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HomeMy WebLinkAbout1000-56.-4-19" i ¢o¢ t_ A PLANNING BOARD MEMBERS Bennett Orlowski, 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 SCO'I'Y L HARRIS Supervisor Town Hall. 53095 Main Road P.O. Box 1179 Southold. New York 11971 Fax (516) 765-1823 MEMORANDUM TO: FROM: RE: DATE: Gerard P. Goehringer, Chairman, and Members of the Zoning Board of Appeals Bennett Orlowski, Jr., Chairman Appeal No. 4091 - Change of Use for Eugene M. SCTM # 1000-56-4-19 & 24 July 28, 1992 LaColla This is in reference to the above-noted appeal which will be the subject of a reconvened hearing at the Zoning Board's July 29th meeting. We have two areas of concern: one dealing with the environmental review, the other with the nature of the application itself. We have reviewed the minutes and other testimony submitted to the Zoning Board since our last memorandum, and wish to share the following observations. There are problems with the environmental review that should be addressed. First, the Negative Declaration issued by the Zoning Board refers to this proposal as an Unlisted Action. The subject property lies within 500 feet of the Critical Environmental Areas of Ashamomaque Pond and Peconic Bay. (The Board of Trustees designated all of Ashamomaque Pond north of State Route 25 as a critical environmental area in 1989 and 1990. Attached is copy of their resolution. Suffolk County desginated Peconic Bay as a critical environmental area, effective February 21, 1989.) Ail properties within 500 feet of a critical environmental area are Type I actions. A Type I action requires a coordinated environmental review of the Long Environmental Assessment Form. The Planning Board finds that the environmental review cannot be segmented by reserving an in-depth review of this appeal to some later date when applications are made for site plans or subdivisions as the case may be. Accordingly, if the Zoning Board decides to continue to review this appeal for a use La colla July 28, 1992 Page 2. variance, the Planning Board wishes to be one of the coordinating agencies in the environmental review. Second, the Negative Declaration states that "The square footage of land to be affected by use or building areas...is less than 60,000 square feet." There are two matters of concern here. The first is that there is a discrepancy between these facts as stated in the Negative Declaration and the testimony set forth by the applicant's attorney at the past hearings, along with the signed affadavits of Andrew Stype and Timothy Rumph about the amount of upland that is the subject of this petition. The amount of upland that is zoned R-80 and the subject of this petition ranges from the 60,000 square feet mentioned in the Negative Declaration to 4 acres by Mi. Rumph to 5 acres by Mr. Stype to the 4.5 and 5.4 acres mentioned by Charles Cuddy at the hearings. Which leads to the second matter: the lack of a plan showing the precise boundary of the wetlands (or the uplands for that matter) and the lack of corroboration of that boundary by the Trustees. The Negative Declaration does not include a clearly marked map showing exactly what property is included (or not included ) in the appeal, and what portion of the property is considered to be the 60,000 square foot upland area. The map that was received by the Zoning Board of Appeals on June 23, 1992, shows a highlighted area, which shows the approximate area of the 60,000 square foot upland area mentioned in the Negative Declaration. However, the map lacks the surveyor's boundaries and calculations of the 60,000 square feet of upland area. To eliminate confusion, a revised map should be circulated during the coordinated review. This map should show the precise, scaled boundary of all portions of the property for which the use variance is being requested. And the calculations of upland area in both the R-80 and MII zones should be noted separately by the surveyor. Our review of this file and the latest developments has reinforced our opinion that this change of use application properly belongs before the Town Board as a change of zone application. The facts: that this application involves more than one use, includes land that lies in more than one zoning district, and asks for uses that, save one, are not allowed in either of the two districts, are the most compelling factors influencing this conclusion. La Colla July 28, 1992 Page 3. To explain further, first, the applicant is requesting permission to add or expand uses which, with the exception of the restaurant, are not allowed in either the residential zone or the marine business zone. The restaurant use is allowed in the MII zone by Special Exception. Second, the applicant is asking for permission to introduce unnamed, multiple uses to a total of 5.4 acres of land. Typically a use variance involves asking the Zoning Board to allow a single, specified use on a site whose zoning does not permit that use. In this case, the applicant is asking for permission to have several uses, each of which save one, is prohibited in both the residential and the marine business zones. Since the uses are numerous, (in some cases non-conforming) and will be situated on more than five acres.of land zoned for both Residential and Marine Business uses, along a stretch of a heavily travelled State Road, it is evident that the cumulative immpact of this change will be tantamount to a legislative change or a rezoning. If you were to proceed with this application, you will have approved a change of such magnitude that it will have the practical effect of negating the intent of the Zoning Map in that area. Section 23.59 of Anderson's New York Law and Zoning Practice and the cases cited in this section bear this out. A copy of Section 23.59 of Anderson's and two pertinent law cases are attached for your convenience. The applicant may indeed have a valid case, but the petition by its very nature and magnitude properly belongs before the Town Board. cc: Board of Trustees ' TRUSTEES John M. Bredemeyer. III, President Henry P. Smith. Vice President / Albert J. Krupski, Jr. / John L. Bednoski, Jr. John B. Tuthill Telephone (516) 765-1892 BOARD OF TOWN TRUSTEES TOWN OF SOUTHOLD SCOTT L. HARRIS Supervisor Town Hall, 53095Main F P.O. Box 1179 Southold, NewYork ll~ Fax (516) 765-1823 Telephone (516) 765-18 January 17, 1990 THE FOLLOWING RESOLUTION WAS ADOPTED BY THE BOARD OF TOWN TRUSTEES DURING ITS REGULAR MEETING HELD ON DECEMBER 21,1989 AND AMENDED AT THE TRUSTEE MEETING ON JANUARY 25, 1990. Moved by Trustee Kujawski, seconded by Trustee Smith WHEREAS, the Southold Town Trustees have held public hearings pursuant to 617.4 (J) 1 thru 4, of the State Environmental Quality Review Act, and WHEREAS,the Southold Town. Trustees ownership of Trustee land is to manage such properties in the beneficial public interest,and WHEREAS, our public trust and historic role as Pantentees is strengthened by the State Environmental Quality Review Act and our ability to protect environmentally sensitive areas, NOW, THEREFORE BE IT KNOWN that Southold Town Trustees approve, ratify, and confirm Critical Area Designation (CEA's) pursuant to the State Environmental Quality Review Act (SEQRA) (Part 617.4 J 1-4 NYCRR) for all Trustee Lands below mean high water in the following creeks or portions of the creeks by State Department of Transportation Map designations hereto annexed. Such designations shall in no way affect the largely ministerial function of issuing permits or renewal permits for boat moorings on or over town bottom nor effect the usual or ordinary activities of aquaculture, fishing, hunting, navigation, and mariculture, provided such activities are lawful, and structures installed for said purposes are temporary (less than one year) in nature. The foregoing shall become effective 30 days ~fter filing in the office of the Commissioner of the New State DEC pursuant to SEQRA. Listing of CEAs: Brushs Creek, Cedar Beach Creek, Corey Creek, Deep Hole Creek, Goldsmith's Inlet, Halls Creek, Goose Creek, Little Creek, Mill Creek (Arshamomaque), and Pipes Cove Creek. AMENDED TO READ: (1) Entirety of all named creeks, and Arshamomaque Pond to north of State Route 25, (2') All of Deep Hole Creek inclusive of all tributaries north of New Suffolk Avenue and east of Meadow Lane (previously omitted from maps when drawn). Vote of the Board: Ayes; Trustees Kujawski, Bednoski, and Smith. Krupski%.t ~lBredemeyer, ~ ~ ENB--FEBRUARY 1, 1989 PROJECT!DES~....'~ION REGION l--Pursuant to Section 34-0104 of the Environmental Conservation Law ("ECL"). the Department of Environmental Conservation has prepared a final identification of coastal erosion hazard areas for the City of Glen Cove, Nassau County. This final identification identifies land areas containing or comprising natural protective features, On September t2, t984, in accordance with ECL SS34-010412], the Department held a public hearing in the City of Glen Cove to afford affected landowners and other interested parties an opportunity to propose changes to the Department's preliminary coastal erosion hazard area identification, On August t0, 1984 the Department sent notice thereof by certified mail to each owner of record, as shown on the latest completed tax assessment rolls, of lands included within .such area. Certified mail notice of the hearing was also sent to the chief executive officer and clerk of the City of Glen Cove on August 10, t984. Notice of the hearing was published in the Glen Cove Record Pilot on August 23, 1084, and in the Department's Environmental Notice Bulletin on August 22, t984. Having considered the testimony given at the aforementioned public hearing and the potential erosion hazard in accordance with the purposes and policy af ECL Article 34, and having consulted with the City of Glen Cove, the Commissioner of Environmental Conservation, pursuant to ECL SS34-0t04(3), adopted the final identification of erosion hazard areas and has ordered the fallowing: '1. that a copy of the final identification of the erosion hazard areas be filed in the clerk's office of the City of Glen Cove; 2. that notice of the final identification be given to affected landowners and the chief executive officer of the City of Glen Cove, in accordance with ECL SS34-0104(3]; and 3. that DEC staff maintain a current file of maps of all erosion hazard areas in the City of' Glen Cove. Such information is kept i~ the Region t Headquarters af DEC and in the clerk's office of the City of Glen Cove, and is available to the public for inspection and examination. For more information on this action contact: Robert Schneck, NYS Department ef Environmental Conservation SUNY, Bldg. 40 Slony Brook, NY t t790, (5t6] 75t-7900, CRITICAL ENVIRONMENTAL AREA PAGE 10 I~EGION 'l--The County of Suffolk has flied the designation of a Critical Environmental Area [CEA] ta be known as Peconic Bay and Environs. This designation includes all of the bays east from the mouth of the Peconic River, to and including Block Island Sound, all of the land beneath of bays and all upland area within 500 feet of all bays and their tributaries· This designation will take effect on February 2t, t989, § 23.56 NEW YORK ZONING punishment of the board members for contempt. However, condi- tions improperly imposed will be disapproved.8 § 23.57. --New York City. The zoning resolution of the city of New York authorizes the board of standards and appeals to prescribe such conditions and restrictions in the granting of a variance as it deems necessary to minimize the adverse effects of the variance upon neighboring property. The conditions or restrictions must be incorporated in the building permit and certificate of occupancy. Failure on the part of the applicant to comply with conditions or restrictions imposed by the board constitutes a violation of the zoning resolution and may constitute grounds for denial or revocation of a permit or certificate,g E. LIMITATIONS UPON THE POWER TO ORANT VARIANCES § 23.58. Miscellaneous limitations on the power of boards of zoning appeal. The board of zoning appeals is subject to a variety of limita- tions which do not fit conveniently into an outline based upon the Steinhilber requirements~° and the modification of those requirements in cases which deal with area variances." Neither are they strictly procedural matters, which are considered at a later point. These .limitations are considered in the several sections which follow. They include limitations on the authority of a board to amend the zoning ordinance,~ to vary the building code23 to vary a safety ordinance,TM to vary a consent require- merit,~ to refuse to decide a matter within the jurisdiction of the board,~6 and to deny a permit on grounds other than those specified in the zoning regulations." 8. Bernstein v Board of Appeals, 60 Misc 2d 470, 302 NYS2d 141 (1969). 9. Zoning Resolution, City of New York § 72-22 (1961, as amended). 10. § 23.08, supra. 11. § 23.33, supra. 250 12. § 23.59, infra. 13. § 23.60, infra. 14. § 23.61, infra. 15. § 23.62, infra. 16. § 23.64, infra. 17. § 23.63, infra. lowever, condi- authorizes the conditions and 'ems necessary ,m neighboring ncorporated in Failure on the or restrictions of the zoning or revocation AllIANCES c of boards of 'iety of limita- ~e based upon trion of those nces." Neither :msidered at a a the several tbe authority y the building nsent require- ,diction of the .r than those VARIANCES § 23.59 § 23.59. No power to amend the zoning ordinance. The board of zoning appeals is an administrative body, not a legislative one. Accordingly, it is without authority to amend the zoning ordinance which it administers,is In the early years of zoning the hope was expressed that the board of zoning appeals, through the use of its power to grant variances, would obviate the need for frequent amendment of the ordinance2g Indeed, the distinction between legislative and administrative relief from the strict application of zoning regulations sometimes was lost or obscured by forms of relie£ which involved some use of both kinds of power,~ but the principle of separation of governmental powers is commonly applied to municipal governments, and any offense to the principle will invalidate administrative conduct, if it is detected. It is necessary to distinguish sharply between a variance which may be granted by a board of zoning appeals, and an amendment which can be adopted only by the legislative authority of the municipality2 A variance is, of course, a use of land authorized by a board of zoning appeals upon a showing of circumstances previously required by the legislative authority. It does not alter the zoning regulations; it merely permits a use which is proscribed by such regulations. This distinction is illustrated in Schmitt v Plonski,~ where a board of zoning appeals had previously granted a variance to construct a motel in a district where motels were prohibited by the zoning regulations. The owner sought a permit to build a theater on the same land. The court held that the variance did not amend the ordinance; that it did not change the classification of the subject property from residential to commer- 18. Clark v Board of Zoning Ap- peals, 301 NY 86, 92 NE2d 903 (1950), reh den 301 NY 681, 95 NE2d 44 and cert den 340 US 933, 95 L Ed 673, 71 S Ct 498. A board of zoning appeals is with- out authority to amend the zoning regulations of a town. 1968 Ops St Compt 68-797. 19. § 22.10, supra. 20. § 23.04, supra. 1. The court reversed the granting of a variance by the board of appeals, finding that the use was a prohibited one, and that, in effect, the board of appeals was attempting to change the business zone established by the legis- lature. Fortuna v Murdock, 257 AD 993, 13 NYS2d 712 (1939), affd 281 NY 763, 24 NE2d 21. 2. 215 NYS2d 170 (1961, Sup). § 23.59 NEW YORK ZONING cial. Accordingly, no permit for a commercial use other than a motel could issue without a variance to permit such use? A variance may be regarded as an amendment if it alters in any fundamental respect the zoning scheme that is articulated in the ordinance.4 If a variance is destructive of the purpose to be achieved by the zoning ordinance, there is a clear invasion of the legislative process.~ The limitation is easier to articulate than to apply to the myriad of fact situations which confront the boards and the courts. The cases suggest some clues which are useful in detect- ing a variance in form which may be annulled as an amendment in fact. Most variances involve a single lot or at least a small parcel of land. Where a variance granted by a board of zoning appeals purports to permit the use of a large tract of land for a proscribed purpose, there is a strong possibility that the pur- ported variance will be called an amendment. In Re Northamp- ton Colony, Inc.,6 a board of zoning appeals refused to grant a variance for the commercial use of 5V2 acres of land which constituted an entire residential district. The court sustained the board on the ground that such a variance would, in effect, be an amendment. Similarly, a board refusal to grant an area variance to permit the building of homes on 1-acre lots on 40 acres of land zoned for 2-acre lots was sustained. The court said that the variance power was not so broad as to permit an administrative body to lift 'this amount of property from one zone and place it in another.7 While a board, of zoning appeals is without power to 3. See Sherman-Engram Realty Corp. v Feriola. 23 Misc 2d 245, 198 NYS2d 193 (1960). 4. Cohalan v Schermerhorn, 77 Misc 2d 23, 351 NYS2d 505 (1973); citing Anderson, American Law of Zoning § 14.68. 5. Held v Giuliano, 46 AD2d 558, 364 NYS2d 50 (1975, 3d Dept). 6. 30 Misc 2d 469, 219 NYS2d 292 (1961), arid 16 AD2d 830, 230 NYS2d 668 (2d Dept). 7. Hess v Zoning Bd. of Appeals, 17 Misc 2d 22. 188 NYS2d 1028 (1955). A board of zoning appeals lacks authority to grant an area variance for a 31-acre parcel. Such a variance 252 would invade the province of the leg- islative body. Giuntini v Aronow, 92 AD2d 548, 459 NYS2d 117 (1983, 2d Dept). In determining whether the prov- ince of the legislature has been in- vaded by the granting of a variance, the size of the parcel is a significant factor. Cohalan v Shermerhorn, 77 Misc 2d 23, 351 NYS2d 505 (1973); citing Anderson, American Law of Zoning § 14.69. .' A board of zoning appeals is with- out authority to grant a variance to construct dwellings on fline lots of 25,000 square feet in a district where the zoning ordinance requires a mini- mum of 40,000 square feet. Such a variance would constitute a legislative ,ther than a lse? · it alters in . articulated ~ purpose to · invasion of pply to the 'ds and the ~1 in detect- amendment ast a small · d of zoning f land for a at the pur- Northamp- to grant a land which ,stained the ~ffect, be an ca variance 40 acres of dd that the ainistrative nd place it ~t power to ce of the leg- ' Aronow, 92 117 (1983, 2d er the prov- },as been in- f a variance, a significant merhorn, 77 t 505 11973): Can Law of eals is with- variance to nine lots of ~st rict where tires a mini- 'eet. Such a a legislative VARIANCES § 23.60 amend a zoning ordinance, it may not decline to hear and decide applications for 14 special exceptions relating to contiguous lots on the ground that to grant them would be to amend the ordinance? A board of zoning appeals cannot grant a variance to change a zoning regulation simply because the board disagrees with the policy of the legislative enactment,g A variance may not be granted which would result in a material deviation from the zoning plan,'° or for a use which the zoning regulations have excluded." An ordinance provision which terminates noncon- forming uses after a specified period of discontinuance may not be waived through the granting of a variance? § 23.60. No power to vary the building code. The authority of a board of zoning appeals to vary the strict application of the zoning regulations does not include the power to vary the application of the municipal building code.'~ Building act, infringing upon the powers of the municipal legislative body· Van Deu- sen v Jackson, 28 NY2d 608, 319 NYS2d 855, 268 NE2d 650 (1971). 8. Von Gerichten v Schermerhorn, 49 Misc 2d 800, 268 NYS2d 589 (1966). 9. Pounds v Walsh, 129 Misc 676, 223 NYS 459 (1927), arid 223 AD 861, 228 NYS 879, affd 248 NY 591, 162 NE 537. 10. People ex rel. Stevens v Clark, 126 Misc 549, 213 NYS 350 (1926), affd 216 AD 351, 215 NYS 190. Where the town board expressly reserves the power to regulate or modify that part of the zoning ordi- nance creating a flood control district and imposing a building moratorium on the district, the board of zoning appeals is without authority to grant a variance to allow the construction of a building in the district. Holowka v Zoning Bd. of Appeals, 80 Misc 2d 738, 364 NYS2d 403 (1975). The zoning map cannot be changed under the guise of granting a vari- ance. Heram Holding Corp. v Albany, 63 Misc 2d 152, 311 NYS2d 198 (i970). 11. Beckmann v Talbot, 278 NY 146, 15 NE2d 556 (1938), reh den 278 NY 700, 16 NE2d 849. 12. Swartz v Wallace, 87 AD2d 926, 450 NYS2d 65 (1982, 3d Dept); citing Anderson, New York Zoning Law and Practice, § 18.58 (2nd Ed 1973). 13. Cassety v Dobson, 255 AD 928, 8 NYS2d 740 (1938), reh den 256 AD 895, 10 NYS2d 217. A village board of zoning appeals is without authority to vary the applica- tion of the building code. Rosenstein v Curran, 21 AD2d 802, 250 NYS2d 699 (1964, 2d Dept); discussed in Ander- son, Local Government, 1964 Survey of NY Law, 16 Syracuse L Rev 260 (1964). A village b~ard of zoning appeals may not permit the construction of a building with materials which do not comply with ths building code. 1964 Ops St Compt 589; citing Anderson, Zoning Law and Practice in New York State § 18.55. 253 rS, 2d SERIES tssistanee in the form of estore the grant of such ~e date of its termination. ding within four months ;ermination of the Com- tment of Soclal Services, commissioner rendered ?roceeding is not barred ~ NYCRR 358.18 (b) it a copy of respondent's .imitations did not begin ff the decision. (3{atter e set aside as contrary )4, subd. [gl; see, also, 2d 416.) Section 104-a ~ for rcspondent's deter- ns, the transfer of the lifications as a recipient ~. Pursuant to subdivi- ices Law, thc ownership h aid to dependent chil- aer could not be required , for such aid since peri- ncr in whole or part of Sugarman, 3! N Y 2d is granted. ~s to resettle the judg- ent of petitioner's pub- reefed by the judgment :oner's application was spondent for the fermi- vas contrary to the law. ~ properly limited scope ed for public assistance t, the court did not spe- 'e retroactively due to .'as not litigated. The ~f welfare payments to te of their termination. · respondent ean either MTR. OF COHALAN v. SCHERMERHORN [77 Mist 2d 23] 23 retroactively or prospectively reduce petitioner's benefits. That question should first be treated within the administrative pro- eedures established for that purpose and, if reviewed at all by this court, such review must be within the perimeters estab- lished by CPLR 7803 (sub& 3) and 7804 (~subd. tgi). The court cannot circumvent these required procedures by resettling a judgment. Accordingly, respondent's motion is denied. In the Matter of Pz~ F. COHALAIg et aL, Constituting the Town Board of the Town of Islip, Petitioners, v. Wmu~g H. Sc~g~z~nOR~ et al., Constituting the Zoning Board of Appeals of the Tmwn of Islip, et al., Respondents. Supreme Court, Special Term, Suffolk County, December 6, 1973. Municipal corporations--zoning--area variance, which Zoning Board of Appeals granted subject to approval of Planning Board, did not usurp juris- diction of Planning Board or power of Town Board--however, Special Term remands matter to Zoning Board of Appeals to take proof and to make findings which can be intelligently reviewed~by court. 1. A corporation purchased a lot ~vhich has 396 feet of frontage on the street by 110 feet in depth--that is, 43,560 square feet or exactly one acre. This one-acre lot is shown on an old filed map. It is part of a large area which is zoned as follows: one-family dwellings only, on lots having at least 11,250 square feet of area and having .at ]east 75 feet of street frontage. The 75 front-foot restriction would amply allow the corporation to build five one- family dwellings; but the 11,250 square foot restriction would limit the eot- potation to only three one-family dwellings, even though each such dwelling would have 132 feet of street frontage. The town's Zoning Board of Appeals granted the corporation a variance allowing the corporation to build five one- family dwellings, provided that the corporation first obtained the approval of the town's Planning Board. This comparatively minor area variance did not usurp the legislative zoning power of the Town Board, nor did it usurp the Planning Board's original juriedietlon to approve or disapprove proposed sub- divisinn plats (cf. Town Law, §§ 277, 280-a). 2. However, the Zoning Board of Appeals' conclusion, that the corporation would otherwise suffer significant economic injury, is based on unacceptably conelusory findings of fact, founded perhaps on facts known to members of that board, but not stated in the findings. Accordingly, in this CPLR article 78 proceeding instituted by the Town Board to annul the variance granted by the Zoning Board of Appeals, Special Term remands the matter to the Zoning Board of Appeals to take proof of any economic injury to the corporation and to make findings of fact which, can be intelligently reviewed by a court. Henry G. Wenzel, Ili, for petitioners. James V. Fallen for William H. Sehermerhorn and others, respondents. Donner, Fagelson ~ Hariton, P. C., for C. P. Builders, Inc., respondent. Lso~ D. Ltzs~, g. The Islip Town Board (the ".town ") bas instituted this article 78 proceeding to annul a series of five 24 77 MISCELLANEOUS REPORTS, 2d SERIES variances granted by the respondent Islip Board of Zoning Appeals (the "board") to respondent C. P. Builders, Inc. (the "owner "). The parcel involved has 396 feet of street frontage and 110 feet of depth, and was purchased less than a year before the owner applied to the board for relief. It consists of a single one-acre lot on an old filed map, lying in the single-family "Residence A" district which requires of each building lot an area of 11,250 square feet and a frontage o~ 75 feet, here limiting the plot yield to three. T. ke vari~ar~a~autho~ri_zed, the__constr_u? _~ti0n of five dwellings on lots which contained 8,690 square feet subject to Planning Board appr__.oval. The variance applications were predicated on the theory that compliance with zoning ordinance provisions relating to plot · area would result in street frontages exceeding 100 feet, which the owner characterized as "confiscatory" under the circum- stances. No "dollars and cents" testimony was offered at the hearing (see Stanley Park v. Donovan, 34 A D 2d 690). After inspecting the property the board approved the applications, concluding "that the applicant will suffer economic injury if the strict application of the area ordinance were enforced to require .the applicant to provide an improved plot frontage in excess ~ 102 feet in lieu of the required 75 .feet." The board also found that the contiguous parcels were substandarcl -~d' that the proposed reduced lots conformed Substantially plots in the immediate S~iri~ounding area: ..................... The .town has atta¢k~..t.h__q.Dgard_'.s_.gg.~ermination as a usurpa- tion both of the town!s legislative function to rezone and the Planning Board's powers to approve subdivisions, and it further urges that the variances are not supported by the record. THE VARIANCES DO NOT CONSTITUTE A REZONING. A board of appeals has no power to remake a zoning map under the guise of granting a variance (Scarsdale Suppl~j ~o. v. Village Of Scarsdale, 8 N ¥ 2d 325), for such a change con- stitutes an exercise of legislative power (Old Farm Road v. Town of New. Castle, 26 N Y 2d 462; Matter of Levp v. Board of Stds. ~ Appeals, 267 N. Y. 347; Matter of Reec~ v. Boar~ of gtds. ~Appeals, 255 N. Y. 126; 101 C. J. S., Zoning, § 283). A variance may be regarded as a zoning amendment if it alters in any fnndamental and substantial respect .the zoning scheme which is articulated in the ordinance (3 Anderson, American Law of Zoning, § 14.68, p. 61; Mayflower Prop. v. City of Fort Lauderdale, 137 So. 2d 849 [Fla. App.]; Bryant v. Lake County 2d SERIES lip Board of Zoning P. Builders, Inc. (the leer of street frontage ess than a year before It consists of a single in the single-family f each building lot an f 75 feet, here limiting t h o_r i._z_e d_.t _he ..c on s t r_u? ined 8,690 square feet Tli~'grar/t was made ted on the theory that sions relating to plot ceding 100 feet, which ¥" under the clrcum- ony was offered at the ~AD2d690). After ovcd the applications, 'er economic injury if race were enforced to roved plot frontage in . 75 feet." .The board' were substandard'-~t~d' M substantially to the rmlnation as a usurpa- ;ion to rezone and the . livisions, and it further d by the record. 'E A EEZONINO. remake a' zoning map (Searsdale Supply Co. for such a change con- r (Old Farm Road v. '~ttcr o[ Levy v. Board er o[ Reed v. Board of · 8., Zoning, § 283). A aendment if it alters hi mt the zoning scheme 3 Anderson, American r Prop. v. City of Fort Bryant v. Lake County MTR. OF CoHALAN v. SCHERMERHORN [77 Misc 2d 23] 25 q'rust Co., 284, N. E. 2d 537 [Ind.] ). In d_e. tg~mining whether the zoning province of the legislative bS-dy has been invaded, size is a significant factor (Van Deusen v. Jackson, 35 A D 2d 58, afl& 28 lg Y 2d 608; Matter of Beach Haven Jewish Center v. Foley, 18 A D 2d 917, rev& on dissenting opm below 13 lq' Y 2d 973; Gardner v. Le Boenf, 24 Mise 2d 511, afl& 15 A D 2d 815), for the variance which most closely resembles an amendment is one which applies to a large or extensive tract of land (3 Ander- son, American Law of Zoning, § 14.69). Applications for vari- ances which change the density or use of such tracts have been characterized as" futile" and will not receive judicial approval (see Levitt v. Incorporated Vil. of Sands Point, 6 Iq' Y 2d 269 [127 acres]; Scarsdale Supply Co. v. Village of Scarsdale, supra, [3.4 acrds]; Van Deusen v. Jackson, supra [7.365 acres]; Gardner v. Le Boeuf, supra. [19 acres]; Spadafora v. Ferguson, 182 Misc. 161, affd. 268 App. Div. 820 [33 lots--13 houses]; 'Matter of Von Gerichten v. Scher~nerhor**, 49 Misc .2d 800 [14 parcels]; Matter of 37orthampton Colony v. Board of Appeals of Inc. Vil. of Old Westbury, 30 Misc 2d 469, afl& 16 A D 2d 830 [5.5 acres]; Matter of Hiscox v. Levlne, 31 Misc 2d 151 [modification by planning bd.--37.4 acres]; Matter of Hess v. Bates, 17 Mist 2d 22 [40 acres]; 2 Anderson, New York Zoning. Law & Practice, § 18.58; 2 Rathkopf, Law of Zoning & Planning, § 39-10). l~esearoh has revealed no case of judicial disapproval of a variance based on property size where but '~ single acre was involved. Neither has it disclosed any determination holding that a density increase from three residences to five in a high density area constitutes a usurpation of legislative power. The instant variances do not amend the zoning ordinance or change the boundaries of the district (Matter of Levy v. Board of Stds. ~ Appeals, supra), radically alter the nature of the entire zone (Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill. 2d 370), or thc essential character of the neighborhood (101 C. J. 8., Zoning, § 282), destroy the general scheme of thc zoning law (Matter of Clark v. Board of Zo,ving Appeals of Town of Hemp- stead, 301 N. Y. 86), effect a substantial change ,in the compre- hensive plan (2 I~athkopf, ~upra, § 39-10), seriously disarrange the zoning pattern, or defeat the general pm'pose of the zoning law (3fatter of Beach Haven Jewish Center v. Foley, supra; Vc~ Deusen v. Jackson, supra). Thc single-family development of thc instant parcel based on the board's grants will not upset the zoning balance of the large residential zoning district in which it lies. Whatever its other deficiencies as an adminis- 25 77 MISCELLANEOUS REPORTS, 2d SERIES trative determination the board's action did not constitute an appropriation of the town's legisla.tive ~unction. THE VARIANCES DO NOT COi~STITUTE AS UI~AUT~OnlZED SUBDIYISI01q OF LAIqD. Although the variances ~_were grantgd subject_ to _Planning Board approval the town relies on Va~ Deusen v. Jackso~ (supra), to suP,p~:% ~t~-{~eory that the jurisdiction of the plan- ning agency was illegally infringed by variances based upon subdivision into five lots. In Va~ Deusen, a 7.365 acre parcel which lay in a 15,000- square foot district had originally been subdivided. The land was subsequently rezoned into a 40,000-square fodt district and thc owner then obtained from the board of appeals approval of a map showing nine 25,000-square-foot tots. Characterizing the object of the variance as the "sanction of the development of his land as a subdivision at odds with the ordinance," the court found that "the other factors in the ease, coupled with size, lead to the conclusion that the varlanee * ' ° overran the powers of the respondents." (p. 61; emphasis supplied). In Va~ Deusen the owner sought to by-Pass the Planning Board. Here the board has s,pec.ifieally conditioned its grant on approval by the Planning Board. There size was a determinative .factor. Here the parcel is small. That the instant owners must obtain approval from the~P2an- ning. Board..to subdi~;id~ {}~]il~-lb~s~"is beyond-dispute (see Incorporated Vil. of Nissequogne v. Meixsell, 55 Misc 2d 1069, affd. 3~ A D 2d .1029; ~Ashmill Homes v. Town of Islip, N. Y. L. Dec. 4, 1969, p. 18, col. 2). The real issue is, which of the tSvo administratkvc agencies has priority of jurisdiction. The board has approved the applications subject to Planning Board approval, but the town urges that plat approval was a prerequi- site to the variances. Rathkopf supports this view, reasoning that lot variances Of restrictions relating to nonexistent 10ts and lot lines mandate that "the proper procedural order in New York is first to secure approval of thc subdivision and then to apply for such variances as may he necessary" (3 Rathkopf, supra, § 71-49). Thc New Jersey .Supreme Court reached a similar conclusion, suggesting that upon an application to the planning board conditional on subsequent approval of a a, ari- ance, thc "planning board may, with its approval express its nonbinding opinion as to whether the variance would be con- 'duclve to or detrimental to the planning scheme because of the undersize of a lot." (Loechner v. Campoli, 49 1~. J. 504, 512; ~, 2d SERIES n did not constitute an function. ~d .subject__ to ._~lanning 'an Deusen v. Jackso~ jurisdiction of the plan- variances based upon which lay' in a 15,000- subdivided. The land ~,luare foot district and 'd of appeals approval ~t lots. Characterizing ion of the development th thc ordinance," the the ease, coupled with t; emphasis supplied). ss the Planning Board. d its grant on approval a determinative ~actor. 9proval from t~he P_lan- ~ beyond' dispute (see rsell, 55 ,~[isc 2d 1069, · wn oflslip, N. Y. L. J., m is, which of the two ,rlsdictlon. The board to Planning Board proval was a prcreqni- this view, reasoning to nonexistent lots and cedural order in New ~bdivislon and then to 'ssary,' (3 Rathkopf, 'cmo Court reached a an application to the t approval of a atari- approval express its triance would be con- ~chemc because of the ,Ii, 49 N. J. 504, 512; MTR. OF COHALAN v. SCHERMERHORN [77 Misc 2d 23] 27 see, also, Ryan v. Board of Adj. of Twp. of Woodbridge, 49 N. 5. 520.) ]tad a subdivision ,plat ~hich contained the five nonconforming lots first been filed with the Planning Board tha~ agency would have been obligated to conduct a public hearing to consider it (see Matter of Northern Operating .Corp. v. Chamberlain, 34 A I) 2d 686, affd. 31 N ¥ 2d 704). The town cites Matter of Ygeinstein v. Plamning Bd. of Vil. of Great Neck (28 ~. D 2d 862, affd. 21 N Y ,2d 1001), for the proposition that a planning board is without power to approve a map which violates the zoning ordinance. Matter of Northern Operating Corp. (supra) establishes the doctrine that the failure of a .planning :board to conduot a public hearing mandates issuance of a certificate of approval after 45 days even if the plat is n0ncon}orming. Nevertheless, it is clear from the ,opinion of the .Court of Appeals that such certificate of approval does not relieve an applicant from compliance with local law. A planning board cannot con- sider economic hardship in approving a subdivis.ion map (Matter of Diamond v. ~qpecter, 39 A D 2d ~942i 'Matter of McEnroe v. Planning Bd. of Town of Clinton, 61 'l~{isc 2d 937) and neither the approval nor .the filing of a noncomplying :map can change the zoning or create an estoppel that will work such change (Shapiro .v. Town of Oyster Bay, 27 Misc 2d 844, afl& .20 A D 2d 850). Whether Matter of Northern Operating Corp.' can be read to authorize a ,i~lanning board to approve a noncond~orm- lng plat under section 277 of the Town Law is doubtful. It is more likely that the case represents judicial '" reachon to the use of technicalities to delay proeesslng of subdivision plats. Nevertheless, the praetlcal result of such a certificate of approval is the ~iling of a nonconforming subdivision :m~p. 'l~here is._authority, for .the order o.f priority adopted by the owner. In Matter of Eriksen(N. ¥. L. J., Dec. 4} 1964, p.' 22, '~ol. 3, affd. sub nom. Matter of Erikse~ v. Commerdinger, 24 A D 2d 934), the action of ~he Smithtown Board of Appeals in refusing jurisdiction o~ a variance applicatlon on the ground that the .plot created :by partition "had no legal standing ', was reversed. Although there are some distinF, uishing features.to thc case it certainly stands for the proposition that a board of appeals :may have jurisdiction to grant a variance prior to plat approval. (See, also, Adams v. Incorporated Vil. o! Fgesthampton Beach, 71 Misc 2d 579.) In Matter of Costa (Hibbard) (N. Y. L. J., March 5, 1965, p. 20, col. 1), .the court held that while ultimate approval of thc Planning Board was 28 77 MISCELLANEOUS REPORTS, 2d SERIES required, it was not a condition precedent to an application for a variance under section 280-a of the Town Law. Compliance with modern day subdivision regulations for the submission of a plat requires an owner to obtain professional assistance at substantial expense and imposes upon a ,planning' board both technical and philosophical evaluati.on of the multiple criteria set forth .in the statute (Town Law, § 277; see Fullam v. Kronman, 31 A D .2d 947). Such study necessarily is time- consuming and sometimes results in delay of an extensive nature. Boards of appeals, however, move with less formality and more dispatch. Requirements for both fling and technical assist- ante a~e less formidable. The granting of a variance changes the zon.ing requirements applicable to the property it affects by permitting its use in a manner forbidden by the zoning ordi- nance (Balodis v. Fallwood Park Homes, 54 M.ise 2d 936). The use then becomes a conforming one (Industrial Lessors v.'C]~ of Garfield, 119 N. J. Super. 181). Lots whieh have been modi- fled ,by variance a}e thus conforming when theY'a~pea~-on a subdivision map. Consideration of s,{eh a map therefore is not an exerci~ in planning academics. A reversal of the order in which the instant owner made his submissions ~vould have inflicted hypothetical, zoning problems upon the Planning Board and involved it in a controversy over which it had no ~rue jurisdiction. That jurisdiction has not been'infringed by the instant application .to the Board of Appeals. THE RESPONDENT BOARD'S CONCLUSIONS ARE INADEQUATELy SUPPORTED IN ITS 17INDINGS AND IN T~E RECORD. The reduction in lot area, and the consequen~ increase in density, characterize as area variances the relief granted by the board (McInroy v. Grunewald, 14 A D 2d 547; Matter of Sati~ v. Board of Stds. & ~lppeals of City of Ii. Y., 28 M-4sc 2d 931, affd. 15 A D 2d 531). In order for such variances to stand the record must establish that the restrictions of the ordinance create a practical difficulty in the use of the property (Matter of V~llage of Bronxville v. Francis, I A D 2d 236). The stand- ards set forth by Justice ~r~rn in Matter of Waehsberger v. Michalis (19 Misc 2d 909, affd. 18 A D 2d 921) continue to prevail as a principal guide for zoning boards and courts alike in making area variance determinations. If, however, an applicant can show that he suffered "significant economic injury" as a result of the area standards of the ordinance, he may be entitled to a variance (Matter of Fulling v. Palumbo, 21 N Y 2d 30). Thus an area variance may be predicated on 2d SERIES ~ent to an application Town Law. on regulations for the to obtain professional. poses upon a .1~lanning duation of the multiple .aw, § 277; see Fullam ly necessarily is time- of an extensive nature. 'ss formali(ry and more and technical assist- of a variance changes he property it affects fen by the zoning ordi- 54 5Iisc 2d 936). ~h_e ustrlal Lessors v. City ~vhich haye_been...mqdi- ben. they appear on a h a map therefore is ~ reversal of the order bmlssions would have )n the Planning Board which it had no true been infringed by the Is. ARE Il{ADEQUATELY N' THE RECORD. onsequent increase in' e relief granted by the l 547; Matter of ~at;~ _V. Y., 28 ~[,isc 2d 931, variances to stand the ohs of the ordinance the property (Matter ) 2d 236). The stand- 'er of Wachsbcrger v. ~ 2d 921) continue to g boards and courts ions. If, however, an ' significant economic ~ of the ordinance, he f Fulling v. Palumbo, may be predicated on :' LETMAN v. MILAU ASSOC. [77 Misc 2d 29] proof of, what would appear to be hardship standards (see 2 Anderson, New York Zoning Law and Practice, § 18.40).. What- ever the proof, however, the board is required to set forth in its grant the findings of fact upon which the variance is based. Such findings are necessary in order .to subject a determination to intelligent judicial review (Gilbert v. Stevens, 284 App. Div. 1016). Theymay be based upon the board's own survey (Matter iof Levy v. Board of Stds. & Appeals, 267 'N. ,Y. '347, s~pra) or upon facts known to board members, but in_either such event the board .must set forth in its return the facts known to its members but not otherwise disclosed (People ex tel. Fordham Manor Ref. Church v. Walsh, 244 N. Y. 280). Here the board found that as a result of the various offsite improvements which were to be provided, compliance wifh street frontage require- ments would impose "unique additional cost" upon the owner who would suffer" economic injury ". The testimony proffered by the owner included no evidence of a financial nature and the . board's findings are in unacceptable conclusory language (Matter of Ennis v. Crowley, 12 A D 2d 999). Since an inspec- tion of the property was made before .the board rendered its grants, the court assumes the variances were granted on facts known to its members but not reported in the decisions. ~here- fore, the matters will be remanded to the respondent board for the taking of such further proceedings as it may deem necessary with reference to proof of economic injury and the making of findings of fact which are susceptible to intelligent judicial review. LEVI LETMA~', Plaintiff, v. ~[ILAU ASSOCIATES, INC., et al., Defendants. MmAu ASSOCrATES, I~C., Third-Party Plaintiff, v. Eow~mn F. H~cx~Y, I~c., Third-Party Defendant. Supreme Court, New York County, January 28, 1974. Torts--apportionment of liability among tort-feaso~workmen's com- pensation--in action for injuries received on job, negligent nonemployer defendant has right to apportionment as aga~t third-raCy defender employer as joint tort-feasor~Dole v. Dow Chem. Co. (30 N Y 2d 1~3) pe~ impleader of employer and r~es he may be held propo~ionately Hable to degree of his negligence even though Workmen's Compensation Law wo~d have barred recove~ had dece~ed employee's personal representative ~ed employer directly. 1. Plalnt~, injured ia an accident on a construction site, du~ng the coumo of his employment by the third-party defendant, sued defendants ~le~g ~at their negligence ea~ed or contributed to his injury, and defendant M~au · 324 8 NEW YORK REPORFS, 2d SERIES Opinion per Bu~, J. The significance of Matter of Lorenzo Estates (decided by the Temporary State I~ousing Rent Commission May 6, 1959), cited by the appellant, lles in the fact that the Rent Adminis- trator made the precise determinations discussed above. 1re gave "careful consideration" to the entire record, and then concluded that "the intended renting is purely a commercial one and that the subject accommodation will not be used for residential purposes ". Accordingly, he issued an order exempt- ing the space "so long as it is not used for residential purposes ". The legal effect is quite different from appellant's assertions. The space becomes exempt when the Administrator finds that the conversion is genuine, not when the landlord claims an exemption. In connection with this view of the value of section 13, it is important to recall that in 1959 the Legis- lature, through the State I~ousing Rent Commission, amended section 13 "for the purpose of enabling the Administrator to determine the good faith of the conversion from residential to business space in order to avoid abuses ". (Note of Commission to Amendment No. 76 to Slate Rent and Eviction Regulations, § 13, cfi. June 1, 1959, citing Matter of 114 East 4nth Corp. v. Armstro~g, 14 Misc 2d 984, 986-987, and Matter of Sipal Realty Corp. [Da~tkers], 16 Misc 2d 827, 833.) We do not think that it is the law of this case that this court's prior action (Matter of Sipal Realty Corp. [Dankers], 4 N Y 2d 1026) sustaining the petition as sufficient in law now precludes consideration of the applicability of section 13. The allegations set forth in the petition before us on the occasion of that appeal were broad enough to include a statute not referred to at that time. Since thc pleading was to be liberally construed on the motion to dismiss, and since the petition did not allege whether any conversions were made after the effective date of section 13, we find that the issue in respect to that regulation was not raised in this court. While we are in agreement with the Appellate Division, we believe that the order should be modified so as to grant a new trial, in order to allow the petitioner to introduce the section 13 certificates secured from the Rent Administrator subsequent to the decisions of the Appellate Division. At that trial the respondents would have an opportunity to challenge tim validity of the issuance of tho certificates. Titus tl~e trial court would he SCARSDALE SUPPLY CO. v. VIL. OF SCARSDALE [8 N Y 2d 325] 325 Statement of Case what amounts, if any, of rent are presently owed to the petitioner by the respondents. The order of the Appellate Division should be modified insofar as it dismissed the petition, without costs, and the matter remitted to Special Term for further proceedings not inconsistent with the opinion herein. Chief Judge Dss~osn and Judges D~z, Faozss~n and Fos~n concur with Judge Bunt~s; Judges Fu~.n and VAs Voo~s dis- sent and vote to reverse the order of the Appellate Division and to reinstate the order of Special Term for the reasons stated in the opinion at Special Term and in the dissenting opinion at the Appellate Division. Ordered accordingly. SCARSD*T.~. SUPPLY COMPANY, Appellant, v. Respondent. Argued October 5, 1960; decided October 21, 1960. Municipal corporations--zoning--in action for judgment declaring that rezoning of plaintiff's property was unreasonable and confiscatory, trial court erred in failing to decide whether alleged confiscation and resulting depreciation in value of property, regardless of existence of nonconforming use, constitutes present invasion of property rights--application for variance not condition precedent. 1. In an action for judgment declaring that the rezoning of plaintiff's prop- erty was unreasonable and confiscatory, the trial court, although finding that plaintiff produced evidence which might be sufficient to prove that the property could not be practically or profitably used for residential purposes, dismissed the complaint, stating that, because of the existence of a nonconforming use, there was no justiciable controversy or deprivation of property by the zoning restrictions placed upon plaintiff's property. The trial court erred in failing to decide whether the alleged deliberate confiscation and alleged resulting depre- ciation in value of plaintiff's property, regardless of the existence of a non- conforming use, constitutes a present invasion on plaintiff's property rights. If it does so, the existence and maintenance of the ordinance and the threat to continoe it under these circumstances would entitle plaintiff to equitable relief. Plaintiff is entitled to try to prove that the property is so situated that it has no possibility for residential and zoned uses and is most readily adaptable to use now precluded under the zoning ordinance. 2. Where the pleadings allege that the ordinance in and of itself destroys the marketability and value of the property for commercial and residential uses, an application for a variance is not a condition precedent to a judicial remedy. 326 8 NEW YORK I{EI)ORTS, 2d SERIES Points of Counsel Avr~:^~., by permission of the Court of Appeals, from a judg- ment of' the Appellate Division of the Suprenm Com't in the Second Judicial Deparhnent, entered Febrmu'y 15, 1960, uuaui- mously affirming a judgnnent of the Supreme Court, entered iii Westchester County upon a decision of lhe court on a trial at Special Term (GEonor M. FxsmJ.~, J.; opinion 15 Misc 2d 289), dismissing' the complaint. ~lrtlmr F. Driscoll aud ,lobn Dreu' for appellant. I. The trial court was iii error iii hohling that while plaintiff is slill in midis- turbed poss~,ssion and use of the plot iii questiou as a supply yard (a nonconforming use)it cannot maintain an actim! for a declaratory judgment to void the rezoniug, and that such action mast wait until after the nonconforming use is terminated. ( Ueadlcy v. City of Rochester, 272 N. Y. 197; Euclid v. Ambler Co., 272 1:. S. 365; Vernon Park Realty v. City of Mouat Vernon, 307 X. ¥. 493; Dowsey v. Village of Kensingtou, 257 N. Y. 221.) IL The Board of Trustees of the Village of Scarsdale (lid not have the power or authority to eh,'inge the provisions of section 179 of tho Village Law (a State statute) to permit them to rezone plaintiff's property by less than Iht favorable vote of alt the members of the Board of Trustees. (]latter of McAneny v. Board of Estimate ~ Apportiomnent of City el N. Y., 232 N. Y. 377; U, ounty Securities v. ,S'eacord, 278 N. Y'. 3t; Adler v. Deegan, 251 N. Y. 467.) III. The trial court was in error iii ~ssmniug that, because of the Village llome Rule Law, defeudam was empowered to change tile unanimous vote required by sec- lion 179 of the Village Law. (Jewish Consumptives' Relief Soc. v. Town of lVoodbury, 230 App. /)iv. 228, 256 N. Y. 619: People ex tel. Kiclcy v. Lent, 166 App. Div. 550, 215 N. Y. 626; People v. County of Wcslcbester, 257 App. Div. 769; ]latter of Tborofare Developing Corp. v. Deegan, 134 Misc. 592, 226 App. Div. 871; ]latter of Smidtv. McKee, 262 N. Y. 373.) IV. Tho fact that in 1956 the State Legislature amended section 179 of the Village Law eliminates the possibility that such power to amend was delegated to village boards. V. The unanilnous :,loplion of a village eerie in February, 1957 did not affect the inherent validity.of the rezoning' of plain{iff's property ill 1955. SCAIISI)ALI'; 8IJI'I'I.Y (:(). v. VII,. Iii,' SC'dISDAI,E [g N 5 2,1 :;2.;1 Y;27 Opinion per BURKE, J. R. ichard 21. Tilden for respondent. I. The trial court was correct in holding that there was no showing of any uureason- able interference with or confiseatiou of any of plaintiff's ' e' 272 present property rights. (lleadlcy v. City of hoehesl~, ~. Y. 197; Euclid v. Ambler Co., 272 U. S. 365; Vernoa Park Realty v. City of Mount Vernon, 307 N. Y. 493; Dou'se!l v. Vil- lage of Kensington, 257 N. Y. 221.) II. Appellant has an ade- quate administrative rmnedy and should be required 1o exhaust such remedy before apl)lying to the courts for relicL (U/mcr Park Realty Co. v. City of New York, 267 App. lily. 291; low v. City of Rochester, 190 Misc. 128; O'Bri,a Transfer Stor. Co. v. IJ~corporated Vii. of Great Xcck. 2 A 1) 2d 690; llyde v. l,worporated Vil. of Baxter Eshdes, 2 A 1) 2d 889; Levitt v. Incorporated Vil. of Sands Pobd, ~ X Y 2d 2G9; Mat- let of Otto v. Steinhilbcr, 282 N. Y. 71.) I[I. Appellant failed to sustain the b~den of proving that its property emdd not reasonably be used for auy purpose for which it was zoned. (Dicker v. Gulde, 11 Mist 2d 807; Shepard v. lqll,.qc of Sl,'anc- alelc8, 300 N. Y. 115; Matter of Eaton v. Swccuy, 257 N. Y. 176; Arverae Bay Co~str. Co. v. Thatcher, 27~ N. Y. 222.) IV. The amendment rezoning al)pellaut's prolu'rty w;~s validly euacted. (Good Huvzor Corp. v. Cil*y of New Yeti,', 290 X. Y. 312.) V. Any invalidity of the rezoniag of appellant's property in 1955 was effectively corrected by the unauimous adoption a village code in 1957. Bumcz, J. The controversy hereby remanded for a delermi- m~tion of the material issues arises out of, aud questions validity of, the rezoning of rea[ prol~erty owned by tilt. plahliiff iu tho Village of 8carstlit[,,. l*[ainliff has. siacc 1~22. eonthm- ally occupied and used the premis(~s Out interior pled (ff 3..1 acres) as a building SLtlq)ly yard in :t ln]shwss zmm dist,'irq ~1' the Heathcote sectiou o~ 8cal'sdalc. llowever, in October 1955, despite plaintiff's written protest, tim Board of of the village, via an amendment to tho buihliag zone ordinance, placed plaintiff's entire tract in a unique and ~cwly established Residence B District. Plaintiff urges that tim board's enaehnout (in Jlltne o~ 1935, · 328 8 NEW YORK REPORTS, 2d SERIES Opinion per Btnu:z, J. No. 4 was void and unconstitutional. We agree with the courts below that, at the time of the commencement of the action herein, this error was effectively cured, and the question rendered moot (St'rai~ss v. U~iversity o/ State of N. Y., 2 N Y 2d 464), because of the u~a~iwous adoption, by the Board of Trustees, of the new Scarsdale Village Code, which expressly repealed the former ordinances, but retained the same zoning restrictions by a re-enactment. (See eh. 1, art. 1, § 1-1-2; and eh. 12.) On the trial plaintiff produced evidence which, it contends, demonstrates that the limitation and conditions imposed by the new zoning were intended to eliminate and impair the use and value of the property for any purpose whatever, other than its present nonconforming use. Plaintiff sought a declaratory judgment, therefore, that the rezoning of its property was over- burdensome, unreasonable and confiscatory, and, therefore, unconstitutional. The trim court, although finding that plaintiff produced evi- dence which might be sufficient to prove that the property could not be practically or profitably used for residential purposes, dismissed the complaint stating, inter aha, that, because of the existence of a nonconforming use, there is no deprivation of property or justiciable controversy (citing Headley v. C{iy of Rochesler, 272 N. Y. 197). It is our opinion that the trial court erred in falling to decide whether the alleged deliberate confiscation and alleged resulting depreciation in the value of plaintiff's property, regardless of the existence of a nonconforming use, constitutes a present invasion on plaintiff's property rights. If it does so, the exist- enee and'maintenance of the ordinance and the threat to eon- tinue it under these circumstances would entitle plaintiff to equitable relief. (Dowsey v. Village of Ke~si~tqton, 257 N. Y. 221, 229; Euclid v..Awbler Co., 272 U. S. 365, 386.) The plain- tiff, having asserted an invasion of his property rights, must be allowed (Mthough a nonconforming business usc exists) to try to prove that the properly is so situated that it has no possibility for residential and zoned uses, and is most readily adapted to a use now precluded under the zoning ordinance. (Veruo~ Park Realty v. City of Mount Vernon, 307 N. ¥. 493, SCARSDALE SUPPLY CO. v. VIL. OF SCARSDALE [8 N Y 2d 325] 329 Opinion per Bugzz, J. The Headley case (supra), upon which the court below unduly relied, is quite distinguishable. In addition to the fact that it was not a zoning ease, it was submitted on an agreed statement of facts which in no way indicated that the present value was diminished or that plaintiff was at all damaged. In that case, plaintiff brought an action to declare unconstitutional a street- widening ordinance, which, in order to alleviate future condem- nation expenses, amended the official maps of the City of Rochester and thereby imposed a 25-foot setback on plaintiff's · lawn. This court affirmed the dismissal of the complaint upon a finding that plaintiff was not a party aggrieved. As explained in Vangellow v. City of Rochester (190 Misc. 128, 132-134), followed in S. S. Kresge Co. v. City of New York (275 App. Div. 1036), in the Headley situation no condition could be imposed requiring plaintiff to surrender the right to just compensation if and when the city should condemn the property. "Therefore, when the Court of Appeals held that he was not an aggrieved party, it could not have meant that he was not affected, but rather that he was not damaged, for the reason, as the opinion indicates, that inability to build in that strip did not depreciate the value of his property as a whole, ~zor ittterfere with any ~ise to which he intended in good faith to devote the said strip. In the language of the opinion, written by Judge Lz~xxx, Head- ley's property could be ' put to the most profitable use by the erection of a building which does not encroach upon thc small portions which may be used hereafter to widen the street. '" (Emphasis supplied.) On the contrary, in the case at bar, not only is there no oppor- tunity for condemnation compensation, but if there is evidence that the property cannot be reasonably adapted to any use per- mitted by the zoning ordinance, the ordinance may be found to be confiscatory. We do not agree that this wrong, i.e., invasion of plaintiff's rights, can be held to be remediless merely because of the existence of a nonconforming use. Defendant's argument that there is an administrative remedy (i.e., application for a variance) which has not been but should be exhausted is without merit. It is well established that such a burden may not be imposed upon a plaintiff as a prerequisite to the maintenance of an action challehglng the constitutionality of the zoning ordinance. (Ulmer Park Realty Co. v. Cih¢ oi 330 3 NEW YORK RI~I'OIITS, 2d SElllES Statement of Case New )~'ork, 267 App. Div. 291, ,093.) The Zoning Board does not bare the power to review the discretion of the Board of Trustees (Dowscy v. Village of Kensington, supra, pp. 227-228; Arverne Bat/Coastr. Co. v. Tbalcber, 27S N. Y. 222) and thereby correct errors of judgment ia zoning. (Matter o/ Otto v. Stcinhilber, 282 N. Y. 71; Matter of Levy v. Board of Sta~dards ~ Appeals, 267 N. ¥. 347.) Here plaintiff does not seek to remedy tile effect of a valid regular(au, but rather to strike it as confiscatory and uneonsti- tutioual. Iu the latter situation, relief is afforded by means of a direct attack upon the terms of the ordinance (Matter o[ Otto v. Steinhilber, supra, p. 75). "Indeed, an application for a variance here * * * would be futile ~ * ~ since the Zoning Board of Appeals has no power to remake the zoning map under the guise of granting a variance [cases cited]" (Levitt v. Incorporated Vil. of Sands Point, 6 N Y 2d 269, 273). Where~ as here, the pleadings allege that the ordinance in and of itself destroys tile marketability and value of thc prop- erty for commercial and residential uses, an apI)licafiou for a variance is not a couditlon precedent to a judicial remedy. (Euclid v. Ambler Co., 272 U. S. 365, 386, supra.) Accordingly, the judgment should l)c reversed and thc case remitted to Special Term, with costs to abide thc evcnt, for a determination of thc material issues presented by this record. Chief Judge DEsa~o.wn and Judges DYE, FULD, FII~OESSEL, VAN Voomns and FOSTER concur. Judgment reversed, etc. Doao~nz Buowx, Individually and as Guardian ad Litton of ROnEr, T Baow~ and Another, Infants, Respondent, v. Bnoo~E Covx~Y, Appellant. Argued October 18, 1960; decided November 17, 1960. Coroners--autopsies--in action based on alleged unauthorized autopsy, Appellate Division properly determined that reasonableness of Coroner's con- duct (Code Crim. Pro., § 773) was question of fact for jury. 1. Tbe body of decedent, a railroad worker whose duties included assisting in the assembling and coupling of freight cars, was found between tracks in a railroad yard with the left hand partially severed. In an action based on an BROWN v. BIIOOME COUNTY [8 NY 2d 3301 :;31 Points o£ Oounsel alleged unauthorized autopsy performed at the direction of a Coroner on the body of decedent, the Appellate Division properly determined that the reasonable- ness of the Coroner's conduct (Code Crlm. Pro., } 773) was a question of fact for tbe jury. The reasonableness of the grounds for directing an autopsy may not this ease be treated as a problem of law alone. Where tim nature of the work, tim duties of deeedent~ the site of the work mnl the scene of dcatb disclose eonditlons which often accompany aec(dents resulting in death, there should be substantial reasons present to justify the need for an autopsy. Since the d~,atb was unwit- nessed and could have been caused by the injm'y to the band, an autopsy wouhl not lead to signs of criminality or point to a suicide. In tile circumstances, an appraisal of the sensibleness of the dee(sion directing an autopsy involves a finding of 2. goinder of the Nfant children of deeedent as plaintiffs was permissible. Brown v. Broome County, 10 A D 2d 152, a~rmed. APPgAb from a judgment, entered March 2S, 1960. upon an order of the Appellate Division of tho Supreme Court in thc Third Judicial Depar/meaf which (1) reversed, on ~]~o law aud thc facts, a judgment o~ thc County Conrt of lh',mme ('onnlv (Romm~ 0. Baxter, J.; opinion 20 ~[isc 2d ~)08), cntcr.d upon decision of the court granting a motion by defendant, made at the conclusion of the trial and after the jury had rendered a verdict in favor of plaintiff, and upou whleh the court had reserved dee(sion, to dismiss the complaint, and (2) directed entry of judgment for plaintiff in accord with the verdict of the jury. Charles P. O'Brien and Justin C. P'lan~ti.qa~ for al)pcllanl. I. The autopsy was legally ordered. York, 181 Misc. 882.) II. Children are not entitled to in(lament. ( Gostkowski v. Roman Catholic Cburcl~, 262 N. Y. 320; Trammell v. City of New York, 193 Misc. 356.) ][I. l)ama~os were exces- sive and, if verdict is not set aside, it should be reduced. (Volts v. Blackma~5 64 N. Y. 440; Graw~tmler v.. Beth lsr,~l llosp. Assn., 242 App. Div. 56 ;' Gostkowski v. lloma~ Catholic Cb~trch, 237 App. Div. 640, 262 N. Y. 320; Gouhl v. Stale of New York, 181 Misc. 882.) William K. English for respondent. I: An action for an unau- thorized autopsy is a well-established principle. (Foley v. Phelps, 1 App. Div. 551; Darcy v. Presbyter(aa liosp., 202 X. Y. 25~; Grawunder v. Beth Israel Hasp. ~tssn., 242 App. Div. 56: Gould v. ~tate of New York, IS1 Mtge. Page 11 Public Hearing Southold ZBA 6/30/92 APPEAL # 4091 Applicant(s): Eugene M. LaColla Location of Property: N/S of Main Road (State Route 25), at Arshamomoque near Greenport, NY County Tax Map No: 1000-56-4-24 & 19 The Chairman reconvened the hearing at 7:58 p.m. CHAIRMAN GOEHRINGER: This is the reconvenlng of the Eugene M. LaColla hearing from May 7, 1992. Mr. Cuddy, is there anything you would like to add for the record? CHARLES CUDDY~ ESQ: Yes, for the record, I am Charles Cuddy. I represent the applicant Eugene LaColia and also other members of his family. I just want to refresh the Board a little bit, that this parcel, which is approximately five (5) acres. On the VanTuyl map it is shown as 5.4 acres. This is essentially behind "Hollister's" and along the Main Road to the east of the pottery place. And essentially what we are asking for is that, that area which is approximately two hundred fifty (250) feet on the Main Road be changed use-variance wise so that we can have some business use of it. The reason for the application is rather simple. The LaColla's have had in their family, since 1960, at the time of their father's death, this parcel. The entire parcel is twenty-eight (28) acres and consists mostly of wetlands. Twenty-one to twenty-two (21 to 22) acres by our estimate, is actual wetlands. We propose that we would use the upland parcel, which is within a hundred feet of the wetlands, that is everything would be set back at least a hundred feet, to mitigate any environmental concerns. And we propose that we have some business use of what is now an R-80 zone. The zoning, as you may recall, is strange because the zoning is both M-II and R-80. I think that to go back again to what we are here about, is to talk about use variances. And I wasn't satisfied last time and maybe we hit with every member of the Board on all of the standards for use variances, so I would just like to review them quickly, if I may. The unnecessary hardship rule differs from practical difficulties. Practical difficulties are for area variances -- the unnecessary hardship rule is for use variances. When that rule was set forth on the Otto v. Steinhibler case, the Judge indicated that there were three (3) standards that had to be complied with. First, you had to show that the land had no reasonable yield to it. Secondly, you had to show that it was a product--this application is a product of a unusual circumstances, and unique circumstances, that face just this particular parcel and this applicant. And third, you had to show that the character of the area didn't change. I want to go to the first standard because there was a question, that I think from at least one (1) of the members of the Board, as to what the failure of a reasonable return was. That is a lack of a reasonable return. The return to do, as I understand it, is simply this parcel. The return is based upon several criteria. One is the purchase price of the MR. CUDDY (con't.): acquisition value. What we said about that was the LaColla's got this parcel in 1960, they got it at approximately forty-five thousand dollars ($45,000.00), they submitted the affidavit of appraisal in connection with that. That was for estate tax purposes. We use that as a basis for this parcel. We also talked about the present value and Mr. Stype is going to testify further about the present value. But, we indicated to you that we could have at best get two (2) parcels in the R-80 district. We get two (2) parcels, those parcels together would be sixty thousand dollars ($60,000.00). Also, one of the issues or standards that is used is what are the expenses for the pavcel. Well, the~e are no expenses for the parcel except for one thing--and that is taxes. The taxes that are involved from 1960 to 1992 are in excess of forty thousand dollars ($40,000.00). I say that because I have looked through the County records personally, and that is my personal knowledge that I am giving you. There is no income from this property, and that is probably the fifth thing. So, ~" · we are talking about purchase price or acquisition value, the present value, the expenses, the income, and the taxes. When you add that all up, the LaColla's have approximately right now eighty-five thousand ($85,000.00) in this property. It is our position that the property as a whole and also the 5.4 acres, which is dealt with on the same basis, doesn't produce any reasonable return. We can't use it as it is zoned. And I want to remind you that this is a split zoned property. And the split zone isn't a casual thing because you are talking about M-II, which is heavy marine verses R-80 which is really a light density residential district. This isn't a quarter acre, half acre or acre, this is two-acre zoning. We can't get a use from this parcel. I would point out to you that when we get to the second criteria, which is unique circumstances, that there probably is no parcel in this entire Town that is zoned and in the locale, like this particular parcel. This parcel is between the railroad tracks and the Main Road. It consists mostly of wetlands. It has probably a depth of two hundred (200), maybe two hundred and fifty (250), three hundred (300) feet at most in some places, and in some places one hundred and fifty (150) feet to a (100) hundred feet to use. The usable part of this property is really along the Main Road and that is the part that is zoned R-80, and that is the part that we are supposed to put houses in. And I think both brokers are going to testify that is just not a possibility. It is a figment of somebody's imagination to really talk without using that for residential purposes. But that is the way it is zoned and that is what we are faced with. I say to you that is absolutely unique. And even more, I think the character of the area is not at all changed by this. I would point out to you that one of the people last time that was up opposing the application, indicated that there was virtually an unbroken chain of commercial use from Greenport to Southold and this would complete that chain. I think that is irrefutable, that there is commercial uses along this road continuously. And we say to you that doesn't change the character of the area in the least bit. And, I would ask for relief because I think the LaCollas need relief. That is what this Board is about, that is what use variances are about and I would hope that the Board uses its Page 13 - LaColla Public Hearing Southold ZBA 6/30/92 MR. CUDDY (con't.):own knowledge, which it can do, of this particular locale. I would like to testify on behalf of the applicant, the broker Mr. Stype.. ANDREW D. STYPE: Thank you very much Charlie. I am Andrew D. Stype. I own and operate under Stype Bros. Real Estate in Mattituck and I would just like to reiterate that the, I had appraised the property back in May. We had felt that there is a base law suit to the owners of about eighty-five thousand dollars ($85,000.00). There has been a lot of talk about the rate of return. We have to measure that in the equity in the actual land value. There are some out buildings on the property, there are some pretty small cottages that hardly have any value at ail. The only value is going to be in its land, and also in its uses. Under residential use, there is hardly any value at all. It is a horrible ~pot to have any kind of residential property there. They have a lot of wetlands, and all around you, you have a commercial property, you have a restaurant, you have a marina, you have other things, which really hurt any kind of residential value. Your whole value is going to be in the commerical property, definitely. It has a higher rate of return, for an example, the owners have a base vaiue of about eighty-five thousand dollars ($85,000.00). If it has business use, it has a value close to two hundred eighty thousand dollars ($280,000.00), that has a rate of return of just over three hundred percent (300%). That is a beck of a difference in overall value. If it is under residential value, it is around sixty thousand ($60,000.00) tops and that is a loss to the owners. Any questions? CHAIRMAN GOEHRINGER: Mr. Stype, how long has this property been listed to your knowledge with brokers in the Town and yourself probably included? You probably do have.. You don't have a listing? _ MR. STYPE: No, I don't. I don't have a listing on the property. CHAIRMAN GOEHRINGER: Do you have any idea what other brokers have it listed for? MR. STYPE: I had spoke to one (1) other broker, they had explained to me that they had a listing on it for like just over five (5) years. CHAIRMAN GOEHRINGER: Do you know what the figure was that they were requesting? MR. STYPE: No, I don't. CHAIRMAN GOEHRINGER: Your feelings concerning the piece of property east of the building which is an out building to this particular piece and has really a negative residential use. How do you determine that? MR. STYPE: Well, you have your highest and best value if you are highly compatible. It is easier to have a higher value, if you are highly compatible with all the other buildings in the area. If you have just a residential subdivision, it has a higher value, if it is MR. STYPE (con't.):also in an area that has a lot of homes around it Page 14 - LaColla Public Hearing Southold ZBA 6/30/92 obviously. I am also in the real estate sales end, if I have somebody coming in our office and if he wants a residence, he isn't looking Main Road. I mean, he has to have privacy, an awful lot of our buyers have a young family and they don't want to be on any highway. So, it is obvious you have a higher value, if you are off the Main Road area. CHAIRMAN GOEHRINGER: Certainly down the road, east of~ excuse me, west of Albertson Marine, and so on and so forth, I think the sub-division is Willow Point, you have in there half acre lots that do front on the Main Road. Basically, the back of the houses are on the Main Road. With the piece of property that we have here, which is as you mentioned or I think Mr. Cuddy mentioned, is approximately two (2) lots, so I am assuming that it is in the area of one hundred and sixty thousand (160,000) square feet or more. Certainly, there is the ability to screen that from the road to a certain degree. I mean it is already screei~ed, partially topographically and partially with the large trees around it. And, I do understand that under present wetland restrictions from both the DEC and from the Town Trustees that you would be required to probably be back from that pond seventy-five or one hundred (75 or 100) feet, whatever they would require at that point. But, I think there still isan ability to utilize that easterly parcel for residential purposes. I mean, that is just my opinion, I don't know how the other Board members feel. MR. STYPE: You have a good point, but also back in Willow Point it is, you also have a lot of open space in there. You have some open farm lands, you have some other homes in the area. I don't believe back in Willow Point you have any kind of business property back there near the water. CHAIRMAN GOEHRINGER: Does anybody else have any thoughts on that? Bob? Jim? MEMBER DINIZIO: Well, I think the sixty thousand dollars ($60,000.00) is still a little low for .... CHAIRMAN GOEHRINGER: You mean something fronting on a pond? Is that what you mean? MEMBER DINIZIO: Yes. I mean, I went back there, there is two (2) residences there. Now whether they, it appeared to me like they were going to be used, if they weren't used already. I see that as being a value. I want to be upfront with you. I see that as being a value and to my own mind, if that were on the market for sixty thousand dollars ($60,000.00), I would be at the bank tomorrow. If it were on the market for eighty thousand dollars ($80,000.00), I would be there, because I did stand on the hill. And it is, to my mind, there is an offset with looking at the water and being on the Main Road. So, I just wanted to let you know that is how I am thinking, I think you could get two lots out of that and it could be more. MR. STYPE: It is highly possible. At this time we spent a market place though, it is awfully difficult to have to sell any kind of home Page 15 - LaColla Public Hearing Southold ZBA 6/30/92 sites. There is a tremendous amount of vacant land out there, that has been available a awful long time. The biggest reason why is because your resale is dropping so much. And there is not a lot of interest in any homesites at this time. We have a lot of places now, we have some lots that have sold twenty-five, thirty thousand dollars ($25,000.00, $30,000.00) a lot. CHAIRMAN GOEHRINGER: There is no contest on the fact that it is a very heavily traveled road and it is a very, very dangerous road, there is no question about it on that turn. And we have known that there are many, many accidents there. And I think one or two people were killed over the years, no question about it. There is no contest there. I certainly agree with you. Is there anybody on the Board that has any specific questions of Mr. Stype? We thank you very much, Mr. Stype. Mr. Cuddy. MR. CUDDY: I would ask Mrs. Feavel, Mary Ann Feavel if she would testify. MARY ANN FEAVEL: I have a signed affidavit here that I would like to read. Mary Ann Feavel being duly sworn, deposes and says that: (1) I am a licensed reai estate broker and have acted as an agent for parties selling real estate throughout the Town of Southold in hundreds of sales and also have bought and sold real estate in the Town of Southold for more than fifteen (15) years. (2) during that time I have become familiar with the LaColla parcel, that is the subject of the use variance application before the Zoning Board of Appeals. (3) I am familiar with the zoning of the subject parcel and the provisions of the Town Code effecting the parcel. (4) this twenty-eight (28) acre parcel located at Arshamomaque and identified by tax map numbers 1000-56-4-19 & 28 and the five (5) acre parcel which is part of that cannot be sold for R-80 purposes and cannot be used for any of the permitted uses set forth in the R-80 section of the Town Code, Article III. The parcel is substantially covered with wetlands, is adjacent to commercial uses and is located between the Main Road, NYS Route 25 on the south and the Long Island Railroad on the north. (5) based on its location on the Main Road between Greenport and Southold, in my opinion, the only viable use for this parcel is to make use of the upland area on a commercial basis. Otherwise, the property will not return any reasonable yield to its owners. In this connection, I reiterate that the LaColla parcel cannot be sold for R-80 uses, section 100-31, that is one-family detached dwellings, agricultural operations, as well as those uses permitted by special exception, a copy of which is annexed to my signed affidavit. (6) I make this affidavit not only based upon my years of experience as a broker, but also based upon my familiarity with the locale in which the property is located. Noting that to the southwest of this parcel and to the west of this parcel, there are marina use MS. FEAVEL (con't.):districts and that the land immediately contiguous to the applicant's land contains business uses. It is my opinion, that without the relief requested, the parcel cannot be sold Page 16 - LaColla Public Hearing Southold ZBA 6/30/92 and cannot be used. Aside from the affidavit that I just read, I have gone back, ! have looked at it again. It is my honest opinion that it does not have any economic use the way it is currently zoned. There is, to reiterate what Mr. Stype said, there is so much real estate for sale. People do not want to live or build on the Main Road. Now, in reference to the Willow Point area, that is completely different from this area. It is not surrounded by commercial use, by a restaurant, by a marina, by a pottery store. It is a residential area, it has a private beach, it has a canal where people can dock boats. It is completely different than a two (2) acre parcel located on Route 25 in Southold. CHAIRMAN GOEHRINGER: Well, let us take... I don't mean to stop you, let us take Dolphin Drive and Albacore Lane and Tarpon Drive. MS. FEAVEL:' Very nice section. Southold Shores. CHAIRMAN GOEHRINGER:Directly across the street. MS. FEAVEL: Correct. CHAIRMAN GOEHRINGER: Are there lots fronting on the road in those subdivisions. MS. FEAVEL: There are lots fronting on the road and there are no Buildings, or no houses on any of those main road parcels. CHAIRMAN GOEHRINGER: Is that because of topography in reference to low ground water? Or is that because... MS. FEAVEL: There are a couple of problems with that particular area. There is a heavy clay area of building. It is a ~zery nice area, but you go into one road, it splits off, then you get into the community. It also has a beach, it also has its own private marina, if offers something other than two (2) acres on the Main Road. It is a residential area, it is directly across the street, but it is completely different. I just sold a house in there. When you are in there, standing on that lot, you don't know that there is a restaurant, there is a marina, it is completely different. CHAIRMAN GOEHRINGER: Go ahead, I don't mean to mess you up. Let me just ask you one other question. Have you had this property listed in your office? MS. FEAVEL: Mr. LaColla came into my office approximately a year and a half ago, with a map, with everything, sat down and discussed it, give me the listing. I would not take the listing because I could not sell it. At that time, he sat and he said that he had had it listed with other brokers. I do not know who they were, I didn't ask, and MS. FEAVEL (eon't.): Page 17 - LaColla Public Hearing Southold ZBA 6/30/92 not one phone call, not one offer, not anything. And he basically sat down and said "Help." And I said that you have got to get, we looked up the zoning, he had everything with him, it was R-80. And I said, it is not goingto work. I cannot sell it. There are lots out there now that people can buy for fifty thousand dollars ($50,000.00), not located on the Main Road. It may not be a two acre parcel, but the locale is much better. You can buy...possibly even under a half and acre for forty-thousand dollars ($40,000.00) It just doesn't make sense the way it is currently zoned. CHAIRMAN GOEHRINGER: Is the figure that Mr. Stype is coming up with, if this figure is correct of sixty thousand dollars ($60,000.00) for the wooded area, east of the existing out building, which is the house. A conservative estimate, could you sell those lots for thirty, if there were two eighty thousand (80,000) square foot lots, could they be sold for thirty thousand dollars ($30,000.00) dollars easily? MS. FEAVEL: They possibly could be sold for the thirty thousand dollars ($30,000.00). I currently, right now, could not say, that I could pick up the phone in my office and call someone and offer it to them for thirty thousand dollars ($30,000.00). And I have people who are looking to buy property, and their No. 1 statement is, I don't want to live on the Main Road, find me something somewhere else. Even if I have to pay a little bit more, I mean, I have heard a couple of people in a room say that they, if it was that amount of money, .that they would go buy it, but it hasn't happened yet. CHAIRMAN GOEHRINGER: The only reason I say that, in standing on the hill overlooking the pond, they are relatively spectacular, that is really a spectacular piece, there is no question about it... I mean the access again is a problem, there is no question it. But, that is a nice parcel. MS. FEAVEL: Okay, but you also have to keep something in mind, and I don't mean to be the least bit sarcastic-- we all live where we live now, we have our houses, we are not looking to buy. So what we think might be spectacular, it's not ours. We are not building a house there. If somebody offered it to me or if somebody gave it to me, I would probably say thank you, but no thank you. Because I personally would not want the parcel. (Tape turned over) CHAIRMAN GOEHRINGER: Is there anything .... I didn't mean to cut you off. Let me just see, are there any questions of Mrs. Feavel? I should point out to the Board or the audience, I had been a licensed real estate broker since 1975. I have taught real estate. I teach zoning and I have known Mrs. Feavel for over twenty (20) years. I do not presently sell real estate and I have not sold real estate since 1986, okay. And just so that you are aware of that situation and these people still have been under oath from the last meeting that we have had. And I have no questions of either Mr. Stype's credentials or CHAIRMAN GOEHRINGER (con't.): Mrs. Feavel credentials. They are both excellent, excellent brokers, that I have known over the Page 18 - LaColla l)ub lic Hearing Southold ZBA 6/30/92 years. I have known Mr. Stype for twenty (20) years, too, or longer. Any other questions? (None) Thank you. MS. FEAVEL: Thank you. MR. CUDDY: Mr. Chairman, I just like to put in affidavits -- a synopsis of the testimony of both Mr. Stype and also of Ms. Feavel. CHAIRMAN GOEHRINGER: Thank you. MR. CUDDY: Also, I would like at this time to ask Mr. Eugene LaColla to give his testimony. CHAIRMAN GOEHRINGER: How are you again tonight, Mr. LaColla. must understand the purpose of my being up here is to ask these questions, so; that is basically, that is why I am doing it. Okay? You MR. EUGENE LACOLLA: I probably have to be sworn in or something? CHAIRMAN GOEHRINGER: No, you are still sworn in from the last hearing. MR. LACOLLA: I am going to read this (affidavit), okay? CHAIRMAN GOEHRINGER: Sure. MR. LACOLLA: I, Eugene M. Lacolia, being being sworn ~lisposes and says that: 1) I am one of the owners of the twenty-eight (28) acre parcel located on the north side of the Main Road in Arshamomaque in the Town of Southold, having succeeded to my father's interest in the premises with my seven (7) brothers and sisters at the time of my father's death. In connection with the application made before the Zoning Board of Appeals, I represent my brothers, sisters, and myself, have submitted the entire parcel to many brokers throughout the Town of Southold over a period of twenty (20) years or more. And have never once received an offer to purchase the parcel at any price. I verily believe and submit that the part of the parcel as zoned R-80 cannot be utilized for any other purposes set forth in the R-80 district. And have therefore requested a use variance to permit commercial uses over the upland portion of the property, which is presently designated R-80. 4) I request that the Board note, that since my father's death in 1960, my brothers, sisters, and I have expended more than forth thousand dollars ($40,000.00) in real property taxes. The present yearly tax is thirty-four hundred dollars ($3,400.00) approximately, while the value of the real property in 1960 was sixteen hundred dollars ($1,600.00) per acre or forty-five thousand ($45,000.00) for the twenty-eight acres. The total value of the usable portion of the parcel, today, is sixty thousand dollars ($60,000.00). Assuming a modest value for the wetland acreage, we have held this property for thirty (30) years without any increase in the value. In effect, there is no reasonable return for this parcel, which has been held in my family and retained MR. LaCOLLA (con't.):in pristine condition, for more than thirty (30) years. (5) At one time, the parcel had summer cottages used by Page 19 - LaColla Public Hearing Southold ZBA 6/30/92 members of my family. They had limited use. They were abandoned years ago and now are inhabited by raccoons. The locale is not residential in character, and not only have we not been able to sell the entire parcel for residential purposes, but the cottages could not be rented and there has not been any income from these premises. (6) In connection with this application, I again offer to maintain the substantial wetland area of this parcel in its natural condition and if appropriate, to place a scenic easement over the wetland and unused upland portions of the parcel. (7) In addition, I offer on behalf of myself, my brothers, and my sisters to dedicate a ten (10) foot strip to the Town or State, as the case maybe, which strip of land runs parallel to Route 25. (8) My family has retained this parcel essentially in its existing condition for more than thirty (30) years. We have gotten Httle or no use from the land and with its present zoning have no expectation of realizing any use for income from the parcel. Therefore, I respectfully request that the use variance be granted permitting us the business use of the few upland acres adjoining Route 25. Thank you. CHAIRMAN GOEHRINGER: Thank you, Sir. Can you just give me an idea of when the last time that the houses or the house and trailer were Hved in? MR. LACOLLA: I would say the shack, we called it, that is over twenty-five (25) years since anyone lived in there. The .trailer, I would say, probably around fifteen (15) years or more. I am not sure of that because my sister put that trailer on the property and rented it out and received an income from that. She supposedly said that she used the income to pay the taxes, but we were always asked every year to come up with our share. CHAIRMAN GOEHRINGER: I thank you, are there any other questions of the Board members of Mr. Lacolla? Gentlemen? (No questions) Thank you, sir. MR. LACOLLA: Can I just say something? CHAIRMAN GOEHRINGER: Surely. MR. LACOLLA: I haven't lived out here in a long time, but I remember across the street where Southold Shores is now. That was all wetlands, too. It was all filled in and homes were built there. We didn't do that to our property. And when I heard Mr. Flynn the last time here, talking about the number of driveways and so forth, you know, he is in all the environmental things. I mean, to be fair, that is not fair to allow that to be filled in and our property not to keep · it as a residential. We are paying taxes on it. The Town has the best of both worlds here--coliecting taxes for residential property, which cannot be built on because of the wetlands, and we are still suffering here. The other thing was that some years ago, I think that that is about twenty MR. LaCOLLA (Con't):(20) years ago too, they dredged Mill Creek, put pipes across our land and put on across the railroad tracks on what Page 20 - LaColla Public Hearing Southold ZBA 6/30/92 is called Cassidy's. I don't know why they didn't approach us, to say "Do you want the fill?" Just bypassed us. I don't understand this. I think, you know, we are all getting older as I said. I just turned sixty-five (6§) and I am one of the youngest ones. I have a sister seventy-eight (78) years old. If one of us die, our children are not going to maintain this property. They don't want to get involved in this brouhaha, if that is how you say that word. CHAIRMAN GOEHRINGER: Pretty good. MR. LACOLLA: I am really pleading that you to see our point. Thank you. CHAIRMAN GOEHRINGER: Thank you. Mr. Cuddy? MR. CUDDY: Finally, I would ask Mr. Rumpf if he would give his testimony. MR. RUMPF: Mr. Chairman and members of the Board and members of the audience, who might be interested, my name is Tim Rumpf. I am a landscape architect. I am a principal in a firm called Design Properties Northeast. We have an office in Ronkonkoma. Just a little background, I don't know if I gave it last time, I have worked in Southold. I have been a consultant to the Town of Southold in planning matters and also in matters of landscape architecture. I am presently a member of Architectural Review Board for the Town of Riverhead. I am a consultant to the Town of Southampton and the Village of Southampton. When Mr. Cuddy and Mr. Lacolla called our firm with this unique problem, we looked at it, again from a planning point of view, noticing that there was a heavy marine, M-II zoning on the sort of western portion of the site. And looking at how that related to that R-80 low density residential zoning, didn't quite make sense in that area because of the proximity to Route 25 and the Long Island Railroad. In many areas on Long Island, you will see a heavy use buffered by either by a lower intensity commercial use or a medium to high density residential use. We looked at both of those, immediately threw out the low to high density residential use based on Health Dept. requirements, and thought that a more general business or low intensity commercial use might have a better, more suitable impact on the site in terms of sanitary, water use, and also the proximity of the wetlands that we could hold the actual building far enough away and actually increase the setbacks greater than what the DEC and the Town Trustees might want. And so from a pure land use, land planning point of view, we developed the sketches, the conceptual site plan that you see in front of you on those bases. Backing up using the more intense commerciai use around the M-II zone and going into that little hill area that I believe the Chairman and one of the members was out on, using that as the more low intensity commercial use. And that is basically where we were. Any questions at aH? CHAIRMAN GOEHRINGER: Any questions, gentlemen? Page 21 - LaColla Public Hearing Southold ZBA 6/30/92 MEMBER VILLA: Yes. I have a question. You know, we have heard the value of the land or what they purchased the land for and the taxes they paid, but there stili is a piece of M-II land that is left there between the restaurant and the other commercial piece there. What is the value of that, that has to have a significant value? MR. RUMPF: I think it might, but it is a very awkward piece to work with. MEMBER VILLA: It is a hundred by two hundred (100 x 200). That is a basic half-acre piece of property. MR. RUMPF: Yes, but I think for a commercial, a heavy commercial use, it is a very awkward piece to get access to, and to work with in terms of buildings and circulation. I mean that, that, I agree with you, but that is only one portion, I mean that is a half acre out of thirty acres. MEMBER VILLA: I grant you that, but we haven't heard any value attached to that piece of property. Ail we have heard is sixty thousand dollars ($60,000.00) versus the eighty-five that this thing is worth, but... MR. RUMPF: I might also mention to that vaiue, I think that you are talking about raw land and I think they still have to go through the subdivision process, which could take them one to two (1 to 2) years and engineer's expenses, so I think they are not even adding on the expense of a planning and development process to get them to a buildable parcel that they could go and get a building permit for. So, I think that thirty thousand dollars ($30,000.00) is going to be a little bit more than just that amount per lot, based on getting the approval process and getting it approved to get a building permit. But, I agree, that half acre obviously is zoned M-II and that does have some value, but compared to the overall site, it is a little difficult. CHAIRMAN GOEHRINGER: I don't have any further questions of this gentlemen. Thank you, sir. Mr. Cuddy.? MR. RUMPF: I have an affidavit as well that I would like to submit. CHAIRMAN GOEHRINGER: Oh, great, thank you. Mr. Cuddy, could I just ask you a question, have you, most recently, done any subdivision of the land in the Town of Southold- a residential subdivision before the Planning Board? MR. CUDDY: I have residential subdivisions before the (Planning) Board, but I have not completed one of these. CHAIRMAN GOEHRINGER: Do you have any guesstimate on what it would cost to subdivide the easterly portion of this property into two (2) CHAIRMAN GOEHRINGER (con't.):lots? Bearing in mind that there wouldn't be any roads, you know. Page 22 - LaColla Public Hearing Southold ZBA 6/30/92 MR. CUDDY: If there is no read, I would estimate that probably the cost would be between forty-five hundred and five thousand dollars ($4,500.00 and $5,000.00). CHAIRMAN GOEHRINGER: Okay, is there, either one of your two real estate brokers here, is there any estimate, in reference to what the hall acre of... First of all, it is seventy-five (75) in back of the existing out building on the easterly side, which used to he the pottery place. The parcel is seventy-five by two hundred (75 by 200), apart from the dog-leg so, is there any guesstimate in reference to, I am not referring to this in a trite fashion when I say guesstimate. I am referring to it in laymens term, but you know, that we can understand okay, on what the value of that parcel might be? MS. FEAVEL: Mr. Goehringer, when I looked at the map before, I meant to mention something when I was up there. As M-II zoning, yes, it does have value, the problem is competition. Already, directly across the street is Goldsmith's Marina Boat Yard. Unless Goldsmith's Marina Boat Yard would want to purchase that area, no one is going to bring in an additional, in my estimation, any kind of business or whatever that could go on the M-II when you've already got an established, for years, Goldsmith's. Now, the M-II zoning is not connected at all to the water, which, to me, makes no sense what-so-ever. M-II zoning, the best use for it, is to have some type of attachment to water, which this has none what-so-ever. In actual value, basicaliy it would come down to be, if Skip Goldsmith wanted to buy it, it is what Skip Goldsmith would be willing to pay for it. Because I don't think anybody else would buy it, not with Goldsmith's directly across the street. What other kind of M-II could you put there that isn't already there. CHAIRMAN GOEHRINGER: We will certainly, in this environmental economy as things may come back hopefuliy, there maybe a change in that. I can understand your opinion on that. Mr Cuddy, would you mind if I asked Mr. Stype the same question? MR. CUDDY: No. MR. STYPE: Yes, Jerry, we have some property just, compared to the property, just to the west of it, opposite Port of Egypt Marina. It is on the other side of the street. There acre sizes and it is owned by this guy from Shelter Island, he has been trying to sell those properties now for a long, long time. And I think they are each about a half acre in size and he is now asking eighty .thousand dollars ($80,000.00) and he can't hand them away. CHAIRMAN GOEHRINGER: You are referring to two (2) open parcels that Port of Egypt stores on a little bit... MR. STYPE: Right, like they have a lot of storage of boats on that side of the road. It is just to the east of that. Page 23 - LaColla Public Hearing Southold ZBA 6/30]92 CHAIRMAN GOEHRINGER: Okay, alright. Thank you. Yes. Mr. Cuddy. MR. CUDDY: Can I also venture an answer? CHAIRMAN GOEHRINGER: Surely. Although the figure you have given me concerning five thousand dollars ($5,000.00), is that primarily attorneys fees plus engineering or is that pretty much .... MR. CUDDY: Primarily they were survey, engineering, some attorneys fees, of course. They would be some filing fees. The Town has, I think exorbitant fees for small lots, but yes, that includes basically all those. CHAIRMAN GOEHRINGER: Okay, thank you. MR. CUDDY: The answer, I think to Mr. Villa's question, he asked, what kind of value would you associate with that hundred by two hundred piece, which is the half acre. Your association for a little guy because my recollection that the M-II district unfortunately as pointed out. by Mrs. Feavel is essentially a marina II district, heavy marina, but you have to have had associated with some sort boat operation. In other words you have to have a boat yard, you have to have a marina, and then they can use it for accessory use purposes. Then it has real value to it. In the abstract, my recollection again was that, one of the few things you could do is build a restaurant. Unfortunately, there is a restaurant within three hundred (300) feet of this, there is another side of the street. So, it is doubtful that somebody would build a restaurant. But I think abstractly, there is very little you can do with that piece. I think you have to use it in connection with what the zoning says and again, it is my recollection that the zoning says you have got to use it for boat-type purposes. In other words, boat yards, marinas, and then you can make use of it. And you can't use this piece. Why it was zoned like that is a real good question. But it is zoned that way and I think it virtually makes that piece by itself, not a good useable piece of land. CHAIRMAN GOEHRINGER: Thank you Mr. Cuddy. I will proceed now through the hearing and we will, if it is alright with you. Is there anybody else who would like to speak in favor of this application? Anybody like to speak against the application? Yes, Mrs. Flynn. How are you tonight. You are still under oath from the last time. MRS. FLYNN: Yes. And while you were talking about brokers The question came up about Southold Shores and Mrs. Feavel said that when are in Southold Shores you don't realize that you are so close to the highway and other things. And I think that as a broker, and I have been a broker for twenty-two (22) years now, the access for property, may it be the access or the approach, the traffic, the increased traffic, the safety of the people going to the property, MRS. FLYNN (eon't.): leaving the property is of great value to the property. All we can say now, Southold Shores is ali by itself and it won't be hurt is wrong, because if the approach is being devaluated or changed to a heavy commercial use, as you pointed out, I most Page 24 - LaColla Public Hearing Southold ZBA 6/30/92 certainly think it will effect the value and the safety and the health of our properties in Southold Shores. Incidentally, I only arrived late last night from Washington D.C., I go shortly at the office, I just ran home. But there was last year a house sold, just west of the overpass on the north side of 25 and I will submit, if I may tomorrow the proper Hber and page and selling price of that price, but it was a very substantial price and the house was sold to our office by my associate. So, I don't want to misstate any prices, but I will check it out tomorrow. Also, talking about no houses sold on the Main Road, we just sold a house or closed on a house in todays market in East Marion on the Main Road and you would say, oh, that is East Marion what has this to do. Well, if we would just think about the Main Road, I think that the traffic is much heavier on 25 there than it is here, by us it is 25, because they have the additional traffic from the North Road going out to the ferry. And the house was sold for one hundred and seventy-five thousand dollars ($175,000.00). And, the property you were talking about, which could not be sold for eighty thousand dollars ($80,000.00), I think that property has a ditch as a frontage. Doesn't it? MR. STYPE: No. MRS. FLYNN: Is there only one entrance. MR. STYPE: It is all filled in. MRS. FLYNN: Yea, oh it is.much poorer because it filled in land. Still and all I want to talk to many people and talking to people and explaining this, people are a little bit upset that this is a question of a variance, because I really think this is an application for a change of zone and it doesn't belong here. Thank you. CHAIRMAN GOEHRINGER: Thank you. This lady right over here. Ma'am, were you with us for the last hearing. No, I wasn't able to be here. MRS. FLYNN: Oh yea, excuse me, I was not west of the overpass, it was west Mill Creek, the house that was sold. So this house which was sold for quite a parcel of land, it backed up to the railroad in the back, it had the marinas across the street, Port of Egypt. It had the restaurant across the street. CHAIRMAN GOEHRINGER: This was the old antique shop, right. MRS. FLYNN: That is right. It was old. It was nothing. BOARD SECRETARY: It is all zoned M-II right there. MRS. FLYNN: And it also in our office and would like to give you the exact llber and page and selling price, and mortgage ~nt~ormation. I can pull it up for you tomorrow. Page 25 - LaColla Public Hearing Southold ZBA 6/30/92 CHAIRMAN GOEHRINGER: Thank you very much. Could I ask you to raise your right hand and do you solemnly swear that the information you are about to give us is the truth to the best of your ability? GAIL STARKIE I do. CHAIRMAN GOERHINGER: State your name please. MS. GAIL STARKIE: My name is Gall Starkie and I live on Parker Drive. CHAIRMAN GOEHRINGER: How are you. MS. STARKIE: And I have several points that I would like to make tonight if I may. Several points that have been made before, I'm sure. I missed the last meeting because of illness, I did write a letter in. I am concerned that a portion of the road known as "Tavern Turn" and that in the last year there have been two (2) fatalities. Supervisor Harris has recently indicated that a DOT investigation regarding the curb is already under way. Allowing a commercial venture in this spot would create unnecessary safety hazard. One only has to do visual inspection, in fact, Mr. LaColla said it himself, of the area to see that it is a virtual wildlife preserve, created by nature over the years. The property in the adjacent waters should not be desegregated by the planting of shops. If we look at the number of vacant shops in Southold Township and the businesses that close weekly, there is an almost empty shopping center on the North Road by Burn's Delicatessen, Sterlington Commons in Greenport is another example of our empty, unused, overdeveloped, commercial ventures. Feather Hill only recently filled there empty shops and that took several years and I am sure some changes in the rental agreements. The LaColla further state that they cannot sell. They are not alone. I personally own a lot that I cannot sell in Greenport. It has been on the market over three (3) years and it has been reduced substantially. In' fact, I was offered thirty thousand ($30,000.00) less than I paid for it recently. But, I don't have the luxury of appealing for a zone change. I can choose to sell it at a loss or I can wait. They should have the same choices. Also, I question about the Master Plan and what is happening there and what are the recommendations. I like and many others like me, moved to Southold because of its beauty and its closeness to nature. If I wanted to be close to shopping centers and more shops, I would have stayed to the west. In addition, I have a petition that we put together, which states "we, the undersigned, as residents of Southold Township are opposed to application No. 4091 - Eugene M. LaColla. This petition reflects our opposition to proposed change in status from residential to non-residential specifically said property at north side of Main road (State Route 25) at Arshamomaque near Greenport, etc. and that has thirty-nine (39) signatures, which I submit to you. CHAIRMAN GOEHRINGER: Thank you Mrs. Starkie. We now go to the Mr. Flynn. Mr. Flynn, could you just give me an approximate time limit on how long you think you are going to be speaking. Page 26 - LaColla Public Hearing Southold ZBA 6/30/92 MR. FLYNN: Well, this is a rather, I have to make a rather lengthy presentation, because this is a rather involved question here and there are definite parameters, governing granting of a variance and I would like the people here, who may not be informed, the people in opposition, may not be informed to realize these parameters in case of litigation in the future. CHAIRMAN GOEHRINGER: The reason why I ask you that question, I just want to take a short break prior to your discussing, your discourse, if that is all right. Yes sir. I Would like to say something. CHAIRMAN GOEHRINGER: Surely. Can we just take a short break and we will right back with you, unless you are leaving. Well, no, it is just very, very short. CHAIRMAN GOEHRINGER: Sure, go ahead, were you here the last time sir. MR. BRICKMAN: My name is Mr. Brickman. I live on Tarpon Drive. I am not very familiar with the procedure here, so you will have to excuse me. I just want to reiterate that my wife and I feel very strongly about this. What Mrs. Starkey had said is true, we feel very strongly about this changing of zonlng, we also mo~ed here, we also moved from a crowed area in East Northport out here, because we like it out here. I did business out here. And to have commercial right across the street from us, we really don't want it, we really don't want it. Things are bad enough. I have property too in East Northport that ! can't sell. I have stores that I can't sell, I can't rent. Things are bad. Why put the screws to us because he has hardship. We all have hardship. And basically, you've got to go with the flow. And that is basically what I want to say. CHAIRMAN GOEHRINGER: Thank you sir. With everybody's indulgence, we will take an approximate three (3) minute recess. We will right back to you in two (2) minutes. Okay. (Short Break. Reconvened) MR. MITRANO: I own Greenport Pottery. CHAIRMAN GOEHRINGER: You had spoken the last time, right? No I didn't. SECRETARY KOWALSKI: How do you spell your last name please? CHAIRMAN GOEHRINGER: How do you spell your last name. MR. MITRANO: M-I-T-R-A-N-O. I purchased the property September of 1980. Page 27 - LaColia Public Hearing Southold ZBA 6/30/92 CHAIRMAN GOEHRINGER: Could you raise your right hand also. Do you solemnly swear the information you are about to give us is the truth to the best of your ability. I was just going to tell you that. MR. MITRANO: I do. I have lived on that piece of property since. To the best of my knowledge for the last thirty or more years, it has been primarily a residence. Square footage wise, it is approximately one-third or less devoted to commerciai use. And, as far as I know, it has always been that way. As far as the buildings behind me, they have been occupied in the past, since I have been there. I think since 1980 to approximately, I don't remember exactly, to about 1984, both buildings were occupied. In fact, one building is now being occupied, the trailer is occupied right now. The idea of being sandwiched between a commercial development and the Main Road is pretty unappealing, obviously to me. So, I just need to, you know, oppose this. CHAIRMAN GOEHRINGER: Thank you. Any questions of this gentleman? Thank you sir. Mr. Flynn, you are on. As the last time, you are under oath, the same as last time. We respectfully request that any innuendos that are counter-productive, that, you know, not reflect on and so on and so forth. MR. FLYNN: You will have to be the judge of that. CHAIRMAN GOEHRINGER: Okay, I will stop you. MR. FLYNN: Now, I have divided this statement into three or four (3 or 4) parts. The first concerns ... CHAIRMAN GOEHRINGER: Just turn it down a little bit, the mike. That is great. MR. FLYNN: Incidentally, I will provide you with a copy of this. CHAIRMAN GOEHRINGER: Oh, that is great. Thank you. MR. FLYNN: The first portion deals with the application and supporting testimony. Applicant states that a use variance is sought on the upland portion of the subject property for the reason that,"the property cannot be used as zoned". The business zoned parcel has utility as zoned, witness other parcels contiguous thereto. Any claimed hardship would be self-created. As for the residentially zoned portion, it is, and has been used, in part, for .this purpose. To understand the concept of use, or utility, the basis for value, must be understood. The components of value are: utility, scarcity, demand, MR. FLYNN (con't): and purchasing power. Foremost among these is utility. If a property or object has utility, it has value. Conversely, ff value is ascribed to a property, it must have utility. The applicant's appraiser has ascribed a market value of some sixty thousand dollars ($60,000.00) to the residentially zoned portion of the property for which a variance is sought. Parenthetically, this value Page 28 - LaColla Public Hearing Southold ZBA 6/30/92 was ascribed on an "as is" basis. The property unsubdivided, unapproved. In addition, the area of their requested variance includes a vacant parcel of some twenty thousand five hundred (20,500) square feet in M-II zoning, a parcel which has obvious value. For the the subject property to have the value ascribed or more, it must have utility as zoned. Based on the testimony introduced by the applicant's appraiser, the claim that the property has no use, as zoned, is negated. Under reasons for appraisai, hardship is claimed, ostensibly because the parcel cannot be sold for residential use as zoned, and will not provide a reasonable yield if use is restricted to those permitted by the zoning. All of the property for which a variance is requested is not zoned for residential use. Further, the applicant's appraiser has provided an estimate of market value. Market value is the price a property will bring is exposed to the market; i.e., sales price. Applicant has admitted property can be sold for residential use. Hardship is stated to be unique because of the property's configuration, location and because of the claimed inability to use the property for permitted uses effectively confiscates the property. Ail properties are unique to some degree. If the subject is indeed unique by reason of configuration and location, these factors existed at the time of purchase and should have been apparent to the informed purchaser upon whom market vaiue is predicated. Undoubtedly, these factors were reflected in the property's purchase price. The c!-~m of inability to use the property for permitted purposes is contradicted by the market value ascribed. There is an established principle in zoning law that hardship cannot be recognized if created by the owner or his predecessors in title. Should such a hardship exist, it existed at the time of purchase and was reflected in the price paid. Before the Board of Appeals, we are constantly exposed to the sorry spectacle of owners who have willingly and willfully purchased marginai properties w~th inherent hardship at a nominal price who then attempt to obtain an unconscionable profit by means of a variance. Somehow these applicants remind me of the youth who murdered his parents and then sought pardon because he was an o~phan. The claim is advanced that the inability to use the property for permitted uses effectively confiscates the property. Confiscation, if it exists, must be proven by dollars and cents analysis of each permitted use. Again, parenthetically, the off-hand estimates of value that were produced here, this evening and on the prior occasion, in no way meet the dollars and cents proof required, and must be exhaustedly analyzed for each of the permitted uses. The fact that the property is, and has been used for permitted uses, and market vaiue ascribed, refutes the claim of confiscation. Confiscation is defined by the courts, states that economic value or all but a bare residue of the vaiue of the parce! has been destroyed and only then is it taken established. In effect, the value remains, there is no confiscation. (Tape changed) MR. FLYNN (con't.): of obtaining a variance. The claim is advanced, that the variance, if granted, would not change the character of the district because business uses presently exist at the site and at nearby parcels. If business uses already exist on the site, the claim that property cannot be used as zoned is negated for those Page 29 - LaColla Public Hearing Southold ZBA 6/30/92 portions of the property. The present business uses antedate zoning. Because business use exists here and at nearby properties cannot be used as the pretext for the endless proliferation of business use. Such use must terminate somewhere. It has been held that the mere fact that the premises for which a variance is sought is contiguous to a district where such use is permissible is not grounds for authorizing such use. Business uses cannot he permitted to spread endlessly like a cancer because other business uses, no matter how badly planned, exists in the neighborhood. Should this case then set a precedent for business use opposite on the southerly side of Route 25? The Town Board has expressed its intentions to confine business uses largely to hamlets, and to eliminate strip zoning. These were among the recommendations of the US/UK Task Force which are now considered in the proposed revision of the Master Plan. Granting this variance would certainly conflict with these recommendations. And, again, parenthetically, the strip zoning that exists, east of the overpass and on to the Village of Greenport, the Town's Planners said that that was so environmentally sensitive, it should be kept as open space. The Town Board, in its wisdom, rezoned it for industrial and commercial use, including properties which, are actually in the wetlands. In an obvious attempt to confuse the issue and to make the owner's plight to seem desperate, applicant has introduced testimony as to the value of the property were the variance granted and property to he valued at its highest and best use level. The courts have long held that an applicant is not entitled to a variance based upon the maximum potential value of the property, should the variance be granted. Again, parenthetically, highest and best use is not an issue here, it is excluded from consideration. Further, in an obvious attempt to gain the sympathy of the Board, testimony was introduced as to the ages and financial status of the owners. The grant of a variance runs with the land and is not a personal license given to the landowner. Accordingly, any unnecessary hardship, which would suffice to justify the gr-anting of a variance must relate to the land, not to the owners themselves. Mere personal hardship does not constitute sufficient grounds for the granting of a variance. Now, General Considerations. In the granting of a variance, the public's health, safety and welfare and other general influences and conditions in the neighborhood must be given consideration. In the case of National Merritt, Inc. vs. Robert Weist, et.al., The Court of Appeals held: "However, if there is a legitimate purpose for the ordinance and it is necessarily related to the public health, safety, and welfare of the community, financial loss is insufficient to compel the granting of the variance." While no such proof has been advanced by the applicant, the decision emphasizes the overriding consideration given to the public health, safety and welfare. The highway safety hazards relating to the subject property MR. FLYNN (con't.): are already a matter of public record and concern. Granting the variance requested would serve to compound them. Lots 19 and 24, in their entireties, contain large areas of wetlands. While the areas for which a variance is sought comprise only part of the total area, it is in close proximity to the wetlands and criticai environmental areas, and any improvement would probably have serious detrimental effects thereon. Lot 19 appears to be largely wetlands. The easterly portion of the area for which the variance is Page 30 - LaColla Public Hearing Southold ZBA 6/30/92 sought is zoned for R-80 use and is heavily wooded. The northerly portions of Lot 24 are largely wetlands. Due to the environmental and ecological considerations, both Raymond, Parish, Pine and Weiner, the Town's consultants for the Master Plan, and the Long Island Regional Planning Board recommended that the undeveloped portions of these lots be preserved as open space. In accordance with these recommendations, the R-80 use provided for in the Comprehensive Plan is a reasonable. one. It should be noted that the property to the north, in the Arehamomoque Pond area and to the south, the former Sage property, are classified as critical environmental areas. The pond on the easterly part of Lot 24 lies between the Arehamomoque Pond and the Sage estuary, creating a form of greenbelt from Long Island Sound to Peconle Bay. Under these conditions, the subject application should be subjected to intensive SEQRA review. Now, the standards of proof required for use variance. The burden of proof lies with the applicant. The bench mark case setting the standards of proof required for area variances is the Court of Appeals decision in the matter of Otto vs Steinhilber. Coincidentally, this case involved property located on Long Island. This decision has stood the test of time, actually since 1939, and the standards set have proved to be so logical and defensible that they have been adopted in many other states. The Court held: before the Board may exercise its discretion and a variance upon the ground of unnecessary hardship, and grant, excuse me, a variance upon the ground of unnecessary hardship, the record must show (1) the land in question cannot yield a reasonable return if used only for the purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances and not to general conditions in the neighborhood, which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character of the locality." Based on Otto and other decisions, and this is most important, all of these elements must be found conjunctively. A failure to establish any is fatal. You cannot pick and choose any one of these criteria, they must all be met. 2) Hardship is financial hardship and must be supported by dollars and cents proof for each of the uses permitted by the ordinance. 3) Hardship is the sine qua non in submission of the required proof. If I may be permitted to say so, the phrasing "a reasonable return" is somewhat imprecise. Return is usually construed as the income earned based on the rate earned by income properties. Such a return is not typically sought for residential properties. The return to the owners of such properties is generally measured based on the utility of the property and the amenities it affords. These factors are reflected in a property's market value. An indication of the Court's thinking MR. FLYNN (eon't):may be found in Otto where was held: "In the case at bar, the applicant has failed to introduce any evidence whatsoever to show that the portion of his land which is located in the residential zone, may not be reasonably employed in conformity with the zoning regulations governing, in that case, Class "A" distriets." Precise definitions of reasonable return are difficult to find. Ballentine's Law Dictionary equates reasonable return with fair return and provides the following definition. Fair return--the term has a double aspect, one legislative and the other judicial. In the Page 31 - LaColla Public Hearing Southold ZBA 6/30/92 judicial aspect, it is the equivalent of nonconfiscatory. Judicially a rate is unreasonable oniy when it yields a return less than the minimum which the capital invested may demand. It appears that decisions as to the reasonable return are evolving to a return which is nonconfiscatory, i.e., a return which does not destroy the property's economic value and which reflects more than a bare residue of its value. If a property, as has been attested to by the applicant, has substantial market value, zoning cannot be considered confiscatory as claimed by applicant. In Rathkopf's "The Law of Zoning and Planning", it is stated that to grant a variance, "Courts have held that operation of a restriction must amount to virtual confiscation." In Spears vs Berie, the Court of Appeals held: "Nevertheless, there has evolved from our decisions a standard which, while retaining an element of flexibility, is capable of practical application, under this test, a land regulation--be it universally applicable local zoning ordinance or a more circumscribed measure governing only certain designated properties is deemed too onerous when it renders the property unsuitable for any reasonable income, productive, or other private use for which it is adapted and thus destroys its economic value, or ali but a bare residue of its value. A, this is quoting further, a petitioner who chailenges a land use regulation must sustain a heavy burden of proof, demonstrating that under no permissible use would the parcel as a whole be capable of producing a reasonable return or be adaptable to other suitable private use. And continuing, only when the evidence shows that the economic value, or all but a bare residue of the value of the parcel has been destroyed, has a taking been established." From the above citations, it can be concluded that, if a property has even nominal value, the regulation is not confiscatory and hardship has not been proved. Now, the final section I have here is - Analysis of the applicant's investment in property. Entire property, consisting of Lots 19, 20.1, 20.2, 21, 22, 23, 24, and Right Title and Interested if any in Paine Island, was published in t946 by Joseph A. LaColla for fifty-five hundred dollars ($§,500.00). The area has been variously estimated to be from some thirty-three (33) acres to some forty (40) acres. Over a period of time, he apportioned four (4)parcels with highway frontage among his progeny and provided for two residential parcels to the rear. Two of these parcels, the present sites of Hollister's Restaurant and the Greenport Pottery have since been resold. In addition there is a vacant parcel of highway frontage in M-II zoning which has an area of approximately twenty thousand five hundred (20,500) square feet and a most reasonable estimated market value of say, twenty thousand dollars ($20,000.00). By any reasonable standard, the investment in the property has long since been recouped. At best, MR. FLYNN (con't.):any remaining investment would be nominal. An attempt has been made to influence the Board by reciting an unsubstantiated, or at least at that time unsubstantiated, estimate of real estate taxes paid. One does not capitalize real estate taxes. They don't add to the value of the property and proof of this will be ascertained quickly from the IRS ff an attempt were made to deduct these taxes paid from a capital gain. Valuation of highway frontage on a front foot basis is common methodology. This is somewhat involved Page 32 - LaColia Public Hearing Southold ZBA 6/30/92 and I request that I be paid somewhat close attention to these short figures here, that they be studied when I submit this. The property's total Route 25 frontage was two thousand seven hundred fifty six, plus or minus (2,756 +-) linear feat. The purchase price, overall, was two dollars ($2.00) a linear foot. Even if all the property's utility is conceded to lie in that portion west of the pond, the usable frontage is eleven hundred and thirty-six plus or minus (1,136 +-) linear feet. Ascribing the entire purchase price to this portion of the frontage, provides an adjusted purchase price of three dollars and thirty-six cents ($3.36) per front foot. Now, seven hundred sixty-one (761) linear feet of the total usable frontage of eleven hundred thirty-six (1,136) Hnear feet is used for business purposes, currently. This use constitutes sixty-seven percent (67%) of this westerly frontage. Thus, at best, only thirty-three percent (33%) of the investment or eighteen hundred and fifteen dollars ($1,815.00) is imputable to the vacant land. Included in the vacant land, is an M-II zoned parcel, approximately one hundred feet by two hundred and seven feet (100' by 207'). The value of this parcel, alone far exceeds the remR~n~,~g investment in the property. It is estimated that this parcel, by itself, has a value approximately ten times the remaining investment. Even without consideration of this business zoned parcel, the market value of sixty thousand dollars ($60,000.00) ascribed to the residential portion alone, by the applicant's appraiser, is thirty-three (33) times the remaining investment. The residential portion alone, yields a thirty thousand two hundred percent (30,200%) return on investment. By any standards, this certainly constitutes a reasonable return on investment, far exceeding both the rate of inflation and other indices over the period. Even casting aside ali considerations of public health, safety, and welfare, and the impact on both the character of the neighborhood and its property values,_ the logical conclusion, is that the applicant cannot prove financial hardship and as a result, there is no basis for the Board to grant this requested variance. Now, I have a couple of notes, some testimony that was introduced here, if I could read them. CHAIRMAN GOEHRINGER: Why don't you let Mr., the attorney... I was just thinking, why don't you let him and then you can compose your thought and then you can come back. That would be the best thing. Not that I didn't remember your name Mr. Cuddy, I was only trying to verbalize what I was trying to say to Mr. Flynn. Mr. Cuddy, is there something you would like to say? First of all, this is a very lengthy presentation okay, there is no question about it. You may want to sit down with this and critic it and come back with some rebuttal, I assume you probably do, don't you? Or maybe you don't want to rebut it at all? MR. CUDDY: I am not sure I understand you. But I would like to try. I have a lot of thoughts about it. I would like to Mr. Flynn just one question. The answer which is indicated, it would probably take me a while to look at it, because I am not sure I understood the lower kids math. And I still doubt the veracity of it, but, I could only do that after looking at it. Because I wasn't able to write fast Page 33 - LaColia Public Hearing Southold ZBA 6/30/92 enough. Mr. Flynn portrays to live someplace close to the site. I am wondering how far away you do live Mr. Flynn, and .... MR. FLYNN: Eight hundred and thirty-five (835) feet. MR. CUDDY: Excuse me, how far is that. MR. FLYNN: Approximately eight hundred and thirty-five (835) feet at the southerly end of the property. MR. CUDDY: Okay, and can you see this site from your house? MR. FLYNN: Only on the occasion that I leave Tarpon Drive and have to make turns, either to the left or right in the face of heavy traffic. I cannot see it directly from my house, except from the upper floors. MRS. FLYNN: Yea, from the end of the driveway we can. MR. CUDDY: I would rather respond to his earlier remarks, at different times, and again at the meeting. CHAIRMAN GOEHRINGER: Well, he can afford us with a copy, I assume. You have it already, okay, great. Yes ma'am. Did you speak at the last meeting. RANDI WADE: No, I did not. CHAIRMAN GOEHRINGER: Raise your right hand again. Do you solemnly swear that the information you are about to give us is the truth to the best of your ability. Yes, it is. CHAIRMAN GOEHRINGER: Would you state your name. MS. RANDI WADE: Randi Wade. I have been a real estate broker for five (5) years and I am eight-five percent (85%) towards a master's degree in planning, for whatever that is worth. And last semester I took a lot of land use classes. I can't imagine why anybody would think that there is any legal basis for doing this. And I am sure you will reject it, but, mainly, I hope you will do it, clearly enough to make a statement to people, especially the lawyers, so that elderly people, in the future, won't lay out their savings to pursue something, you know, spot zoning in their own interest for a higher profit. This is, you know, against everything that is in the air right now there is, MS. WADE (con't.): we would call a master plan to have urban sprawl and to have continuous commercial between the hamlets. Also, as far as the people not building on the Main Road, I think we have all seen houses occasionally that are built on "25" and the North Road. You know, we are just individual again witnessed to that. Also to say that, one should be paid back for the property taxes, one has paid over Page 34 - LaColla Public Hearing Southold ZBA 6/30/92 the years, because one has allowed one's own property to lay fallow and allow raccoons to live in their property, you know, I don't think that there is any.. I mean, it isn't really an issue anyway, it is just amusing that one would think that that would enter into it. And then, in a down market, propose something out of thin air like this. I am hoping actually that this is just a way to leverage the Town into purchasing it for open space because it has been targeted, it Wbuld be a perfect place purchase. And, it should be on the top priority. You know, I hope you don't do anything, and I am sure you won't, that would increase the value and make it even more expensive, for the Town to purchase it. I also hope that your Board or another Board, would consider, reconsider the M-II zoning. And that is all I have to say, thank you. CHAIRMAN GOEHRINGER: Thank you. BOARD SECRETARY: May I have the spelling of her. name and where she lives. CHAIRMAN GOEHRINGER: Can I just her one question Charlie? It is Randi Wade, W-A-D-E. And where do you live near? MS. WADE: On 6th Street in Greenport. CHAIRMAN GOEHRINGER: Okay, thank you. Go ahead Charlie. MS. WADE: And I can see the property from my house. MR. CUDDY: I am just, I am responding in part to her remarks and maybe to one or two that Mr. Flynn made. First of all, it is my understanding that the young lady that was just here, is currently a broker, and I guess works in the same office as Mrs. Flynn. If I am wrong, I will take it back, is that true.? MRS. FLYNN: That is true. MR. CUDDY: Okay, and secondly, I would like to point out that there is some misconception about the question of taxes. Mr. Flynn indicated to you, that the taxes shouldn't be considered in this because, it is not included in the IRS analysis. That is not the point. The point is, that the case law of the State of New York says that one of the criteria, and I said this right in the beginning, that you look at, is the taxes paid. That is why we put them the taxes paid. That is why we put them in evidence. The case law says that you do it and we have done it. So, it has nothing to do with the IRS. This happens to be MR. CUDDY (con't.): the law of the State of New York. I don't know what her education is or how she got all the buzz words, but, I am very concerned that people keep talking about this as some sort of change of zone, as urban sprawl, this is an application. And this is Page 35 - LaColla Public Hearing Southold ZBA 6/30/92 not foreign to this Board. Use variances are something that are applied for quite regularly. They don't often get granted, I am aware of that, but they are applied for, they are part of the law, and I am tired of hearing people talk about them as if they were something that we invented just for these people and just to hurt them. The people that are being hurt by this, are the LaCollas. The LaCollas have kept their property for thirty (30) years. Everybody forgets that. It is very convenient to. But other people have moved in during the time as Mr. LaColla indicated, that he has kept his property in fairly pristine condition. He is not asking for a change of zone, he is asking for a use variance for five (§) acres of land. He says, he is going to keep all the rest of it with a scenic easement. He has also answered the question about traffic, going to give the ten (10) foot strip to the Town or to the State. He is the one that is victim{zed by this, not the people that are imposing it. Zoning isn't to condemn property, effectively, what has happened here, it that he has kept his property and he is being penalized. And to hear otherwise is just nonsense, I am done. CHAIRMAN GOEHRINGER: Can I just ask you a question Charlie before you sit down? We have discussed this before. You went before the Open Space Committee and you spoke to Art Ross and you didn't get anywhere. MR. CUDDY: Yes, right. CHAIRMAN GOEHRINGER: We discussed this the last time', Peconie Land Trust, you didn't make an application. MR. CUDDY: No, I am trying to get in touch with Peconie Land Trust, only because I understand just as of two (2) weeks ago, that they were in the process of purchasing land which is to the north on the other side of the railroad track. CHAIRMAN GOEHRINGER: Okay. What about Nature Conservancy? MR. CUDDY: No, I haven't had personally good dealings with Nature Conservancy, doing this sort of thing. One of the things that Nature Conservancy does, quite regularly, is that they buy parcels and then they sell them off. People know of the Marshamomaque on Shelter Island, which is a big, big nature conservancy parcel, but generally smaller parcels, they only keep for a period and then sell them. The intent for most of this, was to try and keep the good part of it open space. I thought if anybody would do that, initially, I thought the Town would do it. The Town didn't seem to interested, as I indicated to you. I thought that maybe the Peconic Land Trust people would do that, and I am trying to talk with them, because they are buying the pieces a little bit to the north. CHAIRMAN GOEHRINGER: Before I loose touch here and 1) if we choose to close this or if you choose to make, you know, some sort of rebuttal in reference to Mr. Flynn's statements, which I don't have any particular problem with. I just don't want to leave here forgetting to Page 36 - LaColla Public Hearing Southold ZBA 6/30/92 tell you, that I would dearly like to have your two (2) appraisers, and it does not have to be any more than just a letterhead, give us a fair market value for the piece that is the most westerly piece, that hundred by two hundred (100 x 200) foot parcel, which is M-I. I know, I realize that it has a big cavern out of the center of it, but I would like a value on that in the next two (2) weeks, if they could just give it to us. Again, it doesn't have to be a formal appraisal, just a short little thing on the letterhead would be greatly appreciated. MR. CUDDY: Fl,~e. APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTT L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 TO: FROM: DATE: SUBJECT: Mr. Bennett Orlowski, Jr., Chairman Southold Town Planning Board Office of the Board of Appeal~ July 16, 1992 1000-56-4-24 Pending Appeal for Variance - LaColla Pursuant to your office's request of today, we have printed the draft Transcript of the June 30, 1992 hearing statements for your convenience. (Since this copy is in draft form, it may need some minor corrections - expected next week when Lorraine returns.) Also attached is a map showing generally the reduced upland areas (60,000+- sq. ft.) under consideration. The areas to remain open would contain approximately 26 acres (as a minimum). l./ao T'o ¥6 APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOW L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 July 1, 1992 Charles R. Cuddy, Esq. 180 Old Country Road (Peconic Plaza) Post Office Box 1570 Riverhead, NY 11901-1570 Re: Use Variance - Estate of Joseph A. LaColla Dear Mr. Cuddy: Attached please find a copy of the Board's June 30, 1992 Negative SEQRA Declaration with specific notations and a provision for a possible supplemental SEQRA review by a different agency (when and if this project develops to a county health or planning stage). The attached declaration refers to specific limitations as to certain upland areas and specifies mitigation measures offered by the applicant. Very truly yours, GOEHRINGER GERARD P. CHAIRMAN Enclosure TOWN OF SOUTHOLD ZONING BOARD OF APPEALS COUNTY OF SUFFOLK In the Matter of of EUGENE M. the Application LA COLLA for a Use Variance. AFFIDAVIT STATE OF NEW YORK ) ) ss.: COUNTY OF SUFFOLK ) EUGENE M. LA COLLA, being duly sworn, deposes and says that: (1) I am one of the owners of the twenty-eight-acre parcel located on the north side of the Main Road at Arshamomaque in the Town of Southold, having succeeded to my father's interest in the premises with my six (6) brothers and sisters at the time of my father's death. (2) In connection with the application made before the Zoning Board of Appeals, I represent that my brothers, sisters and myself have submitted the entire parcel to many brokers throughout the Town of Southold over a period of twenty years and have never once received an offer to purchase the parcel at any price. (3) I verily believe and submit that the part of the parcel as zoned R-80 cannot be utilized for any of the purposes set forth in the R-80 District and have therefore requested a use variance to permit commercial uses over the upland portion of the property which is presently designated R-80. (4) I request that the Board note that since my father's death in 1960 my brothers, sisters and I have expended more than $40,000 in real property taxes. The present yearly tax is $~ · While the value of the real property in 1960 was $1,600 per acre or $45,000 for 28 acres, the total value of the usable portion of the parcel today is $60,000. Assuming a modest value for the wetland acreage, we have held this property for thirty years without any increase in value. In effect there is no reasonable return for this parcel which has been held in my family and retained in pristine condition for more than thirty years. (5) At one time the parcel had summer cottages used by members of my family. They had limited use, were abandoned years ago, and now are inhabited by racoons. The locale is not residential in character, and not only have we not been able to sell the entire parcel for residential purposes, but the cottages could not be rented and there has not been any income from the premises. (6) In connection with this application, I again offer to maintain the substantial wetland area of this parcel in its natural condition and, if appropriate, to place a scenic easement over the wetland and unused upland portions of the parcel. (7) In addition, I offer on behalf of myself and my brothers and sisters to dedicate a ten-foot strip to the Town or State, as the case may be, which strip of land runs parellel to Route 25. (8) My family has retained this parcel in essentially its existing condition for more than thirty years. We have gotten little or no use from the land, and with its present zoning have no · expectation of real eng any use or income frol parcel; there- fore, I respectfully request that the use variance be granted permitting us business use of the few upland acres adjoining Route 25. Sworn to before me this '~ day of June 1992. Notary Public ~ EUGENE/M. LA COLLA CHARLES R, CUODY I~ Public, State of New York No. 6872225 Qualified in Suffolk County Cmztml~n Expire~ De~:ember 31,1992 · ~%{N OF SOUTHOLD ZONING BOARD OF APPEALS coUNTY OF SUFFOLK In the Matter of the Application of : EUGENE M. LA COLLA : AFFIDAVIT for a Use Variance. : STATE OF NEW YORK) ) COUNTY OF SUFFOLK) TIMOTHY A. RUMPH, being duly sworn, deposes and says: I am an environmental and planning consultant and make this affidavit in support of the application of Eugene M. LaColla for a use variance for part of the parcel located on the north side of the Main Road (N.Y.S. Route 25) at Arshamomaque near Greenport. I am a graduate of Rutgers University with a Bachelor of Science Degree in Landscape Architecture, and have a Masters. Degree in Social Ecology. Following graduation I was employed by the Planning Department of Southampton Town to review site plans and subdivision applications. Subsequently I acted as a planning consultant to a number of Towns and Villages on Long Island, including Southold, and presently serve on the Architectural.. Review Board of the Town of Riverhead. , I am familiar with Board that the planning sense, the LaColla site and state to this adjoining MII Zone and R-80 Zone do not make since a heavy commercial zone abuts a low density residential zone. As a minimum there should be a transitional zone between the two, preferably permitting general business use in harmony with existing business uses. In this instance an R-80 Zone located between the main commercial artery (Route 25) and the Long Island Railroad tracks, not only is inappropriate, but virtually condemns the parcel. In my experience, a low density residential district bordering existing commercial uses and located on a relatively heavily traveled thoroughfare is not a location for a two (2) acre residential district. The uses the applicant wishes to make of the four (4) ~- acre parcel along Route 25 including wholesale businesses, warehouses, contractors' businesses, office buildings, repair shops and retail sales, are compatible with the adjoining existing use pattern. Conversely the adjoining commercial uses render the LaColla parcel unsuitable for residential uses. I respectfuly request that to mitigate the harshness of the existing zoning this Board grant a use variance to the applicant. To this end my firm has designed a site lay out and I have offered it for the Board's consideration. i~imothy ~. PJu~ph { Sworn to before me this day of June, 1992 Nolety Public, State of Hew Yod~ .N~ Fa872225 Quel~ad fl~ Suffolk County O~mmlssion F. xptre~ December 31, 1992 TOWN OF SOUTHOLD ZONING BOARD OF APPEALS cOUNTY OF SUFFOLK In the Matter Of th~l~plicaZion of : EUGENE M. LA COLLA for a Use Variance. : STATE OF NEW YORK) COUNTY OF SUFFOLK) AFFIDAVIT ss.: ANDREW D. STYPE, being duly sworn, deposes and says: I am a licensed real estate broker and an appraiser, having lived in the Town of Southold all of my life. I regularly complete real estate appraisals for banks and lending institutions, as well as for private individuals and government agencies and am fully familiar with the La Colla parcel located Arshamomaque near Greenport. A substantial part of on the north side of Route 25 at the La Colla parcel is in the R-80 zoning use district. In my opinion, placing the parcel in that use district effectively destroys its economic value. Without a use variance the five (5) acres of upland now zoned R-80 are worth $60,000.00, i.e., $30,000.00 for each two acre parcel, which zoned for business use the value would increase to $280,000.00. The purchase price or acquisition value by the La Colla Estate of the subject acre parcel was approximately $45,000.00. The La Colla family has paid over $40,000.00 in taxes and receives no income from the property. Based upon property taxes, overall parcel application. the acquisition value and the expenses for real there is no gain or increase attributed to the or to the smaller parcel which is the subject of this I have reviewed the Town Code for the permitted use and special exception use allowed in the R-80 use district. None of these uses are viable for this parcel, and in my opinion, the parcel could not be sold for any such permitted use or special exception use for a price which would be anything close to paying a reasonable return to the La Collas for more than they have expended. Using this parcel for the purposes permitted in the Zoning Code effectively ~r-m{-t-s the parcel from yielding a reasonable return for this land, particularly along the Mai~Q~d, whic~i~ not / , adaptable for residential use. Sworn to before me this ~(~ day of June, 1992. Notary Public ~ Quellfled In Suffolk County Commission Expires December 31,1992 To: 'h~ar,l of ~ .- Town of $outhold ~' '~ Fly F ro,,~: ..... nn Re: Objection to Appeal No. 4091 Eugene P~. Date: June 30, 1992 Application and RupportinG Testimony Applicant states that a use variance is soushton the upland portion of the subject property for the reason that "the property cannot be used as zoned." The business zoned portion has utility as zoned~ witness other parcels contiguous thereto. Any elai~ed hardship nould be self-created. As for the residentially zoned portion~ it is, and has~ been used, in part, for this purpose. To understand the concept of use, or utility, the Bases for value nust be understood. The components of value ar~: u.'{lity, is uti!itl', if ~ 5roperty/o'.~j..ct has utility, it ~as ~,.!'~. Conversely~ if value is escrib'!d to a propertl~ !t ::~ust hay ~ utility. The applicant's appraiser has ascribed a ~narket value of some $60~000- to the residentially zoned portion of the oroeart~ for which a variance is sought. In addition, the area of'th%F~'''' requested variance includes a vacant parcel of some 20,500sq. ft. -- in ~!I! zoning, a parcel which has obvious value. For the subject property to have the value ascribed~ or more, it must have utility as zoned. ~ased on the tegtimony introduced by the applicant's appraiser, the claim that the property has no use aa zoned is nezated. Under reasons for appeal, Hardship is claimed, ostensibly because the parcel cannot be sol~ for residential use as zoned, and will not provide a reasonable yield if use is restricted to those pernitted by the zoning. All of the property for which a variance is requested is not zoned for residential use. Further~ the applicant's appraiser has provided an estinate of narket value. Yarket value is the price a property ~il! brinI ~f 2x?oaed to the ~arket, i.e. sales price. Applicant has ~!xitte! property can be sold for' residential use. IIardship is stated to be Unique because of the property's configuation, location and beck. use of the claimed inability to use the property for per~itted uses effectively confiscates the property. L'%J es ,are uniaue to some de~r~e. II~lv~} ~ subd,~e~'~ ~ is' . ':~iqu-~ by reason of confisuration an~ location, these t ~r: r~isted at the tine of purchase and should have ben n''~r.t to the informed purchaser upon whom market value ~ ?~J!cated. Undoubtedly these factors were reflected in ~' ~ 3roperty's purchase price. The claim of inability to ,r~ the property for permitted purposes is contradicted by t ~; uarket value ascribed. ?here is an established principle in zonin~ law that hardship cannot be reco~nize~ if created by the owner or his ~redecessors in title. Should such a hardship exist it existed at'the time of purchase and was reflected in the price paid. Before the Board of APPeals we are constantly exposed to the sorry spectacle o~'owners who have willingly and willfully purcased marsinal propoerties with inherent hardships at a nominal price who then attempt to obtain an unconscionable profit by means of a variance. So;nei~ow these applicants remind me of the youth who murdered his parents and then sought pardon because he was an orphan. The claim is advanced that the inability to use the property for permitted uses effectively confiscates the property. C-~S~Scation, if it exists must be proven by dollar and cents analysis of each permitted use. The fact that the property is, and has been, used for permitted uses, and market value escribed, refutes the claim of confiscation. Confiscation as defined by the courts, states that the econo,mic value, or all but a bare residue of the value of the ~arce! h~ destroyed and only then is a takin~ established. ! ~ ~¢ In effect, if value remains there is no confiscation. In many venues confiscation must be proved as the basis for o ~a~n~ng a variance. ~ The claim is advanced that the variance, if cranted, t![ould !Tot Change the Character of the District" because business uses presently exist at the site and at nearby parcels. If business uses already exist on the site, the claim that orooertv cannot be used as zoned is negated for those ~ ~-' .~ of the property. The present business uses antedate zoning, necause business use ~xists here and at nearby properties cannot be used a.s the pretext for the endless proliferation of business use. Such use must terminate somewhere. It has been held that the mere fact that the pre~.ises for which a v~rianca is sought is conti%uous to a district where such use is per~issable is not srounds for authorizin~i such use. Business uses cannot be_Permitted to~-~ ~. -ai~ ~n~less] ~ ' - -y like a cancer because other business,a.~.~, ~ ' no ~atter how 'oad!y olanned, ~xist in the - nel, nborhood. :~nould set % DPecedent fop ' OUolness use opposlt! on [~:l~ southerly (2) The To~n Board has exnressed its intentions to confine business uses l~r~Eelv to hamlet[s, and to eliminate strip zoning T~s~ ~ were amon~ the recommendations of the US/UE Task Force whicA are now considered in the proposed revision of the ?.aster Plan. Granting this variance uould certainly conflict with these recommendations. In an obvious attempt to confuse the issue, and to make the owner's plight to seem desperate~ applicant has introduced testimony as to the value of the property were the variance granted and property to be valued at its highest and best use level. The courts have long held that an applicant is to a variance based upon the maximum potential property should the variance be granted. not entitled value of the Further, in an obvious attempt to zain the sympathy of tho Board, testimony ~as introduced as to the aTes and financial status of the owners. The ~rant of a variance runs with the land and is not a personal license given to the landowner. Accordingly, any unnecessary hardship which would suffice to justify the grantin~ of a variance must relate to the land, not to the owners themselves.Here personal hardshia does not constitute sufficient grounds for the ~ranting of a variance. General Considerations In the ~ranting of a variance, the public's health, afety and welfare and other general influences and conditions in the neighborhood must be civen careful consideration. In the case of Hational ~erritt~ Inc. v. Robert ~'o ,.~t~t~ etal~ The Court of Appeals held: "However, if there is a legitamate purpose for the orinance and it is necessarily related to the public~ health, safety and welfare of the community, financial lossis insufficient to compel the granting of the ~ variance." ~ ~ no such proof has been advanced bv~ the aDelicant,., the decision ~-lpha..~i~eo the ov.~rmdmn~ consideration given to ' ~ .~l~ar ~ tn~ Public health, safety and -e ~ ,~. The hi'~huav safety hazards relating to the subject property are ,,.±~eady a .nat,.er of public record ~ ~' ~- -' ~ Lots 19 rn~d 24, in their entireties, contain large areas of ~etlands. Ui~i!e the ar~.as for which a variance is soucht comprises only ,sart of the total srea, it is in close pro:~'inity to the ~,-etlands and critical environaetal areas, and any iuprovement would probably have serious detri:nental effects thereon. (3) 19 appears to be !arzely wetlands. The easterly portion of the area for which a variance is souTt is zoned for ..q-80 use ani is heavily wooded. The northerly portions of lot 24 are !ar~ely wetlands. Due to environnenta! and eco!ozical considerations, both Raymond, Parish, Pine and Ueiner, the town's consultants for the Master Plan, and the Long Island Regional Planning Board recommended that the ~ndevetope~ portions of these lots be preserved as open space. In accordance with these reconmendations~ the R - C0 use provided for in the Comprehensiwa Plan is a reasonable one. It should be noted that the ~ro~erty tothe north, in the Arshamomaque and to the south, the former oage propertyzare class~fmed as critical environmental areas. The pond on the easterlypart of Lot 24 lies between the Arshamomaque Pond and the Sage Estuary creatin~ s form og greenbelt from Long Island Sound to Peconic Bay. Under tnese~ conditions, the su~oec~': ~ ~ application should be subjected to intensive ~EQ~A review. ~,~ou_r..d ~o a Use Variance ,Standards of Proof n~ i ~ ~ r The burden of proof lies with the applicant. The bench mark case setting the standards of proof required for area variances is the Court of Appeals decision in the matter of Otto v. Steinhilber. Coincidentally, this case involved property located on Long Island. This decision has wx~notood t~,e test of time, and thc standards set have proved to be so losical and defensible tna~ they have been adopted in many other states. The Court no_o: grant owner Before the Board may exercise its discretion and a variance upon the ground of unnecessary hardship, the recordmust show (1) the land in question cannot yield a reasonable return if used only for the purponc allowed in that zone; (2) that the piizht of the is due to unique circumstances and not to the 5cneral conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by yhe variance will not alter the essential character of the locality." oa;=ed on Otto and other deel:31o'.ls: 1) All of these e!eilents i~ust be found conju~ctiv'~!y. ~ A failure to establish ~u~y is fatal. 2) l%rds, hip is financial Narc!ship and Nust be supportel by ,~y dolt!Ps ~ne c~nt,~ proof for ~-tca oF ~ ~ ...... by the ordinance. { 4) 3) Hardship is the sine qua non in snbmission of the required proof. If I nay be permitted to say so, the phrasins "a reasonable return" is oomewnat imprecise. Return is usually construed as the income earned based on the rate earned by income properties. Such a return is not typically sought for residential propeertie to the owners of such ~?roperties is ~enerally measured based on the utility of the property and the amenities it affords. These factors are reflected in a property's ~arket value. An indication of the Court's thinking may be found in Otto where it was held: "In the case at bar the applicant has failed to introduce any evidence whatsoever to show that the portion of his land which is located in the residential zone may not be reasonably employed in conformity with the zoning regulattions governing Class "A" districts." Precise definitions of Reasonable Return are difficult to find. Ballentine's Law Dictionary equates Reasonable Return with Fair eturn and provides the foltowin~ definition: Fair Return - "The term has a double aspect, one lesislative and the ether judicial." "In the judicial aspect it is the equivalent of nonconfiscatory. Judicially a rate is unreasonable only when it yields a return less than the minf~um uhich the capital invested may de~and." (Ballentine's Law Dictionary 3 ed. The Lawyer's Co-operative Publishing Company) It appears that decisions as to a reasonable return are evolvinz to a return which is nonconfiscatory, i.e. a return which does no destroy a property's economic value and which reflects more than a bare residue of its value. If a ,vro~erty~ as has been attested to by the appl~cant,.s ostantial :~arket value, zoning cannot be considered confiscatory as e!~ined by applicant. In natnkopf that ope,.rs v. 3er!e~ the Court o~- : "Nevertheless, there has evolved from our decisions a standard which,while retaining an element of flexibility, is capable of practical application: under this test? a land use regulation be it a universeally applicable local zoning ordinance or a more circumscribed measure governinD only certain designated properties- is deemed too onerous when it renders the property unsuitable for any reasonable income {~ productive or other private use for which it is adapted and thus destroys its econmic value, or all but a bare residue of its value" (emphasis supplied) "A petitioner who challenges a land use regulation must sustain a heavy burden of proof~ demonstrating that under no permissable use would the parcel as a whole be capable of producing a reasoable return or~' be adaptable to other suitable private use -" "Only when the evidence shows that the economic value, or all but a bare residue of the valueof the parcel has been destroyed~ has a 'taking' been established." From the above citations it can be concluded that, if a property has even nominal value, the ro%ulation is not confiscatory and hardship has not been proved. Analysis of Applicant's Investment in Property Entire property, consistinz of Lots 19, 20.1, 20.2, 21, 22, 23, 24 and RTI in Paine Island, was purchased in 1946 by Joseph A. La Colla for $5,500--. Area has teen variously estimated to be from some 33 acres to some 40 acres. Over a period of time~ he apportioned four parcels with highway frontaze amon~ his progeny and provided for two residential parcel~ to the rear. Two of these parcels, the present sites of Ho!lister's Restaurant and the Greenport Pottery have since been resold. In addition there is a vacant parcel of highway frontage in MII zoning which hss an area of approximately 20,500 sq.ft. and an esti~ated market value of about $20,000-. By any reasonable standard? the investnent has lon£ si~ce been recouped. .it best, any would be no~!inal. in the property r e?.ainin ~] invest,~ent quickly fro: the ![~~. if an Rtt.~:?t were ~mde to deduct t%xes paid frora Valuation o? hi']hway frontage on a front foot basis is co?~non methodo!ozy. ~..~ 2roperty's ~otal ~.te. 25 ~ on,~e ~a~ 275~ +/_ LF Thepurchsse price, overall, was .~2.00 per LF. Even if all the property's utility is conceded to lie in that portion west oS the pond, the usable frontage is 1136 +/- LF. Ascribin~ the entire purchase price to this portion of the frontage provides an adjusted purchase price of 33.36 per front foot. 761LF of the total usable frontage of 1136 LF is used for business purposes. This usc constitutes 67% of this westerly frontage. Thus, at best, only 33~ of the investment, or $1815-, isimputable to the vacant land. Included in the vacant land is an ~II zoned vacant parcel approximately 100' x 207'. The value of this parcel, alone, far exceeds the remaining investment in the properrty. It is estimated that this parcel, by itself, has a value approximately ten times the remaining investment. Even without consideration of this business zoned parcel, the market value of $60,000- ascribed to the residential portion, alone, by the applicant's appraiser is 33 times the remaining investment. The residential portion, alone, a 3,200% return on investment. yields By any standard this certainly constitutes a reasonable return on investment~' far exceeding both the rate of inflation and indices over the period. Even casting aside all considerations of public health, safety and welfare, and the impact on both the character of the neishborhood and its property values, the logical conclusion is that the applicant cannot prove financial hardship and, as a result, there is no basis for the Board to grant the requested variance. (7) 78 32 NEW YORK REPORTS, 2d SERIES Points of Counsel CATHERINE 'W/LLIAMs et al., Appellants, v. Tow~ OF Respondent. Argued February 13, 1973; decided March 21, 1973. ' ' MuniciFal corporations--zoning__in action by owners of property to have Building Zone Ordinance declared unconstitutional as applied to their property, judgment properly granted in favor of defendant town--burden of proving zoning ordinance unconstitutional and confiscatory not sustained--evidence conflicting and inconclusive as to whether property would yield reasgnable return and is reasonably adapted for residential use--plaintiff made no attempt to show that sale of property for permitted uses other than for one- family dwellings would not be possible and economically practicable. In an action by owners of property in a Residence D zoning district against the town ~o have an article of it~ Building Zone Ordinance which governs Reel- dense D uses declared unconstitutional as applied to their property, judgment was properly granted in favor of tho town. Plaintiffs have not sustained their burden of proving the present zoning ordinance unconstitutional and confiscatory. The evidence is at best eonflicting and inconclusive as to whether the proper~ would yield a reasonable return and is reasonably adapted for residential use and wbether the various nonconforming uses and the traffic conditions have so ebanged tbs neighborhood that a business use for the plaintiffs' property would no~ significantly alter its character. 3~oreover, the plaintiffs have made no attempt to show that the sale of their property for one of the many permitted uses other than for one-family dwellings would not be both possible and economic. ally practicable. ~illiams v. Town of Oyster Bay, 35 3. D 2d 982, affirmed. APPEan from an order of the Appellate Division of the. Supreme Court in the Second Judicial Department. entered December 21, 1970, which (1) reversed, on tbs law and ~be facts, a judgment of the Supreme Corn-l, entered in Xassau County on a decision of tbs Court on a trial at Special Term (M.~xvrm Lm'tx~, J.), declaring the Building Zone Ordinance of the Town of Oyster Bay unconstitutional as applied to plaintiffs' prop- erty, and (2) granted judgment in favor of defendant declaring flint the ordiEanee is constitutional as applied to plaintiffs' property. Itenr?/,f. Boitel for appellants. I. ApplieatioR of the town's · zoning ordinance to the subject realty unreasonably denied plaintiff landowner the profitable and beneficial use of his land and amounted to a taking of property offensive to the Slate and Federal Conslitutim~s. (Averne Ba~j Coastr. Co. v. Thatcher, 27S N. Y. 222; People ex tel. St. Alba~'s-Sprla.qfield Corp. i9 d -'uffer (Peopl~ 7a; 3Ia John ell tlmir b' 2uildi: :,viden as apt Cit~/ o~ 300 X. Fullin9 Vii. o/ of the ~ ful as liams. Villag~ a busi: to bay The ~1 Road. Avenue[ zoned ~ ue~s ~.~ has ere~ YSTER BAY~ /3. property to have to their property, urden of l)roving rained -- evidence yield reasonable 'laintiff made no !~er than for one° cticable. ~g district against ich governs Rest- 'ty, judgment was t sustained their and confiscatory. her the property ,sldentia! use and :idltlons have so ' property would ~ have made no many permitted ,lc and economic- ision of the tent, entered md tim facts, ssau County of the Town ntiffs' prop- nt declaring o plaintiffs' f the to~vn's ably denied of his land o the State v. Thatcher, 'ld Co.rp. v. WILLIAMS v. TOWN OF OYSTER BAY [32 NY 2d 78] 79 Opinion per Chie£ Judge (~onneIl, 257 N. ¥. 73; Tarrant v. Incorporated Vil. of Roslyn, ~9 Misc 2d 238, 10 A D 2d 37, 8 N Y 2d 1129; Summer?. v. City of ~;en Cove, 17 N Y 2d 307; Rockdale Constr. Corp. v. Incorpo- :'qied Vil. of Cedarhurst, 275 App. Div. 1043, 301 N. Y. 519; -~epard v. Village of Skaneateles, 300 N. Y. 115; Matter of .'~li~g v. Palumbo, 21 N Y 2d 30.) II. Application of the wn's building zoning ordinance to the subject realty created ;:,~ unnecessary and undue hardship and caused plaintiffs to uffer severe financial loss and significant economic injury. :People ex tel. St. Albans-Springfield Corp. v. Connell, 257 N. ~. Matter of Otto v. Steinhilber, 282 N. Y. 71.) John M. Conroy, Town Attorney (Robert A. Shuster of coun- ,ei), for respondent. I. Plaintiffs-appellants have not sustained ~heir burden to overcome the presumption of validity of the ',~uilding Zone Ordinance of the Town of Oyster Bay and the ~.vidence presented was not sufficient to establish that the ordi- nance served no legitimate purpose and was unconstitutional as applied to the subject property. (Verno~ Park Realty v. City of Mount Vernon, 307 N. Y. 493; Farmers' Loan & Trust Co. v. Siefke, 144 N. Y. 354; Shepard v. Village of Skaneateles, 300 N. Y. 115; Walus v. Millington, 49 Misc 2d 104; Snyder v. Town Bd. of Town of Oyster Bay, 27 Misc 2d 645; Matter of F~dling v. Palumbo, 21 N ¥ 2d 30; Gluckman v. Incorporated Vil. of Great Neck, 28 N ¥ 2d 746.) II. The Zoning Ordinance of the To~vn of Oyster Bay is reasonable, constitutional and law- ful as it applies to the property. Chief Judge FULl). The plaintiffs, Catherine and Gene Wil- liams, own property in a Residence D zoning district in the Village of Massapequa, Town of Oyster Bay. Unable to obtain a business use variance, they brought this suit against the town to have article VI of its Building Zone Ordinance, which gov- erns Residence D uses, declared unconstitutional as applied to their property. The plaintiffs' land is located on the south side of Merrick Road, extending from Fox Boulevard on the west to Bayvlew Avenue on the east. The western half, the subject premises, is zoned (as indicated) "Residence D," the eastern half "Busi- ness F." Outside of this business area, on which Mr. Williams has erected a number of small taxpayers, all of the property 8O 32 NEW YORK REPORTS, 2,{ SERIES Opinion per Chief Judge F~rLD in the vicinity on both sides of ~{errick Road and in the neigh- boring side streets is zoned for residential use. On the north side of l~{errick Road, a number of the residences contain the o~ces of professionals--doctors, dentists and lawyers, all uses permitted in a Residence D district until 1971--and, in addi- tion, a realty off'ce and a pet clinic. Across the way on the south- west corner of :Fox Boulevard and Merrick Road is a gift shop. In addition to one-family dwellings, other authorized uses in Residence D zones include two-family dwellings, churches, parks, libraries, museums, colleges, eleemosynary institutions and rooming or boarding houses, some of these requiring approval as a special exception by the town board or the board of appeals (Town of Oyster Bay Building Zone Ordinance, § 317). On the corner of the plaintiffs' residential property here involved is a residence formerly used as a realty o~ce and now vacant. A witness testified on behalf of the defendant that Mr. Williams'had refused his offer of $36,000 or his wife's of $38,000 for it for residential use. The rest of the property between this house and the taxpayers is empty. It had formerly held a model home for the residences which Williams had built on the rest of the block south of his l~[erriek Road property. lie had moved this model house to a side street lot in order to get a better price--of $28,250 as opposed to $24,000 offered prior to its being moved. There was conflicting testimony as to whether or not the subject property could be sold for resi- dential purposes and as to whether the residential character of that part of Merrick Road had changed. The court at Special Term decided in th~ plaintiffs' favor, declaring that, "[w]hile the evidence as to the salability of the property for residential use is weak the CoUrt is of the opinion that there is a substantial economic loss due to the residential zoning of the property. Under the circumstances the premises should be zoned for business with a proviso that the building thereon be retained and used as a professional building to act as a buffer to the residential properties on Fox Boulevard and to the west on Merrick Road." However, added the court, since "[it] must function in a judicial capacity and not as a le~sla- tire body * * · [it] holds that the [ordinance challenged] is unconstitutional as applied to the plaintiffs' property." The , in the neigh- On the north ~ces contain the lawyers, all uses i--and, in addi- way on the south- ad is a gift shop. ~thorized uses in ,ehurehes, parks, institutions and luiring approval board of appeals ~, § 317). ! property here y office and now defendant that or his wife's of ,f the property It had formerly llama had built Road property. lot in order to ,~24,000 offered ; testimony as ~ sold for real- : ~tial character intiffs' favor, lability of the ~f the opinion he residential the premises the building filding to act oulevard and e court, since as a leg/sin- ' challenged ] ~erty." The WILLIAMS v. TOWN OF OYSTER BAY [32 NY 2d 78] 81 Opinion per Chief Judge FWLn .:~ppellate Division reversed the resulting judgment and declared ihe ordinance constitutional. "In our opinion," wrote that ~.ourt, "the evidence was not sufficient to establish that the ;~r linance served no legitimate purpose and was unconstitutional ~.~ applied to the subject property" (35 zk D 2d 982). _~ zoning ordinance is confiscatory and unconstitutional only ~f it prevents a plaintiff from using his property for any pur- ::ose for which it is reasonably adapted. The burden of' estab- ;[sning invalidity rests, of course, upon .the plaintiff. If the ~cgislative classification is" fairly debatable," it must be allowed :o control. (Shepard v. Village of Skaneateles, 300 N. ¥. 115, klS; see, also, De Leo v. Lecraw, 30 lq' Y 2d 824; Salamar Bldrs. Corp. v. Turtle, 29 N ¥ 2d 221, 226; Gluckman v. I,corporated 'Vil. of Great Neck, 28 N Y 2d 746; O'Kula v. Meade, 27 N Y 2d 526.) The considerations for determining the eonstitutionallty of a zoning ordinance as applied to a particular owner's prop- erty are much the same as those prescribed for the grant or denial of a variance. (See 2 Rathkopf, Law of Zoning and Plan- ning [3d ed., 1972], p. 45-14; el. Matter of Jayne Estates v. Raynor, 22 N Y 2d 417, 425.) Since these considerations aro dealt with much more fully in the variance eases, we may look to them for guidance here. The long-established rule for the grant of a use variance requires a showing that" (1) the land in question cannot yield a reasonable return it~ used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique circum- stances and not to the general conditions in the neighborhood whleh may reflect the unreasonableness of the zoning itself; and (3) that the use to be authorized by the variance will not alter the essential character of the locality." (Matter of Otto v. Steinhilber, 282 N. Y. 71, 76; see, also, Matter o[ North Shore Steak IIouse v. Thomaston, 30 N Y 2d 238, 243; Matter of Jayne Estates v. Raynor, 22 N Y 2d 417, 424, supra; Matter of Forrest v. Evershed, 7 N Y 2d 256, 261-263; Matter of Crossroads Recreation v. Broz, 4~ N Y 2d 39, 43.)~ In determining the ques- 1. We need not concern ourselves with the question o£ "unique cireumatanees" particularly where n claim of unconstitutionality ia involved. Judge observation in the Jay.e Estates ease (22 N Y 2d 417, supra), tl~ough it dealt with a question of rariance, is pertinent here: "In any ease, as a general rule, where the landowner has made the requisite showing of financial hardship and 82 32 NEW YORK REPORTS, 2(1 SERIES Opinion per Chief Judge FULD tion of a "reasonable return," it is not enough for the plaintiff to show .that "he would realize a greaier return" under a less restricted use. (Matter of Crossroads Recreation v. Broz, 4 lq' ¥ 2d 39, 46, supra; see, also, Levitt v. Incorporated Vil. of Sands Point, 6 lq ¥ 2d 269, 273.) As the court stated in the Crossroads Recreation case, the "only pertinent inquiry is whether the present allowed use is yielding a reasonable return. That it may not be the most profitable use is immaterial" (4 N' ¥ 2d, at p. 46; see, also, Matter of 113 Hillside Ave. Corp. v. Zaino, 27 N Y 2d 258, 263). The plaintiff must, in addition, establish that no reasonable return may be had from any per- mitred use. "In order to establish a lack of 'reasonable return '," the court wrot~ in Matter of Forrest v. Evershed (7 N ¥ 2d, at p. 262), "the applicant must demonstrate that the return from the property would not be reasonable for each and every permitted use under the ordinance ". The court denied the property owners' right to a variance in part because they "did not even suggest that they had explored the possibility of utilizing the property for * * * [various] permissible ' E' Residential uses under the ordinance--or establish that the alternative uses were economically impractlcable ~, (p. 262). Applying these principles to the case before us, it is mani- fest that the plaintiffs bave not sustained their burden of prov- ing the present zoning ordinance unconstitutional and confisca- tory. The evidence is at best conflicting and inconclusive as to (1) whether the property would yield a reasonable return and is reasonably adapted for resldential use and (2) whether the various nonconforming uses and the traffic conditions on ~er- rick Road have so changed the neighborhood that a business use for the plaintiffs, property, would not significantly alter its character. Mm'cover, the plaintiffs have made absolutely no attempt to show tbat the sale of their property for one of the many permitted uses other than for one-family- dwellings compatibility of his proposed use with the existing land use pattern, it would seem preferable to grant the variance. To deny the variance solely on the ground that 'unique eircumstanees~ had not been shown leaves open the prospect of a successful assault on the zoning ordinance as being con~scatory,, (p. 425). This indicates that only "financial hardsh p ,,__ i e absence o~ ~ - ~or determining eons~itutionalit- ~_wam.~ne ex. mt~.ng land pattern" are sta.dards ~ ,,~ wen as the right to a variance. 'plaintiff .tera less v. Broz, 4 ted Vil. of tted in inquiry is bio retm'n. :erlal" (4 z. Corp. v. addition, t any per- easonable ershed (7 ~ that tile each and z't denied ~use they ossihility rmissible lish that (p. 262). is mani- of prov- zonfisca- ye as to urn and her the ~n ]~[er- .USiness y alter 'olutely one of 'elllngs it would ~ ground eot of a ;). This andards WILLIAMS v. TOWN OF OYSTER BAY [32 NY 2d 78] 83 Opinion per Chief Judge ~:rould not be both possible and economically practicable.. Indeed, ~ven the justice at Special Term felt that any change of zoning ~ a business use should be accompanied, as noted above, by a ' proviso that the building [now situated on the plaintiffs' prop- ,~ ty] be retained and used as a professional building to act ~s a buffer to the residential properties on Fox Boulevard and !v the west on Merrick road." This leads not, as the court found, ~,~, the conclusion that the ordinance is unconstitutional but that :he plaintiffs' proper avenue of relief would be an application iora special exception from the town board or the board of ?.ppeals. Far different from the present case are those described in 2ayne Estates (22 N 'Y 2d 417, 425, n., supra), where the subject property was "in the middle of an area being used for commer- cial purposes, and there [was] almost no probability that these nonconforming uses will soon disappear. (Udell v. Haas, 21 N ¥ 2d 463; Stevens v. Town of Huntington,, 20 N Y 2d 352; Mary Chess, Inc. v. City of Glen Cove, 18 N Y 2d 205.)" Yfere, the plaintiffs are almost entirely surrounded by residential property in which, unlike Jayne Estates, there is real "danger of piece- meal destruction of the existing zoning scheme" (22 N ¥ 2d, at p. 425). It may be that the traffic on Merrick Road, combined with the presence of the taxpayers and the nonconforming uses on the north side, will ultimately alter the character of the neighbor- ' hood sufficien'tly to entitle the plaintiffs to greater relief than the suggested special exception or variance. As it is, the plaintiffs have far from exhausted tile possibilities of a profitable use for their property which would not contribute to the inroads made by the taxpayers upon the essentially residential character of the surrounding community. In sum, fl%ere is no basis, on the record before us, for holding the zoning Ordinance, as applied to the plaintiffs' property, confiscatory and unconstitutional. The order appealed from should be affirmed, with costs. Judges Bunar, BnEITEL, JxSI'~N, OXBnlELLI, JONES and '~/'ACtI ~LER concur. Order affirmed. ' ..,~; OF SOUTHOLD ZONING CDUNT¥ OF SUFFOLK BOARD OF APPEALS In the Matter of the Application of EUGENE M. LA COLLA for a Use Variance. AFFIDAVIT STATE OF NEW YORK ) ) ss.: COUNTY OF SUFFOLK ) MARY ANN FEAVEL, being duly sworn, deposes and says that: (1) I am a licensed real estate broker and have acted as an agent for parties selling real estate throughout the Town of Southold in hundreds of sales and also have bought and sold real estate in the Town of Southold for more than fifteen years. (2) During that time, I have become familiar with the LaColla parcel that is the subject of the use variance application before the Zoning Board of Appeals. (3) I am familiar with the zoning of the subject parcel and the provisions of the Town Code affecting the parcel. (4) This twenty-eight-acre parcel located at Arshamomaque and identified by tax map ~1000-56-04-19 and 28/cannot be sold for R-80 purposes and cannot be used for any of the permitted uses set forth in the R-80 section of the Town Code substantially covered with wetlands, and is located between the Main Road the south and the Long (Article III). The parcel is is adjacent to commercial uses (New York State Route 25) on Island Rail Road on the north. (5) Based on its location on the Main Road (NYS Route 25) between Greenport and Southold, in my opinion the only viable use for this parcel is to make use of the upland area on a commercial basis; otherwise, the property will not return any reasonable yield to its owner(s). parcel cannot be family detached dwellings, uses permitted by special In this connection, I reinterate that the LaColla sold for R-80 uses (Section 100-31), i.e., one- agricultural operations as well as those exception (a copy of which is annexed hereto). (6) experience as a broker, but locale in which the property is located, noting that to the southwest of this parcel and to the west of this parcel there are marina use districts and that the land immediately contiguous to the applicants' land contains business uses. (7) It is my opinion that without the relief requested, the I make this Affidvit not only based upon my years of also based upon my familiarity with the parcel cannot be sold and cannot be ~A~N FEAVEL -~ Sworn to before me this '~Q day of June, 1992. Notary '~ 14,12-7 (2J87)--gc 617.21 State Environmental Quality Review NEGATIVE DECLARATION Notice of Determination of Non-Significance SEQR Project Number z~09! Date June 30 ,, 1992 This notice is issued pursuant to Part 617 of the implementing regulations pertaining to Article 8 (State Environmental Quality Review Act) of the Environmental Conservation Law, The ~m~hnl~ ~wn R~ard of ApPeals , as lead agency, has determined that the proposed action described below will not have a significant effect on the environment and a Draft Environmental Impact Statement will not be prepared. Name of Action: Eugene M. LaColla Appl. No. 4091 SEQR Status: Type Unlisted Conditioned Negative Declaration: ~--]Yes ~No Descr!ption of Acti.om Recjuest for a "change of use" frc~ residential to non-residentia; use, t~t area designated orthe sketch map, a portion of which is zoned M-II and the' remaining acreage R-80 Residential. No construction is proposed at this time. Future activities will be only as permitted after review and issuance of approvals as de~med necessary at t_hat time by the permit agencies (of the Town, State and County), and as further noted herein. Subject' 28+- acre parcel adjoins the following lends: (a) Hollister's Restaurant (b) Richards marine contracting & storage business (c) Mill Creek Liquors, Inc. (d) The Pottery Place, (e) the Long Island Railroad to the north and east, (f) the Main State Hig~ay to the south. Location: North Side of Route 25, east of Mill Creek (at Arshamomoque) , near Greenport, Town of Southold, County of Suffolk. County Tax Map Designation 1000-56-4-19 & 24. × Page 2 J F/ Reasons Supporting This Determination: · I (See 617.6(g) for requirements of this determination; see 617.6(h) for Conditioned Negative Declaration) An Environmental Assessment Form (EAF) has been submitted end reviewed indicating that no significen~ adverse .environmental effects will occur. No building construction or site changes are proposed at this stage of the project end the application pending before the Board of Appeals in this "use variance" application is strictly for a dete~Lination of a modification of use in this M-II/R-80 Mixed Zone District classification. The lend area which has been designated for consideration in this proposed cha~ge or modification of Use is upland area surrounding the existing adjacent ccranercial buildings end has been des.ignated at 100 feet to mitigate any possible affects to wetland grasses or 2~aeg~l~~ ~,f~0.~% b~e or buildin~ · ft. ' The r~m33J~ng eas. - In the event a modification of use is granted, all future land activity and proposed construction ¢3uild/ng, well ~stems, parking, leech/rig basins and other site plen considerations) will be subject to a fully detailed site plan end reviews by the Southold Town Planning Board, who shall also consider any new developments under · the S~QRA ProcedUres pending at the time of the site plan application. This project will be required to conform to all applicable laws, rules and regulations pertaining to the use of this property, as well as obtaining approvals frcx~ the: (a) Planning Board, (b) Town Trustees, (c) County Health Depsiu~ent, (d) NYS Depart- ment of Trensportation concerning curb cuts, if appropriate. If Conditioned Negative Declaration, provide on attachment the specific mitigation measures imposed. For Purther information: Contact Person: Gerard p. Goehringer, Chairman Address: Southold Town Hall 53095 Main Road, Box 1179 Southold, NY 11971-1179 Telephone Number: (516) 765~1809 For Type I Actions and Conditioned Negative Declarations, a Copy of this Notice Sent to: Commissioner, Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233-0001 _A~propriate R.e_9, ional Office of th~ _D_e_p_artment of Environmental Conservation Office of the Chief Executive Officer of the political subdivision in which the action will be principally ___l_o_c_ated~ ..................................................................... ApPlicant(if any) c/o Charles'R Cuddy, Esq., Box 1547, Riverhead, NY 11901-1547 Other involved agencies (if any) ; Posted~on Town Clerk BuIletin Board ; to~ files · To: Board of Appeals, T¢,'.en From : F, M. Flynn ge: ObJect[cfm to Appeal 11. La Colla et al (gist Date: Hay 7, 1902 / !lgql . Proposod variance, 1000 ~oe. 5g ~lk. 11 Lots PkANNING BOARD Tile following cowments ;no~rporn;~ my objections to tb~ pefepeue~'d application for a vnriane~(r,). The legal notice does nnt Tq~l~ elqnr to th~ DI1blic the ~cop~ and impact of the proposed vnpiane~(s). It desepiben~ ncmsoeeif:!enl]y, a proposed eimnge from residential tn nonresidential u~o. As ~ p~ult th~ typical r'~s~d~nt wo~lld b~ llnnwnre ~'hnt the pPopn~'l variance' would permit a n~tuat, ion wber-e ovor nin.q aeros of intengiv~ comt,~','e~;~l use would he concentrate-,] at, n ~,mttive and }mznrdo,m loeat:ion. Location of' the Property Property '.- ]., identified on the hppenl. as Dist. lqO0 floc. 56 nll<. ~1 Lot:~ 19 & 211. Thet'e i.s a eonP]~et between thi. s description nr~,q the map pp~pnt'~d by R. Vr~n Tuvl L. .~., and <l:~ted Uarch P6, i092. ~mp ,xc]u,l,., I,ot 10. Lot 5h approxi, mat~ly 2P, ~eres in nro~. Of this aro~ it nppenr~ that 5.11+/- aer~s Jr; ~ctual.]y t,h~ subject of this applier~tion. Reason for Appea] hpplienntl'tatq.q property nnnnot be used as zoned. Property Jn aetu~l]y in t.w~ zoning districts and has a history of bein~ used a~ zoned. Rather than seeking a var:lance for a specific use, the applicant, presents to the Bo~nr, d a r~rnb boFr, op Chinese me~u, of requests rnngJ, nK from the extorlsion of the e:<istin.% uses to n series of uses permJttod in a General Business (B) district. It should he noted that tho o×intlnq un,m are in the ovmnrnhip o£ nthep~ than the applicator/ nnd ennnot be extended. The exception to this would be the present ro~idential use of northerly popt~ons of the applicant's property. The highway frontage is in an MII district and its extension into a residential district would require a rezonin~. with respect tn the applicant'~ alternative, a v~rianee must be for a specific use. Instead, lhe applicant seeI(s hi~ choice amon'~ a hr-c,~d ,,;,n~o of buni. no~ u:~eg permitted in a Goner'al Businees(~) zo~o. Sunh a rnn.,~e of n~es could only be achieved by obtaining a eh;~nge Of zoning. Further, granting m variance to ibc applicant would enable him to evade the site plan rev]eu mandated for a business zoned parco!. A rezonin_F, would dictate such a review for the 5.11 acres }n quey~tion. As ~ result of a variance there would be over nine aereg o£ unplannod b~}~iness use at this ].oeation. Implicit in the devious wording o? the applicant's state, ed re~-n~ ~ ,*~. rezonin~, in an attempt' to obtain a reZon~nq by ,,ubterfU~,,. a ~the guise of seeking a variance. ~This is a common ploy u~ed by o~,mers attempting to secure a increase in the value of otherwise ~arginal propertien. '~ ' house, the ',u. . The highly respected legal p~ Company, in its publication Land qse, puts the entire problem of uno variances into its true perspective. After discussing that use variances are sometimes considered spot zoning, that some venues do not permit use varianceS, mhd that the burden of proof is on the applicant, the text goes on to state: "If every board of adjust~ent anH every oonrt were ~nore of these factors and app].iod them ,,)ore rigerously in place of be~di~g them to mne~ the noo~lnn e q~m~ off developers nnd ]nnd~.~n~rr~, use variances would no longer eonDt~', t,~ a c. ynonym f~r' of zonin~ restrictions. As matt~r~ stn.,d today, zon~]~ ~s as much characterized by the v~rin~cgs fPo~ it ~ by the zdherence to it." Based on the applicant's o%~n] ststements, th~s is obviously an to secure a chan~e of zoning. Xonin~ constitutes a legislative enactment by the Town Board in nccor~anee %.~th a ~l~ster, or Compreh~usive~ Plan. ]~.~ co~,%~ntion are: Among lesal prece~ents nupportin~ th'~ "~oreover under some charter or ~tatutory provisiono, a zoni~ cmhange or amendment may not permit a use in a~y sre~ ~.~hich is contrary to the ~eneral lamd use established for such an area by a masterplan.~' (CorpUs Juris Secundum 101A CJS Zonin~ and Land Planning Sec. 73) some cas~s have held or implied that "However, the courts.tn established a use classification once a zoning author~ Y has for a particulsr area, there is no presumption that ~n a~endment or grant of a special permit or a variance changin~ the use classification of a part of that nrea is in conformity ~ith a comprehensive plsn and the burden of proving such conformity is with the zoning authority." (American Jurisprudence, 2nd.Ed., Sec. 71 ) With respect to the grant,nc of variances, the powers of the Board of Appeals are defin~gnnd circumscribed by Section 100- of the Town Code. The Beard may vary the strict letter of the. zoning regulations provided that the sp]r] ~ of the ordinance ~s observed and that public s~fety mhd welfare are secured. The power to rezone is a legislative perogative and beyond the purview of the Board of Appeals. (2) ~ Even wepe this a legitimateapp] ie~tion for a variance, the limitations on the Bo~r,d's~power, s ,"~u]d at'Il To alter the ~oning oF -~.4+/- ~eres ~,q no ,,~re alteration the strict ..tter of the law. ~,s to the spirit o~ the re~ulati~mn, spirit is eno{her word for ir}tent. However, ]t lo not necessary to interpret ~ither spipJt or intent whgn both ~po in the or4Jnnnn~, itself ¢~nd in the eo~prehensJve plan which the ordinance .is intended to ]mp]amen~. The spirit of the plan has also been exp,-o~s~d in the po]Jey statemgnt~ of zoning- authorities. Among theso are the reject'inn of st~p zoninK and the intent tl~at business uses b~ eor~fJ, ned to her, let a~en.s. I% is also the e}ear intent of the reEu]ations that the develon,,~,mt of business pPoperties, paPticu]aply those of the .size be subject, to site revi,,,.,t hy the Plannin~ ?n~rd. Annl _~nt{on for a varJJYlec J. r3 a transparent :~ttempt to circumvrn{ require<~ont. Tho question o~ r - ' - - ,on,,]d~,r'~l, ion ,~? the pul~]ie'~ safety and wel. ffaro will be discussed later. ~ It is clenr that the objoet~vc o? the app]Jcant, parLieularly v/hen the diverse nature of th~ unes proposed nqd the ~' the property are consJrered, i.s to obtain a chnnff~ of zoning. It is equally clear that ~ueh an objective can only be attained by application to the Town Board. the applicant would still, be fneed with meeting, the standards of proof required by law. ' ' The applicant claims that ntri. et npplJcntjon of t, he ordinance would produce practical.~ difficult, les or ~eoos~a~.y hardship. lie maintains that the parcel Cannot be snJd for residentig. 1 use as zoned. If it can be used for residential, use it has value and can be sold. It is Dot the obl g~tion of the r~unJ, ejpn] ltv to maximize the owner's profit:~. - Two of the abtlttin~., par{?eln fporlt;Jn~, on t',h~ hJf:hway nme) used for residential purpo~e~:. U<>ro to the point, there are two residential improver]cuts on the }~ hO zoned nrea of Lhe property. Additionally, an agree~lent ~mon~ the distri ~uteos of Joseph A. La Cella, dated ~eD~,,]9~, ]0~ 1960 nnd recorded in Ljbnr 4884 Cp. q39, clearly demonrJtrat~s an ~ttompt to further subdivide the property rep resi(lenti~l uae. A cody Of this a.qreomont is at taelmd. · For an understand Lng of ~ ~ .,]tunttion with respect claim of practical ,liffieu]t~es, the hlstopv of t}m must be tnderstoo:l. " to tho prnperty The entire 0~,~ o . pro[ .r ~y of 3 ~+/- ner~m was enquired by ,lormph A. La Cella in 19q6 bydeed recorded in ~ ,.a~ Pq50 Cp.qg7. The .consideration was ~5,500.00, or npprozJmately ~165.00 per acre. The importance of this transaction is that the low nnit price paid took cognizance of certai~l practical difficulties and unique features found on certain areas of the entire property, but outside the area for which a v~riaace is no~.~ sought. The pric~ paid, and the subseque~t history of thc property to date, have bearing on the applicant's c~aim that the property cannot produce a reasonable yield as zoned. It ~s presumed that this refers to the requireme, nt that "dollars and cents" proof of a property's inability to yield a reasonable return as zoned set by the Court of Appeals in the landmark case of ~tto v. Steinhilber. Practical difficulties cannot bo clai~ed ~f self created. Property was originally pure,based in ~946. At that ti~e there was no zoni.~ in Soutbold. t~or was there a tax map. As a result, the owner free to use the property in any manner he saw fit and to apportion it accordingly. Investi~,ation of t}le pub]it r ,.ord., reve,-n]n that wh~nt is now Lot 23 was conveyed bv J~,q~ph A. La Coll~ to E(]~ard vnn Curs and C h~rlotte ux i~] 1')53. Joseph A. La Cella also conveyed what is now Lots 20.1 Lot 22 was conveyed to TI o las D. La Cells by John A. [,a Cella and Joseph A. La Colla~ D. Oliver by the La Cella Estatef.,ff&/ All of the grantees wet~e d'~ '~ ].,,tr~)utee.~ of Joseph ^. !,a Cella who died intestates, in 19f, 0. Th~n is evidnneed by tho previously referenced agreement of .qoptember 10, IO60. .qince t;]e apDortio~nn~t of the property was i~terf~rlily, it fol. l. owr~ that any prncti~;al difficulties resultin~c f'ro~,~ haphazardly placed and parcels is self created. The applicant also clai~!.~ t!,e p~rcel is unique hec,nu~e of its configuration and loc~l, io~ .~nd that an inability to use the property as zoned effectiw~ly eonfiscntes the property. It is a basic premise ef re~l property valuation that all properties are unique as to locatio~] and confifD]ration. Such unique f~atures as may be claimed to exist in the overall property, ~nd adversely affect its w]lue, have been reflected in the discounted purchase price. Certainly the ~rea for which a variance is not unique, or could not be malnta?~ed to be so, wer~ it not for th~ actions of the owners and/or their predecessors in title. The inability to use the property as zoned ,mst be proved. The statement that the "unique" nature effectively confiscates constitutes a statement tb~t t}~e property is without value as zoned. The standard that a preperty must be ~ithout value as zoned to justify a use var~nuee is the ~]eneral standard employed by today's courts..In :~y event, the burden of provin~ the property's lack of value re~ts with the applicant and he must meet strict standards of proof. The applicant also claims that the vari(~nce sought would observe the spirit of the ordinance and would not ch ~ the character of the district. (4) The bulk of the area for which a Variance is sought lies in a R 80 district. Obviously ~ v~riance permitting nOmmercial Use Would Cnan~e the Character of an R ~0 district. Th~ north,s ~r~y por~ los of the property involved ~n is heavily wooded, front~ o~ ~crlt]cal enviro m~,~ ] a large pond ar ~ ~ .thio application uae low de~-~, n-'7'.~'t, ~re3. Thes~ ~. ?d ;~o ~ocar~ed Jn , -- .,o~uy zonln~ of this na~"~n~nCserlst'[es dJctat~ tee town's master p13~, tile towel's independent,professional - -" ,,~ t. no property. In Planning eoonuJt&nts, ~&Ymond, Pqrish, Pine and ~';e~rmr, reco~nSzed these features, and to PreServe them recommended that this area be preserved as eden Sp~c~. The R .qO zoninK w~s Considered the best means to obtain this omi. its ComprehensJv~ Plnn for the Town of .qoutho]d, lng0 2010, also classified this area ns eden space and planned for future acquis~stion by the County of Cuff elk. As to the ~D~;[t of f.h~ r~rdirnnoe, j ~nd the or'~' · have been ~n~CCinct]y ~f;~tor ' and approved ~ ~ o · ''~ ] ~ two rolo oo~ . ln.tDees ].nt~ ~7 Years. The town'~ t .... of 7OS~n Boards ov~- n.,t r Plans moards. Amon~ th~." 7~ ..ua,.ements made by ft.~'=~''t' Oeen SUpportod easterly 600~'/ ']", ~-~ an °PPosJs~ion l.~f~? ~o~,m and P].anninm PIanners Uae, Contrary to th~ ..... ~'"' Were eonvertad to ' ' advice cited, practica!iv ;~r~ of the professional Rte. 25, from 2ndd's Pond ~a,:t~Tentire northerly, ~rr .... would be strip zonod fm~ .Y to the Greenport V~]~s~e l~n~ ' CoPffr~er'O ~ a ] nne. The alSO PIIDS CO/lDtep to th~ f2Obl~ 'n Planners propose 1 vapJanme business Uses to hamlet arnas, stated intent to confine Last]y, but far from ]east or sholl]d bo v;:~. ,. .... , the 2o~pd,~ ~. that t[a ~,.-~- LeO public'S Sap~ ' f,'t~ary concert ~. - .' ~-u~un of Rt~ o~ - . '~*-uy. The autb~.,~- '~' the LIr, o ~.~ 1,- ~rom H~].I Cre,q~ ,. o,,. ...... ~r~y aloha tha ~ The arc z~hway overpqas~"o~ ~ epof the Curve r'orhleos q drivers line of site and hence - ~ as presently constituted. his reaction tinge. Rte. P5 ia n two lane highway heavily traveled Particularly in Summit,. ~rn] ~ across the f]ow of traffic, abetted by the reduced reaction t~me dictated by the CUrve, resuts in a potential for disastrous rear end - collisions. Another the hit, h,.,..,.~ -~c,,,*my ].a the nh.~ S .... ~ natur~ of the lisa or ,..?zerpa~n nernss th~ ~T~n .S'fade r~sultin~ from be anti~i~"~ue;all the more n~-'.-,~="a,n~n'~' This also '* marina on Sa~e BJ. vd. Can Tha Present nr~a of tltlD], · Creek consti~,,~ ~o . .qnneu business nine driveways ..... ~' apProxzmately 3.4 acre]'7 east of t.h~ Mill There are currently this area. The interseetin~ the northerly side of Rte. 25 from developed business area i~ opposite the confluence of Dolphin and Albacore Drives on the map of Southold Shores. (5) Granting this variance would result in over nine acres devoted to business 'uses at this location. TTot only would these uses be unsupervised by plannin~ author±ties, but there would be an attendent increase in driveways and traffic. The easterly extension of business use would also place it opposite Tarpon Drive on the Map of Southold Shores. The existing highway sjtuntion ~n thin area is already so hazardous as to warrant investigation by the MYS Dept. of Transportation. For this reasoT~ alone the ~rantJn~ of the proposed vmriance would be unconscionable. The existing business uses Jn the area date from a period when there was no zoning and grew like Topsy. ~y way of contrast, the map of Southold Shores was approved by the Planning Board as being in ae~rdanee with the town's zoning. Extendin~ hhe zonin~ on the subject property would n~t only adversely affect the safety and we]fare of tho residents of Soutbold ~hores and devaluate their propertJe~:, b~tt would set a precedont for further applications for businoss use on the southerly side of Rte. 25. PLANNING BOARD MEMBERS Bennett Orlowski, Jr., Chairman George Ritchie Latham, Jr. Richard G. Ward Mark S. McDonald Kenneth L. Edwards Telephone I- 16) 765-1938 MEMORANDUM TO: SCOTT L. HARRIS Supervisor PLANNING BOARD OFFICE TOWN OF SOUTHOLD Town Hall. 53095 Main Road P.O. Box 1179 Southold. New York 11971 Gerard P. Goehringer, Chairman Zoning Board of Appeals FROM: Bennett Orlowski, Jr., Chairman RE: Appeal No. 4091 Eugene M. LaColla DATE: May 6, 1992 This is in reference to the above-noted appeal which is the subject of a hearing at the Zoning Board's May 7th meeting. The application was advertized as a request for a Variance from the provisions of Article III, Section 31, A. and B. {of Chapter 100 of the Town Code), for permission to "change use of a portion of the subject premises from residential to non-residential." On the application form, the applicant specifically asked that "existing uses be extended, or in the alternative that business use as in the General business (B) district be permitted on the upland acreage limited to wholesale businesses, warehouses, contractors' businesses, office builidngs, repair shops and retail sales." The Planning Board has reviewed this proposal in some depth for reasons that will become evident as you read on. The following information may be relevant in your review of this appeal. The subject property is a split-zoned parcel. Although the application does not provide this detail, we have calculated from the survey submitted with the application that approximately 1.47 acres of the applicant's property is zoned Marine II and the remainer is zoned R-80 Residential. The property owned by the applicant contains one dwelling. The applicant's request concerns the extension of non-residential uses to 4.653 acres of residentially zoned land. The existing commercial uses are on adjoining lots which are not owned by the applicant himself, although some of the C lots may be owned by family members. Ail the business uses lie within the M II zoning district. They include a liquor store, a residence with a studio and pottery shop, a restaurant, a residence and a contractor's storage barn. Each of these uses are considered to be non-conforming uses in that they are not allowed uses within the M II district, although a restaurant is allowed by Special Exception in the M II district. There is a minimum requirement of 80,000 square feet per use in the M II district. We noted that the applicant did not specify whether any of the existing uses would be expanded, or whether new uses would be introduced. Although the applicant asks the Zoning Board to consider two alternatives, he actually puts forth only one option: and that is to allow the introduction (or expansion) of existing non-conforming uses on other, separate lots within the Marine II zone to the applicant's property in both the Marine II and the residential zone. The Planning Board has concerns about this parcel and application, which arise out of preliminary conversations held by the applicant's attorney with Planning Board staff, the Planning Board itself, the Chairman of the Board of Trustees and the Chairman of the Land Preservation Committee. The gist of these conversations and the accompanying correspondence are set forth herein. In July of 1991, Mr. Cuddy, acting as attorney for the LaColla family, approached the Chairman of the Open Space Committee, (now referred to as the Land Preservation Committee). On behalf of his clients he asked if the Town would consider the purchase, as open space, of a portion of the subject property for a price that had been determined based on the owner's estimate of the n~mber of residential building lots that could be created. The advice of the Planning Board was solicited with regard to the estimated yield. The Board and its staff reviewed the survey and the aerial photograph of this property; and found that the survey of the property presented insufficient information upon which to make an educated estimate. It was evident from the aerial photograph that the property had extensive tidal and fresh water, wooded wetlands, all of which appeared to be within the jurisdiction of the Town Trustees and possibly the New York State Department of Environmental Conservation. The owner's map that had been submitted to us for review, did not accurately depict the extent of the wetlands. Therefore, a strong recommendation was made to have the wetlands flagged, whereupon the Planning Board would solicit the recommendation of the Town Trustees as to its accuracy. In fact, at the request of the Open Space Committee Chairman, the Trustees agreed to have their environmental consultant flag the wetlands, free of charge, provided that flagged line was added to a current survey to be made by Mr. La Colla's surveyor at their expense. The La Colla's did not pursue this recommendation. Accordingly, the survey that has been submitted to you as part of this application does not give an accurate description of the nature of the property. A copy of the aerial photograph is attached for your comparison. If the Zoning Board decides to proceed with the applicant's request to allow the extension of non-conforming uses into a residential zone, the following observations are offered: A long environmental ~sessment form should be completed by the app= i~ant. The suDject property lies contiguous to Hashomomack Creek, which has been designated a critical environmental area by the Town Trustees. Therefore this action must be reviewed as a Type I action, subject to coordinated review with this Board, the Trustee Board, the State Departmenr of Environmental Conservation, the State Department of State and the County Department of Health. The applicant should submit written, financial proof that a reasonable re~urn cannot be obtained from the property as it is currently zoned, for both the M II and the R-80 zoned portions of the property. Your Board may find the enclosed material on the landmark case, Otto vs Sternhilber, to be quite useful. The decision in this case set forth a test, whereby the owner must demonstrate the following: 1. that the subject parcel cannot yield a reasonable return in the respective zones of M II and R-80. 2. that the owner's situation is due to unique circumstances, not the general conditions of the neighborhood. 3. that the proposed use will not alter the character of the area. In closing, I would appreciate receiving a copy of the minutes of the May 7th hearing of this appeal. Please let me know if my office can be of further assistance. CC: Board of Town Trustees Land Preservation Committee Town Attorney's Office 301 So. Allen St., Albany, N.Y. 12208 Vol. 52 No. 2 March-April, 1988 A Practical Guide To Otto As a private practitioner specializing in municipal law, I have had to wrestle with the jumble that has arisen out of the case known as Otto vs. Steinhibler, 282N Y 71, while advising my municipal, as well as private clients. When Otto was first decided, and indeed for many years thereafter, its three pronged test for judging the entitlement to a use variance was touted as a great clarification device in the world of zoning variances. Over the years however, numerous cases and articles have dimmed what was once the bright light of Otto. Questions have arisen regarding the real need to prove uniqueness and how "unique" is "uni- que''. If the proposed use alters the es- sential character of the locality, does that mean that the applicant gets no re- lief at all? These questions and many others seem to pop up every time a dif- ferent use variance case is heard. I hope in this article to propose a method of looking at the requirements of Otto which will put some logic and clarity into the process without taking too many liberties with the judicial intent of Otto. By way of brief review, Town Law §267(5), Village Law §7-712(a)(c) and General Cities Law §81 (4) all provide substantially that "where there are prac- tical difficulties or unnecessary hard- ships in the way of carrying out the strict letter of [zoning] ordinances, the Board of Appeals shall have the power, in pass- ing upon appeals, to vary or modify the provisions of such ordinance...". Town Law §267(5). Mr. Chatfield is an Associate Director for the New York Planning Federation. He has authored articles for PLAN- NING NEWS, and is a frequent panelist at our Annual Planning & Zoning Institutes. By: Scott Chatfield, Esq. Scott Chatfield Associates, Inc. The Court of Appeals in Otto, separ- ated "use" from "area" variances and stated that "unnecessary hardship" was required to prove entitlement to a use variance while the lesser standard of "practical difficulty" was required for area variances. The Court made this dis- tinction because it recognized in the use variance application, a far greater po- tential for an applicant's proposal to do violence to the purposes of the munici- pality's zoning ordinance than existed in an area variance application. After ma k- ing the distinction between area and use variances, the Court announced the now famous (or infamous) three pronged test for use variances. To be entitled to a use variance an applicant must demonstrate in the record that; I) The land in question cannot yield a reasonable return if used only for a pur- pose allowed in that zone; 2) That the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood; and 3) That the use to be authorized by the variance will not alter the essential character of the locality. Otto vs. Stein- hilber, 282NY 71. Subsequent cases, too numerous to mention here, have made it clear that the first test of Otto, "reasonable return", must establish that the effect of the ordi- nance on the owner's land is to deprive him of the ability to derive a"reasonable return" on his investment. He must show this by dollars and cents proof in the record. U p to this point 1 have stuck strictly to the facts, but now I want tb be argumen- tative for a moment. I believe that a large part of the confusion associated with the three pronged Otto test can be done away with if instead of thinking of an application as one for a use var- lance, we think of an application as one for "relief, the exact nature of which we have not yet determined". You see, typi- cally an applicant, upon recognizing some difficulty in using his parcel in ac- cordance with the ordinance, comes up with a specific proposal for his land if he can get a variance. Very often he not only has a specific idea but he also has a specific buyer. The result of this ap- proach, assuming the ZBA grants some of these requests, is to institutionalize "zoning by applicant fiat". What results from this approach to variances is a hodge-podge of uses with no discernable plan and no apparent rhyme or reason. In other words, a zoning mess. The way to avoid this pitfall, in my opinion, is to view an application for use variance as one for "relief, the exact na- ture of which has yet to be determined". By taking this view, the three prongs of the Otto test take on a new shading, which tends to highlight their particular functions, and minimize the confusion in their application. Let's take each test individually and see how it would fit into this approach. REASONABLE RETURN. In my judgment, the reasonable return test is the only test required to decide if an applicant is entitled to relief. After all, if he has indeed proven, by competent dol- lars and cents proof, that the strict ap- plication of the ordinance to his prop- erty deprives him of any reasonable return on his investment, then to deny him some form of relief is effectively to condemn his property, something which the constitution says a municipality can't do without paying just compensa- tion. So, I would argue that you only need a one-prong test to decide if an applicant for a use variance is entitled to relief--has he shown that he can't derive (Continued on page 3) Otto (Continued from page 1) a reasonable return on his investment? If he has shown this then he gets relief--if not, he is denied all relief--it's as simple as that. One question, one answer--yes Now, let's assume that the ZBA has decided, based upon the evidence pre- sented that the applicant has proven "no reasonable return", and is therefore en- titled to some kind or measure of relief, the next question is what kind of relief is he entitled to? Remember, we haven't decided that he is entitled to a use variance, only that he is entitled to "relief, the exact nature of which has yet to be decided". The sec- ond prong of the Otto test is necessary in my judgment to decide what type of re- lief should be offered to the applicant. UNIQUENESS. The Otto case makes it clear that an applicant cannot obtain a use variance unless his "plight" is due to unique circumstances and not due to the general conditions in the neighborhood, which may reflect the unreasonableness of the zoning ordi- nance itself. Stated another way, if the failure to yield a reasonable return is due to some factor which is common to sev- eral other properties in its neighbor- hood, then the answer does not lie in granting a variance, rather, it lies in changing the ordinance in such a way so as to allow the property to yield a reason- able return to its owner while still recog- nizing the limitations of the land which gave rise to the proof of no reasonable Let's take a rather common example by way of illustration. Assume that the owner of a parcel of land zoned only for single family residential use establishes that the road upon which his property fronts has, over time, been expanded or enlarged to the point where it now serves as a major traffic artery. The result of this change has been to render all sim- ilarly situated properties in the area vir- tually worthless for single family resi- dential uses. He proves that a qualified real estate firm has actively marketed his property for more than a year but has been unable to find a buyer at any price for residential uses. Obviously he is en- titled to relief but he is not entitled to a use variance. What should happen under these circumstances is that the ZBA should deny the use variance re- quest and should advise the legislative body that they must amend the ordi- na ncc so as to allow all owners who own land subject to this condition to use their properties in a manner which will allow them a reasonable return. The legisla- tive body could, for example, rezone the involved territory to a commercial cata- gory, or perha ps add specially permitted commercial or office uses to the residen- tial district uses, etc. If the legislative body fails to grant such relief, the owners could probably sue the munici- pality successfully for condemnation of their property, but that's a subject for a whole different article. The point is that the second test of Otto--UNIQUENESS--should be ap- plied only where the first test has been satisfied and then only for the limited purpose of deciding what type of relief the applicant is entitled to. ESSENTIAL CHA RA CTER. Let's assume that an applicant has satisfactor- ily established, I) that he needs some kind of relief because he can't get a rea- sonable return, and 2) that the reason he needs relief is not due to a problem shared by other neighborhood proper- ties. If we reach this point then we have decided that the type of relief needed is a use variance. The question now be- comes--what uses should we allow him to have by this variance. This is where the third prong of the Otto test comes in, and l would argue that it only comes in if the first two tests are resolved as set forth above. In my opinion, the real purpose of the third Otto test is to create a fail-safe mechanism designed to protect munici- palities from the potentially disastrous effects of zoning by applicant fiat. If the use requested by the applicant would alter the essential character of the local- ity then he should not be granted a var- iance which authorizes the particular use which he has requested. Where is it written that the ZBA can only choose between denying the variance or allow- ing the applicant to do what he wishes? If we view the third Otto test as a test designed to determine what uses should be allowed, then the ZBA is not placed in this unhappy dilemma. Allow me another example by way of illustration: Otto says that to be entitled to a use variance an applicant must demonstrate that "the use to be author- ized by the variance will not alter the essential character of the locality." Let's assume an applicant has estab- lished that he can't derive a reasonable return and that his plight is unique to his property, but he is asking for a variance to allow an automobile salvage and crushing operation on property zoned for residential purposes only, which is fairly near a commercial part of the community. Let's assume further that the proof shows that the automobile salvage yard would alter the essential character of the locality. Under these rcumstances, I believe that it i~: incunna bent upon the ZBA to look at the whole world of other possible uses to see if any of them would allow the applicant a reasonable return without altering the essential character of the locality. Per- haps the land in question could be used for offices, or even a small scale neigh- borhood grocery store, etc. The point is, that if the applicant has proven that he is entitled to relief, and if the appropriate type of relief is a variance, and if the applicant's proposal will alter the essen- tial character of the neighborhood, then it is incumbent on the ZBA to find a use or group of uses that will allow the ap- plicant a reasonable return without al- tering the essential character of the locality. The solution to this problem may prove difficult, but I see no prohibition in the cases or statutes of NY which would deny the Z BA the right to hire an expert and have him report on potential uses which would provide a reasonable return without altering the essential character of the neighborhood. I suspect that the expert's fees would be cheaper than the municipality having to pay to buy the applicant's property. In summary, ! am advocating only a slight shift in the perspectives from which we view Otto, but I believe that this perspective shift allows us to see all three prongs of Otto in a clearer light. We end up with a serial approach to Otto's three tests, each test being de- signed to answer a specific question in turn as follows: l) Should the applicant get relief? --REASONABLE RETURN 2)Should the relief be a variance or a zone change? UNIQUENESS 3) What uses should be authorized on this property by way of variance? ESSENTIAL CHARACTER It has been my experience that most variance applications will fall short of the required proof at test one or test two, and it will be the rare case indeed which needs to be decided all the way to test three. Accordingly, the handling of use variance applications could be stream- lined and simplified by following this approach without limiting in any way the rights of the applicant. Using the approach outlined here, the Planning Board could offer its opinions on the effect of the applicant's specific proposal on the essential character of the neighborhood, and this opinion may be of some value to the ZBA if and when it has to reach an opinion on the third test. 3 , (~C'ont~uedfrom ,lan-Feb. 1988 .Other (~rounds for Denial: 1) Whether the variance applied for is the minimum variance that is neces- sary. ' 2) Is the variance sought one that is ~erely desirable for the greater enjoy- ment of the property, as opposed to one that is necessary for continued practical utilization of thc premises? (Bielak v. Zoning Board of Appeals, 78 AD 2d 435). 3) Is this hardship self-created? An area variance cannot be denied solely on the ground of self-created hardship, but it is a factor to be considered. 4) Is thc plight of the owner due to personal problems of the owner as op- posed to matters dealing with the land or buildings? While an area variance may not be denied solely on this basis, it is a factor to be considered. To reiterate, the critical dollars and cents items are the original purchase price, the current market value and the projected market value with the var- iance having been granted. As com- pared with the purchase price, if the dif- ference between the current market value and the projected market value is significant, then the applicant has proven his case as to significant eco- nomic injury. Once again we are dealing with dollars and cents proof. If it is not there, then deny the application. The other grounds for denial listed above are very important. Many times an applicant will petition for relief far beyond what he really needs. You have the power to cut it down. Please pay close attention as to whether this var- iance is one so that the applicant can more fully enjoy his property, or is it one that is really necessary for him to make practical use of his property? These days there are many applications for area vari- ances to permit decks to be built into the side yard set back. Do you believe for one moment that a deck is really neces- sary for the continued practical utiliza- tion of premises? The answer is no. The same applies to a swimming pool. It is not necessary for the continued practi- cal utilization of the premises or every house would have a swimming pool as a matter of course. Consider carefully whether these owners' problems are due to personal problems or whether they deal with land or buildings? 1 would remind you of thc "drafty porch case" where this couple bought an old house. They had several children. The children were sick all win- ter because of the drafts and snow blow- 4 NO DOLLARS - NO VARIANCE By Russell L. Egleston, Esq. lng in around the front door. So the owner decided he would build a little entrance enclosure around the front door. He didn't know anything about front yard setbacks but he was soon to be educated on that term. The building inspector demanded that he tear down the enclosure. He appealed to the Zon- ing Board of Appeals and at the hearing, he even had the doctor testify that those kids are sick all the while, they have colds, the croup, the flu all winter long is caused primarily by that drafty porch with all the air leaks around the front door. This family really needs that en- trance enclosure in order that these kids not be sick. That is pretty heavy evi- dence coming from a medical doctor and so the Zoning Board of Appeals not bothering with these standards, well we have got to grant that variance and so they did. The next door neighbor ap- pealed and the Court said that the only reason why that man wanted that enclo- sure was for his personal problems, his kids getting colds. It had nothing to do with the land and therefore, the variance should never have been granted. Let's consider for a few minutes the conduct of the hearing. At the beginning of the public hearing, the Chairman should read the rules for the conduct of the hearing. He should explain that the petitioners will be heard first, the oppo- nents second, and then the petitioner will be permitted to wrap it up. It is advisable to suggest that everyone take the oath to tell the truth. This will elimi- nate a lot of needless chatter. The appli- cant can be reminded in the hearing guide that he may wish to bring his own court stenographer. The applicant should be cautioned in the hearing guide that if he intends to produce exhibits, then he should furnish them in seven copies. The secretary or preferably the ZBA attorney will stamp each exhibit and number it consecu- tively or affix a letter to it, depending on whether the exhibit is from the peti- tioner or the opposition. It is encour- aged that the hearing be conducted in an orderly fashion with only one person speaking and speaking in a fashion so The above are excerpts of remarks generally made by Mr. Egleston during our 49th Annual Planning and Zoning Institute in October. He has authored several articles on zoning issues for Planning News, and is a frequent par- ticipant at our institutes. that everyone in the room can hear him. This is a hearing that has to deal with the applicant's rights, the right to use his land in the manner desired. The ZBA is entitled to discuss the evi- dence, to weigh the evidence, and to dis- believe evidence. As we recited earlier, the evidence should find its way into the Findings of Fact. After the findings of fact have been made, then the Conclu- sions of Law should be set forth and these will deal with legal ramifications of the Standards of Proof and the proof that has been furnished. With those two things having been accomplished, the Decision will become obvious. All to- gether too often, ZBA members will play it by ear ~nd will make the decision before the hearing even opens. That is absolutely wrong. Care should be exercised by the Board as to when it closes the hearing because the date of closing the hearing is significant. A time clock starts to run on the day when the hearing is closed and a Decision must be made within sixty days or the applicant will automatically receive the relief he sought. Where there is any question to be resolved, or any further inspection to be made of the premises, then by all means adjourn the hearing for continuance at the next reg- ular meeting. Many Boards make it a standard practice that no decision will be made on the night of the hearing. This will give them time to think over all that has been presented to them and to come up with probably a better decision. The ZBA has the power to impose conditions on the grant of any variance. However, a reason for that condition must appear in the Findings of Fact. In other words, there must be some reason to base that condition if there is no rea- son recited in the Findings of Fact then, upon appeal, the condition will be striken. If the Decision is contrary to previous decisions on nearly identical facts, then it is important under a recent Decision that solid reasons be set out in the Deci- sion as to why previous Decisions were not followed. In the past we have always said that prior Decisions were not bind- ing. Now that rule is not quite true. They are not binding, but if the Board departs from them, there most be a reason. The final resolution setting out the Findings of Fact, the Conclusions of Law and Decision should be set out in a formal fashion. It will probably cover several pages· At the end, there shou be provisions for each mBA member sign his name and to indicate how he voted on the Resolution. That final Resolution must be filed immediately in th~ Town Clerk's Office and a certified copy must be sent by registered or certi- fied mail to the applicant. The date of thht filing in the Town Clerk's Office triggers another time clock. If anyone is dissatisfied with that Decision he has only thirty (30) days to commence an appeal in the Courts. This is called an Article 78 Proceeding. In that Article 78 Proceeding, a Court review proceeding, the only papers that the Court will have before it will be the Application, the Minutes, the Resolution and the Exhib- its. The Resolution will be the most im- portant document of all, because the Court is concerned with one thing and that is whether the Decision is arbitrary, capricious or is unsupported by evi- dence in the Record at the hearing? If there are no findings of fact and so on, then there is nothing on which the Court can decide and the case will be returned for another hearing with a lot of wasted expense. Underscore once more variance re- lates to the use of land. There is the story of a man who after having received a variance from a Zoning Ordinance sought to get another type of variance. He went to the Town Justice and said, 1 just got a variance from the Zoning Board of Appeals so that I can use my land for a use that is not permitted in the Zoning Ordinance. He went on to say, I want to drive my car 70 mph, I want a variance from the New York State speed limit. The answer to that is, speed laws have to do with persons. Once again, zoning has to do with land. Zoning has its faults and short com- ings, but nothing better has been · contrived. It is easy to forget, or perhaps I should say that it is difficult to appreciate at times that the DeveIoper and the Town are poles apart. The Developer is going to plan and develop and build in the cheapest and least expensive manner possible consistent with his objective to attract certain clients, certain tenants and so on. He will not spend one dime more than is necessary to achieve those goals unless he is a damn fool. He is not going to spend hundreds or thousands of dollars just to make a place beautiful. He will do it for his own selfish interest and for no other reason. The interest of the Town and its people and the neigh- bors is entirely different. They want this project to be beautiful. They want it to harmonize with what is already there. [They don't want their property depre- ciated. They don't want obnoxious uses to creep in. Remember to bear in mind, we are dealing with interests that are poles apart. The Zoning Board of Ap- peals and the Planning Board can do much to bring together and harmonize these interests, but don't for one mo- ment leave things to the role of oral promises, because they are soon forgotten. Zoning is not static. Zoning ordi- nance needs periodic revisions. If your Ordinance is older than six years, the likelihood is that it needs a major over- haul. Consider for a moment the new uses and there are new uses occurring all the while. Who ever heard of VCR mov- ie rentals ten years ago or six years ago? Who ever heard of video games ten years ago? Who ever heard of instant teller machines for banks five years ago? Everything is changing--that is the only thing of which we can be sure. And zon- ing ordinances must be changed to keep up with it. Zoning Ordinances must be changed also to take benefit of history. Things are changing within the Town, nothing goes as you plan it to be, so the Ordinances need revision. Older Zoning Ordinances are usually set up on a pyramid basis with single family home use at the top or apex of the pyramid. Single family home use may be called an R-I District. Beneath that R-2 District which permits two families and one family. Beneath that--R-3 District which permits three family, two family and one family. Next down the pyramid is C- I District--permitting commercial, R-3, R-2, R- 1, and then at the bottom is Industrial--permitting C-l, R-3, R-2and R-l. In other words, Industrial is the catch all. We have learned that we do not attract industry if the district zoned for industry is a catch all. Good indus- tries do not want kids touring the grounds and spraying graffiti. They do not want them underfoot. They don't want them in the way of traffic. I do not intend to be harping on kids, but it points out the problem. The needs of industrial areas and good commercial areas are entirely different than the needs of a residential area. History has shown us that you cannot successfully allow multiple families and single fami- lies scattered willy-nilly throughout a district. Most towns are finding that the better way is to revise their zoning ordinance to the horizontal scheme wh~:reunder no uses are repeated. R-l District permits one family and so forth. Industrial per- mits industrial and nothing else. Of course, in any given district, it may in- de other uses which are of thl* sa~e nature and which will n. ot pro- duce any disharmony or adverse impact on other uses. Your zoning ordinance should be amended to prohibit any earth disturb- ance in contemplation of building to be done without a zoning permit and build- ing permit. Without such a prohibition you will someday be faced with a Devel- oper who will say "l have spent several thousand dollars in getting ready to build this project and you have just got to give me that permit." We must be mindful that as soon as earth is dis- turbed or trees cut down, or excavation is started, then there is a commitment for that piece of land in a manner differ- ent than its previa)us use. We should remember that a zoning permit is valid only if there is nothing about the project that violates the zon- ing law. You may hold a zoning permit but if there is some zoning ordinance violation, for instance a side yard viola- tion, then that permit is void and the holder has no rights whatsoever regard- less of how much money he may have spent in reliance on the void permit. He has no vested rights whatsoever. In other words, the burden is passed onto the owner or permit holder to make sure that he complies with the law. The fact that he has a permit does not guarantee or insure him in any fashion whatsoever that all of the provisions of law are being satisfied. Likewise, a certificate of occu- pancy is no guarantee to the permit holder or to the occupancy holder that the building was built according to the Building Code, that the building is safe, that the building was built in accordance with the Zoning Ordinance. The build- ing permit and certificate of occupancy are for the benefit of the Zoning Officer and Building Inspector's employer, the Town Board and nobody else. They give no rights and no responsibility and no liability to the holder of the permit or certificate of occupancy. This will shake up a lot of permit holders, but that is the law. In the course of zoning ordinance re- vision, two major recommendations are made and they are to move all special permit authority from the Town Board and the Zoning Board of Appeals and give it entirely to the Planning Board. The Planning Board is in the ideal posi- tion to deal with the special permit uses. Special permit uses should be discour- aged as much as possible, but where they are employed, it is imperative that standards be set up to guide the discre- tion of the Planning Board. If there are (Continued on page 6) 5 ,(Continued from page 5) no stgndards, then a permit will likely fail on appeal. A special permit is a strange breed of animal. A special per- mit use is one that is determined by the Town Board to be o.k. for this district provided that the applicant satisfies cer- tain additional conditions, and those are the standards. In other words, the appli- cant is halfway home if all he needs is a special permit. The second strong recommendation is that site plan review and approval be incorporated into the Zoning Ordinance. and that this be given to the Planning Board. The Site Plan Review and ap- proval process will enable the Planning Board to deal with such things as where the parking for an apartment project is to be located; where the driveways will be located; what type of lighting will be used for security; where will that light- ing be placed; will there be a burden on the sewer system; will there be a burden on the water system; will there be provi- sion for regular pickup and disposition of rubbish; will there be a playground and where will it be built; what trees and planting and landscaping will be re- quired; and will they be required to be replaced. What kind of trees and plant- ings will be planted; will they be of a type which will grow in this cold country? These sorts of things can be addressed by Site Plan Review. Site Plan Review is probably the most important unad- dressed issue in the whole field of zoning. When you leave this seminar you will hopefully remember these three things: The Master Plan sets out the goals, goals for the future. The Zoning Ordinance will imple- ment the Plan and determine "what can go where'? The Site Plan Review Process will de- termine "what will it look like?" Hopefully all of you will be planning for January I, 2,000. This is a challenge. You have the tools with which to do it, and you have heard the methods to achieve it. It was a great pleasure to see this splendid audience and to note that not one person out of several hundred left the room. We are dealing with impor- tant things. Your most treasured possession--land. 6 APPELLATE DIVISIONS In Matter of the County of Monroe's Compliance with Certain Zoning and Permit Requirements of City of Roches- ter, the Fourth Department addresses the always thorny problem of govern- mental, as opposed to proprietary, func- tions of a local government. The County of Monroe ("County") owns and operates the Greater Roches- ter International Airport ("Airport"), the terminal, runways, etc., of which are located on property owned by the County and situated in the City of Ro- chester ("City"). The Court finds itself presented with the "novel question" of whether the planning, design and construction of proposed Airport improvements are subject to the site plan review process and permit requirements of the City. The Court holds that the County is exempt from these requirements be- cause "the County is authorized by stat- ute to operate and maintain the Airport and the Airport expansion involves a governmental rather than a proprietary function." The Court finds that, as a general rule, a municipality is not subject to lo- cal zoning or building restrictions in the performance of its governmental, as dis- tinguished from its proprietary, activi- ties (citing Little Joseph Realty v Town of Babylon, 41 NY 2d 738; Nehrbas v Incorporated ViL of Lloyd Harbor. 2 NY 2d 190). But, the Court admits, it is not easy to distinguish one from the other. The Court makes the distinction as follows: "[T]he governmental functions of a municipality are those conferred upon it as a local agency, to be exercised not only in t he interest of its inhabitants, but also in the advancement of the pub- lic good (see, Walla Walla v Walla Walla Water Co., 172 US 1. These in- clude the expenditure of money relating to public improvements. A distinction between acts in the performance of a governmental function and those in the performapce of a proprietary function is that in the case of the former the munic- ipality is executing its legislative man- date with respect to a public duty gener- ally, while in the latter it is exercising its private rights as a 6orporate body (see, O'Brien v Town of Greenburgh, 239 App Div 555, aff'd 266 NY 582). Typical examples of municipal govern- mental functions are the exercise of em- inent domain, assessment and collection of taxes, police and fire protection, wa- ZONIN£ ter treatment and sewage and garbage disposal." Citing cases from other states, the Court finds that the overwhelming auq thority in other jurisdictions is that the operation and maintenance of an air- port is a governmental function, and holds that that is the case in this matter. Being a major facility, located on inter- state air routes and utilized by public and private aircraft traveling both lo- cally and interstate, the Airport "is op- erated for the benefit of the general pub- lic and not for the particular advantage of the inhabitants of the City or the County." Planning board vote not in accordance with law. In Matter of D. E.P. Resources, Inc., v Planning Boardofthe Village of Ma- lone, 131 AD 2d 757, 2 out of the 5 members of the planning board voted to deny petitioner's application for subdi- vision plat approval. One member dis- qualified himself, one was absent, and of the members present, one voted in favor of the application. Pursuant to Section 41 of the General Construction Law, whenever three or more public officers are given any power or authority, a majority of the whole number of such persons or officers shall constitute a quorum, "... and not less than a majority of the whole number may perform and exercise such power, authority or duty". Accordingly, the Appellate Division (Second Department) holds that since the planning board consists of 5 members, at least three of them must concur on a given resolution in order for there to be a valid exercise of the board's powers. Further, in view of the fact that this was not done, the planning board failed to validly approve or disapprove the petitioner's application within 60 days, and therefore the subdivision ap- plication is deemed granted by default, pursuant to Section 7-728 (4) of the Vil- lage Law. Town board cannot usurp planning board's authority. In Worthington v Planning.Board of the Town of Carmel, 131 AD 2d 466, the planning board, in May of 1984, re- ceived an application for approval of a subdivision plat. In November of 1984, the town board passed a resolution that the subdivision application be accepted for open development, subject to certain conditions. In February of 1985, the DECISIONS - planning board granted final subdivi- sion approval to petitioners, with no re- sti~ictions upon the future subdivision of ~, th~ 5 newly created lots. ~ln February of 1986, the town board issued a resolution "clarifying" the one of 1984, which, among other things, prohibited further subdivision of the open development area. Petitioners' ap- plication to subdivide one of the parcels of land which had been created by the initial subdivision was denied by the planning board based on the town board's clarification. The Second Department holds the clarification by the town board of its prior resolution was improper. Town Law, section 28-a (4) provides that a town board may, by resolution, establish an open development area within the town in certain circumstan- ces, and, if there is a planning board in the town, "upon such conditions and subject to such limitations as may be prescribed by general or special rule of the planning board". The statute also states that before establishing an open development area the matter shall be referred by the town board to the plan- ning board for its advice. Similarly, Sec- ! tion 276 of the Town Law provides that the town board may empower the plan- ning board to approve preliminary and final subdivision plats. The Court holds that under the facts and circumstances of this case, the clari- fication by the town board "was a usur- pation of the authority of the Planning Board to impose conditions and limita- tions upon the open development area, as well as upon the authority of the Plan- ning Board to approve or disapprove subdivision plats (see SRW Assocs. v Town Bd., 121 AD 2d 713; 1979 Opns Atty Gen 147-[48)'. Consequently, the town board's reso- lution of February, 1986, is annulled; the planning board's determination of April, 1986, which was premised on that resolution, is also annulled, and the matter remitted to the planning board for a new hearing and determination. (ED. NOTE:) The original application for subdivision approval was submitted to the planning board in May of 1984. The first town board resolution was in November of 1984. In Febru- passed ary of 1985 the planning board granted final subdivision approval. Since way more than 45 days passed, why didn't the applicant get default approval of his plat? Denial of use variance arbitrary and capricious. In 1973, Petitioner received approval to develop and construct a residential subdivision consisting of 21 building lots, each with a duplex constructed there- on. The subdivision plan also provided for the construction of a two-story community recreation building, along with a swimming pool and proposed tennis court. The tennis court was never built, and the swimming pool was closed because it was not economically feasible. In 1977, petitioner obtained a build- ing permit to construct two residential units on the seond floor of the recreation building and created an illegal unit on the first floor. After pleading guilty to zoning violations, he applied for a use variance to convert the former recrea- tion building into a multifamily, four- unit apartment building. The use var- iance was denied, and petitioner's Article 78 proceeding dismissed. The Third Department, in Matter of Kontogiannis v Fritts, 131 AD 2d 944, holds that the denial of petitioner's ap- plication for the use variance was arbi- trary and capricious, reverses the lower court's judgment and annuls the deter- mination of the zoning board of appeals. After reciting the Otto v Steinhilber tests for the determination of a use var- iance application, the Court holds that the ZBA did not address whether peti- tioner met the first two elements of this test (lack of reasonable return; plight of owner due to unique circumstances). The ZBA merely made conclusions as to the effect of the proposal on the charac- ter of the neighborhood and found that the alleged hardship was self created. The Court finds the ZBA's conclusion that the original purpose of the recrea- tion building, i.e., to be converted into multifamily use in a few years, was without support in the record, the evi- dence showing that its original purpose became obsolete. Thus, the hardship was not self created. Further, the ZBA's findings that the proposed multifamily use would not be in harmony with the intent and purpose of the town zoning ordinance, are also found to be without merit. The ZBA's findings on the effect of the proposal on the character of the neighborhood "are not supported by substantial evidence in the record", and the ZBA did not address the above- mentioned two tests at all. Therefore the matter is remitted to the ZBA for further proceedings. Unnecessary hardship not proven. Petitioners, owners of property in a single family zone, brought an Article 78 proceeding to contest a variance granted to an adjoining property owner to erect a sign and provide off-street parking. Supreme Court dismissed the petition. In Matter of Varley v Zoning Board of Appeals of the City of Saratoga, 131 AD 2d 905, the property in question was purchased in 1979 for $42,000, with $1,000 in improvements added. Spor- adic attempts were made to sell the property, by placing newspaper ads and putting a sign on the premises. The property was never listed with a realtor. The asking price was $125,000, and offers of $50,000 and $65,000 were rejected. The Third Department finds that ex- pert testimony at the hearing showed that the fair market value of the prop- erty for residential purposes was $65,000 to $75,000, whereas its value as com- mercial property exceeded $100,000. The Court finds that no bona fide at- tempt was made to sell the property at its residential value, but only at its commercial value. The Court holds that a use variance may not be granted merely on the ground that a variant use will yield a higher return than those permitted by the zoning regulations. Accordingly, it is held that "the proof failed to establish that an unnecessary hardship would re- sult from denial of the variance" under the Otto v Steinhilber rules. Public health, safety and welfare not enough in site plan review. In Matter of Apache Associates v Planning Board of Village of Nyack, the planning board denied petitioner's ap- plication for site plan approval based, among other things, on the finding that "approval of this amended site plan would not be in the best interests or the advancement of the health, safety and general welfare of the public in general and particularly of the residents of the immediate neighborhood". Petitioner appealed a dismissal of his Article 78 proceeding, and the Second Department reverses. The Court holds that "we have re- cently held that a planning board may not base its determination respecting an application for site plan approval solely upon its view of what is beneficial for the public health, safety and general wel- (Continued on page 8) 7 Zoning Decisions... (Continued from page 7) fare. Rather, a planning board must make a determination with reference to the specific design and layout factors enumerated in Village Law, Sec. 7-725 (see Moriarity v Planning Bd. of Vil. of Sloatsburg, Il9 AD 2d 188). Accord- ingly, the determination now under re- view, which was made without any ref- erence to the design and layout factors, must be considered arbitrary and illegal, and is accordingly annulled". CHARLES R MAY LANDSCAPE ARCHITECTS, f~C. 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Allen St. Albany, N.Y. 12208 Page 35 Public Hearing Southold ZBA 5/7/92 Appeal # 4091 Applicant(s): Eugene M. LaColla Location of Property: North Side of Main Road, Arshamomoque County Tax Map No.: 1000-56-4-24 & 19 The Chairman opened the hearing at 9:00 p.m. and read the Notice of Hearing and Application for the record. CHAIRMAN GOEHRINGER: I have a copy of several, actually not copies, but original surveys, the most recent one we have is received April 16, 1992 indicating the entire parcel which is thirty plus (30+) acres and the respected zoning and some elevations within the area or the building area that make part of these twenty-eight (28) acres. And I have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. Is Mr. Cuddy present? How are you sir. Would you like to be heard? MR. CHARLES R. CUDDY: Yes sir. Good evening, I am Charles Cuddy, I represent really the LaColia family. This is a product of an estate. There were seven (7) children of Joseph LaColla who are now living. And four (4) of them are here this evening. They have had this property, which consists of what you said, twenty-eight (28) acres plus there is an additional two (2), one (1) of which is an island called "Paine Island" and there is a small piece, which is right on the edge of Mill Creek. They had this property essentially for the last thirty (30) years. They haven't been able to use it for any particular purpose during that time, and that is within purview of the zoning code. It is zoned at this time, mostly R-80. There is about two (2) acres of land along the Main Road that is zoned M-II. The M-II land, though included on the maps, is really not the subject of our application. The subject of 'our application is approximately four and one-half (4 1/2) acres that surround the M-II land and goes somewhat to the east of the existing M-II zoning. This property that we are talking about then, is essentially that property which is behind "Hollisters" both to the east and west of Hollisters and also behind Greenport Pottery and to the east of Greenport Pottery. And we are asking that a commercial use be applied to that particular locale. CHAIRMAN GOEHRINGER: Just before you continue, Mr. Cuddy, you are referring to the shaded area on map that I received of April 16, 1992. MR. CUDDY: That is correct. The shaded area, but in that shaded area is aiso some M-II Zone and the M-II Zone is marked by the surveyor, by VanTuyl, those three or four (3 or 4) pieces, if you would like me to show them, just bring it up here. Page 36 Public Hearing Southold ZBA 5~7~92 CHAIRMAN GOEHRINGER: The portion is excluded toward the road.. MR. CUDDY: The M-II Zone is the small zone here and here, it is marked that way, it goes right across here. MEMBER VILLA: It is on both sides of the Oliver Property? MR. CUDDY: That is right. CHAIRMAN GOEHRINGER: In other words we are talking M-II this, this, and this. (Pointing to map) MR. CUDDY: That is right. We put that on there because it was all contiguous as one unit. CHAIRMAN GOEHRINGER: I should point out for those persons in the audience who want to see this, we will take a break in the, after Mr. Cuddy's presentation. I will let you look at the map and decipher a little bit and you will be in a better position to make your specific comments. MR. CUDDY: It maybe helpful also, we have the aerial photograph, which shows precisely the area. This is a 1990 aerial photograph. CHAIRMAN GOEHRINGER: Right, thank you Mr. Cuddy. MR. CUDDY: Eugene LaColla, who is here tonight, came to me approximately a year ago and discussed with me the plight of his brothers and sisters with this property. At that time, I went to the Town Open Space Committee, which I guess is now the Town Land Preservation Committee and I met with Mr. Ross who was the Chairman of it. And he greeted enthusiastically the idea that this become Town property. I met with him on a couple of occasions, had a great deal of correspondence with him and came to naught, because apparently for two (2) reasons, and I will put the correspondence in as part of the record. He indicated to me that Fort Corchaug was going to take most of the Town money, and there was probably a very little left. And also, it would be very difficult for us to negotiate with the Town because we had to go through a survey process that would cost us ten thousand 'dollars ($10,000.00). And the Town at that point didn't want to indicate whether it was interested or not. And the Open Space committee wrote and told us that they just discontinued their interest in the property. But I have that correspondence and I am going to make that part of the record and I will hand up a group of things together. I also, point out to the Board that this property has been zoned pretty much the way it is for the past twenty-five to thirty (25 to 30) years, that is, the business part of this property, what is now M-II was business in the 1970's and the 1980's. And I have the map, done by VanTuyl, which shows from '72 to '87, just prior Page 37 Public Hearing Southold ZBA 5/7/92 MR. CUDDY (con't): to the new code that this property had business use on it, that is the part that is Hollister's, the part that is Greenport Pottery, and so on, going back west was business and has continued to be business. CHAIRMAN GOEHRINGER: Wait a minute, this was part of the property and it was sold off at the time? MR. CUDDY: Some part of it was that had been, some of it was sold earlier, some it was sold after Mr. LaColla died. But what I am saying is that all of this property that is adjoining our parcel was business and continues to be business. Now it is M-II, so that wasn't done recently, that was done a long time ago. In 1985, Mrs. Richards obtained a use variance from this Board for her parcel. Her parcel is the one that is the most westerly and is in fact in the M-II Zone. She has a use variance to permit her to use as a storage barn or a shed. That large red structure, which certainly looks like a barn and that continues to the estate. I would also point out to the Board that when the LaCollas' obtained this property from their father, it was appraised, and I have an affidavit of appraisal in 1960. The appraiser at that time said that eighteen (18) acres more or less, and he missed by quite a bit but, indicated that it was worth thirty thousand dollard ($30,000.00). Interpellating that into a twenty-eight (28) acre or thirty (30) acre parcel, it worth approximately forty-five thousand dollars ($45,000.00). Since that time, the LaColla's have spent approximately forty thousand dollars ($40,000.00) in taxes on this property. I have reviewed in the office of the Treasurer, the Suffolk County Treasurer, the tax records. And for the last ten (10) years alone, they spent over twenty-thousand dollars ($20,000.00), for the previous twenty (20) years they spent over twenty thousand dollars ($20,000.00). So in fact, there is an expenditure by them of over forty thousand dollars ($40,000.00) on the property. I would also point out that there is no income produced by this property. There is nothing on it, it is vacant land. Approximately, twenty-one to twenty-two (21 to 22) acres of wetlands, it is our intention to preserve those wetland. We are only asking for approximately an extension of the existing business type zone for four and one-haif (4 1/2) acres of the property. Below that is right along the Main Road. I would like to hand those things up to you. And I would also like to say at this time, that all of the statements I make I affirm under the penaities of perjury and I would hope that everybody who testifies both for and against is sworn in so that there is a complete record of this. CHAIRMAN GOEHRINGER: Thank you sir. MR. CUDDY: If I may, I would just like to point out two (2) other things. To the best of my knowledge, this is an absolutely unique parcel. I don't think that there is any Page 38 Public Hearing Southold ZBA 5/7/92 MR. CUDDY (con't.): other parcel I can find that has zoning, there is no transitional zoning whatsoever. It is either heaving zoning, which is M-II, or it is R-80, and it is also three-quarters (3/4) wetlands and is on the Main Road. In fact, is between railroad tracks on the north and the Main Road on the south. I don't think there is anything right now that has that type of zoning and hasn't been used by the LaCollas' because they haven't found a use for it, but that will be the subject of further testimony. I don't believe by what we are doing, that we are going to change the character of the area because you can see from the photograph, and Mr. Rumph will later testify as planner, that essentially the small incursion and extension of business into that area is not going to change what is already is. ! would like at this time though to have Mary Ann Feavel, who is a broker, testify on our behalf. CHAIRMAN GOEHRINGER: Mrs. Feavel, would you raise your right hand. information you are about to give us is the truth to the best of your ability. MRS. FEAVEL: Yes it is. MARY ANN FEAVEL: First of all, I would like to state that I am a licensed New York State real estate broker. That I have been actively engaged in real estate in the Town of Southold for approximately, it is either fifteen or sixteen (15 or 16) years, I didn't look up the date on my first license. I am currently the owner of A.W. Albertson Real Estate of Southold. And I have spoken to the LaColla family and to Mr. Cuddy, and I have informed them in that in my professional opinion, the current zoning of R-80 on this property and the use allowed for R-80 in the Town of Southold absolutely will not fit this land. Aside from the fact that I personally feel, professionally feel that housing would not fit, a nursery school, a cementary, a riding academy, a goif course will not fit on that particular section of land there, and the way it is zoned and the uses slated for is worth very, very little monetary value to the LaColla family. Thank you. MR. CUDDY: I would also ask Andrew Stype, who is a broker to come forward and testify. CHAIRMAN GOEHRINGER: Again Mr. Stype, raising your right hand. information you are about to give us is the truth to the best of your knowledge. MR. ANDREW STYPE: I will. I am Andy Stype from Stype Realty. I am an SRA appraiser, I had inspected the LaColla property back in 'the end of March of this year. I had found that it had consisted of about twenty-eight (28) acres total property. I would have to say, there is about twenty-two (22) acres that is under marsh land and also pie land. There is about five (5) The The Page 39 Public Hearing Southold ZBA 5/7/92 MR. STYPE (con't.): acres of upland and it is, almost all of the upland is just to the north of Route 25. In the area it is almost all commercial. They are some restaurants in the area, there is also boat marinas, hardly any residential at all. The only residential on Route 25, is there are two buildings there that each have a retail store front and also an apartment. The current actual makeup of the area would have to support the highest and best use, as a commeriai use. And I would also like to point out that if it were any other kind of use, if it had the residential use, there is obviously a hardship involved and a big loss in value. It is in my opinion that if I placed a value only on that five (5) acres of upland, that it would have the value, commercial wise of almost two hundred and eighty thousand dollars ($280,000.00). If that five (5) acres is actually zoned only, just only residential it easily has a value of only sixty thousand dollars ($60,000.00), so there is a big difference of value there definately. So, I would have to say that your highest value is definately going to be business use. Thank you. CHAIRMAN GOEHRINGER: Thank you. MEMBER VILLA: Could I have a question of Andy? CHAIRMAN GOEHRINGER: Yes, sure, Andy, Mr. Villa has a question if you don't mind. MEMBER VILLA: You have got five point four (5.4) acres, well approximately five point four (5.4) acres of that shaded area, that will an R-80 you could get two building plots. And you just said it would be worth sixty thousand dollars ($60,000.00), only thirty thousand'dollars ($30,000.00) for a building plot of two acres with a pond view. MR. STYPE: Yes. The biggest reason why is because of the area buildings are all heavy commercial. It is, you would obviously lose a lot of value, if you have a residence in any area that has a lot of heavy commercial. Also back there, you have a lot of wetlands. There are two smaller cottages in the, back in the rear area, but they haven't been occupied in who knows how many years and in they're in awfully poor condition. Any type of residential area that is in a heavy commerical, easily is going to loose a lot of value. CHAIRMAN GOEHRINGER: Thank you. TAPE CHANGED CHAIRMAN GOEHRINGER: Do you have anybody else of expert testimony that is going to speak, other than the family, because we could take a quick break right now. Is the planner right here? Page 40 Public Hearing Southold ZBA 5/7/92 MR. CUDDY: He can wait, that is okay. CHAIRMAN GOEHRINGER: He can wait, okay. In promising people in the audience, I will furnish them with my copy of my survey, they are welcomed to look at the map. We will take approximately a five (5) minute recess ladies and gentlemen. I offer that as a resolution. MR. CUDDY: I have extra copies. CHAIRMAN GOEHRINGER: Good, could you just lay them down right here, if you would Mr. Cuddy. Would you second that Mr. Doyen. MEMBER VILLA: I did that already. All in favor -AYE. RECESS MR. CUDDY: If we may, we would like to have Eugene LaColla address the Board. CHAIRMAN GOEHRINGER: How do you do sir? Anything you would like to say? Do you solomnly swear that the information you are about to tell us is the truth to the best of your ability. MR. EUGENE LaCOLLA: I do, I will. Since my father's death in 1960, we have paid taxes on this property for approximately thrity-two (32) years. We cannot sell it, we cannot do anything with it. We offered it several times to real estate brokers in the Town of Southold, and we have never had an offer, no one ever came. About two (2) years ago, I also went to a real estate here and they told me, they couldn't do anything with it. And, we feel, my brothers and sisters and I, feel that since there is business property all around us, that it would not change the character of the existing.land if it were reasonable to have a variance for business. CHA!RMAN GOEHRINGER: When was the last time the two houses were utilized, or the trailer and the house? MR. E. LaCOLLA: Over thirty (30) years, about thirty (30) years ago, since my father's death. It is not a house, it is a little cottage, summer cottage really and the other, really was just a conversion of a barn, and it hasn't been used in even before that. I would say, more than thirty (30) years ago. It was family occupied basically. CHAIRMAN GOEHRINGER: And the piece of the property that the family did own was the pottery place there? MR. E. LaCOLLA: Right, my father owned a whole entire plot, Page 41 Public Hearing Southold ZBA 5/7/92 MR. E. LaCOLLA (con't.): including Hollisters and the pottery place. CHAIRMAN GOEHRINGER: Do you recollect when he sold those? MR. LaCOLLA: He deeded, which is now the pottery place, he deeded that residence to my sister, who at that time there was no zoning in the Town of Southold, had a business there, a braided rug business. And we she sold it, the pottery people took it over. So, it has always been business, since she first occupied that place. She not only had a business there, she lived there too. CHAIRMAN GOEHRINGER: When Hollisters was the original tavern. MR. LACOLLA: My father had the tavern. CHAIRMAN GOEHRINGER: Your father had the tavern. MR. LaCOLLA: Yes, my father started that tavern, in the 50's. He rented a, he was to have an assisting building, was renovated and he started the tavern there. CHAIRMAN GOEHRINGER: Okay, when the present owners bought it, okay, did they buy it from the estate or from... MR. LaCOLLA: They bought it from my brother. After my father's death, my father intestate and the remaining brothers and sisters gave him a deed to that property because he had worked with my dad, and my brother in turn, sold it to Hollisters, to Tuminello, I don't know who he is, but I think that is his name. CHAIRMAN GOEHRINGER: Thank you very much. Is there anything else you would like to add for the record? MR. LaCOLLA: I just feel like, as I said, this variance will not change the character of the existing property or the land around there. And we are getting older, you know. Brother and sisters, my oldest sister is seventy-six (76) years of age. And my youngest brother is sixty (60). And we would like benefit from having this land all these year. You know, you inherit something, and we were paying taxes on it, that is not a very good inheritance. CHAIRMAN GOEHRINGER: What is the present tax bill on the property. could ask you the assessment. MR. LaCOLLA: It is approximately twenty-eight hundred dollars ($2,800.00). Is that the price Mr. Cuddy? MR. CUDDY: Three thousand ($3,000.00). Page 42 Public Hearing Southold ZBA 5/7/92 CHAIRMAN GOEHRINGER: Okay, three thousand (3,000). And what do you do, you just pool that between the four (4) of you and that is how you pay the taxes? MR. LaCOLLA: Well, we have had discussions about that, some times we pay as a group, and some times, not as many has chipped in as others, but we have been chipping in for a long, long time. CHAIRMAN GOEHRINGER: I thank you for your comments, if you have any others, please don't hesitate. MEMBER VILLA: Jerry, could I ask a question? Having been a member of the Open Space Committee and the Farmland Committee, I would like to pursue that a little bit. Would the family still be open to acquisition by the Town, through that avenue if possible? I mean, were there ever numbers thrown around or put forth? There was never an appraisal done? MR. CUDDY: I don't know the answer to the question, whether they are still interested, but there was never an appraisal done because the correspondence I put into evidence, I think will show, that we got to a point where we wanted to deal with the Town. We, in fact, put out an offer to the Town and asked us if they would come back and tell us, but they didn't tell us nothing. They would not give us an offer. They would not tell us when, what we could negotiate about. Absolutely nothing. MEMBER VILL: Well, you mentioned something about a survey... MR. CUDDY: We had, we were asked to get a survey. The reason that we didn't get a survey, because the Town wouldn't indicate if they were even interested in the property. The survey was by VanTuyl, who is a conservative surveyor, was ten thousand dollars ($10,000.00). VanTuyl suggested that we not get it until we at least got some indication from the Town that they were interested. We got none. And the letters that I put in evidence will show that. MEMBER VILLA: I can understand the committee asking for a survey, because they wanted to know what they are looking at too. I mean, I heard numbers here from eighteen (18) acres to twenty- eight (28) acres, so there is .... MR. CUDDY: There is no question as to the size of it. I don't think that anybody now, since the fact that twenty-eight (28) acres in unit, that you can see see here, there is about a half (1/2) acre to three-quarters (3/4) of an acre on Paine Island and on the very easterly end, there is another half an acre (1/2 acre), the t0tal would be thirty (30). But, no one was questioning whether it was twenty-eight or thirty (28 or 30) Page 43 Public Hearing Southold ZBA 5/7/92 acres, what they were questioning, or we were questioning would they even be interested, there was no indication they were MR. CUDDY (con't): interested, even though they suggested at first they were very interested. No one came forward, I'm talking about Mr. Ross because he is the one I dealt with, and indicated to us that they were interested enough to even discuss numbers with us. And they, the Land Preservation Committee, came back to us and said they were discontinuing this discussion because they didn't have any money anyway. And that is in the writings that I put in. MEMBER VILLA: Well, there is monies now, so that is why I was just wondering if .... MR. CUDDY: I don't know that to discuss it again , you would have CHAIRMAN GOEHRINGER: I should point out for everybody here, we are not going to conclude this hearing tonight. This hearing will be concluded in the latter part of June, or the early part of July. And, we hope that at that time maybe Mr. Villa will independantly go and speak to either Mr. Ross or members of the Town to see if there is any possibility of a revival. And this is not as an agent or anything else, this is a blind situation here, just to see if anything develops, if there is any interest, if he wants to conceivably, airight, and if it is alright with you. If that is a possibility. My main reason for stating that is that if anyone is not going to be around the latter part of June or the early part of July and would like to make a statement tonight prior to the completion to this hearing tonight, please do so, so that we don~t lose your input. Mr. LaColla we thank you very much and where do we go from here Mr. Cuddy. MR. CUDDY: I would like Mr. Rumph to testify. CHAIRMAN GOEHRINGER: Raising your right hand, the information you are about to give us is the truth to the best of your knowledge. MR. RUMPH: It is. For the record, Mr. Chairman and Members of the Board, my name is Tim Rumph, and also, members of the audience who are interested in this application. My name is Tim Rumph, I am a landscape architect/land planner in principal and design for Design Properties Northeast out of Ronkonkoma. We prepare the visuals that you see in front of you, or you will see in front of you. In taking a look, at the request of the LaColla family at the zoning, and have done a sort of methodical approach to looking at how the parcel could be developed and come up with a conceptual suggestion for how that might be. Charles could you put that up there. What this first plan shows, is kind of a property that appears to be sort of a hodgepodge of information. But what we did is looked at the present zoning of the site, which was earlier indicated as the Page 44 Public Hearing Southold ZBA 5/7/92 MR. RUMPH (con't): M-II portionalso the R-80 portion. You will notice that crossed hatched area is the area that is the representated area on the VanTuyl survey. We also looked at the ponds and the wetland area and decided to draw a hundred foot setback line from those wetlands. We have assumed now, that we are not going to go any closer than the one hundred (100) feet to the wetlands which is in conformance -~rith DEC, Health Dept. and Town wetland regulations, okay. And this is where we are coming up with that crossed hatched area, or what I am going to call "buildable area". You will notice that there is a stream that is located on the westerly, or the easterly portion of the site, that we have located as well. You will see in the conceptional plan that we have done, is we have stayed fifty (50) feet either side of that stream, so we are being conservative in our approach to the planning or the development of the site. And in looking at the site and walking the site and looking at it, it is a very unique piece of property, because of the environmental concerns, the existing marine business industry on the site, the location of the restaurant, the craft shop or the pottery shop that is there, and those, those buildings are all shown on that plan. You will notice that there is a sort of squiggly line that runs through from the easterly to the westerly portion. What we did was look at the FEMA maps, or the flood zone maps and it was shown that the portion to the north of the site is in an A-4 flood zone, which if residential structures or any structures were built in that area, those first floor elevations would have to be at elevation eight (8). And approximately that line is conforming to a five (5) foot contour line. And, so, what we have done is just sort-of just looked at it very quickly in terms of the different criteria for building and planning. And I think we can go to the next conceptual plan. Again, what we, in determining and taking a look at the conditions, we saw three (3) basic areas that could be realistically planned or approached or developed. We will start with the western most portion of it. We looked at a structure, the structures there or a possible business use there that were relate directly to that Marine II business, because they are marine businesses very close associated to it next door, at this point. So we felt that that area could be used for boat storage, boat sales, that sort of thing. As you move east, you see Hollisters down on the road and then you see the cluster of the three (3) buildings, which is the pottery site. Because there is no real access to the main road and no site distance, we felt that a possible professionai or some sort of a low key commerical type of business could happen there, again, on a residential scale. I think, in the ordinance the limited business zoning that the Town of Southold has would be very condusive to this, because of their criteria within that is very similar to the residential criteria. And as you move further east, you will see that little green space that goes all the way down to the Main Road, that is, the center of that is the stream, so that we have allowed the protection of that stream because it is a watershed Page 45 Public Hearing Southold ZBA 5/7/92 MR. RUMPH (con't.):because it is a watershed that goes across the road and goes into the south and also as well, I believe, it goes north, just watching. It depends whether the head rises on one side or the other, but I think it flows back and forth pretty easily. And then there is a knoll that is shown on the eastern corner, that we have shown a cluster of buildings, a very tight cluster of buildings in sort of a, I am going to call it a village green type of setting, and these would be retail, commericai, profession office in nature. Again, this is a conceptual idea of just looking at it, looking at maybe showing the parking and just how in relation of how things would flow together. If the Board has any questions, or anybody has any questions, I would be .... CHAIRMAN GOEHRINGER: The green that you are indicating on this map is basically the keeping of the existing foliage as it stays, as it presently exists. MR. RUMPF: Exactly right. CHAIRMAN GOEHRINGER: The conceptual approach as we have it here does not necessarily mean that you are looking at all three (3) of these sites, is that correct? Or you are offering as an approach .... MR. RUMPF: This is an approach to that entire, what we are calling a "buildable area". We are seeing basically three (3) areas that can actually be developed .... CHAIRMAN GOEHRINGER: Exclusive of the zoning. MR RUMPF: Right. CHAIRMAN GOEHRINGER: Anybody else have any questions on the Board? Bob? MEMBER VILLA: Well, my only thought is that you are asking for an extension of the M-II, how will that impact on the properties across the street, which are all residential? You are saying there is no buffer, but now you are creating a situation where there is no buffer across the road for the residential properties on the south side. MR. RUMPF: I don't believe we are asking for the extension of M-II, I think we are asking for an extension of a commericai or a limited business use. If I may just go back to that, the, in terms of planning and how we look at it or how I look at pieces of property, you have in case of this piece of property, you have an M-II zone, which to me is more of a heavy marine business use. To be adjacent to a residential use, just doesn't seem quite right to me. In other planning and zoning ordinances that I have see, there is a transitional use or zoning between Page 46 Public Hearing Southold ZBA 5/7/92 MR. RUMPF (eon't.): residential and heavy or heavy commercial use. And we are saying and thinking that maybe that limited commerical zoning characteristic that this the Town of Southold has might be appropriate in this condition. And that is what we looked at and that is sort of what we focused our energies on. CHAIRMAN GOEHRINGER: Thank you very much. I don't have any further questions. I would ask you, we are not deeply in need of the aerial, but if we could borrow the other two (2) maps, we will keep them in a well presented spot. We are not going to stick them down a basement somewhere and, we may ask you at the culmination of this hearing, to copy them for us. We are not asking for highlight and the different colors, but, we might ask you to copy them, but we would like to study them. MR. RUMPF: That would be fine. Again these were done, I just want to impress that these were done on a conceptual basis and we made some assumptions based on a walk-through, we really didn't study the actual location of wetlands, those kinds of things. But, we made assumptions, we took, I think we were very conservative in the approach that we took. CHAIRMAN GOEHRINGER: Thank you. Mr. Cuddy. MR. CUDDY: If I can point out two (2) other things to the Board. Th~ property that is wetlands which is approximately twenty-one to twenty-two (21 to 22) acres, it is our intention to preserve as open space. In other words, we will covenant that that will remain that way. Secondly, I would point out that the LaColla family has indicated to me a willingness to cede to the Town a ten (10) foot strip that is on the easternly end of this property, so that the curve there could be softened or at least the lane could be widened. Because there has been some concern as to the traffic pattern in that area, because they have been having accidents there. And in order to avoid that situation, of course if somebody on the other side of the road would offer ten (10), it would give you twenty (20) feet, you could practically put a median in there, but they are willing to offer ten (10) feet. CHAIRMAN GOEHRINGER: Was there any discussion with the Highway Superintendant concerning this? MR. CUDDY: I have not done that. I have discussed it with the family as to whether or not that would be ..... CHAIRMAN GOEHRINGER: Alright, I thank you so much. We come now to the portion of the hearing where we ask if there are any other family members or any other people that are in favor of this application, they would like to speak? Seeing no hands... I am in favor of it as a family member Page 47 Public Hearing Southold ZBA 5/7/92 SECRETARY KOWALSKI: I just need your names, if I could please. MR. JOHN LaCOLLA: My name is John LaColla. CHAIRMAN GOEHRINGER: Sir, next to you. MR. JOSEPH A. LaCOLLA: I am also in favor of this, my name is Joseph A. LaColla. CHAIRMAN GOEHRINGER: Thank you, and the lady in the rear. GENNIEVE RICHARDS: Gennieve Richards. CHAIRMAN GOEHRINGER: Thank you. Is there anybody in the audience that would like to speak against the application. If you don't mind, Mr. Flynn, I will let this gentleman go first. Could you state, could you raise your hand please. The information you are about to give us is the most appropriate, the word I am looking for, the most germane to this particular hearing and it is to the best of your ability. Thank you. MR. DONALD BALLIS: My name is Donald Ballis. I live in a house in Southold Shores, which is on the south side of the highway opposite of this property. And I did want to correct one (1) statement that was made two or three (2 or 3) times, it was stated that there was no residential homes in this area and Southold Shores has a least twenty-five (25) homes, so I think that should be recognized, the fact that there are residential homes in the area. The other thing, I would like to ask the people involved here, I guess they said they talked to the Town at one (1) time in the past, but have they ever approached a nature conservancy. The nature conservancy, I think, as you know, are very much interested in preserving all types of property. They have a couple of a thousand acres over on Shelter Island. And I don't think they have too much in this area, the North Fork, and it seems to me that they might interested in a piece of property like this, and I don't know if they have been approached or not. CHA!RMAN GOEHRINGER: Well~ we will ask them. We thank you sir. Mr. Cuddy. MR. CUDDY: The answer is no, after the experience with the Land Preservation Committee, we cowered. But we spent literally four and one-half, five ( 4 1/2, 5) months back and forth, so we did not instigate .... CHAIRMAN GOEHRINGER: Did you get that answer. MR. BALLIS: Yes. I just wanted to reply that the grant for the natureconservancy, they are very, very interested in preserving tracts of land from small, not only two thousand Page 48 Public Hearing Southold ZBA 5/7/92 MR.' BALLIS (con't.):(2,000), but as small as five or ten (5 or 10) acres. They have very much interest for. CHAIRMAN GOEHRINGER: Thank you, Mr. Flynn. Oh, pardon me, go ahead. MR. LaCOLLA: I would like to say in answer to Mr. Ballis, that if the nature conservative made a reasonable offer to us, we would be willing to preserve the land. But we have to have a reasonable offer. We have been paying taxes on this land for over thirty (30) years. CHAIRMAN GOEHRINGER: But, I think the issue here is, you are welcome to come up Mr. Flynn. I just want to react to this. You are welcome to up, you are welcome to come up. I don't think there was an offer made because at this particular time I am not answering a question for anybody, but correct me if I am wrong. I don't think there was an offer made, is that eorreet. MR. LaCOLLA: I said if. CHAIRMAN GOEHRINGER: There wasn't a offer made.. MR. LaCOLLA: I said if the nature conservancy made an offer reasonable, we would be willing to sell the land. MR. BALLIS: Apparently, there has been no approach made to the nature conservatory. MR. LaCOLLA: Our experience is with the Town of Southold. MR. BALLIS: Well, it would seem to me, it would be really worthwhile looking into, because of the fact that they are interested. And they do have special arrangements. I have gotten literature where they would be, take over property and give the person some sort of an income. They would get title to the property and in return, the person would get some sort of income, maybe for life. There are various kinds of arrangements and I really think it would be worth looking into. CHA!RMAN GOEHRINGER: We can't force an applicant to do that. Ail we can do is suggest it. Okay. Mr. Flynn. Do you solemly swear that the information you are about to give us is the truth to the best of your knowledge sir. I do. MR. F. M. FLYNN: My name is F.M. Flynn and I am resident of Southold Shores. As you and the Board realizes, this is quite a complicated matter. I have done considerable research on it, and I would like to refer to my notes. But the first question I would like to raise is the apparent conflict between the legai notice, the application, I should say among, the legal notice, Page 49 Public Hearin~ $outhold ZBA 5/7~92 MR. FLYNN (con't): the application and the map that has been submitted here. The legal notice says parts of Lots 19, and 24. The application includes the entire lots 19 and 24 and the map excludes Lot 19 and indicates part of Lot 24. I think that is an issue that should be clarified. CHAIRMAN GOEHRINGER: The legal notice that I have Mr. Flynn, says 1000-56-4-24 & 19. MR. FLYNN: I think it says part of it in somewhere in my copy. CHAIRMAN GOEHRINGER: This is the one I have, we can show you the original. Why don't you take my agenda, and we will show you. My question for the attorney representing, are 24 and 19 the entire thirty (30) arcres including the island? MR. CUDDY: Yes. CHAIRMAN GOEHRINGER: Okay. MR. FLYNN: Yes, it says to change use of a portion of subject propery. CHAIRMAN GOEHRINGER: Yes, but it mentions the entire property on the bottom of the legal notice. MR. FLYNN: Yes, that is correct, and I am saying that there is a comity here among the two (2) descriptions, among the lot, on the plan, the application and the legal notice. The application says the entire. SECRETARY KOWALSKI: It is all one (1) lot Mr. Flynn, that is why. MR. FLYNN: No, there are two lots, there is 19 and 24. SECRETARY KOWALSKI: Under zoning, it is one (1) lot though. That is why we advertise it that way. MR. FLYNN: I don't understand but I reserve comment on that and I would like to get to more substance of the issue, if I may. Now, the reason for the appeal, as I understand it, on the part of the applicant that it can't be used as zoned. Historically, it has been used as zoned. And, if then request a variance, my experience with variances is, is that variances are for specific uses. Now, the application actually presents the Board with a variable grab bag, or Chinese menu of uses. It offers you the option of extending the zoning or it offers you to use the property, not for light business in the application, but for General Business "B" uses. It is obvious that what is sought here is a zoning change. You really can't expend the existing uses, because the existing uses are in the ownership of Page 50 Public Hearing Southold ZBA 5/7/92 MR. FLYNN (eon't):others than the applicant. The question here in my mind, is that, this is not the variances I said, but a request for a change of zone. And as such, in my opinion, it is a subterfuge by requesting a variance and it is a common ploy used by o{vners of marginal properties to increase that value of that property, manifold by reason of securing a change of zoning in the guise of a variance. Now, you, Members of the Board may well be familar with the respected legal publishing house of the West Publishing Company. And they have a text now called "Land Use" and I would like to quote from it, not at great length, but I think it is very germane, so the situation that we have here at hand. The text discusses at some length that the objections to use variances are sometimes considered spot zoning and they mention that many venues do not permit use variances because of abuse and they finally say, in this regard, that the burden of proof is on the applicant. Now, the exact quote to which I refer is, "if every Board of Adjustment and every Court were more aware of these factors and applied them more vigorously, excuse me, rigorously in place of bending them to meet the economic aims of developers and land owners, use variances would no longer constitute the synonym for evasion of zoning restrictions." As the matter stands today, zoning is as much characterized by the variances from it as by adherence to it. Even were this a legitimate application for a variance, as you gentlemen well know, but the members of the audience may not, the Board's powers are limited and delineated by Section 100, I believe it is 270B of the Town Code. In which the Board is limited to varying the strict letter of the Ordinance, provided the spirit of the Ordinance is preserved and the safety and welfare of the public considered. Now, it is hardly varying the strict letter of the law, or the regulation, to rezone approximately five (5) acres and as a result of this variance to provide contiguous nine plus (9+) acres of business zoning in this area. Now the spirit of the Ordinance, spirit obviously is a synonym for intent, and it is implicit in the ordinance itself, in the comprehensive plan, and in policy statements by members of the Zoning authorities in the Town. And among these policy statements that have been brooded about, is that the Town is opposed to strip zoning and that business uses should, future business uses, should be confined to hamlet areas. Now, with respect to strip zoning, were you to extend this zoning, approximately six hundred (600) feet to the east, as this application provides for, you would then have strip zoning virtually contiguous from Budd's Pond to Village of Greenport line. Now, as to public safety, I would like to reserve my comments to somewhat later. With respect to granting a variance, where is my opinion, this application is not only in the wrong church, but the wrong pew, were you to grant a variance, you would be avoiding the requirement that a change of zone would dictate, namely site review of · this site. Now, zoning is obviously a legislative enactment. I don't wish to appear to be lecturing the Board, but this is generally for Page 51 Public Hearing Southold ZBA 5/7/92 MR. FLYNN (con't.): the benefit of the audience. And as such, it is the prerogative of the Town Board. Now, it was more or less admitted here that this property has been zoned as it is currently for some thirty-seven (37) years, through the submission or formulation of two (2) Master Plans and during the teneres of numerous Town Boards. The very diverse nature of the uses cited in the application and the sheer size of the property involved dictates an application for a change of zone. Now, even were, and I don't conceive this in my opinion, this property a suitable subject for a variance, you cannot avoid the requirements of the law of truth or for proof. Now, the applicant states that the ordinance creates practical difficulties or hardships. He maintains that it cannot be used residentially. We have heard a contradiction of that already this evening. Also, we are aware, that in the past it has been used residentially, and with respect to the taxes that are being paid on the property it might behoove someone that if it isn't still being used residentially, that they remove the assessment for residential improve- ments that are still on the property. Now, if it were used, it can be sold. It is not a question and it is not the municipal- ity's concern at what price it can be sold. It is necessary for the applicant to produce dollars and cents proof that the property has no utility and hence no value as zoned. Now, it is necessary to fully understand this problem, to know something of the historical background of the property. You have had indications of portions of it. This property was acquired by Mr. Joseph A. LaColla in 1946. The purchase price, at that time, was fifty-five hundred dollars ($5,500.00). Now, I had estimated the property to be thirty-three (33) acres of overall area at the time of the purchase. It appears now that might even had been larger, but calculated at thirty-three (33) acres that indicates a purchase price of one hundred and sixty-five dollars ($165.00) per acre. The historical division of the property started subsequent to the purchase obviously, and there was no zoning in the Town until 1957, the interim of eleven (11) years. In the interim period, in that interim period, the property was utilized by various members of the family. It has been carved up into these small haphazard, irregular parcels, by the family. So, if there are practical difficulties, they had the option of using the entire property. They never did, they carved it up. So they created the practical difficulties. I, also, might mention, and this is a key issue with respect to the acquisition cost of the property. As you may know, I have been involved with real estate for over forty (40) years, and I have appraised numerous parcels in the interim. And a purchase price of a parcel is generally dictated by its utility. And when you pay a low price, or a relatively low price for a property, in this instance, it's indicative of the fact that there are practical difficulties on the property at the time of purchase. When you remove these areas, as it is contemplated in this plan, from consideration and confine it to a smaller area, then the practical difficulties and utilization of the property are Page 52 Public Hearing Southold ZBA 5/7/92 MR. FLYNN (con't.): obviously self-created. Now, I have with me a copy, and I shall present it to the Board, of an agreement among the members of the LaColia family in 1960, in was in September of 1960, and subsequent to ............ that I believe in January of 1960. And in that agreement, they apportioned this property, mention was made at the tavern property being conveyed to one of the sons I believe, but the property was apportioned generally among the others, including indications that portions of it were intended for residential use. Now, the claim is also made, that the parcel is unique because of configuration and location. submit, that all real estate is unique in the sense of location and configuration and that in this instance, the location and configuration was discounted by the purchase price. Statement is aiso made that the property is unique and cannot earn a return and has no value, and that it is equivalent of confiscation. Well, as I said, we have had evidence to the contrary to the contrary by the applicant's own expert this evening. Where the rough vaiue, and certainly not the dollars and cents value that is required by law. It was indicated that the residential portion of this property had a value of approximately sixty thousand dollars ($60,000.00). Applicant also claims, that the variance is in the spirit of the ordinance and does not change the district. Or were the application is being made is in an R-80 district. And obviously, what is intended here changes the use of an R-80 district. Now, the northeasterly portion of the property, and there has been mention of this, is a heavily wooded parcel fronting on a pond and in a critical environmental area. Raymond, Parrish, Pine, Weaber, when they prepared the Master Plan, put this property, classified this property as being best utilized as open space. Now, obviously, you can't ask a man to dedicate his property to open space without confiscation, but based upon the characteristics of the property, they zoned it R-80 and that R-80 has stood to date. It may also be of interest to the Board, and I don't know whether they are aware of this, that the Long Island Regional Planning Board in its comprehensive plan for the Town of Southold, for the period of 1990 to 2010 also classified that easterly wooded pie area of the property as open space with the intention of ultimate acquisition by the County of Suffolk. Now, as I mentioned, to extend this property six hundred (600) feet more or less easterly, or north easterly, would constitute an extention of strip zoning, which is against the stated intensions of the Planning authorities of this Town. Now, finally, the Board's primary function and primary interest should be in the public safety. Now, this property is located on the arc of a curve and constitutes an obvious traffic safety hazard. By reason of the arc of the curve, the Line of sight for drivers is reduced. There is only a two (2) lane State Highway· The Town Highway Department obviously, would have nothing to do with this highway, it is only a two (2) lane highway. When you attempt, and I am saying this from personal experience, when you attempt to make a turn across that highway Page §3 Public Hearing Southold ZBA §/7/92 MR. FLYNN (con't.): in the face of oncoming traffic and have to come to a halt, or to a relatively slow speed to attempt to make that turn, you are in imminent danger of being rear-ended. And that has happened to me on several occasions. The existing businesses there have nine (9) driveways intersecting the northerly side of Route 25. Opposite them... TAPED TURNED OVER MR. FLYNN (con't.): .... coming out from Southold Shores, and were you to expend this property easterly, you would then have the further complication and hazard of additional traffic emanating from Tarpen Drive. Another complication to the traffic situation there, is the fact that to the east, you have the highway overpass over the Long Island Railroad, with a relatively steep change of grade, which also reduces the line of site, particularly hazardous in the summertime, with the additional traffic that is generated on Route 25, and you have moving the additional traffic which will. emanate from Sage Blvd. from the marina, located on Sage Blvd. Overall, you have to figure the cummaltive effect of this proposition, and it would mean, at this hazardous and sensitive environmentally sensitive location, you would be creating nine (9) acres or more of business zoning, which has grown up in a haphazard, unplanned fashion, and were a variance granted, would not be subject to review by the Planning Board. There is, this constitutes in my mind, a very serious question of jurisdiction and support for the fact, were it needed, that this constitutes an application for a change of zoning. CHAIRMAN GOEHRINGER: Can I just ask a question? MR. FLYNN: Yes, surely. I am coming to the end, by the way. CHAIRMAN GOEHRINGER: How do you come to the realization that they wouldn't get site plan approval? MR. FLYNN: Well, I made inquiries of the Planning Board. And they say a variance is not their prerogative. Therefore, they don't review it, if it is granted as a variance. If I am wrong, I was misinformed. CHAIRMAN GOEHRINGER: Okay, go ahead. MR. FLYNN: The other question has been raised preferably here to, is the effect on the residents who do exist by the way, are fifty (50) somewhat lots in the map of Southold Shores, the effect on their health, safety, welfare, the value of their properties. And also, the fact that as the zoning procedures go, it is a situation that grows like topsy. If you grant it on one side of the road, the next application is on the other side of the road. So for all these reasons, I am opposed to this Page 54 Public Hearing Southold ZBA 5/7/92 MR. FLYNN (con't.): even being considered as subject to a variance. Now, with respect to some of the remarks that were made here this evening, I believe I heard correctly, that the residential portion of this property, estimated, would have a value of, in the neighborhood of sixty thousand dollars ($60,000.00) give or take. Now, I would point out, that it is not the municipality's position to weigh the relative costs, or the relative value of property, if they rezone it, or variance were granted. And as zoned, they are not the partners of the applicant and to meet the criteria for a variance you have to prove that the property has no value. I, again submit that there are numerous standards of proof that have to be met for a variance, and germane to this type of situation, you have to submit dollars and cents proof that the property is in all intense purposes has been confiscated and has no value. Now, we have proof to the contrary tonight. I would suggest that you reject this application and suggest that the applicant go where he belongs, namely before the Town Board and apply for a change of zoning. Thank you. I have some written material here that I would like to present to the Board. Thank you. CHAIRMAN GOEHRINGER: At the request of one of the Board members, we would like to again take a three (3) minute break, so to speak. I will offer it as a resolution. MEMBER DINIZIO: Second. All in favor - AYE. CHAIRMAN GOEHRINGER: .... And I do apologize. I offer a motion to reconvene please MEMBER DINIZIO: Second. All in favor - AYE. CHAIRMAN GOEHRINGER: Mr. Cuddy, where do we go from here? MR. CUDDY: Maybe not everyone is through testifying. I don't know if there is opposition .... I would certainly like to make a short rebuttal statement. CHAIRMAN GOEHRINGER: Certainly. I think you should at this point, that is the reason why I asked the question. MR. CUDDY: The members of the LaColla famliy have asked me to say factually that virtually everything that Mr. Flynn has indicated that they would state contrary to. From one end of his talk to the other. But, I as a lawyer, am much more concerned about the law that he announced to the Board that I have already got it and would suggest to him that he do one or two (1 or 2) things. The ]aw set forth at least three (3) Page 55 Public Hearing Southold ZBA 5/7/92 MR. CUDDY (con't.): available volumes in the local library--one is called Rapcoff, another is called Anderson on zoning, another is New York Jurisprudence. Land use law and land use variances are not practical difficulties. Land use variances are basicaliy from Otto vs. Steinhibler, which this Board knows about. And you have three criteria--one has to do with no reasonable return, one has to do with uniqueness, and the other has to do with changing the essential character of the area. And if Mr. Flynn is going to come and talk for a half an hour, I think, that he should talk to what the law really is, and I don't think it is appropriate, in these circumstances, to talk about the law. I think you are interested in the facts. The facts, as my clients have testified to and what the various witnesses have testified to. Mr. Flynn, it is not a personal question, but, it seems to me that if you are going to talk about this property, you should address ourselves to what we are realiy discussing, and we are discussing four and one-half (4 1/2) acres, we are discussing an extension of an existing type of zone, it is a business zone. It has been there for years, that was the whole point of pointing it out that is has been there for twenty-five to thirty (25 to 30) years. And we are asking simply, that it be extended on a four and one-half (4 1/2) acre piece. I don't want to go in, as I said in depth, to an apologia from my clients, but I believe we have an appropriate application. I would ask this Board to grant this application, and I understand that there is serious considerations that the Board has as far as possible offers to the Land Preservation Committee, somebody brought up a Nature Conservaey, but we will explore those things. But I would ask the Board, if it is going to adjourn it, to adjourn it to its very next meeting in June, not at the end, but in the beginning hopefully, and ask the Board to reconsider at that time. We will be available, all of my clients for any questions that you have, and we will be happy to explore any other considerations that you would like us to do. CHAIRMAN GOEHRINGER: Well, this is what I need from you. The only reason why I had suggested the last portion of the month of June, was because we have some serious problems that we are dealing with .... What I need from you Mr. Cuddy is, and appears to me, from looking at the property, that this five (5) foot contour line, which you are referring to as the stream, is really a deviation between the two (2) parcels, it really is. What I need from you is either the center line of the stream or beginning at the five (5) foot contour line, airight, assuming that this is an area that you wouldn't be touching anyway, as mentioned by the Planner, all the way up in to this particular portion right here. I need a calculation of acreage, based upon the shaded area to the west. And then I need a calucation again from the outside of the five (5) contour area, back up to again approximately this portion, alright, in calculations in this area. And that is what I need to continue with the hearing. As for the actual time, that we will reconvene the hearing, we will Page 56 Public Hearing Southold ZBA 5/7/92 CHAIRMAN GOEHRINGER (eon't): discuss it, I will recess it, without a date, and we will discuss it after the hearing here, and we will discussing it when we set up the next hearing, exactly. If we can fit it on, we will fit it on, if we can't fit it on, I assure you I will try not to make it go into July, okay. The problem is that we have some people writing letters to the newspaper. You have heard of the Arthur Carlson hearing, we must finish that hearing, on or about the first week of June, and that is the problem. Also, I want to be perfectly honest with everybody, including the LaColla family, once we go beyond eleven o'clock (11:00 p.m.) at night, there is a great degree of .... It is like the Lord diminishing returns, right. And it is not a consciencesituation, it is not anything that has to do with the public, airight. As I told the people in the beginning, I teach a three (3) hour at State University and really it becomes a real problem and then you sit here for more then four (4) hours. And, I just want you to be aware of that, ! am not, there is no other way to tell you. And so, even if we stuffed it on and there may be elements that we might loose in dealing with that aspect of it. I just want you to be aware of that. It is nothing personal to anyone here or anything of that nature. But, actually, it is a benefit to have it start about the time it started tonight, to be honest. And we also apologize for putting it as the last hearing, but as you can see, the other hearings, apart from the sateHte dish, were not terribly'difficult, hearings. Okay, thank you. Mr. Flynn. MR. FLYNN:I would like to respond to what I consider a personal Taft. My, I am quite familar with Hardon Rapcoff's text , as a matter of fact, I worked rather closely with Mr. Rapcoff on several zoning cases. I'm also familar with Anderson on zoning and had that text plus many other text, extensive texts in my office. The question of practical difficulties is recited in the application. It was not x-ed out, it said unique and practical difficulties. And finally, having been involved in this area for some forty (40) years on and off and testifying, I know that the crucial thing in justifying a variance, is that there is no adequate return to the property, and in effect, the property is valueless. We have had testimony this evening to the contrary. Thank you. CHAIRMAN GOEHRINGER: Okay, yes, Mr. LaColla: MR. LaCOLLA: Do I have to swear in? CHAIRMAN GOEHRINGER: No, you just have to state your name. MR. JOHN LaCOLLA: My name is John LaColla. I just want to say Mr. Flynn, I didn't intend to speak tonight. But you brought up several things that, I don't think that our attorney did say anything to you personally, I think he is just speaking Page 57 Public Hearing Southold ZBA 5/7/92 MR. LaCOLLA (eon't): about the law. You seem to know, what our innermost thoughts were. In 1960, as far as I know, there was no agreement between my brothers and my sisters and myself, and you may have something there, that maybe somebody said something off the top of their head, but no way. Also, the fact that, you referred to the fact that my father bought this for five thousand dollars ($5,000.00). Whatever it was, I didn't even know that myself. That was 1946, I don't know how long you have been in your home, but I am sure it is worth a lot more right now, then when you bought it. And I would say, that what we are looking for here is not a conflict, and not, we are looking to ameliorate this thing from a point of view, from a reasonable point of view and we are asking for relief. That is all we are asking for. If you had, had somewhere there that was agressive and didn't care about the environment, my father kept that thing in a pristine state. We have to, and I think it has been to the benefit of the Town of Southold, I think that what our attorney stated about us signing a covenant of leaving a major, major portion of that twenty-one or twenty-two (21 or 22) acres in perpetually in wetlands, it is open space, I think it is a sign of good faith. Other than that, we have made no attempt to develop that, and alps we're looking at, as we get older, is a reasonable solution to have some way of getting out of this thing graciously, and with some return to us for the investments we have made over the past thirty-two (32) years. Thank you. CHAIRMAN GOEHRINGER: Thank you sir. MR. FLYNN: I have just a quick rejoinment, because it was addressed to me. You have in your possession, the agreement, a copy of the agreement that was made in 1960, so I don't have to testify to that again.- It is self-explanatory. CHAIRMAN GOEHRINGER: Well, that is basically the reason for reconvelling the hearing, because of what I asked for and allowing these people to look over these documents, rather than running out and reading them, coming back in, and reacting to them, that doesn't work, okay. We have seen that in the past, and that is the purpose of it. The only other question I have before closing, we would like to thank you all for being here, I just wanted to ask Mr. Cuddy. Mr. Cuddy .... There are a few more people here who would wanted to object to, you didn't ask anybody else. CHAIRMAN GOEHRINGER: I said, we would reconvene the hearing, you haven't given me a chance to say that, okay. Because what happens is I forget to say these things. I am getting older, okay. As the moments pass. I hope the Town Board reads that, when they read this transcript. Mr. Cuddy, was there ever an application for any change of zone after the 1989 Master Plan Page 58 Public Hearing Southold ZBA 5/7/92 CHAIRMAN GOEHRINGER (eon't): update on this parcel? MR. CUDDY: Not to the best of my knowledge. CHAIRMAN GOEHRINGER: Okay, and you have always been the attorney, or you have recently been the attorney for the LaColla family. MR. CUDDY: In recent time, yes. MEMBER DINIZIO: Can I ask a question? CHAIRMAN GOEHRINGER: Yes. MEMBER DINIZIO: My main concern is, in front of me on the application is a copy of "Planning News" which states Otto vs. Steinhibler decision and the first question that, you know that for use variances, you know, is the land in question can it not yield a reasonable return. And in all fairness, I haven't heard anybody tell me what a reasonable return on this piece of property is. You know, I have heard of value of sixty thousand dollars ($60,000.00) okay, I don't know how you relate that to a reasonable return. Are you considering the properties surrounding it and what they would yield, or are you considering, I don't know how you base that as being reasonable or unreasonable. It is very unclear to me and it is important for me because that first question that you have to, you can't get by, you can't get a use variance without answering that question first. How that brings you to before this Board as opposed to before the Town Board. Okay, I think you need to, the answer to that q_uestion has to be answered, in my mind some what before you even go any further, as I see it. It is not clear to me, okay, and in all fairness to you Mr. Cuddy, I would like to give you the opportunity to make that clear to me. What is a reasonable return on this piece of property, I have absolutely no idea. There is a lot of wet lands on there, but I can't place a value on that. MR. CUDDY: Do you want me to address it now or later. MEMBER DINIZIO: Well, that is up to you, I mean, it is going to go on again, but it is something to keep in your mind. MR. CUDDY: Fine, I yes. MEMBER DINIZIO: Okay, thank you. CHAIRMAN GOEHRINGER: It is my understanding that there are other people here that would like to address us concerning this particular application either pro or con. Yes maam. Would you state your name for the record, after I ask you to raise your right hand. Do you solemnly swear that the information you are Page 59 Public Hearing Southold ZBA 5/7/92 CHAIRMAN GOEHRINGER (con't): about to tell us is the truth to the best of your knowledge. Thank you. MS. LINDA LEVY: My name is Linda Levy and I am the Southold coordinator for the North Fork Environmental Council. SECRETARY KOWALSKI: I didn't get your name, could you... MS. LEVY: Linda Levy. Most of the points that Mr. Flynn raised are points that we would agree with and I do have a written statement here, in the interest of time, I am not going to go over all of the points that we would like to make because there are some of those that Mr. Flynn made, and I will give you a copy of my written remarks. One thing that I would like to reiterate, however, is that from the NFEC's point of view, this issue of whether or not this is a use variance or in fact a change of zone, is a major factor. Because, we believe that you can't get away from the philosophy of what is planning all about and what is purpose of the zoning codes and why do we have the different agenoies and the different bodies of government here that we do have. And, unfortunately, if you look back over the last few decades in New York State, you read frequently that the ZBA's all over the State of New York and the use of the land use variance are frequently accused of being tools for spot ~oning, gimmicks to give out favors, that kind of language. I think that from the point of view of the NFEC, we believe that the Southold ZBA should be able to say, we are not involved in that kind of interaction. And this type of request for a land use variance, when in fact, it is a change of zone, there is no specific use being requested here. In the application that I have seen a copy of, it says, that the applicant requests that business use as in the General Business district be permitted on the upland acreage, limited to wholesale businesses, warehouses, contractors' business, office buildings, repair shops and retail sales. That is not asking for use variance, that is a change in zone. And, I also find it odd, that I am looking at this document that we got from the Town here, it says right here General Business "B" and tonight I come here and sit here and hear them talking about that they are asking for limited business well, that is not what this says and it is not clear to me how we are suppose to be responding to an application for a land use variance. When we get here, they are not even talking about the same request that I see written here. But, beyond that, our concern reaily is that we don't believe that this should be before ZBA. We reaily believe that this is something that should be coming before the Town Board as a request for a zone change and you will see in my written remarks that we do also feel that if you were going to look at it as a land use variance that the three (3) tests are not, have not been met, the three (3) proofs have not been met at this point, but as I said, I am not going to go into that in detail, because I think Mr. Flynn covered that pretty completely already. So I am just going to .... Page 60 Public Hearing Southold ZBA 5/7/92 CHAIRMAN GOEHRINGER: Thank you Ms. Levy. Alright, is there anybody else? You want to say something? Hold on Mrs. Flynn, go ahead Mr. Cuddy. MR. CUDDY: I must respond to what people are representing is the law. I am troubled, really troubled, by people saying to you this is how you go about doing the land use variance. I have never done a land use variance where there has not been an objection raised by both Ms. Levy and Mr. Flynn that it is a change of zone. That is simply a ploy to use one of his words. Obviously, you are transferring a zoning use to another district, there is no question about that. But, land use variances are a type of variance that is permitted under certain conditions, they are not changes of zone. And I think that it is wrong to talk about it in those terms. The land use variance that we are here tonight for, I think, emphatically stated what it is. I would have to disagree that we have to say, and I think a reading of any of the texts will tell these people the same thing, you do not have to say exactly what you are going to do with the land that is being changed. The big question is the question that was raised by the Board member. Once you get past the question of whether you have reasonable or no reasonable return from the land, then it is really up to the Board. It is not necessarily up to the applicant to say what is going to be done with that land. You might find, for instance, that it should be industrial land, but that is the Board's determination. We made a projec- tion and Mr. Rumpf testified. That's all he was doing, was making a projected use, that's the use we think is appropriate. But, that is not part of land use variances. The land use variance can be dictated ultimately by the Zoning Board. It is not dictated by the applicant, and I think it is wrong to go on and on about that, because it is just a misuse of the law. CHAIRMAN GOEHRINGER: Thank you. Mrs. Flynn. You are going to be relatively quick, right. Again raising your right hand, the information you are about to give us is the truth to the best of your knowledge. MRS. FLYNN: Of course, yes. I am Inga Flynn, I am resident of Southold Shores and a local real estate broker. I am broker for twenty-two (22) years and for the past ten (10) years, I am actively involved in real estate around here. Before I main- tained my own office in commercial and industrial real estate, I also was very active in assisting in appraisal work and successfully passed my SRA courses in residential and commercial real estate. And in my qualifications I can say that I was the vice-president of the Long Island Real Estate Board, I served as director for the New York State Association of I graduated from the real estate institute and my life is real estate, really. Last year, I attended the Planning conference and also Listened to our director, regional director of planning for Suffolk County and also was then a member of the Sub Page 61 Public Hearing Southold ZBA 5/7/92 MRS. FLYNN (con't): Committee of Planning commercial real estate here in the Town of Southold, which was a sub committee in the High School. And the results of the committee was that commercial real estate and retail real estate should be in hamlet and we should not have any more strip zoning along 25 nor 48. And that was the all over consent I think of at least ninety-five percent (95%) of the attendance of this sub committee and I guess the head of this sub committee, which was Mr. Gaggiano, then reported that to, I think, to the Town Planning. As to the need of strip zoning or more shopping centers, I would like to advise the committee here and the Board that we have quite a lot of vacancies of retail space in the Village of Greenport, as you know. We just recently have foreclosures on Route 48, where the retail space could not be filled and we have vacancies on Route 48. And, as to the value of the property, and I, again, Mr. Cuddy, I have to disagree with you, I think a continuation of something, when you create something new, I would think it is a rezoning and an extension. You are looking for extension or a continuation of a zoning which exists. So, in my opinion, you are creating a new zoning. I would Hke to go to the map and point something out. I have and assisted an appraisers like on Grumman and and very large appraisers on Long Island. And, as an appraiser, if you do go to an area and you look for values, you don't look only to the subject property, you most certainly look onto the all over effect. This property here, which is now zoned R-80, is opposite property which is zoned R-40 because and R-80. So, this property conforms now with this and surrounding zoning and there should be no shopping center here. And, if you want my opinion, he is looking for a continuation of the zoning, one cannot grant one man profit on this property and evaluate the property of all these people. Thank you. CHAIRMAN GOEHRINGER: Thank you. I must ask the remaining people who are in the audience, this is an unbelieveable situation tonight, but I do have a gentleman who wants to address the Board again, outside, so I am going to ask everybody if we could complete the hearing for the evening at this point, we will be back to see you, hopefully, you will be back to see us, sometime in the middle to the latter portion of June. We wish you safe home and, we thank you for your courtesy tonight. And this is both pro and con, and we thank Mr. Cuddy for his presentation. Is there anything Mr. Cuddy that you would like to say? No. Hearing no further comments I make a motion recessing the hearing without a date. MEMBER VILLA: Second. All in favor -AYE. End of hearing. by i ~J~-~-~ ~ (Transc~ibefl by tapes recorded 5/7/92.) To: Poard n6 Apparels, T~,wn oF [t~.~l,h~]d Frown : F. H. F]ynn Re: Objeet[oqs to Appeal Mo. h091. Propo:n,~d variat~ee, H. La Co]la et al (~Hmt lOrm 'lee. qF, ~]k. li Lots Date: Hay 7, lqq2 ,.Y I 4 l!tt2 ~O'UTNOLD TOWN PLANNING BOARD following, comber, ts ;ncorpornt,, my o>joct,ions to th~ ref'eroqq,',,1 application for n vnr[ane,~(q/. The ].e~a] netire daem n(~t lnql~ olo~r tn t,}m public the ~enpp and impact of the propoq~! vr~rinnr~e(s). It desoribea, nonsnaeif:e:~lly, a proposed o}lan~e from r~identi~l ir> r)onre~irlentia] u~. A~ ~ r~n~lt would permit, a nJluat, inn where ovor si.n,~ ae~'os of ]ntermive CoTmq~'*'zi;~l Location or thl;; Pr~ Propert[ is identified on thc between this (]o~cr'ip;irm nn,t tl)e map prcpar'~d by R. Vnn TUVI~ tq9~ m~ap ,x(,lu 1., I,. ~ , and d~,ted ~areh P6, ' .~ lq I,oL approximately Pa meres in area. Of this nron it appears rs.il+/- aoro~ .o1,, ntt ln].ly t,h,~ ~ub]eek of f, hi~ applicat,]nn. Reason for' Appeal Appl:ier~ntyt, pten property onnrlot be lined as zoned. Property is act lnl]y in tw<~ zoning iatrJets and has a history of being! u~ed a~ 7, oned. Rathor than socking a v;~,':iance ¢ora specific use, the applieani, prqamttn to the Roard a ftrnb i)n~, or Chino~e menu, of requests ran~nF from the extermJot~ of the e:¢istin~ uses to a serieg or uses permitted tn a General Bnsirmms (i~) district. of others than Lhe appl icqnl;/ nnd cannot be extended. Tile exeepi:ion to this would bo tho pregnant roairlorltial llSe Off northerly portion~ of the applicant's property. The highway frontage is in an tilt district and its extension Jnt¢~ a residential district, would require a rezonina. with reylpeet tn the applic~ant'~ ~lternative, a verier/cc must be for a specific USe. Tn~t:o~d, !ho applicant seeks his ehoicq by obtaining a nh,mae or zoning. Further, granting, ~ variance to the applicant would enable him to evade the site plan review mandated for a busines~ zoned parco]. A rezoning would dictate such a review for the 5.11 acres In qtm~tion. As a result of a variance there would be over nine acres of unplanned t>~jness use at this location. ' Implicit in the devious '4or~in~ of the applicant's state, ed reas~m~ in an attempt' to obtain a rezor]]nq hv subterfu~le: a rezonin~ in the guise of seeking a variance. This is a common ploy use l by o~mers attempting to secure a manifold increase in the value of ot~]crwise ~ar~Jnal propert~ .... The highly respected ]eqa] puhli.qhJnq house, the West Company, in its publication ~I.nnd qse, puts the entire variances into its true persp~ctlve. Pub]ishinl% problem After discussinq that u,ne vr~riauees are sometimes consi, dered spot zoning, that some venl]es do not permit use var ancest and that the burden of proof ia on the applicant, the text goes to state: "If every board of adjustr,ent a~d every court were more aware of these factors and applied them more rigorously in place of bending them to men'the m~onr)mic qima OF developers mhd lnndown~'r:, use variances wou]d no longer eor}zti ~1%~ a synonym for evasiol] of zoning restrictions. As matt~'s st~.,d today, zonina ~s as much characterized by the variances from it an by the adherence to it." Based on the applicant'r~ own statements, this is obviously an ati,ompt to secure a chan~e of zoning. Zoning constitutes a leaislative enactment by the Town Board in accordance w~th a I~aster, or Comprehensive, Plan. Among legal precedents s~pportina this cor, tention are: "Moreover under some charter or statutory provisions, a zoning c~hange or amendment may not permit a uae in any area which is contrary to the ~eneral land use established for such an area by a masterplan." (Corpus Juris Secundum 101A CJS Zonln5 and Land Planning Sec. 73) "However, the courts in some ca~es have heir1 or implied that once a zoning authority has established a use classification for a particular area, there is no presumption that ~n amendment or grant of a special permit or a variance ehangin~ the use classification of a part of that area ia in conformity with a comprehensive plan and the burden of proving such conformity is with the zoning authority." (American Jurisprudence, 2nd. Ed., Sec. 71) With respect to the grantinc of vr~riances, the powers of the Board of Appeals are defin<~and clrcumscribe~i by Section 100- 271n of the Town Code. The acer4 may vary the strict letter of the zoning regulation.~ provided that the spirit of the or<]inance is observed and that public safety nnd welfare are secured. The power to rezoue is a legislative perogative and beyond the purview of the Board of Appeals. Even were this a legit~nlnt~npF~] i~tiou For a variance, the limitations on the Board'~ po!~eps .'~u]d st~]l prevail. To alter the zoning o~ %.4+/- ~ere~ in no ,q~re alteration oF the strict letter of the law. ~,g to the spirit of t,h~ r'e~ulati~us, spirit .is anolher word for intent. Uowew~r, Jt is not necessary to interpret ~ther sp~rlt ~r intent when both ar~ ~nlmrent Jn the c>rdirmr;~w, itself' '~r~(! ~n tho co,qprchens~ve p!~n which plan has aJ~o been exppo~od ~n lbo policy gtater~l~t~t~ of zonJn/* auti~oritjes. Among thea~ ~r'e the rejeeti(m oF strip zoning and the intent tlmt business usaa ba confined to ham]et areas. It is also the clear icl.ecl or !he regulations that the deve]eprq,,n~ of busirleSS pr'opm-ties, partic~llar]y those of the size propo~o(1, be subject to s~t~ rev!~w hy the Plannin~ Po~rd. Application for a variance is a tr'ar~sparenh attempt to circumven~ t,h~s require,~oat. The qlJest, Jon ~? cor~sid~:~I,]~n ~(' t;h~ pubJic's safety and we]Far~ will be discussed later. It is clear that the ot:,j~etiw~ of the applicant, particularly when the diverse natur,~ of' the uses proposed and tho size nf the property are considered, in to obtain a ehan~e ~f zoninr, It is equally e]ear that mmh an object,ye can only be attairmd by application to the Town Board. the applicant would still 1of Faced with ~leeting the standards of proof required by The applicant claims that strict application of the ordinance would produce prnctica] ~ difficulties or unnec~s~ary hardship. lie maintains that the parcel can,et be so]d for residentia. 1 use as zoned. If it can be used for residential use Jt has value and can be sold. It Js not the obl].~ation oF the municJp:~li.~v to maximize the owner's prortt:~. Two of the abuttJ.~]~ pap~cl r~ Fp~nt in~ on t,}lo hif~}lway arc ll~ed for residential purpos~:;, tlop~ 1:o the point, there are two residential improve~,~ents ,,n thc ~{ 30 zoned area of the property. Additionally, an agreement ~monF~ the d~strihutees of domeph A. La Cella, dated Septc,nbop 10, 196~ and recorded in LJber 4884 Cp. 439, clearly dem~mstral~s an attompt to further $.bdJvide the prop,~rty for resideut~:~1 uae. A copy of this arqroom~nt is attae}md. For' an understanding of th,? ~i~m~ttion '~.~ith respect, t~ tho claim of ppaetiea] difficulties, the h~story of thc property must be understood. The entire property of 3q+/- ceres was acqui~ecl by ,JoF~eph A. La Co]la ir] 19;16 bydeed /'~,eorded itl Libar 2qqO Cp.q67. The consideration was ~5,qo0.nr), or :~r~proxjmately ~16q.(lO pot acre. The importance of this transaction ia that the low unit price paid took cognizance of cortairl practica] difficulties and unique features found on certain areas of the entire property, but outside the area for which a v~riance is now sought. The prie~ paid, and the subsequent history of the property to date, have bearing on the applicant's claim that the property cannot produce a reasonable yield as zone,l. It in presu~ed that this refers to the requirement that " ~ol]~rs and cents" proof of a property's inability to yield a reasonable return aa zoned sat by the Court of ^ppeals in the landmark case of Otto v. .qteinhilber. Practical difficulties cannot be el. aimed jf self created. Property originally pure~hased Jn 1946. At that tir,m there was no zonin~ in Southold. ~or was there a tax map. Aa a resu]t, the owner wn~ free to use the property in any ~anner he saw fit and to apportion it accordingly. Investigation of the public records reveals that what is now Lot 23 was conveyed b~; Joseph ^. l,a Colin to Edward van Cure and Charlotte ux in 1')q3. Joseph A. La Co]Ia al. so conveyed what is now Lots 20.1 a~d 20.2 to Genevieve Richards in lqSR. Lot 22 was conw~yed to Thomas ~. La Coils by John A. [,a Colla and Joseph A. La Colic, Jr. in 1062. Lot 21 was conveyed to D. Oliver by the La Colic Estate~ff~ All of the f~rantees were d~nt. ributees of Joseph fi. La Col]a who died intestate in 1~60. Thin is evidoneed by the previously referenced agreement of ~epte~nher 10, 1960. ,qince the apportion~sont of the property wa~ ]nt,~rfamily, it roi. lows that any practical difficulties resultin~ fro~'~ haphazardly pieced and parcels is self created. The applicant aisc claims t!,e parcel frs unique because of its configuration and location and that an inability to use the property as zoned effectively eonfiscstes the property, It is a basic premise of real property valuation that ail propertion are unique aa to location and eonfisuration. Such unique feature, s aa may be claimed to e×Jnt in the overall property, and adversely affect its value, have been reflected in the discounted purchase price. Certainly the area for which a variance is sought ia not unique, or could not he maintaioed to be so, were it not for the actions of the owners and/or their predecessors in title. The inability to use the property as zoned must be prove~. The statement that th~ "unique" nature effectively confiscates constitutes a statement that the property is without value as zoned. The standard that a pr~perty must be withnut vaIue as zoned to justify a uae var~noe is the ~?neral standard employed by today's courts. I, any event, the burden of provin~ the property's lack of value re~;ts wit~ the applicant and he must meet strict standards of proof. The applicant also claims that the variance sought would observe the spirit of the ordinance and would not change the character of the district. (4) The bulk of the area for which a variance is sought lies in a R 80 district. Obviously ~ variance permitting commercial use would change the character of an R ~0 district. The nor. thea.~terty port~o~l of t, he property involved ~ this sppl ]cation is heavi]y wooded, fronts ou a larce pond and ~s located Jn a critical environmental area. These charncterist'~es dict~ted the low density zoning of this port of tho property. In preparir]g the town's master p]an, the town's ~nde2endent,professional planning consultants, Raymo~d, Parish, Pine and l.~e]nnr, recognized these features, and to prmserve them recommended that this area be premerw~d as open spmco. The R AO zoning w~s considered the best means to obtain th~s r~nd. Ouite recently, the L<~uC Tn]and Re~]onal P].annin5 Poard its Comprehensive P],~] For the Town of Coutho]d, 1090 - also e]ass~fied this area as open space and planned For future acquis]stion by the County of Zuffolk. As to t}te spirit of the (~rd;~l~nee, ii, asd the ordinances intent have been succinctly stated ]~ two successive mnster p]~ns and approved by a series of Town Boards over a per~od of some 37 years. The town's eomprehennive plan has also been supportnd by a number of policy statements made by the Town ~nd P]annina Boards. Among them is an oppos]stion to strip zoning. If the easterly 600+/- feet of h~hwny front~{e were converted to commercial use, contrnry to the advice of the professional planners citer], praet'}.rmlly th~ entire northerly frontage of Rte. 25~ from ~ud(l's P~m,l oa~t~,r'ly to the Greenport ~i]l~e lJ~~ would be strip z~ned far e~mmer'eJal use. The propose t variance also runs count~r to the town's planners stated intent to confine business uses to hamlet ar~as. Last]y, but far From ]east, tho Board's primary concern is, or should be, with the public's safety. The authorities reco~n~z~ that the length of Rte. 25 extending easterly alone the arc of a sharp curw~ from ~i]] Creek to the highway overpass over the LI[~R ~Ow, js extremely haznr4ous avnn as presant].y constituted. The arc of the curve reduces a dr~vers ].~ne of site and hence his reaction tim~. Rte. 25 in ~ two lane h~ghway heavily trave]ed, particularly in summ~r.~rn~n5 across the Flow of traffic, abetted by the reduced reaet~o~ t~me dictated by the curve, resuts in a potential for disastrous rear end collisions. Another' factor coOntr~but~t~g to the hazardous nature of this portion of the highway ~s the change of grade r~su]tin~ from the hif~hway's overpass across the LIP, R ROw. This aisc reduces the line of s'ite,all the more so when inereasac] traffic can be anticipated fro the expanded marina on Y, age B]w]. The present aro~ of m~p]anne,] business use east of tho Mill. Creek constitutes approximately 3.4 acres. There are currently nine driveways iinterseeting the northerly side of Rte. 25 From this area. The developed business area ~s opposite the confluence of Dolphin and Albacore Drives on the map of Southold Shores. (5) Granting this variance wnu]d r'e~u]t in nvnr nine acres devoted to business 'uses at this ]oeatio~. ~!ot only would these uses be unsupervised by plann~n~ a~]thorities, but there would be an attendent increase in driveways and traffic. The easterly extension of business use would sl.~o place ~t oppos}te Tarpon Dr~ve on the Map of Southold Shores. The existing hi~hway s]tu~tion in this sr~a is already so haznr~tous as to warrant invest]~st]o~ by the ;]Y,C Dept. of Transportation. For this resson a]onn the r~r'nnt~n~ of tile Proposed v~riance would be unconscionable. The exJ stJ n~ bl]s in-ss ~]~s ~ n t!~e areD date from a period when there was no zoning ,~nd ,~rew ].J~<e Top~y. ny way of contrast, the map of ,qouthold Shores ,,las noDroved by the Planning ~osrd as beinf~ in accrd~nce ~ith the town's zoning. Extendin~ the on the subject pl~operty !~ln~]]d nnt only ~dver.~ely affect the safety ~nd welfare of t',h~ resi~onts of Southold Shares and devaluate their propert~n~, bu~', ~,~ou]~I set a preeednnt for further applications for bunin~no~ use on the southerly side of Rte. 25. (6) F. M. Flynn P. O. Box 144 ~outho]d, N. Y. 11071 (516) 477 - 0698 May 1, 1992 Thomas ,Junor Assistant Director of ~uffolk H. Lee Dennison Buildi. nz Veterans Memorial Highway Hauppauge, N. Y. 117g~ County Planning Re: Property U/S Rte. 25, E/O Mill Creek, Town of ~outhold (SCTM District 1000, Sec. %6 B].k. 4 Lot 24) Dear Mr· Junor: This letter ~,s intended to advise your department of ~n appl)ention .10~1) pendin~ before the Southold Boarc~.of ZoD~n~ (Appeal t~o, ~ ~ Appeals by means of which an attempt Js bein~ made to rezone a substantial parcel of low-density residential land to comm,~re]nl use in the guise of seekin5 a v~riance. A public hearing on this matter is scheduled before the ZBA at 8:15 PM on May 7, 1002 Tibet such an attempt nhou]d be made Jn Southold need hardly prove surpri~]n~ sine~ tho. 7. RA has a history of ~ranting such "variances" to the politically F~vored rather as if it were dispensing largesse, l,e/%~l precedents and the proof required by law are disregarded. What shoud be of particular interest to your department is that the area ~n question is a critical environmental area, heavily wooded and abutting wetlands. It was recognized as such on the Long Island Regional Planning Board's Comprehensive Plan for the Town of Southold for the per~od 1190 - 2010. The plan indicates that the area be preserved as open space with the intention of future acquisistion by the County of Suffolk· I enclose a copy of a letter of even (late to the Regional Director of the NYS Dept. of Transportation. The letter outlines the magn~itude and intensity of what ia actually a zoning change as well as the impact on public safety and welfare should the application be approved. I respectfully request your department's ~ntervent]on in this matter. Very truly yours, F. M. Fly'm/ - 4 1992 $OUTNOED TOWN PLANNING BOARI.) r;'. M. Fly,m P. q. Bo× 144 ~m]thold, N. Y. 11971 (516) 1177 - D69~ May 1, lqq? Regional Director HYS Department of Tran~portntiou State Office Pu~ldin~ Hauppa~ue, N. Y. 117~A Re: NY,G ~te. 25, P,/O Mill Cr<~oP, Armhnmomnque, qoutho]d, ~,]. Y. Desr Sir: h~ attested to 1,y th,, c,~nl,~no,1 r~,~py nf nn nrtlel~ from the Suffolk Times of April P3, log?, hud hv my own ~xporlenee, thr~ ref~-r~,leed section of Rte. Pq ia extremely hazardous in it~ present eond~tio,. I believe you should he ~dvJsed that there i,~ an ,~pplie~tlon (Appeal. ~,~o. ;~OOl) beror~ tho which, [f grnnted, wo.ld have ',h~ ~ffnet of e~tendtn~ the preterit 1106 +/- I,P of comm~re~m] zoni. C along the northerly side of Rte. 25, and extendj, n~ eF~mterly from Mill Creek, by mu ~ditJonsl 470 +/- LF. Tile overall d~pth wr)u]d b9 extended 8nd the intensity of use t. nere;,n~d. The Dropr)~d ~llore~ze would p~su]t In ~n ~r~ of commercial uae two and ~me-half times the area 2resently used for that ~rposet There are now nine (g) driveways intersecting the northerly side of Rte. 2q from 956 +/- l,F of the property's existing commercial zoning. Traffic al. so intersects tile southerly side of Rte. 25 opposite the ~ubjeet property from the Southold ~hnres residential development via the co.f]uence of Albacore and Dolphin Drives and from Tarpon Driw~. Anoti~er adverse influence ou traffic n~fety tn the area is the Rte. 25 overpass over the [,Iqg UCCC. The highway ~rade inere~se~ in a ~ortherly direet]or1 hn~inn].~ approximately 150 LF nortber]y of Sage Rlvd. Not only ,lo~s thi~ h~ve the effect of d]minishJn~ the line-of-sight for wd~Le]~n ~pproaehin~ the e.rve, but eo~]d~pnh]~ additi, on01 intmpseotJnrq traffic e~n b~ nntinipated from the expansion of the martn~ Joy, al;nd so,,~ 17qQ [,F na~terly of ~t9.?r; on Sage Blvd. It Js ~lzo ~×tremely l~%;]t,,tou.~ Lo attempt tllrns set'ese t}le f]t~w of traffic on th~.s two ];~ne }ll~11wny. DrJvers approneh~no turu~nq vehicles from the reap have ]~mited reaction time to avoid rear end collisions. If it is acknowledged that a dangerous condition exists along Rte. 25 in this area, how ,~uch would the situation be worsened! if the area and intensity of eo~nm~rclal, usage would be subjecte,t to a quantum increase. I believe that, in the interest of the general welfare, it is incumbent on the Departt~e~]t of Transportation to initiate a thorough investigation~of thfs situation includin6 the obvfous effect~ on the p~blic ~-,afety of the plan~ quantum increase of commercial use. A public hearing is scheduled before the Southold ZBA at 8:15 on May 7, 1992. Very truly yours, F. ~. Fly cc: Suffolk County Planning Department ,! ! /0 LASER FICHE FORM Planning Board Site Plans and Amended Site Plans SPFile Type: Project Type: Site Plans Status: Incomplete Application - In Active SCTM #: 1000- 56.-4-19 Project Name: LaColla, Eugene Address: NYS Pt. 25, Greenport Hamlet: Greenport Applicant Name: Eugene LaColla Owner Name: Eugene LaColla Zone 1: Approval Date: OPTIONAL ADDITIONAL INFORMATION End SP Date: Zone 2: Location: SC Filing Date: C and R's: Home Assoc: R and M Agreement: A date indicates that we have received the related information .Zone 3: SCANNED OCT - 6 2009 Records Management SCAN Date: PAINE I SI..A LON~ ~,~LAND M AR ~c~ I- II 1OO' FI::IOM WETLA M-II .... ,I ROAI~ EXISTING ZONING MII and R-80 FLOOD INFORMATION Flood inforination taketl from the flood ins~lrai]ce rate map. Prepared by the Federal Emergency Management Agency (F.E.M.A.) ZONE DESCRIPTION A 4 Areas of 100 year flood; base flood elevations (EL 8) and flood ]lazard ~actors determi[]ed. B Areas between limits of the 100 year flood and 500 year flood; or certain areas subject to 100 year flooding with average depths ]ess ghan on~ (1) foot or where the c:ont~ibutil~g drainage area ~s less tharl one square mile; or areas protected hy levees from the base ~]ood. (Medium shading). RAILI::I O :kO ARSHAMOMAGUE SOUTHOLD Design Properties ri( ~1,~11 I I/'xX I'~:'( ~88 8-160 7,3