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Home My WebLink About4459d Z4, APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Serge Doyen James Dinizio, Jr. Robert A. Villa Lydia A. Tortora h�o��SpFFO(,�coGy CD H 2 W • BOARD OF APPEALS TOWN OF SOUTHOLD Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax(516)765-1823 Telephone(516)765-1809 FINDINGS, DELIBERATIONS AND DETERMINATION ADOPTED AT REGULAR MEETING OF MARCHI3, 1997 Appl. No. 4459 - ANTONE STRAUSSNER, JR. & LUCY STRAUSSNER PARCEL: 1000-41-1-10 & 11 as one lot (1000-34-1-16 as remaining lot) STREET & LOCALITY: 335 Main St., Greenport, NY DATE OF PUBLIC HEARING: March 13, 1997 FINDINGS (PROPERTY FACTS): DESCRIPTION: This property is located in an R-40 Residential Zone District, being a corner lot situate both on the westerly side of Main Street and the northerly side of Wilmarth Avenue. The lot referred to as 1000-34-1-16 contains a total lot area of at least 40,000 sq. ft., and the subject lot, referred to as combined numbers 10 and 11, of Section 41, Block 1, is vacant, unimproved land (all as more particularly shown on January 27, 1997 survey map submitted for consideration and made a part of the file under date of February 21, 1997). The subject lot contains a total land area of approximately .70 of an acre (ref: 1996 Assessors Property Cards). BASIS OF APPEAL: Building Inspector's Action of Disapproval dated November 15, 1996, which reads as follows: under Article II, Section 100-26, "under ARticle II, Section 100-24A.(1) the lots in question SCTM #1000-41-1-10 and 11, and 1000-34-1-16 were created by deed recorded in the Suffolk County Clerk's Office before June 30, 1983 and conform to the minimum lot requirements set forth in bulk schedule AA as of the Date of Lot Creation... Under Section 100-25A, the lots in question are located in R-40 Zone. Lots 1000-41-1-10 & 11 are nonconforming. Lot SCTM 34-1-16 is a conforming lot. These lots have merged as they have been held in common ownership at sometime since July 1, 1983. RELIEF REQUESTED BY APPLICANT: Approval of Waiver for nonconforming lot identified as 1000-41-10 and 11 (combined as one). J. �I J• Page 2 Appl. #4459 Waiver Request: Straussner Decision Rendered March 13, 1997 REASONS FOR BOARD ACTION. DESCRIBED BELOW: Lot 1000-34-1-16 is improved with a single-family dwelling and substantially conforms with the 40,000 sq. ft. minimum lot size required for this R-40 District. Antone A. Straussner, Sr. and his wife, Lucy, conveyed this lot on March 14, 1970 to their son, Antone A. Straussner, Jr., subject to a life estate for both parcents. Antone Straussner, Sr. is deceased. Lucy Straussner is alive and holds a "Life Estate in the premises" according to the single and separate search presented in evidence to the Board of Appeals February 20, 1997. The adjoining lots, 1000-41-1-10 and 1000-41-1-11 are vacant and consist of .31 and .38 of an acre, respectively. When originally created in 1927, the two lots consisted of four lots, according to the filed Map of Washington Heights. Antone A. Straussner, Jr. has been the sole owner of record of Lot Nos. 10 & 11 since 1970. Because of the small size of each lot, he has requested by his agent that both lots be combined to create a total lot size of 29,573 sq. ft. 1. The waiver will not result in a significant increase in the density of the neighborhood because the applicant seeks to reduce the degree of nonconformity of two substandard lots (10 & 11) by combining the two lots into one larger lot. No significant increase will occur from one single-family dwelling unit if the combined lot is improved. 3. 57 2. The waiver would recognize a lot that is consistent with and exceeds the size of lots in the neighborhood. Combined lots 10 and 11 are considerably larger than most lots in the neighborhood. The improved lots on both sides of Wilmarth Avenue contain lot areas ranging from .13 of an acre to .43 of an acre. The northeast side of Main Street consists of two commercial properties, one improved with a gasoline station and numberous small lots to the south, east and north. 3. The waiver would recognize the exterior dimensions of previously created lot lines. 4. The land will not require a change or alteration in contours or slopes, or substantial filling of land. RESOLUTION/ACTION: On motion by Member TORTORA, seconded Page 3 - Appl. #4459 Waiver Request: Straussner Decision Rendered March 13, 1997 by Chairman GOEHRINGER, it was RESOLVED, to GRANT this requested Waiver, for the reasons noted above. VOTE OF THE BOARD: AYES: Members Doyen, Goehringer, Dinizio, Villa, and Tortora. This resolution w duly a 77 GERARD P. GOEHRIN ER, C AIRMAN Approved for Filing DI-TE'R 7 77LED BY �� 9 /97 i::' i 11,16, Tewn C-- LEGAL NOTICE NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the following applications will be held for public hearings by the SOUTHOLD TOWN BOARD OF APPEALS, at the Southold Town Hall, 53095 Main Road, Southold, New York 11971, on THURSDAY, MARCH 13, 1997 at the times noted below (or as soon thereafter as possible): 6:45 p.m. Appl. $4459 --ANTONE AND LUCY STRAUSSNER. A Waiver is requested for two undersized lots, which waiver is based on the Nov. 15, 1996 Action of Disapproval by Building Inspector due to lot merger after 1983. The lots show creation by deed and conformity in size when "first created (ref: Building Inspector's notations). Location of Lands: 335 Main St. and 1045 Wilmarth Avenue, Greenport. R-40 Zone. 1000-34-1-16 as one lot, and 1000-41-1-10 & 11 as the other lot. 6:50 p.m. Appl.-.:-+4462 - VIVIEN and PETER SOO. A variance is requested for a reduced front yard setback for proposed new dwelling, based on the January 15, 1997 Action of Disapproval issued by the Building Inspector. Location of property: 265 Cedar Point Drive East, Southold. Required front yard: to be determined based on those established within 300 feet, same block, same side of street, or bulk schedule minimum of 35 ft. front, 35 ft. rear, 10 ft. and 15 ft. sides, pertaining to this lot size of 15,576+- square feet. County Parcel No. 1000-90-3-9. (Note: Setbacks Page 2 - Legal Notib . Board" of Appeals Hearings to be Held 3/13/97 from the water are determined by Town Trustees and NYS DEC, when no bulkhead or wall exists.) 6:53 P.M. Appl. No. 4464 - TOMIS AND KATHY KOURKOUMELIS. Request for a Variance under Article XXIV, Section 100-239.4, based upon the February 1997 Action of Disapproval issued by the Building Inspector, for permission to locate swimmingpool with fence enclosure with setback at less than the required 100 ft. setback. from the top of the bank or bluff along the Long island Sound. Location of Property: 54775 C. R. 48, Greenport, NY; County Parcel No. 1000-44-1-2. 7:00 p.m. Appl. No. 4453 - EDWARD AND EVELYN HALPERT. (Continued from 2/6/97). Request for Variance to alter and/or expand nonconforming building which has contained a nonconforming guest or living unit, separate and accessory to the main dwelling. Location of Property: 2125 Town Harbor Lane, Southold, NY; County Parcel ,#1000-66-1-31. Zone: R-40 Residential. Property size: 1.45+- acres. 7:10 p.m% Appl. No. 4429SE and 4430, by LILCO, as Contract Vendee. These applications apply to premises referred to as 8550 (vacant land) Main Road, Mattituck (near Laurel), identified as 1000-122-7-6.6, further identified as Lot $2 consisting of 35,798 sf. as shown on the Subdivision of Map of "Frank Murphy Garden Center" approved by the Southold Town Planning Board 4/12/1982. Applicant, as contract vendee, is requesting: (a) Appl. No. 4429SE - Special Exception for Use of Vacant Land as shown on plot plan for a compressor station building with fence enclosure in this "B" General Business District. (b) Appl. No. 4430 - Variance under Article XXIII, Section 100-231-A for permission to construct fence enclosure, which exceeds 'Page 3 - LegalNoti(_ Board of Appeals Hearings to be Held 3/13/97 maximum fence height restriction of 6 feet when located in the front yard, and which exceeds -6-1/2 feet in or along side and rear yards. 7:30 p.m. Appl. No. 4463 - LAWRENCE SUTER d/b/a BLUEWATER SEAFOOD. This is a Variance based upon the January 6, 1997 Action of Disapproval issued by the Building Inspector, " which states that a "permit to construct metal frame with canvass roof (addition) to existing retail fish market is disapproved on the following grounds: Under Article )MV, Section 100-244B, proposed addition to existing retail fish market with accessory seasonal single service utensil seating, proposed construction is on a nonconforming lot located in the B General Business District, has insufficient side yardof ... less than the required 10 feet. Action required by the Zoning Board; action also required by the Planning Board...." Location of Property: 11400 Route 25, Mattituck, NY; County Parcel No_ 1000-122-3-7. The Board of Appeals will at said time and place hear any and all persons or representatives desiring to be heard in the above applications. Written comments may also be submitted prior to the conclusion of the subject hearing. The above hearings will not start before the times designated, and some may be carryover hearings. The files may be reviewed during regular business hours for updates or new information. If you have questions, please do not hesitate to, call 765-1809. Dated: February 19, 1997. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER, Chairman By Linda Kowalski TOWN OF SOUTHOLD BUILDING DEPARTMENT SOUTHOLD, N.Y. NOTICE OF DISAPPROVAL DATE: ............. To...Abigail A. Wickham (Agent) ANTONE A. STRAUSSNER, JR. ..................................... P.O. BOX 1424 ........................................ MATTITUCK, N.Y. 11952 ........................................ PLEASE TAKE NOTICE that your application dated ..00T..31, .......... 19.96_._ for permit to DETERMINATIONOF MERGER OF LOTS ....... ................................ . at Location of Property ._.,1045 WILMARTH AVE.. d. 335. MAIN ST. GREENPORT.7N_): House No. Street Hamlet County Tax Map No. 1000 - Section ..41 BLOCK ..._I.._.._. LOT 10 & II 34._.... I 16.... ----- Subdivision Filed Map No. ....... ..Lot No. ....... is returned herewith and disapproved on the following grounds UMBR A.RT;IC),E. M. SECTION. 100-24 A.(1) THE LOTS IN QUESTION SCTM #1000-41-1-10 & 11 and 1000-34-1-16 WERE ............................................................................................ CREATED BY DEED RECORDED IN THE SUFFOLK COUNTY CLERK'S OFFICE BEFORE JUNE 30, 1983 •..................•-•-----......_...................--........._...._..............._._..._ AND CONFORM TO THE MINIMUM LOT REQUIREMENTS SET FORTH IN BULK SCHEDULE AA AS OF THE .................................... ............................... ._......... ._........... . DATE OF LOT CREATION. ............................................................................................ UNDER SECTION 100-25 A THE LOTS IN QUESTION ARE LOCATED IN A R40 ZONE. LOTS ........................................................................................... SCTM 1000-41-1-10 6 11 ARE NONCONFORMING. LOT SCTM 134=11-16 IS A CONFORMING LOT. ................................................. :........................... THESE LOTS HAVE MERGED AS THEY HAVE BEEN HELD IN COMMON OWNERSHIP AT SOMETIME ........................................ ......................................... SINCE JULY 1, 1983. ......... ............................ _............................................ ._..._.._. 1-7 ?SR. ILDI INSPECTOR THOMAS J. FISHER �ml' RV 1/80 APPLICATION FOR WAIVER UNDER SECTION 100-2 �57c� REE This review is for lots which have separate deedsCreCorded prior to 1983 and -undersized. A merger determination has been issued by the Town Building Inspector (copy attached). JAN 211997 The ,zoning of my parcel is presently: R-40, The size requirement for this zone is: 40.000 square feet per parcel. County Tax Map Parcel Nos: 1000-41 _ 1 _10 & 11 S9 !d Town Clerk I (we), Lucy Straussner and Antone A. Straussner, Jr. , as owners of the contiguous lots shown on the attached deeds, request a review determination by the Board of Appeals to determine whether or not these parcels qualify for a "waiver" under the merger provisions of Article 11, Section 100-26 of the Southold Town .Zoning Code. I hereby submit all of the following documents for reliance by the Town of Southold in making this review determination: 1. Copies of my recent tax bill for both (ail) lots. 2. Copies of deeds dated prior to June 30, 1983 for all lots 3. Copies of current deeds of the parcels under review. 4. Copy of the current County Tax Map far my neighborhood. 5. S150.00 application check which is not refundable if this waiver is denied. I understand that if an unfavorable waiver action is issued by the Town of Southold, that I reserve the right to file for a subdivision and, if necessary, area variances under the usual procedure. By making this application, I hold the 'Town of Southold free and harmless from any and all claims aftd liability resulting from the issuance of a waiver. (Applicant and Owl, Antone A.-Straussner, Jr. Sworn to before me this IlAt day o f (0 19 fro Notar, ublic ,11 (Appl=,icaht and owner) Lucy Straussner KATHLEEN J. LLOYD NOTARY PUBLIC, State of New York No. 4798091, Suffolk County. Term Expires March 30, 19 9g' A Waiver is hereby approved denied (delete appropriate actioai) based upon the above documentation. issued by Reasons for anplication(to continue on next page)- zbata.wl295 APPLICANT'S REASON #1: Tax Map # 1000-34-1-16 containing the residence is owned by Lucy Straussner, as life .tenant,. and Antone A. Straussner, Jr., as Remainderman. Tax Map # 1000-41-1-10 & 11 is owned solely by Antone A. Straussner, Jr. Therefore, the parcels have not merged because the ownership is under different names. Although Applicant is receiving tax bills for three (3) parcel, Applicant's request is to confirm the existence of only two (2) separate parcels. APPLICANT'S REASON #2: Applicant's parcels were separately created on -March 14, 1970. Bulk Schedule AA provides for the minimum area of 20,000 square feet - Width 100 feet, Depth 150 feet. Each parcel exceeds those requirements.. (PLEASE USE ADDITIONAL SHEETS it needed.) OWN OF SOUTHOLD V OROPERTY RECORD CARD 26 VILLAGE VI LL G DISI. SUB.. L OWNER STREET Cal FO MER OWNER N --ACR. S W TYPE OF BUILDING, I W FARM COMM.�OMM RES. SEAS. v VL. FARM CB. MICS, Mkt. Value V M LAND IMP. TOTAL DATE DATE REMARKS kREMA j/0 p S 4d-4 AGE BUILDING CONDITION NEW NORMAL BELOW ABOVE FARM Acre Value Per Acre vGlue, WATER FRONTAGE ON WATER Tillable Woodland FRONTAGE ON ROAD Meadowland DEPTH House Plot BULKHEAD Total CK t fO N OF SOUTHOW PROPERTY RECORD CARD OWNER STREET"' — VILLAGE- DIST. SUB. LOTS J a vrnas 6s FO ER OW ER � --N rte rpt LrsvlEr fE S W TYPE OF BUILDING RES. SEAS. T-- VL. �/-- FARM - COMM. CB. MICS. Mkt. Value ---------`--- LAND IMP. TOTAL DATE REMARKS r r , AGE BUILDING CONDITION----_--..---__—---.----.--_----^.----�_-.—_., NEW NORMAL BELOW ABOVE FARM. --- Acre --Value Per - Acre ----- Value Tillable FRONTAGE ON WATER — Woodland FRONTAGE ON ROAD G Meadowland DEPTH House Plot BULKHEAD Total I DOCK N -- /- /14 TOWN OF SOUTHOLD 'OROPERTY RECORD CART O OWNER STREET VILLAGE DIST. - SUB. LOT FORMER OWNER N , ! ACR. , 97� , S W TYPE OF BUILDING - RES.j ��j — SEA VL, FARM COMM. CO.' MICS. Mlct. Value- --------- � LAND IMP. TOTAL DATE REMARKS ;TZ/---- r� (9 C) 0 O AGE � BUILDING CONDITION —---`—'------------�—_---- ---_ - NEW NORMAL. BELOW ABOVE-- — — FARM Acre Value Per Acre Value Tillable FRONTAGE ON WATER Woodland FRONTAGE ON ROAD A a Meadowland _ _ DEPTH. House Plot BULKHEAD Total DOCK TRIM U -±LJ -- - ---- -- M. Bldg. Extension V 3-"Ak 7 40-0-- - 41, ------ o -q - Extension Extension Foundation Wqa" 51, Barth Dinette inetle Porch Basement FloorsQac i K. Porch Breezeway (a Ext. Walls FirgPlace Ve .5 Interior Flhish Heath LR. DR. Garage Patio 0-0 04/,Vreartion 0 ✓ 1s e Roof Room Rooms I st Floor Room's 2nd Floor BR. FIN..B O. B. Total Dormer Driveway 151 - --1 �- --F--- -- N N 1-1 rite ED LA , :IONI-6z Q �Z5wo �toov' I hereby submit all of the following documents for reliance by tine Town .of Southold in making this review determination: 1. Copies of my recent tax bill for both (all) lots. 2. Copies of deeds dated prior to June 30, 1983 for all lots 3. Copies of current deeds of tine parcels under review. 4. Copy of the current County Tax Map for my neighborhood. 5. $150.00 application 'clieck which is not refundable if this waiver is denied. I understand that if an unfavorable waiver action is issued by the ws that I reserve tale right to file for a the usual APPLICATION FOR WAIVER UNDER Stu ,ION 10 0 - 2 /i`� 0 0` necessary, area this application, variances I hold the under 'Town of Southold procedure. making free and harmless from any and all claims and liability resulting This review is for lots which have separate deeds�redorded prior. to RECEIVE® 1983 and -undersized. A merger determination has been issued by the Town Building Inspector (copy attached). JAN 1 1997 The .zoning of my parcel is presently: R-40 square feet The size requirement for this zone is: 40,000 per parcel. County Tax Map Parcel Nos: 1000-41 _ 1 _ 10 & 11 Soutiold To= Clerk as owners of tile I (we), Lucy Straussner and Antone A. Straussner, Jr. contiguous lots shown on the attar -lied deeds, request a review determination by the Board of Appeals to determine whether or riot these parcels qualify for a "waiver" under the merger provisions of Article II, Section 100-26 of the Southold Town.zoning Code. I hereby submit all of the following documents for reliance by tine Town .of Southold in making this review determination: 1. Copies of my recent tax bill for both (all) lots. 2. Copies of deeds dated prior to June 30, 1983 for all lots 3. Copies of current deeds of tine parcels under review. 4. Copy of the current County Tax Map for my neighborhood. 5. $150.00 application 'clieck which is not refundable if this waiver is denied. I understand that if an unfavorable waiver action is issued by the Town of Southold, that I reserve tale right to file for a the usual subdivision and, if By necessary, area this application, variances I hold the under 'Town of Southold procedure. making free and harmless from any and all claims and liability resulting from the issuance of a waiver. (Applicant an' Owrrer) An -tone A.,. Straussner, Jr. ( App I carr t and Owner) Sworn to before me this Lucy Straussner //,tt day of p��2 c�,r��lri 1 9 , 901. Notes ubl is KATHLEEN I LLOYD NOTARY PUBLIC, State of New York No. 4798091, Suffolk County Term Expires March 30, 19 ?r A Waiver is hereby approved denied (delete appropriate action) based upon the above documentation. Issued by Reasons for zbata.w1295 application("" continue on next page)- i APPLICANT'S REASON #1: Tax ,Map # 1000-34-1-16 containing the residence is owned by Lucy Straussner, as life tenant, and Antone A. Straussner, Jr., as Remainderman. Tax Map # 1000=41-1-10 & 11 is owned solely by Antone A. Straussner, Jr. Therefore, the parcels have not merged because the ownership is under different names. Although Applicant is receiving tax bills for three (3) parcel, Applicant's request is to 99nfirm the existence of only two (2) separate parcels. APPLICANT'S REASON #2: Applicant's parcels were separately created on March 14, 1970. Bulk Schedule AA provides for the minimum area of 20,000 square feet - Width 100 feet, Depth 150 feet. Each parcel exceeds those requirements.. (PLEASE USE ADDITIONAL SHEETS if needed.) Page 2 - Legal Notif Board" of Appeals Hearings to be Held 3/13/97 from the water are determined by Town Trustees and NYS DEC, when no bulkhead or wall exists . ) 6:53 p.m. Appl . No. 4464 - TOMIS AND KATHY KOURKOUMELIS . Request for a Variance under Article XXIV, Section 100-239.4, based upon the February 1997 Action. of Disapproval issued by the Building Inspector, for permission to locate swimmingpool with fence enclosure with setback at less than the required 100 ft. setback. from the top of the bank or bluff along the Long Island Sound. Location of Property: 54775 C.R. 48, Greenport, NY; County Parcel No. 1000-44-1-2. 7:00 p.m. Appl . No. 4453 - EDWARD AND EVELYN HALPER.T . (Continued from 2/6/97) . Request for Variance to alter and/or expand nonconforming. building which has contained a nonconforming guest or living unit, separate. and accessory to the main dwelling. Location of Property: 2125 Town Harbor Lane, Southold, NY; County Parcel #1000-66-1-31. Zone: R-40 Residential. Property size: 1.45+- acres. 7:10 p.m-. Appl. No. 4429SE and 4430, by LILCO, as Contract Vendee. These applications apply to premises referred to as 8550 (vacant land) Main Road, Mattituck (near Laurel) , identified as 1000-122-7-6.6, further identified • as Lot #2 consisting of 35,798 sf. . as shown on the Subdivision of Map of "Frank Murphy Garden Center" approved by the Southold Town Planning Board 4/12/1982. Applicant, as contract vendee, is requesting: (a) Appl. No. 4429SE - Special Exception for Use of Vacant Land as shown on plot plan for a compressor station building with fence enclosure in this "B" General Business District. (b) Appl. No. 4430 - Variance under Article XXIII, Section 100-231-A for permission to construct fence enclosure, which exceeds 10 • y ' Page 3 - Legal Noti" - Board of Appeals Hearings to be Held 3/13/90 maximum fence height restriction of. 6 feet 'when located in -the front yard, and which exceeds 6-1/2 feet in or along side and. rear yards.. 7:30 -p.m. Appl . . No. 4463 - LAWRENCE SUTER d/b/a BLUEWATER SEAFOOD. This is a Variance based upon the January 6, 1997 Action of Disapproval issued by the - Building Inspector, - which states that a "permit to construct metal frame -with canvass roof (addition) - to existing retail fish market is disapproved on the following grounds: Under Article XXIV, Section 100-244B, proposed addition to existing retail fish .. market with accessory seasonal single service utensil seating, proposed construction is on a nonconforming lot. located in the B General. Business District, has insufficient side yard of ... less than the required 10 feet. Action required by the Zoning Board;. action also 'required . by the Planning Board...." Location of Property: 11400 Route 25, Mattituck, NY; County - Parcel No. 1000-122-3-7. The Board of Appeals will at said time and place hear any and all persons or representatives desiring to be heard in the above applications. Written comments . may also be submitted prior to the conclusion of the subject hearing. The above hearings will not start before the times designated, and some may be carryover hearings. . The files may be reviewed during regular business hours for updates or new information. If you have questions, please do not hesitate to call 765-1809. Dated: February 19, 1997. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER, Chairman By Linda Kowalski x R 13 � �� ro �.�o i. 6 r. � is .ra � . �i'Jj j,'h �__ , n . • ...' x 7 /v "j- 33 � o ZZ 9 7 , J, S o s. '. o. �o r. L7Jf �Ll.'rl •--G'1'• � M �,� << V ,` , . ' F}pr.�• � Fi T � s So - V •° J /o c 5• � K � i sj f' v y r ` ` " zo. v d. a� r-1 N • s6 s7 t5- N ° \ ! J X. 0 7 Iu o MAP O F � 3 4 WASHINGTON HE/GHTS �y u s/runre �r I GREENf-ORT SUFFOLK COUNTY Ncw YoRrt / hereby cerr,�y /h&ef^ �"hiz orae �• Y! Sarh 6ofr /inn M e 1 7 �3 was mode by nye limo/.. ae/urr/ 5ary"ya Con,P Deccevbcr 8, 4074-cer Green Ne w YcreS C 11"if5c I Na /.1 a? • l March)18, 1997 Abigail A. Wickham, Esq. P.O. Box 1424 Main Road Mattituck, NY 11952 Re: Waiver under Merger Law (Straussner) Dear Ms. Wickham: Please , find enclosed a copy of board's determination, pursuant to the Resolution adopted at its Regular Meeting of March 13, 1997. A copy of the same has been furnished to the Building Inspectors' Office for an update (re: the open application for a building permit) . If you have any questions, please do not hesitate to call. Very truly yours, Linda Kowalski Enclosure Copy of Decision to: Southold Town Building Inspectors' Office Page 3 - Appl. #4455 Waiver Request: Straussner Decision Rendered March 13, 1997 by Chairman GOEHRINGER, it was RESOLVED, to GRANT this requested Waiver, for the reasons noted above. VOTE OF THE BOARD: AYES: Members Doyen, Goehringer, Dinizio, Villa, and Tortora. This resolution w duly ad GERARD P. GOEHRINGER, C AIRMAN Approved for Filing March 19, 1997 Abigail A. Wickham, Esq. P.O. Box 1424 Main Road Mattituck, NY 11952 Re: Waiver under Merger Law (Straussner) Dear Ms. Wickham: Please substitute the enclosed new Page 2, which corrects paragraph #2 (and removes the word "not") . Very truly yours, Linda Kowalski Enclosure Copy of Decision to: Southold Town Building Inspectors' Office Page 2 - Appl. #4459 Waiver Request: Straussner Decision Rendered March 13, 1997 REASONS FOR BOARD ACTION, DESCRIBED BELOW: Lot 1000-34-1-16 is improved with a single-family dwelling and substantially conforms with the 40,000 sq. ft. minimum lot size required for this R-40 District. Antone A. Straussner, Sr. and his wife, Lucy, conveyed this lot on March 14, 1970 to their son, Antone A. Straussner, Jr., subject to a life estate for both parcents. Antone Straussner, Sr. is deceased. Lucy Straussner is alive and holds a "Life Estate in the premises" according to the single and separate search presented in evidence to the Board of Appeals February 20, 1997. The adjoining lots, 1000-41-1-10 and 1000-41-1-11 are vacant and consist of .31 and .38 of an acre, respectively. When originally created in 1927, the two lots consisted of four lots, according to the filed Map of Washington Heights. Antone A. Straussner, Jr. has been the sole owner of record of Lot Nos. 10 & 11 since 1970. Because of the small size of each lot, he has requested by his agent that both lots be combined to create a total lot size of 29,573 sq. ft. 1. The waiver will not result in a significant increase in the density of the neighborhood because the applicant seeks to reduce the degree of nonconformity of two substandard lots (10 & 11) by combining the two lots into one larger lot. No significant increase will occur from one single-family dwelling unit if the combined lot is improved. 2. The waiver would not recognize a lot that is consistent with and exceeds the size of lots in the neighborhood. Combined lots 10 and 11 are considerably larger than most lots in the neighborhood. The improved lots on both sides of Wilmarth Avenue contain lot areas ranging from .13 of an acre to .43 of an acre. The northeast side of Main Street consists of two commercial properties, one improved with a gasoline station and numberous small lots to the south, east and north. 3. The waiver would recognize the exterior dimensions of previously created lot lines. 4. The land will not require a change or alteration in contours or slopes, or substantial filling of land. RESOLUTION/ACTION: On motion by Member TORTORA, seconded TRANSCRIPT OF MARCH 13, 1997 HEARINGS SOUTIIOI TOWN ZONING BOARD OF APF LS 6:48 ra.m. Aural. #4459- ANTONE & LUCY STRAUSSNER. A is Waiver is requested for two undersized lots, which waiver is based on the Nov. 15, 1996 Action of Disapproval by Building Inspector due to lot merger after 1983. The lots show creation by deed and conformity in size when first created ( ref . Building Inspector's notations) . Location of Lands: 335 Main St. and 1045 Wilmarth Avenue, Greenport. R-40 Zone. 1000-34-1-16 as one lot, and 1000-41-1-10 & 11 as the other lot. CHAIRMAN VOEHRINGER : I have a copy of a survey produced by Anthony Lewandowski, dated January 27, 1997, and I have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. I believe, Ms. Wickham, you are representing these fine people? flow are you tonight? ABIGAIL WICKHAM, ESQ.: Fine, thank you. Our application tonight is basically two -fold. The first application is to vary the decision of the Building Inspector, based on our contention that the lots very clearly have not merged - that there is a distinct legal title between the two lots. In the event that the Board does not accept that argument, we then ask that the Board (coughing) Waiver of Merger Statute - that a waiver is appropriate based on the relative size of the lots. 'These would be the other lots in the neighborhood and other considerations I will go into. On the first argument: I presented information to the Building Inspector and to your office including a thing on Seperate Search and copies of the deed indicating • that the lot containing the house is in the name of Mrs. Lucy Straussner as lifetime and Antone Straussner as remainder life. Mrs. Straussner has a legal life interest that was created by deed - herself and her husband - Clrlate a number of years ago. The other parcel, -which is actually two Seperate tax plots but we are asking that it be approved as just one building lot, is in the name of Antone Straussner, alone. It's fairly basic Real Estate Law that a legal life tenancy is an interesting property which differentiates it from the fee interest that. Mr. Straussner Bolds on the vacant lot. I'd like to give the Board - and it's important that the contention some statutes and case law and other information. The definition of a life estate or other types of matters in which real property can be bought is Page 2 - Transcript of _ _-aussner Hearing Regular Meeting of Marcli 13, 1997 Southold ']'own Zoning Hoard of Appeals contained in the Estates Powers of Trust 'Law, Section 6-1.1 which states: "Estates in property as the duration are classified as follows:" and then there are a number of categories, the first of which is "Fee Simple Absolute". 'I'liat is how Mr. Straussner owns the vacant lot. There are several others, the fourth of which is "Estates for Life" a►id that is ]row Mrs. Straussner owns her interest in the residence and Mr. Straussner owns the remainder of the interest. Mr. Straussner, by the way, is her son. CHAIRMAN: What was the second part that you just said? You said "Fee Simple Absolute" on the liouse and you said life estate was... MS. WIChIIAM: Estates For Life. I also have to submit to you excerpts from Warren's Weed on Ileal Property which is a well recognized treatise iii the legal professioii on Real Property Law indicating and assigning authority, which I also incorporate, that a life tenant may utilize and . enjoy real property in the same manner as any other owner. Life tenants have the right to mortgage property. They have the right to sell their life estate. They have the right to lease their life estate. They have the obligation to pay the taxes. They have an ownership interest in that property for the term of their life. So, very clearly under the Tower Code - the way it is written - the property on which the house is located is held by two people: the life tenant and the remaiiider man. This distinguishes it from the ownership of the vacant lot wliicli is - held by the individual, Mr. Straussner. I also have quite a bit of case law going back many, many years on this wliich I will try to submit for the record as well. I'll hand that. out at the conclusion. Irl summary, I feel that the Building Inspector was in error in stating that there has been a legal merger of two lots. Tliey are totally seperate in title. I might add that Mrs. Straussner is alive. If she died, that would terminate her life interest. CHAIRMAN: It's also my understanding again that when you started this tonight, that Lots 10 & 11 are to stand as they are. Is that what you're telling me? MS. WICKHAM: Tax -wise CHAIRMAN: Tat -wise. MS. WICKHAM: 10 and 11 were formed one lot and Tax Lot 16 would be the other lot. CHAIRMAN: 'flat is correct. MS. WICKHAM: The second part of my presentation is - should the Board, for some reason, feel that that's not correct - that there's a differentiation in tido, I would assume that we certainly do qualify for a Waiver of Merger. These lots were created by deed, which I've submitted to the record many years ago. The proposed two lots are vastly larger than the other lots in the neiglib orhood. In fact, the vacant lot, which is Tax Map 10 & 11, not only contains two tax lots but four lots on file uiow. It contains, based on information from the Pake 3 - Transcript of--aussner Bearing Regular Meeting of March 13, 1997 Southold Town Zoning Board of Appeals surveyor, 29,533 sq. ft. You have on record the tat maps showing the sizes of the surrounding lots. The only difference, I would have to point out, would be the very, very large lot to the rear which is mostly wetlands so that is not a buildable lot. I don't think it will be developed to consider this to be a precedent for that - any subdivision on that property. CHAIRMAN: You're referring to the 40,000 sq. ft. lot that the house is on? MS. WICKHAM: I'm referring to the 8 acre lot behind it. MEMBER TORTORA: 10 and 11 were slightly larger than 16 and I thought 16 was conforming laws - is it in excess of 45 sq. ft.? MS. WIChIIAM: I believe it is. MEMBER TORTORA: According to all the documents you submitted, I believe it is. MS. WIChHAM: I believe it is. I would have to check my notes on that. Yes, it is. I was talkhig about the precedent that might be established. You were concerned about the size of the 8 acre parcel behind it that is riot a developable lot. MEMBER TORTORA: I did go down to the Assessor's Office yesterday and poked at some of the surrounding lots in the area and on Wilmarth Avenue and, according to his record, on both sides of the street I think the largest parcel (simultaneous discussion) is .43 acres and the smallest is .13. So, 10 and 11 would be combined in one lot and, according to his estimate, it would be the largest lot in the area. MS. WICKHAM: Would be the what? MEMBER TORTORA: Largest lot. MS. TORTORA: Could you also describe some of the property adjacent to Main Street to the east and the surrounding neighborhood - the gas station. MS. WICIiIIAM: There is a considerable amount of commercial usage over there. `here is a gas station; to the south there is a monument business that has been there for some time. There's a full range of commercial usage across the street to the east. CHAIRMAN: I have a question - did you have something else that you wanted to say? MS. WICKHAM: No. I have something else that I want to submit. CHAIRMAN: Right now? MS. WICKHAM: Yes. Page 4 - Transcript of--11Issner IIearing Regular Meeting of March 13, 1997 Southold Town Zoning Board of Appeals CHAIRMAN: O.K. You were going to give me that documentation. O.K. We'll start with Mr. Villa. Any questions? MEMBER VILLA: I don't really have any questions. CHAIRMAN: Mr. Dinizio? MEMBER DINIZIO: Let me ask you this question as a lawyer - we'll get free advice here. If I lived with a son and I wanted to sell the lot #16 and I went to a real estate agent to sell this lot - could I sell it? Just that lot? MS. WICKHAM: You can sell anything. MEMBER. DINIZIO: No, I mean I'm talking about with a life tenant in it. MS. WICKHAM: Mr. Straussner, yes - he could sell that property and anybody else could buy it. You could buy it but it would be subject to Mrs. Straussner's life interest. She has the absolute right to access that property for her entire; life. CHAIRMAN: To possess the improvement on the property or the entire piece of property? MS. WICKIIAM: The entire piece of property. CHAIRMAN: O.K. MS. WICKHAM: She has a life estate to the fullest on that property. CHAIRMAN: In reality, have you ever seen anybody legitimately segmented into a portion of the property in reference to a life estate - can it clearly state the improvement only? MS. WICKIIAM: A life estate care be granted as to any portion of a piece of property. `Phis was not the case. This deed clearly states (coughing) ... CHAIRMAN: Mr. Doyen? MEMBER DOYEN: No questions, thank you. CHAIRMAN: Mrs. Tortora - anything else? MEMBER. TORTOItA: 'There are also wetlands indicated but that's on lot 16. CHAIRMAN: You raise an interesting issue in reference to the first' part of your presentation. We would have to go back to our Town Attorney and have her review the documents and then we would have to meet with her - which I have no problems with. Would you like us to do that and to deal with that aspect or... Page 5 - Transcript. of _ _ratissner Ilearing Regular Meeting of March 13, 1997 Southold Town Zoning Board of Appeals MS. WICKHAM: It is my understanding that the Building Inspector did consult with the Town Attorney prior to the issuance of Notice of Disapproval. CHAIRMAN: I see. MS. WICKHAM: IIe was given advice which I disagree with and that's why I'm submitting this documentation to you. CHAIRMAN: I see MS. WICKHAM: I certainly have no objection if you want to show her this and get her opinion on it. CHAIRMAN: Yes. MEMBER. TORTO I?A: 'There are two methods for relief - for determination that they're not merged because of the legal life estate and also for a waiver. I'm sure you would have no objection to us acting on the granter for a Waiver of Request. CHAIRMAN: Well, that basically is the question. MS. WICKHAM: It is important that your Board construe the Code in the first instance. CHAIRMAN: Well, that's basically my question. So, I mean my point is that I think what we'll do is we'll hold this in abeyance and submit the documentation to the Town Attorney and then meet with the Town Attorney and then deal with that aspect of it. MS. WICKHAM: I'm looking for determination that the lots are not merged. MEMBER TORTORA: Would you like the hearing to be held open until the next meeting? MS. WICKHAM: No, I've submitted everything. MEMBER. TORTOR.A : O.K. CHAIRMAN: O.h., good. MS. WICKHAM: I look forward to a determination as soon as possible. Thank you . CHAIRMAN: Thank you. Is there anybody else who would like to speak in favor of this application? (No one wished to speak.) CHAIRMAN: Is there anybody who would like to speak against the application? Anybody like to say something back there? Page G - Transcript of .,«,aussner Bearing Regular Meeting of March 13, 1997 Southold Town Zoning Board of Appeals MAN'S VOICE FliOM I3ACIi OF ROOM: No, I think we're all set. CHAIRMAN: You're all set. hearing no further comment I'll make a motion closing the hearing, reserving decision until later. All in favor? (All ayes.) 6 AcKET64AN V. STATE or NEW YoRK. Court of Claims, February, 1951. (Vol. 1 I i tive act of negligence upon the part of. the municipality, or it employees, which contributed to the happening of the acciden' The specification of negligence against the municipality wa strictly one of omission. Its negligence, if any, was merel passive' a failure to perform a governmental function. A indicated under the authorities cited, there appears, to be n basis for imposing liability upon the Village of 1\9a111aroned On all of the evidence, the court is constrained to grant th motions and dismiss the complaint. Motions granted, wit appropriate exceptions to plaintiff. Settle orders on notic, LovINA J. ACKERMAN, Claimant, V. STATE Or NEW YORK, Defendant. (Claim No. 30231.) Court of: Clnims, February 8, 1951. Eminent domain — life tenant as party to proceedings—G) part claimant's land appropriated by State; claimant's father by deed has li estate in claimant's land; father in State hospital; State served notice appropriation upon father and upon director of State hospital; claimai entered into agreement with State fixing damages as $3,200 but agreeme not carried out by payment by State or by claimant's securing releases fro " other persons " interested in land; since terms of agreement not fulfille court cannot enforce them; agreement of claimant with State not ,executor accord— (2) claimant's father as life tenant is owner of property and nece sary party to claim who should be interpleaded regardless of his age or cond tion— (3) claimant's father as inmate of State hospital should have con mittee of property appointed which may be done upon application by direct of State hospital; when committee appointed, claimant's father may be inte pleaded; court will then have jurisdiction of all parties and can proceed make award — (4) claimant not qualified to institute proceeding under Civ Practice Act (art. 82-A) to release father's claim; moreover, petition requir allegation of amount offered and here no amount offered by State compensation to claimant's father. 1. Claimant acquired ownership of certain real property, a portion of whic, tins been appropriated by the State, by means of a deed from her fal.her an mother in which her father and mother reserved a life use to themselves. Clain ant's father is still living; her mother is dead. Claimant entered into an agrea ment with the State whereby she agreed to accept $3,200 in full adjustmer of her claim including the value of the property and damages caused by tl' appropriation. The agreement required claimant to execute a full release of n claims which "other persons have or may have by reason of the aforesni appropriation of property ". Her father is in a State hospital and lie and ti director of the hospital were served with a notice of appropriation. The Star has not paid claimant the $3,200 and claimant has not complied with the prow Sion of the agreement requiring her to obinin releases. Sinee. the terms c the agreement have not been fulfilled by cit.her pnrl;y, the court is without juri diction to enforce the agreement. The exaction, that elaimant proceed undo article 82-A of the Civil Practice Act to release her father's claim before tl State would pay her the amount ad eed upon for her interest was not justifie AOSERMAN V. STATE of NEW .YORK. ".77 Misc. 761 Court of Claims, February, 1951. by the terms of the contract and amounted to nonperformance on the part of —the. Statc:', Consequently, the instrument is no'defoiise, is not an executory aceor'& (Personal ' Property Law, § 33-a, ! subd. '3) ''and' claimant is entitled to !!asserther, •eldiiih foi!the;appropriation. of!her, land. 2..:Claimar}t's father:as a..'life ;tenant Js..an:,owner,,of:;the. property,; (Real 1,Property Law,;§.33,),,entitled.to.:be,a party, to, any.agreement,of adjustment (Conservation Law, .§ 59, subd. 6), * and entitled to 'present to the Court of Claims his claim ,for the value of the land and legal damages (Conservation "Law,'§ 59, subd: �) Claimant's father is.a necessary party to: the proceedings ,:aiid,'should•: be- ,interpleaded , in accordance with the Court .of Claims Act 1!;(§ 9,:rubd.l6li§rrl`I)• , , ; .i .; . r : • , Since, •tt�e?ro ;has been , no adjudication that claimant's. -father is mentally mcpinpetent:-to care.for his' property,, the court apparently, has. authority to oiilcr 'that iro' be'iiite%plea$ed without the'appointment of u committee:.FIow- '1.i'�, since: he' is' 'ati : inmate 6f'an dIlstitution, • it ,is Advisable that • a' "coiriiriittee of his property be aplrointcd•to. afford full protection of the rights of all'partics. A-coin mittee :rnay,ibe appointed upon application of the director. of the State � hospital where claimant's ;father;is.confined. When claimant's. father -bas been •iterpleaded after the a)ipomtnient of a committee, the court will have juris- `:ii:tion°of all'p(irtiea:and will hin a'position to mhke"an' award.' `." I [;'':4! Cfaimlintl. lies fnd, cbntrol 'ober the disposition ; lof :her 1 fathers. interest property, sail:;the;State could not in its agreement with claimant:regr ire _,hgr,to. obtain, sL,Tfjease,#om.him nor was .the State •correot,iri writing claimant I.� i fi'# she ' should brings a ,proceeding - under. article, 82-A. of., the . Civil Practice Ait,in brde= that:hs.claiin"inrght be.released. 1 Claim"ft w'as not'.qualified to J'itr>,titiite a pro eedirig un9T seetron 1409-b.'of siticle`$2-A of the 'Civil Practice Act [not being the cobimiitee-of his property].` Moreover; rio''arirount has'been fl, ftterld try. the, State,in full compensation. to claimant's father for such appro- prratrorand'for-bis,llegal damages. - CLmm for, appropriation of landsk: ,; !ro(IW.--T.r4tik$in Ndss'and' Wortley Pdicl'for'claimant.: ' 31'c'kcitfiiini,e'l dstein tlttorney-General•(PrankIM. Nolgnan of counsel) for defendant. lf:Jff'1.(}1 J. l: 'rrl,l,l!'?',:." ,,•,; c.: ; " •llif l�''+:•1 �, r. ; �!;, ty-deed dated'March;7, 1942i;John,H.':W. Staleyl 4]gd,Alice;.Staley; hist wife, .conveyed; to. Henry :Ackerman ,,and;na,.J:,; 4erman,,.his wife, real. property; :being part 1, of . 4OiJ ; the JowpI of ,Qrand! lIslandi- Brie o County, ; New rYork, and locatpa-.on.•the' West River: Road;. ';,This conveyance resexved. the a e,use, of the propertyl,1to4he grantors: i Alice ,.,. r . .. � jt�le�j diedMay.:6, 1944,.,'John, I3: W, Staley,' now,past.eighty- _ eYears: old- is; ainmate, ofi Gowanda•'State Homeopathic �h l�,ospital, having been committed to•that institution in December, .1946 Henr Ackerman,died May 13 1944. : r , iiir urpuant ,to section W. Pf -the. Conservation Law! and by notice 16F �ppropriatlon dated.April 5, 1948, the State of .Nezv York by the Niagara Frontier State Park Commission appropriated- out iof .the property. .conveyed by the Staleys to the Ackermans a 78 AbiERMAN V. STATE OF NEW " YORK. Claims, February';'`1951. [Vol. X99 parcel of land known as No. 7-B, Map 4 8.317-7B. A copy of olttm, notice of .appropriation and xnap,wap served, on, •this ;qlaimant .opriati - Lovina J. Ackermiml,personallyi i onp Aprill 1IL5;1, 1948,, , and., on ;13ervibd '6h-Erw-'IjiH. "MA"id"gel bire-cWFU"the" 60"Wdifff PiaW96mdogatmM -11150,#al l is,ou;. A xi1� 2U'' X9$j „anti `to ether w: Kopf ', o ;siieli sexAt ,qe, -80,1948'.."., d 1, 'development of the West I,viver Parkway on ian'dJ41iffid'"'On 7: 1949' �;oviliaJ: Ackerman :-C•wl- 111), W, M11"! '�Ij ...... 4 � 4. W ea61 pa 9- HOW agr t1i �6& .7 rp I , 1:9 .,.,,y-Pxk, -,a Aing �b"v""�a'n 4110INiagarao ontier:State Park q yj a., 0 -inmis4onI!,,i hiqk, -i-.b jag're'emdht i(lober.edii,MTs.,,i,AckermeA "as ; �ridi6if by I LJ3 is 6 IM.", Abb, g.�f c*lai m'• �iif,hdo. 16t,* x 'th' t -a 6�.ii�ieclitalid(L-for;,.,'all) g 't k' al Lqq�74.up)fi!D p!ar,yj,qo,j,. ppi. tectl f diffi4d"• �G(Wa"fUlttil Us' I %,,'Ld S. ',11 VAR;,� $910,6 juski�b r io -approval ' by the :Comptroller of the Mate f:*e1w rk as i by.......... .... L ..Or S1. 3 'The'afqfg6i i A ti� Q? b'. -Puia�:,Offly.'Nupon pI '14r, Oenq t e -S pprTIA Lttto pue �at York YA Val of Vf aiM .1 Qwily%aaf, 0"o he b' o *11113ce'dhle or cans ie execution a f tmal.1. W-1;43!-Whor- t6.sbeure to d'0'ii;rni!ssi -fifil"i'6169se VI j izelhe'paymeff'aild on. a kofiall ibldims-m-hi0hclaimants; tenants �IJJ�'& gja ees".i Nen g d 'W616r�'' e` �-, e 11 pagb ,,rappi.-opriation "bf,',0rqp rty and.!t-lkdiffit bill dell er 1,611 -`such -PA p !17. IRAMI rdan't*;.Ib* al the' -jN-i'k'SiiP6rintende .6f t ixjmifbiY by.-18ttb� diif6d--'TAaYdh, 7, '.4949; We-, are %iold i Uiat,� ithis `doeUili -m- e'& i lf§�' 7t*rItte*h -agiebnriehti0e` i�hi6jhd sti�'dldted-comp6ii as -,all "of w L se she executed 6 64'IMv 14, i$3'200. The :fist � of the e exedu e - n. o �b b AckwtMAN V. STATE of NEw YoltK. 79 Mise. 761 Court of Claims, February, 1951. 1947, and the second on or about June 14, 1948. Neither of these agreements was'offered in evidence but certain letters relating to them were offered in evidence but excluded. Whatever nego- tiations there were, were resolved by Exhibit A and it appears that Mrs. Ackerman had the benefit of counsel before site signed that document. Mr. Ness conducted the correspondence and in his capacity as notary public witnessed the acknowledgment by claimant of her signature to the instrument. By letter dated April 13, 1949, the Attorney -General by Warren H. Gilman of the Title Bureau forwarded to Mr. Ness certain proposed releases, affidavits and vouchers to be executed by Mrs. Ackerman. Mr. (lillnall's letter contained the following paragraph: If Mr. John H. W. Staley is living, proceeding will have to be brought, under Article 82-A of the Civil Practice Act, in order that his claim may be released. Should Mr. Staley be deceased, such fact. should be added to the Affidavit of 'Title." As hereinabove recited, John tI. *W. Salley is still living. No committee of his person or property has been appointed by a court of competent jurisdiction. He has filed no claim in this court for the appropriation of the land in which he has a life tenancy. No proceeding under article 82-A of the Civil Practice Act has been taken. Mrs. Ackerman has not received f roln the State of New York the sum of $3,200 nor any other sum in adjustment of her claim for the appropriation of the real property of which she is the owner in fee subject to the life use of her father. On March 25, 1950, she filed with the Clerk of the Court of Claims and with the Attorney -General her claim for the lands appropriated and for the damages consequent thereto. The claim came on for trial before this court at a reaula.r term thereof. Three expert, witnesses called by the claimant, and one called by the defendant testified as to the value of the whole property before appropria- tion by the State and the value of the remainder thereafter. According to the ol)i11i011s given 1),y these witnesses the minimum damages sustained as the result of the State's appropriation is the sum of $4,307.78 which is deduced from the values opined by the defendant's sole witness. The amounts of damages arrived at by the other three witnesses were in their opinion, respec- tively, $8,440, $8,330 tinct $8,490. In the words of the trial deputy attorney -general Exhibit A was offered " primarily and almost solely for the purpose of showing what the agreed price was and what value she (Mrs. 80 AcHru TAN V. STATE OF NEW YORg. Court of Claims, February, 1051. [Vol. loo Ackerman) placed upon that property," and " for some evi- dence of the value of the property and for further proof that this claimant had agreed to accept this sum of money in full." Now, however, upon briefing and Su1)1n15510i1 of the case it is the Attorney -General's arZ:) nenL that the agreement was an executory accord and is effective to completely bar the claim and require its dismissal. (Personal Property Law, § 33-a, Real Property Law, § 280.) The Attorney -General now further argues that we are without jurisdiction because the claim has been adjusted by agreement. however, the terms of the agree- ment have not been fulfilled by either party and as we pointed out at the trial this court: is without jllrisdict.ion 1.0 enforce them. But the Attorney-(,encr:,I dso 11rt;es that Mrs. Ackerman is not entitled to any award, first because the life estate is outstanding and is unrepresented, citing Moroney v. State of New York (67 Misc. 58) ; Taylor v. State of New York (1.24 N. Y. S. 818) ; Sinith v. State of New York (118 Misc. 610) and Parkval Realty Corp. v. State of New York (158 Misc. 574) ; and, secondly, because the value of the life estate cannot be commuted, citing Matter of Cainp (126 N. Y. 377). It strikes us that these several positions are somewhat inconsistent. We have come to the following conclusions: (1) As possessor of the life estate John H. N. Staley is an owner of the property. (Heal Property Law, § 33; Watson v. New York Central R. R. Co., 47 N. Y. 157, 161.-162.) As such lie was recognized by the condemnor when it served on him notice of appropriation and man. As such he is entitled to the full possession, use and enjoyment of the real property for the duration of his natural life. As such he is entitled to be a party to any offer or agree- ment of adjustment. (Conservation Law, § 59, subd. 6; People V. Thornton, 122 App. Div. 287.) As such lie is entitled to present to the Court of Claims his claim for the value of the land and legal damages. (Conservation Law, § 59, subd. 7.) He is not a mere incumbrancer such as a mortgagor, lienor or judgment creditor. (Forster v. Scott, 136 N. Y. 577, 582.) Whatever his age or condition, his daughter has no control over the disposition of his interest iii the property. It cannot be said with reason that it was within I,he contemplation of the parties to Exhibit A that Mr. Staley was one of those " other persons " the release of whose claims ATIrs. Ackerman undertook to " execute or cause to be executed " and to deliver to the Attorney -General. She was not and is not qualified to insti- tute a proceeding under section 1409-b of article 82-A of the AORPRMAN V. STAT1✓ op N>Vw Yon -K. 81 Vol. 199 Mise. 761 Court of Claims, February, 1951. ie evi- Civil Practice Act. Moreover, no amount has been offered by if that the State in full compensation to Mr. Staley because of such full." appropriation and of legal damages caused thereby. A state - ;e it is ment of an' amount so offered is a requisite of the petition. vas an (Civ. Prac. Act, § 1409-c, subd. [5].) The exaction that Mrs. claim Ackerman proceed under article 82-A to release Air. Staley's § 33-a, claim before the State of New York would pay her the amount further agreed upon for her interest was not justified by the terms of im has the contract and amounted to nonperformance on the part of agree- the State. Consequently,, the instrument is not available as a pointed defense and Mrs. Ackerman is entitled to assert her rights under e them. the claim for the appropriation of her lands. (Personal Prop - '. 1 is not erty Law, § 33-a, subd. 3.) sanding (2) Whatever his age or condition John H. W. Staley is not 9rlc (67 only a proper but a, necessary party to this proceeding. (29 .. 818) ; C. J. S., Eminent Domain, § 236, p. 1207; Matter of Metropoli- Realty taxa El. Ry. Co., 12 N. Y. S. 506, 514-515.) As such he should be -condly, interpleaded -in accordance with the provisions of subdivision 6 ., citing of section 9 and section 14 of the Court of Claims Act. (Smith t these v. State of New York, 118 Misc. 610, supra; Raquette Palls Land Co. v. State of New York, 156 Misc. 227, affd. 247 App. Div. 837.) ssessor (3) Since there has been no adjudication that Mr. Staley is -operty. mentally incompetent to care for his property (Civ. Prac. Act, it R. R. art. 81) apparently we have authority to order that lie be inter - by the pleaded without the appointment of a committee. ( Court of .on and Claims Act, § 9, subd. 6; Civ. Prac. Act, §•236; Sporza v. . Ise and German Say. Bank, 192 N. Y. 8, 33.) However, it appearing natural that he is an inmate of an institution administered by the State agree- . Department of Mental Hygiene, we deem it advisable that a ' People committee of his property be appointed to afford full protection itled to _ of the rights of all parties concerned. This may be done upon : of the application of the director of the State hospital where Mr. Staley ■ ibd. 7.) is confined and who has already been served with a copy of the enor or T, 582.) notice of appropriation. ( Civ. Prac. Act, § 1374; Matter of Bergmann, 110 App. Div. 588, 590.) The Attorney -General -01 over representing the State and its institutions and their directors nnot be of the can proceed now with an application to the Supreme Court, We suggest that this course be followed. " other When a committee has been duly appointed, an order of interpleader may be entered. dertook This court will then have jurisdiction of all parties and will be to the o insti- in a position to proceed to make an award. We withhold decision on the amount, and refrain from of the marking the requests to find which have been submitted, until the proceedings which have suggested themselves have been effected. 3/1-3 j! 7 • ca- / �— �a�,�� ESTATES, POWERS AND TRUSTS Art. 6 Easements, creation by necessity, see Real Property Law § 335—a. Escheat of abandoned real property, sec Abandoned Property I -1w § 2010. n Partilioof c l:ucs in pruper(, :,cc RPAI'L § 901. Law Review Commentaries 1960 laws affecting real estate. 32 N.Y.S.B.Bull. 252 (1960). Property: 1960 survey of New York law. 35 N.Y.U.L.Rev. 1495 (1960). Real and personal property: 1960 annual survey of American law. 36 N.Y.U.L.Rev. 357 (1961). Recent reforms in the law of estates, wills and trusts. 40 St. John's L. cv. 230 (1966). Symposium on Article 6 of the EPTL. 33 Brooklyn L.Rev. 468 (1967). WESTLAW Computer Assisted Legal Research WESTLAW supplements your legal research in many ways. WES LAW allows you to • update your research with the most current information • expand your library with additional resources • retrieve direct history, precedential history and parallel citations with the Insta-Cite service For more information on using WESTLAW to supplement your research, see the WESTLAW Electronic Research Guide, which follows the Explana- tion. § 6-1.1 • Estates classified (a) Estates in property as to duration are classified as fo (1) Fee simple absolute. (2) Fee on condition. (3) Fee on limitation. (4) Estates for life. (5) Estates for years. (6) Estates from period to period. (7) Estates at will. (8) Estates by sufferance. (L.1966, c. 952.) Historical and Statutory Notes Derivation. Section derived from from R.S., pt. 2, c. 1, tit. 2, § 1; L. RPL § 30. Said § 30 was derived from c. 17. L.1896, c. 547, § 20; originally revised 4 1855, § 2. Rights and Liability ,of Life Tenant. § 2.01. In general. Generally, a life tenant may utilize and enjoy real property in the same manner as any other owner, subject to his liability for the commission of waste. RPAPL, Section 801 (former Heal Prop Ijaw 520), specifically authorizes an action for waste against a tenant for life. Waste may be defined as "spoil or destruction, done or per- mitted, to lands, houses or other corporeal hereditaments, bj- 32 RviiI Tipp Law d 245. 331;1'APT, 1101, 1102. (Rel. 15-1974) (ww) G,o " LUE ESTATES § 2,01 terest which such tenant can lawfully convey. Furthermore, a grant or devise of real property passes all the estate or interest of the grantor or testator unless the in- tent to pass a lesser estate or interest appears by the express . terms of such !;raid. or devise or by necessary implication therefrom. A greater estate or interest does not pass by any grant or conveyance than the grantor possessed or could law- fully convey, at the time of the delivery or the deed; except that every grant is conclusive against the grantor and his heirs claiming from him by descent, and as against a subse- quent purchaser or incumbrancer from such grantor, or from such heirs claiming as such, other than a subsequent purchaser or incumbrancer in good faith and for a valuable considera- tion, who acquires a superior title by a conveyance that has been duly recorded.32 Since the estate of the life tenant terminates upon his death, whether or not -the life tenant is alive frequently becomes an issue. Under Article 11 of the Real Property Actions and Proceedings Lav, however, a person entitled to claim real property upon the death of another who has a life estate in that property may, not more than once a year petition the court that the life tenant be produced.33 See § 3, infra. § 2. Rights and Liability ,of Life Tenant. § 2.01. In general. Generally, a life tenant may utilize and enjoy real property in the same manner as any other owner, subject to his liability for the commission of waste. RPAPL, Section 801 (former Heal Prop Ijaw 520), specifically authorizes an action for waste against a tenant for life. Waste may be defined as "spoil or destruction, done or per- mitted, to lands, houses or other corporeal hereditaments, bj- 32 RviiI Tipp Law d 245. 331;1'APT, 1101, 1102. (Rel. 15-1974) (ww) LIFE ESTATES § 7.01 IIowever, where a life tenant gave a mortgage in considera- tion of a usurious loan, the transaction was not made in good faith and was an attempt to deprive the remainderman of his interest. Although the mortgage could not be set aside since such affirmative relief, without tender of the money owed, was strictly limited to the borrower under General Obliga- tions Law, Section 5-515, the remainderman nevertheless, could have brougllt an action of waste against the life tenant and the mortgagee.20 See "Waste," infra. It should be noted that under RPAPL, Article 16, the court has the power to direct a mortgage of the entire property. For a discussion of this subject, see "Life Tenancy Proceed- ing," infra. § 7. Leases by Life Tenant. § 7.01. Right of life tenant to lease property. Although a life tenant has the right to lease the property, lie can not give a lease for a longer period than the termina- tion of his own estate.21 EPTL provides that power may be conferred upon a life tenant to make leases of real property for a term of not more than 21 years to commence in,possession during his lifetime. If the power authorizes, or the life tenant makes a lease for a term in excess of 21 years, such power or lease is valid for 21 years, but void as to the excess.22 The power of a tenant for life to make leases is not assignable as a separate interest, but is ' annexed to the estate and passes by a disposition of such estate, unless expressly excepted. If so excepted, it is extinguished. Such a power may be released by the tenant to 20 VanSkiver v. I{uline, 39 AD2d 811, 332 NYS2d 525 (1972) . 21 Levy v. Amelias, 207 Mise 880, 141 NYS2d 101; Mulligan v. Cox, 26 Mise 709, 56 NYS 797; Real Prop Law 4 247 (life tenant's conveyance of a greater estate than he possesses passes only that interest lie can lawfully convey without forfeiture of his estate). 22 EPTL 10-10.2. (Rel. No. 15-1974) (WW) LIFE EST — 29 § 6.01 WARREN'S WEED NEW YORK REAL PROPERTY that the so-called waste added many thousands of dollars to the value of the property. I£ the act of turning a farm into a railroad yard was waste at all, it was, at the most, ameliora- ting waste, improving instead of injuring the remainderman's inheritance.' 6 See § 2.01, supra. A purchaser from a life tenant acquired an equitable title and the contract was enforceable, however,- where a fife estate was coupled with a power of sale, and the life tenant. exer- cised this power by executing a contract of sale of the prop- erty. one month prior to her death.' 6 For a discussion of the life tenant's power of disposition pursuant to EPTL, Article 10, see "Powers of Appointment," infra. § 6.. Mortgage by Life Tenant.• § 6.01. In general.' Generally, a person may mortgage._any property or inter- est therein that he has the power to convey. A life tenant, therefore; -can.. mortgage -property or, otherwise use -it as -he . pleases where his.estate is. coupled withfia-ipoweriof: disposi- tion, as long as he acts, in good faith and does not purposely commit waste ., impairing. the.. remainderma{i's.; interest.17 Furthermore, a martgage given by a life tenant. who :lied .the power to consume the.principal covered the;fee. title, since .tlie mortgage was an exercise of the life tenant's power to use the principal. 18 Another case held that remaindermen 'of full age were estopped, from. denying that a mo gage'.b .y ,the life ten-Tj . ant covered their inwrest where ;they represen .µd; to:the . • ;.. ; . , .,Mor - that the l£gxhrietenat:owtlleprope . . J a New York do 0. W. R.R, v. Livingston, 238 NY 300, 144 NE 589, 34 ALR 1078. 16 Matter of Coffrini, 45 Mise 2d 205, 256 NYS2d 524 (1964). 17 Matter of Britt's Will, 272 AD 426, 71 NYS2d 405; Vincent v. Putnam, 127 Miso 647, 217 NYS 381, affd 221 AD 211, 233 NYS 301, affd 248 NY 76, 161 NE 425. 18 Blauvelt v. Gallagher, 22 Mise 564, 49 NYS 608'' 19 Dickenson v. Blake, 116 AD 545, 101 NYS 709. 28 — LIFE EST § 5.01 WARREN'S WEED NEW YORK REAL. PROPERTY title so received inured to the common benefit of the several parties in interest.6 Similarly, a remainderman had the right to redeem property purchased by the life tenant at a mortgage foreclosure sale after the life tenant had foreclosed the mort- gage by advertisement. Upon purchase, the life tenant con- veyed the land to a grantee who had knowledge of all the facts. The court declared that: the life tenant breached his duty to protect the interests of the remainderman, and the latter could redeem the property from the mortgage.' It has also been held that the spirit of the rule which forbad the life tenant from obtaining a tax deed to the premises for his own exclusive benefit after he had breached his obligation to pay the taxes, embraced his wife and stopped her from doing what the life tenant could not lawfull,y.d0.7 .Also, where a stepson of the life tenant obtained a tax deed and then con- veyed it without consideration to his mother, who was the sec- ond wife of the life tenant, the court set the deed aside.$ § 5. Conveyances by Life Tenant. § 5.01. Right to convey. The holder of a life estate has the right to convey his inter- est in the property., Such a conveyance, if in fee, will convey a valid estate fol• the life of the life tenant but is void for any excess right or interest attempted to be conveyed.10 A conveyance by the life tenant of a greater estate than lie pos- sesses passes to the grantee all that lie can lawfully convey, and does not work a forfeiture of the estate." Under certain conditions prescribed in RPAPL, Article : 6 Ibid. o Jefferson v. Bangs, 197 NY 35, 90 NE log, 134 Am St Rep 856. 7 Seymour v. Seymour, 120 Misc 525, 199 NYS 23; Taylor v. Klein, 47 AD 343, 62 NYS 4, affd 170 NY 571, 62 NE 1101'; Westervelt v. Hausner, 153 Misc 795, 275 NYS 102. 8 Westervel v. Hausner, N 7 supra. 9 Matter of Chapman, 94 NYS2d 325; 134 Ain St Rep 856; Matter of Fitz- patrick, 252 NY 121, 169 NE 110. 10 Sinclair v. Jackson ex dein Field, 8 Cowan 543. 1 1 Real Prop Law 4 247. 26 — LINE EST LIFE ESTATES § 2.05 applied to the sale of timber cut from the land. 53 The above rules, however, do not mean that in no case can a life tenant use wood on the property. He is entitled to take what have been characterized as "estovers" or "botes." This is the right to use wood for fuel, fences and other agricultural purposes and erections, provided it does not go to the extent of constituting waste.64 The extent to which wood and timber on wild and uncultivated land may be cut by a lessee for life is often a question of fact for the jury.66 § 2.05. Carrying. charges. Generally, in the absence of something in the will to the contrary, the life tenant is required to pay all ordinary carry- ing charges such as normal repairs, interest on mortgages, and insurance. This rule applies whether the estate created is a life estate or held in trust with the income only payable to the beneficiary. In this latter event, however, carrying charges are payable out of income.60 Ordinarily, the life tenant must pay all taxes on the prop- erty and make necessary and reasonable repairs in preserva- tion of the estate, unless the instrument creating his tenancy expressly provides otherwise. 67 ' If the life tenant breaches his obligation to pay taxes or make repairs, however, his pos- sessory interest is not subject to a condition subsequent re- sulting in a defeasance of his estate by a sale of the property by court authority. The court, rather, would construe such a 53 McCartney v. Titsworth, 142 AD 292,'126 NYS 905. 64 Rutherford v. Aiken, 2 Thomp. & C. 281. 65 Jackson ex dem Church v. Brownson, 7 Johns 227. 66 Spencer v. Spencer, 219 NY 459, 114 NE 849, remittitur amended 220 NY 654, 115 NE 1051; Matter of Tracy, 179 NY 501, 72 NE 519; Clarke v. Clarke, 145 NY 476, 40 NE 220; Matter of Albertson, 113 NY 434, 21 NE 117; Commercial Nat'l Bank & Trust Co. v. Erwin, 227 AD 378, 100 NYS2d 200. 67 Commercial Nat'l. Bank & Trust Co. of New York v. Erwin, 277 AD 378, 100 NYS2d 200; Matter of Gaffers, 254 AD 448, 6 NYS2d 671; Matter of Albertson, 113 NY 434, 21 NE 117; Welsh v. Taylor, 134 NY 450, 31 NE 806, 18 LRA 535; Stevens v. Melcher, 152 NY 551, 40 NE 905; Jacobs v. Steinbrink, 164 AD 715, 149 NYS 337; Spencer v. Spencer, 169 AD 54, 154 NYS 527. ( Rel. No. 15-1974) (Ww ) LIFE EST — 13 LIFE ESTATES § 1.02 A life estate is an interest in real property held by a party during his lifetime with the exclusive right of possession, con- trol and enjoyment.' The estate may be limited to the life of the life tenant, or it may be measured by the life of a third person. Such an estate, moreover, does not lose its character as a life estate though terminated by a condition other than. the death of the life tenant or the =measuring life of a third party, such as the remarriage of a widow.2 An estate for the life of the life tenant is not an estate of inheritance. It ends with the death of the life tenant. However, if A conveys to B an estate in land for the life of C, B's inter- est in the realty is designated an estate pur autre vie, i.e., all estate for the life of another. In this instance, the measuring life is the life of C and upon his death, the estate of B termi- nates. The disposition of real property for the life of a third person is construed as realty only during the life of�the gran- tee or devisee, and after his death, it is personalty passing to the personal representative of such grantee or devisee.3 See § 10, infra. A bequest or devise of the use of real property during the natural life of a person gives to that individual a possessory life -estate in the property and not merely the right of occu- pancy. He is the exclusive owner of the land with the sole right to its use, control and enjoyment 4 The owner of the 1 Matter of McCarty's Estate, 158 Misc 287, 285 NYS 641; McFarland v. State, 5 Misc 2d 884, 160 NYS2d 247. 2 Roseboom Y. Van Vechten, 5 Denio 414; Matter of Ball, 172 Misc 181, 14 NYS2d 889. 3 EPTL 6-1.3. 4 Matter of Gaffers, 254 AD 448, 5 NYS2d 671. 2 — LIFE EST g o c p 3. ancy is intended, the agreement of the parties must be ex- amined. The usual descriptive words denoting a life tenancy are "use and occupation." Thus, where these words were omitted from a deed and the language stated that the.grantors "may make their home in said premises as long as they live," the court decided that a mere occupancy was intended, termin- able at will, with no right to income .7 However, where prop- erty was devised to trustees "to permit my sons to reside, therein and use the same during the life of both, provided they bear and pay all charges, taxes and interest," with a provision that, upon the death of either of the soles, the trust should terminate and the property go to the survivor with power of sale to the trustees, the court concluded that the will gave the sons the right and use of the premises as dis- tinguished from a mere right of occupancy. The trust was valid as a special power in trust, and although the legal title vested in the sons, the power of sale was sustained. Further- more, the sons were entitled to the possession of the property and the rents and profits therefrom as long as they both lived unless the premises were sooner sold, and upon the death of either prior to the sale, the proceeds would vest absolutely in . the survivor." § 1.02. Creation of life estate. A life estate may be created by devise or by conveyance, in 6 Matter of McCarty, 158 Mis 287, 285.NYS 641. 6 Matter of Cochrane, 117 Misc 18, 190 NYS 895, affd 202 AD 807, 194 NYS 924. 7 Rizzo v. Mastaranglo, 16 Misc 2d 20. (Rel. No. 15-1974) (WW) LIFE EST — 3 \ J� § Im WARREN'S WEED NEW YORK REAL PROPERTY 1 L 7p�prainn n.• remairran,. ��fe� bac nn rTP�P11L—%1g'l�t-0�e C� V ;I ¢ 11.05. Evidence as to ancestry, health and babits of individual ¢ 11.06. Life estate defeasible upon remarriage ¢ 11.07. Computation by superintendent of insurance § 1. In General. ment and no tangible and physical ownership of the land. However, he has a future incorporeal interest or estate in the land which will ripen into ownership of the land itself on the death of the life tenant.6 The life tenant has the right to enjoy the property during the period of his life." § 1.01. Character and nature. A distinction must be made between a. life estate and a mere . ri htf o cu anc In order to determine whether a life ten - A life estate is an interest in real property held by a party during his lifetime with the exclusive right of possession, con- trol and enjoyment.' The estate may be limited to the life of the life tenant, or it may be measured by the life of a third person. Such an estate, moreover, does not lose its character as a life estate though terminated by a condition other than. the death of the life tenant or the =measuring life of a third party, such as the remarriage of a widow.2 An estate for the life of the life tenant is not an estate of inheritance. It ends with the death of the life tenant. However, if A conveys to B an estate in land for the life of C, B's inter- est in the realty is designated an estate pur autre vie, i.e., all estate for the life of another. In this instance, the measuring life is the life of C and upon his death, the estate of B termi- nates. The disposition of real property for the life of a third person is construed as realty only during the life of�the gran- tee or devisee, and after his death, it is personalty passing to the personal representative of such grantee or devisee.3 See § 10, infra. A bequest or devise of the use of real property during the natural life of a person gives to that individual a possessory life -estate in the property and not merely the right of occu- pancy. He is the exclusive owner of the land with the sole right to its use, control and enjoyment 4 The owner of the 1 Matter of McCarty's Estate, 158 Misc 287, 285 NYS 641; McFarland v. State, 5 Misc 2d 884, 160 NYS2d 247. 2 Roseboom Y. Van Vechten, 5 Denio 414; Matter of Ball, 172 Misc 181, 14 NYS2d 889. 3 EPTL 6-1.3. 4 Matter of Gaffers, 254 AD 448, 5 NYS2d 671. 2 — LIFE EST g o c p 3. ancy is intended, the agreement of the parties must be ex- amined. The usual descriptive words denoting a life tenancy are "use and occupation." Thus, where these words were omitted from a deed and the language stated that the.grantors "may make their home in said premises as long as they live," the court decided that a mere occupancy was intended, termin- able at will, with no right to income .7 However, where prop- erty was devised to trustees "to permit my sons to reside, therein and use the same during the life of both, provided they bear and pay all charges, taxes and interest," with a provision that, upon the death of either of the soles, the trust should terminate and the property go to the survivor with power of sale to the trustees, the court concluded that the will gave the sons the right and use of the premises as dis- tinguished from a mere right of occupancy. The trust was valid as a special power in trust, and although the legal title vested in the sons, the power of sale was sustained. Further- more, the sons were entitled to the possession of the property and the rents and profits therefrom as long as they both lived unless the premises were sooner sold, and upon the death of either prior to the sale, the proceeds would vest absolutely in . the survivor." § 1.02. Creation of life estate. A life estate may be created by devise or by conveyance, in 6 Matter of McCarty, 158 Mis 287, 285.NYS 641. 6 Matter of Cochrane, 117 Misc 18, 190 NYS 895, affd 202 AD 807, 194 NYS 924. 7 Rizzo v. Mastaranglo, 16 Misc 2d 20. (Rel. No. 15-1974) (WW) LIFE EST — 3 FOLLOW-UP and UPDATE FOR YOUR RECORD: TO: All ZBA Members FROM: ZBA Chairman via ZBA Office DATE: / 3 , 1997 -C�o� %� $ %" t- - �ed—is ail 'oPS-1�f (new Toy, �b 441 - information added to the original Town ZBA file) re: Pending Application of d(A _„ Other Comments: # of Pages Attached: d ) Placed in Members' office mail boxes for update on 3 /)3/97 by&-. �"' /0'30 , -------------------- Board.Trans Town of Southold Board of Appeals Town Hall Main Road Southold, New York 11971 Attn: Linda FEB 2 11997 l Re: Antone A. Straussner, Jr. Northwest corner of Main Street and Wilmarth Avenue, Greenport, NY (1000-41-1-10 & 11) Lucy Straussner, as Life Tenant and Antone A. Straussner, Jr., as Remainderman (1000-34-1-16 Dear Linda: Enclosed are the following in the above referenced matter: 1. Six (6) additional surveys 2. Original and six (6) copies of Single and Separate search. Very uly�y urs, igail A. Wickham AAW:mh encl. 30-shdtnboa 31 LAW OFFICES WICKHAM, WICKHAM & BRESSLER, P.c. 1�( MAIN ROAD, P.O. BOX 1424 111111 MATTITUCK, LONG ISLAND WILLIAM WICKHAM NEW YORK 11952 MELVILLE OFFICE ERIC J. BRESSLER 516-844-1208 ABIGAIL A. WICKHAM 516-298-8353 TELEFAX NO. 516-694-0 LYNNE M. GORDON TELEFAX NO. 516-298-8565 HUBERT F. SULLIVAN JANET GEASA JEFFREY STARR February 20, 1997 Town of Southold Board of Appeals Town Hall Main Road Southold, New York 11971 Attn: Linda FEB 2 11997 l Re: Antone A. Straussner, Jr. Northwest corner of Main Street and Wilmarth Avenue, Greenport, NY (1000-41-1-10 & 11) Lucy Straussner, as Life Tenant and Antone A. Straussner, Jr., as Remainderman (1000-34-1-16 Dear Linda: Enclosed are the following in the above referenced matter: 1. Six (6) additional surveys 2. Original and six (6) copies of Single and Separate search. Very uly�y urs, igail A. Wickham AAW:mh encl. 30-shdtnboa 31 LAW OFFICES WICKHAM, WICKHAM & BRESSLER, P.C. MAIN ROAD, P.O. BOX 1424 MATTITUCK, LONG ISLAND WILLIAM WICKHAM NEW YORK 11952 MELVILLE OFFICE ERIC J. BRESSLER 51 ABIGAIL A. WICKHAM NO. 51 516-298-8353 TELEFAX NO. 516-69-69 4- LYNNE M. GORDON TELEFAX NO. 516-298-8565 HUBERT F. SULLIVAN JANET GEASA JEFFREY STARR March 24, 1997 Town of Southold Board of Appeals Town Hall Main Road Southold; New York 11971 Attn: Linda Kowalski Re: Waiver under Merger Law (Straussner) Dear Linda: Enclosed is the Notice of the Public Hearing sent to Arthur M. Pollok by certified mail return receipt requested which was returned this date showing "Unclaimed". This is forwarded to you to.complete the above referenced file. Ve truly yours, Madeline S. Haas Legal Secretary msh encl. Eq CC7 FEB 2 11997 1 COUNTY OF SUFFOLK) )SS: STATE OF NEW YORK) THOMAS B. CAULFIELD, PRESIDENT OF SCTIC, INCORPORATED, being duly sworn deposes and says: THAT he has had a search made of the records of the County Clerk's Office of Suffolk County fbr-the following described property: ALL those certain plots, pieces; or parcels of land, with the buildings and improve- ments thereon erected, situate, lying and being near the,. -Village of Greenport, Town of Southold, County of Suffolk and State of New York, bounded and described as follows: PARCEL ONE: northerly by land of Pollack,easterly by Main Street, and southerly and westerly by land now or formerly of McCreery. PARCEL TWO: Lots 25 and 26 as shown on a certain map entitled, "Map of Washington Heights, Greenport, Suffolk County, New York." PARCEL THREE: Lots 27 and 28 as shown on a certain map entitled, "Map of Washington Heights, Greenport, Suffolk County, N.Y.," which map was made by Otto W. Van Tuyl, dated December 8, 1927, on file in said County Clerk's Office. Said Lot 27 is 50 feet wide in front, 52.19 feet wide in the rear, and the easterly and westerly boundary lines thereof are 123.07 feet and 137.36 feet, respectively, in length. Said Lot 28 is 62.12 feet wide in front, 39.10 feet wide in rear, and the easterly and westerly boundary lines thereof are 137.36 and 153.10 feet, respectively, in length. ALSO being known and designated on the Suffolk County Real Property Tax Agency Map as: DISTRICT: 1000 SECTION: 034.00 BLOCK: 01.00 LOT: 016.000 041.00 01.00 010.000 011.000 SAID Search completed on the 5th day of February, 1997, shows the following chains of title since 7/1/83. J LIABILITY IS LIMITED TO THE AMOUNT OF FEES PAID. BY: C=�' Sworn to -Apefore me this day of , 1997. lee - BY: gds/ KATNERMFOOMN NOwYak Y Cpm Evkn 1-�_ /q 9 SUBJECT PREMISES: SCI'M: 1000-034.00-01.00-016.000 1000-041.00-01.00-010.000 1000-041.00-01.00-011.000 CHAIN OF TITLE Antone A. Straussner, devisee under the Last will and Testament of Lillian S. Vojik to Antone A. Straussner, Sr. Lucy Straussner, his wife Antone A. Straussner, Sr. and Lucy Straussner, his wife to Antone A. Straussner, Jr. NOTE: Life estate as to Parcel I LAST OWNER OF RECORD. Dated: 3/7/70 Rec'd: 4/3/70 Liber 6724 cp 491 Dated: 3/14/70 Rec'd: 4/3/70 Liber 6724 CP M 493 (SCTM# 1000-034-01-016). See explanation below. PREMSIES ADJOINING EASTERLY: MAIN STREET PREMISES ADJOINING SOUTHERLY: WILMARTH AVENUE NOTE: As to Parcel`. 1, also identified as Suffolk County Tax Map #1000-034-01-016, said deed contains the following recital: "RESERVING, however, to the party of the first part, Antone A. Straussner, Sr. and Lucy Straussner, ux, or the survivor of them, a life estate in the premises described as PARCEL ONE, which said parcel is commonly referred to as premises numbered 111 Main Street, Greenport, New York." Antone A Straussner, Sr. died a resident of Suffolk County on 11/29/95, Suffolk County Surrogate's Court file #2442 P. 1995 PREMISES ADJOINING WESTERLY AND SOUTHERLY: SCTM: 1000-041.00-01.00-008.000 and 009.000 .�*i4`I�a�I1NwYMl� William Macomber Dated: 6/3/49 to Rec'd: 6/18/49 William Macomber and Liber 2961 cp 142 Hazel E. Macomber, his wife Hazel E. Macomber died.a resident of Suffolk County on 6/17/63, Suffolk County Surrogate Court File No. 311A1963. William Macomber Dated: 11/1/94 Thelma Macomber Rec'd: 11/25/94 to Liber 11703 cp 901 Stephen O'Kula LAST OWNER OF RECORD. IM a. PREMISES"ADJOINING WESTERLY: SCTM: 1000-034.00-01.00-007.000 CHAIN OF TITLE Oscar Goldin Dated: 10/23/63 to Rec'd: 10/24/63 Eugene N. Mazzaferro Liber 5439 cp 107 William F. Heaney Eugene N. Mazzaferro Dated: 12/20/93 to Rec'd: 2/1/94 William F. Heaney Liber 11662 cp 783 Eugene N. Mazzaferro Dated: 12/20/93 to Rec'd: 12/26/95 William F. Heaney Liber 11755 cp 368 Correction Deed LAST OWNER OF RECORD. PREMISES. ADJOINING NORTHERLY: SCTM: 1000=034.00-01.00-014.000 CHAIN OF TITLE Nellie Oliver (formerly Nellie Jetter) Dated: 11/26/26 to Rec'd: 8/4/27 Ned B. Harroun Liber 1287 cp 93 Jessie Harroun No proof of death found on Ned B. Harroun in Suffolk County Surrogate Court. Jessie Harroun died a resident of Suffolk County on 5/13/80, Suffolk County Surrogate Court File No. 1552-P-1981. Archie Harroun, Executor Dated: 11/21/80 of the Will of Jessie Harroun Rec'd: 2/6/81 to Liber 8957 cp 322 James E. Kirby, Commissioner of Social Services Archie Harroun, Executor Dated: 12/26/81 of the Willl.of Jessie Harroun Recd: 1/26/82 to Liber 9134 cp 153 James E. Kirby, Commissioner Correction Deed of Social Services James E. Kirby, Commissioner Dated: 1/21/82 of Social Services Rec'd: 2/18/82 to Liber 9143 cp 592 Esther Sperling LAST OWNER OF RECORD. PREMISES ADJOINING NORTHERLY: Frank J. McMann to Arthur M. Pollock Ethel L. Pollock, his wife SCI'M: 1000-034.00-01.00-015.000 CHAIN OF TITLE Dated: 7/1/44 Rec'd: 9/27/45 Liber 2488 cp 224 Arthur M. Pollock died a resident of Suffolk County on 6/24/83, Suffolk County Surrogate Court File No. 586A-1983 leaving Ethel L. Pollock surviving tenant by the entirety. LAST OWNER OF RECORD. BY: Sworn to be ore me this day of , 1997. BY: KATHERINE FERGUSON Notary Puft SftdNewYak No.01FE4878810 OUWM9d 1n Sulblsc 0m rd�► Commfssim Expires I yl vYl Fe THOMAS B. CAULFIELD LAW OFFICES WICKHAM, WICKHAM & BRESSLER, P.C. 10315 MAIN ROAD, P.O. BOX 1424 MATTITUCK, LONG ISLAND WILLIAM WICKHAM NEW YORK 11952 MELVILLE OFFICE ERIC J. BRESSLER 275 BROAD HOLLOW ROAD ABIGAIL A. WICKHAM SUITE III 516-298-8353 MELVILLE, NEW YORK 11747 LYNNE M. GORDON JANET GEASA TELEFAX NO. 516-298-8565 516-249-9480 JEFFREY STARR TELEFAX NO. 516-249-9484 HUBERT F. SULLIVAN February 18, 1997 r Town of Southold Board of Appeals �� ►!�f Town Hall FEB Z 01997 Main Road Southold, New York 11971 Attn: Linda Re: Antone A. Straussner, Jr. Northwest corner of Main Street and Wilmarth Avenue, Greenport, NY (1000-41-1-10 & 11) Lucy Straussner, as Life Tenant and Antone A. Straussner, Jr., as Remainderman (1000-34-1-16 Dear Linda: ,6i, Enclosed is a�survey in connection with the Application for Waiver submitted to your office in January in the above referenced matter. If there is anything further you need, please do not hesitate to call this office. Very// truly yours, Abigaie Wickham A-Aj T : mh encl. 30-shdtnboa I- �� Fr.4i»c�•�;y N 3 "A N N �28o3Q' ypr� ��•�r/�oy.G,��•�-�.�r. Tsr��vo,��adr��o..'✓. s! �o T N�,�.e�.��,�' To fi�•�,o o,G-1y�<r��.v�• roy y��4,�s�ry �GTCY/' it/a✓• /DSO - 3-� d /� �/4�?O ��,//-d/--/D�� N N � V N Y\ �gED LA O w. LES �G,Q4 O� yip �A � r * </ r _ F W _Y% L"JNO AD),07,wz li, /V, FEB 2 019 97 n v � /WO V,, /6-00 35- /— /� �ro,055ner 40C ck So r\j 'l-6 + W)oo I Q� 19 �o� S� e. Kra,. LEGAL NOTICE NOTICE IS HEREBY GIVEN, pur- suant to Section 267 of the Town Law , and the Code of the Town of Southold, the following applications will be held _ for public hearings by the SOUTHOLD TOWN BOARD OF APPEALS, at the Southold Town Hall, 53095 Main Road, Southold, New York 11911, . on THURSDAY, MARCH 13,1997 at the 'r times noted below (or as soon thereafter ` as possible): 6:45 p.m. Appl. #4459 — ANTONE and LUCY STRAUSSNER. A Waiver is requested for two undersized lots, which waiver is based on the Nov. 15, 1996 Action of Disapproval by Building Inspector due to lot merger after 1983. The lots show creation by deed and conformity in size when first created (ref: Building -Inspector's nota- tions). Location of Lands: 335 Main` St. and 1045 Wilmarth Avenue, Greenport. R-40 Zone. 1000-34-1-16 as one lot, and 100041=1-10 & 11 as the other lot. 6:50 p.m. Appl' #4462 — VIVIEN and PETER SOO. A variance is requested for a reduced front yard set- back for proposed new dwelling, based on • the January 15, 1997 Action of Disapproval issued by the Building Inspector. Location of Property: 265 Cedar Point Drive East, Southold. Required front yard: to be determined based on those established within 300 feet, same block, same side of street, or bulk schedule minimum of 35 -ft. front, 35 ft. rear, 10 ft. and 15 ft. sides, pertaining to this lot size of 15,576± square feet. County Parcel No. 1000- 90-3-9. (Note: Setbacks from the water are determined by Town Trustees and NYS DEC, when no bulkhead or wall i exists.) 6:53 p.m. Carryover Hearing from 2/6/97 -and -2/25/97: Appl. No. 4452 — CHRISTINA,RIV ERA'. ----_ --- 7:00. p.m. Carryover Hearing from 2/6/97: Appl. No. 4453 — EDWARD ' and EVELYN HALPERT. 7:10 p.m. Continued Hearing li (Reopened): Appl. No-4429SE and ; 4430, by LILCO, as Contract Vendee. I4' These applications apply to premises referred to as 8550 (vacant land) Main Road, Mattituck (near Laurel); identi- fied as 1000-122-7-6.6, further identi- fied as Lot #2 consisting of 35,798 sf. as shown on the Subdivision of Map of i "Frank Murphy Garden 'Center" approved by the Southold Town Planning Board 4/12/1982. Applicant, as contract vendee, is requesting: (a) Appl. No. 4429 — Special Ex ception for Use of Vacant Land as shown on plot plan for"a compressor, station building with fence enclosure in this `B" General Business District. (b) Appl. No. 4430 — Variance under Article XXIII, Section 100-231- A for permission, to construct fence enclosure, which, exceeds maximum' fence height restriction of 6 feet when' located in the front yard, and which exceeds 6-1/2 feet in or along side and rear yards. 7:30 p.m. Continued Hearing from' 2/6/97 and from 2/25/97: Matter of Appl. #4458 — North Shore Yacht, Sales'by- MICHAEL HUGHES. This is a request "for a special exception under Article X, Section 100-1OIB-12 for new and used boat sales use at 11500Main Road, Mattituck, NY; Parcel #1000-122-3-6. Zone District: B Business. (Situ Owner: Harvey i Bagshaw). The Board of Appeals will,at said time and place hear any and all persons or representatives desiring to be heard in the above applications. Written com- ments may also be submitted prior to the conclusion of the subject hearing. The above hearings will not start -before the times designated, and some may be carryover hearings. The files may be reviewed during regular business hours' for updates or new information. ''lf"you, have questions„ please do not hesitate to call 765-1809. - Dated: February 26, 1997. BY ORDER "OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER,� Chairman By Linda Kowalski. _8890-1TM6 STATE OF NES )RK) ) SS: LINTY QF SUFFOL ) of Mattituck, in said County, being duly sworn, says that he/she is Principal Clerk of THE SUFFOLK TIMES; a Weekly Newspaper, published at Mattituck, in the Town of Southold, County of Suffolk and State of New York, and that the Notice of which the annexed is a printed copy, has been regular- ly published in said Newspaper once each week for �_ weeks successively, menci on Y � the _day of 9"l s Principal Clerk SwornTqt(_4_ efore me this day of 19 g LLZ- MARY DIANA FOSTER NOTARY PUBLIC, STATE OF NEW YORK NO. 52-4655242, SUFFOLK COUNTY COMMISSION EXPIRES AUGUST 31,19 '17 LAW OFFICES WICKHAM, WICKHAM & BRESSLER, P.c. MAIN ROAD, P.O. BOX 1424 MATTITUCK, LONG ISLAND WILLIAM WICKHAM NEW YORK 11952 ERIC J. BRESSLER ABIGAIL A. WICKHAM oT..r»------ 6{�� LYNNE M. GORDON `��, S. FA'Xa 'S`I HUBERT F. SULLIVAN ( _ ryc 16-�- 5 JANET GEASA }! JEFFREY STARR 3199 -fly! 11 Town of Southold Board -`o Town Hall Main Road Southold, New York 11971 Attn: Linda Kowaleski MELVILLE OFFICE 516-844-1208 TELEFAX NO. 516-694-0931 26, 1997 Re: Antone A. Straussner, Jr. Northwest corner of Main Street and Wilmarth Avenue, Greenport, NY (1000-41-1-10 & 11) Lucy Straussner, as Life Tenant and Antone A. Straussner, Jr., as Remainderman (1000-34-1-16 Dear Linda: Enclosed is an Affidavit of Mailing of the Notice of the public hearing in the above referenced matter. Attached to the affidavit are the Notice, names and addresses to whom the Notice was sent and the postmarked receipts of Mattituck Post Office. Ve truly yo7as cam-- Made 'ne S. H Legal Secretary mh encl. 30-shdtnboa �W SOUTHOLD TOWN BOARD OF APPEALS TOWN OF SOUTHOLD : COUNTY OF SUFFOLK ---------------------------------------x In the Matter of the Application of ANTONE AND LUCY STRAUSSNER ---------------------------------------x I, MADELINE S. HAAS sworn, depose and say: AFFIDAVIT OF MAILING , being duly That I reside at 595 Brower Road, Mattituck, New York 11952 That I mailed a true copy of the Notice setting forth the date of the public hearing of the above application, by certified mail, return receipt requested, to each of the persons at the addresses set opposite their respective names (listed below or on addendum attached hereto) ; That the addresses set opposite their names are the addresses shown on the current assessment roll of the Town of Southold; That said Notices were mailed by certified mail, return receipt requested, at the United States Post Office located at Mattituck, NY; That the postmarked (dated) receipts for the above mailings are attached to this Affidavit; That upon receipt of the green signature cards, I agree to submit the same to the Office of the Board of Appeals for the permanent file. r- (Signature)—Madeli a S. Haas Sworn4o before me this day of February , 199 7 . (No y Public) DONNA M. CHITUK NOTARY PUBLIC, state of Ne%v York No. 4851459, Suffolk Coun Term Expires August 18, 19 TRANSCRIPT OF MARCII 1.3, 1997 HEARINGS SOUTIIOLD 'TOWN 'ZONING BOARD OF APPEALS 6:48 13. m . Appl . #4459- ANTONE & LUCY STRAUSSNER . A Waiver is requested for two undersized lots, which waiver is based on the Nov. 15, 1996 Action of Disapproval by Building Inspector due to lot merger after 1983. The lots show creation by deed and conformity in size when first created (reF. Bi.tilding Inspector's notations) . Location of Lands: 335 Main St. and 10,15 Wilmarth Avenue, Greenport. R-40 Zone. 1000-34-1-16 as one lot, and 1000-41-1-10 & 11 as the other lot. CHAIRMAN GOEIIRINGER: I have a copy of a survey produced by Anthony Lewandowski, dated January 27, 1997, and I have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. I believe, Ms. Wickham, you are representing these fine people? Ilow are you tonight? ABIGAIL WICKHAM, ESQ.: line, thank you. Our application tonight is basically two -fold. The first application is to vary the decision of the Building Inspector, based oii our contention that the lots very clearly have not merged - that there is a distinct legal title between the two lots. In the event that the Board sloes not accept that argument, we then ask that the Board (coughing) Waiver of Merger Statute - that a waiver is al)propriate based on the relative size of the lots. These would be the other lots in the neighborhood and other . considerations I will go into. On the first argument: I presented information to the Building Inspector and to your office including a thing on Seperate Search and copies of the deed indicating that the lot containing the house is in the name of Mrs. Lucy Straussner as lifetime and Antoue Straussner as remainder life. Mrs. Straussner, has a legal life interest that was created by deed - herself and her husband - quite a number of years ago. The other parcel, which is actually two seperate tax plots but we are asking that it be approved as just one building lot, is hi the name of Antone Straussner, alone. It's fairly basic Real Estate Law that a legal life tenancy is an interesting property which differentiates it from the fee interest that Mr.. Straussner holds on the vacant lot. I'd like to give the Board - and it's importtuit that the contention some statutes and case law and other information . The . definition of a life estate or other types of matters in which real property can be bought is Page 2 - Transcript of IIeari►rgs Regular Meeting of March 13, 1997 Southold Town Zoning Board of Appeals contained in the Estates Powers of Trust I,aw, Section 6-1.1 which states: "Estates in property as the duration are classified as follows:" and then there are a number of categories, the first of which is "I?eo Simple Absolute". That is how Mr. St.r,urssner owns the vacant lot. 'There are several others, the fourth of which is "Estates for Life" and that is how Mrs. Straussner owns her interest in the residence and Mr. Straussner owns the remainder of the interest. Mr. Straussner, by the way, is her son. CHAIRMAN: What was the second part that you just said? You said "Fee Simple Absolute" on the house and you said life estate was... MS. WICKHAM: 1:states U0V l,ifc. I also have to sul.rmit to you excerpts from Warren's Weed oil IZ.eal Property which is a well recognized treatise in the legal profession on Real property Law indicating and assigning authority, which I also incorporate, that a life tenant may utilize and enjoy real property in the same manner as any other owner. Life tenants havo 1110 right, to rnort.gage property. They have the right to sell their life estate. They have the right to lease their life estate. They have the obligation to pay the taxes. They have an ownership interest in that property for the terra of their life. So, very clearly under the Town Code - the way it is written - the property oil which Lhe house: is located is field by two people: the life tenant and the remainder mail. This distinguishes it from the ownership of the vacant lot which is held by the individual, Mr. Straussner. I also have quite a bit of case law going back many, many years oil this which I will try to submit for the record as well. 1111 hand that out at the conclusion. In surrrrnary, 1 feel that the Building Inspector was in error in stating that there has been a legal merger of two lots. They are totally seperate in title. - I might add that Mrs. Straussner is alive. if she died, that would terminate her life interest. CHAIRMAN: It's also lily understanding again that when you started this tonight, that bots 10 & .1.1 are to stand as they are. Is that what you're telling me? MS. WICKIIAM: Tax -wise. CIIAIRMAN: Tax -wise. MS. WICKHAM: 10 and 11 were formed one lot and Tax Lot 16 would be the other lot. CIIAIRMAN: That is corroc:t. MS. WICKHAM: The second part of illy prOscIntat.ion is - should the Board, for some reason, fool that lint's not correct - that there's a differentiation in title, I would assume that we certainly do qualify for a Waiver of Merger. These lots were created by deed, which I've submitted to the record many years ago. The proposed two lots are vastly larger than the other lots in the neighborhood. In fact, the vacant lot, which is 'Fax Male 10 & .11 , not only contains two tax lots but four lots on file now. It contains, based on information from the Page 3 - `I'r'iniseript of llcaarinl"'s IZ.Gg'U1L1C'' Meoling of Marrclr 13, 1997 Southold Town Zoning Board of Appeals srirveyor, 20,533 set. ft.. You I11rvc on rcx�carcl the tax reaps showing the sizes of the surrounding lots. The only difference, I would have to point out, would be the very, very large lot to the rear which is mostly wetlands so that is not a buildable lot. I don't think it will be doveloped to consider this to be ar precedcrrL for that. - any subdivision ori that property. CIIAIRMAN: You're referring to the 110,000 sq. ft. lot that the house is on? MS. WICKIIAM: I'm referring to the 8 acre lot behind it. MEMBER TORTORA: 10 and 11 were slightly larger than 16 and I thought 16 was conforming laws - is it in excess of 45 sq. ft.? MS. WICKIIAM: I believe it is. MEMBER `1'ORTORA: According to all the docurnonts you submitted, I believe it is. MS. WICKIIAM: I believe it is. I would have to check illy notes on that. Yes, it is. I was talking about the precedent that might be established. You were concerned about the size of the 8 acre parcel behind it that is not a developable lot. MEMBER TORTORA: I did go down to the Assessor's Office yesterday and looked at some of the surrounding lots in the area and on Wilmarth Avenue and, according to his record, on both sides of the street I think the largest parcel (simultaneous discussion) is .43 acres and the smallest is .13. So, 10 and 1.1 would be combined in one lot and, according to his estimate, it would be the largest lot in the area. MS. WICKIIAM: Would be the what? MEMBER TO.RTORA: Largest lot. MS. TORTORA : Could you also describe some of the property adjacent to Main Street to the east and the surrounding neighborhood - the gas station.' MS. WICKIIAM: There is a considerable amount of commercial usage over there. There is a gas station; to the south there is a monument business that has been there for some time. There's a full range of commercial usage across the street to the east. CHAIRMAN: I have a question - did you have something else that you wanted to say? MS. WICKIIAM: No. I have something else that I want to submit. CIIAIRMAN: Right now? MS. WICKHAM: Yes. Page 4 - 'Transcript of llearings Regular Meeting of March 13, 1997 Southold Town Zoning Board of Appeals CHAIRMAN: O.K. You were going to give me that documentation. O.K. We'll start with Mr. Villa. Any questions? MEMBER VILLA: I don't really have any questions. CHAIRMAN: Mr. Dinizio? MEMBER D1N1ZIO: Let me ask you this question as a lawyer - we'll get free advice here. If I lived with a son and I wanted to sell the lot #1G and I went to a real estate agent to sell this lot - could I -sell it? Just that lot? MS. WICKIIAM: You can sell anything. MEMBER DINIZIO: No, I mean I'm talking about with a life tenant in it. MS. WICK1iAM: Mr. Straussner, yes - lie could sell that property and anybody else could buy it. You could buy it but it would be subject to Mrs. Straussner's life interest. She has the absolute right to access that property for her entire life. CHAIRMAN: To possess the improvement on the property or the entire piece of property? MS. WICKIIAM: The entire piece of property. CHAIRMAN: 0. K. MS. WICKIIAM: She has a life estate to the fullest on that property. CHAIRMAN: In reality, have you ever seen anybody legitimately segmented into a portion of the property in reference to a life estate - can it clearly state the improvement only? MS. WICKIIAM: A life estate can be granted as to any portion of a piece of property. `I'liis was not the case. `Phis deed clearly states (coughing) ... CIIAIRMAN: Mr. Doyen? MEMBER DOYEN: No questions, thank you. CIIAIRMAN: Mrs. Tortora - ainytiling else? MEMBER TORTORA: There are also wetlands indicated but that's on lot 16. CIfAIRMAN: You raise an interesting issue in reference to the first part of your presentation. We would have to go back to our Town Attorney and have her review the documents and then we would have to meet with her - which I have no problems with. Would you like us to do that and to deal witli that asl)ect or... Page 5 - Transcript of Hearings Regular Meeting of March 13, 1997 Southold Town Zoning Board of Appeals MS. WICKIIAM: It is my understanding that the Building Inspector did consult with the Town Attorney prior to the issuance of Notice of Disapproval. CIIAIRMAN: I see. MS. WICKIIAM: 1 -ie was given advice which I disagree with and that's why I'm submitting this dOCUlnentation to you. CIIAIRMAN: I see. MS. WICKIIAM: I certainly have no objection if you want to show her this and get her opinion on it. CIIAIRMAN: Yes. MEMBER TORTORA: There are two methods for relief - for determination that they're not ►verged beelmse of the legal life estate and also for a waiver. I'm sure you would have no objection to us acting on the granter for a Waiver of Request. CIIAIRMAN: Well, that basically is the question. MS. WICKIIAM: It is important that your Board construe the Code in the first instance. I CHAIRMAN: Well, that's basically my question. So, I mean my point is that I think what we'll do is we'll hold this in abeyance and submit the documentation to the 'Town Attorney and then meet with the Town Attorney and then deal with that aspect of it. MS. WICKIIAM: I'm looking for determination that the lots are not merged. MEMBER TOR`i'ORA: Would you like the Bearing to be held open until the next meeting? MS. WICKIIAM: No, I've submitted everything. MI?MBER TORTORA : O.K. CHAIRMAN: O.K., good . MS. WICKIIAM: I look forward to a determination as soon as possible. Thank you . CIIAIRMAN: `Thank you. Is there anybody else who would like to speak in favor of this application? (No one wished to speak.) CHAIRMAN: Is there anybody who would like to speak against the application? Anybody like to say something back there? 0 .Page G - Transcript of Hearings Regular Meeting of' March 13, .1997 Southold `Town Zoning Board of Appeals MAN'S VOICE FROM BACK OF ROOM: No, I think we're all set. CHAIRMAN: You're all set. hearing no further comment I'll make a motion closing the hearing, reserving decision until later. All in favor? (All ayes.) NAMES AND ADDRESSES OF PEOPLE SERVED Stephen O'Kula Patrick & Robin Walden Bayberry Enterprises Halsey & Jane Staples Fred Born and others William F. Heaney Esther Sperling G. Spanos George & Angelika Spanos Arthur M. Pollok c/o Macomber 28 Wilmarth Avenue Greenport, N.Y. 11944 980 Cedarfields Drive Greenport, N.Y. 11944 Stars Road Box 159 East Marion, N.Y. 11939 29 Middleton Road Greenport, N.Y. 11944 40 Roeckel Avenue Valley Stream, N.Y. 11580 2425 N.E. 14th Street, #80 Ocala, Florida 34470 503 Main Street Greenport, N.Y. 11944 Greenport Service Station 1110 Main Street Greenport, N.Y. 11944 31-06 34th Street, Apt. 2R Astoria, New York 11106 318 Third Street Greenport, N.Y. 11944 i� P� 3'36 414 142 US Postal Service Receipt for Certified Mail No Insurance Coverage Provided. rn rn `c a C C cc LL Q a P Certified Fee Special Delivery Fee Restricted Delivery Fee , ` Return Receipt Showing to ' Whom &Date Delivered•,, o• Return Receipt Showing to Whom; Q Date, & Addressee's Address 0 TOTAL Postage & Fees $ Postmark or Date 0 LL N a Do not use for International man aee reverse Sent to Patrick and Robin Walden Street & Number 980 Cedarfields Drive Post Office, State, & ZIP Code Green ort N.Y. 11944 Postage $ .32 Certified Fee 1 Special Delivery Fee!,* Return Receipt Showing to", Whom & Date Delivered, Restricted Delivery Fee Return Receipt Showing to Whom, Date, & Addressee's Address Certified Fee TOTAL Postage & Fees Return Receipt Showing to Special Delivery Fee-, Whom &Date Delivered'L•_ M` f}.: �, � -' 1.10 Return Receipt Showing to Whom, Return Receipt Showing to Whom, Date, & Addressee's Address Date, & Addressee's Address Return Receipt Shoving to; - r TOTAL Postage & Fees $ 2.52 Postmark or Date ost Office, State, &ZIP Code Greenport, N.Y. 11944 ostage .32 �I P 336 414 141 US Postal Service Receipt oreiif C rtfe d Ni all No Insurance Coverage Provided. Do not use for International Mail See reverse n _ Street & Number Street & Number 28 Wilmarth Avenue 40 Roeckel Avenue Postage, Post Office, State, & ZIP Code Certified Fee -,Vallev Stream. NY 1158 Special Delivery Feer Postage $ . _ .-32— 3Certified 1.10 Return Receipt Showing to", Whom & Date Delivered, . ,•- _- '� i ^^_;'.; : ' 1 . 10 Return Receipt Showing to Whom, Date, & Addressee's Address Certified Fee TOTAL Postage & Fees $ 2.52 Special Delivery Fee-, Return Receipt Showing toty Whom & Date Delivered Restricted Deliveryltee Return Receipt Showing to Whom, Date, & Addressee's Address LO rn Return Receipt Shoving to; - r Whom &Date Delivered . v ;;? g 4 -✓ ` 1.10 CL Return Receipt Showing to Whom, TOTAL Postage & Fees' Q Date, & Addressee's Address D.- 0 TOTAL Postage & Fees $ 2.52 `"a Postmark or Date COOJ EPostmark LL C Whom`& Date Delivered_1'',,10 n Return Receipt Showing to Whom, - Q Date, & Addressee's Address - - 0 TOTAL Postage & Fees $ 2.52 Postmark or Date E o LL :n 2 all No Insurance Coverage Provided. Do not use for International Mail See reverse n _ Sent to Stephen O'Kula c/o Macomb Street & Number 28 Wilmarth Avenue Post Office, State, &ZI Code Greenport, New York 11944 Postage, .32 Certified Fee 1.10 Special Delivery Feer 1 . 10 Restricted Deliveryl',Fee, 1.10 Return Receipt Showing to", Whom & Date Delivered, . ,•- _- '� i ^^_;'.; : ' 1 . 10 Return Receipt Showing to Whom, Date, & Addressee's Address E c u TOTAL Postage & Fees $ 2.52 Postmark or Date P 336 414 143 US Postal Service Receipt for Certified Mail No Insurance Coverage Provided. Do not use for International Mail See reverse r Sent to Bayberry Enter rises Street & Number Stars Road Box 15 Post Office, State, & ZIP Code East Marion N.Y. 11939 Postage $ . 32 Certified Fee 1 . 10 Certified Fee 1.10 Special Delivery Fee' c _ r7 Restricted Delivery E c u Restricted Delivery Fee r Return Receipt Showing to Return Receipt Showing toty Whom & Date Delivered f=rY �110 10 Return Receipt Showing to Whom, Date, & Addressee's Address -_. , TOTAL Postage & Fees $ Qil 2-.52 Postmark or Date Q J Post Office, State, & ZIP Code irear Green ort, N.Y. 11944 . cmice, btate, & ZIP Code Postage $ .32 Postage $ Postage Certified Fee 1 . 10 Certified Fee Special Delivery Fee I 2.52 Special Delivery Fee E c u Restricted Delivery Fee r Restricted Delivery Fee Return Receipt Showing toty Return Receipt Showing to ' _ 1, 10 rn Return Receipt Showing to l \�, J Whom & Date Delivered',. - • _ Whom &Date Delivered °j Q Return Receipt Showing to Whom"; nr ' : - " i a Return Receipt Showing to Whom; TOTAL Postage & Fees' Date, & Addressee's Address 2.62t Q Date, & Addressee's Address TOTAL Postage & Fees $ 2,52 0 TOTAL Postage,& Fees $ COOJ EPostmark or Date 2.5 E Postmark or Date r_ ri (f) a_ Cl) a - ua, Pob _ PdSrar� --•---_ter Receipt for Certified Mail I Receipt for Certified Mail No Insurance Coverage Provided. No Insurance Coverage Provided. Do not use for International Mail (See revers e Do not use for International Mail See reverse Sent to I Postage $ Certified Fee l' Special Delivery Fee Restricted Delivery Fee'- LO 1,.�' Return Receipt Showing'to ' *- Whom & Date Delivered i Q Return Receipt Showing to Whom, Q Date, & Addressee's Address 0 TOTAL Postage & Fees is V) Postmark or Date 0 Un) .32 !� ;1 •.,10 Pot Office, State, & ZIP Code Greenport, N.Y. 11944 Postage $ - .32 Lr - ,1\20 a 1 . 10 I 2.52 a V E c u � 0 Sent to !� Str�e�& iird Street Pot Office, State, & ZIP Code Greenport, N.Y. 11944 Postage $ - .32 Certified Fee rr 1 . 10 Special Delivery Frie=': Restricted Delivery`Fee �, Return Receipt Showing toty o -e '. 1.10 Whom & Date Delivered-, ' Return Receipt Showing to Whom, Dale, -Addressee's Address I. TOTAL Postage & Fees' $-'I"4 0"-' 2.62t Postmark or Date t f BOARD OF APPEALS:TOWN OF SOUTHOLD -------------------------------------X In the Matter of the application r ANTONE AND LUCY STRAUSSNER ------------------------------------X COUNTY OF SUFFOLK) STATE OF NEW YORK) AFFIDAVIT OF POSTING f ' MAR 1219971 I, ROSEMARY E. KLOS, residing at 1235 Jockey Creek Drive, Southold, New York, being duly sworn, depose and say: That on the 3rd day of March, 1997, I personally posted property known as 11335 Main Street and 1045 Wilmarth Avenue, Greenport, N.Y." by placing the Town's official poster sign ten (10) feet, or closer, from the front property line where it can easily be seen from the street, and that I have checked to be sure the poster has remained in place for seven full days prior to the date of the public hearing (date of hearing noted thereon to be held March 13, 1997 Dated: March // , 1997 Roseffiaikry E Klo Sworn to before me this day of Mar h, 1997. of ry Pu lic ABIGAIL A. WICKHAM Notary Public, State of New York No. 52-4642871 Qualified in Suffolk County -(1)1 � Commission Expires Sept. 30, 19. W C0 V e� pF uft1pEr51ZEA LOTS NOTICE OF HEARING NOTICE IS HEREBY GIVEN that a public hearing will be held by the SOUTHOLD TOWN BOARD OF APPEALS at the Town Hall, 53095 Main Road, Southold, New York, concerning this property. OWNER(S-).OF RECORD: RNIafiE--+ LUC STei4usSnEe... DATE OF PUBLIC HEARING: Thurs., MARcN l�, lqql If you have an interest in this project, you are invited to view the Town file(s) which are available for inspection prior to the day of the hearing during normal business dans between the hours of 8 a.m. and BOARD OF APPEALS •TOWN OF SOUTHOLD 9 (516) 765-1809 n'i n/ cf + fit) i I Mn rft A v to rv) tp;oij PA,PT j � APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Serge Doyen James Dinizio, Jr. Robert A. Villa Lydia A. Tortora Dear J�Mnu BOARD OF APPEALS TOWN OF SOUTHOLD February 25, 1997 Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax(516)765-1823 Telephone (516) 765-1809 At this time, please send a notice with the March 13, 1997 hearing date noted -thereon, or a copy of the enclosed Legal Notice, by certified mail, return receipt requested, to the surrounding property owners. The Affidavit of Mail with proof of mailing (white certified mail receipts postmarked), must be returned, to us within the next week. Please do not wait for the green signature cards to be signed and returned. The green signature cards may be returned separately on the day of the hearing when you receive them. Please feel free to stop by, or call us, during the last few days of processing to review any updates, communications,. or handwritten notes added to the file by individual board members. Very truly yours, Linda Kowalski Enclosures (.2) SOUTHOLD TOWN BOARD OF APPEALS TOWN OF' SOUTHOLD:COUNTY OF SUFFOLK ---------------------- ---------------x In the Matter of the Application Of ---------------------------------------x AFFIDAVIT OF MAILING I ,being duly sworn, depose and sap: That I reside at That I mailed a ' true copy of -the Notice setting forth the date of the public hearing of the above application, by certified mail, return receipt requested, to each of the persons at the addresses set opposite their respective names (Iisted below or on addendum attached hereto) ; That the addresses set . opposite their names are, the addresses shown on the current 'assessment roll of the Town of Southold; That said Notices were mailed by certified mail, return receipt requested, at the United States Post Office located at ; That the postmarked (dated) receipts for the above mailings are attached to this Affidavit; That upon receipt of the green' signature cards, I agree to submit the same to the Office of the Board of Appeals for the permanent file. (Signature) Sworn to before me this day of , 199 _ (Notary Public) 1e -w APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Serge Doyen James Dinizio, Jr. Robert A. Villa Lydia A. Tortora i O�Og�FFO�,�-cOG _� yam► o =� C** Z O BOARD OF APPEALS TOWN OF SOUTHOLD February 19, 1997 Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1809 Please find enclosed a copy of the Legal Notice confirming the date of the public hearing for your application to be held Thursday, March 13, 1997. This notice is expected to be published by our office in the upcoming issue of the Times -Review. Also enclosed is a sign which must be posted within 10 feet from the front property line (facing the traveled street) . After the sign has remained in place at least seven days, the enclosed Affidavit should be signed by you before a notary public, and returned to our office before March 12, 1997. (Please note: The sign may remain in place longer, which is always preferred.) Please feel free to stop by, or call us, during the last few days of processing to review any updates, communications, or handwritten notes added to the file by individual board members. Very truly yours, Linda Kowalski MaryAnn Cybulski Enclosures P. S. For your convenience, we . enclose a copy of the "standards" of law .to be addressed at the hearing, or in writing beforehand. Please note that different standards of law apply in different appli- tions, i.e. "area standards under New York Town Law" apply to most variance applications, "waiver standards under 100-26" apply to merged lots as per 100-25 (different than area standards). "Land use standards of Town Law" apply to use variances. If you are requesting a "Special Exception" Permit, standards would apply under Town Law and in the Zoning Code, Sections 100-263'thru 100-265. LEGAL NOTICE NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law- and the Code of the Town of Southold, the following applications will . t be held for public hearings by the SOUTHOLD TOWN BOARD OF APPEALS, at the Southold Town Hall, 53095 Main Road, Southold, New York 11971, on THURSDAY, MARCH 13, 1997 at the times noted below (or as soon thereafter as possible): 6:45 p.m. Appl. #4459 - ANTONE AND LUCY STRAUSSNER. A Waiver is requested for two undersized lots, which waiver is based on the Nov. 15, 1996 Action of. Disapproval by Building Inspector due to lot merger after 1983. The lots show creation by deed and conformity in size when first created (ref: Building Inspector's notations) . Location of Lands: 335 Main St. and 1045 Wilmarth Avenue, Greenport. R-40 Zone. 1000-34-1-16 as one lot, and 1000-41-1-10 & 11 as the other lot. 6:50 p.m. Appl:. #4462 - VIVIEN and PETER Soo., A variance is requested for a reduced front yard setback for proposed new dwelling, based on the January 15, 1997 Action of Disapproval issued by the Building Inspector. Location of Property: 265 Cedar Point Drive East, Southold. Required front yard: to be determined based on those established within 300 feet, same block, same side of street, or bulk schedule minimum of 35 ft. front, 35 ft. rear, 10 ft. and 15 ft. sides, pertaining to this lot size of 15,576+- square feet. County Parcel No. 1000-90-3-9. (Note: Setbacks Page 2 - Legal Noti _ Board of Appeals Hearings to be Held 3/13/97 from the water aret determined by Town Trustees and NYS DEC, when no bulkhead or wall exists.) 6:53 p.m. Appl. No. 4464 - TOMIS AND KATHY KOURKOUMELIS . Request for a Variance under Article XXIV, Section 100-239.4, based upon the February 1997 Action of Disapproval issued by the Building Inspector, for permission to locate swimmingpool with fence enclosure with setback at less than the required 100 ft. setback . from the top of the bank or bluff along the Long Island Sound. Location of Property: 54775 C. R. 48, Greenport, NY; County Parcel No. 1000-44-1-2. 7:00 p.m. Appl . No. 4453 - EDWARD AND EVELYN HALPERT . (Continued from 2/6/97) . Request for Variance to alter and/or expand nonconforming building which has contained a nonconforming guest or living unit, separate and accessory to the main dwelling. Location of Property: 2125 Town Harbor Lane, Southold, NY; County Parcel #1000-66-1-31. Zone: R-40 Residential. Property size: 1.45+- acres. 7:10 p.m. Appl. No.' 4429SE and 4430, by LILCO, as Contract Vendee. These applications apply to premises referred to as 8550 (vacant land) Main Road, Mattituck (near Laurel), identified as 1000-122-7-6.6, further identified as Lot #2 consisting of 35,798 sf. . as shown on the Subdivision of Map of "Frank Murphy Garden Center" approved by the Southold Town Planning Board 4/12/1982. Applicant, as contract vendee, is requesting: (a) Appl. No. 4429SE - Special Exception for Use of Vacant Land as shown on plot plan for a compressor station building with fence enclosure in this "B" General Business District. (b) Appl. No. 4430 - Variance under Article XXIII, Section 100-231-A for permission to construct fence enclosure, which exceeds 1 Page 3 - Legal Notiu- Board of Appeals Hearings to be Held 3/13/97 maximum fence height restriction of 6 feet when located in the front yard, and which exceeds 6-1/2 feet in or along side and rear yards. 7:30 p.m. Appl . No. 4463 - LAWRENCE SUTER d/b/a BLUEWATER SEAFOOD. This is a Variance based upon the January 6, 1997 Action of Disapproval issued by the Building Inspector, which states that a "permit to construct metal frame with canvass roof (addition) to existing retail fish market is disapproved on the following grounds: Under Article XXIV, Section 100-244B, proposed addition to existing retail fish market with accessory seasonal single service utensil seating, proposed construction is on a nonconforming lot located in the B General Business District, has insufficient side yard of ... less than the required 10 feet. Action required by the Zoning Board; action also required by the Planning Board...." Location of Property: 11400 Route 25, Mattituck, NY; County Parcel No. 1000-122-3-7. The Board of Appeals will at said time and place hear any and all persons or representatives desiring to be heard in the above applications. Written comments may also be submitted prior to the conclusion of the subject hearing. The above hearings will not start before the times designated, and some may be carryover hearings. The files may be reviewed during regular business hours for updates or new information. If you have questions, please do not hesitate to call 765-1809. Dated: February 19, 1997. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER, Chairman By Linda Kowalski V11 NOTICE OF HEARING NOTICE IS HEREBY GIVEN that a public hearing will be held by the SOUTHOLD TOWN BOARD OF APPEALS at the Town Hall, 53095 Main Road, Southold, New York, concerning this property. OWNER(S) OF RECORD: RN D N� + LUC1� STeftusSAE1 DATE OF PUBLIC HEARING: Thus., MPRcN l 5, 1 99 aw7 4*qTp.m. If you have an interest in this project, you are invited to view the Town file(s) which are available for inspection prior to the day of the hearing during normal business days between the hours of 8 a.m. and ' BOARD OF APPEALS • TOWN OF SOUTHOLD e (516) 765-1809 Maris ft Ve, 6ifeelvl%er U. All lots .:,e subject to the merger provisions of § § 100-26. Merger. [Added 11-28-1996 by L.L. No. 23-19961 A. Merger. A nonconforming lot shall merge with an adjacent conforming or nonconforming lot which has } been held in common ownership with the first lot at -any time after July 1, 1983. An adjacent lot is one which abuts with the parcel for a common course of fifty (60) feet or more in distance. Nonconforming lots shall merge until the total lot size conforms to the current bulk schedule requirements. B. Definitions. "Common ownership" shall mean that the parcel is held by the same person in the same percentage of ownership as an adjoining parcel. C. Exceptions. Lots which are recognized under § 100-24 and meet any of the following categories shall be exempt from the merger provision set forth above and shall not be deemed merged by operation of this chapter: (1) The nonconforming lot has a minimum size of forty thousand (40,000) square feet, or (2) The nonconforming lot obtained a lot size variance from the Zoning Board, or (3) If the lot is not on the maps described in former § 100-12,4 the nonconforming lot has been held in single and separate ownership from July 1, 1983 to date, or (4) If the lot is 'on the maps, described -in former § 100-12, the nonconforming lot has been held in single and separate ownership from January 1, 1997, to date. D. Proof of merger. Tlie town may require a person seeking determination of merger to provide any or all of the following documents for evaluation: (1) Proof of the date when Elie lot was created and the size of Elie • lot, together with a copy of a legal description of the parcel, all to Elie satisfaction of the town. (2) A copy of the current tax map and survey of the lot. (3) A copy of the original survey of the lot. (4) A title search showing single and separate ownership of Elie property from July 1, 1983, to the present time, prepared by a Suffolk County title insurance company indemnifying Elie Town of Southold with twenty-five thousand dollars ($26,000.) of insurance. (6) Other additional information or documentation as may be deemed necessary. E. Effect of merger. No building permit or other development entitlement will be issued by the town until this section has been complied with. The Building De- partment will issue a written determination whether a property falls within an exemption to the merger provision. § 100-26. Waiver of merger. `-- A. If 'a lot has merged, the Zoning Board 'of Appeals may waive the merger and recognize original lot lines upon public hearing and upon finding that: (1) The waiver will not result in a significant increase in the density of the neighborhood. (2) The waiver would recognize a lot that is consistent with the size of lots in that neighborhood. (3) The waiver will avoid economic hardship. (4) The natural details and character of the and character of the contours and slopes of the lot will not be significantly changed or altered in any manner, and there will not be a substantial filling of land affecting nearby environmental or flood areas.- ARTTO..T,r TiT JUDITH T. TERRY TOWN CLERK REGISTRAR OF VITAL STATISTICS OFFICE OF THE TOWN CLERIC TOWN OF SOUTHOLD TO: SOUTHOLD TOWN ZONING BOARD OF APPEALS FROM: JUDITH T. TERRY, SOUTHOLD TOWN CLERK RE: ZONING APPEAL NO. 4459 DATE: JANUARY 21, 1997 Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 TELEPHONE (516) 765-1801 Transmitted is an application for a waiver submitted by ANTONE A. STRAUSSNER, JR. together with Zoning Board of Appeals Questionnaire; Notice of Disapproval from the Building Department; survey; and other relevant documents. Judith T. Terry Southold Town Clerk A Town of Southold Board of Appeals Town Hall Main Road Southold, New York 11971 Re: Antone A. Straussner, Jr. Northwest corner of Main Street and Wilmarth Avenue, Greenport, NY (1000-41-1-10 & 11) Lucy Straussner, as Life Tenant and Antone A. Straussner, Jr., as Remainderman (1000-34-1-16 Gentlemen: We are requesting a Determination of Non -Merger or in the alternative, a Waiver of Merger with respect to two parcels in Greenport, Town of Southold, New York, located outside of the Incorporated Village. While the property consists of three separate tax lots, two of which each contain two lots on the filed Map of Washington Heights, the applicant is requesting a determination as to the existence of only two lots altogether. Both lots are considerably larger than the other lots in the surrounding neighborhood. We call your attention to the request for a Merger Determination addressed to Mr. Fisher of the Building Department. That letter explains that one of the parcels (1000-34-1-16) is owned by Lucy Straussner, as Life Tenant, and by her son, Antone A. Straussner, Jr., as Remainderman. The other parcel (1000-4-1-10 & 11) is owned entirely by Mr. Straussner. We believe this has resulted in single and separate lots since 1970, when this ownership was established. In connection with the application, we enclose the following: 1. Application for Waiver Under Section 100-26 2. Copies of Tax Maps showing each parcel. The owners have asked Roderick Van Tuyl P.C. to prepare a survey which we expect to submit to you shortly. We expect the survey will show all structures to be entirely upon Lot No. 1000-34-1-16. In the event the survey indicates the presence of Freshwater Wetlands at the rear of the property, an application will be submitted immediately to the Southold Town Trustees. LAW OFFICES WICKHAM, WICKHAM & BRESSLER, P.C. 10315 MAIN ROAD, P.O. BOX 1424 MATTITUCK, LONG ISLAND WILLIAM WICKHAM NEW YORK 11952 MELVILLE OFFICE 275 BROAD HOLLOW ROAD ERIC J. BRESSLER ABIGAIL A. WICKHAM SUITE III 516-298-8353 MELVILLE, NEW YORK 11747 LYNNE M. GORDON JANET GEASA TELEFAX NO. 516-298-8565 516-249-9480 JEFFREY STARR TELEFAX NO. 516-249-9484 HUBERT F. SULLIVAN January 15, 1997 Town of Southold Board of Appeals Town Hall Main Road Southold, New York 11971 Re: Antone A. Straussner, Jr. Northwest corner of Main Street and Wilmarth Avenue, Greenport, NY (1000-41-1-10 & 11) Lucy Straussner, as Life Tenant and Antone A. Straussner, Jr., as Remainderman (1000-34-1-16 Gentlemen: We are requesting a Determination of Non -Merger or in the alternative, a Waiver of Merger with respect to two parcels in Greenport, Town of Southold, New York, located outside of the Incorporated Village. While the property consists of three separate tax lots, two of which each contain two lots on the filed Map of Washington Heights, the applicant is requesting a determination as to the existence of only two lots altogether. Both lots are considerably larger than the other lots in the surrounding neighborhood. We call your attention to the request for a Merger Determination addressed to Mr. Fisher of the Building Department. That letter explains that one of the parcels (1000-34-1-16) is owned by Lucy Straussner, as Life Tenant, and by her son, Antone A. Straussner, Jr., as Remainderman. The other parcel (1000-4-1-10 & 11) is owned entirely by Mr. Straussner. We believe this has resulted in single and separate lots since 1970, when this ownership was established. In connection with the application, we enclose the following: 1. Application for Waiver Under Section 100-26 2. Copies of Tax Maps showing each parcel. The owners have asked Roderick Van Tuyl P.C. to prepare a survey which we expect to submit to you shortly. We expect the survey will show all structures to be entirely upon Lot No. 1000-34-1-16. In the event the survey indicates the presence of Freshwater Wetlands at the rear of the property, an application will be submitted immediately to the Southold Town Trustees. Town of Southold Page Two Board of Appeals 3. Letter to Thomas Fisher, Senior Building Inspector, dated October 31, 1996, together copy of Deed dated March 7, 1970 into Antone A. Straussner, recorded in Suffolk County Clerk's Office on April 30, 1970 in Liber 6724, 491 and copy of deed dated March 14, 1970 into Antone A. Straussner, Jr. and recorded in Suffolk County Clerk's Office on April 3, 1970 in Liber 6724, Page 493. This second deed reserves the right to Mr. and Mrs. Straussner of a life estate to Parcel One. 4. Notice of Disapproval of Town of Southold Building Department dated November 15, 1996. 5. Questionnaire for Filing with Z.B.A. Application. 6. Notice to Property Owners together with receipts showing that the Notices had been mailed by certified mail. 7. Copies of tax bills. 8. Check of Wickham, Wickham & Bressler to the order of Town of Southold in the sum of $150.00. Piga rulyyoursl A. Wickham AAW:mh encl. 30-shdtnboa QQARD-(LAi'I'L'/1L5, TUWN Ufa SUU'I im.0 _— III cite Matter of the Petition of ANTONF A STRAITS SNT+.R .TR _ — ioclic LUIYIt tUuuLbidd _ IU: YOU AIt1: 11r-ItI'll Y (ilVl H HC.)TICI:: No IIC TO PROPERTY 01411,11 I. '11111 II Is IIIc hllenlion of the undetsigncd to !tclllion Ilse Oolyd r1f Appeals of Ilse 1'11-1, 0l 5oulhrlld In Ic1!ltesl a.(Varl.tnce) (Special Excelttlon).(S!tecial d'erntll) (QLlter IaJ.►:eJ.e cho1ce I __--Waiver of_ merger 2. 111,11 the 1)rofrelly which Is the subject of the, 11clltlon Is located near to your Ifio!lcrly Ind is dr,s- r.rllied -ts foil ,-s: Northwest corner of Main Street__ancJ_.Wilm- x-th Avenue. GrrrengQr'-ta_.-NY_.1.19.4.4... 3. Ilial the !tru!terly wlticlt Is the suhlecl of such I'elltloll is localyd In the followIIII,, ronhlp, 11151r!rt: I ll�,tl 11� such I'ellllun 11ic undersigned will Ic1!trest the follo-1111! relief: non—merger/or Waiver ofinerger` S. 'f hal Ilse provisions of the Southold 'I own Zoning Cudl:.1pplicll,lc to the tellef soul;ltt by the miller• sil;ttco arc nrl:J.c.le 2 SecUott—•100-24A and 25A b, 11111 within flue clays front clic d11c hetcof. 1 -ripen I'elltlon te(lueslhtg the re.11ef specified shove will lie fllcd In the Southold Town Clerk's ('Puce at Mallr Road Solllhuld,--flew York and you filly hien 11111 these exanthle the same (1111111;; regu.11r office hours. (5.16) 1t; 5, l.UU9. 7. f hal before the rellef solighl may Ice ;hinted, 1 ptihlic hcalllt.l! 1,111.51 Ire held on the 11111ler by lilt. Ilo.fid of nlr;tcals; !1111 a nollce of such helrhtg must be ptrhllsllcrl aI Ic151 five clly,s 1)rlor to the d11e of such Itt.aring Ili the I Long island Traveler-M11Ill ucl( Watclnnan', lie ws!)apets_ plll)Ilshed Irl Ilse •town of Southold and designated for the pultllcatlun of such rrutices; that you or your tef)resenlallve have Ilre right to ippear and be heard al such hearlttg. Dated: December 23, 1996 ' I'etllloncr Uwne► s' ldnIll es : Antone A. Straussner, Jr. Posl Office, Aildiess 62 Henry Avenue, Selden, N.Y�.__11Z.-$4....... .._...._.._._ I e I . PI u . ( "516 ) 298-8353 (.Golly of skel:ch or 1)IIrl show Ino I)ro11os111 I:o he (1 1:1:ache(I tut' cc►nvt�tllanl:r� 1)ur11uSe5 . PROOF OF MAILING OF NOTICE ATTACH CERTIFIED M41L RECEIPTS NAME ADDRESS Ln M -El rp 1 ri .n � S -0 M M -0 m � M m 0- CL STATE OF NEW YORK) ss.: COUNTY OF SUFFOLK ) �(t#7 9664 ludd'®®RE wood Sd Madeline S. Haas _ residing at 595 grower. Road Mati-il-11—k,1 ILQSa being duly sworn, deposes and says that on the 14th day of January , 19 97 , deponent mailed a true copy of the Notice set forth on the re- verse side hereof, directed to each of the above-named persons at the addresses set opposite their respective names; that the addresses set opposite the names of said persons are the addresses of said persons as shown on the current assessment roll of the Town of Southold; that said Notices were mailed at the United States Post Of- fice at _ Mattituck New York 11952 that said Notices were mailed to each of said persons by (certified) (registered) mail. Madeline S. Haas Sworn to before me this day f January ,19 97 LaNotary P blit ANN MARIE MARQUARDT NOTARY PUBLIC, State of New Yak No.01 MA5062380 Qualified in Suffolk County Commission Expires July t, /qgg (This side does not have to be completed on form transmitted to adjoining property owners.) 9664 ludd'®®RE wood Sd Madeline S. Haas _ residing at 595 grower. Road Mati-il-11—k,1 ILQSa being duly sworn, deposes and says that on the 14th day of January , 19 97 , deponent mailed a true copy of the Notice set forth on the re- verse side hereof, directed to each of the above-named persons at the addresses set opposite their respective names; that the addresses set opposite the names of said persons are the addresses of said persons as shown on the current assessment roll of the Town of Southold; that said Notices were mailed at the United States Post Of- fice at _ Mattituck New York 11952 that said Notices were mailed to each of said persons by (certified) (registered) mail. Madeline S. Haas Sworn to before me this day f January ,19 97 LaNotary P blit ANN MARIE MARQUARDT NOTARY PUBLIC, State of New Yak No.01 MA5062380 Qualified in Suffolk County Commission Expires July t, /qgg (This side does not have to be completed on form transmitted to adjoining property owners.) LAW OFFICES WICKHAM, WICKHAM & BRESSLER, P.C. 10315 MAIN ROAD, P.O. BOX 1424 MATTITUCK, LONG ISLAND WILLIAM WICKHAM NEW YORK 11952 MELVILLE OFFICE ERIC J. BRESSLER 275 BROAD HOLLOW ROAD ABIGAIL A. WICKHAM SUITE III LYNNE M. GORDON 516-298-8353 MELVILLE, NEW YORK 11747 JANET GEASA TELEFAX NO. 516-298-8565 JEFFREY STARR 516-249-9480 HUBERT F. SULLIVAN TELEFAX NO. 516-249-9484 October 31, 1996 Mr. Thomas Fisher, Senior Building Inspector Southold Town Building,Department Southold Town Hall Main Road Southold, New York.11971 Re: 1) SCTM# Owner: 2) SCTM# Owner: Dear Mr. Fisher: 1000-41-1-10 and 11 Antone A. Straussner, Jr. 1000-34-1-16 Lucy Straussner, life tenant Antone A. Straussner, Jr., remainderman We would like to request that you issue a determination that the above two parcels have not merged purusant to Section 100-24 et seq. of the'Zoning Code. The property consists of the above three tax lots, which we are seeking to have approved as two, rather than three, separate lots. Tax lots 10 and 11 actually consist of a total of four lots on the filed map of Washington Heights, but given their small size and other factors, we think it advisable to consider them all as one lot. Tax lots 10 and 11 are vacant. Tax lot 16 contains a residence. According to the deeds enclosed, these parcels were owned by Antone A. Straussner .(Sr.), who conveyed them to Lillian S. Vojik in 1968. On Lillian's death, she left the property by will to Antone A. Straussner (Sr.), who conveyed them to himself and his wife, Lucy, by deed dated March 7, 1970 in Liber 6724 mp 491. Several days later, on March 14, 1970, by deed in Liber 6724 page 493, Antone Sr. and Lucy conveyed Tax lots 10 and 11 (Lots 25, 26, 27 and 28 on the Map of Washington Heights) to their son, Antone A. Straussner, Jr. (Parcels Two and Three on the deed). This deed also conveyed, as Parcel One, Tax lot 16 to their son, subject, however, to a life estate to Antone Sr. and Lucy. Antone, Sr. has died, but Lucy is still living. It is her life estate, in existence since March 14, 1970, which makes the two parcels single and separate. In support of our request, we enclose the following: 1. Application for Building Permit. 2. Check to Southold Town Building Department for $25.00. 3. Copy of deeds in Liber 6724 pages 491 and 493. 4. A copy of the tax maps and the applicable portion of t. f,�iled map�,h' 5� Please contact me if you require any further information or have any questions. Ve truly ours, igail A. Wic a AAW:mh encl. 30-blgdpmer QUEST r_CMIA IRE FOR FIL IlTG WITH YOUR Z.B.A. APPLIC 1TIOU A_ Please disclose the names of the owner(s) and any other individuals (and entitles) having a -financial interest in the subject premises and a description of their interests: (separate sheet may be attached_) Lucy Straussner, Life Tenant Pa rel T Antone A Straussner. Jr Owner _ Par^el T and TT Thomas A Klos and Rosemary E. Klos Proposedtransfer of Parcel II to family B_ Is the subject premises listed on the real es t.Le mar Ke c for member. saleorbeing shown to prospective buyers? { } Yes ve_S, —z'.a r-nry Q -f llcondi t C_ Are there gropasals age or zlter lsnd ccs �? ( } Yes { } No D. 1. Aze' there any areas which cont. -in wetland. grasses? �,jo z_ Are the wetland areas shown on the map submi.ct=-d with this application? No 3. Is the proper bu13kheaded between the we area and the upland building area? 4. If your property conta±ns wetlands or pond areas, have you contacted the Of ice of the Town T=astees for its determinatign g zjr; sdic;-lon? *There is a fresh water wetland ' eAH� Parcel I. W�9ked the surveyor to confirm whether it encroaches on the rear of Parcel I. Z_ IS there a depression or sloping elevation hear the area or proposed const-uc;.ion at or below five feet above mean sea level? N.A. (Ii not applicable , st= to "N -A- " ) F. Are there any pati os, con=ete barriers, bu? kheads or fs^ whi ch e�u L and are not shown on the sr -Te -r map that You arm' submitting? Ala _ IF none ex±s-t, please state "none-" G-- Do you have any constrczct�on taking place at this time concerning your pre*nises? l_o _ I-1- yes, please submit . a copy or your building permit and map as approved by the 8ui1d_ng Depart ent_ If none, please state - Do you or any co-owner alsd own other land close to this parcel? '� If ves, please e7cplain here or subm—i t ccaL"S of deeds _ - I. Please >;st Dresent use or operations conducted at Darcel Parcel I residence Parcel II. Vacant land and proocsed use Parcel I and Parcel II Residence Antone A. Straussner, Jr.