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HomeMy WebLinkAboutZBA-03/17/1988 Hearing TRANSCRIPT OF HEARING SOUTHOLD TOWN BOARD OF APPEALS REGULAR MEETING OF THURSDAY, MARCH 17, 1988 Appl. No. 3714 Applicant(s): DALE MAYNARD Location of Property: W/s Seawood Drive, Southold County Tax Map ID No. 1000- ??- / - ~~ Board Members Present: Chairman Goehringer P. Goehringer Members: Grigonis, Doyen.,-Douglass. Mr.Sawicki was absent. Also?Present: Victor Lessard (Building Department) Linda Kowalski, Z.BoA. Secretary and approximately 30persons in the audience. The Chairman opened the hearing at 7:30 o'clock p.m. and read the notice of hearing and application for the record. CHAIRMAN GOEHRINGER: I have a copy of a survey indicating the house lot which is lot number 26 and lot 25 which basically is the nature of this particular application. However, we are really separating both the house and the lot interchangeably. And we have a map drawn by Roderick VanTuyl and Son, most re- cent date is August 16, 1967. There appears to be a new print of that map. And I have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. Is there somebody who would like to be heard? Mr. Cuddy. MR. CUDDY: I represent DaLe and Joann Maynard, the owners of the subject parcel, lots. If I may, I'll try and raise my voice, I would like to come forward because I have a lot of material that I'd like to present to the Board. And I think it might be easier to do it up there then stand back here and walk back and forth. Does everybody have a copy, first of all, of the map, VanTuyl's map showing lots 25, 26 and 27? Ok. As the Board is aware, it had previously had an application to di- vide or separate off lot 27 and it granted that application in 1981. But at that time, they denied the application for 25 and 26 to be separate lots. I would submit that that was an over- sight by the Board based upon what I believe is the applicable law. And I would offer to the Board a map of Seawood Acres which is identified, not only the lots in question and showing all of the ownership on both sides of Seawood Drive but I be- lieve this map also shows that it was approved by the Planning Commission of the Town of Southold. This was a map that has Page 2 - Thursday, March 17, 1988 Public Hearing - Dale Maynard Southold Town Z.B.A. MR. CUDDY (continued): lots essentially which are between 12/5 and 13/5 square feet. Prior to the time that this map was approved, the town approved a map in East Marion called the Map of Marion Manor and I'm go- lng to offer that as an exhibit too. And the reason that I cf- fer this map is that this is the same size lots. Twelve five, thirteen thousand square feet as this map except this was three years earlier than the Seawood Acres map. In 1958 and '59, the town also approved maps; Terry Waters at Bayview. They approved a further map and this is in the Hamlet of Southold that I'm talking about. The Map of Bayhaven at Southold. These lots on this map, both maps are also approximately 13 thousand to 15 thousand square feet. I offer those two maps to the Board. The reason I present all these maps to you is simply this; that in 1971 and in 1973 when the Board was upzoning, at that time in 1971; the lots on the Seawood Acres Map, 25, 26 and 27 were 12 thousand 500 square feet or more or legal lots. And only by the accident of upzoning, having the parcel in one name, do you have a merger. But all of the maps I presented to you and 43 other maps were exempt from the merger. That's by your section 100-13. I don't find any rhyme or reason in taking a map in 1956, Seawood Acres, and denying that exemption. When a 1953 map, a 1958 map and a 1959 map received the exemption. And I would submit to you that the 1956 map of Seawood Acres is entitled to the same treatment which is to allow the lots that exist. In other words, 25 should be a lot, 26 should be a lot as is 27 which you granted. So I would respectfully request that as a matter of law, that you consider that this lot number 25 should be set off. I would al- so say to you that factually, the situation I think, .has markedly changed since 1981. To the north of the lots that are shown as 25 and 26 are lots that were not on the file map originally and they're noted on this map. They're drawn in right here. Those lots existed prior to 1969. They're presently in three separate owners and I have copies of those maps. I've identified these maps by the tax map numbers. The tax map numbers here for in- stance, for 25 is 64. So the lot that is immediately to the north of 25 is 64, 62, 61. These parcels were acquired at dif- ferent times. But originally, the intended to be clause show's that in 1969 they existed as separate lots. So at the time they were created, they met the zoning requirements. They've since, conveyed to new owners. Two of the three lots have houses on them. The lots are the further north. The lot that is immedi- ately adjacent to 25 is vacant. The lot to the north of it is owned by Dunn. The lot next to that is owned by McKyver. CHAIRMAN GOEHRINGER: That's a fairly new house. MR. CUDDY: Both those houses are new houses. And I would just offer up three copies of deeds for those respective lots. Per- haps just to assist a little bit, this is a tax map showing the same information on it except that these lots now are numbered consecutively so that you can see where they are and they fit right in here. I would also offer up to you a5 this time a con- tour map done by VanTuyl. It's in two sections. I'm doing this to show you the houses that are built there so we can project what a house on 25 would look like. This shows you the lots in ~age 3 - ~hursday, March 17~ 1988 P~b~ic. Hearing - Dale Maynard Southold Town Z.B.A. MR. CUDDY (c~ntinued): question. There is the existing house of Mr. Maynard right here. This is the building envelope that would meet the old standards of 35 foot setbacks based on the old "A" District. Immediately to the north then, would be this map. So that running it this way, these lots basically have the same contours. The Dunn house is on the middle lot. That house has e~actly, that lot has ex- actly the same contours that are on this lot when you match them up. When you heard the case in 1981, there was no houses on those lots. I think that looking at the lots themselves, there may have been an error made as to which lot was steeper. But certainly, the Maynard lot which is 25, has no greater slope than the Dunn lot which is the middle one on the contour map. We have for the Board, I don't expect you to review them all, but these are pic- tures of the various lots that we're talking about, tax map lots, showing the angles, showing the houses that are on them. They are new houses. They have been built in the last two years. I would also submit to the Board, copies of appraisals~ appraisal state- ments from A.W. AlbertSon, Marion King and from Hahn Realty stating in effect that the two lots sold separately would be 45 to 50 thousand dollars different then the whole package. That is 25 and 26 sold as one lot. Mr. Maynard acquired his lot, the parcel here, in'lgS~. He would very much like to sell the parcel which is desig- nated as 25 which is the vacant lot. He's been approached by a Mr. Keirnan who is here tonight. Mr. and Mrs. Maynard are here. Mr. Kiernan is here. Mr. Kiernan has lived here all his life. He wants to remain here and this lot is a lot that he can afford to buy. It will be sold in the vicinity of 16 thousand plus dollars to him. It's not as affordable as we think of it in the planning area but it's certainly an affordable lot to somebody who is try- ing to stay here. He can manage this situation and he can pay for it and he can build a house on it. That's certainly a make way type bargaining but I' do point out to you that there is some merit in having somebody buy a lot that can afford to put a house on it and remain here as opposed to going some other place. I would ask the Board, based upon the fact that I think there was an oversight, as a matter of law, as to the exemptions. And fur- th~rmore,-I think that the facts show that there can be a house built upon this. And one of the reasons for your earlier denial was a question of contour line. I think that the contours-show that you can build on lot 25 just as well as you can build on the lot that's two lots away. I believe that ~he~e ar-e ~co~pet~i~g reasons today that weren't there in 1981 to,dress this particular application and approve it to divide both those lots so that Mr. Maynard has the same lot as everybody else in Seawood Acres and there are over thirty lots that are small lots in that area. It's certainly not going to adversely effect the neighborhood and I suggest that it's in keeping within precisely with what the town had in mind for that area. Mr. Maynard is here. Kiernan is here. A neighbor is here if there are any questions. . ?age 4 - Thursday, March 17, 1988 P~blic. Hearing- Dale Maynard L SOuthold Town Z.B.A. CHAIRMAN GOEHRINGER: I don't have any questions to be perfectly honest with you. If anybody would like to speak, they're welcome to for the record. And we thank% you very much. MR. CUDDY: Thank you for listening CHAIRMAN GOEHRINGER: Is there anybody else who would like to speak in favor of the application? Anybody like to speak against the application? Hearing no further questions, I'll offer a motion gentlemen, closing the hearing and reserving decision until later. Ail in favor - AYE. TRANSCRIPT OF HEARING SOUTHOLD TOWN BOARD OF APPEALS REGULAR MEETING THURSDAY, MARCH 17, 1988 Appl. No. 370l Applicant: CHARLES ZAHRA Location of Property: Pike Street, County Tax Map ID No. 1000-141-4-5 Mattituck Board Members Present: ~Chai~man Gerard P. Goehringer; Robert J. Douglass, Charles Grigonis, Jr.; Serge Doyen. (Member Sawicki was absent.) Also present: Victor Lessard, Building Department Executive Administrator; Linda Kowalski, Board Secretary; Daniel Ross, Esq. as Attorney with the'Firm ~of'Wickham, Wickham and Bressler, P.C. in behalf of the applicant; Applicant Charles Zahra, and approximately 30 persons in the audience at this time~ The Chairman identified the application. Daniel C. Ross, Esq. of Wickham, Wickham & Bressler, P.C. appeared in behalf of the application and submitted a March 17, 1988 letter with attachments for the record. Motion was made by Mr. Goehringer, seconded by Mr. Grigonis, to CLOSE THE'H~ARING'IN TOTO, pending deliberations and determination. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis, Douglass and Doyen~ (Member Sawicki was absent.) This resolution was duly adopted. Respectfully submitted, Board Secretary TRANSCRI?T OF HEARING SOUTHOLD TOWN BOARD OF APPEALS REGULAR MEETING OF THURSDAY, MARCH 17, 1988 Appl. No 3713 Applicant(s): ROBERT STARON Location of Property: 1490 Waterview Drive, Southold County Tax Map ID No. 1000-7~ - ~ -~-~ Board Members Present: Chairman Goehringer P. Goehringer; Members: Grigonis, Doyen, Douglass. Mr.Sawicki was absent. Also Present: Victor Lessard (Building Department), Linda Kowalski, Z.B.A. Secretary and approximately 30 persons in the audience. The Chairman opened the hearing at 7:52 o'clock p.m. and read the notice of hearing and application for the record. CHAIRMAN GOEHRINGER: I have a copy of a survey produced by Peconic Surveyors. The most recent date is March 5, 1987 in- dicating a penned in shed of 14 by 16 and it shows approximately at its closest point, I believe, that's one foot to the property line. However, the shed does not follow the property line. That is its closest corner. And I have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. Would you like to be heard Mr. Staron? MR. STARON: Once again, I would just like to say to the Board that I did make a good faith attempt to locate it. And the problem I had was getting a surveyor down. There was a period of time where there was heavy construction going on. With the collaberation of a neighbor, we sought to identify and we were wrong. CHAIRMAN GOEHRINGER: Can you just enlighten us a little bit about the shed itself. It's used only for storage purposes? MR. STARON: Yes. CHAIRMAN GOEHRINGER: Is there any electricity in it? MR. STARON: No there isn't. CHAIRMAN GOEHRINGER: And it has no plumbing? MR. STARON: No. 'Page 2 - Thursday, March 17, 1988 ,Public Hearing - Robert Staron Southo!d Town Z.B.A. CHAIRMAN GOEHRINGER: accessories? What does it have, mainly pool supplies and MR. STARON: Correct. There would be no environment problem. CHAIRMAN GOEHRINGER: Thank you sir. MR. STARON: Thank you. CHAIRMAN GOEHRINGER: Is there anybody else who would like to speak in favor of this application? Anybody like to speak against the application? Questions from Board members? I'll offer a resolution gentlemen, to close the hearing. Thank you for coming in. Ail in favor- AYE. TRANSCRIPT OF HEARING SOUTHOLD TOWN BOARD OF APPEALS REGULAR MEETING OF THURSDAY, MARCH 17, 1988 Appl. No. 3711 Applicant(is): ERNEST AND DORIS ROBINSON Locati©n of Property: 915 Mill Creek Drive, 2~Southold County Tax Map ID NO. 1000-/3o~- 3 - 3~ Board Members Present: Chairman Goehringer P. Goehringer, Members: Grigonis, Doyen, Douglass.(Mr.Sawicki was absen%~) Also Present: Victor Lessard, (Building Department), Linda Kowalski, Z.B.A. Secretary and approximately 30 persons in the audience. The Chairman opened the hearing at 7:57 o'clock p.m. and read the notice of hearing and application for the record. CHAIRMAN GOEHRINGER: 1 have a copy of a survey produced by Roderick VanTuyl, P.C. The most recent date was August 18, 1975, indicating the house as it stands at its present time with some renovations.and indicating a deck of rather an odd size, variable size I'll say for the hearing. And I have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the amea. Is there somebody who would like to be heard? How do you do sir? MR. ROBINSON: I am Ernest Robinson. you wish to ask. I will answer any questions CHAIRMAN GOEHRINGER: When I was down last weekend, I noticed that, I didn't look at the file but since then we've received a letter from you indicating that the deck at its closest point will be approximately 26 feet 10 inches from the inside of the bulkhead. Is that correct? MR. ROBINSON: That's correct, yes. CHAIRMAN GOEHRINGER: In no way is this deck going to be roofed or anything of that nature. It will remain open? MR. ROBINSON: No, an open deck. CHAIRMAN GOEHRINGER: And how high approximately, above the existing grade will it be? ~age 2 - Thursday, March 17, 1988 Public Hearing - Ernest and Doris Robinson Southold Town Z.B.A. MR. ROBINSON: It will be even to the floor of the house which is about two steps, three steps. CHAIRMAN GOEHRINGER:' Would you say that's about 18 inches. MR. ROBINSON: About 18, yes. CHAIRMAN GOEHRINGER: Would there be any exterior lighting that would cause a problem to the neighbors in any way? MR. ROBINSON: No. There will be no lighting from the deck period. CHAIRMAN GOEHRINGER. We thank you very much sir for coming in. Is there anybody else who would like to speak in favor of this application? Anybody like to speak against the application? Questions from Board members? Hearing no further questions, I'll make a motion closing the hearing and reserving decision until later. Ail in favor - AYE. TRANSCRIPT OF HEARING SOUTHOLD TOWN BOARD OF APPEALS REGULAR MEETING OF THURSDAY, MARCH 17, 1988 Appl. No. 3712 Applicant(s): ROBERT CLEMENS Location of Property: S/s Main Bayview Road, Southold County Tax Map ID No. 1000-~y -~ -/7 Board Members Present: Chairman Goehringer P..Goehringer, Members: Grigonis, Doyen, Douglass~.(M~Sawicki was absent~) Also Present: Victor Lessard (Buiiding Department), Lind~ Kowalski, Z.B.A. Secretary and approximately 40 persons in the audience. The Chairman opened~lthe hearing at 8:02 o'clock p.m. and read the notice of hearing and application for the record. CHAIRMAN GOEHRINGER: I have a copy of a sketch of a survey, actually a site plan dated 1/29/88 and done by Garrett Strang, Architect indicating; a proposed addition of approximately 20 by 26 and stairway and a proposed deck of 15 by 32 shown on the site plan which is not necessarily the nature of this particular application as the deck. And I have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. Is there somebody who would like to be heard on behalf of this application? MR. STRANG: Good evening. I'm here on behalf of my client, Mr. Clemens. The nature of the application speaks for itself. There is, I believe you should have in your records, a copy of the sur- vey which was prepared by Mr. VanTuyl. If not, I can provide you with one. In looking at the survey, you'll observe two things. One which was previously mentioned, that being; that there is an existing garage on the property 11 feet from what would be deemed the rear property line. There is also shown attached to the house the porch. The porch is a concrete structure elevated above grade. It's presently unroofed. It's more of an elevated patio, if you will, The addition that is proposed is to encompass the porch as well as expand upon it somewhat. The reason for the addition is basically, the house was originally built as a summer residence. It's relatively small. My clients intentions are to move out here on a year round permanent basis. He has a need for an additional room for living area. This is what has prompted him to put on the addition. The porch, encompassing the area of the porch seem to be a natural way to go. The south, the orientation of the house, if you'll look at the site plan or the survey, is such that where the deck is proposed to be built is the south side of the house. That side had he no~ given consideration of putting the addition in the area where the deck is for several reasons. Number one; to take advantage of passive solar gain with the southern expo- Page 2 - Thursday, March 17, 1988 Public Hearing - Robert Clemens Southold Town Z.B.A. MR. STRANG (continued): posure. If we put an addition in, it will block that as well as the fact that it's presently a combination living/dining room and if we were to put an addition there, it would become an interior space which would not then meet certain codes and safe building construction requirements. So for all intents and purposes, ba- sically, are backed into a corner, if you will, of putting the addition where it is shown. The fact there is an existing garage which is 11 feet off the line to begin with, already establishes a building line so to speak. While I'll admit that it is an ac- cessory structure and it does meet the code criteria as far as that qoes. The addition would be considered part of the princi- ple dwelling. The fact also, that there is a right-of-way. It is depicted asa right-of-way on the survey. Although on the tax map, it's shown moreorless as an extension of the parcel that fronts Main Bayview. Whether in fact it's truly a right-of-way or whether it's a flag extension of that lot, remains to be seen. But in any event, it's an unbuildable piece which would, for all intents and purposes, add an additional 12 feet of open space. And I feel that our 15 foot setback and the 12 foot of open space that would remain as such, would have to remain as such, would give us 27 feet and come relatively close to a normal open space that would be required as a rear yard. Again, the abutting proper- ty is the property which is presently being developed as The Cove Condominiums. They would have to meet a certain yard requirement from their property lines. So I think it would be more than ade- quate space if the Board were concerned about having proper build- ing separation between this. We've met all the other criteria of the zoning. We're within lot area constraints and all the setbacks. Certainly, we're trying to be as conservative, if you will, as we can wi.th respect to this. We're really locked into the addition in this area and it will necessitate a variance. If the Board has any questions, I'll certainly address them at this time. CHAIRMAN GOEHRINGER: You have no abjection, I hope to a covenant that, if the Board did so grant this application, there being no further rear yard reductions. MR. STRANG: I don't think that would present a problem but let me ask my client. CHAIRMAN GOEHRINGER: The other thing is in reference to the 280A status. Do you have any feelings concerning that particular area? MR. STRANG: Well, we did amend our application to include that as part of this process. I was not aware of the fact that there was not an approved 280A on this area. It is an established old subdi- vision, I guess, or relatively old subdivision. And the road has been travelled regularly and maintained in good condition. If the records indicate that there is not an existing 280A, we would ask that the Board also give us that approval as well. P. age 3 - Thursday, March 17, 1988 Public Hearing - Robert Clemens Southold Town Z.B.A. CHAIRMAN GOEHRINGER: Thank you very much Mr. Strang. MR. STRANG: Thank you. CHAIRMAN GOEHRINGER: Is there anybody else who would like to speak in favor of this application? Anybody like to speak against the application? I really should pause in between. I apologize. Seeing no hands, I'll make a motion closing the hearing reserving decision until later. Ail in favor - AYE. TRANSCRIPT OF HEARING SOUTHOLD TOWN BOARD OF APPEALS REGULAR MEETING OF THURSDAY, MARCH 17, 1988 Appl. No. 3543 Applicant(s): PETER AND BARBARA HERZ Location of Property: 70 Cedar Point Drive, Southold County Tax Map ID No. 1000-~-~f~-/J./ Board Members Present: Chairman Goehringer P. Goehringer, Members: ' Grigonis, Doyen, Douglass.(Mr. Sawicki was absent.) Also Present: Victor Lessard (Building Department), Linda Kowalski, Z.B.A. Secretary and approximately 70 persons in the audience. The Chairman opened the hearing at 8:11 o'clock p.m. and read the notice of hearing and application for the record. CHAI~N G©EHRINGER: I've read this legal notice before and therefore, I'm very simply going to open the hearing. And will ask ~s. Moore if she has anything that she'd like to add. MS. MOORE: Before I start I'd like to submit to the Board a memorandum. The top one is the original document. I would re- quest that this memorandum be made part of the record. We are before this Board for the construction of a proposed single family residence within 75 feet of tidal waters. On May 21st, '87, Dr. and Mrs. Herz appeared before the Zoning Board with a survey dated January 12th, '87 for the purposes of requesting the necessary variance for the proposed residence. At the hearing questions were raised in an effort to determine if the proposed dwelling could be pulled back on the property away from the southerly property line along Little Peconic Bay. At that tim~, Dr. and Mrs~ Herz were requested to go back and redraw the house in such a way as to get the,maximum in value in reference to distance to the dilapidated bulkhead on the west side. That is the bulkhead along Midway Inlet. And to the position the house back as far as you can possibly can without encroaching or placing the house over the sanitary system. That's a direct quote from Mr. Goehringer. In addition, the Board asked to see if the sanitary system could be pushed closer to the easterly property line. Thereby, enabling the house to be pulled back to the north. That's towards the road. The hearing was re~ cessed to June 18th, '87. At that time, the applicant intro- duced Mr. Herbert DaVids a professional engineer and former director of the Suffolk County Health Department. Mr. Davids appeared to respond to the questions with respect to the place- ment of a sanitary system. Mr. Davidsexplained that the sani- tary system could be shifted to the east five feet. But doing so would not really accomplish anything. Nevertheless, we pro- ceeded to move the sanitary system five feet and the house five Page 2 - Thursday, March 17, 1988 Public Hearing - Peter and Barbara Herz Southold Town Z.B.A. MRS. MOORE (continued): feet. We also noted that~_.the well must be located near the road for practical reasons. '/lin that this was the location to obtain freshwater and such well location is dictated by the existing well to the east. That's the Delaio property which is also lo- cated up by the road. It was Mr.?~David's professional opinion that this cesspool could not be located any closer to the pond at the rear of the property. At this hearing, a revised survey by Young & Young dated June 16, '87 was submitted~showing the relocation of the house with the side yard setback of ten feet from the easterly side in accordance with the Board's May 21st request. Tkereby increasing the westerly side yard to 19 feet. So we have a January 12th, '87 where we moved over .... The existing site showed 23 feet to 27 from 7 feet from the bulkhead. On June 16th, we moved back to 25 and 27.7 and then again in June 20th, back again 30 feet and 32.7. In response to the Zoning Board's request to consider a revised layout, moving the sewage disposal system to the northerly portion of the property~which is out by the road, Kurt David submitted such a revised layou~5 to the Health Department for it's consideration on December 12th '87. This proposed layout was rejected due to the surface warners and or wetlands. That's an exhibit in this memorandum. It's the last two pages. By rejecting that alternative site, the Health Department then established the layout of the proposed sanitary system as shown on the survey dated June 29, 1987 which was approved by the Health Department on October 4, 1987. That system is a system that we must work with. With the mandated lo- cation of the sanitary system as approved by the Health Depart- ment, the only other method by which to reduce the necessary variance for the proposed house, was for Dr. and Mrs. Herz to go back to the architect, once again, and have him scale down to the extent possible the size of the house. This house has been done. The house has been scaled down to 53 feet. Excuse me. From 53 feet to 50 feet in width. The applicant is willi~ng to portion the increased side yards created by such a reduction in any manner the Board wishes. We can either make the easterly yard from 10 feet to 13 feet, increase the westerly side yard from 19 feet to 22 feet or split the difference. Dr. and Mrs, Herz are amendable to which ever plan the Board wishes. It is a well established rule that in area variances is founded upon showing a practical difficulty. It is a lesser ~standard than~an unnecessary hardship required to justify the use variance. In this particular circumstance, we can not make reasonable use of this lot due to... Pardon me. Practical difficulty is established when an applicant shows that as a result of the literal applica- tion of the zoning ordinance, we can not make reasonable use of his land to a particular size, shape or grade. In this particu~ lar circumstance, Dr. and Mrs. Herz are faced with the require- ments imposed by the Suffolk County .... TAPE ENDED Page 3 - Thursday, March 17, 1988 Public Hearing - Peter and Barbara Herz Southold Town Z.B.A. MRS. MOORE (continued): .... the property and its proximity to Little Peconic Bay and an open area of water to the rear of the parcel coupled with the location of the well and the sanitary sYstem of the adjoining property owners, dictates the location of the proposed system, proposed house. Simply stated, the proposed house for this property must be located after we have located the sanitary sys- tem. We have done that. WE have located the sanitary system which has been approved and we have therefore, located the house around that sanitary system. It is impossible for the applicant to satisfy the 75 foot requirement. The front of the house, what is ordinarily the front of the house even though on a waterfront, the front is the back, is clear that the applicant is entitled to a variance as a matter of law and as a matter of right because he is unable to comply with the setback in any way. The entire house is w±thin the 75 feet. The variance in relationship to the requirements; the location of the proposed house requires a substantial variance from the requirement. However, the unique size and shape of the property makes such a variance necessary. The 75 foot setback line from the highwater mark, the bulkhead, is located where the front of the house must be situated, ±n, light of the requirements of the Suffolk County Health Department. In other words, the entire dwelling must be located within what is normally a 75 foot setback. The variance requested is not unreasonable. The proposed house is only 31 feet in width and the new dimension, 50 feet in length. There- by establishing a building envelope for the house of 1~550 square feet together with a 12 foot wide above ground deck which runs along the rear of the house. The deck is elevated to 19 feet which is the entry level of the main floor of the dwelling. So we need that deck. We don't have access to the, direct access, to the outside without a deck that brings the rear yard entrance onto the back yard. There's no effect on governmental facilities. So that issue is satisfied. This' is a single family residence and will have no population impact upon governmental facilities. As far as the character of the neighborhood, the Board should consider whether the requested variance will create a substantial change in the character of the neighborhood or a substantial detri- men~ to the adjoining property owne.rs. The proposed must be lo~ cated to conform to the Health Department requirements. The property owner .... The construction of any home on the property previously undeveloped, will have an impact on the adjoining properties. Strict compliance with the standard of the Health. Department are required to insure that there is no substantial detriment to the adjoining properties. If the requested variance is not granted, the applicant is forced to seek a variance from the Suffolk County Health. The very detriment sought to be pre- vented may well occur. That is risking the health and welfare of the.,~djoining property owners and their water'.~supplies. Given the unique shape of this property and its proximity to the Bay and surface waters to the rear of the property, the house must be located where it's proposed. This will have an impact on the adjoining property owner in that the p~oriferal view, that's the ~P~ge 4 - Thursday, March 17, 1988 Public Hearing - Peter and Barbara Herz Southold Town Z.B.A. MRS. MOORE (Continued): pmoriferal view of the house, of the neighbor's house will be effected. However, the adjoining property owner continueS to have an unobstructed waterfront view. Which in-any event, is not cloaked with any rights £or that owner. In other words, you are not guaranteed a particular View from your property. Furthermore, I submit this aerial photograph which at the first hearing I submitted and I was holding it. You have seen this but if you'd like to look at it again. CHAIRMAN GOEHRINGER: Thank you. MRS. MOORE: As you can see from that aerial photograph, most of the homes are similiarly situated as this proposed dwelling. So the character of the neighborhood will not be effected. In considering whether an area variance should be granted, the Zoning Board should examine whether there are any means feasible for the applicant to pursue other than the variance to obviate the dif- ficulty. ~gain, given the unique location, size and shape of this property and its proximity to the waters, the property is rendered unusable unless the variance requested is granted. There is simplY no means by which to construct this single family resi- dence on the property without a variance. After considering the last criteria ~ the interest of justice will be served. After considering all the above factors..and determining whether the area variance is justified, the Board must conSider whether the interest of justice will be served by allowing this variance. Taking the proposition in the reverse, it would be injust to deny Dr. and Mrs. Herz who respectfully request that the Southold Town Zoning Board of Appeals grant the necessary area variance to en- able them to erect the proposed single family home. CHAIRMAN GOEHRINGER: Thank you Mrs. Moore. I was wandering if you might ask Mr. David if he could give us some inside in refer- ence to the other plan that we have kind of talked about in refer- ence to changing the cesspool area from the front of the lot since he's here tonight. MR. DAVIDS: Semi-retired, professional engineer. The revised plan that was sent in that suggested at the last meeting I was at, would be impossible to meet the requirements and standards of the Health Department. It would also be an abolishment of State D.E.C. re- quirements and I don't think the Town Trustees would be happy' with it either. Because the only location that you could put the sewage system would be within 40 foot or so of the wetlands, that pond to the west of the property. The neighbors' wells, both. the adjacent neighbor to the east and the neighbors across the street. All the ~Page 5 - Thursday, March 17~ 1988 Public Heairng - Peter and Barbara Herz Southold Town Z.B.A. MR. DAVID5 (continued): wells are located up by the road. So you have an impossible situation if you try to relocate the sewage system up closer to the road. Immediately you're dictated even with the 100 foot separatiOn between the neighbors' wells and the proposed wells of the Herz property. YOu only have 40 foot from that pond. Actually the Health Department requirements have rather recently been increased for wells such as this where you can get 40 foot of fresh water in the well. They've increased the distance that are required to 250 feet. So it would be prac- tically in the pond, the sewage system. The only place, this is a very unusual piece of property that I've seen as far as the sewage system is concerned. The only location is the one that's been approved by the Department that meets all the re- quirements. And by far, it's the best because the water sup- ply of the wells, both in the proposed well and the neighbors' wells, are over 200 feet and are up graded from the sewage sys- tem so there's no threat from the sewage system effecting their own well or the neighbors' well. CHAIRMAN GOEHRINGER: The only thing I wanted to ask you Mr. David was; I realize your unblemished service with the Suffolk County Health Department. But I was just wondering how close can a dwelling be constructed to a cesspool system? I~m going to be trite about it. We can call it all special kinds of names but I think we're just going to call it a cesspool. MR. DAV!D~ This happens to be what they call a five pool system because of the high ground conditions in this area which is very common along the shorefronts of Southold and the other eastern towns. The sewage system, the nearest portion from ths cesspool, the wall of the pool to the dwelling has to be at least t0 feet. Regardless of whether there's a basement or a crawl space or slab. CHAIRMAN GOEHRINGER: What do you do with the septic then? MR. DAVIE~ The septic tank if there's a basement, has to be at least 10 feet. If there's no basement, five feet. Again, that is the nearest portion of the wall. CHAIRMAN GOEHRINGER: Thank you very much. MR. DkVIE~ You're welcome. MRS. MOORE: Before he sits down, I'd just like to state some more information for the record. At the previous meeting, Klein & Klein submitted a diagram which showed the cesspool in red, the cesspool area in red with the house next to it. If I could have my expert explain why. that configuration could not work. I could tell you but I"d rather have him. Page 6 - Thursday, March 17, 1988 Public Hearing - Peter and Barbara Herz Southold Town Z.B.A. MR. DAVIDS: I did look at that diagram and it would not meet the requirements of the department in any way because your nearest cesspool would be right adjacent to the house itself. There wouldn't be any separating distance whatsoever and that's keeping just the minimum five foot from the property line. So it's not possible to put that sewage system alongside the house. CHAIRMAN GOEHRINGER: Moore? Thank you sir. You have nothing else Mrs. MRS. MOORE: I think Dr. Herz might want to say something. DR. HERZ: The last time I came before you I had three children. We just had a baby two weeks ago so we have four children. So we cut the house down already as much as possible. When we bought the property, we tried to avoid all this problem. We made sure there was a involved. We had the Department of Environ- mental Protection permit. We had a wetland permit. We had a test well done. And I' hope you'll see fit, that since we've been down here for two years trying to get this permit, that you can act on it in a matter as quickl your time. CHAIRMAN GOEHRINGER: Th else who would like to s like to speak against th name for the rec©rd. MR. KOZAK: I'm with Cro of the Delaio's. As sta you concerns the Herz ap single family home with ing bulkhead on Little P quire that lots adjacent Sound must be set back n be no less than 75 feet this particular case bec and was recessed to the James Cron appeared on ment can basically be s~ their property at issue from the existing 75%, 7 lying a 30 foot setback. feel that the proposed s and septic has to be loc feet from the pond area Department on the 28th o Department on the 4th of what different than that is unique, it's the desi little bit less complex ~' as possible. Thank you very much for ~nk you very much doctor. Is there anybody ~eak in favor of the application? Somebody application? Sir would you state your n and Cr0n~5$q$. We're appearing on behalf ted by Mrs. Moore, th~ application before 01ication concerning the construction of a ~nsUfficient setbacks concerning the exist- ~conic Bay.. Southold zoning ordinances re- to tidal wa~ers other than Long Island D less than 75 feet. In this case it would from Little Peconic Bay. A brief history, me before the Board on 21st of May of 1987 8th of June, '87. Both of those times, Mr. behalf o~ the opposition. The Herz argu- nma~ized by the fact that they believe that £s unique and would require a 60% variance foot setback requirements. Thus justi- They came to this conclusion because they nitary system made of five shallow pools ~ted in a specific location. )A minimum 100 in which a survey submitted to the Health December, 1987 and approved by the Health October. Our client's position is some- . We believe it's not the property that ~n of the home which is unique. And if a ~ome were proposed, the requirements of the Page 7 - Thursday, March 17, 1988 Public Hearing - Peter and Barbara Herz Southold'Town Z.B.A. MR. KOZAK (continued): 75 foot setback as well as the sanitary rules, would be met. Mr. Herz has not made any real efforts to reduce the overall complexity of the home to meet these requirements and that is even at the suggestion of the Board on a number of occasions in the past. The last meeting on the 18th of June, he showed that the cesspool requirements do not have to require a vari- ance and could be placed in a locale othe~ than which is pro-- posed. The cesspool system could be arranged with a different configuration to meet the both 10 foot setback requirement if the basement was proposed or the five foot setback if no base- ment was p~oposed. The cesspool system proposed is designed to grant a variance or requires a variance. We believe that if certain modifications were made, a variance would not be needed. Mr. in a letter dated to the Board on the 19th of June, had a similiar position and I'd like to quote the last paragraph into the record tonight. Concerning the house location, it is the responsibility of the applicant to present a plan which addresses the concerns of the Town and County. It seems possible to change the configurations of the proposed dwelling and configuration of the sewage disposal sys- tem to effectual greater distances from surface water. In fact, in the past when the property was acquired, a different cesspool plan was in fact submitted and approved by the Health Department and I'd like to call your attention to the survey which I pre- sented to you dated the 23rd of March, 1982. This plan was ap- proved by the Health Department. It had a much more simple home than that particular plan. And we submit that if a more simple home were proposed in this particular case, the setback require- ments could be met as well as the cesspool requirements. Those things should be taken into consideration in your determination whether a variance should be granted. Therefore, we don't be- lieve the applicants have really shown any practical difficul- ties in their application. We feel that the home that they're presenting is unique and not the property. For these reasons, we believe that the variance should not be granted since they have not met their burden in terms of showing that the property does not have any practical relief utility. That"s all. CHAIRMAN GOEHRINGER: Would you just, before you sit down, in- form your property owners that we will be do'wn t~ take 'further measurements and they may see us on a Saturday or a Sunday. They may see me on a Saturday. They may see other members of the Board during the week. And not to be concerned ~bout it~ will definitely identify ourselves if we're down in that par- ticular area. But it really necessitates our walking on your applicant's property, I should say. The neighbor's property in question. It's no~ the applicant but basically you're re-- flecting the feeling of a concerned neighbor. Could you give us an approximate distance between the house and the bulkhead? You don't have to do that tonight but just ask the Delaio's if We ~Page 8 - Thursday, March 17, 1988 Public Hearing - Peter and Barbara Herz Southold Town Z.B.A. CHAIRMAN GOEHRINGER (continued): they could give us an approximate distance. I will be measuring other things other than distance from that particular area. But it appears to be a fairly great distance from the spotting I see on the survey. If you wouldn't mind sir. I thank you. Is there anything you'd like to say in rebuttal Mrs. Moore? Is there any- thing you'd like to say? I just figured I'd take your rebuttal first, i If there's any other opposition, we'll do it after. MRS. MOORE: When you refer to the aerial photograph as well as your inspections, you'll notice that this is the only property in the area that has the pond in the back, the inlet on the side and the Bays the front of the house or the back of the proper'ty. Is Mr. Delai~o is very fortunate that he has a very beautiful waterfront piece of property with all the dimensions that will allow him to build a very substantial home meeting all these set- back requirements which we can not do. The other point I'd like to make is that the Delai~o house from my inspection, looks like it was built probably in the 1950~s and I don't have that number. I would suggest that he may at one time want to come in and re- novate his home. Put a beautiful home on the property and that to deny my clients, a new home a modern home when he has the 1950's what is essentially, summer bungalow, because it doesn't conform to the taste of the summer bungalow that he owns is unfair. .So please keep that in mind. CHAIRMAN GOEHRINGER: Thank you. iIs there anybody else who would like to speak against the application? Any further comments from either side? MRS. MOORE: When you notice on the aerial photograph, you'll see that the Dela~io house is really one of the few houses set back as far as is shown on one of the surveys, actually on all the surveys. On the January 15, 1982 survey, we do have the Delaio property, the one that is submitted to you. The Delaio property is shown there. So it might be available for your inspection as far as the measurement. CHAIRMAN GOEHRINGER: Thank you. Hearing no further comment, I'll make a motion closing the hearing reserving decision until later. Ail in favor - AYE. TRANSCRIPT OF HEARING SOUTHOLD TOWN BOARD OF APPEALS REGULAR MEETING OF THURSDAY, MARCH 17, 1988 Appl~. No: 3687 Applicant(~ JON C. KERBS Location of Property: E/s Narrow River Road, Orient County Tax Map ID No. 1000- 27- 2 - 5 Board Members Present: Chairman Gera~d_-- P. Gaehringer, Members: Grigonis, Doyen, Douglass.(Mr. Sawicki was absentD) Also Present: Victor Lessard (Building Department) Linda Kowalski, Z.B.A. Secretary and approximately 75 persons in the audience. The Chairman opened the hearing at 8:52 o'clock p.m. and read the notice of hearing and application for the record. CHAIRMAN GOEHRINGER: I have-a copy of a survey which is not necessarily depicting the exact size of the house which is the one I placed out here; produced .by Roderick VanTuyl, P.C. and surveyed with a most recent date of August 16, 1985, indicating the proposed house and elevations and marsh grass, etc. And I have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area and a copy of the D.E.C. permit indicating the house increased to 47 feet by 57 feet~ which is quite clearly stated on here. I just want to point out for the record that in reading th~ legal notice in this particuA. ~r~ hea~ng we are dealing mainly with an interpretation at thia particular time. I'd like everybody to be aware of the fact that we do not, although we are extremely sensitive and it was really probably very good that most of you sat in on the last hearing so that you were aware of the fact and the agonization that we go through in dealing with the position of wells and cesspools, the position of houses in specific areas where there are bulk- heads, where there are not bulkheads. And in this particular case with the prior hearing, we had a bulkhead, we had a de-~ lapidated bulkhead. I'm not talking specifically about that particular case but basically issues that are germane to this case and that is; we are dealing with setbacks. Although we are extremely sensitive to the environment as we were in that particular case because for the people that are present here,~ that particular case went three hearings and we~were dealing~ with specific changes of design of the house; specific chan~s of positioning on the lot and we're going to go down and measure again before we render any decision. For a similiar type of situation is existing here. And in that, we are~dealing with a setback line from a particular area, from a particular govern- ment, I'll call it municipality, and that's the New York State Department of Environmental Conservation. And we're dealing with our jurisdiction in the particular area under 119.2 of the zoning code. It's a similiar overlapping jurisdiction from a ~Page 2 - Thursday, March 17, 1988 Public Hearing -Jon C. Kerbs Southold Z.B.A. CHAIRMAN GOEHRINGER (continued): setback issue that the Trustees have from an environmental issue. And I'm not talking for the Trustees. The President of the Trus- tees is here tonight and if the hearing is required, maybe we'll ask him some questions. And if he so desires to answer them, based on that particular issue. But we are talking mainly about a setback and an interpretation of this particular ordinance. I just want to point out for the record that it is clearly stated in 199.2 that from the Bay and from the Creeks; our actual juris- diction starts in excess of 75 feet. And the maps that I have before me are basically maps that are~dealing with in excess of 75 feet and that's a~l I can say at this point. So we'll start with whoever would like to present this particular application and I believe that is Mr. Angel. MR. ANGEL: My name is Steve Angel, Esseks, Hefter and Angel. We represent the applicant, Jon Kerbs. As Mr. Goehringer pointed out, what we're here for is primarily an interpretation under section 100-119 2B of your code which requires setbacks along waters other than the Sound at 75 feet. As you probably saw-from the ap- plication that was submitted, the application concerning th~s prop- erty, appI,ications before other agencies, have a pretty long his- tory. And I want to set the stage for this application by giving you copies and submitting in evidence the various germane approvals and notices, the ones that relate to this issue. To set the stage for you, you all have a survey. This is a locked parcel of land over 32,000 square feet in area located on Narrow River Road in Orient. It's sandwiched in between a town boat launching ramp and existing small marina. As I said, you probably have all seen the survey and perused the application. The first document I should point out initially that it's our position that the proposed con- struction is all more than 75 feet from the wetlands line no mat- ter how you measure ~t. And no matter what definition you use. Whether it's the state definition or the definition containe~ in your code. Now, the first thing I'd like to bring to your atten- tion and introduce is a copy of the initial D.E.C. Tidal Wetlands Permit on this property and that was issued on May 2, 1986. It's hard to work as a lawyer w~thout a lecturne. It's like a juggling act. It's hard to carry that. 1 should note, by the way., that the face of this D.E.C. permit reflects' that it was issued so that all parts of the house could be a minimum of 75 feet from tidal ~t- lands. There isn't a map appended to this particular application but it reflects the setbacks that are in the surveys... The sur- vey that was submitted to the Board Of Trustees and their approval which I'm going to get to next. The second thing I want to bring to your attention is the approval issued by the Board of Trustees. Now, I was glad that you made those comments initially Mr. Chair- man, because this particular application went through a lengthy review process with the Board of Trustees. This inch or inch and a half thick document is a single ~opy of all the paper generated by the Trustees in connection with this particular application° Again, this is an applicatio~ for a single family' home. Now~, the Trustees took jurisdiction and issued an approval at their meet- ing of June 25, 1977. It's contained in a letter to the appli- cant dated June 30, 1987. I'd like to issue that as my second document. One of the interesting aspects of that second docu- ment is that the T~ustees did not make a finding, an explicit ~Page 3 - Thursday, March 17, 1988 Public Hearing - Jon C. Kerbs Southold Z.B.A. MR. ANGEL (continued): finding at variance with the D.E.C.'s permit which, as you know, ~equires the 75 foot setback. The Trustees determination does not state how far the proposed construction is planned to be from the wetlands. You can read it. There's no position that they've taken. Now, next .... I feel like this is a law school course because the next, we went to the Health Department. A lot of jurisdictions. And the Health Department granted a permit to con- struct a single family home on this particular site and permitted the location of a septic system in a position outlined by the Health Department and also for the use of a well for domestic water. And I'd like to offer that in evidence also. After re- ceiving all these things, our client came down to the Building Inspscto~ and submitted some plans and made application for a building permit and got a notice of disapproval which led to the initial filing before your board and here's a notice of disapproval dated October 21, 1987 which I'd like to submit as my fourth docu- ment. Next, time had been passing for a while and the~D.E.~C, per- mit which was issued in May of 1986 was coming to a close and he had not gotten approval to build his house yet. And he went back to the D.E.C. for an extension of his permit. But this time, he went back to the D.E.C. and decided that he wanted to be extra special conservative and he moved back the building envelope, I don't know, 10/15 feet. Is that correct Jon? About 10 feet. And the D.E.C ..... And asked the D.E.C. to confirm more explicitly their finding that the property, well that the location of the proposed house was more than 75 feet from the wetlands line. The D.E.C. fortunately and unbekn0wDst to my why, complied. I meant that facetiously. But the ~E.C. reviewed his application and is- sued an amendment to the permit on January 6, 1988 and I~d like to introduce that as my fifth document. Next to that isa marked up photocopy of a portion of the survey you have.on the table before you. Also a marked up copy of the survey. This is the one on the table that was actually reviewed by the D.E.C. You'll see it's stamped right on it. And you'll see the marks in pencil and per- haps you could take that in evidence also as 5A or B. Now, I'd like to bring your attention to this amendment to the permit dated January 6, 1988 that I just gave you and note that, I guess it's the third paragraph from the bottom and it's been typed in. It states; this letter, under 3 after semicolon, this letter also confirms that the 47 by 57 foot building outline shown on said[ plan is 75 feet from the D.E.C. determined tidal wetlands line. That explicit determination was missing in the original determination but here the DoEoC. has put in writing that that plan that ~$ just annexed indicates that the building is more than 75 feet or at least 75 feet from the tidal wetlands line. Now, the next thing that occurred in this lengthy scenario was that Mr. Kerb went back with his new D.E.C. permit and his more conservative survey and went down to the Building Inspector's Office and resub- mitted his plans taking the position that he had Trustee approval, he had Health Department approval, he had D.E.C. approval and he was more than 75 feet from the wetlands. The Building Department ~.Page 4 - Thursday, March 17, 1988 Public Hearing -Jon C. Kerbs Southold Z.B.A. MR. ANGEL (continued): again took the position that there may be a question as to the 75 foot setback and issued a notice of disapproval dated January 28, 1988 which I'd also like to give you or a copy of which I'd also like to give you. Now, as I stated initially, it's our po- sition that the construction area certainly as reflected on the second survey and as confirmed by the D.ECC. is more than 75 feet from the wetlands line. Now, rather than rely entirely on the documentation on this issue of the interpretation, we brought an extra witness who I'd like to introduce to the Board. It's ~Dy H~Je~ from En~ Consultants Inc. in Southampton wh°, as you are probably aware of, has done wetlands analysis in numerous situ- ations. May I call Mr. Ha3e? CHAIRMAN GOEHRINGER: Certainly. MR. ANGEL: Rather than ask him questions, with your approval, perhaps I can just ask him one or two questions and he can tes- tify in narrative form. I'd like him to give his work experience over the last, well, since he's been working. And also his edu- cational experience after high school and have him testify as to his view of his task in this particular situation. What he was hired to do and what he in fact observed and the basis of his ob- servations. I think that he'll testify that he did a site inspec- tion of this particular property and made a conclusion as to the location of the wetland/upland boundary. Mr. Ha~e. MR. HAJE: I'm Roy Ha3e. President of En Consultants, Inc. The business address is 1329 North Sea Road in Southampton. My educational background is a Bachelor of Arts Degree in Biology at Queens College, Master of Science Degree in Marine Science from C.W. Post College. Another Master of Science Degree in Marine Environmental Studies from the State University of New York at Stony Brook. I was employed by the New York State De- partment of Environmental Conservation for approximately 11 years. Much of that time in the position of alternate local tidal wetlands and freshwater wetlands permit agent at the Region I office in Stony Brook. I also worked for the U.S. Fish and Wildlife Service as a Marine Biologist. I began En Consultants in 1980. The firm is concerned with the evalua- tion of property. Especially property in and about the water and wetland, preparation of environmental permit applications, environmental impact statements, etc. I was hired by Mr. A1 K0ke who was a previous owner of this parcel for the purpose of securing the necessary approvals to construct a one family dwelling. In September, 1985, I visited the property for the purpose of delineating the edge of wetlands and to generally evaluate the parcel. At that time, I placed flags along the edge of what I considered to be the tidal wetland boundary and took photographs and so forth. I then notified the sur- vey firm of Roderick VanTuyl to locate my flags and place them on the survey which was subsequently done. Following that, the home was shown on the survey as 75 plus feet from the edge of wetlands as I had located them and as they had been shown on the survey. Applications were then prepared and filed with the New Y~rk State D.E.C. and a request for . ~Page 5 - Thursday, March 17, 1988 Public Hearing -Jon C. Kerbs Southold Town Z.B,A. MR. HA~J [: (continued): a letter of no jurisdiction from the Southold Trustees. A permit from the D.E.C. was issued and initially a letter of no jurisdic- tion received from the Trustees. Following that, the Trustees made a, what I assumed to be a subsequent field inspection and determined that a permit was required. Following that, the ap- plication was in fact prepared and filed. It was my determina- tion at the time and remains at this time, that the edge of the wetlands as I had shown that on the survey, is a good and reason- able one. It is based upon pre ponderance of vegetation located on the property and the ti ality which effects it. The confu- sion perhaps, which subsequently arose, appears to be based lar§~e- ly upon the presence of, I believe, one species and that is Baccharis Ha~imif0]ia, or groundsel bushes, being the common name for it. This is a species which is indicated in the New York State Tidal Wetlands Act which is Article 25. /It is however, a notoriously poor indicator of tidal wetlands. It can grow just as happily in areas which are not in fact tidal wetlands. It can grow in a transition zone. It can grow in an adjacent area. It can also grow a considerable distance from any tidal action and in fact, can be seen along roadsides which are never wet with tidal waters. It would appear that there is enough salt content carried inland perhaps by winds or whatever the vehicle is to bring the salt saline mn. That that is efficient for that to exist. A very low saline requirement in my opinion. That species is found inland of the'llocation of where I have shown the wetlands to be. I do not consider that to be, however, tidal wetlands themselves but rather this adjacent area. The New York State D.E.C. agreed with my position. And based upon that, is- sued the permit. Thus it remains our position to date, that the location of the house as it's shown and Mr. Kerb~is the subse- quent owner as is mentioned before, relocated the house landward from that original location. I believe that house to be now at least 75 feet and probably more from the edge of tidal wetlands. CHAIRMAN GOEHRINGER: Thank you sir. MR. ANGEL: Can I just ask him a couule more questions? CHAIRMAN GOEHRINGER: Sure. MR. ANGEL: When, in your prior position working for the New York State Department of Environmental Conservation, did you have occa- sion to do analysis such as the one you did for the Kerb property? MR. HAQ[: Yes. Many times. MR. ANGEL: And since that date, have you done the~? MR. HA JS: Many times. Hundreds, probably thousands. MR. ANGEL: Ok. No further questions. CHAIRMAN GOEHRINGER: Thank you. ~ .Page 6 - Thursday, March 17, 1988 Publ, iC Hearing - Jon C. Kerbs SouthQld TO.~wn MR. ANGEL: There.~s~a second aspect to this application Mr. Chairman and members of the Board. And that's in the event that you make a determination that we're within the 75 foot area, we have an alternate request for a variance. And I want to offer a bit of testimony on that alternate theory without prejudice to~[aim of course that a variance is not necessary. It's our position based upon the documents that we submitted, the ~position of the D.E.C. and Mr. Haggie's testimony,.that the building envelope exceeds a distance of 75 feet from the wetlands. Nevertheless, we don't want to be caught with our pants down in case you make a finding to the contrary. We want to offer some evidence of practical difficulty. I want to state first in a conclusionary fashion, that it's pretty self-evident that if no variance is granted from this 75 foot setback and the property is precluded from development, that there.would be a substantial diminution of the ~alue of the property. Perhaps to nothing. And I brought Mr. Kerbs here to testify to his investment in the property to show what his loss would be. Mr. Kerbs. MR. KERBS: My name is Jon Kerbs. I'm the owner of the property. I got about $80,000 in the property. And if I couldn't build on it, it would be next to worthless. MR. ANGEL: And Mr. Kerbs, what do you do for a living? MR. KERBS: I buy and sell property. I buy something and maybe build a spec house or buy a piece of property and rebuild it, sell it, rent it. MR. ANGEL: And have you worked in the real estate industry? MR. KERB: Yes. I've been doing this since 1976 and from the beginning of 1973 to the middle of ~76, worked as a staff praiser for Southold Savings Bank for real estate appraisals. MR. ANGEL: No further questions. CHAIRMAN GOEHRINGER: Thank you. MR. ANGEL: That concludes my presentation subject however, to perhaps rebuttal if I deem it necessary. CHAIRMAN GOEHRINGER: Thank you very much Mr. Angel. Is there anybody else who would like to speak in favor of this applica- tion? Anybody like to speak against the application? Kindly' state your name ma'am. CATRiONA GLAZEBR00K:I'm from the firm of Twomey, Latham,.Shea and Kelly and I represent the Northfork Environmental Council and also the Southald B~yman's Association. In addressing the first is- sue whether the Zoning Board of Appeals should have jurisdiction, clearly they should. Mr. Angel was correct in one thing about the record is very extensive here and it point§ directly-to the fact that this property is at least 45% wetlands area. I~d like to read portions of some documents and then I'd like to enter .Page 7 - Thursday, March 17, 1988 Public Hearing -Jon C. Kerbs Southold Town Z.B.A. MS. GLA'.Z[BR00K(continued): them into the record. In fact, I'll do that all together rather than one by one and break up my presentation. The first document that I have is a letter that was written by Ellen Larsen, who at the time, was a Trustee that when the application came before the Trustees in a request for the permit. She sent this letter to the D.E.C. She was incredibly concerned that the D.E.C. not grant the permit because she had been out to the site and inspected it and she goes on to say; the agent states that the proposed dwel- ling lies 90 feet landward of the tidal wetland. After several on site inspections, it is the opinion of this Trustee that the proposed dwelling is situated within 3 feet of high marsh. I offer the following data to support this conclusion. This parcel is possibly one of the last undikedparcels abutting Hallocks Bay. Spartina alternaf]0ra abound which is a wetland indicator species, abound on the seaward portion of the property on the mud and sand fiat condusive to its growth and germination. Furthermore, ground- se] bushes dominate the upland perimeter to a depth of 90 feet landward. Clearly establishing the area's high marsh as identi- fied in Section 661.4 of the Tidal Wetlands Use Regulations. Ground contours indicating where the salt water penetrates the upland during storm tides are clearly visible on inspection. In addressing Mr. Haje's comments that groundse] is not neces- sarily a determinate of salt water wetlands. That may very well be his opinion but currently it is law in the code and under the State Environmental Conservation Law, that groundsel is most clearly a wetland indicator species. The code reads, this is from Section 97-13; Tidal Wetlands; all banks, bogs, meadows, flats and tidal marsh subject to such tides upon which grows or" may grow some or any of the following: salt hay, black grass; saltw0rt$, sea lavender; tall cord grass; high bush cat tails and ground se]. Environmental Conservation Law Section 25-0103 states that wetlands are defined as; all banks, bogs, meadows, flats, tidal marsh subject to such tides upon which grow or may grow some or any of the following: here again, groundse] is listed as a wetland indicator species. Another document that I'd like to submit into the record and read a portion of is a report that was prepared by Heather Kruszak, who at the time when the applicant had this permit application before the Trus- tees, was with the Conservation Advisory Committee. And she states after going to the property and having several, perhaps possibly as many as ten on site inspections, that the dominance of the understory suggests periodic salt water flooding, i.e. Spri~ high tides and storms. The predominant shrubs are ground set-~ bush and marsh elder with a saltmar~h species and salt tolerant. There's also another report that was prepared by Mr. Bredemeyer when the application was reviewed by the Trustees. I'm not going to give you a copy of that because when I reviewed the report today, I realized that you have the entire report. I know that in the report there are two charts that are shown that Mr. Bredemeyer submitted. One of them shows groundse] all the way up into the building envelope itself. Another re- port shows the marsh or the wetland indicator species going ap- proximately 45% into the property. So even Bredemeyer himself, Page 8 ' Thursday, March 17, 1988 ~Public Hearing -Jon C. Kerbs Southold Town Z.B.A. MS. GLAl[BROOK(continued): in the reports that were submitted, show that this area is densely populated With wetland indicators. The last report that I would like to have put on the record is from our own Environmental Spe- cialist, Lawrence T. Penney. He is an Environmental Planner and Ecologist and currently serves as a Natural Resource Director for the Town of Easthampton. He received a Bachelor of Science De- gree in Biology and Wildlife Conservation from Cornetl and he al- so has his Master's Degree in Biological Science from San Fran- cisco State University. He is currently working on a doctorate in Animal Behavior and Marine Biology at the University of Sante Barbara. He went to the site and states in part; that the co- parcel is a parcel situated on Hallock's Bay which I would clas- sify as marginal for building purposes. Meaning, that it is highly constraint for a building because of environmental con- siderations. Hallock's Bay on which the parcel fronts, is one of the most productive shellfish regions in the Town of Southold. Its waters are presently certified for shellfish~3~he parcel is low ]yin§ barely reaching 7 feet above sea level.3 Approximately 45% of the parcel is occupied by wetlands. These wetlands con- tain typical wetland species and extend into the right-of-way of Narrow River Road by way of a sizeable swale. He also states fur- ther on his report, I won't quote him directly, but you'll see when this is entered into the record, that it is his belief that the building envelope is only 10 to 15 feet from the wetlands. I think that based on the documents that I've just read from and will be submitted into the record, I think that this property is clearly within your jurisdlc~ion. Beyond being clearly within your jurisdiction, I think that it has such extensive w~tlands that any building on the property should not be allowed and no variance should be allowed. This Board should most adhere to the New York State Environmental Quality Review Act when review- ing the application. And at the very least, in this review, that the simple requirement of SEQRA is that if a project may, which is the key word "may", have a significant impact on the environ- ment; that an environmental impact statement should be prepared. I think that based on the fact that this building is practically going to be built on marshland, determines that it may have an impact on the environment and an environmental impact statement should be requested. This will also help to get any mitigating features which may be incorporated into the building itself an~ the septic systems which We're greatly concerned with and the amount of seepage proposed up there and the amount of fill which has now gone up to 250 cubic yards which will be going directly onto these delicate wetland indicators. The applicant states ~hat he will have practical difficulties according to the Walsh verses -McAllis case. He is requesting an extremely substantial variance here~ If the wetlands are within the 3 feet to 15 £eet from th~. building envelope, we're talking about a variance of 75 to 90% of the variance from what is allowed under code of ths 75 foot setback requirement. I realize the dilemma that the owner of the ppoperty is involved with at the moment. When he p~rchased the property I believe there was some dispute as to the location of the wetlands at the time. And being an experienced sellsr and buyer of real estate in the area, it could have been foresee- able that this property may have had building problems due to the Page 9 - Thursday, March 17, 1988 Public Hearing -Jon C. Kerbs Southold Town. Z.B~A. MS. GLAZ58ROGK(continued): extensive wetlands on it. The dilemma that the Board is faced with, perhaps not allowing this builder to build on the proper- ty having r~ceived the variance, may be solved. Currently the county ..... I realize when reviewing the file, that the Con-, servation Advisory Council on August 7, 1987 made a request to the Southold Town Trustees that the property be purchsed by either the D.E.C. or the county. This may be a possible alter- native to building one.the property. I know at this very moment, the Department of Environmental Conservation is looking into pur- chasing the property because they believe it's in a very signi- ficant area and ~hould not be developed. I believe Steve Lats0n has a few words to say about his own personat knowledge of the area. And I'd like to say that and also I'd like to enter the documents that I've read from onto the record if I may. CHAIRMAN GOEHRINGER: Thank you. STEVE L~iSON: I guess inadvertant]y i'm next. CHAIRMAN GOEHRINGER: Yes, that's what it sounds like. MR. LAISON: From the Baymen's Association. I don't think I need the microphone. This is a wonderful chart that we drew up for the Trustees. It didn't work for them, so it probably won't work for you. Anyway, in May of '86 I went down to this proper- ty because our treasurer said; oh boy, they're doing something down there, putting stakes up. What's going on down there? I said I really don't know Frank. So we went down there. I walked in on this part of the property. This is Narrow River Road, boat ramp, p]usha~s, water, Haltock's Bay. I walk down there. It has not rained for three weeks and the ground is wet. It must be wetlands. I looked around. Oh yeah. There's some wetland plants around here. Here and there, scattered around. I would say maybe 20% wetland plants. I said okay. Looking around some more, I see a stake right in the middle of the whole place that say's cesspool. Oh Jesus, this is weird. So then I go further, I see a corner of a house right next to a groundse] bush which we've already had a big discussion on. I said well, here we are. I guess this is the site. So anyway, I meandered down in through here. And once you get down to about here, you can't keep going. This area is heavy marsh. And John Bredemeyer himself, said one day, at gne of these meetings that we had, I ~end to agree with your wetland.~line~ down there Steve' So I felt good about that. I would say over here we've probably got some wetlands too but it's in the form of fragmities which is another one of these major .diSputed areas. It's a contended wetland indicator. So anyways, we actually feel that basically this area is a pretty good representative of wet- lands as is written in the Town Code. We didn't get too far with that. we talked to the Trustees. I felt we'd go to the Trustees and they'd go down there and go; oh yeah. Look at the wetland plant. They're right. You Baymen, you're right in there. Thanks a lot for helping us out. Well, as it turned out, that wasn't the way it worked. Meanwhile, the other people that we're trying to develop this property hadn't provided anything. They said the wetland line is down in here somewhere and that's all they said. Page 10 - Thursday, March 17, 1988 Public Hearing - Jon C. Kerbs Southold Town Z.B.A. MR. LAIS-@N (continued): The first thing we did was write a letter to the Trustees saying that we felt that Mr. Haggie either didn't have any idea of what a wetland was or that he was lieing and that we felt there's a real question mark in this whole thing° Anywayf let's just move along here really rapidly° In August of '86, we!re getting pret- ty frustrated. They say' it's not wetlands and this.and that and there's a lot of questions and la ti da ti da. We'll go down there with a transit. We'll m~et with a couple of Trustees and really show them why these are wetlands. So we go down there with a transit and this happened to be August 7th and we met with John Bredemeyer and Jeff Goubea, u-and it was Pete Wentzel and myself. We set the transit up at this site right here on the edge of:the property. We shot high tide which is right here. We shot up in- to a_:site here, here and here. Now, I'll explain the contour lines on this thing. This contour line is listed at 5 feet ac- cording to the chart by VanTuyl. This line is 6 feet. Now first, you could stand down here, the whole property is down in here. I'm six feet tall, so I know these numbers are kind of weird.. Well, finally we went to the Trustees, what are these numbers? Finally they got a reply 'from VanTuyl that these numbers are mean sea level. Well it turns out that mean sea level is roughly six tenths of a foot below low tide° Well, that's interesting. I don't know where this mean sea'level iSo Apparantly it's in Redhook, New Jersey and it was in 1929. That's what it's from. All this stuff is stupid. I'll tell you, if you've got any com- mon sense, you can go further here° You .won't get anywhere ac- tually because none of them makes any sense. Anyway, we shot these sites with the idea that VanTuyl said; well, you subtract three feet from these numbers. So this line here now represents two feet above sea level. .~nd as you can see, this area back here with the septic system is even they admit is below two feet. And this is below high tide I should say which is pretty perti- nent.- This is six feet. Ok. Here we shot a site. Theoretical- ly, I should say three feet. Theoretically, was three feet. Number four is eleven inches. That's eleven inches above high tide. Number three over here which is pretty near above the three foot area and pretty far from the two foot area, is 16 inches. Finally, way up here in the heart of the property, we actually got up to, my god, 18¼ inches. Here were are in the heartland a foot and a half above sea level. Anybody can figure out and many people have testified that any major storm such as Nelson, Gloria etc. and so forth, there is no land here. Our contention is that this area gets flooded periodically every year and that there are wetland indicators. And according to the code, that is the way it is. If you flood every year annuallyf several times in springtime, etc. and so forth and you have in- dicators, it's a wetland. So we just went by the code. Finally, in December 3rd of 1986, I wasn't doing too much that day. Scal- lopping wasn't too good that year and I went down to the water. I said; boy, the tide is really coming up and it had been blowing that night about 20/25 miles an hour out of the east. So we all know that's when you get some good high tides. And I never ac- tually seen water in the back here. I really didn't want to go down there during Gloria. So I went down there this day. Ac- tually Gloria happened before this anyhow~ I went down there ~age 11 - Thursday, March 17, 1988 Public Hearing -Jon C. Kerbs Southold Town Z.B.Ao MR. LAT$~8_N (continued): that day and I stopped down here at first to park my truck. The water was right in here, right at the edge of the ground$c~--3~ right at the edge of where we shot this eleven inch line. I checked at the boat ramp here and I could see the tide had already gone down about six inches. So I said, well, that's interesting. Now i know why this area is all official high marsh and not this stuff that's growing 15 feet above sea level. It's only eleven inches and it floods periodically every winter. Then I went back up in here. Now, unfortunately~'_I took a couple of photos. They weren't the world's best photos. But also unfortunately, I gave them to our lawyer and they lost them. But anyway, I will testi- fy that I witnessed this and I saw this and there seemed to be a lot of testimony earlier by the other lawyer, that I took these photos here and measured the depth of the water. The water was roughly 6 to 7 inches deep up here..And it was pure salt water._ I drank it. I spit it out also. Simple, 11 inches, subtract 6 inches, you're about 5 inches above sea level up in here. I don't know what else I can say. I mean this is a really low area. It's still where theytre going to put the septic system. This just is not the way to go. I really hope that Jon gets back his $80,000. The D.E.C. pays him 85, so he'll make a little 5 there. ~iI hope that the fact that I lost about $20,000 three years ago surf clam- ming, that maybe they'll take me into consideration too. Life's a gamble here. Anyway, I don't have that much more to say. One issue that has been brought up, is that we have a town boat ramp here, a minor marina here with boats maybe up to 20 feet long. I've kept my boat at this marina. At. low tide, you have about 6 inches of water and so big boats don't really like it there. One of the arguements was that well, you got all this heavy duty use which isn't use. The marina area and these boating areas are not used heavily and they're used by very minor little boats. We have the argument that well, you got this and this, then what harm is this. Well everybody knows the more possibly sources of contami~ nation you have, the more you have. And the less chance you have of good water flow. It's all pretty simple. And recently, I had the opportunity to see the latest shellfish sanitation guide that the D.E.C. is going to try to implement this year. And I'll tell you, we're going to be lucky if we have any creeks31eft for shell- fishing because they're going to do a shoreline survey now. And on the shoreline survey they want to know everything, every single house, every single drain, every single everything. And if New York State does not comply with this, o~r clams are not going to be shipped interstate. If we do comply with this in many instan- ces with certain circumstances, if even water quality is good, they're just going to go in and say, you got all this stuff in there. Okay, ex that area, no good. The future is that we should heed the Long island Regional Planning Board. It 1984 they came out with a tong point source handbook~ Hundred foot buEfers from the~furthest inland wetland indicator. This is Long Island Re- gional Planning Board. A lot of really good people from Long island trying to put together something that made sense. Ob- viously no towns, no jurisdications are paid much attention to this year and I realize there's a lot of difficulties. But I ~ .Page 12 - Thursday, March 17, 1988 Public Hearing - Jon C. Kerbs Southold Town Z.B.A. MR. LA~N (continued think if any instance where we can say; well, if you can"t develop it, we're not going to rob you° We're going to try to get your money one way or another, we"re going to get this 2% bill passed so we can get money that way° And in this instance with the D.E.C. having the money, good. But we-absolutely have to stop saying no to developing in certain areas or.what is left of our heritage here is absolutely going to be gone. So I don't have much more to say. Thank you very much. CHAIRMAN GOEHRINGER: Is there anybody else who would like to speak against the application? Yes. MR$.LARSEN: Good evening Mr. Goehringer. 5]~e~ Larsen, Councilman for Southold Town, former Trustee. I'm not here ~ither tonight to speak for or against this application. I would just like to re- late to you my experience as a Southold Town Trustee during the re- view of the Kerbs application. When it'was initially submitted to the Board for a request,-as Mr. Haggie stated~ for a waiver, was waived based on D.E.C. Tidal Wetland Line. The Board voted on a 4 to 1 vote to waive t~e project. I spoke with the Board members and said, guys, we ought to look at this closely. It's awfully low. We went back and looked at it and we determined that a per- mit would be needed from the Trustees. An application was submit- ted. At the.time, it was the opinion of the C.A.C. and certain members of the Board H,~]0~kt~ Ba~was going to be considered as a critical environmental area which it will be designated as such on March 24th. That the parcel was particularly low and we should re- quest a long environmental assessment form. Now, what_~the219ng~_ environmental assessment form will basically do is tell us how many acres of wetlands~ how many feet of wetlands on the property, how much is comprised of that and then we can go back and look at it and determine whether all the environmental assessment form was done. When we looked at the contours, we could tell that the pro- perty was low. At that time, we asked the applicant, according to our code that a map be submitted showing the property elevations on one foot contours. The application, as was stated, took a year and a half to be approved. A public hearing was held and there was much opposition from many people in Orient on the effects if this were to be built. We had, by the ~e$~de~f the Trustees' s$~rad-~me3- that the matter was placed back on the agenda for a vote° We never received the topo. We never received the long environ- mental assessment form. We reviewed this project abutting Hallock's Bay to the same extent that we would review a house that is 75 feet from a wetland line or a high' water mark with elevations of 10 or 11 feet above sea level. When Mr. Haggie stated that he d~d feel that ground ~e] ~ was a wetland indicator, a ground sci bush is a bushy bush that lines the high water mark of any creek in Southold Town. It's indicat6r of the landward portion of the high water mark. This particular case on the Kc~ke property, the ground was relatively undisturbed. It is the opinion of many that it was a wetland indicator including Mro Bredemeyer himself. We never really looked at the~impact as a result~ of the proposed con- struction. The house, the property is in single and separate owner- Page 13 - Thursday, March 17, 1988 Public Hearing -Jon C. Kerbs Southold TOWn Z.B.A. MR$.LARSEN (continued): ship. Heather Kreusak who was a member of the C.A.C. and still is, submitted a wetland survey based on what the C.A.C. was asked for at the time. A wetland survey of the property as Ms. Glas~~ - She~said_her name was, indicated. At that time, it wasn't good enough for the Board of Trustees. They wanted a vegetation of the slopes specific to the site plan which was_the reason that Marty Garell was dismissed from the C.A.C. because he didn't co- operate with the Board off.Trustees. My contention was that the applicant didn't cooperate with the questions that the Board of Trustees asked. I would like to ask you if you had a long en- vironment form. Has this project ever been addressed environ- mentally? A D.E.C. application was submitted as evidence where the cubic yardage went from 100 to 250 cubic yards of fill. That permit is invalid on Trustees' standards. And never in my experi- ence on the Board of Trustees, did I see an applicant get an amend- ment to a permit to increase the cubic yardage. The applicant would have to come back in, reapply to the Board of Trustees and go through another public hearing~to do this. I would say that in the case of the ~0~e~ the D.E.C. Tidal Wetland line was moved landward by the Trustees in some instances, up to 72 feet~of their determination by the very same Board, moved the land line- ward, moved the D.E.C. wetland line landward~i! Until the infor- mation is really supplied, until a determination has been made which I think it is, I think it is a wetland, I don't feel that the Board has ~he~'information in front of them to make a deci- sion on this. Thank you. ~ CHAIRMAN GOEHRINGER: Thank you. Is there anybody else who would like to speak in opposition? We'll go back for rebuttal. MR. ANGEL: Just a couple of brief points. One general observa- tion and it relates back to the comments that ~Mr. Goehringer made at the beginning of the hearing. Is that; you have before you the issue~of the wetland setback. Other agencies have reviewed the environmental concerns on this property. The large record of the Trustees, the D.E.C. and the Health Department have all exercised some expertise within their oWn areas of concern. Now, I've got a couple of factual things I'd like to bring before you. One is; though it's not really relevant because it was before the Trustees, but I don't like people saying things that really didn't occur. There was one statement there that the applicant was asked to pro- vide a more detailed topographic map. Precisely what he was asked to do was provide a topographic map with one foot contour lihes by the Trustees and it was stated that he did not provide. Well, the record indiGates that he did provide it and I don't have a print of it but I do have a photocopy of it and a letter of transmittal from the Trustees oWn records directed by ~. ~ ~ to Henry Smith and then present of the Trustees dated July 10, 1986 with that topo and I'd like to give that to you~· Now, the next thing... ~ ~with me a second. All tl%e letters that were.all that ~was 'Page 14 - Thursday, March 17, 1988 Public Hearing -Jon C. Krebs Southold Town Z.B.A. MR. ANGEL (continued): litigated before the Trustees includinq this question raised by both of the witnesses and Ms. ~]azeh¥°bkregarding the dominance of the groundsel bush was as she asserts, directed to the D.E.C. in a letter from then Trustee, Larsen. Well, the D.E.C. responded specifically and reflected that they made an additional field check at the.~time in response to her letter. And nevertheless, maintained their position that the building area was more than 75 feet from the wetlands. And I have a letter dated July 1, 1986 from Charles D. Hamilton of the~D.E.C, to Ellen karsen and the Southold~Town ~ B&ymen's association and another individual specifically respondJngto her letter and specifically stating that the concerns addressed in her letter did not alter the D.E.C.'s position regarding distance from wetlands. I'd like to give that to you also. Finally, I'd just like to focus your attention on the task before you. The Trustees have actively aired this issue. They have actively aired whether or not a house should be built on this property and concluded as is their position in this town that the house should be built here. The.~D.E.C., which.to some extent, has overlapping jurisdiction with the Trustees and I'm not too sure it's a fair thing to say buts has a..~.lot of people with a lot of de- grees doing this sort of thing. They were also investigating and came out with a conclusion that's on all fours with the position that the applicant has taken. The Suffolk County Health Department that has jurisdiction over issues of septic waste, also reviewed the project and issued a permit permitting the project to go ahead. I respectfully submit that under the record before you, you really should find that the project is going to be, or at least the construction of the project is going to be more than 75 feet from the wetland. Finally, since the p rview of your review is limited to the question of setback, I believe that under the State Environmental Quality Review Act, a setback, I don't have the regulations with me, I brought the volume with. the wetlands regulations, not with the SEQRA regulations. But certainly, this is a project, at least an action that is before your Board that is either a Type II Action that does not require an environmental review or an Unlisted Action that certainly does not require you, a Board that only deals in the setback question, to require a full environmental impact statement or some difficult environmental re- view after the environmental agencies have already complied with SEQRA and are satisfied that this is a proper location. Thank you. CHAIRMAN GOEHRINGER: Larsen? Thank you. Ms. GlaZebr00k-nothing. 'MRS. MR$~LARSEN: Thank you gerry. Regardihg the topo. looked at the topo, he would see that it was based on mean sea level right from the beginning. The town, our code and the D.E.C. requirements for a topo states that it has to be based on U.S. geographical data which gives you an accurate topo. That is not an accurate topo. That was brought to the attention of Mr. VanTuyl and the applicant, at least by me at the time. It may not be on the record but it is an inaccurate topo. It doesn't conform to what our code asks for. The D.E.C. originally reviewed their per- Page 15 - Thursday, March 17, 1988 Public Hearing -Jon C. Kerbs Southo!d Town Z.B.A. MR$~LARSEN (continued): mit when I called. I wrote the letter to the D.E.C. and the~.is- sued the permit. So they were crossed in the mail. They got the letter. I saw the permit copy in the box of the Trustee Office. They followed up and made field inspections. But initially, when they looked at their application, they told me it was administra- tive review. At the time the office was very busy. As everyone knows, there was a shortage in the D.E.C. People were waiting a year for bulkhead permits and catwalk permits and they were just taking information that was presented to them on a piece of paper and making a determination to get the permits out because they were under so much political pressure from shortages in manpower at the time. What I am saying is that this property has never been accurately reviewed for either impacts from sewage, impacts from flooding or the fact that it's only 7 feet, that it is a tidal wetland. And that if it was within our code to deny the permit to begin with. We would not have taken the person's right away from use of the property. They could have put a catwalk on it. They could have put a mooring over the wetlands, whatever. But it is not a suitable environment-for a house. If there is a flood, that septic is going to go and it's going to go into Hal- lock's Bay. So my feeling is; this piece of property isn't safe. What could possibly be safe and it's up to the people in the of- fice to hold up what the code stands for. And I felt in this par- ticular case that the code would have been w~thhe]d. Thank yo'u. CHAIRMAN GOEHRINGER: Mr. Bredemeyer. MR. BREDEMEYER: Yes. Good evening. I didn't come here prepared to speak to this issue. If I had, I would have brought the record of the Trustees. I'd like to say that I've just heard a lot of a~saM which was not substantiated by fact on the reco~d. And nat if Mrs. Larsen had identified herself as being in the minority when a majority position came out of the Trustees. As this is a matter under litigation, I don't expect to comment .on it at all except for those simple facts. Thank you. MR. LA/SON: I just want to point out that we proved by our transit siting that there was a lot of question on actual contour of this property and a lot of questions as to why, raised, as to why 'we thought there were wetlands. One of_the last pieces of writing before Jon Kerbs ever got involved in this and the case was rested, was in October. I don't remember specifically. But in October of '86, it's in the Trustee record, and it was Mr. K0ke writilng a letter to Mr. Smith, the .Trustees, stating that Mr. Smith had just written a letter asking once more for an accurate contour map. You leave that down to one foot indicated high tide ver- sus all this stuff down to Jersey. And A1 wrote back and said that at this time, they weren't going to submit anything because they were just going to stop everything at that point in time. Interestingly enough, apparantly a month later, 1,500 yards of fill was requested by Mr. Haggie at the D.E.C. on this property ,, which shows you that while everybody else thought, we get a rest. They were busy working. And now it's been up to 250. What we actually consider happening is, once more, the filling of wet- lands and we really hope that filling the wetlands had stopped ~ Page 16 - Thursday, MarCh 17, 1988 Public Hearing -Jon C. Kerbs Southold Town Z.B.A. MR. LATSON (continued): a long time ago. And I think this proves the inaccuracy of Suf- folk County Health Department in their ability. They are total- ly afraid to say no to anybody. They are afraid they are going to get sued and they absolutely, the water is non-potable. I read that. And then here they are okaying a well where the wat- er is no good. They're okaying a septic system where it's pro- bably five inches above sea level, floods regularly every year and they're okaying all this stuff. A lot of problems and it's up to groups like you to start telling these people to stop. Enough is enough. If people don't start saying stop enough i.s enough, it will never stop. And eventually, we're going to find that we've ruined everything. And it really is time. It's time for a new revolution. The idea of public land is gone. Public ]and is almost gone because there is no public land. Private land is getting consumed by the wealthy and the average person is get- ting shut out as we all know with this issue in Southold Town. right now about affordable housing. We really have a lot of is- sues we have to start covering. I'm head of the waterfront re- vitalization program and these are all the issues we are trying to cover while we do our program and these are really major is- sues. We need agencies to start telling people enough is enough. We really have got to look to the future. We got to look fifty years ahead, we got to look for our kids. We have got to dc, something different. It's not 1776 anymore where'the sky is the limit and there's nothing anywhere. Thank you very much. MR. ANGEL : Mr. Chairman, just one thing. Not in the nature of rebutt&l, just clarification. There's been some talk about a 250 cubic yard fill permitted by the D.E.C. and a 100 cubic yard fill permission issued by the Trustees. I don't want to leave you with the impression that if you granted approval., that we feel that we can put 250 cubic yards of fill on there. We are bound, even if we get an approval from this Board, to abide by the determination of the Trustees. Should we think it's buildable under those circumstance~ should we feel that additional fill is required, we would have to go back to the Trustees as somebody pointed out. We're seeking, even though notwithstanding our position about jurisdiction, that isn't approval. That's something we've got to live with. CHAIRMAN GOEHRINGER: Thank you. In a simitiar hearing of this particular nature, not probably close to that but I'm not tell- ing you I'm getting it out of the air. I'm going to ask that the hearing be recessed to the next regularly scheduled meeting. Not for the purpose of verbal or oral testimony but for the pur-. pose of investigation on our part. And so we will close this hearing on April 14th. 'If we find anything is germane to the case that we have not heard, I will place it in the record and we'll coordinate with both attorneys at that particular time. Basically it's a time where again, we're going to go out and ~age 17 - Thursday, March 17~ 1988 Public Hearing - Jon C. Kerbs Southold Town Z.B.A. CHAIRMAN GOEHRINGER(continued): do some more field inspections and we'~e going to look at the situation as it stands. And as I said, we will close it. It will be a matter, as some of you have seen tonight, we closed the Zahra hearing and there was some information placed in the record. Both attorneys were contacted and we did coordinate with them. In this particular case, based upon the field in- spection, it's the only way that we can really deal with the issue. And other discussions that we might have basically among ourselves based upon that particular field inspection. And I thank you all for coming in. And I'll make a motion recessing this hearing. ELkEN LARS[N: If I could just say one more thing. I appre- ciate your tolerance and your graciousness at this point and I certainly don't envy your position. But if you have decided to postpone this decision, I would just like to point out that last night and tonight are the highest tides of the year. They won't be associated with any winds or any storms just completely high tides. So if the Board is going to recess and table it, maybe at some time during the high tide tomorrow, you could, if your schedule will allow it, look at this particular parcel of property. CHAIRMAN GOEHRINGER: Thank you. Again, thank you. Making a motion recessing the hearing to the next regularly scheduled meeting with no oral testimony. Ail in favor - AYE. TRANSCRIPT OF HEARING SOUTHOLD TOWN BOARD OF APPEALS REGULAR MEETING OF THURSDAY, MARCH 17,!.1988 Appl. No. 3710 Applicant(s): THE COVE AT SOUTHOLD Location of Property: South Side of Main Bayview Rd., Southold County Tax Map ID No.: 1000- 87 - 5 - 20 Board Members Present: Chairman Gerard P. Goehringer, Members: Grigonis, Doyen, Douglass (Mr.Sawicki was absent.) Also Present Were: Victor Lessard (BUilding Department), Linda Kowalski, Z.B.A. Secretary and approximately 75 persons in the audience. The Chairman opened the hearing at 10:17 o'clock p.m. and read the notice of hearing and application for the record. CHAIRMAN GOEHRINGER: I have a copy of a survey dated the first day of September, by the applicant or an agent for the applicant and we have a site plan, the most recent date; January 18, 1988 prepared by Howard Young, Surveyor indicating the entire parcel and telling they exist at this particular time in reference to setbacks. And I have a copy of the Suffolk County Tax Map in- dicating this and surrounding properties in the area. As for the nature of the caveat before this hearing, it's similiar to a caveat that I dealt with before. The only difference basically is that we have more property. One thing I should b~ar in mind, it is my contention and I'm restating this because things change very quickly in these applications and sometimes I don't aprise myself of them and that's because I don't come down every night and look at the application, that I believe that basically the problem that we have here are four(buildings) that are not under construction. They are the four(buildings) to the most westerly side of the property. I think they're units 17, 18, 19 and 20. And at this particular time, when discussing this with the newspapers, I said that the edge of these proposed buildings lie approximately 91 feet. /hey used the figure of 94 but I see here it's 911~rom the tidal wetlands line. Again, the most southerly buildings in any case. I'm sorry,] the most westerly buildings in any case. And the, we are ying at this particular time, approximately 91 feet from the New York State Tidal Wetlands Line. And again, a valuation of jurisdiction in this particular case. Who would like to be heard? Mr. Klaskey. How are you? ,~,Page 2 - Thursday, March 17, 1988 'Public Hearing - The Cove at Southold Southold Town Z.B.A. MR. KLASKEY: My name is Wilbur Klaskey. I'm the Vice President of Leemark Associates as well as The Cove at Southold, Inc. And if I could take the liberty of not using this and going to a few Boards for some help in explaining the particular program. Be- fore I get into that, I'd like to, as nicely as possible, take some exception about being included as a similar program to the Kerbs application that was heard and of which there was much dis- cussion. The reason I would take some exception to that, is that I think we're dealing with a totally different kind of a program concerning the spirit of the law, in that this ~$ a program that was a highly mitigated program as developed in an application be- fore the Trustees I got added the full support of the C.A.C that no building ~elow an 11 foot elevation based on the U.S.G.A. standard. And I think I'll be able to demonstrate this evening that the program, if anything, puts a protective envelope around the wetlands that was not there previously and will be there in perpetuity based on the set of covenants and restrictions that were established by the applicant and the Board of Trustees in cooperation of one another. So I think that this application does in fact, take on a wholly different light and a spirit and I'd like to proceed from that bas~$. CHAIRMAN GOEHRINGER: Your statements are duly noted and I was referring mainly to the situation of 119 2B as what is the area that we were discussing. MR. KLASKEY: Occasionally you walk on the same side of the street with some people, you might get identified~ with ~hem and tablish the d~ffe~ence The program had been described at about 8.75 acres. It lies on the north from Main Bayview Road facing on the south by C0rey Creek. I'll speak louder then because I have difficulty using this. The pro~ram is bordered by two official identification marks. And that is Main Bayview on the south and, I mean on the north, ~ey Creek on the south. It's basically be- cause of C0re~- Creek that the issue of tidal wetlands becomes an issue of discussion. The program as identified earlier, is on 8.75 acres. It is within an "M" zone. And the density and yield is consistent with the present zone or within that area. What I've shown on the first map for the Board is basically a map a little bit different than the one that's shown that you have. I have a second map which reflects that. But it's to demonstrate something that's a little bit different than what we would be required for the application itself. The reason I'm using this, it seems to me that there are basically two courses of action that are available to the Board. The first course of action, is an action of non-jurisdiction. And the basis of non-jurisdiction would be from, as I define it in 119 2B would be the basis for the o~dinary high water mark or the 75 feet landward of the tidal wetlands. Just for the sake of this particular discussion and also for your consideration, I have assumed tidal wetlands fc~r the first part of my discussion, as the New York State Environ- mental Control Line established some time in '85, re~ established again in October 22nd by another field investigation by and reaffirmed at that point. The blue line over here, the ~and- -~age 3 - Thursday, March 17, 1988 Publ'ic Hearin~- The Cove at Southold So~thold Town Z.B.A. MR. KLASKEY (continued): ward edge of that is the definition in actuality of the D.E.C. tidal wetlands line. And in addition and coincidentally, falls very close to, I think, the definition within 119 2B as to the high water mark, the ordinary high water mark as defined within the ordinance and specifically within the Board of Appeals sec- tion of the ordinance. I think that is a logical approach to define this but that certainly is a decision for the Board. The second approach which I think the Board has within its jurisdic- tion and purview is the granting of an area variance as I call it rather than a variance in the more judicial terms, secured from a typical zoning board of appeals application. In with that, I'd like to turn back to basically the map which the Board has in front of it. It's the identical map except what I have done is I have colored this map up so that it pictor'ia]]y clearly defines I think, what the issues are and what actions have been taken historically to identify this program and put in a wholly different category. And I'll just spend a little bit of history on that which I'll reaffirm on some other points as I go through this. But this particular program, historically, was reviewed and approved for preliminary site plan approval by the Town of Southold Planning Board in the latter part of probably 1984. This program was given a non-jurisdictional status by D.E.C. during the same period and D.E.C. has reaffirmed that position relative- ly recently. At that junction in time, one must understand that the Board of Trustees did not have jurisdiction concerning tidal wetland matters in this area and that's one of the reason, unfor- tunately, that the Board of Trustees were not actually made a part of a comprehensive SEQRA review process. The Board of Trustee~and we really have no dispute about this-- It became a jurisdictional influence within this area and in fact made their presence felt in September of 1987. They appeared on the site. We've dealt with the Board of Trustees from that point on. The Board of Trustees did in fact take a totally different position, one much more conservative than the New York State Department of Environ- mental Control. And again, we do not dispute that. We simply adopted that line. Just for your background and maybe a member of the Trustees will respond to this, but it was my sense during this discussion that the Trustees assumed this position in order to achieve jurisdiction in order to put this within a protective environmental envelope. I also would like to alert the Board as well as the audience that the previous use which was also com- mitted was for 33 motel units built some years ago with a tra- ditional raw septic system servicing those 33 units and that particular system lying well within the critical area of what is defined as tidal wetlands. Probably by both D.EoC. as well as the Board of Trustees. I bring this out because later on, I want to indicate to you that from a purely environmental stand- point, this program does put in a protective envelope for per- petuity concerns about the relationship of this development to wetlands and to Cory Creek. I also would like to establish for the record that this particular program has already received two separate distinct negative declarations. The first by the Town of Southold Planning Board. The second, a conditional negative declaration based on our comprehensive set of mitiga- ~Page 4 - Thursday, March 17, 1988 'Public Hearing - The Cove at Southold Southold Town Z,B.A. MR. KAASKEY (continued): tion measures by the Board of Trustees as late as December the 16th when that.was actually issued. I would also like to state that again, as opposed to the previous applicant, this appli- cant has worked 3n a harmonious sense with both Board of Trus- tess as well as the C.A.C. in devising a mitigation plan. And in some cases, we, the applicant, have made suggestions that within the mitigation program, that it further helped, I think, on a total mitigation baSis. And if anything, I feel very proud to say that I think this could be a of the type of miti- gation studies that should be done concerning programs relating to bodies of water and tidal wetlands. Well, I feel very good about that and maybe the Trustees want to comment on that. And because environment, even though it may not be your total purview, it certainly is a factor in considering this application. If in fact, the Board does decide to take this under its jurisdiction, there is certain points that have to be established for the reco~d. One is and we've heard it this evening, the hearing of practical difficulty because that is what in fact, is felt by this program if this were denied. The practical difficulties concern that as a an owner of a piece of property, we have made due diligence in developing this consistent with the Town of Brookhaven zoning code. An~ action this evening .... Southold, sorry. T~he ap~~- plicant j$ working within an "M" zone and just for the history and record, again, there was 33 motel units in here which were again, environmentally unset and we're not asking.for any in- crease in yield, any increase in density. What we simply did and secured was site plan approval for what was permitted on the property itself. So there would be very practical difficulties in that, we would not be able to develop, this within the yield or density that is permitted to us as part of our rights. Now, there is in this case, as opposed to a range of other things you have probably heard this evening, the range of mitigation measures developed by the Board of Trustees as well as the ap- plicant; that I would suggest to you is probably the high water mark in mitigation measures concerning any development that probably Southold has actually seen. Let me turn this over a bit. It might be a little clearer at this point and time to the Board. What we did basically was create two zones within this program. One delineated in the dark green which is the Cory Creek side of this and delineated by a wetlands line deter- mined by the Board of Trustees. The second, we put in a second zone which extends beyond the 75 foot beyond the actual line it- self. We did this for two basic reasons. The Board of Trustees were asking that different mitigation measures apply to different zones. In both zones as an example, there is no fertilizer to be used in either one of these zones which was a prime require- ment by the Board of Trustees in relation to its effect upon Cory Creek. Second of all, buildings were in fact moved further away from the wetlands line. Again, at the request of the Board of Trustees-. Still of course, within the closest one is probably 18 foot from the actual delineation of that line and w£thin the 75 foot buffer. Again, further mitigation measures; all utilities ~Page 5 - Thursday, March 17, 1988 ~ 'Pub!ic Hearing - The Cove at Southold Southo!d TQ~n. Z,B~A. MR. KLASKEY (continued): primarily of the water lines were pulled back and away from the wetlands line. So there was no construction activity taking place within the defined area in the dark green. In going much further in that getting more involved in whole environmental is- sues, that within the both the dark green and the lighter green area there is a range of restrictions as to what kind of plant- ing fields could in fact, be utilized within those areas. We defined a list of materials. Those kinds of materials are non- competitive with what is reportedly a wetlands area. So that there was no conflict with any of the materials put in place as opposed to the materials that are there today. We went a step further than that and I think this one actually came from the applicant rather than the Trustees but it's included in mitiga- tion measures. All of the units, not only the units that were sited as ~fected as being close to the wetlands, but all the units closer to the Cory Creek and the body of water.~ All were changed architecturally to prevent 9ny access from the rear ~o these units into the wetlands. So all access from the unit it- self from the rear of these units were graded off basically so that there's no... One can not walk from one's patio or deck onto the wetlands. Those are the kinds of series of mitigation measures plus a rather extensive planning list, that was done in order to create a protective envelope in perpetuity. Now, one other thing whiCh extends beyond, incidentally, areas of jurisdiction by the Board of Trustees is that we in ~act, agreed to establish a different whole fertilization program for that area beyond the Board of Trustees influence. ~n essence ~the-~B0ard of Trustees~ we could have said no to that because they have no jurisdiction. We went further and said yes to a restricted fertilization program within this area in light. We said that fertilization only happens twice a year and we agreed to a spe- cific type of fertilization; a slow release program which would not have an effect upon the environment. In addition to that fr~m an environmental point of view, having nothing to do with mitigation measures, is that this program is serviced by really a state of the art sewer and sanitary system. This building is served by a denitroficatlon system away from and out of an~ of the jurisdiction but consistent with the most modern techniques of dealing with sanitary wastes. There was some comment, I think in a local newspaper that labelled an area of this as septic tank. What this is basically is a low point of site where effluent for any given unit, in fact, stays in here and is pumped out immedi- ately back up to a denitrofication program up in this area over here. Continuing on again, in talking about that, that was the mitigation program. I think it should be highlighted. Is that we have established, I think, that this should not be considered a substantial variance. And the reason this is not a substan- tial variance doesn't relate to arithematic measurements, it relates to the mitigation program as to its effect upon the en- vironment and upon the wetlands area. Also, I think in rela- tion to that discussion, you have to sort of also understand that there have been negative declarations by two other town agencies in the past. There also has been the D.E.C. involve- ment which established wetlands, with established permit pro- cess for this particular program. The second item that I think .~Page 6 - Thursday, March 17, 1988 Public Hearing - The Cove at Southold Southold Town Z.B.A. MR. KLASKEY (continued): we have to discuss in context with the Board of Trustees is; that there hasn't been a change in the character of the area from land use point of view or from a development point of view. Normally, when you respond to this before a Board of Appeals, you're talk- ing about a future development which we've already heard in some cases. But in this case, you have two yardsticks to go that there hasn't been a change. The first yardstick and the most obvious one is that; we did have 33 motel units here which is consistent with the current zoning as it effects this application. We again, are going on the basis of 33 units. There is no change in the character of the area. ~e're not asking for anything to increase the yield or density. MR. : No way. You dumped all that soil next to my house all the way up to the bank. CHAIRMAN GOEHRINGER: Please. Excuse me sir. You'll be given a chance. MR. KLASKEY: And it's consistent with the zoning. Now, one of the other yardsticks I would like to use in this is that are there alternative plans? The answer is a basically resounding, no. There aren't any alternative plans because we have met the spirit of this. And the only. way that this could be developed consistent with the basic underlined ordinance is to develop 33 units as shown. We've made our adjustments with the Board of Trustees to make this more harmonious for environmental consideration. The other area and the other yardstick that I think we should mention again, is whether or not there's significant economic injury to the appli- cant. Clearly, we would suffer great economic loss within this program well in excess of a million dollars if he were not able to develop this consistent with the underlying ordinance tha~ permitted us to do this 33 units. I think after a lot of discus- sion, that the real question is; has the interest of justice been served. What is the underlying bottom line result of this program? I would purport to tell you that again, justice has been more than served with this program especially with the input of the Board of Trustees and the rather extensive and comprehensive mitigation mea- sures. In that again, I'll use the phrase again, there has been a protective envelope established around what is considered cherished area of wetlands and we consider them cherished also. And from that point of view, I think in asking the question as to whether justice has been served, clearly has in that the net bottom line effect is that we're ending up with a program that is much. more environmentally secure than what had been there historically and certainly one of the better programs that will protect the en- vironment in the future in perpetuity. In whether we have met this There have been other agencies given negative declarations on this matter. One other criteria I think we also should establish and that is whether or not there is any impact on any governmental facilities. Again, there is no impact on any ?age 7 - Thursday, March 17, 1988 Public Hearing - The Cove at Southold Southold Town Z.B.A. MR. KLASKEY (continued): governmental facilities and none wfthin this area. I think that just for the record again, I'll have to comment. I think that there are a number in the audience who certainly have the ability and should participate within this hearing. But I hear, based on some erroneously material pub- lished a week ago in a local newspaper, that particular news- paper did come out with an article in today's paper basically retracting almost 90% of all the comments and said they relooked at the code and now have sensed that this is the program, I think, can be judged as a good program environmentally. I would then rest and respond to any questions that you may have or if you want me to respond to anything. Thank you. CHAIRMAN GOEHRINGER: I just want to establish two things, Mr. Klaskey. We g:ot here tonight based upon the moving of a line. And I assume that line is the line between the light green and the dark green. MR. KLASKEY: That's the Board of Trustees' line. just colored that making it more significant. Correct. CHAIRMAN GOEHRINGER: I just wanted to bring that out because there appears to be some sort of misconception in that particular area. We'll go on to the remaining part of the hearing. Thank' you. Is there anybody who would like to speak in favor of this application? Yes. MRS. LARSEN: As far as what Mr. Klaskey was saying in reference to good comparison made between the previous application and this application; E was referring to section 119~2 and there is no com- parison between the two. First of all, this is above the tidal floodplain. Second of all, it was a predetermined use with an "M-i" zone. There were no additional lot yields added. It had a negative declaration from the Planning Board. It had, my compari- son was that the D.E.C. line was just ..... We did not go by the D.E.C. line. ~ We pulled the D.E.C. line landward. What we achieved was that we looked at the parcel. It came out that they started excavating down on the site and all the Trustees went down and looked at it and we looked at the maps and we saw where the D.E.C. wetland line was and we saw that this was not near the tidal area and that it was a raised ~area and a fill area and yet it was supporting spartina grasses. We went and met with vari- ous departments including the Building Department, people from the D.E.C., representatives from the Board of Trustees and repre- sentatives from the company. And it was agreed upon by everyone that the line would be pulled landward. What we were able to accomplish by pulling the line landward was having the developer put the parcels that were seaward of the building envelopes in perpetual convenants and restrictions. Meaning, that those grasses and that upland portion that is not inter-t~da] & that spot will never be touched and never be disturbed. Had we not pulled our line forward, it would have been non-jurisdictional. They cooperated to a full extent. We asked for non-fertilizer appli- cation and ingenous species to be planted around the bushes. Page 8 - Thursday, March 17, 1988 Public Hearing - The Cove at Southold Southold Town Z.B.A. MRS. LARSEN (continued): They met with me, I remember, one morning at 7:30 or 8:30 in the morning and we came down and we talked about a memo that I had sent. There is no danger of salt water~.~intrusion on this par- ticular site. Not on this site from the well system. The s~p- tic system and leeching field is upland 300 feet from any wet- lands. So there's not going to be any contaminants there. There is adequate drainage on the whole property that will absorb any runoff before it hits the wetlands and the buffer will be left there. We spoke with members of the C.A.C. who are preparing a booklet that says, that specifically deals with people who are on waterfront property. They've agreed to put that in their in- formation that they distribute to any potential customer. It was an existing pre-use. I felt that, myself, I didn't vote on it. I wasn't at the Board. But that they really went quite far in doing everything that they could to environmentally mitigate it. And it has to be remembered that the Trustees did not have jurisdiction at the time of the approval. That we came in after all prior approvals were granted and moved their line. A~d as a result .... Another thing that they also did that they didn't men- tion. There was a pool approved, if anyone is familiar with the area, along the bulkhead. I felt, other Trustee members felt, aesthetically, the pool wasn't the greatest place plus the impacts from the water Should they .... And they withdrew the pool portion of it. I came away feeling that we had achieved something at that point. Thank you. CHAIRMAN GOEHRINGER: Thank you. Mr. Klaskey. MR. KLASKEY: I'd like to thank Ellen for her comments but one thing, we did withdraw the pool even though we had some qua]ms about it in that it was behind a man-made bulkhead. And tra- ditionally, it woUld not be considered within a wetland area. I don't want to leave anyone with the impression that we've withdrawn the pool. The pool was not within the jurisdiction of~_any of the agencies. The pool has been relocated and that's shown on this particular map and it's not part of this applica- tion. But it's in this section here and it's labelled future pool. This particular location has been approved by D.E.C. as the location for a pool and an actual tennis court in this area. CHAIRMAN GOEHRINGER: Thank yQu sir. Is there anybody who would like to speak against the application? And I ask if there are any spokespersons for groups, if those particular people will come forward. RONNI[W.ACHER : I'm it. My nlame is Ronnie Wacher and I~m representing the Northfork Environmental Council and I thank you for the: opportunity. I think that we all remember the case of Patty Hearst some years ago. The Heiress, who after being kidnapped, fell into the spell of her kidnappers and and went on to rob a bank with them. I'm afraid that's what is happening here. The Trustees have been working with the developers of The ..Page 9 - Thursday, March 17, 1988 Public Hearing - The Cove at Southold Southold Town Z.B.A. MRS. WACHER (continued): Cove at Southold for so long that they've begun to identify with them. Why else would they have set a wetland line and then grant it permission to build 12 condominium units within the line that they set. It states that the developer agreed to certain restric- tions which they said would mitigate the damage of building in a fragile area,~ould inevitably create. Among these mitigating measures are~ promise to use no fertilizers on the lower portions of the property. So it would have no impact on the water. But to use fertilizers only twice a year in the other less endangered areas and to agree that owners would.l.leash their dogs and cats and use pooper scoopers to dispose of feces that would otherwise find their way into the creek. Pooper scoopers indeed, to me, is a proposterous notion. And who will watch to see that Fito does not run out unattended or that his additions to the ferti- lization are wisked out of sight. Who will check to see that the agreed upon use of fertilize~ is carried out in years to come? Why do they need cultivated grass in a marshland anyway? The Trustees made a wetland line within which building was not to take place. This was a more astringent line than that placed by the D.E.C. and that's laud ablel But if they are going to ma]ce a stricter line, then why do they then say to the developer, that that's okay. You can build there anyway. If they set a line, let them stick to it. We can sympathize with the developer who seems to want to cooperate with the requests made of him. The trouble is that so few requests have been made. As we un- derstand it, the developer has placed the buildings 90 feet so that it's some 15 feet beyond what is required, behind the D.E.C. line. Then the Trustees, when they were given their new responsi- bility over wetlands, brought the line farther back than the D.E~C. But they pay no attention to that. This is one of those cases that Ellen Larsen said recently fell between the cracks. That this does not excuse the Trustees for giving away a creek that's still are the best shellfishing waters in the town. The Trustees are our first line of defense. If we can't rely upon them to uphold their line, then where can we look for protection for the wetlands? In thiS case, we are asking you, the Zoning Board of Appeals, to correct their mistake. Otherwise, other developers are going to want the same privilege. This will set a precedent. So I ask you, please deny the variance. Thank you. CHAIRMAN GOEHRINGER: Thank you. Is there anybody else who would like to speak? Yes sir. You have to state your name sir. ~R. (Ted) GUN$[kMAN : This gentleman speaks very well about the environment and so forth. Maybe what I have to say has very lit- tle to do with this project but he apparant~~ doesn't even know' he's in the Town of Southold. Secondly, he defaces our .... This sign cove, cove, cove all the way to the telephones. I would like to ask him who gave him permission to put his sign saying cove, on the telephone poles? ..page 10 - Thursday, March 17, 1988 Publ'ic Hearing - The Cove at Southold Southo!d Town Z.B.A. CHAIRMAN GOEHRINGER: Mr. Gunse]man~ I thank you for your com- ments but the sign issue is really an issue of enforcement. MR. GUNTZLEMAN: Well, I .... It's disregard for our town. CHAIRMAN GOEHRINGER: I understand. Thank you. to use the ~ike and state your name. Sir, you have BUD YOUNG: I'd like to ask a few questions if I could. I'm very curious about the cesspool system. He says he has tanks down here and they're supposed to hold sewage and so forth and then immedi- ately rush it back up here. Now, as far as I'm concerned, the ? water line is much closer in here. I just can't believe he can even have tanks here for sewage storage and immediately rush it back here. This is low area in here. I live right next door. This is all low area. When there is storms and stuff, it goes much higher. Especially over here. And you have put soil and stuff all the way up here. I don't know who gave you permission for that. Tons of it. Right? And as far as I'm concerned, your building right up there. CHAIRMAN GOEHRINGER: Would you like to answer that Mr. Klaskey? MR. KLASKEY: I don't know what answer but I do~t have my wife with me so it's tough to respond. First of all, the question of the septic; these are 8 inch re-enforced enclosed concrete cylin- ders in this area here. This does in fact, the low point of the site. Keep in mind that the elevation of every unit is at least or if not, higher, of the 11 foot elevation. This is not a stor- age area. This .... All units that flow into here would be ef- fluent and immediately gets pumped up to the denitrofication pro- gram up here which is a relatively new state of the art that"s been accepted by Suffolk County Department Health Services and has been approved on that basis. So being at elevation 11 and thereabouts, we are more than above any type of a critical salt water intrusion. CHAIRMAN GOEHRINGER: Can I just ask you a question at that point? I think there's maybe .... I can clear it up. These ~ are very simply holding tanks. The~e is no leeching from these tanks. Is that correct? MR. KLASKEY: Correct. These are 8 inch re-enforced holding tanks. They don't even hold material. It comes down to a low point and immediately gets pumped up to the actual denitrofication up here. So it's not a septic in relation to the previous application where you have the septic tank that bleeds, in fac%, to the salt water marsh. I'd also like to comment that it's not a septic system. This particular program is well out of any type of environmentai~.-- area plus is beyond the 300 foot defin~0'n ~fwhat's in the juris- diction of the Department of Environmental Control. I think it should be pointed out also as a statement was made which I think is incorrect, that we are not building in the wetlands. The ap- plication before you is to build within the 75 foot buffer. Again, I think we've established such a rather in depth range of mitiga- tion measures that every one who is concerned about tidal wetlands, ' Page 11 - Thursday, Ma~ch''17, 1988 Public Hearing - The.Cove at Southold Southold Town Z.B.A. MR. KLASKEY (continued): should realize that we're better off after this program is com- pleted than what was there historically before. CHAIRMAN GOEHRINGER: In reference to the question of filling. You are basically, regrading the area in the light green. Is that correct? I mean, there are filling techniques being done in that area? MR. KLASKEY: Let me just explain it to you. There has been a permit granted by the New York State Department of Environment Control. A permit granted which permits us to, in fact, bring fill into this site. Not the wetlands but in the site, for road grading and for filling in of units that we have some prob- lems. For example one area of fill, is that within this unit over here, this area in here was, in fact, where the old septic system was which was bleeding right directly into the pond or into the~iCory Creek in the Town of Southold. And when that was uncovered, that had to be filled in. That was something of the fill. Not in the wetlands, but in this area over here. Of the 9,500 yards, cubic yards of fill hauled in to date on this site, the only ones that fall within the dimension of the permit pro- cess is only about 2,000 yards uut within this area over here. Again, I must emphasize there haS been no fill in any wetlands. None whatsoever. That was, I think, a bit of a misinterpreta= tion of a newspaper article which did not define what the fill was being used for. So to date, the effected area over here which the ~D.E.C. has already granted a permit for to bring in as much as 9,700 cubic yards of fill, only about 2,000 yards have been put in this area. The remainder of that fill we're talking about that has come on the site for trip tickets and so on, has been for the actual building and foundation and layers of the denitrofication system which does require that fill ma- terial. So nothing has gone into the wetland area. MR. PA/ k0NS : I' think and I don't have the actual course. Do you know actually .... CHAIRMAN GOEHRINGER: We need your name for the record sir. MR. K[ATSKY: I think you're probably talking about four feet. MR. LONG: I live directly across the creek. The second question. You say that as soon as a level within these tanks reaches a certain height, it is automatically pumped up. Do you have your own source of power for this development? MR. KLASKEY: Yes. MR. LONG: You have your generators and in effect, you have your own power plants? MR. KLASKEY: No. ?Page 12 - Thursday, March 17, 1988 ' Public Hearing - The Cove at Southold Southold Town Z.B.A. MR. LONG: No, you don't. Ok. What happens .... CHAIRMAN GOEHRINGER: Pat, you can not ask him specific questions. You've got to ask the questions to the Board. So please. MR. LONG: So in the event of a power failure of which there are many in this area, how are the holding tanks pumped if he does not have his own separate power plant which is the only way you have a continual source of power where we live? MR. KLASKEY: There's an automatic alarm and dial system which will~.be installed when that is actually installed. And if there is a power outage, the plumber is put on notice that he must be out there with an electric power generator out there. That's an acceptable approach and one that has been accepted by the Suffolk County Department of Public Health Services. Because this issue as to what happens when there is a power outage, is an issue that comes up with any type of a pumping system that's critical to the process of the effluent. CHAIRMAN GOEHRINGER: Thank you. Ladies, before you sir. MRS. FLETCHER: My name is Linda Fletcher and I live in New Suf- folk and I'd just like to ask a question that maybe you could, in the process, ask back. It has been my experience that when the condominium projects are built, the builder or the developer or both leave after they're sold. And the management of all these promises is turned over to I donWt know who. So could you ask them, are they planning to fulfill these promises by managing the project or after its completion and after all the units have been sold. CHAIRMAN GOEHRINGER: Can you answer that Mr. Klaskey? MR. KLASKEY: I will answer it but on the preface that it's not really a legitimate consideration for the Board. But I will con- tend the following: first of all, there is a professional mana- ger that is retained. In this case, it's a group called Well Management. They are professionals. This is not a local land- scaper to come out there and cut grass, put fertilizer down as required. This is a professional manager. And the restriction that was established earlier by covenants and restrictions, are filed documents which are part 'of the offer in the plan in which that manager must adhere to. Second of all, no one, is going to say. to you or myself that in fact, it may not be a mistake some time in the future for all human beings. I would contend though, that there's more of a chance as myself, or you, living in .a single family house have more of an opportunity to violate a covenant and restriction than a homeowner's association does. The point is that we have a Board of Managers. We have a pro- fessional management. We've never asked that single family homeowners, do you have a professional manager managing your house, managing your septic system and so on. In this case, we ~.Page 13 - Thursday, March 17, 1988 Public Hearing - The Cove at Southold Southold Town Z.B.A. MR. KLASKEY (continued): do have that. And I think there's a greater lever of protection by having that professionalism built in and paid for by the owners than we do as single family homeowners. CHAIRMAN GOEHRINGER: The gentleman with the blue sweater on. MR. JONES: My name is Robert Jones and I just wanted to comment on the comparisons between the use that existed on the property at an earlier date which was 32 or 33 units and the indication~ here that it's approximately the same. The creation of units would presumably have at least 2 bedrooms, a kitchen a bath, 'would not be equivalent in any respect to the amount of use that was actually, the amount of use that actually existed when they had condominiums there. Motel. CHAIRMAN GOEHRINGER: Thank you sir. Yes ma'am. ^~N55 DICKSN$0N:~ What may not have been considered in granting the permit to build 12 homes on the wetland buffer zone, at The Cove at Sout~old, was the hardship on the residents of Southold Town, in~. particular those who live in the Bayview area. The possible Loss of shellfishing if Cory Creek becomes polluted means a loss of livelihood and pleasure for many people; of strapping water- view ultimately paying for water systems if the initial supply runs dry or salty; adding traffic to an all too busy Bayview Road are only som~!~of the hardships that we may look forward to by in- cluding 33 two-story homes on 8 acres which should support no more than 4 homes. With this in mind and wishing to be reasonable, we propose the following compromise: number one; permit the building of 21 homes on what is unquestionably uplands, less mitigating the hardships just mentioned. Number two, have the management company for The Cove post a 20 year bond to insure that the chemicals and rate of application for the lawn and the use of pooper scoopers both specified by the Board of Trustees, be carried out both ini- tially and well into the future. Number threes specify that any water from the swimming pool either from[drainage or purging, be treated to reduce the high chemical content before being released into the ground water or into Cory Creek. An alternative to this treatment would be to carry this water by tank trunk to be disposed of in a less sensitive area. This proposal does not pretend to do away with all of the problems that this development presents but should be met with favor by environmentally sensitive town's repre- sentatives with the people they represent and with an environmentally sensitive developer. While this development is claimed to be an improvement on the Cove Motel, formally located on this site, any- one truly familiar with the site knows that the motel was relatively unobtrusive because of the low buildings, the beautiful natural lo- cust grove, since bulldozed, and the seasonal two to three months per year nature of the business. The demands on water and waste disposal are only a small fraction of what the demands will be for this new development. Thirty-three two-story homes on eight acres can hardly be considered an improvement. Thank you. Page 14 - Z.B.A. March 17, 1988 Transcript of Public Hearing Matter of THE COVE AT SOUTHOLD CHAIRMAN GOEHRINGER: I would like to say for the record just so the audience is aware of this~ 'that we received this application on the 7th of February,'1988. This Board has not looked at this application under the S.E Q.R A'~ process~ It has not looked at this application before it was received by our Department. There were building permits granted~ There are building Permits still in effect to my knowledge for exactly 29 of these units.!i There is no physical way that these units could be reduced to this number, that this nice lady has spoken to us about. All I can tell you is that we are here under an interpretation. The interpreation is, do we take the New York State Department of. Environmental Conservation, as Mr. Klatsky says, that line, or do we take the line that the Southold Town Trustees have dealt with? $o far as I'm concerned, we're talking mainly the buildings that are basically to the west and to the south, and that's basically what's before us tonight. There are some state- ments here that are well beyond that purview based upon the amount of time that it has taken us to receive this application. And that's all I can tell you at this point~ I'll let Mr. Klatsky respond, and Mr. Bredemeyer, do you want to say something first? (continued on page 15) PaGe 1~ - Thursday, March 17, 1988 Public Hearing - The.. Cove at Southold Southold Town Z~B,A~ JOHN BREDEMEYER, TOWN TRUSTEE MEMBER/PRESIDENT: Not wishing to be considered held captive like Patty Hearst but I have the Trustee file here, a copy, in its entirety and I'm not here in favor or against the application. We voted a permit out on it. It's unfortunate Ms. Larsen takes somewhat a different tact, I think as a public official representing the Trustees and the Trustee members, we don't particularly endorse projects pe~ say but we deal with the facts as we have them, see them and we try to act responsibily. I have all the facts here. I think a lot of the questions are being answered. Your comments to the chair reflecting things the Trustees looked at. An~ I'd be glad to answer questions maybe later on if there's time, if people are so interested. CHAIRMAN GOEHRINGER: Thank you. Mr. Kla~kY- MR. KLATS~: I've been called many things, but never a terrorist. And I don't want to hold anyone captive either. Any attempt to reduce the yield in number of units would be an economic hard- ship and would be unacceptable to the developing group. And more specifically., in doing some calculations on that, there is just about a million six hundred thousand doll.ars of a loss that will be considered if those particular units were in fact, not built. Again, I think there's comment again about th.e status and the nature of a homeowners association. I think that again, I'd like to say, a homeowners association, I think, is probably one of the~?mo~e responsible, based on experience, groups that can actually service even a single family house as well as a mul- ti-family development as is of this nature. I don't think that ~ it's also in the purview of the Board or many Boards to talk about the issue of aesthetics. Although I have some great difficulty in no making a comment that the previous motel... I have difficulty stretching my imagination to call it a delicate kind of a situation. And as I understand that, the summers when the motel was active, was quite a boisterous kind of area. In addition, I'd like to comment to the Board that our experience in basically your second home market, is that these units will be primarily used by those people during the summer months. That has been the experience to date for us in ~he second home market. These units are certainly not a cottage and built on the terms of only. being used for summer use. These are full fledged units mee~ingNew York Build- ing Code criteria with heating and air conditioning and couldL serve someone on a year around basis. But our experience that they. are in fact, not used on that type of a full facility. I would also suggest that I don't think there is any additional traffic that would be generated from these units based on turn over rates and experience with motels. I ~hink, historically, you'll find that motels do have a larger generation of traffic than someone who owns a house within an area and isn't just one family versus num- bers of families changing occupancy rates during course of weeks and months during the summer. Page 16 - Thursday, March 17, 1988 Public Hearing - The Cove at Southold Southold Town Z.B.A. CHAIRMAN GOEHRINGER: Excuse me one second. What I'm basically discussing is possibly recessing the hearing but we're going to go to 11:30. And at that particular time, if there are more com- ments, we're going to be forced to recess. We'll start with this gentleman over here. MR. LONG: I live directly across C0rey Creek from this develop- ment and where the motel had been for many many years, from the time I was a very young boy and we came out here for the summers. And I've heard more noise from the construction at the Cove then I ever heard during the summer from people staying at the motel. I basiCally, have two questions. Number one regards~why after a line was agreed to, did the parties who agreed to it, knowingly just ignore and go ahead not thinking that this would ever come back and blow up in their face which it seems to have now? It doesn't make a lot of sense with an investment of this kind. CHAIRMAN GOEHRINGER: Just let me clarify the water line. line are you.referring to? Which MR. LONG: Well, the line that was established as I understand it tonight, by the Board of Trustees and then was ignored I think was the word I heard used several times. I question that. I question the foresight of a professional organization not to see that this would cause some problems at least for them. The other thing that I heard not only. in this matter, but in the matter before, is the question of economic hardship. Fine. There very well may be eco- nomic hardship. But what of all the other people who live oln Cory Creek? Doesn"t something like this create a chance of economic hardship for us-? Doesn't the fact that now we"re looking at build~. mngs instead of scenery, doesn't that deplete our property walues? Doesn't the fact that there's more traffic on that Creek, deplete our property values? Do we count for nothing? I understand this is a big investment and a lot of time and effort went into it. But there are also a lot of people who have lived there for years and years. And in any of these situations that I've heard, the people who have been there are not counted for anything. An in- dividual or a corporation comes in and says; I or we have this money invested, boom, boom, boom. Everybody else can go take a hike. That's not right. There are other people who have li~ed there for many many years who in their terms, mn terms of their financial situation, have as great an investment in their homes. And certainly their rights and their investment should be treated with equal attention but yet it isn't. I question how this can continually happen. We have another development now in the com- munity I live in, in Laughing Water where the interest of one individual is going %0 t~ke precedent ove~he interests of 80 separate families and that's nonsense. Either something is right or it's wrong. If it's set out that it's wrong, fine. It has to be stopped. It's as easy as that. What the man from the Bayman's Association said earlier is true. If you're going to establish rules, if you are going to establish guidelines, even if you have to do it on an individual basis, you have to uphold those rules and guidelines. That's common sense. But it'~s more than Page 17- Thursday, March 17, 1988 Public Hearing - The Cove at Southold Southold Town Z.B.A. MR. LQNG (continued): common sense, it's right. And that's something we see less and less in the Town of Southold. Things are done not because they are right but because they are convenient. And I would hope, in this case, something is worked out where common sense and a sense of right prevails. MR. BREDEMEYER: I'd just like to explain the wetlands line de- termination process since Mr. Long and I think others have not been given the full opportunity to understand or appreciate what the Trustees went through and to give you our assurances there was no shortcuts. There were no conveniences made here. The Trustees started the process on September 17 with a violation issued by the Town Bay Constable. We immediately got in touch with personnel of the D.E.C. to discuss their wetland line de- termination with them with the result that it was not suffici- ently conservative to meet what our interpretation of Town Code is. And at that meeting, we did not, it was a longer work day and the D.E.C. personnel has been very short staffed and unfor- tunately we couldn't get a forum of Board members present. So the D.E.C. flagged the site with the then president, Henry Smith and reaffirmed their original line determination with an expla- nation of their legal suff4ciency-why they had to stand with that line. Based on information we had was the D.E.C. was taking no jurisdiction whatsoever and that the units we're going to be outside the D.E.C.'s jurisdiction. Therefore, no itigation was possible on this site. The Trustees, viewing this subsequently, on the t7th of October, since the meeting with the D.E.C. was the 16th. On the 17th, the meeting was held where members of the Trustees were present. At that time, three Trustees got to the site at approximately 8 o'clock in the morning. My vehicle had broken down. t~ called ahead to Chairman Smith at the time and told him I'd be late to the site and arrived a little bit later and the Trustees had come to a wetland line determination they felt was much more conservative than the D.E.C. line. And ar- riving late to the site, I was rather surprised because there was three Trustees ready to leave. They were already very well pleased with the iine they had determined. And being fast on the heels of a November election, I must admit I was thoroughly amazed to see a conservative republican and a democrat all agree on one wetlands line in this town. And I said gee; it's time to go and qet some breakfast. And we left. Subsequent to that, Jeff G0uheau wasn't available that week. He was doing inspections on Fisher s Island. He called me up on Sunday and h.e said, d[id you miss that determination. You really blew it. There's a whole big piece of spartana on the wetland down her. e. So sub- sequently, Jeff wrote a letter. We went and through that pro- cess out entirely, we got the C.A.C. involved and we came. up with a line which is so conservative as to even challenge legal sensibility. I think it was .... MR. BUD ¥0UNG : It barely meets the bank. I went down there on the bottom there. It barely meets the bank where you put the line. Page 18 - Thursday, March 17, 1988 ~'Public Hearing - The Cove at Southold Southold Town Z.B.A. MR. BREDEMEYER: No, no. This line that we have here, this is the wetland line. It is fully inclusive of every wetland indi- cator on the property in terms of what we could expect to up- hold in the court of law. We went well above and beyond. Ear- lier there was discussion on .Baccha~$and this site is not particularly 5accharis-rich but there are some.These plants are growing up in Peconlc on the Main Road. Many of the plants on the site in the upper area, were bayberry. They're not even considered wetland indicators. We drew a line that was more conservative than any agency would do in most of Nassau and Suffolk Counties. And it was line that we took because we wanted to include beyond that line mitigation in the adjacent 75 foot zone to the maximum extent possible. Now, had the Trustees merely accepted the D.E.C. line which would have been conveni- ences as would have been suggested, we could have walked away from-a~his project, we took a conservative line which led to a certain inferences, I think, that we wouldn't even be able to uphold it in a court of law. We took an extremely qg~res-sive]ap- proach and one that I don't think we should be ashamed of. And then .... I'm talking to the chair but only directly my voice to you so that you can hear me. And based on that approach, we worked with the applicant not under any spell, mind you. We took out the rulebook, the recommendations of the 208 study of the Long Island Regional Planning Board. We created a buffer zone which is second to none. And we held a public hearing at which we had no one speak up. We had no one present and so we had no idea of any degree of local opposition whatsoever. We were the first agency to hold a public hearing on this matter in the town. MR.RON MORIZZ0 : I have a question. Would it have made a dif- ference if someone stood up and spoke? Would it really make a difference? MR. BREDEMEYER: We pride ourselves in trying to w~rk with the public as much as the,.applicant. MR. MORIZZ0 : That doesn't make any difference. MR. BREDEMEYER: I don't even know' what we're doing here now. CHAIRMAN GOEHRINGER: It's not your fault. Ron, first of all, what you are trying to see is an example of people trying to 'work things out. This project is seven_eighths under way. Alright. Almost nine nineths underway. MR. MORIZZ0 : That's why nobody is going to say no. CHAIRMAN GOEHRINGER: It has nothing to do with saying no at this particular point. The point is question is that we have an over- lapping jurisdictional law'. They-have the same. W~ have the same. That's the reason why it has come to us tonight. That"s the reason why we're sitting here. That is the main reason why we're sitting Page 19 - Thursday, March 17, 1988 Public Hearing - The Cove at Southold Southold Town Z.B.A. CHAIRMAN GOEHRINGER (continued): here. We're not sitting 'here for any other particular reason because we would all like to be home with our families. The point in question is because we care and because the Building Inspector has denied this particular application under 119-2~B. They have it under the wetlands law. I'll be honest with you. Under this particular situation, their construction, their light green area, and I know the Trustees don"t agree with this, we consider it a buffer zone. Ok. They established it as a buffer zone. The issue that is before us tonight is basically what I said in the beginning. The most westerly buildingswhich were next to the gentleman that walked out, we are at this par- ticular time, 91 feet, of which our jurisdiction stopped at 75, from those buildings. The buildings that are a little farther south and a little more east, we are 94 feet which our juris- diction stops at 75. The other buildings that are to the most I guess, southeast, we are 93 feet of which our jurisdiction stops at 75. It is basically an interpretation at this par- ticular time. Please remember, we are not trying to take any- thing away from anybody here. We are trying to listen to exact- ly what you're saying. But you must understand that there are active permits on these buildings. And these active permits are in effect except for the ones that I just mentioned~ Frank]in? Mr. Baer --you'd like to speak? MR. BAER: My name is Franklin Baer. I'm speaking as a resident on the other end of Cory Creek and also a person whO is concerned about not only this situation but the environment in general. And I accept what you say Mr. ~oehringer about what we're here for to- night. And 1 think what I'm going to ask you or the question I~m going to raise, is relevant to that I hope. The way in which this 18 foot line was established as in relation to the 5 foot line of the D.E.C., seems to me, to be somewhat confusing. In that if I am correct and if I'm not, please tell me. The 18 foot line is not always the same distance from the 75 foot line and it creates a question of where you are actually talking about sometimes when you compare these two. CHAIRMAN GOEHRINGER: foot line. I don't understand what you mean by the 18 MR. BAER: Well, the 18 foot line is mentioned in your .... ]£t says here, to locate buildings 75 or more feet from the New %fork State D.E.C. determined tidal wetland line and atnot less than 18 feet from the Town Trustees determined wetland grasses as ap- proved and so forth. The wetland of grasses is a different thing than the tidal wetland. And I understand you've got some .spartana up beyond the ~ump that exists there and you go down and you find the wetlands-on the other side of that. I don't how much has been destroyed by all this activity. And then you have th~.question also, of how much spartana and other growth there might have been and I don't know. I'm just asking the questions. If this deter- mination had been made before the topsoil had been removed to Page 20 - Thursday, March 17, 1988 Public Hearing - The Cove at Southold Southold Town Z.B.A. MR. BAER (continued): start building these buildings. The Trustees~ according to what Jay Bredermeyer told us a little while ago, actually didn't get started on the matter of establishing a line until about the same time the building had already begun. And actually didn't get around to establishing a line until a month or so later. I just can't understand how these things have been allowed to happen. And again, what there is you can do about it and I think something should be done to try to bring this in to order. And I hope that, I'm sure that the people who live in that area would be glad to work with you on it. And I hope that we can get something done in order to handle this thing right. And in the mean time, hope- fully', hopefully, we can do something to delay the additional building that may occur if nothing is done. Thank you. CHAIRMAN GOEHR1NGER: Mr. Klaskey, would you let Mr. Bredemeyer answer that question? MR. BREDEMEYER: There were about four or five questions. Tihe first question is; were the Trustees familiar with the extent of wetlands on the site? Yes we were. we were familiar for several years because we had a history of a violation when dredging activi- ty took place unapproved in the area of the. ho~t basin. We had walked the site at that time. The initial~a~ember 17th noted by the Bay Constable at our direction, was in fact, for the com- mencement of construction of this unit, I believe, up here. And at that time, we did familiarize ourselves with the site and that was actually prior to the clearing of this site. So we~were fa- miliar with the general distribution of the wetland grasses on the site. The clearing operation subsequent to the initial Trus- tee line determination on October 17th, I believe it was, that they did find the D.E.C. did clear wetlands, did clear the adja- cent area near the wetlands-but didn"t take any wetland indica- tors' oui whatsoever and we had already been on~.the site two or three times prior to that and also had the Bay Constable present° So there was no loss of wetland whatsoever on this site. There were no spartana or other wetlands lost. The spartana fringe on the site is somewhat unique. It is not tidal water nourished. It receives a substantial amount of salt spray from the prevail- ing southwesterly winds in the summertime and it's mostly a wind driven system. And so we actually have artificially main- tained wetlands well into the upland zone but we felt it was valuable to try to maintain as much of these as possible. The other questions pertaining to that, I think I pretty much covered what Mr. Baer said. Is there anything else I failed to cover on that? MR. BAER: I just got to say that connected with that Jay, I realize what you said. But the fact still remains that you didn't get around to establishing this 18 foot line until September and OctOber when building had already begun. Page 21 - Thursday, March 17, 1988 Public Hearing - The Cove at Southold Southold Town Z.B.A. MR. BREDEMEYER: That was something that was beyond our control. It was by virtue of the D.E.C.'s line. We had no control over that. MR. BAER: I realize that. I'm not saying it's your fault. I'm saying that's the way it is and something that has to be taken into consideration. MR. ROBSRI JONS$ : I~n the Trustees determination, did they ad- dress the problem of 32 units on 8 acres? MR. BREDEMEYER: The Trustees are without jurisdiction to co~ent on density but we did have a chance to discuss some of the issues surrounding the denitrofication systems since I'm personally fa- miliar with them and I've read up on them. And essentially, it's probably one of the most mitigated systems in use in the country presently and there's probably less nitrogen going into the site than would have been there from the pre-existing use as well as the shellfishing concerns of the Trustees were discussed at length because of our means to keeping our currently certified creek open. Sections of this creek are up for nomination as a critical environ- mental area and we certainly don't want to loose our shellfish. The sanitary system on the site discharging the waste 300 feet from the wetlands, will essentially provide a total chloroform free en- vironment. The pooper scooper ordinance which was poked fun at, was merely an attempt to have the homeowner's association to be neat and police up after their animals. And unfortunately, we can't be running after every animal in the town but we have to start someplace. And I'm sure that many of you have your animals, are in the same particular position. It was an effort on the part of the applicant and the Trustees to flag people in their home- owners' association realizing that new people in the community are probably going to be no less concerned for shellfishing than you are. And they probably will be as committed and that's the way we have to approach these things. The technical basis for the fixed elements of the system were looked at as much as-we could within our jurisdiction. Ws had no control over density. To give the ability to the Trustees wouldn't serve the situation. We don't want this. It's beyond our power. R~ JONES: Did the Trustees make any effort to get in contact with whatever agencies are concsrned with densities? MR. BREDEMEYER: The Trustees are powerless. The density issue is decided prior to us by a site plan approval. We had no con- trol over this. MR. JONES: What agency is presumably concerned with the density? MR. BREDEMEYER: It's set by law. It's set by the zoning in the area and the pre-existing site plan. When we were called on the site, our job was to look at the wetland related issue only'. We had no control over density. The Trustees would gladly lower density in the time anytime you asked them. We have no control over it whatsoever. Page 22 - Thursday, March 17, 1988 Public Hearing - The Cove at Southold Southold Town Z.B.A. MR. LONG: Mr. Bredemeyer, share with us why, and granted you put a lot of work in it, no one is denying that. But the basic question re- mains. Why did you put all the effort into establishing a harsher line and then let the building commence in back of that line? That's something that's still not clear in my mind. You will have to straighten that out. MR, BREDEMEYER: Ok. Fine. That's a good question. This is a permitting zoning. Our code specifically directs us to review an application with respect to a 75 foot zone. Within that area, if the Board achieves what they feel is total mitigation, we are not obliged to go outside the zone. The specific legislative in- tent of the 75 foot zone when we requested these code changes to the Town Board, was to give us the power to mitigate within that area so that we could control roof runoff, chloroform penetration, use of fertilizers, surface runoffs from other sources, pervious surfaces of, impervious surfaces of driveways of such. But es- sentially, the legislative intent of our wetland ordinance, Chap- ter 97, is to give us the right to mitigate. The fact that some structures may have penetrated the edge of that, is relatively insignificant because the structures, all their runoff is contained on site upland of that. There is no discharge seaward of it. The general contour of the slopes on the site is controlled so there are no steep grades of slopes that are going to essentially put any possible pollution from animals along into the creek. All these are areas that were looked at in the process. The actual line, the Trustees line, this area, the green area, is a zone of mitigation. If we dDn't achieve what we're looking for, we can say; yes, we're going to move it from the area and get it out of of our jurisdiction. That would have been the very easiest way out of this. We could have come in and said, get everything out of our jurisdiction and we could have walked away. And the appli- cant could have actually gone hack in this zone afterwards and put in high fertility lawn species as usual ordinary usual main- tenance. It was difficult to stop an applicant in maintaining a lawn which is a very ordinary and usual kind of a thing to do. But why working with them up front on it, and sayzng we want these restrictive covenants, we want the on site drainage containment, we want to push them back, we want the water lines back. And we were able to achieve a lot more. This is what g~_use~ this whole btu-ha-ha tonight. Am I correct? I don't honestly' know what caused the whole bru-ha-ha here tonight. The Trustees, besides from seeing some articles in the newspapers, had no idea there was any concern whatsoever. We had no one show up our public hearing. MRS. A. DICKINS0~ Then why did we get a variance notice? MR. BREDEMEYER: I ~elieve the gentleman from the Z.B.A. had a slight different set up then we do. We have a code which, tells us to review' an application within 75 feet of the water. It's not for us to variance. It's a permitting jurisdiction. Page 23 - Thursday, March 17, 1988 Public Hearing - The Cove at Southold Southold Town Z.B.A. CHAIRMAN GOEHRINGER: I'll explain that question ma'am. I need your name for the record. By the way, we are going to recess un- til the April 14th meeting. And we will come back and hopefully, I really ask you all to come in here and to look over the file so you're completely well versed with it. What had happened, basical- ly, was when the Trustees had established this line and this was brought up basically by Mr. Baer. We had 75 foot jurisdiction al- so. Since the line was moved back, we then,~the Building Inspector~ then felt that possibly we had jurisdiction in the area of the dif- ference between the dark green and the light green and that's the 18 foot mark that you're referring to Franklin on this basis here and that is at this closest point, we're 18 feet fromthe edge of the building. Remember, we're not dealing with environmental is- sues on the Zoning Board. We are dealing with setbacks. And that was the reason this particular application was denied and then it precipitated or initiated this hearing tonight. And basically, it's what ! said in the beginning of the meeting. In the beginning of the meeting I said basically, that we are here for an interpre- tation. Do we accept this line or do we accept this line. We have always accepted the New York State Department of Environmental Con- servation line. Always. We have uniquely done that. The question is, do we accept this line or do we accept this line. Conceivably, if we accept this line, then we are fairly close to and in the 75 foot pcrview area. If we accept thbs line, we are 90 plus feet away. And that's the basic issue before you tonight. But I have to surenously say I appreciate Mr. Bredemeyer coming down here. Because many of the questions that were addressed tonight, were issues that probably_~ should have been addressed at his public hearing and he did mention that to you. If you want to discuss based upon this, we would be very happy to entertain that. I'm going to ask Mr. Bredemeyer and I know it's an imposition because he does represent another Board in this town, to come back and address that issue or any other issues that we can't answer based upon what went onin this particular application and we'll be deal- ing with it on that basis. Mr. Klaskey. MR. KLASKEY: Ok. There was a question and I guess it's still not part of the purview Of the Board but I guess just for information purposes. The site ~s 8.75 acres. Within that and within the "M" zone, that permits exactly 33 units. That is how the determination is made. And on'that basis and on a site plan review process and · on numerous public hearings with the Planning Board within this Town. Tha='s how the yield and the density was in fact established I would like to just .... I know this is not an appropriate request at this point but I'd like to, for the record, establish that his applicant and this developer which I don't find is a bad word, has been sitting in a position not to move on certain portions of this program since September of 1987. And because of possibly conflict- ing jurisdictions and of course there was an attempt to extend this hearing date, we were going to be asked again to wait until April before this is actually, before decision is rendered. I would real~ ly request that this hearing be completed this evening in light of the hardship that it has to date been experienced by the developer. I think we've been patient. I think we responded to questions. I think we gave you probably one of the more comprehensive applica- tions that you have ever seen. It is not a question of not having enough information made available. We gave you a whole mitigation program. We established all the elevations and topography that conceivably have been requested. Thank~to the Board of Trustees., they also appeared to resolve other questions. And I'd really like to request the Board that this meeting be closed because we ~fPage 24 _ Thursday, March 17, 1988 ~Public Hearing - The Cove at Southold Southold Town Z.B.A. MR. KLASKEY (continued): express their views. CHAIRMAN GOEHRINGER: Well, let's ask the public. Is there any- body that still has questions that they want asked, would like to review the file? You would sir. MR. JOHNSON: There is one thing I would like to know. Everyone says there's runoff. No runoff. The front of that property on Bayview Road, I would say, is at least 20 feet or more higher than the lower end of the property. It can rain hard out here. You can have any kind of bad weather you want, and when it starts running down, it's going to go down in that creek. And if anybody goes by that drive going down to The Cove right now, any water that runs down that driveway is going to go right down where those platoon docks are and that's the way I feel about it. You're go~ ing to have runoff down there no matter what you do. I'd like to know how they're going to stop it when it's that much higher than where the water land is. CHAIRMAN GOEHRINGER: Thank you. MR. FRANK 8ASR: I would urge you to delay the decision un~il April 14th. I realize maybe it's something of a hardship to these deve- lopers. It's less than another month. And there are questions that have been raised here tonight which have not been answered and I think it's logical that you be given the opportunity to look into these matters even in more detail as you have suggested your- self and that we have an opportunity also, to those parties that may be concerned, to consider what has been said here tonight and come back with any comments or questions we might h~ve on April 14th. Thank you. CHAIRMAN GOEHRINGER: Just wait one second in the back. This gentleman was here. MR.~LLEN: I'm a property ~wner down in this area where the~'re, it's called Angel Shores. And I kind.o~ think that this is going to set a new precedent if this is th~%$i~e you're going to rule on using a line set by the Trustees rather than the D.E.C.. Then it will effect every other project that is now coming up because the Trustees will have to set new lines down in Angel Shores or other developments~ then I think you should wait and be very careful on your thought and take it up at your next meeting. CHAIRMAN GOEHRINGER: Yes. Just wait one second in the back. MR. ~ BRSDSMS¥SR : If I could speak to that. This was very un- usual in that the Trustees did not have an opportunity to meet with the personn~ of the D.E.C. We regularly tried to do that. Here again, the D.E.C. started the process without us, looked at it and said it's beyond their jurisdiction. So we never coordinated. But we have, as a result of this, already communicated with the D.E.C. and we are requesting to coordinate with their lines in the future on all projects. And in the Angel Shores development ~ ~ge 25 - Thursday, March 17, 1988 ~Public Hearing - The Cove at Southold ~ Southold Town Z.B.A. MR. BREDEMEYER (continued): we've already centrally coordinated with the D.E.C. through a pro- cess where '~ both lines are being 'incorporated in the pre- planning stages of the project so that this sort of situation should not arise. This is not precedental because the D.E.C. person~n~l and the Trustees are permitted to go out on these jointly. CHAIRMAN GOEHRINGER: In the back of the room now. MRS. JONES : Just as a supporter of not closing it out to- night. Do you know that your own agenda, that at least 160 people signed a petition and for'obvious reasons, many of them could not be here tonight. Certainly those of us who are here, would like to be in touch with them and tell them what are some of the questions that arose and some of the answers both good and bad that have been given. So I certainly urge you to hold the meeting over to the 14th. CHAIRMAN GOEHRINGER: Ok. Could I have your name ma'am. MRS. JONES: M. Jones. CHAIRMAN GOEHRINGER: Thank you Mrs. Jones. Yes sir. MR. MCKENNA: Forgive me but could you repeat the date that you re- ceived this application? CHAIRMAN GOEHRINGER: February 7, 1988. MR. MCKENNA: February ~ SECRETARY: Actually,_v's February 3rd. CHAIRMAN GOEHRINGER: Excuse me. I'm four days off. I just want to bear in mind so that everybody is aware of the situation when you go home. And that is, these are the three buildings here, the three series of buildings, I should say. Four units to each build- ing, that are the permits that have actually been held in abeyance. The remaining are still in effect. So that you're aware of that situation before you come down and review the particular file. And again, this one, this one and this one. The purpose of that again, you can see that they are the ones that fall the closest within the buffer line between the dark green and the light green. Just so you're aware of that situation. So what I'll do at this particular point, Mr. Klaskey, I'm sorry we have to rule over your ass~u~ing the Board votes in'~unison with me on this, we'll hold this over until the 14th of April. The last hearing in the meeting, we hope the counter is not as lengthy as it was tonight and we'll ask Mr. Bredemeyer if he wouldn't mind to come back since he's done such a great job to- night in answering some of the questions that you people have had and we thank you all for coming in. And I'll make that motion. MEMBER GRIGONIS: Second. Ail in favor - AYE.