HomeMy WebLinkAbout6509 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
hup://southoldtown.northfork.net
ZONING BOARD OF APPEALS
TOWN OF SOUTHOLD
Tel. (631) 765-1809 · Fax (631) 765-9064
RI CEIYED
4 1'52
JAN 2 3 2012
FINDINGS, DELIBERATIONS ANI) DETERMINATION ~.~. ~
MEETING OF JANUARY 19, 2012
$outhol ! Town Clerk
ZBA FILE: 6509
NAME OF APPLICANT: Taubin Family Trust, Amy Orr, Trustee
PROPERTY LOCATION: 625 Terry Lane (adj. to Southold Bay) Southold NY
SCTM#1000-65-1-23
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 II 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 September 9, 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 DETERMINATION: This application was referred for review under Chapter 268, Waterfront Consistency
review of the Town of Southold Town Code and the Local Waterfront Revitalization Program (LWRP) Policy
Standards. The LWRP Coordinator issued a recommendation dated October 31, 2011, based upon the
recommendation, as well as the records available to us, it is the Board's determination that the proposed action is
INCONSISTENT with the LWRP.
PROPERTY FACTS/DESCRIPTION: Subject property is improved with a one story framed cottage with attached
decks and an accessory framed shed. It has 100.00 feet of frontage on Terry Lane, 286.79 feet along the eastern
property line, 99.27 feet along Southold Bay and 283.54 feet on the western property line as shown on the survey
dated February 26, 2010 revision prepared by Nathan Taft Corwin, III, LS.
BASIS OF APPLICATION: Request for Variance from Article XXIII Code Section 280-123 and the Building
Inspector's August 16, 2011 Notice of Disapproval based on an application for building permit for as built non-
conforming building at; 1) a nonconforming building containing a nonconforming use shall not be enlarged,
reconstructed, structurally altered or moved, unless such building is changed to a conforming use, 2) less than the
code required side yard setback of 15 feet.
RELIEF REQUESTED: The applicant received a notice of disapproval dated August 16, 2011 stating the
following:
The "as built" construction in the R-40 Zone is not permitted pursuant to
Article XXIII Section 280-123 - "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"
Page 2 of 6- January 19, 2012
ZBA File#6509 - Taubin/Orr
CTM: 1000-65-1-23
Per Article XXIII Section 280-124, the required side yard setback for a
lot between 20,000 and 39,999 is 15'. The site plan indicates a setback of 7.4'.
While the applicant applied only for an area variance, based upon the information in the record this Board also
considered the applicant's appeal of the Building Department's determination that this structure was a
nonconforming building with a nonconforming use.
FINDINGS OF FACT/REASONS FOR BOARD ACTION:
The Zoning Board of Appeals held public hearings on this application on October 6, 2011 and November 3,2011,
at which time written and oral evidence were presented. Based upon all testimony, documentation, personal
inspection of the property, and other evidence, the Zoning Board finds the following facts to be true and relevant
and makes the following findings:
The 635 sq. ft. roofed structure with attached 1,050 sq. ft. of decking on this lot does not have a certificate
of occupancy issued by the Building Department. The applicant represented that the roofed structure was utilized
as a "seasonal cottage" when the family purchased the property in the 1970s. The applicant also acknowledged
that an application for pre-existing certificate of occupancy was submitted to the Building Department. The
Building Department did not issue a pre-existing certificate of occupancy because the applicant failed to provide
sufficient documentation with respect to the age of the structure and its eligibility for a pre-existing certificate of
occupancy.
Instead, the Building Department issued a Notice of Disapproval noting the "as-built" roofed structure and
decking constituted a nonconforming building with a non-conforming use. According to the Notice of
Disapproval, this roofed structure and decking were never acknowledged by the Town and are nonconforming
structures with respect to use (since the R-40 zone permits single family dwellings, but does not permit "seasonal
cottages" and the cottage would not qualify as a "dwelling" because it is under 850 sq. ft.) and with respect to
location (deck is located in side yard).
A. History of the property and the structure at issue
The applicant submitted certain information regarding the history of this structure to establish that it
existed prior to the enactment of the Town Zoning Code. At the request of the Board, the applicant submitted a
timeline with various photos, an affidavit and other documents which are discussed below.
A photo from the 1890's indicating that the roofed structure was a small bathhouse/boathouse
with no decking. Comparatively, the more recent photographs of the roofed structure and
decking submitted by the applicant clearly illustrate that there is virtually no similarity with the
structures in the 1890's photograph and the roofed structure and decking that are presently on
the site.
An affidavit of Herbert J. Adler, Jr. attesting the structure's existence as a "bungalow" on the
property that was rented out by the applicant's predecessor in title and that the "bungalow" was
on the Overton property after it was subdivided in 1972. The affidavit, however, does not attest
to the fact that the "bungalow" was located in the present location prior to zoning, nor does it
account for the modifications made to the "bungalow" after 1957.
A copy of the 1972 subdivision map, entitled "Minor Subdivision of Land of Ollie Overton"
(hereafter the "Overton Subdivision Map") indicating that the Overton property was subdivided
into five lots, one of which (lot #4) is presently owned by the applicant. The subdivision map
also illustrates that the roofed structure and some decking existed in 1972 and that the structures
were teetering the property line of what is now the Taubin/Orr property (lot #4) and the adjacent
property to southwest (lot #5).
The applicant has acknowledged that the "frame cottage" had been moved in 1977 so that it no
longer teetered the property line of lot #4 and lot # 5 on the Overton Subdivision Map and did
not receive a building permit to do so. Similarly, the applicant did not obtain a certificate of
occupancy after the relocation was completed.
Page 3 of 6- January 19, 2012
ZBA Fileg6509 - Taubin/Orr
CTM: 1000-65-1-23
The applicant also provided a written description of alterations and modifications made to the
roofed structure and decking after the cottage was moved in 1977. The applicant acknowledged
that these modifications were made without the benefit of a building permit.
The applicant also provided information regarding a variance it received in 1990 for a storage
shed built on the upper bank of the property (#3940). The variance considered by the Board at
that time was for the construction of an accessory building in the front yard where a mar yard
location was required. The decision did not address the legality of the roofed structure in any
substantive manner. The Board was unaware that the roofed structure did not have certificate of
occupancy or a pre-existing nonconforming certificate of occupancy for the roofed structure on
the property when the area variance for the shed was granted.
During the November 3, 2011 public hearing the applicant disclosed that for an unknown period of time
and until1958, the roofed structure was utilized as an office for the rental of "seasonal cottages" and was not
utilized as a "seasonal cottage"/"bungalow" itself. It appears that the use of this structure some time after 1958
was changed to a residential "seasonal cottage" use. Nevertheless, the applicant's predecessor failed to obtain a
building permit, certificate of occupancy or any other Town approval for said change of use. Based upon this
information, it is not clear what use could have been eligible for a pre-existing non-conforming status, as well as
what the structure looked like. It is also clear, and the applicant disclosed, that the structure was moved.
The historic information submitted by the applicant illustrates that there was a seasonally used structure
present in the 1890's that was substantially changed over time and moved in 1977 without having any building
permits or certificates of occupancy issued by the Town. For the reasons set forth in more detail below, this Board
has not been presented with sufficient information to establish that the structure in its original location or its present
location qualifies as a pre-existing nonconforming structure with a pre-existing nonconforming use.
B. Relocation and Retention of Pre-existing Nonconforming Status
The applicant requests that this Board retroactively acknowledge the legal status of this structure as a pre-
existing non-conformity, as opposed to considering it an "as-built" nonconforming building with a nonconforming
use under the present zoning code, as noted by the Building Department in its August 16, 201I Notice of
Disapproval. Based upon the information set forth in the record, this Board confirms the determination of the
Building Department and views this application as an "as-built" under the present code for the reasons set forth
below.
While it is certain from the facts in the record that there was a structure on the Overton property (prior to
its subdivision in 1972) the applicant failed to submit any evidence of what the structure looked like in April 1957
prior to the adoption of the Town Zoning Code. This Board can definitively conclude, based upon the information
in the record that a small roofed structure was on the property in 1890. However, it is obvious that there have been
numerous modifications, additions and alterations made to the structure present in 1890. This Board cannot
determine that the structure that is presently on the property is in any way related to the structure that was seen in
the photo submitted by the applicant. In fact, the applicant submitted no information whatsoever regarding what
happened to this structure between 1890 and April 1957. As such, this Board lacks any evidence in the record to
acknowledge that any pre-existing non-conforming structure existed on the Overton property as indicated on the
1972 Overton subdivision map.
Additionally, the applicant admitted that the roofed structure was utilized as an office in 1958, and
provided no information regarding the transition of the use of the property and what it was utilized for in April
1957. The only evidence provided by the Applicant was the 1890's picture of a group of structures that looked like
small bathhouses. Not one of these structures looks anything like the structure at issue in this appeal. As such, this
Board cannot determine what structure existed, and what use existed in April 1957, and therefore cannot
acknowledge that such structure and use qualified as a pre-existing nonconformity.
Further, any pre-existing nonconforming status of the structure that was in existence prior to 1977 (the year the
structure was relocated) was lost upon its relocation. This was confirmed in testimony of the Building Permit
Page 4 of 6 -January 19, 2012
ZBA File#6509 - Taubin/Orr
CTM: 1000-65-I-23
Examiner (Patricia Conklin) at the November 3,2011 public hearing, where a Board member questioned why the
Building Department could not issue a pre-existing certificate of occupancy:
MS. CONKL1N: "Because the parcel in question had a structure in part
as presented there, prior to ' 1957. That is the only thing to legalize the structure.
A structure that is there in a t~articular location on one particular lot before
April '57. Before we the Town got there. Before any government entity was
involved. (emphasis added).
See, November 3,2011 Public hearing transcript, p. 88, lines 3-10.
From this testimony, it is evident that the Building Department has consistently opined that a pre-existing
non-conforming use and a nonconforming structure must remain in its exact location to retain its pre-existing
nonconforming status. To find otherwise would not only depart from a long standing interpretation of the Town
Code, but would also permit any nonconforming building with a nonconforming use to relocate to any location,
including a location that is less conforming, and retain its pre-existing nonconforming status. That result can not be
approved by this Board, and is contrary to the core principles of zoning which are to eliminate nonconformities.
Since this Board concludes that this structure and use is not a pre-existing nonconformity, it has no
jurisdiction over the area variance request, and therefore will not address such request in this decision.
C. Building Permit and Certificate of Occupancy requirement.
While this Board has found that there is no basis to acknowledge a pre-existing nonconformity of this
roofed structure and decking in the location indicated on the Overton Subdivision Map, this Board will address the
applicant's remaining arguments. The applicant, based upon the presumption that the roofed structure and decking
were pre-existing nonconformities, argued that in 1977 (the date the structure was relocated) a building permit was
not required under the zoning code for the relocation of a building and therefore the structure could be relocated
and retain its purported pre-existing nonconforming status. The applicant provided the Board with Local Law No.
2 of 1983, which amended certain definitions in the Town Zoning Code.
As written in 1983 and prior to that time, a building permit was required when any structure was "erected,
reconstructed or restored, or structurally altered." The 1983 local law amendments added certain language to the
definitions of code as follows (underlined portion notes additions):
STRUCTURAL ALTERATION: Any change in the supporting members of a building, such as buildings,
columns [or] girders[.], footings, foundations or bearing walls.
ALTERATION: As applied to a building or structure, means a change or rearrangement in the structural
parts or in the existing facilities, or an enlargement, whether extending on a side or by increasing in height, or the
moving from one location or position to another.
According to the applicant, since this language was not in the Town Code at the time the roofed structure
and decking was moved, it did not require a building permit. The applicant provided no public hearing discourse
or other supporting documentation that confirms this interpretation of the code change. As is often the case with
legislation, it is similarly just as plausible that the amendments to the code simply codified the practice of the
Building Department and clarified the Zoning Code to eliminate any confusion.
Furthermore, the applicant overlooks that these two terms apply to changes within the "structural parts" or
"supporting members," and would not have applied to the litting and relocation of a structure in its entirety. This
was confirmed at the public hearing of November 3,2011 where the following was stated:
MEMBER HORNING: Regarding the permitting process, after 1957,
every structure needed a permit to build. Would you need a permit to
relocate a structure?
Page 5 of 6- January 19,2012
ZBA File#6509- Taubin/Orr
CTM: 1000-65-1-23
MS. CONKLIN: Yes. It's basically to ensure zoning is upheld. You
have to know where things are going in the Town. It's also for the
analysis for the structural integrity of the inspector. It's two-fold, zoning
and are you building something that is safe.
See, November 3,2011 Public hearing transcript, p. 90 lines 24-25 and p.
91, lines 1-10
The relocation of a structure would have required a building permit so that the Building Department could
ensure that the structure was relocated to a conforming location and to ensure that the relocated building was safe.
This is further confirmed by the requirement in § 100-144 (of the version of the Town Code applicable in 1976) for
obtaining a certificate of occupancy for the "occupancy and use of a building erected, constructed, restored,
structurally altered or moved, or any change in use of an existing building." Clearly, the I976 code required the
applicant's predecessor to obtain a certificate of occupancy for the relocation of this structure.
In addition to the relocation of the roofed structure requiring a building permit and certificate of
occupancy, all of the modifications and alterations of this roofed structure and decking made after 1957, without
question, would have required a building permit and certificate of occupancy. As suggested above, there is no
evidence in the record regarding alterations and modifications made to the roofed structure between 1957 and
1976. However, at the very least, the applicant verified that after the Orr/Taubin family purchased the property
and relocated the structure that an entranceway was constructed to attach the outhouse/bathroom to the roofed
structure without the benefit of a building permit.
Given the above, this Board determines that the applicant's predecessors were required to obtain a building
permit and certificate of occupancy for the relocation of the structures as well as any alterations and modifications
made after April 1957.
D. Town's Knowledge of the Structure
At several points throughout the hearing and in the documentation submitted, the applicant infers that the
Town somehow legalized this structure because it was aware of its existence and did not notify the applicant or its
predecessors that the structure was illegal. However, this Board reiterates that this structure and any modifications
made thereto were never given a certificate of occupancy, nor any building permits by the Town. While this Board
may have proceeded with and granted an area variance for an accessory structure in 1990, this was done so in error
and without knowledge of the illegal status of the structure and decking. It is also noted that this lot constitutes a
buildable lot under the Town Code and has sufficient area to construct a conforming residential structure in a more
suitable location.
RESOLUTION OF THE BOARD: In considering all of the above, motion was offered by Member Dinizio,
seconded by Member Homing, 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.
Page 6 of 6 - January 19, 2012
ZBA File#6509 - Taubin/Orr
CTM: 1000-65-1-23
The Board reserves the right to substitute a similar design that is de minimis in nature for an alteration that does not increase the degree of
nonconformity.
Vote of the Board: Ayes; Members Weisman (Chairperson), Goehringer, Schneider, Dinizio, Horning.
This Resolution was duly adopted (5-0).
Leslie Kanes Weisman, Chairperson
Approved for filin~//,t !Qv /2012