HomeMy WebLinkAboutPadovan, AngeloRESOLUTION
NOVEMBER 19, 2002
V - 768
FINDINGS, DELIBERATIONS AND DETERMINATION
MEETING OF NOVEMBER 7, 2002
In the matter of the application of Proper-T Permit Services, appellant, to reverse the
determination of the Southold Town Trustees made on February 20, 2002, denying applicant
permission to construct a single-family dwelling, partially on pilings, with an on-site sewage
disposal and public water system located on the property owned by Angelo and Josephine
Padovan, of 22455 Sound View Avenue, Southold: SCTM #1000-135-1-23 & 24.1.
RELIEF REQUESTED
This is an appeal to reverse the decision made by the Southold Town Trustees dated
February 20, 2002, issued to Proper-T Permit Services, on behalf of Angelo and Josephine
Padovan, denying their request to "construct a single-family dwelling, partially on pilings, with
on-site sewage disposal system and public water." Appellant requests that the board reverse the
decision of the Trustees and grant a variance on the following grounds:
1. Appellant maintains that a variance would not compromise the existing shorefront natural
features, cause significant adverse effects upon the environment or put the proposed dwelling in
harm's way.
2. Appellant maintains that there is no other reasonable, prudent, or alternative site owned by
Mr. and Mrs. Padovan that is not already developed and thus, the present location is the only
available site for said purpose.
3. Appellant alleges that the design of the proposed structure will be such that the only intrusion
into the beach area will be the installation of pilings necessary to support the seaward portion of
the structure above the beach area.
4. Applicant further maintains that, based upon the long-term and damage-free survival of
several structures of similar type located to the west as well as to the east of the proposed
structure, it can be expected that said structure will be reasonably safe from flood and erosion
damage.
5. In addition, applicant maintains that the variance requested is the minimum necessary to
overcome the practical difficulty and necessary hardship which is the basis for the relief
requested.
FINDINGS OF FACT
The Town Board of the Town of Southold held public hearings on this application on
June 18, 2002, and July 16, 2002, at which time both written and oral evidence was presented.
Based upon the review of the files of the Town Clerk's Office, the Trustees' Office, the
testimony and minutes of both the Trustee and Town Board public hearings, personal inspection
of the property, a review of a side elevation drawing submitted by applicant dated December 10,
2001, a survey submitted by applicant last dated May 23, 2001, and all other relevant
documentation, the Town Board finds the following facts to be true and relevant:
Relevant Code Provisions
Section 37-30 of the Southold Town Code addresses variances within the Coastal Erosion
Hazard Area. Initially, the law clearly indicates that the applicant shall bear the burden of
proving that, if the following criteria are met, a variance may be granted to circumvent the
restrictions imposed on the property. Key to this analysis, however, is that all of the applicable
criteria enumerated in §37-30 of the Code -- sections A, B, C, D, and, if applicable, E -- are
met. The criteria are:
A. No reasonable, prudent, alternative site is available.
All reasonable means and measures to mitigate adverse impacts on natural systems
and their functions and values have been incorporated into the activity's design at the
property owner's expense.
C. The development will be reasonably safe from flood and erosion damage.
D. The variance requested is the minimum necessary to overcome the practical difficulty
or hardship which was the basis for the requested variance.
E. Where public funds are utilized, the public benefits must clearly outweigh the long-
term adverse effects.
1. Finding of fact: Is there a reasonable, prudent, alternative site available?
In addressing this factor applicant only alleges that no other property is owned which is
not already developed. Thus, applicant's conclusion prematurely assumes that "the proposed
location of the dwelling on the property is the best location from all standpoints." Based on the
record, no alternatives have been addressed by the applicant utilizing architects, environmental
consultants, contractors, the planning board or the zoning board to move the home landward
towards Sound View Avenue. Furthermore, the survey submitted by applicant suggests that
there is in fact a portion of applicant's property, closer to Sound View Avenue, which would
possibly allow for construction and avoid, or, at the very least, diminish damage to the Coastal
Erosion Hazard Area.
2. Finding of fact: Have all reasonable means and measures to mitigate the adverse impacts on
natural systems been incorporated into the activit¥'s design at the owner's expense?
The applicant has failed to show that all responsible means and measures to lessen the
adverse impacts have been incorporated into the structure's design. Indeed, the applicant has
failed to show mitigation of adverse impacts in any way and has not articulated to any degree of
certainty how that will be addressed. Rather, applicant merely describes how the structure would
be built, and refers to the existence of pilings for "other purposes routinely permitted throughout
the Town." Applicant fails to provide any explanation or plan that will avoid or minimize any
compromise or damage to the existing shorefront and its natural features.~
3. Finding of fact: Will the development be reasonably safe from flood and erosion damage?
The applicant has failed to show that the proposed structure will be reasonably safe from
flood and erosion damage. The applicant relies on the fact that other structures of similar type
are still erect and thus, it "can be expected" that this proposed structure would be free from
erosion damage. Despite this contention, however, nothing has been provided to the Board by
way of an expert or environmental consultant indicating that the area is actually reasonably safe
from flood or erosion and thus, could withstand the pressures of weather patterns without
protection and without putting the dwelling in harms way. Furthermore, applicant has failed to
submit an engineer's report addressing the state of the structures of "similar type" relied upon.
Moreover, due to the very nature of the coastal erosion hazard area and its malleability and
vulnerability to change, comparisons to other structures are not entirely sufficient to address this
factor.
Furthermore, while applicant refers to a structure currently on the property, as illustrated
in Exhibit A, it seems clear from even a brief review that the location of the proposed pilings,
circled on said exhibit, are located significantly further seaward than the existing structure.
Moreover, though applicant does not articulate how much further seaward these proposed pilings
are, it also seems clear that said pilings, as well as any dwelling and proposed septic system, will
no doubt destroy the existing bluff and, in mm, destroy the current vegetation, with no plan
submitted or offered for re-growth. Indeed, it is well-settled that a bluff protects shorelands and
coastal development by absorbing the often destructive energy of open water. Bluffs are a
source of depositional material for beaches and other unconsolidated natural protective features.2
Here, applicant's proposal would destroy all such bluffs and thus, destroy any protection the
structure may have from soil disturbance, water runoff, active erosion, and the impact of coastal
storms. For these reasons, applicant cannot submit that the development will be reasonably safe
from flood and erosion damage.
~ At the time of this application, applicant had failed to obtain a permit from the Department of Environmental
Conservation (DEC) of the State of New York as well as the Suffolk County Health Department, and had likewise
failed to address concerns of the Health Department with respect to swaying and sand consistency.
2 Se~e Southold Town Code §37-17.
4. Finding of Fact: Is the variance requested the minimum necessary to overcome the practical
difficulty or hardship which was the basis for the requested variance?
The applicant has failed to show that the variance requested is the minimum necessary to
overcome the difficulty or hardship. While a variance may be the minimum necessary to build
any structure on said property, this particular structure proves to be, for the lot size, a rather
large, two-story home, utilizing the entire area owned by Mr. and Mrs. Padovan and failing to
limit or minimize the damage that may be caused to the erosion area. Indeed, while the
minimum lot size for a one-family detached dwelling in the applicable R-40 zoning district is
850 square feet,3 the applicant proposes a structure with a footprint that suggests the home will
be at least 1600 square feet4 in size and approximately 36 feet above the existing grade and 45
feet above sea level. In short, applicant has failed to demonstrate any effort to minimize
permanent damage and prevent adverse effects upon both the natural protective features and the
natural resources present in the development site.
5. Finding of Fact: If public funds are utilized, do the public benefits clearly outweigh the long-
term adverse affects?
Because public funds will not be utilized, this section is not applicable and should not be
considered.
6. In addition to the above, the Board has considered all arguments and issues raised by
appellant.
RESOLUTION OF THE BOARD: In considering all of the above factors and applicable
standards, the Town Board of the Town of Southold hereby resolves that appellant has failed to
meet his burden as required under §37-30 of the Southold Town Code. Because appellant has
failed to meet the criteria embedded in the Code, specifically, sections A, B, C, and D, the
granting of a variance would be contrary to the purpose and intent of Chapter 37, which ensures
the protection of land use and land development activities as well as the maintenance of natural
protective features and natural resources. Thus, the Town Board of the Town of Southold hereby
further resolves to
DENY appellant's request to reverse the decision of the Board of Trustees denying
appellant a coastal erosion management permit and granting appellant a variance to
construct a dwelling on 22455 Sound View Avenue. Thus, the denial of the Board of
Trustees is hereby affirmed.
3 See Southold Town Code § 100-30A.3.
4 Since the applicant fails to articulate the actual square footage of the proposed dwelling anywhere in the papers
submitted for review, this figure is only an estimate of the actual lot size.
4
Proper- T Permit Services
POST OFFICE BOX 617, CUTCHOGUE, NEW YORK 11935-0617
(631) 734-5800
October 1, 2002
Supervisor Horton and the Town Board
Town of Southold
Town Hall, 53095 Main Road
Southold, New York 11971
Re: Appeal of A Decision of the Southold Town Trustees with regard to the Application
ofAngelo Padovam SCTM #1000-135-1-23 & 24.1~ and Request for a Variance
Gentlepersons:
We applied for this variance on March 15, 2002.
The Board held a public hearing on the matter on June 18, 2002; the meeting was adjourned and
reopened on July 16, 2002.
We are anxiously awaiting news of the Board's decision in the matter. We would appreciate any-
thing that can be done to move things along.
cc: Mr. and Mrs. Padovan
a subsidiary of
THE PECONIC EASTERN CORPORATION
631-477-0184
David S. Corwin
639 Main Street
Greenport, NY 11944-1431
August 1, 2002
Southold Town Board
Town Hall
53095 Route 25
Southold, NY 11971-0959
Subject: Padovan Coastal Erosion Appeal
Lady and Gentlemen:
c~n@optonline.net , t
I am sorry I missed your deliberations on the Padovan Coastal Erosion Appeal Tuesday,
July 30, 2002.
First let me be candid as to where part of my interest in this matter lies. I am the owner,
together with a brother and five cousins, ora small piece of property approximately 1,100
yards east of the Padovan location. My interest doesn't stop at the burden I have as a
property owner and tax payer, it includes the right of individuals to use their property in
the same manner as others have been allowed to use property in the past.
The assessors place an assessment value on sound front property based on the linear
footage of waterfront, not on a reasoned value of a lot derived from its area. In 1994 I
asked the Southold Town Board of Assessment Review to lower the assessment on my
property (tax map No. 1001-44-1-16) on the theory that the beach had eroded and that the
lot could not be built on. I was informed by one of the assessors that the property could
be built on and as proof of this the assessor referenced a residence that had been
constructed 100 feet to the west of lot 16. After this information I abandoned my long
held thought that all I wanted to do was use the beach for swimming and figured, "IfI am
being taxed for a waterfront building lot, I would have to build on the lot at some point in
time."
I am at a loss to understand how the Southold Town Assessors can assess property based
on the thinking that it can be built upon, while the Town Trustees and the Town Board
tell a property owner that his property cannot be built upon.
In August 1992 Mrs. Susan Tasker applied to the New York State Department of
Environmental Conservation for a wetlands permit to construct a house approximately
200 feet west of the Sounflview Restaurant on property given tax map No. 1000-44-2-11.
The lot is smaller than the Padovan lot. All local variances were granted. The NYSDEC
denied the Wetlan ,d~ ~ermit application. An Adjudicatory Hearing was held in October
1994 by the NY~I~,C at Southold Town Hall. The judge granted Mrs. Tasker the
issuance ora Ti~lalhOVetlands Permit (Decision of the Commissioner, Tasker, DEC
Project No. 1-4378-00588).
Southoid Town Board
August 2, 2002
The Southold Town Trustees also issued a permit for this site and reissued the permit at
least once when it was about to expired. The last time the town Wetlands Permit was
reissued was about one year ago.
Recently the Southold Town Building Department issued a Building Permit for the
property.
For the Southold Town Trustees and the Southold Town Board to change the
circumstances under which permits are issued is wrong.
The former Tasker propeRy now being built on.
But, let me direct my thoughts to the Padovan property. Surely Padovan is not asking for
anything his neighbors to the east don't have. Two of the houses to the east were built
recently. Surely the Padovan site is zoned for residential use and taxes have been paid on
the property though the years as if it could be built on.
The Town Code holds as one of its criterion to be met for an appeal: A. No reasonable,
prudent, alternative site is available. What is a reasonable alternative site? If an
individual wants a house on the waterfront rather than in a subdivision is that not the
individual's reasoned choice? How can the Town Board deny the owner the use of the
propen'y? Is the Town Board prepared to compensate the owner of residential property
for effectively taking his property for use as an erosion zone?
The Town Code holds as a second criterion to be met: B. AH responsible means and
measures to mitigate adverse impacts on natural systems and their functions and values
have been incorporated into the activity's design at the property owner's expense. Surely
the Town Board is not going to say no based on this clause.
The Town Code holds as a third criterion to be met: C. The development will be
reasonably safe from flood and erosion damage. The plan I saw looks reasonably safe
from flood and erosion damage. That is what the pile foundation is for.
I am at a loss to understand how the Southold Town Board can uphold the findings of the
Southold Town Trustees. The Town Trustees seem to have taken a position that no
2of3
Southold Town Board
Augu~ 2,2002
building should be going on. They try to stop docks whenever they can. Just look at the
recent communication to the Town Board where the Trustees said they didn't want to
issue permits for docks on the Peconic Bay and they would like to codify it. Councilman
Wickham tightly pointed out that there is a question of tiparian rights here and the idea
seems to have lost traction.
Padovan is not asking for anything neighbors to
the east don't have
The Town Board has no reasonable basis to deny the Padovan appeal. What the Town
Board is in fact saying is, "Hey, if you want to build on this piece of property we are
raising the bar to $60,000 and the New York State Supreme Court."
Please carefully consider the property owner's rights before you deny Padovan his
appeal.
Respectfully yours,
David S. Corwin
3 of 3
SOUTHOLD TOWN BOARD
PUBLIC HEARING
July 16, 2OO2
10:00 A.M.
CONTINUE HEARING ON APPEAL OF SOUTltOLD TOWN TRUSTEES' DENIAL OF
ANGELO & JOSEPHINE PADOVAN APPLICATION.
ON THE QUESTION OF APPEAING A DECISION OF THE SOUTHOLD TOWN TRUSTEES'
DENIAL OF THE ANGELO & JOSEPHINE PADOVAN APPLICATION TO CONSTRUCT
SINGLE FAMILY DWELLING, PARTIALLY ON PILINGS, WITH ON-SITE SEWAGE
DISPOSAL SYSTEM AND PUBLIC WATER AT NORTH SIDE OF SOUNDVIEW AVENUE~
SOUTHOLD, NEW YORK. PROPERTY IN QUESTION IS IDENTIFIED BY SCTM# 1000-135-
1-23 & 24.1 THIS APPLICATION WAS DENIED UNDER CHAPTER 37 (COASTAL EROSION
HAZARD AREAS) OF THE TOWN CODE.
Present:
Supervisor Joshua Y. Horton
Justice Louisa P. Evans
Councilman William D. Moore
Councilman John M. Romanelli
Councilman Craig A. Richter
Councilman Thomas H. Wickham
Town Clerk Elizabeth A. Neville
Town Attorney Gregory A. Yakaboski
SUPERVISOR JOSHUA Y. HORTON: We are reconvening this hearing initially opened on June 18,
2002. At this time I would like to offer the floor to address the Town Board, members of the
community or public who would like to have a word in regard to this appeal. I ask that when you do
address the Board, you state your name and place of residence.
JAMES FITZGERALD, PROPER-T-PERMIT SERVICES: I am representing Angelo and Josephine
Padovan. I reside at 385 Haywaters Drive in Cutchogue. As you indicated this is a reconvening of this
heating. First I would like to ask about the impact that Justice Evans and Mr. Moore where not here for
the big part of my presentation and presumably they would be involved in voting on this and that
concerns me.
SUPERVISOR HORTON: If you would like a response to that, Cotmeilman Moore and Justice Evans
being members of the Town Board receive all of the information that was passed along at the meeting
so they are well aware of the status of this application and your comments as well.
MR. FITZGERALD: Okay. I just, ifI may, some of this is repetitious but I think that some of it bears
repeating. Section 3730 of the Town Code allows variances from standards of restrictions and it states
4
coastal erosion and dealing with structures located in environmentally sensitive areas near waterways.
This is on the beach, for all intent purposes. This is also adjacent to a road and under the
circumstances from my clients' point of view, they have real concerns about the location and real
concerns about what is going to happen in the future. Now, if I could just briefly go over the 37-30
standards. Strict application of these standards and restrictions, under sub-section A, no reasonable
prudent alternative site is available, well I am not exactly sure how many feet in terms of relief that
they are requesting from what the footage is that is allowable at the site as opposed to what is being
built upon. All that I know that what is being built upon is a very small site as is. That is the
applicants property and I can't see any site on the property where they could build that is living up to
the coastal erosion set-backs, I don't believe that that is possible at least from my review from the
survey and other documents submitted by the applicant. But them are other sites in town and these
people do have an existing structure there, so they do have use of this property so we are not talking
about property that is un-usable. Them is actually already an existing structure there. All responsible
means and measures to mitigate adverse impacts have been incorporated into the activities design at
the property owner's expense. I am not sure whether there has been any discussion on whether them
has been any mitigation at all by the applicants. We are talking about a huge sa'ucture here, a two-
story structure on a very small parcel that is going to go way up. The development will be reasonable
safe from flood and erosion damage. This is beach-front property and I think that the reason that
Chapter 37 exists is because of the concern of the Town Board of the Town of Southold back when
they adopted Chapter 37 about the location of structures and dealing with flood and erosion issues.
The inclement weather conditions, hurricanes all of that, that those are all concerns that I believe are
the reason that the only way that a person in the Town of Southold can build in the Town of Southold
in the coastal erosion hazard areas is to get the approval of this Board. I believe that the reason that it
was set up this way was because the Board wanted to examine on a case-by-case basis these types of
situations and make sure that flood and erosion issues are dealt with. So I think that that is part of what
the process is that we are dealing with here. The variance request is the minimum necessary to
overcome practical difficulty or hardship, which was the basis for the requested variance. I think that
the size of the structure is an issue from my point of view. While my clients are opposed to the
applicants, the relief requested by the applicant, the structure itself. The size of the structure of being
two-stories, being on pilings, it obstructing their views, it all concerns my clients a great deal. They
believe that it is going to negatively affect their property values, they believe in addition to that that it
is going to de-stabilize the beachfront area if them were to be a couple of good storms that they might
be dealing with some serious issues in the near future. In fact, the decking that they have right
adjacent to this property has to be repaired annually because of damage due to storms and the weather
conditions them. The last of the five where public funds are utilized isn't applicable here because this
is private property. I am trying to go through this as quickly as I can. I also want to mention that I
think that SEQRA is in play hem a little bit. While there is a pretty strong presumption that as a type II
there really shouldn't be much in terms of environmental review, I think that because we are talking
about relief from Chapter 37 of the Town Code, I think that environmental issues are significant here
so I would strongly suggest that the Board consider long form EAF (environmental impact statements)
on behalf of the applicants I think that these are all issues that should be considered by the Board as
well as possibly FEMA all though I am not sure about that. I included that in my memo of law as well.
Needless to say, I will conclude here-my clients are opposed to the application, I think that my
memorandum of law goes into more detail as to what my clients concerns are. I've also included the
analysis based on area variance standards. We ask that the Board deny the relief requested by the
applicant.
5
COUNCILMAN MOORE: I should have asked you, Mr. Fitzgerald and I didn't, I apologize, so you
can answer, too. Was expert testimony provided as to the impacts or lack of impacts at the time of the
Trustee hearing? You made reference to your clients believe that there would be adverse impacts to.
ADAM GROSSMAN: Right, well my clients actually weren't at the Trustees hearing, unfortunately.
They weren't aware of this process until this public hearing before the Town Board was commenced.
COUNCILMAN MOORE: The day before actually.
ADAM GROSSMAN: Yes.
COUNCILMAN MOORE: And at your Trustee hearing?
MR. FITZGERALD: The details and the issues never came up in the Trustee hearing. The mason for
that is that the Trustees indicated at the opening of the public hearing that the Chapter 37 would not
allow them to issue a permit for the project and therefore there was no question about how big it was or
what the location was, except that it appeared to be in the Trustee's view, in the so-called bluff area
and or beach area and therefore development is prohibited. And them was never any discussion of the
details of the project.
SUPERVISOR HORTON: Thank-you. We have quite a few people who would like to address the
Town Board, so again if we could keep to the five-minute interval it would be much appreciated by
everybody here. Would anybody else care to address the Town Board in regard to this hearing?
TRUSTEE PRESIDENT ALBERT KRUPSKI, JR.: Albert Krupski, Chairman, Southold Town
Trustees. I am also President of the whole Board of Trustees. We am in the middle of our monthly
field inspections so it is fortuitous that we were in the neighborhood this morning. We acted as Mr.
Fitzgerald said, we acted on this application based on the merits of Chapter 37 which the application
was for a house on the beach. Chapter 37 was clear on that, building on the beach was prohibited. It
was pretty straight-forward. We did not review it under Chapter 97, wetlands, where we also have
jurisdiction. We tried to send Mr. Padovans' money back actually when the money came in because it
is very clear that we don't even want to review something that is totally prohibited. It is like there
really is no limit to what can be proposed. If someone comes in with something really outrageous for a
piece of property we don't even want to take an applicants money and go through a review process that
obviously is going to be unsuccessful. We try to be fair with the applicant and look at these
applications on their merits and in fact do they have a chance and if something is prohibited in black
and white in the code we really try to discourage them based on that. Chapter 37 is pretty clear on that.
SUPERVISOR HORTON: Do any Board members have any questions for Al?
ALBERT KRUPSKI: Chapter 37 was written to protect natural shoreline beaches. That is the whole
point. Also this is an appeals process for Chapter 37, that the Town Board is the Appeals Board for it.
You know how many times this has come before the Town Board.
COUNCILMAN MOORE: I think that this is the second time and I brought the first one.
ALBERT KRUPSKI: That is correct, so this isn't a something that is a normal circumstance. This is
unusual. Normally, we look at all different parameters. We do look at any kind of alternatives that
could be done on the site to make the applicant have whatever use they are proposing for their
property. But in this case, it was really clear that it was a house that was proposed on the beach, it was
cut and dry.
SUPERVISOR HORTON: Thank-you, Al. Thank the Trustees for us, for coming down in the middle
of their field inspections. Are there any others who would like to address the Town Board?
MARY PAPANTONIO: From the North Fork Beach Condominium Alternative. I have had houses
here over the past years and my last house was Bay Shore Road in Greenport. My neighbors were
taking the mussels, they completely eroded theirs and then they were coming out to ours. We couldn't
get satisfaction so we sold the house. Now here, I thought it would be the best interests for my
children. My daughter is majoring in environmental science, she is up to here, she says "Mom, you
have got to fight this." I am relentless for my children and the future generations, that is why I am
here. Restraining area, vegetation destroyed, destroyed. How much can you take away from this
place? My children grew up here, they have friends here in Orient and Mattituck, wonderful people
and what is going to be left of the shoreline? People can't even walk down there. Rocks, rocks taken
away. It is, I am glad people enjoy this area and build but when we got lots by Pine Neck you had to
have one acre zoning, that is one acre zoning. That is what we were told. It is an acre, this area? That
he wants to build? I can't say. But I am making a plea, just for the future generations here. Not
because it is not going to look pretty to us. He has every right, he bought that property, it is his right to
do what he pleases. But for the future generations I am making a plea. When I came, it was dry at the
North Fork beach. I am planting, planting flowers, trees and everybody will attest to it because I want
to make a beautiful. And I don't care if people like cement, I love vegetation. Plants, plants-until they
are coming out of my ears. It gives us something back to the next generation. That is all I have to say.
Thank-you for listening.
SUPERVISOR HORTON: Thank-you very much. Would anyone else like to address the Town Board
on this hearing?
DAVID CORWIN: My name is David Corwin, I live in Greenport. I don't know how the Town Board
can collect taxes on a piece of property and then turn around and tell somebody that you can't use the
piece of property. And I don't know how people can say "Well, my view is going to be destroyed."
When some gentleman was paying taxes on a piece of property over the years. The value, when he
bought the piece of property of the taxes that somebody else paid was reflected in the price. So I don't
understand how the Town Board can take somebody's rights to build away. Thank-you.
SUPERVISOR HORTON: Thank-you, Dave. Would anybody else care to address the Town Board?
PETER VEKIARELLIS: My name is Peter Vekiarellis, with North Fork Condominiums. All of us pay
taxes and when we buy a piece of property we buy it knowing we will pay taxes. Taxes are no
surprise. On Soundview Avenue, there is a house, Nickolaus-to the right of Mr. Nickolaus' house, the
house had to be completely demolished and renovated from scratch. This is up on a hill, because of
7
the erosion that has been done throughout the years the person had to move his home back. I don't
know the gentleman's name but it is on the-the Nickolaus home on the right.
SUPERVISOR HORTON: Does this pertain to the particular application? I'll allow you to proceed
but if you would please keep it to this application.
PETER VEKIARELLIS: I am giving you an example of the erosion because the gentleman said that
there is no way and there is. The whole home had to be taken down and moved back and this is all the
way up on the hill. The Nickolaus house is the crapshoot, he says eventually maybe 15-20 years I'll
have to do the same. So it is taking an effect on the home. That is all I want to say and I appreciate
your time.
SUPERVISOR HORTON: Thank-you very much. Would anybody else like to address the Town
Board?
MR. FITZGERALD: I think that it is important that everybody here understand that we are not asking
for a building permit. We are asking for a variance to the provisions of Chapter 37, which is the
coastal erosion hazard area management act. We are still going to have to get a wetlands permit from
the Trustees, a wetlands permit from the DEC, an area variance fi.om the Zoning Board of Appeals and
then we will go for a building permit. I think that folks are concerned by area variance concerns, that
is fine and they will get a chance to come to another meeting presumably and talk about their concerns.
Unfortunately, I don't think there is any, we don't need a variance as far as the view is concerned. No.
SUPERVISOR HORTON: Are there any other comments? If not then we will close this public
hearing.
COUNCILMAN MOORE: I move we close.
COUNCILMAN ROMANELLI: Second.
SUPERVISOR HORTON: Motion carried. Public hearing is closed.
Southold Town Clerk
SOUTHOLD TOWN BOARD
PUBLIC HEARING
JUNE 18, 2002
10:00 A.M.
ON THE QUESTION OF APPEALING A DECISION OF THE SOUTHOLD TOWN TRUSTEES'
DENIAL OF THE ANGELO & JOSEPHINE PADOVAN APPLICATION TO CONSTRUCT
SINGLE-DWELLING, PARTIALLY ON PILINGS, WITH ON -SITE SEWAGE DISPOSAL
SYSTEM AND PUBLIC WATER. PROPERTY IN QUESTION IS IDENTIFIED BY SCTM#1000-
135-1-23 & 24.1. THIS APPLICATION WAS DENIED UNDER CHAPTER 37 (COASTAL
EROSION HAZARD AREAS) OF THE TOWN CODE.
Actual time that this hearing was commenced was at 10:50 a.m.
TOWN ATTORNEY GREGORY F. YAKABOSKI: I have asked the Town Clerk to tape record the
hearing. The way the process would work is that person making the application has the burden of
proof I believe there is an application that has been made or will be made on behalf of the people in
the audience for some time to retain counsel. I don't know if that is tree or not?
SUPERVISOR JOSHUA Y. HORTON: We will find out at the public hearing.
TOWN ATTORNEY: If that is the case, just so the Board knows my thoughts in the beginning, I
would recommend that the hearing be kept open and the people who just found out about it be given a
short time to get counsel and the heating then be continued at that point. But, quite frankly the burden
of proof will be on the applicant. I feel..., if the board allows me to ask some questions in different
areas. But mostly, it's the applicant's burden to speak and we will sit back and listen and ask
questions.
SUPERVISOR HORTON: I apologize to these people. We ran over 50 minutes on the last item and
they have been waiting. We will begin this public heating as soon as the other two Town Board
members return.
COUNCILMAN THOMAS WICKHAM: I move we open the public heating.
COUNCILMAN CRAIG A. RICHTER: I'll second that.
SUPERVISOR HORTON: All in favor (unanimous), motion carried. The public hearing on the
Trustees' appeal is open. If you care to address the board in regard to this public hearing the way the
microphone is set up you actually have to come and sit with us here at the board table. The floor
microphones are not on.
TOWN ATTORNEY YAKABOSKI: IfI might speak just for a moment, just to set the stage to make
sure we are on the same Imge. We are here today for a hearing under Chaoter 37 Coastal Erosion.
2
would like to hear from Mr. Fitzgerald, what is your argument. The Board reserves the right to
ask a few questions, if it so chooses. It does not have to, they might not ask you any questions
(speaking to Mr. Fitzgerald). The burden, as you know, is on your, the applicant. If you don't mind,
perhaps, I am sure you can do it, laying out overall what has happened to date. In addition, at the
meeting, depending on how circumstances work out, the Board is at least going to, might leave the
hearing open today, depending on what we hear. If they close the hearing, they will reserve decision.
But, most likely they are going to keep the hearing open. The last thing, I would just like to reiterate
what the Town Clerk said, is that when people are going to speak, please sit where Mr. Fitzgerald is
sitting and speak into that microphone because we are trying to make a recording tape of the
proceedings in fairness to all sides.
ALICE J. HUSSIE: What is the physical location of the property?
TOWN ATTORNEY YAKABOSKI: The physical location is, if my memory serves me correct, is on
Soundview Avenue almost at the terminus of where it meets with County Road 48.
MR. JAMES FITZGERALD, PROPER-T-PERMIT SERVICES, REPRESENTING PADOVAN: It's
the third house west of the Town Beach.
UNIDENTIFIED MAN: It's immediately on the beach.
SUPERVISOR HORTON: I ask that just one person speak at a time.
TOWN ATTORNEY YAKABOSKI: And I am sure that the Town Clerk is going to ask for your
name and place of residence.
MR. FITZGERALD: Yes, my name is Jim Fitzgerald of Proper-T-Permit Services, my home number
is 631-734-5800. I represent Mr. & Mrs. Padovan who are here today. I don't ordinarily do this, but
in this case I would like to read something so that I am sure that I get everything in and I don't wander.
What I am about is that I would like to try to convince you that a variance to the provisions of Chapter
37 of the Code could be granted to allow the construction of a dwelling on the Padovan's property on
the Sound shore in Southold without compromising existing shorefront natural features, without
causing significant adverse affects upon the environment, and without putting the proposed dwelling in
harm's way. You have a copy of the application which was made to the Trustees as the administrator
of the coastal erosion hazard area provisions of the Town Code. The Trustees, as you know, stated that
they could not issue a permit under the provisions of Chapter 37 because they found that the proposed
project was located in the "beach area" and/or the "bluff area" and that a development of this sort is not
allowed in either area. There was and still is in my mind, some question of about whether or not the
area could accurately be described as a bluff under the definition either in the dictionary or in the
Chapter 37. It's important, I think, to note, that the denial of the permit by the Trustees was based
solely on the specific prohibitions in the Town Code. They made no statements about any adverse
physical or environmental impact. The code requires that certain criteria be met in order that a request
for a variance be approved. I would like to go over the responses to those criteria that were submitted
together with the application to the Board. The first is A. No reasonable prudent alternative site is
available. The Padovan's don't own any other property, which is not already developed. The
proposed location of the dwelling on the property is the best location from all standpoints. B. All
responsible means and measures for mitigating adverse impacts on natural systems and their functions
and values have been incorporated into the activity's design at the property owners expense. The
design of the proposed structure will be such that the only intrusion into the beach area itself will be
the installation of pilings necessary to support the seaward portion of the structure above the beach
area. The pilings will be about 75 feet landward of the ordinary high water mark; the installation of
3
pilings for other purposes is routinely permitted through out the Town both seaward and landward
of the ordinary high water mark. Further, there will be installed at the toe of the bluff, the seaward
wall of the foundation of the structure, which wall will be not unlike erosion protection structures
which are routinely permitted in the Coastal Erosion Hazard Area. With regard to the upland portion
of the property, during construction adequate measures will be employed to ensure that any disturbed
areas of the surface of the bluff do not result in damaging erosion. Final grading of the property will
be such that run-off will be directed to adequately designed and located catch basins to prevent erosion
resulting from changes in the land surface on the property. C. The development will be reasonably safe
from flood and erosion damage. Based upon the long-term and damage-free survival of several
structures of similar type and sitings to the west, and one structure to the east, of the proposed structure
it can be expected that the proposed structure will be reasonably safe from flood and erosion damage.
D. The variance requested is the minimum necessary to overcome the practical difficulty or hardship
which was the basis for the requested variance. The variance requested is of a "go, no-go" variety and
therefore the variance requested is the minimum necessary to overcome the practical difficulty and
hardship. E. Where public funds are utilized, the public benefits must clearly outweigh the lung-term
adverse effects. This provision is not applicable in the present case. The two criteria which most
directly apply to the main purposes of the Chapter B & C deal with the concept that no harm has come
to the structure and functions of the shoreline and that the potential for harm to the development itself
must be minimized. Fortunately, this is easy to prove. We can look at existing structures in nearby
and/or similar locations and see how they have survived in the surrounding areas. Photo A shows a
little shack that has survived 80 years in its present location, and it happens to be on the site we are
proposing to build a house on. The two pink flagged stakes in the middle foreground mark the
seaward comers of the structure we propose. The Trustees "bluff' is behind the house and their
"beach" is in front of the level area upon which the shack sits. Photo B shows a deck and stairs which
were constructed on the property of the condominiums across Sound View Avenue. The property is
immediately to the west of the Padovan's lot. Photo C shows the same two sets of stairs and the
"undeveloped" area between them. Photo D is of the group of houses, all built "on the bluff' and "on
the beach" immediately west of the structures in Photo C. The "bluff' and the beach are intact
throughout the area, and examination of the Suffolk County Topographic Maps of the Five Eastern
Towns shows the "bluff' and the beach unchanged in size or shape from the time the maps were drawn
from aerial photographs taken in 1974. Photo E is of the fourth house from the left in Photo C. It
shows the construction of the general type that we are proposing for the construction of the Padovan
house; the land ward part of the house will have a foundation, while the seaward part will be on
pilings.
SUPERVISOR HORTON: Those pilings are eight by eight?
MR. FITZGERALD: They are four by fours, in this case.
SUPERVISOR HORTON: ! wonder how deep those are sunk? (All inspected this photo.)
MR. FITZGERALD: The construction of the seaward wall of the foundation will minimize the
possibility of erosion during storm events by the placement of rock armoring, if knowledgeable
agencies deem it appropriate. This is photo F it shows a pretty large house that within the last few
weeks was about to be moved onto pilings on the beach.
COUNCILMAN WICKHAM: In the same general area?
MR. FITZGERALD: No, this is on North Sea Drive, east of Kenny's Beach.
COUNCILMAN ROMANELLI:
that lot?
4
That was a pre- existing house was it not? There was a house on
MR. FITZGERALD: It looks like it. I couldn't see it before it was extracted by the crane. G is
houses on the beach or in the dunes; development is prohibited in both areas, but the structures
obviously have survived well. These houses are on North Sea Drive, east of the house in photo F. H
shows beach houses west of the house in photo F also. Photos I, J, and K show how well our shoreline
survives even major modification by structures in the beach area, while protecting the houses in the
"bluff' area. These houses are east of Town Beach. In Photo K, it appears that the so-called "bluff' is
probably about the same size as the bluff on the Padovan's property. Or at least it was before the
bulkhead was put in. Please understand that the reason for my showing you these photographs is to
support my contention that construction of the sort we propose has not adversely affected the structures
or functions of the shoreline. Structures of exactly the same sort of loeations have not suffered unduly
from erosion or the impact of coastal storms. It is not my intention to set you wondering about how
some of the structures got there, nor do I suggest that we should be permitted because they were
permitted. Rather I suggest that you should be reassured by the fact that, however they got there, they
have survived well and they have not done any harm to the shoreline. However, having said that, it
should be noted that both the Town Code and the NYSDEC regulations recognize that in situations
where surrounding or nearby existing structures do not meet current setback requirements, a proposed
new structure that conforms to an existing average or general setback may be permitted. I have only
talked about the placement of a structure on the property. With regard to the use of the dwelling, roof,
and impervious-surface mn-off will be contained on site, and the septic system will of course be
designed in accordance with the Suffolk County Department of Health Services guidelines and
requirements. During construction, staked hay bales and silt fences will be installed, if necessary to
insure that no foreign matter is washed onto the beach. As I said, these comments have been intended
to show that criteria B. and C. for the granting of a variance are met by this project. Criteria A. D. &
E. are straight forward in the case and they were addressed earlier and in the material submitted to the
Board with the application for the variance. Since all the criteria have been met, I ask that the Board
grant the variance as applied for; that is, to allow the construction of a single family dwelling on the
Padovan's property as identified by SCTM # 1000-135-1-25.1. Thank you. Do you have any
questions?
SUPERVISOR HORTON: I have a question. I was, and it is just a point of clarification. I
misunderstood what you were referring to when you said "survived well". Were you talking about the
homes survived well?
MR. FITZGERALD: Yes.
SUPERVISOR HORTON: And was that a concern of the Trustees? That the homes would not
survive? Or were they referring to the hardening of the shoreline? Or potential thereof?.
MR. FITZGERALD: Well, no. Their concern is Chapter 37. They are concerned first of all that we
don't harm the shoreline, and second of all that we don't, in our collective enthusiasm, build houses in
places like Westhampton Beach where they are going to disappear in the next hurricane or the next
coastal storm.
TOWN ATTORNEY YAKABOSKI: IfI may? Mr. Fitzgerald, is there a DEC permit in place.
MR. FITZGERALD: No.
TOWN ATTORNEY: Has there been al~l~lieation to the DEC?
5
MR. FRITZGERALD: No.
TOWN ATTORNEY: Is there a Suffolk County Health Department permit in place?
MR. FITZGERALD: No, the permit is not in place. It has been applied for.
TOWN ATTORNEY: What is the status?
MR. FITZGERALD: The status is that they are waiting for our response to their concerns about the
swale in the area. They are concerned about swaying and that it would require what they refer to as a
"test hole".
TOWN ATTORNEY: Have you responded to that?
MR. FITZGERALD: No.
TOWN ATTORNEY: I looked briefly at the survey. Is there any room to move any of the house or
septic system further toward's the road?
MR. FITZGERALD: Yes, there is room. What we tried to do is strike a balance towards the zoning
required setback and this situation. Some of the house is going to have to be over the area of concern.
TOWN ATTORNEY: Was there any report, or have you heard anything about, or have you submitted
anything with the Health Department with respect to soil erosion? Or have you heard of or seen a soil
conservation report from them?
lvlR. FITZGERALD: No.
TOWN ATTORNEY: Also, would it be possible to have a copy of your prepared statement.
MR. FITZGERALD: Sure.
TOWN ATTORNEY: Just as a back-up to our jury rigged taping system here. One last thing, quickly.
The Trustees have, I believe, concurring jurisdiction here, one with Chapter 37 and two with Chapter
97 or actually with wetlands. I know from the statement that you stated that the Trustees...just for
clarification purposes, so it is on the record, I also represent the Trustees. I have never dealt with this
particular application to date. The Trustees never asked me anything with respect to it. In your belief,
if this Board granted a variance to put a home on this property would you then go back to the Trustees
under Chapter 97?
MR. FITZGERALD: I would certainly determine whether or not they required it because it never
came up in the discussion.
TOWN ATTORNEY: That's the reason I was raising it.
MR. FITZGERALD: But, sure.
SUPERVISOR HORTON: There is a gentleman here that would like to speak on this.
6
PETER VEKIARELLIS: My name is Peter Vekiarellis and I own one unit at North Fork
Condominiums.
SUPERVISOR HORTON: We need your residence. Is that your residence?
MR. VEKIARELLIS: No, I live in Bayside, Queens. I just found out about this yesterday at 3:00 p.m.
I had a brief discussion with Mr. Padovan on Sunday and he in fact did tell me that everything was a
go and that he would be building. I found that very hard to believe that we were not notified or told
anything about what was going on. So on Monday, I contacted my attorney, condominium attorney
and he asked me to find out if a variance was granted and if a meeting was held, what type of notice
was given and who represented the property owner. So, I called the Town of Southold and they said
that they in fact did not grant any permits. We have 42 unit owners that strongly oppose the building
on this property. An owner to the right of Mr. Padovan also strongly opposes this. We respectfully
request to be given the opportunity to hire an attorney, as Mr. Padovan has been given the opportunity
and to see if we could also hire engineers to see what this would do to our property. We also feel that
it might bring down the value of the units on our property, if be built there. But, most importantly we
are concemed about the environment, what this would actually do to the environment. So, if the Town
was to allow, the Town Trustees was the board that I believe denied this application, if you are going
to re-consider and grant this, we ask that we be given the opportunity to him an attorney and see what
we could do about it. Mr. Padovan does in fact own a home. Mr. Fitzgerald, I believe said that he
doesn't own a house. But he has been our neighbor for years and we have always been told that it was
in fact his house, and on several occasions he has rented it out on the bottom, which is fine. But, I
don't know how they can say that it is not his house. I don't know if it has been transferred over to one
of his children or what not. But, it is a beautiful home. God Bless. We are all happy that he has the
house. He is a good neighbor. But, we have 43 unit owners that really object to the building of this
structure, taking down a shed and putting up a house right on the beach. It didn't sit well, we had a
general meeting on the 9th of this month and people were very upset. They were really really
concerned on what this would do to the environment.
COUNCILMAN ROMANELLI: Do any of the unit owners use that beach? The beach where this
piece of property is owned by Mr. Padovan?
MR. VEKIARELLES: No, what we do is we have a deck and we go down our deck and our beach is
right there. Right in front of our own property.
TOWN ATTORNEY: I just have another question of Mr. Fitzgerald. Mr. Fitzgerald, with respect to
the Suffolk County Health Department, is your client moving forward to address the concern? I know
you said that they have not yet addressed the concerns raised by the Suffolk County Health
Department. But, is your client moving forward in the process of addressing those concems? Or is it
on hold for the moment?
MR. FITZGERALD: Right now, nothing is being done because it is a matter of which comes first?
TOWN ATTORNEY: The chicken or the egg?
MR. FITZGERALD: We certainly don't want to put a lot of effort into anything and then find out that
it isn't being accepted.
TOWN ATTORNEY: Obviously, I haven't spoke to the Board, it just came up. But, one of the
criteria of the natural systems which would be the natural environment system. You mentioned that
the health department talked about the possible concern of clay in the area. What would be, do you
7
have anything you could submit to this board as part of your presentation, or even within a few
days to submit, that this board would be able to address or come to grips of how clay would impact the
sewage?
MR. FITZGERALD: What is normally done in a case like that is what is indicated is that they require
a so called "test hole". Which means simply that you dig the hole you want to put the cesspool in and
you dig until you get to suitable soil. I have seen thirty feet deep, when you get there you have to have
sufficient sand on the site. Not beach sand, but regular sand. You show it to a representative of the
health department and he says "that's fine" and you fill the hole in with the sand. So that now you
have that area that can reach the material. If worse comes to worse, we are willing to put in a holding
tank which does not leach, but simply collects the waste and then is pumped out at regular intervals.
That's what's been done with some regularity.
SUPERVISOR HORTON: This is a public hearing and I think that we have to afford the opportunity
to the public to address the board in regard to this project. I appreciate your questions, Greg, but is
there anything further you would like to address the board on with regard to this?
MR. FITZGERALD: No. I would be interested in only in knowing what the environmental concern is
of the condominium owners?
SUPERVISOR HORTON: That's a format that you can take up with the condominium owners. Are
there any other members or anyone else in the audience that would care to address the board in regard
to this Trustee appeal?
MR. VEKIARELLES: There is a gentleman here who has multiple units ....
SUPERVISOR HORTON: He can speak for himself. Why don't you come forward, if you would like
to address the board?
NICHOLAS MINTZES: My name is Nicholas Mintzes, I am from Tenafly, New Jersey. I just found
out about this late last night and I came over. I didn't really know all too much about it, but I came
here to find out and I am concerned about some of the environmental issues. It seems what we have
been told, from aerial views taken from 1974 comparing to topographic maps, which would be the
most accurate thing to show what kind of erosion has taken place. Aesthetically, I think that a house in
that area would not fit in because the only other buildings in the area are like the deck that we have
built. But, the purpose for that is for people to be able to access the beach. Those are my words, for
IIOW.
UNIDENTIFIED MAN: We have not been able to get an engineer to look at the place yet.
SUPERVISOR HORTON: Sir, there is a format for a public hearing. So, If you would care to address
the board?
NICK DEMAKIS: Yes. My name is Nick Demalds, I reside at Bayside, New York. I am the owner
of the condominium with two other owners. Of course, we are very concerned about the project where
the neighbor intends to put a, mostly for the environmental and others. And of course, we please ask to
help to hire a lawyer and represent us.
SUPERVISOR HORTON: All right. Are there any other members from the general public that care
to address the Town Board?
8
(There was no response.)
SUPERVISOR HORTON: I think what I move to do is keep this public hearing open for the
information to be gathered. Is that advisable by counsel?
TOWN ATTORNEY: I would also recommend along that line. It would be appropriate to allow them
to voice their desires. If you could keep it open perhaps until a future date, not the next meeting, but
the meeting following that which would be roughly thirty days. At that point, that would afford any
folks who want to an opportunity to retain counsel and look at the file and put anything that they want
to put into the record as to this administrative appeal.
SUPERVISOR HORTON: Is that acceptable to the board? I am comfortable with that. We will
leave the public open. Yes, sir. Go ahead.
MR. FITZGERALD: Just one last point, if I may. A number of comments have indicated that there
was no notice given. The notice was published in the newspaper by the Town Clerk. Chapter 58 of
the Town Code requires that adjoining property owners be notified if the code specified that there will
be a public hearing in the section on variance in Chapter 37 there is no public hearing requirement
indicated. That is why I did not notify any of the adjacent property owners.
SUPERVISOR HORTON: It sounds like according to the Town Board motion to leave the heating
open, that there will be ample time for both parties to be fairly represented. I thank you all for taking
the time to come out here.
TOWN ATTORNEY: Betty, what will be the date to reconvene this heating?
TOWN CLERK NEVILLE: July 16, 2002 at 10:00 a.m.
SUPERVISOR HORTON: It will be published in the newspaper and you can call the Town Clerk's
Office for that information.
This hearing was recessed at 11:35 a.m. and left open to be reconvened on July 16, 2002 at 10:00 a.m.
Respectfully submitted,
Southold Town Clerk
TOWN BOARD OF THE TOWN OF SOUTHOLD ACTING AS
THE COASTAL EROSION HAZARD BOARD OF REVIEW
APPLICATION OF ANGELO PADOVAN
FOR A VARIANCE TO OBTAIN A COASTAL EROSION MANAGEMENT PERMIT
TO: SUPERVISOR JOSHUAY. HORTON AND THE MEMBERS
OF THE TOWN BOARD OF THE TOWN OF SOUTHOLD
MEMORANDUM OF LAW
IN OPPOSITION TO APPLICATION
FOR A VARIANCE TO OBTAIN A
COASTAL EROSION MANAGEMENT PERMIT
This memorandum of law is being submitted by the undersigned to this Board on July 16,
2002 in opposition to the application of Angelo Padovan for a variance to obtain a Coastal
Erosion Management Permit. I am submifling this MEMORANDUM OF LAW as part of my
appearance on July 16, 2002 before the Town Board of the Town of Southold on behalf of my
clients, who are 42 adjacent property owners who own real properly at North Fork Beach
Condominiums Association. This application should be denied by the Town Board of the Town
of Southold in it's entirety because the applicants fail to establish a legal basis upon which
variance relief should be granted.
NATURE OF THE CASE
This is an application for variance relief from the setback requirements contained in
Chapter 37, COASTAL EROSION HAZARD AREAS, Town Code of the Town of Southold, on
beach front properly owned by the applicant. The applicant appeals a decision of the Southold
Town Board of Trustees dated February 27, 2002 which decision denied the requested relief
pursuant to Chapter 37, the issuance of a Coastal Erosion Management Permit, in it's entirety.
The applicant seeks to build a two story single family dwelling on wooded beach and water front
real property, partially on pilings, with on site sewage disposal system and public water, which
is within the Coastal Erosion Hazard Area.
As a malCer of law, in order for this Board, which is acting as The Coastal Erosion Hazard
Board of Review, to grant the requested relief, this Board must determine, as a matter of law, that
the applicant has satisfied the standards of a variance. The standard of review to be considered
by this Board is enunciated in Southold Town Code §37-30, variances from standards and
restrictions which is part of Chapter 37, Coastal Erosion Hazard Areas, and in addition or in the
alternative, the general area variance standards applicable pursuant to New York State Town
Law §267-b(3)(b) should be considered.
STATEMENT OF FACTS
The applicant, Angelo Padovan, is the owner of real property currently improved with a
dwelling and located at 22455 Soundview Avenue, Southold, New York, Town of Southold,
SCTM #1000-135-1 -Lots 23 & 24.1. The total acreage of the subject property, according to
the surveyor for the applicant, Anthony W. Lewandowski, by a survey prepared on November 22,
1999 and revised on July 27, 2000 and May 23, 2001, is 18,380 square feet.
The applicant appeals a decision of the Southold Town Board of Trustees dated February
27, 2002 which denied the requested relief in it's entirety, and specifically declined to issue a
Coastal Erosion Management Permit pursuant to Chapter 37 of the Town Code of the Town of
Southold, Coastal Erosion Hazard Areas. The applicant seeks to build a two story single family
dwelling on beach and waterfront real property, partially on pilings, with on site sewage disposal
system and public water, which is within the Coastal Erosion Hazard Area.
On December 18, 2001, the applicant, Angelo Padovan, applied for approval pursuant
to Chapter 37, Coastal Erosion Hazard Areas, and Chapter 97, Wet[ands, to construct a two
story single family dwelling on beach and water front real property, partially on pilings, with on
site sewage disposal system and public water, from the Board of Trustees of the Town of
Southold. Subsequently, the Southold Town Conservation Advisory Council, which issues
advisory opinions to the Board of Trustees of the Town of Southold, in an undated resolution
UNANIMOUSLY adopted a resolution recommending that the Board of Trustees of the Town of
Southold disapprove the requested relief pursuant to Chapter 97, Wetlands, on the grounds
that: 1 ) The applicant should provide the details of grade stabilization; 2) The proposed structure
would have a negative impact to the existing road area; 3) There is a concern with the proposed
septic design; 4) The project is within the Coastal Erosion Hazard Area; and 5) If the Town of
Southold is in the business of approving houses being built within the wetlands boundary, the
Town needs to establish guidelines to address houses being built on the beach.
On February 27, 2002, The Board of Trustees of the Town of Southold disapproved the
relief requested by the applicant, the issuance of a Coastal Erosion Management Permit, on the
ground that, after reviewing Chapter 37 (Coastal Erosion Hazard Areas) of the Town Code,
determined that the Code does not allow for the activities proposed to occur within that area.
The disapproval of the Board of Trustees of the Town of Southold did not address applicant's
request for relief pursuant to Chapter 97(Wetlands) of the Town Code.
The applicant subsequently appealed the decision of the Board of Trustees of the Town
of Southold to the Town Board of the Town of Southold which also acts as The Coastal Erosion
Hazard Board of Review. The objectants were not aware of, nor were they notified of, the
pending application before the Town of Southold until literally one day before the first public
hearing date before the Southold Town Board in connection with the applicant's appeal of the
decision of the Board of Trustees of the Town of Southold. This is why, even thouqh the Board
of Trustees of the Town of Southold had nevertheless denied the relief requested by the
applicants, the objectants had not previously made any appearances in connection with this
matter.
ARGUMENT
The Town Board of the Town of Southold acting as The Coastal Erosion Hazard Board
of Review, as a matter of law, must deny the applicant's request for a variance for the reasons
that follow:
a) CHAPTER 37 OF THE SOUTHOLD TOWN CODE
The applicant seeks variance relief from this Board to build on a small, wooded beach
and waterfront parcel located within the Coastal Erosion Hazard Area where a dwelling currently
exists. On October 8, 1991 this Board adopted Chapter 37 of the Town Code of the Town of
Southold, Coastal Erosion Hazard Areas. By adopting this legislation, this Board in effect only
allows construction within the Coastal Erosion Hazard Areas of the Town of Southold if this
Board, in appealing a denial by the Board of Trustees of the Town of Southold, grants variance
relief to build within the Coastal Erosion Hazard Area. In addition, this Board included
standards of review in Southold Town Code §37~30. However, it is unclear to me whether the
standards of §37-30, orthe general standards for area variances mandated by New York State
Town Law §267-b(3)(b), are applicable in this case, thus I have analyzed the facts of this case
based on both sets of standards. Case law in New York State, however, clearly stands for the
proposition that financial loss in itself is insufficient to compel the granting of variance relief, and
"if hardship imposed upon property owner as result of area standard restrictions may be deemed
to be self-created or self-imposed, then showing of financial hardship itself does not entitle owner
to variance..." National Merritt~ Inc., v. Weist, 41 N.Y.2d 438, 393 N.Y.S.2d 379 at 383 (Ct
of App. 1977). Also see Crossroads Recreation, Inc. v. Frank P. Broz et al., 4 N.Y.2d 39, 172
N.Y.S.2d 129 (Ct of App. 1958).
The findings contained in Southold Town Code §37-5 (A) state the following: "The Town
of Southold finds that the coastal erosion hazard area A. Is prone to erosion from the action of
the Long Island Sound, Gardiners Bay, Long Beach Bay and Orient Harbor. Such erosion may
be caused by the action of waves, currents running along the shore and wind-driven water and
ice. Such areas are also prone to erosion caused by the wind, runoff of rainwater along the
surface of the land or groundwater seepage, as well as by human activities such as construction,
navigation and certain forms of recreation.
t have conducted my own site inspection of the subject property. There is significant
vegetation which serves to strengthen the fragile beach front surrounding the subject property,
much of which would be destroyed or at a minimum weakened by the proposed construction.
[n addition, the location is directly adjacent to Sound View Avenue, which road follows the beach
at this point and which road would be bare and unprotected should the proposed construction
take place. The views of the water by my clients, the 4~ members of the North Fork Beach
Condominium's Association, which is located directly across the street from the subject property
on Sound View Avenue, would be eliminated by the construction as proposed. While the North
Fork Beach Condominium's Association owns a deck from Sound View Avenue to the beach
below, repairs have to be made at least annually due to damage to the deck as a direct result
of severe erosion and inclement weather conditions which are naturally occurring at a site directly
adjacent to where the applicant proposes to build a two stor~ residence.
This Board should additionally consider the effect of precedent in granting the relief
requested by the applicant. If it truly is the intention of the Town Board of the Town of Southold
to restrict development in the Coastal Erosion Hazard Areas as outlined in Chapter 37 of the
Southold Town Code, any decision by this Board granting variance relief to a particular applicant
can be used by future applicants based on such a determination becoming "precedent" for future
cases. Thus, if the Town Board grants the relief requested by the applicant, in the future other
applicants may be entitled to such relief as a matter of law, thus in effect this Board would in
effect be either weakening or rendering entirely meaningless Chapter 37 of the Southold Town
Code, Coastal Erosion Hazard Areas by granting the relief requested by the applicant. Does this
Board want to place itself in such a position in the future?
b) ANALYSIS OF THE APPLICABLE VARIANCE STANDARD (S)
In this section of my Memorandum of Law, I will discuss the two variance standards,
Southold Town Code §37-30, and New York State Town Law §267-b(3)(b). It is my position
and that of my clients that if this application is analyzed using either the standards contained in
Southold Town Code §37-30 or the area variance standard enunciated in New York State Town
Law §267-b(3)(b), as a matter of law, this Board must deny the variance request of the applicant.
1 ) ANALYSIS OF THE VARIANCE STANDARDS CONTAINED IN
§37-30 OF THE SOUTHOLD TOWN CODE
In considering the application as presented, according to Southold Town Code Chapter
37, Coastal Erosion Hazard Areas, this Board must analyze the facts presented pursuant to
Southold Town Code §37-30. Variances from standards and restrictions, which states the
following:
Strict Application of the standards and restrictions of this chapter may cause practical difficul'n/
or unnecessary hardship. When this can be shown, such standards and restrictions may be
varied or modified, provided that the following criteria are met:
No reasonable, prudent, alternative site is available.
All responsible means and measures to mitigate adverse impacts on natural systems and
their functions and values have been incorporated into the activity's design at the property
owner's expense.
C~ The development will be reasonably safe from flood and erosion damage.
The variance requested is the minimum necessary to overcome the ~ractical difficulty or
hardship which was the basis for the requested variance.
E. Where public funds are utilized, the public benefits must clead¥ outweigh the long term
adverse effects.
In applying Southold Town Code §37-30 (A) to the subject property, plenty of reasonable,
prudent alternative sites are available in the Town of Southold. This site is simply an
inappropriate site upon which to build what the applicant seeks to construct, a large two story
dwelling on pilings. There is land available elsewhere in the Town of Southold where such a
structure could be built without causing permanent, irreparable damage to the fragile beach
front of the surrounding area. In addition, due to the existing structure at the site, the applicant
already has use of the subject property. The subject property is simply too small for a large, two
story structure as proposed by the applicant, and the coastal erosion issues at the subject
property endanger the surrounding properties by it's development as proposed by the applicant.
There is no conforming location on the subject property upon which to build the structure
proposed by the applicant without requiring variance relief, and without resulting in endangering
severe coastal erosion for the subject properly and surrounding properties.
In applying Southold Town Code §37-30 (B) to the subject property, All responsible
means and measures to mitigate adverse impacts on natural systems and their functions and
values have NOT been incorporated into the activity's design at the properly owner's expense.
Indeed, the applicant has failed to show mitigation of adverse impacts in any way. Instead, what
the applicant is proposing to build will simply result in the destruction of natural systems and their
functions. The survey submitted by the applicant in connection with this application shows what
is certain to be the virtual destruction of the vegetation on the subject property which will result
in the removal of the natural vegetation which keeps the existing beach front intact. It will be
replaced by a massive two story structure on pilings that, along with the land, will thereafter lie
bare and will have to withstand the relentless pressures of weather patterns and coastal erosion
indefinitely in the future.
In applying Southold Town Code §37-30 (C) to the subject property, the development
will NOT be reasonably safe from flood and erosion damage. Indeed, the reason Chapter 37
of the Southold Town Code was enacted was to discourage construction in Coastal Erosion
Hazard Areas. The construction as proposed will be subject to future damage, with all of it's
associated destruction. The subject property is directly on the beach, and is subject to both flood
and erosion damage. Indeed, upon a site inspection of the properS, I concluded that a WORSE
site does not exist within the Town of Southold when considering flood and erosion damage
issues. The construction proposed by the applicant is simply a disaster waiting to happen, and
is contrary to both the spirit and intent of Chapter 37 of the Southold Town Code.
In applying Southold Town Code §37-30 (D) to the subject property, the variance
requested is the not the minimum necessary to overcome the practical difficulty or hardship which
was the basis for the requested variance. Instead, it is precisely the opposite, a two story
residence on pilings which includes large a deck on an extremely small parcel. The structure as
proposed is far from the minimum necessary, indeed it is simply overkill, especially considering
the small size of the subject parcel and the fragile location where it is proposed directly within
the Coastal Erosion Hazard Area.
In applying Southold Town Code §37-30 (E) to the subject properly, where public
funds are utilized, the public benefits must clearly outweigh the long term adverse effects, since
this is private property and I am not aware that any public funds are involved in the proposed
construction by the applicant, I do not believe this section applies to the analysis.
Based on the analysis above, considering all aspects of the application, this Board should
affirm the decision of the Board of Trustees of the Town of Southold and deny the relief requested
by the applicant in it's entirety, thus denying the applicant's request for a Coastal Erosion
Management Permit.
2) ANALYSIS OF THE AREA VARIANCE STANDARD
To successfully establish the right of an applicant to an area variance, an applicant must
establish that the denial of the variance would cause practical difficulties and that he could not
utilize his property without coming into conflict with restrictions in a zoning ordinance, Fuhst v.
Foley, 45 NY2d 441,410 NYS2d 56, 382 NE2d 756 (Ct. of App 1978), see also Thompson
v. Curcio, 154 AD2d 602, 546 NYS2d 430 (2nd Dept 1989) and Townwide Properties, Inc. v.
Zoning Bd of Appeals, 143 AD2d 757, 533 NYS2d 466 (2nd Dept. 1988). Economic injury is
irrelevant to this analysis (Shaughessy v. Roth, 204 A.D.2d 333, 611 N.Y.S.2d 281 (2nd Dept
1994). See also Munnelly v. Town of East Hampton, 173 AD2d 472,570 NYS2d 93 (2nd Dept
1991 ). There is a five part test that must be applied to this application for this Board to grant
an area variance to the applicant.
The factors to be considered by this Board in considering an application for an area
variance are: 1) 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 area
variance; 2) whether the benefit sought by the applicants can be achieved by some method,
feasible for the applicants to pursue, other than an area variance; 3) whether the requested area
~L0
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, but shall not necessarily preclude the granting of the area variance (Town Law §267-
b(3)(b).
1) Will an undesirable change be produced in the character of the neighborhood or a
detriment to nearby properties will be created by the granting of the area variance? Yes. The
proposed two story structure of the applicant will produce an undesirable change in the character
of the neighborhood and a detriment to nearby properties by the granting of the area variance.
The views of my clients at North Fork Beach Condominiums will be permanently lost, and the
other neighboring property owners along the beach front will be negatively impacted by the
erection of such a large, imposing structure along the beach. In addition, the aesthetic beauty
of the area will be forever changed by such a large two story residence on pilings being built
since the proposed residence is so completely out of character with the surrounding residential
community.
2) Will the benefit sought by the applicants be achieved by some method, feasible for the
applicants to pursue, other than an area variance? Yes. The applicant could purchase a suitable
parcel of real property upon which to build such a large structure. Because the subject properly
already has an existing residence, the applicant has the ability to use this property. What the
applicant proposes simply cannot be supported at the subject property, based on both the size
and location of the parcel.
3} Will the requested area variance be substantial? Yes, considering that the subject proper~
is extremely small, and since the proposed residence is a two stow dwelling on pilings, the new
structure as proposed is entirely inconsistent with the existing residences in the surrounding area.
Especially when considering the small size of the parcel, that the structure will literally be built on
the beach, and that it will be two stories high on pilings within the Coastal Erosion Hazard Area,
there is not doubt that the relief request is substantial in nature.
4) Will the proposed variance have an adverse effect or impact on the physical or environmental
conditions in the neighborhood or district? Yes. Both the physical and environmental
consequences of the proposed construction will be permanent and devastating to the area. The
physical structure will loom overhead, blocking the water views of the surrounding residents
permanently. The environmental harm consists of removal of vegetation as part of the proposed
construction which will endanger the adjacent properties, the fragile beach front, as well as
Sound View Avenue itself. Building such a large structure along the beach will leave the entire
area vulnerable to future coastal erosion, which is precisely why the Town Board of the Town of
Southold, in it's wisdom, enacted Chapter 37 of the Southold Town Code in the first place.
5) Will the alleged difficulty be self-created, which consideration shall be relevant to the
decision of the Board, but shall not necessarily preclude the granting of the area variance? Yes.
Without a shadow of a doubt, the applicants have self created the need to pursue variance relief
due to their voluntary decision to submit this application and roll the dice on whether this Board
will grant variance relief by the issuance of a Coastal Erosion Management Permit to build an
oversized two story residence with a deck on pilings at a parcel within the coastal erosion hazard
area when instead they could pursue purchasing a parcel of vacant land which is large enough
and in an appropriate location to allow for construction of the larger home they seek to build.
In addition, the applicant already has an existing structure at the subject properly, thus the
applicant has the use of his property already.
For further analysis of the area variance standard as analyzed by the Courts specifically
regarding requests for area variances which include setbacks, I would respectfully refer this Board
and it's a~torney to Wilson v. Town of Mohawk, 246 AD2d 762, 668 NYS2d 62 (Third Dept.
1998). Based on analysis above as well as the previous analysis based on Southold Town Code
§37-30, considering all aspects of the application, this Board should affirm the decision of the
Board of Trustees of the Town of Southold and deny the relief requested by the applicant in it's
entire~y, thus denying the applicant's request for a Coastal Erosion Management Permit.
C. THE STATE ENVIRONMENTAL QUALITY REVIEW ACT
The State Environmental Quality Review Act, or SEQR, is the environmental review
process that this Board must follow in considering the environmental consequences of the
variance relief requested. Chapter 44 of the Southold Town Code, entitled Environmental
Quality Review, outlines the general rules to be applied to this or any application before this
Board. 6 NYCRR §617, however, which is referenced in Chapter 44, includes the criteria for
classification of the relief requested as Type 1, Type 2, or Unlisted. Based on the Classification,
this Board as lead agency determines the extent of environmental review to be applied to this
application.
While it appears that this action might be classified as Type 2 based on 6 NYCRR §617.5
(12) (a copy, from 6 NYCRR §617.1 through §617.11 of which is attached to this Memorandum
of Law) based on this application being based on the granting of individual setback and lot line
variances, because the setbacks involve variance relief from the Coastal Erosion Hazard Areas
specifically desiqnated as sensitive environmental areas, I believe this Board should properly
determine this action to be unlisted. Based on the foregoing, I believe the application should
be required to submit a Ionc~ form EAF and an Environmental Impact Statement. Should this
Board choose to instead classify this action as Type 2 based on 6 NYCRR §617.5(12), this
determination may be reversible error in an,/Article 78 challenge to the actions taken by this
Board.
D. FEMA COMPLIANCE
While FEMA compliance may not be part of the formal review process, I believe it is
important to address this issue because, unless the structure as proposed by the applicant is
FEMA compliant, the relief requested by the applicant should not be approved by this Board.
Whether the height of the structure as proposed, the dimensions, the proximity to the water, and
the design satisfies FEMA regulations is an issue that should be addressed as part of the review
process of this Board.
CONCLUSION
On behalf of my clients, the 42 members of The North Fork Beach Condominium's
Association, I respectfully request, based on the foregoing, that the applicant be required to
prepare a long form EAF and an Environmental Impact Statement in connection with this
application, and that the variance relief requested by applicant Angelo Padovan to obtain a
Coastal Erosion Management Permit be denied in it's entirety by this Board, and for such other
and further relief as this Board deems just and proper.
m. itted ~
Attorney for Objectants
The North Fork Beach Condominium
Association
P.O. Box 155
120 Court Street
Riverhead, N.Y. 11901
(631) 727-4200
~CHA~TF~ V1 GENER^L R[~GULATIONS §617.1
PAR']' 617
S'I'ATI': ENVII{OI',;MENTtlL OI..:ALI'W',~ REVIEW
§617,1; Authority, inlen[ and p t~rl,oae.
(a} Ti'fisPariJs',aloplcdpursu~ml. to~'ctioi~s3 3301(Il(hi ~2:,{~l')andS-0kl3t~lthcl~nvimn
Review ~ct {SEQR).
(b) In adopting SEQR, i.t w~ I~e Lcgislatcrc :~ mtcmilm ~hat ;Lll ;~gcnciea ctmduct fl~cir alfairs
generations.
(c) ~e basic purpose 0f SEQR is [o incorpor.ite Lhc i Cll~ii~l:la:lillll O[ envho:mmntal lilcto~
(d) 1{ was ~c intent[on of thc l..el~islaL[m :hal iht: prt,tCt'tid)Ii and cHn;u~ccmcnt ,,f thc
of SEQ~by all s~' and local agent:ica. It mctu lc ~:
§ 617.1
(]) procc~
(2) provision.s for cm~rdi~,lting multiph.: agency cnvimr;mc,t~:ll c,,~ci~s throt.gh ,~ single
lead agency (~cfion 6 7 6
617.20 of this ~); and
{b) Actiom include:
(ii) invo ye funding by an agcncy;{ r
(4) ~y combi~tions
(e) Approval ~cans a discrefion~ d~ci~ion by an agency rt~ t~sat~ a )c~mt ccn,lica~c,
/
tmp~ will result
§ 617.2
proposed
is also an "involved agency".
§ 617.2
sections 617.7 arid 617.12 ol this
(aO Scoping means the process by which Om Icad ~'~ c) i kmu Lc h p~ Chi a y ~figmhcan[
617.14 of ~is P~. The facl that a~l action ? idcnLll~ctl as a Typc [I ;~ctio:~ in an) a3cncy's
not identil~ing it i s a Ty~ 11 actkni in its
agency's own SE( R prt~edurcs.
§ 617.3
§ 617.3 [Genera~ ruhs,
exception ~ this is pr~vidcd Under seefi(m 617.51c)[ lb), (21) and (2[ i of this l'~r[ ~n invdlved
final ElS h~s ~en filed. 'l~c ~nly cxcc~on ltl this is provided un.icr ~ccl~on 617.9~)(5)(i) ol this
(b) SE~R docs n(~l cb~utge thc existing j~Jru.dict~on t)l ~.~mc ~ ~ ~1 )' thc junsd~t:~o ~ between
or ~ong ~m and local ag¢~ics. S~QR pn3vid;:, ~m illV(llscd ;~c~lcSes ~th Lhe ;mtho;ily,
following ibc filing of a fin;fl E S ~d w 'i en J]ndmlgs s~ ~];lc~t[. oc [~t~su;tnt t~s set:illin 617.7kd)
EIS. ~
jufisdictio~g
whole or t~] only a p~t ol' il.
all SEQR proceedings j~ c nte'e~s o prompt ~vit,*'
§ 617.4 'l~pe ! acti.n~.
(a) ThcpurposeofthclistoFTy~elactionsinLhi~see[ :~ s~ de~t~ ~ hna~,:t~cs p ~j
sponsors ~d the publid, those actions and projects that ~e J:lorc likely m [cqah',: ~l;c prcpa: ution
of ~ ElS lh~ Unlisted actions. All ageacqes are $ubje. cl to ~hi~i Type l
(1) ~ia Ty~ 1 list is not exhauslive of those aclions that aa agency tlclcr[ili31c~ nmy
require ~ ElS. For ~1 in~vidu~ acfiohs which:~uc T)pc I o- thlli~.t,2d, thc dt'tui;llinakion
(2) Agencies may adopt ~cir o~h lism o( additi{mut l'y[x~ I ach<ms, may adjas~
designate as q'y~ I ;~y ~fion identiM:d as TyiaYI~ m sfli:liui1 ~1 7.5 t~[ Ibis l'it~'l"
by an agency: ' '
tl) thc ~op~onlof a municipality's land usx: phin, Iht ado[~l~c,~ ~2~ ;~l'v ageney
trot'es of Ired by a sU~ t r ~a agct cy
~5) consffucfion ~f new residential ~nits that ~:c[ t~r cxt ccd tim Io11~ mg Ih~csholds
I
(iii) in a city town or viDage hvjng a i~pulation of less th~:~ [5{},1J~3~ 250 unils to hc
~ sewerage systems igcluding sewage treatment w0~ s;
§ 617.5
percent of any of 'die l~31iowing thn~hold,s:
gallons per day;
(iii) parking for 1;000 vehicle:s;
(ii) in a city, town or village l. laving a pt,pul:aion t,I 15D,LliX} person:, or less. a facility
withimore than tO0,O00 square I'~,tA of gross it<mr area;
(~) in a city, tow[[ tlr village ~t¥ing it po0ulatmn ~l' m~.rc t[,r~n 150.LKJ0 txa ~ons, a ta.:itxty
with morc than 240.000 squa]'c lCel. of gross fla4~r
(7) [ any strucLurc excfieding 100 Ii:c[ ~,ovc t,rigia[t/ gtmnd ]~ v,2l in a [t)ca~.it~, without any
zoning[regniation pcnaini;ng to height.;
section;
(9) I any Uniiated act[on (unlesa the actic, n is dr:signed tm Li~C prcscrvatioa ot tlie facility or
§ 617.5 Type 11 aetil, aal~.
agencies.
Po) [Each agency n:u~y adopt il[~ ~:IWll lilt (ff Tyl~ H act,on~- to supplcaXe:l;t thc actlolls in
aubdivi~,ion (c) ns'this section. No ag,.'t!.cy is boa ad b~ a:~ acd, ~, i,ia ianothcr a.c.,ency's Type Il list.
contained in seqtion 617.7~c) ot mis Pax't; a~td
(2) not be~Typel~tmna~.~<fincdinsc,.:~o,~ ~ {,, ~h,~H;q
(c) The ibllo~ing actions ~e :m~ subjcc~ tO ~::,'km ,,,~ ~ :~i~ ~:;~ :~
facility; [ ' '
p~ciples of f~fing;
(4) repa~ng of existing highways not inv~flving Ok~ addil.in~ o~ nc~ Iron,el
existing utility facilities;
(6) ~inten~ce of existing laad~aping~r nmmd ~p.w ~;
(8) murine amivifies of educafion~ institnfions, iachtding expan~k,n o,~ e~isfing I~ilities
related to such closings;
on ~ approved lot including provision of necessary unlly c:om~ccfio:ls a* provklcd in para-
l~ph (11) of ~i$ su~ivision lind Ihe installm, km, Iq~idtl:~aal~ce ~g~Uol .pgn~de of ~ dnnking
(11) e~ension of utility dislribufion facililic~, mchading $,,~1,: ,rte;ut
any <fion on ~ list;
(12) ~ng of in~vidual sotek ~d lot line
" 13 n in '
. ( ) ~ gio ~ ~ea vmaoce(s) for a ~mgle family: two-lamil3
(14) publico~pdvlae~stlbrestmanagemt:nt(silvicuJtara, prtc~<c~ofl less~ ~0acrcs
of l~d. bm not i~luding w~s~ dis~s~, l~td cle~ng m~ directly icl;llcd'lo
men~ cle~-cutfing or t~ applicati,an uf herbicides nr [:esdt:idc~;
(16) ins~lafi0n of ~dfic conca)[ devils ot~ e~isting ~lrec s, Is a ~ I~ighwa)s
strip patmms;
(18) mfo~pn collection inctu~ng b~e ~ta coIIcclion and re scmch, aatcr quarily and
soils stu~es ~at do not commit Ihe agency to undertake, fund o~ ap~,ruve ~y Ty!~ I or
U~ist~ action;
CHAFrEP. VI GENERAI,Rt-~GUL^TIONS § 617.5
(22~ coll~tive b;trpfdn~ng acti~il~es;
ing cx~sting debt;
(24)~ inspections ~d licensing achvitie~ relating m thc qt~alilicalion~ of md~v~du~d$~ or
(~5)~ pumha~ or sal,: o f fumislfings, ~ni;,,.~ent y~ ~,~pphcs, i,,,tuding ~ ~,h~s government
h~dous ~ten~s; ' , ',
(27)] adoption o f regulations, ~licic~, p~occdm'ea m~d [oc.d l,'t]id ative d~:cistmts in coanec-
6on ~ ~y ~tion oil fl~is list;
~lfill~;
(31) inm~rchng an existing c~c,
(s~ cl~pmrs 228 of the Laws of 1976, 253 t,t [t ,: l...tv,,s ol [*9 ~'7 .~lt1.160j)l ,ac I a~ sol 1978L
~y ~u~h ceffificatc;
§ 617.5
,,
80'7 of the Execgdv¢ Law located ,Mthin Ibc L.~kc { [co: ~ Pask x, dclincd :1~ suhdi,,'i~,ia ~
of sec ton 43-0103 of thc Enmr umw;/mi Coo, . ~ aL ~ , ~ J
§ 617.6 lnitial?eview of actiol:z anti establishing h;,u :q:~m ~,
(a) Initial review ofa£ljott$. (I,) As c~h,' as pi i, ~ :,, .m ,t ~:~:~ ,'~ h:,~ulafion .~1
agency has n9 M~er resins:brittles un~r tkd~ 1>~,
(iii) dc~'r~ne whether the action may mvoh'c ~ ,at or ~ ,r~ oth,:t 4)corms;
(iv) m~ a preJimin~y classification of mi action as 'l'}]~c ~ o~ L nb~tcd, asi.g
info--ion ~v~lable ~d comping it witI~ thc thresholds sci [ont~ in ~ccdoo 61 7.4 ,,f reis
Pm. Such ~eliufi~U classil'i¢~on w 11, asSiSL iu d;ztcrnlinmg ~hcd:~c~ a full EAt:
(2) For Ty~pe I ~dom% a full EAF (see section 617.20, Ai, pcr. di>; A, 4:,1 this Par'A ii~ast
able to identify} ex~cis ng a I dee diligencc. The le~ . : ' ' ' '
~d, as need~, Pm 3.
(3) For U~ist~ ~fions, file shun E,~r (see set:don 6 17.21). Appc~,dix C, of fl~is [~artl must
full EAF.for ~nBsmd ~tioos if tim shc,a EAY u~oald m:,l ~,:t,vidc tll~2 lead agenz) ~ith
requke o~er iafom~afion ne~s~m'y to detemfine sigr iff ~a ~cc.
(4) ~ ag~<y may w~ve mc r~uirement *bt an EA~ il a ,:ukd~ ElS is p;epi~rcd or
submitS. Thd ~ ~S may be u'~ed as m~ IxAI' lot Lit: 13~tml~.,~ c t)I ,le~, ~mmmg s~gml~,mce.
~e action is either Ty~ 1 o~ Utfli,Sl~ ~d is in fie ~ ~1~ ama thc ?~ov[sions of 19 I~ YCRR
~ ~so apply~ 1~s provision applie~ to ~1 ~ita[c'agc m ic~;, whc~ktcr a,A~l~g a~ a lead ~,r i~wolved
agency.
(6) Dete~lne whe~er fl~t q ype 1 or Utd~s<d action is locawd m a:l't agricultural
~ comply wi~ ~ pmvisiom of au~iVision 14) of section 3115 o[ ~_icle 25-~XA uf
Agriculture m~ M~ts lmw, ff applicable.
(b) E$t~l~Mngle~ agem:y, (1) Wl~m a sL~glc a~cac~ ~ arn,,tdvc~L at agc*~c¥ will
~e 1~ agency when it pro~)scs to unden;~:e, fund o~ ~ppxo~c a'l'yp< ~ t3r Unlisted acl~oo that
d~ not invol~e ~o~er agencT.
{i} If ~e age~y is directly unde~hng ~e actio: , it xm:st clctt rm gl< t~he sigt~ificmmc
8742 ~ns~mgn
CH^It['~ER VI GENER ,M, R[iGI~L^TIC.~NS §
dqtcmlinalion, ~ hi,zhevor is
(4) of~is sol.liras.oil rnusl ~:li)lio~cd.
· IS su~ivision.
(3} C~r~neted review.
le~ agency must be agre~l ut)on within ~0 catemhu dd~:~ (~1 Ih¢ duLc Iht: t{AF or dritft ElS
w? ~e appropriate [egio~ of lice of the
i(ii) The learl a:tency nmsl tk:teal~nc the s~gmlic:al~ c of Iht: ~ho~l w;thin 20 cMcndar
wt~ section 617.12 of this Pa~.
(iii) If a lead agency exercises due diligence in ~dc~tif'Ang al other i~tvolvcd agenc cs
~ provides wrilum2 notice of its ~tc~a~inmion of .,~gr. il k:Onc~ to ~t: idcmificd mvolve~[
(ii) q]le r~ul t must idcntil~ ~,ach involved agency's juhsdic'~;t n
wi~in 10 c~enda~ days after rcccipl ol thc
subp~agmph (ii) df this p~aph.
i b~ed on a review pf ~ c facts, tfie criteria ~lo~, and my c,
~gency);
impel(s) of ~e proposal action; and
involved agencies ~d the project
~6) Re-es~lishmentofle~
(i) Re-establis~ent of lead agency may occtn'l~y ~
~hc following circu~s~s:
(a) for a supplement to a tinat ElS or gene~ic ElS,
(b) upon f~re of ~e Icad ai~llcy s basts JUt sd o o
adverse environmen~ impure will nol ~ significant.
CHAPTE]P, VI GENERAL REGULATIONS {}617.7
~riteria for delerm~l:dng sign[fi~: ance:
(~i) a Jnajor c['tartg9 in the u~¢ ol ci~hcr ti< quand:) or t?,Ta ,: f enm'g);
(~iii) asubsafflchangeirll.t~,eusn, o-i~ enMtyolns¢,,IJ ar nct.~rlj~gagriculural,
space or recreatio?al l'esoulrccs, or in itt capacity to su )po]'t existing
(i~X) the encouraging or attr<lJng of a large mm'ocr ()1' pc~qde to a pla,ac or plat'es for
mor{: than a few day}, compare4t to the rtumbcr of people xYho would corn,.: m such place
(x]) the creation of a ntatl.~'ia~ dernm~d tt)7 othcz i,zdt)n> that would icsal[ ill nile ol the
subseqiiem actiona whicl~ are:
(ii
(ii
(3)
or impr
6-9/95
) depenflent thereon.
§ 617.7
([ii)
(iv)
its setting (e.g., urban or rural);
its probability of occa~r,?.nce;
its duration;
its [rreversibilily;
~)
lead agency ma
(i) has c~
(ii) has ~
Part;
(iii) has
mitigated all
other documj~ntation;
(v) has ~ompli~ with sul~ivision lb) ol lin:, ~: m.:
this Pa~.
(i) ~te~tially significm~L 4dvcrsc en~:"'°m nc ~ "~: a~t~:~':~' ~l;a~
(ii) a s~s~ti~ deficiency in ~e p~opo~ed I~li~i*~ZtliOI1
(3) %e le~d agency must re4uire ~1 ElS if requested by
(e) Amen~nt of a negative declaration. (I) At any time imm
(i) ch~ges a~ prolK~scd for the ~taj,:ct; or
(ii) new i~o~ation is tfiamvered:, or
p~B will ~c~.
(2) %e I~ad agency must preps, lil{l and publish the amended
detemlin~oq.
Rescission of negative declarations, [ (l) At ~3 ttme prior
(i) cha~ges ~e pro.sea t'or the pr°Jeer; or
(ii) new info.arian is diacovered; o:
may result~
(v) its geograptfic scope;
(vi) its magnitude; and
(vii) the immber of people affected.
Condition'ed negaiive declaralio~.
mplet~ a full EAF;
CHAI~TER VI! GI&NERAI., RE£;LJLATIO N S
za~on program, no Sate agency ~hall m~e a filuil dec,sim1 Oll all ~1, LJoe which i~, likely Lo afl'ecL
~ 617.10 ....
pmscn~ ~[~ h~s ~uon.
(2) T~pe I actions Agencies mus main~m a ~ilc:, rc~J~b i~cct~ibte lo thc p~btic,
Agencies g~ay provifle for l~lhlg of ~e~e dc~mmmlions with ;~gcnci~: s which may he
(i) wi~ ~e commissioner at 50 g~olf Roa& Alb~tll)'. N Y 1223 ~ (~[ tor pa b[icitLton In
the ENB;
(ii) ~wi h the ~propr a~ rcgionfl olhce ot tiao dcpar meal:
~ pfin~ip~ly l~amd;
(iv) in ~e ~ ~ offi ~ and app'01>nate rcg~<)m~ olhce I[ ;ltl ?, t*l OIC Icad a~ma:y;
(v) ~f ~e ~fion involves ~ ap~lic~Jl, ~n~ tt[e apphcam; anr~
(vi) ~ ironer agencies aminvolv~d h~approual of mc at:tioa, wtith each olhcr ;tgency.
(3) t~r ~m Type I ami tinlist~ ~¢lions, nouc:C of thc l~liag ~)t'a [~cgativc decJ[r~ion must
could ~ ~safisfi~ by inrLicating Ire SEQR c[;J~,S~ficatiun ol' ~he )L~ion m~,l ff~c ageoc~'s
dete~mhon of significance.
~) Posilive ~claradons. Posifi~ decimations 10r all Type I and tmJisted atriums mu~t be
prepS, fil~, published ired ~ade av~abie in ~¢ord~ce wlh this :~c. tdivisioa. ] he l~sitive
d~l~afion ~ust state that it hm t~en pr~ared ia ~cor~nce with :micle 8 of ~e Em ironment~
Come~afioo ~w ~d conl~l~s~ the nm~ *nd ad&cs~ of ~e te~t agcnc~; tge nmne and telephone
num~ of al~ who c:m pmvi& fuffi~:r irdomxltion; ~e locamm~of fl~e ~tio!l; and a brief
desmpfion 9f ~e ~asible si~ific~[ envffonmeota; eil~cL~ ~at ha,'~ ~en ide[ltit:icd and the
m~ns sup~ffing ~e ~tenr~inafion. A~l~ci~ ~lust ~minmin a [~lt: ol th* f~, wh!lcn
~sifiv¢ ~ation shall J~ [,ublish~ iu II:e ENB in a mannt:t I~rCst:rilwO by the dep;t~lment.
(c) Noti4es ofc~npletio~i bfdrafi EIS's. Whcngver a lc;id ag,gqcy h~ dcmrmmed thru a
~ali ~S is ~u~ for public ~eview. it sh~l prep;m: aad file ~ no;icc 01 complc[Jon Thc notice
(1) a brief ~d precise des~pfion ol'tEe acti,)[t covered vy tim ~l~tcmenl, l~ h~cat~on and
~ ~e[ofiB ~nfial e:3vironmenta~ impacts ar,d
2-15-96
§ 617.10
is later).
the ENB.
(d) Draft El$'s. The drafl :35, with m]y appcndlc,:~, togcth:r ~h ~l~t: n~ficc ol i[~ complc.
~on, shall ~ filed ~d made avaibtblc lbr mpytng as I.II ~w~
(l) unc c(lpy wiih Iht: commissioner a:. ~i0 W(~h' R~,,td Alba~x. N Y 122.33-(X~H
~ioa will ~ phncip~ly Iocau~J;
loc~ public libv~; ~d
617.11 Cfi~fia br de~rmiamg sign~Cance.
CHAPTER VI GENERAl. RI~Gt,LATIC~N!;
§ 617.9
(5) I]xcept as provided in subparil{yaph (i) ui d'ds paraln at',~, ttte Ic,~l aget;cy muSl prcpiuc
or cau~ Lo be prepped mid tm~st file a J'in~ ElS, v,'idfir~ 45 culem~dr days afar I,he clo~e of any
hearing or within 60 c~end~' days ~Ier the fihng ~d the ~ra:~ I :IS. ~' fichever ~-,: rs acr
O) No fi~ ElS ne{~ he prep~d if:
(~) the propo~o ac, lion h~ M~tm ~4thflrawn or;
s~lmn 617.12 o1' thii P~, ,
(ii) ~e l~t date fi)r ~rep~ation ired filing ol'the lirla. [;IS flu:.) ~ extezlded:
~uamly; or }
{bj ifpmblem~ wi~ ~e pro~sed act:on ~:quihng ma~crial~rcco~miderafion or
cation have been idcetifi~.
(6) When ~ lead age:ney h~ comple~d a liLal ElS, t~ nmak i:n-cpm, fiiv t~td publish a
617.12 of this
fi) ~e le~ agency ~ay r~luim a supplem, mat LIS. iill~tcd it} lhe s~cific significanl
from:
(a) ch~ges proposed lbr the~ln'oject;
(b) newly aiscovl:red infomtm.ion; or
(ii) %e ~cision to require p~pamlion of a aupp~mema[ ElS, in ~c casa o~ newly
(b) the presto slute of ~ iohn'n~li,m ~:1 the ElS
(iii) If a supplement is r~uk~t~ ~t will ~ subject to thc IrA] [n't)~M~es of flus Part.
m~ f~u upon which art agency's ~lmision is to tx~ m*tdc, h taus. ~yzc th' signific~t
adverse impacu ~d evzfitlate ~1 re~ouable Mternative~. ELS,, m~s[ be ~alyliCai ~d not
s~nsom Fho ~ prepafio,¢ EISs by ~king availnblc' Is~ them ielb~nafion
files rele~t m ~e ElS.
(2) EISs mast be cle;tdy ~d ~neiaely wfitl~m in plain language ~t c~ be read ~d
unders~ by ~e public. Within ~e l~mework pre~enled in p~agraph (5) of ltl a subdivision,
FlSa should ~ess oMy tls>Sc ~mnti~ significaol ~ve~ ,,., cnnironeten~ imp~l~
mammbl~ ~ticipamd ~dlor have ~m identifim~ in 0lc [coF~lllg ]}Iocesa [.ISI should not
~non ~d ~e s~gMfic~ce nf its p6teraiM impel:ts. Itighly tccl~dcal matcfi~ should be
includ~ in ~ ap~ndix.
(3) A~ ~aft m~d fin~ Illgs must be {~rec~ed by a ~v¢:: *heel
(i) Whe~er it is a &Ifli or fin~ ElS;
6-9/95
617.9
(ii) the name ~' descnpuvc utl~ o thc acuon~
(iii) the locatit~n (county and town. village or city) a,d street td,.llt'.s~ il"[mp]icablc.
pe~on ~ the agency who c~s prowde fur~er
(vi) ~e date o[ its a~epmnce h.y Ihe icad agency; a~d
(vii) in ~e case of a draft ElS, the dam by ~tuch cmnmcms m~s~ ~e
(4) A ~t or fi~ EIS nmst havela robie t~f gzmamts f,Alowmg thc covt:r s~l m~d
~rec~se su~ wh yh ~equmely ~ ~uratel:y au n nm~ ~ th~ sli ~.mcn.
(5) ~e romar o[ the &dr ElS m~y ~ flexible; however, ail draft EISs must include thc
following element: ~ ,,
{i) a con.se d~ption of ~e i~o~sed ~lion, its ptuposc, pubhc ne~ ~ ,md bencfit~.
ioclu~ng s~ial ~ ~onomic " ' ' ~
(ii) a conci~ [de~fiption o1' file] envkon~eat~ selling of I.he areas ~} be
sufficient m unO,md ~e ~lpi~ts of ~e ~o~sed ~'tion aad altemmive~. [
(~i) a s~mmept m~d evfluafiun of ~e ~mial signific~it ~ve~se environmental im
p~m m a level of ~il ~t mfl~ts the ~vefity .:ff the impacts a..I the red,scuttle liketit~m;~
of ~e~ ~uaenc*. The draft ElS should i~nl~l~ ~md di~,cuss the fo[Iowtg8 only waere
applicable ~d sig~ificanu
(b) those ~e~ envkomnea~l impacts zhla camlt.~l be avoided .n a&quatet~ mitt
g~ if ~e pm~s~ ~fion is implementM;
woud ~ ~s~ ~d ~th ~e pro1~d ~tion should ~t k~ implemented (~ ~y growfli-mductng aspecbs of ~e pr ~ )sca i ~ ,
(e) impacts [of me ~oposed aC}ton on fl,:,, u~c ..,: ct,.~er, at,~ ot energy 0or
elecxfic gen~at~g l~cility, the s~mcnt snub[ ~nclu~ic tt ~ClllDIlhL,t,h*.:. II.~l the fa, it/:',
,
(g) imp~ts~f public ~quisid0ns of I'aud or inler.,,t~ m Lux. os Ifil iii iI lot non
~cle ~-AA o[ ~c A~culture and M~kem I..axv; and
(h) if~cp~pos~ac~onis~involvt~s~cst:t.,,,m ~.~.,~o~Stl' d Co ~tc .
to ~cle 55 or ~y pl~ subsequently ~ifiml and alopt~:d pursuant lo ar:icle 5~ of thc
(iv) a descfip4on oft~ mitigali~ ~asm~$:,
le~g ~e objectives and capal~iliDes of the proFct spin, sar. The &scrip
are feasible, consi
.ion and evaluatit
comparative asses
the no action alter
:~eneficial site
of each ahemati~e should' be at it levd of dei~fil saJlicil;nt to permit
;mum of thc almra~tives disease, Thc {;lllg< O[ altenmfiv~:s must include
nges ~at ~e likulp to ~ut i~ the rca~mably fi:,resccab[i:: [mum. m the
CHAPTER VI GI:-NERAL I~EGUI.ATIONS
§ 6'17.9
sites;
technolugy;
rd1 ~sign;
(el timing;
(g) types of actiO!l. '
ne.~d ~:1 ma)' ~ described. Si~ ult~n'n~ivcs ma) t~ limited: to [~i~rt:els t~ lc~ by. rjr under
opm n to a phrase proj~.~t s~nso[;:
applibable co~tal ~)[icics ~nt~n~d in 19 NYC'RR (~).5; or when ~u action ~s i~an
approv~ l~ waterfront revital~alion program a~a, w~lh t[~c h)c~ prognun imhcies;
p~k m~agement p m
{v~ii) a list of arty un.flying studies, rcpons~ E[Ss aha mhcr i~ormltti(u'~
{6} In Mdition to kl~ ~ysis of signiHcaat adve~c impacts required m subp~agmph
(b)(5)(fii) of ~is sec2ot~) ~f info~tion ~bout re~o~b y fi>xcscq.tt)ta Cal~su'np~ic imp~ts to
agenq's SEQR 15adinga, ~e EtS mnsz:
(ifi) ~sesa the lik.e~ih~d of ~:cu~ence, even if ll~: probability of occa~ence ~ h)w, and
gen0r~ly a~pt~ in the scientific corn r m't
f~ihty. It d~s not ~t)tv in the review of such ~ct~ons ~ sh~)ppu~g m~ls. ~usidenti~ subdivi-
stuns or office lhcilifies, N,
(7) A ~Mt or final ElS my im:()~rate h~ rcfrrencc ~t or ~mffions ()f nB~er dcmuments)
including EISs that corflain information mlcvltnl to the s[meme~L The relm'ea.~ d~mnents
must ~ m~ available fg~ inspection by thc public witllJtl thc t[~]:c pefi~ Io~ public comment
in thel s~e plies wh~re ~e agex~cy m~&u~ availaole copic~ oF the EIS. Whea at~ ElS
inco~rmes by reference, ~c ref~renml documem mc~st 1~ h~i~ffly ~n)~ct) its apphcable
findings sa~i*~, aa~ d~e dine of tis preparalion provided.
~8) A fin~ ElS mu ~[ ~onsist of: the dralt I~S, nclufing ~y ~v~aons ()r supplements to ~t;
subsmfive comments. 'I~e ~t I~S may be ~ectly incm'[x,rat~ tnl{) thc hr}al ElS o[ may be
mco~r~ by relbrence. ~m [~td agency is m ~pm~ible for thc.adequacy
fin~ [~IS, rcg~ess of ~ho pmp~es it. All rev Nions and supplcumnt~ to O~e [~-illi ElS must bc
s~cific~t} indica~d and tdenufied as such m mc Imal ElS.
Oct. 6~ 1982; M~ch ,$~'1987; repeal:d, new fiha[ Sept, 20 :t~)5 cf:.
6-9~5
§ 617.10 ';rrL~!~, J['xV[RC)NM[:5,'I ~d~CONSER~ATIOX
§ 617,10 Ccaeri~ e~irenm~nta[ [O~lmct
(l) a numar of scp~a~ action~ in a given gc0grnpnic ,~a ~h]ch, if ~on~idercd
may have ~nor impacts, but if cons{de~d together may II;lee sigmficanI
(2) a s~uen~ of actions, contemplated hy a single agency or
(4) an en~e p~ or plan }~ving wide applicon or ~stnclmg t~e range of fu~m'e
flmmafive policies or p~jects, incloOing new pr significant ch~l~es co e~isling lent use plans,
lb) ~.p~culm agenc'es ~ y pn~. ..~e gert. ac EISs on ~c adoption of a cqmpmhens~ve p~
prcp~ n ~orda~ce w~th s~hd~wst~ 4 s~tma 28-a of the General C,~I) [.~w; subfl~c,n 4,
section 272-a of ~q Town ~w or s~i~sio6 4, ~tion %722 of ti~e Village ~w and
implementing regulations. Impacts (ff i~dividu~ actiom~ prnl)o~ m be c;a~l out in co~ibrm-
anc~ ~ ~=~ ~op~d pl~s and rcg0~ations ~:1 thc lh~shol~ or condnioa~ td=ntificd ir, ~e
~enefic ~S my r~uke no or Limited SEQR review as des6dbcd in suNlivisions (c) m~g (d) of
~ ~on. ~,
(e) G~fie ~S~ ~td ~eir findings shouh~ ~t fi~ st~cifie con&fion~ or cfimfia uader
~hieh fut~ ~fio~ ~1 ~ und=~kon or apprm'~, including r~uimmgnL~ I~r ~ny sub~gqucnl
SEQR' ~ompli~. ~is may ~clud~ ql~esN>l~ ~nd crilefia for suppkm~en~ ElSs to
~y~d in ~e genmc ElS.
(d) When a fia~ genetic ~IS Ms been fil~ Cnder thi~ }5:~1:
(1) no M~r SFOR ~mpli~is req~d if a subacqucnt proposed ~ ~i(m will bc cm fled
g~fic ~S or i~ngs statement: ~
. (2) an ~ findMg~ sta~n~t must I~ ',rcpm'cJ ff II~e sobat:quenl prolm~ed action
~ua~ly ~d in ~e generic ~S but ~a~ nm adt~t. ~ or wits rlol ~d~quulely adtiresscd
in &e findings a~ment for ~c generic ElS;
nm result in ~y si~ificmt en}ironmenml imp.ia% an,I
§617.12
dccision ~bay be made siu,,ull?~cously I:i~dings
{4) ~ certify that t~c ic~luiremen~ cd' tills Pz~ ha~c becel ntm; at~d :
(2)
~(mditmncd~egauVc dccl~a~m mu~t ms~ ~e~uty ...... "- - impacl~
§ 617.12 i i ri i ~:i ,:, I N ".'lid ( )I'. M I {N q A L CO N.ql:.lCv'/'. I tON
Part. ~ J
hcadng and ~ndings mull bc 5lcd with: :
(i) the]cbiel' execmive officer ol [hL~ polilicul subdivislun m whidt thc acti0u will bc
pfincipall~ located; {
(ii) tbql lead agency; [ :
(iii) ~ involved agencies (s~ alsu icction 61T6 b 3 of kllJs
(iv) a~ ~rson who ha~ ~cquested a, copy; and
(2) A ne a ire declar;fioo ~prepare{ ~ r ~ Unlfi;;cd action nmsl ~; fi]cd with Ihe
' ~ I
(31 All S~QR documcn s and oo iccs~ii'~cluding but not Hmilcd t(~ t~A1%, ncgafi~t:
lions. ~sitiv{ declarations, ~copcs. noticss of compk:mm of an ElS, }~lSs. nmicca ol hc;a'ing
~d findings ~ust ~ maintaiaqd in files that m'c readily accessible ? klle public; and made
available on ~qucst. , i ~ l
(41 Thc l~ad agency may ~h~ge a ¢~: ltl pers(ms mqucsling doeamcnls t~) recover its
copying cost~ ][ i: ~
(5) If sul'ficicm copies ol Ihfi ElS arc nnl available to meet public ili;ctcst, thc lc;Id agcr~cy
Division of E~vironmental Pcrmils 62~madway, A:bam, NY 1223i. 1750.
(c) Publicat~onofnotices. (t~ ' : :' , ' *
Environ~nent~l Notice Built tb~l~NBJ in a inanncr plcscri~d b5 thc dc~mrlmcnt. Nolicc musl
~ provided b~ t, hd lead agency d~rectly to Em, imnmcalal Notice th~tlt~tir~. 625 Broad~ a), Rm
538, AIb~y,~NY 12233-1750 for public,dion in thc k~NB qhc I~N}~ ;s acccs>i:Dk on
(2) A not~e of he. rig inaal~bc publisk;cd, att k:a~t Id days ia advance ~1' the hcam~
nofi~ in the qN B and thc
STATE OF NEW YORK, COUNTY OF ss.:
I, the ulgiersjgned, an attorney admitted to practice in the courts of N~v'Y'~ri~ ~tate, I~,'~a~,~r~ certify that the within
has been compared by me with the original and found to be a true and complete copy.
ill ~nn'* state that l am
the attorney(s) of record for
action; I have read the foregoing
in the within
and know the contents thereof;
the same is tree to my own knowledge, except as to the matters therein alleged to be on information and belief, and as to those matters
I believe it to be true. The reason this verification is made by me and not by
The grounds of my belief as to all matters not stated upon my own knowledge are as follows:
I affirm that the foregoing statements are true, under the penalties of perjury.
Dated: ...................... M~/~'~/~'~ ..........................
STATE OF NEW YORK, COUNTY OF ss.:
I, the undersigned, being duly sworn, depose and say: I am
II m~ in the action; I have read the foregoing
and know the contents thereof; the same is true to my own knowledge, except
] as to the matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true.
~ II ~ the of
~ a corporation and a party in the within action; I have read the foregoing
and know the contents thereof; and the same is tree to my own knowledge,
except as to the matters therein stated to be alleged upon information and belief, and as to those matters I believe it to be true. This
verification is made by me because the above party is a corporation and I am an officer thereof.
The grounds of my belief as to all matters not stated upon my own knowledge are as follows:
Sworn to before me on
STATE OF NEW YORK, COUNTY OF ss.: (Ir mo~ t~a oae box i~ ch~ckaa--i~eaa al~ ,m~ ~ of s~vi,~ ~.)
I, the undersigned, being sworn, say: I am not a party to the action, am over 18 years of age and reside at
I served the within
by mailing a copy to each of the following persons at the last known address set forth after each name below.
by delivering a true copy of each personally to each person named below at the address indicated. I knew each person served
to be the person mentioned and described in said papers as a party therein:
by transmitting a copy to the following persons by [] FAX at the telephone number set forth after each name below [] E-MAlL
l at the E-Mail address set forth after each name below, which was designated by the attoroey for such purpose, and by mailing a
copy to the address set forth after each name.
by dispatching a copy by overnight delivery to each of the following persons at the last known address set forth after each name
below.
I~EASE take notice that the within is a (certified)
~ copy of a
duly entered in the office of the clerk of the within
na~ed court on
Dated,
Yours, etc.
ADAM B. GROSSMAN, ESQ
Anorne~ for
Office and Post Office Address
P.O. Box 155
120 Court Street
RIVF. RHEAD, N.Y. 11901
To
Attorney(s) for
~PLEASE take notice 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
at M.
Dali,
Yours, etc.
ADAM B. GROSSMAN, ESQ
Anorney for
Office and Post Office Address
P.O. Box 155
120 Court Street
RIVERH~AD, N.Y. 11901
~ To
~ .A. ttomey(s) for
~dexNo. Year
TOWN BOARD OF THE TOWN OF SOUTHOLD ACTING AS
THE COASTAL EROSIQN ~g~RD BOARD OF REVIEW
APPLICATION OF ANGELO PADOVAN
FOR A VARIANCE TO OBTAIN A COASTAL
EROSION MANAGEMENT PERMIT
M~M~RAND~ OF LAW IN oPP9~ITION
ADAM B. GROSSMAN, ESQ
Ano~.sfor Objectunts The North Fork Beach
O~¢. ~.~ Post Office Add. ss, Te~ Condomi ni um
P.O. Box ]$5 Association
120 Court Street
RIVERHEAD, N.Y. 11901
(631) 727-4200
To
Attorney(s) for
Service of a copy of the within is hereby admitted.
Dated
Attorney(s) for
Proper-T Perrntt Services
P.O. Box 617, Cutchogue NY 11935
Phone: 631-734-5800
Fax: 631-734-7463
MEMORANDUM
TO: Elizabeth Neville, Town Clerk
FROM: Jim Fitzgerald
SUBJECT: Padovan Variance Hearing
DATE: June 18, 2002
Here are the following documents for your file:
· Survey (Lewandowski, 5/23/01)
· Photos A - K as referred to in my presentation on 6/18/02
· My presentation of 6/18/02
If you need anything else, please let me know.
RECEIVED
JUN 18 2002
Soutbold Towu Qork
COASTAL EROSION HAZARD BOARD OF REVIEW
Application of Angelo and Josephine Padovan
June 18, 2002
Good morning. I'm Jim Fitzgerald of Proper-T Permit Services and I represent Mr.
and Mrs. Padovan, who are here today. Also here is architect Mark Schwartz.
What I'd like to do is convince you that a variance to the provisions of Chapter 37
of the Town Code could be granted to allow the construction ora dwelling on the
Padovan's property on the Sound shore in Southold without compromising existing
shorefxom natural features, without causing significant adverse effects upon the en-
vironment and without putting the proposed dwelling in harm's way.
You have a copy of the application which was made to the Trustees as the Adminis-
trator of the Coastal Erosion Hazard Area provisions of the Town Code. The Trus-
tees, as you know, stated that they could not issue a permit under the provisions of
Chapter 37 because they found that the proposed projeet'was located in the "beach
area" and/or the "bluffarea", and that development of this sort is not allowed in ei-
ther area. There was, and still is, some question on my part about whether or not the
location could be correctly described as a bluff.
It is important to note that the denial of the permit by'the Trustees was based solely
upon specific prohibitions in the Town Code; the Trustees made no statemems
about any adverse physical or environmental impacts.
The Code requires that certain criteria be met in order that a request for a variance
be approved. I would like to go over the responses to those criteria which were
submitted with the application to the Board ....
(See separate listing.)
Applicant: Angelo Padovan
SCTM #1000-135-1-23 & 24.1
March 15, 2002
Criteria for Approval of a Variance
(§37-30)
A. No reasonable, prudent, alternative site is available.
Mr. Padovan owns no other property which is not already devel-
oped. The proposed location of the dwelling on the property is the
best location fi:om all standpoints.
B. All responsible means and measures to mitigate adverse impacts on
natural systems and their functions and values have been incorporated
into the activi _ty's design at the property owner's expense.
The design of the proposed structure will be such that the only in-
trusion into the beach area itself will be the installation of pilings
necessary to support the seaward portion of the structure above the
beach area. The pilings will be about 75 feet landward of the ordi-
nary high water mark; the installation of pilings for other purposes
is routinely pemfitted throughout the Town both seaward and
landward of the ordinary high water mark. Further, there will be in-
stalled at the toe of the bluff the Seaward wall of the foundation of
the structure, which wall will be not unlike erosion protection struc-
tures which are routinely pemfitted in the Coastal Erosion Hazard
Area.
With regard to the upland portion of the property, during construc-
tion adequate measures will be employed to ensure that any dis-
turbed areas of the surface of the bluff do not result in damaging
erosion. Final grading of the property will be such that mn-offwill
be directed to adequately designed and located catch basins to pre-
vent erosion resulting from changes in the land surface on the prop-
erty.
C. The development will be reasonably safe from flood and erosion
damage.
Based upon the long-term and damage-free survival of several
structures of similar type and siting to the west, and one structure to
the east, of the proposed structure it can be expected that the pro-
posed structure will be reasonably safe from flood and erosion
damage.
The variance requested is the minimum necessary_ to overcome the
practical difficulty or hardship which was the basis for the requested
variance.
The variance requested is of a "go, no-go" variety and therefore the
variance requested is the minimum necessary to overcome the prac-
tical difficulty and hardship.
E. Where public funds are utilized, the public benefits must clearly out-
weigh the long-term adverse effects.
This provision is not applicable in the present case.
'The two criteria which most directly apply to the main purposes of the Chapter, B.
and C., deal with the concept that no harm must come to the structure and functions
of the shoreline and that the potential for harm to the development itself must be
minimized. Fommately, this is easy to prove. We can look at existing structures in
nearby and/or similar locations and see how they have survived over the years, and
see at the same time how the shoreline has survived in the surrounding areas.
Photo A shows a little shack that has survived 80 years in its present location, and it
happens to be on the site we are proposing to build a house on. The two pink-
flagged stakes in the middle foreground mark the seaward comers of the structure
we propose. The Trustees' "bluff' is behind the house and their "beach" is in front
of the level area upon which the shack sits.
Photo B shows a deck and stairs which'were constructed on the property of the
condominiums across Sound View Avenue. The propertY is immediately to the
west of the Padovan's lot. Photo C shows the same two sets of stairs and the "unde-
veloped" area between them.
Photo D is of the group of houses, all built "on the bluff' and "on the beach" im-
mediately west of the structures in Photo C. The "bluff' and the beach are intact
throughout the area, and examination of the Suffolk County Topographic Maps of
the Five Eastern Towns shows the "bluff" and the beach unchanged in size or shape
from the time the maps were drawn from aerial photographs taken in 1974.
Photo E is of the fourth house from the left in Photo C. It shows the general method
we propose for the construction of the Padovan house: the landward part of the
house will have a foundation, while the seaward pan will be on pilings. The con-
~truction of the seaward wall of the foundation will minimize the possibility of ero-
sion during storm events by the placement of rock armoring if knowledgeable
agencies deem it appropriate.
Photo F shows a house that within the last few weeks was about to be moved onto
pilings. It looks like it will be on the beach. The property is on North Sea Drive,
east of Kenney's Beach.
Photo G shows houses on the beach or in the dunes; development is prohibited in
both areas, but the structures have obviously survived well. These houses are on
North Sea Drive, east of the house in Photo F.
Photo H shows beach houses west of the house in Photo F.
Photos I, J, and K show how well our shoreline survives even major modification
by structures in the beach area, while protecting the houses in the "bluff' area.
These houses are east of Town Beach. In Photo K, it appears.that the "bluff" that
existed before the construction may have been of about the same size as that fea-
ture on the Padovan's property.
Please understand that the reason for my showing these photographs is to support
my contention that construction of the sort we propose has not adversely affected
the structure and functions of the shoreline and that structures in exactly the same
sort of locations have not suffered unduly fi.om erosion or the impact of coastal
storms. It is not my intention to set you wondering about how some of the struc-
tures got there, nor do I suggest that we should be permitted because they were
permitted. Rather I suggest that you should be reassured by the fact that, however
.they got there, they have survived well and they have not done harm to the shore-
However, having said that, it should be noted that both the Town Code and
NYSDEC regulations recognize that in situations where surrounding or nearby ex-
isting structures do not meet current setback requirements, a proposed new structure
that conforms to an existing average or general setback may be permitted.
I have only talked about the placement of a structure on the property. With regard
to the use of the dwelling, roof and impervious-surface m-offwill be contained on
site, and the septic system will, of course, be designed in accordance with SCDHS
guidelines and requiremems. During construction, staked hay bales and silt fences
will be installed as necessary to insure that no foreign matter is washed onto the
beach.
As I said, these comments have been intended to show that criteria B. and C. for the
granting of a variance are met by this project. Criteria A., D. and E. are straightfor-
ward in this case and they were addressed earlier and in the material submitted to
the Board with the application for the variance. Since all the criteria have been met,
I ask that the Board grant the variance as applied for; that is, to allow the construc-
tion of a single-family dwelling on the Padovan's proPerty identified by SCTM No.
1000-135-1-25.1.
NOTICE Og PUBLIC HEARING
NOTICE IS HEREBY GIVEN that
the Town Board of the Town of
$outhold hereby sets 10:00 a.m.,
Tuesday, July 16, 2002, Southold Town
Hall, 53095 Main Road, $outhold. New
York as the time and place for a public
hearing which was previously recessed
and will be reconvened on the question
of appealing of a decision of the
Southold Town Trustees' denial of the
Padovan application. The application
was to "Construct single-family
dwelling, partially on pilings, with on-
site sewage disposal system and public
water". The proper~y in question is iden-
tified by SCTM# 1000-135-1-23 &
24.1. The application wa denied under
Chapter 37 (Coastal Erosion Hazard
Areas) of the Town Code.
A more detailed description of the
above-mentioned application is on file
in the Southold Town Clerk's Office,
53095 Main Road, Southold, New York,
and may be examined by any interested
person during business hours.
Dated: June 18. 2002
BY ORDER OF THE
SOUTHOLD TOWN BOARD
ELIZABETH A. NEVILLE
SOUTHOLD TOWN CLERK
2371-1T J¥4
STATE OF NEW YORK)
)SS:
COU N_~Y OF SUFFO}.~K)~ -
-~'-~,d/52~c,~/__~----Z~'~"/e--~ of Mattituck, in said
county, being duly sworn, says that he/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 / weeks succes-
sively, commencing on the ~ day
of ~'-dd~/ 20z9~
P~ncipal Clerk
Sworn to before me this
dayof
LAURA E. BONDARCHUK
Notary Public, State of New York
No 01 B06067958
Qualified in Suffolk County
My Commission Expires Dec. 24, 20-
ELIZABETH A. NEVILLE
TOWN CLERK
REGISTRAR OF VITAL STATISTICS
MARRIAGE OFFICER
RECORDS MANAGEMENT OFFICER
FREEDOM· OF INFORMATION OFFICER
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
Fax (631) 765-6145
Telephone (631) 765-1800
southoldtown.northfork.net
OFFICE OF THE TOWN CLERK
TOWN OF SOUTHOLD
FAX TRANSMITTAL
TO:
SUFFOLK TIMES - ATTENTION: Joan Ann
FROM:
DATE:
RE:
LYNDA M. BOHN
6/21/2002
LEGAL NOTICES FOR PUBLICATION IN 2002
Number of pages being faxed 3 including cover page
If total transmittal is not received, please call 631 765-1800.
fax 631 765-6145
One (1) Notice of Public Hearing for publication 6/27/02
One (1) Notice of Public hearing for publication 7/2 or 7/3/02
PLEASE ACKNOW!,EDGE RECEIPT OF THIS LEGAL NOTICE WITHIN ONE (1) HOUR
BY SIGNING BELOW AND RETURNING BY FAX TO 765-6145, ATTENTION: BETTY
NEVILLE. THANK YOU.
Received By Date
06/2i/2002 15:57 63i2983287
2i/06 '02 ~RI 1¢:41 F~ ~18 188 §]
TIMESREVIEW
SOITn~OLD CL£RK
PAGE 81
'folk Times ~101
Tow :.Is.Il. 53095 l-i'-i',, Road
P,O. Bo~ 1179
;~o~ : mld, N~,York 11971
~ ~ (681) 765-81A;
T" 8~one (~31) 765-1~00
S.OU~ * ~ldtown.nor~fO~k.nsC
OFFICE OF THE TOWN
TOWN OF SOUTHOLD
TO:
FROM:
DATE:
SUFFOLKTLM~S ,,- ATTENTION:,~Iosn
L~GAL NOTICES FOR PURLIC ,ATIO~iN2002
Number ofpag~ b~ing fa.xed 3 including coy= pa~e
If total 'lr~n,mmlrl~ is not rec~ive~ pl~se eal1631. 76S-1800.
fax 6~1 76~-61~
One (1) Notice o£Pub~ic Hearing for publication (vg,2~
One (1) Notice of Public hearing ~or publication 7/2 or
PLEASB ACKNOW~-~-~OE RECEIPT OF THiS LEGAL N(YFICB ,,~]~ ~ ~ {~) HO~
BY SIO~G B~OW ~ ~G BY~ TO 765-614S. A~ [~ ,. }~ BE~
Dat~
LEGAL NOTICE
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that the Town Board of the Town of Southold hereby sets
10:00 A.M., Tuesday, July 16, 2002, Southold Town Hall, 53095 Main Road, Southold,
New York as the time and place for a public hearing which was previously recessed and will
be reconvened on the question of appealing of a decision of the Southold Town Trustees'
den]al of the Padovan application. The application was to "Construct single-family dwelling,
partially on pilings, with on-site sewage disposal system and public water". The property in
question is identified by SCTM# 1000-135-1-23 & 24.1. The application was den]ed under
Chapter 37 (Coastal Erosion Hazard Areas) of the Town Code.
A more detailed description of the above mentioned application is on file in the Southold
Town Clerk's Office, 53095 Main Road, Southold, New York, and may be examined by any
interested person during business hours.
Dated: June 18, 2002
BY ORDER OF THE SOUTHOLD TOWN BOARD
ELIZABETH A. NEVILLE
SOUTHOLD TOWN CLERK
PLEASE PUBLISH ON .JULY 3~ 2002, AND FORWARD ONE (1) AFFIDAVIT OF
PUBLICATION TO ELIZABETH NEVILLE, TOWN CLERK, TOWN HALL, PO
BOX 1179, SOUTHOLD, NY 11971.
Copies to the following:
The Suffolk Times
Town Board Members
Town Attorney
John Cushman, Accounting
Southold Town Trustees
Town Clerk's Bulletin Board
ELIZABETH A. NE]ii~LLE, Town Clerk of the Town of SouillJd, New York being duly
that on thl~]~..~ day of ~a~.~..e~, 200~, she affixed a notice of
sworn,
says
which the annexed printed notice is a tin,copy, in a proper and substantial manner, in a most
public place in the Town of Southold, Suffolk County, New York, to wit: Town Clerk's
Bulletin Board, 53095 Main Road, Southold, New York.
NOTICE OF PUBLIC HEARINGS FOR JULY 16, 2002
~-~ ~b~th A~. Neville (
Southold Town Clerk
Sworn before me ~ais
cpc( day of ~ ,2002.
'~lota~ Public '
LYNDA M. BOHN
}(OTARY PUBLIC, State ot New York
No. 01806020932
Qualified in Suflotk Count~-~.
Term Expires March 8, 20 ~
LEGAL NOTICE
NOTICE OF P~BLIC HEARING
NOTICE IS HEREBY GIVE~ that
the Town Board of the Town of
Southold hereby sets 10:00 a.m..
Tuesday. June 18, 20~2, South01d Town
Hall, 53095 Main Road, Southold, New
Yo~k as the time and place fo~ a public
heating on the question of appealing of
a decision of the Southold Town
Trustees' denial of the Padovan applica-
tion. The application was to "Construct
single-family dwelling, paOially on pil-
ings, with on-site sewage disposal sys-
tem and public watea-". The property in
question is identified by SCTM# 1000-
135-1-23 & 24.1. The application was
denied under Chapter 37 (Coastal
Erosion Hazard Areas) of the Town
Code.
A more detailed description of the
above mentioned application is on file
in the Southoid Town Clerk's Office,
53095 Main Road, Southold, New York,
and may bo examined by any interested
person during business hours.
Dated: April 25. 2002
BY ORDER OF THE
SOUTHOLD TOWN BOARD
ELIZABE~It A. NEVILLE
SOUTHOLD TOWN CLERK
2312-1TM2
STATE OF NE-W YORK)
)SS:
COU_O_.~ O_F SUFFOLK).
~,¢~J~~ of Mattituck, in said
county, being duly swom, says that he/she is Principal
clerk of THE SUFFOLK TIMES, a weeldy newspaper, pub-
lished 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 pdnted copy, has been regularly pub-
lished in said Newspaper once each week
for / weeks successively, commencing
on the ~ day
of ,,~/~/ 200.2.--'
~' '~Pdncipal Clerk
Sworn to before me this ~
day of ~ 20 0 ~
LAURA E. BONDARCHUK
Notary Public, State of New York
No 01 B06067958
Qualified in Suffolk County
My Commission Expires Dec. 24, 20,.~-
~a/30/2002 09:53 63129~32@7
3o/o4 'o2 TUE o~24 FAX $16 765
TOWN (ILl/IRK
MARRIAGE OFF~E~.
~ECORDI~ MAI~AGEM:ENT OFTICEi~
FREEDOM OF 12~FOI~MA-TION OFFIC, ER
TIMESREVIEW
$O~.rrltOLD CLERK
PAGE 01
SuffolR Tlmes ~lO1
Town Hall, 53095 Main l~ad
P,O, Bo~ 1179
Southold, N~' York 11971
F~ (681) 765-614~
Te~ph~e (6313 765-1800
southoldt~,no~hfork-n~
OFFICE OF THE TOWN CLERK
TOWN OF 5OUTHOLD
FAX TRANSMITTAL
TO:
FROM:
DATR:
RE:
SUI~OLKTIMES - ATTENTION: ,l~an Ann
.. 4/~0/~0~
LEG~ NO~S FOR ~LICATION ~ ~002
Nxumber of pages being faxed ,,2 including cowr page
ff total ~au~al is not r~ceive~ ple~e call 631 76~-1800.
f~ 631 765-~45
~e (l) NoQCe o~Pub~c Hc~g
PLEASE ACKNOWLBDGE RECEIPT OF ~ LEGAL NOTICE W/[rH/N ONE ti) HOUR,.
BY SIGNING m~.I.OW AND KEITJRNINO BY FAX TO 7,65-6145. AI-I'IiNTION: BETTY
NEVILLE. THANK. YOLL.
Kecci Datc
ELIZABETH A. NEVILLE
TOWN CLERK
REGISTRAR OF VITAL STATISTICS
MARRIAGE OFFICER
RECORDS MANAGEMENT OFFICER
FREEDOM OF INFORMATION OFFICER
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
Fax (631) 765-6145
Telephone (631) 765-1800
southoldtown.northfork.net
OFFICE OF THE TOWN CLERK
TOWN OF SOUTHOLD
FAX TRANSMITTAL
TO:
SUFFOLK TIMES - ATTENTION: Joan Ann
FROM:
DATE:
RE:
LYNDA M. BOHN
4/30/2002
LEGAL NOTICES FOR PUBLICATION IN 2002
Number of pages being faxed 2 including cover page
If total transmittal is not received, please call 631 765-1800.
fax 631 765-6145
One (1) Notice of Public Hearing
PLEASE ACKNOWLEDGE RECEIPT OF THIS LEGAL NOTICE WITHIN ONE (1) HOUR
BY SIGNING BELOW AND RETURNING BY FAX TO 765-6145, ATTENTION: BETTY
NEVILLE. THANK YOU.
Received By Date
LEGAL NOTICE
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that the Town Board of the Town of Southold hereby sets
10:00 A.M., Tuesday, June 18, 2002, Southold Town Hall, 53095 Main Road, Southold,
New York as the time and place for a public heating on the question of appealing of a
decision of the Southold Town Trustees' denial of the Padovan application. The application
was to "Construct single-family dwelling, partially on pilings, with on-site sewage disposal
system and public water". The property in question is identified by SCTM# 1000-135-1-23
& 24.1. The application was denied under Chapter 37 (Coastal Erosion Hazard Areas) of
the Town Code.
A more detailed description of the above mentioned application is on file in the Southold
Town Clerk's Office, 53095 Main Road, Southold, New York, and may be examined by any
interested person during business hours.
Dated: April 25, 2002
BY ORDER OF THE SOUTHOLD TOWN BOARD
ELIZABETH A. NEVILLE
SOUTHOLD TOWN CLERK
PLEASE PUBLISH ON MAY 2, 2002, AND FORWARD ONE (1) AFFIDAVIT OF
PUBLICATION TO ELIZABETH NEVILLE, TOWN CLERK, TOWN HALL, PO
BOX 1179, SOUTHOLD, NY 11971.
Copies to the following:
The Suffolk Times
Town Board Members
Town Attorney
John Cushman, Accounting
Southold Town Trustees
Town Clerk's Bulletin Board
STATE OF NEW YORK )
SS:
COUNTY OF SUFFOLK)
ELIZABETH A. NEVILLE, Town Clerk of the Town of Southold, New York being duly
sworn, says that on the ..~ day of ~xJ,_JL ,2002, she affixed a notice of
which the annexed printed notice is a tree copy, in a proper and substantial manner, in a most
public place in the Town of Southold, Suffolk County, New York, to wit: Town Clerk's
Bulletin Board, 53095 Main Road, Southold, New York.
NOTICE OF PUBLIC HEARINGS FOR JUNE 18, 2002
lizabeth A. ~eville
Southold Town Clerk
Swom before me this
30~A4 day of ~ ,2002.
LYNDA M. BOHN
NOTARY PUBLIC, State o! New Yo~
No. 01B06020932
(3ualified in Suffolk Count~
Term Expires March 8, 20 ._.,
Town Of Southold
~S P.O Box 1179
outhold, NY 11971
* * * RECEIPT * * *
Date: 05/01/02
Transaction(s):
Application For Appeal
Receipt~:
2206
Subtotal
$250.00
Check#: 2206
Total Paid: $250.00
Name:
Padovan, Angelo
22615 Soundview Ave.
Southold, N.y. 11971
Clerk ID: LYNDAB Internal ID: 53774
SUPERVISOR
JOSHUA Y. HORTON
COUNCILPERSONS
JUSTICE LOUISA P. EVANS
WILLIAM D. MOORE
JOHN M. ROMANELLI
. CRAIG A. RICHTER
THO~AS H. WICKPIAM
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
Telephone (631) 765-1889
Fax (631) 765-1823
TOWN BOARD
TOWN OF SOUTHOLD
APPLICATION FOR APPEAL TO
THE COASTAL EROSION HAZARD BOARD OF REVIEVV
DATE March 15, 2002 (date of original submission)
James E. Fitzgerald, Jr.
NAME OFAPPLICANT: fo~ An~e~o Fadovan
ADDRESS: PO Box 617, Cutcho~ue NY 11935
DATE OF DECISION APPEALED FROM February 20, 2002
SPECIFIC CHAPTER/SECTION INVOLVED 37- ~ 5D and/or 37-17A (3)
THE ALLEGED ERRORSIN THE DETERMINATION ARE:
Errors are not alleged. As provided in 37-30, this application
is intended to show that the strict application of the standards
and restrictions of Chapter ~'f will cause unnecessary hardship and
INTERPRETATION THATIS CLAIMED TO BE CORRECT: practical difficulty.
Granting of a variance under 37-30.
RELIEF SOUGHT: See my letter of March 15, 2002~ previously submitted.
*COPY OF THE ENTIRE BOARD OF TRUSTEE FILE INCLUDING ANY
' //
6/18/02 TUE 08:32 FAX 516 765 1366
Albert J. Krupsld, President
J~mes F~n~, lr~e-l~e$ident
Ar~e Foyer
Southold Town Accounting
~ 001
Town Hall
53095 Route 25
P,O. Box 1179
Smltholc]., New Yo~k 11971-0959
Telephone (631) 765-1892
Fax (631) 765-1366
BOARD OF TOWN TRUSTEES
TOWN OF SOUTHOLD
Februa~.' 27, 2002
M_r. James E. Fitzgerald, Yr.
Proper-T Permit Services
P.O. Box 617
Cutchogue, NY 11935
RE: ANGELO PADOVAN
22455 Soundview Ave., Southold
SCTM#135-1-23 & 24.1
Dcar M_~, Fitzgcrald:
The Sou,:hold Town Board of Trustees reviewed your application to construct a single-
family dwcllin§ v~ithir, thc Coastal Erosion Hazard Area and 'after reviewing Chapter 37
of thc Town Coctc, determined that the Code does not allow for th~ activities proposcek to
occur w~thi~ tha~ ar~a.
Enclosed is a check in ~hc m~.ount of $200.00, wkich is a retired of your ~plication fcc.
If you l~x'e ~.y q.uesl~ons, please conm~; our office.
Very tnfly yours,
Albext J. Krupski, ~[r.
President, Board of Trustees
RESOLUTION APRIL 25, 2002 V - 284
RESOLVED that the Town Board of the Town of Southold hereby sets the public
hearing for the appeal of a decision of the Southold Town Trustees which decision
denied the application of Angelo Padovan for June 18~ 2002 at 10:00 a.m. in the
Meeting Hall of the Southold Town Hall. The application was to "Construct single-
family dwelling, partially on pilings, with on-site sewage disposal system and public
water". The property in questions is identified by SCTM# 1000-135-1-23 & 24.1. The
application was denied under Chapter 37 (Coastal Erosion Hazard Areas) of the Town
Code.
GREGORY F. YAKABOSKI
TOWN ATTORNEY
MARY C. WILSON
ASSISTANT TOWN ATTORNEY
JOSHUA Y. HORTON/-/-"'~'~-~
Supervisor
Town Hall, 53095 Route 25
P.O. Box 1179
Southold, New York 11971-0959
Telephone (631) 765-1889
greg.yakaboski@town.southold.ny.us
mary.wilson@town.southold.ny.us
OFFICE OF THE TOWN ATTORNEY
TOWN OF SOUTHOLD
TO:
FROM:
DATE:
RE:
MEMORADUM
ELIZABETH A. NEVILLE, TOWN CLERK
GREGORY F. YAKABOSKI, ESQ., TOWN A'I-rORNEY
MARY C. WILSON, ESQ., ASSISTANT TOWN ATTORNEY-~--~
APRIL 15, 2002
COASTAL EROSION HAZARD BOARD OF REVIEW
As the code does not provide for any special requirements for a
hearing on an appeal to the above mentioned Board (Chapter 37),
you have asked what procedures should be used,
The Town Board acts as the Board of Review for the Coastal
Erosion Hazard appeal from an administrator's decision. The Town
Board must chose a date for a hearing (which may be the day of a
Town Board work session/meeting ) notify the interested parties
and publish the date of the hearing in the official newspaper. The
rules of the headng are not set forth but the Board would basically
receive and review documentation and testimony from the person
appealing the decision, provide any other interested persons with
an opportunity to be heard and render a written decision thereafter.
ELIZABETH A. NEVILLE
TOWN CLERK
REGISTRAR OF VITAL STATISTICS
IVLh. RRIAG E 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-i800
southoldtown.northfork.net
OFFICE OF THE TOWN CLERK
TOWN OF SOUTHOLD
April 11, 2002
James E. Fitzgerald, Jr.
Proper-T Permit Services
Post Office Box 617
Cutchogue, New York 11935
Dear Mr. Fitzgerald:
In accordance with our telephone conversation this afternoon, I am sending you the
newly adopted "Application for Appeal to the Coastal Erosion Hazard Board of Review" form,
together with a copy of the April 9, 2002 Southold Town Board resolution adopting this form.
Please complete and return this form, together with any other items that may be outstanding from
the Board of Trustee file. I am holding your check and all of the items that you submitted on
March 15, 2002 and will commence processing the appeal as soon as you return the completed
form. If you have any questions, please do not hesitate to call me at 765-1800. Thank you.
Very truly yours,
Southold Town Clerk
cc: Town Board
Town Attorney
Trustees
SUPERVISOR
30SIIUA Y. IIORTON
COUNCILPERSONS
,JUSTICE LOUISA P. EVANS
WILLIAM D. MOORE
JOHN M. ROIvLANELLI
CkkhlG A. RICHTER
THOMAS H. WICKHAM
Town Hall, 53095 Main Road
ILO. Box 1179
Southold, New York 11971
Telephone (631) 765-1889
Fax (631) 765-1823
TOWN BOARD
TOWN OF SOUTHOLD
APPLICATION FOR APPEAL TO
THE COASTAL EROSION HAZARD BOARD OF REVIEW
DATE
NAME OF APPLICANT:
ADDRESS:
DATE OF DECISION APPEALED FROM
SPECIFIC CHAPTER/SECTION INVOLVED
THE ALLEGED ERRORS IN THE DETERMINATION ARE:
INTERPRETATION THAT IS CLAIMED TO BE CORRECT:
RELIEF SOUGHT:
*COPY OF THE ENTIRE BOARD OF TRUSTEE FILE INCLUDING ANY
RELEVANT MAPS MUST BE ATTACHED TO THIS APPEAL
SIGNATURE OF APPLICANT
ELIZABETH A. NEVILLE
TOWN CLERK
REGISTRAR OF VITAL STATISTICS
MARRIAGE OFFICER
RECORDS MANAGEMENT OFFICER
FREEDOM OF INFORMATION OFI~'ICER
Toxvn Hall, 53095 Main Road
P.O. Box 1179
Southold, Ne~v York 11971
Fax (631) 765-6145
Telephone (631) 765-1800
southoldtown.northfork.net
OFFICE OF THE TOWN CLERK
TOWN OF SOUTHOLD
THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 253 OF 2002
WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTltOLD TOWN BOARD
ON APRIL 9, 2002:
RESOLVED that the Town Board of the Town of Southold hereby adopts the new form
attached hereto and made a part of this resolution~ to be used by the Town Clerk's Office
for Application for Appeal to the Coastal Erosion Hazard Board of Review~ all in
accordance with the approval of the Town Attorney.
Elizabeth A. Neville
Southold Town Clerk
TO:
FROM:
RE:
DATE:
Gregory F. Yakaboski, Town Attorney
Mary A. Wilson, Assistant Town Attorney
Elizabeth A. Neville, Town Clerk
Coastal Erosion Hazard Appeal
3/18/02
Greg/Mary:
Please review the attached application and advise of procedures for setting up hearing. This is
the first Coastal Erosion H d Appeal that has been filed in this ofl~ce.
Thank you.
Proper- T Perrni Services
POST OFFICE BOX 617, CUTCHOGUE, NEW YORK 11935-0617
(631) 734-5800
March 15, 2002
Southold Town Board
acting as
Coastal Erosion Hazard Board of Review
c/o Southold Town Clerk
Town Hall, 53095 Main Road
Southold, New York 11935
Re: Appeal of A Decision of the Southold Town Trustees with regard to the Application
ofAngelo Padovam SCTM #1000-135-1-23 & 24.1, and Request for a Variance
Gentlepersons:
In accordance with the provisions of the Town Code, Chapter 37, Article IV, this is a request for
variance from the strict application of the standards and restrictions of the Chapter, which in this
case will cause practical difficulty and unnecessary hardship.
At the Town Trustees meeting of February 20, 2002, the Board denied the application of Angelo
Padovan for a permit. The permit application described the project as follows: "Construct single-
family dwelling, partially on pilings, with on-site sewage disposal system and public water." The
Trustees have not yet issued a written denial, but the provision in §37-35A that the appeal must
be filed within 30 days of the date of the adverse decision requires that the present submission be
made without further delay.
Inquiry of the Town Clerk regarding the "standard forms prescribed by the Board" as required by
§37-35B revealed that standard forms are not available. A copy of the application submitted to
the Town Trustees is attached to provide the basic information concerning the project. If the
Board of Review requires additional information, please request it from me at your earliest con-
venience.
The standard, restriction or requirement to be varied, as required by §37-31, is presumed, in the
absence of a formal written denial from the Trustees, to be: §37-15D. "All development is prohib-
ited on beaches unless specifically provided for by this chapter." and/or §37-17A.(3) "All devel-
opment unless specifically allowed by §37-17B. of this chapter." It is important to note that the
denial of the permit by the Trustees was based solely upon the cited prohibition(s) in the
Town Code; the Board made no statements about any adverse physical or environmental
impacts.
a subsidiary of
THE PECONIC EASTERN CORPORATION
Coastal Erosion Hazard Board of Review °2- March 15, 2002
The practical difficulty or unnecessary hardship claimed is that if the variance is not granted Mr.
Padovan will be unable to build a dwelling on the referenced property. The relief which is re-
quested is a variance to the above-quoted provisions of §37-15D. and §37-17A.(3).
With regard to the requirement of §37-31 that the request for a variance must specify how the re-
quested variance meets the criteria of §37-30, the required information is provided in the attached
"Criteria for Approval of a Variance".
The required fee of $250 is enclosed.
In addition, "Notes Concerning Angelo Padovan Application", dated 2/20/02, was prepared for
presentation to the Trustees at the public hearing on the application, but the situation was such
that it was not appropriate to present it. A copy is attached for your review.
Further, a cross-section drawing of a construction concept was prepared by Mr. Padovan's archi-
tect. A copy of the drawing, dated 12/10/01 is also enclosed.
,~ Si~erely, /) ~/~
~,hirnes E. Uitzger4 Jr.
Applicant: Angelo Padovan
SCTM #1000-135-1-23 & 24.1
March 15, 2002
Criteria for Approval of a Variance
({}37-30)
A. No reasonable, prudent, alternative site is available.
Mr. Padovan owns no other property which is not already developed. The proposed location of the
dwelling on the property is the best location from all standpoints.
B. All responsible means and measures to mitigate adverse impacts on natural systems and their functions
and values have been incorporated into the activity's design at the property owner's expense.
The design of the proposed structure will be such that the only intrusion into the beach area itself
will be the installation of pilings necessary to support the seaward portion of the structure above
the beach area. The pilings will be about 75 feet landward of the ordinary high water mark; the in-
stallation of pilings for other purposes is routinely permitted throughout the Town both seaward
and landward of the ordinary high water mark. Further, there will be installed at the toe of the
bluff the seaward wall of the foundation of the structure, which wall will be not unlike erosion
protection structures which are routinely permitted in the Coastal Erosion Hazard Area.
With regard to the upland portion of the property, during construction adequate measures will be
employed to ensure that any disturbed areas of the surface of the bluff do not result in damaging
erosion. Final grading of the property will be such that run-offwill be directed to adequately de-
signed and located catch basins to prevent erosion resulting from changes in the land surface on
the property.
C. The development will be reasonably safe from flood and erosion damage.
Based upon the long-term and damage-free survival of several structures of similar type and siting
to the west, and one structure to the east, of the proposed structure it can be expected that the pro-
posed structure will be reasonably safe from flood and erosion damage.
D. The variance requested is the minimum necessary to overcome the practical difficulty or hardship
which was the basis for the requested variance.
The variance requested is of a "go, no-go" variety and therefore the variance requested is the
minimum necessary to overcome the practical difficulty and hardship.
E. Where public funds are utilized, the public benefits must clearly outweigh the long-term adverse ef-
fects.
This provision is not applicable in the present case.
February20,2002
NOTES CONCERNING ANGELO PADOVAN APPLICATION
We can expect that there will be no significant adverse environmental impacts from the imple-
mentation of the project as proposed. The project is not likely to cause a measurable increase in
erosion at the proposed site or at other nearby locations; the seaward limit of the project will be
similar to that of the structure to the east, which is known not to have caused erosion problems at
the site of the proposed project. Other houses and structures in the area to the west have long ex-
isted and survived in locations more seaward than that proposed here and on steeper and higher
bluffs. This project will either prevent or be neutral to the effects on natural protective features
and their functions and protective values.
If the Trustees, as the agency responsible for administering the Coastal Erosion HaTard Area
Law, decide to deny the application for this project, it should be because they believe that from an
environmental standpoint this project would be harmful in this location, and they should clearly
and specifically state the way(s) in which it would be harmful in the denial. A denial arrived at
became of lack of support from another agency would not be fair to the applicant and might un-
necessarily subject the applicant to a long appeal procedure.
Part 37-4C of the Town Code states the following as a purpose of the chapter
Regulate new construction or placement of structures in order to place them a safe distance
from areas of active erosion and the impact of coastal storms to ensure that these structures
are not prematurely destroyed or damaged due to improper siting, as well as to prevent dam-
age to natural protective features and other natural resources.
We understand that prohibitions in other parts of the regulations dealing with specific areas pre-
elude the direct application of this "purpose" to the review of the present application, but the pro-
ject we are proposing would certainly be acceptable under the terms,~h~ 7tement.
esE. Fitzgeral~
Albert J. Krupski, President
James King, Vice-President
Henry Smith
Artie Foster
Ken Poliwoda
Town Hall
53095Route 25
P.O. Box 1179
Southold,,NewYork 11971-0959
Telephone (631) 765-1892
Fax (631) 765-1366
BOARD OF TOWN T~USTEES
TOWN OF SOUTHOLD
Office Use Only
Coastal Erosion Permit Application
Wetland Permit Application __ Major
Waiver/Amendment/Changes
Received Application:
Received Fee:$
Completed Application
Incomplete
SEQRA Classification:
Type I Type II Unlisted
Coordination:(date sent)
CAC Referral Sent:
Date of Inspection:
Receipt of CAC Report:
Lead Agency Determination:__
Technical Review:
Public Hearing Held:
Resolution:
Minor
NameofApplicam Angelo Padovan
Address 101-20 67th Drive, Forest Hills NY 11375
Phone Number:( ) 718-896-2354
Suffolk County Tax Map Number: 1000- 135-1-23 & 24.1
PropertyLocation: 22455 Sound View Avenue, South. old
(provide LILCO Pole #, distance to cross streets, and location)
AGENT:
(If applicable)
Address:
James E. FitzEerald, Jr. / Prooer-T Permit Services
PO Box 617, Cutchogue I~Y 11935
Phone:
~oard of Trustees Applicat~
Land Area (in square feet):
Area Zoning:
GENERAL DATA
18~80
R-40
Previous use of property:
Intended use of property:
Undeveloped
Private residence
Prior permits/approvals for site improvements:
Agency Date
X No prior permits/approvals for site improvements.
Has any permit/approval ever been revoked or suspended by a governmental agency?
X No Yes
If yes, provide explanation:
PROJECT DESCRIPTION: Construct single-family dwelling, partially on pilings, with on-
site sewage disposal system and public water.
~ard of Trustees Applicati~
COASTAL EROSION APPLICATION DATA
Purposes ofproposed activity: Construct single-family private
residence.
Are wetlands present within 100 feet of the proposed activity7
No X Yes
Does the project involve excavation or filling?
No X Yes
If Yes, how much material will be excavated?est 75 (cubic yards)
How much material will be filled? none (cubic yards)
Manner in which material will be removed or deposited: backhoe
Describe the nature and extent of the environmental impacts reasonably anticipated resulting
from implementation of the project as proposed. (Use attachments if necessary)
It is anticipated that there will be no significant adverse environmental impacts from the imple-
mentation of the project as proposed. The project is not likely to cause a measurable increase in
erosion at the proposed site or at other nearby locations; the seaward limit of the project will be
similar to that of the structure to the east, which is known not to have caused erosion problems at
the site of the proposed project. It will either prevent or be neutral to the effects on natural protec-
tive features and their functions and protective values.
STATEMENT TO THE SOUTHOLD BOARD OF TOWN TRUSTEES
County ofStzffolk )
State of New York )
I, Aagelo Padovan, being duly sworn, depose and affirm that I am the owner of the property
located on Sound View Avenue, Southold, New York 11971, and identified by Suffolk
County Tax Map No. 1000-135-1-23 & 24.1, and that all work will be done in the manner set
forth in the present application and as may be approved by the Southold Board of Town
Trustees. I agree to hold the Town of Southold and the Town Trustees harmless and free from
any and all damages and claims arising under or by virtue of said permit(s), if granted. I
hereby authorize the Town Trustees or their agent(s) or representative(s) to enter upon my
property to inspect the premises in conjunction with the review of the present application.
Sworn to before me this ...~..o).. ....... day of.~Y,~..i .......... ,2001
ILENE EISNER
Notary Public. State of New York
No. 41-4693907
Qualified In Queens Count~ ,-,
Commission Expires March 30, 20~0~
I01-20 67th Drive
Forest Hills, New York 11375
Presidem
Board of Town Trustees
Town of Southold
Town Hall, 53095 Main Road
Southold, New York 11971
Dear Sir:
Please be advised that I hereby designate and authorize James E. FitZgerald, Jr. of Proper-T
Permit Services to act in my behalf as my agent in the submission and processing of a permit
application for the construction of a single-family dwelling on my property located on Sound
View Avenue in Southold and designated by Suffolk County Tax Map No. 1000 -135-1-23 &
24:1, and to furnish, upon request, supplememal information in support of the application.
14.16-4 (~J~?)--Text 12
$17.21
Appendix C
State Enwlronmantal Quality Review
SHORT ENVIRONMENTAL ASSESSMENT FORM
For UNMSTED ACTIONS Only
PART I'.-PROJECT INFORMATION (To be completecl by Applicant or Project sponsor)
1. APPUCANT/SPONSOR 2. PROJECT NAME
James E. Fitzgerald? Jr. Padovan house
3. PROJECT LOCATION:
Municipality Southold . co.~;,y Suffolk
SEQR
22455 Sound View Avenue
Southold NY 11971
See attached maps.
~ New [] Expansion [] Modificatlo~lte~.tlon
PROJECT DESCRIPTION: Construct single-family dwelling, partially on pilings, with on-
site sewage disposal system and public water.
7. AMOUNT OF LAND Arr,-~:
,.,~ approx O. 5
8. WILL PROPOSED ACTION COMPLY W~ ~hNG ZONING OR O~ER ~I~NG ~ND USE R~TRI~ONS? C~ Y~
~o~'E~ se~b~c~ ~e~eme=~ ~s ~o~ me~.
9. WHAT I~ ~R~T ~ND U~E IN VlOINI~ ~ R~id~t~
Medi~-size private waterfro~'t..r~idences; co~ercial motel.
~ATE O~ L~?
Required: k~SDEC, ' · Southold T~stees
J~es E. Jr. '
.~,,,c~.u~.~r 'oper-T e~ ~,~: 11/29/O1
is in the Coastal Area. and you are a state agency, complete the
Coastal Assessment Form before proceeding with this assessment
OVER
1
~o222 2206
ANGELO PADOVA.
JOSEPHINE PADOVAN
P^¥TOT'ECoastal Erosion Hazard Board of Revi$$
0 ~re ' , ~ ~~~~
~:0 ~ 1,0000 ;~ ~: I, ~ ? 1,0~0 q~l~,' ~ ~0~,
~ !1-~71
THE AREA OF THE PROPOSED I
PROJECT IS CIRCLED
I
HOG NECK
BAY
VICINITY MAP
Application regarding the properv/of
Angein Padovan, SCTM #1000-135-1-23 & 24.1
Represented b~
PROPER-T PERMIT SERVICES
P.O. Box 617, Cutchogue, NY 11935
James E. Fitzgerald, .Ir. 516-734-5800
November 29, 2001
soUND
THE SITE OF THE PROPOSED
PROJECT IS SHADED
TAX MAP
Application regarding the property of
Ang~lo Padovan, SCTM # 1000-135-1-23 & 24.1
Represented by
PROPER-T PERMIT SERVICES
P.O. Box 617, Cutchogue, NY 11935
James E. Fitzgerald, Jr. 516-734-5800
November 29. 2001
"1