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HomeMy WebLinkAbout4668 i r j APPEALS BOARD MEMBERS SpFF0j/ C� Southold Town Hall Gerard P. Goehringer, ChairmanG'y< 53095 Main Road James Dinizio,Jr. y P.O. Box 1179 x Lydia A. Tortora Southold, New York 11971 � Lora S. Collins y,� ��� ZBA Fax (516)765-9064 George Horning Cl �a Telephone(516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD FINDINGS, DELIBERATIONS AND DETERMINATION MEETING OF MAY 5, 1999 Appl. No. 4668 - SOUTHAMPTON LUMBER CORP. 1000-114-11-24.3 STREET & LOCALITY: 13650 Main Road, Mattituck DATE OF PUBLIC HEARING: March 25, 1999 and April 22, 1999 FINDINGS OF FACT I. BASIS OF APPEAL: The applicant, Southampton Lumber Corporation, applied to the Building Department on December 16, 1998 for a new Certificate of Occupancy, as an "update" to a 1993 Certificate of Occupancy No. 12023 to allow a lumber yard and wood-working business. The Building Department on January 13, 999 issued a Notice of Disapproval under Article XXIV, Section 100-242G to re-institute lumber yard use in this Hamlet Business (HB) Zone. Article XXIV, Section 100-241G of the Southold Town Zoning Code states: Except as provided hereinafter, nonconforming use of buildings or open land existing on the effective date of this chapter or authorized by a building permit issued prior thereto, regardless of change of title, possession or occupancy or right thereof, may be continued indefinitely, except that such building or use: G. Whenever a nonconforming use of a building or premises has been discontinued for a period of more than two (2) years or has been changed to a higher classification or to a conforming use, anything in this Article to the contrary notwithstanding, the nonconforming use of such building or premises shall no longer be permitted unless a variance therefor shall have been granted by the Board of Appeals." REQUEST MADE BY APPLICANT: Southampton Lumber Corp. requests permission to re-establish a lumber yard and woodworking business at 13650 Main Road in the Hamlet of Mattituck, NY, by way of a determination from the Board of Appeals reversing the Building Inspector's Notice of Disapproval dated 1/13/99 for an 'updated'Certificate of Occupancy. PROPERTY FACTS/DESCRIPTION: The applicant's property is located along the south side of the Main Road (a/k/a State Route 25) in Mattituck in the central business district of Mattituck. Until 1989, the applicant's property was zoned C-Light Industrial. In 1989, the Town of Southold adopted new zoning regulations and zoning maps, and the property was rezoned Hamlet Business. Pace 2-May 5, 1999 . Re:.1000-115-11-24.3 ZBA Appl. #4668-Southampton Lumber Corp. The property is improved with buildings and structures as more particularly shown on the November 30, 1998 survey prepared by Joseph A. Ingegno. REASONS FOR BOARD ACTION, DESCRIBED BELOW: The Zoning Board held a public hearing on this matter on March 25, 1999 and April 22, 1999, at which time written and oral evidence were presented. After carefully reviewing all of the testimony, documentation, as well as personal observations of Members of the Board and other evidence, the Board of Appeals finds the following facts to be true and relevant: 1. Since prior to zoning in 1957 and until 1983, Reeve Lumber and Woodworking Company operated a lumber yard and woodworking business at the site. The property was zoned C-Light Industrial, and lumber yards were permitted uses in that zoning district. 2. On October 29, 1983, a Certificate of Occupancy No. Z12023 was issued to Reeve Lumber & Woodworking Co., stating that the buildings existed prior to April 23, 1957 and that it "substantially conformed'for a "lumber and woodworking business" 3. On November 18, 1983 Reeve Lumber and Woodworking Co. sold its business to Southampton Lumber Corp., which owned and operated several yards in Southampton, East Hampton and Moriches. 4. In 1989, the Town updated its zoning regulations and maps. The applicant's property was rezoned from C-Light Industrial to HB Hamlet Business. The lumber yard use continued as a pre- existing nonconforming use until 1993. The woodworking business was a permitted use in the C- Light Industrial District and continued to be a conforming permitted use subsequent to the 1989 rezoning and to this date. 5. From 1983 until 1993, Southampton Lumber Corp. operated the Mattituck business primarily as a lumber yard. In 1993, the Company went out of business, closed its doors to the public, liquidated most of its assets, and subsequently sold the lumber yards in Moriches, Southampton and East Hampton, all according to testimony of the applicant's attorney. Applicant's attorney further testified that the company is owned by 200 shareholders that, when faced with the effect of"the recession and some competitive disadvantages," management knowingly chose to preserve shareholder values by essentially going out of business rather than "continue it as a going business" 6. Since 1993, the applicant, through its attorney, stated that it ceased its operation as a lumber yard, and offered the property for sale with the same use, operating as a carpentry workshop for woodworking. It is the position of the applicant that for these reasons it believes the lumber yard use"continued." 7. The Board finds that lumber yard use and woodworking use were two separate business uses, one being conforming (woodworking), and the other use which has been discontinued since 1993 as non-conforming (lumber yard). Page 3- May 5, 1999 Re:.1000-11+11-24.3 ZBA Appl. #4668-Southampton Lumber Corp. 8. The Code does not define a "lumber yard," per se. However, a "craftsmen's Workshop" is a permitted use in the Hamlet-Business Zone District under Section 100-91A(11). A lumber yard is a permitted use in the Light-Industrial (LI) Zone District, Section 100-141A(3) and (4) under "wholesale businesses, warehouse and building material storage and sale," and "building businesses or yards." A lumber yard is not permitted in the Hamlet-Business Zone District. 9. Affidavits and testimony were received to show that the property after 1993 did continue for certain woodworking activities, while the property was listed on the market. This woodworking use is not inconsistent with the Hamlet Business Zone District and is not nonconforming. The record does not include evidence or information to show that the other "nonconforming" use as a lumber yard existed after 1993. 10. It is known that abandonment occurs when there has been a complete cessation of the nonconforming use. The record shows that the lumber yard did completely cease to operate in 1993 and has not operated since that time. 11. The applicant, Southampton Lumber Corp. and the applicant's attorney, admitted in its application that the corporation voluntarily ceased its lumber operations at this site during 1993 and that no other lumber business was at the site since 1993. 12. Supplementing the applicants'testimony, it is the Board's personal knowledge that the lumber yard operations have been discontinued since 1993, and that no other lumber business was at the site since 1993. 13. That the applicant continued to operate a carpentry workshop, with no lumber yard use since 1993. Wholesale fencing was made and was not sold from the premises or stored for sale to the public or for other purposes on this site. 14. That the continued operation for woodworking, carpentry workshop is a permitted use in this Hamlet Business Zone District and therefore is conforming (rather than non-conforming). The Building Department could issue a Certificate of Occupancy for a carpentry workshop, a wood- working business, which is a permitted use. Even a retail store is a use permitted in this Hamlet Business Zone District under Section 100-91A(6). 15. That the Board decided only whether the preexisting use as a lumber yard use had been completely abandoned or not. The Board did not treat this application as a use variance, which is a remedy open to the applicant for a lumber yard use in the Hamlet Business Zone District. 16. Based on the record and personal knowledge, the Board finds that: a) There were two uses existing prior to 1993: a nonconforming lumberyard and a conforming carpentry workshop (wood-working business); Page 4— May 5, 1999 Re!1000-114-11-24.3 ZBA Appl. No. 4668 -Southampton Lumber Corp. b) There was a zone change in 1989 which does not permit a lumber yard in the Hamlet Business Zone District, and which does permit a carpentry workshop for wood-working activities. c) That it is undisputed that the nonconforming lumberyard discontinued its use and operations in 1993, and that no other lumber business was present subsequent to 1993. d) That the nonconforming use discontinued for a period of at least two years, which is undisputed. e) That only one business continued subsequent to 1993 and that business was a carpentry workshop for wood-working activities, a conforming use. f) That applicant is entitled to a Certificate of Occupancy for a carpentry workshop, wood- working business (without a lumber yard nonconforming use). 17. The applicants have not proven, as required by law in this record, that the lumber yard operation continued as a non-conforming use. RESOLUTION/ACTION: Now, therefore, on motion by Member Tortora, seconded by Member Collins, it was RESOLVED, to DENY the application as applied for. VOTE OF THE BOARD: AYES: GOEHRINGER, DINIZIO, TORTORA,COLLINS. (Absent was Member Horning of Fishers Island.) This RESOLUTION was duly AD ED (4-0 . GERARD P. GOEHRIN' ER CHAIRMAN For Filing by 5/18/99 RECEIVED AND FII:ED B TFI3; SOU 1 r'L t s p { i Ali / 5-Aktj � — i i. Town Clerk, n Ve,*e(Owner:Wilhelm Frinken). beryard.and rela[ vities,which T_ "�s a request for an§pedal 'use is noncorr�g In, this Lrt,#ion under Afucfet; XX, Hamlet-Business �,&dge District. Section 100-IOIB 12 to establish-a Location of Propertyv_-13W Ma ii new.Retafl Ga5'Sales-Convenience Road,Matutuck,NY;=nE'ciunfy=paicel Store. Location o[Propertg 74495 N0.1000=114 1T 243,a - MamRoad Greeuport`NY;„-'?bunty ,The Board of Appeals will�atsaid Tax,Map No.100fk,45-4-4.1=(or 4). time and place hear 64 andii Per " 110 p.m Appl. Nos. 4667 and sons or representativ irar$to be _ 4670 JOHN ANDLUCLSICA. . heard iitt?the abovn '1Toa oi: A Variance is requested under the dcmning',ra snbmitr•w:ntt „state- Southold Town Zoning Cole; mEnts before conclU,d&. tg0",hear Article XXIV B,Section 100--21 and " mg.Eachheanag wick inik aril Article XXEI, Section 100239.4B er.than;designated.FFfes;ar ;avat7= for permission to locate proposed able foreview during.;Eegu(ai:Efown dwelling with setbacks at iess than Hall business haurs.`j8' pnri� If 75 feet from the existing buNehead you have questions;4,i ase;do not and, :than 40 feet from the front hesitate,to call(516)465.1809; . _ property line (facing private right- Dated:March g,1999." of-way): Location. of Property: BY ORDER OFTHE Private.right-of-way extdi d g off _ SOUTF>l•1,64OWN the south side of"Main Road(S;R. < BOARITdF..APPiiiALS 25),East Marion,NY parcel 100D- GERARO P.GO'EH OER 31-149: CHP 7:26 pin.Appl-No.4663—DR. By Linda Kowalski ^ FRANK AND JEAN MIRCHEL. 1633-1TM11 i This':is a request'for a Variance under Article xXJV, Section 100- 244B, based upon-a Notice of ^ Disapproval issued January 27,19W for approval of the setback location of an"as built"addition to dwelling NOTICE OF located at 2485 Yennecot Drive, PUBLIC HEARING Southold, NY; County Tax Map SOUTHOLD TOWN Parcel 1000-55-4-16. BOARD OF APPEALS 7.25 p.m. Appl. No. 4664 — THURSDAY, - ROBERTLUSTGARTEN(Joseph MARCH25,1999 Tavanno,Contract Vendee).This is STATE OF NEW YORK) NOTICE IS HEREBY GIVEN, a request for a: Variance under )SS: pursuant to Section 267 of the town Article XXIV Section 100 244B, Law and the Code of the Town of based upon A Notice of Disapproval COUNTY OF S FOLK) Southold,the following applications issued Januazy,1Y,1999 to construct ) p will be held for public:hearings by new_„dwelling, after demolishing 1�-Q �• ( � is Of Mattituck, In said the-S'01JTFIOLD TOWN BOARD existing :dwelling, wfiich building county, being duly sworn, says that he/She is OF;APTEALS, at the Southold are a•.wilt.exceed the 20% code Towa 'Half, 53095 Main Road, limitation for total lot covineerage and Principal clerk of THE SUFFOLK TIMES, a Sout$ofd; `New "York 17972, on front nt proiess+tline. Location of weekly newspaper, ublished at Mattituck, in. THUD#Y"'I(TARCH35,1999 at front property�line: Location of yP the t `mfe's*paced below(or as soon Property:2575 Old.Orchard.Lane, the Town Of Southold, County of Suffolk and therea$'er'as ossiWe): EmttMa ion,NY;:County Tax Map u�0 P toappl r o. 465z I000-37-6-7.1. State of New York, and that the Notice of which BUILDING DEPARTMENT by T35 p.m. Appl. No. 4666 — the annexed is a rented c0 has been regu- EDWARD FORRESTER-This is a ROBERT AND JOYCE BARRY. p copy, request for a Town-Wide Inter. This is a request for a Variance laxly published in Said Newspaper once each protatlon with regard to the under.Article III-A, Section 100- 1 wee�{S successively, Southold Town Zoning code, Ar- 30A.4 week for based upon a Notice of }I,v ticle III,'Section 100-31C(i), Ae- Disapproval dated.January 2Z 1999 COMmenCT g On the 1 day cesmiy Buildings and Structures,for to construct new detached two-car /' an answer to the Building De- garage with second floor strio;.locat- of 1 1g partment's'Ouestion: %in a yard other than the required "ls',Zstructure—that was orip- real.,.ard,This parcel is a corner lot , i designed and intended to. known as 875 West.Cove Road (at a Yt V befor vehicubw use-a structure West Loop), Nassau Point, Principal Clerk that can-be construed to be a cue-. Cutchogue, NY, County Tax Map tomaryr structure or use that is 1000�111-3.18; also referred to as / custnmarlly incidemat:to the- Lot 20.on the Subdivision Map of Alonzo Jersey. Sworn t0 be fore me this gipal nse't" 6:35 p.m. Appl. No. 4662 — 7x75 p.m Appl. No 4669 — day of 19 W PATRICIA RUSHIN&.PAMELA GERALDINE FEREND "is is a MO.TTLEY. This is,a request for request for a Waiver of Lot under r-y_ ,` itIAPY 01MA FOSTER Variances under Article 111, Article II,Section 100-26,regarding KO'ITARY t?E.S3 if` STATE OF NE,4`(b'RI( sections 100-32,10D-33,and Section Lot, #249, consistingof a y,:.524555249 SSIFFOM Ora"fY 1OD-235A(2)based upon a Notice of proximately 26,0W sq. . in area, (.0 °ti iJSi+'f:_,FIRES iRES i'auCST 31,A� Disapproval issued December 10, shosgn on Amended Map A of 19991nttus pending subdivision pro- Nassau Point Club.Properties.In the . ject,as fullows: Notice of Disapproval.issued June (ayInsufficient lot width for each .22,1898,-the Town determined that 'faxili sed Parcel A=and B,for the lot has been.merged with Lot- one single-family-dwelling use #750,Location�of"Property: 5125 omeach Parect. and 5345 Mansion Road,Cutehogue, (4 Insufficient lot:area of pro- NY;County Tax Map Parcels-l0DO posed`Parcel A; 111-14-1 and 2. - (c)Insufficient side yards for each 7:55 p.m, Appl. No. 4671 proposed Parcel A and B; HENRY L FERGUSON' MU- (d) Insufficient total side yards SEXW. Variances.are requested- . far-:each proposed-Parcel A und* Article XXV4 Section.IM and B. - 241-A^,and Article Ill,Section 100- (e) Proposed Parcel — with 32, aced upon two Notices of no safeand convenient ac. Disapproval issued February 2, cess". 199 for permission to construct W Bathhouse structure on Parcel addition with huadfieien60rout yard A::? setbock(s) and alterations to an Location of Property:6950 Indian existing nonconforming (Museum) Neck Lane, Peconic, NY; County use X,' this R-80 Residential'Zone Tax Map Parcel 1000-86-7-5 (con Distrct.Location of Property:N/W. taining 3.43t acres).. of Equestrian Avenue (Bell Hill . 665 pun. Appl..No, 4655 — J. Avenue and West Street),:Fishers BOYL19AND HANDS FUELCO. . Isla NY; County Tax Map No. (Continuation from February 23, 100 09-04-111. 1999).Use of abutting strip of R-80 &p5 p.m. ,Appl. No 4668. Residentially Zoned land.N/s Main SO*7IAMPTON LUMBER Road,Orient,NY;part:of loon-18-2- CO1'P This is a request for a 33. Val a under Article. XXIV, 7.00'.p.m. Appl. .No. 4660 — Sectil n 100-241-G,for permission to EMPIRE PETROLEUM;Contract reinstate(re-establisb)me as a lam. ,9 J FORM NO. 3 ,.✓ '�....;i� TORN OF SpUTHOLD • v BUILDING DEPARTMENT e P .�eRae �`� ' •-f�r98 c-Fda� SOUTHOLD, N.Y. NOTICE OF DISAPPROVAL DATE: . . .. . . .... ... .. To Southampton Lumber Corp:. ... . ...... . . ... c(o.Stephen.L.Hamm_III. ..... . .. .... ... . . 45 Hampton Road SQUF : ................. ... PLEASE PLEASE TAKE NOTICE that your application dated ;gcemb_ K_Ib ... . .. . 19,99 ... application re institute Lumber Yard in Zone for1tK to . ......... ....... . ....use.•--•-•HB_.. ..••.. .... ....... .. . .. ....... . at Location of Property ._ 13650 Main itu Rd. Mattck ....... ......... House No. Street Hamlet Countp"Tas Map No. 1000 —Section _ 114...... . BLOCK A ........ LOT 24;3 .._..... . Subdivision ............................. .. Filed Map No. .........Lot No. . ... ... is returned herewith and disapproved on the following grounds Pursuant Act Article MR.. Section 100-241G " Whenever a non-conforming use of a building or premises has ............... .. .. .. .... ................. . ........•... . . ................. ._. ........... . been discontinued for a period of more than two (2) years or has been changed to a .............. ...•••••...._. ... .. . ....... .. . ....••••• ••••••...... ........ ... . .. .. .. ...... higher classification or to a conforming use, anything in this Article to the contrary notwithstanding, the nonconforming use of such building or premise shall no longer be permitted unless a variance therefore shall have been granted ................... .......................................,... by the Board of Appeals. ................................................................... .. .............. ...... ................. .. .......... .............. ............ .................... .. ............ ................... .......... ............. .............. .................. ... ............................................ .................. ...... ............. ..... . ...... ... ... ...... ..... .. . . . ..... . .. .. .......... .. .. . . . . . . .......... . . . . ... . ... f BUILDIN SPECTOR RV 1/80 _. -_.... a TOY%t1 OF SOUTI1OLD, IIEW YORK Town Clerk Southold 1 APPEAL T12oM DECISION OF DUILDINC, n ISPEC7oR nPPE� I i Y tr DAI'Es.... ..... TO "}"I IE ZON(PIG BOARD OF APPEALS, TOWi I OF SOUTI TOLD, t . Y. ' (We,) Southampton Lumber Corporatioxl....:,of .c/.n..Matthews..&..Ham.,..45..Hamptokn..Fco-ad•...... ......... ...... Norne of Appellant Street and Plumber Southampton New York (IEREDY APPEAL TO . .. 1 . ......... . .... ..... .. .. .... ..._.......... Munici polit - State 111E ZOHING BOARD OF APPEALS FROM TI IE DECISION OF Ti iL DUIi_DIHG INSPECTOR OI I UPDATED CERTIFICATE OF OCCUPANCY 7anuar 13, 1999;, , APPLICATION FOR Ptgt df-f� 1. _...... .... .... DATED X._...,..... W}IEREDY THE BUILDING IPISPE-CTOR DENIED 1-0 SOUTHAMPTON LUMBER CORPORATION ................................................................................ Flonie of Applicant for permit Of c/o Matthews & Ham, 45 Hampton Road, Southampton, NY 11968 ..,..,.. ......... . ... SlPeet and Number Municipally State (X ) PERMIT 1'0 USE ( ) PERMIT FOR OCCUPANCY ( ) 13650 Main Road/; Matttuck/ 1. LOCATION OF THE PROPERTY . HB ............. ........ Street /Ilatniel Ii Use District on Zoning Mop District 1000 Section 114D1ock11 Lot 24.3 ...... _....___, N Current O.1ner Southampton Lumber Corporation Map Na N/A Lot o. N/A Pr'lor OwnerReeve Lumber & Woodworking Co. , Inc, 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 XXIV Section ' 100-241G 3. TYPE OF APPEAL Appeal is mode herewith for (please check appropriate box) ( X) A VARIANCE to the Zoning Ordinance or Zoning Map ( ) A VARIANCE due to lack of access (State of New York Town Low Chop. 62 Cons. Lows Art. 16 Sec. 280A Subsection 3 A. PREVIOUS APPEAL A previous appeal (lwr.) (has not) been, triode with respect to this decision of (lie Building Inspector or with respect to this prope(ty. Such appeal was ( ) request for a special Hermit_-- ( ) request for a variance and was made in Appeal PIo. ................................Dated ..........,............. REASON FOR APPEAL ( ) A Variance to Section 280A Subseclion 3 ( X) A. Variance to the Zoning Ordinance isrequested for the reason .that applicant's use of the .subject premises, for a lumber. and woodworking business-has been deemed abandoned by the Building. Department which has consequently denied applicant's application for an updated Certificate of .Occupancy. Fbrrn zin (Continue on other side) REASON FOR APPEAL Continued 1. STRICT APPLICATION OF THE ORDINANCE would produce practical difficulties or unneces nary HARDSHIP because the subject premises and the buildings and improvements thereon, having been used from prior to 1957 until 1993 for-a lumber and woodworking business, are particularly suited for that,purpose and applicant has a buyer who intends to resume:that use. Although applicant has listed the premises, for sale since 1993, no other prospective purchasers have emerged. Applicant has' an investment in the buildings, two of which are especially designed for building material storage. 2. The hardship created is UNIQUE and is not shored by all properties alike in the immediate vicinity of this property and in this use district because the applicant went out of business in 1993 so it could not continue the use even though it did not intendto abandon it. The premises were used continuously from prior to 1957 to 1993 for the same use applied for. 3: The Variance would observe the spirit of the Ordinance and WOULD NOT CHANGE THE Cl IARACTER OF TIIE DISTRICT because the use arguably already fits within at least one permitted use (retail business) in the HB District. The neighborhood should not be affected because the premises were used for a lumber and woodworking_ business at the time Zoning Code was adopted and for more than thirty-five years thereafter.` SOUTHAMPTON LUMBER CORPORATION STATE OF NEW YORK ) By �,. ss ......... .. ....�' . c....... COUNTY OF SUFFOLK ) Str no it q Stephen L. Ham, HI, Hce President sworn to this ::....... ....... /.. ..�.......... (Jay of. January .. ... 1999 .... . . . ........... Natary Pubirc BARBARA T. RAM Notary Publhc.State.of New York No. 02HA5061959 Qualified in Suffolk County Commission Expires June1Z, 2.040 Y r ' TO\IVPi OF SOUTHOLD PROPERTY RECORD tARD OWNER STREET VILLAGE DIST. SUB. LOT V , r. yo _ FORMER 0 NER Nn /�dL svt Ft A r � k 'S W _,,rrJJ TYPE OF BUILDING I RES. SEAS: VL. . FARM COMM. �BB.. MICS. Mkt. Value LAND dMP. TOTAL DATE REMARKS j , 3p� a B3 Q �a't�5 t vF, L(3rz 70xa7ls ) 7ou S l 66 as z 60 o 5 a� a✓t o�de� 9s �900-0 AGE BUILDING CONDITION -_ NEW NORMAL BELOW ABOVE I —FARM Acre Value Per Value - Acre Tillable FRONTAGE ON WATER Woodland FRONTAGE ON 'ROAD �Z C,"' 3 �Y, <: 74 ✓ Meadowland DEPTH 3 House Plot BULKHEAD Total DOCK r COLOR TRIM B � p tHU Foundation p Both Dinette z v s`o ement PART Floors Ext. Walls �R c - Interior Finish a c"" LR. Fire Place Heat DR. 4, 6 z Z )3 1 6 Type Roof Rooms 1st Floor SR. — - 1 1 v f{ 9 h o 6 7� Recreotion Room Rooms 2nd Floor FIN. B r , - n,i,rP.WaV OwN OF SOUTH O PROPERTY RECORD CARD I CJ 'Z 114 - I 1 OWNER STREET VILLAGE DIST. SUB. LOT FORMER OWNER N E ACR. S W TYPE OF BUILDING RES. SEAS. VL FARM COMM. C�. MILS. Mkt. Value 4 i LAND IMP. TOTAL DATE REMARKS _ 0,, :S �r � - S - "Y"� -> d 4r _� ?.ter y a i fap Tillable FRONTAGE ON WATER Woodland FRONTAGE ON ROAD Meadowktnd DEPTH House Plot BULKHEAD Total G� RECEIVED 16 1999 a� _ JUN 1 61999 SUPREME COURT OF THE STATE OF NEW YORKrc � COUNTY OF SUFFOLK ---------------------------------------------------------------x In the Matter of the Application of SOUTHAMPTON LUMBER CORPORATION, Petitioner, Assigned to: For a Judgment pursuant to Article Index No. 9 9 - 1 3 S 6 S'' 78 of the CPLR - against - NOTICE OF PETITION GERARD P. GOEHRINGER, JAMES DINIZIO, JR.,: LYDIA A. TORTORA, LORA S. COLLINS and GEORGE HORNING, constituting the Zoning Board of Appeals of the Town of Southold, Respondents. ---------------------------------------------------------------x PLEASE TAKE NOTICE that, upon the annexed Petition of Southampton 1. Lumber Corporation, verified the 15th day of June, 1999, an Application will be made to this Court at a Special Term thereof at the courthouse located at Griffing Avenue, Riverhead, New York, on the JV day of July, 1999 at 9:30 A.M., for a Judgment granting the relief demanded in the Petition and for such other relief as to the Court may seem just and proper. A Verified Answer and supporting affidavits, if any, must be served at least five days before the return date of this Application. cc: Town Board Town Attorney ZBA Neefus-Stype Agency Inc. Wm Mullens Jr. PLEASE TAKE FURTHER NOTICE that, pursuant to Section 7804 of the Civil Practice Law and Rules, you are directed to file with the Clerk of the Court your answer, and answering affidavits, together with a certified transcript of the record of the proceeding under consideration, together with the entire official file containing the records of the Petitioner herein held by the Respondents as official records kept by the Respondents herein. Suffolk County is designated as the venue of this proceeding on the basis that the premises which are the subject of this action are located in the Town of Southold, County of Suffolk, New York and that the office of the Respondents is in the Town of Southold, County of Suffolk, New York. MATTHEWS & HAM Attorneys for Petitioner Office and P. 0. Address: 45 Hampton Road -Southampton, NY 11968 Telephone: (516) 283-2400 Dated: June 15, 1999 To: GERARD P. GOEHRINGER JAMES DINIZIO, JR. LYDIA A. TORTORA LORA S. COLLINS GEORGE HORNING Constituting the Zoning Board of Appeals of the Town of Southold 53095 Main Road P. 0. Box 1179 Southold, NY 11971 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK BLED ---------------------------------------------------------------x JUN 16 1999 In the Matter of the Application of LxDWARD P. ROMAINE SOUTHAMPTON LUMBER CORPORATION, COUNTY©LEAK Petitioner, For a Judgment pursuant to Article Index No. 9 78 of the CPLR - against,- PETITION GERARD P. GOEHRINGER, JAMES DINIZIO, JR., LYDIA A. TORTORA, LORA S. COLLINS, and GEORGE HORNING, constituting the Zoning Board of Appeals of the Town of Southold, Respondents. ---------------------------------------------------------------x Petitioner SOUTHAMPTON LUMBER CORPORATION, by its duly appointed and authorized Secretary, Robert C. Osborne, respectfully alleges: 1. Petitioner is a corporation created under and by virtue of the laws of the State of New York and is the owner of real property situate at 13650 Main Road, Mattituck, Town of Southold, County of Suffolk and State of New York and designated on the Suffolk County Tax Map as District 1000, Section 114, Block 11, Lot 24.3 (the "subject premises"). The subject premises, which are more particularly described on Exhibit A hereto, are located in an HB (Hamlet Business) Zone under Chapter 100 (Zoning) of the Code of the Town of Southold (the "Zoning Code"). 2. Upon information and belief, Respondents, GERARD P. GOEHRINGER, JAMES DINIZIO, JR., LYDIA A. TORTORA, LORA S. COLLINS and GEORGE HORNING, at all times herein mentioned, constituted and continue to constitute the Zoning Board of Appeals of the Town of Southold, of which Gerard P. Goehringer is Chairman. 3. The subject premises were acquired by Petitioner in November 1983 from Reeve Lumber & Woodworking Co., Inc. and, at or about the same time, the Town of Southold issued a Certificate of Occupancy for the subject premises that covered Petitioner's intended use thereof for a "lumber and woodworking business". Upon information and belief, the subject premises were located in C-Light Industrial Zone under the Zoning Code then in effect but the neighborhood in which the subject premises are situated was rezoned to the HB (Hamlet Business) Zone in 1989. Although Petitioner has not been engaged in the storage and sale of lumber and other building materials since 1993, the subject premises have been used for woodworking purposes under the 1983 Certificate of Occupancy since Petitioner has been the owner continuously to the date hereof. 4. In connection with a proposed sale of the subject premises, in or about December 1998 Petitioner applied to the Building Inspector of the Town of Southold for an updated current.Certificate of Occupancy for the same use covered by the 1983 Certificate of Occupancy. In connection with that application, Petitioner provided the Building Inspector with proof that, notwithstanding the cessation of lumber yard activities in 1993, wc the subject premises had been used for woodworking purposes at least since 1989 and continued to be used for such purposes without interruption past 1993 and up to the present time. Petitioner's application was disapproved by the Building Inspector on the ground that the lumber yard use was not a permitted use in the HB Zone,..that it.had been discontinued for more than two years and that it therefore could not be restored without a variance in accordance with Article XXIV, Section 100-241.G of the Zoning Code. 5. In February 1999, Petitioner submitted an Application to Respondents for a variance from the provisions of Article XXIV, Section 100-241.G of the Zoning Code. 6. On March 25, 1999, after due notice, Petitioner's Application came on for a hearing before Respondents. At such hearing, Petitioner presented legal arguments to the effect that Petitioner's use had not been discontinued under Section 100-241.G of the Zoning Code and that Petitioner was therefore entitled to the updated current Certificate of Occupancy as a matter of right without the necessity of a variance under that Section. Petitioner also presented ample evidence justifying the granting of the variance by reason of the fact that the subject premises, already improved with large structures designed for the storage of building materials, were not well suited for those uses that are permitted in the HB Zone and that the variance would have no adverse impact on the character of the immediate neighborhood or the community as a whole. The March 25, 1999 hearing was closed after Petitioner had presented its.oral and written evidence and responded to the objections of a neighboring property owner. 7. Complying with a request made by the same objecting property owner, Respondents re-opened the hearing of Petitioner's Application and the hearing was continued and closed again on April 22, 1999. Petitioner appeared by its attorney at the re-opened hearing as did two neighboring property owners who spoke in favor. of Petitioner's Application. The objecting property owner's written argument was accepted into the record but that owner did not appear in person or present any additional evidence. 8. By resolution adopted at a meeting held on May 5, 1999 and filed with the Town Clerk of the Town of Southold on May 18,. 1999, Respondents, other than George Horning who was absent from the May 5 meeting, denied Petitioner's-Application as applied for. Attached hereto as Exhibit B is a copy of Findings, Deliberations and Determination of Respondents, filed May 18, 1999. 9. The Findings, Deliberations and Determination of Respondents, in denying the relief requested in Petitioner's Application, was and is unsupported by substantial evidence, without rational basis, an abuse of discretion, unconstitutional, arbitrary, capricious, improper and contrary to law. 10. Thirty days have not elapsed since the determination denying Petitioner's Application was filed with the Town Clerk of the Town of Southold. 11. No previous application for the relief sought herein has been made to this or any other Court. WHEREFORE, Petitioner respectfully requests that a final judgment be entered herein reversing, annulling and setting aside the determination of Respondents and directing Respondents to grant the relief requested in Petitioner's Application, and for such other and further relief as the Court deems just and proper. Dated: June 15, 1999 SOUTHAMPTON LUMBER CORPORATION By � C�/i/► e Robe . Osborne, Secretary STATE OF NEW YORK ) SS.: COUNTY OF SUFFOLK ) Robert C. Osborne, being duly sworn, deposes and says: That he is the Secretary of the Petitioner in this proceeding; that he has read the foregoing Petition and knows the contents thereof; and that the same is true to his knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters he believes it to be true. � wv✓/ Robert C. Osborne Sworn to before me this 15th day of June, 1999 opLL . Notary Public V 004M ME SONHAM of Yes Qa�GMW In Suffdk county ffllYSlodt ExPlres July 39. ?-®0o EXHIBIT A to PETITION DESCRIPTION OF SUBJECT PREMISES All that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being at Mattituck, Town of Southold, County of Suffolk and State of New York, being more particularly bounded and described as follows: BEGINNING at a point on the southerly side of Main Road at the northeast corner of the premises being described herein and the northwest corner of land now or formerly of Mattituck Free Library, said point being distant 533.50 feet westerly as measured along the southerly side of Main Road from the cornet-formed by the intersection of the westerly side of Reeve Avenue and southerly side of Main Road; RUNNING THENCE from said point or place of beginning along land now or formerly of Mattituck Free Library first above mentioned, South 05 degrees 46 minutes 00 seconds-East, 392.18 feet to land now or formerly of H.R. Reeve, Sr. Est.; THENCE along said land the following three (3) courses and distances: 1) South 83 degrees 34 minutes 30 seconds West, 146.27 feet; 2) North 11 degrees 00 minutes 00 seconds West, 15.50 feet; and 3) South 79 degrees 47 minutes 00 seconds West, 35.00 feet to land now or formerly of Glutzbeck; THENCE along said land the following two (2) courses and distances: 1) North 05 degrees 53 minutes 40 seconds,West, 22.00 feet; and 2) South 74 degrees 46 minutes 00 seconds West, 1-11.40 feet to land now or formerly of R. Nine; THENCE along said land North 20 degrees 55 minutes"00 seconds West, 14.35 feet to land now or formerly of Comiskey; THENCE along said land the following two (2) courses and distances: 1) North 73 degrees 34 minutes 00 seconds East, 74.60 feet; and 2) North 04 degrees 14 minutes 00 seconds West, 320.39 feet to the southerly side of Main Road; THENCE along the southerly side of Main Road the following two (2) courses and distances: 1) North 77 degrees 11 minutes 40 seconds East, 145.96 feet; and 2) North 74 degrees 40 minutes 10 seconds East, 70.50 feet to the point or place of BEGINNING. EXHIBIT B to PETITION APPEALS BOARD MEMBERS` O�UfQ(,Yc ®Gym Southold`Town Hall 53095 Main Road Gerard P. Goehringer, Chairman = P.O. Box 1179 James'Dinizio,Jr. ti Lydia A.Tortora 1�5 Southold, New York 11971 � • ZBA Fax (516)765-9064 . Lora S. Collins '1'�fj®d �.�®� Telephone (51.6) 765-1809 George Horning BOARD OF APPEALS TOWN OF.SOUTHOLD FINDINGS, DELIBERATIONS AND DETERMINATION MEETING OF MAY 5, 1999 Appl. No. 4668 - SOUTHAMPTON LUMBER CORP. 1000-114-11-24.3 STREET & LOCALITY: 13650 Main Road-, Mattituck DATE OF PUBLIC HEARING: March 25, 1999 and April 22, 1999 FINDINGS OF FACT I. BASIS OF APPEAL: The applicant,-Southampton Lumber Corporation, applied to the Building Department on December 16, 1998 for a new Certificate of Occupancy, as an."update" to a 1993 Certificate of Occupancy No. 12023 to allow a lumber yard and wood-working business. The Building Department on January 13, 999 issued a Notice of Disapproval under Article-XXIV, Section 100-242G to re-institute lumber yard:use in this Hamlet Business (HB) Zone. Article XXIV,`Section 100-241G of the Southold Town Zoning Code states: Except as provided hereinafter, nonconforming use of buildings or open land existing on the effective date of this chapter or authorized by a building permit issued prior thereto, regardless of change,of title, possession or occupancy or right thereof, may be continued- indefinitely, except that such building or use: G. Whenever a nonconforming use of a building or premises has been discontinued for a period of more than two (2)' years or has been changed to a higher classification or to a conforming use, anything in this Article to the contrary notwithstanding, the nonconforming use of such building or premises shall no longer be permitted unless a variance therefor shall have been granted by the Board of Appeals." REQUEST MADE BY APPLICANT:. Southampton Lumber Corp. requests permission to re-establish a lumber yard and woodworking business at 13650 Main Road in the-Hamlet of Mattituck, NY, by way of a determination from the Board of Appeals reversing the Building Inspector's Notice of Disapproval dated 1/13/99 for-an`updated'Certificate of Occupancy. PROPERTY FACTSIDESCRIPTION: The applicant's property is located along the south side of the Main Road (a/k/a State Route 25) in Mattituck in the central business district of Mattituck. Until 1989, the applicant's property was zoned C-Light Industrial. In 1989, the Town of Southold adopted new zoning regulations and zoning maps, and the property was rezoned Hamlet Business. 'Page 2-May 5,1999 Re:_ 1000-114-11-24.3 ZBA Appl. #4668-Southampton Cumber Corp. The property is improved With buildings and structures as more particularly shown on the November 30, 1998 survey prepared by Joseph A. Ingegno. REASONS FOR BOARD ACTION, DESCRIBED BELOW: The Zoning Board held a public hearing on this matter on March 25, 1999 and April 22, 1999, at which time written and oral evidence were presented. After carefully reviewing all of the testimony, documentation, as well as personal observations of Members of the Board and other evidence, the Board of Appeals finds the following facts to be true and relevant: 1. Since prior to zoning in 1957 and runtil 1983, Reeve Lumber and Woodworking Company operated a lumber yard and woodworking business at the site. The property was zoned C-Light Industrial, and lumber yards were permitted uses in that zoning district. 2. On October 29, 1983, a Certificate of Occupancy No..Z12023 was issued to Reeve Lumber & Woodworking Co., stating that the buildings existed prior to April 23, 1957 and that it "substantially conformed'for a "lumber and woodworking business" 3. On November 18, 1983 Reeve Lumber and Woodworking Co. sold its business to Southampton Lumber Corp., which owned and operated several. yards .in Southampton, East Hampton and Moriches. 4.` . In 1989, the Town updated its zoning regulations and maps. The applicant's property was rezoned from C-Light Industrial to HB Hamlet Business. The lumber yard use continued as a pre- existing nonconforming use until 1993. The woodworking business was a permitted use in the C- Light Industrial District and continued to be a conforming permitted use subsequent to the 1989 rezoning and to this date. 5. From 1983 until 1993, Southampton Lumber Corp. operated the Mattituck business primarily as a dumber yard. In 1993, the Company went out of business, closed its doors to the public, liquidated most of its assets, 'and subsequently sold the lumber yards in Moriches, Southampton and East Hampton, all according to testimony of the applicant's attorney. Applicant's attorney further testified that the company is owned by 200 shareholders that, when faced with the effect of"the recession and some competitive disadvantages," management knowingly chose to preserve Shareholder values by essentially going out of business rather than "continue it as a going business" 6. Since 1993, the applicant, through its attorney; stated that it ceased its operation as,a lumber yard, and offered the property for sale with the same use, operating as a carpentry workshop for woodworking. It is the position of the applicant that for these reasons it believes the lumber yard use"continued:" 7. The Board finds that lumber yard use and woodworking use were two separate business uses, one being conforming (woodworking), and the other use which has been discontinued since 1993 as non-conforming (lumber yard). Page 3-May 5, 1999 Re: 1000-114-11-24.3 ZBA Appl. #4668-Southampto .-nber Corp. 8. The Code does not define a "lumber yard," per se. However, a "craftsmen's Workshop" is a permitted use in the Hamlet-Business Zone District under Section 100-91A(11)., A lumber yard is a permitted use in the Light-Industrial (LI) Zone District, Section 100-141A(3) and (4) under "wholesale businesses, warehouse and building material storage and sale," and "building businesses or yards." A lumber yard is not permitted in the Hamlet-Business Zone District. 9. Affidavits and testimony were received to show that the property after 1993 did continue for certain woodworking activities, while the property was listed on the market. This woodworking use is not inconsistent with the Hamlet Business Zone District and is not nonconforming. The record does not include evidence or information to show that the other "nonconforming" use as a lumber yard existed after 1993. 10. It is known that abandonment occurs when there has been a complete cessation of the nonconforming use. The record shows that the lumber yard did completely cease to operate in 1993 and has not operated since that time. 11. The applicant, Southampton Lumber Corp. and the applicant's attorney, admitted in its application that the corporation voluntarily ceased its lumber operations at this site during 1993 and that'no other lumber business was at the site since 1993. 12. Supplementing the applicants'testimony, it'is the Board's personal knowledge that the lumber yard operations have been discontinued since 1993, and that no other lumber business was at the site since 1993. 13. That the applicant continued to operate a carpentry workshop, with no lumber yard use since 1993. Wholesale fencing was made and was not sold from the premises or stored for sale to the public or for other purposes on this site. 14. That the continued operation for woodworking, carpentry workshop is a permitted use in this Hamlet Business Zone District and therefore is conforming (rather than non-conforming). The Building Department could issue a Certificate of Occupancy for a carpentry workshop, a wood- working business, which is a permitted use. Even a retail store is a use permitted in this Hamlet Business Zone District under Section 100-91A(6). 15. That the Board decided only whether the preexisting use as a lumber yard use had been completely abandoned or not. The Board did not treat this application as a use variance, which is a remedy open to the applicant for a lumber yard use in the Hamlet Business Zone District. 16. Based on the record and personal knowledge,the Board finds that: a) There were two uses existing prior to 1993: a nonconforming lumberyard and a conforming carpentry workshop (wood-working business), _Page 4— May 5, 1999 Re: 1000-114-11-24.3 ZBA Appl. No. 4668 - Southampton Lumber Corp b) There was a zone change in 1989 which does not permit a lumber yard in the Hamlet Business Zone District, and which does permit a carpentry. workshop for wood-working activities. c) That it is undisputed that the nonconforming lumberyard discontinued its use and operations in 1993, and that no other lumber business was present subsequent to 1993. d) That the nonconforming use discontinued for a period of at least two years, which is undisputed. e) That only one business continued subsequent to 1993 and that business was a carpentry workshop for wood-working activities, a conforming use. f) That applicant is entitled to a Certificate of Occupancy for a carpentry workshop, wood- working business (without a lumber yard nonconforming use). 17. The applicants have not proven, as required by law in this record, that the lumber yard operation continued as a non-conforming use. RESOLUTION/ACTION: Now, therefore, on motion by Member Tortora, seconded by Member Collins, it was RESOLVED, to DENY the application as applied for. VOTE OF THE BOARD: AYES: GOEHRINGER, DINIZIO, TORTOR,�, COLLINS. (Absent was Member Horning of Fishers Island.) This RESOLUTION was dOAED (4-0GEEHRI ER CH For Filing by 5/18/99 j SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK , ------------------------------------X Index No. Q_ / 3 61 S- In the Matter of the Application of SOUTHAMPTON LUMBER CORPORATION, Petitioner, For a Judgment pursuant to Article 78 of the CPLR - against - CERTIFICATION BY ATTORNEY GERARD P. GOEHRINGER, JAMES DINIZIO, JR., LYDIA A. TORTORA, .LORA S. COLLINS and GEORGE HORNING, constituting the Zoning Board of Appeals of the Town of Southold, Respondents. ---—----------------------------------------------------------x I, Barbara T. Ham, Esq. of Matthews & Ham, am an attorney duly admitted to the practice of law in the State of New York, and I am the attorney for the Petitioner, in the above captioned Article 78 proceeding. HEREBY CERTIFY, pursuant to Sec. 130-1.1-a of the Rules of the Chief Administrator (22 NYCRR), to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, that neither the presentation of the REQUEST FOR JUDICIAL INTERVENTION, NOTICE OF PETITION and PETITION in this action, nor the contentions therein, are frivolous as defined in subsection (c) of Sec. 130-1.1 of the Rules of the Chief Administrator (22 NYCRR). Dated: June 15, 1999 � . ;r Barbara T. Ham B 399—Request(or judicial intervention,2 M 202.6.1-96 UCS-940(REV 1/96) JULIUS BLUMBERG.INC.,PUBLISHER - 62 WHITE STREET,NEW YORK.N.Y.10013 REQUEST FOR JUDICIAL INTERVENTION— For Clerk Only / Index No. `T!` J Supreme Court, Suffolk County Date Purchased June 1&, 1999 PLAINTIFF(S): -------------------•-•------ --•-....................---.............-•-- SOUTHAMPTON-LUMBER CORPORATION JOLFM PAID IAS entry date JIMi 16 W9 ------------------------------------------------------------••-•--•------. Judge assigned MWAM F.ROMAINE IM(OF NUFFOIKGWO DEFENDANT(S): GERARD P. GOEHRINGER, JAMES DINIZIO, JR., ......"........................"......"..... RJI Date LYDIA A. TORTORA, LORA S. COLLINS and GEORGE HORNING, constituting the Zoning Board of Appeals of the Town of Southold June..... 1999__ Date issue joined: ___________ Bill of particulars served: ❑Yes 11 No ,____NATURE OF JUDICIAL INTERVENTION (check.ONE box only AND enter information) ❑ Request for preliminary conference 1I'Notice of petition(return date........Zvjy....�9.,..1..r1..�(.�1.....................) ❑ Note of issue and/or certificate of readiness Reliefsought................ ..hL 1e-....-7.$.---•------•-•--•---------------------•-----------••----- ❑ Notice of motion(return date........................................................................) ❑ Notice of medical or dental malpractice action(specify........................ Reliefsought.......................................................................................................... ❑ Order to show cause -----•-----------------------------------------.......................................................................................... (Clerk enter return date ..................................................................................) ❑ Statement of net worth Relief sought.......................................................................................................... 0 Writ of habeas corpus ❑ Other ex parte application(specify.......................... .................................... ' ❑- Other(specify....................................................................................................... -------•--••-•••-•---------•---------------------------------------•---•-----•--------•-----...-------------------•----------......-----) --------------------•---•--•---•-----------•-------------..........---------•-----------------.........--•--........---•-•--•-••••) NATURE OF ACTION OR PROCEEDING(check ONE box only) Matrimonial Torts ❑ Contested —CM Malpractice ❑ Uncontested —UM ❑ Medical/Podiatric —MM Commercial ❑ Dental —DM ❑ Contract —CONT ❑ *Other Professional..........................................................................—OPM ❑ Corporate —CORP ❑ Motor Vehicle —MV ❑ Insurance(where insurer is a party,except arbitration) —INS ❑ *Products Liability.................................................................................... —PL ❑ UCC(including sales,negotiable instruments) —UCC ❑ Environmental —EN ❑ *Other Commercial.......................... ...—OC ❑ Asbestos —ASB Real Property ❑ Breast Implant —BI ❑ Tax Certiorari —TAX ❑ *Other Negligence .........:......................................................................—OTN ❑ Foreclosure —FOR ❑ *Other Tort(including intentional) ....................................................—OT ❑ Condemnation —COND -------•----------------- ....---------..::... ❑ Landlord/Tenant —LT Special Proceedings 0 *Other Real Property ..........................................................................—®RP ❑ Article 75(Arbitration) —ART 75 Other Matters ❑ Article 77(Trusts) =ART 77 ❑ *....................• ..............—OTH Rl Article 78 —ART 78 ❑ Election Law —ELEC ❑ Guardianship(MHL Art.81) —GUARD 81 ❑ *Other Mental Hygiene .......--•-•--•---•--...----••....................................—MHYG ❑ *Other Special Proceeding...........................:.............:.......:...................—OSP *If asterisk used please specify further, Check"YES"or"NO"for each oL-111following questions.Is this action/proceedin( �tinst a: J YES ❑ NO Municipality:(specify ,Town„.of y: (specify............ ❑ YES IN NO Public Authority: p y Southold................................................... ................................................................................. ...................................................................................) ................................................................................) ❑ YES ® NO Does this action/proceeding seek equitable relief? ❑ YES IN NO Does this action/proceeding seek recovery for personal injury? ❑ YES LX NO Does this action/proceeding seek recovery for property damage? All Cases Except Contested Matrimonials: Estimated time period for case to ready for trial(from filing of RJI to filing of Note of Issue): I 0-12 months ❑ 12-15 months Contested Matrimonial Cases Only: (Check and give date) Has summons been served? ❑ No ❑ Yes,Date............................................................ Was a Notice of No Necessity filed? ❑ No ❑ Yes,Date............................................................ Attorney(s)for plaintiff(s): Name Address Phone Matthews & Ham 45 Hampton Road (516) 283-2400 Southampton, NY 11968 i 'a Attorney(s)for defendant(s): ' Name Address Phone t Parties appearing pro se(without attorney)should enter information in space provided above for attorneys. INSURANCE CARRIERS: RELATED CASES:(if NONE,write"NONE"below) Index Court Nature of relationship I affirm under penalty of perjury that,to my knowledge,other than as-noted above,there are and have been no related actions or proceedings,nor has a request for judicial intervention previously been//filed in this action or proceeding. Dated: June �� 1999 ?`�� 1 �.: (Signature) Barbara T. Ham Petitioner .............................................................................................................................................. (Print or type name) (Attomey for) Attach rider sheets if necessary to provide required information. ATI.ORNErSCERTIFICATION Index No. 99— Year. 19 99 ADMISSION OF SERVICE SUPREME COURT OF STATE OF NEW YORK The undersigned acknowledges receipt of a copy of MATE OF NEW YORK COUNTY OF the within tJb}7Ge 0,C Pe4on 4- -Pe 1� COUNTY OF SUFFOLK The undersigned, an attorney admitted to practice on Ltnc(a Cooper, Dep�p4y Chkl9�jy n the State cf New Yoi4 does hereby certify,Pursuant at tJd� 1 1 q gy o clock "-M. -o Section J105 CPLR, that I have compared the .vithin In the Matter of the Application of SOUTHAMPTON LUMBER CORPORATION •••. ........................ with the original and have found it to be a true and Attorneys)f0i :omplete.copy thereof b Q�...... ........ � .....�../°. .C ... 19 v y:...L:. ^i. .. o Dated GERARD P. GOEHRINGER, JAMES ................................................................................... DINIZIO, JR. , LYDIA A. TORTORA, Type or Print Name Below Signature LORA S. COLLINS and GEORGE HORNING, AFFIDAVIT OF SERVICE BY MAIL constituting the Zoning Board of NOTICE OF ENTRY OR SETTLEMENT Appeals of the Town of Southold STATE OF NEW YORK (Check and complete appropriate box and section) COUNTY OF Sir(s): being sworn,says: PLEASE TAKE NOTICE that a I am not a party to this action; I am over 18 years of age;I reside at Of which the within is a(true)(certified)copy ❑ NOTICE OF ENTRY On 19 1 served was duly entered in the within named court NOTICE OF PETITION on 19 the within and ❑ NOTICE OF SETTLEMENT upon will be presented for settlement to the Hon. PETITION one of the judges of the within named court at the the attorney(s)for in this Courthouse at Barbara T. Ham action, at MATTHEWS & HAM on 19 Attorney(s)for Petitioner the address designated by said attorney(s) that at o clock M. Office and Post O ice Address purpose by depositing a true copy of same i sed ffl ff in a postpaid, properly addressed wrapper, ... an Dated 19 No. 45 HAMPTON ROAD official depository under the exclusive care and custody of the United States Postal Service within the Yours,etc., SOUTHAMPTON, NEW YORK i 1968 State of New York. MATTHEWS & HAM 516-263-2400 Attorney(s)for ........................................................ .... office and Post Office Address T .. TO Type or Print Name Below Signature No. 45 HAMPTON ROAD Attorneys)for Sworn to before me SOUTHAMPTON, NEW YORK 1 196B this day of 19 TO Attorney(s)for 1 �4 �v UFFO`,�c JEAN W. COCHRAN GREGORY F.YAKABOSKI o�0 �Gy� Supervisor TOWN ATTORNEY .� y Z Town Hall, 53095 Route 25 `ip • P.O.Box 1179 y MARY C.WILSON Southold,.New York 11971-0959 ASSISTANT TOWN ATTORNEY ��j � Telephone(631) 765-1889 Fax(631) 765-1823 E-mail:townattorney@southold.org OFFICE OF THE TOWN ATTORNEY l5 0 L/ IS TOWN OF SOUTHOLD APR - 5? Memorandum To: Gerard Goehringer, Chairman ZBA members From: Gregory F. Yakaboski, Esq. Town Attorney Date: April 5, 2000 Re: Southampton Lumber Corp. v. ZBA Attached you will find a copy of the decision rendered by the Hon. Marquette L. Floyd, Supreme Court Justice. Southampton Lumber Corp. 's challenge of the ZBA decision has been denied.. /nid enc. 1 T2, 111111 14..14 51bti7d43 4Z �,. I nde ado. , U5 19 9 9 ,yhc% Form order Chamber No. 00-041 ,/ ,3yjppj= COURT - STATE OF NEW YO TRIAL/SpECIU TEpA,, pART 23 SUFF'OLK COUNTY PRESENT- :..i DATE.o 7/19 �18)' e 2 0 0 0 Hon. IrI7�RQLJFsTTE L. FLU_ - MOTTOIS NO. a (901 ) CDISPS-- J JUSTICE CROSS MOTIONS (,002) CDISPSUBJ In the Matter of the Application of PLTr,S/PET'S ATTY SOUTHAMPTON LUMBER CORPORATION, MATTHEWS & HAM 45 Hampton Road Southampton, New York 11968 Petitioner, For a Judgment pursua to Article 78 of the CPLR DE 'S® Sp'S ATTY® - against - GREGORY P. YAKABOSKI, ESQ. Southampton Town Attorney GERARD P. GO HRINGER, JAMES .IDINIZIO, southampton Town Hall JR. , LYDIA A. TORTORA, LORAIS, P:0. Box 1179 COLLINS and GEORGE HO ING� Southold, New York 11971 constituting the Zoning Board of Appeals of the Town of Southold, Respondent. itpoza the. foll®wing papers numbered I to Z read on thisortinelea7ererQces-�;A-Ing. ero#gCxoan rmota.oa a. °�sm° m Notice of Motion/order to show Ouse and supp g papers supporting papers ;-. .Answering Affidavits and supporting papers Replying. Affidavits �d supporting papers ; other a (and after hearing counsel in aupport. and opposed to the motion); it ORDERED that tY�is Article 78 proceeding- that seeks to set aside the deni= of are application for a use variance is considered under CPLR 78104 (f) and is denied® The cross motion seeking to dismiss the petition is granted. n and Petitioner owned ildin .n real property in n uthe datedwCertifiCate of of®Occupanc_ applied to the Town Brxilding Inspector fora p first issued in 1983, for "lumber; and woodworking business, " ' a a conwas designated However, in 19891 a new zoning district Hamlet Business (I�B) and permitted "woodworking/carpentry uses" but did not permit "J.umbe�ard uses . " ing the new zoning district, Petitioner continue Apparently, notwithstand to operate a "lumberyard" until 1993 when said use was abandoned. As a result, the non-conforming "lumberyard use" would not be permitted again "unless a variance shall have been granted by the Board of Appal-s Southold Town Code 100-241 (G)' . UJ/J1/GUUU 1Ye JY• J1VVddYJYJ u.....+'�"` " `" ' °�""" 1-HVG l �� Page 2: Index No' ."S"I'"" The Petitioner does not deny the non-conforming use and has failed to, interpose any opposition to the Respondents' motion to dismiss. Accordingly, inasmuch as the Respondent has informed the court that the Petitioner has applied to the zoning Board of Appeals for a use variance for the subject premises, thereby acknowledging that same is required, the motion to dismiss is granted. The petition is dismissed® Submit judgment dismissing petition. Dated: Jarivarlr 3.1. 2®0 0. •C® % � PPEALS BOARD MEMBERS `✓ ®�®S�fFO(k�, ® Southold Town Hall Gerard P. Goehringer, Chairman �� ��� 53095 Main.Road James Dinizio,Jr. y P.D. Box 1179 Lydia A.Tortora j Southold,New York fl.971 Lora S. Collins �Ji ® ®�� ZBA Fax(516)765-9064 George Homing Telephone� Telephone(516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD May 24, 1999 Stephen L. Ham III, Esq. 45 Hampton Road Southampton, NY 11968 Re: Southampton Lumber Application Dear Mr. Ham: Please find attached copy of response received. from the Suffolk County Department of Planning for your update and file. Sincerely yours, GERARD P. GOEHRINGER CHAIRMAN Enclosure COUNTY OF SUFFOL.K ROBERTJ. GAFFNEY SUFFOLK COUNTY EXECUTIVE STEPHEN M. JONES, A.I.C.P. DEPARTMENT OF PLANNING May 20, 1999 MAY 2 4)ggg � I Town of Southold Zoning Board of Appeals Re: Application of"Southampton Lumber Corporation", Town of Southold(#4668). Gentlemen: Pursuant to Sections A 14-14 to 23 of the Suffolk County Administrative Code,the above referenced application* is not within the jurisdiction of the Suffolk County Planning Commission. *For a determination as to the legal nonconforming status of a lumber yard and woodworking business. Very truly yours, Stephen M. Jones Director of Planning S/s Gerald G.Newman Chief Planner GGN:cc C:\111 CC\ZONING\ZONING\WORKINGINON-JUR\99NJ\SD4668.MAR LOCATION MAILING ADDRESS H. LEE DENNISON BLDG. -4TH FLOOR m P. 0. BOX 6100 ® (5 1 6) 853-5I 90 100 VETERANS MEMORIAL HIGHWAY HAUPPAUGE, NY 1 1 788-0099 TELECOPIER(5 16) 853-4044 o� y1 co = of BOARD OF APPEALS TOWN OF SOUTHOLD (1-516) 765-1809 tel. (1-516) 765-9064 fax Pursuant to Article XIV of the Suffolk County Administrative Code, The Board of Appeals of the Town of Southold, New York, hereby refers the following to the Suffolk County Planning C omission: x Variance from the Zoning Code, Article XXIV Section 100-241G Variance from Determination of Southold Town Building Inspector Special Exception, Article Section Special Permit Appeal No : 4668 Applicant: Southampton Lumber Corporation Location of Affected Land : 13650 Main Rd . , Mattituck , NY County Tax Map Item No . : 1000- 114-11-24 . 3 Within 500 feet of: Town or Village Boundary Line Body of Water (Bay, Sound or Estuary) 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 Within One Mile of a Nuclear Power Plant Within One Mile of an Airport Comments : Applicant is requesting permission . to Reinstitute lumber yard use Copies of Town file and related documents enclose for you review. Dated : a'1%7 1999 APPEALS BOARD MEMBERS Southold Town Hall Gerard P. Goehringer, Chairman =� G'L� 53095 Main Road James Dinizio,Jr. y P.O. Box 1179 = Lydia A.Tortora � - Southold,New York 11971 Lora S. Collins y o�� ZBA Fax(516) 765-9064 George Horning 91 �� Telephone(516)765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD May 17, 1999 ' Stephen L. Ham III, Esq. 45 Hampton Road Southampton, NY 11968 Re: Appl. No. 4668 - Southampton Lumber Corp. Dear Mr. Ham: Enclosed please find a copy of the Appeals Board's determination rendered May 5, 1999. A copy of this written determination has also been furnished to the Building Department for placement in its pending application file for a certificate of occupancy and update. Very, ruly yo , GE D P. GOEH NGE CHAIRMAN Enclosure Copy of Decision to: Building Department Fax Transmission sent 5/18 a e - Page 4—May 5, 1999 ` Re: 1000-114-11-24.3 ZBA Appl. No. 4668- Southamp6r 'Lumber Corp. b) There was a zone change in 1989 which does not permit a lumber yard in the Hamlet Business Zone District, and which does permit a carpentry workshop for wood-working activities. c) That it is undisputed that the nonconforming lumberyard discontinued its use and operations in 1993, and that no other lumber business was present subsequent.to 1993. d) That the nonconforming use discontinued for a period of at least two years, which is undisputed. e) That only one business continued subsequent to 1993 and that business was a carpentry workshop for wood-working activities, a conforming use. f) That applicant is entitled to a Certificate of Occupancy for a carpentry workshop, wood- working business (without a lumber yard nonconforming use). 17. The applicants have not proven, as required by law in this record, that the lumber yard operation continued as a non-conforming use. , RESOLUTION/ACTION: Now, therefore, on motion by Member Tortora, seconded by Member Collins, it was RESOLVED, to DENY the application as applied for. VOTE OF THE BOARD: AYES: GOEHRINGER, DINIZIO, TORTORA, COLLINS., (Absent was Member Horning of Fishers Island.) This RESOLUTION was duly A ED (4-0 . ''GERARD P. GOEHRI ER CHAIRMAN For Filing by 5/18/99 a olutr.::> rgJ § 100-91. Use regulations. In the HB District, no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part, for any uses except the following: A. [Amended 5-9-1989 by L.L No. 6-1989; 5-16-1994 by L.L. No. 9-1994; 2-7-1995 by L.L. No. 3-1995] Permitted uses. The following are permitted uses and, except for those uses permitted under Subsection A(1), A(2) and A(19) hereof, are subject to site plan approval by the Planning Board: (1) Any permitted use set forth in and regulated by § 100-31 A(1) and (3) of the Agricultural-Conservation District. (2) Any permitted uses as set forth in and as regulated by § 100-42A(2) of the Hamlet Residential District. (3) Boardinghouses and tourist homes. (4) Business, professional and governmental offices. (5) Banks and financial institutions. (6) Retail stores. (7) Restaurants, excluding formula food and take-out restaurants. [Amended 5-16-1994 by L.L. No. 9-1994] (8) Bakeshops (for on-premises retail sale). (9) Personal service stores and shops, including barbershops, beauty parlors, professional studios and travel agencies. (10)Art, antique and auction galleries. (11)Artists' and craftsmen's workshops. (12)Auditoriums or meeting halls. (13)Repair shops for household, business or personal appliances, including cabinet shops, carpenter shops, electrical shops, plumbing shops, furniture repair shops and bicycle and motorcycle shops. (14)Custom workshops. (15)Bus or train stations. 1 lfl (16)Theaters or cinemas (other than outdoor). (17)Libraries or museums. (18)Laundromats. (19)Bed-and-breakfast uses as set forth in and as regulated by § 100-31B(14). B. Uses permitted by special exception by the Board of Appeals. The following uses are permitted as a special exception by the Board of Appeals as hereinafter provided, subject to site plan approval by the Planning Board: (1) Any special exception use set forth in and as regulated by § 100-31B(3) to (6) and (13) and (14) of the Agricultural-Conservation District. (2) Multiple dwellings and townhouses. (3) Motel and hotel uses as set forth in and regulated by § 100-61B(4) of the Resort Residential (RR) District, except that minimum lot size shall be three (3) acres. [Amended 7-31-1990 by L.L. No. 16-1990] (4) [Amended 12-12-1989 by L.L. No. 23-1989] Apartments may be permitted over retail stores and business, professional and governmental offices, subject to the following requirements: (a) The explicit written approval of the Town Fire Prevention Inspector shall be obtained for the design, location, access and other safety-related elements of every such apartment. No apartment shall be permitted over filling stations, stores retailing flammable or fume-producing goods, restaurants or other businesses with kitchens or other facilities producing intense heat or any other establishment which the Fire Prevention Inspector determines to pose a greater-than-average built-in fire risk. (b) The habitable floor area of each apartment shall be at least four hundred fifty (450) square feet, but in no case more than seven hundred fifty (750) square feet. The apartment shall not be located on the first floor of the building, and the apartment shall contain all services for safe and convenient habitation, meeting the New York State Uniform Fire Prevention and Building Code and the Sanitary Code. (c) There shall be no more than three (3) apartments created or maintained in any single building. (d) Each apartment, or common hallway servicing two (2) or three (3) apartments, shall have a separate access to the outside of the building, which must be distinct from the access to uses on the first floor. (e) Each apartment shall have at least one (1) on-site off-street parking space meeting the 2 .• s standards of this chapter, conveniently located for access to the apartment. (f) Only the owner of the building in which it is proposed to locate the apartment(s) may apply for this special permit. The Board of Appeals shall require that such applicant execute such agreements, contracts, easements, covenants, deed restrictions or other legal instruments running in favor of the town as, upon recommendation of the Town Attorney, the Board shall determine to be necessary to ensure that: [1] The apartment, or any proprietary or other interest therein, will not be sold to the tenant or any other party, except as part of a sale of the entire building in which the apartment is located. [2] The apartment is made available for year-round rental. [3] The apartment is properly constructed, maintained and used, and unapproved uses are excluded therefrom. [4] Any other condition deemed reasonable and necessary to ensure the immediate and long-term success of the apartment in helping to meet identified housing needs in the community is complied with. (5) Boarding and/or tourist homes as set forth and regulated by § 100-61B(5) of the Resort Residential (RR)District. [Amended 2-7-1995 by L.L. No. 3-1995] (6) Fraternal or social institutional offices or meeting halls. (7) Drinking establishments. (8) Public garages. (9) Funeral homes. (10)EN(1)Flea markets. [Added 10-17-1995 by L.L. No. 21-1995] (11)[Added 5-16-1994 by L.L. No. 9-1994] Takeout and formula food restaurants, subject to the following requirements: (a) Adequate parking shall be provided in accordance with that required by Article XIX, Parking and Loading Areas, of this chapter. All parking spaces shall be located within reasonable walking distance of the site or three hundred (300) feet, whichever is less. The improvement or development of municipal parking may be used to satisfy this requirement. The adequacy of municipal parking shall be determined by the Planning Board as part of its site plan review procedure by conducting a parking survey of the capacity of the existing municipal parking area to accommodate the projected increase in usage due to the introduction of the subject land use. (b) An assessment of the potential traffic impacts of the proposed use must accompany 3 the long environmental assessment form. The appropriate mitigation measures must be incorporated into the site plan. (c) There shall be no counter serving outdoor traffic via a drive-in, drive-through, drive-up, drive-by or walkup window or door. (d) Exterior signage shall conform in all respects to Article XX, Signs, of this chapter and, further, may not be lit from within. (e) Advertisements, including trademark logos, may not be affixed, painted or glued onto the windows of the business or onto any exterior structures, including waste disposal receptacles and flags. (f) The physical design, including color and use of materials, of the establishment shall be compatible with and sensitive to the visual and physical characteristics of other buildings, public spaces and uses in the particular location. C. [Amended 5-9-1989 by L.L. No. 6-1989] Accessory uses. The following uses are permitted as accessory uses and, except for residential accessory uses and signs, which are subject to Article XX, are subject to site plan review: (1) Accessory uses as set forth in and regulated by § 100-31C(1) through (7) of the Agricultural-Conservation District, and subject to the conditions set forth in § 100-33 thereof.LN(2) § 100-92. Sulk, area and parking regulations. No building or premises shall be used and no building or part thereof shall be erected or altered in the HB District unless the same conforms to the Bulk Schedule and Parking and Loading Schedules incorporated into this chapter by reference, with the same force 4 Endnotes 1 (Popup) Editor's Note: Former Subsection B(10), wineries, amended 8-1-1989 by L.L. No. 15-1989, was repealed 11-26-1994 by L.L. No. 26-1994. 2 (Popup) Editor's Note: Former Subsection C(2) and (3), which regulated signs, were repealed 11-29-1994 by L.L. No. 25-1994. For current sign provisions, see Art. XX, Signs. 3 (Popup) Editor's Note: The Bulk Schedule is included at the end of this chapter, and the Parking and Loading Schedules are in §§ 100-191 and 100-192. 5 Page 2— Minutes Regular Meeting of April 1999 Southold Town Board of Appeals Appl. No. 4678 - V. Basilice Appl. No. 4680 - R. Terry Appl. No. 4665 - F. Raynor Appl. No. 4676 - A. Palumbo Appl. No. 4679 -I Rogers Appl. No. 4684 - S. Tully Appl. No. 4682 - P. Winters Appl. No. 4683 - V. Campbell Appl. No. 4675 - A. Hughes Appl. No. 4636 - P. Mortimer (project amendment) Unlisted Action and Negative Declaration (No Adverse Effect) as prepared for: Appl. No. 4681 - Michael Hughes/North Shore Yacht Sales. VOTE OF THE BOARD: AYES: MEMBERS GOEHRINGER, DINIZIO, TORTORA, COLLINS AND HORNING. This Resolution was duly adopted (5-0). II. PUBLIC HEARINGS: The Chairman read the Legal Notice, starting with the first public hearing agenda item: PUBLIC HEARINGS 6:30 p.m. Appl. No. 4668 - SOUTHAMPTON LUMBER CORP. A Variance is requested under Article XXIV, Section 100-241-G, for permission to reinstate (re-establish) use as a lumberyard and related activities, which use is nonconforming in this Hamlet-Business Zone District, at 13650 Main Road, Mattituck, NY; County Parcel No. 1000- 114-11-24.3. (Resolution adopted 4/8/99 reopened hearing for this meeting date.) (Note that a previous hearing was also held 3/25/99). Stephen L. Ham, Esq. appeared in behalf of the applicant. Charles Cuddy, Esq. appeared for Donielle Cardinale in opposition. After brief testimony, motion was made by Chairman Goehringer, seconded by Member Dinizio, and duly carried, to close the hearing. Vote of the Board: AYES: All (5-0). 6:40 p.m. Appl. No. 4677 — STEPHEN AND JENNIFER SCACE. A Variance is requested under the Southold Town Zoning Code, Article XXIV, Section 100-244 to locate a proposed dwelling with a setback at less than 55 feet from the (westerly) front property line. The subject property contains less than 79,999 sq. ft. in area and is defined as a corner lot with more than one front yard area under the Zoning Code. Location of Property: East End Road, Fishers Island, NY; County Parcel No. 1000-4-5-18. Stephen Ham, Esq. appeared for the applicants. After receiving testimony, motion was made by Chairman Goehringer, seconded by Member Tortora, and duly carried, to close the hearing. Vote of the Board: AYES: All (5-0). 6:50 p.m. The next hearing (D. Rose) was cancelled due to lack of Chapter 58 i !� Lac [ U n MAY 1 71999 Transcript of Public Hearing April 22, 1999 Southold Town Board of Appeals (Prepared by Lucy Farrell from Tape Recordings.) 6:30 P.M. - Appl. No. 4668 - SOUTHAMPTON LUMBER CORP. A Variance is requested under Article XXIV, Section 100-241-G, for permission to reinstate (re-establish) use as a lumberyard and related activities, which use is nonconforming in this Hamlet Business Zone District, at 13650 Main Road, Mattituck, N.Y. ; County Parcel No. 1000-114-11-24.3 (Resolution adopted 4/8/99 reopened hearing for this meeting date.) (Former hearing was 3/25/99.) CHAIRMAN GOEHRINGER: First hearing on the Agenda is the Southampton Lumber Corp. . This was a hearing that was reopened from the prior meeting. We closed it and at the Special Meeting, the early part of last month we opened it and we would like to ask Mr, Ham who is the gentleman that represented the applicant if he has anything for us. Somehow I thought you did Mr. Ham. MR. HAM: Yes, all of the receipts. CHAIRMAN GOEHRINGER: Thank you. What would you like to tell us Mr. Ham? MR. HAM: Well as ,you know this was reopened at the request of someone who had spoken at the last hearing. I'd like to see what others have to say about this, if I may. So, I'll defer and if nobody speaks I will have a couple of comments and we'll keep it brief. CHAIRMAN GOEHRINGER-: OK. Is there anybody else would like to speak in favor of this application? Yes ma'am. Would you state your name for the record. MS. EDSTROM: I'm Jane Edstrom. CHAIRMAN GOEHRINGER: Could you come up to the podium? Thank you. Page 2 Hearing 7' '�Iscripts April 22, 1999 - Board of Appeals MRS. EDSTROM: My name is Jane- Edstrom. I live on the south border of the proposed lumberyard. We bought the house in 1980 when it was a full pledged working lumberyard and I have no- qualms about it being that again. It was no problem whatsoever. As a matter of fact, I think with the place being vacant, it's worst because the windows are broken, people have stolen my hammock and taken it into the empty building. You know, I think a lumberyard would be good. CHAIRMAN GOEHRINGER: Thank you. CLERK TYPIST FARRELL: How does she spell her last name? CHAIRMAN GOEHRINGER: Jane, could you spell your last name for us? MRS. EDSTROM: E D S T R O M. CHAIRMAN GOEHRINGER: Thank you. CHAIRMAN GOEHRINGER: Anybody else like to speak in favor? Yes, Diane could you state your last name for the record. MS. COTUGNO:- C O T U G N O. . CHAIRMAN GOEHRINGER: First name Diane. PT SECY. FARRELL: I have that, thank you. MS. CUTUGNO: I live to the west of the lumberyard. Well I use to anyway. I still have a business there. I leased it out and I really have no problems with it. It was a good neighbor and I'm hoping it'll still be a good neighbor. CHAIRMAN GOEHRINGER: Do you have any relationship? Does your tenant have any relationship with these people that they can park in front or anything like that? MS. CUTUGNO: No. CHAIRMAN GOEHRINGER: It's just word of mouth. They just do it as a matter of fact I guess, because pretty much when the lumberyard is closed, the restaurant is opened, right? MS. CUTUGNO: A, yes. CHAIRMAN GOEHRINGER: I mean it really, this restaurant really hasn't been opened since this lumberyard has been closed is what the issue is I guess you'd say. MS. CUTUGNO: No, - but I had a business. I had a restaurant there when a - - CHAIRMAN GOEHRINGER: When the lumberyard was opened? Page 3 Hearing Ti' scripts April 22, 1999 - Board of Appeals MS. CUTUGNO: Sure. We've been there since 72. CHAIRMAN GOEHR.INGER: Right,and you never had any problems at all? MS. CUTUGNO: Never had a problem. CHAIRMAN GOEHRINGER: OK. Thank you. Anybody else like to speak in favor? Anybody like to speak against? Yes, Mr. Cuddy. MR. CUDDY: I'm here because I represent Donielle. Cardinale. I was at the last hearing. I was not representing her, I was here for an entirely different purpose but, apparently I got the honor because .I was here to at least appear tonight. She cannot appear, she's just asked that the affidavit that she submitted and the papers she submitted and the comments be accepted by the Board. CHAIRMAN GOEHRINGER: In reality Mr. Cuddy that's exactly why we reopened the hearing so that we of course could place those documents into this file. OK, thank you so much. Anybody else like to speak? Mr. Ham, would you like to wrap it up? MR. HAM: Yes, just a couple of comments. One, I just hope that you'll focus on the fact that we're not asking for a raw piece of land to be, to have a change of use. Please take into consideration the history of this property and the fact that it does have improvements on it. That's number 1 and number 2, to the extent that Ms. Cardinale has an argument. I think at best, you have to say that the situation is ambiguous and as I pointed out in my letter in response, we feel that that should be resolved in favor of the property owner, under New York State Law. CHAIRMAN GOEHRINGER: Thank you. Anybody else like to say anything regarding this application? Seeing no hands I'll make a` motion closing the hearing reserving decision until later. MEMBER TORTORA: Second. CHAIRMAN GOEHRINGER: All in favor? Motion carried. See Minutes for Resolution. JAMES F. KING 220 EAST MILL ROAD J _ 5� MATTITUCK , N . Y. 11952 April 15, 1999 a ZBA Board of Appeals 7�i Southold Town Hallit,! 1999 4 53095 Main Road P.O. Box 1179 I i✓ t Southold,New York 11971 Dear Board Members, REF: SOUFHAMPTON LUMBER I am co-owner of the property adjacent to the former Southampton Lumber Co. on the west side,currently leased to the Heritage Inn Restaurant The purpose of this letter is to support re-opening of this lumberyard. This property has been a local lumber and building tnaterial supply house for many years and there is no valid reason to deny a continuance of this needed business. Mattituck Sanitation has been using the premises for storage on a steady basis with large trucks entering and exiting The woodworking shop has also been in continuous operation. Concerns about a huge increase in traffic are unfounded. The protest against this lumberyard sounds more like the "I've got mine,but you can't have yours" syndrome. In my opinion,it would be a breath of fresh air to see this property cleaned up and active again in its traditional use. The former Reeve Lumber and Southampton Lumber Company were good neighbors and an asset to our community. I am sure the new owners will endeavor to carry on that tradition. Sincerely, )J�King � ra��' I �u JAMES F. KING I� Gj �� f�IJ 220 EAST MILL ROAD _ S MATTITUCK , N . Y. 11952 A ril 15, 1999 ZBA Board of Appeals Southold Town Hall i't` ` APR i 53095 Main Road P.O. Box 1179 j 11 Southold,New York 11971 Dear Board Members, REF: SOUTHAMPTON LUMBER I am co-owner of the property adjacent to the former Southampton Lumber Co. on the west side,currently leased to the Heritage Inn Restaurant. The purpose of this letter is to support re-opening of this lumberyard. This property has been a local lumber and building Material supply house for many years and there is no valid reason to deny a continuance of this needed business. Mattituck Sanitation has been using the premises for storage on a steady basis with large trucks entering and exiting The woodworking shop has also been in continuous operation. Concerns about a huge increase in traffic are unfounded. The protest against this lumberyard sounds more like the "I've got mine,but you can't have yours" syndrome. In my opinion,it would be a breath of fresh air to see this property cleaned up and active again in its traditional use. The former Reeve Lumber and Southampton Lumber Company were good neighbors and an asset to our community. I am sure the new owners will endeavor to carry on that tradition. Sincerely, J King t c G 'AP E�' �S F9L � � � � MATTHEWS & HAM APR a 1999 (/ ATTORNEYS AND COUNSELORS AT LAW 45 HAMPTON ROAD SOUTHAMPTON, NEW YORK 11968 PHIMP B. MATTHEWS' .-- (1912.1992) 516-288-2400 >�- STEPHEN L. HAM, III FAGSIMILE 516-287-1076 BARHAHA T. HAM e-mail:Matthamesq@aol.com April 8, 1999 BY FACSIMILE TO 765-9064 Zoning Board of Appeals Town of Southold P. 0. Box 1179 Southold, NY 11971 Re: Application of Southampton Lumber Corporation Dear Board Members: I am writing to oppose the request by Donielle Cardinale, by letter dated March 29,_.1999;;.toire-open.the:.hearing of the referenced application,.... ;.Ms.!,Cardinale.had.cmple opportunity at the public hearing:on-.March 25 to address all relevant issues-,concerning the application: No-one restricted,her,time at the podium. No one denied her the opportunity-to make a written submission at.or prior to the hearing. Indeed, based on the arguments she presented at -the hearing and on the affidavit she is attempting to have entered into the record, it appears that Ms. Cardinale either has legal training herself or is being advised by a lawyer. There can be no doubt that Ms. Cardinale has already had a full and fair opportunity to present her case. In the absence of a more compelling reason or other extenuating circumstances, the hearing should remain closed. If Ms. Cardinale's affidavit is allowed, then I would like you to consider the following. As to the legal issues, uncontroverted evidence was presented at the hearing (and prior to the hearing to the Building Department) that the subject premises have continued to be used,after 1993 and up to the present time in.accordance with the 1983 Certificate of..Occupancy., That the activity,was minimal is irrelevant under the applicable cases that deal*th.the.issue,of abandonment under.ordinances similar to Section 100- 241.G of the Zoning_­C.,ode,,!,,Looking at this matter;in-, 8.light most favorable to Ms: Cardinale's position, as even her affidavit reveals at paragraphs (3) - (6), there is at best considerable,ambiggity.as-to,the.,issues (like,the;number and.,.nonconformity of the uses) f f ` Zoning Board of Appeals Page 2 April 8, 1999 that she deems important. As 1 stated in my Memorandum at page 6, where there is ambiguity in interpreting local zoning ordinances, that ambiguity must be resolved in favor the property owner. Allen v. Adami, 39 N.Y. 2d (1976). As to the factual issues, both Mr. Stype's letter and the history of the attempts to sell the property suggest that, due to the improvements that are already on_the property, the only feasible uses to which, the property can be put (or, in this case, for which a company in liquidation can realize'an appropriate return) are large yard uses that are not permitted in the HB Zone. Ms. Cardinale lightly dismisses the real financial hardship that would be suffered if Southampton Lumber accepted a bid of$325,000 (which, incidentally, would be'subject to-a brokerage commission of up to 1.0%), stating that the applicant was simply seeking a "greater profit". If anything, the applicant is seeking to reduce a loss from the Stype appraised value of over $500,000 and the putative value (based on the assessed value) of$655,000 on which it has been paying taxes for the last five and one- half years even though it has been out of the building materials business during that period. (See footnote at page 9 of Memorandum.) The roughly$125,000 -$130,000 difference in net proceeds from a brokered sale at $325,000 and a non-brokered sale at $430,000 is significant to Southampton Lumber's many shareholders, if not to Ms. Cardinale. Failure of the Speonk Lumber transaction and the pressure to sell to eliminate carrying costs (current taxes amount to $12,870 annually at a time when no revenues are being generated) may very well impair Southampton Lumber's bargaining position with other purchasers, but even if a sale could be consummated at the $325,000 figure, the shareholders will still have suffered a further material erosion in their investment. Based on,the foregoing, I respectfully request that you do not re-open the hearing and either determine that the pre-existing use was not discontinued or grant a variance reinstituting that use in accordance with Section 100-241.G. of the Code. Sincerely, C Stephen L. Ham, III cc: Ms. Donielle Cardinale APPEALS BOARD MEMBERS Southold'Town Mall Gerard P. Goehringer, Chairman �� ���a 53095 Main Road James Dinizio,Jr. � P.O. Box 1179 ]Lydia A.Tortora � � Southold,New York 11971 Lora S. Collins ®�� ZBA Fax(516) 765-9064 George Horning ®� �� Telephone(516)765-1809 BOA RID (DIF APPEALS ']GOWN OF SOUTHO]LD SEQRA UNLISTED ACTION DECLARATION April 8, 1999 Appeal No. 4668 Project Name: Southampton Lumber Corp . County Tax Map No. 1000- 114-11-2 4 . 3 Location of Project: 13650 Main Road , Mattituck , NY Relief Requested/Jurisdiction Before This Board in this Project: Permission to reinstate use as a lumberyard and related activities This Notice is issued pursuant to Part 617 of the implementing regulations pertaining to Article 8 of the N.Y.S. Environmental Quality Review Act of the Environmental Conservation Law and Local Law #44-4 of the Town of Southold. An Environmental Assessment (Short) Form has been submitted with the subject application indicating that no significant adverse environmental effects are likely to occur Should the- Project be implemented as planned, and: { } this Board wishes to assume Lead Agency status and urges coordinated written comments by your agency to be submitted with the next 20 days. { X} this Board has taken jurisdiction as Lead Agency, has deemed this Board of Appeals application to be an Unlisted SEQRA Action, and has declared a Negative Declaration for the following reasons: a. An Environmental Assessment has been submitted and evaluated, and/or b. An inspection of the property has been made, or c. Sufficient information has been furnished in the record to evaluate any possible adverse affect of this project as filed, and/or d. This application does not directly relate to new construction or on-site improvements. { } this Board refers lead agency status to your agency since the Board of Appeals does not feel its scope of jurisdiction is as broad as the Planning Board concerning site changes and elements under the site plan reviews. The area of jurisdiction by the Board of Appeals is not directly related to site improvements or new buildings. (However, if you do not wish to assume lead agency status within 15 days of this letter, we will assume you have waived same, and we will be required to proceed as Lead Agency. ) For further information, please contact the Office of the Board of Appeals, Town Hall, Main Road, Southold, NY 11971 at (516) 765-1809. 11 i Dli AAK D GOTT�JSELORS AT LAw ATTOUNE,a A- 45 HAWq" RW I APR - 81999 NENq yk)RF n468 Ij P4 FAC-'41MILE won HI j.,11ail N42nan1'-SqC'1z'01 Ora April 8, 1999 PY �- A3'S3,A!LE TO 7665-9064 7,ontng Board of Appeals Fown of Southold 0 Boy. 1179 c s )uoiold, NY 11971 R-e Dear Board Members, i awi vj�rilint ivo -.opwrxnste "na requ-Inl by D116 C-,-,rdin.tiers, t)y 'lotter dated ^Sd applic-ation! "Aa.Cin 2 , 1 24PS to rwapen We heanng 01 U 8ji-tpie a,-)pp()=Ry EA the pi-blic hir::,ainn��g or, M*rch 25 to ad v ;grog th1 o hrim2 afh*Wevan haues can.cern e ne ie te rilzer; a,( h'tRr unha, ' - ­ I - " -i;nka C-1 OFJP�X L�F it-q, -'k rc No anti denia 1 heanng. woeac-" d a;) thre -.'vxgurnent,-m-, she presented at tr.* r`!,e--,'-tWir`j 0 I-A th VMS shn is allamPgng S-D ih,:-A fV,s C-�irdlnale- aid No has lan T!-ie;,r*:, ce-an be no dout-t ,2-� 1-:nmnin'g lher-seif lis being adjised by --�" �av Not P, Cardinala has ak!6�ady fuill and far appolunity to, pr�-,SCN-;t h-ef' C--M , In th - rtk; cjr�;,, s, tho hearing of a rl"'Cire '�zoroqpeflkrig cxL othe� _.p"tj, j should reman closed. - : 21w her I wuld 1,1k, o -11, -1 10eat ; o0 tff S - WcWng. As to Une IvL�gal 'issues, ur", int'.2--ave!tees ovidq�'f-'c -w� 3 rprez-f'snted :@'t the !'10adng (a;�d to lie heahng io trince Suildviq Depailtment'j" ldha." subject p�e;TnMeS tl&Ve conUnued to ban used aRer jS93 and up jo fhc-� in accordai)ce- '-Wit'n tMra 19e3 C That the was rniiinit-ynanl is jr..-if-irrient under ardinainicea tal Sectiokn 100- case--g that 64 vvit-h Ah'i'� Asue of abanc 241 G c;f the Z-ar-oing; Ccnde- Licxol- in�gj at this rmatte�r itni a lfgh4, rrlos� to, M'�, �nvit at (63), there is at best d,inak&s poslu-n, as even liar W'd nroncOrtf0i'mitV Of thf- usr-,S) Zoning Board of Appeals Page 2 April 8, 1999 that she dde-erns importan? As I se;waia%-11 in my Mem. crandum at pac,-e 6, whore 'there is ambiguity in in"'erprefling local zonkig WinamcAs, �Ih ai arnibiquity must be �e�:,olverj In favor Me rVaperty Otmer. v. Adiarni, 39 -N Y 2d (1976). As to Vhi�fectuai issues, hcdh A& SjpWs lefter and the history of the aft�"n%pts, p eg' ':�S tIdu t e ha- ,i in r trda -14" eir(nnin erc xop to f yu - eo lc& taz iay the ordly fe2s-ible us-os to tie p"operty can be puft (or, in V.-itts caset, fo which a r>-Dropar;y in liquidatton can, realiLe an appropd2ta rekynj Eire larr e y�I�rd' u-seers that aa flai pe=tad ki the Vis. QhAh' disrAsses the rea; llirianciLil hi-ardship that ' a , '2, ' w -icidc niould bi� --"Ilre'red if Soi.Aharnpkwi Lumber D=pWa hid of Z3 5,COO i, -�hirh, 4 -ritnl!y, v-fouldl be sutt�ect to a brolt,:,�.rage; comnisdon of up to 1 Nlolj, --ating that Lsipplicant -qvas- s=p!y seilking a. "gir aiar pro t". if an.-ylhing, ';he appEcaart is seaking g -a redoci-�% a loss Rom the Slype appraised va!ue of over $500,000D, And ih8 pi-ita-tive. valuie (ba,ied on the assessed valu-e;) of$651000 or, whiQh 4hPs lt,-een payNig taxes for the last five and ane- halt, -�4;ars even though ;q 'has tbeen oul of the buildi!-ig mrjten,e3k buskoats-s eduring that periodl (^Se.e flootnote at page 9 Memoram On,) T I he rioughly$125 "DO- $13ROOO - ifference in n prcceeds fron'; a brokered sale at $3125,0'100 e;md P- non-broketrad -sale $430,000 is significar'A to .13outhan-5ptor Lturnib-air's- many sharahcAders, if not. to 'Ms Cardinale FailUre of flit_; Speonlk Luaiber 'he pr arrying costs (Gurrent taxes, arnount to Varis��'Ction -Ind I -essure to sell ta? e!irninate c- $2870 annualiy at a tirne when no revenues are being gen.,Srated) m;--iy very well impair SCUtharilp-t0r. Wrnbw's lb-argaining pro-s4ion with ocher purchasers, but even if a sale could at th6 $325,000 figure, the sharo-,Wders will still have sufferad a further n-,ate;-ial erosion in their investmerit. Oni-jied on the foregoing, ! respeOully request that yciu do no'k, re-open the hearing and either determine that the pre-existing use wna riot dis,.-ontinued or grant a variance reinstituting that else in acuNAznce with Section 100-241.G of the ode Sincerely, 47t441- 14� Stephen L. Ham, III cc-- Ms. Donielle Cardinale 701-k- P.02 Page 3 = Minutes April 8; 1999'Special Meetinc'_ Southold Town Board of Appeals Cabins/Giannaris project to`expand existing buildings (await additional documentation, setbacks, etc); Lettieri and Gazza project (incomplete- await add itional'documentation); Lustgarten-Tavano project (the applicant postponed pending possible new setback information and new design); Empire Gas Project (await additional agency reviews and possible new setbacks). No change in status as of 4/8/99. IV. CODE COMMITTEE. (Last meeting was April 5; 1999.) I-A: Appl. No. 4668 - Southampton Lumber'Corp. AppL' No.4668 - Board Members discussed the letters from Donielle Cardinale requesting that Board reopen hearing record in the Matter of Appl. No. 4668 - Southampton Lumber property at Main Road, Mattituck. HB Zone. - The Board Members also confirmed reading Stephen Ham, EsgVs letter in opposition to Ms. Cardinale's request. Board Member(s) asked the Board Secretary if there was time to advertise for April 22, 1999, and it was agreed there is sufficient time. . .RESOLUTION: ' Motion was made by Member Dinizio, seconded by Member Collins, and duly carried, to REOPEN the hearing in the Matter of Southampton Lumber Corp., Appl. No. 4668, with a date of April 22, 1999. Vote of the Board: AYES: Members Goehringer, Dinizio, Tortora, Collins. (Member Horning of Fishers Island was absent-excused.) This Resolution was duly adopted (4-0). There being no other business properly coming before the Board at this time, the Chairman declared the Meeting adjourned. The Meeting was adjourned at approximately 7:20 p.m. Respectfully submitted, i da Zwalski Confidential ZBA Secretary Attach ase D (3 /,�/7 4-Approved for Filing 5/ /99 Gerard P. Goehringer, Chair 1�� FILE rr y� t _ ITT r+. S i.-G_ y r 2 , APPEALS BOARD MEMBERS O�O cola FFO��C� Southold Town Hall Gerard P. Goehringer, Chairman �� Gym 53095 Main Road James Dinizio,Jr. y P.O.Box 1179 Lydia A. Tortora 0 Southold,New York 11971 Lora S. Collins y ��� ZBA Fax(516)765-9064 George Homing Telephone�� Telephone(516)765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SEQRA UNLISTED ACTION DECLARATION April 8, 1999 Appeal No. 4668 Project Name: Southampton Lumber Corp . County Tax Map No. 1000- 114-11-2 4 . 3 Location of Project: 13650 Main Road , Mattituck , NY Relief Requested/Jurisdiction Before This Board in this Project: Permission to reinstate use as a lumberyard and related activities This Notice is issued pursuant to Part '617 of the implementing regulations pertaining to Article 8 of the N.Y.S. Environmental Quality Review Act of the Environmental Conservation Law and Local Law #44-4 of the Town of Southold. An Environmental Assessment (Short) Form has been submitted with the subject application indicating that no significant adverse environmental effects are likely to occur should the Project be implemented as planned, and: { } this Board wishes to assume Lead Agency status and urges coordinated written comments by your agency to be submitted with the next 20 days. { X) this Board has taken jurisdiction as Lead Agency, has deemed this Board of Appeals application to be an Unlisted SEQRA Action, and has declared a Negative Declaration for the following reasons: a. An Environmental Assessment has been submitted and evaluated, and/or b. An inspection of the property has been made, or c. Sufficient information has been furnished in the record to evaluate any possible adverse affect of this project as filed, and/or d. This application does not directly relate to new construction or on-site improvements. { } this Board refers lead agency status to your agency since the Board of Appeals does not feel its scope of jurisdiction is as broad as the Planning Board concerning site changes and elements under the site plan reviews. The area of jurisdiction by the Board of Appeals is not directly related to site improvements or new buildings. (However, if you do not wish to assume lead agency status within 15 days of this letter, we will assume you have waived same, and we will be required to proceed as Lead Agency.) For further information, please contact the Office of the Board of Appeals, Town Hall, Main Road, Southold, NY 11971 at (516) 765-1809. DONIELLE CARDINALE 1 `� Main Road Mattituck, New York 11952 R 3 � � Q March 29, 1999 Zoning Board of Appeals Town of Southold Main Road Southold, NY 11971 Re: Application of Southampton Lumber Corporation Dear Board Members: Enclosed is an affidavit which I ask the Zoning Board to consider in connection with the above matter. I did not realize there would be no opportunity to respond to the assertions made by the applicant and his representative at the hearing. Since the applicant relied upon a memorandum, I ask the Board to consider my response to the position advanced by the applicant and therefore request that you re-open the hearing to permit the accompanying affidavit to be introduced as part of the file. Very truly yours, J Donielle Cardinale f `t D v ZONING BOARD OF APPEALS �y,q R 3 11999 TOWN OF SOUTHOLD °�------------------------------------x IN THE MATTER OF THE APPLICATION OF AFFIDAVIT SOUTHAMPTON LUMBER CORPORATION ------------------------------------x STATE OF NEW YORK) ) ss. . COUNTY OF SUFFOLK) DONIELLE CARDINALE, being duly sworn, deposes and says: (1) I appeared at the hearing on March, 25, 1999, and spoke in opposition to the request for reintroduction of the lumber yard at Main Road in Mattituck. I was surprised that the argument advanced on behalf of the applicant was not one of fact, but one of law. However, I do not believe upon further review of the documents, not all of which were available prior to the hearing, that there is a factual basis for the relief sought. I respectfully request that the hearing be re-opened for the purpose of permitting me to introduce this affidavit and to have its contents considered by the Zoning Board of Appeals. (2) The applicant claimed that a use being conducted at the site permitted continuation of an admittedly non-conforming use - a lumberyard. The "Notice of Disapproval" states " . . .application to re-institute Lumber Yard use in HB Zone. " The thrust of the argument is that the woodworking use, supported by an affidavit only, even conducted on a minimal basis, allows the re-introduction of a non-conforming lumber yard use in the Hamlet Business District. (3) Applicant relies on the CO which in turn, I submit, requires an interpretation by this Board. The CO states "lumber and woodworking business" . If that is one business, it is certainly not a lumber yard. If it refers to two businesses, then, At this site, these were two principal uses. In either event a woodworking business appears to be a permitted use in the Hamlet Business District. A lumber yard is not. The continuation of the woodworking business is not a problem - continuation of the non- conforming lumber yard is. (4) This applicant is arguing that the continuation of a conforming use permits continuation of a non-conforming use. I am advised there is no case standing for that proposition, and it seems unlikely that there will be. (5.) If there is one use, a combined lumber and woodworking business, then it is a permitted use with significant limitations on the lumber use. If there are two uses, as the applicant is arguing, then one is permitted, the other isn't. Applicant has submitted an affidavit that the woodworking use continued, and as to the lumber yard use at paragraph 2 on page 2 the application (appeal) states® " . . .the applicant went out of business in 1993 so it could not continue the use even though it did not intend to abandon- it. " (6) The lumber yard use was admittedly abandoned; the corporation in fact went out of business. It cannot be re-instated by attaching it to a permitted use, or, even, assuming woodworking is non-conforming, by attaching it to a separate use. There is no evidence whatsoever that the lumber yard use was continued. Here o , the applicant simply seeks a greater profit ($425, 000) for lumber yard use, as opposed to $325, 000 for non-lumber yard use. This does not and cannot justify re-introducing the non-conforming lumber yard use (7) I respectfully submit there is no basis in the evidence before the Board to permit re-instatement of a lumber yard in the HB Zone. WHEREFORE, the application pending before this Board to reverse the determination of the building inspector should be denied® aiztia-_ (Donielle Cardinale) Sworn to before me this ® day of March, 1999 o MARIE A.MOODS Notary Public,State of New York No.01 W05031860 #tuaffled irr Suffolk County moo itfs.��+� :9aA 20 March 25, 1999 MAR .� 1999 Southold Town 'KBA Main Road Southold, NY 11971 Re: Change of use variance Southampton Lumber Main Road Mattituck, NY 11952 To Whom It May Concern: I feel that the request for a change of use variance for the Southampton Lumber property, Main Road, Mattituck, may be inappropriate because: No environmental impact statement has been filed to address. 1)` Increased traffic. ,2) Outside storage of material 3) Noise generated by equipment outside , 4) Building material sales and storage not allowed in a Hamlet business zone. I feel a change of zone application.:.would be more appropriate to accomplish the changes requested. Sincerely, l Defriest Funeral Homes 4 4 Page 4—Minutes Regular Meeting of Match 25,1999 ` - Southold Town Board of Appeals by Member Tortora, and duly carried,to close the hearing. Vote of the Board: AYES: All (4- 0). 10:02 p.m. Appl. No. 4668 — SOUTHAMPTON LUMBER CORP. This is a request for a Variance under Article XXIV, Section 100-241-G, for permission to reinstate (re-establish) use as a lumberyard and related activities, which use is nonconforming in this Hamlet-Business Zone District. Location of Property: 13650 Main Road, Mattituck, NY; County Parcel No. 1000-114-11-24.3. Stephen L. Ham III, Attorney spoke for the application. Other speakers, who were sworn in by the Chairman, were: H. Merrill Becker, President of Southampton Lumber Corp and Dennis G. Smith, Contract Vendee. Opposing the application was Donielle_ Cardinale, resident of property at the corner of Main Road and Wickham Avenue. After receiving testimony, motion was made by Chairman Goehringer, seconded by Member ' Collins, and duly carried, to close the hearing. Vote of the Board: AYES: All (4-0). End of Hearings. DELIBERATIONS/DECISIONS: Appl. No. 4671- HENRY L. FERGUSON MUSEUM. The Board deliberated and adopted a favorable determination (copy attached at the end of this set of Minutes). DATE FOR A SPECIAL MEETING: The Chairman set April 7, 1999 at 6:30 p.m. at the date of the next Special Meeting, for carryovers from tonight's agency items and new matters properly coming before the Board at that time. III. RESOLUTIONS: a) On motion by Chairman Goehringer, seconded by Member Collins, it was RESOLVED,to approve the following Minutes: March 5, 1999 Special Meeting February 23, 1999 Regular Meeting January 21, 1999 Regular Meeting January 27 Special Meeting. Vote of the Board: Ayes: All (4-0). b) On motion by Chairman Goehringer, seconded by Member Collins, it was RESOLVED, to authorize advertisement of the following matters for public hearings to be held Thurs., April 22, 1999: 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 on 13 _ SNPT �� MATTHEWS & Harz ATTORNEYS' AND COUNSELORS AT LAW 45 HAMPTON ROAD SOUTHAMPTON, NEW YORK 11968 PHIMP B. MATTHEWS (1912-1992) 516-283-2400 STEPHEN L. HAM, III FACSIMILE 516-287-1076 e-mail:Matthamesq@aol.com BARBARA T. HAM March 26, 1999 Town of Southold Zoning Board of Appeals ` 01999 P.O. Box 1179 L Southold, NY 11971 Re: Application No. 4668 - Southampton Lumber Corporation Dear Board Members: In accordance with your request made at last nights public hearing, I have enclosed copies of the four cases relating to the issue of abandonment of a nonconforming use that I cited in my Memorandum. Sincerely, Stephen L. Ham, III Enclosures 01 •atr;t��1• t i i.�F a k 1-v{ a 2d A: MEMORANDA, Third Dept., November, 1970 8571Y o< r ;P i SERIES r, ,;� ,. ..�.� /TIILBERG His Mother=;arid`+ 414estified that the patients placed their clothes on the top of the racks and 70Rg; Appellant.. '(Cl Eat, 'Welimbed up on the racks to retrieve them, and that he told Merino and other Of the- claimant, entered I AAttendants about this; and, also, that Merino had observed a child on the >f Claims. Shortly..after top of the racks playing hide-and-seek. Merino testified that he had requested 2� P ,,, ;;�K.,'assistance from his superiors daily, but none was forthcoming. The facts a patient at the Bin"`` t' .:. support the conclusion that the risk of injury was reasonably to be-perceived. +A ing dressed, when anotber'L,, ` he attem tad to et"':bis" q=From this record it is obvious that the presence of one attendant in the ward J P g °}' " '+during the evening hours was not adequate under the circumstances. i 30 other boys, to Waf&' r 9 In the Matter of the Claim of EDWARD FREEMAN Respondent, v. ach 60 feet b y 60 w'i:': , P , } z ,: CIIBTOM BIIJP BODY,INO., et al.,Appellants. �VORgMEN 9 COMPENSATION BOARD, i the accident happeneds) » �e only attendant on,du µa,, a r;fRespondent.—Appeal from a decision of the Workmen's Compensation Board ; Er ft;.which determined that claimant was an employee of the appellant-employer, witness the accident whii :r Custom °Bilt Body, Inc., and found that the corporation had sufficient super- al court based its decision ; ]xvision and control over claimant to warrant establishing employer-employee €iled to provide adequate . h-• i} - '.''',. relationship. The board found that under the terms of the agreement, the State is required to.�use ;. ,corporation specified and retained control over the claimant's route, required 4k €tions from injury.. r, that its name be affixed to the door panels of the tractor and did not permit '#}" U. 254 App. Div. „the elaimant•to accept other jobs without first consulting the corporation. €e State could reasonably Decision affirmed, with costs to-the Workmen's Compensation Board. Herlihy, , of New York, 296 N.`, 'p,.J Reynolds, Stale reenblott and Cooke JJ. concur. 1€I' 885:) While the claiman��_ � ' y' Jr.,' ' ' ' BAML REALTY, Ixc., Appellant-Respondent,' v. STATE or NEW YORK, nothing in the record�taytR Respondent-4pellant. (Claim No. 45450.) —Cross appeals from a judg- �r dtive disposition. Conser i went in favor of the State of New York on its counterclaim, entered November lion o required f atieats q P 1970, upon a decision of the Court of Claims making an award to claim- ?' ;onable care is measuredp , r.,.. ." ;' s as the hos Ital offici -•,:'Want, resulting from the appropriation on October 2, 1964 of a portion of -;,. P >claimant's premises in the City of Peekskill. The subject parcel was zoned ,} Jew York, 187 Misc.,•253 ''r w ;;iesidential but for years a building .thereon housed it foundry, a pre-existing There is no evidenceiaF' •nonconformin use. About 1960 the operating corporation moved its manu- hours was not ade uate g P g P }. q k' faeturin to a new location but allegedly, continued some operations at the der all the circumstances'°: g , P . hest and ,best .use was old site. The Court of Claims found that the hi �f inadequate supermioa� r�, g foresee..and`"I residential, but based,its award of $5,050 on the claimed nonconforming corn- c reasonably > ,,mercial use, and rejected the contention that the building could be converted wire constant supervisions; $:'into a home. The State was.awarded $3,950, on its counterclaim, the difference € w :f it is doubtful whether:.kf,Y; r ' between claimant's award and a $9,000 "partial" prepayment. Essential to ��; ate of New York, suped;•+' f�,,,the lower court's finding of residential highest and best use was a determination 'j�.•,'�+� tots, and claim dismissed''*ry* ",= g g � tu.t?., ,,;„,of abandonment of the nonconforming use. Although in the absence of special } ad Sweeney, JJ., concur;2>' p__ ordinance provision, intent to abandon a nonconforming use coupled with ,, following memorandum; , r actual discontinuance of the operation must be found in order to cause the was guilty of negligence2c ,:'loss of the right to maintain a .nonconforming use (City of Binghamton V. activities of the ehildrenK Gartell, 275 App. .Div. 457), under an ordinance such as that in Peekskill '€v €ty of the State, in there' e:;t ,. `providing that the nonconforming use shall not be re-established if discontinued otect its wards against% '.' P g g i's1` for over one year, the nonconforming use which has ceased for the prescribed .State of New York, 296 vr',,, able reeautionreasonable period may not be resumed, irrespective of the absence of intent ,,'00 i ' to abandon (Village of Spencerport v. Webaco Oil Co., 33•A D 2d 634; Matter its requires it to exercism,.,��.: � ' q1, %..of Franmor Realty Corp. v. Le Boeuf, 201 Misc. 220, affd. 279 App. Div. uitably supervised living"' ;. ,-795). A discontinuance connotes a complete cessation (cf. City of Bingham- ,tate to foresee that an ; , �,':, ton v. Gartell, supra, p. 460) so that a minimal nonconforming function, of j+ r truly children were super=4 9�--`itself, would not constitute an abandonment. The decision under review lacks 01,leave them alone to ;get {€.- ''a, statement of the essential facts on which the judgment is founded cf. €dition, i.e., the unsecured.h ' , k';, w :;Conklin v. State of New York, 22 A D 2d 481). The before value and the 'y om: Of course, constant;° ',total damage figures found by the court are noted to be the same as those (e( €nable to require betteri<,° 111.supplied by the State's appraiser for a commercial use, if permitted, but the -' it. The proof supports= `s,court, having found the highest and best use to be residential, could not exceed Merino and Lane. Lanai j• 6-. the valuations furnished for such use, in the absence of an adequate explana- 858 35 APPELLATE DIVISION REPORTS, 2d SERIES - o tion (Angus v. State of New -York, 32 A D 2d 863). An, award fora +? < rt' Respondent.—1 residential highest and best use cannot be based on commercial valuations. '' y , entered Jul 2r 3 Judgment reversed, on the law and the facts, and anew trial ordered, without ?",'`it; entered April i costs. Herlihy, P. J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur. ? of a life insura ' 11 In the Matter of the Claim Of MARY BERGER, Respondent,v. ROCHETTE maintained a el t,. .; &PARmNI CORP. et al.,Appellants, and PHILLIPS AeousTies et al., Respondents. 5, married. Dec( { WORKMEN'S COMPENSATION BOARD, Respondent.—Appeal from a decision of ,{ ' 'lcF , bank account i the Workmen's Compensation Board, filed March 14, 1969, as amended by a :� -a.$10 060 life i� decision filed October 10, 1969, which determined that there was an injurious ,; death. Decede l ex osure of decedent in the employment with the last employer and that said 1. '`` P � ��r: Of the life insv last employer was liable. Decision affirmed, with one bill of costs to respondents that these trans filing briefs. Herlihy, P. J., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., decedent's relia ..Fco, g',N. I! concur. ;,3'1• ; r' ' him. She col 12 In the Matter of the Claim of ALBERT FERRIERA, Respondent, •v. _,,kr, ;.; decedent. The " ALLEGHENY Lumum STEEL CORPORATION Appellant. WORKMEN'S COMPENSA- '_ '� ' PP + three causes of Tim BOARD, Respondent.—Appeal from a decision of the Workmen's Com= '`1. ;, f';r.''..offered no evi pensation Board, filed October 20, 1969. The board found on the evidence respondent, 'in that the stress of doing heavy physical exertion in the presence of extreme xt a, +Rt;''in crust for r( }; heat on August 10, 1966 precipitated chronic heart failure. The board further policy. The . .. Po y j r found that the disability was causally related to the work connected accident ;' '' ; .- fraudulent miss on August 10, 1966. Decision affirmed, with costs to the Workmen's other elements. Compensation Board. Herlihy, P. J., Reynolds, Staley, Jr., ,reenblott and ra_ :`; entitled to reco j' Cooke JJ., concur. `" '`''`' ` it , , • , . 4„;.• supports the co' F 13 • In the Matter of FRANK M. KAMINSKY et al., Doing Business as :r Ai#4 the entire eri= =' WELCOME INN, Petitioners, v. STATE LIQUOR AUTHORITY, Respondent.—Pro= i' to set the date ceeding under 'CPLR article 78 (transferred to this court by order of Special • �• ,. created during l Term, Broome County) to review a determination of the respondent which (utter of Tott sus ended the petitioners' liquor license for violation of section 65 of the iF +' i p p 9 �: Reynolds, Greer Alcoholic Beverage 'Control Law. The record establishes that becausm of a >,_ u 16 MURIf ministerial error the determination of the respondent as set forth in the P ?, SERVICES SOLE 1 "Notice" is incorrect. The issue before the hearing officer in the present ;,. 4 :; Appeal by the case was one of credibility which he determined in favor of the licensee: :;. in the Warren ^"k(t, Furthermore, it appears from an exhibit in the record entitled "Memorandum , judgment to th of Determination" that the respondent limited its consideration of the record to one of "substantial evidence" which of course proper- is not the test:'`,�&=, a - for breach of h P P fry_- ent. The affida, t " Determination annulled,-with costs, and matter remitted for additional findings' �;;� r ,r•.• were insufiieien and clarification of the decision appealed from. Herlihy, P. J., Reynolds;'` i r";' noted that the : Greenblott,-Cooke and Sweeney, JJ., concur. =}_; in the present 3 14 ELsiE ROBINSON, as Administratrix of the Estate of •LAWRENCE H::9�'y3�, -rely upon that ROBINSON Deceased Appellant, v. TowN OF HECTOR Respondent.— eal..,t�. " PP , , P xi Herlihy, P. J.;• by the plaintiff from a judgment of the Supreme Court, entered in Schuyler•l _ '" 17 TRIFO County on November 17, 1969, which dismissed the complaint for failure lants.—Appeal establish facts sufficient to constitute a cause of action at the end of plaintiff's`; April 10 197P case. Prior to dismissing the action the Judge found that there was sufficient;: P ' .,x increase the a( proof to establish-that the 'defendants highway was negligently const e ' ruetd'' r' ri r injury causes I' ' and/or negligently signed at the place where the plaintiffs intestate left f :.:,-,to.,serve a sup highway causing death. Under the circumstances the trial court should not-., ' ':plaintiffs. An' .;l have nonsuited the plaintiff and granted a dismissal of the complaint, bnt`;: y "-, placed on the 9 should have submitted the case to the jury to decide the factual issues::{ ' I s. moving paper. Judgment reversed, on the law and the facts, and case remitted for a new the absence of trial,with costs to abide the event. Herlihy, P. J., Reynolds,Greenblott, Cooke'r� ; K', permitting and Sweeney, JJ., concur. ; r; personal injur 15 DOROTHY PASS, as Administratrix of the Estate of SAMUEL SHERwIN""' xb .Prac., par. 30 Deceased, Appellant, v. BEATRICE B. SPIRT, Also Known as BH,LZE SPIT;A>',.;_' court (Soulier -1!h 1 _2A ZIES TOYS "R" US v SILVA [89 NY2d 4111 411 with Statement of Case r Judge LE- ,6� 'everse in a sepa- M [676 NE2d 862, 654 NYS2d 1001 Judge BELLAcOsA in the Matter of Toys "R".Us, a New York Limited Partner- A- ship, Respondent, vi GAsTON SiLvA, as Chairman of City of New York Board of Standards and Appeals, Appellant, et al.,; Respondent; COLETTE COFFMAN et al.', Intervenors- K, Appellants. Argued November 20,1996;decided December 20,1996 'K SUMMARY APPEAL, by permission of the Appellate Division of the ti Supreme Court in the First Judicial Department, from an or- der of that court, entered July 2, 1996, which affirmed a judg- �4yA' mentof the Supreme Court (David B. Saxe, J.; opn 167 Misc 2d .897 , entered in New York County in a proceeding pursuant to CPLR article 78, granting the petition, annulling a determina- tion of the City of New York Board of Standards and Appeals that revoked the building permit issued by respondent Depart- ment of-Buildings which allowed petitioner to maintain a nonconforming use of the subject premises, and reinstating the building permit. R Toys "R" Us v Silva, 229 AD 308, reversed.g HEADNOTES Municipal Corporations Zoning — Nonconforming use — Stan- say dard for Determining Discontinuation under New York City Zon- ing Resolution 1. Substantial discontinuation of an active, nonconforming activity forfeits p the nonconforming use under New York City Zoning Resolution §52-61,, which prohibits continuation of a nonconforming use if, during a two-year period, "the active operation of substantially all the non-conforming uses T,M is discontinued", and the,good faith of the owner is irrelevant to that determination. Zoning Resolution §52-61 explicitly equates abandonment with something less than discontinuation of the entire nonconforming use by specifically terminating any further nonconforming use when "the active -conforming uses is discontinued" operation of substantially all the non for a continuous two-year period.The carefully chosen words of section 52-61 thus impose a standard of substantial rather than complete cessation. More- over, in New York the inclusion of a lapse period in the zoning provision .v removes the requirement of intent to abandon—discontinuance of noncon- forming activity for the specified period constitutes an abandonment,regard- less of intent. Zoning Resolution§52-61 provides a specific two-year lapse pe- riodthereby rendering the owner's intent irrelevant to abandonment and,. g further, expressly states that "BIntent to resume active operations shall not, W� affect" ihe determination whether a nonconforming use has been discontin- ued. 41,I a Fi 412 TEW YORK REPORTS, 2d SERIES Points of Counsel 4 Municipal Corporations — Zoning — Nonconforming Use — Suffi- NY2d 967; M( ciency of Evidence of Substantial Discontinuation under New York A AD2d 627, 44 City Zoning Resolution- AD2d 81, 70 1 2. A determination of the City of New York Board of Standards and AAp-- 576,• Baml Re a' ipeals(BSA)that revoked the building permit allowing petitioner to m aintain court a nonconforming warehouse use on its premises upon a finding of minimal below in warehouse activity following the complete stoppage of operations for 20 Board of Stai A months,which failed to preserve nonconforming use status under New York rationally detf City Zoning Resolution §52-61, is supported by substantial evidence. The 14M the de minimi BS A review of warehouse logs for the contested period revealed only eight !'the active o' customer accounts,compared to the 1,500 accounts previously maintained by p the building I., the company, and that approximately 19 crates were shipped to the warehouse at that time, which would have occupied only one tenth of 1% of ous two-year Church v Wai the entire volume of the building-Moreover, the BSA specifically noted the absence of any standard evidence for the critical period typically available to IN, Matter of Cow document a legitimate business operation, such as insurance records, tax "i. ing Bd. of Ap, documents, advertisements, liability coverage, customer records, employee records, certain directory listings, telephone records or sales receipts. The Educ., 34 NY5 BSA thus properly considered objective factors regarding the nature and ing Assn. v Glu degree of nonconforming warehouse use,and its determination that the level 70 NY2d 436- of warehouse operations during the critical period was too insignificant to "A baum v Deut p -61 was supported by reserve nonconforming use status under. section 52 substantial evidence. 61 NY2d 823.)i , BachiPteri s c TOTAL CLIENT-SERVICE LIBRARY @ REFERENCES .By the Publisher's Editorial Staff 2- appellants. 1 9 man Marc s o intent behind Am JuR 2d, Zoning and Planning, §§682-684, 688, 691. q� lution, failed t(,, NY JuR2d, Buildings, Zoning, and Land Controls, §§007- the statute, al 310. ment. (Euclid NY REAL PROP Smv, §§48:71-48:78. City of Buffalc ANNOTATION REFERENCE NY2d 396; Ras See ALR Index under Nonconforming Uses; Zoning. Off Shore Rest. cuse Aggregate dios v Berle, 43 POINTS OF COUNSEL Mt of Port Wash. M ,\ Paul A. Crotty, Corporation Counsel of New York City (Janet W Stds. &Appeal., V- L. Zaleon, Barry P. Schwartz and Robin Binder of counsel), for finder for Zonil appellant. I. The court below improperly rendered unenforce- ;m > that. pursuant able the standard set forth in section 52-61 of the New York nonconforming City Zoning Resolution, which provides that a nonconforming suming de min' use, cannot be reestablished if "the active operation of tive operation g, 4 1,i the building ha(' substantially all the use has been discontinued' for two y continuous years. (Village of Waterford v O'Brien, 39 AD2d 975;Matter of 4ft Village of Valatie v Smith, 83 NY2d 396; Matter of Pel- f N4 v Board of Edu ham Esplanade v Board of Trustees, 77 NY2d 66; Matter of Off NY2d 269; Matt Shore Rest. Corp. v Linden, 30 NY2d 160; Matter of Harbison v Vr ter of Consolido' City of Buffalo, 4 NY2d 553; Matter of Marzella v Munroe, 69 man Rights, 77 I. C r N. TOYS "R" US v SILVA [89 NY2d 411] 413 Points of Counsel IV. -wing Use Suffl- NY2d 967; Matter of Sun Oil Co. v Board of Zoning Appeals, 57 an under New York AD2d 627, 44 NY2d 995; Town of Islip v P.B.S. Marina, 133 X Standards and • AD2d 81, 70 NY2d 611; Matter of Daggett v Putnam, 40 AD2d 10 , - �4,to LV etitioner maintain 576,• Baml Realty v State of New York, 35 AD2d 857.) R. The a finding of minimal ell court below improperly substituted its judgment for that of the z)f operations for*20 Board of Standards and Appeals (BSA), where the BSA had tus under New York !1_ rationally determined, based on the entire record, that despite intial evidence. The the de minimis storage of goods from April 1991 to July 1991, I revealed only eight "the active operation of substantially all" the warehouse use of 'oust y maintained by ere shipped to they, f3 the building had been discontinued for the requisite continu- one tenth of 1% of ous two-year period. (People ex rel. Fordham Manor Refm. Pecifically noted the Church v Walsh, 244 NY 280; Ain v Glazer, 216 AD2d 428; Ypically available to Matter of Cowan v Kern, 41 NY2d 591; Matter of Fiore v Zon- urance record s, tax V� Kl r records, employee ing Bd. of Appeals, 21 NY2d 393; Matter of Pell v Board Of sales receipts. The Educ., 34 NY2d 222; Matter of Sullivan County Harness Rac- ing the nature and ing Assn. v Glasser, 30 NY2d 269; Matter of Berenhaus v Ward, .cation that the level 70 NY2d 436; Matter of Collins v Codd, 38 NY2d 269; Appel- too insignificant to Ile, �i was supported b baum v Deutsch, 66 NY2d 975; Matter of Frishman v Schmidt, y 61 NY2d 823.) Bachner, Tally, Polevoy & Misher LLP, New York City (7Vor- IRENCES man Marcus of counsel), and Jack L. Lester for intervenors- appellants. I. The lower courts misinterpreted the legislative -61 of the New York City Zoning Reso- 688, 691. intent behind section 52 lution, failed to give full meaning and effect to all the words of rols, H 307- "ZI, the statute, and judicially legislated an additional require- ment. (Euclid v Ambler Co., 272 US 365; Matter of Harbison v City of Buffalo, 4 NY2d 553; Village of Valatie v Smith, 83 NY2d 396; Ilasi v City of Long Beach, 38 NY2d 383; Matter of i.Z` Zoning. Off Shore Rest. Corp. v Linden, 30 Ny2d 160; cuse Aggregate Corp. v Weise 51 Matter of Syra- NY2d 278; Modjeska Sign Stu-, Al dios v Berle, 43 NY2d 468; Thomson Indus. v Incorporated Vil. , ) of Port Wash. N., 27 NY2d 537; Matter of Alpert v Board of ork City (Janet Stds. .&Appeals, 89 AD2d 960.) 11. The BSA, as the proper fact X of counsel), for 21," finder for Zoning Resolution questions, rationally concludedy. ;red unenforce- that. pursuant to the plain meaning of section 52-61, the the New York 1ri` nonconforming use of the property had terminated, even as- nonconforming suming de minimis use by Morgan Manhattan, when the ac- x ice' operation, of tive operation of substantially all the nonconforming uses of inued for two ;',- the building had discontinued. (Appelbaum v Deutsch, 66 NY2d 'rien, 39 AD2d rj 975;Matter of Cowan v Kern, 41 NY2d 591; Matter of Wiggins Matter of Pel- 4p . v.Board of Educ., 60 NY2d 385; Matter of Collins v Codd, 38 A ; i; Matter of Off NY2d 269; Matter of Pell v Board of Educ., 34 NY2d 222; Mat- V r of Harbison v "4'�4L ter of Consolidated Edison Co. v New York State Div. of Hu- i v Munroe 69 ;,0 man Rights, 77 NY2d 411; Board v Hearst Publs., 322 US 111; 414 9EW YORK REPORTS, 2d SERIES 'v, c :• TC tit Opinion per Chief Judge Kam Arlington H ts. v Metropolitan Hous. Corp., 429 US 252• Mat- ''` ,Resolution? Con ti ter of Parkview Assocs. v City of New. York, 71 NY2d 274.) ,� st. :we conclude t discontinuation Fischbein Badillo Wagner Harding, New York City (Richard the noconformi S. Fischbein Howard B. Hornstein Donald N. David ,and 4Y�,'. ' '. >;.. �t= irrelevant to the Andrew B. Messite of counsel), for Toys "R" Us, respondent. •[2] Here the The BSA's determination was properly set aside as arbitrary ;f ' `ft j ;,; facts found mini x and contrary to the law. (Matter of Carroll v Ingram, 59 AD2d r° "=.a; stoppage of opei E,r 85 43 NY2d 642 44 NY2d 948; Matter of Fox v City of Buffalo nonconforming lo ?, 4,fi ff :j;r , r` Zoning Bd. of Appeals, 60 AD2d 991; Matter of Exxon Corp.1v r .s allowing petitic 170 Board o &Appeals, 128 AD2d 289, 70 NY2d 614• Matter 1, f Stds. PP premises. Becai of Allen v Adami, 39 NY2d 275; Matter of Field Delivery Serv. " <; substantial evid h [Roberts], 66 NY2d 516;R-C Motor Lines v United States, 350 FFA° Division deeisioi Supp 1169, 411 US 941; Matter of Marzella v Munroe, 69 NY2d ; `'i rY' ? 967; Baml Realty v State of New York, 35 AD2d 857; Town of Islip v P.B.S. Marina, 133 AD2d 81, 70 NY2d 611; Matter of At issue here the northeast Daggett v Putnam, 40 AD2d 576.) Y, cc 4 4 Edward N. Costikyan, New York City, for Municipal Art So- Manhattan. Bui a retail zoning ciety of New York, Inc., amicus curiae. The BSA properly of occupancy a? ?F}; interpreted section 52-61 of the New York City Zoning Resolu- . r, F storage and war „. .. tion, following both the plain language of and the public policy ;,. ;,. age and Warehc behind the zoning provision. (Town of Islip v P.B.S. Marina, { : is �y .;, it continued to i ' 133 AD2d 81; Matter o Marzella v Munroe, 69 NY2d 967; Mat- The 1961 Ne- e My,*; ter of Harbison v City of Buffalo, 4 NY2d 553.) F' f r neighborhood f 2r: Gallent & Aumand, Jackson Heights (Martin Gallent of i ',' districts overlai( counsel), for Metro Chapter of the American Planning.Associa- P g enue (rather th tion, amicus curiae. The decision of the BSA concerning the , �; �Gc the 'building on H; permit of the Department of Buildings and interpreting sec- mercial (Cl-9) ;.. tion 52-61 of the Zoning Resolution should be upheld. (Matter ;. .': Street, however hi- " o Monument Garage Corp. v Levy, 266 NY 539• Westchester f g P y warehouse use i County S. P. C. A. v Mengel, 292 NY 121; Matter of Off Shore ? '`�L4 commercially or Rest. Corp. v Linden, 30 NY2d 160; Matter of Harbison v City olution art II; of Buffalo, 4 NY2d 553.) °; warehouse coulc ;. x_ a.nonconformin; °rT OPINION OF THE COURT ;dt. tstt Morgan contii Chief Judge KAYE. ;' ;fir.,;., August 1989, wl [11 The,New York City zoning laws prohibit continuation of . # estate developer ' a nonconforming use if, during a two-year period, "the active : ," " '. and for the nex' operation of substantially all the non-conforming uses * * * is ;41�: ` i=: The sale fell thi discontinued" (New York City Zoning Resolution § 52-61). This '�' ,_,.: limited amount # case presents a novel question of statutory construction: what 80th Street faci] a g is the appropriate legal standard to determine whether a tj.• ;};. an effort.to resu nonconforming use has been discontinued under the Zoning 4 ; :r' maintain the va "'M TOYS "R" US v SILVA [89 NY2d 4111 415 Opinion per Chief Judge KAYE 9 US 252; Mat- Resolution? Contrary to the trial court and Appellate Division, JYM 274.) we conclude that substantial—rather than complete— Aiscontinuation of the active, nonconforming activity forfeits I% X i City (Richard I�&,, the nonconforming use, and that the good faith of the owner is it N. David and irrelevant to that determination. Ts, respondent. , le as arbitrary qM :0�, [21 Here, the Board of Standards and Appeals (BSA) on the ram 59 AD2d facts found minimal warehouse activity following the complete 4E g , � .'4' stoppage of operations for 20 m? hs' w "hic h failed to preserve City of Buffalo nonconforming use status, and i re ked the building permit Exxon Corp. v allowing petitioner to maintain a no conforming use on the 0" B, 2d 614; Matter .,; ` Delivery Serv. n, tion was supported by Premises. Because the BSA deternifi�i substantial evidence, we reverse the trial court and Appellate d States, 350 F q( Division decisions reinstating the building permit. mroe, 69 NY2d 1857; Town of i�W 1. Facts un tllvll A1 611; Matter of At issue here is a portion of a 16-story building located at the northeast corner of Third Avenue and East 80th Street in Manhattan. Built in 1926, the entire premises were situated in A nicipal Art So- Nf, BSA properly a retail zoning district and, in compliance with the certificate of occupancy and applicable zoning regulation, served as a mooning Res0 storage and warehouse facility. When Morgan Manhattan Stor- 7 lu- e public policy '.B.S. Marina, age and Warehouse Company purchased the building in 1956, Y2d 967; Mat- it continued to use the structure exclusively as a warehouse. The 1961 New York City Zoning Resolution changed the neighborhood from a retail zoning district to residential in Gallent of districts overlaid with strips of commercial districts on the av- .ining Associa- W7, enue (rather than street) blocks..As a result, that portion of mcerning the the building on Third Avenue presently remains in a com- erpreting sec- mercial (Cl-9) zoning district. The portion fronting on 80th pheld. (Matters. Street, however, is now in a residential (R8B) zone. Because, Westchester warehouse use is no longer permitted as of right in either the r of Off Shore commercially or the residentially zoned areas (see, Zoning Res-- irbison v City -00, 32-25), use of the building as a olution art H; §§ 32 warehouse could continue under the Zoning Resolution only as a nonconforming use (see, Zoning Resolution §§ 12-10, 52-11). Morgan continued to use the building as a warehouse until -nj August 1989, when it contracted to sell the premises to a real intinuation of estate developer. At that time, Morgan emptied the building 4 1, "the active and for the next 20 months ceased all warehouse operations.'4 uses *,is The sale fell through, and in April 1991 Morgan transferred a § 52-61). This limited amount of goods stored in its other warehouses to the ruction: what 80th Street facility and assigned a property manager there, in an effort to resume nonconforming warehouse use and thereby e whether a r the Zoning maintain the value of its property. yw Ja""J 416 8; _ :W YORK REPORTS, 2d SERIES `" TOY i `€'. �t Opinion per Chief Judge KnYE In June 1992 az `::} k� Chase Manhattan Bank acquired the premises f:�J 4 ;,� 'that the insignific �.�Y.. from Morgan by way of deed in lieu of foreclosure. In response .���. �� �a; -period failed to c to a request by Chase for advice as to whether nonconforming '; Deeming Morgan�. warehouse use was permissible, the New York City Depart- .`"` tions%,insufficient i ment of Buildings (DOB) issued an informal opinion that the ;i revoked petitioner {� nonconforming use at the premises had been re-established in r Petitioner comp fir{ April 1991 and could lawfully continue. to reinstate the p r.}•, Petitioner Toys "R" Us purchased the basement, first and of some goods in second floors of the building from a subsidiary of Chase in y ; coupled with the e t A. March 1994. Three months later, petitioner filed an applica- t` sufficiently contin F,. tion with DOB to convert the purchased premises into a retail �� the petition and 3"# petit oner to ma. i=4 toy store. DOB approved the application and in Septembers y. residentially zone(, 1994 issued a building permit authorizing the conversion. , The Appellate I The 38,000 square foot premises occupy both commercially :. the trial court, tl and residentially zoned space. A toy store is permitted as of yf right in the commercial) zoned portion of the remises on standard and con•: g Y P P •s .��,. activity from Apr Third Avenue but not in the residentially zoned section front- ;-+. ing on 80th Street, which includes the building's loading docks 3 j; "t}` forming use status %, .f�s,ti Division granted 1. (see, Zoning Resolution art II; §§ 32-00, 32-15). The instant x4 -0 k 4�� verse. dispute arises out of the DOB authorization to develop and , operate this latter segment of the property situated in the res- idential zoning district as a retail toy store—a nonconforming A use of proper '.; use. - ing, but lawfully e r. •' Respondent-intervenor "Neighbors-R-Us," a coalition of '; ,`, f zoning ordinance, r: t neighborhood and block associations, objected to the building ,` �Y American Law of'` permit and sought its revocation. In October 1994, DOB denied also, Zoning Resol f,. .the request. Respondent-intervenor then d the issu- ~ q Pl` :.. essarily inconsiste ante of the building permit by way of an administrative appeal ;,j t ' an existing zoning to the BSA. It urged that the nonconforming warehouse use `'�' : <211., ,1<.e Due to constitu had been discontinued during the two-year period from August undue financial 1989 to July 1991 and, therefore, the Zoning Resolution only nonconforming us, allowed the property to be developed in furtherance of a V1.,, courts and munici permitted use. ' ' ` " erance" of such u, The BSA held public hearings during a five-month period k '"`' P ; $; Trustees, 77 NY2d' concerning the nature and extent of warehouse operatio dur- �.}4 g tr��, nonconformin ue ing the period between April and July 1991 and cduct : 3 on e ` 4 the overriding pul site inspection of the building and the surrounding area. F .z r ^ ,. elsewhere is aimed a g pages g ;,� ± After reviewing hundreds of a es of documents and hearin elimination (Matt testimony from all sides, the BSA, "based on the totality of the x NY2d 278 284• M evidence presented, found the warehouse activity between , ;«r, 553, 559-560;see, 1 April and July 1991 minimal. Concludingthat the,Zoning Res= 3 g , . �.�r,. 6 69; at 500, 695 L�`, .. ;, 3, olution did not require complete cessation of the nonconform- �,; �;F, This policy disf,• j ing use as a precondition to termination, the BSA determined incorporated into SERIES TOYS "R" US v SILVA189 NY2d 4111 417 Opinion per Chief Judge KAYE: squired the,premises that the insignificant level of warehouse activity during that 3closure.,In.response period-failed to perpetuate the nonconforming warehouse use. -;then nonconforming ;;V 0" Deeming Morgans clear intent to resume warehouse opera- York City Depart- , tion's.insufficient to preserve the nonconforming use, the BSA ial opinion,that the revoked petitioner's building permit. ,en re- stablished,in e Petitioner commenced a CPLR article 78,proceeding seeking V reinstate the permit. Supreme Court held that thestorage to basement, first and of some goods in the warehouse during April to July 1991, sou led with the absence of any bad faith or fraud by Morgan, 3idiary of Chase in , er filed an applica- Vfficiently continued the nonconforming use. It thus granted P ........ *emises into a retail 1A,".11, the petition and annulled the BSA determination, allowing -and in September AN petitioner to maintain a nonconforming retail use in the he on. conversi residentially zoned space.both commercially The Appellate Division affirmed, one Justice dissenting. Like N� is permitted as of the 'trial court, the Appellate Division applied a good-faith V" 3f the Premises on Y)h standard and concluded that the concededly minimal storage coned section front, activity from April to July 1991 sufficed to preserve noncom- WiAtt, iing's loading docks C, t forming use status under the Zoning Resolution. The Appellate 2-15). The instant Division granted leave.to appeal to this Co urt, and we now re- . verse. ,on to develop and Situated in the res- fA" 2. Analysis —a nonconforming Ause of property that is no longer authorized due to rezon- ing, but lawfully existed prior to the enactment of the existing tirr 3, a coalition. of zoning ordinance, is a nonconforming use (see, I Anderson's jyed to the building American Law of Zoning § 6.01, at 481-482 [Young 4th ed]; see 1994, DOB denied also, Zoning Resolution § 12-10). Nonconforming uses are nec- allenged the is' su- kF essaril y inconsistent with the land-use-pattern established by tinistrative appeal an,existing zoning sicheine. ag warehouse,use 3riod from Au 'i"& Due to constitutional and fairness concerns regarding rding the 911 41 st 5 11 ­0 undue financial-hardship that immediate elimination of g Resolution only nonconforming uses would cause to property owners, however, furtherance of a courts and municipal legislators have adopted a "grudging tol- erance" of such uses (Matter of Pelham Esplanade v Board of ive-month period Trustees, 77 NY2d 66, 71). The law nevertheless generally views Alh'? 3e operations dur- gv,; nonconforming uses as detrimental to a zoning scheme, and and conducted a '; the overriding public policy of zoning in New York State and ailing area. elsewhere is,aimed at their reasonable restriction and eventual ,ants and hearing elimination (Matter, of Syracuse Aggregate Corp. v Weise, 51 �X ,he totality-of the NY2d 278, 284; Matter of Harbison- v City of Buffalo, 4 NY2d N activity between- 558, 559-560;see, 1 Anderson's American Law of Zoning§§ 6.06, t the Zoning Res_ 6.69, at 500, 695 [Young 4th ed]). the noncbnform- This policy disfavoring nonconforming uses was expressly BSA determined 'A'V�Y 'R incorporated into New York City's 1961 Zoning Resolution. qj 4 418 88 ;.a W YORK REPORTS, 2d SERIES '`; .'_ TOE Opinion per Chief Judge KnYE r•Y`:� i. •si:ve: The purposes of the Zoning Resolution were to encourage "the ; neither. irration, development of desirable residential, commercial,and manufac- r Via'' governing statute F.; turing areas with appropriate groupings of compatible and re- lated ?Y; aV Gliedman, 62,N� lated uses and thus to promote and to -protect public health ,w ,.„. . NY2d 975, 977). It f, ,t ' if it has a ration:safety, and general welfare (Zoning Resolution §'51-00). F pPelt Nonconforming uses, while generally allowed to continue (see, + :;:.4: deuce (see A fti Zoning Resolution § 52-11), were considered antagonistic to 5 ter of Fuhst v Fo, "subject to certain limitations (Zonin «:g V, those goals and thus question is one of x Resolution § 51-00). As explained in the Statement of Legisla- = '. deference to the '� t Ins. &Annuit A: ;.,�• tive Intent, [t]he regulations governing non-conforming uses ::��' .�.�:,r� y are therefore adopted in order to provide a gradual 'rem- ' ` Here, we mus y; edy for existing undesirable conditions resulting.from`such r ; '• determine the ar incompatible non-conforming uses, which are detrimental to under Zoning Re. - ° ` Z does not mandate the achievement of such purposes (id.). � ,,� , ' whether the BSA': One 'such restriction placed on the perpetuation of noncon- I:, y •;5,r,,.. forming uses is contained in Zoning Resolution § 52-61, which ;, forming warehous ,.. provides for the elimination of any nonconforming use that is jF3. (a) The Legal E discontinued for two years. Under section 52-61: ; Petitioner argu If, for a continuous period of two years, * * * the active operation of substantially all the non- Resolution § 52-61 conforming uses in any building or other structure ; ' s`r ' completely ceased: 4 minimal—preclud, is discontinued, such land or building or other structure shall thereafter be used only fora ;M1;f and Appellate D conforming use. Intent to resume active operations ' '? Morgan's use of tb '•: ity sufficed to press, shall not affect the foregoing,� (emphasis omitted). ` ' According to pe Whether petitioner can use the residential portion of the required roof that premises at issue here for nonconforming toy store use depends q P on whether its predecessor, Morgan, discontinued its noncon- ued as a preconditi ' a ` ter of Marzella v 't4f` forming warehouse operations for two years within the mean- f ; YXv: contention. In Ma,, ,.i ing of section 52-61.-This Court has never considered the proper „? ' P P to land that' had be( legal standard for determining when'a nonconforming use is :ram structure to house j, abandoned under this zoning ordinance. In revoking petition- house remained v Y er's building permit, the BSA construed section 52-61 as requir- XJ rather than four re ing substantial discontinuation, rather than complete cessa- concluded that no 5s� tion, of the nonconforming use by the property owner for two ;. families had been .,consecutive years, irrespective of any intent to preserve , 3 V''' insufficient evidenc. -� nonconforming use status. w. The BSA comprised of five experts in land use and planning, use had been abanc t P P P g, -,.;,In doing so, we E is the ultimate administrative authority charged with enforc- ing the Zoning Resolution (see, NY City Charter §§ 659, 666). ,;: �•, forming use" (id. } Consequently, in questions relating to its expertise, the BSA s - , ''.. . 's interpretation of the statute's terms must be "given great + t ;? ordinance in Mar-z weight and judicial deference, so long as the interpretation is Y : & ' nonconforming us. }. .`' 8- �.„W YORK REPORTS 2d SERIES :' � A 420 ,iF: TOY Opinion per Chief Judge KnYE 4� ' of Dobbs FerryCode § 300-81B). The term "abandoned" was Atl The carefully c not qualified in any way; the statute therefore gave no indi.ca- standard of subst .>� tion that anything less than complete discontinuation of the language of the st �nonconforming use would suffice to surrender it. ; 4M' the trial court ar. implicitly contain: . ; Similarly, in Town of Islip v P.B.S. Marina (133 AD2d 81), a also relied u on b ,, ing activity to con e;4ff, p y petitioner, the relevant zoning ordinance ;{; contained absolute terms, providing that "discontinuance of in the absence o =i an non[-]conforming use for nonconforming us y g period of one year or more ' :f? Generally, abai terminates such non-conforming use. The Appellate Division : , thus concluded that " 'discontinuance connotes a complete ces- , k; -W� both an intent to * * * act, indicating th, 4 sation so that a minimal nonconforming function, of y4 interest in the s L.,try itself, would not constitute an abandonment' " (id., quoting Anderson's Ameri u;•W.�, Baml Realty v State of New York, 35 AD2d 857). Indeed, in `"` nF ed]). In New York F each of the cases cited b adoptingcompletek the zoning provi, y petitioner ado tin the ces- ,z t: sation standard, the statutes spoke exclusively in terms of d}s- -- abandon—discont ?`• continuance, failing to qualify that requirement in any way ,. , specified period (see, e.g.,Baml Realty v State of New York, 35 AD2d 857, supra; >, =<F 33{ intent (see, Matte City of Binghamton v Gartell, 275 App Div 457, 459). r =} 656, 657-658). 1 Unlike the statutes in these prior cases however, Zoning ' '' �[ ] p g �:' �,�� Zoning Resoluti Resolution § 52-61 explicitly equates abandonment with two years—therek something less than discontinuation of the entire nonconform- q�:'; ;,`.'X° in use. Section 52-61 specifically terminates any further _ abandonment. Ind expressly stating �• ; nonconforming use when the active operation of substantially '" » g p y �9 '�=h�' shall not affect t ri all the non-conforming uses * * * is discontinued" for a J h : use has been discs continuous two-year period (emphasis added).. To construe this Notwithstandin; statute as requiring the property owner to discontinue all ing provision, pe , nonconforming operations—as the courts below did—simply #fit ` interpreted in its ; l ignores the plain language of the ordinance requiring that the 4' �* restrictions bein 7; owner merely cease "substantially" all of the nonconforming „ ' ,tint. rights, should be s _ use.'Allowing the slightest nonconforming function to preserve >' in favor of the r the nonconforming use, moreover, would eliminate the specific p s 39 NY2d 275, 277 language requiring active operations to avoid termination. ltY. k; ambiguous—its c: 1. Tellingly,the drafters of section 52-61 rejected a proposed termination y ;r forming activity Mt: Z, provision that omitted the qualifying language "substantially all." In a Zon- rr nonconforming o, `e, t`7;:. ing Resolution submitted to the City Planning Commission pursuant to a ? ,; owners intent in Jilt contract with the City of New York a special planning staff of architects i r a suggested the following regarding termination of nonconforming uses: "If a ` �, 2. Petitioner alter S, non-conforming use discontinues active or continuous operations fora .- M . discontinuation of su r` °aM continuous period of one year,the building or other structure or tract of land the plural "uses"—dis . where such non-conforming use previously existed shall thereafter be oc- ity of the number of cupied and used only for a conforming use. Intent to resume active opera- <` level of activity devotr tions shall not affect the foregoing (Voorhees, Walker, Smith and Smith, y . rule of statutory cons Report to NY City Planning Commn, Proposed Zoning Resolution §51-31 j {, `' the plural,and in the} [Aug..1958] [emphasis addedD. tion Law §35). ^.,.. 90 3ERIES TOYS "11" US v SILVA [89 NY2d 4111 421 Opinion per Chief Judge KAYE n "abandoneV was Z�­ q% 2� The carefully chosen words of section 52-61 thus impose a ,fore gave no indica- standard of substantial rather than complete cessation.2 The 4 language of the statute also contradicts the conclusion of both ,continuation of the F, ler it. the trial court and Appellate Division that section 52-61 T -faith standard, allowing nonconform- rina (133 AD2d 81) implicitly contains a good ing activity to continue upon a showing that a property o it zoning ordinance wner, I,fv, in the absence of bad faith or fraud', intended to resume "discontinuance of �,Q one year nonconforming use. or, more Appellate Divi Generally, abandonment of a nonconforming use requires Sion both an intent to relinquish and some overt act or failure to ates a complete ces- 'd, act, indicating that the owner neither claims nor retains any rming function,, of interest in the subject matter of the abandonment (see, 1 ent' " (id.,. quoting 2d 857). In' Anderson's American Law of Zoning § 6.65, at 678 [Young 4th deed, in ed]). In New York, however,-the inclusion of a lapse period in (g the Complete c'es- the zoning provision removes the requirement of intent to 2", abandon—discontinuance of nonconforming activity for the ely in.term' s of dis- ement in any way ifi�- specified period constitutes an,abandonment regardless of Z AD2d 857, supra; intent (see, Matter of Prudco Realty Corp. v Palermo, 60 NY2d -'4). 157, 459). 656, 657-658). s, however, Zoning Zoning Resolution § 52-61 provides a specific lapse period— )andonment with two years—thereby rendering the owner's intent irrelevant to ,ntire nonconform- 1�­ �T tates any further abandonment. Indeed, section 52-61 goes even one step further, ­1F expressly stating that "[flntent to resume active operations an of substantially shall not affect" the determination whether a nonconforming continued" for a W' use has been discontinued. To construe this 4�- Notwithstanding the unique language of this particular zon- o discontinue all if� W ing provision, petitioner urges that section 52-61 must be ,elow did—simply interpreted in its favor as the landowner. To be sure, zoning requiring that the ie nonconform, restrictions, being in derogation of common-law property' ing rights, should be strictly construed and any ambiguity resolved nction to preserve pl k", in favor of the property'owner (see, Matter of Allen v Adami, IX ainate the specific )id termination. 39 NY2d 275, 277). Zoning Resolution § 52-151, however, is not ambiguous—its clear language prohibits additional noncon- proposed termination! forming activity when "substantially all" of the "active" atially all."In a Zon-, nonconforming operations are discontinued, and deems the -ission Pursuant to:a owner's intent irrelevant. Furthermore, public policy specifi- IF, ag staff of ar I t;N chitects )nforming uses: "If a .6� 2. Petitioner alternatively urges that, because section 52-61 refers to ,us operations for a discontinuation of"substantially all the non-conforming uses"--emphasizing cture or tract of land the plural "uses"--discontinuation should be measured by whether a major- all thereafter be oc., '24 ,esume active opera ity of the number of nonconforming uses is maintained, regardless of the level of activity devoted to each use. Petitioner, however,overlooks the basic r, Smith and Smith, K1,M�,,, rule of statutory construction that "Mords in the singular number include I gResolution 51-31 the plural,and in the plural number include the singular"(Ge'neral Construc- P, tion Law§35). A81 422 8_ _'EW YORK REPORTS, 2d SERIES �'. TO Opinion per Chief Judge KnYE cally supports termination of nonconforming uses, and -the ; _ Morgan's wareh ok Zoning Resolution itself seeks to achieve "a gradual remedy" from April to Jul; for "incompatible" nonconforming uses (Zoning Resolution ;:. status under,Zoi r „ § 51-00). As we have stated in a related context: prohibited from c the-residential) It has been said in -New York that a zoning r '' y ordinance must be `strictly construed' in favor of r' way, of course, pc F * * * ment of the prop, �H�"K U'Fktc. -Eta: the property owner . By way of counterpoint, t"N where a toy store however, it has been said, with equal conviction, , r., The BSA's det(, Ty, that the courts do not hesitate to give effect to timed nonconfoa f' restrictions on nonconforming uses * * *. It isTP because these restrictions flow from a strong policy �, = months must be c r, favoring the eventual elimination of nonconform- ported b� p y substa -a NY2d 591 598)., ing uses (Matter of Of)`'Shore Rest. Corp. v Linden, ' '4;4,, 30 NY2d 160, 164). y�^ reviewing court n �.; . `�4" BSA—even if the Thus, the interpretation of section 52-61 adopted by the BSA ently (Matter of jF and Appellate Division dissenter—requiring only substantial, of Collins v Coda t rather than complete, discontinuation to terminate a noncoar sion, moreover, t forming use, regardless of the owner's good faith—gives effect not bound by the to all of the ordinances terms (see, Matter of Bliss v Bliss, 66 § 72-11). NY2d 382, 388-389 [courts must, where possible, give meaning [2] The BSA's r•.tk' and effect to every word of a statute]) and also comports with :T" «t�ti`` four-month eric' . . ': P the policy underlying the Zoning Ordinance. P y 3n g g compared to the The Appellate Division's concern that anything less than company. It furt complete cessation under section 52-61 will lead to arbitrary A }`` P y were shipped to t)- results warrants comment. Section 52-61 imposes an objective, 1 kr :;_ occupied only one not subjective, standard: substantial discontinuation of active, �i{: the building. Thi nonconforming operations. Stated otherwise, section 52-61, {: roborated by test terminates a nonconforming use when only minimal noncon- ployee who, after forming activity continues. Whether this standard has been r : `4' '. storage lockers, s., satisfied will, of course, turn on the peculiar facts of each case. `; files; a Chase loan All zoning cases are by their nature fact specific, and as a lead r rx' ` observed about 2(' `4� , ing authority recognizes, the right to,a nonconforming use ';; residents who noti must necessarily be decided "on a case-by-case basis" (1 ; {„ and a local real t { t,s Anderson's American Law of Zoning 6.23, at 553 [Yours 4th �' g § g ;Y _ �x;,;,. completely"ki empty ed]). Certainly, the DOB and BSA, comprised of qualified -.�t,a� Based on this ev experts, are capable of making these determinations. Morgan's preside building was used (b) Application of the Legal Standard to the Facts April to July 1993 It is undisputed that Morgan's warehouse use from 1961 to The BSA's concl :>3 August 1989 was permitted as a nonconforming use,,and that. r` 4.: the drastic reduc" + Morgan completely ceased all nonconforming warehouse opera- Al ':BSA, specifically r f tions for 20 months between August 1989 and April 1991..The ri�r' ' for the critical fog. �s only question before the courts below and this Court is whether l? ' went a legitimate` qq 1y,33; •A4Ic i5 ?y il: DUNHAM , a 424 89 NEW YORK REPORTS 2d SERIES �`��t•?,".i�{, :;,fir. � •rFtT;^� Opinion per-Chief Judge KAYE 14 f:r1s ords, tax documents, advertisements, liability coverage, Y, [6 `y ;t customer records, employee records, certain directory listings, JAMEs DUNHAM, A telephone records or sales receipts. Jeffrey Morgan even s- ' a,c .= Iivo., Respondej acknowledged that the company failed to renew the requisite q :t Actions.) ,, Department of Consumer Affairs license after it expired in ., , April 1991. " ``` Submitted 1, i F��.i. The BSA thus properly considered objective factors regard- g degree of nonconforming warehouse use, in the nature and de , and its determination that Morgan's level of warehouse opera- r APPEAL by perm 4 tions from April to July 1991 was too insignificant to preserve rr ' nonconforming.use status under section 52-61 was supported 2,, of an order of the by substantial evidence. That conflicting inferences may have the Second Judicia ,,:.. ,� jA§3.: as (1) reversed, on 1 been drawn from this evidence is of no moment. [T]he duty of ` c,;t .!; R "" p weighing the evidence and making the choice rests solely upon ,, . Court (Joseph M. I ' reargument adher the [administrative agency]. The courts may not weigh the evi- denied those bran, ' dence or reject the choice made by [such agency] where the ev- idence :{£ „ �. , third-party plainti is conflicting and room for choice exists (Matter o ���:, Stork Rest. v Boland 282 NY 256, 267). f summary judgmen' on Labor Law § 24 Finally, petitioner's contention that the BSA departed from p �•,:. motion by first an its own precedent is unavailing. In Matter of 4 7021 4 712 Clar- -, s' houn for summary endon Rd., Brooklyn (BSA Resolution Mar. 23 1993), the ques- s third-party compla tion was also whether nonconformingcommercial '`` commerc operations �� `4��'��� to serve an amend, were abandoned under Zoning Resolution § 52-61. After review- 4• : ' the record, dismisE ing various business records attesting to the continuous com- ; P= fendant Hilco Con: 1t M�l: mercial•use of the property, the BSA determined that the ac- Dunham a Hilco ti ve operation of substantially all the nonconforming use at r the premises had not been discontinued for two years. In reach- ing the opposite conclusion here the BSA noted the failure to 4F `. produce similar business documents. Clarendon, therefore, is Judgments — Sumn not inconsistent with the instant case. %.. Party 1. Under CPLR 321 Accordingly, the order of the Appellate Division should be '' �N '? party other than the i reversed, with costs, and the petition dismissed. ` < ., court may grant such Judges SIMONS, TITONE, BELLACOSA, SMITH LEVINE and CI- ,. ` court maysearch the ' PARICK concur. "' moving party only wi Order r eversed r; subject of the motions etc. . 2'`- ' tion by any party to bl ever other art wou Y er party of proof on summary j a >. tion in which plaintifl common-law negligen( and 241 (6),the Appel) F. 3212 (b) by itself gran ty f subcontractor on the i ir• the alleged negligence ing papers. "A R, Y;1 ommonw Ith .;COMMONWEALTHTITLE' e��/+O'�,r. LAND -INSURANCE C -ors F'.r.'P�� C, � �'. •�-' `' 'a pf�y,�'; �t i.¢', t 37cTy :�}( yy d SERIES MEMORANDA Second De pt., August, 1987 81 ` 1 5�.1 jf�Y5 property, the 'y�� ':,!financial circumstances of the respective parties and in view I e Court ��N�so Orange '�'" `'`g � � f what we perceive to be the reasonable value of the services which'granted q �rendered (see, Domestic Relations Law §237). In this regard, t' t dismissing the ;� �we note that the application for counsel fees submitted b the F� PP Y j , 6 against the ,realife s attorney, wherein the sum of $150,000 was sought, Via;` ends to strain credulity.3. f q,"However, the Special Referee did not abuse her discretion ad to satisfy the ' >' b requiring the husband to a the wife the sum of 5 000 Y sx Y; q g pay $ , ;ral Obligations ,r,jepresenting his contribution toward the fees for the wife's entify the prop ;1:t=ekpert witnesses. aencement date :'#t `3, Accordingly, the •ud~a.� �., judgment is modified by reducing the coun- 4; planning board "'j"'sel fee award to the extent indicated. Thompson, J. P., Law- Moreover, the NRR'rence, Eiber and Spatt, JJ., concur. do 'the parties 4 ; preparation and 9'10 TowN of IsLIP, Respondent, v P.B.S. MARINA, INC., et 1!; A kx ;L:xi.� ppellants.—In an action to permanently enjoin the defen- ' ��sdants from operating a marina in the community of Seaview, mitted or were . '`'Fire Island Town of Islip, the defendants appeal from a -ties specifically f,' III,. P� w, the purchase `_. .n. udgment of the Supreme Court, Suffolk County (Gerard, J.), the Statute of ,l Fw,: dated May 4, 1987, which, after a nonjury trial, permanently ;� '§',, Jomed them from operating e marina. 250; Tamir v. :7�= en ti the i ;. ;x r 607; Sheehan v ;t ` m,K ;;Ordered that the judgment is reversed, on the law, with <,: d 186). Mo11eIi, *' ,; �{-costs, and the action is dismissed. We find that the plaintiff failed to prove that there was a rtermination through discontinuance of the a ' Indent V JANE tT• = g ppellants approx- { ' imatel 40- ear preexisting, nonconforming use of the subject I. 1.) JANE E. AA.' Y Y P g, g J :i ,: ;:property as a marina. Town of Islip Code §68-15 (B) provides INTLE, JR., Ap- :{; .'that "discontinuance of an nonconforming use for period of ���` Y g lated matrimo- � ;t��„�6- ' so much ofa ,s,� one year or more terminates such non-conforming use of a # ; v r premises and thereafter said * * premises shall not be (England, R.), ,rased except in conformity with the I ; P y [the] of this ordi- y the wife the na " " of $5,000 in ,slaw the element of tent, sot that discontinuance of the non- { Im so much of .r= �:4$`,,'conforming use for such period, if reasonable in length, t l to pay only .6a; :.<, g f p ll# amounts to an abandonment of the use (Village o S encer- i�`:i ort v 'Webaco Oil Co., 33 AD2d-634; see, Baml Realty v State he exercise of T' i`p' - decrmof,New York, 35 AD2d 857; Matter of Daggett v Putnam, 40 is etal para= � °a=='AD2d'S76• , Five Hundred' see' . see also, Matter of Marzella v Munroe, 69 NY2d However, «[a] discontinuance connotes a complete cessa- cords "Fifteen so that a minimal nonconforming function of itself, tdgment is af- 1, ''`:: , C from, withoutr.' ; "would not constitute an abandonment (Baml Realty v State of New York, supra). Here, it is not disputed that the marina .:,was fully used through 1983. After a contract of sale was :es to the wife ;. ,si ed and while certain litigation was s g pending, the appel- ;. based on the kV+ ' .�11! lants leased' one of the moorings to an attorney for the ` 82 133 APPELLATE DIVISION REPORTS, 2d,SERIES MEMO 8eaview Terminal Company, Inc., the predecessor owner of Ll ;','�,Tostflre value of the sub ect pro jperty, for the years 1984 and 1985, and thai at ,,�' least twice during each of those seasons, he used the marina. , ,,•Ireplacement, and dent as a matt( Subsequently, the marina was used during the 1986 season f `,5 Underwriting Ass Thus, it cannot be said that there was a complete cessation o' ns; Co 89 AD2d the use of the property as a marina, thereby resulting in a termination of a nonconforming use pursuant to Town of Islip �% .tportion of the ver if or fire damage t, Code § 68:45 (B). -,.Xthe Plaintiffs' rec( 8 In light of our determination, the other issues raised by the contents. Thomps !- appellants need not be reached by this court. Thompson, J. P. _,-,",concur. Lawrence, Eiber and Spatt, JJ., concur. - '22 In the Matt 21 JAMES VOULo et al., Respondents, v ALLCITY INSURANCE 1§OAi6 'OF APPEkl.- COMPANY, Appellant, et''al., Defendant.—In an action to re- CREIGHTON ­M­ - plk,-an cover damages for breach of a fire insurance policy, the W proceeding pursua defendant Allcity Insurance Company appeals from a judg- nation of the res Village of Elinsfor ment of the Supreme Court, Richmond County (Sangiorgio, J.), favor of dated April 30, 1986, which, upon a jury verdict, is in li—variance to the in the plaintiffs and against it in the principal sum of$28,000. W from an order of Ordered that the judgment is modified, on the law, by (Ferraro, J.), date re ducing the amount awarded to the plaintiff to the principal t petition as time ba sum of $10,000; as so modified, the judgment is affirmed, Ordered that th( without costs or disbursements, and the matter is remitted to an application for the Supreme Court, Richmond County, for the entry of an VO4,` to Presiding Justic, appropriate amended judgment. Presiding Justice 1 This action was brought on a fire insurance policy, issued by .further, the appellant to the plaintiffs, to recover the damages sus- . Ordered that.the tained by the plaintiffs as a result of fire in their 'house The policy provided and the appellant set forth in its answer that ordered that th, the company should not be "liable for loss occurring (a) while Payable by the app( C . the hazard is increased by any means within the control or The ,petition wak A-'- knowledge of the insured". The policy also provided that the was not comment( company's liability was limited to the actual cash value of decision of the Zor, the property at the time of loss, but not exceeding the amount Village Clerk (see, 1 which it would cost to repair or replace the property with v Luney, 128 AD2d material of like kind and quality". The jury's determination 69 AD2d:836). that the appellant failed to prove a material increase in the --We have review, risk of loss within the knowledge or control of the plaintiffs d find- them to Nli... `4`11 g� an -1, Weinstein and Rubi was not against the weight of the evidence. There was no proof that the hazard was increased subse. ..... 23 In the Matter quent to the issuance of the subject insurance policy or that COUNTY DEPARTMEN C, No the plaintiffs' storage of gasoline was not an 'ordinary use of P ."Mr" D., Appellant.—In t, their property. Therefore, that part of the verdict should not 1`141, Law § 384-6 to term be set aside (see, Nazito v Holton, 96 AD2d 550). two children on the V However, the only proof the plaintiffs submitted of the vr,�,,- neglected, the moth N.� T, - MEMORANDA 967 z want to CPLR€ In the Matter of NICHOLAS MARZELLA Res ondent, v DA ID '; } :ding with fur P v =(r Fµ?,J.d3 MUNROE et al. Constituting the Zoning Board of Appeals Sault. He con- ,�� f�. � = . ;moron-law and ,� ;r` y;, for the Village of Dobbs Ferry, Appellants. ;' f ding in a prior 'r��r" t„y' Decided May b,19s7 rtment of Pro- ` • f. . SUMMARY evidence that. ?, ;;,, q. ' - ; APPEAL by permission of the Court of Appeals from an pitting the acts] "_`'���: •�t''' k ' ;�.` "�, order of the Appellate Division of the Supreme Court in the Although the ";' x, •,, •' P ' " - Second,Judicial Department, ` ° y y, , entered October 27 1986 which r, !tlon Should,IJe� p f f affirmed. an order of the Supreme Court W. Denis Donovan �'i,i the face of, ; �e -=; `nt.' J.), entered in Westchester County in a proceeding pursuant ise a aubstari=:.-�;�; ��: �,,. rise a 575, 581) to CPLR article" 78, (1) granting petitioner's application to ,2 annul a determination of the Zonin Board of A ;ial allegation Ei,:. g' Appeals of the -'Q5 . Village of Dobbs Ferry which had denied his application for a ;' :ollateral estX`;Fys=;,; 1,q r,op- building �>7 permit, and (2)remitting the matter to the Board for Lt under thesert a hearing on whether the proposed restoration of the subject 12'3: I-Mfi r dismissed the;b would violate the ;A"m l�° property Village g ode.y�; : �` e Zoning C Matter f oe 123 AD2d 866 modified. ties only where `s4 � o Marzella v Munr -ourt actss':fiti�y' Oaf ;z i,x� "nks' p;• ri i HEADNOTE or in excess Municipal Corporations—Zonin g which It llas�'kr•,, tr.. n a I proceeding '=^U r ,, p g to annul a Village Zoning Board of Appeals determination tY2d 348, 352):-.;,h;;, R��, which denied petitioner's application for a building permit, an order of the " i11na1 cases, ' ,' ; Appellate Division, which affirmed an order granting the petition and t0:. e,:, yri dal prOCeedi'ng8$?k tyy , , remitting the matter to the Board, should be modified, by deleting the :.; � i remittal provision, and otherwise affirmed. Where the property contained a ' determinations ; .r P P Y :! s 'a n, xi" r� _�.: three-familyresidence and aone-famil residence occupied as nonconform- •.� 1Vlatter of RiI.S'jlttG ',1 ing uses and the one-family residence subsequently became vacant before c.I}:.. . Y q Y , tture appellate'x�x;,.: petitioner's purchase of the property and his application to renovate the 3`, Yw < .3a 'try. gular appellate�a4r,; ,1, one-family residence, the Board improperly determined that the use of the property for four families had been,:abandoned. Abandonment does not y 4= ly resolution Of2i,' . 2 t occur unless there has been a complete cessation of the nonconforming use, 1 constitutionals' :i r " here,there was no evidence before the Board that the entire nonconforming g ter of Rush,:U r` " use had been abandoned. ;ollateral estop= 5; :€ Y= ,�' 1 `'A APPEARANCES OF COUNSEL 1 '` proceeding VA if ,, f: type of claimed1' hry' >=t John L. Murray for appellants. ng the regul ,R*' Robert J. Ponzini for r ,,{Yak fY2d 815 8'16 G F. , espondent. a- OPINION OF THE COURT "k vt7x KAYE, ALEXANr ti MEMORANDUM. f t The order Appellate cur. a of the Division should be modified: �.,;,• xandum. "T The Z oning Board of Appeals of the Village of Dobbs Ferry ' ZBA appeals from he Appellate ( ) pp om an order of Division which 11 A- 968 69 NEW YORK REPORTS, 2d SERIES affirmed Special Term's judgment annulling, the ZBA's deci- 4 Rules of the C, 41, sion to deny petitioner's application for a special building s:s fled in accords permit to restore a building on his property. Petitioner owns a modified, affirn A parcel of land located in the Village of Dobbs Ferry which has two structures located on it. In the front of the lot is a three- 1, family dwelling and in the rear is a one-family house. The prior owner of the land lived in the one-family house and THE PEOPLE OFe,A rented out the other building. A local zoning ordinance was U_ Hims, App passed sometime prior to 1969 which made such use noncon- :';iv forming since it only permitted one two-family structure on It" the lot in question. Both the one;.family and the three-family dwellings continued to be occupied as existing nonconforming APPEAL, by pE uses until 1969. Between 1969 and 1984 the rear structure 11.111� of the Supreme "YY i remained vacant while the front dwelling continued to be 2 an order of th: used. In 1984, petitioner purchased the property and applied affirmed a judgr for a permit to renovate the rear building. Petitioner's appli- J.), rendered in cation -o was denied by the village building inspector and the pf;�� plea of guilty, decision was affirmed by the ZBA. The ZBA held that the use 730 of the property for four families had been abandoned and that Defendant wa under the Dobbs Ferry Code an abandoned nonconforming use three incidents , cannot be resumed (see, Village of Dobbs Ferry Code § 300- M'. assaulted and r( a. 81B). hoc Police station wi Aba ndonment does not occur unless the has been a com- were looking fo station plete cessation of the nonconforming use (see, Matter of Dag- s he mad gett v Putnam, 40 AD2d 576; Baml Realty v State of New reduced to writ 4.1 York, 35 AD2d 857; City of Binghamton v Gartell, 275 App Suppress those s Div 457, 460; see also, Barron v Getnick, 107 AD2d 1017, 1018). to three counts c. three separate in Here, there was no evidence before the ZBA that the entire The Appellate nonconforming use had been abandoned. Thus, the petition 4$ was properly granted and the determination of the ZBA People v Hicks, annulled. A) N Supreme Court's order as affirmed by the Appellate Division remitted the matter to the ZBA to determine whether the Crimes—Confessic petitioner's application sought to improperly extend or en- in a criminal pro: large the structure. However, inasmuch as petitioner's appli- ments made to polio cation before the ZBA only sought to restore the rear strut- and his brother volu J) given Miranda warn ture to its former condition, and in light of the ZBA's request speak to lawyer" th( trouble, to which he that the matter not be remitted, Supreme Court's order Met, .�tl, no in custody, are a should be modified by deleting the provision ordering such t remittal. et tally inform the poli( circumstances,his rig Chief Judge WACHTLER and Judges SIMONs, KAYE, ALEXAN- DER, TITONE, HANCOCK, JR., and BELLACOSA concur. On review of submissions pursuant to section 500.4 of the Stanley Levine I R ,y JS y ` MEMORANDA 969f' 5 f a' the ZBA's deci- $;- I"k Rules of the Court of Appeals (22 NYCRR 500.4), order modi- ecial building r Yy p g fled in accordance with the memorandum herein and, as so 'titioner owns a y. modified, affirmed, with costs to petitioner. 'erry which has 4i lot is a three- , lily house. The `' '`'' THE PEOPLE OF THE STATE OF NEW YORK Respondent, v KEv1N oily house and es P ` HICKS, Appellant. ti f ordinance was ;5 ,ch use noncon- $. Decided May 5,1987 ,6 1 structure w> A 'y on SUMMARY he three-family `„ ? 4V {:> nonconforming y permission of a Justice of the A x ` APPEAL b Appellate Division rear structure rs ` of the Supreme Court in the First Judicial Department, from #, ;; p ontinued to be ,,; an order of that court, entered November 20, 1986, which Ay and applied 04 affirmed a judgment of the Supreme Court (Howard Goldfluss, ' " J.), rendered in Bronx Count convicting defendant upon his titioner s appli- Y, g p < .` lea of guilty, of robber in the first degree (see, 108 Misc 2d ar'•}-'';pector and the < . p Y� Y a ;ld that the use. ='' 730). idoned and that ;,,r - ,, Defendant was charged with various crimes arising out of ��;x °;' three incidents in which female complainants were sexually , �conforming use .��`.� • .,�,� cry Code § 300- k; : ;,; assaulted and robbed. Prior to his arrest defendant went to a }. 7 p g p "N police station with his brother after being informed that police ;f;�;;�s'� as been a coin- were looking for him for questioning. While at the police a F. Matter of Dag- '�>��n °�_ station he made inculpatory statements which were later `-,Uv�� reduced to writing and signed. His subsequent motion to State o New 44s q xrtell, 275 App' 1w, suppress those statements was denied, and he pleaded guilty t,?f A :z to three counts of robbery in the first degree in satisfaction of ' °'n^ ,� )2d 1017, 1018): {_- rb, three separate indictments. that the entire", :,y;•. The Appellate Division affirmed without opinion. c is, the petition -;;V PP n of the ZBA' tPeople v Hicks, 124 AD2d 1076, affirmed. pellate Division' HEADNOTE to whether the;' r=°l `° i`` Crimes—Confession extend or en- <:<;. In a criminal prosecution wherein defendant sought to suppress state- sf 'u ments made to police, the findings of the suppression court that defendant titioner s appli- r,. w and his brother voluntarily came to the police station; that defendant was the rear strut- .. .. given Miranda warnings; that when defendant asked the police should I ZBA's request }: .w speak to lawyer"pe wyer they responded by asking him if he thought he was in Courts order N,�#'err trouble, to which he answered "no"; that defendant was free to leave and ordering such =' 7` not in custody, are all undisturbed. Defendant's inquiry did not unequivo- r �' tally inform the police of his intention to retain counsel, and, under these r' ' circumstances, his right to counsel did not attach. KAYE, ALEXAN- '1 Tr �rr � S ''" 'J' APPEARANCES;ur. %t F OF COUNSEL ;1 ,)n 500.4 of the.g Stanley Levine for appellant. J. r Page 71 Hearing Tr____cripts March 25, 1999 - Board of Appeals U � AAR ` siggg ® 10:02 P.M. Appl. No. 4668 SOUTHAMPTON LUMBER CORP. This is a request for a Variance under Article XXIV, Secinn.� 100-241-G, for permission to reinstate (re-establish) use as a lumberyard and related activities, which use is nonconforming in this Hamlet-Business Zone District. Location of Property: 13650 Main Road, Mattituck, NY; County Parcel No. 1000-114-11-24.3 CHAIRMAN GOEHRINGER: I have a survey dated November 30, 1998, indicating at least two rather extensive buildings on the property and some concrete bins in the rear. This is a lumber yard which was a lumber yard until Southampton Lumber closed the store some years ago and most people are aware of its existence and its placement and as it exists in the community and I have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. Mr. Ham, I guess we're ready. MR. HAM: Stephen Ham, 45 Hampton Road, Southampton, NY. I have affidavits of mailing and posting, Memoranda, Mr. Horning. CHAIRMAN GOEHRINGER: Thank you. MR. HAM: I would like to talk about the history just a little bit because I think that's sought of important to let you know why we're here and starting in 1925 and I'll be brief, I hope. Southampton Lumber was incorporated in 1925 and was actively engaged for more than 65 years in the retail and wholesale to some extent, the sale of building materials. At one point, we had several yards on the South Fork, one in Moriches and then recently in 1983 acquired the Mattituck yard from Reeve Lumber. The company is owned by about 200 share holders, most of whom are residents of the East End. In the early 1990s, the effects of the recession and some competitive disadvantages, forced management to make a decision as to whether to continue it as a going business or to preserve shareholder values by essentially going out of business and selling the assets in connection with liquidating the company for the shareholders, and of course that's a lengthy process. We found a buyer for the principal yards in Southampton and East Hampton in 1993 and then that was Riverhead Building Supply which took over those yards. The Moriches yard was very difficult to sell but, we finally closed on that sale. In addition, other assets owned by the company over the years, mortgages and even some other real estate, which were taken in connection with credit, collections and so forth and Mattituck proved to be a very difficult sell and although the a, we were told that at one point that the a, we should ask in the seven hundred thousands and I think we have the President of the company is here and to go over the listing history which I'm not quite as familiar with but, and in the end, we had an appraisal in 1995, which is indicated on a letter from Andrew Stype which is attached to my Memorandum at $525,000. Again, there was very little interest was shown until finally this past summer and fall. A firm offer was made and accepted by Speonk Lumber Corp. and we enter into a contract with Speonk for a sales price of $430,000. Speonk's lawyer who is here tonight, Mr. Saxstein, a very astutely required us to deliver Page 72 Hearing Ti—.3cripts March 25, 1999 - Board of Appeals an updated Certificate of Occupancy. Our Certificate of Occupancy is attached to my Memorandum. It was issued in 1983, for a Preexisting Nonconforming Woodworking and Lumber Business. I applied for the updated Certificate of Occupancy and the Building Inspector called me to say, that he thought we had been an abandoned use under Section 100-241 G. I mentioned to him that although we had not actively engaged in the sale of lumber since going out of business in 1983, we did have a woodworker on premises continuously since prior to 93. 1989 I believe and to the present day and I produced an affidavit from John Rose which a copy of which is attached to your affidavit that was filed with the Building Department. Nevertheless, Mr. Forrester denied my application for the updated Certificate of Occupancy and we are now here for that reason. I have H. Merrill Becker, Jr. , whose the President of the company and Denis Smith who is the President of Speonk Lumber Fork as well as his attorney, Mr. Saxstein. I want to briefly tell you what's in that Memorandum. It's about ten pages long. The first five or so pages are devoted to a legal argument that we should not be required to be here for the reason that the use under New York State Law, Case Law, was - should not be deemed to be discontinued because of the Southold statute does not state that "there's anything short of an entire discontinuance" is one of the words that argues in the cases. It has to be entirely discontinued a nonconforming use. Unless you have a statute that says something less than have full discontinuance, is sufficient for that purpose and I've made that argument to Mr. Forrester and he said, that's why we have Zoning Boards. So I hope you'll look at that argument and if you need the cases that are referred to in there, let Mrs. Kowalski know and I'd be happy to fax copies of them. Of course, I could not leave it at that, so the second part of the Memorandum does address issues that I think you should consider primarily that this property is based on listing history which Mr. Becker can go into a little bit. You can see who is interested in this property? A lumberyard. And that's basically the only serious offer we've had and even that is well below the asking price which we had, but I'd like to point out further as I do in a footnote, that the town by implication is telling us, that this property is worth $655,000 because it's assessed at 19,000 and the equalization rate is 2.9 0, which would leave one to believe that it has that value. I asked for an opinion from an expert Andrew Stype. His letter is attached and he's somewhat familiar with the listing history but he also suggests in his letter that we are really suited for a big lumber yard type use, not for the permitted uses in the HB Zone District. We could almost argue that we would qualify as a retail store because as Mr. Smith will tell you, he intends to operate as Southampton Lumber and Reeve Lumber operated before. It will be more of a retail operation. However, Mr. Forrester in the Building Department suggested that because there is a use in the B-Zone called, I think it's called "building material and storage," that by implication that's excluded from the HB District. But, well, I think I've said enough for now and if you have any questions of me, you can ask them or I might introduce (changed to tape 3-A) . Page 73 Hearing Ti___3cripts March 25, 1999 - Board of Appeals CHAIRMAN GOEHRINGER: Mr. Ham. MEMBER DINIZIO: I definitely would like to see how you advertised it and if you could have those cases you know - CHAIRMAN GOEHRINGER: Yes, I was going to ask you for that too. Can you fax them over to us. MR. HAM: Absolutely. MEMBER DINIZIO: That would be very helpful. MR. HAM: And how it was advertised, well that, I think Mr. Becker might be able to answer that. MEMBER DINIZIO: Yes. MR. HAM: But I certainly will give you the other cases. CHAIRMAN GOEHRINGER: Are you done, Mr. Dinizio? MEMBER DINIZIO: Yes. CHAIRMAN GOEHRINGER: Ms. Collins? MEMBER COLLINS: As to part one of your case, that you shouldn't have to be here because it wasn't discontinued. I, of course, read Mr. Rose's affidavit, but it didn't give any sense of the relative scale of his operation versus the operation when it was going full scale yard. MR. HAM: I think if you look at those cases, the minimum activity is sufficient and in one of the cases, there was a marina and I believe it was the Town of Islip that was closed for two years. They had a one year statute, but it wasn't completely closed. They rented one of the docks or something. That was held to be sufficient. Another case, a house, there were two homes on a lot that was later upzoned to allow only one. Of those two homes, one had been vacant for 15 years and the Court allowed it. There is a, the most recent Court of Appeals, the highest court in the State, the most recent decision interprets a New York City Ordinance where they did say that they had lost the use but the New York City Statute had a lower standard. In other words, they had to continue - to preserve your use, you had to have an active operation of substantially all the uses and in that case, the court clearly distinguished the types of ordinance like Southold's which just say, discontinuance - which is then interpreted to mean the entire discontinuance. CHAIRMAN GOEHRINGER: Thank you. MEMBER COLLINS: Another quick question. I probably will find it in your Memo. Assuming that we decided that we had to treat this as a discontinuance and therefore address the variance that our Page 74 Hearing Tgu..,;cripts March 25, 1999 - Board of Appeals statute says that we can give to waive the -- Our statute says, that if you discontinuance a nonconforming use for at least two years, then you can't start it up again unless the Zoning Board of Appeals grants you a variance. MR. HAM: Yes. MEMBER COLLINS: OK. I gather from what you're saying that you think that there is a clear basis for granting that variance using essentially the use variance standards. That there is no other way to a use the land. MR. HAM: Well, that's been the history. Is there no other use? I can't, I can't say that. No. You could tear those buildings down and put a mall in there, or, a theater or something with appropriate site plan approval and so forth. The point, the main point is that for all intensive purposes there is no other use for it. As our history of our trying to sell it shows. MEMBER COLLINS: No, that was why I was asking you that because our statute, of course, doesn't tell us what kind of a variance we're going to grant if we decide to do that. Fine. Thank you. MR. HAM: That's a good point. CHAIRMAN GOEHRINGER: Mrs. Tortora? MEMBER TORTORA: I am familiar with two of the three cases, in particular the Toys R Us case which you cite in here. This, the original Certificate of Occupancy was for a 'Lumber and Woodworking Business,' is that correct? MR. HAM: Yes. It is attached to the Memo. MEMBER TORTORA: The Woodworking Business by affidavit has not been discontinued at any time? Is that correct? MR. HAM: That's correct, and Mr. Becker who has dealt with that more intimately than I can so attest, and if you need live testimony we'd be happy to produce Mr. Rose. MEMBER TORTORA: So actually what you're asking for us to do in the first instance is to reverse the decision of the Building Department that the use hasn't been abandoned. MR. HAM: Yes. MEMBER TORTORA: In which case no variance is needed because it's a continuation of a nonconforming use? MR. HAM: Yes. MEMBER TORTORA: And in the event the Board doesn't agree with that, then you would present a case for a variance of the nature Page 75 Hearing Ti_ ,Acripts March 25, 1999 - Board of Appeals applicable to that - which would probably be use variance. So, I think probably the best thing for the Board to do would be to, you know, to come to some kind of decision as to a (hesitation) . MEMBER COLLINS: Step one. MEMBER TORTORA: Step one because a - CHAIRMAN GOEHRINGER: I don't know if we necessarily have - MEMBER TORTORA: But step, step 2, is a horrendous process. MR. HAM: Well we 'have, you know, I can, I can say in the alternative, we have the . presence of both companies here tonight. So, in' case you were to deny on the first count, I think it would be helpful so they don't have to come back if you could take testimony on the second count. MEMBER TORTORA: You want to do all that tonight? CHAIRMAN- GOEHRINGER: Sure, we're, here. MR. HAM: Unless you're inclined to agree with me at this point. CHAIRMAN GOEHRINGER: I suggest we take the testimony. I mean that's the point. The gentlemen are here. That's what they came for, you know, I mean that's it. We take it all, or we make a determination one way or another. MR. HAM: You might not have to reach the second if you can agree with me on the first, but since they are here, and if you don't agree with me on the first, then, I would have to bring them back and they have waited a long time. CHAIRMAN GOEHRINGER: Who are you going to give us first? MR. HAM: I'm going to give you Merrill Becker, -who is the President of Southampton Lumber Corporation. CHAIRMAN GOEHRINGER: Mr. Becker, would you raise your right hand please. Do you solemnly swear that the information you're about to give us is the truth to the best of your ability? MR. BECKER: Yes, I do. CHAIRMAN GOEHRINGER: Thank you. What do you want to tell us? MR. BECKER: ' OK, that I am the President of Southampton Lumber Corporation. In 1983 I came over on the North Fork, talked with Larry Reeve, went back to our shareholders, and Reeve Lumber looked right for us and basically because it was the same type of operation that we had on the South Fork: It stored building materials, it had paint, builders' hardware, that kind of stuff. Builders' hardware and lumber. In the back it had a millwork shop Page 76 Hearing Ti-__.scripts March 25, 1999 - Board of Appeals and in the millwork shop at that particular time when I, we purchased Reeve Lumber, Larry's son David was in the shop. He manufactured doors, windows, custom windows and doors, and also manufactured saw horses. But, what it was, it was all for a millwork operation, and when we purchased the property in 83, David stayed on and ran the shop and then eventually had left and we engaged the services of John Rose, and John Rose continued on in that same fashion. One of the reasons of, or the reasons for using the shop is we were recycling lumber. And when I say recycling lumber, we were manufacturing cedar pickets out of cedar boards that had weathered and had no real value so we started to make fences, saw horses and continued on doing that till we sold the business. And then, Riverhead Building Supply - who bought the other yards, we didn't have one out by, just to remind Mr. Ham, we did have a lumberyard out in Montauk and we were able to sell that to a lumber company, Watermill True Value out on the South Shore. We engaged the services of Bob Celic. Also Andy Stype. We listed it with Century 21, Bookmiller. They were the people who had the listing on the property. We had the property for, I guess it was a year that it was on the market and people were saying that maybe we were too high. We had Andy, so we engaged the services of Andy Stype. He did an appraisal for us and that was when we were trying and the property at that time was all, it was listed at the $525,000. We've had offers for it. One offer when it was from a local developer. One offer was $275,000 and his reasoning for it was, it was going to take time $100,000 to demolish the buildings. We entertained it but it wasn't the right offer for our shareholders. It came back a year later and the price went to $325,000. All the time during this time we were actively trying to sell the yard and it was listed. I also had served as President of the Long Island Lumber Association, and in 1993 also President of the North East Retail Lumber Association. The reason that Mr. Smith is here, in my, on my own, I was trying to get this property sold to other lumberyards. Not to anybody big, but because it fits being a "mom and pop" type of lumberyard and that's what Mr. Reeve started it for, and we at Southampton Lumber when we were selling lumber were basically that type of operation. I don't know, it's like telling a story where do I go from here? Can I answer any of your questions, if you have any questions? CHAIRMAN GOEHRINGER: Anybody have any questions of this gentlemen? I think not. Thank you, Sir. MR. HAM: Mr. Smith, if you would like to know how he intends to operate should the deal go through this year, and I think he has a statement which might be helpful to you. Dennis Smith. CHAIRMAN GOEHRINGER: Mr. Smith, the same situation. You solemnly swear the information you're about to give us is the truth to the best of your knowledge? MR. SMITH: I do. Page 77 Hearing Ti 1cripts March 25, 1999 - Board of Appeals CHAIRMAN GOEHRINGER: Thank you, MR. SMITH: Good evening, ladies and gentlemen and Members of the Zoning Board Association. My name is Denis G. Smith and I am the Contract Vendee of the premises which is the subject of this application. My purpose for speaking to you tonight is to show you that the type of business I hope to operate is basically the same as the Reeve lumberyard was prior. For over 20 years I have owned and operated a small building supply company: Speonk Lumber Corp. , located at Montauk Highway in Speonk. My present business is bordered on the west by other businesses, and on the south and east by residences. I therefore know the concerns of the surrounding neighbors with the business such as this. My present business is a family business and I hope to continue this business at the Mattituck location. My son who has worked for many years and who is now attending college to obtain a Bachelor Degree from the University of Massachusetts, in building material and lumber science, will be managing the operation. We intend to operate these premises the same way Larry Reeve operated his business. It's going to be a family business, focusing on retail lumber in the community. It is not and I stress, it's not going to be a Home Depot. The business that I propose will be selling lumber, building materials, tools, hardware and millwork. The millwork shop currently on the premises will continue in operation. I am not proposing any new construction at the premises. I intend cosmetic work only to restore the buildings and make them more presentable. I intend to paint the buildings and to but new roots on them so they'll be an asset to the community here. CHAIRMAN GOEHRINGER: While you're standing there, anybody have questions of Mr. Smith? MEMBER DINIZIO: No. CHAIRMAN GOEHRINGER: My only question to is, are you anticipating outside storage for the lumber? MR. SMITH: Yes. CHAIRMAN GOEHRINGER: OK. Would all the lumber be outside or would it be just CCA? Do you know? MR. SMITH: It would be some dimensional and some CCA as it was in the past. CHAIRMAN GOEHRINGER: OK, thank you Sir. Mr. Ham, we're do we go from here? Anything else? MR. HAM: Well I hope that you'll, I have other arguments in the, I don't want to take your time now, in the Memorandum - CHAIRMAN GOEHRINGER: And you'll fax over the other information that we want? Page 78 Hearing Tim---cripts March 25, 1999 ® Board of Appeals MR. HAM: And I'll fax the cases and that. CHAIRMAN G®EHRINGER: OK, thank you. Anybody else like to speak in favor? Anybody like to speak against? Yes ma'am. MRS. CARDINALE: My name is Donielle Cardinale. I own and reside at the home on the corner of Wickham Avenue and Main Road. The existing site has not been in use as a lumberyard for a number of years. They have mentioned that it has been used as a woodworking mill. I've lived in my home for two years and I've failed to see it used that way. If it is, I would question how actively or how much it's been continued. Either way I think there's no question that a small woodworking shop and a lumberyard is quite a difference in the amount of traffic which is my main concern, or one of my two main concerns. It has been abandoned as a lumberyard for a number of years and in their seeking this variance, they've basically admitted that and the other thing is they would be forced to prove is that it is not, that its use couldn't be, couldn't be profitable for any other use, and I don't necessarily think that's true judging from the fact that there are plenty of other Hamlet Zone Businesses surrounding it that have been able to be successful and many of them have been there for many years. I'd like to also point out that the location on the Main Road and the establishment of the lumberyard creates a track burden which is apparently not contemplated by the Hamlet Business District. The last time it was used as a lumberyard was several years ago when our traffic conditions here were quite different. I don't think anyone could argue the fact that we've seen a much greater influx of traffic coming on to the North Fork with the birth of the vintage and then everything else. I am in a tossed type business. I own a restaurant and I definitely seen even the two years that we've been in business that there is definitely a growth there and that affects the traffic in the area. We a, while we were moving into the home saw three accidents in a period of two months. It's a very tough location there on the Main Road. I have difficulty pulling in and out of my driveway as it is. With the exiting and entering of large trucks delivering lumber and what not I think that would definitely cause a burden that would have to be looked into and some investigation done as to the impact on the community. Also, as I stated earlier, they're trying to establish or would, would have the burden of establishing that none of the business, the Hamlet Business Zone businesses could affectively be run there. Some of those include, retail stores, restaurant, personal service shops, meeting shops, meeting halls, business professional and government offices. I think it would be very hard to prove that any of those couldn't work. They're saying that they have not had any reasonable offers other than this one lumberyard. I think the reason maybe being that the market doesn't really, many, may people don't feel the market could bear the burden of another lumberyard with four on the North Fork now and Home Depot 'going in. Value basically calls the willingness of the buyer on what they feel the value is and that reason probably being that they do foresee the need to make a lot of changes in order to make that location work. I believe the opening of the lumberyard with outside storage and Page 79 Hearing Ti ;cripts March 25, 1999 - Board of Appeals substantial truck traffic in Hamlet Business District would change the character of the surrounding area and should not be permitted and that's my statement. CHAIRMAN GOEHRINGER: Thank you. Anybody else? Mr. Ham? MR. HAM: May I come up? Just to reiterate even that minimal activity we believe would preserve the use. But, just keep in mind, that this is a corporation that has filed a Certificate of Dissolution. This is not a piece of property that we are holding looking for some use for it. We are trying to liquidate the company trying to find a, protect the shareholders to the extent that we can to find a reasonable offer and we've been trying for five years now and the only, the only people that seem to be interested are another lumberyard because and Mr. Stype points out in his letter and I'd be happy to provide the opponent with a copy of his letter, that the very high cost of conversion. Yes, we freely admit that if this property were standing there without any of the improvements on it, it would be, we could not carry an argument that the lumberyard use would be appropriate even under that circumstance. But, we have to look at the whole totality here. We're trying to liquidate the company and we have existing buildings that are there. That someone would not pay much money for that as, if they were going to put something like a retail, or small retail store, or restaurant, or another permitted use because they would incur the buildings are useless to them. The real estate improvements are not well suited for the HB Zone District. I just want to make those points. Thank you. CHAIRMAN GOEHRINGER: Thank you. Anybody else like to speak? Seeing no hands I'll make a motion closing the hearing reserving decision until later. MEMBER COLLINS: Second. MEMBER TORTORA: You're going to close it? CHAIRMAN GOEHRINGER: Sure. Why you want to leave it open? MEMBER TORTORA: No, I just wondered. BOARD SECRETARY KOWALSKI: Go to the the Board? All in favor? Motion carried. See Minutes for Resolution. End of hearing. 5 C ATTORNEYS AND COUNSELORS AT LAW 45 HAMPTON ROAD SOUTHAMPTON, NEW YORK 11968 PHILIP B. MATTHEWS (1912.1992) 516-283-2400 STEPHEN L. HAM, III FACSIMILE 516-287-1076 e-mail:Matthamesq@aol.com BAHBAHA T. HAM March 25, 1999 MEMORANDUM TO: Zoning Board of Appeals of the Town of Southold FROM: Stephen L. Ham, III RE: Application of Southampton Lumber Corporation (Application No. 4668-SCTM No. 1000-114.00-11.00-024.003) This Memorandum is submitted in support of the Application of Southampton Lumber Corporation (Application No. 4668) for a variance to reinstate the use of lumber yard and woodworking business at premises at 13650 Main Road in Mattituck (SCTM No. 1000-114.00-11.00-024.003). FACTS: The Building Inspector denied Southampton Lumber Corporation's application for a new Certificate of Occupancy to update the Certificate of Occupancy it obtained in 1983 (No. Z12023) that covered the use of the subject premises for a lumber and woodworking business. In doing so, the Inspector cited Section 100-241.G of the Southold Town Zoning Code (the "Code") which provides that a nonconforming use shall 1 not be permitted without a variance when that use has been discontinued for a period of more than two (2) years. The subject premises are located in a HB Zone under the Code in which, according to the Building Inspector, a lumber and woodworking business is not a permitted use. Copies of the 1983 Certificate of Occupancy and the Notice of Disapproval are attached hereto as Exhibits A and B, respectively. (QUESTIONS PRESENTED: I. Was the Building Inspector correct in refusing to issue an updated Certificate of Occupancy by reason of discontinuance of the lumber yard use in the HB Zone? I I. Even if the Building Inspector was correct in refusing to issue an updated Certificate of Occupancy, do the facts support the granting of a variance in this instance? CONCLUSIONS: I. No. In refusing to issue the updated Certificate of Occupancy, the Building Inspector erred in interpreting the Code and applicable New York case law relative to the issue of abandonment of nonconforming uses. II. Yes. Even if the Building Inspector correctly interpreted the Code and applicable law in denying the application for an updated Certificate of Occupancy, the facts of this case warrant the granting of a variance. DISCUSSION: I. Interpretation of Southold Town Zoning Code and Applicable Law Submitted with the application for the updated Certificate of Occupancy was the affidavit of John A. Rose, a copy of which is attached hereto as Exhibit C. As clearly stated by Mr. Rose in his affidavit, he has made continuous use of the subject premises 2 for a woodworking business since 1989, selling primarily to Southampton Lumber Corporation prior to August 1993 and primarily to Riverhead Building Supply Corp. since that time. (Southampton Lumber ceased its going business in August 1993 when it sold its principal yards in Southampton and East Hampton to Riverhead Building Supply.) In cases where the New York courts have been called upon to interpret local ordinance provisions on the discontinuance or abandonment of nonconforming uses, those courts have consistently held that a nonconforming use cannot be deemed to be discontinued if the prior use is continued to some extent, even if it is only continued to a very limited extent. Stated another way, the courts have prevented municipalities from terminating a nonconforming use unless they could prove that the entire nonconforming use had been discontinued and,-where the entire use had not been discontinued, those portions that had been discontinued were permitted to be restored. Matter of Marzella v. Munroe, 69 N.Y. 2d 967 (1987). In Marzella, the property in question contained a one-family dwelling and a three-family dwelling that were rendered nonconforming by a local zoning ordinance that would have permitted only one two-family dwelling on the property. The one-family dwelling was vacant for fifteen years until a new owner applied for a permit to restore it. New York State's highest court, the Court of Appeals, in ruling in favor of the property owner and against the local zoning board that had affirmed the building inspector's denial of the permit, stated: "Abandonment does not occur unless there has been a complete cessation of the nonconforming use. Here, there was no evidence 3 before the ZBA that the entire nonconforming use had been abandoned. Thus, the petition was properly granted and the determination of ZBA annulled." 69 N.Y. 2d at 968. (Citations omitted). The local ordinance in Marzella, like Section 100-241.G of the Code, prohibited the resumption of the nonconforming use that had been abandoned and gave no indication that anything less than complete discontinuance of the nonconforming use would suffice to surrender it. Moreover, even though one use had been dormant for fifteen years, continuance of another nonconforming use on the same property was sufficient to permit the resumption of the dormant use. In Town of Islip v. P.B.S. Marina, Inc., 133 A.D. 2nd 81 (2d Dept. 1987), interpreting an ordinance similar to Section 100-241.G of the Code, the Appellate Division found that the municipality had failed to prove that there was a termination through discontinuance of a preexisting nonconforming use as a marina even though only one mooring in the marina had actually been rented and occupied during a two-year lapse in full operations. (The Islip time period for abandonment was only "one year or more.") A foundry was the use in Baml Realty. Inc. v. State of New York, 35 A.D. 2d 857 (3rd Dept. 1970). Apparently, only a small portion of the operations was maintained at the subject premises after the operating corporation moved its manufacturing to a new location. The Appellate Division, interpreting the Peekskill ordinance which provided that a nonconforming use shall not be re-established if discontinued for over one year, noted that "discontinuance connotes a complete cessation so that a minimal nonconforming function, of itself, would not constitute an abandonment". 35 A.D. 2d at 857. (Emphasis 4 added.) The recent Court of Appeals decision in Toys "R" Us v. Silva, 89 N.Y. 2d 411 (1996), distinguishes the foregoing cases from the one before it which involved the interpretation of a New York City ordinance that terminated nonconforming uses when there was a discontinuance for a two-year period of"the active operation of substantially all the nonconforming uses" (emphasis added). In that case, due to the s ecific lan-guage in the ordinance, the Court upheld the original determination of the local board that, despite some minimal activity, there had been a discontinuance for the requisite two-year period since the activity did not rise to the level required by the ordinance to prevent abandonment. The decision in Toys "R" Us gives us a clear picture of the current law of abandonment of nonconforming use in the State of New York. Where the local ordinance, like Section 100-241.G of the Code, gives no indication that anything less than a complete discontinuance of the entire nonconforming use is required for abandonment, then some continuance of that use, even a minimal continuance, will preserve the use and prevent the municipality from prohibiting the resumption of that use to its former degree. Only where, as in Toys "R" Us, the ordinance in question specifies a standard whereby less than a complete discontinuance will result in the loss of a nonconforming use will minimal nonconforming activities failing short of that standard be insufficient to preserve the use. Applying the Code and the case law to the facts of the instant situation, it is clear that the nonconforming use permitted in Certificate of Occupancy No. Z12023 was not"discontinued" under Section 100-241.G of the Code. That Section of the Code does 5 not provide that anything less than a complete discontinuance of the entire nonconforming use would result in an abandonment of that use. Therefore, the woodworking business that has continued at the site, albeit a minimal activity, provides a continuity of use that should allow the lumber yard use to be reinstated in the same manner that the second dwelling use in Marzella was permitted to be reinstated after a fifteen-year period during which it was not used at all. Finally, as the Court of Appeals reminds us in Toys "R" Us, zoning restrictions, being in derogation of common law property rights, should be strictly construed, with any ambiguity being resolved in favor of the property owner (citing Allen v. Adami, 39 N.Y. 2d 275 (1976), at 89 N.Y. 2d 421). Although Section 100-241.G of the Code does not even-remotely suggest that discontinuance of a-nonconforming use will result from anything less than a complete discontinuance of the entire use, thereby allowing the continuous woodworking use to support the restoration of the lumber yard use, to the extent that Section may seem to be ambiguous as applied to the facts in the instant situation, any such ambiguity must be resolved in favor of the applicant and its request for the issuance of an updated Certificate of Occupancy restoring the use of lumber yard and woodworking business. II. Argument for Variance Based on the analysis presented in Section I above, it was wrong for the Building Department to refuse the issuance of an updated Certificate of Occupancy to which Southampton Lumber Corporation was entitled as a matter of right. Even if your Board agrees with the Building Department's interpretation of the Code, however, the facts 6 of this case warrant your granting of a variance to restore the nonconforming uses. Denial of a variance would result in a hardship to the owner that is not offset by any overriding public benefit. The business will be operated in the same manner as it was by Reeve Lumber from the 1940's until 1983 and by Southampton Lumber from 1983 until 1993. Except for the last five and one-half years, the site has been used for the same purpose as the variance would permit so there would be no significant change to the neighborhood. The business would essentially be a "retail store", a permitted use in the HB Zone. The property, with two large storage buildings and one office/store, is particularly suited to a retail building materials business but not to other types of retail businesses where the storage buildings would be of little utility. Indeed, little interest has been shown in the property by other types of businesses even though it has been on the market for over five years. The problem in finding a suitable buyer for the property has resulted in a substantial delay in completing the liquidation of Southampton Lumber Corporation for the benefit of its some two hundred local shareholders. A. Future Use; Character of Neighborhood. As the testimony of Dennis Smith will reveal, the prospective purchaser of the property, Speonk Lumber Corp., intends to operate the business in the same manner as it was operated from the 1940's until it closed in 1993. A building materials business has historically been on this site so there should be little impact to the neighborhood. If anything, that impact will be positive since the new owner will make necessary repairs and there will be much more activity at the site. As indicated in the letter of appraiser Andrew Stype, a copy of which is attached hereto as Exhibit D, the lumber yard use is "very compatible" with adjoining 7 properties. Access to and from the site should not pose traffic problems. Moreover, an active operation would enhance market values that might otherwise be diminished if the deterioration of the structures is allowed to continue. B. Type of Use. As the testimony of Mr. Smith will reveal, the business he intends to conduct at the site will essentially be a retail operation. Indeed, it would not be unreasonable to argue that the intended use is actually consistent with the permitted use of"retail stores" in the HB Zone District. See Code Section 100-91.A.(6). (The Building Inspector ruled that, since "building material storage and sale" is mentioned as a permitted use in the B Zone District (Code Section 100-101.A.(3)), it must be prohibited in the HB Zone District because it is not mentioned as a permitted use in Code Section 100-91.A.) C. Suitability of Use. As indicated in the letter from Mr. Stype, a real estate appraiser with Andrew Stype Realty, Inc., the buildings now on the site are not well suited to any use permitted in the HB Zone. The existing buildings can be feasibly used only for large yard businesses. To accommodate the uses permitted in the HB Zone District, extensive renovations would be necessary. D. Lack of Marketability. The unsuitability of the existing._buildings for uses permitted in the HB Zone is undoubtedly a contributing factor to the inability of Southampton Lumber Corporation to find a buyer until now. The transaction makes economic sense to Speonk Lumber because it will operate the same business as Southampton Lumber conducted from 1983-1993 and Reeve Lumber conducted prior to that period. While the new owner will have to make repairs and perhaps some renovations, it will not have to make any substantial structural changes or incur extensive 8 conversion expenses. As the testimony of Southampton Lumber President, H. Merrill Becker, Jr., will disclose, although the property has been listed for sale for more than five years, until the current offer of Speonk Lumber Corp. was made, there were no serious offers even at prices well below the asking price. As Mr. Stype's letter reveals, the property was listed with his office in 1995 at a price of $525,000. Very little interest was expressed by prospective purchasers, in large part due to the high cost of conversion to a use other than a lumber yard or similar use. Speonk Lumber Corp. has agreed to pay $430,000 for the property provided Southampton Lumber Corporation can provide it with a current Certificate of Occupancy for the formerly accepted uses. That price is well below the asking price and even further below the market value indirectly imputed to the property by the Tax Assessor.' Moreover, Southampton Lumber is able to realize that much reduced price only because the prospective purchaser will not have to incur substantial conversion expenses. E. Other Factors. Southampton Lumber Corporation is owned by about two hundred shareholders, most of whom live on Eastern Long Island. The Mattituck property is the last major asset that must be liquidated so that the Corporation can make a final distribution to those shareholders and complete the winding up of its affairs. Speonk Lumber Corp. is also a closely held corporation owned by East End residents. This is not a case where the benefits of the transaction will be realized by a large national ' The property is carried on the tax rolls at a total assessment of$19,000. The current equalization rate is 2.9% which indicates a market value of about $655,000 ($19,000/.029). 9 chain like Home Depot. It is the quintessential local deal that should prove beneficial to the residents of Mattituck and the North Fork as well as the shareholders of the buying and selling corporations. CONCLUSION Your Board does not even have to reach a decision on the variance request if it applies New York State case law to the pertinent provisions of the Southold Town Zoning Code and determines that the nonconforming use at the subject premises was not legally discontinued. Even if you do not so rule, however, the variance requested should be granted for the reasons set forth above and in the interests of justice. S.L.H., III } 10 1 ` r ' 1 1 { 1 r 1 - � i o ' I 1 , t Exhibit A -MAR 24 '99 12:07PM SOUTHOI_D TOWN HALL 516 765 1823 P.3 TOWN OF SOMOLD BUILDING DEPARTMENT SOUTHOLD, N.Y. NOTICE OF DISAPPROVAL DATE: _.1.A 13,/99 .. . . . ... .... ... To S®athamMp. umben C rp:. . . . .. ..... . . .. . 3PHaa"Stetona�oad L Ham, III.. ..... .. .. . ... .. . Pw romAXpp.1q.i i goo......... ........ ... PLLASE TAKE NOTICE that your application dated . I}egephPr..1.h .. . .... application for re-institute Lumber Yard use in HE Zone to ....... ..... ...... ... ..... .... .. . . ... .......... .......... ..... at Location of Property ..1365Q...... Maig.Rd:............. 1�5�kue1S............... . House No. Street Hamlet Countp'Tix Hap No. 1000 - Section . 111....... B .11......... LOT 24.3... ...... Subdivision .......... ..................... Filed Map No. .........Lot jJo. ....... is returned herewith and disapproved on the following grounds Rur:uant too Art Section 100-241C " Whenever a non-conforming use of a building or premises has ..............a ..... ........ .............. ............ ..................o.s e•........... been discontinued for a period of more than two (2) years or has been changed to a ...... ........... ...... .... . . .. .......... ...... .o . . .........................w............ higher classification or to a conforming use, anything in this Article to the ............................ .. ......................................0................... contrary notwithscanding, the acnconfafting use of such building or premise e o......a............0............................................0.............o..e e e.e.e. shall no longer be permitted unless a variance therefore shall nave been granted .**a**................................................. ..i•....o...................... ..•. by the Board of Appeals." ...............a.........0.......a...a................0...........a.....s.......... .e.•...........•...a.....•...............a...............a............................... .....s e.. ................ ......... ..... .. . .. .......... .........o........................• a.#.................•a . ....... ....... ..... .................. .....................a .a... ... .............. ..... . ........ .... ... . ........ .. . . .... .......................... . .. . . .... ............ .. .......... . . s .• .,, • ............... EDILDIN SSFECTOR R® 1/80 S .,. •i°i;.f.`� ;•,s$i :t. ��� .,' Y• tiF A -�,' - '�' ' a�. __.('�' •:y'w1.. �:l�.:ig a;�Y� ��` {i:_.�%;�.�� /. ,��.L s_�_.. ;t�f'�(( Zp};.•K'�:'r.• .� M i�!y''r](y(..$.��:., .�., ', - •5 '• .:.`� .�^4Y=,�,;;; „ . :1 -i`jj �If3V YM7'�-j�"�, �+�- • .�-. :.��p.`�. .I.6� 1� .. '��'� '_S'_�• J.. ;'t _ � l!�^:fit.: ,,V'i%'•.1 �1 �L^� Rom.v ',;:t�"'r g•y l�'--•.� � 01h '�y'.�%y 1. ��•, �,!,�,•y"-.L�/ ...-. , .. ,ye4�-i',:� -.... ,: 3� -s � - - ',�: l�'? l'�X$'>�k'�i•.." ,, `"'`7%r•�':r ', .y.';t�,.q`:-�' Tr.�' FORM NO.4 TOWN OF SOUTHOLD BUILDING DEPARTMENT Office of the Building Inspector Town Hall Southold, N.Y. Certificate Of Occupancy No.Z'12023 . . . . . . . . . . Date . . . .Oct.ober. �9 . . . . . . . . . . . . . . . .. 1983. THIS CERTIFIES that the building s . . (3.), , , , , a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Location of Property 13650 Main Road . . Mattituck House 11%0. Street � � � � �Hamler County Tax Map No. 1000 Section , 1.1.4 , . . , ,Block . . 1.1. . . . . . . . . . .Lot Subdivision . . . . .X . . . . . . . . . . . . . . . . . . . . . . .Filed Map No. X. . . . . .Lot No. . . . . . . . . . . requirements for a ' C Light Indisutrial Zone , prior to conforms substantially to the Appliesfiorr fvr-&wilding-Perm heretofora-Med-irr llHT-offrce-dated Certificate of Occupancy Apr . . ,2 3, , , , , , , , . . , 19 5?.pursuant to which BuiMing-Permit No. . . . .Z 12 0 2 3. . . . . . . . . . dated . . , , , 0 c t o b e r .2 9 . . . . . . . . , , 19 8 3. ,was issued, and conforms to all of the requirements of the applicable provisions of the law. The occupancy for which this certificate is issued is . . . . . . . . . ,a. lumber and. woodworking business . . . . , . . . . The certificate is issued to . . . . . . REEVE. LUMBER & WOODWORKING CO . , INC . . (owner,lassaeiffener�tl . . . . . . . . . . . . . . . . . . . . . of the aforesaid building. Suffolk County Department of Health Approval . . . .r14. r q 9 r d, , , , , , , , , , , , , , , , , , , , , , , , , , , , UNDERWRITERS CERTIFICATE NO. . . . . . . . . . . .ri.lr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . !� �. . . . . . . . . . . . . !.` . . . . . . . . . . Building Inspector Rev.1/81 ', • a W 1 1 i Exhibit C MAR 24 '99 12*.07PM SOUTHO!_D TOWN HALL 516 765 1823 P.2 AFF196VL STATE OF NEW YORK) ss: COUNTY OF UFFOLK) JOHN A. ROSE, being duly sworn, deposes and says: 1. I am over the age of eighteen years and reside at 1705 Laurelwood ®rive, Laurel, New York 11946. 2. From approximately 1959 to the present, I have been engaged in a woodworking business at the Mattituck yard of the Southampton Lumber Corporation (formerly Reeve Lumber) at 13650 Main Road in Mattituck, Town of Southold. 3. My business consists.of the manufacturing of such items as chairs, saw horses, fencing and some millwork. My principal customer prior to August 199 was Southampton Lumber Corporation and since that time my principal customer has been Riverhead Building Supply Corp.. 4. My business use of the premises at 13650 Wain Road in Mattituck for the foregoing purposes has been continuous and uninterrupted since 1969. 5. 1 make this affidavit knowing that the Building Inspector of the Town of Southold will rely on the truthfulness hereof in processing the application of the Southampton Lumber Corporation for an updated Certificate of Occupancy covering the premises at 13650 Main Road in Mattituck. ® A. Rose Subscribed and Sw® T® Before me this day of January, 1999 e . 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I ,; j w,,_." 9;I T I , ., T� I , ,� x.4, I1. �,,�.. ,,?lI, .-V i � -I "1I* W f• *i­ ^t,. x- . " ,.. t - IY,1,1. ,, ,rl . 1 , ,-" ,.��,iM1;,n I ,If . - i� . -- , t- ��" �- 1T � �S �N I; 4;4",,. , • 1 ,",., ,�, 3I ... I� "I il,.- I .v"', , t-, ,L r,o-,,,te I , r--,I rf` ..I; � � ,,. I ,1 3 1 1 :,'.i 1.11 , �, i't e. -1 1. f � -- . I : -- � lll�!1�1�I I I 11 i I !! �. I...,�,i i . .I Z i.�i 'I'm I . q ;: : "r,' , t, I * " * ["I �Ot � , , I - 11 1-1 q W, "n , .1 11 � ., i - I I mw ,0, . ­ , -- .. - - 11- 1 I -, _ - ' ' , , ' '- I I%— ,� , -, -,- -,,-- -�--.,.J,.,,I , , - -, -,---�,,��� ----,-�,� - " .,�11— , - " ­..." -�.­ " � ---, .1�­7­.­­ -.-­�-- " - -,- ----- rw4lw-1114z .,­ ­ ,-..---,,." —, --- - ­�.� ­�t�,­-­��­ I —,­-.L:�----­i% � ­ �. Mar-24-99 05:38P P_Ol Andrew Stype Realty, Inc. 12985 MAIN ROAD, P.O. BOX 63, MATTITUCK, NEW YORK 11952 (516) 298-8760 FAX (516) 298.5779 moo l.fil�► 3I24199 Mr. Stephen I.. Hamm, III - Esquire Matthews & Hamm 45 Hampton Road Southampton, NY 1968 Re:Southampton Lumber Corp - Mattituck Yard SCTM 1000-114-11-24.3 Dear Mr. Hamm: The purpose of this letter is to provide a preliminary appraisal report of commercial property owned by the Southampton Lumber Corp. (formerly Reeve Lumber) on Main Road, Mattituck, N.Y. 11952. The instructions are to review the current hamlet business zoning uses and examine if they are compatible with the current buildings. A written, narrative report will follow shortly. I am very familiar with the Southampton Lumber property. On 1994 1 provided a brief, summary letter of opinion regarding market value after personally inspecting the site and buildings. On 1995 my sales office division received a open listing. The offering price was $ 525,000. at that time. There are three large.buildings used for offices and lumber storage and woodworking. The total building gross area is approximately 20,000 sq.'. We have shown the property very few times with no serious offers. The most interest we received was from a local woodworker to build wood sheds - however, he was only interested in a lease agreement and from a local boat dealer - who declined to offer on the property after receiving exorbitant cost estimates toxenovate the buildings. The boat dealer also would have to apply for a use change to allow his business on this property. It is obvious the current buildings can only be functionally used for Iarge yard business's such as warehouse, wholesale operations and contractor's yards. The subject's buildings are not only very large but are not compatible for most hamlet business uses such as offices, retail stores, restaurants, theaters, etc. The current buildings would have to be totally renovated to accommodate these uses. Mar%r-24-99 05: 3E3P P.02 Southampton Lumber - page 2 The boat dealer discussed previously was receiving costs of approximately $20. to $30. a square foot to renovate all buildings to a necessary level to operate their business effectively. This cost equates to a approximate estimate of$ 500,000. only for renovations without consideration for the purchase price. A lumberyard or wholesale or contractor's yard would be able to function effectively with the current buildings as there operations are much more compatible with the type of structures. The former use as a lumberyard was very compatible with the adjoining properties. There is a restaurant and retail strip center to the west and a public library and church to the cast. The access to the subject from the Main Road lends itself to easy access from trucks and deliveries. Their hours of operation are normal to area businesses and would not have a adverse affect on market value. A lumberyard operation would be a obvious choice other than the current deterioration that detracts from local area market value. Thank you. e tr ly yo s ADS:eu 6d w"St s , A Page 3 — Minutes March 4, 1999 Special ME g Southold Town Board of Appeals D On motion by Chairman Goehringer, seconded by Member Tortora, it was RESOLVED, to authorize advertisement of the following applications for public hearings to be held THURSDAY, MARCH 25, 1999 commencing at 6:30 pm: 1. Appl. No. 4660.It - EMPIRE GAS AND CONVENIENCE SALES STATION. Main Road, Greenport. "B General Business" Zone. Special Exception (pending receipt of map and wetlands information). 2. Appl. No. 4662.jd — MOTLEY and RUSHIN. Possible subdivision. Lot size variances, each with an existing dwelling building; also request for access over proposed Lot #2 instead of access from town street. (Await PB review/input regarding new project.) 3. Appl. No. 4663.It— FRANK MIRCHEL. Rear yard setback. Addition at Yennecott Dr, Southold. 4. Appl. No. 4664.Ic — LUSTGARTEN/TAVANO. Lot coverage and frontyard variances. Old Orchard Lane, East Marion. New dwelling. 5. Appl. No. 4666.It— JOYCE BARRY. Garage location front yard at West Cove Road, Cutchogue. 6. Appl. No. 4667 and 4670.Ic - J. SICA. Front yard variance. Bulkhead setback variance. ROW off s/s Main Road, East Marion. 7. Appl. No. 4668.jd — SOUTHAMPTON LUMBER. Pending reviews. Main Road, Mattituck. 8. Appl. No. 4669.It - GERALDINE FEREND. Lot Waiver, Cutchogue. 9. Appl. No. 4671 — HENRY L. FERGUSON MUSEUM. Nonconforming use. Proposed extension of building. Fishers Island. 10. Carryover from 2/23. Appl. No. 4655 —J. BOYLE AND HANDS FUEL CO., Main Road, Orient. Variance to allow use and possible merger of a strip of Boyle land for Hands Service Station parking or storage area (existing). VOTE OF THE BOARD: AYES: MEMBERS GOEHRINGER, DINIZIO, TORTORA, COLLINS. (Member Horning of Fishers Island was absent.) This Resolution was duly adopted (4-0). Fat ELIZABETH A.NEVILLE �aa �� Town Hall, 53095 Main Road TOWN CLERK P.O. Box 1179 &4j Southold,New York 11971 REGISTRAR OF VITAL STATISTICS evPIPT Fax (516) 765-1823 MARRIAGE OFFICER Telephone (516) 765-1800 RECORDS MANAGEMENT OFFICER ®1 ��® P FREEDOM OF INFORMATION OFFICER OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD TO: Southold Town Zoning Board of Appeals FROM: Elizabeth A. Neville DATED: February 11 1999 RE: Zoning Appeal No. 4668 - Southampton Lumber Corporation Transmitted herewith is Zoning Board Of Appeals Application 4668 - Southampton Lumber Corporation. Also included is Notice Of Disapproval, Copy of Survey, Z.B.A. Questionnaire, Applicant Transactional Disclosure Form and Short Environmental Assessment Form. i MATTHEWS & HAM ATTORNEYS AND COUNSELORS AT LAW. , pl 45 HAMPTON ROAD SOUTHAMPTON, NEW 1'ORK 11968 "••�� PHILIP B.1992 THEWS 516-283-2400 ADS STEPHEN L. HAM, III FACSIMILE 516-287-1076 e-mail:Matthamesq@aol.com ' BAHHAHA T. HAM February 5, 1999 Zoning Board of Appeals Town of Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, NY 11971 Re: Application of Southampton Lumber Corporation SCTM No. 1000-114-11-24.3 Dear Board Members: In connection with the referenced application, I have enclosed the following: 1. Applicant Transactional Disclosure Form, signed by me as Vice President of the owner. 2. Copy of Notice of Disapproval, dated January 13, 1999. 3. Appeal from Decision of Building Inspector, duly sworn to by me, as Vice President of the owner. 4. Z.B.A. Questionnaire, signed by me as Vice President of the owner. 5. Short Environmental Assessment Form, signed by me as Vice President of the owner. 6. Seven prints of a survey of the premises prepared by Joseph A. Ingegno, dated November 30, 1998. 7. My check to the Southold Town Clerk in the amount of$400. Y Zoning Board of Appeals Page 2 February 5, 1999 Please review the enclosed and give me a call if you require any further information, documentation or payment before this application can be placed on your calendar for a public hearing. Thank you for your attention to this matter. Sincerely, Stephen L. Ham, III Enclosures MATTHEWS & HAM ATTORNEYS AND GOUNSELLORSAT LAW 45 HAMPTON ROAD SOUTHAMPTON,N.Y. 11968 PHILI_P B.MATTHEWS - (1912-1992) 510-283-2400 STEPHEN L HAM,III TELECOPIER 516-287-1076 BARBARA T.HAM January 11, 1999 Mr. Edward Forrester Town of Southold Building Department P. O. Box 1179 Southold, NY 11971 Re: Application for Pre-CO for Southampton Lumber Corporation Dear Ed: In connection with the application for the updated CO for the Mattituck yard of Southampton Lumber Corp., I have enclosed the affidavit of John A. Rose who has been operating a woodworking business on the premises continuously since 1989. 1 would appreciate it if you would issue the updated CO I applied for but, if you are taking the position that the lumber yard use was abandoned, then please provide me with whatever form of disapproval I will need in order to apply to the Board of Appeals. Sincerely, ��z_ 4� Stephen L. Ham, III Enclosure AFFIDAVIT STATE OF NEW YORK) ss: COUNTY OF SUFFOLK) JOHN A. ROSE, being duly sworn, deposes and says: 1. I am over the age of eighteen years and reside at 1705 Laurelwood Drive, Laurel, New York 11948. 2. From approximately 1989 to the present, I have been engaged in a woodworking business at the Mattituck yard of the Southampton Lumber Corporation (formerly Reeve Lumber) at 13650 Main Road in Mattituck, Town of Southold. 3. My business consists of the manufacturing of such items as chairs, saw horses, fencing and some millwork. My principal customer prior to August 1993 was Southampton Lumber Corporation and since that time my principal customer has been Riverhead Building Supply Corp.. 4. My business use of the premises at 13650 Main Road in Mattituck for the foregoing purposes has been continuous and uninterrupted since 1989. 5. 1 make this affidavit knowing that the Building Inspector of the Town of Southold will rely on the truthfulness hereof in processing the application of the Southampton Lumber Corporation for an updated Certificate of Occupancy covering the premises at 13650 Main Road in Mattituck. A'Q-Q o A. Rose Subscribed and Sworn To Before me this day of January, 1999 `Notary Public MARIE A.WOODS Notary Public,State of New York No.01 W05031860 O.uafified in Suffolk Ceunky My commisdon F.xp a MATTHEWS & HAM ATTORNEYS AND COUNSELLORS AT LAW 45 HAMPTON ROAD SOUTHAMPTON,N.Y. 11968 PHILIP B.MATTHEWS - (1912-1992) 510-283-2400 STEPHEN L.HAM,III TELEGOPIER 518-287-1076 BARBARA T.HAM December 16, 1998 Mr. Gary Fish, Building Inspector Town of Southold Building Department Town Hall 53095 Main Road P.O. Box 1179 Southold, NY 11971 Re: Application for Updated Certificate of Occupancy for Southampton Lumber Corporation (SCTM No. 1000-114.00-11.00-024.003) Dear Gary: In connection with an application for an updated Certificate of Occupancy for the three buildings used for a lumber and woodworking business on premises owned by Southampton Lumber Corporation and situate at 13650 Main Road, Mattituck, I have enclosed the following: i1 1. Completed Application for Certificate of Occupancy, signed by me. f Check to the Town of Southold in the amount of the $50 application fee. v 3. Copy of Certificate of Occupancy No. Z-12023 covering the three buildings and their use for a lumber and woodworking business. 4. Survey of the subject premises prepared by Joseph A. Ingegno, land surveyor, dated November 30, 1998. Mr. Gary Fish December 16, 1998 Page 2 Please let me know if you need any further information or documentation before you can proceed to have any necessary inspections performed in time to have the CO issued by the end of next week. Sincerely, Stephen L. Ham, III Enclosures Form No. 6 TOWN OF SOUTIIOLD BUILDING DEPARTMENT TOWN HALL 765-1802 APPLICATION FOR CERTIFICATE OF OCCUPANCY �• This application must be filled in by typewriter OR ink and submitted to the building inspector with the following: for new building or new use: 1< Final survey of property with accurate location of all buildings, property lines, streets, and unusual natural or topographic features. 2• Final Approval from Health Dept. of water supply and sewerage-disposal(S-9 form) . 3. Approval of electrical installation from Board of Fire Underwriters. 4. Sworn statement from plumber certifying that the solder used in system contains less than 2/10 of 1% lead. 5. Commercial building, industrial building, multiple residences .and similar buildings and installations, a certificate of Code Compliance from architect or engineer responsible for the building. 6. Submit Planning Board Approval of completed site plan requirements. 3. For existing buildings (prior to April 9, 1957) non-conforming uses, or buildings and "pre-existing" land uses: 1 . Accurate survey of property showing all property lines, streets, building and unusual natural or topographic features. 2. A properly completed application and a consent to inspect signed by the applicant. If a Certificate of Occupancy is denied, the Building Inspector shall state the reasons therefor in writing to the applicant. Fees 1 . Certificate of Occupancy - New dwelling $25.00, Additions to dwelling $25.00, Alterations to dwelling $25.00,.. Swimming pool $25.00, Accessory building $25.00, Additions to accessory building $25.00. Businesses $50.00. 2. Certificate of Occupancy on Pre-existing Building - $100.00 3. Copy of Certificate of Occupancy - $5.00 over 5 years - $10.00 4. Updated Certificate of Occupancy - $50.00 5. Temporary Certificate of Occupancy - Residential $15.00, Commercial $15.00 Date December. 16�m1998eOa0OOe . eOpeOeBSOOOOaa ew Construction. .. . . . . . . . . Old Or Pre-existing Building. . X . . . . . . . . . . . . . .ocation of Property. . . 13650 . . . . . . . . .Main Road . . . ® � � Bse . Oe .Mattituck . . . O House No. Street HamletOeO . Qaa Southampton Lumber Corporation -ewer or Owners of Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ounty Tax Map No 1000, Section. , 11M0 . . . . . .Block. . 11a.00. B . . . . . . .Lot. . .924m003. . . . peBOp . . . ubdivision. . . .NIA. . . . . . . . . . . . . . . . . . . . . . . . . . . . .Filed Map. N/A. . . . . . . .Lot. . .N/A . . . . . . . . . . . . . . . . ermit No. . . . . .N/A. . . . . . .Date Of Permit. . . . .N�A . . , . . . . .Applicant. . .N�A. . . . . . . . . . . . . . . . . . . . . . . e:ilth Dept. Approval. ./A. . . . . . . . . . . . . . . . . . . . .Underwriters Approval. .N/A . . . . . . . . . . . . . . . . . . . . lanning Board Approval. .N/A . . . . . . . . . . . . . . . . . . . equest for: Temporary Certificate. . . . . . . . . . . Final Certicate. . . . . . . . . . . ce Submitted: $. .50.00® OeB . . ® . , . ® e ® . eOBemeOm . . , . . . . . � ��. ` o 0 0 eStephen.L.e Ham, II The N.Y.S. =nviznn.m .tal Quality Review Act ream-=s subw_ssion of this fc=, and an envi:o'nr-ental review will 'je made -.y tniz 'soard he-,:are any action is taken. SHORT nTVT_nC':ME`T.AL ASSESSLffi;iT =oz! INSTRUCTIONS: (a) in order to answer the questions in this short EAF it is assumed that the orenarer will use currently available info=atian concerning t:.a project and —"a likely impacts of t.':e action. it, is not e.Ynected that additional studies, research or at-her investigations will be undertaken, (b) r= any question has been answered Yes the project may be sig- aificant and ccaplated Eavi=orsental Assessment Form is necessary. (c) rf all questions have been answered No it is likely that the _ project is not significant. (d) Environmental Assessment 1. Will project result in a large physical chance to the project site or anysically'altar more than 10 acres of land? es :'X NO 2, will there be a major chance to any unique a-- unusual land fora on the site? Yes X No 3. Will project altar or have a large e==act _n an a-.,=sting body cf water? _Yes X No 4. Will project have a _ootantially large _,.pact on g=--undwatar c•aal==:' _'es X No 5. Wi-ll a;ec= s';• �Wtsr e==ec- cr_-pace =low on ac;acent sites? '•es X No o Will project a=-ec_ anv thzeatened or e.^.gazgarea plant or a=�=al spec-es? _?es X No 7, 'gill project =esu1= S.: a major adverse e:-eq_ an air ua_-_r? Yes X No S. Will nrajec= have a major es=ect on visual har- ac_ar of the cep.:.i:-r or scenic views or vistas known to be port_. to t:=e communit ? es X No 9. Will oroject adve=saiv i--vact anv site or st_act- are of historic, re-historic, or paleantolcgicaL ixnor_anc2 or any site designated as a crizical environmental area by a local agency? _'es X No 10. Will project have a major effect on or fat.jre recreational amoortunities? 'res X No U. Will project result in major traffic problems or cause a major effect to existing trarspor=at'-on Svstem5? - Yes X NO 12. Will project regularly' cause objectionable odors, noise, glare, vibrs=_cn, or electrical disz=b- ance as a result .,_ t:.a _roject's operation? Yes X No ' Will pro;ec= have aiy impact on public Neal_h or saS_ty? Yes X No 14. will project affec= the es'-sting ccsiaiu.^.i`y cv di-ectly causinc a _cwth in permanent popula- tion of =cre than " mercyn= aver a one-yea- Yes X No aer_od or have a -a;or necacive e_=ac= an c:.a=acta: C= tna or ne4 -crnocd? there ?L:hl_- controversy cancer n-• �-^jest? __as X .Jc ?reparer's Signat..r_ 2e==esenti:c: Southampton Lumber Corporation �z-_: 1/26/99 a. . �o_ e J and a.'1`_+ C�== �. Please disc cse n _rcividuals- (arid eat'---ies) having a ' D'"CA a. Bee r inter_scs S'':O]eCt p=e_*:I1ses a= CeSC ec- J ' (Separates sheet ,..ay ..e attac ., SOUTHAMPTON LUMBER CORPORATION jY __C oa t::e real ester_ �a=:ter =c_ � c-�ve buyers? {x yes - sale Cr be-g shown to prCSe -r•ot ..,-tT nC C. .i� .-_-.0 - - S ) i + TT. a+..r !__..r• C. ;,--a _ ��•�/ .-.�.�5•-`t� `�, 1 1r�T�.`� yr d'-r.•- . C. he s Gam+r { } yes NO t . Are c"1 - --- --- -_ _ Cy _=e Z. Are the r�et__.G ^a- CC:? N/A -+ t:^._s a�_ _ ,.l_; eaCed be�aen� t.- wet.:___ =a 3 . Is t=e - ,d" ..,�i - --r* a--es? N/A _ b the Ll�l=;_ .. .y wetl Cs or panC ar_ D�7 4. I t =rcPer�T C _tea-_ - e _ tTC cr _ n Qi �.aa ai t e _,—w-n i� GetaCY=i=-==t'_C: ad urisdiC.�Cn? N/A slc::-mac; e l et�a�cc near. cd 3. Is there a de_::essica ar - _ sea _ - . „M cr '^elc:v _=it:a ==et a ove �}e: Draga.sea aanst_lcC _" .. - ca+" y nJ 1 5�.�-e �i_{ .�S•�� / (=r not-,a:=liCaz e, lsveh N/A _ _ ere _^.2=__er5, iL�ti.^.eCCs Cm �91,1 --s Are i'tt�r� a.�'T 7a�O5, Conc- mapz -_ t t, --a 'a na` �LcN-z11 wn4cn eve cam, srid a- none e.P.=s t, Please s w� 'acne suh.mi�t „g? NO - P �' .,;tCt_Cn �.-..��iC Mace at C. Do you have an. cant.-'_ - n== ses? NO I4 ves, please sew-` a c.._ Ccrcar-izg ycur pr=*^.: �. - = -- �,, n ' G- d -,,Lau- as, ap r vVeC D4 t-te '-i-- ar VOur Dull 1 G' �.e='ri�:. Derar t..Lent_ h rcne, please st-.te_ a. Do you cr awl cC-owner alsd cwn c t_- ^ares?? NO I= ves, _ -. a= deeds. :pleaseI,5` i a5e31#'. Cs2 Cr -,C der ---oi -`wobdworking'bus riess:- . .. tea_ ` building-material}storage and sale an woodworking L c 97--13 The. Town of Saur.�.^a -- T-'`L LS — The Board. of T=Vuee Southoid. (Added s or the Town ai 1�-3-5•� b`-' L.L» eta. 6-19841 ti'DS-[Amended 8-26-;o" °p LL Yo. e •1 co:zr ed or inrz-^: ^u7 cor- e-ed :vit. or:vh;c, car_ran.t:dai wares.or lands IYiMT beAeldn tidal Waters. law rice are covered Dy tidal :�a-_zrs:o a rnax,;='-'-"ceuth of :•e (5) feet. ?rci,.:,;;ng dut not Iunited to'+Danks, bags, salt r..ars:Z, swam7.s. .zrzeadows, :-= ar.oc:,er law IYing lards ssn;ec ,ai ac:io_ n: (2) All Danis, bogs. rnezdQ:ros-':]a is subjec::a suc.:, o •� and t1Qal .C.S 3:: ::Zan wn:C:2 -rows-or ..27 VOW some or an3r of tl a ai?owtn l sit hay. blaclt 9- 'm saltworm. bush. T� sea Ia:•z.Ace.� t31I corrgr-•s;. .,z;g,+ 'OSIZL'S��- - rallow (3) iII T=d defined in Sucsec-' tidal viand as --on -V-) zed lying a a ,vit,4iz seven- _ tI-five (?S) ;eet landwa-4 of the most land;var d edge of s-sca a tidal west ard_ 3- ASS �VhT�'I tTtBT- -r_ YDS: / .es.7w:tcr :vetlands as de::ned in :kr--cie 24. Ti- - t.e 1• $ 24-010,, Subdivisions I(ai �o T � of t::c E::•ir _(d, ircissive. onme...-.l Corserr_:ion Of V�:•.v v i.:.wOf Lne St,:te or�: .rd Iz (2) A11 land i:rm d;':z!r zd.;,cI:;c to a"f.-csi;«zCer;vet_ as dcfired in Subseceian 3(I) and l,irt; ',vitlz-_ in sevenc, tine (7S) fee: ?a:id:va*r of�`e mard ed^_Of �� Est Ia;;d_ a .resnn;.;er wetland.'° - r APPI.ICANT TRANSACTIONAL DISCLOSURE FORK The Town of Southold ' s Code of Ethics prohibits conflicts. of interest on the part of town officers and employees . The purpose of this Form is to provide information which can alert Lhe town of possible conflicts or interest and allow it to take whatever action is necessary to avoid same . YOUR NAME: SOUTHAMPTON LUMBER CORPORATION (Last- name , first came , middle initial, unless you are applying in the name of someone else or other entity, such as a company . If so, indicate Lhe other person ' s or company ' s name . ) NATURE OF Al'1'I.ICATT.ON: ( Check all that; apply . ) Tax grievance _ Variance X Change of zone Approval of plat; Exemption from plat or ofricla.l. map OLlier _ ( If "Ot•.her, " name Lhe acL-ivit•y . ) Do you personally (or t•hrougli your company, spouse, sibling, parent, or child) have a relationship with any officer or employee of Lite Town of Southold? "Relationship" includes by blood, marriage, or business interest_ "business interest" means a businenn, including a partnership, in which the town officer or employee has even a partial ownership of (or employment by) a corporation in which the town officer or employee owns more than 5% of Lite shares_ YI''S NO X It you answered "YES, " complete Lire balance of this form ' and date - and sign where indicated. Name of person employed by Lhe Town of Southold Title or position of that person Describe the relationship between yourself ( the applicant• ). and the town officer or employee . Either check Lite appropriate line A) through D) and/or describe in the space provided . The town officer or employee or his or her spouse , sibling, parent , or child is (check all that; apply ) : A) the owner of greater than 5% of Lhe shares of tile corporate stock of the applicant ( when the applicant is a corporation ) ; B) the legal or beneficial owner of any interest- in a noncorporat-e entity (when the applicant- is not- a corporation ) ; C) an officer , direct•or , : partner , or employee o'L- t-he applicant ; or 1) the actual applicant- . DESCnIPTIOIv' OP Suhn:it- Led Lhis 21 day of January;-1999 Slgnat:urei �- Pr.' 1.nl; name_ Stephen L. Ham, 'III, _ Vice President i Prep. 4/6/99 ZBA AGENDA Upd. 4/12 REGULAR MEETING THURSDAY, APRIL 22, 1999 6:30 p.m. Call to Order. I. SEQRA Determinations and Inspection Updates. A. Type II Declarations (not further steps under SEQRA) being setback, lot-line, or accessory use projects, for: Appl. No. 4677 - S. Scace Appl. No. 4672 - D. Rose Appl. No. 4673 -J. Lang Appl. No. 4674 - S. Friedman Appl. No. 4678 - V. Basilice Appl. No. 4680 - R. Terry Appl. No. 4665 - F. Raynor Appl. No. 4676 - A. Palumbo Appl. No. 4679 -J. Rogers Appl. No. 4684- S. Tully Appl. No. 4682 - P. Winters Appl. No. 4683 -V. Campbell Appl. No. 4675 - A. Hughes Appl. No. 4636 - P. Mortimer(project amendment) B. Unlisted Declaration with Negative (No Effect) Declaration: (two new applications for carryover to next meeting, pending site visits and reviews). II. PUBLIC HEARINGS: 6:30 p.m. Appl. No. 4668- SOUTHAMPTON LUMBER CORP. A Variance is requested under Article MV, Section 100-241-G, for permission to reinstate (re-establish) use as a lumberyard and related activities, which use is nonconforming in this Hamlet-Business Zone District, at 13650 Main Road, Mattituck, NY; County Parcel No. 1000-114-11-24.3. (Resolution adopted 4/8/99 reopened hearing for this meeting date.) (Former hearing was 3/25/99). S. Ham, Esq. 6:35 p.m. Appl. No. 4677 — STEPHEN AND JENNIFER SCACE. A Variance is requested under the Southold Town Zoning Code, Article MV, Section 100-244 to locate a proposed dwelling with a setback at less than 55 feet from the (westerly) front property line. The subject property contains less than 79,999 sq. ft. in area and is defined as a corner lot with more than one front yard area under the Zoning Code. Location of Property: East End Road, Fishers Island, NY; County Parcel No. 1000-4-5-18. 6:40 p.m. Appl. No. 4672—DOUGLAS AND AMY ROSE. A Variance is requested under the Southold Town Zoning -.Code, Article x=based upon the December 3, 1998 Notice r of Disapproval which states that the proposed addition does not meet the requirements of P FORM NO.4 TOWN OF SOUTHOLD BUILDING DEPARTMENT Office of the Building Inspector Town Hall Southold, N.Y. Certificate Of Occupancy No.Z12023 . . . . . . . . . . Date . . ...October. 29 . . . . . . . . . . . . . . . .. 19 83. THIS CERTIFIES that the building s . . (3.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Location of Property 13650. . . . . . . . . . . , .Main Road Mattituck N House o. Street . . . * * ' ' *Nam/et County Tax Map No. 1000 Section . 1.1.4 . . . . . . .Block . . 1.1. . . . . . . . . . .Lot . 0 0 3 .&. PX o:2 4: Subdivision . . . . .X . . . . . . . . . . . . . . . � � . . . . . . .Filed Map No. X. . . . . ,Lot No. . . . . . . . . . . . requirements for a ' C ' Light Indisutrial Zone , prior to conforms substantially to the Applicatioir for-Ruih nrg-Permit-hermftyrLr-Mad-ir-this-offmc dated Certificate of Occupancy Z12023 A p r i 1 .2. . . . . . . . . . . , 19 57. pursuant to which Building-Permit No. . . ... . . . . . . . . . . . . . . . . . dated . . . . . 0 c.t o b e r .2 9. . . . . . . . . . . 19 8 3. ,was issued, and conforms to all of the requirements of the applicable provisions of the law. The occupancy for which this certificate is issued is . . . . . . . . . ,a, lumber. . woodworking .business . . . . . . . . . . . . . . . . . . . . . . . . . . . The certificate is issued to . . . . . . REEVE LUMBER & WOODWORKING CO . , INC . . . . . . . . . . . . . . .(owner%®ssee{iFfeiretstj . . . . . . . . . . . . . . . . . . . . . of the aforesaid building. Suffolk County Department of Health Approval . . . .r14. r.e q g r d. . . . . . . . . . . . . . . . . . . . . . . . . . . UNDERWRITERS CERTIFICATE NO. . . . . . . . . . . .nlr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Building Inspector Rev.1/81 NOTICE OF PUBLIC HEARING SOUTHOLD TOWN BOARD OF APPEALS THURSDAY,APRIL 22, 1999 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 a public hearing by the SOUTHOLD TOWN BOARD OF APPEALS, at the Southold Town Hall, 53095 Main Road, Southold,, New York 11971, on THURSDAY, APRIL 22, 1999 at the time noted below (or as soon thereafter as possible): 6:30 p.m. Appl. No. 4668 — SOUTHAMPTON LUMBER CORP. This is a request for a Variance under Article XXIV, Section 100-241-G, for permission to reinstate (re-establish) use as a lumberyard and related activities, which use is nonconforming in this Hamlet-Business Zone District. Location of Property: 13650 Main Road, Mattituck, NY; County Parcel No. 1000- 114-11-24.3. (Resolution adopted April 8, 1999). 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 concluding the hearing. Each hearing will not start earlier than designated. Files are available for -review-during regular Town Hall business hours (8'4-p:m:). If you--have questions;please do not-- hesitate to call (516) 765-1809. Dated: April 12, 1999. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN § 58-1 NOTICE OF PUBLIC HEARING § 58-1 Chapter 58 NOTICE OF PUBLIC HEARING § 58-1. Providing notice of public hearings. ( STORY: Adopted by the Town Board of the Town of Southold 12®27-1995 as L°I. No. 25<1995° Amendments noted where applicable°] § 58-I° Providing notice of public hearings. Whenever the Code calls for a public hearing, this .section shall apply. Upon determining that an application is complete, the board or commission reviewing the same shall fix a time and place for a public hearing thereon.The board or commission reviewing an application shall provide for the giving of notice- A. By causing a notice giving the time, date, place and nature of the hearing to be published in the official newspaper within the period prescribed by law. B. By requiring the applicant to erect the sign provided by the town, which shall be prominently displayed on the premises facing each public or private street which the property involved in the application abuts, giving notice of the application, the nature of the approval sought thereby and the time and place of the public hearing thereon. The sign shall be set bade not more than ten (I®) feet from the property line. The sign shall be displayed for a period of not'less than seven (7) days immediately preceding the date of the public hearing. The applicant or hWher aunt shall file an affidavit that s/he has compiled with this provision. C. By requiring the applicant to send notice to the owners of record of every property which abuts and every property which is across from any public or private street § 58m1 SOUTHOLD CODE from the property Included In the application. Such notice shall be made bycertifled mail, return requested, reft ipt at le. seven(7)days prior to the date or the Initlal public hearing on the application send ar addresaW to the owners at the add s listed fit h m on the local mGnnt roll° a applicant st file an afl°ndavit that a has compiled with this p vlslan° 1 VOROACC, 1 b WTnsrATE- Usk A5 � L1iuMdE�C A NoN N oR/�tf 6 ttSE— NAMI.lT �I15. LONE TRIAD � N TICE OF HEARIN. 9EtATFa NOTICE IS HEREBY GIVEN that a public hearing will be held by the SOUTHOLD TOWN BOARD OF APPEALS at the Town Ball, 53095 Main Road, Southold, New York, concerning this property. OWNER(S) OF RECORD : 4wo10uT4AhPr6/V LuMbEte C69 P DATE OF PUBLIC HEARING : ThQrs :tA. p� r►� . P 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 BOARD OF APPEALS e TOWN OF SOUTHOLD (516) 765-1809 13� S� Maml kel. 1'4 lt' Tak OFFICE OF T ZONING BOAR® OF APPEALS 53095 Main Road Southold, NY 11971 (516) 765-1809 fax 765-9064 April 12, ,1999 Stephen L. Ham III, Esq. 45 Hampton Road Southampton, NY 11968 Re: Chapter 58— Public Notice for Thursday, April 22, 1999 Hearing Dear Mr. Ham: Please find enclosed a copy of the Legal Notice describing your recent application, The Notice will be published in the next issue of the Suffolk Times newspaper, the Town's current official newspaper. Pursuant to Chapter 58 of the Southold Town Code (copy enclosed), formal notice of your application and hearing must be mailed and shall include a map or sketch showing the new location with the setbacks and use noted. Send this Notice, as soon as possible, with the map to all owners of land (vacant or improved) surrounding yours, including land across any street or right-of-way that borders your property. Use the current addresses shown on the assessment rolls maintained by the Town Assessors'Office (765-1937) or the County Real Property Office in Riverhead. If you know of another address for a neighbor, you may want to send the notice to that address as well. Please send a fax copy of your Affidavit of Mailing and Affidavit of Posting showing the first dates of mailing and posting (the original Affidavits, and post office receipts, for submission at the hearing). If any signature card is not returned, please advise the Board at the hearing. You must post the enclosed sign no later than 4/15/99. Post the sign facing the street, no more than 10 feet from your front property line bordering the street. The sign must remain in place for at least seven (7) days, and if possible, should remain posted through the day of the hearing. If you need a replacement sign, please contact us. After the signs have been in place for seven (7) days, please submit your Affidavit of Posting to us for the permanent file. If you do not meet the deadlines stated in this letter, please contact us promptly. It may be necessary to postpone your hearing if the required steps are not followed. Thank you for your cooperation. Very truly yours, ZBA Office BOARD OF APPEALS A; :�; Southold To �1 h�Y Y y, #_ r# PO Box 1179s 53095 Mumm Road # Southold, NY 11971 R t.< IL Ha Merlin Becker , Jr , c/o Riverhead Building Supply 1093 Pulaski Ste ;- ry.;' - Riverhead , NY 11901 4 ems, y- - .'1,• i ZONING BOARD OF APPEALS TOWN OF SOUTHOLMNEW YOR.K In the Matter of the Application of AFFIDAVIT Southampton Lumber Corporation OF (Name of Applicant) POSTING Regarding Posting of Sign upon Applicant's Land Identified as 1000- 114 - 11 - 24.3 COUNTY OF SUFFOLK) STATE OF NEW YORK) 1, H. Merrill Becker, Jr. residing at 90 Hampton Street, Sag Harbor , New York, being duly sworn, depose and say that: On the 14th day of April , 19 99 , I personally placed the Town's official Poster,with the date of hearing and nature of*-application, in a secure position upon 4 property,located ten (10) feet or closer from the street or right-of- way- facing the street or facing each street or right-of-way abutting this property;* and that I hereby confirm that the Poster has remained in place for seven days prior to the date of the subject hearing date,which hearing date was shown to be April 22, 1999 (Signature) H. Merrill Bec r, Jr. Sworn to before me this 21st day of April , 1999. STEPHEN L.HAM,M • r� Public,State of New York (No ry Public) wdr A468012® Iltl in Suffolk County Conwaslon Expires July 31.2e®® *Southampton Lumber Corporation's **near the entrance or driveway entrance of my property, as the area most visible to passersby. �® r -71 ��.M-WME MW A ._,Saw p Mr on AM 1 WE NUMMAN wr low, : � :;,jss=+. ,� + _.as� ��►��� Ali`` , , T�! � w -'••Ian: ��. / -I�� � I�i►Q '���,' `'r ��`� ���� ��,����� ■■ .,1 . fir-� j ����' � .i�i .���� . ..�� �� ♦ •/ ,� /1 Ir ���• _ ; •.off/.. /I � J • d r Draft re . 4/5 Upd. 4/6 ,j ZBA AGENDA SPECIAL MEETING APRIL 81 1999 6:30 p.m. Call to Order. I. POSSIBLE RESOLUTIONS/COMMUNICATIONS/OTHER: A. Letter with enclosed Affidavit from Donielle Cardinale requesting that Board reopen hearing record in the Matter of Appl. No. 4668 - Southampton Lumber property at Main Road, Mattituck. HB Zone. Possible Resolution to reopen written (or entire?) record with an extended date of April 22, 1999, as-the final conclusion. B. Resolution to confirm application withdrawn at applicant's request. ($150 fee covers costs to process, advertisements, hearing transcript). C. Resolution to authorize filing of Minutes for March 25, 1999 Meeting. r II. DELIBERATIONS/POSSIBLE DECISIONS: Appl. No. 4663 - FRANK MIRCHEL. Rear yard setback. Addition at Yennecott Drive, Southold. Appl. No. 4666 - MR. AND MRS. BARRY. Garage location with insufficient front yard setback on a corner lot at West Cove Road, Cutchogue. Appl. No. 4667 and 4670 - MR. AND MRS. SICA. Front yard setback on a corner lot, and bulkhead setback. ROW off s/s Main Road, East Marion. Appl. No. 4669 - SOUTHAMPTON LUMBER CORP. (Hearing was concluded on 3/25/99). (Disregard decision if Board chooses tonight to reopen hearing - for next meeting). III. SEQRA DETERMINATIONS: A. Unlisted Actions with possible Negative Declarations on the following: Appl. No. 4669 - Southampton Lumber Corp. Appl. No. 4681 - Michael K. Hughes/North Shore Yacht Sales B. Type II Actions/Applications for dimensional-setback adjustments, nonconforming lot line or lot area adjustments, accessory buildings or uses, Accessory Apartments, Accessory Bed and Breakfast Use for hearings to be held April 22, 1999. (Applications are listed on the April 22 agenda (copy attached). .. Page z—Agenda April 8, 1999 Special Meeting Southold Town Board of Appeals SEQRA, continued: C. Other applications pending with other agencies or incomplete pending additional information: Robert Schroeder project (await additional documentation); Hellenic Cabins/Giannaris project to expand existing buildings (await additional documentation, setbacks, etc); Lettied and Gazza project (incomplete); Lustgarten-Tavano project (applicant postponed); Empire Gas Project (await additional agency reviews). IV. CODE COMMITTEE: Monday, April 12, 1999 at 9 a.m. Prep. 4/6/99 ZBA AGENDA REGULAR MEETING THURSDAY, APRIL 22, 1999 6:30 p.m. Call to Order. I. SEQRA Determinations and Inspection Updates. A. Type II Declarations (not further steps under SEQRA) being setback, lot-line, or accessory use projects, for: Appl. No. 4677 - S. Scace Appl. No. 4672 - D. Rose Appl. No. 4673 - J. Lang Appl. No. 4674 - S. Friedman Appl. No. 4678 - V. Basilice Appl. No. 4680 - R. Terry Appl. No. 4665 - F. Raynor Appl. No. 4676 - A. Palumbo Appl. No. 4679 -J. Rogers Appl. No. 4684 - S. Tully Appl. No. 4682 - P. Winters Appl. No. 4683 - V. Campbell Appl. No. 4675 - A. Hughes Appl. No. 4636 - P. Mortimer (project amendment) B. Unlisted Declarations with Negative (No Effect) Declarations: (none as of 4/ ). II. PUBLIC HEARINGS: 6:30 p.m. Appl. No. 46_ - (Reserved for possible reopening of a hearing). 6:35 p.m. Appl. No. 4677 — STEPHEN AND 3ENNIFER SCACE. A Variance is requested under the Southold Town Zoning Code, Article XXIV, Section 100-244 to locate a proposed dwelling with a setback at less than 55 feet from the (westerly) front property line. The subject property contains less than 79,999 sq. ft. in area and is defined as a corner lot with more than one front yard area under the Zoning Code. Location of Property: East End Road, Fishers Island, NY; County Parcel No. 1000-4-5-18. 6:40 p.m. Appl. No. 4672 — DOUGLAS AND AMY ROSE. A Variance is requested under the Southold Town Zoning Code, Article XXIV based upon the December 3, 1998 Notice of Disapproval which states that the proposed addition does not meet the requirements of Section 100-244 for a required 15 ft. side yard setback. Location of Property: 500 Maple Lane, Southold, NY; County Parcel 1000-64-01-20. ZONING BOARD OF APPEALS TOWN OF SOUTHOLD: NEW YORK -------------------------------------------------------------------x In the Matter of the Application of AFFIDAVIT Southampton Lumber Corporation OF Parcel ID #1000-114-11-24.3 MAILING -------------------------------------------------------------------x COUNTY OF SUFFOLK) STATE OF NEW YORK) I,PATRICIA ROBINSON,residing at 106 Oneck Lane,We Beach, New York, being duly sworn, depose and say that: On the 12th day of April, 1999, I personally mailed at the United States Post Office in Southampton, New York, by CERTIFIED MAIL, RETURN RECEIPT REQUESTED, a true copy of the attached Legal Notice in prepaid envelopes addressed to the current owners shown on the current assessment roll verified from the official records on file with the Assessors Office of the Town of Southold, for every property which abuts and is across a public or private street, or vehicular right- of-way of record, surrounding the applicant's pro rty. Patricia Robinson Sworn to before me this 19th day of April, 19,99 -L. ( , (Notary Public) STEPHEN L.HAM,III Pei 1%State of New York No.02HA4680120 awlmw in Suffolk County miasion Expires July 31,7,ou PLEASE list, on the back of this Affidavit or on a sheet of paper, the lot numbers next to the owner names and addresses for which notices were mailed. Thank You. APR. 12 '99 10:38 SOU uOLD TOWN ACCOUNTING P.2i6 • � ` NOTICE OF PUBLIC HEARING SOUTHOLD TOWN BOARD OF APPEALS THURSDAY,APRIL 22, 1999 NOTICE IS HEREB)' GIVEN, pursuant to Section 267 of the Town Law and the Code of the TC wn of Southold, the fcliowir g application will be held for a public hearing by the SOI)_THOLD T01 WN BOARD QF APiPgAM eat the Southold Town Hall, 53095 Main Road, Southold, New York 11971 on j"RSDAY, AEJUL 2z,. 1999 at the time noted below(or as soon thereafter as possible): ; 6:30 p.m. Appl. No. 4668—69WWAMPTON LUMBER Can. This is a request for a Variance under Article)D:IV, Section 100-241-G, for permission to reinstate (re-establish) use as a lumberyard and related activities, which use is nonconforming in this Hamlet-Business Zone District. bocatcon of Property: 13650 Main Road, Mattituck, NY; County Parcel No. 1000- 114-11-24.3. (Resolutiori adopted April 8, 1999). The Board of Appeals will at said time and place hear any and all persons or representat ves, desiring to be heard it the above application or desiring to submit written statements be e concluding the hearing. Each hearing will not start earlier than designated. Files are available for review during regular Tc:wn Hall business hours (8-4 p.m.). If you have questions, please do not hesitate to call (516)76 5-1809. Dated: April 12, 1999. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN 1 ATTACHMENT TO AFFIDAVIT OF MAILING Suffolk County Tax Map No. Assessed Owner and Address 1000-114-11-2 Mattituck Library P. O. Box 1437 Mattituck, NY 11952 1000-114-11-4 Diane Cotugno & James F. King 220 East Mill Road Mattituck, NY 11952 1000-114-11-5 Joseph&Betty A. Hardy 1654 North Highway Southampton, NY 11968 1000-114-11-22.1 Raymond Nine 855 New Suffolk Avenue P. O. Box 1401 Mattituck, NY 11952 1000-114-11-23 Dwight & Jane Edstrom 945 New Suffolk Avenue Mattituck, NY 11952 1000-114-11-24.1 David L. Reeve P. O. Box 1157 Mattituck, NY 11952 1000-140-3-30 DeFriest Funeral Homes Main Road Southold, NY 11971 1000-140-3-31 Michael J. &Maria C. Montgomery P. O. Box 536 Mattituck, NY 11952 n ' t + n Z 119 593 144 Postal Service Z 119 593 143 3celpt for Certified Mail Us Postal Service Z 119 593 146 Insurance Coverage Provided. Z 119 593 145 not use for Intemational Mail See reverse Receipt for Certified Mail US Postal Service nt to No Insurance Coverage Provided. Receipt for Certified Mail US Postal Service avid L. Reeve Do not use for Intemational Mail See reverse Sentto Beet No Insurance Coverage Provided. Receipt for Certified Mail 8 Number. Box 1157 Dwi ht & Jane Edstrom o not use forintemabona at (See reverse) No Insurance Coverage Provided. &ZIP Code Street&Number Sent to Do not use for International Mail See reverse st Office Star, Michael J. & Maria C. Montgomery Sent to IttlEuc�c, NY 11952 945 New Suffolk A Post office,Stale,&ZIPCode Street DeFriest Funeral Homes astage Cc�� 3 Aattituck, NY 11952 P. 0. Box 536 Street&'Number Post Office,State,&ZIP Code Main Road 0 ertified 6'6� v� Lt Q Postage Mattituck, NY 2 Post Office,State,B ZIP Code ea 071 CenifiedFea ,/J\ Postage 969 p 3� Southold NY 11971 pedal eys' F a I c,l Z Certified F 0' Postage 1 Iesiricied elj>� ��jC{ Special Delive F { ere Fee �1 , (,j/, Certified Fee � � • [�+ tetum Receip S� Restricted Deliv ryvFee\ y Special Deli a 6/ (p Vhom&Date De -live ua Special Del'y r¢f Q rn N on Return Receipt Sh n 2S Restricted Deli a d ieWin Receipt ShomN to WhOrn Whom&Date Delivere y hie,&Addressees Address = Retum Receipt Showi r— Restricted D J 2 n Returo Receipt Smig to whom. ul TOTAL Postage&Fees $ / $ Q Date,&Addressees Address _ Whom 8 Date Delivered ?' Return Receipt ShNiffitip $ Q�•, n Rehm Addressee's Address Receipt Showing to Wham, = Whom&Date Deliver or Date O 2S O TOTAL Postage&Fees $ 2 e b ¢ Dale,8 Add 0 a Rehm Receipt Showing to Whom, E Postmark or Date 0 $ Cj C Date,&AdNessee's Address O TOTAL Postage&Fees 9 li E Postmark or Date 00 TOTAL Postage&Fees $ 1 g EL ri E Postmark or Date ti o_ rn a v cn m 0) o m 0 aleD JO Vewlsod w 3 Z 119 593 140 Z 119 593 141 9 ccale(]ro)pewlsod W seed q 96els0d 1V101 O co US Postal Service US Postal Service o 7j'Z $ saaj g a6e190d,lV101 0 Receipt for Certified Mail sswppv seassarppv q'aleD D .P Receipt for Certified Mail ,w Wofkmoysld!aaeuwnlau v sappysaasswppVq'aleD y No Insurance Coverage Provided. No Insurance Coverage Provided. 'woWAoltiu!Mo451d!acaywnlatI'9 Do not use for Intemational Maih See reverse -7 ale0-R wogM — Do not use for International Mail See reverse wnla)j Z I pwangaD ale(]g..qM Sent to ` nl to of bu!moys ldeosU wnlay Diane Cotugno�& Jaines Kin oseph & Betty A. Hardy '2 r (] ulsay °i Street 8 Number S r�G1$ I aaj an!IaO Paputsay 11b 74NNorth r.-r ++ 220 East Mill,12oad � 1='; Highway r �ad kan!p�cads I oad Post Office,State,&ZIP Od Post Office,Stale,8 ZIP Code Y �_L vv,�aC 41111 —, aa�tia�!ao e. s Mattituck ° co�195 = Southam ton, NY 11968 aad pag!DaO PostagePostage $W e6elsod $ a6elsod Certified Fee Z56TT IN Mon T3:le 1 t f Q Certified Fee Q °P°O dIZ B'ale1S'°°gf0lsod on4Tq�Erd Sped al Delivery Fee anuany ,jTo33nS MaN 558 IZ 'ale S'a°V scd Specie Delivery Fee XO IaqumN g IawISL£hT A 'o 'a Restricted Delivery Fee auTN puOul"U �' ,J umN p lawls u) ry ul Restricted Delivery Fee of lugs rq� 3 T�l eN Return Receipt Showing to f��° 'n Return Receipt Showing to ^� es/BAaj aaS 1!eyy leuo!lewalul lol asn foU o0 ~ a °I IUJS — Whom&Date Delivered I ✓ 'peptiad eBujanoD oOuejnsul ON esrana� le of of 1ol asn lou op _ Whom&Date oel n Return R ddres ees Ad Address IE 81 7 e JO dlaoe ra eouedr sul ON ¢ Date.&Add Addressees Addmss C Daate.& t A I. IN P j.jJ J 3 IE JO jd=9 0 8OIMa$Ie1sOd sfl I. i_I 00 TOTAL Postage&Fees $ e $' O TOTAL Po ag &Fees a]INOS lelsod Sff O 0 Postmark or Date c" Postmark c0 2h`C E65 6TT Z E 6E C E65 6 IT Z o € s U ii n @9ro 'in 0 Complete Items 1 and/or 2 for additional services. vices(for an extra fee): ❑print your name and address on the ref is forth so That we ran return this u Complete Items 3,4a,and 4b. card to you. 1.❑Addressee's Address p k ❑Print your name and address on trip reverse of this to=so that we can return this a d ❑Attach this form to the from of the mailp 1 the back if space does not > card to you. - Addressee's Address ° permit. 2•❑Restricted Delivery m Attach this lomt lode front of the mailpiece,or on the back if space does not ❑Witte'Return Receipt Requesfed'on the mailpiece below the article number. per„id, 2•❑Restricted Delivery p The Retum Receipt will show to whom the article was delivered and the date o• ❑Write'Refum Receipt Requested'on the mailpiew below the article number. p delivered. u 0 The Return Receipt will show to whom the article was delivered and the date `e c delivered. •q w 3.Article Addressed to: 4a.Article Number ¢ 13 3.Article Addressed to: 4a.Article Number a Z 119 593 143 E a Z 119 593 141 c o Dwight & Jane Edstrom 4b.Service Type E 4b.Service Type 5 p ❑Registered Kl Certified m o Joseph & Betty A. Hardy r>,f: 945 New Suffolk Avenue o u ❑Registered Certified of Express Mail ❑Insured w 1654 North Highway C ¢ Mattituck, NY 11952 ❑Express Mail ❑Insured u ❑ ❑Return Receipt for Merchandise ❑COD Southampton, NY 11968 ❑Retum Receipt for Merchandise ❑COD - a 7 Date of Delivery, P h = /a t ❑ _ ❑ 7 Date of Delive /�}} z ❑ 5.Received By,(Print Name) 8.Addressee's A Pass(Ohl i/requested and c 5.FNIved By:( N 8.Add essee's Address(Only if requested and a CZ6r fee is paid) / w lee is paid) a 5 o 6.Si natur ddr se or enl 6. lure r enf '• TP. N rn 1 PS FdFW3811,December 1994 102595-99-B-0223 Domestic.Return Receipt PS Form 3811,December 1994 102595-99-B-0223 Domestic Return Receipt '- �-- - -- - - "-- - - � t•• 111 Ill I 1 1 SENDER: (((11 fill 1111111 �( (( ( ( (( 11" jPa1WUi1sWjoreceivethefollow- m ❑Complete items 1 and/or 2 for additional services. Ing services(for an extra fee): SENDER: I also wish to receive the follow- a Complete items 3,4a,and 4b. n O Complete items 1 and/or 2 for additional services. Ing services(for an extra fee): ❑Print your name and address on the reverse of this forth so that we can return this 1 a Complete items 3,4a,and 4b. m card to you. l�Addressee's Address ❑Print your name and address on the reverse of this form so that we can return this y El this form to the front of the mailpieca,or on the back d space does not 2,1-]Restricted Delivery card to you. 1•❑'Addressee's Address ` « ❑Writelt'Refum Receipt Requested the mailplece below the article number. ` ❑Attach this form to the front of the mailpiece,or on the back if space does not 2•❑Restricted Delivery to C The Return Receipt will show to whom the article was delivered and the date a y permit. p p delivered. a10i S ❑Write'Refum Receipt Requested'on the mailpiece below the article number. a i p C The Return Receipt will show to whom the article was delivered and the date 2 at 3.Article Addressed to: ¢ p delivered. p d Z 119 593 140 E 3.Article Addressed to: 4a.Article Numt1-r ¢ a S g E Diane Cotu no & James King 4b.Service Ty I( Certified u N Z 119 593 145 E o g ❑Regis �,p.��TUC ¢ a " 220 East Mill Road /-' E DeFriest Funeral Homes 4b.Service Type v to ❑Expre M' sured $ ❑Registered �MS€SLQg�ti led w Mattituck, NY 11952 m Plain. Road �� ¢ ❑Retu RecelptforMerchandise ❑ D ❑Express Mail 5 1 t e ❑ W Southold, NY 11971 �n `•1 ❑ 7 Da of G ❑Return Receipt nor/Merchandise ❑COD G .l. 2 o ❑ 7 Date of Delivery APR 1 419 r19 � ¢ y A a j IJJJ T S 5.Received By:(Print Name) 8.Addr ee' nl it quested and no z fee is SP <j2 �' ¢ w S 119 5.Received B (Print Name 8.Addressee's Address(Only ifreque led and c, ¢ y ) lee is paid) g C. 0 6.Si at re(Addresse QrAgent) LL 7-1i. ( PS arm 3811,December 1994 102595-99-B-0223 Domestic Return Receipt 102595-99-B-0223 Domestic Return Receipt -----------'------"-'-' -- - PS Form 3811,.December 1994 v SENDER: I also wish to receive the follow- 'a in services for an extra fee a ❑Complete items 1 and/or 2 for additional services. 9 SENDER' I also wish to receive the follow- Complete dams 3,4a,and 4b. m ' In services(for an extra fee): ❑print your name and address on the reverse of this form so that we can return this 1 ❑Addressee's Address o O complete items 1 and/or 2 for additional services. g v card to you. - Z Complete items 3,4a,and 4b. : ❑Attach this form to the front of the mailplece,or on the back if space does not 2.❑Restricted Delivery N e Print your name and address on the reverse of this form so that we can return this 1 ❑Addressee's Address 2 d permit' card to you. Write'Return Receipt Requesfed'on the mailpiece below the lord number. a 13 Attach this Corm to the front of the mailplece,or on the back if space does not 2.❑Restricted Delivery N ❑The Return Receipt'All show to whom the anitle was delivered and the date d permit. o delivered.° p ❑Write'Refum Receipt Requesfed'on the mailpiece below the article number. a SaOn 4a. 1cle Number W ❑The Return Receipt will show to whom the article was delivered and the data 3.Article Addressed to: delivered, Z 19 593 144 E 4a.Article Number ¢¢ a 3.Article Addressed to: Z 119 593 146 ab. rvlc Type ¢ M E o David L. Reeve Isle .d ]0 Certified U erviceType m y P. 0. Box 1157 ❑ ass ail ❑Insured ° Michael J. & Maria C. onime�i� ¢ u istered Kl Certified w o P. 0. Box 536 rn ¢ Mattituck, NY 11952 666 ❑Re celptforMerchandlse ❑COD ress Mail ❑Insured y ❑ J Mattituck, NY 11952 C mReceiptforMerchandise ❑COD o ¢ 7 elivery at 0 w z N D e of Delivery ¢ ddressee's Address(Onlyi/requested and c yJ c9� a w 5.Received By:(Print Name) ee is paid) F 9 D .Addressee's Address(Only if requested and c ¢ 5. ceived By:(Pri tName) Pee is paid) F o 6.Signature(Addressee or Agent) > '6, ture Addresse ant - '-' 102595-99-B-0223 Domestic Return Receipt ` PS Form 3811,December 1994 - - ,S F m 3811, camber 1994 \ 102595-99-B-0223 Domestic Return Receipt _ also wish to receive the follow- ' d SENDER: in services(for an extra fee): v_ •p, ❑Complete dams 1 and/or 2 for additional services. ry SENDER: I also wish to receive the follow- „ Complete items 3,da,and 4b. p ❑Print your name and address on the reverse of This forth so that we can return this 1 0 Addressee's Address ins services(for an extra fee): m card to you. O Complete items 1 and/or 2 for additional services. p 2.❑Restricted Delivery y Complete items 3,4a,find 4b. ai ` ❑Attach this Sorm to the front of the madpiece,or on the back if ace does not O Print your name and address on the reverse of this form so That we can return this 1 Q Addressee's Address d permit. a card to you. ❑Write'Refum Receipt Requested'on the mailplece below the article number. p Attach this form to the front of the mailpiece,or on the bade if space does not 2,❑Restricted Delivery m ❑The Return Receipt will show to whom the article was delivered and the date at Permit W ❑ delivered. - 4a.Article umbgr ¢ O Write'Return Receipt Requesfed'on the mailplece below the article number. p 5 C The Return Receipt will show to whom the article was delivered and the date •y d 3.Article Addressed to: delivered. o. m 3.Article Addressed to: 4a.Article Number 4b.Service T '`-(�(•L'�y'7V, ertified ¢ Z 119 593 139 E o Raymond Nine ❑Register V ❑I ured H 4b.Sery ice Typ �q�T(JCCertified ¢ n 855 New Suffolk Avenue ❑Expre Ma o Mattituck Library ❑Registere `` K / Certified N In p, 0, Box 1401 ❑Retu RAC i M r ndlse C a P. 0. Box 1437 ❑Expres at ured 11952 0 Mattituck, NY 11952 ; c Mattituck, NY 7 oat ofD e ❑Return ecelp for Merchandise ❑C D c G if quested and c. t 7 Date f De to o � 8.Addres t 5.Rec ived By:(Ph e) fee is pai PS 119 t` w 5.Received E :(PrintName) B.Addres e's ass ifre esled and�'S ¢ lee is pa r 5 6.S na r (Addressee or Agent) LISPS 1195 0 6.Signature(Addressee or Agent) _ PS Form 3811,December 1994 102595-99-B-0223 Domestic Return Receipt PS Form 3811,December 1994 102595.99-B-0223 Domestic Return Receipt ,- - r ZONING BOARD OF APPEALS TOWN OF SOUTHOLD: NEW YORK -------------------------------------------------------------------x In the Matter of the Application of AFFIDAVIT Southampton Lumber Corporation OF Parcel ID #1000-114-11-24.3 MAILING -------------------------------------------------------------------x COUNTY OF SUFFOLK) STATE OF NEW YORK) I, PATRICIA ROBINSON, residing at 106 Oneck Lane, Westhampton Beach, New York, being duly sworn, depose and say that: On the 16th day of March, 1999, I personally mailed at the United States Post Office in Southampton, New York, by CERTIFIED MAIL, RETURN RECEIPT REQUESTED, a true copy of the attached Legal Notice in prepaid envelopes addressed to the current owners shown on the current assessment roll verified from the official records on file-with-the Assessors-Office--of the-Town-of - - Southold, for every property which abuts and is across a public or private street, or vehicular right-of-way of record, surrounding the applicant's property. Patricia Robinson Sworn to before me this 17th day of March, 1999 (Notary Public) STEPHEN L.HAM, Notary Public,StM Of NOW Y®sk No.02mA46 120 Qualified in Suffolk CounW Commission Expires Ju.k 31, 12.6b® PLEASE list, on the back of this Affidavit or on a sheet of paper, the lot numbers next to the owner names and addresses for which notices were mailed. Thank You. MAR 08 '99 11:32 SOUTHOLb TOWN ACCOUNTING P.3i3 l NOTICE OF PUBLIC HEARING; SOUTHOLD TOWN BOARD OF APPEALS THURSDAY,MARCH 25, 1999 NOTIC IS HEREE'Y GIVEN, pursuant to Section 267 of the Town Law and the Code of the 7 wn of Southold,.,the failowing application will be held for a public hearing ,by the $OUTHOL12 TO NN ®t?ARD OF APPEALS, at the Southold Town Hall, 53095 Main Road, Southold, New York 1197. ' on THUgSDAY,MARCH Z j 1999 at the time noted below(or as soon thereafter as possible)® 5:05 pm. Appl. No. 4666 -- EQUTHAMPT®N LUMBER C®RP. This is a request for a' ,Variance under Article X(IV, Section 100-241-G, for permission to reinstate (reestablish) use as a lumberyard and relWAd activities, which use is nonconforming in this Hamlet-Businew Zone District. Location.of Property: 13650 Main Road, Mattituck, NY; County Parcel No. 1000- 114-11-24.3. i The Board of App:?als will at said time and place hear any and all persons or representat ves desiring to be heard in the above application or desiring to submit written statements be ore concluding the hearing. • Each hearing will not start earlier than designated. Files are available for review during regular T:awn Nall business hours (8-4 p.m.). If you have questions, please do not hesitate to call (516)X5-1809. Dated: March 8, 1999. BY ORDER OF THE S®UTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER � CHAIRMAN By Linda Kowalski i ATTACHMENT TO AFFIDAVIT OF MAILING Suffolk County Tax Map No. Assessed Owner and Address 1000-114-11-2 Mattituck Library P. O. Box 1437 Mattituck, NY 11952 1000-114-11-4 Diane Cotugno & James F. King 220 East Mill Road Mattituck, NY 11952 1000-114-11-5 Joseph&Betty A. Hardy 1654 North Highway Southampton, NY 11968 1000-114-11-22.1 Raymond Nine 855 New Suffolk Avenue P. O. Box 1401 Mattituck, NY 11952 1000-114-11-23 Dwight& Jane Edstrom 945 New Suffolk Avenue Mattituck, NY 11952 1000-114-11-24.1 David L. Reeve P. O. Box 1157 Mattituck, NY 11952 1000-140-3-30 DeFriest Funeral Homes Main Road Southold, NY 11971 1000-140-3-31 Michael J. &Maria C. Montgomery P. O. Box 536 Mattituck, NY 11952 ZONING BOARD OF APPEALS TOWN OF SOUTROLMNEW YORK _ x In the Matter of the Application of AFFIDAVIT Southampton Lumber Corporation OF (Name of Applicant) POSTING, Regarding Posting of Sign upon Applicant's Land Identified as 1000- 114 - 11 - 24.3 x COUNTY OF SUFFOLK) STATE OF NEW YORK) I, H.-MERRILL BECKER, JR. residing at f® A",V wd SP(M-C- Sag Harbor ,New York, being duly sworn, depose and say that: On the 17th day of March , 19 99 , I personally placed the Town's official Poster, with the date of hearing and nature of tty application, in a secure ,position upon�m"roperty, located ten (10) feet or closer from the street or right-of- way-facing the street or facing each street or right-of-way abutting this property;* and that I hereby confirm that the Poster has remained in place for seven days prior to the.date of the subject hearing date,which hearing date was shown to be March 25, 1999 9'. �Signa ure) ' H. Merrill Beck Jr. Sworn to before me this 25tbday of March , 1999 STEPHEN L.HAM,M NOW Public,State of New Yore, _ No.02HA4680120 (N tary Public) Qualified in Suffolk County Commission Expires July 31,1-000 * Southampton Lumber Corporation's *near the entrance or driveway entrance of my property, as the area most visible t passersby. i --- NOTICE®F PUBLIC WEARING SOUTI-HOLD TOWN BOARD OF APPEALS j THURSDAY, STATE OF NEW YORK) APRIL 22,1999 NOTICE IS HEREBY GIVEN, )SS: pursuant to Section 267 of the Town COUNTY OF SUF FOLK) Law and the Code of the Town of p d g Southold, the following application '�� F l/L1� \ \ `S' of Mattituck, in said will be held for a public hearing by the SOUTHOLD TOWN BOARD county, being duly sworn, says that he/she is OF APPEALS, at the Southold Principal clerk of THE SUF'F OLK TIMES, a Town Hall, 53095 Main Road, Southold, New York 11971, on weekly newspaper, published at Mattituck, in TI-HURSDAY, APRIL 22, 1999 at the Town of Southold, County of Suffolk and the time noted below (or as soon thereafter as possible): State of New Fork, and that the Notice of Which 630 p.m. Appl. No. 4668 — I the annexed is a printed c0 has been re -SOUTHAMPTON LUMBER p copy, CORP. This is a request fora i larly published in said Newspaper once each Variance under Article XXIV, 1 Section 100-241-G, for permission week for Meeks successively, to reinstate (re-establish) use as a i comn2enq g on the (t) , day lumberyard and related activities, which use is nonconforming in this of HDF11 19 H-IIamlet-Business Zone District. y Location of Property: 13650 Main Road,Mattituck,NY,County Parcel No. 1000-114-11-24.3. (Resolution Principal Clerk April 8,1999). p The Board of Appeals will at said `time and place hear any and all per- Sworn t® before me this / 41, sons or representatives desiring to be heard in the above application or day of �,/yui�� 19 desiring to submit written state- ments before concludirzt, the hear- v 4 )G , u�� ing.Each hearing will not start ea / NOTARY PUBLIC,STATE OF NEW YUII{t er than designated. Files are NO.52 4u55242,SUFFOLK COUNTY able for review during regular Town Cy i CorvIViISSION EXPIRES AUGUST 31,18 Hall business hours (8-4 p.m.). If l you have questions, please do not hesitate to call(516)765-1809. Dated:April 12,1999 BY ORDER OF THE r - -- SOUTHOLD TOWN -- BOARD OF APPEALS GERA-RD P.GOEHRINGER CHAIRMAN - 1669-1TA15 FOR BOARD AND STAFF USE Updated New Information r OFFICE OF ZONING BOA RD OF A PPEA L 53095 Main Road Southold® NY 11971 (516) 765-1809 fax 765-9064 March 8, 1999 Fax Transmission and Regular Mai/ Re: Chapter 58-Public Notice for Thursday,Nfarch 25, 1999 Plearuig Dear Mr. Ham:` Please find enclosed a copy of the Legal Notice describing your recent application. The Notice will be published in the next issue of the L.I. Traveler Newspaper, the Town's official newspaper for 1998-99. Pursuant to Chapter 58 of the Southold Town Code (copy enclosed), formal notice of your application and hearing must be mailed and shall include a map or sketch showing the new location with the setbacks and use noted. Send this Notice, as soon as possible, with the map to all owners of land (vacant'or improved) surrounding yours, including land across any street or right-of-way that borders your.property. Use the current addresses shown on the assessment rolls maintained by the Town Assessors'Office (765-1937) or the County Real Property.Office in Riverhead. If you know of another address for a neighbor, you may want to send the notice to that address as well: Please submit your Affidavit of Mailing to us by the Friday before the hearing date, with the post office receipts postmarked. Later, when the green signature cards are returned to you by the Post Office, please mail or deliver them to us. If any signature card is not returned, please advise the Board at the hearing. You must post the enclosed sign no later than 3/18/99. Post the sign facing the street, no more than 10 feet from your front property line bordering the street. (If you border more than one street or roadway, a sign is enclosed for the front yard facing each one.) The sign(s) must remain in place for at least seven (7) days, and if possible, should remain posted through the day of_the hearing. If you need a replacement sign, please contact us. After the signs have been in place for seven (7) days, please submit your Affidavit of Posting to us for the permanent file. If you do not meet the deadlines stated in this letter, please contact us promptly. It may be necessary to postpone your hearing if the required steps are not followed. . Thank you for your cooperation. Very truly yours, ZBA Office F7 NOTICE OF HEARING NOTICE �S HEREBY GIVEN that a pubflc hearing wfli be held by the SOUTHOLD TOWN BOARD OF APPEALS at the Town H09 53095 Main Road, Southo�d, New York, concerning this property. OWNER(S) OF RECORM r 0 UrWA Af P rOd AJ DATE OF PUBLIC HEARING . If you have an interest in this project, you are invfted to voew the Town ffle(s) which are avaflable for inspection prior to the day of the hearing during normal busInes s days bet een the hours of 8 a® o and 4-p.m. BOARD OF APPEALS TOWN OF SOUTHOLD (516) 765-1809 NOTICE OF PUBLIC HEARING SOUTHOLD TOWN BOARD OF APPEALS THURSDAY, MARCH 25, 1999 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 a public hearing by the SOUTHOLD TOWN BARD OF APPEALS, at the Southold Town Hall, 53095 Main Road, Southold, New York 11971, on THURSDAY, MARCH 25, 1999 at the time noted below (or as soon thereafter as possible): 8:05 P.M. Appl. No. 4668 — SOUTHAMPTON LUMBER CORP. This is a request for a Variance under Article XXIV, Section 100-241-G, for permission to reinstate (re-establish) use as a lumberyard and related activities, which use is nonconforming in this Hamiet-Business Zone District. Location of Property: 13650 Main Road, Mattituck, NY; County Parcel No. 1000- 114-11-24.3. 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 concluding the, hearing. Each hearing will not start earlier than designated. Files are available for review during regular Town Hall business hours (8-4 p.m.). If you have questions, please do not hesitate to,call.(516) 765-1809. Dated: March 8, 1999. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN By.Linda Kowalski T�Mm Board of Appeafs 'a to the off pr*W"s MIP*a the north Side Of Molin %nd OppWAto the Portal bard A*& oat ifitt Pk*Ue QO*va*eftv Oad WeAbre WW404000 wul am be 04,OW *0 lop"Y est011"Od or Penafted as* of nalatbortw Pmerty W10 40101AS Witt be vera"Oftly.or zak�tidllyl*isd *ad the a, irli 0' Will 00t be-Oboerved. 04 w4tion by ar. M apiao oeeonde4 by Mr, 40rigarAg6 It was ftt JM*l* So$ 1" . Travoler S*reet. 394he Sew York., be 9"*04 Migslw toln an ba prem- isew vign Iftated in the noroosst qorp*r-of Itoke arty on Travater Street and deated vev=t"kaft to I ia Off pr"Owt 144 an the north aw of the wala Amd OPPMOO the 'rort of so$ wb1oh to an -talsee aftettomt Ago. The to 100"Mitostoft TMs AM-aftU W MmsW for oat year- wlble a written appitedlas to Uw Nftrd of Appeals. a. Two at" don bo saulool to ]MU, Oliba"Wal 16haftlos. 5"W14 TOWA zoalag Orftaaft 60-it,avotlao WAS". 4W�_ v MOUC 111SAMW Appol no. 1020 $00 -P.W. MO T.), Vpw ap#Uca- U"of 400wUmber nad 'weadwarking Co. R"4. watuttwuO s4w Y*Vh* ftw a OpWal 000POAM In 4,000rdame wah Ow X-ftift 00aft"'Me't Ara**lv"'' SoOlon 406 :90b"Itum Wt forpermigatea to V"tu a d4o wan 61911. LOMUOU of Prftwnyt "SOUM stae Main Aftdo __VWdlw*, Now,Vark-o bd"d"w4h, by'Matu Read, *set by UWftack Library. amft by K. R. ftevo. west by Ama -41twer. Tbe'Mairman opeaed the kwarta$by readIng the applicatWa ftr a sped al exe"twq, 14PI notee of hftrimew AM&VO att"tias to'ne Pubwooft tw the Omeial Re"Pap", *" valce; 16 Ako.appacallt'. CNAVWAX; to Iftwo anyaw pro*** vto wltsh*a to speak for thlo As I re**U ghere are to"* bual"9"9* NAROLD R. RRUVR; Two tAwlsooses. Rowe Lumber and ft"worktag A. geovo 4L 5" *mob to the cantroon" wit. Dumont Yea took sit the sigpo Ott the to"C save"I alpo 00,the et` to* 4"4. Soutba pro wA of Jammry 0. too? . A-ErM, W* nover have tiad any *WAS ka the Tawn of Riverboat d lead. tUg WO 08. We doett botteve td W. The one on the west si4e to the t' . 0" we have. TUEECIN AI. MAM All the rest are ewormial.4 ti RES"t It is not LrqmMat now'byt someday If Mrs. Obvorts houss 'ows. it will, it**4 out 404 rM ago see It. THS CHAIRWAX! Would you say this to the only Sign ffarlotd A. RCOVO & Sells he*. t to the buttoisc e"racung end of it. TPIS CHAMMAN: Does ouyuse w4ift to spftk against this appjtastjoa, _,kfter Uveatiptloft M4 ISOPOCUOU the 1kard A*" ftt the appollant roqueats T1&v1ftd1np *(thoNoar4 are t the &PI*Haat. bus two 4OPMto busts $ Gad the- at applied for to the caly ota* pUbItety displtyW by the kbrold It. Riove & Sm AvLOW of than bitstgess wMah cowerna itself With eO*r**tfAg- AceerO*cly, v*bvIteve.that graMts% this applicaUes WYA1 now =ak* all tip o sig" presently ea Me prqmrty entirety tool. Tho Scard ftda that the,P4441c conveate"o and welfare and jtvAlce will be amwed aud the leg&W adabUshed or paraftedgae of]A_O1ShWrMO4 PrOMMtr a44 OJOIsiog use distri0to *4 AM 4* permanaMly *r- oubsteattaUy'tojura4 and Ov spirit at the ord1wace -will be.observed. 04 ftotiob by Mr. Bergen. $* .ended by Mr. Oftlisplevi it was RESOLVED that Reeve 1.*n*er and:Woodworking Co.. in Read, UMamuck. Now York bo groaWd permtooten to reftin a Ade w*U sip *a a buildiag Uwated ca the MMM side of U414 Road, Mattituck. NOW'Yorkt -as applied for. is permission to granted oubject to the IbIlowliq cand6ims. 1. Tht, stga to mooted sub to all sqbseAueat changes is the Southold To Z*aiaw Ordkence as it applieti to stgais. A.- The sip Shaw -granted fok om year way,, renewable 44SUS ILY apon wrime appuestion tetbe Scar'd Ot'APP"Is. Vote of the board: Ayeao- Mr. 011hapie. Up, Vergen, Mr, Grig=ls. i i ° W. . ._ 4 pw W a 11.29'a, as e roc °;u. `d♦ .d A. .• • 2 ( •• • ,e R• 5) a ': e• ,�pp» �S. d 3.1 Qa e • I� • t •1 NN ,ry • d • : ° • �• PP d S%GN 0� ,0'�O °S a A;05' `I •.d • EpGE / I •d ', • . a379� `, 1 WIRE • d I ()1 d • i ° ♦ e • • d• ^r I • • t • AA y V d.. .. • •° • , H CE 1.7 W e • e •d • ad e G• . • . ♦ • .d •.• ♦ R LUMBER O 4 .,• •• d •. ° •d I ♦. . MR " • SCE d • ! p • • • m N • d• • .e • - H/,IA,N,�HpOIE .. • K:, .' .° d °' .36` L�'n .. ♦ d •' a •' �n`, .r d .• .d _ 2 .•' t ` '•,..'L 'V •1 A z d GRATE e 10 • d -2 .x. / . e'. 4 • : e ND 77 4 3' P'• MAST a ( • • �.;'. . • e •1 • sM Q ' •1 P d • ASPHA<T aVE • • . . ° ed . d J'•..'. .°A �, • • • ♦ .. _ d O • '•i _ ° .• • • ••. 'd' :•i.� ��'�yy amnt 4 9 a °. e da e' '()t.G Z .,' . P cs•0 • • e 11TIL ITY : e d •CON ''�•, '•y..' , w •UL � ♦ C� Vr 44 • 8.3 64.0. GATE /• ! •1 ;SMOLT • d• • .4 • `dZ'.•. 2 STORY BRICK BUILDING '; `, � ,'�.�:_.'.. . • . ' 4.♦ , . _d. . _ ..c ., d c:` e • d • 4 e r d • a GRgo ` • d m _ • �` SURVEY OF PROPERTY 1.4'E ' ° �. A. ° • a d , ° SI T UA TED A T ENCLOSED • • d •. • • • d 1 • e I_ �-GLASS ENTRANCE' •e.' •' � • • •: d a MATTITUCK A. e • 1 '��•` TOWN 0F SOUT H O L D ° • ° • ° ♦ • 1 d a BLDG. 4 :• • . 84:2' S.3w. SUFFOLK COUNTY, NEW YORK •f 4'• • • ° b - d ° S.C. TAX No. 1000- 1 14- 1 1 —24.3 Al a,�.''. •`., • •d• • + • • rn N SCALE 1 "-20' n •d• °• ° ♦ ° • d' ' NOVEMBER 30, 1998 e CHIMNEY t �;. `v'• ° a • • d d • e ti CHIMNEY a." ♦ ° • 44 4 C 7 o/L .,.., d e o AREA = 82,003.63 sq. ft. Ln �' ° d ° de d ♦DRAIN ♦ e• ° • It�� ..j.:• a .• ° ve a GRATe i d •e i� rrI rn e 4 ° • 0 CD a C d . a) - 44 '9 of d • ° ° • • R° • v v " d a • d • A O > •• ° • d .L • 171 • e • m,n, .s.•, ° ° ZA • e d e C w • g • a♦ ♦ • • 4 • • � • Zw ••d e' • • d ° • G� a p • e • d • . e • e • b ° N d a ° °d • d ° ' • ♦ "e • d ° a • d i. • d• d• •• 1 °° a .R.Z' £ ° 40J' ° • e fI • ♦ •0 C BLDG• • ° • a d 0C '" • • d• d `• • CHIMNEY CONC. BUMP I p!NG I « d • I ° I I I I zA I I n Z I DRAIN I n ^ z I GRATE I o sZ x Im I io T A f Zm1 I I I I I I o I I " o mILA (Tl m I I rn < N m o 6p' I I o z00 �• FENCE y� 1.7'N. 0.3'E. I I L4-CC (n O'° SCE I ALL 1.8'E• I ILD r D 7 4 W. I N p 79 O p2N 0.9 0 'o .'.: 0 �b•b'� N s,oC E MR F�' C�w CE O' oZ ZO zcs` 0 .: .' ', '•'..y,:" z�.'•'j I•".:n�t'::..:.: n�`L,� 5 0. ETICE cEoi 09-.- FENCE NK , II N n (C1 0. FENCE 3.1;s. e.e'N u FENS FENCE 1 ao o y z. �• :='!r FENCE D < FEN, STOCKADE .tog ':^; v (r� cE METAL '' PPOE ASS 6•E ',GONG.WPu 0.4'N. FEND P\PW � 5T0 BOX z 1.8'N 2` r 08 `\B�R 9oa1 C SCE e1 w p35E 02W CHAIN UNK FENCE 46.Z7f 7- W S D. ��+' w D N UNK o p'' W PS PER DE o S 790 47 00 0 o •t�6 0 11 g6 N 35.00 N F�3 5. 5 7 w 1 z m , 1, rn CO o w 'woe No ��02,20 0 Z 5 83•34 30 W o w� Ln ��-�. ' ON a'o S Nt0ED5TR N Ln N�iFREEVE o\ � W f� �,IGgT EDSTR O w o DAVID z,o O o 0 NE U' od, � & JA o o Lno O x v x �` -0 o 00 FOUND b i 134.42' GRANITE MON- S 87'19'40" W FOUND CONC. MON, UNAUTHORIZED ALTERATION OR ADDITION TO THIS SURVEY IS A VIOLATION OF SECTION 7209 OF THE NEW YORK STATE EDUCATION LAW. COPIES OF THIS SURVEY MAP NOT BEARING THE LAND SURVEYOR'S INKED SEAL OR EMBOSSED SEAL SHALL NOT BE CONSIDERED TO BE A VAUD TRUE COPY. CERTIFICATIONS INDICATED HEREON SHALL RUN ONLY TO THE PERSON FOR WHOM THE SURVEY IS PREPARED, AND ON HIS BEHALF TO THE TITLE COMPANY, GOVERNMENTAL AGENCY AND LENDING INSTITUTION LISTED HEREON, AND TO THE ASSIGNEES OF THE LENDING INSTI- TUTION. CERTIFICATIONS ARE NOT TRANSFERABLE. THE EXISTENCE OF RIGHT OF WAYS AND/OR EASEMENTS OF RECORD, IF CERTIFIED TO: ANY, NOT SHOWN ARE NOT GUARANTEED. CHICAGO TITLE INSURANCE COMPANY NORTH FORK BANK PREPARED IN ACCORDANCE WITH THE MINIMUM DENNIS G. SMITH STANDARDS FOR TITLE SURVEYS As D ADOISNED �� � BY THE LIA.LS. AND .PPROVED AND ADOPTED A. I n g C-Dr c r n o CHRISTINE M. SMITH FOR SUCH USE eY NEW YORK STATE LAND TITLE ASSOCIATION. �pN a .4 -- - � Title Surveys — Subdivisions — Site Plans — Construction Layout PHONE (516)727-2090 Fax (516)722-5093 N9TFo 6y0 OFFICES LOCATED AT MAILING ADDRESS N.Y.S. Lic. No. 4966E One Union Square P.O. Box 1931 Aquebegue, New York 11931 Riverhead, New York 11901 i 98-634