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Z� el�� ° 7 -Dec.. - A APPEALS BOARD MEMBERS o��gQfFO(,�c OG Southold Town Hall Gerard P. Goehringer, Chairman �� y� 53095 Main Road James Dinizio,Jr. y 2 P.O. Box 1179 Lydia A. Tortora • Southold, New York 11971 Lora S. Collins y'�O � ZBA Fax (631) 765-9064 George Horning Telephone(631) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD FINDINGS AND DETERMINATION September 20, 2001 Meeting Appl. No. 5001 — DINA MASSO 1000-111-13-4 Location of Property: 5705 Nassau Point Road, Cutchogue Date of Public Hearing: September 20, 2001 Findings of Fact PROPERTY FACTS: Applicant's property is located at Nassau Point in Cutchogue, and has 100.48 ft. frontage along the easterly side of Nassau Point Road. The property consists of 34,508+- sq. ft. in area and is improved with a one-family, one-story frame house with wood deck areas and cabana. The existing dwelling construction is more particularly shown on the survey prepared by Peconic Surveyors, P.C. dated January 23, 1989. BASIS OF REQUEST: Building Department's July 31, 2001 Notice of Disapproval for the reason that under Article XXVI, Section 100-244, and Section 100-242A, the proposed two-story addition and proposed structural alterations to a nonconforming structure on a nonconforming lot (with a conforming use as a dwelling) is not permitted unless the side yard is a minimum of 15, and having a total of thirty-five feet. AREA VARIANCE RELIEF: The applicant proposes to construct alterations and addition over the existing footprint and maintaining the same nonconforming southerly side yard at 10 feet, at its closest point, shown on the 11-17-00 plans prepared by Donald G. Feiler, R.A. REASONS FOR BOARD ACTION DESCRIBED BELOW: On the basis of testimony presented, materials submitted and personal inspection, the Board makes the following findings: 1. Grant of an area variance will not produce an undesirable change in the character of the neighborhood or a detriment to nearby properties. Applicant proposes to create a second-story addition over the southerly part of the existing one-story dwelling, following the footprint of the existing first floor one-story dwelling which has a preexisting nonconforming side yard from the foundation—except for an 80 sq. ft. area on the south/west side of the first floor which is conforming and is not subject to this variance request. The southerly side yard property line contains mature trees, where the addition is proposed, and provides a buffer between the properties. 2. The benefit sought by applicant cannot be achieved by some method, feasible for appellant to pursue, other than area variances because the existing side yard setback is nonconforming, and the applicant wishes to build a second story addition over the existing first floor foundation. 3. The requested area variance is not substantial and represents a variance for an area of 5 feet by 27.6 feet, or approximately 138 sq. ft. Page 2—September 20, 2001 ZBA Appeal No. 5001 —D. Masso 1000-111-13-4 at Cutchogue 4. The proposed variance will not have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. No evidence has been submitted to suggest that the physical or environmental conditions in the neighborhood would be adversely impacted by this addition as proposed. RESOLUTION/ACTION: On motion by Chairman Goehringer, seconded by Member Homing, it was RESOLVED, to GRANT the variance as applied for. Vote of the Board: Ayes: Members Goehringer (Chairman), Dinizio, Tortora, Collins, and Homing. This Resolution was duly adopted (5-0). ---------------------------- Gerard P. Goehringer Chairman FbECEIVF.D AND rTj_r,DTKF I /G//o / NOTICE OF PUBLIC HEARING SOUTHOLD TOWN BOARD OF APPEALS THURSDAY, SEPTEMBER 20, 2001 NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and Chapter 100 (Zoning), Code of the Town of Southold, the following application will be heard at a public hearing by the SOUTHOLD TOWN BOARD OF APPEALS at the Town Hall, 53095 Maim Road, Southold, New York 11971, on THURSDAY, SEPTEMBER 20, 2001, at the time noted below (or as soon' thereafter as possible): 6:55 p.m. Appl.No. 5001 - DINA MASSO. This is an Appeal fora Variance under Section100- 244B based on the Building Inspector's July 31, 2001 Notice of Disapproval regarding proposed additions/alterations to the existing dwelling at less than the required single setback of 15 feet minimum, and less than 35 ft.,total (combined) side yards. Location of Property: 5705 Nassau Point Road, Cutchogue; Parcel 1000-111-13-4. The Board of Appeals will hear all persons, or their representative, desiring to be heard at the hearing, or desiring to submit written statements before the conclusion of the above hearing. This 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 (631) 765-1809. Dated: August 31, 2001: GERARD P. GOEHRINGER, CHAIRMAN SOUTHOLD TOWN BOARD OF APPEALS Town Hall 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 FORM NO. 3 NOTICE OF DISAPPROVAL DATE: July.31, 2001 TO: Dino Masso 5705 Nassau Pt. Rd. Cutehogue, NY 11935 Please take notice that your application dated May 4, 2001 For permit to make additions/alterations to an existing single family dwelling at Location of property 5705 Nassau Point Rd, Cuthcouue, County Tax Map No. 1000 - Section 111 Block 13 Lot 4 Subdivision Filed Map# Lot# Is returned herewith and disapproved on the following grounds: The proposed addition/alteration to a non-conforming structure on a non-conforming lot is not permitted pursuant to Article XXIV Section 100-242A which states; "Nothing in this article shall be deemed to prevent the remodeling, reconstruction or enlar eg ment of a non-conforming_building containing a conforming use,provided that such action does not create any new non-conformance onincrease the degree of non-conformance with regard to the regulations pertaining to such buildings_" The existing non-confonning single family dwelling has a single side yard setback often(10) feet. and a total side yard setback of twenty-five (25) feet. Therefore, the proposed addition/alteration is not permitted pursuant to Article XXVI Section 100-244 which states that non-conforming lots between 20,000 and 39,999 square feet in total size, require a single side yard setback of fifteen (15)feet and a total side yardsetback of thirty-five 1351kg The proposed lot coverage is nine (9>percent. no Xta�-LQ,� Authorized i ature CC: file, Z.B.A. 110W14 OF�r�IU34iZ1Li� tsuu,lliNt3 rl xlvllt AYYLI4A'f1UN ( likC;KLI$ BUILDING DEPARTMENT 5 3 i Do y ve or need the following,before applying TOWN BALL i'' ✓ - `Board of Health SOUTHOLD, NY 11971 3 sets,of Building Plans TEL: 765-1802 n Survey E._.pxs .tirxXnTOt..1 Check Septic Form N.Y.S.D:E.C. _ Trustees Examined 120_ Contact:_ Approved 20 Mail to: Dwaa to &1lcyl- Disapproved a/c >r 16 9 2 (nhTr 1 TLCs- Phone: I Building Inspector APPLICATION FOR BUILDING PERMIT j Date 20_ INSTRUCTIONS a. Thisapplicaton MUST be completely filled in by iypewriter or in ink and submitted to the Building Inspector with 3 sets of plans, accurate plot plan to scale_Fee according to sc iedule. b. Plot plan showing location of lot and of buildings onpremises,relationship to adjoining premises or public streets or areas, and wdterways.' c. The work coveredby this application may not be commenced before issuance of Building Permit. d. Upon approval of this application,the Building Inspector will issue a Building Permit to the applicant. Such a permit shall be kept on the premises available for inspection throughoufthe work. e. No building shall be occupied or used in whole or in part for any purpose what-so-ever until a Certificate of Occupan is issued by the Building Inspector. APPLICATION IS HEREBY MADE to the Building Department for the issuance of a Building Permit pursuant to the Building Zone Ordinance of the Town of Southold,Suffolk County,New York, and other applicable Laws,Ordinances or Regulations,for the construction of buildings, additions,or alterations or for removal or demolition as herein described.The applicant agrees to coinply with all applicable laws, ordinances,building code using code,and regulations,;and to admit authorized inspectors;on premises and in building for necessary inspections. (Signature f plicant or name,if a corporation) . PO�,yc IG52 ✓�a�,Ti-f-zx-1� (Mailing address of applicant) State whether applicant is owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or builder R.C44 1 7' Name of owner of premises 01 N a rn*P- SSO (as on the tax roll or latest deed) If applicant is a corporation, signature of duly authorized officer (Name and title of corporate officer) Builders License No. PEfV of N y Plumbers License No. " Electricians License No. Other Trade's License No. 1. Location of land on which proposed work will be done: 5 70 5 N P-SS^O Rot W-1 , Rt p CU ?C HO$Z� t�>' House Number Street Hamlet County Tax Map No. 1000 Section Block_ Subdivision Prne-W0b'0MPcPJ6aF mA8Ss0 FbINT Filed Map No, 15Co- Lot 3q (Name) Z, State existing use and occupanc f premises and intended use and occuXf',y of proposed construction= a. Existing use and occupa--y .. 5 t N G Lha rpMYf t tet' bW SLL4 tVrR b. Intended use and occupancy S t f`t G Lb t M'1 t VyV O N an-AA NG 3. Nature of work (check which applicable): New Building Addition X Alteration Repair Removal Demolition Other Work (Description) Estimated Cost 1 CD, 0=, Fee (to be paid on filing this application) If dwelling, number of dwelling units Number of dwelling units on each floor If garage, number of cars If business, commercial or mixed occupancy, specify nature and extent of each type of use. Dimensions of existing structures, if any: Front ad Rear GO! Depth Height 2► ' Number of Stories i Dimensions of same structure with alterations or additions: Front 460 Rear 4.0' 2 Depth 3g! Height IS Number of Stories Dimensions of entire new construction: Front 3 2t Rear 'J2- Depth 3¢t Height , 25' Number of Stories 2 c Size of lot: Front 100 Rear 10c) Depth 3 55 t h 0. Date of Purchase 611g(83 Name of Former Owner 1. Zone or use district in which premises are situated '4 O 2. Does proposed construction violate any zoning law,ordinance or regulation: Np 3. Will lot be re-graded NG - Will excess fill be removed from premises: ES NO 57o'S 4. Names of Owner of premises DNA fnA!i50 Address NA16" Pr A0 Phone No. '7 54�- G.286 Name of Architect OD NwQ F*O t.BY*J-- Address�tN P�Ptlfl Rd` IZ01ione No Z`i'$ ' 64GS Name of Contractor " Address Phone No. 5. Is this property within 100 feet of a tidal wetland? *YES ✓ NO • IF YES, SOUTHOLD TOWN TRUSTEES PERMITS MAY BE REQUIRED 6. Provide survey, to scale, with accurate foundation plan and distances to property lines. PI-OT pt-AN o N ARtN. O W6S. 7. If elevation at any point on property is at 10 feet or below, must provide topographical data on survey. TATE OF NEW YORK). SS: :OUNTY OF �iu ( a tJP`L10 t fI L being duly sworn, deposes and says that(s)he is the applicant i, (Name of individual si iingLc�onntract)above named, i)He is the (Contractor, Agent, Corporate Officer,etc.) f said owner or owners, and is duly authorized to perform or have performed the said work and to make and file this application; iat all statements contained in this application are true to the best of his knowledge and belief; and that the work will be erformed in the manner set forth in the application filed therewith. wom to before me t ' Yy.�.t day ofw 20 0 � ry\lam Q � otary Public Signature of Applicant' LYNDA M.BOHN NOTARY PUBLIC,State of 4ew York No.01806020932 Qualified in Suffolk County. Term Expires March 8,20 OO?j FFor Office Use Only: Fee Assigned No. Sap( TOWN OF S UTHOLD, NEW YORK APPEAL FROM DECISION OF BUILDING INSPECTOR DATE OF BUILDING INSPECTOR'S DECISION APPEALED: ..... .......R.p .` `�J 7 1......... ........ T4 �/ `3 TO THE ZONING BOARD OF APPEALS: I(We) ....0.,s.,1'1.G�,,,Mtk 627- l3? of .. �. w.SSr Y...�J v..c � ....ri ppeilanf).. (Tel # �3i HEREBY APPEAL THE DECISION OF THE BUILDING INSPECTOR DATED WHEREBY THE'BUILDING INSPECTORDENIED AN APPLICATION DATED.... J..�J i t Permit to Build ` Z... `" FOR' ( ) REVED Permit for Occupancy C EI ( ) Permit to:Use ( ) Permit for As-Built AUG 23 2W ( ) Other 304rnord town Clerk 7 1. Location of Property ,.....05 N �.S, uv .... .,. ......... Zone _ i.. District 1000 Section.. \`...Block.\5.Lot(s) ..... ..................Current Owner.2.t.ht�.-..lMh-.�Su. I 2. Provision of the Zoning Ordinance Appealed. (Indicate Article, Section, Subsection and Pararaph of Zoning Ordnance by numbers. Do not quote the law.) Articl9XV Section,1100.�:IASub-Section .............. �XXVT00 3. Type of Appeal Appeal is made herewith for: i (X) A Variance to the Zoning Ordinance or Zoning Map ( ) A Variance due to lack of access as required by New York Town Law Chap. 62, Cons. Laws Art. 16, Section 280-A. ( ) Interpretation of Article .......... Section ."""" . . 100. ....... ( ) . ... ......................... ....................................... Reversal or Other. 4. Previous Appeal. A previous appeal (has) as not een made with respect to this property or with respect to this decision of the Building ns ector 9 p (Appeal#...... Year.......). REASONS FOR APPEAL JAddltional sheets may be used with applicant's signature)- AREA i nature -AREA VARIANCE REASONS.- (1) An undesirable ..;range will not be produced in the CHARACTER of the neighborhood ora detriment to n. rby properties, if granted, because: � (2) The benefit sougs by the applicant CANNOT be achieved by some method feasible for the applicant to Pursue, other than an area variance, because: D (3) The amount of reeller req,.Fiv7sted isnot bstantiaj b (4) The variance will NOT have an adverse effect or impact on the physical or environmental conditions in ; =a neighborhood or district because: Ave at-c- (5) Has the alleged difficult :green self-created? dd (L-Yfes, or ( ) No. This is the IINIMU th nes �zes�cisq and at th pm2 a rime preserved I Protect the characterof the neighborhood and the health, safety, and welfare of the d community. ( )Check this box if USE VAkUANCE STANDARDS j � completed and attached. Sworn to before me this y of. /.. 26I—t00 - (Signature of Appellant ppellant or Authorized Agent) (Agent must submit Authorization from Owner) ZBA A 08 00 Notc'V PP / KEME D.HDRRUE Notary Public.State of New York lourtY j a' °f_ P S T L t �A P TY CARD ✓'� - f OWNER STREET mo ,'-') ' VILLAGE DISTRICT SUB. LOT -- d ia - FORMER OWNER N E ACREAGE - S W TYPE OF BUILDINGr , RES. �� SEAS. VL FARM COMM. IND. CB. - MISC. }� LAND IMC'. TOTAL DATE REMARKS VQV W fes. [�v /4/ `P�3pZ o� c%a.e /,a ohe 7gml/y akin. // /� . 0 ti -th�9�� a/af33_o�r� /rr 74017a_i=,a' 0 0 17 D 6 ,1 Jeck k AGE B ILDING CO DlTIpN NEW NORMAL BELOW ABOVE 0 � - Farm Acre Value Per Acre Value — — -I r Tillable 1 Tillable 2 _ Ti{lab{e, 3 ------- I Woodland Swampland Brushland House Plot — — — -- — -- -- - — Total I 1p ) IS � I _ Q . w � g 7 --- M. M. Bldg. �` i 3 � — Foundation C�r Bath _ Tw6 — Extension 0 3�" Basement ` Floors Extension /7 yq' Ext. Walls_ Interior Finish J� � � Extension oC = � ��`�(� OrF}re Place at . Heart r..t/t3I Porch Attic Porch Rooms 1st Floor --- --i -- 6 J' / Aoydo Rooms 2nd Floor r — M' - - - -- - — Ga � 6' 3 \ --Driveway---- - - - 0. B. X60."ill'"I/I✓\.e � �.�b.J��L�..._. /-�� y �_ f r FtOA TLPEC'O�te. BA LOT �8 3 5 DOs y ti wig O -i Ir Z r awn. q u o o ry m • 242,TTS 780 36 20 ici: fly_ W Z S. woad I !') 2 -t i e � m j L OT 39- 3P r j 164.4� OQ 3 y!, Pien�Mtsx cKade' r� - g 40 . } S±URV EY OF 3 a i LOT. ,.• � L07 39 * "AMENDED MAP A , OF NASSAU POINT " }- FILED AUG. 16, '1922 FILE 1440. 156 AREA f '34 6108 'WFT. AT CUTCHOGUE TOWN OF SOUTHOLD I ��Pakp��" to lie -i(ae r crrFAW ra SUFFOLK COUNTY, N. Y. .° .µ, . 47MiA Abli'!r0 1000 , 111 013 - 04 t c WA rY ' '" 19 87 VR fr t •. . _ .. CCT. '17t19@B@' UN ?9, 1Yo8.(beton cAbsne d dock) FA Y/6JM�B5 -1797 .PffA lSAV LAW�hL r0 cbMty-WITH sw RrEft-AtT vi sr ^ . :A • n j APPEALS BOARD MEMBERS VF f0� O�Q �C� Southold Town Hall Gerard P. Goehringer, Chairman 53095 Main Road James Dinizio,Jr. o P.O. Box 1179 Lydia A.Tortora 4 Southold,New York 11971-0959 Lora S. Collins �,j, • �`F ZBA Fax(631) 765-9064 George Horning X101 �.a� Telephone (631) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD October 1, 2001 Mrs. Dina Masso 5705 Nassau Point Road yeaf Cutchogue, NY 11935 �9 0 Re: Appl. No. 5001 —Variance (Addition) Dear Mrs. Masso: Enclosed please find a copy of the Appeals Board's determination rendered at our September 20, 2001 Meeting. Please be sure to return to the Building Department (765-1802) to obtain a building permit before commencing any construction activities. A copy of the enclosed variance determination was today forwarded to the front desk of the Building Department for their file update in their Notice of Disapproval file. If you have any questions, please feel free to call our office, or the Building Department regarding your pending building permit application. Very truly yours, //1 a),&a, - GERARD P. GOEHRI Xe CHAIRMAN Enclosure Copy of Decision to: Building Department APPEALS BOARD MEMBERS S�FFO(,�c pG Southold Town Hall Gerard P. Goehringer, Chairmano� y� 53095 Main Road James Dinizio, Jr. ti P.O. Box 1179 Lydia A. Tortora ro • Southold, New York 11971 Lora S. Collins ZBA Fax(631)765-9064 George Horning l �a Telephone(631)765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD FINDINGS AND DETERMINATION September 20, 2001 Meeting Appl. No. 5001 — DINA MASSO 1000-111-13-4 Location of Property: 5705 Nassau Point Road, Cutchogue Date of Public Hearing: September 20, 2001 Findings of Fact PROPERTY FACTS: Applicant's property is located at Nassau Point in Cutchogue, and has 100.48 ft. frontage along the easterly side of Nassau Point Road. The property consists of 34,508+- sq. ft. in area and is improved with a one-family, one-story frame house with wood deck areas and cabana. The existing dwelling construction is more particularly shown on the survey prepared by Peconic Surveyors, P.C. dated January 23, 1989. BASIS OF REQUEST: Building Department's July 31, 2001 Notice of Disapproval for the reason that under Article XXVI, Section 100-244, and Section 100-242A, the proposed two-story addition and proposed structural alterations to a nonconforming structure on a nonconforming lot (with a conforming use as a dwelling) is not permitted unless the side yard is a minimum of 15, and having a total of thirty-five feet. AREA VARIANCE RELIEF The applicant proposes to construct alterations and addition over the existing footprint and maintaining the same nonconforming southerly side yard at 10 feet, at its closest point, shown on the 11-17-00 plans prepared by Donald G. Feiler, R.A REASONS FOR BOARD ACTION, DESCRIBED BELOW: On the basis of testimony presented, materials submitted and personal inspection, the Board makes the following findings: 1. Grant of an area variance will not produce an undesirable change in the character of the neighborhood or a detriment to nearby properties. Applicant proposes to create a second-story addition over the southerly part of the existing one-story dwelling, following the footprint of the existing first floor one-story dwelling which has a preexisting nonconforming side yard from the foundation—except for an 80 sq. ft. area on the south/west side of the first floor which is conforming and is not subject to this variance request. The southerly side yard property line contains mature trees, where the addition is proposed, and provides a buffer between the properties. 2. The benefit sought by applicant cannot be achieved by some method, feasible for appellant to pursue, other than area variances because the existing side yard setback is nonconforming, and the applicant wishes to build a second story addition over the existing first floor foundation. 3. The requested area variance is not substantial and represents a variance for an area of 5 feet by 27.6 feet, or approximately 138 sq. ft. 1 Page 2—September 20, 20C ZBA Appeal No. 5001 —D. Masso 1000-111-13-4 at Cutchogue 4. The proposed variance will not have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. No evidence has been submitted to suggest that the physical or environmental conditions in the neighborhood would be adversely impacted by this addition as proposed. RESOLUTION/ACTION: On motion by Chairman Goehringer, seconded by Member Horning, it was RESOLVED, to GRANT the variance as applied for. Vote of the Board: Ayes: Members Goehringer (Chairman), Dinizio, Tortora, Collins, and Horning. This Resolution was duly adopted (5-0). -- -------------------------------- ------------ Gerard -----------------------------G"'--------- Gerard P. Goehringer Chairman o�OS�fFO�,�coG ELIZABETH A.NEVILLE = y� Town Hall, 53095 Main Road TOWN CLERK y P.O. Box 1179 Z REGISTRAR,OF VITAL STATISTICS Southold, New York 11971 �y • �� MARRIAGE OFFICER Fax(631) 765-6145 RECORDS MANAGEMENT OFFICER -'/�l �a� Telephone (631) 765-1800 FREEDOM OF INFORMATION OFFICER OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD TO: Southold Town Zoning Board of Appeals FROM: Elizabeth A. Neville, Southold Town Clerk DATED: August 24, 2001 RE: Zoning Appeal No. 5001 Transmitted herewith is Zoning Appeal No. 5001 for Dina Masso for a variance. Also included is: Notice of Disapproval dated July 31, 2001; copy of Building Permit Application; copy of survey; Short Environmental Assessment Form; ZBA Questionnaire; Applicant Transactional Disclosure Form; and plans. AEELALS BOARD MEMBERS S�FFO1�► C�Gy 530951Main Road Town 1 Gerard P. Goehringer, Chairman James Dinizio,Jr. ♦ Co P.O. Box 1179 Lydia A. Tortora W Z Southold,New York 11971-0959 Lora S. Collins • ZBA Fax (631) 765-9064 George Horning oy'110,( a0� Telephone(631)765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD September 12, 2001 Mr. Gerald G. Newman, Chief Planner Suffolk County Department of Planning P. O. Box 6100 Hauppauge, NY 11788-0099 Dear Mr. Newman: Please find enclosed the following application with related documents for review pursuant to Article XIV of the Suffolk County Administrative Code: Appl. No. — 500 J= D i nU Ma SSo Action Requested: AdcA,4ons r- s BFic Volk-iQmce— Within 500 feet of: ( ) State or County Road Waterway (Bay, Sound or Estuary) ( ) Boundary of Existing or Proposed County, State, Federal land. If any other information is needed, please do not hesitate to call us. Thank you. Very truly yours, Gerar P. Goehripger, Chairman By: -, Enclosures " COUNTY OF SUFFOLK ROBERT J GAFFNEY +� ! SUFFOLK COUNTY EXECUTIVE OCT 2ONiAs ISLES, AICP DEPARTMENT OF PLANNING DIRECTOR OF PLANNING October 17, 2001 Town of Southold Zoning Board of Appeals Pursuant to the requirements of Sections A 14-14 to 23 of the Suffolk County Administrative Code, the following application(s)submitted to the Suffolk County Planning Commission is/are considered to be a matter for local determination as there appears to be no significant county-wide or inter-community impact(s). A decision of local determination should not be construed as either an approval or a disapproval. Annlicant(s) Municipal File Number(s) McNeill,Donald 4957 Hammel, Richard* 4974 Constan, Sam and Phyllis** 4984 Baylis,Ellsworth Jr.** 4987 Shannon,Kevin 4988 Gluckman, Richard** 4989 Martin, Barbara 4991 Carpenter, Patrick 4992 Maher,Ed and Eileen 4994 Fevola, Richard 4996 Masso, Dino 5001 *Alternative relief appears warranted consistent with appropriate developmental restrictions, particularly as set forth by the ZBA. **Premises should be encumbered by appropriate developmental restrictions,particularly as set forth by the ZBA. Very truly yours, Thomas Isles Director of Planning S/s Gerald G.Newman Chief Planner GGN:cc G:\CCHORNY\ZONING\ZONING\WORKING\LD2001\OCT\SD4957 OCT LOCATION MAILING ADDRESS H LEE DENNISON BLDG. -4TH FLOOR ■ P O BOX 6100 ■ (5 1 6) 853-5 190 100 VETERANS MEMORIAL HIGHWAY HAUPPAUGE, NY 1 1 788-0099 TELECOPIER(5 1 6) 853-4044 Southold Town Board of Appeals MAIN ROAD - STATE ROAD 25 SOUTHOLD, L.I., N.Y. 11971 TELEPHONE (516) 765-1809 ACTION OF THE ZONING BOARD OF APPEALS Appeal No. 3642 Application Dated June 15 , 1987 TO: Mr . Garrett A. Strang , R. A. [Appellant (s) ] as Agent for DINA MASSO Main Road , Box 1412 Southold , NY 11971 At a Meeting of the Zoning Board of Appeals held on August 20 , 1987 , the above appeal was considered, and the action indicated below was taken on your [ ] Request for Variance Due to Lack of Access to Property New York Town Law, Section 280-a [ ] Request for Special Exception under the Zoning Ordinance Article , Section [X ] Request for Variance to the Zoning Ordinance Article XI , Section 100-119. 2 [ ] Request for Application for DINA MASSO for a Variance to the Zoning Ordinance , Article XI , Section 100- 119. 2 to construct accessory boathouse structure with deck at the foot of the bluff , and deck and new stairs along and at top of bluff areas , all landward of existing wood bulkhead along Peconic Bay , premises known as 5705 Nassau Point Road , Cutchogue , NY ; Lot 39 , Amended Map A of Nassau Point Filed August 16 , 1922 ; County Tax Map District 1000 , Section 111 , Block 13 , Lot 04 . WHEREAS , a public hearing was held and concluded on July 16 , 1987 in the Matter of the Application of DINA MASSO under Appl . No . 3642 ; and WHEREAS , at said hearing all those who desired to be heard were heard and their testimony recorded; and WHEREAS , the Board has carefully considered all testimony and documentation submitted concerning this application ; and WHEREAS, the Board Members have personally viewed and are familiar with the premises in question , its present zoning , and the surrounding areas ; and WHEREAS, the Board made the following findings of fact : I . By this application , appellant requests a Variance from Article XI , Section 100-119 .2 of the Zoning Code for permission to construct accessory boat-storage structure at the foot of the bluff , landward of existing bulkhead , and to construct new stairway with landings in the adjacent area of the existing stairs , which will be removed , all as shown on plan drawn May 5, 1987 , prepared by Garrett A. Strang, Architect. 2 . The premises in question is known and referred to as Lot No . 39 , "Amended Map A of Nassau Point , " filed August 16 , 1922 , File No . 156 . The subject premises consists of an area of 34,508 sq , ft. with frontage along the east side of Nassau Point Road of 100 . 48 feet , and is improved with an existing one-story , single- family dwelling set back 39± feet from the top of bluff, 10 feet from the southerly side property line , 16± feet from the northerly side property line , and 154 . 5 feet from the front property line . (CONTINUED ON PAGE TWO ) DATED: August 20 , 1987. CHAIRMAN, SOUTHOLD TOWN ZONING BOARD OF APPEALS Form ZB4 (rev. 12/81) Page 2 - Appl . No . 3642 Matter of DINA MASSO Decision Rendered August 20 , 1987 3 . The accessory boat-storage structure is proposed to be 12 ' by 24 ' withl2 ft . open deck (for an overall length of 36 feet ) , to be placed along the edge of the bulkhead , on concrete tubings and C . C. A. treated posts into the ground three feet . The platform construction proposed at the top of the bluff is to be not larger than 10 ' by 15 ' . The stairs construction is proposed to extend from the top of the bluff (platform) down the bluff, with four landings , replacing the existing stairs immediately adjacent (to the north) . 4. Article XI , Section 100-119. 2 requires all buildin s and structures to be set back not less than seventy.-five (75} feet from a tidal water body , tidal wetland edge , or fresh- water wetland . 5 . Article III, Section 100-31 permits the establishment of an accessory use for storage purposes, and this application indicates such accessory use will be incidental and accessory to the residential use of the premises and not operated for gainful purposes , or habitable purposes, and will be used exclusively for storage of the ownerls boat and similar articles . 6 . In considering this appeal , the Board finds and determines : (a ) the relief requested is substantial in relation to the requirements ; however, the type of constru.ction of the proposed structures and uniqueness of the property 's elevations above mean sea level. lend to the granting ,of the relief as noted below; _ (b) the difficulties claimed are sufficient to warrant a granting of _the .variance applied,, with restrictions as noted below; (c ) the difficulties claimed are sufficient to warrant a granting of a variance ; (d) there is no other method feasible for appel - lant to pursue for the purposes stated in this ap.plication.; (e ) in view of the manner in which the difficulties arose and in considering all the above factors, the interests of justice will be served by granting the variance, as con- ditionally noted below. Accordingly , on motion 'by Mr,. Goehringer, seconded by Messrs . Douglass,- and Sawicki, it wash RESOLVED, to GRANT a Variance under the Provisions of Article XI , Section�100--119.2 in the Matter of,_ the Application for DINA MASSO under Appl_. No . 3642, for a new accessory boat-storage structure,__ stairs and upper platform more ,parti - cularly depicted on Site Plan prepared - by Garrett A. St.rang, - R. A. drawn May 5 , 1987 , a.nd SUBJECT t0 THE, FOLLOWING CONDITIONS: 1 . Foundation of boat-storage structure to be of spile Page 3 - Appl . No . 3642 Matter of DINA MASSO Decision Rendered August 20 , 1987 construction and self-supporting (not to be connected with existing bulkhead or existing spiles ) , to be a minimum of three feet back from the existing bulkhead , and to be con- structed in a fashion as not to cause erosion , raising if necessary ; 2 . Wood deck to be self-sustaining , also with spile construction in the ground and not anchored to bulkhead in any manner ; 3 . Stairs construction to be safe at all times and constructed in a manner as to aid in the prevention of erosion ; 4. Plantings under and around new construction as recommended by the Suffolk County Soil and Water Conservation District ; 5 . Boat-storage structure shall be free of plumbing facilities . No cabana or similar uses, no-- sleeping- or habitable facilities ; 6 . All lighting at ground level and shielded to the property . 7 . Existing posts (of construction to be removed ) shall be cut at ground level , and without excavation . Vote of the Board : Ayes : Messrs . Goehringer, Doyen , Grigonis , Douglass and Sawicki . This resolution was duly adopted . lk GERARD P . GOEHRINGER, AIRMAN Septemb,er J , '1987 RECEIVED AND FILED BY THE SOUTHOLD TOW14 UL_";. DATE �) HOUR ff-U S- 17 Town Clerk, Town of Southold Town Of Southold P.O Box 1179 Southold, NY 11971 * * * RECEIPT * * * Date: 08/24/01 Receipt#: 3323 Transaction(s): Subtotal 1 Application Fees $150.00 Check#: 3323 Total Paid: $150.00 Name: Masso, Peter& Dina 8 Fairway Lane Manhasset, NY 11030 Clerk ID: LINDAC Internal ID•39219 912-6 Dina Masso 8 Fairway Lane Manhasset, NY 11030 i AUG 2 4 2001 J LI�1 ` /8 Dpi✓` August 24,2001 Town of Southold Zoning Board of Appeals Town Hall Southold N.Y. 11971 To The Zoning Board of Appeals: AREA VARIANCE REASONS: First and foremost I need more space for my growing family. Twenty years ago this house was perfect but now my five children are adults, married and have children. I felt that if we raised the roof on part of the house we could get maximum needed space without detriment to near by properties or cause undesirable change to the character of the neighborhood. this addition would be hidden by trees between properties. If I extended on the East side of the house it would be to close to the bluff and if I extended on the West side it would have environmental impact. ( Trees would have to be removed.) Most of the changes will be internal and therefore will have no adverse effect on the physical or environmental conditions of the neighborhood. The house will not look very different on the exterior since we will keep the same roof line. I feel this addition is important to our health and would improve our quality of life. Th you, Dina Masso ♦ APPLICANT TRANSACTIONAL DISCLOSURE FORN 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 the town of possible conflicts of interest and allow it to take whatever action is necessary to avoid same YOUR NAME: M A S--S d -b. ) , t�`A i AV (Last name , first name , middle initial , unless you are applying in the name of someone else or other entity, such as a company. If so , indicate the other person ' s or company ' s name . ) NATURE OF APPLICATION: (Check all that apply . ) Tax grievance Variance Change of zone Approval of plat Exemption from plat or official map Other ( If "Other, " name the activity . ) Do you personally (or company,our through 9 Y P Y. spouse, sibling, i parent, or child) have a relationship with any officer or employee of the Town of Southold? "Relationship" includes by blood, marriage, or business interest. "Business interest" means a business, including a partnership, in which the tovn 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 the shares. YES NO If you answered "YES, " complete the balance of this form and date and sign where indicated. Name of person employed by the Town of Southold Title or position of that person Describe the relationship .between yourself ( the applicant ) and the town officer or employee. Either check the 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 the shares of the corporate stock or the applicant (when the applicant is a corporation) ; B) the legal or beneficial owner of any interest in a noncorporate entity (when the applicant is not a corporation ) ] C) an officer , director. , partner, or employee of the applicantf or D) the actual applicant . DESCRIPTION OF RELATIONSIIIP Submitted this day ofl�- ` Signature Print name_ 141041218TI—Text 12 PROJECT I.D.NUMBER 617,21 S 01 1 - I Appendix C State Environmental Quality Review SHORT ENVIRONMENTAL ASSESSMENT FORM For UNLISTED ACTIONS Only PART 1—PROJECT INFORMATION (To be completed by Applicant or Project sponsor) 1. APP NT/SPONSOR 2. PROJECT NAME C-7 ♦ (J " I a. PROJECT LOCATION: 1 Municipality SO,�' w County < {-frJ`k a. PRECISE LOCATION(Street addreaa and road Inlenectlona.prominent landmarks,etc.,or provide mapl S-)nS N PQ,"t Rd� S. Is PROPOSED ACTION: i Cl New 1 Exaansbn ❑Modlflcatlonlalteration I 6. DESCRIBE PROJECT BRIEFLY: j S� f Y ad�r�r .� o., (y T. AMOUNT OF LAND AFFECTED: n o Initially acres Ultimately i / a res S. WILL PROPOSED CT-ON COMPLY WITH EXISTING ZONING OR OTHER EXI:: STING LA USE RE NS? C3 Y43 No If No,describe briefly Q 7C 1 s'i`�•y� �•�—r J �i�v /' C i,S �(� r'C e t `�t.�r.-, 9. WHAT IS PRESENT LAND USE IN VICINITY OF PROJECT? (RI'lesidenllal ❑industrial ❑Commercial 0 Agriculture ❑Park/ForesUOpen space 0 Other Describe: /0. DOES ACTION INVOLVE}}}11l P€RMIT APPROVAL OR FUNDING.NOW OR ULTIMATELY FROM ANY OTHER GOVERNMENTAL AGENCY(FEOERA STATE OR IOCAIYN. �� '- ❑Yea If yes,list adeny(s)and permiVapprovals 11. DOES ANY ASP T OF THE ACTIZN HAVE A CURRENTLY VALID PERMIT OR APPROVAL? 0 Yes V If yer,1131 agency name and permillapproval 12. AS A RESULT OF PROPOSED ACTION WILL EXISTING PERMITIAPPROVAL REQUIRE MODIFICATION? 0 Yes ®No 1 CERTIFY THAT THE INFORMATION PROVIDED ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE A0011canustionsor name: l Vl�. Cate; Signature: It the action Is In the Coastal Area, and you are a State agency, complete Ine Coastal Assessmept Form before proceeding with this assessment OVER . _ r QUESTIONNAIRE FOR FILING WITH' YOUR Z.B.A. APPLICATION A. Please disclose the names of the owner(s) and any other individuals (and entities) having a financial interest in the subject premises and a description of their interests: (Separate sheet may be attached. ) B. Is the subject premises listed on the real estate market for L. sale or being shown to prospective buyers? { } Yes Ice-'ANJ No. (If Yes, please attach copy of "conditions" of sale. ) C. Are there any proposals to change or alter land contours? ( ) Yes 'CA No - D. 1. Are there any areas which contain wetland grasses? V) O 2. Are the wetland areas shown on the map submitted with this application? , 3 . Is the property bulkheaded between the wetlands area and the upland building area? Ie_5 _ 4. If your property contains wetlands or pond areas, have you contacted the office of the Town Trustees for its determination of jurisdiction? S_ E. Is there a depression or sloping elevation near the area of proposed construction at or below five feet above mean sea level? tj A- (If not applicable, state "N.A.") F. Are there any patios, concrete barriers, bulkheads or fences which exist and are not shown on the survey map that you are submitting? +-,o v,�_ If none exist, please state "none." G. Do you have any construction taking place at this time concerning your premises? v o If yes, please submit a copy of your building permit and map as approved by the Building Department. If none, please state. H. Do you or any co-owner also own other land close to this parcel? o _ If yes, please explain where or submit copies of deeds. I. Please list present use or operations conducted at this parcel ; lu resiand proposed use �-1 )�; Au r ed . i4na tore and Date 3/87, 10/901k *toAo t4lc '5 AY 38 3 00 --T LE 1peco Vol r- rn fr E 0 8+ 36 ZO t I sty j,"40 - r-, Z L O'T 39 UT 5A.A Z, oo Ike 0 j SiUR V E Y OF 150 i LOT 39 "AMENDED MAP A OF NASSAU POINT S. FILED AUG. 16, 1922 FILE NO. i'56 AT CUTCHOGUE AREA 34, 508 S0.FT. TOWN OF SOUTHOLD foof +Ewe to *0 440 SUFFOLK COUNTY, N. Y. 0404 K4M 1000 - 111 00 04 R SCALE I" - 30'- FAB. 3 . 1987 acr. I?", two AN 84 &dft*j 1797r to emn v,wm ter nvt raw-AL mm�a-,- - COR BOARD AND STAFF USE Updated New Information �11Y5. Ma so - L ( � b/Gt 6'f 17OG J ZONING BOARD OF APPEALS TOWN OF SOUTHOLD.NEW YORK -----------------------------------------------------x In the Matter of the Application of AFFIDAVIT OF (Name of Applicants) MAILINGS CTM Parcel #1000- ---------------------x 1000----------------------x COUNTY OF SUFFOLK) STATE OF NEW YORK) I, residing at i New York, being duly sworn, depose and say that: On the day of , 200 , 1 personally mailed at the United States Post Office in , New York, by CERTIFIED MAIL, RETURN RECEIPT REQUESTED, a true copy of the attached Legal Notice in prepaid envelopes addressed to current owners shown on the current assessment roll verified from the official records on file with the ( ) Assessors, or ( ) County Real Property Office , 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. (Signature) Sworn to before me this day of , 200 i (Notary Public) 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. r•. `v ZONING BOARD OF APPEALS - TOWN OF SOUTHOLD:NEW YORK In the Matter of the Application of AFFIDAVIT OF SIGN (Name of Applicant) POSTING Regarding Posting of Sign upon Applicant's Land Identified as 1000- ------------- ----- COUNTY OF SUFFOLK) STATE OF NEW YORK) I, residing at New York, being duly sworn, depose and say that: On the day of , 200 , 1 personally placed the Town's official Poster, with the date of hearing and nature of my application noted thereon, securely upon my property, located ten (10)feet or closer from the street or right-of-way (driveway entrance) -facing the street or facing each street or right-of-way entrance;* and that 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 (Signature) Sworn to before me this day of , 200 . (Notary Public) *near the entrance or driveway entrance of my property, as the area most visible to passersby. Chapter 58, NOTICE OF PUBLIC HEARING [HISTORY: Adopted by the Town Board of the Town of Southold 12-27-1995 as L.L. No. 25-1995. Amendments noted where applicable.] § 58-1. 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 She 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 back not more than ten (10) 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 his/her agent shall file an affidavit that s/he has complied 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 from the property included in the application. Such notice shall be made by certified mail, return receipt requested, posted at least seven (7) days prior to the date of the initial public hearing on the application and addressed to the owners at the addresses listed for them on the local assessment roll. The applicant or agent shall file an affidavit that s/he has complied with this provision. RANSMISSION VERIFICATION REPORT TIME 09/05/2001 15:45 DATE,TIME 09/05 15:42 FAX NO. /NAME 15163657426 DURATION 00:02:31 PAGES; 05 RESULT OK MODE STANDARD ECM ZONING BOARD OF APPEALS TOWN OF SOUTHOLD:NEW YORK In the Matter of the Application of "D AFFIDAVIT - OF SIGN (Name of Applicant) POSTING Regarding Posting of Sign upon Applicant's Land Identified as 000--1000- -------------------------------------------x ------------------------------------------x COUNTY OF SUFFOLK) STATE OF NEW YORK) I, [boot oc Lp2 residing at (oap d/g JU 71N NA.Tn 7ucv-- , New York, being duly sworn, depose and say that: On the 1► day of 5m:pT. , 2001 , 1 personally placed the Town's official Poster, with the date of hearing and nature of my application noted thereon, securely upon my property, located ten (10) feet or closer from the street or right-of-way (driveway entrance) -facing the street or facing each street or right-of-way entrance;* and that I hereby confirm that the Poster has remained in place for ven days prior to the date of the subject hearing date, wh A4te s shown to be (Signur } Sworn to before me this a` day of 200- (. SALLY BIADOS Notary Pubic.State of New Yak No.47998.rr5 _/2_ (Nota Public) *near the entrance or driveway entrance of my property, as the area most visible to passersby. ■ Complete items 1,2,and 3.Also complete A. Recei y Please Prin I �BDatefiof Dery item 4 if Restricted Delivery is desired. Y ■ Print your name and address on the reverse so that we can return the card to you. C. Sig to ■ Attach this card to the back of the mailpiece, X ET Agent or on the front if space permits. ❑Addressee D. Is delivery address different from item 1? ❑Yes 1 Article Addressed to: If YES,enter delivery address below- ❑ No 5cN u L- z 3. Service Type A Certified Mail ❑ Express Mail n p ❑ Registered ❑ Return Receipt for Merchandise "� CJ ❑ Insured Mail ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number(Copy from service label) -70 9 9 340a © I S 8 6 Z4- 6844- PS Form 3811. n Receipt 102595-99-M-17e9 UNITED STATES POSTAL SERVICE First-Class Mail Postage&Fees Paid USPS Permit No.G-10 • Sender: Please print your name, address, and ZIP+4 in this box • DONAW 0.FEILER • ARCHITECT 11725 MAIN ROAD, P.O. BOX 1692 MATnTUCK, NEW YORK 11952 11 11111Ifill I I II I J I I I it 1111I11oil I III i I I I I I III I I IJi Ili IIII ■ Complete items 1,2,and 3.Also complete A. Received by(Please Print Clearly) B. Date of Delivery item 4 if Restricted Delivery is desired. ■ Print your name and address on the reverse so that we can return the card to you. C. Signature ■ Attach this card to the back of the mailpiece, X ❑Agent or on the front if space permits. Addressee D. Is delivery address diff m R Yes 1 Article Addressed to: If YES,enter delivenss belo j ❑ No 011CHACL AuUuP ROVOINCT .`Az� rnT '' v 1-kD65 W 3. Service Type D5certified Mail ❑ Express Mail 13 Registered ❑ Return Receipt for Merchandise ❑ Insured Mail ❑C.O.D. 4 Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number(Copy from service label) 70gq 3400 ops 8; 62-`f PS Form 3811,July 1999 Domestic Return Receipt 102595-99-M-1789 UNITED STATES POSTAL SERVICE First-Class Mail Postage&Fees Paid USPS Permit No. G-10 • Sender: Please print your name, address, and ZIP+4 in this box • G.FEIIFR • ARCHRECT ? MAIN ROAD, P.O.BOX 1692 Ti1TUCiC NEW YORK 11952 t COMPLETE •N COMPLETE THIS SECTION ON DELIVERY ■ Complete items 1,2,and 3.Also complete A. Received by(Please Print Clearly) B. Date of Delivery item 4 if Restricted Delivery is desired. ■ Print your name and address on the reverse C. Sig u so that we can return the card to you. ❑Agent X ■ Attach this card to the back of the mailpiece, or on the front if space permits. `;14 14 ❑Addressee D. elivery anie ❑Yes 1 Article Addressed to: I ES,ente ❑ No e-,C,I P a� AsTP2t-na -CT"E�l 3. Service Type Q I 1► V Certified Mail Exprs it ❑ Registered ❑ Re urn Receipt for Merchandise ❑ Insured Mail ❑C.O.D. 4 Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number(Copy from service label) _ `7_ q=T�. CQ:( -.8 2 4 �° 037 -.r Ps A�� :luly1999��f� Domestic Return Receipt 102595-99-M-1789 UNITED STATES POSTAL SERVICE First-Class Mail Postage&Fees Paid USPS Permit No. G-10 • Sender• Please print your name, address, and ZIP+4 in this box • DONALD G.FEILER • ARCHITECT 11725 MAIN ROAD,P.O.BOX 1692 MANTUCK NEW YORK 11952 R , J. F. :tr�y^sy�ti6+li�� � iiA _ rbc Town $aiit a} 'pub-? fou Wing, aPPIL_.; t. bA-h bard 'by thea I-00ARD-OFA V � fiown Hatt,53tl�3>" wWAX s OUR th6,ltiiss ote�t thefeaiter as possi-. .•rFPI..`N : 443' Dtr� .est_for-a ie Dw,Wing" QUt)1.;1!ii�tice-of� d b. T;izca�en=of P.t6 y= lij�h Lane_ -fang Si c i'4 d),: k*:ceF ic�49 S T fcfeation . !Colt OCT •: �-DAA � - `' 'Fhiti is a�ij _ -� �:,�to►t .-tai. _ { , _ i i 1 f L 1 wmbined side yards; P.O.Box 11 L '"G A L S... rage exceeding 20% Southold,NY 11971-09 w previous page of the tob_,__.vocation of Property: 2036-1TS6 140-31tn.b based on the owners' 3655 Bayshore Road, Greenport; request for structural renovations in Parcel 1000-53-6.15.- fATE OF NEW YORK an accessory building (rather than 7:50 p.m. Appl. No. 4928 - titie main building)for occupancy as MICHAEL COLAVPPO. Applicant )SS: the owners office, noted in the requests a Variance uader Article III, OUNTY OF SUFFOLK Building Inspectors June 20, 2001 Section 100.32, based on the Notice of Disapproval.Section 100- Building Department's December DUQ .1S Of Mattituck, in said 31C2.b provides for accessory office 15,2000 Notice of Disapproval for a )un ing duly swom, says that he/she is Principal use incidental to the residential use proposed addition and alteration to of the premises when carried on in an existing dwelling,which exceeds erk of THE SUFFOLK TIMES,a weekly newspaper,pub- the Dain Building by the residents the Code limitation of 2-1/2 stories. ihed at Mattituck in the Town of Soudmid County of them.Location of Property North Location:6150 Main Bayview Road, side of Central Avenue, Fishers Southold;1000-78-4-44.2. uffoik and State of New York,and that the Notice of which Mand; Town of Southold; Parcel 8:00 p.m.Appl.No.4995-PETER @annexed is a printed copy, has been regularly pub- 6:50 and VALERIE LEONIAK.This is a P 6:50 p.m. Appl. No. 4992 - request for Lot Waivers under ;hed in Said Newspaper once each week ]lAMUCK CARPENTER.This is an Section 100-26 to unmerge three lots identified as Parcel #000-98-1-17, 'r- weeks succe ivel , commencing Appeal for Variance under Section � y IW244B based on the Building Parcel #1000-98-1-16, and Parcel the Ieapeetors July 16, 2001 Notice of 1000-98-1-15. Location of Property: day DiWProval regarding the location Pine Tree Road and Bittersweet 20 Of a Proposed addition to dwelling at Lane, Map of Nassau Farms, less than the required 35.feet from Cutchogue. - hNRISTINATVERER te Ifnt property line.Location:235 8.10P m.ELLSWORTH BAYLIS Public,Stdcc; m Yo - No.01WE60:,1554 Orchard Road, Southold; Parcel JR.This is an Appeal under Section Gvaldn c in Sul,;;,County 14004&2-21. 1 Rb&2.21- 100-31A, based on the Building Lc„..i,.. Er lies 4ece.rn ipr i3 nci�I Pal Clerk 6:55 p.m.Appl.No.5001-DINA Inspectors October 31,2000 Notice WASSO. This is an Appeal for a of Disapproval for aproposed acces Variance under Section 100-244B sory storage building on a vacant lot. NOm t0 before m@ tills based on the Building Inspectors Section 100-31A does not provide for iy of 20�L 2001 Notice of Disapproval a storage g building as a PrinciPal n3C on a vacant lot:Location e,P e ert g proposed additibns/altera- 6425 Indian Neck Lane, P F y tsYuslo the existing dwelling at less �nic; dm the required single setback of 15 Parcel '1000-86-6-21 containing f-t minimum, and less than 35'ft. 11,214 sq.ft. total (combined) side yards. 8:20 p.m. BRIARCLIFF SOD, Location of Property: 5705 Nassau INC.This is an Appeal under Section Point Road,Cutchogue;Parcel 1000- 100-33 based on the Building 111-�34. Inspectors May 2, 2001 Notice of 7:00 p.m. Appl. No. 4996 - Disapproval for proposed Lot 1 and RICHARD FEVOLA. TNs is an Lot 2 with a total land area of less Appeal for a Variance under Section than the required 80,000 sq.ft,in this 100-244B based on the Building Proposed subdivision project. The Inspectors July 27, 2001 Notice of lots which are being created are Disapproval regarding the location located in the R-80 Residential Zone of proposed additions and alterations District.Location of Property 24.97 to existing dwelling at less than a sin- acres extending off the north side of gle side yard of 15 feet and less than Leslie's Road and off the south side 35,feet total side yards, at 2200 of Main Road(S.R.25)in Peconic; Broadwaters Road,Cutchogue;Par- Parcels 1000-85.3-12.2;1000-97-10-1. -11000-102-9-14. 8:25 p.m. ROGER and LESLIE 7:10 ,p.m. Appl. No, 4990 - WALZ•(Carryover from prior hear- NORTH BAY PROPERTIES.This is ing calendars.) This is an Appeal an Appeal for a Variance under requesting a Variance under Article Section 100-239.4A based on the XXIV, Section 100-242A, based on Building Inspectors May 29, 2001 the Building Inspectors May 2,2001 Notice of Disapproval regarding the Notice of Disapproval.The Notice of proposed location of a swimming Disapproval states that"the existing pool at less than the required 100 feet structure has a nonconforming set- from the top of the bluff or bank of back of three feet from the easterly the Long Island Sound.Location of side lot line and 9.9 feet from the Property: 8869 Oregon Road, west side line,and as a result,the sec- Cutchogue;Parcel 1000-83-1-33. and-story addition represents an 7:20 p.m. Appl. No. 4989 - increase in the degree of noncon- RICHARD GLUCKMAN.This is an formity. Location of Property:2505 Appeal for a Variance cinder Section Old Orchard Road, East Marion; 100-32 based on the Building Parcel 1000-37-6-5. Inspectors June 1, 2001 Notice of 830 p.m.Appl.No.4927-KACE Disapproval regarding the height of LI,INC.This is an Appeal requesting a proposed dwelling for the reason a Reversal of the Building Inspect- that section 100-32 restricts the max- or's Notice of Disapproval dated imum height to 2-172 stories. August 13,2001,denying an applica- Location of Property:4630 Orchard tion for a building permit for two. Street,Orient;Parcel 1000-27-3-7.8. family dwellings under Article IV, 7:30 p.m.Appl.No.4991-BAR- Section-100-42A.2.The-reason stated BARA J.MARTIN,This is an Appeal in the Notice of Disapproval is that for a Variance under Section 100-32 the proposed project indicates sever- based on the Building Inspector's al two-family dwellings on a single May 1,2001 Notice of Disapproval Parcel,and that the Code allows only for a proposed lot area of less than one such structure per lot as a per- the required 80,000 sq.ft.in this pro- mitted use. Zone District: Hamlet- posed subdivision project. The lot Density(HD).Location of property: which is being created is located in South Side of North Road (a/k/a the R-80 Residential Zone District, C.R.48)(now or formerly referred to and the remaining lot is located in as "Northwind Village"site),500+- the R40 Residential Zone District. feet east of Chapel Lane,Greenport; Location of Property: 2.43 acres Parcel#1000-40-3-1. located along the westerly side of The Board of Appeals will hear all Boisseau Avenue, Southold;Parcel Persons, or their representatives, 1000-55-5-15, desiring to be heard at the hearing, 7:40 p.m.Appl.No.4994-ED and or desiring to submit written'state- EILEEN MAHER-This is an Appeal meats before the conclusion of the for a Variance under Section100- hearing referenced above. Each 242A and Section 100-244B, based_ hearing will not start earlier than the on the Building Inspectors July 27, time designated above. Files are 2001 Notice of Disapproval. available for review during regular Applicants are proposing structural Town Hall business hours(8-4 p.m.). alterations and additions to existing If you have questions,please do not dwelling, and a Disapproval was hesitate to'call(631)765-1809. issued because the degree of non- Dated:August 30,2001. conformance is increased with regard GERARD P GOEHRINGER, to the nonconforming side yards and CHAIRMAN lot coverage. The new construction SOUTHOLD TOWN areas under consideration are shown BOARD OF APPEALS with:(a)a setback at less than 10 feet TowdHall on one side y ,C!dard,(b)setbacks at less 53095 Main Road :ll.l...i Jl•y ZONING BOARD OF APPEALS TOWN OF SOUTHOLD-NEW YORK -----------------------------------------------------X In the Matter of the Application of AFFIDAVIT M r SSCP OF (Name of Applicants) MAILINGS CTM Parcel #1000- - - -------_—_–_—___----------------------x COUNTY OF SUFFOLK) STATE OF NEW YORK) I,�DE)j\� residing at Gt,E; ,f6 L f, C�'j FYI pcc ( New York, being duly sworn, depose and say that: { On the lb day of , 200-1, 1 personally mailed at the United States Post Office in , New York, by CERTIFIED MAIL, RETURN RECEIPT REQUESTED, a true copy of the attached Legal Notice in prepaid envelopes addressed to current owners shown on the current assessment roll verified from the official records on file with the A Assessors, or ( ) County Real Property Office , for every property which abuts and is across a public or private street, or vehicular right-of- way of record, surrounding the appli property. (Signature) Sworn to beforp me this 1 d= , 200) tws - JOYCE M.1MUC Notary Public,State of New York No.4952246,Suffolk County ONMary Public) Term Expires June 12, a o a Z 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. pP,� 06w �Y ►�X,afJ M+�'� (J`� �I �U It ►- �z -2 ,2 by Ar►g S• A� W r- f LpNT-S ]8a couomovs � A 4� N Y(DP-L CDzs MVUM'1:x.1[+`ta r.-J L qZ- Keg41.1d W 1:491kTi1_1I4;1:103:11a Ln Er -0 HAUPPAUGE, NY 11788 Postage jEE'34 ru U�1 CO Certified FeePostmark Return ReceiptFee AJR (Endorsement Required) S[D �� Restricted Delivery Fee C1e4• KUH C3 (Endorsement Required) .� Total Postage&Fees $ 3.94 1'tl Recipient's Name(Please Print Clearly(t be completed Zmail� ----e----�T------�o �------------- y " S Er Street,A t.No. or PO Box No. --------------------------- '� -N Pte" � City,S a e,ZP+4 111 - • • - KIRA al i W 1:1 OWAMM140341:A N to J° FARMINGDALE, NY 11735 j Postage s 0.34 UNIT ID: 0952 c13 Certified Fee ,,•}_•10 k Return Receipt Fee 1.50 (Endorsement Required) �1L QRestricted Delivery Fee erk:: KZJR• -IA_ (Endorsement Required) LSP v.L M Total Postage&Fees $ 3.94 09!140 M Recipient's Name(Please Prrnt Clea (to be by mailer) --------- Cr Street,Apt.No,or PO Box No. Er G 2 3'3 M -----I----P�1l- ►�W-------- --- ------------------------------- City,State,ZIP+4 `` Fo+R i N 6 0 14 11-735 ,,, M& �WOMP11Wa11re s m -° WOOUMEREz NY 11078 Postage AQ4 ru /y � Certified FeePostmaReturn Receipt FeeO Fere� (Endorsement Required) (;jM Restricted Delivery Feb : K_•O (Endorsement Required)C3Total Postage&Fees O M Recipient's Name(Please Print Clearly)(to be completed by mailer) M -----t=R-cv00�-s----- NuLtZ 111- � '' Er Street,Apt.No.,or PC Box No. Er -----I6-----0P- ------------� O City,State,ZIP+4 I( AF O� 1 1�4Siii[Sasns Wei 41.4d121461►yi/_1In0.1XO 2 CO MANHASSETt NY 11030 34 (rL Postage $ 0. U0952 cccc Certified Fee ? ► Return Receipt Fee 1, ^ H �- (Endorsement Required) r y O Restricted Delivery Fee C1e '• KZ.JR- E:3 (Endorsement Required) V C3 3Total Postage&Fees $ 3. /10l0���� � lot .l Rl Recipient's Name(Please Print Clearly)(to be c y mailer) N-------- O— Street,Apt.No.,or PO Box No E=1 --------SQL P.-0Pd------------------------------ c,�yMs� M 030 EVUR3120MRAW TIM-re: CIO —D NEW YORK, NY 10025 ru Postage $ 0.3+ UNIT IU: 0452 Co Certified Fee 2•10 T Plerk: tmarku'7 Return Receipt Fee1•JO(Endorsement Required)O Restricted Delivery Fee K O (Endorsement Required) RQ� Total Postage&Fees $ "9' �1 200 S m Reci tent's Name(Please Print Clearly)(to Co to y mailer) n V AN ---- ------------------------'-T--------- ------ --- - ----- ---------- O Street,Apt No or PO Box No i�A °rX88 Co um �S 6� I X77 ,4.d. o -- City,State.ZIP+4 --------"--------'- ------ Yoe.g- i ti4y 100957 �JJ OFFICE OF OARD OFAPPEALS 53095 Main Road Southold, NY 11971 (631) 765-1809 fax (631) 765-9064 September 4, 2001 Re: Chapter 58— Public Notice for Thursday, September 20, 2001 Hearing ChI�a� Dear Sir or Madam: Please find enclosed a copy of the Legal Notice describing the recent application. The Notice will be published in the next issue of the Suffolk Times. Pursuant to Chapter 58 of the Southold Town Code (copy enclosed), formal notice of your application and hearing must be now mailed with a map or sketch showing the construction area or variance being considered. Send the enclosed Notice CERTIFIED MAIL, RETURN RECEIPT REQUESTED, on Monday, September 10th, or sooner, including a copy of a map showing your project area, 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. When picking up the sign, a $15 check will be requested for each metal stand as a deposit. If you already have a sign and stand and only need the laminated printout for the face of the sign, an additional deposit is not necessary and we can mail or fax a print out to you. Please post the Town's official poster/sign no later than September 13th, 2001. Securely place the sign on your property facing the street, no more than 10 feet from the front property line bordering the street. (If you border more than one street or roadway, an extra sign is furnished for each front yard.) The sign(s) must remain in place for at least seven (7) days, and should remain posted through the day of the hearing. If you need a replacement sign, please contact us. By September 13th, please submit to our office your Affidavit of Mailing (copy enclosed) with parcel numbers noted for each, and return it with the white receipts postmarked by the Post Office. Later, when the green signature cards are returned to you by the Post Office, please mail or deliver them to us (but not later than the date of the hearing). If any signature card is not returned, please advise the Board at the hearing. On or about September 19th, 2001, and after the signs have been in place for seven (7) days, please submit your Affidavit of Posting to our office. These will kept in the permanent record as proof of all Notices. (Please feel free to return the metal stands to our office for a return of your deposit.) If you do not meet the deadlines stated in this letter, please contact us promptly. Thank you for your cooperation. Very truly yours, ZBA Board Members and Staff Enclosures DINA MASSO VARIANCE for ADDITIONS — MAINTAIN EXISTING SIDE YARDS 1000- 111 - 13-4 THURS , SEPT . 20T" - 6 : 55 P . M . FULA- a Southold Town Board of Appeals MAIN ROAD - STATE ROAD 25 SOUTHOLD, L.I.. N.Y. 11971 TELEPHONE (516) 765.1809 ACTION OF THE ZONING BOARD OF APPEALS Appeal No. 3642 Application Dated June 15 , 1987 TO: Mr . Garrett A. Strang , R. A. [Annella:nt (,$) ] as Agent for DINA MASSO Main Road , Box 1412 Southold , NY 11971 At a Meeting of the Zoning Board of Appeals held on August 20 , 1987 , the above appeal was considered, and the action indicated below was taken on your [ ] Request for Variance Due to Lack of Access to Property New York Town Law, Section 280-a [ ] Request for Special Exception under the Zoning Ordinance Article , Section [X ] Request for Variance to the Zoning Ordinance Article XI , Section 100-119.2 [ ] Request for Application for DINA MASSO for a Variance to the Zoning Ordinance , Article XI , Section 100- 119. 2 to construct accessory boathouse structure with deck at the foot of the bluff , and deck and new stairs along and at top of bluff areas , all landward of existing wood bulkhead along Peconic Bay , premises known as 5705 Nassau Point Road , Cutcho-gue , NY ; Lot 39 , Amended Map A of Nassau Point Filed August 16 , 1922 ; County Tax Map District 1000 , Section 111 , Block 13 , Lot 04 . WHEREAS , a public hearing was held and concluded on July 16 , 1987 in the Matte"r of the Application of DINA MASSO under Appl . No . 3642 ; and WHEREAS, at said hearing all those who desired to be heard were heard and—their testimony recorded; and WHEREAS , the Board has carefully considered all testimony and documentation submitted concerning this application ; and WHEREAS, the Board Members have personally viewed and are familiar with the premises in question , its present zoning , and the surrounding areas ; and WHEREAS, the Board made the following findings of fact : 1 . By this application , appellant requests a Variance from Article XI , Section 100-119 .2 of the Zoning Code for permission to construct accessory boat-storage structure at the foot of the bluff, landward of existing bulkhead , and to construct new stairway with landings in the adjacent area of the existing stairs , which will be removed , all as shown on plan drawn May 5., 1987 , prepared by Garrett A. Strang, Architect. 2 . The premises in question is known and referred to as Lot No . 39 , "Amended Map A of Nassau Point, " filed August 16 , 1922 , File No . 156 . The subject premises consists of , an area of 34,508 sq , ft. with frontage along the east side of Nassau Point Road of 100 . 48 feet , and is improved with an existing one-story , single- family dwelling set back 39± feet from the top of_ bluff, 10 feet from the southerly side property line , 16± feet from the northerly side property line , and 154 . 5 feet from the front property line . (CONTINUED ON PAGE TWO ) DATED: August 20 , 1987. CHAIRMAN, SOUTHOLD TOWN ZONING BOARD OF APPEALS Fo-rm ZB4 - (rev. 12/81) Page 2 - Appl . No . 3642 Matter of DINA MASSO Decision Rendered August 20 , 1987 3 . The accessory boat-storage structure is proposed to be 12 ' by 24 ' with12 ft. open deck (for an overall length of 36 feet ) , to be placed along the edge of the bulkhead , on concrete tubings and C. C .A. treated posts into the ground three feet . The platform construction proposed at the top of the_ bluff is to - be not larger than 10 ' by 15 ' . The stairs construction is proposed to extend from the top of the hlulf W atf^rml H^wn the hluff, with four landings . replacing the existing stairs immediately adjacent (to the north) . 4. Article XI , Section 100-119. 2- requires all buildin s and structures to be set back not less than seventy.-five (75}q feet from a tidal water body , tidal wetland edge , or fresh- water wetland . _. 5. Article III, Section 100-31 permits the establishment of an accessory use for storage purposes, and this application indicates such accessory use will be incidental and accessory to the residential use of the premises and not operated for gainful purposes , or habitable purposes, and will be used exclusively for storage of the owner's boat and similar articles . 6 . In considering this appeal , the Board finds and determines : (a ) the relief requested is substantial in relation to the requirements ; however, the type of construction of .the proposed structures and uniqueness of the property `s elevations above mean sea level-. lend to the granting of the relief as noted below ; _ (b) the difficulties claimed are sufficient to warrant a granting of the variance applied,, with restrictions as noted below; (c ) the difficulties claimed are sufficient to warrant a granting of a variance ; (d ) —there is no other method feasible for appel - lant to pursue for the purposes stated in this ap.plication_; (e ) in view of the manner in which the difficulties arose and in considering,_ all the above factors, the interests of justice will be served by granting the variance, as con- ditionally noted below. Accordingly , on motion by Mr. Goehringer, seconded by Messrs . Douglass,-and Sawicki, it was_ RESOLVED, to GRANT a Variance under the- Provisions of Article XI , Section.. 00=119 .2 in the Matter of_ the Application for DINA MASSO under Appl . No . 3642, for a new accessory boat-storage structure,._ stairs and upper platform more parti - cularly depicted on Site Plan prepared - by. Garrett A. Strang, . R. A. drawn May 5 , 1987 , and SUBJECT TO THE FOLLOWING CONDITIONS : 1 . Foundation of boat-storage structure to be of spite Y t• Page 3 - Appl . No . 3642 Matter of DINA MASSO Decision Rendered August 20 , 1987 construction and self-supporting (not to be connected with existing bulkhead or existing spiles ) , to be a minimum of three feet back from the existing bulkhead , and to be con- structed in a fashion as not to cause erosion , raising if necessary ; 2 . Wood deck to be self-sustaining , also with spile construction in the ground and not anchored to bulkhead in any manner ; 3 . Stairs construction to be safe at all times and constructed in a manner as to aid in the prevention of erosion ; 4. Plantings under and around new construction as recommended by the Suffolk County Soil and Water Conservation District ; 5 . Boat-storage structure shall be free of plumbing facilities . No cabana or similar uses, no._ sleeping_ or habitable facilities ; _. 6 . All lighting at ground level and shielded to the property . 7 . Existing posts (of construction to be removed ) shall be cut at ground level , and without excavation. Vote of the Board :. Ayes : Messrs . Goehringer, Doyen, Grigonis , Douglass and Sawicki . This resolution was duly adopted . lk 10 GERARD P . GOEHRINGER, ,AIRMAN $eptemb.er 1 , 1987,_ , o i t , j GW 1415 - F4-o 4-c5 cW 145 � Q Ln j r Vol{ j II 1 v ; aw 14 5 - \ --� f I / / n t N 4 4, 4 FtI7`;:) mj 11 t UP 1� -7• CN� d - ., j � , 1�-C-tri'• 1 �' r�r-► -� I �..J i �, ! `' � i j ��l .�F_i.F.moi � ,� :^- i � � �'� CCl t I 1 � � •{ _.f J ' � C' � � i ADT H �= G I C (4` G 145 -3. i ' ' RSR•� V r ' 1 �„ l �r. ^rte.. '-^•h F ,( . o �� n J ID T-I LE r --_.,....,_____ �..._._. '`�l�►-t til t T V 1 � r. r- WA i-L_ tv ovN; F17.Tu �or�` �> cot - �v T1o� QSJ�1N_E S P E_C I F I C A T 1 0�� .,1 XI'a> - t,46_1-'�0 'tib,<�3y✓ � �f' r i _ CONCRETE IE�IASONRY t W t 1. Concrete strength: 2500 psi @ 28 days. i z 1 /L 0 - uT1- 2. Concrete footings to bear on undisturbed soil, min. bearing 2 ton psf. �`- r - v OUT t_ T- k p,�_ Gtyt; _ _ 3. Concrete shall not be placed when air temperature is below 40 degrees F. or when concrete temperature 1s less than 50 degrees F. r � �T�,r, Cr ROUGH & FINISH CARPENTRY - - � _ — v c _ �--- tl 1. FRAMING LUMBER: Douglas Fir No. 1 & No. 2, 1400 fb (repetitive), TN ! m t I E = 1.Ox1Os. Double floor joist under parallel partitions and around �., ��o n o ' �- all openings. d- T S L�ontrc�� j l EX~s �'a�� O%,-C.. T=)LQ- '� "t� �`�- 2. ENGINEERED LUMBER: Georgia-Pacific 2.0E G-P Lam LVL. »,< 3. PLYWOOD: CDX, INT-APA, exterior glue. Nr-_v' r f �-3 2' g�"'` -r�"{`� 4. WALL FLASHING: Aluminum. -k • < E.Xt 5. INSULATION: Exterior Walls, Roof/Ceiling, Floor- fiberglass batts with 1 .�-'(• !;�'�! �� c'"�• �` '� s NCW G v� ! vapor barrier, heated stile; n `,e I mr- ��, 4+ w > o Interior walls - R -11 sound control batts, unlaced. ' 2>< �� tom' �� ;1 -�j _ 6. BUILDING PAPER: Walls -Tyvek Housewrap; Roof- 15# Felt. ,� - I ~` _�� •' 7. ROOF SHINGLES: Organic Asphalt, type & color to match existing. 9 p Yp 9 8. RIDGE VENT: Cobra plastic mesh - continuous over rake overhangs. U { J N j 9. VERTICAL SIDING: 1x6 Cedar, t & g, V joint, No. 2 or better. 7 �/ cc �C, -r.-t. '� 10. EXTERIOR WOOD TRIM: Clear White Pine. To :�uovtva+or -t`to 11. GUTTERS & LEADERS: Baked white aluminum, 5"x3-1/2" gutters; j - , ,A = r- 1 2x3 corrugated leaders, with concrete splash pan, 1 �,,, , p�Ta p✓ , ��-c�, ,v='�t.� 12. INTERIOR WOOD TRIM: Clear White Pine to match existing; r�1 , �- --� 1" x 4" base, 1" x 3" door &window casing. ." ._... - f ` xTAk MI-P�4 t^�'% tt 1-ct3 -C>? 13. GYPSUM BOARD: 1/2 tapered edge; moisture resistant at Bath Rooms. �F : 34 J tea - F 10 - o'' �+) 14. CLOSET SHELVING: 3/4" Plywood, A-A, with hardwood edge; Clothes: 1 -18" shelf and hangrod; Linen: 5 shelves, full depth. ! - 10 P L WINDOWS, DOORS & SRYLaIGHTS �X t�T 1 t`16_1 , i FyS� F �DCJ ( ADO 5F 1. WINDOWS: Andersen, white, High-Performance glass and screens. �`•�x-- � ' r r -r F t-o o^, p fi 1 o r-> �D 2. INTERIOR DOORS: Birch veneer, solid core. `�1 �'�✓ �� �^- C' ! i{J` •[ �O S F� r 3. HARDWARE: Schlage, A Series, style and finish to be selected; 0 s� Interior Doors -A40s Privacy Lock; Closet Doors -A10S Closet Latch. 0 -2 UJ II I - - _ .. .;-- � I � I I j � ' I ( � I- _' - -- :'..� 1 ...f. i �: ! j � I l � Q __� _ _ _ __ _ ' iii I cl -; � � . '� �.�-=� � � I �, , , i � . - � � �.� f � i , ll , l � I� l � ; lil , , , ll � ; i , , _ , � 11 � < < , � ! _ \J-:3c' —7� !' \ 11i \ ' I ! (;. � I � � ,'1 � �\� �I ', I _ - � � � � � i � ' ' i � I i t ! i � � � ' I �\I ( i i � ' � � i ; I I i } ' F-C)F- F-V 15T. LL--J t Ft .. f iii I 1 �f % it i � ( - j , i fc ( } f ! 1 ! ! r J AJ ........*.......... T- 4-- 1-2 -rcn T 141 -T G. L U KA S6 4-1 Y, LI LJ I L 2), V% L I-(')V' 'r:I A T I L! t�-T' C- C Ld I - I 1- � ' i 1 t �t i� ,T wan L E-\/ LT -4 C;) FINISHES ' 1 EXTERIOR SIDING: 1 Coat Olympic stain. Ld 2. EXTERIOR TRIM: I prime coat, 1 coat satin enamel latex paint. 3. INTERIOR: DRYWALL: 1 prime, I coat finish coat enamel latex paint. �.i — 4. INTERIOR DOORS & TRIM: stain, 2 coats polyurethane, satin finish. ELECTRICAL E N ERCMCM 1 ELECTRIC SERVICE: existing service to be maintained, no change. r"' Building Design by Thermal Racing Method. Electric meter to be relocated as required. Construction,equipment.materials&installation to conform to the New York State Energy Conservation Construction code. 2. LIGHTING FIXTURES: as selected by Ow6er. Compliance will require that the total thermal rating of the 3. TELEPHONE & CABLE: jack locations as shown on Drawings. building envelope design shall be no less than zero. 4. BATH EXHAUST FAN/LIGHT: Nutone QT100FL, switch separately, �"t-�Ik Thermal duct to exterior. Area U-value Rating Table 5. ELECTRIC HEATING: decentralized, perimeter baseboard units, WIC f- Net Walls I C�e5 11*= .0+ 4. RJ b-I E with thermostat at each room. Glazing —40 G-1E Doors - PLUMBING- 1. Roof,'Ceiling + 4 r"- Z E f; Skylights Floors 60 ')4 0 4-4 E 1. PLUMBING FIXTURES: to be selected; provide shut off valves on all water lines at all fixtures. Shower faucets to be T-0" above floor. —T-t, be I t7TI W-1 Total Thermal Rating of Building Envelope 7Z: 2. DOMESTIC WATER SUPPLY: connect to existing water line. 3. SANITARY SYSTEM: connect piping to existing. To the b,�A of by knowledge,belief and professi nalludgme 7"'1 �V7 these plans are in compliance with this code. 1-14-0; ; 8' 2AM;NOrtr)roo Grumman ;516 346 0007 Poet-lt?,Fax Note 7671_ Date To. From�`-�'. COdDeP� &V OV aur4VjO_ Co. PO Box 1825 J phone 3/-aLs l8bf : Phone#S9& 3 GDt (2325 North Sea Drive) Fax-#1,31: 7,65 9® Fax# 5!C� �� oto Southold,New York 11971 13 January,2003 Ms. Lydia A. Tortora, Chairperson JINN 14 Southold'Town Board of Appeals Town Hall 53095 Main Road Southold,New York 11971 Re: 1)Elbow East Restaurant Sports Bar Application;Zoning Board of Appeals Meeting: 16 January 2002 Dear Ms. Tortora and Members of the Board According to The Suffolk Times- George Tsunis, attorney for the Elbow East Owners has said that the restaurant has been losing money because it was rezoned residential in the-late `80s and that constitutes a hardship. Let's accept that as true for the moment. If it is true, then it must also be true that the present owners knew what they were buying as they purchased Elbow East only a few yearn ago, or the present owners,lacked business savvy and were very naive in their purchase, or they had-plans/expectations of how they would alter non-conforming business, in a non-conforming building, in a non-conforming lot in a residential zone. But if hardship is an accepted rationale to allow a non:conforming entity to become more non-conforming, I have a proposition to,present. Since I.have owned my,;property-on,North Sea Drive next to McCabe's Beach, my taxes_have raisedsteadily-pres'enrir g a-hardship to rhe. Therefore ,as I am next t6the Town Beach, I would;like,to sell ice cream cones from my ,home. Non-conforrizing'-,`yes; absurd,- of course,. but following the same hardship rationale presented by Elbow East;if should be allowable. I am not trying.to.,be-flippant, but it makes no,sense!to,allow this request in anyway. A Stffolk Times Editorial of February 14, 2002 said'it very simply: "To put it in the most basic terms, two wrongs don't make a right." My concern'is,simplymaintaining'property value. Considered solutions, should not affect my equity. I understand I.have an��obligation'to conform to the various Town Laws and Building Codes - which were a significant influence in�my`purchase in Southold Town, and which are in place to maintain my property value.'The Board,a'iso,has a responsibility to insure that any action considered is not detrimental to affected parties.'Residential property owners on North Sea, Leeton Drive and Kenney's Road have the potential to lose much more than a restaurant, which 1-14-03; S:02AM;NCrth^op Gruinvan .516 313 C007 r ' could be sold to a third party once a variance is approved — leaving the area residents with the problems. A Sports Bar on North Sea Drive, to utilize Boards terminology: would not"preserve and protect the character of the neighborhood, and the health, safety, [and] wetfare of the community. " There appears to be is absolutely no benefit whatsoever to granting this petition other than increased unwanted activity and additional cost to the Town for the expected Police patrol presence required along North Sea and at the Town Beaches in the area. The petition must be disapproved in its entirety! As I am sure you have seen before, a petitioner many times camouflage their final intended purpose in a veil of overly exaggerated request with the expectation that a ZBA will compromise and approve some of the request. In this case. there should be no approval/compromise whatsoever. The building, business and lot are non- conforming and any approval will only lead to additional issues—now and in the fixture. Respectfull submitted, ohn . Betsch JAN 1 4 2 11/18/2-002 16:50 5164850956 ARLINE AND KEN R1CHR PAGE 02 UMMIENNOMCAUICIAMN P.O.Hon8o1 SOUTHOLD,NY 11971 OV tJ �i J. ' F—?�r �ftit J it Nowmber 14,2002 I t__ J Ch6rnw and Members of the Southold Zom Boyd of Appeals, The owners of Cliff's Elbow East have submitted an application to expand their restaurant. Nowhere in this revised site plan is it indicated what use the addition would be put to. All that is shown is a footprint. Originally, plans were to enlarge the waiting room and enhance the bathrooms. Now before you are plans to not only enlarge the restaurant but the bar area as well. They want to increase total area by 49.6%. Keep in mind that this is a non-conforming building, non-conforming use in an R-40 district. This restaurant was once a small seasonal shack that catered to summer beach patrons with hamburgers and hot-dogs. It has certainly expanded oder the years and recently, the current owners have turned it into a year round business. How many times is a variance given,to alter and add to a non conforming building in a non conforming use in an R-40 district? There are 43 parking spots noted. How many spots will the wait staff and kitchen help occupy? To even suggest additional overflow commercial parking at Kenney's Beach Parking Lot (listed under ?Municipal) is outrageous. Zoning Board Members, to permit any addition will spoil the integrity and character of our neighborhood and the quality of life, as we know it, would be destroyed. We, the members of the Kenrney"s Beach Civic Association therefore, urge you to deny°this application. Chairman end f,1ertmhc;rti of the Scy d/ming Board of Appeal%, The owners of Cliff s Elbow East have submitted an application to expand their restaurant. Nowhere in this revised site plan is it indicated what use the addition would be put to. All that is shown is a footprint. Originally, plans were to enlarge the waiting room and enhance the bathrooms. Now before you are plans to not only enlarge the restaurant but the bar area as well. They want to increase total area by 49.6%. Keep in mind that this is a nun-conforming building, non-conforming use in an R-40 district. This restaurant was once a small seasonal shack that catered to summer beach patrons with hamburgers and hot-doss. It has certainly expanded over the years and recently, the current owners have turned it into a year round business. How many times is a variance given to alter and add to a non coriforming building in a non conforming use in an R-40 district9 There are 43 parking spots noted. How many spots will the wait staff and kitchen help occupy' To even suggest additional overflow commercial parking at Kenney's Beach Parking Lot (listed under Municipal) is outrageous. Zoning ,board Members, to permit any addition will spoil the integrity and character of our neighborhood and the quality of life;, as we know it, would be destroyed. We, the members of the Kenney's Beach Civic Association therefore, ur(-7e Vnu to denv Chic nnn1izt;, + F,ACSZMTLE TRANOMITTAL FORM Date . T ime PLEASE nELIVFR THE FOLLOWING PAGF:SS TO: r City/state : FAX From: 1=4 40 COMMENTS : _ 4 ua�.hb..� o \ Ll._,.� l_. / l � S SI � ( �V' a I 4 � S 1` 1 r� I`— �,r ��•— lam, � r��J�L_w� r�`.—.;.�� � �—i-+----,..,� — •/I s t�.� ,..,,r' �„.,— ..,,,-....—____ We are t'-ansmi.tting pages , ( i nc liA inq this lead sheet ) if transmission is riot Complete, pleaso':� call ; FAX Telephoae No . : ( 51.6 ) - _ _ 11/18/2002 16:50 5164850956 ARLINE AND KEN R1CHR PAGE 01 FACSIMILE TRA14SMIT'1AL FORM Date : Time .4, t. . - PLEASE DELIVER THE FOLLOWING PAGES TO : Name City/State : FAX Number: t{ C k From: �' t �(t s �a -X COMMENTS. �r We are transmitting � pages, (including this lead sheet ) If transmission is not complete, please call : PAY On-- -arnr• KENNEY'S BEACH CIVIC ASSOCIATION !'s) 1s �Kxl "'(W I l IS)I.I) N" I!'i 71 Novembei 14, 2002 282 North Sea Drive Southold, NY 11971 November 17, 2002 Mr. Gerard P. Goehringer,Chair 'T Board of Appeals Town of Southold NO`J 2 53095 Main Road PO Box 1179 Southold NY 11971-0959 '` 4 Dear Mr. Goehringer, Thank you for the opportunity to once again address the concerns we have regarding the Elbow East expansion. When my father was growing up in Mattituck many years ago, he often remarked on the uniqueness of small town living_ Pmx4gh tune-has-passed,-ft~h Fork sttll4etains-nwc-h-ef ft neighborly, small town character. Therefore, I do not envy you the challenging task at hand. It must be difficult to address an-apphcatiw4nade b"41i0 schoot friend who-owns-a4estaurant you patronize. It is fortunate for us that you have many years on this board. You have had to address many such situations.You surely have had the ep i#y to honer ability#o-snake impartial decisions. As much as Mr. Berliner claims he wishes to keep a "family restaurant,"from where we are, we see the "happy hour"efowd inefeasing. We doiwt-wish-to be dodging, trucksand vans in the middle of the afternoon, 7 days a week. We do not want the residential area of Kenney's Beach to be comprornised-in any-way. The-large-expansion he requests-(app;-49%, though the actual area figures,-before and after, have not been consistent) includes a much expanded bar/lounge area...not family dining area.--A baNle�As for drinking and barAxminess creates the greatest profit. The original request was for waiting area and bathrooms, not bar and lounge. Handicapped people can dine-in4hetground-level-afea. If a lift is needed it follows that the ground level area is to be used for another purpose... bar/lounge trade? What bank would provide financing to a business- hat is-not profitable? The representative from the Southold Town Business Alliance and the gentleman from Goldsmith's Marina both commented on how hard it is to-run-a-business especially in tic-4knes. It would not be in anyone's interest to expand a struggling business. However, we question the financial report...we see the volume of business. #the profit-inafgin is not eneugh,—#here the business as it was-a seasonal family restaurant that did not have LOTTO, QUICK DRAW and satellite TV. These are the accoutrements of a bar! It is-rnerally-unacceptable4o propose a family restaurant plan, when the stage is being set for a large bar. The bartender at the Elbow East is the very one who said that the owners-were planning for-a large speds-bar-type extension. Our strictly residential area doesn't need that. I would also like to know the numberef bar-STOOL-S-,fiet-seats. When-one-stands-at a bar, there are usually 1-2 people standing-for every stool. So we could possibly have 70 people in the non-dining area. And, the seating capacity presently does not-meet-Board-of Health regulations....our owners still need to pass muster with them. The planning board says the parking is strained at 43 spots. We could conceivably ave-up to 50-70 peeple-in the non- dining area (bar/lounge)and 98 in the dining-room. For the many times these numbers might occur, where do the vehicles park? Do they park onf -Sea, south and-north,-se-fesidents;- G - local traffic, emergency vehicles, etc. can't get through? -Or-just-use the beach-lot;-as-suggested by the applicant? — As far as Mr. Tsunis' real estate figures obtained from Andrew Stype are concerned, they were non-specific to a large area.- My-broker-#fom+4ahn ReWty told me4hat'Wes! -ray-real estate value is negatively impacted by the restaurant as would all houses in the area to different degrees. And what the future-rostaur-ant's impaetoeuld be with t is prop sed aflsiora�s anyone's guess. It certainly would not increase our values in any way. How could any non- conforming business in a residential-ama'crouse yeur-reskkm aal real estate-vakie-? In conclusion, if a waiting area/foyer and enhanced bathrooms were requested at a work session back in 2001, then room-enough for these sh considered,--no-niece,-no less. This business has had-4 expansions recorded at Town Hall. The property is only so big. And the residential taxpayers ofA(enney'-s-Beach should note-Mid to the econorr♦ic a.W.1 f this nonconforming business,-which has functioned as a well known, popular restaurant for more than 40 years! Let's keep it-a#archly-res#aurantinri#1,a-M waiting reerr+and adequate restrooms.....not an expanded-bar/lounge! Sincerely, Patricia A�Frappe Member, Board of Directors Kenney's Beach Civic.Asso aq-- 4 _ Date: October 10, 2002 Southold Town Zoning Board of Appeals Main Road --m - Southold, New York 11971 Re: Petition Signatures in Support of Elbow East Expansion Enclosed are twenty-five pages of signatures in support of the expansion plans. Please place these additional sheets in our file. 7Thnkyo T. Rutkowski Elbow East' 5� Member_of the-Board-of_2-oning Appeals Town.of_Southold: Town- Hall` Southold, NX. 11-971 Petition in Supped of Elbow East Restaurant Elbow Fast Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA{American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. We the undersigned support the proposed renovation and expansion. NAME ADDRESS -,zf= Lon= 2. 3. 171 4. 6. f ox sCcoMc /Uy 11C15117. ✓ S �-� 8. 10. fI c4, 1 l TV 12. c cam, 00 13. S pq 7l I-Iy5 15. l ` f 40 Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. We the undersigned support the proposed renovation and expansion. NAME ADDRESS 2■ 3. I 4■ 5. 6. 7. 1 P '34 Lr 6 14 �� X11 tyk 13■ ( rCW11aL, 14. Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate-itsxexisting restaurant. Ude the undersigned support the proposed renovation and expansion. ; NAME ADDRESS 2. 1. 9W6 1611-4 C/f 77 Vill a 3. e V 11),A'I-, 1;-,r r Vv.,— (03 g8':z � 9■ b/zt vc- O �f < <`U �' � �i+..�a�✓ ' � 5 r/'4C°� 11.�lbhnr. 4 ' bb-e�2 yOq�r Ole Jule- 6a,7-e hta* fucff 13. S 3 y fo 71 14. DDR al' 15. '7 II ! • r. Member of the Board of Zoning Appeals Town of Southold Town Hall 0 Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. We the undersigned support the proposed renovation and expansion. NAME ADDRESS old ) ' t 04 ac 2. - (Al 3. ek (ear Is Z 76 A P16 a&-e 4. Z�LL210 0 add 5. tk'- ` v 7. b 1 r v G 8. 9. ��. ►� 10. IN 12. - 1 �jr 1 I 14. l ' 15. <. q '/0 0 YA S4 rem ((q qq 40 Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. we the undersigned support the proposed renovation and expansion. NAME ADDRESS 11t_1 4-1- 2. r h b err 5. Ca 3 7. �i s 8. 10/. - ` - 12. C� o 1 VD e Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. We the undersigned support the proposed renovation and expansion. NAME ADDRESS ';Z� 0 2.::7�C9,O-- Co-o p AX 3. -mac 4. Cel° o -9,-,6. ji��lp A—Z�rr,4 11,*� oA-JuVr Lv1qowijVtkr�'f �t 7. � vt� � 8. Lim kV 9. % d Al fid. ,Iv s' 10. eQ sci [-v� 12. F ` Cu 13. k �. n (r ;,Le—j e-,,14. lC9�j . 48 Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Suppott-Of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. we the undersigned support the proposed renovation and expansions NAME ADDRESS Wc� �jyji 2 �-_ G �- duo 5. A I 'Jd'bld 7 93 8. .4 A 9. 1" ?7 13. JO 14. 15. - d r 1 ' 40 Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act)compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. we the undersigned support the proposed renovation and expansion. NAIVE ADDRESS . 2 0 WC C4 u'� 2. L o c S, 4. � n 7. K ren v S Sri#161C� 8. 9. 10. 13. E vll PKO 46o's LA 1VArr r 14. �/ �� Member of the Board of Zoning Appeals Town of Southold �Uoliik . 11971 Petiti6 Su ort of Elbow East Restaurant , 4 ,1 Elbow h Restaurant is seeking to renovate and expand its restaurant by appr ately 1300 square feet to create new ADA(American Disability Act) co cant bathrooms, a new enclosed dining room for smokers a44 to comp( renovate its existing restaurant. We the undersigned supV- roposed renovation and expansion. NAME ADDRESS 2.71 �- o 5. 4 . i len 1 6 UP, Pe-� 7. 9ANa RE'S 10. ,97 11. ./ 13. f ,ate �- 15. c� i i Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. We the undersigned support the proposed renovation and expansion. NAME ADDRESS 2. 3. Pa,-t (-I q�95 O-Duj 4-4 led old 4. �- r i - Sy te �ic�1 c�, //97/ 5. 6' -YI al�l 0A P o Q s lUy 119 7. .3 19 s�-- 8. 9. '��- I& 10. 97D CP-r qW1KP3VO do k � L4-3 5, -r-"' I� o 14. 15 � AhA -2 V 9 r so Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. We the undersigned support the proposed renovation and expansion. NAME QDRESS I. AJ(' 91.1--�- `k �")A q i k 9-1 2. IF110- U— �Lu L��cGX � - L!} Rt'C 4 � s� 7. 8 _ 9. 13. i/ � 14. rid - i `may Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. we the undersigned- support the proposed renovation and expansion. NAME ADDRESS /i 22L 4. 17 76 5. F �o ')X 'raj— a 7. 7,07 8. 1 S oskl - r( Vo 41 Ai Ali 12. 11 � 13. (y,," 14. 15. Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. We the undersigned support the proposed renovation and expansion. NAME ADDRESS 1. 2. `-7/_�Z -7G 3. �s 4. 6. 7. 4rkrbo f Lau wl�omf w I ))� 8. - _ _© t1�3� 9. 11 e 12. 13. E -7 C 15. _�z yk-f- ` so Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by,approximately 1300 square feet to create new ADA(American Disability Act)�compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. We the undersigned support the proposed renovation and expansion. NAME ADDRESS SW&uA) 6l[-SoA-) 7 4. )Car-a t u44 IJ 5. ZA� 6. /oma for _1,?8rs�A 041 7. 9 L 12. 0 � . S;A/z 13. Member of the Board of Zoning Appeals Town of Southold fl . Town Hall Southold, N.Y. 11971 � et On SwPort of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms,a new enclosed dining room for smokers and to completely renovate its existing restaurant. We the undersigned support the proposed renovation and expansion. NAME ADDRESS 2. 3. , 4. �� �� 6. 4' s GI 1.r� ct, � . 7. r r/ 9. 10. 5' 11. c� - iA ( ,-macs_ 4-IQ ° 4' 066-, I 13.'!�Ai pe'- PSZ'/-YUV 64 am 15�� tiP4-, � -k -e f) A-kv „ ,,,j Por gy -e-Ff so 00 Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 1 el Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. we the undersigned support the proposed renovation and expansion. NAIVE ADDRESS 2 era 3. 4. 5. y 7A W--z�-U _ �I 8. 9. ti 11. 12. a 13. 14. 1 ember of the Board of Zoning Appeals w owR-pf Southold , flown ' W;_... Duthol ; N.Y. 11971 Petition in Support of Elbow East Restaurant ` Elbow East Restaurant iseeking to renovate and expand-its, reptaurant by approximately�uare feet to create new ADA(ArrLerican Disability Act) compliant bathrooms, a new-enclosed dining room for smoker and to completely renovate its existing restaurant_. We the un4ersigned . support the proposed renovation and expansion. NAME ADDRESS 1. e�cnti 2r 00r*e r �r WC(GC) f- 3. I> Mg 6. 7. -7 8. 9. 10. R C- / " E 1"'7/ zz- 13. ®A A 7044 C) Up" " f Member of the Board of Zoning Apa1s Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of.Elbow East Restaurant Elbow East Restaurant i�'seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act)compliant bathrooms, a- ,w enclosed dining room for smokers and to completely renovate its existing resourant. We the undersigned support the proposed renovation and exparj§ n. NAME ADDRESS 2. gt 3.- 5. 6. 10. U611-0 , f CC-C 13. M I(44eL 6-060Y 14.* a�'� A2r�- --- - 15. l t Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act)compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. We the undersigned support the proposed renovation and expansion. NAME ADDRESS 1. sl D 6 41120 n LD-2- ado Cc-cQar 6,e_ 2. e P34 ejuAd' Lid, 10 10 1& 4. Zell 6. 7. 9. :fid -=3 :7 13. 14. � l�2 lb 15. �rk- o A, a"-A-� S'7owj tw 1 Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 squarepet to create new ADA(American Disability Act) compliantbathrooms,-a new enclosed dining room for smokers and to complete novate its existing restaurant. We the undersigned support the propo renovation and exparW'on. , NAIVE ADDRESS 2. 6. acs•iL 4/5"/ CA 8 0 ` - 9. Tor- 10." -Ir — Ya Pyi Dr, tj I I at)[,P k-H , jET,.Ag� `t4n .j 0 Member of the Board of Zoning Appeals Town of Southold y Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet tgvreate new ADA(American Disability Act)compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant, We the undersigned support the proposed renovation and expansion. NAMt" ADDRESS r 1■ s� r 2. btq 3. cW e,, 6 I Ie 4. .61 �y 5. 7. 3 ) t'l I-o v r• 9. 11. yac�� 12. 13.' V� i Va /17314. , 1 15. 1 Member of the Board of Zoning Appeals Town of Southold 11 Sown Hall Sod"d, N.Y. 11971 Petition in Su ort of Elbow East Restaurant ;Elbow East Restaurant is seeking to renovate and expand itsl -remora t by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers , , and to completely renovate its existing restaurant. We the undersigned support the proposed renovation and expansion. -� NAME ADDRESS % 2. 4. 411C, tr Aj--4 1 LAI) 5. C-) ��;r�c�sZ . - nL 7. eXI -I-eRIP r"4 ,� ori Lug 8. 672- 9, 117 ( 10. 11. 12. n 27 p, z 17 15 - ti, , t Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Acts compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. We the undersigned support the proposed renovation and expansion. NAME - IADDRESS 1. 1 LI (�/?e e-J -Y Gad 2r 6 2■ &41CO �C�117 3. 7f, ZI 5. l row °��� 8. C/ 10. 12. 5 1�C la.- -e � V l/U r�Ql n i 13. gen- -t j I Y 2Z 14.' t l 15. 2,1,0 41(b C� r _ Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) c mpliant bathrooms, a new enclosed dining room for smokers and to completely renovate-its existing restaurant. We the undersigned support the proposed renovation and expansion. NAME ADDRESS 2. flo 5. aG&S LkUU-VvA Q) :Lie 7 817 -:Te--A C v ,-4X V 1� 8. Ce cam, 9, GJ , O2 12. 13. ►`s 3� 31V C � llq�y 14. 15. • r Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. We the undersigned support the proposed renovation and expansion. NAME ADDRESS 2. z 3. S' Flo 4. ,` 5. !� Ur 3 3a ���fUr / 6. 7 8. 9¢ 10. 12. 14. 15. ZONING BOARD OFAPPEALS M• l i Town Hall Office 53095 Main Road P.O. Box 11,79 Southold, NY 11971-0959 Email: Linda.Kowalski Town.Southold.n .us or Paula.Quintieri(a�Town.Southold.ny.us http://southoldtown.northfork.net (631) 765-1809 fax (631) 765-1823 (alt. 9064) TRANSMITTAL To: Jerry, Lydia, George, Ruth, and Vincent g DATE: [b / 1 /2002 REF: Hearing Date: �/ /�/02 Appl. ofV ( x ) Info attached for your information and review. Thank you. Pages attached: /1 71 DATE: October 7, 2002 lit - << Ica. - TO: Gerard P. Goehringer, Chairman Southold Town Board of Appeals Town Hall 53095 Main Road PO Box 1179 Southold, NY 11971-0959 FROM: Patricia Poppe, Member, Kenney's Beach Civic Association Board of Directors RE: Application No. 5051 Cliff and Phil's Lobster House AKA Elbow East As reported in a letter dated August 29, 2002 from Arline Richter, President of the Kenney's Beach Civic Association, I present the attached petiton signed by over 100 property owners. Expansion of this non-conforming commercial enterprise in our zoned residential area is strongly opposed. WNETSBEACUMC Po box 881 MCMTION Southold,NY Thursday,August 29,2002 Mr.Gerard P.Goehringer,Chairman �J Zoning Board of Appeals,TOS { MGT v9 )2 P.O.Box 1179 { Southold,NY 11971 - Dear Mr.Goehringer, Once again I am writing to you to express the views of the members of the Kenny's Beach Civic Association regarding the expansion application of Cliff's Elbow East Restaurant,located on Kenney's Road and North Sea Drive in Southold. For years this establishment has been seasonal,operating only in the summer.In fact It was originally a hot dog stand"shack"serving summer beach patrons.The present owners have elected to remain open for business during the winter. We feel if this application is granted,our quality of life will be diminished and homeowners will suffer with added traffic,inadequate parking,increased bar trade,etc. Mrs.Pat Poppe,a Director of the Association,will be presenting in person,a petition signed by approximately 100 property owners who object to and will be effected by this expansion. We urge you and the members of the Zoning Board of Appeals to deny this request. Very truly yours, Arline Richter, President v • -- .�_-ria-(-��-•',"'t 7 '�=�-, �'•, i -WE, THE UNDERSIGNED, WISH TO EXPRESS STRONG OPPOSM', lON--TO-THE- PROPOSED EXPANSION OF THE RESTAURANT KNOWN AS ELBOW EAST AT _ THE CORNER-OF KENNEY's ROAD AND -Nom SFA DRIVE-IN THE vniAa- OF SOUTHOLD 11971. ARE ARE QUALITY OF LIFE, ENVIRONMENTAL, PARKING, AND HEALTH ISSUES AT STAKE. WE DO NOT WANT THE RESIDENTIAL AND FAMILY ATMOSPHERE IN OUR AREA TO HE COMPROMISED IN ANY WAY. THANK YOU■ r SIGNdATM PY[llVl NANM -.-_- A DDMS ATE v--- MSMM OF ARFA? --�s.............................. ��e���� �e��� I --- ----- i � I A t 7 -_ Ole 1,e wS 1 X 10 l�o�f��,� ' 1 Z S ----- ^� e '• ..-- �C(�(ZCa(d QG�2(,6 5 2 1�7�e (��lL7E{ �t{I} .Y� 1 0 Le 2:!LT1+�,A VJA d SEAL*9-11-C)2�- YL-5 G WE, THE UNDERSIGNED, WISH TO EXPRESS STRONG OPPOSITION TO THE PROPOSED EXPANSION OF THE RESTAURANT KNOWN AS ELBOW EAST AT THE CORNER-OF KENNEY'S ROAD SAND -NOT SEA 'DRIVE IN THE V[LIAGE OF SOUTHOLD 11971. THERE ARE QUALITY OF LIFE, ENVIRONMENTAL, PARKING, AND HEALTH ISSUES AT STAKE. WE DO NOT WANT THE RESIDENTIAL AND FAMILY ATMOSPHERE IN OUR AREA TO RECOMPROMISED IN IN ANY WAY. THANK YOU. ; f, OCT ` ?_ SIGNATM PRINT NAM ADDREss DAA RES ®F AREA? —y----------- ------------- — —�o__ ___..__.__®® � l7r�w✓��3ovT ��2v,PEa�; LvqAth � = w twfti e y �1v 4461 c;CO kl e`AllJoijv � (2,; /ed i1 :�R' 1 -7 oi 1 0 L4 UP) -- — _— i �/ r � �-t r�r e ,Fct-c�v � �� �� ��`ic�tbZ ( r� k,I L111, c9 Ae-)S -1Zo l 2— ,"'_0 A.)_Dl-j c 1 i ' WE, THE UNDERSIGNED, WISH TO EXPRESS STRONG OPPOSITION TO THE PROPOSED EXPANSION OF THE RESTAURANT KNOWN AS ELBOW EAST AT THE CORNER-OF KENNEY'S �-OA3D AND NORTH SEA DRIVE IN THE VILLAGE OF SOUTHOLD 11971. THERE ARE QUALITY OF LIFE, ENVIRONMENTAL,r_ PAINING, AND HEALTH ISSUES AT STAKE WE DO NOT WANT -- RESIDENTIAL AND FAMILY AIMMOSPHERE IN OUR AREA TO BE 'i I�A- �~+~ COMPROMISED IN ANY WAY. THANK YOU. `!,?`�, � o � 32 SIGNATURE PRINK'NANM ADDRESS DATE RESIDENT-OF AREA., ------ ----- ----------- -- - ------- --------- - - l2si'2,�/o 9',-/1 Po ppc 71-062- A !- 7 TQUA16 - R _I / F L�-T,i yam• . �',7'r ! �' ��c'� �,� 1 ��' /d L ye-1 _---- 712z I-v 141tr��° csc�l.0 7 f3o �•Sz zv�o i t i We ._ !fd�Crr rv__fy_gb��a�n- WE, THE UNDERSIGNED, WISH TO EXPRESS STRONG OPPOSITION TO THE PROPOSED EXPANSION OF THE RESTAURANT KNOWN AS ELBOW EAST AT THE CORNER-0F KENNEY'S R-OAm AND NeRTH SEA DRIVE m THE vmAGE OF SOUTHOLD 11971. THERE ARE QUALITY OF LIFE, ENVIRONMENTAL, PARKING, AND HEALTH ISSUES AT STAKE. WE DO NOT WANT THE RESIDENTIAL AND FAMILY ATMOSPHERE IN OUR AREA TO BE l+1lll, COMPROMISED IN ANY WAY'. THANK YOU. OCT - � ;? SIGNATURE PRINT NAN E ADDRESS DATE RESIDENT OF A' A? - rrrsrarverr rr r�rroerrr rr r ------ ------- rrrrrrrrer t.e e To I� SCJ %'! T�5'c� 7" ®�c,}1 ^ 7 mzo o r Saa rOL fol �r,•r,� 0 12 AlXA CZ42.,v 14,Df-F7-A1\' ll alozF /Al-rIt VIP lklcjf'�JL'4� + � ' i/ C ��' �'�, 1 ,CSL ti =-��- �-ter•t,,-v G� -C, _F &rye �� ; '1 dg '- � lj � P r t jl� a�— I - a J 1 � 1 f i ..a�t'��r\�\��.>_ -._.-.__ --Et��7--._-S�env�=4N►,��_�t� C���► h�L� -_ �g_��'Z�. _-� --------- --.,.__ __---_ . WE, THE UNDERSIGNED, WISH TO EXPRESS STRONG OPPOSITION TO THE PROPOSED EXPANSION OF THE RESTAURANT KNOWN AS ELBOW EAST AT THE CORNER-OF KENNEY'S R-OA-D AND NORTH SEA DRIVE -IN TilE vjL-LADE OF SOUTHOLD 11971. THERE ARE QUALITY OF LIFE, ENVIRONMENTAL, _ - PARKING, AND HEALTH ISSUES AT STAKE. WE DO NOT WANT THE - -- - - RESIDENTIAL AND FAMILY ATMOSPHERE IN OUR AREA TO BE COMPROMISED IN ANY WAY. THANK YOU. SIGNAT M PMT NAS AYDliMS DATE REsmE tr OF AREA? �,, — ------ ------------ ----------------------------- -------- --- ----- ---= IE4UI ALI lee,Z;�/,S- pep k7ec r�s d 2,— ^— ,C�''C�'G� c�-e-7 vz IV' �o?a ke,�, vs 8 31-� yes _.� (v -�) — E�ff. r � C '1G�/"�PS Cs� Z �J hL"� jC f r �� ` i u WE, THE UNDERSIGNED, WISH TO EXPRESS STRONG OPPOSITION TO THE PROPOSED EXPANSION OF THE RESTAURANT KNOWN AS ELBOW EAST AT THE CORNER-OF KENNEY9S ROAD AND NOS SEA DRIVE IN THE VjL-LA-GE OF SOUTHOLD 11971. THERE ARE QUALITY OF LIFE, ENVIRONMENTAL, PARKING, AND HEALTH ISSUES AT STAKE. WE DO NOT WANT THE RESIDENTIAL AND FAMILY ATMOSPHERE IN OUR AREA TO HE = COMPROMISED IN ANY WAY. THANK YOU. SIGMTMPI2M NAAM ADDMS DAU REsmi i -OF"AREA? ----------------------------------- —=--v��__r- - ---- Ile 9- 31-02 Ye-f5 t wi x WE, THE UNDERSIGNED, WISH TO EXPRESS STRONG OPPOSITION TO THE PROPOSED EXPANSION OF THE RESTAURANT KNOWN AS ELBOW EAST AT THE CORNER-OF KENNEY'S R-OAID AND NORTH SEA DRIVE IN THE ViL E OF SOUTHOLD 11971. THERE ARE QUALITY OF LIFE, ENVIRONMENTAL, PARKING, AND HEALTH ISSUES AT STAKE. WE DO NOT WANT THE RESIDENTIAL AND FAMILY ATMOSPHERE IN OUR AREA TO HE - COMPROMI-S-ED IN ANY WAY. THANK YOU. ;� g ` 's, SIGNATURE PRINT NAME I ADDRESSDATE RESIDEN of=AREA? �- - ---------------------------r____________ _______ __________Y6 iol CL C&� C� t-- z �— 7 _ Z4 Loy. A 6 L3 ?-5 /_' �IOV fvstirJiv� -- WE, THE UNDERSIGNED, WISH TO EXPRESS STRONG OPPOSITION TO THE PROPOSED EXPANSION OF THE RESTAURANT KNOWN AS ELBOW EAST AT THE CORNER-OF KENNEY55�$OAJD AND NORTH SFA DRIVE-IN TilE VfL-LAGE OF SOUTHOLD 11971. THERE ARE QUALITY OF LIFE, ENVIRONMENTAL,, PARKING, AND HEALTH ISSUES AT STAKE. WE DO NOT WANT THE--_- RESIDENTIAL AND FAMILY ATMOSPHERE IN OUR AREA TO RE -- COMPROMISED IN ANY WAY® THANK You. SIGNAT UREPRWT NANIE I ADDRESS DATA I RESIDEId'I'OF AREA? ------------ -------------L------------ -- ?�-� --- -T- i f � r i t • � ,.I I ��4 �ypy � n c57-0 ALP- 9 7/ NOV 1 2 D2 I: November 11, 2002 To: Members of the Zoning Board of Appeals !' 1?z__� - -- .___ From: Patricia Poppe, 282 North Sea Drive, Southold, NY 11971 -_______ Re: Application No. 5051 Expansion of Elbow East Please take the following under consideration during your deliberations: 1. This expansion was originally to provide for larger waiting room and restroom areas. 2. This application requests a 49% addition. 3. The bar area in the plans has over 20+ stools, which is almost three times what is now available. 4. This nonconforming business has had 4 expansions already. i 5. Why is there a second story-like facade — reminiscent of a Red Lobster or IHOR? Their attorney claims they wish to "blend in" to the beachside community. This proposed structure does quite the opposite. 6. The proposed entrance will face the bedrooms of the residences that border the parking lot. Now headlights will accompany the noise of the patrons coming and going in this zoned "residential" area. 7. Owners have recently added satellite TV apparatus, Quick Draw and Lotto. These are 7/11 and tavern-type offerings. Family restaurants do not usually offer this kind of "entertainment." It appears the "character" of this restaurant is being changed. 8. For someone claiming "hardship," business was booming this past season. Overflow parking was apparent on the streets of the Kenney's Beach area. One cannot purchase a business that was seasonal, open it all year round, 7 days a week and then try to cry "Hardship!" If there is a hardship. it was self-created. 9. How can one determine "reasonable return" when the business has not been operating in the same way as it did in the past? The "uniqueness" test doesn't apply either because the business is non- conforming and the goal is to make non-conforming less so. 10. This request WILL alter the essential character of the neighborhood. Residents presently tolerate the existence of this non-conforming business. It already alters the residential quality of the Kenney's Beach area. That is why over 100 residents of the area have petitioned this board to deny the variances. 11. The most important issues, however, are the health, safety, and welfare of the people who live here. The increased traffic from noon to late night has affected children walking to the beach, people biking, those pushing baby carriages, owners walking dogs, residents jogging or roller blading. The residents, who are the majority, are losing their right to feel safe and secure. L f 1`oV 61 12. Businesses are important to all residents. They provide service and a tax Many business owners are residents of the Town of Southold as well. However the, right to own a business should not impede the rights of those who live in a residential ---- - - - area. That is why we are fortunate to have zoning laws that prevent this from happening. Zoning laws protected this restaurant by allowing it to exist in a residential area. It is respectfully submitted that the zoning laws should now be interpreted to protect the residents. I I �I �i i Nov 8 . 2 November 1 , 2002 Mr. Gerard Goehringer Chairman of -Zoning Board of Appeals Box 1179 Southold, New York Sir: As resident-owners of our home on North Sea Drive and tax- payers to the Town of Southold for 41 years , strongly oppose Cliff' s Elbow East Restaurent application for Sport's Bar status. As you know, over the years there have been many problems arising from the parking areas of Kenney's and McCabe 's beaches . A Sports Bar would greatly add to possible vandalism, drinking and unsafe vehicle speeding on our roads. It also seems to us that applications such as this are con sidered when most summer residents are not living in Southold to possibly object to these applications or variances. Again we strongly oppose this application. DO NOT APPROVE IT. A Sports Bar would create a huge negative impact in our residential area. Please don' t let one business ruin the quality of life for the whole neighborhood. Tha , 20 rth Sea Drive cc:Josh Horton y�l Stanley & Carole Waldshan 1525 North Sea Drive Southold, NY 11791 November 1, 2002 Town of Southold Zoning Board Southold, NY 11791 Re: Elbow East Dear Sir or Madam: As forty year residents of North Sea Drive I urge that you reject the expansion plans of Elbow East. The issues center around quality'of life for residential owners and especially traffic concerns for us. Our children spent their summers in Southold without heavy traffic congestion on this quiet residential street. We now find that we cannot allow any of our six grandchildren to play in our driveway even with supervision because of the heavy weekend traffic. Allowing another expansion, especially to increase the bar will only further damage the beauty of this street and impose an additional danger to all of our neighbors and especially to the many children who summer here. Sincerely, . d /StanIe & Carol aldshan j �l Vincent A. Fischetti, Ph.D. 830 North Sea Drive Southold, NY 91971 Southold Town Board of Appeals 53095 Main Road, PO Box 1179 Southold, NY 11971-0959 Re: Appl # 5051 HEARING 11/14/02 8:15 APM Cliff and Phil's Lobster House To Whom It May Concern: As concerned owners and residents of a home at 830 North Sea Drive in Southold, we are writing to request that the Southold Town Board of Appeals reject the proposed addition to the restaurant establishment known as "Elbow East" located in a residential (R-40) district at the corner of Kenny's Road and North Sea Drive. We feel that any expansion to the bar/restaurant area will create even more traffic and noise from this establishment than we are already experiencing in this residential area. The restaurant is open not only in the evening but also in the daytime when young children and families are walking to Kenny's Beach, just adjacent to the restaurant, so there is a safety factor involved in additional traffic. We believe that the owner's proposal for renovation to conform for the handicapped could be achieved easily and without any expansion to the existing building. Please reject any addition to the existing building. VruourFi chetti, Ph.D. Barbara A. Fischetti --" NSMISSION VERIFICATION REPOT TIME 11/12/2002 14: 29 DATE,TIME 11/12 14:27 FAX NO./NAME 15153573333 DURATION 00:01:09 PAGE(S) 03 RESULT OK MODE STANDARD ECM OFFICE OF* ZONING BOARD OI I'P 53095 Maid Road Southold, NY 11971 Email: Linda Kowalsld(i-Town.Southold.n),.us or Paula Quintieri((DTown.Southold.ny.us littp://southoldtown.northfork.net(631)765-1809 fax(631)765-9064 -3� FAX TRANSMISSION FAX# ATTN: �) / DATE: / /2002 REF: 1ja- MESSAGE: Please feel free to call if you did not receive all sheets. Town Hall hours are between 8 and 4. Thank you. Pages to follow: / i ZONING BOARD OFAPPEA_ Town Hall Office 53095 Main Road i P.O. Box 1179 J Southold, NY11971-0959 �1 Email: Linda.Kowalski(a,Town.Southold.ny.us or Paula.Quintieri(iDTown.Southold.ny.us http://southoldtown.northfork.net (631) 765-1809 fax (631) 765-1823 (alt. 9064) TRANSMITTAL To: Jerry, Lydia, George, Ruth, and Vincent DATE: �� / 9 /2002 ��/ REF: Hearing Date: 02 Appl. of C41 eS ( x ) Info attached for your information and review. rue- /7-& ii�b ' J'W-) al::La�n Thank you. Pages attached. l �1 F„�;.i�.TM��"� Yi:•^-. .,.c'�1+ yrrA�-:-at.:. - :1 t4s�i'�t: ISR ear Mj; Goehri n g er and Meh - ZoningBoardofAppeal m bers of Southold £, .ivy"-;'�� �.���f •,, We the undersigned :y4 Associati n rsigr� members of e$ o the e ; Gliif.s El urge you to deny the a nney s Beach Civic bow ansi n W f E Restaurant. ° apPlicatio of a eel i n fp�ttedto Residential character of th� with any eXpansioar will n thaQuali Quality will be greatly diminisruined�d ourhed.You for Your supPort: .. .,' zy truly yours - v 1231 /K.lm`m2�� ,iHa`.'^..,a.,d^i°p'�s .:.5�✓`W�.a`..`.�.,.`�:.�.iuA,:.b,t_',,'�S.a�},S4a �Nli,"wi�'�fti�,L f<.;:.1�'���i".,. -w= ...«..^am""T�^�."^t,..:•.•--f ^'(-.""5'"` 3�".>'ya._J:�"��� _ 'o-i :t:< �` -.v,F'F.�'`' _ ^'u .`.�<<',+_..;.•.��_ - :;x;:,��;.:';';..pt,'%d'� st',?,��";:��-`�:t:-- ":r,,�.,.+:'� �-�"r�t'� 4'` .^`�'+`� �_-Y.�v _ ,t+" ;t.�i.� :,�;�=ti-,t� �k';,z-"� `#'• _ _ �.t...,'_ _ =-a. "a�' 'ri'r--..,-z-'�•--' ;}•i q->sG-:"�''": yyaC;>!� _ '!f--, jS:'s`•~-,:s� �4' _ _ '.''.;,, 'f - '.y _ _- °{-J - ''4,`.�'t-'4,•'3 fsr.' - .�i. _ „.3,. F�•� ,y+'� ^'a�hk,. �,.<,1vr�_ - _ -,I��i� �.'4:Sh,..S,?Yjd.�' tli�q'�- '.�3:-'f'^- �Y'�'t..'.rh:, a�N;:�.`_'_ i.,{i�v'a;t'.�;�i�aFfC. u%.fi s�q:All '`.�..{., 4�di?id•. b'�+.yL�'..�'(4r.� t .'',Fhtii r�t _-_�� �'71"moi �'�k�':µ`#' .4•�r' '+v�,'Fy�- _ ctkly:.i,,;�}{``-t�Yr^•z!•�,`;+t�vi V,,,,'r �7�,`„fir ,.-ti ;� -n-�'^�``s},.�,".� ,f -_ ,, .:�",,_.,',-''}•. NOV 1 2 D2 Date: November 11, 2002 To: Members of the Zoning Board of Appeals From: Patricia Poppe, 282 North Sea Drive, Southold, NY 11971 Re: Application No. 5051 Expansion of Elbow East Please take the following under consideration during your deliberations:. 1. This expansion was originally to provide for larger waiting room and restroom areas. 2. This application requests a 49% addition. 3. The bar area in the plans has over 20+ stools, which is almost three times what is now available. 4. This nonconforming business has had 4 expansions already. 5. Why is there a second story-like facade — reminiscent of a Red Lobster or IHOP? Their attorney claims they wish to "blend in" to the beachside community. This proposed structure does quite the opposite 6. The proposed entrance will face the bedrooms of the residences that border the parking lot. Now headlights will accompany the noise of the patrons coming and going in this zoned "residential" area. 7. Owners have recently added satellite TV apparatus, Quick Draw and Lotto. These are 7/11 and tavern-type offerings. Family restaurants do not usually offer this kind of "entertainment." It appears the "character" of this restaurant is being changed. 8. For someone claiming "hardship," business was booming this past season. Overflow parking was apparent on the streets of the Kenney's Beach area. One cannot purchase a business that was seasonal, open it all year round, 7 days a week and then try to cry "Hardship!" If there is a hardship. it was self-created. 9. How can one determine "reasonable return" when the business has not been operating in the same way as it did in the past? The "uniqueness" test doesn't apply either because the business is non- conforming and the goal is to make non-conforming less so. 10. This request WILL alter the essential character of the neighborhood. Residents presently tolerate the existence of this non-conforming business. It already alters the residential quality of the Kenney's Beach area. That is why over 100 residents of the area have petitioned this board to deny the variances. 11. The most important issues, however, are the health, safety, and welfare of the people who live here. The increased traffic from noon to late night has affected children walking to the beach, people biking, those pushing baby carriages, owners walking dogs, residents jogging or roller blading. The residents, who are the majority, are losing their right to feel safe and secure. NOV 12. Businesses are important to all residents. They provide service and a tax base. Many business owners are residents of the Town of Southold as well. However, the right to own a business should not impede the rights of those who live in a residential area. That is why we are fortunate to have zoning laws that prevent this from happening. Zoning laws protected this restaurant by allowing it to exist'in a residential area. It is respectfully submitted that the zoning laws should now be interpreted to protect the residents. tr . - - - j, � NOVAoV 8 �, - November 1, 2002 Mr. Gerard Goehringer Chairman of Zoning Board of Appeals Box 1179 Southold, New York Sir: As resident-owners of our home on North Sea Drive and tax- payers to the Town of Southold for 41 years , strongly oppose Cliff' s Elbow East Restaurent application for Sport's Bar status. As you know, over the years there have been many problems arising from the parking areas of Kenney's and McCabe 's beaches. A Sports Bar would greatly add to possible vandalism, drinking and unsafe vehicle speeding on our roads. It also seems to us that applications such as this are con- sidered when most summer residents are not living in Southold to possibly object to these applications or variances. Again we strongly oppose this application. DO NOT APPROVE IT. A Sports Bar would create a huge negative impact in our residential area. Please don' t let one business ruin the quality of life for the whole neighborhood. Tha , i 20 rth Sea Drive cc:Josh Horton OFFICE OF • ZONING BOARD OFALS ` 53095 Main Roa Southold,NY 11971 Email: Linda Kowalski rr Town.Southold.ny.us or Paula Quintieri((_DTown.Southold.ny.its http://southoldtown.northfork.net(631)765-1809 fax(631)765-9064 // [ FAX TRANSMISSION FAX#616 ATTN: �p DATE: /lr�- /2002ll REF: 016 MESSAGE: Please feel free to call if you did not receive all sheets. Town Hall hours are between 8 and 4. Thank you. Pages to follow: 1 JI SOUTHOLD TOWN BOARD OF APPEALS THURSDAY,NOVEMBER 14, 2002 PUBLIC HEARINGS NOTICE is HEREBY GIVEN, pursuant to Section 267 of the Town Law and Chapter 100 (Zoning), Code of the Town of Southold, the following hearing will be held by the SOUTHOLD TOWN BOARD OF APPEALS at the Town Hall, 53095 Main Road, Southold, New York 11971, on Thursday, November 14, 2002, at the time noted below(or as soon thereafter as possible): 8:15 pm Appl. No. 5051 — CLIFF AND PHIL'S LOBSTER HOUSE. (Continued hearing from February 28, 2002). Based on the Building Department's Notice of Disapproval issued November 13, 2001, amended/updated October 22, 2002, applicant requests zoning determinations for: (a) an Interpretation under Article XXIV, Section 100-243 to Reverse the Building Department's determination which states that the proposed addition/alterations to an existing restaurant establishment is not permitted in a Residential R-40 District, or alternatively a Variance authorizing the proposed addition to the existing restaurant, a nonconforming use in a nonconforming building; and (b) a setback variance is also requested under Section 100-244B for an addition to the existing building which will be less than 40 feet from the front property line. Location of Property: Corner of the east side of Kenny's Road and the south side of North Sea Drive, Southold; Parcel 1000-54-5-22. The Board of Appeals will hear all persons, or their representatives, desiring to be heard at each hearing, and/or desiring to submit written statements before the conclusion of each hearing. The hearing will not start earlier than designated above. Files are available for review during regular Town Hall business days (and on 11/14 between 8 and 12). If you have questions, please do not hesitate to call (631) 765-1809: Dated: October 25, 2002. Southold Town Board of Appeals 53095 Main Road P.O. Box 1179 Southold,NY 11971-0959 (tel. 631-765-1809) 4 / ZONING BOARD OF APPEALS 53095 MAIN ROAD P.O. BOX 1179 SOUTHOLD,NY 11971 MAR 2 2 )2 Gentlemen We are the owners owner of 30 Oakwood road near the Cliffs Elbow Restaurant. I am OPPOSED to any extension of the restaurant and Bar as requested by the restaurant/bar owner for the following reasons. 1. This area is strictly residential . 2. The extension will increase traffic and noise. 3. There is not sufficient room for parking space after the extension.. 4. The additional traffic will be danger to the children in the community 5. The extension of a commercial establishment in a residential zone will depreciate the residential property . Sincerely Antonios and Antonia Kaminis March 12„2002 i \ly ZONING BOARD OF APPEALS 53095 MAIN ROAD -� P.O. BOX 1179 SOUTHOLD NY 11971 BAR 2 2 )2 Gentlemen We are the owners owner of 30 Oakwood road near the Cliffs Elbow Restaurant. I am OPPOSED to any extension of the restaurant and Bar as requested by the restaurant/bar owner for the following reasons. 1. This area is strictly residential . 2. The extension will increase traffic and noise. 3. There is not sufficient room for parking space after the extension.. 4. The additional traffic will be danger to the children in the community 5. The extension of a commercial establishment in a residential zone will depreciate the residential property . Sincerely Antonios and Antonia Kaminis March 12„2002 A5 ' d \/ �I v / C1 Kowalski, Linda -3- /% ©Z From: donald j stanton [dvstanton@juno.com] Sent: Wednesday, March 06, 2002 2:59 PM To: Lida.Kowalski @Town.Southold.ny.us Subject: Fw: Elbow East Expansion --------- Forwarded message ---------- From: donald j stanton <dvstanton@juno.com> To: Linda.Kowalski@TownofSouthold.ny.us Date: Sat, 16 Feb 2002 10:02:58 -0500 Subject: Elbow East Expansion I want to go on record as opposed to any expansion of the restaurant on the corner of Kenny's Rd. and No. Sea Dr. . The present facility is a nuisance because of the cooking odors and traffic that it brings. I am opposed to anything that would make the present situation worse, and expansion of the restaurant would certainly worsen the present nuisance. Thankyou. Donald & Virginia Stanton 1450 Leeton Dr. Southold, NY 1 r ® ;7 c� �11 MNR Phone i ools I BVRP Phone: sopewaro --- Fax: essage John & Flora Kleehaas 930 North Sea Drive Southold To: Mr. Gerard P. Goehringer, Chairman Southold Board ofAppeals Town Hall 53095 Main Road Southold Dear Mr. Goehringer, Unfortunately we are unable to attend the meeting concerning the Elbow East restaurant expansion so we are writing you this letter to inform you of our feelings on this matter. We feel very strongly that in no way should the Elbow East restaurant be allowed to expand as it will have an extremely negative effect on the quality of life in-the neighboringi area. Elbow East restaurant is already in violation!of the R-40 residential zone.and allowing them to have a sports bar will destroy the quality of the environment by,bringing,'down,,real,estate values creating a parking problem bringing-in a lot of traffic and noise.,T'he areawhere'Elbow East is situated is primarily a residential area. It is not a beach resort where,a.club or,a sports bar would be appropriate. We are out of the way in a quiet and secluded'community-where this establishment will have a very serious impact. We feel that the owners of the Elbow East restaurant are trying to make money without any concern of the damage they can cause to the Kenny's Beach area. We appeal to you not to allow this expansion. Thank you very much. Sincerely, John & Flora Kleehaas From: TO: Southold Board of Appeals Valued Dell Customer Mr. Gerard P. Goehringer Page 20,February 28,2002 r� ZBA Public Hearing Transcript =' 'Town of Southold ANTHONY TOHILL, ESQ.: Exactly. MEMBER TORTORA: But we can't go back forth, with you responding to him and you to responding to. There's more than sufficient evidence on the record at this point, for this Board to make a determination. Make your closing statements; let's be done with it. ANTHONY TOHILL, ESQ.: I agree, goodnight Grace. CHAIRMAN: Trust me it's not gong to happen. ANTHONY TOHILL, ESQ.: So ten days from today? MEMBER TORTORA: Correct. MATTHEW PACHMAN,'ESQ.: As I understand it, if Mr. Tohill hand delivers this to me on the ninth day, then I have a day to respond? CHAIRMAN: No, that is not correct. MEMBER TORTORA: You both have ten days. ANTHONY TOHILL, ESQ.: Jerry, let's do a Monday; what's a Monday, not this coming week but the following week? Does anybody have a calendar? The I I'? March 11'x', everybody submits on that day and that's it. MATTHEW PACHMAN, ESQ.: That's precisely what the Chairman is not saying; normally the applicant has the last word because it's the applicant's application. CHAIRMAN: We'll give everybody until the 15th ANTHONY TOHILL, ESQ.: Okay, the 15`" and that's it. CHAIRMAN: Right. If there's any problem Mr. Pachman, let us know. , Please remember before you two gentlemen leave that we will be closing the hearing on the 21'. MATTHEW PACHMAN, ESQ.: Thank you Mr. Chairman and Members of the Board. (break at 8:05) CHAIRMAN. For the people who have not been before the Zoning Board of Appeals, we do have another member who is a Fishers Island Member who comes over religiously for every Regular Meeting, -this is a Special Meeting, which we quite honestly don't have Public Hearings at. And I'll make a motion going back into Public Session. 8:10 p.m. Appl. No 5051 —.CLIFF AND PHIL'S-LOBSTER HOUSE/RESTAURANT — Based on the Building Department's Notice of Disapproval issued November 13, 2001, 1 t Page 21,February 28,2002 -- ZBA Public Hearing Transcript Town of Southold amended November 14, 2001, applicant is requesting: (a) an Interpretation under Article XXIV, Section 100-243 to Reverse the Building Department's determination which stated that the proposed addition/alteration to an existing restaurant establishment is not a permitted use in the residential R-40 District, or alternatively a Variance under Section 100-243A authorizing the proposed addition to the existing restaurant, a nonconforming use in a nonconforming building; and (b) a Variance under Section 100-244B to locate the proposed addition maintaining the same nonconforming setback at less than 35 feet from the property line; and (b) a Variance under Section 100-244B for a total lot coverage in excess of the code limitation of twenty (20) percent of the total lot area. Zone District: R-40 Residential. Location of property: Corner of the East side of Kenney's Road and the South side of North Sea Drive, Southold; County Tax Map Parcel 1000-54-5-22. George Tsunis, Esq. CHAIRMAN: I want to say Mr. Tsunis that we agreed to have this hearing be held tonight, however, as you know there are now three Notices of Disapproval. MEMBER TORTORA: Two. CHAIRMAN: Are there not three? Didn't we receive one today? We did not receive another one today? GEORGE TSUNIS, ESQ.: No, I have no notice, not that I'm aware of. CHAIRMAN: All right, well then let's go back on this then. We have two Notices of Disapproval. The Public Hearing is based upon the first Notice of Disapproval. And we may restrict you to a specific situation tonight because this is going to be a preliminary hearing, and we are going to complete this hearing on the 28th of March, at which time we will re-advertise the second, both the first and the second Notices of Disapproval. By law, we discussed this with counsel last night and we cannot complete this hearing tonight because we are only dealing with that Notice of Disapproval, which was first given to us when it was filed by the applicant prior to.you being on Board. Just so you are aware of that situation. I would appreciate it tonight if you could get into some of the use variance aspects of this case, and we'll go from there. GEORGE TSUNIS, ESQ.: Mr. Chairman, just for my own edification, it was my understanding that before the public notice came out I mailed a letter to yourself, also to the attention of Linda and Paula in the Zoning Board Office dated February 13, it went by telecopy asking that the application be amended to include both the Code Interpretation, as well as, the Use Variance. It is my understanding that was received by the office before the public notice was made, and they would be able to put on both applications and try to provide you with both sets of proof. If that is not the case, Mr. Chairman, I am more than willing to come back on March 23rd, at your indulgence, and provide whatever you need. MEMBER TORTORA: We do have the amended Notice of Disapproval. The problem probably isn't yours. What happened was the original Notice of Disapproval was issued Page 22,Febtuaiy 28,2002 ZBA Public Hearing Transcript Town of Southold MEMBER TORTORA: Yes, I'm sure. To make a long story short, what happened subsequent to that, was you then went back and had a survey done, developed the blueprint elevations, revised the site plan three times, the calculations on the revised site plan the Building Department simply hasn't seen any of those. So, between November and all of the revisions and the plans that you developed have not been reviewed by the Building Department. So, at this point, we can't sit in judge and jury of ourselves and our jurisdiction, as you well know, is appellate only. GEORGE TSUNIS, ESQ.: I don't blame you; I'm very sensitive to that. We'll be happy to finish it up on March 28th. It would be a privilege to appear before you again. Let me start by apologizing at the outset. The relief that I'm requesting from this Board is both under Town Law 26713.1 Code Interpretation, and 26713.2 Use Variances. There are some similarities in places; my comments are peppered, so if I'm a little redundant and I inadvertently get into matters that are published, please forgive me. I'll try to keep my comments to on the Use Variance application. CHAIRMAN: Symmetrically what I said in the beginning, we would like you to take whatever has not gone to the Building Department and give it back to me, so in case we get a third interpretation, which I was misconstrued about tonight, we can incorporate one, two and three into a final public hearing notice which will then allow us to complete the process of this particular project. MEMBER TORTORA: So they can review it. In other words, they can review all the revisions you made and CHAIRMAN: And I honestly think you can do that in 30 days. GEORGE TSUNIS, ESQ.: Yes, I will be happy to come meet with the Building Department, with the Zoning Enforcement Officer and work everything out. CHAIRMAN: Right. GEORGE TSUNIS, ESQ.: Thank you. Good evening Mr. Chairman, Members of the Board. My naive is George Tsunis; I'm with the law firm of Rifkin and Radler, Uniondale, New York 11556. I am the attorney for the applicant, Cliff and Phil's Lobster House, Inc., more commonly known as the Elbow East Restaurant. The premises are located on 50 North Sea Drive, which is on the corner of Kenny's Road in the Hamlet of Southold. The parcel is approximately 22,000 square feet. The current use of the restaurant is pre-existing, non-conforming. I think it's fair to mention that the parcel was also the subject of an up zoning approximately ten years ago. The site has had an existing family restaurant of approximately 2800 square feet for as long as I'm told anyone could remember. It's been in that community for decades and decades, a fairly famous restaurant. And the community has grown in the short around this restaurant. It pre-existed the later residential uses. Our proposal and the issue before this Board is to seek relief to renovate the existing restaurant and to do an expansion of approximately Page 23,February 28,2002 ZBA Public Heanng Tianscnpt Town of Southold 1400 square feet, which would provide for proper handicap access into the premises. A suitable foyer and proper bathrooms, which would be A.D.A. compliant. As this Board is very familiar, some years ago, congress passed the American Disabilities Act, and many premises quite frankly have been slow to recognize and to spend their dollars to provide a suitable and compliant facilities with the American Disabilities Act. The applicants are willing to spend those sums to better service their clientele and their community. There is a handicapped lift that will be installed so patrons can access the upper portion of the restaurant. If you've ever been there, or if you've seen the site plan, it's literally on two levels and clearly someone in a wheelchair could not get up the stairs and we feel that this is very sensitive and very appropriate. There's also a smoking area, an enclosed smoking area. We want to enhance the lounge. Second-hand smoke has been one of the largest problems that we face, so much so that the Suffolk County Legislature and I think legislatures all over this country have passed anti-smoking legislation. And what that does is it mandates that restaurants provide a smoke-free environment to their diners. And if you're going to have a smoking area, you need to have an enclosed area, usually by the bar. And if you're going to have an enclosed area, usually by the bar, it makes some sense to provide some tables for those patrons that are smokers so we don't discriminate. So patrons who are non-smokers can have a smoke-free environment and enjoy their meal, and people who are smokers can also go into a small-enclosed area and enjoy their meal. My request, I had two requests before you. Town Law 26713.1 gives this Board tremendous latitude and powers to interpret the Code. My argument on March 28th is going to permeate that the Zoning Enforcement Officer did not factor in this Federal and County law. And within this discretion that is given to you I'm going to ask that those factors be taken into consideration. There will be a tremendous amount of case law that I will quote for you, where in the Court of Appeals in the Appellate Division have done very similar things and I hope that's something that expositive in making more decisions. We see use variances, especially in this case. When the applicant has special circumstances the enabling acts provide more zoning powers, especially to this Board. The standards to grant such variances were designed to give the Board a maximum of discretion, a maximum discretion. Which means you have to consider the criteria which I will go into, you have a tremendous amount of discretion. If the application is proper and special circumstances, the case law says special circumstances, exist to grant the relief. Any discussion of the Use Variance must start with unnecessary hardship. This is something that the legislature codified into statute from the of 1939. Simply put to achieve unnecessary hardship for it to exist, no reasonable return on an investment can take place. No reasonable return on investment. That doesn't mean that they have to be losing money. You have to determine that they can't snake a reasonable return on their investments. As a matter of fact, that's quite clear in a Court of Appeals decision in Fayetville. You have to demonstrate factually by dollars and cents proof an inability to yield a reasonable return. Dollars and cents proof. CHAIRMAN: Mr. Tsunis, any case law that you intend to present to us, we would appreciate copies of, and I see you have copies possibly in front of you. GEORGE TSUNIS, ESQ.: I'll have that for the 28th Sir. h Page 24,February 28,2002 ZBA Public Heanng Transcnpt Town of Southold CHAIRMAN: Okay, thank you. GEORGE TSUNIS, ESQ.: As I said, dollars and cents proof. I have, and I would like to submit as an exhibit for this Board a letter from the applicant's accountants, which I would like to read into the record. The principal shareholders are not receiving a return on their investment. In order to provide necessary working capital, they're accepting less enumeration than they could expect if they were employed by a business in the industry. However, Ms. Volinski states that their losses have been reduced and it is reasonable to expect that a positive rate on their investment could be achieved if we provide them with an increased amount of business. I have certified financial statements by the applicant's accountant. I provide two copies for you. If you would indulge me for a moment, page one is a letter from the accountant certifying these financial statements. Page two has a confirmation of the financial statements of the restaurant. If you notice for the year 2000, the restaurant had a net loss of$21,000. No matter what they paid for it and I can tell you they paid a pretty penny for it, a negative $21,000 is not a reasonable return on your investment. In 2001, they lost approximately $4500. Clearly, I think you all can be sensitive that these hard working taxpayers don't go into business, don't go into this very, very difficult service business, work long and hard hours to lose money. The standard is not even losing money. The standard is not achieving a reasonable return on our investment. I would go further because here we're met with two standards, not one. n Because it's not an easy application, I'll grant you that. Each and every use permitted now, can't achieve a reasonable return. The only thing that could be permitted now, god forbid if the place was no longer there, is one single home. For the amount of money that they paid for this commercial property, what were a commercial property and an existing business, mentioning knocking it down, cleaning it up, cost, constructing, one house. Jt is extremely difficult; it's impossible to make a reasonable return on the money. People do not buy existing commercial predecease operating for a couple of years, take losses, then knock thein down to construct one home. I think we meet that burden criteria number one. As a matter of fact, I'm going to add it to another case, St. Albens Springfield Corp. precana. We're going to require bank financing and this is where this case speaks. We're going to require bank financing to do this. And I can tell you that the lending institution is no fools. See a building, and this is the current state and I'll hold it up and I'll show it to the audience. This is the current building. Quite frankly it leaves a little to be desired. It leaves a little to be desired. This is the building. It looks like a box. Quite frankly, it doesn't conform with the character and the nature of the community from an esthetic point of view. And if you can see the proposed construction area, I think that you'll see it rather modest. This is the current building, this is how it looks; its gray, its clapboard, it could be better, it should be better, it should be beautiful. We want to make it beautiful. We want to make it handicap accessible. We want to provide big, beautiful bathrooms. We want to provide a foyer and an entranceway, so people are not as you walk in, and you're allowed to take traditional notice on your own personal experiences, if you've gone to the restaurant, you're permitted to do that. If you go into the restaurant and you happen to have to wait for a table on a Saturday evening in the summertime, the only areas to wait are outside or you're literally right on top of the patrons that are dining. It is very difficult to get into the bathroom because you literally have to walk through tables, there's really no space. And the bathrooms are inadequate. Page 25,February 28,2002 - ZBA Public Hearing Transcript Town of Southold Like I said, it pre-existed for many years. That was permissible back then. It might have been appropriate back then, but it's clearly not appropriate today. It's clearly not appropriate today. What would we like to do? This is the proposal, I would venture to say and this is the last criterion, more in keeping with the character and nature of the community. This is the new building, or the proposed building I should say. Look at it, it's stunning. It's beautiful. It's obviously going to cost a lot of money. CHAIRMAN: Before we conclude this hearing, ladies and gentlemen tonight, we'll have these pictures up here and you'll be able to study them a little bit better. GEORGE TSUNIS, ESQ.: Certainly, Mr. Chairman. It's a beautiful building. It's more in keeping with the character and nature of the community. I think neighbors would be happy, happier to have this proposed building. They would be happier to have this beautiful building, one that's esthetically pleasing. One that is similar, closer to what exists today in terms of style, esthetics and architecture. There has been case law, and I quoted the St. Albins case, where banks when you have situations that render the uses in the ordinance unfeasible create an umiecessary hardship. We're going to need bank financing for this. So we've gone to banks and they said this is what you want to do, you want to spend a lot of money, you're business isn't making any money and you want us to believe in a dream and lend you money so you can renovate and make a more beautiful restaurant. Well, we're going to require that you have a rate of return and it's exhibited in the last two years through financial statements that you can't get a rate of return the way the building is situated. You can't accommodate those customers and make a rate of return. So to get the bank financing, they said you're going to have to make a business that has an opportunity to make a profit so you can pay us back. This exists today, if I can analogize that case, we need a little bit more space so we can enclose a smoking area so we could serve some more patrons, better, and so we can make a rate of return. The second criteria for use variances are circumstances. We don't have to be the only situation in the community. We have to be less than a majority. That's what the Douglaston case teaches us. We have to be less than a majority. What the courts were afraid of is that a Zoning Board would go ahead and once, it's a slippery slope, once they gave one applicant this relief, then everyone would come out of the woodwork and get similar relief. Well that's not the case here. There are no other restaurants in that community. This is the only one; I think we can take traditional notice that it's the only restaurant in this community, in this area, on that block. So if you grant the relief we're requesting, you can do so without any fear that tomorrow there'll be another restaurant that seeks to expand next door or across the street. Like I said, this restaurant has been the subject of an up zone back in the early 1990's. MEMBER TORTORA: Please don't comment while the speaker is commenting, let's show everyone respect. CHAIRMAN: Everybody will be sworn in, everybody will have the right to speak. GEORGE TSUNIS, ESQ.: There's no self-created hardship here. There was up zone, there was an up zone while it was a restaurant. There was an up zone while there was a Page 26,February 28,2002 ZBA Public Heanng Transcript Town of Southold restaurant. And it's equivalent to a take-in. The government took something that did not belong to them and did not provide proper compensation or consideration for it. And if you look at the Muller's case when the courts upheld that, where money has been spent in good faith, on a permitted use, which is no longer permitted, it's proper for the Board to consider the fact, notwithstanding that the hardship was self-created. Its proper for the Board to consider that and it is. And I think everyone would say that up zones, when there's no compensation for it, is fundamentally unfair. This has been a pre-existing restaurant and if it was not for that up zone, we would not be here today. We would literally go to the Building Department, stamp our approvals, provided that we meet all the other codes, and we would be able to have what I'm asking for. We wouldn't need the relief, but not for the up zone. The last criteria are no change in the character of the neighborhood. I call this a practical common sense test. This would bring these premises closer to the character and nature of the community. Like I showed you before, look at the contrast. This is what exists today, not very, doesn't look a lot like a house. This is what we're proposing to look at. Look at it, you would think it would be somewhere between a church and a house; with peaked roofs and dormers and beautiful, traditional windows and clapboard. I think we've spent a lot of time, and a lot of effort, and a lot of money to design something and seek to build something that is more in keeping with the character and nature of the community. We want to provide something that is esthetically pleasing, that is more beautiful. That looks more like what is there today, existing in the community. You will get a newly renovated restaurant. What does that mean? That means brand new compressors, which are quite and state of the art. - We don't have to do that right now, but we'd like to, because we think its sensitive. And-we are very cognizant that we live amongst residents. And I think most people would say, that they've been a good neighbor. In fact, I was told today, I was at the premises earlier, and I was told that in the thirteen years there hasn't been an altercation. You don't have the police or code enforcement running down there every weekend. This is a quite, family restaurant. We want to enhance the service; we don't want to change what we are. Landscaping, very important because there's a complete lack of it quite frankly. It should be enhanced. There should be more. It should also be prevalent around where the most impacted neighbor would be. This is the parking lot of the restaurant. This is the one single tree. What we're proposing, if the Board allows us to, and we can work this out with the impacted neighbor; at our own costs and expense we would like to provide a landscaping plan where, if approved, we would provide mature landscaping, mature evergreen type trees around the entire parcel so as to limit the site visibility onto the neighboring parcels. This is the one existing tree that currently exists. And we would like to put these trees throughout the entire parking lot. This, I'm sure you would agree would provide a much needed and very appropriate buffer to the neighbors. There is another benefit. We're seeking to move the entryway to the side, where the parking lot is. Currently the entryway is literally right at the street. So you, have patrons lingering outside, or you have patrons lingering around in the dining room right on top of people. We would like to take that entryway and close it off, because that's what's visible and put it toward the side of the restaurant where the parking lot is creating nice landscaped area perhaps a park bench, traditional lighting and make a beautiful entryway but take it out of where it is now. So it doesn't impact any of the neighbors. We've prepared for you; this is the existing premises right here that's not colored in. The existing premises roughly Page 27,February 28,2002 ZBA Public Hearing Transcript Town of Southold approximately 2200 square feet. What's colored in is the proposed expansion. We create an entryway that's off the parking lot, not over here where it currently exists, very, very close to the street. It's off the parking lot and it's away from the street. There is an entryway. What also happens is that you open up the door; I mean everyone gets a nice case of that wind that comes off the ocean. You have a nice entryway; you have adequate handicapped bathrooms right here. You have that lift that we were talking about you have that lift that we were talking about that allows access to the dining room for non- smoking customers, because right now we, its very difficult to accommodate them. You have the entranceway into the bar and you have some stools, as you will see, there's no dance floor or anything like that its just a bar with some stools. And then you have a smoking area off the bar used to accommodate smoking patrons. I'm not going to. Yes ma'am. MEMBER TORTORA: The entryway, that's a new entryway? GEORGE TSUNIS, ESQ.: That's a new entryway. The entryway is right here currently. MEMBER TORTORA: Right, is that calculated in the? GEORGE TSUNIS, ESQ.: Yes it is. MEMBER TORTORA: Because I didn't see it on there. GEORGE TSUNIS, ESQ.: Yes. MEMBER TORTORA: The ramp entryway on your calculations. GEORGE TSUNIS, ESQ.: The ramp entryway is a portico. It's really CHAIRMAN: It's an outside portico. GEORGE TSUNIS, ESQ.: It's an outside plan. There was a mistake made, that wasn't figured into what. You can see this area here; this entryway, this foyer and the bathrooms are approximately 364 square feet. There's a utility area here, its about 116 square feet. There is a bar area which is about 480 square feet with access, you have the steps here. And then you have a casual dining area to accommodate the smokers, that's about 495 square feet. I'll leave this here for everyone to see. CHAIRMAN: Mr. Tsunis that again goes back to the discussion that we had in the beginning of this hearing and that is as long as you review every element of this plan with the Building Department, so that we have those figures concrete because the original site plan talks about 2600 existing building area, 2650 square feet, you say the existing building area is about 2200 square feet. All of these figures have to come in and they have to gel so that we have them. Because, as you know and as Mrs. Tortora had told you, that our jurisdiction is based upon this Notice of Disapproval. And it has to be complete, so that's why I don't mean to be redundant about this but Page 28,Febivaiy 28,2002 ZBA Public Hearing Tiauscnpt Town of Southold GEORGE TSUNIS, ESQ.: No Mr. Chairman you're absolutely right, frankly the Notice of Disapproval was achieved before I was retained. I hadn't had an opportunity to visit with the Building Department but I assure you that I will be doing so in the near future. CHAIRMAN: Along with the portico please? GEORGE TSUNIS, ESQ.: Along with? CHAIRMAN: Along with the portico. GEORGE TSUNIS, ESQ.: Along with the portico. CHAIRMAN: Make sure you show that to them also. GEORGE TSUNIS, ESQ.: I certainly will. In conclusion, I would like to say that courts have recognized the ZBA with important and special functions of granting these variances. Before the Manor Reform Church there has been confided to the Board by no less than Justice Benjamin Cardozo. There has been confided to the Board a delicate jurisdiction and one easily abused. I will submit to you that these should not be granted, cavalierly. There needs to exist special circumstances. Upon a showing of unnecessary hardship, general rules are suspended for the benefit of individual owners and special privileges established where the burden of a general restriction creates a special hardship, which I submit to you. Upon a particular owner and the grant of the special privilege to him can in truth, promote equal justice. Promote equal justice. Courts have said that it is encumbered by you with such special circumstances and unnecessary hardships exist, it is recumbent on this Board to promote equal justice. And when I tell you that this property was a subject of an up zone, without any compensation, I respectfully ask you to promote equal justice and grant us the relief requested. Mr. Chairman, Members of the Board, this concludes my presentation. I only ask that, I know that there are a lot of neighbors and, of course, and counsel here, myself and the engineer are here to answer any questions that this Board or the community may have and I would just like to submit to you 159 signatures that were collected by my client. A petition in support of the Elbow East restaurant for their expansion and their renovation. Of the 159 signatures, every single one of thein is a resident of the Town of Southold. There are no employees of the restaurant that are signatories here, and approximately half of the 159 signatures are residents of the Hamlet of Southold. Clearly an overwhelming amount of these neighbors recognize that this is a good quality restaurant and would like to see this relief planted. Thank you. VINCENT ORLANDO: George one quick question? GEORGE TSUNIS, ESQ.: Certainly Mr. Orlando. Page 29,February 28,2002 ZBA Public Heanng Transciipt Town of Southold VINCENT ORLANDO: In regards to the smoking section, does New York State require you to have a smoking section, or is that the option of a restaurant to be smoking or non- smoking? GEORGE TSUNIS, ESQ.: There's no requirement. I think Suffolk County is very aggressive in this, legislation was passed that, for fear of second-hand smoke and they've limited only in public areas such as restaurants that there should be a separate enclosed area for them so they can enjoy an evening out and diners who do not smoke can also enjoy the evening out without the burden of second-hand smoke. VINCENT ORLANDO: But this could be a non-smoking restaurant, if the owner chose to? GEORGE TSUNIS, ESQ.: Well Mr. Orlando, I've discussed with you that this restaurant is already losing money by limiting this restaurant further to non-smoking people, I think it will further lose money and I think they'll be no restaurant. It will be a catastrophe for the applicant. CHAIRMAN: I am going to reserve my option of questioning anything of either you or Mr. Whelan regarding this plan at this time, only because of the perimeters that I've set in the beginning of this hearing. GEORGE TSUNIS, ESQ.: Certainly Mr. Chairman. CHAIRMAN: However, I do want to discuss on the 28th with Mr. Whelan, as well as yourself, the ceiling heights, I'm sorry the roof heights, the overall height of the restaurant itself, the proposed restaurant and so on, and so forth. I'm sorry Mrs. Tortora? MEMBER TORTORA: I just, all of the case law that you sited or you quoted from, if you could hand us up a copy of the entire decision? GEORGE TSUNIS, ESQ.: Certainly. CHAIRMAN: And before the 281h GEORGE TSUNIS, ESQ.: Certainly. Thank you. CHAIRMAN: Ruth any questions? MEMBER OLIVA: No. CHAIRMAN: Vinny, any other questions? MEMBER ORLANDO: No. Page 30,February 28,2002 ZBA Public Heanng Transcript Town of Southold CHAIRMAN: The question I have,at this particular time is, does anyone in the public want to see these pictures prior to the objectors? CONSTANTINE GEORGOPOLOUS: My name is Constantine Georgeopolous. I would like to see the plan that provides the proposed parking space for the new use of these premises. CHAIRMAN: Okay, what I think we'll do then is, we'll just, if Mr. Tsunis and whomever would place all of those on this table back here, so that there's no multiples that can stay there. And if Mr. Tsunis or Mr. Whelan would depict that for you sir, and then at that particular point we're willing to view the other aspects of it. Excuse me one second Mr. Tsunis. Go ahead sir. Could you state your name for the record please? (NAME INAUDIBLE)- Quick question. MEMBER OLIVA: Please use the microphone so that the secretary can pick you up on the tape. CHAIRMAN: And if you're asking a question, I have to swear you in sir. (UNKNOWN NAME) Just a quick question. CHAIRMAN: Just one second, state your name again? Et PAUL STETH: My name is Paul Steth and I own property at 270 North Sea Drive.- CHAIRMAN: rive.CHAIRMAN: Would you raise your right hand? Do you solemnly swear that the information you are about to give us is the truth to the best of your knowledge? PAUL STETH: Yes, it is. CHAIRMAN: Thank you. PAUL STETH: A question about the smoking. Are there any laws in place from County of Southold, Town of Southold, and Suffolk County concerning public restaurants in smoking? CHAIRMAN: All that I know is that the County legislature voted that if you're going to have smoking you have to designate an area. MEMBER ORLANDO: With proper ventilation. CHAIRMAN: With proper ventilation. PAUL STETH: But there's no restriction? Page 31,February 28,2002 ZBA Public Hearing Transcnpt Town of Southold MEMBER ORLANDO: That was my question, it is not required. PAUL STETH: It's not required. So it is not a detriment to income? If its not required its not a detriment. MEMBER TORTORA: You're drawing a conclusion. PAUL STETH: No, I'm asking a question. They've made a point saying if we don't have smoking it's a detriment to our income. CHAIRMAN: That's a matter of opinion. GEORGE TSUNIS, ESQ.: There's a case study out there defining that. PAUL STETH: So it's a mute point. CHAIRMAN: Thank you. Alright, my colleagues seem to want Ms. Moore to have all those persons that are in favor of this application to come forward first. Okay. I guess the first question we normally ask are there any spokespersons, if there are not, we'll start with the center of the room. In other words, a spokesperson in favor or speaking for a group. Mr. Sullivan? Mr. Sullivan would you raise your right hand please? Do you solemnly swear the information that you are about to give us is the truth to the best of your knowledge? GEORGE SULLIVAN: I do. My name is George Sullivan and my wife Margaret and I have been a resident of the Town of Southold for approximately thirty years. The current law that,the Town allows for a quasi-judicial body, the Zoning Board of Appeals, which provides its residents possible remedies and variances against hardships encroaching restrictions. I have previously served as the Receiver of Taxes and a Member of the Town Board, and have experience in legitimate areas, cases, whereby residents deserve relief and consideration from the current statutes. I believe the application before this Board deserves that consideration. I've known the families of the applicants, the Rutkowskis and Berliners for approximately twenty-five years, both on a business and social basis and have always found them to be hardworking and community minded. Their desire to improve the present restaurant facility will, in my opinion, esthetically enhance the existing location, facilitate the restaurant operation, for both patrons and employees and not encroach on or diminish the quality of life for the residents of the Kenny's Beach area. The improvements requested will only add to the beauty of the town, as they're not intended to greatly expand operations for improving with no burden to the surrounding community. The concerns of the voice in opposition of letters submitted are, I believe, not valid. The restaurant theme is that of a family one, not a bar or an establishment with loud music. In its many years of operations, there has not been one altercation involving the police. Not one complaint about noise, or any other legal activity occurring at the restaurant. In addition, I have never"seen refuge or papers strewn in the parking lot or on the ground. I am somewhat familiar with the special needs of the physically disabled, as I am one. I am fortunate in my situation, that many of my fellow Page 32,February 28,2002 ZBA Public Hearing Transcript Town of Southold amputees and others suffering disabilities should have access and comfort if they chose to dine out. The applicants wish to provide this and the new restaurant facilities and entrance design will greatly assist the handicapped and the elderly. In snaking their decisions the Board must consider the good of the entire town, not the specific complaints of a few whose interest may not be that encompassing. I hope the Board will make that correct decision. In summary, I support the application submitted without reservation. Thank you for your consideration. CHAIRMAN: Thank you Mr. Sullivan. Again we're going with the center of the room. Is there anybody else that would like to speak in favor? Mr. Zimnoski you had your hand up before? No. You're going to go with that? Sir, this is in favor now. Kindly state your name? JOHN NICHOLS, JR.: John Nichols, Jr., Southold Business Alliance. CHAIRMAN: Would you raise your right hand? Do you solemnly swear the information you are about to give us is the truth to the best of your knowledge? JOHN NICHOLS, JR.: Yes. CHAIRMAN: Thank you. JOHN NICHOLS, JR.: Good evening to the Members of the Zoning Board of Appeals. The Southold Business Alliance would appreciate the Board's consideration of this matter. It appears to us that this may be another situation where a pre-existing business v has been in operation for a very long time. Besides the obvious questions about setbacks and lot coverage, there is a bigger question, that is on the minds of business people, and others whose property is considered non-conforming, either by property size, the existing setbacks, or by its existing use. We recall a long, drawn out battle between neighbors in the vicinity of Cedar Beach and a pre-existing, non-conforming use of what used to be the General Wayne. That building still languishes unfinished because the neighbors in Town made it so difficult for the owner that he is out of business now. So I have to ask, because a business exists with non-conformities, use or otherwise, are we going to take the path that completely restricts,these businesses from making improvements that they deem necessary for the survival of their business. Or, are we going to allow these businesses some of those entrepreneur freedoms, if not all of them, that other businesses in the town currently enjoy. Just about everything has some kind of non-conformity in my opinion. You may have another thought about that. We would like to think that the very limited amount of business in Southold Town, and I believe its something like 3% of all properties in this town, are business properties. That they will always be able to come before this Board with a fairly good chance of obtaining relief from a Code that often snakes it very difficult to do business in this town or to make an improvement to that business. We from the Southold Business Alliance appreciate your careful consideration on this matter, and we ask you to grant the owners of the Elbow East restaurant the reasonable variances that they request. Thank you. Page 33,Februaiy 28,2002 ZBA Public Heanng Timnscript Town of Southold CHAIRMAN: Thank you sir. Again, anybody on the east side of this room, speaking in favor, we'll go over to the West side of the room, anybody over there that would like to speak in favor? Mr. Goldsmith how are you tonight sir? MR. GOLDSMITH: Fine thank you. CHAIRMAN: Would you raise your right hand and do you solemnly swear that the information you are about to give us is the truth to the best of your knowledge? MR. GOLDSMITH: Yes sir. CHAIRMAN: Thank you. SKIP GOLDSMITH: My name is Skip Goldsmith and I am a lifelong resident of Southold and a local businessman, and I can tell you that the rules and regulations that are coming down the road of businesses today are very, as well intended as they may be, they're very burdensome, and very costly. I felt compelled to come to the Board tonight to express my wishes that this application of the Elbow East be granted. I happen to pick up the Suffolk Times today and I quote you from Gwendolyn Grucock's story that " between a Sports Bar, more traffic, parking, vandalism, speeding, drinking, drugs, late night hanging out, I thought the next thing would be the world coming to an end." And I couldn't believe a project like this could draw this kind of criticism. Most of these problems are not only town wide, but they are nationwide. And I don't see any compelling reason why this should have any effect on this project. My wife and I and family frequent the Elbow East regularly, at risk of an advertisement, I have to tell the food is good, the service is great, the people that run the place and own the place are quality individuals and their main concern is to see that their customers, their clients get the best service and have the best accommodations. That is why I feel very strongly that the Board should recommend this proposal and they be granted their application. Thank you. CHAIRMAN: Thank you sir. Mrs. Moore, I guess we're ready. PATRICIA MOORE, ESQ.: I have memorandum, which I didn't give you copies of the cases,but I will after the fact. CHAIRMAN: We've received a lot of late night reading material this month. PATRICIA MOORE, ESQ.: I think you pointed out right from the beginning that there were inconsistencies in the paperwork that was submitted in the file. And so some of my memorandum is dealing with plans that may be superceded at this point, but I will address them to the extent that they are in the file presently and, if anything, they will be clarified. My first point is that what I saw from the record is that the site plan consists of a plot area which is there's no dispute of us to that, 21932 square feet. There's an existing building, which, again seems to be consistent. Then there's a proposed extension with a cooler area with an entry and ramp. What I did is add up the extension, cooler area, entry Page 34,Februaiy 28,2002 ZBA Public Hearing Tianscnpt Town of Southold and ramp and get a total square footage. I don't know if subsequent plans have done that, but what I see is an expansion from before and after being a size of 4,426 square feet. That is a sizeable expansion. In one notation in the file there's a, they say that its 48% increase in the expansion of the use. My calculations show 59.6% almost 60% expansion of the use. We are dealing with a pre-existing, non-conforming use. That use has, certainly nobody is arguing here that they have to shut down their door and that we are asking them to cease their use. What we are asking is that the expansion be denied. That is something that you're well within your rights to do. The law I site in point 1, which is the standards, which you have to follow, the fact that zoning intends to eliminate non- conforming, the goal of zoning is to eliminate, phase out non-conforming uses. And then some examples of where expansion was reviewed and non-conforming use was not permitted to expand; mobile home parks, a change from a seasonal use to a year-round use required special review by the Zoning Board or applicable jurisdiction in that particular community. What we see when we look at these plans, particularly the layout, the internal layout of the structure is that the expansion is primarily in the bar. What we look at when we see this proposal is an effort to build out a restaurant and bar that is comparable and competitive with Legends, which is in an area that is a commercial area, and receives a lot of activity, is considered a meeting place and a place to have a couple of drinks. I can tell you from my own personal experience that I have represented many a D.W.I. that have been stopped in the Legends area. That is a very lucrative area for most of the local practitioners that appear before the local justice court. That is not to say that this applicant or any restaurant should be penalized by the illegal acts of others. Whether it's littering or anything else. But the reality is that this restaurant is being developed and expanded into a bar, a significant bar in a very residential area. I'm going to skip a couple of points out of my memo, only because it, I think its more irrelevant. The character of the area, if you look back and some of you certainly have a lot more history than many of us that are neighbors and myself, the history here is that this restaurant started out relatively small, as a snack bar, in an area that was predominantly summer bungalows. And you can see that from the history of the Zoning Board of all the variances that have been granted to the residences in this area, which are little bungalows, then being improved into year-round residences. And now, based on the value of the properties in the area, you are seeing actually many more applications for very significant residences. And the neighborhood has turned into a very exclusive, very nice neighborhood with homes that, from your own common knowledge and observations, range anywhere from $600,000 to over $1,000,000 depending on which house you look at. So, again, your own files show that the type of expansion, the type of improvements for the residences. So what started out as a quaint little restaurant has expanded over time? But now it's in the middle of a very nice, very, I want to say exclusive in the sense of being snobby, but certainly in a valuable residential area. So the character has significantly changed and it would make sense that the zoning whether it started out in a conforming use in a commercial area, the restaurant, is now consistent with the rest of the neighborhood, which is a residential zoning district. I point out some issues in my memorandum which are red flags and its actually, why fight this if there are substantial state issues, state code issues that are going to affect whether or not they can or will have aware of it all to make the improvements. The first issue, which I think they need to address with the D.E.C. and with the architect is that, well I'll back up, with the Building Page 35,Februaiy 28,2002 ZBA Public Hearing Transcript Town of Southold Department and their architect is under New York State Fire Prevention of Building Code. When you have a substantial expansion of the structure it triggers the requirement that the entire structure be brought up to Code. This expansion is significant, it is substantial and from very brief review by one of the Building Inspectors, it may in fact trigger the balance of the building to be brought up to Code. Whether or not that actually takes place, I think it's unfair for me to say that the Building Inspector will rule that way. I think it really depends on the plans, it depends on the improvements; and I raise that as an issue because, if in fact, and I have this for many clients that come in with a plan that I sit them down and I say look at this its not the zoning alone, look at how your construction is going to be affected and whether or not you can afford to make the improvements under the State Code. So that is an issue which isn't clear from here, I raise it because why have this entire community get into a confrontation when the owner is going to find himself financially burdened by the renovation of the entire structure. So that's the first issue. The other issue is the F.E.M.A., the Federal Emergency Management Act. The D.E.C. and the local Building Department reviews F.E.M.A. issues. I know this for a fact because I've represented homes that have been improved right along North Sea Drive; do I have the right street? Right alone the water, that if they are in the V Zone, and I could not find what Zone this particular property falls in, but certainly adjacent properties are on piles and other properties that I've been involved in have been required to comply with F.E.M.A. Now F.E.M.A. has a 50% window, which I dealt with on another application. Which you have to prove to them that 50% of the value of the existing structure that you're not exceeding 50% of the value of the existing structure. It is not fair market value, it is not construction costs, it is a amorphous value figure that's a little hard to firm up and what happens is, the F.E.M.A. will look at the existing structure, figure out what the value of it is and sometimes we use construction but its usually old structures so therefore you are not replacing it with $125 a square foot or $150 a square foot using some deviation from that. And F.E.M.A. then says well if you exceed that figure, you now have to bring the entire structure into compliance with F.E.M.A. regulations, which depending again on which develops, may require that the ground, the ground floor elevation be at eight feet or at fourteen feet, depending on which it falls in. I looked at the plans and the plans say, at least one of the set of plans, I don't know if it's a most recent one, it talks about that the existing finished floor elevation of the existing restaurant is five feet, the proposed bar is at eight feet. I'm not sure that that would even comply with the F.E.M.A. regulation. So that is an issue that I think they need to address for their own sake, as well as whether or not we should even be fighting because, again, if F.E.M.A. says, hey guys this is beautiful, there's no zoning issue here whatsoever, hypothetically there's no zoning issue. F.E.M.A. may say again that is a cost prohibitive renovation that they may not consider and words of wisdom think about it now, because you don't want to be at the end of the process when this comes about. I know this from personal experience, on behalf of the applicants, that you start out within the 50%, change orders have to be done throughout the construction process and, this is a public record because it was a previous application to this Board, this Von Zuben case, right there, same street. It started out we were well within the 50%. It was purely a renovation of the exterior, same footprint, windows, and things like that. Any time you do a renovation, you find things that you didn't think you had. All of a sudden that number goes very close to that 50% and you start having to decide whether or not to keep Page 36,February 28,2002 ZBA Public Heanng Tianscrnpt Town of Southold looking over your shoulder on whether or not you're going to comply or not, so that the bottom line is that you bring the whole structure up to the proper elevation so you can find the F.E.M.A. That is something that could easily happen in this situation, again, it depends on what flood zone, I don't want to give thein the worse case scenario, but give them the neighborhood and the other homes in the area it looks like you'd probably have to be up on piles or at least have break-away walls or all kinds of special methods of construction under the F.E.M.A. regulations. Even if the construction itself is below 50%, presently on this application, F.E.M.A. does deal with cumulative expansions, or cumulative improvements. The regulations say, and it makes sense, you're not going to come in peace meal, just under the wire every couple of years to try to stay under the F.E.M.A. regulations of the 50%. I went back and I looked at the history of this property and the improvements that have been made on this property, followed the Building Department, in 1983 Pastaldi and Vanderlask, they purchased the property. At that time, it was a one-story frame block building with a wood deck. It was relatively small, and I have as Exhibit A, the site plan or the drawing of the structure. You can see its pretty limited, pretty small. In 1984, the Zoning Board actually was asked for a variance. The variance that was requested was denied. Alternative relief was granted. Now I don't know what the zoning of that parcel at that time, because he said it was up zoned. I presumed it was non-conforming but it could have been about the time when it was the change of zone occurred, because it says 164. When I go back tomorrow, I'm going to r check and see if 164 what zoning district that was in. Was that residential or was that under the commercial. Either way, if it was commercial and you applied and you granted a variance, even at that time, if it was conforming, you believed that it was inappropriate to grant more relief than what was requested. At the time, they asked for a small 10 x 35, well they requested 12 x 35 seating area, they were granted 10 x 35 seating area and-a small vestibule entrance on North Sea Drive. So they dealt with the entrance, they changed the entrance at that time. At that point, in 1984, the Zoning Board granted the minimum relief necessary. In 1989, Cliff and Phil's obtained permits for repairs. Now what I have, let me see what exhibit I have, I think its exhibit C, yes exhibit C. Without much fanfare it looks like, I don't know that they went through site plan, I don't know that they went through anything. It looks from the record that they may have had a kitchen fire, which anytime that an existing business has a casualty like that, a fire or an unexpected casualty there is relief, there is consideration. The Building Department took it upon themselves without further review from any other board to allow further repair of the roof, replacing the framing members which no longer are structurally sound, so structural repairs, replacing all the windows, replacing the wood flooring, removing existing wall coverings, insulation, installing new insulation and wall coverings so its consistent with fire and the kitchen was brought to Code standards. This was all done, again, in 1989, so there was, the present building right now works. It has worked and it has been improved since 1989 and received quite a number of improvements. Again, going back to my F.E.M.A. argument, those improvements, if they were done at one time today, you do evaluation, you figure out how much whether its under the 50%. That, together with today's application, which is the current application, I think throws it so far over that 50% that I can't see how F.E.M.A. would look at this in any other way. So, again, I don't like to see whether its in opposition to an application or in favor of an application, an applicant going through an exercise in futility Page 37,Febtuaiy 28,2002 ZBA Public Hearing Tianscnpt Town of Southold if he cannot financially pursue this, don't make the adjacent property owners, because who I represent are the adjacent property owners, with all due respect to the patrons and other residences, I know thein all, they're all fine, upstanding citizens of the community, the people that are here and who hired me, are the adjacent property owners who are directly effected. Finally, certainly you're familiar with the Health Department regulations, sanitary systems would require review; that is certainly not within your jurisdiction, it's the County Health Department, however, this is an environmentally sensitive area and it is an issue that you should keep on your mind. CHAIRMAN: Mrs. Moore I just want to tell you, you know you have a second chance at this. PATRICIA MOORE, ESQ.: Yes, but now's the time. Because there will be more I'm sure later on. I'll try to wrap it up for you, so you can go home. Lot coverage obviously is an issue here; it was, from the documentation it looks like the 78 persons are presently permitted to occupy. It's not clear from the site plan, what the occupancy is going to be with this proposal. I think that that is something that we would all want to know. Issues that are inadequate at this point are parking requirements. They are proposing to put parking along North Sea Drive and Kenny's Road which would require backing out onto the street into a residential area in a public beach area. Also, the fact that they have used the Town Beach part of their numbers, or attempt to use part of their numbers for parking, the residents have told me that many times the beach is blocked off because of piping clover, nesting areas, so we can't count on that and it does create a problem down there. I haven't seen the proposed site plan with the landscaping and so on, certainly there is some natural growth there, the proposal we have to review it. But there was nothing in the file that showed any landscaping and I will hold onto any comments until we review it. Also, another issue that is very significant to the neighborhood is the fact that you are, the intensity of the use, not only structurally in expansion, but also the use, certainly they want to increase the business and we understand that. The hours have historically been lunchtime to 9:00 p.m. This is going to be significant expansion to the bar. Under the New York State regulations, bars are permitted to stay open, the time I had I believe its 4:00 in the morning, anywhere from 2:00 to 4:00 in the morning. They would supercede any attempts by the Town to limit those hours because the State overrides any conditions of that nature. The Use Variance criteria, have not been met. They bought this building within the last two years I believe. They knew what they were buying when they bought it. The fact that they want to make it handicap accessible, that's admirable. And that can certainly be accomplished with no expansion of the use or no expansion of the structure; it can be done with access ramps and the rest, which nobody, I think reasonably, would object to an access ramp. That is not something that, we have neighbors who are also handicapped and that is not a reason to expand the structure by 1400 square feet, almost doubling the size. Architecture improvements, well yes, we agree that this place could look a lot nicer, but again, that does not require an expansion. It's a lovely design, in my opinion personally, however, in a commercial zoning district this would be a lovely restaurant. In this, at this piece of property it should be what it is now in size, with architectural improvements. And that again, does not require any relief from this Board. It is not a taking to have an up zoning that, the r - Page 38,February 28,2002 ZBA Public Heanng Transcnpt Town of Southold Board is well aware of that and given the character of the neighborhood was appropriate at the time it was done in the 1980's. We will certainly continue you this in March, and we will certainly be happy to answer any questions that you might have. I think that some of the issues I raised are very important ones that I think the applicant will probably check because I think that they're important for them, not just for us. Thank you. CHAIRMAN: On the east side is there anybody that would like to speak against this application? Yes sir. Please state your name for the record Sir? CHRISTOPHER POPPEI: My name is Christopher Poppei. CHAIRMAN: Do you solemnly swear the information you are about to give us is the truth to the best of your knowledge? CHRISTOPHER POPPEI: I do. First of all I want to say that I don't have any objections to the restaurant. I bought my house about a year and a half ago, and when we moved in we went and spoke to Mr. Forrester who was then at the Building Department, and we asked him, the restaurant was next to us, could he expand or could he do with anything with the restaurant. We were told by him, definitely not, don't worry about it; buy the house, there's no problem. I myself used to go over and have a beer and a burger in the restaurant. What disturbed me was I went in there about two months ago and the bartender was standing there with the plans out on the bar telling everybody about this gigantic bar they are going to put in there and how they're going to put in TV sets and they're going to have a bar on this side, a bar on this side. We're going to have the entire crowd; we're going to steel all the crowd from Legends. This is what got me really uptight. He's telling the whole crowd that was in there how we're going to have this big bar and and we're going to get all the locals to come in here and everything else, and I think the whole handicapped thing and everything else is great, but I think he's looking to put a big bar in this place. The third thing I wanted to say is my house, can I show you this picture, and this is my house right here. This is a large leeching field, okay. The prior owner of my house called me and said that she was forced to sue the owner; the old owner of the restaurant and the builder who was building this house also was involved in the suit. They were forced to sue him to have him move both their wells, because this leeching field contaminated both wells. They won the suit and they had to have these wells moved to both the other sides of the houses. Some of the other wells in this area are all contaminated because of this leeching field down here. She tells me and I can't swear to this that it was improperly installed by the old owners not by the new owners, which I think is a very important health thing for the whole area and the environment. The last point I want to make is, he wants to put an entrance on the side. He wants to put a side entrance in. The side entrance will face right here to this gentleman's house and this house right here, and there's another house over here that isn't in the picture. The side entrance, people will be coming right out into the lot, right next to this gentleman's house, Mr. Steth's house when he put the side entrance in over there. CHAIRMAN: Anybody else on the east side, yes ma'am? Could you kindly state your name for the record? Page 39,February 28,2002 ZBA Public Hearing Tianscript Town of Southold PATRICIA POPPEI: Patricia Poppei, 282 North Sea Drive. CHAIRMAN: Do you solemnly swear the information you are about to give us is the truth to the best of your knowledge? PATRICIA POPPEI: I do sir. Thank you. I have a couple of kind of rhetorical questions that may not be answered this evening. They may have to wait until the meeting of the 281h As my husband just said, prior to the purchase of our home we checked with the Building Department here and spoke with Mr. Ed Forrester. He assured me that there could be no alterations, amendments, expansions, etc. to this particular restaurant because it was non-conforming in many different uses, the building, the lot, and the fact that the restaurant was a non-conforming use or business in a residential area. I think when the new owners purchased the restaurant; I think they probably knew these things as well. I also apologize if I'm being a little redundant. When they purchased the restaurant, I knew the restaurant was making money. I've been coining to Southold since 1978 and the restaurant was always a busy place. However, it was only a seasonal restaurant, as many of you remember. It was open during the warmer months, the spring, the summer and the fall. Now, of course, with new owners, they're keeping it open all year round. I don't know if they checked to see if the restaurant was making any money before they bought it. I think when you buy a restaurant, or any business, you certainly don't buy if you know you are going to have negative backflow, you're not going to make money on it. So I really don't feel that it's my responsibility or the other residents in the North Sea, Leewood Drive, Kenny's Beach area, or the Kenny's Beach Association Membership to be worried about whether or not his purchase of the business is making money for him. Our concern is our quality of life. Rhetorically also, we should sacrifice our quality of life for smokers, I don't think so. Up zoning—up zoning allowed this particular business to remain in existence. Nobody said, we're wiping you out, you are allowed to stay, and I think that there are older residents here who remember when it was, as mentioned before, a little tiny snack bar, which has grown like topsy. I think it's grown to the size that it belongs. I am more than happy to see it remain that way. It is a comfortable, nice restaurant with a nice family atmosphere. However, I have noticed this winter, the noise has increased. I haven't called the police. Maybe I should so that it is on record. I have seen garage, I have seen people leave their dogs locked in the cars while they go into the restaurant and the dogs yap all evening long. In addition, the entrance is being moved, I might add to my husband's comments the entrance will now not be on North Sea Drive, where there seems to be a little bit of a buffer, but now they will face this large portico or whatever it is on my bedroom window, Mr. Steth's bedroom window and our other neighbors off our right-of-way. I feel that this is not a proper thing as well. Reasonable return, I'm really sorry. Everybody goes into business, some people make it, and some people don't. I invested in my real estate; I don't want to lose value either. But it looks like there's a possibility. A restaurant losing money, their investment, once again, did they check into it before they purchased it as we checked and were assured by the Town that nothing could happen to change this restaurant and the way it existed? Esthetically pleasing, I don't think that's esthetically pleasing to me. I live there with all my other Page 40,February 28,2002 ZBA Public Hearing Transcript Town of Southold neighbors, its very pretty, it belongs a suburbanized, more commercial area. It does not belong in the Kenny's Beach area. Thank you very much. CHAIRMAN: Thank you. Is there anybody else on the east side? Seeing no hands, we'll go to this side. Yes sir? State your name for the record? JOHN CASAMATIS: John Casamatis, 3735 Kenny's Road, north and across the street from the restaurant. CHAIRMAN: Kindly raise your right hand; do you solemnly swear the information you are about to give us is the truth to the best of your knowledge? JOHN CASAMATIS: Yes it is. CHAIRMAN: Thank you sir. JOHN CASAMATIS: I have several questions also. In my opinion, 1989 it was refurbished. Many of those compressors had to go up on the roof because of F.E.M.A. flood zone. They couldn't be down on the ground level. I don't see any compressors on this roof here. I hear those compressors all night long. So if this place is going to v become bigger, we're going to have bigger compressors. They're going to make a lot of noise. You're taking up a lot of parking. Kenny's Road is parking by permit only. Do we start calling the police every time somebody parks on Kenny's Road to go -to the restaurant? Is it our responsibility to provide parking for a non-conforining business in a residential area? I like the restaurant the way it is. I frequent the restaurant. I think it fits right there the way it is. To expand it like this, I think the counsel made a great argument for the handicapped and I think they get into most of the restaurant. I don't see where it's our responsibility, as a community; to make this to me it appears it's a rule to make this a Legends on the Sound. And if that's what it is, once you give the approval, like the opposing counsel said, State Liquor Authority takes over and they can stay open till four o'clock in the morning. But I ask a question; does the Town of Southold have cabaret licenses? CHAIRMAN: No to my knowledge. JOHN CASAMATIS: So that means live music could be placed in that restaurant without any permit of any type from the Town of Southold correct? CHAIRMAN: That's a very interesting question. I don't know the answer to that right now. JOHN CASAMATIS: Neither do 1, but I pose that question. And since we don't have any noise ordinances in this town and we hear from the vineyards, people that are living a thousand, two thousand feet away from churches that have festivals and it becomes a town wide controversy, my neighbor here is only less than 100 feet away from the restaurant. I'm lucky; I'm four or five hundred feet away. The other neighbors here are 6 Page 41,February 28,2002 ZBA Public Hearing Transcript Town of Southold only a few feet away. So this is a consideration. I didn't hear anything about live music, noise ordinances or anything like that. That's something that should be considered. I know you cannot force them to make any guarantees. So this is something that I think you should consider. CHAIRMAN: We can force them to do anything we want that's reasonable. JOHN CASAMATIS: Is it enforceable? CHAIRMAN: Anything we want that's reasonable. JOHN CASAMATIS: But is it enforceable? MEMBER TORTORA: I don't agree with that. CHAIRMAN: You don't? Okay. JOHN CASAMATIS: That's all I have to say tonight. Thank you. CHAIRMAN: In the center again? Sir? You've been very patient, would you pull that microphone over to you a little bit. Please state your name for the record? CONSTANTINE GEORGOPOLOUS: Constantine Georgopolous, 1330 North Sea Drive. CHAIRMAN: Raise your right hand please. Do you solemnly swear the information you are about to give us is the truth to the best of your knowledge? CONSTANTINE GEORGOPOLOUS: Mr. Chairman, Members of the Board I have been a resident of the Town of Southold since 1990 and I've been vacationing here since 1966 and have been in the Kenny's Beach area since 1970. Indeed, the restaurant once upon a time was a refreshment bar. I remember, Mr. Tsunis said he doesn't think that there's anybody who could remember it, but I can assure him, I remember it and some of my neighbors very well remember it. It was a frankfurter stand, and it's grown now into a restaurant. Most of my comments have been addressed by other speaks this evening, but there are a few items that I would like to take up. Although there appears to be a 47 or 51% increase in the space, Mr. Tsunis did not explain how did they account for the loss of the parking space. But of course, naturally, the loss of that parking space will spill over into North Sea Drive and also onto Kenny Road. We all know that there are no sidewalks either on North Sea Drive or no sidewalks on Kenny Road. We also know that there is no city lighting on either of those roads. Again, I know from personal knowledge in the evening and on weekends, there are many pedestrians walking either east or west on North Sea Drive, and north and south on Kenny Road, children on bicycles, and mothers with baby carriages. In the evening, I've been witnessed to speeding cars going north and south on North Sea Drive without the proposed restaurant as the owners plan to construct it. As it is now, there is some, I don't want to say drag racing, but because its Page 42,February 28,2002 ZBA Public Hearing Transcript Town of Southold not two automobiles, but there are speeding cars in the evening. What's going to happen, what will happen when this proposed bar, and by the way, it was a speaker who spoke in support of the restaurant that sports bar. What's going to happen if there is going to be a sports bar there, and then you have patrons leaving at 1:00 and 2:00 and 3:00 speeding up and down these roads. It's going to be a problem, a very serious problem. It's going to be a problem in the evenings with pedestrians on those roads. We don't want this to become another Claudio's with what goes on in Claudio's. Last time I recall reading in the newspaper that there were New York State Police undercover agents at Claudio's watching out for drug deals. I don't think we want that in a residential, we don't want it at all. Certainly not in a residential area. Again, this is a residential area; it's certainly not a commercial area. We don't want that here. We also don't want a repeat of Lizzie Grubman's episode in the south shore. Not that we know if it will happen, but we don't want those types of people in this area. As it is now, I see families going there. My wife and I patronize the restaurant from time to time. I see elderly senior citizens; I don't see motorcycle patrons in there now. I don't know if there will be motorcycle patrons in the future, but there may well be. To quote Mr. Tsunis, he referred to "quote hard- working" people that own the business. What about the hard-working residents that are paying mortgages and that are paying taxes. Not one or two or three but all of them. What about their interests, don't they have rights, don't they have interests? I believe they do. I also believe that the petition that Mr. Tsunis presented to the Board should be looked at critically to see how many of those signatories were north of the North Road and within the boundaries of Horton's Point, Horton's Lane, Kenny Road and Lake Drive and Drive. I would be curious to know how many local residents in the Kenny Beach area signed that petition. I think its if I may say so. That tenninates my address to the Board this evening. Thank you. CHAIRMAN: Ma'am in the back? Come up and use the microphone ma'am. Kindly state your name for the record ma'am? MARYANN MURTAGH: My name is Maryann Murtagh. CHAIRMAN: Could you raise your right hand please? Do you solemnly swear the information you are about to give us is the truth to the best of your knowledge? MARYANN MURTAGH: Yes it is. I live on Soundview Avenue, not too far from Kenny's Lane. Our home has been there for a very long time. My parents lived there and my grandparents before that, and I must say that we used Kenny's Beach all the time. We have for many years, probably going back to the 1940's when my grandparents moved there. My grandmother was Agnes McCabe, whose family McCabe's Beach was named. I must say that I feel that I need to speak out a bit on this. I must commend the owner for their wish to improve the outside of their building; I think that should be done. I think they're some improvements that should be done regardless of the expansion aspect of their project. I think, the part of the building near Kenny's Road needs definitely to be improved. Essentially when you walk up toward the beach, alongside the restaurant virtually you see hanging out in the back because Kemiy's Road view includes both the back of the restaurant. I think that definitely should be improved, it the Page 43,February 28,2002 ZBA Public Healing Tianscript Town of Southold neighborhood to have that aspect of the restaurant so prominent as you walk up the street. However, I think the fact that apparently they want to improve the sports bar or have an active bar as opposed to a bar that just delivers drinks to tables, I think should not be allowed. I don't know how that is controlled by the zoning aspect of the problem, but the fact of the matter is, if indeed as the lawyers said, this is a family restaurant. There should be no reason to have a sports bar. In fact the emphasis in any expansion, if its allowed, should be with the emphasis on using it as a formal restaurant, not for a sports bar and active bar. One of the main issues that I have great concern about is, in fact, the water supply in our community. We have adequate, but limited water supply at our local field wells. We do obviously have now access to Suffolk County Water, but the fact is Suffolk County Water provides in the local community from the local field wells and I don't see that having an expansion in this project will, I actually feel concern that an expansion in this project will over the years contribute to the jeopardy toward the quantity of that water. We are expecting to have a problem with water in the future in general. I don't think we need to have greater stress on our local field wells and the next spills over to, what about the septic tanks? If you have a greater need for water, you're going to have a greater need for disposal of your waste. That concerns me really a great deal. As far as the issue of parking is concerned, I have to tell you that several times during the summer I walk up to Kenny's Beach parking lot and do my own private canvassing, to just see how many cars have Southold stickers. And I have to tell you that I've been there three times last summer, basically between 30 — 40% of the cars don't have stickers. I don't know if some of those people are in the restaurant or not, I'm sure some of them are right on the beach. But I can tell you that the police don't keep the numbers down in that regard. So if they don't keep the numbers down in regard to the number of cars that are in the parking lot without stickers, and also they don't keep the speeding cars from coining up on North Sea Drive. Because I can hear them in my house and I live on Soundview Avenue. I don't even live up on North Sea Drive, but in the summertime, you can hear those cars on weekend nights, and its bad. I really feel for the people that live up on North Sea Drive. Now if the police don't keep those two issues, those two problems under control now, and then you add on more cars coming up to this restaurant, and a so-called sports bar that would stay open at night. I think you have a very big responsibility to see that, in fact, the laws of this community are obeyed, that is the Zoning Laws, and that in addition to that the people the cominunity where this restaurant is, are respected and their wishes carried out. Thank you. CHAIRMAN: Thank you. Is there anybody on the west side? Seeing no hands. Mr. Tsunis I would really like to wrap this up tonight. GEORGE TSUNIS, ESQ.: I will be very brief Mr. Chairman. CHAIRMAN: Hold on, yes after him. GEORGE TSUNIS, ESQ.: Mr. Chairman I appreciate the opportunity to respond, I think some of the neighbors concerns are well placed, we sympathize with thein and its our desire to work with them. And perhaps I could meet with learned counsel and some of the neighbors to see where we can find the areas of compromise in working together, Page 44,February 28,2002 ZBA Public Heanng Transcript Town of Southold because it is our intent on doing something that is sensitive and working with the community and I'll make an effort to reach out. Begging Mr. Forrester's pardon, there is a mechanism in the Town Code that the legislative body enacted that allows a non- conforming use to be expanded. It is Chapter 100-243AIB. You have to go to the Planning Board, granted, but I'd like to analogize it, that you can increase your current building by 30%, which is approximately 850 square feet. It produces substantial enhancement of the overall site landscaping and natural vegetation which we're proposing to do, and improvement of the best visual practices by upgrades to existing building facades and/or designs of new buildings to make it more historic in existing of rule of character which we're also trying to do, so that there is a mechanism to expand non- conforming uses. I think the legislative body took great pains to say; in special situations we do recognize that there is such a need. Secondly, Mr. Chairman there was a lot of discussion about the exclusive nature of the neighborhood. Learned counsel Moore spoke about the increase value of homes. Those homes are going for $600,000 to $1,000,000. I would venture to guess that this restaurant has been here for a long time and I think in the last years, the property values have gone nowhere but up with the restaurant there so I think we have been a neighbor that has a lot of property values to increase. Now there are many safety valves and layers of approvals in any project. Whether it be the New York State Fire Prevention and Building Code, F.E.M.A., the 20% lot coverage, Health Department, I will stipulate to you right now, we will follow all of them.-We will comply with all of them, and if we can't get those approvals, this project doesn't happen. And that's the way zoning and Building is designed. But it's not the issue before you. I think it serves to skate a little bit, but I will say that we will stipulate that we will comply with F.E.M.A. We will comply with the Health Department. As far as, the young gentleman mentioned compressors. I stated that.in my application, that with a new and improved restaurant where a lot of money will go into refurbishment and improvements, you will have an enhanced sanitary system. You will have brand new compressors. You will have a more beautiful building. You will have a restaurant that is more sensitive to the area. I appreciate the comments that came from the neighbors and counsel. I think what people have is a fear of the unknown sometimes. And perhaps its incumbent on us, the applicants, to sit down with thein and explain to them very, very seemingly and clearly what we're proposing to do. There is a concern that we are going to become a Legends. We're not Legends, we're not even close to Legends. I don't think anyone would remotely call us that. It's a family restaurant. It is smaller than the Legends. The bar is certainly smaller than Legends; the entire restaurant is smaller than Legends. It's a different clientele. It is one that several of the neighbors who have apprehension here, have admitted that they frequent and that they enjoy. These don't seem to me the type of people that are bikers and drug addicts, and things like that. They seem like good neighbors who go there to enjoy a nice meal. It is not the owner's intent to create Legends. It is not the owner's intent to create a sports bar. Some of the neighbors said, well can we force them to do that? Mr. Chainnan, you said yes you could. I agree with you. Respectfully, Mrs. Tortora disagrees with you. I'll tell you what can be done, covenants that run with the land. We'll sign covenants; we'll file them with the clerk that addresses many of these concerns. Covenants that will not allow this place, that is completely enforceable. They will always run with the land and can't change, so it Page 45,February 28,2002 ZBA Public Hearing Transcript Town of Southold does not become a Legends and it just becomes a better family restaurant; something it's always been. Thank you very much. CHAIRMAN: Before you sit down, Mrs. Tortora? MEMBER TORTORA: Who are covenants enforceable by? GEORGE TSUNIS, ESQ.: Ma'am you have a Code Enforcement Department here? MEMBER TORTORA: No, who are covenants enforceable by? GEORGE TSUNIS, ESQ.: They are enforceable by anyone. In an action, in a court of law; they're enforceable by the Zoning Board. Any grant, any grant that this Board makes, is revocable if the conditions and covenants are not met. If you say, Mr. Tsunis we're going to grant such and such expansion or such and such a use or such and such a relief provided that you comply with X, Y and Z. If you don't comply X, Y and Z that grant is lifted. That grant is lifted. So its enforceable by this Board and enforceable by your. MEMBER TORTORA: You would be willing to agree to covenants, for example, I'm serious, let's go down this road. That would address the concerns, it would not become a drinking establishment, it would not become, not now or ever, you would sign such covenants? GEORGE TSUNIS, ESQ.: You know Brandise once said; the best thing to septic is sunlight. Let's get it out in the open; we're a restaurant that has a bar. We do a modest bar business, but if you look in our bar on a daily basis, I think you'll find people from the community, people that are a little bit more mature and not the type of patrons that Legends has. We have heard a lot about the surrounding property owners being hurt, if the drag racing and drugs and all this sort of things come into our community, I can't agree more. The person who would be most hurt would be my client, the applicant, they certainly don't want that; they've never been that type of establishment. They're not seeking to be that type of establishment. So with learned counsel, Ms. Moore, in consultation with her clients and the neighbors, with the Town Attorney's office, I would be happy to sit down and draft some reasonable clients that speak to these valid issues that the neighbors have. MEMBER TORTORA: Thank you. CHAIRMAN: Mr. Tsunis last point, and again I hate to be symmetrical, but you will leave no stone unturned in reference to what's been presented to you. Of what you've presented, what your clients have presented and what Miss Moore has dealt with tonight. GEORGE TSUNIS, ESQ.: Mr. Chairman, I'm a little embarrassed. I agree with you and quite frankly I agree with Miss Moore as to the site plan. We can do better, we should do better, and I will clarify things. I would also like an opportunity to meet with Miss r Page 46,Febramy 28,2002 ZBA Public Hearing Tianscnpt Town of Southold Moore if I could and if we could have-a little bit more time. If you can schedule us in April, instead Of May 281h, it will give us a little bit of time to possibly work things out. MEMBER ORLANDO: One more question, Mr. Chairman? CHAIRMAN: Surely. MEMBER ORLANDO: Have you done any calculation on how many parking spots you can get on your property? GEORGE TSUNIS, ESQ.: Yes sir. There are, a number of neighbors felt about that. This building is not going into the parking area. The proposed expansion, if all of it is granted, it does not go into the parking area. The parking area is currently unstriped. This provides a tremendous opportunity to stripe it, to pave it, to make it better. We have a site plan that has 43 parking spaces that will comply with Code and no part of the proposed expansion goes into the parking lot. We are able to completely park this structure on the premises. Do not need a municipal lot and do not need parking on Kenny's Road or the neighborhood to do that. _ MEMBER ORLANDO: So 43 is enough to accommodate your client? i GEORGE TSUNIS, ESQ.: 43 is enough. MEMBER OLIVA: Then where is the expansion going to take place? y, GEORGE TSUNIS, ESQ.: If I may? This is the parking lot. This is the proposed construction area. As you can see it's this grassy area to the side. That's where the proposed construction area will be. It's not onto the impervious surface space where the parking is. MEMBER OLIVA: That's going to be 1700 square feet, right in there? GEORGE TSUNIS, ESQ.: No ma'am, we're going to have, its probably closer to 1400 square feet. In the calculations, and we clearly were ambiguous, its not Miss Moore's fault. We included a cooler area, that already exists in the building. It was included in the proposed expansion. That clearly is 115 square feet- that lessens it by. They also included the portico area as building areas and you see it's just a column where it's really not considered closed floor area. So that was inadvertently included, it would lessen the amount of square footage that we're seeking. But again, like I said, that is our oversight, we'll correct that, and I'll have something. CHAIRMAN: Will you stay for a couple of minutes after the hearing to show everybody who hadn't seen the privilege of your? GEORGE TSUNIS, ESQ.: I would be glad to. Page 47,February 28,2002 ZBA Public Hearing Tianscnpt Town of Southold CHAIRMAN: Last issue, everything that is before us, must go back to the Building Department. You must get this corrected Notice of Disapproval. My suggestion to you and your client is that we recess it without a date, you call us and since we have to re- advertise anyway with the latest Notice of Disapproval, it will then at that time that we will address all these final issues. GEORGE TSUNIS, ESQ.: I don't think it benefits anyone to rush this process. We want to do it right and we want to do it with input with the community. I'll be happy to do that. CHAIRMAN: Man with the red shirt, you were first. Remember you're still under oath. PAUL STETH: Paul Steth, I talked to you before, I live at 270 North Sea Drive. Maybe we covered some areas that are kind of redundant. If you want to have smoking or not smoking, that shouldn't be a consideration. That's like gold chandeliers or smoking or non-smoking that should not affect you. The second thing I want to bring up here is parking. Currently, on a Friday, Saturday or Sunday night the cars are overflowing in the existing restaurant. Now they say they have 40 spots, that's 80 people, that's 40 tables. I assume they don't have that problem. But obviously there are in parking. When I walk down my property line the cars are parking in the road. They're not in the parking lot. There's no buffer zone around the property. They're parking right up to my property line all the way around. There should be a ten-foot zone all the way around. So already you're going to lose 40 cars. The other thing I want to bring up is they seem to have 350 feet of access to this property. There's no driveway cut. I have an access to my property of 12 feet to my driveway. Everyone else here has about 12 feet of access to his or her property. If you go there you can pull into this property, 120 feet down Kenny and 200 feet down North Sea Drive. Now they're going to eliminate this? This is going to get curbed, where CHAIRMAN: I hate to be PAUL STETH: This is what I'm saying should be considered when they're drawing these plans. Because they're making it sound like it exists as it is. CHAIRMAN: First of all we don't do parking. Parking is done by the Planning Board. PAUL STETH: Well I'm just bringing this up, because when they draw this up they're going to drop a plan that exists like it exists now. You're referring to an improved community. You want to make it nicer, put in ramps. They haven't put in a ramp yet, but they're going to do it after they get the improvements. They haven't yet put in a ramp for people to go in, for handicapped. They haven't done this yet. I don't know why they haven't. I don't know why they haven't limited the parking. I don't know why they haven't fixed up what they want to do. So if they haven't done things that don't require your approval to snake us feel it's wonderful. Let's listen to what they have to say. They want us to approve everything first, put in the ramp, fix up the parking, solve the problem then come back to us and say now we have a problem. But they haven't done that, they Page 48,February 28,2002 ZBA Public Hearing Transcnpt Town of Southold want us to give them everything first. Put in the handicapped ramp, solve the parking problem, stop parking in the street, create the buffer zones, get rid of the loud noises, get rid of the fans running all night, solve all your other problems. Then come back and say okay, we've done everything just to make-it nice for the community. We need help, then we'll help you,but not before that. Okay, thank you CHRIS POPPEI: There are a tremendous amount of residents down there that are older couples that live in Florida, or go away for the winter that are not around this time of year. I got a call from a lady in Florida, another one from France who are very interested in this, and would love to be here., I'm wondering counsel I see wants to wait a month or two, I wondering if we should put this off to maybe May or June and when all these other summer residents, people who own houses down there can be here and voice their opinion too. There is a tremendous amount of people I tried to get in touch with that are not around this time of year. They own houses down here, they've owned them for many years, they're taxpayers and they have a right to say something too. It's being done in the middle of the winter and a lot of people are not around, so maybe this is something you could take into consideration. The second thing I was going to say is, the parking business, I know you don't, if you add another extension he's going to need more parking. CHAIRMAN: We would urge you please to get in touch with these people,and have ' them reduce their opinions to writing. CHRIS POPPEL• A lot of them did that, because I know Oto your attention. Thank you. n. CHAIRMAN: What's the question, sir? Give me the scope. UNKNOWN GENTLEMAN: The reason for the size of the sports bar. CHAIRMAN: It's not a sports bar. UNKNOWN GENTLEMAN: The large bar. CHAIRMAN: I assure you we are not granting, if this Board grants anything it will be an addition to a family restaurant. That's only if it intends to do so. Ma'am last time. I need you to use the mike and please not as lengthy as you were before. nnur}0-L,5h MARYANN MURTAGH: If you have a hole in the wall, if you have a good enchilada people will come. They don't really need the expansion to make more money, what they need is better food. CHAIRMAN: Sir, the man in back of Mr. Tsunis, you did not speak tonight sir? Gentleman in back of Mr. Tsunis. You need to state your name for the record because you didn't get up. t Page 49,February 28,2002 ZBA Public Heanng Transcript Town of Southold (name inaudible) My name is from 3070 Kenny's Road right across from the restaurant. CHAIRMAN: Do you solemnly swear to speak? (NAME): The seating capacity for the expanded restaurant in numbers? CHAIRMAN: We're going to get that. We are going to get every possible, single element that we can possibly imagine before this thing will be closed. (NAME): Thank you. CHAIRMAN: Mrs. Moore knows what we request. Mr. Tsunis we haven't had the pleasure of you being before us. But I think we've had some family members in the past before us. You might want to talk to them. But we will leave no stone unturned. So whatever you can do for us only makes our job much easier. Okay. Thank you again Mr. Tsunis as you offered to stay around just to point out a couple of things to anybody, we will appreciate it. 10:00 End of Public Hearing J ZONING BOARD OF APPEALS Town Hall Office ri 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Email: Linda.Kowalski Town.Southold.n .us or Paula.Ouintieri(Uown.Southold.n3:.us http://southoldtown.northfork.net (631) 765-1809 fax (631) 765-1823 (alt. 9064) TRANSMITTAL To: Jerry, Lydia, George, Ruth, and Vincent DATE: q/ Jo /2002 _ �,4 T� REF: Hearing Date: F / Appl. of { x ) Info attached for your information and review. Thank you. Panc+c affarhpck e Dennis & Diane Harkoff Fine Fond, Spirits &Sports September 26,2002 �I Ms. Patricia Moore,ESQ. RESTAURANT 51020 Main Road Southold,NY 11971 Re: Zoning Hearing-Elbow East(a.k.a. Cliff&Phil's Lobster House Restaurant) Dear Ms. Moore: I am co-owner of Legends Restaurant in New Suffolk and take exception to some of the remarks made about Legends at the last ZBA hearing about Cliff s Elbow East. I would like to be assured that the focus of the next ZBA meeting in October is the Elbow East, and that no further disparaging comments are made about Legends. From the talk around town at the time of the February meeting, as well as the transcript itself,there were far too many criticisms, innuendoes, insinuations and accusations about Legends made by both attorneys. I found the words of the general public who came to voice their opinion at the last meeting to be far less distasteful than the rhetoric I heard_from the learned counsels on both sides. 'We have worked far too long, too hard and sacrificed too much-f6listen to Legends' good name being publicly bashed by so=called`•`professionals"at a,ZBA meeting. As a matter-of-course, I don't put up with a lot of bunk, whether it's from employees or customers, or, for that matter, attorneys at ZBA hearings! Legends is first and foremost a.restaurant. We have two talented chefs, one of whom graduated from the Culinary Institute of America in Hyde Park,NY. For two years running'we've received accolades and a"very good to excellent" food rating in the ZAGATSURVEY of which we are very proud. We were mentioned in the National Geographic's Guide to Small Town Escapes as well. Although we have a large bar with many TVs, we are not a "sports bar"and abhor that label; our primary business is dining. Our decor has a tasteful sports theme with handsome oak&brass accents. Our dining room has tablecloths, fresh flowers and all the other accoutrements of fine dining. We run a fine restaurant and a law-abiding establishment. How dare anyone malign Legends or our patrons! If you denigrate our patrons you are denigrating all of our neighbors and colleagues who happen to be upstanding citizens from all walks of life: local politicians, doctors, lawyers, contractors & fellow business owners. If you re-read the transcript, I believe that you will agree that a short public apology is warranted at the upcoming meeting. Be the professionals that you were educated to be. Don't build your case, by tearing someone else down. No one likes to be "put down"publicly. Keep in mind that age old admonition: Do unto others as you would have them do unto you. Make your moms, wherever they are, proud that they did firmly instill in you these seeds of morality! Remember, I would very much appreciate your keeping Elbow East; and not Legends, as the center of attention at the hearings. - cerely,; ox 321 35 First Street • New-Suffolk,-New`York'11956 - el: 631-734-5123 Fak-""631=734-2642 1 Diane Ha tel:- www.northfork.com/legends l Dennis & Diane Harkoff ' September 26, 2'002 Fine Food, Spirits & Spnrts Mr. George Tsunis,ESQ. R E S TAURANT Rifkin and Radler,LLP EAB Plaza Uniondale,NY 11556 Re: Zoning Hearing-Elbow East(a.k.a. Cliff&Phil's Lobster House Restaurant) Dear Mr. Tsunis: I am co-owner of Legends Restaurant in New Suffolk and take exception to some of the remarks'made about Legends at the last ZBA hearing about Cliff's Elbow East. I would like to be assured that the focus of the next ZBA meeting in October is the Elbow East, and that no further disparaging comments are made about Legends. From the talk around town at the time of the February meeting, as well as the transcript itself, there were far too many criticisms, innuendoes, insinuations and accusations about Legends made by both attorneys. I found the words of the general public who came to voice their opinion at the last meeting to be far less distasteful than the rhetoric I heard from the learned counsels on both sides. We have worked far too long, too hard and sacrificed too much to listen to Legends' good name being publicly bashed by so-called "professionals" at a ZBA meeting. As a matter of course, I don't put up with a lot of bunk, whether it's from employees or customers, or, for that matter, attorneys at ZBA hearings! Legends is first and foremost a restaurant. We have two talented chefs, one of whom graduated from the Culinary Institute of America in Hyde Park,NY. For two years running we've received accolades and a"very good to excellent" food rating in the ZAGATSURVEY of which we are very proud. We were mentioned in the National Geographic's Guide to Small Town Escapes as well. Although we have a large bar with many TVs, we are not a "sports bar" and abhor that label; our primary business is dining. Our d6cor has a tasteful sports theme with handsome oak& brass accents. Our dining room has tablecloths, fresh flowers and all the other accoutrements of fine dining. We run a fine restaurant and a law-abiding establishment. How dare anyone malign Legends or our patrons! If you denigrate our patrons you are denigrating all of our neighbors and colleagues who happen to be upstanding citizens from all walks of life: local politicians, doctors, lawyers, contractors &fellow business owners. If you re-read the transcript, I believe that you will agree that a short public apology is warranted at the upcoming meeting. Be the professionals that you were educated to be. Don't build your case, by tearing someone else down. No one likes to be "put down"publicly. Keep in mind that age old admonition: Do unto others as you would have them do unto you. Make your moms, wherever they are, proud that they did firmly instill in you these seeds of morality! Remember, I would very much appreciate your keeping Elbow East, and not Legends, as the center of attention at the hearings. ncerely, 1f PO ox 32 35 First Street - New Suffolk, New York 11956 - Tel: 631-734-5123 - Fax: 631-734-2642 Diane Harko www.northfork.com/legends cc: John Griffin,ESQ. Three Village Professional Center 46 Route 25A, Suite 8 East Setauket,NY 11733 Anthony Rutkowski Elbow East Restaurant Katherine Rutkowski Kenny's Road&North Sea Drive Southold,NY 11971 Gerard P. Goehringer Chairman Zoning Board of Appeals 53095 Main Rd Southold,NY 11971 TOWN MEMO/TRANSMITTAL TO: ZBA Chairman and Members FROM: ZBA Office DATE: February 20, 2002 SUBJ: Cliff and Phil's Lobsterhouse Restaurant ZBA Appl #5051 (for Feb. 28, 2002 Public Hearing) Please find attached copies of the following which were added to the above ZBA file: In opposition: Letter from R. and S. Schur Letter from V. Vilar E-mail message sent by regular mail from P. and S. Sedita. P.S. Other letters were distributed and copied separately (please see official file for reference dates if needed). J J Robert&Shelia Phone: (631) 765-3287 8310 Sound®iew Avenue, email bobragmondG onc&'Pon Schur Southold,NY 11971 ATane.com Sunday, December 16, 2001 Zoning Board Of Appeals 53095 Main Rd. P.O. Box 1179 DEC 1118 �0 Southold, NY 11971 Dear Sir/Madame; As 20+ years frill-time residents in the immediate vicinity of The Elbow East Restaurant,we have serious concerns regarding their application for expansion. In it's current state,the restaurant is a pleasant part of the locale. We occasionally dine there, finding the food and service quite satisfactory. We have no gripe with the establishment or its owners and staff. However, it is in an otherwise completely residential,non-commercial area- Currently unobtrusive, an expansion can only lead to greatly increased traffic and the other annoyances that especially accompany public dining establishments with larger alcohol-serving bars. We respectfully request that The Elbow East Restaurant's variance application be denied. Sincerely, Robert&Shelia Schur /91 `~ �v �� --- —'—'----- f� � ~�_' '-------'' | �� -4� ��� l '--'---------'----� � . ) fl- 4 A-4 ' @87 � � .v"" �� � o . � ` ' � Juno e-mail for KERichterl-�-,uno.com printed on Wednesday,, P-bruary 13, 2002, 8:47 AN I Q' V , From: Silver217 aol.com To: Linda.KowalskiCcDTownofSouthold.ny.us Cc: kerichter@iuno.com Date: Mon, 11 Feb 2002 08:17:52 EST FEB 'Y Subject: Cliffs Elbow East Appi�cation for'Sports Bar License' February 11, 2002 Dear Ms. Kowalski;'` My wife and I have lived and enjoyed Southold for over 20 years, are active in the community and are members of the Board of the Kenny's Beach Association. We reside at 1110 Leeton Drive and find the area beautiful and peaceful. Unfortunately over the years we have had problems with the parking area for Kenny's Beach, when young people gathered after hours to drink and party. The end result was a lot of noise, dangerous conditions from drunken drivers speeding along Leeton Drive, as well as the surrounding areas, and vandalism. We had to call the police on a number of instances, on one occasion at two o'clock in the morning, when a group of young persons stopped their car, took a piece of our split rail fence and hurled it at our driveway light. All very unpleasant experiences, which negatively impact the beauty of our area and Southold in general. Fortunately, most of these unpleasant activities have been corrected. However, as a member of the Kenny's Beach Association it has come to our attention that Cliff s Elbow East Restaurant has submitted an application to expand its function to a 'sports bar.' This is both surprising and extremely upsetting. Surprising, since its status,as a restaurant seems questionable, given that this is a residential area with no other commercial establishment. Therefore, we question the legality of its present existence. Its application as a 'sports bar' compounds this situation dramatically, given that as a 'sports bar' Cliff s Elbow East would serve as a magnet to attract young people whose primary purpose will be to party and have a good time. The inevitable result will be drinking, dangerous activities including speeding and other traffic violations, and most important, a major negative impact on the safety, tranquility and beauty of our area. As taxpayers, long time residents of Southhold, and members of the Kenny's Beach Board we strongly oppose Cliff s Elbow East Restaurant application for 'sports bar status.' We further question, its right to exist in our area. This is a residential area, there are many young families with children, and 101 /- Juno a-mail for KERichter',-,uno.com printed on Wednesday„ I-bruary 13, 2002, 8:47 AN the real estate values (and accompanying taxes) have risen significantly. Cliff s Elbow East Restaurant represents an ever present danger to the area's quality of life. We strongly oppose its application as a 'sports bar' and question the legality of its present status as a restaurant in a totally residential area. We plan to take whatever action is necessary to stop this preposterous application. Respectfully yours, Priscilla and Sergio Sedita 1110 Leeton Drive Southold, NY 11971 J LOIL JESSE CORDON ATTORNEY AT LAW 125 RIVERSIDE DRIVE 5TH FLOOR _p . NEW YORK NEW YORK 10024 _.�-: =�, t=; �,� �`,`•�! �`_l�1 TELEPHONE: (212) 877-8977 FACSIMILE: (212) 724-0591 111 1 1 September 5,2002 Mr. Gerald P Goehringer Chairman Town of Southold Zoning Board of Appeals P.O. Box 1179 Southold,NY 11971 Re: Cliff's Elbow East Retaurant Expansion Application Dear Mr. Goehringer and Members of the Southold Zoning Board of Appeals: I am writing you this letter to strongly urge you to deny the expansion application of Cliff's Elbow East Restaurant. As a member of the Kenny's Beach Civic Association and long time weekend resident of 1625 North Sea Drive,I firmly believe that Cliff's Elbow East proposed expansion application, if granted, will do great harm to the residential character of this community. My home is but a few short steps away from Cliff's, and there can be no question that if allowed to expand, that my quality of life and the quality of life of my neighbors will be substantially affected. Increased car traffic,noise levels, and a greater influx of commercial patrons are certain to profoundly change the nature of this community. I am certain that in making your determination that you will take all pertinent factors into consideration and make a fair and lawfull decision. It is important that you remember,however, that the Kenny's Beach area is, except,for Cliff's restaurant, a residential community. I would very much like it to stay that way! Very truly yours, /7�Jesse Gordon JEG/jeg MNEVIBEACNOMC Pobox 881 AMMATION Southold,NY Thursday,August 29,2002 IJ ---1 Mr.Gerard P.Goehringer,Chairman , AUG 3 ® )2 Zoning Board of Appeals,TOS P.O.Box 1179 Southold,NY 11971 Dear Mr.Goehringer, Once again I am writing to you to express the views of the members of the Kenny's Beach Civic Association regarding the expansion application of Cliffs Elbow East Restaurant,located on Kenny's Road and North Sea Drive in Southold. For years this establishment has been seasonal,operating only in the summer.In fact It was originally a hot dog stand"shack"serving summer beach patrons.The present owners have elected to remain open for business during the winter. We feel if this application is granted,our quality of life will be diminished and homeowners will suffer with added traffic,inadequate parking,increased bar trade,etc. Mrs.Pat Poppe,a Director of the Association,will be presenting in person,a petition signed by approximately 100 property owners who object to and will be erected by this expansion. We urge you and the members of the Zoning Board of Appeals to deny this request. Very truly yours, t1ineRichter, President MNETS CMC LMOIATION SOUTHOLD NY 11971 UL I� J i l� Thursday,August 29,2002 i` SSR `- 1 Mr.Bennett;Orlowski,_Chairman Planning Board,TOS ---��� Main Road Southold,NY 11971 Dear Mr.Orlowski, I am writing to you to express the views of the members of the Kenney's Beach Civic Association regarding the expansion application of Cliffs Elbow East Restaurant,located on Kenney's Road and North Sea Drive in Southold. For years this establishment has been seasonal,operating only in the summer. In fact,it was originally a hot dog stand"shack"serving summer beach patrons. The present owners have elected to remain open for business during the winter. We feel if this application is granted,our quality of life will be diminished and homeowners will suffer with added traffic,inadequate parking,increased bar trade,etc. Mrs.Pat Poppe,a Director of the Association,will be presenting in person,a petition signed by approximately 100 property owners who object to and will be affected by this expansion. We urge you and your fellow members of the Planning Board to deny this request of Cliffs. Thank you for your cooperation. Very truly yours, � r , Arline Richter, President R ell) WJ 3 4 b SEP 03 2002 Southold Town )( 7/13 f � FEM s�=r; FEB 2, 5-2002 To whom it may concern, L L 4— p < ,Yp 10 My wife and I have lived and enjoyed Southold for over 20 years, are active in the community'and are members of the Board of f the Kenny's-_Beach_Association. We reside at,, � G? w m' and find the area beautiful'and peaceful. Unfortunately over they ears we have had problems with the . parking area for Kenny's Beach, when young people gathered ; . after hours to-drink and party.The end result was a lot of noise; dangerous conditionsfrom drunken drivers speeding along Leeton Drive, as well as the surrounding areas, and vandalism. q _ We had to cal!=+h6=police oh a Number cf'ins tances, on one, --- occasion at two o'clock in the morning, when a group of young persons stopped their car, took a piece of our split rail fence and hurled it at our driveway light. All very unpleasant experiences, which negatively impact the beauty of our area and Southold in general. . Fortunately, most of these unpleasant activities have been corrected. However, as a member of the Kenny's Beach,-, Association it has come to our attention that Cliff's Elbow East Restaurant has submitted:an-application to expand its function to a `sports bar.' This is both surprising and extremely upsetting. Surprising, since its status as a restaurant seems questionable, given that this is a residential area with no-other commercial establishment. Therefore, we question the-legality of its present existence.- Its application-as a `sports bar'",'," compounds this situation dramatically, given that as a `sports = bar' Cliff's Elbow East would serve as a magnet to a&eict,young people whose primary purpose will be to party and have4g"ood time. The inevitable result will be drinking, dangerous'activities including speeding and other traffic violations, and most important, a major negative impact on the safety, tranduility`and beauty of our area., .k As taxpayers, long time residents of Southhold, and members of the Kenny's Beach'Board we strongly oppose Cliff's'Elbow East Restaurant application for `sports ba,r status.' We' further' S ' question, its right to exist in our area. This is a. residential'area�, u k -- there are many young families with children, and the real estate values (and accompanying taxes) have risen significantly. Cliff's Elbow East Restaurant represents an ever present danger to the area's quality of life. We strongly oppose its application as a `sports bar' and question the legality of its present status as a restaurant in a totally residential area. We plan to take whatever,action is necessary to stop this preposterous application: ; 'Respectfully yours, . , _ k 1 MP Kowalski, Linda From: ' donald j stanton [dvstantonQuno.com] Sent:, Wednesday, March 06, 2002 9:00 PM To: , Linda.Kowalski @Town.Southold.ny.us Subject: Fw: Fw: Elbow East Expansion --------- Forwarded message ---------- From: donald j stanton <dvstanton@juno.com> To: Lida.Kowalski@Town.Southold.ny.us Date: Wed, 6 Mar 2002 14:58:50 -0500 Subject: Fw: Elbow East Expansion --------- Forwarded message ---------- From: donald j stanton <dvstanton@juno.com> To: Linda.Kowalski@TownofSouthold.ny.us Date: Sat, 16 Feb 2002 10:02:58 -0500 Subject: Elbow East Expansion I want to go on record as opposed to any expansion of the restaurant on the corner of Kenny's Rd. and No. Sea Dr. . The present facility is a nuisance because of the cooking odors and traffic that it brings. I am opposed to anything that would make the present situation worse, and expansion of the restaurant would certainly worsen the present nuisance. Thankyou. Donald & Virginia Stanton 1450 Leeton Dr., Southold, NY 1 Fred K. and Dorothea T. Salzberg FEB 2 5 2890 Kerwin Blvd Greenport,NY 11944-2745 (631)477-9733 - February 22,2002 Mr. Gerard P. Goehringer, Chairman Southold Town Board of Appeals Town Hall 53095 Main Road Southold,NY 119711-0959 Re:' Appeal no. 5066 and Environmental Review 3040 Kerwin Blvd, Greenport,NY, 11944 Dear Mr. Goehringer: We, the undersigned Fred K. Salzberg and Dorothea T. Salzberg, residing at 2890 Kerwin Blvd, Greenport, NY 11944-2745 ( also known as lot 9 on M/O August Acres, Section 1, Arshamomaque, Town of Southold, NY ) and located immediately adjacent to the subject property,make the following statement: We believe that the house and proposed detached garage will be an attractive addition to the neighborhood, and urge that the variance requested by Posillico Construction be approved. Sincerely, a - NO,V,� cc Board of Trustees, Town of Southold Posillico Construction LL �_ ZONING BOARD OF APPEALS 11 FEB 2' 53095 MAIN ROAD P.O. BOX 1179 SOUTHOLD,NY 11971. l........ . Dear Sir/Ma&m. We are the owners of 4070 Kenny's road app. 150 feet from the Cliffs Elbow Restaurant. We are OPPOSED to any extension of the restaurant and Bar as requested by the restaurant/bar owner for the following reasons. 1. This area is strictly residential . 2. The extension will increase traffic and noise. 3. There is not sufficient room for parking space after the extension.. 4. The additional traffic will be danger to the children in the community. 5. The extension of a commercial establishment in a residential zone will depreciate the residential property values. Sincerely John&Katherine Katramados February 18,2002 102 Ludlow Court Cary, NC 27513 February 19, 2002 � Fi �%?� �j i Linda Kowalski !� --- ---- -��- - Fax: 631-765-9064 Dear Ms. Kowalski, sent you an e-mail on this subject, but understand that you prefer a signed fax. want to let you know of my serious concern about the expansion of Cliff's Elbow East, in particular because of the great increase in traffic it would cause. hope the Board will include my opinion in their consideration-at the 2/28 meeting. Thank you -- Sincerely, Lyn aught 405 Lake Drive Southold, NY 4, ..ICJ �� � c/ V y 7 Member of the Board of Zoning Appeals ° Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. we the undersigned support the proposed renovation and expansion. NAME ADDRESS 1. t' 2. 3 ' 4. -2 /d 5.44d4)t,1 U/2 12 j dhlyl, Q-A' �A 6. � 7. �r �_ /�od Q �. 8. 4 o f J 12 A"L iukt- 12. ) t-1L ,9j1Vw 13. 14. .,- A. (7-b �s oto,d L) 15. KA v1", Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. We the undersigned support the proposed renovation and expansion. NAME ADDRESS ,2. 5. 6 rs ! 6. 7. 9. 10. l f- 12. - 13. 14. Z", S s�.�-t � s° ,�•, � ltg7l Member bf the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. We the undersigned support the proposed renovation and expansion. NAME ADDRESS 51�to 21 4. 7: 8 12. o P 13. � ac� 14. reo Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Efbgj East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. we the undersigned support the proposed renovation and expansion. NAME ADDRESS 2-2 y- 3. 3. a e ' � 11� 4. v. O/vo I/ --,el GaCc 5. a y v f C A® ,may. ---- -_ 7.,Wtn- Z;LW=Z�L'� 60fi f I 1h 8. 6� _0 9. 10 11. ),� 12. 13. _ U. 1 15. Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. 'We the undersigned support the proposed renovation and expansion. NAME ADDRESS N&J �i?r-�o��� rill�'. - f►� "� 2. TU 1 6b 3 L ■ 4. --Ala 6. 7. 6 8. score �c P�7 ll I � 9. 6 � f�i r ,� z� 10. r 2 20 'sac, X,i'or,,-I4-e 5oa�Ji�d�� 12. S do cJ,.✓�.�.5 ,�� /moi 13. 14■ r " 15. 1 rna Clsklo R r ern �- - Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. We the undersigned support the proposed renovation and expansion. NAME ADDRESS LL'eft )t"- 2. i^d Ic- L-C-. 3. Sl .S6vL c 4. <S" -c� t y Z", r, Sou- /ql. 5. t/ � - L:�:�- " ;1�4- LI(go ltll�q C4,--,l W6,&I g/j 6. o(� S k A Cdr (II- 1 7. 9. /Z- &I 9?�r 10. 15. 12 Member of,the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act)compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. We the undersigned support the proposed renovation and expansion. NAME ADDRESS 1. P'm IFF/T 1W ()-�S H Y�to F�16 9a 904 V� 3. r2 4. CC) 0 ►O.e.( L4'�,I 0-�tCh MS l I COS 7. L y\ w � LA/ CA'4yye 1N q 1(A,'35, 8. 11■ b ��c 12. �aX 13 go 9 Alm -rVC12 tv- - /(,?5 14 — 7 G. 119 saZ r Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. We the undersigned support the proposed renovation and expansion. NAME ADDRESS 1. A All 1 12 ��J�jj�U Ay 11921 3. s h it971 4. 5. Me COa ,40re ST c )f - 6. /� � - t► 1 StWDoj) ) f)LA 12. 13. 15. Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. We the undersigned support the proposed renovation and expansion. NAME ADDRESS D 2. ��� r�r � 45. . I^ 7v err 7. Ij —2 9 o 1-9 35 v-t/�3 C , 8. - �ca / 9 3 S — 10. 2ZX� ass d dl" 11' 12. r 13. t __ C) L'e- r- 14. o 15: Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 Petition in Support of Elbow East Restaurant Elbow East Restaurant is seeking to renovate and expand its restaurant by approximately 1300 square feet to create new ADA(American Disability Act) compliant bathrooms, a new enclosed dining room for smokers and to completely renovate its existing restaurant. we the undersigned support the proposed renovation and expansion. NAME ADDRESS 1. U uA l C i< 6L i t 6 4. ` a o�� r'C�✓ 5. U 6. 3s dog, Wj9. J v) ? � /�8 3 °x 16 S� I� AI V 11 f�7) 70 12. 35 7 9-AA l �7 14. 15. Y ` 40 t•.r Member of the Board of Zoning Appeals Town of Southold Town Halle: Southold, N.Y. 11971 Petition in Suivorfbf Elbow East Restaurant Elbow East Restaurad ing to renovate and expand its restaurant by approximately �et to create new ADA(American Disability Act) compliant bayenclosed dining room for smokers and to completely renovate i aurant. we the undersigned support the proposed renovation e , nsion. NAME ; ADDRESS 2. Z � .t 410 ■, d 6. h. 41 e1af5 &IrOno 46- 7. - 1 r 8 9■ 10.- 11. 12. 13. 14. 15. l Member of the Board of Zoning Appeals Town of Southold Town Hall Southold, N.Y. 11971 = ion in Supporfofglbow East Restaurant h 12 r Elbow East Restaurant is s ing to renovate and expand its restaur ;t y approximately 1300 square t to create new ADA(American Disabili ;j ct) compliant bathrooms, a n nclosed dining room for smokers and to c �pletely renovate its existing r urant. we the undersigned ��6 ,y support proposed renovation and expansion. ME ADDRESS ,s. 2. fnni on Cocsc� 16o --Lo1P4 V.Poo� 3. 4. 4. 5 6. 7. 8. 9. 1�. 12. 13. 14. 15. FEB-27-2002 1'B:00 PAPD-GWB 1 201 346 6060 P.01i01 3735 Kenney's Ria®' PO Box 129 — p Southold NY. 119.7.1 February 27, 2002 FEB 2 8 �2 Linda Kowalski Zoning Board of Appeals 'own of Southold Main Road Southold NY. 11971 Dear Linda Kowalski: Elbow East Restaurant it is my understanding that the above-mentioned non-complying Elbow East Restaurant has requested a variance to expand their business_ I would like to voice my objection to this expansion for the following reasons. • We built our home across the street in 1979 and the restaurant was at that time quite a bit smaller than it is today. • Over the years, Air Conditioning, Refrigeration units, spot lighting have been added and these units are run all night long making substantial noise. • Over the years, the clientele has grown and the larger crowds have brought quite a bit of garbage that winds up across the street on my property. • Expanding the restaurant so as to have an active BAR will create an atmosphere that is not in keeping with the quiet waterfront residential area. • A BAR crowd would-also change the nature of the restaurant the intention of the owner is to make the 13AR into a sports bar conoept, with juke boxes and live entertainment. This would cause an adverse impact on the quality of life in the immediate area. • 1 plan to attend the meeting w John V. Kessimatis TOTAL P.01 ZONING BOARD OF APPEALS I r f 53095 MAIN ROAD ,�fi�i ` j FEB 2 P.O. BOX 1179 SOUTHOLD,NY 11971 Gentlemen We are the owners of 2315 Kenny's road, close distance from the Cliffs Elbow Restaurant. We are OPPOSED to any extension of the restaurant and. Bar as requested by the restaurant/bar owner for the following reasons. 1. This area is strictly residential . 2. The extension will increase traffic and noise. 3. There is not sufficient room for parking space after the extension.. 4. The additional traffic will be danger to the children in the community. 5. The extension of a commercial establishment in a residential zone will depreciate the residential property values. ASinc rely A PA-71--41 Anastasia and Michael Pantazis February 22,2002 ROSIL,nl, ROSICKI & ASSOCIAIzS; P.C. ATTORNEYS AT LA W Main Office: One Old Country Road, Suite 200 Carle Place, New York 11514 Telephone (516) 741-2585 r Facsimile (516) 741-4748 �!�,� �-r--- -=r ►.' ����;t �`�� cNosicki@rosicki.com FEB 2 B VIA FAX 631-765-9064 AND OVERNIGHT MAIL February 27, 2002 Zoning Board of Appeals Town of Southold 53095 Main Road PO Box 1179 Southold, New York 11971-0959 Att. : Linda Kowalski Re: Elbow East Restaurant Expansion Calendar Date: February 28, 2002 Dear Zoning Board: We are the owners of 395 North Sea Drive, Southold New York. Our home and property are across the street from the subject property. We strongly oppose this application since it will have a severely detrimental effect on the entire community in many respects : 1 . INCREASED TRAFFIC will undoubtedly cause more AIR and NOISE POLLUTION. It' s simple. More cars, more fumes . More people, more noise. AND that means noise right until 4 AM when the Bar/Restaurant closes . The Bar/Restaurant is across the street from Kenny' s Beach. As we all know, noise carries for a long distance in the open space by the beach. Why, even simple conversations by our neighbors on their properties across the street and 2 doors down can be heard by me ! This also means not only more noise, but noise that lasts almost the whole day through-until 4 AM when the Bar/Restaurant closes ! Unfortunately, drag racing (North Sea Drive is an ideal strip for this) and drunken brawls, tend to be by-products of Bar/Restaurants . We do not welcome the thought of these hazards, either. All of this means that when our windows are open, we will not be able to get quiet rest (a purpose of a home in the country) or sleep, until 4 AM. 2 . Increased traffic means more ACCIDENTS . CHILDREN live and play in the streets surrounding the Bar/Restaurant . CHILDREN go to Kenny' s Beach across the street from the Bar/Restaurant. Some of them live there for 3 months straight in the summer, hardly leaving the area, because they don' t go to school. Instead, they play ball in the street, ride their bikes in the street, walk to Kenny' s Beach, etc. Basically, these children spend their day in that area. Since Kenny' s Beach is located DIRECTLY ACROSS from the Bar/Restaurant, and considering Kenney' s Beach is the only beach in walking distance for about 1/ mile (up to Route 48) , there is a lot of pedestrian traffic in general to the beach all day long. Just look at all the people at the beach on a given summer day. 3 . PARKING is an issue. More visitors to the Bar/Restaurant requires more parking. However, there is no more room at the Bar/Restaurant location as it presently exists . SO, the only other places to park are Kenny' s Beach Parking lot or on the road. Kenny' s Beach Lot is owned and maintained by the Town of Southold, which means it is owned and maintained by the residents of Southold, for their use exclusively, and paid for out of their taxes . More cars mean higher maintenance- to repair and replace asphalt, clean-up garbage and police to patrol. Is every visitor to the Bar/Restaurant going to be a taxpayer in the Town of Southold? I think not . The only other place to park additional cars is on the street. As for us, our new water meter was in the road for less than a month and it had to be replaced because a car crushed it. We do not want to keep paying to replace the meter and /or its encasement . We are probably not alone in foreseeing the possibility of assessing the Town for that cost if this appeal is approved and this incident occurs again. Our only other alternative is a fence . Who will pay for that? And why should we be forced to make this expenditure involuntarily? 4 .There will undoubtedly be more GARBAGE in the area: more people plus more food equals more GARBAGE. The Town has very strict guidelines re: waste processing and recycling. We are very proud and pleased that it does . That is one reason why we chose Southold as our place to live . 5 . Of course, there are the usual increased incidences that are likely to occur with more non-Southold residents; the visitors that are likely to visit the restaurant : increased crime, damage to real and personal property, harassment to residents, nuisance to residents . As it is, for the last 2 years, almost every homeowner on North Sea Drive has repeatedly had their mailbox smashed by vandals . And had to pick up beer bottles, cans and cigarette garbage on a regular basis . We are proud to be Southold Residents, a Town known for its exceptional natural resources and preservation of the environment . Please do not change the quality of life we have come to know and love here at North Sea Drive, Southold. Very truly yours, Thomas P. Rosicki, Esq. Cyn/ hia Rosic i, Esq. 4 FEB 2,7 ZONING BOARD OF APPEALS 53095 MAIN ROAD P.O. BOX 1179 SOUTHOLD,NY 11971. Dear Sir/Madam. We are the owners of 805 Leaton Drive close distance from the Cliffs Elbow Restaurant. We are OPPOSED to any extension of the restaurant and Bar as requested by the restaurant/bar owner for the following reasons. 1. This area is strictly residential . 2. The extension will increase traffic and noise. 3. There is not sufficient room for parking space after the extension.. 4. The additional traffic will be danger to the children in the community. 5. The extension of a commercial establishment in a residential zone will depreciate the residential property values. Sine,erely Polyxeniand Ath Bios Marin0s February 22,2002 �i PO Box 1825 l) (2325 North Sea Drive) Southold,New York 11971 22 February, 2001 Mr. Gerard P. Goehringer, Chairman Southold Town Board of Appeals Town Hall 53095 Main Road Southold,New York 11971 Re: 1)Elbow East Restaurant Sports Bar Application; Zoning Board of Appeals Meeting: 28 February, 2001 Dear Mr. Goehringer and Members of the Board: Here we go again! In May•2000, it was necessary for me to,attend three.hearings regarding;a variance request for a non-compliant structure at.2225--North,Sea-Drive•(Applici ion-No.-4780). _That application was subsequently.approved with.various covenants .regarding structure placement and shrubbery plantings. It is now February 2001-and those covenants/stipulations of approval have not been complied with. Therefore, I can only infer that once a variance is granted, there is little/no follow-up by Southold Town to insure compliance with the requirements of variance. This brings me to Elbow East Restaurant's application/request for expanding its function to a "Sports Bar." It is my belief that,the Board's function/responsibility is to address present Town Code. Pre- existing, pre-present,:code structures should not be granted additional relief/variance. The Board's decision should not be influenced either by a previous Board's allowances or older Town Code in considering additional variances to what appears to be a non-compliant structure to present Code. Any change that I may want to make to my property must comply with present Town Code and that should also be true for Elbow East - or is it that there can be alternate interpretations of Code for a commercial vs. a residential owner. As I am sure you have seen before, a petitioner many times hide their final intended purpose in a veil, of overly,exaggerated-requests with-the expectation that .a Board will compromise and approve•some of therequests. In this case;there,should be no.approval/compromise whatsoever. The building;business,and,lot are non-conforming and any approval,will only lead to additional issues—now and in the future. 1 t r � The request references utilizing "municipal parking" (at Kenny's Beach). This is laughable. Southold residents must obtain permits to park at the beach and the restaurant intends to utilize this facility as their own. Other than the fact that I am paying to maintain this facility through my tax structure, how could it be patrolled (if the request were granted) to insure that those parking there were for the restaurant and not utilizing the Beach? Maybe Elbow East intends to issue their own beach permits? The parking lots at both Kenny and McCabe's Beach also have a history of late night problems and many times it has been necessary for Southold Police to station a presence in the lot to minimize unwanted and illegal activity. Police Logs can be retrieved to document this. It is also a simple and logical assumption that if this petition is granted, additional unwanted activity at these beach parking lots can be expected. This request for a "Sports Bar" apparently has to be driven by expected increased profit; therefore, it is appropriate to understand where a profit would be generated. As it is a "Bar" request, it is obviously not by food consumption—which leads to the conclusion of the increased probability of unwanted activity caused by alcohol consumption. Will the Kenny Beach parking lot become the center of this unwanted activity or will it simply become a public restroom for people leaving the Bar? And, if loiterers are chased from Kenny's Beach, we can expect that they will simply move to McCabe's Beach parking lot to continue, as both.areas cannot be patrolled at the same time. My concern is simply maintaining property value. Considered solutions should not affect my equity. I feel I have an obligation to conform to the various Town Laws and Building Codes - which were,a significant influence in my purchase in Southold Town, and which are in place to maintain my property value. The Board has a responsibility to insure that any action considered is not detrimental to affected parties. Residential property owners on North Sea, Leeton Drive and Kenney's Road have the potential to lose much more than a restaurant, which could be sold 01V to a third party once a variance is approved—leaving the area residents with,the problems. And, I have to expect,based upon present experiences as I noted in my first paragraph,that if any approval/relief is given, that there will be no follow-up inspections and periodic review to insure compliance. A Sports Bar on North Sea Drive, to utilize Boards terminology: would not "preserve and protect the character of the neighborhood, and the health, safety, [and] welfare of the community. " There appears to be is absolutely no benefit whatsoever to granting this petition other than increased unwanted activity. The petition must be disapproved in its entirety! Respectfully submitted, John F. B 2 No-brainer The issue really is too complicated to detail in this tight space, but we have a word of advice for the Southold Town Board: Please follow the Zoning Board of Appeals' lead on the question of subtracting insult from injury when it comes to increasing the size of nonconforming buildings (see story, Page 21). Regardless of what the de facto past practice may have been, current realities should preclude any homeowner or business owner from building a second-story addition, for example, on top of the footprint of a preexisting, nonconforming addition. Former Town Board member Ruth Oliva said it best this week when she said: "They'll be able to lean out of their bathroom windows and shake hands." To put it in the most basic terms, two wrongs don't make a right, and the Town Board needs to ratify the ZBA's more recent interpretations as soon as possible. Anything less only will serve to accelerate the suburbanization that's taking place all around us. Click here to send a response. Copyright 2002,Times/Review Newspapers.All Rights Reserved. 2.fivi"p L &-0"nuil 02/26/2002 14:45 5167197984 STANLEY WALDSHAN PAGE 01/01 0 CAROLE & STANLEY WALDSHAN 271-33D GRAND CENTRAL PARKWAY FLORAL PA K1 NY 11005 171�FF'501 February 26, 2002 =-J-- FEB 2 6 )2 Zoning Board of Appeals 53095 Main Road P.O. Box 1179 Southold,NY 11971.-0959 Via Fax 1-631765-9064 Attn. Linda Kowalski Re, Elbow East Restaurant Expansion Qentlernen: We have lived at 1525 North-Sea Drive for the past 35 years_ Duhring this time we have endured a growing number of vehicles traveling our street. Unfortunately too many people driving at speeds in excess of 50 miles per hour. The restaurant is already non-conforming in an R-40 residential zone. Allowing any _ expansion, especially for a bar, presents several quality of life concerns for the:residents of this street. We want our six grandchildren(ages 2 months to 12 years) to enjoy the same safe summers that their parents did in growing up on this street. Sincerely, Stanley dshan SW:jf '( „ OFFICE OF ZONING BOARD OF APPEALS 53095 Main Road Southold, NY 11971 Email: Linda.KowalskikTown.Southold.ny.us or Paula.Quintieri(a,Town.Southold.nv.us http://southoldtown.northfork.net (631) 765-1809 fax(631) 765-9064 FAX TRANSMISSION FAX# -') 16--357— ,333--s ATTN: DATE: n2/ d7/2002 REF: MESSAGE: Please feel free to call if you did not receive all sheets. Town Hall hours are between 8 and 4. Thank you. Pages to follow. �. ter` 6JRANSMISSION VERIFICATION REP 00 TIME 02/27/2662 16:26 DATE DIME 02/27 16:22 FAX NO./NAME 15163573333 DURATION 00:03: 39 PAGE(S) 08 RESULT OK MODE STANDARD ECM _ `V✓V''+_`�. _ r, art � f' ���� -�' 'r - ^�J' '•�', _ ,',t•L"!'� �t-I 'F('�� {�1•� a";�1• �•f 7 ,� —�r �r,.y' f. ` ,a+ � _ ,r' �� - -- - - - - - - `.I rl� f �-.�-_•L'�'�.y�i',G��.1�Sf}, `•`-•-7 9� '�;.. _teatv74 282,North Sea 's, 'f _ '4,t• _ �'�,' �' 't ',b y'11 r.� r �`' _°'..,. - -a: `-7•..:.'O, `- :l,-a _ ' - _ f,Z 7/•A - - _ -'-'_ti r _ i.� f; ,4 .- •.4 yt ;7"`";L.4,}:'.�:,<..�.t,,;� M�. �'l :Southold.NY '1-'1971' �• ,<^=� =--��: ., �,`L' .'t,`_ ,v ru, 'N._- ,`" - t. s` ''wry - ' �• , 'Februa :2 5,20.0,2 f,Gerard`P 'Goelirmger;;Chairman So"uthold".Tow BoaI of A' -eaTo ts: ,Y",h,Hall - s',, y�e ,tl,,,,,'(.i�`.^,• y`J 1' •`), i I♦ .1_lr,,.• - -_ - �r _ X53095 Main Road T,1971"' 0959 _ . -_ _- ��• - •��+�'r, `';� ,� tui :R-•o� �. - .1 5.r - 4~s` ':Applicatidn Wo.-505J-,`,CLIFFAND-PHIL'S LOBSTER:HOUSE RESTAURANT ) Thew-East -t`t+ ,,- .,L ��'� -- •-�. ,�- �Dear_Chairman Goehrin� er,and Mem,,bers='of,the 4Board:_ `r _eJust purchase' our-hon a in southoldlone year'ago'- tNe'knew''the Fro,'me was_ =y _ ?.-near:a-restaurant:but>checked.w ith,thenbuildin `'de''artmen't: ns ;ector,`Ed Forrester 'lr - - , f 9,, ,P p,. w= :who'•assar`e'd'us'that the''business,could not;be:altei'edan any`way',due,%to,its. = i ' -r;}non_ conforming'nature.°'So we,went'ahead and.`bouglit,the house.,°"l Hope we:won4 �, 7s '� .1- _ _, rr' _',%r _- ;r 1 'F':' 1" +'i .,•- 7.4` j',y -+, - - -` " resent-o_wners'of•the'restaurant`s`plied;for permits to ez arid, tlie: a' :t- b'usiness -t_o`enlarge the;waiting`area-�for restaurant.patron's.yln''fhe:'petition,':fhe owners-are•asking,for ar%-_b)ap sionfof'_app ;"waiting:area.'":'Th`e,:restaurant i -pre en ly'26`' q:,; "s, s t 50-s ft:;Hovirever';a=barterider,at:the,'; _ /. :restaurant stated'that"the ovine`rs`want to incr'ease:thel ar crowd and;need'the `,r(, ,•; room-f&:this. 'ur pose:.for'multi •le,zTV''s`P,amdS,,-'e tc.:aimilar,to•LE,GENDS-in Cutcho�ue,' it seems. !n addition,'the'preliminary plans indicaed:in'writing'_that';there:is,municip"al. parking,''hat•(canTbe used`to;make'•up, or'the,spaces ,that"would be?lost'due,to the'. expansi>on'and'also..to,accommodate;the;increase.in'clienfele: %Ttiisys a reference ao`; E -`4r v .,�� '...•..,- _ Ft,:i, ° ,;y the,;to wn'par,king lot-a t,KePney's.Bea chl; 'Invariibly,`tOge.-p rking' -,,:would Spill, ;on'to=' the_`s&6et as,'-well-as into this';towne lof r.(Whieh;Yby;th'e""way, was_restricted-,,, y:the'=: x;?: Y; a`}, t: : ✓:)DEC on'one,sid&this;pastseason due.yto`tte,.`nesting area of.tMe";threaten'ed'-piping , } ,s', lovers:]''IMho wil!enforce;the Peg7,` rmit /nJarkin . -„ ^'r ,{• _"� - _ - _-- - ." 1' y•^' � ,.fl• _ -.r.•'a.. :211" u(`I t," y,+`t,. ,,F,' ' �T. We"-Seesewa'[']e-erbeks.'_&& +uentl at-'`t'he-site: The former�owners., of'ouraio to'sue;the;'rest aurant-b_ ecause�it=w,as:containinating, wells neartiy with:ahe•t'_f-;',_i1'i u = restaurant_s irriproperly<►nstalled sewage system..,The.old, owner°of the restaurant _, . ' was:forced'•to,pay for-the,moving of the"homeowner,s,.,well: _The::HVAC-and s�, - :`,+� '.{ - - '' S..,'- - ,rJ' ''i.• 7' :lir -C' -- •,�' - '!]�,f `T•., .Ll •5� - Thr .r, - ,`t4 - �- ;'(, �!� - � .- , , __ , " " I 11.1,__�� , ,.�.T- ,","-"-", ,1,- -,�,- ", , ,-.- �,_,_, '01, " "',�1�,"_,t,--,, �,.- �:",�,� .. ,--,�,, I ,I I , , _, ,�, " � ," , ".:1,,'_�_ ,,I,- , ,. "11-,, .,I � , , ,,, -_. 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I - ,!�, � - 1,�, � : 1� ,""-,,-- ,,-" ,,�,,, , , � , "'. �, ,, ,v- �, , �', ,,"', � ,�"" .I�1,� '),� �_" f""'.,,- "-, ,,��j,,,"' , � ,",� , -,;.- � � "" ,�I " ,-"I T-," , - � ,,." 'I-), 11, l,'I - I I � ." - -,- ;� ,,,-, . ,I ,I Sf6,, ,;, �� . I il_1" - , ,--�,, -Ile,, - , `, "" :�,�, "�""" . t� - 1,;�,� 1-1- Ir,� �", ,�, ," 1, " � ,� , f . , I,� _" " ��', , �11 , ,,,,,,, -,`,-';��,,�, ,,�, _� I-- -e:t , , I. ,I :: , 4i�,2 _. � ,�", �,,� , , , - , - ,,,t� ,.I I'�l ,I"? _ - I I" , �,:I I ray FEB 2 2, )2 KENNEYS BEACH AREA RESIDENTS A Zoning Board of Appeals meeting is scheduled for Thursday,February 28, 2002 at 6:45 P.M. Re: Elbow East Restaurant expansion (on the agenda 97:45.) The restaurant,right now is in a R-40 residential zone where this business is ireadv non-conforming. Since this affects all residents, please make every effort to attend the meeting. There are many quality of life issues that will be at stake if expansion of bar area is allowed.They include, but are not limited to, real estate values, parking, traffic, noise, other environmental concerns, and so on. If it is impossible to attend the meeting, and you have not already done so, please mail or fax a SIGNED letter stating your opinion on this isssue to: ZONING BOARD OF APPEALS 53095 MAIN ROAD P.O. BOX 1179 SOUTHOLD, NY 11971-0059 or FAX 1-631-765-9064 Att: Linda Kowalski rr� � &a_ ,J cry � - CW February 19,2002 Dear Ms. Kowalski, We as resident-owners of our home on North Sea Drive and taxpayers to the Town of Southold for 41 plus years oppose Cliff's Elbow East Restaurant application for"sports bar status". As you know, over the years there have been many problems arising from the parking area of Kenney's and McCabe's beaches. A sports bar would greatly add to possible vandalism, excessive drinking(drugs?)and unsafe vehicle speeding on our roads. It also seems to us that most applications, such as this one, are considered when most summer residents are not living in Southold to possibly protest these applications or variances. Again, we strongly oppose this application. DO NOT APPROVE IT! A sports Bar would create a huge negative impact in our residential area. Thank you. Re ect off'u an Tie n astro 2025 North Sea Drive Southold,NY 11971 2-2Z-OZ: 1 '64 MCIR-C"Et :b i 6 34e 0007 # 1 - ' A� � l V Post-4t®Fax Not1 76171 Date Z ssio'� pagges®° �J. To LlaDA Kowr(aFrom TV7 ReTc_,r_A I ca.�DePt. co, PO Box 1825 �.Tj A Se, rMoO O (2325 North Sea Drive) Phone# Phone# 4 54x) 3 S ka4- Southold,New York 11971 Fax# (A 31 Z(.5 Ot0U4 Fax" 5 22 February,2001 Mr. Gerard P. Goehringer, Chairman Southold Town Board of Appeals FEB 2 2 Town Hall 53095 Main Road Southold,New York 11971 Re: 1) Elbow East Restaurant Sports Bar Application; Zoning Board of Appeals Meeting: 28 February, 2001 Dear Mr. Goehringer and Members of the Board: Here we g® again! a In May 2000, it was necessary for me to attend three hearings regarding a variance request for a non-compliant structure at 2225 North Sea Drive (Application No. 4780). That application was subsequently approved with various covenants regarding structure placement and shrubbery plantings. It is now February 2001 and those covenants/stipulations of approval have not been complied with. Therefore, I can only infer that once a variance is granted, there is little/no follow-up by Southold Town to insure compliance with the requirements of variance. This brings me to Elbow East Restaurant's application/request for expanding its function to a "Sports Bar." It is my belief that the Board's function/responsibility is to address present Town Code. Pre- existing, pre-present code structures should not be granted additional relief/variance. The Board's decision should not be influenced either by a previous Board's allowances or older Town Code in considering additional variances to what appears to be a non-compliant structure to present Code. Any change that I may want to make to my property must comply with present Town Code and that should also be true for Elbow East - or is it that there can be alternate interpretations of Code for a commercial vs. a residential owner. As I am sure you have seen before, a petitioner many times hide their final intended purpose in a veil of overly exaggerated requests with the expectation that a Board will compromise and approve some of the requests. In this case, there should be no ap-proval/compromise whatsoever. The building, business and lot are non-conforming and any approval will only lead to additional issues—now and'in the future. 1 22-02,�11 :54AM;E2C Eng Mgt ;516 346 0007 # 2i 2 o The request references utilizing "municipal parking" (at Kenny's Beach). This is laughable. Southold residents must obtain permits to park at the beach and the restaurant intends to utilize this facility as their own. Other than the fact that I am paying to maintain this facility through my tax structure, how could it be patrolled (if the request were granted) to insure that those parking there were for the restaurant and not utilizing the Beach? Maybe Elbow East intends to issue their own beach permits? The parking lots at both Kenny and McCabe's Beach also have a history of late night problems and many times it has been necessary for Southold Police to station a presence in the lot to minimize unwanted and illegal activity. Police Logs can be retrieved to document this. It is also a simple and logical assumption that if this petition is granted, additional unwanted activity at these beach parking lots can be expected. This request for a "Sports Bar" apparently has to be driven by expected increased profit; therefore, it is appropriate to understand where a profit would be generated. As it is a "Bar" request, it is obviously not by food consumption—which leads to the conclusion of the increased probability of unwanted activity caused by alcohol consumption. Will the Kenny Beach parking lot become the center of this unwanted activity or will it simply become a public restroom for people leaving the Bar? And, if loiterers are chased from Kenny's Beach, we can expect that they will simply move to McCabe's Beach parking lot to continue, as both areas cannot be patrolled at the same time. My concern is simply maintaining property value. Considered solutions should not affect my equity. I feel I have an obligation to conform to the various Town Laws and Building Codes - which were a significant influence in my purchase in Southold Town, and which are in place to maintain my property value. The Board has a responsibility to insure that any action considered is not detrimental to affected parties. Residential property owners on North Sea, Leeton Drive and Kenney's Road have the potential to lose much more than a restaurant, which could be sold once to a third party once a variance is approved—leaving the area residents with the problems. And,I have to expect, based upon present experiences as I noted in my first paragraph,that if any approval/relief is given, that there will be no follow-up inspections and periodic review to insure compliance. A Sports Bar on North Sea Drive, to utilize Boards terminology: would not "preserve and protect the character of the neighborhood, and the health, safety, [and] welfare of the community. " There appears to be is absolutely no benefit whatsoever to granting this petition other than increased unwanted activity. The petition must be disapproved in its entirety! r;`� I� Respectfully submitted;lfil)�r ' L t° ��''/`' �- 2 2 John R B 2 r TRANSMITTAL Yr �-' TO: ZBA Chairman and Members FROM: ZBA Office Staff DATE: -:;�2.G,Z S,-1-00 2, SUBJECT: File Update — U, With reference to the above application, please find attached the following new information added to the official ZBA office file: _. r ------------------------------------------- ---------- Comments: --------------------------------7------------------------------ - -----------------=---------------------------------------------------------- Number of Pages Attached: ___________________ TrMemo.doc Page 1 of 1 Kowalski, Linda From: Alena66@aol.com Sent: Saturday, February 23, 2002 7:10 PM To: linda.Kowalsky@town.southold.ny.us Subject: Cliffs Elbow East Reataurant application Email message sent to ZBA Office 2/25/02 We strongly oppose Cliffs Elbow East Restaurant application for sports bar status. As you know, over the years there have been many problems arising from the parking area of Kenney's & McCabe's beaches. A sports bar would greatly add to possible vandalism, excessive drinking (drugs?) and unsafe vehicle speeding on our roads. Please, DO NOT APPROVE IT! Thank you. Lou & Helen Mastro, 2025 North Sea Dr., Southold. 2/25/02 f "- L6okl CL ,r�HS� p1ESTAt�2R�T, �u�o T X �"tA 19ppLtcAT'1oN &P, `SPokTs 6n P, ST/+ Tu S 6� r' f FEB 2 2 )2 1 February 11 , 2002 I . Dear Ms. Kowalski, My wife and I have lived and enjoyed Southold for over 20 years, are-active in the community and are members of the Board of the Kenny's Beach Association. We reside at 1110 Leeton Drive and find the area beautiful and peaceful. Unfortunately over the years we have had problems with the parking area for Kenny's Beach, when young people gathered after hours to drink and party. The end result was a lot of noise, dangerous conditions from drunken drivers speeding along Leeton Drive, as well as the surrounding areas, and vandalism. We had to call the police on a number of instances, on one occasion at two o'clock in the morning, when a group of young persons stopped their car, took a piece of our split rail fence and hurled it at our driveway light. All very unpleasant experiences, which negatively impact the beauty of our area and Southold in general. Fortunately, most of these unpleasant activities have been corrected. However, as a member of the Kenny's Beach Association it has come to our attention that Cliff's Elbow East Restaurant has submitted an application to expand its function to a `sports bar.' This is both surprising and extremely upsetting. Surprising, since its status as a restaurant seems questionable, given that this is a residential area with no other commercial establishment. Therefore, we question the legality of its present existence. Its application as a `sports bar' compounds this situation dramatically, given that as a `sports bar' Cliff's Elbow East would serve as a magnet to attract young people whose primary purpose will be to party and have a good time. The inevitable result will be drinking, dangerous activities including speeding and other traffic violations, and most important, a major negative impact on the safety, tranquility and beauty of our area. ' t 0 As taxpayers, long time residents of Southhold, and members of the Kenny's Beach Board we strongly oppose Cliff's Elbow East Restaurant application for `sports bar status.' We further question, its right to exist in our area. This is a residential area, there are many young families with children, and the real estate values (and accompanying taxes) have risen significantly. Cliff's Elbow East Restaurant represents an ever present danger to the area's quality of life. We strongly oppose its application as a `sports bar' and question the legality of its present status as a restaurant in a totally residential area. We plan to take whatever action is necessary to stop this preposterous application. Resp ectfulLy�ours, Priscilla and Sergio Sedita 1110 Leeton Drive Southold, NY 11971 d? e.� ""0 0 ru, TOWNMEMO/TRANSMITI AL TO: ZBA Chairman and Members FROM: ZBA Office DATE: February 20, 2002 SUBJ: Cliff and Phil's Lobsterhouse Restaurant ZBA Appl. #5051 (for Feb. 28, 2002 Public Hearing) Please find attached copies of the following which were added to the above ZBA file: In opposition: Letter from R. and S. Schur Letter from V. Vilar E-mail message sent by regular mail from P. and S. Sedita. P.S. Other letters were distributed and copied separately (please see official file for reference dates if needed). r 17 y� it rid-a/ii J R® A&Shemi, Phone: (631) 765-3287 8310 Sound®iew Avenue, email bobraymond@onceipwn S�hc Southold,NY 11971 A1une.com Sunday, December 16, 2001 L9 CC; zQming Board Of Appeals - 53095 Main Rd. P.O. Box 1179 DE 1;�0 SOD) Southold, NY 11971 Dear Sir/Madame; As 20+years full-time residents in the immediate vicinity of The Elbow East Restaurant,we have serious concerns regarding their application for expansion. In it's current state,the restaurant is a pleasant part of the locale. We occasionally dine there, finding the food and service quite satisfactory. We have iso gripe with the establishment or its owners and staff. r' However,it is in an otherwise completely residential,non-commercial area. Currently unobtrusive, an expansion can only lead to greatly increased traffic and the other annoyances that especially accompany public dining establishments with larger alcohol-serving bars. We respectfully request that The Elbow East Restaurant's variance application be denied. Sincerely, Robert&Shelia Schur - f+ DEC 72001 Or ►s r-� y� `jz l�` CIL ` - ! f,, e=mai Juno t for KERichter 'uno.com printed on Wednesday, F bruary 13, 2002, 8:47 AN From: Silver217 -)aol.com tJ �( To: Linda.KowalskiftTownofSouthold.n .us Cc: kerichter�a juno.com y {J' II Y Date: Mon 11 Feb 2002 08:17:52 EST FEB , Subject: Cliffs Elbow East ApOi cation for'Sports Bar License' M- - _ , - - - - - - - - - - - - - - - - - - sZ February 11, 2002 Dear Ms. Kowalski My wife and I have lived and enjoyed Southold for over 20 years, are active in the community and are members of the Board of the Kenny's Beach Association. We reside at 1110 Leeton Drive and find the area beautiful and peaceful. Unfortunately over the years we have had problems with the parking area for Kenny's Beach, when young people gathered after hours to drink and party. The end result was a lot of noise, dangerous conditions from drunken drivers speeding along Leeton Drive, as well as the surrounding areas, and vandalism. We had to call the police on a number of instances, on one occasion at two o'clock in the morning, when a group of young persons stopped their car, took a piece of our split rail fence and hurled it at our driveway light. All very unpleasant experiences, which negatively impact the beauty of our area and Southold in general. Fortunately, most of these unpleasant activities have been corrected. However, as a member of the Kenny's Beach Association it has come to our attention that Cliff s Elbow East Restaurant has submitted an application to expand its function to a 'sports bar.' This is both surprising and extremely upsetting. Surprising, since its status as a restaurant seems questionable, given that this is a residential area with no other commercial establishment. Therefore, we question the legality of its present existence. Its application as a'sports bar' compounds this situation dramatically, given that as a 'sports bar' Cliff s Elbow East would serve as a magnet to attract young people whose primary purpose will be to party and have a good time. The inevitable result will be drinking, dangerous activities including speeding and other traffic violations, and most important, a major negative impact on the safety, tranquility and beauty of our area. As taxpayers, long time residents of Southhold, and members of the Kenny's Beach Board we strongly oppose Cliffs Elbow East Restaurant application for 'sports bar status.' We further question, its right to exist in our area. This is a residential area, there are many young families with children, and 1 OIL Juno a-man for KERichter uno.com printed on Wednesday, February 13, 2002, 8:47 AN the real estate values (and accompanying taxes) have risen significantly. Cliff s Elbow East Restaurant represents an ever present danger to the area's quality of life. We strongly oppose its application as a'sports bar' and question the legality of its present status as a restaurant in a totally residential area. We plan to take whatever action is necessary to stop this preposterous application. Respectfully yours, Priscilla and Sergio Sedita 1110 Leeton Drive Southold, NY 11971 LOIG SENT SY: MOORE; 631 765 4643; FES-5-02 16:10; PAGE 1 /1 N PATRICIA C'W�VOORE Attorney at'T:aw 51 Ot'C1 MainY Rudcl SOLlthcfld,Neve York 11971 Tel: (631) 765-4330 Fitx: (631):765-46:07----Ft�-(- j� r=3 r F] 1)E Margaret Rutkowski Secretaries FEB Southold Town Zoning Board of Appeals Gei:ard P. Goehringer, Chairman Southold Town ball 53095 Main road Southold, NY 11971 BY FAX Re: Elbow East Restaurant Dear Chairman and Board members : I have been retained by the following- homeowners with regard to the above referenced application: UWNER: SOUTHOLD PROPERTY: Paul & Mary Stetz 270 North Sea Drive Christopher & Patricia Poppe 282 North Sea Drive Aileen Paskoff North Sea Drive Alan Litner North Sea Drive Monroe Sonnenborn 305 North Sea Drive Stanley Waldshan North Sea Drive Mr. dlid Mrs . 1?osicki 395 North Sea Drive Please forward a copy of the notice of hearing when this matter is placed on the calender. Thank you for your anticipated cooperaUion. very truly yours, �_ .P,qtricia C. Moore CC : p KENNITS BEACN CIVIC A CIATION / „¢[ P O.BOX 881 _ SOiJT�iOLD,NY 11971 l r= 1j} GL JAN 1 7 2002 ;I,'6 January 15,2002 Zoning Board of Appeals Town of Southold ---- -1 53095 Main Road P.O.Box 1179 Southold,NY 11971 Re:Elbow East Restaurant 50 North Sea Drive Southold,NY 11971 Application dated:November 6,2001 Map 1000-Section 54-Block 5 -Lot 22 Dear Members of the Zoning Board of Appeals, On behalf of the members of the Kenney's Beach Civic Association,I am writing to oppose the application of Cliff s Elbow East Restaurant extention/additions/alterations to the existing restaurant. Mr. Tike Rutkowski, owner of said restaurant,had applied to the Zoning Board on November 6,2001, and was denied with Notice of Disapproval on November 13,2001, ammended November 14,2001. The Executive Board and the Board of Directors of the Kenney's Beach Civic Association strongly urge you to deny this appeal. This non-conforming building with non-conforming use is in a residential R40 district and not permitted. (pursuant to Article NMV, Section 100-243). "A nonconforming building containing a nonconforming use shall not be enlarged or reconstructed or structurally altered". We feel that this illegal alteration will drastically interfere with the quality of life of our residents and destroy the character of our community. Thank you for your consideration. Very truly yours, �� line Richter, resident cc: Ms. Valerie Scorpaz,Town Planner Mr.Howard Meinike,NFEC Ms.Patricia Moore Mr.Ray Huntington, Council of Southold Property&Civic Associations V°� /UyE L)}I � ,r-� ,37 .oil - II - f z� 101 Ile 2-el 61) I , 1,41 1 2001 ��,� ��4�a-��- � � y�� Vie— � /.o e•o r i I iRbBER'I'J.GAMEY SUFFOLK COUNTY EXECUTIVE THOMAS ISLES,AICP DEPARTMENT OF PLANNING DIRE=R OF PLANNING i June 16, 2003 Town of Southold Toning Hoard of Appeals Pursuant to the,requirements of Sections A 14-14 to 23 of the Suffolk County Administrative Code, the following application(s)submitted to the Suffolk County PIanning Commission is/are considered to be a matter for local determination as there appears to be no significant county-wide or inter-community impact(s). A dec}cion of local determination should not be construed as either an approval or a disapproval, jjg {�gl Munigingl File Num rlsl I Cliff&Phil's Lobsterhouse* 5051 t *Alternative relief appears warranted consistent with developmental restrictions,particularly as set forth by the Zoning Board of Appeals. I Very truly yours, Thomas Isles Director of Planning S/s Gerald Q.Newman Chief Planner 1310,Mcc O;ICCNpRNY1ZQNINC9t�ONINb4WORKINna LD200sV�Nt949031.JUN I y 14AJUNG ADDRESS LO'GA710H � � t B l 61 853-5 100 H. LEE DENNISON BLDG.•4TH nQOR ■ P O. BOX$100 ■ I Oo VETERANS MF-3"1ORIAL HIGHWAY HAIJPPAUGt.NY I 1 768.0099 1>LECOPIER(5 1®)853-4444 r 1 't tqr • NOTE FOR THE FILE: Re: PB Status Inquiry: Site Plan Elbow East(Cliff&Phil's Restaurant) Date: August 26, 200 PB Staff confirmed today that they will be bringing the new site plan application of Cliff& Phil's Lobster House before the PB Members tonight at,a work session. They have not had a chance to review it since it was only received, they said, in the last two weeks. They agreed to send a letter to the ZBA regarding their requirement for parking and buffer site plan elements. ZBA Off ce Update , zav ZDf�e ' i5 #ONiNG BOARD OFAPP f 1s Town Hall Office �� 53095 Main Road P.O. Box 1179 ./ Southold, NY 11971-0959 Email: Linda.KowalskigTown.Southold.ny.us or Paula.Ouintierina,Town.Southold.nv.us http://southoldtown.northfork.net (631) 765-1809 fax (631) 765-1823 (alt. 9064) TRANSMITTAL To: Jerry, Lydia, George, Ruth, and Vincent DATE: / /2002 REF: Hearing Date: APQ-- Appl. of �1.P �ro� r CSS At e-.,,nJ© . ( x ) Info attached for your information and review. �lL z 40 ZAq Thank you. Pages attached: r PLANNING BOARD MEMBERS P.O.Box 1179 BENNETT ORLOWSKI,JR. Chairman ® Town Hall, 53095 State Route 25 y Southold, New York 11971-0959 RICHARD CAGGIANO Telephone (631) 765-1938 WILLIAM J.CREMERS ®� ® Fax(631) 765-3136 KENNETH L.EDWARDS MARTIN SIDOR PLANNING BOARD OFFICE TOWN OF SOUTHOLD ' i lr SEP 6 MEMORANDUM T: Gerard P. Goehringer, Chairman, Zoning Board of Appeals F: Scott Hughes, Senior Environmental Planner R: Elbow East Restaurant Application # 5051 SCTM #1000-54-5-22 D: 6 September 2002 The Planning Board wo4ld like to provide commentary on the above-mentioned project. However, we are currently awaiting advice from the Town Engineer regarding the proposed parking layout. After he has responded, we will submit our comments before your next meeting on October 17tH I thank you. 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IgI101111 • rr m —70677 �r Er Postage $ {4,� �Q Certified Fee ! ,PrBs FQ'� Return Receipt Fee �D '#ere tR O (Endorsement Required) , 0 Restricted Delivery Fee M (Endorsement Required) tl In O Total-Postage&Fees hl Name(Please Print Clearly)(to be completed by mailer) Debra B:Acguay_iva--------------------- Street,Apt No,or PC B-N76 Juniper Street O-" -----------T 1 �-7�7 -r 1 ry i � Crty,State,ZIP+4 1Sllp, 1V i - 1-1-/5-1------------------------------- b. ---------------------------- . trix IBM=- - W r Ln o- - tt C�- rr- Postage $ / STA 7- ru r / Certified Fee M; V \[ A ! ( ostma Return Receipt Fee '�1�,v Herg (Endorsement Required) j M p E:3 Restricted Delivery Fee /) C3 (Endorsement Required) M TotaHpostage&Fees M M Name(Pleas � L rr oa cOjrd[Sb , a�ano M O— Street.Apt-- deS-D@S P li}�------------------------------------ 113- ,?,OmahaStreet-__-- I� City Siaie, +4 Dumont,NJ 07628 ' � Id G • Article Sent To.. 6 Postage $ STA 7-/ ru Certified Fee r'v/� Lost ca Return Receipt Fee � � j� Here C7 (Endorsement Required) C3 Restricted Delivery Fee C7 (Endorsement Required) [7 Total Postage&Fees M Name(Please Print Clearly (p o)Vple aS91�MU 1S rr ----------------------- o ---------Garden-City,IN----1-153-Q---------------- � City,State,ZIP+4 Form :ir .rx I�M Iffi-Ifix.0*01M2 ra 171-- Er CO NLr) ���ostage $ T,,j /0rtified FeeIC7 -> tnlaZ r-q Return Receipt Fee Here"< C3 (Endorsement Required) C3 Restricted Delivery Fee M (Endorsement Required) S SCS C3 Total Postage&Fees $ LIP V" Sent To C3 Mr. &Mrs. Elliot Paskoff ............................. 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Orestes Varvitsiotes --------------------------------------------------------------------------------------------- p Street,A251f/ f -place ary sret$gC�E7Y{l)/Il, NY--11'23-0 4i2@c2 15: 58 63176590 ZONINGAPPEAL PAGE ZONING BOARD OF APPEALS TOWN OF SOUTHOLD NEW YORK ---------------------------- -------------------x In the Matter of the Application of AFFIDAVIT OF (Name of Applicants) MAILINGS CTM Parcel #1000- ----------- COUNTY 1000--------------COUNTY OF SUFFOLK) STATE OF NEW YORK) residing at I, Goof �- ISu9i s 2 ��'�4'�h� ���J New York, being duly sworn, depose and say that: On the 1q114 day of f*V , 2001% 1 personally mailed at the United States Post Office in V140)ht_ , New York, by CERTIFIED MAIL, RETURN RECEIPT REQUESTED, a true copy of the attached Legal Notice in prepaid envelopes addressed to current owners shown on the current assessment roll verified from the official records on file with the i4 Assessors, or ( ) County Real Property Office 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. (Signature) Sworn to befo a me this day of , 200�- C� CNFdS11NE A.corms Public,State of New yo* mal ed In Queens°county (Notary Public) � ComtNeeion EVIres February 1,20 �1 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. 1 FEB 14 2D02 15:20 6317659064 PAGE.04 LEGAL NOTICE NOTICE OF"PUBLIC HEARING SOUTHOLD TOWN BOARD OF STATE OF NEW YORK) i APPEALS )SS: THURSDAY,FEBRUARY 28, 2002 COUNTY OFSUFFOL'ig _ Law suant to Section 267 of the Town Law NOTICE IS HEREBY GIVEN, � � ® , l lgs yAl c Qg;e_ Of Mattituck, in say •- and Chapter 100 (Zoning), Code of county, being duly swom, says that he/she is PrinclpC the Town of Southold,-the following - -- clerk of THE SUFFOLK TIMES,a weekly newspaper,pub-\ application will be heard at a public _ hearing by the SOUTHOLD TOWN lished at Mattituck, in the Town of SouLheek of BOARD OF APPEALS at the Town i Suffolk and State of New York,and that thich — Hall, 53095 Main Road, Southold, I New York 11971, on THURSDAY. the annexed is a printed copy, has beeub- FEBRUARY 28. 2002, at the time noted below(or as soon thereafter as lished in said Newspaper onceek possible): for f weeks successiveing 1 7:45 p.m. Appl. No. 5051—CLIFF AND" PHIL'S LOBSTER On ' / the day HOUSE/RESTAURANT.Based'on Of ����jt/��Y 20 �� the Building Department's Notice of Disapproval issued November 14, 2001, amended February 13, 2002, applicant is requesting: (a) an inter- pretation under Article XXIV, rincipal Clerk Section 100-243 to Reverse the Building Department's determina- tion which stated that the proposed SWom to before me this — addition/alteration to an existing r restaurant establishment is not a per- day of 200.1-- ; mitted use in the residential R40 District, or alternatively a Variance 6v�A'RCHUK under Section 100-243A authorizing 1 the proposed addition to the existing Notary Public, State of New York restaurant,a nonconforming use in a No 01 806067958 nonconforming building; and (b) a Qualified in Suffolk County ' Variance under Section 100-244B to My Commission Expires Dec.24,20.4 locate the proposed addition main- taining the same nonconforming set- - - - back at less than 35 feet from the front property line; and (b) a Variance under Section 100-244B for a total lot coverage in excess of the code limitation of-twenty (20) per- cent of the-'total lot area. Zone District: R4&Residential. Location ;hof-Property:Cornerof the-east-side of Kenney's Road and the south side of North Sea Drive, Southold; County Tax Map Parcel 1000-54-5- 22. The Board of Appeals will hear all persons, or their representative, desiring to be heard at the hearing,or desiring to submit written statements before the conclusion of this hearing. This 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(631)765-1809. - Dated:February 14,2002. GERARD E GOEHRINGER, CHAIRMAN SOUTHOLD TOWN BOARD OF APPEALS Town Hall 53095 Main Road P.O.Box 1179 Southold,NY 11971-0959 2211-1TF21 SENDER:- -0 ■Complete itegis•1-and/or2 for additional services. I also wish to receive the 'r4 - ■Complete items 3.4a,and 4b. following services(for an 4) ■Print your name and address on the reverse of this form so that we can return this extra fee)' card to you. ai ■Attracc i this forth to the front of the mailpiece,or on the back if space does not 1. ❑ Addressee's Address Z ■ permit. Receipt Re nested'on the mad iece below the article number. d P 4 p 2. ❑ Restricted Delivery t ■TtieN ,Return Receipt will show to whom the article was delivered and the date W c delivered. _ Consult postmaster for fee. d 3.Article Addressed to: 4a.Article Number o° E Debra B. Acquaviva 4b.Service Type N76 Juniper Street ❑ Registered '\E Certified CD ❑ Express Mail ❑ Insured . LU Islip NY 11751 M o Return Receipt for Merchandise ❑ COD c 7.Date of Delivery w° a o z 5.Received By Print Name) S.Addressee's Address(Only if requested W and fee is paid) r g 6.Signature• d fessige or Agent) ~ !>. X, N PS Form 3811, ecember 1994 102595-97-B-0179 Domestic Return Receipt UNITED STATES POSTAL SERVICE First-Class Mail Postage&Fees Paid USPS Permit No.G-10 • Print your name,address, and ZIP Code in this box• RIVM RADLER LLP EAB PLAZA U=N ,E, SENDER: o ■Complete items 1 and/or 2 for additional services. I also wish to receive the H ■Complete'items 3,4a,and 4b. following services(for an ■Print your name and address on the reverse of this form so that we can return this extra fee): card to you.ID ai ■ this form to the front of the mailpiece,or on the back if space does not 1. ❑ Addressee's Address permit. ■dWnte'Retum Receipt Re uested'on the mailpiece below the article number. 2. Restricted Delivery N ■The Return Receipt will show to whom the article was delivered and the date c delivered—�__ Consult postmaster for fee. 3.Article Addressed to: 4a.Article N9mt;er _ -70 4CL E Paul&Mary Stetz 4b.Se nlie87y p 21 Magnolia Avenue ❑ Regitsterg�dti c� 1 Certified W Larchmont,NY 10538 ❑ Express Mail 0�� -7 ❑ Insured -.S o 0,Retum Receipt-for.Merchalidise ❑ COD 0 7.Date of Delivery ��" w a __ o --- -- ----- — -- A M Telved (Print N e 8.Addressee's Address(Only if requested u~i . and fee is paid) g 6.Signature:(Ad ressee or Agent) PS Form 3811, December 1994 102595-97-13-0179 Domestic Return Receipt UNITED STATES POSTAL SERVICE First-Class Mail Postage&Fees Paid USPS Permit No.G-10 • Print your name, address, and ZIP Code in this box• RP" RADLER LLP- EAB PLAZA UNTONDAI F NY a 556-0111 _ COMPLETE THIS SECTION ON DELIVERY LGENDER: COMPLETE THIS SECTION ■ Complete items 1,2,and 3.Also complete A�eceived by(Pleas Print Clearly) B. Date of Delivery item 4 if Restricted Delivery is desired. ■ Print your name and address on the reverse so that we can return the card to you. C. S' ature ■ Attach this card to the back of the mailpiece, X Agent or on the front if space permits. ❑Addressee D. Is delivery address d event from ite ? ❑Yes 1. Article Addressed to: If YES,enter delivery address below: ❑ No Christopher Poppe 3. service Type 36 Fenimore Street l�.certified Mad Express Mail �j Registered 1'Return Receipt for Merchandise Lynbrook,NY 11563 ❑Insured Mad ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes -- ——-- 2 Article Number(Copy from service label) TM `3YDO �_ hI �I�L�� 00Z-1 . tic Retur!nReceipt iIs if I 102595.00-M-095PS Form381l'yi1i{sss`1 Domes _ UNITED STATES POSTAL SERVICE First-Class Mad Postage&Fees Paid USPS Permit No.G-10 • Sender: Please print your name, address, and ZIP+4 in this box • ARUN LER LLP BAD AZA UNIONDALE011IY 1�556,p111 {� S /►�iS I �r3 '° F!' -fif� ' fi � �# •!i ii ��i ](qtii (!{f ti:�,ii ff+` f.if :i: ilf f ii li: if fi iiit f ¢ ! •I ! Ifff:6i SENDER: I also wish to receive the o ■Complete items 1 and/or 2 for additional services. in ■Complete items 3,4a,and 4b. following services(for an d ■Print your name and address on the reverse of this form so that we can return this extra fee)' card to you. v ■Attach this form to the front of the mailpiece,or on the back if space does not 1. ❑ Addressee's Address permit. 0 ■Wnte'Retum Receipt Re uested'on the mallpiece below the article number. 0 a► P . 4 P' 2. ❑ Restricted Delivery � ■The Return Receipt will show to whom the article was delivered and the date C C delivered. _ Consult postmaster for fee. d C - 3.Article Addressed to: 4a.Article Number d -dor q 3, DME PY21 -7195,E E Androula&Louis Stylianou& 4b.Service Type U) Athanasiades Despina ` ❑ Registered Certified o� to ` ❑ Express Mail ❑ Insured W 59 Omaha Street N cc Return Receipt for Merchandise ❑ COD Dumont,NJ 07628 G 0 B 7.,Date o Delivejy z = - - ---- --------- - C2z) M 5.Received B : ri t Name) 8.Addr s"ee' Address(Only if requested LU and fee is paid) r F 6.S' nature:(iddressee,or Agent) PS Form 3811, December 1994 102595-97-B-0179 Domestic Return Receipt 4s L _ - =z First=Class.Mail : ._, UNITED STATES POSTAL SERVI p & ,Postage -FAes,4ald =USPS=_- 19 F E 3 �� - - >_.. _z =Permit No,-QIQ • Print you -t am ad"cress, and Zt3`Cotle in'this-bo 6-- RIVEN RADLER LLP EAB PLAZA LNIoNDALE,NY 11556-0111 m SENDER: I also wish to receive the p ■Completeite`ms i arid%i 2 for additional services. Z ■Complete items 3,4a,end 4b. following services(for an W- ■Pdnt•your name and address on the reverse of this form so that we can return this extra fee): card to you. 9 ■Attach this form to the front of the mailpiece;or on the back if space does not 1. ❑ Addressee's Address `t permit. N ■Wnte'Retum Receipt Requested'on the mailpiece below the article number. 2. ❑ Restricted Delivery to .5 ■The Return Receipt will show to whom the article was delivered and the date Q C delivered:-- Consult postmaster for fee. e 0 3.Article Addressed to: CD 4a.Article Number CL 4b.Service Typ 0 Mr. &Mrs. Orestes VarvltsloteS ❑ Registered c., ti Certified ¢ 25 Irvington Place ❑ Express M ib� Q3 -Insured LU Brooklyn,NY 11230 'Return Recel t fo a �cCID w Date of Deliv ���..�'�_'•` � z6 Z > 5.Received By:(Print Name) 8.Addressee's Address(Only if requested and fee is paid) _ ¢ t- g 6S,,ign tura:(Addressee or Agent) A plsfm orrri 3811, December 1994 102595-97-B-0179 Domestic Return Receipt UNITED STATES POSTAL SERVICE First-Class MailPostage&Fees Paid USPS Permit No.G-10 • Print your name, address, and ZIP Code in this box• RIVKIN RADLER LLP EAB PLAZA , UNIONDALE, NV 11556-0111 d SENDER: I also wish to receive the o ■Complete items 1 and/or 2 for additional services. m ■Complete items 3,4a,and 4b following services(for an d ■Print your name and address on the reverse of this form so that we can return this extra fee): card to you. 0 ■Attach this form to the front of the madpiece,or on the back if space does not 1. ❑ Addressee's Address I permit. m a) ■wnte'Retum Receipt Requested'on the mailpiece below the article number. 2. ❑ Restricted Delivery N ra ■The Return Receipt will show to whom the article was delivered and the date a c delivered. Consult postmaster for fee. ' Sa 3.Article Addressed to: 4a.Article Number d q W' Sonnenborn 4 .Service TypeEBeuery&_Monroe v th Street— 1 ❑ Registered �Certified rn 79 West 12 4F I New Yt�NY 10011 ❑ Express Mail ❑ Insured¢ Retum Receipt for Merchandise ❑ COD 1' 7.Date of Delivery 1,J0-5:-Received,By.—(Pfint Name)-- c== '8.Addressee's Address(Only if requested � --an fee isP_-aid) - -— — --- - _ N _ 1,� �. . ,� I '• lt PS Fi ecei_ P UNITED STATES POSTAL6E�'VICE: First Class Mail Fees Oaid Restdga&j P e rm it'k3._(Y_TO_:7 - Print your name,addrpssjand ZIP Codein.this b z c, RMN ROLER LLP % EAB PLAZA UNIONDALE,NY 11J556-01 11 III..fit 11,11111 lilt 111 11111.11111 ■ Complete items 1,2,and 3.Also complete A. Received by(Please Print Clearly) B. Date Pf De' ery item 4 if Restricted Delivery is desired. _�—a L� ■ Print your name and address on the reverse so that we can return the card to you. C. Signature ■ Attach this card to the back of the mailpiece, X ❑Agent or on the front if space permits. ❑Addressee D. Is delivery address I efferent from item 1? ❑Yes 1: Article Addressed to: - If YES,enter delivery address below: ❑No i � I Mr. &Mrs. Elliot Paskoff 3. Service Type 21 West Street—Apt. 15A j Certified Mad ❑ Express Mad Registered Return Receipt for Merchandise New_York,NY 10006 _ ❑ Insured Mad ❑C O.D. 4. Restncted Delivery?(Extra Fee) ❑Yes 2. Articlj i , PS'Forri - - ss-oo-M-oss2J� UNITED STATES POSTAL SERVICE First-Class Mail Postage&Fees Paid USPS Permit No G-10 • Sender: Please print your name, address, and ZIP+4 in this box • RIVKIN RADLER LLP EAB PLAZA UNIONDALE,NY 115%-0111 % SENDER: ti ■Complete items 1 and/or 2 for additional services. I also Wish to receive the ii ■Complete items 3,4a,and 4b. following services(for an d) ■Pnnt your name and address on the reverse of this form so that we can return this extra fee): card to you. y ■Attach this form to the front of the mailpiece,or on the back if space does not 1. ❑ Addressee's Address permit, d ■Wdte'Retum Receipt Requested'on the mailpiece below the article number. 2. ❑ Restricted Delivery N « ■The Return Receipt will show to whom the article was delivered and the date a delivered. Consult postmaster for fee. E 0 3.,4rticle Addressed to: --' 4a.Article Number Y39 IV 7 j 6/ E _ 4b.Service Type 0 ❑ Registered � Certified 2 0 &rol Spinelli m ❑ Express Mail ❑ Insured E LU 103 Parkway Drive Return Receipt for Merchandise ❑ COD 0 c Roslyn Heights,NY 11530 7.Date of Delivery w Z W 5.Received By:(Print Name) 8.Addressee's Address(Only if reqtjested W and fee is paid) r g 6.Signature: ddressee oVet :I. X / PS Form 3811, December 1904 102595-97-B-0179 Domestic Return Receipt UNITED STATES POSTAL SERVICE First-Class Mail U44 erm tPaid No.G-y 0 • Print your name, address, and % (kQ • m r RIVM RMLER LLP EAB PLAZA UNIONDAT F. NY 11556-0111 o- SENDER: I also wish to receive the "D ■Complete items 1 and/or 2 for additional services H ■Complete items 3,4a,and 4b. following services(for an a0 ■Print your name and address on the reverse of this form so that we can return this extra fee): card to you. ai ■Attach this form to the front of the mailpiece,or on the back if space does not •; j;'❑ Addressee's Address 2 permit. d ■Wnte'Retum Receipt Requested on the mailpieA below the article number.,.-' 2. ❑ Restricted Delivery N ■The Return Receipt will show to whom the article was delivered and the date_ n c delivered. a Consult star for fee. 0 v 3.Article Addressed to: 4a.Article Nu N " a E - 4b.Service Type ,r ° o John&Katherine Katram_-a OS '� y;�' ,certified 0 o _ _ ❑ Registered C ❑ ExpreaInsured c 46-34 Iris-Lane NcGreat Neck,NY 11020 eturn Receipt for Merchandise ❑ COD o 7.Date of Delivery z "_� ` 0, 5.Received By:(Print Name) ' Addressee's Address(Only if requested Wand fee is paid) t F g 6. ignature• (Addressee or Agent) T X tlf PS Form 3811, December 1994 102595-97-13-0179 Domestic Return Receipt cMwFirst-Class'Rlalt�, UNITED STATES POSTAL SERVICE �� J ,�•- n� <s. . Postager FeeV id a USPS n_ -Permit-NO.-G'-10-- Print ermit-No:G'-1D--Print your n and ZIP'eode`r Box-• RIVKIN RADLER LLP EAB PLAZA UNIONDALE,NY 1556-0111 -... .- ..r.. .. I!!!!�![��l+ItlE+111'+��ttillti[lII�S!!IIllStlltl!!►SISS1lSltl i (rwy.) 6-4 STING BOARD MEMBERS BENNETT ORLOWSKI,JR. �� �� P.O. Box 1179 Chairman ® Town Hall, 53095 State Route 25 WILLIAM J.CREMERS Southold, New York 11971-0959 KENNETH L.EDWARDS cove Telephone (631) 765-1938 GEORGE RITCHIEARD L O , ��®�x4� ®� Fax(631) 765-3136 PLANNING BOARD OFFICE TOWN OF SOUTHOLD / ,�Q,G• l D'Jv To: Jerry Goehringer, Chairman, Zoning Board of Appeals From: Bennet Orlowski Jr., Chairman, Planning Boaj - U Re: Cliffs Elbow East Appeal# 5051 SCTM: 1000-54-5-22 Date: February 14,2002 The Planning Board reviewed this matter at its Work Session on Feb. 11,2002, and offers the following comments: Various elements of the previously approved Site Plan dated March 21,1988 were never completed, or vary from the plan, particularly with regard to parking, buffering and landscaping. ' Existing landscaping does not adequately buffer the site, currently used as a resturant,and the current ZBA application does not address this problem. The proposed addition will exacerbate the parking on the site, which does not have clearly marked stalls or Handicap locations. Access from Kenny's-Road is- problematic, since it is unclear where the road ends and the parking lot begins . The Planning Board is concerned about these critical items, and requests that an amended Site Plan application be filed while the ZBA continues is deliberations. 1J OFFICE OF - - _- ZONING BOARD OF APPEAL 53095 Main Road Southold, NY 11971 Email: Linda Kowalski cr TownofSouthold.gy.us or Paula Quintieri(cr,TownofSouthold.ny.us http://southoldtown.northfork.net(631) 765-1809 fax (631) 765-9064 FAX TRANSMISSION FAX# ATTN: e- ASU/Ma- REF: 6u lM — DATE: 02 / �r /2002 REF: U MESSAGE: � - 16"1 lP� Pleas fel free to call if §6u did not receive all sheets. Town Hall hours are between 8 and 4. Thank you. Pages to follow: NSMISSION VERIFICATION REPORT ' TIME 02/1412002 17:00 DATE DIME 02114 16:59 FAX NO./NAME 15163573333 DURATION 00:00:51 PAGE(S) 02 RESULT OK MODE STANDARD ECM ZONING BOARD OF APPEALS TOWN OF SOUTHOLD:NEW YORK -----------—----—-------------------------------------x In the Matter of the Application of g r T AFFIDAVIT a� 4$- C., OF SIGN (Name of Applicant) POSTING Regarding Posting of Sign upon Applicant's Land Identified as 1000- ,;q - COUNTY OF SUFFOLK) STATE OF NEW YORK) I, �I,.kTHoN � �u�7�O (050"4 residing at (PIAS (RQco,v« bA�( Nva , New York, being duly sworn, depose and say that: On the 21 S` day of 17-el --y , 20021 personally placed the Town's official Poster, with the date of hearing and nature of my application noted thereon, securely upon my property, located ten (10)feet or closer from the street or right-of-way (driveway entrance) -facing the street or facing each street or right-of-way entrance;* and that I hereby confirm that the Poster has remained in lace for seven days prior to the date of the subject hearing dat which h "grin date was shown to be Mi nature) Sworn to befo a me this as day of4e", 200x. 1�Z (Notary Public) Notary SARAH s� �eofi ow Yo* No.0i KE60a'1287 Qualified in =..QTerm Expires June v ' *near the entrance or driveway entrance of my property, as the area most visible to passersby. Notice of Hearing A public hearing will be held by the Southold Town Appeals Board at Town Hall 53095 Main Road, Southold, concerning this property APPLICANT: CLIFF & PHILS LOBSTERHOUSE ZAX MAP #: 54-5-22 PROJECT: VARIANCES NONCONFORMING USE ALTERATION, ADDITION LOCATIONS DESCRIPTION: LOT COVERAGE + FRONT YDS. TIME & DATE: THURS. FEB. 28T" - 7:45 P. M . If you have an interest in this project, you are invited to view the Town file(s) which are foailable for inspection prior to the hearing during normal business days between the urs of 8 am and 3 pm. ZONING BOARD - TOWN OF SOUTHOLD - 631 -765-1809 NOTICE OF PUBLIC HEARING SOUTHOLD TOWN BOARD OF APPEALS THURSDAY, FEBRUARY 28, 2002 NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and Chapter 100 (Zoning), Code of the Town of Southold, the following application will be heard at a public hearing by the SOUTHOLD TOWN BOARD OF APPEALS at the Town Hall, 53095 Main Road, Southold, New York 11971, on THURSDAY, FEBRUARY 28, 2002, at the time noted below (or as soon thereafter as possible): 7:45 p.m. Appl. No. 5051 — CLIFF AND PHIL'S LOBSTER HOUSE/RESTAURANT. Based on the Building Department's Notice of Disapproval issued November 14, 2001, amended February 93, 2002, applicant is requesting: (a) an Interpretation under Article XXIV, Section 100-243 to Reverse the Building Department's determination which stated that the proposed addition/alteration to an existing restaurant establishment is not a permitted use in the residential R-40 District, or alternatively a Variance under Section 100-243A authorizing the proposed addition to the existing restaurant, a nonconforming use in a nonconforming building; and (b) a Variance under Section 100-244B to locate the proposed addition maintaining the same nonconforming setback at less than 35 feet from the front property line; and (b) a Variance under Section 100-244B for a total lot coverage in excess of the code limitation of twenty (20) percent of the total lot area. Zone District: R-40 Residential. Location of Property: Corner of the East Side of Kenney's Road and the south side of North Sea Drive, Southold; County Tax Map Parcel 1000-54-5-22. The Board of Appeals will hear all persons, or their representative, desiring to be heard at the hearing, or desiring to submit written statements before the conclusion of this hearing. This 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 (631) 765-1809. Dated: February 14, 2002. GERARD P. GOEHRINGER, CHAIRMAN SOUTHOLD TOWN BOARD OF APPEALS Town Hall 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 OFFICE OF ZONING BOARD OF APPEALSO 53095 Main Road Southold, NY 11971 Email: Linda Kowalski(a)TownofSouthold.ny.us or Paula Ouintieri(aDTownofSoutllold.ny.us http://southoldtown.northfork.net(631) 765-1809 fax (631) 765-9064 FAX TRANSMISSION FAX# 5il,-357- 3333 ATTN: P�YC� ��/1/5 DATE: l `f /2002 e pill REF: MESSAGE: II f you did not receive all shee s. Town Hall hours are between 8 and 4� Please feel free to ca y Thank you. Pages to follow: ■ RANSMISSION +VERIFICATION REPORT ' ~ TIME 02/14/2002 17:35 DATE DIME 02/14 17:33 FAX NO./NAME 15163573333 DURATION 00:00:59 PAGE(S) 02 RESULT OK MODE STANDARD ECM ` OFFICE OF ONING BOARD OF APPEALS 53095 Main Road Southold, NY 11971 Email: Linda.Kowalski(DTownofSouthold.ny.us or Paula.Ouintieri(a,TownofSouthold.ny.us (631) 765-1809 fax (631) 765-9064 February 14, 2002 Re: Chapter 58— Public Notice for Thursday, February 28, 2002 Hearing —Cliff& Phil's (Addition to Restaurant Building) DearQM7=- z�m: 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. Pursuant to Chapter 58 of the Southold Town Code (copy enclosed), formal notice of your application and hearing must be now mailed with a map or sketch showing the construction area or variance being considered. Send the enclosed Notice CERTIFIED MAIL, RETURN RECEIPT REQUESTED, with a copy of a map showing your project area, to all owners of land (vacant or improved) surrounding yours, including land across any street or right-of-way that borders your property, before Tuesday, February 19th. 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. When picking up the sign, a $15 check will be requested for each metal stand as a deposit. If you already have a sign and stand and only need the laminated printout for the face of the sign, an additional deposit is not necessary and we can mail or fax it to you. Please post the Town's official poster/sign no later than February 20th . Securely place the sign on your property facing the street, no more than 10 feet from the front property line bordering the street. (If you border more than one street or roadway, an extra sign is furnished for each front yard.) The sign(s) must remain in place for at least seven (7) days, and should remain posted through the day of the hearing. If you need a replacement sign, please contact us. By February 21st, please submit to our office your Affidavit of Mailing (copy enclosed) with parcel numbers noted for each, and return it with the white receipts postmarked by the Post Office. Later, when the green signature cards are returned to you by the Post Office, please mail or deliver them to us (but not later than the date of the hearing). If any signature card is not returned, please advise the Board at the hearing. On or about February 27th, and after the signs have been in place for seven (7) days, please submit your Affidavit of Posting to our office. These will be kept in the permanent record as proof of all Notices. (Please feel free to return the metal stands to our office for a return of your deposit.) If you do not meet the deadlines stated in this letter, please contact us promptly. Thank you for your cooperation. Very truly yours, Enclosures--6 ZBA Board Members and Staff P.S. Please arrange for someone to pickup the posting sign, for posting by February 20th. Thank you. 00 NOTICE OF PUBLIC HEARING SOUTHOLD TOWN BOARD OF APPEALS THURSDAY, FEBRUARY 28, 2002 NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and Chapter 100 (Zoning), Code of the Town of Southold, the following applicatio ill be heard at a public hearing by the SOUTHOLD TOWN BOARD OF APPEALS a Town Hall, 53095 Main Road, Southold, New York 11971, on THURSDAY FEBRUA 28 2002 at the time noted below (or as soon th reafter as possible): 7:45 p.m. Appl. No. 5051 — CLIFFxAND PHIL'S LOBSTER HOUSE/RESTAURANT. Based on the'\Building Department's otice of Disapproval issued November 13, 2001, amended November 14, 2001, appli nt is requesting: (a) an Interpretation under Article XXIV, Section 100\-,243-243 toR ,t rse the Building Department's determination which stated that the propose addi ' lteration to an existing restaurant establishment is not a permitted use hjXe residential R-40 District, or alternatively a Variance under Section 100-243A auth i ' g the proposed addition to the existing restaurant, a nonconforming use in a non nfor g building; and (b) a Variance under Section 100-2446 to locate the proposed ddition ma' taining the same nonconforming setback at less than 35 feet from t front property I e; and (b) a Variance under Section 100-244B for a total lot cov ge in excess of the ode limitation of twenty (20) percent of the total lot area. Zoe District: R-40 Residen ' I. Location of Property: Corner of the East Side of l�enney's Road and the south si of North Sea Drive, Southold; County Tax Map Parcel /1000-54-5-22. The Board of Appeals will hear all persons, or their representative, desiring to be heard at the hearing, or desiring to submit written statements before the conclusion of this hearing. This 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 (631) 765-1809. Dated: February 13, 2002. GERARD P. GOEHRINGER, CHAIRMAN SOUTHOLD TOWN BOARD OF APPEALS Town Hall 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 2ANSMISSION VERIFICATION REPORT TIME 02/14/2002 16:02 DATE,TIME 02/14 15:58 FAX NO. /NAME 15163573333 DURATION 00:03:05 PAGE(S) 06 RESULT OK MODE STANDARD ECM TOVVN MEMO To: ( Building Department, Attn: ( ) Planning Board ( )Other Town Department : From: Town ZBA Date: 2/x'/02 Re: Attached Notice of Disapproval dated IVOV./3 200/. un-j P&V-'4 Would you please furnish copies of the following information from your Town files regarding the proposed construction referred to the building permit application and referred to in the above Notice of Disapproval. This information is necessary to determine specific details in the area of relief that the applicant is being disapproved for. applying for at the next step of the building review process. ( ) Map showing proposed construction; Calculations showing basis of percentage referred to irkthe above Notice of Disapproval with respect to the applicant's existing and proposed building areas (excluding step areas under 30 sq. ft., grade level patio areas, and allowing other exemptions under the Zoning Code. ( ) Review determination by the Building Department with respect to the setback from the , and whether the zoning code provisions which may limit this new construction area is allowable under the zoning code. Thank you. The following space may be used for your reply, if convenient. REPLY MEMO: To: Town ZBA From: Building Department, by Date: / /2002 Comments: 1 Zoning Code: § 100-243. Nonconforming buildings with nonconforming uses. [Amended 10-19-1999 by L.L. No. 16-19991 A. A nonconforming building containing a nonconforming use shall not be enlarged, reconstructed or structurally altered or moved, except as set forth below, unless the use of such building is changed to a conforming use. (1) Nonresidential uses: (a) Nothing in this article shall be deemed to prevent the remodeling, reconstruction or enlargement of a nonconforming or conforming nonresidential building with a nonconforming nonresidential use or construction of an addition to existing buildings or additional building on the premises, so long as said increase in size of the buildings created by enlargement of the existing buildings or structures or by the construction of a new and separate building or structure does not result in an increase in the overall building footprint(s) of more than 15%, except that said increase shall not exceed the applicable maximum lot coverage. In addition, all other setback and area requirements shall apply. (b) Nothing in this article shall be deemed to prevent the remodeling, reconstruction or enlargement of a nonconforming or conforming nonresidential building with a nonconforming use or construction of an addition to existing building(s) or additional building on the premises, so long as said increase in size of the building(s) created by enlargement of the existing buildings or structures or by the construction of a new and separate building or structure does not result in an increase in the overall building footprint(s) of more than 30%, except that said increase shall not exceed the applicable maximum lot coverage, and all other setback and area requirements shall apply, provided that the following site remediation measures, in full or in part, as shall be determined by the Planning Board within its sole discretion, are included as an essential element of the aforesaid expansion: [1] Substantial enhancement of the overall site landscaping and/or natural vegetation. [2] Employment of best visual practices by upgrades to existing building facades and/or design of new buildings and/or the additions to existing buildings which accurately or more accurately depict the historic and/or existing rural character of the immediate and nearby neighborhood(s). B. A nonconforming building containing a nonconforming use which has been damaged by fire or other causes to the extent of more than 50% of its fair value shall not be repaired or rebuilt unless the use of such building is changed to a conforming use. Last printed 2/13/02 8 48 AM i FOR OFFICIAL USE ONLY CHECKLIST FOR NEW PROJECTS LABEL APPL.# 5(95-( ASSESSORS CARD (7 COPIES) NAME ' CTY. TAX MAP (7 COPIES + 1) CTM# -oZo2 INDEX CARD (ATTACH OLD) TOWN LIST ALPHA BOOK RESEARCH ALPHA COPY PRIORS SIX COPIES INSPECTION PACKETS COMPLETE UPDATED NEW INFORMATION so OFFICE OF db BOARD OF APPEA ��. 53095 Main Road Southold, NY 11971 Email: Linda.Kowalski cr TownofSouthold.ny.us or P aula.Ouintierin,TownofS outhold.ny.us http://southoldtown.northfork.net (631) 765-1809 fax (631) 765-9064 FAX TRANSMISSION FAX# X632 '3333 - ,--- ATTN: DATE: °�/ /--3 /2002 REF: UV / MESSAGE: ' Please fe I free to d1all if you dTd not receive all sheets. Town Hall hours are between 8 and 4. Thank you. Pages to follow: V t,-- EMISSION VERIFICATION REPORT TIME 0211312002 10:30 DATEJIME 02/13 10:27 FAX NO./NAME 15163573333 DURATION 00:02:28 PAGE(S) 04 RESULT OK MODE STANDARD ECM k I 06 FORM NO. 3 NOTICE OF DISAPPROVAL DATE: November 14, 2001 TO: Elbow East Amended: February 13,_2002 PO Box 985 , ) -- 7 Southold,NY 11971 ,�� FEB Please take notice that your application dated November 6, 2001 ' For permit to make additions/alterations to an existing restaurant at J Location of property 50 North Sea Drive, Southold, County Tax Map No. 1000 - Section 54 Block 5 Lot 22 Is returned herewith and disapproved on the following grounds: The proposed addition/alteration to a non-conforming building with non-conforming use, on a 21,932 square foot lot in the R-40 District, is not permitted pursuant to Article XXIV Section 100-243A.1, which states; "Nothing in this article shall be deemed to revent the remodeling,rec6nstructioor enlargement of a nonconforming or conforming nonresidential building with a nonconfo nonresidential use or construction of an addition to existing buildings or additional buil ''on the premises, so long as said increase in size of the buildings created by enlargemen of the existing buildings or structures or by the construction of a new and separate building or structure does not result in an increase in the overall building footprints) of more than 15%, except that said increase shall not exceed the applicable maximum lot coverage. In addition, all other setback and area requirements shall apply." The existing footprint of the existing building is+/-2,780 square feet and the proposed addition is noted as,being+/-1,311, an approximate increase of 48 percent. A restaurant is not a permitted use in the residential R-40 district pursuant to Article III, Section 100- 31A. In addition, the proposed addition to an existing non-conforming building notes a front yard setback of twenty-one (21) feet, maintaining the existing front yard setback, and a total lot coverage of 21.5 percent. Therefore, the proposed addition/alteration is not permitted pursuant to Article XXVI Section 100-244 which states that non-conforming lots less than 20,000 square feet in total size, require a front yard setback of thirty-five (35) feet and a total coverage of 20 percent. Authorized Signature CC: file, Z.B.A. • � rl� J J FORM NO. 3 NOTICE OF DISAPPROVAL DATE: November 14, 2001 TO: Elbow East Amended: Februamy 13, 2002 PO Box 985 Southold,NY 11971 FEB 3 Please take notice that your application dated November 6, 2001 For permit to make additions/alterations to an existing restaurant at Location of property 50 North Sea Drive, Southold, County Tax Map No. 1000 - Section 54 Block 5 Lot 22 Is returned herewith and disapproved on the following grounds: The proposed addition/alteration to a non-conforming building with non-conforming use, on a 21,932 square foot lot in the R-40 District, is not permitted pursuant to Article XXIV Section 100-243A.1, which states; "Nothing in this article shall be deemed to prevent the remodeling, reconstructio or enlargement of a nonconfon-ning or conforming nonresidential building with a nonconfo g nonresidential use or construction of an addition t&existing buildings or additional buil on the premises, so long as said increase in size of the buildings created by enlargemen of the existing buildings or structures or by the constriction of a new and separate building or structure does not result in an increase in the overall building footprint(s) of more than 15%, except that said increase shall not exceed the applicable maximum lot coverage. In addition, all-other_setback and area requirements shall apply." The existing footprint of the existing building is +/-2,780 square feet and the proposed addition is noted as being+/-1,311, an approximate increase of 48 percent. A restaurant is not a permitted use in the residential R-40 district pursuant to Article III, Section 100- 31A. In addition, the proposed addition to an existing non-conforming building notes a front yard setback o_f twenty-one (21) feet, maintaining the existing front yard setback, and a total lot coverage of 21.5 percent. Therefore, the proposed addition/alteration is not permitted pursuant to Article XXVI Section 100-244 which states that non-conforming lots less than 20,000 square feet in total size, require a front yard setback of thirty-five (35) feet and a total coverage of 20 percent. Authorized Signature CC: file, Z.B.A. e ¢t Southold Town Board o' ppeals -23 March 2 , 19 regular Meeting RESERVED DECISION: Appeal No. 3204. Upon application of DOUGLAS CASTOLDI , 855 Eugene ' s Road, Cutchogue, NY for a Variance to the Zoning r finance, Article VI , Section 100-61 , Bulk Schedule for permission to construct addition to restaurant leaving an insufficient frontyard setback on Kenney' s Road and North Sea Drive, Southold, NY; County Tax Map Parcel No. 1000-54=5-22 (Beachwood Cafe) . The public hearing on this matter was held on January 25, 1984, at which time the hearing was dlosed after receiving testimony. The board made the following findings and determination: By this appeal , appellant -seeks to construct : (a), a 12' by 35.5' addition along the westerly side of the existing restaurant leaving an insufficient setback at its nearest point from Kenney' s Road property line approximately 14 feet; and (b) a 7.5' by 8' vestibule which would leave an insufficient setback from North Sea Drive at 22.8 feet. 'The entrance of the restaurant is off of North Sea Drive and also contains a wooden walkway at ground level which is set back 22 .8 feet from North Sea Drive. For ,the record it is noted that the restaurant has been in existence since prior to the enactment of the zoning code (1957) . Also , the westerly-side addition is proposed for additional seating and is to be a greenhouse-type construction. It is the opinion of the board that the variance be granted with the restrictions that the westerly-side addition not extend further than 10' to the west (rather than the 12 ' proposed) leaving a setback of approximately 16' at its nearest point with Kenney' s Road , and that a barrier be erected along the west side to the front of the building to help prevent accidents into this glass construction. In considering this appeal , the board determines : (1 ) that the practical difficulties are sufficient to warrant the granting of this application; (2) that the relief as- requested is not substantial in relation to that generally existing in the neighborhood; (3) that the circumstances are unique in that the parcel in question is a corner lot; (4) that the relief will be in harmony with and promote the general purpo-ses of zoning of the protection and promotion of the public health , safety and welfare; (5)- that the irate-rests of justice would be served by allowing' the variance applied for since there will be no adverse changes affecting the vicinity of this project. Now, therefore , on motion by Mr. Goehringer, seconded by Mr. . Grigonis , it was RESOLVED, that Appeal No. 3204, application of DOUGLAS CASTOLDI , - Southol d. Town .Boar.d�Appeal s -24- March 2,04 Regular Meeting (Appeal No. 3204 - DOUGLAS CASTOLDI, continued: ) be and hereby -IS APPROV£D 'SUBJECT TO THE FOLL0WING CONDITIONS: 1 . That the westerly addition not -'extend more than 10 feet to the west (rather than the 12 ' as proposed) ; 2. That a barrier be erected from the rear of the building along the property line of Kenney' s Road to. the front of the building (to prevent possible' accidents into the glass construction) . Location of Property: Kenney' s Road and North Sea Drive, Southold, NY; County Tax Map Parcel No. 1000-54-5-22 (Beachwood Cafe). Vote of the. Board: Ayes : Messrs . Goehringer, Grigonis , Doyen , Douglass and Sawicki . 'This resolution was unanimously adopted. RESERVED DECISION: Appeal No.' 3170® Upon application for DANIEL SHEL-LEY, by Gary Flanner Olsen , Esq. , Main Road, Mattituck, NY for a Variance __ or approval- of access , New York Town Law, Section 280(A) , and a Variance to the Zoning Ordinance,Article III , Section 100=31 , for approval of insufficient area of one parcel in this proposed two-lot division located on a private right- of-way off the north side of Oregon Road_ , Cutcho.gue, NY,; County Tax Map Parcel No. 1000-83-2-4. The public hearing on this matter was held earlier this evening, at which time the hearing was declared closed after .receiving testi- mony pending deliberations-. The board made the following findings and determination: By this appeal , appellant seeks : (a) approval of access over an existing , traveled right-of-way as indicated on the •January 26, 1984 survey prepared 'by_ Young & Young having a length commencing at a point at the north side of Oregon Road 3708.08 feet to the- southerly line of land now or formerly of Kiapper, thence westerly 1001 to the premises in 'question; and (b)• ap'proval of two proposed lots from the requirements of the Bulk Schedule. In researching the history of the parcel and right-of-way in question, a variance for approval of access was granted over this same right-of-way for a width •of- 15 feet on December 22 , 1976 under Appeal No. 2232 -to premises now or formerly of C. Klapper, County Tax Map District 1000, Section 83, Block 2 , Lots 5 and 6. On June 14, 1977 , the Building Department accepted the improvements to the right-of-way in accordance with the prior decision of the Z. B.A. The August 30, 1983 Notice of Disapproval from the . Buiiding Inspector has further required an "updated" review under New York Town Law since the right-of-way is in need of minor repairs -and has also determined that variances from the bulk schedule are required. f • Ro6Ew J.GAmEy SUFFOLK COUNTY MCUTTYE THOMAS ISLES,AICP DEPARTMENT OF PLANNING DIRECTOR OF PLANNING June 16, 2003 Town of Southold Zoning Soard of Appeals Pursuant to the requirements of Sections A 14-14 to 23 of the Suffolk County Administrative Code, the following application(s)submitted to the Suffolk County Planning Commission is/are considered to be a matter for local determination as there appears to be no significant county-wide or inter-community irnpact(s). A dec}sion of local determination should not be construed as either an approval or a disapproval, ApplicantW Munigjlpal File Numberlsl i Cliff&Phil's Lobsterhouse* 5051 t *Alternative relief appears warranted consistent with developmental restrictions,particularly as set forth by the Zoning Board of Appeals. I Very truly yours, i Thomas Isles Director of Planning S/s Gerald G.Newmit Chief Planner "GGN= O;ICCNpRNYtiZQNlN0120NINOiWYORKINna LD20b9lIUNt9g50i1,JUN ' � I ' I y LOGAMON MAIUNG ADDRESS t6 1(5)653-5 100 H. LEE DENNISON B{XG-•4Y?i FL44F1 ■ P O, BOX 091 00 ■ \ 1. EDNIVETERANS MEMORIAL htIGHWAY HAUPPAUGE NY 1 1765 TELl;COPfER<5 161 8SJ-d444 5i1 pyo ��� & Christopher J. Poppe JUIN 1 0 2003 ,oe 282 North Sea Drive Southold, NY 11971 ZQ IP C, P,0A,,D of PEALS .dune 9, 2003 � Ms Lydia Tortora, Chair Board of Zoning Appeals Town of Southold Main Road Southold, NY Re: Application 5051 - Cliff and Phil's Lobster House Dear Ms. Tortora: I have just returned from a walk around my neighborhood, the Kenney's Beach area. Many of my fellow residents stop and talk. The discussions continue to center around the status of the above cited application. It has been over 2 years since Tyke Rutkowski was quoted in the local paper. He wanted a larger waiting room-and new bathrooms at the location owned by his wife and brother-in-law: Since that time, , this application hes taken on a life'and size of its own. I do not have to remind you of the great opposition to this expansion that has been voiced by both residents and the Kenney's Beach Civic Association as a whole. There has been a large financial commitment to oppose this attempt to irreparably alter the quality of life in this quiet, residential area. If need be, additional financial support would be forthcoming to continue to protect our rights. Why is it taking so long to decide? This should be very straight- forward. You have a non-conforming use, property, building and so on. Non-conforming should not be made MORE non-conforming. You have an applicant who bought a seasonal restaurant now trying to claim "financial hardship" on the backs of the residents as he tries to keep it going 7 days a week from noon `til ? (last weekend , myself and neighbors were woken up at 1 :45 am with loud noises emanating from the lot) This is NOT a "family restaurant" any longer. I sent the ZBA pictures of the lot and the parking problem when the restaurant is full. Where do we propose to put the cars when.the building is expanded into the lot?; And it was documented at the last hearing that there have already been 4 expansions. It-is a tiny corner property.. And it IS a valuable piece of property as'documented in the real estate listing I sent to you earlier this year. i a Mr. Ed Forrester told my wife in the Fall of 2000 that nothing could be done to change the restaurant and/or its size in any way. It was grandfathered into the zoning laws and no variances could be granted as the area was strictly residential. And so, the residents will not stand by and have zoning laws interpreted to allow a business owner to receive relief when the hardship was self-created, when relief cannot be justified, and when the relief jeopardizes the health, safety and welfare of the residents. Granting of this application could set unwarranted precedents and threaten the value of homes in,the area and the quality of life for those who live there. Sincerely, ris Poppe PATRICIA C. MOORE Attorney at Law 51020 Main Road Southold,New York 11971 Lj COPY Tel: (631) 765-4330 Fax: (631) 765-4643 Margaret Rutkowski MelissaMcGowan Secretaries November 26, 2002 Rivkin & Radler N EAB Plaza, I Uniondale, NY 11556-0111 Att : George J. Tsunis Esq. Re : Elbow East Use Variance Dear George: We strongly believe :., that your client and this property have benefitted from several large expansions to the nonconforming use . The "old timers" count 4 expansions in the history of this property. Consequently they strongly oppose this application. However, I have consulted with my , clients and they suggest the following conditions on any permit with recorded enforceable Restrictive Covenants : 1 . Expansion be limited to the Restaurant use only, your client insists that he is a "family restaurant" , and wishes to continue this reputation. According to your testimony the bar area is presently 18 seats ( 2 tables with 4 seats and 10 stools) . The bar has been accessory to the restaurant business and should remain as is and without expansion. 2 . No expansion of "The Lounge" . An expansion of the lounge will cause defacto expansion of the bar by standing room and seating room for bar patrons . The Lounge area, as proposed, would result in increasing the bar. Also the expansion of the "Lounge" would increase your parking needs . Between the waiting room full of , dinner patrons (with a pre-dinner or post dinner drink) , the bar area, and the restaurant, ' f the parking will be strained. In the summer the restaurant has been overflowing with your present use. The expanded Lounge will only exacerbate the inadequate parking and expansion of the nonconforming use. 3 . The restaurant is presently 74 seats (according to your testimony) you ask for 98 seats . This is an unreasonable request . We believe that given the previous use variances obtained and the fact that the Health Department only allowed 70 seats you should be limited to 15% (of 70) or 10 additional seats . If the board grants you the maximum of 30% then no more than 21 additional seats . You should not benefit from the illegal expansion of your occupancy. We would ask you to stipulate to size of expansion to dining area only. 4 . We have no objection to Handicap access, your restaurant is already handicap accessible but if you wish to enhance the accessibility we do not object . However, your building does not need to be enlarged as proposed in order to merely enhance handicap accessibility. We would stipulate to enlarging bathroom and hallways . 5 . Maintain one story structure- the elevations reflect a second story height (2nd phase may be mezzanine) which could slide by without review and no building permit . Covenant one story/first floor use. 6 . Hours of Operation consistent with a "Family Restaurant" (closing door for new customers) : Sunday - Thursday 10 : OOp.m. Fri & Sat : 11 : 00 p .m. We understand that your last seating presently is 8 :30p.m. 7 . Request "no parking" signs be posted around , Elbow East, internal sign directing patrons to park in parking lot (Town Board action required at Owner' s request) 8 . All lighting be limited to low level down lighting suitably shielded to prevent glare into neighboring properties . 9 . No - live entertainment, d.j . , karaoke, T.V less than 27" (no sport' s bar! ) 10 . HVAC soundproof and no direct exhaust- filtered or other method to control external cooking odors . 11 . Consideration to residences on delivery times- after 9 : 00 a.m. before 8 : 00p.m. 12 . Entrance and exists be clearly identified- the parking area has no curbs now- control parking lot access . 13 . No further expansion of footprint or occupancy by current or future owners . Please fax to me a copy of the financial data you presented to the ZBA. The financial data you submitted does not substantiate the use variance. What financial records or projections have been prepared, or any that will be prepared, for use with potential lenders . Given the data submitted to date, these records would not substantiate bank" financing for the anticipated construction. The affected neighbors are quite upset . Many of the neighbors are year-round voting members of the community. The supporters of an expansion of Elbow East are not the neighbors who feel the impacts of the use. The burden should not be ours to suggest mitigation of the impacts on a "use variance" . The bottom line is that the owner is attempting to have the bar support the restaurant . That is not how the use was permitted to continue from a hot dog stand to a family restaurant and should not be how the use expands . VerytrJuly yours, l I Jif i��-� _ .Patricia C. Moore cc: Zoning Board Mrs . Poppe (for distribution) IV 11K e�' 9 V MEMORANDUM OF LAW OPPOSITION TO USE VARIANCE AND AREA VARIANCE CLIFF & PHIL'S LOBSTER HOUSE The testimony and Town records indicate that the subject property has been residentially zoned since 1957. The "restaurant" began as a hot dog stand and has grown as a preexisting nonconforming use into a " restaurant". The applicants wish to build an addition which doubles the size of the structure. Most objectionable to the community is the significant expansion of the small accessory bar area. The proposed expansion will enlarge the restaurant and convert the bar area into a principal use. The law does not authorize such an expansion. LAW Where a use variance is sought, the applicant must meet the stringent requirement of showing practical difficulties and unnecessary hardship Matter of Consolidated Edison Co. v. Hoffman, 43 N.Y.2d 598, at 607, 403 N.Y.S.2d 193, 374 N.E.2d 105). The stringent requirements have been codified in Town Law Section 267-b(2)(b). Town Law provides that no such use variance shall be granted by a board of appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship the applicant shall demonstrate to the board of appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located, (1) the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence; (2) that the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood; (3) that the requested use variance, if granted, will not alter the essential character of the neighborhood; and (4) that the alleged hardship has not been self-created and (c) The board of appeals, in the granting of use variances, shall grant the minimum variance that it shall deem necessary and adequate to address the unnecessary hardship proven by the applicant, and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community. NY TOWN s 267-b To satisfy the first requirement, the landowner must submit "dollars and cents" evidence establishing that no permissible use in the residential zoning district would yield a reasonable return. Matter of Shinnecock Hills Golf Club v. Nardy, 62 N.Y.2d 761, 476 N.Y.S.2d 834, 465 N.E.2d 373. The petitioners claim that they can not make a profit with the existing restaurant. There is, however, evidence in the record that one of the applicants (one of whom is the chef) was aware of the zoning restrictions prior to purchasing the property, had been involved in the operation of the business for several years prior to purchasing the restaurant, and purchased with full knowledge of the zoning restrictions. Thus, if the applicant paid an unduly high price for the property and the business does not generate a large enough profit for the applicant, any hardship suffered as a result is self-inflicted. In addition, an expensive addition and reconstruction of the existing structure will add significant expense to the business and effectively reduce the anticipated profits. The courts have repeatedly stated that they should not be placed in the position of having to guarantee the investments of careless land buyers. (Matter of Carriage Works Enterprises v. Siegel, 118 A.D.2d 5683 570) 499 N.Y.S.2d 439; see also, Matter of Power House Home Road Corp. v. Board of Zoning Aupeals of the Town of Hempstead, 171 A.D.2d 796, 567 N.Y.S.2d 760). The fact that the premises would yield a higher return if expanded is irrelevant. It is well settled in the Courts that a claim that the use variance might yield a higher return, if the use variance is granted, is insufficient as a matter of law. Matter of Varlet/v. Zoning Bd. of Appeals of City of Saratoga Springs, 131 A.D.2d 905, 516 N.Y.S.2d 355. The absence of any "competent financial evidence" on the issue of reasonable return is a fatal defect in the application for a use variance. It is now well recognized by the courts of this State that in order to show that the land in question cannot yield a reasonable rate of return, an applicant must show proof"in dollars and cents form" which demonstrates that no permissible use will yield a reasonable return, and that " conclusory testimony of witnesses, unsupplemented by such proof, is insufficient", Matter of Village Bd. of Vil. of Fayetteville v. Jarrold, 53 N.Y.2d at 257,,440 N.Y.S.2d 908, 423 N.E.2d 385; Matter of Crossroads Recreation v. Broz, supra., Matter of Pica v. Bennett, 164 A.D.2d 859, 559 N.Y.S.2d 369; Matter of 35 Broadway Co. v. Bennett, 161 A.D.2d 767, 556 N.Y.S.2d 362; Matter of Town Bd. of Town of Huntington v. Zoning Bd. of Appeals of Town of Huntington, 161 A.D.2d 647, 555 N.Y.S.2d 425. The only proof submitted by the applicant on this issue was that of the financial statement submitted as a compilation report solely based on information provided by the client. The accountant's statement claims a "net loss" of$1,743 for 2002. Please note that the net loss has steadily decreased since 2000. The financial statement is self-serving and unsubstantiated. Opponent's accountant, Kafitin & Negrin identified the deficiencies in the applicant's financial statement: First, as a cash business the accountant is merely relying on information provided by the client. There is no independent verification by the accountant. Second, the financials do not break down food and liquor which would help verify income. Salaries do not break down between chef/owner and other employees. Daily table turnover in and out of season, average lunch and dinner prices, ratio of liquor to meals, and other factors are normally considered in a business plan. Third, our accountant questions the rationality of applicant's claim that an expansion will increase its volume and therefore profitability. Such a claim is speculative, as well as, undermines all zoning principles. If the restaurant business is not profitable the applicant could make a profit from the sale of the,property. No evidence was submitted as to the purchase price of the premises. No evidence was shown of the present value of the property based on the sales of homes within Kenny's Beach area . Public records show that a two bedroom home 2 doors away from the restaurant sold for $675,000.00 (photograph in ZBA file). Three vacant lots on Lake Drive sold for $145,000 each in early 2002, one lot is back on the market for $190,000.00. This area has enjoyed a 40% increase in the value of land in less than one year. The values continue to escalate, particularly for a water-view property such as the subject property . The expansion of the restaurant and most importantly the bar would alter the essential character of neighborhood given the residential character of the area and increasing value of residential homes in the area. Thus, there is no rational basis upon which the Board can conclude that the premises would not yield a reasonable return without a use variance. The restaurant may remain or could be sold for residential use at a significant profit. Miltope Corp. v. Zoning Bd. of Appeals of Town of Huntington 584 N.Y.S.2d 865, 184 A.D.2d 565 It is well established in the law that,a use variance need not be granted merely because the zoning ordinance proscribes the most profitable use of the land or because the use with the variance will yield a higher return . Matter of Town Bd. of the Town of Huntington v. Zoning Bd of Appeals, 161 A.D.2d 647, 555 N.Y.S.2d 425. The courts have stated that they are not required "to guarantee the investments of careless land buyers" Matter of Kingsley v. Bennett, 185 A.D.2d 8143 8163 586 N.Y.S.2d 640. The applicants purchased the restaurant-with their eyes wide open to the limitations of the commercial use in the residential neighborhood. The restaurant is now open year round and my clients observed a very successful holiday season. As the restaurant increases in popularity for their cuisine they can choose to relocate to a conforming business zoned parcel. They should not seek to expand at this location. With respect to uniqueness, the fact that the parcel is on a corner is insufficient to establish that it is unique under the zoning ordinance. (see, Matter of Faham v. Bockman, 151 A.D.2d 6655 543 N.Y.S.2d 100; Matter of Kallas v. Board of Estimate of the City of New York, 90 A.D.2d 7745 455 N.Y.S.2d 288, affd 58 N.Y.2d 1030, 462 N.Y.S.2d 443, 448 N.E.2d 1354). The petitioners have not shown that the irregular shape of their parcel is unique as compared to neighboring properties. Matter of Douglaston Civic Assn. v. Klein, 51 N.Y.2d 963, 435 N.Y.S.2d 705, 416 N.E.2d 1040; Matter of Colonna v. Board of Stds. & Appeals of City of New York, 166 A.D.2d 528, 560 N.Y.S.2d 705. Additionally, the fact that a use variance had been granted in 1984 to expand the restaurant does not obligate the respondent to grant another variance in 2002. Knight v. Amelkin, 150 A.D.2d 528, 541 N.Y.S.2d 435); particularly since conditions have changed since 1984. The homes around the restaurant, small seasonal cottages, are being converted to year round occupancy. Moreover, the value of properties have drastically escalated. Any uniqueness about the property that might have been present in 1984 is no longer present, residential development of the area has increased, and traffic in the area had also greatly increased. When viewed in the light of changing conditions and-circumstances, the use variance must be denied. Elwood Properties, Inc. v. Bohrer 628 N.Y.S.2d 799, 216 A.D.2d 562 (1995) - With'regard to the area variances, without the expansion of the building the area variances are moot. Any renovations to the existing structure can be achieved without encroaching further toward the street. The restaurant appears to be level with the existing grade therefore handicap accessibility can be achieved without significant expense. Internal renovations which do not increase the floor area of the bar can be achieved without compromising the zoning laws. CONCLUSION The neighbors can live with the existing restaurant. They should not be faced with an expansion which compromises their residential community. Despite the restaurant patron's pressure to grant the relief requested, a use variance must be denied as a matter of law. Patricia C. Moore Esq. on behalf of the following property owners on North Sea Drive: Mr. and Mrs. Stetz Mr. Waldshan C.P.A. Mr. and Mrs. Poppe Ms. Rosicki Esq. Mr. Paskoff Mr. Litner Mr. Sonnenbom Esq. dr RIVKINRADLER� ATTORNEYS AT LAW GEORGE J. TSUNIS PARTNER ! r, (516) 357-3214 JY,IVp, �U , george.tsunis@nvkin com January 23, 2003 Town of Southhold Zoning Board of Appeals P.O. Box 1179 Town Hall 53095 State Route 25 Southhold,NY 11971-0959 Re: Cliff and Phil's Lobster House (ZBA #5051) RR File No.: 700778-00001 Dear Chairman and Members of the Board: This letter is in response to your request on January 16,,2003 public hearing, for expenses of the underlying half acre parcel of Cliff and Phil's Lobster House for the latest fiscal year regarding the above-referenced matter. Cliff and Phil's Lobster House :'. Statement of Expenses for the Year Ended June 30,2002 Expenses Real Estate Taxes $ 4,985 Insurance 20,695 Mortgage 38,400 Repairs and Maintenance 20,393 Total Expenses 84 473 Very truly yours, _ RIVKIN RADLER LLP. George J. Tsunis GJT:gb F•\DOCSOPEN\HUGHES M\#1664310 v1-CLIFF/TowN OF SOUTHHOLD EAB Plaza 275 Madison Avenue The Atrium 1330 North Dutton Avenue Uniondale, New York New York, NY 47 Maple Street Suite 200 11556-0111 10016-1101 Third Floor Santa Rosa, CA Tel 516.357 3000 Tel 212 455.9555 Summit, NJ 07901-2505 95401-4646 Fax:516 357 3333 Tel 908.608 2200 Tel 707 525 5400 www.nvkinradler corn t � PATRICIA C. MOORE Attorney at Law , ' JAN 51020 Main Road Southold,New York 11971 Tel: (631) 765-4330 ' Fax: (631) 765=4643 Margaret Rutkowski Secretary January 23 , 2003 Southold Town Zoning Board of Appeals Lydia Tortora, Chairwoman Southold Town Hall 53095 Main Road Southold, NY 11971 Re : Elbow East Restaurant Dear Chairwoman and Board members : In accordance with our request, enclosed please find the Assessor' s property card for the restaurant formerly known as Ross' s, now O'Mallys . The property was sold on December 20 , 2000 for $400, 000 . 00 . (Zoned Business) Also enclosed is the property card for the restaurant formerly known as "Brian' s Song" and later "Portobello" . On March 25, 1996 the property sold for $349, 141 . 00 . (Zoned Buiness) According to the testimony Elbow East sold in 2002 for $350, 000, a discount price compared to the market value of restaurants sold in the last 7 years . V'ery tr yours, r atricia C. Moore PCM/mr Encls : ulul - toaaTOWN OF SOUTHOLD PROPERTY RECORD CARD OWNER STREET VILLAGE p`IST• SUB. LOT ORMER OWNFR N _ a E ACR. y!�ra(IV Ct.Va%r)-1 % S w TYPE OF BUILDING RES. SEAS. VL, -FARM COMM. CB. MICS. Mkt. value - LAND IMP. TOTAL DATE REMARKS !.t i_ •t 7G'ct Vc F tel,_ X753 - V� 4n, {�V 7 �Q " 11115Ao 2 �-)f)i� �1 f ��� Tillable FRONTAGE ON WATER Woodland FRONTAGE ON ROAD - Meadowland DEPTH,, f -- House Plot BULKHEAD Total _ _ _ (, � �l.�..,. 5{ 3—TOWN ® S®UTHOLD PROPERTY ARD CARD OWNER STREET {ti ``Mf ' VILLAGE DIST. SUB. LOT I A,a6 FORMER OWNER �'�'� O� N E ACR. 7V-N <0h t1G %� r.{ I S r W - . q TYPE OF BUILDING RES. SEAS. VL. FARMCOMM.! CB MICS. kt. Value /4����'v•�r=' Y' Cd f• `' ..,t_. LAND I IMP. TOTAL ATE REMARKS (1/,1' �5- S�� C /i ->% • /S a�a,r To a•I,- r� 1 76 C y�QO ,r"Oo �J �' 7 T h's.�d:.��:a�a t;,,. 7 r n 7 -66 0 4 0 �� r, 27 lJL" ('l-'l �„ !� V.Z11 ' r7;J O 6Z3 00 6150c::) 7?LYS rrC^ 17yn �I�7C'i J �` � , z G✓!11 AGE BUILDING CONDITION �� �!a_ r 1. a!<�i'o - L 111 i�p 4:1 VA/C-i rrl o,-e NEW NORMAL BELOW ABOVE ' 15 Go— C_orn_0t , U: D �� FARM Acre Value Per Vclue --L I !-71/ jo Q0 S r �, h�i Cc Y- i Acre Tillable FRONTAGE ON WATER u. Woodland FRONTAGE ON ROAD r Meadowland DEPTH House Plot BULKHEAD Tot i—I DOCK k� MEN ■ ME MENMEM ME ME MMEN ME■■■■■■ ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ ■■■■■■■■■■■■■■■■■■■■■ ■■MEMO 4 ■■■■■■■M_©_M_■_■_■■■■■■■■ ■■■■■E y :- max.- 4 ■■■■■■Ol�f�r■■■■tiO EEMMEMEEM■■ ■ M9l�I ■■I■■�■■■■■■■■■■ • ti, , ■■ ■■ I■■■■ W., ■■■■■IIrMI■M�1l,�Il�■t■MMMM■MM■MMM■■M " - `� ■■■■■■OMt■■iii■■I[?' MMM■ MMO ._----- __-- ____ _ _ __ - -- _ _ - ■© IA!�L!!�I■1■■M■■Illl,■■■M■MMM ME ■ M■■■MM■M■M■MM■■N MEM■■ .. . :• . 4 I mj��I'l (• ., _. TOWN OF SOUTHOLD PROPERTY RECORD CARD OWNERSTREET �° fi-- .f� VILLAGE DIST. SUB. LOT FBM R OW�R,�TN _ ACR. S TYPE OF BUILDING SES. SEAS. VL. FARM COMM. CCB. MICS. Mkt. Value LAND IMP. TOTAL DATE REMARKS 0 e`• t� 6 pp _ r 41 2,2 a 7 a b / o G �' ,• �.�1 E S'/// 73 r�G b a d - 8o a v v dogy _ - ss m - AGE BUILDING CONDITION NEW NORMAL BELOW ABOVE FARM Acre Value Per Value Ac re - Tillable FRONTAGE ON WATER Woodland FRONTAGE ON ROAD Meadowland DEPTH33 s House Plot BULKHEAD Total DOCK ■■■■ 1■QO410f11l��■■■■■■■■MEMO■■■ a- ■■■E■�..o�..��■■■■■■■■■■■■■■■■■■ NEI 01 mom ME ■■■■NIMM■■■ .■■E■■■■■■■■■M■■■■■ INMAN No mom 1 l 0 ME No y ■■■■ INN■■■■■ ONO No ■ ■■■■■■■■■ ■■E�1IE■EMEE■ESS■■EM■■EMM■■■■EMEMEMMRREW E■ ■■M�■■■■■r■■■■■■■■■■■ ■■■■■■ EMOMMEMEM ONE ■■■■EEM■■E■■E■EMMMM■MM■M■■ME■ Foundation Basement xt. Walls Interior Finish - . Fire Place .. pe Roof Ro�ms Ist Floor ormer . . MEMORANDUM OF LAW IN OPPOSITION TO ELBOW EAST APPEAL Prepared by: Patricia C. Moore, Esq. - 51020 Main Road Southold, NY 11971 (631) 765-4330 v MEMORANDUM OF LAW IN OPPOSITION TO ELBOW EAST APPEAL Elbow East Restaurant has made an application to the building department to expand a pre-existing nonconforming use in an r-40 residential zoning use district. The Southold Town Zoning Ordinance prohibits enlargement,reconstruction or structural alterations to nonconforming uses unless the use of the building is changed to a conforming use. According to Elbow East proposed site plan the addition consists of the following: PLOT AREA 21,932 SF EXISTING BUILDING 2,650 SF PROPOSED EXTENSION 1,456 SF COOLER AREA 115 SF ENTRY &RAMP 222 SF TOTAL AREA 1,793 SF (entire square footage must be included) TOTAL SIZE OF RESTAURANT AFTER EXPANSION: 4,426 SF POINT I EXPANSION EXCEEDS 48% INCREASE IN EXPANSION ACTUAL EXPANSION IS 59.6 % The applicant claims that the expansion is 48% (existing 2,780 SF and New 1,311 SF - hand written notation on floor plan). According to the schedule shown on the site plan the percentage of expansion exceeds 59%. Regardless of whether the expansion is 48% or 59%, the expansion is not permitted. New York courts have held that the exception for nonconforming uses is a limited one and that the goal is ultimately to phase out these uses Matter of Harbison v. City of Buffalo, 4 N.Y.2d 553, 559-560, 176 N.Y.S.2d 598, 602-603, 152 N.E.2d 42, 44-45; Nonconforming uses while permitted to continue are generally prohibited from expanding. Examples of such limitations are of trailer parks not being permitted to increase the number of sites Matter of Cave v. Zoning Bd. of Appeals of Village of Fredonia, 49 A.D.2d 228, 233, 373 N.Y.S.2d 932, 936); Seasonal use to year round use Town of Oyster Bay v. Avalon Yacht & Cabana Club, 38 A.D.2d 604, 605, 329 N.Y.S.2d 185) in which the Court held that winterizing the bungalows and then renting them for full-time, rather than seasonal, occupancy represented some change in use . The Supreme Court, Appellate Division, held that conversion of three buildings to all-year residences was an invalid expansion of preexisting nonconforming use requiring [application for] special use permit or variance. The proposed expansion will be used to triple the size of the bar. In reviewing the plans on record with the building department the bar has always been very small and accessory to the restaurant.- The proposed expansion is primarily to expand the bar. Therefore converting the use from a small seasonal restaurant containing a small bar area to primarily a bar which is not permitted. The expansion is aimed to compete against"Legends Restaurant"which is a well known gathering place for after hours drinking. The proposed expansion in a residential neighborhood would result in significant adverse impacts on the community as well as the neighborhood. POINT II THE PROPOSED EXPANSION IS SUBSTANTIAL AND MAY REQUIRE ENTIRE STRUCTURE TO COMPLY WITH CURRENT REGULATIONS A. New York State Fire Prevention and Building Code: The proposed expansion is considered"substantial"under the New York State Fire Prevention and Building Code (NYSFP&BCode) therefore the entire building,both existing and proposed, would be required to meet current code. The Zoning Board is being asked to approve an expansion which the owner could never afford and ultimately never build. The Zoning Board should require the applicant to present this proposal to the building department for code compliance before this matter is considered any further. B. Federal Emergency Management Act(FEMA) 1. The Federal Emergency Management Act (FEMA) as administered by the Town and DEC may also present a substantial burden to the applicant which would eliminate this application. The applicant has not shown the flood zone of the property. If the structure falls into the"V" zones then the bottom of the lowest girder must be located at elevation 13. The homes on the surrounding properties are in"V" zones therefore the structures are placed on piles. Moreover if the expansion exceeds " 50% of the value of the existing structure"then the entire structure, existing and proposed, must conform to FEMA regulations. The existing restaurant is at finished floor elevation 5', the proposed bar is at elevation 8'. The flood zone would determine whether the plans comply with the flood zone. 2. The proposed project not only exceeds 50% as shown,but also would exceed the regulations due to previous expansions. The 50% limitation considers previous expansion so that the aggregate of all expansions must be less than 50%. The restaurant has had several renovations. In 1983 when Douglas Castoldi and Paul Vanderlaske purchased the property the restaurant was a one story frame and block building with a wood deck along Kenny's Road. (Exhibit A) In 1984 the Zoning Board granted a variance for a small seating area(10' x 35.5') and a small vestibule entrance on North Sea Drive. The Zoning Board denied the application, as applied, and only granted minimal relief. (Exhibit B) Thereafter in 1989 the owners of the restaurant known as "Cliff& Phil's" obtained a permit to make the following "repairs": roof, replace structurally unsound framing members, all windows, flooring, wall coverings, insulation and new 1 kitchen added. (Exhibit C) The building inspector should have denied the application, however, the improvements were required after a kitchen fire and certain relief was granted as of right. Nevertheless, even though this was done within the existing footprint of the structure, the FEMA regulations would consider these improvements toward that cumulative 50% value limit. Therefore we would argue that the proposed expansions is not permitted under the FEMA regulations. C. The existing sanitary system will require Health Department review. The existing system will probably not meet current standards. A much larger sanitary system would be required in an envirorunentally sensitive area. While the Suffolk County Health Department has jurisdiction over sanitary systems, this board should consider all environmental issues. POINT III REGARDLESS OF THE NYSFP&B CODE AND FEMA REQUIREMENTS THE ZONING BOARD SHOULD NOT GRANT THE VARIANCES FOR THE FOLLOWING ADDITIONAL REASONS: A. The preexisting nonconforming structure only resulted in 12.3% lot coverage, the applicant proposes to construct an expansion that would result in 21.5% lot coverage. The original structure, with permitted repairs and alterations, accommodated 78 person occupancy. No occupancy figure is provided in the proposed plans but from the square footage shown appears to be double. B. The parking requirements are inadequate. The parking along North Sea Drive and Kenny's Road require backing out into the street in a residential neighborhood and public beach area. The Town Beach parking is often limited by the DEC as "Piping Plover nesting areas"therefore public parking is not always available during the summer. C. The entrance has been relocated to face the private residences and the parking area is being expanded removing any existing buffers and showing no landscape buffers in violation of site plan requirements. D. The restaurant's hours of operation are generally lunch to 9:00 p.m. If the bar is expanded the NYS regulations would override any attempts to limit the hours of operation. Bars are permitted to remain open until 4:00 a.m. Even if the bar chose to close at 2:00 a.m., this would be a significant increase in the current hours of operation and a significant impact on the surrounding residential neighborhood. Consequently the expansion results in an intensity of the use and significant expansion in violation of the zoning ordinance. The use variance criteria and area variance standards for the expansion can not be met, therefore we ask that you deny this application. R RIVKIN L L P RADLER 1330 NORTH DUTTON AVENUE EAB PLAZA 275 MADISON AVENUE / SUITE 200 NEW YORK, NY 10016-1101 ( r\ SANTA ROSA, CA 95401-4646 UNIONDALE, NEW YORK 11556-0111 (212) 455-9555 e 'v' (707) 525-5400 (516) 357-3000 THE ATRIUM FAX(516) 357-3333 47 MAPLE STREET•THIRD FLOOR WWW mklnradler cont SUMMIT, NJ 07901-2505 (908) 6OB-2200 GEORGE J. TSUNIS PARTNER (516) 357-3214 george tsunls@r1vkln com December 5, 2002 VIA FEDERAL EXPRESS J Town of Southold TEG - 6 Zoning Board of Appeals P.O. Box 1179 _R Town Hall, 53095 State Route 25 Southold,New York 11971-0959 Re: Cliff and Phil's Lobster House (ZBA#5051) RR File No.: 700778-00001 Dear Chairman Goehringer and Members of the Board: Enclosed please find a copy of the covenants and restrictions which were previously provided to you on December 4, 2002,by my client. It is my understanding that my client submitted an original signed and executed covenant and restriction along with five copies. Please advise me if this meets your approval or if any corrections, deletions or additions need to be made to this document. Thank you for your anticipated cooperation concerning this matter. Very truly yours, RIVKIN RADLER LLP George J. Tsunis GJT/lg Enclosure ITEC DECLARATION OF COVENANTS AND RESTRICTIONS'- — -- _ THIS DECLARATION, made this day of December 2002, by CLIFF AND PHIL'S LOBSTER HOUSE, 50 North Sea Drive, Southold, New York hereinafter referred to as the "DECLARANT". WITNESSETH WHEREAS, the DECLARANT has filed an application with the Zoning Board of Appeals of the Town of Southold whereby DECLARANT sought a use and area variance to expand a portion of the building located at 50 North Sea Drive, Southold, New York which premises are currently described on the Suffolk County Tax Map as 1000-54-5-22, more particularly described by metes and bounds description as set forth in the annexed Schedule "A", and WHEREAS, the DECLARANT has requested a use and an area variance, in connection with its intention to build an addition to the existing non conforming structure, and; WHEREAS, in connection with said application a public hearing was held before the Zoning Board of Appeals of the Town of Southold on November 14, 2002 ; and WHEREAS, the DECLARANT has agreed to impose certain covenants and restrictions regarding the use of the premises described in the annexed Schedule "A" in connection with the requested use and area variances; and WHEREAS, the Zoning Board of Appeals of the Town of Southold pursuant to their decision No. dated did grant a use and area variance for the premises described in Schedule "A" subject to the filing of certain covenants and restrictions, as more fully set forth in said decision, a copy of which is made a part hereof and attached as Schedule`B". NOW THEREFORE, the DECLARANT, for the purposes of carrying out the intentions described above, as a condition of the grant of a use and area variance, does hereby-declare that the premises described in the annexed Schedule "A" shall be held, sold and conveyed only subject to the following covenants, conditions and restrictions which shall run with the land and shall be binding on all parties having a right, title and interest in said premises or any part thereto,their heirs, successors and assigns as follows: (A) 1. Owner and/or occupant of premises shall create and maintain a landscaped and planted buffer zone between their property and any residence. Such planted buffer zone shall consist of trees and plantings that shall serve as an adequate visual buffer to any nearby or adjourning residences and no trees shall be cut unnecessarily for the purpose of this application except to provide for the parking purposes shown on the site plan dated October 1, 2002 that has been submitted to the Zoning Board of Appeals. 2. All exterior lighting shall be focused towards the property and back shielded along the perimeter of the property. 3. Owner and/or operator agree that the hours of operation of the restaurant shall be Sunday thru Thursday 9:00 A.M. to 1:00 A.M. and Friday and Saturday-9:00 A.M. to 2:00 A.M. 4. Owner and/or occupant agree that the parking lot is to be striped in accordance with the submitted site plan by Robert H. Whelan dated 10/1/02 and the parking lot shall be clearly marked indicating ingress and egress to parking lot. 5. Owner and/or occupant agree that employees of the restaurant shall park on the west side of the restaurant. 6. Owner and/or occupant agree that deliveries for the restaurant shall be on weekdays between the hours of 9:00 A.M. to 8:00 P.M. 7. Owner and/or occupant agree to sound proof the HVAC unit and to filter the exhaust to control cooking odors. 8. Owner and/or occupant agree to limit the number of seats in the restaurant to 94 dinner seats and 22 bar seats. 9. Owner and/or occupant agree to limit the addition to the existing 2,860 square foot building to 1,418 square feet and to no further expansion of footprint of building. 10. That these covenants and restrictions shall run with the land, subject to the right of the Zoning Board of the Town of Southold with the consent of the Declarant, or the Declarant's heirs, successors or assigns, to amend or repeal any or all of the foregoing covenants and restrictions. IN WITNESS WHEREOF, the Declarant has hereunto set its hand and seal the day and year first above written. By: WILLIAM BERLINER By: KATHERINE RUTKOWSKI 2 v F\DOCSOPEN\HUGHES MVt1652025 Vl-CLIFFANDPHHsc&RS 3 r e 4 ACKNOWLEDGMENT State of New York ) :ss.. County of ) On 2002, before me, the undersigned, personally appeared William Berliner, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. NOTARY PUBLIC ACKNOWLEDGMENT State of New York ) :ss.: County of ) On 2002, before me, the undersigned, personally appeared Katherine Rutkowski, personally known to me or proved to me on-the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted,-executed the instrument. NOTARY PUBLIC 4 J DEC ® 5 � f r . Date: December 5, 2002 Southold Town Zoning Board of Appeals Main Road Southold, New York 11971 Re: Elbow East Addition /Renovation Submitting six copies (6) of the Declaration of Covenants and Restrictions for Elbow East. Thank you, K. Rutkowski __ Elbow East s DECLARATION OF COVENAM AND IMMMONS THIS DECLARATION, made this S- day of December 2002, by CLVF AND PHIL'S LOBSTER HOUSE, SO North Sea Drive, Southold,New York hereinafter referred to as the"DECLARANT', WITNESSETH WHEREAS,the DECLARANT has filed an application with the Zoning Board of Appeals of the Town of Southold whemeby DECLARANT sought a use and area variance to expand a portion of the building located at SO North Sea Drive, Southold, Now York which pmnises are curr®8y described an the Suffolk County Tax Map as 1000-54-5-22, more particularly described by metes and bounds description as set forth in the arutexed Schedule"A",and WTIEREAS, the DECLARANT has requested a use and an area varia nm in connection with its intention to build an addition to the existing ion conforming structure, and; WHEREAS, in connection with said application a public hearing was held before the Zoning Board of Appeals of the Town of Southold on November 14,2002 ;and WHEREAS, the DECLARANT has agreed to impose certain covemis and restrictions regarding the use of the premises described in the annexed Schedule "A" in connection with the requested use and eaten vaaianms;and WHEREAS, the Zoning Hoard of Appeals of the Town of Southold pursuant to their decision No. ; dated _,. . did grant a use and area variance for the premises described in Schedule "A" subject to the filing of certain covenants and restrictions,as more fully set forth in said decision,a copy of which is made a part hereof and attached as Schedule"B". NOW TIMEFORE, the DECLARANT, for the purposes of carrying out the intentions described above, as a condition of the grant of a use and area variance, does hereby declare that the premises described its the annexed Schedule "A" shall be held, sold and conveyed only subject to the following covenants, conditions. and restrictions which shall rust with the land and shall be binding on all parties having a right, title and interest in said premises or any part thereto,their 2 eh%successors and assigns as follows (A) 1. Owner and/or occupant of premises shall create and maintain a landscaped and planted buffer zone between their property and any residence. Such planted buffer stone shall consist of trees and plantings that shall serve as an adequate visual buffer to any nearby or adjourning residemees and no trees shall be cut unnecessarily for the pugKft of this application concept to provide 1 { for the parking putposes shown on the site plan dated Off' I, 2002 that has been submitted to the Zoning Board of Appeals. 2. All exterior lighting shall be focused towards the propergt and back shielded along the perimeter of the property. 3. Owner and/or operator agree that the hours of opetatlon of the restaurant shall be Sunday&m Thursday 9:00 A,M. to 1:00 A.M. and Friday and Saturday-9:00 A.M.to 2:00 A.M. 4. Owner and/or occupant ages that the parking lot is to be suiped in accordance with the submitted site plan by Robert IL Whelan dated 10/1/02 and the parking lot shall be clearly ntaikod indicating mWea and egress to parking lot 5. Owner and/or occupant agree that employees of the restaurant shall park on the west side of the restaurant. 6. Owner and/or occupant agree that deliveries for the restaurant shall be on weekdays between the hours of 9:00 A.M. to 8:00 P.M. 7. Owner and/or occupant agree to sound proof the MVAC unit and to filter the exhaust to control cooking odors. 8_ Owner and/or occupant agree to limit the number of seats in the restaurant to 94 dinner seats and 2f bar seats. 9. Owner and/or occupant agree to limit the addition to the cdsting 2,860 square foot building to 1,418 square feet and to no ftnrther expansion of footprint of building. 10. That these covenants and restrictions shall run with the land, subject to the right of the Zoning Board of the Town of Southold with the consent of the Declarant, or the Dcolararit's heirs, successors or assigns, to amend or repeal any or all of the forgoing covenants and restrictions. IN WITNESS WHEREOF, the Declarant has hereunto set its hand and seal the day and year first above written. WMLIAM BERL By: &J�,e�� �2 r I{ATHBPJNB RUTKOWMU 2 t State of NOW York ) :ss.: County of ) OA � " .3.� 2002, before me, lmdersippo ed. P o Y aMM04 'William Salina, peraomUy lotoatn to me or proved to me on the basis of satisfactory evidence to be the h9 iv'idual(s) whose n=e(s) is (arc) subscribed to the within =tn>anent and acknowledged to me that hetshelthey executed the same m hislhedtheir c ty(ies), and that by hialherttheir siSaaMe(s) on the ineWMcnt, the iMMdual(s), or the pmm upon behalf of Which the individusl(s) acted, =ccuttd the insticutnent. NOTARY PUBLIC SARAH 9.KErMCK Notary Pub! State M Ypijt No.01 12g QualifNd in Term Expires Jtrrte State of Nov York ) County of ) on e� 2002, be&m me, the uadersi�d, P wwnallY appeared R,athedne Rutkowski, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose natne(s) is (are) sub=lbed W the _ withm Mst rlulnent and aftowledged to me that Wshdthey executed the samae m hislt,edtheir capmty(ies), and that by histherAh* signature(s) on the instrument, the individual(s), or the petsmt upon behalf of which the individual(s) acted, executed the instrument. J." NOTARY PUBLIC SARAH S.KETTRICK- Notary Public State of New York No.olkEb061Z97 QaaliiiW in Sui Ilk Term Expires June _. 4 -Inc. Cliff&&'Phil's'L®bster'hTouse, Coin 'ilatiori,,F'inancial Statements- . SHELDON& HELINsm,LLP" _ Certzfed'Pub&,Accountants ' - SHELDON _ H9LINSKI, LL',- Certified Public Accoiintants • Meinbers of. New York State Society ; - of Certified Public Accountants Lillian C. Sheldon, CPA American Institute of _ Karen A. Helinski, CPA Certified Public Accountants", Officers'&-Directors Cliff&•Phils Lobster House, Inc. : 50 North Sea,Drive , Southold,New York-11971 _ We have compiled the accompanying-Statement of Assets, Liabilities and'Stockholder's -Equity-cash basis-of Cliff&Phil's Lobster House,Inc.as of June.30,2001 and June'30,2000,.and . the'related, statements of revenues ,and expense -,cash tax- basis- .for the ,years then' ended; in accordance with:Statements, on Standards for Accounting grid Review Services issued by the -American Institute of Certified Public Accountants., . A compilation is limited to presenting-in the form of'financial statements inforinati'on that is the representation of management. We'have not-audited-or reviewed the accompanying financial -statements and,accordingly, do not express'an opinion'or`any,other form of assurance on them:- f Managementhas elected to oniit-substantially all,of the disclosures included in the financial ' statements'prepared.on the income tax basis of accounting. If the omitted disclosures were included in' the financial statements,-they might influence the user's -conclusions about- the•,company's financial position-and results of operation. Accordingly,these financial statements are not designedfor those who are not informed about'such matters. :. = /4� Sheldon&Helinski, LLP Certified Public Accountants February 27, 2002 Southold- New York 246 Beckwith Avenue • P-O Box. 500 0 Southold,New York 119710 (631) 765-1118 4-(631)'765-1755 FAX _y CLIFF&PHIL'S LOBSTER HOUSE, INC. Statement of Assets, Liabilities and Equity- Cash Basis As at June 30, 2001 and June 30, 2000 Assets June 30, 2001 June 30, 2000 Current Assets Cash $ 13,279 $ 8,539 Fixed Assets Building, at cost, less $61,173 accumulated depreciation 81,356 85,881 Building Improvements, at cost, less $34,070 accumulated depreciation 52,822 - 55,672 Machinery and Equipment, at cost, less $48,117 accumulated depreciation 2,180 2,620 Land 40,000 40,000 Total Fixed Assets 176,358 184,173 Total Assets $ 189,637 $ 192,712 Liabilities and Stockholders'Equity Current Liabilities Sales Tax Payable $ 4,734 $ 3,311 Stockholders'Equity Capital Stock 10,000 10,000 Additional Paid in Capital 329,194 329,194 Treasury Stock (36,631) (36,631) Retained Losses (117,660) (113,162) Total Stockholders'Equity 184,903 189,401 Total Liabilities and Stockholders'Equity $ 189,637 $ 192,712 See Accountant's Compilation Report CLIFF&PHIL'S LOBSTER HOUSE, INC. Statement of Revenue and Expense - Cash Basis For the Year Ended June 30, 2001 and June 30, 2000 June 30, 2001 June 30, 2000 Revenue Sales $ 618,748 $ 510,826 Interest Income 59 23 Total Revenue 618,807 510,849 Cost of Goods Sold Purchases 354,444 285,586 Total Cost of Goods Sold 354,444 285,586 Gross Profit $ 264,363 $ 225,263 Expense Salaries $ 132,194 $ 150,342 Payroll Taxes 17,947 19,060 Real Estate Taxes 4,616 0 Insurance 18,343 13,228 Equipment Rental 1,407 1,298 Utilities 28,587 21,113 Telephone 2,277 1,732 Credit Card Discounts 6,661 5,286 Office Expenses 2,778 2,146 , Professional Fees 1,925 2,646 Decor and Supplies 3,695 120 Advertising 8,782 7,827 Repairs and Maintenance 17,468 5,034 Refuse Removal 2,210 1,340 Laundry 6,408 5,055 License and Permits 2,185 1,524 Donations 1,365 0 Depreciation Expense 8,844 8,367 Franchise Tax 417 160 Miscellaneous 751 75 Total Expenses 268,860 246,353 Net Loss $ (4;497) $ (21,090) See Accountants' Compilation Report 10;- SHELD®N HELINSKI, LLP, Certifie&Public'Accountants Members of: New York-State Society of Certified=Public Accountants Lillian C. Sheldon, CPA American Institute of -Karen A. Helinski,•CPA, - , Certified Public Accountants February 27, 200 ; The,Zoning-Board of Appeals _ Southold,Town Hall ; Main Road ; Southold, New York -11971 Re: Cliff&Phil's Lobster House, Inc: Gentlemen: + I have been'requested to,comment on the fiscal conditon.of the-above,entity: The principal shareholders are not receiving,any, return on their investment: In order to = ; provide necessary working capital, they are accepting less-remuneration than they,could expect if they were employed by other businesses in•the industry. However, their losses have been reduced and it is reasonable to expect-a,positive rate of return on,their investment with an increased-volume of business. ; 'Sincerely yours,: ; - aren A. Helinski i Certified Public Accountant, KAH/bs cc: Cliff&-Phil's'Lobster House, Inc: - - 240 Beckwith Avenue ®•PO Box 500-40 Southold,New York 11971 0 (631) 765-1118 •'(631) 765-1755 PAX i ----77-1J►1 �141_�) /'J .5 o 00J, y =aL o-H•311 7vb'FI-;�7 ILI 'RIOUJaO 141nbHgM JO (Y9lyAy�ysYl �J i•uo"lppg of gl9gJg}tugJ+ }ou IJg suo- y►agl{Jsa Jo INyu.,gng Zo2 `� uel(A}gsul 6ulu pu.I #V3 }o 1"U61,10 gg} o{ put '"OJay 2� `1 •uatiMli(w Ou,pual Put 4am5• le{u.uJVJow .o6 'Auv4o7 o,, s of}NV�q sly ua pug 'paJgdoJ4 s}Ao"as .g{ uwg� JoI uos.w AIS unJ 11045 uogJag pa{ga_pYl 5649939l114a Jo ssa{Ygsgny o{ p.J.pscoa r wv IIs W pa p.asogm• JIo o-Ad 7► pg'4I JoAg9pysgugs4{oo dsYJ A&.Jnt dI»os 64 n }} a Qr 'ag•I Yor{ganpg g{gIS VJCA .MON 946}o 4411 ualN�S }i (� • sI A.uns s►g( o{ uol}Ippg Jo uoygJsylg pat;J°Y1agvA G ar 0 S1 r2. r-1r7r� X 4 - 311'tt estop ■ltt-(919) 1o71:1 �ryo/C -5-Y ,�lrr�lo� 70 . 7i 070�y1�os .moo r-yl)401 C77%-Zl� 1v o�10�07 iCLrf�dor�d ��Sv7zr�ofv�jr 717r,-,:l vrry 01 V-3;' Sp7--5/7 Y `1 5F Southold Town Board ofAppeafsIll MAIN ROAD- STATE ROAD 25 SOUTHOLDL PHONE Y. 7971 TEE ACTION OF THE ZONING BOARD OF APPEALS Appeal No. 3204 Application Dated January 4, 1984 (Public Hearing January 25, 1984) TO: Mr. Douglas Castoldi [Appellant(s)] 855 Eugene's Road Cutchogue, MY 11935 At a Meeting of the Zoning Board of Appeals held on March 2, 1984 the above appeal was considered, and the action indicated below was taken on your [ ] Request for Variance Due to Lack of Access to Property New York Town Law, Section 280-a [ ] Request for Special Exception under the Zoning Ordinance Article , Section [X] Request for Variance to the Zoning Ordinance Article VI , Section 100-61 , Bulk Schedule [ ] Request for Upon application of DOUGLAS CASTOLDI, 855 Eugene's Road, Cutchogue, NY for a Variance to the Zoning 7r- finance, Article VI, Section 100-61 , Bulk Schedule for permission to construct addition to restaurant leaving an insufficient frontyard setback on Kenney's Road and North Sea Drive, Southold, NY; County •Tax-Map Parcel No. 1.000-54-5-22 (beachwood Cafe) . The board made the following findings and determination: By this appeal , appellant seeks to construct: (a) a 12' by 35.5vJ addition along the westerly side of the existing restaurant leaving an insufficient setback at its nearest point .from Kenney's Road property 9 line„a ro.ximatel 14 feet; and (b.) a 7..5' by 8' vestibule which PP Y Fa would Ieave an insufficient setback from North Sea Drive at 22.8 feet. The entrance of the restaurant is off of North Sea Drive and - also contains a wooden walkway at ground level- which is set back -22.8 feet from North Sea ,Drive. For the record it is noted that the restaurant has been in existence since prior to the enactment of the zoning code (1957). Also, the westerly-side addition is proposed for additional seating and is to be a greenhouse-type construction. It is the opinion of the board that the variance be granted y with the restrictions that the westerly-side addition not extend further than 10' to the west (rather than the .12' .proposed) leaving a setback of approximately 16' at its nearest point with Kenney' s Road, and that a barrier be erected along the west side to the front of the building to help prevent accidents into this glass construction. IIn considering this appeal , the board determines: . (1 ) that the practical difficulties are sufficient to warrant the granting of this application; (2) that the relief as requested is not substantial in relation to that generally existing in the neighborhood; (3) that the circumstances are unique in that the parcel in question is a corner lot; (4) that the relief will be in harmony with and promote the general purposes of zoning of the protection and promotion of the public health, safety and welfare; (5) that the interests of justice would be served by allowing the variance applied for since there will be no adverse changes affecting the vicinity of this project. (CONTINUED ON PAGE TWO) DATED: March 27, 1984. CHAIRMAN, SOUTHOLD TOWN ZONING BOARD OF APPEALS Form ZB4 (rev. 12/81) Page 2 - Appeal No. 3204 Matter of DOUGLAS CASTOLDI i Decision Rendered March 2, 1984 i i Now, therefore, on motion by Mr. Goeh'ringer, seconded by Mr. Grigonis, it was RESOLVED, that Appeal No. 3204, application of DOUGLAS CASTOLDI, be and hereby IS APPROVED SUBJECT 'TO THE FOLLOWING CONDITIONS: 1 . That the westerly addition not extend more than 10 feet to the west (rather than the 12' as proposed); . j 2. That a barrier be erected from the rear of the building along the property line of Kenney's Road to the front of Ithe building (to prevent possible accidents into the glass constructlion). Location of Property: Kenney's Road and North Sea Drive,. Southold, NY; County Tax Map Parcel No. 1000-54-5-22 (Beachwood Cafe). Vote of the Board: Ayes': Messrs. Goehringer,j Grigonis, Doyen, Douglass and Sawicki . This resolution, was unanimoulsly adopted. oe GERARD P. G EHRIINGER, C IRM March 27, 1984. , NOTE: The type of barrier to be constructed is toibe recommended and/or approved by the Building Inspector. ; i f ' I I i i I • f ' I I i Horton Construction Co, Inc. P.O. Box 1442 Mattituck, New York 11952 516-298-5308 Sept. 19 1989 To Bldg Dept Town of Southold: We propose to make the following repairs to the restaurant located at Kenny's Road, Southold. Cliff & Phil's Repair roof as required replace all framing members which are no longer structurally sound. replace all windows replace wood flooring remove all existing wall coverings, insulation, install new insulation and wall coverings kitchen area to meet all current fire codes erry L.�Horton �for Horton construction Co. Inc. C l i f f & Ph 1 s Lobs-Ear Prat.` 7 - 5 - 58 L Brea 1170 sq f t o 2-$ Lj .47 I-- I L- � e _ _, off 10 -0 -- - Occupmncy �8 (A ,.� CDorf K � tchent =_ U 5 -0 U 4-0 > L co a`� co )�q En�Lry /2 S s Dining 31 -0 3-0 I � (Y Q N L \ i\ �� -- _ __ J � u L1 r a'�nl e y�j �rrnr�l I 3`o' _0 d 3 l' ` G PG. Cliff& Phil's Lobster House;Inca _ Comp ilatao�,Financial,Statements Tear Ended June.30, 2002 SHELDON,& HELINSKI, LLP _; Certified P,rrblic Accouiitantr SHELDON ; HEL1N$ , ,LLP, Certified Public:Aceoiintants, 'Members of. New York State Society, of Certified Public Accountants, LillianC. Sheldon, CPA , American Institute,of Karen A.-Helinski, CPA' Certified,Public Accountants-- Officers ccountants-Officers and Directors Cliff&Phil's-Lobster House,Inc. P.O.'Box 985' Southold, New York 11971 We have compiled the accompanying Statement of Assets and Liabilities and . Stockholders' Equity-modified cash basis of Cliff'&.Phil's,Lobster House, Inc: as"of June 30, 2002 and June 30, 2001,.and'the related'statement of revenue and expenses -,modified'cash basis ; for the'years then ended,in accordance with'Statements on Standards1dr Accounting and Review_ L L Services issued by,the American Institute of Certified Public Accountants. 'A compilation is,limited to presenting in the form of financial statements information that ; is,the representation of management.,We have not audited,or,reviewed the accompanying, . = financial statements and, accordingly, do not•express an opinion or any other form of assurance on them. Management has elected to omit substantially all of the disclosures ordinarily-included in the'f nancal_statements'prepared-on the modified cash basis of accounting. If the.omitted ; disclosures were included in the financial statements, they might influence the user's conclusions about the Company's financial position and-results of operations. Accordingly,,these financial ; statements are not.designed for those who are not informed about such matters: . = E �4 Sheldon &Helinski,,LLP Certified Public Accountants' , August 13, 2002 'Southold,-New York , _ 240 Beck-with Avenue 0 PO Box 5004 Southold,New York 11971 (631) 7'65-1118 0 (631) 765=1755 FAx f Cliff&Phil's Lobster House, Inc. Statement of Assets, Liabilities and Equity - Cash Basis As at June 30, 2002 and June 30, 2001 Assets June 30, 2002 June 30, 2001 Current Assets Cash $ 23,842 $ 13,279 Fixed Assets Building, at cost, less $65,697 accumulated depreciation 76,831 81,356 Building Improvements, at cost, less $36,920 accumulated depreciation i 49,972 52,822 Machinery and Equipment, at cost, less $52,378 accumulated depreciation 1,147 2,180 Land 40,000 40,000 i Total Fixed Assets 167,950 176,358 Total Assets $ 191,792 $ 189,637 Liabilities and Stockholders'Equity Current Liabilities Sales Tax Payable $ 5,144 $ 4,734 Stockholders'Equity Capital Stock 10,000 10,000 Additional Paid in Capital 329,194 329„194 Treasury Stock (36,631) (36,631) Retained Losses (115,915) (117,660) Total Stockholders'Equity 186,648 184,903 Total Liabilities and Stockholders'Equity $ 191,792 $ 189,637 r , See Accountants' Compilation Report Cliff&Phil's Lobster House, Inc. Statement of Revenue and Expense- Cash Basis For the Year Ended June 30, 2002 and June 30, 2001 June 30, 2002 June 30, 2001 Revenue Sales $ 665,682 $ 618,748 Interest Income 100 59 Total Revenue 665,782 618,807 Cost of Goods Sold Purchases 353,356 354,444 Total Cost of Goods Sold 353,356 354,444 Gross Profit $ 312,426 $ 264,363 Expense Salaries $ 164,230 $ 132,194 Payroll Taxes 20,555 17,947 Real Estate Taxes 4,985 4,616 Insurance 20,695 18,343 Equipment Rental 1,421 1,407 Utilities 26,807 28,587 Telephone 2,316 2,277 Credit Card Discounts 6,444 6,661 Office Expenses 2,200 2,778 Professional Fees 1,925 1,925 Decor and Supplies 632 3,695 Advertising 11,204 8,782 Repairs and Maintenance 20,393 17,468 Refuse Removal 415 2,210 Laundry 6,422 6,408 License and Permits 4,525 2,185 Donations 2,683 1,365 Depreciation Expense 11,636 8,844 Franchise Tax 399 417 Miscellaneous 796 751 Total Expenses 310,683 268,860 Net Income (Loss) $ 1,743 $ (4,497) See Accountants' Compilation Report Ma SUPPLEMENTAL MEMORANDUM OF LAW IN OPPOSITION TO ELBOW EAST APPEAL Elbow East Restaurant has made an application to the building department to expand a pre-existing nonconforming use in an r-40 residential zoning use district. The Southold Town Zoning Ordinance prohibits enlargement, reconstruction or structural alterations to nonconforming uses unless the use of the building is changed to a conforming use. According to Elbow East revised proposed site plan the addition consists of the following: PLOT AREA 21,932 sq.ft. EXISTING BUILDING 2,860 sq.ft. (?) (Using the 1984 site plan application in ZBA file: existing building: 2,230.75 + (83 variance granted- 10 x 35 = 350 addition) =2,580.75 sq. ft. (legally existing) Proposed extension: 1,418 Sq. ft. Gross Building Area: 4,278 Sq.ft. POINT I The applicants purchased a nonconforming use; if the building cannot financially support the use then it was a self created hardship to purchase with the expectations of expansion. The accounting statement is not persuasive. According to Kafitin&Negrin, Certified Public Accountants, the statement submitted does not provide sufficient information to which they could draw any definitive conclusion. In their letter the accountants point out the deficiencies in the proof submitted to support the claim of financial hardship. See letter dated November 13, 2002 attached . POINT II The property was re-zoned in the 1970's In 1984 the owners Castoli obtained a variance to increase a nonconforming use. The zoning board never asked about the seating capacity. The zoning board granted a significant expansion of the'foot print. A wing was added to the restaurant. The occupancy rating of the restaurant was 49. See attached Health Department application made by owner in 1988. In 1988 the Health Department reviewed an application for reconstruction after a"kitchen fire" and owner was granted approval for a 70 seat restaurant. In 1989 the building department granted the building permit for"repairs to roof, replace unsound framing members, all windows, flooring,wall covering, insulation, and new kitchen"- the building department granted a permit to build based on the ZBA variance, however the restaurant was significantly expanded from 49 seat restaurant to a 78 seat restaurant. (Health Dept. approval was for 70) Consequently in 1989 the building and nonconforming use was expanded by 63%. How many expansions is this residential community going to have to tolerate. This board must request an existing internal floor plan to control the unauthorized expansion of seating. In 2002 the applicant is now asking for an expansion of seating for 144 (Counting the proposed floor plan 118 seats at tables +26 seats at the bar) The seating is spaced out on paper as 118. Generally tables are closely positioned for maximum occupancy and post expansion occupancy could, in practice,be more than 114. Most significantly, the bar area is going from 8 seats to 26 seats (more than 300 % increase) The alleged reasons for the expansion are 1. handicap accessibility 2. lack of reasonable financial return As to handicap accessibility: the building is being "gutted" and the space reallocated for a significant overall expansion not the addition of handicap bathrooms. The bathroom renovation could be accomplished with a minimum investment. The zoning ordinance was amended in 1999, after the Route 48 study, to address re-zoning of existing previously conforming parcels along the North Road. Cliff's restaurant has been nonconforming for many years and was already permitted to expand as a nonconforming use in 1984. This is the second significant expansion of a nonconforming use which the applicant is asking this residential community to accept and this board to grant . The code at 100-243 (a)permits a 15% increase in the "overall footprint, except that said increase shall not exceed the maximum lot coverage. In addition, all other setback and area requirements shall apply." or (b)not more than 30% in the overall footprint, except that said increase shall not exceed the maximum lot coverage, and all other setback and area requirements shall apply,provided that the following site remediation measures, in full or in part, shall be determined by the Planning Board. The site plan was reviewed and only a 4'buffer could be provided. The Planning Board did not recommend the expansion of the nonconforming use. Since the property already enjoyed a significant expansion in 1984 as a nonconforming use, the Zoning Board could interpret 100-243 narrowly. The Zoning Board has not applied or interpreted Southold Town Code 100-243 previously. Given the nature of the use this ordinance should be carefully and strictly construed. We ask that you interpret this ordinance narrowly, and as long as your interpretation is not arbitrary, capricious or unreasonable, the Court will not annul your decision. Robert's Running; Creek Mobile Park Inc. v. Joseph Landolfi, 392 NYS2d 704, 56 AD2d 933 (1977) The board granted a variance in 1984 for additional square footage and the occupancy was almost doubled. (Exhibit A- survey of 1984 site plan. In appeal number 3204 the Board limited the extension towards Kinny's Road to 10 feet. The 10 ` x 35' addition resulted in occupancy from 40 persons to 78 persons. The expansion of the occupancy exceeded the standards and policies of the law for expansion of a use variance. The board limited the expansion to an enclosed"greenhouse addition" and vestibule. This Board in 1984 tried to carefully control the increase in the footprint and the resulting expansion of the use, nevertheless the occupancy almost doubled. This application should be denied,but if granted, must be carefully controlled and limited to the minimal authorized and the occupancy limits carefully controlled and monitored. The lot coverage should not be exceeded and legal setbacks should be maintained. The application is to reduce the front yard setbacks and reconstruct the building. They appear to be applying the outdoor unenclosed deck toward their footprint calculation to maximize the expansion. The expansion also necessitates maximizing the parking (43 spaces) leaving minimal buffers (4'row of shrubs). Setback variances are needed and the expansion of the building is intended to increase the occupancy Using the 1984 site plan: existing building: 2,230.75 + (variance- 10 x 35 =350 addition) =2,580.75 sq. ft. (legally existing)= 15% is 387 sq. ft. Using the 2002 plans: 2,860 x 15% is 429 sq.ft. We respectfully request that the Zoning Board deny the expansion,but if the use variance is granted you should very carefully limit the occupancy expansion. 11/13/2002 14:36 5168296001: KAFITIN NEGRIN ( PAGE 01 C'�titc�isd�C�ogaaounEanEs 98 C,ffzs,=?14 6�?gad cSt p473 oz z 66e,E Eek, Gear(Y"d 11021 (g16) 829-6o10 JEC��ofiLE7: (516) 529-6025 November 13, 2002 Patricia C. Moore,Esq. 51020 Main Road Southold,New York 11971 VIA Fax: 631765-4643 Re: Cliff&Phil's,Lobster House Inc. At the request of Stanley Waldshan we have reviewed the statements you submitted for the years ended June 30, 2001 and 2002. We have represented several restaurants and have been retained also to do projections for new restaurants. i These statements do not provide sufficient information to which to draw any definite conclusion but we can certainly make the following comments: 1. Why weren't statements submitted for the year ended June 30, 2002? The statements they have offered are eighteen months old. 2. The statements, although prepared by CPA's, are cash basis and compilation reports which are solely based on information provided by the client. Therefore, no assurance is given by the auditors for any independent verification especially concerning cash sales. Gross profit percentages seem too low by industry standards. This may mean that this cash basis entity has understated its sales_ The financials do not break down sales and costs between food and liquor which would also help to verify income. Salaries at a minimum should breakdown those of principals and other employees. They make a contention that salaries are below industry standards but choose not to divulge these amounts. Certain tests can be made to verify sales but these were not within the scope of the accountant's engagement. Therefore, any conclusions drawn by them concerning future volume and profits may not be based on correct information. - 11/13/2002 14:36 5168296025 KAFITIN NEGRIN C."" PAGE 02 I ' 3. The corporation seems to claim that through expansion it will increase its volume and profitability. We believe that it must prove this with information relative to daily table turnover in and out of season, average lunch and dinner prices, ratio of liquor to meals, etc. To further make this point the corporation increased its volume by 20% in 2001 and bad the salaries not decreased by $18,000 the corporation would have had a loss similar to 2000. This seems to dispel the theory that increase in volume always equates to profits. 4. We were told that this business was purchased by the present ownership in 1999. We assume at that time they anticipated making a profit. What has happened since then to make this operation unprofitable? In conclusion, it our opinion that the statements offered are incomplete and cannot be relied upon to determine if a reasonable return on investment is being reali.Eed by the ownership. Very truly yours, Kafitin&Negrin Alan Winton, CPA AW:alh A SUFFOLK COUNTY DEPARTMENT OF HEALTH SERVICES APPLICATION FOR CONSTf?UCTTON FOR SEWAGE DISPOSAL FACILITIES " AND MATER� SUPPLY ame FOR G1HER THAN SINGLE FAMILY RESIDENCES� ac ty, �F,2,-. . :,_ ... ; CLIk� '"%`Z�AiD=I?IIL°S LS3HSTRR -HOUSE Force I1S n y aC ty' cicat on ; r �-- - :EWm IlD. REF. NO. ID`` "OO� 50 �ipRihT $W'DRIVE'' OUt�I3bL Town ax ap oa _ -.;t= .__.___ n 'Sc3UTUOLD`� District '° '"`'"' 1000 `Section S4 dock 5 ature�oo ,us nes Lot 22 -"Restaurant .S: = gesfign`;an t{ary ow ac teP`,r5- ame ---��_- __. 2250 GRL} s. xI'h I`i Ig. .,Karlin,' fYix'• �i<, ac�I1ty__ `nerTs ��e. aC - t a �n reS5 ""'_ "' ----_.._ .. Px i,de:nt 5 1 ON as:ur veS Tefei0 e outhold, N.Y. 11971 �pl'iane� _ cuff - Lobs or.5 _ ame`�� 7 .,,.r7 (516) 76r,,-1203 i` i.o , . ,;;r.=• r0 Lobster.IIouse. xne. Prople�ty wn r's` t, a "' ert C+wn a for b Sea Drive ngSouthold, M.Y. 11971 eI eR ne o. ame o P RA -. _ -_. 5 765 -1203 Steve` G_'.,Tsontakia, P.E. . I icense No •,.; --- �---w 42817 Sia d es ® _ P. Box ,Riverhead, H.y. 1.1901 FT Te ep . No d►ge.',0 d 16) 7,27--7 411 5., ca Tfe�"`_...— ._" k-�� r. =< quarg'nota e' o . ng se"" -`Y__ 21 753, , .r;. Eyr. r, ,,A' ":' es a,u rant' w. `` :, ., Rate CCU pan6y ;. r: .';', atdX'' uPP Y d e r p ;r>:, s,,s-A ;. '�^•-"- `..,....� ,4(�� t•,'<.:�sr -h�.-[?'f�''y.',Z, E.=; Public, Private c-e one di�stence to ea 11::!:!:1i,'1 u C7 ate '. -, r 1.SSS t E1 1 S .I)iFr:' is project�'in'�an area!'covered b exists industrial y ng al nts7 covens R€1 2)5.- Do'you 'own and/or operate'an existing industrial f ,,name' and tel epho i t =� � g.,faddress•-a ne'no. soil yon Long 'Tsland? �.�:...'If`y r.ca Ling water used? NO Flow � Rate _ :. ---�-- Type (recycle 01, r once thru 4). wi1:1=cbuil r r ding.,be< heated? VL• `A 'If . i pump is utilized r • =hes --7-Fs < ', �-��;°,-;.••_.,k..:: ,.,-� _�s;�:,.,:,,.'3 ' .mss water jpum Fy` -:antifreeze used in system? Ped n a -Tum ng Rate an ourcey` ,X ' If';fossil fuels are tilized Quant ty an Type u comp ete the Toxic 'initial`. here rs qr.r o c Liquid forage, eg strat eons._aa?n -, If•,the'-facil z s.an ,r. ".. t ty requ res hydrocarbon storage fact l i ti s e such as gaso,inef�keroseneR`diesel gasohol` motor,oil;z"transmission ail, antifreeze, or waste oil.-.tanks, _then fill;, ut'7ox; r - - ,Liquid%Storage'Registration Forrns and initial here r''1 .. -, lc 5,1 Mill the facility be using, storing };;solve tg an toxic or j's�.such`a -�,, n s, acids,`` oring or handling � hazardous'materia �•° - - • plating solutions, inks, alcohol, s t: . Vur'products indoors or outdoors? If so, t Pesticides, hydrocarbonsoptoleum • 'M, ? .;7,,andTl2'of SuffolkACounty Sanitar Codeen indicate which type is a pl<i'cable-,i" See" .r. : ,Form ,� _ Y and complete the Toxic Articles' ; )• '`No Liquid Storage'-Registration ;,``_=:.'�`>•.,' _-:'�, -_,--, :.=E.�''t~?: `` - YES y; ;Ad ;Drum=starage NO areas?.� `=Aboveground or underground tanks for # 40-55 gal I on`drums-, " =raw or'waste=materials? # abovegromnd. - C.' 'Process tanks for99 degreasing latin # underground, .�" P treatment, plasticizers, etc. D. Collection Pumps, troughs, floor # Process tanks. drains, boiler drains, etc. E. Other (explain) t'' ' iN It'S CQ%z=jCjAL OjBIT PROJECIl' NAME rceAt,llrranL H.D. TTP-. (',10-88-005 LX-NrION 50 lNor-th Sea `)rfvv f u0im- RAM" NO. G.W. 1431'. ZONE—-- EMIE.RED TAX MAP DIM 1000 IM 2 2 05= cw� 111=1 4L"vJu4 bUUDIVISIC)N lu-1MVE UBDIvI:�nKi'l & Z7juWlVI-cil0N NAM (_'(7V hIA►pII;) FV)ft . Y_4 Sud TOWNPILL, ZONING LEITER 004 Fogg iii; ", DEHITE APPLICATION APPLICATION FEE $_j75-- COMANTS YOU 5178 PLAN ----------- x Is s- TO NAP No LOT SIZE 091D LOCATION CPD/ACRE DIS. 09SIGH CALCI DAG ON METES I GROSS FLOOR AREA x9v MAP SURF. NAT 500 FT. /fnu DETAILSOFNltg DETAILS SAN PLAN/PROFILE SM STATISTICS s c 0 14 13 T # LCYr AREA x - 00 600) = DEN111II PROPOSED YES ALJ.4M. pLeW r---7 PUBL'Ic SEWIRS UPS, SM. YES r1l ry 1111111 f Fm� SOILS: SA'r,. IJOLC FT, W11INESS 'I NO EXCAVIMON YES NJNMtEST Pu[3. <2000'50UPMAM v A: 10% OF jUr, GR �RE <IbOU' DI 'A sp B; DIST. M PUB- WATER MAIN 'T. ,PUB- WATER REQUIRED IF A > B YES No ------ PUB. WATER PROPOSED yES jc ME S� 0 lm—, ir • USE (SQ M') C ri 'Ir-YrAL F1,0W- FORM NO. 3 - - - - _ ,? TOWN OF SOUTHOLD �` BUILDING DEPARTMENT OCT Z 2 SOUTHOLD,N.Y. NOTICE OF DISAPPROVAL DATE: November 13, 2001 AMENDED: November 14, 2001 AMENDED: October 22, 2002 TO: Elbow East PO Box 985 Southold,NY 11971 Please take notice that your application dated November 6, 2001 For permit to make additions and alterations to an existing restaurant at Location of property 50 North Sea Drive, Southold 11971 County Tax Map No. 1000 - Section 54 Block 5 Lot 22 Is returned herewith and disapproved on the following grounds: The proposed addition/alteration to a non-conforming building with a non-conforming use, on a 21,932 square foot lot in the R-40 District, is not permitted pursuant to Article XXIV, Section 100-243, which states; "A non-conforming building containing a nonconforming use shall not be enlarged, reconstructed or structurally altered or moved, except as set forth below, unless the use of such building is changed to a conforming use." A restaurant is not a permitted use the Residential R-40 District pursuant to Article III, Section 100- 31A. In addition, the proposed addition to an existing non-conforming building notes a front yard setback of +/- 21 feet,maintaining the existing front yard setback. Therefore, the proposed addition to an existing non-conforming building notes a front yard setback of+/- 21 feet, maintaining the existing front yard setback. Therefore, the proposed addition/alteration is not permitted pursuant to Article XXVI, Section 100-244, which states that non-conforming parcels, measuring between 20,000 to 39,999 square feet in total size requires a minimum front_yard setback of 40 feet. Total lot coverage, following the proposed addition,will be less than 20 percent. Although the surveyor notes a total lot coverage as being+/- 19 percent, the building department has determined the final lot coverage to be approximately+/- 16 percent. ------% --------------- ------ —AL on ignature CC: ZBA, File Note to Applicant: Any change or deviation to the above referenced application may require further review by the Southold Town Building Department. FORM NO. 3 NOTICE OF DISAPPROVAL DATE: November 14, 2001 TO: Elbow East Amended: Februamy 13, 2002 PO Box 985 Southold, NY 11971 FEB, Please take notice that your application dated November 6, 2001 For permit to make additions/alterations to an existing restaurant at Location of property 50 North Sea Drive, Southold, County Tax Map No. 1000 - Section 54 Block 5 Lot 22 Is returned herewith and disapproved on the following grounds: The proposed addition/alteration to a non-conforming building with non-conforming use, on a 21,932 square foot lot in the R-40 District, is not permitted pursuant to Article XXIV Section 100-243A.1, which states; "Nothing in this article shall be deemed to prevent the remodeling, reconstructioor enlargement of a nonconforming or conforming nonresidential building with a nonconforn ' g nonresidential use or construction of an addition to existing buildings or additional buil on the premises, so long as said increase in size of the buildings created by enlargement of the existing buildings or structures or by the construction of a new and separate building or structure does not result in an increase in the overall building footprint(s) of more than 15%, except that said increase shall not exceed the applicable maximum lot coverage. In addition, all other setback and area requirements -shall apply." The existing footprint of the existing building is +/-2,780 square feet and the proposed addition is noted as being+/-1,311, an approximate increase of 48 percent. A restaurant is not a permitted use in the residential R-40 district pursuant to Article III, Section 100- 31A. In addition, the proposed addition to an existing non-conforming building notes a front yard setback of twenty-one (21) feet, maintaining the existing front yard setback, and a total lot coverage of 21.5 percent. Therefore, the proposed addition%alteration is not permitted pursuant to Article XXVI Section 100-244 which states that non-conforminX lots less than 20,000 square feet in total size, require a front yard setback of thirty-five (35) feet and a total coverage of 20 percent. Authorized Signature CC: file, Z.B.A. H ( p0. FORM NO. 3 J� NOTICE OF DISAPPROVAL ( a�) DATE: November 13, 2001 TO: Elbow East Amended: November 14, 2001 PO Box 985 Southold,NY 11971 Please take notice that your application dated November 6, 2001 For permit to make additions/alterations to an existing restaurant at Location of property 50 North Sea Drive, Southold, County Tax Map No. 1000 - Section 54 Block 5 Lot 22 Is returned herewith and disapproved on the following grounds: The proposed addition/alteration to a non-conforming building with non-conforming use, on a 21,932 square foot lot in the R-40 District is not permitted pursuant to Article XXIV Section 100- 243, which states; "A nonconforming building containing a nonconforming use shall not be enlarged,reconstructed or structurally altered or moved except as set forth below, unless the use of such building is changed to a conforming use." A restaurant is not a permitted use in the residential R-40 district pursuant to Article III, Section 100-31A. In addition the proposed addition to an existing non-conforming building notes a front yard setback of twenty-one (21) feet maintaining the existing front yard setback, and a total lot coverage of 21.5 percent. Therefore the proposed addition/alteration is not permitted pursuant to Article XXVI Section 100-244 which states that non-conforming lots less than 20,000 square feet in total size require a front yard setback of thirty-five (35) feet and a total coverage of 20 percent. 7/ Y Authorized Signature CC: file, Z.B.A. �v� �Fl1RM NO. 3 /�///j NOV 1 2®0 NOTICE OF DISAPPROVAL --- __ , `� ; DATE: November `13;200.1 TO: Elbow East PO Box 985 Southold,NY 11971 Please take notice that your application dated November 6, 2001 For permit to make additions/alterations to an existing restaurant at Location of property 50 North Sea Drive, Southold, County Tax Map No. 1000- Section 54 Block 5 Lot 22 Is returned herewith and disapproved on the following grounds: The proposed addition/alteration to a non-conforming building with non-conforming use, on a 21,932 square foot lot in the R-40 District is not permitted pursuant to Article XXIV Section 100- 243,which states; "A nonconforming building containing a nonconforming use shall not be enlarged,reconstructed or structurally altered or moved except as set forth below, unless the use of such building is changed to a conforming use." A restaurant is not a permitted use in the residential R-40 district pursuant to Article III, Section 100-31A. In addition the proposed addition to an existing non-conforming building notes a front yard setback of twenty-one 21) feet maintaining the existing front yard setback. Therefore, the proposed addition/alteration is not permitted pursuant to Article XXVI Section 100-244 which states that non-conforming lots less than 20,000 square feet in total size,require a front yard setback of thirty-five 35) feet. Total lot coverage following the proposed construction, would increase to 21.5%. 0 Authorized Signature CC: file, Z.B.A. APPEALS BOARD MEMBERS ��0�0 � 530951d Town Main Road Gerard P. Goehringer, Chairman Lydia A. Tortora y Z P.O. Box 1179 George Horning Southold,New York 11971-0959 Ruth D. Oliva ZBA Fax (631) 765-9064 Vincent Orlando �Ol �� Telephone(631)765-1809 http://southoldtown.northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD TOWN MEMORANDUM TO: Building Department Attn: Michael Verity FROM: Jerry Goehringer, ZBA Chairman DATE: April 16, 2002 SUBJECT: Handicap Bathroom for Existing Churches This will confirm that minor types of alterations or addition(s), similar to the handicap bathroom proposed for the existing Shiloh Church use at 135.-3-22 is not required to file a Special Exception application with this Department. Thank you. 1 ` - OFFICE OF t BOARD OF APPEALS Southold Town Hall 53095 Main Road Southold, NY 11971 765-1809 tel. 7659064 ZBA fax. REPLY FORM Dated: TO: (� Your application is incomplete for the reasons noted below. - (�(j It is requested that the following be forwarded as soon as possible (within about 7 days, if feasible). The advertising deadline is 22.days before the meeting date and the information is necessary for review and advertising purposes. You may forward the information by fax at 765- 9064, however, please send the original by mail. Thank you. ( ) The appeal was not filed within 60 days of the decision of the Building Inspector. Missing information -please see missing information checked below. Please submit all the documentation, together with information noted below. If you have any questions, please call us at 765-1809. Thank you. 1 Information requested: ( ) Notice of Disapproval issued by the Building Inspector after'his/her review of this particular project map. ( ) Check payable to the Town of Southold totaling $ ( ) Signature and notary public information are needed. of the map were not included/(Preparer's name and dates J X15 for the subject I 1 e 'showing the doc 6�9 7&6� � to April 23, 19571 //ff fe, ��.& a company, and i ds and tax bills c x is /' / ci / X ` Vop Town Of Southold + , 1 P.O Box 1179 Southold, NY 11971 * * * RECEIPT * * * Date: 11/16/01 Receipt#: 7500 Transaction(s): Subtotal 1 Application Fees $600.00 Check#: 7500 Total Paid: $600.00 Name: Rutkowski, Katherine Elbow East Po Box 985 Southold, NY 11971 Clerk ID: LYNDAB Internal ID:42153 r _ - APPEALS BOARD MEMBERS VFFO��� �® ®� Southold Town Hall Gerard P. Goehringer, Chairman �� 53095 Main Road Lydia A. Tortoracoo P.O. Box 1179 George Horning Southold,New York 11971-0959 Ruth D. Oliva ®� ZBA Fax (631) 765-9064 Vincent Orlando Telephone�� Telephone(631) 765-1809 http://southoldtown.northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD 2/14; 2/20; upd. 2/27 4:30 p.m. AGENDA SOUTHOLD TOWN BOARD OF APPEALS THURSDAY, FEBRUARY 28, 2002 6:30 p.m. Call to Order by Chairman. I. STATE ENVIRONMENTAL QUALITY(SEQRA) REVIEWS/RESOLUTION (none at this time) II. POSSIBLE DELIBERATIONS/DECISIONS (carryovers from prior calendar): Appl. No. 5063 VICTOR RUTKOWSKI. This is a request for a Variance under Zoning Code Section 100-244B based on the Building Inspector's November 30, 2001 Notice of Disapproval. The applicant proposes an addition to the existing dwelling with a front yard setback of less than 40 feet. Location of Property: 340 Theresa Drive, Mattituck; Parcel 115-13-22. Appl. No. 5055 -VINCENT O'NEILL— This is a request for a Variance under Zoning Code Section 100-244B based on the Building Inspector's May 1, 2001 Notice of Disapproval. The applicant is requesting approval of the location of an existing (deck) addition with a side yard setback of less than 15 feet. Location of Property: 3500 Cox Neck Road, Mattituck; Parcel 113-8-1. Appl. No. 5067 — CHRISTOPHER and IRENE VITTI. This is a request for a Variance under Zoning Code Section 100-30A.3 based on the Building Inspector's December 4, 2001 Notice of Disapproval. The applicant proposes additions and alterations to the existing dwelling with a rear yard setback of less than 50 feet. Location of Property: 11805 Soundview Avenue, Southold; 54-5-45.9. Appi. No. 5070—ART SAFALOW. This is a request for a Variance under Zoning Code Section 100- 33 based on the Building Inspector's December 21, 2001 Notice of Disapproval. The applicant proposes to locate a garage partly in the front and side yards, rather than a rear yard. Location of Property: 737 Old Wood Path, Southold; 87-1-23.4. Appl. No. 5062 -JOHN&ANNEMARIE CURTIN. This is a request for a Variance under the Zoning Code, Section 100-244B, based on the Building Inspector's November 27, 2001 Notice of Disapproval. The applicants propose additions and alterations to dwelling with a setback at less than 35 feet from the front property line. Location of Property: 745 East Road, Cutchogue; 110-06-13. Thomas Heine, Architect. Appl. No. 5057 - DAVID & TRISH HOWE. This is a request for a Variance under Zoning Code ~ / Section 100-242A based on the Building Inspector's November 16, 2001 Notice of Disapproval. The applicant proposes an addition and alterations to the existing dwelling with a front yard setback of less than 40 feet. Location of Property: 90 West Dr., Cutchogue; 1000-110-5-45. Garrett Strang, Architect. Appl. No. 5059 - JOSEPH AND BETH CASTRONOVO. This is a request for a Variance under the Zoning Code, Section 100-244, based on the Building Inspector's October 25, 2001 Notice of Disapproval. The applicants propose a second-story addition to the existing dwelling with a setback at less than 10 feet on one side (with a 23 ft. total for both side yards) and setback at less than 35 feet from the front property line. Location of Property: 250 Wesland Road, Southold; 1000-59-2-20. Cannella Associates, Arch. Page 2-Agenda February 28, 2002 Public Hearings Southold Town Board of Appeals Appl. No. 5066 - POSILLICO CONSTRUCTION. This is a request for a Variance under Zoning Code Section 100-33 based on the Building Inspector's December 7, 2001 Notice of Disapproval. The applicant proposes to locate a garage in an area other than the required rear yard. Location of Property: 3040 Kerwin Boulevard, Greenport; 1000-53-4-44.35. (Also see possible Amended Notice of Disapproval for change in yard identification due to modified location of new dwelling closer to the front line.) Appl. No. 5054 - JOHN & PATRICIA STACK. This is a request for a Variance under Zoning Code Section 100-33 based on the Building Inspector's August 14, 2001 Notice of Disapproval. Applicants propose to relocate an accessory structure (shed)to a front yard area. This property has two front yards and two side yard designations. Section 100-33 requires a rear yard location. Location of Property: 7650 Nassau Pt. Rd., Cutchogue; 1000-118-3-4.1 Appl. No. 5056 - GEORGE S. CAMBOURAKIS. This is a request for a Variance under Zoning Code Section 100-244 based on the Building Inspector's November 16, 2001 Notice of Disapproval. The applicant proposes an additions and alterations to the existing dwelling with a front yard setback of less than 40 feet at 200 Cedar Drive, East Marion; 1000-22-1-3 and 4. Appl. No. 5060 - RUTH ANN BRAMSON. This is a request for a Variance under Zoning Code Section 100-30A.3 based on the Building Inspector's' December 7, 2001 Notice of Disapproval. The applicant proposes additions and alterations to the existing dwelling, and the building permit application was disapproved for the reason that the height is three stories instead of the Code limitation of 2-1/2 stories. Location of Property: 12042 Main Road, East Marion; 31-14-4.5. Patricia Moore, Esq. Appl. No. 5064 - MARY LEONARDI. This is a request for a Variance under Zoning Code Section 100-2448 based on the Building Inspector's December 5, 2001 Notice of Disapproval. The applicant proposes a new dwelling with a rear yard setback at less than fifty (50)feet. Location of Property: 1285 Reydon Dr., Southold; 80-2-15.1. Proper-T Services, Inc., agent. III. PUBLIC HEARINGS: (Continued from prior meetings): 6:45 p.m. (Carryover from January Hearing) - Appl. No. 5034 - RUST FAMILY PARTNERSHIP. Interpretation and/or Relief for Addition with setback variances from front lot line and bulkhead, at 4680 Wunneweta Road, Cutchogue; 111-14-34. R. Lark, Esq. for the applicant; P. Moore, Esq. (for J. Cella). 7:15 p.m. Appl. No. 4927 - KACE LI. INC. (Carryover from January 24, 2002.) This is an Appeal requesting Reversal of the Building Inspector's Notice of Disapproval dated August 13, 2001, which disapproval denied an application for a building permit for two-family dwellings under Article IV, Section 100-42A.2. The reason stated in the Notice of Disapproval is that the proposed project indicates several two-family dwellings on a single parcel, and that the Code allows only one such structure per lot as a permitted use. Zone District: Hamlet-Density (HD). Location of Property: South Side of North Road or C.R. 48, 500+- feet east of Chapel Lane, Greenport; Parcel 40-3-1, now or formerly referred to as "Northwind Village" site. M. Pachman, Esq; A. Tohill, Esq. New application: 7:45 p.m. Appl. No. 5051 -CLIFF AND PHIL'S LOBSTER HOUSE/RESTAURANT. Based on the F l ` �1 Page 3 —Agenda February 28, 2002 Public Hearings Southold Town Board of Appeals Building Department's Notice of Disapproval issued November 13, 2001, amended November 14, 2001, applicant is requesting: (a) an Interpretation under Article XXIV, Section 100-243 to Reverse the Building Department's determination which stated that the proposed addition/alteration to an existing restaurant establishment is not a permitted use in the residential R-40 District, or alternatively a Variance under Section 100-243A authorizing the proposed addition to the existing restaurant, a nonconforming use in a nonconforming building; and (b) a Variance under Section 100-244B to locate the proposed addition maintaining the same nonconforming setback at less than 35 feet from the front property line; and (b) a Variance under Section 100-244B for a total lot coverage in excess of the code limitation of twenty (20) percent of the total lot area. Zone District: R-40 Residential. Location of Property: Corner of the East Side of Kenney's Road and the south side of North Sea Drive, Southold; County Tax Map Parcel 1000-54- 5-22. George Tsunis, Esq. IV. OTHER POSSIBLE DELIBERATIONS/DECISIONS on the POSSIBLE DELIBERATIONS/DECISIONS on the followingapplications: :1 Pending.Applications (from above hearings, if deemed appropriate by the Board at this time). V. RESOLUTIONS/UPDATES/OTHER: A. Other: Discussion regarding Inspections of Assigned Files in complete form for March calendars. V. EXECUTIVE SESSION (if any). _f APPEALS BOARD MEMBERS ®�®%uFFOg/re � a� Southold Town Hall Gerard P. Goehringer, Chairman �� 53095 Main Road Lydia A. Tortora CzP.O. Box 1179 George Horning ® Southold,New York 11971-0959 Ruth D. Oliva � � ZBA Fax (631) 765-9064 Vincent Orlando 1 Telephone(631) 765-1809 http://southoldtown.northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD 2/14; 2/20; upd. 2/27 4:30 p.m. AGENDA SOUTHOLD TOWN BOARD OF APPEALS THURSDAY, FEBRUARY 28, 2002 6:30 p.m. Call to Order by Chairman. I. STATE ENVIRONMENTAL QUALITY(SEQRA) REVIEWS/RESOLUTION (none at this time) 11. POSSIBLE DELIBERATIONS/DECISIONS (carryovers from prior calendar): Appl. No. 5063 VICTOR RUTKOWSKI. This is a request for a Variance under Zoning Code Section 100-244B based on the Building Inspector's November 30, 2001 Notice of Disapproval. The applicant proposes an addition to the existing dwelling with a front yard setback of less than 40 feet. Location of Property: 340 Theresa Drive, Mattituck; Parcel 115-13-22. App). No. 5055 - VINCENT O'NEILL— This is a request for a Variance under Zoning Code Section 100-244B based on the Building Inspector's May 1, 2001 Notice of Disapproval. The applicant is requesting approval of the location of an existing (deck) addition with a side yard setback of less than 15 feet. Location of Property: 3500 Cox Neck Road, Mattituck; Parcel 113-8-1. Appl. No. 5067 — CHRISTOPHER and IRENE VITTI. This is a request for a Variance under Zoning Code Section 100-30A.3 based on the Building Inspector's December 4, 2001 Notice of Disapproval. The applicant proposes additions and alterations to the existing dwelling with a rear yard setback of less than 50 feet. Location of Property: 11805 Soundview Avenue, Southold; 54-5-45.9. Appl. No. 5070—ART SAFALOW. This is a request for a Variance under Zoning Code Section 100- 33 based on the Building Inspector's December 21, 2001 Notice of Disapproval. The applicant proposes to locate a garage partly in the front and side yards, rather than a rear yard. Location of Property: 737 Old Wood Path, Southold; 87-1-23.4. Appl. No. 5062 -JOHN&ANNEMARIE CURTIN. This is a request for a Variance under the Zoning Code, Section 100-244B, based on the Building Inspector's November 27, 2001 Notice of Disapproval. The applicants propose additions and alterations to dwelling with a setback at less than 35 feet from the front property line. Location of Property: 745 East Road, Cutchogue; 110-06-13. Thomas Heine, Architect. Appl. No. 5057 - DAVID & TRISH HOWE. This is a request for a Variance under Zoning Code Section 100-242A based on the Building Inspector's November 16, 2001 Notice of Disapproval. The applicant proposes an addition and alterations to the existing dwelling with a front yard setback of less than 40 feet. Location of Property: 90 West Dr., Cutchogue; 1000-110-5-45. Garrett Strang, Architect. Appl. No. 5059 - JOSEPH AND BETH CASTRONOVO. This is a request for a Variance under the Zoning Code, Section 100-244, based on the Building Inspector's October 25, 2001 Notice of Disapproval. The applicants propose a second-story addition to the existing dwelling with a setback at less than 10 feet on one side (with a 23 ft. total for both side yards) and setback at less than 35 feet from the front property line. Location of Property: 250 Wesland Road, Southold; 1000-59-2-20. Cannella Associates, Arch. M 1 Y, .rJ Page 2-Agenda February 28, 2002 Public Hearings Southold Town Board of Appeals Appl. No. 5066 - POSILLICO CONSTRUCTION. This is a request for a Variance under Zoning Code Section 100-33 based on the Building Inspector's December 7, 2001 Notice of Disapproval. The applicant proposes to locate a garage in an area other than the required rear yard. Location of Property: 3040 Kerwin Boulevard, Greenport; 1000-53-4-44.35. (Also see possible Amended Notice of Disapproval for change in yard identification due to modified location of new dwelling closer to the front line.) Appl. No. 5054 - JOHN & PATRICIA STACK. This is a request for a Variance under Zoning Code Section 100-33 based on the Building Inspector's August 14, 2001 Notice of Disapproval. Applicants propose to relocate an accessory structure (shed)to a front yard area. This property has two front yards and two side yard designations. Section 100-33 requires a rear yard location. Location of Property: 7650 Nassau Pt. Rd., Cutchogue; 1000-118-3-4.1 Appl. No. 5056 -GEORGE S. CAMBOURAKIS. This is a request for a Variance under Zoning Code Section 100-244 based on the Building Inspector's November 16, 2001 Notice of Disapproval. The applicant proposes an additions and alterations to the existing dwelling with a front yard setback of less than 40 feet at 200 Cedar Drive, East Marion; 1000-22-1-3 and 4. Appl. No. 5060 - RUTH ANN BRAMSON. This is a request for a Variance under Zoning Code Section 100-30A.3 based on the Building Inspector's December 7, 2001 Notice of Disapproval. The applicant proposes additions and alterations to,the existing dwelling, and the building permit application was disapproved for the reason that the height is three stories instead of the Code limitation of 2-1/2 stories. Location of Property: 12042 Main Road, East Marion; 31-14-4.5. Patricia Moore, Esq. Appl. No. 5064 - MARY LEONARDI. This is a request for a Variance under Zoning Code Section 100-2448 based on the Building Inspector's December 5, 2001 Notice of Disapproval. The applicant proposes a new dwelling with a rear yard setback at less than fifty (50)feet. Location of Property: 1285 Reydon Dr., Southold; 80-2-15.1. Proper-T Services, Inc., agent. 111. PUBLIC HEARINGS: (Continued from prior meetings): 6:45 p.m. (Carryover from January Hearing) - Appl. No. 5034 - RUST FAMILY PARTNERSHIP. Interpretation and/or Relief for Addition with setback variances from front lot line and bulkhead, at 4680 Wunneweta Road, Cutchogue; 111-14-34. R. Lark, Esq. for the applicant; P. Moore, Esq. (for J. Cella). 7:15 p.m. Appl. No. 4927 - KACE LI, INC. (Carryover from January 24, 2002.) This is an Appeal requesting Reversal of the Building Inspector's Notice of Disapproval dated August 13, 2001, which disapproval denied an application for a building permit for two-family dwellings under Article IV, Section 100-42A.2. The reason stated in the Notice of Disapproval is that the proposed project indicates several two-family dwellings on a single parcel, and that the Code allows only one such structure per lot as a permitted use. Zone District: Hamlet-Density (HD). Location of Property: South Side of North Road or C.R. 48, 500+- feet east of Chapel Lane, Greenport; Parcel 40-3-1, now or formerly referred to as "Northwind Village" site. M. Pachman, Esq; A. Tohill, Esq. New application: 7:45 p.m. Appl. No. 5061 -CLIFF AND PHIL'S LOBSTER HOUSE/RESTAURANT. Based on the Page 3—Agenda February 28, 2002 Public Hearings Southold Town Board of Appeals I Building Department's Notice of Disapproval issued November 13, 2001, amended November 14, 2001, applicant is requesting: (a) an Interpretation under Article XXIV, Section 100-243 to Reverse the Building Department's determination which stated that the proposed addition/alteration to an existing restaurant establishment is not a permitted use in the residential R-40 District, or alternatively a Variance under Section 100-243A authorizing the proposed addition to the existing restaurant, a nonconforming use in a nonconforming building; and (b) a Variance under Section 100-244B to locate the proposed addition maintaining the same nonconforming setback at less than 35 feet from the front property line; and (b) a Variance under Section 100-244B for a total lot coverage in excess of the code limitation of twenty (20) percent of the total lot area. Zone District: R-40 Residential. Location of Property: Corner of the East Side of Kenney's Road and the south side of North Sea Drive, Southold; County Tax Map Parcel 1000-54- 5-22. George Tsunis, Esq. IV. OTHER POSSIBLE DELIBERATIONS/DECISIONS on the followinq applications: Pending Applications (from above hearings, if deemed appropriate by the Board at this time). V. RESOLUTIONS/UPDATES/OTHER: A. Other: Discussion regarding Inspections of Assigned Files in complete form for March calendars. V. EXECUTIVE SESSION (if any). APPEALS BOARD MEMBERSSouthold Town �® 53095 Main Road 1 Gerard P. Goehringer, Chairman � � Lydia A.Tortora co y P.O. Box 1179 George Horning Lbo- ® Southold,New York 11971-0959 t\\�v Ruth D. Oliva �, ®� ZBA Fax(631) 765-9064 Vincent Orlando 1 � Telephone(631)765-1809 http://southoldtown.northfork.net J BOARD OF APPEALS TOWN OF SOUTHOLD April 22, 2002 Fax 516-357-3333 George J. Tsunis, Esq. Rivkin Radler EAB Plaza Uniondale, NY 11556-0111 Re: Appl. No. 5051 —Cliff&Phil's Lobster House, Inc. Dear r. ms: This will confirm that during the February 28, 2002 hearing, the Board asked that the applicant proceed with an application to the Planning Board for its preliminary review and comments for parking and site plan. Please keep us posted so that we can establish a new date for the final hearing, which would be held about three weeks after we receive notice with the information requested. Also, the Board has received, and is reviewing, the revised site plan and floor plan layouts that were submitted on April 1, 2002. Thank you. Very truly yours, Gerard P. Goehrin er g / Chairman RIVKIN RADLER L L P 1330 NORTH DUTTON AVENUE EAB PLAZA 275 MADISONAVENUE SUITE 200 NEW YORK, NY 10015-1101 SANTA ROSA, CA 95401-4645 UNION DALE, NEW YORK 115515-0111 (212) 455-9555 (707) 525-5400 (516) 357-3000 THE ATRIUM FAX (516) 357-3333 47 MAPLE STREET•THIRD FLOOR www rl vkinradier com SUMMIT. NJ 07901-2505 (908) 606-2200 GEORGE J. TSUNIS PARTNER (516) 357-3214 george tsunis@rlvkln.com August 13, 2002 I Hon. Gerard Goehringer r�II-v Chairman Zoning Board of Appeals G Town of Southold 53095 Mair.Road Southold,NY 11971 / Attention: Linda or Paula Re: Cliff&Phil's Lobster House, ZBA#5D58, 41 Dear Mr. Goehringer: Sic 2 - ,s wk As you are aware,we represent Cliff and Phil's Lobster House in the above-captioned 4-0 T• matter. An application to the Planning Board has been filed and a pre-application meeting has been held. Inasmuch as we have completed the above-mentioned requirements,may yo r client schedule a final hearing on the above-captioned application. Very truly yours, RIVKIN RADLER LLP George J. Tsunis GJT/lg cc: Mr. Tike Rutkowski Cliff&Phil's Lobster House F TOCSOPENMUNISWI628753 i -�Tz 7-7 (olowl Vwx ';,al O-Z,q �' Ver / (Z(ZY i i t i i siXJ 6 1 I I , TOWN MEMO To: ( Building Department, Attn: ( ) Planning Board ( ) Other Town Department : From: Town ZBA Date: 2/ 102 Re: Attached Notice of Disapproval dated A1vy. 3 2 0I• U XI 1Yr✓•'4 Would you please furnish copies of the following information from your Town files regarding the proposed construction referred to the building permit application and referred to in the above Notice of Disapproval. This information is necessary to determine specific details in the area of relief that the applicant is being disapproved for. applying for at the next step of the building review process;. ( ) Map showing proposed construction; goo ( Calculations showing basis of percentage referred to ir�the above Notice of Disapproval with respect to the applicant's existing and proposed building areas (excluding step areas under 30 sq. ft., grade level patio areas, and allowing other exemptions under the Zoning Code. ( ) Review determination by the Building Department with respect to the setback from the ' and whether the zoning code provisions which may limit this new construction area is allowable under the zoning code. Thank you. The following space may be used for your reply, if convenient irk�cye�rle4ryrfcie�kYr** lr�c ilk REPLY MEMO: To. Town ZBAI r „n From: Building Departme t, by i Date: / 12002 Comments: 1 r a a Zoning Code: § 100-243. Nonconforming buildings with nonconforming uses. [Amended 10-19-1999 by L.L. No. 16-1999] A. A nonconforming building containing a nonconforming use shall not be enlarged, reconstructed or structurally altered or moved; except as set forth below, unless the use of such building is changed to a conforming use. (1) Nonresidential uses: (a) Nothing in this article shall be deemed .to prevent the remodeling, reconstruction or enlargement of a nonconforming or conforming nonresidential building with a nonconforming nonresidential use or construction of an addition to existing buildings or additional building on the premises, so long as;said increase in size of the buildings created by enlargement of the existing buildings or structures or by the construction of a new and separate building or structure does not result in an increase in the overall building footprint(s) of more than 15%, except that said increase shall not exceed the applicable maximum lot coverage. In addition, all other setback and area requirements shall apply. (b) Nothing in this article shall be deemed to prevent the remodeling, reconstruction or enlargement of a nonconforming or conforming nonresidential building with a nonconforming use or construction of an addition to existing building(s) or additional building on the premises, so long as said increase in size of the building(s) created by enlargement of the existing buildings or structures or by the construction of a new and separate building or structure does not result in an increase in the overall building footprint(s) of more than 30%, except that said increase shall not exceed the applicable maximum lot coverage, and all other setback and area requirements shall apply, provided that the following site remediation measures, in full or in part, as shall be determined by the Planning Board within its sole discretion, are included as an essential element of the aforesaid expansion: [1] Substantial enhancement of the overall site landscaping and/or natural vegetation. [2] Employment of best visual practices by,upgrades to existing building facades and/or design of new buildings and/or the additions to, existing buildings which accurately or more accurately depict the historic and/or existing rural character of the immediate and nearby neighborhood(s) B. A nonconforming building containing a nonconforming use which has been damaged by fire or other causes to the extent of more than 50% of its fair value shall not be repaired or rebuilt unless the use of such building is changed to a conforming use Last printed 2/13/02 8.48 AM I OFFICE OF BOARD OF APPEAOO 2'i ✓ Southold Town Hall 53095(wain Road Southold, NY 11971 765-1809 tel. 765-9064 ZBA fax. REPLY FORM Dated:TO: () Your application is incomplete for the reasons noted below. - (A It is requested that the following be forwarded as soon as possible (within about 7 days, if feasible). The advertising deadline is 22 days before the meeting date and the information is necessary for review and advertising purposes. You may forward the information by fax at 765- 9064, however, please send the original by mail. Thank you. ( ) The appeal was not filed within 60 days of the decision of the Building Inspector. Missing information -please see missing information checked below. Please submit all the documentation, together with information noted below. If you have any questions, please call us at 765-1809. Thank you. Information requested: ( ) Notice of Disapproval issued by the Building Inspector after his/her review of this particular project map. ( ) Check payable to the Town of Southold totaling $ ( ) Signature and notary public information are needed. An original and six prints of the map were not included/(Prepare r's name and dates of prepfiration to be shown.) �L J Setbacks must be shown for the subject building to all property lines, with preparer's name, V) Six(6) sets of a4ia ram showing the doors, number of stories, and average height (from natural grade)) ( ) Ownership Search back to April 23, 1957 for the subject parcel and all adjoining parcels, certified by a title insurance company, and insuring the Town for$25,000. ( ) Copies of all current deeds and tax bills of the parcels back to Other: 6 ww� s') w��� "U 11-kO41 � u4exis+ Cx� � �.....�-✓H-t-o�-c-a"r� �G �B ,(�n) C.6Ti- o`+-�c-tc.,�C,�Y� �"6L �L. /w� LY c Y- FEB v 3 Date: February 13, 2002 Zoning,13oar&of Appeals Main Roaq Southold,"'New York 11971 Re: Site Plans Here are the requested six copies of the see'plal�, cu,--r'r'-e,-n-t survey, building elevation, floor plan, pictures and seating capacity for Elbow East. Thank Y T. Rutkowski Elbow East WILLIAM C. GOGGINS ATTORNEYAND COUNSELOR AT LAW P.O.Box 65 13105 Main Road Mattituck,New York 11952 Phone(631)298-4200 Fax(63 i)298-4214 WILLIAM C.GOGGINS March 26, 2002 DONNA M.PALMER Paralegal Town of Southold 53095 Main Road Southold, New York 11971 Re: Cliff's Elbow Room Inc., the Elbow Room Too Franklinville Road, Laurel, New York 11948 Dear Sir/Madam: Please be advised that the above referenced restaurant is renewing its liquor license. Enclosed please find the notice form. Thank you. Very ruly yours, illi ggins WCG/bh enclosure Via Certified Mail No. 7001 1940 0002 6673 6181 03/06/2002 06.: 19 _5168043000 ISLAND WIDE L.I(' ,VCE PAGE 14 CC : Town Board Town Attorney Police Dept. Fire Marshal ZBA Planning Board Town of Southold 3 /25 / 02 53095 Main Road RECEIVED Southold, New York 11971 MAR 2 6 2002 Southold Town Clerk To whom it may concern., iClif ford F. Saunders Wireby male notification pursuant to section 64, SUN. 2a of the NY State Alcoholic Beverage Control law that I will be filing with the State Liquor Authority>= renewal application for an on-premises .retail license to Sell Alcohol---- . (Ke?v6pvAC 4ppj-icA"noA;) The application-will. be filed under Cliff' s Elbow Room Inc. of which I am the principal owner, for the premises located at The Elbow Room Too, Franklinville Road Laurel .New York If any finther information is required, please contact mat my attorney at 13105 Main Roajd, Mattituck, NY 11952 631-298-4200 . Yo r 1LU , � CliPtord F. Saunders , III FES -13',',200? 5 : 41 PM FR TO 9 1 63 1 7659064 P . 02 i ) Y RIVKIN o RADLER 1330 NORTH DUTTON AVENUE EAB PLAZA 379 MAC190N AvCNUE NEW YORK, Nr 10010.1101 SUITe 200 UNION®AL-E, 'NEW YORK 115545-0111 (ale) 4S9.91155 SANTA R09A, CA 95401-4046 LToy1 �aay400 ('5145) 357-3000 THC ATRIUM FAX(516) 357-3333 47 MAPLE STRG6T .TMIRO 1'60OR WWW.rlvkinredier.com SUMMIT. NJ 07901'21103 (9051 tS06-2400 GSORGE J. YsUNIS c /�d "//`4/02-) PARTNER (51 (516)357.3214 george.tsvnia(Mmkin.com February 13, 2002 1 VIAT LEC�P'Y Hon. Gerard Goehringer Chairman Zoning Board of Appeals Town of Southold 53095 Main Road Southold,NY 11971 Attention: Linda or Paula Re: Cliff&Phil's Lobster House ZBA 0508 Dear Mr. Goehringer: We•represent:Cliffand.Phil's-I.,obster,House in,the'above-captioned;,,matter:, Ivis.our intention to expand and renovate an existing 2,780 square foot restaurant by an additiond-1,31 I square feet. This expansion and renovation is necessary to the viability of the entity in light of ADA mandates as well as new Suffolk County,anti-smoking legislation. In essence,we respectfully request that the Zoning Board of Appeals overrule the Building Department's "Notice of Disapproval"requiring us-to,seek a use variance. It is our contention that Town Law 267(b)(1)grants the Zoning Board of Appeals great powers and discretion to interpret their respective municipalities' zoning code. Clearly,our client cannot provide new ADA compliant bathrooms as well as enclosing,a new.smoking area in an effort to protect patrons from second- hand econdhand smoke,thereby complying with the respective legislation. Since the expansion is for the purposes of compliance and-,speaks to the general welfare and safety of the public,we feel the - Zoning Board is empowered to grant such appropriate relief by overruling the Building Department's determination,thus allowing my client his desired expansion and renovation and negating the need for a use variance. FE.B 1 3:2002 5 : 41 PM FR TO 916317659064 P . 03 RIVK#N L V P RADLER Hon* Gerard Goehringer February 13, 2002 Page 2 In the alternative,we will also make an application for a use variance and provide the necessary proofs that we meet the criteria as set forth in Town Law 267(b)(2)and the Town of Southold zoning code. Very truly yours, RIVKIN RA,DLER LLP George J.Tsunis OJT/nl F3)=0PWT8UXM1585$20 vi a CUff&FxWGo rozR as FE)3 1 3 2002 5 : 41 PM FR T"� 9 163 1 765906A--�'- P . 01 RIVKIN KX L V is RADLER EAS PLAZA UNIONDAL�� NEW 6) 357®3000RK 11556-0111 FAX (516) 357-3333 www.rivkinradler.com 7 FAX COYER MEMO TO: Hon, Gerard Goehringer FIRM NAME. Zoning-Board of Appeals—Town of Southold FAX* 631-7659064 PHONE* CITY: Southold FROM: George Tsunis, Esq. DATE: February 13, 2002 RE: Cliff& Phil's Lobster House, ZBA#5058 FILE#: 700778-1 COMMENTS: See attached letter. 2 PAGE (S) TO FOLLOW IF THERE ARE ANY PROBLEMS CONCERNING THE TRANSMISSION OF THIS MATERIAL, PLEASE CALL: FAX DEPARTMENT: (516) 357-3392 THANK YOU. RETURN TO: George J. Tsunis, Esq. Room #: 1004 Rxxxxxxx*WWWWWWMW1xRRRRRxR***WWWWW4xxRtRxxRR***WWWWWMW4W4NRRRRRRxR**W*WWWWWpWwxtxxxRxxx*A*WWWWWWWMdWtttRRxRxtxRxR*WWWWWf6 Confidentiality Note The documents accompanying this telecopy transmission contain information which is confidential or privileged. The information is intended to be for the use of the individual or entity named on this transmission sheet. If you are not the intended recipient, be aware that any disclosure,copying,distribution or use of the contents of this telecopied information is prohibited. WWW*4WW44RRRRRRRxRRRRR'NMW'yWVtxRRRYRRxxRxRRWW'�'WW44W4xtxRQRRRxx+RRRR**WS"�'W4W4tDWRRxRRRRx*R***WWWW4.YWW4}x+tRRxxxRxxxxx*WWWW44Rx F:1D0CSOFF%1\TSUNjSV11585851 V1-GOEfIRNNGERFAXFORM I I APPr-ALS BOARD MEMBERS O�OSVFFO(�C� Southold Town Hall Gerard P. Goehringer, Chairman �� Gy� 53095 Main Road Lydia A.Tortora c P.O. Box 1179 Ggorge Horning - • Southold,New York 11971-0959 l\� -Ruth D. OlivaO� ZBA Fax(631) 765-9064 Vincent Orlando �o.( �a Telephone(631) 765-1809 http://southoldtown.northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD April 22, 2002 Patricia C. Moore, Esq. 51020 Main Road Southold, NY 11971 Re: Appl. No. 5051 —Cliff&Phil's Lobster House, Inc. Dear�4- � Or We have reviewed the above file, prior to establishing a new public hearing date, and we note that a Notice of Appearance was not made available by your office. Would you please furnish us with a Notice of Appearance. Thank you. Very truly yours, Gerard P. Goehringer Chairman q, J v APPEALS BOARD MEMBERS ®� Southold Town Hall Gerard P. Goehringer, Chairman �� 53095 Main Road Lydia A. Tortora cz co P O. Box 1179 George Horning 1 ® Southold,New York 11971-0959 Ruth D. Oliva � � ZBA Fax (631) 765-9064 Vincent Orlando Telephone (631) 765-1809 http://southoldtown northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD 2/14; 2/20; upd. 2/27 4:30 p.m. AGENDA SOUTHOLD TOWN BOARD OF APPEALS THURSDAY, FEBRUARY 28, 2002 6:30 p.m. Call to Order by Chairman. I. STATE ENVIRONMENTAL QUALITY(SEQRA) REVIEWS/RESOLUTION (none at this time) II. POSSIBLE DELIBERATIONS/DECISIONS (carrvovers from prior calendar): Appl. No. 5063 VICTOR RUTKOWSKI. This is a request for a Variance under Zoning Code Section 100-244B based on the Building Inspector's November 30, 2001 Notice of Disapproval. The applicant proposes an addition to the existing dwelling with a front yard setback of less than 40 feet. Location of Property: 340 Theresa Drive, Mattituck; Parcel 115-13-22. Appl. No. 5055 -VINCENT O'NEILL— This is a request for a Variance under Zoning Code Section 100-244B based on the Building Inspector's May 1, 2001 Notice of Disapproval. The applicant is requesting approval of the location of an existing (deck) addition with a side yard setback of less than 15 `feet. Location of Property: 3500 Cox Neck Road, Mattituck; Parcel 113-8-1. Appl. No. 5067 — CHRISTOPHER and IRENE VITTI. This is a request for a Variance under Zoning Code Section 100-30A.3 based on the Building Inspector's December 4, 2001 Notice of Disapproval. The applicant proposes additions and alterations to the existing dwelling with a rear yard setback of less than 50 feet. Location of Property: 11805 Soundview Avenue, Southold; 54-5-45.9. Appl. No. 5070—ART SAFALOW. This is a request for a Variance under Zoning Code Section 100- 33 based on the Building Inspector's December 21, 2001 Notice of Disapproval. The applicant proposes to locate a garage partly in the front and side yards, rather than a rear yard. Location of Property: 737 Old Wood Path, Southold; 87-1-23.4. Appl. No. 5062 -JOHN &ANNEMARIE CURTIN. This is a request for a Variance under the Zoning Code, Section 100-244B, based on the Building Inspector's November 27, 2001 Notice of Disapproval. The applicants propose additions and alterations to dwelling with a setback at less than 35 feet from the front property line. Location of Property: 745 East Road, Cutchogue; 110-06-13. Thomas Heine, Architect. Appl. No. 5057 - DAVID & TRISH HOWE. This is a request for a Variance under Zoning Code, Section 100-242A based on the Building 'Inspector's November 16, 2001 Notice of Disapproval. The applicant proposes an addition and alterations to the existing dwelling with a front yard setback of less than 40 feet. Location of Property: 90 West Dr., Cutchogue; 1000-110-5-45. Garrett Strang,,Architect. Appl. No. 5059 - JOSEPH AND BETH CASTRONOVO. This is a request for a Variance under the Zoning Code, Section 100-244, based on the Building Inspector's October 25, 2001 Notice of Disapproval. The applicants propose a second-story addition to the existing dwelling with a setback at less than 10 feet on one side (with a 23 ft. total for both side yards) and setback at less than 35 feet from the front property line. Location of Property: 250 Wesland Road, Southold; 1000-59-2-20. Cannella Associates, Arch. r Page 2-Agenda February 28, 2002 Public Hearings Southold Town Board of Appeals Appl. No. 5066 - POSILLICO CONSTRUCTION. This is a request for a Variance under Zoning Code Section 100-33 based on the Building Inspector's December 7, 2001 Notice of Disapproval. The applicant proposes to locate a garage in an area other than the required rear yard. Location of Property: 3040 Kerwin Boulevard, Greenport; 1000-53-4-44.35. (Also see possible Amended Notice of Disapproval for change in yard identification due to modified location of new dwelling closer to the front line.) Appl. No. 5054 - JOHN & PATRICIA STACK. This is a request for a Variance under Zoning Code Section 100-33 based on the Building Inspector's August 14, 2001 Notice of Disapproval. Applicants propose to relocate an accessory structure (shed)to a front yard area. This property has two front yards and two side yard designations. Section 100-33 requires a rear yard location. Location of Property: 7650 Nassau Pt. Rd., Cutchogue; 1000-118-3-4.1 Appl. No. 5056 - GEORGE S. CAMBOURAKIS. This is a request for a Variance under Zoning Code Section 100-244 based on the Building Inspector's November 16, 2001 Notice of Disapproval. The applicant proposes an additions and alterations to the existing dwelling with a front yard setback of less than 40 feet at 200 Cedar Drive, East Marion; 1000-22-1-3 and 4. Appl. No. 5060 - RUTH ANN BRAMSON. This is a request for a Variance under Zoning Code Section 100-30A.3 based on the Building Inspector's December 7, 2001 Notice of Disapproval. The applicant proposes additions and alterations to the existing dwelling, and the building permit application was disapproved for the reason that the height is three stories instead of the Code limitation of 2-1/2 stories. Location of Property: 12042 Main Road, East Marion; 31-14-4.5. Patricia Moore, Esq. Appl. No. 5064 - MARY LEONARDI. This is a request for a Variance under Zoning Code Section 100-244B based on the Building Inspector's December 5, 2001 Notice of Disapproval. The applicant proposes a new dwelling with a rear yard setback at less than fifty (50)feet. Location of Property: 1285 Reydon Dr., Southold; 80-2-15.1. Proper-T Services, Inc., agent. III. PUBLIC HEARINGS: (Continued from prior meetings): 6:45 p.m. (Carryover from January Hearing) - Appl. No. 5034 - RUST FAMILY PARTNERSHIP. Interpretation and/or Relief for Addition with setback variances from front lot line and bulkhead, at 4680 Wunneweta Road, Cutchogue; 111-14-34. R. Lark, Esq. for the applicant; P. Moore, Esq. (for J. Cella). 7:15 p.m. Appl. No. 4927 - KACE LI, INC. (Carryover from January 24, 2002.) This is an Appeal requesting Reversal of the Building Inspector's Notice of Disapproval dated August 13, 2001, which disapproval denied an application for a building permit for two-family dwellings under Article IV, Section 100-42A.2. The reason stated in the Notice of Disapproval is that the proposed project indicates several two-family dwellings on a single parcel, and that the Code allows only one such structure per lot as a permitted use. Zone District: Hamlet-Density (HD). Location of Property: South Side of North Road or C.R. 48, 500+- feet east of Chapel Lane, Greenport; Parcel 40-3-1, now or formerly referred to. as "Northwind Village" site. M. Pachman, Esq; A. Tohill, Esq. New application: 7:45 p.m. Appl. No. 5051 -CLIFF AND PHIL'S LOBSTER HOUSE/RESTAURANT. Based on the Page 3—Agenda February 28, 2002 Public Hearings Southold Town Board of Appeals Building Department's Notice of Disapproval issued November 13, 2001, amended November 14, 2001, applicant is requesting: (a) an Interpretation under Article XXIV, Section 100-243 to Reverse the Building Department's determination which stated that the proposed addition/alteration to an existing restaurant establishment is not a permitted use in the residential R-40 District, or alternatively a Variance under Section 100-243A authorizing the proposed addition to the existing restaurant, a nonconforming use in a nonconforming building; and (b) a Variance under Section 100-2448 to locate the proposed addition maintaining the same nonconforming setback at less than 35 feet from the front property line; and (b) a Variance under Section 100-244B for a total lot coverage in excess of the code limitation of twenty (20) percent of the total lot area. Zone District: R-40 Residential. Location of Property: Corner of the East Side of Kenney's Road and the south side of North Sea Drive, Southold; County Tax Map Parcel 1000-54- 5-22. George Tsunis, Esq. IV. OTHER POSSIBLE DELIBERATIONS/DECISIONS on the POSSIBLE DELIBERATIONS/DECISIONS on the followingapplications: Pending Applications (from above hearings, if deemed appropriate by the Board at this time). V. RESOLUTIONS/UPDATES/OTHER: A. Other: Discussion regarding Inspections of Assigned Files in complete form for March calendars. V. EXECUTIVE SESSION (if any). 40 OFFICE OF BOARD OF APPEALS Southold Town Ball 53095 Main Road Southold, NY 11971 Town Ext. 224, 223, 225 TOWN MEMORANDUM TO: Ben Orlowski, Chairman, Planning Board FROM: Jerry Goehringer, Chairman, Zoning Board of Appeals DATE: -b e,-Jt-, 2001 SUBS: Pending Application Reviews ��- Please find attached a copy of the list of ZBA pending applications calendared for public hearings to be held on .2 /al /2001. The Board requests that comments or recommendations be submitted prior to the close of the written portion of the record (or hearing date noted on the attached Notice). Your reply on the joint application reviews is appreciated and will be made a permanent part of the ZBA record in this review process. Thank you. Enclosure . 4 ------------- NOTIFICATION RIDER TO RENEWAL APPLICATION ON PREMISES LICENSEES ONLY MUST COMPLETE THIS SECTION NOTICE TO MUNICIPALITYICOIAMUNITY BOARD You are required by the Alcoholic Beverage Control Law,Section 64,Subdivision 2a,up m receipt of a renewal application for a license to sell alcoholic beverages at retail for consumption an the premises,to promptly notify,irf writing,the CI grk of the Village,Town or City wherein the premises are located of your application to the State Liquor Authvnty not less than thirty days prior to the submission 3f your application to the Authority. In the City of New York,such notification is to be sent to the community board with jurisdiction over the area in which t ie premises is located. Notification pursuant to this Section is.io be sent by certified mail,return receipt requested. You must keep the certified mail rece pt for your records. CERTIFICATION RIDER TO APPLICATIONS _ \= (circle oris)o trereby certi- that-hhave,=mp!j,ed wittrttwTequtremenis of-SeCtiow'64,'-gabdivisic n-2a of-th0 lcoToiio eve� _ ontrol"Law;and,have writ noiification of my' ren wai application to become licensed,by certified mail;return recefpf�requested to the Clerk of the Tow V!Ila Gity ge f where the , or,in New York City,the Clerk of Community Board# Borough of -- premises are located. W- eyt--5 i Trade Name Address of Premise ature License Number Date , NOTE: FAILURE TO NOTIFY THE APPROPRIATE MUNICIPALITY OR COMMUNITY BOARD AT LEAST THIRTY(30)DAYS PRIOR TO THE SUBMISSION OF YOUR APPLICATION OR REN=WAL MAY RESULT IN A DELAY IN PROCESSING YOUR APPLICATION. You must keep the certified mad receipt for your records! Form#1016 SLA(Revised 0412001) CC: Town Board RECEIVED Town Attorney Police Dept. Fire Marshal MAR 1 5 2002 z B A Planning Board Southold Town Clerk op 5979 3764 7DD1 251D ODD2 _ _ _ - m o� "ll"11►► C ro V, • C7�-� �I.JV�� I `�O s vi 0 v� 930��!9�00 S9 - ,� -- - -_ oa� G•L�o'L,c' cam, '�� �o f• �E Z t C � • S a� 7-, 26 �G ¢ g0 40 —"Wet � FORM NO. 3 i NOTICE OF DISAPPROVAL DATE: November 14, 2001 TO: Elbow East Amended: Febru�my 13,.2002 PO Box 985 ' :"~ ;r • Southold,NY 11971 FEB e 3. Please take notice that your application dated November 6, 2001 For permit to make additions/alterations to an existing restaurant at Location of property 50 North Sea Drive, Southold, County Tax Map No. 1000 - Section 54 Block 5 Lot 22 Is returned herewith and disapproved on the following grounds: i The proposed addition/alteration to a non-conforming building with non-conforming use on a 21,932 { square foot lot in the R-40 District, is not permitted pursuant to Article XXIV Section 100-243A.1 which states; "Nothing in this article shall be deemed to prevent the remodeling, reconstructioor enlargement of a nonconforming or conforming nonresidential building with a nonconfo g nonresidential use or construction of an addition to existing buildings or additional buil on the premises, so long as said increase in size of the buildings created by_enlargemen of the existing buildings or structures or by the construction of a new and separate building or structure does not result in an increase in the overall building footprint(s) of more than 15%, except that said increase shall not exceed the applicable maximum lot coverage. In addition, all other setback and area requirements shall apply." The existing footprint of the existing building is +/-2,780 square feet and the proposed addition is noted as being+/-1,311, an approximate increase of 48erp cent. .-A restaurant is not a permitted use in the residential R-40 district pursuant to Article IIISection 100- 31A. In addition, the proposed addition to an existing non-conforming building notes a front yard setback of twenty-one (21) feet, maintaining the existing front yard setback and a total lot coverage of 21.5 percent. Therefore, the proposed addition/alteration is not permitted pursuant to Article XXVI Section 100-244 which states that non-confoirning lots less than 20,000 square feet in total size require a front yard setback of thirty-five (35) feet and a total coverageerp cent. Authorized Signature CC: file, Z.B.A. f • i .��c1R►i���,n Fop ,r�oU�LGS Ea9s�oL17� G,vo pduL r�d�c./oE,4LaS�� - Paop��zjY L oce �v 47 .cuTyoL,O ToWit_I of 50417-01.p r SL/�FoL A::' CotJ.vT�% A-1-=k<1 �oRK do l�ISEIRR 00Wjfty ✓�N! (516)-727-4455 TITLE A8r x-600 r2T � o , 61oaf _ ' X39 PoZ F, •.,. Unaethcrrud aihrHien or addifien to this survey Is • vieletiow sf Seclson 7209 of the Now yor► S1ate Education taw. Ceples of fhrs survey snap not bearing the bend Surveyors In►ed q aN- ar o: embesied seal gAatl not be toare sided to be • valid ♦rye copy. 6wranfees or ee.Kfiutions indicated hereon shill con only Old arson for whom the survey is prsperad,and on Fig "hell to 8 �. A,, h 6 company. governmental agency and lending ®natitufion beroon, and to the assignees of the lending Insfitution• V\ /ID�•" 6Yt•anfees or evcations are net transferable to addrtione! (� \ insfifvricns er ►vbS64segw7l owners. � �vdr� Ev 7z>: .\eL90 I—A la �d JL c jc©,qo T,rL�•- S, O� 1065 1 ti ,.m- -- ELIZABETH A.NEVILLE Town Hall, 53095 Main Road TOWN CLERK C P.O. Box 1179 REGISTRAR OF VITAL STATISTICS H Z Southold, New York 11971 MARRIAGE OFFICER OGEMENT OFFICERCL �` Fax(631) 765-6145 RECORDS FREEDOM OF INFORMATION IOFFICER y_7®.( � ��®� Telephone (631) 765-1800 southoldtown.northfork.net OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD TO: Southold Town Zoning Board of Appeals FROM: Elizabeth A. Neville DATED: November 26, 2001 RE: Zoning Appeal No. 5051 Transmitted herewith is Zoning Appeals No. 5051 —Katherine Rutkowski -Zoning Board of Appeals application for variance. Also included is ZBA Questionnaire,NYS Short Environmental Form, Applicant Transactional Disclosure Form,Notice of Disapproval, and a stie plan. REASONS FOR USE VARIANCE: 1) Lack of"ADA" access has and will affect present and future business (winter and summer months). 2) Only business in area ---- (Zoning change) 3) Mentioned ----we are a good neighbor to the surrounding neighborhood and community. 4) NO 5) We have carefully calculated the minimum needed to create this small expansion and feel that this falls within the much- considered expansion that we desperately have to have to exist. a) Parking is 40 spaces and has no effect on the expansion. b) Not going up with second floor. c) Going out minimally. d) Not changing hours of operation. e) Overall square footage of expansion. t V, 1V QUESTIONNAIRE FOR FILING WITH' YOUR Z.B.A. APPLICATION A. Please disclose the names of the owner(s) and any other individuals (and entities) having a financial interest in the subject premises and a description of their' inte=ests: (Separate sheet ma be attached. ) B. Is the subject premises listed on the real estate market for = sale or being shown to prospective buyers? { } Yes {yy} No. (If-Yes, please attach copy of "conditions" of sale. ) C. Are there any proposals to change or alter land contours? { } Yes- >G} No D. 1. Are there any areas which contain wetland grasses? H 0 2. Are the wetland areas shown on the map submitted with this application? Ny 3 . Is the property bul1kheaded between the wetlands area and the upland building area? f-J.'O _ 4. If your property contains wetlands or pond areas, have you contacted the Office of the Town Trus tees f or its �,..iba of j determ na' urisdiction? _T410 _ E. Is there a depression or sloping elevation near the area of proposed construction at or below five feat above mean sea level? (If not applicable, state "N.A. ") F. Are there any patios, concrete barriers, bulkheads or fences which exist and are not shown on the survey map that you are submitting? 0 h{1C If none exist, please state "none." G. Do you have any construction taking place at this time concerning your premises? NLD If yes, please submit a copy of your building permit and map as approved by the Building Department. If none, please state. H. Do you or any co-owner also own other land close to this parcel? N 0 If yes, please explain where or submit copies of deeds. I. Please list present use or operations conducted at this parcel and proposed use Reqs Authorized Signature and. Date . 3/87, 10/9OIk ^ ! 7` I 146.16.4 f21871—Text 12 PROJECT I.D.NUMBER i 617.21 S Q F Appendix C State Environmental Quality Review SHORT ENVIRONMENTAL ASSESSMENT FORM For UNLISTED ACTIONS Only PART 1—PROJECT INFORMATION (To be completed by Applicant or Project sponsoo rLOCAT !ICA ONSO�i I- j� ECT NAMI 1 TION: O t� H tJ L_O County ION(Street address and road Mteraectlons,prominent landmarks,etc,or provide maplms- oFIke,l� J NA . SED A ON: w xpanslon ❑Modlfleatlonfalterstion 6. OESCRIBE PROJECT BRIEFLY: 1 D. oa--r Eorr F�4 s o,y o >Lx.'sz-i-y4s fees-r.4c r4v-e f11AMOUNT OF LANG AFFECTED; tially acres Ultimately L PROPCJLA I*N COMPLY WITH EXISTING ZONING OR OTHER EXISTINGacres -ANO USE RESTRICTIONS? Yes o It No,describe briefty AT IS PRESENT LAND USE IN VICINITY OF PROJECT? esidenllal Industrial ❑Commercial esenbe: Agriculture park/Forest/Opan space ❑Other 10. DOES ACTION INVOLVE A PERMIT APPROVAL OR FUNDING.NOW OR ULTIMATELY FROM ANY OTHER GOVERNMENTAL AGENCY IFEDErRA STATE OR LOCALI? L.:Yea p It yea,list agency(s)and parmrt/approyals 11. DOES ANY ASP CT OF THE ACTIZU HAVE A CURRENTLY VALIO PERMIT OR APPROVAL? ❑Yea . if yet,lis(agency name and permiUapproval I _ 12. AS A RESUL�10JFROPOSED ACTION WILL EXISTING PERMITIAPPROVAL REOUIRE MODIFICATION? yes I CERTIFY THAT THE INFORMATION PROVIDED ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE ADplieanUsponsor name; `�`�L+'E21�.� E Q�,,�--C ��S �1 �5 O Cate: Signaluro; - Vha_4 P- � U the action is in the Coastal Area, and you are a state agency, Complete the Coastal Assessment Form before proceeding with this assessment OVER 1 • APPLICANT TRANSACTIONAL DISCLOSURE FORK The Town of Southold ' s Code of Ethics 2rohibits conflicts of interest on the parL of town officers and em to ees. The Purpose of this form is to provide information which can alert the town of Dossible conflicts of interest and allow it to take whatever action is necessar to avoid same. YOUR NAME: (Last name , first name , Imiddle initial , unless you are applying in the name of someone else or other entity, such as a company. If so, indicate the other person ' s or company ' s name. ) NATURE OF APPLICATION: (Check all that apply, ) Tax grievance Variance Change of zone Approval of plat Exemption from plat or official map OL-her (If "Other, " name the activity. ) parent, or child) have a relationship vith any office,Do you personally (or through your company, 'spouse, sibling, or employee of the Town of Southold? "Relationship" includes by blood, marriage, or business interest. "Business interest" means a business, 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 the shares. YES _! NO F i Tf you answered � "YES. ". complete the balance of this form and date and sign inhere indicated. Name of person employed by the Town of Southold Title ox position of that person uT q•�H� W00�+ Describe the relationship between yourself ( the applicant ! and the town officer or employee. Either check the ) 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 the shares of the corporate stock of the applica is a corporation) • nt (when the applicant B) the legal or beneficial owner of any interest in a noncorporate entity (when the applicant is not a corporation) ; C) an officer, director_ , partner, or employee of the applicants or D) the actual applicant . DESCRIPTION OF RELATIONSTIIP Submitted this 1 3 day of Signature -�(� _ (2�s U 1 Print- name f For'Office Use Only: J . _ .� Y� Fee$ �(J%y� 11-/to -©I Assigned No.,j�0,5/ " TOWN OF SOUTHOLD, NEW YORK APPEAL FROM DECISION OF BUILDING INSPECTOR / DATE OF BUILDING INSPECTOR'S DECISION APPEALED: ............ . ,3 'TO THE ZONING BOARD OF APPEALS: 'I (We) ., !R,I.H �IJ:IE.. ..u:T!C�1.�, !=............ (Appella t OLD /19-7/ of..0 t.��'C. ..1.!�tl 5...!-:52` rL .se .c Bo$ . (Tel # X31 - . ......�. ....4... .. HEREBY APPEAL THE DECISION OF THE BUILDING INSPECTOR DATED ........................ WHEREBY THE BUILDING INSPECTOR'DENIED AN APPLICATION DATED....................... FOR: too Permit to Build ( ) Permit for Occupancy ( ) Permit to Use ( ) Permit for As-Built ( ) Other: I 1. Location of Proper�ty.c.Q.f?-!:1.�!Z...®:�. I�!:I � :n� E, 4_.p Zon District 1000 Secfion..%5.Y..Block.W Lots Z 0 ......Current Owne;d:#;r*:�,��,"� 2. Provision of the.Zoning Ordinance Appealed. (Indicate Article, Suction, Subsection and paragraph of Zoning Ordnance by numbers. Do not quote the law.) ArticleW.J.V!. Section 100- AY.3..Sub-Section .............. i o-r�` Lc9-r cove-V Xn l v I, .41 .2y,9 3. Type of Appeal. Appeal is made herewith for: A Variance to the Zoning Ordinance or Zoning Map ( ) A Variance due to lack of access as required by New York Town Law Chap. 62, Cons. Laws Art. 16, Section 280-A. ( ) Interpretation of Article .......... Section 100- .................. ( ) Reversal or Other: ................................................................................................ 4. Previous Appeal. A previous appeal (lid. has not) een made with respect to this property or with respect to this decision of the Building Inspector(Appeal #...... Year .......). REASONS FOR APPEAL (Additional sheets may be used with amlicant's signature) AREA VARIANCE REASONS.- (1) EASONS.(1) An undesirable .,hange will not be produced In the CHARACTER of the neighborhood or a detriment to n. -.r by properties, if granted, because: OWN (2) The benefit souW'jt by the applicant CANNOT be achieved by some method feasible for the applicant to pursue, other than an a ea variance, because: (3) The amount of relief re€1k sted is not substantial be ause: (4) The variance will NOT have an adverse effect or Impact on the physical o environmental conditions in =e neighborhood or district because: 5 (5) Has the alleged difficult lbeen self-created? ( ) Yes, or �No. This is the MINIMUM that is r'itocessary and adequate, and at the same time preserve and protect the character of th& neighborhood and the health, safety, and welfare of the community. heck this box if USE VARLANCE STANDARDS are completed and attached. ttached. S(,cam L9 P Sworn to before me this (Signature of A ` 13 d of . ppellant or Authorized Agent) 2001 . (Agent must submit Authorization from Owner) , ZBA App 08/00 Notary Public SARAH E.KETTRIC;K, Notary Public State of NirwYork No 0110E60$1297, Qualified in - }"; term eKoirasj Appeal Application, Continued BOARD OF APPEALS: TOWN OF SOUTHOLD COUNTY OF SUFFOLK:STATE OF NEW YORK ---------------------------------------------------x t . rrrr I t( Application of C�.ltt.A.�c .�...!��5�:�!+iv�-, � , Appeal Application (Continued) Property ID# ........................................ REASONS FOR USE VARIANCE ---------------------------------------------------x Continuation of Appeal Application for a Use Variance (when applicable): For Each and Every Permitted Use under the Zoning Regulations for the Particular District Where the Proiect is Located (please consult your attorney before completing): (1) The applicant CANNOT realize a REASONABLE RETURN because: (2)The HARDSHIP relates to the property and does not apply to a substantial portion of the district or neighborhood because: (3) The relief requested will not alter the essential CHARACTER of the neighborhood because: (4) Has the alleged difficulty been self-created? ( ) Yes, orNo. (5)This is the MINIMUM that is necessary and adequate,rand at the same time will preserve and protect the character of the neighborhood and the health, safety, and welfare of the community because: d (6) The spirit of the zoning ordinance will be observed. P (7) The public safety and welfare will be secured and substantial justice done. Yel-S (Signature of Appellant or Authorized Agent) Sworn to before me this 1 3 day of�. . .............. 200/ . 2 (Notary Public) SARAN E KE"MCK Notary Publk,b�tate of NOW Y� QualNified in Suit Amy Term Expires June 3, o00 ZBA App 08/00 1 REASONS FOR USE VARIANCE: 1) Lack of"ADA" access has and will affect present and future business (winter and summer months). 2) Only business in area ---- (Zoning change) 3) Mentioned ----we are a good neighbor to the surrounding neighborhood and community. 4) NO 5) We have carefully calculated the minimum needed to create this small expansion and feel that this falls within the much- considered expansion that we desperately have to have to exist. a) Parking is 40 spaces and has no effect on the expansion. b) Not going up with second floor. c) Going out minimally. d) Not changing hours of operation. e) Overall square footage of expansion. BO--.�,'DF HEALTH . . . . . . . . . . . . . . . Q r- FORM NO. 1 3 SETS OF PLANS . . . . . . .. . . . . . . . � yy� TOWN OF SOUTHOLD SURVEY L2M NOV " 8 BUILDING DEPARTMENT CHECK .. .. ... . . . . .. . . . .. . . . . . . . . TOWN HALL SEPTIC FORM . . . . . . . . . . . . . . . . . . . : ; BLDG.DEPT. SOUTHOLD, N.Y. 11971 DEC TRUSTEES- .. ......... .... . ... . . . .mvm i4 F TEL: 765-1802 . .. .... . ......... .. ... -- NOTIFY. CALL Examined.................. MAIL TO: . . . . . . . . . . . . . . . . . . . . Approved.................. .... Permit No. ................ ................................... Disapproved a/c .................................. ................................... ...................................................... ................................ 4 (Building Inspector) 4 " APPLICATION FOR BUILDING PERMIT Date. . . //./.o . . . . . , PGA9f INSTRUCTIONS a. Tris application must be completely filled in by typewriter or in ink and submitted to the Building Inspector wi 3 sets of plans, accurate plot plan to scale. Fee according to schedule. b- Plot plan showing location of lot and of buildings on premises, relationship to adjoining premises or public stf--ets or areas, and giving a detailed description of layout of property must be drawn on the diagram which is part of this application. c. The work covered by this application may not be commenced before issuance of Building Permit. d. Upon approval of this application, the Building Inspector will issue a Building Permit to the applicant. Such permit shall be kept on the premises available for inspection throughout the work. e. No building shall be occupied or used in whole or in part for any purpose whatever until a Certificate of Occupancy shall have been granted by the Building Inspector- ". APPLICATION IS BMW MARL to the Building Department for the issuance of a Building Permit pursuant to the Building Zone Ordinance of the Town of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations, for the construction of buildings, additions or alterations, or for removal or demolition, as herein described. The applicant agrees to comply with all applicable laws, ordinances, building code, housing code, and regulations, and to admit authorized inspectors on premises and in building for necessary inspections. jj ..F�TJA!E:6.1�AhAE-J- ......... (Signature of applicant, or name, if a corporation) `�i. 7Ti cv_ K(y t9sZ ..a ..,....: :..... (Mailing address of applicant) State whether applicant is owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or builder .............. ..................(....I ... l ....(.............J.I.............. .......... . Name of owner of premises ...C:�.1 *,t............................................ ................................... . (as on the tax roll or latest deed) If applicant is a corporation, signature of duly authorized officer. ... ........... t...... �S I- �'....... (Name and title of corporate officer) Builders License No. ........r................ Plumbers License No. .. �:/c .—.F....... Electricians License No. ....t�t'3.��.... Other Trades License No. .................... S 1. Location of land on which pr work will be done. o .L'.!' .. , rLN .......ISI a rLT,H--Seo` P-D VIE14 S( .1.5...--°a --...........................^ ..�................. y. Her •treet Hamlet County Tax Map No. 1000 Section .Q,5 L/.�U.... Block ... I.t.......... Lot Subdivision ...................................... Filed Map No. ............... Lot ............... (Name) 2. State existing use and occupancy of emises and intended use and occupancy of proposed construction: a. Existing use and occupancy ?S:(.p�;�. R ►-I'( ................................................. ....... ................................. r\b. Intended use and occupancy ..... e 3 TC. T................................................ � 'srh/rq 3. Nature of work (check which applicable): New Building ......... Addition , Alter�taOn ........ , + I �' r Repair ............ Removal .......... Demolition ............. Other Work .... ,. ... y:............. '.;.P kDe ription) °4Estimated Cost .....� ..... fee ...........................�.... "".NS'+rw:R..Ir.k-=-a�rw.1`->:K,-.�T.,..`M'?,.fj..�.,P,•.;'.a,".0,�1,'�'VV r! (to be paid on filing this Yfa"t on 5. If dwelling, number of dwelling units ............ Number of dwelling units on each floor ................ Ifgarage; number of cars ...................................... o 6. If business, commercial or mixed occupancy, specify nature and extent of each type of use..CZQ1Y M.ek15Z"-' 7. Dimensions of existing structures, if any: Dont................ Rear ............... Depth ................. Height ......................... Number of Stories ........f............. Dimensions of same structure with alterations or additions: Dont ............... Rear ............... Depth .................... Height .................... Number of Stories ............... 8. Dimensions of entire new construction: Front .............. Rrar ............... Depth .............. Height ......................... Number of Stories`� ..................... IF qq 9. Size of lot: Front .../f. .� yr Q� ...... Rear ..:2��:.1 .. Dept/h' Cf 1'� :.`� ... 10. Date of Purchase ...7 L J �.J.----. Name of Former Owner .... ,r ...:? �....... I I. Zone or use district in which premises are situated ...t e i!D.�r!.(!�:4..J\1 A 9.77.. 12. Does- proposed construction violate any zoning law,, ordinance or regulation: ........................ 13. Will lot be regraded .................... Will excess fill be removed from premises: YES O 14. Names of Owner of Vneintses7Kft'�t►:s e.7:4�TQwSAcldress .� off.aE+J`.?!loco?-Phone No. �1 � O�y Name of Architect `14�.1G1� i.. .Y� .�xl. ...... Address �:o:.�o:� ©l.mEl: !�7.�C Phone No. 2�:�....... Name of Contractor uj:^...!✓:N1VdAAi4�& C'.0 No. 15. Is this property within 300 feet of a tidal wetland? * YES .......... NO ..� . *IF YES, SO[Ali[1lD 1ULM TRUSIMS PEDffT MAY BE REQUIRED. �e r PLOT DIAGRAM Locate clearly and distinctly all buildings, whether existing or proposed, and indicate all set—back dimensions from property lines. Give street and block number or description according to deed, and show street names and indicate whether interior or corner lot. r srnlr Or ra W YORK, SS , COUNiT OC ..S.F E O kA ......... ...... 2/-N-,F.- Q ?-5k5.-L...........being duly sworn, deposes and says that he is the applicant ! ' (Name of indivsidual signing contract) above named,,,.+' - Ile is the .... �!2 P P. (RA��....(9 ELIC!zZ A...................................................... (Contractor, agent, corporate officer, etc.) of said owner or owners, and is duly authorized to perform or have performed the said work and to make and file this application; that alt statements contained in this application are true to the best of his knowledge and belief; and that the work will be performed in the manner set forth in the application filed therewith. Sworn to before me this ........ .........day of Notary Public ..................................... 64C ... Z '=`4Zc�s V (Signature of Applicant) Notary Public StateKETTRICK York No.01AMM 1297 - Term Exxp res JJune 3. -�a I Zcq_' NG BOARD OF APPEALS Town Hall Office 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Email: Linda.KowalskikTown.Southold.ny.us or Paula.Ouintieri(a-,)Town.S o u th old.ny.us http://southoldtown.northfork.net (631) 765-1809 fax (631) 765-1823 (alt. 9064) TRANSMITTAL To: Jerry, Lydia, George, Ruth, and Vincent DATE: 10/ 3 /2002 REF: Hearing Date: _/ 1 Appl. of i (x ) Info attached for your information and review. l0 D — c> C-1 e� Id 0413 Thank you. Pages attached: \ 7n � October 2, 2002 OCT, 2 ' Southold Town Zoning Board of Appeals � �`� Main Road Southold, New York 11971 RE: Updated Site Plan - Elbow East Submitting copies of the updated site plan for Elbow East. Site plan shows landscape design, parking lot layout and parking lot drainage system as per Town Engineer Recommendations. Thank you, T. Rutkowski &W k 0 N^� OU I A i i MEMBER OLIVIA: Right,everything. j 2 CHAIRMAN: And basically a small synopsis of what Mr.Fisheti has told us. MRS.MOORE: Yes,Joe will give us a report now that he understands where you're focused. CHAIRMAN: The date is 5 business days before the 12`h of December. Thank you very much. Good night. Everybody has been waiting patiently. We have been here 3 1%ours. We will break for 5 minutes before the final hearing of the evening. We are recessing it to no more verbajm testimony recessed until December 12th for the purposes of closure. 9:16 pm Appl.No.5051-CLIFF AND PHIL'S LOBSTER HOUSE. (Continued hearing from February 28, 2002). Based on the Building Department's Notice of Disapproval issued November 13,2001,amended/updated October 22,2002,applicant requests zoning determinations for: (a)an Interpretation under Article XXIV,Section r Page 36-Public Hearing November 14, 2002-Regular Meeting Southold Town Board of Appeals 100-243 to Reverse the Building Department's determination which states that the proposed addition/alterations to an existing restaurant establishment is not permitted in a Residential R-40 District,or alternatively a Variance authorizing the proposed addition to the existing restaurant,a nonconforming use in a nonconforming building; and (b)a setback variance is also requested under Section 100-244B for an addition to the existing building which will be less than 40'from the front property line. Location of Property: Corner of the east side of Kenny's Road and the south side of North Sea Drive, Southold;Parcel 1000-54-5-22. CHAIRMAN: Council is standing at the mike,we're going to ask him to identify himself,although we know who he is,and then we are going to go over some ground rules,and then we'll go from there. GEORGE TUNIS,ESQ: Thank you Mr.Chairman,my name is George Tunis,I'm with the law firm of Rifkin Radler,EAB Plaza,Uniondale,NY. I'm the attorney for the applicant,Cliff and Phil's Lobster House Inc. commonly known as Elbow East restaurant. CHAIRMAN: What we need from you is to pass this around to everybody so that we have everybody in the audience,and hopefully their telephone numbers so if we need to get back to anybody,we will be able to do so. I am expecting this hearing to go no later than 10:45 and so I'm going to ask everybody to kind of step it up,and with that in mind- Chairman,can I ask you to ask the people to identify themselves as Kennys Beach Civic Association member as opposed to those who are with Cliffs? Would that be out of line? CHAIRMAN: Everybody will be sworn in,they can tell us after they are sworn in-where they live if they choose to do so. It would make more sense to do that. We can try that. MR.TUNIS: Chairman,as you are aware,the restaurant is located at 50 North Sea Road,at the corner of Kenny's Road in Southold,the parcel is approximately 22,000 sq.ft.it is zoned residential as this board is aware. It was subject to an upzoning without compensation about a decade ago,and exists as a pre-existing non-conforming use. The issue before this board this evening-there are several issues but the applicant seeks relief both with area and use variances to renovate and expand an existing restaurant. We wish to bring the restaurant into ADA American Disabilities Act compliance,add a handicap lift,handicap bathrooms. We also wish to beautify the restaurant and expand it. At this point and time,Mr.Chairman,I have prepared a briefing book for all the members of the board and introduced it into the record as an exhibit. If you may indulge me for a minute that I may go through it with you,we have a summary of the application I have here photos of the current restaurant. We have north elevation east elevation west elevation,and east elevation and that is in tab 2. You can see the current state of the building. I would call it under whelming and I think everyone might agree that it could be more beautiful. These are some pictures of the interior in tab 3 -you clearly have a photo that has a bar area with 18 bar seats currently. You can see the bathrooms as they swing out into the lounge area behind tab 4,we have the site plan. I have the elevations as well. Tab 6 is the public hearing notice and the paper which I'm appealing from the Notice of Disapproval. I have a memorandum of law tab 7. I did this as the hour is late and there's many speakers and this is the second time we are doing this,I have listed the criteria in the proofs for both the area variance and the use variances on paper for the record that you can read at your leisure so I don't need to be redundant. Mrs.Tortora you had mentioned that you see all the cases that I mentioned in the prior hearing. I have them all for you behind tab 8. Tab 9 there are 600 signatures an overwhelming majority from the Town of Southold,all of which are patrons of the restaurant and support of this application. I know that's not depositive and I know that public reaction does not factor into this board's duties,but I thought that it would be helpful to show the support that the restaurant has. I also have because this is going to be part of my proof for a use variance. The certified financial statements for the establishment and I have professional written testimony by a recognized expert behind tab 11 which I will get into a little later. As you are aware this is a pre-existing non-conforming use. It's a residential area. Clearly no one is denying that. Also no one has objected to operating a restaurant which has a legal and valid right to operate in this neighborhood. It's been there since the 1950's. But people always have concerns. Some very sensible,some maybe a little misguided. Judge Cardosa in 1927 recognized that the ZBA should have an important function a delegate jurisdiction,and one not easily abused that under special circumstances and there really needs to be special circumstances,that ZBA's are permitted to grant use variances. That's why we are here. Upon a showing of unnecessary hardship,general rules are suspended in this case for a pre-existing establishment,one in a residential zone for the benefit of individual Page 37- Public Hearing November 14, 2002- Regular Meeting Southold Town Board of Appeals owners and special privileges are established where the burden of special exception creates a special hardship. To this end,NYS law stated it is to promote equal justice. Where there is a situation that is so unfair where the applicant cannot properly operate a business and have a reasonable rate of return,ZBA's have swore fit to grant variances to create social justice. An unnecessary hardship has several prongs. You cannot achieve a financial return. This has to be shown to the board with dollars and cents,certified financial data. In the prior hearing,years 2000 and 2001 certified financial documents were given to this board. Respectively they showed a 25,000 and 4,500 annual loss. Since the calendar financial year ends on June 30th,I now have 2002 certified financial returns, and I'd like to give them to you for the record. Mr.Chairman,2002 was a better year than 2001. It showed a$1,700 profit for the year as certified by our accountants under oath. The law is quite clear on this. That an individual needs to have a reasonable return on a lawsuit there were losses in the two prior years. That's not the standard there's not to be a loss there needs to be a reasonable return. Clearly the owners can go with their jobs elsewhere and get a greater return. Another prong is the uniqueness prong that stems out of the Douglas Inn Civic Association case. The uniqueness prong is very novel. There was a concern by the legislature courts and ZBA's that said if we grant the relief the applicant is seeking now do we not go on a slippery slope. These are not to be handed out like candy,if you want that you go to the Town Board and you get a change of zone. They are not to be handed out cavalierly so this situation needs to be one of uniqueness. It doesn't have to be the only one. It has to be less than the majority. And I would ask this court to take judicial notice that this situation is the only one in that particular neighborhood. This restaurant has been around since the 50's. It's the only one-it's now a residentially zoned property. If it ever burnt down-if 50%of it's value was decimated,you couldn't rebuild it and I want everyone to understand-all the neighbors-if this board grants this particular relief other neighbors cannot tear down their houses and build restaurants. This is it,it's the only one. It's the only one. It's the only parcel that once had a commercial designation,was an existing restaurant in that whole community. There is no president set here. This is a very unique parcel and as I mentioned earlier,the uniqueness is exasperated because it was the site it was the subject of a taken. It was upzoned with no compensation. It makes it further unique and in the interest of justice and fairness,you should be able to operate a business and seek relief in an effort to improve their business and seek a financial return. Whereas if they didn't have that upzone,we wouldn't have to be here for most of these variances. The last prong is the character and nature of the community. I have before you a report by Andrew Stype who I believe is recognized as an expert. He has done an analysis of all the home in the area,both the inland homes the inland lots and the waterview homes,and in conclusion,his high load difference for inland homes is 88-90% increase from 2001 to 2002. His inland lots indicate an increase from 41-73%and his waterview homes indicate an increase from 21-44%and I would ask this board to take judicial notice of what I think many of the neighbors already know over the last 10 years property values in this neighborhood have appreciated and appreciated substantially and what I respectfully present to this board is that I'm sure that some people will try to make this restaurant out to be the nastum of the community. Property values have gone nowhere but up it's been complimentary to the community. This restaurant was here before most of these homes. As a matter of fact,this community- MEMBER OLIVIA: Can you please go up to the mike? We can't hear you. MR.TUNIS: I'm sorry. I was going to show you some elevations. This community was one of beach bungalows. Beach bungalows that over the years were torn down,and homes built,and I think it the trend follows many manses and mansions being built. I think many of the neighbors and learned council more stated that many of these homes are going for a million dollars now. Talk about changing the nature of the community. I think most of the people in this neighborhood have participated in creating equity and value in tearing down which were beach bungalows or at the very least in expanding and renovating existing homes creating new ones,creating equity for themselves and good for them,good for them. But clearly,the trend in this community has been to much larger homes. If I can I'd like to point out as to what we are proposing to do,but before I do that,if you look behind one of the tabs,you will see what the premises looks like today. Clearly it's box in nature from every standpoint. The area which we are going to construct the expansion does not unhinge on the parking lots so we'll be able to have the sufficient 43 parking spaces,but clearly I think anyone would say that this could be better,and it's not keeping within the character and nature of our Southold community. What we are proposing is a building that has peaks and mortars and flat board. I think it's very sensitive. It does cost a lot of money,but I think it's a great improvement for what does currently exist. I think it looks more like the homes being built than the current restaurant and this is the front entrance and if you don't mind I'll put them over here so the neighbors can see them. Page 38-Public Hearing November 14, 2002- Regular Meeting Southold Town Board of Appeals CHAIRMAN: They may or may not stand. We can always take a recess so everybody can review it. MR.TUNIS: Because one of the prongs are the character and nature of the community,we have taken various photos of the surrounding homes. I think you will find these homes to be very large in nature and with a very out- stated peaked roof and dormers. I think you will see that two of these homes are adjacent to the restaurant. There is a million dollar home that is being constructed across the street that I have a photo of and I'd like to enter them as exhibits into the record. I'd also like to point out how the restaurant would use the proposed expansion. And if I may,I'd like to turn your attention to this floor plan. We're asking for an approximately 1400 sq. ft.addition, approximately 32%of that or approximately 400 sq. ft.will be a dining area,approximately 34%of that and 476 sq. ft.will be all your halls,bathrooms,again to become ADA compliant. There will be a handicap lift access to become handicap compliant. I cannot tell you the importance of providing facilities so that handicap members of our community can properly access and again that creates one of those special situations where relief should be granted in these cases. There is a utility storage area of approximately 80%or 120 sq.ft. and there is a lounge area addition of approximately 375 sq.ft.the size of a hotel room which is approximately 26'/2 of the proposed expansion. I'd like an opportunity to discuss what type of restaurant has been operating there and I'd like to call the owner Mr.Berliner to call some testimony. I'll be doing it in the form of questions. CHAIRMAN: Do you solemnly swear the information you are about to give us is the truth to the best of your knowledge? WILLIAM BERLINGER: I do. CHAIRMAN: Can you state your name please? MR.BERLINGER: William Benjamin Berlinger,Jr. CHAIRMAN: Thank you. MR.TUNIS: Mr.Berlinger what is your occupation? MR.BERLINGER: I am a chef and along with my sister,an owner of Elbow East. MR.TUNIS: And how long have you been associated with the restaurant? MR.BERLINGER: It will be 14 years this coming March. MR.TUNIS: And can you describe for us what type of restaurant you operate. MR.BERLINGER: It's a family restaurant. We have 2 dining rooms and a small lounge. MR.TUNIS: Could you describe to us a little bit about the menu? MR.BERLINGER: We are mainly steak and seafood. Of course our marinated steaks have been a famous item on the North Fork for quite a few years, and surf and turf and fresh seafood. MR.TUNIS: Could you tell us a little bit about your patronage? MR.BERLINGER: Well we are open for lunch everyday and our lunch is very reasonable and I would say mainly it's senior citizens. We have some people that work in the area quite a bit. And at night,again a lot of senior citizens because our menu is reasonable all the way through. And a lot of families mainly on weekends. You know the people are out for pumpkins and to visit vineyards and so forth. MR.TUNIS: Are there associations and trades? f Page 39- Public Hearing November 14, 2002- Regular Meeting Southold Town Board of Appeals MR.BERLINGER: We have Lions Club meetings,fire departments,Southold Town PBA was there a few weeks ago. MR.TUNIS: The Southold PBA. Can you tell us in the 13 years that you have been there if there have been altercations? MR.BERLINGER: Never. Not once. MR.TUNIS: Sounds like a nice place. Thank you sir. This concludes my application. In chief,much of our professional testimony you have in written form. I did want to keep it brief. I look forward,Mr. Chairman,to answering any questions this board or any of the neighbors may have. CHAIRMAN: Thank you sir. Mrs.Moore,good evening again. PATRICIA MOORE,ESQ: Good evening. I have a memo for the board. I would like to begin with-I'll try to be loud. I'll get loud later as I get heated I'm sure. I would like to point out that after reviewing the documents in the file and the testimony from the previous meeting. I had some difficulty in figuring out what the actual sq.footage is because every time I look at a document,it's a little off or it's a different number. In my memo I put down the existing building that is shown as 2,860 sq.ft.it comes from one of the documents that is currently submitted, however when I look at a'84 site plan which was submitted to the ZBA in their files. It comes to 2580.75 sq.ft. I think that's relevant because with respect to the ordinance and the degree of expansion that this board will have to determine whether or not it's applicable,the existing sq.footage is important so I think you have to reach a conclusion as to what is the actual legal sq.footage of this building. I couldn't tell from the numerous documents,it varies somewhat. CHAIRMAN: Can I just ask a question regarding all that? I think the issue is when was the fire? And what occurred. MRS.MOORE: I am going to get into that. Let me just go in the order of my points. My first point is in respect to the standards of the use variance and the need to prove no reasonable return and financial hardship. I actually submitted the original tax return to one of our members who had access to a very fine accounting firm of Captain and Negrin in Great Neck. They actually do work on the south side for restaurants as well as are very familiar with restaurant accounting. I've submitted attached to this memo the letter that they review the analysis or statement that was prepared for the 2000-2001 and they criticize or critique that statement and essentially what they conclude is based on that statement,they can't conclude that there is financial hardship. The disclosures aren't sufficient to really review the financial data and come to a conclusion the big question why the June 30,2002 wasn't submitted and thank you Mr.Tunis and his client for submitting it,now I will send that off to the accountant to give additional information that will help them with the financial data. If I could very quickly also review the-they point out what we obviously already know restaurant is a cash basis business and the information that was certified to is based again on the clients documentation that they give to the accountant and again they could not verify the information that was submitted to them for the financial statement. They also analyze the breakdown of sales and cost and in particular the turnaround,the seating of the profit is actually in the number of times you can turn the seats during the work week during the weekday off season you may turn around,turn the tables over 4 or 5 times whereas in the summer peak you might have the tables turn over 20 times that's actually if you were buying a restaurant business you would be looking for that kind of data to determine exactly what is what is the profitability of this restaurant. Again,he mentioned that he is the chef I didn't realize that chef/owner he does state in the financial data 135 for the budget or salaries of the chef is there more than 1 chef. Other issues like depreciation that it comes right off the top it comes back in these are accounting methods to minimize your tax consequence but on the other hand it's not determative of profit so the financial statement does not meet the burden that is required and it is a very difficult burden for the applicant to establish a use variance. This board know and the attorney knows it is tantamount to a legislative act and it is an extremely high burden going on to the other points, as I went through I tried to find out what was the expansion history,what was the history of this property. To some extent it was given last time and we know from last time and we know from one of the neighbors that testified that lived there that she said she lived there in the 50's and yes the building was there,but it was a hot dog stand. That's how it started,a very small very innocuous seasonal type of food establishment. Thereafter in 1984 we know from the towns records that a variance Page 40 -Public Hearing November 14, 2002- Regular Meeting Southold Town Board of Appeals was applied for. Now an occupancy rating of the restaurant from what I can tell,I went to look at the Health Department applications sometimes all the information is in here in our own records. I went and reviewed the health department records. Often times you see what you are looking for in other agencies. When I went and reviewed the Health Department records,the'88 application after the fire or actually it was right before the fire was occupancy of '49 so we know that at one point in time in the'80's it started out with about 49 occupancy rating. In'88 the Health Department reviewed the application after the kitchen fire. That would be'88 application in the application which I attach here so you can see for yourself,the application for the Health Department asked you to identify what you have and then what you want. What you had at the time was 49,what you requested was 70. After extensive review by the Health Department,the Health Department granted them seating for 70. in'89,between'88 and'89 there was a kitchen fire and they came in for an application for the Building Department for repairs to roof replace unsound framing members all windows,floors,wall covering insulation and new kitchen. What actually ended up happening is that there is a re-arrangement of the building and they ended up with 78 seats. Now at the time that the variance was granted in'89,excuse me'84,the zoning had already changed the zoning of this area was in the'70's because in '84 when the application for this board was made,it was made as a use variance,so we know that at that time,it was one of the zone changes that occurred between'70 and'82 so right off the bat this was and has been for a very long time,a nonconforming use. That's important because in most recent times when the board was looking,the previous or current board was doing the rezoning on Rt.-48 there was a consideration for nonconforming uses and it was primarily for the properties that we about to be or could be rezoned on Rt.48 when the zoning was adjusted up on the North Road and certain properties were nonconforming the board at that time looked at it and said you know,we _are listening to you,we hear you,we are going to give you an opportunity to get you some form of relief and the board in the code provides for a 15%as of right increase and I would submit to this board because they benefited already for a sizable use variance and expansion. They went from the 46 to the 70 according to the permits when in fact 78 pieces and some of the paperwork here so it grew a little bit by 8 seats,but more or less in that general range, so in'89 the building and the nonconforming use was expanding by 63%. That's an enormous-this board granted a very generous use variance and a sizable expansion at that time,and you did consider the area variances to the street. You did consider the neighborhood and the fact that they wanted to renovate,do some small renovations,I think it was considered a small sunroom type of expansion,but the end result was that there wasn't in your files any internal layout that gave an idea of what the seating was and how many seats there really were so in effect after the renovations and the use variance there was a huge expansion of 63%. Now they've got an application in 2002 that they are asking for 144'. I've looked at the floor plan and by count I looked at the proposed floor plan and again still they are not providing you and you haven't asked them or I can't tell that you've asked them for an existing floor plan. What are the number of seats that you have there now? Because how are you going to control the expansion if you don't know what they have there now. It's very tricky and it's very easy to massage a building when you are asking for a handicap bathroom to put it in the middle of the building and all of a sudden the whole thing gets renovated and everybody gets new seating and it suddenly grows. We believe the best from the applicant,but on the other hand,we want to control it. Going back to the numbers, 118 seats at the table and 26 seats at the bar. From what I can tell from a photograph actually that was in your files,and again,I really want this board to ask-I would ask the board to ask the applicant to supply internal layout of the seating. Let's find out how many actual barstools there are,but I think the actual from what I can count from photographs and layouts,there are about 8. So he's going from 8 to 26 barstools. And he's going from whatever the number of seats are for the restaurant up to 144, however the numbers break up. That's from my calculations,almost 300%increase. That's way off the charts,it far exceeds any standards. It's unfair to place and I know there are a lot of people here in support and there are a lot people here in opposition. Your pitting 2 groups against each other and everybody's very cordial and nice but we shouldn't have been placed in that position. Ask for something reasonable. It might be considered,it certainly will be considered by this board it would be considered by the neighbors. What they've asked for is truly off the charts. Again looking back at the ordinance the way it's written,you have a great deal of discretion on how you're going to interpret that section of the code it is the first time it's going to be interpreted and I would submit to you that you should interpret it very narrowly because in this instance,they have had a 60%expansion not that long ago,certainly in the Chairman's lifetime on this board and you're all local,you've seen it yourselves you've probably been there in the time frame that they've done the renovation. So I would ask you to be very careful ask for the right information and limit them very carefully. I did provide to you a 1977 citation which was actually was a bullstring of what the board can do. You are permitted to-obviously you have that right under the statute,but you will be sustained by court,particularly that it's being reviewed by the first time. By this board it's being applied for the first time. If we were to apply the ordinance with the 15%as of right lot coverage,or expansion of the footprint because it's very clear it's a footprint- 15%of the legally existing structure, again going back to what is the size that is legally Page 41 -Public Hearing November 14, 2002- Regular Meeting Southold Town Board of Appeals existing there,I come to 387 sq.ft. That's what a 15%expansion of the footprint. That's not very much. That could give them a handicap bathroom. That would deal with it. If they need a handicap ramp,well I think they have a handicap ramp,but if they want an additional one,that certainly nobody would object to that,but the type of expansion,the type of proposal,the proposal is being made is just not acceptable,I would also ask if they are using and their sq.footage calculations and their renovation,the outdoor seating. It was not clear in my review of the plans if when they are looking at the sq.footage and the expansion if there is some outdoor seating area that may have been used in the total square footage calculation and that shouldn't be. That's not-that's outside seating area and are they planning to replace it with another outside seating area. CHAIRMAN: Mrs.Moore-when I was over there this past weekend,it was clearly stated to me by Mr.Berlinger- there is no outside seating. I don't know what you are talking about. MRS.MOORE: It showed on a plan. I didn't know either,I'm afraid to go over there to dinner now because until this is over and it all blows over,I don't think I'll have some soup. I'm sure they wouldn't want to bring me harm, but just in case I think I'll skip it. They are a very good restaurant. If there's no seating,that's fine. But it shows up on a plan in one of the site plans that was one of the site plans that was the'84 or'86 proposal I didn't know if that had been incorporated into the overall expansion or not. Again,I'm working with paper and certain things showing on paper verses what in actuality is there. CHAIRMAN: Just clearly state this so I can understand it. Prior to the fire,which you say occurred in 1988,the seating capacity was what? MRS.MOORE: In'84,49. What I took that from is look at the Health Department application made by the owner in'88. That has the-here SC Dept.of Health application for construction of sewer disposal facility water supply right on rated occupancy on the first column on the right hand side it says it's- CHAIRMAN: That's 1984,prior to- MRS.MOORE: The application and Health Department says'88. What happens is your files don't have an occupancy,and your variance application,I could not find anything telling me what the occupancy,how many tables,how many seatings,how many bodies were going to be in there. It was clearly on the sq.footage calculations and so I went backwards. CHAIRMAN: What are you telling me 1988,prior to the fire was. MRS.MOORE: I'm saying that prior to the fire from what I can tell it would have been 49. In'88 when whether maybe they can clarify the history for me,but did they do the renovations,then have a fire,then do another renovation? My guess is that before they started renovations they had a fire,now they actually went ahead and did the full renovation,but before they could do that,they needed Health Department. They may have had a variance from this board in fact the Building Department issuing the'89 building permit referred back to the variance that was granted in'84 in order to grant that'89 permit. They used it as a basis to grant this because it was already I don't want to say as a right it ran with the land and it was there. CHAIRMAN: How much more do you have to go,I'd like to clear this issue up. MRS.MOORE: Please clarify it. CHAIRMAN: Are you able to clarity this tonight,Mr.Tunis? MR.TUNIS: Yes Chairman. Do you want me to speak on that issue alone,or various other points that council has brought up? CHAIRMAN: The point is that I just want to clear that issue up,and then what I'd like you to do is hold those,we'll go to the audience,and then we'll come back with a wrap up or else it becomes counterproductive. Page 42-Public Hearing November 14, 2002- Regular Meeting Southold Town Board of Appeals MR.TUNIS: Certainly,sir,if this board would turn to tab 5 and go to the last sheet of paper and let me make a point clear. There are currently 18 bar seats and 74 dining seats for a total of 92. Those are barstools included which would not factor into the Health Department calculations. This is not a Health Department matter that is under the jurisdiction of the Board of Review. We are proposing to go to 26 bar seats and increase it 8 and we are asking to go to 98 dining seats,an increase of 24 the total seating will go from 92 to 124,32 additional seats. That's approximately a 1/3%increase-you have in your booklets the current site plan with the amount of seats. You also have the proposed expansion clearly delineates areas that are dining lounge and foyer bathroom. Handicap ramp, handicap bathroom,handicap lift I'm sorry if there was confusion but they were in the booklets and are here available. This drawing is not correct. That is the proposed-what you have in your left hand is what is existing. What you have in your right hand is what is proposed and the difference is 32 seats,24 in the dining room, 8 in the lounge area. CHAIRMAN: Before we leave that point,the purpose of the red diagonal area is an area that I assume has been brought up to me to be the smoking lounge,the smoking restaurant area? MR.TUNIS: It's one of the-on February 28 when we were before this board,it was to be an enclosed smoking dining room. A dining room for smoking patrons early. The thought was to enclose the area and protect the-other patrons in the lounge area and the other dining area from second hand smoke. We ask this board to not only do a code interpretation of the American Disabilities Act also the smoking laws of Suffolk County that it would be a benefit to the entire community and an improvement to the restaurant and under those circumstances that the court allows you to consider to grant the expansion provided we do good things with this. The law still exists. I don't know if it's going to continue to exist,so with good faith I can't come up here and say we are asking for this expansion solely for the purposes of the protection of second hand smoke. That may or may not be rendered mute, but today with the existing law,that is our plan. MEMBER TORTORA: When you say a code interpretation of the ADA,and you say a code interpretation smoking laws,you're way out of my league,I'm not sure what you mean. MR.TUNIS: Town law 267B provides for legislature grants this board tremendous authority you sit as a quasi- judicial body you sit as a body that interprets everything. MEMBER TORTORA: When you interpret the town code by-law,267B of NYS town law- MR.TUNIS: You are also granted powers of interpretation,you are the body that can overrule the zoning enforcement officer what I've asked this board to do under their powers granted by 267B 1 is to give us an interpretation as to whether we fit within the special circumstances and as to a benefit to the community to allow us additional areas to 1.provide handicap accessible facilities,a proper foyer,proper bathrooms and a handicap lift because if you've been to the restaurant,you know that it's sort of on 2 different-the demarcation is slightly different and you'd have to go up steps to go up to the dining room that we would provide a handicap lift. In addition to that- MEMBER TORTORA: In special circumstances,this is extremely important,the special circumstances is in lieu of meeting the criteria of the use variance is that,am I? MR.TUNIS: Yes there are,we have asked for relief in terms of a use variance and in the alternative,under your powers under 267B 1 to make an interpretation and to overrule the decision made by the zoning officer of the Building Department to allow additional space to provide enclosed smoking facilities to protect the citizenry from second hand smoke and to provide handicap and proper and compliant handicap accessible facilities for the entire community. MEMBER TORTORA: The smoking as you've just conceded I mean since we don't know the outcome of that law and since you certainly there would be no desire on your part to covet that it be permanently be used as a smoking area,I'm sure in view of the fact that that law could change at any time,that would be very difficult,it would also be so we can hopefully get you through this by the end of the year 2005. Page 43-Public Hearing November 14, 2002-Regular Meeting Southold Town Board of Appeals MR.TUNIS: I would appreciate it and I will test my good friend Pat Moore's soup if she goes into the restaurant. If I lose,I may have a problem. CHAIRMAN: Mrs.Moore,we can't ask you to reflect on anything that was just said,but I would like to continue if it's alright with you. We are going to start with the left hand side which is my left,your right which we refer to the east northeast side of the building,and we'll ask anybody if they would like to speak. The nice lady in the back of the room on the west side very simply said if you are part of the Kenny's beach association or you are a community person in that area and you'd like to recognize that you are certainly welcome to I can't force anybody to do anything. However you will be sworn in and I will ask you to give us your statement if there are any spokespersons for any groups I ask you who you are speaking for and we ask you to speak as quickly as possible because we have many people here,so we'll start over here,just raise your hand and come up. Come on up. Raise your right hand sir. Do you solemnly swear the testimony you are about to give us is the truth to the best of your knowledge? RONALD PETERSON: It is. My name is Ronald Peterson. Good evening and thank you.I've been a long time resident of that hamlet of Southold and also a business owner in Mattituck 18 years in business and 25 years in residence. I'm one of the local residents within 500 yards of the restaurant. I'm very aware of the problems of owning a business in this area and how hard it is to stay in business and make a profit with all the regulations of the state and local governments. I'm a firm believer in supporting local businesses including the Elbow East restoration project. This is a family owned business owned and operated by a family who are also long time residents who had an opportunity to own a business. I know the family who is running the Elbow East,they are a family of high moral standards,hard work,terrific ethics and professionalism. Aesthetically I feel the proposed building expansion will only increase the value of our homes and also improve our quality of life. Thank you. CHAIRMAN: Anybody else on the east side of the building,for or against? You act like you're a Trustee or something. ARTHUR FORSTER: I know what you are going through here. Remember when it used to be easy? CHAIRMAN: It's never been easy,but I appreciate that. Do you solemnly swear the information you are about to give is the truth to the best of your knowledge? MR.FOSTER: I don't want to be redundant. Ron said a lot of things that I was going to say,but I have to just say that it amazes me that,maybe I better not get into that. I'll just say that it is difficult to do business in this town. Times change. That place has been there since the'50's. 1 was in there when I was old enough to eat and it was a hot dog stand and it's been a restaurant for a long time. I operated a business in town for 30 years,and it's getting worse by the day,and we have a successful business there. They do a fine job. I think they are an asset to the community. They support a lot of events that go on there,events that go on there,events in which money is raised which is turned back into the community to local charities. I think they are an asset to the community and should be allowed to stay. I'm kind of thankful to lawyers because I go home at night and read my dictionary. I try to put this in layman terms and make it a little bit more simple so at least I can understand it,I don't know about anybody else. I don't think there's too many people in here who haven't eaten in there or any one of the restaurants that Cliff started that is very famous for his marinated steak and hospitality and just being a part of the community and I think it's time local government reached out and started helping our local business. You go into Feather-excuse me-you'll have your chance in a few minutes. You go into Feather Hill and some of these places are open one day and closed the next. It's very difficult to do business in here and when you get a business with local people,local residents that have put sweat equity into it to make it survive,I just think we have an obligation to support them. The idea of going into business is to be successful,and if you want to be successful you want to try to expand. The idea is not to stop them from expansion and hold them to the point where they are not making any money,you might as well get a job working for somebody else. You can make$80,000 a year cutting lawns out here. So if there isn't some incentive to stay in there and fight to try and do things and put your hard sweat and equity,and I personally feel after having done it for 30 years that it's the local government's obligation to support these local businesses. Now I know these people are-I know this is a classic example of moving in at the other end of the runway and then calling the FAA to change the traffic pattern. I really urge you to take a good look at this and I urge you to approve this application and give these people a chance to expand. You have children,you have families born and raised here and I think that's what small community business and government is supposed to be about. Thank you. Page 44-Public Hearing November 14, 2002- Regular Meeting Southold Town Board of Appeals CHAIRMAN: Anybody else on the east side? Go ahead. Raise your right hand sir. Do you solemnly swear the information you are about to give is the truth to the best of your knowledge? TOM SADOSKI: My name is Tom Sadoski-I live on Hyatt Road,Horton's Point. I'm not adjacent to the restaurant,I frequent it quite often for dinner,I've known the owners for a long time,I've know Cliff Saunders for a long time. I see nothing wrong with the addition and grass cutters don't make 80 grand a year,I'm one of them. But it is a nice place to go for dinner,and it's a nice place to go and watch a football game with our neighbors. There's been a lot of bad press that I really don't like and I really don't like to be called a drug addict. Thank you very much. MR.TUNIS: Instead of having all the people speak in favor,perhaps- CHAIRMAN: No,I said for or against. MR.TUNIS: I know perhaps all the people who wish to speak in favor,for the interest of time just to stand up- CHAIRMAN: p-CHA RMAN: Well;we in effect are going to do-that,but the individual,but this is Southold and I know Mr.Tunis and I don't mean that sarcastically,people are coming to this hearing because they want to speak. Mr. Sullivan. Do you solemnly swear the information you are about to give is the truth to the best of your knowledge? GEORGE SULLIVAN: I do. My name is George Sullivan. I'm a resident of 275 Midfarm Road in Southold. I have previously spoken on behalf of the applicants and my comments are part of the public record. I speak only as a resident of the town as one who has been in business for over 30 years. I was faced with a similar situation when I moved my business to an area that was zoned residential but permitted business use. The neighbors were at first resentful as this incursion however I insured that the building and grounds were of the highest standards and in effect that example increased all the surroundings. Even though I do not have an interest in the property today,I believe the block is the most attractive in the Town of Southold. The neighbors have always complimented me and have realized that all can benefit with the right intentions. I feel that the applicants have the right intention and their plan will only add to the quality of life that we enjoy here in Southold. Thank you. CHAIRMAN: I'm not stopping anybody on the east side but is there anybody in the back of the room or outside that would like to come in and speak? Okay we'll go the middle. Anybody in the middle? Do you solemnly swear the information you are about to give is the truth to the best of your knowledge? CHUCK LEISTER: I do. My name is Chuck Leister. How do you do? I had no intentions of coming to this meeting,but I am here and I am a resident on Leyton Drive,and I've been there a long time,and I saw the hot dog stand and actually,the only thing that I would have a problem with as a resident is the fear as a resident is that with an expansion,correct me if I'm wrong,but I think in Suffolk County bars can stay open until 3:00. Is that true,does anyone know? 4:00,okay when I was a kid it was 3:00. I'm worried about that because it sounds like this is a place where,great,you can have fun,but at 3 or 4 in the morning,it would get very busy in that very rural little neighborhood,and I wouldn't like that,nor would my family. CHAIRMAN: Has that been the case with this restaurant? MR.LEISTER: No. Because the restaurants that have been there and this restaurant I don't think had a big bar business. Now at 3 or 4 in the morning your dinner is over so whatever is happening,it's different. Thank you. CHAIRMAN: Again in the center of the room? Do you solemnly swear the information you are about to give is the truth to the best of your knowledge? WHITNEY BOOTH: My name is Whitney Booth,I'm sort of a neighbor of this place,I live on the opposite comer of that block. I measured it yesterday,it's 7.10's of a mile by the road as a crow flies,it's a little closer. That doesn't mean that we don't have a little offshoot of what goes on because I walk virtually everyday past the restaurant to get a little exercise. I've seen a very good business going on there. I can't imagine what the hardship there. Gee I see it from let's say a good business to a crashing business. I kind of envy these fellows already. I'm trying to figure why Page 45- Public Hearing November 14, 2002-Regular Meeting Southold Town Board of Appeals they need this huge obvious investment as well as-it's not just something that's going to happen in a nonconforming area. I think a lot of people would think twice about doing that. I was a kid,we used to hunt rabbits right through there,there were no houses between Horton's Point and except for one in through Peconic inlet it was very pleasant then but what the heck nothing stays the same. In the 1960's I ran the Traveler. The fellow who ran that place came to me and said hey the neighbors want to put me out of business. And I said why?And they said I don't know,but they don't like me,and they want to put me out of business. I said that doesn't seem too fair so I got involved in it,I got quite a bit of flack. He stayed in business as a nonconforming thing you know,he sold pieces a few hot dogs and hamburgers,couldn't see anything wrong with that. The business got better,there was Larry Mitchell was there, Arnold you know it sort of grew as it went along. It's doing fine I have no objection to it now except I do get nervous as to what I consider happy hour and I'm walking,and I get a little nervous when the vroom goes by me. But I don't worry too much I'm still pretty lively. My grandchildren I'm a little worried about. They could go over to a place that my brother and I have an interest in and dozens of grandchildren go in and out of that place. They have picnics in the evening. All that makes us worried. I'm not talking about legalities. I'm talking about quality of life and what worries us. That's all thank you. CHAIRMAN: Yes,sir,in the back? Do you solemnly swear the information you are about to give is the truth to the best of your knowledge? ANNETTE MITSCKLEE: My name is Annette Mitscklee and I live on Kenny's Road. My husband and I very often late at night are on Kenny's Road,and we see people coming from the restaurant,which I guess they are allowed to do,and very often they go right through the stop sign on Kenny's Road. There have been many times, now not everybody who comes down that road comes from that restaurant where we've had to get off the road fro fear. I have a 9 year old son who wants to ride his bicycle down there. I'm afraid to let him ride his bicycle down there. You know,when people sit in a restaurant or a lounge until 2 or 3 in the morning,and then they get out and there is no public transportation I would like to know how they can get into a vehicle and drive safely and within the law. That is my concern. It may be a beautiful building,but I'd rather have an ugly building and not have any danger to my family. CHAIRMAN: Do you solemnly swear the information you are about to give is the truth to the best of your knowledge? CHRIS POPPY: My name is Chris Poppy. I'd like to just present a petition to you people. I think you have a copy of it 20 or 30 names- 20-30 residents who live in the area. MR.POPPY: The second thing I would like to say which I don't think anybody has brought up too much is there's a public beach about 100'from this restaurant where kids come down there every. I see 3 little boys pulling a raft during the summer down the center of Kenny's road heading down to Kenny's beach a car came out of that restaurant,spun around the corner,luckily he didn't hit the kids but he came really close. Now you also are going to have the parking in this restaurant according to the Planning Board is barely adequate it's a quarter spot over what he is supposed to have. The people if they have Southold permits are going to park in the beach parking lot. I watch the people in the summer go to the restaurant,go out of the restaurant,open their trunks take their chairs,and go down to the beach. They leave their after having a couple of drinks,all of Southold is going to be hurt by that. It's going to be more crowded,there's going to be more people going to the beach. There's going to be more cars leaving and some kid down there is going to get run over and everybody is going to say you shouldn't have allowed this. The other thing I dust have to say quickly,I have nothing against them fixing up the restaurant,my big concern is I know the Planning Board's problem. I read what the Planning Board recommended they said the parking was barely adequate and they said that they do not recommend variances given to pre-existing buildings in residential areas,but I just took a couple of pictures-this is what the parking looks like in the summer time. Now how are we possibly going to have more,there's no stakes,no room for more cars. You know and more people so they are going to go down to our beach down there which the residents of the whole town of Southold come down there and I think we're going to have more problems and then the town is going to have to clean up after people down there and I know they are going to try to cut the budget down there. It's going to be more and more problems in the area. Thank you. Page 46-Public Hearing November 14, 2002- Regular Meeting Southold Town Board of Appeals CHAIRMAN: Do you solemnly swear the information you are about to give is the truth to the best of your knowledge? State your name for the record please. ARLENE RICHTMAN: I do. Good long evening Chairman and members of the board. My name is Arlene Richtman and I'm the president of the Kenny's Beach Civic Association. The owners of Cliffs restaurant have submitted an application to expand this restaurant once before. Nowhere in this revised site plan do I have that is going to indicate what the addition will stand for. All that is shown is footprints. The original plans were to enlarge the waiting the room and enhance the bathrooms. Now the plans are not only to enlarge the restaurant and the bar as well. They want to totally increase the area by 49.6%. Keep in mind that this is a nonconforming building, nonconforming use in an R-40 district. This restaurant,yes it was a small seasonal shack that catered to the summer patrons with hamburgers and hot dogs. It certainly expanded over the years and recently the current owners have turned it into a year-round business where it wasn't before. How many times is a variance going to be given to alter and to add on a nonconforming building in a nonconforming use in a R-40 district. There are 43 parking spots noted on this site plan,how many spots will the wait staff and the kitchen help occupy? To even suggest on the site plan the overflow of commercial parking on Kenny's beach lot as listed under municipal is outrageous. Zoning Board members to permit any addition will spoil the integrity and character of our neighborhood. And the quality of life as we know it will be destroyed. We the members of the Kenny's Beach Civic Association therefore urge you to deny this petition. Thank you. CHAIRMAN: Thank you. Do you solemnly swear the information you are about to give is the truth to the best of your knowledge? JOHN KASMATIS: John Kasmatis,I live directly across the street from the restaurant. I've lived with the restaurant since 1980,and he's been a pretty good neighbor,but we have to differentiate reality from fiction. First of all the house that learned council said is a million dollars that's being built behind me is a 1200'ranch house on a slab so if that's a million bucks. The parking area of 43 spots overlaps the commercial entrance to the property. If you going to have deliveries,how can you have 2 parking spots in your delivery area. I don't see a dumpster on the plan that's been submitted and again,the municipal parking thing that permit parking by Southold Town rules. Last year we discussed the fact that the town of Southold has no cabaret rules so we don't know from the owner if he's planning live music or juke boxes and we all know from Jhonny's on Rt.48 that sound travels for miles and miles, and you know in Mattituck,churches that have parties are being brought into Town Hall about the quality of life and that's what this is all about. I think the restaurant has a fantastic business in fact if he wants a partner,I'm retiring in 14 months,I'd be more than happy to. The trucks back out of the delivery area and of course damage to my property and adjacent property because they are turning around usually they are big straight jobs and it's kind of hard to turn around in there. We talk about I agree with Mr.Booth it is a very good business and it's sizable investment in the flood area. The other thing somebody said,it's an asset to the community. Well Nassau County is impressively being re-assessed and if you live anywhere near a school or restaurant or any other commercial business you can petition the people that are re-assessing your property to reduce your assessment because it's an adverse impact on your home. Thank you. CHAIRMAN: Do you solemnly swear the information you are about to give is the truth to the best of your knowledge? PATRICIA POPPY: I do. CHAIRMAN: What's your name? MRS.POPPY: I'd like to just read a prepared comment. Owners of the Elbow East restaurant have just added satellite TV apparatus,quick draw and lotto. These are 7-11 and tavern type offerings. Family restaurants do not usually offer this kind of entertainment. It appears the character of this restaurant is being changed. Businesses are important to all residences. They provide service and a tax base and it is a difficult time to run a business. From my place at the end of a runway where I live,I can see that the lot is very,very crowded. Many business owners are residents of the town as well. However the right to own a business should not impede the rights of those who live in a residential area. That is why we are fortunate to have zoning laws that prevent this from happening. The zoning Page 47-Public Hearing November 14, 2002- Regular Meeting Southold Town Board of Appeals laws protected this restaurant by allowing it to exist in a residential area. It was a relief. It was respectfully submitted that the zoning laws should now be interpreted to protect the residents. I do live at the end of the runway, and I'm not asking the FAA to change the flight patterns I'd like them to stay the way they are. Thank you. CHAIRMAN: Do you solemnly swear the information you are about to give is the truth to the best of your knowledge? DONALD JOHN KIRBY JR: Yes I do. Donald John Kirby Jr.I happen to live absolutely 0'from their house borders mine. I'd like to say something about children walking down the street. I drive up and down Kenny's road all the time going to and from work. I have to constantly slow down for people,not walking on the side of the road, walking down the middle of the road,bicycles are required to ride single file to not get in the way of traffic. It happens all the time,you have to keep your eyes out for children it's even a bigger concern especially when you're that close to a beach. You have to teach your children to stay out from the middle of the road. It has nothing to do with people coming out of the restaurant,it has to do with traffic in the middle of the street,it has to do with traffic you're not supposed to walk down the middle of the street. The other thing I'd like to say is I've never seen any of the staff or owners at the Elbow Room deny someone the ability to use the telephone to deny someone to call a taxicab. There is public transportation in Southold. It is not free: Transportation anywhere is not free.You can call a cab at any time whether it be 10:00 at night or 4 in the morning and they will come and get you. Even past that, I've seen the staff personally offer people rides home if a cab was not available. I've never seen any other business do that and take such an interest in the community. Living right next door on the subject of noise. I am literally 60' out their kitchen door and I have never heard so much as a planking dish,screaming or yelling. I'm right there. I'm closer that any other neighbors. I've never heard anything. I hear more noise from children playing at the beach than I do from the restaurant. I think I make more noise myself than all the patrons in the restaurant combined. It's not a concern to me. I can't imagine that people living''/z a mile or 7/10's of mile or a mile and a%i away ever hear anything from that restaurant. Traffic always makes noise. I'd much rather live where I do than Main St. in Greenport. I've never been woken up in the middle of the night by traffic leaving there. The restaurant doesn't open until noon. Early mornings it's not construction in the middle of Manhattan so noise simply is not an issue. Thank you. CHAIRMAN: We are going onto another issue,we'll be back to you in a couple of minutes. We are now going to go onto Mrs.Moore. I'm concluding this hearing until no later than 10 minutes to 11,okay? Mrs.Moore? MRS.MOORE: No,I think all the things have been stated. CHAIRMAN: By the way we are still looking for the sign-in sheet whoever may have it. Stosh can you dust send it up? MR.TUNIS: Mr.Chairman,I appreciate the opportunity to speak again. I don't think that the goals of the applicant and the community are mutually exclusive. I've listened to the neighbors here and I've found them to be with basis. I think their comments are well placed. I think they spoke articulately,and I think they spoke with a sincere heart. I think they like the fact that they like the fact that there is a restaurant here but good people operate this restaurant and I think they would like to see renovated and beautified. I think what they are concerned about is you know, does it get much bigger,does it change in nature,does it become more of a nightclub or a bar And intentional deleterious impacts that could come with than. It's incumbent to everybody to make sure that doesn't happen that mitigation occurs. There's a 13 year history that Mr.Berlinger spoke about. And the 13 years that he's been there,a lot of these things that many of the neighbors are concerned about have not happened. They haven't happened. There's no basis to think that they might happen. I understand their concern,it's incumbent on all of us to try to address that-Mrs.Tortora we had a discussion the last time I was here about conditions and covenants and restrictions. I think and I've spoken to Pat Moore who's a tough and worthy adversary but perhaps I can speak again with her to see about compromises and conditions can be achieved. MEMBER TORTORA: I was going to ask about that because as we all know the current owners,a variance runs with the land,a use variance,and we don't know what's going to happen in the future. Where you are going I like it. Page 48- Public Hearing November 14, 2002- Regular Meeting Southold Town Board of Appeals MR.TUNIS: We can guarantee a future.I had Mr.Berlinger,the owner step up and tell us about the establishment. There aren't cabarets and all night drinking fests,and things of that nature. I don't think anyone would say that it has happened. But I understand that the neighbors are concerned that in the future it might. Or if the restaurant is ever sold that the new ownership might take it differently. But as variances run with the land,so do covenants and restrictions and enforceable,I remember you asked me that question. With code enforcement,back to this board- this board can revoke any relief it grants if there isn't strict adherence and compliance with these conditions with these restrictions. I think reasonable people can sit down and work out compromises so these types of things do not happen to take adequate mitigation. Some of the covenants and restrictions that there should be a discussion about should speak to hours of operation,black splash lighting,a mature landscaping plan,time restrictions on deliveries and things of that nature to insure that it's a sensitive neighbor,but it stays a family type of restaurant and the restaurant that it has been for many,many years. I think this the Town Board if I can analogize if in it's infinite wisdom past legislation that allowed nonconforming uses to expand at a greater rate than 15%,30%if there is adequate landscaping and that the building is made more aesthically pleasing and that there is no restriction how that space can be used. But I would suggest and I will conclude is we all wish to beautify the restaurant. We all wish that it's clapboard and it looks the way it's proposed and with handicap access and bathrooms and lifts and all of that, it will be a much better facility. In the law,it speaks about special circumstances and financial hardships there needs to be some sort of incentive to give my client an opportunity to invest all those monies and seek bank financing to ensure that they get a rate of return to pay back the bank for giving them the money to beautify this and it's just not feasible if there isn't some sort of limited expansion and overall beautification and I think I heard someone say we should interpret these statutes narrowly,let's interpret them fairly. I think everyone will be protected and win out. Thank you very much. CHAIRMAN: Thank you. Mr.Patton? MR.PATTON: I have a question what happens when the prior Planning Board-the Planning Board was a comment was made at the last Planning Board meeting when they granted a prior extension that the Planning Board was supposed to put bushes around the place. It was never done,did the Planning Board ever address that or you people ever address that? CHAIRMAN: We don't address those particular concerns. MR.PATTON: I don't think the Planning Board ever addressed that either. The old owners were supposed to put bushes in and stuff and it was never done. What I'm concerned about is his attorney talks about who's going to enforce this they never enforced the prior thing that was supposed to be done. CHAIRMAN: I assure you the Planning Board does a wonderful job with things in reference to things like that. And they are going to do it this time if anything occurs. Would you raise your right hand. Do you solemnly swear the information you are about to give is the truth to the best of your knowledge? CONSTANTINE DRODROPOLIS: My name is Constantine Drodropolis, 1330 N. Sea Drive,Southold. My understanding of the restaurant business is that the sale of liquor provides the greatest return of profit. I think that needs to be taken into consideration in terms of the expansion of the bar. The floor plan if I remember accurately indicates that the lounge will be adjacent to the bar A very,very,convenient spillover for bar patrons. As Mr. Tunis just indicated,money will have to come from some source to pay for these expansions and I suggest that a great deal of that money will probably come from the sale of liquor. I would also like to call for your attention that in terms of covenants that run with the land,which I agree with Mr.Tunis are certainly enforceable. He was careful not to mention covenants that run with the land that would prohibit live music,jukebox music or any other sort of entertainment that would certainly adversely affect the quality of life in the area. Thank you. CHAIRMAN: One more hand on the west side of the room. You spoke before,sir. JOHN KASMATIS: I'll try not to be too repetitive. I just have a question. John Kasmatis,I'd like to ask the question how does the zoning board enforce covenants? CHAIRMAN: We don't enforce anything,it's done by code enforcement. Page 49- Public Hearing November 14, 2002- Regular Meeting Southold Town Board of Appeals MR.KASMATIS: If there is no code for what the covenant covers like noise and music and live bands. How is it enforced? MEMBER TORTORA: There are conditions. There are a couple of things that he is discussing. Covenants and restrictions and their specific condition. He has just said that he is willing to discuss restrictions,limiting the hours of operation,limiting the impact to the community. As a matter of law,this board is required to address that to listen to him to hear what he has to say,and to enter that into evidence,and I would like him to submit that to us. How that is enforced can either come in the form of a covenant and restriction. It can come in of condition that says if it's not,any board member can inspect it and if it's not enforced,the CO can be ripped right there. CHAIRMAN: In jeopardy. MEMBER TORTORA: So,there area number of ways that this can occur. We are starting to talk about this now, but in fairness to the applicant and fairness to everyone in this room. We should be talking about it. MR.KASMATIS: I agree,but my question is if there is a noise violation,or on a Saturday night when all officials of any town are not available,can somebody call the police in the town of Southold and say issue a noise summons? CHAIRMAN: No. We don't have a noise ordinance. MEMBER TORTORA: But you don't have that for your neighbors either. If your neighbors are playing music at 1:00 in the morning,you do the same thing I do,you call the police and you say hello,it's waking me up,but there is no noise ordinance. So there are certain things we can restrict and certain things that we can look at. But I think we all should look at those things right now and put them on the table. CHAIRMAN: I don't want you to leave thinking that we enforce anything,we don't enforce it. We write it,and it's enforced by somebody else. MR.KASMATIS: You answered my question,thank you. CHAIRMAN: John Nickles,Jr. Do you solemnly swear the information you are about to give is the truth to the best of your knowledge? JOHN NICKLES,JR:Yes it do. John Nickles,Jr. of Southold. I represent the Southold Business Alliance. I'd like to commend the Southold Town Board of Appeals on the job they are doing,unfortunately I think that our town code has made just about everything nonconforming to it's current use. That's a common thing that we find on business properties,and when you look at both schedules and setbacks,you can find other nonconformities. CHAIRMAN: That's why we are so busy,John. MR.NICKLES: That why I'm giving you some credit. The people here that live in the neighborhood,their concerns are valid. I think the track record of this restaurant speaks for itself,and I think that that should be trusted. I think these people are reasonable and they understand the concerns of this community. And if they are willing to talk about covenants and restrictions that run with the land,and in the event that these people are not he owners anymore,and it would restrict the type of activities that are of concern then I think that there isn't a whole lot here to hold back this renovation. I'd dust like to say that I give it my support and as the president of the Southold Business Alliance I think that my board of directors whom I had a meeting with this evening also agree. Thank you. CHAIRMAN: Mr.Tunis can I ask you a question,sir? MR.TUNIS: Yes,sir. CHAIRMAN: In light of the hour,is there any submission that you would like to come forward with regarding those particular conditions that you are alluding to before? I Page 50 - Public Hearing November 14, 2002- Regular Meeting Southold Town Board of Appeals MR.TUNIS: Certainly. I don't think it should be done unilaterally by the applicant. I've asked this board and I have discussed it with council and I've asked this board for some guidance on that. I would be happy to have,and I don't know if it's appropriate,a member of the Town Board,a council of the Town Board,a couple or I'll meet with all of them if they want,but neighbors- CHAIRMAN: Just submit whatever you want. You have the best guidance in the world,he has Southold Coucil here that represents the entire members of the association,so how much better guidance could you have. MR.TUNIS: I will submit a written set of proposed covenants and restrictions that will be in format form that would be the identical covenants and restrictions filed with the county clerk and permanently placed on the deed. Those are enforceable by the town attorney,code enforcement and various other bodies. We spoke about noise ordinances-it's my understanding,my co-council has stated that there are such limitations and legislation passed by the County of Suffolk and police have always been very careful,especially in a residential neighborhood,not to allow an establishment to go unfettered especially if there's a valid complaint on noise. I don't think there has been one in the past. We don't anticipate there will be but,Mr.Chairman I would be happy to sit down with council,we'll come up with some proposed covenants and restrictions,and I'll submit them in writing. I don't hear a lot of these -- covenants and restrictions that would go a long way to addressing or mitigating these potential harmful deleterious impacts these neighbors are stating might occur in the future. It's not our intention. It's not our intention to change what we are. Reasonable restrictions are prudent,proper and we will certainly be providing that and any guidance this board will give to that I think will be very helpful. MEMBER TORTORA: If you were to bring something before the board,I would be interested in hours of operation to prevent it from being a 24 hour. MR.TUNIS: Certainly,I think we have no intention of staying until 4,3,or even 2. The type of business that we have now and in the future does not necessitate it. It's never been done. The bar crowd are people who have had dinner and who go the lounge with their parties and have an after dinner drink,and go home. That is the type of late night business that exists. CHAIRMAN: Remember we are concluding very shortly here. MR.TUNIS: We are happy to provide hours of operation,I'll discuss it with council and- MEMBER TORTORA: Will you also include- MR.TUNIS: I'll discuss it with my client,we'll take a very reasonable position on this. MEMBER TORTORA: If there is a meeting ground,we can find it. MR.TUNIS: I will do so,thank you. CHAIRMAN: This is my suggestion to the board,I am still letting you speak sir,so hold on. We are going to conclude this hearing to no more further verbatim testimony,okay. We are asking you to submit those conditions by Dec. 51h if you would. We will then close the hearing as a matter of right on Dec. 12. And the record will still remain open for anybody who would like to submit a letter to this board. Who either has not spoken tonight or because of this meeting has thought of something that they maybe slept on. Whatever the case may be. I just want to have one discussion,Mr.Berlinger before we leave. Could I just ask you to step up to the mike one more time, Mr.Berlinger? Mr.Berlinger,I've known you for a long time. I in fact went to school with you. You are a little younger than I am. I've known you to be a very upstanding individual. We were in the same school. Anything Mr. Tunis has said tonight regarding your restaurant is the truth,is it not? In other words,you are not changing anything,there's anything but a facelift in this and an increase of the restaurant. MR.BERLINGER: That's right. I can hardly keep my eyes open right now,we have no intentions of keeping the restaurant open until 2 or 3 in the morning. Page 51 - Public Hearing November 14, 2002- Regular Meeting Southold Town Board of Appeals CHAIRMAN: Everything he has said tonight is absolutely correct? MR.BERLINGER: Yes. ` CHAIRMAN: I'm not questioning anything he said,I'm just wanted you to affirm that. MR.BERLINGER: You have my word. CHAIRMAN: This will be the final speaker,by the way. Can you state your name for the record? MONTE SONOMBORN: Monte Sonomborn. CHAIRMAN: Do you solemnly swear the information you are about to give is the truth to the best of your knowledge? MR. SONOMBORN: Yes. I guess really it's a series of questions, I have a home diagonally across from the restaurant,and what strikes me is the restaurant has already expanded dramatically. There is a bar crowd. We hear it in the summer. In terms of economic liability,I don't know how a bank would finance an expansion unless the restaurant weren't already fairly successful. What troubles me,this is not an anti-business issue,but it's an issue of trying to preserve what is a residential neighborhood and I think that's really the issue that I would ask you to consider. CHAIRMAN: Ma'am I've said this is the final testimony,can I ask you please to reduce it to writing because of the hour. I thank you for your courtesy,I thank everybody for everybody's courtesy tonight. This was an extremely courteous hearing tonight. I wish you safe home,and a happy holiday. I make a motion closing the hearing to verbatim testimony and recessing the hearing. End of hearing. Prepared by Jessica Boger from tape recordings. I I r ONING BOARD OFAPPEAL' Town Hall Office 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Email: Linda.KowalskigTown.Southold.n3:.us or Paula.QuintierigTown.Southold.ny.us http://southoldtown.northfork.net (631) 765-1809 fax(631) 765-1823 (alt. 9064) TRANSMITTAL S/(,- 3s-,7-3333 To: 48 DATE: /D / J' /2002 Vb5 REF: Hearing Date: Appl. of_ C fes! 07 Z�eJ (x ) Info attached for your information and review. /J1 l O ,C�s✓ �D Thank you. Pages attached: . i 5�/� "ate S 3`I J °✓� ZONING BOARD 4 'MEW, Town Hall Office ;33 r 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Email: Linda.KowalskikTown.Southold.ny.us or Paula.O uintieri(a,Town.S o u th old.ny.us http://southoldtown.northfork.net (631) 765-1809 fax (631) 765-1823 (alt. 906 TRANSMITTAL To: Jerry, Lydia, George, Ruth, and Vincent DATE: /D / 0 /2002 REF: Hearing Date: _ Appi. of .Lc L ( x ) Info attached for your information and review. M ya',a 02L A 7 Zo z Thank you. - V/� 9 Pages attached: oZ i � Al 4� �� 2_ �4 ,�- ,r �� o Q guFFO`� PLANNIiZG BOARD MEMBERS BENNETT ORLOWSKI,JR. �� �✓,f, P.O. Box 1179 Chairman Town Hall, 53095 State Route 25 361/ _ Southold,New York 11971-0959 X33 WILLIAM DJ.CREMERS ® Telephone (631) 765-1938 3 KENNETH L.EDWARDS y�J®l ��0� Fax(631) 765-3136 MARTIN SIDOR PLANNING BOARD OFFICE TOWN OF SOUTHOLD MEMORANDUM T: Gerard P. Goehringer, Chairman, Zoning Board of Appeals F: Scott Hughes, Senior Environmental Planner-' R: Cliff and Phil's Lobster-House-(Elbow-East) Application # 5051 , dg SCTM #1000-54-5-22 D: 7 October 2002 OCT In general, Planning Board is not in favor of expansion on non-conforming lots. That said, most of the concerns outlined in Planning's memo to ZBA (dated 14 FEB 2002) have been adequately addressed by the applicant. There is still a shortcoming in the amount of landscaping, particularly in what would serve to buffer the site. As a buffer the Planning Board would require a double row of trees at least 6' high. However, still this may cut into the already strained amount of parking spaces. I thank you. I ,ON ING BOARD OF APPEAL,, - Town Hall Office r 53095 Main Road P.O. Box 1179 Q Southold, NY 11971-0959 Email: Linda.Kowalski Town.Southold.n .us or PI luthold.ny.us http://southoldtown.northfork.net (631) 765-1809 fax(631) 765-1823 (alt. 9064) TRANSMITTAL To: Jerry, Lydia, George, Ruth, and Vincent DATE: �� / / /2002 1s�s/ REF: Hearing Date: LI—4 /0 2 Appl. of S ( x ) Info attached for your information and review. 'Z, ( + Thank you. Pages attached: I why — rrc = ; ,d�P$e x r ��" •r f,:r F�.t r'�ti ,h��:`�•��',�r";`,t, +�Sr"s.:,j:i � �a�"y.�',.F';.. .*,;;�,'�E.:!'< � r .`s'-=., �r`� "�� ,_^� �`�•��1>�";�a `ri u� � _ - 1_. �. 4..�- - �':'z.EYS- .��z;;'.' aw,: -:,t., ry;,; ��.2�-,rt`3;�'.: _ •.Y€.��•..��•�-=c- IT .L, fF- a'�i. r- .kir*•. ihr �,5"aen^,° -.S 't"� :i3�2`.. ..,3>, t�q7e..: _ ..^,.; rte• __ - -.�...__�.. ,.,� -- rt. "'•r, .1.-'.-^r'',^n�'-" .,t`..� Q`.G.. - - ;a•-- .9�- a�q_.�•sc..,.. - ,_4e" M` EF. =`zi: y.. `i'`e;`�;,� ``''::�- ;�� - ''�,.. .1�_ _ _ LL�;sr;.:.•� _ - - - '°a�,�?i=",w __ ��,�. _ Vi?tc-'�' _ _ __r,'r�'�;v i`cn;.�•�- - -"`�r'i_ .'�='_ •�.x.�"�..-:-' - >S 3`��ta`�='3}�:�` <'' �:.�, ,t,.m,�' per. �4,�f "°�"q`h • iYT Y^< �",...e,tw � 4�¢�° =,}ow:��, Goahringerand - '���:��°,'€9,��.�� ,�T,•V�:•_ _�,r .�,� oning Board �° Southo d eh,,<�.;..._r• ��:,r�,_.�-�;�;,�:#.;-�t, .. We the undersigned mem - -�, Associ hers of the Y' at'on w Ke ne _ - t i Urge you to den n Y s Beach Civic w Cliii y the a s E16ov�East_Restaur XPansion aPplicatio o ps .: We feel if ant. n f t , °f. _. Permitted to proceed _:s; •<<.` Residential the �Y expansion Resid character of d' xPan on the = area -_ ��-•��, ,. :.. Quality()f life will be great/ di will be ruined and our Thank ou Y minished. Y. for your - �.�°: �: • � } �, ��,:`�-- *• PPort; .n ° YVery truly Yours, ^ 3)� "J. _ it� � l :.. i-,c _ 8.�i,.kz.{`S��Fj"•,pr(•" --lNSMISSION VERIFICATION REPORT TIME 10/08/2002 16:03 DATE,TIME 16/68 16:01 FAX N0./NAME 15163573333 DURATION 00:01:50 PAGE(S) 04 RESULT OK MODE STANDARD ECM i i � S ANSMISSION VERIFICATION R!nip r TIME 10/08/2002 11:52 DATE DIME 10/08 11:51 FAX NO./NAME 15163573333 DURATION 00:00:50 PAGE(S) 02 RESULT OK MODE STANDARD ECM I SOUTHOLD TOWN BOARD OF APPEALS THURSDAY,NOVEMBER 14, 2002 PUBLIC HEARINGS NOTICE is HEREBY GIVEN, pursuant to Section 267 of the Town Law and Chapter 100 (Zoning), Code of the Town of Southold, the following hearing will be held by the SOUTHOLD TOWN BOARD OF APPEALS at the Town Hall, 53095 Main Road, Southold, New York 11971, on Thursday, November 14, 2002, at the time noted below(or as soon thereafter as possible): 8:15 pm Appl. No. 5051 — CLIFF AND PHIL'S LOBSTER HOUSE. (Continued hearing from February 28, 2002). Based on the Building Department's Notice of Disapproval issued November 13, 2001, amended/updated October 22, 2002, applicant requests zoning determinations for: (a) an Interpretation under Article XXIV, Section 100-243 to Reverse the Building Department's determination which states that the proposed addition/alterations to an existing restaurant establishment is not permitted in a Residential R-40 District, or alternatively a Variance authorizing the proposed addition to the existing restaurant, a nonconforming use in a nonconforming building; and (b) a setback variance is also requested under Section 100-244B for an addition to the existing building which will be less than 40 feet from the front property line. Location of Property: Corner of the east side of Kenny's Road and the south side of North Sea Drive, Southold; Parcel 1000-54-5-22. The Board of Appeals will hear all persons, or their representatives, desiring to be heard at each hearing, and/or desiring to submit written statements before the conclusion of each hearing. The hearing will not start earlier than designated above. Files are available for review during regular Town Hall business days (and on 11/14 between 8 and 12). If you have questions, please do not hesitate to call (631) 765-1809. Dated: October 25, 2002. Southold Town Board of Appeals 53095 Main Road P.O. Box 1179 Southold,NY 11971-0959 (tel. 631-765-1809) i OFFICE OF ZONING BOARD OF APPEALS 1 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Emails: Linda.Kowalski@Town.Southold.ny.us or Paula.Quintieri flTown.Southold.ny.us (631) 765-1809 fax (631) 765-1823 or 9064 October 25, 2002 Re: Chapter 58 — Public Notice for Thursday, November 14, 2002 Hearing Dear Sir or Madam: 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. 1) Pursuant to Chapter 58 of the Southold Town Code (copy enclosed), formal notice of your application and hearing must be now mailed with a map or sketch showing the construction area or variance being considered. Send the enclosed Notice CERTIFIED MAIL, RETURN RECEIPT REQUESTED, with a copy of your survey or filed site map, showing the new construction area, or map with details of your request, by Friday, November 1St 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. 2) When picking up the sign, a $30 check, as a returnable deposit, will be requested for each poster with metal stand (or $15 for poster only). Please post the Town's official completed poste r no later than Thursday, November 5t''. Securely place the sign on your property facing the street, no more than 10 feet from the front property line bordering the street. (If you border more than one street or roadway, an extra sign is available for the additional front yard.) The sign(s) must remain in place for at least seven (7) days, and should remain posted through the day of the hearing. If you need a replacement poster board, please contact us. 3) By November 51h, please either mail or deliver to our office your Affidavit of Mailing (form enclosed) with parcel numbers noted for each, and return it with the white receipts postmarked by the Post Office. (Also, when the green signature cards are returned to you by the Post Office, please mail or deliver them to us before the scheduled hearing, if possible.) If any signature card is not returned, please advise the Board at the hearing and return it when available. These will be kept in the permanent record as proof of all Notices. 4) By November 7th, after the signs have been in place for seven (7) days, please submit your signed Affidavit of Posting to our office. If you do not meet the deadlines stated in this letter, please contact us promptly. Thank you for your cooperation. Very truly yours, Enclosures Zonings Appeals Board and Staff P.S. Please be sure to pick up the poster between Oct. 26t and Nov. 6th, between 8-12, or 1:30-3:30. Thank you. ' a Y FORM NO. 3 _-- t NOTICE OF DISAPPROVAL -- DATE: November 13, 2001 AMENDED: November 14,2001 AMENDED: October 21,2002 TO: Elbow East PO Box 985 Southold,NY 11971 Please take notice that your application dated November 6, 2001 For permit to make additions and alterations to an existing restaurant at Location of property 50 North Sea Drive, Southold County Tax Map No. 1000 - Section 54 Block 5 Lot 22 Is returned herewith and disapproved on the following grounds: The proposed addition/alteration to a non-conforming building with a non-conforming use on a 21,932 1 square foot loy in the R-40 District, is not permitted pursuant to Article XXIV Section 100-243 which states; "A non-conforming building containing a nonconforming use shall not be enlarged reconstructed or structurally altered or moved, except as set forth below, unless the use of such building is changed to a conforming use." A restaurant os not a permitted use in the Residential R-40 District pursuant to Article IIISection 100- 31A. In addition, the proposed addition to an existing non-conforming building notes a front yard setback of +/-21 feet,maintaining the existingyard setback. Therefore the proposed addition/alteration is not permitted pursuant to Article XXVI, Section 100-244 which states that non-conforming parcels 2 less than 20,000 square feet in total size, require a front yard setback of 35 feet. Total lot coverage, following the proposed addition willbe less than 20 per t. .l Authorized Signature Note to Applicant: Any change or deviation to the above referenced application, may require further review by the Southold Town Building Department. CC: file, Z.B.A. FFOL,r PLANNING BOARD MEMBRks' BENNETT ORLOWSKI,JR. �� G.y P.O. Box 1179 Chairman C Town Hall, 53095 State Route 25 WILLIAM J. CREMERS y = Southold, New York 11971-0959 / Telephone (631) 765-1938 i KENNETH L.EDWARDS O � .F P GEORGE RITCHIE LATHAM,JR. Fax(631) 765-3136 RICHARD CAGGIANO ��,� Ar �a PLANNING BOARD OFFICE TOWN OF SOUTHOLD To: Jerry Goehringer, Chairman, Zoning Board of Appeals From: Bennet Orlowski Jr., Chairman, Planning Boa - U Re: Cliffs Elbow East Appeal# 5051 SCTM: 1000-54-5-22 Date: February 14,2002 The Planning Board reviewed this matter at its Work Session on Feb. 11,2002, and offers the following comments: Various elements of the previously approved Site Plan dated March 21,1988 were never completed, or vary from the plan,particularly with regard to parking, buffering and landscaping. Existing landscaping does not adequately buffer the site, currently used as a resturant,and the current ZBA application does not address this problem. The proposed addition will exacerbate the parking on the site, which does not have clearly marked stalls or Handicap locations. Access from Kenny's Road is problematic, since it is unclear where the road ends and the parking lot begins . The Planning Board is concerned about these critical items, and requests that an amended Site Plan application be filed while the ZBA continues is deliberations. s +w NOTICE OF PUBLIC HEARING SOUTHOLD TOWN BOARD OF APPEALS THURSDAY, FEBRUARY 28, 2002 NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and Chapter 100 (Zoning), Code of the Town of Southold, the following application will be heard at a public hearing by the SOUTHOLD TOWN BOARD OF APPEALS at the Town Hall, 53095 Main Road, Southold, New York 11971, on THURSDAY, FEBRUARY 28, 2002, at the time noted below (or as soon thereafter as possible): 7:45 p.m. Appl. No. 5051 — CLIFF AND PHIL'S LOBSTER HOUSE/RESTAURANT. Based on the Building Department's Notice of Disapproval issued November 14, 2001, amended February 13, 2002, applicant is requesting: (a) an Interpretation under Article XXIV, Section 100-243 to Reverse the Building Department's determination which stated that the proposed addition/alteration to an existing restaurant establishment is not a permitted use in the residential R-40 District, or alternatively a Variance under Section 100-243A authorizing the proposed addition to the existing restaurant, a nonconforming use in a nonconforming building; and (b) a Variance under Section 100-244B to locate the proposed addition maintaining the same nonconforming setback at less than 35 feet from the front property line; and (b) a Variance under Section 100-244B for a total lot coverage in excess of the code limitation of twenty (20) percent of the total lot area. Zone District: R-40 Residential. Location of Property: Corner of the East Side of Kenney's Road and the south side of North Sea Drive, Southold; County Tax Map Parcel 1000-54-5-22. The Board of Appeals will hear all persons, or their representative, desiring to be heard at the hearing, or desiring to submit written statements before the conclusion of this hearing. This 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 (631) 765-1809. Dated: February 14, 2002. GERARD P. GOEHRINGER, CHAIRMAN SOUTHOLD TOWN BOARD OF APPEALS Town Hall 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 � C , COMPLETE /N COMPLETE THIS SECTIONON DELIVERY ■ Complete items 1,2,and 3.Also complete A. eived by(Please Print Clearly) B. Date De ery item 4 ifRestricted Delivery is desired. co A-IA" ■ Print your name and address on the reverse C Signatur so that we can return the card to you. \ / Agent ■ Attach this card to the back of the mailpiece, X ' or on the front if space permits. Addressee D. Is delivery address different from item 19 El Yes 1 Article Addressed to: If YES,enter delivery address below. ❑ No Monroe R. &Beverly s Sonnenborn 3. Servp"pe 79 West 12th Street,Apt. 14F 10-Certified Mad �❑ Ex ss Mad .__NPW York_NX__1_QOl.l _ : ❑ Registered ILa'Return Receipt for Merchandise ❑ Insured Mad ❑C O D. 4. Restricted Delivery (Extra Fee) ❑Yes 2. icle Number(Copy from service label) PS Form 3811,July 1999 Domestic Return Receipt 102595.00•M-0952 UNITED STATES POSTAL SERVFirst,Class lltlail Pos4age_&Fees Pai USPS m Permit No G=10 r v VA. L r •sSe M as nt your name,,address, and ZIP+4 in this box • $ � pr RMN,RADLER LLP _ EAB PLAZA UNIONDAM NY 11556-0111 2 I ■ Complete items 1,2,and 3.Also complete A Received b lease Pr Dat livery item 4 if Restricted Delivery is desired. !1l1L� ■ Print your name and address on the reverse so that we can return the card to you. C. Signature ■ Attach this card to the back of the mailpiece, ❑Agent X V or on the front if space permits. ❑Addressee D. Is delivery address different from item 1? ❑Yes 1. Article Addressed to: If YES,enter delivery address below: ❑ No i Elliot Paskoff&Wife 21 West Street,Apt. 15-A 3. Service e New York,NY 10006 ertified Mail ❑ Exp ss Mail © Registered eturn Receipt for Merchandise ❑ Insured Mail ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. PSI 102595-00-M-0952, UNITED STATES POSTAL SERVICE First-Class Mad Postage&Fees Paid USPS Permit No. G-10 • Sender: Please print your name, address, and ZIP+4 in this box • R-WW,RADLER LLP EAB PLAZA UNIONDALE,NY 11556-01Y dfss�efest;lssfslsJslsesjelest�,,,�iset 11AW u' !F`iF9x�i�C-7�-(-7- & ■ Complete items 1,2,and 3.Also complete :A Signat re' ' item 4 if Restricted Delivery is desired. gent ■ Print your name and address on the reverse 1604Addressee- so that we can return the card to you. B. Received by(Prn d Name) C. to of eliv ry ■ Attach this card to the back of the mailpiece, /J/ ]y� ��,� � or on the front if space permits. ✓UIP J6 D. Is delivery address different from item 1? ❑Yes 1. Article Addressed to: If YES,enter delivery address below: ❑ No Paul &Mary Stetz 270 North Sea Drive 3. Serve Type Southhold,NY 11971 ertified Mail ❑ Express Mail ❑ Registered eturn Receipt for Merchandise ❑ Insured Mail ❑ C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. ran Number (Transfer !� �� ( fer from se ce label PS Form 3811,August 2001 Domestic Return Receipt 102595-01-M-Opki A UNITED STATES POSTAL SERVICE First-Class Mail Postage&Fees Paid USPS I Permit No G-10 .p • Sender: Please print your name, address, and ZIP+4 in this box • RWM9 RADLER LLP EAB PLAZA UNIONDAL,�, 11556.0111 ZZ.7 ?i a Frvtj' iieiii�iiiiiteeri,:ii}titz�•iiaiiiititiitYvii•rsiif�»iii ■ Complete items 1,2,and 3.Also complete A Si n item 4 if Restricted Delivery is desired. ❑Agent ■ Print your name and address on the reverse Addressee so that we can return the card to you Receive by yP ted Name) ate f Del very ■ Attach this card to the back of the madpiece, / � [��� or on the front if space permits. D. Is delivery address different from item 1-7 El Yes 1. Article Addressed to. If YES,enter delivery address below- ❑ No i - John V. Kassimatis 46 Mulberry Avenue 3. Service-Type j Garden City,NY 11530 016ertified Mad �❑ ExE ss Mad ❑ Registered Z- eturn Receipt for Merchandise ❑ Insured Mad ❑C.O D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number /� V_.,q (Transfer from service label) O PS Form 3811,August 2001 Domestic Return Receipt 102595-01-M-0381 UNITED STATES POSTAL SERVICE First-Class Mail Postage&Fees Paid USPS Permit No. G-10 •,Sgnder: Please print your name,•address, and ZIP+4 in this box • RIVMt RADLER LLP EAB PLAZA UNIONDALE,NY 11556-001 ■ Complete items 1,2,and 3.Also complete Q S( u e item 4 if Restricted Delivery is desired. ° Agent ® Print your name and address on the reverse / ddressee so that we can return the card to you. g. R ce d b C. D'te of Delivery ■ Attach this card to the back of the mailpiece,� ,j' , e or on the front if space permits. (/ _ _ { D Is delivery address different frj�rti ?( 1' 1 Article Addressed to: If YES,enter delivery addr s& No °s ED Orestes Valvitsiotes &Wife i\` "Tbi 25 Irvington Place 3. Servic Type Vs'9 Brooklyn,NY 11230 entified Mail E❑� Express Mail - 13 Registered Munn Receipt for Merchandise ❑ Insured Mail ❑ C O D 4 Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number `�� �' (transfer from se ce label) G' PS Form 3811,August 2001 Domestic Return Receipt 102595-01-M-0381 UNITED STATES POSTAL SERVICE i First-Class Mail Postage&Fees Paid USPS Permit No.G-10 • Sender: Please print your name, address, and ZIP+4 In this box • R MOs ROUR LLP EAB PLAZA . UNTONDALE,NY 1111��l tCOMPLETE • • e s • 417,ia' ■ Complete items 1,2,and 3.Also complete A. ig ature item 4 if Restricted Delivery is desired. ❑Agent ■ Print your name and address on the reverse ❑Addressee so that we can return the card to you aiv by ed Name) C. Date of Delivery ■ Attach this card to the back of the mailplece, or on the front if space permits. a.o99R D. del iv �ddress�l�f{e're\ item 19 13 Yes 1. Article Addressed to: aYE4SnterdeliveR addr s elow. ❑ No �Louis &Andreta Stylianov & �`'� Athanasiados Nesping 59 Omaha Street 3. Serve ype Dumont,NJ 07628 ertified Mail 1❑ Egress Mad 13Registered Q'Return Receipt for Merchandise ❑ Insured Mail ❑ C O.D 4 Restricted Delivery?(Extra Fee) ❑Yes 2. Article Numbeat, a _ D (Transfer from se bel)^ I C '' PS Form 3811,August 2001 Domestic Return Receipt 102595-01-M-0381 UNITED STATES POSTAL SERVICE First-Class Mail Postage&Fees Paid USPS Permit No. G-10 • Sender: Please print your name, address, and ZIP+4 in this box • RIVKIN,RADLER LLP EAB PLAZA UNIONDALE,NY 1 6-0111 SENDER:COMPLETE THIS SECTION ■ Complete Items 1,2,and 3.Also complete A. Signatu e item 4 if Restricted Delivery is desired. ❑Agent ■ Print your name and address on the reverse X ddressee so that we can return the card to you. B. ceived by(Pr d Name) C. Date of Delivery ■ Attach this card to the back of the mailpiece, or on the front if space permits. D. Is deliveryCO�M�i ' a r item 1? 1. Article Addressed to: — If YES,a P sib ❑ N ! Town of Southhold NOV 2002 53095 Route 25A 3. Service��iy ��r 1) ail Southhold,NY 11971 El Certifie , �❑ x�eta� ❑ Registered ❑ eturr"1-Receipt for Merchandise ❑ Insured Mail El C O.D 4. Restricted Delivery?(Extra Fee) ❑Yes 2 A rt i c I e N u m b e r ,�l� �c�Ct�O -GIQ�,C (Transfer,from service la e/) r ; g -f ' - _ 102595.01-M-0381 UNITED STATES POSTAL SERVICE First-Class Mail Postage&Fees Paid USPS Permit No.G-10 • Sender: Please print your name, address, and ZIP+4 in this box • i RIVW RADLER LLP EAB PLAZA UNIONDALE,NY 11556- 1.11 y4► 9o • •u• • •i ► I9x�' ■ Complete items 1,2,and 3.Also complete A.Aignaiure item 4 if Restricted Delivery is desired. Agent ■ Print your name and address on the reverse ❑Addressee so that we can return the card to you. B cenred by(Punted Name) C. gate of Delivery ■ Attach this card to the back of the mailpiece, or on the front if space permits. D Is delivery address,different from item 1? ❑Yes 1. Article Addressed to, If YES,enter delivery address below ❑ No .I Dan&Janine Faurell y 9 Woodhill Road 3. SS ce�Type l!d"Certified Mail 11 E/press Mail Smithtown,N�' 117$7 _ ❑ Registered LATReturn Receipt for Merchapdise ❑ Insured Mail ❑C O.D 4 Restricted Delivery?(Extra Fee) ❑Yes 2 Article Number , <-/,(Transfer from sef�e/9el)1 1 j j { j[i I i i i I I IIi_ ( if 1 jj { [qi PS Form 3811,August 2001 Domestic Return Receipt 102595-01-M-0384 UNITED STATES POSTAL SERVICE 9 First-Class Mail ° 'bSPS a&Fees Paid P�fmit No.G-10 • Sender: Please print your name, addres anc�-ZIP+4 in h' box • a`ty��• �Q� RWWq RADLER LLP EAB PLAU ' UNIONDALE,NY 115564111 '� 1ti i SENDLIRI: COMPLETE THIS SECTION "WROW ■ Complete items 1,2,and 3.Also complete A. Sig a e item 4 if Restricted Delivery is desired. ❑Agent ■ Print your name and address on the reverse ❑Addressee so that we can return the card to you B Re eive Pin d Name) C D e o Delivery ■ Attach this card to the back of the mailpiece, or on the front if space permits. ///-Z/ v D s dr s different from item ? ❑Yes 1. Article Addressed to* Ems_ �e__e d �yZ� ddress below: ❑ No N(�V Christopher&Patricia Poppe CU/j, 36 Fenimore Street 3 IService Type Lynbrook,NY 11563 Certified ail® CIA/press Mail - �eg s Bred a urn Receipt for Merchandise ❑Hn�ad ❑C O.D 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number 3/,2-2 (Transfer froiaferOl PS Form 3811,August 2001 Domestic Return Receipt I 102595-01-M-0381 ,ry.. �e zdOv UNITED STATES POSTAL E First-Class Mail Postage.&Fees Paid- . USPS - Permit No.G-10 • Sender: Please print your name, address, and ZIP+4 in this box • RWM9 RADLER LLP EAB PLAZA UNIONDAIA NY 11556011 II,I,If I,I„II„II,,III fill,,II,,lilt fill),,III►„II SENDER: • • •u• •� •i • �a' ■ Complete items 1,2,and 3.Also complete A. Received by(Please Print Clearly) B. Date of Delivery item 4;f Restricted Delivery is desired. ZIA ■ Print your name and address on the reverse so that we can return the card to you. C. Signature ■ Attach this card to the back of the madpiece, X ❑Agent or on the front if space permits.'- _ _ Addressee D Is delivery Qore4 different from item 1? ❑Yes 1. Article Addressed to: If YES,enter delivery address below: ❑ No I Carol Spinelli 103 Parkway Drives 3. Servide Roslyn Heights,NY 11530 91-6ertifled Mad ❑ Exp ss Mail ------- -------- - - - -- -- 11 Registered eturn Receipt for Merchandise ❑ Insured Mail ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number(Copy from service labeo PS Form 3811,July 1999 Domestic Return Receipt 102595-00-M-0952 UNITED STATES POSTAL SERVICE First-Class Mail Postage&Fees Paid USPS Permit No G-10 • Sender: Please print your name, address, and ZIP+4 in this box • RMN,RADLER LLP EAB PLAZA UMONDALE,NY 11556-0111 COMPLETE • •u• •� s. • �PI �' ■ Complete items 1,2,and 3.Also complete A Received by(Please Print Clearly) B. D to o De ery item 4 if Restricted Delivery is desired �r"�,yjYyrm��+ % ■ Print your name and address on the reverse so that we can return the card to you C. Signature _ ■ Attach this card to the back of the mailpiece, X 1 ❑Agent or on the front if space permits. � '` 'Yiii/� ddressee D Is delivery address different Trom item V U Yes 1. Article Addressed to If YES,enter delivery address below. ❑ No John&Katherine Katramados 46-34 Iris Lane 3. rSe TypeGreatNeck,NY 11020 ifiedMad ❑ E re ss Mail istered eturn Receipt for Merchandise ❑ Insured Mail ❑C O D. 4 Restricted Delivery?(Extra Fee) ❑Yes 2 Articlp Number(Copy from service label) 1,7 PS Form 381 1,July 1999 Domestic Return Receipt 102595.00-M-0952 UNITED STATES POSTAL SERVICE'; f ,•--„ate c,.;-r, Irs�;,-a$s,Mail r, Postage&Fees Paid -USPS f• / d ,� ,Sender: Please print you am6, address'and ZIP+4 jn this•box • RMA RADLER LLP EAB PLAZA IJ ONDALE,NY 111556-0111 1 '� 11111111111111111111111111111 till 1III fill 111111111,Iilill 11111 _ � � o •1�• � s� �K�7u• UJL�7J/�7�MIr/tea' ■ Complete items 1,2,and 3.Also complete A. Received by(Please Print Clearly) B. Date of Delivery item 4 if Restricted Delivery is desired. ■ Print your name and address on the reverse so that we can return the card to you. C nature ■ Attach this card to the back of the mailpiece, ❑Agent <5� or on the front if space permits. ❑Addressee D. Is deliv di m item 1? 11 Yes 1. Article Addressed to: If YES BB ow. ❑ No Paul &Mary Stetz Nov 13 2002 21 Magnolia Avenue 3. Service ype� ertiE. as Larchmont,NY 10538 fi `❑_ ❑ Registered -n'Receipt for MerchandiSe ❑ Insured Mail ❑-C O D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2 Article Number,(Copy from service label) PS Form 3811,July 1999 Domestic Return Receipt 102595-00-M-0952 UNITED STATES POSTAL SERVICE First-Class Mail Postage&Fees Paid USPS Permit No.G-10 • Sender: Please print your name, address, and ZIP+4 in this box • RWM9 RADLER LLP _ EAB PLAZA UNIONDALA NY 11556.0111 i _. �: _ f,„lf►„l!,l,i„!,!„lf„If,,,,,,lf,,,lf,,,llf,1„f ,f y ZONING BOARD OF APPEALS -TOWN OF SOUTHOLD:NEW YORK In the Matter of the ApplicationAFFIDAVIT of I I r� r-F -0� rs L Ls+n--- H 5� OF SIGN (Name of Applicant) POSTING Regarding Posting of Sign upon Applicant's Land Identified as 1000- - - x COUNTY OF SUFFOLK) STATE OF NEW YORK) I, N�r-Fo Y � K,6"residing at (25���c-cow 7c wcs�� , New York, being duly sworn, depose and say that: On the l S�day of 200 .1 personally placed the Town's official Poster, with the date of hearing and nature of my application noted thereon, securely upon my property, located ten-(10)feet or closer from the street or right-of-way(driveway entrance)-facing the street or facing each street or right-of-way entrance;*and that hereby confirm that the Poster has remained in place for seven days prior to the date of the subject hearing d whi ring date was shown to be _0 Ov . 11-4 Y) WO-L- Ir. (Signature) Sworn to before me this day of A~Ak, 200-x,- - (Notary Public) SARAN��,,sg3tta�tteeVolk NoteryNo 013CE IST—W Quaiifiad in Sutf �o�M► Term Expires June 3, *near the entrance or driveway entrance of my property, as the area most visible to passersby. Date: November 8, 2002 Southold Town Zoning Board of Appeals Main Road Southold, New York 11971 Re: Elbow East Addition / Renovation Submitting one sign affidavit as required for sign postings. Thank , T. Rutkowski Elbow East t LEGAL NOTICE STATE OF NEW YORK) Nov - � SOUTHOLD TOWN BOARD OF APPEALS )SS: THURSDAY, CQ OSUFF LK) NOVEMBER 14,2002 / PUBLIC HEARINGS ® / �6of Mattituck, in said NOTICE is HEREBY GIVEN,pur- I county, being duly sworn, says that he/she is suant to Section 267 of the Town Law I Principal clerk of THE SUFFOLK TIMES a week) and Chapter 100 (Zoning), Code of p y the Town of Southold,the following newspaper, published at Mattituck, in the Town of hearings will be held R the Southold, County of Suffolk and State of New York SOUTHOLD;TOWN'BOARD-OF tY � APPEALS at the Town Hall,53095 and that the Notice of which the annexed is a printed Main Road, Southold, New York 11971, on Thursday, November 14, copy,has been regularly published in said Newspaper � 2002,at the times noted below(or as once each week for weeks succes- soon thereafter as possible): sive) commencingon the J' da WEST.ni mai A�°516o L] �M Of y� �li�� 20MC l y TV.(Continued Varianc' over from September earing,carry_ based' Pt'OPosed-are 29. 2002), ations to (1)additions and alter- , July i an existing 0 feet A�Princ�ipa ��l Clerk for � 'setbacks at less than 10 feet on one and pside and less than 25 ft.total side set- / dwelbacks, (2) an accessory E loca less than three feet from building at G Sworn to before me this ty line, m to grope _ day of d/• 20 Proper- the (3) total lot covers a for all a sini buildings in excess of the code li both, tion of 20 percent. n of ProfProperty; 425 Location of Grei-Mattituck;Parcel 1 Miriam Road, ' 6:50' 8'15 P.m. A X0-99-1-31. LAURA E. BONDARCHUK AND P ppl• NO 5051 — CLIFF Notary Public, State of New York and Continued S LOBSTER HOUSE. No 01806067958 req hearing from February Qualified.in Suffolk County 1 28, 2002 D ll DepartmenBased s N t on the Dice of Disapproval My Commission Expires Dec.24, 20� s Dir issued November 13, 2001 pP1Oval _ str ed/updated October 22, amend- 2002, I exii cant requests zonin d aPPli- , - locc,Article) an Interpretation under I fr ! XXI ,, Section 100=243 to 101 Reverse the Building 14' determination whichtastes thatethe 7c� proposed addition/alterations to an ark existing restaurant establishment is 1 re not Permitted in a Residential R-40 1, District, or alternative) authorizing the propose y a Variance the existin p posed addition to 3 s� nonconfor g restaurant, a ming use in a nonconform_ - -7 Ing building;and (b) a setback vari- ance , ance is also requested under Section 100'244B for an addition tothe exon Ing building whichwill be less than ` feet from the front 40 property line. Location of P,rgpertY.Co east side of Krner of the enny's Road and the south side of North Sea Drive, I Southold;Parcel 000-54- Th - The Board of Appea 5 22. or th persons, is will hear_all desiring to eir.representatives, II be heard at each hearing, and/or desiring to submit written } statements before the concluon of p each hearingsi , Each hearing will not start earlier than desi Files are available for review during 11egular Town Hall business IfrOtn;8:00 a. da s I have questions pl ase do ) If e u n tate to call(631)765-1809, ot hesi- Dated:October 28,2002 Southold Town Bo ` . 53095 Main and of Appeals Road,PO•Box 1179 Southold,Ny 11971.0959 -1 (te1.631-765-x809) ZONING BOARD OF APPEALS TOWN OF SOUTHOLD.NEW YORK -------------------------------------------------------x In the Matter of the Application of AFFIDAVIT Cliff and Phil' s Lobster House OF (Name of Applicants) MAILINGS CTM Parcel #1000- 54 - 5 - 22 -----------------------------------------x COUNTY OF SUFFOLK) STATE OF NEW YORK) ! I, Matthew G. Hughes residing at 17 Boulevard Avenue, i Greenlawn , New York, being duly sworn, depose and say that: On the 7.st day of November 200-, I personally mailed at the United States Post Office in Uniondale , New York, by CERTIFIED MAIL, RETURN RECEIPT REQUESTED, a true copy of the attached Legal Notice in prepaid envelopes addressed to current owners shown on the current assessment roll verified from the official records on file with the (✓) Assessors, or ( ) County Real Property Office , for every property which abuts and is across a public or private street-or vehic r right-of- way of record, surrounding the applicant's prope . '( ignatu Sworn to before me.this l���daY f Al._WmC. 1 , 200, r r LIZA MARTIN Y PUBLIC, state of Now York ( otary Public) No. o1MA4906317 6ualified in Nassau County Commission Expires September 21,20 OJ 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. Name Lot Number Orestes Varvitsiotes &Wife 1000-54.4-36 25 Irvington Place Brooklyn,NY 11230 John V. Kassimatis 1000-59.1-23.1 46 Mulberry Avenue Garden City,NY 11530 Paul&Mary Stetz 1000-54.5-50 270 North Sea Drive Southhold,NY 11971 Christopher&Patricia Poppe 1000-54.5-51 36 Fenimore Street Lynbrook, NY 11563 Louis &Androula Stylianou 1000-54.5-53 &Athanasiades Nesping 1000-54.5-54 59 Omaha Street Dumont,NJ 07628 Dan&Janine Faurell 1000-59.1-23.2 9 Woodhill Road Smithtown,NY 11787 Town of Southhold 1000-54.4-2 53095 Route 25A Southhold,NY 11971 John&Katherine Katramados 1000-54.4-37 46-34 Iris Lane Great Neck,NY 11020 Elliot Paskoff&Wife 1000-54.4-4 21 West Street, Apt. 15-A New York, NY 10006 Monroe R. &Beverly Sonnenborn 1000-54.4-5 79 West 12th Street, Apt. 14F 1000-54.4-21 New York,NY 10011 Paul &Mary Stetz 1000-54.5-50 21 Magnolia Avenue Larchmont,NY 10538 Carol Spinelli 1000-59.1-23.2 103 Parkway Drive Roslyn Heights,NY 11530 FADOCSOPENOUGHES W 1647470 v1-CUFF/UST OF NAMES til���1>�Ya-ra� K I11I0e1*91A1a (Domestic Mail Only; No Insurance Coverage'-�fie Er rri a /-/- -/ Postage $ OVA &0 oe Ln Certified Fee Return Receipt Fee 0 re(Endorsement Required) \ 1q O Restricted Delivery Fee E:3 (Endorsement Requ red) {. O Total Postage&Fees rti m Monroe R. &Beverly Q- sty Sonnenborn jjjI 79 West 12th Street,Apt. 14F •---------------- 1 MIJIMOMM P— - M Ln a Postage $ �Ln,, Certified Fee Retum Receipt Fee to ' He (Endorsement Required) O Restricted Delivery Fee C3 (Endorsement Required) O Total Postage&Fees rl-I ti Name(Please Print Clearly)(To be completed by mailer) M Carol Spinelli I. s« o- 103 Parkway Drive o cit, NY 11530 --------------- Roslyn Heights, U.S-Postal SLrvii-7--p CERTIFIED MAIL RECEIP-. D.mestic Mail Only; No,insurance CoveragE . - Postage $ �%0 NV` eB�v ow.Ln Certified Fee Return Receipt Fee 1 Postm (Endorsement Required) C32aa2 He O Restricted Delivery Fee a (Endorsement Required) s 0 Total Postage&Fees $ ���� 1 ru 1 IL Name-Mlease Print Clearly)(To be completed by mailer) m Paul &MaryStetz -- ------------- o-! � sn 21 Magnolia Avenue rr%-,M1 C1t ', Larchmont,NY 10538 I• • �• .-. N t: li7CY�iI�L., ru 1171-- Postage $ �13 U7 Certified Fee Postmark IM ReturnReceipt Fee N� ere O (Endorsersement Required) E- � O Restricted Delivery Fee O (Endorsement Required) coO M Total Postage&Fees $ 1 RJ rU Name(Please Print Clearly)(ro be comcmall — M sl; Elliot Paskoff& e UgEr Q )r 21 West Street, Apt. ree - Im �« ---------------- New York,NY 10006 •. • . .-. CO rq P- Postage $ Ln Certified Fee Retum Receipt Fee 1 � O (Endorsement Required) re O Restricted Delivery Fee p (Endorsement Required) Total Postage&Fees $ 111 rU Name(Please Print Clearly)(To be completed by mailer) M Er sti Town of Southhold --_-------------- o' 53095 Route 25A M cit ----------------- r%- Southhold,NY 11971 SKMA wompi .�- Ln /ld-/ N Postage $ �n vyQ Ln Certified Fee Ostmark Return Receipt Fee Hers O (Endorsement Required) O Restricted Delivery Fee p (Endorsement Required) C3 Total Postage&Fees s rLj nJ Name x1-10 Irn ha cemelefed by Meller) '''1 John &Katherine Katramados _______________ Er sae 46-34 Iris Lane -------------- o 6W; Great Neck,NY 11020 N ru Er r-� Postage $ Ln Certified Fee �Pp tmark Return Receipt Fee �� oy � { re (Endorsement Reqwred) q i� O Restricted Delivery Fee ) O (Endorsement Required) 0 Total Postage&Fees $ ru rU Name(Please Print Clearly)(To be completMW M - - Dan&Janine Faure ll -----___----_- Q- 9 Woodhill Road r�. city Smithtown,NY 11787 -------------- , . '1wUV See Reverse for Instructionsf CERTIFIED MAIL RECEIP11 (Domestic mail • . insurance CoveragAm CO Postage $ �YOy Ln Certified Fee n P tm ReturnReceipt Fee Her O (Endorsement Required) a S'ps O Restricted Delivery Fee �J I] (Endorsement Required) 0 Total Postage&Fees [$ ru rU Name/P/aaan Prtnf r�ee.r.n rr�,.__ --•- --••_ M John V. Kassimatis --------------- 1 si;E 46 Mulberry Avenue Ir city Garden City,NY 11530 r- - er- - - r unt= Ir Postage $ Ln Certified Fee 1 P Return Receipt Fee � e (Endorsement Required) O O Restricted Delivery Fee C3 (Endorsement Required) y r �9 0 Total Postage&Fees Is U RJ nJ -game!P_leaca Prinf_Clned..'rr.-----•_.��_—..—• rr► Louis&Androula Stylianou& Ir Strei Athanasiados Nesping Er M 59 Omaha Street - arry, Dumont,NJ 07625 _ _--j- M � Postage Ln Certified Fee 1 Return Receipt Fee �ost ads O (Endo(sement Required) re E3 Restricted Delivery Fee np 0 (Endorsement Required) V� 0 Total Postage&Fees .$ Rl SLI Name(Please Print Clearly)(To be completed by mailer) "' -__---_--. Orestes Varvitsiotes &Wife Street;. --------- Er25 Irvington Place M City,Sta Brooklyn,NY 11230 rU ru .-q 7-e ` t7 M Postage $ Ln -I- Certified Fee Qc � os ark Return Receipt Fee V C:3 (Endorsement Required) ^ �� Q Restricted Delivery Fee r3 (Endorsement Required) ,v CJ Total Postage&Fees ru rU Name(Plea..0"-# — — m Christopher&Patricia Poppe s:�eei,a, 36 Fenimore Street d ry,-siai� ci Lynbrook NY 11563 Imo- - PS Form 3800,July 1999 See Reverse for Instructions- t ��Pi1C7[SY7'iii-[c ra M Postage $ Ln Certified Fee Return Receipt Fee J� ostmark C3 (En Required) A D Here C3 Restricted Delivery Fee (Endorsement Required) �C Total Postage&Fees $ E3 `�' - 1� ru rU Name(Please Print Clearly)(To be complet8dtAy-jpall6r)- M Paul &Mary Stetz ______________ Q- Stre: 270 North Sea Drive Ir C3 city;- Southhold,NY 11971 RIVKIN L L P RADLER 1330 NORTH DUTTON AVENUE EAB PLAZA 275 MADISONAVENUE SUITE 200 NEW YORK NY 10016-1101 SANTA ROSA, CA 95401.4646 UNION DALE, NEW YORK 11556-0111 (212) 455-9555 (707) 525-5400 (516) 357-3000 THE ATRIUM FAX (516) 357-3333 47 MAPLE STREET•THIRD FLOOR www rivklnradler com SUMMIT, NJ 07901-2505 (908) 609-2200 DIRECT DIAL (516) 357-3444 November 5, 2002 VIA REGULAR MAIL Town of Southold Zoning Board of Appeals 53095 Main Road _ Southold,New York 11971-0959 Attention: Linda Kowalski Re: Cliff and Phil's Lobster House (ZBA#5051) RR File No.: 700788-00001 Dear Ms. Kowalski: This law firm represents Cliff and Phil's Lobster House. Enclosed please find an affidavit of mailing, along with white receipts postmarked by the Post Office as proof of mailing to the surrounding property owners of the November 14, 2002 Zoning Board of Appeals hearing. Upon receipt of the green signature cards, I will forward them to the Zoning Board of Appeals or bring them to the hearing,on Nov6mber 14,2002. Thank you for your anticipated cooperation. Very truly yours, ' RInVKIN RAD B -LLP 00 / Matthew G. Hug es Mgh Enclosures cc: George J. Tsunis, Esq. F�DOCSOPENMUGFIES W91648126 v1-CL)F&PHILSLOSSTRLETzsAMLING SUMMARY OF APPLICATION APPLICANT Cliff and Phil's Lobster House. The applicant is a family style restaurant. The, premises has been used as restaurant since the 1950's. LOCATION 50 North Sea-Drive, Southold,NY. More particularly described as SCTM# 1000 Section 54 Block 5 Lot 22. ZONE DISTRICT The property is located in the R-40 zoning district. The property is.approximately 21,932 square feet. NATURE OF APPLICATION The applicant is seeking to build an addition of 1,418 square feet to an existing non conforming building of 2,860 square feet to create new American'Disability Act compliant bathrooms and a more aesthetically pleasing building with a mature"landscaping plan. The applicant is seeking relief of Section 100-243 Al of the Town Code, which provides that the applicant cannot increase a nonconforming structure. In addition, the applicant is' seeking a use variance to operate a restaurant in a R-40 zoning district in accordance with Section 100-31 A of the Town-Code. Moreover, the applicant is seeking relief of the dimensional requirements of Section 100-244 of the Town Code which requires nonconforming lots more than 20,000 square feet in total size, provide a front yard setback of 40 feet. The applicant's proposed addition proposes a front yard setback of 21 feet. It should be noted that the building department has determined that the final-lot coverage to be approximately 16 percent. In essence, the applicant is seeking a front yard area variance of 19 feet. NORTH ELEVATION a re 4� .; H•- �„-.►c. "r."-�.n-,s-` ��-�.��a��� �;.,�,� '-, EAST ELEVATION 1 WEST • CONSTRUCTION AREA -owl' r may, EAS T ELEVATION > •. fi� _ +` ' w �I r ' • 6 � ff k. I a ` Fx t Y J h e 1 oQ' � •� Ap KEY MAP i I / •�� �,1 ,L\I TAX MAP DESIGNATION OWNER V��.yq011'. Y'(. '7 1000.54.+36 Varvit"M lwe G..4 Wife © 25lrvingtonPlue \� }�I % ti� �Z ( Brooklyn,NY 11230 \ \^ I nth • 'Lb h 1000.54+37 X,tramad�&Katherine 45 ��` 2 �. M3 Gant Neck,NY 11020 looasa.+a fe 21 koff,West Elliot&t 15 � / '0G G• x�1 � M � zlwnustrxtApttS-A New Ym14 New York 10006 t /�i \\ "1� i 1000-54.+5 Sommbom,Monroe A&Beverly \� K,tl ' $ �� I ]000-54.+21 79 West 12°Storer Apt.I4F q NY,NY loon Il l 1000.54.-iso stcul Paul&Mary! �" \,� `1Vj,., ,v,f?, � (.. .¢L*l .qi _t�•l 21 Magnolia Avmw \ c •�/ IJ• �/�` 'V' �I("' i Larchmorn,NY 10538 1000-54.-5-51 - Christopher Poppe 36 Fenimore Stmt Lynbrook New York 11563 i r/f h � 100054.-553 Stylianoy I.aris&Mdrwla& I I TAX MAP 111000-54- 2_2 �.�� I 1000 54-554 AA�s^•s De3pma 40 (1 r d 59 Omaha Street f ' t . 0 A DumouL 1,U 07628 iI ZONING -� ( 2Q,-' 10 �s qi 1000-59.-1-23.1 Kanm atL%Jahn V. i LOW DENSITY qm p �.�. 46 MulberryAveme NON-CONFORMING USE �\ `�, —. ( O I \mss.. j tQ Garden City,NY 11530 i BOARD OF HEALTH ` s '1 a ra�l� 1000-59.-1-23.2 103 P 4 Carol TYPE 11 ACTION<4,000 SF V �— /at 103 ukway Drive \; r 7 1 0. Roslyn Heights,NY 11530 AREAS \ v / T .'l i PLOT AREA 21.932 SF 1000.54.+2 Town of Sotnhold EXISTING BUILDING AREA 2,880 SF j. PROPOSED EXTENSION AREA 1.418 SF GROSS BUILDING AREA 4,278 SF ! i TOTAL LOT COVERAGE 4,278 SF (19.5%) .04v. Z/ag/GZ i LANDSCAPE AREA 2478 SF(11.3%) --/z4/,OZ fff PARKING REQUIREMENTS �' a t �C_�_ _ jPw-AOZ SPACES REQUIRED=4,278 SF+100 SFISPACE=42.78 w l•HornsMALMA>torvM. SPACES PROVIDED=43@ 9'-0'X19'-0' CLL117&PHRS LOBSM DO= ea41NAGE REQUIREMENTSY I!NNi NW J�w� PARKING AREA 13,300 SFSPIE PLAN --� ROOF AREA 4278 SF TOTAL DRAINAGE AREA 17,578 SF BOBERTH 1PEELAA%P.E 17,578 SF X 2 IN.-12 INJI-7 =Z930 CF P..Q a=$" DRY WELL 10 FT DIAMETER X 4 FT DEEP=314 CF A154TUTWX AWF YORK 1187 2,930 CF+314 CF/DRY WELL=9.33 DRY WELLS PROVIDE 9 EA 10 FT DIAMETER DRYWELLS acus:ASN M DRAONnt-ItNw tam.m w 1 CONNECT UNITS WITH 12 IN.DIAMETER osN�stau J POLYETHYLENE LEACHING PIPE rf/s�nPaCle0.a! �lNa ta't l I ' --- - 3:c- ,tel,_, '.4 iSi;:: ;�::•:,:.._..... r n - - L _ m■ Imurm _ n� n' fir' --- - rin. s��;<�;:<:: .,.:r•,.,_.. n n nm. rarjln nJill rmnlrm -Y3ti r ti.l 4n �■ r\ : „- Ire��f'�'q•��� mnmllmlm�„n,n„'::;:;.rnrrnl�lrtn,;, II 1IttII1Pl4��11 ��1�r'IIIIif�411III�UIiNfllI�IIII�III��llf �� _IHl1 r :sw mnntmnn nlnnnrnim.'e-' '�rrinurrrrin ` liilnlhttln --- I ,..,.,. ..r�•�"';�^^�:^T IlmnOr(In7n�lftlnrfrfrdfrf►,��� � In/� Rrtl ^___.=r=-•:_=•..=;.::�:s:;::u.::... 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No. 5051 — CLIFF AND PHIL'S LOBSTER HOUSE. (Continued hearing from February 28, 2002). Based on the Building Department's Notice of Disapproval issued November 13, 2001, amended/updated October 22, 2002, applicant requests zoning determinations for: (a) an Interpretation under Article =, Section 100-243 to Reverse the Building Department's determination which states that the proposed addition/alterations to an existing restaurant establishment is not permitted in a Residential R-40 District, or alternatively a Variance authorizing the proposed addition to the existing restaurant, a nonconforming use in a nonconforming building, and (b) a setback variance is also requested under Section 100-244B for an addition to the existing building which will be less than 40 feet from the front property line. Location of Property: Corner of the east side of Kenny's Road and the south side of North Sea Drive, Southold; Parcel 1000-54-5-22. (i The Board of Appeals will hear all persons, or their representatives, desiring to be heard at each hearing, and/or desiring to submit written statements before the conclusion of each hearing. The hearing will not start earlier than designated above. Files are available for review during regular Town Hall business days (and on 11/14 between 8 and 12). If you have questions,please do not hesitate to call (631) 765-1809. Dated: October 25, 2002. Southold Town Board of Appeals 53095 Main Road P.O. Box 1179 Southold,NY 11971-0959 (tel. 631-765-1809) i j FORM NO. 3 TOWN OF SOUTHOLD f BUILDING DEPARTMENT j SOUTHOLD,N.Y. NOTICE OF DISAPPROVAL DATE: November 13, 2001 AMENDED: November 14,2001 AMENDED: October 22,2002 TO: Elbow East PO Box 985 Southold, NY 11971 Please take notice that your application dated November 6, 2001 For permit to make additions and alterations to an existing restaurant at Location of property 50 North Sea Drive, Southold 11971 County Tax Map No. 1000 - Section 54 Block 5 Lot 22 Is returned herewith and disapproved on the following grounds: The proposed addition/alteration to a non-conforming building with a non conforming use on a 21,932 square foot lot in the R-40 District is not permitted pursuant to Article XXIV Section 100-243,which states: "A non-conforming building containing a nonconforming use shall not be enlarged reconstructed or structurally altered or moved except as set forth below, unless the use of such building is changed to a conforming use " A restaurant is not a permitted use the Residential R-40 District pursuant to Article IIISection 100- 3 IA. In addition, the proposed addition to an existing non-conforming building notes a front ard setback of +/- 21 feet, maintaining the existing front yard setback Therefore the proposed addition to an existing non-conforming building notes a front vard setback of+/- 21 feet maintaining the existing front yard setback. Therefore, the proposed addition/alteration is not permitted pursuant to Article XXVI Section 100-244, which states that non-conforming parcels measuring between 20,000 to 39,999 square feet in total size requires a minimum front yard setback of 40 feet Total lot coverage following the proposed addition will be less than 20 percent Although the surveyor notes a total lot coverage as being+/- 19 percent the building department has determined the final lot coverage to be approximatel+percent L r • 1310 , FORM NO. 3 NOTICE OF DISAPPROVAL DATE:November 14,2001 TO: Elbow East Amended: Februrr` 002 1 if PO Box 985 ,,'��t�t;.'�•'�'J_-_ �t r1�_�:� ;, Southold,NY 11971 Please take notice that your application dated November 6,2.001 For permit to make additions/alterations to an existing restaurant at - ! Location of property 50 North Sea Drive. Southold, County Tax Map No. 1000-Section 54 Block 5 Lot 22 Is returned herewith and disapproved on the following grounds: The proposed additiontalteration to a non-conformingbuilding with non-conforming use, on a 21,932 square foot lot in the R-40 District,is notpermitted pursuant to Article XXIV Section 100-243A.1. which states: "Nothing in this article shall be deemed to RLevent the remodeling,reconstructioor enl ement of a nonconforming or conforming nonresidential building with a nonconformidg nonresidential use or construction of an addition to existing buildings or additional buildkfifon the premises, so long as said increase in size of the buildings created by enlargement o the existing buildings or structures or by the construction of a new and separate building or structure does not result in an increase in the overall building_footprint(s)of more than 15% except that said increase shall not exceed the applicable maximum lot coverage In addition all other setback and area requirements shall appy' The existing-footprint of the existingbuilding uildingLis+/-2,780 square feet and the nronosed addition is noted as being+/-1.311. an anvroximate increase of 48 Percent. A restaurant is not a Permitted use in the residential R-40 district pursuant to Article III, Section 100- 31A. 00-31A. In addition the proposed addition to an-existing non-conformingbuilding uilding notes a front Pard setback of twenty-one(21)feet maintaining the existing front yard setback and a total lot coverage of 21.5 percent Therefore the proposed addition/alteration is not Permitted pursuant to Article XXVI Section 100-244 which states that non-conforming lots less than 20.000 square feet in total size,require a front yard setback of thirty-five(35)feet and a total coverage of 20 percent. L { Authorize Signature CC: file,Z.B.A. i' TOWN OF SOUTHOLD ---------------------------------------------------------------------X IN THE MATTER OF THE APPLICATION OF Public Hearing CLIFF AND PHIL'S LOBSTER HOUSE Zoning Board of Appeals FOR AREA AND USE VARIANCES No. 5150 November 14, 2002 ---------------------------------------------------------------------X MEMORANDUM OF LAW INTRODUCTION Cliff and Phil's Lobster House has submitted an application for an area variance and a use variance in connection with the proposed construction of an addition, pursuant to §100-243 A.1. As demonstrated herein, Cliff and Phil's Lobster House has satisfied all requirements of the Town Law and is entitled to the variances requested as will be demonstrated at the public hearing. CLIFF AND PHIL'S LOBSTER HOUSE HAS MET ALL OF THE TOWN LAW REQUIREMENTS FOR AN AREA VARIANCE Section 100-243A This section of the Town Code of the Town of Southold states as follows: "A non-conforming building with a non-conforming use shall not be enlarged, reconstructed or structurally altered or moved, except as set forth below, unless the use of such building is changed to a conforming use." 100-244(3) This section provides that when the square area of the lot is more than 20,000 square feet that the front yard setback shall be 40 feet. The applicant has a front yard setback of 21 feet rather than the required 40 feet. Therefore, the applicant is requesting a front yard variance of 19 feet. In essence, the applicant is seeking an area variance, which the applicant will demonstrate that they have met in accordance with Section Town Law 267-(b)(3)(b). Town Law 267-(b)(3)(b) Town Law 267-(b)(3)(b) provides the applicant meet five criteria before the Zoning Board of Appeals will grant an area variance. Town Law 267 (b)(3)(b) states: (1) "whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance." Here, the granting of an area variance will not be a detriment to nearby properties because the front yard area variance of 19 feet is in conformity with the rest of the existing structure. The applicant is merely proposing to square off the building. The proposed addition will be in keeping with the character of the neighborhood in that it will have dormers and clapboard siding. The current structure is nonconforming with the Town Code. Therefore, the impact will be minimal to the nearby property owners in light of the existing structure. The applicant is merely extending the existing structure. (2) "whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance." The applicant is seeking the addition to create a more aesthetically pleasing building and to create more space to make room for ADA compliant bathrooms and walkways. The applicant can only seek to build on the eastside of the current structure requiring the need for the area variance of 19 feet. The current structure is located on the northwest part of the premises. The other three sides of the building provide no room for expansion. (3) "whether the requested area variance is substantial." The requested variance is not substantial in light of the existing structure. Specifically, the applicant is only seeking an area variance to expand the structure so as to square off the existing building to provide ADA compliant bathrooms and space for a waiting area. (4) "whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district." The application for the area variance will not adversely impact the municipal services such as water, fire protection, and police protection. The premises is nearby to a fire department and police services. Moreover, the impact of the addition will not effect the current parking situation. The parking on the premises will actually improve with the striping of the parking lot, which will reduce the impact of any traffic generated from the 2 restaurant. In addition, the applicant is proposing a mature landscaping plan around the premises, which will diminish the deleterious impacts of traffic or noise generated from the premises. i (5) "whether,the alleged difficulty was self created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance." In the present case, the applicant's request is not self created because the property was upzoned to residential. In addition, it should be noted that the Town Code provides that non-conforming structures can be enlarged. The intent of the statute is recognition that non-conforming structures can be enlarged to provide an improvement of the existing structure. Moreover, the benefit to the applicant of approving the requested relief clearly outweighs any harm to the community. CLIFF AND PHIL'S LOBSTER HOUSE HAS MET ALL OF THE TOWN LAW REQUIREMENTS FOR A USE VARIANCE Section 267-(b)(2) Use Variances Town Law 267-(b)(2) provides for the issuance of a use variance, after a public hearing, once the ZBA finds the proposed use meets four requirements specified in Town Law. , Each of these four requirements are discussed below. (1) Section 267-(b)(2)(b)(1)provides the applicant demonstrate that"the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by a competent financial evidence." Village of Fayetteville v. Jarrold, 53 N.Y. 2d 254, 440 N.Y.S. 2d 908 (198 1) Muller v. Williams, 88 A.D. 2d 725, 451 N.Y.S 2d 278 (3ra Dept 1982). In Citizens Savings Bank v. Board of Zoning Appeals of Village of Lansing, 224 A.D 2d 797, 638 N.Y.S. 2d 179 (3d Dept 1996), the Court held that the applicant had provided sufficient evidence of lack of reasonable return where the applicant applied for a use variance for an existing non conforming restaurant to be used as office space. The applicant has submitted a financial statement from the accounting practice of Sheldon & Helinski, LLP of Cliff and Phil's Restaurant.(See Exhibit 11) The financial statement shows a net loss of $4,497 in 2001 and $21,090 in. 2000. Moreover, the applicant has a mortgage on the property. The taxes on the property are approximately $5,700.00. The estimated maintenance of the property is approximately $6,000.00. Clearly, based on the "dollars and cents proof' submitted the applicant has established that the property cannot yield a reasonable return. (2) Section- 267-(b)(2)(b)(2) states that "the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood." The property has been an existing restaurant since the 1950'. The property is unique to the area because it is the only commercial establishment in the area. The 3 surrounding properties are residential. The property is unique in that-it is the only restaurant in the area. Consequently, the granting of the requested variance will be limited to this particular piece of property. (3) Section 267-(b)(2)(b)(3)provides that"the requested use variance, if granted, will not alter the essential character of the neighborhood." The requested variance will not alter the character of the neighborhood in that the structure will be altered to provide a more aesthetically pleasing building: Specifically, the applicant is proposing a structure with peaked roofs, dormers, traditional windows with a clapboard exterior in character with the neighborhood. In addition, the applicant proposes providing a 'mature landscaping plan so to provide buffers to the existing residential homes in the area. (4) Section 267-(b)(2)(b)(4) states "that the alleged hardship has not been self created." The hardship placed upon the applicant is-not self created because the hardship was created when the property was upzoned in the 1990's. Furthermore, the Town of Southold Town Code recognizes that nonconforming uses can be enlarged so as to accommodate existing uses of the property. The applicant is seeking to build an addition to the existing building to accommodate the ADA.,In particular, the applicant is seeking to provide ADA compliant bathrooms. The existing bathrooms do not have enough room for wheelchair accessibility. In addition, the applicant is seeking an addition to provide an enclosed room for smokers and non-smokers. The applicant is not seeking an addition to the structure to expand his business but rather to accommodate laws that have been placed upon this property. For all of the foregoing reasons, Cliff and Phil's Lobster House is entitled to the use variance and an area variance. Respectfully submitted, V. George .GeorgeT Tsunis, Esq. Matthew G. Hughes, Esq. RIVKIN-RADLER LLP Attorneys for Cliff and Phil's Lobster House EAB Plaza Uniondale,NY 11556-0111 (516) 357-3000 FADOCSOPEMSMIGNANW1597565 4 n Geta Document-by Citation- 53 N.Y.2d 254 Page 1 of 8 Service: Get by LEXSEE® Citation: 440 NYS 2d 908 53 N.Y.2d 254, *; 423 N.E.2d 385, **; 1981 N.Y. LEXIS 2479, ***; 440 N.Y.S.2d 908 In the Matter of the Village Board of the Village of Fayetteville, Respondent, v. Richard Jarrold et al., Constituting the Zoning Board of Appeals of the Village of Fayetteville, Appellants, et al., Respondents [NO NUMBER IN ORIGINAL] Court,of Appeals of New York 53 N.Y.2d 254; 423 N.E.2d 385; 1981 N.Y. LEXIS 2479; 440 N.Y.S.2d 908 May 5, 1981, Argued June 16, 1981, Decided PRIOR HISTORY: [***1] Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered May 23, 1980, which (1) reversed a judgment (denominated order) of the Supreme Court (Edward F. McLaughlin, J.),,entered in Onondaga County in a proceeding pursuant to CPLR article 78, dismissing the petition, and (2) granted the petition. Respondent, Ronald Cosser, applied to the Zoning Board of Appeals of the Village of Fayetteville for permission to conduct commercial activity on his residentially zoned land. In support of the application, respondent produced the testimony of an architect who indicated r that residential construction on the parcel would entail certain special costs and was therefore not completely feasible. The architect did not specify the amount of added expenses, the total cost of construction, or render an opinion as to market value in the area. A real estate broker testified that the additional construction costs would make a house on the subject parcel competitively unsaleable. Again, the witness offered no concrete estimate of construction costs and no evidence of competitive value of other residences. Finally, another witness for respondent [***2] voiced his opinion that it would be inadvisable to use the land for residential development. No evidence was introduced as to the purchase price of the land or its current value. Based on this record, the zoning board found that it would be "economically unfeasible to build and attempt to sell a residential dwelling-on the lot in question" and granted a use variance. Petitioner then commenced a proceeding to invalidate the board's action. The Court of Appeals affirmed the order of the Appellate Division, holding, in an opinion by Chief Judge Cooke, that a landowner who seeks a use variance must demonstrate factually, by dollars and cents proof, an inability to realize a reasonable return under existing permissible uses. Matter of Villaae Bd. of Vil. of Fayetteville v Jarrod, 75 AD2d 994. DISPOSITION: Order affirmed. CASE SUMMARY PROCEDURAL POSTURE: Respondent landowner appealed from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (New York) that denied his request for a use variance on real property. .../retrieve? m=ac5alc7el0ec86e966a8073860179f48&csvc=le&cform=byCitation& frntstt=FUl/12/02 Get.a Document-by Citation- 53 N.Y.2d.254 Page 2 of 8 OVERVIEW: Respondent,landowner applied to the zoning board for permission to conduct commercial activity onj his residentially zoned land. The zoning board granted a use variance based upon the finding that it would be economically unfeasible to build and attempt to sell a residential dwelling on the lot in question and granted a use variance. Petitioner then commenced a proceeding to invalidate the board's action. The lower court agreed and respondent appealed. This court affirmed the order denying the use variance because respondent failed demonstrate factually', by dollars and cents proof, an inability to realize a reasonable return under existing permissible uses; therefore, a use variance could not be granted. The court held that conclusory witness testimony, unsupported by underlying'concrete facts in dollars and cents form, provided,no basis for a finding of unnecessary hardship. OUTCOME: The-court affirmed the order denying respondent's request for a use variance because there was no concrete evidence of undue hardship and no dollar and cents. testimony of respondent's inability to realize a reasonable return under existing permissible uses. CORE TERMS: variance, reasonable return, zoning, dollar, use,variance, zoning board, landowner,parcel, barn, unnecessary hardship, zoned, conclusory, New York Zoning Law, hardship, concrete, zoning ordinance, judicial review, confiscation, confiscatory; exemption, rigorous, annulled, residential development, real estate broker, competitively, residentially, economically, unfeasible, unsaleable, architect CORE CONCEPTS - + Hide Concepts Real&-Personal Property Law > Zoning& Land Use_> Conditional Use Permits_&Variances The well-established rule is that a landowner who seeks a use variance must demonstrate factually, by dollars and cents proof, an inability to realize a reasonable return under existing permissible uses. Without such evidence, a grant of a use variance by a zoning board is not justified. l Real & Personal Property_Law > Zoning -A-Land Use > Conditional Use Permits &Variances ;'An applicant for a use variance bears a heavier burden of proof than one who desires relaxation of an area limitation. Real & Personal Property Law > Zoning & Land Use > Conditional Use Permits &Variances +Before a claim that a property-is yielding less than a reasonable return may properly be interposed, the reasonable return for the property must first be known or at least be ascertainable. Thus, the court requires proof, in dollars and cents form, of all matters 'bearing upon the return available under existing zoning. And, the dollars and cents evidence must show that no permissible use will yield a reasonable return. Real & Personal Property Law > Zoning & Land Use > Conditional Use Permits'&Variances *The court annuls grants of use variances where the record fails to disclose concrete proof that the landowner could not realize a reasonable return without the exemption. And', the court has consistently rejected as insufficient to justify a grant of a use variance the bare conclusory testimony of witnesses that the property could not yield a reasonable return. Real & Personal PropertyLaw_> Zoning & Land Use > Conditional Use Permits &Variances +The court establishes general rules governing the granting of variances to ensure that actions of zoning officials do not impair or subvert the public interest. Compliance with these rules is necessary for the granting of a variance to withstand judicial review. .../retrieve? m=ac5alc7el0ec86e966a8073860179f48&csvc=le&cform=byCitation&_fintsh=F 11/12/02 i Get,a Document-by Citation-53 N.Y.2d 254 Page 3 of 8 Show Headnotes COUNSEL: John C. Setright for appellants. I. The requirement that "substantial evidence" be presented to permit a decision 'granting a variance does not mandate massing a preponderance of it. (Matter of Lemir Realty Corp. v Larkin, 11 NY2d 20; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309.) II. The evidence before the Zoning Board of Appeals preponderated in favor of the applicant assuming (without conceding it) that he had that burden of proof. (Matter of Crossroads Recreation v Broz, 4 NY2d 39; Hewitt v State of New York, 18 AD2d 1128.) James F. Dwyer for Village Board of Village of Fayetteville, respondent. I. It was error for the court to find that the relief requested and granted by the Zoning Board of Appeals was not an action pursuant to the requirements of the State Environmental Quality Review Act (SEQRA). [***4] (Kleppe v Sierra Club, 427 U.S. 390; H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222.) II. The record does not substantiate the lower courts determination that the board's findings were supported by substantial evidence of economic hardship. (Matter of Crossroads Recreation v Broz, 4 NY2d 39; Matter of Otto v Steinhilber, 282 NY 71; Matter of Gerling v Board of Zoning Appeals of Town of Clay, 6 AD2d 247; Matter of Driscoll v Culbertson, 8 AD2d 934; Matter of Beebe v Zoning 8d of Appeals of Town of New Castle, 65 AD2d 794.1111. The notice of hearing was defective because it failed to reasonably apprise-- the public of the relief granted after hearing by the board. IV. The claimed hardship of the corporate owners was self-created. ( Telaro v Telaro, 25 NY2d 433; Matter of Clark v Board of Zoning Appeals of Town of Hempstead, 301 NY 86;_Ames v Palma, 52 AD2d 1077.) JUDGES: Judges Jasen, Gabrielli and Fuchsberg concur with Chief Judge Cooke; Judge Wachtler dissents and votes to reverse in a separate opinion in which Judges Jones and Meyer concur. - OPINIONBY: COOKE OPINION: [*256] [**385] OPINION OF THE COURT !Dispositive [***5] on this appeal is the well-established rule that a landowner who seeks a use variance must demonstrate factually, by dollars and cents proof, an inability to realize a reasonable return under existing permissible uses. Without such_evidence, a grant of a use variance by a zoning board is not justified. Respondent, Ronald Cosser, applied to the Zoning Board of Appeals of the Village of Fayetteville for permission to conduct commercial activity on his residentially zoned land. In support of the application respondent produced the testimony of an architect who indicated that residential construction .[**386] on the parcel would entail certain special costs and was therefore not competitively feasible. The architect did not specify the amount of added expenses, the total cost of construction, or for that matter render an opinion as to market value in the area. A real estate broker testified that the additional construction costs would make a house on the subject parcel competitively unsaleable. Again, the witness offered no concrete estimate of construction costs and no evidence of competitive value of other residences. Finally, another witness for respondent voiced [***6] his opinion that it would be inadvisable to use the land for residential development. No evidence was introduced as to the purchase price of the land or its current value. Based on this record, the zoning board found that it would be "economically unfeasible to build and attempt to sell a residential dwelling on the lot in question" and granted a use variance. Petitioner commenced this proceeding to invalidate the board's action. Special Term upheld the determination, but [*257] a unanimous Appellate Division reversed. The order of the Appellate Division should be affirmed. It should be noted, at the outset, that respondent sought a variance for a prohibited use and .../retrieve? m=ac5alc7el0ec86e966a8073860179f48&csvc=le&cform=byCitation& fmtstr=F 11/12/02 Get a Document-by Citation- 53 N.Y.2d 254 Page 4 of 8 1 not merely exemption from anjarea restriction. TAn applicant for a use variance bears a heavier burden of proof than one who desires relaxation of an area limitation (e.g., Matter of Consolidated Edison Co of N Y v Hoffman, 43 NY2d 598, 606-607) and our discussion here relates only to that more stringent standard. Boards of zoning appeals have'traditionally been empowered to grant variances from strict application of zoning ordinances. Although the board possesses discretion to grant or withhold a variance, [***7] this court, in early zoning cases, established the minimum showing necessary before that discretion could be exercised. In Matter of Otto v Steinhilber (282 NY 71, 76), the court articulated the classic "unnecessary hardship" test governing grant of use variances: "Before the Board may exercise its discretion and grant a variance upon the ground of unnecessary hardship, the record must show that (1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning,ordinance itself; and (3) that the use to be authorized by the variannce will not alter the essential character of the locality." Because the landowner in Otto failed to demonstrate his inability to realize a reasonable return on the property as zoned, the board's grant of a use variance was annulled. TIt is obvious that, "before a claim that a property is yielding less than a reasonable return may properly be interposed, the reasonable return for the property must first be known or at least be ascertainable" [***8] (Matter of Crossroads Recreation v Broz, 4 NY2d 39, 45). Thus, we have required proof, in dollars and cents form, of all matters bearing upon the return available under existing,zoning (e.g., id., at pp 44-46: see Matter of Young Women's Hebrew Assn. v Board of Stds. &Appeals of City of N. Y., 266 NY 270, 275; [*258] 2 Anderson, New York Zoning Law and Practice, § 18.12; 3 Rathkopf, Zoning and Planning, § 38.03). And, the dollars and cents evidence must show that no permissible use will yield a reasonable return (e.g., Matter of Forrest v Evershed, 7 NY2d 256, 263: Matter of Young Women's Hebrew Assn v Board of Stds &Appeals of City of N. Y., 266 NY 270, 275, supra; 3 Rathkopf, Zoning and Planning, § 38.03). nl - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - nl Where permissible uses include public ones, the applicant is generally not required to show the property unsuitable for such uses (Matter of Gri mel Assoc v. Cohalan, 41 NY2d 431, 433-434). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The dollars and cents rule is a familiar one, regularly [***9] applied in cases where a zoning ordinance is alleged to be unconstitutionally [**387] confiscatory (e.g., Spears v Berle, 48 NY2d 254; Matter of National Merritt v Weist, 41 NY2d 438, 445-446). Indeed, it has been said that the hardship needed to show entitlement to a use variance and the proof needed to demonstrate an ordinance is confiscatory are much the same (e.g., Williams v Town of Oyster Bay, 32 NY2d 78, 81; 3 Rathkopf, Zoning and Planning, § 38.03, at p 38-26). What is little known, however, is that the rule evolved, not out of the confiscation cases, but rather from the decisions involving variances. Thus, in Williams v Town of Oyster Bay (32 NY2d 78,,81,-supra) the court expressly applied by analogy the variance rule to claims of alleged confiscation. The similarity of the two rules has created confusion, leading some to contend that dollars and cents proof of hardship is required only where a zoning board denies a variance. Under this view, the two standards would be commingled and denial of a variance would be annulled where the landowner showed that he could not receive a reasonable return under any permissible use -- i.e. that because of the [***10] unique nature of the particular parcel, the current zoning is confiscatory. By contrast, the zoning board would be permitted .../retrieve? m=ac5alc7el0ec86e966a8073860179f48&csvc=le&cform=byCitation&_fmtstr=F 11/12/02 Geta Document-by Citation-53 N.Y.2d 254 Page 5 of 8 to grant a variance on some lesser showing. Our decisions, however, evince a fundamental desire to limit "the power of the board of zoning appeals to grant variances" (2 Anderson, New York Zoning Law and Practice, [*259] § 18.06,, p 12). As early as 1927, Cardozo warned, in the course'of an opinion annulling the grant of a variance, that "[ther`e] has been confided to the Board a delicate jurisdiction and one easily abused * * * judicial review would be reduced to an empty form if the requirement were relaxed that in the return of the proceedings the hardship and its occasion must be exhibited fully and-at large" (People ex rel Fordham Manor Reformed Church v Walsh, 244 NY 280, 290). +From the earliest days this court has annulled grants of use variances,where the record failed to disclose concrete proof that the landowner could not realize a reasonable return without the exemption (e.g., Matter of Clark v Board of Zoning Appeals of Town of Hempstead, 301 NY 86, 90; Matter of Otto v Steinhilber, 282 NY 71, supra; Matter of Levy v Board G***111 of Stds &Appeals of City of N. Y., 267 NY 347; Matter of Young Women's Hebrew Assn v Board of Stds &Appeals of City of N. Y., 266 NY 270, supra; People ex rel. Fordham Manor Reformed Church v Walsh, 244 NY 280, supra). And, this court has consistently rejected as insufficient to justify a grant of a use variance the bare conclusory testimony of witnesses that the property could not yield a reasonable return (e.g., Matter of Forrest v Evershed, 7 NY2d 256, 261-262, supra [testimony of real estate broker that property was unsaleable]; Matter of Clark v Board of Zoning Appeals of Town of Hempstead, 301 NY 86, 90, supra [testimony of real estate broker that property could not produce a reasonable return as zoned]; cf. wears v Berle 48 NY2d 254, 263-264, supra [bare conclusory testimony does not establish lack of reasonable return to support allegation of confiscation]). TIn short, the court has established general rules governing the.granting of variances to ensure that actions of zoning officials do not impair or subvert the public interest. Compliance with these rules is necessary for the granting of a variance to withstand judicial [***12] review. Absent a uniform and rigorous,standard, it is apparent that even a well-intentioned zoning board "by piecemeal exemption which ultimately changes the character of the neighborhood * * * [may create] far greater hardships than [*260] that which a variance may alleviate" (Matter of Otto v Steinhilber282 NY 71, 77-78, supra). Unjustified variances likewise may destroy or diminish the value of nearby property and adversely affect those who ,[**388] obtained "residences in reliance upon the design of the zoning ordinance" (id., at 78). These evils, not unlike those associated with the universally condemned practice of spot zoning, have been zealously guarded against by this court. n2 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 One commentator has noted that, even where zoning legislation confers broad power to permit variances, the courts have "moved quickly to find strict limitations" (2 Anderson, New York Zoning Law and Practice, § 18.07, p 13). That same authority examined 200 decisions involving judicial review in variance cases and found that "65 percent of the variances granted by boards were reversed by the courts [while] [only] 25 percent of the board denials were reversed" (id., § 18.06, p 12). - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***13] On the present record, therefore, it must be concluded that the.facts adduced at the hearing did not justify the grant of a use variance. The conclusory testimony of the witnesses, unsupported and unsupplemented by underlying concrete facts in dollars and cents form, provides no basis for the board or the courts to evaluate whether the property at issue is being subjected to unnecessary hardship. Indeed, even the dissenting opinion points to'no fact on the record that demonstrates the inability of the landowner to realize a reasonable return. While the dissenting opinion notes that the parcel is sloped and will require special .../retrieve? m=ac5a1c7el0ec86e966a8073860179f48&csvc=le&cform=byCitation&_fintstr=F 11/12/02 Get a Document-by Citation- 53;N.Y.2d 254 Page 6 of 8 preparation for residential development, it does not and cannot specify the extra cost of the preparation, the potential value of a house on the site, the cost of the property and other such information. Without this proof, it is simply impossible to say, other than by pure speculation, whether residential development will or will not yield a reasonable return:Thus, the dissent's inability to adduce facts on the record in support of its ultimate conclusion illustrates the wisdom and logical necessity of the dollars and cents rule in these circumstances. [***14] Accordingly, the order of the Appellate Division should be affirmed, with costs. DISSENTBY: WACHTLER DISSENT: Wachtler, J. (dissenting). The majority, by insisting on a particular kind of evidence without regard to the substantiality of the evidence presented or what it tend's to' [*261] prove, departs from the settled rule that once it appears that a zoning board decision is supported by substantial evidence, the court's function is at an end. Zoning board members are not expected to be theoreticians or doctrinaire specialists, but rather are representative citizens acting in the community interest through commonsense accommodations of conflicting community pressures (see Matter of Lemir Realty Corp. v Larkin, 11 NY2d 20: Matter of Von Kohorn v Morrell, 9 NY2d 27). For this reason, where a landowner seeking a variance attempts to show to the municipal body that without it he cannot obtain a reasonable return on his property, there is no need to impose rigid and technical constraints on the type of acceptable proof. To do so denigrates the local municipal body•s expertness and familiarity with local conditions. It has never been the law that there must'invariably be a submission [***15] of "dollars and cents proof' to support the grant of a variance, and the facts of this case clearly demonstrate that without it evidence of a different character can meet the traditional 1 standard of reasonableness sufficient to require affirmance of the board's determination. In essence it is for the municipal body, within bounds of rationality, to determine the form and type of evidence on which it may properly base its determination. Although it was not obliged to do so, in this instance the Board of Zoning Appeals found the proof submitted sufficiently reliable and creditworthy to provide a premise for its determination. The respondent sought to obtain a use variance permitting the operation of a small furniture refinishing and upholstering business in a residentially zoned area. The application was made before the Zoning Board of Appeals for the Village of Fayetteville which, after a hearing, concluded that a variance was appropriate under the circumstances. [**389] Respondent proposed to render the parcel in question suitable for this limited "cottage industry" use by renovating a deteriorating century-old barn existing on the land. The board, after considering extensive [***16] testimony on the matter, expressly found that: "The barn is of historical [*262] significance as it pertains to the agricultural and trade [route] origins of the Village. Preservation of the barn is consistent with the public interest. The barn is presently in poor repair and in need of extensive rehabilitation." Respondent proposed to repair the barn in accordance with an architect's model submitted to the board, with a view towards maintaining the exterior character of the structure and without altering its exterior dimensions. The board additionally found that: "Strict application of the zoning requirements of the Fayetteville Code would result in unnecessary hardship. Under the applicable zoning restrictions and other requirements of law, no reasonable use may be made of this parcel. It is economically unfeasible to renovate and remodel the barn to put it in compliance with the law for a permitted residential'use. Demolition of the barn should not be required and is undesirable; even if that were done, it would be economically unfeasible to developthe parcel for permitted residential use and would not produce a saleable property". .../retrieve? m=ac5ale7el0ec86e966a8073860179f48&csvc=le&cform=byCitation& fintsti=F 11/12/02 I Geta Document-by Citation- 53 1N.Y.2d 254 Page 7 of 8 I The conclusions of [***17] the board were based on expert testimony, which the board credited, indicating that the slope of the parcel is "exceptionally steep" and that much of the parcel is burdened with a high water table. A stream ran along the rear property line which, due to the topography, created a danger of overflow several times yearly. Additionally, respondent produced uncontradicted testimony that to alleviate this problem tremendous amounts of fill, which would be prohibitively expensive, would be required and that the necessary additional construction costs would make the property competitively unsaleable. Despite this evidence, and the clearly permissible inferences to be drawn from it, the village board of trustees, respondent before us, would nullify the action of the Board of Zoning Appeals by exalting the "dollars and cents" language of Matter of Crossroads Recreation v Broz (4 NY2d 39), torturing it out of context and applying it in a manner which was never intended. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - * It is to be noted that the "dollar and cents" formulation (on which text writers have subsequently fastened) was used by our court in a case in which the board had determined that the proof submitted was not sufficient to justify granting the variance and in which we wrote to sustain the board's determination; we were not there addressing a situation in which, as here, the board had found the evidence submitted acceptable for its purposes. We similarly upheld a zoning board's denial of an application for a variance in Matter of National Merritt v Weist (41 NY2d 438, 446). - - - - - - - - - - - - - - - - -End',Footnotes- - - - - - - - - - - - - - - - - [***18] [*263] The classic articulation of the unnecessary hardship test governing the grant of use variances was set forth in Matter of Otto v Steinhilber(282 NY 71) where the court required that the record show that (1) the land in question cannot yield-a reasonable return as zoned; (2) that the plight of the owner is due to the unique circumstances of the land; and (3) that the use under a variance would not alter the essential character of the locality. On all three of these points, the proof was more than sufficient. However, it is the proof of the ability of the landowner to obtain a reasonable return which the majority would find legally deficient through a rigid insistence on submission of numerical financial data. In doing so it unwisely limits the character of permissible evidence and fails to focus on what is required to be proved andthat which the evidence which was introduced in fact served to prove. It is apparent from the record before the board that this vacant barn on otherwise vacant land was not yielding a reasonable return as residential property. It is equally apparent that the board could reasonably conclude that the cost of huge amounts of fill required [***19] to transform this lot into suitable residential property would be prohibitively high. Of course, for purposes of our [**390] review, the proof need only supply substantial evidence and a rational basis for the decision to grant the variance. In Matter of Crossroads Recreation v Broz (4 NY2d 39, supra) both the procedural posture and the facts were entirely different; we held that in the absence of explicit countervailing financial proof there was no warrant for judicial disturbance of the board's determination. The owner of a service station who sought-a variance to permit an increase in his nonconforming use attempted to support his position by conclusory allegations that the still operating station could not longer "face the competition". But no economic data was offered to show the required return on [*264] the property or to demonstrate that without the variance the ongoing business was a losing proposition. The denial of a variance by the board was there sustained because in that specific economic context -- certainly not in all foreseeable contexts -- the failure to provide dollars and cents proof rendered the record "entirely devoid" of any [***20] basis for measuring a reasonable return (Matter of Crossroads Recreation v .../retrieve? m=ac5a1c7e10ec86e961 a8073860179f48&csvc=le&cform=byCitation&_fmtstr=F 11/12/02 Geta Document-by Citation- 53 N.Y.2d 254 Page 8 of 8 Broz, supra, at p 45). There is no indication or justification to be derived from that opinion - that the dollars and cents requirement was, as the majority now supposes, intended to be enshrined as "a uniform and rigorous standard". In this area of diverse fact situations and local expertness it must be recognized that workable rigorous standards are rare. Indeed, even those standards imposed by statute (see Village Law, § 7-712,, subd 2,1par [c]) are intended to permit'the board a maximum of discretion (2 Anderson, New York Zoning Law and Practice, § 18.06). That discretion should be no less applicable or constrained where a board determines that a considerable quantity of nonconclusive proof may fairly prove a point (cf. Matter of Forrest v Evershed, 7 NY2d 256; Matter of Clark v Board of Zoning Appeals of Town of Hempstead, 301 NY 86). The inability of an owner to obtain a reasonable return on his property can logically be shown in more than one way, and if the manner of proof is reliable and acceptable to the local body, the courts should not automatically intrude to insist on an even higher [***21] standard of evidence. Finally, it should be noted that the majority has equated the failure to abide by its novel technical requirement with an attempted piecemeal destruction of the rural character of the community. In fact, as the record clearly demonstrates, the board was seeking to do the opposite by providing a dispensation permitting a use tailored to a,valuable existing structure. This is precisely within the function of a variance; this court should not interfere. Accordingly, the order of the Appellate Division should be reversed, with costs, and the determination of the Zoning Board of Appeals reinstated. Service:. Get by'LEXSEE® Citation: 440 NYS 2d 908 View: Full Daterrime: Tuesday,November 12,2002-10:26 AM EST About LexisNexis I Terms and Conditions Copyright© 2002 LexisNexis,a division of Reed Elsevier Inc.All rights reserved. .../retrieve? m=ac5alc7el0ec86e966a8073860179f48&csvc=le&cform=byCitation&_fintstr=F 11/12/02 Gdt a Document-by Citation-257 N.Y. 73 Page 1 of 6 Service: Get by LEXSEE® Citation: 257 N.Y.73 257 N.Y. 73, *; 177 N.E. 313, **; 1931 N.Y. LEXIS 818, *** The People of the State of New York ex rel. St. Albans-Springfield Corporation, Respondent, v. Henry L. Connell et al., Constituting the Board of Standards and Appeals of the City of New York, Appellants [NO NUMBER IN ORIGINAL] Court of Appeals of New York 257 N.Y. 73; 177 N.E. 313; 1931 N.Y. LEXIS 818 June 1, 1931, Argued July 15, 1931, Decided PRIOR HISTORY: [***1] Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 15, 1931, which affirmed an order of Special Term sustaining an order of certiorari which annulled a determination of the Board of Standards and Appeals of the City of New York and directed the issuance to the respondent by said Board of Standards and Appeals of a permit for the erection and maintenance of a gasoline station. Pile ex rel. St. Albans-Springfield Corp. v. Connell, 233 App. Div. 765, modified. DISPOSITION: Ordered accordingly. CASE SUMMARY PROCEDURAL POSTURE: Appellant city board of standards and appeals sought review of a decision from the Appellate Division of the Supreme Court in the Second Judicial Department (New York), which affirmed a lower court order sustaining an order of certiorari annulling a denial by the board of respondent landowner's application to erect a gasoline station on his property. OVERVIEW: A property owner filed an application with the city board of standards and appeals (board) to permit the erection of a gasoline station on his property. When his application was denied the owner obtained an order of certiorari to review the decision. A referee was assigned the matter and ultimately recommended that the decision of the board be reversed. The board sought review of the order based upon the referee's report. The court determined that the trial court did have authority to review the decision of the board and that the action of the board deprived the property owner of any beneficial use of his property. The order of the trial court was modified to allow for the erection of the gasoline station provided that it be removed when the property became susceptible to being applied to business use. OUTCOME: The court modified the order of the trial court to permit the erection of a gasoline station but provided for the removal of the station when the property upon which it was to be built became more amenable to business use. CORE TERMS: boulevard, referee, zoning, gasoline station, erection, neighborhood, temporary, variance, writ of certiorari, charter, dwelling, modified, planning, streets, modify, zoned, feet, substantial relation, general welfare, public health, novel, practical difficulties, conclusions of law, northeast corner, intersection, profitably, unoccupied, territory, municipal, .../retrieve? m=71397188560e8412cea1157435cc6736&csvc=le&cform=& fmtstr=FULL&d11/13/2002 Get a Document-by Citation-257 N.Y. 73 Page 2 of 6 { vicinity ` ORE CONCEPTS - ♦ Hide Concepts Administrative Law > Judicial Review > Reviewability > Jurisdiction &Venue ISection 719-a of the New York, N.Y. Charter, gives to any person aggrieved by a decision of the Board of Standards and Appeals a right to present to the supreme court a petition setting forth that the decision is illegal in whole or in part, and specifying the grounds of the illegality. The justice of the court may allow a writ of certiorari directed to the Board of Appeals to review such decision and shall prescribe the time in which a return thereto must be made. Section 719-a (4) reads: If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determinations of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision,brought up for review. Civil Procedure > Appeals > Appellate Jurisdiction > State Court Review +N.Y. Laws ch. 269 § 4 (1880) enacted that on the return to a writ of certiorari: If, upon the hearing, it shall appear,to the court that testimony is necessary for the proper disposition of the matter, the court may take evidence or may appoint a referee to take such evidence as the court may direct, and report the same to the court, and such testimony shall constitute a part of the proceedings upon which the determination of the court shall be made. Real & Personal Property Law > Zoning & Land Use > Constitutional Limits —*The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare. A court should not set aside the determination of public officers in such a matter unless it is clear that their action has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health; the public morals, the public safety or the public welfare in its proper sense. ♦ Show Headnotes COUNSEL: Arthur J. W. Hilly, Corporation Counsel (Willard S. Allen, J. Joseph Lilly and Martin H. Murphy of counsel), for appellants. The Board of Standards and Appeals did not abuse its discretion in denying relator's application. ( Matter of Goldenberg v. Walsh, 215 App. Div. 396; 242 N. Y. 576; Matter of N. & H. Building Co. v. Walsh, 223 App. Div. 844; People ex rel. Ruth v. Leo, 197 App. Div. 942- [***S] Lincoln Trust Co. v. Williams Bldg. Corp., 229 N. Y. 313; People ex rel. Facey v. Leo, 230 N. Y. 602; People ex rel. Helvetia Realty Co. v. Leo, 231 N. Y. 619- People ex rel. Sheldon v. Board of Appeals, 234 N. Y. 484; People ex rel. Smith v. Walsh, 211 App. Div. 205- 240 N. Y. 606; Matter of Sloan v. Walsh, 245 N. Y. 208; Matter of Sagamore Road Corp. v. Lee, 224 App. Div. 744- 250 N. Y. 532-; Matter of Revom Realty Co. v. Walsh, 225 App. Div. 774- 251 N. Y. 516; Matter of Wilkins v. Walsh, 225 Ano. Div. 774; 251 N. Y. 518; Matter of Beardsley Realty Co. v. Walsh, 225 App. Div. 815 252 N. Y. 571.) Under the provisions of subdivision 4 of section 719-a of the New York Charter the Special Term was without power to direct the referee to take evidence de novo. ( People ex rel. Helvetia Realty Co. v. Leo, 183 N. Y. Supp. 37; 195 App. Div. 887; 231 N. Y. 619; Civ. Prac. Act, § 1283; Matter of Multiplex Garage Inc, v Walsh, 213 App Div. 155.) Stephen Callaghan for respondent. The only available use for the relator's property is a .../retrieve? m=71397188560e8412ceall57435cc6736&csvc=le&cform=& fmtstr=FULL& 11/13/2002 Geta Document-by Citation-257 N.Y. 73 Page 3 of 6 • I gasoline service station. (People ex rel. Fordham [***6] M. E. Church v. Walsh, 244 N. Y. 280; People ex rel. Werner v. Walsh, 212 App.-Div. 635;. 240 N. Y. 689; Matter of Goldenberg ,v. Walsh, 215 App. Div. 396; 242 N. Y. 576; Matter of Revom Realty Co. v. Walsh, 225 App. Div. 774; People ex rel. Smith v. Walsh, 211 App. Div. 205; 240 N. Y. 606.) The order of reference to take proof on the question of whether there are practical'difficulties or unnecessary hardships herein was proper. ( People ex rel. Helvetia Realty Co. v. Leo, 183 N. Y. Supp. 37;_ 195 App. Div. 887; 231 N. Y. 619; Matter of Caponi v. Walsh, 228 App. Div. 86; Matter of Mazzarell v. Walsh, 231 App. Div. 748; People ex rel. Hayman v. Walsh, 223 App. Div. 752; People ex rel. Gross v. Walsh, 213 App. Div. 878.) 3UDGES: Crane, J. Cardozo, Ch. J., Kellogg, O'Brien and Hubbs, JJ.;concur; Pound and Lehman, JJ., dissent on the ground that the statute does not contemplate a judicial review and determination by the court on the merits. OPINIONBY: CRANE OPINION: [*76] [**313] The St. Albans-Springfield Corporation is the owner of a vacant lot on the northeast corner of Foch and Springfield boulevards, in [***7] the -borough of Queens, city of New York, having a frontage of 100 feet on Foch boulevard and 86.52 feet on Springfield boulevard. The section is in the outskirts of the city of New York in what is still a rural community and farm lands. Immediately south of Foch boulevard the land is still used for farming and.this condition exists about half a mile down Springfield boulevard toward the Merrick road. While some of the property has been laid out in building lots, almost the entire section consists of vacant land, there being only six buildings in the entire area extending 400 feet from the premises in each direction. Four of these are brick buildings, with stores in the ground floor and apartments for dwelling purposes overhead, which [**314] cannot be rented for enough to bring in a reasonable return upon the investment. As transit facilities do not reach this territory, it has been slow in development, the few ' families who do live in the neighborhood being transported by bus or in their own automobiles. Pursuant to the Building Zone Resolutions adopted in accordance with the powers given the Board of Estimate and Apportionment, under section 242-a of the Greater New York [***8] Charter (Laws of 1901, ch. 466, amd. Laws of 1917, ch. 601), the relator's property has been placed in a business district. Finding that it could not profitably dispose of the property either for residential or business-purposes, it applied to the Board of Standards and Appeals to permit the erection upon the corner lot of a gasoline station. Section 21 of the Amended Building Zone Resolution of the City of New York permits the Board of Standards and Appeals to vary any provision of the zoning requirements where there are practical difficulties or unnecessary hardships in the way of carrying them out. After a brief statement of the case before the Board the application was denied, whereupon the [*77] relator obtained an order of certiorari to review the decision, pursuant to section 719-a of the charter. Upon the return of the Board, the Special Term made an order referring the matter to a referee to take proof of all practical difficulties and unnecessary hardships in the way of carrying out the strict letter of the Zoning Resolution, reciting in the order that after hearing argument it was necessary to take testimony for the proper disposition of the case. The referee took [***9] testimony and made findings of fact and conclusions of law fully supported by the testimony taken. He found that Foch and Springfield boulevards are much traveled arterial highways, Foch boulevard being a continuation in the city of New York of the Southern State parkway, and Springfield boulevard running at right angles from Jericho turnpike south across the Merrick road connecting with the Rockaway boulevard. Travel upon both of these streets is very heavy through traffic. Stores or business would not benefit by such use of these streets as parking on the,sides thereof would almost be prohibitive. There are no residences in the neighborhood to support a'business either upon Foch boulevard or Springfield boulevard at or near the intersection thereof. Less than thirteen per cent of the lots in the area zoned for business are now used for business, and eighty-seven per cent of such lots are either unbuilt upon or the buildings thereon are unoccupied. Taking both sides of Foch boulevard and .../retrieve? m=71397188560e8412cea1157435cc6736&csvc=le&cforrn=& fmtstr=FULL& 11/13/2002 Get a Document-by Citation-,257 N.Y. 73 Page 4 of 6 .. i Springfield boulevard, for a distance of one mile north, east, south and west of their intersection, there are 1,481;lots zoned for business. On these 1,481 lots there are now erected 189 buildings '[***10] with stores, 62 being vacant. Ninety-two per cent of the lots zoned for business are unoccupied. The entire area of property shown on the map has been laid out in streets regulated,,graded and curbed, and consequently can be used only for building, business or dwellings. The business buildings, says the referee, could not be sold for a fair price, and they could [*78] not be rented, because the-number of dwelling houses in the vicinity is not sufficient to support a business. Turning to the evidence, we find officials from such large institutions as the Williamsburgh Savings Bank, the Dime Savings Bank, and the National Title Company testifying that their institutions will not loan a dollar in this business section. The property would simply come back on their hands, as the income would be insufficient to pay the carrying charges. The referee, therefore, finds that loans cannot be obtained upon this business property on these highways. In addition to the taxes upon said property there is a lien by reason of an assessment levied for the construction of sewers. Those who have purchased lots from the relator in the vicinity have been unable to pay interest on their mortgages, [***11] taxes and assessments. The referee states as a fact that the site in question is not suitable for the -erection of a business building of any character whatever, and that a gasoline-selling station is the.only available use to which the property in question can be put. Under such circumstances, lithe relator to be deprived of all use of its property and any income therefrom by reason of this Zoning Resolution? There is no claim made by the relator that the zoning of this entire territory, according to the map in evidence, has been illegal and improper. It does claim, however, that as to it the restriction is unreasonable, arbitrary and illegal. - - J The report of the referee was confirmed by the order appealed from, which directs the Board of Standards and Appeals to grant the relief, and to permit the relator to erect upon his property the gasoline station as requested. The Board of Standards and Appeals now questions the power of the Special Term to review its order in the manner indicated and insists that the Supreme Court is limited on certiorari to review merely the Board's jurisdiction. [*79] It presses upon our attention the case of People ex rel Helvetia Realty Co [***12] v Leo (183 N Y Supp 37; affd., 195 App. Div. 887: 231 N. Y. 619). [**315] Judge Giegerich, at Special Term, said that the taking of proof, pursuant to the provisions of subdivision 4 of section 719-a of the Greater New York Charter, is limited to such matters as affected the jurisdiction of the body or officer whose action is sought to be reviewed, and hence the matter cannot be heard de novo. The affirmance of that case in this court was without opinion and without approval of this statement. The Board had permitted a variance which was approved by the Special Term and on appeal. The power of review given to the courts was not directly involved as it might have been if the application for a variance had been denied and the owner's rights thus restricted. The sections of the charter to which this opinion makes reference do not justify the limitation stated by the justice. *Section 719-a gives to any person aggrieved by a decision of the Board of Standards and Appeals a right to present to the Supreme Court a petition setting forth that the decision is illegal in whole or in part, and specifying the grounds of the illegality. The justice of the court may allow [***13] a writ of certiorari directed to the Board of Appeals to review such decision and shall prescribe the time in which a return thereto must be made. Section 719-a (4) reads: "If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determinations of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review." .../retrieve? m=71397188560e8412cea1157435cc6736&csvc=le&cform=& fintstr—FULL& 11/13/2002 Get a Document-by Citation-257 N.Y. 73 Page 5 of 6 This procedure is not unlike the method by which tax [*80] assessments were reviewed. ( People ex rel Manhattan Ry. Co. v. Barker, 152 N. Y. 417.) +Chapter 269 of the Laws of 1880 enacted that on the return to a writ of certiorari: "If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, the court may take evidence or may appoint a referee to take such evidence as the court may direct, and report the same to the court, and such testimony shall constitute [***14] a part of the proceedings upon which the determination of the court shall be made." (§ 4.) This court in the opinion in that case noted the "novel functions" attached to the writ of certiorari hitherto unknown to such methods of review. "The special statutory writ now before us differs from its predecessors in one remarkable respect, in that it permits a redetermination of all questions of fact upon evidence, taken in part at least, by the Special Term, or under its direction" (p. 430). The charter provisions, above referred to, likewise have this novel feature, that upon an appeal by the order of certiorari to the Supreme Court additional testimony may be taken upon which the court may reverse, or affirm wholly, or partly, or may modify the decision brought up for review. Practice followed in Anderson v. Jester (206 Iowa, 452); Sundlun v. Zoning Board of Pawtucket (50 R. I. 108); McCabe v. Zoning Board of Providence (50 R. I. 4A9--)-. Because of the rather informal procedure before the Board of Standards and Appeals ( Matter of Caponi v. Walsh, 228 App. Div. 86, 90), a further and more formal and judicial review by the Supreme Court was no doubt considered [***15] necessary in some circumstances. (See, also, People ex rel Fordham M. R. Church v. Walsh, 244 N. Y. 280, 286.1 All powers, however, have their inherent limitations to be applied with wisdom, judgment and discretion. A Special Term of the Supreme Court having this rather wide power to supplement the record is not [*81] supposed to exercise it as though it were the Board of Standards and Appeals. The power is to be used cautiously, with extreme care where there appears to be a probability that the effect of the additional testimony, if it is received, will be to show the ruling complained of to be wrong; and when the whole case comes to be decided upon the new testimony and the old, the court, even then, is not to put itself in the position of the Board, is not to substitute its own discretion for that of the administrative agency established by the statute in a situation where the exercise of discretion is possible. The necessity for a variance is to be determined under section 21 of the Amended Building Zone Resolution by the Board of Standards and Appeals. Its judgment should be final unless it clearly appears to be arbitrary or contrary to the law. The powers [***16] of the Board, as outlined in section 719, are very largely administrative, including much that has to do with the zoning situation. The courts must not trespass upon this administrative work, but confine their review to correcting legal errors. ( Zahn v. Board of Public Works, 195 Cal. 497; Sundlun v. Zoning Board of Pawtucket, 50 R. I. 108.1 [**316] How far zone planning may encroach upon the free use of private property was considered by the United States Supreme Court in Nectow v. Cambridge (277 U.S. 183). The zoning plan, legal as to other property included within the district, was considered unconstitutional as to the particular property owned by one who sought relief from its restrictions. The master to whom the matter had been referred had reported that the districting of the plaintiffs land in a residence district would not promote the health, safety, convenience and general welfare of the inhabitants, taking into account the natural development of the city and the character of the district and the resulting benefit to accrue to the whole city. In deciding that the limitation was unconstitutional as to the owner, the court said: "+The governmental [***17] power [*82] to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare" (p. 188). The court, however, added a word of caution: "A court should not set aside the determination of public officers in such a matter unless it is clear that their action 'has no foundation in reason and is a mere .../retrieve? m=71397188560e8412cea1157435cc6736&csvc=le&cform=& fmtstr=FULL& 11/13/2002 Get a Document-by Citation-257 N.Y. 73 Page 6 of 6 • I arbitrary or irrational exercise of power having no substantial relation to the public health, 1 the public morals, the public safety or the public welfare in its proper sense"' (p. 187). We think substantially the same restrictions define the power of the court in nullifying the orders of the Board of Standards and Appeals. Considering the nature of the relator's property in this case, and the finding of the referee, the ruling of the Board of Standards and Appeals deprives the owner of any beneficial use of his property. When, if ever, the city grows and develops so that business may be profitably conducted in the neighborhood or on Springfield and Foch [***18] boulevards, the legal proposition may also change with the situation. Law is applied to facts, and as the facts change in the process of time the law adapts itself accordingly. That which may be unconstitutional to-day may be legal years hence. The zoning of farm land is different from the zoning of a city. Consequently, the erection and maintenance of a gasoline station on this property on the northeast corner of Foch and Springfield boulevards, while a proper use to- day, may become unnecessary with the development of business. We may take judicial notice of the fact that the capital expenditure for such a structure will be comparatively slight. The erection of the station in order to meet a temporary need will not be permitted to thwart for all time a far-sighted system of municipal development. [*83] To what extent and in what circumstances long-time planning for zoning purposes is a valid exercise of legislative power is a question with aspects too many to be answered in one decision. We are not required to say that a merely temporary restraint of beneficial enjoyment is unlawful where the interference is necessary to promote the ultimate good either of the municipality [***19]' as a whole or of the immediate neighborhood. Such problems will have to be solved when they arise. If we assume that the restraint may be permitted, the interference must be not unreasonable, but on the contrary must be kept within the limits of necessity. Where as here the ultimate good can be attained and a productive use allowed, a use that will be temporary and provisional and readily terminable when new conditions supervene, the landowner is wronged if the allowance is refused. The order, therefore, of the court below, which authorizes and permits the erection and use of this gasoline station must be modified by a direction that when the circumstances so change by the development of the city that the property is reasonably susceptible of being applied to business uses, then, upon the application of the authorities or any one interested, the gasoline station must be removed. The order should be modified as directed in this opinion and as thus modified affirmed, without costs. Service: Get by LEXSEE® Citation: 257 N.Y.73 View: Full Date/Time: Wednesday,November 13,2002-3:20 PM EST About LexisNexis I Terms and Conditions Copyright© 2002 LexisNexis,a division of Reed Elsevier Inc.All rights reserved. .../retrieve? m=71397188560e8412cea1157435cc6736&csvc=le&cform=& fintstr=FULL& 11/13/2002 Get a Do6ument-by Citation- 88,A.D.2d 725 . Page 1 of 3 Service: Get by LEXSEE® Citation: 451 NYS2d 278 88 A.D.2d 725, *; 451 N.Y.S.2d 278, **; 1982 N.Y. App. Div. LEXIS 16964, *** In the Matter of Thomas Muller et al., Appellants, v. Graham Williams et al., Constituting the Zoning Board of Appeals of the City of Troy, et al., Respondents, [NO NUMBER IN ORIGINAL] Supreme Court of New York, Appellate Division, Third Department 88 A.D.2d 725; 451 N.Y.S.2d 278; 1982 N.Y. App. Div. LEXIS 16964 May 13, 1982 CASE SUMMARY PROCEDURAL POSTURE: Petitioner variance opponents challenged a judgment of the Supreme Court, Rensselaer County (New York), which dismissed the variance opponents' application to annul a determination of respondent Zoning Board of Appeals (board), which granted respondent landowners' application for a variance to build housing for senior citizens. OVERVIEW: The landowners successfully sought use and area variances of the zoning ordinance to permit them to construct a federally financed medium rise building for housing for senior citizens. The trial court dismissed the variance opponent's proceeding to annul the board's determination granting the variance. The court affirmed. The court Y held that record adequately supported the determination of the board that economic hardship existed for allowed uses, that the land was unique, that the hardship was not self-imposed, and that the essential character of the locality would not be altered. The court also held that the procedures employed by the board were lawful in that the public was not denied full opportunity to present its views. OUTCOME: The court affirmed the judgment of the trial court,-which dismissed the variance opponents' application to annul a determination of the board, which granted the landowners' application for a variance to build housing for senior citizens. CORE TERMS: zoning board of appeals, zoning ordinance, variance, locality, zone, substantial evidence, essential,character, reasonable return, full opportunity, landowners, housing, elderly, dollars, annul CORE CONCEPTS - + Hide Concepts Real & Personal Property Law > Zoning & Land Use > Conditional Use Permits &Variances +The Court of Appeals of New York has fashioned three requirements for the granting of a use variance. First, the land cannot yield a reasonable return for allowed purposes; second, the plight is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance; and third, that the use sought by the variance will not alter the essential character of the ,•locality. gh Real & Personal Property Law > Zoning & Land Use > Conditional Use Permits &Variances *Where permissible uses include public ones, an applicant for a variance is generally not required to show'that the property is unsuitable for such uses. .../retrieve? m=03a72aa54e96ff9362398d828f344eec&csvc=le&cform byCitation& fmtsti=FUl1/12/02 Get a Document-by Citation- 88 A.D.2d 725 Page 2 of 3 R Real & Personal PropertvLaw > Zoning & Land Use > Judicial Review' —*Since a zoning board is given discretion in the granting or denial of variances, a court's function is limited, and a board determination may not be-set aside in the absence of illegality, arbitrariness or abuse of discretion. The board's determination will be sustained if it has a rational basis and is supported by substantial evidence. JUDGES: [***1] Sweeney, J. P., Main, Casey, Weiss and Levine, JJ., concur. OPINION: [*725] [**279] Appeal from a judgment of the Supreme Court at Special Term (Prior, Jr., J.), entered October 5, 1981 in Rensselaer County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to annul a determination of the Zoning Board of Appeals of the City of Troy. Respondents Lawrence Cassabone and Gary Kearns, as the owners of a parcel of land in the Sycaway section of Troy, successfully sought use and area variances of the zoning ordinance to permit them to construct a " Federally financed medium rise building for housing for senior citizens. Special Term dismissed petitioners' CPLR article 78 proceeding to annul the zoning board of appeals determination granting the variance and the instant appeal ensued. The judgment should be affirmed. Petitioners, relying upon Matter of Village Bd. of Vil. of Fayetteville v Jarrol�53 NY2d 254). and Matter of Welch v Zoning Bd. of Appeals of Town of Vo 71 AD2d 702 initially contend there is not substantial evidence in the record as a whole to support the determination, in that the landowners failed to demonstrate factually, [***2,] by dollars and cents proof, [*726] an inability to realize a reasonable return under existing permissible uses. This argument is misplaced. The subject premises are in an R-2 zone. According to the Zoning Ordinance of.the City of Troy, the allowable uses in an R-2 zone are "1) Detached single family residence, 2) Two family residences, 3) Duplexes, 4) Home Occupations, 5) Parks, open space, recreational facilities, 6) Accessory structures incidental to above uses, and 7) Planned development." It should be noted that the zoning board of appeals and its staff, throughout the proceedings, considered "only one'and two family residences are permitted in the R-2 zone district." In Matter of Otto v Steinhilber X282 NY 71, 76), *the Court of Appeals fashioned the three requirements for the granting of a use variance. First, the land cannot yield a reasonable return for allowed purposes; second, the plight is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance; and third, that the use sought by the variance will not alter the essential character of the locality. This rule has been consistently [***3] followed by the courts. The record here shows that the landowners offered substantial proof of each of the three criteria delineated in Matter of Otto v Steinhilber (supra, including the specific "dollars and cents" proof required by the Fayetteville case (supra). Petitioners mistakenly argue that the owners failed to offer proof relative to certain other allowed uses such as libraries, museums, art galleries and child care centers..These are not allowed uses in the zoning ordinance. They are special permit uses which are not includible under either the Otto or Fayetteville rules. Moreover, *where permissible uses include public ones, an applicant is generally-not required to show that the property is unsuitable for such uses ( Matter of Grime/Assoc. v Coha/an, 41 NY2d431, 433-4341_The record adequately supports the determination of the zoning board of appeals that economic hardship exists for allowed uses, that the land is unique, that the hardship was not self- imposed, and that the essential character of the locality would not be altered. Petitioners next contend that the procedures employed by the board were unlawful. We disagree. The [***4] proceedings encompassed [**280] several hearings during which all persons, including objectants, were given full opportunity to be heard. It is true that the public was not allowed to participate at the final two meetings on June 30, 1981 and July 30, 1981. However, we find that these two final meetings,'although open to the public, were essentially deliverative in nature, at which the members of the board evaluated all of the evidence submitted, discussed the application among themselves without interruption, and finally .../retrieve? m=03a!2aa54e96ff9362398d828f344eec&csvc=le&cform=byCitation&_fmtsh=F 11/12/02 Geta Document-by Citation- 88 A.D.2d 725 Page 3 of 3 a voted. We cannot say that thepublic was denied full,opportunity to present its views. Finally, we note that the proposed construction is in a locality which already includes shopping facilities, Protestant, Catholiciand Jewish houses of worship; health-providing services, banking, transportation, and 'other accessible amenities required by the elderly. The president of the Rensselaer County Senior Citizens Group and the president of the Troy Senior Citizens organization both testified to the dire need in the city for additional housing for the elderly. The issue is whether the zoning board of appeals erred in its decision. We note that this board is composed [***5] of highly competent individuals including two architects, a college professor, a State commissioner, and other knowledgeable persons, who performed their duties in a diligent and exhaustive manner. *Since a zoning board is given discretion in the granting or denial of variances, the court's function is limited, and a board determination may not be set aside in the absence of illegality, arbitrariness or abuse of discretion ( Matter of Consolidated Edison Co. of N. Y. v Hoffman, 43 NY2d 598, 608). The board's'determination will be sustained if it has a rational basis and is supported by substantial evidence ( Matter of National Merritt v Weist, 41 NY2d 438, 443), both of which exist [*727] here. Judgment affirmed, without costs. Service: Get by LEXSEE® Citation: 451 NYS2d 278 View: Full Date/Time: Tuesday, November 12,2002-10:28 AM EST About LexisNexis I Terms and Conditions Copyright© 2002 LexisNexis,a division of Reed Elsevier Inc.All rights reserved. .../retrieve? m=03a72aa54e96ff9362398d828f344eec&csvc=le&cform=byCitation&_fmtstr=F 11/12/02 1 Geta Document-by Citation- 67 A.0.2d 54 Page 1 of 12 Service: Get by LEXSEEO Citation: 1979 N.Y.App.Div.LEXIS 10075 67 A.D.2d 54, *; 414 N.Y.S.2d 358, **; 1979 N.Y. App. Div. LEXIS 10075, *** In the Matter of Douglaston Civic Association, Inc., et al., Appellants, v. Joseph B. Klein et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents; Samuel Mindel, Intervenor-Respondent [NO NUMBER IN ORIGINAL] Supreme Court of New York, Appellate Division, Second Department 67 A.D.2d 54; 414 N.Y.S.2d 358; 1979 N.Y. App. Div. LEXIS 10075 March 19, 1979 PRIOR HISTORY: [***1] Appeal from a judgment of the Supreme Court at Special Term (Leonard L. Finz, J.), entered May 17, 1977 in Queens County, which, in a proceeding pursuant to CPLR article 78, dismissed a petition to annul a determination of the Board of Standards and Appeals of the City of New York granting a variance to the intervenor-respondent. Matter of Douglaston Civic Assn. v Klein, 67 AD2d . DISPOSITION: Judgment of the Supreme Court, Queens County, dated May 17, 1977, -, affirmed, with one bill of$ 50 costs and disbursements. CASE SUMMARY PROCEDURAL POSTURE: Respondent zoning board granted respondent landowner a variance to construct indoor tennis courts on the grounds of practical difficulty and unnecessary,hardship. Petitioner civic associations sought to annul the grant under N.Y.C.P.L.R. 78 as arbitrary and capricious and in violation of New York, N.Y., Zoning Ord. §'72-21. The Supreme Court of Queens County (New York) dismissed the petition to annul and the civic associations appealed. OVERVIEW: The civic associations opposed the variance on grounds that the city had recently earmarked funds to expand an adjacent park and wetlands. The land was originally zoned R1-2 residential. The zoning board granted the variance on grounds that residential building on swampy property would be economically prohibitive. On appeal, the court affirmed and held that the zoning board had complied with the ordinance. The court found that the nature of the soil would necessitate extremely high construction costs for residences. Also, the variance did not alter the essential character of the neighborhood, which was mainly commercial. In addition, the construction of a tennis facility was more in keeping with the adjacent park. The landowner's hardship was not self-created because it was only after he had purchased the property that he discovered that the soft soil would require prohibitive construction costs. The court noted that the civic associations were opposed to any development of the land, including residential; that none of the land encroached upon the wetlands; and that the city had not undertaken to condemn the subject property and incorporate it into the park. OUTCOME: The court affirmed the grant of the variance on the grounds of practical difficulty and unnecessary hardship. CORE TERMS: variance, zoning, tennis, use variance, reasonable return, feet, parcel, .../retrieve? m=889fffbdc02348f178145bf8a9562d99&csvc=le&cform=& fintstr=FULL&do-11/13/2002 Geta Document-by Citation- 67 A.1).2d-54 Page 2,of 12 unnecessary hardship, neighborhood, hardship, indoor, self-created, practical difficulties, zone, essential character, subject property, property owner, one-family, uniqueness, residential, adjacent, rezoning, zoning ordinance, subject parcel, varied, zoned, soil, plot, declaratory judgment action; ordinance CORE CONCEPTS - ♦ Hide Concepts Real & Personal Property Law > Zoning & Land Use > Conditional Use Permits &Variances +Before the Board of Standards and Appeals of the City of New York may exercise its discretion and grant a variance upon the ground of unnecessary hardship, the record must show that (1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood that may reflect the unreasonableness of the zoning ordinance itself; and (3) the use to be authorized by the variance will not alter the essential character of the locality. Real & Personal Property Law > Zoning & Land Use > Conditional Use Permits &Variances ±New York, N.Y., Zoning Ord. § 72-21 provides in subsections (a) to (e) that: The Board of Standards and Appeals may only grant a variance when it can properly make the following findings: (a) That there are unique physical conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to and inherent in the particular zoning lot; and that, as a result of such unique physical conditions, practical difficulties or unnecessary hardship arise in complying strictly with the use or bulk provisions of the resolution; and that the alleged practical difficulties or unnecessary hardship are not due to circumstances created generally by the strict application of such provisions in the neighborhood or district in which the zoning lot is located. Real & Personal Property Law > Zoning & Land Use > Conditional Use Permits &Variances +New York, N.Y., Zoning Ord. § 72-21 provides in subsections (a) to (e): The Board of Standards and Appeals may only grant a variance when it can properly make the following findings: (b) That because of such physical conditions, there is no reasonable possibility that the development of the zoning lot in strict conformity with the provisions of this resolution will bring a reasonable return, and that the grant of a variance is therefore necessary to enable the owner to realize a reasonable return from such zoning lot. (c) That;the variance, if granted, will not alter the essential character of the neighborhood or district in which the zoning lot is.located; will not substantially impair the appropriate use or development of adjacent property; and will not be detrimental to the public welfare. Real & Personal Property Law > Zoning & Land Use > Conditional Use Permits &Variances +New York, N.Y., Zoning Ord. § 72-21 provides in subsections (a) to (e): The Board of Standards and Appeals may only grant a variance when it can properly make the following findings: (d) That the practical difficulties or unnecessary hardship claimed as a ground for a variance have not been created by the owner or by a predecessor in title. Where all other required findings are made, the purchase of a zoning lot subject to the restrictions sought to be varied shall not itself constitute a self-created hardship. (e) That within the intent and purposes of this resolution the variance, if granted, is the minimum variance necessary to afford relief; and-to this end, the Board may permit a lesser variance than that applied for. Real & Personal Property Law > Zoning & Land Use > Conditional Use Permits &Variances .../retrieve? m=889fffbdc02348f278145bf8a9562d99&csvc=le&cform=& fintstr=FiJLL&do 11/13/2002 Get,a Document-by Citation-67 A.D.2d 54 Page 3 of 12 ±Even if the practical difficulty alleged in support of a variance were in fact self-created, that would not, in and of itself, deprive the board of its discretionary power to grant a variance. Purchasers whojdiscover latent problems or obstacles that would not make it desirable to conform to thIe zoning resolution are entitled to relief. + Show Headnotes COUNSEL: Julius Feigenbaum for appellants. Allen G. Schwartz, Corporation Counsel (Maureen F. Brennan and L. Kevin Sheridan of counsel), for respondents. McGee & Morsellino (Joseph P. Morsellino of counsel), for intervenor-respondent. JUDGES: Shapiro, J. Hopkins, J. P., and Margett, 3., concur with Shapiro, 3.; Suozzi and Gulotta, 33., dissent and vote to reverse the judgment, grant the petition and annul tfie determination, with separate.opinions. OPINIO'NBY: SHAPIRO OPINION: [*55] OPINION OF THE COURT [**359] In this CPLR article 78 proceeding to review a determination of the Board of Standards and Appeals of the City of New York, the petitioners appeal from a judgment of the Supreme Court, Queens County (Finz, 3.), dated May 17, 1977, which sustained the granting of a variance by the board to the intervenor-respondent (Samuel Mindel). We affirm. On August 11, 1971 Mindel purchased the subject property. It is located on the south side of Northern Boulevard in Douglaston, Queens, between 232nd and 233rd Streets (both [**360] streets not laid out). It is an undeveloped plot set back from [***4] Northern Boulevard -- 72 feet on the east and about 110 feet on the west. The plot runs 200 feet parallel with Northern Boulevard and has a depth of 300 feet on the westerly side and 402 feet on the easterly side. The property lies generally at the southern end of Little Neck Bay and the northern end of Alley Pond Extension. Northern Boulevard, in this area, is [*56] lined on,both sides by commercial enterprises consisting of gas stations, a golf driving range, a diner, fast food outlets and other businesses. On November 24, 1975 Mindel applied to the Department of Buildings for approval of plans to construct a one-story tennis facility with a parking area. The application was disapproved because use of the property as a tennis facility was not permitted in an R1-2 zone (one- family detached) under section 22-10 of the Zoning Resolution of the City of New York. Mindel then appealed to the Board of Standards and Appeals (board) for a variance to permit the construction of a one-story building to house eight tennis courts and a parking area adjacent to the building. On April 9, 1976 Community Planning Board 11 notified the board of its opposition to the granting of a variance. [***5] In addition, at the hearings held by the board, various civic associations and other organizations and citizens objected to.the requested variance. It was brought out that more than $ 800,000 had been expended by the city for the development of the adjacent Alley Pond Park and for the preservation of the wetlands. The nature of the opposition is sufficiently characterized in a letter from the then chairman of the City Planning . Commission who wrote: "Alley Park, when developed, is conceived of as a major natural habitat of a unique ecological character * * * The community has expressed the hope of extending the existing boundaries of Alley Park, to include the surrounding vacant lands, including the instant site. We raise these facts to underscore the need to avoid any .../retrieve? m=889fffbdc02348f278145bfBa9562d99&csvc=le&cform=& fmtstr=FULL&do 11/13/2002 Get-a Document-by Citation-67 A.D.2d 54 Page 4 of 12 development of a nature that would conflict with the overall planning. of this area and of adjacent Alley Park. The proposal before the Board clearly conflicts with the City's current planning program in the area." Mindel, on the other hand, introduced reports by real estate appraisers to the effect that the swampy nature of the property required the sinking of numerous pilings prior to construction of any residential [***6] buildings. He pointed out that, according to the appraisal reports, a complying residential use'of the subject property would contain five one-family residences on lots of 60 feet by 100 feet and six one-family residences on lots of 67 feet by 100 feet., The costs of such residences would be: $ 52,800 for construction of the home; $ 8,00046r construction of the basement; $ 1,000 for landscaping, sewer connection, etc.; $ 3,000 for the necessary pilings; [*57] and $ 8 per square foot for the value of the land. Thus, the total cost would be $ 112,800 for the smaller lots and $ 118,400 for the larger lots. Moreover, the maximum sales potential for the one-family residences, which would be located in an isolated area adjacent to commercial property, would only be $ 30,000 to $ 35,000. Thus, in view of the relatively low expectation of return on the homes, the cost of construction would be prohibitive. Accordingly, Mindel`argued that the granting of a variance was necessary to enable him to realize a reasonable return. By a resolution dated July 27, 1976, the board granted the variance. The resolution provides: "Whereas, the decision of the Borough Superintendent, dated November [***7] 24, 1976 * * reads: '1. Proposed construction of physical culture establishment (indoor tennis center). Use Group 9, is not permitted as a right in an 111-2 zoning district, as per Section 22-10 of the Zoning Resolution.' and "Whereas, the premises and surrounding area were inspected by a committee of the Board; and [**361] "Whereas, the Board has determined that the evidence in the record supports the findings required to be made under Section 72-21 of the Zoning Resolution, and that the applicant is therefore entitled to relief on the grounds of practical difficulty and/or unnecessary hardship. "Resolved, that the Board of Standards and Appeals does hereby make each and every one of the required findings and grants a variation in the application of the Zoning Resolution, and that the application be and it hereby is granted under Section 72-21 of the Zoning Resolution, to permit in a R1-2 district, the erection of a one story building for use as an indoor tennis center on condition that all work shall substantially conform to drawings filed with this application * * * and on further condition that this variance shall be limited to a term of 15 years, and that all laws, rules [***8] and regulations applicable be complied with, and that substantial construction be completed within one year from the date of this resolution." Petitioners then commenced this CPLR article 78 proceeding seeking to set aside the determination of the board on the grounds that the granting of the variance was arbitrary and capricious and in violation of section 72-21 of the Zoning Resolution. `) [*58] Special Term, in upholding the board's determination, found that each of the criteria imposed by section 72-21 of the Zoning Resolution had been met and it therefore rejected the contention advanced by the appellants that the board had exceeded its statutory mandate in granting the variance. On this appeal appellants again contend, as they did at Special Term, that the board exceeded its authority and arrogated to itself the legislative function of the Board of Estimate and the City Planning Commission by rezoning the area under the guise of a variance. In addition, appellants maintain that the board was not justified in making any of the findings .../retrieve? m=889fffbdc02348f278145bf8a9562d99&csvc=le&cform=& fintstr=FULL&do 11/13/2002 Get-a Document-by Citation- 67 A.D.2d 54 Page 5 of 12 required under section 72-21 of the Zoning Resolution. They submit that Mindel failed to establish that the return ford the property would [***9] not be reasonable for each and, every permitted use. They point out that pursuant to subdivision (d) of section 72-21 of the Zoning Resolution,, none of the other required findings can properly be made to relieve Mindel from the self-inflicted hardship of purchasing the land with knowledge of the R1-2 zoning. Moreover, they contend that the variance granted is not the minimum variance mandated under subdivision (e) of section 72-21. The respondent board, on the other hand, argues that it has made every one of the required findings under section 72-21. Thus, it maintains that the property has unique physical conditions; that it cannot bring a reasonable rate of return as presently zoned; that rezoning would not alter the essential character of the neighborhood; that the hardship complained of is inherent in the land and was not self-created and that the variance granted was the minimum necessary to afford appropriate relief. In the landmark case of Matter of Otto v Steinhilber(282 NY 71, 76) the Court of Appeals set forth the circumstances which-justify the granting of a variance on the ground of unnecessary hardship saying: +"Before the Board may exercise its discretion and [***10] grant a variance upon the ground of unnecessary hardship, the record must show that (1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances and not to the general conditions- in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character [*59] of the locality. (Bassett [Bassett on Zoning (1937)] op. cit. supra, pp. 168, 169.)" While the Zoning Resolution of the City of New York has retained the basic requirement that its zoning regulations may be varied only in cases of practical difficulty or unnecessary hardship, the elements of these terms have been more precisely [**362] defined than is common in municipal zoning ordinances generally or in the cases (see 2 Anderson, New York Zoning Law and Practice [2d ed], § 18.08). Thus, +under the provisions of section 72-21 of the Zoning Resolution, the Board of Standards and Appeals may only grant a variance when it can properly make the following findings: "(a) That there are unique physical [***11] conditions, including irregularity, narrowness or shallowness of lot size or'shape, or exceptional topographical or other physical conditions peculiar to and inherent in the particular zoning lot; and that, as a result of such unique physical conditions, practical difficulties or unnecessary hardship arise in complying strictly with the use or bulk provisions of the resolution; and that the alleged practical difficulties or unnecessary hardship are not due to circumstances created generally by the strict application of such provisions in the neighborhood or district in which the zoning lot is located. "(b) That because of such physical conditions, there is no reasonable possibility that the development of the zoning lot in strict conformity with the provisions of this resolution will bring a reasonable return, and that the grant of a variance is therefore necessary to enable the owner to realize a reasonable return from such zoning lot. "(c) That the variance, if granted, will not alter the essential character of the neighborhood or district in which the zoning lot is located; will not substantially impair the appropriate use or development of adjacent property; and will not be detrimental [***12] to the public welfare. T (d) That the practical difficulties or unnecessary hardship claimed as a ground for a variance have not been created by the owner-or by a predecessor in title. Where all other required findings are made,,the purchase of a zoning lot subject to the restrictions,sought to be varied shall not itself constitute a self-created hardship. "(e) That within the intent and purposes of this resolution the variance, if granted, is the .../retrieve? m=889fffbdc02348f278145bf8a9562d99&csvc=le&cform=&_fmtstr=FULL&doH/13/2002 i Geta Document-by Citation-67 A.D.2d 54 Page 6 of 12 minimum variance necessary [*60] to afford relief; and to this end, the Board may permit a lesser variance than that applied for." In my opinion, the board's fundings met the criteria of the Zoning Resolution. L - In Stanley Park, Inc. v Donovan (34 AD2d 690, later app 38 AD2d 861, affd 32 NY2d 6681. the petitioner was denied a variance for a restaurant and a free-standing sign. In reversing, this court said (p 862): "In our opinion the 'dollars and cents' evidence elicited by petitioner on the rehearing, together with the inferences reasonably to be drawn therefrom and from the other evidence, established that the subject premises cannot yield any reasonable return if used only for the purposes allowed within the zone in which [***13] it is located. In these circumstances respondents' denial of petitioner's application for a use variance was arbitrary, capricious and'an'abuse of discretion." In our case the appraisers' reports show that the nature of the soil would necessitate extremely high construction costs for residences and that such costs would not permit the owner to obtain a fair return on his investment. The board had a right to credit those reports, buttressed, as they were, by a personal inspection of the property "by a committee of the Board". In addition, the board properly considered the heavy traffic conditions on Northern Boulevard which reduce the site's value as residential land (see 67 NY Jur, Zoning and Planning Laws, § 296). Thus, the board could properly find, as it did, that criteria (a) and (b) of the zoning ordinance were met. Next, on the record before it and under the requirements of subdivision (c), the board could properly have determined, as it did, that the variance would not alter the essential character of the neighborhood nor substantially impair the development of adjacent property. In this connection the-board had a right to consider that Northern Boulevard, in the immediate [***14] vicinity, is [**363] lined with commercial establishments and that the - construction of a tennis facility would be more in keeping with the proposed development of the adjacent land as a park and more desirable than a tract full of homes. The record makes it obvious that the various groups which opposed the variance, including the appellants, were not against the construction of a tennis facility per se, but were against any development of the subject property. Even if single-family homes were built on the tract under consideration, they would [*61] be just as destructive, if not more so, to the wetlands and the park, than the proposed tennis building and parking lot. The fact is, though, that none of Mindel's land encroaches upon the wetlands. In addition, the city has not undertaken to condemn the subject property and incorporate it into the proposed Alley Pond Park. Concerning subdivision (d), I agree with the board that Mindel's hardship was not self- created. This is not a case where the owner, knowing of the zoning restrictions, purchased the property with the intent'to later obtain a use variance (see 67 NY Jur, Zoning and Planning Laws, § 305,,and cases cited [***15] therein). Rather, it was only after he had purchased-the property that he discovered that the soft soil in the area would require prohibitive construction costs. It was only then that he sought the variance. In this connection the board properly pointed out that subdivision (d) itself states that: "Where all other required findings are made, the purchase of a zoning lot subject to the restrictions sought to be varied shall not itself constitute a self-created hardship." Moreover, *even if the practical difficulty were in fact self-created, that would not, in and of itself, deprive the board of its discretionary power to grant a variance (see Matter of Cherry Hill Homes v Barbiere, 28 NY2d 381;_ Matter of Simpson v King, 47 AD2d 634; Designer Homes v City Council of City of Yonkers, 36 A132d 836; Matter of Craig v Zoning Bq d. of Appeals of City of Yonkers, 50 A132d 887). Certainly, therefore, purchasers'who discover latent problems or obstacles which would not make it desirable to conform to the Zoning Resolution are entitled to relief. That is precisely the situation here. The dissenters would deny the variance on the ground that the "uniqueness" of the property .../retrieve? m=889fffbdc02348f278145bf8a9562d99&csvc=le&cform=& frntstr=FULL&do 11/13/2002 Get a Document-by Citation-67 A.D.2d 54 Page 7 of 12 in [***16] question has Knot been established in accordance with the standards set forth in Matter of Otto v Steinhilber (282 NY 71, supra). They maintain that the same topographical conditions exist generally throughout the immediate area and that the owner's proper remedy lies in an application for a change of zone or in an action for a declaratory judgment and that therefore the board, in granting the variance, exceeded its authority. I disagree. Apart from the prohibitive cost involved in building one-family homes on the marshland, the commercial nature of the immediate area makes it inappropriate for residential development. Thus, while they correctly point out that a use [*62] variance is not the appropriate remedy to be granted when the difficulties and hardships are shared generally with other property owners in the area, they fail to give sufficient consideration to the all-important additional characteristic of this property which makes it unique, viz., its proximity to Northern Boulevard. It is those combined factors which are controlling here. Finally, section 22-21 of the Zoning Ordinance, which is entitled, "Uses Permitted by Special Permit By the Board of Standards [***17] and Appeals", establishes, inter alia, the following situations under which a special permit may be granted in a R1-2 district: camps, clubs, colleges or universities, outdoor tennis courts or ice-skating rinks, and riding academies or stables. Given the fact that permits can be granted for those special uses, the granting of a variance for an indoor tennis center is in keeping with the other uses permitted for the area. I fail to see how an indoor tennis center differs in character from such structures as a university gymnasium, a camp athletic building, a riding academy or stable, [**364] or an ice-skating rink, all of which are permitted as special uses. That being the case, the board could, as it did, properly grant a variance for an indoor tennis center as being in keeping with the established character of the district. Thus, there being substantial evidence in the record to support all of the findings of the board, the judgment of Special Term sustaining the variance should be affirmed. DISSENTBY: SUOZZI; GULOTTA DISSENT: Suozzi, J. (dissenting). I dissent and would reverse the judgment, grant the petition and annul the determination of the Board of Standards and Appeals [***18] which granted a variance to the intervenor for the construction of indoor tennis courts. Although I agree that the subject property is entitled to some relief from the residential restrictions which presently encumber it, I must, nevertheless, vote to disapprove the variance for two reasons. First, a variance is not the appropriate legal remedy for the subject parcel because its "uniqueness" has not been established in accordance with the standards set forth in Matter of Otto v Steinhilber(282 NY 71), which are incorporated in section 72-21 of the New York City Zoning Resolution. Second, even if the parcel is "unique", several other prerequisite factual findings for the granting of a use variance have not been established on the sparse record before this court. [*63] The subject property is located in an R1-2 (one-family detached) zone, the most restricted form of residential district, as a result of a zoning ordinance passed by the New York City Board of Estimate and the City Planning Commission in 1961. This property is located on the south side of Northern Boulevard between 232nd and 233rd Streets, which are mapped but nonexistent streets. The record establishes [***19] that this property is undeveloped and set back on the south side of Northern Boulevard 72 feet on the east and about 110 feet on the west. The plot runs 200 feet parallel with Northern Boulevard and has a depth of 300 feet on the westerly side and 402 feet on the easterly side. This plot is surrounded on three sides by other unimproved and uncultivated swampy land. .../retrieve? m=889fffbdc02348f278145bf$a9562d99&csvc=le&cform=& fintstr=FULL&do 11/13/2002 Get-a Document-by Citation-67 A.D.2d 54 Page 8 of 12 Section 72-21 of the Zoning Resolution of the City of New York incorporates the requirements for a use variance as set forth by the Court of Appeals decisions in Matter of Otto v Steinhilber(282 NY 71, sup'ra), and Dauernheim, Inc. v Town Bd. of Town of Hempstead (33 NY2d 468). In Matter of Otto v Steinhrlber(supra, p 76) the court stated that in seeking a use variance, the applicant must show that "(1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; '(2) that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the'essential character of the locality." [***20] Specifically, section 72-21 of the Zoning Resolution provides, among other things, as follows: "Findings Required for Variances "When in the course of enforcement of this resolution, any officer from whom an appeal may be taken under the provisions of Section 72-11 (General Provisions) has applied or interpreted a provision of this resolution, and there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such.provision, the Board may, in . accordance with the requirements set forth in this Section, vary or modify the provision so that the spirit of the law shall be [**365] observed, public safety secured, and substantial justice done. "Where it is alleged that there are practical difficulties or [*64] unnecessary hardship, the Board may grant a variance in the application of the provisions of this resolution in the specific case, provided that as a condition t6the grant of any such variance,,the Board shall make each and,every one of the following findings: "(a) That there are unique physical conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions [***21] peculiar to and inherent in the particular zoning lot; and that, as a result of such unique physical conditions, practical difficulties or unnecessary hardship arise in complying strictly with the use or bulk provisions of the resolution; and that the alleged practical difficulties or unnecessary hardship are not due to circumstances created generally by the strict application of such provisions in the neighborhood or district in which the zoning lot is located. "(b) That because of such physical conditions there is no reasonable possibility that the development of the zoning lot in strict conformity with the provisions of this resolution will bring a reasonable return, and that the grant of a variance is therefore necessary to enable the owner to realize a reasonable return from such zoning lot. This finding shall not be required for the granting of a variance to a non-profit organization. "(c) that the variance, if granted, will not alter the essential character of the neighborhood or district in which the zoning lot is located; will not substantially impair the appropriate use or development of adjacent property; and will not be detrimental to the public welfare. "(d) That the [***22] practical difficulties or unnecessary hardship claimed as a ground for a variance have not been created by the owner or by a predecessor in title. Where all other required findings are made, the purchase of a zoning lot subject to the restrictions sought to be varied shall not itself constitute a self-created hardship. "(e) That within the intent and,purpose of this resolution the variance, if granted, is the minimum variance necessary to afford relief; and to this end, the Board may permit a lesser .../retrieve? m=889fffbdc02348f278145bf8a9562d99&csvc=le&cform=& fintstc=FULL&do 11/13/2002 Get a Document-by Citation-67 A.D.2d 54 Page 9 of 12, variance than that applied for." From my review of this record, there is simply no basis for a finding of uniqueness. The record clearly indicates that the subject parcel is surrounded on the east and west by a large land area which is unimproved. This unimproved area is in [*65] precisely the same proximity to Northern Boulevard and the commercial uses prevalent thereon as is the subject parcel. In addition, this surrounding unimproved area shares the same topography, i.e., swampy soil condition, as the subject parcel. Accordingly, there is nothing unique about this parcel since all of the problems which afflict it are shared by all of the unimproved land in this area which [***23] is of substantial size. A claimed confiscation of value resulting in hardship with respect to a parcel of property involved in an application for a variance may result from the uses to which properties in the immediate neighborhood of the subject parcel have been put, or from the general deterioration of the neighborhood, either of which give rise to a claim that the subject ,property has been rendered unmarketable or unusable for the purposes to which it is restricted by the ordinance. However, where this claim is made "it is-seldom that such situation exists with respect only to the property which is the subject of the application. Usually the same undesirable neighborhood uses or deterioration affect other properties in the same area" (3 Rathkopf, Law of Zoning and Planning [4th ed], p 45-3). In this situation, a use variance cannot be granted. As stated in Rathkopf: "Difficulties or hardships shared with others go to the reasonableness of the ordinance generally and will not support a variance as to one parcel upon the ground of hardship." It is the uniqueness factor which differentiates an application for a use variance from a declaratory judgment action challenging [***24] [**366] a zoning classification. When the claimed difficulties are not unique to the particular parcel, the property owner's remedy is to apply to the legislative body for rezoning, and if unsuccessful to institute a declaratory judgment action challenging the zoning as unreasonable as to all parcels in the use district similarly situated and affected (Matter of Otto v Steinhilber, 282 NY 71, supra). The prescription against allowing a use variance to a particular parcel where the difficulty is shared with other property owners, is in harmony with the principle of division of powers between the appropriate legislative authority and the Zoning Board of Appeals which is an administrative body. The power to zone property is vested exclusively within the jurisdiction and authority of the appropriate legislative body. Indeed, following a successful declaratory judgment action challenging a zoning classification, the courts do not take it [*66] upon themselves to rezone the property involved. Rather, it is well established that following a successful court challenge to_a zoning classification, the property owner must seek legislative approval of a specific use through [***25], a rezoning of the property. A use variance on the other hand, when granted, confers the benefit of the use directly and immediately and by-passes the need for any legislative action by-the elected body entrusted with the zoning authority. If use variances were granted to property owners whose parcels contained difficulties shared by others, the net result would be that all the other similarly situated owners would also be entitled to use variances. Under those circumstances, an effective rezoning would be accomplished by the board, which would constitute an usurpation of legislative powers (see Matter of Clark v Board of Zoning Appeals of Town of Hempstead 301 NY 86: Ward v Zoning Bd. of Appeals of Town of Hartford, 153 Conn 141, 145). As the Court of Appeals stated in Matter of Levy v Board of Stds. &Appeals of City of N. Y. (267 NY 347, 352-353): "No power has been conferred upon the Board of Standards and Appeals to review,the legislative general, rules regulating the use of land * * * The Board does not exercise legislative powers * * * Its function is primarily administrative." By approving this use variance for the subject premises without a demonstration of .../retrieve? m=889fffbdc02348f278,145bf8a9562d99&csvc=le&cform=& fintstr=FiTLL&do 11/13/2002 Get.a Document-by Citation-'67 A.D.2d 54 Page 10 of 12 i [***26] uniqueness, Special Term and the majority are effectively conferring upon the Board of Standards and Appeals an unauthorized power to rezone -- a power which the courts have repeatedly and unequivocally refused to exercise in those cases where zoning restrictions have been judicially declared unconstitutional because of their confiscatory and discriminatory effects upon property. By permitting this use variance to stand,-this court is indorsing direct resort to the Board of Standards and Appeals and the circumvention of the rezoning or declaratory judgment approach, and is creating an unfortunate precedent for comparable relief for the rest of the unimproved land in the area. In addition, by legalizing this particular commercial use, this court is permitting the property owner to decide which commercial use is most beneficial for the property and conferring upon him a benefit not shared by any other property owner. Quite apart from the fact that this property is not unique and, therefore, not eligible for a variance, the findings required [*67] by subdivisions (b) and (e) of section 72-21 of the Zoning Resolution are not sustained by substantial evidence. As a result of pursuing [***27] this appeal by the appendix method_, the record is not as complete as it should be. The issue of whether the owner may obtain a reasonable return by utilizing the land for any of the purposes permitted by the Zoning Resolution either as a matter of right or by special permit use, poses a critical question which cannot be resolved on this record. The only evidence with respect to the value of the land was contained in an exhibit which purported to show the value for residential plots pursuant to several alternative residential plans. On the basis of [**367] that exhibit, the value of the land exceeded $ 500,000. On the basis of such a value, I have no doubt that the residential utilization of this land could not produce a reasonable return even without the additional expenses required for piling because of the swampy conditions. However, in the absence of any other explanation in the record as to how this value was arrived at, it is not unreasonable to infer that it reflects the purchase price - and/or total costs to date of this property to its owner., If such be the case, this use variance cannot be sustained because any hardship to the property owner must be considered as being [***28] self-created in accordance with the principle enunciated by the Court of Appeals in Matter of Douglaston Civic Assn. v Galvin (36 NY2d 1). I am well aware that subdivision (d) of section 72-21 of the Zoning Resolution of the City of New York, provides that "purchase of a zoning lot subject to the restrictions sought to be varied shall not itself constitute a self-created hardship." However, that provision is only speaking of those situations where the property owner paid a purchase price commensurate with the value of the property as presently zoned. I would find it most difficult to believe that any one would have paid a price comparable to the indicated value of this land with the intention of using it for residential purposes. It is more likely that this value reflects a purchase price that was paid by the owner with the expectation of either obtaining a change of zoning or a use variance. Therefore, in the case at bar, the value of the property as claimed by the property owner as a basis for computing a reasonable return, is obviously the value that the parcel would have had if a zoning change or use variance were granted. The Court of Appeals in Matter of Douglaston [***29] Civic Assn. v [*68] Galvin 36 NY2d 1, supra), has emphatically eliminated this construction of the concept of value of the property for the purposes of determining the possibility of reasonable return. In that case the court stated (p 9): "We would merely add that in affirming the decision below we do not intend to imply our approval of the Appellate Division's statement that the board acted correctly 'in apparently concluding that a projected return of income, for a parcel for which a variance is sought, may be based on present value, rather than its original cost.' (43 A D 2d 739, 740.1 While present value most often will be,the relevant basis from which the rate of return is to be calculated, it is important that the 'present value' used be the value of parcel .../retrieve? m=889fffbdc02348f278`145bf8a9562d99&csvc=le&cform=& fintstr=FLJLL&do 11/13/2002 Get-a Document-by Citation- 67 A.D.2d 54 Page 11 of 12 i as presently zoned, and notlithevalue that the parcel would have if the variance were, granted. While the record does not speak to this point, we suspect that the $ 121,000 figure here represents the value the parcel would have if granted the variance." (See, also, Matter of Clark v Board of Zoning Appeals of Town of Hempstead, 301 NY 86, supra; Matter of Gro, 440 Pa 552.) Another problem is presented [***30] by the fact that, on this record, it cannot be determined that the utilization of this property for outdoor tennis courts would not have provided a reasonable return for the owner. The Zoning Resolution permits, as a special use, outdoor tennis courts. In contrast to a use variance, the inclusion of a special use in the ordinance as one which is permitted under certain conditions "is equivalent to a legislative finding that the prescribed use is one which is in harmony with the other uses permitted in this district" (2 Rathkopf, Law of Zoning and Planning [3d ed], p 54-5). Until it has been established, and I submit that it has not been established on this record, that the property cannot provide a reasonable return by utilizing it for outdoor tennis courts, the variance for indoor tennis courts should not be approved. Finally, the board's finding that the variance granted for the indoor tennis courts is the minimum variance necessary to afford relief, cannot be sustained. Although a use [**368] variance was granted for a "one story * * * indoor tennis center", the property owner admits that this variance permits a 35-foot elevation for the tennis center and is "tantamount [***31] to two and a half stories according to the Building Department". Accordingly, the petition should be granted and the board's determination granting the use variance should be annulled. Gulotta, J. (dissenting). I dissent and would reverse the [*69] judgment, grant the petition and annul the determination of the respondent Board of Standards and Appeals. In my opinion, the "uniqueness" of intervenor's particular parcel has not been established in accordance with the standards set forth in Matter of Otto v Steinhilber(282 NY 71). The topographical condition upon which he relies exists generally throughout the immediate area, all of which is identically zoned. To this extent, I therefore concur in the dissenting opinion of Mr. Justice Suozzi. In light of this determination I find it unnecessary to reach any further issue. Under the circumstances here present, the intervenor's proper remedy lies in an application for a change of zone or in a declaratory judgment action, but not in an application for a use variance. Service: Get by LEXSEEO Citation: 1979 N.Y.App. Div. LEXIS 10075 View: Full Dates rime: Wednesday,November 13,2002-3:16 PM EST About LexisNexis I Terms and Conditions t Copyright© 2002 LexisNexis,a division of Reed Elsevier Inc.Al rights reserved. .../retrieve? m=889fffbdc02348f278145bf8a9562d99&csvc=le&cform=& fmtsh=FULL&do 11/13/2002 4 CITIZENS SAY. BANK v. BOARD OF ZONING 179 + • Che as 638 ALY.S2d 179 (A.D.3 Dept 1996) County Court's' order affirmed a judgment involving a 'small claims action 224 A.D.2d 797 brought by plaintiff, a landlord, against de- In the Matter of CITIZENS SAYINGS fendant, his former tenant. The standard of BANK, Respondent, review of a small claims'judgment is limited ndent. to whether "substantial justice has not been V. done between the parties according to the BOARD OF ZONING APPEALS OF the Divi ion, rules and principles of substantive law" VILLAGE OF LANSING, Appellant, (UJCA 1807). Consequently, "such judg- Supreme Court,Appellate Division, ments should not be overturned unless they Third Department are clearly erroneous" (Conover v. Burkich, 187 A.D2d 803, 589 N.Y.S.2d 675; se4 De- Feb. 8, 1996. _Mt for Santis V. Sears, Roebuck & Co., 148 AD2d i The Jua'" 36, 39, 543 N.Y.S2d 228; Dansky v. Terry Landowner brought Article 78 proceed- ; 1 judgment f Ryan's Colonial Volksuxlgen, 118 A.D2d 925, ing challenging determination of village Jlster Co ua 926,499 N.Y.S2d 492). board of zoning appeals denying landowner's 3 .lord appeal request for zoning variance to allow use of s a Division, [2] We conclude from the evidence that restaurant property as commercial office for ad to prove Juice Court could have properly found that computer consulting firm. The Supreme .vas liable plaintiff failed to meet his burden of proving Court,Relihan,J.,granted landowner's appli- by a preponderance of the evidence that de- cation, and board appealed. The Supreme fendant was liable to plaintiff for damage Court,Appellate Division, Crew,J.,held that allegedly done to plaintiffs apartment (see, landowner made requisite showings that f Angerami v- Nationwide Ins. Co., 133 property could not provide reasonable return %1isc2d 1086, 1088, 509 N.Y.S2d 298). as currently zoned, and that proposed use should not, Plaintiff brought this claim approximately a would not alter character of neighborhood. !arly erron year after defendant left the premises follow Reversed and remitted. ce Courts ,ng an inspection whereby plaintiff returned _ defendant's security deposit. Although ' ,51 .b,• 1Zoning and Planning«513 plaintiff complains about Justice Court's de-his . burde>i lay in returning certain papers necessary for Landowner seeking zoning variance al- hix appeal (see, UJCA 1704[a]), there is no lowing it to use restaurant property as office if evidence for computer consulting firm made requisite damage to +upport in the record for his claim that the court was biased or otherwise predisposed to showing that property perty could not provide ord inspected' favor defendant. "reasonable return" as currently zoned; nu- nant left merous uncontested reports and other proof •securityThe remaining arguments advanced by established that landowner would lose nearly -ing claim plaintiff have been examined and found un- �arEt left $400,000 if it converted existing restaurant t persuasive. into private home, over$200,000 if it demol- ' ' ORDERED that the order is affirmed, ished restaurant and built private home, and r wnthout costs. approximately $181,000 if it simply demol- ro.per. - . ished restaurant and sold vacant lot. McKie- a ney's Village Law§ 7-712-b,subd.2(b). in pro.per. MIKOLL,CREW and SPAIN,JJ.,concur. See publication Words and Phrases � for other judicial constructions and def- ►rid MIKO CARDONA,P.J.,not taldng part. initions. 1,JJ. 2. Zoning and Planning 0-513 "zw Landowner seeldng zoning variance al- j O KEY NUMBER SYSTEM i the County T lowing it to use restaurant property as office for computer consulting firm made requisite ),entered showing that proposed use would not alter ed a judgln character of neighborhood; proposed use 'own of would result in no change in outward appear- r I ' I i i � f a i 1801 - 638 NEW YORK SUPPLEMENT, 2d SERIES ance of existing restaurant, other than new office. Petitioner's subsequent application sign, and would actually result in much less for, inter alia, a use variance was denied by traffic and noise than was present when respondent following a hearing and,following building was operated as restaurant. a rehearing, denied again. Petitioner there- after commenced this CPLR article 78 pro- Albanese & Mulvey (Robert C. Mulvey of seeding to challenge respondent's actions, counsel),Ithaca,for appellant. and Supreme Court annulled respondent's ultimate determination. This appeal by re- Stephen M. Bowman, Ithaca, for respon- spondent followed. dent.: In order to obtain its use variance, peti- i Before MIKOLL,J.P.,and CREW, tioner was required to show unnecessary WHITE,CASEY and PETERS,JJ. hardship by demonstrating that(1)the prop- j CREW,Justice. erty cannot provide a reasonable return as currently zoned,(2)the proposed use will not j Appeal from a judgment of the Supreme alter the character of the neighborhood, (3) , Court (Relihan Jr.,-J.), entered March 3, the hardship results from the unique charas- 1995 in Tompkins County, which granted• teristics of the parcel, and (4) the hardship petitioner's application, in a proceeding pur- has not been self-created (Village Law § 7- suant to CPLR article 78, to annul a deter- 712-b[21@]; se4 Matter of Courtney v. City mination of respondent denying petitioner's of Albany B& of Zoning Appeals, 177 A.D.2d request for a use variance. 820, 576 N.Y.S2d 434). Here, respondent At a foreclosure sale held in Ar1993 found that April petitioner had not satisfied the petitioner paid$198,600 to acquire a 1%-acre first two of these criteria and specifically did Parcel located in the Pillage of Lansing, not make findings with regard to the latter I Tompkins County,which was improved by a two factors. 4,200-square-foot restaurant. The restau- rant operated from the early 1970s until ear- [l,21 Upon examining the record, we i ly 1993 when the failure of the restaurant's agree with Supreme Court that respondent septic system resulted in the business being irrationally concluded that petitioner had shut down. After acquiring the properly, failed to establish that the property could not which was located in a medium density resi- provide a reasonable return. The record dential zoning district, petitioner attempted contains numerous uncontested reports and to sell it as a restaurant, as that use was other proof establishing that petitioner would "grandfathered" by reason of its use in that lose nearly$400,000 if it converted the exist- capacity xistcapacity prior to the enactment of the Pil- ing restaurant into a private home, over lage's zoning ordinance. Subsequent engi- $200,000 if it demolished the restaurant and neering studies revealed, however, that the built a private home and approximately size and configuration of the parcel, com- $181,000 if it simply demolished the restau- bined with the unusually poor soil conditions rant and sold the vacant lot. Such-proof existing on the lot, meant that a new on-site plainly establishes, in "dollars and cents septic system suitable for restaurant use form", that petitioner could not yield a rea- could not be undertaken. Because a hook-up sonable return if the requested variance was { to the municipal sewer was not possible and denied(Matter of Village Bd, of ViL of Fay- petitioner was unable to purchase additional etteville v. Jerrold 53 N.Y2d 254, 257, 440 Property from adjoining owners,- petitioner N.Y.S2d 908, 423 N.E2d 385; accord Mat- explored the possibility of, inter alia, selling ter of Sheeley v. LeviiK 147 A.D2d 871,873, the parcel,as a vacant lot or converting the 538 N.Y.S2d 93). We are also unpersuaded building to a residential home consistent with that petitioner failed to prove that a grant of the zoning ordinance and found that these a variance would alter the character.of the alternatives were too costly. Petitioner then neighborhood inasmuch as the proposed use yeti contracted to sell the property to a computer as an office for a computer consulting firm consulting firm for use as its commercial would result in no change in the outward I MATTER OFA TRAVIS XX 181 Cite a.638 N.Y.S.2d 181 (A.D.3 Dept. 1996) appearance of the existing restaurant, other 'been neglected was granted by the Family than a new sign, and would actually result in Court, Otsego County, Nydam,J., and moth- much less traffic and noise than was present moth- er appealed. The Supreme Court, Appellate when the building operated as a restaurant Division, Mikoll, J.P., held that evidence did (se4 Matter of Dwyer v. Polsinello, 160 not warrant finding of neglect. A,D2d 1056,1058,553 N.Y.S2d 888). Reversed and petition dismissed. i Finally as noted previously,in denying pe- ' tidoner's application for the requested use `= 1. Infants X156 variance, respondent specifically declined to - address the remaining two prongs of the test, Evidence that mother whose children i s i.e., whether the hardship resulted from the were placed in foster care over weekend j unique characteristics of the parcel and was attempted to pick up her children early on self-created. Accordingly, this matter must Monday but did not return to pick up chil- be remitted to respondent and the petition dren until 5:00 p.m. on same day did not must be dismissed without prejudice to a warrant finding of neglect where police told I brther proceeding following respondent's fi- mother that she could not pick up her chil- �� ! nal determination of those issues(see, Matter dren until Monday and that children were of James H. Maloy Ina v. Zoning Bd, of safe in foster care and she was not informed Appeals of Town of Sand Lake, 168 A.D2d that neglect proceedings would be com- 874,876,564 N.Y.S.2d 544). menced if she did not contact Child Protec- t �' five Services by certain time as mother did ORDERED that the judgment is reversed, not put her children in any imminent danger. I .I on the law, without costs, petition dismissed McRillriey's Family Court Act § 1012(fj(i). j without prejudice and matter remitted to I i --,pondent for further proceedings not in- 2. Infants x156 ,. sistent with this court's decision. Mother's failure to give medical authori- zation or phone number at which she could MIKOLL, J.P., and WHITE, CASEY and be reached to persons babysitting her chit- PETERS,JJ.,concur. dren for weekend did not warrant finding of u; a neglect where mother left her children with TISIE responsible caretakers who appropriatelyEYNUMBERSYSTEM sought medical attention for injured child in absence of any evidence that children suf- fered adverse effects from mother's conduct. McKinney's Family Court Act § 1012(f)(i). i 224 A.D.2d 787 i! X71; In the Matter of TRAVIS -XX-I et til., Linden D. Summers III, Oneonta, for ap- Alleged to be Neglected Children. pellant. I j Steven Ratner, Department of Social Ser- ; Otsego County Department of Socialces� �Cooperstown,for respondent Services, Respondent; {; I Bruce Maxson, Law Guardian, Coopers- Janice "YY",' Appellant. town,for Travis"XX"and others. Supreme Court,Appellate Division, Before MIKOLL,J.P.,and CREW, i !' Third Department. 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