Loading...
HomeMy WebLinkAboutZBA-07/31/1958 APPEAL BOARD MEMBERS Robert W. Gilispie, Jr. Chalrman -~OUTHOLD, L.I., N.Y. T~[ep~cne SO $~2660 ~IN~TES Southold Town Board of Appeals July 31, 1958 A regular meeting of the Soathold Town B~ard of Appeals was held at 7~30 P.M. oa Theraday, July 31, 1958, in the T~wn Clerk's Office, S~uthe!d~ New York. There were present: Messrs. Roher~ W. G!l!ispie, Jr., Chairm.-; Robert Bergen, Herbert Rosenberg and Charles Grigonis, Jr. Als~ present.' Mr. Robert W. ~asker, Town Coumsel and Mr. Howard M. Terry, Building Inspector. Absent: Mr. Serge Doyen, PG~LIC HF~J~ING.' Appeal No. 77, dated Jul~ 22, 1958, application of Francis J. Marphy, Main Road, Mattituck, N.Y. Fee paid, $15.O0. The Ch-~r=~_- opened the hearing by reading application for a ~pecial eX~ep- tion to the Zo-~mg Ordinance to erect a sign, approxiaately 4t x 6t on the premises ef the applicant. Also letter to applicant advising of date of hea~ing and legal notice of hearing with affidavit from the local newspaper attesting to its publica- tions After studying application and ~ap submitted of the property in question, it was determined that this sign is now on State property. Mr. ~W,~phy ie applying for permission to erect it on property he v,=s and wishes to move the sign back from the highway. Board ,m=-taously granted the spec~-] exception to erect a sign, &pprozimately ~ x 6' at the intersection of the Old Main Road and Route 25, on the south side of Route 25, Mattituck, ~ew York. Sign to he located not less than 5 feet fr~a any property line and to advertise prc~lu~ts which are sold on the premises. This permission is subject to revocation for cause. Minutes of the July 24th meeting were then read. On motion duly made by Mr. Ronenberg, seconded by Mr. ~rigonis, and carried, Minutes were approved as sub~aitted. Southold Town Board of Appeals MINUTES, Continued - 2 - ul~~ , 1958 PUBLIC HEARING: Appeal No. 76, dated July 15, 1958, on application of W. Lister of West Road, Fleets Neck, Cutchogue, New York, for a special exception in accordance with the Zoning Ordinance. Fee paid - $15.00. The Hearing convened at 8 P.M. The Chairman read the application for the appeal, legal notice of public hearing and affidavit that exists in the file attesting to the publication of the notice in the L.I. Watobm~n-Mattituok Traveler and letter to Mr. Thomas Stark, attorney for Mr. Lister, advising h~m of date of hearing. The Chair~ then introduced the members cf the Board to the parties present and explained the procedure that is usually followed at public hearings, indicating that he generally asked those who wished to speak "for" the appeal to speak first, to speak briefly and to keep their remarks to what the application ia about, and then those who wished to object would be called upon to speak if they so desired and the same rules would apply to the objectors. Then he explained that there would be a peried of rebuttal in which those who had spoken originally, either f~r or against, would have a ch~ce to speak in rebuttal but explained that no direct cross examina- tion would be Allowed between the witnesses. Chairman: These statements are being taken down and we would like your name and address if you are going to speak. Is there anyone present who would like to speak for the application? Mr. Thomas M. Stark, 175 Griffing Avenue, Riverhead, New York, addressed the Board advising~that he was ooensel for the applicant, Mr. Listor. Mr. Stark: Itd just like to take a few minutes to outline the application of Mr. Listert s. I will t~ry to ~ake my remarks as brief as possible. To understand Mr. Lister's application for this permissive use I would like te state that it applies te the land in the Fleets Neck section of Outchoguee Mr. Lister purcha~ the property ~-own as "Boatmen's ~a~b~r in April 1954. At that thee he commenced extensive iaprovements to this la~. In the year 1955, in ~uly, he purchased property on the opposite side of West Road. During the latter part of that year and ia 1956 he installed a complete water system and this water systen included a ~uap house, motor pump and underground service lines to serve his ~Beatnen's ~bor", with the plan ia ~4 of ao~e day developing the creek propert2 with marina facilities and yachtel units for occupancy by general boat owners. This water syste~ was approved by the State Water Power Board. In addition substantial work was done upon the property during 1956 and 1957, including the inst~l]ation ef 148 feet of piling along Wick~ Oreck to the south of West Road. Before the e~actment of the Zoning Ord~-~ca he dredged along the shore front at the entrance to Peco~ic Bay. The Zoning Ordinance was enacted in April 1957, at which tine the Zoning 0oa~ esion of the Town classified the ~Boat~ente Harbor· property as ~B" Business and the Fleet property as "As Residential. There was no such classification for "M~ Multiple Residence at that times The Town Board upon reco.,,endation of the Planning Boar~ amended the Ordinance in April of this year to include provisions for the #M" Multiple Residence district. Mr. Lister made application to the Town Board for a ch~ge of zone from "A and the cb~e has already been granted. Mr. Lister p]~-~ the construction of mooring spaces withthe necessary dredging and installation of piles and ~,~beads necessary for the mooring of ~onoo~eroial boats. Th~s =~r~-~-is te be an integral $outhold Town Board of Apl~als ~$, Continued -3- July 31, 1958 pert or adjunct to his commercial endeavor to the north, which is occupied to capacity at this tine. It is our opinion and the op~-~on of many others that the approval of m;~ina facilities such as Mr. Lister proposes is something that is very much needed an~ is somethi~g that will benefit the economy, health, welfare, comfort and convenience of the Tc~ne As a guide in determining the granting of this special exception we would like to say that the proposed mar~-a or boat docks will not disturbthe erderly and reasonable use of adjacent properties and we call your attention to the property to the north, which is of substantial size ~d -l~eady classified as "B" Business. We plan to introduce letters and real estate evidence that this proposed marina will not in any way deteriorate any of the land of the neighboring property owners. The orderly develop- ment will improve the value of upland property. The orderly development of the land as planned has no adverse affect on the safety, health or order of the Town. It would not attract noise. The area is particularly well suited for the erection of this msrina. The facility when erected should not cause any U~ue vehiculA~ traffic on the street, and off-street parking will be provided fo~ the marina unit, for boat owners and others. This is not a use of land that will produce any excess odor, macks or sOOts It will not interfere with any neighboring public facilities. It will not cause any overcrowding of ~ as it is large enough for such a facility, It is not near any church, school or other place of assembly. On behalf of Mr. Lister, if there ere any questions that anyone would like to ask this evening I would be prepared to answer. Chairm,,,~t Are there any questions that a~ of the Board members might like to ask? I would like to ask you, Mr. Stark, what you mean by the Fleet property you referred to? Mr. Stark: It is purely the property which has now been zoned ~M". Ohairman~ Is there anyone else who wishes to speak for this appeal? Mr. William A. Kennedy, Fleetwood Road, Fleets Neck~ I own property and have livod in the neighborhood for over 7 years. Before we came here we locked over all the South Fork of the Island and decided that this was the best place. We have a boat now in "Boatmen's Harbor#. ~even years ago I recoil looking at Boatmen's Harbor and it was a little run down. In the ending years since Mr. Lister has taken over I tb~ that all the residents of the area will agree that it has inproved over the years, We k~ow that Mr. Lister lived down here before. We know that there have been changes in his own personal property. We see no reason why the additio~-~ property he has acquired will not improve the value of the ,rea. I am not being unselfish in talking this way because I own our ~m~ property and I would not be in favor of having the property devalued to any great extent. I feel that it will increase the value of the property and will bring people into the area, people interested in building nice homes in this area. Generally, that sums up what I feel about it. That this entire program up-to- data has been a success down there. That the place has been improved and beautified and that it is going to have an additional value. Southold .MINUTES, Town Board of Appeals Continued -4- Ju3j 31, 1958 Chairman: Is there anyone else who wishes to speak for this appeal? Frank B. Rogers of Cutchogue~ presented a letter from the Cutchogue Chamber of Commerce which he read, as follows: eOn request of Mr. W. Harry Lister of Fleet's Neck, Outchogue, L. I. the Cutchogue Chamber of Commerce has discussed and studied his application before your Board for a "~wina permissive". We have fo,,n8 his request worthy of our support and urge you to find in his favor and grant him permission to construct mooring spaces along the shore of Wick~m Creek- because, 1. It will be the only public dockage in Cutchogue to help increase our tourist business and thereby benefit our community. Because the tourist business is a composite of many other businesses, it stands to reason that what helps one will help others. Tourists spend money for food, They pay to be catered to and provided with cemSerts. ~hey b~ m~ny thimgs and they need a whole range of services. 2. We believe, to m~e a real impact on the "Recession", ~old; concerted action is required at all levels of government-federal, state and local- and by business, industry, home-owners and individuals aimed at creating more Jobs and opportunities through immediate spending for needed products and services. The dollars Mr. Lister spends for needed goods and services will help re-employ amother man and brighten the Job picture in our communitye If everybody lights one moll candle, msny candles will make a brilliant light." Letter was signed, Respectfully yours, Frank B. Rogers, President. Mr. Vincent W. Annabel of Cutchogue: ~. Annabel presented the following letter which he read to the Board, as follows: "Town Beard, Southold, L.I., N. Y., Gentlemen: If Mr. Lister erects and maintains his own bulkhead the present Town Dock in the area will not be over crowded and will be available for residents of Fleets Neck to use. This bulkhead is necessary for many reasons. To keep the chan~el to West Creek open so it maybe used by the property owners of West Creek and Fleets Neck. For beat owners using the Public Dock in this area. To prevent the shore area from being washed into the bay, especially during the hurricane seasom~ A bulkhead is an improvement in the town and with our shallow beaches a pier of this type is necessary for boat owners to tie to, At the present time we ars lacking these necessary facilities. Our government spends millions of dollars each year on piers, Jetties amd bulk- heads. If Mr. Lister is willing to spend his money to improve a waterway in the T~w~ of Southold~ I think he should be permitted to do so." Letter signed: Yours truly, Vincent W. Annabel. $outhold Town Board of Appeals ~TES, Continued -5- July 31, 1958 James M. Dixon~ I am in favor of it. Bernard McOaffery, Cutchogue: In favor of it. Ed Grathwohl, Cutchogue: It has my whole hearted support. MurielAnnabel: I am for Mr. Lister's project. Berme~d Annabel~ I am for Mr. Lister's project. Doris Annabell I am for it. Albin Petrovitch: I'm for it. I'm from Cutchogue. John Braun, New S~ffolk: I am in favor of it. Walter Eaelin, Cutchogue: In favor. Paul Rose, Cutchogue: In favor of its Raymond Hiller, Cutchoguet In favor. Alan Grathwohl, Cutchogue: In favor. Mr. ~ho~as M..Stark: I wou~d l~ke to present at this time a letter from John M. Pollock in favor of this appeal and a petition signed by approximately 100 residents of the Cutchegue, Fleets Neck, area. Also I would like to read an opinion submitted by Mr. Silkworth of Mattituck regarding his opinion as to the affect of values and and neighboring properties. Letter read as follows: OTc Whom It May Concern: It is ~v knowledge and belief that with the terrific increase in the use of boats the problem of finding adequate public anchorage in a safe harbor, adjacent to our su~ner homes area is a necessity today if we are to encourage people to come to Eastern Long Island. At Nassau Point alone, residents not on the water front are finding it difficult to find places to moor their boats. With the tremendouse increase in automobile traffic the pleasure of driving anywhere, especially on week ends, has Ceased. Boating has taken its place in this area and is increasing rapidly. Where are those people who do not live in water front homes going to keep their boats? We should all be farsighted enough not to overlook this serious boat mooring condition. If you were in ~ business you would realize what we will be soon u~ against if places are not provided for s~a boat anchorage. The present heat yards c-~ot bedim to accommodate the boats of all of our people. We have had to turn custom~r~ Southold Town Board of Appeals ~INUTE~, Continued -6- July 31, 1958 For property in this area away because of this condition. They have fime boats and would have to travel too far from homes they might purchase to reach a boat yard. It is my opinion that such a boat marina, properly placed, is a eMust" today.# Chai~-: In order to advise everyone present of the contents of Mr. Pollockts letter, which Mr. Stark presented, I will read it at this time. Letter signed by John M. Pollock, Pollock &Wysong Corp., Port Washington, N. Y. addressed to Mr. W. Harry Lister, Cutchogue, N. Y. "I was glad to have the opportunity to talk with you today. I am quite f~m~liar with the type of Marina-~otel or Yachtel that you contemplate for your property on the south side of Bay Avenue on Wic~m's Creek on Fleet's Neck. I realize that in order to fully effect a pla- of the motel unit for which you have already been granted permission to construct, it will be necessary to build ~f~- slips on your property on the mast side of Wickham's Creek Just in from Peconic Bay. As the owner of property adjoining yours to the north, I feel that you long range plan is a def~ntte improvement to the area. Hence, I would like to state for the benefit of the Board of Appeals that I am in favor of them granting you the variance for which youare applying." Chairman: Is there anyone else who wishes to speak for this appeal? Anyone who wishes to speak against it? Mr. Robert W. Vsnderbeck: I have here a petition, which I would like to present, of 150 of the property o~rs of Fleets Neck opposed to the granting of the application and these people are on Fleets Neck. Mr. Herbert F. Porter: I represent a group known as the Fleetts Neck Property Owners, Inc. I would like to read a letter submitted by our counsel, Mr. Harold Asbewe of Patchogne. Mr. Ashare is unable to be present tonight and asked me to read the letter for him. Letter addressed to the Fleet's Neck Property Owners Association, Inc., Cutchogue, N.Y., Att: Mr. Herbert F. Porter: ~Dear Mr. Porter: This letter concerns the question of the legal propriety of the application of W. Harry Lister for a spec1,1 exception to erect and maintain a mar~ for non-commercial boats in an "M" Multiple Zoning District. The Zont,g 0rd~-ce of the Town of Southold (Article III-A, adopted om April 28, 1958) provides for residential and agricultural use and also for certain types of multiple residences and also for hotels and motels. Article III-A of the said zoning ord~n-~ce m~es no provision for a public marina for the use of commercial or non- commercial boats. Article IV relates to "B" Business Districts in subdivision 14, and m~es provision for boatyards, boat storage yards, boat storage b~sins, ~arinas, mooring piers, etc. Southold Town Bo~rd of Appeals .MINUTES, Contimued -7- July 31, 1958 I do not know of any provision in our T~.~ Law of the State of New York or in the Building Zone Ord~-a~ce of the Town of Southold which will permit the Board of Zoning Appeals of a town to grant a variance or an exception which will change the zoning ord~n.~ce so as to permit a business use or any use of property which is not included in the use area in question. In other words, the law provides that a Board of Appeals may not grant a variance where the use applied for is expressly or impliedly prohibited by the zoning ordinance. The Zoning 0rd~n-~ce of the Town of Southold specifically says, "In the M" Multiple Residence District, no building or premises shall be used and no building shall be hereafter erected or altered unless otherwise provided in this ordimance, except for one or more of the following uses: * * # # e. (There is not included a marina or anything like a mar~-- in such uses which are permitted.) The law has consistently rejected attempts by Boards of Zoning Appeals to include businesses or other activities in areas provided for in other zoning classifica- tions. Clark v. The Board of Zoning ~tppe~ls of Hemnstead, 301 N.Y. 86; Dowsey v. ¥111~Ke of Kensington, 257 N.Y. 221 at 227: Rsthkopf on Zoning, 2nd Edition, pp. 230 The Town Law makes specific provisions for the amendments of the Town and this authority is specifically vested in the Town Board. The Board of Zoning Appeals is an administrative body appointed by the Town Beard and can not assume the legislative functions of the Town Board, even if such authority were delegated to it. There is nothing unique about the situation presented by Mr. Lister's ownership of the property ia questien~ ~erely because the Town Board gave Mr. Lister a change of zone which is in question ~t which permits b~m t$ erect a motel, that does not empower the Board of Zoning Appeals to add to this problem by granting a public marina facility to the motel property. One is not an accessory of the other and the continu- ance of this conditiom would be destructive of all of the law and theory of zow~"ge The ~m~tations of the Zoning Ordianse are specified by the state laws. Mr. Lister, under the guise of a multiple residence use, can not legality extend that grant to a business use and I can find no provision of the Towm Law which permits such action. Under the existing law, if Mr. Lister wishes to erect a public =-~ina, he must first obtain a change of zone to CB" Business for this property. If the Zonimg Board can grant this application, there is no need for Section 265 of the Town Law~ which specifically covers the subject of c-b~_~ges in the Town Ord~-*~ce by action of the Town Board. Signed~ Respectfully, Harold Ashare.s The Board then asked Mr. Porter to submit a copy of ~'~. Ashare's letter so that it might become a part of the record. Nelene Welker: I am against this appeal. Robert Mulder of Fleets Neck: I am opposed to any kind of business in Fleet's Neck. Fred W. Young: I wish to oppose this request. ~outhold Town Board of Appeals ,MINUTES, Continued -8- July 31, 1958 Charles Wysong; Pequash Avenue: I just want to point that the names on our petition are exclusively of those in the Fleet's Neck area~ and if you will study the names on the other petition you will find that m~y of them are not of this area. You will find that 98% of the people in Fleet's Neck are opposed to the cb-~ges which, we understand, you have no control over. It is not legal for you people to okay this addition. If this is granted by you we intend to go further if we have to. We are quite concerned. If you Board members have investigated you will find that there are some very nice homes in this area. One home in p~rticular along side of Mr. Lister's that is worth a terrible lot of money. A woman, a widow, is the owner of the property and unfortunately she is unable to be here tonight. She is opposed to this thing. Chairman: May we have her name? Mr. Wysong: Mrs. Nagle. 98% of the people in the immediate area are opposed to this thing. I keep m~ boat in Mr. Lister's boat yard. I hdpe he will continue to let me keep it there. I tb~,~ we are all entitled to express our opinions. I hope he continues to be a good friem~ of m~e after this. I believe that the allowing of this would depreciate my property. It will create a nuisance value. We assume that there maybe a saloon there some time. One thing leads to another. We just can't stand for that. When they say that business is going to decrease your taxes it doesn't work that way. We are not opposed to progress. We t~ there should be progress but it should be in the business district. Motels are usually along Main Roads. We are pretty proud of our place there. A lot of people who have summer homes are retiring and making these their residences and we want to keep it quiet because of the older people. Estelle Comes: I live opposite the property in question and I am opposed to it. Mr. Gerhardt of West Creek Avenue: I em opposed to it. Grace Wysong: I am opposed to the whole setup. Mrs. Mulder: I am opposed to it. Mr. C. R. Comes: For the last three or four years there has been piles of concrete and rubber tires brought in. The so-c~lle~ improvements have been very, very, slow and I hope that no more of that will be shown. As fas as Mr. Kennedy is concerned, I under- stand that he ia an associate of Mr. Lister and a neighbor and Mr. Kennedy does not live in cur section of Fleet's Neck. I em very much opposed to any sO-called improve- ments such as are talked about. ~h~ you. Miss P. Griswold, West Bay Avenue, Cutchogue: I have lived here for 30 years. We have had a very bad condition in the road for m~y years and I do not think there is any improvement. I em against itc Paul Stoutenburgh, Floor's Neck: I am against this. Florence E. Durl~mi: I have lived here for 38 years. I em against it. Agnes Mothers.lo, Fleet's Neck: I am against it. Seuthold Town Board of Appeals Continued -9- July 31, 1958 Howard Meyer: I am opposed to this. I feel that there will be additional traffic on the road and additional ~a~ger to the children. Chairm,~: If there is no one else who wishes to speak against this appeal, I will at this time ask to hear from those who wish to speak in rebuttal. Mr. Eennedy: I myself live on Floor's Neck an~ I ca~ot see how they arrive at the figure of 98% against. Iknow of so sany that ars for it. As for Mm. Comes remark about improvements, you would only have to look around to know that there has been a great deal of improvement over the last few years regardless of what these people say. Among those who are against this proposition there are m~ny who have hemes in this area for the express purpose of summer rental only. Mr. Lister has done nothing but improve Fleet's Neck and the Town of Cutchogue an~ will, I believe, bring a lsrge amount of economy to the town. Mr. Stark: I wo-l~ l~ke to point out to the Board that a great deal of the made this evening seem to relate to objections to the c~-~e of zone rather than the purpose ef this hearing tonight. The application is for the permissive use of the property in an "M" Multiple Residence zone. Chairman~ There is a great deal of confusion on the part of the people who come here as to whether they are t~]~-g te the Board of Appeals or to the Town Board. Mr. Stark: As to the legal position taken by Mr. Ashare that this Board does not have the authority to grant a special exception to establish a mar~a, referring to the first paragraph under Section 350 of ARTICLE III A, it states "A use permitted in an "A" Residential and Agricultural District". What we ere seeking tonight is one of those uses under Section 300 of Article III, specifically Paragraph 3A. Mr. Lister: First of all I would like te answer Mr. Wysong. He is one of my good customers and I need him. With reference to a nuisance value, we have 17 slips for inboards and 15 for outboards in Boatmen's Harbor. Three quarters of those are occuppied by residents of Fleet's Neck and I live on one of the main streets and would say that our roads are not over trafficked. Mr. Wysong also makes reference to 100 of those in the area who are opposed to this change. That c~n~ot be so as there are two unoccupied houses on the corner. Mr. & Mrs. Comes are opposed to this application. They rent houses. Three are advertised every year. I won~d like you to visit his places and look at m~e. There was an ad in the paper recently which states there were two houses for sale. No name was mentioned but the ad stated that there was a nearby b~_~ber witb~- 500 feet of the property. It gave two telephone numbers and one is the Comes residence. In advertising their property they mention the advantages of being near a m~ina. In business they consider our property so how can you talk out of both sides of your mouth. Mr. Comes says that Mr. Kennedy is an associate of mine. That is not see I am notaffiliated with Mr. Kennedy in anyway. M/ss Griswold states that the roads are dug up. The road is not in bad conditions I would like to compliment Mr. Narold Price for the way he keeps the roads in Fleet's Neck. I think I have answered everything. The statement was made about the fact that there was no noise in this area before. There used to be a place that fishermen would rent and they would put three or four in a room. Also they ran parties ada I seuth~ld Tew~ Bc~d ef Appeals ~INUTE~, Conti~ue~ - 10 - ~uly 31, 1958 have discontinued it a~d there is little or no traffic of that sort there now. How n..y of these units do you expect to construct? · r. ~ister; I have no def~-fte plan as yet. I would say approximately 4 or 5 u~its and it would work cut pretty ~ear the sa~e as Mrs. Coaes, ~aYha one unit ~ore. A · axiau~ of fives Chair~,w; How wo~]~ that relate te the marina. I~ ca~l~,g it a Yachtel will there he a berth for each --it occuppied? Mr. Lister; The purpose of it is to bring in the hca% owner who will than live cfr his boat a~d this would mea~ their staying for a longer peried. People with 35, 40 or ~5 f~ot heats which run about ~5,000 se that the grade of people wh~ will use these will require a high class Yachtel. Chairman.' I presses you lean f~elally high class. ~hat is the pel~]~ticn of Fleet' s Neck? Mr. Wyeung; Approximately 150, or two or three ~ore. I would l~e to speak of a couple of t~,gs. I want to renew that ~tate~ent that our petition was signed by people who live or own he,es in Fleet~s Neck and we did not go ~utsidee Chairman; The individuals sig-~-g the petition see~ to Be objecting to the change of sones Mr. Wyseng; The petition was drawn up before the ch,,,~se of zone but everybody sig~4-~ knew they were s~g-twg for the second paragraph. ~ethar situation is that we are surrouned by salt water un three sides which lea~s us to be concerned about the water supply. 0~; This situation is a Board of Nealth proBle~ -~ does not concer~ this Board. ~e have not~-g to say about that problem. If there is no one else who wishes to epeak we will close the hearing and t~you all for cc~-g es a hot nights We will reach our decision ia a few days. Nearing closed. The next ~eeting cf the Hoard is scheduled for August 7, 1958, at 7;30 P.M. Meeting adjourned at 10;30 P. M. Respectfully suhaitted, Grace B. Meyer Secretary