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HomeMy WebLinkAbout4526 175,qQunt~ Rd. 48 35 O8 TheodOre & Marie Petikas 93389 7/31/85 vari~hce for resturant or business in ~ residential sone APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman James Dinizio, Jr. Lydia A. Tortora Lora S. Collins George Homing Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 ZBA Fax (516) 765-9064 Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD FINDINGS, DELIBERATIONS AND DETERMIf REGULAR MEETING OF MAY 19, 199! RECEIVED AND FILED BY THE SOUTHOLD TOWN CLERK Appl. No. 4526-V THEODORE AND MARIA PETIKAS TAX MAP PARCEL 1000-35-1-8 STREET & LOCALITY: Corner of Routes 25 and 48 and Sound Road, Gmenport DATE OF PUBLIC HEARING: March 23, 1998 and May 14, 1998 I. REQUESTS MADE BY APPLICANTS, THEODORE AND MARIA PETIKAS, for A) Area Variance to Article III, Section 100-30A.3, to the Bulk Schedule for Residential Districts, and to the Density and Lot Size Schedule for Residential Districts of the Code of the Town of Southold for permission to construct and establish a detach~ two- family dwelling on an undersized nonconforming lot containing 21,483 sq. ft. in a R-40 Residential Low-Density instead of 80,000 sq. ft. minimum as required for two-family dwellings (R-40 Zone requires a minimum of 40,000 sq. ft. for single-family residence). B) Area Variance to Article XXlII, Section 100-231 of the Code of the Town of $outhold for permission to erect a (6) six-foot height fence in a front yard area instead of the code- limited (4) four-foot height, beginning at the west front corner of the property and extending easterly 100 feet in length along the front property (along County Route 48). C) SPECIAL EXCEPTION under Article Ill, Section 100-31-B(1 ) of the Code of the Town of Southold for pem~ission to establish two-family use in a proposed two-story dwelling on an undersized 21,483 sq. ft. lot in the R40 Low Density Residential District. This request is addressed in a separate decision HOUR Town Clerk, Town o! Soulhold II. PROPERTY FACTS/DESCRIPTION: The property is located in a R-40 Residential Low Density District on the northwest comer of County Route 48 (North Road), (State Route 2!5) and Sound Road, Greenport, Town of Southold. The subject property contains a total area of 21,483 sq. ft. The lot size as exists is substandard and nonconforming for this R-40 Low Density District, meeting only 52% of the lot size requirement. Applicants' proposal is to erect a 48 ft. by 28 ft. two-story, two-family dwelling on an unimproved lot which has frontages of approximately 200 ft. on Route 48, and 100 ft. on Sound Road. The proposal calls for a single point or driveway for vehicle access from Sound Avenue, a front yard building setback of approximately 110 feet from Sound Road, a minimum front yard setback at 40 ft. from the County Route 48/North Road, and a minimum Page 2 May 19, 1998 Appl . # 4526V : i 000 35-1-8 (Pet./kas Variances) Southold Town Board of Appeals of 20 ft. from the closest (rear) northerly property line. The May 5, 1985 survey, amended May 9, 1985 and June 6, 1985,submitted under this application shows that the property was vacant in 1985 with the exception of a small shed, located approximately 24 feet from the property line on Sound Road,. This shed was at one time used to sell farm produce and no longer exists today. The property is unimproved. The 1985 survey also indicates that an easterly portion of the property ,approximately 9,776 sq. ft., was zoned 'B' Business, and the larger westerly portion of the property (11,707 sq. ft.) was zoned 'A' Residential. The easterly portion of the property was mzoned in January 1989 to R-40 Low Density Residential under the town's comprehensive update of its master plan and zoning regulations. Since January 1989, the entire lot was zoned Residential (R-40 Low- Density) in which a single-family residence on 40,000 sq. ft. minimum is required. Prior to 1989, the record shows that the entire 21,432 sq. ft. parcel was not business zoned as indicated by the applicants' attorney in her recent testimony before the Board. III. CODE PROVISIONS/BASIS OF APPLICATIONS: Building Inspector's February 10, 1998 Notice of Disapproval which reads:. "..the proposed fence exceeds four(4) feet in height, Article XXlII, Section 100-231, fences shall not exceed four (4) feet in height when located in the front yard of a residential zone." 2. Chapter, 100 "Zoning" under Article III, SECTION 100-31-B(1) which reads as follows: "Uses permitted by Special Exception" upon receiving approval from the Board of Appeals: "Two family dwellings not to exceed one such dwelling on each lot." 3. Section 100-30A..3 and Bulk, Area and Parking Regulations reads: "No building or premises shall be used and no building or part thereof shall be erected or altered in the Low-Density Residential R-40 Zone District unless the same conforms to the requirements of the Bulk Schedule and the Parking Schedule, with the same force and effect as if such requlations were set forth herein in full. (Emphasis added). 4. Article III, Section 100-30A.1 provides for the purpose of the Low Density Residential R- 40 District as follows: "The purpose of the Low-Density Residential District is to provide areas for residential development where existing neighborhood characteristics, water supply and environmental conditions permit full development densities of approximately one (1) dwelling per acre and where open space and agricultural preservation are not predominate objectives." IV. FINDINGS OF FACT: The Board of Appeals has reviewed all information and evidence brought before it and based upon all testimony, documentation, personal knowledge and other relevant evidence, the Board of Appeals finds the following facts to be true and relevant: The applicants propose to construct and establish as a new principal use a two-family dwelling on An undersized nonconforming lot containing 21,483 sq. ft. in a R-40 Residential Low density District (minimum requirement for a single family residence is 40,000 sq. ft., and for a two-family 80,000 sq. ft. is required). Page 3 Appl . #4528V : t 000~5-1-8 (~tik~s Yari~es) So~lthold Town Board of Appeals The minimum lot size required for two-family dwellings in the R-40 district is 80,000 sq. ft. Applicant's contend that the footnote "NA" in the "Density and Minimum Lot Size Schedule for Residential Districts" means that the 80,000 sq. ft. lot size requirement is not applicable (NA) if provisions of community water or water and sewer am made. Applicants' position is incorrect. A clear reading of the Town Code and as applied by the Zoning Board of Appeals, the Planning Board, and the Building Department, indicates that the minimum lot size requirement of the specified district are not further reduced simply because town water and sewer are available. This intent of the code to double the lot-size requirement for two-family dwellings in the residential districts, AC, R-40, R-80, R-120 R-200 R-400, is clear and consistent in the Schedules of the Code. There is no reduction ( NA Not applicable) in the minimum lot size requirements in these districts. This point is further illustrated in the Schedule, which provides for specific lot-size reductions for two-family dwelling with utilities in the Hamlet Density Residential District and the Resort Residential District. On April 5, 1985, when applicants purchased the properties, the entire parcel was split zoned: the smaller easterly portion of the promises (9,776 sq. ft.) was zoned 'B' Business, and the larger westerly portion (11,707 sq. ft.) was zoned A-Residential. Although applicants state that the property "was purchased as a business-zoned lot for $80,000 and it was greatly devalued by the subsequent rezoning in 1989," Town records confirm that more than half of the 21,483 sq. ft. lot was residentially-zoned at the time of applicants' purchase, and the residential zoning has continued for more than 13 years. According to the Board of Appeals File No. 3389, on July 31, 1985, three months after Theodore and Maria Petikas purchased this lot (under one deed/metes and bounds description) they applied for a variance to use a portion of the residential-zone of this lot for a proposed or possible business. After the public hearing on October 3, 1985 under Appl. No. 3389, the hearing was recessed by applicants' attorney and the application abandoned and discontinued by applicants. On, January 10, 1989, the Town of Southold adopted a comprehensive update of its zoning regulations and master plan. The easterly business-zoned portion (9,776 sq. ft.) of the applicant's property was rezoned to R-40 Residential Low Density, and the westerly 11,707 sq. ft. portion was renamed or reclassified from A-Residential to R.40 (with no change in minimum lot size requirement). 5. The applicant's 21,483 sq-ft, lot size meets only 26 percent of the 80, 0000 sq. ft. of the requirement for establishment of a two-family dwelling use. The minimum lot-size requirements in the R-40 Residential Low Density Districts for two- family dwellings, and the intent therein, was noted by town's legislative actions in 1989 and clearly stated in Section 100-30A.1: "The purpose of the Low-Density Residential District is to provide areas for residential development where existing neighborhood characteristics, water supply and environmental conditions permit full development densities of approximately one (1) dwelling per acre and where open space and agricultural preservation are not predominate objectives." V. REASONS: On the basis of testimony heard and documents submitted, and after personal inspection of the property, the Board further finds, and determines, as follows: Page 4 Nay 19, 1998 Appl . # 4526V : 1 000- 35-1-8 (Petikas variances) Southold Town Board of Appeals I. Grant of the area variance for the lot size will produce an undesirable change in the character of the neighborhood or a detriment to nearby properties because the degree of the variance is so great -- a 74 percent reduction in the 80,000 sq, ft. minimum lot size requirement -- that it constitutes an unwarranted over-crowding of an undersized nonconforming lot, 2. The benefit sought by the applicants can be achieved by some method feasible for the applicants to pursue other than area variances because the applicants can build a single- family residence on the lot without variances. Although the applicants seek to recoup a perceived financial loss incurred in 1985 when the applicants purchased this land for a business purpose at a cost of $80,000, the record demonstrates that the applicants knew at that time that the code required a minimum of 40,000 sq. ft. of land area for each. In addition, when the applicants purchased the property, the Zoning Code required a minimum of 160,000 sq. ft. for a two-family dwelling. 3. The requested variances are substantial. Applicants' request for a lot area variance represents a 74 percent reduction in the minimum code requirement of 80,000 square feet. 4. The difficulty has been self created because the applicants were aware of the status of the zoning of the property when they purchased it as a split-zoned business and residential zoned parcel, and that it was substandard and nonconforming in size for any permitted use in either district. The applicants could have z%quested a determination from other municipal applications (such as a use variance or a change of zone) if the intent were to recover a financial hardship, during any time period since 1985). 5. The difficulty is further self-created because the applicants, by this special exception and variance project, seek to recoup losses from 13 years ago. While this Board recognizes that a two-family dwelling may yield a more profitable return than a single-family residence, no financial proof has been submitted to substantiate applicants' claim that the property cannot be sold for any other permitted use such as a permitted single-family residential use, or income derived from such permitted use. 6. The proposed variance will have an adverse effect and impact on the physical and environmental conditions of the neighborhood because a two-family dwelling on an undersized lot (21,483 sq. ft.) will double traffic, will double impacts to groundwater from a dual septic system, and double the intensity of land use, which in turn affects the neighborhood and is contrary to the stated purposed of the R-40 Residential Low Density District. VI. RESOLUTION/ACTION: On motion by Chairman Goehringer, seconded by Member Dinizio, it was RESOLVED, to DENY the Variance requested as to lot size of 21,483 sq. ft. for a two- family dwelling use, for the reasons noted above, and BE IT FURTHER RESOLVED, to GRANT the Variance as to fence height for a maximum of six feet for a 100 ft. length, SUBJECT TO THE FOLLOWING: That all fencing along C.R. 48/North Road is limited to this 100 ft. length along or within the applicant's front property line/yard. VOTE OF THE BOARD: AYES: GOEHRINGER, DINIZIO, TORTORA, COLLINS. (Member Horning of Fishers Island was absent and e_y,r.,us~ This RpsO'TEt'i'~l-wa.~d~ly adopted (4-0 of the members present)). ~ ~..~/ //.~ERARD P. GOEHRII~G~ER, CI:IAIRMAN ~" Approved for Filing N Th±s ls only to show Orig±nal map for original seai and surveyors info at time of mapping. Do NOT use in variance application for two- family use - this is not a proposed subdiv. Attorney for applicant asks we ignore subdiv. lot lines and ignore the old zoning designa- tions. 11/3/971k ~q ,/ ] [ I I DEPARTMENT OF PLANNING COUNTY OF SUFFOLK ROBERT J. GAFFNEY SUFFOLK COUNTY EXECLBVE STEPHEN ~4 JONES, A.I.C.P. DIRECTOR OF PLANNING June 22, 1998 Town of Southold Zoning Board of Appeals Applicant: Municipal File No.: S.C.P.D. File No.: Petikas, Theodore & Maria 5426 & 4525 SE SD-98-02 Pursuant to the requirements of Sections A 14-14 to 23 of the Suffolk County Administrative Code, the above referenced application which has been submitted to the Suffolk County Planning Commission is considered to be a matter for local determination as there is no apparent significant county-wide or inter-community impact(s). A decision of local determination should not be construed as either an approval or disapproval. Comment: Appears inappropriate as premises could be reasonably developed for single family residence purposes. Very truly yours, Stephen M. Jones Director of Planning S/s Gerald G. Newman Chief Planner GGN:cc C:1111CCIZONING',ZONING\WORKING\LDS\JUN\SD98~02 WPD LOCA~ON MAILING ADDRESS H. LEE DENNISON BLDG, - 4TH FLOOR · P. 0 BOX BIO0 · (516) 853-51D0 I O0 VETERANS MEMORIAL HIGHWAY HAUPPAUGE, NY I 1788-0099 TELECOPIER (5 I 6) 853-4044 To FORM NO. 3 TOWN OF SOUTHOLD BUILDING DEPARTMENT Soo'rHOLD, N.Y. NOTICE OF DISAPPROVAL · ?~y%~%~.~.. ~e~r~. AZq.%hqqqq~q.~q~.M.a.~ia Petikas · ~15. ~kalia ~aa4 ................... ..~.~ci.r..u,c,k,, ~ X~k..ll~2 ............ PLEASE TAKE NOTICE that your application dated ...P~g..e~b.~!. ~ ....... I~? .... for permit to erect a fence Location of Property ..~ ..... ~:~:.~ ...................... P YFMP?Y? ........... House No. Street Hamlet County Tax Map No. [000 - Section ..~ ....... BLOCK ..J ........ LOT .~ ........... Subdivision ............................... Filed Map No ........... Lot No ........ is raturned herewith and disapproved on the following grounds .~.~.~Y~ .......... , ............ ..6~q~.~nq~[~.~.~q~+~.~?9[~.?~.~PPPf~: ............................................... RV ]/80 R£C£1VFn OCT 2 7 1997 10wn Clerk 5outl~01cl TOWH OF $OUTIIOLD, NEW YORK APPEAL FROM DECISION OF BUILDING iNSPECTOR TO THE ZONING BOARD OF APPEALS. TOWN OF SOUTHOLD, N, Y. 1, IWel Maria E Theodore Petikas of 225 Stewart Ave ~ ~..~..~.r;c~r~C..~fe t~ Street and Number ~Fn ~ Nome of Appellant Bethpage, NY 11714 ............................ HEREBY APPEL TO Municipality State TNE ZONING BOARD OF APPEALS FROM THE DECISION OF THE BUILDING INSPECTOR ON APPLICATION FOR PERMIT NO ..................................... DATED ...................................................... WHEREBY THE BUILDING INSPECTOR DENIED TO Name of Applicant for permit of " Municipality State Street and Number ) PERMIT TO USE ) PERMIT FOR OCCUPANCY I. LOCATION OF THE PROPERTY ~S~.~.n....d.~.~...d.~:.~.C...~.~.~.8.~..~..S..~..t1...t.h..~...];.d.. ....... .~..~-.~.0. .................. Street /Hamlet / Use District on Zoning Map District 1000 Section35 Blockl Lot8 Petikas .............................................................. Current Owner Map No. -Lot No. Prior Owner 2. PROVISION (S) OF THE ZONING ORDINANCE APPEALED (Indicate the Article Section, Sub- section and Paragraph' of the Zoning Ordinance by number. Do not quote the Ordinance.) Article IIIA Section 100-30A.3 3. TYPE OF APPEAL Appeal is made herewith for (please check appropriate box) (X) A VARIANCE to the Zoning Ordinance or Zoning Mop ( ) A VARIANCE due to lack of access (State of New York Town Low Chap. 62 Cons. Laws Art. 16 Sec. 280A Subsection' 3 () 4. PREVIOUS APPEAL A previous appeal (has) (has not) been made with respect to this decision of the Building Inspector or with respect to this property. Such appeal was (x) request for o special permit simultaneously with this appeal ( ) request for a variance crud was made in Appea! No ................................. Dated ............................. , ........................................ REASON FOR APPEAL ( ) A Variance to Section 2BOA Subsection 3 (X) A Variance to the Zoning Ordinance ( ) is requested for the reason that parcel is on a busy 'intersection, previously zoned business, 2-family house is a residential use with some commercial benefit with no change to character of the area. Form Z~I (Continue on other side) FORH NO. I TOI~N ()lt SOU'FIIOLD BUI I.D1NG DEPARTNENT TOWN IIAL1. $OWflIOLD, N.Y. 1197 I TEl.: 765-1802 Approved ...... ~..,,./~_,. ~· 19.~,. Pemdt No ................. , pp ed a/c ... / ..... OF IIEAI.TII ............... ~ s~s o~s ............... c.~c~ ./.. .... 1~$ ~:. ....... SEPTIC FORH ................... NOTIFY: CALl ................... HAIl. TO: .................... APPLICATION FOR 8UILDING PERHIT Date ................ , 19 .... 1 NSTRUCT IONS a. 'lhia application mint be c~)letely filled in by typewriter or in ink aed md~itt~ to tbe ~dhliag hm~ctor will: 3 ~ta of pl~s, ~rate plot plm to ~ale. F~ according Co ~lle. b. Plot plm ~miq l~atlm of lot ~ of ~ildi~a ~ pr~i~s, relati~sip to ~joini~ pr~i~s or ~)lic atr~ts or areas, ~ ~ivi~ a ~tail~ ~ripti~ of layout of pro~rty ~at ~ dr~ ~ the diagran M~idl is I~rt off this appl icati~. c. '11~ ~ c~ ~ fids applicatico otay i~t I~ coa~ed I~Fore isle of ~ildi~ Pe~it. d. II~ a~al of ~sia a~licatico, tim ~ildi~ ]ns~ctor will is~ a ~filding Pemit to the a~licant. ~h i~tmit ~mll ~pt ~ d~ ~i~s avail~le for insl~ti~s tlsro~t the s~rk. ~. ~ la~ildi~ ~mtl ~ ~o~pied or u~l in M~Ie or in ~rt for any ~l~ ~lat~er ~til a C~rtificate of ~c~tms~y fltall h~e I~n gr~t~ by tbe I~ildit~ lns~tor. . ~.ICA'FI~ I8 Ig~ ~ to tbe ~ihli~ l~arta~ot for the ia~e og a Ikdhli~ ~mit ~rmmnt to the I~ailtli~ ~ ~di~ of fl~ ~ o~ ~tl~ld, ~folk C~mty, ~ Yo~, a~ otl~r a~lic~le l~a, ~dis~ea or ~flati~, for fl~ mt~tim of Imildi~a, ~iti~a or alteraCi~a, or for r~al or ~liti~, as I~rein ~scril~. 11~.a~li~t ~a to ~ly wi~ all a~li~ble l~a, ordi~ea, ~ilding c~, ~ing c~e, ~ red,latium, mfl to ~it ma~rl~ i~tora on pr~i~a a~ in I~ildlng for ~cea~ ins~ti~a. (Si§nature of applicant, or ~me, if a ,~orporation) (Hailing address of applicant) State ~hether applica~st is o.n~er· lessee, agent, ardfitect, engis~eer, geeeral ccotractor, electrician, plmt)er or builder. ................. .................................... (aa co tl~e tax roll or latest deed) If applicant is ~ corporation, signature of chfly authorized officer. (Nam~ mx] title of corporate officer) J. If Izmh~ss, ~rcial or mi~l ~oqmt~, sl~cify ~tur~ a~l vytent o[ each ty~ of u~ ...................... '. 1)h~nni~m of ~i~ting ~tn~t~re~, if ~ny: Fr(~t ................ ~ar ............. ~. ~pth ................. l)]netmi~s of sa~ atn~t~re with nlterati~m or mMitlona: Front ............... ~ar ............... gi~ of lot: Fm~t .................... ~ar .................... ~pth .................... (L l~Le of ~wdm~ ... ~..~ .............. ~ o[ For~r ~er ........................................ ~m of r~tr~tor ................................... hhlrens ............................... B~e ~ ............... 5. la this p~rty within ~ [~t o~ a thhl ~tlmxl? * W3 .......... ~ .......... PI.OT l) IAGRAH ~tl~r interior %~ co~r lot. ~ Of i~Hv~d~ml, nl~nJng c(n~l;rnct) (Cxn~trnctor, n~ent, corl~rnte officer, etc.) E nnld ~r or ~rn, nr~l in duly ~tl~rlx~ to ~rft~m or h~ I~rro~ 1.1~ ~hl ~tk taxi Lo rake taxi file Lid, Iqd icathn~; U~nt nil ~t~t~.t~ c(mto{~l in thi~ nl~llcnti~m nr~ tr~ to Ole I~nl: o~ h[n k~l.~ m~ I~[]~f~ rani hnt the ~rk vitl I~ ~rro~l j, 1.1~ ~1.~[ ~t forth in the nl~licntj~ . .... MARIA AND THEODORE PETIKAS SPECIAL PERMIT FOR TWO FAMILY RESIDENCE MEMORANDUM OF LAW ~/~Y I 2 t,;98 To: Southold Zoning Board of Appeals (one copy of memo with cases and 4 prints of memo) Town Attorney, G-reg Yakaboski, Esq. (one copy of memo with cases) From: Patricia C. Moore, Esq. 51020 Main Road, Southold, NY 11971 (516) 765-4330 FACTS The applicant proposes to construct a Two-family residence on a single and separate parcel created in 1952. The Two-Family residence is a permitted use by special permit. This parcel is a pre-existing lot in the R-40 zoning district, previously zoned Business. The parcel is located on the Northwest comer of County Route 48 and Sound Road, directly across from the parking lot for "Porkys" restaurant. The parcel, as a single family lot, has been greatly devalued by the residential zoning. The applicant purchased this parcel as a business zoned lot for $85,000.00. The lot, as a residential lot has been on the real estate market for several years for construction of a single family home without generating any interest. The grant of a special permit for the two family residence would provide some value to the owner, provide quality alternative housing for a small family, and the property will be developed more in character with the area. The design of the house and size will be the same as a single family home, the only difference in this use is that the occupants can be unrelated. Whether one family occupies four Bedrooms or two families occupy four bedrooms does not impact the residential use of property. LAW The use is consistent with the Special Permit standards of Southold Town Code, section 100-264: A. The use is in character of the district in that the Town Board legislated this use in the district and the appropriateness is presumed. Framike Realty_ Cob.. v. Hinclc 632 N.Y.S. 2d 177, 220 A.D. 2d 501 (2nd Dept., 1995) This parcel is double the acreage of almost all the developed parcels along Sound Road. This parcel is located within 1000 feet ora proposed multifamily long term care facility at the "Breaknock Hall" property. B. The use will not prevent the orderly and reasonable use of permitted or legally established uses in this R-40 district or in adjacent use districts. The use remains residential and the size, character and design of the residence will be no different than a single family residence. M0,tt~r 0f C~th~rine P.Mason v. Town of Clit~on Park, 422 N.Y.S.2d 166, 72 A.D. 2d 889 (3rd Dept., 1979) C. The safety, the health, the welfare, the comfort, the convenience or the order of the Town will not be adversely affected. The house has been located to face Sound Road in order to promote the proper development of this parcel. A higher fence is proposed along County Route 48 to provide privacy and safety to the residents of the house. However should the height variance be denied, the property will be fenced in accordance with the Town Code to protect the occupants from the noise and vehicles traveling along County Route 48. D. The use is in harmony with and promote the general purposes and intent of this chapter. By the use being deemed a special permit use, the Town de~ermined that the two-family use is in harmony with and promote the general purposes and intent of this chapter. Framike Realty Coro.. v. I-Iinck. 632 N.Y.S. 2d 177, 220 A.D. 2d 501 (2nd Dept., 1995). E. The use will be compatible with its surroundings. The design of this residence will be identical in exterior design as a single family residence. The visibility, scale and overall appearance will be the same as a new single family home on a parcel which is double in size to most of the homes on Sound Road. Sound Road contains neatly kept homes which are predominantly preexisting nonconforming structures on undersized lots. F. All proposed structures, equipment and material will be readily accessible for fire and police protection. This will be a new home in compliance with New York State Fire Prevention and Building Code. The Zoning Board will further consider section 100-264: A. The character of the existing and probable development of uses and the particular suitability of this district for the location of any such permitted use. The use permitted is residential, the only difference between the proposed two family and single family use is the relationship of the occupants. The size of the house will remain the same, the only design difference of the house will be the need for two kitchens. Matter of Catherine P.Mason v. Town of Clifton Park, Supra., 422 N.Y.S.2d 166, 72 A.D. 2d 899 (3rd Dept., 1979) B. The conservation of property values and the encouragement of the most appropriate uses of land. The property was zoned Business when the owner purchased this property, he is trying to maintain the value of the property with a two family residence. The use remains residential. C. The location of the proposed use, etc., the front of the house will be Sound Road and the ingress and egress will also be maintained on Sound Road. D. The availability of adequate and proper water supply, sewage, refuse, etc. While the application was being processed by the Zoning Board, the application was submitted in October 24, 1997, the Suffolk County Water Authority acquired the Village of G-reenport water system and imposed a moratorium on new hookups. The water main runs adjacent to this property and the applicant has a right to connect to public water when the water moratorium terminates. The moratorium is awaiting the Town and Water Authority completion of their water management plan. This parcel cannot presently get public water whether it is a sinele family residence or two-family residence. The applicant wishes to proceed with the application and make the special permit approval may be conditioned on public water hookup. E. Not applicable. F. Not applicable The use will not cause interference with parking or recreational facilities. H. Not applicable I. No hazard to life, limb or property will be caused by this residential use. No overcrowding of land or undue concentration of population will be caused by this use. The plot area is sufficient, appropriate an.d adequate.. ~ ~: L~f'~'t~; ~./' No ore~ v~rlan~g~ are reouired.fsee Pmnt ~/I o . .~o- ~-.~-~"~ ~ Not relevant, in that the use is residential. ~ ~- C//¥/~f ~, ,.~,,~.v-~.~ M. The proposed site is particularly suited for a two family residence in that the location is near the Cn'eenport Village shopping district, public transportation is available by bus and train, and the property is near the Long Island Sound public beach. N. There is adequate buffer yards for the residential use, the applicant has requested a 6 foot fence along the County Route 48 to give the occupants a nice private and secluded sideyard. In the event the 6 foot fence is denied the applicant will place a 4 foot fence along County Route 48 to buffer the occupants from the highway. O. Adequate provisions will be made for storm water runoff, sewage and refuse. P. The natural characteristics of the site will not be disturbed any greater than a single family residence. POINT II The parcel is recognized by the Town as a "single and separate" parcel pursuant to Town Code Section 100-24. "The purpose of single and senarate ownershin exceotlon clauses to zoning amendments is to nrotect Iomt-term ~rooertv owners from amendments that render useless their nrevlouslv ennformin~ orooertv, thus ~reventinff restrictive zonln~ ordinances from h~ving possible unconstitutional confiscatory effect". Andrew P. DeTroia v. Schweitzer, 87 N.Y.2d 338, 639 N.Y.S. 2d 299 (Ct of Appeals, Jan. 16,1996) Therefore, no area variances are required with regard to the proposed use on the subject parcel. POINT III The Chairman raised the issue of whether the "Density and Minimum Lot Size Schedule for Residential Districts"schedule requires two acres for a two-family use in R40 (one acre zoning). The Schedule states that where community water is available the schedule is "NA" ( not applicable). Conflicts between sections of the town zoning ordinance regarding whether the parcel size is doubled by the proposed two-family use must be resolved in favor &the applicant. It is a well established principle in Zoning law that "zoning regulations, being in derogation of the common law, must be strictly construed against the municipality which has enacted and seeks to enforce them, and any ambieuity in the language used must be resolved in favor of the nrooerty owner" Hess Realty Corp. V. Planning Commission &the Town of Rotterdam, 603 N.Y.S.2d 95. 198 A.D.2d 588 (Third Dept. 1993~. The schedule is in conflict with the English language, as well as the text of the chapters referring to Nonconforming lots, section 100-244 and with the text of the chapter which allows this use by Special Permit. Such conflicts must be resolved in favor of the applicant. The Petikas parcel will be developed with public water. The applicant will have to wait for water availability in the Fall. This requirement is applicable for a single family residence and two family residence. Mr. Petikas understands that he will be waiting for water availability in order to obtain a building permit. CONCLUSION In light of the facts of this case and the law the Special Permit for a two-family residential use should be granted. Reason for Appeal Continued Zoning Board of Appeals re: Maria & Theodore Petikas Pursuant to Town Law section 267b-3 the Southold Town Zoning Board of Appeals is to analyze and asses the personal benefits anticipated by the applicant against the potentially deleterious effects that a grant of the relief requested would have on the health, safety and welfare of the effected neighborhood or community. In ~erforming this balancing test, the Zoning Board is charged with the responsibility to consider the five factors enumerated in Town Law Section 267b-3(b). The variance should be granted for the following reasons: 1. No undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties, if the variance is granted. The parcel is located on the corner of County Route 48 and Sound Road. This corner was formerly zoned business because of the commercial character of the area. The proposed two family home will appear from the outside as a single family home, will be modest in size with a proposed footprint of 50 feet by 30 feet, and will use Sound Road as the front property line. The applicants would also request a fence along CR 48 of 6 feet in order to preserve the privacy of the side and rear yard. 2. The benefit sought by the applicant can not be achieved by some method, feasible for the applicant to pursue, other than an area variance. The applicant purchased this parcel for $80,000 in 1985 because the property was commercially zoned, he would not have otherwise purchased a residential lot on a busy corner for that price. The two family residence will generate a greater return than a single family residence, and provide rental opportunities in the Town of Southold. 3. The area variance is not substantial The application of the balancing test weighs in favor of the grant of the variance. The property was at one time two lots which merged into one 21,483 sq.ft. Lot. The property has been single & separate since, at least, 1985 when the applicants purchased the property. The proposed building envelope of the residence will comply with all setbacks. 4. The variance will have no adverse'~effect or impact on the physical or environmental conditions in the neighborhood or district. The two family residence will have no greater effect or impact on the physical or environmental conditions than a similarly sized single family residence 5. The alleged difficulty was not self-created. After extensive research to be sure that they had a commercially zoned parcel the applicants purchased this property not a residentially zoned property. The lot size was created in conformity with the other properties in this area. 6. The variance requested is the minimum variance practicable given the personal benefits anticipated by the applicant. Even with the lot size of 21,483 sq. ft. The applicant has located a structure which conforms to the R-40 area regulations. The lot has been less than the required one acre minimum since , at minimum, 1985. The applicants have suffered a significant loss with the rezoning. Even at today"s values, a residential lot at this location is not valued at $80,000. We respectfully reguest that the appeal be granted, together with any further relief that is deemed necessary and reasonable. State of New York ) )ss County of Suffolk ) Sworn to this ~ day 617-3.1 Appendix C State ~,~vironmerttal Quality Review SHORT ENVIRONMENTAL ASSESSMENT FORM For tJNMSTE~ AC'T~ONS Only =ART I--PROJEOT INFORMATION (To be comoleted by Aol2dcant or Proiec! s~aonsor) SEQR If the ac*,ion is in the Caastal Area. and '/ou are a state agency, complete the Coastal Assessment Form before Croceeciincj with trois assessment OVER I (Continued on reverse s de) (b) If any quest-ion ha~ been answer--d Yes the orojec-~ may be sig- L. Will project result in a large ~hy=ical change ~uC~m =e~sa~onal opport~i~es? ~es /No (1-516) 765-1809 tel. OFFICE OF BOA.KD OF APPEALS 53095 W.-{- Road. Southold, NY' 11971 (1-516) 765-1823 fax X Variance from the Zoning Code, Article_~ , Section Variance from Oetermination of Southold Town Building Inspector Special Exception, Article , Section __ Special Permit Appeal No: 4526 Applicant: Theodore & Maria Petikas Location of Affected Land: Southold,N.Y. County Tax Map Item No.: lO%%BneBN~'8m Within 500 feet of: 11971 Town or Village Boundary Line Body of Water (Bay, Sound or Estuary) x State or County Road, Parkway, Highway, Thruway Boundary of Existing or Proposed County, State or Federally Owned Land Boundary of Existing or Proposed County, State or Federal Park or other Recreation Area Existing or Proposed Right-of-Way of any Stream or Drainage Channel Owned by the County or for which the County has established Channel Lines, or Comments: Within One Mile of a Nuclear Power Plant Within One Mile of an Airport Applicant is requesting permission, to I nt'g'ize. Bulk ~ched,,le Copies of Town Dated: ~ file an~ related ~ocuments enclose~ for your review. 1998 Maria T. Petikas Theodore P. Petikas 225 Stewart Avenue Bethpage, NY 11714 October 17, 1997 Patficia C. Moore, Esq. 31 $ Westphalia Road P.O. Box 483 Mattituck, NY 11952 Dear Ms. Moore: We, Maria T. Petikas and Theodore P. Petikas, residing at 225 Stewart Avenue, B~hpage, NY 11714 hereby authorize you to make an application to the Zoning Board of Appeals, Town of Southold on our beh~. Very truly yours, Maria T. Petikas Theodore P. Petikas AP['LTCANT TItANSACTXONAL DXSCLO~URE FOlt~ Tile Town of Southold's Code of Ethics prohibits conflicts oF interest on tile part of town officers and employees. The purpose of this form is to provide information which can alert the town of possible conflicts of interest and allow it to take whatever action is necessary to avoid same. YOUR NAHE: (Last name, first name, middle Initial, uti.less yon are applying in the name of other entity, st]cb as a company. the other person's or company's If so, indicate NATURE OF APPLICATION.- (CLeric all that apply. ) 'Fax grievance Variance Change of zone Approval of plat Exemption from plat or official map Other (If "other,- name the activity. ) parent, or child) bav~ a relationobip with any officer or employee of th~ Town of Soutbold? 'R~latlon~hip- ~nulude~ by blood, marriage, or bu~ine,, int~re,t. wbfcb the town officer or employee has even a partial ownership of (or employment l)y) a corporatton In vhicb tile town officer o~ employee owng mote than 5% of tile YES NO If you answered 'YES," comp.l_ete tile balance of tills form and date and sign where indicated. Name of person employed by tile Town of Southold Title or position of that person Describe tile relationship between yourself (tbs applicant) and tile town officer or employee. Either check tbs appropriate line A) through D) and/or describe in the space provided. Tile town officer or employee or his or her spouse, sibling, parent, or child is (check ali. that apply). A) the owner of greater than 5% of the shares of the corporate stock of the applicant (when tbs applicant is a corporatlon)~ , B tile legal or benefic~al owner of any interest in a noncorporate eutity (when the applicaet is not a corporation): __C an officer, director, partser, or employee of the applicantl __D tbs actual applicant. DESCRIPTION OF RELATIONSIIIP Signature /~;~o-.~--/-- TOWN OF $OUTHOLD PROPERTY RECORD CARD OWNER STRE~ b q q ~ 5 V,~,. ~,S~SU,. 5 W ~PE OF BUILDING RES.-~ , S~S. VL. ~"ll FARM COMM. CB. ~M~Mkt. Valu. N~ NOR~L BELOW ABOVE FARM Acr. Valu. P~r ' Valu. "Acre.' Ti~ 1 -' Tillabl. Woodlaqd . Swampland FRONTAGE ON WAT~ ', Brushland FRONTAGE ON ROAD House Plot DEPTH ~ ~ ~. , .~ ~ BULKH~D COLOR TRIM M. Bldg. Foundation Extension . . Basement Extension Extension Porch Breezewoy Potio ,! TOtal Ext. Walls Fire Place Type Roof {ecreation Roor Dormer Drivewoy I-I I I/ III IIIIIIII 1/ I I I I I I I I I II I IIIIILI_J_I 1_1 Bath ~inette Floors ,' · Interior Finish LR. / -loot Rooms 1st Floor Rooms 2nd Floo, DR. BR. FIN. B. PROPERTY RECORD CARD .,~ · ~.% , _,:~, _~ W TYPE OF BUILDING ~,~_ ,.-,-~-. :,~ !:: ':~0~ - :-~- - :- ~ND ' ' IMP. I TOTAL DATE R~RKs ' -'~ ~1':/, - V ~'t~ ~ .,~ > - .... ~ ~ ~. J ....................... - A(~E .......... BUILD1NG CONDITION NEW- :7 -Nb~A~L- - !- - B~EL-OW .... ABOVE ...... Value Per _V_a l~u.~ _ Acre. tillable ~rushland -louse Plot Fatal FRONTAGE ON WATER FRONTAGE ON ROAD DEPTH BULKHEAD DOCK SUPREME COURT, SUFFOLK COUNTY STATE OF NEW YORK .... ............................... Theodore Petikas and Maria Petikas, Petitioners, for a judgment pursuant to Article 78 of the CPLR -against- NOTICE OF PETITION Gerard P. Goehringer, Chairman, James Dinizio, Jr., Lydia A. Tortora, Lora S. Collins, and George Horning constituting the ZONING BOARD OF APPEALS OF THE TOWN OF SOUTHOLD, Respondents. SIRS: PLEASE TAKE NOTICE that, upon the annexed Petition, duly verified the 16th day of June, 1998, the undersigned will move this Court, at IAS Part II, to be held in and for the County of Suffolk, at the Supreme Court, Griffing Avenue, Riverhead, New York, or at such other place as the assigned Justice shall designate, on the ~! day of ~u~ ~ 1998 at 9:30 o'clock in the forenoon of that day, or as soon thereafter as counsel may be heard, for a judgment, pursuant to Article 78 of the civil Practice Law and Rules, (1) finding the respondent arbitrary and capricious, and reversing and annulling the decision of the Zoning Board of Appeals made on May 19, 1998 and filed with the Town Clerk on May 27, 1998 denying the Special Exception use, and (2) directing the respondents to grant the Special Exception use without condition; and (3) annulling the area variance determination in that the respondents acted without legal authority, except with regard to that part of the decision which grants an area variance for the height of a fence (not before this Court) ; and (4)grant such other and further relief as to the Court is just and proper. PLEASE TAKE FURTHER NOTICE that a verified answer and supporting affidavits, if any, must be served at least five (5) days before the return date of this application. PLEASE TAKE FURTHER NOTICE that, pursuant to Section 7804 of the Civil Practice Law and Rules, Respondent is directed to file with the Clerk of the Court its answer-and answering affidavits, if any, together with verified transcripts of the records of the proceedings, together with the entire official file containing the records of the hearings herein held by Respondent, including the decision, application, testimony, exhibits, and all other papers and documents submitted for consideration thereof. This Proceeding is commenced in Suffolk County on the basis that the subject decision was made and issued by the Respondent Southold Town Zoning Board of Appeals in the said County. Dated: southold, New York June 16, 1998 Attorney for Petitioner 51020 Main Road Southold, NY 11971 (516) 765-4330 ')~\~' RICHARDG WARD PLANNING BOARD OFFICE TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-3136 Telephone (516) 765-1938 TO: FROM: Gerard P. Goehringer Robert G. Kassner, Site Plan Reviewer~-~ RE: Request for comments: T. Petikas Riverhead Building & Supply M. Rosen Radio Tower Nextel Communications AMAC/ Former Empire Service Station ~T. Petikas · Recommend that Suffolk County Department of Public Works be notified as we understand that road work is planned for Route 48. Riverhead Building & Supply See attached memo dated April 1, 1998· Rosen Radio Tower · Board feels that Town Code Article XVI, 100-160, Wireless Communication Facilities applies to this use. Nextel Communications · Board favors this collocation of antenna. AMAC/former Empire Service Station · See attached memo dated March 10, 1998 Attachments June 26, 1985 Southold Town Bldg. Southold Town Hall Southold, NY Re: C.O. for C.O. for Dept. 11971 Donald C. Delalla Theodore Petikas (Spartan Holding) Dear Dot and Helen: Enclosed please find affidavit of Donald C. the correct lot number. I have also enclosed affidavit of Theodore my check # 1037 in the amount of $10.00, C.O.s for the above matters Please issue convenience. MJI{: 6~~.,' enc. Sincerely, Michael Delalla with Petikas and at your earliest J. Hall TOWN HALL SOUT HOLE~EW YORK CERTIFICATE OF OCCUPANCY NONCONFORMING PREMISES THIS IS TO CERTIFY that the /--_x! Land !x/ Building(s) C'_/ use(s) located at 175 C.R. 48 & 55 Sound Rd. Pre C.0. #- Z13598 Date- ~ Greenport Street Hamlet shown on County tax map as District 1000, Section 035 , Block 01 Lot 008 , does{not,conform to the present Building Zone Code of the Town of Southold for the following reasons: Insufficient total area. Shed has insufficient set-backs. On the basis of information presented to the Building Inspector's Office, it has been determined that the above nonconforming /~/Land /--_X/Building(s) /Z/Use(s) existed on the effecllve date the present Building Zone Code of the Town of Southold. and may be continued pursuant to and subject to the appli- cable provisions of said Code. IT IS FURTHER CERTIFIED that, based upon information presented to the Building Inspector's' Office, the o~-cupancy and use for which this Certifi- cate is issued is as follows: Property contains shed & table, property situated in the A-Residential-Agricultural & BJLight Business Zone with access to Sound Rd. a town maintained Rd. & CR 48 a state maintained Rd., ( and County ) The Certificate is issued to SPARTAN HOLDING C0. (owner, of the aforesaid building. Suffolk County Department of Health Approval N/A UNDER~q{ITERS CERTIFICATE NO. N/A NOTICE IS HEREBY GIVEN that the owner of the above premises PLUS NOT CONSENTED TO AN INSPECTION of the premises by the Building Inspes- tor to determine ff the premises comply with al! applicable codes and ordin- ances, other than the Building Zone Code, and therefore, no such inspection has been conducted. This Certificate, therefore, does not, and is not intended to certify that the premises comply with all other applicable codes and regula- tions. Buiidin~ inspector 473889 35. -1-8 55 SOUND RD SOUTHOLD ~ 21 · : OWNER & MAILING INFO ==:I:MISCt ?~4~$~9~ ==DIMENSIONS ACRES =======TOTAL CODE AMOUNT PCT Fl=NEXT PARCEL 75.10- 03-050 NYSRPS ASSESSMENT INQUIRY SCHOOL ERE IPORT SCHOOL RES DATE : 10/01/2001 ROLL SEC TAXABLE TOTAL RES SITE TOTAL COM SITE ACCT NO 17 ~= ASSESSMENT DATA =========== '** RES PERCENT 3,300 COUNTyTelcph°n¢(631) 765~05200 TOWN 3,300 1,100 SCHOOL 3,300 TOTAL 1,100 ===1======= SALES · 49 IBOOK 9777 ~T~-~j~SALE PRICE ' 80,000 I PAGE 00577 PR'O~NER-SPIRT-A~--PFOLDING CO EXEMPTIONS 0 =============~== TOTAL SPECIAL DISTRICTS 3 ===== INIT TERM VLG HC OWN CODE UNITS PCT TYPE VALUE IFD031 IWW020 ISW011 F3=NEXT EXEMPT/SPEC F4=PREV EXEMPT/SPEC F6=GO TO INVENTORY F9=GO TO XREF F10=GO TO MENU FORM NO. 6 TOWN OF $OUTHOLD Building Department Town Hall 8outhold, N.Y. 11971 APPLICATION FOR CERTIFICATE OF OCCUPANCY In~'uctions A. This application must be filled in typewriter OR ink. and submitted in duplicate to the Building Inspec- tor with the following; for new buildings or new use: 1. Final' survey:Df property with accurate location of all buildings, property lines, streets, and unusual natural or topographic features. 2. Final approval of Health Dept. of water supply and sewerage disposal-(S*9 form or equal). 3. Approval of .electrical installation from Board of Fire Underwriters. 4. Commercial buildings, Industrial buildings, Multiple Residences and similar buildings and installa- tions, a certificate of Code compliance from the Architect or Engineer responsible for the building. 5. Submit Planning Board approval of completed site plan requirements where applicable. B. For existing buildings (prior to April 1957), Non-conforming uses, or buildings and "pre-existing" land uses: 1. Accurate survey of peoperty showing all property lines, streets, buildings and unusual natural or topographic ~features. 2. Sworn statement of owner or previous owner as to use, occupancy and condition of buildings. 3. Date of any J~ousing code or safety inspection of buildings or premises, or o~ther pertinent informa- tion requiredito prepare a certificate. Fees: 1. Certificate of occupancy $5.00 . 2. Certificate of occupancy on pre-existing dwelling or land use 3. Copy of certificate of occupancy $1.00 $5.00 Date .. May 30, 1985 New Building ............. Old or Pre-existing Building(X) . r Vaca n ...- ......... Location of Property 175 County Road 48 and' 5.5 Sound..R.o,a..d.:.Green~ort Houze NO. $~/eet Hamlet Owner or Owners of Property . (The°dare & Ma..r.~re Petikas.~:~)~'~(C~C~(~f~ Co nty Tax Map NO 1000 Section ,035. Block 01. Lot .08 Subdivision Filed Map No Lot No Permit No Date of Permit Applicant ' Health Dept. ApprovAl ........................ Labor Dept. Approval ............ ~.. Underwriters Approval .................... -.. · Planning Board Approval .................. - " Request for Temporary Certificate ..................... Final Certificat~ ....X,.. Fee Submitted $ ........................ C.?~ns, I~f~tig~.~n a_~boye described building and permtt~ meets all apptipable~,ode~ and regula~i0n%. AFFIDAVIT Re: Theodore petikas Premises: 175 County Road 48/55 Sound Road Greenport, New York STATEOF NEW YORK) COUNTY OF SUFFOLK) ss.: Theodore Petikas, being duly sworn deposes and says: That I am one of the owners of premises described on Suffolk County Tax Map as 1000-035-01-08. That I believe that the premises have been used continuously since April 23, 1957 for business purposes and is suitable for continued business use and Certificate of Occupancy for same. THEODORE I~ETI KAS Sworn to day of J~ before me this 1vi~~ tne, ~985. ~'~ ~ publiC, ~tato ol N~ Yorg No. Z0~723436 O/ Q ' ' Gs r~ar 30i'19J Memorandum from... BUILDING INSPECTORS OFFICE TOWN OF SOUTHOLD TOWN HALL, BOX 728, SOUTHOLD, N.Y. 11971 765-1802 FOLLOW-UP and UPDATE FOR YOUR RECORD: TO: All ZBA Members FROM: ZBA Chairman via ZBA Office Attached is an (original)~ of/~ ~/a.~) 7~r/r~ ~'/~/(hew inforrm~tion added to the original Town ZBA~f~e) re: Pending Application of ' ~ . Piacmd in Member' office nm. il boxes lot' update on 51/2[0~ b~ff~ Board. Tr-ans Copyright (c) West Group 1998 No claim to original U.S. Govt. works 632 N.Y.S.2d 177, 220 A.D.2d 501, Framike Realty Corp. v. Hinck, (N~Y.A.D. 2 Dept. 1995) · 177 632 N.Y.S.2d 177 220 A.D.2d 501 In the Matter of FI~AMZKE REALTY CORP., v. Robert W. RINCKv Br., et al., Respondents. Supreme Court, Appellate Division, Second Department. Oct. 10, 1995. Village board of trustees denied application for special exception permit for proposed drive-in restaurant. Those seeking permit'sought review. The Supreme Court, Nassau County, Robbins, J., dismissed proceeding, and appeal was taken. The Supreme Court, Appellate Division, held that: (1) unlike variance, special exception permit classification is tantamount to finding that, if conditions are met, use is in harmony with general zoning plan and will not adversely affect neighborhood and surrounding areas, and (2) generalized complaints by residents as to increased traffic and insufficient parking were insufficient to counter evidence that roads were able to handle any increase 'in traffic and, thus, there was no basis for denial of special exception permit application. Reversed. ZONING AND PLANNING k482 414 .... 414IX Variances or Exceptions 414IX(A) In General 414k482 Variance and exception distinguished. [See headnote text below] 1. ZONIN~ AND PLANNING k483 414 .... 414IX Variances or Exceptions 414IX(A) In General 414k483 Permit, variance and alteration of regulations distinguished. N.Y.A.D. 2 Dept. 1995. Unlike variance, special permit or special exception permit allows owner to use subject property in manner expressly permitted by law. 2. ZONING ARD PLANNING k378.1 414 .... 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k378 Grounds for Grant or Denial ~ 414k378.1 In general. N.Y.A.D. 2 Dept. 1995. Special permit or special exception permit classification is tantamount to legislative finding that, if special exception conditions are met, such uses are in harmony with general zoning plan and will not adversely affect neighborhood and surrounding areas. 3. ZONING AND PLANNING k387 414 .... 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k384 Nature of Particular Structures or Uses 414k387 Amusements and restaurants. N.Y.A.D. 2 Dept. 1995. While board of trustees of village was free to consider matters related to public welfare in determining whether to grant or deny special exception permit for proposed drive-in restaurant, it was impermissible to deny special exception permit solely on basis of residents~ generalized objections and concerns about increase in traffic, which amounted to community pressure. e ZONING AND PLANNING k387 414 .... 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k384 Nature of Particular Structures or 414k387 Amusements and restaurants. 2 Dept. 1995. Generalized complaints of residents as to increased traffic and insufficient parking for proposed drive-in restaurant, which were uncorroborated by any empirical data or expert opinion, were insufficient to counter evidence submitted by experts that area roads were able to handle any increase in traffic from drive-in restaurant~ thus, there was no basis upon which board of trustees for village could properly base denial of application for specf~l exception permit for the proposed restaurant. · 178o Forchelli, Schwartz, Mineo & Carlino, Mineola (Peter R. Mineo, of counsel), for appellant. Spellman & Walsh, Garden City counsel), for respondents. (John P. Gibbons, Jr., of Before O~BRIEN, J.P., and JOY, ALTMAN and FLORIO, JJ. MEMORANDUM BY THE COURT. In a proceeding pursuant to CPLR article 78, to review a determination of the Board of Trustees of the Village of Mineola, dated January 19, 1994, which denied the petitioner's application for a special exception permit for a drive-in restaurant, the appeal is from a judgment of the Supreme Court, Nassau County (Robbins, J.), dated August 29, 1994, which dismissed the proceeding. ORDERED that the Judgment is reversed, on the law, with costs, the petition is granted, the determination is annulled, and the proceeding is remitted to the Board of Trustees of the Village of Mineola for the purpose of issuing the special exception permit requested by the petitioner, subject to such appropriate conditions and restrictions as may be imposed. [1] [2] [3] Unlike a variance, a special permit: or special exception allows an owner to use the subject property in a manner expressly permitted by law (see, Matter of North Shore Steak . ~ House v. Board of Appeals, 30 N.Y.2d 238, 331 N.Y.S.2d 645, 282 N.E.2d 606; Matter of C.B.H. Props. v. Rose, 205 A.D.2d 686,-613 N.Y.S.2d 913). Such a classification is tantamount to a legislative finding that, if the special exception conditions are [220 A.D.2d 502] met, such use is in harmony with the general zoning plan and will not adversely affect the neighborhood and the surrounding areas (see, Matter of Robert Lee Realty Co. v. Village of Spring Val., 61 N.Y.2d 892, 474 N.Y.S.2d 475, 462 N.E.2d 1193; Matter of North Shore Steak House v.>Board of 'Appeals, supra; Matter of C.B.H. Props. v. Rose, supra ). While the Board of Trustees of the Village of Mineola (hereinafter the Board of Trustees) was free to consider matters related to the public welfare in determining whether to grant or deny a special exception or permit (see, Cummings v. Town Bd. of North Castle, 62-N.Y.2d 833, 477 N.Y.S.2d 607, 466 N.E.2d 147; Matter of C & B Realty Co. v. Town Bd. of Town Oyster Bay, 139 A.D.2d 510, 526 N.Y.S.2d 612), it was impermissible to deny a special exception or permit solely on the basis of generalized objections and concerns of.the neighboring or adjoining community expressed by members thereof, which, in effect, amount to mcommunity pressure" (Matter of Robert Lee Realty Co. v. Village of Spring Val., supra, at 894, 474 N.~..S.2d 475, 462 N.E.2d 1193). Further, generalized complaints about traffic from local residents duscribing existing conditions are insufficient to counter an expert opinion based on empirical studies that "the existing street system could handle the projected increase in traffic" (Matter of Oyster Bay Dev. Corp. v. Town Bd. of Town of Oyster Bay, 88 A.D.2d 978, 979, 451 N.Y.S.2d 796; see also, Matter of Triangle Inn v. Lo Grande, 124 A.D.2d 737, 508 N.Y.S.2d 240; Green v. LoGrande, 96 A.D.2d 524, 464 N.Y.S.2d 831; see also, Matter of Old Country Burgers Co. v. Town Bd. of the Town of Oyster Bay, 160 A.D.2d 805, 553 N.Y.S.2d 843). [4] In this instance, the generalized complaints of the 'residents as to increased traffic and insufficient parking, an~ the, summary recommendation of the Village of Mineol& Plan~ing .~ Board, were uncorroborated by any empirical data or expert opinion. Therefore, there was insufficient evidenceto counter the evidence submitted by the appellantts expertethat the area roads were able to handle any increase in traffl=.'?~Thus,~there -~'wae-no basis in the record upon which the Board of Trustees could '~properly base a denial of the application and the petition should have been granted. Copyright (c) West Publishing Co. 1997 No claim to original U.S. Govt. works. 422 N.Y.S.2d 166, 72 A.D.2d 889, Mason v. Zoning B~. of Appeals of Town.of Clifton Park, (N.Y.A.D. 3 Dept. 1979) · 166 422 N..Y.S.2d 166 72 A.D.2d 889 In the Matter of Catherine P. MASON, Respondent, v~ ZONING BOARD OF APPEALS OF the TOWN OF CLIFTON PARK, AppslXant. Supreme Court, Appellate Division, Third Department. Nov. 29, 1979. Property owner instituted Artiole 78 proceeding seeking order directing zoning board to issue special permit. The Supreme Court at Special Term, Saratoga County, Harold R. Soden, J., granted the property owner's application, and zoning board' appealed. The Supreme Court, Appellate Division, held that: (1) proper standards were not applied by zoning board in denying the. property owner's application for a special use permit; (2) reasons submitted by the zoning board for denying the application were inadequate; and (3) property owner was not entitled to award of costs absent showing that the zoning board acted with gross negligence, in bad faith, or with malice. Affirmed as modified. ZONING AND PLANNING k391 414 .... 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k384 Nature of Particular Structures or Uses 414k391 trailer parks. N.Y.A.D., 1979. Multiple dwellings, lodgings and Fact that neighborhood consisted of one-family residences was not proper standard to apply as basis for denying application for special use permit for sale as duplex of previously modified h6use where such special use would not affect character of the neighborhood since the physical structure of the house would not be altered and only change which would result was that occupants of the two units in the house would not have to be related. e ZONING AND PLANNING k391 414 .... 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k384 Nature of Particular Structures or Uses 414k391 trailer parks. N.Y.A.D., 1979. Multiple dwellings, lodgings and ~., · Where two-family dwellings were use permitted by special exception under specific zoning classification, purported fact that duplex was not use of residence allowed under such classification was not proper standard upon which tobase denial of application for special use permit to permit sale of house'as duplex. ZONING AND PLANNING k378.1 414 .... 414VIII Permits, Certificates and Approvals 414VIII(A) In General 414k378 Grounds for Grant or Denial 414k378.1 In general. Formerly 414k378 N.Y.A.D., 1979. Special permit, unlike variance, showing of hardship. did not require o 414VIII(A) 414k384 Uses 414k391 'trailer parks. N.Y.A.D., 1979. ZONING AND PLANNING k391 414 .... 414VIII Permits, Certificates and Approvals In General Nature of Particular Structures or Multiple dwellings, lodgings and Financial benefit owner would reap from sale of residence as duplex was not proper criterion in zoning ordinance for granting special permit. 5. ZONING AND PLANNING k436.1 414 .... 414VIII Permits, Certificates and Approvals 414VIII(C) Proceedings to Procure 414k436 Hearing and Determination 414k436.1 In general. Formerly 414k436 N.Y.A.D., 1979. Unanimous vote by zoning board against special permit constituted act of rejection and not reason for rejection. .6. MANDAMUS kl90 250 .... ~' . .........250III Jurisdiction, Proceedings, and Relief ~ ~ 250k190 Costs. N.Y.A.D., 1979. In Article 78 proceeding in which order directing zoning board to issue special permit was-sought, petitioner was not entitled to award of costs absent showing that zoning board acted with gross negligence, in bad faith, or withmalioe. Town Law Sec. 267, s~bd. 8. Kevin M. Dailey, Clifton Park, for appellant. Robert M. Jacon, East Greenbush, for respondent. Before MAHONEY, P. J., and GREENBLOTT, MAIN, MIKOLLand HERLIHY, JJ. · 167 MEMORANDUM DECISION. Appeal from an order of the Supreme Court at Special Term, entered November 13, 1978 in Saratoga County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, for an order directing the issuance of a special permit. Petitioner obtained a building permit from the Town of Clifton Park in 1971 to construct an addition to her house. The addition, consisting of two bedrooms, a living room, kitchen and bathroom, had a separate entrance and was used as a residence by petitioner's son and his wife. Because two-family dwellings are a use permitted by special exception in the R-1 residential district in which her house was located, petitioner, now desirous of selling her home as a duplex, applied to the Tow~ Zoning Board of Appeals in 1978 for a special use permit. The application was referred to the Town Planning Board which recommended that the special permit be denied because (1) the neighborhood consisted of one-family residences, (2) .a duplex is not allowed in an R-1 zone, and (3) denial of the permit would not cause an u~due hardship. After a public hearing, the zoning boarddenied petitioner's[72 A.D.2d 890] application due to the'fact that (1) the area is zoned for single-family homes, (2) petitioner would reap a substantial financial benefit if allowed to'sell the house as a duplex, and (3) the zoning board's vote against the permit. · was unanimous. Petitioner then'instituted this article 78 proceeding ~or an order directing the zoning board to issue her a special permit. The zoning board appeals from a determination<of Special Term granting the relief requested and awarding~¢osts to petitioner. [1][2][3] Proper standards were not applied in'denying petitioner's application for a special use permit.~ The local~ zoning law provides'the criteria to be utilized by,the planning board, which is authorized to consider "among other~things,·the.~>.r need~for the proposed use in the proposed location~the~existl of the neighborhoo~ in which the use would b e-:located and'~the safeguards provided to minimize possible ~detrimental>.'i ~effeots of the pUrposed use on adjacent property. W~?Contrarv to the first reason given by the planning board for recommending /' denial of the special use permit, petitioner's application will not affect the character of the neighborhood since the physical structure of the house will not be altered and theonly~ohange contemplated is that the occupants of the two units will not have to be related. The planning board's second ground for denial is inv$1id.-since uses permitted by special exceptionare expressly allowed in an R-1 zone (Matter of North Shore Steak House v. Board of Appeals of Inc. Vil. of Thomaston, 30 N.Y.2d 238, 331 N.Y.S.2d 645, 282 N.E.2d 606~ Matter of l(night v. Bodkin, 41 A.D.2d 413, 344 N.Y.S.2d 170). In addition, a special permit, unlike a variance, does not require a showing of hardship (Matter of Pleasant Vel. Home Constr. v. Van Wagner, 41 N.¥.2d 1028, 395 N.Y.S.2d 631, 363 N.E.2d 1376). [4][5] Moreover, the reasons submitted by the zoning board for denying petitioner's application are also inadequate. The first reason given has already been disposed of. The second reason advanced, that petitioner would reap a financial benefit, is not a criterion in the zoning ordinance for granting a special permit and thus not relevant to the zoning board~e decision (eee Matter of Pleasant Vel. Home Constr. v. Van Wagner, ~eupra I Matter of Knight v. Bodkin, supra ). The final reason, given by the zoning board is that its vote against the special permit was unanimous. This vote constitutes the Act of rejection and no= a Reason for rejection. The finding of the zoning board is, therefore, not supported by any evidence and SpecialTerm properly ordered the zoning board to issue the special permit (see Matter of Ouderkirk v. Board of Appeal of Town of Bethlehem, 58 A.D.2d 667, 395 N.Y.S.2d 525). [6] Special Term was not, however, Justified in awarding Costs to the petitioner absent a finding that the zoning board acted with gross negligence, in bad faith, or withmalice (Town Law, s 267, subd. 8). Accordingly, the judgment of SpecialTerm · 168. should be modified by striking the provision awarding costs to petitioner (Matter of Franciscan Missionaries of Mary v. Herdman, 7 A.D.2d 993, 184 N.Y.S.2d 104, affd. 7 N.Y.2d 829, 196 N.Y.S.2d 705, 164 N.E.2d 723). Order modified, on the law and the facts, by striking therefrom the provision awarding costs to petitioner, and, modified, affirmed, without costs. as so Copyright (c) West Group 1998 No claim to original U.S. Govt. works 639 N.Y.S.2d 299, 1996~) 87 N.Y.2d 338, DeTroia v. *299 639 N.Y.S.2d 299 Schweitzer, (N.Y. 87 N.Y.2d 338, 662 N.E.2d 779 In the Matter of Andrew P. DeTROIA st al., Appellants, Vo Joseph SC~w~ITZER et al., Constituting the Zoning Boar~ of Appeals of the Village of Farming~ale, Respondents. Landowners brought action for judicial review of decision by village zoning board of appeals to deny building permit. The Supreme Court, Nassau County, Robbins, J., annulled determination of village zoning board of appeals. Appeal was taken. The Supreme Court, Appellate Division, 206 A.D.2d 370, 614 N.Y.S.2d 325, reversed. Landowners were granted leave to appeal. The Court of Appeals, Levine, J., held that scope of single and separate ownership exemption to zoning restrictions was not limited to lots substandard in total square footage area, but included lots substandard in width and frontage. Reversed. N.Y. 1996. ZONING AND PLANNING k254 414 .... 414V Construction, Operation and Effect 414V(B) Architectural and Structural Designs 414k254 Area and frontage requirements. Scope of single and separate ownership exemption to zoning restrictions was not limited to lots substandard in total square footage area, but included lots substandard as to width and frontage; use of phrase "any plot smaller in area than herein required" did not refer solely to lots substandard in total square footage area. N.Y. 1996. ZONING AND PLANNING k254 414 .... 414V Construction, Operation and Effect 414V(B) Architectural and Structural Designs 414k254 Area and frontage requirements. thus preventing?~estrictive ordinances from having possible unconstitutional confiscatory effect. APPEAL, by permission of the Court of Appeals, fro~ an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered July 5, 1994, which (1) reversed, on the law, a judgment of the Supreme Court (Alfred S. Robbins, J.), entered in Nassau County in a proceeding pursuant to CPLR article 78, granting the petition, annulling a determination of the Zoning Board of Appeals of the Village of Farmingdale that denied appellants~ application for a building permit, and directing the Zoning Board of Appeals to issue the building permit, (2) confirmed the determination, and I3) dismissed the proceeding. *300 [662 N.E.2d 780] Matter of DeTroia v. Schwei~zer, 206 A.D.2d 370, 614 N.Y.S.2d 325, reversed. [87 N.Y.2d 339] Anthony B. Tohi11, P.C., Riverhead (Anthony B. Tohill, of counsel), for appellants. James L. Breen, Farmingdale, for respondents. [87 N.Y.2d 340] OPINION OF THE COURT LEVINE, Judge. Appellants are the owners of a vacant lot situated in a residence AA zoning district in the Village of Farmingdale, Nassau County. The lot has remained in an individual ownership, separate from any adjoining lots, at least since 1899, and had that status on December 7, 1942, when the first Farmingdale Zoning Ordinance was enacted. The Zoning Ordinance, as amended in 1959 and 1988, provided for building restrictions on dimensionally substandard lots in an AA zoning district as follows: "Lot area. "No principal building and accessory buildings shall be erected upon a lot that has a street frontage and minimum lot width at the front and rear wall of the principal building of less than seventy-five (75) feet and a lot area of less than seven thousand five hundred (7,500) square feet (Code of Village of Farmingdale s 105-39)." The Zoning Ordinance, however, contains a "single and separate ownership" clause (see, i Anderson, New York Zoning Law and Practice s 9.43, at 473 [3d ed] providing for the relief of lots which became substandard as a result of the subsequent adoption of zoning restrictions: "Existing.nonconforming lots. "Any plot smaller in area than herein required in which the ownership at the time of the adoption of this ordinance differs from the ownership of all adjoining plotslmay be improved with buildings which shall comply ~o faras ~racticable with the provisions of this ordinance (Code of Village of Farmingdale s 105-154)." [87 N.Y.2d 341] Appellants! lot has a frontage and width of 63.55 feet and an over-all area of 10,804 square feet. In March 1991, they applied for a building permit to construct a single- family residence on their property. Their lot is subject to various covenants and restrictions preventing any'development of the property other than construction of a single-family residence. Appellants claimed entitlament to a building permit without applying for and being granted a variance from the dimensional requirements of Village Code s 105-39 rudder the single and separate ownership exemption of the Zoning Ordinance. However, the Village Zoning Hoard of Appeals (ZBA),to whom the matter was referred, denied their permit application without explanation. After appellants commenced this proceeding to challenge that determination, the ZBA rendered a decision that the single and separate ownership exemption only applied to lots substandard in total square footage area, not as to width and frontage. The ZBA, thus, ruled that, since the total area of appellants~ lot exceeded the minimum of 7,500 square feet in section 105-39, they were not entitled to the exemption, notwithstanding that the lot was rendered substandard by subsequently enacted minimum frontage and width restrictions. [1] Supreme Court rejected the ZBA~s restrictive interpretation of the single and separate ownership exemption and annulled its denial of appellants~ building permit application. The Appellate Division reversed, on the ground that the ZBA~s determination had a rational basis (206 A.D.2d 370). We now reverse, concluding that the ZBA's narrow construction of the single and separate ownership exemption in the Zoning Ordinance is unsupportable. As quoted above, the ordinance sets forth all minimum dimensional requirements (frontage, width and square footage) for building lots under the generic heading "Lot area". The ZBA~s interpretation violates the canon of construction that "8 term of greater comprehension"includes a lesser term. The axiom that the whole includes all of its parts is properly applied in the construction of statutes" (McKinney~s Cons. Laws of N.Y., Book 1, Statutes s 237, at 403). Under that canon of construction, the reference to a "plot smaller in area" (Code of Village of Farmingdale s 105-154 [emphasis supplied] ,301. [662 N.E.2d 781] in the single and separate ownership exemption, rather than specifying an exemption based solely in terms of square feet, should be interpreted as subsuming all of the dimensional restrictions included in "Lot area" under section 105-39. [2] [87 N.Y.2d 342] The ZBA~s confined interpretation also manifestly undermines the purpose of the single and separate ownership exemption and gives rise to arbitrary and inconsistent applications of it. The purpose of single and separate ownership exception clauses to zoning amendments is to protect long-term property owners from amendments that render useless their previously conforming property, thus preventing restrictive zoning ordinances from having a possible unconstitutional confiscatory effect. These exemptions are a part of most zoning codes, and they serve an important and fair purpose (see, 1 Anderson, New York Zoning Law and Practice s 9.43, at 472-479 [3d ed]. Farmingdale~s exception provision is typical. Indeed it is indistinguishable from the "representative provision" cited by Anderson (op. cit., at 473) insofar as both that provision and Farmingdalets Code s 105-154 use the generic inclusive term "area" rather than merely specify particular components of area. Under such typical provisions "when the frontage or area restrictions become effective * * * the owner of a substandard lot need not seek a variance. He is entitled as of right to an exception" (Anderson, op. cit., at 473 [emphasis supplied]. Here, the ZBA~s narrow interpretation of the exception provision frustrates the ameliorative purpose of the ordinance. Lots rendered substandard as to width or frontage by a zoning ordinance are deprived of value in the same way as ones rendered deficient as to square footage. Under the Boardts interpretation, however, the exception clause is only effective to prevent restrictive zoning amendments from having a possible confiscatory effect if the land is deficient in square footage~ .property owners whose land is sufficient in square footage but deficient in other components of area, i.e., width and or frontage, are unprotected. No rational purpose is served, and none is cited by the ZBA, by giving lots rendered nonconforming as to frontage and width and square footage automatic exemptions, but excluding previously conforming lots rendered nonconforming only as to width or frontage. Thus, the ZBA~s interpretation arbitrarily forces landowners such as petitioners into litigation to protect their rights, despite an ordinance designed to protect them as a matter of course. .Cons.] Finally, the ZBA's interpretation violates the rule of construing zoning ordinances enunciated by this Court, which we have already applied in construing a single and separate ownership [87 N.Y.2d 343] exception provision: "Any ambiguity in the language used in such regulations must be resolved in favor of the property owner" Matter of Allen v. Adami, 39 N.Y.2d 275, 277, 383 N.Y.S.2d 565, 347 N.E.2d 890. Thus, the ZBA incorrectly, construed the meaning of the term area--whether it means only square footage or the dimensional components of length and width in addition to square footage--against the landowner. Because the ZBA~s construction arbitrarily undermines the purpose of the clause, promotes unconstitutional takings, and violates established rules of construction, it should not stand. Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated. Order reversed, etc. KAYE, C.J., and SIMONS, TITONE, BELLACOSA, SMITH and CIPARICK, JJ., concur. Page 30 - Hearin~'~l~ranscripts May 14, 1998 - Board of Appeals 7:56 P.M. - T. PETIKAS Carryover hearings from March 23, 1998: Proposed two- family use on a 21,000+- sq. ft. parcel in this R-40 Residential Zone District. Location of Property: Corner of the Westerly side of Sound Road and the Northerly side of North Road (C.R. 48), a/k/a Northerly end of Main Street). Greenport; 1000-35-1-8, which requires approval from the Board of Appeals for the following: (a) Special Exception Application No. 4525 as provided by Article III-A, Section 100-30A.2 for a two-family use/occupancy; and (b) Variance Application No. 4526 as provided under Section 100-31A.3 for the reason that the substandard lot size of 21,483 sq. ft. does not conform to the requirements for a two-family dwelling use in this R-40 Zone District; and (c) fence in excess of four feet height limitation within or along front yard aro~s, based upon the building inspector's February 10, 1998 Notice of Disapproval, Article XXIII, Section 100-231. CHAIRMAN GOEHRINGER: Mrs. Moore how are you tonight? MRS. MOORE: Fine, thank you. CHAIRMAN GOEHRINGER: What would you like to tell us. MRS. MOORE: Well I had a, I didn't want to put together some additional paperwork for the Board. I have for the last hearing but, didn't have a copy of it, I had gone to the Accessor's office and looked at all the properties, the surrounding properties in this area and identified the name of the owner as well as the square footage of the parcel and there are probably 25 names here. I would say 90% of the parcels that are on the Sound Road on the easterly side of Sound Road are half the size of this parcel. In fact, this piece was, you can tell from the survey that the old Van Tuyl survey was two parcels put together with regard to the size. I had submitted to the Board and I want to make sure it's being part of the record a Memorandum of law, I gave a copy with cases to the Town Attorney and I gave one full set which included the cases for any of the Board Members who wanted to review cases, otherwise it was just a Memorandum with a citation. The other thing we have tonight is a plan of the house. Mr. Petikas went to Penny Lumber and got a design of the type of house that he intends to build on this site. It's a standard two story house with one entrance, it is approximately, it's within the footprint of 50 foot wide by 30 foot deep. So, it wili probably end up being 48 x 28, Mr. Petikas tells me that, so we have a general footprint that's the design. Here we have five prints of the diagram and a tax map with ali of the identified property. Really the oniy outstanding issue and I know Page 31 - Hearing ~nscripts May 14, 1998 - Board of Appeals that you're aware of it is that we did check the Suffolk County Water Authority. The water main runs right in front of this property. You can't get any closer. We are obligated to hookup to the public water and we have submitted the letter to Suffolk County Water Authority but, they've written us back saying, until the time that the Town and the Water Authority complete a study which they anticipate will be done by the fall that we can't hookup our water whether it's a single family house or two family house, there's no hookup right now and I think they share the same problem as most people right now that are looking for building permits that unfortunately now when you're with public water it use to be an advantage and you got taxed with that advantage in mind, now it's a disadvantage because of the moratorium. But, the Suffolk County Water Authority I know is pursuing getting this moratorium lifted and the town is working actively. I explained to Mr. Petikas this project can't go without water and he's prepared if the Board should grant the approval then, it can be conditioned on public water because that is something that is necessary, both under the code and under the health regulations. So, we're prepared to do that. The only issue that seemed to be that was surprising to me, was the issue of the height of the fence. Mr. Petikas thought that a 6 foot fence made sense as part of the rear yard. Only for the rear yard and maybe that needs to be clarified. The rear yard is the back. If you face the house, the house in back wili be facing Sound Road. The rear yard will be right behind the house so that you w-iii actually have a side yard fence because the code is considered front yard. But, the side yard will be on Sound Avenue 48, a rear yard will be one of the neighbors and then another side yard. He's agreeable to something less than 6 feet. He certainiy believes that 4 feet is not sufficiently high to block out the noise and the light that comes on Route 48 and I know that the Board is certainly aware of the traffic on Route 48 and this will provide a nice secluded back yard with some fencing. He's allowed to have a 4 foot fence, but really, that won't cover the lights that shine by cars that go by and the noise. So, he's willing to take less than 6 feet, but certainly 4 feet is just not appropriate in this case. We're here to answer any other questions ~gou may have. MEMBER COLLINS: Mr. Chairman? CHAIRMAN GOEHRINGER: Surely. MEMBER COLLINS: Mrs. Moore, I was looking at the drawing as you were talking about the fence and the side yard and the rear yard. MRS. MOORE: Which one, the survey? MEMBER COLLINS: No, this is the survey with the project drawn in on it. We've had this for quite a while. MRS. MOORE: Yes, it's in your file. MEMBER COLLINS: Could you just taiking about. say again, what fences we're Page 32 - Hearing ~!~nscripts May 14, 1998 - Board of Appeals MRS. MOORE: Sure, let me come up. Can I come up and just show it? CHAIRMAN GOEHRINGER: Surely. MRS. MOORE: Sound Road is right here, North Road is right here. The house will be facing Sound Road, the rear yard is back here, OK, the fence will actually, Mr. Petikas tells me he only wants about 100 feet of fence. The property is 200 feet long. But, he only needs to fence the rear yard and he'd be happy to take that as a condition that the fencing of the rear yard up to 100 feet. So, we're talking about really the height requirement being imposed on this portion of the fence. MEMBER COLLINS: That portion of the fence that is adjacent to what is literally the rear yard of the house. MRS. MOORE: The side yard, well, the back yard. MEMBER COLLINS: That's why I was getting confused about it. MRS. MOORE: Technically, it's the side yard. MEMBER COLLINS: And then from that point down towards the Sound Road corner - MRS. MOORE: Sound Road, it'll be opened. MEMBER COLLINS: It'll be opened. MRS. MOORE: Yes, there's no- MEMBER COLLINS: This drawing shows a fence all the way down. MRS. MOORE: OK, he's willing to modify that. MEMBER COLLINS: The fence he cares about is the one that gives privacy in the back yard. MRS. MOORE: Mr. Petikas here? Let me show the drawing cause that was the original plan that was submitted in the - MR. PETIKAS: Good evening. CHAIRMAN GOEHRINGER: How are you? MRS. MOORE: See we had put in the fence like this. MR. PETIKAS: Oh, no, that's wrong. I'd like 100 feet from the north side of the west side of the house. CHAIRMAN GOEHRINGER: Alright, so I'm going to draw a line right here. Page 33 - Hearing ~nscripts May 14, 1998 - Board of Appeals MRS. MOORE: Yes, we can modify it. CHAIRMAN GOEHRINGER: Right there, line is drawn. MR. PETIKAS: That's has to be ail the have 200 feet to the front of Route 48. feet just to cover you know, the house area. BOARD SECRETARY KOWALSKI: From the road? CHAIRMAN GOEHRINGER: 100 feet from the property line. MR. PETIKAS: Because when you're a couple people, lights are going to heat right on the house that's why. MEMBER TORTORA: Parallel to the front property. alright, that's where the way uniformed becaus~ I I'd like to have just 100 west, west of the you know the MRS. MOORE: I'm glad you pointed that out because he had a, we went back and forth on where the location of the house would go. MEMBER COLLINS: Yes, because that's what we're working with. MRS. MOORE: The problem here, is that this property is sufficiently large that there's some flexibility on where the house can go and we can certainly say that the fence won't go beyond 100 feet. CHAIRMAN GOEHRINGER: Alright, now if as you know, we're missing a Board Member. He was excused for a specific reason and he'll be back. But, one of the questions was asked, do you still want the fence if we do not grant a two family house? MRS. MOORE: Do you still want the fence if it's only a single family? Yes, yes. If they say no to a two family, you have a single family house. You still want a fence? MR. PETIKAS: Yes. CHAIRMAN GOEHRINGER: done? Right, good. Ms. Collins are you all MEMBER COLLINS:; Yes. CHAIRMAN GOEHRINGER: Alright. Mrs. Tortore, questions? MEMBER TORTORA: Have you withdrawn your application for a area variance? MRS. MOORE: On the record, no, because it's of legai opinion that I think that the Board can determine that it's not necessary in this case. Page 34 - Hearing ~nscripts May 14, 1998 - Board of Appeals MEMBER TORTORA: Alright, thank you. So, that's in tact? That's all. MRS. MOORE: I mean that was my position from the beginning and in writing I stated it. But, in order to move this application forward I submitted it. We didn't want to delay that. MEMBER TORTORA: That was the only question. MRS. MOORE: OK. CHAIRMAN GOEHRINGER: So the area variance is still in tact? MRS. MOORE: Yes. CHAIRMAN GOEHRINGER: Mr. Homing? MEMBER HORNING: I'm all set. MRS. MOORE: As soon as you can get to this decision, we would appreciate it. CHAIRMAN GOEHRINGER:Alright, thank you. MRS. MOORE: Thank you. CHAIRMAN GOEHRINGER: You're welcome. Is there anybody else would like to speak in favor? Anybody like to speak against? Hearing no further comment I'li make a motion closing the hearing reserving decision until later.' MEMBER COLLINS: Second. Motion carried. See Minutes for Resolution. 41- Page Transcripts March 23, 1998-Board of Appeals 8:15 P.M. - THEODORE and MARIA PETIKAS CHAIRMAN GOEHRINGER: This is a request for a two-family use at the corner of W/s Sound Road and N/s Main or North Road (C.R. 48), Greenport; 1000-35-1-8, which requires approval from the Board of Appeals for the following: (a) Special Exception Application No. 4525 as provided by Article III-A, Section 100-30A.2 for a two-family use/occupancy; (b) Variance Application No. 4526 as provided under Section 100-31A.3 for the reason that the substandard lot size of 21,483 sq. ft. does not conform to the requirements for a two-family dwelling use in this R-40 Zone District; (c) Variance Application NO. 4526 for permission to locate fence at a height above four feet within/along front yard areas based on the Building Inspector's February 10, 1998 Notice of Disapproval, Article XXIII, Section 100-231. Alright, Ms. Moore, we're going to open both at the same time and you can address both at the same time. MRS. MOORE: Ail three? CHAIRMAN GOEHRINGER: Two variances and a Special Exception. MRS. MOORE: Just to be clear for the Board. In my last letter to the Board, I know that the Board has requested an interpretation from the Building Department or a Disapproval from the Building Department and the Building Department reviewed the file and in light of 100-244B determined that a variance is not required for the size of the parcel and that was based on a single and separate search (Change of Tape) is grandfathered with respect to the size. Area variances would on the other hand be required that we could not meet setback requirement for the structure whether it be a two-family structure or a single family structure. Both would meet the requirements of the code. Nonetheless because the Board has interpreted it that in an R-40, the 40,000 sq. ft. need require an area variance from the size, the lot size. I will present the arguments with regard to an area variance but I would submit that they are not applicable in this case. No variance is required for the size of the parcel. That being said, I will go through the standards for an area variance and I do have some of the presentation will be overlapped into the Special Exception. CHAIRMAN GOEHRINGER: The size of the parcel in the respect that the size of the parcel will support at the 21,000+, a one-family dwelling. Is that what you're telling me? MRS. MOORE: I'm saying that under 100-244, there is a grandfathering of the size of parcels as well as setbacks per parcel. Whether it be 42- Page - Hear~ Transcripts March 23, 1998-Board of Appeals a single family residence, or a two-family residence, as long as you can meet, as long as, one, the parcel was created prior to the zoning so it meets the standards of 244, and you meet the setback requirements in that provision, then, there should be no need for this particular area variance. That's the Building Inspector's interpretation as well as my reading of the code. However, the Board I believe in past experience has requested area variances of the R-40 or whatever the zoning criteria is that R-40 is 40,000 sq. ft. If it were R-80 it'd be completely different standards. So, I'll go over the area variance but I would submit that I don't believe that this would be applicable. I will nonetheless present the argument so we don't have a, what's that, Mrs. Tortora, did you have a question? MEMBER TORTORA: Yes, I think it's appropriate to say that ( ). We had some discussion about this, Mr. Chairman and I, and I confess that I was a little naive about the total requirements of this until he did call it to my attention, the Bulk Schedule - MRS. MOORE: Correct, yes. MEMBER TORTORA: The Bulk Schedule in the residential districts for a two-family detached dwelling, in the R-40 district requires an area of 80,000 sq. ft. MRS. MOORE: No. I have the same code in an R-80 it requires 120. I'm not aware of the R-40 requiring 80,000 sq. ft. MEMBER TORTORA: It's a rather an amazing thing, but, it a - MRS. MOORE: Well then it's inconsistent with the language in the code itself. So you understand though that you have the language in the code and then you have the Bulk Schedule. If there's inconsistencies between the two, the language in the code overrides the Bulk Schedule. I'd like to see the Bulk Schedule that you refer to because I don't recall seeing that. MEMBER TORTORA: The only thing is, he called it to my attention. I was totally unaware of it and you know he's been~on the Board a lot longer than I have, but it does say that a two-family detached dwelling R-40, 80,000 sq. ft. and then there is a ( ) it says, three little iii, after it says, Roman numerical ( ), applicable, ( ) in a Residential Bulk Schedule, you go to that and you come up with the Bulk Schedule under R-80 and there is some kind of consistency here because it also discusses that for a two-family detached dwelling in a R-80 District it's the requirements 160,000 sq. ft. MRS. MOORE: I'll review that. MEMBER TORTORA: I'm just letting you know rather than you know, going off in that direction. That is something that has been MRS. MOORE: OK, well I will, I will go over the, with respect to the area variance, the same standards. This parcel was created in 1952. These requirements came in long after the lot was created. With 43- Page - Heari~T~ Transcripts March 23, 1998-Board of Appeals regard to whether there will be an undesirable change in the character of this neighborhood, I will point out to the Board what you already know and for the record that this parcel will meet the setback requirements of the foundation. The footprint will meet all the required applicable setbacks of 244, which is the applicable section. With regard to the fence, the reason for the 6 foot high fence is that this parcel is right on Sound Avenue and requires the privacy as well as the security of having that road buffered. I think someone else mentioned today, this evening, that the noise from the vehicle, no different here on Route 48, there's certainly a great deal of noise as well as traffic that's generated by that, the noise is generated by the traffic. With regard to the benefits sought by the applicant, it cannot be achieved by a method feasible for the applicant. The Pet~kas purchased the property in 1985. That the parcel was purchased is on the Assessor's Record and they're here today to confirm it. If you have any doubt for $80,000. The parcel was zoned business at the time. During the period of time, from the time that they acquired title to the time that they completed their site plan, I have a site plan in the file, this zoning changed to R-40. So it was during that period of time that a significant financial hardship was created for Petikas. It certainly made a two-family residence would lessen the impact, the financial impact on that, in that at least as a rental unit with two-family rental, it can generate a return and be a much more desirable parcel than as a single family residence. This parcel has been there vacant and there has been, I don't know if you've actually marketed the parcel? Yes, it's been marketed for quite some time and never had generated any interest as a single family residence. I'll point out to the Board that you've got across the street, it use to be the Porky's, you still call it Porky's parking lot that's directly across from this parcel, you've got the entrance to Greenport, that's a very busy corner and it's on Route 48. So, it was appropriate as a business zone parcel but the Town Board at the time determined that they wanted to take business off Route 48, so be it. But, they did leave a two-family as a permissible use by special permit. With regard to the area variance it's not substantial. Again, this parcel had at one time been two separate lots. Up through 1984, it was sold as separate parcels. In 1985 when Mr. & Mrs. Petikas acquired it, they acquired it as one deeded parcel. So, at that time, it was merged as one piece. It was also business zoning, so there was certainly the development of the piece of two parcels made more sense. All of a sudden when the business zoning came off, now you've got an oversized residential parcel, oversized for this particular area. I can submit to the Board and I have my tax map but, I will transfer it for the Board so it can be more legible. All up and down Sound Road you have .25 acre parcels. You've got about 12-1/4 acre parcels. Right on to the north of Petikas is a parcel that is approximately 1700 sq. ft. and adjacent to the west of Petikas is another parcel. It's approximately 1200 sq. ft. CHAIRMAN GOEHRINGER: 12,000. MRS. MOORE: 12,000 sq. ft. 44- Page - Hear~ Transcripts March 23, 1998-Board of Appeals CHAIRMAN GOEHRINGER: Right and 17,000. MRS. MOORE: And 17,000, I'm sorry. Again across the street is still a restaurant where the parking facility, the parking facility directly across from the proposed residence and that further down the property that's known as LBD Properties is the proposed Brecknock Hall Development which is going to be a Senior Multi Care Facility. So, you're talking about an area that is for the most part commercial. Well, on Route 48 it remains commercial. This area was developed long ago and you've got parcels that are on average 1/4 size of this parcel. So, this is an oversize parcel for this vicinity for the character of this area. There will be no adverse impact on the physical or environmental conditions of the neighborhood or district. Again, this two family residence from the outside, be no different than a single family residence. They can certainly come into that if you place that as a condition of the property that and I discussed it with Mr. & Mrs. Petikas would there be any objection to having a one opening front door with the internal foyer going into the two dwelling units. They would have no objection to that. So, from the outside there would be no difference. Certainly this difficulty was not self created. Again, the parcel was purchased as a business parcel. It was up zoned during the time that they owned it. Shortly after they acquired it and it has remained in their ownership since the 1980s as a residential lot and there it remains as a vacant residential lot. I requested from Century 21, an idea of what the, in the opinion of Robert Scalia, what this parcel would be worth if it were simply a single family residence. He has presented me with an opinion letter that he states that the' value from $40 to $45,000 would be what this parcel could generate as far as a resale. So, you're talking about a ( ) when the parcel is up zoned, it's lost half of its value and right now this letter comes to me February of 98. The values of properties certainly have stabilized and are increasing, but again, the location of this parcel is not conducive to a single family residence. Certainly not one to generate $80,000 return, which even losing some money that's a significant loss. Half the value of the property. With regard to the special permit conditions, again the use will not prevent orderly or reasonable use of the adjacent properties or properties in adjacent use districts. This parcel is R-40 which is a higher density zoning classification. It is across from the restaurant, down the street from the Brecknock Hall Development, and double the size of most of the parcels that are developed on this street and up Sound Road. The second criteria that the use will not prevent the orderly use of 'permitted or legally established uses in the district. Well again, these are uses that have been established, that don't necessarily conform to the zoning and we have a restaurant across the street, that would of, probably is preexisting at this point. But without any evidence of going away. We have quite a large parking area. That the use will be in harmony and promote general purposes intended of this chapter. The footprint that's being proposed is one that again meets all the setback requirements and is a ( ). The proposed footprint would be approximately 50 feet by 30 feet. We might create a footprint that can be a reasonable footprint to construct a comfortable two-family 45- Page - Hear~ Transcripts March 23, 1998-Board of Appeals home, again looking the same as a residential, as a single family residence but, with the only difference being that instead of four bedrooms for one family, it would be two bedrooms per family. Use will be compellable with surrounding, with its surroundings, the character of the neighborhood. Again the same criterias that were applicable with the area variance are standards that we should consider for special permit. The Town Board in legislating that two-family use, recognized that this use would be appropriate in R-40. If you have any questions Mr. & Mrs. Petikas are here and I have the letter from Century 21 for the record. CHAIRMAN GOEHRINGER: I know Mr. & Mrs. Petikas very well from prior applications. I just want you to review that section that we were concerned' about because this is an area that in 1989 when they constructed the master plan Mrs. Moore that I had objected to. I had asked them to lessen the square footage of two-family houses in both R-40 and R-80. I specifically asked for 60,000 sq. ft. in 1988-89 for R-40 and I asked for 120,000 sq. ft. for R-80, meaning not doubling it, taking another 40 and putting on, excuse me, another 20 in the 40 and another 40 in the other and the reason why we locked at this, is, we had a special meeting last week and we looked at the criteria at that time and that's when we arrived at that particular judgment. MRS. MOORE: If I could just interrupt you for just one moment. CHAIRMAN GOEHRINGER: Yes. MRS. MOORE: I believe that the wrong classification has been pointed out to you. We have community water. R-40 says here, residential low density, one acre, two-family detached dwelling. Two-family dwelling without utilities, that meaning without sewer, without water would require 80,000 sq. ft. This particular unit has public water. Therefore two-family dwelling with community water, it says not applicable. So that I don't believe that that 80,000 sq. ft. would be applicable in this particular instance because you do have public water and I would refer you back to 244 which deals with the setbacks as well as the standard schedule R-40 which deals with lot size. CHAIRMAN GOEHRINGER: We have never excluded anything though for public water and I just don't know. MRS. MOORE: I mean that's the way I read it and it seems to be pretty - MEMBER TORTORA: Usually when it says not applicable it means that a, unless, because it says public sewer and water and in some cases it drops the ( ), MRS. MOORE: Well it would make sense that your - MEMBER TORTORA: But they didn't, they didn't in this case so that's why - 46- Page - Hear~5'g Transcripts March 23, 1998-Board of Appeals MRS. MOORE: I think not applicable means that that particular section does not apply. CHAIRMAN GOEHRINGER: Right. MRS. MOORE: It would make sense 80,000 sq. ft. would be necessary if you had to provide potable water for essentially two units in an acre. But, it doesn't make sense if you've got public water, you don't have a Health Department constraints that a MEMBER TORTORA: The other part of that - CHAIRMAN GOEHRINGER: Can I just ask a question? moratorium on water in the Village of Greenport. Is there still a MRS. MOORE: Well, it's, well the Suffolk County Water Authority has now purchased lt. There has been a on going application process where an individual applicant comes forward to the Suffolk County Water Authority and they deal with each applicant on an individual basis. So, they said moratorium, however, there have been applicants that have been granted water as I said individually. CHAIRMAN GOEHRINGER: Alright, go ahead you have something else? MEMBER TORTORA: No. CHAIRMAN GOEHRINGER: You want to give us a brief on your opinion in re~erence to what, I know you've scaled it, but, give it to us so we can review it with the Town Attorney prior to. MRS. MOORE: Sure, which part of - CHAIRMAN GOEHRINGER: Indicating the reference to what you just stated water as opposed to public water. fact of what your opinion is in on the availability of potable MRS. MOORE: That's fine I'll go back to that. CHAIRMAN GOEHRINGER: Alright and we'll review it with her. So we'll close the hearing as per verbatim testimony tonight. When you give us the brief, we'll review it with her, and then close it as a matter of record on April 16th. MEMBER TORTORA: Because it does make a difference only because not - MRS. MOORE: I looked at that section and that to me is not applicable, so. CHAIRMAN GOEHRINGER: Can you get us a letter from Suffolk County Water Authority? MRS. MOORE: What that they're - CHAIRMAN GOEHRINGER: That they can offer water here. 47- Page - Hear~ Transcripts March 23, 1998-Board of Appeals MRS. MOORE: so. But you do have your public water in front of the site, CHAIRMAN GOEHRINGER: Well, that's what I'm saying. MRS. MOORE: I mean you can't build, you can't get a Building Permit without public water. CHAIRMAN GOEHRINGER: Well, I mean but, can you just give them a call and ask them if they - MRS. MOORE: Yes, sure, I mean I can give them a call. CHAIRMAN GOEHRINGER: Alright. MRS. MOORE: But without a specific application I mean - CHAIRMAN GOEHRINGER: I mean I find this, please in no way am I, I know these people very well, in no way questioning this. We had never made a determination except under business aspects a potable as opposed to public water. I just don't ever remember doing that. Do you know what I'm saying? In other words, I'm saying that MRS. MOORE: Oh, a two-family is single - CHAIRMAN GOEHRINGER: That that has never been a justification for granting more relief, or less relief, or granting a special permit unless we're dealing with a condo project, unless we're dealing with you know, a resort residential project, or we're dealing with, you know some other type of more intense project. MRS. MOORE: I know what you're saying, but I look at the code and it says under R-40 two-family, and in fact, the Building Inspector said, ooh, if you were in an R-80, you'd have 180 sq. ft. of, 180,000 sq. ft. But, that's not the case in this a, in R-40. At least the Building Inspector looked at that as well and we all looked at it together, But, I'll be happy to put it in writing and submit to your Board. CHAIRMAN GOEHRINGER: We'll start with Mr. Dinizio? MEMBER DINIZIO: Well, I have a little bit of a problem with a 6 foot fence in that corner. I was late tonight and the reason why I was late is because I had to wait for that ferry traffic. You know, there was many a time I thought, well maybe I'll just pull out MRS. MOORE: And risk your life. MEMBER DINIZIO: I'd hate to hit that fence after someone hit me in the rear. But, I'm just wondering if the fence can be somehow scaled back. I mean it's almost right at the corner now. MRS. MOORE: The height of the fence reduced down? Is that what you said? 48- Page Hearl~5'g Transcripts March 23, 1998-Board of Appeals MEMBER DINIZIO: Yes. MRS. MOORE: I think we just started wherever the house, the rear of the house would begin. I think once you put the foundation in, we would put a 6 foot fence where the rear of the property. If you want to scale it in, you know, start it at 4 feet and bring it up to a certain level, do you have any problem with that? MR. PETIKAS: No, we have no problem. MRS. MOORE: Yes, I think that's the least. They would have no problem with a, 6 foot fence it just seemed that, that was a good way of creating a buffer, but, if you want to grant a 5 foot fence. MEMBER DINIZIO: What about a garage? MRS. MOORE: The garage is going to be detached garage, in the rear of the yard. So, it would have to meet whatever the accessory setbacks. MEMBER DINIZIO: But it looks like it's in the front yard to me. BOARD SECRETARY KOWALSKI: No, it's the rear yard. MRS. MOORE: It's going to be located at least 50 feet from Sound Avenue. So it'll meet the 50 foot front yard setback of the ( ). BOARD SECRETARY KOWALSKI: 50 feet from the north road, you mean. MRS. MOORE: Yes, the north road. MEMBER COLLINS: You may have two front yards? MRS. MOORE: Yes, we have two front yards and as long as we meet that 50 foot setback there's no need for a variance. When we mapped out - MEMBER DINIZIO: Could you say that again please? that. Could you say that Just one more time? I don't understand MRS. MOORE: Sure. MEMBER DINIZIO: About the garage. MRS. MOORE: The garage is going to be MEMBER DINIZIO: The 50 feet. MRS. MOORE: The 50 feet, OK. The garage is going to be in the rear yard. But that, this property because it's a corner, has two front yards being Sound Road and 48. The front yard is the setback requirement. We have two front yards, so therefore, we have two front yard setbacks, 50 feet. So that means that this garage is going to have, rather than be located closer to Sound Avenue, it has to be closer to the other side. So whether it's right behind the 49- Page - Heari~J' Transcripts March 23, 1998-Board of Appeals house at 50 feet, or over some. The parcel is somewhat of an L shape, so there's room to put the garage over on the other side and they had no problem with where to locate the garage. CHAIRMAN GOEHRINGER: Ms. Collins? MEMBER COLLINS: Yes, I also noticed in fact talking about the traffic on the corner, that the fence is in fact drawn in a way that does comply with the code's requirements about fences on corners. MRS. MOORE: Oh, yes. MEMBER COLLINS: So I think it is back a bit out of the way. Let me ask you a question about the lot creation because your argument rests really very squarely on the provisions in the code for nonconforming lots that predate zoning and they're two dates that are floating around in this record. One, is 1952 and the other is 1985, and I sought of went back and forth as to which date was which, and you said something tonight that suggested that the two lots had merged only in 1985. That the two lots individually had been created way back before the war probably. MRS. MOORE: Correct, correct. MEMBER COLLINS: But that they had only merged in 85 and I think that the language in the code about recognition of these old nonconforming lots speaks of the identical lot and I'd just like your views on that issue. MRS. MOORE: Right. We have, at the time I made the application, Petikas, I only had their deed and the property card. So what we did is, said that based on the code that says after certain date, if two parcels were next to each other and they were in the same name, they would be considered one. So with the application as it was submitted, we said, well we know we've got one parcel and we're not even, you know, we're certainly not arguing that fact. When the Building Inspector said, well when this lot was created as significant, because it'll depend, the law will depend on when this lot was created. We did a single and separate search and we discovered that the property card says this and I think the single and separate search is already in your file, I just don't have it in front of me. But, in 49, Scolly conveyed to King. King is really the relevant owner. King in 52 conveyed his interest to Straussner. So in 52, Straussner by separate deed you ended up having, it says here in the property card, easterly parcel 100 feet and westerly parcel 100 feet were combined in 52. Then from 52 on even though in 84 Sfaelos Realty conveyed to Sfaelos two separate lots. At that point they had merged. So they had deeds that were conveying the parcels as separate parcels but, even at that time the parcel had merged. And then Petikas acquired the parcel in 85, certainly as one parcel. In fact, I have a site plan or the survey that you probably have, Van Tuyl, the old Van Tuyl survey identified it as two, shows the separate property dimensions. It shows the line between them. 50- Page - Hear~'g Transcripts March 23, 1998-Board of Appeals However, back from 52 on this parcel was one legally recognizable parcel. MEMBER COLLINS: Yes, thank you. That confirms what I thought I was reading on the property card, but, I was getting a little lost and that is important that the parcels were treated as one since 1952. MRS. MOORE: Yes. CHAIRMAN GOEHRINGER: Was the easterly piece? entire business zoned, or just the MRS. MOORE: To my knowledge, it was the entire parcel. I mean we have a site plan. In fact, I have it my file. If it will be helpful to the Board, I can certainly submit it to the Board. It's not useful to Petikas anymore. A site plan that showed a foundation pretty much straddling the property, the old property lines CHAIRMAN GOEHRINGER: I remember seeing that. BOARD SECRETARY KOWALSKI: We have it in our file. We never went into or not submitted, it MRS. MOORE: Oh, you have it in your file? OK. the details of when, whether it was submitted, seemed irrelevant at that point. CHAIRMAN GOEHRINGER: Mrs. Tortora? MEMBER TORTORA: No. CHAIRMAN GOEHRINGER: Nothing? Mr. Horning? MEMBER HORNING: Nothing at this time. So, you're going to give us that the Town Attorney. If need be, and have to readvertise, but if we have CHAIRMAN GOEHRINGER: Alright. brief we're going to review with we have to readvertise, we don't to reconvene, alright, MRS. MOORE: Why don't we hold the hearing open? CHAIRMAN GOEHRINGER: Alright. MRS. MOORE: OK, so that way it's clear we don't have to readvertise notice to all the neighbors. That way, if you have any questions with regard to the memo, I can certainly be here to answer them. CHAIRMAN GOEHRINGER: Alright. We are inundated on April 26th, so it may have to be the early May meeting. BOARD SECRETARY KOWALSKI: It will have to be May 14th. MRS. MOORE: OK, so be it, sure. 51- Page - Hearm Transcripts March 23, 1998-Board of Appeals MEMBER DINIZIO: Can I just make a comment? CHAIRMAN GOEHRINGER: Sure. MEMBER DINIZIO: I'd really like you to consider that fence and just where it is, and how far west you can take the end of that fence, away from Sound Road. How far away from Sound Road that fence can be located. I'd really like you to consider. MRS. MOORE: I mean we'd be willing, I mean if you have a particular idea in mind you can certainly MEMBER DINIZIO: My preference would be, not to see the fence at all. So we'll start from that point and work our way to - MRS. MOORE: Mr. Petikas would like to address that. MR. PETIKAS: Well the ( ) I'd like to have 100 feet from the west side of the property from Route 48. Also on the back of the property another 100 feet from north side of the property just to hide the house. I don't want to put any fence on the corner of Sound Avenue, on side of road. MEMBER DINIZIO: No, I'm not worried about that. I'm worried about, it looks like there's a fence on the north road. Is that right? MRS. MOORE: On 48. Yes, that would be the reason for the fence. MEMBER DINIZIO: That's what I'm concerned about. going to be 6 feet high? That's what he's proposing? That fence is MRS. MOORE: Well, they'd like to have it 6 feet high. MEMBER DINIZIO: Right. That's why I'd like you, you know, between now and the next time we meet, to consider - MRS. MOORE: Well 4 feet is legal. MEMBER DINIZIO: Yes, yes, I agree. MRS. MOORE: I mean would there be any problem with that with them seeing the outside? (I believe she was asking the question to her clients). MEMBER DINIZIO: site. No, I'm not worried about that. I'm worried about MRS. MOORE: But if you put arborvitae or some kind of bushes on the outside on Sound Avenue - MEMBER DINIZIO: I'm not worried about how it looks. about seeing over or not being able to see over. I'm worried MRS. MOORE: Not being able to see over. 52- Page March 23, Hear~g Transcripts 1998-Board of Appeals MEMBER DINIZIO: Right. So that's why I'm saying if you get - MRS. MOORE: I think that's why they want the fence, you can't see over. MEMBER DINIZIO: Yes, but they're asking for trouble. MRS. MOORE: OK. Someone asked if they can speak? CHAIRMAN GOEHRINGER: Just one second Sir, I'll be right with you. Is there anything else you wanted to say. MRS. MOORE: No thank you. CHAIRMAN GOEHRINGER: Yes Sir. Would you state your name for the record. MR. RAYNOR: Yes. Charles Raynor. CHAIRMAN GOEHRINGER: How do you do? MR. RAYNOR: Sophie Raynor's husband. Both parcels at one time use to be Krzyminski and the corner was Mobile on Sound Road corner. Natsoulis' property, right next to this property, and we can't see having a 6 foot fence, can't see over the top of it. CHAIRMAN GOEHRINGER: No, don't worry, we'll take care of that. No question about that. 'Don't worry about that, one bit. MR. RAYNOR: If you hit that road on 48, forget it. CHAIRMAN GOEHRINGER: You're absolutely correct. Don't worry about it, we'll take care of it. I assure you, alright. Hearing no further comment I'll make a motion, oh, I'm sorry, ma'am. MRS. NATSOULIS: Yes, my property is right next to their property and I have some concerns about it - BOARD SECRETARY KOWASLKI: Can I have your name? CHAIRMAN GOEHRINGER: Yes, we need your name. MRS. NATSOULIS: I'm Annette Natsoulis. I'm north of the Petikas' property and one of my main concern is the fence. Going on to the north road, the main road, is very difficult with the ferry coming through to make a left turn to go eastbound. Especially when you're pulling a trailer behind you also. I'm not sure as to what they were saying, going for setback of the house. It'll be further back from Sound Road, is that correct? CHAIRMAN GOEHRINGER: That is correct. Have you seen the site plan at all? 53- Page - Hearl~ Transcripts March 23, 1998-Board of Appeals MRS. NATSOULIS: Yes I have. The way I see it, with the house being built over here, my house will be this way to it. I feel that my privacy with a two-family dwelling will be inconvenience because they will have to ( ) access in going directly into my patio which I spend most of the time there. CHAIRMAN GOEHRINGER: I just want to caution you, that we haven't gotten to the two-family yet, alright. We're still working on that. MRS. NATSOULIS: Well the fence I'm concerned, that is one of my biggest concerns. CHAIRMAN GOEHRINGER: Alright. We promise you that on May 14th, that we will do a siting ourselves and tell you because Mr. Dinizio, we have the luxury of having him live down in that area and he fronts that road sometimes 4 times a day making right and left turns and so we will do a siting and we will tell you what our opinion is in reference to the setback of the fence. MRS. NATSOULIS: OK, because I come in from Queens. CHAIRMAN GOEHRINGER: Alright. Can you make the May 14th hearing. MR. RAYNOR: Definitely. MRS. NATSOULIS: No problem. MR. RAYNOR: Even a three foot fence by the corner would be too much because the cars sit and they look out, you're not able to see. Impossible. CHAIRMAN GOEHRINGER: Right. The new cars are lower and lower and it makes it more difficult to see. MR. RAYNOR: Even a three foot fence would be too much. Even a six foot fence from outside of the property, then they block our view to the main road. CHAIRMAN GOEHRINGER: Well, what we do in some cases and what we have done before is clip the corners of the fences and made them put them on angles. As I said, we're not quite there yet. We do appreciate your coming and you know, we're going to review this whole matter and we'll get back. MR. RAYNOR: What day did you say? BOARD SECRETARY KOWALSKI: May 14th. CHAIRMAN GOEHRINGER: May 14th. MR. RAYNOR: Are you going to inform us or do we have to 54- Page - Heart~5'g Transcripts March 23, 1998-Board of Appeals CHAIRMAN GOEHRINGER: approximately a week is. (765-1809). We're not going to inform you, but call us before and we'll tell you exactly what the time MR. RAYNOR: Thank you. CHAIRMAN GOEHRINGER: Thank you Sir. Hearing no further comment I'll make a to May 14th. Anybody else like to motion recessing the MEMBER DINIZIO: Second. Motion carried. See Minutes for Resolution. speak? hearing APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman James Dinizio, Jr. Lydia A. Tortora Lora S. Collins George Homing BOARD OF APPEALS TOWN OF SOUTHOLD Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 ZBA Fax (516) 765-9064 Telephone (516) 765-1809 May 4, 1998 Patricia C. Moore, Esq. Moore & Moore P.O. Box 483 Mattituck, NY 11952 Re: Applications (Petikas) Dear Mrs. Moore: This is just a reminder that the Beard has not received the Memorandum requested at the March 23, 1998 hearing which outlines your legal opinion and basis of law. The hearing was expected to be finalized on May 14, 1998, with poasible member questions following review of your Memorandum. Thank you. Very t~uly yours, GERARD P. GOEHRINGER CHAIRMAN cc: Beard Membere PATRICIA C. MOORE Attorney at Law 315 Westphalia Road P.O. Box 483 Mattituck, New York 11952 Tel: (516) 298-5629 Fax: (516) 298-5664 Margaret Rutkowski February 25, 1998 Southold Town Zoning Board of Appeals Mr. Goehringer, Chairman Southold Town Hall 53095 Main Road Southold, NY 11971 Re:Petikas Special Use Permit Dear Chairman and Board of Appeals: The above referenced application was filed with the board on or about October 22, 1997. At your request, on or about November 17, 1997 I submitted to the building department a building permit application for the above referenced matter together with a single and separate title search. The single and separate search stated that the subject property was created in 1952 and was owned by Edward H. King. The building inspector, Gary Fish questioned why I would submit the building permit application for a denial since on a Special Permit application the Zoning Board has original jurisdiction pursuant to Town Law 274-b. Nevertheless the building department issued a denial of a building permit for the fence height on February 10, 1998. In the opinion of the building inspector, Gary Fish, since the subject property was created in 1952 (prior to zoning), is a legally created nonconforming lot, the principal building is required to conform to 100-244 (B). The proposed structure will conform to the setbacks in the bulk schedule of 100-244(B). Therefore no area variance is required other than for fence height. The two-family structure will be no different in size and use than a standard single family residence. The Building Department's position with regard to the issuance of a building permit application with Health Department approval is irrelevant to this application since the Special Exception use should be made directly to your board. If you have any questions, or request any additional documents please do not hesitate to contact me. Very truly yours, / ~ Moore cc: Mr. & Mrs. Petikas Gary Fish Page 2 - Minutes SpeniRI Meeting of March 3, 1998 Southold Town Board of Appeals RESOLUTION: AGENDA ITEM II. A. MARCH 23, 1998 HEARINGS. On motion by Chairman Goehringer, seconded by Member Dinizio, it was RESOLVED, to authorize advertisement of the following ten (10) /~__~ applications for public hearings to be held March 23, 1998: Appl. No. 4550.1t - RUTH MILLER. This is a request for a Vari-nee based upon the Buli~ing Inspector's Notice of Disapproval to locate a proposed dwelling addition with reduction in sideya~ds. Looation of Property: 6400 Indian Neck Road, Peconie; County Parcel 1000- Appl. No. 4549 CAROL and ANTHONY LOSQUADRO~ JR. and DONALD TUTHILL. Variance based upon two Notices of Disapproval for housing and corral location for up to two horses. Location of Property owned by Losquadre and Tuthill, 3125 Boisseau Avenue, Southold; 1000-55-5-12.2. Appl. No. 4547.1t - RIVERHEAD BUILDING SUPPLY. Variances for width of new building/warehouse areas and fence height. Front Street, Greenport. Appl. No. 4551.1c I~AYLA B. STOTSKY. Variance regardlng proposed six ft. fence height. Osprey Neck Road, G~eenpo~t. Appl. No. 4548.1c - JEFFREY WORTHINGTON. Variance for garegs location. 1025 Long Creek Drive, Southold. Appl. No. 4553.1t - CHET ORLOWSKI. Var4nnee for replacement of two windows with garage door regarding nonconforming use based upon Building Inspector's 2/20/98 Notice of Disappreval 100-241-A. N/s l~nln Road, Cutchogue. Appl. No. 4552.jd G. and MADELINE LIVANOS. Varlnnce for proposed setback/portion of garage area at 555 Sound Beach Drive, Mattituck. Appl. No. 4068.jd - ELEANOR SIEVERNICH. Carryover for final hearing. Variance regarding proposed division at 3200 Cox Neck Road, Mattituck. 1000-113-8-5. Appl. No. 4562.1t and 4525-SE.id - THEODORE PETIKAS. Va~nce under Article III-A, Section 100-30A.3 (bnlk schedule) as to lot area of 21,483 sq.ft, in this R-40 Zone for a two-fgmily occ~tpanc~ var;ance under Article XXIII, Section 100-231 based on February 10~ 1998 Notice of Disapproval by the bufldin~ inspector re~r~ing proposed fence height, and Special Exception for a preposed two-fnmily dwelling. Location of Property: Corner of 69435 C.R. 48 and Wis Sound Road, Greenport. 1000-35-1-8. VOTE OF THE BOARD: AYES: GOEHRINGER, DINIZIO, and COLLINS. (ABSENT WERE: MEMBERS TORTORA AND HORNING.) This RESOLUTION was duly ADOPTED (3-0). AGENDA ITEM II, Continued: B. Other ZBA New AppHoations Confirmed (Pending Inspections, reviews, etc.) and tentatively calendared for April 16, 1998 public hearings subject to receiving the information on or about 3]20: *Appl. No. 4544.1t - H. ROSEN (site owner: Booker). The Chairman indicated he reeentiy visited the site. He was told by Mr. Rosen recently that he has a business in or near Oce~n;ide and will be sendfng a cel)¥ of hi; FCC license and other req.u, ested. ~f. or.m~tio..n., through his~ Page 4 - Minutes Special Meeting of March 3, 1998 Southold Town Board of Appeals AGENDA ITEM V. NEW ZBA FILING PROCEDURES EFFECTIVE 2/26/98: The Chairman read and confirmed the following new ZBA procedures: a) Submissions by applicants must include current written Notice of Disapproval (before assigning board member or file number). Incomplete ZBA applications in future will also be returned to applicant; b) After assignment of Spenlal Exceptions to Assigned Members, projects will now involve preliminary review by Assigned Member and RESOLUTION eenfilwning Sections of Code and type of area variance(s) to be included which may be necessary, before authorizing advertisement. filing AGENDA ITEM VI. 1. Assigned File #4542.1c (Walter Fink/Ken Swanson by Suffolk Environmental Consultln~) has been ineemplete since January 28, 1998, due to laek of a written Notice of Disappreval by the Building Inspector. However, based on the new policy of the Building Department, the application has been incomplete with their office; therefore, a Notice of Disapproval will not be issued until all other agency approvals are submitted for the proposed dwelling to the building department. The Boar~ Secretary said Mr. Anderson called the ZBA office on Friday, February 27, 1998 and advised that he lost the project (the buyer was not interested in going through the extra expenses involved to obtain a notice of disapproval). A letter was drafted for return of the variance papere to Mr. Anderson. There was no objection or further discussion. ' 2. Assigned File ~4526.1t - T. PETIKAS. The Board eenfirmed that /the variances authorized for adverti~..in~ were for the lot area and the fe?.ee height. The attorney for the applicant eeufirmed through the ZBA office that the setbacks would conform to the appropriate bulk schedule for a two-family use, if the special exception were to be granted. There .w~ no o~jeetio.n to the wording as noted in the agenda, and adopted m the "~l~esolution above at Agenda Item II-A. DELIBERATIONS: Re: Appl. No. 4538 MICHAEL RAND. The Board decided to hold further deliberations and decision until a full Board was prosent (3/23). Agreement was not reached at this time. There were diseussions about a possible denial, and then about possible conditions ff Page 7 - Minutes Regular Meeting - February 26, 1998 Southold Town Board of Appeals *REMINDER 'for Resolution at next meeting for draft Minutes: January 15, 1998 January 22, 1998 February 4, 1998 February 26, 1998. * New procedures of the Building Department as per letter stating that all agency approvals before ~eeeiving applications for disapproval. (Exceptions are proposed lot line cbAnges or new subdivision projects. ) * NEW ZBA FILING PROCEDURES EFFECTIVE 2[26: 1) Submi-~sions by applicants must include current written Notice of DisaPproval (before assigning board member or file number). Incomplete ZBA applications in futuro will also be returned to applicant; 2) After assignment of Speais! Exceptions to Assigned Members, project will require prelimlnr~ry review by Assigned Member and RESOLUTION confirming Sections of Code and type of area variance(s) which may be necessary, beforo authori~ng advertisement. * Assigned File #4542.1c W. FINK and KEN SWANSON, contract vendee. Proposed letter as drafted to Bruce Anderson regarding eepy of letter received from Building Department (copies attached for board members). 1390 Willow Terraee Lane, Orient. 1000-26-2-25. /~ * Reviews. New applicatio.ns: Appl. #4525.jd - T. P.ETIKAS /Spe~Al Exception and Appl. #4526.1t - T. P~.-r[KA. S Area va~A..nces~, (Carryover to next meeting for Board's review and eol~..l~n, eu wording of advertising rogarding area variances, before advertising. (Recent Noiice of Disapprov~! fu_,mt~hed addressed fence po~ti.o.n of project but did not address ether zoning areas because applicant filed Special Exception.) * OTHER REVIEW: New proposed Local Law regarding Site P!nn~. (Copy in board member boxes 2/25); * OTHER REVIEW: Await status from attorney for application regarding pending application of TonYes/Citgo., For update at next meeting. The Ch~i~mmn declarod the meeting adjourned at 10:30 p.m. SOUTHOLD TOWN ]BOARD OF APPEALS MONDAY, MARCH 23,1998 NOTICE IS HEREBY }IVEN, pursuant to Section 267 ,fthe Town Law and the Code the Town of Southold, th~ bllowing applications will be teld for public hearing by the ;OUTHOLD TOWN BOARD )F APPEALS, at the Southold Cown Hall, 53095 Main Road, ;outhold, New York 11971, on vlONDAY~ MARCH 23, 1998 it the times noted below (or as ;oon thereafter as possible): 6:35 p.m. Appl. No. 4550-n,~ ?~UTH MILLER. This is a re/r :luest for a Variance based upon :he Building Inspector's January Zt, 1998 Notice'ofDisapprova! .o locate a proposed dwelling ad- dition with reduction in total side yards. Location of Property: 5400 Indian Neck Road, ?econic; County Parcel 1000-86- 7-2.2. 6:40 p.m. Appl. No. 4549- CAROL and ANTHONY LOSQUADRO, ~JR. AND DONALD TUTHILL'.' Varl- ~ upon an application' to erect a corral to an existing barn, and February 13, 1998 Notice of Disapproval which reads "...horses shall not be housed within forW (40) feet of~I) any lot line· Article III, Section/' 100-31 C(8); and Notice of Dis: approval dated February 18. 1998, Article III, Section 100- 31A2Co), that'the vacant property located in a General Business {B) dis~ict, requires 10 acres or more for keeping of horses, Afficle III, Section 100-3 IA-2(b)..." (Also ref. Sections [00-10IA-1 and 100-101C.) Applicants are pro- posing corral location, including existing barn, for up to two horses as an accessory to their residence of Carol and Anthtny Losquadro located at 2855 Boisseau Avenu&, Southold, NY; Parcel 1000-55-5-12.1. A portion of the cOrral/fencing would extend ontoa portion of .~ vacant property of Donald? Tuthill, known as 3125 Boissead Avenue. Southold, 1000-55:5- 12.2. 6:45 p.m. AppL NO. 4553 - CHESTER ORLOWSKI. This is ~ variant6 based Estate; 1000-99-1-23. 6:55 p.n~pl. No. 4068- ELEANOR'~I EVERNIC I~. This is a carryover hearing re- garding a request for varihnce(s) in this pending division project (proposed two Iota), Article XXIII, Section 100-239 and Ar- iicle III, Section 100-32, as to. total lot size in this R-80 Zone//\ District. Location of Property: 3200 Cox Neck Road, Mattituek;, 1000-113-8-5 containing 163, 997 sq. ft. 7:00 p.m. Appl. No. 4551- KAYLA B. STOTSKY. This is a request for a Variance based upon: the building inspector's February 9, 1998 Notice of Dis- approval, Article xxm, Section 100-231 -A, Applicant is propos- ing a fence at a height in excess of four feet along the front yard area(right-of-way/property line) at 335 Osprey Nest Road, Oreenport; !000-3576-33; alsb known as Lot #6, Seoti0n 1, Mop of Cleaves Point. 7:05 p.m. AppL No. 4548- JEFFREY WORTHINGTON. This is a request for fi variance/ based upon the' 'building inspector's Januory 20, 1998 Notice of Disapproval to con- struct an accessory building (ga- rage) on the "as built" founda- tion, which is located in a side yard area, Article III?A, Section 100-33. Location of Propefff: 1025 Long Creek Drive, Southold; 1000-55-3-28; also known as Lot 12. Map of Yennecotl Park. 7:15 p.m. THEODORE and MARIA PETIKAS. This is a request for a two-family use m the comer of w/s Sound Road and n/s Main or North Road (C.R. 48), Greenport; 1000-35- 1-8, which requires approval from the Board of Appeals f_or/' the following: a) Special ExeepQon Appli- cation No..~,5 as provide~l by Aaicle III-A, Section 100-30A.2 for a two-family use/occupancy; and b) Variance Application No. ~ as provided under Section 100~31A.3 fo~the reasorfthat tho substandard lot size of 21,483 scl. ft. dot~ nOt 6bnform io the re- quiremen[s for ~' ~t~vo~family dwelling'use in th~s'R40,zone District~; and c.) ,fene,¢;in, exCeSs o. ,fo~r:[. upon the Buildi~g.~impector'$ heighl~m!t~iorDVithi~.oiidong Feb~ 20, 1~8~ of D~ front, -- o~ u on ~e a royal ror,m p ~ .... pP .... bmldm~Ps Feb~ 10; tof~ow ~aw~m .... ~nine a nonco~omin~ Uso UClO.~ll, ~tion 1~231.~~ Artic~.XXiV;=S~tio~l~2 7:40 p.m. Appl. No. 4~7-. 241A. 35315' Main Road, Cutchogue; 1,000-97-1 - 14. 6:50 p.hl. Ai/~l. No 4552- GEORGE LIVANOS. This is a request for a Variance .Based upon the Building Inspector's q9 February I t: 1998 Notice of/p Disapproval Article IliA. Sec-' tion 100-30A.4, fora reduction in the proposed sideyard setback at a comer portion of proposed accessory building (garage). Lot Size and Zone: 7500y, sq. ft.: R- 40 Zone District. Location of Property: 555 Sound Beach Drive. Mattituek; also known as RIVER}IEAD BUILDING SUPPL ,Y,. This i~ a Teqh~bt f61' ~ variance b~ed' up6n ~e B6ild- ing l~p~offa J~o~ ~, 1~98 Notic.g..0f Di~ppd~al; which ma~. m ~ollows: ?~,l).~p~- posed stmc~e ~ boated in an LtO DisMct is ~miRed to have a m~imum of 60.{,et of ~nmge on one s~t:.Tbe pro- pos~ building is approximately 115 f~t facing Rt. 25, A~iele XHI. Section 100-133C;' 2) When fences ~e'locmed in or along s~de ~d'~ yar~, ~y shall not exceed 6~ feet in height, pumu~t to 1~-231B..." COUNTY OF~FFOLK STATE OF NEW YORK ss: Patricia C. Lollot, being duly sworn, says that she is the Production Coordinator, of the TRAV- ELER WATCHMAN, a public newspaper printed at Southold, in Suffolk County; and that the no- tice of which the annexed is a printed copy, has been published in said Traveler Watchman once each week for / ., . ..-. weeks successively, commencing on the ....../...~......'~.. day oJ., .............. ...~....,~..~.e...~.. ........ ~. .............. ,19..~..g. · r~ Sworn to before me this ...... ../....~.. ............ ,day of ...................... ..P2.....8:.R.~ .............................. ,19.2..g. Notary Public ' BARBARA k SCHNEIDER NOTARY PUBUC, State of New York No. 480t~4~ Qualified in Su~olk Cou_n~' / Location of Property: 746i0 and 74500 Main Road, Oreanport,~ NY; 1000-46-'1-1 and 221, eom- bined as a single lot. _ The Board of App,,eals will at. said time and place hear any and all persons or representatives desiring to be heard in the above applications or desiring to sub- mit written statements before tho end of each hearing. The heart ing will not start earlier than d~- ignated. The file is available for review during Town Hall busi- ness hours (84 p.m.) If you have questions, please do no~ hesitate to call 765-1809. Dated: March 6, 1998. BY ORDER OF THE SOUTHOLD TOWN .BOARD OF APPEALS GERARD P. ~ GOEHRINGER, Chairman By: Linda Kowalski IX-3/l 2/98(5 l) Pending building p/~nit No. 24632Zwas issued 2/3/98. Lo- cation of Property: 695 Shore DriVe, Greenport; 1000-47-2- 18,,, BAYVIEW/SOUTH, HAR- ~ Variance under Ar- hc-~l~ection 100-33, based upon the February 10,. 1998 No- tice of Disapproval issue~by the BUilding Inspector, to locate a R-g0,Zone_DisUict, in an area LocefiOn of Prope~:~lung thc ~terl~ Sidc of South I-I~or Road (also extending near the end of Grange Roed)~ SoUthold; 10000.?5-4,22.6 (formerly par- cel of 22.4).. 7:00p.m, Can'yover Hearings from Maroh 23, 1998: T PETIKAS. Proposed two- family use on a 21,000~ sq. fi. parcel in this R-40 Residential Zone Disui~ Locatiunof Prop- erty: Comer:of the~ Wasterly Side of, Sound Road and the NOrtherly Sid~ of North Road (C;~.,48)'(a/k/a Northerly End of'Main Street),,Greenport; 1000~35,14, which requires ap- proval for the Board o fAppeals forth~following: ~ ..,, . a) Special,Exception Applien- tiun. No~4525 as provided by Article;41I!,% SectiOn- 100- 30A.2 fo~.a two4amily:use/oc- b)-¥ariance'~li~atioT~ No. 4526 as provided tmder:Sei:fion 100-3 IA.3 for the reason ~ the . substandard lot~ size'of .21,483 sq: ff. does not conform to.the we~ use in this:R 4¢ Zon~ e)ffance.in excesS of four,fi.' ball,lit limitation within oralong fromyard:areas, based upon the Btlilding Inspeetor'~ ~February 1 O~'99SNotice~of Disapproval, Arti¢leXXIH~ SectiOn 100-231. . 7:10 p.m. AppL NoJ~4560- ROBERT~ SHANK. ICerryover, he~ aring ~h:un.~Aprit 6, J99'$.f6¥ Contln~ati,on~: ~20 Fisli~m//n~st: ;B/e~/ch - RSad, Cutchogue; ~lO00.d l~'~-J %19. L, ' RIVEI~HE'A~ z' BUI E, DING COUNTY OF SUFFOLK STATE OF NEW YORK ss: Patricia C. Lollot, being duly sworn, says that she is the Production Coordinator, of the TRAV- ELER WATCHMAN, a public newspaper printed at Southold, in Suffolk County; and that the no- tice of which the annexed is a printed copy, has been published in said Traveler Watchman once each week for / ........................................................................ weeks successively, co.(nmenfing on the .~....../~... ....... d ay ..................... 39 Sworn to before me .this ......... ..?......~.. ....... :day of ...................... · ........................... Notary Public .. BARBARA A. SCHNEIDER NOTARY PUBUC, State of New York No, 4806846 Qualified in SuffolkCou_n~lf ! Commmion [xpires NOTICE OF HEARINGS SOUTHOLD TOWN BOARD OF APPEALS THURSDAY, MAY 14, 1998 NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the following applications will be held for public hearings by the SOUTHOLD TOWN BOARD OF APPEALS, at the Southold Town Hall, 53095 Main Road, Southold, New York 11971, on THURSDAY, MAY 14, 1998 at the time noted below (or as soon thereafter as possible): 6:45 p.m. Appl. No. 4565 - STEVEN ZUHOSKI. Variance under Article XXIV, Section 100-244, based upon the Buil~l~ng Inspector's March 30, 1998 Notice of Disapproval for a proposed garage addition with an insufficient side yard setback at property known as 1090 Gold Spur Street, Cutchogue; 1000-95-4-18.12. 6:50 p.m. Appl. No. 4566 - FRANK BERTETTO. Variance under Article XXIV, Section 100-244B, based upon the Building Inspeetor's April 7, 1998 Notice of Disapproval for an ~as built" garage addition. Pen~lfng bui]rllng permit No. 24632Z was issued 213/98. Location of Property: 695 Shore Drive, Greenport; 1000-47-2-18. 6:55 p.m. Appl. No. 4564 - BAYVIEW]SOUTH HARBOR~ L.P. Variance under Article III, Section 100-33, based upon the February 10, 1998 Notice of Disapproval issued by the Building Inspector, to looate a proposed accessory garage in an R-80 Zone District in an area other Page 2 - Legal Notice~ Hearings for May 14, 1998 Southold Town Board of Appeais than the required rear yard. Location of Property: Along the easterly Side of South Harbor Road (also extending near the end of Grange Road), Southold; 1000-75-4-22.6 (formeriy parcel of 22.4). 7:00 p.m. Carryover Hearings from March 23, 1998: T. PETIKAS. Proposed two-family use on a 21,000+- sq. ft. parcel in this R-40 Residential Zone District. Location of Property: Corner of the Westerly Side of Sound Road and the Northerly Side of North Road (C.R. 48) (a/k/a Northerly End of M~in Street), Greenport; 1000-35-1-8, which requires approval from the Board of Appeals for the following: a) Special Exception Application No. 4525 as provided by Article III-A, Section 100-30A.2 for a two-f~mily use/occupancy; and b) Variance Application No. 4526 as provided under Section 100-31A.3 for the reason that the substandard lot size of 21,483 sq. ft. does not cenform to the requirements for a two-family dwelling use in this R-40 Zone District; and c) fence in excess of four-ft, height limitation within or along front yard areas, based upon the building inspector's February 10, 1998 Notice of Disapproval, Article XXIII, Section 100-231. 7:10 p.m. Appl. No. 4560 ROBERT AND ANN SHANK. (Carryover hearing from April 16, 1998 for continuation). 820 Fisherman's Beach Road, Cutchogue; 1000-111-1-19.1. 7:25 p.m. Appl. No. 4547 - RIVERHEAD BUILDING SUPPLY. This is a request for a variance based upon the Building Inspector's January 2, 1998 Notice of Disapproval which reads as follows: Page 3 - Legal NoticeO Hearings for May 14, 1998 Southold Town Board of Appeals "...1) the proposed structure being located in an LIO District is permitted to have a maximum of 60 feet of frontage on one street. The proposed building is approximately 115 feet facing Rt. 25, Article XIII, Section 100-133C; 2) When fences are located in or along side and rear yards, they shall not exceed 6-1/2 feet in height, pursuant to 100-231B .... " Location of Property: 74610 and 74500 Main Road, Greenport, NY; 1000-46-1-1 and 2.1, combined as a single lot. The Board of Appeals will at said time and place hear any and all persons or representatives desiring to be heard in the above applications or desiring to submit written statements before the end of each hearing. The hearing will not start earlier than designated. The file is available for review during regular Town Hall business hours (8-4 p.m.). If you have questions, please do not hesitate to call 765-1809. Dated: AprH 20, 1998. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER, Chairman by Linda Kowaiski 7:10 p.m. Carryover Hearing from March 23, 1998: BUILDING SUPPLY CO. RIVERHEAD PATRICIA C. MOORE Atm,~ at Law 315 Westphalia Road P.O. Box 483 Mat6tuck, New Yo~k 11952 Tel: (516) 298-5629 Fax: (516) 298-5664 March 19, 1998 Southold Town Board of Appeals 53095 Main Road Southold, NY 11971 Att: Ms. Linda Kowalski RE: Theodore and Maria Petikas Application Hearing Date: March 23, 1998 Dear Linda: Enclosed please find an additional return receipt card for the Affidavit of Mailing for the above referenced matter. Very truly yours, Patricia C. Moore By: Margaret Rutkowski, Legal Secretary ~; SENDER: .~_ · Complete items 1 and/o~' 2 for additionaJ serv;ces. I also wish to receive the ~ · Complote items 3, 4a, and 4b. ~-Pcad~t~Yoo~ameanda~nmson~erevemeo, this~n~sothetwecanrotum,N, fdlowingse~4¢os(foran ~ · At[ach this form to the fro~t ~f the maJrplece, or on the heck if space does not extra fee): ~ permit. 1. [] Addressee's Address --~ · .~~WTh~ 'RotumRe~ipt~equested'c~themal~plecebelowthea~tidenumbsr. 2. [] Rastdcted Delivery e~ . !~ir~m Rec~pt w~ll show to whom the article was doiivered and the date ~; · o "~A~cle Addressed to: Consult postmaster for fee. ~- ~ ~ 4a. A~cle Number _~  Ms. Sophie Raynor Z 286 590 302 E 17 Sound Road ~tb. Service Type ~ Greenport, NY 11944 [] Registered [~ Certffied =: [] Express Mail [] insured ._= [] RetumReceiptforMerchanclise [] COO = 7. Date of Delivery ~ 5.~ P,~e~eived By: (Print Nam~e) ~ ~ ./J~ ~ ~_~c./2.~ ~_..~ ~/~j~..~ 8. Addressee's Address (Only if requasted .~ ~ and fee is paid) ~- 6. Signature: ~Addressee or Agent) · ~ X I,,,ll,,,lll,l,,,I,,I,l,,I,,,lll PS Form 3811, December 1994 102sgs-gz s o,z9 Domestic Return NOTI OF HEARI,,, NOTICE IS HEREBY GIVEN that a public hearing will be held by the SOUTHOLD TOWN BOARD OF APPEALS at the Town Hall, 53095 Main Road, Southold, New York, concerning this property. OWNER(S) OF RECORD: DATE OF PUBLIC HEARING: If you have an interest in this project, you are invited to view the Town file(s) which are available for inspection prior to the day of the hearing during normal business days between the hours of 8 a.m. and 4 p.m. BOARD OF APPEALS · TOWN OF SOUTHOLD · (516) 765-1809 NOTICE OF HEARINGS SOUTHOLD TOWN BOARD OF APPEALS MONDAY~ MARCH 23~ 1998 NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the following application will be held for public hearing by the SOUTHOLD TOWN BOARD OF APPEALS~ at the Southold Town Hall, 53095 l~lnin Road, Southold, New York 11971, on MONDAY, MARCH 23~ 1998 at the time noted below (or as soon thereafter as possible): 7:15 p.m. THEODORE and MARIA PETIKAS. This is a request for a two-family use at the corner of W/s Sound Road and N/s Main or North Road (C.R. 48), Greenport; 1000-35-1-8, which requires approvai from the Board of Appeals for the following: a) Special Exception Application No. 4525 as provided by Article III-A, Section 100-30A.2 for a two-family use/occupancy; and b) Variance Application No. 4526 as provided under Section 100-31A.3 for the reason that the substandard lot size of 21,483 sq. ft. does not conform to the requirements for a two-family dwelling use in this R-40 Zone District; and Page 2 - Legal Notice~ Regular Meeting of March 23, 1998 Southold Town Board of Appeals e) fence in excess of four-ft, height limitation within or along front yard areas, based upon the building inspector's February 10, 1998 Notice of Disapproval, Article XXIII, Section 100-231. The Board of Appeals will at said time and place hear any and all persons or representatives desiring to be heard in the above application or desiring to submit written statements before the end of each hearing. The hearing will not start earlier than designated. The file is available for review during regular Town Hall business hours (8-4 p.m.). If you have questions, please do not hesitate to call 765-1809. Dated: March 6, 1998. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER, Chairman by Linda Kowals~ OFFICE OF BOARD OF APPEALS 53095 Main Read Southold, NY 11971 (1-516) 765-1809 tel. (1-516). 765-9064 fax. -{-++~- I ! [ t-+++ ! ! ! {-+-I-I-+ ! ! ! [-+++-I~+ [ ! ! ~-~ ! I I ++++ I I i -' i t-+++++-I-+-I-++++t ! ! I I-+++-~-+~ |::: - March 6, 1998 Re: ZBA AppHeation Hearing Date: Monday, March 23, 1998 Dear Sir or Madam: For your records, please find enclosed a copy of the Legal Notice which will be published by our office in the upcoming issue of the L.I. Traveler newspaper. Under the requirements of Chapter 58 of Town Law, we are requesting that you send a copy of this Notice at this time by certified mail~ return receipt requested~ to the all sur~oundlng property owners. Please include a copy of a map or sketch describing the setbacks and bui]dlng(s) with your m~ilings and your telephone number. These m~illngs must be postmarked by 3/11 if possible, and be forwarded to all owners, as listed on the Town Assessment rscords, of vacant or improved IRnds across streets and along all sides abutting the boundaries of the subject lot. Please also post the enclosed Poster in the location described by Ch. 58 of the Code (that is, wilhin ten (10) feet of the front property line facing the street, for a period of not less than seven (7) days). The sign may not be posted later than 3/15. If the sign is torn or removed due to adverse weather conditions, let us know and we will provide another. Please return the Affidavit of Mailing with the white certified mall receipts (postmarked by the post office) for our file prior to the hearing Page 2 - Instruction Meeting of March 23, 1998 Southold Town Board of Appeals date by mail or in person. The return receipt green returned at the hearing (or before). If you have questions, please feel free to call. Very truly yours, cards may be Enclosures IAnda Kowalski Board Secretary ~S400/lnag.98/appl.ln (1-516) 765-1809 tel. Inter-Office Ext. 223 OFFICE OF BOARD OF APPEALS 53095 Main Road Southold, NY 11971 (1-516) 765-9064 fax. February 17, 1998 FAX TRANSMISSION and REGULAR MAIL Patricia C. Moore, Esq. 315 Westphalia Road Mattituck, NY 11952 Re: Appl. No. 4526.1t and 4547.jd - Petikas Applications Dear Mrs. Moore: Our department has recently received notification from the Building Inspector that a variance is required for fence height above four feet (ref. Notice of Disapproval issued February 10, 1998). With respect to the proposed dwelling, Mr. Forrester has also confirmed that the building department will not address applications for a new dwelling on a vacant lot when the application lacks Health Department and other approvals. He has indicated he would contact you regarding this. In the interim, the Board is expected to update their review of the application at our February 26, 1998, and determine the next step (possible hearing date for March 23, 1998). It is our understanding that two variances are now requested: one, under section 100-31A.3 for a lot size variance for a nonconforming lot in this R-40 Zone, and two, for fence height at 6 ft. from natural grade, along the front yard area property lines. Thank you. Very truly yours, Office of the ZBA cc: Mr. Ed Forrester, Department Head (Building Dept.) -~t~ PLANNING BOARD MEMBERS BENNETT ORLOWSKI, JR. Chairman WILLIAM J. CREMERS KENNETH L. EDWARDS GEORGE RITCHIE LATHAM, JR. RICHARD G. WARD Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-3136 Telephone (516) 765-1938 PLANNING BOARD OFFICE TOWN OF SOUTHOLD _ _, TO: FROM: Zoning Board of Appeals Robert G. Kassner, Site Plan Reviewer~ RE: Request for comments from the ZBA DATE: February 24, 1998 The Planning Board reviewed your request for comments at yesterday's work session. Please find the Boards comments in regard to the items scheduled on the Zoning Board's February 26, 1998, meeting below: R. Leonard SCTM# 1000-78-7-38 & 39 The Planning Board does not have any records on this property. M. Spiro & Others SCTM# 1000-110-6-11.2 & 5 The Planning Board has a file showing the approval on November 8, 1979, of a three lot minor subdivision. Lot # 11.2 is lot # 2 in this subdivision. T. McCarthy SCTM# 1000-70-2-8 The Planning Board had received a request of site plan waiver from the contract vendee, (Patrioa & William Moore). The Board has agreed to the waiver request ff the applicant will pave and mark the handicapped parking space and install bumper stops in the parking lot. T. Petikas SCTM# 1000-35-1-8 The Planning Board has a file on this applicant. The file references a Zoning Board action of August 22, 1985 & Planning Board correspondence regarding a preliminary site plan. Tonyes Realty Corp. SCTM# 1000-61-4-23 The Planning Board does not have a site plan application for the proposed addition. This is a non-conforming use in the Hamlet Business (HB) District. The Zoning Code does not allow a non=conforming use to be enlarged. Section 100-241 (A.) of the Zoning Code specifically states that a non-conforming use may continue indefinitely, except that "(it) shall not be enlarged, altered, extended, reconstructed or restored.., nor shall any external evidence of such use be increased by any means whatsoever." The Planning Board is not in favor of this request. APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman James Dinizio, Jr. Lydia A. Tortora Lora S. Collins George Homing BOARD OF APPEALS TOWN OF SOUTHOLD INTER-DEPARTMENTAL MEMORANDUM Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 ZBA Fax (516) 765-9064 Telephone (516) 765-1809 TO: FROM: DATE: SUBJECT: {x} ( } { } Planning Board Building Department Town Trustees J. Goehringer, Chairman, Board of Appeals February 23, 1998 Request for Confirmation of ~'~ h~ i ~ History and Preliminary Comments Please confirm whether there is any history of action(s) by the Planning Board for the property identified below, or any part thereof: 1000-78-7-38 and 39 currently of R. Leonard 1000-110-6-11.2 and 5 currently of M. Spiro and others 1000-70-2-8' currently of T. McCarthy 1000-35-1-8- currently of T. Petikas 1000-61-3-23- currently of Tonyes Realty Corp. Also, please furnish communications of record that applicants* may have had with respect to the general site plan layout and possible changes to parking location discussed or any other areas which would assist in this planning project. Thank you. Enclosures: Copies of preliminary maps for the above applicants*. ' ~ ~t~E~LS BOARD MEMBERS Gerard P. Goehringer, Chairman James Dinizio, Jr. Lydia A. Tortora BOARD OF APPEALS TOWN OF SOUTHOLD Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1809 November 20, 1997 Patricia C. Moore, Esq. 315 Westphalia Road Mattituck, NY 11952 Re: Applications of Theodore Petikas Dear Mrs. Moore: This will confirm that in checking with Gary Fish, Building Inspector, today their office has confirmed that you will need to make an application directly to the~ before a Notice of Disapproval reviewing the areas of zoning may be issued. Thank you. CHAirmAN Enclosure Fax Transmission to 298-5664 cc: G. Fish, 8uildin§ Inspector APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman James Dinizio, Jr. Lydia A. Tortora BOARD OF APPEALS TOWN OF SOUTHOLD Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1809 November 3, 1997 Patricia C. Moore, Esq. Moore & Moore P.O. Box 483 Mattituck, NY 11952 Re: Appl. #4525 & 4526 - Petikas Project at Greenport Dear Mrs. Moore: This will confirm that Board Members have requested that the applicants or their attorney make application to the Building Department and obtain a written determination by the Building Inspector confirming the areas in which zoning is not in conformity for this project. Upon receipt of the Building Inspector's deterndnation, the file is expected to be deemed complete and by board resolution, calendared for a public hearing at the foilowing meeting. Very truly yours, Linda Kow~ski cc: Building Department JUDITH T. TERRY TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 TO: SOUTHOLD TOWN BOARD OF APPEALS FROM: JUDITH T. TERRY, SOUTHOLD TOWN CLERK RE: ZONING APPEAL NO. 4526 DATE: OCTOBER 27, 1997 Transmitted is application for a variance Patricia Moore on behalf of Disclosure Form; Short and Survey. submitted by THEODORE PETIKAS together with Environmental Form; Deed; ~--' Jud[tt~: T'. 'Te~;~y~ Southold Town Clerk (Added I-lb . · L.I~ No. 1-198§] LIO LB lib B Light Industrial LI Llmitod Hamlet Genernl M-I M-Il Pnr~JPlinned Ughl Bu~lne~ Bu~inem Bualne~ Marine I Marine Il Office Park lnduMrial 20,(.~0 ivli) NA 40.000 40,000 (v~i) NA NA ~,0~0 (vii) NA 2O,(]O0 20.000 (~ii) NA NA 10,000 (xi) NA 10.0~0 10.000 (x{) NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NOTES: ~ Roman numerR[~ refer to the applicable c~umn in the Residential Butk ~:hedule. ...... Refer to the Residential Bulk Schedule for total lot size. Town of Southnld NA NA NA NA ~000 NA NA NA NA NA 6,000 NA NA NA NA NA 4,000 NA R-80 isLAND PLANNING BOARD MEMBERS BENNETT ORLOWSKI, JR. Chairman WILLIAM J. CREMERS KENNETH L. EDWARDS GEORGE RITCHIE LATHAM, JR~ RICHARD G. WARD Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-3136 Telephone (516) 765-1938 PLANNING BOARD OFFICE TOWN OF SOUTHOLD 3 0 TO: FROM: RE: DATE: Zoning Board Office Planning Board Request for comment December 29, 1997 Appl. #4525 & 4526 - T. Petikas Sound Road & Main/North Road, Greenport SCTM# 1000-35-1-8 This property is located at a busy intersection. The proposal is to increase intensity of use, and the level of traffic on this parcel which is undersized. From a traffic safety perspective, this is not a good idea. The house size does not show on the property card (attached). APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Serge Doyen James Dirdzio, Jr. Lydia A. Tortora Maureen C. Ostermann BOARD OF APPEALS TOWN OF SOUTHOLD Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1809 FOR BOARD AND STAFF USE APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman James Dinizio, Jr. Lydia A. Tortora Lora S. Collins George Homing BOARD OF APPEALS TOWN OF SOUTHOLD May 27, 1998 Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 ZBA Fax (516) 765-9064 Telephone (516) 765-1809 Patrieia C. Moore, Esq. Moore & Moore 51020 Main Road Southold, NY 11971 Re: Applications for Variances and Special Kxception Parcel 1000-35-1-8 (Owners: petika.~) Dear Mrs. Moore: Following our communications with you, we enclose copies of the Board's May 19, 1998 Determinations legal'ding the above applioation~. Very truly yours, GERARD P. GOEHRINGER CHAIRMAN Enclosures Copies of Decisions to: Building Department planninE Board Suffolk County plonning Commlgsion (within 500 ft. of a county/state road) I ~:~"~' ] ' ] (~) COUNTY OF SUFFOLK J~'~'L~U' COUNTY OF SUFFOLK ~m~OUTHOLD