Loading...
HomeMy WebLinkAboutPB-11/13/1990PLANNING BOARD MEMBERS Bennett Odowski, Jr., Chairman George Ritchie Latham. Jr. Richard G. Ward Mark S. McDonald Kenneth L. Edwards Telephone (516) 765-1938 PLANNING BOARD OFFICE~ TOWN OF SOUTHOLD SOUTHOLD TOWN PLANNING BOARD SCOIT L. HARRIS Supervisor Town Hall 53095 Main Road P.O. Box 1179 Southold. New York 1t971 Fax (516) 765-1823 MINUTES NOVEMBER 13, 1990 Present were: Bennett Orlowski, Jr., Chairman G. Richie Latham Mark McDonald Valerie Scopaz, Town Planner Melissa Spiro, Planner Holly Perrone Jane Rousseau Absent were: Richard Ward Kenneth Edwards (Absent due to weather) Mr. Orlowski: Good evening, I would like to call this meeting to order. First order of business at 7:30 p.m. is the public hearing of Franklyn Born - This proposed lot-line change is to add 4,323 square feet from a 2.097 acre parcel to a 2.098 acre parcel in Peconic. SCTM 9 1000-55-2-25.2 & 25.3. We have proof of publication in the local papers and at this time everything is in order for a final hearing. I'll ask if there are any objections to this subdivision? Hearing none, are there any endorsements of this subdivision? Hearing none, is there anyone out there neither pro nor con but may have information pertaining to this subdivision that may be of interest to the board? Hearing none, any questions from the board? Board: No questions. Mr. Orlowski: Hearing none, I'll declare this hearing closed. Does the board have any pleasure on this? Mr. McDonald: Mr. Chairman, I would like to make the following motion. PLANNING BOARD NOVEMBER 13, 1990 WHEREAS, Franklyn J. Born is the owner of the property known and designated as SCTM $ 1000-55-25.2 & 25.3, located at the south side of North Road, west of Mount Beulah Road, and easu of Youngs Avenue in Southold; and WHEREAS, this lot-line change, to be known as Proposed Lot-Line change for Franklyn J. Born, is for a lot-line change adding a 4.232 square foot parcel to a 2.098 acre parcel; and WHEREAS, the Southold Town Planning Board, pursuant to the State Environmental Quality Review Act, (Article 8), Part 617, declared itself Lead Agency and issued a Negative Declaration on October 22, 1990; and WHEREAS, a final public hearing was closed on said subdivision application at the Town Hall, Southold, New York on November 13, 1990; and WHEREAS, all the requirements of the Subdivision Regulations of the Town of Southold have been met; and be it therefore, RESOLVED, that the Southold Town Planning Board approve and authorize the Chairman to endorse the final s~rvey dated September 26, 1990. Mr. Latham: Second. Mr. Orlowski: Motion made and seconded. Any questions on the motion? All those in favor? Ayes: Mr. Latham, Mr. McDonald, Mr. Orlowski. Mr. Orlowski: Opposed? So ordered. (Chairman endorsed maps.) Mr. Orlowski: 7:35 p.m. Joel D. Lauber This lot-line change is to add 4,916 square feet to lot 7, and 4,916 square feet to lot 8. This property is located at 4090 Orchard Street in Orient. SCTM $ 1000-27-3-3.7 & 3.8. We have proof of publication in both papers. Everything is set for a final hearing at this time. I'll ask if there are any Objections to this lot line change? Hearing none, are there any endorsements of this lot line change? Mr. Donald McAery - Attorney for the applicant. I would respectfully request that the application be approved. Mr. Orlowski: Any other endorsements? Hearing none, any questions from the board? PLANNING BOARD ~NOVEMBER 13, 1990 Board: No questions. Mr. Orlowski: No further questions, I'll declare this hearing closed. Does the board have any pleasure. Mr. McDonald: Mr. Chairman. WHEREAS, Joel D. Lauber and Margaret S. Lauber are the owners of the property known and designated as SCTM # 1000-27-3-3.7 & 3.8, located at 4090 Orchard Street, in Orient; and WHEREAS, this lot-line change, to be known as Proposed Lot-Line change for Joel and Margaret Lauber, is for a lot-line change adding 4,916 square feet to lot 7, and 4,916 square feet to lot 8; and WHEREAS, the Southold Town Planning Board, pursuant to the State Environmental Quality Review Act, (Article 8), Part 617, declared itself Lead Agency and issued a Negative Declaration on October 22, 1990; and WHEREAS, a final public hearing was closed on said subdivision application at the Town Hall, Southold, New York on November 13, 1990; and WHEREAS, all the requirement of the Subdivision RegulatiOns of the Town of Southold have been met; and be it therefore, RESOLVED, that the Southold Town Planning Board approve and authorize the Chairman to endorse the final survey dated September 13, 1990. Mr. Latham: Second. Mr. Orlowski: Motion made and seconded. Any questions on the motion? All those in favor? Ayes: Mr. Latham, Mr. McDonald, Mr. Orlowski. Mr. Orlowski: Opposed? So ordered. (Chairman endorsed maps.) Mr. Orlowski: 7:40 p.m. John Wickham - This lot-line change is to add 6,370 square feet from a 31.8 acre parcel to a 25,300 square foot parcel in Cutchogue. SCTM ~1000-110-8-32.3, 33. We have proof of publication in both local papers. Everything is in order for a public hearing. I'll ask if there are any objections to this lot line change? Hearing none, are there any endorsements of this change? Hearing none, any questions from the board? PLANNING BOARD 4 NOVEMBER 13, 1990 Board: No questions. Mr. Orlowski: Hearing no questions, I'll declare this hearing closed. Does the board have any pleasure? Mr. McDonald: Mr. Chairman, I would like to make the following motion. WHEREAS, John and Anne L. Wickham, Thomas Wickham, John L. Wickham, Stanford Searl, Jr. and J. Parnel Searl are owners of the property known and designated as SCTM ~ 1000-110-8-32.3 & 33, located south of Wickham Creek on Cutchogue Harbor, 1100 feet eas~ of New Suffolk Road in Cutchogue; and WHEREAS, This Lot-line change, to be known as Proposed Lot-line change for John Wickham and Others, is for a lot-line change adding 6,370 feet from a 31.8 acre parcel to a 25,300 square foot parcel; and WHEREAS, the Southold Town Planning Board, pursuant to the State Environmental Quality Review Act, (Article 8), Part 617, declared itself Lead Agency and issued a Negative Declaration on October 22, 1990; and WHEREAS, a final public hearing was closed on said subdivision application at the Town Hall, Southold, New York on November 13, 1990; and WHEREAS, all the requirements of the Subdivision Regulations of the Town of Southold have been met; and be it therefore, RESOLVED, that the Southold TownPlanning Board approve and authorize the Chairman to endorse the final survey dated August 14, 1990. Mr. Latham: Second. Mr. Orlowski: Motion made and seconded. Any questions on the motion? All those in favor? Ayes: Mr. Latham, Mr. McDonald, Mr. Orlowski. Mr. Orlowski: Opposed? So ordered. (Chairman endorsed maps). Hearing Held Over From Previous Meetings: PLANNING BOARD 5 NOVEMBER 13, 1990 Mr. Orlowski: The North Forty - This major subdivision is for thirteen lots on 30.3565 acres on the south side of Oregon Road; 621 feet west of Depot Lane in Cutchogue. SCTM ~1000-95-4-14.1. We're still in discussion with the attorney on the open space. Does anyone have any comments on this subdivision? Board: No comments. Mr. Orlowski: open. Mr. Latham: So moved. Mr. McDonald: Second. Mr. Orlowski: Motion made and seconded. motion? All those in favor? I'll entertain a motion to keep the hearing Any questions on the Ayes: Mr. Orlowski: Mr. Orlowski: Mr. McDonald, Mr. Latham, Mr. Orlowski. Opposed? So ordered. The Baxter Sound Estates - This minor subdivision is for two lots on 5.022 acres located on the north side of Oregon Road Road; 1100 feet west of Bridge Lane in Cutchogue. SCTM $ 1000-72-3-2.1 & 3. We are having a discussion on the right-of-way. I'll ask if anyone has any comments on this subdivision? Board: No comments. Mr. Orlowski: Hearing none, I'll entertain a motion to keep it open. Mr. Latham: So moved. Mr. McDonald: Second. Mr. Orlowski: Motion made and seconded. Any questions on the motion? All those in favor? Ayes: Mr. Latham, Mr. McDonald, Mr. Orlowski. Mr. Orlowski: Opposed? So ordered. Mr. Orlowski: Eleanor Sievernich - This minor subdivision is for two lots on 3.7648 acres located on the east side of Cox Neck Lane in Mattituck. SCTM $ 1000-113-8-5. We're still waiting for the Trustee's report on the wetlands and we'll PLANNING BOARD 6 NOVEMBER 13, 1990 review the comments. I'll ask if there are any comments on this subdivision? Hearing none, I'll entertain a motion to keep this hearing open. Mr. McDonald: So moved. Mr. Latham: Second. Mr. Orlowski: Motion made and seconded. Any questions on the motion? All those in favor? Ayes: Mr. McDonald, Mr. Latham, Mr. Orlowski. Mr. Orlowski: Opposed? So ordered. MAJOR AND MINOR SUBDIVISIONS, LOT LINE CHANGES AND SET OFF APPLICATIONS: Final Determinations: Mr. Orlowski: August Acres - This major subdivision is for thirty-six lots on 43.062 acres located at Arschamomaque. SCTM $1000-53-4-44.1 & 44.2 Mr. McDonald: Mr. Chairman, I would like to make a motion. RESOLVED, that the Southold Town Planning Board authorize the Chairman to endorse the final surveys, Sheet 1 dated January 8, 1990, and Sheet 2 dated October 13, 1989. Mr. Latham: Second. Mr. Orlowski: Motion made and seconded. Any questions on the motion? All those in favor? Ayes: Mr. Latham, Mr. McDonald, Mr. Orlowski. Mr. Orlowski: Opposed? So ordered. Mr. Orlowski: Long Pond Estates, Section 2 - This major subdivision is for thirteen lots on 29.87 acres loCated on the east side of Laurel Avenue, to the north of the Long Island Railroad in Laurel. SCTM $ 1000-56.1-P/O 2. Mr. McDonald: Mr. Chairman, I would like to offer the following motion? WHEREAS, Bayview Land Corporation is the owner of the property known and designed as SCTM $ 1000-56-1-P/0 2 located PLANNING BOARD NOVEMBER 13, 1990 at the east side of Laurel Avenue, to the north of the Long Island Road in Laurel; and WHEREAS, this major subdivision, to be known as Long Pond Estates, Section 2 is for 13 lots on 29.87 acres; and WHEREAS, the Southold Town Planning Board, pursuant to the State Environmental Quality Review Act, (Article 8), Part 617, declared itself Lead Agency and issued a Negative Declaration on July 16, 1986; and WHEREAS, a final public hearing was closed on said subdivision application at the Town Hall, Southold, New York on October 22, 1990; and WHEREAS, all the requirements of the Subdivision Regulations of the Town of Southold have been met; and now therefore, be it RESOLVED, that the Southold Town Planning Board grant conditional final approval on the surveys dated September 28, 1990, and authorize the Chairman to endorse the final surveys subject to fulfillment of the following conditions. All conditions must be met within six (6) months of the date of this resolution. 1. A copy of the filed Declaration of Covenants and Restrictions. Final maps (six paper copies and two mylars) containing a valid stamp of Health Department approval and the Liber and Page number of the filed Declaration of Covenants and Restrictions. 3. Six copies of the final drainage maps. 4. A filed copy of the Homeowner's Association. 5. Submission of the inspection fee in the amount of $11,615.70. Mr. Lath~m: Second. Mr. Orlowski: Motion made and seconded. Any questions on the motion? All those in favor? Ayes: Mr. Latham, Mr. Orlowski, Mr. McDonald. Mr. Orlowski: Opposed? So ordered. PLANNING BOARD 8 NOVEMBER i3, 1990 Mr. Orlowski: Pu~liese & Calabrese - This proposed subdivision is for two lots on 41.78 acres located on the north side of Route 25; 853 feet west of Bridge Lane in Cutchogue. SCTM 9 1000-97-1-P/O 12. Mr. McDonald: Mr. Chairman, I would like to offer the following resolution. WHEREAS, Ralph & Patricia Pugliese and John and Joanne Calabrese are the owners of the propertyknown and designated as SCTM ~ i000-97-1-12.1, located on the north Side of Route 25; 853 feet west of Bridge Lane in Cutchogue; and WHEREAS, this Minor Subdivision, is for two lots on 41.783 acres; and WHEREAS, the Southold Town Planning Board, pursuant to the State Environmental Quality R~view Act, (Article 8), part 617, declared itself Lead Agency and issued a Negative Declaration on October 22, 1990; and WHEREAS, a final public hearing was closed on said subdivision application at the Town Hall, Southold, New York on October 22, 1990; and WHEREAS, all the requirements of the Subdivision Regulation of the Town of $outhold have been met; and be it therefore, RESOLVED, that the Southold Town Planning Board grant conditional final approval on the surveys dated June 22, 1990, subject to fulfillment of the following conditions. All conditions must be met within six (6) months of the date of this resolution. Submission of a revised draft of the Covenants and Restrictions. Once this document is approved by the Town Attorney it must be filed in the office of the County Clerk. A notation that this document has been filed, including the Liber and Page number, must be affixed to the final map. Submission of final maps (5 paper prints and 2 mylars) all containing a valid Health Department stamp and the above mentioned notation. Mr. Latham: Second. Mr. Orlowski: Motion made and seconded. Any questions on the motion? All those in favor? Ayes: Mr. Latham, Mr. Orlowski, Mr. McDonald. PLANNING BOARD NOVEMBER 13, 1990 Mr. Orlowski: Opposed? So ordered. Mr. Orlowski: Franklyn Born, Joel D. Lauber and John Wickham have already been done. Final Extensions: Mr. Orlowski: North Road Associates - This major subdivision is on 16.886 acres located in Orient. SCTM $ 1000-18-4-1.3. Mr. McDonald: Mr. Chairman, I would like to offer the following motion. RESOLVED to extend the time period in which the Planning Board must take action after the final hearing for an additional 45 days. The extension will run until December 28, 1990. Mr. Latham: Second. Mr. Orlowski: Motion made and seconded. Any questions on the motion? All those in favor? Ayes: Mr. McDonald, Mr. Orlowski, Mr. Latham. Mr. Orlowski: Opposed? So ordered. Mr. Orlowski: Too Bee Reality Corp.- This minor subdivision is for four lots on 7.956 acres located at Southold. SCTM $ 100-50-6-5. Mr. McDonald: Mr. Chairman, I would like to offer the following resolution. RESOLVED that the Southold Town Planning Board grant a ninety (90) day extension of conditional final approval. Conditional final approval was granted on February 13, 1990 and a ninety-day extension will expire on September 10, 1990. The ninety (90) day extension will expire on February i3, 1991 unless all conditions of approval have been fulfilled. This will be the last extension that the Planning Board will be granting. Mr. Latham: Second. Mr. Orlowski: Motion made and seconded. Any questions on the motion? All those in favor? PLANNING BOARD 10 NOVEMBER 13, 1990 Ayes: Mr. Latham, Mr. McDonald, Mr. Orlowski. Mr. Orlowski: Opposed? So ordered. **************************************** Setting of Final Hearing: Mr. Orlowski: William Molchan - This minor subdivision is for two lots on 5.144 acres located on the north side of Ruth ROad opposite Sunset Drive in Mattituck. SCTM ~ 1000-106-1.3. Mr. Latham: Mr. Chairman, I would like to offer the following motion. RESOLVED that the Southold Town Planning Board set Monday, December 3, 1990 at 7:30 p.m. for a final public hearing on the maps dated August 6, 1990. Mr. McDonald: Second. Mr. Orlowski: Motion made and seconded. Any questions on the motion? All those in favor? Ayes: Mr. McDonald, Mr. Orlowski, Mr. Latham. Mr. Orlowski: Opposed? So ordered. Preliminary Extensions: Mr. Orlowski: Mattituck Creek Estates (James Cohill) This major subdivision is for nine lots on 19.1220 acres located on the southwest corner of Mill Road and Grand Avenue in Mattituck. SCTM ~ 1000-107-1.2. Mr. McDonald: Mr. Chairman, I would like to make a motion. RESOLVED that the Southold Town Planning Board grant a six month extension of preliminary approval from November 20, 1990 to May 20, 1991. Mr. Orlo~ski: Motion made and seconded. Any questions on the motion? All those in favor? Ayes: Mr. McDonald, Mr. Orlowski, Latham. Mr. Orlowski: Opposed? So ordered. PLANNING BOARD 11 NOVEMBER 13, 1990 Sketch Determinations: Mr. Orlowski: Thomas A. SarGent - This minor subdivision is for three lots on 26,983 square feet located on the east and south side of a right-of-way to Fox Avenue on Fishers Island. SCTM $ 1000-6-6-7. Mr. McDonald: Mr. Chairman, I would like to offer the following motion. RESOLVED that the Southold Town Planning Board grant sketch approval on the map dated October 22, 1990, subject to the following conditions: 1. Ail conditions as stated in the July 25, 1990 decision of the Zoning Board of Appeals. The final maps must be at a scale of one inch equals 100 feet, and must also be in accordance with all filing requirements of the Suffolk County Clerk's office. 3. The correct zone, R-40 Low-Density, must be stated on the final map. The Planning Board is requiring that a Declaration of Covenants and Restrictions be filed stating that: 1. There shall be no further subdivision in perpetuity. That the accessory garage (gar. & apt.) structure on proposed Lot $1 may continue its present non conformance (without any increase in size) for a period of not more then ten (10) years, or when the structure is abandoned or permanently vacated by the present tenant, whichever shall occur first. The occupancy of this nonconforming garage-apartment shall then automatically cease and become null and void, and the kitchen and cooking facilities must be removed, returning the use of the building to an accessory storage/garage building without evidence of sleeping quarters or habitability. These covenants and restrictions can be modified only at the request of then then owner of the premises with the approval of a majority of the Planning Board of the Town of Southold after a public hearing. Adjoining property owner shall be entitled to notice of such public hearing but their consent to such modification shall not be required. Mr. Latham: Second. Mr. Orlowski: Motion made and seconded. Any questions on the motion? All those in favor? PLANNING BOARD 12 NOVEMBER 13, 1990 Ayes: Mr. Latham, Mr. McDonald, Mr. Orlowski. Mr. Orlowski: Opposed? So ordered. MAJOR AND MINOR SUBDIVISIONS, LOT LINE CHANGES, SET OFF APPLICATIONS - STATE ENVIRONMENTAL QUALITY REVIEW ACT Lead Agency Coordination: Mr. Orlowski: Thomas A. Sarqent - SCTM ~t00-6-6-7. Mr. McDonald: Mr. Chairman, I would like to offer the following resolution. RESOLVED that the Southold Town Planning Board start the coordination process on this unlisted action. The Board makes an initial determination of non-significance. Mr. Orlowski: Motion made and seconded. Any questions on the motion? All those in favor? Ayes: Mr. McDonald, Mr. Latham, Mr. Orlowski. Mr. Orlowski: Opposed? So ordered. Draft Environmental Impact Status Mr. Orlowski: Angel Shores - Board to review the DEIS received on October 22, 1990, for completeness. SCTM ~ 1000-88-6-1, 4, 5. Mr. McDonald: Mr. Chairman, I make a motion. Be it RESOLVED that the Southold Town Planning Board deem the Draft Environmental Impact Statement (DEIS) dated September 1990, and received by the Planning Board on October 22, 1990, incomplete in regard to scope, content and adequacy as per the November 8, 1990, report from Cramer, Voorhis and Associates. The DEIS is to be amended to address or include the items noted in the report. The thirty (30) day public comment period to consider the accuracy and validity of the document will not be started until the Planning Board has deemed the DEIS complete. PLANNING BOARD 13 NOVEMBER 13, 1990 Mr. Latham: Second. Mr. Orlowski: Motion made and seconded. Any questions on the motion? All those in favor? Ayes: Mr. Orlowski, Mr. Latham, Mr. McDonald. Mr. Orlowski: Opposed? So ordered. Mr. Moore: Mr. Leodis sent his check, it is on its way. Mr. Orlowski: Thank you. Mr. Orlowski: Macari at Laurel Board to review the DEIS on September 27, 1990, for completeness. SCTM # 1000-121-4-9. Mr. McDonald: Delete it. Mr. Orlowski: Yes, we have to delete this one tonight because we do not have a quorum to vote on this. Mr. McDonald is abstaining from this one. SITE PLANS - STATE ENVIRONMENTAL QUALITY REVIEW ACT Lead Agency Coordination: Mr. Orlowski: McDonalds Corporation - This proposed site plan is for a restaurant on a three acre parcel, located in Mattituck. SCTM $ 1000-122-7-3.1. Mr. McDonald: Mr. Chairman, I make a motion. Be it RESOLVED that the Southold Town Planning Board having received a complete application, start the coOrdination process on this unlisted action. Mr. Latham: Second. Mr. Orlowski: Motion made and seconded. Any questions on the motion? All those in favor? Ayes: Mr. Latham, Mr. Orlowski, Mr. McDonald. Mr. Orlowski: Opposed? So ordered. PLANNING BOARD 14 NOVEMBER 13, 1990 LOCAL LAW PROPOSALS: Board to review local laws in relation to Zoning Application Fees, Sections 100-262(A) and 100-274. Mr. McDonald: Mr. Chairman, I make a motion that we lend our support to this action. Mr. Orlowski: O.K., let me formalize that a little. WHEREAS, the proposed amendments will result in an increase in application fees: From seventy-five dollars ($75.00) to three hundred dollars ($300.00) for a variance. From one hundred and fifty dollars ($150.00) to three hundred dollars ($300.00) for special exception; and From five hundred dollars ($500.00) to one thousand dollars ($1000.00) for a change or amendment to the Zoning Code of Southold. BE IT RESOLVED that the Southold Town Planning Board hereby recommends the adoption of Local Laws that would amend Section 100-262(A) Section 100-274 and Section 291 of the Zoning Code of the Town of Southold. Mr. Latham: Second. Mr. Orlowski: Motion made and seconded. Any questions on the motion? All those in favor? Ayes: Mr. Latham, Mr. Orlowski, Mr. McDonald. Mr. Orlowski: Opposed? So ordered. SETTING OF THE NEXT PLANNING BOARD MEETING Mr. Orlowski: Board to set Monday, December 3, 1990 at 7:30 p.m. at the Southold Town Hall, Main Road, Southold as the time and place for the next regular Planning Board Meeting. Mr. McDonald: I make that motion. Mr. Latham: Second. Mr. Ortowski: Motion made and seconded. Any question on the motion? All those in favor? Ayes: Mr. Latham, Mr. McDonald, Mr. Orlowski. PLANNING BOARD 15 NOVEMBER 13, 1990 Mr. Orlowski: Opposed? So ordered. Mr. Orlowski: Board to approve the August 13, 1990 minutes, September 10, 1990 minutes and October 2, 1990 minutes. Mr. McDonald: Second. Mr. Orlowski: Motion made and seconded. Any questions on the motion? All those in favor? Ayes: Mr. McDonald, Mr. Orlowski, Mr. Latham. Mr. Orlowski: Opposed? So ordered. OTHER: Mr. Orlowski: Cedarfields - Setting of final hearing to amend the filed Declaration of Covenants and Restrictions for the approved subdivision. SCTM $ 1000-40-5-1. Mr. McDonald: Mr. Chairman, I would like to offer the following motion. RESOLVED that the Southold Town Planning Board set Monday, December 3, 1990 at 7:35 p.m. for a final public hearing to amend the filed Declaration of Covenants and Restriction for the approved subdivision of Cedarfields. Number 17 is to be revised as follows. The underlined sections are to be added. Unfortunately, you don't have the benefit but I will read it. Except as hereinafter provided, the premises to be constructed on subject property shall comply in all respects with Local Law No. 6 of 1986 of the Town of SouthOld, CoUnty of Suffolk, State of New York, more commonly known as the Affordable Housing Law, with the exception of Plot $38, which will be exempt from the above law. In addition, an applicant for a Certificate of Eligibility aggrieved by any determination of the Director shall have the right to appeal such determination to the Planning Board at its next regularly scheduled work session. Mr. Latham: Second. Mr. Orlowski: Motion made and seconded. Any questions on the motion? All those in favor? Ayes: Mr. Latham, Mr. McDonald, Mr. Orlowski, PLANNING BOARD 16 NOVEMBER 13, 1990 Mr. Edwards, Mr. Ward. Mr. Orlowski: Opposed? So ordered. Mr. McDonald: Mr. Chairman even though it is not on the agenda, I would like to set one more motion. I would like to make a motion for a special meeting, this is not a public hearing but a special meeting on Friday, November 16th at 3:30 p.m. in the Planning Board Office. Mr, Latham: SecOnd. Mr. Orlowski: Motion made and seconded. Any questions on the motion? All those in favor? Ayes: Mr. Latham, Mr. McDonald, Mr. Orlowski. Mr. Orlowski: Opposed? So Ordered. Mr. RaynQr: I have spoke with staff and have requested just a minute of the board's time concerning some correspondence on the 31st of October. I woul~ like to address the major subdivision and correspondence of October 31st of Nicholas Aliano of Peconic. I wanted, number one to bring the board up on speed 'as to the problems that have incurred with trying to comply with conditional improvement. The improvements for that subdivision which were granted on July 25th, 1988. In addition, we have lost in excess of a year getting a location of a firewell from the Southold Fire District Commissioners and I would reference the board's letter to us of May of the following year of ~989 finally locating this. As a result of which Long Island Lighting in the area did not have three phase wiring and I have a copy of correspondence that I had requested from the well driller for the firewell. It took them nine months to extend the three phase wiring. The additional problem that was run into here and one that was requested by the board was the updating of the Suffolk County Department of Health Services' stamps which had expired. In reviewing this with them, they were very adamant in the fact that we are not to have any changes whatsoever in the map and could go ahead and file on that basis. Not having the well tested to see if it would meet the Southold Town Fire District Commissions specifications as well as the ordinance. We are not able to determine whether this will be a final location for that well. As a result of which we did not go forward and did not have the department of Health Services affix a stamp and record a map where we would have a variance to it. We now have a letter, and we certainly have gone over the time limit prescribed by the regulations. It PLANNING BOARD 17 NOVEMBER 13, 1990 is not something that in anyway should be construed as the applicant trying to get around doing anything that has been prescribed one of the conditions set for are the street tree plantings, we have a contract that has been let over a year and the fellow who is going to do it said "well, when you decide where you firewell is going and this, that and the other thing, I'll put the trees in". What I guess I'm asking the board is to reconsider their stance with regard to the elapsed time on this subdivision and the fact that it has been completely beyond the control of the applicant. In trying to conform with what the Department of Health wanted we have been locked into a time frame from the Southold Fire District's Commissioners which has well lapsed beyond regulations and I would ask the board to consider this and possibly be in a position to grant an extension. We have the well in, it is sitting there, we haven't pumped it because we haven't got the three phase completed from LILCO which I understand is to be done this month and the Department of Environmental Conservation has not finished the operating permit for this well. We are between a rock and a hard place. Mr. McDonald: Henry, why do you need the three phase test well? You could pump it off with any pump to see if it meets the quantity to pass the fire department. You don't need to have the electricity tested to see if it has capacity. You might need that for the final pump installation. Mr. Raynor: Well, we are trying to do everything at once. We are trying to get a completed project, a completed element of the project there. Mr. McDonald: But the only thing that would stop the compliance would be the quantity. Mr. Raynor: Exactly. Mr. McDonald: So if you could test for that, you could go ahead and do that part of it and make that part of the compliance and you would be assured that that location of the well would be sufficient. Later on you can worry about whether the actual pump meets the spec or not but you won't have to worry about relocating the well. Mr. Raynor: We pumped it and the well driller tells me that it has met the specifications but the fire district commissioners said get everything in there and then we'll pump it. Mr. McDonald: You have every confidence that this is the final resting place of the well. Mr. Raynor: At this point, yes. Up until probably two months ago, no. I had not answer to it nor do we want to file and get PLANNING BOARD 18 NOVEMBER 13, 1990 an update and then have to go back and amend the map so we are caught between two points. Mr. McDonald: The point I'm making is that the only thing that would make you move this is the quantity. Right? Mr. Raynor: Yes. Mr. McDonald: You can solve that test right now. You caT solve that tomorrow with a gas pump or something so you wouldn't have to worry about ever moving the well then you would be clear for the Health Department. Mr. Raynor: We would have to get the Fire Commissioner's to come down and do it. Mr. McDonald: Yes. Mr. Raynor: They were a year in deciding a location. Mr. McDonald: Do we have all the correspondence between you and the Fire District. Mr. Raynor: I would hope so. In fact, in the time frame that I am referencing the May 1989 is a letter from your Department. Mr. McDonald: That doesn't ensure that we have all the correspondence back and forth between the Fire Commissioner's and you. Mr. Raynor: O.K., well, I can give that because that was done by Gagen and Company. That is what I want to lay before you, I don't know if you want to give me an answer tonight, if you don't that is fine. Fir. Orlowski: We don't have a full board, but I will tell you that in other instances we have just basically taken the new application fee and proceeded from there. I don't know what the board will want to do on it. Mr. Latham: Let's wait until the rest of them are here. Mr. McDonald: I would like to make sure we have all the paperwork. If the paperwork shows that the Fire Co~m,issioner actually took this long a period of time to do it, that would have some influence on me. I would like to see that we have the paperwork, it shows that that is really the case. Mr. Raynor: Your board's letter to us in May of the following year, finally located the spot for the fire well. We lost a year there. Thank you. Mr. Orlowski: I think the main thing Henry is the Health Department too. PLANNING BOARD 19 NOVEMBER 13, 1990 Mr. Raynor: I can go in and get it updated, I can go in tomorrow but I didn't want to go in, have it updated have it filed and then not be able to pump it to the satisfaction of the commissioners. I will await your instructions. Mr. McDonald: Would you be prepared if the commissioner could find their way clear to take care of this you would be prepared to pump it off for them in any manner they prescribed. Mr. Raynor: Yes. Thank you very much. Mr. Orlowski: Good evening, Mr. Hanauer and Mr. Bagley are here. Mr. Irving Like: I'm a council to the Wickham firm. Mr. Bagley is not here, Mr. Hanauer and Mr. Kapellare here. There's an old mexican curse that says, may your life be filled with lawyers and I'm afraid that Mr. Hanauer and Mr. Bagley have been afflicted with that curse. I appreciate you giving us the opportunity to meet with you in this informal way. Back in July of last year, you wrote a letter to Mr. Kapell stating that, the Planning Board has reviewed the concerns brought up at the meeting held on June 12, 1989 as stated in the positive declaration, the upland area of the subject premises does not meet the minimum lot area requirement to the agricultural conservation A-C district and the Planning Board cannot proceed with this application as it does not conform to the requirements of the above mentioned district. If you wish upon receipt of a disapproval from the Building Department you can proceed with an application before the Zoning Board of Appeals for an area variance. The reason we are here tonight is to ask you respectfully to reconsider that position in the light of a number of equitable conSiderations that I would like to bring to your attention as well as some very practical reasons. First a little chronology I think may be helpful. Back in July of 1985 the Southold Trustees passed a resolution which authorized the issuance of a permit to build one house. In July of 1985, this is the letter I am referring to (Submitted letter). On February 19th of 1987 a memo was sent to you from Victor Lessard stating that it was his understanding that parcels containing wetlands, for purposes of determining the area of the parcel must be included in the calculations and he stated that the board should take this approach until such time as the state wishes to change this clause. Then, on May 15th of 1987 the Board of Appeals addressed the letter to the Wickham law firm and I will hand it up to you in a moment, in which it stated that the Town Attorney has advised that court decisions were rendered during 1986 indicating that wetland areas cannot be deleted when calculating the area of lots in pending or proposed divisions of land. That is this letter. That is May 15th, 1987. Now, that date is PLANNING BOARD 20 NOVEMBER 13, 1990 very important because on May 23rd of 1987 Hanauer and Bagley submitted an application for a minor two lot subdivision. On May 29th of 1987 the Suffolk County Department of Health Services sent a letter stating that the two lots were considered to be suitable for the installation of individual sewage disposal systems and I will hand that letter in. Now, as of May 29th, 1987 so far as the Board of Appeals was concerned, so far as the Town Attorney was concerned, so far as the courts were concerned, if you came in with an application and there was wetlands or land under water on your property, you would none the less have to count that towards density. In May of 1987, these applicants, I believe, had a right to proceed with a two lot subdivision. A building permit was issued on July 23rd, 1985 to build the first house so what you had before you in May of 1987, was a two lot subdivision under which a building permit had been issued for one house and then in August of 1987 the foundation was installed. Mr. Orlowski: The building permit was issued on one lot. Mr. Like: I understand that, it was issued on one lot. Mr. McDonald: There was a lot and a building permit was issued for one lot. Mr. Like: Then there was an application for a two lot subdivision on which that one lot on which the building permit was issued was shown and located. In August of 1987 the foundation was installed° Now, it wasn't until February of 1989 that you amended your zoning ordinance to prohibit the calculation of land under water towards computing density and I believe, correct me if I'm wrong, that it was on the strength of that amendment of the ordinance which led you in July of 198~ to say that you could not proceed with the application. Now, there is a lot of case law an~ I won't burden y~u with it now, whidh states that where you have a map pending before a body such ~s the Planning Board~ where you have a permit that has been issued or you have the commencement of physical construction on the property pursuant to the permit, the applicant has the vested right to proceed. Put that aside for the moment because I said earlier that I want to deal with e~ities of the situation. Now you have suggested that the applicant go before the Board of Appeals. The Board of Appeals has already expressed itself and the correspondence before you indicates that the Board of Appeals believes that the land should be counted towards density. Furthermore, as you know, when you seek a variance you have to establish before the Board of Appeals that you will suffer significant financial injury if the variance has been denied. We have consulted with an appraiser and we have an appraisal report indicating that if a variance is denied so that this owner is limited to one house he will lose approximately $130,000.00. That is the value of the building lot in this area based on market data and comparable sales. We believe that going before the Board of Appeals we could make a case of PLANNING BOARD 21 NOVEMBER 13, 1990 significant financial injury that would justify getting a permit to complete a minor subdivision for two lots and we think it would be a waste of the board's time to come forward again with all of the layout that would be incident to that procedure. Now, here is a practical consideration that I said I would discuss earlier. You are aware of the problem that has been caused by the business with the pond. Primarily, what has been happening is storm water drainage from the town road carrying with it contaminants gets into the pond on the Hanauer property and the overflow of storm waters also causes the pond to rise and to swell beyond its normal configuration. We have commissioned a report by the Barrett Engineering Firm and they have informed us that based on the preliminary investigation of the area, approximately 1300 linear feet of town roads, Soundview Avenue and Lighthouse road drain directly to the low point on Sound View into the ponds on the Hanauer property and on the property to the North. The only drainage that is provided by the town are two twelve inch metal pipes on the south edge of the pavement of Sound View Avenue draining into the pond onto the Hanauer property and a culvert which connects the two ponds. Mr. Barrett, we've asked him to do a more detailed analysis but he has already indicated that a minimal amount of drainage that would be necessary to correct the situation on the town road would be a substantial dollar amount so we have a situation where we're being denied the opportunity to build two lots and we are confronted with a condition of flooding which comes from a town road and we are left with a situation where there is significant financial injury. What I would like to do now is introduce Mr. Hanauer and ask him to submit to you a proposal which would involve your permitting him to go forward with two lots and a suggestion as to correct the drainage problem. Mr. Sanford Hanauer: As Mr. Like has indicated the following would be my suggestion or a suggestion. Being that the elevation of the road is I believe around fifty feet and the low point which is on the adjoining property whichis about forty-seven to fifty in this area. What happens is the water runs into the pond and when it reaches its crest it backs up through the culvert floods the neighbor to the north. Several years ago, about a year ago, there was a berm doWn here that was placed there by a farmer some twenty odd years ago, I Understand, was cut open and released the water on the property to the south which is the Too Bee Property and created a wetland area. Being that this is the low point, what we would like to suggest is being involved in the Too Bee Proper~y also. The best way to control the water here is to create some sort of a drainage system in this northwest corner of the Too Bee property whereby with a pipe controlling the level of the pond so this way the water could continue to spill into the pond and be controlled by a level in here and we are willing to give the town an easement to a section of this property to construct such a drainage ditch and I think that would solve everybody's problem. PLANNING BOARD 22 NOVEMBER 13, 1990 Mr. McDonald: How long have you owned this property? Mr. Hanauer: About five years. Mr. McDonald: The pond was there when you bought it. Mr. Hanauer: Yes. Mr. McDonald: The drainage situation was approximately the same at the time you bought it. Mr. Hanauer: I wrote a letter to Ray Jacobs asking him when the culvert was installed and I have a photograph showing this road without any disturbance to the blacktop. Mr. McDonald: Was this pond here at the time you bought that? Mr. Hanauer: Yes. The pond showed on the original maps in 1873 without a road. Mr. McDonald: So it was one pond. Mr. Hanauer: It was one pond so I think what happens there is the water starts up here and flows into this pond and then when it really overflows onto the road in the winter time when there are icy conditions it becomes hazardous and I think that is why the Highway Department put the culvert underneath the road to avoid the spillover onto the road and as a result more water comes into our pond. Mr. Orlowski: Did you ever get a variance to put that foundation in so close to the pond? Mr. Hanauer: Yes, at that time fifty feet was required. Mr. Orlowski: This is forty-six feet. Mr. Hanauer: Well, the pond has changed since this last survey was taken. Mr. McDonald: This foundation is in compliance with all the regulations? Mr. Hanauer: That is correct. Mr. Orlowski: I think it was suppose to be seventy-five. Mr. Hanauer: At the time, we originally wanted to put it on the edge of the pond and they asked for a fifty-foot setback. Mr. McDonald: And you are forty-six. PLANNING BOARD 23 NOVEMBER 13, 1990 Mr. Hanauer: Well, that survey was made after the wetland survey so we have had changes in the elevation of the pond, it fluctuates. Mr. Orlowski: I can remember and I go back a little ways. This was in a long, long time ago I even think before you owned it. Mr. Hanauer: Which? Mr. Orlowski: This piece of property on a subdivision. Mr. Hanauer: It was previously owned by a family called Stefenson, we purchased from them. I really don't know if they had made any applications. Mr. McDonald: We've been told that the DEC had an order to close the opening that had been created in the southern part of the pond, is that correct? Mr. Hanauer: That is correct. Mr. McDonald: Has it been closed? Mr. Hanauer: Yes, it was closed. The DEC asked us to do it and we complied. The ditch showed on this map. Originally, we had a negative declaration on this piece of property and then when this water was let out onto this property it was a request from the Town Trustees to go back and they designated it as a wetland. But we requested when the dike was put back, if they would go back six months and examine it they would remove the wetlands designation. Mr. McDonald: Well, the subdivision map shows the buffer no matter what the Trustees would do in the future that shows in the subdivision map with this other property. Mr. Hanauer: Which property? McDonald: For this wetlands, so whatever the Trustees say that would remain in the subdivision map no matter what. Mr. Hanauer: Well, O.K., but if it was found that this was done illegally by creating the wetland, we know it was cut open we have evidence, we have a document from the Police Department and the Bay Constable has it. Ms. Scopaz: You said earlier you are proposing drainage. putting in a pipe would that not in effect establish the wetlands permanently? By Mr. Hanauer: No, not unless you put in a storm drain or a sump. PLANNING BOARD 24 NOVEMBER 13, 1990 Mr. McDonald: Why that rather than just a natural drainage area? Mr. Hanauer: I'm not an engineer. Mr. McDonald: How much do you envision lowering the Water table, not the water table but the level of the pond? Mr. Hanauer: We would like to keep it at a level of roughly forty-seven. ~ Mr. McDonald: And its present level is? Mr. Hanauer: I think now it is way up, I think it is about forty-eight. Mr. McDonald: So you envision lowering the level of the pond? Mr. Hanauer: Just to control it so it doesn't back up and allows for heavy rainfall and drainage, it's like a valve. Mr. McDonald: See, these are two problems. One is a drainage problem. You're talking about drainage from the town road to your property which is really not in our province in a sense. The other one you are talking about the actual subdivision of the property which clearly is in our jurisdiction. Mr. Hanauer: The Planning Board has the power to deal with conditions with this sort here and solve these problems and if what we are suggesting is that (inaudible) minor subdivision you can also solve the problem that otherwise might burden the tax payers with the town that would be prudent on the part of the Planning Board. So I think your powers are considerable and we are proposing a solution which we think will not only take care of the two lot subdivision but take care of a festering problem that has caused nothing but acrimony. Ms. Scopaz: If you are proposing to allow the two subdivisions to be considered as one piece of property for purposes of drainage .... Mr. Like: No, what we're suggesting is that Mr. Hanauer will consent to burden another piece of property of his by either creating a storm drainage easement or dedicating it so that it serves as a safety valve to prevent flooding from occurring on a town road and from flooding occurring on his property and the neighbor to the north. Incidentally, the other point I would like to make is that under none of the proposals that are being presented to you will there be any disturbance to the pond. The pond will be kept as a resource and it will be kept as open space. Whatever buffers you feel are necessary will be established, we even could, as part of any arrangement with whoever buys these properties create a two party homeowners association with covenances protecting the pond. If we had presented this to you as a cluster, we could have given you a PLANNING BOARD 25 NOVEMBER 13, 1990 map with three lots, two of them being lots on which the two buildings were to be constructed and the third lot being the pond and that could be protected in some fashion to be dedicated and be protected. Mr. McDonald: Do you have a sketch plan on this? Is there a sketch plan approval? Is there any approval? I'm not the Board of Appeals so I'm not going to get into it really but you are essentially saying your vested but you don't even have a sketch plan approval. Mr. Like: I know, I'm saying that there was a minor subdivision submitted. Mr. McDonald: Where is it, where is the sketch plan? Mr. Like: There was a application submitted. Mr. McDonald: You don't even have a sketch plan approval on it though. I mean where is the vested? Is there a sketch plan approval on it? Mr. Kappel: We applied in May of 1987 for a subdivision application. Subsequent to that a determination of a requirement that we file a long form environmental assessment was made by this board. I prepared and filed a long form environmental assessment which the board found inadequate and suggested that we hire a professional to do the same thing which we did. We hired En-Consultants from Southampton and filed a new long form environmental assessment which specifically addressed the comments of the town's engineer at the time in response to my original filing. We submitted the amended or revised assessment. The town engineer proceeded to re-review the original filing that I had made as opposed to reviewing the filing that En-Consultants provided which resulted in at least a three or four month delay. When we finally received the town engineers seconds review it became obvious that he had reviewed the same document twice. So then the town retained the services of Dave Emilita's firm and Mr. Emilita proceeded then over a three or four month period to finally review En-Consultants submission. Upon the completion of that review, Mr. Emilita suggested that there was a necessity for a survey of the potential for impacts on endangered wild life and animal species, so we contracted with Hampton Manor Associates to conduct such a survey at considerable expense. The survey was completed and submitted and as a result of all of these submissions the Planning Board then made a positive declaration on the long form environmental assessment. We did have a scoping session and that was, I believe in June or July of 1989 and that's where the thing left off. At that point, and during this period of time, the Town Board amended the zoning such that the requirement that the wetland area be excluded from the computation for density purposes. It was altered. Meanwhile, we had diligently pursued all of the steps that the PLANNING BOARD 26 NOVEMBER 13, 1990 Planning Board had laid out, operating under the assumption that the wetlands were going to be included in the density calculation, thousands of dollars were spent and a considerably amount of time elapsed. The fact that the Planning Board didn't take action on it is of no fault of ours. Mr. McDonald: We had a scoping session? Mr. Kapell: We had a scoping session yes. Mr. McDonald: And you submitted an impact statement? Mr. Kapell: No, we never submitted a draft environmental impact statement because at that point we were told that we had to go to the Zoning Board. In other words, two years elapsed. Essentially what happened was two years elapsed during which time we complied with various requirements that were set before us. Mr. McDonald: Let me see if I understand. You had a scoping session, you never submitted a enviromental impact statement. In the meantime, you've gone to the Zoning Board of Appeals. Mr. Kapell: No, no. We didn't, we elected not to. Mr. McDonald: You elected not to but you took no other action as well. What other action did you take after that? Mr. Kapell: We haven't done anything since July of 1985. Mr. McDonald: So you didn't submit the impact statement and you did nothing else. Mr. Kapell: No, there was no point in submitting an impact statement if we were going to have to go to the Zoning Board first and get a variance. What was the applicant to gain by spending several thousand dollars in more time preparing a draft environmental impact statement when in fact the Zoning Board might very well turn them down. Mr. McDonald: But you would have had to have it for that too. You would have had to have the SEQRA process at the ZBA as well. Mr. Kapell: The point is, is that at that point and if I can speak for you Sandy, at that point, the whole question of the town's disposition towards this application became a subject of discussion because the rules essentially had been changed in mid stream. The question of the inclusion of the wetland area into the density calculation had never been an issue until the scoping session. Mr. Orlowski: It's been a year and a half and now your back here telling us that you have some type of status. PLANNING BOARD 27 NOVEMBER 13, 1990 Mr. Kapell: Well, we waited two years to get to the last point. Mr. Like: The answer to that Mr. Orlowski, is that my client has been stunned and it was that dilemma of being caught between a rock and a hard place that led them to consult me and I reviewed the file and we're here tonight in the interest of working this out in an applicable way and that is why I started out by saying we think the equities here suggest, as well as the practicality suggests that should allowed to proceed. We don't think that being allowed to build two lots will be injurious to the environment. We believe that all of our consultants have come to that conclusion. Nobody has negative..., nobody has come forth and said you are going to hurt the pond in anyway. Mr. Orlowski: Well, there hasn't been any formal impact statement. Mr. McDonald: The process hasn't been entered into it. Mr. Like: We are perfectly prepared to defend the two lot subdivision as being one that is compatible with good environment practices We are perfectly prepared to protect the pond in any reasonable way. We are prepared to adopt whatever mitigation proposals the Planning Board makes as well as the DEC, if the DEC is interested and my experience is that a project of this minimum size can be handled in a matter that is compatible with good planning. We don't think we are asking a great deal to be allowed to go forward. Especially, when not to go forward means a substantial loss financially for the client. Mr. McDonald: I don't see how we can do anything, I mean the section of the code that is applicable here about his density is in the Zoning section of the code and that is clearly in the province of the Zoning Board of Appeals. We can't simply waive that requirement. If it was in the subdivision section, if we thought it had equity we could but since it's in the Zoning section any relief from that section of the code would have to come from the Zoning Board Appeals. I'm talking about the section about deletion, the present existence in the code, the deletion of wetlands is in the zoning section. Not in the subdivision section. Mr. Like: The court cases indicate that where you have an owner who would be entitled to the density under Section 281B certainly in this instance we would be entitled under Section 281B of the town law or under your cluster to come in with two lots that we are entitled and to go forward with two lots not withstanding the local ordinance of the type you're talking about. Mr. McDonald: That determines the actual yield. You haven't determined your yield yet. PLANNING BOARD 28 NOVEMBER 13, 1990 Mr. Like: I'm saying the case law consisting of Forte versus the Village of Worwick, the Done Company case, friends of Shawangunks, Inc. all say that where the owner has the right to a cluster under Section 281B of the Town Law, which we obviously do in this case, that that gives him the yield and that under those circumstances you can't delete land under water from calculating density. Mr. Orlowski: I think that was a minimum of ten acres to wasn't it? Mr. Like: No, your cluster provisions allow you to go forward with less than ten acres. Back then you didn't have the requirements. Mr. McDonald: You're not required to cluster at the present time. Mr. Like: I'm saying that from the standpoint of vested rights that we believe we have right now to go forward. Mr. McDonald: But you're not a cluster subdivision, there would never be any question if it would be a cluster. What is your total acreage? Mr. Like: 4.9 acres. Mr. McDonald: The code doesn't talk about cluster until you're ten acres. Mr. Like: No, that's when it is mandatory but we can apply for a cluster under B of that Section of your Zoning ordinance. You have the right to mandate cluster if it is more then ten acres but you and your discretion can treat this as a cluster and we can apply for cluster. I'm simply asking you to exercise your discretion in an equitable manner here to treat this applicant as one against who the rules were changed in middle of the procedures. Mr. Orlowski: Well back then, and being on the board, it was written in the code it was '"land subject to flooding" left a lot of things open and we were having some problems with it. Back then the board felt any land under water was unbuildable period. As policy we stuck to that. In this case here I would say we would be on good grounds and sticking to our policy that this isn't wetlands or land subject to flooding, we're talking about land under water and that is why even now brought it up to send it before the Zoning Board of Appeals. You know this isn't even close. One half is under water and one half is above. Ms. Scopaz: Mr. Chairman, I would just like to mention one thing. I understand your argument but I do want to point out one thing, the statement that was made earlier that in 1989 when. the Town Board changed the Zoning Code. The things that you are PLANNING BOARD 29 NOVEMBER 13, 1990 asking the Planning Board to do are not within their jurisdiction. They were determined by the Town Board, by the adoption of the zoning code, and there was no grandfather clause built into it and that was something that was made very clear to this board. The town board does not care at what stage a subdivision was in, if it does not have final approval then all the rules of the game have changed. The town board is quite aware that it has done that. Your arguments about the vested interests have to do with the building permit application and that is not a matter before the Planning Board. If you have a question about whether your foundation is vested that is an issue that you would take up before the Zoning Board of Appeals. The way the code currently stands, my understanding is, you have to go to the Zoning Board to ask for the relief, and present your case to the board, including all the case law that you've sited. I don't think that this board has any jurisdiction, it says very clear, in the code, whether they would want to or not. Mr. Like: I respect your comments and I am aware of what we would have to do before the Board of Appeals, but what I am trying to do however, is to see whether or no~ there is a basis for a practical solution that will accomplish not only the end results of fairness for everybody concerned, but also solve a drainage problem. Now, what is your, and I am seeking some guidance now from you, what is your sense as to how you would regard an application for a cluster where we would present you with a site plan showing let us say three lots. Two of which would be the lots on which the buildings would be built and the third lot would be the pond. We have certainly the amount of area to have a cluster. Mr. McDonald: We would deny it for lack of variance and you would go to the ZBA. That section of the code is very clear that that is deleted. It doesn't talk about whether it's cluster or not cluster that's section 239. That section says that if it is underwater it is deleted from the yield calculations. Now, we don't have the power, even if we saw merit in this we don't physically have the power over that. If the case that you are siting is correct the ZBA is still the place to do that. I don't see how we can get into their section of the code and tell them what to do. Mr. Kapell: To carry this on a little bit. Say the applicant decided to apply for the variance wouldn't the zoning board ask this board for a recommendation on the variance? Mr. McDonald: On the basis of something that was submitted they would ask for our comments. Mr. Kapell: They would ask for your recommendation wouldn't they? PLANNING BOARD 30 NOVEMBER 13, 1990 Mr. Like: Do you see any equity in this situation? Are we just wasting our time tonight or our we trying to get through to you that what's happened here is unfair to this applicant. This applicant pursued every request that was made by the Planning Board and the ground was cut out from under him. Mr. Orlowski: I really don't see that. I'll have the town attorney review this with us. You know you also waited another year and a half to come back in and there is no sketch granted here. The Planning Board, and I told you our policy before, this land was under water so we did not entertain and sent it to the ZBA. Mr. Like: The ZBA at the time you sent it to them said you have to count that land even though it is under water. When this matter was originally brought to the attention of the ZBA they said you've got to count it under water, the town attorney said you've got to count it under water, the court said you had to count it under water. Then while this application is pending, and this applicant is breaking his chops and spending his money getting all the studies you want, and the town board goes and changes all of the rules. Now, if that doesn't sound like equity, I think I would be very much surprised if you would not feel deep down that something here needs attention and needs direction. That is not fair. That is not fair play with this applicant. Now, you can say to me you don't have the power but I know you know deep down that this guy was shafted. This applicant was shafted and he stands to lose $130,000.00 plus all the other monies plus the delay and you're forcing him into an issue where he's got to go to the courts. We don't want to go to the courts. We would rather sit down and work out a solution that is not going to hurt anybody. Mr. McDonald: We're not telling you that. In fact, if you went to the court at this point, again I'm not a lawyer so it's only the way I understand it, you wouldn't get anywhere in the courts now until you went to the ZBA. You would have to exhaust all your local possibilities before they would entertain it. The next step with this is the ZBA isn't it? Mr. Like: I would be very happy to talk to the town attorney, you might mention to the town attorney the case of DuVail vs. Ross. Mr. McDonald: I'll be happy to let you take care of that. Mr. Like: Whether it's a Planning Board or a Zoning Board of Appeals or any kind of a board, if an applicant is delayed and because the delay is prevented from getting vested rights he is entitled to relief from the courts. Mr. Orlowski: That's if you were delayed. Mr. Like: There is no question that we were delayed. PLANNING BOARD 31 NOVEMBER 13, 1990 Mr. McDonald: Where is your impact statement that you were requested to do? Mr. Like: I explained to you that if you're telling the applicant "we're only going to give you one lot but we want you to spend $10,000.00 on a full impact statement. Mr. McDonald: You don't have to determine that in advance, the impact statement is part of it. Mr. Like: But you have already determined that you are not going to give him more then one lot why should he spend $10,000.00 on a full impact statement. After he gives you the impact statement you'll say "sorry fellow you've got only one lot". Mr. McDonald: But his contention all along that he has two lots. Mr. Like: But you told me he didn't have two lots. Mr. McDonald: If we tell you now that you don't have two lots then you're going to go to court. Mr. Like: You're saying to him we're not going to give you two lots go get an impact statement. Does that make sense to get an impact statement after you tell him. Mr. McDonald: I wasn't here so I'm not sure but there was a scoping session that you entered into. Mr. Hanauer: We requested a scoping session and two people appeared at this scoping session. Melissa and Eh-Consultant and the first question we asked was why was there a change, why were they deleting the calculation of the water? No one could answer that. Your new consultant said we have to do whatever statement has to be done before we talk about anything else. I said, well we have to get this question answered and we can never get it answered. We started out initially as a variance then when they said you could oalculate the water as part of it, we were told to change it to a minor subdivision after going through two years of all the shenanigans and everything that was asked for. We come back now and now we're back to a variance. Mr. McDonald: I guess I know what is really confusing here, the problem I have a problem with, why do you need a scoping session with the Planning Board at all, hold it, if your not trying to get a subdivision. Mr. Hanauer: You called a scoping session, we didn't call it. Mr. McDonald: Why are you even talking to the Planning Board if it's a single lot you would be with the building inspector. The mear fact that you are with us means that you are trying to PLANNING BOARD 32 NOVEMBER 13, 1990 subdivide the property and the scoping session must have been about that subdivision property. Yes or no? Mr. Hanauer: When we received the positive declaration with a letter from Mr. OrloWski, we questioned it because we wanted to talk about it. That's what we wanted to talk about. Mr. McDonald: It must have been about a subdivision though, it couldn't have been about anything else. Mr. Kapell: What it all boils down to if we were taken by complete surprise that after two years of attempting to pursue the subdivision and complying with the various requests that had been made of us to supply information in order for the board to advance the subdivision that we were at that point advised that the wetlands, that underwater area was going to be deleted from the density calculation. That's the problem, that's the hub of it. Had we been advised of that at the onset, that the position that the zoning board had taken that it should be included was not going to be respected by this board, other avenue's might have been considered at that point. What the beef is here is that that wasn't put forward and then as a result a considerable amount of time and expense were expended by the applicant. That's the issue and that is where the question of fair play arises. So now what we are saying to you I think, is that rather than go ahead now and spend another several thousand dollars on the draft environmental impact statement, and five hundred dollars or whatever the new fee is to apply to the Zoning Board for a variance, knowing that that variance application has to come back before this board for recommendation. If you guys are going to recommend against it. Mr. McDonald: Well, I for one will not give a recommendation before the time that they ask for it. I don't even know what you are going to go in front of them with. You can tell me here but that's no guarantee of what is going to come from them. I am not going to put myself in the position of telling you something before I really even know what it is. I understand you are trying to operate in good faith but from my standpoint how can I possibility do that. You want me to tell you all the answers in advance and I won't do it. Mr. Kapell: I think essentially what, and I don't want to take your chair Mr. Like, but I think essentially what we are asking you for is to give consideration to the fact that we were encouraged to pursue this application on the assumption that the position of the Zoning Board had taken with regard to the underwater land would be respected. That is really what it boils down to. Now the question is, can we pursue it on the original assumption? If not, then I think it is up to Mr. Like and Mr. Hanauer. Mr. Like: I would like to suggest that you confer with the Town Attorney on this particular matter and see whether or not he PLANNING BOARD 33 NOVEMBER 13, 1990 feels there isn't some way that this can be resolved at the Planning Board level if he feels not, if he feels that you are powerless then we will understand. If he feels that you are powerless but we have some equity based on the presentation that we have made then we would hope that we would get a favorable recommendation for the Board of Appeals. We don't plan on making any drastic changes, we have shown you what we have in mind, whatever we showed you is what we're going to show the Board of Appeals in terms of seeking their approval. On that basis we were hoping that by meeting with you today, we could have some indication from you without a commitment because certainly you would want to see the final papers before you committed yourself. We need to have some encouragement before we go ahead and spend a lot more money and time on this. Mr. Orlowski: Well, I think the board has agreed that our hands are tied as far as what we can do and I think that you will have to go to the Zoning Board of Appeals. We will talk with our Town Attorney. Mr. McDonald: Should Mr. Like actually discuss it with the Town Attorney? Mr. Orlowski: Well, he has that option and I would like to discuss it with him first also. I don't see that we can do anything. This board has made no decision one way or the other for or against, I'm sure we are going to have to want for a impact statement and make our recommendations after that. Mr. Like: You do understand that we are reluctant to present you with a impact statement. Mr. Orlowski: I do. Mr. Like: When we know that you will not give two lots. Mr. Orlowski: Well, we can't. Mr. Like: Whether you can do it or not is in my book something to be discussed with the Town Attorney. Mr. Orlowski: When you go to the Zoning Board of Appeals is when you are going to have to prove a hardship of some sort. Mr. Like: Well, I think $130.000.00 bucks is a hell of a hardship. Mr. McDonald: You will not proceed to a decision from them without the SEQRA. I mean, they will not do it without the SEQRA process. Mr. Kapell: Nobody proposes to evade the SEQRA process, that is not the issue. PLANNING BOARD 34 NOVEMBER 13, 1990 Mr. McDonald: What I am saying is, almost any route you take except simply forget it, you are going to have to do this. Mr. Like: It is a matter of timing. If we are told by the Board of Appeals, we approved your variance but you still have to go through the SEQRA process. Mr. McDonald: No, no, they will not, they cannot do that. They can't take any action without that in place. It will be done before they make any determination what so ever. Otherwise, it won't be legal. Now, I hope you get in touch with the Town Attorney., I would loOk forward to the Town Attorney's comments really. It is interesting. Mr. Kapell: I think really what the question of hardship revolves around is this assumption that the Zoning Board of Appeals original position with regards to whether or not the wetlands were going to be included. Mr. Orlowski: The Zoning Board of Appeals assumption and our policy can be two different things. Mr. McDonald: If that is the case, they would take that into account in their decision. Mr. Kapell: You are both under the same roof. We're on the outside. You are all under the same roof, I don't think it is unreasonable for an applicant to assume that two boards in the same town would have some coordination. Mr. McDonald: Coordination yes, but that does not necessarily mean that we are going to either be in agreement or that we would completely overlap what we are doing. Mr. Kapell: But let me say in all fairness there was never any correspondence from this board or anything on the record to indicate that this board disagreed with the ZBA's determination. We were lead along for two years filing these various documents and the first indication that this board was not going to honor the ZBA's position with regard to that question was when the positive declaration came along two years after we applied. That is the problem. Mr. Hanauer: Why did you put us all through those steps? Mr. McDonald: What we don't have the power to do, we can't do. I mean I would love to be able to just kind of solve problems like that but other people have authority in certain areas and I will not infringe on their authority anymore than I would allow them to do ours. The ZBA cannot subdivide property. We wouldn't allow it but at the same extend the kind of relief you need under the code comes from them. It really comes from them. Now, if the Town Attorney has an opinion that is really different to that and it is his opinion and he has case behind PLANNING BOARD 35 NOVEMBER 13, 1990 it and it is a general agreement, I don't think we are close to that but, on the basis of what I read I just don't see where we have it to do for you. We just don't have that power to do it for you. Mr. Like: You have the power to recognize the equities in the situation. You have the power after having heard the equities in the situation to make an appropriate comment to the Board of Appeals. That you do have the power to do because that is recommendatory and that the Board of Appeals either considers it or doesn't consider it and I take it they take seriously what you tell them. You now have a better understanding of the hardships that have been opposed upon this applicant and how they have arisen and I think that we are not asking too much of you to give serious consideration to making a positive recommendation to the Board of Appeals. We will then go forward and do what we have to do with the Board of Appeals including whatever SEQRA documentation is required. Mr. Orlowski: Any recommendation from this board will not come through until the SEQRA process in finished. You are on a very fragile area there and there are a lot of questions to be answered. When you say you can build a house without any impact, that is what you are going to have to prove and this board would want to see that. The Zoning Board will ask for our recommendation and we will make our reco~L~endation and they are going to decide whether it is a hardship. I mean, we are out of it and we haven't made a recommendation to deny or approve this one way or another since day one and what you say was a delay well, maybe it was or maybe it wasn't but you waited another year and a half to come back and tell us that we were dragging our feet. I think that the way the code is written right now you have to go to the Zoning Board of Appeals. Mr. Like: You said the rug was pulled out from under this applicant you know suddenly and without warning after he spent a lot of money and was led to believe based on what the Town Attorney has said and what the Board of Appeals have said that you cou~t it and then you have a change that says you can't count it and that is the classic situatio~ where courts of law say there are equities here which should be respected and what we are saying to you is that you believe you don't have the power then the very least you can do is to say to the Board of Appeals, this applicant has an equity and the Planning Board assuming your satisfied with the environmental analysis we'll recommend he be granted his variance. We will take care of the financial part. We will demonstrate to the Board of Appeals what the financial injury is going to be but it woUld certainly be helpful for the Planning Board to make some comment which is not negative to our chances before the Board of Appeals. Mr. McDonald: I think our determination is going to be built on planning considerations the equity won't enter into it. That is PLANNING BOARD 36 NOVEMBER 13 , 1990 a job for the Zoning Board of Appeals. There's criteria that has been handed down under who knows how many court cases. Mr. Like: I have been going before Planning Board's for the past twenty years and you can't tell me that the Planning Board is unmindful of (inaudible) that is simply not true. Mr. McDonald: The recommendation we're going to send to them is going to be based on Planning consideration. They will entertain the equity question. That is their job and that is really their job, that's their expertise. In this case we're not going to substitute our jobs for this, we're going to look at this on a planning basis. That's what they ask us our recommendation on. They don't need our opinion on the equity of it, there are going to actually make a determination. They are going to use their judgement to make this determination, not ours in that matter and we're going to comment on the planning aspects of it. I think if you have case, go. If you have it then you will win. If you do not, you will not. Mr. Like: Are there any other questions you have at this point? Mr. Orlowski: Not right now. We'll talk with the town attorney. Mr. Hanauer: How do we address the drainage? Ms. Scopaz: Can I make one suggestion. I think it would be useful for the record if you would condense your presentation in a letter, if you can present your presentation that you made earlier this evening into writing and this way we can use that as the basis for our discussion with the town attorney. In other words he would have something in writing so that we are all talking about the same thing and it would also be in the file for the record that you're pursuing this matter and I think that that would just be useful just to make sure that in our discussion with the town attorney that we're touching on the same points that your touching. Mr. Like: Could I get a transcript of the tape which will be helpful to me in composing such a summary. Mr. McDonald: It will take time. Mr. Like: If you'll furnish me with a transcript it would be a great help. Could you give me a copy of the tape? Mr. McDonald: With our facilities I would'nt absolutely count on it. Mr. Latham: Let's keep the thing going one way or the other. Mr. Like: Thank you. PLANNING BOARD 37 NOVEMBER 13, 1990 Mr. Hanauer: We didn't discuss the drainage? How do we resolve the drainage? Mr. McDonald: If there was a subdivision, assuming you got through the ZBA and you had whatever variances, whatever drainage problems existed on the site would have to be dealt with within the Planning process. At that time, I would think in conjunction with the Highway Department that we would be able to solve the drainage problem. We have to solve the drainage problem. Then, I think that would finally fall into our laps. We would count highly on the Highway Department and their comments on the subject and our consultant as well. Mr. Hanauer: You'll be looking into that in the meantime? Mr. McDonald: No, for anything you've submitted we would have to send to the consultants and they would want money for that, for the reviews and to do it before there was anything in the way of approvals would be premature. Mr. Hanauer: I mean regardless, even if we didn't get the approvals we still have the drainage problems. Mr. McDonald: If it's not a subdivision, we no longer have any power over it. I'm not denying the problem no matter how you look at it. It's whether we have the power to do anything about it. As a subdivision, the drainage would be in purview but as a lot, it is not within our purview anymore. We no longer have any power over it. Mr. Hanauer: Who would then? Mr. McDonald: The Highway Department. Mr. Like, Mr. Hanauer, Mr. Kapell: Thank you very much. Being there was no further business to come before the board, the meeting was adjourned at 8:30 p.m. Jane Rousseau, Bennett Orlowski, Jr., Cha~an