The URL can be used to link to this page

Home My WebLink About6473 BOARD MEMBERS Leslie Kanes Weisman, Chairperson James Dinizio, Jr. Gerard P. Goehringer George Homing Ken Schneider http://southoldtown.northfork.net ZONING BOARD OF APPEALS TOWN OF SOUTHOLD Southold Town Hall 53095 Main Road · P.O. Box 1179 Southold, NY 11971-0959 Office Location: Town Annex/First Floor, Capital One Bank 54375 Main Road (at Youngs Avenue) Southold, NY 11971 RECEIVED . / SouthOld Town Clerk FINDINGS, DELIBERATIONS ,~u'~u ..... IJI6TERMINATION MEETING OF AUGUST 4, 2011 ZBA FILE: 6473 NAME OF APPLICANT: George D. and Maria Kofinas SCTM# 1000-110-7-18.2 PROPERTY LOCATION: 552 East Road (adj. to Cutchogue Harbor (Great Peconic Bay)) Cutchogue NY SEQRA DETERMINATION: The Zoning Board of Appeals has visited the property under consideration in this application and determines that this review falls under the Type ll category of the State's List of Actions, without further steps under SEQRA. SUFFOLK COUNTY ADMINISTRATIVE CODE: This application was referred as required under the Suffolk County Administrative Code Sections A 14-14 to 23, and the Suffolk County Department of Planning issued its reply dated April 20, 2011 stating that this application is considered a matter for local determination as there appears to be no significant county-wide or inter-community impact. LWRP: The variance relief requested in this application is listed under the Minor Actions exempt list and is not subject to review under Chapter 268. PROPERTY FACTS/DESCRIPTION: Subject parcel is improved with a single-family two story dwelling, in- ground swimming pool, pool house and wood landings with steps down a bluff. It contains 44, 300 sq. R. with 20.00 feet on East Road, 240.88 feet along the north property line, 187.94 feet along the east property line, 276.27 feet on Cutchogue Harbor (Great Peconic Bay) and 170.87 feet on the west property line as shown on the survey dated May 13, 2010 prepared by Nathan Taft Corwin, III, LS. BASIS OF APPLICATION: Requests for Variance under Section 280-116, based on the Building Inspector's February 17, 2011 Notice of Disapproval concerning an application to rebuild a preexisting accessory bath house with deck, which proposed construction will be: 1) less than the code required setback of 75 feet from the bulkhead. RELIEF REQUESTED: The applicant proposes to rebuild an 8.1 fix 31.2 ftx 12.6 fi. high bath house and an 11 ft. x 50 fi. wood deck at a zero (0) foot setback from the bulkhead when the code requires 75 feet. The application includes adding the utility of electricity to the proposed bath house, as shown on the architectural drawing dated 10/10/08 as page A 101 prepared by East End Design Assoc. ADDITIONAL INFORMATION: The applicant submitted a Pre-Certificate of Occupancy dated 1983 listing a bath house and deck. Both of these were completely destroyed by a fire in 2006. The Board of Town Trustees held a hearing in January 2011 concerning this matter and "determined that the structures, as applied for, will have a detrimental effect upon the health, safety and general welfare of the people of the town." The Trustees subsequently disapproved the application to rebuild the structures. Additionally, the Trustees received comments in a letter from the Conservation Advisory Council which stated that at their meeting held January 13, 2010, "the CAC would Not Support this application under any circumstances." At the Public Hearing on June 2, 2011 the Board requested information from the applicant's agent regarding the physical locations of examples of accessory Page 2 - August 4,201 I ZBA File#6473 - Kofinas structures on the water in the photos that she presented at the hearing. The requested information was received on July 20, 2011. FINDINGS OF FACT/REASONS FOR BOARD ACTION: The Zoning Board of Appeals held a public hearing on this application on June 2, 2011 at which time written and oral evidence were presented. Based upon all testimony, documentation, personal inspection of the property and surrounding neighborhood, and other evidence, the Zoning Board finds the following facts to be true and relevant and makes the following fmdings: 1. Town Law §267-b(3)(b}(1). Graat of the variance will produce an undesirable change in the character of the neighborhood or a detriment to nearby properties because the original accessory building and deck have been completely destroyed and the code requires that non conforming buildings be made to substantially comply with the current setbacks. The agent for the applicant submitted photos and locations of five other accessory structures (the sixth being the applicant's original bath house) that were not in close proximity to the subject property, and none of which are as large as the bath house proposed by this applicant. Of the approximate 50 homes on Cutchogue Harbor only five have pre-existing accessory structures on the water. Therefore these non-conforming accessory structures are not characteristic of the neighborhood in which the applicant's property is located. Moreover, the fact that there are so few of these pre-existing non-conforming structures is an illustration that the core principal of zoning (the elimination of non conformities) is at work. 2. Town Law §267-b(3)(b)(2). The benefit sought by the applicant cannot be achieved by some method, feasible for the applicant to pursue, other than an area variance. The proposed location is at the toe of a steep bluff with a low bulkhead, approximately 2 feet high +/- above the beach, accessed from the subject property by a pre-existing long flight of wood steps. Locating the bath house in a conforming location at the top of the bluff would not be feasible because the utility of the structure as a bathhouse and boat storage shed would be severely diminished. Therefore, having the bath house and deck rebuilt in the proposed location will require a variance. 3. Town Law §267-b(3)(b}(3). The variance requested herein is mathematically substantial, and represents a 100% variance from the code requirement. The substantiality is even greater in light of the fact that the proposed accessory bath house would be located at the toe of a fragile bluff, on a bulkhead that is only about two or three feet above the level of the beach and at approximately 20 feet from the water. This proposed location is contrary to the intent of the code to protect shorelines as valuable assets of the Town. 4. Town Law §267-b(3)(b)(4) Evidence has been submitted to suggest that a variance in this residential community will have an adverse impact on the physical or environmental conditions in the neighborhood. Based upon the record before it, the Southold Board of Town Trustees and Southold Conservation Advisory Council disapproved this application on the basis of adverse environmental impacts. Further, the applicant did not submit any evidence to show otherwise. 5. Town Law §267-b(3)(b)(5). The difficulty has been self-created because the applicant waited too long to apply for a building permit to reconstruct the bath house. Town code 280-122 B (2), "Application for a permit to build or restore the damaged portion of any building damaged or destroyed as set forth in Subsection B (l) above shall be filed within one year of the date of such damage and shall be accompanied by plans for reconstruction which, as to such portion, shall comply with the requirements set forth above. If such permit is issued, it shall lapse one year thereafter unless reconstruction in accordance with the approved plans has been initiated." 6. Town Law §267-b. Denial of the requested relief is the minimum action necessary and adequate to preserve and protect the character of the neighborhood and the health, safety and welfare of the community. Page 3 August 4, 2011 ZBA File#6473 - Kofinas RESOLUTION OF THE BOARD: In considering all of the above factors and applying the balancing test under New York Town Law 267-B, motion was offered by Member Weisman (Chairperson), seconded by Member Horning, and duly carried, to DENY~ as applied for. Any deviation from the variance given such as extensions, or demolitions which are not shown on the applicant's diagrams or survey site maps, are not authorized under this application when involving nonconformities under the zoning code. This action does not authorize or condone any current or future use, setback or other feature of the subject property that may violate the Zoning Code, other than such uses, setbacks and other features as are expressly addressed in this action. The Board reserves the right to substitute a similar design that is de minimis in nature for an alteration that does not increase the degree of nonconformity. Vote of the Boar& Ayes: Members Weisman (Chairperson), Horning, Goehringer. Nay: Member Dinizio. Abstain: Member Schne?d,w~ This Resolutio~ was duly adopted (3-2). Leslie Kanes Weisman, Chair..p.erson Approved for filing ~ / xff /2011 6 x7~ NOTES: SURVEY OF PROPERTY SITU_A T£ CUTCHOGUE TOWN OF SOUTHOLD SUFFOLK COUNTY, NEW YORK S.C. TAX No. 1000-110-07-18.2 SCALE 1 "=20' OCTOBER 25, 2004 NOVEMBER 9. 2004 ADDED BUILDING ENVELOPE FEBRUARY 16, 2005 ADDED PROPOSED ADDITIONS DECEMBER 12, 2005 ADDED SEPTIC SYSTEM APRIL 17, 2006 REVISED PROPOSED SEPTIC SYSTEM JUNE 14, 2006 FOUNDATION LOCATION AUGUST 22, 2006 LOCATED BURNED ARF~A NOVEMBER 20, 2006 ADDED KEYSPAN EASEMENT JANUARY 16, 2007 LOCATE DRIVEWAY &: SEPTIC SYSTEM MAY 27, 2008 LOCATE FLAGGED WETLANDS MAY 15, 2010 ADDED LOT COVERAGE AREA = 44,300 sq. ff. (TO TIE LINE) 1.017 aC, 1. ELEVATIONS ARE REFERENCED TO N.G.V.D. 1929 DATUM EXISTING ELEVATIONS ARE SHOWN TFIUS:,~ EXISTING CONTOUR LINES ARE SHOWN THUS:---- LOT COVERAGE DATA OVER UP[.~4ND AREA (LOT AREA LAND}YARD OF TID. a/L WETIMBfD LINE) (UPLAND AREA = 39,405 sq. ft.) I DESCRIPTION [ AREA % LOT COVERAGE HOUSE INCLUDING CONC. BOARD 0~: AP?t:'ALS N,Y.S. LJc No. 50467 Nathan Taft Corwmn III Land Surveyor PHONE (631)727-2090 Fox (631)727 1727 ~4-36 Town Hall Annex 54375 State Route 25 (,ck~Main Rd. & Youngs Ave.) Southold, NY 11971 MAILING ADDRESS: P.O. Box 1179 Southold, N-Y 11971 Telephone: 631 765-1938 Fax: 631 765-3136 Toz LOCAL WATERFRONT REVITALIZATION PROGRAM TOWN OF SOUTHOLD MEMORANDUM Leslie Weisman, Chair Members of the Zoning Board of Appeals From: Mark Terry, Principal Planner LWRP Coordinator Date: May 31, 2011 Re~ Coastal Consistency Review for ZBA File Ref. GEORGE D. and MARIA KOFINAS #6473 SCTM#1000-110-7-18.2 Note that the Board of Trustees DENIED a Wetlands Permit for the action on January 20, 2010. GEORGE D. and MARIA KOFINAS #6473 - Request for Variance under Section 280-116, based on the Building Inspector's February 17, 2011 Notice of Disapproval concerning an application to rebuild a preexisting accessory bath house with deck, which proposed construction will be: 1 ) less than the code required setback of 75 feet from the bulkhead; location: 552 East Road (adj. to Cutchogue Harbor (Great Peconic Bay)) Cutchogue, NY SCTM#1000-110-7-18.2 The proposed action has been reviewed to Chapter 268, Waterfront Consistency Review of the Town of Southold Town Code and the Local Waterfront Revitalization Program (LWRP) Policy Standards. Based upon the information provided on the LWRP Consistency Assessment Form submitted to this department, as well as the records available to me, it is my recommendation that the action is EXEMPT from LWRP review pursuant to code section: 268-3. Definitions. MINOR ACTIONS item "B" which states: B. Replacement, rehabilitation or reconstruction of a structure or facility, in kind, on the same site, including upgrading buildings to meet building or fire codes, except for structures in areas designated by the Coastal Erosion Hazard Area (CEHA) law where structures may not be replaced, rehabilitated or reconstructed without a permit; The action is not located within the Coastal Erosion Hazard Area (CEHA). Cc: Jennifer Andaloro, Assistant Town Attorney COUNTY OF SUFFOLK STEVE LEVY SUFFOLK COUNTY EXECUTIVE ~C~V~D APR 6 2011 BOARD OF APPEALS DEPARTMENT OF PLANNING April20,2011 Town of Southold ZBA PO Box 1179 Southold, NY 11971 Att: Leslie K. Weisman Chairman Dear Ms. Weisman: Pursuant to the requirements of Sections A 14-14 thru A 14-25 of the Suffolk County Administrative Code, the following applications submitted to the Suffolk County Planning Commission are to be a matter for local determination as there appears to be no significant county-wide or inter-community impact. A decision of local determination should not be construed as either an approval or disapproval. Applicants Mu nieipal File Numbers Rose L. Milazzo Revocable Trust Weiland, Jane Kofinas, G. & M. #6471 #6472 #6473 TRK:ds Very truly yours, Theodore R. Klein Senior Planner LOCATION MAILING ADDRESS H. LEE DENNISON BLDG. - 4TH FLOOR P.O. BOX 6100 (631) 853-5191 100 VETERANS MEMORIAL HIGHWAY HAUPPAUGE, NY 11788-0099 TELECOPIER (631) 853-4044 FORM NO. 3 NOTICE OF DISAPPROVAL ' RECEIVED~ _ ~ DATE: February IT, 201a~pR 1 2 201~ TO: Abigail Wickham for G & M Kofmas P O Box 14224. Mattituck, NY 11952 BOARD OF APPEALS Please take notice that your application dated February 16, 2011 For a permit to rebuild a preexisting accessory bath house with deck at Location of property 552 East Road, Cutchogue, NY County Tax Map No. 1000 - Section 110 Block 7 Lot 18.2 Is returned herewith and disapproved on the following grounds: The proposed accessory bath house & "as built" deck is not permitted pursuant to Article XXII Section 280-116 which states: "All buildings or structures located on lots upon which a bulkhead .... and which are adiacent to tidal water bodies other than sounds shall be set back not less than 75 feet from the bulkhead." The accessory deck is indicated at 0' from the bulkhead. Authorized Signature [/ WOOD× /I-- ~ ~.u~, / I~DE'Ck' ~ ~ ' ~ 7.0 ~ , ~.DECK/ FRAME ~EACH HOUSE EXISTING FOOTPRINT BEACH HOUSE FRONT ELEVATION GEORGE KOFINAS RESIDENCE ~'~Z~ REVISION 10-10-08 BEACH HOUSE R,B~F EL~VA~,BN RECEIVED , .~-~ WOOD DECK TO BE REMOVED BEACH HOUSE REAR ELEVATION BOARD OF APPEALS BEACH HOUSE LEFff ELEVATION A1°1 STORACE CLOSET BEACH STO~A~E CHANCING ROOM BOARD OF APPEALS Fee: $ ~0"0 Filled By: Office Notes: For Office Use Only Date Assigned/Assignment No. Parcel House No. 552 Street East Road Hamlet Cutchogue SCTM 1000Section 110 Block 7~ Lot(s) 18.2 LotSize 1.017acres Zone R-40 1 (WE) APPEAL THE WRITTEN DETERMINATION OF THE BUILDING INSPECTOR DATED: July 20, 2010 BASED ON MAP DATED May 13, 2010 ~-t-l-I! ~ Applicant/Owner(s): George D. Kofinas and Maria Kofinas Mailing Address: 552 East Road, Cutchogue, New York 11935 Telephone: (718) 780-5065 Fax #: Email: NOTE: In addition to thc above please complete below if application is signed by applicant's anorney, agent, architect, builder, contract, vendee, etc and name of person who agents represents: Name of Representative: Abigail A. Wickham for ( X ) Owner, or ( ) Other: Agent's Address: Wickham, Bressler, Gordon & Geasa, P.C.. P.O. Box 1424, Mattituck, New York 11952 Telephone: (631) 298-8353 Fax #: (631) 298-8565 Email: wwblaw(~,aol.com Please check box to specify whom you wish correspondence to be mailed to, from the above names: [/Applicant/Owner(s) X Authorized Representative [~Other Name/Address WHEREBY THE BUILDING INSPECTOR REVIEWED MAP DATED May 13, 2010 DENIED AN APPLICATION DATED February 17, 2011 FOR: X Building Permit ca Certificate of Occupancy Pm-Certificate Occupancy ca Change of Use [2 Permit tbr As-Built Construction and Provision of the Zoning Ordinance Appealed. Indicate Article, Section, Subsection of Zoning Ordinance by numbers. Do not quote the code. Article XX[[ Section 280-116 Type of Appeal. An Appeal is made for: X A variance to the Zoning Code or Zoning Map. A Variance due to lack of access required by New York Town Law-Section 280-A Interpretation of the Town Code, Article Section X Reversal or Other a) 280-122 permits reconstruction in place. b) deck is from original structure - not "as built". A prior appeal X has or [] has not been made at any time with respect to this properly,,UNDER gtppea~. _ d No. 4198 Year 1993 and No. 5693 Year 2005 ~koCh. dec~rio~.~aHIC,-o'ma-. (Please be sure to research before completing this question or call our office to assist you.) RECEIVED APR ! 3 2011 REASONS FOR APPEAL (additional sheets may be used with preparer's signature) (1) An undesirable change will not be produced in the CHARACTER of the l~{~nl~%~hl~dg0~PaEAL$ detriment to nearby properties if granted, because: Thc bath house and deck are merely replacing the former bath house that was burnt by arson fire. Granting the variance would restore thc property to its original condition, and will have no undesirable change or detriment to thc neighborhood. The bath house and deck existed for decades on this property, well prior to zoning. Bath houses of this type are also located on approximately four (4) nearby properties, as well as in front of many other properties on Peconic Bay. The use is accessory to the residence and in compliance with zoning. Section 280-122A allows replacement. Since the deck existed before 1957, it is not "as built". (2) The benefit sought by the applicant CANNOT be achieved by some method feasible for the applicant to pursue, other than an area variance, because: There is no other location for thc structure. Further, due to the abrupt rise of thc bluff and its height, a beach house at the top of thc bluff will not afford thc owner the ability to usc it without great inconvenience. The bath house will bc used for changing clothes/beach wear, strong beach gear (life jackets, beach chairs, etc.), and kayaks and similar small water craft, which cannot bc easily transported up and down thc bluff and steps. (3) The amount of relief requested is not substantial because: It is replacing the original structure which existed for many years. The proposed structure will be slightly smaller than the original pre- existing structure and otherwise will look exactly the same and be used in the same manner. (4) The variance will NOT have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district because: It is replacing the original structure. It would be grossly unfair to deny thc applicant thc right to restore a valuable and useful structure which was destroyed by a malicious and criminal act. (5) Has the alleged difficulty been self-created? ( ) Yes, or (X) No. Further, Section 180-122A states that "nothing in this article" prevents the reconstruction. Are there Covenants and Restrictions concerning this land: ( ) Yes, or (X) No. This is the MINIMUM that is necessary and adequate, and at the same time preserve and protect the character of the neighborhood and the health, safety, and welfare of the community. Check this' box (X) IF A USE VARIANCE IS BEING REQUESTED, AND PLEASE COMPEL TE THE ATTACHED USE VARIANCE SHEET: (Please be sure to consult your attorney) Sworn to before me this dayof~2~? \ ~' '~ - ~ - - - ~:tary Public, State of NewYo~ Notary Public No. 01 MC4851459 Qualified In Suffo k Coun~ Commission ~ptres RECEIVED --- APR 1 3 BOARD OF APPEALS ATTACHMENT to Application to the Southold Town Board of Appeals Applicant/Owner: George D. Kofinas and Maria Kofinas SCTM# 1000-110-7-18.2 DE rm~ Ge~..~ez{. The project has a C pe 't~ L z,~, _::..zk:_. The Trustees denied the application without prejudice, not for environmental reasons, but because they felt the Town Code would not allow the structure without a variance from the ZBA. Applicant needed to clear the construction with the Town Building and Zoning Code provisions prior to their review. The applicant also appeals the decision of the Building Inspector to the extent that it refers to the decks as "as built". The applicant maintains that the decks are pre-existing and has submitted an affidavit from Gertrude Ali; copy attached, stating that the decks have existed at the site prior to zoning based on her personal knowledge. ' 4~6igh~ ~. Wickham, Authorized Agent 6/ zbaJkofinas/attachment STATE OF NEW YORK COUNTY OF SUFOLK SS IN THE MATTER OF THE APPLICATION oF George D. Kofinas and Maria Kofinas For a Variance to the Zoning Ordinance Re: 552 East Road, Cutchogue, New York 11935 SCTM# 1000-110-7-18.2 RECEIVED APR 1 3 2O~P'~-~ OARD AFFIDAVIT Gertrude M. Ali, being duly sWorn, deposes and says: 1. I reside at 500 East Road, Cutchogue, NY and am the neighbor of the Kofinas', owning property to the East of them. I have been familiar with their property for over 60 years and.have personal knowledge of the facts set forth in this affidavit. I make this affidavit to confirm that the bath house and the deck it have been in existence since prior to April, 1957, the inception of the Southold Town Zoning Ordinance.. 2. The property now owned by Kofinas was originally owned by my grandfather, K. Mobius, and he built the bathhouse and deck well prior to 1957. There was always a deck attached to the east side of the bathhouse, and a walkway in front. The bathhouse consisted of a shower room and two other compartments. 3. My mother, Agnes Mothersele, later owned the property and years ago fixed up the structure, but did not change the bathhouse or deck configuration, except perhaps to add the decking on the west side. 4. In recent years, there were problems with young people using the bathhouse illegally and it was as a result of that problem that the structure burned down. Gertrude Ali Sworn to before me February //~, 2011 N o¢~r/y Public- AE~GAIL A. WICKHAM Notary Public State of New York No. 52-4642871 Qualified in Suffolk County Commission Expires Sept. $0, ~. ,~ TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN HALL SOUTHOLD, NY 11971 TEL: (631) 765-1802 FAX: (631) 765-9502 www. n or tJafor ken eUS o utl~ old/ PERMIT NO. Examined ,20 Approved ,20__ Mail to: Disapproved a/c ~ .7,/.~'_~,/fo ' Phone: Expiration ,20 BUILDLMG PERMIT APPLICATION CHECKLIS~ Do you have or need the following, bofor* applying~ Bom-d of Health 4 set~ of Building PI~n~ Planning Board approval Surwy Ch~ck Septic Form N,Y,S,D.E.C. Trustees Contact: ~ Building Inspector I ~ I Date l&ay 4, ,2010 ~--'-'"[~._q?J.;^,, I INSTRUCTIONS -- ~letely fi/led m by typewriter or m ink and submitted to the Building Inspector w~,th 3 sets of plans, accurate plot plan to scale. Fee according to schedule. b. Plot plan showing location of lot and of buildings on premises, relationship to adjoJnlng premises or public streets or ~eas, and wateratays. c. The work covered by this application may not be commenced before ismmnce of Building Pm-mit d. Upon approval of this application, the Building Impector will issue a Building Perrrfit to the applicant Such a pem2it shall be kept on the premi.,es available for inspection throughout the work. e. No building shall be 0ccupled or used in whole or in part for any pm-pose what so ever unt/l the Building Inspector issues a Certificate of Occupancy. f,. Every building p~mit shall expire if the work authorized has not commenced with{n 12 months ~' the date of issuance;0r has not been completed within 18 mouths from such date. If no zoning ~aendmants or oth~r regulatiom affecting the property have been enacted in the int~'kn, the Building Inspector may authorize, in writing, the extension of the p~mit for an addition six monttia. Ther~ffer, a new permit sMll be required. APPLICATION IS HEREBY MADE to the Building Department for the is~umce cfa Building P~mlt pm'mmnt to the Building Zone Ordinance of the Tow~ of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations, for the construction of buildings, additions, or alterations or for removal or demolition ~ h~trt described. The applie.ant a.grees to comply wi.th all applicable laws, ordinances, building code, houdog code, and r.~gul~tiom, and to srlm{t .. . authorized respecters on prermses and m building for necesssry mspectiom -," ~/~ignatm~ of ;ppllcant or nme, ifa eo~onttion) l/ P.O. Box 1424~ Mattituck~ I~ 11952 (Mailing address of applieamt) State whether applicant is owner, lessee, agent, architect, engineer, general contractor, electrician, Plumber or builder ARent Name of owner of premises George D. Kofinas and Maria Kofinas (As on the tax roll or latest deed) If applicant is a corporation, signature of duly authorized officer (Name and title of corporate officer) Builders License No. Plumbers License No. Electricians License No. Other Trade*s License No. 1. Location of land on which proposed work will be done: 552 East Road House Number Street County Tax Map No. I000 Sedtion Subdivision ~ (Name) 110 t4A/!,,¥Z: ~ Lot Filed Map No. LOt 2. State existiug use and occupancy of premises and intended use and occupancy of proposed consl~uction: a. Existing useandoecupancy single family dwelling, pool, poolhouse, deck & bath house b. Intended use and occupancy same with replacement of deck & bath house 3. Nature of work (chpck which applicable): New Building x ~Repair Removal Demolition' 4. Estimated Cost 5. If~lwell~ng, number of dwelling units If garage, number of cars Addition Alteration Other Work Fee (Description) (To be paid on filing this application) Number of dwelling units on each floor 6. If business, commercial or mixed occupancy, specify nature and extent of each type of use. 60'x45' 2-story dwelling with 20'x70' irreg, patio; 20'x40' in ground pool; 8'x28' pool house 7. Dimansions of existing structures, if any: Front Rear .Depth Height Number of Stories Dimensions of same structure with alterat ons or add't OhS Front ' Depth Height. Number o~,~nes .... ..,. -,{ ~,. 8. Dimensions of entire new constmction: Front 32.2' Rear !,',De~th 8.2' Height 12' Number of Stories 1 .9. Size oflot: Front 66'x110.87' Rear 187.94' .Depth ~40']276,',.,.,~:!i/;i: .,:---~J ] I0. Date of Purchase 9/31/91 Name of Former evener Nicholas Newbauer ................ 11. Zone pr use district in which premises are situated R-4 0 12. Does proposed construction violate any zoning law, ordinance or regulation? YES __ NO__ 13. Will lot be re-graded? YES__ NO x Will excess fill be removed from premises? YES__ NO__ 14. Names of Owner ofpren~scs George Kofinas Address552 East Rd., PhoneNo. Name of Amhitcct Address Phone No Name of Contractor Address Phone No. 15 a. Is this property wffb~n 100 feet cfa tidal wetland or a freshwater wetland? *YES ~NO * IF 'YES, SOLrTHOLD TOWN TKUS~I~ES & D.E.C. PER2VflTS M_AY BE P, EQLT~D. b. Ist~dspropertyw~tb~n300feetofatidalwefland?*yES x NO * IF 'YES, D.E.C. PEPdvIITS lVIAY BE REQLriRED. 16. 1~ovide survey, to scale, with accurate foundation plan and distances to property lines. 17. If elevation at any point on property is at 10 feet or below, must provide topographical data on survey. STATB OF NEW YORK) SS: COUNTY OF SUFFOLK) Abisail A. Wickham being duly sworn, deposes and says that (s)he is the applicant (Name of individual si~h~g contract) above named, (S)He is the Agent (Contractoi, Agent, Corporate O~eer, etc.) of sald owner or owners, and is duly authorized to perform or have performed the said work and to make and file this appHcat/on; that all statement~ contained in this application are true to the best of his knowledge and bcli~ and that the work will be performed in the manner set forth, in the application filed therewith. DONNA McGAHAN Notary Public, State of New York No. 01M04851459 Ouall.fled/n 8uffolk County Oommlsmon P. xpires ,~g. 18, w APPLICANT'S PROJECT DESCRIPTION (For ZBA Reference) Applicant: George D. Korinas & Maria Kofinas RECEIVED BOARD OF APPEALS Date Prepared: September 15, 2010 I. For Demolition of Existing Building Areas Please describeareasbeingremoved: Wood Deck (easterly portion destroyed by arson fire) II. New Construction Areas (New Dwelling or New Additions/Extensions): Dimensions of first floor extension: New "In-kind in-place" replacement of an 8' x 32' bath house Dimensions of new second floor: n/a a~ repair/replacement as required of "as builC' wood deck. Dimensions of floor above second level: n/a Height (from finished ground to top of ridge): Is basement or lowest floor area being constructed? If yes, please provide height (above ground) measured from natural existing grade to first floor: Iii. Proposed Construction Description (Alterations or Structural Changes) (attach extra sheet if necessary) - Please describe building areas: Number of Floors and General Characteristics BEFORE Alterations: Number of Floors and Changes WITH Alterations: IV. Calculations of building areas and lot coverage (from surveyor): Existing square footage of buildings on your property: 6,374 s q. f t. Proposed increase of building coverage: -0- Square footage ofyour lot: 44~300. sq. ft. Percentage of coverage of your lot by building area: 16.18% V. Purpose ofNew Construction: To replace the existing bath house that was destroyed b7 arson, and repair/replace as required of "as built" wood deck. VI. Please describe the land contours (flat, slope %, heavily wooded, marsh area, etc.) on your land and how it relates to the difficulty in meeting the code requirement(s): ( Please submit seven (7) photos, labeled to show different angles of yard areas after staking corners for new construction), and photos of building area to be altered with yard view. 7/2002; 2/2005; 1/2007 RECE_¥ED P*QAR~'*) mE A~EALS [~ECEIVED BOAf'~D OF APPEALS OAIRD OF APPEALS QUESTIONNAIRE FOR FILING WITH YOUR Z.B.A. APPLICATION RECEIVED APR 1 3 7011 Is the stth.~t premises listed on the real estate market for sale? WNo BOARD OF APPEALS Are there any proposals to change or alter land contours? [--~No [~fes, please explain on attached sheet. 1) Are there areas that contain sand or wetland grasses'? Yes 2) Are these areas shown on the map submitted with this application? Ye s 3) Is the property bulkheaded between the wetlands area and the upland building area? Yes 4) If your property contains wetlands or pond areas, hav~e~vou contacted the office of the Town Trustees for its determination of jurisdiction? )~o-~. Please, con,~f~rrp,__s~am_s o~ ypu? ' ~'~Tf¢' inquiry or application with the Trustees: I)eatec~ w]o ]>ve4t~ic.~ -¢~o~Zt~lTbt,ll.~.cle+erm~m~'e~ and if issued, please attach copies of permit with conditionsC~nd appro~ved mal~. O D. Is there a depression or sloping elevation near the area of proposed construction at or below five feet above mean sea level? Are there any patios, concrete barriers, bulkheads or fences that exist and are not shown on the survey map that you are submitting? None (Please show area of these structures on a diagram if any exist. Or state "none" on the above line, if applicable.) Do you have any construction taking place at this time concerning your prem'ses ? Ilo If yes, please submit a copy of your building permit and map as approved by the Building Department and describe: G. Do you or any co-owner also own other land close to this parcel'? Ilo the proximity of your lands on your map with this application. If yes, please label H. Please list present use or operations conducted at this parcel Single Family Residence and proposed use Single Family Residence (examples: existing: single-family; proposed: same with garage or pool, or other description.) A~Zhorized Signature and Date 2/05; 1/07 Laserfiche WebLink Page 1 of 1 Southold Webllnk .e~pl Logout I MyWeblJnk ....... B~ro~w,s~? ..... Search J, ~ x~ Page 2 of 16 ~ [] ~,~ ~) 1~-~ '] ~ ~OO~ 35.52% ~ vag*s~ :,o~s .. 2 Town of_Southold > Zoning Board of Appeals (ZBA) > BO~ Ac~ons > 1993 > 4198 APt? 71 8 2Oft BOARD OF APPEAL http://24.38.28.228:2040/weblink7/DocView.aspx?id=87752 3/24/2011 Laserfiche WebLink Page 1 of 1 $outhold Weblink Browse Search Jump to thumbnail Help I Logou~ i MyWebLink ~[~J []lffi'~'~G ~ Pages 3 to 16 Town_of_Southo~d · Zoning Board of Appeals (ZBA) · Board Actions · 1993 · 4198 APR 1 3 2011 BOARD OF APPEALS http//24.38.28.228:2040/weblink7/DocView.aspx?id=87752 3/24/2011 Laserfiche WebLink Page 1 of 1 $outhold Weblink Browse Search Jump to thumbnail .~ GO[ Help i Logout I MyWebLink Town_of_So~Jthol~ · Zoning Board of Appeals (ZBA) · Board Actions · 1993 > 4198 RECEIVED AND FILED BY BOARD OF APPEALS http://24.38.28.228:2040/weblink7/DocView.aspx?id=87752 3/24/2011 Lase.rfiche WebLink Page 1 of 1 $outhold Weblink Browse Search Template: Board Actions Application# 5693 Tax_Map_Number Additional TM # (surround with *) Owners_Last_Name Kofinas Address 552 East Rd Hamlet Cutchogue Jurisdiction General Yard Variance Jurisdiction II Date 5/12/2005 Help Legout My WebLink [~'1[] ~l~lOo~ 35.94% (~) Pages 1 to 13 Tewn_of_Southold · Zoning Board of Appeals (ZBA) · BoarP Actions > 2005 > 5693 RECEIVED BOARD OF APPEALS Powered by LaserSche WebLink vem~on 705 Laserfiche JS a registered tradema~ of CompulJnk Management Cen~er Inc This ~py m r~ister~ to Town of ~u~old http://24.38.28.228:2040/weblink7/DocView.aspx?id=220596 3/24/2011 Lase.rfiche WebLink Page ! of 1 Southold Weblink Browse Search Template: Board Actions Application# 5693 Tax_Map_Number 1000-110.-7-18.2 Additional TM # (surround with *) Owners_Last_Name Kofinas Address 552 East Rd Hamlet Cutchogue Jurisdiction General Yard Vadance Jurisdiction II Date 5/12/2005 ~][] [l[IO(~l 35.940/0 :)~:~ ~ Pages 2 m 13 RECEIVED BOARD OF AppEALS http://24.38.28.228:2040/weblink7/DocView.aspx?id--220596 3/24/2011 NEW YORK ST/~DEPARTMENT OF ENVIRONMEN~CONSERVATION DEC PERMIT NUMBER I ~ 1'4738-035(53/00002 ~ IFACILITY/PROGRAM NUMBER(S) PERMIT Umler the Environmental Conservation Law EFFECI'IVE DATE November 5, 2008 EXPIRATION DATE(S) November 4, 2013 I TYPE OF PERMIT · New [] Ra~(=wal [] Modification [] Permit to Construct [:3 Permit t(= Operate [] Article 15, Title 5: Protectfon of Wa- [] 6NYCRR 608: Water Quality tars Certification Article 15, Till(= 15: Water Supply [] Article 15, TiUe 15: Water Transport E:] Article 15, Title 15: Long Island Wells [] Article 15, Title 27: Wild, Scenic and Recreational Rivers [] Article 17, Titles 7, 8: SPDES E] Article 19: Air Pcllution Control [] Afficle23, Titie27: Mined Land Reclamation [] Article 24: Freshwater Wetlands · Article 25: Tidal Wetlands [] Article 27, Title 7; 6NYCRR 360: Solid Waste Management [] Article 27, Title 9; 6NYCRR 373: Hazardous Waste Management [] Article 34: Coastal Erosion Management Article 36: Floodplain Management Articles 1, 3, 17, 19, 27, 37; 8NYCRR 380: Radiation Control PERMIT ISSUED TO George Kofinas ADDRESS OF PERMITTER ITELEPHONE NUMBER (201) 780-5070 100 Winston Drive-Apt. PHH. Cliffside Park NJ 07010 CONTACT PERSON FOR PERMITTED WORK Catherine Mesiano, Inc., 12 Mill Pond Lane, East Moriches NY 11940 NAME AND ADDRESS OF PROJECT/FACILITY , Kofinas PropedT, 552 East Road~ Cutcho~ua LOCATION OF PROJECT/FACiLITY , SCTM # 1000-110-7-18.2 COUNTY TOWN Suffolk Southold Description of Authorized Acfivib/ ITELEPHONE NUMBER (631) 878-8951 WATERCOURSE Great Peconic Bay INYTM COORDINATES E:713.3 N:4542.6 Reconstruct in-kind / in-place the bath house and deck immediately adjacent to the bath house that were destroyed by fire (see approved plans for dimensions). Remove the existing decking on the east side near the stairway and install 2 inch by 12 inch by 12 foot planks (cap) on top of 100 linear feet of the existing bulkhead. All work shall be performed in accordance with the conditions of this permit and the plans prepared by East End Design Associates, LLC last revised on 10/10/08 (sheets 1 and 2 of 3), and 5/29/08 (sheet 3 of 3), all stamped NYSDEC approved on 11/5/08. By .~.:.:?;ence of thi(= permit the p~';,;~'~-~ agrees that the permit ,'~ conthgent upon strict compti(=nce with the ECL a a ,re~lulations. Ih(= Generel,Gondl Ions s~ecilied~see n~.m 2 - 4 ~"'~ ... e- = ............... ' p~ cable Il PERMITADMINg~RATOR: I ADDRESS Il · . SUNY~Stony Brook 50 Circe Road~y 11790-3409 II W- and ~ AUTHORIZED S GNATuRE/ "" ' ' ',' .~ ' IDATE~PR13z011 b BOARD OF APPFAL$ 1. The storage of construction equipment and materials shall be confined to the portion of the property landward of the top of the bluff. 2. Necessary erosion control measures e.g., staked haybales, silt fencing, etc. are to be placed on the downslope edge of any disturbed areas. This sediment barrier is to be put in place before any disturbance of the ground occurs and is to be maintained in good and functional condition until thick vegetative cover is established. 3. During construction, concrete or leachate shall not escape or be discharged, nor shall washings from transit mix trucks, mixers, or other devices enter tidal wetlands and/or protected buffer areas. 4. All areas of soil disturbance resulting from the approved project shall be stabilized with appropriate vegetation (grasses, etc.) immediately following project com..pleti.on or pri.o,r to permit expiration, whichever comes first. If the project site remains inactive mr more tnan 48 hours or planting is impractical due to the season, then the area shall be stabilized with straw or hay mulch or jute matting until weather conditions favor germination. 5. The use of wood treated with pentachlorophenol or other wood treatment not specifically approved by the Department for use in wetlands and/or madne waters, is strictly prohibited in the construction of structures that will be in contact with tidal waters. 6. There shall be no disturbance to vegetated tidal wetlands or protected buffer areas as a result of the permitted activities. 7. Any debris or excess material from construction of this project shall be completely removed from the adjacent area and removed to an approved upland area for disposal. No debris is permitted in tidal wetlands or protected buffer areas. 8. At least 48 hours prior to commencement of the project, the permittee and contractor shall sign and return the top portion of the enclosed notification form certifying that they are fully aware of, and understand the terms and conditions of, this permit. Within 30 days of the completion of the project, the bottom portion of the form must also be signed and returned, along with photographs of the completed work. RECEIVED APR 1 3 20~ BOARD OF APPEALS DEC PE~IT NUMBER REC~IVE~. ~ APR 1 3 20~ BOARD OF APPEALS AGRICULTURAL DATA STATEMENT ZONING BOARD OF APPEALS TOWN OF SOUTHOLD RECEIVED APR 1 3 BOARD OF APPEALS WHEN TO USE THIS FORM: The form must be completed by the applicant for any special use permit, site plan approval, use variance, or subdivision approval on property within an agricultural district OR within SOO feet of alarm operaiion located in agricultural district..411 applications requiring an agricultural data statement must be referred'to the Suffolk County Department of Pinnning gn accordance with Sections 259- m and 239~n of the General MunicipalLaw. 1) Name of Applicant: George D. Kofinas and Maria Kofinas 2) AddressofApplicant: 552 East Road, Cutcho~ue, New York 11935 3) Name of Land Owner (ffother than applicant): same as applicant 4) Address ofLand Owner: 552 East Road, Cutchogue, New York 11935 5)mescriptionofProposedProject: "In-kind 'in-place" replacement of an 8' x 32' bath house and repair/replacement as required of "as built" wood deck. 6) Location of Property (road and tax map number): _ 552 East Road, Cutchogue, New York 11935 SCTM#: 1000-110-7-18.2 7) Is thc parcel within an agricultural district?~No [~Yes If yes, Agricultural District Number 8) Is t~is parcel actively farmed? J~No I-lYes 9) Name and address of any ov~nar(S) of land within the agricultural distric! containing active farm operation(s) located 500 feet of the boundary of the proposed project. (Information may be available through the Town Assessors Office, Town Hall location (765-1937} or from any public computer at the Town Hall locations by viewing the parcel numbers on the Town of Southold Real Property Tax System. ~meandAddress o (Please u,s.e back side of page if more than six property owners are identified.) The lot numbers may be obtained, in advance, when requested from either the Office of the Planning Board at 765-193J~or the Zoning Board of/?ppeals at 765-1809. ~,.-~-S~t~atu~eo-fAppli;ant ~F --'. ' Da~e ~ iN.~ local board will solicit comments from the owners of land idennfied above in order to consider ~hc effect of the proposed action on their farm operation. Solicitation will.be made by supplying a copy of tliis statement. 2. Comm~nt~ returned to the local board will b~ taken into consideration as part oftbe overall review of this application. 3. Copies of the completed Agricultural Data Statement shall be sent by applicant and/or the clerk of the board to the property owners ~dentiiied above. The cost for mailing shall be pa d by the aplJEc.ant at the time the application is submitted for review. Failure to pay at such time means the application is not complete and cannot be acted upon by the board. 1-14-09 14-16-4 (9/95)~Text 12 PROJECT I.D. NUMSER RECEIVED 617.20 SEQR Appendix C State Environmental Quality R~e'~wRD OF APPEALS SHORT ENVIRONMENTAL ASSESSMENT FORM For UNLISTED ACTIONS Only .PART I--PROJECT INFORMATION 0'o be completed by Applicant or Project sponsor) · I 1. APPLICANT/SPONSOR 2. PROJECT NAME George D. Kofinas & Maria Kofinas Variance Application 3. PROJECT LOCATION: Municipality Town of Southold Coun,y Suffolk 4. PRECISE LOCATION (Street add~'es$ and road Intersections. prominent landmarks, etc.. ot provide map) 552 East Road, Cutchogue, NY [[935 - SCTM#[000-[[0-7-[8.2, which is 578.88 east from the corner formed by the intersection of the southerly side of East Road and the easterly side of Pequash Avenue (a/k/a Fleet's Neck). 5. IS PROPOSED ACTION: [] New ~] Expansion [] Modification/alteration 6, DESCRIBE PROJECT BRIEFLY: "In-kind in-place" replacement of an 8' x 32' bath house and repair/replacement as required of "as built" wood deck. 7. AMOUNT OF t. AND AFFECTED: Initially 1.0 ! 7 ,=~es Uttlmately ]. * 017 acres 8. WILL PROPOSED ACTION COMPLY WITH EXISTING ZONING OR OTHER EXISTING LAND USE RESTRICTIONS? [] Yes [] No II NO, describe bdafly 9, WHAT IS PRESENT LAND USE IN VICINITY OF PROJECT? STATE OR LOCAL)? [] Yes [] NO If yes, list sga~cy(s) and petmW&pl~OVll$ Town of Southold Board of Trustees - Trustees Permit Town of Southold Building Dept. - Building Permit and C.O. NYS DEC - DEC Permit 12. AS A RESULT OF PROPOSED ACTION WILL EXISTING PERMIT/APPROVAL REQUIRE MODiFICA'~ON? DY., r~No I CERTIFY TH~T/T/~-IE INFOR,MATtON pRSVIDED ~OVE IS TRUE TO THE mEET OF MY KNOWLEDGE Signature: Abel A. ~ickham, Agent I! the action is in the Coastal Area, and you am a state agency, complete the Coastal Assessment Form before proceeding with this assessment OVER ,.PART II--ENVIRONMENTAL ASSESSMENT (To be completed ~y Agency) WILL ACTION RECE[VECOORDINATED REVIEW AS PROVIDED FOR UNLISTED ACTIONS IN 6 NYCRR PART6t757 If Nc.a negat~¥e cec~aral,or' COULD ACTION RESULT [N ANY ADVERSE EFFECTS ASSOCIATED WITH THE FOLLOWING. IAr~wer$ may ce ~anowntIen d *egiOlel C7. Other impacts (including cl~anges in use Of either Quantity or type ol energy)? Explain briefly. D. WILL THE PROJECT HAVE AN IMPACT ON THE ENVIRONMENTAL CHARACTERISTICS THAT CAUSED THE ESTABt. JSHMENT OF A CEA? [] Yes [] No E. I$ THERE, OR IS THERE L~KELY TO BE, CONTROVERSY RELATED TO POTENTIAL ADVERSE ENVIRONMENTAL IMPACTS? ~i Yes [] NO If Yes, explain Prietly PART Ill--DETERMINATION OF SIGNIFICANCE (To be completed by Agency) INSTRUCTIONS: For eact~ adverse effect identified above, determine whether it is substantial, large, important or otherwise significant. Eacil effect s~ou[d be assessed in connection with its (a) setting (i.e. urban or rural); (b) probability of occurring; (c) duration; (d) irrevere[bility; (e) geographic scope; and (1) magnitude. If necessary, add attachments or reference supporting materials. Ensure that exolanations contain sufficient detail to s~ow that all relevant adverse impacts have been identified anti adequately adclressed, if question D of Part II was checked yes, the determination and significance must evaJuats the polential impact of the proposec~ action on the environmenlal characteristics of the CEA. [] Check this box if you have identified one or more potentially large or significant adverse ire'iS,acts which MAY occur, Then proceed directly to the FULL EAF and/or prepare a positive declaration. [] Check this box if you have determined, based on the information and analysis above and any Supporting documentation, that the proposed action WILL NOT result in any significant adverse environmental impacts AND provide on attachments as necessary, the reasons supporting this determination: APPLICANT TRANSACTIONAL DISCLOSURE FORM (FOR SUBMISSION BY OWNER and OWNER'S AGENT) The Town of Southold's Code of Ethics prohibits conflicts of interest on the part of Town officers and employees. The purpose of this form is to provide information, which can alert the Town of possible conflicts of interest and allow it to take whatever action is necessary to avoid same. YOURNAME: (Last name, first name, middle ~nitia~, unless you are applying in the name of someone else or other entity, such as a company. If so, indicate the ~ other person or company name.) that apply.) NATURE OF APPLICATION: (Check all Tax Grievance _ Variance X [ Special Exception If "Other", i RECEIVED APR 1 ?0 1 BOARD OF APPEALS name the activity: Change of Zone Approval of Plat 1 Exemption from Plat or Official Map Other Do you personally, (or through your company, spouse, sibling, parent, or child) have a relationship with any officer or employee of the Town of Southold? "Relationship" includes by blood, marriage, or business interest. "Business interest" means a business, including a partnership, in which the Town officer or employee has even a partial ownership of (or employment by) a corporation in which the Town officer or employee owns more than 5% of the shares. YEs l I No [-)X ] Complete the balance of this form and date and sign below where indicated. Name of person employed by the Town of Southold: Title or position of that person: Describe that relationship between yourself (the applicant) and the Town officer or employee. Either check the appropriate line A through D (below) and/or describe the relationship in the space provided. The Town officer or employee or his or her spouse, sibling, parent, or child is (check all that apply): IA) the owner of greater than 5% of the shares of the corporate stock of the applicant (when the applicant is a corporation); 1 B) the legal or beneficial owner of any interest in a non-corporate entity (when the applicant is not a corporation); ] C) an officer, director, partner, or employee of the applicant; or ] D) the actual applicant. DESCRIPTION OF RELATIONSHIP Submitted this/~d~,~gl~y 9f,, S ~p/~.. ~ 2010 Signature: ff~-e.~J ~ __ Print Nan~e:Ab/',-gat-1 A. !~'±ckham / :mASS^CT o A). SCL Stn (FOR SUBMISSION BY OWN~eR ~,~ OWNER S AGENT) The Tov~ of $outhold'a Code of Ethie~ t~tohlbitz co~i_c!,~_o i~.jttL~t on ~ ps~ ofTo~ o~c~ ~ss{bl~.con~ic~ of interest and allow it t° take ~h al~K~aucc~sa~ to avoid s~c. ff~/ ~ name fi~t n~e, m~ddte )mUll, unless, you a~ applying m ~e ofsom~nccls~oroth~m~,~hasac~pany. Ifso, indicale~ BOARD OF APPEALS ot~ pa~on or ~mpany name.) Vari~cc Speci~d Exception name the activity: ............. NATURE OF APFLICATION: {Check all t~at apply.) : T~xaricvan~c 'i X "[.[ DO y~u personally, (or thrangh your c~ny, spouae~ sibling, parer, or child) have a relationship with;any officer or omployce of th~ Towin of S~oId? "Rcla~onship" includ~ by blood, man'ge, ~b~inesa in.st." ' ~ ' ~" ' : B~s mt~i m~ a business, inc~ding a ~ip, in wMch ~e Town officer ~ employ~ ~ ~ a ~ o~e~ip of (o~ ~ple~t by) a co~agon in whiab the To~ offic~ pr ~glo~ o~S mote ~ ~:~e tho ba'i~! of this fo~ a~~h~ Indicated. Name ofper~on employed by the Tow~ofSouO!old: , ,, Title or position of that pecan: Describe that m!atio~ship bctwcen y~raelf ()~C ap~l, icmt) and the Town officer or employee, Fither check the appropriate line A through D Co~law)' and/or describe the relationship in the space provided. The ~own officer or employee or ~is o~ her s~Use; sibling, parent, or child is ~cck all that app.); ' ~ A) ~e ~ of~ ~ 5% ~ft~ ah~of~e co.rotc stock ~ of the a~lioant (wh~ ~c ~phc~t ~ a ~orat~on); , I B) ~ legal or ~ci~ ~ (~ n the apphca~ ~s ~0t a Co~Uon)~ ~ C) an offi~, d~r, p~, er c~!oy~ of the ~pplicant; or ~D) thc actual applicant. DESCRIPTION OF RELATIONSHIP Pri~tI~amc: George D~'Kofiz%as ~-~ fl0R. S~M)SSION BY O~ ~d O~R S AG~ ~e Tow~_ofSO~0 d's ~d~ of E~iCs ~o~(N~ con~ of im~LO~ ~ ~a~ o~ Tow~ O~q~ an~ employes ..~e ~o~f fl~ s fo~ is t0 ~0~fl i~fo~afion which c~mal~ ~c Town of ~sS~bJ_c~onfliCn of~intcr~t and ~ll0w i~ to take~what~cli~n is~gas~ ~ avoid same, YOI3R NAME: MARIA KOFINAS ,.. i , /last name first name mldcl e ~n~'al un ea.4 you ar: app y'ng 'n the of ~m~nc clsc or mhe? cntlW, tach as a~c0mpany. Ifso, md)c~e the o~er person or company ~) RECEIVED APR 1 3 2011 NATURE OF APPLICATJON: fcheek all that ~P~ly.) I X Ch~ge of 7~ne I Exomption ~m :Plat ' or Official ~p [ ' '[ m~agc, or bBsincss int~est. "Busi2~s inter" M~ a busincs% inclu~ a ~a~ship, in Com~l~ the b~ance ofthis fo~ and d~ ~ ~i~ bd~ ~here indJ~t~ N~e ofperso~ployed by ~ To~ of Soq~old: ; ~ Title. or ~aidon of. i~at pe~o~ ~ ........... Ei~ ch~[ ~e a~opfiate l~e A ~u~ D ~elow) ~er d~c~ ~e ml~fiom~Jp ~n ~e space ~oWded, BOARD OF APPEALS ThelTown officer Or employe~ or I~{$ or hcr Spouse, sibling, paront, or child is (cheek all that apply): ' ~ A). tha owner of greater than, 5% of Ce shares, ,0fthe corporate stock ofth~ applic~t (when thc aJ~Plie~, t L~ a~ aN'potation); ~ B) the legal or beneficizl owner of agy iht&, alt in a non-corporate ~ntity (when th, applicant JS =f~t ~ enq~ratlott}; C) an officer, director, portne~ 'or employS, of thc applicant; or , D) the actual applicant, DESCRIPTION OFI RELATIONSI-LIP t · George Kofinas 552 East Road, Cutchogue SCTM # 1000-110-7-18.2 Town of Southold LWRP CONSISTENCY ASSESSMENT FORM A. INSTRUCTIONS RECEIV%~c/7~ APR 1 3 2011 BOARD OF APPEALS 1. All applicants for permits* including Town of Southold agencies, shall complete this CCAF for proposed actions that are subject to the Town of Southold Waterfront Consistency Review Law. This assessment is intended to supplement other information used by a Town of Southold agency in making a determination of consistency. *Except minor exempt actions including Building Permit and other ministerial permits not, located within the Coastal Erosion Hazard Area 2. Before answering the questions in Section C, the preparer of this form should review the exempt minor action list, policies and explanations of each policy contained in the Town of Southold Local Waterfront Revitalization Program. A proposed action will be evaluated as to its significant beneficial and adverse effects upon the coastal area (which includes all of Southold Town). 3. If any question in Section C on this form is answered "yes", then the proposed action may affect the achievement of the LWRP policy standards and conditions contained in the consistency review law. Thus, the action should be analyzed in more detail and, if necessary, modified prior to making a determination that it is consistent to the maximum extent practicable with the LWRP policy standards and conditions. If an action cannot be certified as consistent with the LWRP policy standards and conditions, it shall not be undertaken. A copy of the LWRP is available in the following places: online at the Town of Southold's website (southoldtown.northfork.net), the Board of Trustees Office, the Planning Department, all local libraries and the Town Clerk's office. B. DESCRIPTION OF SITE AND PROPOSED ACTION SCTM# 1000-110-7-18.2 The Application has been submitted to (check appropriate response): TownBoard Planning Dept. Building Dept. Board of Trustees ZBA X 1. Category of Town of Southold agency action (check appropriate response): (a) Action undertaken directly by Town agency (e.g. capital construction, planning activity, agency regulation, land transaction) (b) Financial assistance (e.g. grant, loan, subsidy) (c) Permit~ approval~ license~ certification: Nature and extent of action: "In-kind in-place" replacement of 8' x 32' bath house and repair/replacement as required of "as built" wood deck destroyed by arson fire. 552 East Road, Cutchogue SCTM # 1000-110-7-18.2 Location of action: 552 EAST ROAD, CUTCHOGUE Site acreage: 1.017 acres Present land use: single family dwelling Present zoning classification: R40 2. If an application for the proposed action has been filed with the Town of Southold agency, the following informationff.hall be provided: (a) Name of applicant: GEORGE-KOFINAS ~ }ua~J~ trOltlNAS (b) Mailing address: 100 WINSTON DRIVE APT. PHH CLIFFSIDE PARK, NJ 07010 (c) Telephone number: Area Code 718-780-5070 (d) Application number, if any:. Will the action be directly undertaken, require funding, or approval by a state or federal agency? Yes No If yes, which state or federal agency? NYSDEC (approved 1110512008), DEVELOPED COAST POLICY Policy 1. Foster a pattern of development in the Town of Southold that enhances community character, preserves open space, makes efficient use of infrastructure, makes beneficial use of a coastal location, and minimizes adverse effects of development. See L'vVRP Section III - Policies; Page 2 for evaluation criteria. Yes No Not Applicable The proposed activity has no impact on the "pattern of development in the town". Numerous sites, both on the bay and sound, as well as creeks have cabanas an/or boathouses on the beach, landward of the tidal wetlands limits. Policy 2. Protect and preserve historic and archaeological resources of the Town of Southold. See LWRP Section III - Policies Pages 3 through 6 for evaluation criteria Yes No Not Applicable The proposed project is not located near any historic sites or districts Policy 3. Enhance visual quality and protect scenic resources throughout the Town of Southold. See LWRP Section III - Policies Pages 6 through 7 for evaluation criteria Yes No Not Applicable DesiRn and construction is intended to replicate the structure that previously existed. George Kofinas 552 East Road, Cutchogue SCTM # 1000-110~7-18.2 NATURAL COAST POLICIES Policy 4. Minimize loss of life, structures, and natural resources from flooding and erosion. See LWRP Section III - Policies Pages 8 through 16 for evaluation criteria Yes No Not Applicable Historically, this site has proven to be quite stable1 and not prone to tidal flooding. Earlier reve.qetation of the bluff to restore the areas damaged by the arson fire has been successful in protecting the bluff. Construction of the in-kind in-place replacement of the cabana destroyed by the arson fire will be undertaken with the greatest environmental consideration. There will be no plumbin.q installed and electric installed only to the extent necessary for installation of a security and fire alarm system to prevent future vandalism and arson events Policy 5. Protect and improve water quality and supply in the Town of Southold. See LWRP Section III - Policies Pages 16 through 21 for evaluation criteria Yes No Not Applicable The subject site is developed with a single family dwelling. Reconstruction of the cabana will cause no impact on water quality since no plumbing will be installed, therefore there will be no sanitary waste generated. There will be no fertilizer dependent vegetation and no stormwater runoff will be directed into the wetlands Policy 6. Protect and restore the quality and function of the Town of Southold ecosystems including Significant Coastal Fish and Wildlife Habitats and wetlands. See LWRP Section III - Policies; Pages 22 through 32 for evaluation criteria. Yes No Not Applicable The proposed replacement of the cabana will pose no risk to the quality and function of the Town of Southold ecosystems includin,q Significant Coastal Fish and Wildlife Habitats and wetlands Policy 7. Protect and improve air quality in the Town of Southold. See LWRP Section III - Policies Pages 32 through 34 for evaluation criteria. Yes No Not Applicable Since there will be no conditioning of the proposed cabana, there wilt be no emissions generated Policy 8. Minimize environmental degradation in Town of Southold from solid waste and hazardous substances and wastes. See LWRP Section III - Policies; Pages 34 through 38 for evaluation criteria. Yes No Not Applicable It does not appear that Policy 8 is relevant. · ', George Koflnas 552 East Road, Cutchogue SCTM # 1000-110-7-18,2 PUBLIC COAST POLICIES Policy 9. Provide for public access to, and recreational use of, coastal waters, public lands, and public resources of the Town of Southold. See LWRP Section III - Policies; Pages 38 through 46 for evaluation criteria. Yes No Not Applicable Reconstruction of the cabana will have no impact on public access to, and recreational use of, coastal waters, etc WORKING COAST POLICIES Policy 10. Protect Southold's water-dependent uses and promote siting of new water-dependent uses in suitable locations. See LWRP Section III - Policies; Pages 47 through 56 for evaluation criteria. Yes No Not Applicable It does not appear that Policy 10 is relevant. Policy 11. Promote sustainable use of living marine resources in Long Island Sound, the Peconic Estuary and Town waters. See LWRP Section III - Policies; Pages 57 through 62 for evaluation criteria. Yes No Not Applicable It does not appear that Policy 11 is relevant Policy 12. Protect agricultural lands in the Town of Southold. See LWRP Section III - Policies; Pages 62 through 65 for evaluation criteria. Yes No Not Applicable It does not appear that Policy 12 is relevant. Policy 13. Promote appropriate use and development of energy and mineral resources. See LWRP Section III - Policies; Pages 65 through 68 for evaluation criteria. Yes No Not Applicable It does not appear that Policy 13 is relevant. ERICJ. BRESSLER ABIGAIL A. WICKHAM I,YNNE M. GORDON JANET GEASA LAW OFFICES WICKHAM, BRESSLER, GORDON & GEASA, P.C. WILLIAM WICKHAM (06-02) 13015 MAIN ROAD. P.O. BOX 1424 MATTITUCK, LONG ISLAND NEW YORK 11952 631-298-8353 TEI~EFAX NO. 631-298-8565 wwblaw(~aol.com April 11,2011 Town of Southold Zoning Board of Appeals 53095 Main Road, Post Office Box 1179 Southold, New York 11971 275 BROAD HOLLOW ROAD SUITE I I 1 MELVILLE, NEW YORK 11747 631-249-9480 APR 1 8 2011 BOARD OF APPEALS Re: Property owned by George D. Kofinas and Maria Kofinas Premises: 552 East Rd., Cutchogue, N.Y. 11935-SCTM# 1000-110-7-18.2 Ladies and Gentlemen: The Building Inspector has issued a Notice of Disapproval stating that the proposed accessory bath house and "as built" deck does not meet the Town's requirements pursuant to Article XXII Section 280- 116 regarding bulkhead setback. We request: a) a variance to that setback requirement; or b) in the alternative, a determination that the structure may be rebuilt as a pre-existi~-conforming structure under Section 280-122. Accordingly, we enclose the following papers, i~ts, in connection with the Notice of Disapproval dated FebrUary 17, 2011: 1. Copy of Notice of Disapproval updated February 17, 2011; 2. Application to Southold Town Zoning Board of Appeals; 3. Short Environmental Assessment Form; 4. Questionnaire for Filing ZBA Application; 5. Transactional Disclosure Forms for owners and agent; 6. LWRP Consistency Assessment Form; 7. Consent of Owners; 8. Applicant's Project Description with photos; 9. Map of project area prepared by Nathan Taft Corwin III, Land Surveyor; 10. Building Diagram of bath house and "as built" deck; 11. Appeal fee of $500.; 12. Copy of the tax map and Assessors Card; 13. Copy of Pre-Existing Use Certificate of Occupancy dated May 11, 1983; 14. Copy of Deed to the premises; 15. Agricultural Data Statement; 16. Receipt from Building Department (original set only). The small deck to the east will be renovated as shown on the map, and not replaced. The structure will have electric to power a security system. It will not have plumbing or heating. Please schedule this matter at your next available hearing. A,4 }~, dm, ZK'coverltr Ve/fy/t~ly yours, Abigail A. Wickham CONSENT Re: Premises: $52 East Road,.CutchogUe, ~lew York SCTM#: 1000-110-7-18.2 RECEiVED~ APR l 3 ~011 BOARD OF APPEALS GEORGE D. KOFINAS and MARIA KOFINAS, thc owne~ 0fthe above referenced property (the "Premises"), consent to thek attoreeys, Wicld~m, Bressler, Gordon & Geese, P.C.; and their engdnee's, surveyors~ a~ents, or othe~ contractors retained by any of the above and any of their representatives ahd/or agents, to make a variance application to fie Town of $outhol.d Zo~ Bbard of Appeals for bulkhead setback relief, to make applications for Notice of DisaPproval and or Building Permits or Certificates of Occupancy to the Town o~'8ouhhbld Building Department, and to deal wi[h and make applicafiom if required to the Suffolk County Depmtment of Health Services, Suffoll~ County Water Authority, SoUtbold Town Board of Trustees and NYS apartment of Envaronmeatal C0nservatton, ahd to any other au~.ont~cs ~r agencies haviag jurisdiction over said Premises and forlany other matters required to obtain such approvals or obtain information f~om m~h Ag~cies. This authorization shall include all rmttters in connection with those applimfiom anti matters. September I ~ , 2010 Dated: RECEWED BOARD OF APPEALS 9'/ TOWN OF SOUTHOLD OFFICE OF BUILDING INSPECTOR TOWN HALL SOUTHOLD, NEW YORK CERTIFICATE OF OCCUPANCY N~N CONF OR-M~N6- PR-]SMiSE $ No. Zl1664 5/11/83 THIS IS TO CERTIFY that the /-! Land /--/ }gu [lding(s) /x_-/ Use(s) located at 500 East Road Cutchogue Street Hamlet shown on County tax map as District 1000, Section ll0 , Block 07 Lot 0tS , does mol-conform to the present Building Zone Code of the Towau of Southold for the following reasons: a one-£amily dweiling constructed before April, ]957 APR l BOARD OF APPEALS On the basis of information presented to the Building Inspector,s Office, it has been determined that the above m~r~conformthg /_--/Land /_--/Building(s) /~/Us~(s) existed on the e~ffective date the present Building Zone Code of the Town of Southold0 and may be continued pursuant to and subject to the appli- cable provisions of said Code. IT IS FURTHER CERTIFIED that. based upon information presented to the Building Inspector*s Office, the occupancy an~ use for which this Certifi- cate is issued is as follows: a one-family dwelling with bath house. The Certificate is issued to MOEBIUS ASSOCIATES of the aforesaid building. Suffolk County Department of Health Approv3/ N/A UNDERWRITERS CERTIFICATE NO. N/A Minor Subdivision: Planning Board, November 29, ]982, Moebius Assoc., Map No. 301, Lot 3 Building Ins pe ~t~or ~ILDINC DEPB~T[4E?[T TOI'fN OF SOUTHOLD, N. Y. HOUSING CODE INSPECTION REPORT Location 500 East Road %numoer & streeT) Subdivision Moebius Assoc. ~[ap No. No,ne of 0:-mar(s) Moebius Associates Cutchogue (~,]unicipaii~y) 301 .Lot(s) 3 RECETVED APR ] ,~ ?0, BOARD OF APPEALS Occupancy R-1 unoccupied ~%ype) (owner~~enant) ~itted by~Mr_sz,~G~rtr~de Mal,i ~ Accompanies by: same Key ~vailable ~ Suffolk Co, Tax No. 110-7-18 Source of ~equest Richard F. La~k, Esq. Date 4/4/83 DV~ELLI~G: Type of construction terra cotta #stories 3 Foundation poured cement Cellar partial Crawl space rest Total rooms, 1st. F1 4 2nd. F1 4 .3rd. F1 2 Bathroom(s) 3 Toilet room(s) Porch, t~loe roof over Deck, type Patio, type , Breezeway... Garage Utility room Type Heat gas Warm Air X Hotwater ,Fireplace(s) 1 No. ~¢its 3 Airconditioning Domestic hotwater yes ~ype heater gas Other ACCESSORY STRUCTURES: Garage, type const. Swimming pool Other bath house Storage, type const. Guest, type const. VIOLATIONS: Housing Code, Chapter 52 __Location / Descriotion IArt. I Sec. outside needs paint I III 152-31-B inside no rail cellar steps 3rd fiooJ no rail--third floor steps ~II I 52-27-B inside I heater cannot possibly maintain a temp- I erature of not less than 70" Fahrenheit .I V /52-53 Remarks: · Time start 11:30 .end 12:15 GEORGE D. KOF~NAS and MARTA KOP!NAS, his wife, 30-82 36th Street, Astoria, New York 11103 See Schedule A attached hereto RFCI-'IV APR 1 BOARD OF NZCHOLAS NEUBAUER MARIA KOFZNAS, his wife RR~T MAFtHa3'TAN ABSTRACT CORR. kg EAST 1O,h STREET NEW YORK. I'Y 1000:!* (212) 460-5200 ~p N~IO01~ ?fall Mo. 1~S 73Ql ALL that certain plot, place or pa=col of la .F. leet's Ne~, Cutch e, To~n of _~._, mit_ua~m, _lying and be at '!~ x~g 578.88 ~llt 8ou~erl~ lido (l) Nort~ IS degrees lO nLnutma 40 me~.oadm ~reet, 139.0 ~t; si~ or ~ ~d ~e ~o~n~ or pla~. of B~Z~. erly ~ ~us ?v~ ~er O~ Way ~m aa~i~ (1) South 32 dogrnnn 06 m&flutio 50 moconde hat, ~0(,08 £0~; (3) No~. 33 dngFeen 0S m:Lnuton SO esc.oride WoeS'.. 306.08 ~ along ~m louthmrly m~dm o~ Enrac Road, Ho~ 6X hat, XOS.o rest to ~e ord~--~ ~-~ -=, ....... ._ .~ %0 emcees Meet, Xms.o rent co a ~%n~; ' ~C% N~ ?X d~tmo 47 ~nute. 30 s~ EmaC, 30.0 11a497~345 ,/~,~,~-~6-7 ~.-~.?OWN OF $OUTHOLD I~IOPERTY RECORD CARD W . : ~ ~~PEOFBUILDNG .~' "~,~'~ ~' ~,~ ~, Al~- TOTAL COA,WL DATE REMARKS IND. CB. J MISC. c7~.(20Farm )0Acre 1 Tillable 2 ABOVE ,Value 2~ Tillable= 3 Woodland Swampland Brushland House Plot Foundation Basement Ext. Walls Porch Porch / 6"'0' Fire Place Bath Floors Interior Finish He~ / ~" Y '~ ';""' Attic Rooms 1st Floor Patio Breezeway Driveway Rooms 2nd ._F. Io~or 110.-7-18.2 11/07 110.-7-18.2 Pool House 11/07 / ~.00 ~OO~ ~xt~nsion · ~oo~*;~ ~£ CrT 50 o"F 1:7--00 IOO0 Foundation ~ CB Basement Ext Walls Fire Place Dormer Dock Fin, B. Bath Floors Interior Finish Heat Woodstove Dinette Kit. BR. Baths Faro, Rm. ;COLOR TRIM 1 st 2nd ELIZABETH A. NEVILLE, RMC, CMC TOWN CLERK REGISTKAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (631) 765-6145 Telephone (631) 765-1800 southoldtown.northfork.net OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD TO: FROM: DATED: RE: Southold Town Zoning Board of Appeals Elizabeth A. Neville April 18, 2011 Zoning Appeal No. 6473 Transmitted herewith is Zoning Appeals No. 6473 of Abigail A. Wickham for George D. Kof'mas & Maria Kofinas - the Application to the Southold Town Zoning Board of Appeals with Affidavit from Gertrude Ali, Copy of Findings and Determination Appl # 4198 Dated October 18, 1993, Copy of Findings & Determination Reft5693 Dated May 12, 2005, DEC Permit #1-4738-03553/00002 Dated November 5, 2008, Also enclosed is the Applicant's Project Description, Three Pages of Photos, Questionnaire, Agricultural Data Statement, Short Environmental Assessment Form, Transactional Disclosure Form, LWRP Consistency Assessment Form, Cover Letter from Abigail A. Wickham Dated April 11,2011, Authorization Letter from George & Maria Kofinas to Abigail Wickham to Represent Them in this Matter, Copy of Tax Map, Copy of Certificate of Occupancy No. Z11664 Dated May 11, 1983, Copy of Deed Between Nicholas Neubauer to George & Maria Kofinas Dated September 30, 1991, Three Pages of Property Record Cards, Notice of Disapproval from Building Department Dated February 17, 2011, Two Pages of Bath House Site Plan & Elevations Dated October 10, 2008 Prepared by James Deerkoski, PE, Copy of Survey Showing Existing & Proposed Construction Dated May 13, 2010 Prepared by Nathan Taft Corwin III Land Surveyor. ZBA TO TOWN CLERK TRANSMITTAL SHEET (Filing of Application and Check for Processing) DATE: 4/15/11 ZBA # 6473 NAME Koflnas, George & Maria CHECK# 825O AMOUNT $500.00 Souti TC DATE STAMP RECEIVED ~,PR 1 5 20~1 ~oid Town Clerk , $ DOLLARS o,-,, ........ "r Town of Southold P.O Box 1179 Southold, NY 11971 Date: 04/15/11 * * * RECEIPT * * * Receipt'8: 100683 Transaction(s): 1 1 Application Fees Reference Subtotal 6473 $500.00 Cash Total Paid: $50000 Name: Kofinas, George 552 East Rd. Cutchogue, NY 11935 Clerk ID: CAROLH Internal ID: 6473 Jill M. Doherty, President James F. King, Vice-President Dave Bergen Bob Ghosio, Jr. John Bredemeyer Janua~ 20,2010 BOARD OF TOWN TRUSTEES TOWN OFSOUTHOLD Town Hall Annex 54375 Ma/n Road P.O, Box 1179 Southold, New York 11971-0959 Telephone (631) 765-1892 Fax (631) 765-6641 Ms. Catherine Mesiano Catherine Mesiano, Inc. 12 Mill Pond Lane East Moriches, NY 11940 RE: GEORGE KOFINAS 552 EAST END RD., CUTCHOGUE SCTM#110-7-18.2 Dear Ms. Mesiano: The Board of Town Trustees took the following action during its regular meeting held on Wed., January 20, 2010 regarding the above matter. WHEREAS, Catherine Mesiano on behalf of GEORGE KOFINAS applied to the Southold Town Trustees for a permit under the provisions of Chapter 275 of the Southold Town Code, the Wetland Ordinance, application dated December 23, 2009, and, WHEREAS, said application was referred to the Southold Town Conservation Advisory Council and to the Local Waterfront Revitalization Program Coordinator for their findings and recommendations, and, WHEREAS, In accordance with Chapter 268, said application was found to be Exempt from the Local Waterfront Revitalization Program policy standards, and, WHEREAS, a Public Hearing was held by the Town Trustees with respect to said application on January 20, 2010, at which time all interested persons were given an opportunity to be heard, and, WHEREAS, the Board members have personally viewed and are familiar with the premises in question and the surrounding area, and, WHEREAS, the Board has considered all the testimony and documentation submitted concerning this application, and, WHEREAS, the structure, as applied for, does not comply with the standards set forth in Chapter 275 of the Southold Town Code, and, WHEREAS, the Board has determined that the structures, as applied for, will have a detrimental effect upon the health, safety and general welfare of the people of the town, NOW THEREFORE BE IT, RESOLVED, that for the foregoing masons, and based upon the record and that there are no specifics of surveys that have been presented by the applicant demonstrating what the applicant is replacing, and failure to meet the standards contained in Chapter 275 of the Town Code, the Board of Trustees DISAPPROVES WITHOUT PREJUDICE the application of GEORGE KOFINAS for the inkind/inplace replacement of an 11'X 50' wood deck and 8'X 32' bath house, as depicted on the site plan prepared by East End Design Associates, LLC last mvisad January 12, 2010. This is not a determination from any other agency. Very truly yours, Doherty, Preside~/ of Trustees JMD/Ims Chairman Lauren Standish, Secretary Town Hall, 53095 Main Rd. P.O. Box I 179 Southold, NY 11971 Telephone (631 ) 765-1892 Fax (631) 765-6641 Conservation Advisory Council Town of Southold At the meeting of the Southold Town Conservation Advisory Council held Wed., January 13, 2010, the following recommendation was made: Moved by Peter Young, seconcded by Doug Hardy, it was RESOLVED to NOT SUPPORT the Wetland Permit application of GEORGE KOFINAS for the inkind/inplace replacement of an 11 'X 50' wood deck and 8'X 32' bath house. Located: 552 East Rd., Cutchogue. SCTM#110-7-18.2 Inspected by: Peter Young The CAC would Not Support this application under any circumstances. Vote of Council: Ayes: All Motion Carried ERICJ. BRESSLER ABIGAII, A. WICKItAM LYNNE M. GORDON JANEIGEASA LAW OFFICES WICKHAM, BRESSLER. GORDON & GEASA, P.C. 13015 MAIN ROAD, P.O. BOX 1424 MAl III'UCK~ LONG ISLAND NEW YORK 11952 631-298-8353 I'ELEFAX NO. 631-298-8565 wwblax~ ;~aol .corn WILl,lAM WICKHAM (06-02) 275 BROAD HOLLOW ROAD SU[I'E I 11 MELVILLE. NEW YORK 11747 631-249-9480 TELEFAX NO. 631-249-9484 July 20, 2011 Town of Southold Zoning Board of Appeals 53095 Main Road, Post Office Box 1179 Southold, New York 11971 R~C~Iv~D BOARD Op App ALs Re: George D. & Maria Kofinas 552 East Road, Cutchogue, New York SCTM# 1000-110-7-18.2 ZBA#6473 Ladies and Gentlemen: At your request, enclosed is a copy of the photos of the nearby existing bathhouses, the originals of which were previously submitted, keyed to locations shown on Maps I and 2 attached. Also at your request, I enclose additional prints of the photos supplied by Mrs. Ali, whose family built the bathhouse, showing the front of the bathhouse as it existed prior to the fire. You can see that the structure itself appears to be cedar, and roof was essentially corrugated. As described at the hearing, my client prefers to have a pitched roof instead so a) the water does not exclusively drain to the rear/toe of the bluff; b) runoff will be easier to contain into gutters and catch basins, and c) it will be more attractive. However, that is a request and not a requirement of the application. Further, as set forth at the hearing, applicant asks that electric be permitted so a security system can be installed to avoid further vandalism. However, we understand that the Board may prefer to limit any approval to in kind in place. For the Board's reference in interpreting Code section 280-122A. 1 also enclose the following: 1. Copy of Black's Law dictionary definition of"reconstruct" and "reconstruction" Southold Town Zoning Board of Appeals July 20, 2011 Page 2 2. City of Seattle v. Northern Pacific Rwy, 12 Wash.ed 247, 21. P2d 382 (1942), cited in the definition of reconstruct. 3. Miller Hatcheries, Inc. v. Buckeye Incubator Co., 41 F2d 619, 5 U.S.P.Q 489 (8th Cir. 1930), cited in the definition of reconstruction 4. Copy of Town Code Section 280-122. To read Section 280-122B as restricting reconstruction in this case is directly contrary to the words in Section 280-122A, which clearly says "Nothing in this Article shall be deemed to prevent the remodeling, reconstruction.., provided (no increase in non-conformity). The only way to consistently read Section 280-122B is to say that that section applies only where there is an increase in non- conformity. Since we are not increasing non-conformity, Section 280-122A allows us to reconstruct. Thank you for your consideration, and please advise if additional information is required. Very truly yours, A A IF/dm encl. Zba'Kofinas 7trzba ,10.~ SCH.D. 9 SCH~T ., ~o,~ re:cOmmEND^T,ON The act of one person in giving to another a favor- able account of the character, responsibility, or skill of a third. Recommendation refers to an action which is advis* ory in nature rather than one having any binding effect. People v. Gates, 41 C.A.3d 590, 116 Cal. Rptr. 172, 178. Letter o£ recoramendation. A writing whereby one person certifies concerning another that he is of good character, solvent, possessed of commercial credit, skilled in his trade or profession, or otherwise worthy of, trust, aid, or employment. It may be addressed to an individual or to whom it may concern, and is designed to aid the person commended in obtaining credit, employment, etc. See Letter of credit. l;[i~ommendatory. Precatory, advisory, or directory. Recommendatory words in a will are such as do not express the testator's comm~nd in 'a peremptory form, but advise, counsel, or suggest that a certain course be pursued or disposition made. Recompense /rdk~mp~n(t)s/. A reward for serdces; remuneration for goods or other property. Recompense or recovery in value. That part of the *;iudgment in a "common recovery" by which the Otenant is declared entitled to recover lands of equal value with those which were warranted to him and lost by the default of the vouchee. 2 BI.Comm. 358- 359. R~conclllation /r~k0n(t)siliy~yshan/. The renewal of ~amicable relations between two persons who had vbeen at emnity or variance; usually implying forgive- ness of injuries on one or both sides. In law of domestic relations, a voluntary resumption of marital relations in the fullest sense. Keller v. Keller, 122 Cai.App. 712, l0 P.2d 541. In bookkeeping, it is the practice of adjusting the bank statement with the depositor's books. Also, a statement showing the ~onsistency of two or more other financial state- ments. See also Reconegiation statement. , Reconciliation statement. In accounting, a statdment .prepared to bring two or more accounts which show a discrepancy into agreement. Reconduetlon. In the civil law, a renewing of a former lease; relocation. ReconsJgnment. A change in tl~e terms of a consign- ment after the goods are in transit, privilege extend- ed by carriers to shippers under which goods may be forwarded to a point other than their original destina- tion, without removal from the car and at the through rate from initial point to that of final delivery. South- em Pac. Co. v. Brown, Alcan:ar & Brown, Inc., C.A. Tex., 409 F.2d 1331, 1332. ~Reconstruet. To construct again, to rebuild, either in fact or idea, or to remodel. To form again'0r anew as in the imagination or to restore again as an entity the thing which was lost or destroyed; City of Seattle v. Northern Pac Ry, Co, lz wasn.2d 247, 121 P.2d 382, 386. See also Recollection. R~onetructlon. Act of constrdcting again. It presup- poses the nonexistence of the thing to be reconstruct- ed, as an entity; that [he thing before existing has lost its entity. Miller Hatcheries v. tor Co., C.C.A. Mo., 41 F.2d 619. Also the name commonly given to the process reorganizing, by acts of congress and tion, the governments of the states which ordinances of secession, and of re-establishing constitutional relations to the national restor/ng their representation in con~-ess, and lng the necessary changes in their internal merit, after the close of the civil war. Recontinuance. Used to signify that a person has' ~I covered an incorporeal hereditament of which he been wrongfully deprived. Reconvenirn /riykonvanayriy/. Lat. In the canon ~ civil law, to make a cross-demand upon the pinintiff. Reconventinn. In the civil law, an action by ant against a plaintiff in a former action; or litigation. The term is used in practice in the states ana and Texas, derived from the reconventio ~ civil law. Reconvention is not identical w/th but more extensive. Pacific Exp. Co. v. Malin, i~ U.S. 531, 10 S.Ct. 166, 33 L. Ed. 450. Reconventinnal demand. Amy plea by a which constitutes more than mere defense amounts to counterclaim. Alfonso v. Ruiz, 2 So.2d 480, 483, 484. Recohversinn. That imaginary process by which a or constructive conversion is annulled and the p erty restored in contemplation of equity to its ori actual quality. Record, v. To commit to writing, to tion, or the like. To make an official note of; write, transcribe, or enter in a book, file, register, computer tape or disc, or the like, purpose of preserving authentic evidence of. transcribe a document, or enter the history of a: or series of acts, in an official volumej for the of giving notice of the same, of furnishing evidence, and for p~eservation. Shirmmel v. 108 Colo. 592, 121 P.2d 491, 493. Record, n. A written account of some act, court ceeding, transaction, or instrument, drawn up, authority of law, by a proper officer, and design~d;t~ remain as a memorial or permanent ev dence o~f tl~.?, i: matters to which it relates. People ex roi. S mon, s? Dowling, 84 Misc. 201, 146 N.Y.S. 919, 920. orandfim public or private, of what has been ordinarily applied to public records, is a written memorial made by a public officer. gueira v. State, 123 Tex. Cr.R. 449, 59 S.W.2d 83L The act or fact of recordin~ or heine recorded! reduction to writing as evidence, also, the writing:g0 made. A register, a family record, official contempO: ranecus writing; an authentic official copy of docU~ :: men: entered n book Or deposited in keep ng. officer designated by law; an official contemporane- ous memorandum stating the proceedings Of a court or official copy of legal papers used in a case. Shin? mol v. People, 108 Colo. 592, 121 P.2d 491, 493. i21 P.2d 382 12 Wash.2d 247, 121 P.2d 382 (Cite as: 12 Wash.2d 247, 121 P.2d 382) Supretne Court of Washington. CITY OF SEATTLE .NORTHERN PAC. RY. CO. No. 28383. Jan. 16, 1942. Department 1. Action by the City of Seattle against the North- em Pacific Railway Company to recover a sum of money alleged to be due as defendant's proportion- ate share of the cost of reconstructing the ap- proaches to bridges under a contract entered into between plaintiff and defendant. From a judgment, plaintiff appeals. Affirmed. West Headnotes [1| Railroads 320 ,~zz:'99(3) 320 Railroada 320VI Construction, Maintenance, and Equip- ment 320k92 Crossing Highways 320k99 Abolition and Removal of Grade Crossings 320k99(3) k. Agreements Respecting Abolition of Grade Crossings. Most Cited Cases In city's action on contract requiring railroad to pay one-third of expense of "reconstructing" ap- proaches to bridges in city wherein neither side offered any evidence of any technical or peculiar meaning to be given to the word "reconstmcting" the word was required to be given its usual and or~ dinary meaning in determining whether railroad was obligated to pay one-third of the cost of con- structing a bridge wlfich was larger than the one which was being constracted at time of execution of contract. [2[ Contracts 95 ~198(1) 95 Contracts 95II Construction and Operation 95II(C) Subject-Matter 95k197 Buildings and Other Works 95k198 In General 95k198(1) k. In General. Most Cited Cases When a party to a contract agrees to "reconstruct" a bridge, a building or some similar structure at a designated point, obligation of con- tractor is limited to the rebuilding of a bridge or other structure reasonably similar in kind and pro- portions to the original construction, although not necessarily an exact reproduction thereof. [3] Railroads 320 ~99(3) 320 Railroads 320VI Construction, Maintenance, and Equip- ment 320k92 Crossing Highways 320k99 Abolition and Removal of Grade Crossings 320k99(3) k. Agreements Respecting Abolition of Grade Crossings. Most Cited Cases Where at time of execution of contract requir- ing railroad to pay one-third of cost of "reconstructing" approaches to bridges, city was constructing a wooden bridge 39 feet 8 inches wide and thereafter city rebuilt the bridge to a width of 58 feet, mih'oad was obligated only to extent of paying what would have been its agreed share of cost had a new bridge only 39 feet 8 inches wide been constructed, since "reconstruction" of a thing has relation to the thing originally constructed. [4] Railroads 320 ~:=::>99(3) 320 Railroads 320V1 Construction, Maintenance. and Equip- ment 320k92 Crossing Highways © 201 I Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?mt=NewYork&utid= 1 &prft=HTM LE&vr... 7/20/2011 121 P.2d 382 i2 Wash.2d 247, 121 P.2d 382 (Cite as: 12 Wash.2d 247, 121 P.2d 382) Page 2 320k99 Abolition and Removal of Grade Crossings 320k99(3) k. Agreements Respecting Abolition of Grade Crossings. Most Cited Cases Under contract requiring railroad to pay to city one-sixth of cost of reconstructing approaches to bridge over "its right of way", railroad was not re- quired to pay on basis of a 100-foot right of way because at time of execution of contract railroad was billed for the original construction on basis of a 100-foot right of way and railroad paid such charge, on theory that payment constituted a contemporan- eous construction of the contract, where railroad owned a separate right of way 15 1/4 feet wide and joint rights of way with another railroad only 48 I/4 feet wide and payment was an oversight on part of both parties or at least on part of railroad. 15] RaiLroads 320 ~;>99(3) 320 Railroads 320V1 Construction, Maintenance, and Equip~ ment 320k92 Crossing Highways 320k99 Abolition and Removal of Grade Crossings 320k99(3) k. Agreements Respecting Abolition of Grade Crossings. Most Cited Cases Under contract requiring railroad to pay to city one-sixth of cost of reconstructing approaches to bridge over "its right of way" railroad which owned a separate right of way I5 1/4 feet wide and joint rights of way with another railroad totaling 48 1/4 feet in width was properly required to pay on basis of 39 3/8 feet right of way as against contention that railroad was required to pay on basis of the en- tire 100-foot right of way. [61 Raih'oads 320 ~"-~99(3) 320 Railroads 320VI Construct/on, Maintenance, and Equip- inent 320k92 Crossing Highways 320k99 Abolition and Removal of Grade Crossings 320k99(3) k. Agreements Respecting Abolition of Grade Crossings. Most Cited Cases Where contract requir/ng railroad to pay to city a portion of cost of reconstructing bridges was drawn by eminent counsel, it would be presumed that they drew it according to understanding and agreement of the parties, in detenniinng whether railroad was liable for its propo~lion of cost of re- constructing approaches at %outh end" of bridge which was not mentioned in contract. [7] Evidence 157 ~397(2) 157 Evidence 157XI Parol or Extrinsic Evidence Affecting Writings 157XI(A) Contradicting, Varying, or Adding to Terms of Written Instrument 157k397 Contracts in General 157k397(2) k. Completeness of Writ- ing and Presumption in Relation Thereto; Integra- tion. Most Cited Cases Pleading 302 ~36(2) 302 Pleading 3021 Form and Allegations in General 302k36 Conclusiveness of Allegations or Ad- missions on Party Pleading 302k36(2) k. Allegations or Admissions in Declaration, Complaint, or Petition. Most Cited Cases Where a party in his pleadings relies solely upon an alleged whtten contract between himself and the other party, be is bound by bis pleading and cannot object to treatment of writing as the whole contract of the patlies, and hence be cannot intro- duce parol evidence to vary such contract. 181 Contracts 95 95 Contracts 95II Construction and Operation 95II(A) General Rules of Construction 95k 147 Intention of Parties 95k147(l) k. In General. Most Cited © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?mt=NewYork&utid= 1 &prft=HTM LE&vr... 7/20/2011 12l P.2d 382 12 Wash.2d 247, 121 P.2d 382 (Cite as: 12 Wash.2d 247, 121 P.2d 382) Page 3 Cases Courts in construing questioned contracts have duty to search out the intent of the parties, but such duty arises out of an ambiguity or omission that de- mands the reception of testimony to illustrate their intent or to harmonize apparent conflicts. |91 Railroads 320 ~:=>99(3) 320 Railroads 320VI Construction, Maintenance, and Equip- ment 320k92 Crossing Highways 320k99 Abolition and Removal of Grade Crossings 320k99(3) k. Agreements Respecting Abolition of Grade Crossings. Most Cited Cases Where contract requiring railroad to pay to city portion of cost of reconstructing bridges described four specific points at which original construction then in progress intersected or spanned railroad's tracks, and contract specifically provided that at one point bridge crossed tracks on south and north banks of canal while with reference to another point the bridge was described as crossing track only on the north bank of the canal, railroad was not liable for any part of cost of reconstructing approaches to bridge over track at the south end of such bridge. **383 *248 Appeal from Superior Court, King County; Donald A. McDonald, Judge. A. C. Van Soelen and Jolm E. Sanders, both of Seattle, for ap- pellant. Robert S. Macfarlane, Dean H. Eastman, and Earl F. Requa, all of Seattle, for respondent. STEINERT, Justice. Plaintiff, the City of Seattle, brought suit upon a written agreement made with defendant, Northern Pacific Railway Company, and sought thereby to recover the sum of $6,117.47 alleged to be due and owing from the railway company as /ts proportion- ate share of the cost of reconstructing the apt proacbes to two bridges located within the city. De- fendant admitted that $3,290.27 was due and owing from it and tendered the conceded amount by pay- ing it into court. Plaintiff declined to accept the tender as full payment and proceeded with its ac- tion. Upon a trial without a *249 jury, the court found that the total amount owing by defendant was considerably less than the amount claimed by plaintiff, though somewhat greater than that tendered by defendant. Judgment was entered in fa- vor of the plaintiff in the sum of $3,552.69, the amount found by the court to be due, and from such judgment plaintiff has appealed. In 1916 and 1917, the City of Seattle, herein- after referred to as the appellant, was faced with the problem of building a number of bridges over the ship canal connecting**384 Lake Union and Lake Washington with the tidewaters of Puget Sound. The railroad tracks of the Northero Pacific Railway Company, hereinafter designated as the respondent, ran, in certain localities, along the banks of the canal and the shores of the lakes. A dispute arose between appellant and respondent as to whether the spaning of respondent's tracks in connection with these bridges was fbr the purpose of separating the grade of the streets from the grade of the tracks, or was necessitated merely by reason of the elevation of the streets intended to be connected by the bridges, regardless of the existence of the railroad tracks. The question whether or not respondent would be liable, in wbole or in part, for the cost of the bridge work here involved depended entirely upon the determination of that controversy. The dispute resulted in a written agreement executed by and between the parties on July 23, 1917, pursuant to a city ordinance passed by the city council on March 26, 1917, and approved by the mayor on March 28. It is upon this agreement that appellant's action is founded, The pertinent portions of the agreement read as fullows: 'Whereas, The City of Seattle is now engaged in the construction of a bridge across the Salmon Bay Lake Washington Canal Waterway at each of the following named points: © 2011 Tho~nson Reuters. No Claim to Orig. US Gov. Works. http://web2.west~aw.c~m/print/printstream.aspx?mt=NewY~rk&utid=~&prft=HTMLE&w... 7/20/2011 121 P.2d 382 12 Wash.2d 247, 121 P.2d 382 (Cite as: 12 Wash.2d 247, 121 P.2d 382) -'~ 9 ~'~0i'~ Page4 *250 '(a) The extension of Eastlake [Avenuel to its intersection with Tenth Avenue Northeast; '(b) Fremont Avenue; '(c) Fifteenth Avenue Northu,est, and 'Whereas, the bridge at point (a) crosses the railroad track of the Northern Pacific Railway Company between Ninth and Tenth Avenues North- east, and the bridge at point (b) crosses, on the south bank of the canal, the Lake Union Belt Line of the Northern Pacific Railway Company, and, on the north bank of the canal, the main line of the Northern Pacific Railway Company, and the bridge at point (c) crosses certain tracks of the Northern Pacific Railway Company, and certain tracks owned jointly by the Northern Pacific [Railway Company] and Great Northern Railway Company on the north bank of the canal, and 'Whereas, there is a dispute between the City of Seattle, and the Northern Pacific Railway Com- pany as to whether the spanning of the tracks of the railway company hereinbefore described is for the purpose of separating the grade of the streets from the grade of the railroad tracks, or is necessitated merely by the street elevations regardless of the ex- istence of the said railway tracks, 'Now, therefore, for and in consideration of the premises, and to effect a compromise and settle- ment of said dispute, it is hereby agreed by and between The City of Seattle, a municipal corpora- tion of the first class of the State of Washington, hereinafter called 'the City', and the Northern Pa- cific Railway Company, a corporation organized and existing under the laws of the State of Wiscon- sin, and doing business in the State of Washington, hereinafter called 'the railway company', as foI- lows: '1. T_hat the railway company shall bear and 12ay one third of the cost and expense-~'~onstruct-- ~,g, reconst~tctin.~ and maintaininf those-vortio~F of the ctbove described bridges o_yer its~-~-~wa~ at said points (a) and (b), and one-sixth of such cost and expense at point (c).' (Italics ours.) It is to be understood that all the issues raised by this case are concerned with the approaches to the bridges, '251 rather than with tile actuaI bridges themselves, since respondent's tracks pass beneath the approaches rather than under the parts of the structures more precisely termed bridges. The bridge at Fremont avenue, point (b), and the cost of its construction or reconstruction are not involved in this action. However, lbr reasons which will appear later, it may be noted that the contract specifically provides that at point (b) (Fremont) the bridge crosses respondent's tracks on both the south bank and the north bank of the canal, while with reference to point (c) (Fifteenth avenue northwest) the bridge is described as crossing respondent's tracks only on the north bank of the canal, there be- ing no mention of the south bank whatsoever. The complaint in this proceeding comprises three causes of action. The first pertains to the bridge at pont (a), which is commonly known as the University Bridge. During 1916 and 1917, the ap- pellant city constructed, or was engaged in con- strncting, at that point a wooden bridge 39 feet, 8 inches wide, with two 6-foot sidewalks. No ques- tion is here involved with respect to the cost of that original constrnction or with respect to respondent's **385 payment of its proportionate share of the ex- pense thereof. In 1931 and 1932, pursuant to appropriate city ordinances, appellant rebuilt tile University Bridge, or, more accurately speaking, constructed with per- manent materials a new bridge, together with the necessary approaches, in place of the original strnc- ture. The new bridge and the approaches thereto, however, were cnnstrncted to a width of 58 feet, with two 6-foot sidewalks. Thus. the new bridge was 18 feet, 4 inches wider than tile original one. The total cost of the constructnig so much of the approaches as crossed respondent's right of way © 201 l Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.west~aw.c~m/print/printstream.aspx?mt=NewY~rk&utid=~&prft=HTMLE&vr... 7/20/2011 121 P.2d 382 12 Wash.2d 247, 121 P.2d 382 (Cite as: 12 Wash.2d 247, 121 P.2d 382) Page 5 at that *252 point was $14,078.87. In its first cause of action appellant demaned that respondent be re- quired to pay one-third of that amount, or $4,692.96, claiming that the contract so obligated it. Respondent admitted its liability to the extent only of $3,145.63, on the theory that it was bound merely to pay its proportionate part of the cost of reconstructing a bridge having a width of 39 feet, 8 inches, rather than a bridge 58 feet wide. The trial court adopted respondent's theory, but at the same time held that it should also be required to pay an additional $215.63, representing respondent's pro- portionate share of the cost of certain concrete work on the new bridge and of a temporary trestle made necessary by the reconstruction. Judgment was therefore entered upon the first cause of action in the sum of $3,361.26. Respondent assigns no error upon the additional allowance over and above the amount previously conceded by it. The sole question involved in this cause of ac- tion is whether respondent should have been re- quired to pay on the basis of a structure 58 feet in width, or on the basis of one 39 feet, 8 inches wide. In other words, the question to be decided by the court was whether or not the building of the new and wider bridge, together with its approaches, came within the meaning of the term 'reconstructing,' as used in the contract between the parties. Counsel for appellant in his opening state- ment expressed the issue thus: 'So~e question as to the first cause of action is whether or not th.e ~.~qihact cr~ered reconstruction bt' the 'Idridge at its 6nginal width o~at any width it might have been ~constructect to. ~itaiics ours.) -- Respondent's counsel acquiesced in that state- ment of the issue. [1] Neither side offered any evidence of any technical or peculiar meaning to be given to the word 'reconstructing,' *253 as used in the written agreement. The word must therefore be given its usual and ordinary meaning. In Funk & Wagnall's New Standard Dictionar_.~ (1929), the word ~reconstruct' is defined as mean- lng 'To"construct again; to rebuild, etther m fact or ide'a'7'~W'ebsters N~ International Dictionary (2d 19~'~defi~ 'To construct again; to re- btriIcl; to remodel; to form a~,ain ar an~.w as in the imagination; as, to reconsO'ttct a church, a regi- me.n't, or~ochY- And in 53 C.J. 595, the same meanings are giv- en, suppl~further statement that the word means 'to restore again as an entity the thing which was losT'6-ff-destroyed.' In Fuchs v. City of Cedar Rapids, 158 lowa 392, 139 N.W. 903, 904, 44 L.R.A., N.S., 590, ap- pears the following statement: 'Reconstruction pre- supposes the nonexistence of thio be recon- sS"~ct~d, as an entity; that the thing, before existing, ~t its entity; and ~reconstruction' is defined as ~11~: 'To construct again; to rebuild; to restore again as an entity the thing which was lost or des- troyed'-and it is apparent that the Legislature meant by the word 'reconstruct' to rebuild (that is, to con- struct again the thing which, as an entity, has been lost or destroyed); * * * ' In Bell v. Maish, 137 Ind. 226, 36 N.E. 358, 359, 1118, it is said: 'Reconstruction is but a form of construction,-a construction again of what had first been constructed. In addition, it is very clear that reconstruction is a 'matter properly connected' with construction.' For other definitions, see 36 Words and Phrases, Penn. Ed. 1940, p. 525 et seq. [2] Frum these definitions~ it is clear that 'reconstruction' of a thing has relation to the thing originally constructed. It logically follows, we think, that when a *254 party to a contract agrees to reconstruct a bridge~ a building, or some similar structure at a designated point, the obligation of the contractor is limited to the rebuildil~g of a bridge or other structure reasonably similar in kind and pro- portions to the original construction, although not necessarily an exact reproduction thereof. That in- © 201 l Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?mt=NewYork&utid= 1 &prft=HTM LE&w... 7/20/2011 121 P.2d 382 12 Wash.2d 247, 121 P.2d 382 (Cite ns: 12 Wash.2d 247, 121 P.2d 382) Page 6 terpretation of the contractor's obligation**386 is peculiarly warranted in the case at bar, for, as ap- pears by the very wording of the contract itself, ap- pellant was, at the time of its execution, engaged in constructing a particular character of bridge at the point now under consideration. It is therefore only reasonable to assume that the parties were contract~ lng with reference to the construction, reconstruc- tion, and maintenance of a bridge reasonably simil- ar in character to the original structure and of ap- proximately the same proportions. Making due al- lowance for the necessities requiring a new strnc- ture, it cannot rightly be said that, at the time of en~ tering into the contract, the parties contemplated the 'reconstruction' of a bridge almost half again as wide as the one originally built. An apt illustration of the result of the applica- tion of appellant's contention to an analogous situ- ation is suggested in respondent's brief. The Nar- rows bridge, in this state, was recently destroyed by a violent storm. The bridge was heavily insured. If, as is customary in contracts of insurance, upon such structures, the policies covering the bridge had rev served to the insurance companies the right to 'reconstruct' the bridge, instead of paying the amounts provided in the insurance contracts, would it be reasonable to think, or logical to hold, that if the insurers should elect to exercise their option to rebuild, they would be required to 'reconstruct' a bridge half again as wide as that originally built, merely because the state had decided to rebuild *255 a structure of greater proportions? We do not think that such a contention would be upheld. [3] So, here, we are of the opinion that the trial court correctly held, upon this phase of the case, that respondent was obligated only to the extent of paying what would have been its agreed share of the cost had a new bridge only 39 feet, 8 inches wide been constructed. The added expense incurred in building the new bridge to a width greater than that of the hold one must be borne by appellant. Appellant's second cause of action relates to the reconstruction of a hundredfoot Howe Truss span at the north end of the bridge at Fifteenth av- enue northwest, commonly known as the Ballard Bridge, which crosses respondent's railroad tracks as well as certain tracks owned by it jointly with the Great Northern Railway Company, in the locality designated in the contract as point (c). As has already been pointed out, the contract requires the respondent to pay one sixth of the cost and expense of constructing, reconstructing, and maintaining that portion of the bridge over its right of way at point (c). Ihe issue in this cause of action concems the meaning of the phrase 'its [respondent's] right of way,' as used in the contract between the parties and as applied to the peculiar facts existing at the time of its execution. The proof shows that respondent owns, at that point, a separate right of way 15 1/4 feet in width, measured along, the center line of the bridge, and joint rights of way with the Great Northern Railway Company, totalling 48 1/4 feet in width measured in the same manner, or a totaI combined right of way at this point, including both its joint and its several franchise rights, measuring 63 I/2 feet in width. Appellant asked judgment for $486.18 under this *256 cause of action, on the basis ofa lO0-foot right of way. Respondent tendered the sum of $144.64, on the basis of rights of way having a total width of 29 3/4 feet, but later, in open court, in- creased the tender to the sum of $191.43, on the basis of a total width of 39 3/8 feet. The trial court allowed appellant the amount finally tendered by respondent. The court arrived at that result by con- strucing mspondent's undivided half interest in the joint rights of way (totaling 48 I/4 feet in width) as equivalent to a separate right of way of half that width (or 24 1/8 feet) and added thereto its admit- tedly separate right of way 15 I/4 feet wide, thus making a combined right of way, lbr the purpose of assessing costs under the contract~ of 39 3/8 feet. One sixth of the cost of reconstructing the span over that computed total right of way was held properly chargeable to respondent. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?mt=NewYork&utid= i &prft=HTMLE&vr... 7/20/2011 121 P.2d 382 12 Wash.2d 247, 121 P.2d 382 (Cite as: 12 Wash.2d 247, 121 P.2d 382) Page 7 [4] Appellant's first contention upon this issue ts that respondent should be held to pay on a lO0-foot basis, for the reason that in November, 1917, the city billed the respondent, for the original construction, on a basis of a 100-foot right of way, which charge was thereupon paid by respondent. It is argued that such payment constituted a contem- poraneous construction of the contract by the parties. We cannot agree with that contention. It is reasonably clear that the amount of that payment was an oversight or mistake **387 on the part of both parties or at least on the par[ of respondent. At any rote, the contract is specific and unambiguous to the effect that respondent was obligated to pay only on the basis of the actual width of its possess- ory right of way, whatever that might be determ- ined to be, and not on the basis *257 of the entire length of the span regardless of the width of the right of way over which it was built. [5] AppeIlant's second contention on this issue is that, in any event, respondent is obligated to pay on the basis of the entire total width of the respect- ive rights of way, joint as well as several. We can- not agree with that contention. The contract does not say that respondent shall pay the proportionate cost of that part of the span which extends over the whole series of railroad tracks, including both the separate right of way owned by respondent and the joint righm of way held by both railroads in com- mon, but requires only that payment be made for one sixth of the cost of that portion of the span which crosses its (respondent's) right of way. Re- spondent does not seek to escape payment of its just proportion of the cost of so much of the span as ex- tends over the joint rights of way, but is willing to pay according to its interest therein, as well as its full share of the cost of so much of the span as crosses its separate right of way. In our opinion, the trial court's solution was a fair and just one. We see no reason why respondent should be held to pay a charge which should have been assessed against an- other company, and we do not think that the word- ing of the contract calls for any different interpreta- tion. We therefore agree with the conclusion at which the trial court arrived upon this phase of the case. The third cause of action relates to the recon- struction of an 84-foot Skew Truss span over re- spondent's tracks at the south end of the Ballard Bridge. For this item, appellant sought to recover the sum of $938.33~ being one sixth of the cost of rebuilding so much of the span as extended over re- spondent's railroad tracks in that locality. The trial court disallowed*258 the claim in its entirety, on the ground that it is was not covered by the contract between the parties. Reference to the contract~ quoted in part above, reveals that, so far as respondent's obligation is concerned, no mention whatsoever was made therein of an obligation to share in the cost of the construction, reconstruction, or maintenance of any par[ of the southert~ end of the bridge. The contract described four specific points at which the original work of construction then in progress intersected or spanned the respondent's tracks: At the University Bridge (extension of Eastlake avenue, designated in the contract as point (a) which is, in fact and as shown by the record, on the north bank of the canal); at the Fremont Bridge (Fremont avenue des- ignated as point (b) in the contract) on both the north and sottth banks of the canal: and at the Bal- lard Bridge (Fifteenth avenue northwest, designated as point (c) in the contract) on the north bank of the canal. [6] The reconstruction work involved in the third cause of actiom although a part of the Ballard Bridge, was in fact done at Fifteenth avenue west, and not at Fifteenth avenue northwest which is the only street named in connection with the descrip- tion of point (c) in the contract. The two streets be- come a continuous one only by reason of the bridge connection. Aside t'rom that distinction, however, it is to be noted, as was pointed out near the begin- ning of this opinion, that with reference to the Fre- mont Bridge, point (b)~ the contract provided spe- © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.west~aw.c~m/print/printstream.aspx?mt=NewY~rk&utid=~&prft=~~TMLE&vr... 7/20/2011 121 P.2d 382 12 Wash.2d 247~ 121 P.2d 382 (Cite as: 12 Wash.2d 247, 121 P.2d 382) Page 8 cifically that the bridge crossed the railroad tracks of respondent on both the north and south banks of the canal, whereas, with reference to point (c) the contract mentioned only the north bank of the canal, and was completely silent as to any crossing which may have existed on the south bank. The contract was drawn by eminent counsel, and it is to be presumed that they drew it according *259 to the understanding and agreement of the parties. It also appears from the evidence that when appellant built the approach to the south end of the original bridge in 1916 and 1917, it did not bill respondent for any contribution claimed to be due fi.om the latter for that work. Appellant claims that this was a mere oversight or neglect, and we will so regard it, just as we have done with respect to the overpayment by respondent on the item involving the work on the north end of the same bridge, as hereinbefore indicated. This concession might have some materi- al bearing upon the decision of the present issue if tbe action were of a kind that permitted its consid- eration. [7] This suit, however, is a straight action at law upon the contract. There **388 is no sugges- tion in appellant's pleadings that there was any fraud or mistake in connection with the execution of the contract, and the instrument is plain and un- ambiguous upon its face. The issues are therefore limited to the contract as written. 'Where a party in his pleadings relies solely upon an alleged written contract between himself and the other party, he is bound by his pleading and cannot object to treatment of the writing as the whole contract of the parties, and hence he cannot introduce parol evidence to vary such contract.' 22 C.J. 1290, Evidence, § 1718. This rule has been followed by this court in several cases. Staver& Walker v. Rogers, 3 Wash. 603, 28 P. 906: Tacoma Mill Co. v. Northern Pac. R. Co., 89 Wash. 187, 154P. 173. [8] Appellant urges, however, that the contract should be so construed as to find therein the intent to include the work at the south end of the bridge, for otherwise, it is alleged, the contract is mani- festly incomplete and fails to accomplish its pur- pose. It is, of *260 course, the duty of courts, when construing questioned contracts, to search out the intent of the parties, but that duty arises out of an ambiguity or omission that demands the reception of testimony to illustrate their intent or to harmon- ize apparent conflicts. The statement just made is taken almost verbatim from Kanaskat kumber, etc., Co. v. Cascade Timber Co., 80 Wash. 561, 142 P. 15. Other cases expressing the same rule are Allen v. Farmers' & Merchants' Bank, 76 Wash. 5L 135 P. 621; Olson Land Co. v. Seattle, 76 Wash. 142, 136 P. 118; Armstrong v. Wheeler, 86 Wash. 251, 150 P. 5; Van doren Roofing & Cornice Co. v. Guardian Casualty & Guaranty Co., 99 Wash. 68, 168 P. 1124; Betcher v. Kunz, 112 Wash. 563, 192 P. 955; Parke v. Case, 113 Wash. 263, 193 P. 688; Robinson v. Shell Oil Co., 172 Wash. 611, 21 P.2d 246. [9] To construe the contract as appellant sug- gests would require our reading into it something that not only is not them, but which also appears to have been deliberately lift out. The written agree- ment made specific provision for contribution by respondent for work to be done m the four localities enumerated above~ but not for work to be done on tbe south end of the Ballard Bridge. As worded, the contract left no room for construction. In view of the terms of the contract, the trial court rightly dis- missed appellant's third cause of action. The judgment is affirmed. ROBINSON, C..T., and MAIN, MILLARD, and DRIVER, JJ., concur. Wash. 1942 City of Seattle v. Northern Pac. Ry. Co. 12 Wasb.2d 247, 121 P.2d 382 END OF DOCUMENT © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?mt=NewYork&utid= I &prfi=HTMLE&vr... 7/20/2011 41 F.2d 619, 5 U.S.P.Q. 489 (Cite as: 41 F.2d 619) Page I Circuit Court of Appeals, Eighth Circuit. MILLER HATCHERIES, Inc., et al. BUCKEYE INCUBATOR CO. et al. No. 8701. May 19, 1930. Appeal from the District Court of the United States for the Eastern District of Missouri; Charles B. Davis, Judge. Patent suit by Buckeye Incubator Company and others against the Miller Hatcheries, Incorporated, and others, wherein defendants filed a counter- claim. From that part of the decree granting an in- junction and ordering an accounting for infringe- ment, defendants appeal. Affirmed. West Headnotes 131 Patents 291 ~255 291 Patents 291XII Infringement 291XII(A) What Constitutes Infringement 291k255 k. Making, Repair Of, or Substi- tute for Patented Article. Most Cited Cases Purchaser of patented device has right to repair device by replacing unpatented worn-out parts. 141 Patents 291 291 Patents 291XII Infringement 291 XII(A) What Constitutes Infringement 291k255 k. Making, Repair Of, or Substi- tute for Patented Article. Most Cited Cases Purchaser of patented device may within cer- tain limits change device so as to make it adapted to particular use. 15] Patents 291 ~--o255 291 Patents 291XII Infringement 291XII(A) What Constitutes Infringement 291k255 k. Making, Repair Of, or Substi- tute for Patented Article. Most Cited Cases Purchaser of patented device has no right to re- make device. [71 Patents 291 ~z::v255 291 Patents 291XII Infringement 291XII(A) What Constitutes Infringement 291k255 k. Making, Repair Of, or Substi- tute for Patented Article. Most Cited Cases Fact that contract between assignor and assign- ee of patent precluded both fi'om manufacturing in- cubators of stated capacity did not give purchasers right to manufacture incubators of intermediate ca- pacities. [8] Federal Courts 170B ~::~>600 170B Federal Corals 170BVIII Courts of Appeals 170BVIII(C) Decisions Reviewable 170BVII[(C)2 Finality of Detemrination 170Bk598 Determination of Contro- versy as Affecting Finality 170Bk600 k. Particular Actions. Most Cited Cases (Formerly 30k80(4)) Decree holding counterclaim good and refer- ring matter of accounting to special master was not appealable. Patents 291~z>255 291 Patents 291XII Infi'ingement 291XlI(A) What Constitutes Infringement 29lk255 k. Making, Repair Of. or Substi- tute for Patented Article. Most Cited Cases © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.west~aw.c~m/print/printstream.aspx?mt~NewY~rk&utid=~&prft=HTMLE&vr... 7/20/201l 41 F.2d 619, 5 U.S.P.Q. 489 (Cite as: 41 F.2d 619) Page 2 Correspondence between seller and purchaser of patented incubator held not to authorize pur- chaser to make changes as respected infringement. *620 Charles E. Rendlen, of Hannibal, Mo. (Adam E. Fisher, of St. Louis, Mo., and Harrison White and Branham Rendlen, both of Hannibal, Mo., and Earl E. Fogle, of Lancaster, Mo., on the brief), for appellants. Albert L. Ely, of Akron, Ohio (Paul A. Staley, of Springfield, Ohio, and Thomas W. White, of St. Louis, Mo., on the brief), for appellees. Before BOOTH and GARDNER, Circuit Judges, and SANBORN, District Judge. BOOTH, Circuit Judge. Thi~._ ss is a patent suit broueht by appellees in- volving two patents: No. 1,262,860 and No. 1,263,138, both issued April 16, 1919, to appellee Samuel B. Smith, assignor of appellee Buckeye In- cubator Company, for an incubator; the latter patent covering certain improvements in the trays nsed in an incubator of the type covered by the former pat- ent. All claims of both patents are involved, except claim 4 of patent No. 1,263,138. The defenses set up were invalidity of the pat- ents, noninfringement, and authority given by the plaintiffs to defendant to make in the incubators the changes later claimed to be infringements. The an- swer also contained a counterclaim based upon an alleged breach of an agreement by plaintiff Buck- eye Company with defendants, that it would pay defendants for the privilege of using certain im- provements on the incubators alleged to have been originated by defendants. After a trial the court entered an interlocutory decree, holding the patents valid and infringed; granting an injunction against defendants, and re- ferring to the matter of an accounting to a special master; also holding defendants' counterclaim good, and that they were entitled to recover as damages reasonable compensation for the use of the im- provements involved, and referring this matter of accounting to the special master. Defendants have appealed from that part of the decree granting the injunction against them and or- dering the accounting for the infringement by them. The main questions arising on the appeal are whether the patents are valid; whether the acts of defendants, if without authority~ constituted in- fringement; whether defendants had authority to do the acts. Validity of the Patents. Both patents have been the subject of extensive litigation. See Buckeye Incubator Co. v. Wolf (D.C.) 291 F. 253. affirmed (C.C.A.) 296 F. 680; Buckeye Incubator Co. v. Blum (DC.) 17 F.(2d) 456, affirmed (C.C.A.) 27 F.(2d) 333; Buckeye In- cubator Co. v. Petersime (C.C.A.) 19 F.(2d) 721; Boling v. Buckeye Incubator Co. v. Cooley (C.C.A.) 17 F.(2d) 453; Buckeye Incubator Co. v. Hillpot (D.C.) 22 F.(2d) 855, affirmed (C.C.A.) 24 F.(2d) 341. Both patents have been repeatedly held valid- No. 1,262,860 in the Sixth Circuit in the Wolf Cases and in the Blum Cases, in the Third Circuit in the Cooley Case; No. 1,263,138 in the Sixth Circuit in the Wolf Cases, and in the Third Circuit in the Cooley Case. In the other cases they have been as- sumed to be valid, or the question of validity was not found necessary to be decided. We have in comity accorded these judgments of the Third and Sixth Circuits due consideration. We have, however, independently examined the question of validity in the present case, and we £md nothing in the record which causes us to differ from the conclusions reached on that question in the Wolf and Cooley Cases. It would serve no useful purpose for us to rediscuss the question to exhaust- ively treated in those cases. We therefore pretennit discussion and simply hold the patents valid. Did Defendants' Act Constitute Infringement? © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.west~aw.c~m/print/printstream.aspx?lnt=-NewY~rk&utid=~&prft=HTMLE&vr... 7/20/2011 41 F.2d 619, 5 U.S.P.Q. 489 (Cite as: 41 F.2d 619) Page 3 There is no dispute as to what acts were done. ~Defendants took the incubators which they had bought from plaintiff Buckeye Company and re- ~a_rranged the interior, inserting twelve trays ~e space where nine had been in the incubators as pur- chased. This involved*621 numerous alterations, among them recessing at the uhder sides ~l~e hori- zontal webs or plates of the end slats of the tilting sections; detaching the side member bars fi-om the tray supporting rails; drilling holes in the side mem- ber bars for use in connection with the additional troy rails; making or purchasing additional tray rails; making or purchasing additional trays; attach- ing the side member bars to the old and new tray rails; enlarging the ventilators. Defendants not only xl~e the incubators so reconstructed, but advertised the_~m to the trade and sole one, at least, before the present suit was brought. The incubators so recon- structed or changed embodied every one of the fea- lures of the Smith patents. The purpose of the change, of course, was to increase the capacity of each incubator and thereby reduce the number ne- cessary to be bought. This purpose was frankly ad- mitted by defendants. [3][4] The purchaser of a patented device has the right to repair the device by replacing unpaten- ted worn-out parts; he may also, within certain lim- its, change the device so as to make it adapted to his particular use. Thomson-Houston Electric Co. v. Kelsey, etc., Co. (C.C.A.) 75 F. 1005, 1010; Aiken v. Manchester, etc., Works, Fed. Cas. No. 113; Wilson v. Simpson, 9 How. 109, 125, 13 L.Ed. 66. [5] On the other hand, he may not remake the patented device. In Leeds & Catlin Co. v. Victor, etc., Co. (C.C.A.) 154 F. 58, page 61, the court said: 'The true inquiry is whether the owner of a patented combination, the elements of which are durable, unbroken, and in good repair, may buy from the patentee one specimen of a single element, fi.om an outsider an indefinite number of identical specimens of the same element, and keep and use them all, under cover of the word 'substitution'; it further appearing that the element so procured and used is useful and commercially known only in re- spect of the said combination. We think this cannot lawfully be done.' In affirming the Leeds & Catlin Co. Case, the Supreme Court said ( 213 U.S. 325, at page 336, 29 S.Ct. 503, 507, 53 L.Ed. 816): 'The license granted to a pumhaser of a patented combination is to pre- serve its fitness for use so far as it may be affected by wear or breakage. Beyond this there is no li- cense.' The syllabus of the case reads ( page 326 of 213 U.S., 29 S.Ct. 503): 'The right of substitution or resupply of elements of a combination extends only to repair and replacement made necessary by deterioration so as to preserve its fitness; license goes no further and does not extend to furnishing such elements to increase effectiveness or variety of the results of the combination.' Walker on Patents (6th Ed.) Sec. 350, states: 'A purchaser may repair a patented machine which he has purchased I~y replacing broken or worn-out unpatented parts, so long as the identity of the ma- chine itself is not an infringement. * * * And he may improve such a machine for his own peculiar use, by substituting for an unpatented part thereof, a corresponding part originally purchased, or not pur- chased, from the patentee. But no -naulhorized per- ~ can. lawfully eng~a e in the business .... of recon- s. tn{ct~ng patented machines for their owners, by omissions and substitutions of parts, where those machines do not require any repair~ but are thus changed with a view of their improvement. * * * Nor can even an owner of a patented machine law- fully replace any part or combination thereof, which is patented to another person alone.~ Hopkins on Patents, Sec. 267. states: ' * * * We reach the general mle that the test of the hinit to which the owner of a patented machine may go, by way of replacement, repair, or improvement, is that of the identity of the machine as altered with the machine as it left the hands of the original vendor.' © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?mt=NewYork&utid= l &prft=HTMLE&vr... 7/20/2011 41 F.2d 619, 5 U.S.P.Q. 489 (Cite as: 41 F.2d 619) Page 4 48 Corpus Juris, p. 295, Sec. 495, states the rule thus: 'The purchaser of a patented machine has a right to repair it or replace lost, broken, injured, or worn-out parts, not separately patented, so long as the identity of the machine is not destroyed. He may not, however, under the guise or pretext of re- atp~.Eh_ana w~mout the consent of the owner of the lhatent, reconstruct or rebuild 0 worn-m, machine, replace parts or elements which are not worn out, or replace or reconstruct a part of element which is patented separately. Where none of th~' parts or ele- ments are quickly perishable or consumable, no one can be replaced without infringing the patent.' In Cortelyou v. Johnson & Co. (C.C.A.) 145 F. 933, page 935, speaking of the sale of articles as constituting contributory infringement, the court said: 'We incline to the opinion that the line should be drawn to include those articles which are either parts of a patented combination or device or which are produced for the sole purpose of being *622 so used and to exclude the staple articles of com- merce.' In Pyle National Co. v. Oliver, etc., Co., 281 F. 632, page 633, this court said: 'It goes without say- ing no one, under the guise or claim of merely fur- nishing needed repair parts to a patented article or machine, may in fact make or remake the patented device or machine in competition with or in viola- tion of the rights of the owner of the patents under which the same was originally made.' In Goodyear, etc., Co. v. Jackson (C.C.A.) 112 F. 146, page 150, 55 L.R.A. 692, the court said: 'A pumhaser, then, may repair, but not recon- struct or reproduce, the patented device or machine. Repai~r_is ~restoration to a sound, good, or complete state after d~cay, in, iury~ di~ap~datmn, or partm[ cle- ~stm~c~on~'' Reconstruction is 'the act of constructing a~g~ln.' Thes~'~eefinitions are instructive in bringing home to the ~nind that repair carries with it the idea of restoration after decay, injury, or partial destruc- tion, and that reconslructinn or r&!xoduction carries with it the idea of ~ co~lete construction o~: pro: duction over agai__n. * * * 'Having clearly in mind the specification and claims of the patent, together with the condition of decay or destruction of the patented device or ma- chine, the question whether its restoration to a sound state was legitimate repair, or a substantial reconstruction or reproduction of the patented in- vention, should be determined less by def'mitions or technical rules thau by the exercise of sound ~om- mon sense and an intelligent judgment.' The recent case of Geo. Close Co. v. Ideal, etc., Co. (C.C.A.) 29 F.(2d) 533, is very similar to the case at bar. Appellant was the owner by purchase of several patented machines for wrapping caramels of a certain size. After a time the trade favored cara- mels of a larger size. Appellant requested appellee, owner of the patents, to change over the machines so that they would wrap caramels of a larger size. Appellee refused. It appeared that machines to wrap the larger size caramels were in use under an ex- clusive right from the appellee to a third party. Ap- pellant thereupon bad the necessary changes made in his machines be a machinist. Suit for infringe- ment followed. The Court of Appeals of the First Circuit affmmed the decision of the trial court in holding the reconstruction of the machines to be in- fringement. The court in its opinion said (pages 534, 535, of 29 F.(2d): 'We can see nothing in the patent statute, as construed by the Supreme Court, or by any other court, to justify the contention that the defendant's acts did not constitute infringement. The defendant has made, and is using, the invention, in a machine in substantial part made by it- not purchased from the owner of the patents. * * * The purchaser had the right to use it and to repair it, but not to recon- struct it so as to change the identity of the machine, as this defendant did. * * * 'Such sale can'ies the right to sue the invention in the machines sold; but that right does not * * * give to the pumhaser the right to rebuild the pur- chased machines into other machines embodying © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?mt-NewYork&utid= 1 &pr ft=HTM LE&vr... 7/20/201l 41 F.2d 619, 5 U.S.P.Q. 489 (Cite as: 41 F.2d 619) Page 5 the patent invention.' Applying the principles announced in the fore- going authorities to the case at bar, it is clear that the changes made in the incubators were not justi- fied as repairs or replacements, for repairs or re- placements were not necessary. The incubators were new. Nor were the changes made in order to make the incubators adapted to a special use of fendants. No such special use existed. Nor did the changes consist in merely making use of a staple article of commerce in connection with the incubat- ors' the new tray rails and the new trays were not staple articles of commerce, but were made spe- cially for use in these patented incubators. Moreover, the reconstruction was extensive and consisted in rebuilding the tilting racks to receive more egg trays. These egg tray rocks were a vital element in the patented combination of patent 1,262,860, and were specifically covered by the patent 1,263,138. The reconstruction was, in our opinion, such as to destroy the identity of the incubators as they were received from the hands of the original vendor. By reason of the reconstruction they had become incubators of greatly increased capacity, but which embodied all the elements of the two Smith patents. We think the reconstruction clearly constituted infringement. Were the Changes in Construction Authorized by Plaintiffs? The contention of the defendants is that in and by the contract under which they purchased the in- cubators from the Buckeye Company authority was given to make the changes now alleged by plaintiffs to constitute infringement. The negotiations for the purchase were largely by correspondence. Specially relied upon by defendants are the letter *623 of September 3, 1923, and the telegram of September 10, 1923, in reply thereto. The are set out in the margin, so far as here material.FN~ Special stress is laid by defendants on the statement in the letter: 'If I could not double the capacity of the Buckeye ma- chines I would not care so much about them'; and on the statement in the telegram, 'We are entering your order for twelve number seven mammoth in- cubators on the basis of your letter of Sept. third.' The incubators were shipped in December, 1923. The 'extra ventilation' mentioned in the latter was not added FN 1. Sept. 3,1923. Mr. A. S. Hill, Gen. Mgr., Buckeye Incub- ator Company, Springfield, Ohio. Dear Mr. Hill: Your letter of the 31st ult, re'd and not what you have to say about the Newtown Giant machines. [ am going to make you one mom proposi- tion on the exchange of my Newtown Gi- ant Machines for Buckeye No. 7 machines. I will take the 12 No. 7 Buckeye machines at $17,385.00 f.o.b. Springfiel& Ohio if you will take the six Newtown Giant ma- chines (total capacity 84,000 eggs) at $9240.00 f.o.b. Lancaster, Mo. which is 11 cents an egg. Originally I asked 12 cents an egg from you and you offered me 10 cents an age. I will ship the Newtown Gi- ant Machines any place you wish, but would want them removed not later than Dec. 1st and the No. 7 Buckeye Machines shipped Dec. I to 15 not later. You can ship the 12 No. 7 Buckeye Machines sight draft attached for $8145.000. I would want Mr. Haruer to add the extra ventilation on the tops of the No. 7 machines so we can add the extra trays and double the capacity. If i could not double the capacity of the Buckeye nrachines I would not care so much about them. * * * Yours truly, © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?mt--NewYork&utid= i &prft=HTMLE&vr... 7/20/2011 41 F.2d 619, 5 U.S.P.Q. 489 (Cite as: 41 F.2d 619) Page 6 K. I. Miller. Telegram Sept. 10th 23 K I Miller Lancaster Mo. We are entering your order for twelve number seven mammoth incubators on the basis of your letter of sept third with the additional understanding that newtown in- cubators are guaranteed by you to be in first class condition and that you will crate and load them on cars as directed by us prior to December first send us all the in- quiries you have on newtown machines but if you have a chance to sell them let them go at exactly what we are allowing you Buckeye Incubator Co. If the letter and telegram stood alone, and the incubators were shipper in accordance therewith without further cowanunication between the parties, there might be some basis for defendants' conten- tion; but such is not the case. Negotiations were ap- parently begun in September, 1922, then broken off, and renewed in July, 1923. August 6, 1923, Miller, writing to the Buckeye Company, said: 'Before placing an order for ten or 12 number seven Buckeye machines, I would like to have an answer to my letter of August 3rd in reference to certain improvements that can be made on the Buckeye machine at a small expense which will greatly increase efficiency of the Buckeye Ma- chine.' 'I am confident that I wiIl want at least ten of the Buckeye number seven machines, possible twelve of thenr and can give you a definite answer within the next ten days. I will also want these ma~ chines changed somewhat fi'om the way you now build them, but this can be done at a small expense and I am willing to pay the extra expense and take my chances on their hatching chicks.' 'I can promise you at this writing that I will take ten or twelve of the Buckeye Machines at the price you quote, but cannot state at present whether I would want to pay all cash or one half cash.' Miller testified that in an interview with Mr. Hill and Mr. Haroer of the Buckeye Company at Springfield, Ohio, he told them of his proposed im- provements, which included those relating to in- creasing the capacity of the No. 7 Buckeye incubat- ors. They then told him: 'We have a contract with Dr. Smith, whereby we will not build an incubator that will hold over 12,500 eggs, and Dr. Smith will not build one that will hold under 25~000.' Miller told them that he could increase the capacity. The question of possible infringement was also dis- cussed. The parties continued negotiating as to the terms of sale, and during the correspondence and as early as September 5th the Buckeye Company in- formed Miller that no permission to make changes in the incubators had been given or would be given until authorized by the board of directors. Appar- ently both parties were in doubt whether a pur- chaser had the right to make the changes relating to capacity suggested by Miller. The correspondence shows that both parties consulted their attorneys, and that long prior to the delivery of the incubators the Buckeye Company notified Miller that they would consider the making of the proposed changes an infringement, and that suit would be brought against any one attempting to change the interior construction of the incubators. In their letter of November 19, 1923, to Miller they say: ' * * * In the light of the information which we now have from our *624 Washington attorneys, we will be obliged to bring suit against anyone who attempted to change the interior construction of Buckeye Mamlnoth incubators.' As above stated, tile incub- ators were not shipped until some tthre in Decem- ber, 1923. In view of this con-espondence it is futile to contend that the letter of September 3d and tile tele- gram of September 10th contained an agreement © 2011 Thomson Reuters. No Clai~n to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?mt=NewYork&utid= 1 &prft_-HTM LE&vr... 7/20/2011 41 F.2d 619, 5 U.S.P.Q. 489 (Cite as: 41 F.2d 619) Page 7 that Miller might make the changes. The letter and telegram, when construed in the light of the sur- rounding circumstances, and when construed in the light of the subsequent actions and correspondence of the parties, are not open to such a construction. It is plain that Miller had full knowledge of the facts and proceeded to make the changes, relying solely on his supposed right as a purchaser. The attempt to find the alleged agreement in the correspondence must be considered as an afterthought. [7] Another contention of the defendants is that the position of plaintiffs in the present suit is in- equitable, and that therefore they are not entitled to relief. The basis for this contention, as nearly as we can gather it, is as follows: That the Buckeye Com- pany is the owner of the patents by assignments from Smith; that Smith has a license back from the company to manufacture incubators of a capaci[y over 25,000; that coupled with this license is an agreement between the company and Smith that neither of them shall manufacture incubators hav- ing a capacity between 12,500 and 25,000; that in fact the incubators manufactured by the Buckeye Company and sold to defendants had a capacity of over 13,000; that this showed that the Buckeye Company was violating the contract between itself and Smith, and therefore cannot be heard to say that it was dmnaged by the acts of defendants in recon- structing the interior, thereby increasing the capa- city still further. We think the contention cannot be sustained. The contract between the Buckeye Company and Smith was purely a private matter between them. The fact that the contract precluded both of them from manufacturing incubators of capacity between 12,500 and 25,000 did not give to the public, in- cluding defendants, the fight to manufacture incub- ators of the intermediate capacities. Incubator No. 7 was rated, as between the Buckeye Company and Smith, as one of the 12,500 capacity. Smith knew the incubators and accepted royalties on them; and even if the incubators could, by suing them in a cer- tain way, be made to contain more than 12,500 eggs, that was a matter material only between the Buckeye Company and Smith- it did not restrict the rights of either as against an infringer. That both the Buckeye Company and Smith would be dam- ages by such infringement as that made by defend- ant is too plain for argument. There remains the question of the counterclaim based upon an agreement between the Buckeye Company and defendants that, if the company used certain improvements relating to height of the in- cubators, electric connections of the fans, etc., sug- gested by defendants, payment should be made therefor. The trial court found in favor of defend- ants and ordered an accounting. Defendants now contend that this finding of the trial court has be- come res adjudicata, no appeal having been taken by plaintiff company; and that the finding shows that the plaintiff company does not come into equity with clean hands. [8] The short answer to this contention is the matter has not become res adjudicata, because the decree was not a final one. Defendants could ap- peal, however, from the interlocutory decree in ref- erence to the injunction by virtue of 28 USCA § 227 (Ex parte Nat. Enameling, etc.~ Co., 201 U.S. I56, 26 S.Ct. 204~ 50 L.Ed. 707; Myles Standish Mfg. Co. v. Champion Spark Plug Co., 282 F. 961 (C.C.A. 8)); but the decree not being a final one, plaintiffs could not appeal in reference to the coun- terclaim. Keystone, etc., Iron Co. v. Martin, 132 U.S. 91, 10 S.Ct. 32, 33 L.Ed. 275; Winters v. Eth- ell, 132 U.S. 207, 10 S.Ct. 56, 33 L.Ed. 339; McGourkey v. Toledo & O. Ry. Co., 146 U.S. 536, 13 S.Ct. 170~ 36 LEd. 1079; Latta v. Kilboum, 150 U.S. 524, 14 S.Ct. 201, 37 L.Ed. 1169; Pittsburgh, etc., Ry. Co. v. B. & C.R. Co. (C.C.A.) 61 F. 705; Odbert v. Marquet (C.C.A.) 175 F. 44; Emery v. Central Tr. & Safe Dep. Co. (C.C.A.) 204 F. 965; Cutting v. Woodward (C.C.A.) 234 F. 307; Radio Corp. v. J. H. Buunell & Co. (C.C.A.) 298 F. 62; Steel & Tube Co. v. Dingess Rum Coal Co. (C.C.A.) 3 F.(2d) 805. The decree of the trial court holding the patents © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.west~aw.c~tn/print/printstream.aspx?mt=NewY~rk&utid=~&prft=HTMLE&w... 7/20/2011 41 F.2d 619, 5 U.S.P.Q. 489 (Cite as: 41 F.2d 619) Page 8 valid and infringed, granting an injunction, and or- dering an accounting covering the infringement, was correct, and it is accordingly affirmed. C.A.8 1930. Miller Hatcher/es v. Buckeye Incubator Co. 41 F.2d 619, 5 U.S.P.Q. 489 END OF DOCUMENT © 20I 1 Thomson Reuters. No Claim to Orig. US Go,'. Works. http://web2.westlaw.com/print/printstream.aspx?mt=NewYork&utid= 1 &prft=HTMLE&w... 7/20/2011 § 280-121 SOUTHOLD CODE § 280-123 Whenever a nonconforming use of a building or premises has been discontinued for a period Of more than two years or has been changed to a higher classification or to a conforming use, anything in this article to the contrary notwithstanding, the nonconforming use of such building or premises shall no longer be permitted unless a variance therefor shall have been granted by the Board of Appeals. § 280-122. Nonconforming buildings with conforming uses. Nothin~ in this article shall be deemed to prevent the remodeling, reconstruction or enlargement of a nonconforming building containing a conforming use, provided that such action does not create any new nonconformance or increase t~ nonconformance with regard to the regulations pertaining to such buildings. B. Reconstruction of a damaged building. (1) A nonconforming building containing a conforming use which has been damaged by fire or other causes to the extent of more than 50% of its fair value shall not be repaired or rebuilt unless such building is made substantially to conform to the height and yard requirements of the Bulk Schedule.ss (2) Application for a permit to build or restore the damaged portion of any building damaged or destroyed as set forth in Subsection B(I) above shall be filed within one year of the date of such damage and shall be accompanied by plans for reconstruction which, as to such portion, shall comply with the requirements set forth above. If such permit is issued, it shall lapse one year thereafter unless reconstruction in accordance with the approved plans has been initiated. § 280-123. Nonconforming buildings with nonconforming uses. [Amended 10-19-1999 by L.L. No. 16-1999] A nonconforming building containing a nonconforming use shall not be enlarged, reconstructed or structurally altered or moved, except as set forth below, unless the use of such building is changed to a conforming use. (1) Nonresidential uses: (a) Nothing in this article shall be deemed to prevent the remodeling, reconstruction or enlargement of a nonconforming or conforming nonresidential building with a nonconforming nonresidential use or construction of an addition to existing buildings or additional building on the premises, so long as said increase in size of the buildings created by enlargement of the existing buildings or structures or by the construction of a new and separate building or structure does not result in an increase in the overall building footprint(s) of more than 15%, except that said increase shall not exceed the applicable maximum lot coverage. In addition, all other setback and area requirements shall apply. 58. Editor's Note: The Bulk Schedule is included at the end of this chapter. 280:120 05. ol - 2oo6 · Board of Trustees 26 to prevent runoff. TRUSTEE KING: A foot, 15 inches high, something like that. TRUSTEE DOHERTY: And, you can put it landward to the limit of the backfill, around that location, that you have on your survey. MR. HERMAN: We don't see any problem with that. TRUSTEE DOHERTY: And I wanl to note the comments Jack just referred to is a letter from Jack McGreevey, not from the CAC. MR. MCGREEVEY: From me personally, yes. MS. HULSE: And they will be incorporated as part of the record, Jill? TRUSTEE DOHERTY: Yes, they will be incorporated as part of the record. TRUSTEE DOHERTY: I made a motion to close the hearing. TRUSTEE KING: Second. TRUSTEE DOHERTY: All in favor? (ALL AYES). TRUSTEE DOHERTY: HI make a motion to approve the application as submitted by the Park District, to include a berm landward of the limits of clearing, approximately 15 inches high, and it's a non-turf area between the bulkhead and the berm. MR. HERMAN: You are talking about between the -- between what would be a ten foot -- let me start again. Between the parking area and the bulkhead. TRUSTEE DOHERTY: Yes. TRUSTEE BERGEN: That's where the berm would be located. MR. HERMAN: Where the parking ends and you have that small berm that wouM separate out -- TRUSTEE BERGEN: That would help retain waler, yes. TRUSTEE DOHERTY: And the area between the berm and the bulkhead shal~ be non-turf. MR. HERMAN: Got it. TRUSTEE DOHERTY: It varies in width, but it's clear on the survey. MR. MCGREEVEY: I would like to pose a question. TRUSTEE DOHERTY: We are in the middle of making a motion. So that's my motion. If we could have revised plans showing the berm on that. TRUSTEE KING: HI second it. TRUSTEE DOHERTY: All in favor? (ALL AYES). TRUSTEE DOHERTY: So we just need the berm showing on that survey. MR. HERMAN: Thank you. January 20, 2010 TRUSTEE GHOSIO: Number four, Catherine Mesiano on behalf of GEORGE KoFINAS requests a Wetland Permit for the inkind/inplace replacement of an 1 lx50' wood deck and 8x32' bath house. Located: 552 East Road, Cutchogue, The LWRP has delermined this to be exempt, and the Conservation Advisory Council would not support this application under any circumstances· We were out in the field and we all saw it. And we, · Board of Trustees 27 frankly, I don't think it was an awful lot of support from the Board to move ahead with this. So with that said, would anybody like to speak toward this application? MS. MESIANO: Yes, Catherine Mesiano on behalf of the applicant. As you - the project is as you described. We met at the site and the Trustees had a number of questions, and I would like to address those issues. First of all, I need to stale the structure that is the subject of this application was a pre-existing, nonconforming struclure that was destroyed in an arson fire in August of 2006. I do have a police report that I'll give you for your records. And Mr. Bergen had asked me was the person who did this found, do they know who it was. There had been two arsons. The first one yes, and reslitution was paid. But the person who caused the second arson fire was not caught. So we have requested the arson report from the Suffolk County Police. We have not gotten that yet but I'll give you this police report for your records. Lauren, I would also like to give you my affidavit of posting. Also at the site, we talked about the fact that I have obtained a DEC permit, and you asked for a copy of that, so I'll give you that as welt. Some comments were made on site regarding, well some of the earlier comments, the fact that it looked a little too formal, a little potentially habitable. The plans were amended and I believe five copies of plans were dropped off at your office, later, lasl week, and you should have those. Windows were removed, it was shown to be a simple board and batten siding. The windows on the side, sides, that would be east/west and the north side were removed. So it's just windows and door on the south side. The windows were made smaller and higher, trying to address your concerns of it being habitable or potentially habitable. And the layout of the interior is very simple, It's a changing area, a storage area, and just a Center open area. It was intended to have electricity only to the structure for the purpose of security and service. No water; strictly a beach cabana to replace the structure that had been previously existed. We are not looking for anymore than what previously existed. We are asking the Board's consideration for an inplace -- inkind inplace replacement of the structure. Since this was not a deliberate act on the part of lhe owner, it's not a blalant attempt to put a new building down on the beach, etc. This was an act that was a malicious, intentional act that caused the total loss of the structure, and we are simply looking for replacement of the structure. I believe that there are some cases that have come before this Board in the past where the Board has approved applications that are similar to this. One is the Shank project which was in Nassau Point, and in that instance there was an approval to build up to the existing deck, and I believe an enclosed porch up to the existing, up to and on to, excuse me, up to and on to the existing bulkhead. And that's down in Fishermans Beach January 20, 2010 · Board of Trustees 28 section. Another example of a situation where an inplace replacement of a fire-damaged structure is the Soundview Motel. That was an inplace replacement with roof line modifications only, to a nonconforming structure that was fire damaged. And the third project that I'm aware of was a project in Paradise Point on Basin Road. It was the Keitt project where the Board approved a swimming pool up to the bulkhead on a high, very steep bluff. And there was no clearance. I will provide the Board with copies of all of those decisions. I was not able to get out here because of the extra day off, it kind of took some of my work time. But I'll provide the Board with copies of those determinations. I'm not asking for anything that the Board has not seen fit to prove in the past. We are not looking to enlarge or expand. We are asking for the Board's consideration because this is, I would call it a special circumstance. An arson is certainly something that none of us should have to suffer loss from. And we agree with Dr. Kofinas that he should be entitled to replace the structure inkind. And, again, the DEC has given its approval. I have an application in the Building Department in preparation for my Zoning Board application. And we request the Board's consideration on it and rll be glad to answer any questions. TRUSTEE KING: Cathy, how do these plans compare to the approved DEC plans? MS. MESIANO: These plans are the same footprint. The only thing that is different is we minimized the exterior of the structure and that some windows were removed. The windows that were left were made smaller, and some of the trim was removed. TRUSTEE KING: Because we have the permit but we don't see the approved plans. MS. MESIANO: Same footprint. TRUSTEE KING: It says by East End Design Associales. MS. MESIANO: Same footprint, same roof line, and again, it's because they were so large, I didn't have the opportunity to copy them, but Ill give you a copy of the DEC approved plans as well. You have the written portion of the permit. But I'll give you the plans and you'll see that the footprint and the roof line is the same. The difference is the fenestration, really, since our meeting the other day. TRUSTEE KING: You mentioned the motel that burned. MS. MESIANO: Yes. TRUSTEE KING: That was not completely gone. I Ihink it's a different between the roof being gone and whole structure not being there. MS. HULSE: And it wasn't an unpermitted structure. MS. MESIANO: I would not say mine was an unpermitted structure, because it was a pro-existing structure. MS. HULSE: Right. But it was never given a permit, is my point. It was never permitted. MS. MESIANO: I can't say that for sure because I'm trying to January 20, 2010 Board of Trustees 29 track down the CO. I have to confirm that as well. Because I can't agree that it was never permitted. If we have a certificate of pro-existing use. TRUSTEE DOHERTY: I have a question on this. On the cabana, you say no plumbing, electric for basic lighting and security and service. What does "and service" mean? MS. MESIANO: If someone wants to take a blower and blow out the sand or take a vacuum cleaner to clean the place. TRUSTEE DOHERTY: I think if you want to list that, you have to be a little more specific. Service can mean anything. It says and service so we put water service there. MS. MESIANO: Okay, I could be moro specific. But I think we did say no plumbing. TRUSTEE DOHERTY: You did, but, I'm just trying to tighten it up so it's not a problem here. We could just take the words "and service" off. MS. MESIANO: Just put electricity. What we do with it is irrelevant, if is there electricity down there. TRUSTEE DOHERTY: Right. TRUSTEE GHOSIO: I was not on the Board when this happened and the first application came in to revegetate the bluff. So in looking at the pictures, this happened while the construction was going on in the main house? MS. MESIANO: That's correct TRUSTEE GHOSIO: I don't see any pictures in the file of what was there originally. MS. MESIANO: We tried to get those pictures for you and we ended up with some scanned Polaroids and they were mostly family photographs, and it was more people than structure. So I'm still working on getting you something. However, I can show you, I have an aerial photograph from Aerographics that cieady shows the structure existing on the date of this photograph, which is 1976. And I also have a 1977 as-built survey done by Van Tuyl that shows the structure. I'll have to give you copies. These aro my only. So I can't leave them with you. But I'll share. I have this where I have this posl it, you'll see the outline of the structure right here as we proposed. And this is a copy of what the DEC approved, but I'll give you a better copy than this. (Handing). TRUSTEE GHOSIO: I think this is the same as what we have in the file. MS. MESIANO: The original submission I made to you was what lhe DEC approved. What I remitted was changed only as far as the exlerior -- TRUSTEE GHOSIO: Windows and such. MS, MESIANO: Yes, it's not something I would go to the DEC for an amendment for. TRUSTEE GHOSIO: Okay. MS. MESIANO: If you would like copies of those, Ill provide them, TRUSTEE GHOSIO: I would like to see a picture of what the structure actually looked like. January 20, 2010 Board of Trustees 30 MS. MESIANO: This just shows the deck and the deck around it and the foot, you know, the roof of the structure. What rm working on getting whatever older photographs that I can. I'll do the best I can on that. TRUSTEE GHOSIO: Any comments from the Board? TRUSTEE BERGEN: Well, I would just repeat what I had said out in the field, since we are on the record, now, Believe me, I hear what you are saying about the loss of this structure was caused by arson. But it was a previously nonconforming structure and I know that the, I believe it's even in the code, that when a previously nonconforming structure disappears, for some reason, it doesn't mean that we can automatically say, yes, that there should be a new structure of the same size or even smaller there. MS. MESIANO: I hear what you are saying, and I think the operative concept here is that you don't just automatically say that, yes, there should be, but that there could be. I don't think you are prohibited from granting relief in this instance. TRUSTEE BERGEN: I agree. We are not prohibited. I don't feel we are. MS. MESIANO: I don't either. And as we bdefly touched upon in our field inspection, there has been a matter before this Board that has gone on ad nauseam in which there was a structure that was not pre-existing and it was totally nonconforming, there was never a permit for any part of the structure, any modification, expansion of the structure. And the structure had been removed at a point in time and then reappeared at a later point in time. And then the Board ordered its being moved to a different location. So if the Board can take a structure that was not legally entitled to exist under any circumstances and be as generous in thai instance, then I think that the Board should at least consider our request. Because we are not, I don'l believe we are creating any damage by what we are looking for. TRUSTEE GHOSIO: I'm sorry, but what were you referring to? MS. MESIANO: I'm referring to the dock in the Paradise Point basin. That was clearly demonstrated by me that the structure did not pre-exist zoning. TRUSTEE BERGEN: And with all due respect to that, I'm just speaking for myself, dock and basin, to me, sorry, has nothing to do with a beach house being proposed in Peconic Bay. I'm just saying, it's apples and oranges to me. TRUSTEE KING: I agree. MS. MESIANO: I'm looking at the nonconformity aspect and the Board's willingness to be lenient in one aspect and not be lenient in another. And I'm asking for comparably consideralion. We spoke briefly about what the use of this .structure would be, what it was, what it would be, and it's intended to be exactly that, a beach cabana where your beach toys, your beach furniture, your boats, your things that you are using on the beach, are stored and secured. And it was mentioned by one of the Trustees, just drag it up on the beach. And I have to say it, if one is dragging up a few Sunfish and a January 20, 2010 · Board of Trustees 32 January 20, 2010 they've had for the same use that they've had for many, many years. TRUSTEE BERGEN: Another question, possibly last question I'll have is, would they entertain, instead of having a bath house here, just a wood deck down there? MR. ARM: I don't think they would. Basically at this point they are really looking to enclose what they have, just really as a storage building and building to use at the beach. TRUSTEE GHOSIO: Typically, most sheds are 10x10, right? Building Department allows a 10x10 shed. TRUSTEE DOHERTY: Yes. TRUSTEE KING: 100 square feet without a building permit. MR. ARM: And I completely understand what the Board is saying regarding non-conforming uses. And had it been destroyed by the elements, you know, from storms or things like that, I think I also could definitely agree with you not necessarily having the right to rebuild it, because obviously something detrimental did happen to it and it shouldn't have been there. But in this case since it was arson, I believe that they should have some rights to rebuild what was there. And regarding any bits of the foundation, part of it was built, on the bulkhead that was there, was part of the support for it. So it's not entirely all gone, and part of it was still there, but after the fire was removed, because it actually created an unsafe situation for anybody on the beach if they were if to go near the burnt structure. So it's not even, granted 99 or 95% of it was destroyed, but not 100% of it was destroyed. Some of it was removed. TRUSTEE DOHERTY: Regardless whether it's arson or mother nature, it's beyond their control. That's how we are looking at it. You know, it's a sad situation, nobody wants to go through that, but whether it's a hurricane that took it away or fire, it still remains the same that it's not there, it was not permitted and it's nonconforming. And we have the choice to either prohibit it or not prohibit it. MR. ARM: I understand. But I just lhink in the scheme of things, I think there is definilely a difference, for everybody's mentality or sort of almost, what you would think would be some sort of rights, even through I know that doesn't really exist, for having something if it was, something that was not controlled by them or by mother nature. I think there is a very, very big difference. And I think there is past precedent as well. TRUSTEE KING: Is there a legal difference? MS. HULSE: To answer Jim's question, there is no legal difference. The applicant would not even have the right to make repairs to it if it was an unpermitted structure. So lo argue that it's gone and the reason why it's gone really doesn't bear on the Trustees' decision, legally speaking. And I forget my other point. I had something else to say. Maybe it will come to me two more applications down the read. Board of Trustees 33 January 20, 2010 MR. ARM: I do know, as Cathy mentioned, she is looking into seeing what type of paperwork did exist, something regarding like a pre-CO or something else. MS. HULSE: I know. Just to make the analogy with the 10x10 and the building department, it still has to comply with zoning laws. So even though there is not a permit to required for something of that size, obviously, this pertains to this issue, you still have to comply with that. TRUSTEE DOHERTY: That just pertains to the Building Department. MS. HULSE: Correct. TRUSTEE GHOSIO: Would the applicant be open to substantially reducing the request on the deck size as we well as the structure? MR. ARM: I think if you wanted to propose something, it could be a point of discussion, obviously, if that's where it led us. TRUSTEE GHOSIO: Is there any interest from the Board? MS. HULSE: If I could advise you, you may want to just make a decision on this and if the applicant wants to come back and revise it substantially, because lhat would obviously be a substantial revision -- TRUSTEE DOHERTY: That's what I was thinking. MS. HULSE: (Continuing) it would not be a simple modification. I think they could reapply. TRUSTEE BERGEN: Bob, I would be interested in headng some further comments from the representative from the Conservation Advisory Council, because I know in their comments they said, they absolutely do not support this under any circumstances. If you could provide, if possible, a little more, abbreviated reasons. MR. MCGREEVEY: Wilh very limited background in the legal end of it, we based it on what we thought would be a legal decision. Is it permitted or is it not permitted. And it would be entirely up to you people, but based on the little we knew, we figured it should not be restored, strictly on a legal basis. TRUSTEE BERGEN: Thank you. TRUSTEE GHOSIO: Any other comments? TRUSTEE BREDEMEYER: It's a concern, I mean I have a concern that this is below a substantial topographical feature that the bluff area there is rather large. And if it were in a difference place in the town, it would have been, it just would not be possible. If it was in a coastal erosion hazard area or other areas, and it almost looks like a dune starting to form in front of it. There is deposition of sand in addition to what looks like Spartina or patens that is in front of it. MS. MESIANO: If I could interrupt you. That's bamboo. TRUSTEE BREDEMEYER: I'm talking seaward of, in fact the bulkhead, is Spartina. The stuff actually there is Japanese Knotweed, which is an invasive -- MS. MESIANO: Right, out on the beach, there is bamboo that is taking over. TRUSTEE BERGEN: The dune is out toward the beach. TRUSTEE BREDEMEYER: The dune is definitely toward the beach . Board of Trustees 34 which is actually part of the dune that is more to the east. So there are natural features here that ordinarily you would not be placing a structures seaward of a major natural feature, which essentially is a bluff. MS. MESIANO: With all due respect, it's not in another part of the town, it's not in a coastal erosion hazard area. The fact that the structure stood for at least 50 years and it finally succumbed to arson, not the elements or water or hurricane, I think is relevant. And I think that the Board has the latitude and I'm asking for the Board to use that discretion because as I January20,2010 mentioned, there are other instances where the Board has used its discretion and given latitude to properly owners to build things that are not strictly within the confines of the code, and you have the ability to do that. You have done it in the past and we are asking for something minimal. MS. HULSE: I agree with Cathy, there has been some discretion used on the part of the Truslees. I don't recall any case where something like this has ever been authorized by the Trustees. I don't think there is a precedent where you could point to that cites very similar or the same facts. Because the ones that you have cited that I'm familiar with are not similar factually. Although I understand your point. MS. MESIANO: They are similar to the extent that the separation distance, which is what the Trustees are looking for, the separation dislance is similar. The fact that -- MS. HULSE: What do you mean the "separation distance"? MS. MESIANO: The setback from whatever your setback point is. In this case we would have to use high tide because that's not, thars -- the wooden structure is not a bulkhead per se. The definition of a bulkhead is a structure that separates earthen material and water. And the definition of a retaining wall is a structure that separates earthen material from earthen material. So that structure, that wooden structure that is shown there, is at best a retaining wall. MS. HULSE: I appreciate that but you are making my point which is the facts are not the same. Is that they did impart their discretion in certain circumstances, and you cited a few, but it's not exactly the same facts, and I think that will have to be part of their analysis. It has to be applied specifically to the facts before them if they are going to use their discretion in a way that will deviate from the norm. MS. MESIANO: My point then is they have deviated from the norm in numerous olher situations and their motivations -- I'm not privy to what their motivations were, however there has been deviation from the norm and there has been consideration granted to applicants in the past and because of the special circumstances we are asking for that consideration. MS. HULSE: I understand that, Cathy, I'm just saying as their legal advisor that you've cited precedent, it's not an exact Board of Trustees 35 January20,2010 precedent because they are not bound by it. But it is obviously advisory. They can take it and use it in whatever manner they choose. It's just not a strict precedent they have to follow. That's my only point. MS. MESIANO: I understand that. In an area that is as unique as the North Fork where no two proper{ies are alike, it's rare you'll have two identical situations, but you'll have conceptually similar situations, and I think that's my point. We have conceptually similar situations where the Board has granted its discretion and I've seen the Board grant its discretion time and time again over the past 20 years that I have been working here. So I do know that it's possible. TRUSTEE BERGEN: Bob, do we have a picture of where the stairs are coming down, or no? TRUSTEE GHOSIO: With the stairs coming down (Perusing). I don't think I have one here. (Perusing). I think at this point we are kind of belaboring some of the poinls that have already been made. MS. MESIANO: I would request the Board held this open, because as we mentioned, I have other information to give to you. If you would like revisions, I would like to be able to come back and discuss them. TRUSTEE GHOSIO: Well, this is what I'll say. As most people here know, I suffered a total loss due to fire. So I do understand the ramifications and the things that you are describing. That being said, this is a somewhat unique situation. This was essentially a non-permitted structure. Me personally, I would be open to hearing other ideas, something considerably smaller, substantially smaller than what was there, but at this point I think that the Board in general is ready to move on the application as it is, so I'm going to go ahead and move it with the understanding that of course the applicant can come back at any time with another idea, another application. MS. MESIANO: I would like to make a comment. You and other members of the Board keep saying non-permitted structure. We have not concluded definitely that this meets that definition. If it was constructed prior to 1957, then it was a pre-existing, nonconforming structure. If it was built without benefit of a permit at some point in time after 1957, then you might say that it was an illegal or non-conforming structure or non-permitted structure. But the age of the structure is, would be relevant because of the terminology that has been employed by various members of the Board. A nonconforming structure is exactly that. it doesn't meet the present code. But a pre-existing non-conforming structure bears more weight as far as its legal viability. So I just want to clarify that, because the term has been used loosely and I just want to say for the record that it's my belief that it is a pre-existing nonconforming structure. Not simply a nonconforming structure. TRUSTEE DOHERTY: Lori, what are your thoughts. MS. HULSE: What do you base that on? When you say your belief, whal do you base that on? Board of Trustees 36 January 20, 2010 MS. MESIANO: I have been sold that and I'm trying to get my hands to something old enough to prove that. MS. HULSE: I understand what you mean when you say it might bear more weight and certainly might to the Trustees, I can't speak to them on that. However I don't know that it gives you anymore dght to having it rebuilt. MS. MESIANO: I just would tike the record to reflect a consistent use of the correct term because the terminology has been used loosely and it's been used incorrectly and I would like - MS, HULSE: I don't know that it's been used incorrectly. It's your burden to come in here and show us whether it is pre-existing nonconforming. You have not done that yet. You might -- MS. MESIANO: Then I don't want the Trustees to make definitive statements. MS. HULSE: They are making statements based on what the record shows at this point. And at this point I would have to agree with their assessment of it. I think it's a fair stalement they are making. But that's not something I think we should be arguing. Legally speaking, however, it doesn't give you any more leverage, it doesn't give you anymore right. But if the Trustees want to take and allow the adjournment for you to consider that and provide more information, that is, again, that's totally within their discretion. MS. MESIANO: Since we have the application, rather than having to go through Ihat process all over again. MS. HULSE: That's their decision to make. TRUSTEE BERGEN: If I could add to Bob's comments. I agree with what Bob said. My other concern with this is thai when this was the Mothersele properly, what was there esthetically and what is being proposed esthetically are completely apples and oranges. You are constructing something to look like the house up above, granted the windows are smaller and the door is smaller, but in my opinion, esthetically, this would nol fil in at all for any beach structure that we have approved in this area. And I don't remember any that we've approved in this area on Peconic Bay period. But any that are currently there on Peconic Bay. So I'm also not inclined to support this application for the reasons Bob said plus, esthetically, it doesn't fit in at all. I've leave it at that. MS. MESIANO: Esthetically, we can change anything. MR. ARM: Craig Arm, once again. The structure that was there originally was very, very similar in the exterior esthetic with one exception of the roof line, which had a simple shed roof line. So if that is something, as I mentioned before, on the design element, that the Trustees really see as that detrimental in changing the roof line, that is something that is not going to effect the use for the Kofinas', by all means, that is something we would entertain discussing, as far as changing the roof tine back to the original shed. That, I guarantee they would note have any issues with. TRUSTEE GHOSIO: Dave, of course, I never got to see the original Board of Trustees 37 January 20, 2010 structure. You are more familiar with that. This is completely different than what was originally there, righl? TRUSTEE BERGEN: To be honest with you, I remember a structure being there but I can't honestly say I remember specifically what that structure was. As I recall, it was a simple wooden structure that was, at lhe time, I knew relatives of Mrs. Mothercele, they used to store Sunfish and beach chairs and that was it. I can't tell you what the size was. I don't recall the size, I don't recall anything.'lt was a very simple wooden structure. And this was one of my point. Just one of the points in my decision making process, is that it just doesn't come close eslhetically to what was there and it would not match anything that is along that shoreline. MS. HULSE: What has the applicant provided in terms of proving what was there originally? This whole conversation is almost pointless. We are talking about replacing something and there is nothing in the file thal even demonstrates what we are replacing, that the Trustees are considering? MR, ARM: I believe that's what Cathy was showing for the footprint and we have proof of the footprint. The actual elevations or pictures of it is what we have been having a little bit difficulty time. I have a very poor scanned copy of a Polaroid that then got faxed through to me today which I can, I have to check and see if I have here. It's almost illegible though. But if you would like, by all means, they are sending me that picture, which we'll be happy to submit to you, to get color copies to submit. But I did see the structure before it was burned. I was involved with the structure above, so thal was always down there. We kind of looked down on the structure from up above, and I had been down to it from the outside. Never actually in it. And it was a wood, vedical wood sided structure with a shed roof. And we definitely will provide pictures of such. TRUSTEE GHOSIO: Again, I just don't see the Board's wanting to table this. I just don't see the suppod for it after hearing the testimony. I think we would probably be more prudent to move on it. If you want to make another application for something different, by ail means, it's within your rights. The one thing I do want to touch base on quickly before I move ahead is, we had talked about it out in the field about removing the lower fence. I believe we still want to have that done. TRUSTEE DOHERTY: As a condition of the previous house permit. TRUSTEE GHOSIO: Right. So we appreciate if that got taken care of. If there is no further comment, I would like to make a motion to close the hearing. TRUSTEE DOHERTY: Second. TRUSTEE BERGEN: Before we do that, I believe the removal of that fence was connected with the stairs. And is lhere some way we can condition a timeframe now, since it's been a significant period of time since that was done, condition the timeframe to have that fence removed within this motion? Or is that -- Lori, Board of Trustees 38 January20,2010 is that something that can't be done within this motion? TRUSTEE GHOSIO: (Perusing). This is for the stairs. TRUSTEE BERGEN: As I recall for the stairs, and it has not been removed, can we now give them a specific timeframe in which to remove those stairs in conjunction with this motion or does it have to be done separately? MS. HULSE: You can do it as a recommendation right now and I could follow that up with the bay constable, but it should not be part of this. TRUSTEE BERGEN: Should not. Thank you. TRUSTEE GHOSIO: I would like to make a motion to close lhe hearing. TRUSTEE DOHERTY: Second. All in favor?. (ALL AYES). TRUSTEE GHOSIO: I would like to make a motion, based upon the record that we have in that there are no specifics or surveys that have been presented by the applicant demonstrating what the applicant is replacing, that we deny without prejudice this application for George Kofinas. TRUSTEE BERGEN: I'll second that motion. TRUSTEE DOHERTY: All in favor? (ALL AYES). MS. MESIANO: If I may comment. I did provide you with a survey and aerial photograph from 1976 and '77, respectively, that did demonstrate what was there at the time. Esthetically, it did not represent what was there, but I did provide you evidence back to 1976 as to the structure that existed at that time, both on lhe survey and on the certified aedal photograph that is used that was accepted by the DEC, so I would -- TRUSTEE DOHERTY: Yes, that's the stuff you presented tonight that you have a copy. MS. MESIANO: Yes. So I think irs an incorrect statement to say that I provided no evidence of what was there, Because I did provide evidence of what was there. TRUSTEE DOHERTY: I think we need to move on. We closed that vote. The next application -- TRUSTEE GHOSIO: We have to make a motion on that fence. TRUSTEE DOHERTY: I thought we were just going to make a recommendation. TRUSTEE GHOSIO: How do you want to phrase that? TRUSTEE BERGEN: I don't want to make a recommendation. I would like to see the fence removed within 30 days. TRUSTEE DOHERTY: Cathy, can you come back, we would like to talk about the fence that is related to the staire. - MS. MESIANO: The fence had nothing to do with the stairs. TRUSTEE DOHERTY: It was on the house application, right? MS. MESIANO: No, there was never an application for stairs. The fence was there previously. The fence was left there during the construction. The fence was discussed during the time that I came before the Board for the revegetation of the bluff from the arson damage. TRUSTEE DOHERTY: Okay, so that was connected to that. Board of Trustees 39 January20,2010 MS. MESIANO: And it was requested that it stay for the duration of the construction for security purposes, and I don't know if there is any construction still ongoing on the main level, because I'm not involved with that. TRUSTEE GHOSIO: The permit that I have here from April 20, 2005, states: Wetland Permit to renovate the existing residence, construct a second floor ad. dition, install an inground swimming pool and pavilion and install a chain link fence along the top of the bank. All with the condition that drywells are installed to contain roof runoff and the pool backwash, and existing chain link fence along the bottom of the bank is completely removed within six months from the date of the permit. And it's all depicted on the survey. TRUSTEE BERGEN: Bingo. MS. MESIANO: Ill Bingo you back because during the time - TRUSTEE BERGEN: Let's move on. MS. MESIANO: I need to address that. During the time of the application thal I had before you for the revegetafion, the Board granted additional time for that. I don't recall what the end date, if there was one. Ar~ it was, it had to do with the duration of the construction, and the security of the site, which I think we have proven is necessary. TRUSTEE DOHERTY: One minute. We'll look in the file. TRUSTEE GHOSIO: On September 20, 2006, Wetland Permit to revegetate approximately 2,500 square feet on the bluff face that was damaged by fire as per restoration plan prepared by Cathy Mesiano, dated 8/16/06, and repair, replace the cap of the pre-existing retaining wall as depicted on the plans surveyed by Joseph Ignano, revised August 22, 2006, with the condition that any oak trees that are alive in the Spring of 2007 remain on the bluff, and any lhat are dead may be removed by cutting at grade without disturbance to the bluff. That's it. No reference to the fence at all. MS. MESIANO: I'm sure if you read through the transcript, there was discussion about the fence. I have no control about how the resolution is made. TRUSTEE GHOSIO: It does say on the field notes from August 16, 2006, as part of the modifications discussed by the Trustees -- and I was not a member at that time -- modifications recommended were to remove the fence. MS. MESIANO: Right, it was discussed at the hearing about security. I don't recall the verbiage. TRUSTEE DOHERTY: Okay, let's move on, and do we want to make a resolution now requesting them to remove the fence? MS. HULSE: You don't need to do it by resolution. TRUSTEE DOHERTY: Okay. Cathy can you make sure the fence is removed? MS. MESIANO: I'll pass the word along. TRUSTEE DOHERTY: Thank you. TRUSTEE DOHERTY: Number five, Suffolk Environmental Consulting Jill M. Doherty, President James F. King, Vice-President Dave Bergen Bob Ghoslo, Jr. John Bredemeyer Town Hall Annex 54375 Main Road P.O. Box 1179 Southold, New York 11971-0959 Telephone (631) 765-1892 Fax (631) 765-6641 January 20,2010 BOARD OFTOWNTRUSTEES TOWN OFSOUTHOLD Ms. Catherine Mesiano Catherine Mesiano, Inc. 12 Mill Pond Lane East Modches, NY 11940 RE: GEORGE KOFINAS 552 EAST END RD., CUTCHOGUE SCTM#110-7-18.2 Dear Ms. Mesiano: The Board of Town Trustees took the following action dudng its regular meeting held on Wed., January 20, 2010 regarding the above matter. WHEREAS, Catherine Mesiano on behalf of GEORGE KOFINAS applied to the Southold Town Trustees for a permit under the provisions of Chapter 275 of the Southold Town Code, the Wetland Ordinance, application dated December 23, 2009, and, WHEREAS, said application was referred to the Southold Town Conservation Advisory Council and to the Local Waterfront Revitalization Program Coordinator for their findings and recommendations, and, WHEREAS, in accordance with Chapter 268, said application was found to be Exempt from the Local Waterfront Revitalization Program policy standards, and, WHEREAS, a Public Hearing was held by the Town Trustees with respect to said application on January 20, 2010, at which time all interested persons were given an opportunity to be heard, and, WHEREAS, the Board members have personally viewed and are familiar with the premises in question and the surrounding area, and, WHEREAS, the Board has considered all the testimony and documentation submitted concerning this application, and, WHEREAS, the structure, as applied for, does not comply with the standards set forth in Chapter 275 of the Southold Town Code, and, WHEREAS, the Board has determined that the structures, as applied for, will have a detrimental effect upon the health, safety and general welfare of the people of the town, NOW THEREFORE BE IT, RESOLVED, that for the foregoing masons, and based upon the record and that there are no specifics of surveys that have been presented by the applicant demonstrating what the applicant is replacing, and failure to meet the standards contained in Chapter 275 of the Town Code, the Board of Trustees DISAPPROVES WITHOUT PREJUDICE the application of GEORGE KOFINAS for the inkind/inplace replacement of an 11'X 50' wood deck and 8'X 32' bath house, as depicted on the site plan prepared by East End Design Associates, LLC last revised January 12, 2010. This is not a determination from any other agency. Very truly yours, /dill M. Doherty, Pmside/ly ~Board of Trustees "' JMD/Ims Chairman Lauren Standish, Secretary Conservation Advisory Council Town of Southold Town Hall, 53095 Main Rd. P.O. Box 1179 Southold, NY 11971 Telephone (631 ) 765-1892 Fax (631 ) 765-6641 At the meeting of the Southold Town Conservation Advisory Council held Wed., January 13, 2010, the following recommendation was made: Moved by Peter Young, seconcded by Doug Hardy, it was RESOLVED to NOT SUPPORT the Wetland Permit application of GEORGE KOFINAS for the inkind/inplace replacement of an 11'X 50' wood deck and 8'X 32' bath house. Located: 552 East Rd., Cutchogue. SCTM#110-7-18.2 Inspected by: Peter Young The CAC would Not Support this application under any circumstances. Vote of Council: Ayes: All Motion Carded OFFI CE LOCATION: Town Hall Annex 54375 State Route 25 (cor. Main Rd. & Youngs Ave.) Southold~ N-Y 11971 MAILING ADDRESS: P.O. Box 1179 Southold, NY 11971 Telephone: 631 765-1938 Fax: 631 765-3136 LOCAL WATERFRONT REVITALIZATION PROGRAM TOWN OF SOUTHOLD MEMORANDUM Jim King, President To: Town of Southold Board of Trustee~ From: Mark Terry, Principal Planner LWRP Coordinator Date: January 15, 200~'/0 Re: Proposed Wetland Permit for GEORGE KOFINAS SCTM#110-7-18.2 Catherine Mesiano, Inc. on behalf of GEORGE KOFINAS requests a Wetland Permit for the inkind/inplace replacement of an 11'X 50' wood deck and 8'X 32' bath house. Located: 552 East Rd., Cutchogue. The proposed action has been reviewed to Chapter 268, Waterfront Consistency Review of the Town of Southold Town Code and the Local Waterfront Revitalization Program (LWRP) Policy Standards. Based upon the information provided on the LWRP Consistency Assessment Form submitted to this department, as well as the records available to me, it is my recommendation that the proposed action is EXEMPT from LWRP review pursuant to: § 268-3. Definitions. MINOR ACTIONS item "B" which states: Replacement, rehabilitation or reconstruction of a structure or facility, in kind, on the same site, including upgrading buildings to meet building or fire codes, except for structures in areas designated by the Coastal Erosion Hazard Area (CEHA) law where structures may not be replaced, rehabilitated or reconstructed without a permit; Cc: Lori Hulse, Assistant Town Attorney GEORGE KOFINAS RESIDENCE GEORGE KOFINAS RESIDENCE BATH HOU$~ ~I~E pLAN AND BOARD OF SOUTHOLD TOWN TRUSTEES SOUTHOLD, NEW YORK PERMIT NO. 6451 DATE: Se tember 20 2006 ISSUED TO: GEORGE KOFINAS PROPERTY ADDRESS: 5 2 EAST ROAD CUTCHOGUE SCTM # 110-7-18.2 AUTHORIZATION Pursuant to the provisions of Chapter 275 and/or Chapter 111 of the Town Code of the Town of Southold and in accordance with the Resolution of the Board of Trustees adopted at the meeting held on September 20. 2006. and in consideration of application fee in the sum of $250.00 paid by Geor~te Kofinas and subject to the Terms and Conditions as stated in the and permits the following: Wetland Permit to re-vegetate approx. 2500 sf. on bluff face that was damaged by fire, per restoration plan prepared by Catherine Mesiano, Inc., dated 8/16/06; and repair/replace the cap of the pre-existing retaining wall as depicted on the by Joseph A. Ingegno revised August 22, 2006; with the condition that any oak trees are alive Spring 2007 remain on the bluff and any that are dead may be removed by cutting at grade without disturbance to the bluff. IN WITNESS WHEREOF, the said Board of Trustees hereby causes its Corporate Seal to be affixed, and these presents to be subscribed by a majoriW of the said Board as of this date. Board Of $outhold 'Town Trustees SOUTHOLD, NEW YORK PERtvflT NO, ...~.l~.J ......... DATE:, ..*~B~'.LL...~.,.....,2..oos TO GEORGe; KO¥1~NAS ISSUEO ............................. .., ................................................................... Pursueet to the provisions of Chapter 615 of the Laws of the. State of New YotlG 1,8.93~ and Chapter 404 of the .Laws of the · $~ate of New York 1952, end t~e SoufhoJd Tm/m Ordinane. e ea. titled '!~REGULATING AND THE.=PLACIM~ OF..OIL~:ILUGalQ~S IN AND ON TOWN WATERS AND FUBUC. LANDS and-the REMOVAL OF SAND, GRAVEL-OR OTHER MATERI~K4 LANDS UNDER TOWN WATERS;.-'.:. and in wlJh 'the Resolution of The Board adopted at a meeting held . ~.0..~, and in consideration of the sum of $......2..~_0~._9g.. _.. paid by GeD:ge of ....................... C..u.~.g_.u..~ ............................... N. Y. and ~ubjed to the Terms and Conditions listed on the reverse side .hereof, of Southeld Town' Trustees authorizes and permlts the folowlng: Weffa~l Pem~t to renovate the eJd~l~g ~e~dence, c~nstn~t a se~ond-lkx)r ecidillo~. I~tal an In-~ound .the originating apl~cafloa. IN WITNESS WHEREOF, ~a said B~rd Of Trustees here. by' c.4usas Hs Corporate Seal 'to be a~n~ed, a~! ~ese I~eS~h to be ,u~sc~bed .by, :.maj<x1~/of the saki. Board .as of SITE pLAN OF PROPERTY $ITUATBD AT CU?C~OGU~ TOWN OF SOUTHOLD SUFFOLK COUNTY, NEW YORK S.C. TAX No. pLAN BASE ON trEY PROVIDED BY BOARD MEMBERS Leslie Kanes Weisman, Chairperson James Dinizio, Jr. Gerard P. Goehringer George Homing Ken Schneider Southold Town Hall 53095 Main Road · P.O. Box 1179 Southold, NY 11971-0959 Office Location: Town Annex/First Floor, Capital One Bank 54375 Main Road (at Youngs Avenue) Southold, NY 11971 hnp://southoldtown.northfork.net ZONING BOARD OF APPEALS TOWN OF SOUTItOLD Tel. (631) 765-1809 · Fax (631) 765-9064 LEGAL NOTICE SOUTHOLD TOWN ZONING BOARD OF APPEALS THURSDAY, JUNE 2, 2011 PUBLIC HEARING NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and Town Code Chapter 280 (Zoning), Town of Southold, the following public hearing will be held by the SOUTHOLD TOWN ZONING BOARD OF APPEALS at the Town Hall, 53095 Main Road, P.O. Box t179, Southold, New York 11971-0959, on THURSDAY~ JUNE 2~ 20tt: 11:45AM - GEORGE D. and MARIA KOFINAS #6473 - Requests for Variance under Section 280-tt6, based on the Building Inspector's February 17, 2011 Notice of Disapproval concerning an application to rebuild a preexisting accessory bath house with deck, which proposed construction will be: 1) less than the code required setback of 75 feet from the bulkhead; location: 552 East Road (adj. to Cutchogue Harbor (Great Peconic Bay)) Cutchogue, NY SCTM#1000-t 10-7-18.2 The Board of Appeals will hear all persons, or their representatives, desiring to be heard at each hearing, and/or desiring to submit written statements before the conclusion of each hearing. Each hearing will not start earlier than designated above. Files are available for review during regular business hours and priorto the day of the hearing. If you have questions, please contact our office at (631) 765-1809, or by email: Vicki.Toth(~,Town. Southold.ny.us. Dated: May 9, 2011 ZONING BOARD OF APPEALS LESLIE KANES WEISMAN, CHAIRPERSON By: Vicki Toth 54375 Main Road (Office Location) 53095 Main Road (MailinglUSPS) P.O. Box 1179 Southold, NY 11971-0959 ZONING BOARD OF APPEALS MAILING ADDRESS and PLACE OF HEARINGS: 53095 Main Road, Town Hall Building, P.O. Box 1179 Southold, NY 11971-0959 (631) 765-1809 Fax 765-9064 LOCATION OF ZBA OFFICE: Town Hall Annex at North Fork Bank Building, 1st Floor 54375 Main Road and Youngs Avenue, Southold website: http://southtown.northfork.net May 6, 2011 Re: Town Code Chapter 55 -Public Notices for Thursday, June 2, 2011 Hearing Dear Sir or Madam: Please find enclosed a copy of the Legal Notice describing your recent application. The Notice will be published in the next issue of the Times Review newspaper. 1) Before May '16th: Please send the enclosed Legal Notice, with both a Cover Letter including your telephone number and a copy of your Survey or Site Plan (filed with this application) which shows the new construction are~ or other request, by CERTIFIED MAIL, RETURN RECEIPT REQUESTED, to alJ owners of property (tax map with property numbers enclosed), vacant or improved, which abuts and any property which is across from any public or private street. Use the current owner name and addresses shown on the assessment rolls maintained by the Southold Town Assessors' Office, or Real Property Office at the County Center, Riverhead. If you know of another address for a neighbor, you may want to send the notice to that address as well. If any letter is returned to you undeliverable, you are requested to make other attempts to obtain a mailing address or to deliver the letter to the current owner, to the best of your ability, and to confirm how arrangements were made in either a written statement, or during the hearing, providing the returned letter to us as soon as possible; AND not later than May 23: Please either mail or deliver to our office your Affidavit of Mailing (form enclosed) with parcel numbers, names and addresses noted, along with the green/white receipts postmarked by the Post Office. When the green signature cards are returned to you later by the Post Office, please mail or deliver them to us before the scheduled hearing. If any envelope is returned "undeliverable", please advise this office as soon as possible. If any signature card is not returned, please advise the Board during the hearing and provide the card (,when available). These will be kept in the permanent record as proof of all Notices. 2) Not Later May 25st: Please make arrangements to place the enclosed Poster on a signboard such as cardboard, plywood or other material, posting it at the subject property seven (7) days (or more) prior to hearing. (it is the applicantJagents responsibility to maintain sign until Public Hearing) Securely place the sign on your property facing the street, not more than 10 feet from the front property line bordering the street. If you border more than one street or roadway, an extra sign is supplied for posting on both front yards. Please deliver or mail your Affidavit of Postin,q for receipt by our office before May 31,2011. If you are not able to meet the deadlines stated in this letter, please contact us promptly. Thank you for your cooperation. (PLEASE DISPLAY YOUR HOUSE NUMBER ALWAYS). Very truly yours, Zoning Appeals Board and Staff Encls. NOTICE OF HEARING The following application will be heard by the Southold Town Board of Appeals at Town Hall, 53095 Main Road, Southold: NAME: KOFINAS, G. & M. # 6473 SCTM #: 1000-110-7-18.2 VARIANCE: BULKHEAD SETBACK REQUEST: REBUILD PREEXISTING ACCY. BATH HOUSE WITH DECK DATE: THURS., JUNE 2, 2011 11:45 AM BOARD OF APPEALS-TOWN OF SOUTHOLD 765-1809 If you are in.terested in this. project, you may review the file(s) prior to the hearing dunng normal busIness days between 8 AM and 3 PM. ZONING 10251 STATE OF NEW YORK) ) SS: COUNTY OF SUFFOLK) Karen Kine of Mattituck, in said county, being duly sworn, says that she is Principal Clerk of THE SUFFOLK TIMES, a weekly newspaper, published at Mattituck, in the Town of Southold, County of Suffolk and State of New York, and that the Notice of which the annexed is a printed copy, has been regularly published in said Newspaper once each week for 1__ week(s), successively, commencing on the 19th day of May, 2011. Principal Clerk LEGAL NOTICE -- SOUTHOLD TOWN ZONING BOARD OF APPEALS THURSDAY ~UNE 2, 2011 PUBLIC HEARINGS NOTICE IS HEREBY GIVEN, pur- suant to Section 267 of the Town Law and Town Code Chapter 280 (Zoning),Town of Southo~d, the following public hear- ings will be held by the SOUTHOLD TOWN ZONING BOARD OF AP- PEALS at the Town Hail, 53095 Main Road, P.O. Box 1179, Southold, New York 119714}959, on THURSDAY 9'.30 AM - ANDREW GREENE ~087 - (adj. fi-om 6/30/10) Request for Variance fi-om Code Section 280-116(A) based on an apphcation for building permit and the Building Inspector's March 24, 2010, Notice of Disapproval concerning construction of an acces- sory in-ground swimming pooI at less than the code required setback from a bluff of 100 feet at; 30653 Route 48, Sworn to before me this (adj. to Long Island Sound) Peconic, NY. SCTM#1000-73-4-5. 10.'00 AM - GEORGE and MARY VAIL 06475 - Request for Variances from Code Article xxm Section 280- 124 and the Building Inspector's April 6, 2011 Notice of Disapproval based on an application for building permit to con- struct additions to an existing dwelhng at: 1) less than the code required front yard setback of 35 feet, 2) less than the code required rear yard setback of 35 feet, 3) lot coverage of more than the code re- quired 20%, 4) accessory structure in a location other than the code required rear yard; location of property: 50 Oak Avenue (Pine Avenue and Unnamed Street) Southdid, NY SCTM#1000-77- 2-7 10~0 AM . ROSE L. MILAZZO REVOCABLE TRUST 06471 - Request for Variances under Sections 280-122, 280-124 and 280-116B, based on the Building Inspector's February 9, 2011 Notice of Disapproval concerning an ap- plication for additions and aIteralions to an existing seasonal cottage, which pro- posed construction will be: 1) less than the code-reqdired minimum side yard setback of 10 feet; 2) less than the code required combined side yard setbacks of 25 feet; 3) less than the code required setback of 75 feet from the bulkhead; Iocatinn: 1165 Island View Lane (adj. to underwater lands) Greenport, NY SCTM#1000-57-2.20 10:45 AM . LIEB VINES, LLC. g6469 - Request for Variance from Art. /II, Code Section 280-13(4)(c) based on Building Inspector's March 18, 20ii,No- lice of Disapproval and an application for building permit concerning conver- sion of existing storage building into an office and winery tasting room at: less than the code required 100 foot setback from a major road at; 13050 Oregon Rd., Cutchogue, NY. SCTM#1000-83-3-2.1. IL00 AM. ALAN and PATRICIA NORDEN ~6474 - Request for Variance from Article XXIII Code Section 280- 122 and the Building Inspector's March 24, 2011 Notice of Disapproval based on an application for building permit to construct a YX12' second floor addition to a single fam~y; 1) pursuant to Walz (05039) such addition will constitute an increase in nonconformance, 2) front yard setback of less than the code re- qdired 35 feet; at: 2395 King Street Ori- ent, NY SCTM#1000-26-2-44 11:15 AM - GEORGE and JUDITH FLAIG $6477 . Applicant requests a Special Exception under Article III, Section 280-13B(13). The Applicant is the owner requesting authorization to establish an Accessory Apartment in an accessory stracture at; 27~0 Mill Road Mattituck, NY. SCTMgl000-100-5-1. 11'30 AM - BEE-lD~E DEVELOP. MENT CORP. #6476 - Request for Vari- ances under Sections 280-124 and 280, 116, based on the Building Inspector's March 21, 2011 Notice of Disapproval concerning an application for construc- tion of a new single famiIy dwelling at: 1) less than the code required front yard setback of 35 feet, 2) less than the code-required minimum of 75 feet from the bulkhead, at; 400 Old Cove Blvd. (Beverly Rd.) (adj. to Arshamomaque Pond aka Mill Creek) Southold, NY. SCTM#1000-52-2-14. 11'.45 AM. GEORGE D. and MA- 2011. J~LI~-STAIE OF NEW YORK O, 01 -VO63 0'5050- RIA KOFINAS g6473 - Request for Variance under Section 280-116, based llel~ in Suffolk Courtly on the Building Inspector's February 17, n Expires Felatuat¥ ~$, 2012 2011 Notice of Disapproval concerning an application to rebuild a preexisting accessory bath house with deck, which proposed construction will be: I) less than the code required setback of 75 feet from the bulkhead; location: 552 East Road (adj. to Cutchogue Harbor (Great Puconic Bay)) Cutchogue, NY IZ:45 PM - JANE WEILAND #6472 - Request for Variance under Section 280- 116, based on the Building Inspector's April 5, 2011, Amended April 12, 2011 Notice of DisapprovaI conce/-ning an ap- plication to construct an accessory deck and shed, which proposed construction will be: 1) less than the code required setback of 75 feet fi-om the bulkhead; location: 6485 Nassau Point Rd., (adj. to Little Peconic Bay) Cutcbogue, NY Carryover Hearings, continued from prior meetings and pending additional information: Adjourned from Public Hearing April 7,2011: 1:00 PM - JAMES and KATHLEEN BLACKLEY #6458 Adjourned from Public Hearing May 1'.30 PM - GEORGE and RUBY GAFFGA 06438 The Board of Appeals will hear all persons or their representatives, desir- ing to be heard at each bearing, and/or desiring to submit written statements before the conclusion of each hearing. Each hearing will not start earlier than des!gnatod above. Files are available for revxew during regular business hours and prior to the day of the hearing. If you have questions, please contact our office at, (631) 765-1809, or by email: Vlcki-Toth@Town. Southold.ny.~$, DatCt& May~'z011 ZONING BOARD OF APPEALS LESLIE FANES WEISMAN, CHAIR- PERSON BY: Vicld Toth 54375 Main Road (Office Eocation) 53095 Main Road (Mailing~lSPS) P.O. Box 1179 Southold, NY 11971-0959 TOWN OF SOUTHOLD ZONING BOARD OF APPEALS SOUTHOLD, NEW YORK In the Matter of the Application of AFFIDAVIT OF MAILINGS George D & Maria Kofinas (Name of,Anplicants) SCTM Parcel # 1000-i10-7-18;2 COUNTY OF SUFFOLK STATE OF NEW YORK I, Elin Corwin residingat 2555 Youngs Ave, Unit lC, Southold, NY 11971 New York, being duly sworn, deposes and says that: On the 18thday of May ,20 11, I personally mailed at the United States Post Office in ~ New York, by CERTIFIED MAIL, RETURN RECEIPT REQUESTED, a tree copy of the attached Legal Notice in Prepaid envelopes addressed to current property owners shown on the current assessment roll verified from the official records on file with the (t,~ssessors, or ( ) County Real Property Office for every property which abuts and is across a public or private street, or vehicular right-of-way of record, surrounding the applicant's property. (Signature) Swom to 1Rtfore me this 18thday cfi/ May A 2011 p l~ 'DONNA McGAHAN "~tary P~bl~) ' Notary Public, State of;N_e_w York --No. 01MC48514t~t~ Qualified in Suffolk County .... / ........ ~Comn;~s~ion. Expires Aug. 18, ~ ~c.J / ~ PLEASE nst on me Dace ozmls 3xmaawt or on a sneet of paper, the lot numbers to the owner names and addresses for which notices were mailed. Thank you. next rU Certified Fee Return Receipt Fee (Endomernent Required) 1:3 O~ Postmark Here $2.~0 ¢0 Total p~ge & Fees $ ~.~ ~1~11 a ...................... 1 ~ or~O~No. . ........................................... Postage Certified Fee Return Receipt Fee (Endorsement Required) Rest dcted Deliver/Fee (Endorsement Required) Total Postage & Fees ~'2,~0 Here $ $5.~ 05/18/2011 Mr. Ronald G..L..y. nn & Others [orPo'eoxNo' 6633 St. Partxn PLace lci~,mate, ztP+4 Orlando, FL 32812-3512 ................................................ qiiii .... r~- Postage $ ~./l~ ru ~ Tota~ Po~e & Fees ~5,~ ~S. Cynthia Edwards ~[o~PO~xNo. 668 Jackson R~ve~ Tpke $2.~0 Here $ $5,5~ 05/18/'2011 Ms. Melissa A. Spiro & Ms. Amanda J { r ~-~. ~',:~,:E g'i'~ g ............................................................. I /?L~.~.~..~?;.[ r. ............. ~..~.~..0... A..u.t.u_s...t... ~..a..n..e. ................ 1 Kofinas Mailing Lot No. 1000-110-7-18.4 1000-110-7-18.3 1000-110-7-19 1000-110-6-11.2 Owner Mr. Ronald G. Lynn & Others Ms. Cynthia Edwards Ms. Nancy P. Robinson & Others c/o Ms. Mary Ann E. Mears Ms. Melissa A. Spiro & Ms. Amanda J. Spiro Address 6633 St. Partin Place, Orlando, FL 32812-3512 668 Jackson River Tpke, Hot Springs, VA 24445 903 Poplar Hill Road, Baltimore, MD 21210 1010 August Lane, Greenpo~, NY 11944 · Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. · Print your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the mailpieca, or on the front if space permits, ~f YES, enter delivery acldmss below:. 1. Article Addressedto: Mr. Ronald G. Lynn & Others 6633 St. Partin Place Orlando, FL 32812-3512 D.'lsdallveyaddmssdlffemntfmmlt~mWg~ DYee I [] No ~Regtstemd [] Expreea Mall [] Retum Recaipt for Memhafldlae 4. Rest~lctdd Delivery? ~ Fee) [] Yea NticleNumber 7009 1680 0000 2736 4106 (Transfer ~ sen,',~e .~e/~ PS Form 3811, February 2004 Domestic Return Receipt · Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. · Print your name and address ou the reverse so that we can tatum the card to you. · Attach this card to the back of the mailpieca, or on the front if space permits. 1. Artic~ ~dressed to: Ms. Cynthia Edwards 668 JackSon River Tpke Hot Springs, VA 24445 ~__.~3etvdd by ( Printed Name) I C. Date o~ Delivery D. Isdaih~y~ddm~sdiffem~tfromlteml? [] Yes If YES. enter dalivmy address below:, r=l No [] Insured Mall [] C.O.D. 2. A~lcie Number PS Form 3811, February 2004 7009 1680 Domestic Retum Receipt 0000 2736 5868 · complete items 1,2, and 3. Also complete item 4 if Restricted Delivery is desired, · Print your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the mellpisoe, or on the front if space permits. 1. Article Addressed to: Ms. Nancy P. Robinson & Others c/o Ms. Mary Ann E. Mears 903 Poplar Hill Road Baltimore, MD 21210 PS Form 3811, February 2004 C. Date of Deliv~/y D. Isdallve~addmssdlffemntflomiteml? []Yes If YES. enter delivery address below: [] No 3. Sewloe lype [] Regl~aed [] Relum Recaipt fc~ Memhandlse [] Insured Mail [] C.O.D. 4. Restated Dainty? {EX~a r-~) 1:3 Yes 7009 1680 0000 2736 4144 Domestl~ Return Receipt TOWN OF SOUTHOLD ZONiNG BOARD OF APPEALS SOUTHOLD, NEW YORK In the Matter of the Application of AFFIDAVIT OF POSTiNG George D. & Maria Kofinas (Name of Applicants) Regarding Posting of Sign upon Applicant's Land Identified as SCTM Parcel #I000-110-7-18.2 COUNTY OF SUFFOLK) STATE OF NEW YORK) Jo~n Lake residing at 210 Glenwood Road, Cutchogue, NY 11935 New York, being duly sworn, depose and say that: On the 23rd day of May ,2011 , I personally placed the Town's Official Poster, with the date of hearing and nature of my application noted thereon, securely upon my property, located ten (10) feet or closer from the street or right-of- . way (driveway entrance) - facing the street or facing each stree[ or right-of-way entrance,* and that I hereby confirm that the Poster has remained in place for seven (7) days prior to the date of the subject hearing date, which hearing date was shown to be June 2, 2011 (Sighamre) 8w°r'JxT0 before me this ~'~ I~ayof /O~ ,201i ~. ~~ - DONNAMcGAHAN (Notary Public) Notary. Public, State of New York mo. 01MC4851459 Qualified In Suffolk County Commlselon Expires Aug. 18, ~ ~ c~/~ * near the entrance or driveway entrance of my property, as the area most visible to passerby. BOARD MEMBERS Leslie Kanes Weisman, Chairperson James Dinizio, Jn Gerard P. Goehringer George Homing Ken Schneider Southold Town Hall 53095 Main Road · P.O. Box 1179 Southold, NY 11971-0959 Office Location: Town Annex/First Floor, Capital One Bank 54375 Main Road (at Youngs Avenue) Southold, NY 11971 http://southoldtown.northfork.net ZONING BOARD OF APPEALS TOWN OF SOUTHOLD Tel. (631) 765-1809 · Fax (631) 765-9064 April 15,2011 Mark Terry, Principal Planner LWRP Coordinator Planning Board Office Town of Southold Town Hall Annex Southold, NY 11971 Re: ZBA File Ref. No. #6473 (Kofinas) APR 1 5 2011 Dear Mr. Terry: We have received an application to rebuild a pre-existing bath house with deck in Cutchogue. A copy of the Building Inspector's Notice of Disapproval under Chapter 280 (Zoning Code), and survey map, project description form, are attached for your reference. Your written evaluation with recommendations for this proposal, as required under the Code procedures of LWRP Section 268-5D is requested within 30 days of receipt of this letter. Thank you. Very truly yours, Leslie K. Weisman Chairperson Encls. BOARD MEMBERS Leslie Kanes Weisman, Chairperson James Dinizio, Jr. Gerard P. Goehringer George Homing Ken Schneider Southold Town Hall 53095 Main Road · P.O. Box 1179 Southold, NY 11971-0959 Office Location: Town Annex/First Floor, Capital One Bank 54375 Main Road (at Youngs Avenue) Southold, NY 11971 http://southoldtown.northfork, net ZONING BOARD OF APPEALS TOWN OF SOUTHOLD Tel. (631) 765-1809 · Fax (631) 765-9064 April15,2011 Mr. Thomas Isles, Director Suffolk County Department of Planning P.O. Box 6100 Hauppauge, NY 11788-0099 Dear Mr. Isles: Please find enclosed the following application with related documents for review pursuant to Article XIV of the Suffolk County Administrative Code: ZBA File #6473 Action Requested: Within 500 feet of: Owner/Applicant: Kofinas, G. & M. Rebuild pre-existing accessory bath house with deck ( ) State or County Road (X) Waterway (Bay, Sound, or Estuary) ( ) Boundary of Existing or Proposed County, State, Federal land. ( ) Boundary of Agricultural District ( ) Boundary of any Village or Town If any other information is needed, please do not hesitate to call us. Thank you. Very truly yours, Encls. Leslie K. Weisman ZBA Chairperson BOARD MEMBERS Leslie Kanes Weisman, Chairperson James Dinizio, Jr. Gerard P. Goehringer George Homing Ken Schneider http://southoldtown.northfork.net ZONING BOARD OF APPEALS TOWN OF SOUTHOLD Tel. (631) 765-1809 · Fax (631) 765-9064 Southold Town Hall 53095 Main Road · P.O. Box 1179 Southold, NY 11971-0959 Office Location: Town Annex/First Floor, Capital One Bank 54375 Main Road (at Youngs Avenue) Southotd, NY 11971 August8,2011 AbigailA. Wickham, Esq. P.O. Box 1424 Ma~ituck, NY 11952 Re: ZBA Appeal #6473 - Kofinas Dear Ms. Wickham: Enclosed is a copy of the Board's August 4, 2011 determination filed today with the Town Clerk regarding your application. Sincerel.y~. Vicki Toth Encl. Copy of Decision to: Town Clerk (original) Building Department NOTICE ~ COUNTY OF SUFFOLK (~) K~1T°'"~T°'"~ SOUTHOLD ,,~,.~,~, o. I~Real Property lox Service Agency ~ 2 / ~_ ,~.~..~=~ o~ ~ ~ ~ ~ ~r~ ~ 1000 SECTION NO