HomeMy WebLinkAboutZBA-10/01/2015 Hearing
TOWN OF SOUTHOLD ZONING BOARD OF APPEALS
COUNTY OF SUFFOLK: STATE OF NEW YORK
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TOWN OF SOUTHOLD
ZONING BOARD OF APPEALS
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Southold Town Hall
Southold, New York
October 1, 2015
10:24 A.M.
Board Members Present:
LESLIE KANES WEISMAN - Chairperson/Member
ERIC DANTES – Member
GERARD GOEHRINGER – Member
GEORGE HORNING – Member
KENNETH SCHNEIDER – Member
VICKI TOTH – Board Assistant
STEPHEN KIELY – Assistant Town Attorney
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October 1, 2015 Regular Meeting
INDEX OF HEARINGS
Hearing Page
Raymond F. Nine Trust and 13400 Main Road Corp. #6888 3 - 9
Raymond Norton and Deborah Cutler #6886 10 - 12
William MacGregor #6887 13 - 14
Mattituck 2012, LLC/East End Tick and Mosquito #6885 15 - 19
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October 1, 2015 Regular Meeting
HEARING # 6888 - RAYMOND R. NINE TRUST and 13400 MAIN ROAD CORP.
CHAIRPERSON WEISMAN : The first hearing before the Board is for Raymond F. Nine Trust and
13400 Main Rd. Corp. # 6888. This is a request for variance under Article IV Section 280-18 and
the Building Inspector’s July 27, 2015 Notice of Disapproval based on an application for building
permit for a lot line change at: Proposed SCTM#1000-114-11-22.2 is 1) less than the code
required minimum lot size of 40,000 sq. ft., located at 855 New Suffolk Avenue and 13400 Main
Rd. (aka NYS Route 25) in New Suffolk. Is there someone here to represent this application?
KAREN HOEG : Good morning Karen Hoeg from Twomey, Latham, Shea here on behalf of 13400
Main Rd. and Gail Wickham is here on behalf of the Ray Nine Trust. Mr. Nine and the Nine
family members are also present. I received all the certified mailings back with the exception of
one and that was for lot 23. I had re-mailed it to a different post office address but I haven’t
gotten anything back yet on that. The applicants are in contract where by 13400 Main Rd. is
purchasing 9,258 sq. ft. of the Nine property in order to expand its parking area in the rear of its
existing building. As a result of the lot line change the Nine lot will decrease to 38,989 sq. ft.
The Nine lot is in a split zone R40 and HB and the area being sold is in the HB zone. 13400 Main
Rd. is in an HB zone as well. The issue before the Board is to request for the area variance as lot
22.2 will become 1,011 sq. ft. under the required 40,000 sq. ft. required under the code. There
would be no adverse impact to the community in fact we received a letter in support from Tom
McCarthy of McCarthy Management and I personally spoke with Michael Herbert of
Community Rentals who expressed his support on the application. The requested variance is
not substantial and there’s no other feasible method for the applicant’s to pursue. There’s no
change in the amount of traffic or noise levels. The Planning Board in its memo of September
15 stated that they also support the application and that the transfer of lands is consistent with
the comprehensive plan and no new residential building lots will be created. I wanted to clarify
for the Board and I’m sure Ms. Wickham will also address this that Mr. Nine intends to continue
to use the remaining HB property for his existing business. That was noted in our application.
It’s a pre-existing non-conforming use permitted by the Town. We have submitted
documentation to that effect to the Building Department and with the application confirming
Town approval of the use. Based upon these factors we respectfully request that the variance
be granted so that we can move forward with the site plan and lot line modification
applications with the Planning Board.
CHAIRPERSON WEISMAN : As you say the Planning Board submitted comments to the ZBA
dated September 15 confirming their support of the transfer of that land for purposes of
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October 1, 2015 Regular Meeting
parking and it supports the comprehensive plan. There is however a question that they have
and I’m sure Ms. Wickham will address shortly that once that lot is reduced in size there would
appear that it would be creating a non-conforming lot area, non-conforming with the bulk
schedule with what’s left and given I’m just reading into the record what the comments from
Planning are given that there’s also a single family home on the property and the total parcel
area will be less than 40,000 sq. ft. it is unclear whether the applicants intent for this
commercial use to continue after the lot line modification and if so whether it would require a
variance. It’s clear from the letter we just received from the applicant’s attorney that there is a
desire to continue that use on the property so the question then before the Board is in order to
do so we understand that it has a C.O. and that it’s existed for a very long time without adverse
impact will it require a variance in addition to once this lot line change takes place will a
variance be required. If so there will need to be an amended Notice of Disapproval and then we
can address that variance relief because it is not called out at this point.
KAREN HOEG : Right we had submitted the information to Mike Verity in the Building
Department when we submitted the Notice of Disapproval and we gave him the supporting
documentation and it wasn’t addressed in the Notice of Disapproval. Just one comment that I
have on the Planning Board memo on number three the lot is incorrectly noted. It’s not 9.6
that’s improved with a single family residence its lot 22.2.
CHAIRPERSON WEISMAN : So cross out 9.6 and put 22.2?
KAREN HOEG : Correct.
CHAIRPERSON WEISMAN : Thank you for the correction. Any questions from the Board about
the
MEMBER DANTES : I do. I did a brief site inspection this morning and what’s there now? Those
bins that have all the gravel in them, is that the area we’re talking about?
KAREN HOEG : The area if you can if you were at the site now you can see that there’s currently
a fence there and then there’s that gravel area in the back that’s the portion of the property
that is being sold.
MEMBER DANTES : Okay that was the question I had.
KAREN HOEG : I think there were some photographs submitted with the application which can
give you a sense and also what’s there.
CHAIRPERSON WEISMAN : Any questions about the lot line change from anybody on the Board?
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October 1, 2015 Regular Meeting
MEMBER SCHNEIDER : Yea I just have a quick question on that. Did you investigate the idea of
possibly maintaining 40,000 sq. ft. for the parcel with a dwelling 22.2?
KAREN HOEG : So that we wouldn’t need a variance?
MEMBER SCHNEIDER : Yea so you wouldn’t need the variance.
KAREN HOEG : Yes we had and based on the way that the lots are configured this was the best
solution in terms of splitting the lots where they are. We can get a sense from that even when
you look at the property and the tax map the way its split up and they’re adjoining parcels as
well that’s why this number was arrived at.
MEMBER SCHNEIDER : So it’s the configuration of the lots that is the advantage of this
particular lot line change?
KAREN HOEG : Correct.
MEMBER SCHNEIDER : The placement of it.
KAREN HOEG : Right the placement of the lot line.
CHAIRPERSON WEISMAN : Well I have a schematic that’s showing that.
KAREN HOEG : Right it’s a little
CHAIRPERSON WEISMAN : I figured it out this is the part of this one lot and this is another lot
okay that’s where the house is and it’s L-shaped. This is actually not part of that one lot.
MEMBER SCHNEIDER : Oh okay.
CHAIRPERSON WEISMAN : This is a different this is
MEMBER SCHNEIDER : Different zone.
CHAIRPERSON WEISMAN : They’re both HB and this is RO
MEMBER SCHNEIDER : But they happen to be connected.
CHAIRPERSON WEISMAN : But they’re all connected. He owns all that property so you have that
part off and then will be an L shaped lot this zoned HB it’s actually a split zone parcel.
KAREN HOEG : Correct.
CHAIRPERSON WEISMAN : Now the only real question that I have here I see nothing but an
advantageous situation relative to the lot line change section 280-121A is the section of the
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October 1, 2015 Regular Meeting
code that makes reference to what happens when there’s a pre-existing non-conforming use
that is altered. Now the use itself is not altered but the size on which this use and size on the
parcel on which this use is taking place is being reduced so I think that’s the real question that
we need to address in this application. In order to clarify whether the applicant can continue to
operate the gravel yard as of right based on the pre-existing C.O. or in fact they will need will
they need an area variance in order to do that? The only question that I have about this and I
don’t have any conclusion in mind I just simply think we need to look into that. Do you have the
code up there Stephen?
A.T.A. KIELY : Yes.
CHAIRPERSON WEISMAN : Can you look up 121, 281-21A and maybe read aloud what it says.
That way perhaps counsel can address it.
A.T.A. KIELY : So non-conforming uses of open land existing on the effective date of this chapter
or authorized by a building permit regardless of change of title possession or occupancy or right
thereof may be continued indefinitely except that such building or use shall not be enlarged,
altered, extended, reconstructed or restored or placed on a different portion of the lot or
parcel of land occupied by such use on the effective date of this chapter nor shall any external
evidence of such use be increased by any means whatsoever. So to me the key work is altered.
KAREN HOEG : But I believe that that code provision I’ll let Gail address but the code provision
relates to the use it doesn’t talk about its altering the use not altering the square footage. It
pertains to the use cause even if you talk about if you go towards the last sentence of
subsection A, it talks about you know any external evidence of such use being increased. We’re
not increasing the use. We’re not changing the use except well we’re changing it we’re
decreasing the amount of area that the use is being conducted but the use doesn’t change.
A.T.A. KIELY : Well it’s saying it shall not be enlarged which isn’t right it’s being reduced, altered
so it comes down to the definition of altered. Well they’re not reduction equals altered that’s
the part.
KAREN HOEG : I don’t read it that way I’m sure Ms. Wickham will address that as well.
CHAIRPERSON WEISMAN : Yea I’m just reading the comment we just go these comments of
course in writing from Ms. Wickham and so we’re trying to kind of read them while we’re
talking at the same time. I think some of that’s addressed in her letter already but maybe you
want to enter it into the record Gail.
GAIL WICKHAM : Good morning Abigail Wickham representing the seller of the portion of the
property the Ray Nine Trust and as you can see Mr. Nine and his family are here. Mr. Nine has
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October 1, 2015 Regular Meeting
conferred with his family and they do intend to continue the business use of the property. I
apologize for any previous confusion. When he met with the member of the ZBA I believe it was
Ms. Weisman I’m not sure he had had a rough couple of weeks and was feeling particularly
discouraged and he has had a lot of discussion with his family. He intends to keep the business
active with the assistance of his family on the remaining portion of the property. The nature of
Mr. Nine’s business is such that its size and activity is directly related to the area on which it can
be conducted because it is the storage of sand and gravel related materials and so with a
smaller yard area the business operation will necessarily be smaller. No other change is going to
occur other than a reduction in the size of the area on which the business is conducted. The use
is not changing. The word alter I think refers to the type of use as Ms. Hoeg indicated. Section
280-121 in the related sections on non-conforming uses are clearly designed under the code to
stop the spread or continuation or increase of a non-conforming use that’s been existing for a
long time but for some triggering factor needs to stop and be conforming. That doesn’t happen
when you reduce the size of a use. It is specifically said in the preamble to that section. The
purpose of this article is “to reduce or minimize the impacts of uses”. So if you discontinue a
non-conforming use for a long time then you should be able to you know bring it back because
it would be incompatible with the code. If you want to increase the size of your use it would be
incompatible because it’s non-conforming. Even notwithstanding that theory article 280-123
specifically allows you to increase by at least 50% and then in certain circumstances 30%, the
size of a non-conforming non-residential building just to protect business uses. So if you use
that analogy on buildings there’s I think clearly the intent of this article was to avoid the
expansion or the alteration in a way that would re-intensify the use not to cut it back by in this
case almost 50%. So that’s my point on that particular thing and in terms of the Planning Boards
memo I think that that is somewhat confusing because you are not creating a non-conforming
lot area. You are creating a about 11,000 square foot lot are where it used to be almost twenty
but you’re not creating a non-conforming lot area because the lot the use has already been
existing. It’s already non-conforming. You’re just reducing the size of it and the business and
the residential uses co-existing on that property are already non-conforming but with specific
town approval based on Howard Terry’s prior review and issuance of the C.O. and the letter
that you have in your file. So if you would like me to address further I could but I don’t see that
this should be a concern under the code in terms of his being allowed to continue this. I do
want to answer again quickly Mr. Schneider’s comment about why we didn’t go the 40,000 sq.
ft. lot area and avoid the variance. That was as Ms. Hoeg said a configuration we wanted to
start on the exact corner on the that would be the south east corner of the parcel being
conveyed and go across rather than continuing that L-shaped configuration and it also was very
important to the buyer to have that configuration of the lot so that they would have enough
parking to get into their augmented parcel and anybody in Mattituck who is putting in more
parking is creating a definite community benefit so to cut it back to less than the 9,800 sq. ft.
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October 1, 2015 Regular Meeting
would reduce the Reeve building parking and we didn’t they wouldn’t be able to conform to
their plan. I don’t know if you have any other questions but that’s the gist.
CHAIRPERSON WEISMAN : No I just simply wanted to provide an opportunity for the record to
reflect responses to the Planning Board’s query.
GAIL WICKHAM : I don’t think the word altered pertains to this situation in the context of how
that code provision was written. Thank you.
CHAIRPERSON WEISMAN : George.
MEMBER HORNING : Yea I have one question. Looking at the zone map would you concur that
what the applicant wants to do is to let me ask the whole property is not zoned HB is that
correct?
GAIL WICKHAM : The entire Nine property?
MEMBER HORNING : Yes.
GAIL WICKHAM : No it’s not. That is correct. Its split and the map that you have in front of you
it’s a little hard to read but there’s a dotted line that shows the zoning.
MEMBER HORNING : So do they want to transfer what’s left in the HB to the regular HB zone
what’s left of the property or?
CHAIRPERSON WEISMAN : This will be transferred, this is still HB. That will be left that’s where
the business is being proposed with a slight overlap onto the residential.
MEMBER HORNING : Where is the HB line then?
CHAIRPERSON WEISMAN : I believe some of the storage of the gravel will be
GAIL WICKHAM : The northwest jog of the remaining Nine piece is going to be is going to
remain HB.
MEMBER HORNING : Where is the line right here?
CHAIRPERSON WEISMAN : Yea. That’s the one that’s the HB.
MEMBER HORNING : Got it.
GAIL WICKHAM : It’s the parcel that says framed garage and it’s where the actual box that says
tax lot 22.2 is.
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October 1, 2015 Regular Meeting
MEMBER HORNING : And to conduct a business he’s going to use the residential let’s say
whatever the driveway is there.
GAIL WICKHAM : The driveway will continue yes.
MEMBER HORNING : And it’s large enough?
GAIL WICKHAM : Yes.
MEMBER HORNING : And the idea is to just bring the material there gravel and sand store it for
a while sort it out maybe.
GAIL WICKHAM : He’s going to continue what he’s been doing which is to bring in and deposit,
sort and operate a sand and gravel contracting business there and yes he is the driveway is very
navigable. He has a big truck comes in and out no problem with a trailer with equipment on it.
CHAIRPERSON WEISMAN : Anything from anybody else?
MEMBER GOEHRINGER : No.
CHAIRPERSON WEISMAN : Is there anyone else in the audience who wishes to address this
application? Hearing no further questions or comments I’ll make a motion to close the hearing
reserve decision to later date.
MEMBER GOEHRINGER : Second.
CHAIRPERSON WEISMAN : All in favor?
MEMBER HORNING : Aye.
MEMBER GOEHRINGER : Aye.
MEMBER SCHNEIDER : Aye.
MEMBER DANTES : Aye.
CHAIRPERSON WEISMAN : Aye.
(See Minutes for Resolution)
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October 1, 2015 Regular Meeting
HEARING # 6886 – RAYMOND NORTON and DEBORAH CUTLER
CHAIRPERSON WEISMAN : The next application before the Board is for Raymond Norton and
Deborah Cutler # 6886. This is a request for variance from Article XXIII Section 280-124 and
Article III Section 280-15 and the Building Inspector’s May 12, 2015 amended September 4,
2015 Notice of Disapproval based on an application for building permit to reconstruct an
existing deck on existing single family dwelling at 1) less than the code required rear yard
setback of 35 feet, 2) accessory shed in location other than code required rear yard located at
1345 Sound Rd. in Greenport. Is there somebody here to represent?
RAY NORTON : The name is Ray Norton. I’m the homeowner/applicant I guess you wanna call
me.
CHAIRPERSON WEISMAN : All of us have inspected the property so we’re familiar with what it
looks like. The notice described this as reconstructed an existing deck. It looks like it’s already
been reconstructed it’s brand new.
RAY NORTON : Yes.
CHAIRPERSON WEISMAN : I was going to say that there’s no way that’s an old deck. Okay so
you’ve done it. So we’re looking at a this is built originally about 43 years ago you’re saying?
RAY NORTON : Yea 1971.
CHAIRPERSON WEISMAN : And this is an existing deck with a 23.7 foot rear yard setback where
the code requires 35 feet. The as built shed is partially in the side yard. The code requires a rear
yard. It’s 4 feet from the property line. You’re proposing to move it to a conforming 5 foot?
RAY NORTON : Right I can move it up 5 feet yes.
CHAIRPERSON WEISMAN : Okay well let’s see what the Board has to say. I have to say that you
can’t see that not only can you not see the deck you can’t see the shed either particularly from
either a little bit of the height of it from your neighbor’s property but you don’t really see it
from the road and for all extensive purposes it is in the maybe technically partially in the side
yard but it really is in your back yard. Let’s see Eric questions?
MEMBER DANTES : Looks like there’s a tree near the shed.
RAY NORTON : Yes right on the corner of the shed there.
MEMBER DANTES : That’s going to prevent you from moving it to a conforming location?
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October 1, 2015 Regular Meeting
RAY NORTON : It will prevent me from moving it back that two or three feet to get it in the back
yard yes.
MEMBER DANTES : Okay and the deck pre-existing? Those were my only two thoughts.
CHAIRPERSON WEISMAN : Ken anything?
MEMBER SCHNEIDER : Just a comment that the subject deck is causing the non-conformity to
the shed and (inaudible) deck. That’s it.
CHAIRPERSON WEISMAN : Gerry?
MEMBER GOEHRINGER : No nothing at this time. I’ve inspected it.
CHAIRPERSON WEISMAN : George?
MEMBER HORNING : Yea I was I mean the notice doesn’t carry any information about the non-
conforming side yard or rear yard five foot setback so I mean why would you propose to move
it to conform?
RAY NORTON : Yes to conform with the five feet. There is no problem with my neighbor it’s just
that you know five feet it should be five feet off that side property line.
CHAIRPERSON WEISMAN : Frankly I don’t have any problem of where it is. I mean if it’s got a
foundation I mean it’s not there’s no adverse impact. It wasn’t cited in the Notice of
Disapproval George is quite right. I think it’s okay where it is frankly.
RAY NORTON : Oh thank you.
CHAIRPERSON WIESMAN : I don’t see what advantage is to be made by moving it a foot at
considerable expense and no ultimate change in anything. If you could actually move it totally
into a rear yard okay then maybe that makes some sense but I think it’s just a technicality
frankly the deck being where it is.
MEMBER HORNING : You do have a rear yard area where you could move it correct?
RAY NORTON : Not with the tree in the way.
MEMBER HORNING : Well I mean away from the tree.
RAY NORTON : If I was to move it about a foot and a half closer to the property line then I can
move it back you know keep it in that same general location. Other places in the yard it would
have the same problem.
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October 1, 2015 Regular Meeting
MEMBER HORNING : In the but that would be in your rear yard in the vicinity of the deck
somewhere in there isn’t that your rear yard?
MEMBER GOEHRINGER : He’s saying in back of the deck.
MEMBER HORNING : Or not in back of it but next to it or something.
CHAIRPERSON WEISMAN : You can pick it up and dramatically change its location at
considerable expense and probably impacting your view and your sense of open space in the
rear yard and staring at the shed.
RAY NORTON : It would be more obstructive to my rear neighbor cause now it’s you know it
would be sticking out more.
MEMBER HORNING : When was the deck rebuilt?
RAY NORTON : Last summer.
CHAIRPERSON WEISMAN : Anything else from anybody?
MEMBER GOEHRINGER : I couldn’t agree more I don’t think it really has to be moved.
CHAIRPERSON WEISMAN : Is there anyone in the audience who wishes to address this
application? Hearing no further questions or comments I make a motion to close the hearing
reserve decision to later date.
MEMBER GOEHRINGER : Second.
CHAIRPERSON WEISMAN : All in favor?
MEMBER HORNING: Aye.
MEMBER GOEHRINGER : Aye.
MEMBER SCHNEIDER : Aye.
MEMBER DANTES : Aye.
CHAIRPERSON WEISMAN : Aye.
(See Minutes for Resolution)
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October 1, 2015 Regular Meeting
HEARING # 6887 – WILLIAM MacGREGOR
CHAIRPERSON WEISMAN : The next application before the Board is for William MacGregor #
6887. This is a request for variance from Article XXIII Section 280-124 and the Building
Inspector’s July 30, 2015 Notice of Disapproval based on an application for building permit to
construct additions and alterations to an existing single family dwelling at 1) less than the code
required minimum side yard setback of 15 feet, 2) less than the code required total combined
side yard of 35 feet located at 1120 Broadwaters Rd (adj. to Broadwaters Cove) in Cutchogue. Is
there someone here to represent the application? Good morning would you please state your
name for the record.
PETER STOUTENBERG : Peter Stoutenberg Environmental East and I’m here to answer any
questions that you might have or supplying any paperwork that might be missing.
CHAIRPERSON WEISMAN : Well let’s see what we really have before us. This is a proposed
addition and alteration with a single side yard setback at 5.5 feet where the code requires a
minimum of 15 and a combined side yard setback of 32.5 feet where the code requires 35 feet.
We have a recommendation from the LWRP coordinator indicating that this is a proposal is
consistent with the LWRP. You are proposing to maintain the existing natural buffer. The
addition itself is 5 foot 8 inches by 18 feet 3 inches is that correct?
PETER STOUTENBERG : It actually fits between the deck and the house.
CHAIRPERSON WEISMAN : Right so it’s an infill it’s essentially an infill and you are maintaining
the existing 5.5 foot side yard.
PETER STOUTENBERG : Right.
CHAIRPERSON WEISMAN : Okay let’s see what questions, Gerry do you have any questions?
MEMBER GOEHRINGER : In effect on when you look at the project you’re basically reinforcing
the area that needs to be added on to for the master bedroom. Is that correct?
PETER STOUTENBERG : Correct.
MEMBER GOEHRINGER : Okay so when you look at the total deck area you’re really not
touching the deck you’re just infilling that area.
PETER STOUTENBERG : Right.
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October 1, 2015 Regular Meeting
MEMBER GOEHRINGER : that’s going to protrude to the deck for the master bedroom.
PETER STOUTENBERG : Correct.
MEMBER GOEHRINGER : I think that’s basically the encroachments that exist I’ve known this
house for years have existed for many, many, many years which are basically roof
encroachments on the outside it doesn’t affect this project in any way getting equipment in
there and anything of that nature does it?
PETER STOUTENBERG : No it’s all small hand gun stuff. There’s not going to be any heavy
equipment.
CHAIRPERSON WEISMAN : Ken anything?
MEMBER SCHNEIDER : No just comment that the existing non-conforming side yards will be
maintained.
PETER STOUTENBER : Right.
CHAIRPERSON WEISMAN : Eric?
MEMBER DANTES : No not at this time.
CHAIRPERSON WEISMAN : George?
MEMBER HORNING : No, no questions.
CHAIRPERSON WEISMAN : Anyone else in the audience wishing to address this application?
Hearing no further questions or comments I make a motion to close the hearing reserve
decision to later date.
MEMBER GOEHRINGER : Second.
CHAIRPERSON WEISMAN : All in favor?
MEMBER HORNING : Aye.
MEMBER GOEHRINGER : Aye.
MEMBER SCHNEIDER : Aye.
MEMBER DANTES : Aye.
CHAIRPERSON WEISMAN : Aye.
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October 1, 2015 Regular Meeting
(See Minutes for Resolution)
HEARING # 6885 – MATTITUCK 2012, LLC/EAST END TICK AND MOSQUITO
CHAIRPERSON WEISMAN : The next application before the Board is for Mattituck 2012 LLC/East
End Tick an Mosquito # 6885. This a Planning Board Town of Southold request for Town Wide
Interpretation under code section 280-146D(1) of the Town Code as to whether the Malon
Decision which is # 5383 applies to the LB Zone District as well as the General Business (B) Zone
District. Is there someone here to represent the Planning Board? Just state your name for the
record please.
MARK TERRY : Hi I’m Mark Terry principal planner representing the Planning Board of the Town
of Southold. So the question as the chairwoman stated is the Planning Board is seeking an
interpretation on where the Malon decision applies and to which district zoning district in the
Malon decision which applies throughout the town.
CHAIRPERSON WEISMAN : Let me do this for the record I want to enter some I want to enter
some information here. This is pertinent to the Malon decision. I’m going to quote from that
decision a little bit just so we have it into our public record this actually the request originally
on Malon, Stanley Malon who was an applicant before the Board. This was application # 5383
which includes a written application dated December 4, 2003 for an interpretation of the
zoning code Article X Section 100-102 bulk area and parking schedule to determine that
multiple occupancies do not require an additional 30,000 sq. ft. of land area per permitted use
in the B General Business Zone District and carry on know that section 100-102 this is board
resolution does not require an additional 30,000 sq. ft. of land area per permitted use in the B
General Business Zone District because section 100-102 clearly states that no building or part
there of shall be erected in the B District unless the same conforms to the bulk schedule parking
and loading schedules incorporated into this chapter by reference with the same force and
effect as if such regulations were set forth herein in full. Since the bulk schedule and parking
and loading schedules for the General Business B Zone District provide for a minimum
requirement of 30,000 sq. ft. of land area this requirement is interpreted to apply to each
building rather than to each use or occupancy within the building area. However, we should
note here that the interpretation says is to determine that multiple occupancies do not require
an additional 30,000 sq. ft. of land area per permitted use in the B General Business Zone
District. Every single reference in the request and the interpretation refers to the B General
Zone District. There is no reference in Malon to any other Zone District other than the B
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October 1, 2015 Regular Meeting
General Business Zone District. Now, this request for an interpretation was precipitated by an
application to the Planning Board is that correct?
MARK TERRY : That’s correct.
CHAIRPERSON WEISMAN : And what is that application?
MARK TERRY : That is East End Tick.
CHAIRPERSON WEISMAN : What did they want to do what are they proposing to do there?
BRIAN CUMMINGS : Brian Cummings Planning Department. The proposal for East End Tick and
Mosquito was to construct a contractor’s yard and an office in a pre-existing building in
addition to the existing dwelling on a lot approximately just over 10,000 sq. ft.
CHAIRPERSON WEISMAN : This is in the LB Zone?
BRIAN CUMMINGS : Yes.
CHAIRPERSON WEISMAN : Can you tell me what the intent of the LB Zone is? Do you know off
hand or we can read it from the code book.
BRIAN CUMMINGS : Not off hand no.
CHAIRPERSON WEISMAN : Eric can you under definitions LB Zone.
MEMBER DANTES : The purpose of the limited business LB district is to provide an opportunity
to accommodate limited business activity along highway corridors but in areas outside the
hamlet’s central business areas, that is consistent with the rural and historic character of
surrounding areas and uses. Emphasis will be placed on review of design features so that
existing and future uses will not detract from surrounding uses. The additional uses must
generate low amounts of traffic and be designed to protect the residential and rural character
of the area.
CHAIRPERSON WEISMAN : Now could you please read what the B Zone Districts states.
MEMBER DANTES : Yes. 280-47 Purpose. The purpose of the General Business (B) District is to
provide for retail and wholesale commercial development and limited office and industrial
development outside of the hamlet central business areas generally along major highways. It is
designed to accommodate uses that benefit from large numbers of motorists that need fairly
large parcels of land and that may involve characteristics such as heavy trucking and noise.
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October 1, 2015 Regular Meeting
CHAIRPERSON WEISMAN : Okay thank you. Just want to make a distinction. In this particular
application you just mentioned Brian a contractor’s yard, an office and a dwelling is that
correct?
BRIAN CUMMINGS : The office and the contractors are kind of one and the same. It’s for the
Tick and Mosquito business so they will have trucks on site and that would be their office on
the inside.
CHAIRPERSON WEISMAN : Okay so are you defining this as an office or are you defining this as a
contractor’s yard? See don’t really have an application yet. I mean we will at some point have
an application and I think the question that we can separate Malon from East End Tick as an
application for variance relief so there are certain permitted uses in the LB Zone right and an
office is one of them home occupations, offices and so on LB Zone is essentially a transition
zone. That would be a permitted use. A dwelling would be a permitted use. A contractor’s yard
is not a permitted use unless you get special exception permission from a permit from the ZBA.
So there are some issues we need to flush out with regard to how that particular application
should become before the ZBA. So we can make the distinction that this application the
Planning Board is what precipitated your request to see whether Malon would apply to this
application for the number of uses on this small parcel. The parcel itself is 10,890 sq. ft. so it is a
non-conforming lot it’s like a quarter of an acre and the question is does the office/contractor’s
yard constitute a second principle use which would then require 80,000 sq. ft. per use or
160,000 sq. ft. total in the LB Zone. If it does that’s a 93% variance so if you could maybe
address a little bit of that maybe we’d understand a bit more about how to proceed with the
actual East End Tick application.
MARK TERRY : Okay but that should be separate from the interpretation. The interpretation the
Planning Board is seeking
CHAIRPERSON WEISMAN : It is separate.
MARK TERRY : applies to many different actions before the Board and I guess one of the
confusing issues or just to clarify the Malon decision as rendered interpreted the 30,000 sq. ft.
to apply to each building rather than use. So when we start talking about uses that’s sort of a
different box. Now that interpretation and just to point this out as a clarification relies heavily
on the bulk schedule correct? The bulk schedule if you are able to pull that up for the B General
Business District there is a qualifier under the word district that says minimum requirements for
business office industrial or other non-residential use and then it goes into the minimum lot
size requirements such as eighty, twenty, thirty, forty okay. The interpretation of the building is
versus the use and it’s applicable where it is in the zoning districts throughout town is why
we’re before the Zoning Board of Appeals again.
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October 1, 2015 Regular Meeting
CHAIRPERSON WEISMAN : Counsel has just handed me a copy of the bulk schedule and in the
LB Limited Business Zone District the minimum requirement for business office industrial other
than non-residential uses is lot size square feet is 80,000. You just pretty much what I just you
know have entered into the record but this is directly from the Bulk Schedule. Did the Board
have any questions of Mark or Brian with regard to request for interpretation of Malon? I did
read this into the record.
A.T.A. KIELY : You did? Everything from the application and then the decision?
CHAIRPERSON WEISMAN : I read that and I read from this line through to there. Anything else
that the Board you know I could just simply reiterate for the record that just interpretation took
place on May 20 th of 2004 so it’s in existence and being set a precedent for Notices of
Disapproval okay. We also have a copy of the minutes of that hearing the Public Hearing in
which the Malon application was presented to the Board and I’m going to quote from page 190
line 11 and it starts “after conferring with the Town Attorney” and this is the chairwoman Oliva
speaking at the time “I will let you know that his interpretation of the code is it’s not 30,000 sq.
ft. for each building but merely if you want a commercial building in a B Zone you must have
30,000 sq. ft. in order to build that building which you do have so we have already spoken to
the Building Department and they understand that that’s fine” and then she goes on with some
(inaudible) so you wouldn’t have to chew your finger nails over that one. That was Ruth Oliva.
It’s pretty clear that there was only a discussion about the B Zone that you can have multiple
uses under one roof in one building like a small shopping mall or equivalent in the B Zone
District. There’s absolutely no mention of in this decision of any other zone. There is some
discussion in the original minutes and I’m doing this because the minutes of course reflect the
basis upon which the Board in 2003 made its interpretation and there was some discussion
about other zone districts okay. I’m gonna just put that in in the interests of complete
transparency disclosure which is that strict interpretation under the zoning code will hurt a lot
of the local businesses if they this is I guess Tom MacCarthy is speaking here who is a local
business man and developer real estate agent he goes on to say it will hurt a lot of the local
businesses if they all had to have the minimum lot size per use on the property not just in the B
Zone which is advertised but I asked when you come out meaning advertising a Notice of
Disapproval but I asked when you come out with your interpretation however that goes that it’s
far reaching and goes across all the business zoning categories. It doesn’t just address the B
Zone with the number of uses that are allowed on a piece of property with the bulk schedule
and then the chairwoman says “I think we’ll take that very seriously” and then Mr. MacCarthy
goes on to say “I think that will make a tremendous impact the way that the Building Inspector
is interpreting is definitely in contrast with having a change in code to the way it’s been
interpreted previously with other multiple tenant facilities around town mainly Jim Grays
industrial park, the buildings on the North Rd. in Feather Hill” and so on. The point is there was
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October 1, 2015 Regular Meeting
discussion about other zones. There was a request that the Board look at other zone districts.
Clearly the decision as written only addresses the B Zone. The Board chose not to address those
others. They limited their interpretation strictly to what is in this interpretation which is the B
Zone District. So although there was some discussion and consideration of other zone districts
this determination only addresses the B Zone District. Anything from any other Board member
or any questions that the Planning Board might have about you might have for the Planning
Department with regard to this request for a code interpretation? Is there anything else you’d
like to say Mark or Brian?
MARK TERRY : Thank you for your interpretation.
CHAIRPERSON WEISMAN : Okay so we will separate the East End Tick application from your
request for an interpretation alright? Anything else from any board members or counsel? Okay
hearing no further comments or questions I make a motion to close the hearing reserve
decision to later date. Is there a second?
MEMBER GOEHRINGER : Second.
CHAIRPERSON WEISMAN : All in favor?
MEMBER HORNING : Aye.
MEMBER GOEHRINGER : Aye.
MEMBER SCHNEIDER : Aye.
MEMBER DANTES : Aye.
CHAIRPERSON WEISMAN : Aye.
(See Minutes for Resolution)
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October 1, 2015 Regular Meeting
CERTIFICATION
I Elizabeth Sakarellos, certify that the foregoing transcript of tape recorded
Public Hearings was prepared using required electronic transcription equipment'
and is a true and accurate record of Hearings.
Signature : 4a1924--- 1 ' / 'i/
Elizabeth Sakarellos
DATE : October 5, 2015
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