HomeMy WebLinkAbout6010Office Location:
Town Annex/First Floor, Capital One Bank
54375 Main Road (at Youngs Avenue)
Southold, NY 11971
53095 Main Road
P.O. Box 1179
Southold, NY 11971-0959
http://southoldtown.northfork.net
BOARD OF APPEALS
TOWN OF SOUTHOLD
Tel. (631) 765.1809 Fax (631) 765.9064
COVER SHEET WITH ZBA FII,F,
STATUS OF FILE
ZBA# ~20l0
[ ] Refund issued: CANNOT activate or reactivate file (Applicant has withdrawn
application).
[ '~ NO REFUND DUE, based on time spent for Town to process application and
hearings.
[ ~ ] Obsolete & expired; CANNOT reactivate this file: NEW APPLICATION
NECESSARY:
Extensive time has passed; Zoning Code changes are now in effect and this application
expired. NOTE: Applicant may apply for a new application with Bnilding Inspector for
a new Notice of Disapprova! and submit NEW application with all documents and
current maps:to ZBA, or modify plan to conform to the current code. This Town file
based on applicant's previous year requests has expired.
[ ] No ~onns to be scanned; FILE # VOID: APPLICATION RETIffRNED. (All
forms were returned to applicant early in process, as requested by applicant.)
~2
APPEALS BOARD MEMBERS
James Dinizio, Jr., Chairman
Gerard P. Goehringer
Ruth D. Oliva
Michael A. Simon
Leslie Kanes Weisman
http://southoldtown.northfork.net
ZONING BOARD OF APPEALS
TOWN OF SOUTIIOLD
Tel. (631) 765-1809 · Fax (631) 765-9064
Mailing Address:
Southold Town Hall
53095 Main Road · EO. Box 1179
Southold, NY 11971-0959
Office Location:
Town Annex/First Floor, North Fork Bank
54375 Main Road (at Youngs Avenue)
Southold, NY 11971
September 10, 2007
Ms. Mary S. Zupa
4565 Paradise Point Road
Southold, NY 11971
Re: Your August 23, 2007 Letter -ZBA File # 6010
Dear Ms. Zupa:
We are in receipt of your August 23, 2007 letter. As set forth in our April 9, 2007
resolution, you must file a variance application to permit the continuing use of the legal non-
conforming marina use or alternatively, have it removed, so as to comply with the Zoning Board
Determination # 5266 adopted August 2, 2004. That determination granted your variance
request subject to that express condition, which was sustained by the Supreme Court and
Appellate Division, Second Department. The matter was adjourned on April 9th so that you
could apply for the variance as required in Determination # 5266.
The September 15, 2006 resolution you reference did not change that determination in
any respect.
Thank you for your attention.
V~ truly ~s,
OFFICE LOCATION:
Town Hall Annex
54375 State Route 25
(cor. Main Rd. & Youngs Ave.)
Southold, NY
MAILING ADDRESS:
P.O. Box 1179
Southold, NY 11971
Telephone: 631 765-1936
Fax: 631 765-3136
LOCAL WATERFRONT REVITALIZATION PROGRAM COORDINATOR
TOWN OF SOUTHOLD
To: James Dinizio, Chair
Town of Southold Zoning Board ~ ~
From: Mark Terry, Principal Planner
LWRP Coordinator
Date: March 28, 2007
Re: ZBA File Ref. No. 6010 (Zupa)
SCTM#1000- 81-01-16.7
MAR 2 8 2007
The proposed action has been reviewed to Chapter 268, Waterfront Consistency Review of the Town of
Southold Town Code and the Local Waterfront Revitalization Program (LWRP) Policy Standards. Based
upon the information provided on the LWRP Consistency Assessment Form submitted to this department,
as well as the records available to me, it is my recommendation that the proposed action is
INCONSISTENT with the denoted following Policy Standards and therefore is INCONSISTENT
with the LWRP.
I Policy 6 Protect and restore the quality and function of the Town of Southold ecosystem. ]
6.3 Protect and restore tidal and freshwater wetlands.
A. Comply with statutory and regulatory requirements of the Southold Town Board of Trustees
laws and regulations for all Andros Patent and other lands under their jurisdiction.
1. Comply with Trustee regulations and recommendations as set forth in Trustee
permit conditions.
The proposed setback from the house to the northern bulkhead/wetland boundary is 75 feeh and
the proposed setback from the house to the wetland boundary is 83 feet; a minimum setback
distance of 100' is required pursuant to Chapter 275, Section 275-3~ D. In addition~ pursuant to
Article XXIII Section 280-116 of the Town of Southold Town Code a minimum setback of 75 feet is
required from a bulkhead.
Note that thc applicant does not show a pool de-watering drywell. To further Policy 5 "Protect and
improve water quality and supply in the Town of Southold" please require that a drywell be
installed.
Pursuant to Chapter 268, the Zoning Board of Appeals shall consider this recommendation in preparing
its written determination regarding the consistency of the proposed action.
Town Hall, 53095 Main Road
P. O. Box 1179
Southold, New York 11971
Fax (516) 765-1823
Telephone (516) 765-1802
Your Building Permit application is being returned as incomplete for the following
reasons;
/
DATED: ),=~..-~.. ~- I~ b
Disa~rowd
ExpJratlon ........................ ~ 20
Building Inspector
APPLICATION FOR BIYlL4MNG PERMIT
Date ......... ~, 20 O~
INSTRUCTIONS
a. ~ applicatiam MUST be completely ~ in by qq~vriter or in ink and submitt~ to the Building Inspector with 3
sels of plans, accora~ ploi phm to scale. Fee a~:x~l~_ ~o sc. hedu~
b. Plot plan ~ loemtiun oflo~ and of Imildings ~ ~ip to adjoining premises or public stl~ets or
areas, and wsi~',~ys. , · ,
¢. The work C~verad }my this applicmtiun may not be ~ hefm~c ~ al'Building Perrmt.
d. Upou splxoval of this applicadun, thc Building ~ will ~mc ~ B~ldin8 Permit m the applicant. Such a pcmut
shall be kq~ o~ il~ l~mi~s available for inspection throughom tbe work,
e. No tmildi~ shall be occupied or used in whole or in part for ~my purpose what so ever until thc ~ Inspector
issu~ ,, Certifita~ of Occupancy.
L Every building permit shall expire if thc work authorized has not co~ within 12 momhs after the d~te of
lssu~n~ or has not b~n completed wflhm 18 mouths from such date. if no zo~ng aanemim~ts or Other ~ ~lt~ting the
~y have be~m {umcted in the interim, the Building Inspector may authorize, in writing, the exienskm of the permit for mn
addition six months. TIlurlmih~, a new Pcrlmt shall be requil-ed.
APPLICATION I$ HEREBY MADE to the Bsfildin8 ~t for the issuauee of a Buikting ~ ~ to the
Building Zone Ordi.q~Iee ofil~ Tc~nl of Southold, Suffolk Co~lty,~ York, and other applicable Lnwtg ~ or
Regulations. for the coustn~ion of buildings, additions, or altemtio~ or for removal or demolition as herein ~ The
applicant agrees to comply with all applicable laws, or~ ~ ¢o~, hOUSing code, ~md rugulafious, {md to admit
au~Jaomed respecters on pr~mis~ and in building for nec'~s~ry ~cas.
fSignam~e of ~Plm! or mine, if a corpor~on)
/~4~- (M~Jlj.~llddr~ssof~licnm)
State whether applicant is owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or builder
Builders l.icease No.
Plumbers License ~.: ~
Electricians t iccnse No.
Other Trade's I.iccnse No.
Location of land on which pJcOposed work will bc done:
House Numb~ S~t
Hamlet
County Fax Map No. 1000 Sex:non ~, t Block / Lot / /~% ~
Subdi~isi~m Filed Map No .. Lot ....
(Name)
Nature of work (check which applicable): New Building
Repair Removal Demolition
State exiatin~ usc and occupancy of premises and intended ~e and .~o~up~cy o~?opo~d co?stm~on:
A~fi~ A~n
~ Wo~
(~on)
4. Estirmted
Fee
5. lfdwellmg, nmrd~erofdwellmgun ts
If garage, number of cars ~
(To be paid (aa filing this application)
Number of dwelling units on each floor
6. If business, commercial or mixed occupancy, specify nature and extent of each type of use.
7. Dimensions of existing structures, if any: Front__ . Rear
H~ight Numtmr of Stofl~s
Dimensions of same slructure Wi~ ~ttemfions or additions: Fro~
Depth. Height Number of Stories
8. ~iousofenfirenewconstmctinn: Front ~ ~ ~:
Height ~/' Number of Stories
9. Size of Iot~:'Front Rear
10. Date of Purchase ~l Ob Name of Former Owner
Re= ? Z ! Dq h
1 I. Zone or use district in which pmm~ are situated ~: gO
12. Does pmposed construction violate any zoning law, ordinance or regulation? YES NO
13. Will lot be re-grmted? YES NO_~_Will exce~ fitl be removed from premises? YES__ NO.
14, 1'4runes of Owner of oremises~Address. Phone No.
Name of C~or 3a ~k ~ ra ,~- - ,Address Phone
15 a~ Is this property within 100 feet of a tidal wetland or a fieshwater wetland?
* [F YES~ SOUTHOLD TOWN TRUSTEES & D,E.C PERMITS~MAY BE REQUIRED.
b, ls this property within 300 feet ora tidal wetland? * YES '~ ?r-NO ~ ~) e ~ ct', ?r dZ.-~-~ c, ~ ~'d
* IF' YES, D.E,C, PERMITS MAY BE REQUIRED
t6, Provide survey, to scale, with accurate foundation plan and distances to property lines.
} 7 If elevation at an), point on property is at t 0 feet or below, must provide topographical data on survey.
STATE OF NEW YORK)
SS:
!'~/'[ ~[ 'q ,,~,-~ ~0 ~ bcmg duly sworn, de~ and says thai (s~he is the ~licant
(Name of ihdivickml signing c-ontmcO above
tS)He is the
(( ,retractor, Ager~t. Corporate Officer, etc,)
of said owra.~r or ownea's, and is duly authorized to perform or have l~a'formed the said work and to make and ~ ~ ~Ca~;
that al} slatements contained in th: applicat/on ~c e to ~ e best of his knowledee and belicC ~m<~ thai ]:~. work will be
Planning Board
-4- June .1, 1981
spondence from =he"Suffolk County Department of Health Services re-
garding the SEQRA, correspondence to the Suffolk County Planning
Commission, copy of the legal notice, metes and bounds description,
correspondence from the applicants attorney, sketch plan approval
for this subdivision on March 26, 1980, I would assume it is March
1981, also declaration of lead agency status wl~h Sou=hold Town
Planning Board, application for approval of plot, short environmen~l
assessment form. This completes :he file. This is a tract of prop-
erty that's being divided into two. The tract of property consists
of fifty-nine and one-half (59%) acres, one plot .being ~hirteen acres
=o =he north, the second plot being four:y-six acres to the south.
AS is :he procedure of public hearings, I will ask is there anyone
present this evening who would like to speak in opposition =o this
proposed minor subdivision of the Henry Jennin~s Estate? Hearing
none, is there anyone present this evening who would like =o speak
in favor of this proposed minor subdivision of the Henry Jepnin~s
Rudolph Brier: On behalf of =he estate, I would just like to re-
irradiate what I spoke to you gentlemen earlier on the site pian
approval. The purpose, I represent the estate whose selling it
subject to the division of the property, we've been advised by the
proposed purchaser, a Dr.. Damianos, =hat it would be used for =grape
growing purposes and :he purpose of =he.' splitting of it is that =he
larger piece is going to be used as a farm. Respectively, we ask the
board to allow the division of the property, thank you.
Mr. Raynor: Is there anyone else present this evening who woul~ like
=o speak in favor of =his proposed subdivision? Is =here anyone
present this evening that has some information t-hat ~%y be neither
pro nor con but should come before this board at this time? Hearing
none, is there any member of the board =hat has any questions? Mr.
Orlowski, Mr. Latham, Mr. Wall, Mr. Mullen?
Ail answered in the negative.
~4r. Raynor: There being no further questions we will deem this
hearing closed and thank you for coming down this evening.
Mil:on Mehlman minor subdivision. Johh $:rong appeard before the
board to discuss with :hem his request :hat :he right-of-way be
=hanged from 50 fee: to 25 feet. The board feels =ha: 50 fee=for
:he right-of-way is needed if no= at this time but for the fu:ure.
Mr. Sprong's request has been. denied.
On ~=ion made by Mr. Orlowski, seconded by Mr. La=ham, i= was
P. ESOLVED =o set-off as indicated of :he minor subdivision
Paradise Point Corporation lots entitled "Club House" of two and
three ~uarter acres and an unnu~nbered lot on Sou=hold Bay consisting
of 1.7 acres directly east of the inlet basin.
Vote of :he Board: Ayes: Raynor, Wall, Orlowski, Mullen, La=ham
$ B9'23'08" E
21.63'
TEST :~OLES DATA
N
SUFFOLK COUNTY, NEW !YORK
S.C. TAX No. 1000-81-01=-1'6~
SCALE 1"=30'
JANUARY, 7, 2002
JANUARY 29, 2002 REVISED LOT ~REA NOTATION
FEBRUARY 14, 2002 REVISED DRIVEWAY LABELS
SURVEY OF PROPERTY
SITUA TED A T
BAYVIF
TOWN OF SOUTHOLD
MAY 15, 2002
AUGUST 5, 2002 REVISED WETLANDS LINE,
LOCATED WETLANDS & ADDE9 TOPOGRAPHICAL SURVEY
JUNE 1, 2002 ADDED SiTE PLAN
SITE PLAN & ADDED TEST HOLE
No. 2
LOT AREA INCLUDING THE BULKHEAD AREA AT THE NORTHWEST PORTION OF = 75,687,56 sq.. ff.
THE LOT PROJECTING INTO SOUTHOLD BAY (TO BULKHEADS & T~E LINES) 1.758
LOT AREA EXCLUDING THE BULKHEAD AREA AT THE NORTHWEST PORTION OF = 72,747.53 lq. ft.
THE LOT PROJECTING INTO SOUTHOLD BAY (TO BULKHEADS & TIE LINES) 1.670
CHICAGO "~,~
MARY S.
INSURANCE COMPANY
SO UTHOLD
(TOWN HARBOR)
WETLAND BOUNDARy FOLLOWS
N BB'54'O2" [:' THE FACE
.2./
134.02'
pAD
"29" E
BOAT
BASIN
N Y B, IJc. No. 49668
Joseph A. Ingegno
Land Surveyor
PHONE (JiB ~ )727-2090
Fax (630727-1727
1. ELEVATIONS ARE REFERENCEB TO N,G.V.D. 1939 DATUM
EXISTING ELEVATIONS AP,[ SHOWN THUS:~L~
EXISTING CONTOUR UNES ARE SHOWN THUS: ..... 5 .....
2. FLOOC ZONE INFORMATION TANEN FROM:
FLOOD INSURANCE RATE NAP No. 35105C0167 O
ZONE AE: BASE FLOOD ELEVATIONS DETERMINED
ZONE X*: AREAS OF 5CO-YEAR FLOOD; AREAS OF IO0~-YEAR FLOOD WITH AVERAGE
DEPTH OF LESS ~ 1 FOOT OR WiTH ~N/~3E ~ LESS THAN
I SQUARE MILE, AND AREAS PROTECTED ~Y LEVEES FROM IO0-YERR FLOOD.
ZONE X: ARF-&S DETERMINED TO BE OUTSIDE 500-YEAR FLOODPLAIN.
Office
Notes:
For Office Use Only
Date Assigned/Assignmen! No.
,JAN
2007
APPLICATION TO THE SOUTHOLD TOWN BOARD OF APPEALS
Basin Road Southo:1d
Parcel Location: House No. 5@0 Street Hamlet
R-80
SCTMl000Section 8:1 Block 1 Lot(s)_:16.TLotSize 1.7a Zone District
1 (WE) APPEAL THE WRITTEN DETERMINATION OF THE BUILDING INSPECTOR
DATED: December 22. 2006
Owner as Applicant: Mary S. Zupa
Mailing
Address:
4565 paradise Point Road, Southold, NY 11971
Telephone: 631 765 6112 Fax: 631 765 6119
NOTE: If applicant is not the owner, state if applicant is owner's attorney, agent, architect, builder, contract vendee, etc.
Authorized Representative:
Address:
Telephone: Fax:
Please specify who you wish correspondence to be mailed to, from the above listed names:
[gApplicant/Owner(s) [] Authorized Representative [] Other:
WHEREBY THE BUILDING INSPECTOR DENIED AN APPLICATION DATED :12/2 1/06
FOR:
~XBuilding Permit
[] Certificate of Occupancy [] Pre-Certificate of Occupancy
[] Change of Use
[] Permit for As-Built Construction
[]
Other:
Provision of the Zoning Ordinance Appealed. Indicate Article, Section, Subsection and paragraph
of Zoning Ordinance by numbers. Do not quote the code.
Article Section 100- Subsection
Type of Appeal. An Appeal is made for:
[]cA Variance to the Zoning Code or Zoning Map.
[] A Variance due to lack of access required by New York Town Law-Section 280-A.
~2 Interpretation of the Town Code, Article_ I Section 2 8 0 + 4
~:ReversalorOtherg~a~ D~c~cm-~q2~: R/2./04 ~ncl Zg~ ~qcll~ g,/'15/06
A prior appeal ~has E has not been made with respect to this property UNDER Appeal
No. 5 2 6 0lea r~2.d)~L4_.
Page 2
Owner: Mary ~. Zupa
REASONS FOR APPEAL (additional sheets mav be used with applicant's signature):
AREA VARIANCE REASONS:
(1) An undesirable change will not be produced in the CHARACTER of the neighborhood or a
detriment to nearby properties if granted, because:
See Attachment
(2) The benefit sought by the applicant CANNOT be achieved by some method feasible for the
applicant to pursue, other than an area variance, because:
(3) The amount of relief requested is not substantial because:
(4) The variance will NOT have an adverse effect or impact on the physical or environmental conditions
in the neighborhood or district because:
(5) Has the alleged difficulty been self-created? ( )Yes, or ( )No.
This is the MINIMUM that is necessary and adequate, and at the same time preserve and protect the
character of the neighborhood and the health, safety, and welfare of the community.
Che~k thk box ( ~ IF A USE VARIANCE IS BEING REQUESTED, AND PLEASE COMPLETE THE ATTACHED USE VARIANCE
SHEET: (Please be sure lo consult your attorney.)
See Attachment
Sworn to before me this
dayof Dec ,20 Q(~
Notary Pubh~
SignatuL~of~l~ant or Authorized Agent
(Agent mast s~mlt ~tten Authorization from Owner)
CONSTANCE SZYIdGZAK
No. 01SZ.,61~5616
Comml km Expk Aid lC. -
ATTACHMENT TO ZBA APPEAL APPLICATION DATED January 11,2007
ZBA decision #5244 of August 2, 2004 grants an area variance to permit construction of
a
home, "on condition, however, that no building permit be issued until the nonconforming
marina use is removed or a variance is granted to permit its continued use in conjunction
with
a residential use." The decision cites {}280-121G for support.
On September 15, 2006, however, the ZBA ruled that Section 280-121A prohibiting the
rebuilding of non-conforming uses was not applicable, and that the Association could
rebuild and relocate its docks. This moots the conditions of the 8/2/04 grant ora variance,
i.e. removal of the docks, or a variance for a "marina use" of the 580 Basin Road
property.
In doing this, the ZBA decided that the Association docks did not constitute a non
conforming "marina use" of the 580 Basin Road property, but a "non-conforming use of
a non-commercial boat basin" owned and controlled by the Trustees." (On September 29,
2005, the NY Supreme Court (Cohalan, J.) decided that the Basin was not owned by the
Association but by the Trustees).
The minutes of the 7/17/06 hearing indicated that the Association docks should never
have been called a "marina." In short, if the zoning code is not applicable, and
specifically Section 280-121A, neither is 280-121G.
The ZBA decision of 9/15/06 has mooted the conditions for removal of the docks, or for
a variance, which were attached to the issuance ora building permit. However, to the
extent a use variance is required, this application is an appeal for a variance.
Mary S. Zupa
580 Basin Road, Southold, NY
SCTM # 1000-81-1-16.7
Town of Southold '
LWRP CONSISTENCY ASSESSMENT FORM ~ ~
A. INSTRUCTIONS
1. All applicants for permits* including Town of Southold agencies, shall complete this CCAF for
proposed actions that are subject to the Town of Southold Waterfront Consistency Review Law.
This assessment is intended to supplement other information used by a Town of Southold agency
in making a determination of consistency. *Except minor exempt actions including Building
Permit and other ministerial permits not located within the Coastal Erosion Hazard Area
2. Before answering the questions in Section C, the preparer of this form should review the
exempt minor action list, policies and explanations of each policy contained in the Town of
Southold Local Waterfront Revitalization Program. A proposed action will be evaluated as to its
significant beneficial and adverse effects upon the coastal area (which includes all of Southold
Town).
3. If any question in Section C on this form is answered "yes", then the proposed action may
affect the achievement of the LWRP policy standards and conditions contained in the consistency
review law. Thus, the action should be analyzed in more detail and, if necessary, modified prior
to making a determination that it is consistent to the maximum extent practicable with the LWRP
policy standards and conditions. If an action cannot be certified as consistent with the LWRP
policy standards and conditions, it shall not be undertaken.
A copy of the LWRP is available in the following places: online at the Town of Southold's
website (southoldtown.northfork.net), the Board of Trustees Office, the Planning Department, all
local libraries and the Town Clerk's office.
B. DESCRIPTION OF SITE AND PROPOSED ACTION
SCTM# 81 1 16.7
The Application has been submitted to (check appropriate response):
Town Board Planning Dept. Building Dept. X Zoning Board of Appeals
1. Category of Town of Southold agency action (check appropriate response):
(a) Action undertaken directly by Town agency (e.g. capital
construction, planning activity, agency regulation, land transaction)
(b) Financial assistance (e.g. grant, loan, subsidy)
(c) Permit~ approval~ license~ certification:
Nature and extent of action:
Construction of sin.qle family dwellin.q, i/.q pool, on-site sewa.qe disposal
system and associated site improvements as shown on attached plan. All
proposed activity >75' from wetland.
Mary S. Zupa
580 Basin Road, Southold, NY
SCTM # 1000-81-1-16.7
Location of action: 580 BASIN ROAD, SOUTHOLD
Site acreage: 1.7 A
Present land use: VACANT
Present zoning classification: R-80
2. If an application for the proposed action has been filed with the Town of Southold
agency, the following information shall be provided:
(a) Name of applicant: MARY S. ZUPA
(b) Mailing address: 4565 PARADISE POINT ROAD~ SOUTHOLD~ NY 11971
(c) Telephone number: 631-765-6112
(d) Application number, if any:.__
Will the action be directly undertaken, require funding, or approval by a state or federal
agency? Yes No
If yes, which state or federal agency? NYSDEC, SCHD
DEVELOPED COAST POLICY
Policy 1. Foster a pattern of development in the Town of Southold that enhances
community character, preserves open space, makes efficient use of infrastructure,
makes beneficial use of a coastal location, and minimizes adverse effects of
development. See LWRP Section III - Policies; Page 2 for evaluation
criteria.
Yes No Not Applicable
Development of this site is proposed in a manner consistent with the current
standards and is consistent with the "pattern of development in the town".
Policy 2. Protect and preserve historic and archaeological resources of the Town of
Southold. See LWRP Section III - Policies Pages 3 through 6 for evaluation criteria
Yes No Not Applicable
The proposed project is not located near any historic sites or districts
Policy 3. Enhance visual quality and protect scenic resources throughout the Town
of Southold. See LWRP Section III - Policies Pages 6 through 7 for evaluation
criteria
Yes No Not Applicable
Development of this site is proposed in a manner consistent with the
neighborhood in which it is located. Afl proposed activity designed in
accordance with requlations, laws and current standards.
Mary S. Zupa
580 Basin Road, Southold, NY
SCTM # 1000-81-1-16.7
NATURAL COAST POLICIES
Policy 4. Minimize loss of life, structures, and natural resources from flooding and
erosion. See LWRP Section III - Policies Pages 8 through 16 for evaluation criteria
Yes No Not Applicable
Development of the site will be done in accordance with FEMA standards,
NYSDEC regulations and Chapter 275 of the Town Code.
Policy 5. Protect and improve water quality and supply in the Town of Southold.
See LWRP Section III - Policies Pages 16 through 21 for evaluation criteria
Ye~s No Not Applicable
Development of the site will be done in accordance with FEMA standards,
NYSDEC regulations, Chapter 275 of the Town Code and Article 5 and Article 7
of the Suffolk County Sanitary Code.
Policy 6. Protect and restore the quality and function of the Town of Southold
ecosystems including Significant Coastal Fish and Wildlife Habitats and wetlands.
See LWRP Section III - Policies; Pages 22 through 32 for evaluation criteria.
Yes No Not Applicable
Development of the site will be done in accordance with NYSDEC regulations
and Chapter 275 of the Town Code.
Policy 7. Protect and improve air quality in the Town of Southold. See LWRP
Section III - Policies Pages 32 through 34 for evaluation criteria.
Yes No Not Applicable
It does not appear that Poficy 7 is relevant to development of this site.
Policy 8. Minimize environmental degradation in Town of Southold from solid waste
and hazardous substances and wastes. See LWRP Section 1II - Policies; Pages 34
through 38 for evaluation criteria.
Yes No Not Applicable
As in all other residential development, it is expected that the occupant will
comply with the expected treatment of residential solid waste, yard waste and
recyclable material. I
Mary S. Zupa
580 Basin Road, Southold, NY
SCTM # 1000-81-1-16.7
PUBLIC COAST POLICIES
Policy 9. Provide for public access to, and recreational use of, coastal waters, public
lands, and public resources of the Town of Southold. See LWRP Section III -
Policies; Pages 38 through 46 for evaluation criteria.
Yes No Not Applicable
Development of this site has no impact on pubfic access to, and recreational use
of, coastal waters, etc.
WORKING COAST POLICIES
Policy 10. Protect Southold's water-dependent uses and promote siting of new
water-dependent uses in suitable locations. See LWRP Section III - Policies; Pages
47 through 56 for evaluation criteria.
Yes No Not Applicable
It does not appear that Policy 10 is relevant to proposed development of this
residential lot.
Policy 11. Promote sustainable use of living marine resources in Long Island Sound,
the Peconic Estuary and Town waters. See LWRP Section III - Policies; Pages 57
through 62 for evaluation criteria.
Yes No Not Applicable
It does not appear that Poficy 11 is relevant to proposed development of this
residential lot
Policy 12. Protect agricultural lands in the Town of Southold. See LWRP Section Ill
- Policies; Pages 62 through 65 for evaluation criteria.
Yes No Not Applicable
It does not appear that Poficy 12 is relevant to proposed development of this
residential lot
Policy 13. Promote appropriate use and development of energy and mineral
resources. See LWRP Section III - Policies; Pages 65 through 68 for evaluation
criteria.
Yes No Not Applicable
It does not appear that Policy 13 is relevant to proposed development of this
residential lot
APPLICANT'S PROJECT DESCRIPTION
(For ZBA Reference)
Applicant: Mary $. Zupa Date Prepared:
I. For Demolition of Existing Building Areas
Please describe areas being removed: HA
12/26/06
Il. New Construction Areas (New Dwelling or New Additions/Extensions):
Dimensions of first floor extension: 4 0×7 0
Dimensions of new second floor: 40x? 0
Dimensions of floor above second level:
Height (from finished ground to top of ridge): 31
ls basement or lowest floor area being constructed? If yes, please provide height (above ground)
measured from natural existing grade to first floor:
Ill. Proposed Alterations or Interior Structural Changes without enlargement/extension
(attach extra sheet if necessary) - Please describe building areas:
Number of Floors and General Characteristics BEFORE Alterations:
Number of Floors and Changes WITH Alterations:
IV. Calculations of building areas and lot coverage (from surveyor):
Existing square footage of buildings on your property: 0
2000
Proposed increase of building coverage:
Square footage of your lot: 75,000
Percentage of coverage of your lot by building area: 3 %
V. Purpose of New Construction Requested: family residence
VI. Please describe the land contours (flat, slope %, etc.) as exist and how it relates to the
difficulty in meeting the code requirement(s): none
Please submit seven (7) photos, labeled to show all yard areas of proposed construction after
staking corners for ney* construction), or photos of existing building area to be altered (area
of requested changes).
7/2002: 2/2005; 1/2006
VICTOR J. ZUPA
ATTORNEY AT [,AW
4565 PARADISE POINT ROAD
SOUTHOLD, NEW YORK 11971
E-MAIL vzupa~optonline.net
ADMITTED: NY,CT,DC,MD
TELEPHONE (631) 765-6112
FACSIMILE (631) 765-6119
Certified Mail
December 20, 2006
Mr. Michael J. Verity
Chief Building Inspector
Southold Building Department
Southold Town Hall
53095 Main Road
Southold, NY 11971
Re: Application for Building Permit on 580 Basin Road
Dear Mr. Verity:
Enclosed please find the following documents:
1) Southold Building Department application;
2) Four sets of building plans;
3) Survey of 580 Basin Road;
4) NYS DEC permit;
5) Southold Trustees permit;
6) Suflblk County Health Department approval;
7) NYS Energy Conservation Construction Code plan;
8) Planning Board Resolution approving 580 Basin Road as a lot; and
9) Check in the amount of $I50.
This is a new application for a building permit based on changed circumstances. A prior
application for a building permit on this property was denied in November 2002 on the
basis that the existence of certain docks constituted a "marina use" of the property, and
that a residence would constitute a second use. On August 2, 2004, the ZBA issued a
building permit on condition that the docks or -marina use" be removed.
However. on September 15, 2006, after the NY Supreme Court determined that the Basin
was owned by the Southold Trustees, the ZBA decided that the docks were not a "marina
use", and that any non conforming use was on the Basin---not on the property of Mary
Zupa. Since the docks do not constitute a "marina ase" of the property of Mary Zupa, a
building permit should issue forthwith.
The ZBA decisions of August 2, 2004 and September 15, 2006, and the minutes from the
July 27, 2005 hearing on which the September 15, 2006 decision was based, are enclosed.
It would be appreciated if you would act on this permit application in an expeditious
manner. If you have any questions please call me
Sincerely,
Victor J. Zupa
Cc: Hon. Scott Russell, Southold Town Supervisor
Hon. James King, President, Southold Trustees
PROJECT I.D. NUMBER ~ 617.20
I
Appendix C
State Environmental Quality Review
SHORT ENVIRONMENTAL ASSESSMENT FORM
For UNLISTED ACTIONS Only
.FART I--PROJECT INFORMATION (To be completed by Applicant ct Project sponsor)
SEQR
APPLICANT/SPONSOR
Mary S. Zupa
PROJECT NAME
3. PROJECT LOCATION:
Town of Southold Suf.folk
580 Basin Road, Southold, NY
Construction of one family residence
9. WHAT IS PRE~ENT I. AND USE IN VICINITY OF PROJECT?
Suffolk County Health, Southold Trustees, NY DEC
~No
Mary S. Zupa Oat~
If the action is in the Coastal Area, and you am a state agency, complete the
Coastal Assessment Form before proceeding with this assessment
12/2~/06
OVER
)ART II--ENVIRONMENTAL ASSESSMENT (To be completed by Agency)
WILL THE PROJECT HAVE AN IMPACT ON THE ENVIRONMENTAL CHARACTERISTICS THAT CAUSED THE ESTABLISHMENT OF A CEA?
IS THERE, OR iS THERE LIKELY TO BE, CONTROVERSY RELAYED TO POTENTIAL ADVERSE ENVIRONMENTAL IMPACTS?
~ Yes [] No Il Yes. explain brielly
PART Ill--DETERMINATION OF SIGNIFICANCE (To be completed by Agency)
INS?RUCTfON$: For each adverse effect identified alcove, determine wttether it is substantial, large, impo~ant or otherwise significant.
Each effect should be assessed in connection with its (a) setting (La. urban or rural}; (bi probability of occurring; (c) duralion; (d)
irreversibility; (e) geograpi3ic scope; and (f) magnitude. If necessa~', add attachments or reference supporting materials. E~su~e that
explanations contam sulficient detail to show that all relevant adverse impacts have been identlfieo an0 adeguately addressed. If'
guestion D of Par1 II was checked yes, the determination and significance must evaiuate the potential impact pi the prop(~sea action
[] Check this box if you have identified one or more potentially large or significant adverse imr!5~cts which MAY
occur. Then proceed directly to the FULL EAF and/or prepare a positive declaration.
[] Check this box if you have determined, based on the information and analysis above and any supporting
documentation, that the proposed action WILL NOT result in any significant a0verse environmentaJ impacts
AND provide on attachments as necessary, the reasons supporting ti3is determination:
VICTOR J. ZUPA
ATTORNEY AT LAW
456S PARADISE POINT ROAD
SOUTHOLD, NEW YORK 11971
E-MAIL vzupa(~/~optonline.ne t
ADMITTED: NY,CT,DC,MD
TELEPHONE (631) 76S-6112
FACSIMILE (631) 765-6119
CERTIFIED MAIL
January 11,2007
Southold Zoning Board of Appeals
53095 Main Road
Southold, NY 11971-0959
Dear Board:
Re: Appeal of Mary S. Zupa
580 Basin Road (SCTM 1000.81.1.16.7)
Enclosed please find the following documents in support of an appeal to the ZBA from
the building inspectors erroneous interpretation dated December 22, 2006 denying Mary
Zupa a building permit:
1. ZBA appeal application form with attachment;
2. environmental assessment form;
3. project description:
4. application of December 21,2006 to the building department for a permit;
5. building inspectors December 22, 2006 denial of the application;
6. acheck in the amount of $250;
7. a survey of the property showing the proposed location of the one family
residence;
8. Minntes of ZBA hearing of 7/17/06;
9. ZBA decisions Nos. 5914 and 5266; and
I 0. 1981 Planning Board Resolution approving the lot.
The ZBA's decision (#5266) granted an area variance to permit construction ora home, "on
condition, however, that no building permit be issued until the noncontbrming marina use [of
the property] is removed or a variance is granted to permit its continued use in conjunction
with a residential use." The decision cites Southold Zoning Ordinance §280-121 relating to
the continuation of non contbrming uses. However, the recent ZBA decision (#5914)
decided with respect to the same "marina" that {}280-121 was not applicable since, not only
xvas there no "marina", but any non conforming use was on the Basin i.e. lands o~ ned by the
Trustees. Further, ilo use variance is required for Paradise Point Association's usc Since
there is no "marina use" of the property for Paradise Point Association purposes, there can be
no "marina use" or'the property tbr MarL Zupa's purpose. Effectively. the conditions have
been mooted b.', material changes, and a building permit shonld issue.
The application for a building permit submitted a few days ago is complete in all
respects, except for the building inspector's erroneous interpretation that ZBA decision
#5266 precluded the issuance of a building permit without taking into account the recent
ZBA decision (#5914). This appeal is made from that erroneous interpretation.
To the extent the ZBA concludes a use variance is required for Mary Zupa to construct a
residence on the property, this appeal requests one.
Cc: Hon. Scott Russell
Hon. James King
Sincerely,
ELIZABETH A. NEVILLE
TOWN CLERK
REGISTRAR OF VITAL STATISTICS
MARRIAGE OFFICER
RECORDS MANAGEMENT OFFICER
FREEDOM OF INFORMATION OFFICER
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
Fax (631) 765-6145
Telephone (631) 765-1800
southoldtown.northfork.net
OFFICE OF THE TOWN CLERK
TOWN OF SOUTHOLD
TO:
FROM:
DATED:
RE:
Southold Town Zoning Board of Appeals
Elizabeth A. Neville
January 30, 2007
Zoning Appeal No. 6010
Transmitted herewith is Zoning Appeals No. 6010 of Mary S. Zupa - the Application to the
Southold Town Zoning Board of Appeals. Also enclosed is the Applicant's Project Description,
Short Environmental Assessment Form, Application for Building Permit, LWRP Consistency
Assessment Form, letter from Victor J. Zupa; Attorney at Law to the Building Department
regarding the Application for Building Permit, letter from Victor J. Zupa; Attorney at Law to the
Southold Zoning Board of Appeals regarding the Appeal of Mary S. Zupa, Board of Appeals
Finding, Deliberations and Determination for Appeal No. 5266, Zoning Board of Appeals
Findings, Deliberations, and Determination for Z.B.A. File #5914, page number 4 of the June 1,
1981 Planning Board meeting, Transcript from the Zoning Board of Appeals meeting of July 27,
2006, and a Survey of the property prepared by Joseph A. Ingegno; Land Surveyor.
Town Of Southold
P.O Box 1179
Southold, NY 11971
Date: 01/29/07
* * * RECEIPT * * *
ReceiptS: 745
Transaction(s):
1 1
Application Fees
Reference Subtotal
6010 $250.00
Check#: 745
Total Paid: $250.00
Name:
Zupa, Mary S
4565 Paradise Point Rd
Southold, NY 11971
Clerk ID: MICHELLE Internal ID: 6010
ESSEKS, HeFTeR & ANGEL, LLP
WIlLIam W. ES$eKS
MARCIA Z, HeFTER
STEPHEN R. ~ngel
CARmE~ M. DI TALIA
~nTHONY C. PASCA
COUNSELORS AT LAW
108 EAST MAIN STREET
P. O. BOX 279
RIVERhEAD, N.Y. 11901-0279
(631)
TELECOPlER NUMBEr (631) 369 2065
MAR 2 $ 2007
March 28, 2007
WATE~ MILL OFFICE
MONTAUK HIGHWAY
P. O. Box 570
WATER MILL, N.Y, 11976
(631) 726-6633
Zoning Board Of Appeals
53095 Main Road
P.O. Box 1179
Southold, NY 11971-0959
Re: Application of Mary S. Zupa, 580 Basin Road
Dear Board Members:
As you may recall, we are one of the attorneys for the Paradise Point Association,
Inc. ("Association"), which owns docks and is benefited by decisions of this Board
regarding the Association's legal, nonconforming marina/community docking facility on
the property known as 580 Basin Road. We understand that the fee owner of that
property, Mary' S. Zupa, is currently applying, yet again, for a permit to construct a house
on that property.
While we intend to appear at the hearing on the application, we are offering this
letter and the accompanying exhibits in advance of the hearing, in order to provide the
Board with certain background facts, including copies of the many court decisions and
adininistrative decisions that pre-date the current application. As this Board will see, the
current application appears to be nothing more than another attempt by the Zupas to
circumvent not only this Board's prior decision, but the Supreme Court and Appellate
Division decisions that upheld this Board's prior decision. Not only is the new application
barred by the doctrines of res judicata and collateral estoppel, but the Board lacks
jurisdiction to entertain the appeal based on a decision issued yesterday by the State's
highest court.
HEFTER ~, ANGel, LLP
COUNSELORS AT LAW
Zoning Board of Appeals
Page 2 of 11
Background Facts
The underlying controversy involves several properties located in Paradise Point.
For ease of reference, I am attaching as Exhibit A to this letter a copy of the 1963
subdivision map entitled "Map of Section One, Paradise Point at Bayview," which shows
the Basin, the Canal, the Zupas' "365 Basin Road Property" (lot numbered 5 on the map)
and the "580 Basin Road Property" (shown on the map as an unnumbered lot with a
proposed road labeled "Future Extension" running through it).
The Association is a not-for-profit corporation formed in 1961 as a homeowner's
association for the Paradise Point community. The Association's community has 26
families, including the Zupas. The Association's Certificate of Incorporation expressly
states that the purpose of the Association, from its inception, included maintaining the
community's boating and recreational facilities, i.e.,
[t]o provide for the care and maintenance of the Beaches,
Waters, Boat Basins, Bulkheads, Roads, Club Houses,
Buildings or other structures, and other recreational facilities,
to supervise recreation, sports, boating, bathing, etc., to
perpetuate the standard and tone of the community; to promote
health, welfare, morals, pleasures, recreation, indoor and
outdoor games, etc., and to promote sociability and good
fellowship for the members of the [Association].
As described in one of the court decisions discussed further below, for over forty
years, the Association has operated a community docking facility in the Basin, using the
580 Basin Road Property as upland access to the docks.
The original developers of the subdivision recorded "Covenants and Restrictions"
that expressly recognized the need for the community to contribute to the Association's
maintenance of the marina and the Basin.
Although the Association has operated the marina since the 1960s, it formally
acquired a number of deeded property interests from the then owners of the 580 Basin
Road Property by virtue of a deed dated February 23, 1989. (Exhibit B).
The Zupas' acquired the 580 Basin Road Property in 2002, subject to the rights that
had already been granted to the Association in the 1989 deed.
EsseK$, HEFTER ~ AngeL, LLP
COUNSELORS AT IAW
Zoning Board of Appeals
Page 3 of 11
Among other interests, the deed conveyed to the Association all of the property
shown on the 1963 subdivision map as the "Basin," and the "Canal," and all interests the
owners had in the jetties protecting the Canal (one of which extends from the 580 Basin
Road Property into the bay).
Another key interest granted by this 1989 deed to the Association is an express
easement over the entire portion of the property adjacent to the Basin. Most importantly
for purposes of this Board's review of this matter, the deed expressly articulated the
purposes of the easement as providing the Association with "free and unobstructed access
to the Basin" including for "the construction and maintenance of ... docks, etc., as may be
deemed appropriate by the [Association]," and for such other purposes that are "consistent
with the [Association's] Constitution... including, but not limited to: Providing for the
care and maintenance of the Beaches, Waters, Bulkheads... or other structures and other
Recreation Facilities; supervising recreation, sports, boating, bathing, etc .... "(Id.)
The ZBA's August 2, 2004 Decision Granting
Mary S. Zupa a Conditional Variance
Central to the current application is a decision of this Board, issued on August 2,
2004 on a prior application made by the Zupas. (Exhibit C).
That decision granted the Zupas' application for an area variance to permit
construction of a single family home on the 580 Property. The decision specified,
however, that no building permit could be issued until the pre-existing nonconforming
marina use of the property was either discontinued by the Association or a variance was
granted allowing the pre-existing marina use to coexist with the residential use proposed by
the Zupas. The ZBA found that the Zupas' 580 Property was "burdened with a pre-
existing non-conforming use," and that the Association's marina was a "legal,
nonconforming marina use" of the property.
Thus, this Board has already granted the Zupas permission to construct a house on
their property, provided that either the Association abandon its marina or the Zupas seek a
variance to allow the marina to co-exist with the house. To our knowledge, the Zupas
have not accepted this Board's invitation to make that variance application.
ESSEK$, HEFTER & ANGEL, LLP
COUNSELORS AT LAW
Zoning Board of Appeals
Page 4 of 11
Mary S. Zupa v. Zoning Board of Appeals and Paradise Point Association ("Zupa I"):
Zupa's Action to Challenge Zoning Board Decision Upholding Legality of
Association's Docks
As this Board may recall, the Zupas appealed the Board's determination to the
courts, in a proceeding entitled Mary S. Zupa v. Zoning Board of Appeals of the Town of
$outhold and Paradise Point Association, Inc., Suffolk County Index No. 04-19605
("Zupa I"). The Zupas specifically argued that this Board's condition for obtaining a
building permit (i.e., either abandoning the marina or obtaining a variance to allow the two
uses to co-exist), was improper and unauthorized.
The Supreme Court Suffolk County rejected the Zupas' arguments, denied the
petition, and upheld the Board's determination in an April 14, 2005 decision of the
Honorable Daniel J. Loughlin. (Exhibit D). Justice Loughlin concluded that the ZBA's
determination that the marina use constituted a "pre-existing nonconforming use of the
property" under the Town of Southold's zoning code was rational and that the ZBA had
made appropriate findings regarding the pre-existing nonconforming use and conditional
area variance.
The Zupas appealed Justice Loughlin's decision, but the Appellate Division agreed
with Justice Loughlin, holding that the "determination of a zoning board regarding the
continuation of a preexisting nonconforming use must be sustained if it is rational and is
not illegal or an abuse of discretion, even if the reviewing court would have reached a
different result" and that the Board's determination met those criteria. (Exhibit E). With
respect to this Board's condition of requiring either an abandonment of or variance for the
marina, the Appellate Division specifically held as follows:
a zoning board may impose conditions when granting a
variance, as long as the conditions are reasonable and are
directly related to the real estate involved, without regard to
the person who owns or occupies it, and to the underlying
purpose of the zoning code... Based on our review of the
record, the determination of the respondent Zoning Board of
Appeals of the Town of Southold was rational and was not
illegal or an abuse of discretion, and the condition imposed was
reasonable and directly related to the use of the land and the
underlying purpose of the zoning code.
ESSeKS, HefTeR & ANGEL, LLP
COUNSELORS AT Law
Zoning Board of Appeals
Page 5 of 11
In short, the decisions of this Board and the courts (Exhibits C, D, and E) both
upheld the legality of the Association's docks and gave the Zupas permission to construct a
home on the 580 Basin Road Property, so long as they sought a variance to co-exist with
the Association's docks.
Paradise Point Association v. Mary S. Zupa ("Zupa II"):
Association's Action to Enjoining Zupa From Interfering
With the Association's Property Rights
Shortly after this Board issued its decision of August 2, 2004, the Supreme Court
also resolved another action against the Zupas, entitled Paradise Point Association v. Mary
S. Zupa (referred to hereinafter as "Zupa II"). That action had been commenced by the
Association after the Zupas' improperly blocked the Association from access to its property
interests in the 580 Basin Road Property.
Zupa II resulted in a Decision in favor of the Association by then Supreme Court,
Suffolk County (now Appellate Division, First Department) Justice James M. Catterson,
dated October 27, 2004. That decision was unanimously upheld by a panel of the
Appellate Division, Second Department 22 A.D.3d 818, 803 N.Y.S.2d 190 (2d Dep't
2005). And the New York Court of Appeals denied the Zupas request for permission to
appeal to that court.
Justice Catterson's decision includes a recitation of many of the key facts related to
the ongoing dispute between Zupas and the Association. I am attaching a copy of the
October 27, 2004 decision as Exhibit F hereto.
As explained in that decision, Zupa II involved not only the 1989 deed to the
Association referenced above, but also the Association's prescriptive claim to a private
roadway that the Association used on the 580 Basin Road Property for approximately forty
years as a turnaround and as a parking area for the docks, Basin, and jetty. After the
Zupas (who had been living in the adjacent 365 Basin Road Property since 1998) acquired
the burdened 580 Basin Road Property in 2002, they erected a fence to block the
Association and its members from using the private roadway that had been used since
1961.
The Association's claims were tried before the Hon. James M. Catterson over a
five-day trial.
ESSeKS, H£fTER & ANgeL, LLP
COUNSELORS At LAW
Zoning Board of Appeals
Page 6 of 11
Justice Catterson, after hearing all the testimony, issued the October 27, 2004
decision and judgment, which awarded the Association all of the relief it requested.
Specifically, Jtistice Catterson granted the Association a judgment (1) declaring the validity
of the Association's deeded easement on the 580 Basin Road Property; (2) declaring that
the Association had acquired a prescriptive easement over the private roadway on the
property; (3) barring Mary Zupa from all claims to the jetty extending from the property;
and (4) enjoining Mary Zupa from interfering with the Association's use of the deeded
easement area, roadway, and jetty.
The Appellate Division, Second Department upheld all of those findings and
conclusions in its Decision & Order dated October 31, 2005. See Paradise Point
Association, Inc. v Mary S. Zupa, supra. 22 A.D.3d 818. (See Exhibit G). The Appellate
Division denied the Zupas' motion for re-argument on January 6, 2006. (See Exhibit H).
The Court of Appeals refused to consider the Zupas' appeal of the Appellate Division's
decision. (See Exhibit I).
The Zupas refused to accept the findings of the courts in Zupa II, and their defiance
of the decisions actually resulted in a judgment of contempt against Mary Zupa, sentencing
her to be incarcerated if she did not purge her contempt. The original decision by Justice
Catterson (which was upheld on appeal) had directed the Zupas to remove the fence that
blocked the Association from its access to the roadway and also enjoined the Zupas from
interfering with the Association's property rights. The Zupas refused to remove the fence
and continued to maintain intimidating signs on the property threatening the Association
and its agents, thereby forcing the Association to make an application of contempt. The
matter was referred to the Hon. Mary M. Werner, who held a fact hearing and then issued
her order dated June 8, 2006 (Exhibit J). That order found Mary Zupa in willful contempt
and sentenced her to ten days incarceration in the Suffolk County Correctional Facility,
though the execution of sentence was stayed for twenty-one days to give her the
opportunity to purge herself of the contempt by removing the fence and intimidating signs.
Mrs. Zupa's attempt to obtain a stay of that decision from the Appellate Division was
denied. (Exhibit K). Finally, after four years, the Zupas removed the fence they erected
in 2002 in order to avoid Mrs. Zupa's incarceration.
Victor J. Zupa & Mary S. Zupa v. Paradise Point Association, et al ("Zupa III"):
Zupa's Action to Challenge Association's Docks on "Riparian Rights" Theory
Also shortly after this Board's prior decision, on September 10, 2004, the Zupas
commenced an action against the Association (as well as against the Southold Town
HEfTER & ANGEL, LLP
COUNSelORS AT LAW
Zoning Board of Appeals
Page 7 of 11
Trustees and State of New York), raising claims regarding their alleged riparian rights of
access to navigable waters in the Basin. This action is entitled Victor J. Zu£a and Mary S.
Zupa v. Paradise Point Association, Inc., Board of Trustees of the Town of Southold, and
The State of New York, Index No. 04-22180, and is pending before the Honorable Peter
Fox Cohalan.
The riparian rights action has not been conclusively resolved at this time, but it has
generated orders against the Zupas by both the Supreme Court and Appellate Division.
First, the Hon. Peter Fox Cohalan issued an order, dated September 29, 2005, denying the
Zupas' motion for summary judgment (Exhibit L), which was affirmed by the Appellate
Division on July 11, 2006. (Exhibit M). As explained in Justice Cohalan's order, the
Zupas in that case are claiming title to a portion of the basin in front of their 365 Basin
Road Property and are arguing that the Association's docks interfere with their riparian
rights. Justice Cohalan found that the Zupas were "not entitled to exclusive ownership of a
proportionate area of the Basin and have introduced no evidence that the defendant
Association's use is unreasonable." That finding was based on, among other things, the
facts that "the Association dock was in existence well before plaintiffs purchased their
property" and that the Zupas had "constructed a dock of their own in 1998 with knowledge
that they were restricted by the Town Trustees in size and proximity to their bulkhead in
order to provide reasonable access to the Association members at its marina and dock."
Justice Cohalan further opined that, in light of the covenants and restrictions in the Zupas'
own chain of title contradicting their claims, they had not even made a prima facie showing
of entitlement to summary judgment.
Mary S. Zupa and Victor J. Zupa v. The Board of Trustees of the Town of SouthoM and
Paradise Point Association, Inc. ("Zupa IV"):
Zupa's Proceeding to Challenge Association's Dock Permits
In another proceeding entitled Mary S. Zupa and Victor J. Zupa v. The Board of
Trustees of the Town of Southold and Paradise Point Association, Inc., Suffolk Co. Index
No. 06-02080 ("Zupa IV"), the Zupas unsuccessfully challenged two decisions by the
Board of Trustees of the Town of Southold approving requests by the Association to
reconstruct the docks, a project which would result in a smaller, reconfigured marina.
The application made to the Board of Trustees originally proposed to reconstruct the
docks "in kind," meaning that they would be reconstructed in their present configuration.
The Zupas objected to that application, complaining that the current dock configuration
interfered with their ability to access navigable waters from their 365 Basin Road Property.
ESSEK$, HeFTER & ANgel, LLP
COUNSELORS AT LAW
Zoning Board of Appeals
Page 8 of 11
The Board of Trustees, taking the Zupas' objections into account, approved the
reconstruction but only on the condition that the docks be reconfigured. (Exhibit N). The
reconfiguration would result in a more compressed dock facility that would not extend as
far into the Basin and would be relocated further away from the Zupas' 365 Basin Road
Property.
The Zupas apparently were not satisfied with the reconfiguration (which would
work to their benefit), so they brought an Article 78 proceeding against the Board of
Trustees and the Association.
That proceeding was submitted to another judge, the Honorable Edward D. Burke,
who dismissed the proceeding in a decision dated October 11, 2006. A copy of that
decision is annexed hereto as Exhibit O. Justice Burke found the Trustees' decision to be
proper in all respects. In fact, Justice Burke explained how the reconfigured docks are
superior to the pre-existing docks:
In reviewing the application the Board requested respondent
Paradise Point to offer various alternatives to its original
proposal in order to allow the existing dock to better conform
with the regulations for newly constructed docks. As a result
the proposal for respondent Paradise Point's reconstructed
dock which was ultimately approved by respondent Board
provides for a single, smaller dock to be constructed in a
configuration which is less intrusive upon [Zupa's] property, in
particular, and the Basin, in general. Moreover, two of the
three pre-existing docks are eliminated in the proposal
approved by the Board. Under these circumstances, the
Board's determination to grant respondent Paradise Point's
application for a wetlands permit was supported by the
substantial evidence, had a rational basis and was not arbitrary
and capricious.
Zoning Board's 2006 Interpretation On Referral From Trustees
More recently, this Board issued another decision related to the Zupas' 580 Basin
Road Property and the Association's docks.
HEr?er & ANGel, LLP
COUNSELORS At LAW
Zoning Board of Appeals
Page 9 of 11
As a result of the Zupas' argument that the Trustees-mandated reconfiguration of
the docks would not be permitted under former section 100-241 (now Section 280-121) of
the zoning code, the Trustees referred to this Board a question of town-wide interpretation
of that zoning code provision in order to answer the following question: "Where a legal
nonconforming, pre-existing dock/marina use is issued a wetlands permit that requires
docks to be relocated in the same general area and reduced both in size and number, would
compliance with those conditions cause the docks/marina to lose their legal nonconforming
status under section 100-2417"
This Board held a hearing on that question and issued a determination, dated
September 14, 2006 (Exhibit P), which found that the reconfiguration would not violate
section 280-121A.
The Zupas have since challenged this Board's September 14, 2006 decision in a
proceeding entitled, Mary S. Zupa and Victor J. Zupa v. Zoning Board of Appeals of the
Town of Southold, The Board of Trustees of the Town of SouthoM and Paradise Point
Association, Inc., Suffolk County Index No. 06-29166 ("Zupa V"). That proceeding is not
yet decided.
The Zupas' Current Application
At the same time the Zupas are challenging this Board's September 14, 2006
decision, they are now apparently claiming that the September 14, 2006 somehow nullifies
this Board's earlier August 2, 2004 decision and therefore opens the door to them obtaining
a building permit without complying with the condition of the August 2, 2004 decision.
Respectfully, the Zupas' argument is frivolous. Nowhere in this Board's generic,
town-wide interpretation dated September 14, 2006 did this Board suggest -~ even
implicitly -- that it was purporting to nullify its prior decision. Nor does anything in the
decision contradict the prior decision, as the Zupas appear to suggest. On the contrary,
this Board's prior decision found the Association's docks to be a legal, nonconforming use
under zoning, and the September 14, 2006 decision began with the assumption that the
docks were a legal, nonconforming use under zoning. Any argument that the September
14, 2006 decision "nullifies" or changes the original August 2, 2004 decision is frivolous.
E$$EKS, HefTeR & ANgel, LLP
COUNSELORS AT Law
Zoning Board of Appeals
Page 10 of 11
Res Judicata
As a pure matter of law, the Zupas' application must be rejected based on this
Board's prior decision, which was upheld by the Courts.
A zoning board's decision is entitled to "res judicata" and "collateral estoppel"
effect, which precludes applicants from making successive applications where the zoning
board had previously denied applications for the same or substantially similar relief. See,
e.g., Timm v. Van Buskirk, 17 A.D.3d 686, 793 N.Y.S.2d 520 (2d Dep't 2005); Kam Lee
v. Zoning Bd. of Appeals, 1 A.D.3d 600, 768 N.Y.S.2d 26 (2d Dep't 2003); Freddolino v.
Village of Warwick Zoning Bd. of Appeals, 192 A.D.2d 839, 596 N.Y.S.2d 490 (2d Dep't
1993); Crandell v Wigle, 148 A.D.2d 943, 539 N.Y.S.2d 184 (4th Dep't 1989); Kennedy
v. Zoning Bd. of Appeals, 145 A.D.2d 490, 535 N.Y.S.2d 638 (2d Dep't 1988); Jensen v.
Zoning Bd. of Appeals, 130 A.D.2d 549, 515 N.Y.S.2d 283 (2d Dep't 1987). These
doctrines also preclude a zoning board from making a different interpretation on the same
issue with respect to the same applicant in a subsequent application. See Waylonis v.
Baum, 281 A.D.2d 636, 723 N.Y.S.2d 55 (2d Dep't 2001).
The August 2, 2004 decision on the Zupas' prior application is controlling. The
only thing that has "changed" in the intervening years between the August 2, 2004 decision
and the current application is that the Courts have ruled against the Zupas a number of
times and have conclusively established the Association's rights with respect to the 580
Basin Road Property. Since the Zupas are seeking the identical relief here that they sought
in 2004 -- i.e., the same building permit based on the same plans -- the Board's 2004
decision precludes the current application from even being considered.
Lack of Jurisdiction
In addition to the bar of successive applications to this Board, the Board also lacks
jurisdiction over this appeal because there is no "appealable" decision.
Yesterday, the New York Court of Appeals issued a decision in which it explained
that a zoning board's jurisdiction is limited by the State law requirement that there be a
new determination of a building inspector before the Zoning Board has jurisdiction to
consider an issue. See Palm Management v. Goldstein, 2007 NY Slip Op 2589 (N.Y.
Court of Appeals, March 27, 2007). In that case, the building inspector had issued a new
certificate of occupancy repeating some findings made in prior certificates of occupancy,
and the zoning board incorrectly treated that as a "new determination." The Court of
ESSeK$, HEFTER & ANGEL, LLP
COUNSELORS AT LAW
Zoning Board of Appeals
Pagellofll
Appeals annulled the zoning board's action, holding that the mere repetition of a prior
decision was not a new determination that would give rise to the zoning board's
jurisdiction.
If anything, the circumstances here are more egregious than in Palm Management,
since the building inspector here did not issue any determination at all for the Zupas to
appeal. In other words, the Zupas are trying to appeal a non-decision. If the zoning board
lacked jurisdiction in Palm Management to consider an actual determination simply because
there was nothing "new" in that actual determination, then this Board cannot have
jurisdiction to consider the Building Inspector's non-decision.
The Board should therefore reject the Zupas' application as a matter of law.
cc: Kieran Corcoran, Esq. (ZBA counsel)
36a
Exhibit B- Plaintiff's Deed Recorded February 24, 1989 [Pages 36a-40al
.0S04
T~ and no/100 ($10.90) ~- - - ' ~
~ / ~ Ro~, ~an~ ~* arim~ Lane, ca~l, ~as~n. a~ Dr~n Xocate~ ~- ~
~/~0~ ~ap o~ s~c~ion o.~, pava~.- ~o~n~ a~ ~a~e~," and :~.~ ~- ~ ~
the foll~ng three course~ a~ dta~n~s~ i) NO~ 85 degrees 30
- ~nuues WuSL, 90.00 feet~ 2) South 4 d~ree~ 30 ~t~ Wes~ 32~,00
38a
G& ~ K; l 1~2 nj
40a
'STATE OF ~ ¥01tI~ ss.:
I,~W .... o~b~g a ~~r~) DO ~ ~I
of N~ Yo~k m ~ ~r ~d ~ (~a ~
........ ~,.tn Set ~ ~~dCO~
........................................... ~~~...~; .....................
FannNo. 104
. :~ 52a
Exhibit G-Third Determination of *me ZBA,
Rendered August 2, 2004 [Pages 52a - 58a]
FIND/bi,OS DF FACT
In.s~o~anm ~ ~ Mmy.~k 20~, Supreme Cau~ O~ion 0~ l~e Hon. James
~e~ J~U~ M tho N~ Y0~ ~ SUpreme Cou~ ~e ~ hereby me~s the
Ma~
The ~ning.~ '~ A~eaJs halU a public heafipg'on ~b ~n on Mash 20,
~. Ju~e 5, ~, July 24, 20~, ~d ~gust 2% 2003,~,a[ whi~
~ce ~m pm~. ~d upon all tha .~'mony;.
ins~e~ efta p~, ~ ~h~ evi~nm, ~e Zon~g~B~rd~fin~s ths.~ll~ng
d~e~ 0~ 30, 2~2 ~d aEe~tiveiy s~ vafisnoe under ~o~ ~0~4(B) and
1O0-~ ~ the Tewn ~aa to ~m~'~n~n of a .single fa~ly dwellln
2. The appli~ ~ ~ d~appm~. ~.~e Building ~ on the grounds
~ 1)~n~on ~ a ei~g~ fatuity dwelling'on a nmn~g 75,687
53a
~tque ~ and Nmu~ hem' would. ~nt~ the~nt,of.'~ a~ a~ varianm
~ ~e ~= ~ ~a pmpe~ ~s b~ an~ ~nu.;. ~ ~e used in
54a
~ ~ Nn, ~,en. M, 2upa
CTM Par=et I~:
applicant r. laiming Itmt ~ maflna tree is 'Illegal", The Bgan:l I~ a='vtnecl that the ~lm was
~tl~mm~ ~ thn Supreme C~u~t un pn~eduml ~anding grounds ~nly.and-not on the
unciarly~ mer~
11. The marina !s ptinoi~lly u~'liznd by the ~plt~an~'s nelghbom, manli~r~ of the
u~ ~ ~ ~ ~n~
14..U~ ~ I~1(~} ~ ~ T~ ~, miB pm~d ~ange m a
~n~ng ~ ~n only ~r ~ e~er ~e ~n~i~ use is a~
~ey, a ~n~ ~ aoug~ ~ pe~ ~ no~ing uae ~ ~n~ ~ng w~h
=~ing u~. The ~ ~ ~ 1~1(~) ~= ~ ~
m~g uae, an~i~ In ~e ~. ~ t~ mmmW ~i~ing,
~ng ~e ~ au~ pmm~s ~11 no lo~ ~ ~d unla~ a
no i=ng~ ~a~ u~s a ~ I~ groined ~l~g it m
~er ~ ~e, pm~ o~s a~=~n~s ~ ~n~o~ing u~ on E and ~uld e~ar
~ da~ ~ u~ or app~ ~r a ~n~ under 8e~n 10~241
remain ~ a ~i~ ~ ~ e~ed ~ p~y, Hem, ~even ~e n~ing
55a
~ontemlalated in 8ec~on 100-241(0)
~n~u~~
17. ~'~ p~ ~ n~ ~y
b. ~ g~t ~"~da~ ~ n~ ~uM an und~JmbJe ~ange ~ ~e
~m~ d the ~h~ bemuse
cl. The benetit go~Jght by the appllaant ~annot ~ aohle~ by a~er
f~le ~ other ~an anam; ve~n~. In o~r~ ~n~a ~ouse ~n t~e ~e~.
· , app~nt ~ms, v~
~ ~e ~ a~ ~ ~ phial or en~mnma~ mndWon8 in ~e nagh~.
Depart ~ ~1 ~n~on and the T~n Tms~. The ~1 is ~uat~
Vine ~ ~e a~ 'A~s: Mem~ OINa (Ch~oman}~ :G~hfln~r, ~d Toxin.
R~H D;OL~.~AIRWO~
R~ D. Ol{v~. Ok&lrwom~z
· . C,m~ ~. ~
hmm Dhlzio, ~.
7.ONING BOA.g,D Ol~ al'l'il, AJ~
TOWN OF $OL~'~OLD
Sep. 19 ~ E~3:431:1'1 P1
FINDINGS, DEUBEI~'I1ON$, AND DETERMINATION MEETING DATE:.
~ File ~ 5g14 * BO~F TOWN ~E~,
T~I~ ~ ~ ~1~ ~ ~ ~q4~ (~ 1~241)
i~ ~ a ~s pe~ ~ mq~ d~ks
a~ and ~ ~ ~ s~e and num~, ~u~ ~ ~ ~ ~{~
I ON'. T~ ~ing ~ ~ ~le ~ v~ted t~ p~ under
~d~ ~ ~ll a~l~on and de~l~ ~a~ ~ ~i~ fa~ ~r ~e ~ II
~ ~a ~'s L~ ~ ~o~, ~o~ ~ ~.
DA~ DP ~ H~I~G: The ~
,~ll~n ~ ~ ~, 2~, e~ ~ ~ ~ and ~1 ~n~ w~
~ fifl~ ~ ~ fa~ ~ ~ ~e and ml~
~e ~1~ ~ ~ ~els r~ an a~p{l~6~ f~ ~ ~ d Tmste~
~uant ~ W T~ ~e 6e~lo~ 1~I(D) [~ ~n 28~46(D)~ ~ an
~E ~1~8' I~SU~E ~ PERM.S FOR ~ ~ES N~ REQUIRE
BUILDIN~ PER~ ~. ~ A ~LT, ~E~ 18 NO MEC~ISM FO~ THE
~ILDIN~ IN~E~OR ~ A~ ~ND ~US NO A~ RIG~ ~ ~E ~.
TH~, AN ~PLI~ ~S NO P~CEDURE TO OBTNN T~ A~ TO
THE ~E~ION B~OW T~T ~E ~U~ES BEEI~E Wl~ ~CUR F~M
~IME ?O
WHERE A LEGAL NONCONFORMING, PRE-EXIS'rINO DOCK/MARINA UaE
la~JED A WETLAN~ PERMIT THAT REQUIRES DOCKS TO BE RELOCATED
IN THE ,~IE GENERAL AP. EA AND REDUCED BOTH IN SlZ~ AN[:) NUMBER,
WOULD COMI=LJANCE WITH THO.~i CONDITIONS CAUSE THE
DOCK~MARINA TO LOSE THEIR I.EGAL NONCONFORMING STATUS UNDER
SECTION 'I00-LMI ."
F~X HO. : 631-078 ~'-55~1 Sep. 19 ~ ~:43AM
the Beard ~ TJu~t~lm dmt~l M~y 12, 2006 from mi attorney8 for the Pamrlise pol~
Tile Z~nlpg Boers of Appaa~ hek~ & public .",e~ng on July 27, L~Oe at whieh time
written and oral evidence ~re presented. Be~ upon ali teMJmeny, do~umentalJon.
and ~er evidence, tflg Zoning Boerd ma~e$ the f~llOWing cletermiflauon.
JURIgDICI'ION OF Z/3NJ~G BOARD
Section 260,1460 aut~ria~ U,a Zaning Board ~, amo~g oU~er t~inga, 'detem~ne the
meaning ~ any lar~,~n in this ~hapteP "on request of any Town c~k:~r, i~a~ or
agenc),."
FINDINGS OF FA~'T/DETERMINA TION
1. The Town Trustees have requimtgd the,Zoning Board's intarpm',ation of the nam
eonfomlblg Lmm provlsior~ of the C. aade bm;au~ they ha~ luu~d a permit to a non.
~nf~rming boat basin that would require a m~a'lfig~atia~ of the exisdng d~ rather
men allow an in kind repairlreple~emenL The Tn~le~ regard the mee~gum~ion aa
mo~e ~e~Jrablo sln~e it brings the d~ Ir~ greater ¢oafe,-mlty wib~ Trustee
requirements. 1'ne change was instituted at.t~e Trustees' r~quea~t and was not sought
by the e, opacan~
2. ~ 07-28 or the Town Code s~ta Forth the 8tendards for Is~Jmx:e ~ Permits by
the TOW~ Tn,~toee as fOlioWs:
'The .T. msteea~ may adopt · reaolu~on dlnFeting the i~suance ~ a permit to perfo.~n
O~4,11U~ Ipp~iid for t~dy if it dstermlrtea~at such oloeraUons will riot saabstantiaJly:
A, Adversely affe~ Ne ~etlanda of the
B. ~ ~mage ~m e~ ~id~, ~ liRa~n.
C. ~ ~l~a~ In~ ~ ~ ~h ~r ~ ~ ~ T~n.
O, ~e~ a~ ~, ~he~mh ~ ~r ~n~al mad~ ~, mqua~
~ a~ ~ or ~e ~mi h~ ~.
F. ~e~ aff~ ~v~n ~ ~1 We~ or ~ ~ ~w of
T~.
Q. ~a~e ~e ~e ~ a~ ~annel ~ ~a ~N~ ~m~t ~ flow ~ any
w~.
~T~.
J. ~w~[Y ~ ~ a~be~ vai~e ~ ~ ~fl~d and ~a~
.N~peal Ne. ~t4 - l~lterlw'etaUa~ (ToWn Tru~lee.)
P,~ 03
8. aeallan 280-121A ~ the Town Cadre proVidM In pe~dnant pa~
e.~Ming ~ the efhmOv~ date of t~s d~apfl~' or au~ by a bui~ling permit
t~ued prl~ ~emt~, mgardle~e af change of title, poese~aie~ or oc. aupanc'y or
fight thlreof, ~ay be c~nued Irgteflflitef¥, except ~ilt such building ar use:
of ~i~ ~naptar, nor shall ~y red.mai eviae~ce of such use be Increased by any
~ ,d,~eJl~.#
~ On rn~ion offered by Ct~rwoman Ohm, ~o~ndad by IVm'nber
RE~OLVED. ~at the re-allgnme,n~ of ~ baeir~n d'a~J~$ as racluired C,y the
Tru~teee does no~ con~ibAe a che~ge that would be prohibited under Section
Vote af ~e Board: Ayes: Membera O;va (Chalrv~-nim), Goehdnger ~d WeMman.
(~Mm ~o ~ ~ ~ ~t.) ~ ~u~on ~a d~ty ~d (3~).
~ D. Oli~ ~6
A~ for FBIng
7a
Decision of Loughlin, J., Dated April 14, 2005 [Pages 7a-14a]
i¥IE M O ltA N'D U M
COURT, SU'E~OLK COUNTY
X
1Vi~2~Y S. ZUPA, :
:
Petition=, :
:
for aju~ p~to Ardcle 78 df, he :
Civil Practic: Law and Kui~s, :
:
Z03i]NG BOARD OP AFEF_hLS O1' TH~ TOV~:
OF SOU'fi/OLD ~nd PAk&DlSE POINT :
A~S0CIATI01~, INC. :
X
LA.R. PA_~T 12
By:. Loushl~
Dat~: April I'~ ,2005
Index No. 04:-19505
Mot. S~m.. # 002 - CDL~P~Tltl
P,s~n Date: 8-31-04
3..djom:n~d: 1-6-05
WI~ B1LESm.~:m. GOP,.DON
& OF. ASA, P.C.
Attomcys fur
13015 Mair~ Road, PO Box 1424
Matlima~ 'KY 11952
31~t ri-i, ~ ~ .S'J.'itlN, LUNDBILKG,
Attorneys for P,z~oadcm Board
456 Gri~ng Avmme, PO Box 389
Riv~ead, ~ 11901
ESx~.z~ l-l~'~.~. & ANGEL
Attm~s f~- Rmpo~E~mt Paradise Point
10B Ea~ Mai~ S~m~t~ PO Box 279
P-,.iverh~d, NY 11901
aa
. Zv~ v ZBA, To, am ef 5outhald
Ind~ No. 04-19605
l~ag~ No. 2
In O~tobez, 2002, pctkioner who purebred the p,
~ ~. ~ ~1~ ~ d~ p~a applioafi~ for
· at ~p~'s ~mt ~e ~ ~ of a ~;,~: H~ c~
Following public hem'bags held on the applicatio~ im March 20, 2003, June 5. 200B,
Inly 24, 2005 and A~guat 21, 200B, ;=spondent Board, in a det='~;,,,6o~, dared September 30,
20~3, denied p=tition=r's applicmio~, vitlumt pre}~.dic= to ~n~wal VlXm the teaolution of two
pl:m~T ac~io~ pmding ~ petitione:
actio~ so-~t a der, larmion that 1~ paralac Peint A.vociation, Inc. possem~cl bo~ a valid ,md
e~ffer~ble easement o~er aha at,oas the subject pa.reel by vi, L~e o~ ~ lg89 ~ and also by
pr~sc~onJ The Assoniahon also aought an injun°ti°~ e~*i"i"~l~is' 7'up~ fr°m imwxreri~ g
operalion ofth~ mmim~ on thc subject
~ The action is entitled Parrdise Poi~.4.s'~clm'/on, Inc. a,~ziar~
filed u~ler Suffolk Cotmty !.udex lqo. 02-22~01.
~ Thc ~ is entitied, ~'K~or Y. Zup'a, Mmy E. ?,upa ami Yam~ Mtller
Poi~t,L~so~ztion, Inc.. and is filed tmd=r Suffolk Cotmly Index No. 02-25843.
~ Thc first Article ?g procccding is a~tifi~dMary $. Zupa.agafn,~ Town of ,~oudmkt
Zo~i~, .~oard of ,4ppeals a~d Par,,dise poi~zl.4ssoc~,~r~, .~c. and is ~ed ~md~r Suffolk ~oonty
lndax No.
Zupa v ZBA, Town of Southold
lnd~ ~%..04-19605
Page 31o. 3
Upon ~,~d, thc ~Board of App~la, in a d~on, datcci D~c~-nher 4, 2003,
aoacludedthat Ms. Zup~'s ~ppeal f, um ~ Buildin§ Ina'pactor's tt~ni.l ofh~r application for a
lmildiagp~n~nlt was barced by the doalzin~ of r~s judicata and collat~al ~mppel as a ~ of
the Board's ~a'mi~tian of aa earlicr appeal bmugl~ by .~,~,'s and Halca lViill~, aa contn~t
v=ndo~ of the subj~-t parcel in 1995. Th~ ]vl'ill~ h~rt st~al~l to th~ Board from t~ Blll'ldillg
Inspc~au's 6cnial ofthoir own X~Clu~st for a buildingpc~nit on tho subjsat paxcel b~cauac to do
so world slinw two lainoipal us~ o~ tho g~p~y (a non ~r~-,.~i,,~ prong ~ and a
I~. Zupa coma~aned a ~ond Artinlc 78 proccc6iag~ ~-h.~nging
dat.~.m,;,,.tion, 'l-~'~.Dccemhcr 4, 2003 and the Court, by ~d~r, clate~l May 6, 2004
that tl~ do=trines of ros judi~.~t, ami Collat~al eatopp~] w~rc~ot applkable sinac Ma. Zupa was
not a party to the 19~$ applicalJrm by th~ l~l~ll~s and the record did not rdl~t thc a.nist~a~ of
in thc ~ b~.'wcan thc issuance of thc Boast's dcmrmlnatian h D~, ~03 ~
a~ ~ To~ Mw ~268 ~ ~ ~d not ~ ~ "~i~ ~ ~ ~ ~
~ oi~t j~ ~ p~f h ~o A~ ~ for ~e ~d ~ D~t
Upon rccimsidcralion of Ma, Z~pa's appeal in ac~ordaanc with lnsllce Cat~rson's
judgment o£May 6, 2004, r~spondent Boa..d i~su~i a ~ ~e~on, ~ted ~ ~ 1004,
' Tho.s~on6 Arti~l~ 78 proa~,,ding ii' aniiIl~ Mary £ Zupa against 2aning ~onrd of
App~ds of th~ Tov, m of $outhold and Paradtss Point Association, Inc. and is ~flcd andar Su/~olk
Co~mty I.~d~,.No. 03-29553.
Zup~ v ZBA, Town of Southo]d
Index No. 04-19605
Page No. 4
p~m~i: io M~. Zupa trpon ~ith~lh~ dis=onfinuance of ~he nouconfom/ng marina as~ of
i~opml'y or h~r arraying, use variance to p~'m/t thc ~nfinuerl usc of lb= prop=ny ~s
co~vac'fion with a r~sidential ~.
On or about A%mmt 24, 2004. petitioner c~mr~.cl the immmt Article 71 Woe~ding
~l~.n~ngiai respondent Btmrd% dotnmdnation, dated August 2, 2004, as irmfimml,
unsaplmrted tU substanlial ovid:nee, arbitmay and capfi~io~ amd an alms~ ot'dis:r~ion.
of appeala, judi-ial r~iew is !im!tzd ~ a~canaiting wl~th~ the aation x~ras illel~l, ~rbiirary and
~'apri~o~, or an alms¢ o/dis~fio~ t~ additi~, a zonhg board% inmrpmation ofita zoning
ardinatw, e is ~ntiflexl W a Iv~az d=al of d~fea~n~% and will no~ be overmrn~ }U a :oust mfl~
~ of$o.~.h~mja'on, 7 AD3d 710, 776 NYS2d g20 [2004]).
It is v~ll s~d ~ the soop~ of judicial
to an ~r.m~on ofwh~h~'it has aratio~s] basis and/s support~l by subs~al evidence
(Ar~' V~z~,~ ~ p ~adI, 21
law (Smith ~ l~om~d of Ai~pazts of the T~n ~t~ 20t ~2d 674, ~9 ~d 912 [1994]).
of Yogin, ~ 8 ~2d 417, 656 ~26 3 B [199~). -'
Tho Co{~ of 'the Town of Soutlmld de. finm a l~gal nonconformi'ag us= as a ~a,', whtther
of a building, sign ~r ~ 6flanrt, or c ombinati~n 0f thesa, l-g~lly ~sting o- the =ff,'ctiw ~
of th= zmaiag ~od~ which do~ ~ot canfonn ~ the pms~n us,, :~iion~ of ih. district ia which
In ils findings thc Boazd spedi=i=ally norad thai k had previmmly ~onelu~6 in &'hying
the 1995 Miller appl/ca'don ~nat th= marina us= of th=property mnsfimlefl a ta't~ting
tla
v ~ Town of Southold
imdax No. 04-196{)5
No. 5
While ~ ~ of relief by a zo.l-S board of apptmls do~s n~ ~ ~ n~ie~.t ~m
~ ~ ~
Bo~d of ~g & Ap~nI.e of ~ T~ of ~ 2~ ~ 8~, 1~ ~ 7~ [1953];
S~ ~o, ~Wnno v S~r, 131 ~ 679, 516 ~ 758,Dgg~, ~ d~ ~A.~ ~ to
~ (~ v Bo~ of ~ & ~ ~ d~ ~ ~ of
B~ ~, 280 ~ 792, 1 I2 ~2d 9~ ~52]). ~e B~ +~"" on~C.~ im ~or
~gApp~ of~ r~ ofSo~p~ 5 ~3d ~9, Wi ~Bid 188 ~0~] ~ d~ 3
~d ~4, 784 ~S2~
I~, 202 ~d ~4,
· e choi~ ~de by ~c ~n~g b~ ~ ~c ~ ~ ~ ~ ~om f~ ~oi~
Whmov~r a nonconforming use afa building or pre-iaea im be~n ...changed to a
codOxming usc, anyrhi,g in tiffs Axt~l~ ~o tho conmey notwithstanding, the non-
eozdo~ u~e of stab building or p~ouxiara ahall no lonl~r bep=mi~d uut~ss a
variance therdor sh~ll haw bc~n gmnt~d by ~e Board of Apl~als.
12a
Zupa v ZBA, Town of 8outbold
Iuclcx No, 04-19605
No. 6
In it~ findings, thc Board acknowledged that the subject ~,,,,y~-ty p~soa~, m~ unusual
~i~'umstance s/ncc thc noncon/iuming ~ is owncd m~d c~ olled by r~spondcnt Assoc/ation
and not thc title owner of thc ~ uy=ty a~t thc two ~rpear ~o bc in .~'~,~.ly opposcd to
~r./stc~cc. N~czthe. less, respondent Board/nm~ the aforemcnficmed s~tion as mandating
'l:h~t petitioner either dis~mtipne the m.~in~ use of mc pmpezty cz ob~ai~ a usc variance
~.~dtting her m~dnta/n two prhdpa] ~ of thc prop~y, that is, a rea/den/iai us~
'usc. T~,,-.,w.h as a ]ooal zoning boerd ~s uutrosted 'wi~ a rcesonabio measure ofdisc~ion
the int~pretatlon of i~ .own otdimmces and li~ judicial fimc~on in r~wiow/ng the bozrd's
d~iaion is e ]imfled onc~ a board's determb,6on shouM not be c~st asicl~ unless m,~c ks a
showing of ill~lhy, arMU,;..*ss or an abus~ of discretion (R/chard/hu/ys~n Contr.
.Zoning Boar~ Of ARP~ds of th,, Town ofMeun~ P/.ea~m~ 255AD2d 445, 680 NYS2d
[1998] ~ng Boeld~ v Kays~r, 112 AD2d ?~?. 491 ~ 438 [1985]; ~e~ a/so, Tmi,~t of
H~mt/~oto~ v ~ Tom~ C~I/e~e Rral/~e~y Trun~ 293 AD2~ 467. 740 NYS~d 107
[2002]). The Co~n ~nuz ~n~h,~ thet respondent Boer% cl~m~i~n ~ p~-ficn~r wee
requi~d ~o ob~.h~ a usc vu~.r-~ or a ~iscc~,~e of tim n~-;., usc ofFrop~ty of~e
prop,='cy l~fom a b,,;lm.~ p~...:t ~or thc pmpcr~y r~mld b~ issumi for the comsu u~io~ of a
zcsidcucc on thc pro!o~~ ]md a mtionsJ basis.
P=GLion= aho challenges thc porl/on o~mspo~dent Board's dem0-m;,~on rc~olv/ng
p=tit/on~'s appeal fro~ thc Building Inspector's det~...~;,~lion that a b~//ng l:~,...'t could not
bc ismmd to p.~JG,m= becmme the subjec: parcul is subsmadard in t~,.-
notr~c%~i,,.,d madcr thc zon/ng code by ~ issuencc of an erce retrace. P=tifioncr
th.~ no arm varianr~ is ncc~sa.,-y since t~c m~bjc~t~ con~t~,s a
lot un,er thc Town Co~. In its flnclin~s tl~ Board noted tba~ it did not fim:l the evident- in thc
record .with rcl~rd to thc status ofp~tiGoner~s Parco1 aa a lcgal m,~idential building lot tn
pc'nma~vc a~ thc pcfition=, Thc Bared concluded, how~cr, that auch issue
~ic byth~ pefiti~r'; alternative request for an eme vnri~ce.
Looai zoning boazd~ haw broad &~-c~ .tlon in consid~ing applications fl~r variances
tim jugiciifl function in reviewing such dccisions is a limited c%. ~ouns may set aside a zoning
. de~, mm~lion only wh=c th~ i~co~ revcah m~t thc board acted illc~lly or arbJtmri~, or
ab~e~ its d~, c; ~eet fl n-~e~ sucemnb~ ~ the ~-n~r~l;~i conmmnity ~,sem'~. A
dctm'~.tion of a zoning board should be sustained on judicial r~ricw if it has a rational basis
and is supported by sub~Um~al evidence (Peeoraro 'p .Bo~ of A!~m~ls of t~ l'o~n of.
H~nq,~ad, 2 NY3d 60~, 7~I NYS2d 2~ [2004]), The consideration of'subst~iial cvidencc"
is limitcd to determi~in~ '~h=thcr th~ rcco~ coz~i,~ st~icicnt cvklence to suppor~ fac
rationality of thc ['l~spondmt's] de:~mation" ($asso v Osgood, 86 NY2d 374, 533 NYS2d
13a
Zupa v ZBA~ Town o? Sou~hold
I~d~x No, 04-19605
Page No. 7
d~ ~ b~ ~ (Yo~on v ~ge of ~t~ ~eh, 2~ ~2d335,
663 ~S2d 663 [199~; ~ ~o, ~e v T~n of P~ford Zon~g ~o=~ ~A~, 306
~2d 898, 7~ ~S2d 7t4 ~O~];~a v B~, ~00 ~ 665, 75~
o~ a ~ on a lot ~ ~ 1~ ~ ~ re~ 80,0~ ~ f~t lot ~
p~t.
Th~ Corot conclud~ that petificam~ has misconstrued respom:l~ Bx~rd:s
7m its decision, it~ Board stat~l, '~V30LVED, ...the Board grants the area varisr~= sought'by
th~ applicant to p~mit consu~ciion of a sinElm fsmily honm o~ k'ss that Isis]
80,000 SClUm~ fe~t with ~ co~plia~c~ with all smba~k nnlalr ~i~ on oondifio~ how~,
thax no boilding permit be issued until the nonconfur,,,ing malina us~is r~mnved or a ['aS"]
vax*imco ia g~gd to permit th~ cantinu~ us~ in conjun~on with a residemial use. Thua, thc .
condilion d~'ly has i~ I~m~is in thc Board's d~nial of imitioner'; aggca~ of the Building
luspcct~' s rc~x~al to issue petitioner a building p--, ~-Mt on lh~ basis thnt- t~e pI'opo~d
constitutes a knp,~mism'blc s~cond u..~ of thc propertY. The oo~diiien'does not relate W thc re'ca
varia~ which is ctimmzd solely to the dimensional inadequacic~ ofpetitian~'s parcel.
restriction is thus aot au inappropri~ ~oadiflon imposed upon thc grant of an area
rather it is a con~afion cd the cod~ restriotions upon the use of the property.
Zupa v ZBA, Town o£Southold
tm dc~x No. 04-19605
?agt~ No. 8
Under:the ~rcrnrn~'~, th~Bom'd'a dm~m~m~tio,~ nmm be uph~lcl a~ it ia rational and
g7 NY2t1344, 639 NYS2d 302 [1996] r~h~ati~g d~ g7 NY2d 1056, 644 NY~d 14g).
Accordingly, th~ p~ifio,~ is dmi~d ~ lh~ proof-ding is cllm4ssefl.
$¢~ ~t gn Noti~.
Matter ofZupa v Zoning Bal. of Appeals of Town of Southold (2006 NYslipop 05648) Page 1 of 2
Matter of Zupa v Zoning Bd. of Appeals of Town of Southoid
2006 NYSlipOp 05648
July 11, 2006
Appellate Division, Second DeparUaent
Published by New York State Law Reporting Bureau pursuant to Judiciary Law
§ 431.
As corrected through Wednesday, September 20, 2006
In the Matter of Mary S. Zupa, Appellant,
V
Zoning Board of Appeals of Town of Southold et al., Respondents.
--[*il
In a proceeding pursnan~t to CPLR article 78 to review a deteimination of the
respondent Zoning Board of Appeals of the Town of Southold dated August 2, 2004, which,
inter alia, granted the petitioners' application for an area variance to permit construction of a
single-family home on the condition that no building permit be issued until a nonconforming
marina use is discontinued or a variance is granted permitting the marina use in conjunction
with the residantial use, the petitioner appeals from a judgment of the Supreme Court,
Suffolk County (Loughlin, J.), entered May 26, 2005, which denied the petition, confnmaed
the determination, and dismissed the proceeding.
Ordered that the judgment is affirmed, with one bill of costs.
When reviewing a determination ora zoning board, a court is limited to determining
whether the zoning board's action is illegal, arbitrary, or an abuse of discretion (see Matter
oflfrah v Utschig, 98 NY2d 304, 308 [2002]). The determination ofa zomg board
regarding the continuation of a preexisting nonconforming use must be sustained if it is
rational and is not illegal or an abuse of [*2]discretion, even if the reviewing court would
have reached a different result (see Matter of P.M.S. Assets v Zoning Bd. of Appeals of Vil.
of Pleasantville, 98 NY2d 683, 685 [2002]). Moreover, a zoning board may impose
conditions when granting a variance, as long as the conditions are reasonable and are
directly related to the real estate involved, without regard to the person who owns or
h~'~.ltv~'w ermrt~ ~t~t~ nv.n.~/re, nnrter/3d~erie.q/2006/2006 0564g.hlm i0/12/2006
Matter of Zupa v' Zoniag Bd. of Appeals of Town of Southold (2006 NYSlipOp 05648) /~age 2 ~of2
occupies it, and to the underlying purpose of the zoning code (see Matter of St. Onge v
Donovan, 71 NY2d 507, 515 [ 1988]; Matter of Finger v Levenson, 163 AD2d 477 [ 1990]).
Based on our review of the record, the determination of the respondent Zoning Board of
Appeals of the Town of Southold was rational and was not illegal or an abuse of discretion,
and the condition imposed was reasonable and directly related to the use of the land and the
underlying purpose of the zoning code. Accordingly, the Supreme Court properly denied the
petition, confirmed the determination, and dismissed the proceeding.
We do not pass on the issue of the legality of a certain nonconforming marina, the
subject of which is being litigated in an action entitled Zupa v Paradise Point Assn., pending
in the Supreme Court, Suffolk County, under index No. 25843/02. Miller, J.P., Adams,
Goldstein and Covello, JJ., concur.
htm:l/www.courts.smte.nv.us/reoorter/3dseries/2006/2006_O5648.htm 10/12/2006
3a
Decimon and Judgment of Cattereon, J., Entered
October 29, 2004, Appealed From [Pages 3a - 9al
IvI~MOKANDUM DRCISION
~TDE~ NO. 22401/02
SUPK]BIM~ COUP. T- STATE OF NEW YORK
IAS PART X/LK'v~II ~ COUNTY
' ~ERESENT:
Honorsble JAMES M. CATTI~;ON
MOTION NO. Memorandum Trial
D~sion
PARADISE POINT ASSOCIATION, INC.,
MARY s. ZUPA,
x
x
PLAINTIFF'S ATTORNEy
214 Roanoke Av~
P.O. Bo:/757
.Rive~a~d, N.y. 11901
DEFENDANT,S ATTORNEY
13015 M,~ Road
~.0. B~ 1424
~t~ N.Y. 11~52
UPON DUE DI~r.mERATiON AND CONSIDERATION BY THE COUKT of th~
foregoing, and the bench trial hold in thin Court on Febnmry 11, 2004-February 26, 2004 tho trial
is docided ~s followm ~
ORDERED that it is declared th,,* the phintiffposseases a valid and existing easement
over and across the z~bjeet premises owned by the defendant as described in the 1989 deed to
· plaintiff, and the defendant is enjoined bom interfering with the plaintiff's me end possession of
the easement; it is further
ORDERED that it is declared that phintiffhas a valid and existing prescriptive easement
over and across the private roadway on the subject promises owned by the defendant, rnn,~ng
/rom the wesm-n termimm of Basin Road in a general northwest~ty direction to the plaintiff's
deeded e~ement area and to the jetty located at the end ofth~ deeded easement area which
promades into Southold Bay;, and it is further
ORDF./~D that th~ defend-hr must remove the £enoe blo-.lri~g ~e m~ to ~t
pfiva{e ~Y
c~t fi~
O~E~D ~t ~ def~t md h~ ~ ~ b~ ~m ~ o]~im to ~ ~c or
~t~ ~J~
· ' "
A b~
fono
~soci~ ~e 1951 for ~ b~t of~e p~ilse Po~t ~.,,~mi~. M~b~ of~
Po~ To~ of S~ol~ C~ of S~o~.
Po~t ~
~ob~ 13, 1989,
d~f~
~ ofB~ ~ (~ ~e ~ bo~e of ~c d~i'~t's ~), i~g ~ ~o~li~e
of ~ bo~ ofw~
w~ bo~
(~o ~o~
~ ~ ~out 1970, a je~ ~ ~ Fio~ ~to To~ ~or a ~ ~ of w~t
is now ~ ~sociafi~'s
Po~t Co~
1989, by~e ~ove
~i~t~in~ by ~ ~soc~on ~cl~vely.
'D~f~n~,~t rccdved titl~ by deed f~n Cban~ D. ~, ~ Si~ning ~a ~
of~c O~ H~b=~ ~mt~t ofT~ A~e~t ~ ~ of A~ 16, 1999,
d~ w~ ~d~ ~ ~e O~ce of~ Cl=k of S~o~ Co~ ~ A~ 23, 2002. ~
d=f~t ~d h= h~b~ how~=, b=c~ ~ m ~= P~c Point
h~= m~b~ of ~ ~soci~on ~ 199~.
~e ~tors w~ co~d ~e e~t w~e ~e ~edec~so~ ~ ~e to ~e
who co~ed ~ p~ ovg w~ ~e ~ i~ loc~ to ~ def~t.
2
Sa
lot was created by subdivision as shown on a subdivision map filed in 1963
:, Paradise Point Corporation. All of the. principals of the Paradise Point
· qince prior to 1961, a _p!ivate roadwayhas
ill ilf~le !nm~i~ from the w~t~Ill t~a ,',,triLls of Basin Road in a general
a to the dcaded easement area and to thc j=tty located at th~ end of that
2002 when the defendant arected a fence across the roadway,
i this private roadway for vehicular and pedeslxian access to
__ 8outhold Bay, and the jetty. The A~sociation used the private roadwayin
the use of the Basin, the Canal and the je~, as a turning area
over Basin Road; as access and use by contractors conducting dredging
; and for general x~a~ional pmposas.
1970 to 2002, the Association m,*~t~i,,,,xl and improved the lnivate
, at its sole cost and expense. During the period from at least 1988 to 2002, the
adjacent to the private roadway stml'ing "Paradise Poix~ Private
No Trespassing, Residents Only." In addition, the cost of dred~ng the Basin was
~y thc Association almost e0cclusively for decades. In May of 2002, thc Association scat a
who was a shareholder of Paradise of Southold, Inc., which owned a two
in the property, requesting p~',,,ia.ion to use the roadway for dredging work to
' the Town of Southold's requirements for a dred~ng permit, John Si,ming, while a
'Paradise of Southold. Inc., was the President of thc Association fi~n 1985 to
and in his dual capacity he granted pa, ,,,i.sien to the Association to usc the roadway over
' to facilitate the Association's dredging activities.
In 2002, the defendant obstructed the Association's use of the roadway and prevented
-,access and passage over that private roadway by member~ of the Aasociafio~ This action
The AasociatiOll'S first cause of actioll la to d6t~a ,,,ina the Clalm~ Of the pal~d~s 'with
,ragard to the deeded easement. The defendant argues *h~ the southerly or scawa~d sid~ ofth~
d~-_,ded easement cannot be determln~ by the deed language alone and that the Association has
not proven that the deeded easement bunlens the defcadant's property without a proper metes
and bounds desoripfio~. The Court eradits the testimony of the Aasociation's ~zritncases anti.the.
deed that was submitted into evidence with regard to the deeded cas~aent. What is indispmablc
is that by this emsemcat, the parties to the d~l intended to give the Aasovlat4on "fi'ce ann
unobsmieted access" (via foot traffic) to the Basi~ CanaL bu~rheads, c~ibs, jetties, docks, em.
Also elea~ is the language of the deed in evidence that specified that the southerly boundary of
the easement on the Canal and Basin side is the shoreline and the noxthcrlybotmdary on the
Southolrl Bay side is the ordinay high water mark. The deed did not relate merely to the
southerly shoreline or the northerly ordinary high watermark then existing but to such line
wherever it might thereafter be located. Matter of the CiW of New York [West Tenth ~t.], 267
N.Y. 212, 221 (1935). ffthe defendant's contention were co~reet, then the words in "in a
westerly, nm'thwestcrly and northerly direction along the shore of said Basin and Canal as it
3
winds and tums.., to the or~,ry high water mark of Town Harbor... thence in an essterly
direction along the ordinary high water mark of Town Harbor..." would be surplusage, and the
parties would have nm this 1/ne solely by metes and bonnds, Id. ~'ku~h*. ~uore, contrary to the
defena.-t's ~amen~ no survey was necesasry to further d~fine the easement (as ref~d to in
tho deed) because "physical monum~mts when denominated in a deed shall pr~ail over those
shown on a survey." Id. The deed manifests an intention to grant a right 0fpassage along the
sontherly shoreline wherever located so long as it meets the general direcfiona! sweep of the deed
language to effectuate the purpose for which the easement was created. Lewis v. Yotm~. 92
lq.¥.2d 443,453-454, 682 N.Y..q.2d 657, 663 (1998). Thus, this Court finds that the Association
has a valid and existing easement over and across the subject premises owned by tho def~,nt as
described in the 1989 deed and the defendant is enjoined from interfering with the Association's
use and possession of the easement.
The second cause of action is for a prescriptive easement across the private roadway on
the defen~,nt's p,openy ~,nn{ng from the western temfinus of Basin Rolui in a general
northwesterly direction to the Association's deeded easement ama and to the jetty which
pro~rudes into Southold Bay. The defemrlant ml~fl~ that because the members of the Paradise
Point Corporation and subsequent owns, rs of the defimdant's p~perty we~ all officers of the
Associatio~ no such prescriptive easement could have been created. The defender, however,
cites no support whatsoever for her con~tlon that these individ-.h who wore two hats (as all
officer in the Association ~nd as an owner of the proper~y) effectively precluded the
· Association' s p~'~scriptive easemellt righIs as created by those officers of the Association who
were not also-owners of the det'e~a~t's propeat-y. Indeed, def~a~t's argummat would
necessarily ~esult in a b~.ach of fidneinry du~ to the Association by those officers in the
Association msi~t.l.in~ dual and inconsistent roles. Therefore, the Cou~t fin& defe~d..t's
enntemien unten.hle.
In order to establish a prescriptive ensemcnt, the proponent of the casement must prove
by cles~ and convincing evidence that the'use has been adverse, opm and notorious, continuous
and ~mlnterrupted for the prescriptive period. ~ 251 A.D.2d 449, 674
N.Y.S.2d 409, 410 (2d Dept. 1998). The stamtorypcriod is fifteen years for a use that
COrnm~ll~ prior to 1963 and ten yeas for a use th.t COmm~Eed i~l~r~'d~. City of
Tonaw~nfia v. ,~-lticott Creek ~ea'~own=s Association. tnc..,et at.. 86 A.D.2d 118, 121,449
N.Y.S.2d 116, 119 (4th Dept. 1982). Where the easement bas been shown to be open, notorious,
continuous and ondisputed, it is presumed that tho usc was hostile, mad thc burc~ shi~s to thc
opponent to show that the use was permi,~ive. ~ 251 A.D.2d at 449, 674
N.Y.S.2d at 410. It~ however, the opponent of the easement establiehes tlmt the relationship.
between the user and landowner is one of cooperation and ndghhorly soeornr~odation, the
presumption is lost and the proponent of the easement must show that the use was under el,ir~ of
right and advers~ to the interests ofthe landowner. McNeill v. Shutts. Sr. et al.. 258 A.D.2d 695,
696, 685 N.Y.S.2d 318 (4th Dept. 1999).
Thc Court credit~ the testimony of the Association' s wimesses and that of the defendant's
4
fact witnesses such as John Sinning. All of the fact witnesses testified to their use es well au
their parents' (many of whom were officers in the Aasodation) and children's use of this private
roadway. They used this roadway for recr~tion, to reach the jetty snd watcr~vay where many had
boats or to swim, for approximately forty years all together, from the inc~pfibn of the Association
until the defendant erred a fence in 2002. In particular, thc tealimony of RobOt Scalia
(hereinat~er refon-ed to as "Scalia") demousirated that the Association has met its burden of
proving the cieme~ts of a prescriptive easement. Sc,Ils testified that he became an officer in the
Association in the 1970's until 191/3, and that he was a member before and after that time frame.
He stated that the Association maint~in~A the ~n~i~ roadway in dispute from the end of Basin
Road by snow plowing it and m,ld~ any re'pairs. Moreover, he and many others testified tha~
the Association an'anged and paid3 ~or the Canal to be dredged every one to three years, ~aa that
such dr~§ activ/ty-ti~i~ed the roadway in issue to move the cranes and/or ia'acks to the area
to be dredged which was at the end of this mad. The tracks would use the road to ~meve the
spoils as well. This occtured at least ten to twelve times since 19~I alone, mad stm'ted in the
early 1950's. At no time dung Scalia's memhemh/p in the Assodation did he or anyone ehe to
his knowledge ever ask for permission to use the road. Indeed, all of the witnesses testified that
no penulasion was ever sought from the owner(s) of the property. In fact, Scalia believed, as did
all of the Association' s fact witnesses, that the private roadway in question was "our read," that
he and all the homeowners had a "right of passage over it."
Bven those witnesses who had acquired an interest in the ownership of the property in
issue had never request~l permission to use the road for recreational or d.,-~ging aciivities au
officers of the Aasociation prior to acqui~5 their owncmhip intcre~ Furth~ore, after
acqu~hag an interest in the property, those witnesses who wore two hats did not receive any
requests for permission to use the road and never verbally commllllicated ally permissiOn to
others to use the roadwayprior to 2000, long after the statutory period h~a been fnl611ed.
i~tance, the defend~mt's witness, John Sirmlng (hengn~fl~r refen'ed to as "Sinning"), testified
th.t he was an officer in the Association from 1981 to 1993. He obtained an interest in the
properly (with Bd Boyd, through the creation of Paradise of Southolfl. Inc.) in 191/5, Prior to
191/5, as an officer in the Association, Si~.i~g was Evolved in the dredging process, and he
never ~equested permission to use the roadway in isane from anyone. Ai~ he became a part
owner, he would give permission to hlmselLf acting on beh~l¢ of the Association, to use the
roadway but it-appea~ thai he never commanicalcd that pem~ission to anyone else. While
Sim~i~5 did testify that he hadreceived requests for pra-,i~sion to dredge af~ 1993, no apcdfic
infonusfion was elicited and it zem~i~ ~mclear who hsd made th~ requests and whe~l they we~'e
made. Therefore, the testimony thst the Association used the roadway for decades for various
~Thcre is evidonce that the Paradise Point Corporation may have shared in the costs of
dredging at some time dining the 19fi0'~.
4While it remaln~ unclear whether the Association i~ asserting ause of the roadway ptior
t° 1963, and thus,must show fifleon years to satisfy the statutory period, both p~riofls have been
satisfied bythe testimony at trial.
aa
purposes without ever obtMn~g portaL, sion rem~n~ unmbutted.
Forth~more, the Association's witnesses estsblished ~h~* for many years the Associ~on
(and thc Paradise Point Corporation at some point in the !960's) paid a private serenity fizm to
patrol the entire ar~a, inoluding this roadway, In addition, the Assodafion paid for the
installation of a light on the tun-around portion of this roadway, and installed and mnint=i~ed
"private property" sig~s at the be~aai~g of this private roadway ~om at least 1988.
Based upon the teslimony at trial, the Association hsn established by clear and convincing
evidence that the Association, through its officers and members, has used this roadway for its
benefit for well beyond the necessary ten or fifteen years, that the use was open, notorious, and
continuous (at least seasonAllyifnot constantly). Therefore, a preaam?tion arises that the use
was adveme ;md the burden ~i~/s to the defendant to establish that the use was pm'mid,ye.
RiwLmere Aoartments. Inc. V. Stoneleiv. h Park'wav. Inc.. et al.. 275 A.D.2d 701, 702, 713
N.Y.S.2d 356, 357 (2d Dspt. 2000).
The defendant argues that the use was with permission ~om the inception due to the fact
that the officers of the Pazadise Point Corporation and the subsequent vm'ious owners of the
pmpen'y in issue were all members and officers of the Association. Therefore, the clef;red,mt
contends, the Assodatien does not reap the benefit of the preaumplion and instead must show
sfTirl31a~VC facts to b~r. abllsh that thc tlSC was tlllder a cl~4m of right and advemc'to the imerests of
the landowners, lqot all of the officers of the Aasoclmlon, however, were in the Corpoxaiion and
not all of the officers in the Association held an inten~t in the property burdened by the easement
in question. ~ defendant lass failed to d~:nonstrate that because some officers of the
Association during the many decades over which this easement evolved wore two bats, one as an
officer of the Association and one as an owner of the property, that they somehow deahvyed the
ability of the other officers of the Association during these years to creat~ mad assert pzescriptive
easement d~hts on bob,I/' of the Association in thi~ roadway; especially in the abse~e of any
proo£that p=,,,,ission was communicated to these non-owners/officers of the Association. What
is clear from the testimony of'all the fact witnesses is thst fl'om generation to Muua'ation, no one
thoughi that they n~eded permission to use th~ roadway for any reason- They believed they bad a
clear fight to it, and no permission was ever communicated to these ofiqc~-owne:s of the
property; The only time that.belief seemed to e.h;m~e was. when the vdlness obtained an
ll~qrer ~Omrntlllioatezt pu, uxL~aion tO ally other offiOe~: o£th~ Associatioll o: index1, to anyolle that
used that roadw3y. ~Tor did any owner at anytime lxyto stop those officers and rnemherS of the
Assodation from using the roadway.
In addition, the Association shouldered the burden and expense of maintaining the
roadway for decades. It pairt for snow removal, security, lighting, and used it innumerous times
through its members and officers for recreation and to facilitate the dredging of the waterway.
The fact that the Association ~h~red the coats'of this roadway until approldmately 1970 and after
that exclusively maintained it, establishes that its use was not merely a neighborly
6
accommodation on the par~ of th~ d~fena~t's predecessors in titl~ with thc result that the
pre~rmpti, on of adversity r~r~i~ ~ 142 AJD.2d 552, ~63, $31 N.Y.S.2d 99 (2d
Dept. 1988). Therefore, th{~ Court fi~d~ that the ~socia~io~l h~ sllccecc~d in proving that it has
an existing ~ascm~t over this roadway to be ufi]i~.ed by it through its membc~s for tho purpose
for which th~ Association was crc~d~ thc usc and enjoyment of thc Paradisc Point Community?
Fim~lly, the Court also fin& ttmt the Association has proven its case on its third cause of
action to det~,~,,ine the pm'ties fights to the j ~y. The Association has established its ownership
of the j~cy by the deed in evidence dated 1989 in which the then owners of the jetty clearly
~ntended to and did convey their title to the j ~tty to the Associatin~
The above consfitut~ the decision and judgment of this Com't.
Dated: October 27, 2004
FINAL DISPO,~I'fION
ENTER
J.S.C.
.NON-FINAL:DIsPOm'rtON
their boats, or for any otJaer reereatiousl use.
5The defendant cites to City of Tonawmada v. Ellinott Creek Homeowners Association
Inc., et d., 86 A.D.2d 118, 449 N.Y.S.2d i 16 (4th Dept. 1982) for the proposition that the
Association may not assert prescriptive easement figh*~ on behalf of its membem for their
personal use. That case, however, does not stand for such a proposition and is inapposite as in
that case the Court found that as the Homeowners Association appeared "only in its
reprcsonta~ve capacity and neither own[ed] nor cl~m[ed] a fight to .any interest in the property
on its own babal~ it m~y not asscll a defense or countercblm basect on... proscriptive
easement." In this case, the Association is not asserting prescriptive easement rights as some sort
of a legal representative of its members which it has no legal ability to do; thc Association itself~
as a separate legal entity, is asserting a right to a prescfipQve ease~nent, on its own beh=l¢ Thus,
the Association will own thc ~ght to the easement, not the/ndividual members in their personal
capacity. A~ apract/cal matter, however, thc Assoc/ation has no independent existence. It is
active through its members and only exists, as it appears from its "Constitution," to support it
members usc and enjoyment of the Paradise Point Community. Having such an cascment fight,
'therefore, can only be utqli~xl bymembors of the Association for the same purpose - the
members' use and enjoyment whether it is to dredge the Basin and Canal for the members' use of
7
Paradise Point A~sn., Inc. v Zupa (2005 NYSlipOp 08092) Page 1 of 2
Paradise Point Assn., Inc. v Zupa
2005 NYSlipOp 08092
October 31, 2005
Appellate Division, Second Depm'tment
Published by New York State Law Reportin~ Bureau pursuant to Judiciary Law
§ 431.
Paradise Point Association, Inc., Respondent,
¥
Mary S. Zupa, Appellant.
--[* ]
In an action, inter alia, pursuant to KPAPL article 15, to determine claims to certain
real property, the defendant appeals from (1) a jud~nent of the Supreme Court, Suffolk
County (Catterson, J.), dated October 27, 2004, which, after a nonjury trial, declared that the
plaintiffpossesses an easement over her property as described in a certain deed and enjoined
her from interfering with the plaintiffs "use and possession" of the easement, declared that
the plaintiff has a prescriptive easement over a private roadway on her property and enjoined
her from interfering with the use of the easement, and determined that she is barred from "all
claim to an estate or interest in" a certain jetty protruding from her property into Southold
Bay and enjoined her from interfering with the plaintiffs possession of that jetty, and (2) a
money judgment of the same court dated November 5, 2004, which is in favor of the
plaintiff and against her in the principal sum of $6,936, representing an award of costs and
disbursements in the action/
Ordered that judgement is modified, on the law, by deleting from the first decretal
paragraph thereof the words "and possession"; as so modified, the judgment is affmned; and
it is further, [*2]
Ordered that the money judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondent.
http:ltwww.courtS.state.ny.ustreporter/3dseries/2005/2005_OSO92.hWn 8/24/2006
Paradise Point Assn., Inc. v Zupa_~(2005 NYSlipOp 08092) . Page 2 of 2
With respect to the cause of action for an easement over the defendanfs property as
described in a 1989 deed, the Supreme Court declared that the Paradise Point Association,
Inc. (hereinafter PPA), had a valid and existing deeded easement over the de£endanfs
property and enjoined the defendant from interfering with the PPA's use and possession of
that easement. It is well settled that easement rights derive from use and enjoyment (see Di
Leo v 2~ec~to Holding Corp., 304 NY 505, 511 [1952]). The easement owner gains no right
to possess or occupy the land (id.; see Trustees of Town of Southampton v ~ressup, 162 NY
122 [1900]). Here, the deed was clear that the PPA only gained a limited use and enjoyment
of the servient land. Therefore, the court erred in enjo~niug the defendant from interfering
with the PPA~s possession of the deeded easement.
The Supreme Court correctly declared that the PPA had a prescriptive easement over
the dirt roadway on the defendant's property mad therefore properly enjoined her from
interfering with its use of the road (see Di Leo v_Pec~to Holding Co~., supra at $12;
Frumkin ¥ Chemtop, 251 AD2d 449 [1998]).
The defendant's'rems~n~ng contentions are without merit. Ad,ms, J.P., Luciano, Skelos
and Lifson, J~., concur.
http ://www. courts.state.ny.us/reponer/3dseries/2005/2005_OSO92.htm 8/24/2006
Paradise Point Association, Inc. v Zupa ' Page I of 2
Paradise Point Association, Inc. v Zupa
Motion No: 2004-09780 +1
Slip Opinion No: 2006 NYSiipOp 60325
Decided on January 6, 2006
Appellate DiVision, Second Depaament, Motion Decision
Published by New York State Law Reportin~ Bureau pursuant to Judiciary Law
§431.
This motion is uncorrected and subject to revision before publication in the
Official Reports.
Supreme Court of the State of New York
Appellate Division: Second Judicial Department
M34460
C/si
THOMAS A. ADAMS, J.P.
DANIEL F. LUCIANO
PETER B. SKELOS
ROBERT A. LIFSON, JJ.
2004-09780, 2004-10034
Paradise Point Association, Inc.,
respondent,
v Mary S. Zupa, appellant.
(Index No. 22401/02)
DECISION & ORDER ON MOTION
10/12/2006
Motion by the appellant for leave to reargue appeals from two judgments of the Supreme Court, Suffolk
County, dated October 27, 2004, and November 5, 2004, respectively, which were determined by
decision and order of this court dated October 31, 2005, or, for leave to appeal to the Court of Appeals
from the decision and order of this court.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
http://www.nycourts.gov/reporter/motions/2006/2006_60325.htm
Paradis5 Point :4,ssociation, Inc. v Zupa 'Page 2 of 2
ORDERED that the motion is denied, with $100 costs.
ADAMS, J.P., LUCIA_NO, SKELOS and LIFSON, JJ., concur.
ENTER:
James Edward P~lzer
Clerk of the Court
http://www.ny¢ourts.gov/reporter/motions/2006/2006_60325.htm 10/12/2006
tatt
Court o! ~tpptais
At a session of t~e Court, i. ld
~ppeals ttdl i# the City of
ninth
on t~e ..............................................
May 2006
2-!0 Mo. No. 248
Paradise Point Association, Inc.,
Respondent,
V.
Mary S. Zupa,
Appellant.
A motion for leave to appeal to the Court of Appeals
in the above cause having heretofore been made upon the part
of the appellant herein and papers having been submitted
thereon and due deliberation having been thereupon had, it is
ORDERED, that the said motion be and the same hereby
is denied with one hundred dollars costs and necessary
reproduction disbursements.
Stuart M. Cohen
Clerk of the Court
'~ -'.' · :'," ,~b 1 ~: 24 ! ~317278262
INDEY' NO. 22401-02
PRESENT: HON. MARY M. WERNER
JI. JSTIOE OF THE SUPREME COURT
PARADISE POINT ASSO~IA-TION, INC.,
PA~';E 02
ORIGINAL MOTION DATE: 1/5/06
MARY S, ZUPA,
- against -
Plaintiff(s),
Defendant(s),
MOTION NO. 005, MG
McNULTY-SPIESS, P.C.
Attorneys for Plaintiff
214 Roanoke Avenue
Post Office Box 757
Riverhead, New York 11901
WICKHAM. BRESSLER, GORDON
& GEASA, P.C.
Attorneys for Defendant
By: Eric Bressler, Esq.
13015 Main Road
Post Office Box 1424
Maffltuck, New York 11952
VICTOR j. ZUPA, ESQ.
Attorney for Defendant
4565 Paradise Point Road
Southold, New York 11971
Upon the following papers read on
Supporting Papers 1.5 and this motion: Order to Show Cause and
Exhibits A-F; Answering Affidavits and Supporting Papers 6-
8; decision of the court dated February 9, 2006; and upon proceedings held March 9.
2006 and June 8, 2006; ~t is
ORDERED that the motion (seq. #005) of plaintiff Paradise Point Association,
Inc., brought on by order fo show cause dated December 13, 2005, for an order holding
defendant Mary S. Zupa in contempt of court for willful disobedience of the judgment
dated October 27, 2004-, rendered after a bench tdal (Catterson, j.), which was affirmed
as modttied by the Decision and Order of the AppelJate Division: Second Judicial
Department dated October ,2000, which was further clarified by the Court on March
9, 2006, is granted; it is .
March ORDERED that upon and for reasons stated on the record of proceedings held
9, 2006 and' June 8, 2006, the Court finds that the defendant Mary S. Z. upa J8
guilty of civil and criminal contempt in having wilfully disobeyed the March 9, 2006 order
of the Court; it is
~/1~I20B~ ld:2~ 1~31727B262 MONULTY SPIESS PC PA~ 03
ORDERED. AND ADJUDGED that defendant Mary S. Zupa. is sentenced to ten
(10) days incarceration .in the Suffolk County Correctional Facility, Riverhead, New
York; it.is
ORDERED AND ADJUDGED that this sentence shall be imposed forthwith and
the decision shall be deemed an order and/or warrant of commitment pursuant to and in
accordance'with'Judiciary Law § 772.The Sheriff of any county of'the State of New
York wherein defendant Mary S. Zupa, may be found, be and he or she is hereby
directed to forthwith arrest said Mary S. Zupa without process and to commit her to the
custody of the Sheriff of the County of Suffolk who shall incarcerate her for ten (10)
days in the Suffolk County Correctional Facility located in Riverhead, New York; it is
ORDERED AND ADJUDGED that the execution of this Order is stayed pursuant
to and in accordance with Judiciary Law § 772 for a period of twenty-one (21) days after
personal service of a copy of this Order upon defendant, granting defendant leave and
the opportunity to purge herself of the contempt by removing on or before June 25,
2006 the entire fence and signs as directed by the Court on Mamh 9, 2006 and
acknowledged by defendant on.the record of the proceedings held June 8, 2006; and in
the event defendant, Mary S. Zupal fails to purge herself of the contempt by the time
period set forth herein in this Order, than she shall appear before this Court on June 26,
at 9:30 a.m. (lAS Part 32, Arthur Cromarty Criminal Court Complex, 210 Center Drive,
Rivethead); and in that event the stay of the execution of the sentence imposed shall
be vacated and warrant of COmmitment shall issue forthwith; It is further
ORDERED that counsel for plaintiff shall forthwith serve a copy of this Order
upon defendant, Mary S. Zupa, pursuant to CPLR 306(4 ), 308(2) o'r 308(4), and upon
counsel for defendant, pursuant to CPLR 2103(b) (1) or (3) or CPLR 2103 (b) (2), by
ovemight delivery with no signature required and thereafter file the affidavit(s) of service
with the Clerk of the Court, within five (5) days of the date of said service and also notify
the Court by written communication of same with a copy of the affidavit of service; and
tt is further
ORDERED that the law firm of Mcnulty-Spiess, P,C. shall immediately notif~ the
Court by facsimile transmission to (631) 852-2156 of the compliance of the defendant
with said Orders of the Court.
A person, who is guilty of wilful disobedience of a court's lawful mandate, may be
punished for civil and criminal contempt (see Judiciary Law § 750[A][3][4]; 753[A]). Civil
contempt seeks to vindicate the dghts of a private party to litigation and any penalty for
such contempt is designed to compensate the injured party or to cosine compliance
with'the court's mandate (see, Matter of Deer, of Envtl. Protection of the City of Nc.;.:
York v. Decartment of Envti. Conservation of the State of New Yort~,, 70 N.Y.2d 233,519
N.Y.S.2d 539 [1987]; Matter of McCormack v. Axalrort. 59 N.Y.2d 574, 466 NYS2d 279
Pa~adise Point Assec. t~i~, v, 7,,nc
Index No. 22401-02
[1983]). Conversely, criminat contempt is imposed to preserve the power and integrity
of the judicial process and to compel respect for ~ lawful orders, id. The penalty
imposed for criminal contempt is punitive in 'nature, as Its objective is to deter
disobedience of judicial mandates, id. Both civil and criminal contempt require'a finding
that a lawful order expressing an unequivocal mandate was in effect; that it is
reasonably certain that the order was disobeyed; and that the party charged had
knowledge of that order (see Matter of McCormack v Axelmd, supra).
The Mamh 9, 2006 order of the Court is very clear, specific and set forth in
unambiguous terms. Thus, a prima facle case of criminal contempt has bean
established thereby shifting the burden to defendant to establish good cause for her
defiant noncompliance with this Court's Order. The Court finds that defendant has
failed to establish such good cause. To this Court, this is a clear message of her
continued defiance and refusal to acknowledge the Orders of this Court. Here, there is
clear and convincing evidence that the Court's O~der has been violated and disobeyed
and that the acts of omission in response to ~he Orders of the Court were and are wilful,
intentional and a deliberate attempt to question and defy the authority of'this Court, as
well as, to ignore the mandates of the Court and calculated to interfere with the due
administration and judicial procass of justice (see Judiciary Law § 750[A][3][4]).
Further, plaintiffs calculated disobedience of the lawful mandate of the Court has
impaired and impeded the lawful rights of plaintiff (see Judiciary Law 0 753[A][8]),
Accordingly, plaintiff's motion is granted to the extent noted herein.
This constitutes the Order and Judgment; this Co.u..y~..._
· MARY~VERNEP~, J.~.C. %
Paradise Point A~sO=. Inc, v, ?*m.
Index NO, 22401.02
Paradise Point Association, Inc. v.Z~pa Page
Paradise Point Association, Inc. v Zupa
Motion No: 2006-05752
Slip Opinion No: 2006 NYSIipOp 70895
Decided on June 23, 2006
Appellate Division, Second Department, Motion Decision
Published by New York State Law Reporting Bureau pursuant to Judiciary Law
§ 431.
This motion is uncorrected and is not subject to publication in the Official
Reports.
Supreme Court of the State of New York
Appellate Division: Second Judicial Depax~uaent
M41364
S/si
THOMAS A. ADAMS, J.P.
DANIEL F. LUCIANO
PETER B. SKELOS
ROBERT A. LIFSON, JJ.
2006-05752
Paradise Point Association, Inc.,
respondent,
v Mary Zupa, appellant.
(Index No. 22401-02)
DECISION & ORDER ON MOTION
Motion by Mary Zupa, inter alia, for leave to appeal to this court from an order of the Supreme Court,
Suffolk County, dated June 8, 2006, and to stay enforcement of the order dated June 8, 2006, pending
hearing and determination of the appeal.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
http://www.nycourts.gov/reporter/motions/2006/2006_70895.htm
9/28/2006
Paradise P~int Association, Inc. vZupa Page 2 o~2
ORDERED that the branch of the motion which is for leave to appeal to this court bom the order dated
June 8, 2006, is denied as unnecessary as the order is appealable as of right (see CPLR 5701 [a][2][v]);
and it is further,
ORDERED that the motion is otherwise deaied.
ADAMS, J.P., LUCIA_NO, SKELOS and LIFSON, JJ., concur.
ENTER:
James Edward Pclzer
Clerk of the Court
http://www.nycourts.gov/reporter/mofions/2006/2006_70895.hma 9/28/2006
4
Order of Fox Cohalan, J., Entered Octobe£
4, 2005, Appealed From [Pages 4- 7]
IND~XNo.
BUPREM~ COURT- STATE OFNEWYORK
I.A~S. PAKT 24 - SUFFO~ COTONTY
PRESENT:
Hon. PETEK FOX COI~LLAlq'
Sustic¢ ofth~ Sup~ Co~t
MOTION DATE ~=:
CA.L. DATE 5-4~05
Mot. S~q. # OOg ~ ~',:~::~;-,x~'
Zupa v [Paradise Point, et al.
~flex No. 04-22180
Page lqo. 2
that the cross-motion (~04) for ~,,mm,~ judgm,mt by dmfcndaut State of
,, ~he complaint is gnmtefl; and it is fmth~r
O~D~F.~ that the cross-motion by ddend~ Pm~dise P~ ~o~ ~c. for lca~
~~ ~ ~ B~ to.ted ~ ~ T~ of~o~ol&
~ 365 B~ad ~ 199~. P]~;,,~ ;~ ~ym~d a p~it to ~d a ~ at ~ ~
of lot five w~ ab~ ~e B~ ~e ~c~
~ f~m~bnl~h~J Pl~i~Z~a~o~a~~lot~2002
~ch ~ ~h~ ~ ~ c~t for ~ ~o~
~d ~ ~ ~e B~: Dd~ ~o~~ cl.i~, o~p of~ B~ ~ ~.of
C~g~ ~a ~o ct~m~ ~t ~ ~.po~ess~
of ~e ~ ~cc ~ ~ w~ ~ ~ for a~,,-;m~ ~ ye~.
Ia contrast, plalnti~, allege that as upland ownera, they have gee title to a portiua of the
B~ri~ w~i~h.lies in front ofthe~ i~zui,~7 at 3fiS'Bash~ Road. They
the c~,nrm grantor, the.Paradise Point Corpmafioa, is prior in lime to ths;~
in addition, plainl'if~ C. lnlm ~ the A~ooil~Oll'S ~m.~' ~'~ld//l~lfOes the ~Ut.Lr~ ~ of
j,,a?~t in th~ favor, for a dcclarati_~.tl~t~hey.. . ...~. .. .,,_~m~ioint..~.~ ov~c~s
~oporfimmt~ ,ha,~ o£the be£T ofttm Basin'aml for injuncfivo rolief bming othem from
· intm-f~g with tl~ir rJparln~ fights. The Association mss-moves for leave tO "~-d the
~nsw~ ,~a the sram of N~w York cros~mOVe~ fo~ ~"'""'F jud~a~nt
as ~,,,in,t.. it. .... · · ':': .... ' ' '
~ The Boani of Town Truste~, by l~er ~cl Octobcr 27, 2000. infonvefl plal;,~ h'r. of tho resolution o~
Oc~hcr 25, 2000 ~ranling ptai.~i~' p~mit '~o imtall two sin~-pil~ dolphin, to stabilizelt~.,~,~ and dock with
~ l~y Onlcr date& An~st 2, 2004 (Lou2hllu, ~.),' foe Court upheldtt~ d~m'mina~n ofth~ Zoning Board of
App~ls a~i diamiss~d th~ A_.-ticle ?1~ Petificm brought by p~t;~,~. Mary Zupa, con6~rn.~$ th. Boanl's fin~dng ~t
Zupa v'?axadise ?oil, ~t al.
Iud=z: No..~22 ~ 80
"Page Ne. 3
~e d~f~e of statute ofH~im~ ~d a co~t~ol~ ~ ~to~
· ' · · ~ ~,~..~no
~2d253,.264, 32g ~28 894 [1972], ~d 52 ~d 8~ [1973]; ~r~a~
~~: Page. No. 4
~~t 473,601 ixlYg2d 129 [1993]). A~ has be~ ~fly s~'~ ~m '~o~e" h
~~o~ ~p & ~a~ Co., 226 ~ 38~ 45~ 1919 ~ LR~ g30 [1919]).
In tl~ oa,~:, plai~i~ff~ ~ not cnQtlcd to ~xchlsivc ownm~hip of a ~i~ollional~ ar~a of
Basin ~d~ ~o~ced~ ~oc ~t ~e ~t ~so~aQ~S~e ~ ~blc.
~an~g, 2~ ~2d 1113, 635 ~d 9~ [!~. ~, p~i~' ~n for
~ fi.S.C.
F~IA1, DISPOSITION,
~ ~Zupa v Z~ning Bal. of App~ls of Town Of SoUthold
'[t 2006 op
Decided on July 11, 2006
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law
§ 431.
This opinion is uncorrected and subject to revision before publication in the
Official Reports.
Decided on July 11, 2006
SUPREME COURT OF TIlE STATE OF NEW YORK
APPELLATE DMSION: SECOND JUDICIAL DEPART1VIENT
HOWARD MII,LER, J.P.
THOMAS A. ADAMS
GLOKIA GOLDSTEIN
JOSEPH COVELLO, JJ.
2005-05234 DECISION & ORDER
· [*l]In the Matter of Mary S. Zupa, appellant,
V
Zoning Board of Appeals of Tow~ of Southold, et al., respondents. (Index No.
19605/04)
Wickham, Bressler, Gordon & Geasa, P.C., Mattituck, N.Y. (Eric
J. Bressler of counsel), for appellant.
Smith, FinkelStein, Lundberg, Islet & Yakaboski, LLP,
Riverhead, N.Y. (Frank A. Islet of counsel),
for respondent Zoning Board of
Appe~s of Town of Southold.
Esseks, Hefter & Angel, Riverhead, N.Y. (Stephen K. Angel
and Anthony C. Pasta of counsel), for
respondent Paradise Point Association,
Inc,
7/17/2006
h'Ccp :t/ww~ .courts.smte.ny.us/reporter/~ dsenes/2006/2006_05648.htm
~;:?::' In a proceeding pursuant to CPLR artmle 78 to rev,ew a deterrnmat,on of
:respondent Zoning Board of Appeals of the Town of Southold dated Au .grist 2, 20~!
inter alia, granted the petitioners' application for an area variance to permit construction of a
single-family home on the condition that no building permit be issued until a nonconforming
marina use is discontinued or a variance is granted permitting the marina use in conjunction
with the residential use, the petitioner appeals from a judgment of the Supreme Court,
Suffolk County (Loughlin, J.), entered May 26, 2005, which denied the petition, con.firmed
the det,mfination, and dismissed the proceeding.
ORDERED that the judgment is affirmed, with one bill of costs.
When reviewing a determinati°n ora zoning board, a court is limited to detema, ining
whether the zoning board's action is illegal, arbitrary, or an abuse of discretion (see Matter
ofIfrah v Utschig, 98 NY2d 304, 308). The determination ora zoning board regarding the
continuation of a preexisting nonconforming use must be sustained if it is rational and is not
illegal or an abuse of [*2]discretion, even if the reviewing court would have reached a
different result (see Matter of P.M.S. Assets v Zoning Bd. of Appeals of Vil. of Pleasantville,
98 NY2d 683,685). Moreover, a zoning board may impose conditions when granting a
variance, as long as the conditions are reasonable and are directly related to the real estate
involved, without regard to the person who owns or occupies it, and to the underlying
purpose of the zoning code (see Matter of St. Onge v Donovan, 71 N'Y2d 507, 515; Matter
of Finger v Levenson, 163 AD2d 477). Based on our review of the record, the determination
of the respondent Zoning Board of Appeals of the Town of Southold was rational and was
not illegal or an abuse of discretior~ and the condition imposed was reasonable and directly '
related to the use of the land and the underlying purpose of the zoning code. Accordingly,
the Supreme Court properly denied the petition, confn'med the determination, and dismissed
the proceeding.
We do not pass on the issue of the legality of a certain nonconforming marina, the
subject of which is being litigated in an action entitled Zupa v Paradise Point Assn., pending
in the Supreme Court, Suffolk County, under Index No. 25843/02.
MILLEK, J.P., ADAMS, GOLDSTEIN and COVELLO, JJ., concur.
ENTER:
http:llwww.courts.state.ny.us/rcportcr/3dsefics/2006/2006_O564g.hma
7/17/2006
s:EdWard P¢Izcr
· of thC Court
http:/Iwww.courts,sta~e.ny.uslreportcr/3dseries/2006/2006_O564g.h~m 7It 7/2006
-- Uiee-Presiclent
Arkie Foster
Dickerso~
Town Hall
/560S1~ Route 25
P.O. Box 1179
Southold, New York 11971-09§9
Telephone (6Sl) 765-1892
Fax (661) 765-6641
2005
BOARD OF TOWN TRUSTEES
TOWN OF SOUTI-IOLD
Walker
Assoc., Inc.
St.
1969
POINT ASSOC., INC.
RD., SOUTHOLD
I-1-16.10
Walker:.
own Trustees took the following action during its regular meeting held on
1, 2005 regarding the above matter:
Inter-Science Research Assoc., Inc. on behalf of PARADISE POINT
INC. applied to the Southold Town Trustees for a permit.under the provisions
of the Southold Town Code, the Wetland Ordinance of the Town of
application dated April 22, 2005 and,
application was referred to the Southold Town Conservation Advisory
for their findings and recommendations, and,
Public Hearings were held by the Town Trustees with respect to said
on May 18, 2005, July 20, 2005, and August 24, 2005, at which time all
persons were given an opportunity to be heard, and,
the Board members have personally viewed and are familiar with the
question and the surrounding area, and,
.the Board has considered all the testimony and documentation submitted
this application, and,
the structure complies with the standards set forth in Chapter 97 of the
Code,
the Board has determined that the project as proposed will not affect the
safety and general welfare of the people of the town,
BE IT,
, that the Board of Trustees approve the application of PARADISE POINT
INC. to reconstruct'the existing docking facility 10' to the northwest consisting
15' fixed catwalk, a 4'X 12' ramp, and a 6'X 76' floating dock with three
consisting of one (1) 3'X 20' float and two (2) new 3'X 40' floats, with the
the two docks to the west are removed, and all as depicted on the survey
~ Howard W. Young last dated December 22, 2005.
and complete project will expire two years from the date the permit
Fees must be paid, if applicable, and permit issued within six months o[the
are required at a fee of $50.00 per inspection. (See attached schedule.)
Jr.
Board of Trustees
/~8/2oo6~w~. o~:2o FAX
{COPY}
MEMORA.NDUM
SUPKEM~ COUKT, SLrFFOLK COUNTY.
Applicmion of.
MA_KY S. ZUPA and VICTOi~ .L ZUPA,
Pedtion
For a Judgment lhn'~mnt to CPLR Ardcle 78
THE BOARD OF TKUSTEES OF ~ TOWN
OF SOUTHOLD and PAKADISE POINT
ASSOCIATION, INC.,
WI~, BRESSLEP,4 GORDON
& OEASA, P.C.
Attorneys for Petitioners
13015 Main Rnad, PO Box 1424
M~ttitlmk, ~ 11952
LA.S. PAKT 9
By: Burke,
Dated: ~ // , 2006
IndexNo. 06-2080
Mot. Seq.# 001-CDISPSUBJ
RemmDa~: 3~-06
Adjoumed: 6-7-06
· SMITH, FINKEL'STEIN, LUNDBERG,
IS.qLER & YAKABOSKI, LLP
Attnmeys for ~o~t Bo~
456 ~ng Av~, PO Box 38~
~v~h~, ~ 11901 .
ESSEKS, HEFTER & ANGEL
Attorneys for P, cspondent Paradise Point Assn., Inc.
10g Eust Main Sweet, PO Box 279
P, iverhead, NY 1 !901
In thiu Article 78 proceeding petifionem seek a judlpmmt unnulll,ng and revar~ing
detu.,-.inutions by respondmut Bo~d of Trusmes of tim Town of Southold granfi'aE respondent
Paradise Point Association, Inc. a wetlands pe, ,,,it for the r~novation and reoOnstmotion of their
dock. The p~ition is diumiuscd.
This proceeding hnu its genesis in a long term and contentious, dispute between petitioners
and respondent Psradise Point Aasooiafion~ Inc. (Paraddse Point), involving access to, and the use
of, docking f~ilities on a body ofwater known as th~ "Basin" in Southold, N~v York. '
P~dtioner Mal~ S. Zupa is the owner of a 1.7 dore parcel of real property bordcriug on both
Southold Bay and th~ Basin. Respondent Paradise Point, a group comtxised of neighboring
landowners, ga.~ a~cess to their boats dooked or moored in the BaSin ~.hrollg~'1 an el~-~ll[lel~.t ii, ross
Ms, Zupa's parcel which ~ont~ on the Basin. Kespondent Paradise Point mulntain, three doe. ks
in the Basin, the largest of which extends approwlmately 100 fe~t into the Basin. Two smaller
[~OOl
10/15/2D0~ ~ 04:2! I~A,,~ ~ ,' ~)002
COPY
7:.upa v Board of Trustees
3.nd~x No..06-2080
Page No. 2
docks are siUmted to the west of tho largest dock.
In April o£2005, respondent Paradise Point applied to respondent Board for the wetlands.
permit necessary to repair and/or replace its existing docks. Although the initial proposal
providexl for the replacement u,~ repair of the docks in their ag size and' location, Paradise
Point a~ced~d to respond~lt Board's request that altea-~ativ~ design propossls for the docks be
submitted to lmeommodate both th~ concerns of the Board and c~taln n~arby landowners,
'including the petitioners h~e. in, regarding the size and placement of the docks. Following a
number ofpublic hearings on the application, the Board by resolution, dated S~ptamber 21, 2005,
approv~ respond-hr Paradise Point's spplioation for a wetla p~rmit to rsp~ir their existing
dockqn§ feciligr with the following changes, and subjea m nmw plans showing the following:
I. Existing 6' x 100' floaling dock to be moved 10' to the North west.
2. The sase dock will be shortened to the end of the.third seaward finger fina~ to
approximately 76'; in order to follow the Code requirasent of dock extending no more
than one third across a my. The finger at the end of the existing doc& to the west
will be removed.
3. The fingers on the dock, lanekvard to seaward, will be permitted at 3' x 20', 3' x 40' and
3' X 40'.
4. The two docks to lhe w~st will be remov.d.
lnummeh as the Paradise Point dock plan will require additional approvals l¥om oth~r
agencies such as the New York State Departmeat of Envir0nmental Conservation and the Army
Corps ofRn~oine~rs b~fore it my be implemented, respond{mt Paradise Point also appliexl for
p~,,iusion from the respon&.,mt Board to perform emergency repairs on the presemt dook while
awaiting the other aganci,s' review of the new dock p]anu By determination, dated November
16, 2005, respondent Board approved emergemy work by Paradise Point to preserve the existing
docks during that Fall and Winter season. The emergency work was restricted to:
a. resetting four piles to stabilize the dook over the winter;
h. re-bolting two float ends;
c. tightening all eye boils;.
d. bolting two existing stringers;
e. installlng two sets of eye bolts; mad
f. re-nailing son~ 25 loose boards.
In January, 2006, petitioners commanced the instam Artiole 71t proceeding challenging
the respondent Board's determinations of September 21, 2005 and November 15, 2005 as
arbilrary mad oaprioious, affected by an error of law anr~ a abuse of discretion, im particular,
petitioners maintain that the Board's determinatiom violate, both the procedural mad substantive
requirements of Chapter 97 [now Chapter 275] of the Southold Tom Code.
10/18/200~ WI~D ~4:21 ~AX . ~ , ~003
Zupa v Board of Trustees
lnct~ No. 06-20110
?age 1%. 3
With respect to petitioners' claims regarding the Board's determination, dated November
15, 2005, granting permi.nsion for emergency repairs to the existing docks, responden: Paradise
Poinl allages'that the aforementioned repairs have long since boom.completed. This assertion is
not clnallenged by the petitioners. Petitioners didaot seek a prelirnlnswy injl~Oll or Other~Vine
presea've the stares q tm to prevent the repairs from .going forward during the pendency.o£this
· proceedln~ The petitioners failed to even address the mootness claim in their r~ly a~rms~ion
in support of the p~diion, and therefore, the Court is no/presented with any arguments raising the
applicability of exceptions to the mootness doctrine. Petitioners' clslmnxagarding the Board~s
determination, dated November 15, 2005, are consequently dismissed, as academic (see, Downes
v Town of Southampton Zoning .Board of Appeals, 15 AD3d 398, 790 NYS2d 469 [2005] and
the eases cited therein).
Petitioners'. clulmu regarding the Board's determlnutiou, ttu*.d S~b~ 21, 2005,
~g ~ w~unSu pem~ ~ reg~d to ~ rmov~on md reeo~on of ira de~
~ssed. ~ a proceeding p~,snl to CP~ ~cle 78 a ~ ~y not ~b~m~
for ~l of~ body it ~s E~e dec,ion m~H~ ~ a ~g ~ ~poned
e~ee ~d ~ not =bi~ or ~ able of ~or~on. ~ d~in~on of~bk
e~d~e, it ~ be ~ed (H~ood v Board of ~te~ of the Ink.or.d ~ge of
~ou~ton, 176 ~2d 291~ 574 ~S2d 217 [1991] app ~ 80'~2d 756, '588 ~82d 824).
The application which is the subject of this Article 78 proceeding was made
Chapter 275 [formerly Chatner 97] of the Southo]d To'wn Code entitie, d~ "Wetlands and
Shoreline". Section 275-11[o][23 of the Town Code Section provide~, inpertiaent pan,
Town policy that "all doclm shall be designed constructed and 10oared so as'to redue~ a dook's
potential adverse impacts to navigation, public s~ety, waterway congestion, access to public trust
lands attd water, ,nS natural resources and habitats." Section 275-11 [c][2] of the Town Code
requires tha~ pre-existing nonpermitted and/or nonconformin5 Irixuctures cannot be replaced in
kind without full review ~nd approval by the Board of Trnstees. Section 275-12 of the Town
Code sets forth the applicable st,re,lards to be considered.by respondent Board in
whether to granI an application :for a wetls~d~ permit for a dock (Code of the Town of Southold
§275-12). Under ih{~ section of. the Code, the Board may issue a wetlands permit only if it
determines lhat a proposal will not sub.ntanfia]ly: [~_] fi~.dvera~ly af~ot the w~tlallds of the Towll;
[B] Cause damage from erosion, turbidity or siltation; [C] Cause saltwater intrusion into the fresh
water resowoes of the Town; ID] Adversely affect tis]l, shellfish or other beneficial
urganinmn~ aquatic wildlife and vegetation or the natural habitat thereof; [t3] lmerease the d~nEer
o:fflood and storm-tide damage; IF] Adversely affect navigation o~ tidal waters or the tidal flow
of the tidal waters of the Town; [G] Change the course of any channel or the natural movement
or ilo~v of any waters; [H] Weaken or und~mine the lateral support of other lands in the vicinity;
[I] Otherwise adversely affect the health, safety and general welfare of the people of the Town;
and [iii Adversely affect the aesthetic vatue of the wetland and adjaeem areas.
COPY
Zupa ~ Board o£Trusmcs.
Index 1~o. 06-20g0
Page No. 4
Upon a review of the record, ~Im Court concludes that th= Board's d~u:~.,iuation was
m~te in full compUance with both the procedural md substantive requirean=nts of Ch~ter 275 of
thc Town Code. Contrary to petitioners' conmntinns thc appropriate dommmnts wcrc submitted
by respondent Paradise Point on'irs application, the required notice of the public hem4ng was
given and tt~ public h~aring was s~tually conducted and continued on several dams thereafter.
Thc record also re. fleets that respondent Board heard testhnony from anumber of witnesses ~nd
considered wr/tmn subm~.sions both in support .~a in opposition to the application. Petitioners,
in particul~r,v~rc afforded thc opportunity to ~ddress the Board and r~.i~c sub~-~.sious in
support of their objections. Tim Boreal considered tlm plans and reports prepared by respondaut
Paradise Point's expert ss web ss thc retort oftl~ Town's Cormervation AdvisorY Counoil which
recommended approval of tim proposal.s%tbj~ot to cumin conditions ~dopted bythe Bo~l. In
reviewing thc application th= Board. requ~st~.d respondent Par.,~.c Point to offer.various
altmnstives to its orJ~..1 proposal in order to allow th~ existing dock ~o bett~r conform with thc'
regulations for n~wly consmmted docks. As a result the proposal.~or respondent Psmdise
Point's reconstnmmd doom whioh wss ult~r~.tely ap~ov~ by respondent Board provides for s
single, ~.t~er dock to be constrtmted in a configuration which is less inU'usivc upon petitioners'
property, in particular, and th= Basin~ in gcnc~l. Momover~ two of the three pm-existing docks
am criminated in thc proposal approved by th= Board, Under th~sc circ-m~tancas,, thc Board's
d=term~nation to grant respondent Paradise Point's applioation £or a w~ands'permit was
suppormd by thc substantial cviH~.-cc~ had a rational basis and was not arbitrary ~nd capricious,
F~=ally, the Court declines to 'con~id~r those arguments msdc.by petition=rs herein which
arc simply a reh~.~ing of cl~im~ raised by the petitioners i~ otlmr plenary artions, and CPLR
article 78 proceedings. Ofpartic~l~r not= is the p~tioners' c~.im .that respondent Board failed
to c~ter~i-e *~,* respondent Paradise Point's ~m is not a legal n0noonfo..,'m~g use
· ss suez a du~r,,i~n'don would not bc within th~ purvi~v of the respondent Board's'authority on
an aPPlication for a w~lands p=,~it. In any event, as has already been pointed out ~oy the
A.ppcliam Division, second D~p~u [men~, the legality otthe Paradise Point mm-bm, is already tl~
subject of Iiti~ation in an action, entitied-Zutm v l~aradi~e .Point .,4_s~a, p~ding in this Court
under Index No. 02-25843 (Zu~a ~ Zoning ~oard qf At~la~als ~d~the Tow~ oJ~$auti~aid, 31
AD3.d 570, S. 17 iXTYS2d 672 [2006'J). . . ~
Accordingly, thc p~tion is dc~nicd and th~ procc~-g is
Submit judgment. . . ' ~'//~"
~PPEALS BOARD MEMBERS
Ruth D. Oliva, Chairwoman
Gerard P. Goehringer
James Dinizio, Jr.
Michael A. Simon
Leslie Kanes Weisman
ae ~
http://southoldtown.northfork.net
ZONING BOARD OF APPEALS
TOWN OF SOUTHOLD
Tel. (631) 765-1809 · Fax (631) 765-9064
Southold Town Hall
53095 Main Road · P.O. Box 1179
Southold, NY 11971-0959
Town Annex/First Floor, North Fork Bank
54375 Main Road (at Youngs Avenue)
Southold, NY ! 1971
FINDINGS, DELIBERATIONS, AND DETERMINATION
MEETING DATE: SEPTEMBER 14, 2006
RECEIVED
8EP 1 9 2006
outl[old Town Clerlt
ZBA File # 5914 - BOARD OF TOWN TRUSTEES, TOWN OF SOUTHOI n. Request
for Town-Wide Interpretation of Zoning Code Section 280-141 (formerly 100-241)
regarding the following question: Where a legal nonconforming, preexisting dock/marina
use is issued a wetlands permit that requires docks to be relocated in the same general
area and reduced both in size and number, would compliance with those conditions
cause the docks/marina to lose their legal nonconforming status under Section 100-241 ?
SEQRA DETERMINATION: The Zoning Board of Appeals has visited the property under
consideration in this application and determines that this review falls under the Type II
category of the State's List of Actions, without further steps.
DATE OF PUBLIC HEARINg: The Zoning Board of Appeals held a public hearing on
this application on July 27, 2006, at which time written and oral evidence were
presented. Based upon all testimony, documentation and other evidence, the Zoning
Board finds the following facts to be true and relevant:
BACKGROUND:
The Zoning Board of Appeals received an application from the Board of Trustees
pursuant to former Town Code Section 100-271(D) [now Section 280-146(D)] for an
interpretation of Section 100-241 (now Section 280-121). The application states:
"THE TRUSTEES' ISSUANCE OF PERMITS FOR DOCKS DOES NOT REQUIRE
BUILDING PERMITS AND, AS A RESULT, THERE IS NO MECHANISM FOR THE
BUILDING INSPECTOR TO ACT AND THUS NO APPEAL RIGHT TO THE ZBA,
THUS, AN APPLICANT HAS NO PROCEDURE TO OBTAIN THE ANSWER TO
THE QUESTION BELOW THAT THE TRUSTEES BELIEVE WILL RECUR FROM
TIME TO TIME:
WHERE A LEGAL NONCONFORMING, PRE-EXISTING DOCK/MARINA USE IS
ISSUED A WETLANDS PERMIT THAT REQUIRES DOCKS TO BE RELOCATED
IN THE SAME GENERAL AREA AND REDUCED BOTH IN SiZE AND NUMBER,
WOULD COMPLIANCE WITH THOSE CONDITIONS CAUSE THE
DOCKS/MARINA TO LOSE THEIR LEGAL NONCONFORMING STATUS UNDER
SECTION 100-241."
Page 2 - September 14, 2~.-~
Appeal No. 5914 - Interpretation (Town Trustees)
Southold Town Zoning Board of Appeals
The issues giving rise to this request from the Board of Trustees are set forth in the letter
to the Beard of Trustees dated May 12, 2006 from the attorneys for the Paradise Point
Association.
The Zoning Board of Appeals held a public hearing on July 27, 2006 at which time
written and oral evidence were presented. Based upon all testimony, documentation,
and other evidence, the Zoning Board makes the following determination.
JURISDICTION Of ZONING BOARD
Section 280-146D authorizes the Zoning Board to, among other things, "determine the
meaning of any provision in this chapter'' "on request of any Town officer, board or
agency."
FINDINGS OF FA CT/DETERMINA TION
1. The Town Trustees have requested the Zoning Board's interpretation of the non-
conforming use provisions of the Code because they have issued a permit to a non-
conforming boat basin that would require a reconfiguration of the existing docks rather
than allow an in kind repair/replacement. The Trustees regard the reconfiguretion as
more desirable since it brings the docks into greater conformity with Trustee
requirements. The change was instituted at the Trustees' request and was not sought
by the applicant.
2. Section 97-28 of the Town Code sets forth the Standards for Issuance of Permits by
the Town Trustees as follows:
"The Trustees may adopt a resolution directing the issuance of a permit to perform
operations applied for only if it determines that such operations will not substantially:
A. Adversely affec~ the wetlands of the Town.
B. Cause damage from erosion, turbidity, or siltation.
C. Cause saltwater intrusion into the fresh water resources of the Town.
D. Adversely aff~ct fish, shellfish or other beneficial marine organisms, aquatic
wildlife and vegetation or the natural habitat thereof.
E. Increase the danger of flood and storm-tide damage.
F. Adversely affect navigation on tidal waters or the tidal flow of tidal waters of the
Town.
G. Change the course of any channel or the natural movement or flow of any
waters.
H. Weaken or undermine the lateral support of other lands in the vicinity.
I. Otherwise adversely affect the health, safety, and general welfare of the people
of the Town.
J. Adversely affect the aesthetic value of the wetland and adjacent areas."
' P~'l~e ~ - September 14, 2~...J
Appeal No. 5914 - Interpretation (Town Trustees)
Southold Town Zoning Beard of Appeals
3. Section 280-121A of the Town Code provides in pertinent part:
"Except as provided hereinafter, nonconforming use of buildings or open land
existing on the effective date of this chapter or authorized by a building permit
issued prior thereto, regardless of change of title, possession or occupancy or
right thereof, may be continued indefinitely, except that such building or use:
A. Shall not be enlarged, altered, extended, reconstructed or restored or placed on a
different portion of the lot or [6arcel of land occupied by such use on the effective date
of this chapter, nor shall any external evidence of such use be increased by any
means whatsoever."
4. With respect to the issue before the Board, the non-conforming "use" at issue is the
non-commercial boat basin on Town owned land controlled by the Trustees under the
Andros Patent.
5. The re-alignment of the basin's docks as required by the Trustees does not constitute
a change that would be prohibited under Section 280-121A. The use is not being
"enlarged, altered, extended, reconstructed or restored or placed on a different portion of
the lot or pamel of land occupied by such use"; particularly since the re-alignment was at
the request of an independent board with full jurisdiction over the subject matter.
DETERMINATION:
Weisman, it was
On motion offered by ChairWoman Oliva, seconded by Member
RESOLVED, that the re-alignment of the basin's docks as required by the
Trustees does not constitute a change that would be prohibited under Section
280-121A.
Vote of the Board: Ayes: Members Oliva (Chairwoman), Goehringer and Weisman.
(Members Dinizio and Simon were a)~'e~t.) This Resolution was duly adopted (3-0).
Ruth D. Oliva 9//.~'-/06
Approved for Filing
Patrick M. O'Connell
Thomas A. Osbom
David M Kaufman
Mary Kate Mullen
Angelina Daily
Office Administrator
ATTORNEYS AT LAW
COURTHOUSE CORPORATE CENTER
320 Catleton Avenue, Suite 6800
Central Islip, New York 11722
(~31) 342~070
(631)462-1060
Fax: (631) 342.8350
2 Coraci Boulevard, Suite 6 26 Coufl Street, Suite 1601
Shidey, New York 11967 Brooklyn, New York 11242
Mr. James Dinizio
Cb~i..'than, Board of Appeals
PO Box 1179
Southold, New York 11971-0959
Re: ZBS #8010 -
Dear Mr. Dinizio:
April 25, 2007
Of Counsel
Patrick Henry
Justice, N.Y.S
Supreme Court (Ret.)
Appeal Application (Mary Zupa)
Thank you for your letter of 9 April concerning the captioned matter. It is our
desire to adjourn the application until the various questions of law and fact pending in
Supreme Court be resolved. Accordingly, our application for relief will be submitted at a
later time.
'% truly yours.
PH:fm (~~'e~ ~~
cc: Anthony C. Pasca
Esseks, Hefter & Angel, LLP
108 East Main Street
PO Box 279
Riverhead, New York 11901-0279
Office Location:
Town Annex/First Floor, No~th Fork Bank
54375 Main Road (at Youngs Avenue)
Southold, NY 11971
http://southoldtown.northfork.net
BOARD OF APPEALS
TOWN OF SOUTHOLD
Tel. (631) 765-1809 Fax (631) 765-9064
April 9, 2007
Mailine Address:
53095 Main Road
P.O. Box 1179
Southold, NY 11971-0959
Patrick Henry, Esq.
320 Carleton Avenue, Suite 6800
Central Islip, NY 11722
Re: ZBA # 6010 - Appeal Application (Mary Zupa)
Dear Mr. Henry:
This will confirm that the following action was taken at the Zoning Board Meeting held
on March 29, 2007 by the Zoning Board of Appeals concerning the above Appeal Application:
BOARD RESOLUTION: After receiving testimony, and it appearing that by ZBA determination
#5266 adopted August 2, 2004, this Board granted the applicant an area variance to construct
a home as set forth therein, conditioned upon, among other things, that no building permit be
issued until the nonconforming marina use is removed or a variance is granted to permit its
continued use in conjunction with a residential use; and it further appearing that the applicant
is agreeable to apply for such variance,
Now, therefore, upon motion offered by Chairman Dinizio, seconded by Member Weisman,
this hearing is adjourned to April 26, 2007, so that the applicant can file an amended appeal to
include the request for the variance described in ZBA Determination # 5266, which application
shall specifically show the portions of the property affected by the marina use as well as the
areas of the property that are affected by easements that the Paradise Point Association has
over the subject property, as previously determined by the Courts.
Please feel free to call our Administrative Secretary, Linda Kowalski, if there are
questions concerning the filing of the amended application forms.
Thank you.
.~ery truly you~__~_ ·/
/~a~aD~nizio,Jr. /--
/
SMITH, I?INKELSTEIN, LUNDBERG, ISLER AND YAKABOSKI, LLP
March 30, 2007
APR
James Dinizio
Chairman of the Zoning Board of Appeals
53095 Main Road
P.O. Box 1179
Southold, New York 11971
Re: Zupa v. Zoning Board of Appeals - Index No. 06-29166
Dear Mr. Chairman:
Enclosed please find the reply papers submitted on behalf of the Zupas
with respect to the Zoning Board's interpretation rendered to the Trustees.
I will keep you advised.
FAI/cd
Enclosure
cc: Kieran Corcoran, Esq. - w/end.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK ~,~,~.p,~6 % %%%-/
....................................................................... X Index ~u.. u -29166
Application of
MARY S. ZUPA and VICTOR J. ZUPA,
Petitioners,
REPLY AFFIRMATION
For a Judgment Pursuant to
CPLR Article 78
-against-
ZONING BOARD OF APPEALS OF THE TOWN OF
SOUTHOLD, THE BOARD OF TRUSTEES OF THE
TOWN OF SOUTHOLD and PARADISE POINT
ASSOCIATION. INC.,
Respondents.
ERIC J. BRESSLER, an attorney duly admitted to practice in the courts of the State of
New York, affirms to the truth of the following under penalties of perjury:
1. I am a member of Wickham, Bressler, Gordon & Geasa, P.C., attorneys for
petitioners and make this affirmation in support of the petition and in reply to the answers of
respondents. I have knowledge of the facts stated herein.
2. The Determination at issue is not rational, is unlawful, is unsupported by
substantial evidence, is arbitrary and capricious, is in excess of jurisdiction, and is an abuse of
discretion for eight reasons. Each of these reasons is explained below.
3. First, although the request to the Zoning Board of Appeals was couched as a
request for a town-wide interpretation, it plainly was not so. Rather, the request dealt with a
single project and was highly fact dependent. The size, location, and configurations of the
proposed project were concededly relevant and determinative of the issues. Under such
circumstances a town-wide interpretation could not issue and the Zoning Board of Appeals
lacked jurisdiction. The record reflects that the Zoning Board of Appeals member Dinizio, who
was curiously absent upon the vote of this matter, expressed such a view (R-130, all references
are to the Return). The only appropriate means to handle such an application would have been
for the true applicant, the Associatiom to make an application for relief with a request to a
specific property or project.
4. Second, as a request for a town-wide interpretation, the Request was fatally
deficient in that it did not identify any vagueness or ambiguity in Town Code Section 100-241.
As a result, necessarily, the Determination does not constitute an interpretation of a Town Code
section on a town-wide basis. The Determination is nothing mom that a grant of relief to a
disguised applicant who got the Trustees to do their bidding for them.
5. Third, the underlying premise of the Determination was that the Trustees required
the Association to move their docks. This is simply untrue and not supported in any way by the
return. The Association sought to reconstruct their non-conforming docks in exactly the same
location - a purely voluntary act on their part. The Trustees denied the application but permitted
alternative relief which the Association was and is free to accept or decline. The Determination
somehow impermissibly changed a permissive grant into a mandatory requirement, ignoring the
facts of the application.
6. Fourth, the Determination irrationally found that the docks and marina use existed
solely with respect to the Basin, the land under which is owned by the Trustees. This finding is
directly contradictory to the Zoning Board of Appeal's earlier determination (Exhibit F to
petition) that the docks and marina existed on Mary Zupa's property and operated to bar her from
a building permit until the docks/marina were either removed or legalized by variance. Based
upon the earlier determination it is obvious that removal and reconstruction of the docks/marina
in a new location falls squarely within Section 100-241. There is no way to reconcile the
treatment of the docks/marina in such a disparate manner in the two determinations. The result
of this disparate treatment is to bar Mary Zupa from building by virtue of the earlier
determination and to permit the docks/marina to exist in perpetuity in the future.
7. Curiously, the Zoning Board of Appeals seemed to recognize its inherent
inconsistency in its position when member Goehringer stated at the hearing that:
"We need to differentiate between a marina and never call this a marina. It never
should have been called a marina, it should never be called a marina. It is a
private boat docking area in a private boat basin; and that's it." (R-108)
Apparently the docks/marina are now just a community dock when it comes to granting relief to
the Association to permit reconstruction, but they are a full blown marina use encumbering the
upland when it comes to denying Mary Zupa an opportunity to build a home on concededly
residential property.
8. Fifth, the Determination entirely avoids the issue as to how reconstruction and
movement of the docks and the use thereof to a new location on the upland and within the Basin
does not constitute movement to a new location within the meaning of Section 280-121 (100-
241). To state the conclusion does not explain the reasoning, if any, or justify the result. The
Town Code Section 280-121 (120-241 ) makes it clear that non-conforming buildings and uses d~
not by their terms necessarily extend to entire parcels of land, and, in fact, prohibits movement
from one position to another within a parcel. It is plain that the original docks/marina were in a
specific location different from the proposed new location. Thus, a movement necessarily wouk
occur upon reconstruction.
9. Sixth, the Town Code plainly provides for elimination of non-conforming uses
(Section 100-10). The Determination totally ignores this requirement and essentially permits th~
continumlon of a noO-co~forrning use nd infinitum by mean,~ of rer~ti.t[ve movements and/or
10. Seventh: tl~ Determinatio~ ignored th~ :tact that the legality of the docks/mm'i~aa
was and i.s cun~nltly sub j!~ljce before thc Supreme Court, Suffolk County. Rathez, the Zoning
Board of Appeals aimply sidz-stepped the issue arid awarded relief'as tribe issue didn't exist,
l 1. Finally, the issue of the involuniarincss of the proposed move a~d Ieconstmction
was h~properly raised procedurally as well as suk.stanfively unsupported (as Set forth above). At
no time was any. Jntcrpretetlon requested as to Town Code Section 100-246 adv~ed~ed o1' sought
by alaplication. Thus, its consideration was not permissible,
12. In sunmmy, the Zoning Board of Appeals in its zeal to approve for the
Association retching it .requested, total}y ignored the law and i'Bcts j. rl granting l'eltef, The
Dctermination should be annulled.
WHEREFORF_~ it is rcN~'v'tfully reqtlesled gaat th~ Deic~mlnation be mmulled because
the Determinaiion at issue is not rational, is unlawfiii, is tmsupl~orted by substantial evidcnce, is
arbitrary and capricious, is in excess ofjurisdJclion, and is an abu.~: of discrefioll, and for such
other and farther relief'as tb~ Court may deelI~ just and proper,
Dated: Mm-~h 27, 2007
M~atit uek. N~w Yo~k
~ J. Bresa
LEGAL NOTICE
SOUTHOLD TOWN
ZONING BOARD OF APPEALS
THURSDAY, MARCH 29, 2007
PUBLIC I~ARINGS
NOTICE IS HEREBy GIVEN, pur-
suant to Section 267 of the Town Law
and Chapter 280 (Zoning), Code of the
Town of Southold, the following public
hearings will be held by the SOUTH-
OLD TOWN ZONING BOARD OF
APPEALS at the Town Ha0, 53095
Main Road, PO. Box 1179, Southold,
New York 11971 ~959, on IIIURSDAY,
M~RCH 29, 2007:
9:40 A.M. LYNNE CARDACI
/t6012. Request Iora Variance under
Section 280 124, based on the B0ilding
Inspector's Sanuary 9, 2007 Notice of
f~isapproval concerning an applieatinn
r a building permit for'a proposed
addition to the existing dwelling at less
than 40 feet from the front lot gne, at
80 Jerinck Lane (at Oaklawn Avenue),
Southold; CTM 70-3-16.
9:50 A.M. STEPHEN and CLARA
WONG g6014. Request for a Vari-
ance under Section 280-15, based on
the Building Inspector's January 25,
2007 Notice of DisapprovaI concern-
thg an appbeation Iora building permit
to locate an accessory garage in a front
yard rather than a rear yard. Location
of Property: 1780 East Gillette Drive
and (west) Gillette Drive, East Marion;
CTM 38-3-23.1.
10:00 A.M. PAUL R. CADMUS
#6016. Request for a Variance under
Section 280-124, based on the Building
Inspector's January 26, 2007 Notice of
Disapproval concerning an application
for a building permit to build a covered
porch addition at less than 40 feet from
the front lot line, at 7005 Main Road,
East Marion; CTM 31-1-3.
10:10 A.M. LEE and MARIE BE-
NINATI #6017. Request for Variances
under Section 280-15 and 280-38C-
1, based on the Building Inspector's
January 4, 2007 Notice of Disapproval,
amended February 22, 2007 concerning
an application for a building permit for
(a) in a yard other than the required
rear yard, (b) set back less than 25 feet
from the property line, (c) height ex~
ceedthg the code limitation of 22 feet to
the top of the ridge, and (d) dormer
exceeding 40% of the roof width. Lo-
cation of Property: 3070 Peconic Lane
and C.R. 48 (Middle Road or North
Road), Pecouic; CTM 74-3 15.
10:30 A.M. NANCY BORIS g6007.
Request for a Variance under Section
280-124, based on the Building Inspec-
tor's October 24, 2006 Notice of Disap-
proval concerning an application for a
building permit for an addition to the
dwelling at less than 35 feet from the
front yard lot line and with lot coverage
exceeding the code limitation of 20%.
Location: 335 Pierce Drive and private
right-of-way, Cutchogue; CTM 136-1-8.
10:40 A.M. THOMAS RYZUK
06009. Request for a Variance under
Section 280-124, based on the Building
Inspector's January 19, 2007 Notice of
Disapproval concerning a proposed new
dwelling, after demolition of the exist-
ing structure. The dwelling is proposed
at less than 15 feet on a single side yard
and less than a total of 35 feet combined
side yard setbacks, at 790 North Sea
Drive, Southold; CTM 54-5-14.
10:50 A.M. PERICLES NOTIAS
g6005. Request for a Variance under
Section 100-30A.3 (280-18), based on
the Building Inspector's March 30, 2005
Notice of Disapproval conceruing an as-
built dwelling (re£ B.E File Re£ 29700-
Z) exceeding the code limitation of 2-1/2
stories at 675 Summit Drive, Mattituck;
11:00 A.M. $OSEPH GULMI and
SUSAN BRAVER #5994. Request
for a Variance under Zoning Code Sec-
lion 28~105, based on the Building
Inspector's December I1, 2006 Notice
of Disapproval, and request for relief
from Condition under ZBA No. 5340
concerning the setback location of an
as-built pool (re£ B.R 891932-Z), at less
than 30 feet from the front lot line. Lo-
cation: 250 Pine Tree Court, Cutchogue;
1:25 EM. JOHN and PATRICE
KEITF g6008. Request for Varianc-
es under Sections 280-15, 280-116B,
and 280-124, based on the Building
Inspector's January 11, 2007 Notice of
Disapproval concerning an application
for a building permit for as-built shed,
of a screen porch, and new addition
to dwelling. The reasons stated in the
disapproval are: (a) decking construc-
tion is shown with a zero setback from
the bulkhead, (b) the as-built screened
porch is less than 75 feet from the bulk-
head; (c) the rear yard setback is pro-
loft: posed at less than 50 feet; (d) the as-
built accessory shed does not meet the
required 5 ft. minimum setback under
ZBA No. 3229. (Note: Variance relief
is not requested for the trellis structure.)
Location of Property: 280 Basin Road,
Southold; CTM 81-1-19.
1:50 EM. ROBERT SEELEY
#5912. Request for a Variance under
Section 280-116 (100-239.4A based on
the Building Inspector's April 12, 2006
Notice of Disapproval concerning a
proposed accessory swinmting pool
structure in a location at less than 100
feet from the top of the bluff adjacent to
the Long Island Sound, at 1250 Sound
Drive, Greenport; Rockcove Estates
Lot 4; CTM 33-3-19.4.
2:05 PM. EDWARD FERGUS
#5941. Request for a Variance under
Section 280-18 (100-30 A.3) based on
the Building Inspector's May 31, 2006
Notice ol Disapproval concerning an ap-
l~lication for a building permit to build a
s~ngle-family dwelling in a Iocation less
than the code-required 50 feet from the
rear lot line, at 1854 North Bayview
Road, Southold; CTM 70-12-39.3.
2:20 EM. MARY ZUPA
This is an Appeal for an Interpretation
or other action, based on the Building
Department's December 21, 2006
turn ora building permit application for
construction of a single-family dwelling,
at 580 Basin Road, Southold; C'rM 81-
1-16.7.
The Board of Appeals will hear all
persons, or theh- representatives, desir-
ing to be heard at each hearing, andior
desiring to submit written statements
before the conclusion of each hear-
lng. Each hearing will not start carter
than designated above, l~ifes are avail-
able for review during regular busi-
ness hours and prior to the day of the
hearing. If you have questions, please
do not hesitate to contact our office
at (631) 765-1809, or by emaih Linda.
Kowalski@Town.So ut hold.ny, us.
Dated: March 7, 2007.
ZONING BOARD OF APPEALS
JAMES DINIZIO, JR., CHAIRMAN
By Linda Kowalski
54375 Main Road (Office Location)
53095 Main Road (Mailing Address)
PO. Box 1179
Southold, Ny 11971-0959
8276 1T 3/15
LEGAL NOTICE
SOUTHOLD TOWN ZONING BOARD OF APPEALS
THURSDAY, MARCH 29, 2007
PUBLIC HEARING
NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and Chapter 280
(Zoning), Code of the Town of Southold, the following public hearing will be held by the SOUTHOLD
TOWN ZONING BOARD OF APPEALS at the Town Hall, 53095 Main Road, P.O. Box 1179, Southold,
New York 11971-0959, on THURSDAY, MARCH 29~ 2007:
2:20 P.M. MARY ZUPA #6010. This is an Appeal for an Interpretation or other action,
based on the Building Department's December 21, 2006 return of a building permit
application to construct a single-family dwelling at 580 Basin Road, Southold; CTM 81-
1-16.7.
The Board of Appeals will hear all persons, or their representatives, desiring to be heard at
each hearing, and/or desiring to submit written statements before the conclusion of each hearing.
Each hearing will not start earlier than designated above. Files are available for review during regular
business hours and prior to the day of the hearing if you have questions, please do not hesitate to
contact our office at (631) 765-1809, or by email: Linda. Kowalski@Town.Southold.ny.us.
Dated: March 6, 2007°
ZONING BOARD OF APPEALS
JAMES DINIZIO, JR., CHAIRMAN
By Linda Kowalski
54375 Main Road (Office Location)
53095 Main Road (Mailing Address)
P.O. Box 1179
Southold, NY 11971-0959
· ZONINO BOARD OF APFEAI.8
TOWN O~ 80UTHOLD: NEW' YORK
In thc Matter of thc Application of
(lq ~"ae of Applicaats)
CTIvl Parcel #1000-
AFFIDA%TF
OF
MAILINGS
COUNTY OF SUffOLK)
STATE OF NEW YORK)
Onthe /5 dayof~0, rc~ ,%C~..Q, Ipersoo~llyma~ledatheUnited Siaes
Po~ Office in ..... N~w Yo~, by CER~.~D M~, 1~ RECENT
~Q~S 1~, a m~e ~- of ih6 a~ed M~ Notice in pm~d ~nvelo~s add~ ~
cmcnt o~cm sh.o~ on ~ c~em ~s~s~nt m~ vefifi~ from ~c offic~ r~s oR fie
~ me ~ Assessms, or ( ) ~un~ R~ P~e~, Offim . for ~'eQ~
pm~ny M~ich abu~ ~d is ~mss a ~bltc or phvBte s~ or v~hicular ~t~[~zy of r~ord.
s~o~ding ~he applimt% pro~,. ..
Sworn to befog me this
'~ day of/1,w,~4--. ,200 7
[~:)TARY PUBLIC, State of New YoI~
No. 52-4622371
-- - -- \ ~ualified in Suffolk ~
tN~tary eubli~) \7,,,. ~ ~:.~--.~ ~
PLEBE list, on ~c ba~ offs Affi~t or on a she~ of pa~r ~e iol humors ne~ to ~c
LEGAL NOTICE
SOUTHOLD TOWN ZONING BOARD OF APPEALS
THURSDAY, MARCH 29, 2007
PUBLIC HEARING
NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and Chapter 280
(Zoning), Code of the Town of Southold, the following public hearing will be held by the SOUTHOLD
TOWN ZONING BOARD OF APPEALS at the Town Hall, 53095 Main Road, P.O. Box 1179, Southold,
New York 11971-0959, on THURSDAY~ MARCH 29~ 2007:
2:20 P.M. MARY ZUPA #6010. This is an Appeal for an Interpretation or other action,
based on the Building Department's December 21, 2006 return of a building permit
application to construct a single-family dwelling at 580 Basin Road, Southold; CTM 81-
1-16.7.
The Board of Appeals will hear all persons, or their representatives, desiring to be heard at
each hearing, and/or desiring to submit written statements before the conclusion of each hearing.
Each hearing will not start earlier than designated above. Files are available for review during regular
business hours and prior to the day of the hearing If you have questions, please do not hesitate to
contact our office at (631) 765-1809, or by emall: Linda. Kowalski~Town.Southold.ny.us.
Dated: March 6, 2007.
ZONING BOARD OF APPEALS
JAMES DINIZlO, JR., CHAIRMAN
By Llnda Kowalski
54375 Main Road (Office Location)
53095 Main Road (Mailing Address)
P.O. Box 1179
Southold, NY 11971-0959
~ward Boyd
P.O. Box 1468
Southold, NY 11971
I000-81-1-8
Donna Mortimer
3985 Paradise Point Road
Southold, NY 11971
1000-851-1-7
Stephen Koyler
24 Gramercy Park South
New York, NY 10003
1000-81-I-9&10
Ronald Hermance
327 McKinley Place
Ridgewood, NJ 07450
1000-81-1-16.8
Basin Road Realty Trust
35 Tremont Street
Maynard, MA 01754
1000-81-I-17
Stephen Pen'icone
1205 Tuthill Rd. Ext.
Southold, NY 11971
1000-81-1-16.12
Victor J & Mary S Zupa
4565 Paradise Point Road
Southold, NY 11971
1000-81-1-13.1
Town of Southold
PO Box 1179
Southold, NY 11971
1000-81-1-16.10
ZONING BOARD OF APPEALS
TOWN OF SOUTHOLD: NEW YORK
In the Matter of the Application of
Regarding Posting of Sign upon
pphoant s Land Identified as
1000-
COUNTY OF SUFFOLK)
STATE OF NEW YORK)
AFFIDAVIT
OF SIGN
POSTING
/ff. x/.: [ Iq O [ _, New York, being duly sworn, depose and say that:
Onthe o2.vvz -~day of fi~/]/LC./-/ ,,:2,~?, Ipersonally placed theTown's official
Poster, with the date of hearing and nature of my application noted thereon, securely upon my
property, located ten (10) feet or closer from the street or right-of-way (driveway entrance) -
facing the street or facing each street or right-of-way entrance;* and tlmt
/
I hereby confirm that the Poster has remained in place for seven days prior to tlc/at date of
the subject hearing date, wh/ch hear/ng date was shown to be .fi~/bP,_Cff o~, O..o',v 7 .
!
Sworn to before me th/s
day ofl~cffc-~ ,200 ~1
Commissk:m Exl)kes Aixfl 16, 200~
*near the entrance or driveway entrm~ce of my properly, as the area most visible to passersby.
~ : ¢ HE~IRH~
F~X HO. : G31-B7B-B951
Mar. ~ 2B87 10:41AM P2
Total Postage & Faa* J (~ ~r~. ~f
sent ro Edward Boyd
~;o~:~:-~u?" P.O. Box 1468
o,,OBo~No. Southold, NY 11971
03/13/2d)07
J
RI[18Effil]~I N3 07~50
Return Receipt Fe~ J~ ~' ~ ~..'~1 iaiHere
(Endorsemen~ Required
Total Pos~ge P - ~ *~.~ 03/13/~7
Ron~d
~s~, ~ 327 McKi~ey Place
~o'~o. R~dgewood, NJ 07450
sobg~oLD N~ 11971
Certified Fee
Stephen Perricone
1205 Tuthill Rd. Ext.
o,~,oso,,o Southold, NY 11971
03113/2007
(Endorsement Required)
Total Postage & Faa.
~0.39
$1.85
Sa., ro Town of Southol
[~¢~;~m:~=' P.O. Box 1179
uthold, NY 11971
m Postage
Certified Fee
Return Receipt Fee
(Endorsement Required)
Restricted Delive~ Fee
Basin Road RealW T~t
35 Tremont Street
Mayn~d, ~ 01754
Postage
Ceriified Fee
Return Receipt Fee
(Endorsement Required)
Restricted Deliveny Fee
(Endorsement Required)
~s~.~ ro Stephen Koyler
~/~:;4,~:~o.." 24 Gramercy Park South
~_~o~j?:.... New York, NY 10003
· Complete items 1, 2, and 3. Also complete
it~rn 4 if Restricted Delivery Is desired.
· Print your name and address on the reverse
so that wa can retum the card to you.
· Attach this card to the beck of the mailpiece,
or on the front if space permits.
1. Article Addressed to:
~ address diffem~a from item 1 ?
if YES, enter dalivery address below:
r'l Addre~eee
[] No
Tow~of Southold
p. Lh. Box 1179
Southold, NY 11971
3. Service Type
q~Ll~erflfled Malt [] Express Mall
[ t-I Registered [] Return Receipt for Merchand}se
I [] Insured Mall [] C.O'D. ~]
4. Restricted Delivery? (Extra Fee) [] Yes
2. Article Number
rr~.eoa~s~t~0 7001 2510 0004 1873 2962
PS Form 3811, February 2004 Domestic Return Receipt
· Complate Rems 1, 2, and 3. Alan complete
item 4 If Restricted Delivery is desired. [] Agent
· Print your name and address on the reverse [] Addressee
so th at we can return the cad to you. by(Printed Name)
· Attach this card to the back of the mailplece,
or on the front if space permits.
Bhasih Road Realty Trust
35 Tremont Street ':
Maynard, MA 01754 s.
Mall [] Express Mall
p'Reglstef~::[ D Return Recalpt for Merchandise ri ~
r'l ,nsurad Mall []C.O.D.
~.~.~o~7~001 2510 0004 1873 2979
PS Form 381 1..February 200~.':-., ', Domestic Return Receipt 102S~o-02-M-1S40,
· Complete items 1, 2, and 3. Also complete
Rem 4 If Restricted Delivery Is desired.
· Print your name and address on the reverse
so that we can retum the card to you.
· Attach this card to the back of the mailpiece,
or on the front if space permits.
Is daliva3
If YES, enter dallvep
Stephen Perricone
1205 Tuthill Rd. Ext.
Southold, NY 11971
2.
~1 Mall [] ~ Malt
md [] Return Receipt for Merchandise
[] Insured Mall [] C.O.D.
[]Yes
PS Form ;5~'1 'l, February 2004 uom~o h~e~Jrn ~lp[ ,02595-O2-M-1540
F'R[~ : C HE~IPP40 INC
fax NO. : 631-8'78-8951
I0,39 0901
Return Receipt Fee /q,ig~j/~ '" ~Here
m ~.~ &~-~7~,~-' 3985 P~adise Point Road
~ [o/~;.~.%.; Southold, NY 11971
Certified
Retu n Receipt
~ !~-.~.;~- Victor 3. & Mary S. Zupa ,
.~.~v~--a~:- 4565 paradise Point Road '
t~r~.'; ?_o:i'_. Southold, NY 11971
· Complete items 1, 2, and 3. Also complete
item 4 if Restricted Delivery Is desired.
· Print your name and address on the reveme
so that we can return the card to you.
· Attach this card to the back of the mfdlpiane,
or on the front if space permits.
1. ArticleAddmssed to:
Edward Boyd
P.O. Box 1468
· Southold, NY 11971
-I~.R~(}PrI~--' Name)~ C. Date of Delivery
~y~ ~;~? [] Y~
~ In~ M~I 0 C.O.D.
4. Restricted Delivery? ~ Fee) 0 Ye~
2. Article Number
7001 2510 0004 1873 3037
PS Form 3811, February 2004
Domestic Return Rsceipt
-- 1. Article AcldreSs~ to:
' Ronald Hermance
327 McKinley Place
, Ridgewo .og, NJ 07450
~1 ~'~ Number 7 0 01
. PS Form 3811, February 2004
[~f,.Ceratled Mall [] E~ Mall
[~1 R~l~te~:l [] Return Receipt for Memhandlse
FI InaJ'KI Mall [] 0.0.0.
4. ReMga~m:l De#vee~ ~dm Fee) OYe~
2510 0004 1873 3020
¥
D.a6~J-; Return Receipt
· Complete items 1, 2, and 3. Also complete
item 4 if RestrlctedDelivery is desired.
· Print youLname and address on the reverse
so that we can return the ca~l to you.
· Attach this cand to the back of the maiipisoe,
~or on the front if space permits.
1.~l~tJcle Addressed to:
~onna Mortimer
3i985 Paradise Point Road
Southold, NY 11971
2. Article Number
V,.,o;o, Vom s~,v~ ~b~O 7001
! PS Form 3811, February 2004
Signature D Agent
X [] Addressee
Ptfntsd Name) [ C. Date of Delivery
9
I ~ed Mall [] Express Mall
I ~ Registered [] Return Receipt fo~ Melcha~ldiSe
l [] Insured Mall i-I C.O.D. .
~ 4. Restricted Dalive~? (Extra Fes) [] yes
2510 0004 1873 3006
Domestic Return Receipt
NOTICE OF HEARING
The following application will be heard by the Southold Town
Board of Appeals at Town Hall, 53095 Main Road, Southold:
NAME: ZUPA, M. #6010
MAP #: 81-1-16.7
APPEAL: Interpretation or Other Action
REQUEST:
Building Permit/Construction
DATE: THURSDAY, MAR. 29, 2:20 PM
If you are interested in this project, you may review the file(s) prior to
the hearing during normal business days between 8 AM and 3 PM.
ZONING BOARD-TOWN OF SOUTHOLD 765-1809
ZONING BOARD OF APPEAL~="'
MAILING ADDRESS and PLACE OF HEARINGS: 53095 Main Road, Town Hall Building,
P.O. Box 1179 Southold, NY 11971-0959
(631) 765-1809 Fax 765-9064
LOCATION OF ZBA OFFICE: Town Hall Annex at North Fork Bank Building, 1st Floor
54375 Main Road and Youngs Avenue, Southold
website: http://southtown.northfork.net
March 6, 2007
Re: Town Code Chapter 55 - Public Notices for Thursday, March 29, 2007 hearing
Dear Sir or Madam:
Please find enclosed a copy of the Legal Notice describing your recent application. The Notice
will be published in the next issue of the Times Review newspaper.
1) Before March ~14th:
Please send the enclosed Legal Notice, with both a Cover Letter including your telephone
number and a copy of your Survey or Site Plan (filed with this application) which shows the
new construction area or other request, by CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, to al.~l owners of property (tax map with property numbers enclosed), vacant or
improved, which abuts and any property which is across from any public or private street.
Use the current owner name and addresses shown on the assessment rolls maintained by the
Town Assessors' Office located at Southold Town Hall, or Real Property Office at the County
Center, Riverhead. If you know of another address for a neighbor, you may want to send the
notice to that address as well. if any letter is returned to you undeliverable, you are requested
to make other attempts to obtain a mailin.q address or to deliver the letter to the current owner,
to the best of your ability, and to confirm how arran.qements were made in either a written
statement, or durin.q the hearinq, providinq the returned letter to us;
AND not later th~n March 15th: please either mail or deliver to our office your Affidavit of
Mailin.q (form enclosed) with parcel numbers, names and addresses noted, and furnish it to
our office with the white receipts postmarked by the Post Office. When the green signature
cards are returned to you by the Post Office, please mail or deliver them to us before the
scheduled hearing. If any signature card is not returned, please advise the Board during the
hearing and provide the card (when available). These will be kept in the permanent record as
proof of all Notices.
2) Not Later March 19th: please make arrangements to place the enclosed Poster on a
signboard such as cardboard, plywood or other material, posting it at your property for seven
(7) days (or more) until the hearing is held. Securely place the sign on your property facing
the street, no more than 10 feet from the front property line bordering the street. If you border
more than one street or roadway, an extra sign is available for the additional front yard. Please
deliver your Affidavit of Postinq during the meeting.
If you are not able to meet the deadlines stated in this letter, please contact us promptly. Thank
you for your cooperation.
Very truly yours,
Zoning Appeals Board and Staff
Encls.
COURTHOUSE CORPORATE CENTER
320 Carleton Avenue, Suite 6800
Central Islip, New York 11722
PHONE: (631) 232-0363
FAX: (631) 8350
1 8 2007
January 16, 2007
Mr. James Dinizio, Chair
Southold Zoning Board of Appeals
53095 Main Road
P.O. Box 1179
Soutbold, New York 11971-0959
Re;
Appeal of Mary S. Zupa
580 Basin Road (SCTM 1000.81.1.16.7)
Dear Mr. Dinizio:
PH:ad
Please be advised that I have been retained to represent Mary Zupa in her appeal
in the captioned matter. Accordingly, it is requested that I be given the opportunity to
address the Board when the matter is next scheduled. Notification of the date and time
would be most appreciated.
FROM : RPM TECHNOLOGY
FAX NO. : 516 567 8841
ID, o ~r~t ~ oP
I. 27 2807 09:05AM P1
Zop~
H~v~~ MY Sup~b~?
$OoT~ouO
SAViNGs BANK
Sotlthol~ N,Y; 1!97!
~ 2~i 200?
l~ to emlorS~ the aPPlic~on ~ Mm'Y ~fora buil~ pem~t ~ ~a single-
~ami!Y d~?ling at 580 B~ Road, Southold. I am a neigh°r and welcom~ tl~ idea ~a a
house wiil be con.~uctCd on the proposed ~e.
C~airma~, ~t ~ CEO
Wlavr $0 C~:NvFt~g'f RO~,D · P~.~tU~, b,~J 076~2~1475 *~1 ~967A900
Office Location:
Town Annex/First Floor, North Fork Bank
54375 Main Road (at Youngs Avenue)
Southold, NY 11971
http://southoldtown.northfork.net
BOARD OF APPEALS
TOWN OF SOUTI-IOLD
Tel. (631) 765-1809 Fax (631) 765-9064
Mailing Address:
53095 Main Road
P.O. Box 1179
Southold, NY 11971-0959
March 12, 2007
Mark Terry, Senior Environmental Planner
LWRP Coordinator
Plarming Board Office
Town of Southold
Town Hall Annex
Southold, NY 11971
Re: ZBA File Ref. No. 6010 (Zupa)
Dear Mark:
We have rcccived an application for a reversal of the Building Department's rejection of
an application to construct a home at the Zupa premises at 580 Basin Road, SouthoId.
Copies of the LWRP form and area map are also attached for your use and reference.
May we ask for your assistance in an evaluation and recommendations for this proposal.
Thap, k you.
Very truly yours,
JAIvIES DINIZIO, JR.
By:_
COURTHOUSE CORPORATE CENTER
320 Carleton Avenue, Suite 6800
Central Islip, New York 11722
January 16, 2007
PHONE: (631} 232-0363
FAX: (631) 8350
JAN 1 it 2007
Mr. James Dinizio, Chair
Southold Zoning Board of Appeals
53095 Main Road
P.O. Box 1179
Southold, New York 11971-0959
Re:
Appeal of Mary S. Zupa
580 Basin Road (SCTM 1000.81.1.16.7)
Dear Mr. Dinizio:
PH:ad
Please be advised that I have been retained to represent Mary Zupa in her appeal
in the captioned matter. Accordingly, it is requested that I be given the opportunity to
address the Board when the matter is next scheduled. Notification of the date and time
would be most appreciated.
January 26, 2007
Linda:
Attached are 7 copies of the ZBA appeal papers already filed, and an original and 7
copies of the LWRP.
Mary/_~and I appreciate your help.
Vic
SOUTHo/~
2.8A(c)
Real Property Tax Service Age~y
T~IN ~ SOUTNOLD