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HomeMy WebLinkAbout2778 TOWN OF SOUTHOLD, NEW YORK ACTION OF THE ZO~G BOARD OF APPEALS DATE_..~...~4, 1981 Appeal No. 2778 by application Dated December 29, 1980 ACTION OF THE ZONING BOARD OF APPEALS OF THE TOWN OF SOUTHOLD To North Fork Motel, Inc. 52325 County Road 48 Southold, New York 11971 Appellant at a meeting of the Zoning Board of Appeals on June 18, 1981 was considered and the action indicated below was taken on your ( ) Request for variance due to ]ack of access to property ( ) Request for a special exception under the Zoning Ordinance ~ Request for a variance to the Zonhag Ordinance Art. ~VI Sec. ( ) 100-60 B.(1) (b) the appeal granted ( ) be deEed pursuant to ~ticle .................... Section .................... Subsection .................... para~aph .................... of the Zon~g Ordinance and the decision of the Bnilding I~pector ( ) be reversed ( ) be co~irmed b~ause Public Hearing: 4/23/81: Application of North Fork Motel, Inc., by William H. Price, Jr., Esq., 52325 C.R. 48, Southold, NY for a Variance to the Zoning Ordinance, Art. I, Sec. 100-133, Art. VI, Sec. 100-603(1) (b), Art. XIV, Sec. 100-144F for: (a) permission to change use of premises and (b) permission to establish single-living unit within multi-dwelling (motel) at premises known as 52325 C.R. 48 (North Road), Southold, NY; bounded north by Soundview Ave.; west by Main, Kemper, Zech and Larson; south by C.R. 48 (North Road); east by Soundview Ave. and C.R. 48; more particularly known as County Tax Map~!tem No. 1000-135-2-23. 2. VARIANCE. By resolution of the Board it was determined that (a) Strict application of the Ordinance (would) (would not) produce practical hardship because difficulties or unnecessary SEE ATTACHED SHEETS (b) The hardship created (is) (is not) unique and (would) (would not) be shared by all properties alike in the immediate vicinity of this property and in the same use district because SEE ATTACHED SHEETS (c) The variance (does) (does not) observe the spirit of the Ordinance and (would) change the character of the district because (would not) SEE ATTACHED SHEETS and therefore, it was f~ther determ~ed that the requested variance ( ) be granted ( ) be denied and that theprevlousdecisionsoftheBuildingInspector ( ) be conf~med ( ) be reversed. SEE ATTACHED SHEETS FORM ZB4 ZONING BOARD OF APPEALS the The Decision ldered Thursday, June 18,1 t81: On motion made by Mr. Grigonis, seconded by Mr. Goehringer, following findings and determinations of the Board were made: North Fork Motel, Ineo Appeal No. 2778 This is an appeal by North Fork Motel, Inc. of two determinations of the Building Inspector dated February 13, 1980 and December 22, 1980. By letter dated February 11, 1980, Appellant wrote to the Building Inspector and stated: "We have been builder, owner, operator of the North Fork Motel for the past lg years. As of late (past few years) some of our steady clientele have expressed a desire to purchase a unit outright. Therefore, we hereby apply for approval to do same." On February 13, 1980, the Building Inspector issued a written Notice of Disapproval which st~ated that the proposed use was not ause permitted in the "B" Zone District. An appeatof the February 13, 1980 determination of the Building Inspector was taken to the Board, a hearing held and thereafter on March 12, 1981, withdrawn prior to a determination of this Board. ]By application dated Deeember 17, 1980, ApPellant applied to the Building Inspector for a Certificate of Occupancy for Room No. 23 within the Motel struc- ture. The ]Yui]ding Inspector denied such application on December 22, 1980 upon the grounds that "conveying a living unit of existin~ motel to single ownership (eondominium) does not keep within the definition of a motel (motor vehicle transients) and as such would not be a use permitted under Special Exception." By amended appeal dated December 29, 1980, Appellant appealed the Decem- ber 22, 1980 Building Inspector determination as well as the previous February 13, 1980 determination (the appeal of this Board having been withdrawn on March 12~ 1981). The premises which are the subject of this appeal comprise a parcel of land having an area of approximately 1. 3 acres located at the intersection of County Route 48 (formerly County Route 27) and Sound View Avenue and is located in -2- thc "13" IAght l:~usincss District. The property surrounding the subject premises is zoned for "A" l{l~sidtmlial andAgr~c..ultural uses. There is crectedupon the premises a two-story wood frame motel containing 41 motel rooms and two units with kitchens. The building was constructed in June, 1965 at which time such use was at permitted usc under the then existing Zoning Ordinance. Under the present Zoning Code a motel is a use permitted by special exception [100-50B(4); 100-60 B(1)(b)] in the "B" zone provided that the density requirements of the code are complied with. Applying the present density requirements to the premises would permit 9.44 motel units on the site, rather than the 43 units presently existing. Accordingly, the present use is a pre-existing non-conforming use. In its application to the Building Inspector, Appellant stated it "wishes to con- vert the form of ownership from corporate to condominium. No change of use is contemplated or requested by the application for the Certificate of Occupancy for unit or room number 23 of the motel." Section 100-144 A of the Zoning Code provides as follows: "A certificate of occupancy shall be applied for from the Building Inspector and it shall be unlawful to do any of the following until a certificate of occupancy is issued therefor, to wit~ (1) Occupancy: and use of abuilding erected, reconstructed, restored, structurally altered or moved, or any change in use of an existing building. (2) Occupancy, use or any change in the use of any land. (3) Any change in use of a nonconforming use." Section 100-13 defines a Motel as follows: "A building containing guest rooms, each of which, or each pair of which, has a separate entrance leading directly from the outside of the building with parking space conveniently located to each unit, and wl~ich is designed, used or intended to be used primarily for the accom- modation of motor vehicle transients." The issue in this appeal is whether the contemplated conveyance of a single room in an existing motel from the corporate owner of the entire motel property to an individual for his sole use and occupancy is, in effect, a change of use of the premises. The Appellant contends that merely a change in ownership wilt occur. -3- This Board disagrees. The premises in question are presently utilized as a seasonal motel. Under the Zoning Code a "Motel" is a building containing guest rooms ..... which is designed, used or intended to be used primarily for the aecornmodation of motor vehicle transients." 5Vebster's New International Dictionary, 2nd Ed., defines a "guest" as "any person who lodges, boards or receives refreshment for pay at a hotel, boardinghouse, restaurant, or the like" and "transient" as "passing quickly from existence; of short or uncertain dura.tion;" If the use of a unit in the Appellan['s motel were to be owned by an individual, it is to be expected that such person could occupy said unit during such times and for such duration, and by such of his family and guests as he might wish, since he, as owner, has eom- plete control of the use and occupancy of the unit. The owner is not a"guest" and it is doubtful that he would be characterized as a "motor vehicle transients". This type of use would differ from the present use of such unit by motor vehicle transient paying guests, under the control and supervision of the motel owner. In the opinion of this Board, the use of a room in a seasonal motel for the accommodation of motor vehicle transients is not the same as the use bf such a room by a person who is the actual owner of the motel room. The former' is a use permitted by the Code. The latter is a use not permitted by the Code. Accordingly, it is the decision of this Board that the Building inspector acted properly in denying the applieation for a certificate of occupancy and such deter~ ruination is affirmed and the appeal is dismissed. Vote of the Board: Ayes: Messrs. Grigonis, Douglass, Goehringer and Sawicki. (Absent was: Mr. Doyen) TIlE SOUTHOLD TO~/N C£~m,~" ~"~' -. Tow Tow -4- Chairman 8oard of A~eals-?-' ~MITH~ 1712/KELSTEIN~ LUNDBERO, CRIMMINS AND YAKABOSKI ~. o. BOX 300 Robert W. Tasker, Esq. 425 Main Street Greenport, N. Y. 11944 Re: Dear Mr. Tasker: Appeal May 17, 1983 North Fork Motel, Inc. v. Charles Grigonis, Jr., et al. I am enclosing herewith a photostat of Order on from Judgment and decision slip reported in the New York Law Journal with respect to the above-captioned matter. As you can see, the Appellate Division Second Judicial Department has confirmed Judge Gerard in determin- ing that the change of ownership of North Fork Motel, Inc. from a corporate form to a condominium form is "not violative" use is not changed. of our Ordinance, provided the m~tel We were served a Notice of Order on the 6th day of May, 1983. In order to appeal, it would be necessary to leave from the Court of Appeals. Please let me Enclosure FJY:mo Entry of the enclosed obtain know the Town's thoughts on this matter. KABOSKI cc.: Zoning Board of Appeals/ At a Term of the Appella~,Jivision of the Sups:me Cou~ ~ Stale of New ~k. Second Judicial Depamnent, held in Kings County on April 25, 1983. HON. HON. HON. HON. GUY J. MANGANO, Justice Presiding, DAVID T. GIBBONS, LAWRENCE J. BRACKEN, JAMES F. NIEHOFF. Ass~teJustices North Fork Motel, Inc., v Charles Grigonis, Respondent, Jr., et al., con- stituting the Zoning Board of Appeals of the Town of Southold et al., Appellants. Order on Appeal from Judgment. In the above entitled cause, a proceeding purusant to CPLR article 78, the above named Charles Grigonis, Jr., et al., con- stituting the Zoning Board of Appeals of the Town of Southold et al., respondents in the court below, having appealed to this court from a judgment of the Supreme Court, Suffolk County, entered July 1, 1982, which annulled determinations of building inspectors George H. Fisher and Edward F. Hinderman, dated February 13, 1980 and December 22, 1980, respectively, and a determination of the Z ning Board of Appeals of the Town of .~ ....... Southold, dated June 25, x~ol, wnlch denied petitioner's applications for permission to c~ange the form ofownership of certain premises; and the said appeal having been submitted by Frank A. Isler, Esq., of counsel f~r the appellants and argued by Stephen R. Angel, Esq., of counsel for the respondent, due deliberation having been had thereon; and upon this court's opinion and decision slip heretofore filed and made a part hereof, it is ORDERED that the judgment appealed from is hereby unanimous;y affirmed, without costs or disbursements. Clerk of the Appellate Division. L P/bh 320 E GUY J. MANGANO, J.P. DAVID T. GIBBONS LAWRENCE J. BRACKEN JAMES F. NIEHOFF, JJ. AD2d A - March 14, 1983 North Fork Motel, Inc., respondent, v Charles Grigonis, Jr., et al., constituting the Zoning Board of Appeals of the Town of Southold et al., appellants. Smith, Finkelstein, Lundberg, Crimmins and Yakaboski, Riverhead, N.Y. (Frank A. Isler of counsel), for appellants. Esseks, Hefter, Cuddy & Angel, Riverhead, N.Y. (Stephen R. ~mgel of counsel), for respondent. In a CPLR article 78 proceeding, the appeal is from a judgment of the Supreme Court, Suffolk County (GERARD, J.), entered July 1, 1982, which annulled determinations of building inspectors George H. Fisher !and Edward F. Hinderman, dated February 13, 1980 and December 22, 1980, respectively, and a determination of the Zoning Board of Appeals of the Town of Southold, dated June 25, 1981, which denied petitioner's applications for permission to change the form of ownership of certain premises. Judgment affirmed, without costs or disbursements. ~oning ordinances cannot be employed by a municipality to exclude ~condominiums or discriminate against the condominium form of ownership, :for it is use rather than form of ownership that is the proper concern land focus of zoning and planning regulations (see Town Law, ~ 261; Maplewood Vil. Tenants Assn. v Maptewood Vil.,ll6 NJ Super 372; Bridse Park Co. v Borough of Highland Park, 113 NJ Super 219). Nor does the mere c-h-~nge in the type of ownership result in the destruction of a valid existing nonconforming use (see City of Miami Beach v Arlen King Cole Condominium Assn., 302 So 2d[Fla]' 777; Graham (hurt Assoc. v Town Council of Town of Chapel Hill, 53 NC App 543). Accordingly, Special Term correctly concluded that the conversion of ownership of the subject property from a corporate form to a condominium form is not violative of the zoning ordinance of the Town of Southold, provided the property's present use as a motel remains unchanged. MANGANO, J.P., GIBBONS, BRACKEN and NIEHOFF, JJ., concur. April 25, 1983 NORTH FORK MOTEL, INC. v GRIGONIS 320 E FORK M~OT_J?~N C. proceeding, the appeal la from · Judg- ment of the Supreme Court. guffolk County (Get·rd, J.), entered July 1, leU, which nnnulled determinations of building inspectors George 14. Fisher and Edward F, HInderm&n, dated Feb, lgO0 &nd Dee. ~, les0, ruapectlvely, and · determination of the so·lng Bo·rd M Ap- peals of the Town of ]Southold, dated June 2'3. 1681. which dented petitioner's pllcatlons for permission to change the form of ownership of ,certain premises. Judgment affirmed, without costs or dlebursemeflta. ?,ontng ordtinacrs ca·hot be employed by · municipality to exclude con. demi·lures or discriminate ag·Inet the condominium form of ownerlhfp, for It ti uae rather than form of ownership that la the proper concern ·nd tocuA otis·lng and planning re~utitlone (tee Town l.~w, sec. 2611 Maplewood VII, Ten·nra Mn. v. Maplewood VII., 116 NJ ~quper 37~: Bridge Park Co. v. Borough of HIghiind Park, 113 NJ 8upec 2lO). Nor does the mere change tn the type of ownership result in the destruction of · valid existing noncon- forming uae (see City of Miami lie·oh v. Aries King Cole Cofldontinlum Assn.. 802 8o Sd [Fiaj ?'/?; Ornh·m Cour~ Aa~oe. v. Town Council of Town of C~apel Hilt, 53 NC App 543), Accordingly. gpeel·l Term correctly es·eluded thattha conversion of ownership of the subject property from · corporate form to · eondomlnlum form ia not Violative of the sonldg ordinance o! the Town o! gouthold, proved'ed the property's preecnt Ule II I motel remolnl un- chon~ed. : ! SMITH, FINKELSTEIN, LUNI~BERG, CRIMMINS AND YAKABOSKI June 1, 1982 Robert W. Tasker, 425 Main Street Greenport, N. Y. Dear Mr. Esq. 11944 Re: North Fork Motel v. Southold ZBA Tasker: I am enclosing herewith Decision of Mr. Justice Gerard received this date with respect to the above cap- tioned. To date, no judgment has been served. We will discuss with you, in the near future, the prospect of a successful appeal of this determination. Very truly yours, Enclosure FJY:mo FRANCIS J. YAKABOSKI cc: Chairman, Zoning Board of Appeals Fo,., o,, MEMORANDUM . S'UPREME COURT. SUFFOLK COUNTY NORTH FORK MOTEL, INC., Petitioner, VS. CHARLES GRIGONIS, JR., Chairman, and ROBERT DOUGLAS, GERALD GOEHRINGER, JR., JOSEPH H. SAWI~K and SERGE J. DOYEN, JR., constitu .ng the ZONING BOARD OF AFFEALS OF THE TOWN OF SOUTHOLD, GEORGE H. FISHER, Senior Building Inspector of the Town of Southold and Edward F. Hinderman, Building Inspector of the Town of Southold, Respondents. ESSEKS,HEFTER,CUDDY & ANGEL, ESQS. Attorneys for Petitioner 108 East Main Street Riverhead, New York 11901 31-1061~ BY SPECIAL TERM PART I GERARD, J. S. C. DATED May 25th Index #: 81-14813 Hearing Date: March 4, 1982 1982 ~SMITH,FINKELSTEIN,LUNDBERG,CRIMMINS & YAKABOSKI, ESQS. Attorneys for Respondents 456 Griffing Avenue Riverhead, New York 11901 This proceeding pursuant to Article 78 of the CPLR seeks a judgment of this Court annulling the determination of the Southold Zoning Board of Appeals dated June 25, 1981 denying the petitioner's appeal of two decisions of the Southold Building Inspectors, and directing that the prior notices of the building inspectors and the respondent Board's decision be vacated. Originally this proceeding was heard by Mr. Justice Kelly who directed that a Hearing be held to determine the issues raised in the papers. However, on the date of the Hearing, the parties re-submitted the papers contending that a Hearing was not necessary, a statement with which this Court agreed. Petitioner, a corporation duly organized and existing under the laws of New York State, owns a certain parcel of property located at 52325 County Route 48 in the Town of Southold, New York. These premises are located within the Town of Southold's "B Light Business District" and in June of 1965, a motel was erected for which a certificate of occupancy was issued for a legal "multiple residence." One of the permitted uses in a "B Light Business District" is a motel pursuant to a special exception by the Town Board which was granted in 1965 (See Zoning Code of the Town of Southold Section 100-60(a)(1)(b), 100-50(b)(4)). On or about February 11,1980, the petitioner in letter form requested from the Building Department approval to allow the "steady cliental" to purchase one of the motel units outright. The Building Department by Page -2- inspector George Fisher denied the application on February 13, 1980 on the ground that privately owned units or condominiums are not "a use" permitted in the "B" zoned district, and the petitioner filed an appeal of that determination on March 20, 1980. The petitioner appeared before the respondent Board of Appeals on ~ugust 14, 1980, September 25, 1980, October 16, 1980 and November 20, 1980, and at two of the Hearin~ specifically argued that it was not requesting a change of use only a change in the form of ownership. On December 17, 1980, petitioner applied to the Town Building Department for a certificate of occupancy for motel unit 23, and Building Inspector Edward Henderman denied the request on December 22, 1980 on the ground that "conveying a living unit of existing motel to single o~ership (condominium) does not keep within the definition of a motel (Motor Vehicle Transients) and as such, would not be a use permitted under "Special Exception." On December 29, 1980, the petitioner presented to the respondent Board an "amended appeal petition" which encompassed the appeals of the Town Building Inspectors denials of the petitioner's applications dated February 22, 1980 and December 22, 1980. On March 12, 1981, petitioner withdrew its original appeal of March 20, 1980 but proceeded before the Board to present its position on the amended appeal of December 29, 1980. The Hearing was conducted on April 13, 1981, and the respondent Board unanimously denied the appeal by a written decision dated June 25, 1981, which held that the request was a change of use and not a change of ownership of the subject premises. It is from this decision that the petitioner has appealed for judicial relief. In opposition, the respondents contend that this proceeding should be dismissed both on the merits and because of procedural deficiencies. Initially, the Court will reject the respondents' procedural claims since it is satisfied that despite the lack of sophistication and expertise in presenting the proper formal applications to the Building Department, both the Building Department inspectors and the Board of Zoning Appeals fully comprehended that the nature of the request was to change the ownership of the premises from a corporate structure to individual entities. In its decision of June 25, 1981, the respondent Board stated that "the issue in this appeal is whether the contemplated conveyance of a single room in an existing motel property to an individual for his sole use and occupancy is, Page -3- in effect, a change of use of the premises." Clearly, the dispute was apparent to all the parties involved and the Court will not allow any procedural deficiencies to delay a final decision on the merits. It is clear that the municipality has been granted power pursuant to Town Law 261 through appropriate zoning ordinances to regulate the use of an individual's property to protect the public health and safety and preserve the character of the neighborhood. (See, Town Law 261; Baginsky v. Kesbec Inco, 259 App. Div. 467, 19 N.Y.S.2d 716, aff'd 286 N.Y. 655, 36 N.E.2d 694; Weinrib v. Weisler, 33 A.D.2d 923, 307 N.Y.S.2d 603 (2nd Dept.) aff'd 27 N.Y.2d 592, 313 N.Y.S.2d 407; Dexter v. Town Board of the Town of Gates, 36 N.Y.2d 102, 365 N.Y.S.2d 506; Village of Belle Terre, 416 U.S. 1). In this case, the mere fact that the premises are held as condominiums will not subject them to municipal regulations if the use contemplated is otherwise permissible. "Planning controls, including subdivision approval, cannot be employed by a municipality to exclude condominiums or discriminate against the condominium form of ownership, for it is use rather than form of ownership that is the proper concern and focus of zoning and planning regulation." Maplewood Village Tenants Association v. Maplewood Village~ 116 N.J. Super 372,377, 282 A.2d 428, 431 (Superior Court of New Jersey, Chancery Division); ~ridge Park Co. v. Highland Park, 113 N.J. Super 219,273 A.2d 397 (App. Div.); Township of Washington v. Central Bergen Community Mental Health Center, 156 N.J. Super 388, 383 A2d 119~ (Superior Court of New Jers'ey, Law Division); Claridge House One~ Inc. v. Borough of Verona, 490 F. Supp. 706,712 (U.S. Dist. Court, D., New Jersey). Even if the premises were operating under a prior non- conforming use, the mere change in the type of ownership will not destroy a valid existi~ non-conforming u~.e. (See, City of Miami Beach v. Arlen King Cole CondoMinium Association INK., 302 So.2d 777 (District Court of Appeals of Florida, Third District)). ~n claiming that the change from corporate to condominium ownership is a change of use, the respondents are interfering and restricting the alienability of the petitioner's property. The respondents are in e~sence putting "the cart before the horse." It is possible that this change in ownership may result in a change of use in the future, but the mere transformation to condominium ownership does not per se effect the use of the property. This decision does not in any way impair the municipalities ability or Page -4- right to enforce their zoning regulations as to the property's use pursuant to the traditional exercise of police power. approval property petitioner's applications were in excess of jurisdiction and will be annulled. Submit judgment on notice. It is apparent that the petitioner did not need to seek from the respondents td change ~h~ form of ownership of the subject from corporate to condominium. Therefore, the denials of the the respondent Town's J.S.C. SMITH, FINHELSTEIN, LUNDBERG, CRIMMINS AND YAKABOSKI December 1, 1981 Mr. Charles Grigonis, Jr., Chairman Southold Town Board of Appeals Main Road, State Road 25 Southold, New York 11971 Re: Dear Mr. Grigonis: North Fork Motel, Inc. v. Charles Grigonis, Jr., et al. I enclose herewith for your review copy of Decision received this date regarding the above-captioned matter. As you can see from the Decision, essentially what the Judge said is that he could not decide this case on the papers, and has directed that a hearing be held. Enclosure FJY:mo Very truly yours, cc.: Robert W. Tasker, Esq. Present: Hon Paul Kell Justice NORTH FORK MOTEL, INC., Petitioner, CHARLES GRIGONIS. ~a. in. st~HAIRMAN and ROBERT DOUGLAS, GERA~ GOEHRING~.R, JR., JOSEPH H. SAWICKI, and SERGE J. DOYEN, JR., constitutinq the ZONING BOARD OF APPEALS of the TOWN OF SOUTHOLD, GEORGE H. FISHER. SENIOR BUILDING INSPECTOR of the ~esDondents. Upon the following papers numoerea I to MOTiO~ATE September 10, MOTIONNO.. 15,609 PLTF'S/PET'$ATTY: WILLIAM H. PRICE, JR. 828 Front Street Greenport, NY 11944 1981 'S/RESP'$ATTY: H, FINKELSTEIN, LUNDBERG, CRIMMINS & YAKABOSKI 456 Griffing Ave., P.O. Box 389 Riverhead, NY 11901 read on this motion Notice of Motion/Order to Show Cause and supporting papers and supporting papers ; Answering Affidavits and supporting papers Replying Affidavits and supporting papers ; Other hearing counsel in support of and opposed to the motion)it is, The instant petition is brought before the Court pursuant to CPLR Article 78 wherein the petitioner seeks an order of this Court: 1. Annulling and setting aside a June 25, 1981 decision of the Zoning Board of Appeals of the Town of Southold which denied the petitioner's appeal to reverse two decisions of the Southold Town Building Department; 2. Annulling and setting aside the February 13, 1980 and December 22, 1980 decisions of the Southold Town Building Department; and 3. Declaring that the Southold Town Building Department and the Board of Appeals of the Town of Southold do not have the authority to restrict or regulate the form of ownership of the petitioner's real property or the authority to prevent the conversion of the ownership o~ the petitioner's real property from corporate form to condomini~ form. After a careful review of all the papers submitted for the Court's consideration, this Court finds that this matter must be referred for a hearing, this Court being unable to determine the above issues on the papers herein. Accordingly, upon the filing of a note of iss.ue, the payment of any fees required therefor, together with a copy of this order, the.clerk of Spec. ial Term of the court shall set this matter down for a h,e~ng and ~de. te. rmination s.~b~ec~jo~ course, to the.Justice presidinq~erein. __ Paul Ko~.-~3/158 ; Notice of Cross Motion (and after TOWN CLERK 765-3783 Building Planning 76!i-2660 Board of Appea Town Of Southold TOWN CLERK'S OFFICE Main Road Southold, N. Y. 11971 Pursuant to the General 1,4unicipal Law, Chapter 24, of the Consolidated Laws and m, the . ..Bg.~. 9f .APPg~ ....... of Fhe town of Southold, (agency involvedI proposed zoning action fo fha Suffolk County Plannbg Commission: (check one) Appeal No. New and recodified zoning ordlnance North .......... Amendment fo fha zon[ng ordinance 52325 .......... Zoning changes ..... Special permits .... XX.. Variances Art. I, Sec. 100-13] Sec. 100-144F Location of effected land: ..-~.3.~:5...f;gPP=~Y...! within 500 feet of: (check one or more/ ............ Town or village boundary line ..... ~.. State or county road, parkway 12-B, Sections 239-1 hereby refers the following 2778 Motel, Inc. Road 48 NY 11971 Art. VI, Sec. 100-60B(1) (b); 48 .(~.9~h...~.,.)....~...~g~Yi.~..~.~.,. (1000-135-2-23.) ~resswey County Road 48 (North Rd. ) Art. XIV, Southold ........... State or county ,park or rec .......... Stream or drainage chann lines by fha county or for whi,ch the county has established channel ............ State or county iparcel on which a public building is situated Comments: The appl premises and within mu (North Rd.), Appeals on 18, were denied permission to change use of permission to establish a single living unit ~ (motel) at premises known as 52325 C.R. 48 NY, at a meeting of the Zoning Board of 1981. Date: ...19.81. Title Date received by Suffolk County Planning Commission .............................................. File No ............................ Southold Town o£Appeals Board APPEALS BOARD MEMBERS CHARLES GRIGONIS, JR., CHAIRMAN SERGE DOYEN, JR. ROBERT J. DOUGLASS GERARD P. GOEHRINGER JOSEPH H. SAWlCKI August 19, 1981 Francis J. Yakaboski, Esq. 456 Grilling Avenue Riverhead, NY 11901 Re: Board of Appeals Appeal No. 2778 North Fork Motel, Inc. v. Grigonis, et al. Dear Mr. Yakaboski: Please find enclosed the following documents which I have been asked to forward to you: (a) Photocopies of the Board of Appeals minutes regarding this appeal, from the Regular Meeting of April 23, 1981. Previously forwarded on August 3, 1981, were the Notice of Petition, Petition and Exhibits, which were served upon Charles Grigonis, Jr. as Chairman of the Zoning Board of Appeals. Also enclosed at that time were photocopies of the Board of Appeals files (2) and minutes regarding this appeal. If we can be of assistance, please do not hesitate to call. Enclosures Yours very truly, Eileen Carey, Temporary Secretary North Fork Motel vs Town of Southold Gentlemen: issued the following index number for July 29, 1981 Board of Appeals '~'~ 3n of Please be advised that the Suffolk County Supreme Court has the above action: 81-14813 Zoning Board of Appeals lO Town of Southold Main Road Southold, New York 11971 WILLIAM H. PRICE JR. ATTORNEY AT LAW 828 FRONT STREET GREENPORT, N, Y. I '1944 PHONE: (516) 477-1016 Today' s _Date: ,~Iembers Absent~ if any: ~-1~, )81 Appeal No. 2778 · · Agenda Item/Nlatter of: NORTH~..FORK MOTEL, INC. T}~pe o£ Variance or Appeal: to change UDJ~__0Z~ e~e_ca; ._ Resolution made by: Seco n ded by: ,~Q_C~Stabl ish single-living unit within multi-dwelling (motel). ~Charles ~erqe~Robcrt ~ G~rard ose . r,gon,s oug,ass oear nger (,/) ( ) ( ) ( ) ( ) ( ) ( ) (~/) ( ) Action: ( ) Approve as applied for ( ) Deny as applied for (%/) Deny ( ) Deny without prejudice ( ) Withdrawn without Prejudice ( ) ( ) Approve with the following cOnditions: (¢'.Subject to County Planning referral ) Subject to Plannin9 Board approval ) Subject to D.E.C. requlations ( ) Other: Findings of the Board are as follows: Other: Not Within the Character of the Neighborhood Variance is Substantial in Relation to Code If so, Hardship not sufficient Hardship or Difficulty Not Unique Will set a precedent in the neighborhood Area is already very congested Interests of justice served by denying Granting the Relief Requested is within spirit of the zoning code Relief is not substantial Burden of hardship or difficulty shown and is unique Variance will not change character of the neighborhood Interests of Justice served by granting Vote of the Board: Notes: Ayes: (~/) CG ( ) SD M RD (V~ GG (~/)' 2rS Nay: ( ) ( ) ( ) ( ) ( ) Abstain: ( ) () ( ) ( ) ( ) Absent: ( ) .(q~ ( ) ( ) ( ) ¢, Southold Town of Appeals -14- 23, 1981 PUBLIC HEARING: Appeal No. 2778. Application of North Fork Motel, Inc., 52325 C.R. 48, Southold, NY (W~lliam H. Price, Jr., Esq.) for a Variance to the Zoning Ordinance? Art. I, Sec. 100-13~, Art. VI, Sec. 100-60B(1) (b), Art. XIV, Sec. 100-144F for: (a) permission to change use of premises; and (b) permission to estab- lish single-living unit within multi-dwelling (motel) at premises known as 52325 C.R. 48 (North Road), Southold, NY; bounded north by Soundview Ave.; west by Main, Kemper, Zech and Larson; south by C.R. 48 (North Road); east by Soundview Ave. and C.R. 48; more particularly known as County Tax Map Item No. 1000-135-2-23. The Chairman opened the hearing at 8:52 p.m. by reading the appeal application and related documents, legal notice of hearing and affidavits attesting to its publication in both the local and official newspapers, Notice of Disapproval from the Building Inspector, and letter from the Town Clerk that notifica- tion to adjoining property owners was made; fee paid $15.00. MR. CHAIRMAN: We have a survey ~f the area and County Tax! ' Map showing this property and the surrounding properties. I gue'ss, Mr. Price, you have the floor. WILLIAM H. PRICE, JR., ESQ.: Thank you. I' would like to start out by saying that this-- MR. CHAIR~gXN: Would you use the mike back there, Mr. Price, maybe the people in the back can hear you better. MR. PRICE: Ok. This is not solely an appeal of a decision of the Building Inspector from December, but it is also an appeal from the prior decision of the Building Inspector dated February 13, 1980 and I would like that Disapproval to be made part of this record as well. Are there any objections from the Board on that? MR. SCHOENDEBARE: May I ask, what was the Disapproval in 1980 for what application? ~ MR. PRICE: You have a copy of my petition, don't you? The 6riginal petition which was filed by my clients erroneously requested a 9ariance to the zoning ordinance. We're not here asking for a variance. We're asking for the Board to review the dec~sion of the Building Inspector to reverse that in properly interpreting the zoning ordinance of the Town of Southold. And '%the Building Inspector twice has equated a change of ownership with a change of use. The first request to the Building Inspector was a letter to the Building Inspector from my clients which basically said we want to sell the units off, can we do it. ~nd the Building Inspector said, "No. You can't sell them off because that's a change of use." That was February 13th, I believe it was. The next Disapproval was when I applied on behalf of my client to the Building Inspector asking him to certify that one of the units, specifically Unit 23, was a legal motel room. He then refused that request, and the Notice of Disapproval for that request has q Southold Town B. rd of Appeals -15-. il 23, 1981~ (William H. Price, Jr., Esq.:) ~ been made part of the record. Now I just want the February 13th Notice of Disapproval to be-made part of the record as well in that my petition before you deals with both.!Disapprovals of the Building Inspector. MEMBER GOEHRINGER: Which is the one we have? SECRETARY: Just the most current one, December 22, 1980. MR. CHAIRMAN: Yes. MEMBER GOEHRINGER: I don't think we can take it-without legal counsel's-- (At this point in time the Board members reviewed the file to see which Disapproval was filed with the appeal application and related documents.) MEMBER GOEHRINGER: DO you want us to keep this (February 13, 1980 Disapproval) in the ~ile? MR. PRICE: Well, I'- This ~si -- MR. SCHOENDEBARE: Can I come up? This is not in the notice. ~at he wants to do now is not in the public notice. MR. PRICE: ~xactly. But I did not put the notice in the paper, and my petition-- MR. SCHOENDEBARE: Now we're talking about condominiums, and was here on the variance. MR. PRICE: I don't have a variance application here. didn't draw the notice. I MEMBER GOEHRINGER: Mr. Chairman, there's a question into the audience. MRS. KELLY: the suite? ~ Just one question. Wha~ is this room 23, is that MR. PRICE: No. It's just one of the units. SECRETARY: May I have your name please? MRS. KELLY: Mrs. Henry Kelly. Golden Lane. MR. CHAIRMAN: Then this is an incorrect notice? MR. SCHOENDEBARE: Yeah. The notice doesn't even incorporate what he wants to do now. i MEMBER GOEHRINGER: It's not incorrect based upon what we have. Southold Town of Appeals -16- 23, 1981 MR. SCHOENDEBARE: I'm not saying you're incorrect, I'm just saying what he wants to do now I don't see it in the notice. Do you need it? ~y don't you do just what you wanted to do? MR. PRICE: We are going to do what I wanted to do, but my presentation deals with both of the Disapprovals. They're both based on the same principal that the Building Inspector has the right to control the use of the premises. The Building Inspector has the right to control the location of structures. He has the power to control setbacks and the like, but he does not have the power to control ownership. But I am not going to be limited tonight in my presentation as to the sole issue of him denying a Certificate of Occupancy for one room. My petition which was placed before this Board is dealing With two decisions of the Building Inspector. ~y I came before this Board before and I requested that the first application be consolidated with the, my subsequent appeal. It appeared that I was having a lot of difficulty having a hearing scheduled on the second petition because of the existence of the first'petition. So what I did'~ was withdraw the first petition, but this subsequent petition dea'ls with both of the decisions of the Building Inspector. It doesn't deal with just one of them. · ~ SECRETARY: Now when you say the notice does not cover it, do you mean the legal notice that was in the newspapers? MR. SCHOENDEBARE: Nodded affirmatively. MEMBER GOEHRINGER: The Town Attorney is in the building. We could caucus and we could ask him. MR. SCHOENDEBARE: Yeah, because if we're going to do it I want it to go on the record as opposing it. ~All right. MEMBER GOEHRINGER: Do you want me to see if he's still here? MR. CHAIRMAN: Maybe we better, Jerry. SECRETARY: When these are advertised, no. disapprovals are ever mentioned. And they all revert back to a disapproval usually. What was mentioned was exactly what you were asking. ~R. SCHONDEBARE: That's why I thought we got away from the '~ondominiums and all that and what the Building Inspector does as to legal ownership of land. When I read the notice and thought what you were doing, now we're talking about variance-- but now you're back to the legal ownership. MR. PRICE: No. This is the petition. MR. SCHOENDEBARE: I know, I got it. But that's not what the notice says. SECRETARY: The notice doesn't mention disapprovals. Southold Town B, vd of Appeals ~17- ~il 23, 1981 MR. SCHOENDEBARE: I know. That's why I didn't think we were getting into that, and. I was surprised.~that you did. MR. PRICE: I'm not asking that it be worded any way, I'm asking that this be made part of the record. MR. CHAIRMAN: We'll recess for about 10 minutes. On motion by Mr. Grigohis, seconded by Mr. Goehringer, and unanimously carried, it was resolved to RECESS for approxi- mately ten minutes. (At this time the Board left the room to consult with the Town Attorney in the Town Board Room, and returned within ten minutes.) Motion was made by Mr. Grigonis, seconded by Mr. Goehringer, and carried, to RECONVENE. MR. PRICE: For star~ers I would like to submit to the Board my memorandum concerning this appeal which I would like ta be made part of the record. (Memorandum was entered into th~ file.)_ MR. CHAIRMAN: Thank you. MR. PRICE: Will that be made part of the record? MR. CHAIRMAN: Yes. So moved, so ordered rather. MEMBER GOEHRINGER: Seconded. MR. PRICE: Next, if you would like, I will give a descrip- tion of the premises themselves but however I believe that the members of this Board have seen what exists at the applicant's property. Basically it's a two-story frame motel, and in there there are 41 units with two suites, and I would like the Board just to take administrative notice of what is now existing there, or I will testify to it, whichever way you prefer. MR. CH~%RMAN: Would you repeat that again, Bill, I was thinking and looking at something. : MR. PRICE: Would you like me to testify what's existing ~up there. I'm prepared to do that, but I believe that the whole Boaltd has seen it on numerous occasions and I would like you to take~ administrative notice that there is a motel existing there, there are 41 units in there, motel units, there are two suites; it's located at 52325 now County Route 48; and it's a two-story framed structure painted light green with white trim. Do you want~me to go on or will you take administrative notice. MR. CHAIRMAN: We've all been there. One of the members here would just like to now what 23 is like. Southold Town Bo~ of Appeals -18- 23, 1981 MR. PRICE: Twenty-thre? is like all of the other units. It's approximately 13½ feet wide and 20 feet deep and has a bed, bathroom, what normally is in a motel unit. MR. : Any kitchen facilities in there? MR. PRICE: No, not in 23. MR. CHAIRMAN: Ail right, you can proceed now Bill. been holding you up long enough. We've MR. PRICE: Ok. What were, as I started before, what we're asking for this evening is for this Board, to review the two deci- sions of the Building Inspector, to review the Town of Southold zoning ordinance and based upon that review reverse those two decisions and make a finding that the Town zoning ordinance does not control the ownership of the property. It can control the use of property; it can control the size of the structure; it can control the parking areas, the s~tbacks and the like. But -I want to emphasize, they're not asking for a variance tonight because it's our position that the zoning ordinance of the~Town of Southold does not apply to what the applicant, is proposing to do. What the applicant is proposing to do is merely to change the ownership from a corporation to a condominium. It's our position that the Building Inspector erroneously equated the proposed change o£ ownership with a change of use. The word "condominium" does not mean that there will be dwelling units in there. When this action is taken by the applicant, that being a change of ownership, you will still have a motel there. It will still be run as a motel. The only difference will be the way the motel is owned. There will be individual owners of each particular unit, and they will have an interest in common with the other owners of the common areas of the premises. One thing I would like to point out too is that in the September 22nd, 1980 Disapproval from the Building Inspector. He made up the term called "a living unit." There is no such term in the zoning ordinance. There are dwelling units in there granteQ but we are not proposing to have dwelling units. We are going, to have motel units. What we asked for in that particular request to the Building Inspector was merely for the~Building Inspector to certify to us in writing that one of .the units was a legal motel room. Not that it was a legal k.~welling unit or anything like that, but merely a motel room. - Now these premises were constructed under the Southold Town Building Permit #162 which resulted in a Certificate of Occupancy for the entire premises being issued under #166 on February 27, 1965. That Certificate of Occupancy stated that these premises could be legally used as, and I'm quoting, "a · multiple-residence (motel)," with a maximum occupancy of 175 people. We will continue to live up to the restrictions placed upon the use of the premises by the Town of Southold zoning Southold Town of Appeals -19- ~ril 23, 1981 (William H. Price, Jr., Esq.:) ~ ordinance, and also by the Certificate of Occupancy. I have stated time and time again there is no intended change of use contemplated now or in the future. The owner of the premises is merely going to change the ownership. Since the Certificate of Occupancy here was issued, this structure has been continu- ously used as a motel, not as a dwelling unit, not as anything else, merely a motel. Now you will see it in the memo that t submitted to you that the Town of Southold's power under its zoning ordinance is limited by its enabling act, which is Town Law Section 267 I believe. 261, excuse me. And in that there is no mention whatsoever of the power of the Town to control who owns property. This, for example, let us say that our, the applicant here was going to sell the motel to General Motors. You coUld not jump to conclusion and say they are going to manufacture automobiles at the place; it's merely to General Motors, the legal entity, would be the owner of those premises. Here we are going to have a condominium, a legal entity, o~ning those premises. Now I will point out to the Board that they have in r_espect to the request by the applicant they have[ this Board has'made two declarations pursuant to N.Y.S. Environmental Quality Review Act. It has been determined by this Board that this is a Type II Action. This Board is well aware. They had to make specified findings of fact to so classify the project. Now this evening, I have here to testify before your Board Mr. Richard Pellicaneo He has reviewed the Town of Southold zoning ordinance. He will tell you his qualifications for speaking to you, and at this point I would like to turn the floor over to Mr. Pellicane. RICHARD PELLICANE: Mr. Chairman, do you want me to just go ahead and testify in a narrative form, is that all right? MR. CHAIRMAN: Yeah, it's all right with me. MR. PELLICANE: My qualifications include that I have been a practicing attorney pretty much specializing in real estate since 1959. I am a former chairman of the Real Property Law Committee of' the Suffolk County Bar Association, two years. I have articles published in various professional journals, co-auZhor of an article that appears in the N.Y. Law Journal, which'has ~a circulation of some 40,000 attorneys in New York ',of a daily basis. I'm President and principal owner of a title ~gency, and have been for about eight or nine years. I now am one of th~ attorneys representing a local savings bank. I have in the past represented in real estate matters two of the local commercial~banks. I'am a licensed broker. I am involved as a builder, involved in the subdivision of property in the form of a personal investor, and as an advises to other joint venturers, and I have pretty well been immersed in real estate law as I stated, for over 20 years. At the request of Bill Price, I researched this particular problem both with the Case Law and Southold Town Bos of Appeals -20- ~ril 23, 1981 (Mr. Pellicane continued:) New York State, the Opinions of the Attorne~ General, the Depart- ment of State, and other administrative agencies, and also the Zoning Ordinance of the Town of Southold. The thrust of what I am here to give an opinion on, I believe, is that the change in ownership of this motel from its current ownership into what we term as a condominium is nothing more than a change in ownership and it is not in any way, shape or form a change in use. The Zoning Ordinance of this Town does not include reference to condominiums for the simple reason I believe that it was first enacted in 1957 and condominiums were not a recognized form of ownership in this State until approximately 1966. The same ques- tion that is before you has arisen in other Towns on Long Island; I am sure you are aware of some of them. If the Building Inspector's decision is allowed to stand, what you would have as a result is that the form of ownership known as the condominium would be precluded anywhere in the Town; and absent a good reason for that pursuant to a Master Plan, and that would be something to do with protecting the help of the gener$1 public, that would work an unconstitutional deprivation of property without due process. That without qQestion I believe as Bill Price pointed out, this ownership could go to General Motors. It could go into a cooperative. It could go to a corporation, a partnership, or a condominium, and none of those things negate the ~se as a motel. I read the papers on the petition, and on the rejections by the Building Inspector, and the wording of a use for transient visitors comes up repeatedly. We can still have this motel utilized by transients if it was owned in a condominium form as is common in Florida where people buy condominium units, use them one or two weeks of the year and rent them out the rest of the year. The fact that the ordinance refers to a motel as something designed for use by transients is, I believe, a reference to the type of the zoning, that is, separate bedrooms with exterior entrances and as some of the members of the Board I think are as old as I am, and they will remember that 35 years ago there were no motels. This is some- thing new and differs from a hotel in the effect that you have separate entities. If the Building Inspector is correct that the motel, this motel or any motel has to be available for transients, then a logical conclusion of that is that if it's closed during the winter, you're violating the Code and therefore . .ia violation should issue. And I think that we all agree that that would be observed. I have a brief here referring, and I will only go into it superficially because it is getting late, referring to some of the opinions that have been prevalent in the State, which basically define a condominium only as a type of ownership the way the property is held and not as a 6hange of use. Now the condominium law was enacted as I said around 1967, and has been revised from time to time, the latest one being in 1980. The Southold Town of Appeals -21-. April 23~ 1981 (Mr. Pellicane continued:) opinions of the Attorney General and the Department of State are such that their authority precludes and_preexmpts the authority of the local towns and villages, ~nd that it is not within the capacity of the towns and villages to consider this matter of zoning. I will go through this very briefly, as I say, I don't want to hold a lot of people up with a lot of detail. I would just like to quote a couple of things. The Town of East Hampton a while ago tried to interpret a condominium application as a change of use. The Attorney General of the State of New York rejected that on the grounds that the conversion was not a change of use and (b), only the Attorney General be, specific and abling statutes had the authority to regulate conversions. It goes on with an opinion by the Department of State, which says the conversions are not changes in use. There are several cases in adjoining jurisdictions, States oth~er than New York, that specify a condominium is not a change in use. I would like to go into three more items. ~. ~ It's a general rule of law, and I don't want to get into something esoteric because this is not a court of law. But there's a general law that if there's a question on the applica- tion of the law and then the legislature acts and does not change the law, then it is held that that action by the legis- lature in not changing the law is consent to what is going on before. And with the changes in the condominiumflaw 1980, 1978, without adding anything, is to subject it to local ordinances is in effect authority by the State Legislature that the correct interpretations have been given, and it is a change, not a use but a change of ownership only. There is a thing called the Uniform Condominium Act which is pertinent to people who pass laws on the State level as a model. And almost every law in this State in my profession and lifetime has been changed to comply to conform more with Uniform Act~, and the Uniform Condominium Act states, "...a zoning subdivision may not prohibit the condominium form of ownership or impose any requirement upon a condominium .... " And it goes on., there is more to this brief, if necessary I can produce it. to writing and submit it to the Board, or the ~Board's attorney. Are there any questions from anyone? MR. CHAI~4AN: Thank you very much. Could one of you gentlemen in the back open up the doors? It's getting very warm in here. It might help a little bit. MR. PELLICANE: Did I do that? MR. CHAIRMAN: No. It started before you did, and if there is anyone here on the Schoenhaar Hearing -- they came Southold Town Be of Appeals -22- April 23, 1981 with a notice, letter today that they have to have it recessed until the 14th of next month. I forgot about it before, but I just noticed it. Ok, Bill, do you have ahything else? MR. PRICE: Just in summation and I realize it has been said over and over again, but all we're talking about is chang- ing the ownership. We're not talking about changing the use, the use as it is now conducted at that premises is absolutely legal and conducted pursuant to the terms of the zoning ordinance and in accordance with the Certificate of Occupancy that has been issued by the Town. We are asking for an interpretation by this Board of the Zoning Ordinance, that the Zoning Ordinance does not preclude the ownership of these premises in the form of a condo- minium. We are asking this Board to reverse the two decisions of the Building Inspector for two reasons: Number (1), that the Building Inspector erroneously equated a change in ownership with a change in use, and secondly that the Building Inspector by issuing these notices of Disapproval has acted beyond the scope of his authority. ~ ~ MEMBER SAWICKI: Mr. Price? You could end up with 41 separ- ate owners, right? MR. PRICE: Yes. MR. : .And who controls that? MR. PRICE: I assume that this is a normal small business corporation, and normally under those circumstances it would have 200 shares of stock which would be authorized. So right now we could have 200 different owners of the property. MEMBER DOUGLASS: Mr. Price, what if any are the terms that agreed on for the new owners? MR. PRICE: Do you mean like bylaws and the like? MEMBER DOUGLASS: Nodded affirmatively. MR. PRICE: Those have not yet been submitted to the Attorney General, the fellow that has to pass on those. If it~passes before the Attorney General then they're all iight. We cannot sell a single unit there before we have made the full disclosure to the New York State Attorney General, and he · has a~proved the prospectus which is a disclosure intrument which describes each and every unit, describes what the bylaws are, ~hat the estimated costs will be, the upkeep, the mainte- nance7 how the place is going to be run and the like. But as I emphasized this, no matter what the actual particulars of that prospectus is we are going to run, and my clients rather will be running this motel as a motel. That would be set forth in the prospectus. It's not going to be a dwelling unit. It will have to be made perfectly clear in that they are not going to be dwelling units, that they will be motel units. And that's q Southoid Town rd of Appeals ~ -23- April 23, 1981 the short and long. MEMBER DOUGLASS: One'other question.j~..If it goes through up there and so on, who would be doing the renting of the rooms for the clients? MR. PRICE: Under normal circumstances there is a manage- ment firm that would run the motel. MEMBER DOUGLASS: Thank you. MR. CHAIRMAN: Anyone else to speak for it? EDWARD HOFFMAN: No, I wanted to ask a question. MR. CtIAIRMAN: May we have your name please, sir? MR. HOFFMAN: My name is Edward Hoffman and I live in Mill Colony. The question I want to ask ~is, they envision a manage= ment corporation. Who'w6uld that management corporation be? Would that be the individual owners, Mr. Price, the 41 units and the two larger units, or would that be a separate corporation? Who would the management corporation be? MR. PRICE: I don't believe that that has been decided by the applicant yet, exactly how it's going to be managed. However, no matter how it's managed and by whom it's managed, they are still going to have to comply with the Town of Southold zoning ordinance, building code and the occupancy requirements. MR. HOFFMAN: In other words, it does differ in that respect as you see it now from the present management which you have for that unit? MR. PRICE: No more so than if we turned around and sold the corporation to someone else. MR. HOFFMAN: You mean, you would have the same managements? MR. PRICE: If we turned around, if I sold the motel to you, you would be the manager, or you could hire someone to go in and manage-- MR. HOFFMAN: With 43 owners there's a difference. They all '.have a voice in the choosing in Zhat management, don't they? MR. PRICE: I don't know how it's going to work yet or not. They might, they might not. It's my understanding that there is usually a management firm that ia set up to the first few years for the condominium. And they buy with that management, but that has not yet been determined by the applicant. MR. H©FFMAN: I think that's terribly important. all I had to comment on. That was Southold Town of Appeals -24- April 23, 1981 MR. CHAIRMAN: Thank you. MR. GASSER: I'm Mr. Gasser of the North Road. I'd like to ask Mr. Price, that if so intent on selling a unit, why don't you just sell shares in the corporation; but by selling individual units you're actually changing the usage. If they want to leave it as a motel, sell the shares of the corporation, 41 or whatever they want. MR. PRICE: I'm going to defer that question to Mr. Pellicane. MR. PELLICANE: What the gentleman is describing really is a cooperative, and yes I think they could do that. They could sell it to 41 different people as stockholders and you would have less control than you would under a condominium situation. Similarly they could sell it to 41 or 43, whatever the number is individual people, each having a 1/41st or 1/43rd interest and then you would have a situation that this gentleman is afraid of. The thing here is that when you~ have a condominium, you h~ve to be approved by the Attorney General, who is so restrictive and so'particular on the things that you are concerned about, that you're going to end up probably with due deference to the~present owner, probably end up with better management, more closely controlled management by State Law with criminal sanctions than you do now where you have it owned by a corporation or an individual. MR. GASSER: Sir, I own a condominium so I know a litttle bit about it. And there's like over a million in Florida, but there are none that is a motel room. If they had hotels or motels, they're selling timesharing. They're not selling as condominium. I don't know as far as you -- MR. PELLICANE: Well, the same thing applies. Timesharing concept is free of any regulations, and if this Board turns this owner down perhaps you will have timesharing which will be very much to the detriment Qf the community because then there will be no control. I don't know what happens where you are in Florida, but in New York State there are condominiums made out of~otel rooms and they work very well. = MR. GASSER: I want to ask you another thing. What is ~ to stop an individual owner from going entering into a sublease .~~°n timesharing plan wi~-- MR. PELLICANE: There's nothing to stop the owner now from doing that either. MR. GASSER: But he can do it? MR. PELLICANE: Sure. MR. CHAIRMAN: Mrs. Kelly? $outhold Town of Appeals -25-. April 23, 1981 MRS. KELLY: I just have a question. If the Attorney General sets the specifications for what a~condo should be like, what are the physical properties tha~.~a condominium should have as compared to a motel room? If they're using the terms interchangeably, it's a motel unit but it will be a condominium. Is a condominium only a bed and a bath? I never thought it was. I just wanted to know what the Board had to say about what they will require condo's to have and what the Attorney General is saying throughout New York State what it is to consist of physically inside the roof, to deter- mine condominium. MR. PRICE: I'd like to answer that. MR. CHAIRMAN: Mr. Price. MR. PRICE: I believe that some people here are getting the connotation from the word "condominium" that all condominiums are apartments where people live in.~ That is not the case. A~ I've said before, a condominium is a form of ownership. You have condomini~n office buildings. You have condominium marinas where people own slips in the marinas. It is just the way that~ the property is held. There is a difference between owning property individually and owning prcperty in the corporate form, just as there is a difference between owning property as partners or tenants in common as opposed to condominium. The word condo- minium does not ~ean that they're going to be apartments. These are going to be motel rooms. They are going to be subject to all of the use restrictions of the Town of Southold, all of the occupancy requirements, everything else. And I believe that for anyone to extrapolate beyond that to assume that people are going to be living in these places, they are not going to be living in these places. When the disclosure is made to the Attorney General, they'regoing to know that they are buying a motel room. They are going to be, it is going to be disclosed to them that the Town of Southold zoning ordinance, Chapter 100 of the Code of the Town of Southold prohibits these units from being a dwelling unit. They cannot live there. I mean, it's just like everybody owns an automobile that can go over 55 miles an hour. You know, you can go out and speed and go 85 miles an hour, it's against the law -- and then if you get caqght by the police you're in trouble. It's the same with these units. You're not, we're not selling them to be lived '~.in. If someone lives in them, they're breaking the law. They could be breaking the bylaws, everything. So ~once again, they're going to be subject to,the control of the Town for use and occu- pancy and everything else. But as far as how it's owned, the Town doesn't have the power to say how it's owned. MEMBER DOUGLASS: Mr. Price, I'd~like to ~ask you a question before you sit down. Didn't your expert just say that no controls can be put on by local on a condominium? MR. PRICE: That's!right. On the form of ownerships is what he has stated. Not necessarily on the use of the premises. Southold Town of Appeals -26- April 23, 1981 (Mr. Price continued:) Do you, would you want to e~plain further ~him? MR. PELLICANE: Yes. I think he did. That's on the form of ownership. Again I want to go back to the comparison, if this man wants to convey the motel to you and myself, the Town has no say in that. But the usage of the motel, that is, that no one has a kitchen in the rooms and things of that nature, is subject to the Code of the Town and subject to policing by the police and by the Building Inspector of the Town. There's a distinction between ownership, he can sell it to me and to you and anyone he wants, and the Town, no authority, the Town, the State can't really control that, the control under the condominium is a very strict control over and above what you would have if you gave -- the ownership to you and to me. The usage remains with the Town of Southold and its Building Inspector and its police department. And no one can change that. J. SCHOENDEBARE: I'~ getting a little confused because wheat I read as far as our notice is concerned and the request and what we're talking aboutI gets to be two different things. As I see the notice that was published we're talking about for a variance for the permission to change the use of the premises and permission to establish single-living units within multi- dwelling motel at the premises. That's how I read it. And as I read the sections that we're talking about in that application, we're talking about a variance under the definition section of the Code, and I assume we're talking about what constitutes a dwelling unit, you want a variance for that. You want a variance for motel because that's a definition in there also. And we talk about 100-50(B)(1)(b) and then we're talking about a motel again. As I read the notice we want variances for these things-- a use variance, etc. That's how I read the notice and that's how I assume this is what it's about. They're now before the Board, and we're talking about and it's clearly indicated they're not seeking that. So what's in the notice and what's in the petition is not what we're talking about here this evening. And I'm not too sure we can d~ or you can talk about what we're discussing t~his evening based on what I see in this notice, and the request[ They're two different things~ -They said over and ove_r again they're not going to change the use. So if they're not changing the use then all this request in here doesn't follow Lbecause they/re not going to change_ the use. So any request 'should be dehied. They!'ve indicated that constantly. They've also indicated that with regards to the ownership or establishing a condominium it's out of their han~s with the Zoning Board; that is, it's in the hands of the Attorney General. Then again if it's out of your ~ands we're not too sure why we' re here. We' re indicating b~cause the Building Inspectors denied a C/O for one motel unit, Which was in his perogati~e to do so. But based on the notice an'd based on the conversation, you can't decide what's going to be a~ condominium because that's up to the Attorney General, and they're not here requesting usage and they told us Southold Town of Appeals -27- April 23, 1981 (Mr. Schondebare continued:) over and over again. So I'm again getting confused as to what the petition is about and what we're arguing about this evening. Thank you. MR. CHAIRMAN: Anyone else to speak against this? MR. SCHONDEBARE: I would like to have a loaded audience back there, loaded. I would take no credit for that. (The audience had applauded at the end of his statement.) MR. PRICE: I would like to point out to the Board that the petition that I presented to this Board states at the top that it is an appeal. It does not state that it's a request for a variance. Your Section 100-121 of the Code of the Town of Southold, paragraph (a) says that this Board shall listen to appeals and they say to hear and decide appeals from and review any order, requirement, decision or determination made by the Building Inspector. Here we have w~at is clearly an erroneous~ decision by the Building Inspector. To have a variance, we have to say that the zoning ordinance applies to our action. The zoning ordinance does not apply to our action. That's wh~re the= Building Inspector made his mistake. Now the question has been raised, why are we here. From the outset and this Board knows this, I have said that we wanted to proceed with cooperation with this Town Board, with the Zoning Board of Appeals and with the Town of Sout~old in this. We wanted to be up front with everything. And what we would like to do is to be able to go to the Attorney General and not have any possible clouds on what we're doing. I'm sure that if we go ahead and proceed before the Attorney General, now this Board, or the Building Inspector, or the Town Board is going to write to them and say, "Hey, these guys are supposed to be getting some sort of relief from us. They haven't gotten it." The Attorney General is going to write back and say, "They don't need this. " But we wanted to come in here and cooperate with everyone. NOw what we are asking for, what we are asking for is for this Board to interpret the zoning ordinance to state that the zoning ordinance does not apply to the form of ownership. That's what we're requesting to reverse those two d~cisions by the Building Inspector. MR. CHAIRMAN: Anyone else? Your name, sir. HENRY GETZ: Henry Getz out on the North Road in Southold. ~Well, they talk about at present the occupancy rate is 175 people --that is with a managing agent on the premises. NQW if this was sold off to 41 separate people or however many, and now it's going to be operated by an absentee operator, actually, in practice probably the only person ~that's going to be actually a representative of that managing age.nt is going to be a mainte- nance man or something like that. They're not going to have somebody that will rent rooms when everybody has their own keys to come in. Now if you pull up there, and the people are actually the owners of the motel it presently is, they're not going to rent Southold Town B~ of Appeals -28- April 23, 1981 (~[r. Getz continued:) to more than 175 people. But who is to say that, how many people are going to be there when .every person that comes has their own key? Who is to say how many people are going to be in those rooms? Who is going to enforce that? Maybe this man walking around with a screwdriver? Or is it going to be put on the Town of Southold, that they're going to have to send somebody over there to go around physically to count like how many people are actually in the rooms? It doesn't sound here like they're doing something that's good. It sounds more like their grandmother's going to become a public nuisance, a nuisance of the people that live around them, a nuisance that has drained on the resources of the Town to enforce something which is going to become practically unenforceable. It doesn't sound like they're asking for something there. They're saying there's nothing you can do about what we intend to do, but we have to go through this stage because we are going to go on into Albany but we will get what it is we want in the first place. It seems like there's a loophole in the law because it's something new. Something that has never come up before. And the Town is going to remise because they don't really have this covered in your Code. Probably the State is re~[se because we're talking about the present condominiums that are put up is inside the City -- we're not talking about a rural area, wherein something like th-is where it's a wooden-framed dwelling, which could become quite hazardous. Presently it's open Memorial Day to Labor Day. Who is going to enforce that if there's nobody there at the different times when everybody has their own key? It sounds like what is being perpetrated-- a nuisance. MR. CHAI~N: Thank you. Mrs. Kelly? MRS. KELLY: I'm so confused. You know. I'm always referring to the condos over on the bayside that sold right past that Crescent Beach riding stables across from the Island's End Golf Course. Friends of ours bought a condo there, and I'm confused as to what are the requirements of this Board that tells you what consists of a~condo. Greenport is still part of Southold Town, and they have a regular little living room and a kitchen and they have, of course, it was a motel at one time if you know which area I'm talking about. I don't know the name of the motel. But that's a condo. That's what I consider a eondo, and it's controlled by residents themselves -- they created a Board and they have a say as to what goes on and they limit things there. I'm really afraid of Zwhat's going to happen here, because I'm going to take pictures of some with my polaroid camera, and I'm going to show you there are more than 175 people there, because we have to put up with it. We have beach funds there-~ we have to put up with it. They're fishing poles over our heads, the boats across our toes. it,s unbelievable. The cars are parked all over, and there it is supposed to be controlled .with owners of the motel on the residence-- I mean living might there. What's going to happen when they're all independen~t owners ahd there is no control? What concern-- is this going to be a little dumpy town? I'm just a very concerned resident. Southold Town of Appeals ,29- April 23, 1981 MR. CHAIRMAN: Thank you, Mrs. Kelly. I have a letter here that I am going to read in now that's from..one of your neighbors.. down there, Mr. Kempner: ...March 5, 1981 ...With respect to the hearing on appeal application (No. 2684) of the North Fork Motel, Inc. for a Variance to the zoning ordinance for permission to change the existing motel use to privately-owned units (or condominium) use in a B Zone, I would like to have the following comments noted in your final determination: I, Stanley K. Kempner, owner of a summer home that adjoins the west boundary of the North Fork Motel, do not object to the selling of the motel as a condominium with privately owned units. However, I insist on some sort of control over the transaction and subsequent operation. This means: ~ 1. 'The number of units would be limited to 15 9r 20 units; with a maximum number of '20 units. ~ 2. Each unit would have to have at least a separate bedroom, kitchen and living room area (also a bathroom). 3. EaCh unit would be limited to one-family occupancy. 4. A fence would be provided between the motel (condominium) and the property on the west. The fence to be a minimum of a six-foot stockade type fence or its equivalent. 5. A professional condominium management corporation would be established that was funded by the tenants and was legally responsible for: (a) Building maintenance (b) Grounds maintenance (¢) Beach, deck and stairs maintenance (d) Cesspool maintenance (e) Administering the conduct of the condominium in a manner that is in keeping with the quiet rural neighborhood that it is a part of~ Thanking you for the opportunity to comment,. I am Very truly yours, /s/ Stgnley K. Kempner .... Southold Town Bo of Appeals -30- April 23, 1981 MR. CHAIRMAN: Is there anyone else here to speak against this application? ~ ALICE LARSEN: I want it to go on record -- Alice Larsen -- as saying that I wouldn't like to see anything done until you find out how the management starts or who is going to take it over as manager before they get even the first one sold. MR. CHAI~N: Well, if it ever should come about, I think the Attorney General will see to that. Yes, your name please? MRS. SCHWEIWET: Mrs. Schweiwet, Mill Colony. What has the Attorney General to say sitting up in Albany about what we have to put up with down here? He has no knowledge of what our town wants. Now why should he have jurisdiction to say so. Does he? MR. CHAI~[AN: Well,~he has jurisdiction. to ~e notified of the problem. He just has MR. R. GASSER: As far as our Town Attorney, is he well prepared to handle this case? MR. CHAIRMAN: He's got a big smile on his face right behind you. What was your name, sir? MR. GASSER: Richard Gasser. SECRETARY: Thank you. MR. CHAIRMAN: Anyone else have anything more to say on this before we call a halt? MRS. B. GASSER: B. Gasser, North Road. Is this supposed to be all year round if they sell it as a condominium, right? Is it just supposed to be six months? MR. CHAIRMAN: No, condominium the more I read or hear about it, I mnderstand it's just a form of ownership actually. It could be a motel that's only open three months of the year maybe, but it's owned by several people. -- MRS. GASSER: If they have a d~ed though, they can come all year round, right? MR. CHAIRMAN: Oh, sure. MRS. GASSER: And the heating and water wouldn't work. MRS. : Do they have heating in that motel? They would have to put heat in. But I can't understand how they can call a bedroom and a bathroom a condominium. I have a condominium in Florida -- I can't understand that. He doesn't have any living room, any kitchen, how are those people going to cook. And they Southold Town BoaOof Appeals -31- April 23,1981 can't say. they're not going to have a dwelling. Bull! I don't believe that. ~ MR. CHAIRMAN: I'll offer a resolution closing the hearing and reserving decision on this. MEMBER SAWICKI: Seconded On motion by Mr. Grigonis, seconded Mr. Sawicki, it was RESOLVED, to close the hearing and reserve decision in the matter of North Fork Motel, Inc. in Appeal No. 2778. Vote of the Board: Ayes: Messrs. Doyen, Douglass, Goehringer, Sawicki and Grigonis. PUBLIC HEARING: Appea! No. 2812.~ Application of Roy C. Schoenhaar, 315 Wyckoff Avenue, Brooklyn, NY (by Gary Flanner Olsen, Esq.) for a Variance to the Zoning O~dinance, Art. I~I, Sec. 100-31 and Art. VII, Sec. 100-71 for approval of insufficient area and width of two parcels in a three-lot proposed subdivision, and approval of access pursuant to New York Town Law Section 280-a. Location of property: South side of Main Road (S.R. 25), Mattituck, NY; bounded north by S.R. 25, west by Matt Agency, Jarzombek, Roth and others, south by Mellender, east by Pumillo, Hallock, Steinhart, Jackson and Bilianos. County Tax Map Item No. 1000-143-2-33.2. The Chairman opened the hearing at 10:12 p.m. by reading the appeal application and related documents, legal notice of hearing and noting affidavits attesting to publication in both the local and official newspapers, Notice of Disapproval from the Building Inspector, and letter from the Town Clerk that notification to adjoining property owners was made; fee paid $15.00. MR. CHAIRMAN: Is there anyone here wishing to speak for this application? (Negative) Is there anyone here wishing to speak against this application? (Negative) On motion by Mr. Grigonis, seconded by Mr. Goehringer, it was RESOLVED, to recess the matter of Roy C. Schoenhaar, Appeal ~. 2812, until the next regular meeting of this Board, to wit, Ma~ 14, 1981. Vote of the Board: Ayes: Messrs. Doyen, Douglass, Goehringer, Sawicki and Grigonis. Motion was made by Mr. Grigonis, seconded by Mr. Goehringer, and unanimously carried, to set the next regular meeting of this Board to be Thursday, May 14, 1981 at 7:00 o'clock p.m. to be North Fork Motel Dear Linda: 5, 1981 Enclosed please find my check in the amount of $4.50 in payment for the minutes of the last meeting of North Fork Motel. Thank you for your courtesy and cooperation in this matter. Mrs. Linda Kowalski ?O Southold Town Board of Appeals Main Road Southold, New York 11971 Very truly WILLIAM H. PRICE JR. ATTORNEY AT LAW COUNTY OF SUFFOLK DEPARTMENT OF PLANNING (516) 360-5513 LIRE: E. KOPPELMAN June 3, 1981 Town of Southold Board of Appeals Applicant: Appeal No.: North Fork Motel, Inc. 2778 Gentlemen: Pursuant to Sections 1323 to 1332 of the Suffolk County Charter, the above referenced applicatior~is not within the jurisdiction of the Suffolk County Planning Commission. Very truly yours, Lee E. Koppelman Director of Planning Gerald G. Newman Chief Planner GGN:Jk *for an interpretation and/or determination as to the applicability of the zoning ordinance. If a variance and/or special exception is being sought, please resubmit with findings. HAUePAUG,.~.I..N~W YO"K 11788 TOWN CLERK 765-3783 Building Dept. f Plannlng Bd. 765-2660 Board of Appeals Town Of Southold TOWN CLERK'S OFFICE Main Road Soufhold, N. Y. 11971 Pursuant to the General Municipal Law, Chapter 24, of the Consolidated Laws, Article 12-B, Sections 239-1 end m, the of fha town of Southold (agency involved) proposed zoning action to the Suffolk County Planning Commission: [check one) N. Y. hereby refers the following New and recodified zoning ordinance ......... Amendment to the zoning ordinance ........... Zoning changes ........ Special permits Location of affected land: .................................................................. within 500 feet of: (check one or more) ' ........... Town or village boundary line ............ State or county road, parkway or expressway ........ State or county ,park or recreation area Stream or drainage channel owned by the county or for whl.ch the county has established channel lines ............ State or county owned .parcel on which a public building is situated Date: ............................. (signed) Title Date received by Suffolk County Planning Commission ................................................. File No A'VFORNEY AT LAW 828 FRONT STREET GREENPORT. N.Y. 11944 Phone (516) 477-1016 April 29, 1981 Mrs. Linda Kowalski, Secretary Southold Town Board of Appeals Southold Town Hall Main Road Southold, New York 11971 Re: Application of North Fork MOtelr Inc. Dear Linda: Please send me a copy of the minutes of the hearing held on the subject location on April 23, 1981, when same are available. Please send your statement for same or contact me to tell me how much to pay for same. Very truly yours, Will~~r. WHP:kam APPEAL NO. 2778 before the ZONING BOARD OF APPEALS of the TOWN OF SOUTHOLD SUBMITTED BY WILLIAM H. PRICE, JR. ATTORNEY FOR APPLICANT NORTH FORK MOTEL, INC. 828 FRONT STREET GREENPORT, NEW YORK 11944 (516) 477-1016 APPLICANT'S PROPOSED ACTION The applicant, NORTH FORK MOTEL, INC., intends to change the form of the ownership of the premises owned by applicant at 52325 County Route 48, formerly County Route 27, from corporate to condominium. There is now a motel owned by applicant in corporate form at the subject premises. The current use of the premises as a motel is a legal and approved use at that location by the Town of Southold. The result of applicant's proposed action, would be that the motel would be owned in the form of condominium. The applicant does not intend and is not contemplating a change from or an expansion of the current use, a motel. Also, the applicant does not intend and is not contemplating any structural changes to the existing building. THE BUILDING INSPECTOR ERRONEOUSLY EQUATED THE PROPOSED CHANGE OF OWNERSHIP WITH A CHANGE OF USE 11, 1980, By letter dated either February 5, 1980 or February the applicant stated as follows: We have been the builder, owner, operators of the North Fork Motel for the past 16 years. As of late (past few years) some of our steady clientele have ex- pressed a desire to purchase a unit outright. To be perfectly honest, we don't have the slightest idea of the legalities involved. 1. Is it feasible? 2. If so, what would the format or procedure be? 3. How would local ordinances, zon- ing, etc., affect such a project? The Building Inspector replied by notice of dis- approval dated February 13, 1980 stating: ...Please take notice that your application dated (letter) February 11, 1980 for a permit to change "use" at the premises located at 52325 County Road 27, 22400 Soundview Avenue, Southold, is...returned herewith and dis- approved on the following grounds Existing motel use with 41 guest rooms and 2 units with kitchen units (1 for manager and 1 suite) to privately owned units or condo- miniums "use" which is not listed as a permitted use in this "B" zone district. Signed George H. Fisher, Senior Building Inspector Motel (Guest rooms primarily for the accomodation of motor vehicle tran- sients) motel is permitted in B zoned district .... As the Board will note, the applicant asked the Build- ing Inspector if ownership could be changed, and the Building Inspector replied that the use could not be changed. It appears that the Building Inspector erroneously equated the word "condominium" with a type of use. The word "condominium" is defined in several sources as follows: ...The ownership of single units in a multi-unit structure with common areas and facilities .... American Law of Zoning, Anderson, 1977, ~16.11 -2- ...Real estate, portions of which are designated for separate owner- ship and the remainder of which is designated for common ownership solely by the owners of those por- tions .... Uniform Condominium~ct, ~1-103(7) ...A condominium is a system of ownership of real property whereby a parcel of real estate, its build- ings and other improvements, either existing or to be created, are owned by more than one person. Each owner has two separate and distinct real property interests - fee simple own- ership of a unit...coupled with an undivided interest, together with all of the other owners of units in the project, in the common element .... Warrens Weed New York~ Real~ Property ~101, Condominiums The applicant does not propose a change of use. The structure on applicant's property will continue to be used as a motel. In fact, the Building Inspector has stated that "motel is permitted in "B" zoned district", Notice of Disapproval dated February 13, 1980. Thereafter on December 17, 1980, applicant applied for a certificate of occupancy for Room No. 23 at applicant's motel. This application stated: ...As you are also aware, the owner wishes to convert the form of owner- ship from corporate to condominium. No change of use is contemplated or requested by the application for the certificate of occupancy for unit or room #23 of the motel. The request is specifically for a cer- tificate of occupancy for unit or room #23 with the occupancy restricted to the use of "the more or less temporary abiding place" of "motor vehicle transients" .... -3- The Town of Southold Building Inspector thereafter refused to certify that Room No. 23 was a legal motel room and, again, erroneously equated a change of ownership with a change of use stating in the Building Inspector's Notice of Disapproval dated December 22, 1980: ...Conveying a living unit of exist- ing motel to single ownership (condo- minium) does not keep within the definition of a motel (motor vehicles transients) and as such would not be a use permitted under special excep- tion .... In the aforesaid Building Inspector's Notice of Dis- approval dated December 22, 1980, the Building Inspector continued to act beyond the scope of his authority and, in addition, attempted to formulate a new term, "living units", which is not contained as a definition within the Code of the Town of Southold, Chapter 100, Zoning. As is noted in the aforesaid Notice of Disapproval, the Building Inspector noted as the source of his authority, the Zoning Ordinance of the Town of Southold. Nowhere within the Zoning Ordinance of the Town of Southold is defined the term "living unit". The Building Inspector is without power to make up terms not contained within the Zoning Ordinance of the Town of Southold and use the made-up term as an attempt to bootstrap himself into exercising a power of regulation which is, in fact, nonexistent. -4- THE ZONING PO~R OF THE TOWN OF SOUTHOLD DOES NOT EXTEND TO THE REGULATION OF THE FORM OF OWNERSHIP OF REAL PROPERTY It is a well established principal that a Town's zoning powers are limited to those matters granted to it by the State of New York. The enabling act for zoning for all towns within the State of New York provides: ...Grant of Power; Appropriations for certain expenses incurred under this article. For the purpose of promoting the health, safety, morals or the general welfare of the commun- ity, the town board is hereby em- powered by ordinance to regulate and restrict the height, the number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other spaces, the density of population, and the location and use of buildings, structures and land for trade, in- dustry, residence or other pur- poses .... Town Law, Article 16, S261 The above-quoted section is the enabling act for the Town of Southold concerning the proper topics for regulation under Southold Town Zoning Ordinance. Nowhere in that section is granted the power to regulate who can own property. The Town can no more control the sale of the subject property from a corporation to a condominium than the Town could control the sale of the subject property from a corporation to a partner- ship. -5- THE TOWN OF SOUTHOLD DOES NOT HAVE THE POWER TO PROHIBIT APPLICANT FROM CHANGING THE OWNERSHIP OF THE SUBJECT PARCEL FROM CORPORATE TO CONDOMINIUM ...In determining whether zoning or building regulations are applicable generally to condominiums, the courts have frequently noted that such regu- lations are concerned with type or manner of use, rather than form of ownership, so that the mere fact that the premises are held as condominiums will not subject them to regulation of the use contemplated as otherwise per- missible .... 71 ALR 3d 866 ~2 The certificate of occupancy (Certificate No. 166 dated February 27, 1965), in respect to the subject premises, states that the premises are legal as a multiple residence (motel) with a maximum of 175. Therefore, applicant has pre- viously satisfied all zoning requirements for the "use" of the subject premises as a "multiple residence (motel)". As stated above, no change of use is contemplated or intended by the applicant. In that no change of use of the premises or structural alterations to the premises is contemplated or in- tended, it is beyond the authority of the Town of Southold and its Building Department to attempt the regulation of the manner in which the premises are owned. ...The word "use"...does not refer to ownership but to physical use of lands and buildings. A building is not "used" as a condominium for pur- poses of zoning .... The attempted regulation of ownership of property under the guise of the zoning power is beyond the power of (the munici- -6- pality) .... Bridge Park Co. v. Borough of Highland Park, 113 N.J. Super. 219, 273 A 2d 397, 398-399, (Superior Court of New Jersey, Appellate Division, January 28, 1971) See also Plaza Joint Venture v. Atalntic City~ 174 N.J. Super. 231, 416 A 2d 71 (Superior Court of New Jersey, Appellate Division, May 19, 1980); Town of Washington v. Central Bergen Community Mental Health Center, Inc., 156 N.J. Super. 388, 383 A 2d 1194~ 1208; Hampshire House Sponsor Corp. v. Borough of Fort Lee, 172 N.J. Super. 426, 412 A 2d 816, 819; City of Miami Beach v. Arlen King Cole Con. Assoc.~ Inc.~ 302 So 2d 777~779 (Florida); Campbell v. Barraud, 376 N.Y.S. 2d 380, 383 (Supreme Court, Special Term, Suffolk County, October 29, 1975). THE APPLICANT IS REQUESTING THAT THE ZONING BOARD OF APPEALS REVERSE THE SUBJECT DECISIONS OF THE BUILDING INSPECTOR The applicant is requesting that this Board reverse the decisions of the Building Inspector which have equated a change of ownership with a change of use. The Code of the Town of Southold, Chapter 100, Zoning, does not regulate who can own real property within the Town of Southold. Therefore, the Building Inspector acted beyond the scope of his authority by attempting to regulate the ownership of real property as more particularly set forth in the two above-mentioned Notices of Disapproval. Town Law S267(2) provides: -7- ...Such Board of Appeals shall hear and decide appeals from and review any order, requirement, decision or determination by an administrative official charged with the enforce- ment of any ordinance adopted pur- suant to this article. (Zoning and Planning) .... The Code of the Town of Southold, Chapter 100, Zoning, Article XII, Board of Appeals, Section 100-121. Powers and Duties, provides: ...In addition to any such powers as may be conferred upon it by law, the Board of Appeals shall have the follow- ing powers: A. Appeals. To herein decide appeals from and review any order, requirement, decision or determination made by the Building Inspector .... This is not a request for a variance. The Code of the Town of Southold, Chapter 100, Zoning, Article XII, Board of Appeals, Section 100-121. Powers and Duties, provides: ...In addition to any such powers as may be conferred upon it by law, the Board of Appeals shall have the follow- ing powers: B. Variances. Where there are prac- tical difficulties or unnecessary hard- ships in the way of carrying out the strict letter of these regulations, the Board of Appeals shall have the power to vary or modify the application of such regulations so that the spirit of the chapter shall be observed, public safety and welfare secured and sub- stantial justice done .... As stated above, there are no provisions within the Southold Town Zoning Ordinance which regulate the form of owner- -8- ship of real property, nor could there be. Therefore, there is no application of the Zoning Ordinance to request a variance from. It is merely requested that this Board reverse the above-mentioned decisions of the Building Inspector because the Building Inspector: (1) was erroneous in equating a change of ownership with a change of use, and (2) the Building In- spector was acting beyond the scope of his authority in issuing Notices of Disapproval prohibiting a mere change in the form of ownerhsip of the applicant's subject property. OTHER FACTORS TO BE CONSIDERED BY THE ZONING BOARD OF APPEALS IN RESPECT TO THIS APPLICATION This Board has heretofore made two Notices of Declara- tion pursuant to New York State Environmental Quality Review Act. In this Board's most recent "Notice of Declaration" dated April 2, 1981, this Board determined that the proposed action is classified as a "Type II" action. This determination was made pursuant to Section 617.13 of the New York State Depart- ment of Environmental Conservation Act and the related sections contained therein, Article 8 of the Environmental Conservation Law, and Section 44-4 of the Southold Town Code. -9- MR. & MRS. J.D. ZAISER 775 MILL CREEK DRIVE SOUTHOLD, NEW YORK 11971 FORM ~0. a ,~z, .',,-,-. ,, r x r ,V,,t TOWN OF $OUTHOLD BUILDING DEPARTMENT TOWN CLERK'S OFFICE SOUTHOLD, N. Y. NOTICE OF DISAPPROVAL PLEBE TAKE NOTICE th~ y~r opp)icotion doted ~J ................... EC~.....{.t., 19.~..~ ~o~ ~,~i, ,o ~ ..................................... ...,, ,h, p~e~i,~, m~ot~a ~, ~.E.~..K'~F~].~....(?~4~ ]7 ~.E~.%~...ELCK...~.~.C ................. s,,~, ~u r~a~ Map. ................... ~ ............... Block ............................................ Lot ................................................ is returned herewith ond disapproved on the follow;ng grounds ...~...~..~.-~:.T..!..N..(t:.......H..~..T.~.,,~'......~'~..~:... ~:.T..,..~!.~7...Z:.L~ ...... ~....~..~.~.~..,.. ~%.,~:~.~.~.~...~.~:~m....~.~:%Y.~.Y.~?~ ~ I ~UtT~~ TO ~LY d~b UNI-Fs or t'o~bo t ' .................... :¢ ............................................................................................................................. ~.~ .... ~ Buildin~ Inspector Southold Town Board of Appeals MAIN ROAD- STATE ROAD 25 SOUTHOLD, L,I., N.Y. 11971 TELEPHONE (516) 765-1809 APPEALS BOARD MEMBERS CHARLES GRIGONIS, JR., CHAIRMAN SERGE DOYEN, JR. T C r, r, ',' TUT:::LL ROBERT 3. DOUGLASS GERARD P. GOEHRINGER - Joseph H. Sawicki March 16, 1981 Vincent A. Smyth, Esq. Curto, Meservey, Waller, and Smyth 205 East Main Street Huntington, NY 11743 Lack, Sullivan Re: Your Letter dated March 10, 1981 Appeal No. 2684 - North Fork Motel, Inc. Dear Mr. Smyth: You have requested an opportunity to make comments on the effects of any "downzoning relative to the North Fork Motel" after the hearing. 'The North Fork Motel, Inc. has previously brought an appeal to this Board upon which hearings were held. At the meeting of this Board held on March 12, 1981, this application was withdrawn. However, on or about January 15, 1981, this applicant filed a second appeal seeking a Certi- ficate of Occupancy for one of the motel units, which presumably will be sold as a separate unit. This latter application has not as yet been scheduled for a public hearing. When this matter has been set for a hearing, it will be published in the official Town newspaper (Suffolk Weekly Times and Long Island Traveler-Watchman). If you wish to appear at such hearing and present your views, you of course have an opportunity to do so. However, it is not the policy of this Board to permit evidence to be presented after the hearing has been held and closed. Accordingly, if you wish to present any arguments or evidence, it must be done at the regularly scheduled hearing. If you have not already done so, Page 2 March 16, 1981 Vincent A. Smyth, Esq. Re: Appeal No. 2684 - North Fork Motel, Inc. I would suggest that you subscribe to the official Town newspaper, where all public notices are published. Aside from the published notice, the only persons who are given additional notice of the application are persons whose properties abut the property which is the subject of an appeal. Since you are not an abutting owner, you would not receive such other notice. Yours very truly, CHARLES GRIGONIS, JR., CHAIRMAN SOUTHOLD TOWN BOARD OF APPEALS CG:lk March 10, 1981 Zoning Board of Appeals Town of Southold Main Road Southold, New York Re: Application for change of zoning for the Northfork Motel Inc. Dear Ladies and Gentlemen: Please be advised that I am a property owner in the Mill Colony section in the Town of Southold. I have been advised that there is an application pending for a down-zoning of the Northfork Motel. I would appreciate it if you would afford me an opportunity, after the applicant's hearing, of commenting on the effects that such a/~oning application may or may not have on my property value.l/ V~ ~yours, VAS:J VINCEN ~.~MYTH ATTORNEY AT [AW $28 I~RONT STREET GREENPORT, N.Y. 11944 February 2, 1981 Mr. Charles Grigonis, Jr., Chairman Southold Town Board of Appeals Southold Town Hall Main Road Southold, New York 11971 Re: North Fork Motel Dear Mr. Grigonis: Thank you for your courtesy extended in once again adjourning the original application for another month. I feel that if we can proceed on both the original application and the amended application simultaneously, both the Board and the applicant will avoid unnecessary duplica- tion of effort. As you know, the questions involved in this appli- cation are interrelated and deal with an issue which will again be faced by the Town of Southold in the future. I believe that if you allow me to proceed simultaneously with the original application and the amended application, the Board will obtain much required information to deal with not only this application but future applications of other appli- cants. At the hearing I plan to have two expert witnesses testify. I expect that their testimony and the applicant's presentation will take at least an hour. This information is provided so that other applicants will not have to wait need- lessly for our presentation to finish. and Mrs. matter. I would again like to thank you, the Board members, Kowalski for your courtesy and cooperation in this Very truly yours, William H. Price, Jr. WHP:kam Notices LEGAL NOTICE OF HEARINGS NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Provisions of thd Amended Code of the Town of Southold, the following matters will be held for public hearings by the Southold Town Board of Ap- peals at the Southold Town Hall, Main Road, Southold, N.Y., on Thursday, April 23, 1931: 7:30 p.m. Application of Thomas Collins, 26 Trainer Court, Huntington, N.Y. 11743 for a Variance to the Zoning Ordinance, Art. III, Sec. 30(A)(1) for permission to construct accessory (storage) building on vacant land as principal use at 275 Dawn Drive, Greenpert, N.Y.; bounded north by Martens, west by Dawn Drive, south by Wallin, east by Dawn Lagoon; County Tax Map Item No. 1000-35-5-20. 7:40 p.m. Application of Southold Grange. Inc. and others, Beckwith Avenue, Southold, N.Y. (by Rudolph Bruer, Esq.). for a sPecial Exception to the Zoning Ordi- nunce, Art. VII, Sec. 70(B)(1)(a) for a Certificate of Occupancy of building for church use in a B-1 Zone at 475 Beckwith Avenue, Southold, N.Y.; bounded north by Tray- eler Street and L.I.R.R.; west by Southold Equities, south by Mallgraf; east by Beckwith Avenue and Traveler Street; County Tax Map Item No. 1000~61-1-25. 7:50 p.m. Application of ~:25 p.m. ApOll6ati°n of North Fork MO~. Inc.. Vari~ne~ to th~ ~nnin~ Ordi- (a) ~rmmsioo to change ~e 0f oremis~ and (b) m~is- ~sioo to ~blish singl~living (motel) at p~m~es known us ~uth~ld. N.Y.: bound~ norm ~in. Kemmr. z~h and La~- ~n; south by C.R. ~ (Nor~ ' t b ~aview ~ye. and C.R. ~: more y Tax ~ap Item No. 1~135-2-23. 9:~ p.m. Application oI ~oy C. Sch~nhaar, 315 Wyckoff Avenue, Br~klyn, N.Y. (by Ga~ Flunner Olsen, Esq.) for a Variance to the ~ning Ordinance, Art III, ~. 1~31 and Art VII, ~. 1~71 for approval of ins~ficient area and width of two parcels in a thru-lot pro,ed su~ivi- pursuant to New York Town Law Section ~-a. ~ation property: South Side of Main R~d (S.R. 25), Mattituck, N.Y.; bound~ north by S.R. 25, west by Matt Agency; Ja~ombek, Roth and south by Mellender; east by Jackson, Bilian~; County Tax Dated: Ap~l 2, 198L BY ORDER OF THE SOUTHO~ TOWN BOARD OF APPEA~ CHARLES GRIGONIS, JR., C~IRMAN 367~1TA16 ' -SUFFOLK, I YEW YORK, ? ss: · .~.~' .................. being duly Sworn, h.e..., is Printer and Publisher of the SUFFOLK KES, a newspaper published at Greenport, in said ~hat the notice, of which the annexed is a printed 9n published in the said Suffolk Weekly/ Times week, tot . . .o.~..e ..................... weeks commencing on the ...l· .~.~.h. .................. .A~r. %.1 .//}..,.; .. ore me this . ,1.6..~.h. .... ,l~'~]. ........ 19. ........... ........ H[[EN K DE VOE NOTARY P BIIC. State of New York No 4707878, Suffolk County Term [xplres March 30, 19~3 COUNTY OF SUFFOLK ss: STATE OF NEW YORK Patrlcia Wood, being duly sworn, says that she is the Edilor, of THE LONG iSLAND TRAVELER-WATCHMAN, a public newspaper printed at Southold, in Suffolk County; and thct the notice of which the annexed is a printed copy, has been published in said Long Island Traveler-Watch- mc, n once each week for ............. .~. ......................... weeks st~ccessively, commencing on the .... ~..~.. .......................... day of ~ ........... ~ .................. ..................... .... Sworn to before me this ....... ~.~.....~.. ................ day of LEGAL NOTICE OF HEARINGS NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Provisions of the Amended Code of the Town of South- old, the following matters will be held for public hearings by the Southold Town Board of Appeals at the Soutbold Town Hall, Main Road bounded north by Skinner, west by Canoe Path, south by Mattituck Creek, east by Northridge; County Tax Map Item No. 1000-106.11-23. ]q~Sr~h2'SFoPr~n~. Application of -- Motel, Inc., 52325 C~. 48, Southold, NY (Wii: _l_bm H. Price~ Jr., Esq } for a~ Variance to the Zoninn Ordin ~ , ~.I00-13B, Art. · Sec. 100-60B(1)(b), Art. 'XIV, ~-TO~.i-4,~iF for: (nO_ p_ rmlsslon to change use of .~m_'~ig~e 'ann lo) permission to est ~--~i¥~t e. livl... ,,,;+ at p~e~ises known as 52325 old, NY; bounded oO~J~by I~arson; south ~bx C~R~_A~ ~o~/~ ~6ia~; iast I~ Sound- v¥~w'Afe.'and C:R: ':j~j~ ~Ore =t'~M~p' item 'No. 1000-135- 9T00 p.m. Application of Roy C. Schoenhaar, 315 Wyckoff Avenue, Brooklyn, NY (by Gary Flanner Olsen, Esq.) for a Variance to the Zoning Ordinance, Art. IH, Sec. 100- 31 and Art. VII, Sec. 100-71 for Notary Public LEGAL NOTICE OF HEARINGS NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Provisions of the Amended Code of the Town of Southold, the following matters will be held for public hearings by the Southold Town Board of Appeals at the Southold Town Hall, Main Road, Southold, NY on Thursday, April 23, 1981: 7:30 p.m. Application of Thomas Collins, 26 Trainer Court, Huntington, NY 11743 for a Variance to the Zoning Ordinance, Art. III, Sec. 100-30(A) (1) for permission to construct accessory (storage) building on vacant land as principal use at 275 Dawn Drive, Greenport, NY; bounded north by Martens, west by Dawn Drive, south by Wallin, east by Dawn Lagoon; County Tax Map Item No. 1000-35-5-20. 7:40 p.m. Application of S~uthold Grange, Inc. and others, Beckwi~h Avenue, Southold, NY (by Rudolph Bruer, Esq.) for a Special Exception to the Zoning Ordinance, Art. VII, Sec. 100-70(B) (1) (a) for a Certificate of Occupancy of building for church use in a B-1 Zone at 475 Beckwith Avenue, Southold, NY; bounded north by Traveler Street and L.I.R.R.; west by Southold Equitie~ south by Mallgraf~ east by Beckwith Avenue and TraVeler Street~ County Tax Map Item No. 1000-61-1-25. 7::50 p.m. Application of Wilhelm ~ranken, 75 Carroll Street, Brooklyn, NY 11231 for a Variance to the Zoning Ordinance, Art. III, Sec. 100-32 for permission to build garage in the frontyard area at 830 Tarpon Drive~ Greenport~ NY; bounded north by Starkie, west by Reese, south by %reismann~ east by Southold Shores Assn.; County Tax Map Item No. 1000-57-1-8 and 9. 7:55 p.m. Application of Mary Ann Mastrolanni Grefe, 395 Tuthill Road, Southold~ NY for a Variance to the Zonin§ Ordinance~ Art. III, Sec. 100-32 for per- mission to construct swimmingpool in sideyard area at 395 Tuthill Road, Southold; bounded north by Sauthoff~ west by Tuthill Road~ south by DiLalla~ east by Tuthill; Yennecott Park Subdivision Map No. 5187, Subd. Lot No 25; County Tax Map Item No. 1000-55-4-3. 8:05 p.m. Application of Agnes Dunn , 2?6 Concord Drive, Hereford, PA 18056, for a Variance to the Zoning Ordinance, Art. IIl, Sec. 100-31 for approval of insufficient area of two parcels and insufficient road fronta§e of one parce 1, located at the easterly side of Queen Street~ Greenport~ NY; bounded north by C.R. 48 ~ west by Queen St. ~ south by Malinauskas, east by Conklin: County Tax Map Item No. 1000-40-3-9.1 and 9.2. Page 2 Legal Notice of Hearings Board of Appeals Meetin9 - April 23, 1981 8:15 p.m. Application of Sarah Rauch, 480 Inlet Lane, Greenport, NY for a Variance to the Zoning Ordinance, Art. III, Sec. 100-31 for permission to relocate existing dwelling with insufficient frontyard setbacks. Location of property: 68175 C.R. 48 (and McCann Lane), Greenport; bounded north by Casa, west by Burr, south by C.R. 48~ east by klcCann Lane; County Tax Map Item No. 1000-33-3-38 and 39. 8: 20 p.m. Application of Cybil Kooper ~ South Drive, Mattituck, NY by Arthur Siemerling~ for a Variance to the Zoning Ordinance, Art. III, Sec. 100-32 for permission to construct swimmingpool in the front and/or side yard areas at "Canoe Path ," private road located at the end of South Drive, Mattituck, NY: bounded north by Skinner ~ west by Canoe Path~ south by Mattituck Creek, east by Northridge; County Tax Map Item No. 1000-106-tl-23. iN0 (Wil~i:a2m5 ~:n~.icA.~.p~.c.a.ti~oo.~North Fork Motel, Inc., 52325 C. R. 48~ Southold, Y~for a Variance to the Zonin9 Ordinance, Art. I, Sec. lO0-13B, Art. VI, Sec. O-60B(1)(b), Art. XIV, Sec. 100-144F for: (a) permission to change,rose of premises and (b) permission to establish single-livin9 unit within multi-dwelling (motel) at premises known as 52325 C.R. 48 (North Road), Soutt~l d, NY; bounded north by Soundview Ave. ;west by Main, Kemper, Zech and Larson; s{>uth by C.R. 48 (North Road); east by Soundview Ave. and C.R. 48: more particularly known-as County Tax Map Item No. 1000-135-2-23. 9: 00 p.m. Application of Roy C. Schoenhaar ~ 315 Wyckoff Avenue, Brooklyn, NY (by Gary Flanner Olsen, Esq.) for a Variance to the Zonin9 Ordinance, Art. III, Sec. 100-31 and Art. VII~ Sec. 100-71 for approval of insufficient area and width of two parcels in a three-lot proposed subdivision~ and approval of access pursuant to New York Town Law Section 280-a. Location of property: South Side of Main Road (S.R. 25), Mattituck, NY; bounded north by S.R. 25 ~ west by Matt Agency;,, Jarzombek, Roth and others; south by Mellender½ east by Pumillo~ Hallock: Steinhart, 3ackson~ Bilianos; County Tax Map Item No. 1000-143-2-33.2. Dated: April 2, 1981. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS CHARLES GRIGONIS, JR. , CHAIRMAN Page 3 Legal Notice of Hearings Board of Appeals Meeting - April 23, 1981 Copies delivered Monday~ April 13~ 1981 to: Suffolk Times~ Inc. L.I. Traveler Town Clerk Bulletin Board Supervisor Town Board Town Attorney Mr. Thomas Collins Rudolph Bruer ~ Esq. for Southold Grange~ Inc. Mr. Wilhelm Franken Ms. Mary Ann Mastroianni Grefe Ms. Agnes Dunn Ms. Sarah Rauch Ms. Cybil Kooper Mr. Arthur Siemerling for Ms. Kooper William H. Price~ Jr. ~ Esq. for North Fork Motell Inc. Gary Flanner Olsen~ Esq. for Roy C. $choenhaar Southold Town Board of Appeals MAIN ROAD-STATE ROAD 25 SnUTHOLD, L.I., N.Y. 119'7] TELEPHONE (516) 765 1809 APPEALS BOARD MEMBERS CHARLES GRIGONIS, JR., CHAIRMAN SERGE DOYEN, JR. ROBERT J. DOUGLASS GERARD P. GOEHRINGER N.Y. $. Joseph H. Sawicki NOTICE OF DECLARATION PURSUANT TO ENVIRONMENTAL QUALITY REVIEW ACT Appeal No. 2778. Application of: North Fork Motel, Inc. Location of Property in Question: C.R. Southold, NY. County Tax Map Item No. 1000- 135-2-23. 48 and Soundview Avenue, Project Proposed by Appeal Application: (a) Change use of premises and (b) establish single-living unit within multi-dwelling [motel]. ENVIRONMENTAL DECLARATION: Pursuant to Section 617.13 of the N.Y.S. Department of Environmental Conservation Act, Article 8 of the Environmental Conservation Law, and Section 44-4 of the Southold Town Code, notice is hereby given that the Southold Town Board of Appeals has determined that the subject project as proposed herein is hereby classified as a Type II Action not having a significant adverse effect upon the environment for the following reason(s): An Environmental Assessment in the Short Form has been submitted which indicates that no significant adverse effects were likely to occur should this project be implemented as planned. The property in question [ ] is not located within 300 feet of tidal wetlands; [~may be located within 300 feet of tidal wetlands but separating the property from the wetland area is a road or other type of barrier labeling this matter outside the jurisdiction of the N.Y.S. Department of Environmental Con- servation and therefore correspondence was not solicited. This declaration should not be considered a determination made for any other department or agency which may also be involved, nor for any other project not covered by the subject appeal applica- tion. Dated: April 2, 1981. By Order of the Southold Town Board of Appeals Copies to: Applicant's attorney Town Clerk Bulletin Board [/Appeal File JUDITH T. TERRY · SUFFOLK COUNTY 8outhold, L. I., N. Y. 11971 ['ELEPHO NJ' (516) 765-1801 January 15, 1981 To: Southold Town Zoning Board of Appeals From: Judith T. Terry, Town Clerk Transmitted herewith is Zoning Appeal No. 2778 amended application of North Fork Motel for a variance. Also included are notification to adjoining peroperl owners as follows: Mr. Arnold L. Larson, North Road, Southold, New York 11971; Ms. Theresa Czech, 6917 62nd Road, Middle Village, New York 11379; Mr. Stanle5 K. Kempner, 1449 Sycamore Avenue, North Merrick, New York 11566; Ms. Eva M. Main, Box 106, Mattituck, New York 119~2. Judith T. Terry JTT/bn Town Clerk Enclosures ATTORNEY AT LAW 828 FRONT STREET GREENPORT, N.Y. 11944 Phone (516) 477-1016 January 14, 1981 Mr. Charles Grigonis, Jr., Chairman Southold Town Zoning Board of Appeals Main Road Southold, New York 11971 Re: North Fork Motel, Inc. Dear Mr. Grigonis: Enclosed herewith please find my check as additional filing fee and short environmental form. for $15.00 assessment The short environmental assessment form which was heretofore filed on behalf on the applicant concerned that portion of the appeal dealing with "all necessary approvals to convert to condominium". The short environmental assess- ment form submitted herewith is in respect solely to the application for a certificate of occupancy for a motel room as a motel room which was denied by the Building Inspector. While there was some public comment concerning this entire appeal, there were no comments directed solely towards the request for the certificate of occupancy. Please make this letter part of the record. Very truly yours, William H. Price, Jr. WHP:kam Enclosures FORM NO. 3 TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN CLERK'S OFFICE SOUTHOLD, N. Y. NOTICE OF DISAPPROVAL File No. Date December 22 19 80 North Road, 828 Front Street Southold, N.Y. Greenport, N.Y. PLEASE TAKE NOTICE that your application dated December 17 80 Living Unit within Mult Dwellin~Motel) for permit to ,ee~s~r~e¢ ~a.tablS. sh..&in~l.e~t the premises located at .................................... ......... -5.--2.-3..-2..5.....C.."...R..z.~Y...(..N..°...r..t...h.....R.~.) ........ Street Southold, N.Y. Mop ......1,~.5 ........................ Block ........ 02 ............................... Lot ....G2.3 ..................................... is returned herewith and disapproved on the follow;ng grounds .C...o.~.v...e~...i.~j[...@....1..i..v..1.'..n.g....U...n..i...t...o.f Existing Motel to Single 0wnershi&q (Cen~Q~&~iu~) ~t, oes no.~ keep · ~.i~hin .. ~hm..D.a f%ni.t iom...a f...a.. Mo.t el..(.Mo.t or ...V. ehi~l e~.. 2~. ans&emt s.).., an&..a s such would not be a use ~ermitted ~ ~ ~ /' .................................................................................... ..................... ART VI Sec. 100-60 ~ ~/ / B.(1) (b) /"/ Building Inspector SHORT ENVIRONHENTAL ASSESS~NT FORI~ INSTRUCTIOHS: ~ In order to answer the questions in this short EAF it is assumed that the preparer will use currently available information concerning the project and the likely impacts of the action. It is not expected that bdditionai studies, research or other investigations villi be undertaken. (b) If any question has been answered Yes the project may be significant and a completed Environmental Assessment Form is necessary. (c) If all questions have been answered No it is }il<ely that this project is.nat significant. (d) Environmental Assessment }. Will project resul% in o large physical change to the project site or physically alter more than 10 acres of land? ........................ Yes ~ No 2. ~lill there be o major change to any unique or -unusual land form found on the site? .......... Yes, ~NO 3. Will project alter or hove a large effect on existing body of water?.. ................... .. . Yes S~No, :. 4. %'7ill project have o potentially large impact on groundwater quality? ....................... Yes. 5. ~'/ill project significantly effect drainage flow on adjacent sites? ........................ Yes.~, ,Ne 6. %'/ill project affect any threatened or endangered plant or on~mol species? ........... _ Yes ~ No, 7. Will project result in o major adverse effect on air quality? ............................... Yes~, No 8. %~/ill project hove o major effect on visual character of the community or scenic views or vistas known to:be imporlont to the community?, Yes,/ 9. %'7ill project adversely impact any site or .' structure of historic, prehistoric or paleontological importance or any site designated as a critical environmental area 10. %~ill project hove o major effect on existing or future recreational opportunities? ......... Yes.~ No 11. %~ill project result in .major traffic problems oK cause o major affect to ex.isting transportation systems? ....................... Yes~No. 12. Will project .regulorly cause objectionable o~ors, noise, glare, vibration, or electrlcol disturbance os o result of the project's ~ion? ' Yes ~ No opera' 13. %'~ill project have an), impact on public healih or.safety? .................................... · .Yes.~ 14. %'till project affect the existing community by directly causing o growth in permanent population of more than 5 percent over a one year period or have o me jar negative effect on the character of the community or ,eighborhood? .................................. .... YesX 15. Is there public controversy concerning the Yes No project? ...................................... , PREPARER'S S~GNAIURE TOWN OF SOUTHOLD, NEW YORK AMENDED APPEAL FROM DECISION OF BUILDING INSPECTOR TO THE ZONING BOARD OF APPEALS TOWN OF SOUTHOLD, N.Y. DATE: December 29, 1980 North Fork Motel, Inc., a New York corporation, having its principal place of business at 52325 County Route 27 (North Road), Southold, New York, HEREBY APPEALS TO THE ZONING BOARD OF APPEALS FROM THE DECISIONS OF THE BUILDING INSPECTOR DATED February 13, 1980 and December 22, 1980 WHEREBY THE BUILDING INSPECTOR DENIED TO the North Fork Motel, Inc., 52325 County Route 27 (North Road), Southold, New York (a) "permission to change use of the premises located at" 52325 County Route 27 (North Road), Southold, New York, and (b) "permit to establish single living unit within multi-dwelling (motel) at the premises located at" 52325 County Route 27 (North Road), Southold, New York, respectively. 1. LOCATION OF THE PROPERTY is 52325 County Route 27, Southold, Suffolk County, New York. 2. PROVISIONS OF THE ZONING ORDINANCE APPEALED: Article VI S100-60 B (1) (b) Article I S100-13 B Article ~IV ~100-144 F 3. TYPE OF APPEAL: Appeal from and review of the abovesetforth decisions of the Building In- spector pursuant to Article XII ~100-121 A and Town Law, Article 16, ~267(2). PREVIOUS APPEAL. A previous appeal has been commenced in respect to the Building Inspec- tor's decision of February 13, 1980. Such appeal was a request for a variance. Such appeal is hereby amended to be an appeal as set forth in item 3, above, and is hereby consolidated with the appeal of the Building Inspector's decision of December 22, 1980. REASON FOR APPEAL The decision of the Building Inspector dated February 13, 1980 erroneously stated that the change of the type of ownership from corporate to condominium is a change of use. The decision of the Building Inspector dated December 22, 1980 which denied the applica- tion for a certificate of occupancy for one motel unit (room) was erroneous in stating that the "conveying of a living unit" would change the use of the premises. Both decisions have erroneously equated a change of owner- ship with a change in use. The change from corporate-type ownership to condominium-type ownership does not imply a change in use any more than a change from corporate-type ownership to a partnership-type ownership. Both decisions erroneously equate the word "condominium" with some type of permanent residential use. "A condominium is a system of ownership of real property whereby a parcel of real estate, its buildings and other improvements, either existing or to be created are ow-ned by more than one person." (Warren's Weed New York Real Property, Condominiums, Sl.01) The condominium type of ownership has no implications concerning the type of use of the real estate, its buildings and other improvements. The applicant has not requested to change the use of the real estate or buildings and does not intend to change the use of the real estate or buildings. Specifically in respect to the decision of the Building Inspector dated December 22, 1980: The Building Inspector denied the application for a certificate of occupancy for one motel room at the subject parcel. Applicant requested that the Building Inspector certify, in writing, that one of the motel rooms was a legal motel room. The Building Inspector refused to do this stating ...Conveying a living Unit of Existing Motel to Single Ownership (Condominium) does not keep within the Definition of a Motel (Motor Vehicles Transients) and as such would not be a use permitted under Special Exception. ART VI Sec. 100-60 B. (1) (b) .... The Building Inspector has wrongfully extrapolated the plain language of the definition of motel contained at Article I ~100-13 B. The definition speaks of the general design of the structure and its use or intended use for the accommodation of motor vehicle transients. The Building Inspector does not have the power to restrict how the structure is owned. WHEREFORE, Board of Appeals of it is respectfully requested that the Zoning the Town of Southold reverse the two aforesaid decisions of the Building Inspector and to direct the Building In- spector to issue certificates of occupancy in respect to the individual motel units stating that the units are legal motel rooms. NORTH FORK MOTEL, INC. [CE, JR. Attorney/Agent BOARD OF APPEALS. TOWN OF SOUTHOLD In the Matter of the Petition of : NORTH FORK MOTEL, INC. : to the Board of Appeals of the Town of Southold : NOTICE TO: Mr. Arnold L. Larson Ms. Theresa Czech Mr. Stanley K. Kempner Ms. Eva M. Main YOU ARE HEREBY GIVEN NOTICE: 1. That it is the intention of the undersigned to petition the Board of Appeals of the Town of Southold to request a-(¥ar~e~rapet, ie~eel~ie~)-(r~pec~a%~e,h, wi~)-(the following relief: the reversal of two decisions of the Building Inspector equating a change of ownership with ). a change in use). 2. That the property which is the subject of the Petition is located adjacent to your property and is des- cribed as follows: North by Sound View Avenue~ West by land of Eva M. ~in, Stanley K. Kempner~ Theresa Czech, and Arnold L. Larson, Southerly%and '] Easterly by County Route 27 (North Road) .~ 3. That the property which is the subject of such Petition is located in the following zoning district: 4. ThatbysuchPetition, theundersigned willrequestthefollowingrelief: the reversal of the decisions of the Building Inspector (Item 1 above) and direction to Building Inspector to issue certificate of occupancy for motel rooms. 5. That the provisions of the Southold To.wn Zoning Code applicable .to the relief sought by the under- signedare: Art. VI §100-60 B (1)(b), Art, I S100-13 B, Art. XIV S100-144 F 6. That within five days from the date hereof, a written Petition requesting the relief specified above will be filed in the Southold Town Clerk's Office at Main Road, Southold, New York and you may then and there examine the same during regular office hours. 7. That before the relief sought may be granted, a public hearing must be held on the matter by the Board of Appeals; that a notice of such bearing must be published at least five days prior to the date of such hearing in the Suffolk Times and in the Long Island Traveler-Mattituck Watchman, newspapers published in the Town of Southold and deSignated for the publication of such notices; that you or your representative have the right to appear and be beard at such hearing. Dated: December 29,.1980 , NORTH FORK MOTEL, INC. Attorney/Agent Post Office Address 828 Front Street Greenport, New York 11944 NAME PROOF OF MAILING OF NOTICE ADDRESS Mr. Arnold L. Larson Ms. Theresa Czech Mr. Stanley K. Kempner Ms. Eva M. Main North Road Southold, New York 11971 6917 62nd Road Middle Village, New York 11379 1449 Sycamore Avenue North Merrick, New York 11566 Box 106 Mattituck, New York 11952 9L61 ud¥ 'OOg£ tu]o:l Sd STATE OF NEW YORK ) COUNTY OF SUFFOLK ) SS.: KATHY A. MAZZAFERRO , residing at Osseo Avenue, Southold, New York 11971 , being duly sworn, deposes and says that on the of December ,19 8 0 , deponent mailed a true copy of the Notice set forth on the re- verse side hereof, directed to each of the above-named persons at the addresses set opposite their respective names; that the addresses set opposite the names of said persons are the addresses of said persons as shown on the current assessment roll of the Town of Southold; that said Notices were mailed at the United States Post Of- rice at Southold ; that said Notices were mailed to each of said persons by (certified) Sworn to before me this C~%~%L~) day of December ,19 80 NOTARY PUgLIC, STATE CF NEW YORK ~uffo~k County No. 4644944 Term Expires Mcr~ 30, 1981 - I~TH~ A. MAZ~A~B~R~ ATTORNEY AT LAW 8~8 PRONT STREI~T GREENPORT, N.Y. 119~4 Phone (510) 477q016 December 17, 1980 Building Department Town of Southold Main Road Southold, New York 11971 Re: Application for Certificate of Occupancy for Room Number 23 at North Fork Motel Gentlemen: As you are aware, I am the attorney for North Fork Motel, Inc., the owner/operator of the North Fork Motel, more particularly designated in the application for certifi- cate of occupancy attached hereto. As you are also aware, the owner wishes to convert the form of ownership from corporate to condominium. No change of use is contemplated or requested by the applica- tion for the certificate of occupancy for unit or room number 23 of the motel. The request is specifically for a certificate of occupancy for unit or room number 23 with the occupancy re- stricted to the use of "the more or less temporary abiding place" of "motor vehicle transients." The quote "the more or less temporary abiding place" comes from the definition of hotel ~n your zoning ordinance. For the purpose of this application, that phrase was selected as the derivation of the word motel, i.e., "a motorist's hotel." For the purpose of this application, I assume that "motor vehicle transients" are transient persons whose prin- cipal means of transportation, while in this area, is a motor vehicle. A transient person is a person not permanently within the town and, as such, could not establish room 23 as a residence or a dwelling unit. As stated above, no change of use is contemplated. All that changes is the form of ownership. .% Building Department Town of Southold -2- December 17, 1980 If you have any questions concerning the difference between "condominium" ownership and the use as "dwelling units" or any other matter concerning this application, please do not hesitate to contact me. Very truly yours, William H. Price, Jr. W~P: karo FORM NO. 6 TOWN OF SOUTHOLD Building Department Town Hall Southold, N.Y. 11971 APPLICATION FOR CERTIFICATE OF OCCUPANCY Instructions A. This application must be filled in typewriter OR ink, and submitted in duplicate to the Building Inspec- tor with the following; for new buildings or new use: 1. Final survey of property with accurate location of all buildings, property lines, streets, and unusual natural or topographic features. 2. Final approval of Health Dept. of water supply and sewerage disposal--(S-9 form or equal). 3. Approval of electrical installation from Board of Fire Underwriters. 4. Commercial buildings, Industrial buildings, Multiple Residences and similar buildings and installa- tions, a certificate of Code compliance from the Architect or Engineer responsible for the building. 5. Submit Planning Board approval of completed site plan requirements where applicable. B. For existing buildings (prior to April 1957), Non-conforming uses, or buildings and "pre-existing" land uses: 1. Accurate survey of peoperty showing all property lines, streets, buildings and unusual natural or topographic features. 2. Sworn statement of owner or previous owner as to use, occupancy and condition of buildings. 3. Date of any housing code or safety inspection of buildings or premises, or other pertinent informa- tior~ required to prepare a certificate, Fees: 1. Certificate of occupancy $5.00 2. Certificate of occupancy on pre-existing dwelling or land use 3. Copy of certificate of occupancy $1,00 $5.00 December ~7 1980 Date .. . ' New Building ............. Old o~Pre-exJstin~ E[uildin~+ U.~it XX Vacant Land unltor ~oomNo. Z5 ........................ Location of Property (No #) North Road, Southold House No. Street Ham/et Owner or Owners of Property North Fork Motel, Inc. County Tax Map No. 1000 Section 135 Block 2 . P/O 2.3. Subdivision ................................. Filed Map No ........... Lot No .............. Permit No ........... Date of Permit .......... Applicant .................................. Health Dept. Approval ........................ Labor Dept. Approval ........................ Underwriters Approval ........................ Planning Board Approval ...................... Request for Temporary Certificate ..................... Final Certificate XX Fee Submitted $ 5.00 ~nstructi~n~nab~vede~ribedbui~dingandpermitmeetsa~app~icab~ec~desandregu~ati~ns~ See letter of William H. Price,_~~Jr. ~reto and made a part hereof. Applicant ·' ~~~~SESQ ]JR., ................. R~.10-10-TS Attorney/Agent for North Fork Motel, Inc. SUPERVISOR'S OFFICE' 16 South Street Greenporf, N. Y. Tel. Greenport 7-0550 BUILDING DEPARTMENT TOWN OF $OUTHOLD SUFFOLK COUNTY, N. Y. TOWN CLERK'S OFFICE Main Street Southold, N. Y. Tel. Southold 5-3783 BUILDING I:NSPECTOR'S OFFICE CERTIFICATE OF OCCUPANCY No. "J~ Date Jm~e 28 THiS CERTIFIES that the building located at N/.q Nn~th Rd (CR2?A) & soUnd View ~treet, Map No. ~ :~ , Block No. x x ~oc x , Lot No, ~QCX in the Town of Southold, conforms substantially fo the approved plans and specifications heretofore filed )n this office with Application for Building Permit dated Fe13e ~>7 19 6~. pursuant fo which Building Permit No. ~P , dated ments of the applicable provisions of the law. ~itip!~ Re-~idenee (m~l) This cediflcate is issued to T~ ~ T~ of the ~fore~id bu~ldlng. ~nll P~9-~, wes issued, and conforms to all of the require- The occupancy for which fhls certificate is issued is (;~r~er s (owner, lessee or tenant) H.D.Approval June 28, 196% (The Certificate of Occupanc~ w;ll be issued only afte~ ~e Building Inspector is convinced of the completion of the constru~ion ~n compllence with the Multiple Reslder~e Law ~nd with other I~ws, ordinances.or regulations affecting the premises, end {n conformity with the approved p~ens ~nd specificetlons.) ,! Original for Municipal Building Department $'I'A'T'I=ME~N'I' OF REGISTRY To be filed in duplicate with the municipal building department or local enforcement agency by every owner of a multiple dwelling, as defined in subdivision 33 of section 4 of the Multiple Residence Law. Within 30 days after the filing of this statement, the municipal building department or en- forcement agency is required by section 300, Multiple Residence Law, to file a duplicate copy hereof with the State Building Code Commission, 1740 Broadway, New York !9, N. V. Location of multiple dwelling: (a) Street and number ...N./.~.....~.o.~.th..~L~d...f.C[L22~,l..f~...f..~.~.d.....V.i.~.W...Ave (b) Municipality ,S..o...U:..t..h...o..1.,.d..~...~.:.~/'..: ...................................................................... 2. Description: (a) Type of construction .F~.anze ............................................................................... (b) Height of building, including number of stories .....'lf,~r.O ..................................... (c) Type of heating facilities ..1~a~elog~.z'~...t~es.t ............................................... (d) Number of apartments arJ.e. ................................................................................. (e) Number of living rooms ...... .~'1 ............................................................................ (f) Number of kitchenettes .~_.~12.e....(~Dz'...A.Dt,.)....g.~.e...$~..D.~.J~..'.t:.e. ................... (g) Number of bathrooms .... .~,,~ ............................................................................... (h) Number of water closets ...i+.~ ............................................................................... (i) Number of occupants for which building was designed or intended to be occupied or used ..~.7.~..~s.ximu~ .................................................................................. 3. Age of (a) (b) multiple dwelling: Date when constructed ..... ,,T..g,t'~ke.....,],~.~).~' ................................. ........................... Dates of substantial additions, alterations or modifications of dwelling, with brief description thereof ...12,oD.e ........................................................................ (c) If now under construction, state when construction commenced and anticipated date of completion ..Fe.b/...2nne..1.gE~' ............................................ . ............. 4. Use: Describe the principal use made, or, in the case of buildings under construction, to be made, of the multiple dwelling (such as apartment house, hotel, apartment hotel, lodging house, boarding house, school, convalescent, old age or nursing home, pri- vate dwelling two or more stories in height with five or more boorders, roomers or lodgers, or other classification of multiple dwelling including those specified in sec- tion 33, Multiple Residence Law). ...~o..t~l..r.o.c~s. ...................................................................................................... Dated at ..... ~;.CtlJ. thpld ................ , New York ............... ,T.une ........ 2[~ ................... , 19~.ff. .... k o os Irc ~.Y (Address of Owner) STATEMENT OF FILING Filed with the ..... Building...Zns.peator ............................................................ of the (Building Department or Other Erfforcement A~ency) .................... T...o.¥..~.... g..f.....S.Q.u,..t, b...q ~.d.. ..... on the ................. ~,.~.~h .....~u,r),~. ............ 195~.~'.. (Name of Municipality) (Date of ~ling) ....... whom 8ta~me~t of Registry was ~led) ..App_efi.1 I~I9.. .... 2778.. This is an appeal by North Fork Motel, Inc. of two determinations of the Building Inspector dated February 13, 1980 and December 22, 1980. By letter dated February 11, 1980, Appellant wrote to the Building Inspector and stated: "We have been builder, owner, operator of the North Fork Motel for the past 16 years. As of late (past few years) some of our steady clientele have expressed a desire to purchase a unit outright. Therefore, we hereby apply for approval to do same." On February 13, 1980, the Building Inspector issued a written Notice of Disapproval which stated that the proposed use was not a use permitted in the "B" Zone District. An appeal of the February 13, 1980 determination of the Building Inspector was taken to the Board, a hearing held and thereafter on March 12, 1981, withdrawn prior to a determination of this Board. By application dated December 17, 1980, Appellant applied to the Building Inspector for a Certificate of Occupancy for Room No. 23 within the Motel struc- ture. The Building Inspector denied such application on December 22, 1980 upon the grounds that "conveying a living unit of existing motel to single ownership (condominium) does not keep within the definition of a motel (motor vehicle transients) and as such would not be a use permitted under Special Exception." By amended appeal dated December 29, 1980, Appellant appealed the Decem- ber 22, 1980 Building Inspector determination as well as the previous February 13, 1980 determination (the appeal of this Board having been withdrawn on March 12, 1981). The premises which are the subject of this appeal comprise a parcel of land having an area of approximately 1.3 acres located at the intersection of County Route 48 (formerly County Route 27) and Sound View Avenue and is located in the "B" Light Business District. The property surrounding the subject premises is zoned for "A" }%esidcntial and Agricultural uses. There is erected upon the premises a two-story wood frame motel containing 41 motel rooms and two units with kitchens. The building was constructed in June, 1965 at which time such use was a permitted use under the then existing Zoning Ordinance. Under thc present Zoning Code a motel is a use permitted by special exception [100-50B(4); 100-60 B(1)(b)] in the "B" zone provided that the density requirements of the code are complied with. Applying the present density requirements to the premises would permit 9.44 motel units on the site, rather than the 43 units presently existing. Accordingly, the present use is a pre-existing non-conforming use. In its application to the Building Inspector, Appellant stated it "wishes to con- vert the form of ownership from corporate to condominium. No change of use is contemplated or requested by the application for the Certificate of Occupancy for unit or room number 23 of the motel." Section 100-144 A of the Zoning Code provides as follows: "A certificate of occupancy shall be applied for from the Building Inspector and it shall be unlawful to do any of the following until a certificate of occupancy is issued therefor, to wit: (1) Occupancy and use of a building erected, reconstructed, restored, structurally altered or moved, or any change in use of an existing building. (2) Occupancy, use or any change in the use of any land. (3) Any change in use of a nonconforming use." Section 100-13 defines a Motel as follows: "A building containing guest rooms, each of which, or each pair of which, has a separate entrance leading directly from the outside of the building with parking space conveniently located to each unit, and which is designed, used or intended to be used primarily for the accom- modation of motor vehicle transients." The issue in this appeal .is whether the contemplated conveyance of a single room in an existing motel from the corporate owner of the entire motel property to an individual for his sole use and occupancy is, in effect, a change of 'use of the premises. The Appellant contends that merely a change in ownership will occur. -2- This Board disagrees. The p~'(~mises in question are presently utilized as a seasonal motel. Under the Zoning Code a "Motel'~ is a building containing guest rooms ..... which is designed, used or intended to be used primarily for the accommodation of motor vehicle transients." Webster~s New International Dictionary, 2nd Ed., defines a"guest" as "any person who lodges, boards or receives refreshment for pay at a hotel, boardinghouse, restaurant, or the like" and "transient" as "passing quickly from existence; of short or uncertain duration;" If the use of a unit in the Appellant~s motel were to be owned by an individual, it is to be expected that such person could occupy said unit during such times and for such duration, and by such of his family and guests as he might wish, since he, as owner, has com- plete control of the use and occupancy of the unit. The owner is not a "guest" and it is doubtful that he would be characterized as a "motor vehicle transients". This type of use would differ from the present use of such unit by motor vehicle transient paying guests, under the control and supervision of the motel owner. In the opinion of this Board, the use of a room in a seasonal motel for the accommodation of motor vehicle transients is not the same as the use of such a room by a person who is the actual owner of the motel room. The former is a use permitted by the Code. The latter is a use not permitted by the Code. Accordingly, it is the decision of this Board that the Building Inspector acted properly in denying the application for a certificate of occupancy and such deter- mination is affirmed and the appeal is dismissed. Southo wn Board of Appeals blAIN ROAD STATE ROAD 25 SOUTHOLD, L.I., N,Y. 33971 TELEPHONE (516) 765-1809 APPEALS BOARD' MEMBERS CHARLES GRIGONIS, JR., CHAIRMAN SERGE DOYEN, .tR. T,"RRY TUT:::LL ROBERT J. DOUGLASS GERARD P. GOEHRINGER N. Y o $. Joseph H. Sa'~lc]d. NOTICE OF DECLARATION PURSUANT TO ENVIRONMENTAL QUALITY REVIEW ACT Appeal No. 2778. Application of: North Fork Motel~ Inc. Location of Property in Question: C.R. 48 Southold, NY. County Tax Map Item No. 1000- ~35-2-23. Project Proposed by Appeal Application: (a) and and Soundview Avenue, Change use of premises (b) establish single-living unit within multi-dwelling [motel]. ENVIRONMENTAL DECLARATION: Pursuant to Section 617.13 of the N.Y.S. Department of Environmental Conservation Act, Article 8 of the Environmental Conservation Law, and Section 44-4 of the Southold Town Code, notice is hereby given that the Southold Town Board of Appeals has determined that the subject project as proposed herein is hereby classified as a Type II Action not having a significant adverse effect upon the environment for the following reason(s): An Environmental Assessment in the Short Form has been submitted which indicates that no significant adverse effects were likely to occur should.this project be implemented as planned. The property in question [ ] is not located within 300 feet of tidal wetlands; [~Vmay be located within 300 feet of tidal wetlands but separating the property from the wetland area is a road or other type of barrieY labeling this matter outside the jurisdiction of the N.Y.S. Department of Environmental Con- servation and therefore correspondence was not solicited. This declaration should not be considered a determination made for any other department or agency which may also be involved, nor for any other project not covered by the subject appeal applica- tion.' Dated: April 2, 1981. By Order of the Southold Town Board of Appeals Copies to:A~plicant's attorney ~-Town Clerk Bulletin Board Appeal File 24 26 c~ 30 Ho s h omofnu ck SUPREME COURT OF THE STATE OF N~W YORK COUNTY OF SUFFOLK NORTH FORK MOTEL, INCo, Petitioner, -against- CHABliS GRIGONIS, JR., CHAIRMAN, and ROBERT DOUGLAS, GERARD GOEHRINGER, JR., JOSEPH H. SAWICKI, and SERGE J. DOYEN, JR., constituting the ZONING BOARD OF APPEALS of the TOWN OF SOUTHOLD, GEORGE H. FISHER, SENIOR BUILDING INSPECTOR of the TOWN OF SOUTHOLD, and EDWARD F. HINDERM~LN, BUILDING INSPECTOR of the TOWN OF SOUTHOLD, Respondents. Index No. NOTZCE OF PLEASE TAKE NOTICE that upon the petition of NORTH FORK MOTEL, INC., verified July ~ , 1981, and the exhibits thereto attached and upon all testimony, papers and proceedings had before the respondent Zoning Board of Appeals of the Town of Southold with respect to the matter set forth in the petition herein, the undersigned will move, pursuant to CPLR Article 78, this court at a Special Term, Part I, thereof to be held at the courthouse of this court, Supreme Court House, Griffing Avenue, Riverhead, New York, on the ]~~th day of August, 1981, at 9,30 a.m. for a review of the determination of the respondent Zoning Board of Appeals, dated June 25, 1981, denying the petitioner~s appeal to said respondent Zoning Board of Appeals to reverse two decisions of the Southold Town Building Inspector and direct the issu- ance of · certificate of occupancy, as more particularly set forth in the written petition, and for Judgment (1) Annuling and setting aside said decision as being beyond the scope of the authority of respondent Zoning Board of Appeals to regulate the form of ownership of real property~ (2) Annuling and setting aside the decisions of the respondent Southold Town Building Inspector dated February 13, 1980 and December 22, 1980! (3) Annuling and setting aside the decision of the respondent Zoning Board of Appeals in that said decision was not timely made and £iled pursuant to Town Law S267 ¶5! (4) Directing the respondent Zoning Board of Appeals to grant the appeal requested! (5) Declaring that the 8outhold Town Building Inspector and respondent Zoning Board of Appeals do not have the power to restrict or regulate the form of ownership of the subject real property of petitioner~ (6) Declaring that the respondent Southold Town Building Inspector and respondent Zoning Board of Appeals do not have the power to prevent the change or conversion of ownership of petitioner's subject real property from corporate form to condomini~m forml (7) For such other end further relief in the premises as may be Just and proper. PLEASE TAKE FURTHER NOTICE that demand is hereby made that respondents certify and send to this court within the time prescribed by CPLR S7804 all actions and proceedings of said Board in the above entitled matter and designated as Appeal No. 2778 with a certified uopy of all petitions, appeals, applications, reports, notices, -2- documents, letters, affidavits, diagrams, plans, drawings, and any and all other papers before or acted upon by said Board together with a certified copy of all resolutions, determinations, decisions and opinions of said Zoning Board of Appeals and the minutes of all pro- ceedings, hearings, and the reports of all inspections and examinations and all other matters and things considered or acted upon by said Board in arriving at its determination now under review for the purpose of reviewing all and singular the acts and proceedings of the Board in the matter of the application of North Fork Motel, Inc., Appeal Number 2778. PLEASE TAKE FURTHER NOTICE that any answer and supporting affidavits shall be served upon the undersigned at least five (5) days before the return date hereof. PLEASE TAKE FURTHER NOTICE that petitioner designates Suffolk County as the place of trial since the premises involved herein are located in said County. Datedl Southold, New York July 23, 1981 ZONING BOARD OF APPEALS TOWN OF SOUTHOLD Southold Town Hall Main Road Southold, New York 11971 Yours, etco H, PRICE, JR. Attorney for Petitioner P.O. A~dressl 828 FRONT STREET GREENPORT, NEW YORK 11944 Telephone No.~ (516) 477-1016 BUILDING INSPECTOR TOWN OF SOUTHOLD Southold Town Hall Main Road Southold, New York 11971 -3- SUPP~tE COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK NORTH FOP~ MOTEL~ INC, ~ Petitioner, -against- Respondents CHARLES GRI~ONIS, JR., CHAIRMAN~ and ROBERT DOU~ GERARD ~OR~RIN~R~ JRo, JOSEPH Ho SAWICKI, and SERGE J. DOYEN, JR°, constituting the zONING BOARD OF APPEALS of the TOWN OF SOUTHOLD, GEORGE H. FISHER, S~NIOR BUILDING INSPECTOR of the TOWN OF SOUTHOLD, and EDWARD F. HINDERMAN~ BUILDING INSPECTOR of the TOWN OF SOUTHOLD, Index No. PETITION TO THE SUPREME COURT OF TEE STATE OF NEW YOHEz The petition of NORTH FORK MOTEL, INC., rempectfully shows~ 1. That your petitioner is the owner of certain real property at 52325 County Route 48 in the Town of Southold, Suffolk County, New York, and designated as District 1000, Section 135~ Block 02, Lot 023 on the Suffolk County Tax Map. 2. That the petitioner is a corporation duly organized and existing under and by virtue of the laws of the State of New York and having its principal place of business at 52325 County Route 48, Southold, New York. 3. That heretofore and on April 9, 1957, the Town of Southold adopted a zoning ordinance which was amended in its entirety on April 8~ 1958 and November 23, 1971, and amended in part on various occasions thereafter, a true copy is annexed hereto as Exhibit 1. 4. That the above-described real property of petitioner is located within the 'B Light Business District' as set forth in the Southold Town Zoning Ordinance and the Zoning Map of the T=~n of Southold. 5. That during the month of June, 1965, a motel was erected on the aforesaid reaX property for which a certificate of occupancy was issued by the Town of Southold~ said certificate certified that the premises were a legal ~multiple residence' (motel). 6. That since the issuance of the aforesaid certificate of occupancy, the premises have been operated as a motel, which is defined by the Code of the Town of Southold, New York, Chapter 100, Zoning, S100-13 asr ...A building containing guest roo~s, each of which, or each pair of which, has a separate entrance leading directly from the outside of the building, with parking space conveniently located to each unit, and which is designed, used, or intended to be used, primarily for the accommodation of motor vehicle transients.... 7. That on February 11, 1980, petitioner wrote to the Southold Town Building Department statingt ...We have been the builder, owner, operators of the North Fork Motel for the past 16 years. As of late (past few years), same of our steady cliental have expressed the desire to purchase a unit outright. Therefore, we here- by apply for approval to do same.... 8. That on February 13, 1980, the Senior Building Inspector, ~EORGE H. FISHER, of the Town of Southold wrongfully and beyond the scope of his authority disapproved the petitioner~s request by notice of disapproval (annexed hereto as Exhibit 2) which stated~ -2- Inspector was regulation of real property 10. ...PLEASE TAKE NOTICE that your application dated (Letter) Feb. 11, 1980, for permit to change ~use' at the prent~ses lo~ated at 52325 County Road 27, 22400 Soundview Avenue, Southold, ia returned herewith and disapproved on the following grounds Ex~ating motel use with 41 guest roc~ns and 2 units with kitchen units (1 for manager and i suite) to privately owned units or condominiums 'use' which is not listed es a perm/tted use in this zoned district.... That the aforesaid disapproval of the Senior Building beyond his scope of authority and beyond the power of the Town of Southold in that the form of ownership of cannot be regulated by a municipality. That on or about March 20, 1980, petitioner appealed the aforesaid Building Inspectorgs decision of February 13, 1980, to the Zoning Board of Appeals of the To~n of Southold by petition dated March 20, 1980 (annexed hereto as Exhibit 3). 11. That upon information and belief, the aforesaid petition was prepared with the aid of and instructions from employees of the Building Department and/or Zoning Board of Appeals. 12. That the aforesaid petition dated March 20, 1980, erron- eously stated that it was a request for a variance when, in fact, it was merely an appeal of the decision of the Senior Building Inspector dated February 13, 1980. 13. That as a result of the filing of the petition dated March 20, 1980, the Zoning Board of Appeals of the Town of Southold determined that the proposed action was a 'Type II' action pursuant to Chapter 44 of the Southold Town code, Part 617 of the New York State Department of Environmental Conservation Act ~nd Article 8 of -3- the Environmental Conservation Law, which determination necessarily found that the proposed action did not have a significant effect on the environment, among other findings. 14. That on August 14, 1980, September 25, 1980, October 16, 1980, and November 20, 1980, applicant appeared before the Southold Town Zoning Board of Appeals in respect to the aforesaid application, copies of the minutes are annexed hereto as Exhibits 4, 5, 6, and 7, respectively. 15. At the aforesaid appearances before the Southold Town Zoning Board of A~peals of September 25, 1980 and November 20, 1980, the applicant, by its attorney, informed the Zoning Board of Appeals that no change in use was contemplated or requested and that merely a change in the form of ownership was proposed by the applicant. 16. That on or about Dec~m~er 17, 1980, petitioner, by its attorney, William H. Price, Jr., applied to the Building Department of the Town of Southold for a certificate of occupancy for unit or room %23 at the above described premises of petitioner. A copy of the application is annexed hereto as Exhibit 8. 17. That said application stated in part~ ...No change in use is contemplated or re- quested by the application for the certifi- cate of occupancy for unit or room %23 of the mots1. The request is specifically for a certificate of occupancy for unit or room %23 with the occupancy restricted to the use of 'the more or less temporary abiding place~ of ~motor vehicle transients~.... 18. That room or unit %23 is described as followe~ Located in petitioner's subject motel building on the second floor, being thirteen and one-half (13-1/2') feet in width and nineteen (19') feet -4- in length with bathroom facilities contained therein with two (2) separate entrances opening onto decks used in common with other motel rooms in the motel building. 19. That by notice of disapproval dated December 22, 1980, Southold Town Building Inspector EDWARD HINDERMAN wrongfully and beyond the scope of his authority refused to issue a certification that unit or rocca 23 was a legal motel room, stating~ ...Conveying a living ~nit of ExistingMotel to Single Ownership (Condom~ni~) does not keep within the Definition of a Motel (MOtor Vehicles Transients) and as such would not be a use perndtted under Special Exception.... A copy of the notice of disapproval is annexed hereto as Exhibit 9. 20. The aforesaid notice of disapproval dated December 22, 1980, as well as the prior notice of disapproval dated February 13, 1980, erroneously equated a change in the form of ownership of petitioner's real property with a change of use. 21. The aforesaid notice of disapproval dated December 22, 1980, was wrongful and beyond the scope of the authority of the Southold Town Building Inspector in that said officer does not have the power to regulate the form of ownership of real property. 22. That on December 29, 1980, petitioner presented to the Southold Town Zoning Board of Appeals an #amended appeal petition" which encompassed the appeal of the Building Inspector's decision of February 13, 1980 and the Building Inspector's decision of December 22, 1980. A copy of said "amended appeal petition" is annexed hereto as Exhibit 10. 23. The "amended appeal petition" dated December 29, 1980, stated in part~ -5- · ..The condorain[um type of menersh:[p has no fl~plioat~ons concerninq the t~pe of use of the real estate, its buildings and other improvements. The applicant has note requested to change the use of the real estate or buildings and does not intend to change the use of the real estate or build- ings o ° o o 24. The #amended appeal petition= dated December 29, 1980, requested that the Zoning Board of Appeals of the Town of Southold reverse the two aforesaid decisions of the Building Inspector (here- inabove mentioned as dated February 13, 1980 and December 22, 1980) and to direct the Building Inspector to issue certificates of occupancy in respect to the individual motel units stating that the units are legal motel rooms. 25. That on January 9, 1981, petitioner~s attorney received a letter dated January ?, 1981 from Charles Grigonis, Jr., Chairman of the Southold Town Zoning Board of Appeals, which deemed the =amended appeal= a new appeal and requested an additional filing fee and new =Enviro~mental Assessment Form= (a copy of the letter is annexed hereto as Exhibit 11). 26. That on January 14, 1981, petitioner complied with the aforesaid letter of CHARLES GRIGONIS, JR., Chairman of the Southold Town Zoning Board of Appeals, and forwarded the additional filing fee and new Environmental Assessment Form (annexed hereto as Exhibit 12). 27. That as a result of the filing by petitioner of the aforesaid Environmental Assessment Form, the Zoning Board of Appeals of the Town of Southold again found that the proposed action by the applicant was a =Type II~ action and, as such would have no significant effect on the environment. -6- 28. That on March 12, 1981, petitioner withdrew the initial appeal dated March 20, 1980. 29. That on April 23, 1981, a hearing was held on the amended appeal dated December 29, 1980. A copy of the minutes of said hearing are annexed hereto as Exhibit 13. 30. That at the hearing held on April 23, 1981, applicant presented to the Zoning Board of Appeals of the Town of Southold a memorandum (annexed hereto as Exhibit 14) which stated in part~ ...The applicant, North Fork Motel, Inc., intends to change the form of ownership of the premu[ses owned by applicant at 52325 County Route 48, formerly County Route 27, from corporate to condominium. There is now amore1 owned by applicant in corporate form at the subject prem- ises. The current use of the prenu[ses as a motel is a legal and approved use at that location by the Town of Southold. The result of applicant's proposed action, would be that the motel would be owned in the form of condominium. The applicant does not intend and is not contemplating a change from or an expan- sion of the current use, a motel. Also, the appli~ant does not intend and is not contemplating any structural changes to the existing building.... 31. That at the hearing of April 23, 1981, Richard Pellicane, Esq., testified on behalf of petitioner as an expert witness and stated in parts ...The thrust of what I am here to give an opinion on, I believe, is that the change in ownership of this motel from its cur- rent ownership into what we term as a condominium is nothing more than a change in ownership and it is not in any way, shape or form a change in use.... 32. Mr. Pellicane also te~tified in respect to the change -7- in ownership from corporate form to condominium form~ ...It is not within the capacity of the towns and villages to consider this a matter of zoning.... 33. That at said hearing of April 23, 1981, no evidence was presented to respondent Zoning Board of Appeals which contradicted petitioner's position that the proposed action was a mere change of ownership. 34. That at said hearing of April 23, 1981, CHA~?mS GRIGONIS, JR., Chairman of =espondent Zoning Board of Appeals of the Town of Southold stated~ ...No, condom~nium the more I read or hear about it, I valderstand ires Just a form of ownership, actually. It could be a motel thatts only open three months of the year maybe, but it's owned by several people.... 35. That as a result of the hearing held on April 23, 1981, the Zoning Board of Appeals of the Town of Southold unanimously ren- dered its decision dated June 25, 1981, and filed with the Southold Town Clerk on June 25, 1981 (annexed hereto as Exhibit 15) which re- fused to reverse the two aforesaid disapprovals of the Southold Town Building Inspector. 36. That the Zoning Board of Appeals of the Town of Southold failed to decide this matter within sixty (60) days after the final hearing as required by Town Law $267 ¶5. 37. That the aforesaid decision of the Zoning Board of Appeals of the Town of Southold dated June 25, 1981 was wrongful and beyond the scope of their authority in that the Town, the Zoning Board of Appeals, and the Building Inspector of the TOWn of Southold, did not have the power to regulate the form of ownership of real property. -8- 38. That the Zoning Board of Appeals of the Town of Southold should have reversed the two decisions of the Southold Town Building Inspector dated February 13, 1980 and December 22, 1980, respectively, because the zoning power of towns does not extend to the regulation of the form of ownership of real property. 39. That thirty (30) days has not elapsed since the filing of said decision of the Zoning Board of Appeals of the Town of Southold in the Office of the Southold Town Clerk. 40. That no previous application for an order to review the decision of said Zoning Board of Appeals has been made. WHEREFORE, your petitioner respectfully asks that pursuant to the provisions of the statute in such cases made and provided, this court review the aforesaid decision of said Zoning Board of Appeals and~ (1) Annul and set aside said decision as being beyond the scope of the authority of respondent Zoning Board of Appeals to regulate the form of ownership of real property! (2) To a~nul and set aside the decisions of respondent Building Inspector of the Town of Southold dated February 13, 1980 and December 22, 1980~ (3) Annul and set aside the decision of respondent Zoning Board of Appeals in that said decision was not timely made and filed pursuant to Town Law $26? ¶51 (4) Direct the respondent Zoning Board of Appeals to grant the appeals requested~ (5) Declare that the Southold Town Building Inspector and -9- respondent Zoning Board of Appeals do not have the power to restrict or regulate the form of ownership of the subject property of petitioner! (6) Declare that the respondent Southold Town Building Inspector and respondent Zoning Board of Appeals do not have the power to prevent the change or conversion of ownership of petitioner's sub- ject real property from corporate fom to condominium form! (7) For such other and further relief in the pre,rises as may be just ~nd proper. Datedl Southold, New York July 23, 1981 NORTH FORK MOTEL, INC. soy res en STATE OF NEW YORK) COUNTY OF SUFFOLK) EGBERT LAAKSO, being duly sworn, deposes and says that deponent is the President of NORTH FORK MOTEL, INC, the corporation named in the within action! that deponent has read the foregoing petition and knows the contents thereof~ and that the same is true to depOnent's own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters deponent believes it to be true. This verification is made by deponent because NORTH FORK MOTEL, INC. is a domestic corporation. Deponent is an officer thereof, to wit, its President. Eg~t Laakso Sworn to before me this 2~d day of July, 1981. #gTA~ I~IBLIC, ~lte m York Suflllk C~mt~ No. T%m Expi~'es Match 30, 1983 -10- .¢ P , f/ To · ,// ..... d. / '" z C ..... ~ ~'7 11,7 '\, r~ JOB NO. SH~k'TNO. ,'q. 5 ,5 - =.^.,.. ..o; s/L JOB NO. I iE JOB NO. DATE r RI='VISlO'NS 1! 11 ~k~,$ ~"-0 ~Li:[ L~uu iR¸ lOB / / / ? / r/ %o :T f-,,._ ~ REVIS ON5 ,/ ?