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Home My WebLink About1000-55.-1-9 SEO. R Positive ,Declaration riotice of Intent to Prepare a Draft Determination of Significance Lead Agency: So uthold Town Board of Appeals Project#(ifany) q02! Address: Southold Town Hall 53095 Main Road, Box 1179 Southold, NY 11971 516-765~t809 Date: August 15, 1991 This notice is issued pursuant to Part 617F(and local law if 3-1~)78 if any) of the imple- menting regulations pertaining to Article 8 (State Environmental Quality Review) of the Environ. mental Conservation Law. The lead agency has determined that the proposed action described below may have a signifi- cant effect on the environment and that a Draft Environmental Impact Statement will be prepared. TItle of Actlon: Michael Cholowsky (Lorinda C. Casola, Owner.) SEQR Status: Type CJnlisted De. scrtptlon of Action: Proposed golf driving range, miniature golf and related office building uses as may be authorized by Special Exception by the Board of Appeals under Art. III, Section I00-31B(7) of the Zoning Code, and for site plan approval by the Planning Board. The land is presently vacant. One of the requirements to be met is that the proposed project will not be operated for profit as a business enter- prises in th~s Agricultural-gOnservation (A/C) Zone District. Location: (Include the name of the county and town. A location map of appropriate scale is also recommended) t 3340 Horton's Lane, Southold, Town of Southold, Suffolk County, New York, County Tax Map Parcel Designation t000-55-1-19 containing t6+- acres, (Attach additional pages as needed) I [ SEQR Positive Declaration Reasons Supporting This Determination: (See annexed sheets 3 & 4) Page 2 For Further information: Contact Person: Address: Phone No.: Gerard P. Goehringer, Chairman (or Lind~ Kowalski) Town Hall, 53095 Main Road, Southold, NY 11971 516-765-1809 Copies of this flotice Sent to: Commissioner-Department of Environmental Conservation, 50 Wolf Road, Albany, l'lew York 122.33-0001 Appropriate Regional Office of the Department of Environmental Conservation- Region I. Office of the Chief Executive Officer of the political subdivision in which the action will be princi- pally located - Supervisor Scott L. Harris Main office and appropriate regional office (if any) of l~ad agency Applicant (if any) Mr. Michael Cholowsky, 6565 Main Road, Mattituck, NY 11952 All other involved agencies (if any) Environmental Notice Bulletin Southold Town Planning Board~ Southold Town Attorney's Office Southold Town Clerk Bulletin Board (lobby) Attorney for the Applicant, J. Kevin McLaughlin Page 3 - Positive SEQRA Declaration August 15, 1991 Title of Action: Michael Cholowsky (Lorinda Casola, Owner) Location of Site: Horton's Lane, Southold REASONS SUPPORTING THIS DETERMINATION:I This determination is issued in consideration of the criteria for determination of significance contained in 6 NYCRR Part 617, the Long Environmental Assessment Form, and as noted below: 1) The proposed project site is presently vacant land, having been farmed over the years for agricultural purposes, and is located in the Agricultural-Conservation Zone District, adjoining lands to the north and east also located in the Agricultural-Conservation Zone District. 2) The proposed project site is situated opposite Lucas-Ford, an established on-premises vehicle-sales distributorship, and an auction (sales) establishment, is situated opposite residences, all of which are accessed by the same roadway(s), and which, when combined with the proposed multiple uses herein, may have a cumulative impact on the traffic pattern for this community. 3) Tthe subject site is situated less than 100 feet from a four-way intersection along a heavily traveled major road (County Road 48), and which intersection is located approximately 1500 feet east of a major four-lane express highway. 4) No turning lanes or deceleration lanes exist from the major road to turn left onto Horton's Lane, where this site is located, from any direction, and the speed limits range from 50 ~h (or more) depending on the direction of travel. 5) Landscaping and buffer areas can be provided and should be considered by the Planning Board in conjunction with the site plan application on this project, as may affect nearby residences or residentially zoned properties. 6) All aspects of the SEQRA process are not to be construed to mean authority or interpretation in any way concerning action on the "use to be considered in the Special Exception," particularly since a public hearing has not been held and action on the Special Exception may not take place until a public hearing has been held, and since at the present time, the applicant has not provided sufficient proof to meet all provisions of the zoning code applicable to the zoning request. Subsequent to finalization of SEQRA for this application, a public hearing and other documentation will be necessary for a thorough review which will suffice to answer the question of appropriate uses and activities Section 100-30B(7) of the Zoning Code for a Special Exception. Page 4 - Positive SEQRA Declaration August 15, 1991 Title of Action: Michael Cholowsk¥ (Lorinda Casola, Owner) Location of Site: Horton's Lane, Southotd REASONS SUPPORTING THIS DETERMINATION (continued): 7) Preparation of a traffic study is required and shall include: (a) description of peak hour traffic flows, a.m. and p.m. (b) vehicle mix (c) sources of existing traffic volume (d) pedestrian and bicycle environment, existing and resulting from this project (e) design for adequate and safe access to project site to handle projected traffic flows as well as pedestrians and bicyclists resulting from the proposed activities at the site (f) need for adequate traffic control devices (g) incorporate mitigation and alternative measures to reduce or minimize impacts, or to produce beneficial impacts; and (h) list underlying information, reports, studies relied on in preparation of this document, and list consultants, private persons, organizations, agencies consulted in preparing this document, as well as technical exhibits and relevant corres- pondence. 8) Completion of a corrected Long Environmental Assessment Form must re-submitted (for the reasons noted in previous co~m~unications). be 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 7:3~p.m. Meeting AGENDA REGULAR MEETING THURSDAYt AUGUST 15t 1991 to Order. SCOT'r L. HARRIS Supervisor Pc% I. ,PUBLIC HEARINGS: %, .~:3~ p.m. Appl. No. 4043 - JOHlq H. AN~.~AYLE BIRK~IE' ~ ~-~?Excepti°n to thepermissionZOning Ordinance, Arti~le--~I~-~n ~ ~'100-30B(16) for to establish "Bed and Breakfast Use," · ~ ~? an owner-occupied building, other than a hotel, where ledging \3'..3 ~.' and breakfast is provided for not more than six casual,' \ ~.~ transient roomers, in two bedrooms on the second-floor of the ~ existing dwelling structure· Location 48850 Main Road, ?:',-~-z.~,,~ Southold, NY; County Tax Map No. 1000-70-07-10 Variance to the Zoning Ordinance, Article XXIII,-~S~i~ 100-239.4B and Article XXIV, Section 100-244B, for approval of ~.~, deck construction at less than 75 feet from the bulkhead and in excess of the 20% lot coverage limitation for all structures. The subject parcel is substandard in size and is located in the R-40 Zone District. Location of Property: 2435 Cedar Lane, East Marion; County Tax Map No. 1000-37-4-9. 7:4~p.m. Appl. No. 4045 - GLORIA LOWERY~7'Varianee to the Zoning Ordinance, Article XXIII, Section 1~-239.4(B) for permission to construct open-deck addition to dwelling structure ~%.with a setback at less than 75 feet from the bulkhead. The subject parcel is substandard in size and is located in the ~ R-40 Zone District. Location of Property: 650 Oak Avenue, ~u Southold; County Tax Map No. 1000-77-1-2· Also referred to as Lot Nos. 285, 284, 283, 282, and part of 281 on the Map of Goose Bay Estates (1934). 7:~.~' p.m. Appl. No. 4046 - MR. AND MRS. THOMAS M. MoKEON./""'"~ / Variance to the Zoning Ordinance, Article XXIV, Section 100-244B for permission to construct addition with breezeway and garage which will be in excess of the 20% lot coverage limitation. The subject parcel is substandard in size and is located in the R-40 Zone District. Location of Property: 415 Fisherman's Beach Road, Cutchogue; also referred to as Lot 7 on the Map of Peconic Bay Properties, Inc. (1931); County Tax Map No. 1000-111-1-~6. Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 Page 2 - Agenda Regular Meeting of August 15, 1991 Southold Town Board of Appeals located in the Agricultural-Conservation (A-C) Zone ~~ Location of Property: 6920 Main Road, Laurel; No. 1000-126-01-4.1; also referred to as Lot Nos. ~ ~Ma~ of George I. Tuthill (1929). ~-~', ~_3~o ~pecia± Exception apProv~-I-~ndler Apb1. No. 3491~ ~i~ Light Industrial (LI) Zone DistriCt for-permission recycling and salvage facilit~y, excavation and (pursuant to Town Board Resolution adopted April 9, Jg~, used in conjunction with those uses conditionally ,?~'under Special Exception No. June 25, 1986) for outside s~49~ !~A resolutio~ a~ ~ocnp~llng of material arc~ offices. Location of Property: Lot No. 2 on the Subdivision Map No. 450 of L.B. Glover; 11910 Oreg~lR~,~d~,, Cutchogue, NY; County Tax Map No. 1000-83-3-part of containing 4.59 acres. 2=~3~ p.m. Appl. No. 4~48 - BURT LEWIS, JR. Varian¢~ ~ th~ Zoning Ordinance, Article III, S~ction 100-32 and Ar~.~ ~, Section 100-243 for approval ofloffice addition res~n~ i~ a~m expansion of the existing nonconforming use and in~-~ ~fum degree of nonconformance of the building setback in ~h~ ~=m~ yard area. The subject parcel is substandard in size. a~a~ ~ ..... ppl. No. ~042 - LAWRENCE CERVON. Varia~u~ ~s~l~ance, ~rtl~le.~X~.I~I, Section ~00-239.4~ ~ ~ess than"7~°f~s~~~ dwelling with Peconic Bay Boulevard, Laurel; County,~Tax Map PaI=~. %000-126-11~21. The subject parcel is~ubstandard~ lS..~ocated in the R-40 Zone District.~ '8:~ p.m. Appl. No. 395~ - ~. ~D ~S. JOSEPH ~.~ Variance to the Zoning Ordinance, Article IX, Sec~n~ for permission to increase the degree of nonconfo~e~ ~ lot area for the establis~ent or approval of a unit in an existing dwelling structure and for the ~%~%~ or approval of a third dwelling unit in the rear building, both in conjunction with multiple busine,~ existing single-f~ily residential unit o~ this s~a~ parcel. Location of premises: 13500 Main Road, County Tax Map ID No. 1000-114-11-5. The subject nonconforming in this H~let Business (HB) Zone containing approximately one-half acre of total ~o~ ~.. 8:%~ p.m. Appl. No. 3959 - ~. ~D ~S. JOSEPH Exception to the Zoning Ordinance, Article IX, Se~ 100-91B(2)(4) to permi~ either an accessory dwelling unit over stores, or alternatively to dwelling use within the ~r existing mixed bUsiness/r~~ UCture. Location of premises: 13500 Main .... e 3 - Agenda ~gular Meeting of August 15, 1991 3outhold Town Board of Appeals II. A. County Tax Map ID No. 1000-114-11-j. The subject parcel is nonconforming in this Hamlet Business (HE) Zone District containing approximately one_h~if acre of total lot area. · u p.m. Appl. No. 4039 - CLIFFSIDE ASSOCIATES.~ A~peal for an Interpretation under the Definition Section of the Zoning Code, Article I, Section 100-13 as noticed to the adjoining property owners, as pertains to dwelling and/or motel uses, and the installation of cooking facilities. Location of Property: 61475 County Road 48, Greenport, NY; County Tax Map Parcel ID 1000-045-01-001 and 002 (2.1), containing approximately 7.5 '~acres. Zone District: Resort Residential (RR). SEQRA Updates or Reviews: III. SEQRA Declaration - Joseph and Betty Hardy at Mattituck. HB Zone. Lot/Area Variances. Determination of Type II (Exempt) Action - Burr Lewis, Jr. at Mattituck. A/C Zone. Request is for increase in degree of Nonconformance of Addition and Expansion of Nonconforming Use. Appl. No. Cholowsky - No responses received within time ~x period from other agencies concerning ZBA coordination. ~7~ ZEA to make determination of significance or non-significance. Numerous communications has been ~ received since last meeting indicating concerns of proposed miniature golf course facility. ~i Appl. No. 4041SE - DONALD GRIM. Correspondence from Planning Board as Lead Agency coordinating LEAF. Comments will be accepted until September 12, 1991. OTHER: DC A-~ Correspondence coordinating SEQRA Notice from Trustees on %,,~,,~ Brick Cove Marina expansion to 138 slips. Board of %~,~ ' Trustees is lead agency in this Type I Action. B. August 15, 1991 Add-ons II. SEQRA Updates or Reviews (continued from Page 3): E. Appl. No. 4047 - ETHEL BETZ. Type II Action. Lot Line Variance filed on July 26, 1991. III. ~\U B. ~- C. F. Appl. No. 4049 ~ JOSEPH CARPENITO. Type II Action. Setback variance ~on . C~. filed August 2, 1991 OTHER (continued from Page 3): Resolution setting date of Special Meeting for: b~J~c~ Resolution setting date of Regular Meeting and .' Hearings for Fri~-~fT, Sep~t~ember 25, 1991 (or other date as determined by Board).-[~ Referral of the following application to the Planning Board for comments, if any, to be received by ZBA advertising deadline of September 16, 1991: Appl. No. 4047 ~ ETHEL BETZ. Lot line variance. § 24.15 NEW YORK ZONING ingly, it may not issue special permits other than those specifi- cally authorized by the ordinance? A board 'may not, for exam- pie, grant a special permit to extend cabanas, bathhouses, and parking, tennis, and swimming facilities of a beach club into a restrictive residential district, under the guise of permitting a clubhouse which would occupy an insignificant portion of the land.' A commercial use of land for a bowling alley, restaurant, and bar may not be permitted to extend from 1V2 percent of land in a commercial district to occupy 98V2 percent of land in a residential district, where the ordinance does not allow the extension of use into a more restrictive district if a major fraction of the use will extend into the more restricted zone? A board of zoning appeals may not, of course, grant a special permit unless the applicant has demonstrated his compliance with the conditions imposed by the ordinance, and the board must make such findings as the terms of the ordinance require.6 3. The zoning ordinance authorized the board of zoning appeals to per~it theatres of 500-seat capacity in the district in issue. The board granted a permit for a 500-seat theatre, plus a second theatre of the same size in the same building. The court held that the board was without authority to grant the second permit. New York Life Ins. Co. v Galvin, 41 AD2d 83, 340 NYS2d 822 (1973, 1st Dept), mod 35 NY2d 52, 358 NYS2d 724, 315 NE2d 778. A board of zoning appeals is with- out authority to grant a special per- mit to construct a tennis court nearer than 100 feet from a lot line in a residential district where such use is proscribed by the zoning ordinance. This result is required notwithstand- lng that abutting lots are effectively screened by woods and shrubbery. Fatkenbury v Schultz, 44 AD2d 827, 355 NYS2d 22 (1974, 2d Dept). A board of zoning appeals is with- out authority to grant a special per- mit for the construction of a fence where the zoning ordinance does not provide for a special exception for such use. Application of Davison, 18 AD2d 740, 235 NYS2d 429 (1962, 3d Dept/. 296 A board of zoning appeals lacks authority to grant a special permit to establish a car wash in a commercial district where the ordinance autho- rizes garages and gasoline stations, under such permits, but does not mention car wash establishments. Hartnett v Segur, 21 AD2d 132, 249 NYS2d 193 (1964, 3d Dept). 4. Schroeder v Kreuter, 206 Misc 198, 132 NYS2d 144 (1954), affd 284 AD 972, 135 NYS2d 637, affd 308 NY 993, 127 NE2d 845. 5. Application of River Drive Constr. Corp., 30 Misc 2d 139, 216 NYS2d 955 (1961), affd 14 AD2d 884, 218 NYS2d 566 (2d Dept). Where the zoning ordinance autho- rizes issuance of a special permit to conduct a garage, minor garage, or motor vehicle repair shop, the board of zoning appeals may not permit the bonding, riveting, and assembly of brake shoes. Sirota v Grunewald, 222 NYS2d 841 (1961, Sup); Tully v Mi- chaels, 33 Misc 2d 814, 222 NYS2d 395 (1961). 6. A board of appeals erred in granting a special permit for a school to an applicant who was acting for a 'e as applied to his · al difficulties? d of zoning appeals aance or for failure -~ ordinance. Where ~ents for a special permit may not be cence to the provi- de courts have said ed by the common- courts should not off-street parking as a ,pecial permit. Titus St. Owners Ass'n v Board .als, 205 Misc 1083, 132 34). zoning ordinance re- special permit be se- tvation, but does not ion of the environment or issuance, a board of t deny a permit on the ~e proposed use as a will involve potential hazards. Chem-Trol ces, Inc. v Board of 2d 178, 411 NYS2d 69 rd of appeals is with- :o deny a permit to -free liquor store in a ntly sited in a district se is permitted, on 'ovided in the ordi- ~ffalo Zoning Board of 12d 991, 401 NYS2d eptl; citing Anderson, r Zoning § 19.19. ~ance authorizing the ' review all site plans ~pliance with the zon- lid not authorize the 'o require a 230-foot :rict where a 35-foot luired by the ordi- ~ Realty Holding Co t8 AD2d 852, 368 .2d Dept/. SPECIAL PERMITS § 24.15 intervene in the absence of clear illegality. The issue, for exam- ple, of whether a gasoline station in a particular locality would imperil the safety of persons or property is one of fact for the board to decide.2 --~ A board of zoning appeals has no legislative authority. Accord- 2. Texaco, Inc. v Segur, 24 AD2d 692, 261 NYS2d 374 (1965, 3d Deptl. A special permit for nursery use in a residential area will not be annulled where the use was authorized by the ordinance and substantial evidence supported the determination of the board. Cummings v Town Bd. of North Castle, 95 AD2d 818, 464 NYS2d 13 (1983, 2d Dept). Denial of a special permit to estab- lish a "commercial recreation" use was not unreasonable where the pro- posed use consisted mainly in a bar offering entertainment, the recre- ational facilities being clearly subsid- iary to the main use. North Ridge Enterprises, Inc. v Westfield, 87 AD2d 985, 450 NYS2d 112 (1982, 4th Dept), arid 57 NY2d 906, 456 NYS2d 763, 442 NE2d 1274; citing Anderson, New York Zoning Law and Practice §§ 19.16, 19.18, 19.20 (2nd Ed 1973). A developer's application for a spe- cial exception should be granted by zoning board of appeals when the developer meets the ordinance re- quirements and the adjacent landown- ers ofl~r no proof to contradict the evidence provided by developer's ex- pert witness. North Shore Equities, Inc. v Fritts, 81 AD2d 985, 440 NYS2d 84 (1981, 3d Dept). An application for a special permit to conduct soil mining on a 107.7-acre parcel was supported by a 60-page, $15,000 study. Nevertheless, where the record supports the Board of Ap- peals' determination that its stan- dards were not met, and where the standards prevent unchecked discre- tion on the part of the board, the determination of the board will not be set aside. Miller v Ward, 72 AD2d 565, 420 NYS2d 745 (1979, 2d Depth affd 51 NY2d 887, 434 NYS2d 972, 415 NE2d 961. Generally the courts will not inter- fere with a zoning board's resolution of a special exception issue as such issues are best "resolved by the 'com- mon-sense judgments' of 'representa- tive citizens doing their best to make accomodations between conflicting community pressures'." Burger King Corp. v Amelkin, 70 AD2d 627, 416 NYS2d 528 (1979, 2d Dept). Denial of an application for a spe- cial exception to erect a freestanding sign will be sustained where the board's decision was not arbitrary or capricious. Evidence that the appli- cant's business was near the highway and identified by existing signs was sufficient to support a denial of relief. Bushell v Sacca, 69 AD2d 861, 415 NYS2d 449 (1979, 2d Dept). Where an ordinance includes res- taurants among the uses allowed in the district under special permits, and one standard for judging permit appli- cations is whether, the use "is reason- ably necessary for the public health or general interest and welfare," a permit may not be denied unless the record shows that the proposed use will be injurious to the public welfare. Cove Pizza, Inc. v Hirshon, 61 AD2d 210, 401 NYS2d 838 (1978, 2d Dept). A board of zoning appeals did not act arbitrarily when it approved a special permit for a 72-unit mobile home park but denied a permit for an additional 265 units. The applicant had failed to meet its burden of proof by supplying the detailed plans re- quired by the zoning ordinance. Pais- ley Development Corp. v Zoning Board of Appeals, 58 AD2d 705, 396 NYS2d 99 (1977, 3d Dept). 295 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 SCOTT L. HARRIS Supervisor Town Hail. 53095 Main Road P.O. Box 1179 Southold. New York 11971 Fax (516) 765-1823 MEMORANDUM TO: FROM: Gerard P. Goehringer, Chairman Zoning Board of Appeals Bennett Orlowski, Jr., Chairman RE: Environmental Assessment Form for ZBA Appeal No. 4021 for Michael Cholowsky For Special Exception for Non-profit Membership Club Horton's Lane, Southold DATE: July 12, 1991 This is in response to your Lead Agency Designation notice dated July 10, 1991. The Planning Board has reviewed the environmental assessment form for this project. Some of the information provided on the form is not correct. Also, the use of the term "not applicable" in answer to some of the questions is inappropriate. The answers to the questions listed below should be reconsidered. Also, the Suffolk County Department of Health Services should be placed on the list of coordinating agencies. PART 1: Section A: Question 3: Sand is not a soil type%Proper soil types should be indicated. Subsection b. of this question should be answered because it may be applicable. . ~ Question 4: The depth to bedrock is greater than 500 feet. Question 9: The answer is "Yes." Question 14: The answer could be"Yes." Section B: Question 1.g.: How was this number generated? Question 10: Will any agricultural jobs be lost by change of use from farmland to a golf club? Question 18: What methods will be used to maintain turf for course and driving range? Question 20: What ambient noise levels are anticipated? Question 23: Anticipated water usage appears to be too low. Question 25: Permits will be required from the Suffolk County Department of Health Services for water supply and wastewater disposal. A contract with the Greenport Village Water Utility Co. may also be required for water supply. A permit may also be required from the New York State Department of Transportation if off site signs will be used. Section C: Question 1: A Special Exception (Use) required as well as a site plan. permit is Question 3: An answer is needed. Question 7: The characterization of the predominant land uses and zoning categorizations is not correct. Question 11: The proposed action probably will create a demand for some community services. Question 12: There is likely to be some impact on traffic. Please send us a copy of the revised assessment form and any supplemental material the applicant may submit in support of his statements on the form. 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 O~ SOUTHOLD SEQRA DESIGNATION OF LEAD AGENCY SCOTF L. HARRIS Supervisor Town Hall, 53095 Main Roafi P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 LEAD AGENCY: Southold Town Board of Appeals ADDRESS: Town Hall, 53095 Main Road Southold, NY 11971-1179 DATE: July 10, 1991 PROJECT DESCRIPTION: Determination by the Board of Appeals as to whether a golf driving range, miniature golf and related office building shall be authorized by Special Exception under Article III, Section 100-31B(7) of the Zoning Code, and for site plan approval by the Planning Board. This Notice is issued as a supplement to the requirements under 6 NYCRR Part 617 of the implementing regulations pertaining to Article 8 (State Environmental Quality Review) of the Environmental Conservation Law, and regulations pertaining to Local Law #44-4 (Chapter 44 of the Code of the Town of Southold). PUBLIC COMMENT: A Long Environmental Assessment Form (LEAF) has been completed for the above-described project and is coordinated herewith for your review. Specific comments on the project must be submitted in writing to the contact person named below not later than August 5, 1991. SEQR DETERMINATION: Project is an Unlisted Action. FOR FURTHER INFORMATION, CONTACT: Linda Kowalski Sou~hold Town Board of Appeals 53095 Main Road - Box 1179 Southold, NY 11971 516-765-1809 opies of this Notice sent to: Commissioner-Department of Environmental Conservation Appropriate Regional Office of the Department of S~/ Environmental Conservation, Region I · Applicant (c/o J. Kevin McLaughlin as Attorney) z'-' Southold Town Planning Board (Involved Agency) N.Y.S. Department of Transportation PART 1--PROJECT INFORMATION Prepared by Project Sponsor NOTICE: This document is designed to assist in determining whether the action proposed may have a significant effect on the enwronment. Please complete the entire form, Parts A through E. Answers to these questions will be considered as part of the application for approval and may be subject to further verification and public review. Provide any additional informauon you believe will be needed to complete Parts 2 and 3. It is expected that completion of the full EAF will be dependent on information currently available and will not involve new studies, research or investigation. If information requ. iring such additional work is unavailable, so indicate and specify each instance. NAME OF ACTION IApplication of Michael Choiowsky (Linda C. Casola) E/S 3340 Horton's Lane, Town of Southold, County of Suffolk, NY NAME OF APPLICANT~SPONSOR I BUSINESS TELEPHONE Michael Cholowsky I (516) 477-1016 c~o J. Kevin McLaughlin, 828 Front St., PO Box 803 CITY/PO I STATE I ZIP CODE Greenport, NY !!944 ADDRESS (no #) North Road, BUSINESS TELEPHONE I CITYIPO STATE [ ZIPCODE [Hampton Bays, NY 11~4~ DESCRI~IONOFACT[ON Establishment, c6nstruction and operation of a golf club consisting of golf driving raqge, miniature golf course and office building for above. Please Complete Each Question--Indicate N.A. if not applicable A. Site Description Physical setting of overall project, both developed and undeveloped areas. 1. Present land use: I-I, Urban ~Industrial []Commercial J~Residential (suburban) ~Forest i-lAgriculture rmOther 2 Total acreage of project area: 1 6.7 ± acres. APPROXIMATE ACREACF PRESENTLY Meadow or Brushland (Non-agricultural) 1 6 . 7 _+ acres Forested acres Agricultural (;ncludes orchards, cropland, pasture, etc.) acres Wetland (Freshwater or tidat as per Articles 24. 25 of ECL) acres Water Surface Area acres Unvegetated (Rock. earth or fill) acres Roads. buildings and other paved surfaces acres Other (Indicate type) qrass acres ~FTER COMPLETIONacres 3 ± acres 13 ± acres 3. What is predominant soil type(s) on project site? mand ~'")Jt- 0--'/~( -'~_ I/~5{'~--~ a Sod drama e ~Well d,a~ned 100 % of ~te ~Mo~erat I --- ~! ~ o~ ' g : ' ~ e y well drained ~__ ,o of s.te ~Poorlv drained __ % Of site ' - b.If any asricuJtural land is involved, now many acres of soii are classified within soil Stoup I throush 4 of the ~YS Land C,ass,fication System' n/a acres (See1 "YCRR 370). J5 ~ ~ ? 4. Are there bedrock outcroppinss on project site~ ~Yes ~No a. What is depth to bedrock? unknown (in feet) ~ ~ / 2 5. Approximate percentage of proposed project site with slopes: ~]0-10% 100 % r-I10-15% 015% or greater % 6. Is project substantially contiguous to, or contain a building, site, or district, listed on the State or the National Registers of Historic Places? K-lyes [~No ~ 7. IS project substantially contiguous to a site listed on the Register of National Natural Landmarks? []Yes ~JNo 8. What is the depth of the water table? 50+ {in feet) 9. Is site located over a primary principal or sole source aquifer? I-lYes :~]No 2~O~'(,~ ~ 10. Do hunting, fishing or shell f sh ng opportun t es presehtly ex st in the project area? OYes [~No 11. Does proiect site contain any species of plant or animal Iife that is identified as threatened or endangered? ~IYes [~No According to Identify each species 12. Are there any unique or unusual land forms on the proiect site? (i.e., cliffs, dunes, other geological formations) F~Yes [~No Describe 1~-. Is the proiect site presently used by the community or neighborhood as an open space or recreation area? I-IYes I'~No ~f yes. explain 14. Does the present site include scenic views known to be important to the community? 1S. Streams within or contiguous to project area: Iqorle a. Name of Stream and name of River to which it is tributary 16. Lakes. ponds, wetland areas within or contiguous to project area: a. Name ~-o~-e b. Size (In acres) 17. Is the site served by existing public utilities? l~Yes [No · a) If Yes, does sufficient capacity exist to allow connection? ~Yes {~No · b) If Yes, will improvements be necessary to allow connection? .I-lYes ' 18. Is the site located in an agricultural district certified pursuant to Agriculture and Markets Law, Article 2S-AA, Section 303 and 304? EYes 19. ts the site located in or substantially contiguous to a Critical Environmental Area designated pursuant to Article of the ECL. and 6 NYCRR 6177 C"Yes J~No 20. Has the site e~,er been used for the disposal of solid or hazardous wastes? r~Yes X~No B. Project Description 1. Physical dimensions and scale of project (fill in dimensions as appropriate) a. Total contiguous acreage owned or controlled by project sponsor lo. /: acres. b. Project acreage to be developed: 4-+ acres rnitially; 4-+ c. Project acreage to remain unJeve!oped 12+ acres. d. Length of project, in miles: n/~ (If appropriate) e. If the project is an expansion, indicate percent of expansion proposed f. Number of off-street parking spaces existing 0 g. Maximum vehicular trips generated per hour 20 h. If residential: Number and type of housing units: rl/a One Famdy Two Family Imtially Ulhmately i Dimensions (in feet) of largest proposed structure 18 ~ height; j Linear feet cf frontage along a public thoroughfare prolect wdl occupy is? acres ultimately. · proposed 40 (upon completion of prolect)? Multiple Family Condomm~um 30 ' w,dth: 40 length. 690-+ ft. 2. How much natural material {i.e.. rock. earth, etc.) will be removed from the site? 0 3. Will disturbed areas be reclaimed? {~Yes nNo I-]N/A a. If yes. for what intend . purpose is the site being reclaimed? cj'o].f dr±vin9- b. Will topsoil be stockpiled for reclamation? ~2~Yes [No c. Will upper subsoil be stockpiled for reclamation? I~Yes , 4. How many acres of vegetation (trees. shrubs, ground covers) will be removed from site? 3 + tons/cubic yards range acres $. Will any mature forest (over 100 years old) or other ,locally-important vegetation be removed by this project? l-lYes · ~No 6. If single phase prolect: Anticipated period of construction 3-4 months, (including demolition)· 7. If multi-phased: n/a a. Total number of phases anticipated Inumber). b. Anticipated date of commencement phase 1 month c. Approximate completion date of final phase month d. Is phase 1 functionally dependent on subsec~uent phases? nYes nNo 8. Will blasting occur during construction? E]Yes ~]No 9. Number of jobs generated: during construction 12 ; after prolect is complete 4 10. Numberof jobs eliminated by this proiect O . 11. Will proiect require relocation of any prolects or facilities? [~Yes [~:No If yes, explain year, (including demolitign). year. 12. Is surface liquid waste disposal involved? []Yes a. If yes, indicate type of waste (sewage, industrial, etc.) and amount b. Name of water body into which effluent will be discharged 13. Is subsurface liquid w~ste disposal involved? [~LYes nNo Type cesspools 14. Will surface area of an existing water body increase or decrease by proposal? r~Yes Explain J~No 15. 16. Is project or any portion of project located in a 100 year flood plain? I-lYes Will the project generate solid waste? ~:Yes ~No a. If yes. what is the amount per month 1 tons b. If yes. will an existing solid waste facility be used? I~Yes nNo c. If yes, give name ,qou~-hold Town Landfi]'~-Iocation d. l/No CutchoQue Will any wastes not go into a sewage disposal system or into a sanitary landfill? []Yes If Yes, explain 17. Will the project involve the disposal of solid waste? a. If yes, what is the anticipated rate of disposal? b. If yes, what is the anticipated site life? 18. Will project use herbicides or pesticides? ~Yes 19. Will 20. Will 21. Will proiect resu[t in an increase in energy use? If yes , indicate type(s) electric FlYes ~lNo tons/month. years· t'o project routinely produce odors (more than one hour per day)? f-lYes ~]No project produce operating noise exceeding the local ambient noise levels? fl-lYes :~]Yes [No 22. If water supply is from wells, indicate pumpin~,_,~apacity unknown gallons/minute. 23. Total anticipated water usage per da~/~.~_.~ gallons/day. 24 Does project involve Local, State or ~ funding? E/Yes ~No If Yes, explain 4 I'- L L. 25. Approvals Required: City. Town, Village Board City. Town, Village Planning Board City, Town Zoning Board City, County Health Department Other Local Agencies Other Regional Agencies State Agencies Federal Agencies F-lYes []No [~Yes []No 'E~Yes ONo (-1Yes r'lNo OYes nNo~ i'-Iy es i'-I N o OYes r-lNo nYes ONo Type Site plan approval special exception Submittal Date upon pDt.special ~*lon pending C. Zon,ng and Planning Information 1. Does proposed action involve a planning or zoning decision~ ]~Yes [~No - If Yes, indicate decision required: ~mzoning amendment I-~zoning variance [~13'ecial'use permit I-~subdivision Pgsite plan imnewtrevision of master plan /~resource management plan [~other 2. What is the zoning classification(s)of the site? A/C Zone District 3. What is the maximum potential development of the site if developed as permitted by the present zoning? 4 What is the proposed zoning of the site? ~a~e 5. What is the maximum potential deve{opment of the site if developed as permitted by the proposed zoning? J the proposed action consistent with the recommended uses in adopted Iocat land use plans? 7. What are the predominant land thin a 'A mile radigg of proposed action~ · mixed commercial~ ~3'f~-arldr r~'fden~dial ~;Wd/z~-;4~l~ 8 Is the proposed action compatible with adioining/surrounding land uses within a '4 mile? X~Yes 9 If the proposed action is the subdivision of land, how many lots are proposed? n/a a. What is the minimum lot size proposed? 10. Will proposed action require any authorization(s) for the formation of sewer or water districts? I/yes I~No 11 Will the proposed action create a demand for any community provided services (recreation. education, police. fire protectlon)~ ;-;Yes ~;]No '~ ~J~l~ ~ ' a. If yes. is existing capacity sufficient to handle projected demand? r-lyes I--INo 12 Will the proposed action result in the generation of traffic significantly above present !eve]s? r-lYes a. If yes. is the existing road network adequate to handle the additional traffic? ~Yes ~No 5 D. Informational Details Attach any additional information as ma,/ be needed to clarify your project. If there 'are or may be any adverse impacts associated with your proposal, please discuss such impacts and th,e_ measures which you propose to mitigate or avoid them. E. Verification I certdy that the information provided above is true to the best of mv knowledge· / · Il the action~intheJ~asla, Area, and you ar~tate agency, complete the Coasta, As~smenl Form be,ore proceeding with this assess~ 5 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 O~ SOUTHOLD SEQRA DESIGNATION OF LEAD AGENCY 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 LEAD AGENCY: Southold Town Board of Appeals ADDRESS: Town Hall, 53095 Main Road Southold, NY 11971-1179 DATE: July 10, 1991 PROJECT DESCRIPTION: Determination by the Board of Appeals as to whether a golf driving range, miniature golf and related office building shall be authorized by Special Exception under Article III, Section 100-31B(7) of the Zoning Code, and for site plan approval by the Planning Board. This Notice is issued as a supplement to the requirements under 6 NYCRR Part 617 of the implementing regulations pertaining to Article 8 (State Environmental Quality Review) of the Environmental Conservation Law, and regulations pertaining to Local Law #44-4 (Chapter 44 of the Code of the Town of Southold). PUBLIC COMMENT: A Long Environmental Assessment Form (LEAF) has been completed for the above-described project and is coordinated herewith for your review. Specific comments on the project must be submitted in writing to the contact person named below not later than August 5, 1991. SEQR DETERMINATION: Project is an Unlisted Action. FOR FURTHER INFORMATION, CONTACT: Linda Kowalski SouChold Town Board of Appeals 53095 Main Road - Box 1179 Southold, NY 11971 516-765-1809 Copies of this Notice sent to: Commissioner-Department of Environmental Conservation Appropriate Regional Office of the Department of Environmental Conservation, Region I Applicant (c/o J. Kevin McLaughlin as Attorney) /f-'Southold Town Planning Board (Involved Agency) N.Y.S. Department of Transportation PART 1--PROJECT INFORMATION Prepared by Project Sponsor NOTICE: This document is designed to assist in determining whether the action proposed may have a significant effect on the enwronment. Please complete the entire form, Parts A through E. Answers to these questions will be considered as part oi the application for approval and may be subject to further verification and public review. Provide any additional 4'- information you believe will be needed to complete Parts 2 and 3. It is expected that completion of the full EAF will be dependent on information currently available and will not involve new studies, research or investigation. If information requiting such additional work is unavailable so indicate and specify each instance. ~ ' NAME OF ACTION IApplication of Michael Cholowsky (Linda C. Casola) IE/S 3340 Horton's Lane, Town of Southold, County of Suffolk, NY IMichael Cholowsky I (516~ 477-1016 c~o ~. Kevin McLaughlin, 828 Front St., PO Box 803 CiTY/PO l STATE ZIP CODE Greenport, I NY !!944 L~ O~.NER~t~ SUSINESS TELEPHONE ( ) ADDRESS (no #) North Road, I CITYIPO STATE [ ZIPCODE !Hampton Bays, NY 1194~ DESCRI~IONOFACTION Establishment, c6nstruction and operation of a golf club consisting of golf driving raqge, miniature golf course and office building for above. Please Complete Each Question--Indicate N.A. if not applicable A. Site Description Physical setting of overall proiect, both developed and undeveloped areas. 1, Present land use: []Urban [-1Industrial r'lCommerciaJ r~,Forest ~Agriculture []Other 2 Total acreage of project area: 1 6.7-+ acres. APPROXIMATE ACREAGE Meadow or Brushland (Non-agricultural) Forested Agricultural (;ncludes orchards, cropland, pasture, etc.) Wetland (Freshwater or tidal as per Articles 24, ;'5 of ECL} Water Surface Area Unvegetated (Rock. earth or fill} Roads. buildings and other paved surfaces Other (Indicate type} qrass 3. What is predominant soil type(s) on project site? ~Residential (suburban) ~Rural (non-farm} 16.7+ PRESENTLY ~FTER COMPLETION acres acres acres acres acres acres acres acres acres acres acres acres acres 3 ± acres acres 13 ± acres a. Soil drainage: ~"~Well drained 100 % of site i-IModerately well drained __ % of site ~Poorly drained % of site b. If any agricultural land is involved, now many acres of soil are classified within soil group 1 through 4 of the Land Classification System~ n/a acres, (See 1 NYCRR 370). 4. Are there bedrock outcroppings on prolect site? C]Yes IL'INo a. What is depth to bedrock? unknown (in feet) 5. Approximate percentage of proposed proiect site with slopes: 90-10% 100 % [10-15% r~l$% or greater % 6. Is proiect substantially contiguous to, or contaio a building, site. or district, listed on the State or the National Registers of Historic Places? ~lyes ~No 7. Is project substantially contiguous to a site listed on the Register of National Natural Landmarks~ I-lyes ~No 8. What is the depth of the water table? 50-+ (in feet) 9. Is site located over a primary, principal, or sole source aquifer~ r~Yes 10. Do hunting, fishing or shell fishing opportunities presehtly ex st n the project area? []Yes ~No 11. Does proiect site contain any species of plant or animal life that is identified as threatened or endangered? f-lYes [~No According to Identify each species 12. Are there any unique or unusual land forms on the project site;? (i.e., cliffs, dunes, other geological formations) [~Yes ~No Describe 1~ Is the proiect site presently used by the community or neighborhood as an open space or recreation area? I~Yes I'~No If yes. explain 14. Does the present site include scenic views known to be important to the community? [~Yes ~No 15. Streams within or contiguous to project area: 13.oD_e a. Name of Stream and name of River to which it is tributary 16. Lakes. ponds, wetland areas within or contiguous to project area: a. Name D_one b. Size (in acres) 17. Is the site served by existing public utiJities;~ 1T1Yes C')No · a) If Yes. does sufficient capacity exist to allow connection? [~Yes C]No · b) If Yes, will improvements be necessary to allow connection? r-lyes ' 18. Is the site located in an agricultural district certified pursuant to Agriculture and Markets Law. ~rticle 2S-AA. Section 303 and 304~ ImYes 19. Is the site located in or substantially contiguous to a Critical Environmental Area designated pursuant to Article 8 of the ECL. and 6 NYCRR 6177 ~Yes 20. Has the site e~er been used for the disposal of solid or hazardous wastes? I"iYes :~No B. Project Description 1. Physicat dimensions and scale of proiect (fill in dimensions as appropriate) a. Total contiguous acreage owned or controlled by proiect sponsor ~ 6 o 7± a~res. b. Project acreage to be developed: 4+ acres initially; 4-+ c. Project acreage to remain undeveloped l~+ acres. d. Length of project, in miles: 1-1/a {If appropriate) e. If the project is an expansion, indicate percent of expansion proposed Ft/~. f. Number of off-street parking spaces existing 0 ; proposed 40 g. Maximum vehicular trips generated per hour ~0 (upon completion of proiect)? h. If residential: Number and type of housing units: ~/a One Family Two Family Multiple Family Initially Ult)mately i. Dimensions (in feet) of largest proposed structure ].8 ~ height; 30 ~ width; --__ j. Linear feet cf frontage along a public thoroughfare prolect will occupy is? __ acres ultimately. %; Condomlmum 40 length. 690-+ ft. 2. How much natural material (i.e.. rock. earth, etc.) will be removed from the site? 0 3. Will disturbed areas be reclaimed? r~Yes I-INo [-]N/A a. If yes. for what intend, purpose is the site being reclaimed? golf c].rivJ_D_c~ raD_~e b. Will topsoil be stockpiled for reclamation? ~]Yes I~No c. Will upper subsoil be stockpiled for reclamation? ~Yes , nNo 4. How many acres of vegetation (trees. shrubs, ground covers) will be removed from site? 3+ acres $. Will any mature forest (over 100 years old) or other,locally-important vegetation be removed by this project? []Yes ~No I 3-4 6. If single phase project: Anticipated period of construction 7. If multi-phased: n/a a. Total number of phases anticipated Inumber). b. Anticipated date of commencement phase 1 c. Approximate completion date of final phase d. Is phase 1 functionally dependent on subsequent phases? 8. Will blasting occur during construction? []Yes R~No 9. Number of jobs generated: during construction ].2 10. Number of jobs eliminated by this project 0 11. Will project require relocation of any projects or facilities? months. (including demolition). tons/cubic yards month year, (including demolition). month year. r-lYes I-]No ; after project is complete 4 r-lyes [~D,lo If yes, explain 12. Is surface liquid waste disposal involved? []Yes E~lo a. If yes, indicate type of waste(sewage, industrial, etc.) and amount b. Name of water body into which effluent will be discharged 13. Is subsurface liquid w~ste disposal involved? [~Yes r~No Type cesspools 14. Will surface area of an existing water body increase or decrease by proposal? I-lYes Explain ~,,No 15. Is project or any portion of project located in a 100 year flood plain? ¢-Iyes KqNo 16. Will the project generate solid waste? [~:Yes I-INo a. If yes. what is the amount per month 1 tons b. If yes. will an existing solid waste facility be used? r'~Yes DNo c. If yes, give name .C;ou~hold Town Landf;[];llocation Cutchoque d. Will any wastes not go into a sewage disposal system or into a sanitary landfill? r-lyes e. If Yes, explain 17. Will the project involve the disposal of solid waste? I~Yes I~lNo a. If yes. what is the anticipated rate of disposal? tons/month. b. If yes. what is the anticipated site life? years. 18. will project use herbicides or pesticides? []Yes :~No t9. Will project routinely produce odors (more than one hour per day)? [l-lYes I~No 20. Will project produce operating noise exceeding the local ambient noise levels? F'iYes 21. Will project result in an increase in energy use? :~Yes I-INo If yes . indicate type(s) e]_ec[ric 22. If water supply is from wells, indicate pumping capacity unknown gallons/minute. 23. Total anticipated water usage per day 300 gallons/day. 24 Does project involve Local. State or Federal funding? I-lYes i~No If Yes, explain ~]No ~r~No 4 L. 25. Approvals Required: City, Town, Village Board I-lYes I~No City, Town. Village Planning Board ,~Yes I/No City, Town Zoning Board [~Yes r-INo City, C°untv Health Department []Yes I/No Other Local Agencies []:]Yes [No1 Other Regional Agencies I-)Yes I-INo State Agencies EYes r-INo Federal Agencies I/Yes r-lNo C. Zoning and Planning Information Submittal Type Date Site plan approval special exception 1. Does proposed action involve a planning or zoning decision? ]{~?es C]No 2. If Yes. indicate decision required: []zoning amendment I/zoning variance [special use permit r-isubdivision F""2site Dian I/new/revision of master ptan fi]resource management plan r-lother 2. What is the zoning classification(s)of the site? A/c Zone District 3. What is the maximum potential development of the site if developed as permitted by the present zoning? upon cDt.special pending 4 What is the proposed zoning of the site? same S. What is the maximum potential d&velopment of the site if developed as permitted by the proposed zoning? 6 Is the proposed action consistent with the recommended uses in adopted local land use plans? ~2~[Yes 7. What are the predominant land use{s) and zoning classifications within a % mile radius of proposed action? mixed commercial office and residential fi]No 8 Is the proposed action compatible with adjoining/surrounding land uses within a V~ mile? ~::Yes []No 9 If the proposed action is the subdivision of land. how many lots are proposed? n/a a. What is the minimum lot size proposed? 10 Will proposed action require an'/ authorization(s) for the formation of sewer or water districts? 11 Will the proposed action create a demand for any community provided services (recreation, education, police. fire protection)? fi]Yes a. If yes, is existing capacity sufficient to handle projected demand? I/Yes I/No 12 Will the proposed action result in the generation of traffic significantly above present levels? a. If yes, is the existing road network adequate to handle the additional traffic? ~-;'(es ~No D. Informational Details Attach any additional information as may be needed to clarify your project· If there are or ma,/ be any adverse impacts associated with your proposal, please discuss such impacts and the measures which you propose to mitigate or avoid them. '- E. Verification I certify that the information provided above is true to the best of my knowledge. / · I?he action~n ,h~asta, Area. and you a~tate a.ency, compie e the Coastal As~sment Form beiore proceedin. w,th this assess~ 5 PLANNING BOARD MEMBERS Bennett Orlowski, Jr., Chairman George Ritchie Latham, Jr. Richard G. Ward Mark S. McDonald Kenneth L. Edwards Telephone (516) 765-1938 MEMORANDUM )-' ,~ ~' .. ,.~ PLANNING BOARD O~ICE TO~ OF SOU~OLD SCOTT L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 TO: FROM: DATE: RE: Gerard P. Goehringer, Chairman, Board of Appeals Bennett Orlowski, Jr., Chairman .~.~.~/~, May 21, 1991 Michael Cholowsky - Golf Driving Range & and Miniature Golf Course Appeal No. 4021 SE SCTM# 1000-55-1-9 The following is in response to your memorandum of April 10, 1991, in which you asked the Planning Board to take lead agency on the above referenced project. The Planning Board does not wish to be lead agent. We find that the proposed mix of uses (a driving range and a miniature golf course) cannot be considered a standard golf course. The proposed uses might well be considered accessory to a standard golf course, but they do not constitute a golf course in the traditional sense. Therefore, while a standard membership club golf course is an allowed use in the A-C Agricultural Conservation district, the proposed uses are not. The proposed uses could be best characterized as commercial recreational facilities. The Zoning Code allows commercial recreational facilities in the General Business District. However, it specifies that they must be fully enclosed. This type of recreational facility is not one that is typically enclosed. And the current proposal does not call for it to be enclosed. Given the fact that the use does not appear to be allowed in any zone except as an enclosed facility, the Planning Board recommends that the application be denied without prejudice. Page 2 Michael Cholowsky Perhaps there should further investigation by the Planning and Zoning Committee as to whether the Zoning Code's definition of commercial public recreational facility should be amended to include the uses proposed by Mr. Cholowsky. If the application is denied, it will not be necessary to proceed with the environmental review. 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 /0: Pl. Bd. 4/11/91 SEQRA UNLISTED ACTION DECLARATION Appeal No. 4021 SE Project Name: Michael Ch0]0wsky county Tax Map No. 1000- 55- 1- 9 Location of Project: E/$ H0rt0n's lane, S0uth0]d, NY Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 April 10, 1991 Relief Requested/Jurisdiction Before This Board in this Project: Special Exception for Non-profit golf driving range and private mi niqt u.r~ golf Thls mo~ice is issued pursuant to Part 617 Of the implementing regulations pertaining to Article 8 of the N.Y.S. Environmental Quality Review Act of the Environmental Conservation Law and Local Law #44-4 of the Town of Southold. An Environmental Assessment (Short) Form has been submitted with the subject application indicating that no significant adverse environmental effects are likely to occur should be project be implemented as planned, and: { } this Board wishes to assume Lead Agency status and urges coordinated written comments by your agency to be submitted with the next 20 days. { } this Board has taken jurisdiction as Lead Agency, has deemed this Board of Appeals application to be an Unlisted SEQRAAction, and has declared a Negative Declaration'for'the following reasons: a. An Environmental Assessment has been submitted and evaluated, and/or b. An inspection,of the property has been made, or c. Sufficient information has been furnished in the record to evaluate any possible adverse affect of this project as filed, and/or d. This application does not directly relate to new construction or on-site improvements. {)~} this Board refers lead agency status to your agency' since the Board of Appeals does not feel its scope of jurisdiction is as broad as the Planning Board concerning site change's and elements under the site plan reviews.' The area of jurisdiction by the Board of Appeals is not directly related to site improvements or new buildings. (However, 'if you do not wish to as.sume lead agency status within 15 days of this letter, we will assume. you .have waived same, and we will be required to proceed as Lead Agency.) :For further information, please contact the Office Df the Board of Appeals, Town Hall, Main Road, Southold, NY 11971 at (516) 765-1809. 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 SCOTT L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 MEMORANDUM TO: FROM: RE: Gerard P. Goehringer, Chairman Zoning Board of Appeals Bennett Orlowski, Jr., Chairman~/~ ZBA Appeals # 3990 Cholowsky/Casola request to operate a driving range and miniature golf course for profit in an Agricultual/Conservation zoning district. DATE: January 24, 1991 The Planning Board has reviewed the above-noted appeal which requests a variance from a condition of the Special Exception for membership clubs that it be a not-for-profit enterprise. The Planning Board respectfully suggests that this request be denied. The foremost reason for this recommendation is that the applicant requests relief from a condition of a Special Exception. However, the Zoning Code does not grant the Zoning Board the power to modify a condition of a Special Exception by granting a variance from same. Consequently, the applicant's assertion (that the not-for-profit clause of the Code is illegal), is a matter that clearly belongs before the legislative body that enacted that requirement--the Town Board. Reference is made to the attached copy of Section 24.15 New York Zoning Law and Practice. Third Edition. Robert M. Anderson. Volume 2. Pages 295-296. of The Board also notes the following information for the record: 1. The proposed uses (driving range and miniature golf course) ARE NOT ALLOWED USES in the Agricultural Conservation district, while a typical golf course is a permitted use by Special Exception. 2. Commercial businesses, other than farmstands affiliated with working farms, and special community facilities such as hospitals, do not belong in an Agricultural-Conservation district. 3. Contrary to statements and supporting documentation found in Mr. McLaughlin's Memorandum of Law, the issue is not that the zoning code restricts the form of ownership. The issue is that the Zoning Code implements the concept that commercial uses are not appropriate uses to be located within Agricultural-Conservation zones. A for-profit use can be, because of its commercial nature, more intensive than a not-for-profit use. 4. The cases cited in McLaughlin's Memorandum of Law are not applicable here because they make specific reference to a permitted use. The uses proposed by this appeal are not permitted within the "A-C" district, unless the Zoning Board is prepared to issue an interpretation that the proposed for-profit driving range and miniature golf course uses qualify as "...an annual membership club catering exclusively to members and their guests..." Further, the cases dealt with attempts to exclude condominium ownership of property or dwelling units in favor of ownership by a single owner. In both cases, the decision made it clear that if the use was permitted, the type of ownership (condominium versus single) could not be grounds for preventing the use. In this case, the use is not permitted. In closing, it is felt that the proposed uses would be more appropriately located within an existing business-zoned district. APPLICATION OF MICHAEL CHOLOWSKY, TO THE ZONING BOARD OF APPEALS, TOWN OF SOUTHOLD ,'ILL lqEMORANDUM OF LAW X FACTS. ~ This is an application to the Southold Town Zoning Board of Appeals for a variance to the Southold Town Zoning Ordinance, Article III, Section 100-31B(7)(c) concerning the proposed establishment, construction and operation of a golf driving range, a miniature golf course and building with office accessory and incidental thereto. The subject premises is known as 3340 Horton's Lane, Southold, New York, bears County Tax Map Parcel I.D. No. 1000-55-1-9 and contains 16.7± acres. Said property is owned by Lorindo C. Casolo and the applicant is the holder of a long-term lease thereon with an option to purchase. Applicant has applied to the Southold Town Building Department for a building'permit, but a Notice of Disapproval has been issued, stating that the applicant requires both o special exception and a variance. Section 100-31B(7)(c) states that any of the special exception clubs and uses allowed within said Section ...shall not be conducted for profit as a business enterprise. It is the applicant's contention that the purported limitation of such special exception uses to not-for-profit enterprises is clearly illegal and that o variance should be granted allowing the applicant to conduct such o use os o business enterprise for profit. Article 16 of the Town Law regulates zoning and planning by the various towns within the State of New York. Section 261 thereof establishes the power granted to the towns by the State of New York and reads as follows: For the purpose of promoting the health, safety, morals, or the general welfare of the community, the town board is hereby empowered by ordinance to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes; provided that such regulations shall apply to and affect only such part of a town as is outside the limits of any incorporated village or city; provided further, that all charges and expenses incurred under this article for zoning and planning shall be a charge upon the taxable property of that part of the town outside of any incorporated village or city. The town board is hereby authorized and empowered to make such appropriation as it may see fit for such charges end expenses, provided IlOWever, that such appropriation shall be the estimated charges and expenses less fees, if any, collected, and provided, that the amount so appropriated shall be assessed, levied and collected from the property outside of any incorporated village or city. Such regulations may provide that a board of appeals may determine and vary their application in harmony with their general purpose and intent, and in accordance wlth general or specific rules therein contained. Nowhere in said section is there any grant of power to regulate the form of ownership of property within the context of the zoning and planning authority of a town. In fact, cases are legion that such a power to regulate the form of ounershiP does not and cannot exist. Indeed, it is a fundamental ruie that zoning deais baSiCQlly with iand use and not with the person ~ho owns or occupies it. (See BEtter of Dexter V. Town Board, 36 N.Y. 2d 102, 105, 365, N.Y.S 2d 506, 324 N.E. 2d 870; .o~cor~l, ~LtLtELQf HEM3J%~, 27 N.Y. 2d 592, 313 N.Y.S. 2d 407, 261 N.E. 2d 406, Affg 35 A.D. 2d 923, 307 N.Y.S. 2d 603; Allen V. Town of North H~lpstea~l, 103 A.D. 2d 144, 146, 478, N.Y.S. 2d 919; ' ' , 93 A.D. 2d 883, 461 N.Y.S. 2d 414; See, Batter of park W. V~tl_As$oc~- V. Abra~, 65, N.Y. 2d 716, 492 N.Y.S. 2d 27, 481 N.E. 2d 567). Annexed hereto are copies of the ~orth Fork .' ' and ~iLSJ~?rope_Ltv C~~y--of Rye decisions. It is absolutely clear and certain from the foregoing cases that the attempt in Section 100-31B(7)(c) of the Zoning Code to restrict the allowable special exception uses to not-for-profit entities is a legal nullity. As expressed in all of those cases, it is use rather than form of ownership that is the proper concern and focus of zoning and planning regulations. Tl~e decisions of all levels of courts in this State, including the Court of Appeals (the highest level court in this State) are uniform in holding that a zoning ordinance may not regulate the form of ownership of property, as distinguished from regulating the use of said property. CON~LUSZQN The Southold Toun Zonlng Board of Appeals should grant the requested variance to allan the applicant to establish, construct and operate a golf driving range, miniature golf course and building ~ith accessory offlce thereto under any form of oNnership, including a buslness enterprise for proflt, Nhich said applicant deems appropriate. Respectfully submitted, J. KEVIN MCLAUGHLIN Attorney for Applicant, Mlchael CholoNsky 828 Front Street, PO Box 803 Greenport, NeN York 1194q (516)477-1016 Wickham, Wickham & Broiler, P.C., Mattituck (Erie J. Bressler, Mattituck. of counsel), for appellant. pcener & Posner, Mount Vernon (Linda S. Jamiesen, Mount Vernon, of counsel), for William Sirignano, recoiver-respendent. Before GIBBONS, J.P., and GULOTTA, O'CONNOR and NIEHOFF, J J- MEMORANDUM BY THE COURT. In an action, inter alia, for a declaratory judgment to determine the ownership of a publishing house, defendant appeals from an order of the Supreme Court, Westebes- ter County, entered September 9, 1982, which, upon the respondent receiver's mo- tion to punish him for contempt of a prior order of the same court, adjudged him in contempt and permitted him to purge him- serf thereof by, inter alia, rendering an account. Order reversed, without cesta or disburse- merits, and matter remitted to Special Term for further proceedings consistent herewith. [1, 2] The record before this court fails to indicate whether defendant was ad- judged guilty of civil or criminal contempt, and at the hearing which must be conduct- ed, the course being pursued must be made clear. Adjudging defendant to be in crimi- nal contempt is not warranted on this rec- ord, as there is no finding that the alleged disobedience of the prior order of the court was willful, and similarly an adjudication of civil contempt is not warranted because there is no finding that defendant's actions were calculated to or actually did defeat, impair or prejudice the rights and remedies of the plaintiff (see Matter of Ross v. Sher- wood Diversified Servs., 88 A.D.2d 936, 450 N.Y.S.2d 872). Also, defendant denied that he had failed to turn over any assets of Queens House, as was alleged by the receiver. Questions of fact were raised on that and other issues that could not be resolved without a hear- lng (see Crisona v. Eastern Props. Improve- ment Corp., 27 A.D.2d 717, 717-715, 277 N.Y.S.2d 477; Kamen v. Kamen, 13 A.D.2d 985, 216 N.Y.S.2d 715). NORTIt FORK MOTEL, INC., Respondent, Charles GRIGONIS, Jr. et al., constituting the Zoning Board of Appeals of the Town of Southold et al., Appellant& Supreme Court, Appellate Division, Second Department. April 25, 1983. Town zoning beard of appeals appealed from a judgment of the Supreme Court, Suffolk County, Gerard, J., which annulled determinations of building inspectors and a determination of the zoning board of ap- peals which denied applications for permis- sion to change the form of ownership of certain promises. The Supreme Court, Ap- pellate Division, held that special term cot- roctiy concluded that the conversion of ownership of the subject property from a corporate form to a condominium form was not violative of the town zoning ordinance provided the property's use as a motel re. rosined unchanged. Affirmed. 1. Zoning and planning Z~ning ordinances cannot be employed by a municipality to exclude condominiums or discriminate against condominium form of ownership, for it is use rather than form of ownership that is proper concern and focus of zoning and planning regulation~ McKinney's Town Law § 261. 2. Zoning and planning Special term correctly concluded that conversion of ownership of property from corporate form to condominium form was not violative of town zoning ordinance vided property's use as a motel remained unchanged. McKinney's Town Law § & Riverhead Esseks, head counsel), Before MEMOtq In a CP peal is Court which December of the 1981, for. ] ership of Judgme [1, 2] ployed minitims o minium rather proper co planning wood Vii. Bridge Park, 113 Nor does valid o£ Miami Chapel 41S). cencluded of the form to a ~ of the Southold, iLse as a ~ MEDARIS v. VOSBURGH Smith, Finkelstein, Lundberg~ Crimmins & Yakabeski, Riverhead (Frank A. Islet, Riverheed, of counsel), for appellants. Esseks, Hefter, Cuddy & Angel, River- head (Stephen R. Angel, Riverhead, of counsel), for respondent. Before MANGANO, J.P., and GIBBONS, BRACKEN and NIEHOFF, JJ. MEMORANDUM BY THE COURT. In a CPLR article 78 proceeding, the ap- peal is from a judgment of the Supreme C~urt, Suffolk County, entered July 1, 1982, which annulled determinations of building inspectors George H. Fisher and Edward F. Hisderman, dated February 13, 1980 and December 22, 1980, respectively, and a de. termination of the Zoning Board of Appeals of the Town of Seuthold, dated June 25, 1981, which denied petitioner's applications for permission to change the form of own- ership of certain premises. Judgment affirmed, without costs or dis- hursements. [1, 2] Zoning ordinances cannot be em- pl?y~d by a municipality to exclude condo- r~imums or discriminate against the condo- minium form of ownership, for it is use r~ther than form of ownership that is the proper concern and focus of zoning and plsnning regulations (see Town Law, § 261; .~faplewoed Vii. Tenants Assn. v. Maple- wood Vii., 116 N.J.Super. 372, 282 A.2d 428; Bridge Park Co. v. Borough of Highland Park, 113 N.J.Super. 219, 273 A.2d 397). .~'or does the mere change in the type of o~rsership result in the destruction of a v~lid existing nonconforming use (see City of Miami Beach v. Aries King Cole Condo- ~iniurn Assn., 302 Se.2d 777 [Flu.i; Graham Court Assoc. v. Town Council of Town of Chspel Hill, 53 N.C.App. 543, 281 S.E.2d 418). Accordingly, Special Term correctly ~oncluded that the convemion of ownership o.r the subject property from a corporate form to a condominium form is not violative ~f the zoning ordinance of the Town of ~uthold, provided the property's present ~e as a motel remains unchanged. 415 93 A.D.2d 882 Virginia C. MEDARIS, Respondent, Lee Frederick VOSBURGH, et al., Defendants, Bruce Robert Heinzon et al, Appellants. Supreme Court, Appellate Division, Second Department. April 25, 1983. In medical malpractice action to recov- er damages for personal injuries, plaintiff refused to answer certain interrogatories propounded by defendant. The Supreme Court, Suffolk County, McCarthy, J., denied defendant's motion to compel answers to interrogatories, and defendant appealed. The Supreme Court, Appellate Division, held that trial court erred in denying de- fendant's motion to compel on basis that interrogatories did not ask for facts but for opinions and amplifications of allegations of negligence, especially where plaintiff had failed to make timely motion to strike chal- lenged interrogatories. Order reversed; motion to compel an- swers granted. 1. Pretrial Procedure ~284, 305 In medical malpractice action, trial court erred in denying defendant's motion to compel plaintiff to answer interrogato- ties on basis that such interrogatories did not ask for fucts but for opinions and ampli- fications of allegations of negligence, espe. cially where plaintiff had failed to make timely motion to strike challenged interrog- atories. McKinney's CPLR 3101(a), 3124, 3131, 3133(a). 2. Pretrial Procedure ~:~242 Purpose of interrogatories is distinct from that of bill of particulars; while inter- LY.2d 942, 298 N.Y.S.2d 724, 246 N.E.2d ,27). 109 A.D.2d 814 YGL & lh PROPERTY CORP., Appellant-Respondent, The CITY OF RYE, et al., Respondents-Appellants. Supreme Court, Appellate Division, Second Department. March 18, 1985. FGL & L PROPERTY CORP. v. CITY ¢)F ItYE miniums, was invalid, since it constituted improper regulation of form of ownership of property. 3. Zoning and Planning Municipality does not have power to regulate manner of ownership of legal es- fate, as it is use rather than form of owner- ship that is proper concern and focus of zoning and planning regulations. Action was brought seeking to have declared unconstitutional an ordinance which purported to create new zoning dis- trict, applicable only to one person's 22- acre lot, and which directed that purported district be maintained in single ownership and that any development of property be limited to residential condominiums. The Supreme Court, Westchester County, John C. Marbach, J., denied injunctive relief against enforcement of ordinance pending hearing to determine if ordinance was con- fiscatory, and appeal was brought. The Supreme Court, Appellate Division, held that ordinance was invalid since it consti- toted improper regulation of form of own- ership of property. Reversed. 1. Zoning and Planning Zoning is concerned with use of land, and not with person who owns or occupies it. 2. Zoning and Planning ¢~61 Ordinance which purported to create new zoning district, applicable only to one person's 22-acre lot, and which directed that purported district be maintained in single ownership and that any development of property be limited to residential condo- Well, Gotshal & Manges, New York City (Peter Grueaberger, Lesley E. Goldberg and Robbie Narcisse, New York City, of counsel), and Berger, Steingut, Weiner, Fox & Stern, New York City (Theodore S. Steingut, New York City, of counsel), for appellant-respondent (one brief filed). Richard M. Gardella, Corp. Counsel, Rye, for respondents-appellantS. Meighan & Necarsulmer, Mamaroneck (Garrison R. Corwin, Jr., Mamaronick, of counsel), for friends of Marshlands, Inc. and Federated Conservationists of West- chester County, Inc., amici curiae. Before LAZER, J.P., and MANGANO, BRACKEN and NIEHOFF, JJ. MEMORANDUM BY THE COURT. In an action, inter alia, for a judgment declaring Rye City Code § 197-13.2 invalid and unconstitutional, plaintiff appeals, as limited by itS brief, from so much of an order of the Supreme Court, Westehester County, entered March 5, 1984, as denied injunctive relief against the enforcement of that section of the city code pending a hearing to determine if said section was confiscatory with respect to plaintiff's property, and defendantS cross-appeal from so much of the same order as denied their motion for summary judgment declaring said section of the city code valid. Order reversed insofar as appealed from, on the law, with costS, the second and third decretal paragraphs thereof are deleted, and it is declared that Rye City Code § 197-13.2 is invalid as it constitutes an improper regulation of the form of owner- ship of property. create a new zoning district, applicable only to plaintiff's 22-acre lot. The ordinance further directs, among many other things, that the purported district must be main- mined in single ownership, and further pro- vides that any development of the property, which is severely restricted, be limited to residential condominiums. [1] As a fundamental principle, zoning ~/ is concerned with the use of the land, and not with the person who owns or occupies it (see, e.g., Matter of Dexter v. Town Bd. of Town of Gates, 36 N.Y.2d 102, 105, 365 N.Y.S.2d 506, 324 N.E.2d 870; Matter of Weinrib v. Weisler, 33 A.D.2d 923, 307 N.Y.S.2d 603, affd. 27 N.Y.2d 592, 313 N.Y. S.2d 407, 261 N.E.2d 406; North Fork Mo- tel v. Grigonis, 93 A.D.2d 883, 461 N.Y. S.2d 414; Allen v. Town of North Hemp- stead, 103 A.D.2d 144, 478 N.Y.S.2d 919). / [2,3] The instant ordinance, which pur- ports to direct how the property may be held to the exclusion of all other forms of ownership, must fail because, as a general principle, a municipality does not have the power to regulate the manner of ownership of a legal estate, as "it is use rather than form of ownership that is the proper con- cern and focus of zoning and planning reg- ulations'' (North Fork Motel v. Grigonis, supra; see also McHenry State Bank v. City of McHenry, 113 lll. App.3d 82, 68 Ill. Dec. 615, 618, 446 N.E.2d 521,524; CHR Gen., Inc. v. City of Newton, 387 Mass. 351, 439 N.E.2d 788, 791; Bridge Park Co. v. Borough of Highland Park, 113 N.J.Su- per. 219, 273 A.2d 397, 399; County of / Fayette v. Cossell, 60 Pa. Cmwlth. 202, 430 A.2d 1226, 1228; Graham Ct. Assoc. v. Town Council of Town of Chapel Hill, 53 N.C.App. 543, 281 S.E.2d 418). Although ~ in the majority of the above eases the gen- eral principle was invoked to prevent a municipality from excluding the condomin- ium form of ownership, and here the in- stant ordinance permits that form of own- ership to the exclusion of all others, the result is the same. The city here has at- tempted to dictate how property may be owned, and that is exactly what it is not authorized to do. 109 A.D.2d 815 FIRE ISLAND PINES, INC., Respondent, COLONIAL DORMER CORP., Appellant. Supreme Court, Appellate Division, Second Department. March 18, 1985. Default judgment was entered against roofing company in action for damages al- legedly resulting from defective work. The Supreme Court, Nassau County, John W. Burke, J., denied roofing company's mo- tion to vacate, and it appealed. The Su- preme Court, Appellate Division, held that where complaint was properly forwarded to insurer, which neither filed an answer nor denied coverage, roofing company was enti- tled to have resulting unintentional default judgment vacated, particularly in light of evidence of meritorious defense, and ab- sent claim of prejudice by opposing party. Order reversed; motion to vacate granted. Judgment ~143(3) Where insured roofing company for- warded complaint alleging defective work to its insurer through broker, broker a.~- sured roofer that insurer would provide defense, and insurer neither filed answer nor disclaimed coverage, roofer was enti- tled to have resulting unintentional default judgment vacated, particularly in light of affidavits demonstrating meritorious de- fense, and absent claim of prejudice by opposing party. Jay Berliner, Massapequa, for appellant. Harold F. Datum, Mineola, for respon- dent. 66 N.Y,2,d III (61 N.y.2d 481, 494, 474 N.Y.S.2d 699, 463 N.E.2d 15 [absent exercise of discretion by the Appellate Division so egregious as to amount to an abuse of discretion as a mat- tsr of law, its exercise of discretion is not reviewable by ual). The factors listed by the Appellate Division as the basis for its reduction of the award to 25% make clear that there was no abuse of discretion as a matter of law. Nor was the Appellate Di- vision required by DomeStic Relations Law § 256(B)(5)(g) to analyze each of the factors stated in subdivision (5)id) and give reasons as to each, it being sufficient under ubdivision (5)(g) that it "set forth the factors it considered and the reasons for its decision" (Kobylack v. Koblflack, 62 N.¥.2d 399, 403, 477 N.Y.s.2d 109, 465 N.E.2d 829). Plaintiffs remaining arguments are ei- ther not before us on this appeal, unpre. served or without merit. [91 On plaintiffs appeal, the order of the Appellate Division should be affirmed, Defendant's cress appeal without costs, for want of aggrieve- should be dismissed ment, the modification made by the Appel- late Division having been in his favor. FGL & L i,RoI'EWI~' CORP. v. 1'1'5' O1" RYE 485 N.E.Id 986 _Lu~FGL & L PROPERTY CORP-, Respondent, CITY OF RYE et al., Appellants- Court of Appeals of New York. Oct- 24, 1985. WACHTLER, CJ., and 3ASEN, MEYER, SIMONS, KAYE, ALEXANDER and TI- 'tONE, · ]J., concur in Per Curiam opinion. Property owner brought action seeking an injunction against enforcement of local zoning law. The Supreme Court, Special Term, Westehester County, Marbach, J., held the ordinance valid, and appeal was taken. The Supreme Court, Appellate Divi- sion, 109 A.D.2d 814, 486 N.Y.S.2d 333, reversed, and appeal was taken. The Court of Appeals, Meyer, J., held that noth- ing in zoning enabling provisions of Gener.- al City Law, historical preservation preW- sions of General Municipal Law nor land- marks preservation provision of city code empowered city to mandate the manner in which property may be owned or held or to impose upon the owner of a tract contain- ing historic structures, or purchasers of properties neighboring the tract, the cost of rehabilitation or enhancement of the properties. Affirmed. On review of submissions pursuant te 1. Zoning and Planning ~232 ~ectisn 500.4 of the Rules of the Court of Zoning laws are to be given strict con- Appeals (22 NYCRR 500.4): on plaintiff's struction because they are in derogation of appeal, order affirmed, without costs. De- common-law rights. fendant's cross appeal dismissed, without 2. Zoning and Planning ~=21 There being no inherent power to enact zoning or land use regulation, an ordinance or local law provision for which legislative delegation of power cannot be found is ultra vires and void. 3. Zoning and planning Power to adopt zoning provisions ~ot expressly forbidden by enabling authonza' tion may be implied where there exists independent justification for provisions within the spirit of the enabling legislation- NEW YORK SUPPLEMENT. 2d SERIES 4. Zoning and Planning ~61, 63 Neither enabling provision for resi- dential zoning in cities, McKinney's Gener- al City Law § 20, subd. 24, nor section containing cluster zoning authorization ap- plicable to city, McKinney's General City Law § 37, empowered city to enact zoning law requiring, inter alia, that lot containing two historic buildings have a minimum area, remain in single ownership, buildings not contain more than three and six units, respectively, and that owner or purchasers of properties neighboring tract supply cost of rehabilitation or enhancement, of the properties. 5. Zoning and Planning ~61 Neither historical preservation provi- sions in section of General Municipal Law, McKinney's General Municipal Law § 96-a, nor landmarks preservation provision of city code authorized city to enact zoning law mandating that entire 22-acre district remain in single ownership with developer to rehabilitate exteriors of two historic buildings, and proscribing use of any new dwelling unit until that rehabilitation had been accomplished, thereby effectively re- quiring that cost of rehabilitation be shared by owners in district of units other than buildings in question. Henry J. Smith and James G. Fine, White Plains, for appellants. ..h32Peter Gruenberger, Lesley E. Gold- berg, Robbie Narcisse and Theodore S. Steingut, New York City, for respondent. .LI3~OPINION OF THE COURT MEYER, Judge. Nothing in the zoning enabling provi- sions of the General City Law~ the histori- cal preservation provisions of the General Municipal Law or the Landmarks Preserva- tion provisions of the Rye City Code em- powers the City to mandate the manner in which property may be owned or held or to 1. Title has apparently been !ransferred back to the predecessor by plaintiff, but the fact that there has been no substitution of parties docs impose upon the owner of a ta~et contain- ing historic structures, or purchasers of properties neighboring the tract, the cost of rehabilitation or enhancement of the properties. The order of the Appellate D~- vision should, therefore, be affirmed, with costs. I Plaintiff is the owner in fee of a parcel of land situated in the City of Rye (City) of approximately 22 acres on which are locat- ed the Jay Mansion, built in 1838 by Peter Jay, son of John Jay, the first Chief Justice of the United States Supreme Court, and another building known as the Carriage House, built around 1912 in the Colonial Revival style. There is some dispute b~ tween the parties concerning the historic or landmark significance of the Carriage House, but for purposes of this opinion we assume that both buildings have such sig- nificance. It is unnecessary to detail the negotiations carried on from 1979 until 1983 between the City and plaintiff's prede eessor in title ~ and between the City and plaintiff, and the various rezoning propos- als that were made during those negotia- tions, although a few pertinent and uncon- tested facts developed during those nego~ ations are referred to below. When acquired by plaintiff's predecessor the property was zoned R-2, as were neigh. boring properties, some of which were used, however, for public purposes or of- rice use under nonconforming uses. R-2 zoning permit~ single-family detached homes on not less than one-half-acre plots, and plaintiff's property would have accom. modated 88 such dwellings. In June 1933, the City Council adopted Local Law No. 5-1983, which added a new section 197-13.2 to the City Code creating the Alansten Landmarks Preservation District (LPD-A). As the revised zoning map demonstrates, and defendants do not deny, the only prop erty zoned LPD-A was plaintiff's 22 acres. Plaintiff then began the present action, not moot the appeal (pacific Bh, d. Assoc. v. City o[Long Beach, 38 N.Y.2d 766, 381 N.Y.S.2d 55, 343 N.E.2d 772). ultra vires, spot zoning ants ing the local wise cross-moved f, in its favor. there were ' aa a hybrid was not inval ing and had 1 accordance w plan, and that not lie with Defendants' r demonstrated section nomic benefit cross motion ~ ed to the App its brief, from as to the sect fendants appt order as direc' and denied si the section v~ Appellate Di~ N.Y.S.2d 333, ferrcd only t section, revert "invalid as it ~ lation of the ~ ty.' (109 A.I 333.) We ag~ consider the t the zoning ent the City actec:, late ownershil? tag m the h~st of the General marks Prese~~ Code, upon whether junction with'~~ 66 N.Y.2d IlS which in seven causes of action sought an injunction against enforcement of the sec- rios, a declaration that_LL~4it is invalid as ultra vires, unconstitutional, site specific, spot zoning and not in accordance with a well-considered zoning plan, and money damages under 42 U.S.C. § 1983. Defend- ants moved for summary judgment declar- lag the local law constitutional and other- wise dismissing the complaint. Plaintiff cross-moved for partial summary judgment in its favor. Supreme Court held that there were issues concerning constitution- ality requiring trial, but that the ordinance, as a hybrid containing elements of both zoning and historic preservation regulation, was not invalid as site-specific or spot-zon- lng and had not been shown not to be in accordance with the City's comprehensive plan, and that the section 1983 action would not lie with respect to legislative action. Defendants' motion for summary judgment was, therefore, granted unless plaintiff demonstrated at a plenary trial that the section prevented it from realizing any eco- nomic benefit from its property. Plaintiff's cross motion was denied. Plaintiff appeal- ed to the Appellate Division, as limited by its brief, from Special Term's order except as to the section 1983 cause of action; de- fendants appealed from so much of that order as directed a trial on constitutionality and denied summary judgment declaring the section valid and constitutional. The Appellate Division, 109 A.D.2d 814, 486 N.Y.$.2d 333, in a memorandum which re- ferrsd only to the zoning aspect of the ~ection, reversed and declared the section "invalid as it constitutes an improper regu- lation of the form of ownership of proper- ry." (109 A.D.2d, at p. 815, 486 N.Y.S.2d 333.) We agree that it is unnecessary to consider the constitutional issues and that the zoning enabling provisions under which the City acted do not authorize it to regu- late ownership, and hold further that noth- ing in the historical preservation provisions of the General Municipal Law or the Land- marks Preservation chapter of the City Code, upon both of which the City relies, whether considered separately or in con- junction with the zoning enabling provi- FGL & L PROPERTY CORP. v. CITY OF RYE 323 sions of the General City Law, empowered the City to enact the section in its present form. We, therefore, affirm. II The section as enacted declares that in order to provide for flexibility in the City's zoning "so that the significant historic buildings, the Jay Mansion and the Car- tinge House, and site features which char- acterize this site * * * are preserved for the future and that new construction be undertaken with care and consideration for these features and the environment", the new district is adopted. Subdivision B es- tablishes standards for the new district, which include that "It]he lot as approved shall have a minimum area of twenty-two (22) acres and shall be and_l.t~sremain in single ownership"; that "It]he exterior of the Jay Mansion and Carriage House shall be rehabilitated and the interiors converted to residential use", for the Jay Mansion not to exceed three units and for the Carriage House not to exceed six; that there be a trapezoidal view way 90 feet in width at the rear of the Jay Mansion and 300 feet in width at the southerly property line; that the new dwelling units may not be occupied until the exteriors of the Jay Mansion and the Carriage House have been restored and the interiors converted to residential use and available for occupancy and that a bond be posted to assure such rohabilita- tion and conversion; and that the applica- tion for site plan approval be accompanied by, among other things, a draft condomin- ium offering statement together with a draft of an easement and/or agreement for perpetual maintenance of the exteriors of the Jay Mansion and the Carriage House. Neither thc statutes authorizing enactment of zoning provisions nor those dealing with historic landmarks empower the City Coun- cil to adopt a local law with such provi- sions, nor does anything in the Landmarks Preservation chapter of the City Code sup- port its so doing. A [1-3] Zoning laws are to be given a strict construction because they are in der- 3Z4 ogation of common-law rights (Matter of .~0 E. 102nd St. Corp. v. Murdock, 285 N.Y. 298, 304, 34 N.E.2d 329; see, Matter of Frishman v. Schmidt, 61 N.Y.2d 823, 473 N.Y.S.2d 957, 462 N.E.2d 134). More- over, there being no inherent power to ea- act zoning or land use regulation, an ordi- nance or local law provision for which leg[s- lative delegation of power cannot be found is ultra vires and void (Matter ofKamhi v. Planning Bd., 59 N.Y.2d 385, 465 N.Y.S.2d 865~ 452 N.E.2d 1193). Power to adopt provisions not expressly forbidden by the enabling authorization may, however, be implied where there exists independent ins- tffication for provisions within the spirit of the enabling legislation (Collard ~. Incor- porated ViL of Flower Hill, 52 N.Y.2d 594, 602~ 439 N.Y.S.2d 326, 421 N.E.2d 818). [4] The enabling provision for res[- dent[al zoning in cities is General City Law § 20(24).2 That subdivision empowers a city "To regulate and limit the height, bulk and location of buildings hereafter erected, to regulate and determine the area of yards, courts and other open spaces, and to regulate the density of lu6popuintion in any given area, and for said purposes to divide the city into districts. Such regulations shall be uniform for each class of buildings throughout any district, but the regulations in one or more districts may differ from those in other districts. Such regulations shall be designed to secure safety from fire, flood and other dangers and to pro- mote the public health and welfare, includ- lng, so far as conditions may permit, provi- sion for adequate light, air, convenience of access, and the accommodation of solar en- ergy systems and equipment and access to sunlight necessary therefor, and shall be 2. Subdivision 25 authorizes regulation and re- striction of trades and industries and. therefore. is not a source of power for the local law under consideration. In any cvem, it provides no greater support for Local Law No. 5 than subdi- vision 24, for it authorizes no more than control of where "buildings, designed for specific us~s" may be located and of "the uses for which buildings may not bc erected or altered." 3. City o! Miami Beach v. Aden King Cole Condo- minium Assn. (302 So.2d 777 [Fla], ccrt denied 308 So.2d 118); CHR Gen. v. City o! Newton made with reasonable regard to the charac- tor of buildings erected in each district, the value of land and the use to which it mag be put, to the end that such regulations may promote public health, safety and wel- fare and the most desirable use for which the land of each district may be adapted and may tend to conserve the value of buildings and enhance the value of land throughout the city." (Emphasis supplied.) Nothing in that subdivision speaks to ownership rather than use, and while it does not expressly forbid provisions re[st- ing to ownership, the City suggests noth- ing within the spirit of zoning legislation generally or this subdivision specifically that offers justification for implying such power. Indeed, the cases are legion, in this State and elsewhere, which hold that "zon- ing * ' ° in the very nature of things has reference to land rather than to owner" (Vernon Park Realty v. City of Mount Vernon, 307 N.Y. 493, 500, 1.21 N.E.2d 517) and that it is a "fundamental rule that zoning deals basically with land use and not with the person who owns or occupies it" (Matter of Deztor v. Town BcL, 36 N.Y.2d 102, 105, 365 N.Y.S.2d 506, 324 N.E.2d 870; accord, Matter of Weinrib v. Weisler, 27 N.Y.2d 592, 31.3 N.Y.S.2d 407, 261 N.E.2d 406, affg. 33 A.D.2d 923, N.Y.S.2d 603; Allen v. Town of N. Hemp- stead, 1.03 A.D.2d 144, 1.46, 478 N.Y.S.2d 91.9; North Fork Motel v. Grigonis, 93 A.D.2d 883, 461 N.Y.S.2d 41.4; see, Matter of Park W. Vii. Assoc. ~. Abrams, 65 N.Y.2d 71.6, 492 N.Y.S.2d 27, 481. N.E.2d 567). Most of the out-of-State cases hold, as did the North Fork Motel case, that a zoning ordinance cannot be used to exclude a condominium.3 The City correctly (387 Mass. 351, 439 N.E.2d 788); Bridge Park Co. v. Borough o[ Highland Park ( 113 N J.Super. 219, 273 A.2d 397); Graham Ct. Assoc. v. Town Council (53 N.C.App. 543, 281 S.E.2d 418): McHenry State Bank v. City o[ McHenty lll&pp.3d 82, 68 III.Dec. 615, 446 N.E.2d 521): Maplewood ViL Tenants Assn. v. Mapl~x4 (116 NJ.Super. 372, 282 A.2d 428); but Goldman ~. Town o[ Dennis (375 Mass. 197, 375 N.E.2d 1212); Griffin Dev. Ca~ v. City o! Oxnard (39 Cal.3d 256, 217 Cal. Rptr. 1, 703 P.2d 339 [1985] I. The general proposition is, however, minium with that the or, it of which Nor contains, such just provided land not district what N .E.2d town, the cai;cs an opment t sions, implied [5] of the the nald's Zonin 4. Thc wlmt ~ N.Y.2d ! 18 FGL & L PROPERTY CORP. v. CITY OF RYE 325 Cite ns 49S N.Y.S.2d 321 (C~.App. 198S) ~notes that exclusion of condominiums is a different preposition than requiring that property in a given area be held in condo- rninium ownership. However, we agree ~'ith the Appellate Division's conclusion thst the distinction is without a difference, 0r, if difference there is, that there exists ,o independent justification within the spir- it of subdivision 24's zoning prevision frem which the power to require condominium ownership can be implied. Nor does General City Law § 37, which contains the cluster zoning authorization ~pp]icable to cities such as Rye, provide ~uch justification. Under its previsions the ?lanning Board is authorized to make rea- ~onuble changes in the zoning regulation, provided that the average density of the !and not be greater than is permitted in the ,tistrict in which the land lies. Although ~'hst the legislative body can authorize its Planning Board to do, it can do itself by appropriate amendment of its zoning ordi- ,ance (see, Cummings v. Town Bd., 62 N.Y.2d 833, 834, 477 N.Y.S.2d 607, 466 N.E.2d 147; Rodgers v. Village of Tarry. ~o~r~, 302 N.Y. 115, 123, 96 N.E.2d 731), '~hs section contains nothing which indi- ~tes an intention to do more than allow 4eviation frem fixed dimensional zoning upon application of the owner in order to accomroedate group houses, apartment houses or steres.a Power to require devel- ,prnent of a 22-acre parcel in condominium ^wnership cannot be implied from its provi- ,~ns. therefore, any more than can it be "zplied from General City Law § 20(24). B [51 Authority to enact section 197-13.2 ,f the Code of the City of Rye does not ~xist, therefore, unless it can be found in ~he historical preservation previsions con- ~lso recognized in noncondominium cases (V/a- ~ Realty Co. ~. Little Boar's llead Dist., 101 N.H, 460, 146 ^.2d 257; County si Fayette v. Co~el~ 60 Pa.Commw. 202, 430 A.2d 1226; Fer- ~ald's Appeal. 17 Pa D & C 2d 291; Olevzon ~. Zoning Bd., 71 R.L 303, 44 A.2d 720). L The cluster provisions of thc Town Law {§ 281) and thc Village Law (§ 7-738) arc some- what more detailed, but even if read in part rained in section 96-a and article 5-K of the General Municipal Law or the Land- marks Preservation provision of the Rye City Code (ch. 117). Section 96-a of the General Municipal Law reads as follows: "In addition to any power or authority of a municipal corpora- tion to regulate by planning or zoning laws and regulations or by local laws and regu- lations, the governing board or local legis- lative body of any county, city, town or village is empowered to provide by regula- tions, special conditions and restrictions for the pretection, enhancement, perpetuation and use of l~splaces, districts, sites, build- ings, structures, works of art, and other objects having a special character of special historical or aesthetic interest or value. Such regulations, special conditions and re- strictions may include apprepriate and rea- sonable control of the use or appearance of neighboring private property within public view, or beth. In any such instance such measures, if adopted in the exercise of the police power, shall be reasonable and ap- propriate to the purpose, or if constituting a taking of private property shall previde for due compensation, which may include the limitation or remission of taxes." Arti- cie 5-K is broader in scope, covering histor- ic preservation not only by regulation but by governmental acquisition as well. Sec- tion llg-bb(4) defines "historic preserva- tion" to mean "for the purposes of this article and notwithstanding' any other pro- vision of law, the study, designation, pro- tection, restoration, rehabilitation and use of buildings, structures, district.% areas, sites or objects significant in the history, architecture, archeology or culture of this state, its communities, or the nation." The operative previsions of the article are con- materia (se~ Delaware Midland Corp. ~: Incor- porated Vii. o! Westharnpton Beach, 39 N.Y.2d 1029, 387 N.Y.S.2d 248, 355 N.E.2d 302, a/[g on opn at Special Term 79 Misc.2d 438, 359 N.Y. S.2d 944), the City's amhority is not enhanced, for both speak to the "development of land in such a manner as to promote the most appropri- ate use of land". 326 tained in section tl9-dd, which is set forth in full in the margin,s _lj~tgOf importance to the present issue is the fact that the regulation, special condi- tion or restriction by which section 119- dd(1) authorizes control of private property is "for the protection, enhancement, perpet- uation and use of places, districts, sites, buildings, structures". Nothing in the sub- division speaks to regulation of ownership. Noteworthy also is the fact that though section l19-bb(4) refers to "restoration" and "rehabilitation", those words are not to be found in section llg-dd(1), presumably because it was intended to permit a munici- pality acting under section 119-dd(3) after acquisition of a fee or lesser interest to restore and rehabilitate historic buildings and sites, but not to permit the municipali- ty to impose an obligation to restore or rehabilitate such buildings or sites as re- main in private ownership. Here the Code sections creating the Alansten Landmarks Preservation District not only mandate that the entire 22-asre district remain in single ownership but also impose upon the devel- oper the duty of rehabilitating the exteriors $. The section, entitled "Local historic preserva- tion programs," reads as follows: ~In addition to existing powers and authori- ties for local historic preservation programs in- cluding existing powers and authorities to regu- late by planning or zoning laws and regulations or by local laws and reguJations for preserva- tion of historic landmarks and districts and use of techniques inchiding transfer of devehipment rights, the legislative body of any county, city, town or village is hereby empowered to: ~1. Provide by regulations, special conditions and restrictions for the protection, enhance- ment, perpetuation and use of places, districts, sites, buildings, structures, works of ar~ and value. Such regulations, special conditions and neighboring private prolyerty within the public "2. Establish a landmark or historical preser- vation board of commission with such powers as are necessary to carry out ali or any of the authority possessed by the municipality for a historic preservation program, as the local legis- lative body deems appropriate. "3. After due notice and public hearing, by purchase, gift. grant, bequest, devise, lease or of the Jay Mansion and the Carriage House, proscribe the use of any new dwelb lng unit until that has been done, thus effectively requiring that the cost of reha- bilitation be shared by owners in the dis- trict of units other than the Jay Mansion and the Carriage House, and by dictating condominium ownership of the entire dis- trier impose the cost of maintenance of the exteriors of the Mansion and the Carriage House upon owners of such units as well. The right to impose reasonable controls on the use and appearance of neighboring private property within public view, gives by General Municipal Law §§ 96-a and 119-dd(1), cannot be stretched to cover pay- ment of restoration and maintenance costs, for such a construction, which would ira- pose those costs upon every unit in the district, not just those "within public view," would render meaningless the limitation is- tended by those words which appear is both sections. Yet there is no question that such was the Council's intention, for its findings with respect to the final envi- ronmental impact statement flatly stated that "[o]nly under [condominium] owner otherwise, acquire the fee or any lesser interest, development right, easement, covenant or other contractual iCtght necessary to achieve the pur- poses of this article, to historical or cuhuraJ proper~y within its jurisdiction. A~r acquisi- tion of any such interest pursuam Io this sub,i- vision, the effect of the acquisition on the valua- tion placed on any remaining private interest in such property for purposes of real e~late taxa. tion shall be taken into account. "4. Designate, purchase, restore, operale, lease and scl| historic buildings or structures. Safes of such buildings and structures shall be upon such terms and conditions as the local legislative body deems appropriate to insure Iht maintenance of the historic quality of the build. ings and structures, after public notice is appro- priately given at least thirty days prior to thc anticipated date of availability and shall b~ for fair and adequate consideration of such build- ings and structures which in no event shall be less than the expenses incurred by the munici- pahty with respect to such buildings and struc- and interest charges. NS. Provide for transfer of developmenl rights for purposes consistent with the purposes of this article." 66N.Y.2d 121 FGL & L PROPERTY CORP. v. CITY OF RYE 327 ship can the cost of maintaining the exteri- ors of the historic buildings be shared .~L~by all the homeowners", and that theme ~s repeatedly emphasized in the City's brief to this court. While that may be true, clearer authorization to enact such provi- sions than are contained in the General l~unicipal Law sections referred to is es- sential before section 197-13.2 can be up- held against the argument that it was be- yond the City's power to enacL Noteworthy also, in view of the require- rnent that the Mansion and Carriage House be completely restored before any other unit can be occupied is the absence from the General Municipal Law sections of au- thority to require restoration, as distinct from maintenance. Landmark and historic preservation laws normally prevent altera- tion or demolition of existing structures unless the owner can demonstrate hardship (Penn Cent. Trar~p. Co. v. City of New York, 42 N.Y.2d 324, 330, 397 N.Y.S.2d 914, 366 N.E.2d 1271, arid. 438 U.S. 104, 98 $.Ct. 2646, 57 L. Ed.2d 631), but if they place an undue and uncompensated burden on the individual owner may be held uncon- stitutional (Lutheran Church in Am. v. City of New York, 35 N.Y.2d 121, 129, 359 N.Y.S.2d 7, 316 N.E.2d 305) because "it forces the owner to assume the cost of providing a benefit to the public without rccoupment" (French Investing Co. v. City of New York, 39 N.Y.2d 587, 596, 385 N.Y. $.2d 5, 350 N.E.2d 381; see, Dunham, A Legal and Economic Ba.s~ For Cit!/ Plan- ning, 58 Colum. L.Rev. 650, 665). Here, society at large bears no part of the cost of restoration, it is rather to be borne initially by plaintiff and ultimately by the purchas- ers of dwelling units within the district. Yet the City's expert appraiser agreed that restoration costs of approximately $627,000 for the Jay Mansion and $588,000 for the Carriage House would be required. We do not hold that the General Munici- pul Law sections could not be drafted to impose restoration costs on an owner with- ~, On June 18, 1984, the Alansten 22-acre plot was so designated. Thc con.~titutionality of the amended version of the chapter is awaiting trial out violating the Constitution, nor need we reach the question whether as applied to plaintiff's property section 197-13.2 is con- stitutional. We hold rather that in light of the well-recognized rule that statutes are to be construed so as to avoid constitution- al issues if such a construction is fairly possible (Matter of Peters v. New York City Hou~. Auth., 307 N.Y. 519, 527-528, 121 N.E.2d 529; see, People v. Felix, 58 N.Y.2d 156, 161, 460 N.Y.S.2d 1, 446 N.E.2d 757; McKinney's Cons. Laws of N.Y., Book 1, Statutes § 150), the General Municipal Law sections under consideration as presently written should be construed not to authorize imposition of restoration costs solely upon plaintiff and purchasers from plaintiff or maintenance costs upon purchasers of properties other than those to be preserved. C In view of the distinctions between zon- ing regulation, historic district regulation and landmark regulation recognized in Penn_LiSt Cent. Transp. Co. v. City of New York, 42 N.Y.2d, at p. 330, supra, 397 N.Y.S.2d 914, 366 N.E.2d 1271, we note that chapter 117 of the Rye City Code deals with landmarks preservation and is r~ ferred to in section 197-13.2(C)(1). As chapter 117 read when the Alansten Pres- ervation District section was enacted, land- mark designation required the property owner's consent, but effective December 7, 1983, chapter 117 was amended to remove the consent requirement and provide for landmark designation by the City Council ainne,G and effective July 18, 1984, the Alaasten 22-acre site and the exteriors of the Jay Mansion and of the Carriage House were designated as protected. Nothing in that designation or in the provisions of chapter 117, which concern only mainte- nance of a landmark and the circumstances under which it can be demolished, provides support for the provisions of section 197- 13.2 requiring that the Alansten property be held in single ownership in condominium before Supreme Courl. Wcstchestcr County, in a dcclarato~, judgment action entitled DGM Part. hers-Rye v. City o! Rye. form or the imposition of restoration, as distinct from maintenance, costs upon the property owner and ultimately upon pur- chasers of dwelling units within the dis- trict. For the foregoing reasons, the order of the Appellate Division declaring Rye City Code § 197-13.2 invalid is affirmed, with costs. WACHTLER, CJ., and JASEN, SI- MONS, KAYE, ALEXANDER and TI- TONE, JJ., concur. Order affirmed, with costs. er to add request for reductions in unpr~ tested assessments on improvements. Affirmed. Wachtler, C.J., filed dissenting opinion in which Meyer and Kaye, JJ., concurred. Taxation ~=493.7( 1 ) Court was without authority to grant amendment to petitions alleging error in assessed value of land only, based on pr~- tests similarly limited, to permit taxpayer to add request for reductions in unprotest~ ed assessments on improvements. 485 N.E.2d 993 66 N.Y.2d 122 ..l~2zln the Matter of STERLING ESTATES, INC., Appellant, BOARD OF ASSESSORS OF the COUNTY OF NASSAU et al., Respondents. Court of Appeals of New York. Oct. 24, 1985. Taxpayer moved to amend petitions filed in tax certiorari proceedings to in- crease amount of claimed reductions on basis that assessments were unequal, ex- cessive, or otherwise valid. The Supreme Court, Nassau County, Farley, J., denied motion, and taxpayer appealed. The Su- preme Court, Appellate Division, 104 A.D.2d 599, 479 N.Y.S.2d 381, affirmed. On appeal by permission of the Appellate Division, the Court of Appeals, Simons, J., held that Court was without authority to grant amendment to petitions alleging er- ror in assessed value of land only, based on protests similarly limited, to permit taxpay- _l~sAdolph Koeppel, Anne J. Del Casino and Donald F. Leistman, I~Iineola, for ap- pellant. Edward G. MeCabe, Co. Atty. (Joshua A. Elkin, Mineola, of counsel), for respon- dents. ..h~OPINION OF THE COURT SIMONS, Judge. Petitioner is the owner of real property in Valley Stream, New York, known as the Green Acres Shopping Center. It has insti- tuted several proceedings pursuant to Rea] Property Tax Law article 7 seeking a re- duction in the land assessments on the sev- eral parcels making up the shopping center property for the tax years 1967/1968 through 1977/1978. In 1982 it moved to amend the petitions requesting, along with other relief, permission to allege error in the assessed value of lots not previously protested and in the assessed value of im- provements on lots that had been protest- ed. Special Term denied that relief, hold- ing that it lucked jurisdiction to permit amendment of the petitions to add a chul- lenge to lot or improvement assessments which had not been protested previously during the statutory period for administra- tive review. The Appellate Division firmed, with one judge dissenting (104 A.D.2d 599, 479 N.Y.S.2d 381). On this appeal petitioner presses only the court's ruling denying amendment to add a chal- lenge to the assessed value of the improve A N A N fi~ whi indi has put, SUMMIT SCHOOL v. NEUGENT 77 ducted on the premises which are the sub- ject of the special permit (Matter o£ Com- munity Synagogue v. Bates, I N.Y.2d 445, 154 N.Y.S.2d 15, 136 N.E.2d 488; Matter o£ Schlosser v. Michaelis, 18 A.D.2d 940, 238 N.Y.S.2d 433; Matter o[ Oakwood Is. Yacht Club v. Board o£ Appeals, 32 Miso.2d 677, 2~ N.Y.$.2d 907; Matter of Long Is. Light Co. v. Voehl, 27 Misc.2d 943, 211 N.Y.S.2d 576, affd. 15 A.D.2d 512, 222 N.Y.S.2d 589; Matter of De Ville Homes v. Michaelis, Sup., 201 N.Y.S.2d 129; Bernstein v. Board of Appeals, Vii. of Matinecock, 60 Misc.2d 470, 302 N.Y.S.2d 141, app. dsmd. 31 A.D.2d 650, 297 N.Y.S.2d 702, mot. for Iv. to app. den. 23 N.Y.2d 646, 299 N,Y.S.2d 1025, 247 N.E.2d 498). Where, as here, the special permit con- rains specific conditions which have been the subject matter of an agreement be- tween the Board of Appeals and the appli- cant, such conditions must also pertain ex- clusively to the zouiug uso of the land and not to the detei]s of the operation of the business to be thereon conducted, which, in this case, concerns the teaching of handi- capped children with learning disabilities, pursuant to a constitutional mandate ira- posed upon the State to "provide for the maintenance and support of a system of free common schools, wherein all the chil- dren of this state may be educated." (N.Y. Const., art. XI, § 1; emphasis added.) [5] We are dealing here with a private school teaching enterprise, authorized and operated under contract to carry out the State's obligation to provide education for such handicapped children with learning disabilities, pursuant to article 89 (§§ 4401- 4409) of the Education Law, and it would not only be contrary to "the strong public policy of the State which favors the educa- tion of all children, however handicapped" (Rogers v. Association for Help o£ Retarded Children, 308 N.Y. 126, 132, 123 N.E.2d 806, emphasis added; Matter o£ Wil~wyck School for Boys v. Hill, 11 N.Y.2d 182, 227 N.Y.S.2d 655, 182 N.E.2d 268, supra ), and in excess of the legislative power conferred upon a municipality, to impose, as a condi- tion of a special use permit for a private school, the details of the operation of the educational processes of the institution, and also equally imprepor and beyond its power to impose such conditions, as here, by an agreement with the applicant. [6] To the extent that appellants may be properly precluded by a prior waiver of a statutory or constitutional right to chal- longs the official action of the municipality in relation to zoning, such waiver is ineffec- tual to foreclose such attack where the right concerns a matter of public policy (see Brous v. Town o£ Hempstead, 272 App. Div. 31, 69 N.Y.S.2d 258). ]By their agreement, the appellants have effectively waived all objections to the "conditions subsequent", except these under which the municipality sought to assume control over some aspects of the educational proce~ of the school, an effort for which it was neither professiSnally equipped nor le- gally authorized to undertake. [7] Those "conditions subsequent" which may intrude upon the educational processes of the appellants, as opposed to their use of real property, are contrary to pub]lc policy and may not be the subject matter of a waiver. Our inquiry is now focused upon many clauses of the "conditions subsequent" des- ignated "D", which, for the reasons herein- below stated, suffer such infirmity. It is there provided as follows: "D. Students will be under 18 years of age and will be limited to those with so-called 'Learning Disabilities'; regular educational classes will be held during the months of September through June, in- clusive, on Mondays through Fridays, in- clusive, from appreximatoly 9:00 A.M. to approximately 4:00 P.M.; any athletic or recreational activities shall be of second- ary importance and will be held either indoors, or sufficiently distant from the north and south boundaries of the proper- ty, both, to the end that neighboring owners will not, be disturbed by loud noise or otherwise; no summer camp or vacation activities of any kind will be held or maintained at any time on the xecutive Law §8 370- e Multiple Residence o certificates of occu- ~esidence Law 8 302), unicipalitlee to enact ~ laws (Multiple Reel- ~be third cause of ac- ~ predicate that the the power to enact cause it contravenes dtiple Dwelling Law ~idence Law § 302(5) :mcr § 383. Undeni- t establish local laws e State Constitution ", defined as laws all villages (N.y. life], Id]Ill; Munlei- § 10Ii]Iii]Ia]II2] ). ;e, however, is not of these three stat- )welling Law and ~ adverted to pro- an individual put- ling rel{es on a pre- e of occupancy, no ~ advanced that the n to the Previsions ers of those laws the certificate (see, 8 30115]; Multiple ). These sections e dwelling was not ~e laws when the Local Law No. 21 ntrary. al law contradict 383. That statute te of occupancy et aside or vacat- }ew or a court of be and remain ~pon all state and to all matters ) order, direction dance therewith ~d by any other :Y (emphasis sup- P.O.K.. R~A. INC. v, VILLAGE OF NEW PALTZ plied) (Executive Law former 8 383, pealed by ~1981, ch. ~/07, § 12). The certificates of occupancy issued in con- nection with plaintiffs apartment complex from 1963 to 1969 · prOclaim that the build- lugs "conform[ed] to all of the require- ments of the applicable previsions of the law" ~xistlng as Of the date of issuance (aec, 4 Rathkopf, The Law of Zoning and Planning 8 49.07, it' 49--41).' Local Law leo. 21 does 'nOt detract from that assur- ance, for it requires the building inspector 'to detei'mine if the sh'uctuce meets current building construction laws. Although the already-promulgated certificates attest that thecomplex met building'cede regulations extant at the time they were issued, there is no guarantee that they meet today's standards (see, id(, at 4938). For example, ~.e New .York Building Code was repealed effective oanuary 1, 1984, and replaced by the current New York Uniform Fire P~. vcution and Building Code Act, ~hich b~ came effective July 21, 1981 (L.1981, ch. 707, 88 12, 20). Local Law No. 21's re- quwement, tha.t p!.aintiffe buildings now meet current building and pre regulations does not offend the Executive Law former is, however, meri~ to the cem- ~Plaint insofar as the first cause of ~ction ~n~,' ~ec ~ pla~ff ~h~ ~e V~ ~ hot have ~e le~sh~ve ~wer ~ ~la~ ~e ~nve~ion Of ~ ~e~p ~whi~ d~ not ~volve an al~on ~ ~e o~e~s use of ~e ~. M~g~ have no ~hemnt ~paci- ' ~ ~ ~da~ ~e ~nec in whi~ pm~m ~ may ~ ~ or held (FGL & L P~p. C~. p. ~'t~ of R~, 66 N.Y.~ 111, 113, 495 N.Y.S.~ ~21, ~5 N.E.~ 986). ~ey must ~ such ~w~ from ~e S~. "Absent such a deletion of ~wer, a mu- nici~li~ ~nnot employ a zoning o~nance ~ ex~ude or ~cgm~a~ a~nst the con- dominium fo~ of o~e~hip (North Fo~k Motel v. ~on~, 93 A.D.2d 8~, 461 N.Y. S.~ 414). As ~ ~w Ho. 21 encum~ s~nsom, effo~ ~ conve~ a~en~, which ~e Village zon~g o~inan~ cl~si- in 1986, 1987 a~ 1988 ~ i~l for . ~ o[~ this ~mem for ~e a~[i~ble 479 ties as multifamily dwellings, into condo- .minlums, also considered multifamily dwell- rags, it goes beyond the Village's enabling authorization and therefore the local law is ultra vires and void (see, FGL & L Prop. Corp. v. Cit~/ of Rite, Supra, 66 N.Y.2d at 115, 495 N.Y.S.2d 321, 485 N.E.2d 986; ~l~ortk Fork Mot~l v. Grigonis, supra).. ', MAHONEY J., and MERCURE, J., cencnr. ~KANE, J.; concurs in part and dissents in part in an opinion. Order modified, on the law, without costs, by reversing so much thereof as denied plaintiffs motion for summary judg- ment; plaintiff granted summary judgme.n,t on its first cause of action and defendant s ~l La.w No. 21 declared ultra vires and om; aha, as so modified, affmmed. KANE, Justice (concurring in part and dissenting in part). In regpeCtfully dissenting, l'note my con- currence with the majority's reasoning as to the merits of plaintiffs second and third causes of action. In my view, however, the ordinance is a legitimate exercise of the Village's police power and I would, there- fore, affwm Supreme Court's dismissal of plaintiff's first and second causes of action. '~I'o be sure, a Village ordinance enacted under the police power must bear a reason- able COnnection to the public health, com- fort, safety and welfare" (D'Angelo v. Cole, 67 N.Y.2d 65, 69, 499 N.Y.S.2d 900, 490 N.E.2d 819; see, Village Law 8 4-412[1]). I agree with the majority that, absent a delegation of power, a vil- lage may not mandate the manner in which property may be owned (see, FGL & L Prop. Corp. v. Citit of Rye, 66 N.Y.2d 111, 113, 495 N.Y.S.2d 321, 485 N.E.2d 986). However, the clear legislative target of the ordinance at issue here is the condition of the property at the time of conversion, not its form of ownership. The encumbrance directed at conversion is, in my view, inci- ExecUtive Law provision was repealed effective In 1984 (L1981, ch. 707, §§ 12, Jan~s Dinizm, Jr. Telephone (516) 765-1809 BOARD OF APPEALS ToWN OF sOUTHOLD Supervisor Town Hall, 53095 Main R P.O. Box 1179 $outhold, New York I Ic) Fax (516) 765-1823 Telephone (516) 765-18{ FROM: DATE: SUBJECT: Town Clerk's office ZBA office November 26, 1990 Variance Application by Michael Cholowsk¥ 1000-55-1-9 - Proposed Mini Golf Course We request that the attached application, which was received by our office on November 8, 1990, be filed as submitted, as authorized by the Town Attorney's Office. lk Serge Doyen. Ir. JoSeph H. Sawicki ]ames Dinizio, Sr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD November 28, 1990 5COT'FL. HARRiS Su~isor Town Hall, 53095 Main Road P.O. Box 1179 , Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 J. Kevin McLaughlin, Esq. William H. Price, Jr., Esq. 828 Front Street P.O. Box 803 Greenport, NY 11944 Re: ApPlication of Michael Cholowsky - Variance Gentlemen: In accordance with your request, the above application has been filed, and the receipt for same is attached. It has, however, been noted that the Z.B.A. questionnaire and SEQRA forms have not been signed and a Notice of Disapproval has not been issued by the Building Inspector. Please complete and sign the attached forms and return them to our office as early as possible together with a copy of the Notice of Disapproval from the Building Inspector. (Mr. Lessard has advised us that if you apply directly to him, he will issue a Notice of Disapproval based Upon a letter from you with attached site plan map showing the golf course and its related uses rather than completing a building permit application.) Also, Mr. Cholowsky was in today and it is believed that he would like to apply for the Special Exception application at the same time because time is of the essence to him in this project. Attached is a Special Exception application and neighbor notice form which are necessary (together with a $150.00 filing fee) should you choose to file the Special Exception now. Please advise us of your position in this regard. Upon receipt of the above requested forms and disapproval together with written property ~wners authorization,.this is expected to be held for public hearing on the variance matter next hearings calendar (advertised during December). at our 'bSM 066% '95 ~aqe 2 - NovemDer 28, 1990 To: J. Kevin McLaughlin, Esq. Re: Application of Michael Cholowsky Please don't hesitate to call our office if you have any questions concerning this matter. Very truly yours, GERARD P. GOEHRINGER CHAIRMAN Enclosures Linda Kowalski cc: Mr. Michael Cholowsky P.S. Please also furnish six prints of the site plan map bnly one was filed with us). Thank you. N? '37575 $o,,thold, N. Y, l1971_.}"L.c-~-,~Q-~ I~' . ....~.~ F.o.~ D£c,s.o- oF .u~Lv~NG ~NS.ECTOei0¥ :BI; ~ A~ N°. ~ ~ %; / 0 ~, % DATE ...~.~J .......... ,~.~g .... TO THE ZONING BOARD OF APPEALS, TOWN OF S~THOLD, N. Y. 1, (We) ~ZC .............................. ~ .................................................................. ..... Name of Appellant Street and Number SoaPboX8 ..................................... Ne~..~.~.~. HEREBY APPEL TO ............. ~unicipaliw State THE ZONING BOARD OF APP~Ls FROM THE DECISION OF THE BUILDING INSPECTOR ON APPLICATION FOR PERMIT NO ..................................... DATED ...................................................... WHEREBY THE BUILDING INSPECTOR DENIED TO ( ) ( ) ( ) Name of Applicant for permit ....................................... Municipality State Street and Number PERMIT TO USE PERMIT FOR OCCUPANCY tract 1000 SectionO55Block01 Lot 009_ . Dis ' ..~urren~ Owner ~oute 48 and county ~ -~^Ud A~ricultural-Cons~: ~Qrton Lane ~ouu~ ......... ~ ............................ LOCATION OF THE PROPERTY ................. ~;~"/fi~'~"7""0~"District on Zoning Mop vat~( Lorinda C. Casola 2. PROVISION (S) OF THE ZONING ORDINANCE APPEALED (Indicate the Article Section, Sub- section and Paragraph of the Zoning Ordinance by number. Do not quote the Ordinance.) Article III Section 100-31.7 (c) 3. TYPE OF APPEAL Appeal is made herewith for (please check appropriate box) (X) A VARIANCE to the Zoning Ordinance or Zoning Map ( ) A VARIANCE due to lack of access (State of New York Town Law Chop. 62 Cons. Lows Art. 16 Sec. 280A Subsection 3 () 4. PREVIOUS APPEAL A previous appeal (has) kh~:~l$ been made with respect to this decision of the Building Inspector or with respect to this property. Such appeal was ( ) request for a special permit ( ) request for a variance and was made in Appeal No ................................. Dated ............................................................... ( ) (X) ( ) REASON FOR APPEAL A Variance to Section 280A Subsection 3 A Variance to the Zoning Ordinance is requested for the reason that Form ZB1 (Continue on other side) I. STRICT APPLICATION (~:'¥HE O~/NANcE would produce practical difficulties or unneces. sor¥ HARDSHIP because it is economically unfeasible to establish a golf club or the like as permitted as a special exception under Section 100-31 (7) of the Code if Same cannot be operated for a profit. This is especially true where the sole Use proposed is the special exception and does not include the sale or establishment of residences. 2. The hardshipcreatedis UNIQUE andisnotshared by all oroperties alik~ in the immediate vicinity ofthisproperty andin this use districth~cnuse ' a~oss from a commercial establishment, this property is directly snip. The proposed Use complements the i.e., an automobile dealer- Opposed to the nearest Commercial Use as other residential area in the vicinity. unique because unless the provision requiring that such It is further prise be conducted not-for-profit an enter- the applicant to proceed with the is waived, it makes no sense for cost and effort involved in applying for a special exception requiring both this Board and Planning Board approval. 3. The Variance would observe the spirit of the Ordinance and WOULD NOT CHANGE THE CHARACTER OF THE DISTRICT because whether the enterprise is conducted as a not-for-profit enterprise or a profit enterprise, it will appear identical to anyone who Uses same. COUNTY OF SUFFOLK~ ss . Sworn to this -'~'~J ................. : ......................................... .. October 19 90 Fmk zm, lm TO%VN OF $OUTItOLD BUILDING DEPARTMENT TOWN CLERK'S OFFICE SOUTHOLD, N.Y. NOTICE OF DISAPPROVAL To .~ .~. 5..u"~.. ..... ...~.~..~.....~ ...~ ......... PLEASE TAKE NOTICE that your application dated ~ ~ ~ 19 ~. for pe~it to ~~' ~' '%'~ ~.~ ~ ~-~ · g~ ~:--~. · .~.~. at Location of Property ,..~ ~ ~ ..... ~~..~...:~~~ .5 . ~ousemo. Street '' Ha~l~ Co.~ty ~ ~a~ ~o. ]000 s~tio....~. ~7~ ..... ~o~ ..... ~ ...... ~ot ...~. ] ........ Subdivision ................. Filed Map No ................. Lot No ....... ~ .......... - .~r '"~'~ .................. : ..... .... Building Inspector RV 1/80 .you made application to the Town Trustees for an "inspection ~6r possible waiver or permit under the ~ requirements of Ch. 97 of the Town code? Yes No 13. Please list present use or operations conducted upon the subject property at this time - " and proposed Please submit photographs ~or ~ne record. I certify that the above statements are true and are being submitted for reliance by the Board of Appeals in considering"mY, application. Signature (p~oper~y owner} Autnor~ze~ 1/88 LASER FICHE FORM Planning Board Site Plans and Amended Site Plans SPFile Type: Project Type: Site Plans Status: Incomplete Application - In Active SCTM #: 1000- 55.-1-9 Project Name: Cholowsky, Michael Address: 3340 Horton's Lane, Southold Hamlet: Southold Applicant Name: Michael Cholowsky Owner Name: Lorinda Casola Zone 1: Approval Date: OPTIONAL ADDITIONAL INFORMATION Horton's End SP Date: Zone 2: Location: e/s/o SC Filin,q Date: C and R's: Home Assoc: R and M A,qreement: A date indicates that we have received the related information Zone 3: Lane, Southold SCAN Date: SCANNED OCT 2 ] 2009 Records Management