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HomeMy WebLinkAboutZBA-06/28/2007 Hearing 1 - 1 2 TOWN OF SOUTHOLD ZONING BOARD OF APPEALS 3 COUNTY OF SUFFOLK: STATE OF NEW YORK 4 ------------------------------------------x 5 TOWN OF SOUTHOLD 6 7 ZONING BOARD OF APPEALS 8 ------------------------------------------x 9 Southold Town Hall Southold, New York 10 11 June 28, 2007 12 9:30 a.m. " 13 14 Board Members Present: 15 16 JAMES DINIZIO, JR. - Chairman/Member 17 GERARD P. GOEHRINGER - Member (start to 2:30 p.m.) 18 RUTH D. OLIVA - Member 19 MICHAEL A. SIMON - Member 20 LESLIE KANES WEISMAN - Member 21 LINDA KOWALSKI - Board Assistant 22 KIERAN CORCORAN - Assistant Town Attorney (10:10-1:20 23 p.m.) 24 tit 25 2 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 INDEX OF HEARINGS: 3 4 Hearing: 5 Page: 6 7 Melnick #6050 3-14 8 Mazur #6044 14-22 9 Brewers Yacht Yard #6051 23-26 10 Ragusa #6048 26-40 11 Landau #6033 40-71 12 Smith #6025 71-89 . 13 O'Reilly #6058 89-102 14 Oak #6046 102-104 15 Lyon at FI #6042 104-107 16 Kelly #6026 17 Reeve #6041 111-119 18 Gross #6045 120-125 19 Iavarone #6047 104; 107-111 20 Sachman #6040 125-134 21 Retus #6049 134-140 22 Cingular at EM #5826 140-187 23 24 e 25 3 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 CHAIRMAN DINIZIO: I'd like to call a Thursday, June 28, 2007 ZBA Meeting to order, please. I'm going to entertain a resolution for a State Environmental Quality Review Act for Type II Actions. (See minutes for resolution.) ************************************* 4 5 9 Hearing #6050 - Melnick CHAIRMAN DINIZIO: Okay. Our first hearing is Mark Melnick. Leslie, that's your application? BOARD MEMBER WEISMAN: Right. CHAIRMAN DINIZIO: Just hold on just one second. She's going to read the legal notice. BOARD MEMBER WEISMAN: Good morning, Mr. Melnick. MR. MELNICK: Good morning. BOARD MEMBER WEISMAN: For the record, I'll read the legal notice: "Request for Reversal of Building Department determination which states that the "as built alteration to dwelling includes demolition and reconstruction of the existing foundation deviated from ZBA decision #5977." ZBA #5955 granted applicant's prior request concerning setbacks related to the proposed increase of ceiling height from 18' to 32' and change from the existing height of 1.5 stories to two stories under Zoning Code Sections 280-116 and 280-124. Also requested, if a reversal is not granted, is a variance amendment for reconstruction of the dwelling with setbacks at less than 75 feet from the bulkhead, less than 35 feet front yard setback, and less than 35 feet rear yard setback (ref. Building Inspector's August 25, 2006 Notice of Disapproval, amended September 28, 2006). Location of Property: 405 Private Road #3 (a/k/a Pine Creek Road), Southo1d." Okay. Good morning. Let me just clarify what my perception is of what the problem seems to be. MR. MELNICK: Okay. BOARD MEMBER WEISMAN: It appears that your foundation, your existing foundation, needed some repairs that were not known at the time, primarily the footing. MR. MELNICK: Correct. BOARD MEMBER WEISMAN: For structural reasons, there was some cracking. And your 6 7 8 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 4 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 9 architect used the word excavation on the plans that were submitted to the Building Department and states that he was in error in using that word. There was no excavation. So you're requesting a reversal of the Building Inspector's Notice of Disapproval on your building permit. Now, would you please add to that. Say if that's correct. MR. MELNICK: It's correct. Basically, when we called the architect when we found out that the structural aspect of the footings was deficient, the architect made the recommendations of what to do based on what he felt was normal building code and they concurred with the builder and they did the work and the Town carne in and inspected the work and approved it and then they submitted their as built drawings and then the Town subsequent to that submitted the rejection of those plans because we varied from the construction. Everything that was built was in kind. It was replaced right back where it was. BOARD MEMBER WEISMAN: Well, I'm sure all of us have been there for a site inspection. I must say you're reconstructing and you're renovating exactly the way that the variance was granted with the exception that some in kind structural work was necessary but in no way did it affect the walls that were there or any other condition of the existing dwelling; is that correct? MR. MELNICK: That is exactly correct. BOARD MEMBER WEISMAN: Okay. I don't have any actual questions. I think it's fairly clear and straightforward. CHAIRMAN DINIZIO: Okay. Michael? BOARD MEMBER SIMON: I have one very easy question. What does CMU stand for, the CMU walls? MR. MELNICK: Concrete Masonary Unit. It's the block that they use on walls. BOARD MEMBER SIMON: That was the only part of the application that I didn't know. MR. MELNICK: I had to ask them that too. BOARD MEMBER WEISMAN: You could have asked 2 3 4 5 6 7 8 10 11 12 . 13 14 15 16 17 18 19 20 21 22 me. 23 BOARD MEMBER SIMON: The other is, now there's no height being added to the foundation? MR. MELNICK: No. BOARD MEMBER SIMON: I have no questions. CHAIRMAN DINIZIO: Ruth? BOARD MEMBER OLIVA: No. I was down there 24 . 25 5 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 9 again and everything looks to me the way you said it was going to be. The footings weren't great and you had to put them back and you put it back in exactly the same place. I have no problem. CHAIRMAN DINIZIO Gerry? BOARD MEMBER GOEHRINGER: No comment but I just wondered if the Building Inspector was here for this particular application or for a future one because I just wanted to ask him a question. BUILDING INSPECTOR VERITY: I'm here to answer any questions. BOARD MEMBER GOEHRINGER: Can I just ask you one question, Mike? As you know we have experienced -- CHAIRMAN DINIZIO: We have a new person here. BOARD MEMBER GOEHRINGER: I understand that. CHAIRMAN DINIZIO: Have him say his name. BOARD MEMBER GOEHRINGER: Oh. Mike, can you say your name for the court reporter, please. BUILDING INSPECTOR VERITY: Michael Verity, Chief Building Inspector, Town of Southold. BOARD MEMBER GOEHRINGER: We know that we've had numerous applications concerning these foundations, these existing foundations and so on and so forth. I just wanted your opinion regarding one thing. Over the years, the Town of Southold has had -- I'm going to say out there there are numerous -- let me rephrase the question. There are numerous block foundations and there are numerous poured foundation. Certainly we went to poured probably in the 50's and the 60's. The old fashioned poured were done basically by the sheathing that was on the house and then they would take that sheathing off which was a foundation type of sheathing to pour the foundation in the 40's and probably early 50's and then we went to that new system that they used. Not the newest system which is the foam system but --. Is there any bet that a 40 or 50 year foundation is probably going to be deteriorated enough that it may not meet current specifications? BUILDING INSPECTOR VERITY: There's a good possibility depending on the type of construction. If it's poured concrete, probably less likelihood. Concrete CMU would, in 40 or 50 years time, does take a beating because of the nature of the construction. It's not done as a unit. It's done 2 3 4 5 6 7 8 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 6 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 5 as an individual block so there is a good possibility. That's basically what's happening. No fault to the homeowner. But it does happen. They get into the project and they notice that it's not something they want to build on. Put something new on, especially a second story, as I'm thinking this is the way this was originally proposed for a two-story building. BOARD MEMBER GOEHRINGER: Do you have any suggestions to the Board or to me regarding this situation? BUILDING INSPECTOR VERITY: I would recommend that an engineer's report be submitted to the ZBA in the future because it will eliminate a lot of the problems like we had in East Marion and a few others that we know of and it turns into, sometimes, a battle. BOARD MEMBER GOEHRINGER: That engineer's report would be -- would probably require the nature of a backhoe or some sort of small machinery to go down all the way to the actual base of the foundation and inspect it? The footings, I should say? BUILDING INSPECTOR VERITY: Yes. BOARD MEMBER SIMON: The question I have is, it's a little late if the engineer's report is sent to the ZBA because by that time, we're going to have an as built house. BUILDING INSPECTOR VERITY: No. That's correct. We usually stress, and again they don't know and we don't want to add a lot of extra cost if you're only doing a $20,000 job. Do we really want to impose a $5,000 or $6,000, whatever the cost may be, of an engineer's report on that? But if it's a larger scale job, something we may even want to consider. But this one was going to you regardless because of the setback. So it's something that would have been a good idea to ask for at the time. That's the point that I'm making. Not for an as built because it's too late. BOARD MEMBER SIMON: That's the point. Not having to do with this case, which is not a problem, is as you know we have other cases which are as built and one of the strongest arguments for us granting the variance is look it's as built. Is there some way of halting that process before it's built and have the engineer's report at least to have these applications scrutinized in 2 3 4 6 7 B 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 7 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 6 a way so that somebody responsible for making built situation where, demolition. BUILDING INSPECTOR VERITY: I guess it's the same as what you do on the bluff. I think you, correct me if I'm wrong, you ask for a soil determination. So there's no reason why you couldn't ask for that as well. I think there's other cases where you ask for engineer's reports, cell towers, different things like that. It would not hurt because it would eliminate the process. It would probably even put the owner in his home at this time instead of waiting to go through the Building Department and through other agencies to get approvals. BOARD MEMBER GOEHRINGER: I just wanted to thank you for that opinion. BOARD MEMBER OLIVA: How about with cinder blocks? Some of the old ones with cinder blocks? BUILDING INSPECTOR VERITY: Something like that should definitely be reviewed and there's no reason why they can't do core samples and stuff like that. It's a cost to the applicant but again it may save months BOARD MEMBER OLIVA: Saves them in the long is going to be held sure we don't get this in fact, in turns into as a 2 3 4 5 7 8 9 10 11 12 e 13 14 15 run. 18 BUILDING INSPECTOR VERITY: And in the long run it could save a lot of time and money. BOARD MEMBER OLIVA: Thank you, Mike. CHAIRMAN DINIZIO: I got a couple of things to say about that. Number 1, the very first thing we said here was that we didn't seem to think that this was much of a problem and if that's the case, why are we denying people and why are you -- this is not your fault Mike, because I'm assuming that you didn't deny them because they went ary of our requirements in the variance. They went awry of the statement that we put at the bottom of our variance, which is any deviation from the -- BUILDING INSPECTOR VERITY: That's correct. CHAIRMAN DINIZIO: It's not like they did anything other than they found a foundation that's not good to build. They're not increasing the setback, they're not increasing the non-conformity anymore than we agreed and quite honestly, perhaps we should be assuming that that foundation may need to be replaced and that there is no reason 16 17 19 20 21 22 23 24 . 25 8 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 9 why you can't just say replace the foundation beyond requiring an engineer's report for something that really has no basis. BUILDING INSPECTOR VERITY: That's correct. You could assume worst case scenario which is what happened here. They went for a second story addition to an existing building. They found out that they couldn't really build on top of the existing foundation and the existing first floor so the entire area was removed or a large percentage of it was removed so it is a deviation as per the disclaimer. CHAIRMAN DINIZIO: But not necessarily a deviation from the variance? BUILDING INSPECTOR VERITY: No, but it still -- that's correct. It still meets, like you said, in place and kind, all the requirements but it's gone beyond the scope of the work. CHAIRMAN DINIZIO: And I agree with you and the times that we live in in Town Hall, I agree with you. But I suppose that the Board should assume when they're granting a variance that perhaps the foundation is going to need to be replaced. That if they do not vary from that that if there's no harm in replacing that foundation, in other words, if it's a crawl space, it's gotta stay a crawl space. It can't be a basement. BUILDING INSPECTOR VERITY: That's correct. I would say you would not be able to increase. CHAIRMAN DINIZIO: There's really no reason why you should have to say no, you can't do that. Now, I understand the East Marion situation, but I think we all learned from that. BUILDING INSPECTOR VERITY: Yes. CHAIRMAN DINIZIO: But we have this one, I believe we have another one today, that perhaps our statement on the back should be reworded to allow for that. BOARD MEMBER WEISMAN: I agree. CHAIRMAN DINIZIO: The Board makes the assumption that it's gonna happen. If it's a 40 year old foundation, it's not going to support the new type of construction that we're going to be putting on it. Especially if we're going to be letting them add a second story. BOARD MEMBER WEISMAN: Yeah. Exactly. CHAIRMAN DINIZIO: Maybe instead of an engineer's report, we'll just say he has what he's 2 3 4 5 6 7 8 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 9 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 always had, I believe, the right to do that. BUILDING INSPECTOR VERITY: If we have the discretion to do so, it's really a no-brainer but if you add the disclaimer in there, it's very hard for us to get around. CHAIRMAN DINIZIO: I agree. BUILDING INSPECTOR VERITY: It's a good thing to have there because some people go beyond what the Melnicks have done. I mean, the Melnicks, in place and kind, don't have a problem with that but as your reading the documentation, you have to follow what's stated. CHAIRMAN DINIZIO: Absolutely. BOARD ASSISTANT KOWALSKI: There's only one thing. When we do the legal notice, we're basing that on what the applicant applies for and if they apply for a small porch addition or, then the neighbors are not getting properly notified that this could also be a demo or a new foundation. Maybe if the applicant would give more information, we could advertise it with that also. CHAIRMAN DINIZIO: We can ask that question. We can say do you anticipate having to redo the foundation. Have it in the record like we did -- BUILDING INSPECTOR VERITY: Exactly. CHAIRMAN DINIZIO: And therefore, he can go back to that and refer to our discussion and know that we discussed it and that it was perfectly fine. We based our decision on that. BOARD MEMBER WEISMAN: I fully support that. BOARD ASSISTANT KOWALSKI: But we can advertise it too though. BOARD MEMBER WEISMAN: There are numerous cases past and, I'm sure in the future, if we reword this so that Mike doesn't have to bring this back to us again, if it is in place and kind. If it's a total demo and a brand new foundation, that's another story. That should have been an anticipated. CHAIRMAN DINIZIO: Everyone's going to be a total demo. BOARD MEMBER WEISMAN: No. I mean in this case, they rebuilt the foundation, they didn't do anything to the house. I'm not talking about the foundation. Well, not, no. Sometimes it's a repair. It's not necessarily -- BUILDING INSPECTOR VERITY: Leslie, I think you're missing that. I think the whole section of 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 10 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 the house in the Melnicks, and the contractor can correct me if I'm wrong, was rebuilt. BOARD MEMBER WEISMAN: Yeah. BUILDING INSPECTOR VERITY: It wasn't just the foundation under the house. BOARD MEMBER WEISMAN: There was a portion toward the water that was rebuilt but that was part of our variance. That was fine. BUILDING INSPECTOR VERITY: Okay. BOARD MEMBER WEISMAN: You know what I'm saying? BOARD ASSISTANT KOWALSKI: We're talking about others too though. Other than this one. BOARD MEMBER WEISMAN: We're not talking about just the Melnick's case. CHAIRMAN DINIZIO: Linda is right. We have to be more specific while maybe more general. I don't know which way it is. We have to work that out. BOARD MEMBER WEISMAN: The point is to avoid circumstances where both you and the property owner or their representative don't have to come back to us. CHAIRMAN DINIZIO: I'm more concerned about having to hire an engineer for something that may not be necessary. That if everybody comes to us with a, they want a replace in kind and everyone of those people has to give us an engineer's report, i.e. dig up next to their foundation so the engineer can certify it because I certainly would want to see what's there, that costs a lot of money. BOARD MEMBER WEISMAN: Well, you know what. I think this is a very valuable conversation. Maybe we can continue at our work session or something so we can work out the details and maybe bring Mike into the discussion too and we can take it from there. We understand what the intent is. In some cases, an upfront engineer's report would be valuable and useful and necessary depending on the scope of the proposed projects. In other cases, it would probably be unnecessary. CHAIRMAN DINIZIO: I think we can do that during the course of our hearing. We can say, I don't think, maybe we need an engineer's report. But we may not need one for every application. BOARD MEMBER SIMON: Before we get to the hearing, there's another way of doing it. We can 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 11 e 1 ZONING BOARD OF APPEALS JUNE 28,2007 2 6 say, obviously you don't want to burden people with the expense of an unnecessary engineer's report. On the other hand, what we have is -- you can put the choice and make it very explicit, that the choice is up to the applicant and if it turns out to be something that would not have been built but for the lack of engineer's report than they are the ones that have to take the responsibility and the full consequences so we won't get into the as built situation. That in good faith they didn't have an engineer's report, they couldn't have known and then they built the thing. Again, we're not talking about this property. If there's notice up front that the person has a choice, you can be safe and have the engineer's report but you're taking a risk if you don't because it might turn out to be one of those cases which should have been presented at the beginning. BUILDING INSPECTOR VERITY: I would assume in a case like that with any type of old foundation, worst case scenario, that there's a good possibility that this could come down and a visual inspection will go a long way. As Leslie knows, you can pretty much -- you know, what you see on the surface is what you get. You can tell by that. BOARD MEMBER WEISMAN: Yeah. BUILDING INSPECTOR VERITY: A good engineer and architect will know at that point in time. You really don't have to dig too deep into it to see what you have. BOARD MEMBER WEISMAN: Jim, this is unusual. We usually deliberate two weeks from now on a decision but I'm going to ask whether or not my colleagues think it's appropriate in this particular case to vote at this point for a reversal? CHAIRMAN DINIZIO: I got to tell you, I would prefer to see the decision written. I don't know who's it is. BOARD MEMBER WEISMAN: It's mine. CHAIRMAN DINIZIO: I know it's two weeks but I think we ought to at least deliberate on something that we have written down on a piece of paper. It's something that we always do. BOARD MEMBER WEISMAN: In general I support deliberation and waiting the two weeks but seeing that this is so straightforward, not the way it's written, but the decision seems pretty -- 3 4 5 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 12 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 CHAIRMAN DINIZIO: Do you have any stuff that you wanted to hand up to us? Just bring all of that stuff up here. MR. MELNICK: Maybe I'll offer -- CHAIRMAN DINIZIO: You can say. MR. MELNICK: Also I'm going to give you this. I don't know if you got that. CHAIRMAN DINIZIO: Are we done with Mike? BOARD MEMBER GOEHRINGER: Yes. Thanks, Mike. BOARD MEMBER WEISMAN: Thanks, Mike. BOARD ASSISTANT KOWALSKI: Okay. Could you do that through the microphone and mention that please? MR. MELNICK: One of the issues -- I received a fax from Linda from Tom McMann from the Soil and Water Conservation District concerning erosion on the property and because the project has stopped, his concern is there's erosion on the property, okay. We -- I spoke with him yesterday or the day before -- the day before yesterday. We had a lengthy conversation. He made suggestions. We remedied the immediate concerns but one of the biggest concerns from Suffolk County is the duration of any disturbance of soil on a project. So my request is since you seem to be in favor of this and since Suffolk County also feels that lengthening the duration could be harmful to the environment, to allow us to proceed and I have a letter from him as well that validates what I'm discussing. So I would ask that if you are in favor, perhaps allow us to proceed with the project. BOARD MEMBER WEISMAN: It's my finding to write the draft and if my colleagues are willing 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 BOARD MEMBER GOEHRINGER: I don't have any objections. BOARD MEMBER WEISMAN: I can do that within twenty-four hours and email it to everyone. BOARD ASSISTANT KOWALSKI: You can also do it by hand if, you know, if there's time later. We'll be here most of the day. CHAIRMAN DINIZIO: I don't mind doing it at the end of the day. BOARD MEMBER WEISMAN: I'll do that. CHAIRMAN DINIZIO: If we just have something in writing that we all agree to and I don't anticipate that we'll disagree with anything but I 21 22 23 24 . 25 13 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 am concerned about voting on something, sir, and then writing it down. That's the problem. MR. MELNICK: I understand that. BOARD MEMBER SIMON: Our concern with creating precedence for future applicants when we find that we are using more informal procedures, in this case, for the very, very best of reasons, I can predict that it won't be long before we're going to get some that aren't quite so straightforward in which the argument is, I need a decision now and you did it before and so we have to be really careful. MR. MELNICK: And I understand all your points about future applications that you're going to probably resolve all that. BOARD MEMBER WEISMAN: Normally, I'm the one who's constantly saying we need to deliberate. BOARD ASSISTANT KOWALSKI: Mr. Melnick, I'll take those copies now. BOARD MEMBER WEISMAN: This is quite unusual for me to make this recommendation. I'll abide by whatever everyone else wants to do. I just felt that holding them up -- if we can word this in a way that's satisfactory, I'm willing to work on something today. Jim, what procedure do you want to follow? CHAIRMAN DINIZIO: I don't mind voting on it at the end of the day. I know Gerry has to leave early but I don't mind. I'll stay to midnight tonight. Doesn't make much difference to me. I don't believe there's a no vote sitting up here. I, for one, would like to just make sure we have something in writing. BOARD MEMBER WEISMAN: Well, depending on how the time goes today, if we even have a break, I can sit down and start writing it. CHAIRMAN DINIZIO: I don't anticipate that. MR. MELNICK: It's fair to say once you have that vote, then we can proceed with the project? BOARD MEMBER WEISMAN: Yes. BOARD ASSISTANT KOWALSKI: Well, it has to go to the Building Department. He'll tell you that. MR. MELNICK: I understand but he's here and he understands also what's happening. BOARD MEMBER WEISMAN: The point is, we'll do everything we can to expedite this for you. MR. MELNICK: I appreciate that. Thank you. Anything else that you need from me? 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 14 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 4 CHAIRMAN DINIZIO: Have you said everything that you need to say? MR. MELNICK: Sometimes there's just a point where you don't need to say anything else. CHAIRMAN DINIZIO: I hit that point right about now. So I'll entertain a motion that we close this hearing. (See minutes for resolution.) ********************************** 3 5 6 9 Hearing #6044 - Mazur CHAIRMAN DINIZIO: Okay. J.and A. Mazur. Gerry? BOARD MEMBER GOEHRINGER: As soon as I find the legal notice, I'll read it. CHAIRMAN DINIZIO: Gerry's going to read the legal notice. BOARD MEMBER GOEHRINGER: "Request for Variance based on the Building Inspector's May 7, 2007 Notice of Disapproval, based on the ZBA #5909 issued August 17, 2006, based on Building Inspector's April 3, 2006 Notice of Disapproval citing Sections 280-122A and 280-124), for approval of the location of the new foundation at less than 35 feet from the front yard line and less than 35 feet from the rear yard line, after demolition of the foundation of the exiting dwelling and related construction. Location: 3200 Camp Mineola Road, Mattituck; CTM 123-5-36.2." I have no discussion on this. I'll wait for counsel. MS. MOORE: Okay. Thank you. Good morning. I have with me today Bob the builder, Bob from Inland Homes and actually, I have -- it's a very nice neighborhood -- I have, I always commend neighbors that come and support because you see it so rarely in this forum. What I gave you is just handwritten description which Bob provided for me -- I think he didn't think I would understand. This actually does help a great deal. Very similar to your previous application, this property received a variance for setbacks and I gave you the foundation survey which shows that it does conform to the previous zoning variances that were granted. Everything -- all the setbacks are in compliance. What happened here is -- I think in the previous hearing, you did everything that was possible to, presumably, keep the foundation exactly as it was and the first floor. There were 7 8 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 15 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 significant alterations to the first floor planned and new construction of the second floor and additions because there was a lot of new construction here and you felt that given the circumstances and the property and the setbacks and the fact you had three roads here, that it warranted being granted the variances that were requested. They began their construction and they were relying on Young and Young's survey, the elevation, the flood elevation certificates that were based on the Young and Young survey and at one point in time, the Building Department, correctly, I believe, stopped and said, "wait, this just doesn't look right." Based on what they know are the flood zones on this street on the other homes because from what I can tell, I know I had several variances along Camp Mineola Road, across the street, just about every house on Camp Mineola in this area has either been reconstructed or a new construction. The Building Department asked the owner to please get another, get a verification of flood elevation certificate. Bob, at that point, hired Ken Wochek, who's the surveyor on this. You have his survey. And they, in fact, did discover that there was a FEMA issue and because of the FEMA issue, the difference in the foundation was a 16 inch alteration to the existing foundation. And that's what Bob drew for me here. The original foundation is still there. The difference between the FEMA compliance and the non-FEMA compliance was raising the foundation by the 16 inches. Also filling in the foundation. It had been dirt. Parts of it he describes are on piers that was the back of the old house. Part of it was on slab. Part of it was a garage. So there was a mixture of foundations here. But the bottom line is that the foundation to be in compliance, as it is shown today, had to be filled and had to have the flow through grate. All of that necessitated some reconstruction or reworking of the existing house. What Bob found, at that point, is that in order to fill with soil, the property, as you know from going over there at least once, maybe twice, it's very wooded. It has access to the back of the property, is somewhat limited because Allen Drive is a private road. They had already committed to the neighbors on Allen Drive that they would not be using that road 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 16 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 for construction and they had promised that and they were keeping to their promise. Faye Court is not even accessible the entire way. So they were limited in their access to this property. They couldn't -- the cost of raising the house to redo the foundation was just, one, extremely cost prohibitive but, secondly, almost impossible because of the trees and the equipment access, there was no way to accomplish this FEMA compliance other than to demolish the first floor wood and repair the foundation -- alter the foundation with the 16 inches and then new construction, new wood. Obviously, at that point, you're previous Zoning Board decision says alterations or changes to the prior decisions means coming back to you. I'm glad that you're considering maybe doing a little bit of word snipping or putting some language in your decisions so that these type of relatively -- I don't want to say minor because certainly the first floor. There was a lot of construction. We don't have environmental issues at all here. We have just practical setback issues. The standard setback issues. It's in kind and place precisely and again it's a foundation alteration that is discovered after the fact, after the Building Department had issued a permit and the owners tried everything possible to do it right the first time. With respect to certifications of engineers or architects and the rest, it's good. I think, generally, most owners get that off the -- generally they look to the architect or the engineer to look at the condition of the house to see if it's suitable structurally for adding second floors or alterations. But the bottom line is that all the certifications in the world -- you end up having to sue them to get compensated. Quite frankly people just don't want to get in the middle of a lawsuit. It's to their best professional opinion certainly when construction takes place, a lot of things are discovered that can't be seen or are latent defects that can't be identified. So it is on a case by case basis. Certainly, I think that's your prerogative. I would like to keep it that way with this Board that you do it on a case by case basis because I think to require it as part of your application sometimes -- you try your best. But people are 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 17 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 human and professional opinions are professional opinions to the best of their ability. But things just can't always be uncovered. In any case, I think I've explained how we got here. We again, request, that the same variances be granted and the only difference being that the 16 inch difference in the structure be permitted. It still meets the height requirements under the code so we're not exceeding any height requirements. The difference, obviously, is the volume -- 16 inch volume difference in the house. But as you can see, the setbacks are relatively generous setbacks here. Allen Drive is a 15 foot setback. Faye Court is a front yard, a rear yard but the bottom line is that every house along this street, I know because I've done many of them, have gotten variances, particularly for rear yards because most of them try to meet the front yard setback but in doing so, you can't meet the rear yard setback. It doesn't, the code just does not address these preexisting, nonconforming lots to the level that's needed. We're here, we can answer any questions you might have. BOARD MEMBER GOEHRINGER: Could you just briefly again sketch -- let me. Just answer this question. MS. MOORE: Sure. BOARD MEMBER GOEHRINGER: This survey that you have furnished, that came from the builder, is an in place, in kind survey? MS. MOORE: Yes, just the foundation. BOARD MEMBER GOEHRINGER: There is no variance from the existing decision that was made except for the height of the foundation and a demo? MS. MOORE: Well, it wasn't demo with the foundation. Remember, the foundation was only altered. BOARD MEMBER GOEHRINGER: Right. BOARD MEMBER WEISMAN: The house was demo. MS. MOORE: House -- first floor demo, yes. The first floor of the house walls, yes. BOARD MEMBER GOEHRINGER: The foundation now is going to be filled in? MS. MOORE: Yes, it actually has been, I think. MR. HILTZ: No, not yet. MS. MOORE: Oh, it hasn't yet? I'm sorry. I 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 18 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 didn't walk on there to look at the whole -- BOARD MEMBER GOEHRINGER: For the record, that's Robert Hiltz, the builder, Inland Homes. MS. MOORE: Bob, you can describe -- I don't think we've done the fill yet and the grates but the foundation has been designed for the grates. MR. HILTZ: Yes, they're all in place. BOARD MEMBER GOEHRINGER: How far are those grates down, Bob? MR. HILTZ: The top of the grates are 16 inches down from the top of the foundation and we have to fill the crawl space even with the bottom of the vents. And then the finished fourth floor would be even with the bottom of the vents and so will the finished grade on the outside of the house. Reason being we're in the flood zone there. So if the water ever got up that high, it would flow in and flow out. That's the reason we have to fill the crawl space. BOARD MEMBER GOEHRINGER: How much of the crawl space is it of the total foundation? Is it the entire foundation? MS. MOORE: Except the garage. MR. HILTZ: Yes, the entire house is the crawl space. MS. MOORE: Under the garage too? MR. HILTZ: No. MS. MOORE: Slab. BOARD MEMBER GOEHRINGER: Thank you. CHAIRMAN DINIZIO: Leslie? MS. MOORE: I would, just to be safe when you asked me that question, this is an existing conditions foundation. If it's deviant by an inch or so -- I don't have it in front of me so I would ask that the variance, if it's reissued based on these setbacks that are on this plan. BOARD MEMBER GOEHRINGER: That's what I was saying because I thought there was a deviation. One or two inches on way or another and that was the purpose of my question. MS. MOORE: There might have been. I think it was like point -- BOARD MEMBER OLIVA: Four inches. MS. MOORE: Four inches, yes, thank you. I think it's just a question of how the surveyor measures. At one point, it was probably to a -- one wall versus the foundation. So, to be safe, I would say, let's use this four inch difference. 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 19 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 BOARD MEMBER GOEHRINGER: I think it was the Faye Court side if I'm not mistaken. MS. MOORE: I believe you're right, thank on you. 4 BOARD MEMBER GOEHRINGER: That was the purpose of my question. MS. MOORE: Thank you. I appreciate it. I'm sorry. Leslie, you were going to ask a question. CHAIRMAN DINIZIO: Okay. Leslie, you all set? BOARD MEMBER WEISMAN: I don't really have questions about -- I think you described the circumstances very fully, very completely. I suppose this builds a little bit upon the previous conversation with the applicant just before you. Procedurally, when in the field, because in the field things always happen that are not predictable on paper, when that does happen, it's sort of up to hit or miss as to when or if or how it's discovered and by whom. It could be the homeowners. It could be the builder. It could be the surveyor. It could be the Building Department. Sometimes we wind up in this situation. However, just for the record, I think when we continue this discussion about things that unfold in the field that are not a part of the variance, that we ought the look at, perhaps, an interim procedure about accountability. Who's responsible for notification? When you discover that something needs to be changed from what a variance -- whether it's the applicant or the builder being responsible for consulting with the counselor with the Building Department to resolve the matter and to inform our office. Somehow or another it seems to me that this is just too much, catch if catch can, when and if. MS. MOORE: Yeah. I think that might also be an internal issue because I know that in this instance -- and Bob, you can correct me if I'm I wrong -- I'm trying to remember the sequence. It was discovered and the plans were actually submitted to the Building Department with the alteration of the 16 inches and they acted on that and then the Building Department stopped it. So I think -- am I correct in that? MR. HILTZ: Yes. MS. MOORE: So, it's very difficult. I think the prior applicant described the same thing. That everybody in good faith tries to correct it and I 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 20 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 know the the Building Department is not trying to do anything to hurt the applicant but at one point or another, it's deemed like, well, now what? You told us to correct it. We corrected it. BOARD MEMBER WEISMAN: I understand that. What I'm trying to say is, you know, what happens in some circumstances is, and I'm not saying that's the case here, the homeowner says, we didn't know. The architect says, I didn't think there was anything wrong when I discovered that the studs were just too rotted. So we can't sister them up -- MS. MOORE: That's very common. BOARD MEMBER WEISMAN: Then the survey will say that information is accurate. So there's sort of a passing along of responsibility and accountability under certain circumstances which makes it time consuming for the property owner to have to keep going back and we're hearing things again. So, I don't want to say anymore about it because it's not absolutely specific to just your application. It's simply a part of the discussion we, as a Board, need to have with staff and with the Building Department about how we might better handle internal communication when things happen in the field that are not predicted and therefore will create problems with the variances that we're granting. MS. MOORE: And I think just providing that extra language in your decisions for unanticipated change that is not a significant change to the variance request. It's not -- really isn't even material to your variance request because a 16 inch foundation change, I don't think in this instance, would have made any difference had it been known from the beginning because there's no other place to put this house. It was made conforming to the front yard but impossible to make conforming anywhere else. BOARD MEMBER WEISMAN: Well, you know, in this case, you're right. But in other cases, if we had seen a total demo on a house that we were assuming was going to be rebuilt where it was, we would not have granted the variance in that location. And that's the point. MS. MOORE: I know. I've been there. I've seen those before. BOARD MEMBER WEISMAN: I know you have. 3 4 5 6 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 21 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 MS. MOORE: I think there's a big difference between those. BOARD MEMBER WEISMAN: It's one thing to say we're reconstructing what we have. It's another to say we're tearing everything down and starting over in which case, the slate is kind of clean. You can change the setbacks at that point. You can alter foundation at that point and you can become perhaps even more in compliance in some circumstances. So that's part, again, of this ongoing dilemma. MS. MOORE: I'm glad you guys are all putting your thinking caps on to try to -- I mean there's always the extremes. Unfortunately, we all know which extremes you're trying to address. It's the middle, the gray area that's always so frustrating because for him, all the materials have been ordered and are sitting there and just like your prior applicant, everybody is poised to continue and it's a real financial hardship and coordination hardship for a builder to be stopped and waiting. BOARD MEMBER WEISMAN: It's a problem for the builders. It's a problem for the environment. It's a problem for the homeowner. It's a problem for everyone. MS. MOORE: Absolutely. Yes, the soil that's usually -- BOARD MEMBER SIMON: Delays are the most serious thing that can happen. The whole thing can be stopped altogether. I think you're a little bit optimistic about whether we can adopt language that is general enough to cover the cases that you would anticipate, yet specific enough so that people know exactly what they have to do without leaving out other kinds of cases. We're going to have problems with interpretations but fairly careful drafting. MS. MOORE: Right. But there is still with communication, the Building Department, they are -- I appreciate that the Building Department has to deal with things in a black and white world. They don't usually deal in the gray. That's their role. Code, not to code. That's there role. But there is always an amount of -- I don't want to say discretion but -- common sense that's applied and I think that the Building Department, with your guidance, can apply that common sense without 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 22 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 going astray. That really has nothing to do with this application. We're here and we would like the variance. BOARD MEMBER WEISMAN: Thank you for indulging my long winded -- MS. MOORE: That's all right. We can talk about this indefinitely. CHAIRMAN DINIZIO: Michael, anything? BOARD MEMBER SIMON: I have no questions. MS. MOORE: Okay, thank you. CHAIRMAN DINIZIO: Ruth? BOARD MEMBER OLIVA: I just want to say, if you're looking at a raise of 16 inches, didn't anybody think of looking at the FEMA maps ahead of time? MS. MOORE: There were -- no, they did. The surveyor, Young and Young had the Fema elevation, the elevation at the field incorrect. I don't know what happened whether it was a faulty equipment when they were doing it, whatever. If you look back at the survey in your file, it was in error. Nobody -- things happen. We don't know where the error occurred and that's what prompted it. But it didn't, unfortunately, you know, here we are months later. CHAIRMAN DINIZIO: Okay. So I'm just going to sum this up. You're asking us basically to grant you the variance we granted before with a 4 inch deviation on the Allen Road side 15'5" to 15'2". BOARD MEMBER OLIVA: 15'6" to 15'2". CHAIRMAN DINIZIO: 15'6" to 15'2". And on top of that, you had to fill the building another 16 inches higher due to the FEMA map which does not require you to ask us for any further variances other than the ones you received from us prior to this; that's correct? MS. MOORE: Yes. CHAIRMAN DINIZIO: Anybody else have any questions? Anybody in the audience wish to make comments on this? MS. MOORE: They're all in support. Just shake your heads. CHAIRMAN DINIZIO: Bobby, do you have anything you need to say? MR. HILTZ: No. CHAIRMAN DINIZIO: Okay. I'll entertain a motion that we close this hearing. 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 23 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 (See minutes for resolution.) ************************************ 3 6 Hearing #6051 - BREWER'S YACHT YARD. BOARD MEMBER OLIVA: "Request for a Variance under Section 280-116, based on the Building Inspector's May 7, 2007 Notice of Disapproval concerning a proposed accessory (pavilion) building at less than 75 feet to the bulkhead, at 500 Beach Road, Greenport." Yes, sir. And you want to keep that open for the use of just your marina occupants? MR. ANGEL: I'm sorry, ma'am? BOARD MEMBER OLIVA: The use is just for the marina occupants? MR. ANGEL: Yes, ma'am. BOARD ASSISTANT KOWALSKI: We need Mr. Angel to identify himself for the record first. MR. ANGEL: My name is Ted Angel, Alpha Consulting on behalf of Brewer Yacht Yard. Good morning, ladies and gentlemen. BOARD MEMBER OLIVA: Good morning. Sir, do you want to tell us what you're going to be using this for? MR. ANGEL: The pavilion which is basically just an open area with a roof is going to be used for the relaxation of the marina patrons. BOARD MEMBER OLIVA: Only? MR. ANGEL: Only, yes, ma'am. BOARD MEMBER OLIVA: Well, from looking at it, that's about the only place you can put it on that piece of property. MR. ANGEL: Yes, ma'am. BOARD MEMBER OLIVA: The Planning Board certainly is in favor. We received a letter from them. Let's see if any of my colleagues have any questions. I don't have any questions. CHAIRMAN DINIZIO: Gerry? BOARD MEMBER GOEHRINGER: How would you stop people from the restaurant from using it? Would you post signs for that? Would you -- I mean it's nice to say that it's only used for the patrons of the marina. We're referring to all those people that dock their boats there and any friends that they may have? MR. ANGEL: Yes, sir. It's the marina patrons and their guests basically. It's just a relaxation area where rather than stack boats, it's a grassy 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 24 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 area that can be used. It will have a pervious floor and it will meet all the requirements. BOARD MEMBER WEISMAN: To what extent do you anticipate -- I understand you're going to use gravel -- MR. ANGEL: Yes. It will be a pervious floor, ma'am. BOARD MEMBER WEISMAN: Roof runoff? MR. ANGEL: There will be a dedicated dry well and the leaders and gutters will go directly to that. BOARD MEMBER WEISMAN: Because I didn't recall seeing that on the survey. MR. ANGEL: It's on the plan. BOARD MEMBER WEISMAN: You will be proposing to include that? So you have no objection to that as a condition of approval? MR. ANGEL: Not at all. BOARD MEMBER WEISMAN: That's all. CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: As you know, there have been concern raised by the LWRP coordinator regarding the setbacks both from the wetland area on one side and the bulkhead on the other side that you're here for the variance. Can you explain why it needs to be as close as it is to the bulkhead, 13 feet from the bulkhead is only about 7 or 8 feet from the walkway. Could it be further back on that lawn? MR. ANGEL: We have DEC approval for this project and there was a small variance granted. The concern is that on the other side where the setback is larger, there is some vegetation, not much to speak of because there is a trench and right on the other side is a paved parking lot belonging to Southold Town that hasn't actually observed any setbacks at all but it's there. So the conditions being what they are, the DEC decided that they would prefer to have the larger setback on that side and since at the point, at the most forward point, the corner of the pavilion is actually well beyond one hundred feet back from the bulkhead and the public waterway. That side setback and, with all due respect, that side setback is almost irrelevant, I would say, in this particular case because the slips, the entire indentation of the marina is on Brewer property. It has nothing to do with the public areas. As a 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 25 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 6 matter of form, we're just complying with all the requirements here but that really does not apply according to the code and I have spoken to the supervisor about it. I've had some discussion with the Building Department about it but they say they're locked in because of the code saying bulkhead and being non specific. This is hundred and some odd feet back, a hundred and forty feet almost back from the public waterway where the bulkhead on this property separates it from the public area where the public can navigate it. BOARD MEMBER SIMON: Let me just get this clear. All bulkheads are on private property almost. Everybody's house along the bay and the sound. Are you saying that the waterway against which this, the bulkhead is close, is not public waterway? That that is owned by Brewer's Yacht Yard? MR. ANGEL: Yes. That is developed as slips from a long time ago so basically this is not an area where the public can just come in and navigate because it is privately used by marina patrons. Since also, in conjunction with your question, I would add to that that the setback being as narrow as it is has absolutely no impact because there's a blue stone walkway. So there is no environmental concern. We've also complied with a suggestion by the DEC, we've indicated on the plan for plantings. So, it'll be basically a very clean cut process and structure and basically it'll be totally noninvasive and impact free of any concerns that anyone should have. It's just that wording in the code, and the Building Department agrees, the wording in the code ties their hands because they have to say, well, it's a bulkhead. If it were 250 feet back on private property, it's still a bulkhead. So the code is very broad in this particular sense. My understanding is that there will be some revision at some point in time but basically some measure of discretion, I would hope, would be given to all the talented and capable people in the departments so that when they see this, they know it shouldn't really apply. But we're here because it is so broad in its scope. BOARD MEMBER SIMON: It's as though, as far as the facts of the matter go, it's almost as though that waterway would be like a pond that was 2 3 4 5 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 26 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 within the boundaries of some property. MR. ANGEL: It's affective1y a basin, a rather large basin. BOARD MEMBER SIMON: Because it's continuous with the bay that it leads to that end unit? MR. ANGEL: Yes, exactly, sir. CHAIRMAN DINIZIO: Okay, Michael? BOARD MEMBER SIMON: Yes. CHAIRMAN DINIZIO: Ruth? BOARD MEMBER OLIVA: I don't think I have anything else. I wish your neighbors next door would keep as good care of their property as Brewer Yacht Club. MR. ANGEL: Thank you, ma'am. BOARD MEMBER OLIVA: It looks terrible. I have no further questions. CHAIRMAN DINIZIO: Okay. I'll ask if anybody in the audience would like to say anything for or against this application. Mr. Angel, do you have anything else you'd like to add to this? MR. ANGEL: No, sir. CHAIRMAN DINIZIO: I have nothing. Hearing nothing, I'll entertain a motion that we close this hearing. (See minutes on resolution.) *************************** 3 4 5 7 8 9 10 11 12 e 13 14 15 Hearing #6048 - Ragusa. CHAIRMAN DINIZIO: Next hearing is Paul and Cheryl Ragusa. Gerry is going to read the legal notice. BOARD MEMBER GOEHRINGER: "Request for a Variance under Section 280-116A, based on the Building Inspector's May 20, 2007 Notice of Disapproval concerning a proposed additions and alterations to the existing dwelling at less than 100 feet from the top of the bluff adjacent to the Long Island Sound, at 1600 Hyatt Road, Southold; CTM 50-1-6." CHAIRMAN DINIZIO: Is anyone here representing the Ragusas? MS. MOORE: I'm over here. CHAIRMAN DINIZIO: I'm sorry. MS. MOORE: I have Mrs. Ragusa here, Don Philer (phonetic) who's the architect and John Bertani, who's the builder. So, hopefully we can answer all questions with everybody that's here. What I handed up to you is -- actually most of it is already on the plans. If you pull -- these 16 17 18 19 20 21 22 23 24 e 25 27 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 4 plans have the square footages down at the bottom area for square footages. Don Philer just added a little more clarification, I think, as to how that's broken up. The existing house is full year-round house. First floor is 1620 square feet existing. The second floor is existing 787 square feet. It contains two bedrooms and one bath. The design of it, obviously, if you saw it, is somewhat outdated. The views of the waterfront views can pretty much be seen out of relatively small windows on the second floor. This house really needs to be renovated, upgraded to current standards. What Mrs. Ragusa with the help of Don Philer propose is to essentially change the roof line, add additional space on the second floor. What he provided for me is the additional square footage. That additional square footage will provide for an additional bedroom, an additional bathroom and just a sitting area porch. You can see that on the plans. The first floor is remaining, for the most part, the same all interior alterations. There is a 185 square feet of additional space to the front entrance area and then there is a corridor leading to the garage which is all landward of -- an addition that is landward of the existing structure along the front of the property. When they designed this, they were attempting to avoid having to come in for variances. The design was, at least the belief that they had and we all had at the time was, that second floor, when you have an existing second floor and you're making an alteration to the second floor, that it would be permissible under the code because it's landward of existing structures. You have the full first floor that is an existing structure and as long as you step it back a certain amount, and that depends on who you ask, could be undertaken and you -- because again, you're not making any major changes. You're doing a standard second floor alteration and additional -- it's equivalent to roof change and obviously, the side walls for height of this second floor have to comply. John Bertani was prepared to work on this. They started, they submitted the construction drawings and at that point, unfortunately, there was some disagreement as to whether or not we would comply without having to go to the Zoning Board. We had already, it was my 3 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 28 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 understanding that we would comply, Don Philer's, most of the practitioners out here were understanding the landward of existing structure to allow certain amount of second floor alterations again, to an existing two story house. We call it a two story house because it has two bedrooms and a bath upstairs. The Building Department looked at it, I think as a one and a half story. It didn't really matter in the long run because here we are. The only thing that, unfortunately in this instance, I had already submitted to the DEe, to the Trustees, to everybody that is required to get approval from, the Health Department. So we spent months going through that review and approval. Obviously, you know how I work. I bring it to you because we run all the applications concurrently. At this point, we have all of our approvals and we're here to this Board to ask for the variance from the setback to the bluff in order to be able to make the alteration to the second floor. Mrs. Ragusa will tell you that when she was looking for a home, she came to this house and saw it was a substantial house. It needed renovations but because it was not a cottage, that is a tear down, that is essentially there's no house there. You're dealing with a vacant piece of property. Here you have a substantial house and there is a lot of this house that is intended to be retained. John has not been hired to do more than alterations to the first floor and the new space is primarily, as I said, the 700 square feet added to the existing 780 square feet of existing second floor. You did, I saw from the -- thank you, Linda, for forwarding on to us -- we did get response from Soil and Water. It is a stable bluff. This property will have proper dry wells. That was certainly something that we originally designed with that intent. It was a condition of all the other agencies as well. The non-turf buffer along the bluff to be sure that we don't have water running down the bluff and keep it as vegetated as it has been. Aside from that, we meet all of the other side yard setbacks, setbacks of the house lot coverage, everything. The only variance that, of course, we need is the one from the bluff because, as I said before, this is the existing house and we are maintaining the existing house 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 29 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 with the alterations that are proposed. There is also along the back, existing stoops and stairs which are being altered to -- when the wind -- there's a french door that you're putting in or slider -- they're sliders now and there's a replacement of the back stoop. Aside from that, the house is staying as is. BOARD MEMBER GOEHRINGER: And what's the setback from the bluff to the stoop? MS. MOORE: To the stoop is, I know I gave it to you, the survey doesn't give it to me. BOARD MEMBER GOEHRINGER: It's showing 17'. BOARD ASSISTANT KOWALSKI: It shows 17. MS. MOORE: So we're cutting back, again we're cutting back from what's existing. BOARD MEMBER GOEHRINGER: It is 17? MS. MOORE: It is 15 right now. The existing is 15. We are cutting back to -- I don't have the measurement on this one -- 17, I believe. CHAIRMAN DINIZIO: Plus or minus 17. MS. MOORE: Plus or minus 17. BOARD MEMBER WEISMAN: So you are, in fact, increasing the setback -- MS. MOORE: I'm sorry, we're what? BOARD MEMBER WEISMAN: You are increasing the setback by removing the old stoop; is that correct? MS. MOORE: No. We're decreasing. We're making it smaller. CHAIRMAN DINIZIO: You're decreasing the non-conformity. MS. MOORE: Decreasing, right? BOARD MEMBER WEISMAN: Decreasing the amount of non-conformity. That's what I meant. BOARD MEMBER GOEHRINGER: Let me go over this. It's kind of a busy plan. MS. MOORE: Okay. Well, that's why I have the architect here. BOARD MEMBER GOEHRINGER: The part of the house that is facing the Long Island Sound on the second story includes what, a balcony? MS. RAGUSA: Two bedrooms and the bathroom on 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 the 24 MS. MOORE: Come on up, you have to get on the record. She has memorized the plan much more than I have. MS. RAGUSA: Hi. I'm Cheryl Ragusa. BOARD MEMBER GOEHRINGER: The back of the . 25 30 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 house which is the house opposite Hyatt Road. MS. MOORE: I'm sorry. Back being the road front? The sound front, yes. MS. RAGUSA: That's where the two bedrooms are now. They're on the sound side and where I would create the new bedroom and bathroom is on the street side. BOARD MEMBER GOEHRINGER: there any balcony on the back MS. MOORE: No. The water I understand. side? side right now Is 3 4 5 it 7 is 9 BOARD MEMBER GOEHRINGER: I understand. MS. MOORE: So the proposal is to have the two bedrooms on either side and then the area between the two bedrooms is a stepped back open balcony. MS. RAGUSA: Sort of halfway back above the living room. BOARD MEMBER GOEHRINGER: That balcony faces the road? MS. MOORE: Water. BOARD MEMBER WEISMAN: But it's not protruding beyond the first floor. BOARD MEMBER GOEHRINGER: Right, I understand 8 10 11 12 . 13 14 that. 15 MS. RAGUSA: It's setback actually. MS. MOORE: The back wall of the balcony, because you have the open balcony, the wall, the back wall of the balcony is a 7 foot setback. MS. RAGUSA: From what's existing now. BOARD MEMBER GOEHRINGER: That does not change the setback from the top of the bluff in any way; is that correct? MS. RAGUSA: It actually goes further back. BOARD MEMBER GOEHRINGER: I'm just trying to include all of this in the decision so we don't see you again. MS. MOORE: If you follow these construction drawings, we're good because you actually have the construction drawings. That's what John Bertani is working off of. It works for you right? There's no problem? (Speaking to Mr. Bertani) BOARD ASSISTANT KOWALSKI: You talked about a 7' setback. Is that from the bluff? MS. MOORE: No, no. The back of the house. BOARD ASSISTANT KOWALSKI: Seventeen plus seven so it'll be 24' back from the top of the bluff, right? 16 17 18 19 20 21 22 23 24 . 25 31 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 MS. MOORE: Yes. I'm measuring the closest point which is the first floor. MS. RAGUSA: Actually, it's 17' from this (indicating), so it's actually further back where the balcony is. MS. MOORE: You're right. The angle of this bluff significantly increases as you head north so the setback at it closest point at the one corner furthest southwest is the closest point of 17'. Everything beyond that increases because the bluff is on an angle. BOARD MEMBER WEISMAN: The questions are in part because we have a very small accurate survey. MS. MOORE: You have in your file a big one. BOARD MEMBER WEISMAN: I don't believe we have -- well, it's large on the paper but it's not large. We don't have a site plan, an architectural site plan. It's just easier to read it on the site plan. MS. MOORE: Yeah, it's because of the buffer that is drawn in. It's a little difficult to read. BOARD ASSISTANT KOWALSKI: Point 40 feet to an inch too is very small. MS. MOORE: You know why because Joe Indegno (phonetic) put in this huge right of way. This is part of the title survey. BOARD MEMBER GOEHRINGER: That's all I have. BOARD MEMBER WEISMAN: You know dimensions on this are difficult. CHAIRMAN DINIZIO: Leslie, you can ask some questions. BOARD MEMBER WEISMAN: Actually, I think the questions I have were already answered. I do have just one additional one. You are proposing a two car garage that's attached by a breezeway or something that steps up? MS. RAGUSA: It's actually a one car. BOARD MEMBER WEISMAN: One car, okay. And you have an existing accessory garage as you enter the property, two car I believe? Will you continue to use that for cars? Are you going to use that for storage? It's there. You're not taking that down, in other words. MS. RAGUSA: Probably, maybe, if we have an extra car, we'll leave it down there, garden storage stuff. MS. MOORE: She has children, so the children usually end up using a lot -- 3 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 32 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 MS. RAGUSA: No, I don't have children. MS. MOORE: Oh, you don't. I have you mixed up with somebody else. I apologize. Got the wrong client. MS. RAGUSA: I have cats. BOARD MEMBER WEISMAN: A family you just acquired. I was just curious. I have no other questions. CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: I have a question. MS. RAGUSA: The reason I wanted to -- CHAIRMAN DINIZIO: Ma'am, ma'am, you've got to get up to the microphone. MS. RAGUSA: I'm sorry. I'm not used to this. The reason I just wanted the other garage is because the property is on a hill so it's at the bottom. So if you come in and if it's snowing or raining, you know it's a long walk up the driveway. Preferably, I would have rather just have it there. I don't even know what I'm going to do with the other garage but it's there so I guess storage. Anything else? CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: Yes. I'm happy with what I've heard about the accessory garage and the second floor. I have a question about the deck. It doesn't even appear on the site plan. This is going to go out some distance beyond the house; beyond this existing stoop apparently. Is this going to be a grade level deck or raised? MS. MOORE: No, the house -- it's a stoop the existing stone patio is there. BOARD MEMBER SIMON: The word deck is in the description, right? MS. MOORE: No. Proposed stoop. BOARD MEMBER SIMON: I have in my notes an 8 foot deck will replace this patio or am I thinking of another property? MS. MOORE: I think you're thinking of another. Did I write that? Was that an original plan maybe? BOARD MEMBER SIMON: I'm looking at the first floor plan. MS. MOORE: Of the construction drawing? BOARD MEMBER SIMON: Yes. And I'm also seeing new stoop brick and then it says -- MS. MOORE: New stoop brick on concrete. MS. RAGUSA: I think what it originally was 3 4 5 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 33 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 -- right now there's a long stone patio that you walk a few steps down to what I had originally proposed but honestly at this point, I just want the house, was to make it closer to the house and wider and raised. So in another sense, sort of change the dimension. Put it further away from the water so when you walk out the door, you don't walk down the steps. BOARD MEMBER SIMON: So you're not going to be extending it closer to the water? MS. RAGUSA: No, the other way. I would rather shorten it and make it just a little wider. BOARD MEMBER SIMON: I was confused about the drawings here on the plan. BOARD MEMBER WEISMAN: Eight foot landing. MS. RAGUSA: Basically, it would be a place where you could walk out and have a table out there. That's without the steps, if that's okay, otherwise, I'll leave it the way it is. BOARD MEMBER SIMON: Let's see. According to this survey, this is why -- existing steps which are apparently 5' from the edge of the buffer -- that's going to be removed? MS. MOORE: Fifteen feet behind the buffer. BOARD MEMBER SIMON: Fifteen. And that's actually going to be made -- the setback there is going to be increased rather than decreased; is that correct? MS. MOORE: Correct. BOARD MEMBER SIMON: Okay, then that answers my question. CHAIRMAN DINIZIO: Okay, Michael? Ruth? BOARD MEMBER OLIVA: Just one point. I think it was noted in the Soil and Water report that you have kind of a gully forming on the east side of the property, that there was some debris going down there, that you should be careful not to do that. MS. RAGUSA: Actually we've been planting. BOARD MEMBER OLIVA: The planting is on the top. There looks as if there have been brush pushed down there. Maybe not by you but by somebody else. MS. MOORE: It's possible. BOARD MEMBER OLIVA: Just be careful of that because you can start eroding that. You're in a place where you know bluffs erode rather quickly sometimes. 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 34 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 MS. RAGUSA: My husband's a little paranoid. So he's already been out there planting. The Trustees told us to make a buffer so he's already started planting new plants along there according to what they had asked for. But if there's anything down there, maybe it was there from the prior owners. BOARD MEMBER OLIVA: I think I saw some brush that was thrown down there, sticks or something that somebody had thrown. MS. MOORE: We'll have her husband check it. MS. RAGUSA: I don't walk down there, there's poison ivy and stuff. BOARD MEMBER OLIVA: Just be careful. Poison ivy is supposed to be very virile. MS. RAGUSA: I know, actually, that's the one good thing about poison ivy we've discovered. It actually holds the bluff. That's why I'm not walking back there. BOARD MEMBER OLIVA: It does a good job. I have no other questions. BOARD MEMBER SIMON: One further question, the letter from the neighbor, I just wondered if you responded to it. The person says that there is a two plus car garage that exists already. Why would anyone want to disrupt the bluffs or take a chance on losing them for another garage? MS. MOORE: Well, I didn't think -- I didn't want to entertain a debate. I don't know if they're here or not but I think she explained that during the off season snow or whatever to have a one car garage near the house makes more sense. BOARD MEMBER SIMON: It's not on the bluff side at any rate. MS. MOORE: No, it's not on the bluff side at 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 all. 20 BOARD MEMBER SIMON: That's what I was inviting you to say. MS. MOORE: Oh. I think it's obvious where in my presentation, I explained that it is landward of the existing house. MS. RAGUSA: I basically just wanted one attached garage so when you come in and it's night and winter, I don't want to be -- if I'm coming in alone, I don't want to be walking up and entering a house outside. I'd rather be able to go right into the house. BOARD MEMBER SIMON: My understanding is that 21 22 23 24 . 25 35 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 the letter is a little bit off the point because the garage is not going to be close to the bluff. MS. RAGUSA: I don't think they ever saw the plans or anything. BOARD MEMBER SIMON: Okay. MS. MOORE: The good part is on the other side Mr. Ludendorf (phonetic) sent a letter in support. I gave that to this Board before. CHAIRMAN DINIZIO: I got a couple of things to say. Probably not good for you guys. MS. MOORE: Not good for us? CHAIRMAN DINIZIO: I understand this structure built beyond the existing structure that you can do that. I understand our code says that. I don't know how it gets interpreted. This is why after the Walz decision because you're still increasing the bulk of this house no matter how you look at it. Common sense tells you that you're adding the garage that you were turned down for for the same reason. That it's within the 100 feet of the bluff. So even though you're adding, you're building on the opposite side of that house, that entire house is still within the non-conforming setback of 100 feet from the bluff. So I don't know how you increase that without being turned down by Wa1z. MS. MOORE: I don't want to debate the section of the code and what it says. I leave it to you to interpret and the Town Attorney to advise you on what it says. We never got a denial on the garage. We had met, prior to starting our applications with everyone, with the Building Department with Damon and our understanding was that we were in conformity with what the code said as far as a landward of the existing structure. I was at a meeting where you expressed your viewpoint that at the time that legislation went into effect, the intent was kind of what we're doing here with the garage, that if you were building an addition or a garage or something landward of the house, that that clearly wasn't intended to come in because you already have the whole house in place closer to the bluff. I wasn't around or I don't know if I was paying attention when that legislation went into the books. But for a very long time, the interpretation has been because you're not disturbing the foundation and the majority of the 4 5 6 7 8 9 10 11 12 .. 13 14 15 16 17 18 19 20 21 22 23 24 .. 25 36 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 house, it is not an impact, in a sense, on the bluff. You have an existing structure and that's why that section of the code was interpreted as it was. Interpretations change. People come and people go. The code says what it says. How it's interpreted, we have to deal with on a daily basis. Certainly, I know now that even a second floor alteration because of Walz, if you're interpretation is that Walz overrides that section of the code so regardless of the fact that it is landward of an existing structure, Walz overrides. I'm not sure that I agree with that but I don't want this case to be the argument or the delay for that discussion. We're here. We can have a drink and debate it all night long. In this instance here we are and it's a relatively minor alteration as far as square footage and so on and again, there's no foundation change. A lot of this house is not even going to be altered so maybe code needs to be clarified. I think that the Board has, this Board participates in Board revision and the Town Board discussed the possibility of making a code change so it's clearer. So I now know because of this case but other people out of town come look at the code and they should, in all fairness to them, also have the ability to read the code and not rely on Walz because Walz is not a code; it's an interpretation. So an out of town architect with an out of town attorney would be surprised if they had no reason to come to the Building Department except for an application for a building permit at the end. So I'd hate to see anybody go through thousands and thousands of dollars of architectural plans with one idea in mind and then come into the Building Department based on what the code, you know, how somebody might read the code. ATTORNEY MEMBER CORCORAN: They can just hire a local attorney though, right? MS. MOORE: I think that's always the best. Thank you for that endorsement. Not me but anybody else. BOARD MEMBER SIMON: I would like to respond to this a little bit and I hope you aren't misleading any perspective clients. As far as Walz -- I don't want to talk about Walz. What I'm saying is what the code, according to what you're saying what I hope your clients may believe, what 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 37 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 the code actually says is that these things apply solely to the fingerprint of the property. The word fingerprint is not in the code. It isn't at all clear that the code says anything different from what the Walz says. I have recently over the past several months re-read the full debate. I wasn't on the Board at the time of the debate and it seemed to be totally compelling that the code needed to be interpreted. The interpretation which is what many people said and maybe some of your clients believe even so-called outside architects believe is simply not founded in the code. I think this is, at least, it's an open question. MS. MOORE: I would again respectfully disagree with that analysis in that there is a whole provision on the permission of any owner of someone to do renovation, reconstruction, all of the things even on a non-conforming setback. So there was a very long time and maybe in the last 10 years was the interpretation of volume, horizontal volumes an issue and that's where Walz came in. For a very long time the Building Department took a view that if you maintained the setbacks out, you could work anywhere up, down, wherever as long as you maintained the non-conforming, did not increase the degree of the non-conformity. BOARD MEMBER SIMON: I understand. That, as you can see, is not what's in the code. You're talking about past practice of the Building Department. This Walz decision said that the Building Department so for as they were doing this were not acceptably interpreting the code. We're not talking about what the code says versus what Walz says. CHAIRMAN DINIZIO: I think we want to leave 4 5 6 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 that. 21 MS. MOORE: Yeah, I think, because that's a long debate. CHAIRMAN DINIZIO: I know I opened up a can of worms and I understand that fully. I think we need to get you on the record as to reasons you think you're here and we're going to make our decision. That may come up during our decision and I, therefore, wanted to discuss it. ATTORNEY MEMBER CORCORAN: Can I say one thing? Let's talk about where we are now with this application. We have additions to an existing 22 23 24 e 25 38 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 structure and you know that characterization is not set in stone. You're asking for a variance, in essence, a Walz variance, for additions to that structure within the 100 foot setback. So this Board needs to consider that. Then you need to consider this new garage structure, correct? There are two issues there. Is it landward of an existing structure? If it is landward of an existing structure and meets all other setbacks, it probably does not need a variance or may not need a variance depending on how this Board wants to read that section of the code. If they decide it is not exempt, they will need to decide whether they want to grant it a variance, right? CHAIRMAN DINIZIO: I don't know that the Notice of Disapproval actually says that, Kieran. I don't know that we can -- you can advise us certainly -- I don't know that we can even have that discussion. My feeling is -- ATTORNEY MEMBER CORCORAN: Which discussion? CHAIRMAN DINIZIO: About the garage. MS. MOORE: The garage is conforming with respect to setbacks. CHAIRMAN DINIZIO: It is. They were never turned down for the fact that there was a garage there. They really weren't turned down for any setback. ATTORNEY MEMBER CORCORAN: I thought I heard you questioning whether you agreed or disagreed with that determination. CHAIRMAN DINIZIO: I just disagree with the fact that it's exempt from Walz because of some certain part of the code. That if it's not conforming and the building is non-conforming, then Walz applies. BOARD MEMBER WEISMAN: Just talking about the way the notice was written. CHAIRMAN DINIZIO: I know that I'm going to have that discussion at deliberations. I didn't want to have that discussion at deliberations if we didn't have that discussion here. ATTORNEY MEMBER CORCORAN: Okay. I don't understand how what I said is inaccurate. If you're going to have the discussion about whether or not to apply the exemption or whether or not to apply Walz, that's essentially what I just said. CHAIRMAN DINIZIO: Okay, that's fine. MS. MOORE: Okay. I believe that we're 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 39 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 dealing with issues of setback to the bluff and whether you're applying Wa1z or the section of code that deals with the setback to the bluff. We have an existing residence that the intent of this these modifications to the house is not to demolish the house. It's to retain a significant part of the house. In fact, she's retaining the same use as she has presently. The second floor has the two bedrooms and the bath. This is adding a bedroom and a bath to the overall use of this property; to the use of this house. The setbacks will not be impacted because, again, there is no change to the foundation. There is no disturbance to the foundation and John, if you want to put on the record as far as the construction style with respect to impact, whether it's, I think that the issue whether it's Walz or the other, the only setback is -- the only variance that we're dealing with is the one setback to the bluff and what our proposed construction, how that might impact your code and the provisions on maintaining setbacks for the protection of the bluff. I believe you already have an opinion from Soil and Water which has stated, for the record, that there is no impact to the bluff here; that you have to be careful with clippings. But for the most part, there is no degradation of the bluff through this proposed construction. John, if you would just put on the record what you're alterations to this house, to the extent that they will impact the base, the foundation and the first floor. MR. BERTANI: John Bertani. As far as -- we're not going to disturb the foundation in any way with this addition on the second floor. Basically, we're going to be retaining almost all of the second floor floor joyce except where that deck area is going because we have to pitch that area so they will be replaced in that area. And then we're just going to be going straight up on the existing walls of the existing first floor with the second floor and putting a new roof on. That's the extent. And if it's approved for the removal of that stoop and to raise that stoop. That's the only work we'll be doing on the exterior in the back on the bluff. MS. MOORE: Thank you, John. CHAIRMAN DINIZIO: Okay. Anybody else have questions from up here? Ms. Moore, do you have 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 40 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 anything you would like to add? MS. MOORE: Not unless you have other questions. CHAIRMAN DINIZIO: Nope. I guess I can go to the audience. Anybody have anything for or against this application? Any comments? Okay. Hearing done. I'll entertain a motion that we close this hearing. (See minutes for resolution.) ******************************** 3 4 5 6 7 CHAIRMAN DINIZIO: I'll entertain a motion that we take a five minute break. I need a motion. (See minutes for resolution.) (Whereupon, a break was taken from 11:00 - 11:15 a.m.) ******************************** 8 9 10 Hearing #6033 - Landau CHAIRMAN DINIZIO: The next hearing is for Adrienne Landau. Is this Michael's? BOARD MEMBER GOEHRINGER: It's mine. CHAIRMAN DINIZIO: Gerry's? BOARD MEMBER GOEHRINGER: "Request for Variances under Sections 280-116 (formerly #100-239.4A-1), based on the Building Inspector's January 4, 2006 Notice of Disapproval, amended April 4, 2007, concerning proposed new dwelling construction, after substantial demolition of existing dwelling, with setbacks less than 100 feet of the top of the bluff adjacent to the Long Island Sound, at 855 Soundview Avenue, Mattituck; CTM 94-1-7." I am not going to ask any questions because the questions I will ask are basically germane to the questions that I have difficulty in understanding some of the plans and specifications to this project. MR. PASCA: Anthony Pasca of Esseks, Hefter and Angel for the applicant, Adrienne Landau and Ed Fagin. Before I start, I want to introduce everyone who is here today, who may be speaking to you. This is Stuart Narofsky, he's the architect for the plan and he's going to take you through the plans and try to explain and answer any questions you might have about the plan. Adrienne Landau, the applicant, and Ed Fagin sitting over there (indicating) and Rob Hermann is the Environmental Consultant. He participated in this process with Mr. Narofsky, he did the application 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 41 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 before the Trustees and he's here to address some environmental questions, if you have them. Before I turn it over to Stu, there's a couple of things I'd like to hand up. One is Ed and Adrienne went to all their neighbors and they showed them the plans and they got several letters to support the application. So we have some of those to hand up. Stuart has also prepared some exhibits for you guys that he's going to take you through and he made some individual size that you can follow along. So I'm going to hand up some of those too. I think there's six there so maybe one short but -- so what I'd like to do is have Stuart take you guys through the design and the history of project a little bit and then we'll go from there. BOARD MEMBER GOEHRINGER: Can I just ask you counselor, did I see a model outside? MR. PASCA: It's right there (indicating) and he's going to make that in a way that you can BOARD MEMBER GOEHRINGER: Maybe you can put that on top somewhere? MR. NAROFSKY: Wherever you'd like it. BOARD MEMBER OLIVA: Right in front of Gerry. CHAIRMAN DINIZIO: Gerry is building a little village of these models. MR. PASCA: Building models. MR. NAROFSKY: May I speak from here as opposed to the podium? CHAIRMAN DINIZIO: Just speak so she can hear 3 4 5 6 7 8 9 10 11 12 . 13 14 15 16 you. 17 MR. NAROFSKY: By the way, the exhibits that I have in the model were in hope of clarifying the design intentions and make it as clear as possible. The understanding, the hope is that the design aspect, the clients requirements and the way we're doing things are not really up for discussion but a mere exhibit of what we're trying to complete as a home for our clients. Back in summer of 2005, Adrienne Landau and Ed Fagin, who were clients of mine from New York, have a summer place out here for, I think ten years? How long? MR. FAGIN: Nine years. MR. NAROFSKY: Invited me out to see their home and property. I have to admit that other than driving to Orient Point, I've never been in this neck of the woods before. We do build in the Hampton side. BOARD MEMBER OLIVA: This is nicer. 18 19 20 21 22 23 24 . 25 42 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 6 MR. NAROFSKY: I'm not trying to stroke the Board, but I do have to say it was refreshing to see that there was a natural quality and character. When I first drove up to their property, I couldn't find them. So it was a nice surprise to walk to this property and then upon entering their house and walking around back and seeing the amazing view and the bluff and everything. Their house, however, and I believe everyone's been there, is in pretty much disarray. It needs a lot of maintenance and tender loving care. They require additional space, very small, 1100 square foot approximately and very little room for family and friends to come and visit and enjoy the property with them. So it was their desire initially to roughly increase the size of the home to what programatically came out to approximately 3500 square feet at the time. Their needs were pretty basic. They wanted a kind of open loft living space. They wanted a separate master bedroom suite and they wanted guest rooms. They wanted a studio for Adrienne; she paints, she's an artist and what a great environment for her to be out and painting and doing her art work. So those were the basic requirements and going along with that, of course, was look at our view. We want to take as much advantage of the view and openness as we could. After being retained to begin developing the home, the first thing we did was come out here and get the codes. Familiarize ourselves with the basic codes; set backs and other concerns and unfortunately, to bring up the code we did read was the basic understanding that if you are renovating or adding, that I could work up and around the existing home because it was pretty obvious that their home wasn't 100 feet back from the bluff nor were we proposing to build a structure that far back. We subsequently started developing a schematic design and maybe the easiest thing here is to use the model, if I may. If we look at this from the bluff side, this is the remains of the existing portions of the house. The existing house is a one-story cape gable roof. It has a wood deck in the back. The proposal is to remove that wood deck in the back. The basic idea was to use the existing house as a pedestal in which to perch the new segment of the home, which in their case was the master bedroom 2 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 43 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 4 suite, and then as a linear extension which contains the loft-like living space on top, which is living room, dining room, kitchen. And underneath mud room, guest rooms, bath room and the old area of the house, this back area, living area kind of studio for Adrienne, one of the remaining bedrooms, a guest room and then a renovation of the existing bathroom. That's all down below. The concept was because of the existing swimming pool, that while they used it in their front yard, once you were in the front yard, you really didn't appreciate the bluff nor the view, so the concept was to put this as a series of pavilions leaving this open space from the pool deck so that if you're at the pool, you're actually looking through this house and it separates Adrienne's studio from the guest quarters, gives it a little bit of privacy and intimacy, and yet the house is connected across the top with an enclosed breezeway area that takes them to their master bedroom suite. So it's actually not very box-like, it's not very bulky. You can see that it's a sensitive pavilion trying to leave in and take what's left of the existing home and makes it part of the composition. The idea of the slope roof here is we are still investigating the value of this, but we have intentions of putting solar panels on this roof, if financially the calculations of this size home makes it worthwhile, sometimes it's questionable in a weekend summer home because of the use and the diminished energy needs to begin with. But it is designed to be somewhat passive in the sense that there are openings from down below and windows up top to allow for a good draft through the house and to be as passive as possible. As a matter of fact, this area here, that's above the upper breezeway has operable south facing glass windows and the concept here is really that they open up when heated to evacuate the hot air and again create a draft through the house. So by opening up windows in various portions of the house, it actually acts like a chimney. So we're trying to be as passive about it as we can. But obviously with the rest of home, the orientation is to the water and solar panels is really not the big issue that we're dealing with here. Subsequent to developing the design with the 3 5 6 7 8 9 10 11 12 - 13 14 15 16 17 18 19 20 21 22 23 24 . 25 44 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 9 client, and just let me point this out, this little diagram that you have in your packets, just in a simple diagram clarifies the new construction area, the original house footprints, the portion of the house that we're cutting off and then the portion of the house that remains and part of the new composition. Additionally, so you have a sense of its impact relative to the neighbors, we went two homes to the east and two homes to the west and are showing examples of how the scale of the house is really completely appropriate to the homes that exist on either side. Many of these homes have been added to and renovated already. They all share almost a common dimension off the top of the bluff and I think you can see in the scale of things, that in no way are we really sticking out and I think again the breakup of the house in style and design makes it very compatible with the scale of the other houses. You've also visited the site and the site is very wooded. This is the house from the front superimposed into the existing site. You can see that in season, it is quite full of foliage. There's the existing home and the same basic setting. It's our intention other than the construction area and this has been a topic of discussion that our construction access road and the area that we're going to clear for the construction that we're doing is going to be as sensitive as it could be. Subsequent to completing the schematic design, with this model, in fact, with similar renderings and floor plans, let me just show you the lower level. This is the openness of the lower level, her studio, guest room and guest rooms and the mud room area on this level, the staircase going up. We came to the Building Department around March of 2006. My client retained Rob Hermann, EN-Consultants. We've worked with them on environmental expediting and procedures before, mostly in the other fork but they were great, they were informative. Rob and I had an informal discussion about the project and before he took it on the road to the Trustees and the DEC and the Health Department, his feeling was that we should go meet with the Town and get an early read on what we're doing. So we brought this model and the plans and renderings to the Town. We meet with Damon back in March of 2006, I believe. We 2 3 4 5 6 7 8 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 . 25 45 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 presented the ideas in the conference room there, showed him what we were proposing and at that meeting he made some recommendations. He said it looks fine. I think that you know you're within the spirit of the code, however, I think there's a few things you should do just to clarify what you are doing. Besides adding dimensions to our site plans to show clearly where the new constructions were relative to the bluff and dimensions, it roughly, this construction is approximately 30 feet, this construction 50 feet. The existing is very close. He recommended one where we were building a roof top terrace over the existing first floor, keep it at least one foot back so there's no question that any renovation, any construction, we're doing is at least one foot back. The other recommendation he made was that the proposed patio around the swimming pool be done out of a wood deck construction and not out of concrete and blue stone. So we made those corrections and it was at that time we gave the final plans to Rob to start the long road ahead with all the other approvals that we would need on the case. Just to finalize it and it's in your packet so it's clear about what's taking place upstairs. There was one question from the field that it -- was the house connected? Was it, in fact, different structures. In fact, you can see the common living area, the enclosed breezeway and then the master bedroom and then again the roof over the old structure that's now becoming a deck. So I think that briefly takes you through the process, procedure and the basis designed. Hopefully, it clarified some of the design aspects for you. One last thing I will mention as far as any questions about the materials. We've been very successful building on the waterfronts with mainstream technology. It's a nonadhered exterior surface material. It's what we call a breathable wall and in this case proposing to use this lunar panel. Some manufacturers make a similar panel of layers of wood and resin that's very durable. It withstands salt air and wind. It doesn't fade. A great stable material. Tends to have a long lifetime. That in combination with the appropriate glazing for the wind codes, sub controlled and in this case, metal panel. So it is a very highly articulate design but we feel that with the 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 46 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 foliage on either side and the way the composition is broken down and the use of a lot of the wood elements, it's sensitive as far as a modern house goes. BOARD MEMBER GOEHRINGER: Guess this is my application. I have to tell you that the many years that I've been on this Board and have had the honor of sitting at hearings, this whole aspect of having setbacks so close to the top of the bluff is something that I have great difficulty in understanding particularly with virtually almost brand new construction. This is virtually almost brand new. You know we're talking about even though we're talking about wrap around renovation about an existing house that's been there for 30 years, 35 years maybe, maybe even more. I just think that you can take a more favorable approach and move this entire construction back probably at least 20 feet to give us like a 38 foot setback, when I say us, I'm referring to the Town in question and I'm speaking for myself. MR. NAROFSKY: May I answer to that point? Right now we're bordering exactly what you're talking about. Our new construction, for the most part, is 50 feet and beyond. BOARD MEMBER GOEHRINGER: That's the opposite 4 5 6 7 8 9 10 11 12 . 13 14 15 side. 16 MR. NAROFSKY: All of this point is 50 feet and beyond. This point here is 30 feet (indicating) . BOARD MEMBER GOEHRINGER: I understand that. Having had relatives that have owned property on the cliff and at 77 feet they've had to move their house back 140 feet, okay. That's just an opinion. MR. PASCA: What I'd like to do, if we can continue that after, I'd like Rob to actually take the Board a little bit through the Trustee process. Every bluff is different. Every circumstance is different. I think he may have something to say that may, it may impact your opinion as to that because this is kind of a unique bluff in certain ways and the process didn't end where Stu ended his. BOARD MEMBER GOEHRINGER: I think it's a wonderful plan. I just think it can be altered. MR. PASCA: We can continue that. That's obviously an important question. 17 18 19 20 21 22 23 24 . 25 47 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 MR. HERRMANN: Good morning. Rob Hermann of EN-Consultants. I'll try to move through this quickly but I think it's important to pick up the process a bit where Stuart left off. I'm not sure if it will affect your feelings about the project one way or the other but I think it is important that we note it. I have worked with Stuart before and we both try to take a very careful and meticulous approach to significant projects like this where there's reconstruction and bringing a little something different to the Town. And I think sometimes, you know I'll admit I've been in situations with clients where we get so far down a certain road in the planning and then something just reaches out and bites us at the end of the project and everyone is saying well didn't you anticipate that and didn't you see that coming and blah blah blah. So when I got this plan from Stuart originally and we saw that I saw how Stuart had interpreted the code, and I don't want to try to rehash everything from your prior hearing, but obviously this is another out of town architect that came in and read this definition to construct no closer than the pre-existing non-conforming setback and work everything landward. And I said well, I said there have been occasions where we get surprised. I said I don't want to get surprised because, first of all, we want to try to do this application in a way that once we get through the environmental approvals if we can, we don't need to come to the Zoning Board. And if you do need to come to the Zoning Board, you're going to have to know what expectations to have. So I said why don't you come out from the city and I'll set up an appointment with the Building Department and we'll go find out exactly what we're going to need. It is a, it's not a real simple box plan. There's some complicated features to it. So Stuart drove out from New York. He brought all these plans. He brought this model. We went to the Building Department. We met with Damon. He's a very good building plans inspector. I've had very good success working with Damon. So we went back to him again and we sat down and said are we going to need to go to Zoning Board? If so, is there anything we can do that we don't have to go to the Zoning Board? What can we do? When Damon looked at the plan, as Stuart testified, he 3 4 5 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 48 1 ZONING BOARD OF APPEALS JUNE 28, 2007 e 2 6 said you need to create this plan in a way that you don't get any closer to the bluff than the existing structure and if you can maintain at least the first foot of that facade and work behind it, then I don't have to send you to the Zoning Board. At one point during that meeting he said let me just check this and he went into another office. I assumed at the time it was Mike Verity. He came back, we went back through the discussion -- this is March '06 -- and said okay, we're good to go. So we went back from April, May, June. Stuart went back to the clients. He changed the design exactly in accordance with the recommendations and information we obtained at the Building Department and proceeded. We had a plan changed. It was sent to the surveyor Joseph Indegno (phonetic). I assume the Board has the site plan. At the time that plan was dated July 31, 2006 showing the revised plans and then I proceeded onto my process because I had warned him you don't want to invest the time and energy in our process only to find out a year from now we have to go to the Zoning Board. So we thought we had accomplished that. So I then file an application with that plan to the Trustees, to the Health Department and obtained a non jurisdiction letter from the DEe because the project is, I should say is landward to the crest of the bluff who's elevation exceeds 10 feet above main sea level. So we obtained all of those approvals and I can speak quickly to the Trustees process in a second. But we were finished with that process by the end of December. Stuart then moved toward filing the building permit applications and was quite shocked as were our clients to find out that despite all the months and energy and time and money they had invested in this based on what we learned at the Building Department, that here was this letter of disapproval. It's my opinion that Damon still believes his interpretation is correct. Stuart has met out in the field, I think, correct me if I misspeak, but with Damon and Mike Verity since this time and it has been explained to us that whatever we were told then and whatever is going on internally with the Town now in terms of discussion of this section of the code which was made more than clear in the prior hearing, here's were we are. So just to speak to a couple 3 4 5 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 49 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 off issues and I think I would focus them on the LWRP review because I think the LWRP review that the Zoning Board received is similar to what the Trustees received and it focuses on policies 4 and 6. We did submit an LWRP application for this application. I think there's a couple of things that the Board should keep in mind. One of the issues pointed out with respect to policy 4 is where there's a suggestion by the LWRP that structures, new structures or existing structures, should be moved as far away as possible from the bluff to prevent their loss due to flooding or erosion. Policy 6 speaks to protection of title and freshwater wetlands. Up until late '05, the wetlands law in the Town was always written to have the maximum protection being more than 100 feet from wetlands. This house is more than 100 feet from wetlands. It's not more than 100 feet from the top of the bluff. The reason, as I understand it, and Kieran's heard me testify about this in front of the Trustees before, one of the reasons at the time the Board of Trustees when Al Krupsky (phonetic) was Chairman of that Board wanted the wetlands law changed to incorporate the word top of bluff into the wetlands code was because we had these parcels in Southold that were virgin parcels on the sound and if you came in as a homeowner, you could, number one, get a non jurisdiction letter from the DEC. Which means you can do anything you wanted at the top of the bluff without their involvement and as long as you weren't building within a coastal erosion area, you also didn't need any approval from the Town Trustees because in most cases you were more than 100 feet from wetlands. So what they wanted to make sure of was that if you came in with a new house, how could the Trustees, how come some environmental steward within the Town make sure that somebody didn't come in and clearcut the whole site, build a house at whatever location and then have all of the loss of vegetation cause sheet flow rundoff down the bluff and then causing the bottom of the natural bluff to collapse where the Trustees were in a position that then people would have to hire folks like us to come in and say well we've got this problem now, we need a bulkhead at the bottom of the bluff. We need to revegetate the bluff, etc. But that's not the 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 50 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 case here. This lot is preexisting. It's a developed lot. There's no new clearing proposed and the bottom of the bluff is already retained with a retaining wall. So there isn't that concern here which again was the genesis of the Trustees wanting to recapture in this case double their previous jurisdiction was to make sure those sorts of things didn't happen. And one of the reasons despite the planning board's staff comments, the Trustees were comfortable granting a wetlands permit to this is because those conditions were not the case here. So I think that's one important thing to note. The other, again, with respect to policy six is for those same reasons, there's nothing happening with this project that's going to negatively impact the waters of Long Island Sound. One of the reasons you have 100 crest of bluff setback is in case the wetlands are also closer and you don't want bad things to happen to the bluff. You don't want the bluff to be enuded as a result of new clearing and you don't want somebody to be compelled to come in and ask to stabilize the bluff as a result of their own development action. But again that's not happening here. This is a developed site, the lot is cleared and the bluff is in good shape and it's retained at its tow. So if your have a house that's sitting in the exact same location as this one, only it's bigger going back in this direction, I challenge you to identify one impact that it could have on the environment different from the existing house that's there as long as you speak to things like septic treatment, capturing runoff, having a proper drainage system, having elements to this plan that make sure that you don't have that sort of negative impact as inarguably, you would if this were a vacant lot that were completely wooded and the plan was to come and clearcut the lot and completely change the environmental dynamic of the property. And that's not the case here. The only other concern which maybe is a concern to the public but probably not as much to the private owner would be the loss of a dwelling. If you had a natural bluff that was eroding, and I've been in this situation with the Trustees and they've said well maybe your setback now is okay, but what's that setback going to look like in ten years, fifteen 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 51 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 years as this entire bluff continues to transgress landward? Then you'd have to come in and ask for a bulkhead which we might not want to give you. Again, in this case, the bulkhead is already there so that concern is not there for the client. The mitigation that was included in the plan environmentally, we do have a new sanitary system that's been given Health Department approval. We do have a drainage system designed to capture and recharge runoff. The Trustees did not impose a non turf buffer at the top of this bluff, but that is something that could be incorporated into the plan in order to eliminate some of that previously cleared area. Even though the clients, the owners enjoy that lawn area, obviously, if we're seeking a variance, however we got here, we need to seek the variance, might be some additional mitigation that could be included in the plan. As I said, all that information mayor may not affect how you personally feel, as Gerry said, about a general issue of setbacks with respect to a house at the top of the bluff. But I think it's important to distinguish some of these characteristics that I just mentioned and I think it is also important to keep in mind that these clients through Stuart and myself made a point of coming to the Town over a year ago to make sure that we weren't standing before you today. But here we are standing before you today. So we'd just like you to keep that in mind in terms of your deliberations. I thank you for the time. MR. PASCA: Before we leave that, there's one other item that Mark Perry mentioned in LWRP which is, he recommended that if there is to be an approval, a variance granted, that the dry well is located closer to the bluff, be located at least 50 feet from the bluff and we don't have a problem. MR. HERRMANN: And Tony, that hay bale line 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 too 22 MR. PASCA: Right, we received a comment from the County Coastal Erosion person. CHAIRMAN DINIZIO: What did he say? MR. PASCA: A comment on the original hay bale line that it would affect runoff. So again, we'll redesign the hay bale line to protect for that process. BOARD MEMBER GOEHRINGER: I reserve the right 23 24 . 25 52 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 to just come back and discuss anything else. This happens to be my application. I have the duteous task of writing the decision and that was just an opinion of mine. That was not an opinion of the board's. I will say this to you and all due respects to EN-Consultants, we have not had a significant hurricane out here. The condition of the bluff in Mattituck after significant hurricane, primarily in the latter '70s, early '80s, had basically taken those walls right out. I am never suggesting that that would happen. I can tell you, however, that just as if they were toothpicks and cliff score was beyond belief. I do want to apologize to these very, very nice applicants because I understand they are absolutely lovely people and they love being out here and we love having them here, but that's just my opinion. CHAIRMAN DINIZIO: Leslie? BOARD MEMBER WEISMAN: This is a question that will build upon the presentation thus far relative to environmental impact. So I'd like to ask Stuart to explain to the board the fact that this is not typical wood frame construction, it's steel frame construction. So the impact of heavy equipment in terms of land disturbance is different. Could you please address that in terms of heavy equipment line on that plan or exactly how construction will proceed relative to its affect on the bluff? MR. NAROFSKY: The simple stages are obvious. The first thing that's going to take place within demolition is removal of parts of the existing house is going to take place. There's an existing area through the driveway area, it's very easy access to the site through this corridor here for whatever the house is just a cape so it's going to be fairly light equipment to remove the roof of the cape and cut away the wood frame section that we'd like to slice off in order to open the view from the pool area. The next stage is going to be concrete foundation. This house is proposed to be on a slab, a fairly standard subgrade footings for frost and nothing further. So we're not digging down. We're not digging deep. The current house has a partial basement, partial crawl space. We are just going slab on grade, fairly standard footings, minimal disruption as far as digging 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 53 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 like you would in a basement where you need a wider, clear area. It's very easily excavated in this area. The next phase is the steel frame. You can look at this as a good/bad. The bad that clients and most of the homes that we build are steel frames these days. We do a lot of waterfront homes and we find that to mitigate in terms of hurricanes and wind and to meet the code, I found that wood structures were becoming high risk. In all the clipping and the steel and modern homes typically have more open space than a traditional home. We ultimately migrated over the years to doing all steel construction. The bad is the clients see their foundation sit there for months and say what's happening with our project. The good is that as opposed to a wood frame and lots of mess on the property, it's all being done in the factory somewhere. Ultimately, a house of this size can be constructed within five days. A small truck will come in here, park itself right around here and literally swing from a flatbed most of the steel into place and have this thing erected within five days. It'll be four building cables for stability during the rest of the construction. And that's it. That equipment after that it's hand laborers working with metal studs and roof materials. BOARD MEMBER WEISMAN: Could you also address the proposal for pinning new foundation in the existing, use the diagram to explain what is remaining and what you're doing with the rest of the foundation. Specifically, on sheet A3 of the foundation plan, there's a callout saying contractor to inspect conditions of the foundation. This is troublesome. We're just had a couple of very similar teardowns. MR. NAROFSKY: I will tell you, because of the nature of the structure, we have a structural engineer on the job. His name is Mark Hodge, Hodge Associates, a Manhattan firm. A very good structural engineering firm in the sense that they do a lot of residential work. Often structural engineers do commercial work and you start to get into residential design and they are not as sensitive as they could be to size and other considerations. One of the unique qualities -- so relative to your concern about the note on the architectural, there is and was filed a full set 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 54 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 of structural plans signed by a structural engineer which has the exact details and procedures as to what to do. But in a nutshell, it is our hope to retain the existing concrete rock foundation to do whatever remedial work is needed with waterproofing and stabilization and put one concrete block wall back along this diagonal where in place of the part that we sliced off. The section that's open here is deck construction. There is no heavy foundation work being built up against the old footprint of the house. It's just light deck style tiers within this case a wood deck, a very, very good wood to use on the water in this case. It lasts long. It doesn't splinter. Then you've got the slab of the wing here which is pretty far from the old house and again just 3 1/2 foot deep footings, slab on grade, very, very sensitive. Hopefully, that answered your question. CHAIRMAN DINIZIO: Okay, Leslie? Michael? BOARD MEMBER SIMON: Yes. I wonder if you can put the other board on, the one that we had before you put that one on. MR. NAROFSKY: The diagram? BOARD MEMBER SIMON: The diagrams for the variance, yes. I certainly have taken note of the care and thought going into this thing and the attempts 0 do as much as one can conceivably do within the constraints of the existing code and environmental constraints. I'm quite impressed with the presentations as a matter of fact. But just to follow up a little bit on Gerry's initial question that however good a job you can do in mitigating the problem of this property being so close to edge of the bluff, nonconforming and particularly in comparison, as I understand it, with the other houses along the bluff, it is by history, by it's own history, a lot closer and this is one of these things that sort of jumps out at people and then the concern is will that make any difference. You're doing your best to argue that it wont because of the type of construction and so on. The problem of there being a house with one angle too close to a bluff or too close to a bulkhead is not an unfamiliar one in this town and there are cases where people are preserving one little corner of a house and building a huge house landward of this. Now, this 3 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 55 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 is technically legal. It's like the question of how can you save a footprint so you can rebuild in the same nonconforming spot? And this pushes the envelope as far as is legally possible to do so. I think it is legally possible. I also think that this is something, and I think Krumsky had the right idea, that probably should change. I also believe it is not within the jurisdiction of this Board to try to legislate for a change which I think would be helpful for the Town. This is kind of more for the Board and the public perhaps then for the applicant. But I -- if I am not happy about how close that is there, I cannot think of -- I haven't yet been presented with any substantive argument that it still can't be. Not everything happens the way we would like it to happen. And if people are acting within their rights in exploiting the existing rules and exceptions and loopholes, if you will, well, there's nothing much we can do about it unless we're going to change the code. That wasn't really a question, just a comment. MR. NAROFSKY: But I would like to make a comment too. I'm foreign here so I'm not going to get into a debate. There are other conditions. First out of all, a new construction is in line appropriately with anything that we found to the adjacent -- we're either in line or back but I would like to answer that. There are more factors then just that code. We honestly did not come in and say there's a loophole and let's act upon it. They had an existing swimming pool. They could not reconstruct that swimming pool in it's current place. It is also nonconforming. It's functional, it's there, they spent money on it. So part of it is, right in the middle of the property is a swimming pool. The other aspect of it is, the years they've lived on the property and understanding their views and their exposures, they made it very clear as we walked their property what made sense to them as far as position. And as we walked their property, looking at the adjacent homes, what made sense in positioning. So the shape and orientation and location wasn't like let's grab the code and just work it. Obviously, I'm much further back then just the point of the existing house. The existing house is very close to the bluff and everything 3 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 56 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 originally we're trying to work further away from it and still retain the structure of the pool and be as close to it. You get the aesthetic ideas of opening up, you see the hole at the bottom so that one can view the water from the pool. But that's not what drove the configuration. You can see the pool drove the configuration here and in answer to to question of moving back, the fact is, and not that I'm offering anything, but the nature of this composition, this kind of design, if I had to tweak it, if I'm thirty-five feet back and you felt more comfortable with thirty-eight, could I tweak it and make that adjustment? Absolutely. It's not the symmetrical colonial that if you push on one side, the other side flips and we have all these issues. It is a very highly articulated composition and I think that there probably is a balance, a comfort level without the disturbing the pool giving them the vies and the sight lines they want that we could find a balance. CHAIRMAN DINIZIO: Ruth? BOARD MEMBER OLIVA: Kieran? ATTORNEY MEMBER CORCORAN: I don't have a vote but I would just say I don't necessarily agree that this case falls within a perceived loophole in the law. I think what we're referring to is the exemption from the hundred foot rule if you build landward of an existing structure. Despite what the Building Department might have told you originally and all apologies from the Town for that because clearly, they reversed their position and that's why you're here. When you got a Notice of Disapproval, the Building Department found that you didn't fall within that exemption or loophole and so you're here for a variance. Now, this Board can choose to do what it wishes in granting a variance. MR. PASCA: It's either or. Our application -- the first side of our application is for the reversal of the Building Department's interpretation. When we get to the variance, this Board disagrees with our interpretation and agrees with the Building Inspector's interpretation. So it's an either or. ATTORNEY MEMBER CORCORAN: I understand that. The last part of what I said was intended to get to. This Board, even if it determines that it does not qualify for an exemption and is not 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 57 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 building landward of an existing home, it can still grant a variance and it has discretion to do that I think that's what the architect was just getting at in terms of there may be room to balance any concerns the Board has and that's what the Board needs to do. I just wanted to make it clear that it's by no means clear to me that there's a loophole that this project can slide safely through. MR. PASCA: The only thing I'd add too is that we never perceived it as a loophole. We perceived it as the code and I think that the way they approached it by coming to the Town first kind of shows that they never really saw it as a loophole. They wanted to make sure they were looking at it the right way. There is some connotation when a couple of people use the word loophole like they were trying to slide through something and it really never was the case. BOARD MEMBER SIMON: I would like to withdraw the word loophole. We used a lot of words and that was not my favorite one. ATTORNEY MEMBER CORCORAN: And I don't want you to take me the wrong way. I don't mean to connote that you're trying to get away with anything. I was just trying to make sure that the Board knows what it's doing. MR. PASCA: To add one thing also, if we can get to the aspect of the variance side of it. If the Board has certain concerns, the Board does have power to impose reasonable conditions. So I think what Stuart said is there may be some room to have some flexibility on the design because it is a unique design and if there are concerns, we would like to address them. CHAIRMAN DINIZIO: Let Ruth finish up. BOARD MEMBER OLIVA: I go along with the original interpretation that the whole house would have to be there. Not just a portion or piece of the house that's just sticking out there. I think your presentations were excellent. I like to design of the house. I think it's unique. I'd love to see it when it's finished. But I do think it has to be pulled back. Mr. Hermann, you did say incorrectly that there was no disturbance of the bluff in front of their house but the bluff to the west is deteriorating and it does worry me because I know those bluffs. I know the whole bluff 3 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 58 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 because I've walked an awful lot of the shore line. They're deteriorating and you've got to be very careful. Gerry's right. You get a hurricane, goodbye. I can just tell you just an example of where Brecock Hall (phonetic) is. The original owner told me his bluff had not eroded in 30 years. We had one bad nor'easter and a third of the bluff was gone. So this is something that I'm thinking more of the welfare of your clients to get that house back as far as they reasonably can. Otherwise the design itself I think is interesting and very good. I like the house. CHAIRMAN DINIZIO: Okay. Leslie, you had something you wanted to add? BOARD MEMBER WEISMAN: Yes. This is a follow-up question to our counsel's statement that I probably need to address to Stuart, I think, or perhaps counsel. When is a house no longer a house? When you're talking about an existing dwelling, additions and alterations to an existing dwelling. You have a diagram that explains what you're going to retain and what you're going to remove how you're going to essentially add on to it and I think Gerry sites specific conceptual development of this. This house is not only sensitive but beyond articulate both in terms of materials and prevailing breezes. It's very skillfully done. CHAIRMAN DINIZIO: May I just add -- perhaps if we read that part of the code? Is that allowed? I think Kieran knows that part of the code. BOARD MEMBER WEISMAN: We could but let me just ask a question. I am going to go back to that because it's a learning curve for everybody because each application is specific to the site, to the conditions and so on. And I think you've all made very compelling arguments including your very lengthy legal brief on that particular part of the code which I'm sure we all read. I certainly did. So let's ask the question from start. Why not demo the whole thing if you're retaining just a small corner and creating an asymmetrical series of volumes that you can play with and shift back and forth, why not just start from scratch? Can you answer that for the Board? MR. NAROFSKY: It's a compelling question. We discussed it. Not having to deal with zoning or any of the legal issues here. What was driving 3 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 59 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 leaving that portion? No question 50% that was driving it was, as I understood it, coming in to reading the code and interpreting it. The other 50% was, it appears to be intact. That area in our new program with the guest room and studio for Adrienne and a bathroom area, the shower area on top of the wood frame floor didn't seem inappropriate. The plumbing is there. The waste lines are there. There's a brand new boiler in that section to retain and utilize for the heating in that particular area. And the way the design worked out, the way the master bedroom area right here sits back and over it, it didn't seem to be a conflict to be honest with you. So to have left that part of the footprint, it's minor mechanics. I know in context with a job like this you would clean it out and start from scratch but you know what, the use that we've determined that the best use for that particular area just seemed to be with keeping it, removing the gable roof and building a wood deck on top, not an extremely difficult thing. And the nature of the steel construction means that I'm dropping some tiers down and I'm literally floating over it. I'm not bearing on it, I'm floating over it. So it was kind of a 50/50 to be candid. CHAIRMAN DINIZIO: I was just wondering if we could have -- Kieran is going to read that part of the law because I heard some conflicting interpretations as far as building and existing structure that needs to be clarified here because we're talking apples and oranges, I believe. Kieran? ATTORNEY MEMBER CORCORAN: Sure. I'm going to paraphrase until we get to the specific part we're talking about. Essentially, you have to be setback 100 feet from the top of the bluff. That's 280-116A, plot adjacent to the Long Island Sound, building and structures need to be 100 feet from the top of the bluff. Page three, however, says that "buildings or structures which are proposed landward of existing principal dwellings shall be exempt from the requirement set forth above in subsections Al and 2." CHAIRMAN DINIZIO: Okay. BOARD MEMBER SIMON: The word is buildings, plural? BOARD MEMBER WEISMAN: Or structures. 3 4 5 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 60 1 ZONING BOARD OF APPEALS JUNE 28, 2007 . 3 BOARD MEMBER SIMON: Buildings or structures and therefore, it's still -- whether it is part of the same building? CHAIRMAN DINIZIO: I think if you look at the definition in our code of a building, I think you come to a different point. BOARD MEMBER WEISMAN: Maybe we can get Mike 2 4 5 to -- 6 CHAIRMAN DINIZIO: No, no. Michael doesn't need to be involved in this. He's here observing and I think we should leave it at that. BUILDING INSPECTOR VERITY: If anyone has a question -- CHAIRMAN DINIZIO: Michael, I'm not going to ask you a question. I don't want to get into this but if someone else would like to ask you a question and you feel comfortable coming up, come on up. Anybody would like to ask Michael a question? BOARD ASSISTANT KOWALSKI: Would you like the definition of building read? CHAIRMAN DINIZIO: Can you read the definition of building for us, please? ATTORNEY MEMBER CORCORAN: A building is a structure wholly or partially enclosed within exterior walls or within exterior and parting walls and a roof affording shelter to persons and or property. CHAIRMAN DINIZIO: That's all we need to 7 8 9 10 11 12 13 . 14 15 16 know. 18 MR. PASCA: I'm not sure there's any debate as to what we're proposing is a building. BOARD MEMBER SIMON: There's a question as to whether it's more than one building. CHAIRMAN DINIZIO: I'm questioning whether it's an addition to an existing building. MR. PASCA: What I'm arguing that what the code says is buildings or structures, whether it's one or two or more, that those are buildings and structures which are proposed landward of existing principal dwellings. Existing principal dwelling is located at a certain point. CHAIRMAN DINIZIO: Right, there, existing. It's existing. It doesn't mean you can tear it down and still call it existing. MR. PASCA: The code doesn't say you have to leave the existing one there. It says you -- CHAIRMAN DINIZIO: No, actually, that is what 17 19 20 21 22 23 24 25 . 61 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 9 drives the whole law, the fact that there is an existing structure on there. MR. PASCA: I agree. CHAIRMAN DINIZIO: We don't need to get into that. I think you have a really nice project here. It's my turn to speak too, by the way. I would like it if you could consider taking the existing part of the house and pushing it underneath this part that comes towards the pool as far as you possibly can get it away from the bluff. MR. NAROFSKY: Where are we talking? CHAIRMAN DINIZIO: Take this, straighten it out and push it back in to here. Can you do that? Would you have any objection to that and approximately how many feet would you gain from the away from the bluff? MR. NAROFSKY: We know from the site plan that the extreme point here is 51 feet back and this is approximately 31 feet. MR. NAROFSKY: That's. CHAIRMAN DINIZIO: But you're not going to get it all the way to 51 feet back. Will it be45? MR. NAROFSKY: What you're proposing in stage one is going back to your earlier question is now we're taking the existing down. We're reconstructing it in a different position. CHAIRMAN DINIZIO: Let me ask you this. The front windows that you have in that existing building, are they there right now? MR. NAROFSKY: No. CHAIRMAN DINIZIO: So you' going to take that wall down? MR. NAROFSKY: For the most. We're not hiding that. We're taking the existing sliding doors and windows down and putting new ones in. The only issue about doing that and I have not conferred with my clients but from a functional point of view, yes, I can do that. I can't speak to the dollars and cents at this time. The only area I can see them as clients, knowing at this point, I know them many years they're actually very close friends of my family, so I know them a long time, is that the roof terrace here that we're building on top of the first floor is obviously a beautiful first floor location. So part of the concept was getting them this space. I would propose to go a little bit further. I would propose to try and shift some of it in and 2 3 4 5 6 7 8 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 62 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 9 as well shift the new part back so that I can at least get a juxtaposition from the first to second floor and so that they can still have a terrace. What I hate to propose is that we square off the structure and have a projection -- have a common deck in which you have spaces below like they have now. They have a deck coming off the back of the house. One of the reasons -- even in new structures that we do from scratch, I try to avoid -- we do a lot of waterfront, is terraces that don't have things under them. I really try to make them and even though with much cost a specialized roofing system. This is planned for Kemper roofing system. A very expensive roofing system, 50 year guarantee, not a warranty, guarantee, it works. It doesn't leak. Doesn't cause problems. So we make an investment in putting a roof over usable interior areas without having any water issues. So I would say that, as I offered before, if there is a dimension that in this wing, that I can put this wing back and rotate it back to maybe, you mentioned the 38 foot point, rotate it back to that 38 foot point. That could move the existing footprint back another 8 feet as well. I don't think the first floor aspect of the existing footprint is, you know, that impacted. It's currently there, it's adjacent -- but I can see that that could be something that I can really -- CHAIRMAN DINIZIO: I'm not telling you how to design the house. I'm just saying what Ruth said, to get it back away from that bluff. That's a way you can gain space. MR. NAROFSKY: My proposal would be to take this wing, rotate it back in such a way as to get something along the lines of the dimension that Gerry was speaking of and then possibly move the existing deck back. CHAIRMAN DINIZIO: So, if we granted a variance, what would it be? What would the footage be approximately? Forty feet, forty-five feet? MR. PASCA: Could you, procedurally, leave the hearing open for 10 or 14 days so we have a chance to propose a condition that you can then impose? CHAIRMAN DINIZIO: We would like, if you could, give us another drawing with the setback. MR. PASCA: Rather than force you to say 10, 20, 30 feet. It's better to work from something 2 3 4 5 6 7 8 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 63 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 that -- BOARD ASSISTANT KOWALSKI: Remain part of the 3 file. 6 MR. PASCA: Right. So you now what you're approving. BOARD MEMBER SIMON: I have a specific question for you. If you had known that you were going to come before this Board anyway, would you have designed it exactly the way you did? MR. NAROFSKY: No. BOARD MEMBER SIMON: That's what I thought. That point sticking out -- you would have applied for a variance for house designed something like what it looks as though we're recommending in the first place. MR. NAROFSKY: The truth is, I still would have worked around the pool. But had I known I was coming here anyway BOARD MEMBER SIMON: You wouldn't have invested in keeping that little corner there? MR. NAROFSKY: No. BOARD MEMBER GOEHRINGER: One last question. Based upon the 51 feet that you have and of course we have an irregular bluff, based upon what the chairman has requested and based upon the construction that you're discussing, is there a possibility that anything within that 50 foot range could be breakaway. In other words, it could be sustained by the second story of this building? MR. NAROFSKY: Absolutely. There's no question that that lower level could be constructed with that. BOARD MEMBER GOEHRINGER: That would be the way to go. CHAIRMAN DINIZIO: Erosion of the bluff is not a concern right now but for future, we try MR. NAROFSKY: If we explore this structure, obviously its still a steel structure that's substantial relative to wind concerns. Even the glass we'll be moving. So yes, I would certainly think that once I rotate this or slide it back, the lower level moves back. BOARD MEMBER GOEHRINGER: It's very important that we do that during construction so that we understand the process that you are using. MR. NAROFSKY: At that point, I would turn to my structural engineer and as them to review that aspect of it with the criteria to follow in that 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 64 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 case. 6 CHAIRMAN DINIZIO: Anyone else have anything else to say? We're going to leave the hearing open until our next hearing. You requested that. MR. PASCA: I would prefer a partial -- CHAIRMAN DINIZIO: Let me see if there's anybody here speaking against it. Let's here whatever testimony there might be there and then we'll make our decision. Is anybody here that would like to speak for or against this application? Ms. Moore? MS. MOORE: Yes. We were faced, this night seems to be the Ides of March opinions that are here today months later. I went through a lot of research at the Town in the computer with respect to the local law, when it was adapted, the bluff, the setback to the bluff law back in 1993 and then the revision that was added later to allow for this, I think, this precise situation and other situations that you heard today, which is the construction of additions or alterations to existing homes that are in the nonconforming setback of that 100 foot. And I'd like to -- I'll send over, unless I can make a copy with the Town Clerk's permission, what I have. This had been submitted to the Building Department in an effort to avoid being here on another application we had, and I'll read to you that -- in the legislative process, when the Town Board added this extra exemption with respect to setbacks to the bluff, they send it, as you know, to the Planning Board, for their review and recommendation. In the review and recommendation that came back to the Town Board, the Board said that, and I'll read to you, it's not very long. It says, "the Board finds that the proposed legislation will allow existing waterfront homes located on Long Island Sound, Fishers Island Sound and Block Island and situated less than 100 feet from the top of the bluff or bank or from ordinary high water marks to be expanded without review by the Trustees or the Zoning Board of Appeals." So they brought that issue to the forefront. "This proposal also will permit the addition of buildings landward of the principal buildings located closer than 100 feet from the top of the bluff or bank or from the ordinary high water mark. The Planning Board feels that all such expansions or new constructions 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 65 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 9 should be the subject of review by either the Board of Trustees or the Zoning Board of Appeals." That was the resolved -- it said otherwise, we support this application. When the supervisor, it was Supervisor Harris at the time, took that in as a recommendation, they heard it, they took it in and they said, yeah, we want to allow this exemption for the preexisting, nonconforming structures because ideally in the '90s when the lots were being developed on the Sound that could meet the 100 foot setback and you see all the subdivisions that are approved around that time have in place 100 foot setbacks from the top of the bluff. At that point, they're creating laws that can conform to the new requirement that they've imposed. They recognized later because they put the law in the books and then everybody has to come before this Board for variances one after another. They said we didn't realize we were going to create so many nonconforming situations. Let's provide the exemption and that's what they did. And I think you really have to look back and I think that the code says we can, all the three applications or two applications, certainly Ragusa which you just heard and this one, would have otherwise not needed this variance. Now you know that the Trustees through their new legislation review these because it's 100 feet from the bluff. So it's taken a long time -- it was adopted in '93 and here we are in 2007. They now have in place the review for the environmental factors that were the concern at the time. But they also recognize that there are a lot of preexisting nonconforming lots that the lot itself isn't even 100 feet from the top of the bluff from the front to back. So we have to provide, or I think, that it is more so today than any other time to keep that exemption and to recognize that exemption. So when you're deliberating because I know that you're debating it among yourselves, I would ask you to go back to the legislative history. If you don't agree, the Town Board can correct it or modify the legislation. But I think that to modify it, they will hear from a lot of waterfront property owners that have existing homes that need, that have been build in the '70s or up through the time of '93 prior to '93 when the code went into effect. Which 2 3 4 5 6 7 8 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 66 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 6 it's time to renovate and it's time to make additions and so on. It may not be so easy to get the legislative change. Rather than have Zoning Board activism, go back to the Town Board. So, that's my pitch. Keep it in the legislative level. You have already a historic interpretation and an historic adoption of this law that -- here we are, the Building Department with your guidance has now made all of us come in for this setback. I will provide that to you if you want later. You can put it in your file and review it. But all the -- it's in the computer and it was all taken out. So I wish them luck. I think that they've spent an awful lot of money to get to this point and in all fairness to them, in a sense, I don't want to say the Town screwed up, but the Town did screw up. When people come here and I think Mike, he's here. He thought that Don Philer and I had tried to take advantage. That's the sense I got when we were here on Ragusa and we said no. We came and met just as they did in March and that was the direction we got. And it's the same direction that I've always gotten on applications. So even a local lawyer reading the same regulation, we understood and we always, as a safety net, come to the Building Department and say, I read it this way, do you agree? And when they say okay, then we make our clients spend an awful lot of money to get to this point. So it's very, very difficult I think at this point, it's wonderful that they are willing to do some modifications to make you happy, but in all fairness to them, that's a lot of endeavor to get to this point. Thank you. CHAIRMAN DINIZIO: Thank you. Anybody else? BUILDING INSPECTOR VERITY: Again, Mike Verity, Chief Building Inspector, Southold Town. Just a comment. I don't want to back and forth with Pat and everybody else and I don't oppose the project or any projects here because if I oppose construction, it's not good job security so I have to push construction along. Jim, do you have a picture of the house? CHAIRMAN DINIZIO: The old house? BUILDING INSPECTOR VERITY: Yes, of the old house? Can I look at that quickly? This is not a shot at anybody. We're describing this house as a cape. It's not a cape, it's a ranch. We had early application, it came into us a two-story building. 2 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 67 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 6 It's not a two-story building. You can understand where I'm going with that. That's how things are presented to us and, again, I'm not opposing any project. I even had a conversation with Pat in reference to a conversation that she had with a plans examiner and she said, "well, I came in anticipating a disapproval and when the person said something otherwise, I quickly put that to the side and said let's hear what you have to say" and now it's no longer a disapproval as she anticipated and I don't want to use the loophole, but it appears that they found a way that they can go around and not get to the ZBA. If I would have saw the model, and I have to apologize to the owners of the property in Mattituck, if I would have saw the model in 2006, they would have been in front of you in 2006. I did not see the model. I did not see any of the drawings. I didn't see any of that. When I did see it, I had to object to it and I had to send it to the Zoning Board of Appeals as per the code. It's an easy interpretation and it's an interpretation that hasn't changed. It's been the same since day one. I think we're getting back to holding a 2x4 or two 2x4's and now building from that point back and that was an ugly time back in the '80s because I was building in the '80s and I remember what happened at that time. We got away from that's which we should have truly moved away from that because that's not the intent of the code. I am not opposing the project. It's an excellent project. They got great design people on board and I think they should be able to move forward on that again with the Board's guidance. Thank you. CHAIRMAN DINIZIO: Thank you. Anybody else have anything to say about this application? Sir, what would be your pleasure? MR. PASCA: Our pleasure would be an approval today. That would be our pleasure. ATTORNEY MEMBER CORCORAN: Failing that? MR. PASCA: We still, our application is still for an interpretation principally but assuming we get to question two which is the variance question, then the architect -- I want Stu to just explain so that when we leave here we know that we're on the same page as to what he can try to do with the plans. So can you say what you think that you could accomplish in the next couple 2 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 68 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 9 of weeks? MR. NAROFSKY: Just so -- it's hard enough having two clients, let alone nine. If we can agree officially here as to what your concerns are and how I can mitigate those concerns. As I understand it, one, try to shift the westerly portion of our addition back from the bluff line, you mentioned 38 feet. I know I'm approximately 30 now. I don't have a problem moving back that 8. On the model, we're talking about this corner. So whatever I rotate or angle or whatever I do to get it to that point, again, all floating anyway, and then take along with it the similar relationship that it has now to the first floor roof terrace which will move that back approximately 8 feet and then proposed breakaway construction for that bottom section. BOARD MEMBER GOEHRINGER: Yes. MR. NAROFSKY: I have those parameters. I can submit to the Board within two weeks a revised site plan and floor plan. I will submit a letter from my structural engineer which will discuss breakaway construction and the technique we would be utilizing and -- BOARD MEMBER WEISMAN: And foundation. MR. NAROFSKY: Whatever the technique for doing that type of whole type construction that would be most likely the early stage and in written form and then just ask the Board to say given the -- my commitment to following this guideline then be left up to the Building Department just to make sure that final construction adhere to that. CHAIRMAN DINIZIO: So if you could commit to say 38 feet right now and you can give us the drawings and all the stuff to accompany that and we meet on the 12th, you give us that information before hand -- BOARD MEMBER SIMON: I have a question though. The number 38 was first introduced by Gerry and I don't know whether we have a consensus that that would be the number. CHAIRMAN DINIZIO: No, but I think it's as far as he's willing to go. MR. NAROFSKY: You're 100% right. Gerry mentioned 38. I don't know why he mentioned that dimension. BOARD MEMBER WEISMAN: He made it up. 2 3 4 5 6 7 8 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 69 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 9 BOARD MEMBER GOEHRINGER: No, I didn't. CHAIRMAN DINIZIO: There's a reason for it. BOARD MEMBER GOEHRINGER: I figured we needed to go back a minimum of 20 feet to make it a total of 38. I'd rather have it straight on at 50 but if you can create the breakaway which is what you need at the top of that bluff assuming that you end up with a slide on that bluff based upon a tremendous travesty that might occur in the future, then I would be happy with limiting it to that 38 feet and that's it. We're talking about that situation. CHAIRMAN DINIZIO: I'm not saying that 38 feet is going to fly or not. I'm giving you fair warning that I think it definitely has to be straightened out in some way. If 38 feet is the best you can do, I'm willing to -- BOARD MEMBER SIMON: What you're saying is at least 38 feet. CHAIRMAN DINIZIO: It's up to the Board. What I'm trying to do is get to the point where we can make a decision on the 12th. One way or the other. I don't care which way it is. BOARD MEMBER WEISMAN: It's not fair to pick a specific number and ask an architect to go to the trouble of making substantial revisions and then say that number is not okay. I think the intent is there is a suggested number of feet setback and that the intent is to get that as far away from the bluff as you feel without compromising, you can accomplish. There's a number suggested. At least that gives you some flexibility and gives this Board some interpretation. Because if you did 38 feet and we still had a problem with it, how fair is that? You know what I'm saying. The other thing is when you submit, since you will now be altering some the way in which the existing volume is used, we will need to see what additional demolition is going to take place. MR. NAROFSKY: That will be clear in the site 2 3 4 5 6 7 8 10 11 12 e 13 14 15 16 17 18 19 20 21 22 plan. 23 CHAIRMAN DINIZIO: I think we're going to have to keep this open trying to. MR. PASCA: Yeah, you're kind of forcing CHAIRMAN DINIZIO: I'm just trying to accommodate you, that's all. MR. PASCA: I recognize that, I appreciate 24 e 25 70 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 it. 9 CHAIRMAN DINIZIO: It's going to be another month. Linda would like to say something. BOARD ASSISTANT KOWALSKI: I just want to say procedurally, what we recommend you do is come in maybe with plan A, Band C, we've done that before to other applicants. If you find that the 38 feet or the 40 feet isn't working for you, when you want to come up with a little bit different design, you can do a rough diagram on that. Also, we need 7 sets of those the week before that meeting. It would be around the 26th of July that it would be due. The next meeting is August 2nd. CHAIRMAN DINIZIO: That's our next regularly scheduled meeting. We can put you on for that. Okay. Anybody else have anything to make comments on this particular application? Michael, you want to say one more thing? BUILDING INSPECTOR VERITY: Just one more thing about Leslie's comments. She said documentation on the demo work. Earlier, they mentioned the architect mentioned about the waterproofing the existing foundation. It would probably be good to get an idea of what they are going to do with that because that's going to be some sort of excavation. Personally, I would recommend hand excavation in that small portion. But it's good to know because that doesn't want to come back again and we have to now as we were discussing earlier in an earlier case. We don't want that to surface and have it be a problem. So I think everything should be brought to the surface right now so it's not a future discussion in this type of meeting. CHAIRMAN DINIZIO: So if we grant, we move the existing setback back -- BUILDING INSPECTOR VERITY: Then it's not an issue. If the existing was to stay and they were going to excavate, I heard and it seemed to go not over everybody's head. I'm not saying that in a rude manner but it seemed to pass by but it is a very important issue in reference to stabilization of the bluff and disturbance around the bluff. MR. NAROFSKY: Can I just answer to that technically? Behind the current home, there is a dock on many, many piers and the land for quite a bit of distance under that deck is quite disturbed right now. Once we remove that deck, the area that 3 4 5 6 7 8 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 71 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 we would be waterproofing would only improve the space the way it can -- I appreciate the technical idea but I think if you look under that deck now -- we're doing a good thing by removing that existing deck behind the house. CHAIRMAN DINIZIO: Anybody else would like to make a comment on this if not, I'd like to hear a motion that we leave this open until our regularly scheduled August meeting. (See minutes for resolution.) ********************************** 3 4 5 7 9 Hearing #6025 - Smith CHAIRMAN DINIZIO: Our next hearing is for Roger P. Smith and Constance A. Smith. It's a carryover from our last hearing. It's Gerry's. Gerry, I guess you don't have to read anything. BOARD MEMBER GOEHRINGER: That's good. MR. SMITH: Thank you very much. We're a holdover from your May 31st hearing in which there was a lot of discussion on the garage and barn that we presented. First, I just want to make sure that you get our certified mailing that we did. We redesigned the garage and barn based upon the hearing of the 31st and really some input from the Board at that time and presented those plans again to, I think, in your department for about a week and a half at least or two. We also resent those back to all of the surrounding neighbors as you asked us to. The design basically took into account some of the things that you asked us for. We removed the dormer completely from the application. We took the garage or barn and took it from and east/west orientation and turned it to a north/south orientation. I call that in line in the letter that I sent you. The exterior still keeps in the characterization of what we were designing at that the time and we're comfortable with it. We hope you are too. We, again, felt that it really had it's greatest affect on our adjacent neighbor to the west who are Ira and Kay-Kay Haskell. They provided a letter to us which I'll give you in a second, but for the record, it states that it's to the Zoning Board of Appeals and To Whom it May Concern, reference to our application. And Ira writes, "my wife and I have reviewed the revised plans for the above referenced proposed work at Roger and Connie's property and have no objection to the proposed 8 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 72 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 work. These plans dated June 20, 2007 indicate a new garage five feet east of our common property line with a ridge height of approximately 22' 7". We have no objections to the patio or pergola either. If there are any questions, please call their number." Again, this is a letter from them that they are not in opposition to what we are proposing. I guess just based upon what we have presented, we're holding our application five feet from the westerly property line and if you have any questions, we'd be happy to answer them. BOARD MEMBER GOEHRINGER: Mr. Smith, when I went over there and met with you and your wife, you mentioned that one of the main concerns Mr.and Mrs. Haskell had was the continuation of their hedge row there? MR. SMITH: Yes. BOARD MEMBER GOEHRINGER: And I discussed with you at the last meeting the ability to capture as much of the rain water off of that roof as possible. You being in the business that you're in, do you think you're able to do that through proper leaders and gutters? MR. SMITH: Sure. We're going to gutter that side of the house and be able to attach that to a pool whether to the north or south of the garage. Very simple. BOARD MEMBER GOEHRINGER: I also notice this plan takes it a little farther away from that beautiful tree that you have there. MR. SMITH: Yes, it does and, for the record, I probably should have mentioned that because I did put it in my application to you. This design did change it a little bit. We're not as rectangular. We're a T shape and that T kind of pulls away from the Walnut and it really does help preserve it. BOARD MEMBER GOEHRINGER: And based upon that discussion that we had at that last meeting, also you are still, I realize you're, and I use the word fixated and it's not a proper word. You're fixed at five feet but you are still going to allow the Board if we don't get those necessary votes to grant alternate relief if for some reason we can't hold it at five feet? I realize that that's a statement that you want to think about, but I'm not laughing at the statement or smiling at it in any way. It's something that is important 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 73 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 for you. MR. SMITH: I understand. I probably am we have been somewhat fixated on the five feet. There's really two reasons. One, the existing structure is one foot to four feet off the existing property line and we've gone through an exhaustive process to try to make the house really special and historical in its own context and I really think that putting the barn and garage in the right position in the same general position speaks to that history. The more it shifts east, the more it bolloxes up, kind of like that fixated word, I don't know how to spell it but I know what it means, the middle of the property. It kind of hugs in the center and really doesn't make the property as usable. So, yes, we are fixated on that. If my arm is twisted or I need to consider something different, I don't think that we would really want to be greater than probably six or seven feet because we've gone through taping and surveying and checking to see where that is to get a sense of where it sits and the more she shifts east, the more it affects the grade, moves from its present position and doesn't have the characterization of the original property. BOARD MEMBER GOEHRINGER: So you're talking in the seven range? MR. SMITH: Could I check that with my partners? We're okay with that if that had to be. BOARD ASSISTANT KOWALSKI: If the Board didn't agree on those numbers either and the Board denied, then you could always reapply later with another application. So, if you're limited the Board to the five to seven feet, that would be your only other option. MR. SMITH: I think that's a very fair presentation on our part to where we're trying to put it. I think we've come with quite an application to you. BOARD MEMBER GOEHRINGER: Based upon the fact that you capture most of that water coming off that roof so you don't flood your neighbors. It's a pretty substantial roof. MR. SMITH: We absolutely will. It's, I think, the way we've looked at this is the way it should be looked at in a historical context and I know that this Board has looked at other projects of similar size and shape and granted things of 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 74 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 similar size and shape at five feet. BOARD MEMBER GOEHRINGER: We just want you to be aware that those are split decisions or similar sizes. MR. SMITH: We understand that. One very comparable to it really kind of spoke to it. CHAIRMAN DINIZIO: Gerry, you're done? BOARD MEMBER GOEHRINGER: I'm done. CHAIRMAN DINIZIO: Leslie? BOARD MEMBER WEISMAN: It would appear you're reducing the height, obviously that one large portion is now sort of a -- I think you were originally 24 feet. You're now 22' 7". Code says 22 feet so you're 7 inches -- how high is that copula, do you know? MR. SMITH: No. I didn't put an exact measurement on that. I don't believe those are regulated. BOARD MEMBER WEISMAN: No. I'm just curious. Is there any increase or decrease in the square footage as originally proposed? MR. SMITH: No. It's the same square footage. BOARD MEMBER WEISMAN: That's all. CHAIRMAN DINIZIO: Mr. Simon? BOARD MEMBER SIMON: No questions. CHAIRMAN DINIZIO: Ruth? BOARD MEMBER OLIVA: Well, I know it's just five foot, I would prefer to be ten foot, frankly. You have so much room there. MR. SMITH: No, we don't. And I think that's the misnomer that you're seeing a wide piece of property. I'm going to take you back historically to this. BOARD MEMBER OLIVA: And I know the tree is there. MR. SMITH: The tree is there. Also, a piece of property was cut out from the front of this by the Zoning Board which narrows the entire throw of the property and really it only bellows out when we get to that back portion. I think this is truly what you're trying to accomplish when you put things back in the historical context. To just decide that it needs to move, it doesn't change the value to the westerly property line and the person most affected isn't affected. They find it to be more than acceptable to them as the permanent neighbor. Ten, again, starts to shift 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 75 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 into the tree and changes the alignment of the property of the house and starts to move that structure to the center of the property. I don't think that was the intent of the regulation as you saw it originally. BOARD MEMBER WEISMAN: Well, it's a very long elevation; 40 feet, 39.something. So, it's nice that you're neighbors are willing to accept point foot wall along their property line. You did obviously to reorient the whole -- MR. SMITH: We were 24 feet before. BOARD MEMBER WEISMAN: I understand. That's a very, very long wall. It certainly has less visual impact now that the short end is the front elevation facing the street. So there's a tradeoff. But it is -- I would go by consensus of the Board. It's a very large structure. It's as big as many people's houses. MR. SMITH: I understand. It's interesting, as I was looking at this, we're permitted a structure that's -- BOARD MEMBER WEISMAN: A percentage of your lot size. MR. SMITH: Which I think would be 25 foot by 75 foot plopped someplace in the middle of the property back at setbacks and 18 foot high and I didn't need to have a variance to put that there. I can't imagine that what we're presented isn't more special and better than just trying to throw a big rectangle with a flat roof in the middle of the yard. BOARD MEMBER GOEHRINGER: You did a very tasteful job. CHAIRMAN DINIZIO: Okay. Can I speak now? Is everybody -- BOARD MEMBER GOEHRINGER: Do we have to give you permission? CHAIRMAN DINIZIO: Well, I gotta ask because I bite my tongue on this application, quite honestly. The original law was written that you could have an accessory structure and it could be five feet away from the property line on this piece of property. However, it had to be 15 feet high. Michael, is that right? BUILDING INSPECTOR VERITY: Eighteen feet to the midline. CHAIRMAN DINIZIO: Eighteen feet, okay. Now you're asking us, after we changed the law that 3 4 5 6 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 . 25 76 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 said that on this piece of property you have to keep it twenty 20 feet from the property line, you want us to put this building that was supposed to be twenty feet, so we're talking about a 100% variance of the current law. Not only but where you could once have an eighteen foot high structure, now you want a 22.7 foot high structure. To my mind, that doesn't make any sense. If we're going to have a law and people come and our Town Board has voted on that law, I think we need to enforce it a little bit more than a 100% variance from that law three months after we put it in. Now, I was honest with you the last time and I'm being honest with you right now. I am not in any way going to consider five feet. I think that 100% setback variance after all the work that the Code Committee did and the Town Board voted on and all the publicity that it got, it flies in the face of good government. So if you can't go fifteen feet or perhaps move it to where the driveway comes to that little turnaround behind your house, which then you wouldn't need a variance, I'm willing to work with you. I'm only one vote, okay. But I've heard all the evidence. I believe we're at the end of this and I can pretty much say that I know how I'm going to vote on this application and for the reasons that I think we're usurping a law that we have on the books with this application. BOARD MEMBER GOEHRINGER: Can I ask one question before you speak of the Building Inspector? Mike, was it not true that the eighteen feet was not to the ridge prior to this? It was to the medium, so therefore, it was twenty-two, was it not? BUILDING INSPECTOR VERITY: That's correct. Actually, the old code would allow eighteen feet depending on -- BOARD MEMBER GOEHRINGER: It was twenty-two. So we're talking seven inches different in height that these applicants are before us for. The main issue here is the setback. CHAIRMAN DINIZIO: That would be an adds-on 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 roof. 24 BOARD MEMBER GOEHRINGER: No. BUILDING INSPECTOR VERITY: Do you have gable type roof? Gable type roof depending on the pitch of the roof could easily go above the twenty-two . 25 77 e 1 ZONING BOARD OF APPEALS JUNE 2S, 2007 2 feet. 3 BOARD cleared up. here. MEMBER GOEHRINGER: I just wanted that We're using you today because you're 4 BUILDING INSPECTOR VERITY: I'm glad I'm here though. CHAIRMAN DINIZIO: Quite honestly, Gerry, the problem with that is they would be turned down. They would be before us asking us for a variance. BOARD MEMBER GOEHRINGER: No they wouldn't. CHAIRMAN DINIZIO: Of course they would be. BOARD MEMBER GOEHRINGER: No they would not. They were allowed -- we granted twenty-two feet for -- CHAIRMAN DINIZIO: Okay. Anyway, I'm not honestly, I think it's an aberration that you would even consider five feet away from the property line -- BOARD MEMBER WEISMAN: The issue is primarily the side yard setback. It's the setback. The other things that are resolved adequately as far as I'm concerned. The dormers were eliminated. CHAIRMAN DINIZIO: It slopes away from that side, I agree. BOARD MEMBER GOEHRINGER: Let Mrs. Smith speak. MRS. SMITH: If I could just speak to the fact that when we did originally submit, we were within setback of the five feet. So the setback was where it is. So we were not trying to push it to where it shouldn't be. We were within a smaller percentage of where we should be. And that -- we submitted -- and that evening, things were changed. So we kind of fall into a no man's land as far as the setback goes and my tree is very important. And we don't have a lot of other trees there and as it is to change the plan the way we did, we're going back further. To move it anymore, we take down the few remaining trees that are there. We've worked really hard to do this. This plan to build is at greater cost to us than the original one was and we're trying very hard to stay within all of the code and guidelines that you've asked. For us, this is the best solution that we come. To move it any further, again, moves it so much further that for groceries back and forth, you know God willing, I'll be in this house when I'm SO and I really need to be able to -- it 5 6 7 S 9 10 11 12 e 13 14 15 16 17 lS 19 20 21 22 23 24 e 25 78 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 makes it accessible to us for its use as a garage and/or a barn. If it were strictly a barn, it could be moved further from the house and it wouldn't be as important. CHAIRMAN DINIZIO: That's talking to the fact that your driveway comes in and it curls around the back of your house. Why can't you put it at the end of that piece that curls around? MR. SMITH: Drops five feet from that side to the easterly property line. And that configuration of driveway is exactly the configuration of driveway that's been on that property probably 100 years because it never had any pavement. It probably had shells. And it was all born in the same directions. So we put it back in the same place. That's a turnaround so you don't back out onto Main Road. That's all that is. To drop a driveway there means I'm going to stick it four feet or four and a half feet out of the ground and fill it or I'm going to push it all the way to the east property line so I can get down into it. We're not arguing this to be difficult. I want you to understand that. We think there's a couple of things that make this work. One is, we heard you the last time we were here and I respectfully understand. It is a garage and it did get longer on the westerly property line but that's not by my choice. That's really by discussion of feedback. You entertained a month or two months prior to us, one in which you, I think, permitted it to be five feet off the property line, twenty-five feet high but no dormer on a subsequent piece of property that's west of here in a different Township that was even brought to my attention at this hearing, it is for someone to look at that and say it's not an identical situation, it discusses the cutting up of property that took place previously. It discusses the width of the property, the saving of trees. It looks as though I have the exact same application. All I did, is I wound up on the Main Road instead of 48. So I think we've made a really good application. To shift it ten, it's like -- you know there's an old prunes joke. If you remember the commercial, it used to be is three enough, is six too many. It's really a discussion that we're having of moving. If you look at the property, we're trying to put it back to what was there. If 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 79 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 that piece in the front was still part of it, maybe that would make a different sensation to the whole thing. I'm appealing to you that the more you move it east, you don't make it better to the property nor to the neighbor nor to the actual way the property settles itself out. It's going to look completely different than the picture that you have in front of you because you're just going to stick out of the ground four or five feet at that end. BOARD MEMBER WEISMAN: It would also be blocking your view from the house, the patio. You don't want to put it there but I understand your concern about walking from the garage. If you push it back onto your property a few more feet so it's past your tree a little bit farther, you can affectively move that side yard over without blocking your view. MR. SMITH: We did. We actually did move it 3 4 5 6 7 8 9 10 11 back. 12 BOARD MEMBER WEISMAN: It's a matter of tweaking. You're talking a couple of feet. You walk a few more feet, you move the side yard over a few more feet and you leave it where the grade is still flat. You're not making huge alterations. Just tweaking it. MR. SMITH: That's why I kind of bent to seven because I know what that property is going to do when I push it over to the east. If I push it the extra five feet. BOARD MEMBER GOEHRINGER: I didn't realize that until I came over to see you that Friday night on how much of that drop off really exists. So it's always good to see it at a different glance in a different venue and the different venue was the grass was a little lower and you could really notice the slope down and so on and so forth. BOARD MEMBER WEISMAN: It's a substantial grade change. BOARD ASSISTANT KOWALSKI: There was one other thing added to the plan I believe we talked about in the office was the Building Department said that you would be allowed to have a half bath you would like to have a half bath? MR. SMITH: If you're permitted to have it. Obviously, I'm not asking for relief from it. BOARD ASSISTANT KOWALSKI: It's added to the . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 so . 1 ZONING BOARD OF APPEALS JUNE 2S, 2007 2 plan though, right? MR. SMITH: I put it on the plan. If it's a problem, it's entirely up to you on that one. If it's not a variance. CHAIRMAN DINIZIO: I would just like to address what he said. Because it still speaks to our law which is a substantial variance from the new law and I understand that you came in in the middle of it. I, personally, looking at your application realizing that there's an existing structure there certainly works towards your benefit in that there's always something existing there, a barn or a building. It's close enough to that line. So I understand all of that but I still don't quite understand the amount of variance that we're granting you. There are other ways for you to get around that setback. Make it less. You could build a small villa. MR. SMITH: Smaller? That doesn't change the variance. CHAIRMAN DINIZIO: Sure it does. You can make it ten feet less and still not block your view and be ten feet further away from the property line. MR. SMITH: Okay. Last -- as you drive up driveway to get in -- CHAIRMAN DINIZIO: No, this is not the last. We need to have discussion so I want to know your reasons. I'm not solid against but what you've presented so far, quite honestly, doesn't tell me that you're willing to compromise for the good of the Town. A 100% variance you're asking us for. You're not willing to mitigate that in any way other than to take a dormer off, okay. So I'm not so concerned about the dormer. I'm not even really concerned about the height. But I am concerned about from twenty to five. That is something that I don't know in two months or three months from now, I get the exact same thing, am I just now going to make the decision based on basically what it looks like to me, you want to be able to walk to this place. But can you make the building smaller so that setback is less? BOARD ASSISTANT KOWALSKI: He means cut fifteen feet off the side of the building. CHAIRMAN DINIZIO: I'm not saying fifteen feet. I'm saying can you make the building smaller? MR. SMITH: No. And there's a lot of reasons 3 4 5 6 7 S 9 10 11 12 . 13 14 15 16 17 IS 19 20 21 22 23 24 . 25 81 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 and let me just go through those again and respectfully. The existing structure is one foot and four foot off the property line. Yes, we're requesting a variance but we're making an existing situation better. And the day that we got relief -- the day we got our notification, that morning, we were prepared to move ahead and I think it's extremely important. This is that timing issue. That evening the regulations changed and we changed our application. Now we've changed our application 100%, in our opinion, maybe not to that -- I've changed the design. I've said I'd like to work with you. I'd like to do this and that. When you drive up the driveway to get at the garage doors that we've drawn, the more you push that east, that grade drops off. So what I'm going to wind up doing at greater expense and greater discharacterization to the property is filling it or retaining wall it to get into a two-car garage. I don't think it's a lot to ask for an acre of property to have a two-car garage when it had a piece cut out of the front that prohibits the actual utilization of the front. That's what is part of the variance proceeding. What happened historically to the property and I think you also have to keep in mind, and I don't know who was the descending or the affirming votes on your previous application, but you looked at one of these and you granted it, taller, wider and five feet away from the property line and there isn't a building there. There is not a structure there. BOARD MEMBER WEISMAN: Two comments. One, I regret that another application was brought into this application. It is not appropriate for us to discuss the comparison. If it were so, I would argue, vehemently, that is not comparable. However, having said that, it's important to realize you're doing much more than a two-car garage. You're proposing a structure with additional rooms that are habitable spaces. You'll be in there working, your workshop, various other rooms, half bath. This structure is much more than a two-car garage. MR. SMITH: I never said it isn't. BOARD MEMBER WEISMAN: You just said we're building a two-car garage. For the record, I'd like to remind everyone that it is much more than a two-car garage in terms of the scope of this 3 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 82 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 project giving you additional usable space beyond where you're going to put your car. Considerable. MR. SMITH: I'd like to address the half bath. We were here at a presentation a month ago and had no intention of putting plumbing in but it's my understanding that it is not regulated. We're entitled to have it. If that's a problem, we don't have to have it. We said that once before. So if you're thinking that all of a sudden this structure, building, garage, barn, whatever it is is looking and feeling different, we tried to make it different to feel more comfortable for you. BOARD MEMBER WEISMAN: Sir, it's not the bathroom. The whole proposal as originally submitted is much more than a garage. That's all I'm saying. The changes you've made here are in response, a cooperative response, to some suggestions about the scale of the project, the dormers. Trying to make it more in compliance with what our current law is by removing the dormers and reducing the height somewhat. So I think primarily the issue, if it's legal for you to build a building of that size, if it's legal to have those kinds of uses within it, then it is. It's fundamentally to what extent can this variance be granted for the side yard setback basically relative to the side. And I would argue that although you, in some ways, are improving the setback in terms of -- the previous structure is tiny and it's a total demo. So to suggest that there is some sort of historic memory of what was really a little, very little shed building, this is a brand new, very large building. So yes, you are changing, you're increasing the setback but relative to a forty foot wall. So those are all things I think we'll have to deliberate. MR. SMITH: I don't think we should lose the property characterization. Buildings have characterization. So does property. And a lot of the property here has characterization. That's exactly what we're trying to play to. I'm not playing that the building is larger or smaller. We're playing to placement. I think that's extremely important. It's the historical placement that's just as important to the property as the building itself. BOARD MEMBER SIMON: The property has 3 4 5 6 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 83 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 historical character. That historical character doesn't improve the building that you're demolishing. MR. SMITH: That would be your opinion. BOARD MEMBER SIMON: That's part of the law. If you totally demolish a property and you apply for a building permit to build a new house, no one is going to pay any attention to the fact that, you know, there used to be a house here. Used to be is not a legal consideration as far as this Board is concerned. We'd be overturned if we took it seriously and so we challenge it. MS. MOORE: Patricia Moore. The Smiths -- I happened to be here last time and made a comment or two and they said well would you mind sticking around and helping us if we need help. And I said well no problem, here I am and they sent me the plans and the modifications. And Mr. Smith is very eloquent on his own right and can express himself very well and has explained to you the rationale or his reasonings for the proposed structure that he's asked for. He's addressed for the most part that the benefits sought by the applicants cannot be achieved by some method feasible for the applicant to pursue other than this area variance. I think that's he's explained to you that all the plans, everything has been done and the law changed that night. I think that is a very important factor because had he known that it was about to be filed, he would have just filed it a week before and would not have been here. BOARD ASSISTANT KOWALSKI: It was advertised a couple of weeks before. MS. MOORE: Timing is everything. I think it's important to, and Jim speaks to this, I think that the feeling that you're expressing is well you have a code, it's just been adopted so we should stick to it. But when the code was adopted and I know there was a lot of discussion and a lot of going back and forth over the years on these accessory structures. The idea is generally, how does it impact your neighbor? How does it change the character of the neighborhood because you do have a lot of garages out there that grow. They're on steroids. They are large and they are on small properties and they can be on quarter acre properties and it is really offensive. It is not a bad law but the Town Board when they adopt a 3 4 5 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 84 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 law, it says Zoning Board. There are circumstances. Look at the property. Look at the situation and that's what your role is. Is to look at the circumstances and the property before you. If all you're going to do is say to the people, you know what, make it conform. Then we're losing a very important part of your role here. When you drive by Main Road, all you see of this structure is quickly between the property lines, it's on an angle, and all you see is slightly, the garage. In fact, the garage, this structure you're going to see less because it's moved over even the five feet that is proposed. I think they are willing to say seven feet because the importance to them of its location and to keep the character of the existing the building, the renovation that they've done and the look of the property. Obviously, they can't put it twenty feet because they would lose very important shrubbery. The topography, I think it's been discussed today, you have elevation problems on the property and it just doesn't work. You are also -- MTA, the Long Island Railroad is behind here. This property is very narrow at the street level but normal width, 150 feet or so, 142 feet in width, and the placement of it is in character. It looks agricultural. He's designed it to be a barn and it looks like it's an historic original structure with farm fields behind it. That's the character of Main Road and I believe that's why you probably approved the one on 48 because you were looking at the character of the surrounding area and saying, this doesn't look like a garage, it looks like a barn and we want it to look agricultural. If you're going to build something like this, make it look agricultural. Ira Haskell has supported this application. He's the only one truly affected. They have large oversized barn structures on their property. This will really be in keeping in character with the structures that are on their property and it looks very similar. The whole character of this region of Main Road is one barn after another, one garage converted barn after another. Unfortunately, when we adopt legislation, we use a simple approach. The box approach. This is what we want you to conform to because we cant look at every circumstance. If this was, if you were building a barn for 4 5 6 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 . 25 85 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 agriculture, I think you're permitted to do that, right? Here you have an applicant that is trying to make a building look just like all the other agricultural buildings on this region of Main Road. I understand your point. I know you'd like to keep to the code, but again, the code was just adopted. Every time we adopt code, there are numerous variances that we didn't anticipate and in all fairness to the Smiths, we're talking about a change that occurred that really nobody knew if it was going to be adopted or not. So you really got caught up here and you should keep that in mind when you're considering this application. Ms. Weisman, I think that it's very important that precedence is in a sense the other exactly, the identical circumstance on 48, as you're being presented here, that persuaded you to grant the variance. I don't think you can exclude that from you thoughts because if it was okay up there given the circumstances of that property and do they match the circumstances of this property, is it comparable? BOARD MEMBER WEISMAN: No, they're not. Moreover, precedence in the same neighborhood is what we look at. When you characterize a neighborhood, as one of the balancing tests, you look at precedence and typology within an existing context. These are not the same neighborhoods. They are not the same hamlet. They are not the same uses. MS. MOORE: I would say to you that this area is even more compelling because there are barns BOARD MEMBER WEISMAN: We will examine the neighborhood, absolutely. MS. MOORE: Just about every property that is along this road has a barn structure. BOARD MEMBER WEISMAN: Absolutely, and I did not mean to suggest, unlike others on this Board who indicate at public hearing what their intent might be, I prefer to deliberate. I prefer to listen to everyone with an open mind and go back and reread to file. Sometimes go back and see the site again and listen to what my colleagues have to say and have conversation, dialogue. So I am not, certainly no way negatively or positively. I asked questions and stated some opinions. I'm going to reflect very carefully on what the applicants have done. It's very architecturally, 3 4 5 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 . 25 86 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 very nice design. MS. MOORE: It might be rather than. BOARD MEMBER WEISMAN: The law requires us to examine every application on it own merits and you know that. MS. MOORE: Thank you. That's good. BOARD MEMBER WEISMAN: Not to compare it to other cases but to examine each case on its own merits and that's exactly what I intend to do here. BOARD MEMBER GOEHRINGER: The only thing that these two parcels that were mentioned have in common is that they are described property. They are not subdivided property. MS. MOORE: Also the degree of the variance. The substantial nature of the variance. That's really the only two comparisons. BOARD ASSISTANT KOWALSKI: The lots are different. This is 150 wide. You said it was very narrow. MS. MOORE: The front is 90. BOARD ASSISTANT KOWALSKI: Where the garage is going, it's 150. MS. MOORE: No, I'm saying the street frontage, the character of the area, what you see from the street. BOARD ASSISTANT KOWALSKI: Except that the width that the garage is at 150. MS. MOORE: Okay. I'm not trying to debate it. Let me clarify. On the street level, you have only 90 feet. As you drive by, you're going to capture just a very small view of this garage, this barn. The one who is going to be most impacted is the Haskell property and they have many barns, many out buildings on their property. At least that's what I can tell from the street level. You know better. So it is in character and I would hope that you keep that in mind because the code is constantly adopting regulations that don't fit the circumstances of the individual properties and that's your role. And I'd keep that in mind. Also, he wishes to have five feet. He said he begrudgingly accepts seven feet. But if the Board comes up with another measurement and they say sorry, the only way we're going to accept this is by x feet. Rather than deny the request, I would suggest you grant it at whatever it is. He can decide at that point to build it or not to 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 87 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 6 build it. BOARD ASSISTANT KOWALSKI: We offered that. But he didn't want to do that. CHAIRMAN DINIZIO: No, we can do that. MR. SMITH: I had an opportunity to sit and listen. Let me think this out. If I stayed twenty feet and twenty-two feet, I don't need to come here? THE BOARD: Right. MR. SMITH: Which would put the garage behind the walnut, block up the entire yard and be unusable? So, I'm not going to do that even if you grant me twenty feet, if you grant me the seven inches, you're not doing me any favor or the property or the walnut tree because then it's got to go. Because I've got to get in the garage and it's the only way in. So I'm going to assume that seven inches isn't a big deal, the pergola is not a big deal but someplace between five and nineteen, life is getting better. And the reason I need to know that before I leave the room is if you grant me fifteen, it still has the same problem. There's a limit of how far -- I said seven because I'm afraid when you keep pushing it, I'm going to have a problem maintaining. BOARD MEMBER SIMON: We can't negotiate this today. MR. SMITH: I'm trying to help you consider that if you think twenty is going to work, it's not a helpful thing for the property at all. MS. MOORE: If we could read the bubble over your heads with the number BOARD MEMBER WEISMAN: We don't have a number. BOARD MEMBER SIMON: Each of us has a different head. CHAIRMAN DINIZIO: One person talk at a time. BOARD MEMBER GOEHRINGER: I would like to speak because it happens to still be my file. The ability to go in with an open mind as my colleague, Ms. Weisman has said, and the ability to negotiate a specific number is the most important thing that this Board has in the deliberation aspect and that's what we do. It is the most democratic process that exists anywhere. That is the thing that a person needs to do in dealing with any application, this one, in particular, and that's the reason why I'm happy to 2 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 88 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 go out -- MR. SMITH: We're listening to you. BOARD MEMBER GOEHRINGER: Thank you. CHAIRMAN DINIZIO: May I say something as Chairman? Quite honestly, I ask the questions because I think it would be unkind of me not to. I ask those questions and I tell you how I'm thinking because I want you to convince me otherwise. That doesn't mean that you haven't. But what it does mean is that, you know, when you went from three feet to five feet, you turned the building around, there's an existing building there. All those things need to be plead to us. We need to hear them in a manner in which -- you're the property owner. You've got to live with it. We don't have to, okay. If I didn't tell you that five feet is not going to happen as far as I'm concerned, how would you know enough? You would be able to listen to us on July 12th but not ever have any more say about it. I don't want you to think that I'm trying to stifle you. I'm asking the questions that have to be asked as far as I'm concerned. I'm not insulted by any of your answers and I hope you're not insulted by any of my questions because it is the applicant that I care about mostly. If I don't ask those questions and they come up in the hearing, in our deliberations, and you don't have an opportunity to question them, then I haven't been fair to you. So, good luck to you in our deliberations. If you don't have anything else that you'd like to add to this, we'll ask the audience if they would like to add something. Michael, did you have something that you wanted to say? BOARD MEMBER SIMON: Just to expand and agree with what Gerry was saying. I said we're not here to negotiate. If there is what Gerry called negotiation in the session is not really negotiation because the applicant is not involved. He can listen but he can't participate. But I agree with Jim. We're here to be doing our job, to hear you and your representative make the strongest possible case for your opinion. We don't strictly speaking have any business arguing with you except asking, we hope are provocative questions. But we're not arguing. This is your chance and you may persuade one of us of the Board that you're right and then we go into deliberation 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 89 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 and the one of us can persuade two others. That's how it may work. So it's a process which has several aspects and I want to continue doing both of them. MS. MOORE: One last point, it was occurring to me as I was looking at this drawing, I think at the last hearing, he mentioned the use of it, that he has various vehicles and has antiques and so on. You could accomplish that by multiple buildings but it pollutes a property. When one of you suggested, you can't you shrink it? Well, to shrink it means that he's got to think about other buildings, other structures to accomplish the same task. This, he's come up with a design that takes care of all is needs and looks in character with the barn and agricultural look of the property. Yes, it doesn't look just like a normal garage but it shouldn't. It's on the Main Road. It's a scenic byway. Every structure should look like a beautiful old bar but to do so means every structure that wants to look like a beautiful old barn has to come to you. Because we've legislated the character right out of the code. Last time I felt very strongly hearing it and said my God, here we are. We can't do what all the policies and all the regulations seem to be forcing us to do. But that's not your problem. That's a legislative function. I think that they've presented you a very beautiful structure that has no impact on -- a neighbor has expressed absolute support for. That's really what you should be looking at. Not agonizing over how much of a variance are we exceeding but how does this -- this exceeding a limitation affected the neighbor. I know you guys are always looking at that. In this instance, that's not the case. You don't have that situation. It's been a long day and I'll shut up. CHAIRMAN DINIZIO: Thank you, Pat. anybody else have anything else to say matter? Anybody for or against in the I'll entertain a motion that we close hearing. (See minutes for resolution.) ************************************** Does on this audience? this 4 5 6 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 Hearing # 6058 - O'Reilly. CHAIRMAN DINIZIO: Ruth, we're going to start without you, all right? 90 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 The next hearing is for Hugh and Anne O'Reilly. It's application 6058 and that's yours Leslie. BOARD MEMBER WEISMAN: Good afternoon. I'm just going to read this Legal Notice into the record. "Request for Variance under Section 280-124 (100-244), based on the Building Inspector's June 4, 2007 Notice of Disapproval concerning an as-built demolition of an existing dwelling, with new construction at less than the code-required 40 feet on this 37,375 square foot lot. The new construction activities commenced under Building Permit #32434-Z, at 25 Lighthouse Road (at intersection with North Road), Southold." As I understand it, I presume you represent -- would you jus state your name for the record. MR. CAMMERATA: My name is James Cammerata. I'm acting as the agent on behalf of the O'Reillys. I designed the house with the intention that we would save existing one-story and two-story section of the house. When we started construction and we lifted the house up to repair the existing floor, we found that the house was built on boulders. The house is probably 150-200 years old. And it was a boulder foundation with floor of brick. In my absence, the O'Reillys hired a contractor to come and to repair the existing perimeter of the foundation maintaining the crawl space and actually, all they did was put a new foundation under the existing. There was no excavation for a basement. It remained a crawl space and we went to lower the house back down onto the new foundation and because the existing home was built literally at grade level, the runoff from the property had rotted out the sill plate and the existing home was built as a post and beam. So we didn't have wall studs every sixteen inches. We had like four by tens on the corner with intermediate posts. Again, in my absence, the homeowner, who did most of the work, took it upon himself to replace the damaged wood and as he took a piece off, more termite damage, water rot was found until it got to the point where he just -- if a wall was twenty-five feet long, he replaced exactly what was there. Again, I wasn't consulted and then the house was basically brought up to the current building code 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 91 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 with regard to strapping and the required angle bolts. Then he called me and said he received a stop notice and that he needed as-built drawings. So I went to the house. What the O'Reillys basically did was to remove what was there and put back exactly what was there in the same location. We submitted the as-built drawings to the Town as required detailing the work that was done. We were informed that a variance was required. I went and I meet with Damon and Mike Verity and I explained to them what happened and they made a field inspection to ensure that what was on the drawing is exactly what was in the field. It wasn't their intention to present one project to the Building Department and then build something else. They are not from the area so they're not really familiar with what the amount of latitude they have regarding the work they can do. So they took it upon themselves to lift the house up a couple of feet because of the runoff and they didn't want to have the same problem again. So they basically removed and replaced. One could argue it's a restoration and one could argue it's a brand new construction. But at what point do we say that a restoration isn't a reconstruction. If you look at the inspection reports, you can see that they called for the proper inspections at different levels of construction. So they basically tried to comply. What this basically has done to them is it forced them -- they are in a position now, they cannot keep the house because of the overrun on the repairs and now it's for sale. Unless they are allowed to resume the work, every month they pay the mortgage, they risk going into default on the mortgage because of the delay in the construction. So basically we're asking not for anything other then what was on the original plans. We're asking for the approval to continue the work. We also found out that now it's considered new construction. We submitted the drawings for the new septic system and now we're waiting for the application to go in for the Health Department and we have everything in line. But like I said, the longer they're delayed, this is a financial burden on them that they didn't expect to pour a new foundation for the whole house and basically replace the walls. That's all I have to say regarding that. Thank you. 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 92 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 BOARD MEMBER WEISMAN: So they hired you to renovate? You're not the builder, you're the designer? MR. CAMMERATA: Right. I designed the home for them. BOARD MEMBER WEISMAN: So you were designing a renovation? MR. CAMMERATA: That's correct. BOARD MEMBER WEISMAN: And you're local? MR. CAMMERATA: I'm from Hampton Bays. It's basically my first project in Southold. BOARD MEMBER WEISMAN: But they were doing the construction themselves or they had subs working with them or they were doing the hands on work? MR. CAMMERATA: The homeowner is a carpenter and he started to do the work himself. He actually jacked the house up by himself with a car jack. I have the picture here. He made a sandwich of 2x12's holding the house together and he lifted it up. The original permit allowed for new roof on the existing two-story and the existing one-story. So he already had a permit for that. So he took the existing roof rafters off on the one and two-story and then he did all the demolition inside and he basically lifted the four outside walls and that's when it BOARD MEMBER SIMON: Did he have a permit for the original demolition? MR. CAMMERATA: I would think the original building permit allowed for that because it was very explicit on the drawing what would be removed and repaired. BOARD MEMBER WEISMAN: Well, here we go again. This is -- you're here now -- at what point did you get the stop work order? MR. CAMMERATA: When they were ready for sheet rock. The house was already sided, the windows, the roofing. BOARD MEMBER WEISMAN: It's sheet rocked now. MR. CAMMERATA: No, it's not. They stopped when they were told. The mason who did the foundation had submitted the photographs of the foundation repaired to the Building Department and they exist in the file at the Annex. If you look at the existing report, the two different -- on 12/6, whoever inspected it said the first floor foundation is okay and they need a foundation 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 93 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 location survey and revised plans for all changes. That really wasn't brought to my attention until three weeks ago, maybe a month ago. Then on the bottom in additional comments, it says 12/19/06, foundation location survey not required. So there's basically a conflicting information on here. The O'Reillys didn't call me until they received a stop work order, we don't understand why. BOARD MEMBER WEISMAN: So they were proceeding getting inspections all along and essentially, rather than a renovation, it wound up a demolition and new construction. I mean what part, if any, of the original bearing walls remain? MR. CAMMERATA: What part, if any? In the existing one-story, there were -- all four walls of the foundation were saved but the contractor built on top of it. If you go inside the home, you will see, not many, but some of the existing 4xlO posts that compromise -- BOARD MEMBER WEISMAN: Corner posts? MR. CAMMERATA: Well, it's not necessarily the corner. He may have saved an intermediate horizontal beam and not a vertical and I really cant tell you what exactly, what was saved and what wasn't but what I can do is say that what was there was replaced or repaired, however you want to look at it. BOARD MEMBER WEISMAN: Well, I think the way to look at it is that it's new construction that is identical in spacial configuration and exterior to what you would have renovated had they not found so many structural problems with rot and so on; is that a correct characterization? MR. CAMMERATA: Yes. They basically would have preferred not to have to put a new foundation there and the fact that it's a corner lot and it has two front yards really and the piece is trapezoidal in shape, it really limits them if they said we're going to knock the whole house down and put exactly what we did -- they really couldn't place that house on the lot the way it is if it was torn down and relocated because there's forty and forty and then the back was, I believe, fifty and then they gave them a fifteen foot side yard on the west side of the property. There would be no rear yard if it was moved within the 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 e 25 94 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 required setbacks. BOARD MEMBER WEISMAN: At the moment, assuming this -- examining this as a tear down and new construction, you need a front yard set back variance of seventeen feet three inches which would be on North Road. MR. CAMMERATA: That's what they have. BOARD MEMBER WEISMAN: You have two front yards. Yes, that's what's there now. That's what they rebuilt. They rebuilt in kind and it's the architectural side yard, all though it is technically a front yard because of the street, and you have no variance required for the frontage along Lighthouse Road. MR. CAMMERATA: That's correct. BOARD MEMBER WEISMAN: I just want to make sure that I've characterized this -- in other words, it went beyond the scope of the building permit as was originally granted which was a renovation; is that right? MR. CAMMERATA: That's correct but it didn't go beyond the scope of the original building permit. BOARD MEMBER WEISMAN: The building envelope, the type of house? MR. CAMMERATA: That's correct. BOARD MEMBER WEISMAN: Okay. I understand that. So they rebuilt the house that was there with new materials in the same place? MR. CAMMERATA: One could argue that and one, again, could argue that it was a repair of an existing. BOARD MEMBER SIMON: Maybe I don't have a complete set of papers here. First of all, the record, the property record I have only goes up to 1985. Does anyone have a more recent one? When did the O'Reillys acquire the house? MR. CAMMERATA: In the summer of 2006. BOARD MEMBER SIMON: Have they ever lived in it? They've never lived in it. MR. CAMMERATA: No. The house was not livable, habitable. BOARD MEMBER SIMON: It was empty. BOARD MEMBER WEISMAN: How old is the house? What year did you say the house was approximately? MR. CAMMERATA: They purchased the home in the summer of 2006. BOARD MEMBER WEISMAN: No, how old is the 3 4 5 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 95 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 house, the original house? MR. CAMMERATA: I would say about 150 years 3 old. 6 BOARD MEMBER SIMON: And they purchased an empty house and he proceeded to renovate himself. I haven't seen the building for the original renovation so we can only take it on speculation and report. They bought this house and got a permit to do something and it turned out it didn't work. So do we even know whether it was going to be a renovation or whether it was going to be a virtual replacement? MR. CAMMERATA: On the original drawings that I provided, it was very clear that certain pieces of the structure were going to be removed and replaced. We couldn't specify the exact amount until the plaster walls were taken down and the flooring and carpeting and sub floor were ripped up. BOARD MEMBER SIMON: Do we have this building permit when you applied? You applied for the building permit? MR. CAMMERATA: Right. I did the expediting for them and then they basically decided that they would oversee the construction. So I basically was not involved where they called and said we ripped the first floor out. There's boulders for a foundation and there's four courses of brick on top of it. I wasn't made aware that they went beyond the scope -- BOARD MEMBER SIMON: I don't think I've seen the original building permit application. I don't know if we have it or not. BOARD ASSISTANT KOWALSKI: It's possible maybe he can make a set of the whole file that you have with the Building Department and provide the Board with it? BOARD MEMBER SIMON: Because we don't know what you first saw when you first came in there. BOARD ASSISTANT KOWALSKI: He only gave copies of the initial page but there's nothing much -- MR. CAMMERATA: I believe I gave seven reduced copies of the whole job. BOARD ASSISTANT KOWALSKI: It was of the first page and whatever, the inspection record. MR. CAMMERATA: I gave this. Does everybody have this ten page set of drawings? 4 5 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 96 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 BOARD ASSISTANT KOWALSKI: Is that the same set that you gave to Building Department with the first permit, with the original permit? MR. CAMMERATA: This is actually the as-built condition. BOARD ASSISTANT KOWALSKI: He's talking about the original permit. BOARD MEMBER SIMON: I'm talking about the application. These are plans. We have these, the drawings, the designer drawings. They seem fine. But what we don't have is the paperwork in English about what was applied for and the usual set of questions and answers that we see. BOARD MEMBER GOEHRINGER: I suspect that was the original from the O'Reillys? MR. CAMMERATA: Right. I have a copy of that. Would you like to see it? BOARD MEMBER SIMON: That's the permit itself. That we have. We don't have the application for the building permit. MR. CAMMERATA: Oh, you want a copy of the application? BOARD MEMBER SIMON: Can I just see this? This is dated October 18, 2006, additions and alterations. Is that to existing single family dwelling accessory garage. CHAIRMAN DINIZIO: Can I interject here for just a second? I understand what you'd like to see, Michael, but the Building Inspector made a decision based on the record. BOARD MEMBER SIMON: Which we haven't seen. CHAIRMAN DINIZIO: Right. Unless we're looking to make it so that the Building Inspector did something improper, I think that we ought to address the application as has been applied to for us and trust in the hardship that this gentleman is presenting in that he presented to the Town, the Building Inspector, one thing and got a permit and relied on that to the point where there were other things that we came up which we dealt with three other times today. Now, in my mind that what the Building Inspector did -- looked at to grant this gentlemen the original building permit to my mind is irrelevant to the fact that these people have a, are claiming a hardship based on a further decision that the Building Inspector made. Which is deny them. BOARD MEMBER SIMON: My other question is, 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 e 25 97 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 though it's not what the Building Department did but the condition of the house and the circumstances that then led up to this series of catastrophes essentially that that put you in the situation that you're in now. When the Building Department gives a permit, they don't look at the house, do they? CHAIRMAN DINIZIO: No. BOARD MEMBER SIMON: Did anyone see it? You didn't see it until much later on. MR. CAMMERATA: That's correct but what I do have, and I believe it's in your file, is copies of the existing home that we've jacked up. CHAIRMAN DINIZIO: Which is well after you got the building permit. BOARD MEMBER SIMON: It was well after you got the building permit. MR. CAMMERATA: Right but it's also my understanding that there is some leeway that the contractors have regarding how they repair the home. Now what the pictures show is that there was a good faith effort to save -- somebody wouldn't go through the trouble to jack up a home and then put a new foundation and then rip down what was existing after. Especially, we can understand the Town's concern if this was done and the house was sided and sheathed and all the windows and the mahogany deck and then we called for an inspection. That's not really the case. The case was there was a foundation. There was a call for an inspection on a foundation, a framing, the sheathing, the strapping. Even to why were they allowed to insulate? BOARD MEMBER SIMON: That's an issue. I'm on the same page as you on this. I'm not suggesting anything about intention. I agree with you completely. They wouldn't have done what they did if they were going to play bait and switch or something like that. I agree with you. Just the question of how did it happen that this thing went along this way and nobody who was able to or willing to look at the condition and to have anticipated the kind of problem and go to the Town and say look, we're going to have a lot of problems with this house and we need some kind of paperwork before we build it or before we rebuild it. MR. CAMMERATA: Well, as I said, I was hired 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 98 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 just to provide the set of drawings. I wasn't hired to oversee the construction. If I was there, I believe that there are certain requirements, 50% of the structure or 75% or 25%, whatever the number in the code, that before you proceed, you really should have an inspector come. We appreciate the fact that Mr. Alice and Mr. Verity took the time to come into the field and inspect to ensure that we did not present one set of plans to the Town and then we build something else. We could understand the Town's concern if we said we're building a house with three bedrooms and then we gave you one set of plan and then when they inspected it, there were six bedrooms. We could understand the Town's concern if we say we're going to build something 40x30 and then it turns out that we snuck another twenty feet in there hoping you wouldn't catch that. That's not what we did. BOARD MEMBER SIMON: I understand that and we're really -- this really isn't our business. In fact, what we're going to do is try to do the best we can to decide whether the variance we're asked to provide would have been one we would have given in the first place had everything gone through. It's just you come and you see a house that's already finished and there's a seventeen foot setback that should be forty, how did it get this far is the question that anybody would ask. I realize that you probably had no part in this chain of command thing because you came in later on. MR. CAMMERATA: The O'Reillys contention is that the house was always at seventeen feet and the house existed before the road existed. Their other contention is is that the runoff from the property is really responsible for the damage done to the foundation and the sill due to the fact that the house was built at grade. Now, they're not opposed to filing for the proper paperwork. They feel that the inspectors who came when they saw the house jacked up and the new foundation, that they should have been informed of this in December of 2006 and not be allowed to come and frame and sheath and side and put down a mahogany deck porch. They want to know why they were allowed to complete 75% of the home before the stop order. 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 99 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 BOARD MEMBER WEISMAN: That's actually the question I was going to ask. MR. CAMMERATA: They have no problem complying with the building codes, the local. They filed for the permit. They called for the inspections. Really their opinion is that the building inspector should have been consistent in his assessment of whether it was new construction or it was renovation. That's the only point. They are not interested in arguing with the Town. They don't want to -- they're in a place where if they can't continue the work, they're probably going to go in default on the mortgage and then the house is going to be taken from them. BOARD MEMBER SIMON: I understand and I found your presentation to be very, very helpful. Do you think it would be fair to say that you're here to ask us to bailout the building department? MR. CAMMERATA: I'm not looking to assess who's fault. I'm not looking to pit the Zoning Board against the Building Inspectors and who's fault it is. I'm interested in getting the O'Reillys sheet rock on the wall. CHAIRMAN DINIZIO: Let's not go there. We don't need to go there. MR. CAMMERATA: I didn't bring that up. Mr. Simon did. CHAIRMAN DINIZIO: No, I know. Michael, do you have anything else relevant to this application? BOARD MEMBER SIMON: No. CHAIRMAN DINIZIO: Ruth? BOARD MEMBER OLIVA: I was there and I feel sorry for you. You just got started and you got stopped a little after the fact. I don't have a problem. You were always 17.3. It's a beautiful house. Live and be well. MR. CAMMERATA: Thank you. CHAIRMAN DINIZIO: I know that neighborhood quite well and quite honestly that house has always been a part of that street. MR. CAMMERATA: Maybe you can consider that. CHAIRMAN DINIZIO: That's why I made the comment. Do I have any more comments on this for or against? Michael, get up at your own peril. BUILDING INSPECTOR VERITY: Just quickly on the project. Just to answer some questions in the future if it ever comes up. Again, Michael Verity, 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 100 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 Chief Building Inspector. The reason why, you want to know how it went so far along. The inspector went out. He reviewed the foundation. Requested the amended plans and right now it's not policy but it may be policy, we try not to stop people at that time. We hope that they bring them in a timely fashion. As you know, he just found out a few weeks ago that he needed the amended plans. If we had the amended plans at the time it was requested, quite some time ago, the Building Department could have said, hold on, stop. But it wasn't at that point yet. They put the new foundation under an existing building regardless of what the setbacks, seventeen feet, two feet, three feet. We would allow that. That's allowed. Crawl space in place and kind. Basement now, different story. You can't do that. You're increasing it whether you're going up or down. You're increasing it. In place and kind, we don't have a problem with that. They went to set it back down, we weren't aware of that. It kind of fell apart. They went around doing their work. They got to the framing inspection now. There's a big delay in time from a foundation to framing a house. It could be six months, it could be three months, it could be a year. So we're not there, so there's a big time lapse. Now that we go back, there's a question. Where are the revised plans? Is it new construction, old construction, in place and kind? At that point in time, the determination was made. So it's not like we had continuous inspections weekly and finally caught them a month later or six months later and we were there week after week after week. That wasn't the case. We were there at the foundation where it was just going to be a foundation repair. Set down the existing building, not a problem. But then when we went back, the framing was done, it's basically a new construction and that's where the problem lies right now. It was tastefully done. Not opposing the project at all. If I can say I'm in favor of it, I am. This is totally not an abuse of the process, it really wasn't. I would say the roof pitch is -- everything is almost identical to the original house. I don't think they were trying to gain anything by doing this. It was just lack of communication, I would have to say. I'll definitely, as head of the Building Department 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 101 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 take some responsibility for that. I think it was lack of communication on both sides. But when we request something, there's a reason why we request it so we can make a determination at that time. But we don't have the ability to stay on top of the file like that. Once we request that, we are relying on the applicant or the builder, general contractor, whomever to get that information back to us so we don't have to chase a file all day long or whatever. BOARD MEMBER SIMON: I appreciate you're answer, I really do. I wasn't suggesting it was an abuse of the system. A problem of gaps in the process. BUILDING INSPECTOR VERITY: I understand 3 4 5 7 8 9 that. 10 18 BOARD MEMBER SIMON: The problem is the process -- I don't believe the process was abused. I'm just frustrated about the inadequacy of the preordained process. BUILDING INSPECTOR VERITY: Out of all of the as-builts situations that you've heard in the last few months, this is probably the -- BOARD MEMBER GOEHRINGER: Closest not to be stopped. BUILDING INSPECTOR VERITY: Exactly. I hate to say it's like a coin toss but it's like a coin toss. You hate to do it but you kind of have to. It's not like you said, he didn't come in with a bulldozer and say take it right down. They tried to do the right thing and follow the right steps and it just didn't play out that way. BOARD MEMBER SIMON: I agree with Leslie and others that we cannot state our opinions here but I can make a prediction on what I've heard and I don't know what's going to happen until we have our hearing. I predict I will probably agree with you as to the accessibility of this as-built regardless of it or in spite of or because of its history. BOARD MEMBER WEISMAN: It's an architectural side yard even though it's a front yard in terms of the actual original siting of this very old house. It's a very quite street and if it was a side yard, you wouldn't need a variance. I think it's clear what the process was and why it happened. It's what happens when you get into the field and you go beyond the scope of drawings. 11 12 . 13 14 15 16 17 19 20 21 22 23 24 . 25 102 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 Drawings are theories and then they have to be built. I don't really have a problem. BUILDING INSPECTOR VERITY: Not to repeat what he said but, again, he didn't come in and knock down -- BOARD MEMBER WEISMAN: It's clear that this guy was trying very hard to comply with everything. BUILDING INSPECTOR VERITY: He was trying to do the right thing. He was going piece by piece hoping he could reconstruct and unfortunately it turned into pretty much a total rebuild that now does need a variance. No fault of anyone. CHAIRMAN DINIZIO: Okay. We are looking at a variance here, right? Not just over turning a stop work order? BUILDING INSPECTOR VERITY: Yes. Just a request of a variance and with the variance we can allow them to continue. CHAIRMAN DINIZIO: Okay. So it's not like today we can vote and say rescind the stop work order and they can go to work? We need to write a decision based on the variance. BOARD MEMBER WEISMAN: We have to write it up. I'll write it up. CHAIRMAN DINIZIO: So anybody else wish to speak about this application, for or against? I guess we're done up here on the Board, right? So I'll entertain a motion to close this hearing until July 12th. (See minutes for resolution.) **************************************** 4 5 6 7 8 9 10 11 12 e 13 14 15 16 17 18 Hearing #6046 - Oak. CHAIRMAN DINIZIO: Our next hearing is for Jeffrey and Carol Oak. BOARD MEMBER WEISMAN: That's mine. CHAIRMAN DINIZIO: Leslie, if you want to read that. BOARD MEMBER WEISMAN: I'm just for the record going to read the notice of this. "Request for Variance Under Section 280-124, based on the Building Inspector's April 25, 2007 Notice of Disapproval, amended May 7, 2007 concerning proposed additions and alterations to teh existing dwelling at less than 35 feet from the front lot line, at 375 Grove Drive, Reydon Shore Lots 20 & 21 (combined as one lot), Southold." 19 20 21 22 23 24 . 25 103 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 3 Looks like you want addition, like 60 square foot. to put on a very small feet, like two and a half 2 9 MR. UELLENDAHL: My name is Frank Uel1endahl. I'm representing the Oak family. Yes, it's 60 square feet, it's basically two and a half feet that we would like to extend the sunroom into the front yard. We, of course, would have to reframe the roof but if you look at this proposed and the original elevation, it will look very similar. The windows make get somewhat larger but the benefit that the family will have is that they can use this room as a dining room. Right now it's shy of 9 feet or 8 foot 6 in width. With a fireplace in the middle of it, it's really not very useful. They would like to renovate the kitchen this fall and that is why we're here today to ask for a variance to increase the sunroom. The sunroom will have a french door on the south side and we also would like to replace the wooden deck on top .of the existing patio and extend it to the sunroom. So that's basically the second issue which will also affect the front yard. BOARD MEMBER WEISMAN: So we're talking about reducing the front yard setback from the existing at 22.5 feet to 20 feet? MR. UELLENDAHL: Yes, actually it's right now, the existing is 25.4 and the proposed will be 22.9. CHAIRMAN DINIZIO: That's what the Notice of Disapproval says. Could you speak up a little sir, maybe put that microphone. MR. UELLENDAHL: Sure. BOARD MEMBER WEISMAN: Well, I must say that the other houses in the neighborhood are sort of similar in that they're all sited to the street which curves anyway. The character of the neighborhood has substantial questions including the one right next door which the so-called entry is relative to the street orientation to the side elevation. That's fairly typical in the area. You'd be approaching just a couple of feet into that so-called front yard which is really an architectural side yard. Your plans are, as always, very clear. Color diagrams make it very simple to understand. Everybody knows what's there and what's being added. I don't have any further questions or problems. 4 5 6 7 8 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 104 . 1 ZONING BOARD OF APPEALS JUNE 28,2007 2 6 MR. UELLENDAHL: Thank you. CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: I have no questions. CHAIRMAN DINIZIO: Ruth? BOARD MEMBER OLIVA: No, I don't have any questions either. CHAIRMAN DINIZIO: Gerry? BOARD MEMBER GOEHRINGER: No questions. CHAIRMAN DINIZIO: I have none either. I'll ask you, sir, do you have anything else that you'd like to add to this application? MR. UELLENDAHL: No that would be it. CHAIRMAN DINIZIO: Is there anybody here wish to speak for or against this application? Hearing none, I'll entertain a motion to close this hearing to July 12th. (See minutes for resolution). ****************************************** 3 4 5 7 8 9 10 11 MS. MOORE: Excuse me. I didn't realize there was going to be a whole contingency of people out in the hallway, his clients. We're asking that our application be held in abeyance. I'm sorry, Iavarone, because my clients are now reconsidering whether they are going to even do any alterations. BOARD MEMBER WEISMAN: We're not even up to 12 . 13 14 you. 15 MS. MOORE: No, I know. CHAIRMAN DINIZIO: Hold on. MS. MOORE: If I could just -- because we're going to ask for an adjournment because we may not need variances if we demolish the house and rebuild with proper setbacks. CHAIRMAN DINIZIO: Can you wait five minutes on that? MS. MOORE: Us? BOARD ASSISTANT KOWALSKI: We had promised Mr. Ham a certain time. He has to leave. MS. MOORE: Oh. I'm so sorry. ************************************* 16 17 18 19 20 21 22 Hearing #6042 - Lyon at FI CHAIRMAN DINIZIO: Okay, so it's Frank R. Lyon and Natalie Du Pont Lyon. It's yours again, Leslie. BOARD MEMBER WEISMAN: It's mine. Let me just read the notice for the record. "Request for Variance under Sections 280-14 and 280-122, based on ZBA Interpretation #5039 (Walz Application), and based on the Building 23 24 . 25 105 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 Inspector's April 24, 2007 Notice of Disapproval concerning a proposed additions and alterations to a (nonconforming) third-story bedroom in an existing single-family dwelling, which will constitute an increase in the degree of non-conformance (third floor/third story), at 8 Shingle Hill Drive, Fishers Island." So I see that you're proposing really a dormer bedroom addition? MR. HAM: Yes, just let me give my appearance. Stephen Ham, 38 Nugent Street, Southampton. I was also asked to bring covenants and restrictions. These are, I have, they're common to all of these mansion house sites and they really are not relevant but I can leave some with Linda. BOARD ASSISTANT KOWALSKI: Thank you very 4 5 6 7 8 9 10 much. 11 BOARD MEMBER WEISMAN: Mr. Ham, before you proceed, may I just make sure that I understand this correctly that you're proposing no increase to the height of the existing dwelling and no reduction of setbacks. It's about 157 square foot dormer addition. MR. HAM: The addition, the floor addition is 35 square feet, yes. From 122 to 157. The cubic foot increases by 173 cubic feet. That's correct. The existing ridge of the highest point is 30 feet 6 inches. These figures are in the memorandum. The highest point this new dormer will be is 27 feet, 6 inches. It will be within the existing footprint. BOARD MEMBER WEISMAN: Okay. BOARD MEMBER GOEHRINGER: Why are you here 12 . 13 14 15 16 17 18 19 then? 20 MR. HAM: Walz. BOARD MEMBER GOEHRINGER: Walz doesn't address the third story. MR. HAM: Well, a third story technically couldn't be built today. CHAIRMAN DINIZIO: It's an increase in the degree of nonconformity. MR. HAM: That's the reasoning of the Building Department. BOARD MEMBER GOEHRINGER: So the story exists. You're just adding to it? BOARD MEMBER WEISMAN: Right. Couple of square feet, that's all. 21 22 23 24 . 25 106 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 BOARD MEMBER OLIVA: And the tower is even taller. CHAIRMAN DINIZIO: Anybody else have any questions? BOARD MEMBER SIMON: Just a question. The definition of a story is having 50% or more of habitable space of area that has the proper height compared with the lower floor. Is that the reason why it's coming in as a third-story house? MR. HAM: This is partial -- I couldn't give you the precise square footage. I don't know. Part of it is living and part is storage. I guess the Building Inspector determined it -- BOARD MEMBER SIMON: It would be one and a half stories if it were less than 50% but it is more than 50% living space. MR. HAM: I believe so, yes, because there's a bathroom. There is some storage as well. BOARD MEMBER GOEHRINGER: But it was habitable before? MR. HAM: Yes, oh yes. The bedroom has existed as part of that structure probably for 100 years. BOARD MEMBER WEISMAN: They're adding this. BOARD MEMBER GOEHRINGER: I understand that. The question is, the whole issue is that in that situation, this is a year-round house or summer house? MR. HAM: I believe it's a year-round house but its not used year round. I asked the architect that question and he didn't know. He remembers it being winterized at some point so it's possible. I can determine that but he didn't get back to me on it. I did ask that question of him. Some of these, I know that some of these cottages are and some are not winterized. BOARD MEMBER GOEHRINGER: I mean this gives you the appearance of being a year-round house. MR. HAM: Yes, absolutely. BOARD MEMBER GOEHRINGER: Some of them are up on piling. Some of them have no heating systems at all. MR. HAM: Right. Its use is seasonal. CHAIRMAN DINIZIO: Ruth, do you have anything to say? BOARD MEMBER OLIVA: No. CHAIRMAN DINIZIO: Anybody else have any questions? Mr. Ham do you have anything else to 3 4 5 6 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 107 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 add to this? MR. HAM: Just request to grant a variance. CHAIRMAN DINIZIO: All right. Hearing done. I guess nobody in the audience has anything to say about this Fisher's Island application? Hearing done, I'll entertain a motion that we close this hearing. (See minutes for resolution.) *************************************** 4 5 6 9 Hearing #6047 - Iavarone BOARD ASSISTANT KOWALSKI: I just want to mention to the court reporter that we're out of order on the schedule. We're moving up to Iavarone. MS. MOORE: Iavarone is scheduled for 1:30, it's appeal number 6047. CHAIRMAN DINIZIO: Are we opening this hearing? MS. MOORE: Open it but request an adjournment on the open hearing because I don't know when after we've redesigned everything whether I even need a variance. CHAIRMAN DINIZIO: Are we going to be hearing testimony? MS. MOORE: Not today. CHAIRMAN DINIZIO: Not from anybody? MS. MOORE: No because this plan actually was originally -- alterations to existing residence. Our plan is to demolish the residence and build in accordance with the code. CHAIRMAN DINIZIO: So, let's open it -- BOARD ASSISTANT KOWALSKI: There might be somebody in the audience though. CHAIRMAN DINIZIO: That's what I mean. BOARD MEMBER SIMON: Is anyone here to speak? MS. MOORE: Well, I have Mr. Bressler here just to say, yes, he wants us to adjourn. MR. BRESSLER: Eric Bressler, Wickham, Bressler, Gordan & Geasa, Main Road, Mattituck, New York. And I am representing William and Diana Douglas and also present, please identify yourself. AUDIENCE MEMBER: Joanne Finelli. CHAIRMAN DINIZIO: We should open the hearing. MS. MOORE: You did. CHAIRMAN DINIZIO: We need to read the legal notice and then let's close it, okay. So it's 7 8 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 108 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 open. Ruth you have the pleasure of reading this one. BOARD MEMBER OLIVA: Thank you. "Request for Variances under Sections 280-l22A, 280-124, 280-116, 280-15, based on the Building Inspector's September 7, 2007 Notice of Disapproval, amended May 1, 2007, concerning proposed additions and alterations to a nonconforming dwelling and to construct a new accessory garage. The new additions to the dwelling will create a new nonconformity or be an increase in the degree of nonconformity when located less than 15 feet on a single side yard and less than 75 feet to the bulkhead. A new accessory building (garage) is proposed to be located less than 15 feet from the side line. Location of Property: 450 Wood Lane (Richmond Creek), Peconic." CHAIRMAN DINIZIO: Do you have any questions, Ruth, that you'd like to ask? BOARD MEMBER OLIVA: Not at this time, no. CHAIRMAN DINIZIO: Not at this time. So as long as the Board doesn't have anything to ask, we'll entertain your motion whatever you would like to do. MS. MOORE: A request to adjourn. BOARD ASSISTANT KOWALKSI: Without a date, I would recommend because we don't have the new plans. MS. MOORE: I would say push it past September. Well, my client tells me he's going to have a plan by August. BOARD ASSISTANT KOWALSKI: I'd like to adjourn it without a date and when you submit the new plans -- MS. MOORE: Fine, okay. You're right. Absolutely. That's what we have to do. We hope there will be no variances. CHAIRMAN DINIZIO: I'm a little concerned about this because we have two other applicants sitting here before you folks and now we're going to hear testimony. I'm going to tell you, I am never going to do this again. MS. MOORE: Well, I don't think you should be asking for testimony. I think it should be adjourned. CHAIRMAN DINIZIO: Well, I have a lady raising her hand now and I fell obligated to let 3 4 5 6 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 109 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 her speak and we certainly should in all fairness. BOARD MEMBER GOEHRINGER: But Mr. Bressler represents them. MR. BRESSLER: I represent the Douglas'. As far as the other neighbors go, I've not been formally retained by them. It was my understanding on behalf of my clients that I would be seeking an adjournment since I was retained yesterday and have not had an opportunity to review the file. I think in light of what Ms. Moore has said about her clients present intention, that is it not necessary to take testimony. However, if other neighbors are here and they wish to voice an opinion, I would certainly not object to that. That's the American way. BOARD ASSISTANT KOWALSKI: We don't have testimony from the applicant as to what they're planning to do. AUDIENCE MEMBER: I just wanted to ask a question. I really didn't want to -- CHAIRMAN DINIZIO: Come on up, ma'am. Just get to the microphone and state your name, please. MS. WEIR: Linda Weir (phonetic). CHAIRMAN DINIZIO: Address? MS. WEIR: 2223 Indian Neck Lane. BOARD MEMBER GOEHRINGER: Okay, go ahead. MS. WEIR: I just need to know how we can guarantee that 100 year oaks are not taken down because four have already been taken down. It concerns me. We built our house. I know how strict everything was in 1991. I don't know the changes that have been lately. But I think they were within the 75 feet. I haven't been able to go over and measure so I don't know. But I'm afraid that they're going to go in and take all these oaks down. I'm also afraid about runoff because we have a lot of runoff into Richmond Creek. Those are my two concerns. I mean I don't want a McMansion either. CHAIRMAN DINIZIO: We can only address the part that requires a variance. Evidently, these people are going to submit to us a new plan so we couldn't make a comment on any of that until we see this new plan. Beyond that, the next time you get a notice or the next time you know, come, testify, give us all the information that you would like to give us. As you see, we let it all come out here. 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 110 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 MS. WEIR: But do I go to the Town of Trustees now when they take down another tree? CHAIRMAN DINIZIO: No, ma'am. You come right here. You come right here first. Express your opinion here. This is the part of the Town that represents the application right now. Beyond that, at this point in time, we have nothing to consider because they told us they're going to give us a different plan. There's no sense in talking about oak trees if we somehow that we find out that they're not even going to take an oak tree down. MS. MOORE: We're not going to come in for a variance. MS. WEIR: They've taken down four. CHAIRMAN DINIZIO: Okay. Thank you very much. Is there anybody else that would wish to speak about this. I know you came, you read the public notice. You're welcome to come and speak. If not, okay I hear none, I'm going to adjourn the hearing. BOARD ASSISTANT KOWALSKI: It would be adjourned without a date. CHAIRMAN DINIZIO: Adjourn it without a date pending new application. MS. MOORE: If we submit an amended application, I will then notice all the neighbors. CHAIRMAN DINIZIO: Or you would have to reapply. BOARD ASSISTANT KOWALSKI: Or you would confirm that you are withdrawing your application, one or the other. MS. MOORE: Well, I'm not going to notify the neighbors I've withdrawn the application. I'd notify you, of course. MR. BRESSLER: Ms. Moore was kind enough to indicate she'd give me notice of that as well so I know what to do and plan my schedule. CHAIRMAN DINIZIO: Why do I suspect that the moment they hired him, you changed your mind? MS. MOORE: I'm sorry, Mr. Bressler, I don't wish to burst your bubble but actually I sent them off to look at the foundation very carefully to make sure that we weren't going to need structural changes to the foundation. Once we got talking, I said to them you know, why don't you really reconsider and see if you can make this conform. And we met yesterday before I knew that there was anybody in opposition to this. So they are well 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 111 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 meaning. They are trying to do things right. CHAIRMAN DINIZIO: We need a motion. (See minutes for resolution.) ************************************* 3 4 Hearing #6041 - Reeve CHAIRMAN DINIZIO: Next hearing is Valerie and Foster Reeve. That's Michael's. BOARD MEMBER SIMON: "Request for a Variance under Section 280-105, based on the Building Inspector's October 6, 2006 Notice of Disapproval concerning the height of a proposed fence exceeding the code limitation of four feet when located in the front yard, at 76375 Main Road (a/k/a Front Street), Greenport." The issue before us is the application for a variance on a fence of six feet rather than the code required four feet. MS. REEVE: Exactly. You need my name. Valerie Reeve, the address they have me at is 76375 Main Road. I guess you need this affidavit of signed posting too. Who do I give that to? BOARD ASSISTANT KOWALSKI: Thank you very 5 6 7 8 9 10 11 12 . 13 much. 14 MS. REEVE: We moved into this house about 13 years ago and there was an existing fence there. A chain link fence. Over the years, we've kept that fence there. We always thought it would be nice to replace it. Since then, I guess about three years ago, they raised the level of the street as well as the sidewalk, redid the sidewalk in the front of our house which made our four foot fence now seem like it's about a three foot fence. In addition to that, we did some landscaping. We have some large trees there but there are open areas in the front. Most of our property is front yard and not back yard. I have two young kids. I would like to have six foot fence purely for privacy. Originally, we thought about doing a wall, a solid wall so it would be privacy as well as noise control. But I was getting estimates for like $35,000 to put a wall up there so we just gave that up. Then I also found out that it might be, it might hurt the trees -- they're very old, large trees and we didn't want to do anything that would damage the trees. Anyway, it's just basically for the privacy and somewhat noise control but it's mostly privacy. I did send out all the notices to all the people in the 15 16 17 18 19 20 21 22 23 24 . 25 112 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 neighborhood. I did get a few calls. Everyone said great idea, fine. BOARD MEMBER SIMON: You say noise control but you don't, you're not overly optimistic as to how affective that would be; is that correct? MS. REEVE: It'll be slightly better but not really that much. We are doing a tongue and groove wooden fence so it'll be a solid fence as opposed to something with holes in it. But mostly my concern is the privacy because you probably know the school is there, people walk back and forth from 7-11 in front of our house all the time. Greenport has just gotten much busier over the years. There's more and more foot traffic there. I have two kids that are 9 and 12 and they're out playing in the yard all the time. It just makes me very nervous. BOARD MEMBER SIMON: Will the fence be on the inside or the outside of the greenery you have there? MS. REEVE: I wanted to put the fence exactly where the fence is now. Right now, if you were inside our property, there's probably 25 feet of ivy growing on the ground that has overgrown the fence. An idea was to take down the existing fence, pull back the ivy, replace it over the new fence. So we looked into vinyl fences and wood and they said with the vinyl fence, the ivy wouldn't stick to it and wouldn't grow to it. So the idea is that it will look the same basically as it does now only taller and covered with ivy. BOARD MEMBER SIMON: So would you say the fence is partially to help fill in the interstices between the greenery and thereby increase the privacy? If you had solid greenery, if you had solid, high hedges, you wouldn't need the fence at all. MS. REEVE: We can't grow hedges under there because the trees are too big. They're enormous trees. It's basically like wild roses and ivy growing over there now. In the summertime there is some amount of privacy but basically in the wintertime, it's totally see through from the fall on once that stuff dies off. BOARD MEMBER SIMON: I don't have any further questions. CHAIRMAN DINIZIO: Ruth? BOARD MEMBER OLIVA: No. You're right on the 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 113 . 1 ZONING BOARD OF APPEALS JUNE 28/ 2007 2 3 main road there. I don't blame you for wanting a six foot fence. MS. REEVE: Thank you. CHAIRMAN DINIZIO: Gerry? BOARD MEMBER GOEHRINGER: I have to tell you over the years of going to Greenport, and this is no offense to you/ ma'am/ there were several six foot fences along that same property, not yours but I was happy to see them go. I'm still happy to see them go. I'm really not in favor of this. The only way I would be in favor of this is if you set it back from the property line and the ivy was allowed to grow the way it grows. I think once you take all of that fencing out/ you're going to end up destroying the ivy. Not purposely, but it's going to go. And ivy, by the way, is extremely difficult to reroot once it goes. So the only real effective way is to set it back away from the existing fence. Let the ivy grow. What grows/ grows and then take down the other fence, okay. If you so want to take down the other fence. MS. REEVE: I understand what you're saying. If you saw it, you would understand what I'm talking about. It's southern facing with huge trees. BOARD MEMBER GOEHRINGER: I've seen it. I was there. MS. REEVE: Under the trees going back very close to the house is tons of ivy. I don't think we would have any problem for the ivy to continue to grow over the front. It just takes over everything in the yard. We're constantly cutting it back. BOARD MEMBER GOEHRINGER: I know. MS. REEVE: It's been there since we bought the house 13 years ago. We did talk about setting it back a little bit. Again, the issue is with the huge old trees. They're very close to the road and they've become closer as they've made the sidewalk wider in front of the house. Everyone keeps saying you don't want to injure the roots of the trees because we're going to have to put the post down but they're already existing posts where the fence is now. So there's about, between the fence and the sidewalk, there's probably this much space (indicating). I did talk to a landscape architect about placing the fence farther back and maybe putting bushes in front. She said we can't 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 114 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 do that because it's going to harm the big trees. There are three huge trees and one of them is over 100 years old. BOARD MEMBER WEISMAN: You have a Copper Beech there that's gorgeous and the Weeping Linden. MS. REEVE: We have the Copper Beech, the Weeping Beech and a Silver Maple, I'm not sure. We also have a huge Chestnut too. BOARD MEMBER WEISMAN: That's my concern. Because if you start removing -- see a wooden post is going to be very different in diameter then the cyclone fence post, the thin little metal post. Even there there's going to be some disruption. However, I tend to agree with Gerry that visually right now, as a matter of fact, those trees are overgrowing on the sidewalk. You can hardly walk under them. They probably need a little tiny bit of pruning. MS. REEVE: We're constantly. All summer long, we're cutting the trees so that they don't splash over onto the sidewalk. The growth is so great that we're constantly cutting back the growth at the sidewalk side too. So I can't imagine that there would be any problem with it growing again over a wooden fence that it can actually attach itself to. BOARD MEMBER WEISMAN: Well, there's a huge amount of shade there. Although ivy does grow in shade, I think you need -- Maureen Cullenly (phonetic) . MS. REEVE: Yes, it's Maureen Cullenly (phonetic) and I didn't invent this myself. She basically said to me there should be no problem with doing this. And when I suggested that we plant something in front of it to make it look green in front until things grow over, she said no. It should be exactly where the fence is now. It was her idea, not mine. And that's coming from a landscape architect who has done other work on our property and examined it. Also the fence guy we talked to, Riverhead Fence Company. And he said the same thing. He said there would be no problem removing that fence and replacing it in that spot but that we shouldn't set it back farther. BOARD MEMBER WEISMAN: My only concern would be that, right now it's very lush. Visually, it's not obtrusive. It looks very harmonious, looks old 3 4 5 6 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 115 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 and historic. What I would not like to see is a plain six foot high wooden fence along the sidewalk on Main Street in Greenport. MS. REEVE: I feel the same way. BOARD MEMBER GOEHRINGER: The old ones looked horrible when they were further down the block. MS. REEVE: I'm not familiar with what was there before. BOARD MEMBER WEISMAN: You also want to do a return 24 feet along the side six foot high which you can do because it's a side yard. MS. REEVE: Oh, really? I didn't know. BOARD MEMBER WEISMAN: The application calls for 180 feet. MS. REEVE: I didn't know. I was wondering -- so that, I don't have to have a special application for the side yard. BOARD MEMBER WEISMAN: Actually, depending on where the other house is next to you, I think you have to step it down in a front yard, don't you? CHAIRMAN DINIZIO: You're supposed to step down your side which is 88 feet away from where they're proposing to put this fence. Anybody else have any questions? I have. I walk by this house everyday. I went to school in that house. I lived in Greenport all my life. Two, lots down, Dr. Levin's house, had a six foot fence to the corner and the Village made them return that back. Their law is a little different than ours. You're asking us to go from where you're allowed to go which is 88 feet back from the Main Road to right on the Main Road. Everyday I walk that sidewalk, everyday. I can tell you that the bushes and those trees are a problem. Trying to walk on that sidewalk. MS. REEVE: I agree. CHAIRMAN DINIZIO: They did raise it up a little. I don't think they raised it a foot but I think they did raise it up just because the road was raised up and they put nice curving in there. I gotta say, I don't think that you can put it right on the property line. If you want to go back 20 or 30 feet and have a 6 foot fence, I got no problem with that. MS. REEVE: We can't do that because the trees are too close. CHAIRMAN DINIZIO: Then go behind the trees. I'm not objecting to that. My objection is that 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 116 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 you want to put this right on the sidewalk. MS. REEVE: No, I just want to put it where the current fence is. CHAIRMAN DINIZIO: Right, which is four foot. Which is perfectly legal for you to have. You're asking us now to double the size to 50% more of that fence which is two feet more than it is already. We have certain standards that we would like to impose. One is that it be a four foot fence and if you want a variance for that, you have to come before us. And you're asking us to put something that should be 88 feet away -- MS. REEVE: I'm not following. Eighty-eight feet away from what? CHAIRMAN DINIZIO: Your side yard. If you wanted to put a six foot fence in your side yard 4 5 6 7 8 9 10 11 MS. REEVE: We're talking about the side yard not the front -- CHAIRMAN DINIZIO: To the corner of your house from the front yard. MS. REEVE: Are we talking about the side yard or the front -- CHAIRMAN DINIZIO: What I'm saying to you ma'am is, you can't have a six foot fence in your front yard. Your front yard is 88 feet back from the road. BOARD MEMBER WEISMAN: She knows that. She's going for a variance. CHAIRMAN DINIZIO: Right and I'm explaining to her the reason why I think she should move it back or that she's asking for entirely too much. I would be willing to compromise to the point where it's away from the street. She wants privacy, I buy that. I buy the privacy thing because it is on the Main Road. I just don't buy it right on the property line. Now, I understand there are some hardships but she can work around those hardships. Those trees are beautiful. I know they are very nice but there's certainly a way she can build a fence, have the privacy and still be away from the road. MS. REEVE: So you're saying leave that fence there and build a second fence back? CHAIRMAN DINIZIO: I wish that you would continue to cut that stuff back. It's very difficult to walk on your part -- MS. REEVE: Part of my problem is, I'm at 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 117 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 home with two kids and I have a husband that's in the city five days a week and I have to pay someone to come and do this all the time. It's a nightmare of landscape work constantly. CHAIRMAN DINIZIO: You want to keep it, you got to keep it so that it's not interfering with the public. It's a public sidewalk. BOARD MEMBER GOEHRINGER: Can we make a suggestion to this nice lady and ask her to possibly compromise and speak to somebody else and see if you can set it back a little bit farther? MS. REEVE: Yeah. I actually don't think it's possible. So, if it doesn't look like I'm going to get it, then I'll just leave what's there, there I guess. Maureen told me that she didn't think it would be an issue at all because it's not as though it's in a historic part of town and it's not as though, even driving by you can still see the house. It's an enormous house. It's simply having the privacy in the front yard. If we set it back, then I'm going to have the problem with vagrants. Which is what we had when we first moved there. People coming in and sleeping in our yard. So they'll be sleeping now between the sidewalk and our yard. It's just unfortunate. BOARD MEMBER WEISMAN: Can you address that a little more? The application suggested that you're original concern was a sound barrier, it's traffic. MS. REEVE: And privacy. I mean, I'll show you the letter I sent to the neighbors. BOARD MEMBER WEISMAN: But the application didn't address the privacy issue so much as it did the sound barrier issue. It was a very brief application. MS. REEVE: I'm sorry. Maureen did the application for us. BOARD MEMBER WEISMAN: It's pretty brief. So if you're having security problems in your mind, can you just make sure for the record that we're clear about what goes, why you're concerned, why you feel that a higher fence would be advantageous to you in terms of your security and privacy. MS. REEVE: Quite honestly, I thought about well, the fence. I could also have a gate in the front property so people aren't wandering in which people do quite a bit. People are standing there waiting for the bus. They'll stand in our 3 4 5 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 118 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 driveway. They'll leave their food in our driveway. They'll leave all kinds of junk around. So, I thought no, if I put a gate there, then people will know when we're not there and I'll have an even harder problem keeping people out of the property. So I just assumed if I have a higher fence, then people who are walking by would not be looking into the property and watching my kids play in there. That's all. It's a simple issue. To me, it was a simple issue and I'm not trying to do anything ugly. I'm trying to put something nice there that will -- BOARD MEMBER GOEHRINGER: Can I just mention one thing to you. I've had some experience with these things. You can setback a fence and since you're putting a wooden fence up, it's much easier. You can use steel posts as opposed to wood posts which take up much less room and can be worked in between rooting systems of trees, okay. That's very simple to do. So instead of using a huge post hole digger to go down and put wood posts, they use inch posts or inch and a quarter posts or inch and a half posts depending upon what type of post and what thickness of the post that they use. I honestly feel, as I sit before you, that you can set this fence back farther from the property line than you're anticipating at this time and create the same situation that you're trying to create. If you leave that grown over in front, better yet, snip it as the Chairman as said, so people can walk by, nobody is going to be able to get over that fence because it's so grown over in there. You're going to have a double situation. You're going to have the fence that exists plus you'll have the fence that you set back. But you need to speak to someone that can do that. MS. REEVE: Right and have the space in between that anyone can jump in and do whatever. BOARD MEMBER GOEHRINGER: I'm not talking about a great space. It depends upon us and how we can deal with the whole situation. I'd like to go back and look at it again, to be honest with you. MS. REEVE: You're welcome to come over any time. I'll talk to Maureen and see if there's any other way we can do it. BOARD MEMBER GOEHRINGER: That metal post 3 4 5 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 119 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 though is not going to disrupt the rooting system of those trees. The hole that has to be dug is not a huge hole which would normally do with a 4x4 post and then set it in cement and blah blah blah. That's just my opinion. MS. REEVE: And then you can still put a wooden fence on a metal post like that? BOARD MEMBER GOEHRINGER: Yes, they put U-brackets on them. MS. REEVE: Well I'll talk to the fence company and see if that's possible. I'll talk to Maureen and see if there's some other way we can put it across. BOARD ASSISTANT KOWALSKI: Do want to do that, I'll close the hearing subject to additional 3 4 5 7 8 9 10 CHAIRMAN DINIZIO: That's up to her. She might want to testify again. BOARD ASSISTANT KOWALSKI: Do you want to keep the hearing open? CHAIRMAN DINIZIO: Keep the hearing open. BOARD ASSISTANT KOWALSKI: Do you want to adjourn it and come back in a month or do you want to do it in writing? MS. REEVE: I don't know. I've never done this before. BOARD MEMBER GOEHRINGER: I think you should come back after you speak to somebody and talk about the distance. BOARD MEMBER WEISMAN: Investigate some more, see what other options you have. BOARD MEMBER GOEHRINGER: The advantage is, you have so much ground cover in front that you will not even see that secondary fence. It will still give you the privacy you need to afford and the sound barrier situation that you're looking for. MS. REEVE: I don't think it'll look very nice actually. I mean it'll get grown over too, I suppose. BOARD ASSISTANT KOWALSKI: We would adjourn this to August 2nd. It would be in the morning approximately 9:45. CHAIRMAN DINIZIO: I'll entertain a motion. (See minutes for resolution.) ************************************** 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 . 25 CHAIRMAN DINIZIO: I'll entertain a motion for a fifteen minute break. 120 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 (Whereupon a short recess was taken at 2:30 p.m. ) 3 (Back on the record at 2:55 p.m.) **************************************** 4 CHAIRMAN DINIZIO: Okay. We're going to reconvene. I need a motion. (See minutes for resolution.) ***************************************** 5 9 Hearing #6045 - Gross. CHAIRMAN DINIZIO: Our next hearing is for Amy Gross. Michael, that's yours. BOARD MEMBER SIMON: Okay. "Request for Variances under Sections 280-l5F and 280-ll6A, based on the Building Inspector's April 16, 2007 Notice of Disapproval concerning an application for a building permit concerning proposed addition to a single-family dwelling, pergola and swimming pool. The reasons for disapproving the building permit application are that the addition to the existing dwelling will be less than 100 feet from the top of the bluff or bank adjacent to the Long Island Sound; (2)the proposed addition places the existing accessory garage partly in a side yard; and (3)that the proposed swimming pool construction and pergola will be less than the code-required 50 feet from the front lot line when located in a front yard. Location of Property: 740 Northview Drive, Orient; CTM 13-1-4." I guess Mr. Ryall? MR. RYALL: Yes. I'm Bill Ryall with Ryall Porter Architects. I'm Amy Gross' architect. I also live in the same neighborhood as she does. We received two letters a few days ago, one from Thomas McMann from the Soil and Water Conservation District. The other was from Mr. Terry. We gave you a letter in reply to that because I think each of them may have misunderstood a couple of things about the application. BOARD ASSISTANT KOWALSKI: We're just giving it out now. MR. RYALL: Would you like for me to read through that and see if that's an issue or I can just describe the project to you then answer any questions. CHAIRMAN DINIZIO: However you would like to handle that. MR. RYALL: I'll do that. So, the existing, as you know, this is on the property is on Long 6 7 8 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 121 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 9 Island Sound, and there's an existing house, a very small house, really kind of more like a cottage than a house probably 1200 square feet existing. Amy would like to add onto it so that she can have a master bedroom and a screen porch and a utility room. There's no basement and there's not going to be a basement. If you look at the survey that was prepared by Joe Ingegno (phonetic), the addition that we've made moves away from the bluff towards the Northview Drive, the front of the house. We've also located new dry wells throughout so that we can collect all of the roof runoff from both existing and the new structure. There's one and then we're proposing a swimming pool which we put in the front yard because it's a very flat, large flat area in the front. But also, I'd like to actually ask your opinion about this. I had assumed that you want these pools always to be in the front and as far away as possible from the bluff in bluff situations. That's what we did. So, there were -- in my letter raises a couple of issues that were in Mr. McMann's letter. He stated that we were making a permeable surface for the driveway. We're not. We would just be reconfiguring the gravel driveway so it would be a permeable not an impermeable surface. He also mentioned something about controlling, I think, silt runoff during construction. Of course, we would do the hay bales along the back of the house so that there would be no runoff, nothing at all would be affecting the bluff by doing this work. One of the -- in our proposal we added a master bedroom but also the screen porch down below so it's a two-story structure although it's not very tall. The top of the peak of the second story is 21 feet 7. When we add up all of the things that we're doing, the addition, the pool and even the random stone set in sand around the pool paving. So again it's a permeable surface there. We're just below -- the new rule about the 20% built area, not 20% of the entire lot but 20% of the buildable area. In other words, we're excluding all the bluff from the top of bluff line which was flagged by Glen Just (phonetic) of JMO. CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: My first question is, you say that we certainly that we do favor the 3 4 5 6 7 8 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 122 . 1 ZONING BOARD OF APPEALS JUNE 2S, 2007 2 3 pool being farther away from the bluff rather than closer to it but one of the grounds of disapproval was that it was so far from the bluff that it was only 15 feet from the drive. Are there reasons why it has to be that close to Northview Drive? MR. RYALL: No. It's IS -- the letter does say 15 but the survey shows IS. No, it actually could be farther away from the drive. You can sort of imagine looking at our plan that we have some leeway there. We had pushed it back as far as possible. BOARD MEMBER SIMON: My other question concerns the distance from the bluff. The five feet from the bluff is from the slate and gravel patio. MR. RYALL: Yes. It should say on the survey that that's existing, which it is. BOARD MEMBER SIMON: Nothing is going to be done to that? MR. RYALL: Nothing. We won't touch that back there at all, no. BOARD MEMBER SIMON: So all the new construction is going to be in the proposed addition which is landward of the house and the garage and the pool and the pergola? MR. RYALL: That's correct. You'll see that there's, on the agenda that was written up, the second point, number two, says that by putting the addition on the front, inadvertently we've ended up putting the existing garage into creating partly a side yard in which -- BOARD MEMBER SIMON: I'm not going to raise a question about that because I think the rule -- first of all, the backyard rule for garages, as far as I can see, goes back only to the days when barns used to be behind houses for horses and then they turned them into garages. It's especially strange when this means putting it close to the road because you're waterfront property. So there may be a question here. I'm not going to raise it. MR. RYALL: I can't imagine that it's a problem. You wouldn't want to move the garage. That'd be crazy to do that. BOARD MEMBER SIMON: That's all I have. CHAIRMAN DINIZIO: Ruth? BOARD MEMBER OLIVA: I've looked at it and I think from your testimony here that you've covered all the points that I was interested in. It looks 4 5 6 7 S 9 10 11 12 . 13 14 15 16 17 IS 19 20 21 22 23 24 . 25 123 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 like a good project. CHAIRMAN DINIZIO: Leslie? BOARD MEMBER WEISMAN: I think all the drawings are clear. What you really need is a variance for the pergola and pool from the road and setback and you need because this accessory garage now winds up partially in the side yard, we simply have to say that's okay, basically. I think it's a very modest addition. It clearly is an addition to an existing house. Nothing is being demolished. Nothing is being added. The only loss here is some beautiful landscaping which I assume they're going to replace because it's so nicely landscaped, I can't imagine them not wanting to continue to create privacy. There is one dry well that's maybe a little bit close to the bluff line and perhaps you might want to -- would you reconsider scooting that back a little bit? MR. RYALL: We could push it right up against the addition, it's be fine. BOARD MEMBER WEISMAN: Even though what is it four foot? MR. RYALL: They're eight foot diameter, four feet deep. In one of the letters you just received, it asked why did we put the dry wells on the front side of the house? The reason is that the roof on the existing house is draining in the direction of the bluff. So it makes more sense to catch it right there and right by the down spout. But I'd be happy to move that dry well closer. BOARD MEMBER WEISMAN: If that can go back into the corner a little bit. You'll accomplish the same thing and you just wont' be that close. MR. RYALL: Also, I didn't say it but the pool would be gunite. I can't imagine there would ever be any reason to drain the whole pool. That was another point that Mr. Terry made, I think. Of course, we can't have a dry well the size of the pool but we're not going to be draining that pool anyway. BOARD MEMBER WEISMAN: You are proposing a dry well for pool backwash anyway? MR. RYALL: Absolutely, there's a diameter for backwash and that's as much that is ever going to come out of there. But I did want to ask this question just because Amy Gross had asked me to ask you guys. How do you feel about pools on the side? Supposing the garage hadn't been there, 3 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 124 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 it's actually a rather beautiful place to have a pool over there on the side. You'd be quite close to the bluff and you'd see the water more clearly from the pool. But I really didn't think you'd allow pools on the side yard if there were ever a way to put it in the front yard. We do have plenty of flat area in the front. CHAIRMAN DINIZIO: You'd have to ask for a variance for that. MR. RYALL: Of course, we'd ask for a different variance. BOARD MEMBER OLIVA: I think you should leave while you're ahead. MR. RYALL: Okay. I'll pass that on. BOARD MEMBER SIMON: We've had a number of people who propose putting their swimming pools between their house and the bluff because they want to watch the Sound and those are ones that we have problems with for reasons having to do with the preservation of the bluff rather than some rule about where the pool ought to be. MR. RYALL: I see, okay. Thanks. CHAIRMAN DINIZIO: Hold on just a second. BOARD ASSISTANT KOWALSKI: There's just three cards, three green signature cards we were waiting for from you. If you can mail them to us. MR. RYALL: Oh. And you didn't get them all 3 4 5 7 8 9 10 11 12 . 13 14 15 yet? 16 BOARD ASSISTANT KOWALSKI: No. MR. RYALL: Which one are you missing? BOARD ASSISTANT KOWALSKI: All three of them. When you can, next week. MR. RYALL: Okay. I'll do that, thanks. CHAIRMAN DINIZIO: Anybody else from the audience, any questions from the audience? BOARD ASSISTANT KOWALSKI: There's somebody in the back. CHAIRMAN DINIZIO: Sure. Talk up to the microphone sir. MR. WINTER: Good afternoon, Members of the Board, Chairman. My name is John Winter, an immediate neighbor of Amy. We did sign the green card. We did receive it. I just wanted to mention that. BOARD ASSISTANT KOWALSKI: You did, okay. Thank you for telling us. CHAIRMAN DINIZIO: Thank you. Anybody else wish to speak for or against this application? 17 18 19 20 21 22 23 24 . 25 125 . 1 ZONING BOARD OF APPEALS JUNE 28,2007 2 3 Okay. I'll entertain a motion that we close this hearing until July 12th. (See minutes for resolution.) ************************************* 4 Hearing #6040 - Sachman CHAIRMAN DINIZIO: Our next hearing is Steve Sachman. This is Gerry's, so I'll read the notice. "Request for Variances under Section 280-15, based on an for a building permit and the Building Inspector's April 9, 2007 Notice of Disapproval for an accessory garaged proposed: (1) at less than 15 feet from the side lot line, (2)at a size exceeding the code limitation of 750 square feet, and (3)with dormers exceeding the code limitation of 40% of the roof width. Location of Property: 4705 Nassau Point Road, Cutchogue; CTM 111-9-9." I have no questions at this time but I reserve the right to ask them later. Sir, state your name please and your address. MR. NEMSCHICK: Sure. I'm Ray Nemschick. I'm the architect for the Sachmans, representing them. We're at 735 Deerfoot Path, Cutchogue. CHAIRMAN DINIZIO: What do you have to say? MR. NEMSCHICK: There's a couple of things. First off, the Sachmans have an existing garage that's six and a half feet to the lot line. We're not looking to encroach any further then the existing garage. But what it is is that we're looking to increase the existing garage. Right now the structure is not exactly what they would want to put an addition or to increase the size of the garage which is what we're trying to do by three feet on width and three feet in length. But the issue then becomes from the side yard setback. I want to note that we're on a walking right of way. We're not abutting another lot. The other thing is -- so that's one of the variances as far as that goes, the setback requirements. The square footage requirements I wanted to not that the square footage for the garage is 750 square feet but because there's a balcony from that unheated storage, that kicks us over to 750 square feet. So I think it's important to note that really what they're going for square footage wise is an exception to the balcony, not to the garage. We'd be amendable, if we had to, to reduce to get under the 750 square feet and the other thing is that the front porch or not porch, the patio in the 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 126 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 front is at grade. So it doesn't count under the definition of floor area. So it wouldn't be an increase in the square footage requirement. So really all we're talking about is the square footage of the balcony, not what's below it. The code does allow for -- the Southold Town Zoning code, does allow for six foot by five foot porch extension into a setback that doesn't come under floor area. So I'd be amendable to reducing that to accommodate the six foot by five foot rule instead of what it is now if we don't get the variance. The other thing is that -- and this is the more peculiar one, the last one that we're up for is the dormer rule. There's no dormers on the garage. Those are the exterior wall and the roof. The roof is at 3 on 12 pitch. Southold Town Zoning Code does allow for the height that I'm under, 20 foot, at a 3 on 12 pitch to the ridge now with the new accessory codes. So I'm not really understanding why we've been denied for dormers. I brought it up to the Building Department and they kind of agree with me but they don't want -- they want you guys to say that you don't need or it's not a dormer. BOARD MEMBER SIMON: We have a copy of the code here. How does the code define dormer? MR. NEMSCHICK: It doesn't. A dormer is defined as a secondary roof structure that's laced into a primary roof structure. Meaning that you would have to, in order to produce a dormer onto an existing roof, you would have to remove some of the rafters, put in a header and then create a dormer off of that roof. This actually, if you look at the cross section of the building when you're looking at the plans, you can see that we have an exterior wall in a 3 on 12 pitch and the actual 12 on 12 pitch to match the house with nothing but fliers that come off the front of the house. It's a aesthetic move to tie it more into the house. It's not really, so it's a skirt but it's not the primary roof structure. CHAIRMAN DINIZIO: Leslie, do you have something to ask? BOARD MEMBER WEISMAN: The code does not describe dormer and as an architect to an architect, we understand structurally what a dormer is supposed to be. But in terms of visual impact, they way this is looking, the average 3 4 5 6 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 127 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 individual would assume this is a dormer. What it is is a second floor that has an awful lot of windows, two rooms, full clearance, finished ceiling and it's noted as unheated storage. Why does unheated storage need two rooms, one roof and all those windows and a finished ceiling and an exterior door that goes out to a balcony? MR. NEMSCHICK: You'd have to ask them. They just asked me that that's what the requirements were for the structure. BOARD MEMBER SIMON: This raises lots of questions. MR. NEMSCHICK: I'd ask why that comes under your questioning? BOARD MEMBER WEISMAN: Because it's potentially habitable space. MR. NEMSCHICK: But it's potentially habitable space. Doesn't mean that it is habitable space. BOARD MEMBER WEISMAN: The reason that the code was rewritten was to create accessory structures that were somewhat in scale and proportion to the existing principal and the size of the property. BOARD MEMBER SIMON: And by special permission. BOARD MEMBER WEISMAN: I don't have a problem with the setback because you described very accurately the woody sort of footpath basically that is already sitting there. The existing garage. What we're trying to do is get this in as close to compliance with the new law as possible. So if you're amendable to reducing or eliminating that overhead porch and balcony, which is the extra 100 square foot, then you're within compliance, your 750 square feet right there. That's one issue. The setback is the preexisting structure there and it has no visual impact on anyone. It's bamboo screening on both sides and it's simply a footpath. It's a paper road. So that setback is not problematic to me. It's a very big structure. I think the issue is probably the amount of glazing with all those windows and lights up there that the Building Department noticed as dormers. Dormer law now requires no more than 40% of the width of the roof. MR. NEMSCHICK: It always has. The 40% dormer. But what I'm asking is for clarification 3 4 5 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 128 . 1 ZONING BOARD OF APPEALS JUNE 28/2007 2 3 -- the windows, I don't think there's any part in the zoning code that describes that I can't put as many windows on an accessory structure as I want. BOARD MEMBER SIMON: Not explicitly but the house I had before was renovated, had what we always called double dormers. I guess you would not call them double dormers, you would call them second floor structures. But in any case, that is a secondary issue. To me the primary issue has to do with this habitable space. The code may not specifically count windows but they do count things like dwelling spaces. It's pretty clear that you cannot have two dwelling units on the same property. Whatever you call it, you cannot get permission for a second dwelling unit. And if something looks like a dwelling unit and sounds like a dwelling unit and acts like a dwelling unit, if you willi one wonders what the zoning board is supposed to do about this. Are we just supposed to simply say we cannot find any explicit language which says we cannot support this disapproval because we cannot find the specific code and verse in the code. I think with a little one could do so but I don't really want to go that route. It looks to me like there's a dwelling being built there and we're being asked to approve it. We're not. MR. NEMSCHICK: That's not exactly true. You're not being asked to approve a dwelling unit. The truth of the matter is, we haven't been denied for that reason. I would ask the Board that they not even entertain that. BOARD MEMBER SIMON: We're asked, mistakenly asked by the Building Department, a misinterpretation about what a dormer is. We're given the opportunity to look at the floor plans and elevations of this structure. We find something that wasn't specifically drawn to our attention but it looks like the kinds of things that people have been trying to do allover this Town, ever since I've been here and long before, putting in dwelling units over the garage and we've turned down a lot of places and the Building Department has turned them down. We've supported them because they look pretty much like they're secondary dwelling units which are not recognized by the code. So I don't think we have a whole lot of choice. 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 129 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 MR. NEMSCHICK: You haven't approved any secondary dwelling units? BOARD MEMBER SIMON: Not as secondary dwellings. We don't have the authority. MR. NEMSCHICK: Accessory apartments. Let's put it that way. Have you approved accessory apartments? BOARD MEMBER SIMON: They have to be within the principal dwelling. MR. NEMSCHICK: Understood but have you ever approved any detached accessory apartments? BOARD MEMBER SIMON: No, we can't. CHAIRMAN DINIZIO: You're not asking us that. MR. NEMSCHICK: That's what I'm getting at. I'm trying to prove the point that I'm not asking you for that. BOARD MEMBER SIMON: You're not asking for it but if your client were doing something and did it and it was contrary to the spirit and letter of the code and you never asked for it, that wouldn't be much of an excuse, we never asked for it, we just did it. Looks to me this is what they're doing or trying to do. BOARD MEMBER WEISMAN: Your client never said to you we want two spaces above the garage that we can use with a guest room with storage? MR. NEMSCHICK: No. BOARD MEMBER WEISMAN: You can understand and I'm not suggesting you know the answer to this, your client told you what they wanted and you as the architect did it. But what we're suggesting is when you see finished ceiling in a garage, that's called out as storage and there's lots and lots of windows in what would be a loft space, one would then wonder why would you go to that expense? For boxes? Do boxes need all that night? Is it an aesthetic decision? MR. NEMSCHICK: Sure. For them it's an aesthetic decision and they have the money to build it. I'd never ask the question to say I don't want you to put drywall on the rafters. BOARD MEMBER SIMON: I understand. That is not what you're expected to deal with. You can understand that we have to cast our net a little bit more broadly than you. MR. NEMSCHICK: I feel for you actually. BOARD MEMBER SIMON: We're not blaming you for not saying to your clients, hey are you sure 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 130 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 you know what you're doing. MR. NEMSCHICK: I'm not thinking that. I don't have any feelings anyway so I'm not taking it that way. BOARD MEMBER WEISMAN: I just have one more question actually. Do you have any idea, there's a proposed lap pool also adjacent which doesn't need a variance. Do you know if there's any intent to use upstairs above the car part in conjunction with the pool? That porch or anything like that? MR. NEMSCHICK: As storage, I think that's what they're looking for. I mean they have small kids so I would imagine that's why they wanted the balcony so if they're up there messing around with their storage, that they can see the kids in the pool. Like I said, I'm not trying to get one by anybody. I'm just operating under what the zoning codes let me do as an architect. The reality of it is is that I don't see these as dormers. I'd like for somebody to tell me how they're dormers so that I can better explain to the client why they would be denied, if they were to be denied. CHAIRMAN DINIZIO: Certainly you have a person here that wrote that law. Maybe you can give them a little advice, Leslie? BOARD MEMBER WEISMAN: I believe the Building Department noticed it that way, if you look at the elevation, even though this is a story that's corning up from this and the pitch is 3 on 12 and 9 on 12 here. Because this projects out from the ridge and has a wall corning down even though if it started here, it would be clearly a dormer. I think they wrote it that way because of what it looks like. Structurally, it would have to corne into the roof structure here rather than hit the ridge. MR. NEMSCHICK: If it were a dormer, correct. BOARD MEMBER WEISMAN: I think because it looks like a dormer, they wrote it as a dormer. Again, the code doesn't define -- dormer in architectural terms is a structural form, a roof form. It's not -- they're looking at it in terms of windows within a roof, the element that's popping out of the roof, sitting on top. MR. NEMSCHICK: So if I remove the fliers then, it's not a dormer? What I'm getting at is the fliers are the two 9 on 12 pitch. If we take those off, then we comply with -- 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 131 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 CHAIRMAN DINIZIO: That's just an architectural thing. There's no use to that. MR. NEMSCHICK: The use is to try and lesson the second story. Whatever it is, there's use to it. CHAIRMAN DINIZIO: They're underneath the house. You're just dressing up the house a little bit. MR. NEMSCHICK: Right to make it look like the primary structure so that it doesn't look so out of place as an accessory structure. I'm trying to be sensitive to it. CHAIRMAN DINIZIO: That dormer, so to speak, is the entire roof line of the top of the second floor. MR. NEMSCHICK: But it's not a dormer, that's what I'm trying to say. CHAIRMAN DINIZIO: That's why I said so to speak. BOARD MEMBER SIMON: How tall is it? We haven't seen the inside? Is there room to stand up? MR. NEMSCHICK: Sure, look at the section. There's a sectional drawing in there. BOARD MEMBER WEISMAN: You know what, it's a second roof basically with a wall that extends beyond. BOARD MEMBER SIMON: So it's a second story? MR. NEMSCHICK: Well, it's a story and a half. We're underneath the roof so it's defined as a story and a half. BOARD MEMBER SIMON: I believe it's a story and a half if it's less than 50% floor area, habitable floor area. MR. NEMSCHICK: Under 7 foot 6, correct. BOARD MEMBER SIMON: Under 7 foot 6, it's 50% of that area or more is habitable, then it's a second story. Otherwise, it's part of the house. MR. NEMSCHICK: But it's not habitable. I think we're arguing semantics. I'm trying. BOARD MEMBER WEISMAN: He's not proposing it as habitable space. It's proposed as unheated storage. CHAIRMAN DINIZIO: He wasn't turned down for that either. BOARD MEMBER WEISMAN: He wasn't turned down for that. It was just because of the amount of glazing and what is written up as a dormer and 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 132 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 front yard setback technically from the little right of way. MR. NEMSCHICK: It's not a front yard though because it's not considered a corner lot. BOARD MEMBER WEISMAN: I know that. And the square footage, that's it. CHAIRMAN DINIZIO: Ruth, do you have anything to add? BOARD MEMBER OLIVA: I think Michael and Leslie have covered the idea of the dormers and square footage and maybe some habitable space question mark. BOARD MEMBER WEISMAN: Not his fault. CHAIRMAN DINIZIO: Quite honestly, I would caution the Board for making any assumption in this regard. I think we have to take the facts as they are and take them from there. I can say the reason why this is in the location that it's in is because it had a variance way back when and I'm a little concerned about that, the 7 foot. MR. NEMSCHICK: It wouldn't have needed a variance way back when, even last year. This wouldn't have needed a variance last year. CHAIRMAN DINIZIO: I mean the reason why it is where it was is because it had a variance before we said you could have in a front yard an accessory structure. MR. NEMSCHICK: Now it's a nonconforming. CHAIRMAN DINIZIO: I'm just going over -- looks to me like this application is riddled with applications to the zoning board. There's another one. Here's another variance. That's not anything to do with this. Looks like your in-ground pool was granted which probably you wouldn't need now either. I'm going to take you at your word for it, sir, that this is not going to be an apartment. MR. NEMSCHICK: Take the client at their word, not at my. CHAIRMAN DINIZIO: That's what I mean. I'm reading the record. It looks like you asked for what you got denied for. The dormer part of it is a law that is not clear, quite honestly. Until we try to peel it every month, trying to deal with unclear laws and this one in particular is riddled with problems. That's my opinion. I'll go no further with that if you'll go no further with that. I think that if you could maybe do without the balcony. The only thing that throws a flag 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 133 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 up, I think is 750 square feet. That's a dwelling. That's the law. A legal dwelling is 750 square feet. MR. NEMSCHICK: 850 square feet is a legal dwelling. CHAIRMAN DINIZIO: It's only 800 feet. I can understand some confusion on that part. I'll state what I say is that you applied for something, you are responsible to live by the code and obviously, you have. I don't know whether I have a problem with this or not. I haven't really heard too much about. We spoke mostly about the dormer which is something that I'm not concerned about. It seems like the only thing that really throws you off here is that balcony. If you can do something with that, maybe we can make -- MR. NEMSCHICK: Okay. We'll take it off. I think the setback is what the main, I never even assumed to get denied and it was my fault for putting a balcony on and not realizing that I counted under. That's something that I can reduce the square footage. I've already told the Building Department that but they said, leave it like this so they can hear it. BOARD MEMBER WEISMAN: We can look at all of it at once. MR. NEMSCHICK: The dormer law, that's something I think is clear in my head but something that had to be discussed. CHAIRMAN DINIZIO: You've probably looked at the code more than I have. The pitch of the roof -- the dormer is a roof pitch, normal every day roof pitch. Not like it's a flat roof. MR. NEMSCHICK: Yeah and it's under the height requirement. For my own, I wanted to understand because there's clients that ask for this so I need to tell them what I think they can have in the Southold Town zoning and what the Building Department will approve. CHAIRMAN DINIZIO: Without a need for a variance. MR. NEMSCHICK: I'd be amendable to reducing some of the look of the windows. If you want, I can cut it in two and try and create a little bit. I don't think they'll have a problem with that either. I think what we really went for is the setback, was what I was assuming I was going to get denied for because I knew that was a direct 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 e 25 134 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 violation. BOARD MEMBER SIMON: Question. As I see the plans, the balcony is not -- there's no way of getting onto the balcony. MR. NEMSCHICK: Sure there is. BOARD MEMBER SIMON: How? MR. NEMSCHICK: The door. BOARD MEMBER WEISMAN: Right on the second floor door. BOARD MEMBER SIMON: Okay and this is presumably in case the storage material wants to get out onto the balcony, is that the idea? MR. NEMSCHICK: From their point, they have small children and if they're in the pool, they want to be able to walk out and see them. BOARD MEMBER SIMON: From the storage area? MR. NEMSCHICK: Correct. BOARD MEMBER WEISMAN: They can do that with a window. MR. NEMSCHICK: Yes, exactly. They'll be fine with that. If I take off that, then they won't have the limitation site line wise to even see it. CHAIRMAN DINIZIO: Okay. BOARD ASSISTANT KOWALSKI: How many square feet would that be? MR. NEMSCHICK: It'd be 750 square feet when I reduce it. BOARD ASSISTANT KOWALSKI: Bring it right 4 5 6 7 8 9 10 11 12 . 13 14 15 16 down. 17 BOARD MEMBER WEISMAN: We're going to try and just make it as conforming as possible. CHAIRMAN DINIZIO: Any other questions that the Board would like to ask of this applicant? Do you have anything that you would like to add to this? MR. NEMSCHICK: Nothing, thank you. CHAIRMAN DINIZIO: Hearing none, I'll entertain a motion to close this hearing. Oh yes, anybody in the audience that would like to speak for or against? Hearing none, I'll entertain a motion to close this hearing until the 12th. (See minutes for resolution.) ************************************** 18 19 20 21 22 23 24 Hearing #6049 - Retus BOARD MEMBER SIMON: It's mine. Brian Retus. "Request for Variances under Sections 280-116A(1) and 280-124, based on the Building Inspector's May 14, 2007 Notice of Disapproval . 25 135 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 concerning: (l)proposed additions with alterations to the existing dwelling proposed at less than 100 feet from the top of the bluff adjacent to Long Island Sound, (2)addition at less than 15 feet on a single side yard, and (3)deck existing at less than the 40 feet from the top of the bluff, required minimum under ZBA #3613. Location: 235 Soundview Road, Orient." And you are? MR. RETUS: Brian Retus, 1250 Northsea Drive. I currently reside at 1250 Northsea Drive, a block away. BOARD MEMBER SIMON: Would you like to -- MR. RETUS: Sure, basically, we're trying to we bought this home from a neighbor approximately a year ago, Merry and I. This is my wife, Merry Retus right here. When we bought the home, it's a cape cod that was originally built in 1966. We sat down with Mike Macrina, our architect who's here in case there are any architectural or engineering questions. When we met with him, Merry had a folder of different ideas that she had put in the folder for years and we told him to build us a house, to design a house with two criteria. Number one, to stay within the footprint and number two to stay within the character of the neighborhood. Having said that I'd like to present to the board, I took some pictures of some homes on the block. I also need to turn this in. BOARD ASSISTANT KOWALSKI: Thank you very 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 much. 18 MR. RETUS: I also have a letter from one of my neighbors that we didn't request but they felt they wanted to do for us since they wouldn't be here, they're on vacation. I'd like to present that to the Board also. The letter, by the way, is from our neighbor directly to the east of us and they are the only full time people that we were required to notify. BOARD ASSISTANT KOWALSKI: The letter is from Rob Shore (phonetic) for the record dated June 20th. CHAIRMAN DINIZIO: Basically, it states that these are some upstanding people and they have no objection to the application. MR. RETUS: Thank you. I know you have the plans but Mike drew this up for us to take a 19 20 21 22 23 24 . 25 136 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 gander at. Basically, what we're asking for a variance would be to convert a one and a half story cape to a two-story home. We're essentially converting existing attic space to usable living space. Also in the variance there was a question about the deck. What we're proposing to do is there's a deck there right now, we're proposing to stay within the same footprint of the deck. We'll replace the deck with a new deck but the dimensions are not going to be changed. BOARD MEMBER SIMON: Is it going to be covered? MR. RETUS: Yes. BOARD MEMBER SIMON: It'll be covered from the deck to the porch essentially? MR. RETUS: Yes without changing the dimensions of the footprint of the deck. CHAIRMAN DINIZIO: You're not going to be closed. MR. RETUS: There are five columns. What we're asking the Board to grant is a variance to build this home. We're going to make it our permanent home. Like I said, we live a block away. We feel it's of modest size and fits in perfectly to the character of the neighborhood. I also believe with us taking the house and adding the extra drainage to it, if you were to stand at the house now when it rains, Merry calls it the splash house. There's water that splashes allover. With the proper drainage, I think we'll be well in the scope of being good stewards for the land and taking the water where it should be. We've also agreed, of course, to the ten foot no mow zone. Basically, I think the result would be a win/win situation. We'd have a beautiful home to live in. I think Mike did a great job designing it. The protection will be as good or better for the environment than it is now under the current conditions of the property. I think that's all I have to say. CHAIRMAN DINIZIO: Okay. Anybody else have anything? BOARD MEMBER OLIVA: I just want to know have you checked the foundation? MR. RETUS: Yes. BOARD MEMBER OLIVA: Do you have an engineer's report that you can give us? CHAIRMAN DINIZIO: He doesn't need to give us 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 137 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 that. 6 BOARD MEMBER OLIVA: He doesn't? He's putting a two-story on. CHAIRMAN DINIZIO: If he's going that far, he's going to get stopped. When he gets stopped, then he's going to have to do whatever he needs to do. MR. RETUS: We've gotten bids from various contractors and we did ask them to take a look at the structure to give us recommendations on it. CHAIRMAN DINIZIO: How old is the house? MR. RETUS: 41 years old? CHAIRMAN DINIZIO: What kind of -- block foundation? MR. RETUS: Yes. CHAIRMAN DINIZIO: Cement? Full basement. MR. RETUS: Yes, with a crawl space. CHAIRMAN DINIZIO: So you can walk down there and see that it's nice and dry? MR. RETUS: Yes. CHAIRMAN DINIZIO: It is dry? MR. RETUS: Yes, it is. BOARD MEMBER SIMON: How far is the house from the top of the bluff? MR. RETUS: You have the survey there. I believe it's 38 feet, 36 feet. BOARD MEMBER SIMON: At one time it was 56 feet, am I giving the right information? MR. RETUS: We only bought the house a year ago so I don't. BOARD ASSISTANT KOWALSKI: It was 40 feet. BOARD MEMBER SIMON: I may be thinking of another application where the bluff shifted from 1987. BOARD MEMBER OLIVA: It eroded back in the mid '90s. BOARD MEMBER SIMON: Is there any concern that the bluff will continue to erode so that in ten years from now it'll be a lot closer to the house than it is now. MR. RETUS: I think that can be answered by -- there were two letters that were faxed to us from the zoning board. The one was from the Suffolk County Soil and Water. If I can read it, "we have received your request for an evaluation and recommendations regarding the project referenced above. A site inspection was conducted on June 14, 2007 and the following conditions were 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 138 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 6 observed. The existing residence is approximately 35 feet from the top of the bluff at the closest point." It's actually 36. "Between the residence and the top bluff, the land is vegetated with turf grasses and the land slopes toward the bluff and toward the east. The bluff face is well vegetated with herbaceous and woody plant materials and one Pitch Pine tree. There is an existing stairwell to the beach. Numerous large boulders are positioned at the tow of the bluff and the bluff appears stable. If the conditions of maintaining a ten foot wide non-turf buffer landward of the bluff top and out letting roof runoff into dry wells, the proposed additions to the residence should not adversely affect the stability of the bluff." I think your concern was addressed by this letter. BOARD MEMBER SIMON: Right and we have copies. MR. RETUS: Also, we're not building anything closer to the bluff. We're staying where we are as far as the existing footprints is concerned. Does that answer your question? BOARD MEMBER SIMON: Yes. CHAIRMAN DINIZIO: Anybody else? BOARD MEMBER WEISMAN: The proposed copula at the top according to the section that you've drawn here does not appear to be a habitable. It's a light well and it's not habitable. MR. RETUS: Correct. BOARD MEMBER WEISMAN: The side yard setback of 5 feet 7 inches is a consequence of a proposed shower, outdoor shower. In fact, the primary structure has got a ten foot side yard? MR. RETUS: That is correct. BOARD MEMBER WEISMAN: Soil and Water refers to the cutting down of a Pitch Pine tree on the bluff? MR. RETUS: That is correct which we intend to do. BOARD MEMBER WEISMAN: You intend to do that? But leave, of course, the stump and the roots in place. Just want to make sure you're aware of that. MR. RETUS: Merry had actually did some research and from what she read that would be the proper thing to do so the wind doesn't grab the tree. BOARD MEMBER WEISMAN: I see. So it doesn't 2 3 4 5 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 139 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 affect the view particularly. So you're just concerned about it. MRS. RETUS: No, it's a dead tree but I didn't want to take issue with it. BOARD MEMBER OLIVA: If the wind whips up and it rips it out, it's going to rip out a lot of your bluff. MRS. RETUS: That's why we were glad to see it taken down. BOARD MEMBER WEISMAN: Your survey doesn't show, unless I have the site plan here which I'm not finding location of dry wells. I presume that's not a problem. It's going to drain as per code anyway. MR. RETUS: Right. BOARD MEMBER WEISMAN: Generally a survey will propose where dry wells will be located. I presume you have no problem referencing -- if we reference in our decision -- MR. RETUS: Not at all, please do. BOARD MEMBER WEISMAN: -- for roof runoff. Okay. No more questions. CHAIRMAN DINIZIO: I don't know that we would want to see that before hand before we make our decision. Is there a possibility that you can just draw dry wells on a plan? MRS. RETUS: It was given to the Building Department. BOARD MEMBER WEISMAN: They have one with dry wells on? MR. RETUS: The Trustees required it and then we went. CHAIRMAN DINIZIO: Can you just give us a copy of that survey. Send it over, we'll have it. MRS. RETUS: Okay. MR. RETUS: Let me just, if you don't mind me taking a look. BOARD MEMBER WEISMAN: We don't have anything with dry wells, I know we don't. MR. RETUS: Is yours dated August 2, 2006? BOARD MEMBER WEISMAN: Yes, it is but there's no dry wells. MRS. RETUS: I can go right over. BOARD ASSISTANT KOWALSKI: This is November 28, '06. MR. RETUS: Merry can pick that up tomorrow. CHAIRMAN DINIZIO: Okay. So if you can get that to us, that would be a help. We'll have all 4 5 6 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 140 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 6 our ducks in a row before we make our decision. It'll just be as per code. So whatever the Building Department wants to give you. MR. RETUS: Very good. CHAIRMAN DINIZIO: Does anybody else have any questions. Anybody from the audience would like to make a comment concerning this application. Hearing none, I'll entertain a motion to close this hearing until the 12th. (See minutes for resolution.) ************************************* 2 3 4 5 7 9 Hearing #5826 - Cingular at EM CHAIRMAN DINIZIO: What's next? Cingular. Who's is this? BOARD MEMBER WEISMAN: This is mine. For the record, I'm going to read the legal notice into the record. "Request for a Special Exception under Sections 280-69 and 280-70, concerning installation of a proposed public utility wireless telecommunications facility at the premises by affixing wireless telecommunications antennas within an approved pole to be built, and to install related equipment as required, at 9245 Route 25, East Marion." CHAIRMAN DINIZIO: Okay. Who's going to speak first? Just say your name for the record, please. MR. RE: Sure. Good afternoon, Chairman Dinizio, Members of the Board. Appearing for the applicant, Lawrence Re of Mundley, Meade, Neilson, Re, (phonetic) 36 North New York Avenue, Huntington. This is an application brought by Cingular to permit it to install antennas in the pole that as already been approved and a building permit has already been issued for the pole. Cingular, as the Board is aware is licensed by the FCC to provide personal wireless service facilities here in Suffolk County and throughout much of the United States. Cingular strives to provide reliable service throughout it's license coverage area and there is a service deficiency in the vicinity of the proposed site. This would enable Cingular to eliminate the service deficiency. Cingular is aware that the Town of Southold is concerned about the proliferation of monopoles and towers throughout the Town. It has also studied the Town code as it relates to the placement of facilities and the Town code is quite 8 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 141 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 thorough and quite specific in that it specifically states that one of the purposes of the code is to minimize visual impact and it also states in Section 280-67 that facilities are preferred on existing structures rather than new towers. With that in mind, the application today is to allow us to install antennas within an approved pole. We'll have virtually no visually impact. The only physical addition would be the installation of some cabinets. They will be a in a fenced in area and then surrounded by 7 foot Evergreens. There will be virtually no visual impact of this facility. At the same time, it enables Cingular to provide service to the area. As the Board is probably aware, the telecommunications act of in 1996 preempts local government from regulating the placement of these facilities on the basis of the emissions of the site so long as we comply with FCC standards. We do comply. We'll be many, many times less then the FCC standard for emissions. I have a number of documents I'd like to submit to the Board and then I'll proceed. I have a copy of the findings of the Zoning Board of Appeals dated March 9th approving the fire districts pole and the building permit. Actually, why don't I read off what I'll hand in and then I'll come up once rather then run back and forth. I have the affidavit of our radio frequency engineer with his maps showing the coverage area. I have the planning and zoning analysis of Frudin, Thaw and Elkowitz (phonetic) relating to the proposal. The Synetics Corporation report which addresses compliance with the FCC emissions standard and also the report of our appraiser, Michael Lynch, attesting to the fact that the inclusion of the antennas within the pole would not have an affect on property value. So collectively if I can hand this up to Linda. I'll try to abbreviate our presentation. I've been before the Board on a number of occasions with respect to applications similar to this and I have a number of witnesses here. But rather than call each one up, I'll just name who is here and then if you have specific questions that relate to their area of expertise, I'll be happy to call them up. I would like to call, however, my professional engineer who will describe the layout in a little more detail so 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 142 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 that you can have a better idea of the proposal as it relates to the property in question. Why don't I do that, John Stevens is a licensed professional engineer in the firm Infinergy. His firm prepared the plans and if you could put a copy up on the easel and then identify yourself. MR. STEVENS: John Stevens, Infinergy Engineering, 300 Great Oaks Boulevard, Albany, New York. MR. RE: Mr. Stevens, you put the copy of the site plan on the board. If you could, in a general way, describe our proposal, the antennas is in the pole and the equipment cabinets. MR. STEVENS: Yes, the approved poles are 110 feet tall. The Cingular antennas will be located within the pole itself, inside the pole casing. There will be three antennas located roughly at the top again inside the pole. At the base of the 110 foot approved pole are the cabinets. The cabinets are located roughly around the base of the pole. There are seven cabinets. The cabinets are being surrounded by a black vinyl coated chain link fence. The site will be served by underground power. MR. RE: Okay. Thank you, Mr. Stevens. Does anyone have any questions of Mr. Stevens specifically? BOARD MEMBER WEISMAN: This is all as per site plan approval, the planning board? MR. RE: We've been working with the planning board. We've gone through work sessions and they've written a memorandum that they are happy with the present location. BOARD MEMBER WEISMAN: I don't know if this is relevant to your application, are you aware of whether or not there will be other wireless antennas co-locating on this pole? MR. RE: I don't know whether immediately there will be but I would imagine, I know that many of the other carries have deficiencies in East Marion and the pole is being erected in such a way that there will be room inside the pole for other antennas so that you won't have towers popping up allover East Marion. BOARD MEMBER WEISMAN: The only external antennas are the first responders, the fire department. MR. RE: That's correct. 3 4 5 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 143 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 BOARD MEMBER WEISMAN: One located directly at the top, the other somewhat down towards the base. MR. RE: Correct. BOARD MEMBER OLIVA: How much of an area will this cover? MR. RE: The maps that I just submitted actually show it. It runs generally -- why don't I get the larger map and I'll have the witness describe. Mr. Hussein. BOARD MEMBER WEISMAN: A propagation map? MR. RE: Yes, it's a propagation map. BOARD MEMBER WEISMAN: This is your radio frequency engineer? MR. RE: Yes, the next individual is. Mr. Hussein, why don't you give your name and address for the Board. MR. HUSSEIN: My name is Sahed Hussein, on behalf of the client. 1717 Route 289, Fairlawn, New Jersey. MR. RE: And you're familiar with Cingular's network here in the Town of Southold? MR. HUSSEIN: Yes, I am. MR. RE: Have you prepared a map that shows the reliable coverage within the vicinity of East Marion and going west towards Greenport? MR. HUSSEIN: Yes, I have. MR. RE: And the map that's presently before the board and I've given the Board a miniature copy, the areas that are green represent the area of reliable coverage. Most areas that are not colored in are areas that are less reliable? MR. HUSSEIN: Correct. MR. RE: Now, if you turn to the next map, what does the circle represent. MR. HUSSEIN: It represents the area we will get coverage from our proposed site. MR. RE: So it makes the coverage with the green board with the coverage that's being afforded by the fire district. MR. HUSSEIN: Correct. MR. RE: So that pretty much shows how that splits up. CHAIRMAN DINIZIO: That fills in this space? No other towers would be needed? MR. RE: From this area -- from here all the way out to here, the coverage will be reliable to Cingular. 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 144 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 CHAIRMAN DINIZIO: Now, you are on the highest point of each of those towers? MR. RE: Yes, I believe so, yes. CHAIRMAN DINIZIO: You are. Now, if you had to go down lower, like 20 feet in separation, would that map look about the same? MR. RE: The higher you are, then the broader the area. CHAIRMAN DINIZIO: Considerably. MR. REY: Well, I don't know considerable. Sort of a touchy area. It would be noticeable on the map. CHAIRMAN DINIZIO: What I'm getting at is, the next guy that comes in, may need another tower? MR. RE: Well I guess we're getting ahead of ourselves but, we're only occupying a small area at the top with these antennas so that the area immediately beneath us will be available to the next carrier. All things being equal, each carrier going down will have somewhat less coverage except for the fact there are some frequencies that transmit better. So, for example, Verizon transmits at a frequency that can cover a larger area? MR. HUSSEIN: I'm not familiar with Verizon because there have been so many changes going on but for Cingular, for example, we have two lines with 850 megahertz (phonetic) for a total of about 1900 megahertz. A general rule of thumb, the lower the frequency, it travels much higher. So anybody who has that has for our case 850 megahertz, will have a little bit better coverage as opposed 1900 that gets more diminished of the coverage. The coverage of the footprint is much smaller. So the higher the frequency gets poorer coverage. The lower, better the coverage. CHAIRMAN DINIZIO: Anybody have any questions for this gentleman? Ruth? Michael? Leslie? BOARD MEMBER WEISMAN: Well, I suspect the contact in this particular application -- CHAIRMAN DINIZIO: Let's hear all the information. BOARD MEMBER SIMON: I have a technical question. Did you say higher has greater coverage? MR. HUSSEIN: Less. BOARD MEMBER SIMON: And why is that? 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 145 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 MR. HUSSEIN: Just a general nature of the frequency. BOARD MEMBER SIMON: I was looking at the physics of it. I thought higher frequency meant higher energy? MR. HUSSEIN: Right but the higher frequency gets distorted very easily. It does travel much lesser distance. The signal gets distorted much easier at the higher frequency as opposed to the lower frequency. It accommodates much more information as far as that. BOARD MEMBER SIMON: Is that because -- well, higher frequency means shorter wavelength. And the shorter wavelengths are more subject to distortion? MR. HUSSEIN: Correct. MR. RE: Rather than hand in the large map, we submitted the smaller one. CHAIRMAN DINIZIO: I would like to have that for the Town at some point in time. I mean if you guys want it for the hearing -- MR. RE: We can take the clips off. CHAIRMAN DINIZIO: Great. That would be good. MR. RE: While Mr. Hussein is doing that, the other witnesses who are present this afternoon are Michael Lynch, the appraiser, Jimmy Wallace, East Marion Fire District, the planning expert and Lou Cornacchia of Synetics (phonetic) who prepared the FCC emissions compliance report. If the Board has any specific questions of any of the witnesses, I'd be happy to bring them up. In summary, the planning expert has prepared a report stating that this will have no detrimental effect on the surrounding area. Mr. Lynch's report states that it would not diminish property values and Mr. Cornacchia explains how he determined that the site would comply with FCC standards. If the Board does have questions. I'd be happy to bring them up. CHAIRMAN DINIZIO: I'd like to hear the property values, if you don't mind. MR. RE: Okay. Mr. Lynch? MR. LYNCH: Good afternoon. My name is Michael Lynch, I'm a State Certified Real Estate Appraiser with offices on 15 Dewey Street in Huntington. The application here is for antennas that will be completely concealed and out of sight. The only part of the application where any 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 146 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 of the apparatus will be visable is the ground equipment and that will be shielded with 7 foot Red Cedars. As far as the application, this is one of the better applications that I've worked on in that the antennas themselves will be completely concealed, they'll be out of sight. It's very similar to other applications I've had in the Town of Southold with respect to church steeples where we've got an existing structure or soon to be an existing structure that was recently approved and we're locating within that particular structure to minimize any visual aesthetics that there may be. In this case, of course, we're going within a recently approved structure. So there will not be any adverse effect to surrounding property values. I've outlined in my report several studies which are, in fact, when compared to this extreme examples in those particular studies, they're all exposed antennas whether they be on existing water tanks or roof tops or lattice towers across Nassau and Suffolk Counties. In this particular case, again, the antennas themselves will be completely concealed and there will be no adverse effect to the community. BOARD MEMBER SIMON: May I ask you a question? It's interesting. You're on expert on real estate appraisal and you're talking about the physical effect of this. Property values are a matter of human psychology. MR. LYNCH: That's correct. BOARD MEMBER SIMON: So what the objective facts are mayor may not be closely correlated with property values because property values depend on people's beliefs and perceptions. MR. LYNCH: Correct. BOARD MEMBER SIMON: Do you have information, for example -- let's make it easier. When -- do you have information on when such things, unlike this one, would have a negative effect on property values? Is it when they are just simply lower or bigger or uglier? MR. LYNCH: I really didn't leave anything to chance. I'm basing my conclusion on studies that I carried out before and after studies of new structures, exposed antennas that went up in a particular neighbor and I looked at a sample of sales prior to the installation of those antennas and then a sample subsequent to see if there was 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 147 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 any effect taking in account the overall appreciation or depreciation that may have occurred in that community. What I found was that adjusting for such things as appreciation, that there was no effect of surrounding property values. Again in this case -- those are extreme examples where it may have been a new structure application such as a new monopole. In this case, we're going in a recently approved structure that will be completely concealed. But I based my conclusion on studies where we had either roof top applications where the antennas were exposed to the surrounding community and I did a before and after study. BOARD MEMBER SIMON: Are any of those studies published? Not by you, necessarily but is there a literature on this to put a correlation between changes in property values and physical changes which are made by -- MR. LYNCH: As far as I know across the US, I haven't seen any studies that have conclusively shown that the presence of wireless facilities, such as what we're proposed, has resulted in any devaluation to surrounding property values. But again I stuck to Long Island with respect to my studies. CHAIRMAN DINIZIO: Okay, Michael? BOARD MEMBER SIMON: Yes. CHAIRMAN DINIZIO: Anybody else have questions of this gentleman? (Audience member stands up.) CHAIRMAN DINIZIO: We'll we want to hear all their testimony first and then we'll hear your comments. MR. RE: One aspect of our application that I haven't mentioned yet is the fact that recent statistics show that anywhere between 40% and 50% of calls placed to 911 come from mobile telephones so that they've become a major part of the safety network of the community. To address that in a little more detail, I'd like to ask Mr. Boyd who represents the fire district to speak on that issue briefly. Mr. Boyd? MR. BOYD: Chairman and Members of the Board, Edward Boyd, Southold, New York. I represent the East Marion fire district. It goes without saying that we have in favor of this application and we support it wholeheartedly. 911 communications are 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 148 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 very, very important. The area that we're talking about here, like many of the places along the Sound, very often result in a 911 communication going to a Connecticut antenna. And that puts in a considerable delay. The call is received in Connecticut and then it's routed back to the PSAP, public service answering point here in Southold, which is the dispatch vehicle for all of the fire departments on the North Fork. So anything that can be done to cut down on that delay and to make 911 a more viable means of accessing emergency assistance for the population is something that we very much support. The fire district, for that reason, is fully behind application to co-locate on this tower. CHAIRMAN DINIZIO: Okay. Do you have a question? BOARD MEMBER WEISMAN: Yes. CHAIRMAN DINIZIO: Go ahead. BOARD MEMBER WEISMAN: Yes. I've heard many people testify that a lot of the emergency calls, the 911 calls come from cell phones. To what extent are there written research studies and to what extent is this undocumented anecdotal evidence? MR. BOYD: There are written research studies that I cannot cite at that particular time because I don't have them. But I have seen them. I have read them. Perhaps Mr. Re would have the actual figures on that. He just cited a statistic of fairly recent nature. I read a great deal in the way of fire service magazines which have all sorts of information coming in and I have to admit I can't immediately draw up in my mind one of these. Mr. Re probably has through his business. BOARD MEMBER WEISMAN: Okay. Perhaps we can hear from him. MR. RE: I don't have the study with me, however, I'd be happy to ask my client to provide one and I could send it to the Board. I've read articles and I've read materials that have given us that number. I just don't have it with materials today. BOARD MEMBER WEISMAN: That would be very helpful. CHAIRMAN DINIZIO: Anything else? You want to ask more questions? BOARD MEMBER WEISMAN: I do have two more. 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 149 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 CHAIRMAN DINZIO: Okay. Go ahead. 3 BOARD MEMBER WEISMAN: Actually, probably for the RF engineer. For the record, just so we understand, I want to be clear that on that propagation map, the coverage goes from the boundary of the Hamlet of Greenport -- it looked like it was but I wasn't sure where, so I want to clarify -- all to way to almost Orient Point. MR. RE: No. BOARD MEMBER WEISMAN: Where does it stop? Was it the causeway, the Orient Fire? MR. RE: It's beyond the causeway. BOARD MEMBER WEISMAN: So it overlaps with the Orient Fire Department? MR. RE: Yes, it overlaps with Orient Fire. BOARD MEMBER WEISMAN: Okay, I see it. That's one question. The final question I have is a technical one. This tower is not built yet. It's approved but it's not built yet. MR. RE: Yes, the building permit was issued and I understand construction is scheduled to commence next week. BOARD MEMBER WEISMAN: For the record, whatever your appropriate expert witness is, I'd like to understand when a tower is built and someone, a wireless service is about to co-locate, how, structurally, does that take place? What happens in the way of inserting it into this -- how does that happen? I think the neighbors would be rather interested in understanding whether equipment has to come in. What kind of disruption goes on? MR. RE: Right. Mr. Stevens would be able to answer that. MR. STEVENS: Again, I'm John Stevens. Once the pole is constructed and you get a subsequent applicant, a wireless carrier, that wants to install their antennas, after all the different paperwork is signed up, practically speaking what then happens is, a crane shows up. Usually takes one to two days. Lifts the antennas up. The panels are removed from the pole itself and the antennas are put in inside. The cable is then snaked down through the pole to the bottom where the cabinets are then placed. So the crane is there usually one day, sometimes up to two days just to get the antennas up. The panels are then reattached to the 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 150 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 pole because the antennas are then inside. The work then finishes up on the ground. Takes one to two weeks on the ground to put the cabinets on, some concrete pads and to run the power and te1co to the cabinets. BOARD MEMBER WEISMAN: Thank you. CHAIRMAN DINIZIO: Okay. We should also hear from the -- about the guidelines. MR. RE: Sure. Mr. Cornacchia? Okay. State your name and address. MR. CORNACCHIA: Certainly. My name Lou Cornacchia, C-O-R-N-A-C-C-H-I-A. MR. RE: Mr. Cornacchia, could you briefly describe your professional background? MR. CORNACCHIA: Certainly. I'm a degreed electronic engineer, graduate of Manhattan College School of Engineering. I've worked with the defense industry for about 30 years working on microwave systems, recognizance systems, counter measure systems and I've worked for about 12 years now providing FCC compliance studies and propagation measurements in the field. MR. RE: And you've testified before this Board in that capacity in the past? MR. CORNACCHIA: Yes, I have. MR. RE: With regard to this proposal, have you studied the proposed antennas that Cingular request this Board to approve and be installed inside the fire districts pole? MR. CORNACCHIA: Yes, I have. MR. RE: And did you compare the emissions that would be anticipated through the antennas with the FCC standards? MR. CORNACCHIA: I did. MR. RE: And could you describe how you conducted your study and what the results were? MR. CORNACCHIA: Certainly. What we did was, we examined the proposed installation and the proposed application by the wireless industry and also the model of the antennas, the proposed transmitted output power, number of channels, frequency at which they would be broadcasting at and the elevations of the antennas. We also examined the police antenna proposed installations, the elevations, frequencies, again the power levels and the center lines or the elevations of the antennas as it relates to ground. We did individual analysis for each of the 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 151 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 antennas and determined the impact in terms of emissions that could occur. Worse case criteria applied in accordance with the FCC OET manual which predicted highest possible emissions but will never occur. In fact, the emissions that do occur are usually ten to hundred times less then what we predict. We then compared the emissions to the permitted exposure levels that the FCC has mandated as a criteria. We added the percentages of the emissions of each of the individual transmitted signals and totaled them. Our result, the total emissions are less than 1% of the permitted exposure levels. MR. RE: That would be cumulative? The fire department -- MR. CORNACCHIA: Cumulative. Three fire departments and the Cingular antenna and three sectors broadcasting circularly throughout the community. We did measurements, I should say we did analyses both at the base of the approved tower to a distance of 2000 feet and we selected the nearest building, fire department building, nearest homes and other nearby homes in the East Marion community. The results were far, far lower than might seem to be but we are extremely low and we are in compliance with the FCC standards. CHAIRMAN DINIZIO: And you will remain so, right? MR. CORNACCHIA: Yes. They will. CHAIRMAN DINIZIO: These emissions, are they constant? MR. CORNACCHIA: We assume the emissions to be transmitting 24 hours a day, 365 days a year, continuously. The standards are continuous standards, by the way. CHAIRMAN DINIZIO: It's a continuous RF signal that leaves that tower constantly? MR. CORNACCHIA: Yes. We assume they are. CHAIRMAN DINIZIO: And you modulate accordingly by -- MR. CORNACCHIA: On and off. We assume they're not. We assume they're constant even though the fire department is not transmitting continuously, we assume they are in all directions evenly distributed. CHAIRMAN DINIZIO: I think there was concern when this tower was being before us before as fire department about emissions and constant emissions. 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 152 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 We had testimony from a neighbor that was concerned about that. MR. CORNACCHIA: Well, you know, there are other sources of RF, fire department, antennas on trucks, police department antennas, baby monitors that are used in the horne, leakage from the microwave oven, other RF devices that can be found in the community, taxi cab two-way radios that use whip antennas, automatic door openers in department stores and so on. So we're always engaged in interfacing with RF devices, in our communities, in our homes, in public places. And in all instances, we are always within the permitted exposure levels. But this isn't the only source of emission and since it is, in this case, being proposed, and if it were installed, the emissions would be far less than what you might encounter in the horne, from a microwave oven or a cordless phone in your home? Which is a wireless based station, essentially. CHAIRMAN DINIZIO: Are are you saying the emission would be lower than a 900 megahertz phone? MR. CORNACCHIA: Yes. A 900 megahertz phone can transmit up to 30 microwatts per centimeter squared at the base station. Now, it's not always on. But when it gets turned on, it's on. CHAIRMAN DINIZIO: Right. But if you're talking on it, it's going to be on? MR. CORNACCHIA: Yes. CHAIRMAN DINIZIO: Anybody else have any questions? BOARD MEMBER WEISMAN: Well, the expert is here. This is now Cingular. So when Verizon comes in, what would the cumulative effect be with each new carrier that co-locates? Can you predict that? MR. CORNACCHIA: I was going to suggest that if you duplicated this proposed installation with fire department and with the proposed carrier and duplicated it, you'd still be well within the permitted exposure levels by far. Still below 3% of the 100% permitted. MR. RE: I've represented applications where all the companies get together and propose a brand new traditional monopole. I've read the reports of the FCC emission standards compliance and in most cases, they're still considerably low, 2-3%. Now, of course, under your code, if there were to 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 153 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 be co-locators, they would have to come before you and they would have to submit reports such as this so you can be assured that they would be compliant. MR. CORNACCHIA: We clearly state that in our report, by the way. It's an FCC requirement. CHAIRMAN DINIZIO: Anybody else? Ruth? BOARD MEMBER OLIVA: No. CHAIRMAN DINIZIO: Michael? BOARD MEMBER SIMON: No. CHAIRMAN DINIZIO: I think that's all we have unless you have something more to add? MR. RE: No. I think that's it. I think that in reviewing the code provisions with respect to these types of applications, we're fully compliant with all of the code provisions that relate to sites like this. I think the code was written with a view toward minimizing visual impact and a view toward co-location and I think we're fully compliant. CHAIRMAN DINIZIO: Thank you very much. With that, I'm going to ask for comments from the audience. Is there anybody in the audience that would like to speak for or against this application? 3 4 5 7 8 9 10 11 12 e 13 14 15 MR. BOYD: I was going to say something in favor of it wearing another hat. As president of the Southold Town Fire Chief's Council, not all of our volunteers fire fighters are yet equipped with two-way portable radios and we find that the cellular telephone is still a very, very important means of communication among ourselves as opposed to communicating back to the day station. It helps a great deal in deciding who's going to go and get a truck or who's going to go directly to the scene or something like that. And until the financial status of all the districts gets to a point where it allows the universal use of two-way radios by the fire fighters, the cellular telephone as become a very, very important type of thing and anything we can do to improve the efficiency of the cellular telephone is something that we're very much in favor of. This seems to fill a gap in the area between Greenport and Orient that is a difficult place to deal with. What I mentioned before about calls going to Connecticut is a continuing problem. This tower, 16 17 18 19 20 21 22 23 24 e 25 154 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 5 the antenna placement on this tower would be a big help there as well. CHAIRMAN DINIZIO: Okay, sir? Just state your name and your address, please. MR. LEKAKIS: Sure. My name is Artemis Lekakis. My address is 1367 Ovington Avenue in Brooklyn, New York. My family owns property that is 89 feet from the proposed cell phone tower based on the map that was provided to us by Cingular's counsel. I have assembled some documents for the Board. May I approach the Board? CHAIRMAN DINIZIO: Certainly. MR. LEKAKIS: Thank you, Chairman. Mr. Chairman, just touching on the topics and Members of the Board, I thank you for listening to public comments at this time. Just to let you know the topics that Cingular's counsel spoke about with his experts. CHAIRMAN DINIZIO: Sir, can I just ask you one question? MR. LEKAKIS: Certainly. CHAIRMAN DINIZIO: Do you work in the industry? Are you a radio frequency technician? Any area of expertise? MR. LEKAKIS: I have no expertise at all. CHAIRMAN DINIZIO: Okay. I just wanted to get that on the floor. MR. LEKAKIS: But we'll get to that. As far as I can tell, there were three main topics that the Board was concerned about with Cingular's application. Number 1 was emissions, 2 was property values and 3 was fire fighter and fire fighter response. Just touching on the basis of emissions quickly. The submissions that I just handed to the Chairman contains numerous articles over the past 7 to 10 years which indicate that the emissions from cell phone towers are not as beneficial as Cingular would have you believe. There's articles in there that detail the effects on pregnant women; increased miscarriages, brain tumors in children, loss of sperm cell count in men and various other health ailments that have been directly related to constant exposure of the radiation of the type that comes from cell phones and cell phone towers. These emissions are 24 hours a day, 7 days a week just like Cingular's expert just told you. You cannot turn it off. One of the concerns that I have about the community 3 4 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 155 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 even though I don't live here is that once it's going up, we won't know what the effects of this will be until 20 years from now and it will not come down during that time. The other concern that I have is something that the Board touched upon which is there will be a cumulative effect. While Cingular's tower may be below the FCC's emissions standards, it is the first of many. Once you allow Cingular in there, there will be no bases upon which to deny other cell phone carriers. When that tower, when that fire fighter pole is full of cell phone towers, the cumulative effect will be much greater than what it might be with just Cingular in there. CHAIRMAN DINIZIO: Sir, can I ask you a question? Is it your opinion that it will be more than the standard that's set forth by the FCC? MR. LEKAKIS: That's an excellent question, Chairman. I cannot contradict Cingular's expert's testimony that the FCC standards will not be complied with. However, based on articles that I've just handed to the Chairman and to the Board, those standards were developed upon information first considered in 1985 before studies about the effects of the emissions. Other industrialized nations have standards that are up to 10,000 times lower. So if it's up 1%, that tower still can be built in China or England or Sweden or other industrialized nations with lower emissions standards. The next big concern and the big topic that the Board considered was property values. Cingular found an appraiser who would say cell phone towers do not affect property values. People forget about them. They don't know. Based on the reading that I've done and information presented in the package that I gave to the Chairman, that's simply not true. The studies and the reports in the package that I gave to the Chairman indicate that property values go down anywhere from 2% to 40%. Will Cingular compensate all its neighbors for the 40% loss of property values caused by this antenna? If people want to move because they're getting headaches and they can't sleep and they can't function, will Cingular pay them the difference that their house could have gotten before they got sink? These are things that I believe the Board can consider. While the 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 156 . 1 ZONING BOARD OF APPEALS JUNE 28,2007 2 6 Board cannot consider emissions, it can consider the effects of those emissions on people and the effects of those emissions on property values and make its determination accordingly. The next topic was firefighters and we had a representative from the East Mario firefighter's department who said there's a delay caused by calls that are going to Connecticut and then come back to 911 here. That delay might be a second or two or maybe five seconds or ten seconds at the most but in the materials that I gave to the Chairman, the International Association of Firefighters three years ago asked for a moratorium on cell phone towers to be built on firehouses because of the cognitive disruptive effects it would have on firefighters. As a result, they found firefighters with headaches. Firefighters who couldn't think straight. Firefighters who couldn't respond quickly. Firefighters who could not do their job because they were exposed to this radiation and no one is closer than the firefighters. They were exposed to this radiation every single day, 24 hours a day for as long as they volunteered there. A ten second delay by having a call go to Connecticut, I think, is a small price to pay to have healthy firefighters who can serve the community properly. Of course I have a personal interest in coming here. The property that my family owns is 89 feet from the proposed tower, 89 feet. There are studies in the material that I gave to the Chairman and the Board that a cell tower within a 1000 foot radius is dangerous, 300 meters; 89 feet. And with respect to the appraiser, if it will help the Board, I can see if I can retain an appraiser who will contradict the conclusions arrived at by Cingular if the Board so chooses. Please let me know. I thank you very much for listening to my response to Cingular's application. CHAIRMAN DINIZIO: I want to thank you, sir, for the amount of information you gave us. I have some reading to do this weekend. Leslie, did you have any questions to ask this man? Mike? BOARD MEMBER WEISMAN: Well, I also appreciate the substance of your presentation and your concerns and our job is to balance, as you well know, all of the information we have 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 157 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 available taken through public testimony. BOARD MEMBER SIMON: I have a question. you have information on other communities elsewhere in the country who have pursued the line of inquiry that you have been presenting with to and fro from the cell phone people and the people who are concerned about the effects? What's the record on this issue? MR. LEKAKIS: It's interesting. One of the studies that I gave you in the materials shows that, basically, the research, if you look at all the research out there, it's 50/50. Fifty percent of the research says cell phones have deleterious effects and 50% of the research says that cell phones don't have deleterious effects. And then there's a but. However, if you look at the research that finds that cell phone towers and cell phone radiations do not have a deleterious effect, the vast majority of that research, nearly 80%, is sponsored by did the cell phone industry. If you take out the studies that are sponsored by did the cell phone industry, then the landscape changes and the emissions question becomes more clear when it's purely independent research. That research would show approximately 75% to 80% would find that there would be deleterious effects and also 20% to 25% would find that there would be no deleterious effects. Another interesting phenomenon that I found in my research was -- MR. RE: Excuse me, Mr. Chairman. I know it's impolite to interrupt, but my point would be and I've been kind of patient in listening, I would object to permitting testimony by an invidual who has stated that he has no expertise at all in this field, from providing the Board with information when the Board is, I'm sure, aware that the telecommunications act says that all of the information he's providing is outside the scope of the Board's review of this application. CHAIRMAN DINIZIO: Sir, I would agree with However, I think we're going to take care of I just would like -- if a guy lives 89 feet Do 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 you. that. away 24 MR. RE: It's actually 105 feet. MR. LEKAKIS: No, that's not accurate. It's 105 minus 15; the width of the fenced area. CHAIRMAN DINIZIO: Hold on. We have to . 25 158 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 consider the community because we live here and I'm going to give everybody who has concern an opportunity, okay. You heard me ask that question about if he's an expert or not. I'm going to take that into consideration. Am I going to read that whole thing? Probably not, but I'm going to look at it. But at the end of this hearing, I'm going to ask you to comply with the rest of the rules that we have here and perhaps that will help everybody here sitting in this room. He didn't take too long. MR. RE: No and I just wanted to make that point. CHAIRMAN DINIZIO: If we could just let him have his say and anyone else who has concerns. If the thing is on 24 hours a day, I want to get that out. MR. LEKAKIS: Mr. Chairman, thank you so much for your consideration. Continuing with the response to the Board's question, the majority of the research would indicate, the independently funded research, that there is a deleterious affect from cell phones. Also interestingly in the materials that I provided to you -- and I understand it's a voluminous amount of materials but if Mr. Chairman or any other interested Members of the Board would like to look at the materials, I've prepared an appendix with a list of all the materials organized by category and there's a thumb index alphabetized in numerical order, so you can turn to the article you find of interest. There where are six articles that I found written in the last two years an analogizing the cell phone industry to big tobacco at the turn of the century. Those articles said do you remember the 1920's advertisements by big tobacco in which big tobacco would have a doctor smoking and tell you how good it is to smoke and we all know how that turned out. Those articles expressed a concern by some independent researchers who feel that this, the cell phone industry and the emissions question, will be resolved in the same way. I understand the limitations on the Boards authority particularly of the emissions question. But I don't believe that you have a limitation in terms of property values and the safety of the community. Those are two issues that I believe are addressed in my presentation and the materials 4 5 6 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 159 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 that I provided that should seriously factor into the Board's consideration of a decision. Particularly in view of the fact that when there's one, there will be more. CHAIRMAN DINIZIO: Okay. Anybody else have a question for this gentleman? BOARD MEMBER SIMON: I would like to make a comment on that. I appreciate your answers. Whether the industry has said -- ideological commitment to one particular side is well known that people who oppose it also have, some of them, have their own ideological commitment. The problem is not a matter of weighing the articles but we do the best we can. I do have some background experience in this. If you can look to see whether there are certain referee journals, blue ribbon committees and so forth, whether the National Academy of Sciences, for example, has done some of these reports or whether they are done by environmental activists groups which suffer from the same problems that industry groups do. So can you give us any of guidance, perhaps there is in these materials, things which look to be less likely to be contaminated or biased by prior interests in the project. I did notice there was an article in Lampsit (phonetic) which is the British equivalent of the American Medical Association Journal. That sort of thing or is there anything in that particular list of articles which could be identified as probably more reliable to the layperson than something from one side or the other side? MR. LEKAKIS: Board Member Simon, that's an excellent question. I tried to edit out the materials that were patently agenda driven. The articles that I included in my appendix, there's articles in there from the University of North Carolina at Chapel Hill, University of Hawaii. I believe there's also one from -- I'm not sure if University of Michigan. Universities in Sweden, Spain, Germany and England. Lots of academic reports. I tried to focus on the objective materials because the agenda driven materials, one, have no value whatsoever and two, are pretty much written in a strident tone that makes them very hard to deal with. So I wanted to get something that got to the core of the matter. Those were the materials that I found. So I 3 4 5 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 160 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 wanted also to give the Board something with propative value rather than specious arguments. For example, if the Board is interested in a contradictory appraisers report to supplement the articles and reports that I have in the materials that I provided you about appraisals where property values go down 40% in certain neighborhoods, I'd be happy to try to get that for you. BOARD MEMBER WEISMAN: I have a comment. I have a number of concerns as a public official about making appropriate decisions on behalf of the community that address two things. One is the clear and imperative need that our whole North Fork has for first responder communication. Effective, up-to-date, life safety communication. I believe we can separate, I understand, which is why I asked for documents rather than anecdotal evidence of dependence on cell phones relative to first responders 911 calls. I'm an academic and I understand research. I have been gathering myself and doing my own research on this because we have increasing demands, understandably, from the Point all the way to Laurel and we'll have continuous demands for both emergency equipment update and wireless communication. Our community is dependent upon the use of cell phones. It's frustrating when you hit a dead zone and we all know that but there are these other concerns that need to be addressed as well. It's because of that that I've also been proactive in attempting to find experts. I'm no expert. I have a file myself that thick and I intend to read every article you've submitted as well as every piece of evidence that Cingular submits. But bear in mind that interpretation requires a certain level of expertise as well. So in part, this Board has to count upon the testimony of experts as well as our own ability to interpret expert's research documents. So the Board has been examining findings independent of experts expertise and I believe that our Chairman will at the appropriate time address that because we have both individual applications on a one on one basis which then have to be evaluated. Then we also have the big picture which is as each one comes in, one thing separate from another, how do they cascade? How do they overlap? What are the cumulative consequences of all of these towers 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 161 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 proliferating almost always because of our code which is to locate on municipal property, frequently on scenic byways. So we have a kind of cacophony of problems to deal with. To the best of our ability, we want to do right by the community and face the realities of 21st century technology. So I appreciate very much your information as I do the presentations made by the experts at Cingular and Mr. Boyd. Just please understand that this Board is attempting to educate itself and find the expertise that has no particular commitment to any side, has no vested interest whatsoever other than an interpretation of the most current research available so that we can guide our decision in a way that's completely free of self-interest. Whether it be the public's interest or the fire department's interest or the wireless. MR. LEKAKIS: Please don't misunderstand me to say that a cell phone tower isn't needed or that there aren't benefits to the community. That is not what I'm saying. I think the purpose of my submission and my coming here today is that while a cell phone tower will be useful to the community in certain respects, to put it in the middle of a populated area -- Mr. Re said that my property is 105 feet. Well, the little square fenced in area is 16 feet wide. His map measures 105 feet to the far end. So the close end of it is 89 feet from my property. That's how I came up with that. I'm 89 feet away. Cheryl and Joe are 150 feet away. The Cothalis family is 170 feet away of 24 hour, 365 day a week radiation. There's a reason why these things are often located on scenic byways. No one lives right under them all the time. They can be incorporated in a lamp fixture or something else. So maybe while the cell phone tower could be incorporated into the community or the Town of Southold or one of the adjoining towns, maybe another site in a less densely populated area that wouldn't engender any of these potential health risks might be more appropriate. That's all I'm saying. I think it would be. Because if you put it on a highway, the highway's property value is not going to go down. If you put it on a highway, it's not going to effect the firefighters ability to think and give them headaches and God knows what else 5 to 10 years from now. It's not going to cause potentially and God forbid an increase in 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 162 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 miscarriages or brain tumors or all these other things that it's reputed to cause. If you put it in a somewhat more removed area, you get the benefits to the community without the burdens on the community. That is what myself and the other neighbors are advocating. There is a way to make everyone happy and we trust that the Board will make the right decisions to do that. BOARD MEMBER WEISMAN: Well, it's why we want to go to beyond the individual application at the Town Board level to begin to really look at a comprehensive master plan for the location of cell tower that will provide for our first responders needs and the safety of the community and also accomplish what you said. We don't want any more than is necessary but we don't want any less than is necessary. Examining an appropriate location and bringing our code up to date, perhaps changing it, is very, very important and I think we're going to see some movement in that direction on the Town Board level. MR. LEKAKIS: I also think examining that appropriate location and putting in a place where the benefits, burden analysis makes the most sense to the Board will enable the Board's future decisions to be much easier as well. When you have Verizon and T-Mobile and whoever else is going to come in here and you put 7 more cell phone towers in or 20 or 50 or whatever it's going to be, you don't have to worry about what effect it's going to have on your neighbors. It's just going to be there. It's just going to be on the highway and helping everyone. And that would be, I think preferential. CHAIRMAN DINIZIO: I'm a little confused about your term of "highway". Are you familiar with the area? MR. LEKAKIS: I'm sorry. I was a little -- she said the word byway so I meant to say byway. CHAIRMAN DINIZIO: Even byway. This is 100 feet away from the byway right now. You're suggesting that we put it on that. That's where it's going. MR. LEKAKIS: It's going on a, as far as I understand, a pole that's near a firehouse that's right next to a residential community. CHAIRMAN DINIZIO: The whole area is residential. All the way from Greenport line to 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 163 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 -- the only place that's commercial is a little deli that's a little bit further away. That's it. MR. LEKAKIS: Your point is well taken but I think there's areas that are somewhat less residential then others where there's not houses every 100 feet away from each other where this phone tower is going to go. And because the proposed reach of the cell phone tower is so large, moving a cell phone tower half a mile this way or one mile that way to an area where there's fewer people -- CHAIRMAN DINIZIO: Sir, I can't allow you to testify to that. You're not an expert at all in that area and quite honestly, we know a little more about that than you do. I suggest that you try to keep your comments to what you know because you obviously don't know the area. You may know your lot and I know that all those lots behind there, I believe are 2 acre lots or one acre lots. It's the least dense area of East Marion with the exception of a farm. Okay. Now people have to, when they build towers, have to have permission. We have to have someone willing to let these towers go where they need to have them go. Moving a tower, this tower in particular, a half mile any way skews the entire, you're going to necessitate the need for another tower. We already lowered the tower by 20 feet which makes that tower less effective and perhaps calls for need of another tower in that area at some point in time. So they can flip flop their, so Cingular's not on top of that one on the lower on. And I think that you're -- I appreciate all your comments but I think you went a little over the line by trying to tell us where to place this tower when you quite honestly don't have the expertise to say that. If you're saying not in my backyard, that's fine because I understand that. And you've said that a number of times. But the rest of it, sir, I think that you're not an expert that can testify to that extent. BOARD MEMBER WEISMAN: I agree with that but I also agree that neither are we. We do have experience with applications but we're not experts either. We're just making the point that we're in a position of evaluating one site specific application after another without understanding the full range of how they relate to each other. 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 164 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 It's like looking at tree, tree, tree and you don't see the forest. What we really need to understand at the Town Board level is a comprehensive planning approach. Meanwhile, we have an application before us and your testimony relative to it's very site specific context is very relevant as a property owner. I agree with Jim that beyond that, we can read all we want to but what we really need is to look at a strategy. A complete strategy. How high should they be? Where should they go? How many do we need? Those are other issues that are very critical to this community and it's well being. So right now we are addressing one application but I think you've raised important points and I don't think anyone would disagree. I don't think that the fire department would disagree with that. You really need to understand -- they have to communicate with each other from district to district. So there's a lot of issues here. CHAIRMAN DINIZIO: You're putting two different technologies in the same thing. BOARD MEMBER WEISMAN: I would like to separate those needs because I think they need to by analyzed that way. CHAIRMAN DINIZIO: You can't make a statement that the fire department needs to have a cellular phone. That's not the point. Their radio is not the subject of this. BOARD MEMBER WEISMAN: In simply saying in a comprehensive plan of critical importance to this community is the ability for the firefighters, at least, to talk to each other. That's one kind of communication. Wireless has a public utility is another kind of communication. CHAIRMAN DINIZIO: With that said, do you have anything else to add to this thing? MR. LEKAKIS: That's it, Mr. Chairman. I just want to thank the Board very much for giving me a very generous amount of time to speak and listening to my points. I know that you particularly and all the Board members have listened to my points very intently and I really appreciate the attention that you're giving to this matter. CHAIRMAN DINIZIO: I want to thank you very much all the work you did. BOARD ASSISTANT KOWALSKI: Would you like to 3 4 5 6 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 165 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 look at the maps in the file? I know you called yesterday. MR. LEKAKIS: We got stuck in traffic unfortunately. It's okay, thank you. CHAIRMAN DINIZIO: If you need copies, let us 3 4 know. 5 6 MR. LEKAKIS: Thank you. CHAIRMAN DINIZIO: Do you want to say anything? MR. RE: If I could. I have nothing but the utmost respect for the Board and I know the Board wants to do the right thing for the community, but I think the focus of the hearing seems to have shifted to the location of the pole and that already was reviewed, approved, building permit issued and our application is not the type of application that requires that type of study in that we're proposing to put the antennas in an existing pole which could have no visual impact on the community at all. So I think this application needs to be separated from the generic new tower application that mayor may not come in the future. This is an application to go inside an existing approved pole that will be going up beginning next week. With respect to the health effects, again, I respect Mr. Chairman, your desire to allow to community to express their concerns about that issue and I think it's a good thing. However, by law the Board is not supposed to engage in a study of that issue. If the Town or residents have concerns about the Federal standard, they should call their congressman, address it on a Federal level because it's not a local issue, it's a Federal issue. BOARD MEMBER SIMON: Excuse me. As I understand the Federal law which preempts local law is the law sensibly says that local laws cannot pass laws that are more stringent then the Federal law. MR. RE: Right. BOARD MEMBER SIMON: As I hear you talking, this suggests that non-expert citizens shouldn't really be participating in deciding these issues. And if you're saying that, I think you're mistaken. MR. RE: That's not my intent. My intent is to say that the Board should not own engage in it's own study based on materials that may be 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 166 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 presented by others as to whether the Federal standard is out of date. BOARD MEMBER SIMON: We're not talking about the Federal standard. We're talking about a local decision and we're getting input from anyone in the community and their representative who want to do this. We're not engaging in a study, we're holding a hearing. I'm sure you wouldn't say that we don't have a right to hold a hearing and hear the opinions and facts from people allover the place. Surely Federal law doesn't prohibit that. MR. RE: No, it doesn't. I think you and I agree. I think what I meant to say and perhaps I didn't express it clearly is that you certainly have a right to conduct a public hearing, the Chairman has stated that he would like to hear the concerns of the public. My objection would be if the Board were to intend to conduct it's own study to see if the Federal standard is correct because it's the Federal standard. I think reading studies of the health effects of radio frequency emissions by various agencies is not relevant to the application because we've shown that we comply with the Federal standard. Mr. Cornacchia came up and whispered in my ear, can I get back up there? I said, no. We can be here all day. He could address this at great length. He is the expert and that's not really the issue. The issue is whether we comply with the standards and we do many times over. Just for anecdotal notation, for instance, the Cold Spring Laboratories, which is one of the foremost scientific campuses in the United States where they have Nobel Prize winners who studied cancer. They have a cell tower right on their campus. Right outside the window of Dr. Watson. That sort of says something to me. Cell antennas are located on just about every hospital in Nassau and Suffolk Counties. So the people who know these things are not concerned. I'm starting to contradict my own statement before that we shouldn't get into those issues since the Federal government has already determined it. But I thought I would just mention that. CHAIRMAN DINIZIO: I understand where you're coming from. I know you know the standards. I worked in the industry myself. But we do have citizens that would like to address that subject. Now I understand and from my part, no. I believe 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 167 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 that if there's a Federal standard, they set the standard. We have to comply to it. I think no one on this Board will dispute that. That's not to say that a person who's going to be looking at a tower that's on 24 hours a day doesn't have a right to come up to us and have that discussion and listen to your explanation which is what I'm trying to draw out of you. When you defend your position certainly, they get an explanation. One that I could not give them. Quite honestly, I wouldn't go near the FCC. I couldn't call them and get an explanation because I wouldn't know how to ask them the questions. We kind of leave it up to you to help us with what your rights are. You tell us what your rights are. Certainly we can check to see if that's your right. If you don't make the statement, we don't hear the statement, I don't understand. That's what we get from our neighbors. MR. RE: I can appreciate that. BOARD MEMBER WEISMAN: I do want to make just one brief comment which is your absolutely right, the pole has already been approved. It has been approved for first responders equipment. We went through all kinds of lengthy analysis and discussion. We did our very best to try to understand the expert testimony that was provided to us. In this particular application, what would be very beneficial would be to have our own expert corroborate your expertise, your experts conclusions. In other words, relative to Cingular's application, you provided very specific testimony from a range of different experts about the potential impact or lack thereof and that's as it should be. But you can understand that when an applicant -- in any court of law this is done, when you have experts testify and you have a plaintiff and a defendant and they both have their own expert and you try to figure out who's saying what. Experts are clearly going to attempt to present a strong argument in favor of the applicant. That's their job. So I believe to balance that, we need to have testimony from an independent individual that can corroborate your expert or disagree with them. MR. RE: I'm a little puzzled by that because, again, I would understand that in a typical application for a new monopole but here 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 168 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 it's almost beyond doubt that the visual impact of this site will be negligible because the antennas will be inside. BOARD MEMBER SIMON: That's not the only issue. Safety is the issue then it does make a difference whether it's just being for first responder or it's being used for a whole range of cell phone companies. The order of magnitude differs in the significance of it. That's what the issue is. MR. RE: With respect to that, the telecommunications act also has a number of other provisions. The purpose of the telecommunication act is to encourage competition and to provide universal coverage throughout the United States. Whether the cell phone use is of importance to 911, it is. I think that's without a doubt. But that's not why we're here. We're here because we have insufficient coverage. If we are proposing a site that will have no visual impact and will eliminate the service gap and it complies with FCC standards, it seems to me that we comply with not only all of the provisions of the Southold Town code but all of the case law that is come down over the past two decades regarding cell phone sites. It's probably the best of all worlds. It's invisible. It eliminates the gap and it complies with the FCC standard. So that this site is probably the best application, except for the Orient Congregational Church which was very similar, it's probably the best application that's been brought before the Board because it has so little impact across the board. BOARD MEMBER SIMON: One thing I do have to say. Federal standards that declare that some particular food is safe is not the same as requiring everybody to eat that food or to buy that food. The issue is not whether the Federal government standard says this is okay but whether the community and the government of the community is going to empower the person who is convinced on good ground to then impose this on everybody here whether they want it or not. These are deep questions that have to do with individual self-responsibility and choice. We're not suggesting that anyone is going to show that the Federal standards are inadequate. The question is whether the citizens have an obligation to accept 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 169 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 that whether they agree with it or not or move out. MR. RE: I respectfully disagree. I think that the Federal standard says that a local body cannot deny an application based on emissions. BOARD MEMBER SIMON: So we wouldn't even need to have this hearing. If you're right, there's no need to have this hearing at all. MR. RE: I disagree with that also because I think there are a number of issues that you can get into; aesthetics, property values, design, height and all of those issues. In this case, we're going within the pole at the given height. Aesthetics there's going to be no visual impact. BOARD MEMBER SIMON: If those were the only issues, your argument would be absolutely right. What I hear from people in the community is that rightly or wrongly, the safety issues are the ones that many, many people are concerned about. If you're right, we have no business being worried about the safety issues the FCC has assured us that it's safe. Maybe they're right. I'm concerned with the citizens willingness to disagree. So many issues. It's like fluoride in the drinking water and I happen to be on your side on this particular issue. But I do respect people who say I do not want to drink water that has fluoride in it because I don't care how many studies there are, I don't want to be forced to drink it. So they buy bottled water. MR. RE: Well, I think you can understand if the Federal law were not written that way, no matter where we go, there will always be a neighbor who says I'm concerned about the emissions and I think the Federal government addressed that by saying local government, that's not something you are to address. You can address the other issues. BOARD MEMBER SIMON: So people have to move away. What choice does the individual citizen have? CHAIRMAN DINIZIO: Michael? That's kind of a philosophical thing. I understand what you're trying to say. I think that we need to gather our information and we're going to ask some questions after this of you and we'll see where it goes from there. We're a long way from making a decision on this. Mr.and Mrs. Bondarchuk, would you like to 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 170 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 say something on this? MS. BONDARCHUK: Thank you. I just wanted to say again, thank you for addressing the issue of the community safety. BOARD ASSISTANT KOWALSKI: Can you state your 4 name? 5 6 MS. BONDARCHUK: I'm sorry. Cheryl Bondarchuk. I reside at 350 Oak Court, East Marion. We're the adjoining property next to Mr. Lekakis. Regarding property value, I think my property value would already go down. Knowing that there's a cell tower there, I would not buy the property. So right there, there's a decrease in property value in my mind and I think as tax payers and as citizens of the community, we have a right to feel safe in our own homes. I do not feel safe with the proposition of putting a cell communication antenna in a cell tower next door. I have no problem with the fire department using it to communicate with their fire department personnel. That is indeed a service to the community but a commercial company coming in to put a cell phone in just to make more money at the expense of the health of the community members I think is a hard call to make. We have a responsibility to our community members and our future community members meaning our children and our grandchildren. I think that there is a possibility, a very high probability of harm to come from this constant radio frequency. Thank you very much. CHAIRMAN DINIZIO: Sir, do you have anything to say? MR. HUGHES: Yes I'm Joe Hughes. I reside at 350 Oak Court, East Marion. As far as the trees go, you have 7 foot of trees and you have 113 foot of tower up there. That's not blocking it. You're still going to see it. As far as I understand it, it was already approved for Cingular and for the fire department. CHAIRMAN DINIZIO: Just the fire department. MR. HUGHES: You're talking emissions, it's things I don't know about. I just don't want my kids to pay the price of something they can't prove and we can't prove. CHAIRMAN DINIZIO: In a nutshell, sir, what the other side is saying is that the Federal government has looked at this. They have mandated 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 171 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 that cell companies have to live up to a certain franchised agreement. They have to give coverage to a certain degree of normalcy within their coverage area. So that means they have to go out and find sites. Then the government said the emissions from these cell sites are not harmful to the general population. Now we can't question that. That's not the subject of this. MR. HUGHES: In certain areas, right? CHAIRMAN DINIZIO: Right. MR. HUGHES: What about Bud Lite and Long Beach? CHAIRMAN DINIZIO: Say that again, sir. MR. HUSSEIN: Bud Lite and Long Beach. That's already State property. CHAIRMAN DINIZIO: But that's not -- we can't force the State to put a tower on their land. MR. HUSSEIN: Doesn't that go to the Federal level or no? CHAIRMAN DINIZIO: You want to hire a lawyer to figure all that out, you're more than welcome to. What we've been presented with here is what's called colocation. Which is if there's an existing tower, that they must attempt to locate on that tower as opposed to building another tower in the area. First and foremost, we want to reduce the number of towers. There's a couple ways of doing that. One way is to build real high towers so you don't need so many. Another way is to build lower towers but you need a few more. In any case, if one exists, the Federal government wants them to go on there. And they're telling the municipalities that we must consider that. We don't have a lot to say once that tower exists as to whether or not they can go on it. But we can ask questions like your health question and try to get answers with respect to trying to alleviate your concerns but we can't deny it because. MR. HUGHES: That would be my 6 year old and my 8 year old. CHAIRMAN DINIZIO: I personally don't believe it's going effect them. I've worked in the industry for a number of years. I've lived in Greenport which has had the big tower. I've lived underneath that all my life. I've aligned microwave dishes, FNL dishes. I've done everything. That's not to say that when I'm 70 years old, I'm not loaded with cancer but I don't 4 5 6 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 172 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 know what to blame that on. I have the utmost faith and confidence in what they're proposing to do and it's not that I let you folks speak. I encourage you to speak. I'm just hoping that the conversation that you hear here alleviates some of that anticipation that you're going to have. If I saw a cell phone tower, I don't know that I would want to buy a house. I'm not an expert in that. We heard the expert and at the end of this hearing, we're probably going to have our own expert, an independent person who's going to digest all of this information that we heard in testimony and give us his opinion independently. He's probably going to be a person that works in the industry. That has confidence in the emissions of cell towers and that they won't effect you. I don't know how you can find anybody else that's going to give you an expert opinion that doesn't work in the industry. MS. BONDARCHUK: It's not the current studies that are of upmost concern. It's what's going to happen five years from now, ten years from now, twenty years from now. I work in the radiation field. I'm a radiologic technologist and I do know that years ago radiation was considered safe. You could work around radiation and there were no detrimental effects from the low levels of radiation that we as x-ray workers get. They're finding out that those studies are beyond the scope that they had before. They're finding out that there are harmful things that have been happening to people, biologically, from these low levels of radiation. Low levels that were considered to be safe. Things that we've worked around for years and years. Can we say the same for radio frequency coming from cell towers? They say that it's acceptable now. Acceptable and safe are two different things. CHAIRMAN DINIZIO: I can say this to you. Radio frequency has been around as long as x-rays. MS. BONDARCHUK: I know. CHAIRMAN DINIZIO: Certainly, the power to produce a radio frequency is nowhere near what it takes to throw an atom threw a body. It is a degree of amplitude. There is that. MS. BONDARCHUK: The FCC itself, years ago where they had the cell phones, the antennas were too short on the cell phones themselves and they 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 173 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 6 had to lengthen the antennas on the cell phones because of brain tumors. CHAIRMAN DINIZIO: Again, that's debatable too. I'm hoping what you hear alleviates your fear. I think that really we're kind of hamstrung but we're going to do the best we can to help you. I think when you came before, you were concerned about the fire department. The moment I said, the key to mike. How often does the key to mike? An hour a year. We bought up the constant. We're going to listen to that. I don't envy you. BOARD MEMBER SIMON: I can say as somewhat more sympathetic for your point of view but being more trusting of the best science there is on this. I'm inclined to do so. I think what everyone has the right to is to have whatever is decided be made consistent with the best science there is at that time. The horrors of past, the x-rays and pleuroscopes and so forth, they were driven by interests which weren't interested in bedding this before the best science there was. The best we could hope for is that we get the best information from the least bias sources. We can't get perfection. But we can be less imperfect than other sources might be. MS. BONDARCHUK: Thank you very much. MR. HUGHES: Thank you. CHAIRMAN DINIZIO: Young lady, do you have something? Can you come up to the microphone, please. MISS. COTHALIS: I disagree. My name is Aregerou1a Cotha1is. I think we shouldn't because soon, as you know, New York City used to be royal just like Greenport, so if we put all these wires, then soon they'll be more and more and more and then they won't have room for me and my sister to play. There won't be room for people and their families to camp or hang out, look under the stars because of the light pollution. The light will start blocking the stars and soon it will turn into New York City. Then there will be all these buildings. People will start moving in just like New York City. Now there are tons of people there. If we put up these wires, a lot of people will come and they might fall down on someone's house and create a fire. I think we shouldn't do it because then there will be so many people, we can't even see the stars anymore. 2 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 174 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 CHAIRMAN DINIZIO: was heartfelt. MR. RE: That sort CHAIRMAN DINIZIO: Thank you very much. That of -- What do you have to say to 4 6 that? MR. RE: Just very short because you've been very patient. There was a comment about the 7 foot trees not blocking the poles. They're not intended to obviously. They're intended to shield our addition to this site which is the cabinets. With respect to the health concerns, one last item, Mr. Cornacchia whispered in my ear that these frequencies have been used for 60 years. It's not like they're suddenly something more on the horizon. If you were to turn on the radio in this room, you would pick up radio frequency from dozens of radio stations. If you turned on a television, you would have radio frequency from television stations. The only thing that the addition of the antennas inside the pole would do is enable one additional station to be received, which would be the cellular telephone station. So it's not something new and mysterious. It's something that's been around for a very long time. CHAIRMAN DINIZIO: Certainly, you'll need the towers for the small transmitters that you're trying to pick up too. They can only transmit so far. MR. RE: And if we can't go in this pole, then we'd have to come back here with an application to erect a pole and then you would be asking me why didn't you ask to collocate and I would say I did. We're doing what is not only Southold but across the country just about every Town and Village has a code that encourages to do exactly what we're applying for here. CHAIRMAN DINIZIO: With that said, I know I've been eluding to this the whole time so we'll get to it right now. Anyone else have any more questions? We'll probably have another hearing on this. Are you familiar with our law 280-70E-6? MR. RE: Yes. CHAIRMAN DINIZIO: Allows us to ask you to hire our own consultant based on the amount of costs that you reported to the Building Inspector when you need--. In any case, I can give you two options. One is you could go away and come back next month and I'll give you the opportunity to 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 175 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 tell us why you don't think this applies to you and we could hear that. Or I would like to see if we could go forward with finding somebody who can give us opinions specifically on the ADI, the area of dominant influence, for that particular tower. Whether you need to speak to the reason has to be right there? Why you couldn't cover it from Greenport? Why it can't be covered from Orient? Someone to testify besides your testimony that that is good or there are alternatives. That's what I'm looking for and I'm thinking the rest of the Board will probably feel more comfortable hearing that information. MR. RE: My question would be, if we were to collocate in Greenport -- we're already in Greenport -- but assuming we aren't, we would be affixing antennas to a tower just like we're applying for here except that they would be exposed. So it seems to me that while I understand traditionally why a board would want to know that issue, in this case since we're going to have no visual impact, it would, from my vantage point, be a tremendous waste of money because there's going to be no visual impact from our application. We already have sites to the east and west. We have a site in Greenport and we have a site at the Orient fire district. CHAIRMAN DINIZIO: I agree with you there. I'm wondering if this site is necessary. I would like to have someone besides yourself or your people tell us that. BOARD MEMBER WEISMAN: I think this came up in a very compelling way when we were examining testimony for the pole itself. At that time, we heard tons of expert opinion. All of it coming from the applicant. And at that point, we began to realize that we were doing our best to interpret what was an opinion that was from the applicant and that we were in no position to be that sophisticated about it, try as we might and we certainly did. We began to realize that not just with that application but with all future applications, it would be prudent of us to have available as we do with Soil and Water, for example, with applications that look at environmental impacts, to have a radio frequency engineer that we could, as a Board, use when necessary on applications or towers and 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 176 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 colocations. I think that's what we're really talking about. The Board had decided that going forth in order to reassure the community and ourselves that we are doing our fiduciary responsibility to observing that for the community by making an informed decision that is balanced by experts, expertise from the applicant but also independent that we can call upon. I think that's what Jim is saying. I've done some research and found a couple of RF engineers that have no interest in the community that can help guide us through this process of interpreting the testimony that we've heard and the evidence that's been put fort in writing. CHAIRMAN DINIZIO: The code does allow us to do that. That's the whole thing here. Not only did we hear your expert testimony but we heard testimony from other people. We're looking at an inch and a half document here and one way or the other, some people on this Board may feel like they can't make a decision based just on that. That someone needs to analyze the information we received today. You know, I'm willing to give it to the next hearing if you can give us something that says you don't feel like you need to provide that. I certainly understand it and we would have to take it from there. BOARD MEMBER SIMON: The statute provides that the applicant -- CHAIRMAN DINIZIO: I think we can require it. If this gentleman looks at this law, he may find something in that law that says that he's not necessarily in this instance required to do it. I would like to give him the opportunity to present that to us in a cogent argument. Not at a quarter to five when spaghetti is on in forty-five minutes. MR. RE: My thinking is and I respect your offer to allow me to review the code is that unlike a typical application, we're not proposing to erect a monopole and so the question is to whether the testimony regarding need becomes almost, not quite, but almost irrelevant since it's going to have no effect on the surrounding areas from a visual standpoint, it's an issue that's almost irrelevant. BOARD MEMBER WEISMAN: You keep referring to visual standpoint. That is only one aspect of the 3 4 5 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 177 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 balancing test that we have to evaluate. Visual impact on character of the neighborhood. The visual impact is done already. It's a pole. It's not your colocation. You're absolutely right, there is no additional visual impact. MR. RE: As a public utility we're not judged by a normal zoning standard of the balancing. What we have to prove is that the proposal is the least obtrusive way to provide service to an area. CHAIRMAN DINIZIO: You do have to prove that. MR. RE: But I can't imagine any less obtrusive way to provide service to an area. BOARD MEMBER SIMON: That's where the safety thing comes in. If safety is not an issue, then it's that simple. CHAIRMAN DINIZIO: I think te Federal government not withstanding, I still believe that, we have to be convinced that it's necessary. I'm not saying it is now. I haven't made my mind up one way or the other and I'm giving you the opportunity to tell me why our code doesn't say we can't do that. If we had someone else telling us that it was necessary, certainly that would build our record. It would be nice to have in our file to say look we had more than just you guys come in. We had a guy come from West Virginia. MR. RE: Why don't I do this then. Why don't I consult with my client tomorrow and then get back to you. BOARD MEMBER SIMON: It's not whether it's necessary. It's a matter of a cost and/or risk benefit analysis. MR. RE: It really isn't, with all due respect. CHAIRMAN DINIZIO: No. We can't do that. Our laws and Federal law is very specific. They're telling us, they're coming to us and saying okay, it's necessary that we locate here. We found a tower. I think the only question that we have is okay, we need to know that it's necessary because that's what you're saying. If beyond that -- well the impact on the community is the tower that we granted before. BOARD MEMBER WEISMAN: That's one impact and that was decided based entirely upon testimony and expertise presented by the applicant. MR. RE: But Ms. Weisman, I'd like to hear what the other impacts are then. 4 5 6 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 178 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 CHAIRMAN DINIZIO: You can't go safety. BOARD MEMBER WEISMAN: You certainly can. CHAIRMAN DINIZIO: No because the Federal government says it's safe. BOARD MEMBER SIMON: The Federal government just says that the Town cannot pass a law. It doesn't say that the Town cannot CHAIRMAN DINIZIO: We can't say to the Federal government that it's not safe. MR. RE: What is actually says is that the local government is preempted from making a decision based on the emissions from a site so long as we comply with the standards. BOARD MEMBER SIMON: Is the government precluded from turning something down on the grounds that let's say a majority of the citizens consider it to be unsafe. MR. RE: Yes. As a matter of fact, that's a correct statement. BOARD MEMBER SIMON: The law is a lot stronger than I thought it was. MR. RE: Yes, it is. You cannot deny an application based on emissions so long as we present evidence that it complies with the standard. BOARD MEMBER SIMON: So that would apply to nuclear power plants, for example? MR. RE: No, no, no. It doesn't. It applies to personal wireless service facilities. CHAIRMAN DINIZIO: I have one more thing I'd like to know if you can do for us. It may be helpful. Do you have an inventory of Cingular wireless sites in Southold Town? MR. RE: Yes. We submitted it to the Board as part of the application. CHAIRMAN DINIZIO: You know that map that you gave us, I have a map in the back here, can you draw circles of the approximate area of dominant influence. BOARD MEMBER WEISMAN: Coverage. CHAIRMAN DINIZIO: They don't have to be accurate but -- would that be a problem for your company. I know there's proprietary stuff that must go on and people don't want to share their information. MR. RE: I'll check with my client on that too. I don't know if that's relevant to this specific application. But in order to comply -- 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 179 . 1 ZONING BOARD OF APPEALS JUNE 28,2007 2 3 CHAIRMAN DINIZIO: Because I'm looking at, you know, you're saying you got one in Northville, one in Mattituck. I know that they're farther away than East Marion and Orient are or even East Marion and Greenport. How's your coverage there? Is it better? Good? Not so good? Need more towers? MR. RE: No. But it's not as good -- if you were to see the continuum, there are gaps in between. CHAIRMAN DINIZIO: And that's what I'm looking for. There's got to be some kind of an average of distance between towers. I understand the height has a lot to do with it. Certainly topography does but certainly just a circle around -- this 100 foot site, you have a 35 foot site, Fisher's Island. Maybe even Fisher's Island might come in to play in this. MR. RE: We have a site on Fisher's Island. CHAIRMAN DINIZIO: Is that our side of the Island or the other side? MR. RE: I appeared before this Board. It's a site on Fisher's Island. CHAIRMAN DINIZIO: Okay. And then you know you've got Shelter Island. MR. RE: We have a site on Shelter Island. CHAIRMAN DINIZIO: It's 150 feet? You can't even see it. MR. RE: It's over by the dump. CHAIRMAN DINIZIO: Can you ask -- as your client certainly because I understand that from a business standpoint that may not be good. But it may help in our deliberation to realize the limitations of what a tower can do. BOARD MEMBER WEISMAN: Actually Jim, I believe I already have that map. But I'd like to compare what I have with what they present. I'll show you the map I have. CHAIRMAN DINIZIO: I've seen one already. BOARD MEMBER WEISMAN: But that's in conjuction with what an outside RF engineer can corroborate also. They can do that for us. They can say they really need it because there are big gaps. No matter what you do, there's going to be some gap in service someplace. It's inevitable. You're going to -- we live in the can you hear me now? It's going to happen. In my house, I live in Southold near the Sound and there was no way I was going to use my -- I've changed carriers three 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 180 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 times and it doesn't matter. CHAIRMAN DINIZIO: Let me tell you something Leslie, I live, I can look at this water tower in Greenport and still not have Cingular service. BOARD MEMBER WEISMAN: That's what I'm trying to so. There's going to be gaps. So in some ways those maps are helpful but they're also somewhat limited. You're never going to get 100% coverage everywhere by everybody. There's going to be interference and it can vary from time to time depending on what's there to interfere with the frequency. MR. RE: That's correct. BOARD MEMBER WEISMAN: I would feel more confident in my decision if I had additional guidance that was from an unaffected party to simply corroborate your presentation and to allow us to assure the community that this has -- there's nothing for them to be concerned about. Only be grateful that there's better cell phone coverage. We already have done the emergency equipment and communications. This was inevitable. We knew this was coming. I just want to make sure from here on when we have individual applications, we go forth with a kind of balance approach in evaluating what we're doing and a higher level because this is complicated stuff and you all remember how many hours and hours and hours of testimony we went through on that tower and in Orient. There's one coming up out at the Point that's going to be a whole other thing. It's not near a residential area but it's near other resources. They're going to happen one by one and we better put into place a policy that makes this more efficient for the applicant's sake and for the community's sake. Certainly we want to, at the same time, independent of individual applications look at the total picture which is, as I said, I think where the Town Board is going with this. CHAIRMAN DINIZIO: Do you feel like you could answer us in a letter? MR. RE: Yes, I could. CHAIRMAN DINIZIO: About my map thing, I have a map in the back here. If I give it to you, will you just, if you can -- MR. RE: I'll talk to my client and if they say yet, we'll provide you with the map you requested. 3 4 5 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 181 . 1 ZONING BOARD OF APPEALS JUNE 28,2007 2 4 CHAIRMAN DINIZIO: That would be wonderful. your towers. Not anyone else's. That would be helpful. I know there are other towers. can we expect that? MR. RE: Within ten days. CHAIRMAN DINIZIO: Within ten days? We're going to be meeting on the 12th? BOARD MEMBER KOWALSKI: We would need to accept the paperwork. Are you closing the hearing? CHAIRMAN DINIZIO: I don't know. That's what I'm trying to find out. Should we leave it open until then? BOARD ASSISTANT KOWALSKI: Yes. Let's see what we get. CHAIRMAN DINIZIO: We'll evaluate the information and then put it on the agenda? BOARD ASSISTANT KOWALSKI: It would go underneath a second hearing, it would be on August 2nd in the afternoon. CHAIRMAN DINIZIO: Can we make that decision on the 12th? BOARD ASSISTANT KOWALSKI: I'm trying to think ahead for a date because we can't have a hearing on the 12th. Unless you meet over here and you want to have a special meeting here at 6:00 o'clock? BOARD MEMBER SIMON: If the Board decided we to go ahead and get an expert then we would we left the hearing open. We don't want to to readvertise the hearing. CHAIRMAN DINIZIO: That's true. what I'm saying about the 12th. BOARD MEMBER SIMON: You can't decide it on the 12th. CHAIRMAN DINIZIO: We can look at the information. BOARD ASSISTANT KOWALSKI: Let's not even talk about the 12th. Let Mr. Re submit it in writing. You have until the middle of July to decide whether or not you want to cancel the hearing or not. You don't have to adjourn this to July 12th. You can adjourn it to August 2nd. MR. RE: There would be no need to renotice? CHAIRMAN DINIZIO: No, if we leave it open, we'll be back here -- what's the date exactly? BOARD MEMBER KOWALSKI: It would be August 2nd in the afternoon. I don't have that calendar Just just When 3 5 6 7 8 9 10 11 12 . 13 14 15 16 want wish have 17 So that's 18 19 20 21 22 23 24 . 25 182 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 in front of me but probably around 1:30. Then I thought if the Board didn't want to have a continued hearing, they could do a resolution closing the hearing at that the time and getting ready to make a decision at that time. MR. RE: All right. Thank you. CHAIRMAN DINIZIO: Thank you very much. MR. LEKAKIS: I have a very brief comment. I'm very encouraged by the Board's consideration of an outside expert. However, I would like to make one request. As the Chairman noted, I have no expertise and there was no expertise presented about this area in the submission that I presented. Since you're considering already hiring a radio frequency expert, I would respectfully request that the Board also consider hiring an appraiser or a property value expert to see where the least impactful area for the tower could be. CHAIRMAN DINIZIO: What would be the reason for that? Now this is a tower that already exists. The tower is not the subject. BOARD MEMBER WEISMAN: I don't think he understands. MR. LEKAKIS: I understand. The tower is going to be built for the firehouse and then you're going to put the cellular tower in front of it. BOARD MEMBER WEISMAN: They're proposing to collocate on the tower that's already approved. CHAIRMAN DINIZIO: So where is the property value a problem? MR. LEKAKIS: I wouldn't conflate the issues of visual impact and property value. As Board Member Simon noted, the concept of property value is one that's based partly on human psychology. If people know or think that there's a cell phone tower, let's say 90 feet away, or close to where they live all year round, they might not be as willing to pay as much. Again, you're right, I don't know the area but there might be some place in this area where it just wouldn't be as close to people. That's all I'm suggesting. If you can get an expert to help on that analysis. MR. RE: And I would oppose. I can't imagine, first of all, the tower is going to be there with the antennas for the fire department. For someone to say, that's okay -- first of all, they wouldn't 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 e 25 183 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 6 see the antennas inside even if they knew, that would not change it. The Board knows East Marion. A new tower somewhere else would certainly have more effect visually property value wise than going inside this pole. CHAIRMAN DINIZIO: I tend to agree with you. I don't think that we can even consider that, sir. That's my personal opinion. I don't know how the rest of the Board feels. It's inside. It's there for that reason. The Federal government is basically telling us we have to allow those things to collocate. Does it affect property values? I think it certainly does but I just don't know that we can make a decision based on property value. BOARD MEMBER SIMON: One practical issue. It probably would be very hard to get an expert who would be able to assess whether the property values would be lowered by the knowledge that within an existing monopole there were cell phones as opposed to just a tower alone or with no pole. That's a very sophisticated, subtle question. It would cost an enormous amount of money to get somebody to do the research on that. BOARD MEMBER WEISMAN: It reminds me of many decisions that we've been faced with applications where testimony should have gone to the Trustees and wound up incredibly long, setbacks from wetlands and turtles and things that really should have been a part of that hearing. At this point, the pole is a done deal frankly. The impact it may or may not have on property values is moot. That pole is happening. The question of health and safety, there are laws we're required to follow and then there's wisdom. Wisdom sometimes flies in the face of the law and we've heard about that. One day they told you that eggs are horrible for your cholesterol and this next minute a study comes out and says eat all the eggs you want. This is the nature of ongoing knowledge as it develops over time. I think the key issue here is making sure that when testimony is presented by any applicant, that if that testimony is technical and complex, that we as a Board have our own expert to help us assess the accuracy of the testimony that the applicant presented. That's what we're getting down to basically and we're trying to do the best job we can in fairness to the applicant, in fairness to the community to 3 4 5 7 8 9 10 11 12 e 13 14 15 16 17 18 19 20 21 22 23 24 e 25 184 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 3 balance these things. This is one step I think in that direction. We don't want to delay the process unduly and we don't want to rush it either because we want to be sure about what we're talking about. We're trying to find a way to keep the hearing open, move as swiftly as possible, cooperate with the applicant to hear what you had to say and read what you submitted. I think we're making great progress in this and we'll do it as swiftly as we can. We'll all mark the calendar for the next round. MR. LEKAKIS: Again, I appreciate the Board's deliberations. MR. BOYD: I would like to say one very short comment on the question of experts and I'm not addressing this particular application. From what I hear, I'm afraid this Board is on a very, very slippery slope. If you intend to use experts in any cases that involve complex matters, you are going to potentiate the time that is required to finish an application before the Board and you're going to very greatly increase the cost to any applicant. I wish you would keep that in mind before you make a determination. I'm not saying that there are not certain cases that require those experts but I was afraid from the comments that I just heard that there may be a feeling of going toward an expert in more and more and more cases. BOARD MEMBER SIMON: I'm the one you're looking at. MR. BOYD: I wasn't. As a matter of fact, I was looking slightly to your right. If you'd like, I'll look at you as well. BOARD MEMBER SIMON: Some complex matters we wouldn't want to appeal. Just because they're complex doesn't mean expert. MR. BOYD: I understand the words. I don't want to get into semantics on this thing but I do want to caution the Board about making the process that we're all involved in more complex and more expensive. BOARD MEMBER WEISMAN: Until such time as we have experts that the Town hires to really examine the whole issue on a comprehensive planning basis, we have to grapple with one application at a time which is really grappling in the dark. How many times did we hear Mr. Shibel (phonetic) tell us 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 185 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 about propagation maps? You were there. You remember. We really, really need to look at the bigger picture and when that happens, we won't need anymore expertise. CHAIRMAN DINIZIO: I think that maybe you shouldn't try to use this application to start MR. BOYD: Exactly. BOARD MEMBER WEISMAN: I'm not. I'm trying to reassure Mr. Boyd -- CHAIRMAN DINIZIO: You keep going to this comprehensive blah blah blah. What we should be doing is verifying the information as they gave it, specifically. It's the reason why I waited to the end of the hearing so that we can concentrate on exactly what they said. I don't care about Southold right now. I care about how this particular cellular company needs to service this particular area. From there we will all learn, one way or the other we'll make our judgment. Personally, I think that we will probably learn a little more than we need to but you know what, I have seen in the past us make decisions based on feelings as opposed to actual science. The Orient tower is a case in point. You lowered a tower 30 feet. Now you just necessitated another tower. Now, the only person that gets punished in that, and this will be the last I ever say, is the fire department because they still can't reach Plum Island. And they're required to be able to communicate. Now I can hear, I heard Board members say, they can just locate on that. They can't just locate on it. So I'm looking specifically and the reason why we're at the end is that we're going to address the questions that they gave us. Then, if we want to do something comprehensive, we're not going to be hiring -- I'm thinking this is a one month deal with this guy. We can submit into him the stuff that we have, give him the book if you want to give him the book, I don't care. Let him evaluate it and let him say no, what these people are saying is the truth or no, I dispute this. It can be done in such or such a way. BOARD MEMBER WEISMAN: Look. Let me just clarify what I said. I absolutely agree. This is an application before us and we are addressing this application. I used it as an opportunity just as we did this morning with the whole problem with demos and having to reconstruct foundations. 3 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 186 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 We're discussing two different stages of problems. One is a specific application and that's what we're to deal with here. We talked about having a consultant for individual applications. I must use this as an opportunity to say that in order to avoid having to go through each application with such a fine-tooth comb, if we go to the next level, and that has nothing to do with you or your application at this point, we'll be in a better position. We won't have to say the fire fighters couldn't, because we knocked off 30 feet when we shouldn't have. I don't know about that because I don't know what tower is corning next or where it's going to be located next. The Town has to know that, not the ZBA, the Planning Department has to know that. MR. RE: But none of those issues are before the Board on this application. BOARD MEMBER WEISMAN: No, they are not. You're absolutely right. That's why I want to make it very clear. The intent is not to encumber the process to add great expense and time but to make sure that our decisions are well informed. That's all. BOARD ASSISTANT KOWALSKI: I just had one other though. When we get an answer from Mr. Re, the next step would be in our Department, maybe not the Board at a hearing, but our Department will know whether to go the next step or to file or whether we can prepare the file to be finished. If we go the next step, there will be time involved to prepare the whole file, also to ask for fees, to collect fees from the applicant which is covered at 5% amount. We have other steps involved. We may not be able to do that by August 2nd. If that happens -- I'm thinking down the road. CHAIRMAN DINIZIO: I know you're very concerned about that Linda. Let's just take this one step at a time. I guess my conveyance to you is that -- don't think that we're trying to balance the entire Southold Town cellular coverage on your application. Specifically, and I know that both of these people to my left have made that concern, that we need to know when making these decisions that we're making the right decision. That's all we're looking for. Making the right decision here doesn't effect any other tower at 3 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 187 . 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 this point; am I correct? BOARD MEMBER WEISMAN: Yes. CHAIRMAN DINIZIO: Let's adjourn this hearing Michael, do you need to say something? BOARD MEMBER SIMON: Just one thing. Sooner or later, we'll probably need an independent expert. But my understanding is that if we get an expert, whenever we get it, this time, next time, we will learn somethings so that maybe the next time we won't need the expert. So it may speed up some of the subsequent process. This may not be the last time you appear before this Board. It could very well be easier the next time if we have to go through the process. But sooner or later it's going to happen, this mayor may not be, we don't know yet. This is the right issue were we need an expert. Mr. Boyd has conceded that there may very well be some issues where it is absolutely necessary and important. We have to decide if this is it or if it'll corne later on. There will be a payoff subsequently after it happens, I believe. BOARD MEMBER WEISMAN: Quite frankly, it would have been very helpful to us had we had that expert when we were talking about the tower. This is an inevitable after the fact. Co10cation we knew was corning. I wish we would have had that when we were talking about the complexities and the height of the tower. MR. RE: That's why and without beating a dead horse, it seems that the next application for a tower might be a more appropriate time rather then hold up an application that almost everyone knows complies in every respect with the code and with case law. CHAIRMAN DINIZIO: Again, I'm only looking to verify your statements. I know they're experts and I would rely on an expert that was independent to make that decisions for me. Beyond that, it's not anything to do with anything else. So I'm hoping you can see yourself to perhaps help us in that respect. MR. RE: Thank you very much. CHAIRMAN DINIZIO: Anybody else wish to speak? We're going to adjourn the hearing until.August 2nd. I'll entertain a motion. 3 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 . 25 . . e 188 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 (See minutes for resolution.) ************************************ 3 (Whereupon, the hearing was concluded at 5:45 p.m.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 189 e 1 ZONING BOARD OF APPEALS JUNE 28, 2007 2 C E R T I FIe A T ION 3 I, Erika Nadeau, a Notary Public of the 4 State of New York do hereby certify: 5 THAT the testimony in the within 6 proceeding was held before me at the aforesaid time and 7 place. 8 That the testimony was taken stenographically by 9 me, then transcribed under my supervision, and that the 10 within transcript is a true record of the testimony 11 given. 12 I further certify that I am not related to any e 13 of the parties to this action by blood or marriage, 14 that I am not interested directly or indirectly in the 15 matter in controversy, nor am I in the employ of any of 16 the counsel. 17 IN WITNESS WHEREOF, I have hereunto set my 18 hand this _~~_~__ day of --~~f-- 2007. 19 20 rk-'~-IliL 21 22 Erika Nadeau 23 24 e 25