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HomeMy WebLinkAbout6353 BOARD MEMBERS Leslie Kanes Weisman, Chairperson James Dinizio Gerard E Goehringer George Homing Ken Schneider Southold Town Hall 53095 Main Road · P.O. Box 1179 Southold, NY 11971-0959 Office Location: Town Annex/First Floor. Capital One Bank 54375 Main Road (at Youngs Avenue) Southold, NY 11971 http://southoldtown.northfork.net ZONING BOARD OF APPEALS TOWN OF SOUTHOLD Tel. (631) 765-1809. Fax (631) 765-9064 ~[JG ~'0 2010_ FINDINGS, DELIBERATIONS AND DETERMINATIOI~outhold Towfl Clerl~ MEETING OF JULY 13, 2010 ZBA FILE: 6353 NAME OF APPLICANT: Lewis Edson PROPERTY LOCATION: 30105 Route 25, Cutchogue, NY SCTM#1000-102-2-16 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 11 category of the State's List of Actions, without further steps under SEQRA. SUFFOLK COUNTY ADMINISTRATIVE CODE: This application was referred as required under the Suffolk County Adminislrative Code Sections A 14-14 to 23, and the Suffolk County Department of Planning issued its reply dated December 21, 2009 stating that this application is considered a matter for local determination as there appears to be no significant county-wide or inter-community impact. LWRP: This application is not subject to review under Chapter 268 because the variance relief requested does not involve features that relate to a regulated natural feature or a bulkhead or other shoreline. PROPERTY FACTS/DESCRIPTION.' The property is a conforming 25.5 acres parcel located in a split zone, R-40 and R-80. It is improved with a two-story dwelling and a large metal building containing 7,824 sq. ft. as indicated on the survey of John T. Metzger dated November 12, 2009 (last revised November 18, 2009), entitled "Plan Showing Building Layout of Santas Xmas Farm", with 118.11 feet of frontage on Main Rd. (S.R 25). BASIS OF APPLICATION: Request for an interpretation of Chapter 72, Art. l, Section 72-4, based on an application for building permit to operate a farm stand in an existing building, and the Building Inspector's September 21, 2009 Notice of Disapproval stating the proposed use does not meet the definition of a farm stand, at 30105 Route 25, Cutchogue, NY. CTM#: 102-2-16. RELIEF REQUESTED: The applicant requests to operate a farm stand in its existing location. The applicant proposes to alter his existing building to conform to the Town Code definition of a farm stand. BACKGROUND AND ADDITIONAL INFORMATION: The Applicant acknowledged that he had been operating the sales portion of "Santa's Christmas Tree Farm" in the entire 7,824 sq. ft. metal building since the 1980s. This operation has been the subject of an enforcement action commenced by the Town against the Applicant entitled "Town of Southold v. The Estate of Grace R. Edson and Lewis Edson a/k/a Lefferts P. Edson," Suffolk County Supreme Court Index no. 11814/2007. The relief sought by the Town in this action was a permanent injunction that would restrain the Applicant and his agents from using and occupying the 7,824 sq. ft. accessory agricultural building that is the subject of this application for retail use. On January 19, 2010, the ZBA was provided a copy of the final determination of the Supreme Court Suffolk County (Hon. Paul J. Baisley, Jr., J.S.C.), dated August 6, 2009, which stated the following: Page 2 - June 13, 2010 ZBA File#6353 Lewis Edson CTM: 1000-102-2-16 The affidavit of Mr. Lark thus establishes that prior to the 1990 expansion, defendants' retail operations although concededly including the sale of a limited number of manufactured items not "grown on the premises" - were relatively modest, and that the principal use of the building was for the seasonal sale and display of Christmas trees, evergreen wreaths, and roping grown on the premises, it is undisputed that the present retail operation is vastly expanded, and that the sale of#ems not grown on the premises now predominates. Indeed, Mr. Lark's description of "several rows of tables" displaying Christmas related items must be contrasted with defendants own description of the current use of the "accessory nursery building," as reflected by defendants webpage. That document begins, "when you walk into our store you will say "WOW, "an assessment with which, upon perusing the contents, the Court wholeheartedly agrees. Defendants' webpage boasts that defendants' "retail space measures almost 10,000 square feet making us one of the largest Christmas stores in the northeast" and reports that defendant is "a Dept. 56 retailer of Snow Village, Dickens, The City, New England, the North Pole and Snow Babies. Other lines that we carry include, Yankee Candle, Fontanini, Old Worm Christmas, Lenox just to name a few. We carry all tree trimmings, gift wrap, cards and many specialty items. We have a large selection of personalized items and have a local artist on premise to personalize any ornament you choose. Also we make our own fresh wreaths decorated on premises. If you visit after Thanksgiving we have Santa here on the weekends." There is no logical process whereby the above-enumerated list can be considered to constitute usual and customary accessories to an agricultural operation. In light of this Court decision, the Applicant is before the ZBA to legalize this use and has argued that he is scaling back his operation that was the subject of the Supreme Court action to comply with Chapter 72 of the Town Code. During the hearing, the applicant was asked to provide written documentation regarding a break down of the percentages of the sales at the farm stand. On March 16, 2010 the Board received "An Addendum to the Lewis Edson Farm Stand Application" that purportedly provided the requested information. In a memorandum dated March 8, 2010 from the Chairperson of the Town of Southold Planning Board, they commented that the application does not meet the requirements pursuant to Southold Town Code Section 72-4 (definitions) and 72-7 (farm stand offerings), as well as suggesting that the proposal required a use variance. At the Public Hearing on June 30, 2010 the Board requested comments from the Agricultural Advisory Committee, In a response dated June 14, 2010, the AAC concluded that the applicant does meet all the requirements under Chapter 72 and is a bona fide farm stand, provided that the applicant install a permanent partition prior to applying for a farm permit to reduce the floor area to 3,000 sq. ft. or less. A letter from Kevin E. Matthie of the Department of Transportation dated Sept 11, 2010 to Mr. Edson, confirmed that the existing curb cut and apron to the subject property conforms to NYSDOT specifications. FINDINGS OF FACT/REASONS FOR BOARD ACTION: The Zoning Board of Appeals held a public hearing on this application March 25, 2010 and June 30, 2010, at which time written and oral evidence were presented. Based upon all testimony, documentation, personal inspection of the property, and other evidence, the Zoning Board finds the following facts to be true and relevant and makes the following findings: On the basis of testimony presented, materials submitted and personal inspections, the Board makes the following findings: Page 3 - June 13, 2010 ZBA File#6353 - Lewis Edson CTM: 1000-102-2-16 Based upon the Notice of Disapproval calling into question whether the proposed use of this building is a farm stand, it is clear that there are two distinct issues before the Board, namely: 1. Whether the applicant's proposed retail sales operation is outside the scope of retail sales associated with agriculture, and thus requires a use variance as opposed to a farm stand permit; and 2. If a use variance is not required, whether the proposed retail sales operation qualifies as a farm stand under Chapter 72 of the Town Code. 1. The applicant will not be required to obtain a use variance: While a retail operation that is accessory to agriculture can be considered a farm stand, there is a threshold, whereby the accessory use is transformed into the principal use and removes a sales operation from an "accessory to agriculture" and becomes a full scale retail sales operation that is not accessory to agriculture. This threshold is particularly important when considering a Christmas tree farm, which, as acknowledged by the Applicant, retains most of its farm-grown product in the field and does not maintain a sales floor for Christmas trees within a sales building. The applicant testified that with respect to the Christmas tree sales, the only use needed for the retail sales building was for payment of the trees purchased. It is clear that Chapter 72 of the Town Code includes Christmas tree farms as an agricultural operation that is permitted to have a farm stand. However, based upon the text of Chapter 72 and the minutes of the Town Board public hearing of July 1, 2008 where Chapter 72 was considered, Chapter 72 was tailored to traditional farm stands (sale of vegetables and fruit), as opposed to a farm stand associated with a Christmas tree farm where crops are primarily located in the field and not sold in a retail sales area. This threshold was discussed in the August 6, 2010 determination of the Supreme Court. The Town and this Board are bound by this determination, which has set the standard for when a retail sales operation goes beyond that of accessory to agriculture with respect to Christmas tree farm operations. As such, the operation as it previously existed would have required a use variance. The more complicated issue is whether simply decreasing the square footage of the operation, while offering all the same attractions and products continues to qualify this operation as a full scale retail operation. From the language of the court determination, it is clear that offering the same attractions and products, even in a smaller space, would require a use variance. From the testimony at the both hearings and the written materials submitted by the applicant including statements that the proposed modified operation will be limited to selling ornaments, tree stands, bells, wreaths and other items traditionally associated with Christmas trees and wreaths made with said trees in compliance with the proportions set forth in Chapter 72. Provided that the Applicant operates within the limitations in Chapter 72, this Board concludes that the applicant will not require a use variance. 2. The proposed modified use of the buildings meets the definition of a farm stand under Chapter 72 · of the Town Code. The applicant is proposing to partition the existing 7,824 sq. ft. agricultural building into two sections: one containing 2,998 sq. ft. to be utilized for a farm stand and the remainder to be utilized for farm storage and equipment handling. This proposal has been issued a notice of disapproval because, among other things, the entire building is 7,824 sq. ft., far above the code dictated 3,000 sq. ft. maximum floor area permitted for farm stands. The Zoning Board of Appeals finds that the definition of a farm stand includes a portion of building and that said portion of a building can be up to 3,000 sq. ft. without requiring a variance from this Board for the reasons set forth below. Chapter 72 Article 1 Section 72-4 contains certain definitions pertaining to farm stands as follows: FARM STAND Any primary structure or portion of a structure greater than 80 square feet in area used for the purpose of retail sale of locally produced agricultural products grown by the owner or lessor of the structure, as well as the accessory sale of processed agricultural products, agriculture-related products and incidental Page 4- June 13, 2010 ZBA File#6353 - Lewis Edson CTM: 1000-102-2-16 accessory items. For the purposes of this chapter, a farm stand shall be limited to structures operated by an applicant on a parcel with either: not less than seven acres of land used as a single operation in the preceding two years for the production or sale of crops, livestock or livestock products of an average gross sales value of $10,000 or more or land of seven acres or less used as a single operation in the preceding two years for the production or sale of crops, livestock or livestock products of an average gross sales value of $50,000 or more. RETAIL SALES AREA Portions of a farm stand operation, usually covered, which are dedicated to the direct marketing and sale of farm stand products, including public rest rooms, but excluding storage areas, temporary display areas and other areas not accessible to the general public. Regarding these definitions, the Board finds that the applicant is a recognized agricultural production operation which exceeds 7 acres in size and yields more than $10,000 of revenue per annum over two consecutive years. The Applicant testified that his farm had approximately 22,000 trees under various stages of growth on the farm and that the annual sales of Christmas trees in any season is approximately 1500 to 2000 trees. In a letter submitted by the applicant on October 20, 2009, the applicant stated that he had approximately $110,000 in tree sales for the 2009 holiday season. Additionally, given the definition of "Retail Sales Area" and representations made by Applicant, the entire farm stand including the retail sales area and the storage of all incidental accessory items that are sold at the farm stand must be contained within the 2,998 sq. fi. section of the building,t Additionally, {}72-8 sets forth the maximum size of a farm stand structure (s) as 3,000 sq. ft. The applicant currently has a building with a total of approximately 7824 sq. fi of floor area. The applicant proposes to setoff a portion (2,998 square foot area) of this building by installing a wall with a small door to define farm stand operation. With respect to the setting off of a portion of the building, the Board has testimony from the Agricultural Advisory Committee stating that doing so in this fashion is in keeping with original intent of Chapter 72. Furthermore, the applicant has agreed to maintain 20 - 25% of the space within the farm stand as space utilized for the making and decoration of, as well as sale of wreaths created from trees grown on site. As such, the proposed farm stand complies with maximum size of a farm stand structure. Finally, the applicant also testified with respect to the intended compliance with {}72-7 of the code, entitled farm stand offerings. In the applicant's September 9, 2009 letter to Board, the applicant stated the following: 1. 60% of the gross revenue generated is anticipated to be from trees grown on the farm; 2. 20% of the gross revenue generated is anticipated to be from wreaths; and 3. 20% of the gross revenue generated is anticipated to be from ornaments and similar non-agricultural incidental products. So long as the proposed farm stand operates within the above referenced parameters it will meet the definition of a farm stand as set forth in Chapter 72 and is entitled to the issuance of a farm stand permit from the building department. RESOLUTION OF THE BOARD: In considering all of the above, motion was offered by Member Weisman (Chairperson), seconded by Member Goehringer, and duly carried, finding that the proposed 2,998 sq. ft. portion of the agricultural structure shown on the survey by John Metzger, Peconic Surveyors, PC dated November 12, 2009 ~ While not at issue in this determination, it is noted that the Agricultural Advisory Commission opined that the code sets a maximum only for the "retail sales area" of a farm stand at 3,000 sq. R. and indicated that the remaining portion of the building in this instance can be used to store incidental accessory items that are not a product of the farm. This board disagrees with this interpretation, lfthe Town Board intended to set a maximum size limitation of the retail sales area at 3,000 sq. fl., it would have specified such within §72-8. Instead, §72-8 refers to the maximum size of the farm stand structure(s), which includes the retail sales area and storage areas. In this instance, the remaining portion of the building that is not part of the farm stand can only be used for storage of equipment and other on-farm produced agricultural products, but not for the storage of incidental accessory items that are not produced on the farm. Page 5 June 13, 2010 ZBA File#6353 - Lewis Edson and labeled Plan Showing Building Layout. as presented to the Zoning Board of Appeals meets the definition of farm stand and the Building Department is permitted to issue a farm stand permit to same upon the satisfaction of the representations by the applicant at the public hearing as follows: 1. Applicant shall obtain a building permit to construct the proposed permanent partition, thus reducing the retail sales area to 2,998 square feet, prior to obtaining a farar stand permit. 2. Applicant shall clearly indicate with proper signage and security that the 4,826 sq. ft. area beyond the farm stand is for employees only and not accessible to the general public; 3. No retail sales, nor storage of incidental accessory items that are not produced on the farm may be stored within the 4,826 sq. ft. area of the building beyond the farm stand; 4. Based upon the testimony of the applicant, the Farm Stand shall operate on a seasonal basis, as from Labor Day through March 31. 5. Applicant shall continue to operate as a recognized agricultural production operation as per code while the farm stand is in existence Any deviation from the survey, site plan and/or architectural drawings cited in this decision will result in delays and/or a possible denial by the Building Department of a building permit, and may require a new application and public hearing before the Zoning Board of Appeals. Any deviation from the variance given such as extensions, or demolitions which are not shown on the applicant's diagrams or survey site maps, are not authorized under this application when involving nonconformities under the zoning code. This action does not authorize or condone any current or future use, setback or other feature of the subject property that may violate the Zoning Code, other than such uses, setbacks and other features as are expressly addressed in this action. The Board reserves the right to substitute a similar design that is de minimis in nature for an alteration that does not increase the degree of nonconformity. Vote of the Board: Ayes: Members Weisman (Chairperson.), Goehringer, Schneider. (Absent were: Members Horning and Dinizio) This Resolution was duly adopted (3-O). Leslie Kanes We~sman, Chairperson Approved for filing ~7///~/2010 RF. CEIVED , Tow. Cler~ OFFICE 470 SCl. fl. STORAGE 130.0' [Z~15' 5" 130.0' .~. TOTAL RETAIL SALES = 2998 sq. ft. 40.6° RETAIL SALES ~.373 sq. fL ~30ARD OF APPEAI-~ PLAN SHOWING BUILDING LA YOUT OF SANTAS XMAS FARM A T CUTCHOGUE, N.T. 1000-1 Scole~ I" = -PO' Nov. I-p, NOV. 18, SO09 ~REVlSED] (6 - 1797 P. O. BOX 909 1250 TRAVELER STREET SOUTHOLD, N. Y. 11971 Chris Baiz, Chairman Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 AGRICULTURAL ADVISORY COMMITTEE Leslie Kanes Weisman, Chairperson Board of Appeals Town of Southold 54375 Main Road Southold, NY 1197~. Re: EDSON FARM STAND Dear Ms. Weisman: June 14, 2010 RECEIVED JUN 2 4 20 0 BOARD OF APPEALS The Agricultural Advisory Committee thanks you for your inquiry asking for comments concerning the request of Lewis £dson for a Farm Stand Permit per Chapter 72 of Southold Town Code. The AAC met at its regularly scheduled meetings of April 21, May 19, and June 16 this year, and as part of those meetings agenda discussed the Edson Christmas Tree Farm application based on the information package submitted to the AAC from the office of the Board of Appeals. Subsequently, four members of the AAC made a field inspection on May 2S at the Edson agricultural operation. Mr. Edson was present, as well. The AAC response to the Board of Appeals' request is based on the information package from your office, the field inspection, discussions with Mr. Edson, and the AAC's discussions at its regularly held meetings as the permit request relates to Chapter 72, the "Agricultural Uses Law" of the Southold Town Code. The Edson Christmas tree farm is a bona fide agricultural producing operation per Chapter 72. It exceeds seven acres in size and yields more than $10,000 of revenue per annum averaged over two consecutive years. The agricultural production of Christmas trees is stated in 72-4(G) as an accepted crop in the Town of Southold. However, the AAC notes that the enumerated crops in 72-4 are only some of the "valid" crops, but it is not limited to just those stated crops. The farm stand permit applicant has indicated that the building to be used already exists. Further the applicant states that he will partition the building, which is some 9,000 square feet in area, such that the on-farm enclosed farm product marketing area will not exceed 3,000 square feet in area. This is in conformance with Chapter 72. It is as intended when Chapter 72 was originally drafted. Chapter 72-4 defines ~Farm Stand" in part as "any primary structure or portion (AAC's added emphasis) of a structure greater than 80 square feet in area used for the purpose of retail sale of locally produced agricultural products grown by the owner or lessor of the structure, as well as the accessory sale of processed agricultural products, agricultural-related products and incidental accessory items." (By RECE]VED JUN contrast, any structure used for on-farm agricultural product marketing on a operation less than 80 square feet in area in the Town of Southold is as of right without the requirement to apply for a Town Farm Stand permit.) Per Chapter 72-6(A)(2), the total area dedicated to the farm stand use is not to exceed 3,000 square feet, even if it is within o largerstructure.(AAC's added emphasis). The 3,000 square feet area maximum under Chapter 72-4 definitions states, "Retail Sales Area," is to include those areas "dedicated to the marketing and sales of farm stand products, including public rest rooms, but excluding storage areas, temporary display areas, and other areas not accessible to the general public.# This clearly states that the overall structure may and can be much larger in area than the "farm stand structure" portion of 3,000 square feet within the larger structure. The structure at the Edson Christmas tree farm is a valid farm stand when the partitioned "retail sales area" within the structure does not exceed 3,000 square feet of area in the larger structure. If a bona fide agricultural operation wanted a "retail sales area" larger than 3,000 square feet, the owner/operator would submit a petition to the Board of Appeals prior to obtaining a "Farm Stand Permif' from the Town Building Department. In the Edson Christmas tree farm case, Mr. Edson stated that the NON-retail sales area would be used for warehousing of agricultural and accessory products per Chapter 72~7 "Farm Stand Offerings", farm equipment, and other non-retail sales area activities, such as an office, etc. Chapter 72 offers further flexibility to the owner/operator of a bona fide agricultural operation in Chapter 72, Article II, 72-7, "Farm stand offerings". 72-7(A) requires that "at least 60% of the gross dollar value of all items offered for sale at farm stands shall consist of agricultural products grown by the farm stand operator within the Town of Southold." 72-7(B) allows "no more than 40% of the gross dollar value of all items offered for sale at a farm stand may consist of the following items only": including 7247(B)(4) "other accessory items, but limited to the specific farm stand agricultural operation, such as decorative housewares, planters and like items." Think Christmas trees, see Christmas decorations. In understanding paragraph 72~7(A) & (B)(1~4), the reader must understand that the foregoing is "offered" products. Though a farmer may turn his inventory under 72-7(A) only once per year, he could turn his inventories in 72-7(B)(1-4) many times per year and still be in compliance with Chapter 72. Paragraph 72-7 as a whole offers some needed flexibility so that a farm owner/operator may be able to generate revenue even when his crops {72-7(A)} are not in season. The Agricultural Advisory Committee concludes that the £dson Christmas tree farm be issued a farm stand permit without variance and without site plan approval. It highly recommends that the Edson structure have a completed, permanent partition installed prior to applying for its "Farm Stand" permit. Sincerely yours, DEPARTMENT OF PLANNING COUNTY OF SUFFOLK STEVE LEVY SUFFOLK COUNTY EXECUTIVE RECEZVED BOARD OF APPEALS THOMAS A. ISLES, A.I.C.P DIRECTOR OF PLANNING December 21, 2009 Town of Southold ZBA PO Box 1179 Southold, NY 11971 Att: Gerard Goehringer, Chairman Dear Mr. Goeringer: Pursuant to the requirements of Sections A-14 thru A14-25 of the Suffolk County Administrative Code, the following application submitted to the Suffolk County Planning Commission is to be a matter for local determination as there appears to be no significant county-wide or inter-community impact. A decision of local determination should not be construed as either an approval or disapproval. Applicant Municipal File Number Edson, Lewis #6353 TRK:ds Very truly yours, Thomas A. Isles Director of Planning Theodore R. Klein Senior Planner LOCATION MAILING ADDRESS H. LEE DENNISON BLDG. -4TH FLOOR P.O. BOX 6100 (631) 853-5191 100 VETERANS MEMORIAL HIGHWAY HAUPPAUGE, NY 11788-0099 TELECOPIER (631) 853-4044 MARTIN H. SIDOR Chair WILLIAM J. CREMERS KENNETH L. EDWARDS JOSEPH L. TOWNSEND DONALD J. WILCENSKI PLANNING BOARD OFFICE TOWN OF SOUTHOLD MAILING ADDRESS: P.O. Box 1179 Southold, NY 11971 OFFICE LOCATION: Town Hall Annex 54375 State Route 25 (cot. Main Rd. & Youngs Ave.) Southold, NY Telephone: 631 765-1938 Fax: 631 765-3136 To: From: Date: Re: MEMORANDUM Leslie Weisman, Chair, Zoning Board of Appeals Members of the Zoning Board of Appeals Heather Lanza, AICP, Planning Director ~,,~ March l 7, 2010 SCTM# 1000-102-2-16 RECEIVED BOARD OF APPEALS In response to questions raised at the recent Planning Board meeting where the application referenced above was discussed (at the request of the applicant), I respectfully submit the following information: With regard to the "60/40" requirements of Chapter 72, the applicant should provide an inventory of the trees planted and currently available for harvest, and their value. In addition, the value of the omaments and other accessory items offered for sale must also be provided. This information is necessary to help the Zoning Board determine whether the agricultural products (the trees) comprise at least 60% of the gross value of products offered for sale. To determine full compliance with Chapter 72, the applicant must also demonstrate that the farm on which the agricultural products are grown meets the agricultural production and income standard set in the Definitions section for Farm Stand, which I believe is the same standard that must be met for a property to get the agricultural property tax exemption from the assessors. It is interesting to note the original intent of the legislators when they passed the farm stand code. In discussions with the Town Supervisor regarding the intent of the recent updates to the Farm Stand code, he indicated that the his recollection was that the Town Board envisioned a farm stand would carry at least 60% bona fide agricultural products grown on site. He went on to say that the Town Board likely never considered the prospect of having all of the crop located in the field, and all of the accessory products occupying the farm stand itself. In other words, they probably didn't consider the situation where there would be a farm stand without the actual farm products in it, and especially did not anticipate such a large building dedicated to the accessory products not produced on the farm. It seems other tree farms have much smaller, incidental retail areas. The size of the building is also an issue. The code states in 72-8 Maximum size of farm stand, that "in all cases, farm stand structure(s) shall not exceed 3,000 s.f. in total floor area, as defined in Chapter 280." Does "farm stand structure" mean the entire building is counted in the total floor area? If so, the current building would not meet this code requirement. ~ ~ ~.~LANNING BOARD MEMBER~ MARTIN H. SIDOR Chair WILLIAM J. CREMERS KENNETH L. EDWARDS JOSEPH L. TOWNSEND DONALD J. WILCENSKI PLANNING BOARD OFFICE TOWN OF SOUTHOLD MAILING ADDRESS: P.O. Box 1179 Southold, NY 11971 OFFICE LOCATION: Town Hall Annex 54375 State Route 25 (cor. Main Rd. & Youngs Ave.) Southold, NY Telephone: 631 765-1938 Fax: 631 765-3136 To: MEMORANDUM Leslie Weisman, ZBA Chair Members of the Zoning Board of Appeals From: Martin H. Sidor, Chair Members of the Planning Board Date: March 8, 2010 Re: Request for Farm Stand Use SCTM#1000-102-2-16 Zone: R-80 30105 State Route 25 Cutchogue The Planning Board has received your request for comments regarding the above referenced application for a Farm Stand use. As proposed the applicant is seeking to use a portion of an existing building as a farm stand. This application has been reviewed for site development and the following comments are offered for the Board's consideration. The application does not meet the requirements pursuant to Southold Town Code §72-4 (Definitions) and §72-7 (Farm Stand Offerings). Based upon this non-conformance it appears that the applicant will be required to seek a "use" variance for the Town of Southold Zoning Board of Appeals (ZBA). Should a "use" variance be granted by the ZBA, the application will need to be site planned accordingly by the Town of Southold Planning Board for site plan approval. We hope that the information provided to you is helpful. Should you have any questions or need additional information, please contact the Planning Department. Thank you. FORM NO. 3 TOWN OF SOUTHOLD BUILDING DEPARTMENT SOUTHOLD, N.Y. NOTICE OF DISAPPROVAL RECEIVED BOARD OF APPEALS Date: September 21,2009 To~ Lewis Edson P.O. Box 939 Cutchogue, NY 11935 Please take notice that your application dated August 28, 2009: For a permit for a Farm Stand at: Location of property: 30105 Route 25 Cutchogue, NY County Tax Map No. 1000 Section 102 Block 2 Lot 16 Is returned herewith and disapproved on the following grounds: The proposed use of the existing building as a farm stand is not permitted per Chapter 72, Axt. 1, Section 72-4, definitions. Also pursuant to Art. 1, section 72-6(C), requires site plan review: The proposed use does not meet the definition of a farm stand. Authorized Signature Note to Appileant: Any change or deviation to the above referenced application may require further review by the Southold Town Building Department. Cc: f'de, ZBA, planning For Of. ftc¢ Use Only APPEALS RECEIVED ~olRo OF AP~tS File~ By: Date Assigned/Assignment No. Parcel House No. 3f/f,~treet ~ -f~ ~z~ ~ Hamlet S~ 1000 S~fion/~ZBlock ¢ Lot(s) / 6 Lot S~e~ ~fep~e. I ~) ~P~'H ~EN DE~A~ON OF ~1'~ B~,~G Applican~ner(s):. ~ ~ ~/~' ~ ~ Mailing Address: Telephone: NOTE: In addition to the above pleas~ complete below if application is signed by applicant's attorney, agent, architect, builder, contract vendee~ etc~ and name of person who agent represents: Authorized Representative: for ( ) Owner, or ( ) Other: Address: Telephone: P!gase check box to specify who you wish correspondence to be mailed to, from the above names: .;~]SAppficant/Owner(s) [] Authorized Representative 13 Other Name/Address: WHEREBY THE BUILDING INSPECTOR DENIED AN APPLICATION DATED FOR: [] Building Permit [] Certificate of Occupancy [] Pre-Certificate of Occupancy [] Changeof Use [3 Permit for As-Built Construction []Other: Provision of the Zoning,Ordinance Appcaled; Indicate Article, Section, Subsection of Zoning Ordinance by numbers. Do not quote the code. Article / . Section 280- '7 .9 - q '/ ~ Subsection Type of AppeaL An Appeal is made for: ~A Variance to the Zoning Code or Zoning Map. [] A Variance due to lack of a~ccss required by New York Town Law-Section 280-A. ~[nterpretation of the Town Code, Article / Section '~.~ -[ ~'~7,.~ '~ [] Reversal or Other · -- A prior appeal B has ~.has not been made _with respect to this property UNDER Appeal No. __Year__. (Please be sure to research before completing this question or call our office to assist you.). Name of Applicant: -~/~-/~/~ ~).f~,L~TM # ZBA File # REASONS FOR APPEAL (additional sheet~ maF be used with.prcparer'$ signature): AREA VARIANCE REASONS: ~ECEZVED $O'~,~*~D OF APPEA~ (1) An undesirable change will not be produced in the CHARACTER of the neighborhood or a detriment to nearby propertie~ if granted, because:~ ? (2) The benefit sOUght by the applicant CANNOT be achieved by some method feasible for the applicant to pursue, other than an ai'ea variance, because: (3) The amount of relief requested is not substantial because: (4) The variance will NOT hage an adverse effect or impact on the physical or environmental C°ndition~ in the neighborhood or district begause: ~ .9 ( ) alleged difficulty been self-created? ( )Yes, or /~)jNo. Are there Covenants and Restrictions concerning this land:/]~VNo. D Yes (please furnish cqpt/). 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. Check t~is box ( ) IF A USE VdRiANCE iS BEiNG RE~u~TED, ddyjD ~ COMPLETE THE ~ov~{l~t~Fe ~fAppellant or Authorized Agent $~,rn to ~E~.~ me tbis~~''~ ~Ag.nt mu;t submit written ^ut,oHzatlon from Ow.er) Notary P~tbllc DEBORAH H, VANDUZ. ER ~olmy RJ Statee~ New Yod( Commission Expires Ap~f 28, 2012 APPLICANT,S PROJECT DESCRIPTION (For ZBA Reference) I. For Demolition of Existing Building Areas Please describe areas being t~moved: 17. New Construction Areas (New Dwelling or New Additions/Extensions): Dimensions of first floor extension: Dimensions of new second floor: Dimensions of floor above second level: Height (from finished ground to top of ridge): Is basement or lowest floor area being constructed? ffyes, please provide height (above ground) measured from natural existing grade to first floor: HI. Proposed Construction Description .(Alterations or Structural Changes) (attach extra sheet if necessary). Please describe building areas: fsi ~umbor of.~.,F~grs and General Characteristics BEFORE Alterations' Nu~nber of Floors and Changes WITH Alterations: Z59"~'d,~ ,~,,~.~ IV. Calculations of building areas and lot coverage (from surveyor): Existing square footage of buildings on your property: ~ Proposed increase of building coverage: ,/~-'~.,~.~r'- ' - Square footage ofyour lot: ~ -T~7~'- ,~ Percentage of coverage of yoUr tot by building area: ~_ ,/ v. P-rposeofNewCons,r,c,o... VI. Please de$cribe the land contours (flat, slope %, heavily wooded, marsh area, etc.) on your land and how it relates to the difficulty in meeting ihe code requirement(s): ? ~lease submit seven (7) photos, labeled to show different angles of yard areas after staking for new construction), and photos of building area to be altered with yard view. 7/2002; 2/2005; 1/2007 corners ~ECEIVED 5OARD OF Appr*/~; ~ QUESTIONNAIRE FOR FILING WITH YOUR Z.B.A. APPLICATION A. Is the subject premises listed on the real estate market for sale? 13 Yes [~o ' B. Are there any proposals to change or alter land contours? /l~No 13 Yes, please explain on attached sheet. C. 1] Arc there areas.that contain sand or wetland grasses? i ~ .Ar.e. these areas, shown on the map submitted with this applieationV ~//~ 4) If your property contains wetlands'or pond areas, have you contacte~ .Tow? Trustees for its determ/nation of jurisdiction? ///~ Please confirm status of your tnqmry or application with the Trustees: and if issued, please attach eop~es of permit with conditions and approved map. D. Is there a depressidn or sloping elevation near the area of proposed construction at or below five feet above mean sea level? E. Are there any patios, concrete barriers, bulkheads or fences that exist o,n thc'survey map that you are submitting? ~/t7 and are not shown -. (Please show. area of these struelares on a diagram if any exist. Or state "none" on the above line, if applicable.) F. Do you have any construction taking place at this' time concerning your premises? If yes, please submit a copy of your building permit and map as approved by the B~lding Department and describe: G. Do you or any co-owner also own other land close to this parcel? ,If yes, please label the proximity of your lands on your maP with this application. H. Please list present use or operations conducted at this parcel ~?~/~ ~//n~ f , ^,~. =x.~ung~ s~fil~amuy; proposed: samewith garagedrpoo~orgtherd~"p~n., /t~ Au~onzea ;5~gnaRire and D'gte t / 2/05; 1/07 8ECEIVED 8Ob, RD o~ APPF.~l~ ?.~al ~ pre~=A~ ~d use ~ ~01~ of.~ (des~be): ~t~e at,on Is i~ ~e ~asial Ama, and you are a state agency, cempIete the C~stal Assessmen{ Fo~ be[ore proceeding ~th Ibis assessm~t :~t~.tu~l U UWNER, CONTRACT V ' I I l ~ To~ of 8ou~old's ~e fE~ics pro~bi~ c~o~ of ~t on ae pm ofTo~ a~p~ts . ~d employe~. ~e p~o~ of ~i~ f~ is to pmhdq ~fomfion,-whch ca Sled ~e Tom of . . :. . possible conflic~ ofini~est ~d a]ow it m t~e whatev~ ' ' ' aco~ ~s n~ to aVOid same. ~A~ OF.~PLICA~ON: (Check all ~at apply.) 8peo~' E~cepfion *O~er . ~(~rila~omhip ~ ~7 offic~°ugh~ employeeYbUr ~mp~y,of.the To~'~f SOumold~-~blina '~~~clud~' b~Parent' or chiM) have a mmnlomt b~on in whiqh ' Sbam~ '- NQ.. . ~. If you answerM "~E~'[ complete the balance off,fo:tm and'dat, and ~ign where indicated Nam ofpemon employ~ by ~e To~ oi 8ou~Id: Title or position of that person:_. __ ~' . __ - . d ~e T6~ 0ffie~ or mployee: Eider check. ~e appropriate lin, A ~ugh D' ~elow) an~or ~e Tom offic~ or e~loyee or his or hm~e, ~ibl~g, p~en[.:m-~hild ia Check all ~at _ A) ~e o~'of ~eat~'~ 5% of~e sh~ of~c co~0mte stock of ~e applioant (wh~ &c'a~liC~t (w~ ~e appt~t.is not a c0~mfi0n)~ -' ' DES~ON OF ~LATIONg~ AGRICULTURAL DATA STATEMENT ZONING BOARD OF APPEALS TOWN OF SOUTHOLD ~ECEIVED WHEN TO USE THIS FORM: The form must be completed by the applicant for any special use permit, site plan approval, use variance, or subdivision approval on property within an agricultural district OR within 500 feet of a farm operation located in agricultural district..411 applications requiring an agricultural data gtatement must be referred to the Suffolk County Department of Planning in accordance with Sections 239- m and 239-n of the General Municipal Law. l) Name of Applicant: ~/~z~f~,j 2) Address of Applicant: ~/.o 3) Name of Land Owner (if other ~ha.Tl applicant): / - 4) Address of Land Owner: -- 5) Description of Proposed Project: Location of Property ((oad and t~x m~p'numi~r): ~Is the parcel within an agricultural district? 4~,loJ~Yes If yes, Agricultural District Number / 8) Is this parcel actively farmed? [~]No [~(es 9) Name and address of any owner(s) of land within the agricultural district containing active farm operation(s ) located 500 feet of the boundary of the proposed project. (Information may be available tkrough the Town Assessors Office. Town Hall location /765-1937) or from any public computer at the Town Hall locations by vtewing the parcel numbers on the Town of Southold Real Property Tax System. Name and Address 3. (Please use back side of page if more than six property owners are identified.) The lot numbers may~be obtained, in advance, when requested from either the Office Board at 765-1938j~.~,f~ at 765-1809. of the Planning ~gnatur~ of Applicant ' Date' Note: 1. The local board will solicit comments from the owners of land identified above in order to consid~ the effect of the proposed action on their farm operation. Solicitation will be made by supplying a copy of this statement. 2. Comments returned to the local board will he taken into consideration as part of the overall review of this application. 3. Copies of the completed Agricultural Data Statement shall oe sent by applicant and/or the clerk of the board to the property owners identified above. The cost for mailing shall be paid by the applicant at the time the application is submitted for review. Failure to pay at such time means the application is not complete and cannot be acted upon by the board. 1-14-09 TOWN OF~ SOUTHOLD PROPERTY RECORD CARD · OWNER STREET ~ ~)l O--~ VILLAGE DIST SUB. ~ , E ACR. FORMER OWNER N ~0~ ~E, C~ e0,Tc~o.~u~' ~T~'s ~ ..,'. M~ r~o~d RES. j ~O S~S. VL COMM. CB.' MICS. Mkt Value N~ NORMAL BELOW ABOVE ... -~- , FAR~ Acre Value Per Value Woodlan~ FRONTAGE ON ROAD~ Meadowla~d DEPTH . . ~ DOCK Total ~ 5 ? o ~t M. Bldg. Exteneion Extension Extension Porch Gorage Patio O.B. Total /4)0 · COLOR Foundation ' ~JB~sement ~ Ext. Walls Fire Place Type Roof Dormer Recreation Room Bath Floors Interior Finish Heat Rooms 1st Floor Rooms 2nd Driveway TRIM Southold Town Zoning Board of Appeals October 20, 2009 RECE/VED ~OARD OF APPEALS Having been turned down for a "Farm Stand Permit" by the Southold Town Building Department. I hereby submit for your consideration of an appeal to that decision. The Building Department's reason is that I want to use a portion of my existing building and they interpret this ordinance to mean that the building must be 3,000 sq. feet or less. The Building Department sites chapter 72, Article 1, Section 72-4 as one reason for their denial. This section specifically allows Christmas trees to be sold. This section also defines "farm stand as any primary structure or portion..." When the wall goes up as shown on the stated plan it will be a portion. The other section sited for denial 72-6 (c) states that if all the proceeding requirements of the section are not met then a site plan will be required. I met all of the preceding requirements. 1. Bona fide agricultural lands. This property has been part of the agricultural tax exemption for many years. 2. Floor area not over 3,000sq. ft. Note the plan 2,998 sq. ft. 3. Set back at least 50feet. See plan 4. At least 4 offstreet parking. See plan 5. Also Vicki Toth Building Permit Coordinator went m the Planning Board with this file and was told it was not in there province. As I have been in many wineries within the town a portion is usually for sales and the balance of the building, generally, is used for the production of the wine and storage. My intent after many years of contention with the town is to comply with the new ordinance and partition offthe building and use the sales area to sell items commonly connected to Christmas i.e. ornaments and wreaths. ~c storage ~ ~1] ~ ~ed to store ~ ~pmcut. excess ~vc~to~ ~1 ~e~ fe~er etc. ~ere ~e ~o 14 f~t doors on ~e west end of~e b~lding for in. ss ~d e~ess. Having operated this business for the last 24 years I am convinced that without the store I could not sell enough Christmas Trees to make the operation viable. I generally open the store after Labor Day and the store attracts tourists mainly from further up the island. I have brochures in the store announcing the sale of Christmas Trees during the Christmas Season and allow customers to go into the fields during the nice weather and tag their tree to be harvested later. It is this attraction that builds the business for the trees. Without the store the business would not work. I have included in aerial photograph of the farm. I believe I have read the ordinances correctly and a permit should have been issued by the building depas hnent. October 20, 2009 RECEIVED ~OARD OF APPEALS Southold Town Zoning Board of Appeals Having been turned down for a "Farm Stand Permit" by tile Soutiold Town Building Department. I hereby submit for your consideration of an appeal to tiat decision. The Building Department's reason is that I want to use a portion of my existing building and tiey interpret this ordinance to mean that tie building must be 3,000 sq. feet or less. ~ I'have ada~ne~6'd'~copy of tile ordinance ' 'on". As I have been in many wineries within tie town a portion is usually for sales and tie balance of tie building, generally, is used for tie production of tie wine and storage. My intent after many years of contention witi tie town is to comply witi tie new ordinance and partition offtie building and use tie sales area to sell items commonly connected to Christmas i.e. ornaments and wreaths. The storage area will be used to store farm equipment, excess inventory for tie retail area, fertilizer etc. There are two 14 foot doors on tie west end of tie building for ingress and egress. ~6~ Having operated this business for tie last 24 years 1 am convinced tiat witiout tie store I could not sell enough Christmas Trees to make the operation viable. I generally open the store after Labor Day and the store attracts tourists mainly f~om further up tie island. I have brochures in tie store announcing tie sale of Christmas Trees during the Christmas Season and allow customers to go into tie fields during tie nice weatier and tag tieir tree to be harvested later. It is this attraction that builds tie business for tie trees. Witiout the store tie business would not work. I have included in aerial photograph of the farm. ~ined that their a.nprmaaLi~_llllLl!ecessal~y. TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN HALL SOUTHOLD, NY 11971 TEL: (631) 765-1802 FAX: (631) 765-9502 SoutholdTown.NorthFork.net Examined ,20__ Approved 20__ Disapproved a/c Expi ~ 20 BLDG. DEPT. I'OWN OF SOUI'NOLO BOARD OF APPEALS PERMIT NO. BUILDING PER'IF APPLICATION CHECKLIST Do you have--or need ~e follo~g, before applying? Bo~d of He~ 4 sets ofBuild~g Pl~s Pl~ng Bo~d approval Su~ey, Check Septic Fora N.Y.S.D.E.C. Trustees Flood Pe~t Store-Water Assessment Fora Contact: Building Inspector aPPLICATION FOR BUILDING PERMIT F/~//fi'] "~7"/f"~/(~ Date/,~5'~ INSTRUCTIONS ,20 a. This application MUST be completely filled in by typewriter or in ink and submitted to the Building Inspector w/th 4 sets of plans, accurate plot plan to scale. Fee according to schedule. b. Plot plan showing location of lot and of buildings on premises, relationship to adjoining premises or public streets or areas, and waterways. c. The work covered by this application may not be commenced before issuance of Building Permit. d. Upon approval of this application, the Building Inspector will issue a Building Permit to the applicant. Such a permit shall be kept on the premises available for inspection throughout the work. e. No building shall be occupied or used in whole or in part for any purpose what so ever until the Building Inspector issues a Certificate of Occupancy. f. Every building permit shall expire if the work authorized has not commenced within 12 months atter the date of issuance or has not been completed w/thin 18 months from such date. If no zoning amendments or other mgulations affecting the property have been enacted in the interim, the Building Inspector may authorize, in writing, the extension of the permit for an addition six months. Thereafter, a new permit shall be required. APPLICATION IS HEREBY MADE to the Building Department for the issuance of a Building Permit.pursuant to the Building Zone Ordinance of the Town of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations, for the construction of buildings, additions, or alterations or for removal or demolition as hamin described. The applicant agrees to comply with all applicable laws, ordinances, building code, housing cod,e,r~d regulations, and to admit authorized inspectors on premises and in building for necessary inspections. ~/r~.L.~/' V(Signature of/~pplicant or name, ifa corporation) (Mailir~g address of apj~cant) State whether applicant is owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or builder Name of owner of premises (As on the tax roll or latest deed) If applicant is a corporation, signature of duly authorized officer (Name and title of corporate officer) Builders License No. Plumbers License No. Electricians License No. Other Trade's License No. 1. Location of land on which proposed work will be done: House N~rnber ' 'Sheet' ' ~" -fta[nlet ' /-' County Tax Map No. lO00 Section /L/)~_ Block ~:~ Subdivision Filed Map No. L°tLoi ./~ .... ~ECETVED 3. Nature of work (check which applicable): New Building. Repair Removal Demolition 4. Estimated Cost _,~ ,~ ~J State existing use and occupancy of pr,e~rnises and intended use and occupancy of pro~oOg~DcoOn~s~tr~PPc~t~o~ a. Existing use and occupan < / b Im~ded use ~' · o occup~cy Addition Alteration Other ~ork 5. If dwelling, number of dwelling units If garage, number of cars Fee (Description) (To be paid on filing this application) Numb~ 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 e~xistin/~ structures, if any: Front Height ,-~0' NUmber of Stories Dimensions of same structure with alterations or additions: Front Number of S~oi~es Rear :~ii~ i}~: i .... ~ Depth t~ d ?r3 z Depth. Height. Dimensions of entire new construction: Front Height Number of Stories 9. Size of lot: Front //~/f Rear D~",~/ ~ z 10. Date of Purchase Name of Former Owner 11. Zone or use district in which premises are situated 12. Does proposed construction violate any zoning law, Ordinance or regulation? YES NO ~ 13. Will lot be re-graded? YES. NO. ~"/Wili excess fi!l be removed from premises? YES NO 14. Names of Owner ofpremises/~r'/,,~/,~ ~' .2~,P~',,-~dress ~"~'~ Phone No. Y~~3~ N~e of ~chitect ~ ' Address ' - Phone No Nme of Con,actor ~ Ad&ess .Phone No 15 a. Is this property within 100 feet of a tidal wetland or a freshwater wetland? *YES * IF YES, SOUTHOLD TOWN TRUSTEES & D.E.C. PERMITS MAY BE REQUIRED. b. Is this property within 300 feet of a tidal wetland? * YES NO ~ *, IF YES, D.E.C. PERMITS MAY BE REQUIRED. No 16. Provide survey, to scale, with accurate foundation plan and distances to property lines. 17. If elevation at any point on property is at 10 feet or below, must provide topographical data on survey. 18. Are there any covenants and restrictions with respect to this property? * YES · IF YES, PROVIDE A COPY. NO STATE OF NEW YORK) SS: COUNTY OF ) ,,~ ~.-'-/.*//.I & ~'-~2~,f./ being duly sworn, deposes and says that (s)he is the applicant (Name of individual signing contract) above named, (S)He is the (Contractor, Agent, Corporate Officer, etc.) of said owner or owners, and is duly authorized to perform or have performed the said work and to make and file this application; that all statements contained in this application are tree to the best of his knowledge and belief; and that the work will be performed in the manner set forth in the application filed therewith. ~ S~.~tat~re o f App~c~t~~ TOWN OF $OD'i'~OLD BUILDING DEPARTMENT Town Clerk's Office $outhold, N. Y. Cerlificate Of Occupancy THIS CERTIFIES that the building located at . NZ~ .Fm~.]Roa4. ~2.~).., Street o . ~eov-~'eael~ta_$o~ ona f~y d~e3J.~n~ & House' eode conforms substantin]ly to the ....... ~'~' ~' '~ '~ ~ nous~.n b dateU~..., b. efora .apr;il. ~ 19.57. pursuant to which ~- oeeupanay · z693o. dated ......... ~.. ~2 ..... , 19.76., was izsued, and conforms to all o! the reqdire- ments of the applicable provisions of the law. The occupancy for which this certificate is issued is .l~ri~rate. one. t'am$~.¥..dvel, llng ....................................... The certificate is issued to I~i'O~.I~S. p., .Ed, sQI~ ..... QWll~t'. ........................ (owner, lessee or tenant) of the aforesaid building. Suffolk County Department of Health Approval .pro.-..exis~,tlg .................... UNDERWRITERS CERTIFICATE No...Pl'~.-..!l.t.~.t.l~. g ........................... HOUSE II-UMBER ..... ~623 ~;... Street .... }ial~n..l~oad.....Cg.t.e.h. 9i, k~. ............ Building Inset .......... TOWN OF ~OUTHOLD BuiMing Department Town Clerks Office $outhold, N, Y. 11971 A. This application must be filled in typewriter OR ink, and submitted in duplicate to the Building Inspector with the following; for new buildings or new use: h Final survey of property with accurate location of all buildings, property lines, streets, and unusual natural or topographic features. 2. Final approval of Health Dept. of water supply and sewerage dlsposal~S-9 form or equal). 3. Approval of electrical installdtlon from Board of Fire Underwriters. 4. Commercial buildings, Industrial buildlngs, Multiple Resi6ences and sirnilar buildings and instal~atiofls, a certificate of Code coenpliance from the Architect or Engineer responsible for the building. .5. Submit Planning Board approval of completed site plan requirements where applicable. B. For existing buildings (prior to April 1957), No~-conforming uses, or buildings and "pre-existing" land uses: I. Accurate survey of properi%, showing all property lines, streets, buildings and unusual natural or topographic features. 3. Date of any housing code or safety inspection of buildings or p~rnises, or other pertinent in- formation required to prepare a certificate. C. Fees: 1. Certificate of occupancy $5.00 2. Certificate of occupancy on pre-existinn dwellino_or land use $5.00 3. Copy of certificate of nccupancy $1.00 Dote .M...a. r ch 9 19 7...6. ............ New Building .................... Old or Pre-existing Building ........ .X.. ................. Vacant Land ..;~;.~.~,&..~,. Location Of Prope.y ...... .~.~h.~.s.&~..e.~.~.~.~..a.~.n.~B.~..~.c.u..~.h~.~.~tg~L~ .,d........~.,~.~.~.?-- ~- ' ' .................... ~ ........................................... '~'"X~'? ............................. Permit No ..................... Date Of Permit .................... Applicant ,,, ,I~,,,~.~:,,s,,,,P.,~,.,I~,,d,,~,,~,.~, ...................... Fee Submitted $ ,.,5,,,,,0,,0,. ........................ to before me this Not~:ry Public ......... $,~ £Io~ .......... Count',' (stemp or seal) 0 FORM NO. 4 TOWN OF SOHTHOLD BUILDING DEPARTMENT Office of the Building Inspector Town Hall Southold, N.Y. Date AUGUST 21r 1990 THIS CERTIFIES that the building Location of Property_. 30105 MAIN ROAD House No. County Tax Map No. 1000 Section 102 ADDITION CUT~G~Er NEW YORK Street Hamlet Block 2 Lot 16 Subdivision Filed Map NO.__Lot NO. conforms substantially to the Application for Building Permi~ heretofore filed in this office dated MAY 22r 1990 pursuant to which Building Permit NO. 19069-Z dated JUNE 1~ 1990 was issued, and conforms to all of the requirements of the applicable provisions of the law. The occupancy for which this certificate is issued is ADDITION TO AN EXISTING AGRICULTURA~ BUILDING AS APPLIED FOR The certificate is issued to LEWIS EDSON (owner) of the aforesaid building. SUFFOLK COUNTY DEPARTMENT OF HEALTH APPROVAL UNDERWRITERs CERTIFICATE NO. PLUMBERS CERTIFICATION DATED N/A N/A lldlng Inspector Rev. 1/81 3. Nature of work (check which applicable): New Building RepaJr .............. Rl~mov3i .......... Addition ~ ~- ~JmatedCost.~'. Aceessot~ Bu~dln8 ......... ~ence ...... Other If =~e. number of c=~ ........... ~.'~;~'" . , ' Hci=ht ~'~ ~ ..... ~.tcs, ]. any: l'tont .~ ...... ~ ~ * - 'Rear ~O ' Y~ . ~' ' '.' "~'/ .......... 9. Size of lot. Front' '~[~u~nber ° f Stories . . Z.. " . ' ......... P ...... ~ .......... ~ Date ot~utca~e ..... Rea..~ ................. Depth .~..~ '' t 1. Zone or u~ d~tfic~ ~ ~'J-' ~ ..... . .............. ~. ~e of Foyer Owner ........... ~ o~ De t~mded . .(~ ....................... Wdl cxce~a ~11 be c~ovcd from rem scs PLOT DIAG ~M · (Name of individual signing coL't;='c'ti ..... ~,'-~. · be ni~g duly sworn, deposes and says that he ~ the applicant ~boyc named. is ~h~...~ ................................ :.. ................... ; ........... r~ S,~id ~Wncr or ownem, ~d is duly au orlzed l* -e-r- , . poratc officer, etc ) . r .......... /otk w~l be per bm ed n ti c m~ ......... ,.- :..~s a~uc3t~n ~re /rue to the best of his know cd ....... ~,~. and file fins ....... ......... .... "~ ...... ~""-7:~'.'co.,w ~ - , _ ~ INC. FORM NO. 4 TOWN OF SOUTHOLD BUILDING DEPARTMENT Office of the Building Inspector Town Hall Southold, N.Y. Certificate OI~ Occupancy N°'"'Z'I'5'"9'5 ........ Date .... ~anuary 13, 1987 . THIg CERTIFIES that the bullding ..... .A.q.c.e.s.s.o..ry nursery building ' Location of Ptoperty 29925 HAIN ROAD CUTCHOG'UE ......... ~?&J,; ~d .......................~k;ii ............................ County Tax Map No. 1000 Section I 02 . .Block 02 Lot 16 H~rolet Subdivision ............................... Filed Map No ......... Lot No .............. conforms substantially to the Application for Building Permit heretofore filed in this office dated .... .-L"n~. S.... ?.a.~., .. pursuant to which Building Permit No. 15 0 3 7 z dated ...4oog..~7. ,..I. 9..8.6 .......... ·, was issued, and conforms to all of the requirements of the applicable provisions of the/aw. The occupancy for which this certificate is issued is Accessory nursery building ......... The certificate isissued to ...~.F..~.g.R.T.~..p.. EDSON (SANTAS CHR! STHAS TRgES ) of the aforesaid building.' ..... /o~,~*:, ~'~'~ ..................... Suffolk County Department of Health Approval N/A UNDERWRITERS CERTIFICATE NO ..... N ? 8 0 3 5 2 PLUHBERS CERTIFICATIOR DATED: N/A 1/81 Bu 1 ~ '"~'lnsPector .......... ~A~4'THONY B. TOHILL, P.G. ATTORNEYS AT LAW 12 FIRST STREET Mr. Gary Fish Southold Town Hall Building Department 53095 Main Road Southold, NY 11971 Dear Mr. Fish: I have been retained by Lou Edson to examine the zoning status of Santa's Christmas Tree Farm and I am in the process of doing that. By this letter I am advising you that to the extent appropriate I will be asking the Town to consider an amendment to the Zoning Ordinance to allow the use to continue. ABT/bb Very truly yours, Anthony B. Tohill -~qTHONY B. TOHILL, P.G. May 15, 1997 Mr. Gary Fish Southold Town Hall Building Department 53095 Main Road Southold, NY 11971 Dear Mr. Fish: With respect Santa's Christmas Tree Farm, please be advised that we have today ordered a survey of the property from Van Tuyl which will now be used to submit an application for rezoning of the southerly portion of this property. I will continue to advise you as we take each step in the rezoning application process. ABT/bb Very truly ~ Anthony B. Tohill PLANNING BOARD OFFICE TOWN OF $OUTHOLD Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-3136 Telephone (516) 765-1938 FROM: Bennett Oriowski, Jr., Chairman~, TO: Gary Fish, Building Inspector RE: Grace Edson, Christmas Tree Farm and Retail Store Main Road, Cutchogue Zoning District: Low Denqity Residential R-80 SCTM# 1000-2-16 DATE: February li, 1997 The above retail store is conducting a business in a building that has a Certificate of Occupancy for an accessory nursery building CO # Z-15195, and s CO # Z-19311 for an addition to existing agricultural building. After repeated attempts to correct this situation have been made to no avail, the Planning Board feels that the Building Department should revoke the current Certificate of Occupancy and issue a violation based on the fact that a retail store is not permitted by the CO. FEE: t ' Town HaU, 53095 Main Road P O, Box 1179 Soulhold, New Yod~ 1197{ OFFICE OF THE BUILDING INSPECTOR TOWN OF SOUTHOLD February 26, 1997 Mr. Lewis Edson PO 1526 Southold NY 11971 SCTM ii 1000-2-16 Let this letter serve as a written follow up to our conversation on Monday, Feb~iay 24, 1997 regarding the agricultural storage building at 30105 Main Road Cutchcgue, Tax Map #102-02-16. As we discussed on Monday it has been b~ought to the attention of the Building Depa~ment by the Plann/ng Board that the use of the above described building is in violalion of its cel~ificate of occupancy. The CO clearly indicates the building is classified as an a~ricultural building, reference CO iiZ19311 and Z15195. Enclosed ars copies of these COs. I trust they aid in clarification. As a result, the planning Board "feels that the Building Department should revoke the current Ce~dficate of Occupancy and issue, a violation". After conferring with Laury Dowd, the Town Attorney, on this matter and also speaking with Ed Forrester, the Town Investigator, and yourself I feel it to be counter productive and not in keeping with a philosophy of voluntary compliance to issue any violations at this time. Instead I respectfully request of you a reply letter as to your intentions and plan of action to resolve this matter. I also request a meeting with you on the site so I can see first hand what type of operations you are conducting. Please keep in mind that I take the recent correspondence from the Planning Board seriously and find merit in their concerns and recommendations. timely fashion so this issue can be resolved to the satisfaction of all parties involved. I wait for your anticipated written reply. Respectfully, Southold Town Building Department cc: plannln~ Department Town Atto~:'ney Town Investigator Supe~sor Jean Co~n I~'O~lW NO. ~ TOWN OF $OUTHOLD BUILDING DEPARTMENT TOWN HALL SOUTHOLD, N. Y. BUILDING PE~IT (THIS PERMIT MUST BE KEPT ON THE PREMISES UNTIL FULL COARPLETION OF THE WORK AUTHORIZED) N~ ~9404 Z Dote ..... ..~.[... ................. 19..~..~ Perrnissioo is hereby gronted to: ....... ...... ~..~.~..~..~. ....... ~........~.......~.. ....... .~.~~....~.:..%_U..~.]..L. o, ~,,,, ,~o,,~ o, .....~..~.~..~.~,~. .......... ~.~....~-t ........... C~...,.~~ ......... County Tox Mop No. 1000 Section ..... /...6.....~. ....... Block ...... .~....~ ......Lot No...../...~ .............. pursuant to application doted .......~. ~.~. ............. .[..~ .................... 19.1~....~.., and opproved by the Building Inspector. Building fmpector Rev. 6/30/80 3. ature of work (check 'h' h pplicable): New 13uilding .......... Addition .... , ...... ......... '. 4. Estimated Cost ....... ~ .o. ........................... Fee ..................................... (m be paid on filing this application) $, ]fdwclling. numberofdwcllingunits.....~.'-c7~<... ....... Numberofdwcllingunitsoncachfloor ~ ........ If garage, number of cars ..... - .................................................................. . 7, Dimensions of !:x, istingstmctures, ifany: Front..,~..~R. ....... Rear ..: ............ Depth .--~.~..ii .... Dimensions of same structure with alterations or additions: Front .w ............... Rear ................... Depth ........ ~ .......... Height .. . . ................... Number of Stories ....................... 8. Dimensions ofentii'c new c0nstmction: Front ...... ~ ...... Rear ............... Depth ............... Height ........ ~ .... Number of Stories ..... ~ ....... ; ............................. ' ............ 12. Does proposed construction violate an), zoning law. ordinance or regulation: .. ~.. ~ ........................ .~._ 13. Will lot be regsaded ..................... ~ ...... Will excess fill be removed from premises: Yes .... Name of Architect ..... ~ ................... Address ..... ~ ........... Phono No ................. Name of Contractor .... ~ ....... 2 ........ Address ...... ~ .......... Phone Ilo .......... t~ · · PLOT DIAGRAM property lines. Give street and block number or description according to deed, and show street names and indic"ate whether interior or comer lot. STATE OF NEW YORK, COUNTY OF ................. S.S ................................................. being duly swam, deposes and says that he is the applicant (Name of individual signing contract) above named. I~ is the ..................................... (Contractor, agent, corporate officcr, etc.) of said owner or owners, and is duly au ~orized to pa~form or bare performed the said work and to make and file this application; that all statctncnts contained in this application are truc to thc best of Ilia knowledge and belief; and that the work wdl be performed in the manner set forth in the application filed therewith. Sworn to before me this ' ', ....... .... ......... Southotd Town Board Board Iv~mg 0~ s~p~mber 9, 2008 RESOLUTION 2008-877 Item # ADOPTED ~on~o OF ~PPEAI~ DOC ID: 4227 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2008-877 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON SEPTEMBER 9, 2008: WHEREAS there has been presented to the Town Board of the Town of Southold, Suffolk CountY, New York, on the 12t~ day of August, 2008 a Local Law entitled ~'A Local Law in relation to Regulations Governing Farm Stands" and WHEREAS the Town Board of the Town of Southold held a public hearing on the aforesaid Local Law at which time all interested persons will be given an opportunity to be heard, now therefor be it RESOLVED that the Town Board of the Town of Southold hereby ENACTS the proposed Local. Law entitled, "A Local Law in relation tO Regulations Governing Farm Stands" which reads as follows: LOCAL LAW NO. 12 OF 2008 A Local Law entitled, "A Local Law in relation to Regulations Governing Farm Stands". BE IT ENACTED by the Town' Board of the Town of Soutbold as follows: Chapter 135 of thc code of the Town of Southold is hereby repealed in its entirety. A new Chapter 72 of the Code of the Town of Southold is hereby adopted as follows: !- §72-1. Title. This law shall be known as the "Agricultural Uses Law". II. §72-2. Purpose. Regulation of agricultural uses in the Town of Southold is necessary to facilita~'e and encourag,, bona fide agricultural operations whi!e providing for ~he health, safety and welfare of the Town's ,residents and its visitors. Farm stands are an important part of the Town's agricultural base and Generated September 12, 2008 Page 60 Southold Town Board - Let ~0~,' Board lv~ing of September 9, 2008 BOARD OF APPEALs character, and are increasingly vital to the viability of the agricultural industry in the Town. The first Chapter of this proposed Local Law governing agricultural uses will pertain to farm stands, and require, among other things, that they be part of active farming operations.within the Town. §72-3. Statutory authorization. This local law is enacted pursuant to Section 10 of the Municipal Home Rule Law to promote the public health, safety and general welfare of Town citizens through land use regulations intended to govern agricultural uses within the entire Town. The variance, provision of this local law shall supersede any inconsistent portions of the Town Law Section 267-a and govern the subject of variances in this local law. §72-4. Definitions. As used in this Chapter, the following terms shall have their meanings indicated: AGRICULTURAL PRODUCTION - The production for sale of crops, livestock or livestock products, which shall include but not be limited to: (a) field crops, including eom, wheal, oats, rye, barley, hay, potatoes and dry beans; (b) fruits, including apples, peaches, grapes, cherries, tomatoes and berries; (c) vegetables, including snap beans, cabbage, carrots, beets and onions; t'd) horticultural specialties, including nursery stock, ornamental shrubs, omamental trees and flowers; (e) livestock and livestock products, including cattle, sheep, hogs, goats, horses, poultry, ratites, such as ostriches, emus, rheas and kiwis, farmed deer, farmed buffalo, fur bearing. animals, milk eggs and furs; (f'} maple sap; {g) Christmas trees derived fi.om a managed Christmas tree operation whether dug; for transplanting or cut fi.om the stump; (h) aquaculture products, including fish, fish products, water plants and shellfish; (i) woody biomass, which means short rotation woody crops raised for bioenergy, and shall include farm woodland. AGRICULTURAL USES - Activities devoted primarily to production, processing, marketing and sale of agricultural and aequacultural commodities, including any and all agricultural, horticultural, vineyard products, eom for grain, oats, soybeans, barley, wheat, poultry or poultry products, bees, maple syrup, christmas trees, livestock, including swine, and honey, sold in the state either in their natural state or as processed by the producer thereof but does not included Generated September 12, 2008 Page 61 Southold Town Board - LeO RECEIVED =~t~ t~j ~ i ~ k0[~ Board IrOning of September 9, 2008 BOARD OF APPEALS milk, timber or timber products, other than christmas rices, all hay, rye and legumes. FARM STAND - Any primary struct e~or porti2n o~f a2cture greater than 80 square feet in area used for the purpose of retail sale of locally produced agricultural product grown by the owner or lessor of the structure, as well as the accessory sate of processed agxicultuml products, agriculture-related products and incidental accessory items. For the purposes of this Chapter, a farm stand shall be limited to structures operated by an applicant on a parcel with either: not le.qg than seven acres of land used as a single operation in the preceding two years for the production or sale of crops, livestock or livestock products of an average gross sales value of ten thousand dollars or more; or, land of seven acres or less used as a single operation in the preceding two years for the production or sale of crops, livestock or livestock products of an average gross sales value of fifty thousand dollars or more. PROCESSED AGRICULTURAL PRODUCTS - Agricultural product which has been converted from its original state into a distinct product by techniques such as cooking~ distillation. fermentation, crashing and straining. Examples of processed agricultural product include, without limitation, iams, jellies, cheeses, potato chips, wine and other alcoholic beverages. Simple washing, cleaning, arrangement or packaging of agricultural product shall not cause the product to be considered "processed" under this definition. RETAIL SALES AREA - Portions of a farm stand operation, usually covered~ which are dedicated to the direct marketing and sale of farm stand products, including public rest rooms, but excluding storage areas, temporary display areas and. other areas not accessible to the general public. ARTICLE 1 - FARM STANDS 872-5. Farm Stand Permit Required. A. No pemon shall erect, place or operate a farm stand without the Building Department's issuance of a farm stand permit for the farm stand operation. A farm stand permit shall be subject to revocation if the farm stand fails to operate in compliance with the requirements set forth herein. · Generated September 12, 2008 Page 62 Southold Town Board 2 Lettee R£CEIVED d~63C'3 Board Metl~ng of September 9, 2008 BOARD OF APPEALS The Building Department .~hall only issue a farm S~d~ermit ~ a party engaged pu~oses of this ~icle, "bona fide a~c~al production" s~ll be limited to thc operation, ~n the To~ of Sou~ol~ of eider: .................... A farm stand existing as of the date of adoption of this Article which does not meet the requirements of this Article shall be deemed to be a ~0r~g~ ~ Notwithstanding the contrary provisions of this Article, a farm stand legally existing in the ~,.~_ -~-~l~_~, -, .~.~_ ~]IjL~ ...... .=.__ .~_.~~i cumulatively, of the total area of the farm stand structure(s) legally existing as of January 1, 2008, §72-6. A. Farm Stand Permits Issued Without the Requirement of Site Plan Approval. A farm stand permit shall be issued to applicants meeting the following requirements, and such farm stands shall not require site plan approval from the Planning Board, notwithstanding the provisions of Chapter 280, Article XXIV: (1) The farm stand is located on lands used in bona fide agricultural (3) (4) production by the owner or lessee of the property. The total floor area, as defined in Chapter 280, of the farm stand structure(s) does not exceed 3,000 square feet. The permanent farm stand structure is set back at least fifty feet from the road. The farm stand parcel provides at least four off-street parking spaces, and Generated September 12, 2008 Page 63 Southold Town Board - Le~ RECEIVED~ _ ~ NO~ ! 9 200q Board Iv~ing of September 9, 2008 Co BOARD OF APPEALS also provides adequate space that may be used for unimproved on-Site parking equivalent to one parking, space for each 200 square feet of retail sales area. '" ~ Retail sales operations that do not meet the definition of a farm stand pursuant to this Chapter, as well as farm stands that do noi meet the requirements of§ 72-6A, shall be subject to the full site plan requirements of Chapter 280, Article XXIV, as well as all other zoning and use restrictions of Chapter 280 or the Town Code. 872-7. Farm Stand Offerings. All farm stands shall conform to the following product offering restrictions: A. At least sixty percent of the gross dollar value of all items offered for sale at farm stands shall consist of agricultural products grown by the farm stand operator within the Town of Southold. B. No more than forty percent of the gross dollar valu6 of all items offered for sale at a farm stand may consist of the following items only: (1) Agricultural products grown by a person Or entity, other than the farm stand operator, engaged in bona fide agricultural production within the Town of Southold, and not including agricultural products not grown within the Town of Southold; (2) ltems manufactured or processed from the agricultural products grown by the farm stand operator, or manufactured or processed from products grown by a person or entity, other than the farm stand operator, engaged in bona fide agricultural production within the Town of Southold; (3) Clothing, apparel and other similar items, but limited to such items that promote the specific farm stand site or operator, and souvenir items of the farm stand; and (4) Other accessory items, but limited to items complementary to the specific farm stand agricultural operation, such as decorative housewares, planters and like items. Generated September 12, 2008 Page 64 Southold Town Board - Lette{[[~ RECEIVED"-~' 3 5~ B d Boar Me~ng of September 9, 2008 ~3OARD OF APPEALS §72-8. Maximum Size of Farm Stand. In all cases, farm stand structure(s) shall not exceed 3,000 square feet in total floor area, 'as defined in Chapter 280. 872-9. [Reserved] §72-10. [Reservedl §72-11. Variance Procedures. Any farm stand that is found not to meet the requirements of this Article may appeal such decision or seek a variance therefrom with the Zoning Board of Appeals. In addressing the merits of any variance application, the Zoning Board of Appeals shall consider the benefit to the 'applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the community by such grant, in further consideration of(l) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties. will be created by the granting of the variance; 1'2) whether the benefit sought by the applicant canbe achieved by some method, feasible for the applicant to pursue, other than a variance; (3) whether the requested variance is substantiali (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the variance. §72-12. Penalties for Offenses. Any violation of this Article shall be grounds for the revocation of an existing farm stand permit. Furthermore, any violator of this Article shall,, upon conviction, be guilty of a violation punishable by a fine not exceeding $1,000 or imprisonment not to exceed 15 days, or both. Each day on which such violation shall occur shall constitute a separate, additional offense as permitted by law. For a second and subsequent conviction within 18 months thereafter, such person shall be.guilty of a violation punishable by a fine not exceeding $5,000 or imprisonment not to exceed 15 days, or both. Generated September 12, 2008 Page 65 Southold Town Board - ~ECEIVED Board typing of September 9, 2008 BOARD OF APPEALS II. SEVERABILITY If any clause, sentence, paragraph, section, or part of this Local Law shall be adjudged by any court of competent jurisdiction to be invalid, the judgment shall not affect the validity of this law as a whole or any part thereof other than the part so decided to be unconstitUtional or invalid. IlL APPLICABILITY AND EFFECTIVE DATE This Local Law shall take effect immediately upon filing with the Secretary of State as provided by law. Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED [4 TO O] MOVER: Louisa P. Evans, Justice SECONDER: William Ruland, Councilman AYES: William Ruland, Vincent Orlando, Louisa P. Evans, Scott Russell ABSTAIN: Albert Krupski Jr., Thomas H. Wickham Generated September 12, 2008 Page 66 NYSDOT TRANSPORTATION MAINTENANCE RESIDENCY 03 1900 COUNTY ROAD 58 RIVERHEAD, NY 11901 te1(631 )727-1731 fax(631)727-6645 RECE~VEI~ 8OARD OF APPEAL~i MEMORANDUM DEPARTMENT OF TRANSPORTATION TO: FROM: DATE: Lou Edson - Santa's Christmas Tree Farm 30105 Main Road Cutchogue, NY 11935 Kevin E. Matthaei - NYSDOT Permit Engineer Your September 4th~etter regarding curb cut at NYSDOT ROW September 11, 2009 Dear Mr. Edson, This letter is in response to your September 4th 2009 letter to me regarding the road opening in front of your business at 30105 main Road in Cutchogue. The Town of Southold has asked you, as a matter of desired protocol, to involve the State in any proceedings/actions within the State ROW. Upon field review of your property and apparent usage, it has been determined that you will not need to take any action at your current curb cut within the State ROW. The State recently had a roadway construction contract through that area that replaced your old apron with a new apron made to current NYSDOT specifications. Thank you for your patience with this matter. If there are any further questions regarding this matter, please feel free to call me at (631) 727-1731. Sin~, Kevin E. Matthaei Permit Engineer Eastern Suffolk Residency 03 Suffolk East 1900 Rte. 58, Rlverhesd, NY 11901 516 727-1731 FAX 516 727-6645 TOWN of SOUTHOLD OFFICI: OF BI.)ILDIN~ INSPF:CI'OR Town Hall Sou~hotd, New York 11971 .......... Fee for Fee for Sign Q Fbod Development Pmt. r"i Check Fee for Certificate Building Permit 1~ c~ Occupancy Building Dep~mem RECE~'VEO ELIZABETH A. NEVILLE, RMC, CMC 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 November 20, 2009 Zoning Appeal No. 6353 Transmitted herewith is Zoning Appeals No. 6353 of Lewis Edson- the Application to the Southold Town Zoning Board of Appeals. Also enclosed is the Applicant's Project Description, Questionnaire, Short Environmental Assessment Form, Transactional Disclosure Form, Agricultural Data Statement, Letter Stating Reason for Appeal from Lewis L. Edson, Copy of Application for Building Department Dated Aug 28, 2009, Notice of Disapproval from Building Department Dated September 21,2009, Copy of Property Record Card, Copy of Tax Map of Property, Letter Explaining Intent of Project from Lewis L. Edson, Copy of Adopted Resolution 2008-877, Ariel Photo of Property, Copy of Survey, Ariel Photo of Property Showing Site Plan, Letter from NYSDOT in Regards to Curb Cut Dated September 11, 2009, Copy of Receipt from Building Inspector Dated September 29, 2009, Floor Plans of Building Dated November 12, 2009 Prepared by Pcconic Surveyors, Copy of Survey of Property Showing Site Plan Dated November 18, 2009 Prepared by Peconic Surveyors, Town of Southold P.O Box 1179 Southold, NY 11971 Date: 11/19/09 * * * RECEIPT * * * Receipt~: 61656 Transaction(s): 1 1 Application Fees Reference Subtotal 4929 $400.00 Check#: 4929 Total Paid: $400.00 Name: Clerk ID: Santa's, Christmas Tree Farm P O Box 939 Cutchogue, NY 11935 CAROLH Internal ID: 4929 Office Location: Town Annex/First Floor, Capital One Bank 54375 Main Road (at Youngs Avenue) Southold, NY 11971 Mailing Address: 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 LEGAL NOTICE SOUTHOLD TOWN ZONING BOARD OF APPEALS THURSDAY, MARCH 25, 2010 PUBLIC HEARING NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and Town Code Chapter 280 (Zoning), 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 25~ 2010: 11:30 A.M. LEWIS EDSON#6353. Request for variance from Chapter 72, Art. l, Section 72-4, based on an application for building permit to operate a farm stand in an existing building, and the Building Inspector's September 21, 2009 Notice of Disapproval stating the proposed use does not meet the definition of a farm stand, at 30105 Route 25, Cutchogue, NY. CTM#: 102-2-16. 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 priorto the day of the hearing. If you have questions, please do not hesitate to contact our office at (631) 765-1809, or by emaih Vicki.Toth~.Town.Southold.n¥.us. Dated: February 22, 2010 ZONING BOARD OF APPEALS LESLIE KANES WEISMAN, CHAIRPERSON By Vicki Toth 54375 Main Road (Office Location) 53095 Main Road (Mailing/USPS) P.O. Box 1179 Southold, NY 11971.0959 #9674 eoA~ ot~ ~l'f'~s STATE OF NEW YORK) ) SS: COUNTY OF SUFFOLK) Karen Kine of Mattituck, in said county, being duly sworn, says that she is Principal Clerk of THE SUFFOLK TIMES, a weekly newspaper, published at Mattituck, in the Town of Southold, County of Suffolk and State of New York, and that the Notice of which the annexed is a printed copy, has been reguMriy published in said Newspaper once each week for ~ week(s), successively, commencing on the 11th dayof March, 2Q10. ~_///~ ~ Principal Clerk Sworn to before me this NOTICE OF HEARING The following application will be heard by the Southold Town Board of Appeals at Town Hall, 53095 Main Road, Southold: NAME EDSON, Lewis #6353 MAP # 102-2-16 VARIANCE Non-Permitted Use REQUEST Farm Stand DATE: THURS,March 25, 2010 11:30 AM 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 APPEALS 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: hltp://southtown.northfork.net February 2<~ 2010 Re: Town Code Chapter 55 - Public Notices for Thursday, March 25, 2010 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 4th: 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 all 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 hearing, providin.q the returned letter to us as soon as possible; AND not later than March 5th: Please either mail or deliver to our office your Affidavit of Mailin.q (form enclosed) with parcel numbers, names and addresses noted, and furnish to our office with the green/white receipts postmarked by the Post Office. When the green signature cards are returned to you later by the Post Office, please mail or deliver them to us before the scheduled hearing. If any envelope is returned "undeliverable", please advise this office as soon as possible. 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 17st: 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 or mail your Affidavit of Postinfl for receipt by our office before March 23, 2010. If you are not able to meet the deadlines stated in this letter, please contact us promptly. Thank you for your cooperation, (PLEASE DISPLAY YOUR HOUSE NUMBER ALWAYS). Very truly yours, Zoning Appeals Board and Staff Encls. ZONING BOARD OF APPEALS TOWN OF SOUTHOLD: NEW YORK In the Matter of the Application of (Name of Applicants) CTM Parcel # 1000- ....... x AFFIDAVIT OF MAILINGS COUNTY OF SUFFOLK) STATE OF NEW YORK) , New York, being duly sworn, depose and say that: ' ' ./ On theft_day of /~'-~...(.///q?~//fl, I personally mailed at the United S~es Post Office in~ ~ ~ . N~w'~r~ by CERT~D ~L, ~ ~CE~T ~Q~S~D, a ~e copy of the a~ched Legal Notice in prepaid envelops address~ to c~ent o~ers shosm~ on the cugent ~sessment roll verified from the official r~r& on file ~m me ~Assessors, or ( ) Co~ Real Prope~y Office~. ?~.~/~ for eve~ prope~ which abuts and is across a public or pdv~r,e s~eet, or vehicular right-of-way of recor& s~om~ng the applicant's pro~y. ' Sworn to before me this ~-)¢",'-4ay of~C-~/p~t-c~, 20~0 k7 - (~igna~re) Notaq PulPit, Sta~of I~k~w York PLcE0~~2 ~ti~ ~back of tbs ~vit or on a sheet of pa~r the lot numbers ne~ to the o~e~i~ ~sses for which notices were mail~ %a~ you, USE rtl $2.80 1 {5.71 )2/2//20i0 {or POBOxNo.'~e~r'"'P't:'~I~? ........................................................ ~ ~ ~ ~ r!.J Ce~fied Fee E:~ (Endorsement Required) ~ (Endomement Required) ~ Total postage & Fees Certified Fee Retum Receipt Fee (Endorsement Required) 4--3 Street, A~t. No.; ..................................... ......................... Z..__.~<'....Z..~.__.~..~Z_... .../~_. ...................... Total Postage & Fee O' ~Z7/201 ~--': ........ ~ ...................................... ~-.4 //¥J.5----' ,-, Pom~ $ ~0.61 $1,I0 (End~aenwa ~quir~) ..-r Total postage & Fees $5.7! 02/'ZT/2QlO o ~ ~_.~-~----~-~-~--~ ........... ~- . ._F~.. -~ ........ -~ .... }ar~;~"F' -"3 ....... ~/~ ru -=3' Total postage & Fees $5 · ~. ~/2010 ~I ~j ~..,.... - ............. Postage Total Pos~ge & Fees ~.51 ~/~10 Postage Certified Fee rU [~ Return Receipt Fee ~3 {EndorSement Required) 1::3 Restricted Delivery Fee D (Endorsement Required} _-r Total Postage & Fees "- .xz..~..~.....~... -/..e.. ~ Return ReCeipt Fee r'-i (Endomement Required) i--1 USE 13.J Certified Fee Return Receipt Fee r"l (Endorsement Required) Restricted Delivery Fee O (Endorsement Required) I $2.30 ~ ~ Total Postage & Fees ~ $5.71 .......... 1 ~,~,~._~.,__,..~__.~_~..__:~.~' =:':~ ....... ~ ......... ~--~ Po~tage ~.61 Ce~tified Fee ~ .~ Return Receipt Fe~ (Endorsement Required) ~2m~ Restricted Delivery Foe (Endorsement Required) ~0.00 Total POstage & Fees $ $5.71 D. is daiivery address different from item 1' If YES. enter daiivery address below: ~ No ~~he beok of the mailpleca, Number 3. Set,ce Type ~ ~ Mall [] Express Mall [] Registered [] Return Receipt for Merchandise [] insured Mail [] C.O.D. 4. Restricted Delivery? ~ Fee) [] Yes 7009 1410 0002 1062 0463 · O~mpa Item~ 1, 2, and 3. Alan complete ~ 4 If Restricted Delivery Is desired. · I~nt your name and sddress on the reverse e• lflat we can return the card to you. · Attach this card to the back of the mailpiece, ~ on the front if space permits. 1. A~tlcle Addressed to: 2. Article Number (Tren~fsr from se~ic 7009 PS Folm 381 1, February 2004 •Agem [] Addressee address dlffef~lt rom Item 1 ? If YES, enter delivery address below: [] No ,~ Certified Mail [] Express Mall Registered [] Return Receipt for Merchandise [] Insured Mail [] C.O.D. 4. Reetdcted Delivery? ~ Fee) O Yes 1410 0002 1062 0500 · Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. · Print your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the mailpieca, or on the front if space permits. 1. Article Addressed to: 2. A~tlcle Number Domestic Return Receipt 102595-02-M-1540 ;mm D. Ii;yEdaiis: ee~nt:rgelivmSSe~y addiffer~ Ls~oe~:l? [] NUY~s ~r ~ i ~'~rfmm$ 7009 1410 0002 1062 0555 PS Form 3811, February 2004 Domestic Retum Receipt · Complete items 1, 2, and 3. Aian complete item 4 if Restricted Delivery is desired. · Print your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the mailpiece, or on the front If space permits. 1. Article Addre-~,ed to; B. Received by ~ D. Is daiive~/address different from item 1 ? If YES, enter delivery address below: [] Agent [] Addressee •No a. Sew~e l~pe []~M~I r'l Ex~ Mall OR~ 0 R~um R~lpt foHv~r~ [] lr~amed Meil [] C.O.D. d 2 Arflc~le NumI~' .... 700fl 1410 0002 1062 0616 PS Form ~11, ........ ,=,~u,u~u~ J~liv~ s d~lred · Print your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the mailplece, _ or on the front if space permits. 8. Received by (Printed Name) ~cic wA.M 7009 1410 0002 1062 0456 , ~004 I~ Retum Renslpt ~ 1, 2, end 3. AJao complete I~m4JI ~ Delivery is desired. · Pfllll Your name and addmes on the reverse Jo ~Jt we can tatum the card to you. · Altanh this card to the back of the mailplece, 0 Z I'1 Return Receipt for Merchandise [] Insured Mall [] C.O.D. 4. Rnsl~cted Dallvm'y? (Ex~a F~e) OYes -. Ntlcle Number ~t~ns~ ~, ~ 7009 1410 3. Service Type lL'l Cmtmed Mall r~ Registered r'l Insured Mall 4. Restricted Delivery? (Extra F~e) Form 3811, February 2004 =~i? [] Agent B. Received by ( ate of E ¥ [ . '~- · If YES, enter delivery eddres~l below: I~NO !~ io~ ~.,~ J .~0=~ ~-/ r-lReturnRecelptf°rMerchandlse '= ~':~:'''~'~>"~' '~e ~ t~ ~ 0002 1062 0562 Domestic Retum Receipt ~hecardtoy~.- ..... Jr__ 7 7009 1410 0002 1062 0609 Complete items 1, 2, and 3. Also complete item 4 If Restricted Deliver/Is desired. ' Print:your name and address en the mveme so that we can return the card to you. Attach this card to the back of the mallplsoe, or on the front if space permits. Article Addressed to: [] Insured Mall [] C.O.D. 4. Re~Hc~ed D~y? ~a Fee) [] Yes -,,~-,~1~ 7009 1410 0002 1062 0432 1, Februsry 2004 Dome~tm¢ Return Recalp! 102595-0244-1540 ............ ~ ..... Pa~e 1 of 1 · Complete itema 1, 2, and; ~omplete item 4 If Reet~tcted Delivery Is desired. · Print your name arid address on the mveree · Attach thlm card to the bank of the mallplece, or on the fTont ff apace permit~, 1. Article Addressed to: 2. Article Number (Transfer from servl( Is d~llve~ addmea different from Item 1 ? If YES, enter delivery addres~ beE)w: [] No 3. Se~lce Type J~ Cefitfled Mall n F. xptese Mall [] Registered r-I Return Receipt for Merchandise r-I Insured Mall [] C.O.D. 4. Restricted Detlve~? (Extra Fee) [] Yes 7009 1410 0002 1062 0470 PS Form 381 1, February 2004 Dom6etic Retum Receipt · Complete Items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. · Print your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: [] Agent [] Addressee Delivery D. Is deliv~y address different from Item 1 ? [] Yes If YES, enter delivery address below: [] No 2, A~tE)le Numbe (T~.s~?~om 7009 1410 0002 1062 0487 PS Form 3811, February 2004 Domestic Retum Receipt · Complete Items 1, 2, and 3. Also complete Item 4 if Restricted Delivery is desired. · Print your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the mailpiece, or on the fl'ont if space permits. 1. Article Addressed to: 2. Article Number 7009 1410 [] Agent ~ Addressee B. Received by ( Printed Name) C. Date of Delivery D. Isdeliveryaddm~sdW~mntffomlteml? DYes If YES, enter delivery addtesa beE)w: [] No /~'~ Cellfl'~ld Mall [] Express Mall [] Regletered [] Retum Re(~lpt for Merchandise [] Insured Mall [] C.O.D. 4. Reetricted Detiv~ (Extra Fee) [] Yes 0002 1062 0494 PS Form 3811, February 2004 Domestic Return Receipt 10259S-02-M-1540 · C4)mplete Items 1, 2, and 3. Also complete Item 4 If Restricted Delivery is desired. J~ Pantyour name and address on the reverse so that we can return the card to you. · Attach this card to the back of the mailpieca, or on the front if space permits, 1. Article Addressed to: Addressee i B, Received, Date of Dailvery D. lo deliveq Htem 17 .[;]Yes If YES, enter delivery [] NO 2. Nticie Number ~,. 7009 1410 0002 1062 0517 I=S ~m 3811, February 2004 Domestic Return Receipt ~Ce~fled Mail 1'3 Express Mall Registered [] Return Receipt for Merchandise [] Insured Mell [] C.O,D. 4. Restricted Delivery? (Extra Fee) [] Ye~ · Complete Items 1, 2, and 3. Also complete item 4 If Resb'lcted Deliver/is desired. · Print your name and address on the mverso so that we can return the card to you. · Attach this card to the back of the mailpiece, or on the front if space permits. 1, Alticle Addressed to: ,e...w ?. O 2. Article Number (Transfer fr~m se~.e ~ 7009 1410 PS Form 3811, February 2004 D. Is dellve~ eddrese different from Item 1~ If YES, enter delivery eddms~ below: [] No ~'CerUfled Mall [] Express Mall r'l Reg~temd [] Retum Receipt for Merchandise [] Insured Mall [] C.O.D. 4. Reetrfcted Delivery? (Extra Fee) [] Yes 0002 1062 0449 Domestic Return Receipt USPS - Track & Confu'm Page 1 of 1 ~ UNITED STATES POSTAL SERVICE~ Home I Help I Sign In Track & Confirm Track & Confirm FAQs Search Results Label/Receipt Number: 7009 1410 0002 1062 0524 Class: First-Class Mail® Service(s): Certified Mail'" Return Receipt Status: Notice Left We attempted to deliver your item at 1:55 PM on March 1,2010 in CUTCHOGUE, NY 11935 and a notice was left. You may pick up the item at the Post Office indicated on the notice, go to www.usps,com/redelivery, or call 800-ASK-USPS to arrange for redelivery. If this item is unclaimed after 15 days then it will be returned to the sender. Information, if available, is updated periodically throughout the day. Please check again later. Detailed Results: · Notice Left, March 01, 2010, 1:55 pm, CUTCHOGUE, NY 11935 · Arrival at Unit, March 01, 2010, 8:24 am, CUTCHOGUE, NY 11935 · Acceptance, February 27, 20t0, 9:30 am, CUTCHOGUE, NY 11935 Notificatian Options Track & Confirm by email Get current event information or updates for your item sent to you or others by email. Track & Confirm Enter Label/Receipt Number. RECEI1/ED BOARD OF ApPEALS Copyright© 2010 USPS. Air Rights Reserved. Oovt Services Careers Privacy Policy Terms of Use NO FEAR Act EEO Data FOIA O Business Customer Gateway http://trkcnfrm 1 .smi.usps.com/PTSInternetWeb/InterLabellnquiry.do 3/15/2010 USPS - Track & Confn-m Page 1 of 1 UNITED ST,/STES POST~L SER1/~E~ Home I Hel~ I Sign In Track & Confirm FACts Track & Confirm Search Results Label/Receipt Number: 7009 t410 0002 1062 0531 Class: First-Claes Mail® Service(s): Certified Mail"' Return Receipt Status: Notice Left We attempted to deliver your item at 1:54 PM on March 1, 2010 in CUTCHOGUE, NY 11035 and a notice was left. You may pick up the item at the Post Office indicated on the notice, go to www,usps.com/redelivery, or cell 800-ASK-USPS to arrange for redelivery. If this item is unclaimed after 15 days then it will be returned to the sender. Information, if available, is updated periodically throughout the day. Please check again later. Deteiled Results: · Notice Left, March 01, 2010, t:54 pm, CUTCHOGUE, NY 11935 · Arrival at Unit, March 01, 20t0, 8:24 am, CUTCHOGUE, NY 11935 · Acceptance, February 27, 2010, 9:31 am, CUTCHOGUE, NY 11935 Notification Options Track & Confirm by email Get current event information or updates for your item sent to you or others by email. Track & ConfirTM Enter Label/Receipt Number. RECEIVED ~OARD OF AppeALS Site Map Customer Service Forms Copyright© 2010 USPS, All Rights Reserved. Gov't Se¢vlces Careers Privacy Policy No FEAR Act EEO Data FOIA O Terms of Use Business Customer Gateway http://trkcnfrm 1 .smi.usps.conffPTSlntemetWeb/InterLabellnquiry.do 3/15/2010 USPS - Track & Confirm Page 1 of 1 ~ UNITED POSTAL Home I Help I Sign In Track & Confirm Track & Confirm FAOs Search Results Label/Receipt Number: 7009 f4f0 0002 t 062 0449 Class: First-Class Mail® Service(s): Certified MailTM Return Receipt Status: Notice Left We attempted to deliver your item at 1:05 PM on March 1, 2010 in CUTCHOGUE, NY 11935 and a notice was left. You may pick up the item at the Post Office indicated on the notice, go to www.usps.com/redelivery, or call 800-ASK-USPS to arrange for redetivery. If this item is unclaimed after 15 days then it will be returned to the sender. Information, if available, is updated periodically throughout the day. Please check again later. Detailed Results: · Notice Left, March 0'1, 2010, '1:05 pm, CUTCHOGUE, NY f'1935 · Arrival at Unit, March 01, 2010, 8:24 am, CUTCHOGUE, NY 11935 · Acceptance, February 27, 20'10, 9:24 am, CUTCHOGUE, NY '11935 Notification Options Track & Confirm by email Get current event information or updates for your item sent to you or others by emaJl. Track & Confirm Enter Label/Receipt Number. BOARD OF APPEALS Site Map Customer Service Forms Gov't Services Careers Privacy Policy Terms of Use Busifless Customer Gateway Copyright© 2010 USPS. All Rights Reserved. No FEAR Act EEO Data FOIA I~ ~i~ http://trkcnfrml .smi.usps.comYPTSInternetWeb/InterLabellnquiry.do 3/15/2010 ZONING BOARD OF APPEALS TOWN OF SOUTHOLD: NEW YORK In the Matter of the Application of (Name of Applicants) Regarding Posting of Sign upon Applicant's Land MenU/fled as ~000-/. . _?:___.____./__:. ......... .......... ~-------:-- '~' x COUNTY OF SUFFOLK) STATE OF NEW YORK) n£c£nt£O BOARD OF APPEALs AFFIDAVIT OF SION POSTING ---- , l'~e~ York, betng duly. swo~;l~.depos~e/an/.cl say that: Po' u.n..th.5~ ~d,ay o.f. :~~,, I personally placed the Town's official srer, mtn me cate oi neanng aha nature of nvfapplication noted thereon, securely unon m,, propen'y, located ten (10) feet or closer from the street or .4..h,_e ........ ~. ~- . J . . . ~,r~['~,,-way tonvewa entrance _ facing the street or facing each street or right-of~way entrance;* and that Y ) I hereby confirm that the Poster has remained in place for seven days prior to tl.m/t date of the subject hearing date, which hearing date was sho~~~,~~~.~__~ (Signature) Sworn to before me th/s /D~y of PTc~ 6~__, 20,0 Nota~ P~blic, Slaie o~ New York No. OIVA6]86Z77 near t~y entrance of my properly, as the area most visible to passersby. ~ ~.~' ~r~ 9814 ,%/~,~%-C¢STATE OF NEW YORK) ) SS: COUNTY OF SUFFOLK) Karen Kine of Mattituck, in said county, being duly sworn, says that she is Principal Clerk of THE SUFFOLK TIMES, a weekly newspaper, published at Mattituck, in the Town of Southold, County of Suffolk and State of New York, and that the Notice of which the annexed is a printed copy, has been regularly published in said Newspaper once each week for 1__ week(s), successively, commencing on the 17th dayof June, 2010. Sworn to before me this Principal Clerk day / 2010. LEGAL NOT/CE SOUTHOLD TOWN ZONING BOARD OF APPEALS WEDNESDAY JUNE 30,2010 PUBLIC HEARINGS NOTICE IS HEREBY GIVEN, pur- suant to Section 267 of the Town Law and Town Code Chapter 280 (Zoning),Town of Southold, the following publ/c hea~- ing$ will be held by the SOUTHOLD TOWN ZONING BOARD OF AP- , PEALS at the Town Hall, 53095 Main Road, 1~O. Box 1179; Southold, New I York 11971-0959, on ~ Schedule and Parking Schedule propos- Zoa*: R-80. (The Zoaia8 Board of Ap- 2, 2004, ~reated the app~ rel~f ~ condition.) 35 feet, (2) less than the code requised setback from a bulkhead of 75 feet at; 750 West Lake Dr., Southold, NY. . SC~M#1000-90-2-1. (adj. to Litfle Pc- conic Bay and dug Inlet) 10'.30 A.IVL ANDREW GREENE g6387. Request for Variances from Code Section 280-116(A) based on an applica- tion for building permit and the Build- ing Inspector's March 24, 2010, Notice of Disapproval concerning construction of an accessory in-grotmd swimming pool at less than the code required setback from a bluff of 100 fe~t at; 30653 Route 48. Peconic, NY. SCTM#1000-73-4-5. (adj. to Loft# Island Sound) 10:50 A.M. THOMAS and NANCy l~ Request for Vati- ance from Code Secfion 280-124, based on an appl/cafion for building permit and the Building Inspector's November 20, 2009, Updated February 18, 2010, Notice of Disapproval concerning "as built" deck addition at less than the code required front yard setback of 35 feet aC: 273 Manhasset Rd., Greenport, NY. I]:00A.M. CHARLES MAIIINA fBELLMATF PROPERTIES. LLCI #6381. Request for Variance from Code Section 280-124, based on an applica- tion for building permit and the Build- ing Inspector's March 1. 2010. Notice ol Disapproval concermng deck additions at less than the code requfred front yard setback of 35 feet at. 545 Koke Dr.. Southold. NY. SCTM#1000-87-5-14. 11:15 A.M. FRANK and DONNA SCAROLA and DONNA PERRIN #6382. Applicants request a Special Ex- ception under Section 280-13B(141.. The Applicants are the owners requesung this single family dwelling, from three (3) bedrooms to five (5) bedroorrm for lodging and serving of breakfast to the of Property: 4850 Sound Ave.. Mattituck: CTM 121-3-6. g6384. Request for Variances from Code Section 280-116 oases on an application for building permit and the Bui!diag In- spealor's .t~mended December 10. 2009. Updated March 9. 2010. Notice of Dis- approval concerning "as built" rear deck aud existing sheds, at less than the code required setback from a bulkhead of 75 feet at: 2700 Ole Jule Lane Mattituek. NY. SCTM#1000-122-4-14. (adj. to Jan~es Creek) 1 '1:45 A.M. ALEXANDER ],, and TRACy M. SUTTON #6385, Reques[ for Variances from Code Section 280-18 based on an application for building per- 14,2009. Updated March 18.201£ Notice lot subdivision, with total lot area less than the code required 80,000 square feet for two lots at; 1160 North Bayview Rd., Southold, NY. SCTM#1009-78-9-54 & 7~. Zone: R40. CHRISTINA VOLINSKI NOTARY PUBLIC-STATE OF NEW YORK NO. 01-V06105050 Qualified in Suffolk County Carryover Hearing~ continued from ptior meetings and pending additional informafion: Adjourned from Public Hearing Adjourned from Public Hearing Feb- ruar~ 25. 2010: Adjourned from Fubfic Heating before the conclusion of each hearing. tale to contact our office at (631} 765- Dated: June 9, 2010 PERSON 54375 Main ROad (Office Location) 53095 Main Road (MailthgBJSl~'S) 1~O. Box 1179 Farm Stands Public H~ng July 1, 2008 In all cases, farm stands shall not exceed 4,000 square.feet in enclosed retail sales area, excluding storage areas, lemporarv display areas and areas inaccessible to the general public. §72-9. IReservedl §72-10. IReservedl §72-11. Variance Procedures. Any farm stand that is found not to meet the requirements of this Article may anveal such decision or seek a variance therefrom with the Zoning Board of Appeals. In addressing the merils of any variance application, the Zoning Board of Appeals shall consider the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the community by such grant, in further consideration of{l) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the variance; {2) whether the benefit sought by the applicant can be achieved by some method, feasible for the am~iicant to oursue, other than a variance; (3} whether the requested variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the variance. §72-12. Penalties for Offenses. Any violation of this Article shall be grounds for the revocation of an existing farm stand permit. Furthermore, any violator of this Article shall, upon conviction, be guilty ora violation punishable by a fine not exceeding $500 or imprisonment not to exceed 15 days, or both. Each c.~ay on xx. hich such violation shall occur shall constitute a set~arate. additional offense as permitted bt' law. For a second and subsequent conviction within 18 months thereafter, such person shall be guilty ora violation punishable by a fine not exceeding $1,500 or imprisonment not to exceed 15 days, or both. IlL SEVERABILITY If any clause, senteuce, paragraph, section, or part of this Local Law shall be adjudged by any court of competent jurisdiction to be invalid, the judgment shall not affect the validity of this law as a whole or any part thereof other than the part so decided to be unconstitutional or invalid. IV. APPLICABILITY AND EFFECI'iVE DATE This Local Law shall take effcct immediately upon filing with the Secretary of State as provided by law. That summarizes brietly the proposed law that is out for public heating this atlemoon. SUPERVISOR RUSSELL: [ just want lo clarify something that might have been presented. An operating, existing farm stand is not required to come and get a permit to run a farm stand. Those are existing farm stands. This speaks Io the new farm stands as 5 sta. ds Pub,lc 6., July 1,2008 they come in. Doug, people like you that have been out in this business for a long time, you don't have to run and get a thrm stand permit. This is for construction of new structures. It is a change in market out here, it is a change in dynamic, we wanted to have a law that is a little bit broader and a little bit more confusing than the law I was always hoping for but this is a work product of a lot of different people, with a lot of different input. Now, would anybody like to come up and address the Town Board? COUNCILMAN WICKHAM: There is quite a bit more here. SUPERVISOR RUSSELL: I am sorry. COUNCILMAN WICKHAM: That is the law that was summarized. There are a few more items in the file that need to be read into the record. One of them is that the Suffolk County Planning Commission also has tbund this one to be considered a matter for local determination and no input l¥om them. I have a two page memo from the Chair of the Planning Board which I think I should read more or less in its entirety. This is the recommendations from them regarding this proposed resolution. "The Planning Board has reviewed the proposed local law regarding new Town code tbr farm stands. We support updating the farm stand code, however, we have some comments regarding the proposed legislation as follows: I. Statement of purpose: consider adding more language about supporting local agriculture to this section of the law. 2. Maximum size: consider capping the maximum size at 3,000 square feet of enclosed retail area instead of the proposed 4,000 square feet. 3. Parking requirements: consider simplil~'ing the parking requirements to read as follows or something similarly simple: the farm stand parcel provides at least four off-street parking spaces and also provides adequate space that may be used to accommodate seasonal fluctuations in parking needs so that safe conditions for the public are maintained at and around the farm stand at all times. 4. A concern was raised aN>ut existing lhrm stands and what their status would be' after the new code is enacted-how many farm stands would become non-conforming? 5. Processed agricultural products are defined, however, are not treated any differently than other retail products. Consider providing aa incentive tbr farm stands to carry products made from locally grown produce by pt'oviding an incentive to do so. For example, you might consider a more stringent limit than 40% on non-local processed foods, souvenirs, clothing and other retail items but give an incentive for selling products made with locally grown produce by allowing a higher perc.entage of the gross sales to be processed, if the processed items are from locally grown produce. 6. Develop criteria and a mechanism ;'or evaluating the percentage of local produce versus other retail and involve the Agricultural Advisory Committee in this process. 7. Definitions and consistency: there a number of definitions throughout the code in other chapters that are not consistent with the definitions in this new chapter. The Planning Department has a comprehensive list of those definitions to be provided to the Town Attorney's office." In addition, we have a short environmental assessment l;~rm for a list of actions completed for this proposed law. I have a memo t?om the LWRP coordinator, who has reported as of June 30t~, 'It is my recommendation that the proposed action is consistent with the policy standard and therefore is consistent with the LWRP.' And that, and finally I have the legal that appeared in the Sullblk limes newspaper back in June 12 and affn'mation that Farm Stands Public }t~g 7 July 1, 2008 it showed up on the Town Clerk's bulletin board outside. What have I got here? This morning we had Mr. Huntington who is a long time member of the Land Preservation Committee, who lett off some comments that should be added to the file. This has to do with definitions. "The proposed code defines a farm stand as it is written here in the text. Does this mean that the retail sales of crops from equipment or facilities that are less than 80 square tket in area or from wagons totaling less than 80 square feet or from a sellers parcel that is less than seven acres or t¥om a sellers parcel that produced less than $50,000 in sales in the last two years are not sold from farm stands? (That is his question) If so, then what are such small, what do we call such small stands selling crops? There are hundreds around toxin. Will the existing code address them as retail business activities? Is it proposed that the revised code will ignore them? Are they unregulated? What about thc definitions and requirements in Chapter 280? (Which is on the other side.) It is agreed that we need to facilitate farmers access to local and tourist retail markets, but small stands are also an important characteristic of our town. Should we not recognize them in this legislation? Can we not call them 'yard stands' and define them as such? If this appears to be too knotty an issue, as a special case of retail sales, could we not create a limited class by requiring 100% on parcel or 100 % within township crop cultivation?" This is Ray Huntington of Cutchogue. And those are the comments that are in the file. COUNCILMAN KRUPSKI: Before we start the hearing, I just want to make it clear. As the Town Board took this up wid~ the Code Committee quite a long time ago and at that Code Committee, I remember Councilman Wickham and I getting up and walking out at that point. I just want to make it clear, because this affects me directly, I have had no discussion with any, you know, Town Board members, with the Ag Advisory Committee on this and no part in shaping this legislation. I will however, during the heating, I do have comments on this because it does affect me directly and affects my family directly and our business and because of that, I will reserve my comments until the end. SUPERVISOR RUSSELL: Would anybody like to come up and address the Town Board on this issue? Mr. 13aiz'? CHRIS BAIZ: Good afternoon, Supervisor Russell and members of the Board. My name is Chris Baiz, I live here in Soulimld. For the last ibur months I have been acting chair of the Ag Advisory Committee, while the current chairman Bob VanBourgondien has been otherwise disposed and not able to meet our, with our meetings on Wednesday nights, the mird Wednesday of each month. The process for this farm stand legislation goes back to the direction and guidance of Supervisor Russell to January of 2006. We are now July 2008, so we are a good 2 F~ years down the road on this. The key things were to make farm stand code simple, ~nderstandable, to allow an economic agricultural operation to enter the Tovm, if it isn't already here. Of those who are already here but don't have farm stands to be abie to establish a farm stand that is an economically viable entity. On. what I like to call a windshield cruise, I have driven around town, I have counted a total of 32 thrm stands. Some of them I have digitally photographed. I should have brought my laptop computer in and we could have had a flashing display of all the farm stands here in town. Them are fm,'rn stands from card table to, pardon me, Harbes Farm Stands Public Hc~g 8 July 1, 2008 table size farm stands. Even the largest, at this stage of the game, fits within the guidelines of this law. We are simply trying to make something as the Agricultural Advisory Committee's recommendations, something that is viable year round, for a farm family to operate a business. The size demarcations are in, shall we say, sent with agricultural and markets law of the State of New York which I think greatly benefits the opportunity for us and the big thing is that we want for the future to create the opportunity for a farm family to have an economically viable entity in order to support their farming operations and to support keeping that land open and active and working as a th'ming operation in the Town of Southold. To that end, the members and the chairman of the Ag Advisory Committee have asked me to convey to you all that we are very much in favor of this moving forward. Obviously from some of the material that has been presented to date, there is a lot of eftbrt to micro manage a little comer here and a little comer there. I think more importantly, let's get this on the books. We don't expect a stampede, we don't expect 30 new 3,000 square foot farm stands. Remember a fully enclosed farm stand at a modest $150 square foot at the 2,000 square foot level is a $300,000 proposition and for anybody who is a farmer in this room I don't think anybody is about ready to spend $300,000 just to put up a building that he hopes that he can sell his produce and product in. So with that, we hope you will support this. We think it is a move in the right direction ibr our high cost of land and obviously what has happened this year with the astronomical increases in energy related materials such that farmers are having to cut back to half of their acreage planted this year because of diesel prices and fertilizer prices. We do need to find a retail economically viable outlet for our farmlands to remain active and viable for the to'~. Tl~ank you. SUPERVISOR RUSSELL: Thank you. Who else would like to get up and address the Town Board? Mrs. Egan? JOAN EGAN: Joan Egan, East Marion. I did not have the opportunity to go over all of this. I had the printout from a week or two ago. I think as said here and I hope that a lot of the farm people were notifie6 about what was happening here and I think we have to take (inaudible) are wineries considered thrm stands? SUPERVISOR RUSSELL: Not as a result of this legislation, no. MS. EGAN: No. They are nm included in this. As I get most of the feedback for myself and speaking with others, in other words, you want them to just have produce from either their farm or neighboring farms. Then you don't want them to sell mugs and funny things that are unrelated? SUPERVISOR RUSSELL: No. Actually there were so many different efforts here to try to accommodate the changing neeas of agriculture. Obviously the first thing we want to do is make sure it is a bona fide ag operation. This is a tbrm of retailing that should be a privilege to an ag operator, not anybody that wants to come in and start going into the business. So we defined agriculture based on state ags and market law. At the same time you need to recognize that it is not realistic to expect an agricultural operation to survive on just what it can produce on site anymore. They need to stay in business a little bit Farm Stands Public H~g 9 July 1, 2008 longer. The 40% rule was for non-agricultural or accessory items was meant to address that. Some issues were raised to me the other day which I will mention in a minute about how to try to address that more fairly because I had business owners who were concerned about that but the idea was to provide more extended opportunities tbr ag operations. MS. EGAN: Yeah, well that sounds good. Now the uh, you are going to make it as simple as possible .... SUPERVISOR RUSSELL: That was the goal but we missed that mark by a mile. MS. EGAN: I think it should be noted and well, it was addressed lightly you know, with the increase of oil prices and everything and you know the products that they use to make the land better and the soil better and all of that and with gas prices for us going to farm stands, you know' you are not going to Joe Blows for this and Tom this for that and Bill, you are going to go to one place that has the most because this stopping and going it is so hard on your car. Now I have heard and I think I read it somewhere and I think it is great and I hope it gets pushed around humongously, a lot of our restaurants buying exclusively their produce and their poultry and their fish, if you will, which are a fanning thing, from local people and I think that is fantastic. This helps all of us because we don't want to lose our farm stands. This is part of our culture out here, so 1 hope whatever you decide to do up there will be the best for farmers and for us. Thank you. SUPERVISOR RUSSELL: Thank you. Would anybody else like to come up and address the Tov~n Board on the issue ot'the ~'arm stand code? KEVIN SHANNON: Hi, l am Kevin Shannon and there are two issues I think that I find disturbing. One is the size of the overall retail space, the enclosed retail space. Four thousand square feet is a huge retail space. And that doesn't include any ancillary storage space. That is separate and that doesn't go into that calculation. So, that is one issue. The second issue is the amount of produce. I mean, it is like oh my god, this is almost a super store in terms ot' the, anti I don't know how you get around this exactly by identifying each product but ill went down the list of things, there were livestock items, you know, including cattle, sheep, hogs, poultry, nursery products, fish products and fish, vineyard products, alcoholic I~everages, clothing, souvenir items. I mean, it is a huge list of items and maybe that is why they need the 4,000 square feet but 1 think the Planning Department comment about scaling-that back somewhat is valid and maybe even further than 3,000 square leer but I thim~ if you can tighten up the definition, you know, in terms of products that they are going to sell, I don't know why the wine and alcoholic beverages are in there, are they. is that lbr catering purposes? SUPERVISOR RUSSELL: Let me just clarify, that is actually that is culled right from New York State Agriculture and Markets. MR. SHANNON: Okay,. SUPERVISOR RUSSELL: it is not our dctinition. The underlying or the underpinning to that is that you don't get to build this big structure and fill it with all these different Farm Stands Public He~g 1 0 July 1, 2008 items, 60 pement of what you am selling you have to grow right there on site. It is the 40 pement that you could have the t-shirts, the souvenirs etc. That, the idea was again to allow a tanner to do what a farmer does, which is to ~ow and sell their items. The broadness of that comes from ag and markets law. MR. SHANNON: Yeah. Okay. We all know the traditional fa~ stands... SUPERVISOR RUSSELL: Right. MR. SHANNON: Okay, and now. you know, and the t-shirts don't bother me, the souvenirs don't bother me but now you are adding fish products. Are they are farm stand or are they selling fish products? Are they competing with Southold sea food market? You know, with Brauns? What is the .... SUPERVISOR RUSSELL: I can appreciate that. MR. SHANNON: That is why I was troubled by the broadness of this. SUPERVISOR RUSSELL: I can appreciate that. I actually had a few business owners come to me the other night to talk about the issue oftbe 40 percent, the 60 percent should be easy for everyone. If you didn't grow it, you can't sell it. MR. SHANNON: Yes. SUPERVISOR RUSSELL: Thc 40 percent becomes problematic. I had some business owners raise some concerns about why should I have to compete against someone who enjoys the benefits of selling without the underlying issues of commercial taxes etc. They wanted to see a clearer definition of what that 40 percent would include. And again, they weren't bothered by t-shirts or this or that. They were bothered by what are they going to be selling that 1 am selling lhat my overhead is much higher than theirs? MR. SHANNON: Right. SUPERVISOR RUSSELL: I think that is a thir point but again, the broadness of that other wasn't to allow for that, it was to say, if you produce fees based on ag and markets laws, 60 percent of theirs can be sold on site and 40 percent is accessory items as you see fit. Fish products, all of that is actually part o!rag and markets law now. MR. SHANNNON: Okay. 'l'he other thing that [ would point out is, if you take, the way the definition is written I believe, is 60 percent of the gross dollar value, okay, so that means that 40 percent of that 60 percent of the gross dollar value, so that in and of itself is somewhat limiting in what they can sell in what they can sell in that 40 percent. SUPERVISOR RUSSELL: Yeah, it is the gross dollar value of the crops and then 40 percent of what your revenue can be supplemented... 1 1 Farm Stands Public H~g July 1,2008 MR. SHANNON: I don't know who comes in and enfomes that, you know, you have got that code guy .... SUPERVISOR RUSSELL: We have that, no matter what you do, the underlying issue is enforcement is going to be a problem but the assessors regularly were able to calculate income t¥om farms lbr exemption purposes. I don't, the idea isn't to say oh, this guy has 41 percent today, shut him down, the idea is to put in some general parameters so when that farm stand comes in that doesn't have anything planted but wants to be able to go into competition basically as a wholesaler and start selling against you know, competing against farmers, who have the burden of an operation, we can step in and say you don't comply with this. We need some standard in there and that is where that came from. COUNCILMAN KRUPSKI: When I speak, I have a suggestion about how to try to enfome that. MR. SHANNON: Okay. SUPERVISOR RUSSELL: Okay. Would anybody else like to address the Town Board on this issue? Mr. Wills? FRANK WILLS: Frank Wills, Mattituck. I would like to add and reinforce the previous gentlemen's comments about the maximum size of the building. If my math is correct and I believe it is, 4,000 square foot is 10 percent of the total of an acre. I don't know whether we want to fill up our farmland, which we so much admire, with buildings for 4,000 square feet. I think it is excessive. SUPERVISOR RUSSELL: Mr. Cooper? DOUG COOPER: Good afternoon, Board members. Doug Cooper, Mattituck. I helped work with the Ag Advisory Committee on this legislation, I strongly support it, it is not perfect, there are things I don't agree with but it is a good start and it can always be changed in the future. The concerns about the size of the facility, there will not be a whole lot of these large fam~ stands. Most farm stands are going to be on the small side, the very small side. It will be what we can sell and produce ourselves. I urge the Town Board to look at this and adopt it. Thank you. SUPERVISOR RUSSELL: lhank ~ou, Doug. Melanie? MELANIE NORDEN: Melanie Norden, Greenport. 1 would just like to say that I think our farm stands are really lovely out here and we have to do everything that we possible can to encourage the agricultural industo, which is one of the things that contributes to the beauty of the landscape and we have to encourage our farmers as much as we can to make a living. I mean, if in fact as Ivlr. Wills points out, we are taking up 1/10th of an acre and if there are only 32 farm stands, we are only talking about what? Max 32 acres or one portion of 32 acres. It is ridiculous to complain about that whereas in fact, they add so much beauty and continuity and loveliness to the landscape. I don't, business Farm Stands Public I-I~I 12 July I, 2008 owners, we are in a competitive society, if you have a great product somebody will buy it. So and I am sure the farmers have an overhead that far exceed somebody's rent in downtown Southold for a shop. I mean that is absurd. An absurd commem. So I think we should be much less concerned about the competition with small local businesses and much more concerned out here about maintaining the industry that adds so much breadth and beauty and scope and encourages tourism across the boards here. I mean, people don't come out to shop in downtown Southold in October to buy something in a hardware store. They come here to buy something at a farm stand. To buy pumpkins, to buy flowers, to buy whatever their family wants. So this is an industry that we need to preserve and protect in whatever way possible and I say, if they want 5,000 square feet; fine. I think it is a very moot point but i would really like to encourage the Board to do whatever it can do, not just in this legislation but in an ongoing basis to protect this industry, which is a delight and creates so much beauty for all of us. Thank you. SUPERVISOR RUSSELL: Thank you. COUNCILMAN KRUPSKI: Thank you. SUPERVISOR RBSSELL: Woald anybody else like to come up? Mr. Baiz? MR. BAIZ: Do I hear 10,000 square feet? Look, let's go right to the nutshell on this in terms of the sizes that are in here. The legal department of the division of agriculture and markets up in Albany has stated that enclosed retail sales areas of farm stands that are between 2,000 and 3,000 square feet, is not deemed unreasonably restrictive to an agricultural operation. So the ef[brt was okay, anything up to 2,000 square feet and there is only one l'hrm stand out here that 1 believe is larger than that, in the Town of Southold, we felt that that should simply have, be able to come in as of right to obtain a building permit. Farmers are very penurious people~ they like to hold onto their money, what little of it they have got and they are not going to run out and build a palace to sell a head of cauliflower. They are going to build something that is suitably sized. And within the value of giving them a refute on their revenue stream, we are t~ing to create an environmem where they are not just open from July I to maybe Thanksgiving and then shut down. We are trying to give thera an opportunity to be open March through December or something like that so that there is a little bit more of an economic viability in their livelihood. Working on the land that they don't have to, 1 have a farmer friend here, he is pretty much retired nov~ but in the winter time he would drive for UPS just to make ends meet and ne drove thc big Brown trucks. And I had another friend who drove tbr one of the oil delivery companies in the winter time. So there is that aspect. The 3,000 square feet or t¥om 2,000 ~o 3,0{~0 square feet, we have simply asked for modified agricultural site plan review. That is still being invented as we speak, so someone coming in for a 2,001 to 3,000 square lbot building doesn't have a process to go through yet. Four thousand square l~et, that was put in as an absolute legitimate cap for someone who wanted to come in and do that but if you read the legislation carefully, the only way a person can exceed 3,000 square feet let alone anything else, is he must go to the Planning Department and Planning Board for a full site plan review just as if he were any other business at that point in time. So, we are trying to balance agriculture and markets, Farm Stands Public 13 July 1, 2008 what is not unreasonably restrictive to what will work here within the graces of the Town of Southold and its citizenry. We want to keep the farmland viable, not for tomorrow but for the next 10, 20, 50 years and it will always be an ongoing program because we do live, if any of you know a more expensive place for agricultural land to survive, let me know. I know Napa Valley is perhaps a little bit more expensive but if we are going to keep agriculture alive here, we need 1o find ways to keep it economically viable for those who chose a life of what I like to call 29/8. Not 24/7 anymore. Farming is 29/8. Twenty nine hours a day, eight days a week. Thank you. SUPERVISOR RUSSEt, L: Just as a point of clarification, generally speaking an ag operation would need to be at least seven acres and produce an income of $10,000 or more. For those smaller lots, the concern, 1 know. and I had some concerns actually with the height actually, I had put a proposal together that stops at 2,000 and then put a scale in. The more land ~ou have, the larger the structure could be. That got put to the side because it complicated an already complicated law. But the idea was that with the smaller operations, they really would have to be a high income producer to even quality, for it, a (inaudible) thrm stand. And that might be a greenhouse. A greenhouse can easily take up 3,000 square feet yet it is hardly what you would call an oversize structure. It is where they are producing their product. Would anybody else like to come up and address the Town Board on this issue? DAWN THOMPSON: Dawn T~aompson. Does that have to be seven continuous acres? We have five and a half and lhcn two and clmnge. SUPERVISOR RUSSELL: Thc law calls lbr a gross operation size of seven acres or more. MS. THOMPSON: Okay. So it doesn't have to be continuous? SUPERVISOR RUSSELL: Do you want to clarify that, Kieran? But I am reasonably sure we are speaking to the size of the operation, not the size of the specific pamel. State Ag and Markets speaks to the siT. e of the operation not just the parcel. MR. BAIZ: In that case, you might tall under the modified ag site plan. If you don't have one particular piece but you have got two .... ASSISTANT TOWN ATTORNEY CORCORAN: The way it reads now, you have to be on a parcel. SUPERVISOR RUSSELL: Okay. Seven acres or greater. ASSISI'ANT TOWN ATTORNEY CORCORAN: It would have to be contiguous the way it is written now. MS. THOMPSON: Okay. Thank you. 14 Farm Stands Public He~l~lg July 1,2008 SUPERVISOR RUSSELL: Would anybody else like to address the Town Board on this issue. JOE GILLES: Yes, I have a couple of things to clarify, my name is Joe Gilles. My wife Barbara owns Barb's Veggies. I think everybody sure knows. When you say the produce must be grown on site, could you more clarify that'?. SUPERVISOR RUSSEI,L: Uh, yeah. Agricultural products that were grown and produced from the land that the tam stand sits on. If you are a cauliflower farmer and you are selling cauliflower because you have got the farm stand fight on the site where the cauliflower is grown. It is an on site production. Despite what your crop is, you need to produce it yourself and then sell it there, the idea is that direct sale from the site where you are producing the agricultural product. MR. GILLES: Okay. My sweet corn is grown in Aquebogue. What happens here? Is this permissible? SUPERVISOR RUSSELl.: I don't believe it would be, under the current... JUSTICE EVANS: Inaudible SUPERVISOR RUSSELL: Sixty percent of what you are selling is produced at the site you have, then the sweet corn can be put in .... ASSISTANT TOWN Aq~I'ORNEY CORCORAN: You need to be on a bona fide ag operation. So the farm stand needs to be on the seven acres or the other, if you qualify for the higher income. Sixty percent of your product needs to be grown by the operator, by you, within the town. MR. GILLES: Right. ASSISTANT TOWN ATTORNEY CORCORAN: So your sweet corn may then fall under your 40 pement but you need to have 60 percent grown within the town. MR. GILLES: So let me just ask a question that doesn't pertain to this. Suppose I have a farm stand and my thrming operation is in Riverhead Town and my farm stand is in Southold. What happens hem? SUPERVISOR RUSSELL: You would not be permitted to have a farm stand. MR. GILLES: So in other words, the one in Laurel gets shut down? SUPERVISOR RUSSELL: Is it on seven acres or more? MR. GILLES: Pardon me? 15 Farm Stands Public July I, 2008 SUPERVISOR RUSSELL: Is it on seven acres? MR. GILLES: It is on a seven acre parcel where the house is situated. SUPERVISOR RUSSELL: Seven acres that you are producing from? MR. GILLES: No, no. It is not me. I am just using this as an example. JUSTICE EVANS: lfit already exists, it becomes non-conforming. ASSISTANT TOWN ATTORNEY CORCORAN: Well, if it legally exists, it becomes non-contbrming, yes, and it can continue to operate. MR. GILLES: You have got some of these farmers who have their stand in Southold and farm in Riverhead Town. SUPERVISOR RUSSELL: Well, the goal here was to address the needs and concerns of Southold farmers. And I know that might sound a little jingoistic but my concern is to say for the local farmers, to make you prosperous, I want to not just give you expanded opportunity but to prevent undue competition from other operations that are not in the farm bus:,ness in Southold 'Ibsen. That sounds a little protective but my underlying concern here is tbr agricultural producers in Southold Town. MR. GILLES: Now my wife's operation is not on seven acres of land. But that has been preexisting there for 40 years. We do have an additional 15 acres that we rented 'A mile away. We have four acres were the stand is situated and 15 acres V2 mile away. SUPERVISOR RUSSELL: I don't know the circumstances there. I know your farm stand, I think you have been there for about two or three years? MR. GILLES: No, six. SUPERVISOR RUSSELL: Six already? MR. GILLES: Yes. SUPERVISOR RUSSELL: I don't know how this law would apply but .... ASSISTAN F TOWN ATTORNEY C©RCORAN: It depends if you have a farm stand permit already under the old law. If you have one under the old law .... SUPERVISOR RUSSELL: Do you have a t:arm stand permit? MR. GILLES: We applied for a farm stand permit and they keep telling us there is no permits. As a matter of fact, the first year we were in operation, Forrester came down and served us with papers for a permit and my wife Barbara went down to fill out all the paperwork .... Farm Stands Public July 1, 2008 16 SUPERVISOR RUSSELL: We need to have a candid discussion and I am sorry but I go by your farm stand every day and 1 am reasonably sure that the mangos and the melons aren't being grown locally. That presenls a problem. MR. GILLES: There are other farm stands in Southold Town that are doing the same things I am doing. SUPERVISOR RUSSELL: Are they producing agricultural products in Southold Town. MR. GILLES: Yeah, they got some agricultural products. SUPERVISOR RUSSELL: Then they would be, under this law, permitted to sell those accessory items. Because they are in the business of growing. MR. GILLES: So am I. SUPERVISOR RUSSELL: But presuming 40 percent of their products could be mangos and lemons. But, well, not if you don't have the production on site. In other words, you need the production on site to have ihe farm stand. MR. GILLES: I mean, there are reasons why my corn is grown in Riverhead. My son- in-law, who is a partner with us in the farm stand, they have a farming operation in Aquebogue. SUPERVISOR RUSSELL: I can honestly appreciate that. But again, we are trying to address issues for agricultural operations. MR. GILLES: Alright. Thank you. SUPERVISOR RUSSELL: Would anybody else like to come and address the Town Board'? DOROTHY KONARSKI: I am Dorothy Konarski from Farmer Mike's farm stand. I have a different problem. 1 have my farm stand on my house property. There is no farm there, there has never been for 36 years. That is how I operated it. I got my permit and everything t?om the Town and built it to the s~cifications. Am I okay? SUPERVISOR RUSSELL: You are fine. In fact, if you read... MS. KONARSKI: I need a permit? SUPERVISOR RUSSELL: No, you have it. If you read the law, we made a provision for the existing operations that might not be set back 50 feet, that already might be in existence. MS. KONARSKI: [ just wanted to make sure. Farm Stands Public H July 1, 2008 SUPERVISOR RUSSELL: Yeah. there was a specific provision in there to provide for ~(o DJ g",fl ~- the existing farm stands. MS. KONARSKI: Okay. Thank you. SUPERVISOR RUSSI~LL: Would anybody else like to come up and address the Town Board on this issue? COUNCILMAN KRUPSKI: I would just like to thank the Town Board for making this effort. I would like to thank the Ag Advisory. I know they put a lot of work into this and I know it is complicated. I think they took a pretty good stab at it. One thing that was never mentioned tonight was food safety.~ And if, you know, as you see in the news food comes in fi.om all over the country, from all over the world and there is problems. There is problems with, ii is mostly post harvest problems with the shipping, with the storage, with obviously there is other problems with pesticide use in other states, in other countries, where food comes in fi.om, things not regulated as closely certainly as they axe in New York, certainly not as closely regulated as they are on Long Island. And I appreciate the comments and support for local agriculture. That is a sight to hear. So when you buy local produce, you know it is picked when it is supposed to be picked when it is ripe, it is picked at its l~eshest. It has got the most nutritional value, when you buy produce you might as well go to King Kullen otherwise when you see a truck delivering things in wax boxes, you know it is coming from Peru or Jersey or some other foreign state. So 1 just, if you allow people to sell produce that comes in from other parts of the country and world, you really marginalize the farming in Southold Town, you really, you might as well sell cigarettes and beer, too. One thing that came up, that one gentleman brought up about how do you know what a legitimate agricultural operation is, that has come up in different areas of the town code that reference agriculture also and one thing that I have asked the Town Board to consider in the past and I have asked them to consider with this legislation ",s that i~ is hard to send a code enforcer out and I am not singling out our cun'ent code entbrcer, I am saying any code enforcer, they might not have the experience Jn agficultm'e. I think the Ag Advisory would serve a very good role in determining because of their experience in agriculture, what is a legitimate agricultural operation or not and they could advise whoever it is, whether it is the Planning Board or the Building Departnient on ff, e legitimacy of a farming operation. Another thing that I just want to ask to be added to the code that l, and I have reviewed it but I haven't seen it, is that in order to make it a legitimate agricultural operation, you shouldn't be allowed to open your doors for business until you actually harvest something that you have grown. In other words, you shouldn't open in May with watermelon and tomatoes and strawberries when everyone local knows these products aren't grown locally. You should be able to open your doors tbr business when you start to harvest, the spring produce. The lettuce, the peas, strawberries and things like that. And then you can go into business from then on. And I think that would take a step ibr keeping people in tine as far as what they se~l, as far as they seii what they grow. Farm Stands Public He~g 18 July 1, 2008 SUPERVISOR RUSSELL: I want to suggest that [ think the one issue here that we can resolve a lot of these issues is by bringing a clearer definition to what the 40 percent shall represent. We can meet the Planning Board's goals at focusing on encouraging the resale of products grown locally. We can maybe alleviate some of the business owners concerns with what the 40 percent is going to constitute. Albert, your concerns about tainted tomatoes but I have got to tell, I thought pineapples are in. I just bought three last week. They are not harvested yet? COUNCILMAN KRUPSKI: Ours aren't ready yet. SUPERVISOR RUSSELL: Yours aren't ready yet. I don't know how the Town Board feels about that. 1 actually appreciated the Planning Board's comments because they went to a mom general standard on parking. Trying to create a parking requirement for a farm stand is nearly impossible. Fam~ stands are so fluid in that they are very busy at some times and virtually vacant at others that you can never expect them to have the parking component that they would need to satisfy parking requirements on their busiest days. We had actually liberalized the code. The current code requires one space for every 100 squm'e feet, this one says one for every 200 square feet, which is similar to what the 'ousiness code is but it really is impossible to come up with something that is going to work given the cycle of that industry. COUNCILMAN WICKHAM: i would just like to comtnent as a note of information that the Town's Transportation Comraission is working simultaneously on a parking requirement tbr thrm stands. 'l'hat requirement is not in this law that is before us and I have no idea what the 'fate of it will be but they are working on a more focused, lengthy plan of how to resolve the parking requirements associated with farm stands. SUPERVISOR RUSSELL: Okay. Can I ask for the indulgence of the Ag Advisory Committee to give us two weeks to work with the SBA and others to define the 40 percent and ask for your cooperation and with Albert. That is the problem, the people that have all the knowledge. That is the problem, the people that have all the knowledge on thrm stands have i>een recusing themselves from the oeginning. You are talking to a liberal arts major. [ don't know ~nuch about farm stands. So we are trying the best we can, we are trying to accommodate a lot of concerns here. JUSTICE EVANS: 1 make a motion that we close the hearing. This hearing was closed ar 6:03 PM Southold Town Clerk Office Location: Town Annex/First Floor, Capital One Bank 54375 Main Road (at Youngs Avenue) Southold, NY 11971 Mailin~ Address: ~aC~a35 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 http://southoldtown.north fork.net BOARD OF APPEALS TOWN OF SOUTHOLD Tel. (631) 765-1809 Fax (631) 765.9064 April 2, 2010 Chris Baiz P.O. Box 726 Southold, NY 11971 RE: Edson Farm Stand Dear Mr. Baiz: As Chairman of the Agricultural Advisory Committee, the Zoning Board of Appeals would like your comments regarding Mr. Lewis Edson's request for a farm stand. Mr. Edson's property is located in Cutchogue and has been operating for many years as Santa's Christmas Tree Farm. Enclosed for your review are copies of the application and supporting documents, along with the Town of Southold Farm Stand code. The Board has adjourned this heating, pending comments and further review, until June 30th at 1:00 PM. If you have any questions or need additionally documents, please call our office. Thank yo~u for attention to this matter. Leslie Kanes Weisman Chairperson Eric. Office Location: Town Annex/First Floor, ~pital One Bank 54375 Main Road (at Yours Avenue) Southold, NY 11971 i~ ~Address: 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 MEMO TO: FROM: DATE: SUBJECT: http://southoldtown.northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD , Tel. (631) 765-1809 Fax (631) 765-9064 ~,~ Planning Board Gerard.~ P. GOehringer, ZBA Chairman November 24, 2009 R~quest for Comments ZBA # 6353 Edson, Lewis As confirmed With your office, the ZBA is reviewing the following application, and enclosed copies of Bud ng Department,s Notice of Disapproval, ZBA application, and latest map. The Planning Board may be involved under the site plan review steps under Chapter 280 (ZOning), and your review and comments are requested at this time. The file is av~iable for review of additional documentation at your convenience for reference if needed. NAME iTAX #~/ ZBA ZONING REQUEST PLANS PREPARER ZONE CODE DATE '~ STAMPED Edson, Lewis 1000-102- #6353 Chapter Farm Stand March Peconic 2-16; 72, Art. I 20,2007 Surveyors R-80 Section revised 72-4 + Nov. 18, ~ Art. 1 2009 ,~ Section . 72-6 © Your comments are appreciated by December 30, 2009. Thank you. Encls. RECEIVED SUPREME COURT - STATE OF NEW YORK I.A.S. PART XXXVI SUFFOLK COUNTY PRESENT: HON. PAUl, J. BAISLEY, JR., J.S.C. ¥OWN OF SOUTHOLD, Plaintiff, -against- FltE ESTATE OF GRACE R. EDSON and LEWIS. EDSON a/k/a LEFFERTS P. EDSON, Dcfendants. INDEX NO.: 11814/2007 MOTION DATE: 2/19109 MOTION NO.: 001 MO ~,~D OF APPEALS PLAINTIFF'S A~TORNEY: SMITH, FINKELSTEIN, LUNDBERG, ISLER & YAKABOSKI 456 Griffing Avenue, P.O. Box 389 Riverhend, New York 11901 DEFENDANT'S ATTORNEY: WICKHAM, BRESSLER, GORDON & GEASA, P.C. 13015 Main Road, P.O. Box 1424 Mattituck, New York 11952 ORDERED that the motion (motion sequence no. 001) ofplajntiffTown of Southold for ,m order pursuant to CPLR'R. 3212 granting summary judgment to plainfiffand permanently enloining and restraining defendants and their agents from using and occupying the ascessory agricultural building on their property located at Main Road, Cutchogue, New York for retail use unless and until such time as the violations of the Southold Code and New York State Code have been remedied and defendants have obtained a certificate of occupancy for such use from the Fown of Southold is granted. Thc record reflects that defendants are the owners of an approximately 23-acre parcel of land located in the Town of Southold (the "Town"). Since approximately 1986, the property has been operated as a tree nursery known as "Santa's Christmas Tree Farm," and the majority of its acreage has been planted with evergreens in various stages ofdevelopmcot, principally for sale as CI,ristmas trees during the Christmas season. The property is presently zoned "R-80 Residential I.ow-Density" (Town Code of Town of Southold §280-5) and is improved with a 2,000-square- fimt single-family residence and an approximately 8,000-square-foot "accessory nursery buildingT' I'he record further reflects that thc original accessory nursery building, comprising approximately 2,520 square feet, was constructed pursuant to a building permit issued on June 27, 1986, and for which a. certificate of occupancy was issued on January 13, 1987. Thereafter, on Jm~e l, 1990, a building permit was issued for the construction of a 5,460-square-foot addition to the existing accessory nursery building, and a certificate of occopancy for thc addition was issued on August I, 1990. Index No. 11814/2007 la ~t.g complaint, dated April 11,2007, plaintiffalleges that since around 1990, defendants have operated a retail store, known as "Santa's Christmas Tree Farm and GiR Shop," in the acc c~sory building, where they engage in the year-round retail sale of holiday ornaments, decorations, ligufines, gifts and related products not grown on the premises. Plainfiffaileges that the operation cfa retail store is not a permitted use in the R-80 zoning distxict pursuant to §280- 131 At of the Town Code of the Town of gouthold (the "Code"). Plaintiff further alleges that defendants do not have a certificate of occupancy for the retail use of the aeceasory building, as required by Code §144-15, and that changes to the electrical system have not had the required inspections. Plaintiff further alleges that, without obtaining the necessary approvals, and in violation of the Code, defendants have expanded their accessory retail business to include almost exclusively products not manufac~red or grown on the premises, and that defendants' continued use o f the premises poses a risk to the health, safety and welfare of the pall'OhS, employees and residential neighbors of Santa's Christmas Tm Farm and GiR Shop. Plalntiffsenks a permanent mj unctian enjoining the alleged Code violations by defendants, and now moves for summary ludgmcat on its claims. In support of the motion, plaintiff has submitted the affidavit of the Town's Code Enlbreement Director Edward Forrestar, sworn to September 8, 2008; the affirmation of its attoroey, Phil Siegel, Esq., dated September 8, 2008; a copy of the pleadings; a copy of the building permit/certificates of oecopaney issued in connection with the accessory nursery building; copies of the Code provisions alleged to be applicable; and portions of defandants' prior unsuccessful application for a change of zoos from R-80 to B Business. In their answer, dated April 11, 2007, defendants deny the substantive allegations of plaintiff's complaint, and assert the affirmative defenses of estoppol, walvar, selective cnlbrcemcnL and laches, as well as the existence of a prior actiun for the same relief under Index No. 8034/2004, as bars ~;o plaintiff's claims. Defendants vigorously oppose plaintiff's motion, and have submitted in opposition the affidavit of defendant Lewis Edaon, sworn to December 3, 2008; the affirmation of defendants' attorney, Eric J. Breas[er, Esq., dated December 12, 2008; and the affidavit of Richard F. Lark, sworn to November 24, 2008; together with various exhibits including copies of documents allegedly pertaining to the prior action under Index No. 8034/2004:: copies of earlier Code previsions alleged to be applicable to defendants' operations at the subject property, a decision of the local criminal court alleged to be relevant; and copies of the certificates of occupancy for the accessory building on the premises.. The affidavit of Edward Forrester, the Town's Director of Code Enforcement, reflects that defendants are operating a large retail establishment in the accessory building on theh' agricultural property which is located in the R-80 residential zoning district. Mr. Forrester's affidavit f~nber reflects that the vast majority of preducts sold by defendants in their retail store arc not grown on the prcmise~, including manufactured holiday ornaments, do:orations, lights, figurines, gi~s, and related products. Mr. Forrester avers that with the exenpti6n of Chrislmes trees, garlands and wreaths during the holiday season, the defendants do not sel! agricultural products in the accessory nursery building. RECEIVED ~OARD OF APPEALS lndex No. 11814/2007 (rode §280~ 13(A) enumerates the permitted uses for buildings and premises in the A-C, I~, -80, R - 120, R-200 and R-400 zoning districts. As relevant to the instant action, §280-13(A) permits "(2) The following agricultural Operations and accessory uses thereto...: (a) The raising of field and gsrden crops, vineyard and orchard farming, the maintenance of numerics and the seasonal sale of products grown on the prernfses" [emphasis added]. (c) Barns, storage buildings, greenhouses (including plastic covered) and other related structures, provided that such buildings shall conform to the yard requirements for principal buildings." I'ursuant to Code §280-8(E), "la]ny use not pe ,rmitted by this chapter shall be deemed to be prohibited." Thus, except to the extent ofpormitting the accessory seasonal sale of products grown on the premises of an agricultural operation, the maintenance of a retail store is not a pelmitted principal or accessory use within the R-80 zoning district. It is undisputed that the certificates ofoecupency for the accessory building, dcsetibed therein es an "accessory nursery building" and "addition to an existing agricultural building es applied for,', do not authorize its use as a retail store. The affidavit of Mr. Forrester fimther avers that pursuant to Code §280-127, the expansiofi of the agricultural building for the operation of defendants' retail store required site plan approval by the Town of Southold Planning Board (the ordinance provides that "la]ny cbange in use or intensity of use which will affect the characteristics of the site in terms of parking, loading, access, drainage, open space or utilities will require alte plan approval'). The submissions establish that site plan approval was neither sought nor obtained by defendants. In addition, the record reflects that defendants' prior application to change the zoning of the portion of their property occupied by the accessory building from residential to business was denied. Plaintiff's submissions establish, prirnafacie, that defendants' operation of a large retail establishment in an building authorized to be used only for accessory agricultural use, and the sale therein of products the majority of which are not grown on the praraises, is a violation of the Town's zoning ordinances. It is well established that "la] town is entitled to a permanent i~iunction to enforce its building and zoning laws upon demonstrating that the party sought to be e~loined is acting in violation of the applicable provisions of local law" (Town ofBrookhaven v Mascia. 38 AD3d 758 [2d De'pt 2007]). Plaintiff's submissions thus establish its prima facie ~mitiement to a permanent injunction enjoining defendants' operation of their retail store in the accessory building on the premises (id.;Town Law §§135(1), 268(2)). In opposition to the motion, defendants argue that their retail operation is merely incidental and accessory to the principal agricultural use of the property as a Christmas tree fan'n, and that the Town building department issued the certificate of occupancy for the aec~sory building with full knowledge of the nature of the use. Defendants contend that the Town- many of whose elected officials regularly patronized the business - reeoguized its use as legitimate and even took steps to aid in its development. Such assertions, however, even if true,~ are irrelevant to -3- Index No. ll814/2007 dctL'ndants' arguments that the Town is estopped from now enfoming its zoning laws against it. It ts well established that "estoppel may not be invoked again~ a municipality to prevent it from discharging its statutory duties" (Parkview Associates v New York, 71 NY2d 274 [1988]). Mere~ver. "a municipality may not be estopped from enforcing its zoning laws either by the ~ssuance of a building permit or by laches" (City of Yonkers v Rentways, Inc., 304 NY 499, 505). Defendants' further assertions that plaintiff is selectively prosecuting defendants are m~supported by any admissible evidence, and there is no showing that additional discovery will meld facts that support defendants' arguments (Town ~fBrookhaven v Mascia, supra, 38 AD3d Defcodants fuaher argue that the sale of Christmes-related items was pon'aiRed under the · ,~ming ordinance in effect at the time they began their retail operations. The affidavit of Mr. I:~dson asserts that the property wes then located in an "A" zoning district, and that there was no reslricinm regarding the sale of items not grown on the premises. The copy of the "1971 zoning ordinance Section 100~30" annexed to Mr. Edann's affidavit as Exhibit G fails, however, to support defendants' argument. Code § 100-30(A), applicable to the "A Residential and Agricultural District," permitted "the following commercial agl'iculteral operations end aec~sory uses thereto... (a) The raising of field and garden crops, vineyard and orchard fam~ing, the mainteeence of nurseries and the seasonal aale of products thereof in buildings, subject to the Ikdlowing special requirements: [1 ] All one-story buildings for display and retail sales of agricultural and nursery products grown primarily on the premises shall not exceed one thousand I I.D00) square feet in floor arco...." [emphasis added]. Contrary to defendants' argument, the statule did not authorize the sale of items not grown on the premises. Moreover, the retail sale of products not grown on the premises is not a generally recognized accessory use to agricultural property and will be prohibited even in the absenco ofen express statutory provision such as that at ~ssu¢ here (Ecker v. Dayton, 234 AD2d 584 [2d Dapt 1996]), Similarly unsupported is defendants' essertion that site-pice approval was not r~quired. I'he record reflect that Code §280-127 wes adopted in 1989 and thus, although not applicable when de fendants assertedly commenced their retail operations, was applicable in 1990 when delbndents expanded the accessory building. The fact that the building inspector at the time may not have required site pten approval for defendants' planned expansion of the building is not dispositive, as the building permit application building did not give notice of the scope and propose of the planned expansion, and defendents' own submissions establish the limited scope of defcodanVs retail operations prior to the expansion oftha accessory building. the affidavit of Richard F. Lark, who describes himself es a former Special Assistant District Attorney of Suffolk County for the purPOSe of prosecuting violations of the Southold Town Codes end advising the Southold Town Building Depert~-nent es to zoning and building cede matters, reflects Mr. Lark's personal observations of defendents' retail operations in late Novcmber or early December of 1986~ when he was dispatched to the property to investigate possible zoning code violations as a result of "numerous complaints" regarding traffic problems BOARD OF APPEALS Index No. 11814/2007 at thc entrance to the farm and allegations regarding the sale of Christmas ornaments, lights and decorations that were not grown or made on the premises. The affidavit reflects that as Mr, Lark entered the (then much smaller) agricultural building he observed "balled Christmas trees, some ,,t'which had decorations on them, along with evergreen wreaths and roping on display all of which were for sale...There were several rows of tables upon which various items such [as] Christmas tree ornaments, coinsed lights and other kinds of Christmas decorations were displayed rot sale. Mr. Lark states that Mr. Edson told him at the time that the sale of those items winch obx iously were not grown on the premises was on a seasonal basis and were used to promote the ,~ale of the Christmas trees, and that the rest of the year the building was used for the storage of ~upplies, equipment, fertilizer and tractors that woe utilized in the nursery. Mr. Lark concluded that the sale of these manufactured Christmas-type items was "accessory and incidental to the i~rime use of the property which was the planting, cultivation and growing of Christmas trees for ~ale." and so reported to the then-building inspector. Mr. Lark states that thereafter the building respecter visited the property, concluded that the owner was properly operating within the zoning code. and subsequently issued a certificate of occupancy for the accessory nursery building. The affidavit of Mr. Lark thus establishes that prior to the 1990 expansion, defendants' ~ctall operations - although coneededly including the sale of a limited number 0f manufactured ~tems not "grown on the premises"- were relatively modest, and that the principal nsc of the building was for the seasonal sale and display of Christmas trees, evergreen wreaths, and roping grown on thc premises. It is undisputed that the present retail operation is vastly expended, and d~at the sale of items not grown on the premises now predominates, lndeed, Mr. Lark's description of"several rows of tables" displaying Christmas-related items must be contrasted with dcl:endants' own description of the currant use of the"accessory nursery building," as reflected by defendants' webpage, a printout of which is annexed to plaintiff's reply affirmation as Exhibit R. [hat document begins, "When you walk into our store you will say 'WOW," an assessment with which, upon perusing the contents, the Court wholeheartedly agrees. Defendants' webpage boasts that defendants' "retail space measures almost I0,000 square feet making us one of the lasgest Christmas stores in the no~heest" and ~ports that defendant is "a Dept. 56 t~ailer of Snow Village, Dickens, The City, New England, the North Pole and Snow Babies. Other lines that we calry include, Yankee Candle, Funlanini, Old World Christmas, Lenox just to name a few. We carry all tree trimmings, gift wrap, cards and many specialty items. We have a large selection Of personalized items and have a local artist on premise to personalize any ornament you choose. AI.'~ we make our own fresh wreaths decorated on premises. If you visit after Thanksgiving we have Santa here on the weekends." There is no logical process whereby the above-enumerated list can be considered to constitute usual and customary accessories to an agricultural operation. It is apparent from the record herein that the building permit and certificate of ooenpancy issued in connection with the cnnstrnction of the addition to defendant's accessory nursery building in 1990 did not and could not authorize the operation ora 10,000-square-foot retail store for the sale of items the vast majority of which are neither agricoltural or nurseff-related and which were not grown or produced on the premises (see. Ecker v Dayton, supra. 234 AD2d at 585 [2d Dept ! 996]). The record is clear that the accessory use of the building has expanded well beyond that contemplated by the zoning ordinances, and the Town is properly acting to restrict such impermissible use and protect the character of the residential neighborhood in which defendants' Christmas tree farm is located. 35-3 RECEIVED BOARD OF APPEALS -5- Index No, 11814/2007 Defendants' submissions in opposition to plaintiff's motion fail to rebut plaintiff'sprima tack~ showing of entitlement to summary judgment or to demonstrate the existence of material issues of fact. In light of the foregoing, plaintiff's motion for summary judgment is granted, and defendants are permanently enjoined from operating a retail store on their property for the sale of items not grown on the premises until such time as the violations of the Southold Town Code bare been remedied and defendants have obtained a certificate of ocenpancy for such retail use. Settle judgment. 80ARD OF APPEALS l)ated: August 6, 2009 J.S.C. X FINAL DISPOSrI'ION NON-FINAL DISPOSITION -6- Addendnm to Lewis Edson Farm Stand Application 72-7 A. 65% of gross sales shall come from the sale of Christmas Trees cut at the farm. Approximately 20,000 Trees at various ages are grown on the farm continuously fxom year to year. B (1) I do not bring in any Chfis~ trees from any out side source v3thin Southold Town or without. B (2) 15%ofgrosssslescomef~omthesaleofdecoratedandundecorated wreaths. The wreaths are made on the premises from greens grown on the farm. B (3,4) 20% of gross sales come from the sale of Chri~hsuas items, i.e. tree stands ornaments, cards, bells and general Chriatmas items. RECEIVED BOARD OF APPEALS HISTORY OF SANTA'S CHRISTMAS TREE FARM My father, Lefferts Edson a local attomey, purchased the acreage fronting mute 25, in June of 1974, in the name of Cutchogue Estates Inc. His intention was to ultimately develop a residential subdivision similar to Crown Land, a subdivision in Cutchogue which he had previously completed. In 1979 the potato farmer who had I=c. cn renting the farm retired. My father was not yet ready to start the subdivision, and he rented the bulk of the farm to a local sod grower. At that time I was granted permission to plant 3-4 acres of Christmas trees. My prima~y employment was my real estate business, and I was not sure if I could do both businesses wall. After two years I felt I could handle both, and over the next couple of years I planted the entire farm with fir trees. In 1984 I bought the adjoining 12 acres along Depot Lane and over the ensuing 2 yearn planted that property. By 1986 the Christmas trees were large enough to harvest. I built a Morton Building in June of 1986, and opened for Christmas tree sales in September of that year. Customers were allowed to pre tag their trees and retum during the Christmas season to cut them. These customem were typically the same people who came to the North Fork for the tall harvest of vegetables, grapes, and pumpkins. During the first selling season the building had a dirt floor and no heat. After one year and the initial success of the business, heat and a cement floor were added. In 1987, guided by the 'Jens' decision, I added some Christmas items. On the busy weekends the building was overcrowded and traffic waiting to get on the property from route 25 was backed up 15 to 20 cam. After 2 seasons, the entrance was widened to better accommodate two-way traffic, and an exit was created over the 12 acre property facing Depot Lane. These modifications solved the seasonal traffic problem. During these early years the building depa[E,ent sent local attorney Dick Lark to look over the Christmas items being sold, and to render an opinion of the legality of the operation. His report to the department clearly stated that the business complied with town code. In 1989, my father passed away and I inherited his acreage at this location. By 1990 the original building was bumting atthe seams and an addition of 6000 square feet was constructed. The addition was designed to expand the use of the original building. It included skylights, heat, 11 - 3'x4' side wall windows, 2 sets of double doors opening to a staging area where trees were brought in from the field, wrapped, and loaded for customers. I can remember Vic Lessard telling me to "make sure that you get exit signs over the doors; exit signs are only required where there is public assembly." Since 1990 the seasonal business has operated on the same basis: open after Labor Day and closed in early January. During the late 90's I allowed the local Boy Scouts to sponsor a small camival (3 rides) at the farm as a fund raiser. These special carnival events required, and were granted, formal approval each year by the Town Board. At the time I took the Town Board's approval of this event as a tacit endorsement of our value to the community. I certainly didn't believe that the board would have approved the Boy Scout request if it felt that I was running an illegal operation with a sedous traffic preblem. If the carnival operator hadn't died, I am confident that this successful event would have continued. SUMMARY I will go to my grave believing that Santa's Christmas Tree Farm, the business that I have built and run for the past 24 years, has been legally operated and a valuable asset to the town and its residents. Presently over 20,000 trees are being grown on the farm. During this time period there have bccn many municipal personnel changes in the Building Department, Town Board, Planning Board, ZBA, and in the Supervisor's office. Many, many of these public servants and their families have been loyal and consistent customers of Santa's Christmas Tree Farm. There have also bccn changes to the town code. There are very few people who have been around long enough to see how this situation evolved. I continue to believe that Santa's Christmas Tree Farm is a good and productive business that serves the interests of the community, is legally constituted, and that operetes within the business paremeters established by Southold town. I am, however, a pragmatist and am wi#lng to compromise in a way that would comply with the new farm stand ordinance. It is my sincere hope that this review of the history of my business and our meeting will result in a productive and amicable solution. Respectfully submitted Lewis Edson March 15, 2010 STATE OF NEW YORK : COUNTY OF SUFFOLK TOWN OF SOUTHOLD : LOCAL CRIMINAL COURT THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, : -against- : FRED P. wENS and JEAN C. JENS d/b/a : JENS FLO~ER SHOP & GREENHOUSES, Defendant. Docket No. DECISION Defendants purchased two adjoining parcels of real property in the Town of Southold. They obtained title by two deeds, one dated October 10, 1967, and one dated September 27, 1969. Throughout defendant's ownership, both parcels have been within the "A" Residential and Agricultural District for zoning purposes. On September 25, 1970, defendant, FRED P. JENS, applied for and was grante~ a building permit to "build new fiberglass display stand and addition to existing greenhouses" (Exhibit I) on the above-mentioned premises. The defendant did, in fact, build in accordance with the building permit. The "addition" expanded the square footage of the existing building from less than 1000 square feet to square footage in e~cess of 1000 square feet. On March 31, 1983, George H. Fisher, Senior Building Inspecto o4 the Town of Southold, went to the defendant's premises and observed t~at the defendant was offering for retail sale agricultural and nursery p~oducts in a building or buildings with a floor area exceeding 1000 square feet. At the same time and place Mr. Fisher purchased from defendant one_stuffed toy bunny, a gold colored hanger, and a brown basket, none of which were made or grown by defendant at the premises. On April 1, 1983, the defendant was given 'two written orders to remedy violation from the Southold Town Building Inspector's Office. The first order stated that defendants were in violation of Southold Tow~ Code Chapter 100 ('Zoning), Article III, Section 100-30A(2)(a)l by (having) "...products in an area exceeding one thousand (1,000) square feet of floor .... " By that order, the defendants were ordered to remed] the alleged violation on or before "5:00 PM on the second (2nd) day of April, 1983, by closing of~ or defining an area of one thousand (1,000) square feet. The second order also stated that the defendants were in violation of Southold ToWn Code Chapter 100 (Zoning) Article III, Section 100-30A(2) (a) l by having "...sales of products not grown or made on premises .... " By the second order, the defendants were ordered to remedy the alleged violation on or before "5:00 PM on the second (2n~) day of April, 1983, by removing from the sales area all'item~ not made or grown on premises". The defendant took no action in response to the two orders. Thereafter, two informations were filed with this court. The first information charges the defendant with two (2) separate counts: Violating (1) Section 100-30A(2) (a) [1] of the Code of the Town of Southol~, and (2) Section 100-145 of the Code of the Town of Southold. The alleged violations occurred because defendant was dis- playing for retail sale agricultural or nursery products in an area exceeding one thousand (1,000) square feet of floor area and for -2- defendant's failure tO comply with the first "order to remedy violatior hereinabove mentioned. The second information charges the defendant with tWO (2) separate counts: violating (1) Section 100-30A(2)(a) [1] of the Code of the Town of Southold, and (2) Section 100-145 of the code of the Town of Southold. The alleged violations occurred because defendant was selling agricultural and nursery products not primarily grown or made on the premises and for defendant'S failure to comply with the second "order to remedy violation" hereinabove mentioned. above sections read as follows: §100-30. Use regulations- In an A Districtt no ~uilding or premises shall be used, and no building or part Of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part, for any uses except the following: A. permitted useS. (2) The following commercial agricultural operations and accessory uses thereto, including irrigation, provided that there shall be no storage of manure or other odor or dust-producing substance or use, except.spraying and dusting to protect vegetation, within one hundred fifty (150) feet of any lot line: (a) The raising of field and garden crops, vineyard and orchard farming, the maintenance of nurseries and the seasonal sale of productS thereof in buildings, subject to the following special requirementS: [1] Ail one-story buildings for dis- play and retail sales of agricultural and nursery products grown primarily on the premises shall not exceed one thousand (1,000) square feet in floor area .... -3- S100-145. Penalties for offenses. For every offense' against any of the provisions of this chapter or an~ regulations made pursuant thereto, or failure to comply with a written notic~ or order-of the Building Inspector within the time fixed for compliance therewith, the owner, OCCupant, builder, architect, contractor or their agents or any other person who commits, takes part or assists in the commission of any such offense or who shall fail to comply with a written order or notice of the Building Inspector shall, upon conviction thereof, be guilty of a violation punishable, by a fine not exceeding fifty dollars ($50.) or imprisonment for a period not to exceed six (6) months, or both. Each week's continued offense shall constitute a separate, additional violation. When the defendant purchased the property and, subsequently, put on the addition, there was no limitation concerning the allowable square footage for floor area dedicated to the display and retail sales (Building Zone Ordinance, Town of Southold, Article III, adopted May 24, 1966). The section which is now applicable was adopted by the Southold Town Board on November 23~ 1971, effective date December 16, 1971. The People argue in respect to the charge that the display and retail sales made "maximum square footage" from the original structure and addition are a permitted use but that defendant must limit the floor area for such use to 1000 square feet. The defendant argues that the addition, a greenhouse structure, is not a building under the Zoning Ordinance and, therefore, the defendant does not violate the maXimum square footage requirement by definition. Both the People and defendant point out that when the addition was constructed, a greenhouse did not require a building permi -4- becaUse the Building Department of Southold Town did not inClude a greenhouse within its interpretation of the term "building". The reasor was the New York S%ate Building Construction Code exempted non- residential farm buildings, 9 NYCRR 801.2a. The Building Department's interpretation was made even though both the Zoning ordinance in effect at the time of the addition's construction and the current Zoning Chapter of the Southold Town Code both contained definitions of the ter~ "building" 1 The interpretation by the Building Department was erroneou The State Building Code and the zoning legislation of the Town of Southold were adopted for separate and distinct purposes. Executive Law, Article 18 S371 and S390 (now repealed); Building Zone Ordinance 4--BUILDING--A structure having a roof supported by walls and when separated by a party wall without openings, it shall be deemed a separate building. (Building Zone Ordinance,' Town of Southold, Article I ~100(4), effective 5/24/66 through 12/15/71). BUILDING--Any cembination of materials forming any construction, except where entirely underground so as to permit the use of the ground above same as if no "building" was present. The term "build- ing" shall include the term ,,structure", as well as the following: (1) Signs. (2} Fences. (3) Walls, other than retaining walls projecting above the ground not more than three (3) feet at the higher ground level and not more than six and one-h~lf (6-1/2) feet at the lower ground level. (4) Radio and television receiving and transmitting towers and ante~nae, except for such antennae installed On the roof of a building and extending not more than twenty (20)' feet above the highest level of the roof of such building- (5) Porches, outdoor bins and other similar structures. (Southold Town Coae ~100-13(B)). -5- Town of Southold (effective 5/24/66 through. 12/15/71) Preamble; Southolt Code, Chapter 100, Zoning, Sl00-10. The Building Department was constrained by the-definition of building in the applicable zoning ordinance for zoning purposes and could not look beyond the definition contained therein. "It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise mean- ing, to go elsewhere in search of conjecture in order to restrict or extend the meaning." People v. Shafer, 30 A.D.2d 213, 291 N.Y.S.2d 221, 225. Therefore, when the addition was constructed it was a building within the meaning of the Southold Town Zoning ordinance. As urged by the People, the court agrees that the defendant is conducting a permitted use on the subject premises. The defendant has a nonconforming building existing on their premises. The building existed and exceeded one thousand (1,000) square feet prior to the adoption of Southold Town Code ~100-30A(2) (a) [1]- The only provisions of the Zoning Chapter which deal generally with all nonconforming buildings deal with'restrictions on structural alterations and recon- struction, Southold Town Code §100-118E and F. The People urge that the final sentence of Southold Town Code §100-30A(2)(a)[1] requires that the defendant had to reduce the square footage of the display area within one (1) year of December 16, 1971. The portion of that section which the defendant is charged with violating states in part, "All one-story bu'i'l'di'~S''(emphasis added)...shall not exceed one thousand (1,000)' square feet in floor area." The final sentence of -6- that section reads, "Any ~tan~ (emphasis added) in existence at the effective dat~ of this chapter must within one (1) year, comply with all of the provisions hereof." "The general rule...is that zoning ordinances, being in derogation of common law property rights must be construed strictly against the zoning authority." C. DeMasco Scrap Iron & Metal Corp. v. Zirk, 62 A.D.2d 92, 405 N.Y.S.2d 260, 264. In this case the word building is defined in the ordinance (see above) and the word "stand" is not. Evidently, the Southold Town Board wished to differentiate between "one-story buildings" and a "stand". Therefore, defendant's one-story building did not fall within the directive to "stands" but rather became a permitted non- conforming use.' Southold Town Code $100-118(A). The defendants are also charged with selling a toy bunny made in Korea and a basket made in China in violation of Southold Town Code S100-30A(2)(a)[1], which is quoted hereinabove. The information alleges, as the criminal activity, that the "defendants were selling agricultural and nursery products not primarily grown or made on the premises." The ordinance permits co~ercial agricultural.operations and it is uncontested that, other than the sale of the abovenoted items defendants operate a co~ercial agricultural operation. In addition, the ordinance permits accessory uses to a commercial agricultural operation including but not limited to "seasonal sales of products thereof" and the sale of agricultural and nursery products grown pri- marily on the premises. There is no restriction in the ordinance prohibiting the sale of productS not ma'd____~eon the premises. The sale -7- of products not made on the premises may or may not be .an accessory use to a co~nercial agricultural operation envisioned by the Town Boar~ when it adopted the section. The toy bunny and basket were surely not grown on defendant'S premises. However, the soil sold with plants in a greenhouse and the containers for plants in a greenhouse are not grown on the premises. It is unclear to this court what the restriction of sales tO "products grown primarily on the premises'" means. Does this refer to volume of' weight, volume of sales (quantitatively or monetarily) or the length of time the products grew on the premises? Could this pro- hibition mean that if one is selling products, within a one-story building in the A Residential and Agricultural District one can sell a greater or lesser variety of products than in a two-story building or outside'of any building whatsoever? The defendant is charged with violating a criminal statute. "It is a f~ndamental requirement of due process that a criminal statut~ must be stated in terms which are reasonably definite so that a person of ordinary intelligence will know what the law prohibits or commands." People v. Cruz, 48 N.Y.2d 419, 423 N.Y.s.2d 625, 626; People v. Goodman, 31 N.Y.2d 262, 338 N.Y.s.2d 97,102. "In respect to zoning ordinances, which are criminal in nature, regulations limiting the use of property must be strictly construed, and if there 'is any doubt as to their meaning, it must be resolved in favor of the property owner. Town of Huntington v. Barracuda Transport Co. Inc., 80 A.D.2d 555, 435 N.Y.S.2d 354, 356. -8- Based upon the foregoing, the court finds the terminology "grown primarily on the premises" as set forth in Southold Town Code, $100-30A(2)(a) [1]~ as unconstitutionally vague as violative of the fundamental requirement of due process. In that accessory uses to commercial agricultural operations are permitted but undefined in the Southold Town Code, the court must resolve the doubt as to whether or not the defendant's sales of the toy bunny and basket are prohibited acts in favor of defendant. The remaining charges of violating the building inspector's order to remedy violations presupposes the existence of violations, and there were none. Ali charges against defendants are dismissed. Dated: May 17, 1984 With regard to the March 17, 2010 memo frbm Heather Lanza, AICP, Planning Director to Leslie Weisman, Chair, Zoning Board of Appeals and the members of the ZBA (Re: SCTM# 1000-102-2-16) I, respectfully submit the following paragraph by paragraph comments: Parag 1: The "60/40' requirements of Chapter 72: Santa's Christmas Tree Farm currently has 425 rows of trees under cultivation. Each row contains approximately 50 trees, yielding over 21,000 trees in various stages of growth. It takes between 7 and 8 years for a Christmas tree to reach salable height. Depending on demand and how many trees have reached maturity, we harvest between 1500 and 2000 trees each year. Dudng the 2009 holiday season, sales of Christmas trees and wreaths were $110,000. Of this amount, approximately $15,000 came from wreath sales. Assuming no significant drop in demand and stable retail pdces (trees $60); I project similar sales for 2010. Individual sales of omaments and non agricultural products average between $10 and $20 per transaction. Based on historical sales ratios, a softening ornaments market, and a significantly smaller retail area, I project 2010 sales of non agricultural products of approximately $25,000 to $30,000. I have based my wholesale purchases on these projections. I understand the "60/40' rule and its importance to the approval and continuance of my permit. I will take all appropriate measures to guarantee the proper sales ratio. Parag 2: Meeting the agricultural production and income standard There has never been a question about my compliance with the agricultural production and income standard. The assessors have granted this farm an agricultural exemption for well over 20 years. Parag 3: Legislators' intent and other tree farms The new farm stand ordinance specifically notes Christmas trees, so it seems unlikely that this agricultural product would be an exception, despite the fact that tree farming and retailing demand different techniques, equipment, and space than do fruit, vegetable, or flower farming. Also note that the wreaths made from the greens grown at the farm, are made at the farm stand. I estimate this production will take up 20 to 25% of this space. When I spoke to Supervisor Russell last fall he did not express this reservation to me. On the contrary, I thought he was pleased that we were coming to a solution, and that he was sympathetic to the needs of all farmers, not just fruit and vegetable growers. As for other tree farms having much smaller incidental retail areas, I can only surmise it's because they are much smaller farms or that they have a modestly different business strategy. Parag 4: Maximum size of farm stand This, of course, is the reason that I have an application before the ZBA. I have submitted plans to partition the building in a way that reduces the farm stand portion of the building to the appropriate square footage. Please note 72-4 Definition of farm stand "any primary structure or portion of a structure..." PLEASE NOTE THE WORD PORTION. I believe that most winedes operate with an arrangement like I am proposing: a tasting and sales reom which is a portion of a larger structure that has other non public areas devoted to storage, wine making equipment, product assembly, vehicles etc I hope that these comments are helpful in your deliberations. Owner, Santa's Christmas Tree Farm Office Location: Town Annex/First Floor, ~apital One Bank 54375 Main Road (at Youiigs Avenue) Southold, NY 11971 http://southoldtown.northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD Tel. (631) 765-1809 Fax (631) 765-9064 November 27, 2009 Mailing Address: 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Mr. Thomas Isles !Director Suffolk County DePartment of Planning P.O. Box 6100 Hauppauge, NY 1'1788-0099 Dear Mr. Isles: Please find enclosed the following application with related documents for review pursuant to Article::XIV of the Suffolk County Administrative Code: ZBA File # 6353 Owner/Applicant: Edson, Lewis Action Requested: Proposed use of the existing building as a farm stand. Within 500 feet of~~ (X) State or County Road ( ) Waterway (Bay, Sound, or Estuary) :. ( ) Boundary of Existing or Proposed County, State, Federal land. i.' (X) Boundary of Agricultural District '~ ( ) Boundary of any Village or Town If any other inforrdation is needed, please do not hesitate to call us. Thank you. Very truly yours, Encls. Gera~ By )Goet)ringer , BOARD MEMBERS Leslie Kanes Weisman, Chairperson James Dinizio Gerard P. Goehringer George Homing Ken Schneider Southold Town Hall 53095 Main Road · P.O. Box 1179 Southold, NY 11971-0959 Office Location: Town Annex/First Floor, Capital One Bank 54375 Main Road (at Youngs Avenue) Southold, NY 11971 http://southoldtown.northfork.net ZONING BOARD OF APPEALS TOWN OF SOUTItOLD Tel. (631) 765-1809 ° Fax (631) 765-9064 July 28, 2010 Lewis Edson P.O. Box 939 Cutchogue, NY 11935 Re: ZBA Appl. #6353 Dear Mr. Edson: Please be advised that the Board of Appeals voted to grant your application for a farm stand permit at the Special Meeting of July 13, 2010. The written decision will be signed by the Chairperson and sent to you by our office as soon as the Town Attorney has completed her review of the text, which has been delayed due to her very demanding schedule. Thank you for your cooperation. SincerelyF~ Vicki Toth Board Assistant BOARD MEMBERS Leslie Kanes Weisman, Chairperson James Dinizio Gerard P. Goehringer George Homing Ken Schneider Southold Town Hall 53095 Main Road · P.O. Box 1179 Southold, NY 11971-0959 Office Location: Town Annex/First Floor, Capital One Bank 54375 Main Road (at Youngs Avenue) Southold, NY 11971 http://southoldtown.northfork.net ZONING BOARD OF APPEALS TOWN OF SOUTHOLD Tel. (631) 765-1809 · Fax (631) 765-9064 August 19, 2010 Lewis Edson 30105 Route 25 Cutchogue, NY 11935 Re: ZBA # 6353 Dear Mr. Edson: Transmitted for your records is a copy of the Board's July 13, 2010 Findings, Deliberations and Determination, the original of which was filed with the Town Clerk regarding the above application for variances. Before commencing any construction activities, a building permit is necessary. Please be sure to submit an application along with a copy of this determination to the Building Department. If you have any questions, please call the office. Sincerel~-x~ Vicki Toth Encl. Cc: Building Dept. S 131.4~' FR. DEER MAP OF PART OF LAND OF E \iS T,'NG ZONTNG DIS %RIC TS - R40 & ,780 LEWIS L. EDSON A T CUTCHOGUE TO TAL AREA = 25.5023 Acres ~ARKING- RET41L 9ALES .= 2998 sq. lt. 2998/200 = 15 spaces STORAGE 4356 $¢.11. 43~6/1000 = ~ saces OFFICE= 470 sq./f. 470/100 - 5 speces D~IELL:NG 2 soaces 27 speces TOWN O'F SOUTHOLD SUFFOI'K COUNTY, N Y. 1000-102-02-P/016 SCALE.'1"-60' MARCH 20, 2007 · OCT. 19. 2009 (REVISIONS) ........ NOV.I,~, 2009 (revisions] ,-"'-i ~:~ ' -, NOV. 18~ ~009 Irevisions) -; ': "' ...... '" P. O. BOX 909 I~$0 TRAVELER ST~E~ '- SOUTHOLD~ N.Y. 11971 97-280 10 -2- /2,g / / / COUNTY OF SUFFOLK (~) I ~ I J,., I., Tm,. SOUTHoL0 [~ ~ Red Pr t I E ope' y ox Service Agency Y r .~. L\ - I `•SU'FF0tKTIMES:C0'M I DECEMBER16; 2010 1 17 bii .`,SantW Santa 9 :v S is e" sues -Christmasrttree-sh,op gains-town approval, but owner challenges new restrictions BY TIM KELLY I EDITORx, .m '",,y�;t :, ,. , X3. '2.+a _. - .`§- r > - `�a s, '',"•e-+ Atown Zoning Board`ofAppealsruling made earlier this' ear may have cleared u Y Y P a legal snow squall that clouded the ros ects for Santa' P P s Christmas Tree Farm in Cutchogue.But the forecast calls for more blustery weather in the form of more litigation in the new year. The town and the farm have been at odds for years over the status of the retail store on the Main Road side of the 40-acre property.After a state Supreme Court justice confirmed the town's charge that the store illegally occupied an 8,000-square-foot steel ,�=:�_ _-"_ °> •� -# ���" ���� `,,,^ `"Y":fir] ^', ,,_�_�ra�� �„V%t->� f., "�'"'M:i• fa.tr �' y .r .'t„-,'i*"'d''',„,{a.- 4,..f,: r�.�y' .y, '5t :vim-.-.-r. '-r_r buildingapproved fora cultural use,Santas own- er,Lew Edson,petitioned the ZBA for farm stand” status earlier this year.The board granted it But that wasnt the end of the story. In keeping with the towns 3,000-square-foot farm =,_ _ _ P g q - = :.: haw, t gp �.s, ='2--qe5�°,^`Arcs "", `"�};� `�- stand size limit Mr.Edson walled off the rear of the =- "_ 4 uildin d has been doing business this holida - M' -s season from the smaller shop at the front.But he's not , _ v, - ,x'� complying with two conditions the ZBA imposed. BARBARAELLEN KOCH PHOTO He is,in fact,back in court,claiming the ZBA over- Santa's Christmas Tree farm owner Lew Edson has received town approval for a scaled-down gift shop,but he's suing over stepped its authority by declaring the business to be two conditions he believes are overly restrictive. seasonal only and also by limiting what he can store in the back to products produced on the property,such as farm stand operating under a seasonal limitation.- Mr.Finnegan said the ag products-only restric- wreaths—not the lights and omaments he also sells. "Many,if not most,farm stands are multi-season- tion simply reflects the terms of the certificate of Mr. Edson's attorney, Eric Bressler of Mattituck, al because that is required to survive economically," occupancy covering the 8,000-square-foot building, said the only issue before the ZBA for a ruling this said Mr.Bressler."If he wanted to grow strawberries, which was approved essentially as a barn. year was whether to allow part of the building to this might preclude him from selling them.through Other local farm stands operate under the same be used as a farm stand,not its seasonality or what his building.I dont think that's consistent with the restriction, but most are not nearly as large, Mr. products could be stored on site.. " policy to promote-agriculture." Finnegan added. "Three thousand square feet is "Neither of those two conditions are contained in' Town attorney Martin Finnegan said the seasonal pretty big and generous,"the town attorney said. the code," he said.".Since it's not contained in the limit reflects what Mr Edson requested when he tes- He described the ZBA ruling as"rationally based ordinance,they shouldn't be doing it,"he said of the tified before the ZBA. "He got what he was asking upon the facts.I can't see where a court would not ZBNs imposition of the conditions. for,"said Mr.Finnegan."To suggest that the findings agree with that." 1 The attorney said he is aware of no other local were arbitrary is unfounded." t&ellyC�timesreview com ,, a"ate >x�>.. r s _� � .a. 1 K ,b:'�!>.�,r 5' �..3 '� .� tins• — x_ �,� ;.�'`€ l %� F 1. .w ,n� '�"_ _ -'d.�xa•' °2nd=:. ,� z' >„� `Rx 4.'v'Y.r S''�,:__• - _ ' .!j RECEIVED SEP _ 3 2010 Re: ZBA File 6353 BOARD UF APPALS Dated August 19, 2010 I respectfully request that the Board revisit that part of the determination on Page 4 at the bottom.of the page. This clause refers to storage of incidental items in the area of the building that is not part of the farm stand retail sales area. Section 72-4 Retail Sales Area specifically states that storage area is excluded from the retail sales area. I have spoken to the Chairman of the Ag Advisory Committee and he agrees with my interpretation of the Code, i.e. storage area is defined as storage of any and all items related to the farm stand business, whether they are items from the farm or incidental items that are sold at the farm stand, Thank you for your consideration. Respectfully submitted. Lewis Edson 9/2/2010 Page 4—June 13,2010 ZBA File#63S3—Lewis Edson CPM:1000402-2-16 accessory items.For the puiposes of this chapter,a farm stand shall be limited to structures operated by an applicant on a parcel with either: not less than seven acres of land used as a single operation in the Preceding two years for the production or sale of crops, livestock or livestock products of an average gross sales value of$10,000 or more or land of seven acres or less used as a single operation in the preceding two years for the production or sale of crops, livestock or livestock products of an average gross sales value of$50,000 or more. RETAIL SALES AREA Portions of a farm stand operation,usually covered,which are dedicated to the direct marketing and sale of farm stand products,including public rest rooms,but excluding storage areas,temporary display areas and other areas not accessible to the general public. Regarding these definitions,the Board findi that the applicant is a recognized agricultural production!operation which exceeds 7 acres in size and yields more than$10,000 of revenue per annum over two consecutive years. The Applicant testified that his farm had approximately 22,000 trees under various stages of growth on the farm and that the annual sales of Christmas trees in any season is approximately 1500 to 2000 trees. In a letter submitted by the applicant on October 20,2009,the applicant stated that he had approximately$110,000 in tree sales for the 2009 holiday season. Additionally, given the definition of"Retail Sales Area"and representations made by Applicant,the entire farm stand including the retail sales area and the storage of all incidental accessory items that are sold at the farm stand must be contained within the 2,998 sq.ft.section of the building.` Additionally, §72-8 sets forth the maximum size of a farm stand structure (s) as 3,000 sq. ft. The;applicant currently has a building with a total of approximately 7824 sq.ft of floor area. The applicant proposes to setoff a portion (2,998 square foot area) of this building by installing a wall with a small door to define farm stand operation. With respect to the setting off of a portion of the building, the Board has testimony From the Agricultural Advisory Committee stating that doing so in this fashion is in keeping with original!it}tent of Chapter 72. Furthermore,the applicant has agreed to maintain 20-25% of the space within the farm stand as space utilized for the making and decoration of,as well as sale of wreaths created from trees grown on site.As such,the proposed farm stand complies with maximum size of a farm stand structure. Finally,the applicant also testified with respect to the intended compliance with§72-7 of the code,entitled farm stand offerings.In the applicant's September 9,2009 letter to Board,the applicant stated the following: 1. 60%of the gross revenue generated is anticipated to be from trees grown on the farm; 2. 20%of the gross revenue generated is anticipated to be from wreaths;and 3. 20%of the gross revenue generated is anticipated to be from ornaments and-similar non-agr�ulturai incidental products. So long as the proposed farm stand operates within the above referenced-parameters-it will meet the definition of a farm stand as set forth in Chapter 72 and is entitled to the issuance of a farm stand permit from the building department. RESOLUTION OF TILE BOARD: In considering all of the above, motion was offered by Member Weisman (Chairperson),seconded by Member Goehringer,and duly carried,finding that the proposed 2,998 sq.i portion of the agricultural structure shown on the survey by John Metzger,Peconic Surveyors,PC dated November 12,2009 'while not at issue in this determination,it is noted that the Agricultural Advisory Commission opined that the code sets a maximum only for the`detail sales area"of a farm stand at 3,000 sq,R and indicated that the remaining portion of the building in this instance can be used to store incidental accessory items that are not a product of the farm. This board disagrees with this interpretation. If the Town Board intended t6 set a maximum size limitation of the retail sales area at 3,000 sq.ft.,it would have specified such within§72-8. Instead,§72-8 refers to the maximum size of the farm stand structure(s),which includes the retail sales area and storage areas. In this instance,the remaining portion of the building that is not part of the farm stand can only be used for storage of equipment and other on-farm produced agricultural products,but not for the storage of incidental accessory items that are not produced on the fano_ SMITH,FINKELSTEIN,LUNDBERG,ISLER AND YAKABOSKI,LLP ATTORNEYS AND COUNSELORS AT LAW 456 GRIFFING AVENUE,CORNER OF LINCOLN STREET RIVERHEAD,N.Y.11901-0203 (601)727-4100 FRANK A.ISLER HOWARD M.FINICELSTEIN SUSAN HOGERS GB-UN FAX(681)727-4130 RETIRED GAIR G.BETTS , JEATgXJAA ir.GUNDERSON PTF.RI F G.LUNDBERG PHIL SIEGEL RETIRED FRANCIS J.Y A K A BOSHI JONATHAN M.MARMO Direct E-Mail:flsler@sfliy.com _ OF COUNSEL December 21, 2010 REGMAIM C.SMITH 1926-1983 RECEIVE® Leslie Kanes Weisman DEC 2 2 2010 Chairman of the Zoning Board of Appeals gpq�® ®F APPEALS Main Road P.O. Box 1179 Southold,New York 11971 Re: Lewis Edson v. Southold Town Zoning Board ofAppeals Index No-10-34358 Dear Madam Chair: Enclosed please find our answer, affirmation in opposition and memorandum of law which we have served and filed in the Article 78 proceeding brought by Mr. Edson challenging' the conditions placed on his farm stand permit. The proceeding is scheduled to be submitted to the Court on December 30, 2010. We will keep you advised. Fez truly o s �R- y y y Frank A. Isler FAI/cd Enclosure cc: Martin Finnegan, Esq.-w/encl. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ------------------------------------------------------------------------X LEWIS EDSON, Index No. Petitioner, 10-34358 -against- AFFIRMATION IN OPPOSITION SOUTHOLD TOWN ZONING BOARD OF APPEALS, Respondent. -------------------------------------------------------------------------X Frank A. Isler, Esq., pursuant to CPLR 2106, affirms as follows: 1. I am a member of the firm of Smith, Finkelstein, Lundberg, Isler& Yakaboski, LLP., special counsel to the respondent Southold Town Zoning Board of Appeals and am fully familiar with the facts and circumstances herein. 2. I make this affirmation in opposition to the Article 78 petition brought to challenge the Zoning Board of Appeals' conditional grant of a Farm Stand permit to the petitioner. For the reasons set forth in the accompanying Memorandum of Law,the petition should be dismissed and the Zoning Board of Appeals' decision should be ' sustained. 3. For the convenience of the Court, the relevant sections of the Town Code are annexed hereto as exhibits: Exhibit 1: Section 72-4 Definitions Exhibit 2: Section 72-5 Farm Stand Permit Required Exhibit 3: Section 72-6 Farm Stand Permits Issued Without Requirement of Site Plan Approval Exhibit 4: Section 72-7 Farm Stand Offerings Exhibit 5: Section 72-8 Maximum Size of Farm Stand I f h 4. Also annexed hereto for the Court's convenience is the Decision of Justice Paul J. Baisley, Jr., in Town of Southold v. the Estate of Grace R. Edson and Lewis Edson(Suffolk County Supreme Court, Index No. 11814-2007) (Exhibit 6). 5. Also annexed is the Decision and Order of the Appellate Division, Second Department, dated November 9, 2010, affirming Justice Baisley's Decision (Exhibit 7). WHEREFORE, the respondent respectfully requests that it be granted judgment Dismissing the petition herein, sustaining its determination, and granting it such other and further relief as this Court deems just and proper. Dated: Riverhead,New York December 20, 2010 Frank A. Isler, Esq. Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP. Attorneys for the Respondent 456 Griffing Avenue Riverhead New York 11901 2 Exhibit 1 100%Recycled 30%PCW Town of Southold,NY Is 11 ' y Q Page 1 of 2 § 72-4 Definitions. As used in this chapter, the following terms shall have the meanings indicated AGRICULTURAL PRODUCTION The production for sale of crops, livestock or livestock products, which shall include but not be limited to A_ Field crops, including corn, wheat, oats, rye, barley, hay, potatoes and dry beans, B Fruits, including apples, peaches, grapes, cherries, tomatoes and berries, C Vegetables, including snap beans, cabbage, carrots, beets and onions, D Horticultural specialties, including nursery stock, ornamental shrubs, ornamental trees and flowers, E Livestock and livestock products, including cattle, sheep, hogs, goats, horses, poultry, ratites, such as ostriches, emus, rheas and kiwis, farmed deer, farmed buffalo, fur-bearing'animals, milk, eggs and furs, F. Maple sap, G r Christmas trees derived from a managed Christmas tree operation whether dug for transplanting or cut from the stump, H Aquaculture products, including fish, fish products, water plants and shellfish, I Woody biomass, which means short-rotation woody crops raised for bioenergy, and shall include farm woodland AGRICULTURAL USES Activities devoted primarily to production, processing, marketing and sale of agricultural and aquacultural commodities, including any and all agricultural, horticultural, vineyard products, corn for grain, oats, soybeans, barley, wheat, poultry or poultry products, bees, maple syrup, Christmas trees, livestock, including swine, and honey, sold in the state either in their natural state or as processed by the producer thereof; but does not include milk, timber or timber products, other than Christmas trees, all hay, rye and legumes FARM STAND Any primary structure or portion of a structure greater than 80 square feet in area used for the purpose of retail sale of locally produced agricultural products grown by the owner'or lessor of the structure, as well as the accessory sale of processed agricultural products, agriculture-related products and incidental accessory items For the purposes of this chapter, a farm stand shall be limited to structures operated by an applicant on a parcel with either not less than seven acres of land used as a single operation in the preceding two years for the production or sale of crops, livestock or livestock products of an average gross sales value of$10,000 or more or land of seven acres or less used as a single operation in the, preceding two years for the production or sale of crops, livestock or livestock products of an average gross sales value of$50,000 or more http://www.ecode360.com/?custId=SO0452 12/13/2010 Town of Southold,NY e Page 2 of 2 PROCESSED AGRICULTURAL PRODUCT Agricultural product which has been converted from its original state into a distinct product by techniques such as cooking, distillation, fermentation, crushing and straining Examples of processed agricultural product include, without limitation,dams,bellies, cheeses, potato chips, wine and other alcoholic beverages Simple washing, cleaning, arrangement or packaging of agricultural product shall not cause the product to be considered "processed" under this definition RETAIL SALES AREA Portions of a farm stand operation, usually covered, which are dedicated to the direct marketing and sale of farm stand products, including public rest rooms, but excluding storage areas, temporary display areas and other areas not accessible to the general public http://www.ecode360.com/?custld=SO0452- , 12/13/2010 Exhibit 2 700%Recycled 30°/PCW y � r Town of Southold,NY Page 1 of 1 § 72-5 Farm stand permit required. A_ No person shall erect, place or operate a farm stand without the Building Department's issuance of a farm stand permit for the farm stand operation A farm stand permit shall be subject to revocation if the farm stand fails to operate in compliance with the requirements set forth herein B The Building Department shall only issue a farm stand permit to a party engaged in bona fide agricultural production within the Town of Southold For the purposes of this article, "bona fide agricultural production" shall be limited to the operation, within the Town of Southold, of either not less than seven acres of land used as a single operation in the preceding two years for the production or sale of crops, livestock or livestock products of an average gross sales value of$10,000 or more or land of seven acres or less used as a single operation in the preceding two years for the production or sale of crops, livestock or livestock products of an average gross sales value of$50,000 or more C A farm stand existing as of the date of adoption of this article which does not meet the requirements of this article shall be deemed to be a nonconforming building under the Zoning regulations of this Code, Chapter 280 Notwithstanding the contrary provisions of this article, a farm stand legally existing in the Town as of January 1, 2008, shall be permitted to expand or enlarge the total area of the farm stand structure(s) by up to 50%, cumulatively, of the total area of the farm stand structure(s) legally existing as of January 1, 2008, subject to compliance with the parking requirements of this article 1 http://www.ecode360.com/?custld=SO04�52 12/13/2010 Exhibit 3 100%Recycled 30%PCW Town of Southold,NY r Page 1 of 1 § 72-6 Farm stand permits issued without requirement of site plan approval. A. A farm stand permit shall be issued to applicants meeting the following requirements, and such farm stands shall not require site plan approval from the Planning Board, notwithstanding the provisions of Chapter 280, Article XXIV L1 The farm stand is located on lands used in bona fide agricultural production by the owner or lessee of the property. L1 The total floor area, as defined in Chapter 280, of the farm stand structure(s) does not exceed 3,000 square feet. The permanent farm stand structure is set back at least 50 feet from the road. The farm stand parcel provides at least four off-street parking spaces and also provides adequate space that may be used for unimproved on-site parking equivalent to one parking space for each 200 square feet of retail sales area. B. (Reserved) C Retail sales operations that do not meet the definition of a "farm stand" pursuant to this chapter, as well as farm stands that do not meet the requirements of§ 72-6A, shall be subject to the full site plan requirements of Chapter 280, Article XXIV, as well as all other zoning and use restrictions of Chapter 280 or the Town Code. L http://www.ecode360.com/?custId=SO0452 12/13/2010 Exhibit 4 100%Recycled 30%PCW Town of Southold,NY Page 1 of I § 72-7 Farm stand offerings. All farm stands shall conform to the following product offering restrictions A_ At least 60% of the gross dollar value of all items offered for sale at farm stands shall consist of agricultural products grown by the farm stand operator within the Town of Southold B No more than 40% of the gross dollar value of all items offered for sale at a farm stand may consist of the following items only- Agricultural products grown by a person or entity, other than the farm stand operator, engaged in bona fide agricultural production within the Town of Southold, and not including agricultural products not grown within the Town of Southold, Items manufactured or processed from the agricultural products grown by the farm stand operator or manufactured or processed from products grown by a person or entity, other than the farm stand operator, engaged in bona fide agricultural production within the Town of Southold, Clothing,,apparel and other similar items, but limited to such items that promote the specific farm stand site or operator, and souvenir items of the farm stand, and Other accessory items, but limited to items complementary to the specific farm stand agricultural operation, such as decorative housewares, planters and like items l http://www.ecode360.com/?custld=SO0452 12/13/2010 Exhibit 5 100%Recycled 301 PCW Town of Southold,NY Page 1 of 1 § 72-8 Maximum size of farm stand. In all cases, farm stand structure(s) shall not exceed 3,000 square feet in total floor area, as defined in Chapter 280 t 1-ittp://www.ecode360.com/?custld=SO0452 12/13/2010 30%PCW 91!q!4X3 �t� r s om Ionu i ml,r SUPREME COURT-STATE OF NEW YORK I.A.S.PART XXXVI SUFFOLK COUNTY PRESENT: INDEX NO.: 11814/2007 GQP HON. PAUL J.BAISLEY,JR., J.S.C. MOTION DATE:2/19/09 ---------------------------------------------------------------X MOTION NO:001 MG t O W N OF SOUTHOLD, Plaintiff, PLAINTIFF'S ATTORNEY: SMITH,FINKELSTEIN,LUNDBERG, -against- ISLER&YAKABOSKI 456 Griffing Avenue,P.O.Box 389 F[i F,ESTATE OF GRACE R.EDSON and LEWIS Riverhead,New York 11901 EDSON a/k/a LEFFERTS P.EDSON, DEFENDANT'S ATTORNEY: Defendants. WICKHAM,BRESSLER,GORDON& -- -- ---------------------------------------------------------X GEASA,P.C. 13015 Main Road,P.O.Box 1424 Mattituck,New York 11952 1 Ipon the following papers numbered 1 to 40 read on this motion for summary ludament•Notice of Motion/Order to thou Cau,c and supporting papers 1-14 _;Answering Affidavits and ,up iorung papers 15-19:20-28;29-32 ;Replying Affidavits and supporting papers 33-40';ether ;(and aft—hearing it is, ORDERED that the motion(motion sequence no.001)of plaintiff Town of Southold for .1n order pursuant to CPLR R.3212 granting summary judgment to plaintiff and permanently enjoining and restraining defendants and their agents from using and occupying the accessory agricultural building on their property located at Main Road,Cutchogue,New York for retail use Unless and until such time as the violations of the Southold Code and New York State Code have been remedied and defendants have obtained a certificate of occupancy for such use from the Town of Southold is granted. The record reflects that defendants are the owners of an approximately 23-acre parcel of land located in the Town of Southold(the"Town"). Since approximately 1986,the property has been operated as a tree nursery known as"Santa's Christmas Tree Farm,"and the majority of its acreage has been planted with evergreens in various stages of development,principally for sale as (T ristmas trees during the Christmas season. The property is presently zoned"R-80 Residential Low-Density"(Town Code of Town of Southold§280-5)and is improved with a 2,000-square- fool single-family residence and an approximately 8,000-square-foot"accessory nursery building.. The record further reflects that the original accessory nursery building,comprising approximately 2,520 square feet,was constructed pursuant to a building permit issued on June 27, 1986,and for which a certificate of occupancy was issued on January 13, 1987. Thereafter,on Jtitle I, 1990,a building permit was Issued for the construction of a 5,460-square-foot addition to the existing accessory nursery building,and a certificate of occupancy for the addition was issued on August I, 1990. I he Court declines to consider the unauthorized"sur-reply affidavit"of defendant Lewis P Edson(as well as the ,i,iventeuial affirmation"of plaintiffs counsel submitted In response). fi t ini n of Joathold v.The Estate of Grace R.Edson et at Index No 1181412007 In its complaint,dated April 11,2007,plaintiff alleges that since around 1990,defendants have operated a retail store,known as"Santa's Christmas Tree Farm and Gift Shop,"in the .iccessory building,where they engage in the year-round retail sale of holiday ornaments, decorations, figurines,gifts and related products not grown on the premises. Plaintiff alleges that the operation of a retail store is not a permitted use in the R-80 zoning district pursuant to§280- 13(A)of the Town Code of the Town of Southold(the"Code"). Plaintiff further alleges that defendants do not have a certificate of occupancy for the retail use of the accessory building,as required by Code§144-15,and that changes to the electrical system have not had the required inspections Plaintiff further alleges that,without obtaining the necessary approvals,and in violation of the Code,defendants have expanded their accessory retail business to include almost exclusively products not manufactured or grown on the premises,and that defendants'continued use of the premises poses a risk to the health,safety and welfare of the patrons,employees and residential neighbors of Santa's Christmas Tree Farm and Gift Shop. Plaintiff seeks a permanent inunction enjoining the alleged Code violations by defendants,and now moves for summary ludgment on its claims. In support of the motion,plaintiff has submitted the affidavit of the Town's Code Enforcement Director Edward Forrester,swom to September 8,2008;the affirmation of its attorney,Phil Siegel,Esq.,dated September 8,2008;a copy of the pleadings;a copy of the building permit/certificates of occupancy issued in connection with the accessory nursery building;copies of the Code provisions alleged to be applicable;and portions of defendants' prior unsuccessful application for a change of zone from R-80 to B Business. In their answer,dated April 11,2007,defendants deny the substantive allegations of plaintiff's complaint,and assert the affirmative defenses of estoppel,waiver,selective enforcement,and laches,as well as the existence of a prior action for the same relief under Index No.8034/2004,as bars to plaintiff's claims. Defendants vigorously oppose plaintiff s motion, and have submitted in opposition the affidavit of defendant Lewis Edson,sworn to December 3, 2008;the affirmation of defendants' attorney,Eric J.Bressler,Esq.,dated December 12,2008; and the affidavit of Richard F.Lark,sworn to November 24,2008;together with various exhibits including copies of documents allegedly pertaining to the prior action under Index No. 8034/20042,copies of earlier Code provisions alleged to be applicable to defendants'operations at the subject property;a decision of the local criminal court alleged to be relevant;and copies of the certificates of occupancy for the accessory building on the premises. The affidavit of Edward Forrester,the Town's Director of Code Enforcement,reflects that defendants are operating a large retail establishment in the accessory building on their agricultural property which is located in the R-80 residential zoning district. Mr.Forrester's affidavit further reflects that the vast majority of products sold by defendants in their retail store arc not grown on the premises,including manufactured holiday ornaments,decorations,lights, figurines,gifts,and related products. Mr.Forrester avers that with the exception of Christmas trees,garlands and wreaths during the holiday season,the defendants do not sell agricultural products in the accessory nursery building. Although it appears that defendants intended to attach copies of the pleadings in the prior action,the summons and complaint annexed to the Edson affidavit as part of"Exhibit A"are those interposed in the instant action -2- f 0 t roup„o!SSbathold v The Estate of Grace R Edson et at Index No /1814/1007 Code§280-13(A)enumerates the permitted uses for buildings and premises in the A-C, R-80,R-120, R-200 and R-400 zoning districts. As relevant to the instant action, §280-13(A) permits "(2) The following agricultural operations and accessory uses thereto...: (a) The raising of field and garden crops,vineyard and orchard farming,the maintenance of nurseries and the seasonal sale of products grown on the premises"[emphasis added]. (c) Barns,storage buildings,greenhouses(including plastic covered)and other related structures,provided that such buildings shall conform to the yard requirements for principal buildings." Pursuant to Code§280-8(E),"[a]ny use not permitted by this chapter shall be deemed to be prohibited." Thus,except to the extent of permitting the accessory seasonal sale of products grown on the premises of an agricultural operation,the maintenance of a retail store is not a permitted principal or accessory use within the R-80 zoning district. It is undisputed that the certificates of occupancy for the accessory building,described therein as an"accessory nursery building"and"addition to an existing agricultural building as applied for,"do not authorize its use as a retail store. The affidavit of Mr.Forrester further avers that pursuant to Code§280-127, the expansion of the agricultural building for the operation of defendants' retail store required site plan approval by the Town of Southold Planning Board(the ordinance provides that"[a]ny change in use or intensity of use which will affect the characteristics of the site in terms of piaiking. loading,access,drainage,open space or utilities will require site plan approval"). The submissions establish that site plan approval was neither sought nor obtained by defendants. In .addition,the record reflects that defendants'prior application to change the zoning of the portion of their property occupied by the accessory building from residential to business was denied. Plaintiff s submissions establish,prima facie,that defendants'operation of a large retail establishment in an building authorized to be used only for accessory agricultural use,and the sale therein of products the majority of which are not grown on the premises,is a violation of the Town's zoning ordinances. It is well established that"[a]town is entitled to a permanent injunction to enforce its building and zoning laws upon demonstrating that the party sought to be enjoined is acting in violation of the applicable provisions of local law"(Town of Brookhaven v Muscia,38 AD3d 758[2d Dept 2007]). Plaintiff's submissions thus establish its prima facie entitlement to a permanent injunction enjoining defendants' operation of their retail store in the decessory building on the premises(id.;Town Law§§135(]),268(2)). In opposition to the motion,defendants argue that their retail operation is merely incidental and accessory to the principal agricultural use of the property as a Christmas tree farm, and that the Town building department issued the certificate of occupancy for the accessory building with full knowledge of the nature of the use Defendants contend that the Town—many of whose elected officials regularly patronized the business—recognized its use as legitimate and even took steps to aid in its development. Such assertions,however,even if true,are irrelevant to -3- X ,nor of foothold v The Estate of Grace It Edson et al Index No 11814/1007 defendants'arguments that the Town is estopped from now enforcing its zoning laws against it It is well established that"estoppel may not be invoked against a municipality to prevent it from discharging its statutory duties"(Parkview Associates v New York,71 NY2d 274[19881) Moreover,"a municipality may not be estopped from enforcing its zoning laws either by the issuance of a building permit or by laches"(City of Yonkers v Rentways,Inc.,304 NY 499,505) Defendants'further assertions that plaintiff is selectively prosecuting defendants are :insupportcd by any admissible evidence,and there is no showing that additional discovery will weld facts that support defendants' arguments(Town of Brookhaven v Mascia,supra,38 AD3d Defendants further argue that the sale of Christmas-related items was permitted under the oiling ordinance in effect at the time they began their retail operations. The affidavit of Mr. f_dson asserts that the property was then located in an"A"zoning district,and that there was no i estrictiun regarding the sale of items not grown on the premises. The copy of the"1971 zoning ,)rdiiiance Section 100-30"annexed to Mr.Edson's affidavit as Exhibit G fails,however,to support defendants' argument. Code§100-30(A),applicable to the"A Residential and Agricultural District,"permitted"the following commercial agricultural operations and accessory uses thereto. (a)The raising of field and garden crops,vineyard and orchard farming,the maintenance of nurseries and the seasonal sale of products thereof in buildings,subject to the billowing special requirements:[1]All one-story buildings for display and retail sales of agi lcultural and nursery products grown primarily on the premises shall not exceed one thousand (1,000)square feet in floor area...."[emphasis added].Contrary to defendants' argument,the statute did not authorize the sale of items not grown on the premises. Moreover,the retail sale of products not grown on the premises is not a generally recognized accessory use to agricultural property and will be prohibited even in the absence of an express statutory provision such as that at issue here(Ecker v.Dayton,234 AD2d 584[2d Dept 1996]). Similarly unsupported is defendants'assertion that site-plan approval was not required. ['he record reflect that Code§280-127 was adopted in 1989 and thus,although not applicable when defendants assertedly commenced their retail operations,was applicable in 1990 when defendants expanded the accessory building. The fact that the building inspector at the time may riot have required site plan approval for defendants'planned expansion of the building is not dispositive,as the building permit application building did not give notice of the scope and purpose of the planned expansion,and defendants'own submissions establish the limited scope of defendant's retail operations prior to the expansion of the accessory building. rhe affidavit of Richard F.Lark,who describes himself as a former Special Assistant District Attorney of Suffolk County for the purpose of prosecuting violations of the Southold Town Codes and advising the Southold Town Building Department as to zoning and building code matters,reflects Mr.Lark's personal observations of defendants'retail operations in late November or early December of 1986'when he was dispatched to the property to investigate possible zoning code violations as a result of"numerous complaints"regarding traffic problems ` in his affidavit Mr Lark does not expressly state the year of his visit,but it is apparent from the other statements iheran that the visit must have occurred at the end of 1986. Mr Lark states that after his visit,the building inspector visited the property and thereafter issued a certificate of oct,upancy for the accessory nursery budding Since the certificate of occupancy wits issued in January 1987,Mr.Lark's visit must have occurred in 1986 -4- O I I! ti � a ;num nl Sotahold v The Eetate oJGrace R Edson ei at index No 1181412007 at the entrance to the farm and allegations regarding the sale of Christmas ornaments,lights and decorations that were not grown or made on the premises. The affidavit reflects that as Mr.Lark entered the(then much smaller)agricultural building he observed"balled Christmas trees,some t,f which had decorations on them,along with evergreen wreaths and roping on display all of Which were for sale....There were several rows of tables upon which various items such[as] C'ht istmas tree omaments,colored lights and other kinds of Christmas decorations were displayed for sale," Mr.Lark states that Mr.Edson told him at the time that the sale of those items which ,ibviously were not grown on the premises was on a seasonal basis and were used to promote the bale of the Christmas trees,and that the rest of the year the building was used for the storage of qupplies,equipment,fertilizer and tractors that were utilized in the nursery. Mr.Lark concluded that the sale of these manufactured Christmas-type items was"accessory and incidental to the prime use of the property which was the planting,cultivation and growing of Christmas trees for ;ale,"and so reported to the then-building inspector. Mr.Lark states that thereafter the building inspector visited the property,concluded that the owner was properly operating within the zoning code,and subsequently issued a certificate of occupancy for the accessory nursery building. The affidavit of Mr.Lark thus establishes that prior to the 1990 expansion,defendants' i etail operations—although concededly including the sale of a limited number of manufactured items not"grown on the premises"—were relatively modest,and that the principal use of the building was for the seasonal sale and display of Christmas trees,evergreen wreaths,and roping grown oil the premises. It is undisputed that the present retail operation is vastly expanded,and that the sale of items not grown on the premises now predominates. Indeed,Mr.Lark's descnption of"several rows of tables"displaying Christmas-related items must be contrasted with defendants' own description of the current use of the"accessory nursery building,"as reflected by defendants'webpage,a printout of which is annexed to plaintiff's reply affirmation as Exhibit R. That document begins,"When you walk into our store you will say`WOW,"'an assessment with which,upon perusing the contents,the Court wholeheartedly agrees Defendants'webpage boasts that defendants'"retail space measures almost 10,000 square feet making us one of the largest Christmas stores in the northeast"and reports that defendant is"a Dept.56 retailer of Snow Village, Dickens,The City,New England,the North Pole and Snow Babies. Other lines that we carry include,Yankee Candle,Fontanini,Old World Christmas,Lenox just to name a few. We cai ry all ti ec trimmings,gift wrap,cards and many specialty items.We have a large selection of personalized items and have a local artist on premise to personalize any omament you choose. Also we make our own fresh wreaths decorated on premises. If you visit after Thanksgiving we have Santa here on the weekends." There is no logical process whereby the above-enumerated list can be considered to constitute usual and customary accessories to an agricultural operation. It is apparent from the recot d hercui that the building permit and certificate of occupancy issued in connection with the construction of the addition to defendant's accessory nursery building in 1990 did not and could not authorize the operation of a 10,000-square-foot retail store for the sale of items the vast majority of which are neither agricultural or nursery-related and which were not grown or produced on the premises(see, Ecker v Dayton,supra, 234 AD2d at 585 [2d Dept 1996]). The record is clear that the accessory use of the building has expanded well beyond that contemplated by the zoning ordinances, and the Town is properly acting to restrict such impermissible use and protect the character of the residential neighborhood in which defendants' Christmas tree farm is located -5- .h � hm n o/Jouthoh/v The Estate of Grace R Edson et al Index No 1181412007 Defendants'submissions in opposition to plaintiff's motion fail to rebut plaintiff's prima /acre showing of entitlement to summary judgment or to demonstrate the existence of material issues of fact. In light of the foregoing,plaintiff's motion for summaryjudgment is granted,and defendants are permanently enjoined from operating a retail store on their property for the sale of items not grown on the premises until such time as the violations of the Southold Town Code have been remedied and defendants have obtained a certificate of occupancy for such retail use. Settle judgment. Dared: August 6,2009 _ — J.S.C. X FINAL DISPOSITION ._NON-FINAL DISPOSITION -6- ti , Town of Southold v Estate of Edson(2010 NY Slip Op 0809 1) „ Pagel of 3 Town of Southold v Estate of Grace R. Edson 2010 NY Slip Op 08091 Decided on November 9, 2010 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 ill the Official Reports. Decided on November 9, 2010 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT MARK C. DILLON, J.P. DANIEL D. ANGIOLILLO L. PRISCILLA HALL SHERI S. ROMAN, JJ- 2009-11105 J.2009-11105 (Index No. 11814/07) [h l)Town of Southold, respondent, V Estate of Grace R. Edson, et al., appellants. Wickham, Bressler, Gordon & Geasa, P.C., Mattituck, N.Y. (Eric 'J. Bressler of counsel), for appellants. Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, Riverhead, N.Y. (Phil Siegel of counsel), for respondent. DECISION & ORDER In an action, inter alia, for injunctive relief, the defendants appeal from a judgment of http://www.nycourts.gov/reporter/3dseries/2010/2010_08091.htm 12/10/2010 Town of Southold v Estate of Edson(2010 NY Slip Op 08091) , , Page 2 of 3 A ro w the Supreme Court, Suffolk County (Baisley, Jr., J.), entered November 24, 2009, which, upon an order of the same court dated August 6, 2009, granting the plaintiffs motion for summary judgment, in effect, conditionally enjoined them from operating a retail store on their property for the sale of items not grown on the premises in violation of the Southold Town Code, unless the violations were remedied and the defendants obtained a certificate of occupancy for such retail use. ORDERED that the judgment is affirmed, with costs. Contrary to the defendants' contention, the Supreme Court properly granted the plaintiffs motion for summary judgment to enjoin the sale of products not grown on the defendants' premises until proper authorization was obtained from the plaintiff. The plaintiff made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the retail sales conducted by the defendants at the subject premises were in violation of Southold Town Code § 280-13(A)(2)(a), and were not authorized by the certificates of occupancy issued by the plaintiff in 1987 and 1990. In opposition, the defendants failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320), and failed to request additional, specific discovery which was calculated to yield facts warranting the denial of the plaintiff s motion (see CPLR 3212[f]; Town of Brookhaven v Mascia, 38 AD3d 758, 759; Town of Hempstead v Incorporated Vil. of Atl. Beach, 278 AD2d 308, 310). The defendants' contention that the plaintiff s alleged acquiescence in the improper use of the premises over a period of several years should estop it from now enforcing the code provisions is unavailing. The plaintiff was entitled to injunctive relief to enforce its zoning laws (see Town of Brookhaven v Mascia, 38 AD3d at 759), and estoppel is generally unavailable to prevent a municipality from discharging its statutory duties (see Matter of Parkview Assoc. v City ['12]of New York, 71 NY2d 274, 282, cert denied 488 US 801; Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30, 33). Moreover, a building permit issued due to a misrepresentation by the applicant or an error by the municipal agency cannot confer rights in contravention of the zoning laws, and is subject to corrective action, even where the results may be harsh (see Matter of Parkview Assoc. v City of New York, 71 NY2d at 282; Town of Putnam Val. v Sacramone, 16 AD3d 669, 670; McGannon v Board of Trustees for Vil. of Pomona, 239 AD2d 392, 393; Baris Shoe Co. v Town of Oyster Bay, 234 AD2d 245; Welland Estates v Smith, 109 AD2d 193, 196, affd 67 NY2d 789). http://www.nycourts.gov/reporter/3dseries/2010/2010_08091.htm 12/10/2010 Town of Southold v Estate of Edson (2010 NY Slip Op 08091) Page 3 of 3 Under all of the circumstances presented, the Supreme Court did not err in permitting the filing of the judgment in this matter shortly after the 60-day period set forth in 22 NYCRR 202.48 had elapsed (see e.g. Neri's Land Improvement, LLC v J.J. Cassone Bakery, Inc., 65 AD3d 1312; Matter of Loeffler v New York State Dept. of Envtl. Conservation, 37 AD3d 470; Marzullo v General Motors Corp., 34 AD3d 540; Levine v Levine, 179 AD2d 625, 626). The defendants' remaining contentions are without merit. DILLON, J.P., ANGIOLILLO, HALL and ROMAN, JJ., concur. ENTER: Matthew G. Kiernan Clerk of the Court R'6turn to Decision+List;.= http://www.nycourts.gov/reporter/3dseries/2010/2010 08091.htm 12/10/2010 4 STATE OF NEW YORK,COUI`;;TYF ATTORNEY'S AFFIRMATION The undersigned,an attorney admitted to practice in the courts of New York State,shows:that deponent is the attorney(s)of record for in the within action;that deponent has read the foregoing and knows the contents thereof.,that the same is true to deponent's own knowledge,except as the matters therein stated to be alleged on information and belief,and that as to those matters deponent believes it to be true.Deponent further says that the reason this verification is made by deponent and not by The grounds of deponent's belief as to all matters not stated upon deponent's knowledge are as follows: The undersigned affirms that the foregoing statements are true,under the penalties of penury. Dated: ............................................................................................ STATE OF NEW YORK,COUNTY OF ss.: INDIVIDUAL VERIFICATION being duly sworn,deposes and says that deponent is the in the within action;that deponent has read the foregoing and knows the contents thereof;that the same is true to deponent's own knowledge,except as to the matters therein stated to be alleged on information and belief,and that as to those matters deponent believes it to be true. Sworn to before me,this day of 20 ..................................................... Notary Public STATE OF NEW YORK,COUNTY OF ss.: CORPORATE VERIFICATION being duly sworn,deposes and says that deponent is the of the corporation named in the within action;that deponent has read the foregoing and knows the contents thereof;and that the same is true to deponent's own knowledge,except as to the matters therein stated to be alleged upon information and belief,and that as to those matters deponent believes it to be true. This verification is made by deponent because is a corporation.Deponent is an officer thereof,to-wit,its The grounds of deponent's belief as to all matters not stated upon deponent's knowledge are as follows: Sworn to before me,this day of 20 ..................................................... Notary Public STATE OF NEW YORK,COUNTY OF ss.: AFFIDAVIT OF SERVICE BY MAIL being duly sworn,deposes and says,that deponent is not a party to the action,is over 18 years of age and resides at That on the day of 20 deponent served the within upon attorney(s)for in this action,at the address designated by said attorney(s)for that purpose by deposit- ing a true copy of same enclosed in a postpaid properly addressed wrapper,in—a post office—official depository under the exclusive care and custody of the United States post office department within the State of New York. Sworn to before me,this day of 20 ..................................................... Notary Public 1 ± Index No. , 10-34358- SUPREME 0-3435 SUPREME COURT OF THE STATE OF NEW YORK " COUNTY OF SUFFOLK LEWIS EDSON, Petitioner, -against- SOUTHOLD TOWN ZONING BOARD OF APPEALS Respondent. AFFIRMATION IN OPPOSITION SMITH, FINKELSTEIN, LUNDBERG, ISLER and YAKABOSKI, LLP Attorneys for Respondent Office Address 456 Grtffing Avenue RIVERHEAD,NEW YORK 11901.0203 Tel:631-727.4100 Fax•631-727-4130 To Signature(Rule 130-1.1-a) ............................................................. Attorney(s)for Print name beneath Service of a copy of the within is hereby admitted. Dated, Attorney(s)for Sir:—Please take notice NOTICE OF ENTRY That the within is a(certified)true copy of a duly entered in the office of a clerk of the within named court on 20 NOTICE OF SETTLEMENT that an order of which the within is a true copy will be presented for settlement to the HON. one of the judges of the within named Court, at on the day of 20 at M. Dated, Yours,etc. SMITH, FINKELSTEIN,LUNDBERG, ISLER and YAKABOSKI, LLP Attorneys for Office Address 456 Griffing Avenue RIVERHEAD,NEW YORK 11901.0203 Tel:631.727.4100 To Fax:631-727-4130 Attorney(s)for SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK - ---=--------------------------------------------------------------------X LEWIS EDSON, Index No. Petitioner, 10-34358 -against- VERIFIED ANSWER SOUTHOLD TOWN ZONING BOARD OF RECEIVED APPEALS, Respondent. DEC 2 2 2010 BOARD OF APPEALS Respondent, Southold Town Zoning Board of Appeals, by its attorneys, Smith, Finkelstein, Lundberg, Isler& Yakaboski, LLP., as and for its answer to the petition herein, alleges as follows: 1. Denies having knowledge or information sufficient to form a belief as to the allegations contained in paragraph 1 of the petition. _ 2. Admits the allegations contained in paragraph 2 of the petition. 3. Admits the allegations contained in paragraphs 3, 4, 5 and 6 of the petition' but respectfully refers the Court to the Return for its full text and legal import. 4. As to the allegations contained in paragraph 7 of the petition,,admits the Zoning Board determination recited therein and respectfully refers the Court to it for its full text and legal import, and except as so admitted, denies the allegations thereof. 5. Denies the allegations contained in paragraphs 8 and 11 of the petition. 6. As to the allegations contained in paragraph 9 of the petition, admits the Court proceedings recited therein and respectfully refers the Court to them for their full text and legal import, and except as so admitted, denies the allegations thereof. 1 7. With respect to the allegations contained in paragraph 10 of the petition, admits the application recited therein and respectfully refers the Court to it for its full text and legal import and further refers all questions of law to the Court. 8. As to the allegations contained in paragraph 12 of the petition, respectfully refers the Court to the Return and the Zoning Board determination herein for their full text and legal import, and except as so referred, denies the allegations thereof. 9. With respect to the un-numbered paragraphs under the heading "THE APPLICABLE LAW", admits the Town Code and State Law provisions recited therein and respectfully refers the Court to their full text and legal import and further respectfully refers all questions of law to the Court. 10. Denies all of the allegations contained in all of the paragraphs under the heading 'BASIS FOR RELIEF". 11. Denies the allegations contained in the un-numbered paragraph under the heading "CONCLUSION". WHEREFORE, respondent respectfully requests that judgment be awarded to it dismissing the petition herein and declaring that its determination dated August 19, 2010 be sustained and that it be granted such other and further relief as this Court deems just and proper herein. Dated: Riverhead, w York November, 2010 L Frank A. Isler, Esq. Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP. Attorneys for the Respondent 456 Griffing Avenue Riverhead New York 11901 2 VERIFICATION STATE OF NEW YORK) )ss.. COUNTY OF SUFFOLK) Frank A. Isler, being duly sworn, deposes and says: Deponent is special counsel for the respondent herein. Deponent has read the foregoing answer and knows the contents thereof, and the same is true to deponent's own knowledge except as to the matters therein stated to be alleged upon information and belief, and as to those matters deponent believes it to be true. This verification is made by deponent because the respondent is a municipal board and deponent is a person acquainted with the facts herein. The grounds of deponent's knowledge and belief of the matters alleged are as follows: deponent's examination of the record of proceedings involved herein an d ponent's investig n of the facts. Frank A. Isler Sworn to before me this/ZW day of November, 2010 Notary Public KATHERINE A}McERVM Notarryy Public,State of-New York No.O1 N105086460=Suffolk County Commission Expires October 14,,, 3 r � r STATE OF NEW YORK,COUNTY OF ATTORNEY'S AFFIRMATION The undersigned,an attorney admitted to practice in the courts of New York State,shows:that deponent is the attorney(s)of record for in the within action;that deponent has read the foregoing and knows the contents thereof;that the same is true to deponent's own knowledge,except as the matters therein stated to be alleged on information and belief,and that as to those matters deponent believes it to be true.Deponent further says that the reason this verification is made by deponent and not by The grounds of deponent's belief as to all matters not stated upon deponent's knowledge are as follows: The undersigned affirms that the foregoing statements are true,under the penalties of perjury. Dated: ..........................................................I....................... STATE OF NEW YORK,COUNTY OF ss.: INDIVIDUAL VERIFICATION ,being duly sworn,deposes and says that deponent is the in the within action;that deponent has read the foregoing and knows the contents thereof;that the same is true to deponent's own knowledge,except as to the matters therein stated to be alleged on information and belief,and that as to those matters deponent believes it to be true. Sworn to before me,this day of 20 ..................................................... Notary Public STATE OF NEW YORK,COUNTY OF ss.: CORPORATE VERIFICATION being duly sworn,deposes and says that deponent is the of the corporation named in the within action;that deponent has read the foregoing and knows the contents thereof;and that the same is true to deponent's own knowledge,except as to the matters therein stated to be alleged upon information and belief,and that as to those matters deponent believes it to be true. This verification is made by deponent because is a corporation.Deponent is an officer thereof,to-wit,its The grounds of deponent's belief as to all matters not stated upon deponent's knowledge are as follows: Sworn to before me,this day of 20 ..................................................... Notary Public STATE OF NEW YORK,COUNTY OF ss.: AFFIDAVIT OF SERVICE BY MAIL being duly sworn,deposes and says,that deponent is not a party to the action,is over 18 years of age and resides at That on the day of 20 deponent served the within upon attorney(s)for in this action,at the address designated by said attorney(s)for that purpose by deposit- ing a true copy of same enclosed in a postpaid properly addressed wrapper,in—a post office—official depository under the exclusive care and custody of the United States post office department within the State of New York. Sworn to before me,this day of 20 ••••••...........................................•••• Notary Public Index No. 10-343581 SUPREME COURT OF THE STATE OF NEW YORK ' COUNTY OF SUFFOLK LEWIS EDSON, Petitioner, -against- SOUTHOLD TOWN ZONING BOARD OF APPEALS Respondent. VERIFIED ANSWER SMITH, FINKELSTEIN, LUNDBERG, ISLER and YAKABOSKI, LLP Attorneys for Respondent Office Address 456 Griffing Avenue RIVERHEAD,NEW YORK 11901.0203 Tel:631-727-4100 Fax:631-727-4130 To Signature(Rule 130-1.1-a) ............................................................. Attorney(s)for Pnnt name beneath Service of a copy of the within is hereby admitted. Dated, Attorney(s)for Sir:—Please take notice NOTICE OF ENTRY That the within is a(certified)true copy of a duly entered in the office of a clerk of the within named court on 20 NOTICE OF SETTLEMENT that an order of which the within is a true copy will be presented for settlement to the HON. one of the judges of the within named Court, at on the day of 20 at M. Dated, Yours,etc. SMITH, FINKELSTEIN,LUNDBERG,ISLER and YAKABOSKI,LLP Attorneys for Office Address 456 Griffing Avenue RIVERHEAD,NEW YORK 11901.0203 Tel:631.727-4100 To Fax:631.727-4130 Attorney(s)for SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK --------------------------------------------------------------------X Assigned Justice: LEWIS EDSON, Hon. Patrick A. Sweeney Index No. 10-34358 Petitioner -against- RECEIVED SOUTHOLD TOWN ZONING BOARD OF APPEALS, DEC 2 2 2010 Respondent. 130ARD OF APPEALS ---------------------------------------------------------------------X RESPONDENT'S MEMORANDUM OF LAW SMITH,FINKELSTEIN,LUNDBERG, ISLER AND YAKABOSKI,LLP ATTORNEYS FOR RESPONDENT 456 GRIFFING AVENUE RIVERHEAD,NEW YORK 11901 STATEMENT r This memorandum is submitted on behalf of the Southold Zoning Board of Appeals in opposition to the petition herein purportedly brought to challenge restrictions placed on a farm stand permit granted by the Zoning Board (Return pages 1-5) . Since the restrictions are consistent with the petitioner' s own representations made at the, public hearing and with the Town Code, the Zoning Board' s determination should be sustained and this proceeding should be dismissed. FACTS The petitioner owns a 23 acre farm much of which is planted with evergreen trees principally for sale as Christmas trees. Over the years, the petitioner has been improperly using a 7, 824 square foot metal building located on the property as a retail store for the sales of Christmas-related products, in violation of the Southold Zoning Code. The Town commenced an injunction action to enjoin the use of the illegal use of the building for retail sales. The Supreme Court (by Baisley, J. ) granted a permanent injunction prohibiting the operation of petitioner' s retail store until and unless it complied with the zoning regulations (Town of Southold v. The Estate of Grace R. Edson and Lewis Edson, Suffolk County Index No. 1 11814-2007) . A copy of the Court ' s decision is annexed to the Affirmation of Frank A. Isler as Exhibit 6 . Justice Baisley' s decision has ,recently been affirmed by the Appellate Division, Second Department (Town of Southold v. The Estate of Grace R. Edson and Lewis Edson, _ A.D. 3d _, 2010 NY Slip Op 08091; 2010 WL 4539492) . A copy of the Appellate Division' s Decision and Order is annexed to the Affirmation of Frank A. Isler as Exhibit 7 . After the issuance of the permanent injunction by the Supreme Court, the petitioner decided to apply for a Farm Stand Permit under Section 72-5 of the Town Code. Under the Code, a farmer is permitted to operate a farm stand of no more than 3, 000 square feet, subject to specific limitations on, among other things, the extent of sale of "accessory" items not grown on the farm.l The Town Building Department initially denied petitioner' s application on the grounds that the proposed use of the 7, 824 square foot metal building as a farm stand was not permitted (see the Return at page 13) . The petitioner then appealed from the Building Department ' s disapproval to the Zoning Board of Appeals . 1 The applicable sections of the Farm Stand Code are attached to the Affirmation of Frank A. Isler as Exhibits 1 through 5. These various sections will be discussed in the Point II of this Memorandum. 2 At the public hearings held on his appeal, Mr. Edson represented to the Zoning Board that in order to comply with the farm stand requirements, he was only going to use no more than 3, 000 square feet of the existing metal building as a farm stand. The balance of the building would be "converted over into storage of equipment" (Town Return at page 158, line 15-16) . He stated that he would build an eight foot wall within the building to "section off the section of 3, 000 square feet allowed under the ordinance from the back of the building, which will be storage and equipment handling" (Town Return at page 178, lines 15-25) . While initially indicating that he would maintain a door between the farm stand and the storage area, Mr. Edson agreed that there would be no door: "CHAIRPERSON WEISMAN: If you're storing farm equipment back there and not any retail merchandise, why would the farm stand portion need to access farm equipment from that door? MR. EDSON: Just of ease of operation. I mean if you want a solid, wall, I don' t have a problem with that . " (Town Return at page 160, lines 15-21) . At the second public hearing, Mr. Edson again represented that there would be no connection between the portion of the building used as a farm stand and the portion used for equipment storage: 3 "CHAIRPERSON WEISMAN: However, if it is continuous, if there is a way to get from the 3, 000 square foot portion to a storage area, then it is one building. MR. EDSON: Then there won' t be a door there. CHAIRPERSON WEISMAN: Yeah, it has to have no door. Mr. EDSON: Okay. " (Town Return at page 179, lines 11-19) . During the public hearings, Mr. Edson also represented to the Zoning Board that the operation of the farm stand would be seasonal, commencing right after Labor Day (Town Return at page 162, lines 11-22) and ending as the season tapers off (Town Return at pages 196-197) . After closing the public hearings, the Zoning Board reversed the Building Department ' s denial of the petitioner' s farm stand application. The Zoning Board determined that the Farm Stand Permit was appropriate based on Mr. Edson' s representation that the building would be divided so that the farm stand operation would be limited to the 3, 000 square feet allowed under the Code. In addition, Mr. Edson had shown that he met the Code' s requirement that sale of products grown on his farm constitute at least 6096 of the business generated at the farm stand (Section 72-7 is annexed as Exhibit 4 to the Affirmation of Frank A. Isler) . 4 The permit requires Mr. Edson to comply with his representations made at the hearings by: 1 . obtaining a building permit to construct the wall to separate the two sections of the existing building; 2 . posting signs that the storage area portion of the building is for employees only and not for the general public; 3 . not using the storage portion of the building for retail sales or storage of non-farm produced merchandise; 4 . limiting the operation of the farm stand from Labor Day to March 31 of each year; and 5 . maintaining the property as an agricultural operation as required by the Code so long as the farm stand is in use (Town Return at page 5) . Despite his affirmative representations to the Zoning Board, Mr. Edson has now nevertheless brought this Article 78 proceeding to challenge conditions 3 and 4 listed above. For the reasons set forth below, the proceeding should be dismissed and the Zoning Board' s determination should be sustained. 5 POINT I PETITIONER IS BOUND BY HIS REPRESENTATIONS TO THE ZONING BOARD Despite his representations to the Zoning Board that the storage area portion of the building would only be used for the storage of farm equipment, petitioner now complains that the Zoning Board made that a condition of his permit. While the restriction is consistent with the Code (see Point II) , the petitioner is estopped under the doctrine of judicial estoppel from reneging on his representations made to the Zoning Board. Judicial estoppel precludes a party from asserting one thing in a prior proceeding and a contrary thing in a subsequent proceeding [see e. g. NY Jur.2d Estoppel, Ratification, and Waiver, § 54; PL Diamond, LLC v. Becker-Paramount LLC, 16 Misc.3d 1005 (A) ] . This doctrine applies equally whether the prior proceeding was administrative or judicial [Mauro v. Choi, 11 Misc.3d 1070 (A) ; Missry v. Ehlich, 1 Misc.3d 723] . Likewise, petitioner is estopped from challenging the Zoning Board limitation of the period the stand can be operated since that condition is based upon Mr. Edson' s own statements . Certainly if Mr. Edson' s' operations were to change, he would have the right to apply for an amended farm stand permit. 6 POINT II THE ZONING BOARD' S RESTRICTION ON THE USE OF THE STORAGE AREA COMPLIES WITH THE CODE Even if petitioner were not estopped from arguing that he can use the storage area of his building to store merchandise associated with the farm stand, such use would contravene the Farm Stand Code. Petitioner' s argument that he has the right to store merchandise outside of the 3, 000 square foot farm stand area is refuted by the Code. Section 72-4 defines a "farm stand" as any "primary structure or portion of a structure greater than 80 square feet used for the purpose of retail sale of locally produced agricultural products grown by the owner or lessor of the structure, as well as the accessory sale of processed agricultural-related products and incidental accessory items" (emphasis added) . Pursuant to Sections 72-6 (A) (2) and 72-8 of the Code, the total floor area of a "farm stand structure" cannot exceed 3, 000 square feet. Copies of Sections 72-6 and 72-8 are annexed to the Affirmation of Frank A. Isler as Exhibit 3 and 5 respectively. The Code also expressly contemplates that the farm stand can have portions used for "retail sales area" : "Portions of a farm stand operation, usually covered, which are dedicated to the direct marketing and sale of farm stand products, including public rest rooms, but excluding storage areas, temporary display areas 7 and other areas not accessible to the general public" (emphasis added) . The full text of Section 72-4 is annexed to the Affirmation of Frank A. Isler as Exhibit 1. Reading these sections together demonstrates that the entire "farm stand" , including all retail sales and other related activities, are restricted to a maximum total area of 3, 000 square feet. The intent is to allow farmers to sell their products while limiting these retail stores to small operations in the agricultural areas of the Town. As a result, even if Mr. Edson had not represented that he would 'only use the balance of the metal building for storage of farm equipment, he could not use that area for any part of the farm stand operation, including the sale or storage of merchandise. CONCLUSION THE PETITION SHOULD BE DISMISSED AND THE ZONING BOARD DECISION SHOULD BE SUSTAINED As has been his history, Mr. Edson says one thing when it suits him then acts differently for his own self- interest. The Appellate Division and Supreme Court have both told him that he is barred from using the entire metal building as a commercial store. Mr. Edson stood in front r 8 I� of the Zoning Board and said he would not use the balance i of the building as part of his "farm stand" . Now, he argues he can use the entire building as part of his retail operation. His argument should be rejected and his petition dismissed. Dated: Riverhead, New York December 20, 2010 Frank A. Isler 9 SMITH,FINKELSTEIN,LUNDBERG,ISLER AND YAKABOSSI,LLP ATTORNEYS AND COUNSELORS AT LAW 456 GRIFFING AVENUE,CORNER OF LINCOLN STREET RIVERHEAD,N.Y.11901-0203 FRANK A.ISLES x(331)727-4100 HOWARD M.FINKELSTEIN SUSAN ROGERS GRUN FAX(631)727-4130 RETIRED GAIR G.BETTS JEANMA IIE GUNDEESON PTRWIR r.G.LUNDBEIAO PHIL SIEGEL RETIEED JONATHAN M.MAIZMO Direct E-Mail:fislel@sfliy.com FRANCIS J.YATrAROSSS OF COUNSEL January 3, 2011 REGINALD C.SMITH 1926-1983 Leslie Kanes Weisman Chairman of the Zoning Board of Appeals RECEIVED 53095 Main Road P.O. Box 1179 JAN m 5 2011 Southold,New York 11971 Re: Lewis Edson v. Southold Town Zoning Board of Appeals BOARD OF APPEALS Index No. 10-34358 Dear Madam Chair: Enclosed please find the reply memorandum of law we have received from the petitioner. This matter has now been fully submitted to the Court. We will keep you advised. Ye trul rs r A. Isler FAI/cd Enclosure cc: Martin Finnegan, Esq. —w/encl. RECEIVED SUPREME COURT STATE OF NEW YORK JAN - 5 2011 COUNTY OF SUFFOLK --------------------------------------------------------X BOAR® OF APPEALS _ LEWIS EDSON, Index No.: 10-34358 Petitioner against- SOUTHOLD TOWN ZONING BOARD OF APPEALS, Respondents. -------------------------------------------------------- X PETITIONER'S REPLY MEMORANDUM OF LAW IN SUPPORT OF PETITION Eric J. Bressler Attorneys for Petitioner Wickham, Bressler, Gordon&Geasa PC 275 Broadhollow Road, Suite 111 Melville,New York 11747 RECEIVED JAN - 5 2011 TABLE OF CONTENTS BARD OF APPEAL PAGE STATEMENTOF CASE........................................................................................................ 1 POINT I SINCE PETITIONER IS NOT ESTOPPED FROM CHALLENGING THE STORAGE CONDITION AND THE SEASONAL CONDITION, SUCH CONDITIONS SHOULD BE ANNULLED ........................................................................... 1 POINT II SINCE THE ISSUE OF A DOOR BETWEEN THE FARM STAND AND THE REMAINDER OF THE BUILDING IS MOOT, THE COURT SHOULD DISREGARD RESPONDENT'S ARGUMENTS REGARDING THE DOOR.......................4 CONCLUSION ......................................................................................................................4 3• S 'Y 1 t RECEIVED JAN ® 5 2011 STATEMENT OF THE CASE BOARD OF APPEALS Petitioner submits this reply memorandum of law in support of his petition to annul certain conditions contained in the Determination of Respondent (capitalized terms have the meaning set forth in Petitioner's principal brief). Specifically, Petitioner seeks to annul the Storage Condition and the Seasonal Condition contained in the Determination. Respondent answered and in response to Petitioner's principal brief interposed an affirmation of its counsel and a memorandum of law in opposition. This reply memorandum in response thereto. For the reasons set forth in the petition, Petitioner's principal brief and herein, the petition should be granted and the Storage Condition and Seasonal Condition annulled. POINT I SINCE PETITIONER IS NOT ESTOPPED FROM CHALLENGING THE STORAGE CONDITION AND THE SEASONAL CONDITION, SUCH CONDITIONS SHOULD BE ANNULLED Petitioner submits that he is not estopped from challenging the Storage Condition and Seasonal Condition by reason of the proceedings before Respondent. Accordingly, these conditions should be annulled. A. THE STORAGE CONDITION During the public hearing, Petitioner in response to questions from the members of Respondent indicated uncertainty regarding the use of the remainder of his building which was not dedicated to farm stand use. At one point Petitioner indicated that the remainder of the building was to be used for equipment storage(R 15014-16). At a later point Petitioner indicated that he might be storing things that belong in the farm stand in such section of the :t 1 RECEIVED JAN - 5 2011 building (R-161 18-14). Shortly thereafter, Petitioner stated that he did not know thegPAR&®F APPEALS of the remainder of the building (R-161 120-25, R-16211-3). Finally, Petitioner later advised that the remainder of the building would be used for storage and equipment handling (R-178 1 15-25). Respondent has alleged that these statements constitute a judicial estoppel only and not a promissory or other estoppel. These statements do not constitute a basis for application of the doctrine of judicial estoppel for four reasons. First, there is no authority in the Code which speaks to the use of any other building or portion thereof in relation to granting or denying a farm stand permit and Respondent does not argue to the contrary. Thus, the Respondent was without power to impose the condition, regardless of what Petitioner's intent may have been. Second, whether or not a certain use of the remainder of the building of which the farm stand was a part was permitted was not before the Respondent, as expressly conceded by the Determination. Third, Petitioner's statementsof intention in three iterations are all different. The best that could be said of these statements, taken as a whole, was that Petitioner was uncertain of the use of the remainder of the building. Petitioner was not asked to consent to a condition and never so consented. Finally, judicial estoppel requires that there be contrary factual positions asserted in litigation. Petitioner took no position with respect to Respondent concerning the issue of the Storage Condition. Thus, no contrary position is taken. The doctrine of judicial estoppel requires an inconsistent factual position, but does not preclude all appropriate legal arguments. PL Diamond, LLC v. Becker Paramount, LLC, 16 Misc 3d 1105 (A), 841 NYS2d 828 (Sup. Ct.NYCty, 2007). In the instant case it is Petitioner's position that his statements, assuming, arguendo, that they are not f V 2 a�y S RECEIVE® JAN o 5 2011 ambiguous or unclear, do not constitute an adoption of a position in connection w#bh1ZD OF APPEALS Determination and do not legally support the conditions. Petitioner's papers were devoid of any reference to the issue and Respondent itself • conceded that the issue was not properly before it. Simply put, Petitioner is not adopting or advocating a contrary position. Rather,he is asserting that a imposition of condition is not warranted by law. As a result, the Storage Condition should be annulled. B. THE SEASONAL CONDITION During the public hearings, Petitioner, in response to questions from members of the Respondent indicated that historically he had operated from Labor day until after the Christmas holidays (R-162110-22). He also indicated that he intended to follow such practice (R-196- 197). These statements do not constitute the basis for a judicial estoppel for three reasons. First, there is nothing in the Code that speaks to the seasonality or hours of the farm stand operation and Respondent does not argue to the contrary. Thus, the Respondent was without the power to impose such a condition, regardless of what Petitioner's present intent may have been. Second, Petitioner's statements did not amount to more than a statement of past operating practices and contemplated future operations. Petitioner was not asked to agree to or otherwise consent to such condition. Finally,judicial estoppel requires that there be contrary factual positions asserted in litigation. PL Diamond LLC, supra.. Petitioner took no position with respect to Respondent concerning the issue of the Seasonal Condition. His papers were devoid of any reference to the issue. Simply put, Petitioner is not adopting or advocating a contrary position. Rather, he is asserting that a imposition of condition is not warranted by law. As a result, the Seasonal Condition should be annulled. .t 3 RECEIVED POINT II JAN 5 2011 SINCE THE ISSUE OF A DOOR BETWEEN THE FARM STAND AND THE REMAINDER BOARD OF APPEALS OF THE BUILDING IS MOOT, THE COURT SHOULD DISREGARD RESPONDENT'S • ARGUMENTS REGARDING THE DOOR Petitioner submits that the portion of the Respondent's argument addressing the existence of a door between his farm stand and the remainder of the building is moot. Accordingly, the Court should disregard that portion of Respondent's memorandum addressing same. Respondent in its brief(p 3-4)inexplicitly raises the issue of the door between the farm stand and the remainder of Petitioner's building. This door was specifically approved by the Respondent upon the condition that it be posted with a sign indicating that access beyond the door was for employees only and not for the general public. Thus, any argument by Respondent with respect thereto is irrelevant and should be disregarded. CONCLUSION The Storage Condition and Seasonal Condition are totally unsupported by Code, ultra. viras, and irrational. Petitioner never agreed to either condition as a condition of his permit. As a result the conditions should be annulled. Dated: Melville, New York December 28, 2010 Respectfully submitted, Wickham, Bressler, Gordon, & Geasa, PC s 9, By: Eric r ssl a tr a 4 a