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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