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HomeMy WebLinkAbout3295Southold Town Board of Appeals MAIN ROAD- STATE ROAD 25 SOUTHOLD, L.I., N.Y. 11c~'71 TELEPHONE (516) 765-1809 ACTION OF THE ZONING BOARD OF APPEALS Appeal No. 3295 Application Dated October TO: Anthony G. N0wachek, Esq. for FLEETS NECK PROPERTY 1984 as Attorney OWNERS ASSOCIATION and WILLIAM NICOL, Petitioners 49-05 Pequash Avenue Cutchogue, NY 11935 [Appellant(s)] At a Meeting of the Zoning Board of Appeals held on May 2, ]985, the above appeal was considered, and the action indicated below was taken on your [×] Request for Variance Due to Lack of Access to Property New York Town Law, Seq~ion 280-a, to cancel, revoke and ~ullify ~uilding perml~ [ ] ~eques~ zor Special Exception under the Zoning Ordinance Article , Section [ ] Request for Variance to the Zoning Ordinance Article , Section Request for Application of FLEET'S NECK PROPERTY OWNERS ASSOCIATION INC. and WILLIAM NICOL, Cutchogue, NY 7or a Variance Appealing New York Town Law, including Section 280-a to cancel, revoke and nullify the building permit issued for the erection of a dwelling upon premises known and referred to as 1000 East Road, Cutchogue, NY; Tax Map District 1000, Section 110, BLock 7, Lot 28 (now of Gustave J. Wade). This is an appeal by the Fleets Neck Property Owners' Association, Inc. (FNPOA) of the issuance of a building permit by the Building Inspector to Gustave J. Wade (Wade) to construct a dwelling on his property located east of East Road in the area known as Fleets Neck at Cutchogue and shown on the Suffolk County Tax Map as District lO00, Section 110, Block 7, Lot 28. The permit was issued on June 20, 1984 as permit No. 13244Z. The appeal (in letter form) was filed with the Board of Appeals on September 26, 1984. It is claimed by the Appellant that said permit was issued in violation of the provisions of Section 280-a of the Town Law and requests that the same be revoked and canceled. Hearings were held on January 10, 1985 and March 28, 1985 at which hearings the Appellant and Wade and their attorneys were given much lattitude to present their respective arguments and their versions of the factual background leading to this appeal. From all of the testimony presented and from a review of the records of the Board of Trustees, deeds and other recorded agreements, the Board finds that Wade is the owner of a parcel of land comprising approximately 15,000± sq. ft. (.347 acre) on the shore of Eugenes Creek (formerly an island) which is separated from the easterly termi- nus of East Road by land owned by the Board of Trustees (Trustees) of the Town of Southold; that Wade applied to the Trustees for a convey- ance or a grant of an easement across the Trustees' lands from the easterly terminus of East Road easterly approximately 75 feet to Wade's land. Such request was denied and Wade thereafter commenced an Article 78 proceeding against the Trustees seeking to reverse such determination. The Supreme Court remanded the matter to the Trustees directing that it prepare findings of fact and conclusions. On January 30, 1985, the Trustees complied with such direction and adhered to its original determination and denied the relief sought by Wade. DATED: May 2, 1985. Form ZB4 (rev. 12/81) ~THOL~BOARD Page 2 - Appeal No. 3295 Matter of FLEETS NECK PROPERTY OWNERS ASSOCIATION and WILLIAM NICOL Decision Rendered May 2, 1985 As previously stated, the basis of Appellant's appeal is noncompli- ance with Section 280-a of the Town Law. In a letter from the Building Inspector to this Board dated January 10, 1985, the Building Inspector stated that he issued the permit on the basis that the property is technically an island and that access thereto was by water. There is no question that Wade thereafter proceeded with construction work on the site gaining access thereto by constructing a roadway from the easterly terminus of East Road across land owned by the Trustees despite the fact that the use of Trustee land for such purpose has been denied by the Trustees. In this appeal, Appellants seek a determination that the building permit issued to Wade was issued in violation of Section 280-a of the Town Law and therefor invalid and void. At the hearing on this appeal, much testimony was given on the question of the revocation or attempted revocation of the permit,~and the validity of a stop work order issued by the Building Inspector. Since the appeal is limited to the validity of the issuance of the building permit, the Board need not pass upon such issues in this appeal. Subdivisions l, 2, and 3 of Section 280-a of the Town Law provide as follows: "Section 280-a. Permits for buildings not on improved streets. 1. No permit for the erection of any building shall be issued unless a street or highway giving access to such proposed structure has been duly placed on the official map or plan, or if there be no official map or plan, unless such street or highway is (a) an existing state, county or town highway, or (b) a street shown upon a plat approved by the planning board as provided in sections two hundred seventy-six and two hundred seventy-seven of this article, as in effect at the time such plat was approved, or (c) a street on a plat, duly filed and recorded in the office of the county clerk or register prior to the appointment of such planning board and the grant to such board of the power to approve plats. 2. Before such permit shall be issued such street or highway shal~ have been~suitaibly improved to the satisfaction of the town board or planning board, if empowered by the town board in accordance with standards and specifications approved by the town board, as adequate in respect to the public health, safety, and general welfare for the special circumstances of the particular street or highway. Alternatively, and in the discretion of such board, a performance bond sufficient to cover the full cost of such improvement as estimated by such board shall be furnished to the town by the owner. Such performance bond shall be issued by a bonding or surety company approved by the town board or by the owner with security acceptable to the town board and shall also be approved by such town board as to form, sufficiency and manner of execution. The term, manner of modification and method of enforcement of such bond shall be determined by the appropriate board in substantial conformity with section two hundred seventy-seven of this article. 3. Where the enforcement of the provisions of this section would entail practical difficulty or unnecessary hardship, or where the circumstances of the case do not require the Page 3 - Appeal No. 3295 Matter of FLEETS NECK PROPERTY OWNERS ASSOCIATION and WILLIAM NICOL Decision Rendered May 2, 1985 structure to be related to existing or proposed streets or highways, the applicant for such a permit may appeal from the decision of the administrative officer having charge of the issue of permits to the board or appeals or other similar board, in any town which has established a board having power to make variances or exceptions in zoning regulations, and the same provisions are hereby applied to such appeals and to such board as are provided in cases of appeals on zoning regulations. The board may in passing on such appeal make any reasonable exception and issue the permit subject to conditions that will protect any future street or highway layout. Any such decision shall be subject to review by certiorari order issued out of a special term of the supreme court in the same manner and pursuant to the same provisions as in appeals from the decisions of such board upon zoning regulations." The provisions of subdivision 1 of Section 280-a are clear. In essence, it provides that "No building permit for the erection of any building shall be issued unless a street or highway giving access to such proposed structure has been placed on the official map or plan, or...unless such street or highway is (a) an existing state, county or town highway, or (b) a street shown upon a plat approved by the planning board...or (c) a street on a plat duly filed and recorded in the office of the county clerk...prior to the appointment of such planning board .... The Town of Southold has no official map or plan. Therefore, the Building Inspector may not issue a permit under Section 280-a(1) of the Town Law, unless the street giving access to the proposed structure is: (a) an existing town highway, or (b) a street shown upon a plat approved by the planning board, or (c) a street on a plat filed prior to the appointment of the planning board. There is no evidence that the access from East Road to the proposed structure meets the requirements of (a), (b), or (c) of subdivision of Section 280-a of the Town Law. In fact, it is undisputed that ne street or highway giving access to the Wade premises is in exist- ence. The evidence is that the premises is separated from East Road by land of the Trustees, and that the Trustees have denied access across such land to the Wade premises. The provisions of Section 280-a of the Town Law have been held to be mandatory. (Mtr. Truesdale Owners' Assn. v. Collin 22 Misc. 2d 27) Now, therefore, on motion by Mr. Grigonis, seconded by Mr. Goehringer, BE IT RESOLVED, that it is the decision of this board that since the application for a building permit did not comply with the provisions of subdivision 1 of Section 280-a of the Town Law, the Building Inspector had no authority to issue a building permit, and the building permit issued by him to Wade on June 20, 1984, is hereby determined to be void. Subdivision 3 of Section 280-a of the Town Law provides for relief where the enforcement provisions of the section would entail practical difficulty or unnecessary hardship~ If the owner of the premises is aggrieved, he may apply to this board for a relief provided by Section 280-a(3) of the Town Law. Vote of the Board: Ayes: Messrs. Goehringer, Douglass and Sawicki. This resolution was adopted of a]l_t~he, members. 1 k DATE '~/~ HOUR / ~ ~' ~ '~ Clerk, Tm,,m cf e -_,, Doyen, Grigonis, by unanimous vote