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HomeMy WebLinkAbout5003 /j�cc 42 LLa yo Z(ok:97/ .FA >°o er 5b03 9/Ao/ol , o/e1/ci Pi;s/o l , /7dv/oz., ./ e'cz. Vt.7 P 41 47. z' J Tt,e;e s TgVic v' enc /c9 ')/c9 ') Q7.0A09 644e 1) a,"_ ceweile4 )aeA, tot .Xyc-r _.... C( ./( cz / . &{e— «�r .A1° ,�r � IIDJ�Z'.fzl� Gil ' .oi";"—d 4� I = 1 APPEALS BOARD MEMBERS ,,, opco _` G Southold Town Hall ��� erard P. Goehringer, Chairman _ , 'yam: 53095 Main Road Lydia A. Tortora t y Z P.O. Box 1179 George Horning � Southold,New Ydik 11971-0959 Ruth D. Oliva 0-0° ZBA Fax (631) 765-9064 . y � Vincent Orlando '_." 1 , 4%00 Telephone (631)765-1809 .....�''� http://southoldtown.northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD FINDINGS, DELIBERATIONS AND DETERMINATION MEETING OF JUNE 6,5D03 Appl. No. — KACE LI, INC. Property Location: South Side of C.R. 48 (North Road), Greenport 1000-40.-3-1 Date of Public Hearing(s): 9/20/01; 10/4/01, 11/15/01; 1/24/02; 2/28/02. In the Matter of KACE L.I. LLC to reverse the Building Inspector's determination rendered in the August 13, 2001 Notice of Disapproval and for an interpretation of the Code of the Town of Southold, Ch. 100, Article IV, Section 100-42 A.2, pertaining to "Use Regulations" in the Hamlet Density District. FINDINGS OF FACT BASIS OF APPEAL: Appellant Kace LI, Inc. is appealing the Building Inspector's August 13, 2001, Notice of Disapproval, which denied an application for a building permit to construct "Multiple, two-family dwellings." The August 13, 2001 Disapproval recites the following: Proposed dwellings not permitted pursuant to Article IV Section 100-42A.2 which states, In the HD District, no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part, for any use except the following: A. Permitted uses. (2) Two-family dwelling. Proposed project indicates several (exact amount unknown) two-family dwellings on a single parcel. Code allows only one such structure per lot as a permitted use. RELIEF REQUESTED: Applicant maintains that the building inspector erred in interpreting 100-42A.2 to limit the number of two-family dwellings to one per lot. Applicant maintains that 100-42A does not limit the number of two-family dwellings to one per lot, and requests the Board of Appeals to reverse the inspectors determination based on this interpretation. WHEREAS, The Zoning Board of Appeals held public hearings on this application on 9/20/01; 10/4/01, 11/15/01; 1/24/02; 2/28/02, at which time written and oral evidence were presented. Based upon all testimony, documentation, personal inspection of the property, and other evidence, the Zoning Board finds the following facts to be true and relevant: PROPERTY DESCRIPTION: The subject property is a 17 acre parcel located on the south side of North Road CR. 48, approximately 500 feet east of Chapel Lane, Greenport. SCTM Page 2—June 6, 2002 Appl No. 4927- Kace LI Inc. } 40.- -1 at Greenport 1000-40-3-1, now or formerly referred to as "Northwind Village" site. The property is zoned Hamlet Density (HD). WHEREAS, the following sections of the code are pertinent to this request: 1. Article IV Section 100-42A. In the HD District, no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part, for any use except the following: A. Permitted uses. (1) One-family detached dwelling (2) Two-family dwelling (3) Continuing care facility and life care community 2. Bulk Schedule - Density and Minimum Lot Size for Residential Districts Minimum lot size 2-family dwelling with community water and sewer Hamlet Density 20,000 sq. ft. 3. Section 100-13 Definitions of the Zoning Code: Dwelling, Two-family - A detached building containing two (2) dwelling units only. WHEREAS, the board has further carefully considered the following evidence and testimony: 1. In the case in question the applicant has a 17-acre lot. The applicant wants to construct more than one "two-family dwelling" on the 17-acre lot. The property has access to both community water and sewer. The minimum lot size for one two-family dwelling in the HD zoning district is 20,000 square feet with both community water and sewer. 2. The question presented to the board is under this fact pattern, can the applicant construct more than one "two-family dwelling" on the 17-acre lot in the HD District pursuant to section 100-42A 2. The applicant maintains the answer is yes. 3. The applicant's reasons are set forth in both oral and written argument in the record. The applicant's basic argument is one of "area" versus "lot." Applicant maintains that the Town Code's bulk schedule states that a two-family dwelling with community water and sewer requires 20,000 square feet. Since 20,000 can be divided many times into a 17-acre lot, applicant contends that there is more than enough "area" to construct more than one two- family dwelling. ;�- y Page 3—June 6, 2002 -7 Appl No. 4927- Kace LI Inc. Ai40.-3-1 at Greenport 4. Applicant further contends that in the Town Code's other residential districts, there is limiting language which states, "one-family dwelling, not to exceed one dwelling per lot." In contrast, applicant argues that there is no such limiting language in the 100-42A.2 of the Hamlet Density District that restricts the number of two-family dwellings that can be built on one lot. 5. The board disagrees. The fatal flaw in the applicant's "area" argument is that the Bulk Schedule speaks of a minimum lot size, not of a minimum area. It is undisputed that the 17- acre lot satisfies the minimum lot size for a two-family dwelling under the bulk schedule. But in order to construct more than one two-family dwelling on this land, the applicant would first have to subdivide the 17-acre lot into many lots, each lot with a minimum lot size of 20,000 square feet, and then obtain site plan approval pursuant to section 100-250 for each lot in order to place a two-family dwelling on each of the newly created lot. 6. The board also discounts the applicant's argument that 100-42A.2 contains no limiting language as to the number of two-family dwellings per lot. The board notes that one of the other permitted uses in the HD Zoning District under 100-42A.1 is "one-family detached dwelling." Assuming the applicant's argument of substituting the word "area" for lot and "no limiting language", many one-family dwellings could be built on the 17 area lot. This is simply not the law or the long standing practice pursuant to the Southold Town Code. More than one- family dwelling per lot is not permitted. Again, to build many one-family dwellings on the 17- acre lot, the ,applicant would first have to subdivide the land into smaller lots. Once the subdivision has been completed the applicant could then build a one-family dwelling on each one of the newly created lots pursuant to section 100-42A.1. Based on the above clear language of the Town Code sections, the board finds that the Building Inspector's Notice of Disapproval was properly issued. NOW, on motion by Member Oliva, seconded by Member Orlando, BE IT RESOLVED, that the Board of Appeal Interprets Article IV, Section 100-42A(2) to mean that only one two-family dwelling is permitted per lot; BE IT FURTHER RESOLVED to Deny the applicant's request to reverse the Building Department's determination, which is hereby upheld and confirmed. --Vote of the Board: Ayes: Members Go hrfirg—r (Chairm. n), •rtora, • a, and Orlando. REC E F tlr �� i s Rigid was sent.) This Re • utio' was duly •• e• 4-0). TOwN CLERK DAM,,, CP It °(O� ! _ • U7 Ge( .édP. '-•ehringer, ' airma Town Clerk, Town o: .ci FORM NO. 3 TOWN OF SOUTHOLD 5003 BUILDING DEPARTMENT SOUTHOLD, N.Y. AMENDED NOTICE OF DISAPPROVAL DATE; August 13, 2001 TO Kace L.I. LLC C/o Kontokosta 43 W. 54th Street New York N.Y. 10019 Please take notice that your amended application dated August 10, 2001 For permit for Multiple, two family dwellings at Location of property North Road(CR48) Greenport County Tax Map No. 1000 - Section 40 Block 3 Lot 1 Subdivision Filed Map# Lot# Is returned herewith and disapproved on the following grounds propos dwellings not permitted pursuant to Article IV Section 100-42A.2 which states; In the HD District, no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part, for any use except the following: A. Permitted uses. (2) Two-family dwelling. Proposed project indicates several ( exact amount unknown) two family dwellings on a single parcel. Code allows only one such structure per lot as a permitted use. Authoriz ignature - i 723f� [ ft VDALi - Assigned No. 500 $b "For r5fti�ce Use Only: Fee,$ Jet?. T4WN OF SOUTHOLD NEW YORK APPEAL FROM DECISION OF BUILDING INSPECTOR i 9 ��_ (ii"1 r2®p 1 DATE OF BUILDING INSPECTOR'S DECISION APPEALED. . ..1�•- TO THE ZONING BOARD Of At PEALS: I (We) K 6 L 1-1- - ' •-... """" � f (Appellant t�elf2r-'�`( �c�r•-��4 " /zs ast llc11714 frit HEREBY APPEAL THE DECISION OF THE BUILDING INSPECTOR ,D TED w. r ,a2D,D/' WHEREBY THE BUILDING INSPECTOR DENIED AN APPLICATION DATEDt�4't......,,.:'?e 'R• (X) ;Permit to Build RECEIVED ( ) Permit for Occupancy ( ) Permit to Use WO 2 9 2001 ( ) Permit for As-Built i i ( ) Other. suurrro+C naw.* Oa* j ,/� f CNA° Pc:C. • 1. Lotation of Property s//s elf �®,'� • ? O � ' c Zone ff.':17 District 1000 SectIon...'.F.Q.—Block s Lot(s) / Current Owner .KtWf••/4- 44C 2. Provision ofthe Zoning Ordinance Appealed. (Indicate Article,Aection, Subsection and paragraph of Zoning Ordnance by numbers Do not quote the law.) Article Section 100- Sub-Section ............. " uc,Srbns ,,2- 3. Type of Appeal. Appeal is made herewith,for: t Jee actucAfnent ( ) A Variance to the Zoning Ordinance or Zoning Map ( )A Variance due to lack of access as required by New York Town Law Chap. 62, Cons. Laws Art.16, Section 280•A. ( ) Interpretation'of Article Section 100- ( ) Reversal or Other 4. Previous Appeal. A previous appeal (has , has noti been made with respect to this property or with respect to this decision of the Builalny inspector (Ap,eal ��/tYeard(Pt.). REASONS FOR APPEAL (Additional sheets may used with applicant's signature): AREA VARIANCE REASONS: IyA (1) An undesirable change will not be produced in the CHARACTER of the neighbothood or a detriment to nearby properties,if granted, because: (2) The benefit sought by the applicant CANNOT be achieved by some method feasible for the applicant to pursue, other than an area variance, because: (3) The amount of relief requested is not substantial because: (4) The variance will NOT have an adverse effect or impact on the physical or environmentai conditions in the neighborhood or district because: (5) Has the alleged difficulty been self-created? ( ) Yes, or ( ) No. This is the MINIMUM that is necessary and adequate, and at the same time preserve and protect the character of the neighborhood and the health, safety, and welfare of the community. ( )Check this box if USE VARIANCE STANDARDS are ..r . eted,•nd efeZi. Sworn to before we this .2.3.E , (Signature of Appj sl =1 • • Authorized Agent) da o `f. - 06/."`` �� (Agent must submit Authorization from Owner) `— Note. A ZBA App 08100 NotState ofI_ Notary Public, New YoAr No.O1HAS059984 Qualified in Suffolk County Commission Expires May 06 oo7 D ; Attachment to KACE LI,LLC's application The Southold Town Planning Board approved the site plan on July 11, 1983 (a copy of a letter from Planning Board Chairman Henry Raynor, dated July 14, 1983, confirming this is enclosed for easy reference). Southold Town Code §100-255(B)states: All site plans which have received final approval prior to the enactment of this Article shall remain valid for a period of three years from the date of such enactment. This period will begin when all governmental approvals have been obtained. (Emphasis supplied) Since the Suffolk County Water Authority has not yet issued its approval,this period has not yet commenced: F:\Data\CLIENTS\KONTOKOS1Kace\Correspondence\application.rev.wpd PACHMAN & P:AOFIMAN, P.G. • ATTORNEYS 366 VETERANS MEMORIAL HIGHWAY COMMACK. NEW YORK 11725 (6311 543-2200 TELEGOPIER (631) 543-2271 COUNSEL HOWARD E. RACHMAN HARVEY B.SESUNDER MATTHEW E. RACHMAN August 17, 200 ,n , „z, I Abe Gerard P. Goehringer, Chairman ' s' Board of Zoning Appeals Town of Southold, Town Hall " 53095 Main Street � 4 - ` P.O.Box 1179 Southold,New York 11971 Re: Kace LI, LLC Request for Interpretation Dear Mr. Goehringer: The following is in response to your letter dated August 13,2001,wherein you request a description of the above-referenced application. I enclose a letter from the Town of Southold Building Department, dated August 13,2001,to Kace LI,LLC(Kace), stating that its application for a building permit was denied because of a purported conflict with Southold Town Code Section 100-42A. As you are aware, the Planning Board approved the site plan on July 11, 1983. You will recall that Southold Town Code §100-255(B) states: All site plans which have received final approval prior to the enactment of this Article shall remain valid for a period of three years from the date of such enactment. This period will begin when all governmental approvals have been obtained. (emphasis supplied) Since the Suffolk County Water Authority has not yet issued its approval, this period has not yet commenced. Thus, the applicant believes that the building official's denial must be reversed given the existence of the valid site plan: Page 2 Gerard P. Goehringer, Chairman August 17, 2001 I trust the foregoing is responsive to your inquiry. Very truly yours, wj MATTHEW E. PACHMAN MEP\jlw enclosures cc: Kace LI,LLC w/out encs. F:\DaW\CLIENTS\KONTOKOS\Kace\Correspondence\Goal-Inger.lfr3:wpd .., . a d<ta.-,4&441a4iliriktafemaAi T APPEALS BOARD MEMBERS ��� �� //' � C_ SG ,� Southold Town Halll. �' �p� Gerard P. Goehringer, Chairman 53095 Main Road � � y James Dinizio,Jr. d c P.O.Box 1179 Lydia A.Tortora2` Southold,New York 11971-0959 Lora S. Collins ZBA Fax(631)765-9064 George Horning c'h0 ,.fr,�' Telephone(631)765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD TOWN MEMORANDUM TO: Edward Forrester FROM: Jerry Goehringer, ZBA Chairman DATE: September 17, 2001 SUBJECT: Appeal No. 5003 —Kace LI, Inc. Notice of Disapproval dated August 13, 2001 Information relative to the above with your attendance would be appreciated at the ZBA hearing advertised for 8:45 p.m.on Thursday, September 20, 2001. Thank you. —,_ I s 3.;',,,,:44','., Ar4S> jSS. � STATE OF NEW YORK) K) NOVEMSR.R1S 2001 NGTiCE IS HEREBY GIU�N �$$; b iti'suant te`Seebee 10 of the Town - COU OF SUFF L °I.aw and ChaPter 100 (7mmtigl ,j Caw stf the Town of Southold the � /� /)zzcIi of Mattituek, in said cf`�.n8 ap,Piicatrons writ be bee ,, IF? ec hes nga"b s wilt b county, being duly sworn, says that he/she is Principal D Towes Rr�ptliei clerk of THE SUFFOLK TIMES,a wee at the Town x�,-s�ovs - WY newspaper,pub- `,'Iw;18'fih."e.he southo9d, New Yarx lished at Mattitucic, int the Town:of Southold, County of , 71;,on TRURSDAY, N©ZIEM '1s, 2001, aK Ore times.notes Suffolk and.„,$tate of New York,and that the Notice of which below(or as sgou the 'a r.9 the annexis a printed copy, has been regularly pub- ); p.m.Csirryofear-hanng:mthe r� lished in said Newspaper once each week Matter of Appl. Nb ;4A27 gi r>T;fNC ThesrsanAQpeatillltie�" for ( weeks successively commencing IZ<pyers4of tie blit g ed al1fdr' �� � prauai sated Aub et on ,/ the day Y�, 3 which drsapproval de nit Of. ��r7�jf(�L.. /.. application for building 't • � two-tamuy dwel9mgs "re vis I';{Section 900-42A2,,..fle,.. �4n stated M the Nptaee of df2----princl PPI teat the �rop@s1a palClerkgest.Weas saveral «, ys Ydlseiaggt`e,6azca1 a lit; vran�ydne s�u�a Sworn to before me this s �,,EiF1Aat*as a PenuBrtted ns1.7.,,one as b€ P so F day of Nutt' 20 0 1 rlro"f4f°dri9 reflrebi •Nor 'fi1. �" DAVIb W.OLSEN -Village ute)„ 50(9+ feet : . alo3 „ _ _plotary.Publ. State of New York ; t Lane' Ggeenpor. xC "(/' a¢e a rs 3-1 I. 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A3t'icte -i 1,'iva ' el i�r r"" @dy. Artiel V a ¢a e� ' x a ore` used dn'tht ` in I �,� �v S '� x. sac --Septet,'" 2 +..., ft- 7 sh frii a -7", -j' ^, en T1raatt�top "". - I St f�.,'��^n>"r s ' . or than 5�'. pfr o, .`" , I e�tesrdrmestrrniig.•t4" i.�u�.s�ate= FORM NO. 3 TOWN OF SOUTHOLD BUILDING DEPARTMENT SOUTHOLD,N.Y. AMENDED NOTICE OF DISAPPROVAL DAI'h; July 30, 2001 TO Kace L.I:LLC C/o Kontokosta 43 W. 54th Street New York N.Y. 10019 Please take notice that your application dated November 16, 2000 For permit for Multiple dwellings at Location of property North Road(CR48) Greenport County Tax Map No. 1000 Section 40 Block 3 Lot 1 Subdivision Filed Map# Lot# Is returned herewith and disapproved on the following grounds proposed multiple dwellings not permitted pursuant to Article IV Section 100-42B.1 which states; Uses permitted by special exception by the Board of Appeals. The following uses are permitted as a special exception by the Board of Appeals; as hereinafter provided, and subject to site plan approval by the Planning Board: (1) Multiple dwellings, townhouses,row or attached houses. • Proposed project does not have valid special exception from the Zoning Board of Appeals. • Proposedproject does not have a valid site plan approval from the Planning Board. Note; Above determination based on limited documentation submitted,may require other approvals pending further review. pes,„/ Ja.note Auth. --• Signature FORM NO. 3 TOWN OF SOUTHOLD BUILDING DEPARTMENT SOUTHOLD, N.Y. NOTICE OF DISAPPROVAL DATE; December 6,2000 TO Kace L.I. LLC C/a Kontokosta 43 W. 54Th Street New York N.Y.10019 Please take notice that your application dated November 16, 2000 For permit for Multiple dwellings at Location of property North Road (CR48)Greenport County Tax Map No. 1000 - Section 40 Block 3 Lot 1 Subdivision Filed Map # Lot# Is returned herewith and disapproved on the following grounds proposed multiple dwellings not permitted pursuant to Article W Section 100-42B.1 which states; Uses permitted by special exception by the Board of Appeals. The following uses are permitted as a special exception by the Board of Appeals, as hereinafter provided, and subject to site plan approval by the Planning Board: (1) Multiple dwellings, townhouses,row or attached houses. Proposed project does not have valid Special Exception from the Zoning Board of Appeals. Authorized Si ture f - BOARD OF HEALTH I' FORM NO. I 3 SETS OF PLANS • Ixy ! I TOWN OF. SOUTDOLD SURVEY BUILDING DEPARTMENT CHECK TOWN HALL SEPTIC FORM p- .. SOUTHOLD, N.Y. 11971 DEC TEL: 765-1802 TRUSTEES • NOTIFY: CALL Examined Y9.... MAIL TO- Approved , .... Permit No. ... .. Disapproved,a/c (Building Inspector) APPLICATION FOR BUILDING PERMIT November 16 2000 Date 2G. . . . INSTRUCTIONS a. This application mist be cmpletely filled in by typewriter or in ink and submitted to the Building Inspector 3 sets of plans, accurate plot plan to scale. Fee according to schedule. b. Plot plan showing location of lot and of buildings on premises, relationship to adjoining premises or public streets or areas, and giving a detailed description of layout of property mist be dram on the diagram which is part of this application. c. The work covered by this application may not be-commenced before issuance of Building Permit. d. Upon approval of this application, the Building Inspector will issue a Building Permit to the applicant. Suck permit shall be kept on the premises available for inspection throughout the work. e. No building shall be occupied or used in whole or in part for any purpose whatever until a Certificate of Occupancy shall have been granted by the Building Inspector. APPLICATION IS MEW ME to the Building Department for the issuance of a Building Permit pursuant to the Building Zooe Ordinance of the Town of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations, for the construction of buildings, additions or alterations, or for removal or demolition, as herein described. The applicant agrees to comply with all applicable laws, ordinances, building rode, housing code, and regulations, and to admit authorized inspectors on premises and in building for necessary inspections. KACE DEVELOPMENT CORP' (Signature of applicant, or nate, if a corporation) CJ.O..C...XontnkASIa (Mailing address of applicant) 43 West 54th Street , NYC 10019 State whether applicant is caner, lessee, agent, architect, engineer, general contractor, electrician, plumber or buil( General Contractor Nene of owner of premises KACE LI LLC (as on the tax roll or latest deed) If applicant is a corporation, signature of duly authorized officer. Thisermit Application is (Name and title of corporate officer) � for surr,niNG No in Norizciwind Village Builders License Pb. / Plumbers License.No. Electricians License lb. Other Trade's License lb. Northwind Village - Approved Site Plan I. Location of land on cirich proposed work will be done North Road Greenport House'Nuaber Street Uamlet Canty Tine Map No. 1000 Section 040 Block 3 tat 1 Subdivision r :...... Filed Map lb. lot (Nate) 2. State existing use and occupancy of premises and intended use and occupancy of proposed construction: a. Existing use and occupancyVACANT LAND b. mtadedaeeand om>paxy Multi-family use as per approved site plan $l3ILi)ING wins • ......• .uteration . u„ r+ i}at Demolition Other Work (Description) 4. Estimated Cost $240,000 fee (to be paid on filing this application) four (4) two and 1 /2 of 5. if dwelling, meter of dwelling units Huber of dwelling units on each floor t 14) four, garages two If garage, nnber of cars .. 6. If business, cca ercial or mixed occupancy, specify nature and extent of each type of use 7. Dirensians of existingstructures, if any: Front Rear Depth. Height . Limber of Stories - Dimensions of safe structure with alterations or additions: Front Rear Depth Height, "timber of Stories 8. Dimensions of entire new construction: Front 92 ' -8m Rear 921 -8" Depth 551 -60 height 18 ' _6" W berof Stories ...l:attic , 2+attic 9. Size of lot: Front 745. 88 Rear variesDepth var 1214 ft 10. Date of Purchase 1982 Name of Fortier owner smith , s a n z o n e 1 I. Zone or use district in which premises are situated M (Old Zoning Resolution) 12. Does proposed construction violate any zoning maw, ordinance or regulation: N o 13. Will lot be traded Yes Will excess fill be removed faun premises: XX YES to KACE LI LLC 43 W . 54th St 212-582 , 14. Names of owner of premises Address Phone No, Kontokosta Assoc . 43 W . 54th St 21 �Q Nara of Architect Address Plane No, ..6.1 60.. ' Name of Contractor KACE Development ' Address PO Box 67 . Greenport Auone 1 b516._477 •2323 • 15. Is this property within 300 feet of a tidal wetland? * YES ND x xx x x x *IF YES, sjmTiun Erea; Tea s= EMIT MAT BE recur ED. • PLOT DIAGRAM 'locate clearly and distinctly all buildings, whether existing or proposed, and indicate all set-back dimensions fain property lines. Give street and block number or description according to deed, and show street nares and indicate w ' whether interior or corner lot. SEE NORTHAIIND VILLAGEAPPROVEDSITE, PLAN July 11 , 1983 • • • TALE OF MU YORK, OUN1T OC Suffolk SS C . E . Kontokosta for KACE Development Corp being duly_swocn,,deposes and says that he is the applicant Nate of individual signing contract) bove named, agent for the contractor e is the (Contractor, agent, corporate officer, etc.) f said arner or owners, nix! is duly aulhorizecl to perform or have performed the said work and to make and file this pplication; that all staterents contained in this application are true Co the best of his knowledge and belief; and hat the work will be performed in the manner set forth in the application filed therewith. :rorn to before tie this �� day oated:'J a. 20GEo .40 7 - Notary Public .. :..... ?•c� ' EMILY HAMILL re of A ' ican Notary No.01 HAtate of New York f� Pre s 84 Qualified in Suffolk County U Commission Expires May 06 -e-- T :TOWNOF SOV OLD kw-1G PERMIT APPLICATION CHECK BUILDING DEPART112EN2 o you have or aced following,before app] TOWN HALL Board of-Health SOUTHOLD,NY 11971 3 sets ofBuildingPlans TEL: 765-1802 Survey PERMIT NO. Check Septic Form NYSDEG 129511' 76-0 Trustees Fxamined ,20 Contact: Approved } .20 9 2210 4.77 D.47 Mail to: Disapproved ale 3713/b/7 - ! l Phone: -' ( Yi e i Building Inspector } APPLICATION FOR BUILDING PERMIT, Date lit) /( ,20o 1 a INSTRUCTIONS , a. This application MUST be completely filled in by typewriter or mink and submitted to the Building Inspector wit! sets of plaps,accurate plot plan to scale.Fee according.to schedule. b.Plot plan showing location of lot and of buildings on premises,relationship to adjoining premises or public streets areas, and waterways. c.The work covered by this application may not be commenced before issuance ofBuiiding Penult. d.Upon approval of this application,the Building Inspector will issue a Building Permit tox ie applicant Such a pen shad be kept on the premises available for inspection throughout the work. e.No building fiholl be occupied or used in whole or in part for any purpose what-so-ever until a Certificate of°coup; is issued by the Building Inspector, APPLICATION IS HEREBY MADE to the Building Department for the issuance of a Building Permit pursuant to the Building Zone Ordinance of the Town of Southold,Suffolk County,New Yorlc,and other applicable Laws,Ordinances or Regulations;for the construction of buildings,additions,or alterations or for removal or demolition as herein described.The applimmt agrees to comply with all applicable laws,ordinances,building code,horsing code,and regulations,and to admit authorized inspectors on premises and in building for necessary inspections: CES , LLC. (Sigaaturo of applicant or name,if a corporation) ,nrrp,co5 ffl 43 14-)ff57- 54 5t, eiYC fovrq (Mailing address of applicant) State whether applicant is owner,lessee, agent, architect, engineer,general contractor, electrician,plumber or builder %i 6eifilgaj Name of owner of premises /i9CE. L , f 2.6C (as on the tax roll or latest deed) If applicant is a corporation,- signature of duly authorized officer ,/274Tom1,y`��on/7-v,fwd`J,4 (Name and title of corporate officer) Builders License No. • Plumbers License No. Electricians License No. Other Trade's License No. 1. Location of land on whichroposed work will be done: ! S o inn' /ED 447 SlorOF /2,P7G /19h'5 House Number Street Hamlet County Tax Map No. 1000 Section et(2 Block ,; Lot;. . Subdivision --- Piled Map No. t,'. Lot (Name) • ;4 State existingand occupancy ontkes and intended use and occupatunfproposedconstruction: a. Existing usevaadoccupancy Caa.nIr ,r-/z b. .Intended use and occupancy 2-24,-/sac-)/A1 Narnre of work(check which applicable):New Building Addition Alteration Repair Removal Demolition Other Work (Description) Estimated Cost. /25, Ona/G/e'e r. Fee (to be paid on filing this application) If dwelling,number of dwelling units vwrzr Number of dwelling units on each floor Z If garage, number of cars 2 If business, commercial or mixed occupancy, specify nature and extent of each type of use. Dimensions of existing structures,if any: Front Rear Depth Height Number of Stories Dimensions of same structure with alterations or additions: Front Rear Depth Height Number of Stories • Dimensions of entire new construction:Front Rear Depth Height -ct r- Number of Stones 77,cJo • Size of lot Front / 7 Awe Rear Depth /ppcdr& IC/9h, 0.Date of Purchase Name of Fortner Owner 1.Zone or use district in which premises are situated =%S1i/ 2.Does proposed construction violate any zoning law,ordinance or regulation: . -C-" /ppei 7/018 3. Will lot be re-graded 7L Will excess fill be removed from premises: NO 49 1,Je5 ,54,57- 4,Names of Owner of premises 711-1c 2.4 Zte Address r/Ye-j iocyr9 Phone No. 212-58e6160 Name of Architect , ;Afilicivrofecios na Address L3 /if 5c( St Phone No 1 z-529e-Z100 Name of Contractor Address / /C J /to/7 Phone No. 5.Is thisproperty within.100 feet of a tidal wetland? *YES NO • IF YES, SOUTHOLD TOWN TRUSTEES PERIYIITS MA REQUIRED 6. Provide survey,to scale,with accurate foundation plan and distances to property lines. Sa nirgovcL 7. If elevation at any point on property is at 10 feet or below,must provide topographical data on survey, '6Aaz TATE OF NEW YORK) SS: :OUNTY OF.5Uff&- pC714 /d ro/CO S 7 being duly sworn,deposes and says that(s)he is the applicant (Name of individual signing contract)above named, S)He is the fes, fv,/3cx2 (Contractor,Agent,Corporate Officer,etc.) f said owner or owners,and is duly authorized to perform or have performed the said work and to make and file this application tat all statements contained in this application are true to the best of his knowledge and belie and that the work will be erfonned in the manner set forth in the application filed therewith worn to before me this . /i day of/i9a%5/ 200 —� Notary Puh c Signature of s . .i EMILY HAMILL Notary Public,State of New Ye* No.01 HA5059984 Qualified in Suffolk Coug ., Commission Expires May 0604w..,` 2'3r l APPEALS BOARD MEMBERS ,II•,O�OSVFfO(�►CO` Southold Town Hall Gerard P. Goehringer, Chairman �'� ; 53095 Main Road Lydia A. Tortora Z P.O. Box 1179 r*► Southold,New York 11971-0959 1.1;; George Horning Ruth D. Oliva .74' 0-01) ZBA Fax(631)765-9064 Vincent Orlando '701 * �►a,•'' Telephone(631)765-1809 .....�''� http://southoldtown.northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD June 7,2002 Matthew Pachman, Esq. Pachman & Pachman, P.C. 366 Veterans Memorial Highway Commack, NY 11725 Re: Appl. No. 5003—ZBA Determination (Kace LI, Inc.) Dear Mr. Pachman: Enclosed please find the Board's determination rendered June 6, 2002 under Appeal No. 5003,filed by Kace LI,LLC. During the step(s) of the building permit/zoning review process, it is recommended that you bring an extra copy of the ZBA determination to any other department having jurisdiction in this matter, together with maps or any other information that those departments may require. Thank you. Very truly yours, GERARD P. GOEHRINGER CHAIRMAN Enclosure �iiF `=- 1 I�/O0y`�FFO1�00 S • ELIZABETH A.NEVILLE to Town Hall, 53095 Main Road 1 TOWN CLERK p P.O. Box 1179 REGISTRAR OF VITAL STATISTICS v- 4 Southold, New York 11971 MARRIAGE OFFICER Oy �1� Fax(516) 765-1823 RECORDS MANAGEMENT OFFICER �0 • 0� i�� Telephone (516) 765-1800 - FREEDOM OF INFORMATION OFFICER ��� OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD APPLICATION FOR PUBLIC ACCESS TO RECORDS INSTRUCTIONS: Please complete Section I of this form and give to Town Clerk's Office (agency Freedom of Information Officer) . One copy will be returned to you in response to your request, or as an interim response. SECTION I. TO: Zl3 A (Department or Officer, if known, that has the information you are requesting.) RECORD YOU WISH TO INSPECT: (Describe the record sought. If possible, supply date, file title, tax map number, and any other pertinent information. ) Signature of Applicant: ,...1)L �`Lr - - Printed -Printed Name: C leo-PH y 19 you A/6 Address: I5 /V©(QT-f-/ Iaor?;) / G feuu-et ' o 6! / 4 Mailing Address (if different from above) : C' i- C7C '5 cr2_L'Z-'z✓eax 7 /l'// ' Telephone Number: 31 4?-3- % 52T2. Date: `r x I APPROVED /710 .d-FY1 4 , `` , / Q,�, -ek [ I APPROVED WITH DELAY* J tD NIED* ' I 9/2,070 � /1 61.3/00 ... p6 I3/oo - ISP 4-4--e-74-4--e-7. Elizabeth A. Neville Date Freedom of Information Officer * If delayed or denied see reverse side for explanation. ,,,,,ice..,. APPEALS BOARD MEMBERS ,��� SVFFOL4 '�i"40 Co t Southold Town Hall Gerard P. Goehringer, Chairman � d: 53095 Main Road Lydia A.Tortora H Z P.O. Box 1179 George Horning ",b156. .s• Southold,New York 11971-0959 �$ Ruth D. Oliva ZBA Fax(631)765-9064 . T' ! � Vincent Orlando =_'91 * �►�,,.6 Telephone(631)765-1809 .....•''� http://southoldtown.northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD June 10,2002 Anthony B. Tohill,P.C. 12 First St. Box 1330 Riverhead,NY 11901 Re: Appl. No. 5003—ZBA Determination(Kace LI,Inc.) Dear Mr. Tohill: Enclosed please find the Board's determination rendered June 6, 2002 under Appeal No. 5003,filed by Kace LI, LLC. Very truly yours, GERARD P. GOEHRINGER CHAIRMAN Enclosure .ANTHONY B. TOHILL, P.G. ATTORNEYS AT LAW 12 FIRST STREET P.O. BOX 1330 ANTHONY B.TOHILL TELEPHONE: RIVERHEAD, NEW YORK, 11901-0903 (631)727-8383 MICHAEL T.CLIFFORD OF COUNSEL TELEFAX: (631)727-6336 April 15, 2002 Linda Kowalski Zoning Board of Appeals 53095 Main Road Southold, NY 11971 Re: Kace LI, LLC Dear Linda: Enclosed herewith please find a pre-addressed, postage paid envelope. Could I ask that you forward to me a copy of the decision with respect the captioned matter as soon as available. Thank you. Very truly yours, Anthony B. Tohill ABT/bb Enclosure eirvi /12_,Artio- ft+ flin!--414 ANTHONY B. TOHILL, P.C. ATTORNEYS AT LAW 12 First street F.O. Box 1330 631 127•-8381 Riverhead, New York 11901-0903 r11Y. 631-'127, 6336 June 7, 2002 VIA FAX 765 9064 Linda KowalMki zoning Boa ra of Appeals 53095 Main Road Southold, NY 11971 Rt.:: Race LI , LLC Dear Linda : When a copy of the Kace LI, LLC decision is prepared could I please receive a copy. Many thanks. Very truly yours, Anthony B. Tohill ABT/bb ZO ' d vOS : 60 ZO-LO-ung• --- L.:::.:-.‘:Sint Date Sent Initials 1 ANTHONY B. TOHILL, P.C. ATTORNEYS AT LAW 12 First Street P.O. Box 1330 611 71)7. 8t1t1 Riverhead, New York 11901-0903 PAX 631-727-6336 TELEFAX TRANSMITTAL SHEET TO : Linda Kowalski FAX NO. : 765-9064 FROM: ANTHONY B . TOHILL, P.C. Fax Number : 631-727-6336 NUMBER OF PAGES, INCLUDING THIS PAGE: 2 DATE: June 7, 2002 RE: Kace LI, LLC ATTACHMENTS : Letter .'OMMENTS : THIS CUMMUNICA'1 LC'N MAY CONTAIN INFORMATION WHTCH 1S CONFIDENTIAL AND/OR PROTRC:'r(L BY THE ATTORNEY-CLIENT OR O)TH101 AJ:'1r'LLC'AL'LE PRIVTT,EGE. 1'1' is INTENDED FOR 1tBCEIL'T ANn !ME SOLELY FY THE LNUIVIDUAA(s) NAMED AROVR. TF YOU AVE NUT THE INTENDED RFcIPLENT, OR THE EMPLOYEE OR AGENT RI;SPONSTfT,E FOR UELIVERTNC; THIS COMMUN 1CATTON TO riu. INTENDED RECTPTRNT, YOU ARE HEREBY NOTIFIED THAT ANY L),Jit"'OS'TRE, DISTRIBUTION OR COWINr, OP T11I:i .)UC'UMENT IS STRICTLY PROHIBITED, TF YOU HAVE RECEIV)::1) 'rHI9 COMMUNICATION TN ERROR, PLEAS? NOTTFY II:i MMEULA'1ELY BY TEI,rPH()NE ANU RETURN T1ir ORIGINAL DOCUMENT TO US AT THE ABOVE AI)nRE:;S VIA THE U ti. POSTAI. SERVICE. THANK YO11. bb tO ' d V6V : 60 zO—LO—un0 PAGHMAN & PAGHMAN, P.G ATTORNEYS 366 VETERANS MEMORIAL HIGHWAY COMMACK. NEW YORK 11725 (631) 543-2200 TELEGOPIER (631) 543-2271 �t° HOWARD E PACHMAN f)\( 13( V` MATTHEW E. PACHMAN /'UU Q p� COUNSEL V J.DAVID ELDRIDGE HARVEY B. BESUNDER DEBORAH M RAYNOR JOSHUA M PRUZANSI{Y March 22, 2002 VIA FACSIMILE AND REGULAR MAIL: 765-9064 Zoning Board of Appeals 53095 Main Road Southold,NY 11971 RE: Matter of the Application of Kace LI, LLC Dear Chairman arid Members: - , As you are aware,my_ firm represents,Kace LI;-LLC(Kace),with respect'to`the above-noted matter. I have had an'opportunity'to'review the'obj ectant neighbors':"supplemental'memorandum in opposition" received via facsimile transmission at approximately 4:00 p.m. on Friday,March 15th. The Board will recall that this"eleventh hour"filing is precisely what I predicted would occur when at the close of the February 28th meeting,Mr.Tohill asked for time to reply in writing to that night's presentation. Notwithstanding this, I would simply note that the memorandum provides no new insight. Instead,it Continues to attempt-to'cloud the issue"by inserting questions of the validity of the 1983 site plan. 'As the Board is aware;=•the limited, narrow and focused issue presently before the ZBA is whether the Notice of Disapproval,based solely on the use of the buildings as two-family dwellings, should be overturned. Any other issue, such as the validity of the 1983 site plan, is beyond the scope of this application and, at this time,beyond the ZBA's jurisdiction. For consideration in your deliberations,I include a copy of a decision in Miller v.Price(New York Law Journal,Nov.6,2000).•In that case,Justice Berler,interpreting the Southold Town Code,noted that: Plaintiffs' citation'to the "Trustee-land exception" in the separate chapter on Wetlands regulations [Chapter 97 of the Southold Town - • Code], is inaccurate because`that-exception;'by its very terms, is limited to the Wetlands. The lack of a corresponding exception in • Chapter 100 Ofthe Zoning Code means that no such exception can be • Page 2 Zoning Board of Appeals March 22, 2002 inferred in the Zoning Code. Had the Southold Town Board wished to exempt Trustee Lands from the purview of the Zoning Code, it would have provided for an exception similar to that contained in the Wetlands Ordinance. (emphasis added) This "statutory construction" is exactly analogous to the issue at hand. Thank you for your courtesies. Very truly yours, Matthew . Pachman MEP/blb enclosure cc: Anthony B. Tohill, Esq. w/enc. via facsimile and regular mail F\Data\CLIENTS\KONTOKOS\Kace\ZBA\ZBA Itr.wpd Page 1 Citation Search Result Rank 1 of 20 Database 11/6/2000 NYLJ 35, (col. NYLJ 11/6/2000 N.Y.L. J. 35, (col . 5) New York Law Journal Volume 224, Number 88 Copr. 2000 NLP IP Company Monday, November 6, 2000 Court Decisions Second Judicial Department Supreme Court Suffolk County Justice Berler MILLER V. PRICE' QDS : 82703450 It is Ordered that this motion by Intervenors-Defendants for an order granting them summary judgment is granted in all respects and the complaint herein is hereby dismissed as to them; and it is further Ordered that the cross motion by plaintiffs for an order granting them summary judgment is denied. As stated in the pleadings and in prior motions affecting the subject of this litigation, plaintiffs claim to own waterfront property located at 1610 Paradise Point Road, Southold, New York. In July 1997, plaintiffs purchased a large sculpture of a heron bird, which they refer to as a "Heron Monument" and which Intervenors refer to as a Heron Structure. Said structure is approximately forty (40) feet tall and is constructed of a network of welded steel plates and structural steel bars constituting the sculpture, placed atop a specially constructed platform. At all times relevant to the events in this case, Town of Southold Zoning Code (Chapter_ 100) , §100-33 (A) , prohibited the erection of accessory structures taller than eighteen (18) feet . Plaintiffs sought permits from some, but not all, governmental authorities to place the Heron Structure on the beach of their property. At first, they received a permit from the Southold Town Trustees to place the project seaward of the mean high water line. The approval noted that it "should not be considered a determination made for any other Department or Agency" and the permit was- specifically conditioned upon plaintiffs "obtain [ing] all other permits and consents that may be required supplemental to this permit . . . " The United States Department of the Army Corps of Engineers, New York District, recommended, and the New York State Department of Environmental Conservation required, that Plaintiffs move the location of the structure landward of the mean high water line. When the Town Trustees approved the relocation, they again noted that such approval "does not constitute approval from any other agencies . " By letter dated November 24, 1997, Code Enforcement Officer of the Town of Southold, Edward Forrester, sent plaintiffs a letter informing them that the Installation of the Heron Structure would require a building permit . Thereafter, plaintiffs sought a building permit from the Building Department . On January 6, 1998, the Code Enforcement Officer sought an interpretation from the Zoning Copyright © 2002 The New York Law Pub. Co. e � Page 2 11/6/2000 NYLJ 35, (col. Board of Appeals as to "whether a forty (40) foot sculpture is a building as defined in Southold Town Code §100-13" and, if so, whether the sculpture would be governed by the height limitation of §100-33 . The Zoning Board notified plaintiff and his agent of a public hearing on the interpretation. the Zoning Board held the hearing on February 26, 1998, and both plaintiff and his agent participated therein. On March 3, 1998, the Zoning Board issued its decision, in which it answered the first question as follows : A 40 ft . high sculpture is a building as defined in the Zoning Code -under Section 100-13 . The Zoning Board declined to answer the second question prior to being presented with the specific facts and specific building. The Zoning Board sent its decision to plaintiff' s attorney, but plaintiffs did not challenge the Zoning Board' s decision in Court, but, instead, withdrew their building permit application within one week of the decision. Plaintiffs ignored the Zoning Board' s interpretation and proceeded to construct the platform upon which the Heron Monument would be displayed. On March 26, 1998, the Town of Southold Building Inspector, Michael J. Verity, issued plaintiffs a "Stop Work Order" on the grounds that plaintiffs were "constructing an accessory structure without first obtaining a building permit . " ' Such Stop Work Orders are authorized by §100-283 of the Zoning Code. Plaintiffs did not avail themselves of the administrative remedy provided by the Southold Zoning Code. Under §100-271 (A) of the Code, the Zoning Board is empowered "to hear and decide appeals from and review any order, requirement, decision or determination made by the Building Inspector. " The Stop Work Order was filed with the Town Clerk on April 27 , 1998 . Plaintiffs neither complied with the Building Inspector' s Stop Work Order nor took an administrative appeal therefrom. Instead, plaintiffs completed the platform and placed the sculpture on the completed platform. On or about April 24, 1998, Building Inspector Michael J. Verity issued plaintiffs appearance tickets numbered 805 and 806 for, respectively, "constructing an accessory structure without first obtaining a building permit" and in violation of a Stop Work Order issued March 26, 1998, suspending all work at 1610 Paradise Point Road. " By Summons and Verified Complaint dated July 13, 1998, plaintiffs commenced this action against defendants . The complaint sets forth three causes of action as follows : (a) The first cause of action alleges that the plaintiffs lawfully placed their Heron Structure on the beach, and the Town of Southold and its building inspector had no jurisdiction over the sculpture and no authority to issue its Stop Work Order; (b) The second cause of action alleges that plaintiffs ' first amendment rights to freedom of speech and freedom of expression precludes defendants from regulating the "Heron Monument; " and (c) The third cause of action alleges that the Town Code definition of "building" and "structure" is unconstitutionally vague and overbroad. Based on these three causes of action, plaintiffs sought injunctive relief restraining the Town from enforcing its zoning code against plaintiffs and from exercising jurisdiction over the "Heron Monument, " along with a declaration that Copyright © 2002 The New York Law Pub. Co. Page 3 11/6/2000 NYLJ 35, (col . the provisions of the zoning code are unconstitutional. By Order of this Court dated October 21, 1998, (Berier, J. ) , the Court granted leave to Intervenors to intervene as defendants in this action pursuant to CPLR §1013 and said intervenors served their Verified Answer with Counterclaim on or about October 30, 1998 . Intervenors set forth a single counterclaim for an injunction. The counterclaim alleges that plaintiffs erected a 40 foot high (or higher) structure, which is illegal under the Town of Southold Zoning Code and which irreparably harms intervenors . The counterclaim seeks to enforce the Zoning Code through an injunction requiring plaintiffs to remove the offending structure. By Order to Show Cause with Temporary Restraining Order dated July 15, 1998, plaintiffs moved for a preliminary injunction and temporary restraining order prohibiting the Town from taking any measures, including civil or criminal proceedings, in connection with the erection and maintenance of the "Heron Monument. " Plaintiffs argued that there are a number of statutes, monuments, or ornamental structures located in the Town, none of which were cited or fined for failure to secure a permit . Plaintiffs also argued that their monument did not fall within the definition of "building" or "structure" under the Zoning Code and that the code was unconstitutionally vague and overbroad and infringed upon their right to freedom of expression. Finally, plaintiffs argued that, because the Town Trustees had jurisdiction to issue a permit, the Town of Southold Zoning Code is inapplicable. By Order of this Court dated December 17, 1998, (Berler, J. ) , this Court denied plaintiffs motion, concluding that based upon a legal interpretation of the Zoning Code, plaintiffs were not likely to succeed on the merits and were not entitled to an injunction. Specifically, the Court analyzed the Zoning Code, including the definition of "building" (§100-13) and the prohibition against accessory buildings taller than 18 feet (§100-33 [A] ) , and held that "this structure comes within the definition of a building. " Plaintiffs sought leave to re-argue this Court ' s Order, but, by Order dated April 20, 1999, (Berler, J. ) , the Court denied plaintiffs ' motion and held that, "the Court, in making its prior order, neither misconstrued any principle of law, nor did it misapprehend any of the pertinent facts as •presented to it. " Plaintiffs appealed this Court' s Order to the Appellate Division, Second Department, making substantially the same arguments as it did to this Court. The Appellate Division, by Order dated December 20, 1999, affirmed this Court' s denial of plaintiffs motion, citing two separate legal grounds for affirmance. First, the Appellate Division held that "plaintiffs ' failure to pursue their administrative remedies by a timely administrative appeal of the determination of the building inspector bars judicial intervention. " Second, the Appellate Division held that plaintiffs failed to establish entitlement to the drastic remedy of injunction relief, namely, that they failed to demonstrate " (1) a likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) that a balancing of equities favors the movant ' s position. " Because plaintiffs failed to exhaust their administrative remedies, the Stop Work Order is binding and bars judicial intervention. Southold Town Code § 100-271 (A) provided plaintiffs with an administrative remedy to challenge the Copyright © 2002 The New York Law Pub. Co. Page 4 11/6/2000 NYLJ 35, (col . Stop Work Order. Under the provision, the Zoning Board has the power "to hear and decide appeals from and review any order, requirement, decision or determination made by the building inspector. " Plaintiffs did not avail themselves of this administrative remedy. Having voluntarily rejected the building inspector' s authority and having foregone their administrative remedy, plaintiffs are barred from seeking judicial review of that order-or of the basis for that order-under the requirement that persons exhaust their administrative remedies before seeking judicial intervention. It is axiomatic that where the decision or order of a building inspector is subject to review by a zoning board of appeals, the failure to exhaust that administrative remedy precludes judicial review of the building inspector' s decision [See, Nautilus Landowners Corp. v. Harbor Comm' n, 232 A. D. 2d 418, 491, 648 N.Y. S. 2d 627 (2nd Dept . 1996) ; White v. Inc. Village of Plandome Manor, 190 A. D. 2d 854, 855, 593 N.Y. S . 2d 881, 882 (2nd Dept. 1993) ] . This rule applies to any judicial challenge to a building inspector' s determination, whether couched as a plenary action of Article 78 proceeding. [Rattner v. Planning Comm' n of Village of Pleasantville, 156 A. D. 2d 521, 526 - 527, 548 N.Y. S . 2d 943 (2nd Dept. 1989) ] . A "stop work order" issued by a building inspector is clearly an "order-, requirement, decision or determination made by the Building Inspector" such that plaintiffs could have brought an appeal to the Zoning Board. In Jordan' s Partner' s v. Goehringer, 204 A. D. 2d 453, 611 N.Y. S . 2d 626 (2nd Dept . 1994) , the Appellate Division, Second Department held that the Supreme Court could not review the propriety of a stop work order where the accused has not appealed the order to the zoning board of appeals, which has the primary jurisdiction of interpreting the applicable zoning ordinance. [See also, Knispel Construction Co. v. Missavage, 102 A. D. 2d 1007, 477 N.Y. S . 2d 883 (3rd Dept. 1984) (noting that petition challenging stop work order, brought without seeking review of the ZBA, was dismissed for failure to exhaust administrative remedies) ] . The most compelling authority is, of course, the Appellate Division' s order in Miller v. Price, 267 A. D. 2d 363, 700 N.Y. S . 2d 209 (2nd Dept . 1999) , wherein the Court held: Instead of appealing the stop-work order to the Zoning Board of Appeals of the Town of Southold, the plaintiffs commenced the instant action in the Supreme Court, the plaintiffs ' failure to pursue their administrative remedies by a timely administrative appeal of the determination of the building inspector bars judicial intervention [citations omitted] . While not technically "law of the case"-because it was made in the context of an application for a preliminary injunction-this completely on-point holding is binding precedent on this Court . The rule requiring plaintiffs to appeal the Stop Work Order to the Zoning Board is not merely a procedural technically that can be disregarded, but goes, instead, to the proper respective jurisdiction of zoning boards and courts . Under New York law, an interpretation of a zoning regulation, as that regulation applies to a specific parcel of property, should be made first by a zoning board of appeals . [See, Fishman v. Schmidt, 61 N.Y. 2d 823, 825, 473 N. Y. 2d 957 (1984) ] . Furthermore, a zoning board' s interpretation of its zoning code is entitled to judicial deference and should be upheld unless it is irrational or unreasonable, [Richard Dudyshyn Contracting Co. v. Zoning Bd. of Appeals of Town Copyright © 2002 The New York Law Pub. Co. Page 5 11/6/2000 NYLJ 35, (col. of Mt . Pleasant, 255 A. D. 2d 445, 446, 680 N. Y. S . 2d 571, 572 (2nd Dept . 1998) ] , even if a contrary interpretation is also rational. [Brock v. Zoning Bd. of Appeals of Town of Queensbury, 237 A. D. 2d 670, 671-72, 653 N .Y. S . 2d 988, 989 (3rd Dept . 1997) ] . Hence, because plaintiffs ' action involves the interpretation of the Zoning Code and Stop Work Order, such claims must first be presented to the Zoning Board before this Court ' s certiorari jurisdiction is invoked. Plaintiffs willfully chose not to accept the Town' s authority and not to appeal the Stop Work Order to the Zoning Board, thereby failing to exhaust their administrative remedies . Plaintiffs cannot circumvent the Zoning Board' s authority to, interpret the Southold Zoning Code. As a matter of law, this Court has no jurisdiction to question the validity of the Stop Work Order, and, consequently, plaintiffs ' complaint must be dismissed. In their cross-motion, plaintiffs contend that the subject "Heron Monument" is not within the regulated boundaries which coincide with the boundary of the Southold Town Zoning Map, or that area of the Town of Southold, regulated under its zoning ordinance and zoning map. Said contention is rejected and the cross motion denied. Contrary to plaintiffs ' suggestion that "the area upon which the Heron is situate is expressly exempt and excepted from the Southold Town Zoning Code or the Southold Town Code, " apparently because it is located in "tidal town waters . " Plaintiffs have failed to realize that the Zoning Code expressly includes such tidal lands in the contiguous zoning district : §100-22 District Boundaries . In determining the boundaries of districts shown on the Zoning Map, the following rules shall apply: * * * G. Unless shown on the Zoning Map, all tidal lands and lands under water shall be deemed to be within the use district to which they are contiguous . [Southold Town Code §100-22 (G) (emphasis supplied) ] . This provision is consistent with Southold Town Code §100-20, which divides the entire Town of Southold, with no exception other than property within the incorporated Village of Greenport, into the enumerated, categorized zoning districts . In other words, all Town lands-publicly or privately held, in or out of the water-fall within a zoning district and are governed by the Zoning Code. Plaintiffs ' citation to the "Trustee-land exception" in the separate chapter on Wetlands regulations [Chapter 97 of the Southold Town Code] , is inaccurate because that exception, by its very terms, is limited to the Wetlands . ,The lack of a corresponding exception in Chapter 100 of the Zoning Code means that no such exception can be inferred in the Zoning Code. Ha. e 53171ord-Tard wished to exempt Trustee Lands from the purview of the Zoning o.e, d have-previ or an exception similar to that containe. in _ e We ands Ordinance. Accordingly, plaintiffs ' crosS-utoti is denid. a ppearing that all other contentions in plaintiffs ' opposition to intervenors-defendants motion for summary judgment lack merit, their motion for an order granting intervenors-defendants summary judgment is granted and the Copyright © 2002 The New York Law Pub. Co. • ,. . Page 6 11/6/2000 NYLJ 35, (col. complaint is dismissed as to them. The foregoing constitutes the Order of the Court . 11/6/2000 NYLJ 35, (col. 5) END OF DOCUMENT Copyright © 2002 The New York Law Pub. Co. -RANSMISSION VERIFICATION REPORT, TIME : 03/14/2002 12: 47 DATE,TIME 03/14 12:47 FAX NO./NAME 5432271 DURATION 00:00:39 PAGE(S) 02 RESULT OK MODE STANDARD ECM Sidney D. Cymbalsky 65300 Nort7a1-e- 3 &h Road Greenport, NY 11944 - e): 0404ct 7 64 3b��z - off w spz, c„,,,sv4,, e LMi/o /1/070/0a toae l d Q e spa (re / cce v/"1.7 re) 7 w& code 77 y 2760v I?F-i/I hoc ei Opt I d'P r e9pse it es rG7/1/e 4.)- 74e_ Coda5 /s p- ©lye- i a� ��� •r,� .rte �� o As ''eco ISI` o�no,"r 9", �fdJedt ti OFFICE OF ZONING BOARD OF APPEALS 53095 Main Road Southold, NY 11971 Email: Linda.Kowalski(a Town.Southold.ny.us or Paula.Quintieri(a Town.Southold.ny.us http://southoldtown.northfork.net (631) 765-1809 fax (631) 765-9064 FAX TRANSMISSION FAX# 51/3 0 �,2 7/ ATTN: )9' -Wef,i) > /1j gam) (CDATE: c3 //1/ /2002 REF: 1</7 L E (CI ,. MESSAGE: Please feel free to call if you did not receive all sheets. Town Hall hours are between 8 and 4. Thank you. Pages to follow: SOUTHOLD TOWN BOARD OF APPEALS TRANSCRIPT OF PUBLIC HEARINGS HELD FEBRUARY 28, 2002 (Prepared by Paula Quintieri) resent were: Chairman Goehringer Member Tortora Member Horning Member Oliva Member Orlando PUBLIC HEARINGS: 6:55 p.m. (Carryover from January He<., ng) — Appl. No. 5034 — RUST FAMILY PARTNERSHIP. Interpret 'on and/or ' elief for Addition with setback variances from front lot line and bulkhead, at-46:0 unneweta Road, Cutchogue; 111-14-34. R. Lark, Esq. for the applicant; P. Moore, 4. for J. Cella). To be inserted 7:26 p.m. Appl. No. —KACE LI, INC. (Carryover from January 24, 2002.) This is an Appeal requesting Reversal of the Building Inspector's Notice of Disapproval dated August 13, 2001, which disapproval denied an application for a building permit for two- family dwellings under Article IV, Section 100-42A.2. The reason stated in the Notice of Disapproval is that the proposed project indicates several two-family dwellings on a single parcel, and that the Code allows only one such structure per lot as a permitted use. Zone District: Hamlet-Density (HD). Location of Property: South Side of North Road or C.R. 48, 500+- feet east of Chapel Lane, Greenport; Parcel 40-3-1, now or formerly referred to as "Northwind Village" site. M. Pachman, Esq.; A. Tohill, Esq. CHAIRMAN: I would like to re-open Appeal #4927. Mr. Pachman, I would like to just set some quick ground rules on this. What I would like to do is, after your presentation of course, we'll take any information from counsel, opposing counsel and I guess we'll give opposing counsel some time to react to what you say tonight, both of you actually. MATTHEW PACHMAN, ESQ.: I don't mean to interrupt you Mr. Chairman. Do you mean additional adjournment? CHAIRMAN: No. As I said this would be reduced to writing. That's basically it. So we will ask you to proceed sir. • r i Page 2,February 28,2002 ZBA Public Healing Transciipt Town of Southold MATTHEW PACHMAN, ESQ.: Thank you Mr. Chairman, Members of the Board. Good evening, it's nice to see you again. I know that the first time that the applicant appeared on this application was in September, so we're at about our half-year anniversary. I'm glad to hear Mr. Chairman that we are close to being able to give this to the Board for its decision. When we were here last time we heard a presentation by Mr. Emilita, those of the Board that were here. And a discussion of certain cannons of statutory construction by Mr. Tohill, and I was struck by two things listening to that presentation. The first is that most respectfully Mr. Emilita's presentation was, I would suggest replete with possibility inadvertent errors of both law and fact and that Mr. Tohill's discussion of statutory cannons were for the most part absolutely correct, but we would submit when applied to this case, (re-adjustment height of microphone) but that when those cannons are applied to this case, they inure to the benefit of the applicant and I would like to take a moment to explain why. First I wanted to insure that the Board was not overly taken with the fact more than a decade ago, for a period of time, Mr. Emilita was a consultant to the Town. So I asked, who I think we can all agree is, possibly the pre-eminent expert on planning and land use matters in this county, Dr. Lee Koppelman to do an independent review of the application and of Mr. Emilita's analysis and come to his own conclusions for the Board's benefit. Now although Mr. Koppelman is teaching as his royalized professional political science and director of the center for regional policy studies at SUNY/Stonybrook tonight, he does have this affidavit that I would like to submit to the Board. And the record should reflect I've given a copy to Mr. Tohill. I know that you have some members sitting up on the dais who have not been part of this application before. I don't know if they are going to participate in the decision-making, I do know that Mr. Tohill's application and submissions have been filed for several weeks. So, Mr. Chairman, with the Board's permission I would just like to read a few sections of Mr. Koppelman's Affidavit for the edification of the Board. He lists or he goes through each and every paragraph of Mr. Emilita's analysis and he notes that Mr. Emilita, his objections pretty much can be put into six sections. The Thursday's that the mention of the site plan is no longer valid according to Mr. Emilita, well, again, Mr. Chairman and Members of the Board the Building Inspector has listed only one basis for a Disapproval and his Notice of Disapproval and that's the only issue that has been before this Board. The issue is limited, narrow and focused. Any other issue such as the validity of the 1983 site plan is beyond the scope of this application. Mr. Emilita's second claim is that more than one family or one two-family dwelling is considered a multiple dwelling under the Code. Now, Mr. Chairman and Members of the Board, this is very important because cumuli and indisputably that's not correct. The Code defines what a multiple dwelling is and a multiple dwelling is a building with three or more dwelling units which absolutely has been said over and over again, is not what the applicant is looking to building. This is what Dr. Koppelman says about Mr. Emilita's analysis. He says, upon closer scrutiny the reason for Mr. Emilita's attempt at statutory Alco my as the affidavit says, becomes clear. Without this, under his theory the applicant can building only one two-family house but may multiple dwelling units. Which, Mr. Chairman and Members of the Board are listed as a conditionally permitted use and we all know that a conditionally permitted use actually constitutes a legislative finding that such dwellings are in harmony with the community's general zoning plan and are not adversely affect the neighborhood. And this is exactly the position which the Building Inspector has taken in his letter to the Page 3,February 28,2002 ZBA Public Hearing Transcript Town of Southold applicant dated August 9, 2001, a copy of which is attached and I believe is already in your file. In other words, the reason why Mr. Emilita tries to change the very clear reading of what a multiple dwelling is because he understands that otherwise the absurd result is the one that the objectors are bringing forth. You can actually have multiple dwelling units on that property as a legislative determination that it fits with the character of the zoning plan and will not adversely affect the neighborhood and under their interpretation you can only have one two-family dwelling. His next objection is that one must read the Code Section we're talking about, 100-42A in the context of the entire Code. Well we all dream of that and this again highlights the flaw in Mr. Emilita's analysis because as we've discussed, in every other residential zoning district in the Town of that's AC, R80, R120, R200 and R400 there limiting language which says one-family detached dwellings not to exceed one dwelling per each lot. The Code is clear, it's consistent and it is unambiguous when it wants to limit the dwellings to only one per lot. In stark contrast 100-42A does not have such limiting language. The next objection is that according to Mr. Emilita by a coronary reasoning process, they would be required on a near application for a Building Permit, one would be allowed to build more than one two-family dwelling without reference to the dimensional requirements of the Code, the site plan requirements of the Code, without consideration of the availability of public water or public sewer and would read Section 100-42B, that's the conditional permitted use section out of the Code. Mr. Chairman and Members of the Board that quite frankly and most respectfully is flat wrong. The application that the applicant has put forth complies with all of the bulk and dimensional requirements as contended in the Code. For example if the one half acre density of the 20,000 square feet density, the applicant could construct 44 structures and the site plan only shows 27 structures. It has never showed issuance of the Building Permit prior to the availability public water or sewer or without site plan approval and the proper interpretation of this Code Section would leave those requirements unaffected this argument is nothing more than a red herring. The next objection in Mr. Emilita's analysis is that the proper interpretation would read, Section 100-42B the conditional permitted use out of the Code again, that's simply not correct. Kace has never made such a claim and there was no such Interpretation before the Board. Multiple dwellings do and would still be required to get a Special Permit or Special Exception approval by this Board. Finally, he says the legislative intent supports the Building Inspector's Interpretation as contained in the Notice of Disapproval. As we have discussed there is no need to look to legislative intent if the Code as here is unambiguous. But, you have to recall what I said before, that it is under Mr. Emilita's analysis which the absurd result would occur because you could comment in here, meet the conditions of the Special Exception which has been determined legislatively to feed within the Zoning Board of Southold Town that you could finally build one two-family house. Thus, Dr. Koppelman says that in his opinion, the relief requested by the applicant should be granted. With respect to the statutory construction analysis that Mr. Tohill discussed last time he referred to the case books on statutes and the general construction law and I would like to just re-emphasize some of the things that he said because, again, we respectfully submit that those very general, those very cannons, if they are necessary to be applied fully support the applicants position. (break in tape) First, one that Mr. Tohill did not or a rule that Mr. Tohill did not raise, is that its hornbook law, Members of the Board, zoning restrictions are in derogation of the Page 4,February 28,2002 ZBA Public Hearing Tianscnpt Town of Southold common law property rights and must be strictly construed in any ambiguity, if there is one in the Code, must be resolved in favor of the property owner. Second, the legislative intent is to be ascertained from the words and the language used and that's McKinney's Statute Section 94, and the Code has to be read as a whole. All the parts have to be read and construed together; you must get the effect and meaning to the entire Code and to every part thereof. And that's why you must read the limiting language in Section 100- 31, the Section which talks about every other residential zoning district in the Code and compare it to the absence of such limiting language in 100-42. Second, pursuant to the General Construction Law Section 41, and the New York State Town Law Section 63 and Members of the Board this is very important because this addresses one of Mr. Emilita's arguments. A Town Board acts in each instance in one way and only one way to run affirmative vote of the majority of its members and it does not act by the opinions of its consultants or its attorneys and so this argument that the reason that Section 100-31 has limiting language and 100-42 doesn't is supposedly because a consultant wrote one section and an attorney wrote another section is absolutely irrelevant. The Town Board adopted the Code, it adopted the Code at the same time, and it adopted the Code as an integrated whole and each part of that Code must be read together and harmonized. The Sections were adopted simultaneously, and the distinction between the limiting language in the first Section 100-31 and the conspicuous absence of that same language in 100-42 was not inadvertent. Finally, when the law expressly describes a particular thing to which it should apply, like this limiting language, there is according to statute Section 240, an inference that what was admitted or it is not included was intended to be omitted or not included. That's the omission of the limiting language in 100-42, which was expressly put into 100-31. And there is an expression, it's a Latin expression, I'm going butcher it I'm sorry but I'm going to give it my best shot here, expressio unis es excusio auterios and the reason I say it is absolutely a very important rule of statutory construction and that says, when language such as a limiting language is expressly provided in the five other pertinent residential sections of the Code and not in Section Code 100-42 it was intentionally omitted and excluded from that Section. The inclusion of something in one part means that the exclusion of it in another part was intended. Also,just as Mr. Tohill said, statute Section 145 says it is presumed that the Town Board intended to map something which was reasonable and that no unreasonable or absurd result was intended from the Board and should be interpreted by this Board and that's exactly correct. It would be absurd to say that you could only build one two-family house on that lot, but you could build multiple dwellings, many multiple dwellings on that same lot pursuant to a conditionally permitted use which again, is actually a legislative determination that such is in harmony with the community's general zoning plan and will not adversely affect the neighborhood. Finally, a legislative body such as the Town Board has the right to define any word or phrase it chooses to in the statute, that Statute Section 75.B and that's what the Town Board did when it enacted Section 100-13A which reads word usage, the singular number includes the plural and the plural the singular. Not only that, Members of the Board but the General Construction Law says the same thing. It says in the General Construction Law Section 110, and you know what, the General Construction Law says that that is applicable to every statute. It says in Section 35, words in the singular number include the plural and the plural in the singular. Thus, Section 252 the section of the statute that Mr. Tohill refers to is superceded by both Page 5,February 28,2002 ZBA Public Hearing Transcript Town of Southold Code Section, Southold Code Section 100-13A and General Construction Law Section 35 and is inapplicable to this matter. Last, another phrase that Mr. Tohill used last time, he parried material. Well that's correct. When different terms are used in various parts of the statute like the Zoning Code you must assume the distinction between the terms is intended and you must read the entire Code together. Mr. Chairman and Members of the Board when you clear the smoke away we respectfully submit this application is clear and its relatively simple. The Interpretation of by the Building Inspector flies in the face of the unambiguous reading of the Code as a whole, it leads to an absurd result and it should be overturned. Thank you very much. CHAIRMAN: Any questions of Mr. Pachman before he sits down? Mr. Tohill how are you tonight? ANTHONY TOHILL, ESQ.: Good evening Mr. Chairman and Members of the Board. My first question has to do with housekeeping, and I would like to know whether Miss Oliva and Mr. Orlando have a copy of the package that I presented at the last meeting and if they don't, I did knock down a cherry tree this afternoon and I have two more packages that I'm ready to hand them up right now. MEMBER TORTORA: Its not necessary, the Board Members have familiarized themselves with the full record, have ready all the transcripts, have read all the record including the handups that you presented at the last hearing. ANTHONY TOHILL, ESQ.: I'm asking as a courtesy from me to the Members of the Board whether or not they have separate copies of all the packages that I handed up. Is the answer yes? CHAIRMAN: I do not Mr. Tohill. You did not give me one, you gave one for the record, and I was reading in the office on Saturday morning, so I would love one. ANTHONY TOHILL, ESQ.: Okay. CHAIRMAN: Thank you sir. MEMBER TORTORA: We were so conscious about this that we gave the Chairman's file to the members. ANTHONY TOHILL, ESQ.: Let me bring this back to a context that is as practical as I can make it practical. (microphone adjustment) that got us here to the Zoning Board of Appeals. Each of those four Building Permits recites the intended use of the property. Not my language, it's the applicants language, multi-family use as per approved site plan; two different concepts. We're here because the Building Inspector denied the application for Building Permits, not recipes for chili contests, Building Permits. That means that if the Building Permits are issued, bulldozers go there and they start building buildings. But buildings that they build, according to the applications that are the only records before the Town, four of them, are multi-family use as per approved site plan. So that's Page 6,February 28,2002 ZBA Public Hearing Tiausctipt Town of Southold the first point. Second, how many two-family houses are you allowing that you draft the relief requested. Don't all answer at once because you may speak in four different tongues, and in fact, if Matt Pachinan and I are given a chance to speak, we may raise it to six and if we give everybody in the audience a chance, we may raise it to a infinite number and the reason is, there is no number, there is no number at all. Nobody knows the number. However, if you deal with this on the level of abstraction that was offered to you as the path to redemption by the applicant's attorney here this evening, you have to appreciate that you are going to allow a Building Inspector, you are authorizing the Building Inspector to issue four Building Permits for an unknown number of multi-family use as per approved site plan. However, you do know that there is a site plan, the 1983 site plan, you do know that that site plan became invalid in 1985 under Local Law 11 of 1985, it was enacted twice. You do know that that site plan became dead again, more dead than it was under Local Law 11 of 1985, under Local Law 1 of 1989 because the Town Board again changed the district to HD then light residential, multi residential and increased the density so that that as per approved site plan that was now sent to you four times because it says so four times in the site plan application, is no approved site plan. So, if that's the way it's going to be handled then the level of obstruction is no rule out of this, that means that everybody in this town who has a single-family residence in a single- family residential district, you just read one hell of a Code. In fact any place that there's a number you read it out of the Code and the reason is none of us knows what the number is as a matter of fact. That's why this whole argument is what I told you the last time holding up meets the mischief that you have here is that you're going to encourage not to read all of Chapter 100. Never see that presentation with a straight face before any agency, I cannot imagine what it would be like in this Court of law to say to a judge, judge don't read all of the law, don't go to law school for three years, go to law school for one week. Its much more economical, you'll start earlier, you will make more money don't waste your time spending those additional three years or whatever it is in school. Here you are actually being encouraged to hang a premium, a premium on ignorance don't read Section 250 of Chapter 100 that says you can't have this land use without site plan approval. I want to ask you also; you solicited the opinion of your Planning Board in the document that I handed up, the booklet that looks like this. That document is Exhibit Z, the last letter in the alphabet. It's a September 22, 2001 memo from the Chairman of the Planning Board. He's either taken leave of his senses altogether, lost all track of any understanding of land use or he made an error, an absolutely terrible error. He said to you that this application, these applications, we're going with can't perceive. He said because there's no site plan approval. He said it needs SEQRA review, he said it needs Suffolk County Power Commission approval. He says it needs Suffolk County Health Department approval; he says it needs Suffolk County Depaiintent of Public Works approval; he says it's not for the use that was approved in 1983. He says it's for a different project from the approved site plan, as per approved site plan. He has not taken leave of his senses. He's speaking in complete sense. This is an application for four Building Permits. Understand the implications of what you're being asked to do. You're being asked to direct the Building Inspector, to authorize the Building Inspector to approve those Building Permits. When Mr. Pachman argued to you, don't look at anything else, that encourages you to be embarrassed in front of many of us who have nothing but respect for this institution and for each of you. Because if Page 7,February 28,2002 ZBA Public Healing Tianscnpt Town of Southold you were ever to buy into that line, can you imagine what would happen in the weeks ahead at Mike Verity's desk. We don't know what was approved, we can't it; when he wrote the denial letter he had no obligation to act as a lawyer, he had no obligation to send to you a memorandum of law, which by the way was left with you this evening as if I were alone with the Chairman, chicken liver, he doesn't get a copy of anything and I don't even get a response to what I spent all that time writing. I assure you that when this case, if it ever does, get to a court of law, we will not be hearing the argument that you heard as the whole presentation seeking by the applicant. Don't read the entire book, you'll get confused, it has nothing to do with anything, just handle one section. Thank you. CHAIRMAN: Mr. Tohill you did get a copy of Mr. Pachman's response, did you not? ANTHONY TOHILL, ESQ.: I'm sorry? CHAIRMAN: You did get a copy of Mr. Pachman's response? ANTHONY TOHILL, ESQ.: You mean this copy of this Affidavit? CHAIRMAN: Yes. ANTHONY TOHILL, ESQ.: I just got it here this evening, I haven't read it and I am going to ask as you offered before to respond. MATTHEW PACHMAN, ESQ.: Mr. Chairman, I apologize did I a copy of Memo of Law to Mr. Tohill I didn't, I apologize. ANTHONY TOHILL, ESQ.: I have nothing except the copies of . When was it handed in? CHAIRMAN: Just now. ANTHONY TOHILL, ESQ.: Oh, I didn't see you hand that in. MATTHEW PACHMAN, ESQ.: Did I get it up to the Board? MEMBER TORTORA: A Memorandum of Law from you? MATTHEW PACHMAN, ESQ.: Yes, the Memorandum of Law. MEMBER TORTORA: No, we have the Affidavit of Mr. Koppelman. MATTHEW PACHMAN, ESQ.: Mr. Chairman, I am handing up copies of the Memo of Law, I apologize. I thought I had and I'm giving a copy to Mr. Tohill. If I might briefly respond to Mr. Tohill's statements because I feel as if Mr. Tohill, for whom I have great respect, didn't hear the arguments that I was making; indeed it is the opposite of his Page 8,February 28,2002 ZBA Public Hearing Transcript Town of Southold claim. You must, in fact, read the entire Code. Now, Mr. Chairman and Members of the Board, I continue to say what I said at the last meeting, and what I said at the meeting before, because it doesn't matter how many times the opposition makes the claim, there is only one issue and one issue alone before this Board and that's the Interpretation, excuse me, the Notice of Denial it is the amended Notice of Denial of the Building Inspector dated August 13, which denied the application on one ground. The reason why I didn't comment on Mr. Tohill's Memorandum of Law but I will now; because that Memorandum of Law whether its contents are right or not right, whether I would agree or would not agree, talk about issues which are absolutely irrelevant to this application because that entire memorandum of law deals with whether the 1983 site plan is still valid. And Mr. Chairman and Members of the Board, I'll say it for the third time tonight, maybe for the tenth time during this entire application, that's not the issue before the Board, that's not the issue that the Building Inspector denied the application on, this Board has a limited jurisdiction, it is to interpret and review the determination of the Building Inspector as contained in that August 13th Notice of Disapproval and that is the only issue and that is the only jurisdiction of the Board. MEMBER TORTORA: I have a question for you Mr. Pachman? MATTHEW PACHMAN, ESQ.: Sure. MEMBER TORTORA: Mr. Tohill suggested that there are four Building Permit Applications. For the record, have you or have you not withdrawn all prior applications before this Board? MATTHEW PACHMAN, ESQ.: Yes, other than the one that led to the August 13th denial from the Building Inspector. MEMBER TORTORA: Have they all been formally withdrawn as a matter of record? MATTHEW PACHMAN, ESQ.: Well, I believe they have because I believe that in the file we have a MEMBER TORTORA: We have correspondence, yes. MATTHEW PACHMAN, ESQ.: correspondence. They absolutely have it, there is correspondence to the Building Inspector, and if there's any ambiguity, we will continue to say it, we'll say it today, we'll say it later on if the Board wants; there is one Building Application which is before the Town at this point, it was the one that led to the Notice of Disapproval in August 13th, it was the one that was the basis of the amended Notice of Disapproval and the one that we are before here today. MEMBER TORTORA: Okay, for the sake of time could we wrap this up so and we would like to close this hearing tonight. CHAIRMAN: No we're not closing it, we're closing it to verbatim only. Page 9,February 28,2002 ZBA Public Hearing Tiansciipt Town of Southold MEMBER TORTORA: Exactly. CHAIRMAN: What we're requesting is from Mr. Tohill is approximately ten day response. MEMBER TORTORA: Ten days, both of them. CHAIRMAN: Yes, and a ten-day response from Mr. Pachman. MEMBER TORTORA: Both of you, ten days. CHAIRMAN: That puts us at the 21st meeting. ANTHONY TOHILL, ESQ.: Let's do a quote, ten days from today and be done with it. CHAIRMAN: Well because ANTHONY TOHILL, ESQ.: It'll go on and on and on and on. MEMBER TORTORA: No ten days for both of you, not ten days for you and ten days for him. ANTHONY TOHILL, ESQ.: That's exactly what I'm saying. MEMBER TORTORA: Ten days for both of you at the same time. MATTHEW PACHMAN, ESQ.: Then I may receive his on the tenth day, you know ANTHONY TOHILL, ESQ.: I'll hand deliver it. MEMBER TORTORA: In fact, we will all receive the same information on the same day. ANTHONY TOHILL, ESQ.: Exactly. MEMBER TORTORA: But we can't go back forth, with you responding to him and you to responding to. There's more than sufficient evidence on the record at this point, for this Board to make a determination. Make your closing statements; let's be done with it. ANTHONY TOHILL, ESQ.: I agree, goodnight Grace. CHAIRMAN: Trust me it's not going to happen. ANTHONY TOHILL, ESQ.: So ten days from today? Page 10,February 28,2002 ZBA Public Hearing Transcript Town of Southold MEMBER TORTORA: Correct. MATTHEW PACHMAN, ESQ.: As I understand it, if Mr. Tohill hand delivers this to me on the ninth day, then I have a day to respond? CHAIRMAN: No, that is not correct. MEMBER TORTORA: You both have ten days. ANTHONY TOHILL, ESQ.: Jerry, let's do a Monday; what's a Monday, not this coming week but the following week? Does anybody have a calendar? The 11th? March 11th, everybody submits on that day and that's it. MATTHEW PACHMAN, ESQ.: That's precisely what the Chairman is not saying; normally the applicant has the last word because it's the applicant's application. CHAIRMAN: We'll give everybody until the 15th. ANTHONY TOHILL, ESQ.: Okay, the 15th and that's it. CHAIRMAN: Right. If there's any problem Mr. Pachman, let us know. Please remember before you two gentlemen leave that we will be closing the hearing on the 21st MATTHEW PACHMAN, ESQ.: Thank you Mr. Chairman and Members of the Board. (break at 8:05) 11 7,147 11•\)1 MAR 2 1 �2 F • • 11111, Appeal Application, Continued • leo t I iea.b / BOARD OF APPEALS : TOWN OF SOUTHOLD - COUNTY OF SUFFOLK:STATE OF NEW YORK x - application of Appeal Application (Continued) Property ID # REASONS FOR USE VARIANCE x Continuation of Appeal Application for a Use Variance (when applicable): For Each and Every Permitted Use under the Zoning Regulations-for the Particular District Where the Protect is Located (please consult your attorney before completing): (1) The applicant CANNOT realize a REASONABLE RETURN because: (2) The HARDSHIP relates to the property and does not apply to a substantial portion of the district or neighborhood because: (3) The relief requested will not alter the essential CHARACTER of the neighborhood because: (4) Has the alleged difficulty been self-created? 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Oliva abs -f-w/1,Po y ,N!!�� ZBA Fax (631) 765-9064 Vincent Orlan = 01 �a,ii�• Telephone(631) 765-1809 „ soo http://southoldtown.northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD Prep.7/8 AGENDA SPECIAL MEETING THURSDAY, JULY 11, 2002 (0:g5 6.45 p.m. Call to Order. I. STATE ENVIRONMENTAL QUALITY REVIEW DETERMINATIONS (SEQRA): Type II Declarations (No further steps under State Law): (none at this time). Unlisted Declarations with Negative Effect on the Environment: (none at this time). II. POSSIBLE DELIBERATIONS/DECISIONS on the following applications: A. Carryovers from previous meeting calendars: p501 Appl. No. 5058 — CHRISTINE KOSMYNKA AND ANN BURGER (formerly Leoniak o✓er. property). Received PB reply 7/1. Hearing concluded 6/20. 6_4,;,)e> Appl. No. 5068 — GLENN and CHRISTINE DAWSON. 150 Broadwatedrs Road, 7.7 Peeps/oZ Cutchogue; 104.-10-8. Hearing concluded 6/20. ko Appl. No. 5072 -J. CALLIS, ET AL. (Miller property). Hearing concluded 6/20. 1j' vb (a • ,Apel. No. 5099 — MATTITUCK HISTORICAL SOCIETY. (Hearing concluded 5/16, -(-in /W.a pending financial information from applicant.) Appl. No. 5098 — GEERT MARTENS AND R. MURRAY. (Received landscape plan riga C info on July 5t''; hearing concluded 5/16). v D III. PUBLIC HEARING: (Carryover from previous meeting) J CD: �'C54447;- ro Ta 6d r p.m. Appl. No. 5127—NEXTEL. J. Caputi, Esq. (Hearing recessed from 6/20). y A7'.3° G(osz-ct_. IV. RESOLUTIONS/UPDATED REVIEWS/OTHER: X A. Next Regular Meeting Date with public hearings: 6:30 p.m. July 25, 2002. B. \/ V. POSSIBLE EXECUTIVE SESSION (litigation pending—t/b/d). . CL+ e-d. C J S ( , SOUTHOLD TOWN BOARD OF APPEALS TRANSCRIPT OF PUBLIC HEARINGS HELD JULY 11, 2002 (Prepared by Paula Quintieri) Present were: Chairman Goehringer Member Tortora Member Orlando Absent were: Member Horning Member Oliva PUBLIC HEARINGS: 7:10 p.m. Appl.No. 5127—NEXTEL CHAIRMAN: Are there any opening remarks you would like to make? J. CAPUTI, ESQ.: We have presented our entire application at the last meeting. I'm just here to answer any concerns, if I can. CHAIRMAN: Sure. J. CAPUTI, ESQ.: Thank you. CHAIRMAN: You're welcome. Is there anybody else that would like to voice concerns regarding this application? Either one of you two ladies? I need you to use the microphone. LAVERNE TAYLOR: I'm Lavern Taylor. The last time I was here I was still confused and I'm really not so much confused this time I just don't agree. As far as the shelter, she was telling me it was for antennas. Number one, I don't know if I can do anything. The tower that go in in 1991. My husband inherited the house in 1985. We were never notified about any tower being put there and I thought that was very unfair about the tower. And because the tower was put there that's why, now they need room for the shelter and I'm not sure I can do anything about that, because that's years ago. But I'm still not satisfied. I don't think its safe and I just don't want it there. MEMBER TORTORA: How far is it from your property? LAVERN TAYLOR: Is it 70 feet away from my property? J. CAPUTI, ESQ.: The tower, or the shelter? Page 2,July I l,2002 ZBA Public Hearings Town of Southold MEMBER TORTORA: Your property. CHAIRMAN: The Junge property is how far from your property? Is it next to your property? MEMBER TORTORA: I'm trying to figure our why you weren't notified that's all. LAVERNE TAYLOR: Never. CHAIRMAN: Could I just explain something to you? In 1991 we had Public Hearings on this tower. LAVERNE TAYLOR: I was living in Maryland with my husband at the time. The house that we live in now was going through probate and the Wickham's were handling the case. We were never notified by them asking us anything or to even come here for a public hearing. I thought that was so unjust. CHAIRMAN: Well now if your attorney was representing you then your attorney was notified,because whoever was receiving the mail did get notified in that 1991 hearing. LAVERNE TAYLOR: Are you sure? CHAIRMAN: Of course. We certainly have the transcript and we certainly have the file. And we can certainly tell you who was notified. LAVERNE TAYLOR: Can I get that information? CHAIRMAN: Sure you can come into the office and get it. We just want you to know that the file has to be gotten from downstairs. It's not something that can be done immediately. LAVERNE TAYLOR: Okay. CHAIRMAN: It's our file and we have to go down and get it. We have to bring it up and we can tell you who was noticed and it was done in the local paper and the hearing occurred. But since then, subsequent to that telecommunications law which the Town Board adopted indicated to us and to the Town, and I don't think I go into this at the last meeting with you ma'am, that instead of building additional towers we are co-locating additional services on the same towers. And that's what I believe is happening here. And that is the reason why this counsel is here representing Nextel. Because Nextel wants to co-locate on this tower; which means put their services on this Tower. And the purpose of counsel bring here is, of course, this shelter which you are referring to. And we understand that. You are certainly within your right to express your dissatisfaction about it, and I can say it's duly noted, but you certainly can review the file. You just have to Page 3,July 11,2002 ZBA Public Hearings Town of Southold call us and one of these nice ladies will go down and retrieve the file and then you can review it in our office. LAVERNE TAYLOR: Okay, and if I find out that I wasn't notified, well I know I wasn't notified because I'm just finding out all this. Where do I go from there? CHAIRMAN: To your attorney. LAVERNE TAYLOR: Because it's really unfair, if we were not notified, my husband and myself. CHAIRMAN: Let me just get the line on this. This is the house between you and the entrance to the landfill? LAVERNE TAYLOR: Yes it is. CHAIRMAN: The one you have the pretty flowers out in front and you just put a lot of money into it. LAVERNE TAYLOR: Yes. Oh which one. Oh the next door one, there's two of them. CHAIRMAN: Oh there are two of them? LAVERNE TAYLOR: Yes, we just split everything got split in half. CHAIRMAN: Oh, okay. But you're the one most adjacent to the Junge property? LAVERNE TAYLOR: Correct. CHAIRMAN: Okay. LAVERNE TAYLOR: I'm right next door to that. MEMBER TORTORA: Could you show me on this map please, if you would? Here's where the shelter is. Is it over where the shelter is, over here? J. CAPUTI, ESQ.: Okay on this side, it says where her land. Are you the little yellow house? LAVERNE TAYLOR: Yes, we're the little yellow houses. J. CAPUTI, ESQ.: Closest to the road? CHAIRMAN: There are actually two houses that are there that are relatively close to the road. You're the middle one between the entrance to the landfill and the Junge property. So you're directly west of the Junge property. Page 4,July 1 1,2002 ZBA Public Heat ngs Town of Southold LAVERNE TAYLOR: Correct. MEMBER TORTORA: I see here. Can you tell me why you have no landscaping in front of the shelter? J. CAPUTI, ESQ.: Our shelter, the proposed shelter? As it says in the plan, due to the industrial nature of the existing site fencing, we weren't planning on any landscaping. Of course, we do have to go to the Planning Board for site plan approval, so whatever they need we will abide by but right now there is no plan. When I drove by today, it's heavily treed. First of all we're in that far opposite corner from their house. We provide a greater rear yard than the Board already granted for the existing shelter and in that variance decision, which I have a copy of with me tonight and ask that you review it in your file. You made all the findings for the area variance that there was no detriment to all of the 1991 variance. I don't see that there's any, we're providing a greater, we're abutting the landfill as the neighbor and it's a smaller shelter I think too. CHAIRMAN: The reason why was because the Town was not adverse to the construction of this monopole at that location. Had this been a residential piece of property I think there would have been great concern. But it is one of the storage areas for the landfill and that is the reason why the Town chose not to object to it at that point. MEMBER TORTORA: Well, still in all, I think there's a need for buffering there because there is a residential community there and the residential community has been there long, long before that was a landfill. Long before you were there and I think we have to respect their concerns and I think that a nice landscaping plan would go a long way to buffer that building from the adjoining property. J. CAPUTI, ESQ.: Just around our building. CHAIRMAN: You're certainly not going to deal with the other aspect of it if its. J. CAPUTI, ESQ.: It wouldn't seem fair to make us landscape the entire thing that was there. MEMBER TORTORA: I'm not suggesting that. I'm suggesting that it be directly related to the variance you are requesting, not to any other part of the plan. But it would seem to me that, and I'm not a landscaper so, perhaps if you submit a plan that it would be either in this area in here rather than back here. I think it would have a lot more effect if it were right here. J. CAPUTI, ESQ.: Or we could put it directly right around the proposed shelter. Around the exact building, so that it would be screened. I could probably propose two different things. Page 5,July 11,2002 ZBA Public Hearings Town of Southold MEMBER TORTORA: Exactly, I think if you did something up in here you would also be taking the impact of the industrial look away from the residential community and it would go a long way to be a lot more compatible with the neighbors. CHAIRMAN: So what we're doing is basically Ms. Caputi is setting you up in saying that if we intend to grant this, its going to be subject to the Planning Board. MEMBER TORTORA: No our Board. CHAIRMAN: No, no you cannot do that Lydia. 'If they are going to the Planning Board, the Planning Board does the screening. MEMBER TORTORA: We just went through screening with... CHAIRMAN: That's residential. MEMBER TORTORA: That doesn't matter. CHAIRMAN: Well then if you intend to put screening on this property when the Chairman of the Planning Board calls, he's going to call you. MEMBER TORTORA: Okay. CHAIRMAN: That's fine with me. Remember it's not going to be to my house or my office. MEMBER TORTORA: In other words, I think we're saying the same thing Jerry. Ours is going to be the condition on screening. CHAIRMAN: On screening that the Planning Board will work out with counsel. MEMBER TORTORA: Fine. J. CAPUTI, ESQ.: I don't think that Nextel will have a problem with that. CHAIRMAN: Okay let's see what else develops throughout the hearing. Subject to the Planning Board doing the screening and submitting the plans to us. Yes ma'am. LAVERNE TAYLOR: One question is there any danger involved with equipment of the antenna being in the area. Is there any danger that comes with that? Anything that we don't know about. CHAIRMAN: The main concern that I have always had was, and this of course, is so critical for us to understand at this time after seeing two tremendous towers in New York City fall. There is a fall back zone. When this 1991 application came before us it was a different monopole I believe, and our concern is wind velocity. With the monopole Page 6,July 11,2002 ZBA Public Heat ngs Town of Southold situation, it has been my understanding seeing through many of these hearings that the pole is made to break at approximately a halfway point and just bend down. Again, the Town's position and I'm not speaking for the Town because I only work for one agency of the Town, was in 1991 that they were not concerned with the fallback area because there are no necessarily any buildings close within that proximity that if God forbid the tower did fall at that point, tower as opposed to a monopole. I believe it's always been a monopole; this is just a bigger monopole. So again, I believe that that's the process that the monopole is supposed to take. I have always asked for wind velocity on every one of these. They have told me they are rated for 125 miles per hour and will take about 150 mile an hour wind velocity before there is any major default of the tower. So it's rated for 125, this is what they tell me. Because this is a question that we ask for a similar monopole that exists by the Auto parts store on the corner of Elijah's Lane and the Main Road over in Mattituck. It's basically the same type of monopole and that's what the wind velocity rating was at that time on that pole. They just rebuilt that pole to co-locate more units on that also. So this is my understanding, this is what the pole is supposed to do. Just as we say those towers pancake down like this. That's what it's supposed to do. So if it's a 100-foot tower and it breaks at the halfway point, fifty feet of it will just bend down like this. That is one of the biggest concerns I have concerning the monopoles, and any tower that basically is erected for the purposes of what we have here. That's really the best I can do for you at this juncture. LAVERNE TAYLOR: What number would I call to get that information? CHAIRMAN: 765-1809, and I believe that tower was applied for under the name of Arthur Junge. It was, I think, a Nynex tower at the time. Do you have the date of that decision? J. CAPUTI, ESQ.: Yes, its Appeal No. 4058 and 4062. It was November 21, 1991. CHAIRMAN: Okay. 11/21/01, 4058 and 4062. The only thing they did not have at that time was the public notice aspect of putting a sign out. We only, I believe, at that time, noticed you by mail. Since then, we've put the sign up. And that was one of the reasons why we put the sign up, because a lot of people were not, actually there are two philosophies on this, and I probably don't want to get into either one of them at this point because I don't know if I necessarily agree with the sign because with the amount of wind that we have out here, sometimes the signs blow away once you put them in. And it's difficult to put them in, in the wintertime when the ground is frozen. So if you don't have a tree to put it on, then they're really sustainable to all kinds of wind conditions. But, of course, that's not a problem this time of year. But I'm just telling you that's where we are. All right. LAVERNE TAYLOR: Thank you. CHAIRMAN: Your welcome ma'am. Are their any other questions regarding this? Hearing no further questions I'll make a motion closing the hearing reserving decision. Page 7,July 11,2002 ZBA Public Heaiings Town of Southold SEE MINUTES FOR RESOLUTION * * * APPEALS BOARD MEMBERS ,�0,0 ---- '����®�®SUFE®`�C®; Southold Town Hall erard P. Goehringer, Chairman �� � r/y 53095 Main Road James Dinizio,Jr. ; ® `rt .�� ; P.O. Box 1179 Lydia A. Tortora ,? Southold,New York 11971-0959 Lora S. Collins :`��, ` ������ ZBA Fax(631)765-9064 George Horning N., 49azo.1 in" Telephone (631)765-1809 BOARD OF APPEALS ,.,___..____ TOWN OF SOUTHOLD 12/26; 1/1A1/23 4 p.m. ) AGENDA C____--- ZBA MEETING OF THURSDAY, JANUARY 24, 2002 6:30 p.m. I. SEQRA Reviews/Determinations: (New reviews are pending inspections). II. PUBLIC HEARINGS: (Please furnish Affidavits of Posting, returned signature cards, etc. at, or before your scheduled hearing.) When possible, written ' testimony is requested in lieu of extensive oral testimony. Oral testimony is limited to zoning issues properly before the Board. 6:40 p.m. (Carryover Hearing) - Appl. No. 5034 — RUST FAMILY PARTNERSHIP. z..„_______ Interpretation and/or Relief for Addition with setback variances from front lot line and bulkhead, at 4680 Wunneweta Road, Cutchogue; 111-14-34. R. Lark, Esq.; e 7qAl,_)-b-.P, ea; . 6:45 p.m. (Carryover Hearing) - Appl. No. 4998 — ELIZABETH SENTELL. This is a request for a Variance under Article XXIV, Section 100-242A, and Section 100-244, based on the Building Inspector's July 27, 2001 Notice of Disapproval. The applicant is proposing additions to existing dwelling with side yard setbacks at less than 10 feet on one side and less than 15 feet on the other side. Location of ' ; Property: 220 Lakeview Terrace, East Marion; Parcel 31-9-16. G. Strang, R.A. ,•'(Await plan for alternative relief from applicant, not received as of 1/23). 7:00 p.m. (Carryover Hearing) - Appl. No. 4927 — KACE LI, INC. This is an Appeal requesting Reversal of the Building Inspector's Notice of Disapproval dated August 13, 2001, which disapproval denied an application for a building permit for two-family dwellings under Article IV, Section 100-42A.2. The reason stated in the Notice of Disapproval is that the proposed project indicates several two-family dwellings on a single parcel, and that the Code allows only one such structure per lot as a permitted use. Zone District: Hamlet-Density (HD). Location of Property: South Side of North Road or C.R. 48, 500+- feet east of Chapel Lane, Greenport; Parcel 40-3-1, now or formerly referred to as "Northwind Village" site. M. Pachman, Esq; A. Tohill, Esq. r III. POSSIBLE DELIBERATIONS AND DECISIONS: A. Possible Decisions: (Continued from prior Agenda): Appl. No. 4962.VAR and 5038.INT — ROGER WALZ. Hearing concluded 11/29. Appl. No. - INLAND HOMES, INC. and KAVANAGH. Hearing concluded 1/10. 7 Page 2—Agenda Meeting of January 24, 2002 Southold Town Board of Appeals B. Others deemed appropriate by the Board (from tonight's hearing list, 11 above). IV. 'RESOLUTIONS/UPDATES/OTHER: A. New application reviews for Calendars of February 21st; 6:30 p.m. V, EXECUTIVE SESSION (if any) (to be determined by Chairman). L. � D choir ANTHONY B. TOHILL, P.G. Ii ATTORNEYS AT LAW 12 FIRST STREET P.O. BOX 1330 ANTHONY B.TOHILL TELEPHONE. RIVERHEAD, NEW YORK, 11901-0903 (631)727-8383 MICHAEL T CLIFFORD OF COUNSEL --- TELEFAX: F-7(6311727-6336 March 25, 2002 - ,f MAR 2 6 )2 Zoning Board of Appeals 53095 Main Road -- - Southold, NY 11971 Re: Kace LI, LLC Dear Chair and Members : I received by mail (postmarked March 22, 2002 ) today and by fax at 4 : 30 PM on March 22, 2002 a letter and attachment from Mr. Pachman replying to my final submission on March 15, 2002 . The Board closed the record in this matter on February 28, 2002, at which time the Board directed any final submissions not later than the close of business on March 15, 2002 . We received nothing from Mr. Pachman on or after March 15, 2002 until March 22, 2002, long after the record was closed. I ask that the Board formally reject Mr. Pachman' s submission, and that the rejection be noted in the record. My clients object to any consideration of these materials as matter dehors the record. . Very truly yours, Anthony B. Tohill ABT/lm cc:-. Matthew Pachman, Esq. , ANTHONYo TOrnL,L, P.�.'. ATTORNEYS AT LAW R.O. Rox 1330 631-727-81t 3 Riv,lrhead, New York 11901-0903 FAX 631-727-6336 March 20, 20020 4029v-12f1v11 VXA_..FACSINIL: 765-9064yry 3ly1 1? , Zoning Board of Appeals 53095 Main Road Southold, NY 11971 Re: Race LI, LLC Dear Chairman and Members : 61n have on beha3f of the objectant neighbors supplemented our memorandum of law dated November 15 , 2001 and our other submissions delivered to you since November 15, 2002 by delivering to you on March 15, 2002 a supplemental memorandum of _ law with affidavit of service on Mr. Pachman. Wv have received no papers from Mr . Pachman, and the deadline imposed for submission of any document has passed. Thank you . Very truly yours, Anthony B. Tohill ABT/Lm cc : Matthew Pachman, Esq. at 543-2271 ZO' d dbZ =£O ZO �L�B' -O�- A r ANTHONY To ntL, +r.CG ATTORNEYS AT LAW P.O. Box 1330 631-•727-8381 Riverhead, New York 11901-0902 FAX 631-727--6336 TELEFAX TRANSMITTAL SHEET To: _ - -- - Fax No: Time - rDate 5ende.r -- ---- _-• - Sent Sent Ifite. Zoning Board of Appeals 765- 9064 C C a _- Matthew Pachman, Esq. 543-2271 FROM: ANTHONY B. TOHILL, P.C. Fax Number: 631- 727-6336 NUMBER OF PAVES, INCLUDING THIS PAGE: 2 DATE : March 20, 2002 RE: Kace LI , LLC ATTACHMENTS : Letter COMMENTS : A. B .T. THIS COMMUNICATION MAY CONTAIN INFORMATION WHICH IS CONFIDENTIAL AND/OR PROTECTED BY THE ATTORNEY--CLIENT OR OTHER APPLICABLE PRIVILEGE. IT IS INTENDED FOR RECEIPT AND USE SOLELY BY THE IND$VIDUAL(S) NAMED ABOVE. IF YOU ARE NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THIS COMMUNICATION TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISCLOSURE, DISTRIBUTION OR COPYING OF THIS DOCUMENT IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE AND RETURN THE ORIGINAL DOCUMENT TO US AT THE ABOVE ADDRESS VIA THE U.S, POSTAL SERVICE, THANK YOU. modiipl. TO " d dbZ :Co Z®-®Z-•-a12w TRANSMTT'TAL MO TO: ZBA Chairman and Members FROM: ZBA Office Staff DATE: .a/i �'//� SUBJECT:' Fil.e Update With reference to the above application, please find attached the following new information added to the official ZBA office file: fij F1.t - r • Comments: Number of Pages Attached: L ./ TrMemo.doc 414 Sidney D. Cymbalsky 65300 North Road Greenport, NY 11944 Tate- /C "(Pe-/6I / 1,,e 6 vo eciA7 o, t oct(d 13 e so S'eZ/- s-e f v/r7o i 7lv 1;44)/L) Co de_ 6-cz roo `r-ifi?f-7! `)o(.oyer OA 17i9C6'Lex 9626 %e y ins, geri7;o,� c.s 0Lace_ ee. e)/-0 74e S'/de. OP 112 afae7r-2r-2-te 1✓L iv. 7 A" Codes 10,h-e Id�f �L(�dr�J�„ t � ,s accottot f1 J` on7 19. Page 11,February 28,2002 ZBA Public Healing Ttanscnpt 1H)) Town of Southold TRICIA MOORE, ESQ.: We are certainly not opp• ed to any application of a va 'mice from a front yard,-if you even need it, because I r on't think you do. And from a side rd from the other side, which I don't think y•+ do either. So, as to Mr. Uhl's argume is I don't believe that they're strong enoug o change the character of the area. Let me ge back to the issue that as far as which etback applies. When you're dealing with, if yo were building, creating a lot out • a sub-division and you were in R40 Zone, you'd ook at that schedule. When y• • have lots even though they're in an R40 Zone than the :ether size criteria, I've alwa, been under the impression, and I think that the Building D••artment would agree, •u apply 102-44; which has differing setbacks depending on the size of the property. Because, even though you're in an R40 Zone, if you have two acres, you're not suppo:ed to apply the one-acre setback. So I think that the Building Departmen again, I wou • disagree with their initial review of this application and that, at best, they , ust kee i to 20 feet given their argument and depending on how you rule on the right-of- ay 50. CHAIRMAN: Mr. Uhl w is the width of proposed addition? CHRIS UHL: Approxi ately 1 feet. CHAIRMAN: 31 ff e-t wide? CHRIS UHL: C�frect. MEMBER TOVORA: 31 by 63? PATRICIA MOORE, ESQ.: 63, that's what te survey shows. CHAIRM N: Mrs. Moore is there anything els 4. we would like to move this along? PATRI IA MOORE, ESQ.: No, thank you. CH MAN: Anybody else? Seeing no hands, I'll ma e'a motion closing the hearing, rese ing decision. Thank you all for coming in. SEE MINUTES FOR RESOLUTION * * * - 7:26 p.m.Appl. No. 4927 —KACE LI, INC. (Carryover from January 24, 2002.) This is an Appeal requesting Reversal of the Building Inspector's Notice of Disapproval dated August 13, 2001, which disapproval denied an application for a building permit for two- family dwellings under Article IV, Section 100-42A.2. The reason stated in the Notice of Disapproval is that the proposed project indicates several two-family dwellings on a single parcel, and that the Code allows only one such structure per lot as a permitted use. Zone District: Hamlet-Density (HD). Location of Property: South Side of North Road or C.R. 48, 500+- feet east of Chapel Lane, Greenport; Parcel 40-3-1, now or formerly referred to as "Northwind Village" site. M. Pachman, Esq.; A. Tohill, Esq. Page 12,February 28,2002 —- ZBA Public Hearing Transcript Town of Southold CHAIRMAN: I would like to re-open Appeal #4927. Mr. Pachman, I would like to just set some quick ground rules on this. What I would like to do is, after your presentation of course, we'll take any information from counsel, opposing counsel and I guess we'll give opposing counsel some time to react to what you say tonight, both of you actually. MATTHEW PACHMAN, ESQ.: I don't mean to interrupt you Mr. Chairman. Do you mean additional adjournment? CHAIRMAN: No. As I said this would be reduced to writing. That's basically it. So we will ask you to proceed sir. MATTHEW PACHMAN, ESQ.: Thank you Mr. Chairman, Members of the Board. Good evening, it's nice to see you again. I know that the first time that the applicant appeared on this application was in September, so we're at about our half-year anniversary. I'm glad to hear Mr. Chairman that we are close to being able to give this to the Board for its decision. When we were here last time we heard a presentation by Mr. Emilita, those of the Board that were here. And a discussion of certain cannons of statutory construction by Mr. Tohill, and I was struck by two things listening to that presentation. The first is that most respectfully Mr. Emilita's presentation was, I would suggest replete with possibility inadvertent errors of both law and fact and that Mr. Tohill's discussion of statutory cannons were for the most part absolutely correct, but we would submit when applied to this case, (re-adjustment height of microphone) but that when those cannons are applied to this case, they inure to the benefit of the applicant and I would like to take a moment to explain why. First I wanted to insure that the Board was not overly taken with the fact more than a decade ago, for a period of time, Mr. Emilita was a consultant to the Town. So I asked, who I think we can all agree is, possibly the pre-eminent expert on planning and land use matters in this county, Dr. Lee Koppelman to do an independent review of the application and of Mr. Emilita's analysis and come to his own conclusions for the Board's benefit. Now although Mr. Koppelman is teaching as his royalized professional political science and director of the center for regional policy studies at SUNY/Stonybrook tonight, he does have this affidavit that I would like to submit to the Board. And the record should reflect I've given,a copy to Mr. Tohill. I know that you have some members sitting up on the dais who have not been part of this application before. I don't know if they are going to participate in the decision-making, I do know that Mr. Tohill's application and submissions have been filed for several weeks. So, Mr. Chairman, with the Board's permission I would just like to read a few sections of Mr. Koppelman's Affidavit for the edification of the Board. He lists or he goes through each and every paragraph of Mr. Emilita's analysis and he notes that Mr. Emilita, his objections pretty much can be put into six sections. The Thursday's that the mention of the site plan is no longer valid according to Mr. Emilita, well, again, Mr. Chairman and Members of the Board the Building Inspector has listed only one basis for a Disapproval and his Notice of Disapproval and that's the only issue that has been before this Board. The issue is limited, narrow and focused. Any other issue such as the validity of the 1983 site plan is beyond the scope of this application. Mr. Emilita's second claim is that more than one family or one two-family dwelling is considered a multiple dwelling under the Page 13,February 28,2002 ZBA Public Hearing Transcript Town of Southold Code. Now, Mr. Chairman and Members of the Board, this is very important because cumuli and indisputably that's not correct. The Code defines what a multiple dwelling is and a multiple dwelling is a building with three or more dwelling units which absolutely has been said over and over again, is not what the applicant is looking to building. This is what Dr. Koppelman says about Mr. Emilita's analysis. He says, upon closer scrutiny the reason for Mr. Emilita's attempt at statutory Alco my as the affidavit says, becomes clear. Without this, under his theory the applicant can building only one two-family house but may multiple dwelling units. Which, Mr. Chairman and Members of the Board are listed as a conditionally permitted use and we all know that a conditionally permitted use actually constitutes a legislative finding that such dwellings are in harmony with the community's general zoning plan and are not adversely affect the neighborhood. And this is exactly the position which the Building Inspector has taken in his letter to the applicant dated August 9, 2001, a copy of which is attached and I believe is already in your file. In other words, the reason why Mr. Emilita tries to change the very clear reading of what a multiple dwelling is because he understands that otherwise the absurd result is the one that the objectors are bringing forth. You can actually have multiple dwelling units on that property as a legislative determination that it fits with the character of the zoning plan and will not adversely affect the neighborhood and under their interpretation you can only have one two-family dwelling. His next objection is that one must read the Code Section we're talking about, 100-42A in the context of the entire Code. Well we all dream of that and this again highlights the flaw in Mr. Emilita's analysis because as we've discussed, in every other residential zoning district in the Town of that's AC, R80, R120, R200 and R400 there limiting language which says one-family detached dwellings not to exceed one dwelling per each lot. The Code is clear, it's consistent and it is unambiguous when it wants to limit the dwellings to only one per lot. In stark contrast 100-42A does not have such limiting language. The next objection is that according to Mr. Emilita by a coronary reasoning process, they would be required on a near application for a Building Permit, one would be allowed to build more than one two-family dwelling without reference to the dimensional requirements of the Code, the site plan requirements of the Code, without consideration of the availability of public water or public sewer and would read Section 100-42B, that's the conditional permitted use section out of the Code. Mr. Chairman and Members of the Board that quite frankly and most respectfully is flat wrong. The application that the applicant has put forth complies with all of the bulk and dimensional requirements as contended in the Code. For example if the one half acre density of the 20,000 square feet density, the applicant could construct 44 structures and the site plan only shows 27 structures. It has never showed issuance of the Building Permit prior to the availability public water or sewer or without site plan approval and the proper interpretation of this Code Section would leave those requirements unaffected this argument is nothing more than a red herring. The next objection in Mr. Emilita's analysis is that the proper interpretation would read, Section 100-42B the conditional permitted use out of the Code again, that's simply not correct. Kace has never made such a claim and there was no such Interpretation before the Board. Multiple dwellings do and would still be required to get a Special Permit or Special Exception approval by this Board. Finally, he says the legislative intent supports the Building Inspector's Interpretation as contained in the Notice of Disapproval. As we have discussed there is no need to look to legislative intent if the Code as here is Page 14,February 28,2002 ZBA Public Hearing Transcript Town of Southold unambiguous. But, you have to recall what I said before, that it is under Mr. Emilita's analysis which the absurd result would occur because you could comment in here, meet the conditions of the Special Exception which has been determined legislatively to feed within the Zoning Board of Southold Town that you could finally build one two-family house. Thus, Dr. Koppelman says that in his opinion, the relief requested by the applicant should be granted. With respect to the statutory construction analysis that Mr. Tohill discussed last time he referred to the case books on statutes and the general construction law and I would like to just re-emphasize some of the things that he said because, again, we respectfully submit that those very general, those very cannons, if they are necessary to be applied fully support the applicants position. (break in tape) First, one that Mr. Tohill did not or a rule that Mr. Tohill did not raise, is that its hornbook law, Members of the Board, zoning restrictions are in derogation of the common law property rights and must be strictly construed in any ambiguity, if there is one in the Code, must be resolved in favor of the property owner. Second, the legislative intent is to be ascertained from the words and the language used and that's McKinney's Statute Section 94, and the Code has to be read as a whole. All the parts have to be read and construed together; you must get the effect and meaning to the entire Code and to every part thereof. And that's why you must read the limiting language in Section 100- 31, the Section which talks about every other residential zoning district in the Code and compare it to the absence of such limiting language in 100-42. Second, pursuant to the General Construction Law Section 41, and the New York State Town Law Section 63 and Members of the Board this is very important because this addresses one of Mr. Emilita's arguments. A Town Board acts in each instance in one way and only one way to run affirmative vote of the majority of its members and it does not act by the opinions of its consultants or its attorneys and so this argument that the reason that Section 100-31 has limiting language and 100-42 doesn't is supposedly because a consultant wrote one section and an attorney wrote another section is absolutely irrelevant. The Town Board adopted the Code, it adopted the Code at the same time, and it adopted the Code as an integrated whole and each part of that Code must be read together and harmonized. The Sections were adopted simultaneously, and the distinction between the limiting language in the first Section 100-31 and the conspicuous absence of that same language in 100-42 was not inadvertent. Finally, when the law expressly describes a particular thing to which it should apply, like this limiting language, there is according to statute Section 240, an inference that what was admitted or it is not included was intended to be omitted or not included. That's the omission of the limiting language in 100-42, which was expressly put into 100-31. And there is an expression, it's a Latin expression, I'm going butcher it I'm sorry but I'm going to give it my best shot here, expressio unis es excusio auterios and the reason I say it is absolutely a very important rule of statutory construction and that says, when language such as a limiting language is expressly provided in the five other pertinent residential sections of the Code and not in Section Code 100-42 it was intentionally omitted and excluded from that Section. The inclusion of something in one part means that the exclusion of it in another part was intended. Also,just as Mr. Tohill said, statute Section 145 says it is presumed that the Town Board intended to map something which was reasonable and that no unreasonable or absurd result was intended from the Board and should be interpreted by this Board and that's exactly correct. It would be absurd to say that you could only build one two-family Page 15,February 28,2002 ZBA Public Hearing Transcript Town of Southold house on that lot, but you could build multiple dwellings, many multiple dwellings on that same lot pursuant to a conditionally permitted use which again, is actually a legislative determination that such is in harmony with the community's general zoning plan and will not adversely affect the neighborhood. Finally, a legislative body such as the Town Board has the right to define any word or phrase it chooses to in the statute, that Statute Section 75.B and that's what the Town Board did when it enacted Section 100-13A which reads word usage, the singular number includes the plural and the plural the singular. Not only that, Members of the Board but the General Construction Law says the same thing. It says in the General Construction Law Section 110, and you know what, the General Construction Law says that that is applicable to every statute. It says in Section 35, words in the singular number include the plural and the plural in the singular. Thus, Section 252 the section of the statute that Mr. Tohill refers to is superceded by both Code Section, Southold Code Section 100-13A and General Construction Law Section 35 and is inapplicable to this matter. Last, another phrase that Mr. Tohill used last time, he parried material. Well that's correct. When different terms are used in various parts of the statute like the Zoning Code you must assume the distinction between the terms is intended and you must read the entire Code together. Mr. Chairman and Members of the Board when you clear the smoke away we respectfully submit this application is clear and its relatively simple. The Interpretation of by the Building Inspector flies in the face of the unambiguous reading of the Code as a whole, it leads to an absurd result and it should be overturned. Thank you very much. CHAIRMAN: Any questions of Mr. Pachman before he sits down? Mr. Tohill how are you tonight? ANTHONY TOHILL, ESQ.: Good evening Mr. Chairman and Members of the Board. My first question has to do with housekeeping, and I would like to know whether Miss Oliva and Mr. Orlando have a copy of the package that I presented at the last meeting and if they don't, I did knock down a cherry tree this afternoon and I have two more packages that I'm ready to hand them up right now. MEMBER TORTORA: Its not necessary, the Board Members have familiarized themselves with the full record, have ready all the transcripts, have read all the record including the handups that you presented at the last hearing. ANTHONY TOHILL, ESQ.: I'm asking as a courtesy from me to the Members of the Board whether or not they have separate copies of all the packages that I handed up. Is the answer yes? CHAIRMAN: I do not Mr. Tohill. You did not give me one, you gave one for the record, and I was reading in the office on Saturday morning, so I would love one. ANTHONY TOHILL, ESQ.: Okay. CHAIRMAN: Thank you sir. Page 16,February 28,2002 ZBA Public Healing Transcript Town of Southold MEMBER TORTORA: We were so conscious about this that we gave the Chairman's file to the members. ANTHONY TOHILL, ESQ.: Let me bring this back to a context that is as practical as I can make it practical. (microphone adjustment) that got us here to the Zoning Board of Appeals. Each of those four Building Permits recites the intended use of the property. Not my language, it's the applicants language, multi-family use as per approved site plan; two different concepts. We're here because the Building Inspector denied the application for Building Permits, not recipes for chili contests, Building Permits. That means that if the Building Permits are issued, bulldozers go there and they start building buildings. But buildings that they build, according to the applications that are the only records before the Town, four of them, are multi-family use as per approved site plan. So that's the first point. Second, how many two-family houses are you allowing that you draft the relief requested. Don't all answer at once because you may speak in four different tongues, and in fact, if Matt Pachman and I are given a chance to speak, we may raise it to six and if we give everybody in the audience a chance, we may raise it to a infinite number and the reason is, there is no number, there is no number at all. Nobody knows the number. However, if you deal with this on the level of abstraction that was offered to you as the path to redemption by the applicant's attorney here this evening, you have to appreciate that you are going to allow a Building Inspector, you are authorizing the Building Inspector to issue four Building Permits for an unknown number of multi-family use as per approved site plan. However, you do know that there is a site plan, the 1983 site plan, you do know that that site plan became invalid in 1985 under Local Law 11 of 1985, it was enacted twice. You do know that that site plan became dead again, more dead than it was under Local Law 11 of 1985, under Local Law 1 of 1989 because the Town Board again changed the district to HD then light residential, multi residential and increased the density so that that as per approved site plan that was now sent to you four times because it says so four times in the site plan application, is no approved site plan. So, if that's the way it's going to be handled then the level of obstruction is no rule out of this, that means that everybody in this town who has a single-family residence in a single- family residential district, you just read one hell of a Code. In fact any place that there's a number you read it out of the Code and the reason is none of us knows what the number is as a matter of fact. That's why this whole argument is what I told you the last time holding up meets the mischief that you have here is that you're going to encourage not to read all of Chapter 100. Never see that presentation with a straight face before any agency, I cannot imagine what it would be like in this Court of law to say to a judge, judge don't read all of the law, don't go to law school for three years, go to law school for one week. Its much more economical, you'll start earlier, you will make more money don't waste your time spending those additional three years or whatever it is in school. Here you are actually being encouraged to hang a premium, a premium on ignorance don't read Section 250 of Chapter 100 that says you can't have this land use without site plan approval. I want to ask you also; you solicited the opinion of your Planning Board in the document that I handed up, the booklet that looks like this. That document is Exhibit Z, the last letter in the alphabet. It's a September 22, 2001 memo from the Chairman of the Planning Board. He's either taken leave of his senses altogether, lost all track of any understanding of land use or he made an error, an u Page 17,February 28,2002 ZBA Public Hearing Transcnpt Town of Southold absolutely terrible error. He said to you that this application, these applications, we're going with can't perceive. He said because there's no site plan approval. He said it needs SEQRA review, he said it needs Suffolk County Power Commission approval. He says it needs Suffolk County Health Department approval; he says it needs Suffolk County Department of Public Works approval; he says it's not for the use that was approved in 1983. He says it's for a different project from the approved site plan, as per approved site plan. He has not taken leave of his senses. He's speaking in complete sense. This is an application for four Building Permits. Understand the implications of what you're being asked to do. You're being asked to direct the Building Inspector, to authorize the Building Inspector to approve those Building Permits. When Mr. Pachman argued to you, don't look at anything else, that encourages you to be embarrassed in front of many of us who have nothing but respect for this institution and for each of you. Because if you were ever to buy into that line, can you imagine what would happen in the weeks ahead at Mike Verity's desk. We don't know what was approved, we can't it; when he wrote the denial letter he had no obligation to act as a lawyer, he had no obligation to send to you a memorandum of law, which by the way was left with you this evening as if I were alone with the Chairman, chicken liver, he doesn't get a copy of anything and I don't even get a response to what I spent all that time writing. I assure you that when this case, if it ever does, get to a court of law, we will not be hearing the argument that you heard as the whole presentation seeking by the applicant. Don't read the entire book, you'll get confused, it has nothing to do with anything, just handle one section. Thank you. CHAIRMAN: Mr. Tohill you did get a copy of Mr. Pachman's response, did you not? ANTHONY TOHILL, ESQ.: I'm sorry? CHAIRMAN: You did get a copy of Mr. Pachman's response? ANTHONY TOHILL, ESQ.: You mean this copy of this Affidavit? CHAIRMAN: Yes. ANTHONY TOHILL, ESQ.: I just got it here this evening, I haven't read it and I am going to ask as you offered before to respond. MATTHEW PACHMAN, ESQ.: Mr. Chairman, I apologize did I a copy of Memo of Law to Mr. Tohill I didn't, I apologize. ANTHONY TOHILL, ESQ.: I have nothing except the copies of . When was it handed in? CHAIRMAN: Just now. ANTHONY TOHILL, ESQ.: Oh, I didn't see you hand that in. Page 18,February 28,2002 - ZBA Public Healing Transcript Town of Southold MATTHEW PACHMAN, ESQ.: Did I get it up to the Board? MEMBER TORTORA: A Memorandum of Law from you? MATTHEW PACHMAN, ESQ.: Yes, the Memorandum of Law. MEMBER TORTORA: No, we have the Affidavit of Mr. Koppelman. MATTHEW PACHMAN, ESQ.: Mr. Chairman, I am handing up copies of the Memo of Law, I apologize. I thought I had and I'm giving a copy to Mr. Tohill. If I might briefly respond to Mr. Tohill's statements because I feel as if Mr. Tohill, for whom I have great respect, didn't hear the arguments that I was making; indeed it is the opposite of his claim. You must, in fact, read the entire Code. Now, Mr. Chairman and Members of the Board, I continue to say what I said at the last meeting, and what I said at the meeting before, because it doesn't matter how many times the opposition makes the claim, there is only one issue and one issue alone before this Board and that's the Interpretation, excuse me, the Notice of Denial it is the amended Notice of Denial of the Building Inspector dated August 13, which denied the application on one ground. The reason why I didn't comment on Mr. Tohill's Memorandum of Law but I will now; because that Memorandum of Law whether its contents are right or not right, whether I would agree or would not agree, talk about issues which are absolutely irrelevant to this application because that entire memorandum of law deals with whether the 1983 site plan is still valid. And Mr. Chairman and Members of the Board, I'll say it for the third time tonight, maybe for the tenth time during this entire application, that's not the issue before the Board, that's not the issue that the Building Inspector denied the application on, this Board has a limited jurisdiction, it is to interpret and review the determination of the Building Inspector as contained in that August 13th Notice of Disapproval and that is the only issue and that is the only jurisdiction of the Board. MEMBER TORTORA: I have a question for you Mr. Pachman? MATTHEW PACHMAN, ESQ.: Sure. MEMBER TORTORA: Mr. Tohill suggested that there are four Building Permit Applications. For the record, have you or have you not withdrawn all prior applications before this Board? MATTHEW PACHMAN, ESQ.: Yes, other than the one that led to the August 13th denial from the Building Inspector. MEMBER TORTORA: Have they all been formally withdrawn as a matter of record? MATTHEW PACHMAN, ESQ.: Well, I believe they have because I believe that in the file we have a MEMBER TORTORA: We have correspondence, yes. • Page 19,February 28,2002 ZBA Public Hearing Transcript Town of Southold MATTHEW PACHMAN, ESQ.: correspondence. They absolutely have it, there is correspondence to the Building Inspector, and if there's any ambiguity, we will continue to say it, we'll say it today, we'll say it later on if the Board wants; there is one Building Application which is before the Town at this point, it was the one that led to the Notice of Disapproval in August 13th, it was the one that was the basis of the amended Notice of Disapproval and the one that we are before here today. MEMBER TORTORA: Okay, for the sake of time could we wrap this up so and we would like to close this hearing tonight. CHAIRMAN: No we're not closing it, we're closing it to verbatim only. - MEMBER TORTORA: Exactly. CHAIRMAN: What we're requesting is from Mr. Tohill is approximately ten day response. MEMBER TORTORA: Ten days, both of them. CHAIRMAN: Yes, and a ten-day response from Mr. Pachman. MEMBER TORTORA: Both of you, ten days. CHAIRMAN: That puts us at the 21st meeting. ANTHONY TOHILL, ESQ.: Let's do a quote, ten days from today and be done with it. CHAIRMAN: Well because ANTHONY TOHILL, ESQ.: It'll go on and on and on and on. MEMBER TORTORA: No ten days for both of you, not ten days for you and ten days for him. ANTHONY TOHILL, ESQ.: That's exactly what I'm saying. MEMBER TORTORA: Ten days for both of you at the same time. MATTHEW PACHMAN, ESQ.: Then I may receive his on the tenth day, you know ANTHONY TOHILL, ESQ.: I'll hand deliver it. MEMBER TORTORA: In fact, we will all receive the same information on the same day. Page 20,February 28,2002 ZBA Public Hearing Transcript Town of Southold ANTHONY TOHILL, ESQ.: Exactly. MEMBER TORTORA: But we can't go back forth, with you responding to him and you to responding to. There's more than sufficient evidence on the record at this point, for this Board to make a determination. Make your closing statements; let's be done with it. ANTHONY TOHILL, ESQ.: I agree, goodnight Grace. CHAIRMAN: Trust me it's not going to happen. ANTHONY TOHILL, ESQ.: So ten days from today? MEMBER TORTORA: Correct. MATTHEW PACHMAN, ESQ.: As I understand it, if Mr. Tohill hand delivers this to me on the ninth day, then I have a day to respond? CHAIRMAN: No, that is not correct. MEMBER TORTORA: You both have ten days. ANTHONY TOHILL, ESQ.: Jerry, let's do a Monday; what's a Monday, not this coming week but the following week? Does anybody have a calendar? The 11th? March 11th, everybody submits on that day and that's it. MATTHEW PACHMAN, ESQ.: That's precisely what the Chairman is not saying; normally the applicant has the last word because it's the applicant's application. CHAIRMAN: We'll give everybody until the 15th. ANTHONY TOHILL, ESQ.: Okay, the 15th and that's it. CHAIRMAN: Right. If there's any problem Mr. Pachman, let us know. Please remember before you two gentlemen leave that we will be closing the hearing on the 21st. MATTHEW PACHMAN, ESQ.: Thank you Mr. Chairman and Members of the Board. (break at 8:05) CHAIRMAN: For the people who have not been before the Zoning Board of Appeals, we do have another member who is a Fishers Island Member who comes over religiously for every Regular Meeting, this is a Special Meeting, which we quite honestly don't have Public Hearings at. And I'll make a motion going back into Public Session. 8:10 p.m Appl No. 5051 — CLIFF AND PHIL'S LOBSTER HOUSE/RESTAURANT — Based on the Building Department's Notice of Disapproval issued November 13, 2001, v ,I/Ilii APPEALS BOARD MEMBER'_ sy �������VFF®(�= ' ��� pG Southold Town Hall Gerard P. Goehringer, Chairman ����_0tt: 53095 Main Road Lydia A. Tortora y P.O. Box 1179 George Horning �s• Prl Southold,New York 11971-0959 Ruth D. Oliva 4' 0�� ' ZBA Fax(631) 765-9064 Vincent Orlando \.O,( jig �►°pTelephone(631)765-1809 •�'' http://southoldtown.northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD Prep. 2/14; upd. 2/20 AGENDA SOUTHOLD TOWN BOARD OF APPEALS THURSDAY, FEBRUARY 28, 2002 6:30 p.m. I. STATE ENVIRONMENTAL QUALITY(SEQRA) REVIEWS/RESOLUTION(� "6 �`� �� 1 f'me) II. POSSIBLE DELIBERATIONS/DECISIONS (carryovers from prior calendar): Appl. No. 5063 VICTOR RUTKOWSKI. This is a request for a Variance under Zoning Code Section 100-244B based on the Building Inspector's November 30, 2001 Notice of Disapproval. The applicant proposes an addition to the existing dwelling with a front yard setback of less than 40 feet. Location of Property: 340 Theresa Drive, Mattituck; Parcel 115-13-22. Appl. No. 5055 -VINCENT O'NEILL— This is a request for a Variance under Zoning Code Section 100-244B based on the Building Inspector's May 1, 2001 Notice of Disapproval. The applicant is requesting approval of the location of an existing (deck) addition with a side yard setback of less than 15 feet. Location of Property: 3500 Cox Neck Road, Mattituck; Parcel 113-8-1. Appl. No. 5067 — CHRISTOPHER and IRENE VITTI. This is-a request for a Variance under Zoning Code Section 100-30A.3 based on the Building Inspector's December 4, 2001 Notice of Disapproval. The applicant proposes additions and alterations to the existing dwelling with a rear yard setback of less than 50 feet. Location of Property: 11805 Soundview Avenue, Southold; 54-5-45.9. Appi. No. 5070—ART SAFALOW. This is a request for a Variance under Zoning Code Section 100- 33 based on the Building Inspector's December 21, 2001 Notice of Disapproval. The applicant proposes to locate a garage partly in the front and side yards, rather than a rear yard. Location of Property: 737 Old Wood Path, Southold; 87-1-23.4. Appl. No. 5062 -JOHN &ANNEMARIE CURTIN. This is a request for a Variance under the Zoning Code, Section 100-244B, based on the Building Inspector's November 27, 2001 Notice of Disapproval. The applicants propose additions and alterations to dwelling with a setback at less than 35 feet from the front property line. Location of Property: 745 East Road, Cutchogue; 110-06-13. Thomas Heine, Architect. Appi. No. 5057 - DAVID & TRISH HOWE. This is a request for a Variance under Zoning Code Section 100-242A based on the Building Inspector's November 16, 2001 Notice of Disapproval. The applicant proposes an addition and alterations to the existing dwelling with a front yard setback of less than 40 feet. Location of Property: 90 West Dr., Cutchogue; 1000-110-5-45. Garrett Strang, Architect. Appl. No. 5059 - JOSEPH AND BETH CASTRONOVO. This is a request for a Variance under the Zoning Code,Section 100-244, based on the Building Inspector's October 25, 2001 Notice of Disapproval. The applicants propose a second-story addition to the existing dwelling with a setback at less than 10 feet on one side (with a 23 ft. total for both side yards) and setback at less than 35 feet from the front property line. Location of Property: 250 Wesland Road, Southold; 1000-59-2-20. Cannella Associates, Arch. Page 2—Agenda February 28, 2002 Public Hearings Southold Town Board of Appeals Appl. No. 5065 - PETER & MARIA NICOVIC. This is a request for a Variance under Zoning Code Section 100-33 based on the Building Inspector's August 16, 2001 Notice of Disapproval, for approval of the existing location of an as built deck, near the existing deck. The new deck is considered an accessory structure, which is located partly in an area other than the required rear yard. Location of Property: 505 Miriam Rd., Mattituck; 1000-99-1-35.1. William Amato, agent. (Also, letter received from Wickham,Wickham & Bressler requesting a postponement for attendance at a later date.) Appl. No. 5066 — POSILLICO CONSTRUCTION. This is a request for a Variance under Zoning Code Section 100-33 based on the Building Inspector's December 7, 2001 Notice of Disapproval. The applicant proposes to locate a garage in an area other than the required rear yard. Location of Property: 3040 Kerwin Boulevard, Greenport; 1000-53-444.35. (Also see possible Amended Notice of Disapproval for change in yard identification due to modified location of new dwelling closer to the front line.) Appl. No. 5069 — HOLLY VESCOVI. This is a request for a Variance under Zoning Code Section 100-33 based on the Building Inspector's Notice of Disapproval, concerning a portion of the existing chimney which extends into the 10 ft. side yard setback limitation. Location of Property: 370 Rocky Point Road, August Acres, Section I, Lot 33, in East Marion; 31-2-24. Lynch Homes. Appl. No. 5054 - JOHN & PATRICIA STACK. This is a request for a Variance under Zoning Code Section 100-33 based on the Building Inspector's August 14, 2001 Notice of Disapproval. Applicants propose to relocate an accessory structure (shed)to a front yard area. This property has two front yards and two side yard designations. Section 100-33 requires a rear yard location. Location of Property: 7650 Nassau Pt. Rd., Cutchogue; 1000-118-3-4.1 Appl. No. 5056 - GEORGE S. CAMBOURAKIS. This is a request for a Variance under Zoning Code Section 100-244 based on the Building Inspector's November 16, 2001 Notice of Disapproval. The applicant proposes an additions and alterations to the existing dwelling with a front yard setback of less than 40 feet at 200 Cedar Drive, East Marion; 1000-22-1-3 and 4. Appl. No. 5060 — RUTH ANN BRAMSON. This is a request for a Variance under Zoning Code Section 100-30A.3 based on the Building Inspector's December 7, 2001 Notice of Disapproval. The applicant proposes additions and alterations to the existing dwelling, and the building permit application was disapproved for the reason that the height is three stories instead of the Code limitation of 2'/2 stories. Location of Property: 12042 Main Road, East Marion; 31-14-4.5. Patricia Moore, Esq. Appl. No. 5058 - PETER&VAL LEONIAK—Area variances 1) lot sizes, 2) garage location. This is a request for Variances under Zoning Code Sections 100-30A.3 and 100-31, based on the Building Inspector's November 29, 2001 Amended Notice of Disapproval. The applicant proposes Parcels 1 and 2, each with less than 40,000 sq. ft. in size. Parcel #1 will also contain less than 125 ft. of lot width (frontage), and includes the existing accessory garage on a lot, presently vacant and without a principal use. Location of Property: 2040 Pine Tree Road, Cutchogue; 98-1-15, 16 and 17 (approx. 1.5 acres as exists). William Goggins, Esq. Appl. No. 5064 - MARY LEONARDI. This is a request for a Variance under Zoning Code Section 100-244B based on the Building Inspector's December 5, 2001 Notice of Disapproval. The applicant proposes a new dwelling with a rear yard setback at less than fifty (50)feet. Location of Property: 1285 Reydon Dr., Southold; 80-2-15.1. Proper-T Services, Inc., agent. 's Page 3—Agenda February 28, 2002 Public Hearings Southold Town Board of Appeals III. PUBLIC HEARINGS: 6:45 p.m. Carryover Hearing) - Appl. No. 5034 — RUST FAMILY PARTNERSHIP. Interpretation and/or Relief for Addition with setback variances from front lot line and bulkhead, at 4680 Wunneweta Road, Cutchogue; 111-14-34. R. Lark, Esq.for the applicant; P. Moore, Esq. (for J. Cella). 7:15 p.m. Appl. No. 4927 — KACE LI, INC. (Carryover from January 24, 2002.) This is an Appeal requesting Reversal of the Building Inspector's Notice of Disapproval dated August 13, 2001, which disapproval denied an application for a building permit for two-family dwellings under Article IV, Section 100-42A.2. The reason stated in the Notice of Disapproval is that the proposed project indicates several two-family dwellings on a single parcel, and that the Code allows only one such structure per lot as a permitted use. Zone District: Hamlet-Density (HD). Location of Property: South Side of North Road or C.R. 48, 500+- feet east of Chapel Lane, Greenport; Parcel 40-3-1, now or formerly referred to as "Northwind Village"site. M. Pachman, Esq; A. Tohill, Esq. 7:45 p.m. Appl. No. 5051 —CLIFF AND PHIL'S LOBSTER HOUSE/RESTAURANT. Based on the Building Department's Notice of Disapproval issued November 13, 2001, amended November 14, 2001, applicant is requesting: (a) an Interpretation under Article XXIV, Section 100-243 to Reverse the Building Department's determination which stated that the proposed addition/alteration to an existing restaurant establishment is not a permitted use in the residential R-40 District, or alternatively a Variance under Section 100-243A authorizing the proposed addition to the existing restaurant, a nonconforming use in a nonconforming building; and (b) a Variance under Section 100-244B to locate the proposed addition maintaining the same nonconforming setback at less than 35 feet from the front property line; and (b) a Variance under Section 100-244B for a total lot coverage in excess of the code limitation of twenty (20) percent of the total lot area. Zone District: R-40 Residential. Location of Property: Corner of the East Side of Kenney's Road and the south side of North Sea Drive, Southold; County Tax Map Parcel 1000-54- 5-22. George Tsunis, Esq. IV. OTHER POSSIBLE DELIBERATIONS/DECISIONS on the following applications: Pending Applications (list those carryovers from prior calendars; hearings concluded). V. RESOLUTIONS/UPDATES/OTHER: A. Resolution to authorize advertisement of new applications (deemed complete as of advertising deadline for: a) February 28, 2002; b) March 14, 2002; c) April 11, 2002 calendars). B. Discussion regarding Inspections of Assigned Files in complete form. V. EXECUTIVE SESSION (if applicable). OFFICE OF ZONING BOARD OF APPEALS 53095 Main Road Southold, NY 11971 Email: Linda.Kowalski(a�Town.Southold.ny.us or Paula.Quintieri(a�Town.Southold.ny.us http://southoldtown.northfork.net (631) 765-1809 fax (631) 765-9064 FAX TRANSMISSION FAX# 7a7- 433( ATTN: (/ii 4.0 A /& DATE: / 0)S/2002 REF: iii >P„ MESSAGE: - I_ r -r-✓ I Please feel free to call if you did not receive all sheets. Town Hall hours are between 8 and 4. Thank you. Pages to follow. RANSMISSION VERIFICATION REPORT TIME : 02/25/2002 10:48 DATE.TIME 02/25 10:46 FAX NO./NAME 7276336 DURATION 00:02:31 PAGE(S) 04 RESULT OK MODE STANDARD ECM Page 12,January 24,2002 ZBA PUBLIC HEARING TRANSCRIPTS Town of Southold CHAIRMAN: Thank you. Is there anybody else that would like to speak for or against this application? Seeing no hands I'll make a motion closing the hearing, and reserving decision until later. End of hearing. SEE MINUTES FOR RESOLUTION * * * 7:18 p.m. (Carryover Hearing) — Appl. No. 4927 — KACE LI, INC. This is an Appeal requesting Reversal of the Building Inspector's Notice of Disapproval dated August 13, 2001, which disapproval denied an application for a building permit for two-family dwellings under Article IV, Section 100-42A.2. The reason stated in the Notice of Disapproval is that the proposed project indicates several two-family dwellings on a single parcel, and that the Code allows only one such structure per lot as a permitted use. Zone District: Hamlet-Density (HD). Location of Property: South Side of North Road or C.R. 48, 500+- feet east of Chapel Lane, Greenport; Parcel 409-3-1, now or formerly referred to as "Northwind Village" site. CHAIRMAN: Mr. Pachman, is there anything that you would like to start out with? MATTHEW PACHMAN, ESQ.: Mr. Chairman, Members of the Board,just briefly, last time we were here which I believe was November 15th, Mr Tohill asked for additional time to make a presentation. We had the original, our presentation, on September 20, if I can remember it correctly. I did have an opportunity to speak, bnefly, with Mr. Tohill yesterday and he indicated that he was prepared to make a presentation, but yesterday was not yet at liberty to discuss what that was going to be with me, which is fine of course. I mentioned to the Board on November 15th meeting that I may very well have to as at the end of Mr. Tohill's presentation for additional time to consider and respond and I will just ask that the Board, if that occurs that we not be required to come back a third. When we were here originally I think you said September 20th and then November 15th, but simply to have a written submission in response to Mr. Tohill's presentation. So that would probably be my request at the end of the Interpretation tonight. CHAIRMAN: Okay just let me say this to you, if that's the case, we would then close the hearing as a matter of fact on February 28th, at that special meeting. Assuming that the paper trail went back and forth to that point, and if you so choose that you would rather say something at that time, I have no objections to your coming here on February 28th, and doing it verbally also; as long as we shorten it up a little, because we would really like to wrap this up. MATTHEW PACHMAN, ESQ.: And as would we, thank you so much. CHAIRMAN: Mr. Tohill? ANTHONY TOHILL, ESQ.: Good evening Mr. Chairman, Members of the Board. I told Matthew Pachman yesterday that whatever time he needed, I consented to, and that's no Page 13,January 24,2002 ZBA PUBLIC HEARING TRANSCRIPTS Town of Southold problem. I would like to present our position this evening in two part; the last part would be me, and I will be surprisingly and somewhat atypically and mercifully I think, very brief. CHAIRMAN: It's hard to believe. ANTHONY TOHILL, ESQ.: It is hard to believe, but that's why I was giving you that distant early warning, because I know I would ease you into that understanding. I've done what you suggested to another gentleman. I've put everything in writing, so we'll just hand it up later on and give Matthew a copy of everything, and so it will be an opportunity for people, if they wish to read what we have. So that will be the last part of it. The first part is, that I asked the person who is, by general reputation, largely responsible for the text of Chapter 100 Zoning Ordinance to be present here this evening, he seats to my left, his name is David Emilita. For those who've been here for a long time, he was practically living in this building prior to January 10, 1989, when Local Law , #1 of 1989 was enacted. Some of the people who are here this evening, were here back then, and they don't know what happened during the years preceding January 10, 1989, and they don't know what happened on that day, or at least they won't know what, the way in which he as an actual participant in those proceedings would know. So I've asked him to aggress the issue that has been presented by Mr. Pachman in this application to the Board, and I'm going to ask David to address it. When he finishes, if you have any questions, these have to be answered and he is then going to leave because like so many people, he does what he does for a living, he is a professional planner. He has another reason, and another Board, in another municipality this evening that he will be engulfed with. So with no further a due I present Mr. Emilita. MATHEW PACHMAN, ESQ.: Mr. Chairman,just before we go, I just state that I need to note my objection before we proceed. Local Law #1 of 1989, as we all know was adopted by the Town Board and says what it says, and I don't think that it's appropriate to have someone who, in fact was not even a member of that Town Board, giving a discussion about anything that led up to it. Indeed we know that the Town Board operates by an adoption of a resolution and that speaks for itself, so let me just note my objection. I'd ask the Board if it is going to permit the testimony of Mr. Emilita that you note the objection. CHAIRMAN: Thank you. So noted. Mr. Emilita, we have to swear you in. Would you kindly raise your right hand, do you solemnly swear the information you are about to give us is the truth to the best of your knowledge? DAVID EMILITA: (Raising right hand, responded) I do. Good evening ladies and gentlemen, my name is David Emilita. I have an opportunity to hand up and I also have a summary of what I'm going to say, so if for some reason you're unable to follow, or you want to refresh your memory tomorrow, this little table says it all. MATTHEW PACHMAN, ESQ.: Mr. Chairman, I ask if he has one for me also. Page 14,January 24,2002 ZBA PUBLIC HEARING TRANSCRIPTS Town of Southold DAVID EMILITA: For those of you who don't know me, I'm a certified, practicing professional planner. I have a Master's Degree in Planning. I'm a charter member of the American Institute of Certified Planners, which is the national, professional accreditation organization for my profession. I served as consulting Town Planner for the Town of Southold in the Spring of 1984 to the end of 1989. I authored the Generic Environmental Impact Statement that was prepared prior to the adoption of Chapter 100 Local Law of 1989. As Mr. Tohill said, I prepared and wrote several sections of this Code, so I am quite familiar with the proceedings that took place in the development of the local law. I would like to state the chronology with reference to the appellant's site plan. In fact, relate to the zoning and the conditions that apply to that site plan. In 1983 the Kace LI premises that existed in Zoning District M Light Residence, and in that District, multiple dwellings were a permitted use under Section 42A.2, Chapter 100-42A.2. Density was allowed at one unit per 6500 square feet of public water and sewer, and when none was present, the density was one unit per 9000 square feet; that was in 1983. CHAIRMAN: This was prior to the adoption of the Code in 1989? DAVID EMILITA: Correct. CHAIRMAN: Do you have an objection to that? MATTHEW PACHMAN, ESQ.: Mr. Chairman, I don't mean to keep interrupting but we had a very long colloquy, it seemed to me, on November 15th, and I thought the Board made very clear what the focus of this hearing was. And to agree that Mr. Emilita opining about site plans and things like that I just don't understand why that would be relevant to the issues before the Board here tonight. CHAIRMAN: That's one of the reasons why we ask counsel to come, ok. (Changed tape to side B) TOWN ATTORNEY GREG YAKABOSKI: Mr. Emilita, I believe that the issue is, under the current Code as written paragraph 100-42A and what Mr. Pachman applied for was a two-family dwelling,but more than one structure. I think what- ANTHONY TOHILL, ESQ.: One two-family dwelling on one lot. Not more than, not what you say, he garbled it. TOWN ATTORNEY GREG YAKABOSKI: And I'll try to ungarble it. The issue on a single lot in the Town,under Section 100-42A.2, can you put more than one structure on that lot, which is a two-family dwelling? And I believe that it's up to the Board but it gets totie into that issue. I think what Mr. Pachman was raising was that's not going to tie into that issue, is the concern. ANTHONY TOHILL, ESQ.: Can I just rephrase that, that's as a permitted use,under 100-42A.2,may one have more than one two-family residence on one lot as a permitted Page 15,January 24,2002 ZBA PUBLIC HEARING TRANSCRIPTS Town of Southold use, nothing more. Don't look at another Section of the Code. That's what you're asking him. That's what Matthew Pachman is saying, is the position, the only issue that is before the Board. MATTHEW PACHMAN, ESQ.: With all due respect, Mr. Tohill, CHAIRMAN: Could you use the microphone, please, Mr. Pachman, I apologize, Sir. MATTHEW PACHMAN, ESQ.: With all due respect, Mr. Tohill, that's not our position. We did say that not to look additional provisions of the Code. ANTHONY TOHILL, ESQ.: Then why wouldn't the speaker be allowed to continue to speak? He's trying to address that. MEMBER TORTORA: Mr. Tohill. Can you take a moment. Board Members, I'm willing to listen to Mr. Emilita testimony if he can show relevance, that's my position. CHAIRMAN: Does anybody have any objection to that? MEMBER COLLINS: No. (No objections from the Board Members.) CHAIRMAN: Okay, we have four people that kind of a agree with you, so we're going to let you go. DAVID EMILITA: I'll try to be too historical; I will get to the point. If Mr. Pachman so wishes to examine. In 1985 the Town Board changed the density in the M Light District to multiple dwellings raising it to 10,000 square feet per dwelling unit where public water and service were provided, and 20,000 where it wasn't. Change the density on plans that didn't have vested nghts. Something happened. January 10, 1989, the Town Board adopted Local Law #1, Chapter 100. As I said, I prepared the GEIS for this. The density adopted in 1985 for the M-Light Residence District was carried over into the approval end district, Hamlet Density. His premises was now zoned Hamlet Density when it was changed then. By the way, the requirement for site plan approval from the Planning Board remained the same. It did not change. Additionally in 1989, the Town Board revised the site plan review section and among the revisions it made in Section 255 would provide for three-year duration for an approved site plan. In other words if site plan was approved prior to January 10, 1989, the adoption of Chapter 100, but had not expired and continued to be valid, they would allow vesting, in other words construction without some physical action in reliance on that approval, then the site plan approval remained valid for a period of three years from the adoption of Chapter 100, or until January 10, 1992. Those dates should be important in your deliberations somewhere. In no event was it the Town Board's first intention of 1989 to exempt prior site plans from the effect of the density reduction of 1985 law, which reduced the density in the M-Light District. If they lost their vesting, if they lost their approval, and they're not the same Page 16,January 24,2002 ZBA PUBLIC HEARING TRANSCRIPTS Town of Southold density, then that's it; they were dead. In 1985, stepping back to that Local Law again, the Town Board did not add a duration period for plans approved prior to that period. In other words, if a site plan had been approved for example in 1983 and did not pursue vesting, it wasn't protected from the re-zoning. In 1989 or in a deliberations that I attended, did the Town Board ever express an intention to use Section 255 to resurrect any site plan that did not remain valid. If it didn't, it wasn't. Now let's look at Section 42A. Section 42A permits one one-family dwelling under permitted uses and one two-family dwelling, as permitted uses; multiple dwellings are permitted by Special Exception with site plan approval. One cannot achieve more than one one-family dwelling or two-family dwellings without achieving a Special Exception or without achieving a site plan review. It cannot be done. If I hear arguments, we'll elaborate on this. One is required to read Section 42A.2 or any part of the zoning code for that matter in the context of the entire ordinance. If one were to argue that 42A.2 should actually be read to allow more than one two-family dwelling as a permitted use without site plan or Special Exception approval, in other words simply apply for a Building Permit and feel that one should be entitled to the issuance of a Building Permit then one would essentially throw away that exception, one would be entitled to a Building Permit without reference to minimum lot area, without reference to density, without reference to parking requirements, without reference to Section 250 which is extremely important in this case and I'll get back to that; without reference to any other considerations or site plan review under Section 252 for Special Exception standards and Section 263 or with the availability of Public Water and Sewer. The mere issuance of a Building Permit doesn't allow all that review. So clearly that can't happen. That's not intended by the Code. The argument that the letter "s" may be inserted so that Section 42A.2 reads two-family dwellings, as I said, we'll read the next Section out of the Code; one could never, if one took that interpretation, one could never get into the deliberations that would pertain to the development of more than one dwelling on a lot. The legislative intent has got to be obvious. A single one-family residence or single two-family dwelling or for that matter the other permitted use under Section 42A.3, a single continuing care facility, is not likely to present the land use consideration that a community or approving authority must make, that a multiple one-family residential development on a single lot or a multiple two-family residential development on a single lot would require. There's nothing ambiguous or uncertain or accidental about the limitation of 42A to the singular as a permitted use, in 42B requiring Special Exception review and site plan approval to multiple uses. This dual layer regulatory approach is standard in zoning construction and is used throughout State of New York and other states in minor zoning ordinances, and yours is considered one. Relying back on to Section 13A, for rule of construction that states the singular number and quotes the plural, it also states the reverse is true but I won't get into that, is a distortion, in my opinion, of the proper use of this section. Once you only use this board usage or construction section if a meaning is unclear or ambiguous or if the legislative intent of a section is unclear to the reader, but clearly 42A 1 and 2 read the singular, one family detached dwelling, two-family dwelling; that's a singular use. One cannot use Section 13, 42A or 42B to change the legislative intent by a Page 17,January 24,2002 ZBA PUBLIC HEARING TRANSCRIPTS Town of Southold mere contrived interpretation, again referring to the singular, including the plural. In references to Section 31A.1 or 31B.1 each of which ends with the qualifying language not to exceed one dwelling on each lot isn't helpful in an effort to add plural to the uses in 42A.2. Here's a reason, a very subtle one, that gives the real reason of the difference of the language. Section 31 was largely written by the Town Attorney Bob Tasker. He had a particular style of writing zoning text. MATTHEW PACHMAN, ESQ.: Mr. Chairman, I just have to note my objection about, once again with all due respect, the Town Board operates in passing a local law with a resolution, and I would respectfully say that any of this colloquey about what a Town Attorney might have said at that time is irrelevant and should be disregarded by this Board. CHAIRMAN: Just a minute, sir. We'll let Mr. Emilita continue. Go ahead. DAVID EMILITA: Thank you. Section 31, as I said, was written by Town Attorney Bob Tasker with respect to building and zoning. Section 42 was written much later by Stuart Turner, a principal of the firm of Raymond, Parrish, Pine & Wiener, a planning consultant fine that developed the drafts of the Town of Southold Comprehensive Plan updates in the 1980's and also part of several sections of now Chapter 100, and he did, if I memory is correct, write Section 42. Suttle differences in zoning style, but the substance is clear, the consistency is clear, the meaning of the words are unambiguous. When you look at them, they mean the same from one section to the other, under permitted uses. Even though the words themselves are different, the meaning is clear, the meaning is the same, adding an 's' is a contrived use of Section 13. Finally, Section 100-13 the tern dwelling, two-family, is defined in the singular. On the same page of the Zoning Ordinance, the definitions for dwelling multiple and dwelling row or attached also appear. This is also defined in the singular. But as you set forth in 42B multiple dwellings require Special Exception and site plan approval. In summary one simply cannot add an "s" to the permitted uses in 42A because Chapter 100 is clear in stating that more than one two-family dwelling on a lot is governed by 42B and both Sections 100- 250 and 100-260. And if you will permit me, I will read the opening paragraph in Section 100-250, and this is Article 25 Site Plan Approval. "This Article, Site Plan Approval shall apply to every land use that is permitted in the Town of Southold except for single family home use on a single and separate lot as set forth in Article III, Section 100-31A1." A two-family dwelling or more than one two-family dwelling on a lot will need site plan approval by the Planning Board very simple it does, it applies. CHAIRMAN: Before you sit down - any questions of Mr. Emilita ladies and gentlemen, because he has to leave? (No questions.) We thank you, sir. Mr. Tohill, there was a question from a gentleman in the back.No? Okay. ANTHONY TOHILL, ESQ.: Mr. Chairman, Members of the Board the issue that is before you, at least as you limited it is one of upholding lawyer's language statutory construction even though a local law is not a statute, it's still called a statutory construction. And it's not uncommon, books are written about it, and in fact, those of you Page 18,January 24,2002 ZBA PUBLIC HEARING TRANSCRIPTS Town of Southold and you're all familiar with McKinneys, McKinneys has actually two books on it; one of them is Book 1 of about 115 books which is called Statutes and I'm holding that up and displaying to you right now in my right hand. And the second one is Book 21, which is called the General Construction Law, and they somewhat overlap. So I'm going to use when I calculate things here this evening, the book Statutes, only because if you look at the two, that statute that is quite a bit thicker, it's quite a bit more accurate, there's a lot more case law in the Statutes than there is under General Construction Law but they overlap in large respect. I want to go through some of the rules of construction here. There are about five or six or seven of them. And then I want to apply them, and this doesn't take very long to do that. The first rule of construction is that one does not use either of these books or the rules of construction if the meaning of a statute or a local law is already clear. In other words, if it's not ambiguous, if it's clear, if it looks like it's readable and understandable in a common sense manner, then one never goes to the rules of construction. The second is if the legislative intent, it's a separate issue, you heard Mr. Emilita just talk about it. If the legislative intent is clear, and I'm going to come back to that at the end of my presentation, if the legislative intent is clear, one does not go to rules of construction at all because the legislative intent, as Matthew Pachman has been saying up and down this evening, is the limit of the reach of your analysis. He said it over and over again. Don't look outside the Code. The third rule of construction is, you have to read the whole book as a whole; you can't cheat, you can't just read one Section or one Article if there's more than that, you have to read the whole chapter when you analyze and interpret a Code. This is universal rule, you're not allowed to avoid the rule here in Southold, or in Buffalo or in Poughkeepsie or any place else. The fourth rule you may have heard of, or you may have read about it in the Zoning text that come across your desk. It's called the rule or the concept of, and it's expressed in Latin, in Pari Materia. What it means is that when you read the Code you have to read the Sections even if they seem to be going in different directions together and consistently. It conjunctive rule together so that Section 42 may have to be read together and consistently with another section and you can't separate them out. It's not permitted under the rules that we apply. The next rule of construction is that you're not allowed to use the rules of construction to achieve a mischievous result. That's not my term. I didn't invent that word. I didn't create the decision. That's the language out of the books that I displayed to you before, mischievous result. So don't allow somebody to say you reached a corner which is mischievous relative to the intention of the legislature, if the intention of the legislature, the Town Board, Bob Tasker, Stu Turner, whoever, is already clear. The next point or the next rule of construction, when may not ready for analysis that is absurd. Now the word absurd by the year 2002 whether listening to our children or our Page 19,January 24,2002 ZBA PUBLIC HEARING TRANSCRIPTS Town of Southold peers has lost all of its meaning in the English language. It doesn't mean absurd the way a sixteen year old will say, one of our construction for them, as a child is absurd. What it means is the interpretation has to be sensible, it has to make sense in the text of the zoning ordinance. There's another one, very important. This Section 252 of the Book Statutes; the use of a singular form of a word. For example, the word two-family dwelling under Section 252 of the Book 1 of McKinneys Statutes means what, it means the singular. The use of the plural form of the word compares Sub-Section A, of Section 42 single-family dwelling, two-family dwelling, care facility all in singular with Sub-Section B all in the plural, all in the plural. And so, under Section 252 the use of the plural form of a word, for example, multiple dwellings townhouses, row or attached houses mean more than one. So that's right there in the book. The next is that rule is one of little application and construction and interpretation, little. In other words, one doesn't imagine, one doesn't change it, one doesn't graph to it, one doesn't play footloose or fancy free, it's one of literal construction. That's the law. So when a Code says that the singular means the plural and the plural means the singular, and our Code in Section 100-13A says exactly that, the first question is, do you simply use it when you want to? Can I on my lot, in the Town of Southold, where I live and have lived for many years build three or four or five single family residences. A single family residence 100-242A, 100-31, single-family residence, I can say singular means plural. Why can't I say that, and the answer is there's nothing unclear about either 31A single family dwelling or 42A single family dwelling or 42A.2 two-family dwelling, and no "s" on the end of my language. It's absolutely clear. So you never get to the rule of construction. Under 100-13A you don't need it, and so you don't get to anything except to read when it says in the Code if it's clear and it was clear. One cannot ignore all the rules of construction if one wants to elect to use 100-32A as if it were the only rule of construction. I said to you that was the Section 252 that means that there are some Sections before it, in the 100's. So one would not pick just 252 and run with that. Two more rules, if the law that you're talking about is remedial, for example, enacted to correct or address imperfections in a prior law, then that law has to be applied literally. In other words, you can't trap it, corner it or cage it and not allow it to speak or breath or have its way. You must give it its way, that's what that means. And if a law is ambiguous then it must be interpreted in that manner if it's not allowed objectionable result. I'm going to stand here and say to you that there's nothing unclear about the meaning of 42A. There is nothing unclear about the legislative intent of 42A. There is nothing ambiguous about 42A. There is nothing that is different about 42A from what we see in any Town Zoning Code that addresses this type of issue. It said if you're in the HD District it is permitted. And there's no Special Exception, no Variance, nothing just permitted, if you want one single-family dwelling or if you want one two-family dwelling on a lot you go to the Building Inspector and you get your use, unless there's Page 20,January 24,2002 ' ZBA PUBLIC HEARING TRANSCRIPTS Town of Southold another Section of the Code that doesn't allow that to happen. And son of a gun, there is another Section of the Code and you can't make it go away. That section of the Code is 250, and it says that this Article, meaning Article 25 under Section 250 shall apply to every land use. I didn't write that language, that was the Town Board's language, every land use. So, so far that would include a single family dwelling and that would include a two family dwelling. But listen, it keeps going, and it says that its permitted in the Town of Southold, that's a pretty broad statement, except the single-family home use on a single and separate lot. That's not except a two-family dwelling. So, therefore, one is required to go through site plan approval for two-family dwelling whether one wishes to do that or not. So, if one then ties together what I've read to you 32A plus 250, you can look at 260 and 262 and 263.2, because they're your business, that's Special Exception territory. And then if one looks to the density schedule and the bulk schedule you will see that at all times, since before 1985, but really starting with local law 11 in 1985, the existence of water and sewer and site plan was integrally related to the notion of having more than one of anything on a lot, including more than one two-family residence. In fact, if you look carefully at the bulk schedule and density schedule, you will see that the square footage numbers jump all over the place depending on those factors. If you look at the 1994 Hamlet Density Study prepared by our Building Department, it says that the legislative intent was to connect that type of application in the HD District to a process that included an evaluation of public water and public sewer. The Building Inspector, I assure you, does not do that, not with any discretion, and the water authority is there; and there's no sewer district. And so the bottom line that this one is not complicated at. If somebody wants more than one two-family dwelling on a lot in the Town of Southold they have to go two different places in addition to the Building Inspector. One of them is that to obtain site plan approval, and the other one is to get Special Exception approval right here. Here are my words in writing, and I have a copy for each of you. The official one is the one that's marked for Goehringer, but that's the one that I want to go into the record, and let the record reflect that I'm handing a copy of everything right now to Mr. Pachman. Everybody's copy is exactly the same, excepting that two of them are different. The one that went to the Chaimuan to go into the file maintained by the Board contained the prior to 1989 Zoning Ordinance which is an inch thick. The one that went to Mr. Pachman also contains that. The rest of them I did not knock down the cherry tree or the birch tree, I didn't Xerox that. I figured you had enough. I'm happy to answer anybody questions about any aspect of my presentation. CHAIRMAN: Mr. Homing? MEMBER HORNING: No questions. CHAIRMAN: Mrs. Tortora? MEMBER TORTORA: None. CHAIRMAN: Miss Collins? MEMBER COLLINS: No, not now. Page 21,January 24,2002 ZBA PUBLIC HEARING TRANSCRIPTS Town of Southold CHAIRMAN: Mr. Dinizio? MEMBER DINIZIO: Jerry I have some reading to do now. ANTHONY TOHILL, ESQ.: I also supplied in Mr. Dinizio's copy, a package of No-Doz from the 7-Eleven in Greenport which I expect he'll need. CHAIRMAN: Well the way it looks to me I shouldn't say this on the record; I may have the weekend off, if I don't make it to the Town Hall. ANTHONY TOHILL, ESQ.: I think you actually get three credits of continuing legal education and each of you are now, need to finish the first semester of law school if you can read all that. CHAIRMAN: Mr. Tohill, I would say that, in all due respects, it probably would make sense for us to have a short hearing on the 28th in case we have any questions regarding this. Mr. Pachman, and you certainly can reduce you so chose to, to writing. Or anything again, you want to say either orally, just in case we may have some questions. We'll keep it to fifteen minutes, we'll wrap it up at that point and then, if that's all right. We will have gotten your submission by that time also and we may have questions of you, Mr. Pachman. MATTHEW PACHMAN, ESQ.: Yes, Mr.Chairman if I may just ask when will the draft for this hearing be available? CHAIRMAN: I have no idea. BOARD SECRETARY KOWALSKI: Are you talking about the draft transcript of the statements, because that's different from Minutes. It will be available on tape tomorrow, you're welcome to have anyone come down and do a duplicate of the recording, otherwise it will take a couple of weeks. MATTHEW PACHMAN, ESQ.: Thank you. BOARD SECRETARY KOWALSKI: You're welcome. CHAIRMAN: Is there anybody else that would like to speak? State your name for the record please, Sir. HOWARD MEINEKE, NFEC: I'm Howard Meineke, North Fork Environmental Council. I was just delivering this to the desk. CHAIRMAN: Hearing no further comment, I'll recess the hearing until February 28, 2002. Page 22,January 24,2002 " ZBA PUBLIC HEARING TRANSCRIPTS Town of Southold MATTHEW PACHMAN, ESQ.: Mr. Chairman, the 'submission that was just received by the Board, I wonder if I may ask for a copy to take back to my office? CHAIRMAN: Surely. BOARD SECRETARY KOWALSKI: Do you want to take a look at it now? MATTHEW PACHMAN, ESQ.: Yes, maybe if I could just glance at it now. CHAIRMAN: I offer that as a Resolution, ladies and gentlemen. End of Hearing held this evening. SEE MINUTES FOR RESOLUTION *** r� PAGE 15-SEPTEMBER 20,2001 } ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD MEMBER COLLINS: Okay I was working from my notes, listening to you and you said you are asking for an interpretation and a reversal. I think what you wanted to say was you are asking us to reverse his interpretation of the law. MATT PACHMAN-: Maybe we are being in semantics, and I don't mean in any way, we . _, were asking for a reversal of Mr. Forrester's determination based upon this Board's inter retation of the Section of the omni Code that had been discussed here tonight-7 ope that that explains it. If it's not, I will certainly try to explain it further. But that is what we are seeking at this point. CHAIRMAN: Thank you. I just want go down on notice that we are going to set a time of 7:15 p.m. on October 4th. I want to be honest with you; I have a trial that day, so I hope I'm going to be there. I may be late. Mr. Forrester,we thank you. ED FORRESTER: It's a Thursday? CHAIRMAN: October 4th, it's a Thursday. Thank you, I wish you a safe home, because I know you're going as far as these nice gentlemen next to you. I'm just going to entertain this question from this nice lady in the back on my left and we're going to recess the hearing. Yes, ma'am. Could you just come up and use the mike. I'm sorry to put you on the spot but if I get yelled at from this nice lady sitting to my right here. NANCY FOLEY: My name is Nancy Foley. My only question now is, exactly how many houses are being built. CHAIRMAN: We really haven't gotten to that, and I'm not trying to be, but this is some of the stuff that we are referring to as fill-ins. MATT PACHMAN: Mr. Chairman, it's pursuant to the site plan that's been in effect since 1983. We're not changing the structures on the site plan in one single respect. So the number is exactly what's shown on the site plan. The amount of dwelling units will of be, it's not 108 as mentioned in the letter today, and it's half of that.of structures that had been on the siteBut structures is the exact number plan since 1983. So So it's not an indefinite number, it's the number of structures on that are on there. CHAIRMAN: Thank you. Hearing no further testimony, I make a motion recessing this until 7:15 p.m. on October 4th. SEE MINUTES FOR RESOLUTION * * * s . ___, .,., , . .4 ;.z rte j' i. PAGE 14-SEPTEMBER 20,2001 ZBA PUBLIC HEARING TRANSCRIPT iTOWN OF SOUTHOLD • gYMEMBER TORTORA: I just want to jump down to permitted uses in the HD Zone, because I'm not 100% clear on all this. In your Notice of Disapproval it says that proposed project indicates several, exact amount unknown, two-family dwellings on a single parcel, Code allows only one such structure per lot as a permitted us. I know that's true in the R80, R40, AC, RO, and MI and II. In fact that is that fact via, those exact words appear in each of those districts, but it doesn't appear in the HD. ED FORRESTER: Do you want me to respond, or do you want me to wait until the 4`h7 MEMBER TORTORA: I'm just curious as to why? ED FORRESTER: In a matter of admitting that Section of Code 100-42A, permitted uses, the office saw fit to use as singular, one family dwelling, and two-family dwelling. That is the basis for the disapproval. MEMBER TORTORA: That's true, but if you go to 100-31.A1, the exact language under that which is AC, R80, 120, 200 and 400, the permitted use is one-family, detached dwellings,plural, not to exceed one dwelling on each lot. ED FORRESTER: Yes, I'm familiar with that section; however, I wasn't dealing with that section of the Zoning Code. MEMBER TORTORA: Then there's 100-31 permitted by Special Exception, 100-31.B it says two-family dwellings not to exceed one such dwelling on each lot. ED FORRESTER: I didn't write it, I just interpreted it. MEMBER TORTORA: That's what I mean. That's why I was curious because the quality. ED FORRESTER: I understand the question. CHAIRMAN: I mean you surely don't have to give us an answer. Is that it? MEMBER TORTORA: That was the main question. r; CHAIRMAN: Thank you again. MATT PA AN: If I just may make a quick statem ent to Miss Collins. I just want to ei out that you said, that we are asking you to interpret the law and with all due respect, Miss Collins, we're not asking that. We're asking you to review Mr. Forresters interpretation of the Code as per the collo u between Mr. Forrester and a Member of th Boar ow you want to make sure that the Board understood that that what we were asking the Board to do. 104E13/01-. 14:58 NO.093 902 Y 1 P.AcHMAN & PACHMdar. P.0 ATTORNEYS 3 O VETERANS MEMORIAL. 111OtiwAY COMMAGk, NEw YORK 2 t 726, 1("" 3?T�43?b200 I' LL-��C''�`�.; (TEI g"COPlisR,c a ill 54a-2871 HowARD E n4Cpii tN I II�._ _`/�'� -(CJZ. i I mATTHEw r. PAoFimAN �`/� OCT " 32001 ill COUNSEL DAViU ELDRIDGE \ /I IfI+.RVFY B BESQShUEft DEBORAH M.kAYNOR r JosHUA M.PituzANsKy October 3,2001 VIA FACSIMILE Gerard P. Goehringer, Chairman Board of Zoning Appeals Town of Southold, Town Hall 53095 Main Street P.O. Box 1179 Southold,New York 11971 Re: Kace LI,LLC Appeal 45003 October 4,2001 Dear Mr. Goehringer: As you know,we have received copies of several letters:one of the objector,Robert E.Young,who spoke at the last meeting and another letter from Anthony B. Tohill,Esq, advising that he may be retained by another objector, Joseph Berardino, and requesting a month's adjournment so he can understand the matter propos^,d, so he can assert his purported objection(s). We feel, on behalf of our client,that it is unfair for the application to be continued tomorrow and then permit the objectors' time in which to mount their opposition. As is the usual practice, both sides should submit their cases during the same meeting and,if there are open items,they are left to be answered by further submissions. To do this any other way will also use up the time and energy of the EZA, which, I must observe, has its usual full and overflowing es.lendar. It is my suggestion that the request of the objectors and their attorney that the matter be adjourned be granted. We are advised that the next available date and time is November 15'at 5:15 p.m. We will be ready 10,(03/ 11, 14:55 NO.093 DO3 Page 2 Gerard P. Goehringer,Chairman. October 3, 2001 to proceed and believe that the objectors will have their month's adjournment and sufficient rime for their preparation. Thank you for your kind attention to this request. Very truly yours, ,1 HOWARD ''ACHMAN .f(EPiblb cc: Kace Ll',LLC James Dinizio, Jr., Board Member Lydia A. Tortora,Board Member Lora S. Collins, Board Member George Horning,Board Member r•IData\CUENT$1KANTOKOSTace{rarresocudm:6Gwahrugu l>r4.wptl I� oil g�ff0(,�c. ELIZABETH A.NEVILLE �' $>' OGS,.+ Town Hall, 53095 Main Road TOWN CLERK 4 p P.O. Box 1179 C4 2 ; Southold,New York 11971 REGISTRAR OF VITAL STATISTICS �*. /1• Fax(516) 765-1823 MARRIAGE OFFICER : y RECORDS MANAGEMENT OFFICER O= 0,1 *' ��®��•ii Telephone(516) 765-1800 FREEDOM OF INFORMATION OFFICER OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD APPLICATION FOR PUBLIC ACCESS TO RECORDS INSTRUCTIONS: Please complete Section I of this form and give to Town Clerk's Office (agency Freedom of Information Officer) . One copy will be returned to you in response to your request, or as an interim response. SECTION I. TO: �,cON//v c Q il ?F A-ibp P S (Department or Officer, if known, that has the information you are requesting.) RECORD YOU WISH TO INSPECT: (Describe the record sought. If possible, supply date, file title, tax map number, and any other pertinent information. ) Signature of Applicant: _ s • Printed Name: it)/1.4v Address: /J012.4-it ( A 1--ee,pe,a. 4 may- //941- Mailing Address (if different from above) : pO .8°, , 7) �ree� loe /(.,/ ///5SL Telephone Number: &3i- Date: /o /514/ [ ] APPROVED r`'tt.4".1 4'0 [ l APPROVED WITH DELAY* [ ] DENIED* (7) &704 (01(1-10) Elizabeth A. Neville Date Freedom of Information Officer * If delayed or denied see reverse side for explanation. -APPEALS BOARD MEMBERS ' •••g•,��FFO(,� /Ile V" COGS; Southold Town Hall Gerard P. Goehringer, Chairman ,� _ 53095 Main Road James Dinizio,Jr. y Z P.O. Box 1179 Lydia A.Tortora 0 Southold,New York 11971 Lora S. Collins 'y p� ,' ZBA Fax(631)765-9064 George Horning ��+ 00, Telephone(631)765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD 9/24 loft/ol 9 . ' AGENDA SPECIAL MEETING THURSDAY,OCTOBER 4,2001 / 3Op.n . I. STATE ENVIRONMENTAL QUALITY REVIEWS. (Pending Reviews; None at this time). II. PUBLIC HEARINGS OR RELATED UPDATES: (When possible, written testimony is requested in lieu of extensive oral testimony. Oral testimony is limited to issues properly before the Board.) 7:00 P.M. UPDATES SINCE 9/20 MEETING REGARDING: Appl. No. 4990 - NORTH BAY PROPERTIES. Possible submission for Board review of written evaluation from applicant's environmental consultant. Proper-T Services, Inc. • Appl. No. 4989-RICHARD GLUCKMAN. Possible submission for Board review of landscape and drainage plan(s)-(requested at 9/20 hearing). John Wagner, Esq. Appl. No. 4994 - ED and EILEEN MAHER. Possible submission for Board review of plan with reduced variances(requested at 9/20 hearing). Meryl Kramer,Architect. Appl. No. 4995 - PETER and VALERIE LEONIAK. Resolution to accept written information and communications and close written portion of the record. W.Goggins, Esq; Eric Bressler, Esq. 7:15 p.m. PUBLIC HEARING, continued: - Q __nod Appl. No.5003-KACE LI. INC. This is an Appeal requesting a Reversal of the Building Inspector's Notice of eS I r Disapproval dated August 13, 2001, denying an application for a building permit for two-family dwellings -1-o under Article IV, Section 100-42A.2. The reason stated in the Notice of Disapproval is that the proposed ;)5 project indicates several two-family dwellings on a single parcel, and that the Code allows only one such 6:)S0 "' structure per lot as a permitted use.Zone District: Hamlet-Density(HD); South Side of North Road,a/k/a C.R. '- 48,500+-feet east of Chapel La.,Greenport; 1000-40-3-1. III. RESOLUTIONS/DECISIONS/OTHER ACTIONS: A. Possible Deliberations/Decisions: Appl.No.4987-ELLSWORTH BAYLIS,JR. (Hearing was concluded 9/20). ,�,� ,,� -KACENI�LC. (onl iffieainj clu , r as ed apM' at�by "'� B. Resolution to approve Minutes of the following: Meeting held July 19, 2001. C. Board Resolution or other Action: Appl. No. 4864 Re: Rosen tower. ZBA ,receipt of correspondence with enclosures from William F. Bonesso, Esq. Re: Rosen tower at Mattituck. On 9/12 Appl. #4864 was returned to applicant as obsolete. Board Resolution required regarding acceptance or rejection of filing of same papers—attorney requests a public hearing. IV. EXECUTIVE SESSION (if any; at call of Chairman). ZONING BOARD OF APPEALS TOWN OF SOUTHOLD (631 ) 765-1809 FAX (631 ) 765-9064 FACSIMILE TRANSMITTAL SHEET TO:aw FROM: �/nn/h tad 4/1/L, a� 4� ZBA Office Staff 765-1809 /W� E'BRgn „fu DATE: FAX NUMBER: TOTAL NO.OF PAGES INCLUDING COVER: 411'2 ' 5�-3- �a`71 PHONE NUMBER: SENDER'S REFERENCE NUMBER: RE: YOUR REFERENCE NUMBER: �.ce_ o�% . c. / /0/ Zl3i9 ,y o URGENT 0 FOR REVIEW 0 PLEASE COMMENT❑ PLEASE REPLYD PLEASE RECYCLE NOTES/COMMENTS: it_o_ hect)e14-- 775 /S MoD a S/5 / / ex- /4-74-e--C-1?-1:74 r g• 53095 MAIN ROAD P.O. BOX 1179 SOUTHOLD, NY 11971.0959 j141)6 i � 011,477 s--, /754 I -RANSMISSION VERIFICATION REPORT ' f TIME : 10/04/2001 09:40 DATE.TIME 10/04 09:39 FAX NO./NAME 7276336 DURATION 00:01:03 PAGE(S) 02 RESULT OK MODE STANDARD ECM 0/07 /Ce P /argzet ic eta , ,,,,, ~ I. TRANSMISSION VERIFICATION REPORT '`` TIME : 10/04/2001 09:42 DATE,TIME 10/04 09:41 FAX NO./NAME 7651756 DURATION 00:01: 05 PAGE(S) 02 RESULT OK MODE STANDARD ECM �/� ,P2 �� �:...s-z) RANSMISSION VERIFICATION REPORT, TIME : 10/04/2001 09: 44 DATE.7IME 10/04 05:43 FAX NO. /NAME 5432271 DURATION 00:00:45 PAGE(S) 01 RESULT OK MODE STANDARD ECM 0/`F/-o/ At/6A/ 16,ce...- %/e.,„.4‘,4_ *.a.oza...4;- TalVat d Rear- aha-,,t) ��J - d y ' �J it r `•- • . i11i 02001 ;1 7ocvWB /'i Jam; \ Question)`s-for Town-Board-at Regular Meeting-Tuesday September 25, 2001 Robert Young-62615 North Road aka CR 48 The Southold Zoning Board of Appeals opened public hearing on September 20 on an appeal to reverse a Building Inspector's finding and determination relating to multiple housing construction on a 17 acre parcel adjoining the south side of CR 48 eastward of Chapel Lane and San Simeon. Interested persons were given notice of this appeal by certified mail postmarked September 12 and placed in post office boxes on September 13. BA allowed appellant counsel to present its case on appeal and to make various damAints part of the record without opportunity for objection or representation by counsel for interested parties and then adjourned until a special meeting to be held on October 4. Objections to adequacy of notice and the submission of documents were made and not addressed. Members of the ZBA questioned written submissions by interested parties stating that issues of road safety, inadequacy of proposed ingress/egress and density of development as well as amount of notice given were irrelevant to issues before the ZBA. The developer has proposed construction of 108 residential units in 54 buildings on a 17 acre site from which the only access is a single drive cut earlier this year entering CR 48 approximately 750 feet east of Sunset Motel. There are numerous driveways entering north side of CR 48 in this stretch of road. Visibility for traffic traveling eastward of cars exiting from development will be practically zero. Speed limit is 50 mph which most cars exceed by 20%. Double lines in center and hiking/biking lanes lined on road shoulders - are in large part ignored. If one assumes 2 cars per single residence exiting and entering daily, commercial and service vehicles, visitors etc. there will be well in excess of 750 opportunities per day for serious accidents to happen on a stretch of road where a number of deaths have occurred in the recent past. In terms of area density the Town has recently acquired through gift and purchase open space west of Chapel Lane. 54 buildings housing 108 families on 17 acres will almost certainly prevent eastward extension of this greenbelt. Any opportunity for creating a biking/hiking path eastward on this spine of land between North and Main Roads will be lost. Already speeding trucks and heavy traffic use existing hiking/biking lanes in violation of traffic laws at high speeds in order to pass on the right cars slowing and stopping for oncoming traffic before turning left into driveways along the north side. My questions for the Town Board are the following: 1) Will the Town Board appear and act in these proceedings to support and uphold the findings and conclusions of the Building Department and otherwise prevent high density residential development of 104 units on 17 acres currently zoned for 1 acre residential? 2) Have all issues of sewage and water supply been resolved and what is the position of SCWA? 3) Does the Town Board have the power to require the developer to provide access roads for traffic control and safety in place of proposed cul de sac single access? AZA' 0 1 • 4) What steps does the Town plan to take alone or in conjunction with County in • enforcing traffic laws and controlling traffic to protect all users of CR 48? Current County efforts eliminating curves at Chapel Lane will only increase traffic speed as vehicles approach this stretch of CR 48 from the west. • RE: YOUR REFERENCE NUMBER: , ❑ URGENT ❑FOR REVIEW 0 PLEASE COMMENT❑PLEASE REPLY❑ PLEASE RECYCLE NOTES/COMMENTS: C c)et-C11\\ 'eta' Gey_ ? Qv')- `o\q W • 53095 MAIN ROAD P.O. BOX 1179 SOUTHOLD, NY 11971-0959 I. 'RANSMISSION VERIFICATION REPORT TIME : 10104/2001 11:28 DATE,TIME 10104 11:27 FAX NO./NAME 7276336 DURATION 00: 01: 19 PAGE(S) 03 RESULTOK MODE STANDARD ECM RANSMISSION VERIFICATION REPORT TIME : 10/04/2001 11:12 DATE,TIME 10/04 11:10 FAX NO. /NAME 2989408 DURATION 00:01:22 PAGE(S) 03 RESULT OK MODE STANDARD ECM �, I 'RANSMISSION VERIFICATION REPORT TIME : 10/0412001 11:58 DATE,TIME 10104 11: 57 FAX NO./NAME 5432271 DURATION 00:01:19 PAGE(S) 03 RESULT OK MODE STANDARD ECM Oct.-fi2-01 02:22P P. 02 CciL4 .'43 — I AA//icewad® .,\ ANTHONYE. OHILL, P.C. /� .C ATTORNEYS AT LAW P.O. Box 1330 631-727-8383 Riverhead, New York 11901-0903 FAX 631-'727-6336 Q October 2, 2001 VI FACSIMILE: 765-9064 Chairman Gerard P. Goehringer and Member of the Zoning Board of Appeals 53095 Main Southold, NY 11971 - Re: Appeal 5003 Calendar -- October 4, 2001 at 7 :15 PM Dear Chairman Goehringer and Members : I have been retained by Joseph Berardino, a resident at 62825 Route 48, adjacent the site of the proposed Kace LI, LLC project which is the subject of the captioned application. 1 understand Mr. Berardino will be meeting with a large number of other neighbors this weekend, and I may be retained by the larger group. I have reviewed the September 20, 2001 minutes, file correspondence and an application dated August 13, 2001 . Candidly I ago unable after this review to understand how to prepare a presentation on behalf of Mr. Berardino (or the other neighbors) , and I therefore respectfully ask for an adjournment of one month to research matters starting in 1983 and coming forward to August 13, 2001 so that I can understand the issue Kace LI, LLC is seeking to present and how to represent the interests of my client at the hearing. I know that a number of people have an interest in this matter. If the Board can advise its position prior to Thursday night, I would endeavor to let neighbors know of the adjourned date. Thank you . Respectfully yours, Anthony B. Tohill ABT/lm cc (via facsimile) : Matthew Pachman, Esq. at 543- 2271 Mr. .7osoph Berardino at 753-•1005 pct-02-01 02: 21P P.01 ANTHONY B. TOHILL, P.C. ATTORNEYS AT LAW P.O. Box 1330 631-727-8383 Riverhead, New York 11901-0903 FAX 63L-727-5336 TELEFAX TRANSMITTAL SHEET Toa - Fax No: Sate - Sender -. Sent Sent. Iryits. Chairman Gerard P. Goehringer 765-9064 and Members of the Zoning Board of Appeals — --- --- - — - - --� --- cc: Matthew Pachman, Esq. 543-2271 _— --- Mr. Joseph Berardino 7753-1005 _ _-- _... ---•- FROM: ANTHONY B. TOHILL, P.C. Fax Number: 631--727-6336 NUMBER OF PACES,, INCLUDING THIS PAGE: 2 DATE: October 2, 2001 RE: Appeal 5003 Calendar -- October 4, 2001 Ft--7 : 15 PFJ ATTACHMENTS: Letter COMMENTS: A.B.T. THIS COZ4MUN.CATION MAY CONTAIN INFORMATION WHICH IS CONFIDENTIAL AND/OR PROTECTED SY THE ATTORNEY-CLIENT OR OTHER APPLICABLE PRIVILEGE. L'r IS INTENDED FOR RECEIPT AND USE SOLELY BY THE INDIVIDUALS) NAMED ABOVE. IF YOU ARE NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THIS COMMUNICATION TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISCLOSURE, DISTRIBUTION OR COPYING OF THIS DOCUMENT IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PT..EASE NOTIFY US IMMEDIATELY BY TELEPHONE AND RETURN THE ORIGINAL DOC':MENT TO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL SERVICE. THANK YOU. wir. 111F � Gerard P. Goehringer, Chairman-Board of Appeals, Southold d 1 October 2091 Southold Town Hall r �F1 iid 53095 Main Road P O Box 1179 nSouthold NY 11971 �' +® 2 2006 (Dear Chairman Goehringer: P✓ I received your letter dated September 27 in the mail over the wkend: y-statement to the Town Board was filed in writing and is on record-not the newspaper story. I acknowledge that you allowed me to be heard but the only notice that was given was inadequate both as to time and agenda. The specific issue before the Board in the Notice of Hearing was whether the appeal to overturn the finding of the Building Department should be granted. There was no legal representation from the Town present to argue in support of the ruling of its Building Department. At the outset it was announced that there would be no submission and that the matter would be held over to a special meeting on October 4. I believe that the applicant requested and the Chair then granted permission to submit documents and legal arguments amending and supporting its position which I believe is more than the specific issue stated in your letter. Also it was not so set forth in the certified mail Notice received by me on September 13. My statement to the ZBA had been prepared without knowledge of the issues thus defined. I did not see the documents submitted by the applicant until they became available at the Town Hall in the afternoon of September 26-the day following the Town Board meeting. I believe that these documents go well beyond what you state is the specific issue(i.e the precise meaning of a provision of the Zoning Code) before the ZBA. I have been scrambling since that time to organize interested parties in financing and retaining competent legal counsel to represent our interests and to determine the position of the Town in supporting the actions and findings of its Building Department. Thus while I was allowed to be heard at the ZBA hearing I had neither the time nor the information nor the-competence on the issues to make proper objections. I did strongly object to the inadequacy of the Notice of Appeal both in terms of the issues to be determined and the amount of time(6 days) given to interested persons especially in a period so shortly following the horrendous events of September)1. Some of the adjoining residents have received no certified mail notice whatever. As I write the group of neighbors and organizations I have contacted have been talking with counsel and soliciting funds to represent our interests in these proceedings. We are hoping that the Town will provide legal representation in seeking to uphold the findings of its Building Department. As you indicated at the hearing the Town Attorney has not been available in the period since the Notice of Appeal was served. We hope to have legal representation available by October 4 but undoubtedly additional time will be needed. I believe that our counsel will be writing to you directly indicating his need for adjournment. Your letter also notes that the applicant's attorney discussed the applicability of a 1983 site plan during the September 20 meeting. It is difficult to understand how a 1983 b� � I ) } conditional permit can remain valid and effective for 18 years during which time conditions have not been met, applicable laws have been amended, absolutely no site work has taken place (until a bulldozer moved considerable gravel and cut a roadway in late April of this year) and conditions relating to traffic and environment have worsened substantially in the interim. If ZBA upholds the appeal, will the ZBA remand the matter to the Building Department to make a new determination based on the ZBA decision or will ZBA make the determination for the Building Department? Another concern of mine and others relates to a single parcel on the Sound side of North Road approximately 2/3rds of one acre in size owned by the developer. This parcel is exactly opposite the 17 acre parcel being developed on the Bay side of North Road. Any determination of the ZBA should make clear that this single parcel is not part of any development plan approved for the 17 acres and cannot serve as easement, access, parking or beachfront rights to waterfront on the Sound for residents of the project. We believe that this parcel is zoned for single residence use only and for no other purpose. In your letter you urge that we come to your office to review updates entered into the file by the applicant and to advise whether additional time for new counsel is required. We will attend the public hearing whenever scheduled. We will need additional time for new counsel. At the September 20 public hearing you noted that the October 4 special meeting was being scheduled to accommodate the Town Attorney's return to his office. It is clearly in our interests that the Town Attorney or special counsel appear and defend the findings of its Building Department or ask for a remand so that the Building Department makes the determination based on applicable law. We hereby request that you adjourn the public hearings or keep public hearings open for a reasonable time after October 4 so that counsel for interested parties can review the file, participate before public hearings are closed and be present to object to or rebut submissions by developer and otherwise represent our interests. Sincerely, a i /, cc Supervisor, Town of:outhold ZONING BOARD OF APPEALS TOWN OF SOUTHOLD (631 ) 765-1809 FAX (631 ) 765-9064 FACSIMILE TRANSMITTAL SHEET TO: FROM: 'Matt"�[..A/7- ?-nfes{ ZBA Office Staff 765-1809 COMPANY: .4.4" (/ •DATE: y� FAX NUMBER: 2 / TAL NO.OF PAGES INCLUDING COVER: PHONE NUMBER: SENDER'S REFERENCE NUMBER: RE: � YOUR REFERENCE NUMBER: 914Ct"p Itja_ ❑URGENT 0 FOR REVIEW 0 PLEASE COMMENT 0 PLEASE REPLY❑ PLEASE RECYCLE / Nhitt).Ae_,,c_a__(_,,:,et.,) • /te) 'It71-61) 74- 107 4/1106 ')441 53095 MAIN ROAD P.O. BOX 1179 SOUTHOLD, NY 11971.0959 +- `1 I ML ^RANSMISSION VERIFICATION REPORT TIME : 10/02/2001 14:40 DATE,TIME 10/02 14:37 FAX NO./NAME 5432271 DURATION 00:02:07 PAGE(S) 04 RESULT OK MODE STANDARD ECM APPEALS BOARD MEMBERS ,�� SVFFOUr �,•�O�� ®G Southold Town Hall Gerard P. Goehringer, Chairman ,�� ���� 53095 Main Road James Dinizio, Jr. ; ti ; P.O. Box 1179 Lydia A. Tortora ,�;. ��'� Southold, New York 11971 Lora S. Collins `. � ®! �i� ZBA Fax (631)765-9064 George Horning = �1 a �'goo Telephone(631) 765-1809 •.., ,.t. BOARD OF APPEALS TOWN OF SOUTHOLD • September 27, 2001 Mr. Robert Young . 300 North Road P.O. Box 658 Greenport, NY 11944 Dear Mr. Young: I have read the newspaper report of your statement to the Town Board about the ZBA hearing held on September 20, 2001. I believe we gave you time to comment, and we urged you and other interested parties to appear at the October 4th hearing. As was noted at the September 20th hearing, the specific issue before the Board is the precise meaning of the Zoning Code regarding two-family structures in the Hamlet Density Zone District, appealing the Building Inspector's August 13, 2001 Notice of Disapproval (which states that the Code allows only one such structure per lot as a permitted use). The applicant's attorney during the September 20th hearing also discussed applicability of a 1983 site plan. We urge you to come in between 8 & 3 p.m. on a business day on or before October 4th to review updates that may be entered into the file by any interested party, or the applicant. We will be taking testimony again, either in writing or during the public hearing session at 7:15 p.m. on October 4th. If you require additional time for new counsel, please let us know before Wednesday, October 3rd between • 8 and 3 p.m. Very truly yours, •ae'lsibeovZe4,44...• Gerard P. Goehringer Chairman B eTel -2e..01 - September 7;--20`f i THe-'Suf-kilk Times t7 Subdivision .squall : Do you have pets? Are there smokers in - Kontokosta plan Kontocosta's, spoke at length. The ' the house? Does anyone in your home p • company seeks to appeal the denial suffer from allergies, asthma or other underscr°utin�l :of'a building permit and a notice of J•,"_ disapproval. respiratory problems? A proposed`subdivision of54 two- ' Concerned primarily about the traf- family houses'on 17 acres`inm Green- fic the subdivision would generate, If you answeredyes to any of these questions,Your home may suffer from port;-called'Northwi'nd Village, is Mr.Young said,"If one assumes two beingquestioned byarea residents. ears per single residence exiting �� D and D 0 0�o '2 1 `0 12 W The poperty, owned develo- entering_da ly... there will be well in ����� u U U\J per/publisher Emanuel Kontocosta,is -a excess of 750 opportunities a day for , located on the south"side of Route 48, seri,pus accidents to happen on a . _ ST MECHANICAL east of the San Simeon nursing home. stretch• of road where a number of _Neighbor Robert-Young informed deaths'have 'occurred in the recent , . • Heating and Air Conditioning , the Southold'Town Board on Tuesday;-• past.", - - - Announces the opening of a new division to their business..: that he'and others-weren't given the KACE LLC received approval to Air Duct Cleaning opportniiityLtO sive input-ata recent develop the-property with condomini- Zoning,Board of Appeal meeting, at - ums in 1988,and has been involved in Call for a free estimate: 734-6882 which,a legal" representative for various litigation surrounding the We provide service to commercial and-residential customers. KACE LLC Inc.,,a company'of'Mr. projectfor years. '"• Harbourside delay. . . � y 4 Investment From revious a eOM .: P page "too rural: They found the Virginia f, <> .'' • y - Right now,- I'm sitting with $50;000 house and decided tomake:the move "1-4,;;4 „-• °� � uestions ? worthof doors and windows that ;because_he-could have more`space for . ", - • don't °' his_ � � fit," he complained. Mr.Angel- family, lower taxes and a better ;_ Y t� f,L4 • .k _ son defended Mr. Mudd at that:time, working climate,he said.The oppor- < p "'; ;:; <-,:,,,,,w,,,,4,,,,a '`" sayingthat while there were setbacks, - tunities for builders'in Virginia are ��,- • ��� � �. � ; � "���„. ,-����M1�,� � _ none of them were the builder's fault greater,`he Said,because there,are - 7” f= ' '' f Call Rudy Bruer •' Prompted b Mr•.Angelson,Mr.. striet limits on who can be licensed. Mudd and architect Rob'Brown of - "Not just anybody with a truck and _ • ° x; '.' .': •'• i' ' "'," at 765-5100 Fairweather Brown met with"Mr. a ladder'cart call'himself a builder"in ',ii..,", . ; : , - Bage to resolve the difficulties and Virginia,said Mr.Mudd. w, ;f „,,,,,2,..., MOORS 4 keep the project moving. - . - At'first I,thought I d commute to 4. MOORS & CABOT I1VC. Then came Mr. Mudd's decision to 'finish [the'Harbourfront] project,"he ''''',:;.1 ' move away. - ' - said. But lie opted not to renew the 44' ' .z Main.Road Southold' contract with Mr.Se ete. "Somebody • "We've-been looking for awhile, fit• V ''�`" , , _ "°4; ` =� .� • (across from firehouse) f . he said, rioting that his family tried will finish it,"he said, declining fur- `° •-" _ "'"` _ living in Vermont briefly• ,but found it ther comment.:. ' I ELIZABETH A.NEVILLE �'�1 , • Gy ; Town Hall, 53095 Main Road TOWN CLERK p P.O. Box 1179 y 2 ; Southold, New York 11971 REGISTRAR OF VITAL STATISTICS ; Fax(516) 765-1823 MARRIAGE OFFICER � y � Telephone (516) 765-1800 - RECORDS MANAGEMENT OFFICER : LL �� FREEDOM OF INFORMATION OFFICER 491 ��� OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD • APPLICATION FOR PUBLIC ACCESS TO RECORDS INSTRUCTIONS: Please complete Section I of this form and give to Town Clerk's Office (agency Freedom of Information Officer) . One copy will be returned to you • in response to your request, or as an interim response. SECTION I. • TO: /3. (Department or Officer, if known, that has the information you are requesting.) RECORD YOU WISH TO INSPECT: (Describe the record sought. If possible, supply date, file title, tax map number, and any other pertinent information.) ' lei Aad ,C ln//., 41'4Soo3 Signature of Applican - If; Printed Name: v rztY R / 6E st- Address: Mailing Address (if different from above) : �D,.8c?c 5g CLECn4.9d ti Telephone Number: 17 fr Date: Phi. d4----"Z:i'Ir3erR. Zo ---I--APPROVE S e: . ' ; jk,� .(/ (1(l-Q; [ I APPROVED WITH DELAY* [ I DENIED* �' U (At— ' /"--CAAff 1 / Elizabeth A. Neville Date Freedom of Information Officer * If delayed or denied see reverse side for explanation. pi) it, . 6',„A 111-il-g---0 i SEP 0 2001 it To Southold Town Board of Appeals ,0-1)11 From Robert and Dorothy Young --� Re Appl. No. 4927-IcACE LI, INC. to be heard on Thursday;September_20, 2001;SII May it please the Board, my name is Robert Young and I appear on behalf of my wife, Dorothy A. Young and myself desiring to be heard and to submit this written statement before the conclusion of the above hearing. We have resided at 62615 County Road 48 (aka the North Road)for the last 17 years. Our driveway opens on the North Road exactly opposite the place where the applicant without authorization or approval has cut a private roadway for entrance to and egress from the proposed residential development. The appellant is requesting reversal of the Building Inspector's Disapproval dated August 13,2001 of a proposed residential project indicating several two-family dwellings on a single parcel in violation of a Code provision prohibiting such building and use. We urge- the rgethe Board to deny the Appeal and to affirm the finding of the Building Inspector. We also urge the Board to take notice of, review and consider other facts relating to this proceeding and proposed project. First,the public notice is dated August 23, 2001. There is no legal notice of public hearing published in The Suffolk Times of September 13. We submit a copy of Certified Mail envelope and Notice dated and postmarked September 12. which first appeared in our post office box on September 13. This is clearly insufficient notice to persons desiring to be heard before the conclusion of this hearing- especially in the context of the horrendous events of September 11. There has clearly been insufficient time for all persons interested and affected to review and study files in Town Offices and to join together in presenting these views to this Board or in retaining representation for this purpose. We urge the Board to take notice of these events and to dismiss on the basis of insufficient notice of appeal. Secondly, we urge the Board and every official acting pursuant to legal authority to take action in the context of the overall impact on the entire Tovyn, its residents and taxpayers and the environment. We submit that any proposal involving even one multiple dwelling in high density areas should be denied until totalimpact is determined and a solution has been provided. Total impact of the proposed development will affect all units of public service and governance. Taxpayers will pay the costs and all residents will suffer. Impact on those living or traveling on the North Road will extend to less safety and increased _- risk of loss of life. We urge that every official elected or appointed be mindful of total impact on environment and community and safety in carrying out their duties and responsibilities in enacting, enforcing or determining compliance with our laws and ordinances. We urge compliance with law by everyone-including those racing through our Town to or from the ferry- and policing and enforcement of our laws against those who don't. Townwide impact will mean that taxes from those families occupying new high density dwelling units will be far lower than the costs of educating their children, providing additional police and fire protection of their persons and property, refuse removal and other necessary services. The increased taxes will be borne by and assessed on all property in the Town-not on those purchasing and occupying such units. Each taxpayer in the Town thus subsidizes both developer/seller and dwelling purchaser/consumer of such services. The impact on those of us who live in the vicinity is more than financial. We note that the County Highway Department is presently(after several fatal accidents) doing construction work on CR 48 (North Road)in the area of Chapel Lane presumably to eliminate sharp curves and to provide more visibility for traffic in both directions and for traffic entering or exiting from Chapel Lane. The traffic and noise level has increased exponentially and the major contributors have been gamblers who have found that the shortest, fastest and easiest route to Foxwoods is through our beautiful Town founded over 365 years(not days) ago. It is idiotic that we permit this taking by people who for the most part pay no part of the costs or suffer losses(except those at the casino). My wife and I and I believe most of our neighbors have even greater losses and risks arising from this development and from lack of enforcement of laws relating to development and traffic violations permitted or uncontrolled to date. It has become difficult and unsafe to egress from or enter into our driveway from either east or west direction. Often there is a steady stream of traffic in both directions especially on weekends hourly when ferries arrive and depart. Huge trucks and other traffic are traveling at speeds up to 75 mph. In approaching from the west and waiting to make a left • turn into our driveway speeding cars heading east pass us without reducing speed(often accelerating) in the bike/walking lane. Our turning signal and brake lights are often disregarded and traffic from behind crosses double lines and race to pass us in front of oncoming traffic which is interfering with our left turn into the driveway. Directly in our rear traffic seems to be accelerating giving rise to fear of rear end collision and making it more difficult to deal with oncoming or passing traffic. When we come from the east, put on signal lights and slow down to make a right turn into our driveway, impatient drivers from behind cross the double line and force us into the bike/walking lane where the right turn into the driveway becomes even more difficult. In times of heavy traffic from the west and cars from behind crossing double lines to pass our slowing vehicle we watch"close shaves" of multiple car/truck collisions which we are powerless to avoid. In exiting the driveway we have on a few occasions experienced greater danger. Once after checking to find no traffic in either direction I turned right to the west where road visibility is about 600 feet west and 1000 feet easterly. As I entered into the traffic lane two speeding cars from the east crossed double lines and passed me on my left at high speed. Ahead a line of traffic appeared with the second car in line crossing double lines and coming at high speed headon in my lane with the two passing cars (also at high speed) squeezing in front of me and the oncoming traffic-a total of at least five cars within a few seconds of multiple collision. This situation will only worsen with a center turning lane. It will become impossible with a large development and probably two cars per family on average entering and exiting the f, - public road. Every existing residence on the north side of the North Road across from this development will be adversely affected. In conclusion, I recognize that each public official (elected or appointed) and each board is somewhat circumscribed in their powers by provisions of law granting jurisdiction and power. Given the growth of the Town and the imposition of the Gamblers' Speedway without benefiting any of us, I urge each such official and board (and each candidate for office)to consider total impact whenever called upon to enact or enforce or interpret laws and ordinances governing our community. These laws have been enacted and should be enforced and interpreted with the safety and interests of our community and its citizens foremost in mind. We should not allow Foxwoods or ferry operations or profit opportunity of developers determine the nature of our community or place any of our residents in greater danger of loss of life or property or increase tax burdens in which none of Foxwoods or ferry or profit opportunists share. To the extent that their expenses increase in being compelled to comply they are more than compensated by increased profits and higher value of their properties. Job opportunities for our residents and neighbors are of course important but not to the extent of changing the total environment in which we live and increasing the risks of loss of life, liberty and property without due process of law guaranteed to each of us. I urge all citizens and residents of the Town to join together and insist upon government of, for and by the people of Southold from all officials of the Town and pledges from all candidates for election to use influence in County and State in achieving this goal. • 09/28/01 10:49 N0.059 D02 60. �� ' SEP I8 is To Southold Town Board of Appeals From Robert and Dorothy Young 't .rt‘ Re Appl. No, 4927-KACE LI,INC. to be heard on Thursday; September 20, 2001. May it please the Board, my name is Robert Young and I appear on behalf of my wife, Dorothy A. Young and myself desiring to be heard and to submit this written statement before the conclusion of the above hearing. We have resided at 62615 County Road 48 (aka the North Road)for the last 17 years. Our driveway opens on the North Road exactly opposite the place where the applicant without authorization or approval has cut a private roadway for entrance to and egress from the proposed residential development. it The appellant is requesting reversal of the Building Inspector's Disapproval dated August 13,2001 of a proposed residential project indicating several two-family dwellings on a single parcel in violation of a Code provision prohibiting such building and use. We urge the Board to deny the Appeal and to affirm the finding of the Building Inspector. We also urge the Board to take notice of,review and consider other facts relating to this proceeding and proposed project.First,the public notice is dated August 23, 2001. There is no legal notice of public hearing published in The Suffolk Times of September 13. We submit a copy of Certified Mail envelope and Notice dated and postmarked September 12 which first appeared"in our post office box on September 13. This is clearly insufficient notice to persons desiring to be heard before the conclusion of this hearing-especially in the context of the horrendous events of September 11. There has clearly been insufficient time for all persons interested and affected to review and study files in Town Offices and to join together in presenting these views to this Board or in retaining representation for this purpose. We urge the Board to take notice of these events and to dismiss on the basis of insufficient notice of appeal. Secondly, we urge the Board and every official acting pursuant to legal authority to take action in the context of the overall impact on the entire Town, its residents and taxpayers and the environment. We submit that any proposal involving even one multiple dwelling in high density areas should be denied until total impact is determined and a solution has been provided, Total impact of the proposed development will affect all units of public service and governance. Taxpayers will pay the costs and all residents will suffer. Impact on those living or traveling on the North Road will extend to less safety and increased _ risk of loss of life. We urge that every official elected or appointed be mindful of total impact on environment and community and safety in carrying out their duties and responsibilities in enacting, enforcing or determining compliance with our laws and ordinances. We urge compliance with law by everyone-including those racing through our Town to or from the ferry-and policing and enforcement of our laws against those who don't. Townwide impact will mean that taxes from those families occupying new high density dwelling units will be far lower than the costs of educating their children, providing additional police and fire protection of their persons and property, refuse removal and 'other necessary services. The increased taxes will be borne by and assessed on all 09/28/01 10:49 N0.059 D03 ' 1 • J • • I ' property in the Town not on those purchasing and occupying such units_ Each taxpayer in the Town thus subsidizes both developer/seller and dwelling purchaser/consumer of such services. The impact on those of us who live in the vicinity is more than financial. We note that the - County Highway Department is presently(after several fatal accidents)doing construction work on Cit 48(North Road)in the area of Chapel Lane presumably to eliminate sharp curves and to provide more visibility for traffic in both directions and for traffic entering or exiting from Chapel Lane, The traffic and noise level has increased exponentially and the major contributors have been gamblers who have found that the shortest,fastest and easiest route to Foxwoods is through our beautiful Town founded over 365 years(not days)ago. It is idiotic that we permit this taking by people who for the most pan pay nopart of the costs or suffer losses(except those at the casino). My wife and I and I believe most of our neighbors have even greater,losses and risks arising from this development and from lack of enforcement of laws relating to development and traffic violations permitted or uncontrolled to date. It has become difficultand unsafe to egress from or enter into our driveway from either east or west direction. Often there is a steady stream of traffic in both directions especially on weekends hourly when ferries arrive and depart.Huge trucks and other traffic are traveling at speeds up to 75 mph. In approaching from the west and waiting to make a left • turn into our driveway speeding cars heading east pass us without reducing speed(often accelerating)in the bike/walking lane. Our turning signal and brake lights are often disregarded and traffic from behind crosses double lines and race to pass us in front of oncoming traffic which is interfering with out left turn into the driveway.Directly in our rear traffic seems to be accelerating giving rise to fear of rear end collision and making it more difficult to deal with oncoming or passing traffic. When we come from the east, put on signal lights and slow down to make a right turn into our driveway, impatient drivers from behind cross the double line and force us into the bike/walking lane where the right turn into the driveway becomes even more difficult in times of heavy traffic from the west and cars from behind crossing double lines to pass our slowing vehicle we watch"close shaves"of multiple car/truck collisions which we are powerless to avoid. In exiting the driveway we have on a few occasions experienced greater danger. Once after checking to find no traffic in either direction I turned right to the west where road visibility is about 600 feet west and 1000 feet easterly. As I entered into the traffic lane two speeding cars from the east crossed double lines and passed me on my left at high speed. Ahead a line of traffic appeared with the second car in line crossing double lines and coming at high speed headon in my lane with the two passing cars(also at high speed)squeezing in front of me and the oncoming traffic-a total of at least five cars within a few seconds of multiple collision. This situation will only worsen with a center turning lane. It will become impossible with a large development and probably two cars per family on average entering and exiting the 09/28/01 10:49 N0.059 D04 a� public road.Every existing residence on the north side of the North Road across from this development will be adversely affected. In conclusion, I recognize that each public official (elected or appointed)and each board is somewhat circumscribed in their powers by provisions of law granting jurisdiction and power. Given the growth of the Town and the imposition of the Gamblers' Speedway without benefiting any of us, I urge each such official and board(and each candidate for office)to consider total impact whenever called upon to enact or enforce or interpret laws • and ordinances governing our community. These laws have been enacted and should be enforced and interpreted with the safety and interests of our community and its citizens foremost in mind.'We should not allow Foxwoods or ferry operations or profit opportunity of developers determine the nature of our community or place any of our residents in greater danger of loss of life or property or increase tax burdens in which none of Foxwoods or ferry or profit opportunists share. To the extent that their expenses increase in being compelled to comply they are more than compensated by increased profits and higher value of their properties. Job opportunities for our residents and neighbors are of course important but not to the extent of changing the total environment in which we live and increasing the risks of loss of life, liberty and property without due process of law guaranteed to each of us. I urge all citizens and residents of the Town to join together and insist upon government o; for and by the people of Southold from all officials of the Town and pledges from all candidates for election to use influence in County and State in achieving this goal. • • i NOTICE OF PUBLIC HEARING 67- I) . SOUTHOLD TOWN BOARD OF APPEALS THURSDAY, SEPTEMBER 20, 2001 NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and Chapter 100 (Zoning), Code of the Town'of Southold, the following application will be heard at a public hearing by the SOUTHOLD TOWN BOARD OF APPEALS at the Town Hall, 53095 Main Road, Southold, New York 11971, on THURSDAY, SEPTEMBER 20, 2001, at the time noted below (or as soon thereafter as possible): '0 8:45 p.m. Appl. No. — KACE LI, INC. This is an Appeal requesting a Reversal of the Building Inspector's Notice of Disapproval dated August 13, 2001, denying an application for a building permit for two-family dwellings under Article IV, Section 100-42A.2. The reason stated in the Notice of Disapproval is that the proposed project indicates several two-family dwellings on a single parcel, and that the Code allows only one such structure per lot as a permitted use. Zone District: Hamlet-Density (HD). Location of Property: South Side of North Road (a/k/a C.R. 48) (now or formerly referred to as "Northwind Village" site), 500+-feet east of Chapel Lane, Greenport; Parcel #1000-40-3-1. The Board of Appeals will hear all persons, or their representative, desiring to be heard at the hearing, or desiring to submit written statements before the conclusion of the above hearing. This hearing will not start earlier than designated. Files are available for review during regular Town Hall business hours (8-4 p.m.). If you have questions, please do not hesitate to call (631) 765-1809. ' I Dated: August 23, 2001. GERARD P. GOEHRINGER, CHAIRMAN SOUTHOLD TOWN BOARD OF APPEALS Town Hall 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 • IVI IIL' !CERTRE Y Kace LI LLC - 43 West 54th Street New York, NY 10019 • U.S.- POSTAGE PAID . 111111 I II II 1111 SOUTHOLD.NY { 0018 4386 2183 a"tea SEAMOUNTU1 0 7099 3402 9269 $3,t34 1!999 } 0009791-76 I Robert E. Young 300 North Road, PO BOX 658 Greenport, NY 11944 ZONING BOARD OF APPEALS TOWN OF SOUTHOLD (631 ) 765-1809 FAX ( 631 ) 765 -9064 FACSIMILE TRANSMITTAL SHEET TO: FROM: �� ZBA Office Staff 765-1809 COMPAY: DATE: Pad N� /6/2-A) / FAX NUMBER: TOTAL NO.OF PA ES INC UDING COVER• ,.5y3 -77/ PHONE NUMBER. SENDER'S REFERENCE NUMBER: RE: /� YOUR REFERENCE NUMBER: /�Y a 0. Y ❑ URGENT 0 FOR REVIEW 0 PLEASE COMMENT❑PLEASE REPLY❑ PLEASE RECYCLE NOTES/COMMENTS: 7°.)_11) Arasd- OA"-, )1L-LA-L,12 efw a� 53095 MAIN ROAD P.O. BOX 1179 SOUTHOLD, NY 11971.0859 1 ., TRANSMISSION VERIFICATION REPORT TIME : 10/02/2001 15:32 DATE,TIME 10/02 15:30 FAX NO./NAME 5432271 DURATION00: 02:10 PAGE(S) 03 RESULT OK MODE STANDARD ECM 110 PLANNING-BOA-RD TOWN OF SOU TOLD SUFFOLK COUNTY c- 2;,, •1/), - - Southold, N.Y. 11971 HENRY E RAYNOR,Jr., Chairmart TE L'°140\" 1.\tifLS WALL i BENNETT ORLOWSKI,1• GEORGE RITCHIE LATHAM,Jr WILLIAM F.MULLEN,Jr July 14 , 1983 Mr. David Kapell Kapell Real Estate 400 Front Street Greenport, New York 11944 Re: Northwind Village Site Plan Dear Mr. Kapell : The following action was taken by the Southold Town Planning Board, Monday, July 11 , 1983 . RESOLVED that the Southold Town Planning Board approve the site plan "Northwind Village" dated May 11 , 1982 , and certified by the Building Inspector June 17 , 1983 . To date we have not received the appliction fee of $25 . Very truly yours , HENRY E. RAYNOR, JR . , CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Susan E . Long, Secrotary 41. FROM FAX NO. : Aug. 17 2001 03:23PM P1 FORM NO. 3 TOWN OF SOUTHOLD BUILDING DEPARTMENT SOUTHOLD,N.Y. AMENDED NOTICE OF DISAPPROVAL DATE; August 13,2001 TO Kace L.I. LLC C/o Kontokosta 43 W. 54th Street New York N.Y. 10019 Please take notice that your amended application dated August 10, 2001 For permit for Multiple,two family dwellings at Location of property North Road(CR48) Greenport County Tax Map No. 1000 - Section 40 Block 3 Lot 1 Subdivision Filed Map # Lot# Is returned herewith and disapproved on the following grounds proposed dwellings not permitted pursuant to Article IV Section 100-42A.2 which states; In the HD District, no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part, for any use except the following: A. Permitted uses. (2) Two-family dwelling. Proposed project indicates several ( exact amount unknown two famil dwellin:s on a sin:le •arcel. Code allows only one such structure per lot as a permitted use. Authoriz ignature • . ‘,.-.A,-41 APPEALS BOARD MEMBERS. ,go'" ;�i��S�FFU(�l' Southold Town Hall Gerard P. Goehringer, Chairman le - �Gy 53095 Main Road James Dinizio, Jr. ; p . '. ; P.O. Box 1179 Lydia A. Tortora ,? Southold,New York 11971-0959 Lora S. Collins :`��, `-` ��use( �/0 ZBA Fax(631)765-9064 George Horning '__ol � `a„��i� Telephone(631) 765-1809 0)4i? - ( BOARD OF APPEALS �� TOWN OF SOUTHOLD IC( August 22, 2001 Matthew E. Pachman, Esq. Pachman & Pachman 366 Veterans Memorial Highway Commack, NY 11725 • Re: Appl. No. 4927 — Request for Interpretation Dear Mr. Pachman: This will confirm that the Board took the following Action at its meeting of August 16, 2001: RESOLVED, to confirm Appl. No. 4927 in the Matter of Kace L.I. Inc. (for relief as multiple-family uses on vacant land) is withdrawn without prejudice. This Resolution was duly adopted by all of the members present (4-0). Very truly yours, Linda Kowalski Board Secretary ` r 110 CQpp, ce-vitizio4_614-0FORM NO. 3 4cebo' �1TOWN OF SOUTHOLD Iteu'/ ,,'fe• BUILDING DEPARTMENT SOUTHOLD,N.Y. AMENDED NOTICE OF DISAPPROVAL DATE; August 13, 2001 TO Kace L.I. LLC C/o Kontokosta 43 W. 54th Street New York N.Y. 10019 Please take notice that your amended application dated August 10, 2001 For permit for Multiple, two family dwellings at Location of property North Road(CR48) Greenport County Tax Map No. 1000 - Section 40 Block 3 Lot 1 Subdivision Filed Map# Lot# Is returned herewith and disapproved on the following grounds proposed,dwellings not permitted pursuant to Article IV Section 100-42A.2 which states; In the HD District, no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part, for any use except the following: A. Permitted uses. (2) Two-family dwelling. Proposed project indicates several ( exact amount unknown) two family dwellings on a single parcel. Code allows only one such structure per lot as a permitted use. Authoriz ignature S QUESTIONNAIRE FOR FILING WITH YOUR Z.B.A. APPLICATION A. Please disclose the names of the owner(s) and any other individuals •(and entities) having a financial interest in the subject premises and a description of their interests: (Separate sheet may attached. ) li _ rte. / ,,'/:1Z4 9 / J 1-1,, rs the sub]'ect �cD•x r� _ premises listed on the real estate market for_ sale or being shown to prospective buyers? ( ) Yes { } No. (If Yes, please attach copy of "conditions" of sale. ) C. Are there any proposals to change or alter land contours? ( } Yes { } Ha D. 1. Are there any areas which contain wetland grasses? 2. Are the wetland areas shown on the map smbmitted with this application? 3 . Is the property bultiheaded between the wetlands the upland building area? . area and 4. If your property cont-Pint wetlands or pond areas, have you contacted the Office of the Town Trustees for its determination of jurisdiction? E. Is there a depression or sloping elevation near the area of proposed construction at or below five feet above mean sea level? (If pat applicable, state "N.A• " ) F. Are there any patios, concrete barriers, bulkheads or fences which exist and are not shown on the survey -submitting? If none exist, please state mst than onu are none. _ G. Doyou have any construction taking plaCe at this time • concerning your premises? ease of your building permit and map aslapprof ved by't he Built a copy Department. If none, please state. H. H. Do you or any co-owner also own other land close to Chic parcel? If yes, please expla where or of deeds. submit copies I. Please list present use or operations conducted at this parcel I/�7 � �: proposed use F� and Authorized Sig Lure and Date '- 3/87, 10/9O7k t ' • ,. 4111 411" APPLICANT TRANSACTIONAL DISCLOSURE FORM The Town of Southold ' s Code of Ethics prohibits conflicts of interest on the part of town officers and em2loyees. The purpose of this form is to provide information which can p alert the town of possible conflicts of interest and allow it to take whatever action is necessary to avoid same. YOUR NAME: /6Ce Lnfle ,�yM. l(j0n /O /VOST/9 (Last name, first name , middle initial, unless you are applying in the, name of someone else or other entity, such as a company. If so, indicate the other person 's or company 's name. ) NATURE OF APPLICATION: (Check all that apply. ) Tax grievance Variance Change , of zone Approval of plat Exemption from plat or official map Other D (If "Other, " name the activity . ) - ,�p�22A-� ?ion o�' ben,' L A �� ,�u�?d�'n S l ems' 13 ci P 61 y SPuse,- Do you personally (or through your company, spouse, sibling, parent, or child) have a relationship with any officer or employee of the Tovn of Southold? "Relationship" includes by blood, marriage, or business interest. "Business interest" means a business, including a partnership, in vhich the town officer or employee has even a partial ownership of (or employment by) a corporation in which the town officer or employee owns more than 5% of the shares. YES ,_ NO J�(' If you answered "YES, " complete the balance of this form and data and sign where indicated. Name of person employed by the Town of Southold Title or position of that person Describe the relationship between yourself ( the applicant ) and the town officer or employee. Either check the appropriate line A) through D) and/or describe in the space provided. The town officer or employee or his or her spouse, sibling, parent, or child is (check all that apply) : A) the owner of greater than 5% of the shares of the corporate stock of the applicant (when the applicant is a corporation) ; a) the, legal or beneficial owner of any interest in a noncorporate entity (when the applicant is not a corporation) ; C) an officer, director, partner , or employee of the applicant; or D) the actual applicant . DESCRIPTION OF RELATIONSHIP 9 Submitted this fray ofgS'!, 242© ' . ,104119 AMI Signature • I♦ Print name M. on • let's I `` Town Of Southold P.O Box 1179 Jouthold, NY 11971 * * * RECEIPT * * * Date: 08/30/01 Receipt#: 1097 Transaction(s): Subtotal 1 Application Fees $200.00 Check#: 1097 Total Paid: $200.00 • Name: Kace, LI LLC C/o Pachman & Pachman 366 Vet Mem. Hwy Commack, NY 11725 Clerk ID: LINDAC Internal ID:39456 41110 al er mIrOrTa-ertIV17\-1 .71)1114;s1 a iii 2001 Mt/ L------------„,„, ,„ August 9, 2001 Pachman & Pachman P.C. 366 Veterans Memorial Highway Commack N.Y. 11725 Attn; Matthew Pachman Re; Kace LI, LLC SCTM# 1000-40-3-1 Dear Mr. Pachman, - In response to your letter, dated August 8 2001, this office cannot process the application in question as two family dwellings. Town Code Article IV Section 100-42A lists the permitted uses in this HD district. Listed is a two family dwelling, it is my understanding that your client proposes several two family dwellings on this parcel. It is my determination that more than one two family dwelling is not permitted, nor are they permitted by special exception. Should your client wish to appeal this determination an application for this project should be presented for disapproval. Sincerely, Edward Forrester Director of Code Enforcement • 4110 FORM NO. 3 e--p__________„ TOWN OF SOUTHOLD ' i -L---._,__ `> r r-BUILDING DEPARTMENT 1 -._`�`/ Lam. ! SOUTHOLD,N.Y. Sip 1 �i// AMENDED 7 2001 it/ �`'OTICE OF DISAPPROVAL t��r;� ' DATE; August 13, 2001 TO Kace L.I. LLCjj C/o Kontokosta 43 W. 54th Street New York N.Y. 10019 Please take notice that your amended application dated August 10, 2001 For permit for Multiple, two family dwellings at Location of property North Road (CR48) Greenport . County Tax Map No. 1000 - Section 40 Block 3 Lot 1 Subdivision Filed Map # Lot # Is returned herewith and disapproved on the following grounds proposed dwellings not permitted pursuant to Article IV Section 100-42A.2 which states-, In the HD District, no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part, for any use except the following: A. Permitted uses. (2) Two-family dwelling. Proposed project indicates several ( exact amount unknown)two family dwellings on a single parcel. Code allows only one such structure per lot as a permitted use. Authorized Signature 08i08i01 14:55 N0.522 P03 .T170, 14— 400 .11 • L i t. At,! 2oor s i PAQHMAN & PAOHMAN, P.G ATTORNEYS 366 VETERANS MI MOK1AI_ NIOt1WAY •f LDG. �F COMMACK, NEW YORK 117g5 (63 11 643-0204 TELEGOPIER (83 1) 548-2e7 i COUNSEL IIANVEY B. SESLINVEA MAI"PIIMW h. PAC*1AN August 8,2001 Ed Forrester,Building Inspector Town of Southold 53095 Main Road Southold,NY 11971 Re: Kace g LLC SCTM#1000-40-3-1 Dear Mr.Forrester: As you may be aware,my firm represents Kace LI,LLC with respect to the above-noted matter. As you will recall,by notice datedDecember 6,2000,(a copy of which is attached for easy reference),you denied the building permit application with respect to above-referenced site. You,thereafter,fie d an amended Notice of Disapproval,dated July 30,2001(a copy of which is also enclosed for easy ). It is my understanding that both reasons for your disapproval related to the issue of multiple dwellings, pursuant to Southold Town Code Section 100-42(B)(1). I assume you,through inadvertence,overlooked oanpJ�approved site pred ovided or suchRamultiple or Jr,as Chairman of the Southold PlanningDepartment, -dwellings. Not withstanding this approved site plan,please be advised that,in an attempt to bring this long-overdue project to fruition,Kace has agreed,without prejudice,to build the structures,pursuant to this approved site plan, astwo family dwellings,and not as m ti le dwellin S. Kindly process and issue the building permit at your earliest convenience. Very truly yours, 'Mirk0 it Inc\111 MAIATmEW E, PACHMAN MEPljlw enclosures cc:Kace LI,LLC F;13eita S.>ENENCONTCKos4KeemlCa sp 'caTmzeweJul.v.vd APPEALS BOARD MEMBERS Oil �,'"',,,, 11P , ^ Southold Town Hall ®91S�FFO(�co Gerard P. Goehringer, Chairman ,I', 4: 53095 Main Road James Dinizio,Jr. cd • P.O. Box 1179 Lydia A.Tortora .• ? Southold,New York 11971-0959 Lora S. Collins :b6,b2 ZBA Fax(631)765-9064 George Horning =an, * , se'�'� Telephone(631)765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD August 13, 2001 By,Fax and Regular Mail • Matthew E. Pachman, Esq. Pachman & Pachman 366 Veterans Memorial Highway Commack, NY 11725 Re: Appl. No. 4927 — Request for Interpretation Dear Mr. Pachman: We are in receipt of your letter dated August 8, 2001 with enclosed copy of a letter to Ed Forrester of,the Building Department. Subsequently, we were advised that the applicant submitted a new application on August 10, 2001 requesting "multi-housing —two-family dwellings", and the Building Department issued another Notice of Disapproval dated August 13, 2001. Based on your letter and procedures of the Board, this will confirm that Application No. 4927, appealing the July 30, 2001 Notice of Disapproval issued by the Building Department, is withdrawn. If you would like to file another application, based on the August 10, 2001 amended application and appealing the Building Department's August 13, 2001 Notice of Disapproval, please submit the application documents (listed on the attached instruction sheet). Please also provide a written description of the Board relief requested, before August 17, 2001. Very truly yours, Gerard P. Goehringer Chairman Enclosure esOr ; ELIZABETH A.NEVILLE � � �sTr� # �: Town Hall, 53095 Main Road TOWN CLERK "y +' P.O. Box 1179 REGISTRAR OF VITAL STATISTICS ` Southold, New York 11971 MARRIAGE OFFICER ® � '� 1/, Fax (631) 765-6145 ° '` ®�11 RECORDS MANAGEMENT OFFICER = % ,� Telephone (631) 765-1800 FREEDOM OF INFORMATION OFFICER ' ,AI` s' ����11 OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD TO: Southold Town Zoning Board of Appeals FROM: Elizabeth A.Neville, Southold Town Clerk DATED: August 30, 2001 RE: Zoning Appeal No. 5003 Transmitted herewith is Zoning Appeal No. 5003 of Kace LI, LLC for a variance. Also included is: copy of Planning Board letter dated July 14, 1983; Pachman & Pachman letter to ZBA dated August 17, 2001; amended Notice of Disapproval dated August 13, 2001; ZBA Questionnaire; and applicant transactional disclosure form. • PAGHMAN 8C PAGHMAN, P.G. ATTORNEYS 366 VETERANS MEMORIAL HIGHWAY COMMACK. NEW YORK 11725 (63 1) 543-2200 TELEGOPIER (631) 543-2271 COUNSELL, HOWARD E PAGHMAN HARVEY B BESUNDER MATTHEW E PAGHMAN August 17, 2001 Gerard P. Goehringer, Chairman Board of Zoning Appeals Town of Southold, Town Hall 53095 Main Street P.O. Box 1179 Southold, New York 11971 Re: Kace LI, LLC Request for Interpretation Dear Mr. Goehringer: The following is in response to your letter dated August 13, 2001,wherein you request a description of the above-referenced application. I enclose a letter from the Town of Southold Building Department, dated August 13, 2001, to Kace LI, LLC (Kace), stating that its application for a building permit was denied because of a purported conflict with Southold Town Code Section 100-42A. As you are aware, the Planning Board approved the site plan on July 11, 1983. You will recall that Southold Town Code §100-255(B) states: All site plans which have received final approval prior to the enactment of this Article shall remain valid for a period of three years from the date of such enactment. This period will begin when all governmental approvals have been obtained. (emphasis supplied) Since the Suffolk County Water Authority has not yet issued its approval, this period has not yet commenced. Thus, the applicant believes that the building official's denial must be reversed given the existence of the valid site plan. Page 2 Gerard P. Goehringer, Chairman August 17, 2001 I trust the foregoing is responsive to your inquiry. Very truly yours, 'i MATTHEW E. PACHMAN MEP\jlw enclosures cc: Kace LI, LLC w/out encs. F\Data\CLIENTS\KONTOKOS\Kace\Correspondence\Goehnnger Itr3 wpd .fir , 11 , I: -- - -^ PAGHMAN & PAGHMAN, P.G. (� 2001 1 ATTORNEYS - Lt..;I R!t AU �✓ I f 366 VETERANS MEMORIAL HIGHWAY r_..� GOMMAGK. NEW YORK 11725 - BLDG4'µ`'i. (631) 543-2200 .7,70'1;%;1'" t)F 01:1ri j_D TELEGOPIER (631) 543-2271 - GOUNSEL - HOWARD E. PAGHMAN HARVEY B. BESUNDI, MATTHEW E. PAGHMAN August 8, 2001 Ed Forrester,Building Inspector Town of Southold 53095 Main Road Southold,NY 11971 Re: Kace LI,LLC SCTM#1000-40-3-1 Dear Mr. Forrester: As you may be aware, my firm represents Kace LI,LLC with respect to the above-noted matter. As you will recall,by notice dated December 6,2000,(a copy of which is attached for easy reference),you denied the building permit application with respect to the above-referenced site. You,thereafter,filed an amended Notice of Disapproval,dated July 30,2001 (a copy of which is also enclosed for easy reference). It is-my understanding that both reasons for your disapproval related to the issue of multiple dwellings, pursuant to Southold Town Code Section 100-42(B)(1). I assume you,through inadvertence,overlooked the approved site plan signed by Henry E.Raynor Jr.,as Chairman of the Southold Planning Department, on July 11, 1983, which provided for such multiple dwellings. Not withstanding this approved site plan,please be advised that, in an attempt to bring this long-overdue project to fruition,Kace has agreed,without prejudice,to build the structures, pursuant to this approved site plan, as two family dwellings, and not as multiple dwellings. Kindly process and issue the building permit at your earliest convenience. Very truly yours, de" 1 1„, MATTHEW E. PACHMAN MEP/jlw enclosures - . co: Kace LI;LLC F\Data\CLIlNTS\KONTOKOS\Kate\Correspondence\Foncster ltrl wpd - —• NVVlr V1+ OJV1MALL, • .0 Vj J11„:4 KALUV11.1. tsrrav11 vais.vJ J JILDING DEPARTMEN ' >you have or need the following,before app] • „ TOWN HALL Board of Health • SOUTHOLD,NY 11971 3 sets ofBniilling Plans TEL: 765-1802 • Survey PERMIT NO. ' Check • Septic Form • //�J� N Y.S.D.E.C. 71- /14L�lYD DTrustees Examined • ,20 Contact • Approved ,20 /p'!C 4,710,0/. Mail to: Disapproved a/c + 3 /® Ir.:Z5,--A • Phone: • F (r F 11. Building Inspector • APPLICATION FOR BUILDING PERMIT, ._.._._�r •^_T• •.. �, 20c INSTRUCTIONS Date. a.This application MUST be completely filled in by typewriter or in ink and submitted to the Building Inspector wil sets of plans,accurate plot plan to scale.Fee according to schedule. b.Plot plan showing location of lot and of buildings on premises,relationship to adjoining premises or public streets areas,and waterways. c.The work covered by this application may not be commenced before issuance of Building Permit. d.Upon approval of this application,the Building Inspector will issue a Building Permit to the applicant. Such a pen a1,a11 be kept on the premises available for inspection throughout the work. e.No building shall be occupied or used in whole or in part for any purpose what-so-ever until a Certificate of Occul is issued by the Bililding Inspector. APPLICATION IS HEREBY MADE to the Building Department.for the issuance of a Building Permit pursuant to ti Building Zone Ordinance of the Town of Southold,Suffolk County,New York,and other applicable Laws,Ordinances or Regulations,for the construction of buildings,additions,or alterations or for removal or demolition as herein described.The applicant agrees to comply with all applicable laws,ordinances,building code,housing code,and regulations,and to admit authorized inspectors on premises and in building for necessaryinspections. • J,�� L T;, Z L c- .(Signature of applicant or name,if a corporation) • 72 o,y'y Z7/Co. 43 ti r .54 st, yC /goo/el • • (Mailing address of applicant) State whether applicant is owner,lessee, agent, architect, engineer, general contractor, electrician,plumber or builde 4,4136"/2.- COudtiga-3 • Name of owner of premises i9 e E L(.C • (as on.tlie tax roll or latest deed) If applicant is a corporation,signature of duly authorized officer. r/4/1. �fo��v h o S 7)4 • (Name and title of corporate officer) • • Builders License No. Plumbers License No. •• Electricians License No. • Other Trade's License No. 1. Location of land on which 'roposed wor. will be done: o — o az DA-!7 O/ Ade House Number StreetHamlet • • County Tax Map No. 1000 Section © Block Subdivision Filed Map No, r • Lot. (Name) • w• ... , .t and an F oged a�!strncdcm: 4 State existing use and occupancy o,,r..raises and intended use mum] p oP a. Existing use and occupancy'_ (wig ,*9.'`7-- /-,4,r-rte • ded use and oc ancy /24 -�r, , 0sWil -- •0, -rikt tG7 DA/6Gc-/A/f S b. .Inten �P , t Nature of work(check which applicable):New Building_ AdditionAlteration Rept R oval Demolition (Description) " �,� T Fee - Estimated Cost .-:- 2:-©•� (to be paid on filing this application) If dwelling,number of dwelling units �lr�iTs Number of dwelling Units on each floor 2 . If garage, number of cars 2 If business, commercial or mixed occupancy, specify nature and extent of each type of use. structures,if any.Front Rear Depth Dimensions of existing Height Number of Stories " • Dimensions of same structure with alterations or additions: Front ' Rear Depth . . Height Number of Stories. Dimensions of entire new construction:Front Rear • Depth Height a 5 P-+- Number of Stories • . • Size of lot Front / 7 c2e--,Rear • • Depth ..1., fi�� fiterc SJ r7-& Wow ).Date of Purchase Name of Former Owner �/ • L.Zone or use district in which premises are situated 74/944 L ��`1 '/ " . > Doesptoposed construction violate any zoning law,ordinance or regulation: 5iR2pel Si 7E Pi9'i .. .'7/4133 .Will lot be re-graded • Y5 Will excess fill be removed from premises: IC NO • • .¢3 ell 5r6-42- 1.Names of Owner of premises74‹.2)c6j 1 LIC Address ,-/Y() loo/9' Phone No. 212-5'62-6 too- Name 6aName of Architect ,Afz.,, o//ra 05 s Address 4a_hfZ-__� Phone No gi Z-_ Re-z/o 0 Name of Contractor - Address Cil C 1 /Po ? Phone No. 5. Is this property within 100 feet of a tidal wetland? PERMITS MAQ REQUIRED . • IF YES, SOUTHOLD TOWN 5.Provide survey,to scale,with accurate foundation plan and distances to property lines. 56 fpreovcv 7.If elevation at any point on property is at 10 feet or below,must provide topographical data on survey -6/ rz= % e/ TATE OF NEW YORK) SS: ovNrY OF.5-00:0L- , , • '�, ;45":8,72/7-- is--ens 7%1 being duly sworn;deposes and says that(s)he is the applicant (Name of individual signing contract)above named, . ;)He is the N6 -/14/3eie . (Contractor,Agent,Corporate Officer,etc.) • F said owner or owners,and is duly authorized to perform or have performed the said work and to make and file this application; at all statements contained in this application are true to the best of his knowledge and belie and that the work will be rrfoxmed in the manner set forth in the application'filed therewith. ' worn to before me thiss / day of i _ 200,E ; �i . Nay Pub c . , Signature of • .• • . • EMILY HAMILL Notary Public,State of New Ye • No.01HA5059984 Qualified in Suffolk Cou�l Commission Expires May 08 r}�/___ use Mate existing oand Y aricy of pt_ _,`res and intended use and occupancy t . ,,)oposed construction: et � a. Existing use and occupancy Vi9 .,,4,/,-,1 7- 1--,9,-/47 b. Intended use and occapaacy . /14 ,4TI-44,0s//7' -- ' 2,�-coli-y ../66�/ivf s' NR+nre of work(check which applicable):New Building Work Alteration Addition Repair R oval Demolition (Description) Estimated Cost - /24, oe a/lei,/ T' Fee (to be paid on filing this application) If dwelling,number of dwelling units g a trrs// Number of dwelling units on each floor Z If garage, number of cars 2 e nature and extent of each type of use. If business, commercial,or mixed occupancy, specify Dimensions of existing structures,if any:Front Rear Depth . Height • Number of Stories • Dimensions of same structure with alterations or additions: Front • Rear Depth Height Number of Stories. • Dimensions of entire new construction:Front Rear • Depth Height 2.S - Number of Stories ; • . Size /� of lot Front / k...,,,,Rear ' • • Depth �� • f-t"ppr er Wi9t/! • ).Date of Purchase. Name of Former Owner L.Zone or use district in which premises are situated 7/74,14,1-7- - 1-/ I TX • t.Does proposed construction violate any zoning law, ordinance or regulation: .-z= #ppiSi TE e..,9 fl Will lot be re-graded • 1"--i Will excess fill be removed from premises: S NO • ' • .¢3 tdsr.SVSI I,Names of Owner of premises 71"‹.4e6,Li;LGC Address n/Y c f l oo 1q Phone No. 2/-5 82 6 MO- Name of Architect_rnpoirvicos via Address /3 L?/' 5* Si- Phone No g/z-X 2-6/o v Name of Contractor Address h'ICi./Po 19 Phone No. • 5. Is thisproperty within 100 feet of a tidal wetland? *YES NO • • IF YES, SOUTHOLD TOWN TRUSTEES PERMITS MA REQUIRED 5.Provide survey,to scale,with accurate foundation plan and distances to property lines. - 5F�— 7.If elevation at any point on property is at 10 feet or below,must provide topographical data on survey. ••••6/T ['ATE OF NEW YORK) SS: DUNTY OF 3i -) , 'tt�, p-�a/71,/<o 5 714 being duly sworn,deposes and says that(s)he is the applicant (Name of individual signing contract)above named, . ')He is the ,/dd/i4/3e/2. (Contractor,Agent,Corporate Officer,etc.) • said owner or owners,and is duly authorized to perform or have performed the said work and to maim and file thic application; at all statements contained in this application are true to the best of his knowledge and belie and that the work will be :formed in the manner set forth in the application filed therewith. • vom to before me this /6day of , _ 20a r491 Notary Pub c , Signature of I:. . Ail EMILY HAMILL Notary Public,State of NeW YOlt • No.01HA50599$4 • • Qualified in Suffolk Cou Commission Expires May 08 o, • • i N PACHMAN & PACHMAN. P.G. ATTORNEYS • . 366 VETERANS MEMORIAL HIGHWAY COMMACK. NEW YORK 11725 :•' ;i; { t°'.' ,f .(631).543-2200• TELEGOPIER (631) 543-2271 COUNSEL HOWARD E. PACHMAN HARVEY B. BESUNDER MATTHEW E. PACHMAN August 8, 2001 Gerard P. Goehringer, Chairman Board of Zoning Appeals Town of Southold, Town Hall \\S La' 53095 Main Streeti� • .t P.O. Box 1179 AUG I 0 200 1 Southold, New York 11971 :•\ AUG 11:%/ • Re Application Na. 4927 Kace LI, LLC Request for Interpretation Dear Mr. Goehringer: As you are aware, my firm represents Kace LI, LLC with respect to the above-noted matter. It has been scheduled for the August 16th hearing calendar. I enclose a letter to Building Inspector Ed Forrester which I trust is self-explanatory. Upon the issuance of the building permit, the request for interpretation may well be withdrawn as moot. • I, thus, request that the hearing be adjourned until September 20th, pending action by the Building Department. Very truly yours, I Try VW 4 MATTHEW E. PACHMAN MEP\jlw enclosure cc: Ed Forrester, Building Inspector w/enc. Kace LI, LLC w/enc. F.\DATA\CLIENTS\KONTOKOS\Kace\Correspondence\Goehrmger ltr2 wpd /-41 PAGHMAN SC PAGHMAN. P.G. ATTORNEYS 'y 366 VETERANS MEMORIAL HIGHWAY COMMACK. NEW YORK 1 1 725 11)4° J (631) 543-2200 �� TELECOPIER (631) 54,3-2271 COUNSEL HOWARD E. PACHMAN HARVEY B BESUNDER MATTHEW E. PAGHMAN August 17,200 (1r f 7 1'^- 11[1 % rr/,Gerard P. Goehringer, Chairman Board of Zoning Appeals / 4 �:_ Town of Southold, Town Hall , :� 53095 Main Street "-11 1,44iorei P.O. Box 1179 Southold, New York 11971 Re: Kace LI, LLC Request for Interpretation Dear Mr. Goehringer: The following is in response to your letter dated August 13,2001,wherein you request a description of the above-referenced application. I enclose a letter from the Town of Southold Building Department, dated August 13, 2001,to Kace LI, LLC(Kace), stating that its application for a building permit was denied because of a purported conflict with Southold Town Code Section 100-42A. As you are aware, the Planning Board approved the site plan on July 11, 1983. You will recall that Southold Town Code §100-255(B) states: All site plans which have received final approval prior to the enactment of this Article shall remain valid for a period of three years from the date of such enactment. This period will begin when all governmental approvals have been obtained. (emphasis supplied) Since the Suffolk County Water Authority has not yet issued its approval, this period has not yet commenced. Thus, the applicant believes that the building official's denial must be reversed given the existence of the valid site plan. : a Fra " Page 2 Gerard P. Goehringer, Chairman August 17, 2001 I trust the foregoing is responsive to your inquiry. Very truly yours, MATTHEW E. PACHMAN MEP\jlw enclosures cc: Kace LI, LLC w/out encs. F•\Data\CLIENTS\KONTOKOS\Kace\Correspondence\Goehrmger Itr3 wpd APPEALS BOARD MEMBERS �,,'",,,, r, ,�o,'o�pSUFfo�,�Co; r Southold Town Hall /� Gerard P. Goehringer, Chairman /# 4` 53095 Main Road James Dinizio,Jr. - -d % P.O. Box 1179 Lydia A.Tortora �? Southold,New York 11971-0959 Lora S. Collins :`01, ` �** 0 ZBA Fax(631)765-9064 George Horning =_�Ql � �a0,i' i Telephone(631)765-1809 �' 1 BOARD OF APPEALS TOWN OF SOUTHOLD August 13, 2001 By Fax and Regular Mail . Matthew E. Pachman, Esq. Pachman & Pachman 366 Veterans Memorial Highway Commack, NY 11725 Re: Appl. No. 4927— Request for Interpretation Dear Mr. Pachman: II i We are in receipt of your letter dated August 8, 2001 with enclosed copy of a letter to Ed Forrester of the Building Department. Subsequently, we were advised that the applicant submitted a new application on August 0, 2001 requesting "multi-housing —two-family dwellings", and the Building Department issued another Notice of Disapproval dated August 13, 2001. Based on your letter and procedures of the Board, this will confirm that Application No. 4927, appealing the July 30, 2001 Notice of Disapproval issued by the Building Department, is withdrawn. If you would like to file another application, based on the August 10, 2001 • amended application and appealing the Building Department's August 13, 2001 Notice of Disapproval, please submit the application documents (listed on the attached instruction sheet). Please also provide a written description of the Board relief requested, before August 17, 2001. Very truly yours AsvoUtsZeA-14 - "101 Gerard P. Goehinger / Chairman Enclosure • ANTHONY B. TOHILL, P.G. ATTORNEYS AT LAW 12 FIRST STREET ANTHONY B.TOHILL P.O.BOX 1330 TELEPHONE: MICHAEL T.CLIFFORD RIVERHEAD, NEW YORK 11901-0903 (631)727-8383 OF COUNSEL September 28, 2001 Ms . Linda Kowalski Zoning Board of Appeals 53095 Main St. P.O. Box 1179 Southold, NY 11971 Dear Linda: I need (again) a favor. Would you be able to locate a file for a circa 1974 variance presented on behalf of the Mosback family (or Bramson) by, Lefferts Edson, Esq. for beachfront cottages now known as SCTM 1000-31-14-4 . 4 and 4 .5 . I am trying to prepare a report for the Bramsons who are the children/in-laws of the Mosbacks on the history of the land, and I therefore wish to review any file the Town might have preserved these many years . Many, many thanks . Very truly yours, AN Anthony B. 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' '', ' -•-,,,,i-..,,,,.1,;...":e... :/-:•,,'•,',,..";'17if^t%gr4-4:5;.•'-,N•.,;.tietir_',7-",&.(i-"kw,._,A4.=,ivCrAP14,,,,"AL,4+.:-..741., _,,,,47:4,-„,..,;„steiV.-444'-,*,,,..1-;•, ;(,,•-:,,s7.4----.-; . .•• • • - -, ---4... -`-, --= 1 -• :-'., ''.:'''••S'.'-'.:' '- •• • ---- / • ...4:4;„,-•,--;5.,..,!--,..,-..,:.--.,-,-,,,;.••-:‘,T..-2;_;.,--....--Z21,....:--.:',';z":'-'f.' •.,'= ---,7,4,;;;;1?•':`2"-•-`=-: - _,,-.,....",,..,4 -',;_.! .- -...,--,k:-...,,,,Iti,g--?,;;:r.- --;„-;134--4,-,g'e:2,:?- ' gAti,t-v-..X.:1:-;4";:-;ii''yrP;k7),--g=t-T-vt-Z"'''"i•-=';`I'vP '-':-:- -..--: ),,..- . •:.--;,:,-: -..• .::- .e'..- -; - 1 , .,,,,,,'_?,,,..., ••,:,„,-,•••-,,:. „IA,- .,., A .6,r._.1 , _ •• • ;.4.4•:';,", -.- ,. . . , • ��,� FFQ(�LTEL. 765-1802 = TOWN OF SOUTHOLD 0/4>°- OFFICE OF BUILDING INSPECTOR P.O. BOX 728 v' TOWN HALL •O�'`�� SOUTHOLD, N.Y. 11971 .t * , •' December 30 , 1986 Mr . E . Kontokosta 43 West 54th St . New York, N.Y. 10019 Dear Mr. Kontokosta : RE : Northwind Village North Road , Greenport Your application for a 4 Townhouse unit is ready for issuance of a permit . Unfortunat- ely, I can not give you same until I have written verification of water and sewerage from the proper agency . Yours truly, • Victor G . Lessard VGL :hdv Exec . Admin . odfX5613 . 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK X EMANUEL KONTOKOSTA, KACE REALTY CO. , and KACE CONSTRUCTION CORP. , Plaintiffs, STIPULATION AND ORDER DISCO TTEMTD 1 ACTION - against - THE VILLAGE OF GREENPORT, GEORGE HUBBARD, 87 CIV. 3432 (SAS) individually and as Mayor of the Village : of Greenport; JEANNE M. COOPER, GAIL F. HORTON, DAVID KAPELL and • WILLIAM LEIBLIEN, individually and as Members of the Village of Greenport • Board of Trustees, Defendants . X WHEREAS, plaintiffs are the owners of seventeen ( 17 ) acres of land in the Town of Southold, Suffolk County, New York, upon which they plan to build a 108 unit development to be known as Northwind Village; and WHEREAS, defendants provide water and sewer services for a territory which includes the Northwind Village development; and WHEREAS, plaintiffs submitted applications for water and sewer • services for the Northwind Village development in or about January 1983 and February 1987; and WHEREAS, plaintiffs commenced this action on or about May 20, 1987, and filed an amended complaint on or about March 8, 1988 alleging, inter alia, that defendants ' denial of plaintiffs' applications for water and sewer services for the Northwind Village development and defendants ' imposition of "backbone" fees upon the 0� Northwind Village development violated the Equal Protection and Due ,, �� AUD3 NS v-46bor 'f'`. Ed Wd2t :60 000E 20 ' idb : 'ON Xb : NOZId ( Process Clauses of the Fourteenth Amendment of the United States Constitution, 42 U.S.C. S 1983 and other applicable provisions of law; and WHEREAS, defendants have denied the allegations in the amended complaint charging them with unlawful treatment of plaintiffs and/or any other wrongdoing; WHEREAS, the decision of the Hon. John Cannella dated September 27, 1991, expressly upheld the imposition of backbone fees as constitutional, and dismissed each of the plaintiffs' causes of action except for its equal protection claim stemming from the 1983 application; and WHEREAS, the parties now seek to resolve the issues raised in this action without further proceedings; IT IS HEREBY STIPULATED AND AGREED by and between the parties in the above-captioned action, by their attorneys, as follows: 1. Defendants acknowledge that, as of the date of this Stipulation and Order, there is sufficient water capacity to service the 108 unit Northwind Village Development in accordance with the site plan approved by the Town of Southold planning board on July 11, 1983; and in accordance with plaintiffs' 1985 request (made with respect to the 1983 application) for 10,800 gallons per day ( "gpd") , annexed hereto as Exhibit "A", and 1987 request for 28,350 gpd, annexed hereto as Exhibit "B. " Specifically, it has been represented by plaintiffs that the 108 units will generate 10,800 gpd of average water demand or an estimated 28,350 gpd of average water demand. However, as set forth below, there is not 2 Ld Wd91 :60 0002 20 '1dti . '0N x : WObd ) L;) sufficient sewer capacity to accommodate either of these requests as of the date of the execution of this stipulation. Accordingly, subject to the terms and conditions of this Stipulation and Order, defendants hereby approve plaintiffs' 1985 and 1987 requests for water services for the Northwind Village Development. It is expressly understood that once sufficient sewer capacity of 8,640 gpd becomes available, the Village hereby agrees to provide 10,800 gpd of water to the Northwind Village Development, if plaintiffs choose to elect to execute water and sewer contracts as set forth in paragraph 5 below and pay "backbone" fees as set forth in paragraph 6 below. The Village will provide the remaining capacity of plaintiffs ' 1987 requests for water services if (i) the plaintiffs apply for additional sewer capacity pursuant to paragraph 3 below, and (ii) said application is granted. 2 . That the parties acknowledge that (i) there is not sufficient sewer capacity available to service plaintiffs' project due to restrictions placed upon the Village by the New York State Department of Environmental Conservation (DEC) pursuant to the consent order, State Pollutant Discharge Elimination System ( "SPDES") permit and related DEC correspondence (hereinafter referred to as "DEC Requirements" ) , attached hereto as Exhibit "C"; and (ii) the Village must comply with various conditions to attempt to obtain the DEC's approval to accommodate sewer capacity of 8,640 gpd. 3. Defendants agree to comply with the conditions set forth in the DEC Requirements, attached hereto as Exhibit "C. " In this 3 8d WdLT :60 000? ?0 'Jdy : 'ON Xdd : woad FR0I1 : FAX Na : Apr. 03 2000 08:27AM P2 manner, defendants will provide sufficient sewer capacity, subject to the aforesaid DEC Requirements (annexed hereto as Exhibit "C" ) , and any extension thereof, to satisfy the capacity of 8,640 gpd within four years of the date the stipulation is so ordered by the Court. Plaintiffs need not make any further application for sewer service, as its current application for 8,640 gpd will be deemed approved as of the date sewer capacity is available. It being expressly understood that plaintiff's application for both water and sewer must comply with the requirements set forth in paragraphs 3-7 of the December 23, 1987 H214 group report, annexed hereto as Exhibit "D, " with respect to engineering details . It also is expressly understood that plaintiff shall have the right to apply for additional sewer capacity up to 14, 000 gallons per day, after the Village advises the plaintiffs that there is sufficient sewer capacity to satisfy the 8,640 gpd request. Said application will not affect plaintiffs ' prior approval for 8, 640 gpd. 4 . Defendants agree to apply for, and to use their best efforts to obtain the approvals from the DEC which are required pursuant to the express terms of the aforesaid DEC Requirements so as to connect the Northwind Village Development to the Village of Greenport sewer system, including, but not limited to, approval for this new connection and approval for any increase in allocable sewer capacity as required by the aforesaid DEC Requirements (annexed hereto as Exhibit "C" ) . Plaintiffs agree to provide any information requested by the DEC, or to otherwise make reasonable 4 FRIiM FAX Na j Apr. 03 2000 08:27AM P3 efforts to assist the defendants in any manner requested by the DEC. 5 . When sufficient water and sewer capacity are available to satisfy the requirements of the Northwind Village development in accordance with paragraph 1, defendants shall notify plaintiffs in writing, by United States certified or registered mail, at 43 West 54th Street, New York, New York 10019. After plaintiffs ' receipt of such notice, plaintiffs will then have three (3) years to elect to execute contracts for water and sewer services with the Village of Greenport, by notifying the Office of the Mayor of the Village of Greenport in writing, by United States certified or registered mail. Nothing in this Stipulation and Order shall require plaintiffs to enter into contracts for water and sewer services. Should plaintiffs choose not to execute such contracts, they will not be obligated to pay the "backbone" fees provided for in paragraph 6 of this Stipulation and Order. If plaintiffs do not elect to enter into contracts for water and sewer services with the Village of Greenport within three (3) years of plaintiffs ' receipt of the aforesaid notice, the approvals of plaintiffs ' applications for water and sewer services pursuant to paragraphs 1 and 2 herein shall expire, and defendants will have no obligation to provide plaintiffs with water and sewer pursuant to this Stipulation. 6 . When all required approvals from the DEC are obtained, if and only if plaintiffs elect to enter into contracts with the village of Greenport as provided for in paragraph 5 of this 5 FRdM : , '` FAX NO. : ' Apr. 03 2000 08:28AM P4 Stipulation and Order, and subject to all the other terms and conditions set forth herein, plaintiffs shall pay to theVillageof Greenport "backbone" fees for the Northwind Village development of $2,570 per dwelling unit for water services and $2,585 per dwelling unit for sewer services for the 108 units at hand at the time of executing contracts for both water and sewer. If plaintiffs do not elect to execute contracts for water and sewer services within three (3) years pursuant to paragraph 5 above, their right to pay the backbone fees at the rates set forth above will also expire. 7. Defendants agree to pay plaintiffs the sum of eighty-five thousand ($85,000) dollars in full and final settlement of any claims that plaintiffs may have in this action against any and all of the defendants . Such payment shall be made within 30 days of the execution of this agreement by both parties, said 30 days to commence running upon the presentation of the stipulation to the Court to be so-ordered, and shall be by check made payable to "Emanuel M. Kontokosta, Kace Realty Co. and Kace Construction Corp. " and shall be delivered to and received by plaintiffs' attorneys, Gordon & Gordon, P.C. , at their offices at 437 Madison Avenue (40th Floor) , New York, New York 10022 . Upon receipt of said funds, plaintiffs will cause to be immediately filed a stipulation of dismissal with prejudice with the Court. 8 . Plaintiffs, by entering into this Stipulation, accept the benefits provided herein in full and complete satisfaction of any and all injuries and/or damages of any kind or description relating to any of the matters or claims alleged in the complaint herein. 6 9 . Nothing in this Stipulation shall be deemed an admission by defendants of any wrongdoing. 10 . Nothing in this Stipulation shall be deemed to constitute a regular practice or procedure by defendants, or shall apply to any project or development other than Northwind Village. 11 . This Stipulation shall inure to the benefit and detriment of the parties hereto and their respective successors, - executors, administrators and assigns to the extent that these successors seek to construct the Northwind village development. 12 . If the Village sells its water and sewer franchise to an entity which does not require backbone fees before such fees are due and owing to the Village, plaintiffs shall be relieved of the duty to pay backbone fees pursuant to paragraph 6 of this stipulation. 13 . This Stipulation shall not be used by any of the parties for any purpose whatsoever other than in an action or proceeding to enforce its terms. 14 . Any party to this action may submit this Stipulation to this Court to have this Stipulation "SO ORDERED" upon its execution by the parties ' counsel. This Stipulation will take effect only upon being so-ordered by the Court. 7 Sd NdST :60 000E E0 '1dti . •ON xi : wau Dated: New York, New York February 5, 1996 GORDON & GORDON, P.C. THURM & HELLER Attorneys for Plaintiffs Attorneys for Defendants 437 Madison Avenue - 40th Fl. 261 Madison Avenue New York, New York 10022 New York, New York 10016 (212) 355-3200 (212) 682-7000 By: uYr 1 �c S N J. SALTIEL MIC L A. MIRANDA (SS:8907) (MM:6413) SO 0-,E- D: / , .S.D.J -21:f0/ f67 • 8 • 9d Wd9i :60 0002 E0 '1dt1 : '0N XI=U : WObd _A At an IAS Term, Part 2O of the Supreme Court of the State of New York, held in and for the County of Suffolk, at Griffing Avenue, Riverhead, New York, on the `ft`' day of • 2000 . cc 6ti P R E S E N T: HONORABLE HOWARD BERLER, crvirle&-- X KACE LI, LLC, INDEX NO. 2000-10760 Plaintiff-Petitioner, -against- ORDER/JUDGMENT TOWN OF SOUTHOLD, Suffolk County, New York, and Supervisor, JEAN W. COCHRAN, Councilwoman LOUISA P. EVANS, Councilman FIa "z; WILLIAM D. MOORE, Councilman BRIAN G. � _,s "` � MURPHY, Councilman JOHN P. ROMANELLI, DEC 112O00 Councilwoman ALICE HUSSIE, in their EDW �4 �L f capacity and constituting the TOWN OFCLERKO�:S ��i � �:SOUTHOLD, O"` Defendants-Respondents . (Berler, J.S.C. ) X The above-captioned hybrid action/proceeding having been commenced, pursuant to Article 78 of the Civil Practice Law (CPLR) §3001 and New York State Town Law (TL) §265 and Rules, by filing and service of a Summons, Notice of Petition and Verified Petition- Complaint, dated April 26, 2000, seeking a Judgment : (a) annulling, vacating and setting aside a certain resolution of the respondents, Town of Southold, Suffolk County, New York and Jean W. Cochran, as AJ Page 1 of 6 &110‘) Supervisor of the Town of Southold, Louisa P. Evans, William D. Moore, Brian G. Murphy, John M. Romanelli and Alice Hussie, as members of the Town Board of the Town of Southold, which was adopted by the said Town Board on October 19, 1999 and filed in the office of the New York State Secretary of State on December 27, 19999 and which purported to adopt a Local Law changing the zoning district designation of the parcel of property owned by KACE LI, LLC, known as Suffolk County Tax Map #1000-040-3-1 from (HD) Hamlet Business District to (R80) Low Density Residential District, upon the grounds that the adoption of the aforesaid Local Law was not warranted by the facts, was illegal, unjust, void, arbitrary and capricious, and unauthorized and violative of the New York State Town Law, were not based on substantial evidence and was an abuse of any discretion properly vested in the respondents; and (b) (1) that a judgment be made and entered pursuant to the New York State Civil Practice Law and Rules section 3001 declaring that Southold Town Local Law No. 53 of 1999 purporting to re-zone plaintiff- petitioners subject property from "HD" to "R-80" is illegal, null and void, invalid, unenforceable and of no force and effect as having been adopted in contravention of the laws of the State of New York; and (2) that a declaration be made and judgment entered pursuant to New York Civil Practice Law and Rules Article 78, that Page 2 of 6 said Local Law was not warranted by the facts, was illegal , unjust, void, arbitrary and capricious, and violates the New York State Town Law and thus be reversed annulled, vacated and set aside; and (3) that the defendant-respondents, their agents, officials, or employees be permanently restrained, enjoined, estopped and prohibited from enforcing, implementing, or attempting to enforce or implement the provisions of said Local Law; and The Defendants-Respondents having moved by Notice of Motion, dated July 3, 2000, and Amended Motion, dated July 11, 2000, for a Judgment and Order under CPLR 7804 and CPLR 3211 (a) (2) , (3) and (7) dismissing the within Petition upon the grounds that : (a) the Petition fails to state a claim upon which relief can be granted pursuant to CPLR (a) (7) since an Article 78 proceeding cannot be used to challenge a legislative action; (b) pursuant to CPLR 3211 (a) (2) and (7) , the court is without subject matter jurisdiction, and no cause of action is stated upon which relief can be granted since petitioner did not file a TL §265 (1) Notice of Protest and Article 78 proceeding is an improper vehicle to challenge a legislative action; and (c) pursuant to CPLR 3211 (a) (2) and (3) , petitioner lacks standing to proceed in this action; and Plaintiff-Petitioner having moved by Cross-Motion, dated August 3 , 2000, requesting the court, pursuant to CPLR §§3211 (c) Page 3 of 6 • and 3212 , convert the Defendants-Respondents' motion to dismiss into a motion for summary judgment and upon such conversion, granting the Plaintiff-Petitioner the relief sought in the Petition-Complaint; or in the alternative, a judgment, pursuant to CPLR §3211, dismissing each of the affirmative defenses contained in Defendants-Respondents' answer on the ground that the defense therein stated have no merit; and The claims asserted in the Petition-Complaint as against respondents, Town of Southold, Suffolk County, New York, and Supervisor, Jean W. Cochran, as Supervisor of the Town of Southold, Louisa P. Evans, William D. Moore, Brian G. Murphy, John M. Romanelli and Alice Hussie, as members of the Town Board of the Town of Southold, and the motion and cross-motion having thereafter been regularly heard by the Court; and Upon reading and filing the Summons, Notice of Petition and Verified Petition/Complaint, dated April 26, 2000 ; Notice to Motion to Dismiss, dated July 3, 2000; Affidavit of Kenneth Robinson in Support of Motion to Dismiss dated, July 5, 2000; Defendants-Respondents' Verified Answer, dated July 6, 2000 ; Defendants-Respondents' Amended Notice of Motion to Dismiss dated July 11, 2000; Plaintiff-Petitioner' s Notice of Cross-Motion for Summary Judgment, dated August 3 , 2000; Affidavit of Emanuel M. Page 4 of 6 Kontokosta, sworn to the 27th day of July 2000 ; Plaintiff- Petitioner' s Memorandum of Law in Opposition to Motion To Dismiss and In Support of Motion for Summary Judgment Or In The Alternative To Dismiss Affirmative Defenses, dated August 3, 2000; Defendants- Respondents' Memorandum of Law in Opposition to Petitioner' s Cross- Motion To Convert Respondents' Motion To Dismiss Into A Motion For Summary Judgment, dated August 25, 2000; Defendants-Respondents' Affidavit in Opposition and In Further Support of Notice of Motion to Dismiss by Brian Murphy, sworn to the 25th day of August, 2000; . Plaintiff-Petitioner's Reply Memorandum of Law in Further Support of Plaintiff-Petitioner' s Motion for Summary Judgment, dated September 15, 2000; Reply Affirmation of Matthew E. Pachman, dated September 15, 2000; and the matter having been submitted on September 18 , 2000 and due deliberation having been had thereon; and Upon reading and filing the Memorandum Decision, dated November 15, 2000, issued herein, a copy of which is annexed hereto, which was duly entered in the Suffolk County Clerk' s Office . NOW, upon motion of Pachman & Pachman, P. C. , attorneys - for Plaintiff-Petitioner, it is Page 5 of 6 j ORDERED, ADJUDGED AND DECREED, that the motion by Plaintiff-Petitioner for a judgment annulling, reversing and setting aside the resolution of Defendants-Respondents, purporting to adopt Local Law 53 of 1999, is granted and said resolution is annulled, reversed and set aside; and it is further ORDERED, ADJUDGED AND DECREED, that the motion by Defendants-Respondents for an order dismissing action is denied; and it is further ORDERED, ADJUDGED, AND DECREED, that the cross-motion by Plaintiff-Petitioner for an order granting summary judgment is granted in all respects. GRANTED ENTER: DEC 4 2000 / EDWARD P.ROMAINE HON. HOWARD BERLER, J.S .C. CLERK OF SUFFOLK CQWIN F:\DATA\CLIENTS\KONTOKOS\Kace\Pleadings\Judgment s 5 ^•r DEC 2ugg Page 6 of 6 AFFIDAVIT OF_SERVICE STATE OF NEW YORK ) ss.: COUNTY OF SUFFOLK ) Barbara Burden, being duly sworn, deposes and says: 1. I am not a party to the action. 2. I am over 18 years of age. 3. I reside in Suffolk County,New York. 4. On November 21,2000,I served the foregoing Proposed Order/Judgment upon: Kenneth L. Robinson, Esq. Corletto&Associates,P.C. Attorney for Town of Southold 532 Broadhollow Road, Suite 135A Melville,New York 11747 631-249-3810 by depositing a true copy thereof enclosed in a post-paid wrapper in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State addressed to the following attorneys at the address set forth,being the address designated by said attorneys for that purpose. AdiVielatdelf Barbara Burden Sworn to before me this 21"day of November 2000. epti&k Atzeittieleix Notary Public ELLEN MULHOLLAND NO PUBLIC,Sue of New Ycrk No.52.4960201,SJfo12(; outi.fY Commission Expires 0ecer i:u 18, 2...47.,0, • • . . COIZI--ETO ..\.SSOC [ATES, P.C. A'TORINE'rc & COUNSELORS 1O7 MILL P(_AI.1 OAS SUITE 1000 n..13 „J., 5.32 BR I LLOW ROAD SUITE 200 SUITE DSA WHITE PLAINS NEW YORK ,0.i0.5 DANBURY. CONNECTICUT 06011.6100 TELEPHONE I.31a1 75 ..?•5O MELVILNEW YORK 117x7 TELEPHONE <203I 790-7S a0 TELEPHONE (6D11 FACSIMILE 19151 2Q5 • AC51M1 2a9'O B10 LE f20.71 79p_7536 FACSIMILE (A31> 2.4.9•31359 RELY ] WRITERS DIRECT fel%ille Or'flce Please Note Our New Area Code(631) June 14, 2001 Supreme Court of the State of New York Appellate Division - Second Judicial Department 45 Monroc Place Brooklyn, NY 11201 Attn.: Hon. James Edward Pelzer, Clerk RE: KACE LI, LLC v. TOWN OF SOUTHHOLD, ET AL Docket No.2001-00375 Our File No.: KIC 0003NY Dear Mr. Pelzer: In connection with the above-referenced matter, enclosed herewith please find the original WITHDRAWAL OF NOTICE OF MOTION TO EXTEND TIME TO PERFECT APPEAL AND THE NOTICE OF APPEAL, together with the original AFFIDAVIT OF SERVICE of same. Kindly file these documents in the file you maintain in connection with this matter and return the additional copy of this letter, date stamped to acknowledge receipt, to this office in the stamped, self-addressed envelope provided. Thank you. leery y yo "rs( . 'obinson, Of Counsel KLR:Imr Cc: Matthew Pachman, Gregory Yakaboski, Esq. C:\mydocuments\workfilcs\formletters\clerk letter supreme court—appeals >' _ jiJura 1 a '01 - 10: TI)IJNHALL 515 755 1823 p7`692 902 NEW YORK STATE SUPREME COURT Our File No.: KIC 0003 NY APPELLATE DIVISION: SECOND DEPARMENT Docket No.: 2001-00375 X Index No.: 00.10760 KACE LI, LLC, Petitioner/RGspondent, STIPULATION OF WITHDRAWAL OF -against- MOTION TO EXTEND TE TO APPEAL AND TOWN OF SOUTHOLD, Suffolk County,New York, NOTICE OF APPEAL and Supervisor JEAN W. COCHRAN, Council woman LOUISA P. EVANS, Councilman WILLIAM D. MOORS,Councilman BRIAN 0.MURPHY, Councilman IOW P.ROMANELLI, and Council- woman ALICE HUSSIE,in their capacity and constituting the TOWN OF SOUTHOLD, Defendants/Appellants. Y MY���w��M���y���N -X IT IT IS HEREBY STIPULATED BY COUNSEL FOR THE DEFENDANTS/APPELLANTS THAT: 1. AppeIlant's Notice of motion to enlarge the tune to perfect the appeal, which motion is returnable June 22,2001, before this Court, is hereby withdrawn; and 2. Appellant's Notice of Appeal dated December 27,2000 and Appellant's Amended Notice of Appeal dated January 11,2001, are hereby withdrawn. Dated: Melville, New York June 14, 2001 ?/ 0 =-- -- X92 D0: • • ai-Ir;IK, L. •binson, Eoq. •f Counsel Corleto&Associates, P.C. Attorneys for Defendant/Appellants 532 Broldhollow Road, Suite 13M Melville,New York 11747 (631) 249-3810,, REGO s ,OSKI, ESQ. Town. . - Town of Southold 53095 Route 25 Southold,NY 11971-0959 TO: Matthew E.Packman,Esq. Paclmoan&Pachniaa,PC 366 Veterans Memorial Highway Commack,NY 11725 -)2k17 - V A •1 . r § 100-40 ZONING § 100-40 ARTICLE IV M Light Multiple-Residence District § 100.40. Use regulations. In an M District,no building or premises shall be used, and no building or part of a building shall be erected or altered which is arranged,intended or designed to be used,in whole or in part,for any use except the following: A. (Amended 530-75 by LL. No, 3-19151 Permitted uses, subject to site plan approval of the Planning Board in accordance with Article XIII hereof. • (1) Any permitted use set forth in,and as regulated by, § 100-30A of this chapter. (2) Multiple dwellings not exceeding one hundred twenty it-._tor five (125)feet in length designed for and occupied by not more than four (4) families. ( (3) Boarding- and tourist houses. B. Uses permitted by special exception by the Board of Appeals. The following uses are permitted as a special exception by the Board of Appeals, as hereinafter provided,and subject to site plan approval by the Planning Board in accordance with.Article XIII hereof: (1) Any special exception use set forth in.and as regulated by. § l00-30B of this chapter. except that the use set forth in§ 100.303(16)shall not require site plan approval. [Amended 7-1-86 by L.L.No.5.19861 `"' tt C. Accessory uses. III Any accessory use set forth in, and as regulated by, § 100.30C of this chapter. (2) Accessory uses on the same lot with and customarily incidental to any permitted use and not involving a separate business. (:l) Signs. subject to the following requirements: \�J� t::) 11ne (I) :ulv.'rti\ine or douhh'- fared. not mor•r• than fifty 131)).quart' fret in art-l. 1 p Q0 10029 ' ' rA�/ •'7 Cl f ARTICLE IV Hamlet Density(HD) Residential District [Added 1-10-1989 by L.L. No. 1-19898] § 100-40 * * * * § 100-41 * * * * § 100-42. Use regulations. In the HD District, no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part, for any use except the following: A. Permitted uses. (1) One-family detached dwelling. (2) Two-family dwelling. (3) Continuing care facility and life care community. [Added 11-12-1996 by L.L.No.20-1996] B. Uses permitted by special exception by the Board of Appeals. The following uses are permitted as a special exception by the Board of Appeals, as hereinafter provided, and subject to site plan approval by the Planning Board: (1) Multiple dwellings, townhouses, row or attached houses. (2) Accessory apartments in single-family residences as set forth in and regulated by § 100-31B(13) of the Agricultural-Conservation District. 10054.2 2-25_97 f _ 613 N.Y.S.2d 264 Page 1 (Cite as: 205 A.D.2d 629, 613 N.Y.S.2d 264) Supreme Court, Appellate Division, Second ordinance. Department, New York. **264 Stephens, Buderwitz & Baroni, White Plains (Joseph M Buderwitz and Roland A. Baroni, Jr., on In the Matter of Mari A. KENNEDY, the brief), for appellant Respondent, v. Keegan & Spolzino, P.C.,.Mount Kisco (Robert A. ZONING BOARD OF APPEALS OF TOWN OF Spolzino, on the bnef), for respondent. NORTH SALEM, Appellant. Before MANGANO, P.J , and BRACKEN, June 13, 1994 PIZZUTO and HART, JJ. Adjoining landowner brought proceeding to review MEMORANDUM BY THE COURT. determination of town's zoning board of appeals, which ruled that order to remedy violations issued by *629 In a proceeding pursuant to CPLR article 78 to • town building inspector was of no force and effect. review a determination of the Zoning Board of The Supreme Court, Westchester County, Carey, J., Appeals of the Town of North **265 Salem dated vacated determination, and board appealed. The July 12, 1990, which, after a hearing, granted the Supreme Court, Appellate Division, held that board's appeal of Richard A. Romanski and ruled that an determination that owner's use of property constituted undated Order to Remedy Violation issued by *630 lawful nonconforming use under town's zoning the Town Building Inspector with respect to his ordinance had rational basis and was supported by property is of no force or effect, the appeal is from substantial evidence. (1) a judgment of the Supreme Court, Westchester County (Carey, J.), dated April 2, 1991, which Judgment reversed; determination confirmed; vacated the determination, and (2) so much of an proceeding dismissed; appeal dismissed in part. order of the same court, entered June 18, 1991, as denied the appellant's motion for reargument and West Headnotes renewal. [1] Appeal and Error C° 110 ORDERED that the judgment is reversed, the 30k110 determination is confirmed, and the proceeding is dismissed on the merits; and it is further, No appeal lies from denial of reargument. [1] ORDERED that the appeal from so much of the [2] Zoning and Planning 0322 order as denied the branch of the appellant's motion 414k322 which was for reargument is dismissed, as no appeal lies from the denial of reargument; and it is further, Determination of town's zoning board of appeals that owner's use of property, which was improved with ORDERED that the appeal from so much of the two structures that originally served as church and order as denied the branch of the appellant's motion parish house, constituted lawful nonconforming use which was for renewal is dismissed as academic in under town's zoning ordinance had rational basis and light of our determination on the appeal from the was supported by substantial evidence; owner used judgment, and it is further, former parish house as his residence and former church as studio/office/workshop ORDERED that the appellant is awarded one bill of costs. [3] Zoning and Planning€ 363 414k363 [2] The Supreme Court improperly vacated the . determination by the Zoning Board of Appeals of the When town's building inspector determined that -Town of North Salem (hereinafter the Zoning Board), property, and owner's use thereof, fully complied which, inter alia, decided that the use of the subject with zoning ordinance, new building inspector could property by the present owner was a lawful b‘ not, ten years later, find that same use violated same nonconforming use under the 1965 Zoning Ordinance b' Copr ©West 2001 No Claim to Orig. U.S Govt. Works (q) 1 i� \, �! so,' H t 613 N.Y.S 2d 264 Page 2 (Cite as: 205 A.D.2d 629, *630, 613-N.Y.S.2d 264, **265) of the Town of North Salem, and vacated an Order to required under the 1965 Zoning Ordinance This is Remedy Violation issued to him arising out of his also the position taken by the petitioner on this appeal. failure to obtain a certificate of occupancy. However, even assuming that a Certificate of Occupancy was in fact required, "[a] use which is The real property in question, formerly owned by the otherwise lawfully maintained may be continued as a United Methodist Church, is improved with two nonconforming use although the user failed to procure structures, which originally served as a church and or renew a license, certificate, or other permit parish house. The current owner, who purchased the required by law * * * The failure to obtain a license property in 1979, utilizes the parish house as a does not render the use unlawful in the sense intended residence and the former church building as a studio/ by zoning ordinances which preserve existing lawful office/workshop in connection with his interior design uses" (1 Anderson, New York Zoning Law and business. The petitioner is an immediately adjoining Practice § 6.12, at 219-220 [3d ed]; see, Matter of landowner. In 1979, in connection with his purchase Rubin v. Wallace, 63 A.D.2d 763, 404 N Y.S.2d of the property, the current owner requested a 733; City of New York) v. Victory Van Lines, 69 Certificate of Occupancy from the Town Building A.D.2d 605, 418 N.Y.S.2d 792). Further, since the Inspector. The Town Building Inspector provided Town's Building Inspector determined in 1979 that the owner with a letter stating, in essence, that the the property, and the owner's use thereof, fully property "was pre-existing to any requirement of a complied with the 1965 Zoning Ordinance, the new Certificate of Occupancy". The Building Inspector's Building Inspector could not, 10 years later, find that letter further stated that the parish house was a legal the same use violated the same ordinance (see, residence and the church building was a legal Village Green Condominium Corp. v. Nardecchia, 85 accessory structure and, thus, the property was in A.D.2d 692, **266 693, 445 N.Y.S.2d 494). compliance with the applicable 1965 Zoning Accordingly, we sustain the Zoning Board's Ordinance. In addition, shortly after the owner's determination that the owner's use of the property purchase, the Building Inspector responded to the constituted a lawful nonconforming use under the petitioner's *631 inquiry and concluded that the Town's 1965 Zoning Ordinance, since it had a property owner's use of the church building as an "artist's office/studio" complied with the applicable rational basis and was supported by substantial zoning ordinance. It is uncontroverted that the evidence in the record (see, Matter of Harwood v. present zoning ordinance, adopted in 1987, does not Board of Trustees of Inc. Vil. of Southampton, 176 permit the owner's use of the property. A.D.2d 291, 574 N.Y.S.2d 217). . [3] In 1989, after a new Building Inspector took Finally, we find that the additional reasons which the office, the petitioner again registered a complaint and petitioner contends warrant vacating the Zoning this time it was determined that the property owner's Board's resolution are without merit. use was not lawful because he did not have a Certificate of Occupancy, which he decided was END OF DOCUMENT Copr. ©West 2001 No Claim to Orig. U.S Govt. Works FROM : NORTH FORK ENVIRONMENTAL C="' C FAX NO. : 631-298-4649y to d 2902 05:54PM P1 ., k . • 1 yy ,itlite ,ry ax;6M-2994649 ''''•'.;;;11'' ;. i : ' in,— 25 at:l.ave an ts,P8•Box 799,MattitucK,NY 1'1952 Tel.:631-2984990 brg ` ' ntec1®ootonllne.net . . • , 'Ian' 24,2092. ' ` ` ; . . - • .. ' :Mem' hers;of the oarcl . . . ;, . Soutbold 'orn Zoning Board of Appeals . ".,S:ou'thold;'•New cork 1.1-971,•• • • ,} J 4 ,.Dear Mr:Goerrhirlger&Members.of the Board:. ,".' . • • .. - ' • ,'On,~behalf•.of North Fork,Environtnental'Council,-I submit the following comments concerning the ` . , •'''. application of,'Kace'LI,LLC to overturn the Southold Town Building Inspector's Notice of '• .. ':• ;Disapproval;dated August 13',-.2.•(.101.. • • - ' The,original site'plan,which as approved in • •1983,allowed fog•the constructiion.of inulti�fami1y ,' • • •` ,resiidences•on ;thc property The application before the Building Department'is for two-fat,aily , '• ' ,dwellings...According to.the Planning Board in correspondence'.to the Zoning Board of Appeals. • `„ ," '::dated 'Scptember 20 of this year,the.application would"constitute a neww,projecf'and therefore ' ' • ,'v�otild require a newrsite plan .the. rev.kw tinder SEQRA: NPEC,supports the Planning :Board's`assessment of the'situation'and we encourage the Board of Appeals'.to deny the applicant's '_request to'reverse-the-Building.Insppector's disapproval. - , • '.,The validity;of the current site plan,'approved almost 20 years ago,remains questionable.A project .,'� .. ' ,of this•scope and lata itude.will negatively,impact:the community in a number,of tivays,'including , ,: ' •increasing'thg traffic`on an already'stressed infrastructure,and increasing the•tax-bbrden for existing ., ' ' • . residents due to potential inipacts`on the school district.'It has not,been established;as to`whether • •.. the:projcot'will,be supplied with necessary water and•sewer services from,the appropriate entities. • ' .,I encourage the Board.toconsider these•facts in your,'deliberations and deny the applicant's requests , . ' Respectfully; ' • , .`• • • , ' • .. 4411141:1144.L..%,,' - . . .. • "'Gw~rynri,Schroeder`• . , ' , , .' .. • " .. . • .IFC.Soutbgld•Coordinator• .' . , . . • • anon proorganization,for tIie'preseruatiob of land,sea,air and q fFt quality of life . • . , . ' , . . i ' printed on " recyciea paper., - . •. •- • ' , , . MEMORANDUM TO: SOUTHOLD ZONING BOARD OF APPEALS FROM: DAVID J. S. EMILITA, AICP SUBJECT: HAMLET DENSITY DISTRICT ILLUSTRATIVE TABLE DATE: 1/24/2002 CC: PURPOSE OF THIS MEMO The purpose of this Memo is to present a table illustrating the hierarchy of approvals necessary from the Town of Southold in the Hamlet Density District to build a single one-family dwelling, a single two-family dwelling, a single multiple-family dwelling or more than one of any of these on a "single and separate" lot. It is intended to supplement the affidavit submitted to the Board on the matter of KACE LI, LLC. Use Permitted with No Permitted only Permitted only Site Plan with Site Plan with Special Exception plus Site Plan 1 one-family dwelling Yes,Bldg. Permit Only 1 two-family NO YES dwelling 1 multiple dwelling, NO NO YES townhouse, etc. More than one of NO NO YES any of the above 6k-vJ OFFICE OF • ZONING BOARD OF APPEALS -"SotLho/d Town Hall 533095 Main Road P.O. Box 1179 Southold, NY 11971-0959 (� (631) 765-1809 (fax 9064) (� Office Emails: Linda.Kowalskic TownofSoutholod.ny.us Paula.QuintierikTownofSouthold.ny.us MEMORANDUM �j TO: Pachman & Pachman, Esqs. Anthony B. Tohill, P.C. FROM: Office of the Board of Appeals DATE: November 28, 2001 SUBJECT: Appl. No. 5003 — Kace LI Inc. This will confirm that the above hearing is calendared for the Board's Meeting of Thursday, January 24, 2002. The Meeting is expected to begin with agenda items on other pending reviews at approximately 6:45 p.m. The above hearing is expected to begin about 7:00 p.m. Please be sure to notify your clients of the above hearing date (instead of January 17, 2002 which is not a calendared meeting date). Extra notice will also appear in the official newspaper of the Town to confirm the date and time that it is scheduled to reconvene. Please feel free to contact our office if you have any questions, or whether you wish to review the file.for updates or information received in the written record to date. Thank you. • cc: ZBA Chairman and Members Tu�v. ekrr� ZBA Form Letter 10/1/01 4, /\ Aly ANTHONYB. TOMO., P.C. ATTORNEY'S AT LAW P.O. 'box 1330 631-727-83E;3 Riverhead, New York 11901-0903 FAX 631.727-6336 November 26, 2001 VIA FACSIMILE_ 765-9064 Linda Kowalski Town of Southold ZBA 53095 Main Rd. Southold, NY 11971 Re: Kace LI, LLC: Appeal No. 5003 Dear Linda: As per your request today attached is a list of my clients' names with respect the captioned application. When the minutes are finalized I would appreciate receiving a copy directly. Lastly, this will confirm that I have notas yet submitted: any exhibits. Very truly yours, Anthony B. Tohill ABT/lrn Enc. ZO"d d9t7= ZO CO-9Z-,n0N • `i - w / 7"-, . Zoning Board of Appeals -- Town of Southold In Re The Matter of the Application of Race LI, LLC Appeal No. 5003 Client List of Anthony B. Tohill, P.C. : Joseph and Carol Berardino . David and Donna Campbell ,Michael and Nancy Foley Stephen and Donna Grzesikd Stefan and Norma Grzesikd Ena Mannix Martin and Doris Pheffer K .mon H. Retzos Nelle and Jolyon Fox Stern Ronald W. Suprenant Robert and Dorothy Young John and Anne Walsh £O'd d9t=ZO I0-9Z-AON 4 . 1'me SRant ` pate Sent MHiele 1 .-.- ANTHONY B. TOEIII.I,, P.C. ATTORNEYS AT LAW P.O. Box 1330 631-72'7-•S383 Riverhead, New York 11901-0903 FAX 631-727-6336 TELEFAX. TRANSMITTAL SHEET TO: Linda Kowalski FAX NO: 765-9064 FROM: ANTHONY B.• TOHILL, P.C. Fax Number: 631-727-6336 NUMBER OF PAGES, INCLUDING THIS PAGE: 3 DATE: November 26, 2001 RE: Kace LI, . LLC -- Appeal No. 50Q3 ATTACHMENTS: Letter COMMENTS: A.S.T. THZS COMMUNICA'T'ION MAY CONTAIN INFORMATION WHICH IS CONFIDENTIAL AND/OR PROTECTED BY THE ATTORNEY-CLIENT OR OTHER APPLICABLE PRIVILEGE. IT IS INTENDED FOR RECEIPT AND USE SOLELY BY THE INDIVIDUAL(S) NAMED ABOVE. IF YOU ARE NOT THE INTENDED RECIPIEN',I', _ OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THIS COMMUNICATION TO THE .INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISCLOSURE, DISTRIBUTION OR COPYING OF 'PHIS DOCUMENT IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE AND RETURN THE ORIGINAL DOCUMENT TO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL, SERVICE. THANK YOU. Fax•cvh IO'd d90-17; O 10-9Z-AON c31 TEL. 765-1802 1p TOWN OF SOUTHOLD OFFICE OF BUILDING INSPECTOR P.O. BOX 728 TOWN HALL _ �0�t`�, SOUTHOLD, N.Y. 11971 December 30 , '1986 Mr . E . Kontokosta 43 West 54th St . New York, N .Y . 10019 Dear Mr . Kontokosta : ' RE : Northwind Village North Road , Greenport Your application for a 4 Townhouse unit is ready for issuance of 'a permit . Unfortunat- ely, I can not give you same until I have written verification of water and sewerage from the proper agency . Yours truly, • • Victor G. Lessard VGL :hdv Exec . Admin . m 5-6b 111, 41110 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK X EMANUEL KONTOKOSTA, KACE REALTY CO. , and KACE CONSTRUCTION CORP. , Plaintiffs, STIPULATION AND ORDER . . DISCONPINDING ACTION - against - THE VILLAGE OF GREENPORT`, GEORGE HUBBARD, 87 CIV. 3432 (SAS) individually and as Mayor of the Village : of Greenport; JEANNE M. COOPER, GAIL F. HORTON, DAVID KAPELL and • WILLIAM LEIBLIEN, individually and as Members of the Village of Greenport • Board of Trustees, Defendants . X WHEREAS, plaintiffs are the owners of seventeen ( 17) acres of land in the Town of Southold, Suffolk County, New York, upon which they plan to build a 108 unit development to be known as Northwind Village; and WHEREAS, defendants provide water and sewer services for a territory which includes the Northwind Village development; and WHEREAS, plaintiffs submitted applications for water and sewer services for the Northwind Village development in or about January 1983 and February 1987; and' WHEREAS, plaintiffs commenced this action on or about May 20, 1987, and filed an amended complaint on or about March 8, 1988 alleging, inter alia, that defendants' denial of plaintiffs' applications for water and sewer services for the Northwind Village development and defendants ' imposition of "backbone" fees upon the p� Northwind Village development violated the Equal Protection and Due -t`� r Ae nc\ OY V-Vbi tP,A Ed Wd2I:60 0002 20 'add . '0N XHd : WOad S • Process Clauses of the Fourteenth Amendment of the United States Constitution, 42 U.S.C. S 1983 and other applicable provisions of law; and WHEREAS, defendants have denied the allegations in the amended complaint charging them with unlawful treatment of plaintiffs and/or any other wrongdoing; WHEREAS, the decision of the Hon. John Cannella dated September 27, 1991, expressly upheld the imposition of backbone fees as constitutional, and dismissed each of the plaintiffs' causes of action except for its equal protection claim stemming from the 1983 application; and WHEREAS, the parties now seek to resolve the issues raised in ' this action without further proceedings; -1T' IS HEREBY STIPULATED AND AGREED by and between the parties in the above-captioned action, by their attorneys, as follows: 1. Defendants acknowledge that, as, of the date of this Stipulation and Order, there is sufficient water capacity to service the 108 unit Northwind Village Development in accordance with the site plan approved by the Town of Southold planning board on July 11, 1983; and in accordance with plaintiffs' 1985 request (made with respect to the 1983 application) for 10,800 gallons per day ( "gpd") , annexed hereto as Exhibit "A", and 1987 request for 28,350 gpd, annexed hereto as Exhibit "B. " Specifically, it has been represented by plaintiffs that the 108 units will generate 10,800 gpd of average water demand or an estimated 28,350 gpd of average water demand. However, as set forth below, there is not 2 Ld WdSI :60 000E 20 'Add : '0N Xdd : W021d • 4iil sufficient sewer capacity to accommodate either of these requests as of the date of the execution of this stipulation. Accordingly, subject to the terms and conditions of this Stipulation and Order, defendants hereby approve plaintiffs ' 1985 and 1987 requests for water services for the Northwind Village Development. It is expressly understood that once sufficient sewer capacity of 8,640 gpd becomes available, the Village hereby agrees to provide 10,800 gpd of water to the Northwind Village Development, if plaintiffs choose to elect to execute water and sewer contracts as set forth in paragraph 5 below and pay "backbone" fees as set forth in paragraph 6 below. The Village will provide the remaining capacity of plaintiffs' 1987 requests for water services if (i) the plaintiffs apply for additional sewer capacity pursuant to paragraph 3 below, and (ii) said application is granted. 2 . That the parties acknowledge that (i) there is not sufficient sewer capacity available to service plaintiffs' project due to restrictions placed upon the Village by the New York State Department of Environmental Conservation (DEC) pursuant to the consent order, State Pollutant Discharge Elimination System ( "SPDES") permit and related DEC correspondence (hereinafter, referred to as "DEC Requirements" ) , attached hereto as Exhibit "C"; and (ii) the Village must comply with various conditions to attempt to obtain the DEC's approval to accommodate sewer capacity of 8,640 gpd. 3. Defendants agree to comply with the conditions set forth in the DEC Requirements, attached hereto as Exhibit "C. " In this 3 8d WdLI:60 0002 20 '-add : .ON Xdd : WObd FROM : FAX NO. : lb Apr. 03 2000 08:27AM P2 manner, defendants will provide sufficient sewer capacity, subject to the aforesaid DEC Requirements (annexed hereto as Exhibit "C" ) , and any extension thereof, to satisfy the capacity of 8,640 gpd within four years of the date the stipulation is so ordered by the Court. Plaintiffs need not make any further application for sewer service, as its current application for 8,640 gpd will be deemed approved as of the date sewer capacity is available. It being expressly understood that plaintiff's application for both water and sewer must comply with the requirements set forth in paragraphs 3-7 of the 'December 23, 1987 H2M group report, annexed hereto as Exhibit "D, " with respect to engineering details. It also is expressly understood that plaintiff shall have the right to apply for additional sewer capacity up to 14,000 gallons per day, after the Village advises the plaintiffs that there is sufficient sewer capacity to satisfy the 8,640 gpd request. Said application will not affect plaintiffs ' prior approval for 8,640 gpd. 4. 'Defendants agree to apply for, and to use their best efforts to obtain the approvals from the DEC which are required pursuant to the express terms of the aforesaid DEC Requirements so as to connect the Northwind Village Development to the Village of Greenport sewer system, including, but not limited to, approval for this new connection and approval for any increase in allocable sewer capacity as required by the aforesaid DEC Requirements (annexed hereto as Exhibit "C") . Plaintiffs agree to provide any information requested by the DEC, or to otherwise make reasonable 4 FROM : . fie FAX NO. : 41110 Apr. 03 2000 08:27AM P3 efforts to assist the defendants in any manner requested by the DEC. 5 . When sufficient water and sewer capacity are available to satisfy the requirements of the Northwind Village development in accordance with paragraph 1, defendants shall notify plaintiffs in writing, by United States certified or registered mail, at 43 West 54th Street, New York, New York 10019 . After plaintiffs ' receipt of such notice, plaintiffs will then havethree (3) years to elect to execute contracts for water and sewer services with the Village of Greenport, by notifying the Office of the Mayor of the Village of Greenport in writing, by United States certified or registered mail. Nothing in this Stipulation and Order shall require plaintiffs to enter into contracts for water and sewer services. Should plaintiffs choose not to execute such contracts, they will not be obligated to pay the "backbone" fees provided for in paragraph 6 of this Stipulation and Order. If plaintiffs do not elect to enter into contracts for water and sewer services with the Village of Greenport within three (3) years of plaintiffs' receipt of the aforesaid notice, the approvals of plaintiffs ' applications for water and sewer services pursuant to paragraphs 1 and 2 herein shall expire, and defendants will have no obligation to provide plaintiffs with water and sewer pursuant to this Stipulation. 6. When all required approvals from the DEC are obtained, if and only if plaintiffs elect to enter into contracts with the Village of Greenport as provided for in paragraph 5 of this 5 FROM FAX NO. : 4110 Apr. 03 2000 08:28AM P4 Stipulation and Order, and subject to all the other terms and conditions set forth herein, plaintiffs shall pay to the Village of Greenport "backbone" fees for the Northwind Village development of $2,570 per dwelling unit for water services and $2,585 per dwelling unit for sewer services for the 108 units at hand at the time of executing contracts for both water and sewer. If plaintiffs do not elect to execute contracts for water and sewer services within three (3) years pursuant to paragraph 5 above, their right to pay the backbone fees at the rates set forth above will also expire. 7. Defendants agree to pay plaintiffs the sum of eighty-five thousand ($85, 000) dollars in full and final settlement of any claims that plaintiffs may have in this action against any and all of the defendants . Such payment shall be made within 30 days of the execution of this agreement by both parties, said 30 days to commence running upon the presentation of the stipulation to the Court to be so-ordered, and shall be by check made payable to "Emanuel M. Kontokosta, Kace Realty Co. and Race Construction Corp. " and shall be delivered to and received by plaintiffs ' attorneys, Gordon & Gordon, P.C. , at their offices at 437 Madison Avenue (40th Floor) , New York, New York 10022 . Upon receipt of said funds, plaintiffs will cause to be immediately filed a stipulation of dismissal with prejudice with the Court. 8. Plaintiffs, by entering into this Stipulation, accept the benefits provided herein in full and complete satisfaction of any and all injuries and/or damages of any kind or description relating to any of the matters or claims alleged in the complaint herein. 6 4111 9 . Nothing in this Stipulation shall be deemed an admission by defendants of any wrongdoing. 10. Nothing in this Stipulation shall be deemed to constitute a regular practice or procedure by defendants, or shall apply to any project or development other than Northwind Village. 11 . This Stipulation shall inure to the benefit and detriment of the parties hereto and their respective successors, executors, administrators and assigns to the extent that these successors seek to construct the Northwind Village development. 12. If the Village sells its water and sewer franchise to an entity which does not require backbone fees before such fees are due and owing to the Village, plaintiffs shall be relieved of the duty to pay backbone fees pursuant to paragraph 6 of this stipulation. 13 . This Stipulation shall not be used by any of the parties for any purpose whatsoever other than in an action or proceeding to enforce its terms. 14. Any party to this action may submit thisStipulation to this Court to have this Stipulation "SO ORDERED" upon its execution by the parties ' counsel. This Stipulation will take effect only upon being so-ordered by the Court. 7 Sd WdS L:60 0002 20 '1dti : 'ON xtid : WObd 411/ 4110 Dated: New York, New York February 5, 1996 GORDON & GORDON, P.C. THURM & HELLER Attorneys for Plaintiffs Attorneys for Defendants 437 Madison Avenue - 40th Fl. 261 Madison Avenue New York, New York 10022 New York, New York 10016 (212) 355-3200 (212) 682-7000 By: � �" SN J. T L SALTIEL M C A. MIRANDA (SS:8907) (MM:6413) SO 0""E" D: IF .4 p.s.D.J l 8 9d Nd9I:60 0002 20 '1dd : 'ON XdJ : WONd T . 4 At an IAS Term, Part '27 of the Supreme Court of the State of New York, held in and for the County of Suffolk, at Griffing Avenue Riverhead, New York, on the 44/ day of N uvu2000 . PRESEN T: HONORABLE HOWARD BERLER, Tx3S7-16` KACE LI, LLC, INDEX NO. 2000-10760 Plaintiff-Petitioner, -against- ORDER/JUDGMENT TOWN OF SOUTHOLD, Suffolk County, New York, and Supervisor, JEAN W. COCHRAN, Councilwoman LOUISA P. EVANS, Councilman WILLIAM D. MOORE, Councilman BRIAN G. .M URPHY, Councilman JOHN P. ROMANELLI, DECDEC 1 200(1 Councilwoman ALICE HUSSIE, in their EDWARD P d` w�. - capacity and constituting the TOWN OF CLERKO S�S�FO.:2: �{ �; i SOUTHOLD, Defendants-Respondents . (Berler, J. S.C. ) X The above-captioned hybrid action/proceeding having been commenced, pursuant to Article 78 of the Civil Practice Law (CPLR) §3001 and New York State Town Law (TL) §265 and Rules, by filing and service of a Summons, Notice of Petition and Verified Petition- Complaint, dated April 26, 2000, seeking a Judgment : (a) annulling, vacating and setting aside a certain resolution of the respondents, Town of Southold, Suffolk County, New York and Jean W. Cochran, as RAY Page 1 of 63 le\ � ' Qat 411/ 4 Supervisor of the Town of Southold, Louisa P. Evans, William D. Moore, Brian G. Murphy, John M. Romanelli and Alice Hussie, as members of the Town Board of the Town of Southold, which was adopted by the said Town Board on October 19, 1999 and filed in the office of the New York State Secretary of State on December 27, 19999 and which purported to adopt a Local Law changing the zoning district designation of the parcel of property owned by KACE LI, LLC, known as Suffolk County Tax Map #1000-040-3-1 from (HD) Hamlet Business District to (R80) Low Density Residential District, upon the grounds that the adoption of the aforesaid Local Law was not warranted by the facts, was illegal, unjust, void, arbitrary and capricious, and unauthorized and violative of the New York State Town Law, were not based on substantial evidence and was an abuse of any discretion properly vested in the respondents; and (b) (1) that a judgment be made and entered pursuant to the New York State Civil Practice Law and Rules section 3001 declaring that Southold Town Local Law No. 53 'of 1999 purporting to re-zone plaintiff- petitioners subject property from "HD" to "R-80" is illegal, null and void, invalid, unenforceable and of no force and effect as having been adopted in contravention of the laws of the State of New York; and (2) that a declaration be made and judgment entered pursuant to New York Civil Practice Law and Rules Article 78 , that Page 2 of 6 411/ 416 said Local Law was not warranted by the facts, was illegal , unjust, void, arbitrary and capricious, , and violates the New York State Town Law and thus be reversed annulled, vacated and set aside; and (3) that the defendant-respondents, their agents, officials, or employees be permanently restrained, enjoined, estopped and prohibited from enforcing, implementing, or attempting to enforce or implement the provisions of said Local Law; and The Defendants-Respondents having moved by Notice of Motion, dated July 3, 2000, and Amended Motion, dated July 11, 2000, for a Judgment and Order under CPLR 7804 and CPLR 3211 (a) (2) , (3) and (7) dismissing the within Petition upon the grounds that : (a) the Petition fails to state a claim upon which relief can be granted pursuant to CPLR (a) (7) since an Article 78 proceeding cannot be used to challenge a legislative action; (b) pursuant to CPLR 3211 (a) (2) and (7) , the court is without subject matter jurisdiction, and no cause of action is stated upon which relief can be granted since petitioner did not file a TL §265 (1) Notice of Protest and Article 78 proceeding is an improper vehicle to challenge a legislative action; and (c) pursuant to CPLR 3211 (a) (2) and (3) , petitioner lacks standing to proceed in this action; and Plaintiff-Petitioner having moved by Cross-Motion, dated August 3 , 2000, requesting the court, pursuant to CPLR §§3211 (c) Page 3 of 6 • 400 4 • and 3212, convert the Defendants-Respondents' motion to dismiss into a motion for summary judgment and upon such conversion, granting the Plaintiff-Petitioner the relief sought in the Petition-Complaint; or in the alternative, a judgment, pursuant to CPLR §3211, dismissing each of the affirmative defenses contained in Defendants-Respondents' answer on the ground that the defense therein stated have no merit; and The claims asserted in the Petition-Complaint as against respondents, Town of Southold, Suffolk County, New York, and Supervisor, Jean W. Cochran, as Supervisor of the Town of Southold, Louisa P. Evans, William D. Moore, Brian G. Murphy, John M. Romanelli and Alice Hussie, as members of the Town Board of the Town of Southold, and the motion and cross-motion having thereafter been regularly heard by the Court; and Upon reading and filing the Summons, Notice of Petition and Verified Petition/Complaint, dated April 26, 2000 ; Notice to Motion to Dismiss, dated July 3 , 2000; Affidavit of Kenneth Robinson in Support of Motion to Dismiss dated July 5, 2000; Defendants-Respondents' Verified Answer, dated July 6, 2000; Defendants-Respondents' Amended Notice of Motion to Dismiss dated July 11, 2000; Plaintiff-Petitioner' s Notice of Cross-Motion for Summary Judgment, dated August 3 , 2000; Affidavit of Emanuel M. Page 4 of 6 4 Kontokosta, sworn to the 27th day of July 2000; Plaintiff- Petitioner' s Memorandum of Law in Opposition to Motion To Dismiss and In Support of Motion for Summary Judgment Or In The Alternative To Dismiss Affirmative Defenses, dated August 3 , 2000 ; Defendants- Respondents' Memorandum of Law in Opposition to Petitioner' s Cross- Motion To Convert Respondents' Motion To Dismiss Into A Motion For Summary Judgment, dated August 25, 2000; Defendants-Respondents' Affidavit in Opposition and In Further Support of Notice of Motion to Dismiss by Brian Murphy, sworn to the 25th day of August, 2000; Plaintiff-Petitioner's Reply Memorandum of Law in Further Support of Plaintiff-Petitioner' s Motion for Summary Judgment, dated September 15, 2000; Reply Affirmation of Matthew E. Pachman, dated September 15, 2000; and the matter having been submitted on September 18 , 2000 and due deliberation having been had thereon; and Upon reading and filing the Memorandum Decision, dated November 15, 2000, issued herein, a copy of which is annexed hereto, which was duly entered in the Suffolk County Clerk' s Office . NOW, upon motion of Pachman & Pachman, P.C. , attorneys for Plaintiff-Petitioner, it is , Page 5 of 6 111/ ORDERED, ADJUDGED AND DECREED, that the motion by Plaintiff-Petitioner for a judgment annulling, reversing and setting aside the resolution of Defendants-Respondents, purporting to adopt Local Law 53 of 1999, is granted and said resolution is annulled, reversed and set aside; and it is further ORDERED, ADJUDGED AND DECREED, that the motion by Defendants-Respondents for an order dismissing action is denied; and it is further ORDERED, ADJUDGED, AND DECREED, that the cross-motion by Plaintiff-Petitioner for an order granting summary judgment is granted in all respects. GRANTED ENTER: DEC 4 2000 }IOWA -%i 1b EDWARD P.ROMAINE HON. HOWARD BERLER, J.S .C. CLERK OF SUFFOLK COUNTY F:\DATA\CLIENTS\KONTOKOS\Kace\Pleadings\Judgment Fli D E C I 2oug CLLR Page 6 of 6 0 ' 1 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ss.: COUNTY OF SUFFOLK ) Barbara Burden,being duly sworn, deposes and says: 1. I am not a party to the action. 2. I am over 18 years of age. 3. I reside in Suffolk County, New York. 4. On November 21,2000, I served the foregoing Proposed Order/Judgment upon: Kenneth L. Robinson,Esq. Corletto&Associates,P.C. Attorney for Town of Southold 532 Broadhollow Road, Suite 135A Melville,New York 11747 631-249-3810 by depositing a true copy thereof enclosed in a post-paid wrapper in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State addressed to the following attorneys at the address set forth,being the address designated by said attorneys for that purpose. /6241416 Barbara Burden Sworn to before me this 21st day of November 2000. ALI.LiddiaZ Notary Public ELLEN MULHOLLAN�Ycrk PUBLIC, No.52-4960201,S..ffol1(�om' `9 Commission Expires DeceGii;Cr 18, / R . ' Index No. 10760 Year 2000 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK - KACE LI; LLC, Plaintiff/Petitioner, -against- TOWN OF SOUTHOLD, Suffolk County, New York and Supervisor, Jean W. Cochran, Councilwoman Louisa P. Evans, Councilman William D. Moore, Councilman Brian , G. Murphy, Councilman John M. Romanelli an Councilwoman Alice Hussie, in their official capacity and constituting the Town Board of the Town of Southold, Defendants/Respondents. PROPOSED ORDER/JUDGMENT WITH NOTICE OF SETTLEMENT , y'PACEII�IAN ,'& PACHMAN, P.C. - Attorneys, for Plaintiff/Petitioner - 366 Veterans Memorial Highway • Commackork 11725 ; New Y (631) 43-220U , Service of a copy of the within is hereby admitted •;f,{ ; Dated: Attorney(s) for I, the undersigned, an attorney" admitted to practice in the courts of- New York State, certify that, to the best of 'my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of the within Proposed Order/Judgment, or the 'contentions :• - therein are not frivolous as defined in s - tion (c) of section 130-1.1. Matthe E. Pachman, Esq. SIR: PLEASE TAKE NOTICE NOTICE OF ENTRY: that the within is a (certified) true copy of a * duly entered in the office of the clerk of the within named court on * X NOTICE OF SETTLEMENT: that a Proposed Order/Judgment of which the within is a true copy will be presented for settlement to the HON. HOWARD BERLER, one of the judges of the within court, at Griffing Avenue, Riverhead, New York on December 4, 2000 at 9:30 a.m. • Dated: Commack, NY Yours, etc. , November 21, 2000 PACHMAN & PACHMAN, P.C. TO: KENNETH L. ROBINSON, ESQ. Attorneys for Plaintiff/Petitioner CORLETO & ASSOCIATES, P.C. 366 Veterans Memorial Highway 532 Brookhollow Rd. , Ste. 135A Commack, New York 11725 Melville, NY 11747 01110 Co1ZI_.ETO ` .'1SSOCLATES, P.C. ATTORNEYS & COUNSELORS 5J m ♦IN _. .icc 107 MILL PLA1'1 RDAsD S32 BROADHOLLOW ROAD SUITE 1000 0..3 1011 SUITE 200 WHITE PLAINS, NEW YORK i0`i0•i DANBURY. CONNECTICUT oeSUITE 133A s“-6100 MELVILLE N TELEPHONE 131-x1 75:! 20 O TELEPHONE (2031 790-73a 0EW YORK 117x7 FACSIMILE 191.x1 0 TELEPHONE 16311 29_3 BIO 7�" `5� FACSIMILE 1203. 790-7536 FACSIMILE (6311 2x9-3859 REPLY TO WRITERS DIRECT tel%the Omcc Please Note Our New Area Code(63I) June 14, 2001 Supreme Court of the State of New York Appellate Division - Second Judicial Department 45 Monro; Place Brooklyn, NY 11201 Attn.: Hon. James Edward Pelzer, Clerk RE: KACE LI, LLC v. TOWN OF SOUTHHOLD, ET AL Docket No.2001-00375 Our File No.: KIC 0003NY Dear Mr. Pelzer: In connection with the above-referenced matter, enclosed herewith please find the original WITHDRAWAL OF NOTICE OF MOTION TO EXTEND TIME TO PERFECT APPEAL AND THE NOTICE OF APPEAL, together with the original AFFIDAVIT OF SERVICE of same. Kindly file these documents in the file you maintain in connection with this matter and return the additional copy of this letter, date stamped to acknowledge receipt, to this office in the stamped, self-addressed envelope provided. Thank you. eery Y . 'obinson, Of Counsel KLR:lmr Cc: Matthew Pachman, Esq. Gregory Yakaboski, Esq. C.\mydocuments\workfiles\formletters\clerk letter supreme court—appeals QI C, ) ,p V"V \(\ 6JQ1r"_14 •01 1V1:48PM =�n_1T rI fl T�JWN HALL 51k7, .'b5 1823 77692 902 NEW YORK STATE SUPREME COURT Our File No.: KIC 0003 NY APPELLATE DIVISION: SECOND DEPARMENT Docket No.: 2001-00375 X Index No.: 00-10760 KACE LI, LLC, Petitioner/Rrapondent, ' STIPULATION OF WITHDRAWAL OF -against- MOTION TO EXTEND TIME TO APPEAL AND TOWN OF SOUTHOLD, Suffolk County,New York, NOTICE OF APPEAL and Supervisor JEAN W. COCHRAN, Council ' woman LOUISA P. EVANS, Councilman WILLIAM D. MOORE, Councilman BRIAN 0.MURPHY, Councilman IOHN P.ROMANELLJ, and Council- woman ALICE HUSSIS,in their capacity and constituting the TOWN OF SOUTHOLD, Defendants/Appellants. IT IS HEREBY STIPULATED BY COUNSEL FOR THE DEF,ENDANTS/APPELLANTS THAT: 1. AppeIlant's Notice of Motion to enlarge the time to perfect the appeal, which motion is returnable June 22,2001, before this Court,is hereby withdrawn; and 2. Appellant's Notice of Appeal dated December 27,2000 and Appellant's Amended Notice of Appeal dated January 11, 2001, are hereby withdrawn. ' Dated: Melville,New York June 14, 2001 v �• a..�.. L.�, J. • 71-n I-IVU I H'JL L I VW(1 HNLL �.1 fj yfJ� 1=`' lF''- 92 W.7. eia ; L. �bin on, Esq. if Counsel Corleto&Associates, P.C. Attorneys for Defendant/Appellants 532 Sroadhollow Road, Suite 135A Melville,New York 11747 (631) 249-3810, REGOo0 •OSKI, ESQ. Town Town of Southold 53095 Route 25 Southold,NY 11971-0959 TO: Matthew E.Pachman,Esq. Pullman&Packman,PC 366 Veterans Memorial Highway Commack,NY 11725 it . ' Ci i , § 100-40 ZONING _ § 100-40 ARTICLE 1V , M Light Multiple-Residence District ' § I0040. Use regulations. , In an M District,no building or premises shall be used,and no ( building or part of a building shall be erected or altered which is arranged,intended or designed to be used,in whole or in part,for any use except the following: A. (Amended 540-75 by L.L. No. 3-19751 Permitted uses, subject to site plan approval of the Planning Board in accordance with Article XIII hereof. (1) Any permitted use set forth in, and as regulated by, § 100.30A of this chapter. (2) Multiple dwellings not exceeding one hundred) Any pe. * rmittfive (125) feet in length designed for and occupied by not more than four (4) families. f , (3) Boarding- and tourist houses. . B. Uses permitted by special exception by the Board of ' Appeals. The following uses are permitted as a special , • exception by the Board of Appeals, as hereinafter provided,and subject to site plan approval by the Planning Board in accordance with.Artide XIII hereof: (1) Any special exception use set forth in.and as regulated by, § 100.30B of this chapter. except that the use set • forth in§ I00-30B(16)shall not require site plan approval. i . — (Amended 7-1-86 by I.L No.5-19861 I t C. Accessory uses. (1) Any accessory use set forth in, and as regulated by, § 100-30C of this chapter. (2) Accessory uses on the same lot with and customarily . incidental to any permitted use and not involving a separate business. j )3) Signs. subject to the following requirements: lal I►ne II) adverti.ine sign, elilwr .nnet- or doubler Ct/ (ared. not mom Ihan fifty I.3D)'quark. NIA in arra. ' ® o� 10029 ' ' I �.LI ct0 . ()Z"c°\'' cr 4)e) a°' alp ARTICLE IV Hamlet Density (liD) Residential District [Added 1-10-1989 by L.L. No. 1-19898] § 100-40 * * * * § 100-41 * * * * § 100-42. Use regulations. In the HD District, no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part, for any use except the following: A. Permitted uses. (1) One-family detached dwelling. (2) Two-family dwelling. (3) Continuing care facility and life care community. [Added 11-12-1996 by L.L.No.20-1996] B. Uses permitted by special exception by the Board of Appeals. The following uses are permitted as a special exception by the Board of Appeals, as hereinafter provided, and subject to site plan approval by the Planning Board: (1) Multiple dwellings, townhouses, row or attached houses. ` (2) Accessory apartments in single-family residences as set forth in and regulated by § 100-31B(13) of the Agricultural-Conservation District. 10054.2 2-26-87 ti 613 N.Y.S.2d 264 Page 1 (Cite as: 205 A.D.2d 629, 613 N.Y.S.2d 264) Supreme Court, Appellate Division, Second ordinance. Department, New York. **264 Stephens, Buderwitz & Baroni, White Plains (Joseph M Buderwitz and Roland A. Baroni, Jr., on In the Matter of Mari A. KENNEDY, the brief), for appellant. Respondent, v. Keegan & Spolzino, P.C., Mount Kisco (Robert A. ZONING BOARD OF APPEALS OF TOWN OF Spolzino, on the brief), for respondent. NORTH SALEM, Appellant. Before MANGANO, P J , and BRACKEN, June 13, 1994 PIZZUTO and HART, JJ. Adjoining landowner brought proceeding to review MEMORANDUM BY THE COURT. determination of town's zoning board of appeals, which ruled that order to remedy violations issued by *629 In a proceeding pursuant to CPLR article 78 to town building inspector was of no force and effect. review a determination of the Zoning Board of The Supreme Court, Westchester County, Carey, J., Appeals of the Town of North **265 Salem dated vacated determination, and board appealed. The July 12, 1990, which, after a hearing, granted the Supreme Court, Appellate Division, held that board's appeal of Richard A Romanski and ruled that an determination that owner's use of property constituted undated Order to Remedy Violation issued by *630 lawful nonconforming use under town's zoning the Town Building Inspector with respect to his ordinance had rational basis and was supported by property is of no force or effect, the appeal is from substantial evidence (1) a judgment of the Supreme Court, Westchester County (Carey, J.), dated April 2, 1991, which Judgment reversed; determination confirmed; vacated the determination, and (2) so much of an proceeding dismissed; appeal dismissed in part. order of the same court, entered June 18, 1991, as denied the appellant's motion for reargument and West Headnotes renewal. [1] Appeal and Error 0110 ORDERED that the judgment is reversed, the 30k110 determination is confirmed, and the proceeding is dismissed on the merits; and it is further, No appeal lies from denial of reargument. [1] ORDERED that the appeal from so much of the [2] Zoning and Planning€322 order as denied the branch of the appellant's motion 414k322 which was for reargument is dismissed, as no appeal lies from the denial of reargument; and it is further, Determination of town's zoning board of appeals that owner's use of property, which was improved with ORDERED that the appeal from so much of the two structures that originally served as church and order as denied the branch of the appellant's motion parish house, constituted lawful nonconforming use which was for renewal is dismissed as academic in under town's zoning ordinance had rational basis and light of our determination on the appeal from the was supported by substantial evidence; owner used judgment, and it is further, former parish house as his residence and former church as studio/office/workshop ORDERED that the appellant is awarded one bill of costs. [3] Zoning and Planning C=363 414k363 [2] The Supreme Court improperly vacated the determination by the Zoning Board of Appeals of the When town's building inspector determined that Town of North Salem (hereinafter the Zoning Board), property, and owner's use thereof, fully complied which, inter alia, decided that the use of the subject el.with zoning ordinance, new building inspector could property by the present owner was a lawful ' o l not, ten years later, find that same use violated same nonconforming use under the 1965 Zoning Ordinance Copr. ©West 2001 No Claim to Orig U S Govt. Works �'� ��, 613 N.Y.S.2d 264 Page 2 (Cite as: 205 A.D.2d 629, *630, 613 N.Y.S.2d 264, **265) of the Town of North Salem, and vacated an Order to required under the 1965 Zoning Ordinance. This is Remedy Violation issued to him arising out of his also the position taken by the petitioner on this appeal. failure to obtain a certificate of occupancy However, even assuming that a Certificate of Occupancy was in fact required, "[a] use which is The real property in question, formerly owned by the otherwise lawfully maintained may be continued as a United Methodist Church, is improved with two nonconforming use although the user failed to procure structures, which originally served as a church and or renew a license, certificate, or other permit parish house. The current owner, who purchased the required by law * * * The failure to obtain a license property in 1979, utilizes the parish house as a does not render the use unlawful in the sense intended residence and the former church building as a studio/ by zoning ordinances which preserve existing lawful office/workshop in connection with his interior design uses" (1 Anderson, New York Zoning Law and business. The petitioner is an immediately adjoining Practice § 6.12, at 219-220 [3d ed]; see, Matter of landowner. In 1979, in connection with his purchase Rubin v. Wallace, 63 A.D.2d 763, 404 N Y S.2d of the property, the current owner requested a 733; City of New York v. Victory Van Lines, 69 Certificate of Occupancy from the Town Building A.D.2d 605, 418 N.Y.S.2d 792). Further, since the Inspector. The Town Building Inspector provided Town's Building Inspector determined in 1979 that the owner with a letter stating, in essence, that the the property, and the owner's use thereof, fully property "was pre-existing to any requirement of a complied with the 1965 Zoning Ordinance, the new Certificate of Occupancy". The Building Inspector's Building Inspector could not, 10 years later, find that letter further stated that the parish house was a legal the same use violated the same ordinance (see, residence and the church building was a legal Village Green Condominium Corp. v. Nardecchia, 85 accessory structure and, thus, the property was in A.D.2d 692, **266 693, 445 N.Y.S.2d 494). compliance with the applicable 1965 Zoning Accordingly, we sustain the Zoning Board's Ordinance. In addition, shortly after the owner's determination that the owner's use of the property purchase, the Building Inspector responded to the constituted a lawful nonconforming use under the petitioner's *631 inquiry and concluded that the Town's 1965 Zoning Ordinance, since it had a property owner's use of the church building as an "artist's office/studio" complied with the applicable rational basis and was supported by substantial zoning ordinance. It is uncontroverted that the evidence in the record (see, Matter of Harwood v. present zoning ordinance, adopted in 1987, does not Board of Trustees of Inc. Vil. of Southampton, 176 permit the owner's use of the property. A.D.2d 291, 574 N.Y.S.2d 217). [3] In 1989, after a new Building Inspector took Finally, we find that the additional reasons which the office, the petitioner again registered a complaint and petitioner contends warrant vacating the Zoning this time it was determined that the property owner's Board's resolution are without merit. use was not lawful because he did not have a Certificate of Occupancy, which he decided was END OF DOCUMENT Copr. ©West 2001 No Claim to Orig. U.S Govt. Works 7,_ lea c.e. /L g i� ,, I)1 4 fiki 4C. i6-/e-1. 1 ()xi\\\b‘ w SOUTHOLD TOWN BOARD OF APPEALS 67'° r"1'Q i, TRANSCRIPT OF HEARINGS ,9��e HELD NOVEMBER 15, 2001 / (Prepared by Paula Quintieri, 12/21/01) Present were: Chairman Goehringer Member Dinizio Member Tortora Member Collins (till 9:40 p.m.) Member Horning Paula Quintieri, Secretary PUBLIC HEARINGS: 5:21 p.m. Carryover Hearing in the Matter of Appl. No. 4927 — KACE LI, INC. This is an Appeal requesting Reversal of the Building Inspector's Notice of Disapproval dated August 13, 2001, which disapproval denied an application for a building permit for two- family dwellings under Article IV, Section 100-42A.2. The reason stated in the Notice of Disapproval is that the proposed project indicates several two-family dwellings on a single parcel, and that the Code allows only one such structure per lot as a permitted use. Zone District: Hamlet-Density (HD). Location of Property: South Side of North Road (a/k/a/ C.R. 48) (now or formerly referred to as "Northwind Village" site), 500+- feet east of Chapel Lane, Greenport; Parcel #1000-40-3-1. Matthew Pachman, Esq. CHAIRMAN: Interpretation of the Section of the Code that's mentioned within that August 13, 2001 disapproval. MATTHEW PACHMAN, ESQ.: Yes, we are asking this Board to overturn Mr. Forrester's denial of the Building Permit because we claim that Mr. Forrester improperly interpreted this Section of the Code which is 100-42A.2. I hope that answers your question. CHAIRMAN: It does, but the main problem in one of the discussions that we had was the amount of information that you had given us at the prior hearing, and that was based on a conversation again that I had with your father regarding the movement of this hearing from October to November at which point I understand and I do see opposing council present at this time. As you know, we have appellate jurisdiction and our jurisdiction is based upon the advertising of this particular hearing as it has been advertised. There were times during the prior hearing that you asked me why I was asking you not to delve into other issues, and that's a concern, based upon on the advertising of that hearing and because, at that point, I should have actually stopped you and said it was not germane to that particular topic and that's what I'm concerned about. r Page 2-November 15,2001 6 ZBA Public Hearing Tianscnpt(s) Town of Southold MATTHEW PACHMAN, ESQ.: Well maybe I can clarify this, because we are only asking for the relief that was sought in that public notice. I believe I have to review it to be very specific, but the information that I gave in part during the September 20th hearing was as a background so that the Board could understand how we go here today and put that interpretation in context. I believe that it's important background information for the Board to have in order to put it in proper context. Mr. Chairman, I agree with you 100% that this Board, of course, only has appellate jurisdiction except with respect to limited circumstances of special permit with CHAIRMAN: Of original_ MATTHEW PACHMAN, ESQ.: Mr. Chairman, I agree with you and share your concern about that and that's something that I did want to mention, because Mr. Chairman obviously the only reason for Mr. Forrester's denial of the Building Permit was as stated in that denial and as restated by Mr. Forrester on September 20th was that under that section 100.42A.2, the permitted uses reads, two-family dwelling and not two-family dwellings. Because based upon Mr. Forrester's determination, as he eluded to, as he stated on September 20th. If it had said two-family dwellings he would have issued the Building Permit. CHAIRMAN: Mr. Pachman, let me just stop you one second,.all these nice people are here as they were a portion of them, at that hearing and they are talking about issues that are not germane, at this point, to this case. We are only arguing that particular issue. MATTHEW PACHMAN, ESQ.: 100%Mr. Chairman, that's absolutely true. CHAIRMAN: So I just want them to be aware of this issue so that, and of course we always allow people to speak and we will continue that premise forever without a specific time limit. But it is very important to concentrate specifically on that particular issue. TOWN ATTORNEY GREG YAKABOSKI: So really this, a threshold question whether or not on a lot, this lot is over ten acres, seventeen I believe, whether or not more than one structure which is a two-family dwelling will allow permitted by a set we're all on the same place on that correct? MATTHEW PACKHMAN, ESQ.: Absolutely. TOWN ATTORNEY GREG YAKABOSKI: On 100-42A.2 which is two-family dwelling, the lot in question is approximately seventeen acres, correct? MATTHEW PACHMAN, ESQ.: It is, it's just over seventeen acres. TOWN ATTORNEY GREG YAKABOSKI: The determination from the Building Department is that there is, under this particular Section of the Code, there would be one, on that seventeen-acre lot. Mr. Forrester's position was that there would be one structure, I I Page 3-Novembei 15,2001 ZBA Public Healing Tiansciipt(s) Town of Southold which is a two-family dwelling permitted; and I believe that what had been applied for was to put many, more than one structure, several structures on that single lot which were two-family dwellings. MATTHEW PACHMAN, ESQ.: Yes that is correct. I'm just checking, one section of the Code Mr. Yakaboski. I'm just hesitating because if the word's lot or parcel. One each lot, that's lot. TOWN ATTORNEY GREG YAKABOSKI: Okay, and the second question that I have I believe are in the record. I'm not sure if you have a copy of the transcript, you can have my copy, it's on page seven there's a comment, let me read it. It says, "Well, Mr. Chairman you mentioned something that I really don't know, don't understand it. Because the very essence of our application here is that, as a matter of law, the Building Inspector could not deny this Building Permit because of the approved site plan." I will copy that; sorry I didn't have an extra copy. MATTHEW PACHMAN, ESQ.: Mr. Yakaboski, I don't want to comment on one particular line I made out of context. If you want to give me an opportunity to read the transcript and then put it in context, I certainly have no problem in. TOWN ATTORNEY GREG YAKABOSKI: Fair enough, I was just requesting if that is your legal position just provide, perhaps in writing that your legal position is such. MATTHEW PACHMAN, ESQ.: Sure. Let me just re-state one more time Mr. Yakaboski and Mr. Chairman and the Members of the Board, the specific question before this Board was Mr. Forrester's decision to deny the Building Permit application because as he said the permitted uses under that Section reads, "two-family dwelling and not "two-family dwellings". That's the limited and only issue before this Board. Was that decision by Mr. Forrester based on his Interpretation of that Code, was that correct? Or was that not correct? MEMBER TORTORA: It is my understanding what you described tonight is what happened. My understanding of is what this application is. Just let me finish Jerry, as far as the discussion of site plan, whether it is listed, that's not relevant to this before this Board, we won't pick it up, nor will we accept it. MATTHEW PACHMAN, ESQ.: I will certainly agree with that. MEMBER TORTORA: So I think we're all on the same wavelength. CHAIRMAN: I can read the legal notice again, as it was published in the newspaper. This is an Appeal requesting Reversal of Building Inspector's Notice of Disapproval dated August 13, 2001 which disapproved, denied an Application for a Building Permit for two-family dwellings under Article IV, Section 100-42A.2. This reason was stated in the Notice of Disapproval is that the proposed project indicates several two-family Page 4-November 15,2001 ZBA Public Heating Transcript(s) Town of Southold dwellings on a single parcel and that the Code allows only one such structure per lot as a permitted use. MATTHEW PACHMAN, ESQ.: Yes, Mr. Chairman and Mr. Yakaboski that's the word I was looking for lot or parcel. They may be interchangeable, with respect to this instance, but that's what I was looking for. CHAIRMAN: Please excuse my reading, it was about that big. MATTHEW PACHMAN, ESQ.: Okay, well that's, yes then I believe we're all on the same page. That is what we are requesting as stated in the Public Notice. Now, Mr. Chairman if I may just briefly go on. CHAIRMAN: Yes, we just wanted to clear that issue up, because there was some discussion by some neighbors concerning what we were dealing with in this application. So that is a concern of ours, because we want to be as legal as we can possibly be in this issue. We're ready for you. MATTHEW PACHMAN, ESQ.: Jerry, thank you. Well, having gone over that very important procedural point because I was going to raise that even if the Board had not raised it initially about the fact that we had a narrow and focused issue and that's the only issue before the Board and that's the only issue that the Board should be concerning itself with. I would just also note that, and it's just a very quick recap the discussion that we had on September 20th that being almost two months ago, that I believe it was, one Member of the Board, I believe was Ms. Tortora who very properly asked Mr. Forrester one of the crucial questions here which is to say that in the other residential districts permitted uses in the other residential districts as defined by the Code as adopted by the Board of Trustees it says permitted uses one-family detached dwellings not to exceed one dwelling each lot. Now there is no such similar qualifying language in the section that we are dealing with. Which is 1 00.42A.2, and it is clear. And that,by the way, applies to the AC, R80, R120, R200, and R400 Zoning Districts. They all have that qualifying language. It is a simple and standard maxim of statutory construction for a Code such as this; that where the Board of Trustees imposes living and language on other sections of the Code. TOWN ATTORNEY GREG YAKABOSKI: Mr. Pachman, if I may interrupt. Do you mean the Town Board or the Zoning Board. MATTHEW PACHMAN: The Town Board. The Town Board the Zoning Code. TOWN ATTORNEY GREG YAKABOSKI: The Board of Trustees is a different board here. MATTHEW PACHMAN ESQ.: My apologies, the Town Board. i f Page 5-Novembei 15,2001 ZBA Public Hearing Tianscnpt(s) Town of Southold CHAIRMAN: Mr. Pachman, we have to ask you to use the mike here, we're not picking you up. MATTHEW PACHMAN, ESQ.: Adopted on the Town Board, adopted the Code. They adopted that living and language with respect to all of the other residentially zoned districts, and not with respect to this district. When this Board reviews that Code, it has to take that into account. It has to realize that when the Town Board, when the legislative body adopts the Code and imposes living language on all the other residentially zones districts but not here, it wasn't intended not to apply it here; and you have to read the Code as a whole and you have to give to each of the words and not only that. But if you look at Section 113.A one of the beginning sections of this Code, it says under the heading word usage, words used the singular number includes the plural in the plural it . In other words, the Code is clear and unambiguous that in Section 142A.1 there is no distinction between using the word two-family dwelling and two-family dwellings. Mr. Forrester denied the Building Permit on that one sole reason and it was a reason which simply has no support within the Code. Now this meeting was adjourned for a period of time because Mr. Young requested time to hire counsel, and obviously he has engaged Mr. Tohill. I did have an opportunity to call Mr. Tohill yesterday and asked him as a preview he might be in a position to tell me the nature of his presentation today, so I might have an opportunity to prepare and Mr. Tohill very properly said that he had not yet finalized that and had not had a final opportunity to speak to his clients and so was not in a position to have that discussion with me. The reason I'm saying that is because we left off so Mr. Tohill could make an accepted presentation and I am going to sit down now and give him his opportunity to speak, and after that, we'll have to see where we are because since I may be hearing this the very first time just as everybody on the Board, I may be constrained to ask for additional times to consider that and to come back another day and give further presentation or I may not. CHAIRMAN: The Board may reserve the right to bring in Mr. Verity anyway. TOWN ATTORNEY GREG YAKABOSKI: Mr. Pachman, in keeping with your argument just laid out, would it also be your position that if the person owned a ten acre lot in a Hamlet Density District under 100-42A.1 which means the use of permitted use is a one-family detached dwellings, on that ten acre lot they could put more than one or several one-family detached dwellings? MATTHEW PACHMAN, ESQ.: In the original district? TOWN ATTORNEY GREG YAKABOSKI: Same exact district. Just instead of 100- 42A.2, which we were talking about, 100-42A.1, which simply means one-family detached dwelling, a single family home. MATTHEW PACHMAN, ESQ.: That may be so, I'm not going to, that may very well be so, there may be a provision in the Code that may allow that. I also want to point out, I'm just reading the Code as adopted. I didn't, obviously I don't mean to you about it, we're not involved in the adoption of that Code. I just want to point out one other thing that Page 6-November 15,2001 ZBA Public Healing Transcnpt(s) Town of Southold this is not a novel argument with respect to this property, because as we discussed last time, the light multi-family district that was in place in 1983, I believe, when this site plan was first adopted had the identical percatory . The applicant at that time was not required to go and apply for a subdivision. It was granted as a matter of right, the ability to build the structure pursuant to the density calculations in the Code for that district at that time. In the 1983 M1 Zoning portion of the Code is before the Board because I did put in a copy at the last meeting. CHAIRMAN: If we accept it or not. MATTHEW PACHMAN, ESQ.: If you accept? CHAIRMAN: All of the information you gave us. MATTHEW PACHMAN, ESQ.: Well, it was presented to you and you have a copy of it and I certainly think that's important for understanding that, that was the Interpretation of the Code at that time and remains the same Interpretation today in our opinion. CHAIRMAN: I just think there was some confusion Mr. Pachman, and we understand that you have to create an entire record in reference to this, but it was somewhat baffling to us and again that goes back to my discussion with your father sometime after that. MATTHEW PACHMAN, ESQ.: We hope that after, certainly, last time's hearing and this cliquey today that there's no confusion about what the application is about or what we're seeking. Thank you. CHAIRMAN: Mr. Tohill, how are you tonight sir? I haven't seen you in a little while. ANTHONY TOHILL, ESQ.: Thank you. Good evening Mr. Chairman and Members of the Board. My name is Anthony Tohill. I am the attorney for many of the neighbors. By the way, on behalf of Mr. Pachman, his client, all of my clients, myself thank the Board for meeting with us earlier than usual. I understand this to be extraordinary and it bespeaks the interest and sincerity of the Board, I think, in trying to address this. I am prepared this evening to address, what I understand to be the issue. I understand the issues on the basis of my reading and my analysis that the Minutes of September 20th, as well as the entire Zoning Board file, as well as the Planning Department's file that relates to the property. I'm here this evening with my client, they include the following families: Berardinos, the Campbells, the Foleys, the Grzesikds, the Mannixs, the Pheffers, the Retzos, Sterns, Suprenant, Young and Walsh. I plan to make an oral presentation, I plan during the oral presentation to hand up some exhibits, not too many and then I plan to hand up memorandum with an appendix, exhibits that go from the letter A to the letter Z, the entire alphabet and then some authorities so that you are able to understand the intent that needs to be understood. I do plan to address not just the question of what the absence of plurality or the presence of plurality might mean in sub-section A or sub- section B of 100-42. In addition to that I do plan to address whether or not any result of any decision by this Board would permit Mike Verity to issue a Building Permit for a -} Page 7-Novembei 15,2001 ZBA Public 1-Ieanng Tianscnpt(s) Town of Southold two-family home on this property. So I didn't entirely follow the colloquy, I think I did, earlier between each of you and Mr. Pachman, but I do intend to address and I do intend to talk about whether or not there is a site plan on that property. Whether or not there are vested rights with respect to any aspect of that site plan. CHAIRMAN: I don't think we're going to accept that. ANTHONY TOHILL, ESQ.: Okay, what I have to do is make a record and then when we get to another level, one of us will be right and one of us will be wrong. In other words when Ed Forrester wrote that there were two reasons for disallowing, one of them, no site plan approval, and the other, that there's not more than one two-family allowed. What you're saying is that you on the one hand and the applicant on the other can pick now which of those reasons for denial one with appeal ignoring the other reasons for denial. MEMBER TORTORA: Mr. Tohill, I'll cut right to the chase. What happened originally, there were a lot of amended Notices of Disapproval on this. ANTHONY TOHILL, ESQ.: I read and verified and I made them assemble. MEMBER TORTORA: Exactly, so what happened was, and frankly I couldn't even tell you how many there were. There were a number. ANTHONY TOHILL, ESQ.: There were four Building Permit Applications pending right now, and those four Building Permit Applications are before you right now. MEMBER TORTORA: No they're not. That I'll correct you on. ANTHONY TOHILL, ESQ.: Okay, so is it my understanding that any determination here does not permit the Building Inspector any determination one way or the other, does not permit the Building Inspector to issue a Building Permit? MEMBER TORTORA: Absolutely. In other words ANTHONY TOHILL, ESQ.: The whole Board agrees with that statement? MEMBER TORTORA: Here's what's happening here. There is no site plan subject before this Board. Whether he has or he hasn't, that is not before this Board. That will not be determined by this Board. This Board will not consider it. ANTHONY TOHILL, ESQ.: On the night of September 20th on pages 7 and 12 of the Transcript of September 20th, page 12 Mr. Pachman said this is the exact same site plan. On page 7,he said nothing had changed. MEMBER TORTORA: But we will not be making any determination regarding site plan. Page 8-Novembei 15,2001 ZBA Public Hearing Tianscnpt(s) Town of Southold ANTHONY TOHILL, ESQ.: I didn't ask you to make a determination. MEMBER TORTORA: The applications that were before this Board prior to the one that was legally noticed, have been withdrawn. ANTHONY TOHILL, ESQ.: You have a letter from Benny Orlowski dated September 20th, which is part of the record, which said there is no valid site plan, there is no Special Exception approval for a two-family home, there is no ability to build anything at the present time. Are you planning to address what the Planning Board said to you on your referral to the Planning Board? MEMBER TORTORA: We cannot address, our jurisdiction is appellate only you know this. ANTHONY TOHILL, ESQ.: Of course I do. MEMBER TORTORA: And you know what this hearing was advertised for. This hearing was advertised based on 100-42A. It wasn't based on site plan approval, it wasn't based on a Special Exception. Those things may come down the road, I'm not saying they won't. But the bottom line is whatever we decide, it's not going to have to do with the Special Exception, it's not going to have to do with site plan approval, we are legally bound to address only that which we have appellate jurisdiction before us, and the only thing we have appellate jurisdiction before us right now is this Notice of Disapproval. TOWN ATTORNEY GREG YAKABOSKI: As to the ramifications and the decisions by the Zoning Board on which referred, the Building Inspector's to issue ANTHONY TOHILL, ESQ.: I'm sorry, say that over again. TOWN ATTORNEY GREG YAKABOSKI: INAUDIBLE. ANTHONY TOHILL, ESQ.: You're coming across blurry. TOWN ATTORNEY GREG YAKABOSKI: Whether or not the decision of this Board is going to let Mr. Verity or one of the Building Inspectors issue a Building Permit is not for this Board to decide. I wanted to clarify. ANTHONY TOHILL, ESQ.: No, no hold on. What Ms. Tortora said is that the result of any determination in favor of the applicant or against the applicant will not affect an affirmative declarative statement will not permit to issue a Building Permit. MEMBER TORTORA: In other words, our action tonight is limited, we do not know what the Building Department does, correct? Page 9-Novembei 15,2001 ZBA Public Hearing Tianscript(s) Town of Southold TOWN ATTORNEY GREG YAKABOSKI: Let me state a couple of points. One, as you know, the Board speaks through Resolution. That's number one. Number two, as to the modifications of a decision by this Board, I respectfully refer you to the Town Code, Town Law as to what that would mean. ANTHONY TOHILL, ESQ.: What is the status of the July 30 denial? TOWN ATTORNEY GREG YAKABOSKI: Now you're on a key point ANTHONY TOHILL, ESQ.: What is the status of it, it has two points to it. One of them has not been appealed? TOWN ATTORNEY GREG YAKABOSKI: My understanding of that one, that's the one I believe referenced the site plan label. My understanding, that is no longer before this Board. ANTHONY TOHILL, ESQ.: What is the status of that document that's on file in the Building Department? TOWN ATTORNEY GREG YAKABOSKI: The Notice of Disapproval? I believe that currently stands. ANTHONY TOHILL, ESQ.: That document dated July 30th, and this is November 15th, stands on file with the Building Department? TOWN ATTORNEY GREG YAKABOSKI: Then what happened, there was an amendment to that Building Permit. And I believe the amendment, I believe the date was August 13th which referenced the 100-42A.2 as to whether or not Mr. Forrester was correct in his determination and I am locked in the HD district on that particular section I decided more than one structure, which is a two family dwelling structure, was permitted. I believe that the determination of the Building Department which is on appeal. CHAIRMAN: Let me just say this to you Mr. Tohill, if there is an additional new dated, new, more forward than a normal, this is a generic statement across the board, that further states, limits, whatever the case might be, we go by the most current one. The most current one that we are dealing with is the August 13th Notice of Disapproval and only that disapproval. So to answer your question in my particular limited knowledge of the law, but some knowledge of being here for twenty almost twenty-one years, I am telling you right now it's mute. It's mute in my opinion. TOWN ATTORNEY GREG YAKABOSKI: I believe what you're asking, correct me if I'm wrong, is the status whether it was amended, whether it still stands whether there's another appeal of the July Notice of Disapproval which mentioned the site plan, is that a fair summation? MATTHEW PACHMAN, ESQ.: Yes, sure. Page 10-November 15,2001 ZBA Public Hearing Tianscupt(s) Town of Southold TOWN ATTORNEY GREG YAKROSKI: As to that question., I think it bears to the public, the public knows that question, and the legal ramification of that, whether it was appealed or not anything like that, that is not before this Board. What is currently before this Board, is a Notice of Disapproval, an amended Notice of Disapproval dated August 13, which which is the language we talked about tonight. That, again in fairness to the public and the community at large, that was what was published, I think that's why a lot of folks , I understand there are other issues in this case. ANTHONY TOHILL, ESQ.: There are not other issues, they're worried because there may be 108 units built across the street. They don't want that to happen. TOWN ATTORNEY GREG YAKABOSKI: I believe in a(ontinuum) ANTHONY TOHILL, ESQ.: They want an analysis of whether or not their fears are legitimate, and you're saying let's not deal with anything that you're here to talk about. Let's instead deal with this theological obscurity. Is there an S missing in one-family dwelling, two-family dwelling, but supplied in multiple dwellings in the same page of print on that page of Chapter 100 of the Town Code. Is there an S missing? And the next question is, can somebody here will the S into those missing words so that on any lot that's HD you can have any number of single-family dwellings, any number, and you can have a number of two family dwellings. But if you want to put multiple dwellings, no not there you have to have one per 10,000 square feet, one per 20,000 square feet depending upon the public water, public sewer connections; but one-family dwelling, any number, two-family dwelling any number, that's what we're here to discuss tonight. That doesn't make any sense if, two months ago, three months ago, the Building Inspector, Ed Forrester said wait a second you're asking me for four Building Permits on property that doesn't even have a valid site plan approval. Are we here to hear what Ben Orlowski, the Planning Board Chairman said on September 20th There is no site plan approval. Why are we here? Is this truly a theological experience? Are we talking counting angels on the head of a pin? This has no connection, then you're saying to me and to my clients, who are by the way are tax paying neighbors, you're saying we're going to debate tonight whether or not there's an S missing at the end of two nouns, supplied below less than an inch below at the end of another noun, always the word dwelling; one-family dwelling, two-family dwellings, multiple dwellings, we're going to debate back, but we're not going to debate the fact that we can't build anything on that property, on those seventeen acres. You can't build 108 of anything, you can't build one of anything, because the one you're trying to build or as you kept saying over and over again on September 20th, how many of these are you trying to build? Nobody, by the way, knows that right now. The answer is, we'll build as many as we need to build, however, there's nothing in the code that will say that. So that when Mike Verity issues the four Building Permits there's a limit on the four, as a result of what you've written . TOWN ATTORNEY GREG YAKABOSKI: I respectfully disagree with the majority of what you just said. The question, Page 11 -November 15,2001 ZBA Public Hearing Transcript(s) Town of Southold ATHONY TOHILL, ESQ.: There's no special permit, how do you get an approval for a two-family residence in the Town of Southold in any district without a special permit. This is 2001. TOWN ATTORNEY GREG YAKABOSKI: Mr. Tohill , you are making points right now which go to the argument tonight. The argument tonight is whether the Code, the Interpretation of the Code, the Code said whether or not as you just pointed out, in a lot be it two acres or one hundred acres and you build more than one structure which is a two-family dwelling on a lot. The last two points you made are an argument as to why the Code should not be interpreted that way. As to the other concerns about whether or not there is site plan approval on this lot, I understand your concerns on that point. At the moment before this Board, that question is not before this Board. ANTHONY TOHILL, ESQ.: Why are we here? TOWN ATTORNEY GREG YAKAOSKI: We are here, I'm surprised you asked that question, but I'll answer it. ANTHONY TOHILL, ESQ.: I'm surprised I'm doing what I'm doing right now. I've read the record, I've read every inch of the record. None of what we're debating right now, appears in that record. TOWN ATTORNEY GREG YAKBOSKI: Perhaps if you bear with me just for a moment. We agree, I believe, that on August 13, 2001 there's something that's called an Amended Notice of Disapproval issued by Ed Forester which reads at the end of it, proposed project indicates several, amount unknown, two-family dwellings on a single parcel. The Code allows only one such structure per lot as a permitted use. We agree on that point, correct. ANTHONY TOHILL, ESQ.: I don't know where you're going with, but I do know that if the prior one is not appealed and there is no appeal pending because of what you've already placed on the record. I have no idea why any of us are spending all this time. There's no sense to it. Does everybody understand? CHAIRMAN: I understand that Mr. Tohill, I understand that. I understand what you are saying okay. However ANTHONY TOHILL, ESQ.: There has to be an explanation for my clients as to why the Board will not hear any testimony with respect to the status that. MEMBER DINIZIO: As I see this disapproval, Mr. Tohill, and it's very hard that you can't understand it. We are being asked whether or not the Building Inspector's decision if we agree whether or not the Building Inspector gave, upon a decision, on August 13th, 2001. Now, all the decision that we have to make is whether or not this Disapproval, we Page 12-Novembei 15,2001 4 ZBA Public Hearing Transcript(s) Town of Southold agree with the Disapproval or we don't agree with this Disapproval. It has nothing to do with site plan. And we're going to send it back to him, if we approve it or we're going to send it back to him if we disapprove it. He agreed that that they're going to have to come back, if they chose to. Ask him to make another decision. He's going to have to base his decision on something other what he made this decision on right now. That's what we're clear on. It doesn't have anything to do with traffic, it doesn't have anything to do with site plans. ANTHONY TOHILL, ESQ.: Can I explain to you? MEMBER DINIZIO: No you can't. I'm saying this is the only thing that I'm going to make a decision on and I believe the rest of the Board is going to make a decision on. The rest of it is sulfurous. I honestly am getting a little tired of hearing it. Let's get directly to the point. Let's address this one. We don't need to address what Orlowski said. We don't need to address any of that. Just this one piece of paper please. CHAIRMAN: Miss Collins? MEMBER COLLINS: We had an appeal from a denial dated last July, and that denial said there were two reasons why they couldn't have a Building Permit. One, you can't have multiple dwellings in that zone, as it's zoned now; and the other was there's no site plan approval. After considerable to-ing and fro-ing, which I'm not going to try to recall at this point, that appeal by case of that Notice of Disapproval was withdrawn. We had a letter written by our Chairman and Mr. Pachman in August saying we understand you're withdrawing that appeal, you're not pursuing that appeal; meanwhile Kace had decided to drop the multiple dwelling angle of the problem and say we're going to build two-family structures which are a permitted use. And went to the Building Department and said, we have a new Building Permit Application, and we're going to build two-family structures which we found were a permitted use in the zone. The Building Department said the issue we now have before us, you can only build one on a parcel or a lot, you can't build a bunch of them. That's what's before us and the site plan issue went away. That's why at our hearing in September we were quite exercised at the hours that were being taken up in reviewing this history. But, as the Chairman says, we listened, and we listened, but that history doesn't go to what's before us. And if you want to call that a theological argument, angels dancing on the head of a pin, perhaps so; but that's what we're here to hear. We're here to hear what does this Code mean that's singular versus plural and that's it. I thought everyone agreed on that tonight. ANTHONY TOHILL, ESQ: Nothing in the record, what you're saying now, the record has you in particular on September 20th finally getting to the nub. I don't believe I'm going to credit anybody else with having done that on September 20th. You said, you mean Mr. Pachman, that a prior letter and you were referencing Victor Lessard's letter is binding on us, and finally somebody was getting to the heart and soul of this matter. And that was you. Page 13-Novembe, 15,2001 ZBA Public Hearing Tianscript(s) Town of Southold MEMBER COLLINS: And I said it struck me as a big reach. And they don't seem to be reaching at it tonight, thank heaven. ANTHONY TOHILL, ESQ.: Then something happened between September 20th and now that's not reflected in the Zoning Board's file and it's first articulated in the dialogue that occurred starting at 5:15 here this evening. I have a right to express surprise at that, because I'm not new to this business and I have a right to agreeing with Mr. Dinizio on some of his observations of what might be taking place here. Let's just back up if we can for a second. If you were to grant an Interpretation that more than one was allowed, it will result in an issuance of a Building Permit for obviously more than one. The question that is, how do you do that. How did you ignore what the Town Board grants in 1989, when it says no single family residences ever, I'm sorry no two-family residences except with a Special Exception Permit from the Zoning Board of Appeals. This is 2001, the Code that went into effect on Januaryl0, 1989, became effective on January 10, 1989. This is pro liter and somehow or another you're suggesting to me that either the Building Inspector can ignore that or he can't ignore that. And I need to steer the rein with you whether he can ignore that. And we do have to talk about that. Because obviously if Mike Verity wasn't here in 1989 and he wasn't, and he wasn't here in 1983, and he wasn't; and he wasn't here on other dates that might be critical to anybody understanding what the value of that property is, and the develop ability of that property is, then it might be helpful for us to talk to each other. Some of us have looked into to us, neighbors, counsel it would always be helpful. Because if we're wasting our time debating whether one or more two family residences is allowed and none, in fact, is allowed, not one. Wouldn't that be worthwhile to have the applicant stand up and say I do understand, (A) - I have no site plan approval for the property. (B), I have no Special Exception for the two family residence approval for the two-family residence, not even for one. I gave an application by the way before but I don't have an approval for Special Exception for even one. I don't understand, and I've been at this a long time, I don't understand how you're managing to duck that inquiry. Isn't it fundamental, isn't it required and don't you have to deal with the fact that when this goes to court after Mike Verity issues a Building Permit, the judge is going to say, what in the world is going on out there? The Building Inspector and the Planning Board Chairman both say there is no site plan approval and they need Special Exception. The Zoning Board listens altogether to any inquiry on either of those, prohibits the neighbors from talking about it, and then issues an approval for more than one two-family, because it rules the nest into 100-42A.2,just rules it in there as if it were there. Mr. Chairman you pre-supposed a decision of the Board. I believe that you're argument is, is that under one of 100-42A.2 that there should only be one structure per lot that transfigures. I'd say that's one, not to seem hypothetically argumental, that that's a result can happen here. Another result is that you could say you're only allowed one two- family residence. Yet, do you do that and there's only one two-family residence, what does one say to the neighbors who are a lot smarter than that. They know there's a problem with the site plan. They know what happened in 1989. They know what happened in 1985. They know about Mr. Orlowski's letter. They know about Ed Forrester's prior letter. What does one do for them? Does one move them away the way the S got moved into two-family dwellings? Page 14-Novembei 15,2001 ZBA Public Hearing Transcript(s) Town of Southold MEMBER COLLINS: Mr. Tohill is intentionally overlooking the point here. That is that site plan, excuse me not site plan, that Special Exception is not required for a two family dwelling in HD district. It's not required. It's a permitted use. So let's let that go aside. ANTHONY TOHILL, ESQ.: In my book, it says uses permitted by Special Exception of the Zoning Board of Appeal, multiple dwelling. MEMBER COLLINS: Town Houses, tow or attached houses, go up to A, we're talking permitted uses. They're talking permitted uses. The Building Inspector's talking peiniitted uses; two-family dwelling. ANTHONY TOHILL, ESQ.: Four applications, four applications. MEMBER COLLINS: There's four Building Permit Applications in the file, each for a two-family dwelling. ANTHONY TOHILL, ESQ.: If there were 108 applications in the file for, let's split it in half because they're two-family and say 54 two-family, 108. Does anybody here standing saying that 54 two-family dwellings is not multiple dwellings that were a subject of? TOWN ATTORNEY GREG YAKABOSKI: This is a hearing, not a question and answer session. ANTHONY TOHILL, ESQ.: This is very important dialogue. TOWN ATTORNEY GREG YAKABOSKI: This is a hearing and Member Collins has a valid point. The question is, "Is more than one structure, say a two-family dwelling, permitted on a lot" and the lot in question 17 acres, under, pursuant to 100-42A-2, and under that section. That's the question. And I believe your argument and the neighbors' argument, is that under that Section, if the owner of the property came forward and said "I would like to tomorrow for a one-family dwelling put an application in tomorrow. On that seventeen acre lot, I would to build a one two-family dwelling on that lot and there not be an opposition. If, much later, after having built that one structure which is a two- family dwelling the applicant, no sub-divisions involved, then came forward and said I would like to put a second structure on that lot, which is a two-family dwelling then, the folks here tonight disagree with that. The Building Inspector, Mr. Forrester at the time, has said that that would not be permitted. Mr. Pachman, correct me if I'm wrong has said "we believe the Code reads that we could build more than one structure which is two- family dwelling on that lot." I believe, you and your clients disagree with that Interpretation. The Board is here tonight and I believe your clients Mr. Tohill agree with the Building Department's Interpretation that only one structure, a two-family dwelling could be placed on that lot under the Code Section 100-42A.2. If you would like to make an argument as to why only one structure, which is a two-family dwelling, I believe that's the question before the Board tonight and I believe it's the only comment from the Board as they will take all testimony as to why that section should be interpreted either as Page 15-November 15,2001 ZBA Public Healing Tianscnpt(s) Town of Southold having more than one structure per lot which is a two-family building or only one structure. I believe that was the only limiting comment made. MEMBER COLLINS: Mr. Chairman, could I just put in a few more cents to continue my line of responding. Mr. Tohill's making a record and I simply wanted one member of the Board to get in the record in response to what he's saying. I've already made my point that I think indeed the Building Department believes that a parcel on which let's assume it were legal, on which he built five two-family houses on ten acres or whatever. That does not multiple dwellings make. Multiple dwellings we all understand to be condos. CHAIRMAN: Townhouses. MEMBER COLLINS: Townhouses. I draw the distinction between a permitted use, two-family dwelling and a use requirement, Special Exception, multiple dwelling. The Building Department has not said that we needed a Special Exception for what these folks don't need to build. And my theory has been that if we agreed with the apeallants who said we are permitted to build more than one two-family dwelling on this parcel, then go back to the Building Department and say okay, please let us have our Building Permit. My assumption has been that the Building Department will then read Section 253 of the Code, which says no Building Permit shall be issued for any structure in Town except a one-family dwelling, I think I've got the right Section, without site plan approval. This has not gone away, they simply didn't put it in that denial. We're not vaporizing it, end of my response. MEMBER DINIZIO: I agree, I think Mr. Yakaboski put it very clearly as to how narrow the scope of this hearing should be. I ask you please not to cloud that issue, so I can make a decision. Because we have to write a decision that's going to stand up probably to a court of law. ANTHONY TOHILL, ESQ.: That's the hardest thing you've said all night. MEMBER DINIZIO: I would just want to add, if you could just kindly do us that favor. ANTHONY TOHILL, ESQ.: This is so different from your file and from the record that was established on the 20th. By the way, I wasn't here. You people were speaking and I was reading and I'm parsing out your word carefully saying, uh huh, that person really understood what was going on there. You've changed everything dramatically. That's alright, you have the freedom to do that. I'm going to ask-- MEMBER TORTORA: I'm going to interrupt you right here, on page 15 of the transcript, "Matt Pachman: Maybe we're in semantics. And I don't mean it in any way. We're asking for a reversal of Mr. Forrester's determination based on 'the Board's interpretation of that section of the Code. That's from the hearing transcript. It's the last page. On page 14. - Page 16-November 15,2001 . ZBA Public Healing Transci tpt(s) Town of Southold ANTHONY TOHILL, ESQ.: Here's your transcript itself, the last page is number 12. You've got different from me. Hold on a second. Let's, that's on page 12 the transcript that's in. MEMBER TORTORA: It might have been a draft. And the page before that it just says, " we're asking you to review Mr. Forrester's Interpretation of the Code and to make a / determination." It's-gtrite"in the hearing. Yes we went around in circles to try to get that out but at the beginning of this we wanted to repeat what was said. MEMBER COLLINS: This is the eoliqueybetween Lydia, Mr. Pachman and me. I said I had heard something at the beginning of the hearing and Lydia said that aren't you asking such and such and he said, he's asking what we all agreed they're asking tonight and this other stuff is not ANTHONY TOHILL, ESQ.: I had prepared for a different system and I can't present to this here. I will need time to come back with a witness because I did not bring a witness and I have no idea this was going to be the focus tonight and clearly if the Board's going do something it's going to tick me off. I didn't get anything at all. So I would like an opportunity to come back with all these nice neighbors, taxpayers back here, and we will have our on the missing text. And I'm happy to do that, but I am going to make a record that is typed in to make sure that we have the original. CHAIRMAN: What we'll do after Mr. Pachrnan's presentation, we'll break for one second and discuss with counsel and with our secretary here what specific dates we have available. Mr. Pachman, we have just spent some half hour discussing this and I don't know how you feel about reserving another date concerning this hearing; why don't you give us some testimony in that respect. MATTHEW PACHMAN, ESQ.: Well, Mr. Chairman certainly if this Board is going to give Mr. Tohill an opportunity to present his case then remarks that I said earlier which is to say, we made a presentation, if Mr. Tohill is in fact is going to make a presentation and bring in a witness as he just mentioned then certainly I'm not going to go any further tonight, but we'll stand on what I said before which I stand by the disapproval and decide at that time. CHAIRMAN: What we are going to do again, is take a recess after this prior to closing the hearing, after recessing the hearing, because we must go back into the office and find out what we have available. That's where we are. TOWN ATTORNEY GREG YAKABOSKI: Mr. Pachman,just to repeat my request of earlier, on page 7 of the transcript the fourth or fifth paragraph, Mr. Pachman, ANTHONY TOHILL, ESQ.: Apparently it might be a different typed issue. CHAIRMAN: No what we have is r Page 17-November 15,2001 ZBA Public Hearing Tianscnpt(s) Town of Southold MEMBER TORTORA: One is a draft, the final Matt is page 15. The draft. TOWN ATTORNEY GREG YAKABOSKI: Mr. Pachman, after the recess I could specifically make sure we're on the same transcript here. CHAIRMAN: So we will take a five minute recess at this point, and then we will finish this, we will give you a date and then we will start the hearings. CHAIRMAN: Motion to reconvene. Mr. Pachman, we're ready is there anything else that you would like to say? MATTHEW PACHMAN, ESQ.: Not at this time, Mr. Chairman. As I said before I would like to reserve any further comments to Mr. Tohill's presentation. CHAIRMAN: Let me just give you some quick background, and we will then give you the date. This happens to be a very busy time of the year for us. People trying to get foundations in, people trying to get certain things done to their homes okay at this point. We have checked the records, we have checked our agenda for the month of December, it is impossible. The next available date is January 17th. That is the best I can do at this time. MATTHEW PACHMAN: Regular time? CHAIRMAN: Yes, it will be at, we'll try to put it on at the beginning of the hearing process. I won't say it's the first one but somewhere in that general range or in mid stream or whatever the case might be. MATTHEW PACHMAN, ESQ.: Mr. Chairman I don't have my January calendar with me. Something about the 17th CHAIRMAN: We're flexible for that day or the following Thursday. MATTHEW PACHMAN, ESQ.: If I could give a call tomorrow, there's something about that date. CHAIRMAN: And all we're going to do is modify that date based upon, at our Special Meeting which will be on the 29th. So if you look at this situation here, we're at the 15th, the next meeting is less than a month away, and we have a huge agenda tonight. This is not in any arbitrary that we're setting this date. As long as it is the 17th or the following Thursday, Mr. Pachman,which MATTHEW PACHMAN, ESQ.: What time would that be at? CHAIRMAN: We're going to set it around 7:00, 7:15. Page 18-November 15,2001 ZBA Public Hearing Tianscnpt(s) Town of Southold MATTHEW PACHMAN, ESQ.: Will it be at the foot of the calendar or the head of the calendar? CHAIRMAN: It will be very close to the horse's neck. As opposed to the tail. We will try and get this to the point. But I do want to say this at that hearing, that I would certainly would want to restrict this hearing to about one hour and get it taken care of at that point. UNKNOWN: Mr. Chairman, I didn't speak tonight but if I could hold this down to one hour, I would be shocked. MEMBER COLLINS: Mr. Chairman, we will re-advertise it, will we not to make it perfectly clear to everyone what we're hearing? CHAIRMAN: We're telling you the 17th, Mr. Pachman is informing us that he may not be available on the 17th, okay. Let me just tell you what that does to us, if we have it on the 24th we do not have time to have a Special Meeting after that in the month of January. So the 17th is better for us. I'm just telling you that, okay. You're going to let us know. MATTHEW PACHMAN, ESQ.: There might be a conflict on that. CHAIRMAN: We'll let you know. I make a motion recessing it to January 17th at 7:00 or 7:15. / fit 160 End of hearing. pp) "U SEE MINUTES FOR RESOLUTION 144/03/81 _ 14:58 N0.093 D01 PACHMAN & PACHMAN, P.C. ATTORNEYS 386 VETERANS MEMORIAL HIGHWAY COMMACK,NEW YORK 11725 (631)543-2200 TELECOPIER(631)543.2271 COUNSEL HOWARD E.PACHMAN MATTHEW E.PACHMAN HARVEY B.BESUNDER JOSHUA M.PRUZANSKY J.DAVID ELDRIDGE DEBORAH M.RAYNOR TELECOPIER TRANSMITTAL COVER SHEET OUR FAX NO. : 543-2271 DATE: October 3, 2001 TO: Linda Kowalski, Zoning Board of Appeals Clerk FAX NO: 631-765-9064 FROM: HOWARD E. PACHMAN, ESQ. RE: KACE V. TOWN OF SOUTHOLD MESSAGE: Please forward the letter transmitted herewith to Gerard P. Goehringer, Chairman and the Board Members. Thanks, Howard. NUMBER OF PAGES (including cover) 3 IF YOU DO NOT RECEIVE ALL OF THESE PAGES, PLEASE CONTACT Barbara AS SOON AS POSSIBLE AT (631) 543-2200. THIS MESSAGE IS BEING SENT BY TELECOPIER ONLY UNLESS OTHERWISE MARKED BELOW: REGULAR CERTIFIED REGISTERED BY HAND FEDERAL COURIER MAIL MAIL MAIL EXPRESS PIRIVILEGE CONFZDENTIALI'PY NOTIC The information in this telecopy is intended for the named recipients only. It may contain privileged and confidential matter. If you have received this teleoopy in error, please notify um immediately by a collect telephone call to (63L) 543-2200 and return the original to the sender by mail. We will reimburse you for postage. Do not disclose the contents to anyone. Thank you. Y 1tJ%✓JJ�GJ L 14,JO I`lu.Y_17J yN.IC P.aCHMAN & PAC MAN. '.C. ATTORNEYS 36O VETERANS MEMORIAL,HIGHWAY GOM 4AGK, NEW YORK t 1726 r�F r` TELgts pmma,c tk,,7!4a-227 I HOWARD E PgOMMAN 2 1 T (etc_ •I 1 F. I 11 MATTHEW . PAOHMAN 11\1 . OCT - 3 2001 !i l 1 I))� COUNSEL DAViD EI pRIOGE I ` }'i/ HARVEY B BE LLNBER DEBORAH M.RAYNOR 1� i JOSHUA.M.FItV7.A1VSk,'K October 3,2001 VIA FACSIMILE Gerard P. Goehringer,Chairman Board of Zoning Appeals Town of Southold,Town Hall 53095 Main Street P.O. Box 1179 Southold,New York 11971 Re• Kace LI,LLC Appeal #5003 October 4, 2001 Dear Mr. Goehringer: As you know,we have received copies of several letters:one ofthe objector,Robert E.Young,who spoke at the last meeting and another letter from Anthony B. Tohill,Esq. advising that he may be retained by another objector, Joseph Berardino, and requesting a month's adjournment so he can understand the matter proposed, so he can assert his purported objection(s). We reel,on behalf of our client,that it is unfair for the application to be continued tomorrow and then permit the objectors' time in which to ruotmt their opposition. As is the usual practice, both sides should submit their cases during the same meeting and,if there are open items,they are left to be answered by further submissions. To do this any other way will also use up the time and energy of the BZA, which, l must observe. has its usual full and overflowing calendar. It is my suggestion that the request of the objectors and their attorney that the matter be adjourned be granted. We are advised that the next available date and time is November 15°at 5:15 p,m. We will be ready 1Fn/E7=i X11 J-4:06 1'U.E'J7J LYLJJ • - Page 2 Gerard P. Goehringer, Chairman October 3, 2001 to proceed and believe that the objectors Will have their month's adjournment and sufficient time for their preparation. Thank you for your kind attention to this request, Very truly yours, HOWARD E. CHMAN HEPiblb cc: Kace El',LLC James Dinizio, Jr.,Board Member Lydia A. Tortora,Board Member Lora S. Collins,Board Member George Homing,Board Member rADals\C ENIS KONTOKOSIKecesmua®:e\GoMPtager.hr4.wp8 9 • ) L'G� o�QL �t ;00* it- *Z/ _a� / m,� 'raw ,'ZONING BOARD OF APPEALS L. TOWN OF SOUTHOLD - X In ',the Matter of the Application ` of Appeal No. 5003 KACE LI, LLC MEMORANDUM OF LAW X I (A) It is beyond cavil that "zoning restrictions, being in derogation of common-law property rights, should be strictly construed and any ambiguity resolved in favor of the property owner. " Toys R Us v. Silva, 89 N. Y. 2d 411, 654 N.Y. S . 2d 100 (1996) . II (A) Moreover, because "the legislative intent is to be ascertained from the words and language used" (New York State McKinney' s Statutes (Statutes) §94) , words in a legislative enactment such as the Southold Town Zoning Code (Code) , must be read and construed as a whole. All parts of the Code are to be read and construed together to determine the legislative intent (Statutes §97) . Thus, all the parts of the Code must be harmonized with each other as well as with the general intent of the whole Code, and effect and meaning must be given to the entire Code and every part and word thereof (Statutes §§98, 231) . Master Cars, Inc. , v. Walters, 95 N.Y. 2d 395, 718 N.Y. S . 2d 7 (2000) . II (B) Pursuant to General Construction Law (GCL) §41 and New York State Town Law (TL) §63, a Town Board acts in each instance by an affirmative vote of a majority of its members, and not by its consultants or attorneys . The allegation that different portions of Local Law 1 were drafted by different people, if true, is irrelevant to this' application. The Town Board adopted the Code, as an integrated whole, and as previously noted, each part of that Code must be read together. II (C) In Code §100-31 (A) (1) , each of Southold' s other residential zoning districts (A-C, R-80, R-120, R-200, and R-400) list " . . . one family detached dwellings, not to exceed one dwelling on each lot" as a permitted use (emphasis added) . Clearly, the Code employs consistent and unambiguous language when it limits residential dwellings to one per parcel. In stark contrast, there is no such limiting language in Code §100- 42 (A) (2) . In interpreting the meaning of a Code section, the ZBA is prohibited from seeking to explore the intentions of the legislative body. If the Code, as here, is unambiguous, the legislative intent is overt: a one-family or a two-family dwellings which meet the other Code requirements, e. g. the bulk and dimensional requirements, public water and sewer availability, and 2 site plan approval, if applicable, are permitted by the Code because they do not present the land use concerns that that unpermitted or conditional uses pose. Simply stated, there is nothing uncertain, ambiguous or accidental about the language in §100-42 (A) . The Code §§100-31 and 100-42 were adopted simultaneously as part of Local Law 1 of 1989 . Obviously, the distinction between the limiting language in the former, and the conspicuous absence of such language in the latter was not inadvertent, but instead deliberate. II (D) Where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what was omitted or was not included was intended to be omitted or excluded (Statutes §240) . In the instant case, it is indisputable that in the Southold Code, five (5) of the six (6) sections governing Permitted Uses relating to one-family dwellings (A-C; RO; R-80; R-120; R-200; and R-400) , expressly limit the permitted uses to: "One-family detached dwellings, not to exceed one dwelling on each lot. " (Emphasis added) . It is clear that the Town Board as the enactor of the Code intentionally chose not to include such language limiting in 3 Y t Code §100-42 . Based upon the maxim expressio unius est exclusio alterius, when such limiting language is expressly provided in the five other pertinent sections of the code, and not in Code §100-42, it was intentionally omitted and excluded from that section. II (E) It is also to be presumed that the Town Board intended to enact that which is reasonable and that no unreasonable or absurd result was intended by the board (Statutes, §145) . Under the objectors' theory, KACE could build only one two-family house, but many multiple dwelling units (which listed as a conditionally permitted use, actually constitutes a legislative finding that such dwellings are in harmony with the community' s general zoning plan and will not adversely affect the neighborhood) . Twin County Recyclinct Corp. v. Yevoli, 665 N . Y. S. 2d 627, 90 N. Y. 2d 1000 . This is exactly the position taken by the Building Inspector as evidenced by his letter to KACE dated August 9, 2001 . Such a construction must be rejected as absurd. III (A) A legislative body such as the Town Board has the right to define any word or phrase used in a statute (Statutes §75 (b) ) . A statutory definition will supersede the commonly accepted dictionary, or judicial, definition. The Town Board did so by adopting Code §100-13 (A) which 4 reads, in pertinent part, "word usage. . . the singular number includes the plural and the plural, the singular. . . . " III (B) The GCL sets forth certain rules for the construction, interpretation, and operation of statutes in general, such as the Code, and specifies the meaning and scope of certain terminology. The act provides that it is applicable to every statute (GCL §110) which includes the Code, unless the wording of such Code plainly expresses a contrary intent. GCL §35 reads : "Words in the singular number include the plural, and in the plural number include the singular. " Thus, Statutes §252, cited by the objectors, which reads: Singular and plural forms of words will be literally construed in statutes unless it is necessary to depart from strict usage to give effect to the legislative intent . is superceded by both Code §100-13 (A) and GCL §35 and is inapplicable to this matter. IV (A) When different terms are used in various parts of statute or rule, it is reasonable to assume that a distinction between such terms is intended. Albano v. Kirby, 36 N.Y. 2d 526, 369 N. Y. S . 2d 655. 5 Lastly, statutes which relate to the same or related subjects are "in pari materia" and are to be construed together unless a contrary intent is clearly expressed by the legislature. The rule that statutes in pari materia should be construed together applies with particular force and effect to such as Code §§100-31 and 100-42, which we enacted at the same time. CONCLUSION The relief requested by the applicant should be granted. Respectfully submitted, PACHMAN & PACHMAN, P.C. Attorneys for KACE LI, LLC 366 Veterans Memorial Highway Commack, New York 11725 (631) 543-2200 Dated: February 28, 2002 F:\Data\CLIENTS\KONTOKOS\Kace\ZBA\MOL-final.WPD 6 • V • Appeal No . 5003 ZONING BOARD OF APPEALS TOWN OF SOUTHOLD In the Matter of the Application of KACE LI , LLC MEMORANDUM OF LAW rr , TRANSMITTAL COVER SHEET TO: ZBA Chairman and Members FROM: ZBA Office Staff DATE: March 22, 2002 SUBJ: Copies of File Info Re: Kace LI#5003 Copy of the Memorandum of Law submitted 2/28/02 by Matthew Pachman, Esq. for the applicant. Extra copies were not available at the night it was submitted. This copy is for your review and use. Thank you. -,ANSMISSION VERIFICATION REPORT `" - •, TIME : 03/22/2002 11:22 DATE,TIME 03/22 11:19 FAX NO./NAME 2989408 DURATION 00:03:13 PAGE(S) 07 RESULT OK MODE STANDARD ECM • PAGE 3-SEPTEMBER 20,2001 ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD CHAIRMAN: We understand that sir. That doesn't mean we're going conclude it on that night. All that very simply means is that we are going to, we will probably continue from that particular point on. I understand that, and I want you to be aware that, in my particular situation, it takes me sometime to understand exactly what applicants, this is a generic statement, are requesting. Therefore, I like to take it in stages, rather than try to cram it into one specific hearing notice and one specific time. If you have specific concerns regarding this, then you are certainly welcome to voice them. The hearing will remain open. We will accept letters from you or from any spokesperson from your group. Mr. Pachman, we're ready any time you are. MATT PACHMAN: Mr. Chairman, I'm sorry,but the person that spoke, if I could have their name for the record. ROBERT YOUNG: Robert Young, 62625 C.R. 48. MATT PACHMAN: Now. Mr. Chairman I certainly will proceed tonight and I appreciate the opportunity. The reason why I ask you that, and I appreciate that you gave me that explanation because when you hear our application, I think you will understand that we're not asking this Board to make any determination with respect to the site plan. It's our condition that the site plan is in effect. That's why I'm interested in understanding what your counsel's conversation with the Board was with respect to it. In any event, I will proceed at this point, and hopefully I can give. CHAIRMAN: You will be able to discuss that with counsel on October 4th. He is not coming back until the latter part of September, so therefore that is the, normally we would try to meet next week but it will be the week after. MATT PACHMAN: Well then, Mr. Chairman and Members of the Board, my name is Matt Pachman, Pachman and Pachman, 366 Veteran's Memorial Highway in Commack, New York. This application is an appeal requesting an interpretation reversing the Building Inspector's Notice of Disapproval dated August 13, 2001, which denied the application for a Building Permit for two-family houses under Article 4, Section 142.A of the Town Zoning Code. KACE LI INC is the owner of a 70-acre parcel of land located on the south side of Route 48, near the juncture of Chapel Lane. The property has been owned by KACE or its predecessors since March 10, 1982, which is approximately 19 1/2 years. On July 11, 1983, the Southold Planning Board approved a Site Plan for Kace to build a condominium development at the subject property known as "Northwind Village". Mr. Chairman, I would like to hand up to the Board copies of the Site Plan, signed by Henry Raynor, as Chairman of the Planning Board on that date. CHAIRMAN: I just want you to know Mr. Pachman, that counsel may resort to return those; I have no idea at this point. We'll accept them at this point, temporarily. MATT PACHMAN: Very good Mr. Chairman. CHAIRMAN: I don't like to load anybody up here, I'm telling you straightforward. PAGE 4-SEPTEMBER 20,200. ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD MATT PACHMAN: Well, Mr. Chairman you mentioned something that I really don't understand it, because the very essence of our application here is that, as a matter of law, the building Inspector could not deny this Building Permit because of the approved Site Plan. So when there is a statement that it be on a Site Plan, which is the basis of the application that you've heard or that the court is not going to entertain any questions about the Site Plan. CHAIRMAN: Well, actually there's a little more. We weren't even going to accept any testimony about Site Plans. I'm just telling you what counsel told me. MATT PACHMAN: Okay, very good. Pursuant to the Suffolk County Sanitary Code, Chapters 760, no parcel of real estate can be commenced or to be developed until the Suffolk County Department of Health, has approved the proposed water supply and sewage disposal facilities and pursuant to the Town's Zoning Code 85.8 Subdivision G, before a Building Permit can be issued to commence construction of the property Kace had to obtain the approval for the proposed water supply and sewage disposal system from the Suffolk County Department of Health. In 1983, and Mr. Chairman, I'm going into the chronology because it's very important to understand why we say that the Building Inspector, as a matter of law, improperly turned down this Building Permit Application. CHAIRMAN: You're talking about the current August 13th MATT PACHMAN: Absolutely. You can't understand the nature of our belief that the Building Permit Application denial is improper without understanding the history. In 1983 the Trustees of the Village of Greenport acting in their capacity as the Board of Water Commissioners, administered an exclusive franchise for the services of Water and Sewer for this territory beyond the limits of the Village of Greenport, which include the subject parcel. This satisfied the requirements of the Suffolk County Department of Health that I just mentioned to obtain the required approval. All proposed building projects where construction, housing, or sewer development, in this area such as the Northwind Village project, had to obtain the approval from Greenport for water and sewer services at that time. On January 10, 1983, Kace applied to Greenport for water and sewer approval for the project. The Utilities Committee of the Village, which assisted the Village Board in administering this franchise approval Kace's project for water and sewer services and referred the matter to the Building Board, and the Trustees of the Village denied Kace's application on July 18th, 1985. By letter dated December 30, 1986, Kace was informed by the Town of Southold Building Inspector that a Building Permit is ready to be issued for this project and the only thing it needed was water and sewer approval from Greenport and I have a copy of that December 30, 1986 letter from the Town Building Inspector confirming this. I'm handing this up to the Board and I ask that this be made a part of the record. On February 24, 1987, Kace again applied to Greenport for water and sewer services for the project. Again, on March 23, 1987 the Utilities Committee of the Village approved Kace's application and sent it on to the Village Board of Trustees. On December 7, 1987, Kace again submitted the application PAGE 5-SEPTEMBER 20,2001 ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD to the Village of Greenport Trustees for approval. The Greenport Trustees, at that time, failed to rule on Kace's application for water and sewer services. As a result, Kace remained unable to obtain water and sewer services for the project. Without that pre- condition, Kace was unable to obtain a Building Permit. On or about May 20, 1987, Kace commenced an action in the United States District Court for the Southern District of New York against Greenport due to its refusal to rule on Kace's application. Now on July 1994, while that Federal Court action was continuing, the Southold Town Board re-zoned the parcel from multiple residence, M1, to HD. On February 6, 1996, a stipulation and order was entered in the Federal Court action and it was so ordered by U. S. District Court, Shira Shindler and thus made an order of the court. I hand up a copy of that Order of the Federal Court again ask it be made part of the record. Mr. Chairman and Members of the Board, the importance of this Federal Order was that Greenport was ordered to provide sufficient sewer capacity within four years of the execution of the stipulation, in other words, on or before February 6, 2000. The stipulation also said that Greenport acknowledges that it had water capacity at that time, and thus the project had the water approval necessary. Thus the only thing that was keeping this project from getting a Building Permit was the sewer approval from the Village at that time, and the Village had four years until February 6, 2000 to provide sewer services. There was no other pre- condition, no other requirement, no other hurdle as determined by the Southold Building Inspector to return the Building Permit. Prior to the expiration of this February 6, 2000 deadline, as ordered by the Federal Court in that stipulation, in October 1999 the Southold Town Board voted to re-zone this parcel from HD to R80. By judgment dated December 4, 2000 Justice Berler of the Supreme Court Suffolk County overturned the re- zoning and stated it was violative of the New York State Town Law. The Court said that the purported re-zone was illegal, void and of no effect. I have a copy of that order by judgment from the Supreme Court Suffolk County, which I am handing and I ask that that may be part of the record. CHAIRMAN: Mr. Pachman I just have to ask you to speak a little closer to the mike, because these people are sitting on the other side of the room. MATT PACHMAN: I apologize; I thought I was speaking loud enough. CHAIRMAN: Just pull it a little closer to you. Thank you. MATT PACHMAN: The Town Attorney's office did file a Notice of Appeal with respect to that judgment that I'm referring to from Justice Berler. In a letter dated July 14, 2001, he submitted a stipulation where it formally withdrew that Notice of Appeal. I hand up a copy of that letter of transmittal to the Clerk of the Second Department Appellate Division which had that stipulation. That withdrawal ended that litigation, and thus the property today remains HD. Since that time the applicant has been seeking to get the Suffolk County Water Authority to abide by the terms of the Federal Court stipulation and provide water to the project. As this Board is aware, the Village of Greenport sold the franchise with respect to water to the Suffolk County Water Authority. The Suffolk County Water Authority is a successor, and thus we now have to deal with that entity. Mr. Chairman and Member of the Board, Kace has been caught in the • PAGE 6-SEPTEMBER 20,200. ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD proverbial revolving door. Its Building Permit was subject to and conditioned upon authorization from Greenport to connect to its water and sewage system. Again, I emphasize that was the only last remaining pre-condition to obtain the Building Permit. As I noted, Greenport initially denied the application for water and sewer, the applicant had to go to Federal Court. The Federal Court Action was resolved by an order of the Federal Judge saying that the Village and now the Suffolk County Water Authority had until February 2000 to provide water and we're still, at this point, attempting to enforce that stipulation. Southold Town Code Section 100.255B states "All site plans should receive final approval prior to the enactment of this Article shall remain valid for a period of three years from date of such enactment. This period will begin if of all governmental approvals had been obtained. Since the Suffolk County Water Authority has not yet issued its approval for water, this period has not been commenced. Again, Mr. Chairman and Members of the Board, the reason why I'm taking this time at this late hour to go in detail through the chronology and to explain the long and detailed history of this project, is because it is essential, Mr. Chairman, to understanding why, at this late date when that was the only pre-condition to obtaining a Building Permit, why it is improper for the denial of the Building Permit now. The only change with respect to this project, since the 1983 site plan approval is that the Zoning classification of the property has changed from light multiple residence to HD. Now, Mr. Chairman, I hand up copies of the pertinent portions of the Southold Zoning Code, the M1 Zoning Code in 1983 and the HD Zoning Code now. I ask that these collectively be made part of the record. BOARD SECRETARY KOWALSKI: (Received (8) Exhibits) This copy(Exhibit 7) is M light, no M1? Did you mean M light? MATT PACHMAN: It's specifically M1 Zoning. BOARD SECRETARY KOWALSKI: But this is (a copy of) the M Light that you're submitting? MATT PACHMAN: That's the zoning. BOARD SECRETARY KOWALSKI: So it was not zoned M Light. MATT PACHMAN: It was zoned M Light, Multiple Residence dwelling. BOARD SECRETARY KOWALSKI: Okay, that was different than Ml. MATT PACHMAN: Yes, M Light Multiple Residence. Thank you for that clarification. Also have copies of what I just handed up on the display board to make it easy, for easy reference. Members of the Board the importance is, that as you can see, the language of these two Codes are word for word identical. No building or premises shall be used, and no building or part of the building shall be erected or altered, which is arranged, intended or designed to be used in all or in part for any use except the following. In 1983 it was Multiple Dwellings, now it's two-family dwellings. So in reality, the only change, the only relevant change to the zoning of this parcel is that multiple dwellings, used to be PAGE 7-SEPTEMBER 20,200 ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD permitted as a matter of right and they were deleted as a matter of right and instead we have two-family dwellings as a matter of right. The applicant has correspondently , changed the plan in only that one respect. Instead of developing the structures as approved on the 1983 site plan for multiple residence it's agreed to develop them for two- family residence, as permitted as a matter of right in the HD Zoning District. There is no other change, there is no change to the site plan whatsoever; no change to the site plan whatsoever. The applicant intends to develop this property as you see on the 1983 site plan, it's going to look identical, and it is identical. Kace is in no way responsible for protracted municipal delay, which I just had detailed to you. It's expended substantial money, time and effort, and was, and remains prepared to commence construction of the project. This site plan has been, at all times and continues to be, valid, pursuant to the express terms of the Southold Town Code. The prior Building Inspector's determination that the Building Permit was issued upon approval by the Suffolk County Water Authority still remains in effect. Mr. Chairman and Members of the Board, the Appellate Division Second Department in the case of Kennedy vs. the ZBA of the Town of North Salem, has ruled that under these circumstances it is arbitrary, capricious and illegal for a subsequent Building Inspector or, for that matter, for this Board to come to any other conclusion and Mr. Chairman, I hand up a copy of that case for your reference. Mr. Chairman I understand that, based upon what you've said, it's the desire of this Board to hold this hearing over to October el. I hope you see why it is important to understand the history of this, to understand why we say that this new denial by the Building Inspector is arbitrary and capricious. I received at 4:05 today, literally as I was walking out the door, a memo from the Planning Board; and although I was going to address that tonight, I will hold that now, hold those comments over for the next hearing, and I would certainly be interested in understanding what the Town Attorney or whoever advised you, this Board about listening to testimony concerning the site plan. And, I think it would be important and only fair, Mr. Chairman, that the applicant has an understanding about what these supposed ground rules are before we come in here so that there is a level playing field. Because to the degree that we believe that that may not be legally proper, we want to have an opportunity to address it. We filed this application quite some time ago. We filed this application initially in December 2000. The Building Inspector said it was denied, multiple family residences longer permitted as matter of right. We amended it for two-family dwellings. I think it only proper that we have an understanding about what anybody advising this Board is saying with respect to this application prior to the next hearing date, so that we may have a full and better opportunity to respond and to not further delay this matter by asking for an adjournment on that day because of information that we're just receiving at that time. CHAIRMAN: I'm not positive I can comment on that tonight. MATT PACHMAN: Mr. Chairman, I'm not asking you to do so. I will say, however, it is my understanding, I would ask, Mr. Chairman, if there was any type of submission or memo or anything that the Town Attorney did supply to the Board to discuss this matter. CHAIRMAN: In reality, I explained to you in the beginning that we thought your application was a little deficient, even without counsel, we allowed you to continue with PAGE 8-SEPTEMBER 20,2001 ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD your not only your chronological order which is certainly helpful to understand. We didn't stop you in any way tonight. MATT PACHMAN: Absolutely, you didn't. CHAIRMAN: We didn't give you the time out sign. We didn't mount any attack towards your presentation. We understand your frustration, we know the applicant very well. I've known Mr. Kontakosta for many years; in fact I've known him since 1976. Working with 57 attorneys in my present position, there are times when attorneys say certain things, and you abide by those. I don't know what the reasoning was. That's all I can say. MATT PACHMAN: Mr. Chairman, I would just say that if for any reason the Board feels that the application is deficient, I would like to know that, because I would like to have an opportunity to amend that to the Board's satisfaction. The Clerk did request I give an explanation for the Interpretation; I did file what I thought was an adequate explanation to be supplemented, of course, by the Public Hearing that's why we're here tonight. If there is anything further that the Board needs in terms of the application to alleviate anything about what you mentioned to you we would like to know it, because given that the Board has held this matter over I would certainly like to provide the Board with all the necessary documents and information to form a complete record. CHAIRMAN: Do you want to comment on it, Lora? MEMBER COLLINS: I think that the reason why I am and other Members of the Board felt the application, the application placed before us dated 8/23/01 turning into Appeal #5003, it said the Building Inspector has denied our application for the construction of an unspecified number of two-family dwellings on this lot -- it said that because we know that's what the Building Inspector said -- and it said this is an Appeal but there was no indication in the Appeal you gave it tonight, what you were asking. Tonight you said, you want us to interpret the law and reverse the 8/13 Notice because there exists an old site plan. You mentioned the old site plan in your application but you certainly didn't explain, as you have attempted to do tonight, why the existence of a site plan for a different project, in my view it was a different project, in 1983 was relative to your request. Tonight you have elaborated, at length, and I think therefore from the point of view of feeling the application was inadequate, you filled in the blanks. We certainly haven't gotten to the pros and cons, a key one of which is your assertion that the Building Inspector's statement to your client in 1986 that the only bar to a Building Permit was getting water and sewer, but that is a binding, that binds all future Building Department actions". I find that quite an extreme statement and I won't go any further. Those are the things we haven't discussed. I do think, and I think the Chairman will agree, that the issue of the indefiniteness or — I don't have the right word - the lack of definitiveness in your appeal as put before us on paper,has been taken care of by your testimony tonight. MATT PACHMAN: I appreciate that you've cleared that up, and we'll resolve that. Thank you. PAGE 9-SEPTEMBER 20,2001 ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD CHAIRMAN: Thank you, which I assumed you would do any way. MEMBER COLLINS: I think that's why we had you come on, even though we had an appeal that probably most of us found didn't tell us what you were looking for. We thought you would come and tell us. MATT PACHMAN: Yes. CHAIRMAN: It would be important on who that Building Inspector was, if it was Victor Lessard, we have a major problem because the gentleman is no longer with us. MATT PACHMAN: Mr. Chairman, the person that signed that 1986 letter was Victor Lessard. CHAIRMAN: So, at this particular time, we will take some brief testimony, we will recess the hearing and we'll go from there. MEMBER COLLINS: Mr. Chairman, if the testimony is going to be broadly from people who are, broadly speaking, in opposition, I fear that they're going to testify to why they dislike the project, they think the project is unwise; we've seen written input from the gentleman who spoke before, that he sent to us. I don't think that addresses the issue in front of us. The issue in front of us is whether the existence of a site plan approved in 1983 binds under the reading of the law the Building Department to let them do now, what they want to do now. That's the issue, and frankly, I don't think that these folks without an attorney are in a position to say much about that. CHAIRMAN: We've never restricted anybody from speaking. MEMBER COLLINS: I understand that, I just wanted to get my two cents in. CHAIRMAN: We'd just like to take some brief statements from you and then we're just going to conclude this for the evening if you don't mind. We'd like you to use the mike if you would sir. The usual question, the proverbial statement that's made is that if you are not available on October 4th, we would certainly like to take a statement from you tonight. But we want you to be available on October 4th, and anything after that. ROBERT YOUNG: I can only speak for myself, but I do believe that all of the parties interested believe there are organizations in the Town of Southold. North Fork Environmental Council is interested in this matter. They have so expressed it. I believe that my letter does not address the issues that were presented tonight. I had no notice about this, the only other notice that I've had is a driveway was cut from the project onto the North Road in March of this year and it was stopped, apparently,by some action from the Building Department. And redo, as I see it, and not speaking further to our meeting with counsel (inaudible). PAGE 10-SEPTEMBER 20,20G, ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD CHAIRMAN: We urge you to bring all interested parties on October 4th. I hope we get this room on October 4th. We may or may not have it. We may all be crammed into the Town Board Room. ROBERT YOUNG: But then in terms of having a representative address this Board, will we have to have a complete brief and presentation at that time, or will we be able to be given a period of time address the proactive test. CHAIRMAN: We'll make a determination at that time. I assure you that this Board has never, we're just not in a position to not take testimony from a person or people that are not ready to, and that testimony is not ready to be given. This is still America, and we're waiting for your response. ROBERT YOUNG: As a layman in this area of the law, all I can say to the Board is that there has been a tremendous change since the renovation of the plans that were properties on the North Road. It has become a death trap for traffic for cars, for pedestrians or cyclists. We've seen close misses every day of our lives getting in and our of our driveways, it's next to impossible and I hope not only this Board, but the applicant will be able to address that problem and other problems in the course of pursuing their project. I certainly recognize that they've owned the property for this period of time and they should have the right to develop it in a way that is consistent with the community and our laws but, at this point in time, the situation is extremely serious for those of us who live there. The traffic condition has become such that we are creating problems, Foxwood, the ferry and developers are being responsible for, but we're bearing the burdens and we're bearing the risks. We certainly hope that this Board can develop some considerations on whatever issues you address. CHAIRMAN: We will certainly try. Thank you. ROBERT YOUNG: Would it be appropriate for the other interested parties to identify themselves for the record or. CHAIRMAN: Let's wait until October 4th, if you don't mind. I just want to go back to the Building Inspector one time. Mr. Forrester, we do have a couple of pertinent questions. We realize you're still here and I think at this time we'll ask you a few if you are able to come on October 4th, we would appreciate it. We want you to think about these questions between now and then. So we'll go with Mrs. Tortora first. MEMBER TORTORA: I just want to jump down to permitted uses in the HD Zone, because I'm not 100% clear on all this. In your Notice of Disapproval it says that proposed project indicates several, exact amount unknown, two-family dwellings on a single parcel, Code allows only one such structure per lot as a permitted us. I know that's true in the R80, R40, AC, RO, and MI and II. In fact that is that fact via, those exact words appear in each of those districts,but it doesn't appear in the HD. ED FORRESTER: Do you want me to respond, or do you want me to wait until the 4th? PAGE 11-SEPTEMBER 20,20(,.- ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD MEMBER TORTORA: I'm just curious as to why? ED FORRESTER: In a matter of admitting that Section of Code 100-42A, permitted uses, the office saw fit to use as singular, one family dwelling, and two-family dwelling. That is the basis for the disapproval. MEMBER TORTORA: That's true,but if you go to 100-31.A1, the exact language under that which is AC, R80, 120, 200 and 400, the permitted use is one-family, detached dwellings,plural,not to exceed one dwelling on each lot. ED FORRESTER: Yes, I'm familiar with that section; however, I wasn't dealing with that section of the Zoning Code. MEMBER TORTORA: Then there's 100-31 permitted by Special Exception, 100-31.B it says two-family dwellings not to exceed one such dwelling on each lot. ED FORRESTER: I didn't write it, I just interpreted it. MEMBER TORTORA: That's what I mean. That's why I was curious because the quality. ED FORRESTER: I understand the question. CHAIRMAN: I mean you surely don't have to give us an answer. Is that it? MEMBER TORTORA: That was the main question. CHAIRMAN: Thank you again. MATT PACHMAN: If I just may make a quick statement to Miss Collins. I just want to point out that you said, that we are asking you to interpret the law and with all due respect, Miss Collins, we're not asking that. We're asking you to review Mr. Forrester's interpretation of the Code as per the colloquy between Mr. Forrester and a Member of the Board. Now you want to make sure that the Board understood that that what we were asking the Board to do. MEMBER COLLINS: Okay I was working from my notes, listening to you and you said you are asking for an interpretation and a reversal. I think what you wanted to say was you are asking us to reverse his interpretation of the law. MATT PACHMAN: Maybe we are being in semantics, and I don't mean in any way, we were asking for a reversal of Mr. Forrester's determination based upon this Board's interpretation of the Section of the Zoning Code that had been discussed here tonight. I hope that that explains it. If it's not, I will certainly try to explain it further. But that is what we are seeking at this point. PAGE 12-SEPTEMBER 20,20S„,.- - ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD CHAIRMAN: Thank you. I just want go down on notice that we are going to set a time of 7:15 p.m. on October 4th. I want to be honest with you; I have a trial that day, so I hope I'm going to be there. I may be late. Mr. Forrester, we thank you. ED FORRESTER: It's a Thursday? CHAIRMAN: October 4th, it's a Thursday. Thank you, I wish you a safe home, because I know you're going as far as these nice gentlemen next to you. I'm just going to entertain this question from this nice lady in the back on my left and we're going to recess the hearing. Yes, ma'am. Could you just come up and use the mike. I'm sorry to put you on the spot but if I get yelled at from this nice lady sitting to my right here. NANCY FOLEY: My name is Nancy Foley. My only question now is, exactly how many houses are being built. CHAIRMAN: We really haven't gotten to that, and I'm not trying to be, but this is some of the stuff that we are referring to as fill-ins. MATT PACHMAN: Mr. Chairman, it's pursuant to the site plan that's been in effect since 1983. We're not changing the structures on the site plan in one single respect. So the number is exactly what's shown on the site plan. The amount of dwelling units will be, it's not 108 as mentioned in the letter today, and it's half of that. But the number of structures is the exact number of structures that had been on the site plan since 1983. So it's not an indefinite number, it's the number of structures on that are on there. CHAIRMAN: Thank you. Hearing no further testimony, I make a motion recessing this until 7:15 p.m. on October 4th End of hearing. SEE MINUTES FOR RESOLUTION Prepared from tape recordings by Paula Quintieri SOUTHOLD TOWN BOARD OF APPEALS TRANSCRIPT OF HEARINGS HELD SEPTEMBER 20, 2001 (Prepared by Paula Quintieri) U-.1(_ rayl l� v Present were: 1Le l) 01) 01 bc(Cik." n- Chairman Goehringer 61 Member Dinizio Member Tortora Q Member Collins Member Horning Linda Kowalski, Board Secretary Paula Quintieri, Secretary dJZ PUBLIC HEA 6:37 p.m. Appl. No. 4993 —MICHAEL AND JOANN DEANGELO. This is an appeal for a Variance based on the Building Inspectors July 25, 2001 Notice of Disapproval regarding the proposed location of a swimming pool in a yard other than a rear yard, required by Code Section 100-33. Location of Property: 2080 Elijah's Lane(and Birchwood Road), Mattituck; Parcel #1000-108-3-5.015. (to be inserted) 10:48 p.m. Appl. No. 5003 —KACE LI, INC. This is an Appeal requesting a Reversal of the Building Inspector's Notice of Disapproval dated August 13, 2001, denying an application for a building permit for two-family dwellings under Article IV, Section 1000-42A.2. The reason stated in the Notice of Disapproval is that the proposed project indicates several two-family dwellings on a single parcel, and that the Code allows only one such structure per lot as a permitted use. Zone District: Hamlet-Density (HD). Location of Property: South Side of North Road (a/k/a/ C.R. 48) (now or formerly referred to as "Northwind Village" site), 500+- feet east of Chapel Lane, Greenport; Parcel#1000-40-3-1. CHAIRMAN: Mr. Pachman, we honestly feel that the file is somewhat deficient in some of the information that we would really need to understand this; so we would hope that PAGE 2-SEPTEMBER 20,2001 - - ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD upon the presentation tonight, we will thoroughly understand this file. If we don't, we're going to ask you to enhance it more after this hearing. I would appreciate that. MATT PACHMAN: Very good, Mr. Chairman. Thank you. CHAIRMAN: Mr. Forrester, you've sat back there patiently for the last hour and a half. You have been a wonderful person to this Board, and we ask you to come forward and shed some light on this Notice of Disapproval that you had written. I believe we're discussing the August 13, 2001, and any other notes you'd like to shed. ED FORRESTER: Okay. During this Notice of Disapproval the application was submitted to my department August 10, 2001. The applicant had previously filed for a project of construction to develop this site. This is an amended application as noted on his application. The use let me back up to August 8th. On August 8, 2001, I received a letter from the applicant's attorney where council has requested I review the application as two-family dwellings and not as multiple dwellings, as previously applied for. I responded to the request, in a letterform, requesting a formal application as I and in a Notice of Disapproval, if he wanted to appeal it, I need the application to formerly process the Notice of Disapproval. On August 10th, I received the application. I believe the Board has a copy of it. CHAIRMAN: Yes, we do. ED FORRESTER: In applying the Code, code analysis to the project, if you look at the intended use the appropriate Section of Code in the case is 100-44 HD District. That's what the parcel falls within. To propose to erect several two-family dwellings on the lot. The Interpretation of Code as permitted uses, under Permitted Uses 100-42A.2. The permitted use is a two-family dwelling. That is my determination, that a single two- family dwelling was a permitted use, several two-family dwellings were not. A Notice of Disapproval was issued based on that determination, signed on that date. CHAIRMAN: Does the Board have any questions of Mr. Forrester, at this time? MEMBER TORTORA: Not at this time, no. CHAIRMAN: Mr. Forrester, if we could just ask you to stay for about another ten minutes; and we'll give you the old high sign, and we will wish you a safe home at that point, okay. Thank you. Mr. Pachman, I think this is what you were looking for. MATT PACHMAN: Thank you Mr. Chairman. I appreciate it, thank you so much. CHAIRMAN: Mr. Pachman, we are going to entertain your presentation, possibly with some reservations based upon what counsel has suggested to us. So if there's some change or something that we construe not to be, we may mention that to you. PAGE 3-SEPTEMBER 20,2001 - --- ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD MATT PACHMAN: Mr. Chairman, if I could guess that, if I understand the nature of this hearing if you might just elaborate on what you did say based upon Town attorney I think it would relevant and important, and only fair that I understand what that was. What I understand the limitations that the Board is looking for. CHAIRMAN: We are not really going to entertain any questions regarding site plan tonight. We're not involved in that issue at this point. We want to understand the application first. Counsel, unfortunately is out of the State. He would have been here with us tonight. We are going to ask you to come back and complete this hearing on the 41h of October with us, if you are available, which is at a Special Meeting. If not, we can make some other provisions. But thought it was going to be The 2nd Of October, but unfortunately we are not available at that time. ROBERT YOUNG: Mr. Chairman, could we possibly address you as an interested party. We are, the numbers here are directly on the other side of the road. We've had very little notice of this. We are trying to organize our thoughts. Organize our actions, and we got notice on the 13th, postmarked certified mail. In light of the events of last week, it was very difficult to contact people. October 2nd is much too early for us. CHAIRMAN: We understand that sir. That doesn't mean we're going conclude it on that night. All that very simply means is that we are going to, we will probably continue from that particular point on. I understand that, and I want you to be aware that, in my particular situation, it takes me sometime to understand exactly what applicants, this is a generic statement, are requesting. Therefore, I like to take it in stages, rather than try to cram it into one specific hearing notice and one specific time. If you have specific concerns regarding this, then you are certainly welcome to voice them. The hearing will remain open. We will accept letters from you or from .any spokesperson from your group. Mr. Pachman, we're ready any time you are. MATT PACHMAN: Mr. Chairman, I'm sorry, but the person that spoke, if I could have their name for the record. ROBERT YOUNG: Robert Young, 62625 C.R. 48. MATT PACHMAN: Now. Mr. Chairman I certainly will proceed tonight and I appreciate the opportunity. The reason why I ask you that, and I appreciate that you gave me that explanation because when you hear our application, I think you will understand that we're not asking this Board to make any determination with respect to the site plan. It's our condition that the site plan is in effect. That's why I'm interested in understanding what your council's conversation with the Board was with respect to it. In any event, I will proceed at this point, and hopefully I can give. CHAIRMAN: You will be able to discuss that with counsel on October 4th. He is not coming back until the latter part of September, so therefore that is the, normally we would try to meet next week but it will be the week after. PAGE 4-SEPTEMBER 20,2001 ' ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD MATT PACHMAN: Well then, Mr. Chairman and Members of the Board, my name is Matt Pachman, Pachman and Pachman, 366 Veteran's Memorial Highway in Commack, New York. This application is an appeal requesting an interpretation reversing the Building Inspector's Notice of Disapproval dated August 13, 2001, which denied the application for a Building Permit for two-family houses under Article 4, Section 142.A of the Town Zoning Code. KACE LI INC is the owner of a 70-acre parcel of land located on the south side of Route 48, near the juncture of Chapel Lane. The property has been owned by KACE or it's predecessors since March 10, 1982, which is approximately 19 1/2 years. On July 11, 1983, the Southold Planning Board approved a Site Plan for Kace to build a condominium development at the subject property known as "Northwind Village". Mr. Chairman, I would like to hand up to the Board copies of the Site Plan, signed by Henry Raynor, as Chairman of the Planning Board on that date. CHAIRMAN: I just want you to know Mr. Pachman, that counsel may resort to return those; I have no idea at this point. We'll accept them at this point, temporarily. MATT PACHMAN: Very good Mr. Chairman. CHAIRMAN: I don't like to load anybody up here, I'm telling you'straightforward. MATT PACHMAN: Well, Mr. Chairman you mentioned something that I really don't understand it, because the very essence of our application here is that, as a matter of law, the building Inspector could not deny this Building Permit because of the approved Site Plan. So when there is a statement that it be on a Site Plan, which is the basis of the application that you've heard or that the court is not going to entertain any questions about the Site Plan. CHAIRMAN: Well, actually there's a little more. We weren't even going to accept any testimony about Site Plans. I'm just telling you what council told me. MATT PACFIMAN: Okay, very good. Pursuant to the Suffolk County Sanitary Code, Chapters 760, no parcel of real estate can be commenced or to be developed until the Suffolk County Department of Health, has approved the proposed water supply and sewage disposal facilities and pursuant to the Town's Zoning Code 85.8 Subdivision G, before a Building Permit can be issued to commence construction of the property Kace had to obtain the approval for the proposed water supply and sewage disposal system from the Suffolk County Department of Health. In 1983, and Mr. Chairman, I'm going into the chronology because it's very important to understand why we say that the Building Inspector, as a matter of law, improperly turned down this Building Permit Application. CHAIRMAN: You're talking about the current August 131. MATT PACHMAN: Absolutely. You can't understand the nature of our belief that the Building Permit Application denial is improper without understanding the history. In 1983 the Trustees of the Village of Greenport acting in their capacity as the Board of • • PAGE 5-SEPTEMBER 20,200 ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD Water Commissioners Wand Seater Cr this Commissioners, administered an exclusive franchise for the services subject or this r' beyond the limits of the Village hi of includedr the This satisfied the re the of Greenport,County which the Health that I just mentioned to requirements of projects obtain the re Suffolk County construction, housing, required approval. M proposed Department of Northwind whereaco project, had to obtainothe sewer development, p Posed buildinge sewer services at that time. in this area such as the and sewer approval approval from Greenport tfor m the On January 10, 1983, Kace applied for for water the Village Board in Project. The Utilities Committeef t to Ghic for water shover services administering this franchise accrued Kace's hpVilla, denied Kace's ferred the matter to the Building Boaz. �'hlee assisted project for water and Kace Village was byapplication on July 18th, 1985y d, and thDecember 30,es 1986,othe readyto the Town of Southold BuildingInspector letter dated iti be issued for this that a Building approval from project and the only Permit is Greenport and I have a copy thingD it needed 30,was 1986 letter and sewer ( Town Building Inspector co of that December this nbmade aoconfirming this. I'm handingthis up dfrom the Greenport fore a partand the record. services to the Board and I ask that On February 24, 1987 Utilitieso Committee of the Village for the project. A Kace again applied to Village Board of T approved Kace's application on and sent 23, 1987 the n to the Village of Trustees. On December 7, 1987 pplication sent. ' g Greenport Trustees fora , Kace again submitted the ta°ri to the failed to rule on Kace's a approval. The Green that time, e railed to unable to obtain application for water Greenport Trustees, at that time, pre- condition, and sewer services. 4 Kacelwas unable to and sewer services for the As a that, pre- Conecommenced obtain a Buildingproject. t Without 1987,7 of New York a an action in the United States District t' On or about against Greenport due to its refusal to Court for the Southern District oay July • 1994, while that Federal elle on Kace's a the from Court action was continuing, application. the parcel was from dmultil the residence, Oneb Southold TownNOS'on d Ml, to HD. February Board re-zoned Court, Shim entered er dl in sFederal ds made Courtn order on and it was so l 6, ered a stipulation and of the Federal Court againof the court. �'uprad p U. thatS. Order of the Board, theCo importance it be F made I hand h a co of part of the record. Mr. Chairman and Members Order to provide sewer t capacity Federal Order was thatMembers other words,sufficient ors beforeacitythin fourGreenporttwas orderedion, in Years pe stipulationexecutionalsoof the atpulatiop, t acknowledges that it had February 6, 2000. The approval dges water capacity at that time, s said that Greenport Buildingetting a vpermit stove ea my thing that was keeping othus the project had the water ad four years untilt was the approval from the this project from four February 6, 2000 toprovide sewer Village iats that time, and the Village he- n, no other requirement, no other hurdle as determinedrnces. Inspector to return the BuildingTherehwas no otherB deadline, Permit. by the Southold Building as ordered byPrior to the expiration of this February Town the Federal Court in that stipulation, to re-zone this 6, 2000 Southoldembdr 4, Board votede drtoe-tontSupremen' in Octoberudg1999 the re- zoning parcel from HD to R80. B g and stated it was volatile of the New York Statewn By judgment dated Court Suffolk County overturned the ra- the purported re-zone was illegal, void and To judgment from of no effect. Law. The Court said that that maythe Supreme Court Suffolk County, I have a co be part of the record. which I am handing of that order by g and I ask that • PAGE 6-SEPTEMBER 20,2001 - ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD CHAIRMAN: Mr. Pachman I just have to ask you to speak a little closer to the mike, because these people are sitting on the other side of the room. MATT PACHMAN: I apologize; I thought I was speaking loud enough. CHAIRMAN: Just pull it a little closer to you. Thank you. MATT PACHMAN: The Town Attorney's office did file a Notice of Appeal with respect to that judgment that I'm referring to from Justice Berler. In a letter dated July 14, 2001, he submitted a stipulation where it formally withdrew that Notice of Appeal. I hand up a copy of that letter of transmittal to the Clerk of the Second Department Appellate Division which had that stipulation. That withdrawal ended that litigation, and thus the property today remains HD. Since that time the applicant has been seeking to get the Suffolk County Water Authority to abide by the terms of the Federal Court stipulation and provide water to the project. As this Board is aware, the Village of Greenport sold the franchise with respect to water to the Suffolk County Water Authority. The Suffolk County Water Authority is a successor, and thus we now have to deal with that entity. Mr. Chairman and Member of the Board, Kace has been caught in the proverbial revolving door. Its Building Permit was subject to and conditioned upon authorization from Greenport to connect to ,its water and sewage system. Again, I emphasize that was the only last remaining pre-condition to obtain the Building Permit. As I noted, Greenport initially denied the application for water and sewer, the applicant had to go to Federal Court. The Federal Court Action was resolved by an order of the Federal Judge saying that the Village and now the Suffolk County Water Authority had until February 2000 to provide water and we're still, at this point, exempted to enforce that stipulation. Southold Town Code Section 100.255B states "All site plans should receive final approval prior to the enactment of this Article shall remain valid for a period of three years from date of such enactment. This period will be given of all governmental approvals had been obtained. Since the Suffolk County Water Authority has not yet issued its approval for water, this period has not been commenced. Again, Mr. Chairman and Members of the Board, the reason why I'm taking this time at this late hour to go in detail through the chronology and to explain the long and detailed history of this project, is because it is essential, Mr. Chairman, to understanding why, at this late date when that was the only pre-condition to obtaining a Building Permit, why it is improper for the denial of the Building Permit now. The only change with respect to this project, since the 1983 site plan approval is that the Zoning classification of the property has changed from light multiple residence to HD. Now, Mr. Chairman, I hand up copies of the pertinent portions of the Southold Zoning Code, the M1 Zoning Code in 1983 and the HD Zoning Code now. I ask that these collectively be made part of the record. BOARD SECRETARY KOWALSKI: (Received (8) Exhibits) This copy (Exhibit 7) is M light, no Ml? Did you mean M light? MATT PACHMAN: It's specifically M1 Zoning. r" PAGE 7-SEPTEMBER 20,2001 -- ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD BOARD SECRETARY KOWALSKI: But this is (a copy of) the M Light that you're submitting? MATT PACHMAN: That's the zoning. BOARD SECRETARY KOWALSKI: So it was not zoned M Light. MATT PACHMAN: It was zoned M Light, Multiple Residence dwelling. BOARD SECRETARY KOWALSKI: Okay, that was different than Ml. MATT PACHMAN: Yes, M Light Multiple Residence. Thank you for that clarification. Also have copies of what I just handed up on the display board to make it easy, for easy reference. Members of the Board the importance is, that as you can see, the language of these two Codes are word for word identical. No building or premises shall be used, and no building or part of the building shall be erected or altered, which is arranged, intended or designed to be used in all or in part for any use except the following. In 1983 it was Multiple Dwellings, now it's two-family dwellings. So in reality, the only change, the only relevant change to the zoning of this parcel is that multiple dwellings, used to be permitted as a matter of right and they were deleted as a matter of right and instead we have two-family dwellings as a matter of right. The applicant has correspondently changed the plan in only that one respect. Instead of developing the structures as approved on the 1983 site plan for multiple residence it's agreed to develop them for two- family residence, as permitted as a matter of right in the HD Zoning District. There is no other change, there is no change to the site plan whatsoever; no change to the site plan whatsoever. The applicant intends to develop this property as you see on the 1983 site plan, it's going to look identical, and it is identical. Kace is in no way responsible for critactive municipal delay, which I just had detailed to you. It's expended substantial money, time and effort, and was, and remains prepared to commence construction of the project. This site plan has been, at all times and continues to be, valid, pursuant.to the express terms of the Southold Town Code. The prior Building Inspector's determination that the Building Permit was issued upon approval by the Suffolk County Water Authority still remains in effect. Mr. Chairman and Members of the Board, the Appellate Division Second Department in the case of Kennedy vs. the ZBA of the Town of North Salem, has ruled that under these circumstances it is arbitrary, capricious and illegal for a subsequent Building Inspector or, for that matter, for this Board to come to any other conclusion and Mr. Chairman, I hand up a copy of that case for your reference. Mr. Chairman I understand that, based upon what you've said, it's the desire of this Board to hold this hearing over to October 4u1. I hope you see why it is important to understand the history of this, to understand why we say that this moot denial by the Building Inspector is arbitrary and capricious. I received at 4:05 today, literally as I was walking out the door, a memo from the Planning Board; and although I was going to address that tonight, I will hold that now, hold those comments over for the next hearing, and I would . certainly be interested in understanding what the Town Attorney or whoever advised you, this Board about listening to testimony concerning the site plan. And, I think it would be important and only fair, Mr. Chairman, that the applicant has an understanding about PAGE 8-SEPTEMBER 20,2001 ` ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD what these supposed ground rules are before we come in here so that there is a level playing field. Because to the degree that we believe that that may not be legally proper. We want to have an opportunity to address it. We filed this application quite some time _ ago. We filed this application initially in December 2000. The Building Inspector said it was denied, multiple family residences longer permitted as matter of right. We amended it for two-family dwellings. I think it only proper that we have an understanding about what anybody advising this Board is saying with respect to this application prior to the next hearing date, so that we may have a full and better opportunity to respond and to not further delay this matter by asking for an adjournment on that day because of information that we're just receiving at that time. CHAIRMAN: I'm not positive I can comment on that tonight. MATT PACHMAN: Mr. Chairman, I'm not asking you to do so. I will say, however, it is my understanding, I would ask, Mr. Chairman, if there was any type of submission or memo or anything that the Town Attorney did supply to the Board to discuss this matter. CHAIRMAN: In reality, I explained to you in the beginning that we thought your application was a little deficient, even without counsel, we allowed you to continue with your not only your chronological order which is certainly helpful to understand. We didn't stop you in any way tonight. MATT PACHMAN: Absolutely, you didn't. CHAIRMAN: We didn't give you the time out sign. We didn't mount any attack towards your presentation. We understand your frustration, we know the applicant very well. I've known Mr. Kontakosta,for many years; in fact I've known him since 1976. Working with 57 attorneys in my present position, there are times when attorneys say certain things, and you abide by those. I don't know what the reasoning was. That's all I can say. MATT PACHMAN: Mr. Chairman, I would just say that if for any reason the Board feels that the application is deficient, I would like to know that, because I would like to have an opportunity to amend that to the Board's satisfaction. The Clerk did request I give an explanation for the Interpretation; I did file what I thought was an adequate explanation to be supplemented, of course, by the Public Hearing that's why we're here tonight. If there is anything further that the Board needs in terms of the application to alleviate anything about what you mentioned to you we would like to know it, because given that the Board has held this matter over I would certainly like to provide the Board with all the necessary documents and information to form a complete record. CHAIRMAN: Do you want to comment on it, Lora? MEMBER COLLINS: I think that the reason why I am and other Members of the Board felt the application, the application placed before us dated 8/23/01 turning into Appeal #5003, it said the Building Inspector has denied our application for the construction of an unspecified number of two-family dwellings on this lot, it said that because we know PAGE 9-SEPTEMBER 20,2001 - - ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD that's what the Building Inspector said, and it said this is an Appeal but there was no indication in the Appeal you gave it tonight, what you were asking. Tonight you said, you want us to interpret the law and reverse the 8/13 Notice because there exists an old site plan. You mentioned the old site plan in your application but you certainly didn't explain, as you have attempted to do tonight, why the existence of a site plan for a different project, in my view it was a different project, in 1983 was relative to your request. Tonight you have elaborated, at length, and I think therefore from the point of view of feeling the application was inadequate, you filled in the blanks. We certainly haven't gotten to the pros and cons, a key one of which is your assertion that the Building Inspector's statement to your client in 1986 that, "the only bar to a Building Permit was getting water and sewer. But that is a binding, that binds all future Building Department actions". I find that quite an extreme statement and I won't go any further. Those are the things we haven't discussed. I do think, and I think the Chairman will agree, that the issue of the indefiniteness or — I don't have the right word - the lack of definitiveness in your appeal as put before us on paper, has been taken care of by your testimony tonight. MATT PACHMAN: I appreciate that you've cleared that up, and we'll resolve that. Thank you. CHAIRMAN: Thank you, which I assumed you would do any way. MEMBER COLLINS: I think that's why we had you come on, even though we had an appeal that probably most of us found didn't tell us what you were looking for. We thought you would come and tell us. MATT PACHMAN: Yes. CHAIRMAN: It would be important on who that Building Inspector was, if it was Victor Lessard, we have a major problem because the gentleman is no longer with us. MATT PACHMAN: Mr. Chairman, the person that signed that 1986 letter was Victor Lessard. CHAIRMAN: So, at this particular time, we will take some brief testimony, we will recess the hearing and we'll go from there. , MEMBER COLLINS: Mr. Chairman, if the testimony is going to be broadly from people who are, broadly speaking, in opposition, I fear that they're going to testify to why they dislike the project, they think the project is unwise; we've seen written input from the gentleman who spoke before,'that he sent to us. I don't think that addresses the issue in front of us. The issue in front of us is whether the existence of a site plan approved in 1983 binds under the reading of the law the Building Department to let them do now, what they want to do now. That's the issue, and frankly, I don't think that these folks without an attorney are in a position to say much about that. CHAIRMAN: We've never restricted anybody from speaking. • PAGE 10-SEPTEMBER 20,2001 -- - ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD MEMBER COLLINS: I understand that, I just wanted to get my two cents in. CHAIRMAN: We'd just like to take some brief statements from you and then we're just going to conclude this for the evening if you don't mind. We'd like you to use the mike if you would sir. The usual question, the proverbial statement that's made is that if you are not available on October 4th, we would certainly like to take a statement from you tonight. But we want you to be available on October 4th, and anything after that. ROBERT YOUNG: I can only speak for myself, but I do believe that all of the parties interested believe there are organizations in the Town of Southold. North Fork Environmental Council is interested in this matter. They have so expressed it. I believe that my letter does not address the issues that were presented tonight. I had no notice about this, the only other notice that I've had is a driveway was cut from the project onto bt the North Road in March of this year and it was stopped, apparently, by some action from ct Vthe Building Department. And redo, as I see it, and not speaking further to our meeting 1i/ K with counsel (inaudible). CHAIRMAN: We urge you to bring all interested parties on October 4th. I hope we get -.---Q this room on October 4th. We may or may not have it. We may all be crammed into the Town Board Room. ROBERT YOUNG: But then in terms of having a representative address this Board, will we have to have a complete brief and presentation at that time, or will we be able to be given a period of time,address the proactive test. CHAIRMAN: We'll make a determination at that time. I assure you that this Board has never, we're just not in a position to not take testimony from a person or people that are not ready to, and_that testimony is not ready to be given. This is still America, and we're waiting for your;t kt a.-.4 - ROBERT YOUNG: As a layman in this area of the law, all I can say to the Board is that there has been a tremendous change since the renovation of the plans that were properties on the North Road. It has become a death trap for,traffic for cars, for pedestrians or cyclists. We've seen close misses every day of our lives getting in and our of our driveways, it's next to impossible and I hope not only this Board, but the applicant will be able to address that problem and other problems in the course of pursuing their project. I certainly recognize that they've owned the property for this period of time and they should have the right to develop it in a way that is consistent with the community and our laws but, at this point in time, the situation is extremely serious for those of us who live there. The traffic condition has become such that we are creating problems, Foxwood, the ferry and developers are being responsible for, but we're bearing the burdens and we're bearing the risks. We certainly hope that this Board can develop some considerations on whatever issues you address. CHAIRMAN: We will certainly try. Thank you. PAGE 11-SEPTEMBER 20,2001 ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD ROBERT YOUNG: Would it be appropriate for the other interested parties to identify themselves for the record or. CHAIRMAN: Let's wait until October 4th, if you don't mind. I just want to go back to the Building Inspector one time. Mr. Forrester, we do have a couple of pertinent questions. We realize you're still here and I think at this time we'll ask you a few if you are able to come on October 4th, we would appreciate it. We want you to think about these questions between now and then. So we'll go with Mrs. Tortora first. MEMBER TORTORA: I just want to jump down to permitted uses in the HD Zone, because I'm not 100% clear on all this. In your Notice of Disapproval it says that proposed project indicates several exact amount unknown two-family dwellings on a single parcel, Code allows only one such structure per lot as a permitted us. I know that's true in the R80, R40, AC, ROHD 1 and 2. In fact that is that fact via, those exact words appear in each of those districts, but it doesn't appear in the HD. ED FORRESTER: Do you want me to respond, or do you want me to wait until the 4th? MEMBER TORTORA: I'm just curious as to why? ED FORRESTER: In a matter of admitting that Section of Code 100-42A, permitted uses. The office saw fit to use as singular, one family dwelling, and two-family dwelling. That is the basis for the disapproval. MEMBER TORTORA: That's true, but if you go to 131A1, the exact language under 9� that which is AC, R80, 120, 200 and 400, the permitted use is one-family, taxed cr dwellings, plural, not to exceed one dwelling on each lot. ,r1P4ED FORRESTER: Yes, I'm familiar with that section; however, I wasn't dealing with that section of the Zoning Code. MEMBER TORTORA: Then there's 131 permitted by Special Exception, 131B 2 it says two-family dwellings not to exceed one such dwelling on each lot. ED FORRESTER: I didn't write it, I just interpreted it. MEMBER TORTORA: That's what I mean. That's why I was curious because the quality. ED FORRESTER: I understand the question. • CHAIRMAN: I mean you surely don't have to give us an answer. Is that it? MEMBER TORTORA: That was the main question. PAGE 12-SEPTEMBER 20.2001 ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD CHAIRMAN: Thank you again. MATT PACHMAN: If I just may make a quick statement to Miss Collins. I just want to point out that you said, that we are asking you to interpret the law and with all due respect, Miss Collins, we're not asking that. We're asking you to use Mr. Forrester's interpretation of the Code as per the colloquy between Mr. Forrester and a Member of the Board. Now you want to make sure that the Board understood that that were what we were asking the Board to do. MEMBER COLLINS: Okay I was working from my notes, listening to you and you said we were asking for an interpretation and a reversal. I think what you wanted to say was you are asking us to reverse his interpretation of the law. MATT PACHMAN: Maybe we are being in semantics, and I don't mean in any way, we were asking for a reversal of Mr. Forrester's determination based upon this Board's interpretation of the Section of the Zoning Code that had been discussed here tonight. I hope that that explains it. If it's not, I will certainly try to explain it further. But that is what we are seeking at this point. CHAIRMAN: Thank you. I just want go down on notice that we are going to set a time of 7:15 p.m. on October 4th. I want to be honest with you; I have a trial that day, so I hope I'm going to be there. I may be late. Mr. Forrester, we thank you. ED FORRESTER: It's a Thursday? '0\ CHAIRMAN: October 4th, it's a Thursday. Thank you, I wish you a safe home, because � I know you're going as far as these nice gentlemen next to you. I'm just going to entertain this question from this nice lady in the back'on my left and we're going to recess the v hearing. Yes, ma'am. Could you just come up and use the mike. I'm sorry to put you on the spot but if I get yelled at from this nice lady sitting to my right here. NANCY FOLEY: My name is Nancy Foley. My only question now is, exactly how many houses are being built. CHAIRMAN: We really haven't gotten to that, and I'm not trying to be, but this is some of the stuff that we are referring to as fill-ins. MATT PACHMAN: Mr. Chairman, it's pursuant to the site plan that's been in effect since 1983. We're not changing the structures on;the site plan in one single respect. So the number is exactly what's shown on the site plan. The amount of dwelling units will be, it's not 108 as mentioned in the letter today, and it's half of that. But the number of structures is the exact number of structures that had been on the site plan since 1983. So it's not an indefinite number, it's the number of structures on that are on there. CHAIRMAN: Thank you. Hearing no further testimony, I make a motion recessing this until 7:15 p.m. on October 4th. PAGE 13-SEPTEMBER 20,200_ ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD SEE MINUTES FOR RESOLUTION * * * ZONING BOARD OF APPEALS TOWN OF SOUTHOLD (631 ) 765-1809 FAX ( 631 ) 765 -9064 FACSIMILE TRANSMITTAL SHEET TO: 4 FROM: / Z � ✓ ZBA Office Staff 765-1809 COMPANY: DATE: 771./-cci i#i,j�i�-U . /1/42/0 / FAX NUMBER: / TOTAL NO.OF PAGES INCLUDING COVER: S -- 7 PHONE NUMBER: SENDER'S REFERENCE NUMBER: RE: p� ® ,g YOUR REFERENCE�� NUMEEE ��/J�) 4 e V , /i/ _zoo/ Li(,.j f2-✓4deJ 0 URGENT 0 FOR REVIEW 0 PLEASE COMMENT 0 PLEASE REPLYO PLEASE RECYCLE NOTES/COMMENTS: 53095 MAIN ROAD P.O. BOX,1179 SOUTHOLD, NY 11971-0959 !. a B �-- APPEALS BOARD MEMI `> ��i�''' 1° FOL ®SUFE®(i►C Southold Town Hall 0 ®� ® 53095 Main Road Gerard R Goehringer, Chairman ��ham Gy James Dinizio,Jr. „,, ,x fes” P.O. Box 1179 Lydia A.Tortora ' ° , Southold,New York 11971-0959 Lora S. Collins 1�� ZBA Fax(631)765-9064 George Horning - 't1�d 0•� 0 Telephone(631) 765-1809 -,,___ SII BOARD OF APPEALS V3- 22 -)1 TOWN OF SOUTHOLD 10/25 A.M.; upd. 10/29 AGENDA utd, .P-o/ REGULAR MEETING THURSDAY, NOVEMBER 15, 2001 5:15 p.m. Call to Order. I. STATE ENVIRONMENTAL QUALITY(SEQRA) REVIEWS/RESOLUTION: A. Type II Declarations: Appl. No. 5030-Fred and Mary Milner. Cabana location. Appl. No. 5028-Ann Lenceski. Deck location. Appl. No. 5020-Bruce and Maureen Campbell. Garage location. Appl. No. 5027-Joseph Bendowski. Location of new garage. Appl. No. 5021 -T. and A. Jordan. Unmerge two lots. Appl. No. 5022-C. Lynch for Jane Bear. Addition setback. Appl. No. 5024-Robert Rutkoski. Pool/yard location. Appl. No. 5029-R. Krudop. Setback of dwelling relocation and garage relocation. Appl. No. 5026-Inland Homes/Kavanagh. Unmerge two lots. Appl. No. 5038-Roger and Leslie Walz. Interpretation to Reverse Building Department determination/nonconforming setbacks for additions. B. Unlisted Actions with Negative (No Environmental Effect) Declaration Appl. No. 5017-First Baptist Church of Cutchogue. Appl. No. 5018-St. Peter's Lutheran Church. Appl. No. 5023-North Fork Country Club. Building location and lot coverage. C. Other/Coordination/Reply Pending (from 10/25 Agenda): Lead Agency Coordination Request from P.B. for ZBA Comments regarding 'Hellenic Hotel/Motel New Construction Project, N/s Main Road, East Marion. Comments requested by 11/15. ce-dd'r"mac sc444'14- �� - Lead Agency Coordination Request from P.B. for ZBA Comments regarding Riverhead Building and Supply, Main Road, Greenport. Q<aJ a r� �+ deo yf2 oma a� � a-fe-t lit U( Page 2 of 5—Akcrida(upd 10/29/01) November 15, 2001 Regular Meeting Southold Town Board of Appeals II. PUBLIC HEARINGS (Please furnish Affidavits of Posting, returned signature cards, etc. at, or before your scheduled hearing.) When possible, written testimony is requested in lieu of extensive oral testimony. Oral testimony is recommended to be limited to issues properly before the Board. 5:15 p.m. Carryover Hearing in the Matter of Appl. No. 4927— KACE LI, INC. This is an Appeal requesting Reversal of the Building Inspector's Notice of Disapproval dated August 13, 2001, which disapproval denied an application for a building permit for two-family dwellings under Article IV, Section 100-42A.2. The reason stated in the Notice of Disapproval is that the proposed project indicates several two-family dwellings on a single parcel, and that the Code allows only one such structure per lot as a permitted use. Zone District: Hamlet-Density (HD). Location of Property: South Side of North Road (a/k/a C.R. 48) (now or formerly referred to as "Northwind Village" site), 500+- feet east of Chapel Lane, Greenport.; Parcel #1000-40-3-1. `7y4) P4Lfn- 6:30 p.m. Appl. No. 4965 — NORMA MILLER. This is a request for a Variance under Article III, Section 100-31A.2, based on the Building Inspector's May 21, 2001 Notice of Disapproval for the reason that renovation of the existing accessory building constitutes a second dwelling use on a lot. Location of Property: 12920 Main Road, East Marion; Parcel 1000-31-14-14. 6:35 p.m. Appl. No. 5030— FRED AND MARY MILNER. This is a request for a Variance under Article IIIA, Section 100-30A.4, based on the Building Inspector's August 9, 2001 Notice of Disapproval which states that the accessory pool house structure is required to be located in the rear yard, and the pool house, as placed, is located in the side yard. Location of Property: 985 White Eagle Drive, Laurel; Parcel 1000-127-9-22. 6:40 p.m. Appl. No. 5028 —ANN LENCESKI. This is a request for a Variance under Section 100-239.4 based on the Building Inspector's August 6, 2001 Notice of Disapproval. Applicant is proposing to construct a deck addition which will be less than seventy—five (75) feet from the bulkhead at 3700 Minnehaha Boulevard, Southold; Parcel1000-87-3-5. 6:45 p.m. Appl. No. 5017 — THE FIRST BAPTIST CHURCH OF CUTCHOGUE. This is a request for a Special Exception under Zoning Code Section 100-316(2) for a Place of Worship and related accessory uses, at 15945 County Road 48 (a/k/a Middle Road), Cutchogue; Parcel 1000-101-1-14.5. s, Page 3 of 5—Agenda(Upd. 1O/29/00, November 15, 2001 Regular Meeting Southold Town Board of Appeals • II. PUBLIC HEARINGS, continued: 7:00 p.m. Appl. No. 5018 — ST. PETER'S LUTHERAN CHURCH. This is a request for a Special Exception under Zoning Code Sections 100-316(2), and 100- 81b(1), for expansion/additions to an existing Place of Worship, at 71305 Main Road (a/k/a Route 25) Greenport; Parcel 1000-45-2-7.1. Zone District: Limited Business. , • 7:10 p.m. Appl. No. 5020 — BRUCE AND MAUREEN CAMPBELL. This is a request for a Variance under Article III, Section 100-33, based on the Building Inspector's August 13, 2001 Notice of Disapproval. Applicants are proposing to construct an accessory garage in a front yard location instead of the required rear yard at 620 Meday Avenue, Mattituck; Parcel 1000-113-10-15.7. 7:15 p.m. Appl. No. 5027 — JOSEPH BENDOWSKI. This is a request for a Variance to construct and replace accessory garage with nonconforming setbacks, based on the Building Inspector's September 26, 2001 Notice of Disapproval under Article XXIV, Section 100-242A for the following reasons: (1) the proposed reconstruction of the accessory garage will increase the degree of nonconformance and.the proposed height of the garage measures greater than 18 feet under Section 100-33A. Location of Property: 3060 Park Avenue, Mattituck; 1000-123-08-19. 7:20 p.m. Appl. No. 5021 - THOMAS P. and ANNETTE JORDAN. This is a request under Code Section 100-26 for a Lot Waiver to Unmerge property shown on the Suffolk County Tax Maps as 1000-79-4-25 from 1000-79-4-26. This request is based on the Building Inspector's August 22, 2001 Notice of Disapproval which states that Lot 25 has merged with an adjacent lot to the north (1000-79-4-26) pursuant to Section 100-25 which lots have been held in common ownership during a period of time after July 1, 1983. Location of Property: 1550 and 1680 Brigantine Drive, Southold, NY. Q. - --..2,4 , _ 7:35 p.m. Appl. No. 5022—CATHERINE LYNCH with Power of Attorney for JANE BEAR. This is a request for a Variance under Article IIIA, Section 100-30A,. based on the Building Inspector's September 4, 2001 Notice of Disapproval which states that the "as built" greenhouse and frame shed addition to dwelling do not meet the minimum 50 ft. rear yard setback requirement. Location of Property: 374 Wampum Way, Southold; Parcel 1000-87-2-37 & 38 (combined).)1a _&f ,? Page 4 of 5—Agenda(upd 1O/29ro1)'' November 15, 2001 Regular Meeting Southold Town Board of Appeals II. PUBLIC HEARINGS, continued: 7:40 p.m. Appl. No. 5024 — ROBERT RUTKOSKI. This is a request for a Variance under Article III, Section 100-33, based on the Building Inspector's September 12, 2001 Notice of Disapproval. Applicant is proposing to construct an in-ground swimming pool in a yard area defined by the Code' as front yard. (The Building Department confirmed that this lot has two front yards and two side yards, and that the Code does not define a rear yard for this parcel based on its frontages.) • Location of Property: 11165 C.R. 48, Mattituck; Parcel 1000-108-1-2. 7:50 p.m. Appl. No. 5023— NORTH FORK COUNTRY CLUB. This is a request for a Variance under Article III, Section 100-31B(7), and Article XXIV, Section 100- 244B, based on the Building Inspector's September 7, 2001 Notice of Disapproval. The reasons stated in the Disapproval is that Building Permit#27135 was issued in error because the building is located at less than 50 feet from the rear lot line, is 96+- feet from the Main Road, and that the building addition exceeds the 20% lot coverage limitation. Location of Property: 300 Linden Avenue (a/k/a Moore's Lane), Cutchogue; Parcel 1000-109-3-8.1 (7.1 and part of 4). Zone District: RO Residential • Office, and R-40 Residential (northwest corner). 4/4-0 s • 8:00 p.m. Appl. No. 5029 — ROBERT KRUDOP. This is a request for a Variance under Article XXIV, Section 100-243A, based on the Building Inspector's September 26, 2001 Notice of Disapproval. Applicant is proposing to move one dwelling to a new location with a side yard setback at less than ten (10) feet, at its closest point, and to relocate an accessory framed garage in a nonconforming location, at 170 Tuthill Lane, Cutchogue; Parcel 1000-96-1-8. The reason for the Disapproval is that a nonconforming building containing a nonconforming residential use in this Light Industrial Zone District, shall not be enlarged, reconstructed, or structurally altered or moved. 8:10 p.m. Appl. No. 5026 — INLAND HOMES, INC. (KAVANAGH) This is a request under Code Section 100-26 for a Lot Waiver to Unmerge property shown on the Suffolk County Tax Maps as 1000-110-3-31 from 1000-110-3-32. This request is based on the Building Inspector's September 24, 2001 Notice of Disapproval which states that Lot 31 has merged with an adjacent lot to the north (1000-110-3-32) pursuant to Section 100-25 which lots have been held in common ownership during a period of time after July 1, 1983. Location of Property: 4400 Pequash Avenue and 95 Midwood Road, Cutchogue, NY. , • • �s Page 5 of 5—Agenda(upd 1O/29/O1) it* November 15, 2001 Regular Meeting Southold Town Board of Appeals II. PUBLIC HEARINGS, continued: 8:30 p.m. ROGER AND LESLIE WALZ. Location n r perty: 2505 Old Orchard Road, East Marion; Parcel 1000-37-6-5: (1) Appl. No. 5038 - This is an Amended Appeal for an Interpretation of the Southold Town Zoning Code, Section 100-242A, requesting a determination that additions and alterations within or over the footprint of existing dwellings with nonconforming setbacks do not create any new nonconformance or increase the degree of nonconformance with regard to the zoning regulations, and Reversal of the Building Inspector's May 2, 2001 Notice of Disapproval. Code Section 100-242A states that: Nothing in this Article shall be deemed to prevent the remodeling, reconstruction or enlargement of a nonconforming building containing a conforming use, provided that such action does not create any new nonconformance or increase the degree of nonconformance with regard to the regulations pertaining to such buildings. (2) Appl. No. 4962 - (Carryover from September hearing calendar). This is an Appeal requesting a Variance under Article IV, Section 100-242A, based on the Building Inspector's May 2, 2001 corrected Notice of Disapproval. The Notice of Disapproval states that the existing structure has a nonconforming setback of three feet from the easterly side lot line and 6.5 feet from the west side line, and as a result, the second-story addition represents an increase in the degree of nonconformity. III. POSSIBLE DELIBERATIONS/DECISIONS: A. Carryovers from prior agendas (if any): Appl. No.4995—E. LEONIAK. Lot Waiver for three`1ots. B. Others deemed appropriate by Board (from tonight's hearing list, II). IV. RESOLUTIONS/UPDATES/OTHER: A. New application reviews for November, December and January. B. Special Meeting Date: November 29, 2001 - 6:45 p.m. C. Resolution to Approve Minutes for October 18, 2001 -d- 1c as-moo!' D. V. EXECUTIVE SESSION (if any). I. nRANSMISSION VERIFICATION REPORT TIME : 11/13/2001 10: 47 DATE,TIME 11/13 10:43 FAX NO./NAME 5432271 DURATION 00:03:06 PAGE(S) 06 RESULT OK MODESTANDARD ECM i� r • \P USI ufr MEMORANDUM TO: Zoning Board of Appeals FROM: E. Forrester DATE: September 20, 2001 RE: Pending Appeal; Kace LI LLC Attached please find a chronology and documents from my file that may be helpful. 14 / 7 i Kace LI LLC Project Chronology(Northwind Village) SCTM# 1000-40-3-1 Rec'd Building Department Nov. 21, 2000; Building permit applications for four multiple dwellings, submitted was partial set of plans for structure, on file in Planning Dept is a site development plan Dated May 1982. Dec. 6, 2000; Notice of disapproval issued,based on limited submission of documents, after Zoning analysis it was determined that the proposed use in that zone required a Special Exception from the Zoning Board of Appeals. No further review was completed pending that decision and the application was disapproved for that reason. July 30, 2001 Upon applicants request a re-review of the Zoning analysis was completed,taking into account the Planning Boards files along with the blueprints previously submitted. A notice of disapproval was issued similar to the one issued'12/6/00 with the additional note of requiring Site Plan approval prior to further review by the Building Department. August 8, 2001 Rec'd letter from Matthew Pachman, on applicants behalf he requested a review of project changing the use to two family dwellings, in response he was informed that, it was determined that several two-family dwellings on that lot would not be permitted pursuant to Code, and if his client wished to appeal he would need to formally re-apply. August 10, 2001 Application for two-family dwellings on parcel received. Notice of disapproval dated August 13, 2001 issued. x' 6117 • ZONING BOARD OF APPEALS TOWN OF SOUTHOLD (631 ) 765-1809 FAX (631 ) 765-9064 FACSIMILE TRANSMITTAL SHEET TO: FROM: anow go9 ZBA Office Staff 765-1809 COMPANY: - i DATE: 1 n2 V ie.� ) 9- a o -O I �`/2/0 PA-) FAX NUMBER: TOTAL NO.OF PAGES INCLUDING COVER: )13 PHONE NUMBER: SENDER'S RE ERENCE NUMBER: RE: •YOUR REFERENCE NUMBER: ace, 0-2to.oi �� �� 0 URGENT 0 FOR REVIEW 0 PLEASE COMMENT D PLEASE REPLYD PLEASE RECYCLE NOTES/COMMENTS: t` 53096 MAIN ROAD P.O. BOX 1179 SOUTHOLD, NY 11971.0959 J TRANSMISSION VERIFICATION REPORT .� TIME : 09/20/2001 16:04 DATE,TIME 09/20 16:02 FAX NO./NAME 5432271 DURATION 00:01: 40 PAGE(S) 04 RESULT OK MODE STANDARD ECM S %)L ,r 4 VA- • ifilenA 4 riti)° q,),0( ,-,__, /LANNING BOARD MEMBERS ��°��®S��FO1�`s ® ` Town Hall, 53095 State Route 25 BENNETT ORLOWSKI,JR. e,• G ` Chairman ��� y�: P.O. Box 1179 WILLIAM J.CREMERS I ® ; Southold, New York 11971-0959 KENNETH L.EDWARDS "A Telephone (631) 765-1938 GEORGERICHARD RITCHIE IECALATHAM, O JR \..4�®�' • ®� ��+, Fax(631) 765-3136 PLANNING BOARD OFFICE i TOWN OF SOUTHOLD ND TO: Gerard P. Goehringer, Chairman,Board of Appeals FROM: Bennett Orlowski, Jr., Chairman RE: KACE Reality,Northwind Village SCTM# 1000-40-3-1 DATE: September 20, 2001 The following is in response to the above matter: The current proposed project for two family homes instead of the 108 condominium units in 27 buildings would constitute a different project than the one that aquired approval by this Board in 1983. • A new site plan application and review would be required for this project. This review would involve a coordinated SEQRA review,review by the Suffolk County Planning Commission, and review by the Suffolk County Department of Health Services in addition to a review of the curb cut by the Suffolk County Department of Public Works. We hope this information is helpful to your Board in its review of this application. • \Ix 11 cep xe I` X `' PLANNING BOARD MEMBERS + SCOTT L. HARRIS ,. � j Supervisor Bennett Orlowski, Jr., Chairman •tet, �s + ® • George Ritchie Latham, Jr. = ®� 1 �t 're° Richard G. Ward �tio Town Hall, 53095 Main 11 """�'� P.O. Box 1179 Mark S. McDonald' Southold, New York 1 lS Kenneth L. Edwards PLANNING BOARD OFFICE Telephone (516) 765-1938 TOWN OF SOUTHOLD Fax (516) 765-1823 May 3, 1990 Emanuel M. Kontokosta KACE Realty Co. 43 West 54th Street New York, New York 10019 Re: Northwind Village Site Plan SCTM # 1000-40-3-1 Dear Mr. Kontokosta: With regard to your correspondence of April 4, 1990, the • Planning Board stands by its letter of March 29, 1990. The minutes of the July 11, 1983 meeting state clearly that " . . .no drainage plans have been placed on the proposed plan and parking relative to the dwellings are not shown. . ." Further, you stated that you would submit that information when you applied for building permits, which you have not yet done. A copy of the minutes is enclosed for your convenience. A careful reading of the March 29th letter will reveal that it did not rescind the 1983 site plan approval, as you imply in your letter. It simply reminds you that certain conditions, as it were, of that approval have not been met. - - -- - The drainage-information--is_-needed-_tQ_nsure stormwater generated on your property after construction is completed, does not flood or erode adjoining property, thereby creating a problem for which the Town, as well as you, would be liable. With regard to your legal action against the Village of Greenport, this Board had no knowledge of said action until you brought it to our attention in your letter. i; • The inquiry from the Village of Greenport was made by a consultant to the Village. The inquiry consisted of a telephone call to ask if the site plan was approved and if that approval was still valid. In order to answer the consultant' s question, the file was reviewed. During that review,it was determined that the site plan was still valid. But, it was also noticed that the conditions, as it were, of approval that were noted in the meeting minutes remained unaddressed. Since it seemed probable that you were preparing to apply for your building permits in the near future, the decision was made to inform you of the outstanding items now, so that your building permit application would not be denied for lack of compliance. It is unfortunate that this extension of courtesy has been misconstrued. i trust this letter will clear up the misunderstanding. Very Truly Yours, Bennett Orlowski, Jr. v tt Chairman cc: Kenneth E. Gordon, Esq. Greg Blass, Village Attorney, Greenport Scott L. Harris, Supervisor - 1 7 ' _ , ._ , (,) -_(/ /1( le ._,_ , . TOWN MEMO TO: ZBA Chairman and Members • FROM: ZBA Clerical Staff DATE: November 27, 2001 SUBJ: September 20, 2001 Hearing Transcript— Kace LI, Inc. • As a follow-up to an inquiry, please note that the attached is an excerpt of the hearings held on September 20, 2001, which includes only pages relative to Application No. 5003 - Kace LI, Inc. Please also note that the "Hearing Transcript" is a separate document from the set of official Minutes. The hearing transcript is included as part of the, application records. Thank you for replacing your previous draft copy with this set. Copies also furnished to: Matthew Pachman, Esq. Anthony B. Tohill, Esq. r" SOUTHOLD TOWN BOARD OF APPEALS TRANSCRIPT OF HEARINGS HELD SEPTEMBER 20, 2001 (Prepared by Paula Quintieri) Copy Printed 11/27/01 11:27 AM Present were: Chairman Goehringer Member Dinizio Member Tortora Member Collins Member Horning • Linda Kowalski, Board Secretary Paula Quintieri, Secretary 10:48 p.m. Appl. No. 5003 —KACE LI, INC. This is an Appeal requesting a Reversal of the Building Inspector's Notice of Disapproval dated August 13, 2001, denying an application for a building permit for two-family dwellings under Article IV, Section 100- 42A.2. The reason stated in the Notice of Disapproval is that the proposed project indicates several two-family dwellings on a single parcel, and that the Code allows only one such structure per lot as a permitted use. Zone District: Hamlet-Density (HD). Location of Property: South Side of North Road (a/k/a/ C.R. 48) (now or formerly referred to as "Northwind Village" site), 500+- feet east of Chapel Lane, Greenport; Parcel#1000-40-3-1. CHAIRMAN GOEHRINGER: Mr. Pachman, we honestly feel that the file is somewhat deficient in some of the information that we would really need to understand this; so we would hope that upon the presentation tonight, we will thoroughly understand this file. If we don't, we're going to ask you to enhance it more after this hearing. I would appreciate that. MATT PACHMAN, ESQ: Very good, Mr. Chairman. Thank you. CHAIRMAN: Mr. Forrester, you've sat back there patiently for the last hour and a half. You have been a wonderful person to this Board, and we ask you to come forward and shed some light on this Notice of Disapproval that you had written. I believe we're discussing the August 13, 2001, and any other notes you'd like to shed. ED FORRESTER: Okay. During this Notice of Disapproval the application was submitted to my department August 10, 2001. The applicant had previously filed for a project of construction to develop this site. This is an amended application as noted on his application. The use let me back up to August 8th. On August 8, 2001, I received a • letter from the applicant's attorney where counsel has requested I review the application as two-family dwellings and not as multiple dwellings, as previously applied for. I responded to the request, in a letterform, requesting a formal application as I and in a Notice of Disapproval, if he wanted to appeal it, I need the application to PAGE 2-SEPTEMBER 20,2001 ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD formally process the Notice of Disapproval. On August 10th, I received the application. I believe the Board has a copy of it. CHAIRMAN: Yes,we do. ED FORRESTER: In applying the Code, code analysis to the project, if you look at the intended use the appropriate Section of Code in the case is 100-44 HD District. That's what the parcel falls within. To propose to erect several two-family dwellings on the lot. The Interpretation of Code as permitted uses, under Permitted Uses 100-42A.2. The permitted use is a two-family dwelling. That is my determination, that a single two- family dwelling was a permitted use, several two-family dwellings were not. A Notice of Disapproval was issued based on that determination, signed on that date. CHAIRMAN: Does the Board have any questions of Mr. Forrester, at this time? MEMBER TORTORA: Not at this time, no. CHAIRMAN: Mr. Forrester, if we could just ask you to stay for about another ten minutes; and we'll give you the old high sign, and we will wish you a safe home at that point, okay. Thank you. Mr. Pachman, I think this is what you were looking for. MATT PACHMAN: Thank you Mr. Chairman. I appreciate it, thank you so much. CHAIRMAN: Mr. Pachman, we are going to entertain your presentation, possibly with some reservations based upon what counsel has suggested to us. So if there's some change or something that we construe not to be, we may mention that to you. MATT PACHMAN: Mr. Chairman, if I could guess that, if I understand the nature of this hearing if you might just elaborate on what you did say based upon Town attorney I think it would relevant and important, and only fair that I understand what that was. What I understand the limitations that the Board is looking for. CHAIRMAN: We are not really going to entertain any questions regarding site plan tonight. We're not involved in that issue at this point. We want to understand the application first. Counsel, unfortunately is out of the State. He would have been here with us tonight. We are going to ask you to come back and complete this hearing on the 4th of October with us, if you are available, which is at a Special Meeting. If not, we can make some other provisions. But thought it was going to be the 2nd of October, but unfortunately we are not available at that time. ROBERT YOUNG: Mr. Chairman, could we possibly address you as an interested party. We are, the numbers here are directly on the other side of the road. We've had very little notice of this. We are trying to organize our thoughts. Organize our actions, and we got notice on the 13th, postmarked certified mail. In light of the events of last week, it was very difficult to contact people. October 2nd is much too early for us. AA rte.._ . •••• ...r... :,'/"_ •.....•••• .... .. - �y y,..... _ .... .....rrrNM �� 55 (l4 �• r f L` ��' ,i Ii !'� 1 ._ BOARD OF HEALTH FORM NO. 1 3 SETS OF PLANS ;;,r•'1 ,' TOWN OF SOUTHOLD SURVEY �' ' ""'� BUILDING DEPARTMENT CHECK TOWN HALL SEPTIC FORM SOUTHOLD, N.Y. 11971 DEC • - TEL: 765-1802 TRUSTEES NOTIFY: CALL Examined , 2Q•... MAIL TO• Approved , .... Permit No. .. Disapproved a/c • (Building Inspector) APPLICATION FOR BUILDING PERMIT November 16 20 Date , 2G. . INSTRUCTIONS a. This application trust be completely filled in by typewriter or in ink and submitted to the Building Inspect( 3 sets of plans, acuate plot plan to scale. Fee according to schedule. b. Plot plan showing location of lot and of buildings on premises, relationship to adjoining premises or public streets or areas, and giving a detailed description of layout of prope'rty must be drawn on the diagram which is part this application. c. The work•'eovered by this application may not be commenced before issuance of Building Permit. d. Upon approval of this application, the Building Inspector will issue a Building Permit to the applicant. Sc permit shall be.kept ca the premises available for inspection throughout the work. e. No building shall be occupied or used in whole or in part for any purpose whatever until a Certificate of Occupancy shall have been granted by the Building Inspector. APPLICATION IS !ERE=MAUI to the Building Department for the issuance of a Building Permit pursuant to the . Building Zone Ordinance of the Tbwn of Southold, Suffolk County, New York, and other applicable Laws, ordinances or Regulations, for the construction of buildings, additions or alterations, or for removal or demolition, as herein described. The applicant agrees to comply with all applicable laws, ordinances, building code, housing code, and regulations, and to admit authorized inspectors on premises and in building for necessary inspections. KACE DEVELOPMENT CORP' (Signature of applicant, or name, if a corporation ....cJ.o..C.,.Kont4kas�a • (Mailing address of applicant) '43 West 54th Street , NYC 10019 State whether applicant is owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or bui General Contractor Name of owner of premises KACE L I L L C (as on the tax roll or latest deed) Iflicant is a $pp corporation, signature of duly authorized officer. This Permit Application is (Name and title of corporate officer) for RrtTLDING No eh in Northwind Village Builders License Na — Plumbers License No. Electricians License No. Other Trade's License.lb. _ 1. Location of land on Which Northwind Village - Approved Site Plar proposed work will be done North Road Greenport House limber Street unlet County Tax Map lb. 1000 Section 0 4 0 Block 3 bet 1 Subdivision Filed Map No. Lot Game) 2. State existing use and occupancy of premises and intended use and occupancy of proposed construction: a. Existing use d occupancyVACANT LAND an b. Intended use and occupancy Multi-family use as per approved site plan 1.1..I.,,,. pa6Ml BUlLUlNI; Demolition OtherWork iuieruh horn $240) 000 (Description) 4. Estimated Costfee _ r (to be paid on filing this application) 5. If dwelling, runner of dwelling units_ f_our (4) two and 1/2 of Number of dwelling units on each floor If garage, ther of cars .t 4 ) four garages two o ra 6. If business, commercial or mixed occupancy, specify nature and extent of each type of use 7. Dimensions of existing structures, if any: Front Rear Depth Height timber of Stories . Dimensions of sate structure with alterations or additions: Front Depth Height Rear Number of Stories 8. Dimensions of entire new construction: Front 921 -8" Rear 92t -8" • 55 ' -6" Height18 ' -6" Depth Number of Stories 1 +attic , 2+attic 9. Size of lot: Front 745 . 88 Rear variesDepth var 1214 ft 10. Date of Purchase 198 2 Naze of 1 owner Owner smith , s a n z o n e II. Zone or use district in which premises are situated M (Old Zoning Resolution) • 12. Does proposed construction violate arty toning law, ordinance or regulation: No 13. Will lot be regraded , regr Yes Will excess fill be removed from premises: x x YES 14. Names of Owner of premises KACE LI LLC Address 4 3 W. 54th St ND2 1 2-582 Qp PhcceName of Architect Kontokosta Assoc . 43 W. 54th St NO.216-158 Address Phone No. ..6.10.0... Name of Contractor KACE Development Address PO Box 67 . Greenport Plhone No 516 =477 15. Is this property withinyy300 feetofa tidal MAY wettl�a�nd? * YES NJ x x x x x x*IF ''23 23' YES, SSCIlfli) TOM1,1USI ES �T MA l •4's 4a1. PLOT DIAGRAM Locate clearly and distinctly all buildings, whether existing or proposed, and indicate all set-back dimensions from property lines. Give street and block number or description according to deed, and shave street names and indicate whether .interior or corner lot. SEE NORTH4I-ND VIELA-GEAPPROVED SITE PLAN July 1 1 , 1983 - • TAM OF Nil YORK, OUNIY OF C. E . Kontokosta for KACEDevelopmentCorp being duly sworn, deposes and says that he is the applicant Nape of individual signing contract) bove named, e is theagent for the contractor (Contractor, agent, corporate officer, etc.) f said owner or owners, and is duly authorized to perlocm or have performed the said work and to make and file this pplication; that all staterents contained in this application are true to the best of his knowledge and belief; and hat the work will be performed in the manner set forth in the application filed therewith. corn to before me this / 020 /�day of/.fdd��1,(l el .:2Oo0 z ' Notary Public .. 4-. 6 . pr/ EMILY HAMILL (Signature of Applic l t) Pres Notary Public.State of New York No,01HA5059984 Qualified in Suffolk Coun Commission Expires May 06 ,r'D 7 ` �, _..n_ „ j ......_...... _ ... ._..,.....,,, L� 4,�,. n f (:; BOARD OF HEALTH • • a FORM NO. I 3 SETS OF PLANS TOWN' OF SOUTHOLD SURVEY • -,'f`' BUILDING DEPARTMENT CHECK `?----- TOWN HALL SEPTIC FORM SOUTHOLD, N.Y. 11971 DEC TEL: 765-1802 TRUSTEES NOTIFY: CALL BamQ11ned �O.••• • MAIT, TO Approved , .... Permit No. __ f _- Disapproved a/c • (Building Inspector) APPLICATION FOR BUILDING PERMIT November 16 20 Date , 2G. . INSTRUCTIONS a. This application mist be completely filled in by typewriter or in ink and submitted to the Building Inspect 3 seta of plans, accurate plot plan to scale. Fee according to schedule. b. Plot plan showing location of`lot and of buildings on premises, relationship to adjoining premises or public streets or areas, and giving a detailed description of layout of property must be drawn on the diagram which is part this application. c. The work covered by this application may not-be cortmenced before iisuance of Building Permit. d. Upon approval of this application, the Building Inspector will issue a Building Permit to the applicant. S permit shall be.kept on the premises available for inspection throughout the work. e. No building shall be occupied or used in whole or in part for any purpose Whatever until a Certificate of Occupancy shall have been granted by the Building Inspector. APPLICATION IS WREST MALLS to the Building Department for the issuance of a Building Permit pursuant to the Building Zooe Ordinance of the Than of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations, for the construction of buildings, additions or alterations, or for removal or demolition, as herein described. The applicant agrees to comply with all applicable laws, ordinances, building code, housing code, and regulations, and to admit authorized inspectors on premises and in building for necessary inspections. • KACE DEVELOPMENT CORP' (Signature of applicant, or name, if a corporatioi • (Mailing address of applicant) 43 West 54th Street , NYC 10019 State whether applicant is owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or bu General Contractor -- f ' Nate of owner of premises K A C E LI L L C (as on the tax roll or latest deed) Iflicant is a app corporation, signature of duly authorized officer. • This Permit Application is (Name and title of corporate officer) for RTTTLDING No Irr in Northwind Village Builders License No. Plumbers License No. • Electricians License No. Other Trade's License.No. 1. Location of land onwhidt Northwind Village - Approved Site Pla proposed work will be done North Road Greenport Muse Number Street • Hamlet County Tmc Map No. 1000 Section 040 Block 3 Lot 1 Subdivision Filed Map No. Lot (Name) 2. State existing use cad occupancy of premises and intended use and occupancy of proposed construction: a. Existing use and occpay VACANT LAND ix b. Intended use and Multi-family use as per approved site plan ,.,..1...,/, atAIBUlLUiN6 Demolition Other Work `u1e1d11cxi (Description) 4. Estimated Cost $240, 000 'fee (to be paid on filing this application) 5. If dwelling, nurber of dwelling units four (4) two and 1 /2 o f Number of dwelling twits on each floor If garage, number of cars ,t 4 ) four garages two 6. If business, canmercial or mixed occupancy, specify nature and extent of each type of use 7. Dimensions of existing structures, if any: Front Rear Depth Height Umber of Stories Dimensions of sane structure with alterations or additions: Front Depth Height Rear Number of Stories 8. Dimensions of entire new construction: Front 92 : -8" 92 ' -8" 55 ' -6" Height 18 ' -6" Rear Dept Nuuber of Stories 1 +attic , 2+a t t i c 9. Size of lot: Front 745 . 88t „f Rear varies Depth war 1214 ft 10. Date of Purchase 1982 Nam of 1 onner Owner smith , s a n z o n e 11. Zone or use district in which premises are situated M (61d Zoning Resolution) 12. Does proposed construction violate any zoning law, ordinance or regulation: No Hy 13. Will lot be regraded Yes Will excess fill be removed from premises: X X YES 14. Names of Owner of premises KACE LI LLC Address 43 W. 54th St X212-582 0 Name of Architect 'Kontokosta Assoc . 43 W. 54th St Phone Zi6.i0.QY Address Phone No. 6.10.0.. Name of Contractor KACE Development Address PO Box 67 . Greenport x,516=477 15. Is this property within 300 feet of a tidal wetland? * YES x x x x x x ''2'32'3* *IF YES, SOMME, TOM Ttakilt.E.S PERMIT MAY BE .,•4 tai. , PLOT DIAGRAM locate clearly and distinctly all buildings, whether existing or proposed, and indicate all set-back dimensions f=rom property lines. Give street and block ncnber or description according to deed, and show street names and indicate whether interior or corner lot. r SEE NORTHdIND VILLAGEAPPROVED SITE PLAN July 11 , 1983 • • TAlE OF NW YORK, -- . UNIT OP Suffolk S C . E . Kontokosta for KACE Development Corp being duly sworn, deposes and says that he is the applicant Name of individual signing contract) Bove named, e is theagent for the contractor (Contractor, agent, corporate officer, etc.) I said owner or crabbers, and is duly authorized to perionn or have performed the said work and to make and file this pplicatioh; that all statements contained in this application are true to the best of his knowledge and belief; and hat the work will be performed in the manner set forth in.the application filed therewith. acro to before to tjs • /f Lt day of,1 41..�1r'.. 2O2,r - Cr (ice'...-../.7. , Notary Public,......... {!.�L.Y. EMILY HAMILL lure of Applicant) Pres Notary Public,State of New York No.01HA5059984 Qpalified in Suffolk Cou.pty Commission Expires May 06 .'4 ' Y�-- 49_ • . . 1.1 i �� . ; � BOARD OF HEALTH i j r . 1 , ,I • FORM NO. I 3 SETS OF PLANS ' ,.AJp,i. -S��',,; , i' i TOWN OF SOUTHOLD SURVEY i BUILDING DEPARTMENT CHECK TOWN. HALL SEPTIC FORM — - SOUTHOLD, N.Y. 1 197 1 DEC _ r ___TEL: 765-1802 TRUSTEES • NOTIFY: CALL rained , 20.... MAIL TO Approved , .... Permit No. • ... Disapproved a/c (Building Inspector) APPLICATION FOR BUILDING PERMIT f November 16 2001 Date , 2C. . . INSTRUCTIONS a. This application must be completely filled in by typewriter or in ink and submitted to the Building Inspector 3 sets of plans, accurate plot plan to scale. Fee according to schedule. b. Plot plan showing location of lot and of buildings on premises, relationship to adjoining premises or public streets or areas, and giving a detailed description of layout of property mist be drawn on the diagram Which is part o this application. c. The work covered by this application may not be commenced before issuance of Building Permit. d. Upon approval of this application, the Building Inspector will issue a Building Permit to the applicant. Sud permit shall be,kept on the premises available for inspection throughout the work. e. No building shall be occupied or used in Whole or in part for any purpose Whatever until a Certificate of Occupancy Shall have been granted by the Building Inspector. APPLICATION IS HAY MADLY to the Building Department for the issuance of a Building Permit. pursuant to the Building Zone Ordinance of the Town of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations, for the construction of buildings, additions or alterations, or for removal or demolition, as herein described. The applicant agrees to comply with all applicable laws, ordinances, building code, housing code, and regulations, and to admit authorized inspectors on premises and in building for necessary inspections. KACE DEVELOPMENT CORP' (Signature of applicant, or name, if a corporation) (Mailing address of applicant) 43 West 54th Street , NYC 10019 State Whether applicant is owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or buil) General Contractor Name of miner of premises KACE L I L L C ow (as on the tax roll or latest deed) Iflicant is a app corporation, signature of duly authorized officer. This Permit Application is (Name and title of corporate officer) - . for RTITL DING No < �� in Northwind Village Builders License No. Plumbers License No. Electricians License No. Other Trade's License No. • 1. Location of land as which Northwind Village - Approved Site Plan proposed work will be done North Road ` Greenport House Number Street Hamlet County Tax Map No. 1000 Section 040 Block 3 at 1 Subdivision Filed Map No. bet (Nave) 2. State existing use and occupancy of premises and intended use and occupancy of proposed construction: a. Existing use and occupancy VACANT LAND b. Intended use and occupancy Multi-family use as per approved site plan ��� 9 BUILDING cuu:cat.hoh l:c�> al Demolition Other Work - - (Description) 4. Estimated Cost $2401000 fee (to be paid on filing this application) 5. if dwelling, number of dwelling units four (4)Maher of dwelling units on each floor two and 1 /2 o f two If garage, timber of cars .t 4 ) four garages 6. If business, camercial or mixed occupancy, specify nature and extent of each type of use 7. Dimensions of existing structures, if any: Front Rear Depth Height &ober of Stories Dimensions of same structure with alterations or additions: Front Rear Depth Height timber of Stories 8. Dimensions of entire new construction: Front 92 ' -8" Rear 92 ' -8" Depth 551 -6" Height 18 ' -6" Number of Stories ...1'attic , 2+attic 9. Size of lot: Front 745 . 88 Rear varies Depth var 1214 ft 10. Date of Purchase 1 982 Nave of Former owner smith , s a n z o n e 11. Zone or use district in which premises are situated M (61d' Zoning Resolution) I 12. Does o sed construction violate a No pr po rry zoning law, ordinance or regulation: 13. Will lot be regraded Y e s Will excess fill be removed from premises: x x YES ro2 1 2-5 8 2 14. Names of Owner of premises KACE L I LLC Address 4 3 W. 54th Stame Kontokosta Assoc . 43 W54th St 2� Q. Name of Architect Address W . Phone No. ..6.10.0.. KACE Development PO Box 67 . Gre=n ort 516=477 Name of Contractor Address p Phone No. .•2.3 2.3.• 15. Is this property within 300 feet of a tidal wetland? * YES NO x x x x x x *IF YES, 9Q1•Iill.D TEIRN 3RDSIEES PERMIT MAY 73E •f f• me. PLOT DIAGRAM Locate clearly and distinctly all buildings, whether existing or proposed, and indicate all set-back dimensions from property lines. Give street and block number or description according to deed, and show street names and indicate whether interior or corner lot. - SEE NORTHIIND VILLAGEAPPROVED SITE PLAN July 11 , 1983 • TAE OF NZJ YORK, Suffolk SS -- WNIY (77? C . E . Kontokosta for KACE Development orpsworn, deposes and being duly , po says that he is the applicant Name of individual signing contract) bove named, e is theagent for the contractor (Contractor, agent, corporate officer, etc.) C said owner or owners, mxl is duly authorized to perform or have performed the said work and to make and file this pplication; that all statements contained in this application are true to the best of his knowledge and belief.; and That the work will be performed in the manner set forth in the application filed therewith. .porn to before me this od day of/F4(/.etelf..ls �� ... / /;. Notary Public .. . ,�vt.� ::•�f l�: I " . :"mow. • EMILY HAMILL (Signature of Applieh . Pres Notary No.01 INew York -HA5059984 Qualified in Suffolk Cou Commission Expires May 06 r..y.. f• •. .Irf-•S 7° !/ t. 'Sf 1 FORM NO: 3 • TOWN OF SOUTHOLD - / BUILDING DEPARTMENT SOUTHOLD,N.Y. AMENDED NOTICE OF DISAPPROVAL DATE; August 13, 2001 TO Kace L.I. LLC C/o Kontokosta 43 W. 54th Street New York N.Y. 10019 Please take notice that your amended application dated August 10, 2001 For permit for Multiple, two family dwellings at Location of property North Road(CR48) Greenport County Tax Map No. 1000 - Section 40 Block 3 Lot 1 Subdivision Filed Map# Lot# Is returned herewith and disapproved on the following grounds proposed dwellings not permitted pursuant to Article IV Section 100-42A.2 which states; In the HD District,no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part, for any use except the following: A. Permitted uses. (2) Two-family dwelling. Proposed project indicates several (exact amount unknown)two family dwellings on a single parcel. Code allows only one such structure per lot as a permitted use. Authorize ignature Z.(/70$/7 n - Fri)r Li Ft#PG t9 20rr I G PACHMAN & PACHMAN, P.G. LI} :t7 L.t1t ATTORNEYS L___. _ __ nee VETT ANS MEMORIAL HIGHWAY BLDG. Pte^ 4 OLD GOMN9?►CK, NEW YORK 117a6 (e31) 040-2200 TELECOPI5R (681) 540-2271 GOUF+sE1. HARVEY 13, gF.suntuER 1ibWA1�Q R. PACI,IMAN MAITIIFtw t. PACHMAN August 8,2001 Ed Forrester,Building Inspector Town of Southold 53095 Main Road Southold,NY 11971 Re: Kace LI,LLC SCTM ff1000-40-3-1 Dear Mr.Forrester. As you may be aware,my firm represents Kace LI,LLC with respect to the above-noted matter. As you will recall,by notice datedDecember 6,2000,(a copy of which is attached for easy reference),you denied the building permit application with respect to the above-referenced site. You,thereafter,bled an amended Notice of Disapproval,dated July 30,2001(a copy of which is also enclosed for easy ). It is my understanding that both reasons for your disapproval related to the issue of multiple dwellings, pursuant to Southold Town.Code Section 100-42(B)(1). I assume you,through inadvertence,ov erlooked o�pJ�r�oyvedls'19s��,��p�provided for Raynor E. cmultiple Chairman of the Southold Planning p dwellings. Not withstanding this approved site plan,please be advised that,in an attempt to bring this long-overdue project to fruition,Kace has agreed,without prejudice,le o build the structures,pursuant to this approved site plan,as two family dwellings, and not as multap Kindly process and issue the building permit at your earliest convenience, Very truly yours, 0 ACP rclii,*f4e. • NIAT1BEW E.PACHMAN MEPljlw enclosures cc:Kace Li,LLC �,� �.I>r1, Mos.1CS.it'N'I'AWN WICONZaeeColtespc z13/1—/ 3 ,I� AOs�FFO�,�Co; . va _ 1 Town Hall,53095 Main Road Fax Fax(631)765-1823 11 P.O.Box 1179 `. 4, 0*.0 Telephone(631)765-1802 Southold,New York 11971-0959 -_�v,( 4. -0,0•i BUILDING DEPARTMENT TOWN OF SOUTHOLD August 9, 2001 Pachman & Pachman P.C. 366 Veterans Memorial Highway Commack N.Y. 11725 Attn; Matthew Pachman Re; Kace LI, LLC SCTM# 1000-40-3-1 Dear Mr. Pachman, In response to your letter, dated August 8, 2001, this office cannot process the application in question as two family dwellings. Town Code Article IV Section 100-42A lists the permitted uses in this HD district. Listed is a two family dwelling, it is my understanding that your client proposes several two family dwellings on this parcel. It is my determination that more than one two family dwelling is not permitted, nor are they permitted by special exception.. Should your client wish to appeal this determination an application for this project should be presented for disapproval. xS' cerely, ek,--J- 3-(x...1/4,L.4.4LI7C-,,,._____ Edward Forrester Director of Code Enforcement 1 J ZONING BOARD OF APPEALS TOWN OF SOUTHOLD:NEW YORK In the Matter of the Application of AFFIDAVIT • kDC,e LLQ- OF (Name of Applicants) MAILINGS CTM Parcel #1000- COUNTY OF SUFFOLK) STATE OF NEW YORK) I, residing at , New York, being duly sworn, depose and say that: , On the /Z41day of &p�-- 1236-4 200!, I personally mailed at the United States Post Office in o --P , New York, by CERTIFIED MAIL, RETURN RECEIPT REQUESTED, a true copy of the attached Legal Notice in prepaid envelopes addressed to current owners shown on the current assessment roll verified from the official records on file with the (y'Assessors, or ( ) County. Real Property OfficevT/06,p, for every property which abuts and is across a public or private street, or vehicular right-of- way of record, surrounding the applicant's prop (Signa • Sworn to before me this al)day of G3 . t , 200 r DEBBIE RAYNOR, /, =� Public,State of New Yotfil ( otary Publi , - No.4928002 Qualifled in Suffolk County Commission Expires April 25,0 PLEASE list, on the back of this Affidavit or on a sheet of paper, the lot numbers next to the owner names and addresses for which notices were mailed. Thank you. . . . ZONING BOARD OF APPEALS -• A TOWN OF SOUTHOLD:NEW YORK In the Matter of the Application of AFFIDAVIT kO L L, LL- OF SIGN (Name of Applicant) POSTING Regarding Posting of Sign upon Applicant's Land Identified as 1000 LLD -3 - 1 - ------- --x COUNTY OF SUFFOLK) STATE OF NEW YORK) I - / ;7/7V 'o5 esidin 7,63' r 41 / P g at �� 1,37#64.p , New York, being duly sworn, depose and say that: On the /2 day of c5 /:-77--- , 200/, I personally placed the Town's official Poster, with the date of hearing and nature of my application noted thereon, securely upon my property, located ten (10) feet or closer from the street or right-of-way (driveway entrance) -facing the street or facing each street or right-of-way entrance;*and that I hereby confirm that the Poster has remained i place for seven d-ys prior to the date of the subject hearing date, whi :lrin• .. - -yaw. n too be .SeP7� Zo L co 7, � /, Mig z:� j' �'• Sworn to before me this ,aa day of 0060—, 200{ . 41111k4r00 otii DEBBIE RAYNOR (Notary Public Notary Public,State of New York No.4928002 Qualified in Suffolk County Commission Expires April 25 � *near the entrance or driveway entrance of my property, as the area most visible to passersby. w R. 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NEW'YURI(', ' in P �Sr°� UNIT IU: 0971 ' Ce ified Feer 2.10 \ . I-9 Return R�peipt'I 1 2 2 a Postmark D (Endorsement equired) t Here 0 Restarted Deliv yam.--". yt y! Clerk; KKOORO (Endorsement Req ) O Total Postage&Fees 09/12/01 rrl Sent To • 5�GEz_t (_Lc H Street,Apt No.; L71 C] or PC Box No. 1- 3 b,), ,/ cil-- Iti City,State,ZIP+4 /,/ YC / o--O /q 3 =t r Irtst(Noions) Y z • \b //) . u/od 6u//.yuo3 \ ------_ b'_11 GN d 7 S L ft' • _■ al ,X / ;Jr sr ~ � ,s` \ . �J+j , / 88 s c t { ..-4- -.. /�,v= 1� 4'$4*****�•�. Dojo � 444 die4ttinla le,o0"Arm, , \ . �L�� / illi . t y/// 1 p f' ! moi, /{�!r. , i. ♦ ? > • �� .�J .4110 ttii `�.q ,4,/ • ♦♦ ♦�• 4. {fir 08-� _" `.'b. alk Illiglitillir , . r..-‘ab .$74114:,,•,•,:-. f•�`� ,•�wi.,,trvi*, i'P i1 •.ter _ p 7 �i t �e r`\Jj"4V' .'/'A/ 444 ( A `fir '........291327iO N r 5 �, 41444 A r.,. , _____ 3/47:".-4-•.::/p,,,,,, -,, v / ill 411.1 .1...__________. 7.-----tid"....... --a. A1444s 4 .,.. -,%.4s4,/ .4.. Nagler 111114P,111 iiizzo •. W./,./,ttt-e.N • a Of p OpOb �// �Itt�I�a 8 E a w iti_ivt.it s ®H� ` J.4.4 . • 1.1.4''' � l-yrlissi_. I ti ._.� -�T�` a epi le I ZAN....... impitiNnlui ..girl 11110 I PRI MN . 1 1 1 rr.�r Otr- :.9aj yi�r / •. :aft, - �r•.% •• igi- 1 •l� • ,• NOTICE OF PUBLIC HEARING SOUTHOLD TOWN BOARD OF APPEALS THURSDAY, SEPTEMBER 20, 2001 NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and Chapter 100 (Zoning), Code of the Town of Southold, the following application will be heard at a public hearing by the SOUTHOLD TOWN BOARD OF APPEALS at the Town Hall, 53095 Main Road, Southold, New York 11971, on THURSDAY, SEPTEMBER 20, 2001, at the time noted below (or as soon thereafter as possible): 4248:45 p.m. Appl. No. KACE LI, INC. This is an Appeal requesting a Reversal of the Building Inspector's Notice of Disapproval dated August 13, 2001, denying an application for a building permit for two-family dwellings under Article IV, Section 100-42A.2. The reason stated in the Notice of Disapproval is that the proposed project indicates several two-family dwellings on a single parcel, and, that the Code allows only one such structure per lot as a permitted use. Zone District: Hamlet-Density (HD). Location of Property: South Side of North Road (a/k/a C.R. 48) (now or formerly referred to as "Northwind Village" site), 500+-feet east of Chapel Lane, Greenport.; Parcel #1000-40-3-1. The Board of Appeals will hear all persons, or their representative, desiring to be heard at the hearing, or desiring to submit written statements before the conclusion of the above hearing. This hearing will not start earlier than designated. Files are available for review during regular Town Hall business hours (8-4 p.m.). If you have questions, please do not hesitate to call (631) 765-1809. Dated: August 23, 2001. GERARD P. GOEHRINGER, CHAIRMAN SOUTHOLD TOWN BOARD OF APPEALS Town Hall 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 KACE LI , INC . INTERPRETATION 100-42A . 2 TWO- FAMILY DWELLINGS AT 1000-40- 3- 1 THURS , SEPT . 20t"-8 : 45 PM It Kowalski, Linda From: Kowalski, Linda Sent: Friday, August 31 , 2001 12:14 PM To: Kalin, Carol; Kassner, Bob Cc: Scopaz,,Valerie Subject: Joint Reviews between PB and ZBA• Hi. The legal notice for Sept. 20th ZBA hearings was forwarded; the files that the PB may want to send information on appear to be: Subdivisions/Unmerge Waivers/Other: Barbara J. Martin 55-5-15 Peter and Val Leoniak 98-1-17 Briarcliff Sod. 85-3-12.1, 12.2; 97-10-1 Kace LI, Inc. 40-3-1. • Please feel free to send comments on any pending applications. Carol or Bob, please feel free to copy documents of interest from ZBA files at any time if needed.Thank you. Wishing you all a great Labor Day weekend ahead! Jerry Goehringer ZBA Chairman via ZBA staff email. Kowalski, Linda From: Kowalski, Linda Sent: Friday, August 31 , 2001 12:08 PM To:: Yakaboski, Greg; Kassner, Bob; Kalin, Carol; Verity, Mike; Spiro, Melissa; -Doroski, Melanie - Subject: ZBA Hearings for Sept 20th For your info, Thank you. ET'a LN Combined.doc 1 02/6- - d / ,,6")c- qa? 1� p t # ,\e" 07/00101w- LNGBOARD OF APPEALS �� N � TOWN OF SOUTHOLD X In the Matter of the Application of Appeal No. 5003 KACE LI, LLC AFFIDAVIT X STATE OF NEW YORK ) ss . . COUNTY OF SUFFOLK ) LEE E. KOPPELMAN, being duly sworn, deposes and says : 1 . I am the Executive Director of the Long Island 3 , Regional Planning Board and a Leading Professor of Political Science and Director of the Center For Regional Policy Studies at the State University of New York (SUNY) at Stony Brook. A copy of my curriculum vitae is attached hereto as EXHIBIT "A". 2 . At the request of the applicant, KACE LI, LLC (KACE) , I have reviewed its application pending before the Southold Zoning Board of Appeals (ZBA) and the affidavit of David J. S . Emilita (Emilita) submitted in opposition thereto. A. 3 . This application is an appeal requesting an interpretation reversing the Southold Town (Southold) Building Inspector' s (Building Inspector) Notice of Disapproval, dated August 13, 2001, denying an application for a building permit for construction of two-family dwellings under Southold Code (Code) Article IV, Section 100-42 (A) . (A copy of the Notice of 1' Disapproval-is attached as EXHIBIT "B". ) The sole reason stated in the Notice of Disapproval is that the project proposes several two- family dwellings on the parcel which is the subject of this application (the subject parcel) , and that the Code allegedly allows only one such structure per parcel as a permitted use in the Hamlet Density (HD) zoning district. 4 . I am advised that KACE owns the subject parcel, which consists of more than 17 acres of vacant land located on the south side of Route 48 near the juncture of Chapel Lane within the Town of Southold. The subject parcel is identified on the Suffolk County Tax Map as District 1000; Section 040; Block 3; Lot 1 . 5 . I am also advised that, from approximately 1975 to approximately 1989, the zoning classification of the subject parcel was Light Multiple Residence (LMR) and, thereafter, the zoning classification was changed to HD. The subject parcel has been owned by KACE or its predecessor since approximately March 10, 1982 . 6. On or about the 11th day of July 1983, the Southold Planning Board (Planning Board) approved a site plan (the 1983 site plan) for KACE to build a residential development at the subject parcel to be known as North Wind Village (the Project) . (A copy of the approval letter is attached hereto as EXHIBIT "C". ) 7 . Thereafter, by letter dated December 30, 1986, KACE was informed by the Building Inspector that a building permit to 2 commence construction of the Project had been approved, but it could not be issued until KACE received water and sewage service from the Village of Greenport . (A copy of the letter is attached hereto as EXHIBIT "D". ) 8 . Attached hereto as EXHIBITS "E" and "F" respectively are copies of Code §100-40 (listing the permitted uses in the old LMR district) and Code §100-42 (listing the corresponding permitted uses in the present HD district) . As can be seen, §§ 100-40 (A) and 100-42 (A) are identical, word-for-word, except that multiple dwellings were deleted as a permitted use, reclassified as a conditionally permitted use, subject to issuance of a special exception permit by the ZBA, and replaced as a permitted use by two-family dwellings . ' 9 . I am also advised that KACE has correspondingly changed the 1983 site plan in only one respect. Instead of developing the structures for multiple residences, it has agreed to develop them for two family dwellings, as permitted as a matter of right in the HD zoning district. B. 10 . Emilita' s objections to the application can be divided into six sections : (1) the 1983 site plan is no longer Attached hereto as EXHIBIT "G" is the pertinent portion of Code §100- 13, which defines a two-family dwelling as "A detached building containing two dwelling units only" and a multiple dwelling as "A building or portion thereof containing three or more dwelling units." 3 A valid (9[9 5-8) 2; (2) more than one one-family or two-family dwellings are considered "multiple dwellings" under the Code (119) ; (3) one must read Code §100-42 (A) (2) in the context of the entire Code (110) ; (4) the proper interpretation of the Code as determined by the Planning Board in 1983 and the Building Inspector in 1986, and as advanced by KACE in this application would "by a corollary reasoning process" (110) require that "on a mere application for a building permit one would be allowed more than one two-family dwelling" (110) without reference to the: (i) dimensional requirements of the Code (9I10 (A-C) ) ; (ii) Code §100-250 (the site plan review section) (9[10 (D-F) ) ; and (iii) without consideration of the availability of public water or public sewer (9110 (G) ) ; (5) this proper interpretation of the Code would "read Section 100- 42 (B) out of the Code . . . . " (111) ; and (6) the legislative intent supports the Building Inspector' s interpretation as contained in the Notice of Disapproval (111-14) . 11 . Each of these points will be addressed in seriatim; the following analysis is premised upon my many years of experience in the field of zoning and planning. (1) 12 . The Building Inspector has listed only one basis for his Notice of Disapproval. 2 References to the designation "9- " refer to the paragraphs in Emilita' s affidavit. 4 ' 1 7 fl 1 13 . Thus, the limited, narrow and focused issue presently before the ZBA is whether the Notice of Disapproval, based solely on the use of the buildings as two-family dwellings, should be overturned. 14 . Any other issue, such as the validity of the 1983 site plan, is, in my opinion, beyond the scope of this application and, at this time, beyond the ZBA' s jurisdiction. l_ 15 . It is a plainly erroneous interpretation of the Code to argue that two-family dwellings are considered multiple dwellings under the Code. As previously detailed, multiple dwellings are defined as "buildings with three , (3) or more dwellings units"; in contrast KACE has proposed to build two-family dwellings . 16 . Upon closer scrutiny, the reason for Emilita' s attempt at statutory alchemy becomes clear. Without this, under his theory KACE could build only one two-family house, but many multiple dwelling units (which listed as a conditionally permitted use, actually constitutes a legislative finding that such dwellings are in harmony with the community' s general zoning plan and will not adversely affect the neighborhood) .3 3 This is exactly the position taken by the Building Inspector as confirmed in his letter to KACE dated August 9, 2001 (a copy of which is attached as EXHIBIT "H") . 5 '1 1 T t (3) 17 . Certainly, one must read Code §100-42 (A) (2) in the context of the entire Code. Unfortunately, it is this very analysis which, in my considered opinion, further highlights the flaw in Emilita' s analysis . 18 . ' First, in Code §100-31 (A) (1) , each of Southold' s other residential zoning districts (A-C, R-80, R-120, R-200, and R- 400) list " . . . one family detached dwellings, not to exceed one dwelling on each lot" as a permitted use (emphasis added) . (A copy of §100 (31) (A) is attached as EXHIBIT "I") . 19. Thus, the Code employs clear, consistent and unambiguous language when it limits residential dwellings to one per parcel . In stark contrast, there is no such limiting language in §100-42 (A) (2) . 20 . I believe this is the very same conclusion reached by the Planning Board in 1983, and the Building Inspector in 1986, when the Project was approved subject only to water and sewer service. 21 . Second, Code §100-13 (A) reads, in pertinent part, "word usage. . . the singular number includes the plural and the plural, the singular. . . . " (A copy of the pertinent part of this Section is attached as EXHIBIT "J". ) 22 . Thus, when one rationally and objectively reads the entire Code, the strained interpretation proffered by the objectors 6 x � z • t collapses . (4). 23 . It is my understanding that KACE' s site plan complies with all of the bulk and dimensional requirements as contained in the Code as it existed in 1983, and as it presently reads . For example, at acre density, KACE could construct 34 buildings; the site plan proposes only 27 buildings . Furthermore, KACE has never sought issuance of a building permit prior to the availability of public water and sewer, or without site plan approval, and the proper interpretation of the Code would leave these requirements intact and unaffected. This argument is nothing more than a "red herring. " (5) 24 . It is another attempt to contrivance out claim that the proper interpretation of the Code would read §100-42 (B) out of the Code. KACE has never made such a claim, and no such interpretation is before this Board. Multiple dwellings would remain subject to issuance of a special exception permit from the ZBA. (6) 25 . Although it is my understanding that one should not seek to explore the intentions of the legislative body if the Code is, as here, unambiguous, the legislative intent is obvious : one- family or two-family dwellings which meet the other Code 7 02/27/02 09:36 N0.045 5110 x it 11 lit requirements (such as, for example, the bulk and dimensional I . requirements, public water and sewer connection, and site plan approval if applicable) are permitted because they do not present the land use concerns that that unpermitted or conditional uses pose. Again, under Emilita' s illogical interpretation multiple dwellings would be conditionally permitted on the subject parcel, but two-family- dwellings would "not . Simply stated, there is nothing uncertain, ambiguous or accidental about the language in §100-42 (A) . 1 WHEREFORE, the relief requested by the applicant should be granted in my opinion. ;?;‘..e.., _ f , LEE E. KOPPELMAN Sworn to before me on this 27' day of February 2002 l/ t;/ LINDA A.r�FE!FF6l� ii Notary Public,State of New York No.4766726 0 Notary P 1iC Qualified in Suffolk County - Commission`empires August 3L — \Data\CLIENTS\KONTOKOS\Kace\ZSA\Koppelman.aff.final.wpd - t 8 I " _ I LEE E.KOPPELMAN • EDUCATION Undergraduate degree,City College of New York,School of Engineering Master of Science(Planning),Pratt Institute,Graduate School of Architecture Doctorate(Public Administration),New York University,Graduate School of Public Administration LICENSES Registered Landscape Architect,State of New York Licensed Professional Planner,State of New Jersey PRACTICE Private consulting practice in site planning and landscape architecture, 1950 to 1960. _ Director of Planning,Suffolk County Planning Department, 1960 to 1988. Executive Director,Long Island Regional Planning Board, 1965 to present. Leading Professor of Political Science and Director,Center for Regional Policy Studies, SUNY at Stony Brook, 1988 to present. Professor of Planning at the State University of New York at Stony Brook, 1967 to 1988. Adjunct Professor, Syracuse University Graduate School of Environmental Sciences, 1976 to 1983. Consultant,United States Department of Housing and Urban Development, 1972 to 1978. Appointed(by Secretary of Commerce,Frederick B.Dent)to the Coastal Zone ManagementAdvisoryCommittee, 1973 to 1975. Appointed(by lieutenant General W. C. Gnibble,Jr.,U.S.Army Corps of Engineers)to the National Shoreline Erosion Advisory Panel, 1974 to 1981. Appointed(by Governor Hugh Carey) as a Director of the New York State Urban Development-Corporation, 1978 to 1980.- Consultant,United Nations on Land Use and Coastal Zone Planning. Executive Director,The Bi-County Temporary Commission for Tax Relief on Long Island, 1991. MAJOR RESEARCH Project Director,.1.5 million dollar comprehensive regional development planning project(Section, 701), from U.S. Department of Housing and Urban Development, January 1965 through August 1970. This program produced the first housing element in 1967. The two-volume research was entitled'Residential Market Analysis." The final report,'Better Housing for Better Communities," was distributed nationally by H.U.D.in 1967, and served as the prototype for the 1968 amendment to the Housing Act requiting all future 701 programs to include a housing element. Project Director,$467,000 program for the Office of Technology and Research,U.S.Department of Housing and Urban Development for the development of a methodology and coastal zone manager's handbook relating coastal zone planning and management, 1974-1976. LEE E.KOPPELMAN• Major Research cont'd - - Project Director,5.2 million dollar comprehensive areawide waste treatment management planning project (Section 208),from U.S. Environmental Protection Agency,January 1975 through March 1978. This project dealt specifically with urban runoff as it impacts on coastal zones. Long Island is one of the major coastal zones in the United States,with related involvements in outer continental shelf oil exploration, marine transportation,national fisheries, etc., and continues to maintain a strong governmental and planning involvement in coastal zone management. Project Director,1.75 million dollars. This project produced a regional coastal zone management planning program (Office of Coastal Zone Management, U.S. Department of Commerce), 1976 through 1980. Project Director,4.2 million dollar continuing 208 planning program,producing"The Long Island Segment of the Nationwide Urban Runoff Program",May 1979 through December 1982. This program provided for the further investigation of the source,type,and fate of pollutants in runoff on Long Island,and an evaluation,of the changes in runoff quality;that is,the reduction in pollutant loadings that could be achieved through the adoption of selected best management practices. This program also produced a'Nonpoint Source Management Handbook'which identified the cause- effect relationships and provided the best available guidance for use by public officials,developers and residents concerned with the protection of ground and surface water by existing problems and needed controls for nonpoint sources of contamination. Project Director, "Hurricane Damage Mitigation Plan for the South Shore of Nassau an Suffolk Counties,N.Y.",$130,000 from the Federal Emergency Management Agency,Region II,to develop a plan which,if implemented,would minimize the loss of life and property in.flood prone areas by providing a set of guidelines for development and post-storm redevelopment employing the techniques of Mood plain management,October 1982 through December 1984. Project Director, USEPA Section 205(j) Grant to develop and initiate implementation of comprehensive groundwater protection programs in Critical Recharge Areas. $120,000 from January 1984 through present. Project Director,$2,307,802 from New York State Energy Research and Development Authority to characterize ash from waste management facilities and to investigate ash management options. 1987 through present. Project Director,NYS ECON Art. 55 Grant to study the remaining seven Critical Recharge Areas. $300,000 from 1987 through present. - Project Director, Water Quality and Environmental Resource Protection in Great South Bay. $240,000 from New York State Department of State,June 1988 through September 1989. Project Director, $40,000 from Mt. Sinai and Port Jefferson School Districts to plan for future relationship between the two districts. April 1987 through December 1988. 2 • I LEE E.KOPPELMAN Major Research coned Project Director,$60,000 from.New York State Education Department to develop a computer model for Educational Resources Utilization and Scholastic Outcome. July 1987 through September 1988. Project Director,$70,000 grant from U.S.Department of Defense to undertake planning related to community impacts associated with the cancellation of the T-46 program and the closure of the Fairchild plant. August 1987 through September 1988. Project Director,$80,000 from New York State Urban Development Corporation to conduct a labor force analysis of the Nassau-Suffolk region. January 1989 through December 1990. Project Director, $40,000 from New York State Urban Development corporation to conduct a tourism marketing survey for the Nassau-Suffolk region. July 1989 through June 1990. Project Director, $90,000 from the Suffolk County Department of Social Services to conduct a productivity and performance analysis of the department. February 1989 through December 1989. Project Director,$70,000 from the New York State Urban Development Corporation to determine the dependent care needs of the Long Island workforce. July 1990 through June 1991. Executive Director,The Bi-County Temporary State Commission for Tax Relief on Long Island,$250,000,New York State Legislature,April 1991 to May 1993. Project Director,$486,000 from the Federal Aviation Administration,to carry out a Feasibility Study for the use of Calverton Airport for commercial freight operations. Project Director,$97,095 from the Long Island Lighting Company to identify low-income consumers on Long Island for participation in L1LCO's energy packaging program. Project Director, $200,000 from the Long Island Rail Road for a journey-to-work analysis on the pattern of worktrips front Nassau and Suffolk to New York City as well as reverse commutation and an analysis of HUB development opportunities. Project Director, $100,000 NYS Secretary of State. Land use segment of the Long Island Sound Study. Project Director,$39,095. A budget analysis for the Office of the Mayor,Village of Freeport. Project Director- an in-depth analysis and detailed report on the economic importance of Stony Brook University to the Long Island regional economy and the broader New York State region. " Project Director,$158,875 from the Long Island Lighting Company-"Satisfying the Requirements of the Clean Air Act and Preserving the Long Island Environment by Encouraging the Use of Alternative Fuel Vehicles." Project Director,$100,000 from the New York State Department of Transportation to carry out a compressed work week/telecommuting demonstration program for the County of Suffolkand SUNY at Stony Brook. 3 LEE E.KOPPELMAN ( t Major Research coned AUTHORSHIP ACTIVITIES Books Koppelrna n,L,and J.DeChiara, 1968. PIanning Design Criteria. Reinhold Publishing Corporation. 386 pp. 0974. A Methodology to Achieve the Integration of Coastal Zone Science and Re•ional Planning. Praeger Publishers. 116 pp. _,and J.DeChiara, 1974. Housing: Planning and Design. Prentice Hall. 500 pp. ,and J.DeChiara, 1975. Urban Planning and Design Criteria,2nd Edition.Van Nostrand. 646 pp. P.Weyl,G. Gross and D.Davies, 1976. The Urban Sea:Long Island Sound. Praeger Publishers. 225 pp. ,and J.DeChiara, 1978. Site Planning Ctiteria. McGraw Hill. 350 pp. et al., 1979. Long Island Comprehensive WasteTreatment Management Plan, Volumes 1 and 2. Long Island Regional Planning Board. 607 pp. ,and J.DeChiara, 1981. Urian Planning and Design Criteria,3rd Edition. Van Nostrand. 700 pp. _, and J.DeChiara, 1982. Tune Saver Standards for Site Planning. McGraw Hill. 700 pp. et al., 1982, Long Island Segment of the Nationwide Urban Runoff Program. Long Island Regional Planning Board. 238 pp. I.R.Schubel,et al. 1991. Great South Bay. StateUniversity Press. 200 pp. ,A.Kunz,E.Tanenbaum,D.Davies, 1992. Long Island Comprehensive Special Groundwater Protection Areas Plan. Long Island Regional Planning Board. 600 pp. - A.Kunz,F.Rosenberg,S.Forman. Financing Government on Lon Is{�land. NYS Temporary Commission for Tax Relief on Long Island. 1992. 196 pp. , A. Kunz,F. Rosenberg, S.Forman. Financing Government on Long Island Woking Papez Volume 1. NYS Temporary Commission for Tax Relief on Long Island.Match 1993. 408 pp. - A.Kunz,F.Rosenberg,S.Forman. Financing Government on Long Island-Working Paper Volume 2. NYS Temporary Commission for Tax Relief on Long Island. March 1993. 338 pp. 4 ' LEE E.KOPPELMAN Authorship Activities cont'd Koppelman,Lee E., A.Kunz,P. Kamer,D.Davies,T.Junor, 1993. Airport Joint Use Feasiy Study:Ca1verton Airport. Long Island Regional Planning Board. 248 pp. Editorial Editorial Board of the Journal of Socio-Economic Planning Sciences;and the Journal of the American Institute of Planners. - Governmental Reports and Monographs The following major reports were printed and released by the Suffolk County Department of Planning, Lee E.Koppelman,Director. 1960. People and Parks. 1962. Sys of PlanninR in Suffolk Counter,. (Paper delivered at Governor's Briefing held at the State University Campus,Stony Brook,N.Y.,July 17, 1962.) Printed in Pro cress Report, 1962. 1962. Population. 1962. Economic Base. 1962. seed anal_Feasibility forCounty Park Facilities. 1962. L kcal Government-An Arxal�sis. 1962. Existing Land Use. 1964. Special Report-New York State Route 25A-Town of Smithtown. 1964. ,social Pninw Council. 1964. bleed and Feasibility for a Mapping_Proaram in Suffolk County. 1964. Plannirl for Open Space in Suffolk Counts►. 1965. Park and Ride. 1966. Hauuvauge-A Comprehensive Master Plan. 1980. BousiDg_Report. 5 LEE E.KOPPELMAN Governmental Reports and Monographs cont'd 1980. Open Space Policy. 1980. Impact of Proposed Peconic County. ' 1981. Phase 11-Farmland Preservation Plan. 1981. Priorities Cotnittee Report. 1983. A for ' ' tin the vir tat Im acts of Development in the limp_ Mile Harbor Watershed. 1985. Analvsts of Dredging&Spoil Disposal Activity Conducted b�y Suffolk County. 1986. Hauppauge IndustrialvAnalysis. 1986. Town of Shelter Island Plsiznin�Environnr�ental Investi a�hons and Analysis. 1986. Lake Ronkonkoma-Clean Lake Study. 1987. Village of Port Jefferson Planning Study. 1987. Senior Citizen Study. The following major reports were printed and released by the Nassau-Suffolk Regional Planning Board. The Board is now called the Long Island Regional Planning Board. Lee E.Koppelman,Executive Director. 1966. Pro ed Bayville-Rxe B c e. 1967. The Status and Potential of the Marine Enviroaent. 1968. House-Better Homes for Better Corunities. 1968. Sales Tai.Study. 1968. Existing Land Use. 1969. Transportation. 1970. Lonland Co tn rehensive Development Plan. 1970. Zoning: Inventory and Analysis. 1977. Energy Facilities Subplan for Nassau-Suffolk Counties Coastal one Management Plan. 6 LEE E.KOPPELMAN ' Governmental Reports and Monographs coned 1978. Marine Fisheries Subplan-Coastal Zone Management Plan. 1978. Coastal Erosion Subplan-Coastal Zone Management Plan. 1979. Oil Sn'II Response Actions in Fire Island Inlet. 1980. IndustrialLocatiora Analysis. 1982. Land Use- 1981. 1982. Commercial Development Analysis. 1983. Labor Force and Jobs Analysis. 1984. 'he Journey to Work to Major Employment Centers. 1987.Special GroundwaterProtection Area Pro*t for the Oyster Bay Pilot Area and Brookhaven Pilot Area. 1988. Lon' _ , d Hi. , .wth • .-a Off-Pea,, Stud . -- '• 'rim- . e Pot-,. '. of • .• Island's Defense Sector in an Era of Change. 1989. ProposedLone Island South Shore hazard Management Program. 1994. Long Island Strategic Economic Development Plan. 1994. South Shore Mainland Hated Management Program. 1994. Long Island Corr3prehensive Regional Development Plan Summary Report: 1990- 2010_ The following major reports were printed and released by the Center for Regional Policy Studies,SUNY at Stony Brook. 1992. Working Paper#1-Municipal Government Operations Revenues and Expenditures. 1960-1990. 1992. Working Paper#2-Suffolk County Operations,,Revenues and Expenditures. 3..960-1990. 1992. Working Paper#3-Municipal Solid Waste Operations.Overation and Plan,. 1992. Working Paper 4t4-Taxatiton,Sales.Income�Property.Analysis and Alternatives. 7 - - LEE E.HOPPELMAN Governmental Reports and Monographs cont'd 1992. Working Paper#5-Nassau Count v Operations,Revenues and Expert 'tures 1960-1990: 1992. Working Paper#6-Lidice Operations.,Nassau&Suffolk Counties. 1992. Working Paper#7-Pre-School Handicapped Education. 1992. Working Paper#8-Departmental Operations,Revenue&Expenditures 1960- ,1990,Nassau&Suffolk Counties. 1992. Working Paper#9-School Operations,Nassau&Suffolk Counties. 1992. Working Paper#10-Policy Options. 1996. Q oundwater and Land Use Planning Experience from North Ameica. Articles Koppelman,Lee E., 1973. Planning Options and Political Realities. journal of Urban.Anal sem' . Volume 1, pp. 153-174. 1974. 'The Good,Bad and the Ugly-The Real World." Coastal Zone Management,The Coastal Im�pe, ive: Dew•elopina a National Perspective for Coastal Decision g. Committee on Commerce,93rd Congress,2nd Session. pp. 160-165. 1974. Coastal Zone Planning: A Case Study:Nassau and Suffolk Counties.Proceedings of the Environmental Planning Conference. Drexel University. pp. 359-384. - 1975. Models for Implementing the CZM Act's Concept of State-Local Relations. William and Mary Law Review,Volume 16,Number 4. pp.731-746. - 1976. Regional Planning at the Urban Fringe. 1'rroceedin. s of the Environmental Planning C reference. Drexel University. pp.275-296. and D. Davies, 1977. Conflicts in Uses and Misuses of the Tidal Water Zone. Coastal Recreatic nn Resources in an Urbanizing Environment,Monograph,University of Massachusetts and MTT Sea Grant Program. pp.81-92.- , and I. Houseley, 1977. The Shoreline Erosion Control Act: Institutional and Legal Arrangements Necessary for Implementation. I umal of American Shore and Beach Preservation Association, Volume 45,Number 4. pp.7-12. - D.Davies and O.Carroll, 1978. Coastal Zone Planning: An Integrated Approach. Coastal Zone Volume IV.A.S.C.E. pp.2553-2564. 8 ' LEE E.KOPPELMAN T " Articles coned Koppelman,Lee E., 1978. Legal/Institutional Issues in 208 Management. X.egaI lional and Soce'al Aspects of Irrieadon,Drama a and Water Resources Planning and Management. A.S.C.E. pp.750- 765. _,1978. Policy Issues in Waste Treatment PIanning. ournal of Urban Analysis.Volume 5,Number 2. pp.251-272. , , and D. Davies, 1978. Political Problems of Erosion Control. Proceedings,Technical Paper Number 7,A.S.B.P.A.and Florida Sea Grant Program. pp.67-86. ,, 1978. Land Use and Human Settlement. Hudson Basin Project. The Rockefeller Foundation. pp.90. , 1978. Land Use: Changing the Ground Rules. New York Affairs,Volume 5,Number 2. pp. 62-75. and M.Moss, 1979. Consequences of Industrialization/Urbanization of the NewYork Bight. Chapter IV-A of MESA Handboolk. 125 pp. and A.Kunz, 1979. Empty Desks: The Suburban School Dilemma. New York Affairs,Volume 5,Number 4. pp:88-95. and S. Robbin, 1980. The Long Island Response to the Risks of Outer Continental Shelf Oil Production. Jourj1 of Coastal Zone Management. Volumes 2,3 and 4. pp. 163-185. , et al, 1980. Coastal Land Use and Recreation. Report of North and Mid Atlantic Regional, Conference ora Ocean Pollution Resear _E)eve opment and Monit 'ng. MIT Sea Grant Program. 10 pp. , 1981. A Cause-Condition-Effect Model for the Integration of Coastal Data with Land Use Inventories,Ecuador. Proceedi gs.Seminar on Coastal Area Management and Integrated Development of the Coastal Areas,Guayaquil,Ecuador; 18-27 May 1981. 22 pp. 1982. Regional Planning in Suburban America,presented at Westfield State College,Westfield, Massachusetts,October 30, 1982. 25 pp. ,1982. Coastal Development Planning: Public Policy,Technology and Education in Support of Commerce, Industry and Resource Management, presented February 8, 1982 at IaTolla, California and published in Coastal Resources Development and Management Needs of Develo�i Countries. National Academia Press. 1983. Political and Policy Responses to Sea Level Rise,Chapter 10,Sea Level Rise to the Year 2100. Hutchison Press,New York and D.Davies, 1984. The Integration of Environmental Science and Regional Planning: The Past 20 Years-An Overview,presented at the national meeting of the National Association of Environmental Professionals,Baltimore,Maryland,April 16, 1984. 9 , LEE E.HOPPELMAN Y • Articles cont'd Koppelman,Lee E., 1985. Planning for Groundwater Protection: Long Island Case Study,Chapter 4 in Planning for oundwater Protection. Academic Press,Inc.,(Harcourt,Brace,Jovanovich),Orlando, , Florida. 66 pp. • 1986. Architectural Design for Residential and Nonresidential Markets of the Mid 80's: The Housing Affordability Issue, presented May 7, 1986, Rutgers University Development Impact Analysis Conference,Washington,D.C. 38 pp. • and D. Davies, 1987. Citizen Education and Participation. Magoon,Orville T.,et. al.,eds. Coastal Zone '87. Proceedings of the Fifth Symposium on Coastal and Ocean Management, Seattle, Washington,May 26-29, 1987. American Society of Civil Engineers,New York,New York,Volume 4,pp. - 3784-3797. • and DeWitt Davies."Management Priorities to Reverse the Decline of the Hard Clam Industry in Suffolk County,N.Y.,U.S.A."published in Costal Zonae 89. Paper presented Tuesday,July 11, 1989, Charleston,South Carolina. - -_, 'Maglev'inm Lit_ongili t Tical Journal,Stony Brook,New York,Spring 1991,Volume 3,No.2,pp. 217-225. and Pearl•M.Kamer. "Anatomy of the Long Island Economy: Retrospective and Prospective" in be Long Island l storical Jot 1.Stony Brook,New York, Spring 1994,Volume 6,No. 2,pp. 146-167. _,and Pearl M.Kamer, "Anatomy of the Long Island Economy: Retrospective and Prospective" in a Lo Island istoricaJYournaL Stony Brook,New York. Fall 1994. Volume 7,No. 1. "The Quest for a Suffolk County Legislature"inTtaeIsland Historical 3oumal Stony Brook,New York. Spring 1996. , "Peconic County: The Myth and the Reality"in The Long_Island Historical Journal, Stony Brook,New York. Spring 1997. ,"Environment vs.Development:Groundwater and Land Use PIanning in Nassau and Suffolk Counties"in The Long Island Historical Journal, Stony Brook,New York Pall 1997. AWARDS Certificate of Tribute, The Temporary State Commission on Water Resources Planning, May 1964. Contemporary Achievement Medal for Regional Planning,Pratt Institute,May 1968. Founder's Day Award(Scholastic Honor),New York University,April 1970. Silver"Archie",special award for environmental preservation,Long Island Association, Atnearican Institute of Architects,Architectural Awards Program, 1971. 10 LEE E.KOPPELMAN _ r ' Awards coned Gold Medal Community Benefactor Award,Long Island Association for Commerce and Industry, October 1971. Distinguished Professor Awards, 1971 and 1972,State University of New York at Stony Brook, Department of Political Science. Career Achievement Medal, Engineering and Architectural Alumni of the City College of New York, 1977. Honorary Doctor of Laws, Long Island University, conferred at commencement C.W. Post College,May 21, 1978. Elected to Sigma Xi,Honorary Scientific Society,January 1981. W. Averell Harriman College Public Service Award, 1981 Commencement, SUNY at Stony Brook,May 17, 1981. Honorary Affiliate Member,IA Chapter A.LA., September 1981. Citizen of the Year, National Society of Professional Engineers, LL Chapter, February 24, 1983. Elected Honorary Member,American Institute of Architects, May 1984. Distinguished Alumnus Award,New York University,March 30, 1985. Lone Eagle Award,Public Relations Society of America,February 24, 1986. Medal of Honor,Long Island Association,May 15, 1987. Distinguished Service Award,New York Metropolitan Chapter,American Planning Association,June 7, 1988. Distinguished Leadership Award, National Honors Program, American Planning Association, May 1, 1989. Third Annual Joseph Giacalone Award,April 22, 1988. Dedication of Lee E.Koppelman Nature Preserve,East Hampton,New York,August 11, 1989. Honorary Doctor of Humane Letters,Dowling College,conferred at commencement,June 2, 1991. Special Award for Excellence in the Craft of Political Science from the Department of Political Science, SUNY at Stony Brook, 1991. 11 LEE E.KOPPELMAN 1 , • Awards cont'd Distinguished Service Award,New York Metropolitan Chapter,American Planning Association,June,2000. LISTINGS International Dictionary of Biography Who's Who in the World Who's Who in America Who's Who in American Education Who's Who in the East ' 12 • : • • FAX NO. : 11 Aug. 17 2001 03:23PM PI FORM NO. 3 TOWN OF SOUTHOLD BUILDING DEPARTMENT SOUTHOLD, N.Y. AMENDED NOTICEOF�ROVAL, DATE; Aueust 13 200 TO Kace L.I. LLC C/o Kontokosta S 43 W. 54`h Street New York N.Y. 10019 Please take notice that your amend application dated August 10 2001 For permit for Multiple two farnil dweIIin•s at Location of property North Road CR48 Greenport County Tax Map No. 1000 - Section 40 Block 3 Lot 1 Subdivision Filed Map # Lot# Is returned herewith and disapproved on the followingo pursuant to Article IV Section 100-42A.2 which states: ands ro osed dwellings not permitted In the HD District no buildin• or .remises shall be used and no buildin_ or .art of a buildin• shall erected or altered which is arran:ed intended or desi: cd to be used in whole or in .art for an use be except th ollowine A. Permitted uses. (2) Two-family dwellin . Proposed .ro'ect indicates several exact amount unknown two fa nil dwellinc,s on a sin_le parcel. Code allows onl one such structure per lot as a permitted use. Authoriz ignature 6 1_ r , F • • PLANNING-BOA-1W TOWN OF SOUT HOLD SL FFOLK COUNTY * ,<\ Southold, V.Y. 11971 HENRY E. RAYNOR.Jr.. Chau-man • 1.\\IES WALL rt t'\, BEN-NETT ORLOWSKI.J• . GEORGE RITCHIE LATHA.f.Jr WILUAM F.NIULL1i.Jr. July 14 , 1983 Mr. David Kapell Kapell Real Estate 400 Front Street Greenport, New York 11944 Re: Northwind Village Site Plan Dear Mr. Kapell : The following action was taken by the Southold Town Planning Board, Monday, July 11, 1983 . RESOLVED that the Southold T the site Plan "Northwind Village"°'�n Planning Board approve certified by the BuildingInspectodaJunder117 ay 11 , 1982 , and 1933 . To date we have not received the appliction fee of $25 . Very truly yours , HENRY E. RAYNOR, JR. , CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Susan E. Long, Secrctary S . R to '', ,,,,,,'' TEL. 765-1802 e ����FOL�tp ; TOWN OF SOUTHOLD civ OFFICE OF BUILDING INSPECTOR P.O. BOX 728 •• TOWN HALL =�0 t`bOyr'`�� SOUTHOLD, N.Y. 11971 December 30 , 1986 Mr. E . Kontokosta 43 West 54th St . New York, N .Y . 10019 Dear Mr. Kontokosta : RE : Northwind Village North Road, Greenport Your application for a 4 Townhouse unit is ready for issuance of a permit . Unfortunat— ely, I can not give you same until I have written verification of water and sewerage from the proper agency . Yours truly, \(;a.A.A., • Victor G. Lessard VGL :hdv Exec . Admin . • t ii § 100-40 ZONING § 100-40 ARTICLE 1V M Light Multiple-Residence District § 100-40. Use regulations. In an M District,no building or premises shall be used,and no C building or part of a building shall be erected or altered which is arranged,intended or designed to be used,in whole or in part,for any use except the following: A. (Amended 540-75 by L.L. No. 3.1975] Permitted uses, subject to site plan approval of the Planning Board in accordance with Article XIII hereof. {1} Any permitted use set forth in,and as regulated by, § 100-30A of this chapter. (2) Multiple dwellings not exceeding one hundred twenty- five wentyfive(125) feet in length designed for and occupied by not more than four (4) families. ( (3) Boarding- and tourist houses. B. Uses permitted by special exception by the Board of Appeals. The following uses are permitted as a special exception by the Board, of Appeals, as hereinafter provided,and subject to site plan approval by the Planning Board in accordance with.Article XIII hereof: (1) Any special exception use set forth in.and as regulated by. § 100-30B of this chapter. except that the use set forth in§ 100-30BU6)shall not require site plan approval. [Amended 7-1-86 by LL.No.5.1986( t C. Accessory uses. (1) Any accessory use set forth in, and as regulated by, § 100.30C of this chapter. (2) Accessory uses on the same lot with and customarily incidental to any permitted use and not involving a separate business. 131 Signc. ,ub)ect to the following requirements: Cal One t I advt'rh.ine sign. euhrr Nuich- or (iuuhle- `I Lu•cit not more than (i(lv 130).+tuare feet in arra. 10029 • . ARTICLE IV I Hamlet Density (HD) Residential District ___ [Added 1-10-1989 by L.L.No. 1-19898] I § 100-40 * * * * § 100-41 * * * * § 100-42. Use regulations. In the HD District, no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part,for any use except the following: A. Permitted uses. (1) One-family detached dwelling. (2) Two-family dwelling. (3) Continuing care facility and life care community. [Added 11-12-1996 by L.L.No.20-1996] B. Uses permitted by special exception by the Board of Appeals. The following uses are permitted as a special exception by the Board of Appeals, as hereinafter provided, and subject to site plan approval by the Planning Board: (1) Multiple dwellings, townhouses, row or attached houses. (2) Accessory apartments in single-family residences as set forth in and regulated by § 100-31B(13) of the Agricultural-Conservation District. 10054.2 2_25_97 I H)yl •J 1 ' § 100-13 ZONING § 100-13 DEDICATION— The conveyance of a fee or lesser interest in property to public use, which precludes the• owner or others under him from asserting any right of ownership inconsistent with the use for which the property is dedicated. DWELLING, MULTIPLE— A building or portion 1 thereof containing three or more dwelling units. DWELLING, ONE-FAMILY— A detached building containing one dwelling unit only consisting of a minimum living area of 850 square feet. [Amended 4-24-1990 by L.L.No.8=1990] DWELLING, ROW OR ATTACHED— A one-family dwelling with two common or party walls separating it t' from adjacent units on both sides. DWELLING, SEMIDETACHED — A one-family dwelling with one wall in common with an adjacent dwelling. DWELLING, TWO-FAMILY— A detached building containing two dwelling units only. DWELLING UNIT— A building or entirely self- contained portion thereof consisting of a minimum living area of 850 square feet containing complete housekeeping facilities for only one family, including any domestic servants employed on the premises, and having no enclosed space, other than vestibules, entrance or other hallways or porches, or cooking or sanitary facilities in common with any "dwelling unit." A house trailer, a boarding- or rooming house, convalescent home, fraternity or sorority house, hotel, motel, inn, lodging or nursing or similar home or other similar structure shall not be deemed to constitute a "dwelling unit."[Amended 6-19-1990 by L.L.No. 13-1990] EASEMENT— A grant of the use of land for specific purposes. 10019 - 8-10-97 [ .r • ti� ��SllF I:0( eQG‘ o - >i ti y • Town 1-fall.53095 Main Road l v► fn Fax(631)765-1823 P.O. Box 1179 . rrt• Fax (631) 765-1802 Southold, New York 11971-0959 Ql *n7,�, BUILDING DEPARTMENT TOWN OF SOUTHOLD August 9, 2001 Pachman & Pachman P.C. 366 Veterans Memorial Highway Commack N.Y. 11725 Attn; Matthew Pachman Re; Kace LI, LLC SCTM# 1000-40-3-1 Dear Mr. Pachman, In response to your letter, dated August 8, 2001, this office cannot process the application in question as two family dwellings. Town Code Article IV Section 100-42A lists the permitted uses in this HD district. Listed is a two family dwelling, it is my understanding that your client proposes several two family dwellings on this parcel. It is my determination that more than one two family dwelling is not permitted, nor are they permitted by special exception. Should your client wish to appeal this determination an application for this project should be presented for disapproval. Sincerely, _ / Edward Forres Director of Code Enforcement . e 11 a § 100-30 ZONING § 100-31 areas are well documented and have inspired a host of govern- mental programs designed, with varying degrees of success, to achieve this result. For its part, the town is expending large sums of money to protect existing farm acreage. At the same time, the town has an obligation to exercise its authority to reasonably regulate the subdivision and development of this land to further the same purposes while honoring the legitimate interests of farmers and other farmland owners. § 100-31. Use regulations. [Amended 3-14-1989 by L.L.No. 3-1989] In A-C, R-80, R-120, R-200 and R-400 Districts, no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part, for any uses except the following: A. Permitted uses. (--- (1) One-family detached dwellings, not to exceed one dwelling on each lot. (2) [Amended 5-23-1989 by L.L. No. 8-1989] The following agricultural operations and accessory uses thereto, including irrigation, provided that there shall be no storage of manure, fertilizer or other odor- or dust-producing substance or use, except spraying and dusting to protect vegetation, within 150 feet of any lot line: (a) The raising of field and garden crops, vineyard and orchard farming, the maintenance of nurseries and the seasonal sale of products grown on the premises. [Amended 11-29-1994 by L.L. No. 25-1994; 5-13-1997 by L.L. No. 8-1997] 10040.1 s-10-97 IX K Z. 7 4 r r s n § 100-13 ZONING § 100-13 § 100-13. Definitions. [Amended 7-31-73] A. Word usage. Words used in the present tense include the future;the singular number includes the plural, and the plural the singular; the word "person" includes a corporation as well as an individual; the word "lot" includes the word "plot"; the term "occupied"or "used,"as applied to any building, shall be construed as though followed by the words "or intended, • - ( arranged or designed to be occupied or used." B. [Amended 10-26-76 by L.L. No. 5-1976; 4-11-78 by L.L. No. 2-1978; 2-1-83 by L.L. No. 2-1983; 1-21-86 by L.L. No. 1-1986; 5-17-88 by L.L. No. 14-1988; 8-23-88 by L.L. No. , 20-1988; 1-10-89 by L.L. No. 1-1989] Definitions and usages. Unless otherwise expressly stated, the following terms shall, for the purpose of this chapter, have the meanings as herein defined. Any word or term not noted below shall be used with a meaning as defined in Webster's Third New International Dictionary of the English Language, unabridged (or latest edition). ( ACCESS — A physical entrance to property. ACCESSORY APARTMENT —A dwelling unit created in a presently existing one-family dwelling pursuant to § 100- 31B(1.1). ACCESSORY BUILDING OR STRUCTURE — A building or structure detached from a principal building located on the same lot as and customarily incidental and subordinate to the principal building. ACCESSORY USE — A use customarily incidental and sub- ordinate to the main use on a lot,whether such"accessory use" is conducted in a principal or accessory building. ADDITION — A structure added to the original structure at some time after the completion of the original. AGRICULTURE —The production, keeping or maintenance, for sale. lease or personal use, of plants and animals useful to man. including but not limited to forages and sod crops;grains and seed crops;dairy animals and dairy products;poultry and poultry products; livestock, including beef cattle,sheep, swine. 10013 8-25-90 • o R Appeal No . 5003 ZONING BOARD OF APPEALS TOWN OF SOUTHOLD In the Matter of the Application of KACE LI , LLC AFFIDAVIT OF LEE E . KOPPELMAN V ,,,) \`9 4-c) ---4- (o ZONING BOARD OF APPEALS �► TOWN OF SOUTHOLD X In the Matter of the Application • APPEAL NO. 5003 of • KACE LI, LLC • X (2,77 MEMORANDUM ANTHONY B. TOHILL, P.C. ATTORNEY AT LAW 12 FIRST STREET P.O. BOX 1330 RIVERHEAD, NEW YORK 11901 i 'Z IP A,ac ct'r Appeal No . 5003 ZONING BOARD OF APPEALS TOWN OF SOUTHOLD In the Matter of the Application of KACE LI , LLC AFFIDAVIT OF LEE E. KOPPELMAN •LEE E.KOPPELMAN = Ci • EDUCATION • Undergraduate degree,City College of New York,School of Engineering Master of Science(Planning),Pratt Institute,Graduate School of Architecture Doctorate(Public Administration),New York University,Graduate School of Public Administration LICENSES Registered Landscape Architect,State of New York Licensed Professional Planner,State of New Jersey PRACTICE Private consulting practice in site planning and landscape architecture, 1950 to 1960. Director of Planning,Suffolk County Planning Department, 1960 to 1988. Executive Director,Long Island Regional Planning Board, 1965 to present. Leading Professor of Political Science and Director,Center for Regional Policy Studies, SUNY at Stony Brook, 1988 to present. Professor of Planning at the State University of New York at Stony Brook, 1967 to 1988. Adjunct Professor, Syracuse University Graduate School of Environmental Sciences, 1976 to 1983. Consultant,United States Department of Housing and Urban Development, 1972 to 1978. Appointed(by Secretary of Commerce,Frederick B.Dent)to the Coastal Zone Management Advisory Committee, 1973 to 1975. Appointed(by Lieutenant General W. C. Gr bble,Jr.,U.S.Army Corps of Engineers)to the.National Shoreline Erosion.Advisory Panel, 1974 to 1981. Appointed(by Governor Hugh Carey) as aDirector of the New York State Urban Development-Corporation, 1978 to 1980. Consultant,United Nations on Land Use and Coastal Zone Planning. Executive Director,The Bi-County Temporary Commission for Tax Relief on Long Island,1991. MAJOR RESEARCH Project Director, 1.5 million dollar comprehensive regional development planning project(Section 701), from U.S. Department of Housing and Urban Development, January 1965 through August 1970. This program produced the first housing element in 1967. The two-volume research was entitled'Residential Market Analysis." The final report, 'Better Housing for Better Communities," was distributed nationally by H.U.D.in 1967,and served as the prototype for the 1968 amendment to the Housing Act requiring all future 701 programs to include a housing element Project Director,$467,000 program for the Office of Technology and Research,U,S.Department of Housing and Urban Development for the development of a methodology and coastal zone manager's handbook relating coastal zone planning and management, 1974-1976. LEE E.KOPPELMAN t Major Research cont'd Project Director,5.2 million dollar compi'eheiisi ve area. ide waste treatment management planning project(Section 208),from U.S.Environmental Protection.Agency,January 1975 through March 1978. This project dealt specifically with urban runoff as it impacts on coastal zones. Long Island is one of the major coastal zones in the United States,with related involvements in outer continental shelf • oil exploration, marine transportation,national fisheries, etc., and continues to maintain a strong governmental and planning involvement in coastal zone management Project Director,1.75 million dollars. This project produced a regional coastal zone management planning program (Office of Coastal Zone Management, U.S. Department of Commerce), 1976 through 1980. Project Director,4.2 million dollar continuing 208 planning program,producing'"The Long Island Segment of the Nationwide Urban Runoff Program",May 1979 through December 1982. This program provided for the further investigation of the source,type,and fate of pollutants in runoff on Long Island,and an evaluation of the changes in runoff quality;that is,the reduction in pollutant loadings that could be achieved through the adoption of selected best management practices. This program also produced a'Nonpoint Source Management Handbook'which identified the cause- effect relationships and provided the best available guidance for use by public of cials,developers and residents concerned with the protection of ground and surface water by existing problems and needed controls for nonpoint sources of contamination. Project Director, "Hurricane Damage Mitigation Plan for the South Shore of Nassau an Suffolk Counties,N.Y.",$130,000 from the Federal Emergency Management Agency,Region II,to develop a plan which,if implemented,would minimize the loss of life and property in flood prone areas by providing a set of guidelines for development and post-storm redevelopment employing the techniques of flood plain management,October 1982 through December 1984. Project Director, USEPA Section 205(j) Grant to develop and initiate implementation of comprehensive groundwater protection programs in Critical Recharge Areas. $120,000 from January 1984 through present. Project Director,$2,307,802 from New York State Energy Research and Development Authority to characterize ash from waste management facilities and to investigate ash management options. 1987 through present Project Director,NYS ECON Art.55 Grant to study the remaining seven Critical Recharge Areas. $300,000 from 1987 through present Project Director, Water Quality and Environmental Resource Protection in Great South Bay. $240,000 from New York State Department of State,June 1988 through September 1989. Project Director, $40,000 from Mt. Sinai and Port Jefferson School Districts to plan for future relationship between the two districts. April 1987 through December 1988. 2 ,. l 1 Io LEE E.KOPPELMAN Major Research cont'd Project Director,$60,000 from.New York State Education Department to develop a computer model for Educational Resources Utilization and Scholastic Outcome. July 1987 through September 1988. Project Director,$70,000 grant from U.S.Department of Defense to undertake planning related to community impacts associated with the cancellation of the T-46 program and the closure of the Fairchild plant. August 1987 through September 1988. Project Director,$80,000 from New York State Urban Development Corporation to conduct a labor force analysis of the Nassau-Suffolk region. January 1989 through December 1990. Project Director, $40,000 from New York State Urban Development corporation to conduct a tourism marketing survey for the Nassau-Suffolk region. July 1989 through June 1990. Project Director, $90,000 from the Suffolk County Department of Social Services to conduct a productivity and performance analysis of the department. February 1989 through December 1989. • Project Director,$70,000 from the New York State Urban Development Corporation to determine the dependent care needs of the Long Island workforce. July 1990 through June 1991. Executive Director,The Bi-County Temporary State Commission for Tax Relief on Long Island,$250,000,New York State Legislature,April 1991 to May 1993. Project Director,$486,000 from the Federal Aviation Administration,to carry out a Feasibility Study for the use of Calverton Airport for commercial freight operations. Project Director,$97,095 from the Long Island Lighting Company to identify low-income consumers on Long Island for participation in L1LCO's energy packaging program. • Project Director,$200,000 from the Long Island Rail Road for a journey-to-work analysis on the pattern of worktrips from Nassau and Suffolk to New York City as well as reverse commutation and an analysis of HUB development opportunities. Project Director, $100,000 NYS Secretary of State. Land use segment of the Long Island Sound Study. Project Director,$39,095. A budget analysis for the Office of the Mayor,Village of Freeport. Project Director- an in-depth analysis and detailed report on the economic importance of Stony Brook University to the Long Island regional economy and the broader New York State region. Project Director,$158,875 from the Long Island Lighting Company-"Satisfying the Requirements of the Clean Air Act and Preserving the Long Island Environment by Encouraging the Use of Alternative Fuel Vehicles." Project Director,$100,000 from the New York State Department of Transportation to carry out a compressed work week/telecommuting demonstration program for the County of Suffolkand SUNY at Stony Brook 3 t ? LEE E.KOPPELMAN Major Research cont'd AUTHORSHIP ACTIVITIES Books Koppelraan,L,and J.DeChiara, 1968. PIanning Design Criteria. Reinhold Publishing Corporation. 386 pp. 0974. A Methodology to Achieve the Integration of Coastal Zone Science and Regional Planning. Praeger Publishers. 116 pp. _,and J.DeChiara, 1974, ?`lousing: Planning and Design. Prentice Hall. 500 pp. ,and J.DeChiara, 1975. Urban Planning and Design Criteria,2nd Edition.Van Nostrand. 646 pp. P.Weyl,G. Gross and D.Davies, 1976. The Urban Sea:Long Island Sound. Praeger Publishers. 225 pp. and J.DeChiara, 1978. Site Planning Criteria. McGraw Hill. 350 pp. et al., 1979. Lona Island Comprehensive WasteTreatment Management Plan, Volumes 1 and 2. Long Island Regional Planning Board. 607 pp. ,and J.DeChiara, 1981. Urban Planning and Design Criteria_3rd Edition. Van Nostrand. 700 pp. _, and J.DeChiara, 1982. Time Saver Standards for Site Planning. McGraw Hill. 700 pp. et al., 1982. Lone Island S grnent of the Nationwide Urban Runoff Program. Long Island Regional Planning Board. 238 pp. J.R.Schubel,et al. 1991. Great South Bay. StateUniversity Press. 200 pp. ,A.Kunz,E.Tanenbaum,D.Davies, 1992. Long Island Comprehensive Special Groundwater Protection Areas Plan. Long Island Regional Planning Board. 600 pp. - A.Kunz,F.Rosenberg,S.Forman. Financing Government an Lon Is{� land. NYS Temporary Commission for Tax Relief on Long Island. 1992. 196 pp. ,, A.Kunz, F. Rosenberg, S.Forman. Financing Government on Lang Island Woking Papez Volume 1. NYS Temporary Commission for Tax Relief on Long Island.March 1993. 408 pp. - A.Kunz,P.Rosenberg,S.Forman. Financing Government on Long Island-Working Paper Volume 2. NYS Temporary Commission for Tax Relief on Long Island. March 1993. 338 pp. 4 Y LEE E.KOPPELMAAN Z , Authorship Activities cont'd Koppelman,Lee E., A.Kunz,P. Kamer,D.Davies,T.Junor, 1993. Airport Joint Use 1?easibility Study Caly ton Airgort. Long Island Regional Planning Board. 248 pp. Editorial Editorial Board of the Journal of Socio-Economic Planning Sciences;and the Journal of the American Institute of Planners. Governmental Reports and Monographs The following major reports were printed and released by the Suffolk County Department of Planning, Lee E.Koppelman,Director. 1960. People and Parks. 1962. Status of Planning ira Suffolk County. (Paper delivered at Governor's Briefing held at the State University Campus,Stony Brook,N.Y.,July 17, 1962.) Printed in Pro ess Re ort. 1962. 1962. Population. 1962. Economic Base. 1962. seed and Feasibility for County Park Fa ' 'ties. 1962. ca Lol Government-An Analysis. 1962. Existing laid Use. 1964. Special Report-New York State Route 5A-Town of Smithtown. 1964. social Planning Council,. 1964. Need and Peasibbillry fora Mapping_Proeram in Suffolk County. 1964. planning_for Open Space in Suffolk County. 1965. Park and Ride. 1966. Hauppauge-A Comoxehensive MasterPlan. 1980. iousii g.Report. 5 t, LEE E.KOPPELMAN x Governmental Reports and Monographs cont'd 1980. Open Space Policy. 1980. Impact of Proposed Peconic County. 1981. Phase II-Farmland Preservation Plan. 1981. Priorities Committee Report. 1983. A Plan for Mitigating the Environmental Impacts of Development in the Three Mile Harbor Watershed. 1985.,Analysis of Dredges¢&Spoi1 Disposal Activity Conducted by Suffolk County. • 1986. Hauppauge Industrial Analysis. 1986. Town of Shelter Island-Planning.Environmental Investigations : d Analy�'a. 1986. Lake Ronkonkoma-Clean Lake Study. 1987. Village of Port Jefferson Planning S dx, 1987. S�ge j_or Citizen Study. The following major reports were printed and released by the Nassau-Suffolk Regional Planning Board. The Board is now called the Long Island Regional Planning Board. Lee E. Koppelman,Executive Director. 1966. Proposed Bavville-Rye Bridge. 1967. The Status and Potential of the Marine Environment. 1968. Housing-Better Homes for Better Communities. 1968. Sales Tax Study. 1968. misting Land Use. 1969. Transportation. 1970. Long Island Comprehensive Develop, ent Plan. 1970. Zoning:inventory and Analysis. 1977. Energy Facilities Subplan for Nassau-Suffolk Counties Coastal Zone Managern,cwt Plan. 6 7 LEE E.XOPPELMAN Governmental Reports and Monographs cont'd 1978. Marine Fisheries Subplan-Coastal Zone Management Pte. 1978. Coastal Erosion Subplan-Coastal Zone Management P . 1979. Oil SPi esponse Actions in Fire IslandInlet. 1980. IndustrialLocation Analysis. 1982. Land Use- 1981. - 1982. Commercial Development Analysis. 1983. 7.,abor Force and Jobs Analysis. 1984. ;t~he Journey to Worlc_to Major Employment Centers. 1987.Special Garoundwaterr Protection Area Project for the Oyster Bay Pilot Area and Brookhaven Pilot}irea. 1988. Lona _ d I , .wth -ea Off-Pea, Stud . __ 'zin- . e Pot,s '- of • Island's Defense Sector in an Era of Chanae. 1989. Proposed LongJsland South Shore Hazard Management Program. 1994. Long Island Strategic Economic Development Plan. 1994. South Shore Mainland Hazard Management Program. 1994. Lonl. .,_o d C• •.c ,ensive ;e;onal D vel..m . •lin Su ,many Report 1990- The following major reports were printed and released by the Center for Regional Policy Studies, SUNY at Stony Brook. 1992. Working Paper#1-Municipal Government Operations,Revenues and xpenditures. 1960-1990. 1992. Working Paper#2-Suffolk County Operations„Revenues and Expenditures. 1960-1990. 1992. Working Paper#3-Municipal Solid Waste Operatiors.Operation and Plan. 1992. Working Paper#4-Taxation.Sales.Income PLoperty,.Analysis and Alternatives. 7 02/27/02 09:36 N0.045 D10 r I requirements (such as, for example, the bulk and dimensional requirements, public water and sewer connection, and site plan approval if applicable) are permitted because they do not present the land use concerns that that unpermitted or conditional uses pose. Again, under' Emilita' s illogical interpretation multiple dwellings would be conditionally permitted on the subject parcel, but two-family dwellings would not. . -Simply stated, there is nothing uncertain, ambiguous or accidental about the language in §100-42 (A) . WHEREFORE, the relief requested by the applicant should be granted in my ,opinion, ,,q11f47„,„ LEE E. KOPPELMAN Sworn to before me on this _ 27' day of February 2002 C(:":"Lna 4110 i - ,/ LINDA A.PFEWFER A t Notary Public.State o; 4ev York Notary PNo. g' E7 ' Qualified in S :elk County 9.-0 Commission Ex Maes August 31, F:\Uaca\CLIENTS\KONTOKOS\Kace\ AVAKoppelman.aff.final.wpd • • 8 ZONING BOARD OF APPEALS TOWN OF SOUTHOLD X In the Matter of the Application of Appeal No. 5003 KACE LI, LLC AFFIDAVIT X STATE OF NEW YORK ) ss . . COUNTY OF SUFFOLK ) LEE E. KOPPELMAN, being duly sworn, deposes and says : 1 . I am the Executive Director of the Long Island Regional Planning Board and a Leading Professor of Political Science and Director of the Center For Regional Policy Studies at the State University of New York (SUNY) at Stony Brook. A copy of my curriculum vitae is attached hereto as EXHIBIT "A". 2 . At the request of the applicant, KACE LI, LLC (KACE) , I have reviewed its application pending before the Southold Zoning Board of Appeals (ZBA) and the affidavit of David J. S . Emilita (Emilita) submitted in opposition thereto. A. 3 . This application is an appeal requesting an interpretation reversing the Southold Town (Southold) Building Inspector' s (Building Inspector) Notice of Disapproval, dated August 13, 2001, denying an application for a building permit for construction of two-family dwellings under Southold Code (Code) Article IV, Section 100-42 (A) . (A copy of the Notice of n f ' J. Disapproval is attached as EXHIBIT "B". ) The sole reason stated in the Notice of Disapproval is that the project proposes several two- family dwellings on the parcel which is the subject of this application (the subject parcel) , and that the Code allegedly allows only one such structure per parcel as a permitted use in the Hamlet Density (HD) zoning district. 4 . I am advised that KACE owns the subject parcel, which consists of more than 17 acres of vacant land located on the south side of Route 48 near the juncture of Chapel Lane within the Town of Southold. The subject parcel is identified on the Suffolk County Tax Map as District 1000; Section 040; Block 3; Lot 1 . 5. I am also advised that, from approximately 1975 to approximately 1989, the zoning classification of the subject parcel was Light Multiple Residence (LMR) and, thereafter, the zoning classification was changed to HD. The subject parcel has been owned by KACE or its predecessor since approximately March 10, 1982 . 6. On or about the 11th day of July 1983, the Southold Planning Board (Planning Board) approved a site plan (the 1983 site plan) for KACE to build a residential development at the subject parcel to be known as North Wind Village (the Project) . (A copy of the approval letter is attached hereto as EXHIBIT "C" . ) 7 . Thereafter, by letter dated December 30, 1986, KACE was informed by the Building Inspector that a building permit to 2 c 3 commence construction of the Project had been approved, but it could not be issued until KACE received water and sewage service from the Village of Greenport. (A copy of the letter is attached hereto as EXHIBIT "D". ) 8 . Attached hereto as EXHIBITS "E" and "F" respectively are copies of Code §100-40 (listing the permitted uses in the old LMR district) and Code §100-42 (listing the corresponding permitted uses in the present HD district) . As can be seen, §§ 100-40 (A) and 100-42 (A) are identical, word-for-word, except that multiple dwellings were deleted as a permitted use, reclassified as a conditionally permitted use, subject to issuance of a special exception permit by the ZBA, and replaced as a permitted use by two-family dwellings .' 9. I am also advised that KACE has correspondingly changed the 1983 site plan in only one respect . Instead of developing the structures for multiple residences, it has agreed to develop them for two family dwellings, as permitted as a matter of right in the HD zoning district. B. 10 . Emilita' s objections to the application can be divided into six sections : (1) the 1983 site plan is no longer ' Attached hereto as EXHIBIT "G" is the pertinent portion of Code §100- 13, which defines a two-family dwelling as "A detached'building containing two dwelling units only" and a multiple dwelling as "A building or portion thereof containing three or more dwelling units." 3 valid (9191 5-8) 2; (2) more than one one-family or two-family dwellings are considered "multiple dwellings" under the Code (9119) ; (3) one must read Code §100-42 (A) (2) in the context of the entire Code (S10) ; (4) the proper interpretation of the Code as determined by the Planning Board in 1983 and the Building Inspector in 1986, and as advanced by KACE in this application would "by a corollary reasoning process" (9110) require that "on a mere application for a building permit one would be allowed more than one two-family dwelling" (9110) without reference to the: (i) dimensional requirements of the Code (9110 (A-C) ) ; (ii) Code §100-250 (the site plan review section) (9110 (D-F) ) ; and (iii) without consideration of the availability of public water or public sewer (9110 (G) ) ; (5) this proper interpretation of the Code would "read Section 100- 42 (B) out of the Code. . . . " (111) ; and (6) the legislative intent supports the Building Inspector' s interpretation as contained in the Notice of Disapproval (9111-14) . 11 . Each of these points will be addressed in seriatim; the following analysis is premised upon my many years of experience in the field of zoning and planning. SQL 12 . The Building Inspector has listed only one basis for his Notice of Disapproval . 2 References to the designation "1- " refer to the paragraphs in Emilita' s affidavit. 4 • 13 . Thus, the limited, narrow and focused issue presently before the ZBA is whether the Notice of Disapproval, based solely on the use of the buildings as two-family dwellings, should be overturned. 14 . Any other issue, such as the validity of the 1983 site plan, is, in my opinion, beyond the scope of this application and, at this time, beyond the ZBA' s jurisdiction. (2) 15 . It is a plainly erroneous interpretation of the Code to argue that two-family dwellings are considered multiple dwellings under the Code. As previously detailed, multiple dwellings are defined as "buildings with three (3) or more dwellings units"; in contrast KACE has proposed to build two-family dwellings . 16. Upon closer scrutiny, the reason for Emilita' s attempt at statutory alchemy becomes clear. Without this, under his theory KACE could build only one two-family house, but many , multiple dwelling units (which listed as a conditionally permitted use, actually constitutes a legislative finding that such dwellings are in harmony with the community' s general zoning plan and will not adversely affect the neighborhood) . 3 3 This is exactly the position taken by the Building Inspector as confirmed in his letter to KACE dated August 9, 2001 (a copy of which is attached as EXHIBIT "H") . 5 (3) ' 17 . Certainly, one must read Code §100-42 (A) (2) in the context of the entire Code. Unfortunately, it is this very analysis which, in my considered opinion, further highlights the flaw in Emilita' s analysis . ' 18 . First, in Code §100-31 (A) (1) , each of Southold' s other residential zoning districts (A-C, R-80, R-120, R-200, and R- 400) list " . . . one family detached dwellings, not to exceed one dwelling on each lot" as a permitted use (emphasis added) . (A copy of §100 (31) (A) is attached as EXHIBIT "I") . 19 . Thus, the Code employs clear, consistent and unambiguous language when it limits residential dwellings to one per parcel . In stark contrast, there is no such limiting language in §100-42 (A) (2) . 20 . I believe this is the very same conclusion reached by the Planning Board in 1983, and the Building Inspector in 1986, when the Project was approved subject only to water and sewer service . 21 . Second, Code §100-13 (A) reads, in pertinent part, "word usage. . .the singular number includes the plural and the plural, the singular. . . . " (A copy of the pertinent part of this Section is attached as EXHIBIT "J". ) 22 . Thus, when one rationally and objectively reads the entire Code, the strained interpretation proffered by the objectors 6 collapses. (4) 23 . It is my understanding that KACE' s site plan complies with all of the bulk and dimensional requirements as contained in the Code as it existed in 1983, and as it presently reads . For example, at acre density, KACE could construct 34 buildings; the site plan proposes only 27 buildings . Furthermore, KACE has never sought issuance of a building permit prior to the availability of public water and sewer, or without site plan approval, and the proper interpretation of the Code would leave these requirements intact and unaffected. This argument is nothing more than a "red herring. " (5) 24 . It is another attempt to contrivance out claim that the proper interpretation of the Code would read §100-42 (B) out of th'e Code. KACE has never made such a claim, and no such interpretation is before this Board. Multiple dwellings would remain subject to issuance of a special exception permit from the ZBA. (6) 25 . Although it is my understanding that one should not seek to explore the intentions of the legislative body if the Code is, as here, unambiguous, the legislative intent is obvious : one- family or two-family dwellings which meet the other Code 7 ; s LEE E.HOPPELMAN Governmental Reports and Monographs contd • 1992. Working Paper#5-Nassau County Operations.Revenues and Expenditures. 1960-1990. 1992. Worldng Paper#6-Police Operations.Nassau&Suffolk_counties. 1992. Working Paper#7-PT-School Handicap ed Education. 1992. Working Paper#8-Deaartrnentad Operations,Revenue&Expenditures 1960- ,1990,Nassau&Suffolk Counties. 1992. Working Paper#9-School Operations.Nassau&S olk Counties. 1992. Working Paper#10-Policy Options. 1996. Groundwater and Land Use Planning:�perience from North America. Articles Koppelman,Lee E., 1973. Planning Options and Political Realities. ;ournal of Urban Analysis. Volume 1, pp. 153-174. 1974. 'The Good,Bad and the Ugly-The Real World." Coastal Zone Management,The Coastal Imaer�tive: Developing aNational P 've for Coate.tel Decision Making. Committee on Commerce,93rd Congress,2nd Session. pp. 160-165. _, 1974. Coastal Zone Planning: A Case Study:Nassau and Suffolk Counties.Proceedings of the nnvironrmenta1 Planning Conference. Drexel University. pp.359-384. _, 1975. Models for Implementing the CZM Acts Concept of State-Local Relations. William and Mary Law Review,Volume 16,Number 4. pp.731-746. .- 1976. Regional Planning at the Urban.Fringe. Piroceedings of the Environmental Planning Conference. Drexel University. pp.275-296. - and D. Davies, 1977. Conflicts in Uses and Misuses of the Tidal Water Zone. Coastal Recreation Resources in an Urbainizin�En�virvnrnent,Monograph,University of Massachusetts and MIT Sea Grant Program. pp.81-92. , and S. Houseley, 1977. The Shoreline Erosion Control Act: Institutional and Legal Arrangements Necessary for Implementation. ipu malof Anleric nn Shore and Beach Preservation Association, Volume 45,Number 4. pp.7-12. D.Davies and 0.Carroll, 1978. Coastal Zone Planning: An Integrated Approach. Coastal Zone '78.Volume IV.A.S.C.E. pp.2553-2564. 8 LEE E.KOPPELMAN Articles cont'd • Koppelman,Lee E., 1978. Legal/Institutional Issues in 208 Management I.egaLinstitutioal and S 4.1=1: o ' •' - e -,d Wat . 'eso ces PIa u ' : .• Mane lement. A.S.C.E. pp.750- 765. 1978. Policy Issues in Waste Treatment Planning.Journal of Urban Analsyr' Volume 5,Number 2. pp.251-272. and D.Davies, 1978. Political Problems of Erosion Control. Proceedings,Technical Paper Number 7,A.S.B.P.A.and Florida Sea Grant Program. pp.67-86. ,, 1978. Land Use and Human Settlement. JTudson Basin Project. The Rockefeller Foundation. • pp.90. • _,'1978. Land Use: Changing the Ground Rules. New York Affairs,Volume 5,Number 2. pp. • 62-75. - and M.Moss, 1979. Consequences of Industrialization/Urbanization of the NewYork Bight. Chapter IV-A of MESA Handbook. 125 pp. and A.Kunz,1979. Empty Desks: The Suburban School Dilemma. New York Affair. s,Volume 5,Number 4. pp.88-95. and S.Robbin, 1980. The Long Island Response to the Risks of Outer Continental Shelf Oil Production. Journal of Coastal Zone Management. Volumes 2,3 and 4. pp. 163-185. , et at, 1980. Coastal Land Use and Recreation. Report of North and Nrid_itlantic Regional Conference on Ocean Pollution Research_DevelQWnent and Monitoring. MIT Sea Grant Program. 10 pp. 1981. A Cause-Condition-Effect Model for the Integration of Coastal Data with Land Use Inventories,Ecuador. proceedings,Seminar on Coastal Area Management and Integrated Development of the Coastal Areas,Guayaquil,Ecuador; 18-27 May 1981. 22 pp. 1982. Regional Planning in Suburban America,presented at Westfield State College,Westfield, Massachusetts,October 30, 1982. 25 pp. 1982. Coastal Development Planning: Public Policy,Technology and Education in Support of Commerce, Industry and Resource Management,presented February 8, 1982 at LaJolla, California and published in Coastal Resources Devel mens and Management Needs of Devela g Countries. National Academia Press. _,,1983. Political and Policy Responses to Sea Level Rise,Chapter 10,Sea Level Rise to the Year 2100. Hutchison Press,New York. and D.Davies, 1984. The Integration of Environmental Science and Regional Planning: The Past 20 Years-An Overview,presented at the national meeting of the National Association of Environmental Professionals,Baltimore,Maryland,April 16, 1984. 9 LEE E.HOPPELMAN . Articles cont'd Koppelman,Lee E.,1985. Planning for Groundwater Protection: Long Island Case Study,Chapter 4 in Plannj' for Groundwater Protection. Academic Press,Inc.,(Harcourt,Brace,Jovanovich),Orlando, Florida.. 66 pp. 1986. Architectural Design for Residential and Nonresidential Markets of the Mid 80's: The Housing Affordability Issue, presented May 7, 1986, Rutgers University Development Impact Analysis Conference,Washington,D.C. 38 pp. and D.. Davies, 1987. Citizen Education and Participation. Magoon,Orville T.,et.al.,eds. Coastal Zone '87. Proceedings of the Fifth Symposium on. Coastal and Ocean Management, Seattle, Washington,May 26-29, 1987. American Society of Civil Engineers,New York,New York,Volume 4,pp. • 3784-3797. - and DeWitt Davies."Management Priorities to Reverse the Decline of the Hard Clam Industry in Suffolk County,N.Y.,U.S.A."published in Coastal Zone 89. Paper presented Tuesday,July 11, 1989, Charleston, South Carolina. "- Maglev"inTie bona Island Historical Journal,Stony Brook,New York,Spring 1991,Volume 3,No.2,pp. 217-225. and Pearl M.Kamer. "Anatomy of the Long Island Economy: Retrospective and Prospective" in The Longi historical Journal,Stony Brook,New York,Spring 1994,Volume 6,No. 2,pp. 146-167. • and Pearl M.Kamer. "Anatomy of the Long Island Economy: Retrospective and Prospective" inTheIsland 'stories Jouma Stony Brook,New York Fall 1994. Volume 7,No. 1. "The Quest for a Suffolk County Legislature"inThe Ian¢Island Historical 3oumal Stony Brook,New York Spring 1996. . "Peconic County:The Myth and the Reality"in The Long_Island I_g ical Journal, Stony Brook,New York. Spring 1997. "Environment vs.Development:Groundwater and Land Use Planning in Nassau and Suffolk Counties"in The I. a Island Historical Journal,Stony Brook,New York. Fall 1997. AWARDS Certificate of Tribute, The Temporary State Commission on Water Resources Planning, May 1964. Contemporary Achievement Medal for Regional Planning,Pratt Institute,May 1968. Founder's Day Award(Scholastic Honor),New York University,April 1970. • Silver"Archie",special award for environmental preservation,Long Island Association, American Institute of Architects,Architectural Awards Program, 1971. 10 LEE E.KOPPELMAN ' ' Awards cont'd Gold Medal Community Benefactor Award,Long Island Association for Commerce and Industry, October 1971. Distinguished Professor Awards, 1971 and 1972,State University of New York at Stony Brook, Department of Political Science. Career Achievement Medal, Engineering and Architectural Alumni of the City College of New York, 1977. Honorary Doctor of Laws; Long Island University, conferred at commencement C.W. Post College,May 21, 1978. Elected to Sigma Xi,Honorary Scientific Society,January 1981. W. Averell Harriman College Public Service Award, 1981 Commencement, SUNY at Stony Brook,May 17, 1981. Honorary Affiliate Member,LI.Chapter A.LA., September 1981. Citizen of the Year, National Society of Professional Engineers, LI. Chapter, February 24, 1983. Elected Honorary Member,American Institute of Architects, May 1984. Distinguished Alumnus Award;New York University,March 30, 1985. Lone Eagle Award,Public Relations Society of America,February 24, 1986. Medal of Honor,Long Island Association,May 15, 1987. Distinguished Service Award,New York Metropolitan Chapter,American Planning Association,June 7, 1988. Distinguished Leadership Award, National Honors Program, American Planning Association, May 1,1989. Third Annual Joseph Giacalone Award,April 22, 1988. Dedication of Lee E.Koppelman Nature Preserve,East Hampton,New York,August 11, 1989. • Honorary Doctor of Humane Letters,Dowling College,conferred at commencement,June 2, 1991. Special Award for Excellence in the Craft of Political Science from the Department of Political Science, SUNY at Stony Brook, 1991. II LEE E.KOPPELMAN I Awards coned Distinguished Service Award,New York Metropolitan Chapter,American Planning Association,June,2000. LISTINGS International Dictionary of Biography Who's Who in the World Who's Who in America Who's Who in American Education Who's Who in the East 12 ,',Alify ' f S FAX NO. : ,,' _ Aug. 17 2001 03:23PM PI i • FORM NO. 3 _ TOWN OF SOUTHOLD •BUILDING DEPARTMENT SOUTHOLD, N.Y. AMENDED NOTICE OF DISAPPROVAL. DATE; Aueust I3 2001 TO Kace L.I. LLC C/o Kontokosta 43 W. 54`h Street New York N.Y. 10019 Please take notice that your amended application dated Au t 10 2001 For permit for Multi de two famil dweIlin:s at Location of property North Road CR48 Green.ort County Tax Map No. 1000- Section 40 Block 3 Lot 1 Subdivision Filed Map # Lot# Is returned herewith and disapproved on the following grounds proposed dwellings not permitted ursuant to Article IV Section 100-42A.2 which states: In the HD District no buildin• or .remises shaI1 be used and no buildin_ or .art of a buildin: shall be erected or altered which is at-ran:ed intended or desi: cd to be used in whole or in .art for an use except the followin A. Permitted uses. (2) Two-family dwellin Pro.osed .ro'ect indicates several exact amount unknown two farm] dwcllinas on a sin:le .arcel. Code allows onl one such structure .er lot as a 'ermined use. . 12.........A...-eS, Authoriz , ignature 1 . Z i r:y^ ✓^••NGF iil•,j,;''r OF �,�� T01ti SOUT HOLD ::E_. .;V. .,,: 'A.1 FOLK COU'NT'Y <•. Southold, N.Y. 11971 HENRY E. RAYNOR.Jr.. Clawson JAMES WALL r!--z3.,,-)\,- Bt NETT ORLOWSKI.Jr . GEORGE RITCHIE LATHAM.Jr WILLIAM F.ML'LLEN.Jr. July 14 , 1983 Mr. David Kapell ' Kapell Real Estate 400 Front Street Greenport, New York 11944 - Re: Northwind Village Site Plan. 1 I Dear Mr. Kapell : The following action was taken by Board, Monday, July 11, 1983 . the Southold Town RESOLVED that the Southold Town Planning Board approve the , site clan "Northwind Villacre" dated May certified by the BuildingInspector June 17 11 , 1 . and 1933 . To date we have not received the appliction fee of $25 . Very truly yours-, HENRY E. RAYNOR, JR . , CHAIRMAN SOUTHOLD TOWN PLANNING BOARD Dy Susan E. Long, Secrctar Y s .,''"," - TEL. 765-1802 •'��� S�FFairCp TOWN OF SOUTHOLD :; OFFICE OF BUILDING INSPECTOR P.O. BOX 728 TOWN HALL uO�•`�� SOUTHOLD, N.Y. 11971 • December- 30 , 1986 Mr. E . Kontokosta 43 West 54th St . New York, N .Y . 10019 Dear Mr. Kontokosta: . RE : Northwind Village North Road , Greenport Your application for a 4 Townhouse unit is ready for issuance of a permit . Unfortunat— ely , I can not give you same until I have written verification of water and sewerage from the proper agency. Yours truly , Victor G. Lessard VGL :hdv Exec . Admin . ♦ - il ' 1 § 100.40 ZONING § 100-40 ' ARTICLE 1V M Light Multiple-Residence District § 100.40. Use regulations. In an M District,no building or premises shall be used,and no 1, ( building or part of a building shall be erected or altered which is arranged,intended or designed to be used,in whole or in part,for any use except the following: A. [Amended 5-30.75 by L.L. No. 3-19775) Permitted uses, 1 subject to site plan approval of the Planning Board in accordance with Article XIII hereof. (1) Any permitted use set forth in, and as regulated by, § 100-30A of this chapter. (2) Multiple dwellings not exceeding one hundred twenty *...___.4.p. five(125)feet in length designed for and occupied by not more than four (4) families. ( (3) Boarding- and tourist houses. B. Uses permitted by special exception by the Board of Appeals. The following uses are permitted as a special exception by the Board of Appeals, as hereinafter provided,and subject to site plan approval by the Planning Board in accordance with.Article XIII hereof: (1) Any special exception use set forth in.and as regulated by, § 100-30B of this chapter. except that the use set forth in§ I00-3013(16)shall not require site plan approval. (Amended 7-1-86 by I..L.No.5.198131 I -- t C. Accessory uses. (l) Any accessory use set forth in, and as regulated by, § 100.30C of this chapter. ' (2) Accessory uses on the same lot with and customarily - incidental to any permitted use and not involving a ` separate business. 1 1:11 Signs. .ublect to the following requirements: t:t} tine (I) :ulverti'inc sign. e iht•r \inch.- or double.. I [.tree!. not more than fifty 130)'quart. [vet in arta. L. 10029 • . 3/4 • r . , c ARTICLE IV Hamlet Density (HD) Residential District [Added 1-10-1989 by L.L.No. 1-19898] § 100-40 § 100-41 * * * * § 100-42. Use regulations. In the HD District, no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part,for any use except the following: A. Permitted uses. - (1) One-family detached dwelling. (2) Two-family dwelling. (3) Continuing care facility and life care community. [Added 11-12-1996 by L.L.No.20-1996] B. Uses permitted by special exception by the Board of Appeals. The following uses are permitted as a special exception by the Board of Appeals, as hereinafter provided, and subject to site plan approval by the Planning Board: (1) Multiple dwellings, townhouses, row.or attached • houses. (2) Accessory apartments in single-family residences as set forth in and regulated by § 100-31B(13) of the Agricultural-Conservation District. 10054.2 2-25-97 , 'y7} , 1 11 t fU • ! I § 100-13 ZONING § 100-13 DEDICATION— The conveyance of a fee or lesser interest in property to public use, which precludes the • owner or others under him from asserting any right of ownership inconsistent with the use for which the property is dedicated. DWELLING, MULTIPLE— A building or portion thereof containing three or more dwelling units. DWELLING, ONE-FAMILY— A detached building containing one dwelling unit only consisting of a minimum living area of 850 square feet. [Amended 4-24-1990 by L.L.No.8-1990] DWELLING, ROW OR ATTACHED— A one-family dwelling with two common or party walls separating it from adjacent units on both sides. DWELLING, SEMIDETACHED — A one-family dwelling with one wall in common with an adjacent dwelling. DWELLING, TWO-FAMILY— A detached building containing two dwelling units only. DWELLING UNIT— A building or entirely self- contained portion thereof consisting of a minimum living area of 850 square feet containing complete housekeeping facilities for only one family, including any domestic servants employed on the premises, and having no enclosed space, other than vestibules, entrance or • other hallways or porches, or cooking or sanitary facilities in common with any "dwelling unit." A house trailer, a boarding- or rooming house, convalescent home, fraternity or sorority house, hotel, motel, inn, lodging or nursing or similar home or other similar structure shall not be deemed to constitute a "dwelling unit."[Amended 6-19-1990 by L.L.No. 13-1990] EASEMENT— A grant of the use of land for specific purposes. 10019 8-10-97 t • P f ��SVF BOG 3�0 o • - ti` y Town Ilsll,5 095 Main Road • 0rrr Fax(631) 765-1823 P.O. Box 1179 ifi Telephone(631)765-1802 Southold, New York 11971-0959 4P0214 f+.r BUILDING DEPARTMENT TOWN OF SOUTHOLD August 9, 2001 Pachman & Pachman P.C. 366 Veterans Memorial Highway Commack N.Y. 11725 Attn; Matthew Pachman Re; Kace LI, LLC SCTM# 1000-40-3-1 Dear Mr. Pachman, In response to your letter, dated August 8, 2001, this office cannot process the application in question as two family dwellings. Town Code Article IV Section 100-42A lists the permitted uses in this HD district. Listed is a two family dwelling, it is my understanding that your client proposes several two family dwellings on this parcel. It is my determination that more than one two family dwelling is not permitted, nor are they permitted by special exception. Should your client wish to appeal this determination an application for this project should be presented for disapproval. Sincerely, / Edward Forres Director of Code Enforcement 1 f 4 �. § 100-30 ZONING § 100-31 areas are well documented and have inspired a host of govern- mental programs designed, with varying degrees of success, to achieve this result. For its part, the town is expending large sums of money to protect existing farm acreage. At the same time, the town has an obligation to exercise its authority to reasonably regulate the subdivision and development of this land to further the same purposes while honoring the legitimate interests of farmers and other farmland owners. § 100-31. Use regulations. [Amended 3-14-1989 by L.L.No. 3-1989] In A-C, R-80, R-120, R-200 and R-400 Districts, no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part,for any uses except the following: A. Permitted uses. (1) One-family detached dwellings, not to exceed one dwelling on each lot. (2) [Amended 5-23-1989 by L.L. No. 8-1989] The following agricultural operations and accessory uses thereto, including irrigation, provided that there shall be no storage of manure, fertilizer or other odor- or dust-producing substance or use, except spraying and dusting to protect vegetation, within 150 feet of any lot line: • (a) The raising of field and garden crops, vineyard and orchard farming, the maintenance of nurseries and the seasonal sale of products • grown on the premises. [Amended 11-29-1994 by L.L. No. 25-1994; 5-13-1997 by L.L. No. 8-1997] • 10040.1 s-10-97 - 1 § 100-13 ZONING § 100-13 § 100-13. Definitions. [Amended 7-31-73]- A. Word usage. Words used in the present tense include the future;the singular number includes the plural,and the plural the singular; the word "person" includes a corporation as well ILII as an individual; the word "lot" includes the word "plot"; the term "occupied"or "used," as applied to any building, shall be construed as though followed by the words "or intended, • (. arranged or designed to be occupied or used." - B. [Amended 10-26-76 by L.L. No. 5-1976; 4-11-78 by L.L. No. 2-1978; 2-1-83 by L.L. No. 2-1983; 1-21-86 by L.L. No. , 1-1986; 5-17-88 by L.L. No. 14-1988; 8-23-88 by L.L. No. 20-1988; 1-10-89 by L.L. No. 1-1989]Definitions and usages. Unless otherwise expressly stated, the following terms shall, for the purpose of this chapter, have the meanings as herein defined. Any word or term not noted below shall be used with a meaning as defined in Webster's Third New International Dictionary of the English Language, unabridged (or latest edition). ACCESS — A physical entrance to property. ACCESSORY APARTMENT—A dwelling unit created in a presently existing one-family dwelling pursuant to § 100- . - 31B(14). ACCESSORY BUILDING OR STRUCTURE — A building or structure detached from a principal building located on the same lot as and customarily incidental and subordinate to the principal building. ACCESSORY USE — A use customarily incidental and sub- ordinate to the main use on a lot,whether such"accessory use" is conducted in a principal or accessory building. { ADDITION — A structure added to the original structure at some time after the completion of the original. AGRICULTURE —The production, keeping or maintenance, for sale. lease or personal use, of plants and animals useful to man. including but not limited to forages and sod crops;grains 111 and seed crops;dairy animals and dairy products;poultry and poultry products; livestock, including beef cattle,sheep;swine. • 10013 8-2s-so • a. I 41 0 ' P°°/ . 4 l'ID " Ild- ,r, LEji 0A LIST OF DOCUMENTS `71 . Memorandum in Opposition 1-,/ 2 . Appendix of Case Authorities LZ--3 . Appendix of Exhibits ./4 . Local Law 11 of 1985 /5 . Text of Chapter 100 (Prior to 1/10/89 ) /6 . Letter of Suffolk County Planning Commission / 7 . Affidavit of David J. S. Emilita 8 . Text of New York Statutes § 252 C JUNTY OF SUFFOLK . . ROBERT J. GAFFNEY SUFFOLK COUNTY EXECUTIVE THOMAS ISLES, AICP DEPARTMENT OF PLANNING DIRECTOR OF PLANNING October 26, 2001 Anthony B. Tohill, Esq. P.O. Box 1330 Riverhead,NY 11901-0903 Re: Northwind Village SCTM#1000-40-03-01 Dear Mr. Tohill: We are in receipt of your written request of October 19, 2001 to this office regarding the above. A review of our records indicates no file with that name and no activity on that tax map lot for either municipal zoning actions or subdivision activity. We trust this information is helpful. Sincerely, otiosteire)/91,12;g:;;7 Andrew P. Freleng, AICP Principal Planner APF:cc G\CCHORNY\SUBDIVIMISC\TOHILL OCT LOCATION MAILING ADDRESS H. LEE DENNISON BLDG. -4TH FLOOR ■ P. 0. BOX 6100 ■ (5 1 6)853-5 19C 100 VETERANS MEMORIAL HIGHWAY HAUPPAUGE. NY 11788-0099 TELECOPIER(51 6)853-404- a • f — a • �x ^,g, IrzP �r - , wr �all { n , 4F } S V . e, �- �'� t`' McKINNEY'S j Ydt q ,i CONSOLIDATED . ... . .r.i LAWS , ...,,. .2 3-lri k �' r ..OF ,7":% 3.. � y r NEW YORK x ANNOTATED £ r tR r `. 1 •i yr`� F,yrJ a 'x F ' Book 1r,� , �� Statutes P ;tij . '�`.� ,'trv�Y r 3 4 .-4r `-'r '4' I . art�x f '. z nnotation4 ; ^•' From v State and Federal Courts m _ ,fir.. MAI' £ 7.ti- m,is.._ I"r; • and ce. 4`f' 'r rs� A5i * • u Y .State Agencies ,t.,,,..,:,,,/,.,:,1:,.,..,-,,,,„-%-- Y . $ 3}S 1 .- >r 43. ', .`. £ . tit:1, 4 v tea[ - -',. ' 4.' • qt 17 ST. PAUL, MINN. .t r �2.EX'; k. ii WEST PUBLISHING CO. t;1,�4 X I , ., rrhJ Y.-•.. i • 33 .4 e • s r, f- • • i r . .r l• .1-4C _, ,' may . - .c ..4a d' . • § 251 STATUTES Ch. 6 Ch. 6 ` struction of the act, there is no occasion for refusing to follow - • ; such-constructions § 253. 4-- 1 ' Library References Statutes C=4200; C.J.S. Statutes§340. Nr ' al S § 252. Singular and plural forms t; 1c Singular and plural forms of words will be literally t General r construed n statutes unless it is necessary to depart • from strict usage to give effect to the legislative in- printed, S - tent. appears ii punctuati • Ordinarily the Legislature by use of a plural term intends a allowed t( . reference to more than one matter or thing,7 and by the use of stated the the singular number, a reference to one matter or thing is -too much usually imported.$ However, the grammatical form of words must not must give way if it conflicts with the legislative intent; and construct where such is the case, words in the singular may be construed the expos as plural, and viceI versa.9 transpose This rule is nol v declared by section 35 of the General Con- t one mark struction Law, which provides: "Words in the singular number 1 -the iawmf. include the plural, and in the plural number include the singular." �A.-..:_ It is obvious that this statute is not to be literally construed and ,s How evf it does not mean that, under all circumstances, a word in for centu) the singular has a plural meaning," ora word in the plural has ,1 • make the a a singular meaning. Hence, the statutory rule is not applicable clear the , where the act to be construed indicates that it shall not be £ a ti aluabl( applied.11 Notice is also to be taken of the care with which an ._y_<" act was drafted, 4nd in the case of a statute which indicates that error di5. it was carefully drawn, the use of the plural form may not be t ela __ deemed a mere inadvertence." a 43. Tyrrell Library References: Statutes 0=188, 189: C.J.S. Statutes§337. N.T. 239 - •: 14. Butteri 6. Heeney v. Brooklyn Benev. Soc., 10. People ex rel. New York C. & H. 489. 33 Barb. 360, affirmed 39 N.Y. 333. R. R. Co. v. Woodbury, 1913, 208 In re Brook N.Y. 421. 102 N.E. 565. N.Y. 434 7. Hodgman v. People. 4 Denio 233; People v. Safford, 5 Denio 112. - Tyrrell C. 1 I1. Movnahan v. New York, 1912, r ^39. 53 N. 8. People v. Lytle, 1896, 7 App.Div. 205 N.Y. 181, 98 N.E. 482. City of NeR 553, 40 N.T.S. 153. People ex rel. New York C. & H. R. Corporati, R. Co. v. Woodbury, 1913, 20S NS. r 264 N.T.S S. People v. Gates, 56 N.Y. 387. 421, 102 N.E. 565. .1;_People ex People ex rel. Town of Scarsdale v. Beekman v. Third Ave. R. Co., 1897. Hall an Public Service Commission, Second 13 App.Div. 279, 43 N.Y.S. 174, af- ,4.•?, 1938, 1. ,)' Dist., 1914, 173 App.Div. 164, 159 firmed 153 N.Y. 144, 47 N.E. 277. ••e.'i.- reve _ N.Y.S.48,reversed on other grounds , 2d ;,r 220 N.Y. 1, 114 N.E. 1050. 1902, '`= ' r 12. Minor v. Erie R. Co., 171 . 279 Goddell T. Jackson 2x dem. Smith, N.Y. 566, 64 N.E. 454, reargument ?" ' 20 Johns. 693, 11 Am.Dec. 351. denied 172 N.Y. 648, 65 N.E. 1119. -'•,;; ",,' 416 I,<,. 'A. A 91),‘A 31\e/6- A (i 5 ANTHONY B. TOHILL, P.G. 1`(\ ATTORNEYS AT LAW �`' I2 FIRST STREET P.O. BOX 1330 ANTHONY B.TOHILL TELEPHONE• RIVERHEAD, NEW YORK, 11901-0903 (631)727-8383 MICHAELT CLIFFORD OF COUNSEL TELEFAX: (631)727-6336 March 15, 2002 BY HAND DELIVERY , Linda Kowalski Town of Southold 53095 Main St. -65-7- m ' Southold, NY 11971 - = Re: Kace LI, LLC Dear Linda: Here are six copies of my supplemental Memorandum in Opposition. Very truly yours, } Anthony B. Tohill ABT/lm Encs . cc (w/enc. ; via fax) : Matthew Pachman, Esq. 4110 i ZONING BOARD OF APPEALS TOWN OF SOUTHOLD X In the Matter of the Application APPEAL NO. 5003 of • KACE LI, LLC • X d MEMORANDUM IN OPPOSITION 4 i The beginning point in any analysis of this matter is the application for a building permit dated August 10, 2001 . That application is Exhibit V in the Appendix of Exhibits made a part of this record by the objectants . Exhibit V is dated August 10, 2001 . Exhibit V provides that the "intended use and occupancy" of the premises is "multi-housing-2 family dwellings . " The number of dwelling units on the subject 17 acres is stated as "2 units/bldg. " For one to understand the dimensions of each building, the application for a building permit signed by E. M. Kontokosta states at one point: "See app'd site plan, " at another point "See appd site plan 7/11/83" and at another point "See approved site plan. " The next beginning point is the application to the Zoning Board of Appeals dated August 13, 2001 . This is Exhibit X in the Appendix of Exhibits . This application was assigned No. 5003 . This application to the Zoning Board of Appeals consists of four pages . The first page gives the name of the applicant, its attorney and the location of the property. The next page is marked by pen "not applicable. " The next page, the Transactional Disclosure Form, states that this is an application for an "interpretation of denial of building permit by Building Inspector. " The last page provides the gist of the application. That last page states that the Planning Board approved the site • plan for the subject premises on July 11, 1983 and that there is an existing valid site plan for the subject 17 acres. (Neither • i the application for a building permit nor the application to this Zoning Board reveals that the 1983 site plan approval was for 108 condominium units in 27 buildings, a completely different use. ) The last beginning point is an examination of the Amended Notice of Disapproval dated August 13, 2001 . This document, which is Exhibit W in the Appendix of Exhibits, is signed by Edward Forrester. The document states that the amended application for a building permit is disapproved because only one 2-family dwelling is allowed as of right and without site plan and special exception approval under § 100-42 (A) and (B) of the Zoning Ordinance. The text of § 100-42(A) states that a 2-family dwelling is a permitted use in the HD District. The Amended Notice Of Disapproval states "Proposed project indicates several (exact amount unknown) two family dwellings on a single parcel. Code allows only one such structure per lot as a permitted use. " The precise argument of the applicant, Kace LI, LLC, on this appeal does not deal with the precise language of § 100- 42(A) (2) which says that "In the HD District, no . . . premises shall be used . . . for any use except the following: * * * Two (2) family dwelling. " Instead, the argument of the applicant is that in order to understand § 100-42(A) one must read into § 100-42 (A) the text of § 100-31(A) (1) . Stated differently, § 100-31(A) (1) says that 2 i in a multiplicity of residential districts other than HD "no . . . premises shall be used . . . for any use except the following: * * * • One-family detached dwellings, not to exceed one ( 1 ) dwelling on each lot. " Analytically, according to the applicant, one is required to read § 100-42 (A) as missing the words "not to exceed one ( 1) dwelling on each lot" as a result of which according to the applicant it follows as a matter of statutory interpretation that the number of two-family dwellings allowed in the HD District is not what § 100-42 (A) states but instead a larger unknown number. To agree with this assertion requires that you abandon reading skills learned as a child, disregard common • sense, ignore the plain meaning of the words and buy into some bargain and mischief crafted by the applicant, with the assistance of others . Kace LI, LLC is asking the Zoning Board of Appeals to render a determination that says there is an ambiguity in § 100- 42 (A) even if a person of average intelligence reading § 100- 42 (A) would understand the text of that regulation to mean that the Zoning Ordinance allows as a permitted use only one two- family dwelling on "premises" in the HD District. Stated differently, the applicant Kace LI, LLC is saying to the Zoning Board of Appeals that the Zoning Board must -- and has no choice here -- read § 100-42 as confusing and ambiguous whether or not the Zoning Board -- and the rest of the 3 4 Town of Southold -- have had no trouble reading the clear and plain language of § 100-42 since 1989 . The Zoning Board, according to the applicant, is prohibited from understanding any history about the draftsmanship of §S 100-31 and 100-42 . More precisely, the Zoning Board, the Building Inspector, the property owners and the Town of Southold generally, according to the applicant, Kace LI, LLC, are prohibited from knowing that Bob Tasker had one writing style and Stuart Turner had another writing style, and that one (Bob Tasker) wrote § 100-31 and that the other (Stuart Turner) wrote § 100-42 years later. That different writing styles would explain the different use of language is not information, according to the applicant, that the Zoning Board is allowed to know in interpreting the Zoning Ordinance. If the Zoning Board is able to read § 100-31 and understand that Section as a clearly worded regulation,, and if the Zoning Board is able to read § 100- 42 and understand that Section as a clearly worded regulation, the Zoning Board as the next step is required to reject its reading of one of the two Sections, and, upon rejecting one of the two Sections, elect only § 100-31 as the gospel from Olympus . If the Zoning Board erroneously elects to construe each of the two Sections, 100-31 and 100-42, as equally clear and understandable as each applies to the separate zoning districts, then the Zoning Board is guilty, according to Kace LI, LLC, of an incompetent analysis of the Zoning Ordinance. If you have • trouble following this, be confident that you understand more than the applicant desires . 4 4 U In order to maintain a faithful loyalty to the argument of Kace LI, LLC, the Zoning Board, according to Kace LI, LLC, is not permitted to read or comprehend any of the language in Exhibit V or Exhibit X, particularly the "attachment" or fourth page of Exhibit X, but, instead, is required only to focus on the language in Exhibit W. Even then, the Zoning Board, according to the applicant, is not allowed to read the last two sentences of Exhibit W. The reason that the applicant wants the Zoning Board to ignore the constant references to site plan approval is that the Zoning Board, according to the applicant -- the applicant orally and in writing throughout this entire presentation has failed to acknowledge that § 100-250 of the Zoning Code exists much less has any bearing on this inquiry -- is not allowed to inquire whether or not in fact there is a site plan approval for the "multi-housing-2 family dwellings" (see Exhibit V) on these 17 acres in the H-D District. The mischief at hand is that the Zoning Board would somehow -- as if anyone could make sense of this -- ignore all of Article XXV of the Town Code which requires site plan approval for, among other uses, "multi-housing-2 family dwellings . " Section 100-250 states : This Article shall apply to every land use that is permitted in the Town of Southold except the single-family home use on a single and separate lot . . . . Section 100-250 further states : In all cases where this Chapter requires approval of site development plans by the Planning Board, no building permit shall be issued by the building inspector except upon 5 • 41, authorization of and in conformity with the site plan approval . . . . Section 100-253 states : No building permit shall be issued for any structure or building for which use a site plan is [sic) pursuant to this Chapter 100 until a determination has been made by the Planning Board as to whether a site plan or an amendment thereto is required . . . . The applicant, Kace LI, LLC, insists as part of the bargain here that the Zoning Board must ignore Exhibit Z, a memorandum dated September 20, 2001 from the Planning Board to the Zoning Board annexed to the Appendix of Exhibits . That memo says there is no site approval for a two-family development at this site. The applicant, Kace LI, LLC, has asked the Building Inspector for a building permit. The applicant, Kace LI, LLC, has asked the Zoning Board of Appeals to reverse the denial by the Building Inspector of the application for a building permit. The Zoning Board's approval of this application by Kace LI, LLC means that a building permit will be issued by the Building Inspector. Issuance of the building permit is the applicant' s intended next step. Such an approval means that the Zoning Board has written out of the Town Code all of Article XXV, including §S 100-250 and 100-253, each of which requires valid site plan approval prior to the issuance of a building permit. Such an approval by the Zoning Board of Appeals requires that the Zoning Board of Appeals ignore the September 6 i 20, 2001 memorandum from the Planning Board which states that the subject "multi-housing 2 family dwellings" project has no site plan approval at all . Such an approval requires that the Zoning Board of Appeals as part of the bargain here ignore all of the language on the second page of Exhibit V referencing three times an approved site plan where there is no approved site plan. Such an approval requires as part of the bargain that the Zoning Board ignore the language in the last two sentences of the Building Inspector' s denial annexed as Exhibit W. Such an approval requires that the Zoning Board ignore all of the language on the attachment or fourth page of Exhibit X which is the August 13, 2001 application before the Board at this time. If the Board were to ignore all of these facts and all • of these regulations, then the Board will have done exactly what the applicant has requested. In the process the Board will have rewritten the Zoning Ordinance. For the Board to make such a mistake is inconceivable with the record now before the Board. That record includes the Appendix of Exhibits, the Memorandum in Opposition dated November 15, 2001, the text of Chapter 100 in effect prior to January 10, 1989, the text of Local Law No. 11 of 1985, the October 26, 2001 letter of the Suffolk County Planning Commission, the text of New York Statute § 252 and the affidavit of David J. S. Emilita. The record also contains the Memorandum of Law of Matthew Pachman which appears to be "ships passing in the night" ' with the entirety of the objectants ' November 15, 2001 Memorandum 7 i U of Law and which is clearly "ships passing in the night" with Article XXV of the Zoning Ordinance, including the requirement that a building permit for anything other than a single-family home use on a single and separate lot be preceded by site plan review and approval . Finally, the record contains the Affidavit of Lee E. Koppelman dated February 27, 2002 . Worth noting -- indeed worth the concerted focus of any observer of this proceeding -- is what Lee Koppelman did not know when he signed his affidavit. Lee Koppelman did not know that the site plan approval had expired in 1985 when Local Law No. 11 of 1985 was adopted. Lee Koppelman did not know that the site plan from 1983, dead in 1985, was rendered dead again by Local Law No. 1 of 1989 on January 10, 1989 . Lee Koppelman did not know about the Memorandum of Law submitted by the objectants dated November 15, 2001 . Lee Koppelman did not know about the Appendix of Case Authorities submitted by the objectants . Lee Koppelman did not know about the letter dated October 26, 2001 from the Suffolk County Planning Commission stating that the Suffolk County Planning Commission never even reviewed any site plan for these 17 acres in 1983 . Lee Koppelman did not know that there was no SEQRA review for this 1983 site plan. Lee Koppelman did not know that the Planning Board of the Town of Southold on September 20, 2001 (Exhibit Z in the 8 i i Appendix of Exhibits) stated there is no site plan approval in effect for this property. Lee Koppelman did not know that § 100-250 requires site plan approval for any use, even a two-family dwelling -- even one two-family dwelling. Lee Koppelman did not know that § 100-250 requires site plan approval before a building permit may be issued. Lee Koppelman did not know about any of the denials by the Building Inspector prior to August 10,, 2001 within which the Building Inspector opined there was no site plan approval and there was no special exception approval as is required under § 100-42 (B) . Lee Koppelman did not know that § 100-253(A) requires that the Building Inspector receive from the Planning Board a current notice of a valid existing site plan approval before issuing a building permit. Lee Koppelman did not know when he signed page 8 of his affidavit dated February 27, 2002 that the words "site plan approval if applicable" in the second and third lines of page 8 of that affidavit had such significance when applied to the facts so obviously but inartfully concealed by the applicant here. Lee Koppelman thought -- incorrectly -- and one is left to wonder how Lee Koppelman made such a huge mistake -- that there was a current site plan approval for the two family use. One important point is made in Lee Koppelman's affidavit, but neither he nor the applicant appreciates its import here: a two-family residence is not a multiple residence 9 i410 (which requires 3 or more units per building) , and -- this is the important part -- the current building permit application is for a completely different land use from that proposed in 1983, a point that did not escape the Planning Board on September 20, 2001 (see Exhibit Z in Appendix of Exhibits) . Because Lee Koppelman knew none of the controlling facts here, his affidavit sadly is either worthless or at best further evidence of the extreme measures that the applicant will take to hoodwink the Building Inspector, the Planning Board, the Zoning Board and the objecting neighbors and even their own consultant. The Zoning Board cannot enjoy a claim of ignorance of the key facts in this matter. The applicant before the Board has no interest in an interpretation as if this were an academic exercise. The applicant's sole goal is to obtain a building permit without site plan approval . This Board is prohibited as a matter of common sense and as a matter of law from participating in making such a bargain with the applicant Kace LI, LLC. Dated: March 15, 2002 Respectfully submitted, ANTHONY B. TOHILL, P.C. By: Anthony B. Tohill 12 First Street P.O. Box 1330 Riverhead, New York 11901 631-727-8383 10 411 i AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ) ss: COUNTY OF SUFFOLK ) I, the undersigned, being sworn, say: I am not a party to the action, am over 18 years of age and reside at Holtsville, New York. On March 15, 2002, I served the within Memorandum by transmitting a copy to the following person by FAX at the telephone number set forth after his name below. Matthew E. Packman, Esq. - 543-2271 &m-01/4217271/=Z7 Carmelita Matta Sworn to before me this 15th day of March, 2002 . of / Iyo ary Public NOTARYEPU L C StateRO NNw York Oualtf�ed In Suffolk CouMyP Commission Expires June 3011 IU 0 ZONING BOARD OF APPEALS TOWN OF SOUTHOLD X In the Matter of the Application • APPEAL NO. 5003 ' of •• KACE LI, LLC •• X APPENDIX OF CASE AUTHORITIES _ 4 y43 Y S ANTHONY B. TOHILL, P.C. ATTORNEY AT LAW 12 FIRST STREET P.O. BOX 1330 RIVERHEAD, NEW YORK 11901 /in 296 681 NEW YORK SUPPLEMENT, 2d SERIES 2 ,. there was a recent examination by the defen- 2. Courts x99(7) ','.° _° .° ORDE dants' doctor which diagnosed the same con- Appellate Division was not bound by H_ { deleting clition. or unappealed order, as to timeliness of de- P_ i o branch c Accordingly, the motions for summary claratory judgment action, made in Supreme "y''.`;r to dismr 4 Court by Justice of coordinate jurisdiction to - „'- complair judgment should have been denied. ;IA:,-..--.- the >;,.- the Justice who made the appealed order :_ " sion den dismissing the action. '4*, . y,,M motion; p SKETNUMBERSYSTEM ,,;,;.;,',,,',1 without T 3. Declaratory Judgment x129 �, , cau.e 0, City=s alleged failure to comply with and the General Municipal Law requirement of refer- Rr.. Court. r ' ring municipal zoning ordinance to county ings in a planning agency before enacting the ordi- nance was not mere procedural irregularity The a' 256 A.D.2d 336ty Corp but was jurisdictional defect involving validf_ In the Matter of ERNALEX ty of legislative act which was reviewable in a velop a CONSTRUCTION REALTY declaratory judgment action. McKinney's Cove (sc CORP., Appellant, General Municipal Law §§ 239-1.239-m. r City o{ 1\.Y.S.2( v. 4. Declaratory Judgment 0123 plan api: CITY OF GLEN COVE, Validity of a legislative act is reviewable respond, et al., Respondents. in a declaratory judgment action. Glen Co in 1986. Supreme Court. Appellate Division. t, the Cit;. Second Department. Douglas E. Szulman, New York City. for added appellant. - This sec • Dec. 7, 1998. tion Or( Crowe, Deegan & Dickson. Glen Cove • (Kathleen Deegan Dickson. of counsel: • velopme Developer brought Article 78 action to Douglas W.Warden on the brief), for respon- By a ; compel city planning board to approve site- dents. dated plan application, and challenged validity of trier al' Before BRACKEN, J.P., and RITTER. to eoml� municipal zoning ordinance. The Supreme SANTLUCCI and ALTMAN, JJ. cation u Court, Nassau County, Alpert, J., granted ty Rei iE • city's motion to dismiss. Developer appealed. MEMORANDUM BY THE COURT. SEQRA The Supreme Court, Appellate Division, held r w that city's alleged failure to comply with Gen- In a proceeding pursuant to CPLR article In addi eral Municipal Law requirement of referring 78, inter alia, to compel the Planning Board that the municipal zoning ordinance• to county plan- .4i.',.,:, lan- of the City of Glen Cove to approve a site- null and �'� ning agency before enacting the ordinance plan application under the State Environ- J.). ren involved validity of legislative act, and thus mental Quality Review Act, in which that Board was reviewable in declaratory judgment ac- portion of the proceeding challenging the • final en' tion. validity of Glen Cove Municipal Zoning Ordi- 4stn days nance § 30.60 was converted into an action Court cc Affirmed as modified. for a judgment declaring, inter alia, that ing cha' Glen Cove Municipal Zoning Ordinance rotecti § 30.60 is invalid, Ernalex Construction Re- menac 1. Courts x99(7) alty Corp. appeals from an order of the determi Trial court, in deciding motion to dis- Supreme Court, Nassau County (Alpert, J.), that the miss,was bound, under doctrine of law of the entered March 12, 1997, which granted the the app: case, by order of justice of coordinate juris= respondents' motion to dismiss the complaint .a;, develop diction as to the timeliness of declaratory and denied its cross motion for summary _ ., ,..t,...„ Clearly judgment action challenging municipal ordi- judgment declaring that Glen Cove Municipal _ TFC issues", nance. Zoning Ordinance § 30.60 is invalid. -.. , hand file •'t - 1:,• ,` ERNALEX CONST. REALTY v. GLEN COVE 297 -, Cite as 681 N.YS.2d 296 (A.D.2 Dept. 1998) • ORDERED that the order is modified by Ernalex subsequently served a complaint -', deleting the provision thereof granting that stating two causes of action. The first al- branch of the respondents' motion which was leged that the Hillside Protection Ordinance u to dismiss the second cause of action of the was null and void because it was enacted by ,r„ - complaint and substituting therefor a provi- the respondent Glen Cove City Council with- - Sion denying that branch of the respondents' out complying with SEQRA. The second w .,A motion: as so modified. the order is affirmed, cause of action alleged that the ordinance y ' ':-i without costs or disbursements, the second was null and void because it was enacted •-'. , • cause of action of the complaint is reinstated, without proper compliance with General Mu- ``"�ry'� and the matter is remitted to the Supreme nicipal Law § 239—m. The respondents :,; ;,- P P P r, - .ft Court. N assau County. for further proceed- moved to dismiss the complaint on the . ings in accordance herewith. ground, inter alia, that it was time-barred. r-. The appellant. Ernalex Construction Real- The Supreme Court concluded that the chal- is Corp. (hereinafter Ernalex), seeks to de- lenges to the Hillside Protection Ordinance '1i , ," velop a 3.89 acre parcel in the City of Glen "should have been brought in a proceeding `' "l`:i Cove (see,Matter of Ernalex Constr. Corp. v. pursuant to CPLR article 78, which is now • "` time-barred". The court therefore granted ' ''��Sw• City of Glen Cove, 256 A.D.2d 338, 681 A4;kl' ; N.Y.S.2d 298 [decided herewith]). A site- the motion and dismissed the complaint as 4 .r• time-barred. We modify and reinstate the ? `t4, plan application was initially submitted to the •lt- a=�_ respondent Planning Board of the City of second cause of action. ' `�`t:. Glen Cove (hereinafter the Planning Board) [1,2] The court,in deciding the motion to 7- in 1986. Thereafter, on September 12, 1989, firdismi ,A . ss,was bound,under the doctrine of law _ ., r.— the City Council of the City of Glen Cove of the case, by the order of a Justice of for riw added § 30.60 to its local zoning ordinance. coordinate jurisdiction, as to the timeliness of --" This section, known as the "Hillside Protec- the declaratory judgment action (see, Martin ove 4� ..; tion Ordinance", substantially restricted de- v. City of Cohoes, 37 N.Y.2d 162, 165, 371 ...el: velopment on the parcel. N.Y.S.2d 687, 332 N.E.2d 867; Mooney v. on .''7; Y :i'__ By a petition pursuant to CPLR article 78, PCM Development Co., 253 A.D.2d 454, 675 dated September 8. 1995, Ernalex sought, N.Y.S.2d 316 [2d Dept.1998] ). This court, inter alia, to compel the Planning Board (1) however, is not bound by the prior unap- - to complete its review of the site-plan appli- pealed order made in the Supreme Court ° cation under the State Environmental Quail- (see, Post v. Post, 141 A.D.2d 518, 519, 529 4,...4' ty Review Act (see. ECL art. 8 [hereinafter N.Y.S.2d 341; see also, D'Guardia v. Piffath, `- SEQRA]) and (2) to approve the application. 180 A.D.2d 630, 633-634, 579 N.Y.S.2d 447). •;tele In addition, Ernalex sought a declaration The Legislature has declared that "certain . F , a; that the Hillside Protection Ordinance was classes of zoning and planning actions by a -site- i�--- null and void. The Supreme Court (McCabe, a=- , city, town or village be reviewed by -•�,n 5;, t J.), remitted the matter to the Planning the county planning agency for the county in nat i,':;''- Board with directions to prepare and file a * y -•,- , which such municipality is located as _ the final environmental impact statement within an aid in coordinating such zoning actions -n•di- . z:',...-1,-, ,•,:.:7 45 46 da s. At the same time, the Supreme yP and planning among municipalities by bring- :tion -r,''''''',4 Court converted that portion of the proceed- " -x mg pertinent inter-community and county- that •,a , challenging the validity of the Hillside lance ' `' wide considerations to the attention of the • W .-_,t..... - 'on Ordinance into a declaratory judg- aforesaid municipal agencies having jurisdic- Re- -- :'•+-wti?% -4 action (see, CPLR 103[c]). The court • ,, - the ,': -`' '' - -' ed that the "action was timely in tion (General Municipal Law§ 239—I). D. -" -3.r` '' ' the proceeding was commenced within 4,,_!•:(7, [3,4] The instant complaint alleges that -. the :' at.:«;T'' applicable six year period". In order "to the Hillside Protection Ordinance was of the • faint • op the fullest record possible, and to type required to be referred to the Nassau Inan .. - lY delineate and amplify the relevant County Planning Commission and that such :opal :f ' 2::r,. _ ", the court directed Ernalex to serve referral did not take place (see, General Mu- - -- " file a complaint in the action. nicipal Law § 239—m). The alleged failure to 4'h q y .i 1ri 298 681 NEW YORK SUPPLEMENT, 2d SERIES .n;. . k �'{ comply with the referral provisions of the '' statute is not a mere procedural irregularity 256 A.D.2d 338 .°=: • but is rat i�er a jurisdictional defect involving In the Matter of ERNALEX . 1 the validity of a legis1atve act(see, Matter of CONSTRUCTION REALTY _ ' 3 ": 1 ,i, o oard of Zan- G! ing Appeals of Town of Hempstead, 185 CORP., Appellant, d ! A.D.2d 984, 985, 587 N.Y.S.2d 29; Matter of V. Ferrari v. Town of Penfield Planning Board, Michael BELLISSIMO, et 181 A.D.2d 149, 152, 585 N.Y.S.2d 925; Mat- al., Respondents. ter of Burchetta v. Town Board of Town of • Carmel, 167 A.D.2d 339, 341, 561 N.Y.S.2d Supreme Court, Appellate Division. t 305; Matter of Old Dock Assocs. v. Sullivan, Second Department. 150 A.D.2d 695, 697, 541 N.Y.S.2d 569; 1 Weinstein Enters. v. Town of Kent, 135 Dec. 7, 1998. 3 j A.D.2d 625, 522 N.Y.S.2d 204; Matter of Zagoreos v. Conklin, 109 A.D.2d 281, 286, Developer brought Article 78 petition to i 491 N.Y.S.2d 358; see also, Matter of Home annul city planning board's denial of site-plan s Depot USA v. Baum, 226 A.D.2d 725, 726, application. The Supreme Court, Nassau : 'i 641 N.Y.S.2d 707; cf., Matter of Voelckers v. County,Alpert,J., denied the petition. Devel- ' Guelli, 58 N.Y.2d 170, 176-177. 460 N.Y.S.2d oper appealed. The Supreme Court, Appel- 8, 446 N.E.2d 764; Matter of Stankavzch v. late Division, held that board's denial of site- Town of Duanesburg Planning Board, 246 plan application for 28-unit residential pro- , , A.D.2d 891, 667 N.Y.S.2d 997). Since the ject was arbitrary and capricious, as board's validity of a legislative act is raised, the issue State Environmental Quality Review Act is reviewable in a declaratory judgment ac (SEQRA) findings- tion (see. Janiak V. Town of-Greenville, 2O' comments. relied on six speculative '. AD 2d 329, 331, 610 N.Y.S.2d 286; Interna tional Paper Co. v. Sterling Forest Pollution Reversed and remanded. Control Corp., 105 A.D.2d 278,_482 N.Y,S.2d. • 827). The Supreme Court therefore errone- Zoning and Planning«381.5 -- sly determined that the second cause of action was untimely(see, CPLR 213[1] ). City planning board's denial of site-plan -- application for 28-unit residential project However, the first cause of action should was arbitrary and capricious, as board's be dismissed as time-barred (see, Matter of State Environmental Quality Review Act _i,.. Save the Pine Bush v. City of Albany, 70 (SEQRA) findings relied on six speculative r MI. 193, 203, 518 N.Y.S.2d 943, 512 comments, uncorroborated by empirical evi- i' N.E.2d 526; Matter of A & M Bros. v. dente, regarding adequacy of drainage sys- -` Waller, 150 A.D.2d 563, 564, 541 N.Y.S.2d tern, adequacy of soil testing, and ease of 3';;� _ • 237). emergency vehicle access, while developer's -�'�' ..--',4-'-p. - experts presented comprehensive soil, traffic, 44.4.'-'•.% The respondents' remaining contentions groundwater, it.,,, r_ and drainage studies incorpo- f Y ;t :, are without merit (see, Matter of Corbeau rated into mitigation measures recommended -` Constr. Corp. v. Board of Educ., 32 A.D.2d ,. in Draft Environmental Impact Statement 4`' .` 958, 959, 302 N.'t S.2d 940). '".1.,-;`. w Douglas E. Szulman, New York City, for # 0 T KEY NUMBER SYSTEM appellant. , "f=: 7 .1', [ Crowe, Deegan & Dickson, Glen Cove .'--I- t (Kathleen Deegan Dickson, of counsel: Douglas W. Warden on the brief), for respon- _. dents. LEISURE TIME SALES, INC. v. WARING '` = A' 493 Cite as 398 N.Y.S.2d 493 j "The real problem with this case was 91 Misc.2d 633 that the testator * * * never thought In the Matter of the Application of about what would occur if his wife chose LEISURE TIME SALES, INC., for a to exercise her right of [disclaimer]. It is judgment in the nature Certiorari, no doubt true * * * that if the testa- tor had considered it, the will might have v - been quite different * *. Our job Douglas WARING, James O'Brien, Mar- ; : ; as Judges, however, is not to rewrite wills guerite Amodeo, C. Brown Adams, John but articulate rational rules of law which Bena, Edward Bormann, and George V}•': will hopefully achieve reasonable and just McGuinness, constituting the Zoning .e' r results in most cases." Board of Appeals of the Town of Malta, ' -°;- To the same effect is Matter of Fabbri, 2 County of Saratoga, State of New York, st` ;; N.Y.2d 236, 159 N.Y.S.2d 184, 140 N.E.2d Respondents. ;fes:. 269' Supreme Court, Saratoga County. t'-= Chapter 861, Laws of 1977, was enacted `Lt, into law on August 11, 1977 and repealed Sept. 29, 1977. 4 EPTL 3-3.10 effective one year later, sub- 4 • stituting a new statute, EPTL 2-1.11 to "-» Proceedingwas broughtchallenging 4;, take its place, combining the right to re- action of a municipal challen n .f pounce intestate as well as testamentary zoning board of ap- - • and trust agreement benefits. The new peals in adoptingbybare majority a resolu- _ ;?' j Y a:x- statute provides, among other things, that tion authorizing the granting of a zoning W i .3n the filing of a renunciation under that sec- variance. The Supreme Court, Saratoga 4k s- tion "shall have the effect of accelerating County, Arthur C. Aulisi, J., held that: (1) ',x the possession and enjoyment of subsequent the legislative mandate requiring municipal "fr' ' (subd. [ ]) zoningbodies to refer specified matters to .A. interests * * * " d It is also f'` Provided: "This section shall not abridge the county planning agency prior to taking =Ar. g,'•"14'-' final action is the right of any beneficiary or any other jurisdictional; (2) it is only person to * * release or renounce any when the planning agency disapproves the -- _ property or interest therein arising under proposal or recommends modification there- -,, any other section of this chapter or other of that the applicable statute requires more `2 , statute or under common law" (subd. [h]). than a bare majority of the members of the municipal body in order to take action con- ;Fr ,, [5] The court makes no other comments trary to the county planning agency's re- `-_: regarding the same except to note that it ;�'a• port, and (3) the agency's report on the -.•;p,;k;; may represent a change in public policy and matter in question did not, on its face, - tl � reaffirmation of the common law principle indicate a decision disapproving the propos- ;,1.,? :, that a testamentary beneficiary may not be - al or one approving the same with modifica- .:,� forced without his consent to accept and tion, so that a bare majority vote by the ,,,%'x^ receive a benefit sought to be conferred •�•;'"'": by zoning board of appeals was sufficient to the will. authorize granting of the variance. •-` ` ;' The sisters are entitled to the entire re- Application denied; petition dismissed. •2:5, :,... siduary estate and the provisions of the will :,:�; and the codicil should not be given any .,:,=- effect that would cut down or limit the gifts to them. 1. Zoning 131 .:= Legislative mandate imposed upon mu- nicipal bodies to refer specified zoning mat- r, - ?'/.. W ters to county planning agency prior to o KED NUMBER SYSTEM taking final action on such matters is juris- f T ; dictional; referral to planning agency is '" � condition precedent to final action by mu- '6.. u ,.11,." ‘ .11!'�. ` r 9993 7y, 494 - 398 NEW YORK SUPPLEMENT, 2d SERIES , nicipality on zoning matters specified. 5. Zoning X646 �.- pei ' General Municipal Law § 239—m. Evidence, in proceeding on petition W. _ "/., mu challenging decision of municipal Zoning �' ''-4. Ho 2. Zoning 0=131 board of appeal granting application for :'le - '':4"..;:11:. prc Where county planning agency ap- zoning variance failed to show that grant- .-.. F= .:5'-'; Cat • proves zoning matter referred to it by mu- ing of variance was based upon improper ...1v,ri>x. nicipal zoning body, or fails to act within findings by board. act ' 1" me i is applicable time period, bare majority vote _,:,.4,:r:-•)..0.._,- applicable . by municipal body is sufficient to take final "-.` alu action on proposal without report byplan- Baca , Davies & Krogmann, Glens Falls, t."g;} adc P P P for petitioner. -•-�_ � for ning agency; it is only when planning :+;^i` Arne E. Heggen, Clifton Park, for re- agency disapproves proposal or recommends _4'.. -, spondents. $•-,. - [ modification thereof that statute requires (. 1:*: upc • vote of majority plus one of municipal body ' fer ARTHUR C. AULISI, Justice. `�,?.,-`'- fer in order to take final action contrary to7:; The single issue presented for determine- tsi Pre planning agency report. General Municipal ti tion in this Article 78 proceedingis whether4'...71;:-:• tie: ` Law § 239—m. the action of the respondent Zoning Board ,sty of Appeals als in adopting a resolution by a =�`," ;- S.2, X 3. Zoning 543 P g bare majority of its members (four in favor %< `"' of Where report of county planning agen- three against) was effective to autho- a age cy with respect to application for zoning rize the granting of a variance to the appli- wit variance referred to it by municipal zoning cant Vosburg. It is contended by the peti- • ma, board of appeals was made on printed form tioner that compliance by the Zoning Board 3 -t, fici and did not, on its face, indicate decision of Appeals with the provisions of Section ' •' 31 disapproving proposal or one approving 239—m of the General Municipal Law re- -i• ` 292 same with modification, bare majority vote quired a vote of a majority plus one (at _ Lai by municipal zoning board of appeals was least five in favor) before such resolution age sufficient to authorize granting of variance. could be adopted. mei General Municipal Law § 239—m. Section 239—m of the General Municipal hi- 239 4. Zoning c=,•545 Law provides, in pertinent part, that "In nan any city, town or village which is located in mei Where only indication of county plan- a county which has a county planning board, _. _ ning agency's decision in report transmitted commission or other agency, hereinafter re- r to municipal zoning board of appeals with ferred to as a county planning agency * * -- ; plai respect to proposal for variance submitted each municipal body which has jurisdiction � for' „ to agency by board was marking on printed to adopt or amend zoning regulations, or to deci form in space next to item indicating that issue special permits or grant variances pur- =f= and matter involved no direct count = _ _ Y concern suant to such regulations, shall, before tak- ;; w�," tion • and was returned for local decision, and ing final action on certain of such matters, --`�'; wit; where report, on its face, did not indicate refer the same to such count 5> * * * --,;•�' t� :�;�;- turf decision disapproving proposal or one ap- planning agency." The matters covered are No proving same with modification, statements enumerated in the statute and its applica- :r •1 q l allegedly made by member of staff of plan- bility is not questioned. �"1 •, list ning agency at time report was transmit- Under the provisions of the statute, the -;• . •;,,:..•> . resF ` : •1 ted, that decision constituted recommended countyplanningagency is re required to make - disapproval of proposal, could not alter or q tF :::. -,ti5;:` the a report of its recommendations to the re- _ the change administrative nature of agency's -= , 1ferring municipal body, together with a full fi tw, deci ecision since decision-making function on statement of the reasons for such recom- app referred matters is committed to planning mendations within thirty days after receipt '=r Thu ' ' agency and not to its individual members. of the referred matter. If the planning r ' ' Boa f , General Municipal Law § 239—m. agency fails to act within the thirty da> J ;,; rize f S w.. `' LEISURE TIME SALES, INC. v. WARING 495 '' '.; Cite as 398 N.YS.2d 493 period, or an agreed extended period, the [4] It is urged by the petitioner, how- x, municipal body can act without such report. ever, that certain statements made by a -' ' However, if the planning agency disap- member of the staff of the planning agency f` > 4 proves the proposal, or recommends modifi- at the time the report was transmitted to 'r ' cation thereof, the municipal body may not the Zoning Board of Appeals in effect con- av act contrary to such disapproval or recom- stituted a recommended disapproval of the I. - " mendation except by a vote of a majority proposal. This contention is untenable. By i. plus one of all its members and after the the express provisions of the statute, the • adoption of a resolution stating the reasons decision-making function on the referred • for such contrary action. matters is committed to the planning agen- cy and not to its individual members or [1,2] The legislative mandate imposed ' members of the county planning staff. upon municipal bodies is jurisdictional. Re- Here, the planning agency, after consider- , ferral to the planning agency is a condition ing the Vosburg application, concluded that ,, precedent to final action by the municipali- , the subject matter did not involve a direct - 4, • ties on the zoning matters specified. (Asma • county concern and returned the application • v. Curcione, 31 A.D.2d 883, 884, 298 N.Y. to the respondent for local decision,without S.2d 286, 287; 3 Anderson, American Law taking any action under Section 239-m. ,.4 of Zoning, § 15.16.) Where the planning That this decision was correctly communi- :;;= agency approves the proposal, or fails to act cated to the respondent Zoning Board of • - • ' within the applicable time period, a bare Appeals cannot be doubted. The minutes =- i majority vote by the municipal body is suf- of the latter body, as well as the uncontro- { "` ficient. (Matter of Smithtown v. Howell, verted affidavit of the staff member to c.,:, ` 31 N.Y.2d 365, 377, 339 N.Y.S.2d 949, 957, whom the statements are attributed, amply •:�_�;*`:',,_' 292 N.E.2d 10, 16; General Construction support this finding. Any other statement ' );•` Law, § 41.1 It is only when the planning that might have been made at the time ..!--•-•,...;,• `''. agency disapproves the proposal or recom- could not alter or change the administrative 4nature of the planning agency's decision ; r mends modification thereof that Section K:E. and must be regarded as surplusage or, at e ;,,;;3��, 239-m requires more than a bare majorTty, best, the expression of a personal opinion. ' - namely, a majority plus one of all of the ,-;•; °• members of the municipal body. [5] The remaining contention of the pe- titioner that the granting of the variance r.E;'0.*• [3] In the instant case, the report ofthe was based upon findin b the .:*;•::; Pogs y planning agency was made on a printed 1Zoning Board of Appeals is not supported •;: form which, under the section relating to its by any factual showing and has no merit. - - `_ .-: r -; decision, listed the three statutory options ' ,'",'-' and two non-statutory administrative ac- In view of the foregoing, the application tions, namely: (1) Approved, (2) Approved of petitioner is denied and the cross motion to x 'with modification, 4 Re- of respondents to dismiss the petition is `� � , (3) Disapproved, ( ) 2. s " ;'+; turned for additional information and (5) granted. J••-•'• 7,,- No direct County concern, returned for ~, local decision. Opposite each item in the '- ;t' `',`,,,list.lwas a space and the only marking with 4,respect to the decision appears in the space w _- next to the fifth item on the list. Clearly, 0 sE KEY NUMBER SYSTEM =<,.`'-' c'ne report on its face does not indicate a 1II `s` decision disapproving the proposal or one , • ,aPProving the same with modification. • =•• `' .us, a bare majority vote by the Zoning ?t`" .+ • of Appeals was sufficient to autho- ' the granting of the variance. V.. • >. LCS REALTY CO. v. INC. VILLAGE OF ROSLYN ,7,,•-,:,, ,-;t '. Cite as 710 N.Y.S.2d 605 (A.D.2 Dept. 2000) 605s ,-. ,•. animals possessed without a permit. commercial to residential, and the final -y_ . brdingly, the Supreme Court properly generic environmental impact statement, _ ., • ied the petition and dismissed the pro- for the requisite 30–day period before vil- 4 •.ing• lage acted and adopted zoning law, ren- ci ,.; dered zoning law and comprehensive • '4a' w master plan void. McKinney's General ` O T KEY NUMBER SYSTEM Municipal Law § 239–m. - • r / 2. Zoning and Planning«194.1 rf V Substantial changes between the draft environmental impact statement for vil- 273 A.D.2d 474 lage's comprehensive master plan and the El In the Matter of LCS REALTY final generic environmental impact state- CO., INC., appellant, ment warranted new public hearings. v. INCORPORATED VILLAGE OF Farrell Fritz, P.C., Uniondale, N.Y. ROSLYN, et al., respondents. (John M. Armentano and Timothy J. Hop- Supreme Court, Appellate Division, ldns of counsel), for appellant. = Second Department. Spellman & Walsh, LLP, Garden City, ME MI June 26, 2000. N.Y. (John M. Spellman, John P. Gibbons, Jr., and Kevin M. Walsh of counsel), for r• respondents. Developer commenced hybrid pro- FRED T. SANTUCCI, J.P., LEO F. — eeeding pursuant to article 78 seeking re- McGINITY, DANIEL F. LUCIANO and view of village's adopting a comprehensive master plan and enacting local laws which ROBERT W. SCHMIDT, JJ. ' rezoned an area of village from commercial to residential. and seeking judde- MEMORANDUM BY THE COURT. — — daring that comprehensive master plan In a hybrid proceeding pursuant to and local laws were void and unenforcea- CPLR article 78 to review a determination -bie. The Supreme Court, Nassau County, of the Incorporated Village of Roslyn dat- Davis, J., dismissed the proceeding, and ed July 15, 1997, which adopted a Compre- developer appealed. The Supreme Court, hensive Master Plan and enacted Local Appellate Division, held that village's fail- Laws, 1997, No. 4 of the Incorporated Ire to provide county planning commission Village of Roslyn, and an action for a !hh all of materials which village needed judgment declaring that the Comprehen- io pass a new zoning resolution rendered sive Master` Plan and Local Laws, 1997, ng law and comprehensive master plan No. 4 of the Incorporated Village of Ros- lyn are void and unenforceable, the appeal ':-c`'• Reversed. is from a judgment of the Supreme Court, V:;- Nassau County (Davis, J.), entered March 17, 1999, which dismissed the proceeding. .Zoning and Planning x193 ORDERED that the judgment is re- . Village's failure to provide county versed, on the law, without costs or dis- g commission with all of the mate- bursements, the petition is granted, the { which village needed to pass a new determination of the Incorporated Village ,_" g resolution, includingthe final ver- of Roslyn dated July 15, 1997, is annulled, itt and complete text of proposed new and it is declared that the Comprehensive ''g law to rezone area of village from Master Plan and Local Laws, 1997, No. 4 • _dor i -- - - P117 .1'i f ; . Ali ' 606 710 NEW YORK SUPPLEMENT, 2d SERIES S. of the Incorporated Village of Roslyn are 585 N.Y.S2d 925; see also, Matter of Er, ,,, ,r or void and unenforceable. nalex Const. Realty Corp. v. Bellisst F p P respondent, 256 A.D.2d 338, 681 N.Y.S.2d 298). '.'r Shar€ It is undisputed that the the on lay ;i Incorporated Village of Roslyn (hereinaf-• [2] Contrary to the Village's conten. ,,d not - l ter-the Village), had a duty to comply with tion, there were substantial changes ; ",• Indic the' procedural requirements of General _ ° tween the draft environmental imps Municipal Law § 239—m in order to prop- statement and the final generic environ. ;i `r erly enact its Comprehensive Master Plan mental impact statement, and thus new $" k DeMag • and Local Laws. 1997, No. 4 of the Village, ork. N. - „,,,, which rezoned an area o the Village from public hearings are warranted (cf. Comm u -Hants v. Town of Oyster Bay. a0 A..D._d 639. ' commercial to residential. Amongother �-., provisions, General Municipal Lan § 239— 672 N.Y.S.2d 418). ,,-4v,Thomas m mandates that the Village refer its pro- - r respon posed planning and zoning actions to the p EKEYNUMBERSYSTEM 4 DAVID Nassau County Planning Commission T $ANTUC( ' (hereinafter NCPC) for review and recom- `;GLORIA mendation (see, General Municipal Law ::t•- § 239—m[2], [3]). Furthermore, the Vil- 273 A.D.2d 420 MEMO) lage was required to submit to the NCPC �} i` In an the "full statement of such proposed ae- Yury ABDURAKHM ANON', _'personal tion", including `"all materials required by et al., respondents. '`= Richard F and submitted to the referring body as anH.C.I.R. application on a proposed action, including Svetlana RUL'�SkY, et al., defendants, ' ac order a completed environmental assessment County (B I form" (General Municipal Law § 239— which der Richard Finkelstein, et al., appellants _ m[1][c]). In addition, the General Munici- e7judgment pal Law requires that the NCPC "shall Supreme Court, Appellate Division, is assertec have" at least 30 days, after receipt, to Second Department. -r ORDER consider the materials before making its on the lawrecommendations, if any (see. General Mu- June _6. _000. ed, the co nicipal Law § 239—m[4][b] )• aBserted [11 After referral by the Village, the Individual injured in automobile re action aga NCPC should have been in possession of Pte' shopwhen mechanic started vehicle levered. all of the materials which the Village need- sued corporate out-of-possession landlord { -' ed in order to pass a new zoningresolu- that leased premises to shop and share. -,,,[l,2] 7 tion, including the final version and corn- holders of corporation. The Supreme ppt-0 Center,os1.? plete text of the proposed new zoning law Court, kings County, Barasch, J., denied A 'r and the finalgeneric environmental impact shareholders' motion for summary judg- - ml`es p indivi ,. statement. However, it is clear that the ment. Shareholders appealed. The Su- W, (l . ' 1,i NCPC did not have these materials for the preme Court, Appellate Division held that :-! ders of s k} .I!I I'l;II', requisite 30—day period before the Village shareholders could not be held liable f� W:,'. ed o i acts of corporation. '” mecha I acted and adopted the subject zoning law. I'p .Bch hit '° '( Cinder such circumstances, the Village did Reversed, motion granted, complaint �. -,; k :: I _ holde I�; not comply with General Municipal Law against shareholders dismissed, and re- z.�their en ! II ; i {i § 239—m and, as a consequence, Local maining claims severed. " of lav i � Laws, 1997, No. 4 of the Incorporated jM','an ,t . $ y�' ' ' Village of Roslyn and the Comprehensive i r i . ' • i' i !' g 5 , .- habil '1' `Y Master Plan were improperly adopted and 1. Corporations«215 =1 ;. [} ,; I I are void (see, Matter of Ferrari v. Town of Shareholders cannot be held liable for r• 04 i {€I r( i,' ' Penfield PlanningBd., 181 A.D.2d 149, the acts of the corporation. 404 - .ii 1 1, ','i,1 f �> H•C.1 • t FERRARI v. TOWN OF PENFIELD 925 Cite as 585 N1.YS.2d 925 (A.D.4 Dept. 1992) and others "who have spearheaded at least board's negative declaration of environ- I three collateral proceedings all of which mental significance and grant of subdivi- assail either directly or indirectly the Town sion plat and site plan approval for develop- Board action which is the subject of the ment of professional office complex. Peti- • application for Court approval". tion was dismissed by the Supreme Court, a • Supreme Court did not consider the pro- Monroe County, Affronti, J., and appeal posed settlement in terms of its financial was taken. The Supreme Court, Appellate , impact on the Town, but rather considered Division, Balio, J., held that: (1) an applica- I whether the proposed settlement properly tion involving more than ten acres sought protected non-financial interests such as "Type I" action within meaning of State k = the legitimate environmental concerns of Environmental Quality Review Act, pre- Qry the Town residents. In noting that the eluding issuance of conditional negative • k:'--`, compromise was approved by a simple ma- declaration; (2) negative declaration was t-• , jority vote of the Town Board, the court invalid for failure to notify involved agen- expressed its concern that the Town Board cy; and (3) county or regional board should m swas using its authority to settle actions as have opportunity to review and make rec- `' 'x a vehicle to circumvent the supermajority ommendations on substantially different ma f{ requirement of the Local Law (see, Matter new and revised plans. V:_u1 of Commco, Inc. v. Amelkin, 62 N.Y.2d _ l'e260, 476 N.Y.S.2d 775, 465 N.E.2d 314). Reversed, petition granted, and matter •v`` We agree. remitted. Accordingly, we conclude that Supreme `'''• Court, in the exercise of its sound discre- ;a- tion, properly denied the joint application 1. Health andnvironmec7.-,2-5:11X-2-1),,t for approval of the settlement of the de- ..f. clarator� judgment action. kation for site plan and subdivi- sign plat approval involving more than ten , Order unanimously affirmed with costs.zzi.eres of land sought"Type I" action within w • meaning of State Environmental Quality :4 0 5 KEY NUMBER SYSTEM Review Act, and thus issuance of condition- .-, T / al negative declaration of environmental -= significance was unauthorized__-11'IcKin 181 A.D.2d 149 ney s 191e�seq. Matter of Richard A. FERRARI, William 2. Health and Environment €25.10(5) J. Patton and Branford Realty Corp., Appellants, In proceeding on application for site plan and subdivision plat approval involy- �' ing more than ten acres of land, failure to The TOWN OF PENFIELD notify the Department of Environmental PLANNING BOARD, Conservation during the lead agency desig- - -') and nation process or before negative declara- ,b; Walter Peter, Barbara Power,Jerry Fran- tion of environmental significance was is- cis. James Peters, Ralph Peek, Francis sued rendered negative declaration invalid, Sciabica, and Linda Kohl, as Members in case in which myriad of environmental of the Town of Penfield Planning concerns were raised at the outset. - Board, Respondents. 3. Zoning and Planning €438 Supreme Court, Appellate Division, Fourth Department. Failure to refer to county or regional board application for site plan approval is July 14, 1992. procedural defect rendering any subse- quent approval by municipal agency null Adjacent or nearby landowners corn- and void. McKinney's General Municipal menced proceeding to annul planning Law §§ 239-m, 239-n. r- t 926 585 NEW YORK SUPPLEMENT, 2d SERIES 4. Zoning and Planning 4=438 agree. Thus, the judgment should be re- .-7. designatior. • Applicable statutes contemplate that versed, the petition granted to the extent c• declaration county or regional board review and make of annulling the resolution of approval and spondent v ,11 "' recommendations on site plan application in the negative declaration, and the matter '.lead agenc substantially the same form and content should be remitted for further proceedings *;invalid (see which is before municipal agency for final consistent with this opinion. =' .iv. Flacke, 4 action, and thus, though municipal agency 606, lv. dei 1 should not be obligated to make multiple [1] Because the instant application for t 1025, 469 references on application each time a revi- site plan and subdivision plat approval in- This is r sion is made, county or regional board volved more than 10 acres of land, the ~:, notify an ir. X should have opportunity to review and application sought Type I action within the _{ ,;,., tial (cf., MG make recommendations on new and revised meaning of the State Environmental Quali- County, 1, plans which are substantially different t3' Review Act (SEQRA) (Environmental 224, lv. der. `,- from the original proposal. McKinney's Conservation Law, art 8) and related regu- <f.410, 516 N General Municipal Law §§ 239-m, 239-n. lations (see, 6 NYCRR 617.12[b][6][i]). •• iOnmental The SEQRA regulations do not authorize -.• -set, and the the issuance of a conditioned negative dec- -�iey having t Alan J. Knauf & Associates, P.C. by laxation for Type I actions (see, 6 NYCRR Alan Knauf, Rochester, for appellants. }`'those issue part 617). A conditioned negative declara- ?: ingful. RE Joseph A. Platania, Rochester, for re- tion may be issued only for "unlisted ac- -` dents of B I - spondents. tions" (see, 6 NYCRR 617.2[h], 617.6[h]). . ment and Respondent's declaration indicated at least "` Before CALLAHAN, J.P., and PINE, ..i roe, 159 A BALIO, LAWTON and DOERft JJ. one potentially negative impact and stated denied 77 t ' that "all potentially negative impacts have N.E.2d 874 • BALIO, Justice: been substantially mitigated or eliminated" fhe failure ` by the conditions imposed in the declara- Petitioners are the owners of land adja- _Fused is m c. tion. We conclude that the declaration con- cent to, or across from, a 12-acre parcel .-`J. the to r . situated on the northeast corner of the stituted an impermissible conditioned nega- fi`]nvolved al intersection of State Route 250 and Pen tive declaration in a Type I action and that ..;;::application, brooke Drive in the Town of Penfield. the declaration must be annulled (see, Mat - tification m ter of Shawangunk Mountain Environ- =z.- s They commenced a proceeding seeking to mental Assn. v. Planning Bd. of Town of [3,4] G� annul respondent Planning Board's nega- Gardiner, 157 A.D.2d 273, 276-277, 557 requires th tive declaration of environmental signifi- N Y.5.2d 495). king final. tante and its resolution granting subdivi- •`'lan appro! sion plat and site plan approval for develop- [2] Further, where the application ' .1unty or : ment of a professional office complex on seeks Type I action and the application or -commend this site. That petition was dismissed. the applicant's environmental assessment = • 239-n inc 'c, t On appeal, petitioners contend that the form (EAF) indicates that more than one „'' plications negative declaration must be annulled be- state or local agency may be an "involved e failure cause respondent failed to notify an in- agency" (see, 6 NYCRR 617.2[t]), the agen- _ ,linty or volved agency, the State Department of cy which must approve the application is efect rend Environmental Conservation (DEC), at the required, as soon as possible, to mail the •°4 the mun outset of the lead agency designation pro- EAF (or draft environmental impact state- .titter of I cess (see, 6 NYCRR 617.6[c][1]) and be- merit) and the application to all involved }, `;'Carmel, cause respondent impermissibly issued a agencies and to advise those agencies that .! Matte conditioned negative declaration in a Type I a lead agency must be agreed upon within :fit, 150 1 action (see, 6 NYCRR 617.6[h]); and that 30 days (6 NYCRR 617.6[c][1]). Respon 'tter of . . respondent's approval of the application is dent does not contest petitioners' claim that ., :K, 298 N. procedurally defective because respondent the DEC was an "involved agency" within ., s the failed to refer the revised plans to the the meaning of 6 NYCRR 617.2(t). Re' ;'F , county Monroe County Planning Board (see, Gen- spondent failed to notify the DEC of the = r. t" of tl eral Municipal Law §§ 239-m, 239-n). We subject application during the lead agency `'- . 8ubdivisi, rt.. • • FERRARI v. TOWN OF PENFIELD 927 ,. :-.,' Qte as 585 N.Y.S.2d 925 (A.D.4 Dept. 1992) ' ,,t . ►_ _ •ation process or before the negative for and accepted by the referring municipal f t ', 4, : :tion was issued. As a result, re- body as a completed application". Section : 'ndent was not properly designated the 239-n requires submission of the "applica- -:* -li ',,sd agency and its negative declaration is tion for preliminary and/or final approval" °'`.' : 'd (see, Matter of City of Schenectady of the subdivision plat. In our view, those 4,-:Macke, 100 A.D.2d 349, 475 N.Y.S.2d sections contemplate that the .county or • i ;;iv. denied 63 N.Y.2d 603, 480 N.Y.S.2d regional board review and make recommen- f or Y''1;;., 469 N.E.2d 103). - dations on an'application in substantially 21- :7 < is is not a case where the failure to the form and content which is before the :ae '` ' . an involved agency was inconsequen- municipalagency ;,,,.. a enc for final action. Al- ..a ;:' 'cf., Matter of Congdon v. Washington though a municipal agency should not be �i rii,sN t, nty, 130 A.D.2d 27, 31, 518 N.Y.S.2d obligated to make multiple references on al Y� ; lv. denied 70 N.Y.2d 610,`522 N.Y.S.2d an application each time a revision is made, - 1. , 516 N.E.2d 1223). A myriad of envi- where, as here, the revisions are so sub- ' = 230 NEW YORK SUPPLEMENT,-2d SRRTF,S I I N.Y.2 428 ` it• In sum, as Appellate Division Justice Valente wrote in the course of '_ `' his dissenting opinion, "Having finally disposed of any interest in the ii , estate for an adequate consideration, appellant [Max Katz of Toronto] }. ' to M• should not be permitted to reopen the transaction because subsequent fer events disclosed that he would have a claim as an heir for a deceased r ..; legatee." ., . 2. The order of the Appellate Division should be reversed and the re- I settled order of the Surrogate reinstated, with costs in this court and " pl} in the Appellate Division payable to appellant by Max Katz of Toronto. r S. c ( DESMOND, C. J., and DYE, VAN VOORHIS, BURKE and FOSTER, JJ., concur with FULD, J. no sic FROESSEL, J., dissents and votes to affirm upon the majority opinion at the Appellate Division. Order reversed, etc. bu O 6 CET NUMBER SYSTEM 5• T i 4 ! re: ' •,, stt Wi 11 N.Y.2d 428 _ to D.Wilson THOMAS et aL,Appellants, v. TOWN OF BEDFORD et al., •• Respondents. 6• Court of Appeals of New York. us July 6, 1962 co Action challenging constitutionality of rezoning ordinance. The • Supreme Court. Westchester County, Special Term, James D. Hop- ' kins, J., 29 Misc.2d 861, 214 N.Y.S.2d 145, dismissed the complaint on Y. the merits, and plaintiff appealed. The Appellate Division of the Su- _ preme Court in the Second Judicial Department, by judgment entered January 24, 1962, 15 A.D.2d 573, 222 N.Y.S.2d 1021 unanimously A affirmed, and plaintiffs appealed on constitutional grounds. The Court =`�' of Appeals, Fuld, J., held that town board's action in rezoning 123 acre ..:"..•-• tract from residential to research office use was not arbitrary, where '1 _ di it was adopted after careful study and consultation with experts and3.'. extensive hearings, conformed with comprehensive plan, and imposed re- }�", -- re quirements even more stringent to those applying to residential area. A'i=; '°- pl -' ' re Judgment affirmed. '.:, st do k.; `` la I' I ;., aC s' ` 1 ,aF j '1 ; i 1 i I N.Y.2d 431 THOMAS v.TOWN Or BEDFORD 685. Y''� Cite as 230 N.Y.S.2d 684 =?:. _ • 1. Zoning X610, 616 Local legislative body's judgment in zoning case must be allowed , 5 to control if classification is fairly debatable, and courts may not inter- I 4 "£ fere unless local body's determination is arbitrary. . 11.,. . 2. Zoning «604 " Principles limiting judicial interference with zoning legislation ap- . • ply with equal force to rezoning. n 1 t-.;. 3. Constitutional Law C=93(1) - r Zoning 0=157 p : ' Persons who own property in particular zone or use district have i i ,,,',. no eternally vested right to that classification, and village may amend ha- v sic ordinance so as reasonably to promote general welfare. ;;_, 4. Zoning x154, 682 Town, in zoning case, need not establish need for rezoning, and ;k:.. burden of proving arbitrariness rests upon plaintiffs. r,t :4,: 5. Zoning 0168 -: Town board's action in rezoning 123-acre tract from residential to ,...,..i ; research office use was not arbitrary, where it was adopted after careful - stud} and consultation with experts and extensive hearings, conformed g= P g , - >r with comprehensive plan, and imposed requirements even more stringent Its•- to those applying to residential area. '‘:F''‘,..' 6. Zoning € '168 :3,7-,` Rezoning of 123-acre tract from residential to research office -:t use was not spot zoning, where town board acted in accordance with - ' comprehensive plan. e• ,,e41=1 • - 429 ;' Harold Riegelman, H. H. Nordlinger and James D. Stillman, New York City, for appellants. 4'1'= � 430 Ambrose Doskow, New York City, Edwin H. Uellendahl and Ernest A. Gleit, New York City, for respondents. { r - ` '` 431 FU LD, Judge. ',t' In March of 1960, the Town of Bedford amended its 1946 zoning or- } dinance to rezone certain property from residence 2-A two acres) and }„; , , residence 4-A (four acres) use to an RO (research office) use. The i .•�: plaintiffs, who live in 2-A and 4-A districts adjacent to or close by the ,...> -rezoned area, brought the present action to declare the amendment uncon- ;f .. ; stitutional and void and to enjoin the town officials from acting thereun- •der. The court at Special Term dismissed the complaint and the Appel- _ k late Division unanimously affirmed the judgment. The appeal is taken ;Y' to this court as of right upon constitutional grounds. A ' .�� L 'bx,V is ,� jH .',. .. 686 230 NEW YORK SUPPLEMENT. 2c1 SERIES I I N.Y.2d 431 c The Town of Bedford is situated in northern Westchester County about 38 miles from New York City. Its population has nearly doubled since 1940. About 80 per cent of its land, much of it vacant, is zoned for two- . acre or four-acre residential use; three per cent is devoted to industrial . . • and commercial uses, the remainder to residential uses of less than two `,, : acres. 1 is 432 �;,. The property here involved consists of 123 acres located in Bedford x i, Village, which is in the Katonah section of the town. It has a frontage of about 3,000 feet on Route 22 or Jay Street, the village's main thor- .R? oughfare. Once a single estate, it is now divided into three parcels. One • ,F.. ,- • consists of 37 acres of vacant land bordering on Jay Street and belonging ;=�.. to Ruth Alice N. Halsband, the former owner of the entire tract. The 't'*, 1Y, . second comprises 18 acres owned and operated under a special permit .;Y by Hickrill Chemical Research Foundation, an eleemosynary chemical `' research laboratory founded by Mrs. Halsband and her former husband, now deceased, and headed by her son, Frank Weil. The third contains 68 acres sold by Mrs. Halsband in 1957 to the Harvey School which has v been in existence for some 37 years. Before the town effected the rezoning now challenged, the portion of the property along Jay Street was in a 2–A district and the balance in a 4–A zone. The property surrounding it is for the most part similarly zoned, although there are located nearby the American Legion Club, with swimming pool and picnic tables, the John Jay home, an historical shrine, ' and, about a mile away, the Westfield State Farm, a prison for women. • The subject property is about a half mile from the intersection of Route 22 and the Sawmill River Parkway, about a mile from the Katonah Rail- way Station and not far from the Cross River Reservoir, a part of the New York City watershed system. The new RO classification reflects a type of land use which has become widespread since World War II in suburban sections surrounding New York City and other large metropolitan areas. The Town Planning - ` Board of Bedford and its consultants had initiated plans for such zoning in 1956 and the present property figured in those plans. Partly because the ultimate location of Route 22 was then in doubt, however, no ac- tion was taken in the matter until 1959, when Frank Weil sought to sell ;,., the Hickrill property to Reichhold Chemicals, Inc., for a research and „.it development laboratory. :. This, to cull from the testimony of Mr. Weil, "triggered a refreshed interest in the whole idea of RO zoning". New studies and reports were ; - made and hearings held and in October, 1959 the Town Board amended the 1946 zoning ordinance to establish , , 433 .ter an RO district, and the Planningti4 Board recommended three areas, one of them being the subject proper- : r . ; ty. Considerable opposition developed—part of it based on the incom- ". 1; 1,;1 t. iI I N.Y.2d 434 THOMAS v.TOWN OF BEDFORD 687 Iv l,,r • Cite as 230 N.Y-S.2d 684 '# • t plete status of a Town Development Plan which had been in progress _ 4,, for some years. However, the Town Board did no more than postpone - decision on the matter in order to revise and make more strict the pro- - ' • visions relating to access and area requirements. Finally, on March 8, 1960, after a public hearing, the Town Board unanimously adopted a -� resolution rezoning the subject property for RO purposes, and 23 days - later further limitations in connection with RO uses were approved; the ts,'- Bedford RO classification became the most restricted in the entire cowl- ' €t ty - .4...- The minimum size for an RO development was 25 acres, the build- t:, : ing area being limited to 10 per cent of the lot and the total floor area to ,; 15 per cent. The maximum height was three stories. Setback regula- t Y: tions, including those for parking space, were strict, and parking areas },i' were required to be screened from neighboring properties.fiii'.. ments employing more than 50 people were compelled to provide direct 40 access to a state or county highway. No uses were permitted which 1. wou'. ld result in the dissemination of dust or smoke, in vibration, exces- sive;. ' light, noise or traffic congestion. The Town Board was required to approve all proposed plans and could condition its approval upon adequate ; ; screening and shading to reduce the "emission of artificial light" at night. "2; In short, many of the restrictions upon RO uses were more rigorous than those for 4—A districts. t [1] In any area of even moderate density, comprehensive and bal- : ' anced zoning is essential to the health, safety and welfare of the corn- -4, (Town Law, Consol.Laws, c. 62, § 261; Village Law, Consol. Laws, c. 64. § 175). The task of achieving this goal devolves upon the local legislative body, and its "judgment must be allowed to control" if 'Sthe classification is "fairly debatable".• (Rodgers v. Village of Tarrv- town, 302 N.Y. 115, 121. 96 N.E.2d 731, 733, quoting from Euclid v. 1 Ambler Co., 272 U.S. 365, 388, 47 S.Ct. 114, 71 L.Ed. 303; see, also, •;; Shepard v. Village of Skaneateles, 300 N.Y. 115, 118, 89 N.E.2d 619. ' --;; 620; Town of Islip v. Summers Coal &Lbr. Co., 257 N.Y. 167, 169, 170, ::':; 177 N.E. 409, 410.) In other words, the courts may not interfere un- .'-"' less the local body's determination is arbitrary, and "the burden of estab- lishing such arbitrariness r;., 434 t;,.:-...1,_w:; is imposed upon him who asserts it." (Rodgers -,;;:l.:; •r. Village of Tarrytown, 302 N.Y. 115, 121, 96 N.E.2d 731, 733, . supra.) n: [2, 3] These principles apply with equal force to onin , where .;-4 there is presented the additional problem of adjusting a durable and uni- form zoning pattern to altered conditions, whether local or county. As •• we wrote in the Rodgers case (302 N.Y. 115, 121, 96 N.E.2d 731, 733), - "While stability and regularity are undoubtedly essential to the operation- ''' of zoning plans, zoning is by no means static. Changed or changing ;.,x. conditions call for changed Tans, anpersons who own f g P property in a , .. tom• $QQ 230 NEW- O ,SIIP13vI E.141 1 p.Rms 1 ' �•JV _.v'r� 4+u4 'iV ._ ►A. 1 4 ,t� li�. 1 , L��1 •�'1 .:�' if Vii:• r _ r ,,5. ' particular zone or use district en'o no eternally vested ri ht o that.clas ' ers sifica.tion if the public interest -demands otherwise.-7 Accordingly, the power of a_village to amend.its basic zoning ordinance in. such a way as • -. 2d reasonabl ,to romote the general welfare cannot be questioned.. •„. COT, Y P . : . , . •.'= the '[4]'. In the present case;�t1 plaintiffs-take'th i( osif;oi}:iliailthe . '_' tom enacted a comprehensive oi;ir�g or'dinanee`in 19 fi'which fully'niet, r re l' and still meets, the needs of the community-arid That it May not be amend- :,• ed without a'shovi ing:of:need,based%on financial considerations`Or•�aris- zo5,2. of ; [. ing from changed conditions. At the same time, theydeclare that they ,,,r 89 � ;'f` 89 It have no general objection to an RO classification as-such; but only to the ii fact that it has been placed in the portion of the town selected.- What `='•' %lE 1i the plaintiffs are attempting to do, it seems clear, is to reverse the pre- �. I. sim J• sumption that the ordinance is valid and-place upon the towvn.officials the of 1 burden of proving that_they acted reasonably. 'The'fown; of:course, isnot not required to establish a need for rezoning; the burden'o provin - ., - bitrariness rests upon p ai e ntiffs. ; ane 4 ,'; , 11 [5] The zoning under attack.was reasonable and in accordance with t; nes; a comprehensive plan. It was adopted after careful study and consulta- r,z; gros experts and after extensive tion with -',•' are; hearings at which interested persons were given an opportunity to be heard; even the plaintiffs' own expert T is did not assert that the new zoning failed to follow a comprehensive plan. = Y4. :l - 1 Furthermore, changing conditions completely • !' p y justified the change which ••'w= BL: ;+, was effected. With the enormous and continuing popiiIation growth and { the expansion of business into suburban communities in the-metropolitan r _• J' area, the town planners necessarily realized that increasing urbanization �t'' of the town was inevitable. -Observing `' rs e ,4; ! !, 435 � �.. the trend in the suburbs toward the development of campus-type laboratory and research projects, they i very properly decided that this type of zoning might preserve a fair y_ ` , measure of peace and serenity in their locality in the face of growing de- mands for business and commercial use of vacant land.• '1, To state the matter briefly, by insisting upon a minimum of 25 acres •4.. for a research development and a building area limited to 10 per cent of ''_' �. Ththe land, with provision for setback and screeningrequirements far more stringent than those for 2—A and 4—A districts, the town has effected a --•i•': ;! ” ' balance between the pressure of changing conditions and the preserva- • :, ii tion of the rural atmosphere so much desired by residents of the area. xf ! [6] The plaintiffs' charge of "spot zoning" has been adequately dealt with in Justice Hopkins' careful and thorough opinion at Special • " -'c;: Term, and little need be added.to what he wrote. Such spot zoning, we ' iec have said, is the "process of singling out a small parcel of land for a use - r;• hg classification totally different from that of the surroundingarea, d1,,,• for the =y' secor benefit of the owner of such property and to the detriment of other own- '_'Y Su r f : P f IIS i+ v ,...,, MAY.2d,,436 c�i".. `• PE 1iE T44SANQIr WaN 0n° 9 :,f. .i; Cite as 230 N.Y.S2d 889 • `' cy.I - ears"._ .(Rodgers-vVillage.of_Tarrytown,-302_hi:Y,r115J 123, 96 N.E. 2d 731, 735 supra.) Whether : 7,. _ p. ) 1ie size of_the�"prcel" here involved, ,ir comprising an area of 123 acres;'is•suficient, without more, to exonerate s'< It the town officials from the charge leveled against.them,-.we need not_say. ;.:1; Since the-Town.Board-acted in ac r 4. 1,,- co dance with=a:comprehensive'plan, Tin=•; i - - s`m�gling,� e'lot or the creation:of a:spial irett inthe c er :1,` 1' of a lar_e zone detrofed to a different use will not-be condemned.as-s Rot �-, A, , 1-1' zoning: (See, e.' •, Sh pard-v. Village o anea`teles I N.Y. 115 v l � eP g o , 89 N.E.2d 619, supra; Nappi v. La Guardia, 295 N.Y. 652, 64 N.E.2d ley,, .,,-/".3 . i l; 716.) The vice of spot zoning is its inevitable effect of granting to a --- ' `4 .'. single owner a discriminatory benefit at the expense and to the detriment of his neighbors, without any public advantage or justification. That is not the situation here. As we have already noted, the.-introduction of • ` : x 15; RO zoningwas contemplated aspart of a comprehensive yplan, albeit t P P 1. v' an alteration of the original 1946 plan,to preserve the quiet and spacious- :• �.��:: '','• ness of a community increasingly subject to pressiire from •a rapidly t:: growing population and from business expansion in the metropolitan ::,t2-...,, '' area. °� Y• 4 7 .. The judgment should be affirmed, with costs. e � i• k � ,, DESMOND, C. J., and DYE, FROESSEL, VAN VOORHIS, r. BURKE and FOSTER, JJ., '11, w, concur. i> Judgment affirmed • _ 3 ,•:•,, r w -4-4..b1fy": {- 0 KEY NUMBER SYSTEM Y :r, T -I - :f: ,'f•: 'rR 11 N.Y.2d 436 : f i. -: The PEOPLE of the State of New York, Respondent, v. Robert FASANO, . VI ;;. Appellant. :.= - . ,I,:- The PEOPLE of the State of New York,Appellant, v Salvatore MONACO, 41 :?.• Respondent. lik : tri ' a Court of Appeals of New York. e_ July 6, 1962. `` s 7,. ? , .' Murder prosecution arising out of shooting in course of juvenile ,_ s ,, gang conflict. The Kings County Court, Carmine J. Marasco, J '�z•`'' ., ren- ;�.t�..' .`;.'- dared judgment on verdict convicting each defendant of murder in the =;: •; ,: second degree, and defendants appealed. The Appellate Division of the , ',�f Supreme Court in the Second Judicial Department, by order entered July ,�,• . :', ;j {230 N.Y.S.2d-44 ,,�;, • i''trr Q +44 ;, i' It I : M1 - _ • 'r"I' - ROSANO v. TOWN BOARD OF TOWN OF RIVERHEAD 697 :'4 .1 Cite as 350 N.Y.S.2d 697 Y•. Nil allegedly gross negligent conduct. In New York, punitive damages y�: are awarded to punish a defendant for morally culpable or reprehensi- • 1 4 bly or evilly motivated conduct and to set an example for others (Clevenger v. Baker Voorhis & Co., 19 A.D.2d 340, 243 N.Y.S. 231, affd. 14 N.Y.2d 536, 248 N.Y.S.2d 396, 197 N.E.2d 783; Walker v. 4i, Sheldon, 10 N.Y.2d 401, 223 N.Y.S.2d 488, 179 N.E.2d 497), unlike some .: sister jurisdictions where punitive damages are considered compensa- -.., :: tory in nature (Hartford Acc. & Ind. Co. v. Wolbarst, 95 N.H. 40, 57 -%.. A.2d 151). Since punitive damages in New York are awarded as t punishment against a defendant and as a warning to others, it is self-evident that it would defeat New York's expressed public policy `''`• topermit an insured to avoid the effect of the imposition of punitive v `k P ' damages by passing the burden of payment on to an insurance . company (see American Sur. Co. of N. Y. v. Gold, 375 F.2d 523; Teska �'?- v. Atlantic Nat. Ins. Co., 59 Misc.2d 615, 300 N.Y.S.2d 375; Liability . Insurance-Punitive Damages, 20 A.L.R.3d 343). ; ' [5, 6] In an action against an insurer which has refused to comply with its obligation to defend the insured, the latter is entitled to T recover from the insurer only those expenses he incurred in defense of = the action and may not recover the expenses of an action brought "- against the insurer for its refusal to defend (Grimsey v. Lawyers Tit. F* Ins. Corp., 31 N.Y.2d 953, 341 N.Y.S.2d 100; Doyle v. Allstate Ins. Co., 1 N.Y.2d 439, 154 N.Y.S.2d 10, 136 N.E.2d 484). The record is 4-° insufficient to justify the award for counsel fees and expenses and, ;- therefore, the case should be remitted to the trial court for a determi- nation of that issue. W C S KEY NUMBER SYSTEM T 43 A.D.2d 728 In the Matter of Romeo ROSANO et al., Respondents, v. The TOWN BOARD OF the TOWN OF RIVERHEAD et al., Appellants. • Supreme Court, Appellate Division, Second Department. N Dec. 24, 1973. mak•- ` Proceeding to annul determination denying application for special permit to construct garden apartments. The Supreme Court, Suffolk c.`• _: County, granted the petition and directed issuance and board appeal- ed. The Supreme Court, Appellate Division, held that appeal must be decided on law as it existed at time of appeal, and was governed by r t,,,„,_i zoning ordinance, as amended, prohibiting garden apartments in dis- t. trict in question. ••• Reversed and dismissed. 350 N 1 S 2d-44',2 , I k•` - 698- 350 NEW YORK SUPPLEMENT, 2d SERIES Zoning 0=722 .u. ";,_, `r , that city Appeal from judgment directing issuance of permit for construe- ,„, .: constructs, tion of garden apartments must be decided on law as it existed at ` . needs. f J 0 • time of appeal, and was governed by zoning ordinance, as amended, 2 Judgr prohibiting garden apartments in district in question. .,.A 'w. and perm - 7: Rabin Before HOPKINS, Acting P. J., and MUNDER, MARTUSCELLO, .. SHAPIRO and BRENNAN, JJ. '` ' 1. Municip: MEMORANDUM BY THE COURT. :: ' Wher In a proceeding pursuant to article 78 of the CPLR to annul a =" and perm determination of the Town Board of the Town of Riverhead, dated z' :`' sewer fac no comer: September 5, 1972, which denied petitioners' application for a special ,, permit to construct garden apartments, the appeal is from a judgment '` - 4 a tled t oc of the Supreme Court, Suffolk County, dated December 11, 1972, _ titled to which granted the petition and directed respondents to issue such 'Y�, 2. Mandam permit to petitioners, subject to the establishment of reasonable site ; Municip: plan conditions to be imposed by respondents. .Fu; Althc Judgment reversed, on the law, without costs, and proceeding ,..4., permits f dismissed on the merits. ( : which sev moratoria. The zoning ordinance, as amended on December 5, 1972, prohibits Y modate ti garden apartments in the zoning district in question and, therefore, to remed' the right to the'requested special permit no longer exists. This appeal properly must be decided on the law as it now exists (Matter of Boardwalk & g` which mi Seashore Corp. v. Murdock, 286 N.Y. 494, 36 N.E.2d 678; Matter of `- ,. Dengeles v. Young, 3 A.D.2d 758, 160 N.Y.S.2d 83). ;;, Before W _ and LAT h, 0 KEY NUMBER SYSTEM .`.'' Ti; MEMO ' Ina p 43 A.D.2d 727 • ;_ • compel r M;• permits, P i-,- In the Matter of BELLE HARBOR REALTY CORP., Appellant, v. An- <t. adults drew P. KERR, etc., et al., and the City of New York, Respondents. -;. Queens ( ;i Supreme Court, Appellate Division, Second Department. Judgm 4 Dec. 24, 1973. " directed ;• , r Respor. 1: Article 78 proceeding to compel city and its officials to issue .y qp., plans to i , necessarybuildingapprovals and permits regarding petitioner's con- 't,: enterpris struction of proprietary home for adults. The Supreme Court, Queens :=. inadequa P P Y P q 4', County, dismissed petition and petitioner appealed. The Supreme ;< -_. complain i'':. Court, Appellate Division, held that where petitioner met all require- i5 the stree ments for issuance of approvals and permits, they must be issued, •but 4'. in quest i 11 pf. - - --- - - x 1.;.it,14.%' ` APPLICATION OF DENGELES 83 r . j ' • Cite as 160 N.Y.S.2d 88• , ,,fi , Before BELDOCK, ActingP. ',4:i1: x" J., and MURPHY, UGHETTA, �, x HALLINAN and KLEINFELD, JJ. :L .-443.t-;:a,-9 MEMORANDUM BY THE COURT. ;,, �,..�. .j Plaintiff was taking in wash from a clothesline which ran from the � < ,}" `' window of her third-floor apartment in defendant's building to a clothes pole in the rear yard. The pole snapped and fell to the ground and :t 3 A'- plaintiff, in an effort to avoid being pulled out of the window, sustained - 4= i:'.; ° :;- the injuries for which she brought this action in the County Court, Nas- ; . •,--,-.4,-` „.,4t sau County. The appeal is from a judgment dismissing the complaint at 1 1 `' the close of plaintiff's case. .1.,;40...0,4 y "' Judgment reversed and a new trial ordered, with costs to appellant to }Y 4- r abide the event. _ s, - [1, 2] In our opinion appellant made out a prima facie case. Re- s.a r -i'� r spondent was duty bound to use reasonable care by way of inspection at 3 -' �. !• appropriate intervals to determine whether the pole was reasonably safe — _Y for use. Sizse v. Wegmann, 169 App.Div. 112, 154 N.Y.S. 825. It was ,4;;;,- ,.,,,,,.......4 y d for the jury to say whether or not the failure to use reasonable care con- _ ' X' .s stituted negligence. Fornagiel \Vacholder, 247 App.Div. 305, 308, =E` } A 285 N.Y.S. 1010, 1013, affirmed 272 N.Y. 589, 4 N.E.2d 817. _0..... Y i O T CET NUMBER SYSTEMx #l,•:`.:-.---,-;;;-: s: x3 ;' 4 tea `»7 F;' 3 A.D.2d 758 h` y Application of Chris DENGELES, Gus Smirles, Louis Lambran, Joseph Rottkamp ' and Margaret Rottkamp, respondents, for an order directing John C. # `' Y3�:" Young, Manager and Chief Building Inspector of the BuildingDepartment, i - x '-- Town of Hempstead, New York, to issue a buildingi i ' permit pursuant to pro- ."42: $4 visions of the Building Zone Ordinance of the Town of Hempstead, ap- 7 , ,,,rt.., pellant, pursuant to Article 78 of the Civil Practice Act. ;` t E : - r Supreme Court, Appellate Division, Second Department, 1 --if:- -,n4: € aMarch 11 1957. v` -,..,.p.;. : '- t4f ' ° {Proceedings in the matter of an application for an order direct- '-',.:AK-:- .„ .Ki.,.. ing issuance of a building permit. The Special Term, Nassau County, ha`, - x 1 Misc.2d 692, 148 N Y.S.2d 92, Benjamin Rabin, J J., granted the application, and an appeal was taken. The Appellate Division held - that since appeal had been taken, from order directing issuance of _� ,' building permit, right to permit had not vested, and held that appeal would have to be decided upon law as it now existed, even though in- h'. '~ terim amendment of building zone ordinance had prohibited issuance `t. f '.cif'.• _• • .a 84- 160 NEW Y0RK:SUPPT EMENT, '241BEBIRS . ;T of permit applied for; but held that reversal of order from, ---- - ,;. and - and dismissal of proceeding, would be without prejudice--to any action 1J which applicant might be advised to institute based on ground of will- '`" Apt ful refusal to permit.rant g :x_y. Reversed and proceeding dismissed. y. li Constitutional Law e=3101 - �f. "' leged Municipal Corporations X621.57 = Where appeal was taken from order directing issuance of build- were inpermit, right topermit did not vest, and appeal would have to be .. status g g PP ��- .:�. decided upon law as it existed at time appeal was heard, even though ,.F :.,> S., he interim amendment of building zone ordinance had prohibited issuance e- sue or of permit applied for; but reversal of order appealed from, and dis- . .missal of proceeding, would be without prejudice to any action which rx, KFW;, applicant might be advised to institute based on ground of willful re- - fusal to grant permit. _ ,--., 1. Bas �'# 'iFs. _ in the tion, i Edward M. Kolbell, Hempstead, for appellant. .: -t:;; -.;11.... 2. Bas Harry Rosenberg, West Hempstead, for respondents. ..- " Before NOLAN, P. J., and WENZEL, UGHETTA, HALLINAN tendir and KLEINFELD, JJ. ...._ _' .-• S. Bas 1 MEMORANDUM BY THE COURT. =ntc. no e' i In a proceeding to direct the chief building inspector of the Town j_• 4. Basi of Hempstead to issue a building permit, the appeal is from an order - '.. a rr. - directing issuance of the permit forthwith. , t4 establi Order reversed, without costs, and proceeding dismissed, without 5. Nat costs, and without pre judice to any action or proceeding which re- .:,:f-A' ; spondents might be advised to institute, based on- the grounds that -`,; '<'; casts t appellant willfully refused to grant the permit, and misled and hindered ;' a _ of ides respondents. See Dubow v. Ross, 254'A Div. 706, 3 N.Y.S.2d 862. t-`.. _`* 6. Bast PPP _ : Respondents were entitled to issuance of the permit by the building =`... •,t "a. `=t-- establi inspector as a matter of right when they applied for it and also at the ,. time of entry of the order appealed from. The order appealed from i. ',, 7• Mar was therefore proper when made. However, the right to a permit did • - ` ' -- not vest, and this appeal must be decided upon the law as it now ex- tion o ists. Boardwalk & Seashore Co v. Murdock, 286 N.Y. 494, 36 -- 4,".- Law, t N.E.2d 678. The building zone ordinance, as amended since the entry ,;_,l 8, Bim, of the order appealed from, prohibits the issuance of the permit applied :7 t- •--'Mar ,rti for without application to the board of appeals, which is not a party R' _. to this proceeding. V',. legitin { ia:} ,.7?{ 37'Y �r Mi rb 7 r s. TOWN OF ORANGETOWN.v. MAGEE 21 88 N.Y.2d 41 Cite as 643 N.YS.2d 21 (CtApp. 1996) ` .=LL;' [2] Absent a reasoned explanation for proceedings in accordance with the opinion r�.k r. , fl abandonment of the State Social Services herein. • Department's expressed original reading of ✓/' '14 the regulation at the time of promulgation w " `' 1- and adoption here of a diametrically opposite O EKEY NUMBER SYSTEM t}. x x I. interpretation, the agency's change of posi- T " . tion was arbitrary and capricious and cannot stand. i. : J"From the policy considerations embod- 665 N.E.2d 1061 s ied in administrative law, it follows that 88 N.Y.2d 41 t; ',i' when an agency determines to alter itsTOWN OF ORANGETOWN, Appellant, prior stated course it must set forth its _ -•i ,:,_- reasons for doing so. Unless such an ex- v' '�� : ,$ . planation is furnished, a reviewing court John F. MAGEE et al., Respondents. ` ' " will be unable to determine whether thei•-- -• ,-7 .4.,•4 ,:. Court of Appeals of New York. �- agency has changed its prior interpretation :ra; -. of the law for valid reasons, or has simply April 30, 1996. • "„•-"'”` overlooked or ignored its prior decision i• k: �e.,�iat`- * * *. Absent such an explanation, failure . _• 'n ,:_. • -- � i to conform to agency precedent will, there- Town brought action to compel devel- ,...:.-1/.',-;,-',, ,: i fore, require reversal on the law as arbi- oper to remove temporary building, after ! trary" (Matter of Field Delivery Serv. v. developer's building permit to construct in- f T dustrial buildingwas revoked bytown's Z'= ''•'- +r: Roberts, 66 I`.Y.2d 516, 520, 498 N.Y.S.2d- s • :_ .r f 111,488 N.E2d 1223). building inspector. Developer counter- = a T ; 4.,:titin,:;.. • claimed for reinstatement of permit and for 1,-:•44.11..n;•1',;- .'' ,.� -- �= The United States Supreme Court similarly damages under § 1983. The Supreme - -02111S j held in Gardebring v. Jenkins 485 U.S. 415, Court, Rockland County, Robert J. Stolarik, 430, 108 S.Ct. 1306, 1314, 99 L.Ed2d 515 that J., 156 Misc.2d 881, 594 N.Y.S.2d 951, en- ..??- r1:•47.4'-''' �� Imo an administrative agency's inte retation of tered judgment for developer on its coun- � `': ;-1 -e s- its own regulation is not to be followed if an terclaims, and town appealed. The Su- -t:v:a!-, "alternative reading is compelled by the reg- preme Court, Appellate Division, 215 ,- T. •'¢a ulation's plain language or by other indica- A.D.2d 469, 626 N.Y.S.2d 511, affirmed as • .1.1W-.I ,- ; tions of the Secretary's intent at the time of modified, and subsequently granted town '' s„L the regulation's promulgation" (emphasis leave to appeal with certified question, 218 w supplied). A.D.2d 733, 631 N.Y.S.2d 166. The Court K ,' of Appeals, Simons, J., held that: (1) devel- .. =J For all the foregoing reasons, the order of `�,, oper was entitled to reinstatement of build- )', s' the Appellate Division should be reversed, ing permit, having established vested right __-,.k.M,s; , with costs, and the matter remitted to Su- in• planned construction; (2) developer's s �' ' r preme Court, New York County, with di- § 1983 claim that revocation of building ''. = g y ";fit;' • rections to remand to the State Department '_yrs, permit by town building inspector denied it of Social Services for further proceedings in substantive due process because it was arbi- accordance = j owith this opinion. trary and capricious was ripe for review; (3) developer established that protectable t� KAYE, C.J., and SIMONS, TITONE, property interest existed, by establishing n,T BELLACOSA, SMITH and CIPARICK, JJ., that right to develop land had become vest- r1. concur. ed under state law; (4) evidence supported C.:- trial court's conclusion that inspector's revo- Order reversed, with costs, and matter cation of permit was arbitrary and capri- remitted to Supreme Court, New York Coun- cious because it was without legal justifica- y ty, with directions to remand to the State tion motivated entirely by political concerns; tyrDepartment of Social Services for further (5) actions of inspector could be imputed to W "3. 22 643 NEW YORK SUPPLEMENT, 2d SERIES 88 N.Y.2d 41 ` 88 N.Y.2e town for purposes of § 1983 liability; and of official authorized to decide policy in that ty to de (6) there was no basis to interfere with area. 42 U.S.C.A. § 1983. r..� clearly d § 1983 damages award. 6. Civil Rights«130 halted w Order of Appellate Division affirmed; Amend. In context of land use, § 1983 provides ,----' town Ne certified question answered in the affirma- protection against municipal actions which .'_•; ' fie' violate landowner's rights underjust corn- ..:.: 10. Civil pensation clause of Fifth Amendment or due _,<f. To s} 1. Zoning and Planning«465 process clauses of Fifth and Fourteenth = ant to § Amendments; under the former, claimant - f' � � privation ested •right in development can be ac- must establish that municipal action amount- - Vr ; one act] quired when, pursuant to legally issfled per- ed to a taking without just compensation. ' ' U.S.C.A. mit; landowner demonstrates commitment to U.S.C.A. Const.Amends. 5, 14; 42 U.S.C.A. zi- purpose for which permit was granted by § 1983 1 ' 11. Conn effecting substantial changes and incurring In or substantial expenses to further development; 7. Civil Rights«110.1 51,, ty interes neither issuance of permit, nor landowner's Civil rights claims against municipality 'fir to show r ig substantial improvements and expenditures, are not justiciable under § 1983 until munici- to retain standing alone,will establish such right. pality has arrived at a definitive position on developer issue that inflicts an actual, concrete injury; or local to 2. Zoning and Planning«469 requirement reflects reluctance of courts to ment. U Developer was entitled to reinstatement impose liability upon municipality unless lia- of building permit for construction of indus- bility arises from acts which municipality has 12. Conn trial building, in conformity with zoning ordi- officially sanctioned or ordered. 42 U.S.C.A. Deve Hanes in effect at time of revocation of § 1983. erty inter permit, where permit was legally issued, de- issued a, veloper had sufficiently committed land to 8. Civil Rights «209 ffirights to use authorized bypermitprior to revocation, Substantive due process claim under (, �� under NE and permit was revoked for unlawful reasons. § 1983 challenging land use decision as arbi- unquestic trary and capricious is ripe for review when future au 3. Civil Rights x206(1) there has been final decision: decision must project, a Municipalities are "persons" subject to be final to be reviewable, but it is not neces- tion of suit under § 1983 for deprivation of constitu- sary that landowner pursue administrative U.S.C.A. tionally protected rights caused by actions remedies to determine how regulation in -_ which implement or execute policy state- question applies to property, or that land- 13. Const ment, ordinance, regulation, or decision offi- owner avail himself of state procedures for Due cially adopted and promulgated by municipal determining compensation; finality require- from arbi - - officers. 42 U.S.C.A. § 1983. ment is concerned with whether official au- destructix See publication Words and Phrases thorized to make determination has arrived U.S.C.A. for other judicial constructions and def- at decision that inflicts injury. U.S.C.A. • e, initions. Const.Amend. 14; 42 U.S.C.A. § 1983. 14. Civil 4. Civil Rights«206(2.1) 9. Civil Rights «209 ,zi _ Cons; Zonis Municipality sued under § 1983 may not Determination by town's building inspec- Y ' be held vicariously liable under doctrine of tor revokingdeveloper's building ;'h=` Deve p permit was ,. �;; respondeat superior for employing careless final, and developer's counterclaim under P-4,1, stantive e • suant to tort-feasor; rather, injury must arise from § 1983 seeking damages on ground that rev- _:• spector's acts of municipal officers or employees in ocation was arbitrary and capricious in viola- . V.,= of buildir, course of executing municipal policy or cus- tion of substantive due process was ripe for 11= 'NI: justificatii tom. 42 U.S.C.A. § 1983. judicial review, notwithstanding that develop- `:' •er did not appeal revocation to town zoning .4,..,..--. cal concer 5. Civil Rights«206(3) ? : ' board of appeals; under town's ordinances, ...;;': 15. Civil Municipal liability may be imposed un- inspector was initial decision maker vested r•• Tour der§ 1983 for a single act, so long as it is act by law with exclusive and unfettered authori- yJ,-,;Y' capricious _ j TOWN OF ORANGETOWN v. MAGEE 23 • - 88 N.Y.2d 46 ate is 643 N.YS.2d 21 (Ct.App. 1996) - 1, ` x- ty to decide revocation question, and he violation of substantive due process, could be f =, clearly did so when he revoked permit and imputed to town for purposes of liability h ti'" ` halted work on project. U.S.C.A. Const. under § 1983; town zoning code, which nec- . , Amend. 14; 42 U.S.CA § 1983; Orange- essarily reflected town policy, vested inspec- • i, town, New York, ch.43, § 8.222. tor alone with authority to revoke building „ . , permits, and thus inspector implemented " t 10. Civil Rights«130 policy. U.S.C.A. Const.Amend. 14; 42 • To succeed on claim for damages pursu- . „-i ant to § 1983, claimants must establish de- U.S.C "town A § 1983; Grangetown, New York, . y ch.43, § 8.222. privation of protectable property interest by _ };� one acting under authority of law. 42 16. Stipulations«3 : -?: U.S.C.A. § 1983. ;. Parties to civil dispute are free to chart . 11. Constitutional Law«277(1) their own course and, unless public policy is z i- af fronted, theymaystipulate way controver- In order to establish protectable proper- -,�``' .'` ty interest in building permit, developer had sy is to be resolved or how damages are to ti, to show more than mere expectation or hope be computed without interference by courts. .` 6' to retain permit and continue improvements; • p . ;; 17. Civil Rights«274 it:: developer had to show that pursuant to state 'There was no basis to interfere with . la h. or local law, it had legitimate claim of entitle- = ' - A award of damages to developer who re- :4-.?y,--t;.:, 1. ment. U.S.C.A. Const.Amend. 14. g P P --,- vailed on § 1983 claim against town based on fi K s 12. Constitutional Law«277(1) arbitrary and capricious revocation of build- w ' ... Y'7'> ci Developer established protectable prop- ing permit; parties agreed that damages :A :z , :, erty interest in building permit which town could be measured by implementing Wheeler t issued and revoked, by establishing that formula, and use of Wheeler formula did not a rights to develop land had become vested affront public policy; moreover, town stipu- fWE- it•;,: under New York law moreover, developerbuilding "T pe fated to values for and land before ,,:,.,, •' unquestionably would have received limited K q and after revocation, difference between the �'�ti;`"z�'t�; future authorizations necessary to complete two numbers, the equity ratio and the mar- rY, ,k project, and town engendered clear expects- ket rate of return, and court determined .,�,-,k; ' tion of continued enjoyment of permit. other values based upon the evidence. y U.S.C.A. Const.Amend. 14. , -` 13. Constitutional Law x278(1.3) :t-� .1;-'" Due process assures right to be free •Patrick J. Rohan and John P. Healy, '4'.3i: ;. 1` from arbitrary or irrational municipal actions Orangeburg,for appellant. fir.. t destructive of cognizable property interest. r . - i ;; �Dorfrnan Lynch 8, Knoebel, Nyack (Den- r.-.r.;, ' U.S.CA Const.Amend. 14. � :','-. nis E.A. Lynch and Burton I. Dorfman, of -4 -. 14. Civil Rights 0=130 counsel),for respondents. 4, ryY' ' ' Constitutional Law 0x278.2(2) ' ..;-. Zoning and Planning«469 j OPINIOr OF THE COURT ; ;'`,' M f= - " : Developer successfully established sub- SIMONS,Judge. -r V-.. -1-, stantive due process claim for damages pur- '',' suant to § 1983, based on town buildingin- This appeal involves a zoning dispute in 4 `4••• spector's arbitraryand irrational revocation which the courts below have found that plain- {.._-,.= o building permit, which was without legal tiff Town of Orangetown wrongfully revoked 4.=,...,‘k justification and motivated entirely by politi- defendants' permit to develop real property 1f- in the Town. Defendants have obtained in- cal concerns. U.S.C.A. Const.Amend. 14. - "{, ";; - junctive relief restoring the building permit ' 1-4. :'3. 15. Civil Rights 0=206(3) and an award of substantial damages on a 42 :; Town building inspector's arbitrary and U.S.C. § 1983 cause of action. We now af- , #-- '<, capricious revocation of building permit, in firm. $ -Z4 643 W-'YORIIC SOPEElalfrif2d'SERIES • 88 N'Y.21f•46 ..,''••' a8 r `-• •; .. I -;--- • - ' - '- ' fendants ebtiinterelaimed�tiee'king(l) an order 506, r =a _ Defendant Bradley Industrial Park, Inc.is compelling reinstatement of the-permit,and r • ; 11 the owner of 34 acres of land located in the (2) damages pursuant to-42 U.S.C. § 1983. ' land( 1' Town of Orangetown. It acquired'the prop- After a;bifurcated trial, Supreme"Court dis- .-k : 1 - eruy in 1979 to construct a 1$4,000 'square missed the ceinplaint ind entered s judg- • `=. the r • � Met-industrial building-at an estimated cos£ ment in favor of defena on their counter; •"' .s sN• a v: w �• on a of'-$3`million. -Defendants John and Patrick claims ordering reans[atemen�of the building that � Magee are the shareholders 'of the corpora- permit rind a4:, `ndhmages of$5,137,126, loss tion. In 1980 defendants' plans-for the im- costs and attorne?s fees:"' The Appellate Di- value provement were approved and the Building vision modified the-jua'gment by remitting 9, ;':. lug, 1, - Inspector issued a permit. Defendants be- the question'of attorney's fees and otherwise gan-clearing and developing the site shortly affirmed. It subsequently granted the Town ? r :.. [2] 1 thereafter. The trial court found that defen- leave to appeal to this Court. Our review is `t 1 f ' perm dints spent over $4 million on the improve- controlled in large part by factual findings of -,•• dints menta for thelandand building before work the trial court,- affirmed ,by the Appellate =;; the u No:1 - was halted by the Town.' • , .0 , - Division. , -- revoc: ii ,lii , Although the permit was limited to "land • - ^ 'A4, minat yy clearing, footings and foundations," the - II =r suppo !f courts below determined that the permit en- , `*'' Matte 'a '' i titled defendants to construct- the entire The CPLR Article 78 Claim ' -•_ may, i i a building as long as the subsequent plans for Practi In their first ,counterclaim defendants .;'i, as the the walls, ceilings and electrical-wiring corn- A•y , 44 ; sought reinstatement of their building per- _,' ;-. ' }'{ ported with the plans for the buildingalread sons, t y mit alleging they had a`bested right" in the },- . ` 1 approved by the Town's Building Inspector. f , rights planned construction. .c rights 1 ; As the work on the project progressed, ,I J organized resistance to it developed within [1] In New York, a vested right can be stoaten, the Community. Ultimately, the opposition "" t3' Y� PPo acquired when, pursuant to a legally issued ty witi 1 I became so intense that the Town Supervisor permit, the landowner demonstrates a corn- ,vl'.•,.=,;,; directed the BuildingInspector to revoke the time o� • P� mitment to the purpose for which the permit defendants'-permit and on July 25, 1985 he was granted by effecting substantial changes := ' did so. The Town subsequently amended its and incurring substantial expenses to further ` ' Zoning Code to preclude construction of coin- the development (see, Matter of Putnam Ar- mercial buildings J on defendants' land? At monk v. Town of Southeast, 52 A.D.2d 10, ;;' trial, the Town offered a number of reasons 14-15, 382 N.Y.S.2d 538; see also, People ex Defe 1, ' for the revocation. The court concluded that a caul( rel. Ortenberg v. Baled 250 N.Y. 598, 166 ' i most were not authorized by the Town's ordi- N.E. 339, a 224 Div. 87, 229 N.Y.S. �' damag( it t ji nines and none were supported by the evi- 550; City of Buffalo v. Chadeayne, 134 N.Y. F actions. r dente. It found that the permit was revoked 163 165, 31 N.E. 443 443-44 Matter of •.„.,.. - actions # of then solely to satisfy political concerns. 's Caponi v. Walsh, 228 App.Div. 86, 89, 238 Defendants had erected a temporary build- N.Y.S. 438). Neither the issuance of a per- j,- them st ing for use during the preliminary stages of mit(see, Matter of Sibarco Stas. v. Town Bd., guarana 1 s ;{ construction and after the permit was re- 24 N.Y.2d 900, 301 N.Y.S.2d 637, 249 N.E2d 74" ' tion. 1 ;. yoked, the Town instituted this action to 478; Rice v. Van Vranken, 132 Misc. 82, 229 Sec ti i '1 obtain an order compelling its removal. De- N.Y.S. 32, affd 225 App.Div. 179, 232 N.Y.S. "Eve 6 � ��'s' 1. In addition to the estimated cost of site and water and sewage-lines; and in certain easement '• state: building improvements,the trial court found that negotiations with the water company, defendant usage defendants spent $250,000 on the purchase of gave up rights in a self-contained water system ` t : the original site, approximately $123,000 pur- Cause on the property worth approximately $1 million. t chasing additional acreage to satisfy Town re- - Unite ! , ` quirements for access to public roads; that in 1 „r •3 response to community complaints about high- 2. The facts are set out fully in the decision of JunS(� �, way congestion, defendants spent approximately Justice Stolarik reported at 156 Misc.2d 881, 594 'i. ' any i $250,000 developing an alternate route over a NY.S.2d 951. cured railroad crossing; defendants spent$100,000 for ____ -11'• ' be liar 3`ii • Pi `, _ a-4 TOWN,'OF OIANGETOWN,v. MACES gi c 25 88 NL'Yid 49 Cites 643 N.Y.S.2d 21 (Ct.App. 1996) : 'd, 506,c 255,N. 541, 175 N.E::304; r_People -at.law, suitfix=,:equity,,or:'others proper 3.* :.v. Bales, supra) nor the proceeding for redress"..-,. . - , s ex r+eL Orte�ober;q" pra) . *R. landowner's substantial improvernenta and ` [3_53 Municipalities' are- "persons" sub- expenditures, standing alone,:will establish ject to suit under istion 1983 for-the-depri- the light. ;The Jandownees•,actions.relying vation of. constitutionally-=protette&, rights an:a valid permit.must be so substantial caused-by'actions lv0lement[]bi ex; t the=mamapgi action results in serious ems[]a pdlicy-istat i it;=ordinatice,fieguia. i '" loss rendering tib rimprovenients essentially tion;Or decisions efally''adopted and pro -M - ` valueless (see, People v. Miller, 304 N.Y.'105, mulgated by•iitai offiners (Monefl'v. New 109, 106 N.E2d 34). York City Dept: of&dial Servs.;:-436 U.S. 658, 690, 98 •S.Ct. 2018, 2035-2036, 56 [2] There is no dispute that defendants L.Ed.2d 611; Pembaur v. Cincinnati, 475 permit was legally issued. Whether defen- U.S. 469, 479-480, 106 S.Ct. 1292, 1298-1299, darts had.sufficiently committed the land to 89 L.Ed2d 452). The municipality may not a the use authorized by the permit prior to be held vicar&uslyg9Jiable linden the doctrine revocation is a question of fact and the•deter- .:'; of respondeat superior for employing a care- I= is .nunation of the courts below that they had is less tortfeasor, however...the&:injury mustigii supported by evidence-in the record (see, arise from acts of municipal officers or em- ,- - .Matter of Caponi v. Walsh,-supra; see gener- ployees in the course of executing municipal 1,1 'ally, 1 Anderson, New York Zoning Law and policy or custom(id). Liability may even be "`L Practice § 6.18, at 231 [3d ed]). inasmuch imposed for a single act, as long as it is the +; •, as the permit was revoked for unlawful rea- act of an official authorized to decide policyIlmi' • -,� sons, the revocation resulted in an unconsti- in that area (Pembaur, supra, at 480, 482- . :; tutional deprivation of defendants' property , rights (see, ,P 483, 106 S.Ct. at 1299-1300; St. -Louis v. ,_ eople•v. Miller, supra). Ac- Praprotnik, 485 U.S. 112, 123-124, 108 S.Ct. -t ',` 'rordingly, defendants are entitled to rein- 915, 924-925, 99 L.Ed.2d 107;' see also, Com- ,`,; -statement of the building permit in conformi- er, Municipal Liability Under Section•1983: I •;: ty with the zoning ordinances in effect at the The Rationale Underlying the Final Author- • F`; time of the revocation. ity Doctrine, 44 Vand.L.Rev. 341 [1991]). ,43= [6] In the context of land use, section III 1983 provides protection against municipal w The Civil Rights Claim actions which violate a landowner's rights _ — Defendants' second counterclaim asserted ander the Just Compensation Clause of the a cause of action under 42 U.S.C. § 1983 for Fifth AMendment or the Due Process Claus- ,t damages suffered as a result of the Town's es of the Fifth and Fourteenth Amendments .iii _ to the United States Constitution. Under v� Ctions. Defendants claimed that plaintiff's ti the former, the claimant must establish that .3- otheironi resulted in an unconstitutional taking the governmental action amounts to a taking - property and that the Town denied without just compensation. The Supreme d i. ;them substantive and procedural due process ,''#gixaranteed by the United States Constitu- Court has also identified, although not yet ,;[ on. recognized, a substantive due process claim :- 'i? 0 under- the Fifth and Fourteenth Amend- ySection 1983 provides: ments based upon a regulatory taking, i.e., - ,- 1'1 "Every person who, under color of any regulation of property that,goes so far it has t= "''statute, ordinance, regulation, custom or effectively destroyed the economic value of - �?_ .'fsage, of any State * * *, subjects, or the property (see, Williamson Planning r'rcauses to be subjected, any citizen of the Comm'n v. Hamilton Bank, 473 U.S. 172, a 11- ' Jf. nited States or other person within the 185, 197-200, 105 S.Ct. 3108, 31152116, jurisdiction thereof to the deprivation of 3122-3124, 87 L.Ed.2d 126). f4. ; , t+ y rights, privileges, or immunities se- The trial court rested its decision on a cured by the Constitution and laws, shall third 'i .:a ground that the acts of the Town in be liable to the party injured in an action revoking defendants' permit denied them 1. f 1 ;' 26 643=NEW'YORHSUPPLEMENT,•:2dRSER.IES It :.r gi-..1 .:5. -.? i je 13.tr6_aD88 N.Y2d 49 substantive.-due processof*law because.the 179,•592.1 E2d 787).. Yiist requirei tie- requireme j revocation and subsequent zoning -change fleets-the reluctance-6f88 N.Y.2d the,courts-ta impose decision n were arbitrary and capricious (156 Mis..2d liabilityaipon:a municipality-unless the liabii- how could 881, 893-895, 594 N.Y.S.2d 951, supra; and ty arises from,"acts which the municipalityunnecessa 1 see,.Sputhview Assocs. v..Bongartz, 980 F2d has:offieaally'-sanctioned-or ordered".-(Pemb- ministrati' 84,-, 96,' 102-42d Cir.19923, cert denied sub aur, supra, at 480, 106 S.Ct.at 1298; Monef� . I- nonts S� regulation .lw.�inditriducl Merry supra, at 691;:98 S.C't.at 2038;oie:St.-Avibin or avail it i berg of VL.Bjzvtl. Bd., 0i7.1LS.987, 113 S.Ct. V. Flacice,68 N:Y2d66,15;1505-N.Y.S2d 859, _ mining cog ' 1586, 123 LEd2d153-L19931_Brady i. Town 496 N:E2d 879). • ..c. .' . • V. Bongari of Colchester,'863 F2d 205,215[2d Cir.1988]; -, of the mt a WheelerCity of Pleasant Grove, 664 F.2d The ripeness requirements for just corn- cions the .: 99[5th Cir.1981]; see generally, Stein,Regu- pensation and regulatory "takings" claims ,p tion of th 1: latory Takings- and Ripeness in the Federal differ from claims based upon arbitrary and 4,- (see, Willis Courts, 48 Vand.L.Rev. 1, 80 [1995]).3 This capricious conduct. Under' takings claims f 3122). type of claim challenges a particular land-use the'contention is that the State has taken the I; decision-.-here, the revocation of plaintiff's property for:a governmental purpose or that [9] Th( buildingpermit—as a single decision with its it has gone "too fait" in)(exercising its police w. the requir •+` own co en rather than as one in a power! to regulate ; nsequ ccs, w gul property- and thus de- dies must i p series,of action-:-resulting in a taking (see, prived an owner of all economically beneficial f judicial re, J Harris v. County,of Riverside, 904 F2d 497, use of the property (Pennsylvania Coal Co. ment that. 501,supra). The key factor in such cases is v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, ripe for juc i'. not whether the State was justified in depriv- 160, 67 L.Ed.322; see, Northern Westchester <: ment is cc , ing the in ividualw of his or her property, Professional Park Assocs. v. Town of Bed- ;- authorized but rather whether the State obeyed the ford, 60 N.Y.2d 492, 470 N.Y.S.2d 350, 458 'x• arrived at strictures of the Constitution in doing so(see, N.E.2d 809; French Investing Co. v. City of ' requiremer Weissman v. Fruchtman, 700 F.Supp. 746, New York, 39 N.Y2d 587, 385 N.Y.S2d 5, be exhaust 756[S.D.N.Y.]). 350 N.E.2d 381, cert,-denied 429 U.S. 990, 97 ,_• procedure i' S.Ct. 515;50 L.Ed2d 602). Such claims aredecision m: A not ripe for judicial review until (1) the gov- Ti . d y if the • Plainti s Ripenessernmental entity charged with implementing v- '.4 (Williamso ff Defense f the regulations has rendered a final decision 3119-3120; In contesting the trial court's determina- regarding the application of the regulations Andrew v. i . tion, the Town first contends that the revoca- . „ to the property, and (2) the landowner has ". N.Y.S.2d 2 lion was not final and therefore not ripe for availed itself of the procedures provided by ing Inspect judicial review,until reviewed by the Orange- State law to obtain just compensation (Wil- • r` final decisi town ZoningBoard of Appeals. Defendants, liamson, supra, at 194, 200, 105 S.Ct. at •,,, . requiring o on the other hand, assert that the Building 3120-3121, 3123-3124; Southview, supra, at 1.'.. ".1. review of Y Inspector constitutes a Town official with • 96). Under this type of claim, a decision s, 1 the Zoning final policy-malting authority and that requir- does not become ripe for review unless alter- • g,; - • tion require ing an appeal to the Town Zoning Board of native uses of theroa condition ' , Appeals would impose an impermissible P perty have been consid-Po permissible ex- r' (see, I haustion of remedies requirement on their ered and rejected and it is thus srestablished t ` Patsy q that the landowner has been deprived of its U.S. 496, : j • section 1983 claim, Williamson property. Until that has been done, it is not [7] Civil rights claims are not justiciable clear that a taking has occurred or how"far" 3120-3121 r until the municipality has "arrived at a defin- the regulation goes. .."'s, latory Taki itive position on the issue that inflicts an - Courts, op. actual,,concrete injury" (Williamson, supra, [8] However, substantive due process lin, Section ' at 193, 105 S.Ct: at 3119; Matter of Ward v. claim based on arbitrary and capricious con- ,! es, and Fe i ; Bennett,' 79 N.Y.2d 394, 400, 583 N.Y.S.2d duct, is' subject only to the final decision Whether I 3. Some Federal courts analyze such claims as Riverside, 904 F.2d 497 [9th Cir.1990]; Land- ' tion COnStitt matters of procedural due process(see,Nasierow- mark Land Co. v. Buchanan, 874 F.2d 717, 723 Of range ski Bros. Inv. Co. v. City of Sterling Hgts., 949 [10th Cir.1989]). `, by examinin F.2d 890, 894 [6th Cir.1991]; Harris v. County of - have broad =j i 1 7 TOWN.OF,O tG TOWNSVMAGEE rail 27 88 N.Y:2d 52 Cite as 643 N.Y.S.2d 21 (Ct.App. 1996) a .: - requirement of-the ,Walliamaon test.:• The of local'government:and,the distribution•of ' - • 2 • - decision must be final to be reviewable •m (else power in One locality may;be•quite different .,-,,- how could arbitrariness be judged), but it-is from-that of another: Whether -an official 3-' unnecessary that the landowner pursue' ad- has final aatliority-to take municipal action in ministrative•remedies to determine how•the a-given case is net a queition of fact,.but a c_, .~ regulation iii question applies to the property question,`of Stene: law (Sts---Louis v.'-Pra- ' or avalq,jf'elf=of State procedures for'deter- kit paa,•'at 424;:108 S.Ct.'at 92448`25; It. mining compensation (see, Southview Assocs. Pembaur, supra; at 48g;-1O&S.Gt.'at-1299- r • i''',, v. Bongartz,'supra, at•96-97). If the action 1300; see generally, Steins.op.-cit., at,82). --- ; of the municipalityUnder the ordinances -of- the Town of = is arbitrary and capri- _ f._'t cious, the-remedy for a violation is 3nvalida- Orangetown, the Building Inspector had the - tion of the-regulation and actual damages statutory'authority to effect a revocation of (see, Williamson, supra, at 197, 105 S.Ct. at defendants' building permit (Grangetown, `:' 3122). - N.Y., Zoning Code; ch. 43, § 8222-[1969]). '',' ks ,; ;t [9] There should be no confusion about He was the"initial decisionmaker"vested by law with the exclusive and�.unfettered author- • -� i',the-_ requireme•nt that ad• ministrative reme- - dies must,be-exh•austed in some cases before ity to:decide the question of revocation (see, 4 ae judicial review is available and the require- Williamson, supra, at 193;105 S.Ct. at 3120) Vit= .•::`..ment that an action must be final before it is and he clearly had done so when he revoked _ f _ ripe for judicial review. The finality require- defendants' permit and halted work on the . - went is concerned with whether an official project. The Zoning Board was not autho- P • ' authorized to make the determination has rized to revoke a permit or even participate r` . arrived at a decision that inflicts injury. The in the Inspector's decision to revoke. Its _ ` requirement that administrative review must power was restricted to the review of the `:' ::r be exhausted in some cases relates to the Inspector's final decision. Thus, a determi- ,rt procedure by which a party injured by a nation by the Board was not necessary and 4;decision may seek review and obtain a reme- defendants' counterclaim for section 1983 re- - 'dy if the decision is found to be unlawful lief is ripe for judicial review. ck - -,'•, (Williamson, supra, at 192-193, 105 S.Ct. at - ,'•.` 3119• -3120; see also, Church of St. Paul&St. B T Andrew v. Barwick, 67 N.Y.2d 510, 521, 505 ` Defendants'Section 1983 Claim N.Y.S2d 24, 496 N.E2d 183). If the Build- ------ t y;1 rag Inspector had the authority to make a [10] To succeed on their claim for dam- ages pursuant to 42 U.S.C. § 1983, defer- • final decision revoking defendants' permit, _; �� s'`,requiring defendants to seek administrative dants must establish (1) the deprivation of a __s t'. review of his action by taking an appeal to protectable property interest (2) by one act- _ .. tithe Zoning Board would impose an exhaus- ing ander the authority of law (Parratt v. � _' t �,�:taon requirement on their section 1983 action, Taylor,lor, 451 U.S. 527 1J'4.condition which is generally impermissible 1912- 1913, 68 L.Ed.2d 535, 101 S.Ct. 1908 420). ids. --(lee, Patsy v. Florida Bd. of Regents, 457 [11] The hallmark of property"is an indi- • `.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172; vidual entitlement grounded in state law, ' ' illiamson, supra, at 194, n. 13, 105 S.Ct. at which cannot be removed except 'for cause'" li t 121 n. 13; see generally, Stein, Regu- (Logan v. Zimmerman Brush Co., 455 U.S. ;y„,, • , Takings and Ripeness in the Federal 422, 430, 102 S.Ct. 1148, 1155, 71- L.Ed.2dits `4,, • op. cit., at 15; 1.Sehwartz and Kirk- 265; Parratt v. Taylor, supra; Matter of !;, Section 1983 Litigation: ,Claims, Defens- Deas v. Levitt, 73 N.Y2d 525, 531, 541itfi and Fees § 3.13, at 204-205 [2d ed]). N.Y.S2d 958,-539 N.E2d 1086, cert. denied Whether the Building Inspector's revoca- 493 U.S. 933, 110 S.Ct.324,107 L.Ed.2d 314). '.n constituted a"final decision” of the Town In order to establish a protectable property ". "Orangetown is a matter to be determined interest in the building permit, defendants W t.:•--examining the relevant local laws. States must show•more than a mere expectation or •Y`•e broad discretion to determine the form hope to retain the permit and continue their c- • ri, 11.1.111 28 643 NEW YORK SUPPLEMENT, 2d SERIES " 88 N.Y.2d 52 88 N iif improvements; they must show that pursu- [15] The Town Zoning Code, which nec- The ' ant to State or local law, they had a "legiti- essarily reflects Town policy,vests the Build- < •';-' a't the p i mate claim of entitlement" to continue con- ing Inspector, alone, with the authority to • j• struction (Board of Regents v. Roth, 408 U.S. revoke building permits (Town of Orange- :w- ares? ingly, ; 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed2d 548; town Code, ch. 43, § 8222). The Building mark - ., Sullivan v. Town of Salem, 805 F2d 81, 84— Inspector therefore implements Town policy , < 85 [2d Cir.1986]; Yale Auto Parts v. John- and the Town, by enacting the legislation, ^f''F perlo` ?t 't'. tweer. son, 758 F.2d 54,59[2d Cir.19851). accepted the possibility that he would exer- t };. s .rn. restri (12] Defendants did so in this case by cise this authority in an arbitrary and capri- ; F<< , ' establishing that the rights to develop their cious manner. While the municipality might ; restri land had become vested under State law. not be liable if the Building Inspector acted4::-.. Moreover, as the courts below found, they in a good faith or mistaken understanding of 0.v. 1 [16, unquestionably would have received the lim- the law (see, Brady v. Town of Colchester, _ free t c ited future authorizations necessary to corn- super at 216) or if his act was a random act w public plete the project. On this evidence, the of personal ill will not authorized by the "• the w Town had "engendered a clear expectation of Town (see, Morrell, supra; Pembaur, supra ), how c continued enjoyment" of the permit sufficient that clearly was not the case here. He exer- -° interfi to constitute a protectable property inter ester fi wed his legal authority for political reasons -: York 1 for purposes of a section 1983 claim(Barry v. at the direction of the Town Supervisor. .4 461 1 k Board _ Barchi, 443 U.S. 55, 64, n. 11, 99 S.Ct. 2642, Accordingly, defendants successfully estab- ' 2649, n. 11, 61 L.Ed.2d 365); there was a lished a claim for damages pursuant to 42 'i` 109, 3• "certainty or a very strong likelihood" that U.S.C. § 1983, based on the Building Inspec- - tea' 1` defendants would have completed the project tor's arbitrary and irrational revocation of 4; expres absent the deprivation of due process (see, their building permit. the W. Yale Auto Parts, supra, at 59). =..1 cases [13,14] Having acquired a cognizable 114117public discret property interest, due process assures the rbc defendants the right to be free from arbi- Damages r basis c i. Crary or irrational municipal actions destruc- Finally, the plaintiff maintains that the - should tive of this interest (see, Arlington Hgts. V. damages were incorrectly computed and the Metropolitan Hous. Corp., 429 U.S. 252, 267, award excessive. 97 S.Ct. 555, 564-565, 50 L.Ed2d 450; Southview Assocs., supra, at 96; Brady v. Plaintiffs experts conceded during trial Town of Colchester, supra, at 215). The that defendants had sustained substantial • municipality's authority to regulate zoning damages. Moreover, they agreed that the s, rests upon the valid exercise of its police damages could be measured by implementing power and a decision regulating a landown- the so-called Wheeler formula (see, Wheeler ' er's use of its property offends due process v. City of Pleasant Grove, 833 F.2d 267, 271 ) when the government acts with "no legiti- [11th Cir.1987] [Wheeler III]; see also, 664 .. - s mate reason for its decision" (Shelton v. City F. 99 [Wheeler I], supra; 746 F.2d 1437 .•5 of Coll. Sta., 780 F.2d 475,483 [5th Cir.], cert. [Wheeler II]; 896 F. 1347, 1351 [Wheeler denied 479 U.S. 822, 107 S.Ct. 89, 93 L.Ed.2d IV]). In fact, the parties stipulated to a 41; see, Euclid v. Ambler Co., 272 U.S. 365, number of figures that could be used to - compute the damages under that formula. ;• f 395, 47 S.Ct. 114, 121, 71 L.Ed. 303). The evidence in the record supports the trial In Wheeler, a case remarkably similar to ` -•' court's conclusion that the Building Inspec- this on the facts, the court established a u. tor's revocation of defendants' permit was method for determining the damages sus- 1,' arbitrary and capricious in this case because Wined by temporary governmental interfer- it was without legal justification and motivat- ence with a landowner's beneficial use of , ed entirely by political concerns. The only property. It held that, the loss takes the remaining question is whether his actions form of an injury to the property's potential may be imputed to the Town of Grangetown. for producing income or an expected profit. - TOWN OF ORANGETOWN v. MAGEE 29 88 N.Y.2d 55 (app1996) I Cite�643 11T.Y.S.?d 21 IC '-� V The compensable interest is the return on Implementing that formula,the Town stip- ; P.0 the portion of fair market value that is lost as ulated to values for the building and the land zis a result of the government's action. Accord- before and after taking, the difference be- * ' ' ingly, the landowner should be awarded the tween the two numbers, the equity ratio and k L' market rate of return computed over the the market rate of return. The court deter- T.-...A4:-??i. period of the taking on the difference be- mined other values based upon the evidence 4 ` , f,, ,,. ' tween theproperty's fair value without the and directed the parties to compute the dam- .1:7-3.4=-14-.. ",t,,' , usingthe Wheeler formula and submit 1t restriction and its fair market value with the ages „ ;"-�� �_f restriction (see, 833 F2d 267, 271, supra). their determination. It based its final award ' t„.>x`�-4:-," on those submissions. InasmuchJas the I --...,14.4..: [16,17] The parties to a civil dispute are figures used were either supported by evi- -, _. '' w. ' dence or agreed upon by the parties,there is ; free to chart their own course and, unlessF 1 K , ; public policy is affronted, they may fashion no basis to interfere with the award. , P; , ...rs f the way a controversy is to be resolved or Accordingly, the order of the Appellate rt=iii :. how damages are to be computed without Division should be affirmed, with costs, and ' -"' i•,:, 1.4-:.7- interference by the courts (Mitchell v. New the certified question answered in the affir- ifyt= mative- York Hohn 61 N.Y2d 208,473 N.Y.S.2d 148, ;1,�- K=z•=�' - Hosp., i' . 461 N.E2d 285, Matter of Abramovieh v. r '"�. ,.; e. Board of Educ., 46 N.Y2d 450, 414 N.Y.S.2d KAYE, CJ., and TITONE, BELLACOSA, =-'!_ '' U.S. SMITH, LEVINE and CIPARICK, JJ. " ` 0 " 109, 386 N.E.2d 1077, cert. denied 444 LSr-ii`Si• 845, 100 S.Ct. 89, 62 L.Ed2d 58). While we concur. ,a;:,, express no view on the appropriateness of Order affirmed, etc. - the Wheeler formula to measure damages in •!....14�yw. - s•.s, -s cases such as this, its use does not affront w ::7X-- , n- --'- F public policy and it was within the court's O 5 KEY NUMBER SYSTEM ;tf -'' T- discretion to Compute the damages on the " -� ? "' basis of the formula as the parties agreed it - = should. , `' .?a :•-.5...0,..,... 3 L-' - 3f,fir'' ia s.' I , 1.,...-2.4-.1..: • ti h Com'- =.- rS 176 525 NEW YORK SUPPLEMENT, 2d SERIES 71 M.Y.2d 274 519 N.E.2d 1372 on, where property owner could have dis- -. 71 N.Y.2d 274 covered city's error in issuance of permit `,- by reasonable diligence in examining en- - �In the Matter of PARKVIEW abling legislation. ;4 ASSOCIATES, Appe t, ;r < 3. Eminent Domain X277 i v' Property owner's "taking" claim, aris- :;:i:- CITY OF NEW YORK et al., mg out of city's partial revocation of build- Respondents, - : .�.` ing permit issued in violation of long-stand-and ing zoning limits, was premature until �,.i. f Guitar Citizens, Inc., ' i' property owner applied for variance. U.S. C.A. Const.Amend. 5. -`.y Y+ Intervenor-Respondent. .,. Court of Appeals of New York. ,r"`" jrbJeffrey L. Braun, Hector Torres and '' Feb. 9, 1988. ' Audry Weintrob, New York City, for appel- ' .' lant. sought judicial review 6Peter L. Zimroth, Corp. Counsel (Phyl- Property owners r = of decision of commissioner of building lis Arnold, Pamela Seider Dolgow and Eliz- which partially revoked property owner's abeth S. Natrella, New York City, of coun- 1 - building permit on ground that permit was sel), for respondents. _ erroneously issued in violation of long- ?Robert S. Davis and Karl S. Coplan, ii standing zoning limits. The Supreme New York City, for intervenor-respondent. - Court, New York County, William McCooe, joJeremiah S. Gutman, Arthur C. Silver- - J., dismissed property owner's petition, and man and Leonard Benowich, New York - property owner appealed. The Supreme City, for the New York Society of Archi- Court, Appellate Division, 129 A.D.2d 405, facts and another, amici curiae. 513 N.Y.S.2d 342, affirmed, and property owner brought permissive appeal. The Martin Gallant and Marc Silver, New Court of Appeals, Bellacosa, J., held that York City, for Carnegie Hill Neighbors and city was not estopped from revoking that others, amici curiae. portion of building permit which violated long-standing zoning limits, though proper- OPINION OF THE COURT ty owner had already engaged in substan- BELLACOSA, Judge. tial construction in reliance thereon. Affirmed. We hold in this case involving the height rme . s of a building on Park Avenue in Manhat- tan, anhattan, already constructed in excess of the 1. Zoning and Planning X380, 470 height limitations of applicable zoning pro- - New York City Department of Build- visions, that eestoppel is not available to ings had no discretion to issue a building preclude a governmental entity from dis- permit which failed to conform with appli- charging its statutory duties or to compel cable provisions of zoning law, or not to ratification of prior erroneous implements- revoke permit which had been erroneously tion in the issuance of an invalid building = issued in violation of law. Administrative permit. The rare exception to the unavaila- Code §§ 27-191, 27-197. bility of estoppel against governmental en- tities may not, in any event, be invoked in t� 2. Zoning and Planning X470 this case where reasonable diligence by a City was not estopped from revoking good-faith inquirer would have disclosed 1 that portion of building permit which vio- the true facts and the bureaucratic error. i _aI. lated long-standing zoning limits, though We may not address the additional claim `,• property owner had already engaged in that governmental correction of prior ad- 4-: substantial construction in reliance there- ministrative action, erroneously overriding .. PARKVIEW ASSOCIATES v. CITY OF NEW YORK 177 71 N.Y.2d 280 Cate as 525 N.Y.S.2d 176 (Ct.App. 19U) applicable zoning provisions, constitutes an Map 6b existing in the summer of 1985, f unconstitutional taking inasmuch as there Parkview concluded that a 100-foot bound- is a pending variance application. We thus ary controlled, and its revised building ap- affirm the Appellate Division's order, 129 plication, submitted on July 31, 1985, limit- A.D.2d 405, 513 N.Y.S.2d 342, affirming ed the height of the proposed new building ' the denial of relief to plaintiff. to 19 stories between its property line and Owner-builder Parkview's property, pur- 100 feet from Park Avenue. The portion ` . chased in 1982, is at the southeast corner of the building setback more than 100 feet . of Park Avenue and 96th Street, located from Park Avenue was to rise 31 stories. ;' 90- to 190-feet east of Park Avenue. A The application was approved by the De- portion of the property is within a Special partment of Buildings as conforming with Park Improvement District (P.I.D.) created all zoning requirements on August 12, 1985 f ' by enactment of the Board of Estimate of and, after rereview, a building permit was ' •: the City of New York in 1973. The en- issued on November 21, 1985 by the Bor- abling and authorizing resolution limits the ough Superintendent. There is no dispute height of new buildings in that district to that at the time the permit was issued the 19 stories or 210 feet, whichever is less. Department erroneously interpreted ", The P.I.D. boundary ran uniformly 150- amended Map 6b as changing the boundary , feet east of Park Avenue until, by resolu- on 96th Street to 100 feet. On July 11, ' 1986, however, after substantial construc- d. �� tion of the Board of Estimate on March 3, 1983, the metes and bounds description of tion, the Borough Superintendent of the -'" the P.I.D. was amended, providing in part Department of Buildings issued a stop ; , for a reduction from 150 to 100 feet be- work order for those portions of the build- .. tween East 88 Street to midway between ing over 19 stories within the full 150 feet 4, 95th and 96th Streets. The boundary north of Park Avenue. After review, the Com- ' of this midblock division, pursuant to the missioner of Buildings partially revoked metes and bounds, remained at all times the building permit, consistent with the rs 150 feet. Plaintiffs property was thus stop work order, on the grounds that the Y unaffected by this 1983 change and has Permit, to the extent it authorized a height always been governed by the 1973 original of 31 stories from 100-feet back instead of :'Y enactment. 150-feet back, was invalid when issued. ..: Zoning Map 6b accompanying the March Parkview appealed the Commissioner's 1983 resolution depicted the amended decision to the Board of Standards and z boundary with a dotted line which fell with- Appeals (BSA), which denied the appeal , in a shaded area constituting the existing and sustained the determination of the T P.I.D. A numerical designation of "150", Commissioner. In sum, the BSA found ' r included on earlier versions of the map to that the dotted lines on Zoning Map 6b • show the setback, had been removed and a within the shaded P.I.D., expressly connot- new designation of "100" was inserted ad- ing a reduction to 100 from 150 feet of the jacent to the dotted line. This left no nu- protected area, excluded the 96th Street merical designation along the northern part frontage of plaintiff from any change; that of the boundary. The "150" designation the original resolution with its metes and signaling the retention of the boundary bounds description, which was never °v 4 north of the 95th-96th Street midblock line changed in any event, controlled over the `' was reinserted on a version of Map 6b map depicting the boundaries even if the published to reflect a subsequent resolu- map could be misread; and that the bound tion of September 19, 1985. aryheight limitation applicable to Parkview • Parkview's initial new building applica- ander the metes and bounds description tion, submitted on June 5, 1985, was reject- was and had always been 150-feet east of ed for failure to show compliance with Park Avenue. Jothe P.I.D. height limitation. Based upon Parkview then turned to the courts, es- , , its interpretation of the version of Zoning sentially in an article 78 proceeding, seek- 178 525 NEW YORK SUPPLEMENT, 2d SIRIES 71 N.Y.2d 280 ing to set aside the partial revocation of its a building permit which fails to conform {. building permit. It sought to reinstate the with applicable provisions of law, and that .. r' full permit, arguing that the final BSA the Commissioner may revoke a permit }moi x„ determination was arbitrary and capricious which "has been issued in error and condi- ; or affected by error of law because the tions are such that a permit should not `_ original permit was properly issued; that have been issued" (Administrative Code of its rights pursuant to that permit had vest- City of New York §§ 27-191, 27-197). ;� ;4 ed; that its reliance on the permit caused Since discrepancies between the map and =I substantial and irreparable harm requiring enabling resolution are controlled by the -g3-0-;Fr , r that the City be estopped fromjl revoking specifics of the resolution (New York City . .4' - the permit; and that the partial revocation zoning Resolution §§ 11-22, 12-01), the deprived Parkview of its property without original permit in this case was invalid inas- due process or just compensation. much as it authorized construction within -21 The IAS Judge dismissed the petition the 150-foot P.I.D. above 19 stories in vio- holding that the BSA's determination was lation of New York City Zoning Resolution reasonable and supported by substantial § 92-06 (2 Journal of Proceedings of Board evidence that the building permit was inval- of Estimate of City of N.Y. at 1708 [Cal. id when issued, vesting no rights, because No. 6, Aprj23, 1973], as amended [Cal. the building plans did not comport with the No. 8, Mar. 3, 1983]). Therefore, the sub- metes and bounds description for the P.I.D. sequent BSA action in ratifying the deci- as contained in the controlling original leg- sion of the Commissioner partially revoking islative enactment of the Board of Esti- Parkview's permit had a sound legal basis. mate. The court also held that estoppel Indeed, there was no discretion reposed in was unavailable as a matter of law. Final- these authorities to do otherwise at that ly, the constitutional taking argument was point and on the record before them at that dismissed as premature because Parkview time. had failed to apply for a variance which is a [2] Turning to the next stage of our prerequisite to that claim. The Appellate analysis, we have only recently once again Division affirmed, and this appeal ensued said that "[g]enerally, estoppel may not be by leave of this court. invoked against a municipal agency to pre- Parkview argues that its original permit vent it from discharging its statutory was issued in conformity with a reasonable duties" (Scruggs-Leftwich v. Rivercross interpretation of the zoning map, thus-mak- Tenants' Corp., 70 N.Y.2d 849, 523 N.Y.S. ing it valid when issued; that the principles 2d 451, 517 N.E.2d 1337, citing Matter of ` of equitable estoppel preclude the partial Daleview Nursing Home v. Axelrod, 62 revocation of the building permit even if N.Y.2d 30, 33, 475 N.Y.S.2d 826, 464 N.E. the permit was erroneously issued; and 2d 130; Matter of Hamptons Hosp. &Med. that the City's partial revocation of its per- Center v. Moore, 52 N.Y.2d 88, 93, 436 mit constitutes a taking in violation of due N.Y.S.2d 239, 417 N.E.2d 533; see also, process of law and without just compensa- Matter of E.F.S. Ventures Corp. v. Foster, tion. The City counters that the decision of 71 N.Y.2d 359, 526 N.Y.S.2d 56, 520 N.E.2d the BSA has a rational basis because the 1345). Moreover, "[e]stoppel is not avail- permit was invalid when issued; that eq- able against a local government unit for liftable estoppel is not available to estop a the purpose of ratifying an administrative municipality from enforcing its zoning laws error" (Morley v. Arricale, 66 N.Y.2d 665, when the building permit issued by the 667, 495 N.Y.S.2d 966, 486 N.E.2d 824). In municipality violated those zoning laws; particular, "[a] municipality, it is settled, is and that the petition below failed to state a not estopped from enforcing its zoning claim for an unconstitutional taking. laws either by the issuance of a building [1] There can be little quarrel with the permit or by laches" (City of Yonkers v. proposition that the New York City Depart- Rentways, Inc., 304 N.Y. 499, 505, 109 ment of Buildings has no discretion to issue N.E.2d 597) and "[t]he prior issue to peti- 71 N.Y.2d 284 BORONOW v. BORONOW 179 Cite as MS N.Y.S.2d 179 (ct.App. 1988) tioner of a building permit could not 'con- Accordingly, the order of the Appellate fer rights in contravention of the zoning Division should be affirmed, with costs. laws' " (Matter of B & G Constr. Corp. v. Board of Appeals, 309 N.Y. 730, 732, 128 WACHTLER, C.J., and SIMONS, N.E.2d 423, citing City of Buffalo v. Road- KAYE, ALEXANDER, TITONE and way Tr. Co., 303 N.Y. 453, 463, 104 N.E.2d HANCOCK, JJ., concur. 96). Insofar as estoppel is not available to Order affirmed, with costs. preclude a municipality from enforcing the provisions of its zoning laws and the mis- taken or erroneous issuance of a permit o s KEY NUMBER SYSTEM does not estop a municipality from correct- T ing errors, even where `there are harsh results (Parsa v. State of New York, 64 N.Y.2d 143, 147, 485 N.Y.S.2d 27, 474 N.E. 2d 235; Matter of New York City v. City 519 N.E.2d 1375 Civ. Serv. Commn., 60 N.Y.2d 436, 448- 71 N.Y.2d 284449, 470 N.Y.S.2d 113, 458 N.E.2d 354), the City should not be estopped here from re- Yvette BORONOW, Appellant, yoking that portion of the building permit v. which violated the long-standing zoning Eugene BORONOW, Respondent. , limits imposed by the applicable P.I.D. res- olution. Even if there was municipal error Court of Appeals of New York. in one map and in the mistaken administra- Feb. 11, 1988. tive issuance of the original permit, those factors would be completely outweighed in this case by the doctrine that reasonable Former wife brought action against diligence would have readily uncovered for former husband seeking a declaratory a good-faith inquirer the existence of the judgment that she was entitled to one half unequivocal limitations of 150 feet in the of all property, real and personal, including u •ry original binding metes and bounds descrip- former marital premises, acquired during tion of the enabling legislation, and that marriage of the parties, and imposition of a this boundary has never been changed by constructive trust on marital premises. the Board of Estimate. The policy reasons The Supreme Court, Queens County, Barn- .. which foreclose estoppel against a govern- brick, J., denied former husband's cross �. : mental entity in all but the rarest cases motion to dismiss complaint, and husband thus have irrefutable cogency in this case. appealed. The Supreme Court, Appellate Division, 111 A.D.2d 735, 490 N.Y.S.2d 230, ,,fi • [3]finally, Parkview's claim that the reversed. On former wife's appeal, the City's action constitutes a taking without Court of Appeals, Bellacosa, J., held that: due process of law or just compensation (1) section of Domestic Relations Law does { may not be addressed in this action and at not permit a subsequent and separate liti- this time because Parkview had failed to gation of title questions between ex-spous- apply for a variance (see, Church of St. es after a matrimonial action has been fi- Paul & St. Andrew v. Barwick, 67 N.Y.2d nally determined, and (2) where former 510, 519, 505 N.Y.S.2d 24, 496 N.E.2d 183; wife had a full and fair opportunity to see also, Scarsdale Supply Co. v. Village litigate title-to-property issue in her prior of Scarsdale, 8 N.Y.2d 325, 330, 206 N.Y.S. divorce action and, in fact, raised title issue • 2d 773, 170 N.E.2d 198; Levitt v. Incorpo- in affidavit in divorce action, res judicata rated Vil. of Sands Point, 6 N.Y.2d 269, was correctly applied to bar her subse- 273, 189 N.Y.S.2d 212, 160 N.E.2d 501). quent action seeking declaratory judgment The variance application now pending is, of that a conjugal contract existed entitling course, not affected by our decision today. her to one half of marital estate, including MEMORANDUM DECISIONS 309 N.Y. 730„ 1 Cite as 128 N.E.2d 423 1 provision of article 8 of section 10 of the The Onondaga Trial Term, Ringrose, J., Constitution, establishing tax limitations entered judgment for insureds in the sum of 4. Kra for city school districts, are self-contained $24,898.99, and the insurers appealed. '?u and self-executing, and that challenged The Appellate Division affirmed the judg- rtions of subdivision 1 of section 2701 >� ment. Vaughan, J. P., dissented and voted of the Education Law constitute retrospec- for reversal and for granting a new trial, on .x Live legislation, and that with respect to ground that jury failed to find the amount tax limitations, the only discretionary pow- of the loss to the damaged property. er granted to the Legislature by the Con- ° stitution is to "further restrict" the power The insurers appealed to the Court of of local units to levy taxes on realty, and Appeals, contending that the verdict of the that such negatives the existence of any jury was not supported by any substantial power in the Legislature to relax or soften evidence, and that the Trial Term committed I the tax limits established by the Constitu- error, which should prompt the Court of ii, tion, and that present constitutional tax Appeals to direct a new trial, and that ver- limit of the school district is 1.25 per cent dict rendered under compulsion was one in . of the average full valuation of its taxable which the jury failed to reach the only ;1 realty. question submitted to them by the court, to wit: The value of the loss to the damaged Ettore Mancuso, of Schenectady, for property and that, accordingly, the verdict plaintiff-appellant. should be set aside and a new trial granted. . Abraham S. Clayman, of Schenectady (Orrin G. Judd and Earle K. Moore, of Mackenzie, Smith, Lewis, Michell & , New York City, of counsel), for defendant- Hughes, of Syracuse, for defendants-appel- lants. respondent. ; Melvin & Melvin, of Syracuse, for plain- Judgment affirmed, with costs. tiffs respondents. All concur. Judgment affirmed, with costs. All concur. I ' _ 309 N.Y. 728, 128 N.E.2d 423 4. 14 is Mabel L. SHAW and Robert C. Shaw, doing 2 11 business as Shaw's General Store, 309 N.Y. 730, 128 N.E.2d 423 ,,• Respondents, B. & G. CONSTRUCTION CORP. et al., y` v. Respondents, e HOME MUTUAL FIRE INSURANCE COM- v. H4 PANY et al., Appellants. BOARD of APPEALS of the VILLAGE of f.i. AMITYVILLE and Hallie P. Luce et al., _i. Court of Appeals of New York. the members (later substituted by Rich- i k, July 8, 1955. and W. Gillen et al., as the present mem- ` bers thereof). Appeal from Supreme Court, Appellate - »•ision, Fourth Department, 285 App.Div. Court of Appeals of New York. •i 1> 1015, 139 N.Y.S.2d 302. July 8, 1955. Insureds brought action against insurers Appeal from Supreme Court, Appellate 3.: to recover $20,000 with interest under a Division, Second Department, 284 App.Div. ♦J. fire policy on general store of insureds. .970, 135 N.Y.S.2d 639. ' c- 309 N.Y. 73F MEMORANDUM DECISIONS - Cite as 128 N.E2d 424 ti Proceeding in the matter of the applica- 242 N.Y. 330, 335, 151 N.E. 637; Kopec V. tion of petitioners to annul a decision of Buffalo Brake Beam, etc., Iron Works, 304 ,i Board of Appeals of village denying a cer- N.Y. 65, 71, 106 N.E2d 12; Green Point -= tificate of occupancy for hoppers and a Say. Bank v. Zoning Appeals Board, 281 • .., cement mixing plant in village. N.Y. 534, 539, 24 N.E.2d 319. The prior :k.. • issue to petitioner of a building permit could . { Suf- The Supreme Court, Special Term, not "confer rights in violation of the zoning folk County, D. Ormonde Ritchie,J., en- laws". City of Buffalo v. Roadway Tr. Co., .,. tered an order annulling the decision of the 303 N.Y. 453, 463, 104 N.E.2d 96. - Board of Appeals, and the defendants ..,.'-, appealed. All concur except FROESSEL and VAN ;. ; The Appellate Division affirmed the order. VOORHIS, JJ., who dissent and vote to %•; affirm. zh::'=. Defendants appealed to the Court of Ap- - peals, contending that determination of theme ` ,`r :'•, Board of Appeals that use of the premises 69 as a cement mixing plant violated the zoning '' ` { ordinance and upholding the refusal of the > ,,4 p g 309 N.Y. 733. 128 N.E.2d 424 ,v `� building inspector to grant a certificate of occupancy was reached after a full hearing Edward A. SMITH et al., Plaintiffs- -421..,`_. and was amply supported by the evidence, Respondents-Appellants, and the determination of the Board of Ap- w. . peals was conclusive and could not be an- The COMMUNITY SYNAGOGUE, Defend- ::,-:- milled _,-:nulled by the Special Term in absence of a ant-Respondent, ;-,-1 showing, not present in the case, that, as a •''_t•- _ }' and matter of law, the Board of Appeals acted Harbor i Defendant in an arbitrary. and unreasonable manner Harry T. Thornbury, 7: Acres Realty Corporation, Defendant- ry and abused its discretion, and that erection Appellant-Respondent. -_, of a structure in violation of a zoning ordinance based on a building permit errone- Court of Appeals of New York. ousl}• or wrongfully issued by the building July 8, 1955. , inspector did not vest in the owner any right _ to a special exception, and that village was _ Appeal from Supreme Court, Appellate not estopped from enjoining the illegal use Division, Second Department, 284 App.Div. of such structure. 967, 134 N.Y.S.2d 697. • Edward R. Phillips, of Lindenhurst, for Owners of realty in development brought defendants-appellants. action against synagogue, corporation, and t, building inspector for village to restrain _ Jacob Bendersky, of Amityville (Sydney synagogue from erecting a synagogue and i Hoffman, of New York City, of counsel), community center on certain realty, on for petitioners-respondents. ground that erection of such structure r ir would violate certain restrictions, to enjoin , Order of the Appellate Division and thatcorporation from conveying any other real- of Special Term rey ersed, petition dismissedty owned by it in the development unless l and cletermination respondent Board re- conveyed subject to the restrictions, to instateA with costs in all courts. Therecover damages from corporation, and to 't Board's—denial of the certificate of occupan- enjoin building inspector from issuing a cy cannot be overruled by the courts since building permit to the synagogue. that denial was not arbitrary but based on sufficient proof of violation of a valid local The Supreme Court, Special Term, Nas- zoning ordinance, see Larkin Co.v. Schwab, sau County, Ritchie, J., entered judgment i G • A ZONING BOARD OF APPEALS TOWN OF SOUTHOLD X In the Matter of the Application APPEAL NO. 5003 of • KACE LI, LLC • X MEMORANDUM IN OPPOSITION f TABLE OF CONTENTS Page TABLE OF CONTENTS i INTRODUCTION 1 FACTUAL BACKGROUND 2 POINT I 7 THE 1983 PLANNING BOARD RESOLUTION IS INVALID AND VOID BECAUSE THERE WAS NO REFERRAL TO THE SUFFOLK COUNTY PLANNING COMMISSION 7 POINT II 9 THE 1983 PLANNING BOARD RESOLUTION IS INVALID AND VOID BECAUSE THERE IS NO SEQRA REVIEW 9 POINT III 10 SECTION 100-255 (B) DOES NOT PROTECT A SITE PLAN FROM A CHANGE OF ZONE 10 1 . THE LATER LOCAL LAWS SUPERSEDE THE 1983 APPROVAL 12 2 . SECTION 100-255 (B) DOES NOT GIVE KACE LI, LLC GREATER RIGHTS THAN OTHER LANDOWNERS WITH SITE PLAN APPROVALS 13 3 . KACE LI, LLC HAS NO VESTED RIGHTS 15 4 . ABSENT A VESTING OF RIGHTS, THE ZBA DOES NOT NEED TO REACH AN ANALYSIS OF § 100- 255(B) 16 5 . THE ZONING ORDINANCE EXPRESSLY PROVIDES FOR APPARENTLY INCONSISTENT PROVISIONS 17 6 . THE BUILDING INSPECTOR HAS NO AUTHORITY TO ISSUE A BUILDING PERMIT 18 7 . DELAY, PRIOR LETTERS AND THE PASSAGE OF TIME ARE NOT A BAR TO THE TOWN'S CORRECT APPLICATION OF THE 1985 AND 1989 AMENDMENTS 19 i t F 8 . THE ABSENCE OF PUBLIC WATER MEANS AT BEST A YIELD OF ONE UNIT PER 20, 000 SQUARE FEET, NOT ONE PER 6, 500 SQUARE FEET 20 CONCLUSION 22 J ii n INTRODUCTION This memorandum is submitted on behalf of Joseph and Carol Berardino, David and Donna Campbell, Michael and Nancy Foley, Stephen and Donna Grzesik, Stefan and Norma Grzesik, Ena Mannix, Martin and Doris Pheffer, Kimon and Woodene Retzos, Nelle and Jolyon Fox Stern, Ronald W. Surprenant, Robert and Dorothy Young and John and Anne Walsh, each of whom reside in the immediate neighborhood of the subject Kace LI, LLC premises . FACTUAL BACKGROUND January 13, 1983David E. Kapell, "as agent" for his (Exhibits A and B)* client, Emanuel Kontokosta" submits a site plan for Northwind Village to the Planning Board. The premises were a 17 . 1 acre parcel on the southside of County Road 48, east of the San Simeon Nursing Home. The premises were then in Zoning District M Light Multiple-Residence District. The M District allowed 1 multiple dwelling per 6,500 square feet of lot area. One hundred eight ( 108) multiple dwelling units were proposed on a site plan dated May 11, 1982 . April 18, 1983 The Planning Board minutes recite an (Exhibit C) inability to inspect the premises because of heavy growth, and request a long form EAF. May 2, 1983 David E. Kapell, "as agent, " prepares, (Exhibit D) signs and submits an EAF for " 108 condominium units . " Among other things the EAF notes an anticipated 50 "vehicular trips generated per hour" and removal of 17 acres of vegetation. June 1, 1983 The Planning Board refers the site plan (Exhibit E) to the Building Inspector for "certification. " June 6, 1983 James Monsell, as Superintendent of (Exhibit F) Public Utilities, Village of Greenport, requests information concerning water supply and sewer service from Mr. Kontokosta for 122 units on 60 acres . July 11, 1983 The Planning Board approves the site (Exhibit G) plan. No drainage plans were submitted or approved. * All Exhibits are attached as a separate Appendix. 2 S { c No applroval for public water or public sewer was granted. No declaration under SEQRA was adopted. No County Health Department approval was in the record or existed. No referral to the Suffolk County Planning Commission was made, although then (and now) required by state law. July 18, 1985 The Village of Greenport denied sewer (Exhibit H) and water service to Northwind Village. December 30, 1986 Victor Lessard, the late Building (Exhibit I) Inspector, sent a letter to Mr. Kontokosta stating, "Your application for a 4 Townhouse unit is ready for issuance of a permit" subject to water and sewerage approvals from Greenport. May 20, 1987 Emanuel Kontokosta, Kace Realty Co. and (Exhibit H) (see above) Kace Construction Corp. but NOT KACE LI, LLC, sue Village of Greenport in federal court to avoid payment of "backbone" fees as precondition of water or sewer service to Northwind Village. January 10, 1989 The Town Board enacted Local Law No. 1 (Exhibit J) of 1989 which provided, among other things, the following: A. The M Light Multiple-Residence District was repealed. B. The subject 17 acres was rezoned to Hamlet Density (HD) . C. In distinction to the M District which did not list two-family dwellings as a permitted use, in the new HD District one two-family dwelling per lot was allowed. D. The allowable yield in HD for multiple residences was changed: instead of oneunit per 6,500 square feet, the allowable yield was reduced to one unit per 10, 000 square feet if both publiciwater and sewer are hooked up. '3 \__ ' i 1 1 Here there is no public water, according to the ZBA record. Therefore, the Town Code allows only one unit per 20, 000 square feet. E . In the HD District, any multiple dwelling requires a ZBA special exception approval. § 100-42 (B) . F. The ZBA special exception approval must precede the Planning Board's site plan review. § 100-254 (B) (3) (a) . G. Any review of a new site plan on a parcel with an existing site plan requires withdrawal of the prior site plan. § 100-254(B) (5) . H. An approved site plan is valid for 3 years . § 100-255(A) . I . A site plan approved prior to January 10, 1989 is also "valid for a period of three (3) years from [January 10, 1989, the date of enactment of Local Law No. 1 of 1989 ] , " and the property owner is protected against any loss of the three ( 3) years by the provision that "this period will begin when all governmental approvals have been obtained. " March 29 , 1990 Bennett Orlowski, responding to an (Exhibit K) inquiry from the Greenport Village Utility Company advises Mr. Kontokosta that "written confirmation from the Village of Greenport and the Suffolk County Department of Health Services" advising the availability of public water and sewer is required, as well as Planning Board approval of drainage and grading plans and the parking layout. April 4, 1990 Mr. Kontokosta responds to Mr. Orlowski, (Exhibit L) disagreeing with each point. April 10, 1990 Mr. Kontokosta' s lawyer asks Mr. (Exhibit M) Orlowski to "rescind your letter of March 29 , 1990 . " February 5, 1996 The Kontokosta federal suit is settled (Exhibit H) (see above) with a written document acknowledging 4 "there is not sufficient sewer capacity available to service plaintiffs ' project, " the Village of Greenport is given an additional four (4 ) years to work out the New York State DEC obstacles to providing 8, 640 gallons per day of sewer capacity for Northwind Village, each party agrees as of February 5, 1996 the Village now has sufficient capacity to supply water to Northwind Village, and the Kontokosta parties, it is then agreed, are given another three ( 3) years "to elect to execute contracts for water and sewer services" when both are available. November 16, 2000 Kace Development Corp. submits four (4) (Exhibits N, 0, building permit applications, each for P and Q) four dwelling units noting that the plans are the 1983 site plan and the zoning district is M. December 6, 2000 The four building permit applications (Exhibit R) are disapproved by Edward Forrester, noting need for ZBA special exception approval . - July 30, 2001 On a further review requested by Mr. (Exhibit S) Kontokosta' s attorney, the Building Inspector, Edward Forrester, issues a second disapproval letter, noting need for both a ZBA special exception approval and a Planning Board site plan approval . August 8, 2001 Mr. Kontokosta's attorney, Matthew (Exhibit T) Pachman, advises Mr. Forrester that Mr. Forrester may have overlooked that the Planning Board granted approval for multiple dwellings in 1983 and "not withstanding this approved site plan" the applicant now wants to change its building permit application to "two- family dwellings . " August 9, 2001 Edward Forrester advises Mr. Pachman (Exhibit U) that only one two-family dwelling per lot is allowed in HD under § 100-42 (A) . August 10, 2001 Kace LI, LLC submits building permit (Exhibit V) application for multiple two-family 5 dwellings using the July 11, 1983 site plan for multiple dwellings . August 13, 2001 Edward Forrester disapproves the August (Exhibit W) 10, 2001 building permit application, ' noting only one two-family structure is allowed "per lot" in the HD District. August 13, 2001 Kace LI, LLC submits this application (Exhibit X) to ZBA for an "interpretation of denial of building permit by Building Inspector. " The application includes an attachment. That attachment cites § 100-255(B) for the assertion that the 1983 site plan is still valid and that the Building Inspector should issue a building permit for multiple two-family structures . That attachment dated August 13, 2001 concludes "SINCE THE SUFFOLK COUNTY WATER AUTHORITY HAS NOT YET ISSUED ITS APPROVAL, THIS PERIOD [the three years under § 100-255 (B) ] WAS NOT YET COMMENCED. " September 20, 2001 ZBA holds initial hearing on this (Exhibit Y) application. September 20, 2001 ZBA receives a letter from Bennett (Exhibit Z) Orlowski in which Mr. Orlowski advises that the two-family project requires site plan approval, SEQRA review, referral to the County Planning Commission and approval (of the curb cut) by the County DPW. 6 POINT I THE 1983 PLANNING BOARD RESOLUTION IS INVALID AND VOID BECAUSE THERE WAS NO REFERRAL TO THE SUFFOLK COUNTY PLANNING COMMISSION The Planning Board was required in 1983 to refer this site plan application to the Suffolk County Planning Commission because the KACE LI, LLC 17 acres are within 500 feet of a county road, as well as a municipal boundary. The controlling statute then and now is New York General Municipal Law § 239-m(3) which in pertinent part states : 3 . Proposed actions subject to referral . (a) The following proposed actions shall be subject to the referral requirements of this section, if they apply to real property set forth in paragraph (b) of this subdivision: * * * (b) The proposed actions set forth in paragraph (a) of this subdivision shall be subject to the referral requirements of this section as they apply to real property within five hundred feet of the following: (i) the boundary of any city, village or town; or * * * (iii) the right-of-way of any existing • or proposed county or state parkway, thruway, expressway, road or highway . . . . The effect of the failure to refer to the Planning Commission is that the Planning Board had no jurisdiction to adopt an approval resolution on July 11, 1983 . In Ernalex Construction Realty Corp. v. City of Glen Cove, * 256 A.D.2d 336 (2d Dept. 1998) , the Appellate Division stated that the "failure to comply with the referral provisions * A copy of each case cited herein is included in the Appendix. 7 of the statute [§ 239-m] is not a mere procedural irregularity but is rather a jurisdictional defect involving the validity" of the ,July 11, 1983 resolution. In Leisure Time Sales, Inc. v. Waring, 91 Misc.2d 633 (Sup. Ct. 1977 ) , the Court held that "referral to the planning agency [Suffolk County Planning Commission] is a condition precedent to final action by the municipalities on the zoning matters specified. " In LCS Realty Co. , Inc . v. Village of Roslyn, 273 A.D.2d 474 (2d Dept. 2000) , the Appellate Division said that the "consequence" of the failure to refer is to render the July 11, ' 1983 resolution void. 8 . POINT II THE 1983 PLANNING BOARD RESOLUTION IS INVALID AND VOID BECAUSE THERE IS NO SEQRA REVIEW In 1983, the Town Code contained Chapter 44, Environmental Quality Review, which required compliance with SEQRA. In 1983 (and now) SEQRA classified as Type I any site plan application involving 10 or more acres . SEQRA at 6 N.Y.C.R.R. § 617 .4(b) ( 6) (i) . Failure to conduct a SEQRA review under these circumstances renders the site plan approval void. Ferrari v. Penfield Planning Board, 181 A.D.2d 149 (4th Dept. 1992 ) . An examination of the Planning Board' s files reveals mere receipt of an EAF. There was no "hard look. " There was no classification of type. There was no declaration. Therewas not even a lip service attendance to SEQRA. 9 POINT III SECTION 100-255(B) DOES NOT PROTECT A SITE PLAN FROM A CHANGE OF ZONE On July 11, 1983, the subject premises were zoned M • Light Multiple-Residence District. On July 16, 1985, the Town Board enacted Local Law No. 11 of 1985 which changed multiple dwelling density in the M District so that the 1983 allowance of one unit per 6,500 square feet where public water and sewer were provided was changed to one unit per 10, 000 square feet. If no public water and sewer, the 1983 standard of 9, 000 square feet per unit was increased to 20, 000 square feet. On January 10, 1989 , the subject premises were rezoned to Hamlet Density. See § 100-21 . The January 10, 1989 change of zone modified the Town Code in the following additional respects : A. The allowable density for a multiple residence served by both public water and public sewer was changed and decreased: instead of one unit per 6,500 square feet, the new allowable yield was one unit per 10, 000 square feet (see Density and Minimum Lot Size Schedule for Residential Districts) ; B. A two-family dwelling was now permitted in HD at a density of one ( 1) per 40, 000 square foot lot if served by public water or one ( 1) per 20, 000 10 square foot lot if served by both public water and public sewer (S 100-42(A) (2) ) ; C. One -- not more -- two-family dwelling is allowed per lot, either 40,000 or 20, 000 square feet (§ 100-42(A) ) ; D. A multiple residence not served by public water and public sewer requires 20, 000 square feet of lot area per unit (see Density and Minimum Lot Size Schedule for Residential Districts) ; E. A multiple residence requires ZBA special exception approval. § 100-42(B) ( 1) ; F. The ZBA special exception must precede site plan review by the Planning Board. S 100-254(3) (a) ; and G. Review of a new site plan on a parcel for which a prior site plan was approved requires withdrawal of the prior site plan. § 100-254(B) (5) . On May 15, 1995, the Town Code was amended again to provide that the Building Inspector is prohibited from issuing any building permit for any structure without a determination from the Planning Board on "whether a site plan or an amendment thereto is required. " § 100-253(A) . That section also requires "all necessary approvals and permits as may be required by other public agencies" to be presented to the Building Inspector before issuing a building permit. 11 The Building Inspector cannot issue any building permit here for the following reasons : 1 . THE LATER LOCAL LAWS SUPERSEDE THE 1983 APPROVAL. No section of the Town Code protects Kace LI, LLC or any other landowner from a change of zone or later amendment of the zoning regulations which renders the prior site plan approval useless . In New York, according to the New York Court of Appeals, "persons who own property in a particular zone or use district enjoy no eternally vested right to that classification" and the "Town, of course, is not required to establish a need for rezoning. " Thomas v. Town of Bedford, 11 N.Y. 2d 428 ( 1962) . The effect of the July 16, 1985 and January 10, 1989 amendments apply to every landowner in the Town because a) the Town Board did not allow any exceptions (as in § 100-12, for example, which excepts a long list of subdivisions) ; b) the Town Board expressly enacted a provision, § 100-23(A) , prior to 1983 which states that "following the effective date of this chapter . . . no land [shall be] used for any purpose or in any manner except in conformity with all regulations, requirements and restrictions specified in this chapter for the district in which such . . . land 12 is located" and c) the later enacted local laws supersede any prior zoning enactment and any mere Planning Board site plan approval issued under those prior regulations . In Rosano v. Town of Riverhead, 43 A.D.2d 728 (2d Dept. 1973) the Appellate Division faced the exact same issue: Rosano has a site plan approval for an apartment complex; the Town Board amended the Town Code; the amendment established different rules for apartments; the Appellate Division held "the right to the requested special permit no longer exists [because the Court must apply] the law as it now exists . " See also Application of Dengeles, 3 A.D.2d 758 (2d Dept. 1967 ) . 2 . SECTION 100-255 (B) DOES NOT GIVE KACE LI, LLC GREATER RIGHTS THAN OTHER LANDOWNERS WITH SITE PLAN APPROVALS . Section 100-255 (B) enacted in 1989 gives a landowner with a valid site plan approval the same three (3) years to build out its project as a landowner receiving a site plan approval after January 10, 1989 . By January 10, 1989 , the Kace LI, LLC 1983 approval had been void for almost four (4) years - - since July 16, 1985 when the Town Board changed the density provisions . 13 Section 100-255 (B) does not give any landowner greater rights than similarly situated landowners, i.e. , other persons with valid site ' plan approvals . Kace LI, LLC in 1989 did not have a valid site plan approval. Its 1983 approval was invalid. The obvious intent in enacting S. 100-255(B) was to equalize the rights of those with earlier valid approvals to those with site plan approvals after January 10, 1989 . The function of the last sentence of § 100- 255 (B) is not to exempt and revive pre-January 10, 1989 invalid site plans . No part of either § 100-255(A) or § 100- 255 (B) can be read as a protection against either a previously enacted (July 16, 1985) or later enacted (January 10, 1989 ) local law. The sole function of the last sentence in § 100-255(B) is to give those pre-January 10, 1989 valid and still buildable site plans the exact same status as a landowner receiving site plan approval under the new Article XXV, which required all other agency approvals prior to Planning Board site plan approval (see § 100-255(A) ) . If the Town Board meant to say that § 100- 255 (B) could extend and revive an invalid site 14 plan approval for almost 20 years and exempt it altogether from later enacted regulations which change the rules for development on the prior approved parcel, the Town Board would have said s that. Neither a mere site plan approval nor any other permit gives a property owner those rights . Kace LI, LLC would need a special law serving its needs only. None exists . Because the later enacted local law doctrine applies one does not even reach in an analysis of the Kace LI, LLC matter the application of § 100- 255(B) at all: the site plan is void because no rights vested to protect it and § 100-255 (B) does not act to vest rights . - 3 . KACE LI, LLC HAS NO VESTED RIGHTS. The Zoning Ordinance at § 100-23(D) has its own statutory vested rights regulation. Kace LI, LLC has no claim to vested rights under that provision. A mere Planning Board site plan approval followed by a struggle with the Village of Greenport, not the Town of Southold, does not vest any rights . Kace LI, LLC also has no claim to vested rights under New York law because to acquire vested rights a landowner needs both a valid permit and completion of substantial improvements 15 under the valid permit. Town of Orangetown v. Magee, 88 N.Y. 2d 41 ( 1996) . Kace LI, LLC has neither. Kace LI, LLC may not claim that the Town of Southold in any manner delayed acquisition of vested rights prior to July 16, 1985 or January 10, 1989 . There is no factual basis for such a claim. 4 . ABSENT A VESTING OF RIGHTS, THE ZBA DOES NOT NEED TO REACH AN ANALYSIS OF § 100-255 (B) . The Code change on July 16, 1985 and, again, on January 10, 1989 and the enactment of new regulations at each time prohibiting the prior 108 unit development, as a matter of local law (§ 100- 23 (D) ) and common law (see ¶¶ 1, 2 and 3 immediately above) , are the end of any analysis here. One needs 10, 000 square feet of lot area as of July 16, 1985 . Kace LI, LLC claims a yield at 6, 500 square feet per unit. The claim is without a legal basis . One needs a ZBA special exception as of January 10, 1989 . Kace LI, LLC has none. One needs a valid Planning Board site plan resolution. Kace LI, LLC does not have that: there was no referral to the Planning Commission, there was no attendance to SEQRA, there is no 16 public water, there is no evidence in this record of any public sewer hookup and the site plan has been void since July 16, 1985 . Kace LI, LLC was subject to the change of law on July 16, 1985 and on January 10, 1989 and there is no argument available to avoid that point. Accordingly, Kace LI, LLC lost its 1983 approval 16 years ago, not in August 2001 . The Kennedy v. Zoning Board of Appeals case handed up at the September 20, 2001 ZBA hearing does not even apply either factually or legally here. In that case there was a land use. In the Kace matter there is a vacant lot. A vacant lot is never a "use, " much less a nonconforming use. Kennedy did not address the effect of enactment of a later local law which is the dispositive issue here. Accordingly, the holding in Kennedy is irrelevant to both the facts and the law here. 5 . THE ZONING ORDINANCE EXPRESSLY PROVIDES FOR APPARENTLY INCONSISTENT PROVISIONS. If one assumes for argument's sake that one can even reach an analysis here of § 100-255(B) and if one further assumes § 100-255(B) is inconsistent with § 100-42, the Code provides the method of analysis to be applied: § 100-11 . Interpretation and conflicts . 17 r A. Where a provision of this chapter conflicts with or imposes a different requirement from any other provision of this chapter, the provision or requirement which is more restrictive or which establishes the higher standard shall govern. This quoted language was in the Code in 1983, 1985, 1989 and now. No matter what Kace LI, LLC argues, Kace LI, LLC cannot make the "more restrictive" 1985 and 1989 amendments go away or not apply. And it should be noted that § 100-255(B) is not in conflict with § 100-42, if one applies correctly the legal doctrine of the later enacted local law. 6 . THE BUILDING INSPECTOR HAS NO AUTHORITY TO ISSUE A BUILDING PERMIT. The Building Inspector is required to use the Zoning Ordinance in effect when he issues a permit. The Ordinance in effect for 16 years now prohibits issuance of a permit for this site plan because a) the Planning Board approval was invalid on July 11, 1983; b) the Planning Board approval was for a different project from what the July 16, 1985 and January 10, 1989 Ordinance would allow; c) the landowner has no vested rights; d) the Building Inspector must, in order to issue a building permit, have a determination from the Planning Board under S. 100-253(A) ; and e) the landowner still does not have the "other agency" 18 approvals, assuming points a) , b) , c) and d) were not enough. • 7 . DELAY, PRIOR LETTERS AND THE PASSAGE OF TIME ARE NOT A BAR TO THE TOWN'S CORRECT APPLICATION OF THE 1985 AND 1989 AMENDMENTS. • The most important facts here are: 1 . The 1983 site plan approval was issued without compliance with either SEQRA or the state mandated County referral requirements; 2 . The 1983 site plan approval was made in violation of law (New York General Municipal Law § 239-m) ; 3 . No building permit issued prior to July 16, 1985 or January 10, 1989; 4 . The applicant has acquired no vested rights before or after July 16, 1985 or January 10, 1989; 5 . The local laws were amended on July 16, 1985 and on January 10, 1989; and 6 . The current local laws since 1985 prohibit the development approved in 1983 . The question then is whether a prior approval • or letters from municipal officials relating to that approval bind or estop the Town of Southold. The question has come up many times in the last 15 years in the courts of New York. 19 4 I The courts of New York always hold that "estoppel is not available against a local government unit for the purpose of ratifying an administrative error. " Parkview Associates v. City of New York, 71 N.Y. 2d 274 ( 1988) . A building inspector is prohibited from issuing a permit which is at odds with the local zoning laws . B and G Construction Corp. v. Board of Appeals, 309 N.Y. 730 ( 1955) . The result of these legal doctrines is that "estoppel is not available to preclude a municipality from enforcing the provisions of its zoning laws and the mistaken or erroneous issuance of a permit does not estop a municipality from correcting errors, even where there are no harsh results . " Parkview, supra. 8 . THE ABSENCE OF PUBLIC WATER MEANS AT BEST A YIELD OF ONE UNIT PER 20, 000 SQUARE FEET, NOT ONE PER 6,500 SQUARE FEET. Accordingly to Exhibit J, there is no public water hookup approved and available to serve Northwind Village. This means the allowed yield at best is one unit per 20, 000 square feet, not a one unit per 6,500 square feet. This further means the 1983 site plan -- for this reason alone -- on this record before the ZBA is an invalid, 20 3 unapproved site plan. And it has been invalid and unapproved since July 16, 1985 . -111 rg 21 CONCLUSION This matter has been presented to the Zoning Board as if the question at hand were whether the letter "s" can be willed into § 100-42 (A) (2 ) so that the Code would read "Two-family dwellings" instead of what it now reads: "Two-family dwelling. " Ignored altogether is § 100-42 (B) ( 1) , exactly one inch below by actual measurement: ( 1) Multiple dwellings, townhouses, row or attached houses . No one needs to will an "s" in that subsection. The Town Board provided the "s" there and the Town Board intentionally omitted the "s" on both the two family dwelling and the one family detached dwelling, one inch above on the same Zoning Ordinance page. However as can be understood from this memorandum, this dispute between Kace LI, LLC and the Building Inspector is actually a waste of the Zoning Board' s time. Kace LI, LLC lost its rights under the law of New York on July 16, 1985, and nothing in the nature of willing the letter "s" into existence can change New York' s established law on the issues presented. Dated: November 15, 2001 Respectfully submitted, ANTHONY B. TOHILL, P.C. 12 First Street P.O. Box 1330 Riverhead, New York 11901 631-727-8383 22 AL ZONING BOARD OF APPEALS TOWN OF SOUTHOLD X In the Matter of the Application • APPEAL NO. 5003 of • KACE LI, LLC • X APPENDIX OF EXHIBITS ti ANTHONY B. TOHILL, P.C. ATTORNEY AT LAW 12 FIRST STREET P.O. BOX 1330 RIVERHEAD, NEW YORK 11901 • DAVID E. KAPELL 400 Front Street Greenport,New York 11944 1% 516-477-9403 REAL ESTATE ENTERPRISES CONSULTING SERVICES January 13, 1983 Mr. Henry Raynor, Chairman Southold Town Planning Board Main Road Southold, New York 11971 Dear Henry: Enclosed please find three (3) copies of the proposed site plan for condominium development of a property owned by my client, Emanuel, Kontokosta, to be known as Northwind Village. The parcel is located on the south side of the North Road in Greenport adjacent to son Simeon Nursing Home. Would you please process this plan for approval and advise me of its progress? B- .. t regards, 11111P 11 eV./ CiLX)Nai:- 40 : 'avid E. Kapell, as agent DEK/a Enclosures I— EXHIBIT A f I 1_, q IraIHXH , 4.. . . I ,. _2:_,1,-:.:''.. .. El : - 11,2 , - EC* ,-.7-fr - , .. / ,...7,:e ;7:6,- , ,,... /_ , • (3) 'V- C27 -00/ .7: _..ge ct.--1 , . . (7".... /(12 7 e)1/1‘'.7c:-.K-id 6/ Cl &C".)g '/J/HA/ V 7 \ . . 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P`. )?r,e01 -Ifk,iyiik--.-,,, ::_i_il-,) : ;)\:77•A711,t7 : --==-V3.:=1A02 17) -• , 43 tic t:(i 171.. -ir= --7.3-Plo 9,q 1 'L.\ ,•• vf:.-.1-av .y • . - - (i.16711,1;;16-. A01. .:a-11 .•1-"biJA-Igt9 n:v/ .-:"..-3Noz• .. .51- • , ., - ii -N,9•4.4c) .A1.0.041,M,I*J.Ne_11,,,i ,-,/.;I 1:,,oljeNI-4'7 '11•4411•4 0 2 r-- '1?N1. :071 . . , --------- -.7 --- - - % 91' )i'n't,IN'. .\7''' tr?-)SII r°4%.1,0'2, .-?. .'•.- . . . ... ..,; .. , . . i , ,.. . pg. (25) 4/18/83 11y ' i. i North Wind Village - The Chairman advised Mr. Kontokosta that this 1 11 `area was very difficult to inspect because of the heavy brush. On * inspection the Board noted an area of standing water and questioned , i 'r ; the perculation of drainage . It was the concensus of the Board that ' irk a Long Environmental Assessment Form be completed and submitted to I ;' `the Board for review. Mr. Kontokosta stated he would supply the Board i �', with soil boring information. i , 1I , I * * * * * * * * * * SII' R.T. Kroepel - A field inspection was made on this property. This li proposal would require an area and width variance. As a resolution � i ', for the denial of this proposal was entertained, Mr. Rudolph Bruer, ,; 1 Esq. requested that the Board not deny the application but forward comments to the Zoning Board of Appeals . The Board stated they would_. L C advise the Zoning Board of their comments regarding this proposal . :. No resolution was passed. 1 ;1 1 111 * * * * * * * * * * •George Malis - Mr. George Wetmore requested what specifications would be necessary for road improvement within this subdivision. Mr. Raynor it fadvised Mr. Wetmore that the Board would send out Inspector John W. i�ffj Davis during the subdivision process . {] * * * * * * * * * * Ii Daniel C. Shelley - After an on site field inspection, it was the ` concensus of the Board that the southerly right-of-way be expanded to 25 feet, and approval from the Zoning Board of Appeals for a 280-A for the remaining access outside the metes and bounds of the property. Also noted was this subdivision would require Suffolk County Planning Commission' s review. ,,,On motion made by Mr. Mullen, seconded by Mr. Latham, it was RESOLVED that the Southold Town Planning Board declare itself lead wagency in regard to the State Environmental Quality Review Act in the matter of the minor subdivision of Daniel C. Shelley, located at Cutchogue . . Vote of the Board:. Ayes : Raynor, Latham, Mullen, Orlowski * * * * * * * * * * P EXHIBIT C !' l • 1 DAVID E. KAPELL 400 Front Street Greenport, New York 11944 516-477-9403 REAL ESTATE • ENTERPRISES CONSULTING SERVICES MAY 2 REC'D Mr. Henry Raynor, Chairman Southold Town Planning Board Main Road Southold, N.Y. 11971 April 26, 1983 Dear Henry: Enclosed herewith please find the Long Form Environmental Assessment requested in your letter of April 20, 1983 concerning the application of my client, Emmanuel Kontokosta, for the Northwind Condominium project. The board will also receive correspondence directly from Mr. Kontokosta concerning the issue of any surface water on site. Should the Board require any additional information please don't hesitate to contact me. Best Regards, 7avid E. Kapell as agent A w • • ` -C \ 312-)e15 inI EXHIBIT D J TO1 J OF SOUTHOLD ! 1 •) ENVIRONMENTAL ASSESSMENT — PART I PROJECT INFORMATION MAY 2 . REC'D `tOT:CR: This document is designed to assist in determining wnet.`•er ::e action proposed 'Ray have.a -aignif cant _rfec: in the environment. Please comdiet= the entre lata Sheet. Answers to these luestlons dill be Considered as oars of the aoolicet:on for approval and may oe suljec- to furtner "errfication and public review. Provide V any aaai n anal information you believe will be needed to comolete PARTS 2 ane 3. , :t is expected :net completion of the EAF will be dependent on information currently available and will not •nvoive new studies, research or investigation. Iff Information reauir-ng such additional work iS_unavalaole, sa indicate and soecify eaci instance. '4AiIE OF PROJECT: iM'E ANO AOCRESS OF OWNER (;f Different) hinrthtjnd Valiage Cr►aba*�-;41i4a1ir Emmanuel Kontnkneta • (;lame) 43 West 54 Street • CO3AREa3140 ;TAME OF 5PO1 IC.VIT: (Street) • N.Y.C., N.Y. 10019 David E. Kapell, as agent (P.O.) (State) (,iaine) • BUSINESS PHONE: 2],2 - 582 X100 400 Frnar street (Street; Greenport, -N.Y. 11944 (13.O.j (State) (LIP) OE3CR[PI70,! OF PROJECT: (Briefly describe type of orojec. ar ac:ton) Project involves construction of 108 enndnminium "*Pito--on 17 acres of land zoned M- Light Multiple Residence District (?LZ..SZZ COMPLETE EACH 'LlESTION - indicate i.A. if not ac licaole) A. SITE .ESCRIPrto;! - (Physical setting of overall project, both-develdoec arta undevelcoed areas) I. General character of the land: Generally uniform slooe X Seneraily uneven and roiling dr irregular • 2. Present '.and ase: Uroan Industrial Commercial , Suouraan , �uraT , sorest Agriculture , Other Vacant b.-Full-hand • 3. rani acreage of oroject area: 17 acres. Aooroximate acreage: Presently After Completion Presently .After Completion :+- Meadow or 3rusniand 17acres Q acres :later'Sur=see Area acres acres Forested acres acres Unveoecat_d ;rocx, eartn or fill; acres acres Aar-..elltural acres acres leads, iui?dings 'let!arc -esnwater or and ^:mer oavec *ice: as ter Ar: ties sur-sces 0 acres 5 acres Id, '-5 3r :.,,.L. ) acres acre_ Landscaped --ems (indica:_ :Joe) 012 1 2 acres y. .hat is oreccm-nano soil :yoe(s) on 7ro;act s:t_? Sandy loam 5. a. Are there' ]edr:c: ouccropoings to 7rolec: s: .e? Yes X 'lo a. cast:: to :edroc:c? llndefinmd t^ Peek) 311../73 • • • • • 6. Approximate percentage of proposed project site with slopes: 0-10% 100 S; 10-155 :; 15Z or • greater :. 7. Is project contiguous to, or contain a building or site listed on the National Register of Historic Places? Yes x No 8. What is the depth to the water table?10-30 feet • 9. Oo hunting or fishing opportunities presently exist in the project area? Yes X No 10. Does project site contain any species of plant or animal life that is identified as threatened or endancered - Yes X No, according to - Identify each species • • 11. Are there any unique or unusual land forms on the project site? (i.e. cliffs, dunes, other geological formations - Yes X No. (Describe 12. Is the project site'pre§ently used by the community or neighborhood as an' open space or recreation area - Yes X No. - • 13. Does the present site offer or include scenic views or vistas known to be important to .the community? ' Yes y No 14. Streams within or contiguous to project area: a. Name of str-eam_and name of river to which it is tributary N.A. 15. Lakes, Ponds, Wetland areas within or contiguous to project area: • a. Name N.A. ; b. Size (in acres) 16. What is the dominant land use and zoning classification within a 1/4 mile radius of the project (e.g. single family residential, R-2) and the scale of development (e.g. 2 story). Single`family residential, nursing home, commercial -campground B. PROJECT DESCRIPTION 1. Physical dimensions and scale of project (fill in dimensions as appropriate) a. Total contiguous acreage owned by project sponsor 17 acres. b. Project acreage developed: 5 acres initially; 5_ acres ultimately. • c. Project acreage to remain undeveloped 12 - d. Length of project, in miles: N_A (if appropriate) e. If project is an expansion of existing, indicate percent of expansion proposed: building square fcot age N.A. ; developed acreage - f. Number of off-street parking spaces existing 0 ; proposed 108 g. Maximum vehicular trips generated per hour 50 (upon completion of project) • h. If residential: Number and type of housing units: One'Family Two Family Multiple Family 1 08Condominium Initial 108 Ultimate 108 i. If: Orientation Neighborhood-City-Regional Estimated Employment - Cos-mercial Industrial J. Total height of tallest proposed structure 25 feet. J ♦ • „ 2. Haw much natural material (i.e. rock, earth, etc.) will be removed from the site - 0 tons " • - - 0 cubic yard= 3. How many acres of vegetation (trees, shrubs, ground covers) will be removed from site - 17 acres. 4. Will any mature forest (over 100 years old) or other locally-important vegetation be removed by this project? Yes X No 5. Are there any plans for re-vegetation to replace that removed during construction? X Yes No 1 6. If single phase project: Anticipated period of construction 12 months, (including demolition). 7. If mud-ti-phased project: = 'Total number of phases anticipated ' No. - b. Anticipated date of commencement phase 1 month year (including demolition) C. Approximate completion date final phase month , year. d. Is phase 1 financially dependent on subsequent phases? Yes No 8. Will blasting occur during construction? Yes y No - . 9. Number of jobs generated: during construction 100 ; after project is complete 5 10. Number of jobs eliminated by this project 0 11. Will project require relocation of any projects or facilities? Yes X No. If yes, explain: 12. a. Is surface or subsurface liquid waste disposal involved? Yes X No. b. If yes, indicate type of waste (sewage, industrial, etc.) c. If surface disposal name of stream into which effluent will be discharged 13. Will surface area of existing lakes, ponds, streams, bays or other surface waterways be increased or decreased by proposal? Yes X No. 14. Is project or any portion of project located in the 100 year flood plain? Yes X No 15. a. Does projec,t involve disposal of solid waste? Yes X No b. If yes, will an existing solid waste disposal facility be used? Yes No - c. If yes, give name: ; location d. Will any wastes not go into a sewage disposal system ar into a sanitary landfill? : Yes X :Nt 16. Will project use herbicides or pesticides? Yes X No 17. Will project routinely produce odors (more than one hour per day)? Yes x No Ai 18. Will project produce operating noise exceeding the local ambience noise levels? Yes X No 19. Will project result in an increase in energy use? X Yes No. If yes, indicate type(s) electricity and fuel oil 20. If water supply is from wells indicate pumping capacity ' gals/minute. 21. Total anticipated water usage per day _11,000 gals/day. 22. Zoning: a. What is dominant 'zoning classification of site? M Light Multiple Residence b. Current specific zoning classification of site same c. Is proposed use consistent with present zoning? yes d. If no, indicate desired zoning -3- ) , _ 26. Approvals: a. Is any Federal permit required? Yes X No b. Does project involve State or Federal funding or financing? Yes X ' No c. Local and Regional approvals: Approval Required Submittal Approval (Yes, No) (Type) (Date) (Date) i ` City, Town, Village Board City, Town, Villace Planning Board X ,Site Plan 1/13/83 City, Town, Zoning Board City, County Health Department • Other local agencies Other regional agencies _ -- State Agencies - Federal Agencies C. INFORMATIONAL DETAILS _ - Attach any additional information as may be needed to clarify your project. If there are or may be any adverse impacts associated with the•proposal, pl--se discuss such impacts and the measures which can be taken to mitigate or avo' • . 7 PREPARER'S SIGNATURE: Alk • / _P Yak. 90. 94IP TITLE: ;agent • REPRESEENTING: Emmanuel Kontokosta GATE: : , LL,= 4/26/83 4 M . �) -. • _l:) t _ • TO ._i OF SOUTHOLD • •`' ENVIRONMENTAL ASSESSMENT — PART II PROJECT IMPACTS AND THEIR MAGNITUDE General Inforration (Read Carefully) - In completing the form the reviewer should be guided by the question: Have my decisions and determinations been reasonable? The reviewer is not expected to be an expert environmental analyst. ./a .- Identifying tnat an effect will be potentially large (column 2) does not mean that it is also necessarily significant. Any large effect must be evaluated in PART 3 to determine significance. By _identifying an effect in column 2 simply asks that it be looked at further. - - The Examnies provided are to assist the reviewer by showing types of effects and wherever possible the threshc of magnitude that would trigger a response in column 2. The examples are generally applicable throughout the State and for most situations. But, for any specific project or site other examples and/or lower thresholds may be more appropriate for a Potential Large Impact rating. - Each project, on each site, in each locality, will vary. Therefore, the examples have been offered as guidanc They do not constitute an exhaustive list of impacts and thresholds to answer eacn question. - The number of examples per question does not indicate the importance of each question. • INSTRUCTIONS (Read Carefully) • a. Answer each of the 18 questions in PART 2. Answer Yes if there will be as effect. b. Maybe answers should be considered as Yes answers. c. If answering Yes to a question then check the a:orooriate pox (column 1 or 2) to indicate the potential size of the impact. If impact threshold equals or exceeds any example provided, check column 2. If impact will occur but threshold is lower than example, check column 1: d. If reviewer has doubt about the size of the impacttjleu. consider the impact as potentially large and proceed to PART 3. e. If a potentially large impact or effect can be reduced by a change in the project to a less than large magnitude, place a Yes in column 3. A No response indicates that such a reduction is not possible. 1. 2. 3. SMALL TO POTENTIAL CAN IMPACT BE MODERATE LARGE REDUCED BY IMPACT IMPACT PROJECT CHANGE IMPACT ON LAND NO YES - 1. WILL THERE BE AN EFFECT AS A RESULT OF A PHYSICAL CHANGE TO 00 PROJECT SITE? • Examples that Wouid Apply to Column 2 _ Any construction on slopes of 15% or greater, (15 foot rise per 100 foot of length), or where the general slopes in the project area exceed 10%. • • Construction on Land where the depth to the water table is less • than 3 feet. _ Construction of oaved parking area `or 1,007 or more vehicles. Construction on land where bedrock is exposed or generally witnin 3 feet of existing ground surface. Construction chat will continue for more than 1 year or involve j more than one pnase or stage. Excavation for mining purposes that would remove more than 1 ,000 tons of natural material (i.e. rock or sail) per year. Construction of any new sanitary landfill. -5- .) ,1LL 1u ru i c", in,_ w..0 L. i-A,I - G VODERA i E LARGE REDUCES 21 IMPACT wracT • PROJECT CHANGE Construction in a designated floodway. • • Other impacts: NO YES 2. WILL THERE SE AN EFFECT TO ANY UNIQUE OR UNUSUAL LANG FOPJIS (Da� FOUNDOWN THE SITE? (i.e. cliffs, dunes, geological forma- tions, etc.) 4 • Specific land forms: -- - • IMPACT ON WATER • NO YES 3. 'WILL PROJECT' AFFECT ANY WATER BODY DESIGNATED AS • . PROTECTED? (Under Articles 15, 24, 25 of the Envir- 0 0 • • - onmental Conservation Law, E.C.L.) Examples that Would Apply to Column 2 Dredging more than 100 cubic yards of material from -- channel of a protected stream. Construction in a designated freshwater or tidal wetland. t Other impacts: 4. WILL PROJECT AFFECT ANY NON-PROTECTED EXISTING OR NEW NO YES BODY OF WATER? O 0 . ._ Examoles that Would Apply to Column 2 A 10% increase or decrease in the surface area of any body _ of water or more than a 10 acre increase or decrease. Construction of a body of water that exceeds 10 acres of surface area. Other impacts: AVO YES 5. WILL PROJECT AFFECT SURFACE OR GROUNDWATER QUALITY? ® O Examples that Would Apply to Column 2 x _ Project will require a discharge permit. — Project requires use of a source of water that does not have __ M approval to serve proposed project. — Project requires water supply from wells with greater than 45 gallons per minute pumping capacity. — Construction or operation causing any contamination of a public water supply system. , Project will adversely affect groundwater. , Liquid effluent will be conveyed off the site to - facilities which presently do not exist or have inadequate capacity. , _ Project requiring a facility that would use water in —. excess of 20,000 gallons per day. Project will likely cause siltation or other discharge __ - into an existing body of water to the extent that there will be an obvious visual contrast to natural conditions. . I • 1. i z... j. . WALL TO POTENTIAL CACI IMPACT 4E , -•. , MODERATE LARGE REDUCED BY • IMPACT IMPACT PROJECT CHANGE Other Impacts: 6. WILL PROJECT ALTER DRAINAGE FLOW, PATTERNS ERNS OR SURFACE WATER NO YES RUNOFF? GO .`4 Example that Would Aoply to Column 2 4 Project would impede flood water flows. - Project is likely to cause substantial erosion. Project is incor..oatible with existing drainage patterns. Other impacts: ; IMPACT ON AIR NO YES 7. WILL PROJECT AFFECT AIR QUALITY' • O O X Examoles that Mould Apply to Column 2 _ Project will induce 1 ,000 or mare vehicle trips in any given hour. Project will result in the incineration of mare than 1 ton - of refuse per hour. Project emission rate of all contaminants will exceed 5 lbs. per hour or a heat source producing more than 10 . million aTU's per hour. _ Other impacts: TrACT ON PLANTS ANO aN!" L5 . NO YES 8. WILL PROJECT AFFECT ANY THREATENED OR ENDANGERED SPECIES: ^ 0 Examples that Would Apoly to Column 2 v — Reduction of one or more species listed on the New York or Federal list, using the site, over or near site or found on the site. - _ Removal of any portion of a critical or significant wild- --- l i fe habitat. Application of Pesticide or herbicide over more than - twice a year other tan for agrir_4!_ural puroosas. Other impacts: 9. WILL PROJECT SUESTANT TALLY AFFECT ;TON-THREATENED OR 40 YES ENDANGERED SPECIES' CD n Exaroie `_hat :could Apply to Column 2 �•J Project would substantially interfere with any resident — or migratory fish or wildlife species. Prnject recuires the removal of -ore than 10 acres of mature forest (ever 100 years in age) or ot-er locally i-r.ortont vegetat'on. i 1 1 • 1. 2. 3. SMALL TO POTENTIAL CAN IMPACT .BE - ` 4..00ERATE LARGE REDUCED' ay ' • . IMPACT IMPACT PROJECT CHANTz • I"PACT on VISUAL RESOURCE . 10.. WILL THE PROJECT AFFECT VIEWS, VISTAS OR THE VISUAL NO YES . CHARACTER OF THE NEIGHBORHOOD OR COMMUNITY? GO . Examoles that Would Apply to Column 2 An incompatible visual affect caused by the introduction of new materials, colors and/or forms in contrast to the • surrounding landscape. . A project easily visible, not easily screened,that is - obviously different from others around it. _ Project will result in the elimination or major screening of scenic views or vistas known to be . Important to the area. • .• . Other impacts: IMPACT ON HISTORIC RESOURCES 11. WILL PROJECT IMPACT ANY SITE;OR STRUCTURE OF HISTORIC, NO YES PRE-HISTORIC OR PALEONTOGICAL IMPORTANCE? G O X Examoles that Would Apply to Column 2 Project occuring wholly or partially within or contiguous to any facility or site listed an the National Register of . • historic places. - - Any impact to an archeological site or fossil bed located 1 — within the project site. . Other impacts: IMPACT ON OPEN SPACE & RECREATION • 12. WILL THE PROJECT AFFECT THE QUANTITY OR QUALITY OF EXISTING NO YES OR FUTURE OPEN SPACES OR RECREATIONAL OPPORTUNITIES? 0 0 .. . - Examoles that Would Apply to Column 2 The permanent foreclosure of a future recreational opportunity. ' _ _ A major reduction of an open space important to the community. a _ Other impacts: - • • IMPACT ON TRANSPORTATION 13. WILL THERE BE AN EFFECT TO EXISTING TRANSPORTATION NO YES SYSTEMS? GO Examoles that :could Aoply to Column 2 _ Alteration of present patterns of movement of people and/or goods. Project will result in severe traffic problems. — Other ir.Facts: j .1 • . _ . r 1 • 1 ,2. 3 . .'' SMALL TO POTENTIAL CAN IM . IMPACT*C7' MODERATE URGE REDUCED BY ` IMPACT • IMPACT PROJECT CHANGE IMPACT ON ENERGY 14. WILL PROJECT AFFECT THE COPMUNITIES SOURCES OF FUEL CR NO YES ENERGY SUPPLY? GO -' Examoles that 'Would Apply to Column 2 Project causing greater than 5A increase in any form of energy used in municipality. Project requiring the creation or extension of an energy • transmission or supply system to serve more than 30 single or two family residences. Other impacts: — • . i IMPACT ON NOISE 1 15. 'WILL THERE BE OBJECTIONABLE ODORS. 10ISE, GLARE, !IB?ATICN NO YES or ELECTRICAL OIST+URSANCE AS A RESULT OF THIS PROJECT? ....00 • Examoles that Would Apply to Column 2 Blasting within 1,500 feet of a hospital, school or other sensitive facility. Odors will occur routinely (;rare than one hour per day). •• Project will produce ooerating noise exceeding the local ambient noise levels for noise outside of structures. Project will remove natural barriers that would act as a — noise screen. • Other impacts: IMPAC' ON HEALTH & HAZARDS NO YES 16. WILL PROJECT AFFECT PUBLIC HEALTH AND SAr-ETY? ...., 00 _ Examoles that Would Apply to Column 2 Project will cause a risk of explosion or release of hazardous substances (i.e. oil, pesticides, chemicals, radiation, etc. ) n in the event of accident or upset conditions, or tnere will be a chronic low level discharge or emission. Project that will result in the burial of "hazardous wastes" _ _` (i.e. toxic. poisonous, highly reactive, radioac=ive, irritating, infectious, etc. , incluoino wastes that are solid, semi-solid. liquid or contain gases.) , Storace facilities for one million or more gallons of liquified natural gas or other licuids. _.__ Otner imoacts: -°- 3 \ ...IrPACT Il1P4CT PROJECT C .;iGE IMPACT ON GR:YJ1d A!iO C:fApACTER OF COr";J;ltTY OR mEIGF'Dnvu^•Cn . a S .j . . 17. WILL PROJECT AFFECT THE CHARACTER 'IF THE EXISTING NO YES • CO'L•?IN I TY? GO • . Examole that Would Apoiy to Column 2 The copulation of the City, Town or Village in which the project is located is likely to grow by mare than 51 aF resident human population. _ The municipal budgets for capital expenditures or opera- ting services will increase by more than 5% per year as a �— result of this project. • - Will involve any cermanent facility of a non-agricultural use in an agricultural district or remove prime agricultural lands from cultivation. _ The project will replace or eliminate existing facilities, structures or areas of historic importance to the community. _ Development will induce an influx of a particular age group with special needs. . Project will set an important precedent for future projects. Project will relocate 15 or more employees in one or more — businesses. ' Other impacts: • NO • YES 18. IS THERE PUBLIC CONTROVERSY CONCERNING THE PROJECT? 0 _ i G Examoles that Would Apply to Column 2 _ Either government or citizens of adjacent communities have expressed opposition or rejected the project or have not been contacted. Objections to the project from within the community. --,. IF ANY ACTION IN PART 2 IS IDENTIFIED AS A POTENTIAL LARGE IMPACT OR IF YOU CANNOT DETERMINE THE MAGNITUDE OF IliPACT, PROCEED TO PART 3. PORTIONS OF EAF COMPLETED FOR THIS PROJECT: DETERMINATION PART I PART I1 PART 3 • Upon review of the information recorded on this EAF (Parts 1, 2 and 3) and considering beth the magnitude and importance of each impact, it is reasonably determined that: PREPARE A NEIATIVE DECLARATION A. The project will result in no major impacts and, therefore, (2) . is one which may not cause significant damage to the environment. 8. Although the project could have a significant effect on the environment, there will not be a significant effect in this case PREPARE A NEGATIVE DECLARATION because the mitigation measures descrioea in PART 3 have been incl):Iced as part of the proposed proj_ce. (.2) C. The orpject will result in one or mare major adverse imcac_s PREPARE POSITIVE DECLARATION PROCEED WI that cannot be reduces and may cause significant damage to the environment. 4/26/83 O OaL CAD‘ 1`A 1- — v Signature of RpsponQ�eble ney (ficial in l_ Signet e of Preparer (if differen from r 'ponsiole .." icer) Print or type nare of responsible offic in Lead Agency r • • TOWN OF SOUTHOLD • • ENVIRONMENTAL ASSESSMENT — PART III EVALUATION OF THE IMPORTANCE OF IMPACTS I N FORMAT tor; - Part 3 is prepared if one or more impact or effect is considered to be potentially large. - The amount of writing necessary to answer Part 3 may be determined by answering the question: In briefly t + completing the instructions below 'nave I placed in this record sufficient information to indicate the reasonableness of my decisions? • INSTRUCTIONS Complete the following for each impact or effect identified in'Column 2 of Part 2: 1. Briefly describe the impact. 2. Describe (if applicable) haw the impact might be mitigated or reduced to a less than large impact by a pro- ject change. 3. Based on the information available, decide if it is reasonable to conclude that this impact is imoortant to the minicipality (city, town or village) in which the project is located. To answer the question of importance, consider: - The probability of the impact or effect occurring • - The duration of the impact or effect - Its irreversibility, including permanently lost resources or values - Whether the impact or effect can be controlled • - The regional consequence of the impact or effect • - Its potential divergence from local needs and goals • - Whether known objections to the project apoly to this impact or effect. DETERMINATIOIN OF SIGNIFICANCE An action is considered to be significant if: One (or more) impact is determined to both larze and its (their) conseauenca, based on the review above, is important. PART III STATEMENTS (Continue on Attachments, as needed) f • " _ 1 I - pg. (2) 6/1/83 (ljOn motion made by Mr. Latham, seconded by Mr. Mullen, it was RESOLVED to set 7 :30 p.m. , Monday, June 20, 1983 •at the Town Hall, Main Road, Southold, New York as the time and place for the next • regular meeting of the Planning Board. Vote of the Board: Ayes : Raynor, Latham, Mullen, Orlowski, Wall * * * * * * * * * * On motion made by Mr. Mullen, seconded by Mr. Latham, it was RESOLVED that the Southold Town Planning Board have Inspector John W. Davis inspect the following areas in which the performance bonds have expired and report to the Planning Board the status of road con- struction and improvements within each subdivision. BLUE HORIZONS, SECTION I LANDS END BLUE HORIZONS, SECTION II LONG POND ESTATES HIGHLAND ESTATES PARADISE BY THE BAY PECONIC KNOLLS TOWN HARBOR TERRACE SEA AIRE ESTATES SYLORET ESTATES RICHMOND SHORES AT PECONIC Vote of the Board: Ayes : Raynor, Latham, Mullen, Orlowski, Wail * * * * * * * * * * On motion made by Mr. Latham,seconded by Mr. Orlo1ski, it was RESOLVED that the Southold Town Planning Board -accept the report of Randall Woodard, P.E. , dated May 12 , 1983 , regarding the subdivision to be known as Highpoint at East Marion, Section I, located at East Marion. • Vote of the Board: Ayes: Raynor, Latham, Mullen, Orlowski, Wall * * * * * * * * * * On motion made by Mr. Latham, seconded by Mr. Wall, it was RESOLVED that the Southold Town Planning Board refer the site plan "Northwind Village" to the Building Department for certification. 1 t Vote of the Board: Ayes: Raynor, Latham, Mullen, Orlowski, Wall * * * * * * * * * * bEXHIBITE .01 FFQ To AI -fey L ® i • g.D ;; 4 , • Southold, N.Y. 11971 HENRY E.RAYNOR,Jr.,Chairman TELEPHONE JAMES WALL 41*, 765-1938 BENNETT ORLOWSKI,Jr. GEORGE RITCHIE LATHAM,Jr. WILLIAM F.MULLEN,Jr. June 8, 1983 Mr. Victor Lessard Building Administrator Southold Town Hall Southold, New York 11971 Re: Northwind Village Condominium Project Dear Mr. Lessard: The following action was taken by the Southold Town Plan- ning Board, Wednesday, June 1, 1983 . RESOLVED that the Southold Town Planning Board refer the site plan "Northwind Village" to the Building Department for certification. Three copies of the above site plan have been attached. Very truly yours, HENRY E. RAYNOR, JR. , CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Susan E. Long, Secretary Attch. cc: David Kapell, agent t+ X- F '`'-'z • q icerS. UTILITY OFFICE TEL. "' , (516)477.1748 . k{ ::: - ' MAYOR 141/aye o� gpeeizipori ../.. .„,„--: POWER PLANT TEL f .;1 ,�a$ GE W.HUBBARA INCORPORATAO r.a. a 7:•?:?*'':' ,.. ,I,Rus NAW INCORPORATION APRIL T.t... (516)477.0172 .,'.,',4,';'''''''',-,, ,Boz RAW.. AM p.ALLEN u M.INCORROAATIVN UNDO Q�116R#L LAM!Ig AY Ai, i#A,A, i-.../',:,-„,•1'' SAMUEL KATZ (LNI,.I WILLIAM H.U{EBULEEIN '� t $0618:1 T,WV.H8 - •,..........,,,„, r .r ' .;: SUPT.OF UTILITIES V v uu*+ • , �+ C'� ,UN 7 REC i was j.MONSF.I.j. �� •• .-�eAl.r,. ode" 236 THIRD STREET • GREENPORT,SUFFOLK COUNTY {': -` ` NEW YORK 11944 June 6, 1983 , . -r- , Mr. E. M. Kontokosta, P.S. -,,,- Kontokosta Associates 43 West 54th Street • µ Mew York, New York 10019 '" Re: Water & Sewer Service ' 122 Residential. Units Dear Mr: Kontokoeta: . - To complete your request of January 10, 1983 to supply water and - sewer service to 60 acres of land in North Greenport, we will need the .P• following information and data. .,i.F 1.) A plot plan of the subdivision showing location and . size of water and sewer mains. 2.) Number of dwelling units. ' 3.) Daily sewage demand, peak demand and annual demand. 4.) 1)4I4.1y t Ater Consumption, peak demand and, mnpual demand, - . ,..,1:6,4.5.-- ,... When we have received this info ton, we w141 give your request - #; t,� .0 our imMediate at.tention.. z' , Kerr ter yauxs, il James I. Monsell '' ='',2, •;• 4011111fSuperintendent of Public Utilities JIM:nr � V"\,,r,t, C', C. - /NENRY /�AYN021 , 6,\-M5: . . "j0U7/10L0 7-AWVN PLA,/w"' /3O.4,'D 1 EXHIBIT F —i A pg. (4) 7/11/83 John Simicich - Mr. Philip O'Frias, Attorney for Mr. and Mrs . Dolomite was present as the Board reviewed Inspector Davis ' report #308 regard- ing access to the lots within this subdivision. Mr. O'Frias stated the cost for the recommended improvements would be very costly to the ` present landowners and requested that another contractor submit differ- ent road specifications for the area that would reduce the estimated cost from $4 ,000 to $1,500 . Question was raised as to who has the ' responsibility of cost for such improvements ; the present landowner or the developer. It was agreed by the Board members that the Town Attorney advise the Board who is responsible. The Board did not take action on Inspector John W. Davis ' report #308. * * * * * * * * * * Sullivan/Preston Site Plan - An inspection of this property was made prior to the meeting. The Board noted there was ample parking (public) in the rear of the building and recommended that the applicants con- tact the Southold Town Board for permission for a "walk through" access from this parking area. Mr. Preston and Mr. Sullivan stated they would propose to use red brick walkway. On motion made by Mr. Orlowski, seconded by Mr. Latham, it was RESOLVED that the Southold Town. Planning Board refer the site plan of Sullivan/Preston to the Building Department for certification. Vote of the Board: Ayes: Raynor, Latham, Mullen, Orlowski * * * * * * * * * * I, Northwind Village - Mr. Kontokosta was present as the Board reviewed certification from the Building Inspector' s Office. It was noted that no drainage plans have been placed on the proposed plan and parking relative to the dwellings are not shown. Mr. Kontokosta stated there will be garages for the dwelling units ; the size of the units encompass the garages . Mr. Kontokosta stated this would be done when plans are submitted to the Building Inspector' s ,fJffice. Mr. Lessard stated no objection to this and stated no objection to ,determining adequate drainage for the area with possible assistance from Inspector John Davis . Mr. Raynor advised Mr. Kontokosta that the Suffolk County Planning Commission would have to review the pro- posed site plan. , On motion made by Mr. Latham, seconded by Mr. Mullen, it was RESOLVED that the Southold Town Planning Board approve the site plan ; "Northwind Village" dated May 11, 1982 , and certified by the Build- ; ing Inspector June 17 , 1983 . Vote of the Board: Ayes: Raynor, Latham, Mullen, Orlowski * - EXHIBIT 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK X EMANUEL KONTOKOSTA, KACE REALTY CO. , and RACE CONSTRUCTION CORP. , Plaintiffs, STIPULATION AND ORDER DISCONTINUING ACTION - against - • • THE VILLAGE OF GREENPORT, GEORGE HUBBARD, 87 CIV. 3432 (SAS) individually and as Mayor of the Village : Of Greenport; JEANNE M. COOPER, GAIL F. HORTON, DAVID KAPELL and • WILLIAM LEIBLIEN, individually and as Members of the Village of Greenport Board of Trustees, Defendants . X WHEREAS, plaintiffs are the owners of seventeen ( 17) acres of land in the Town of Southold, Suffolk County, New York, upon which they plan to build a 108 unit development to be known as Northwind Village; and WHEREAS, defendants provide water and sewer services for a territory which includes the Northwind Village development; and WHEREAS, plaintiffs submitted applications for water and sewer services for the Northwind Village development in or about January 1983 and February 1987; and WHEREAS, plaintiffs commenced this action on or about May 20, 1987, and filed an amended complaint on or about March 8, 1988 alleging, inter alia, that defendants' denial of plaintiffs' applications for water and sewer services for the Northwind Village development and defendants ' imposition of "backbone" fees upon the p� Northwind Village development violated the Equal Protection and DueYP*6°,07 Ed Wd2T :60 000E 20 '-odd EXHIBIT H i Wpbd Process Clauses of the Fourteenth Amendment of the United States' Constitution, 42 U.S.C. S 1983 and other applicable provisions of law; and WHEREAS, defendants have denied the allegations in the amended complaint charging them with unlawful treatment of plaintiffs and/or any other wrongdoing; WHEREAS, the decision of the Hon. John Cannella dated September 27, 1991, expressly upheld the imposition of backbone fees as constitutional, and dismissed each of the plaintiffs' causes of action except for its equal protection claim stemming from the 1983 application; and WHEREAS, the parties now seek to resolve the issues raised in this action without further proceedings; -IT IS HEREBY STIPULATED AND AGREED by and between the parties in the above-captioned action, by their attorneys, as follows: 1. Defendants acknowledge that, as of the date of this Stipulation and Order, there is sufficient water capacity to service the 108 unit Northwind Village Development in accordance with the site plan approved by the Town of Southold planning board on July 11, 1983; and in accordance with plaintiffs' 1985 request (made with respect to the 1983 application) for 10,800 gallons per day ( "gpd" ) , annexed hereto as Exhibit "A", and 1987 request for 28, 350 gpd, annexed hereto as Exhibit "B. " Specifically, it has been represented by plaintiffs that the 108 units will generate 10,800 gpd of average water demand or an estimated 28,350 gpd of average water demand. However, as set forth below, there is not 2 Ld Wd91 :60 000E E0 'add : 'ON Xtid : W0ad sufficient sewer capacity to accommodate either of these requests as of the date of the execution of this stipulation. Accordingly, subject to the terms and conditions of this Stipulation and Order, defendants hereby approve plaintiffs' 1985 and 1987 requests for water services for the Northwind Village Development. It is expressly understood that once sufficient sewer capacity of 8,640 gpd becomes available, the Village hereby agrees to provide 10,800 gpd of water to the Northwind Village Development, if plaintiffs Choose to elect to execute water and sewer contracts as set forth in paragraph 5 below and pay "backbone" fees as set forth in paragraph 6 below. The Village will provide the remaining capacity of plaintiffs' 1987 requests for water services if (i) the plaintiffs apply for additional sewer capacity pursuant to paragraph 3 below, and (ii) said application is granted. 2 . That the parties acknowledge that ( i) there is not sufficient sewer capacity available to service plaintiffs' project due to restrictions placed upon the Village by the New York State Department of Environmental Conservation (DEC) pursuant to the consent order, State Pollutant Discharge Elimination System ( "SPDES" ) permit and related DEC correspondence (hereinafter referred to as "DEC Requirements" ) , attached hereto as Exhibit "C"; and (ii) the Village must comply with various conditions to attempt to obtain the DEC's approval to accommodate sewer capacity of 8,640 gpd. 3. Defendants agree to comply with the conditions set forth in the DEC Requirements, attached hereto as Exhibit "C. " In this • 3 . 8d WdLZ :60 0002 20 'adU : '0N Xd.d :, W0213' FROM FAX NO. : Apr. 03 2000 08:27AM P2 manner, defendants will provide sufficient sewer capacity, subject to the aforesaid DEC Requirements (annexed hereto as Exhibit Cu ) ," and any extension thereof, to satisfy the capacity of 8,640 gpd within four years of the date the stipulation is so ordered by the Court. Plaintiffs need not make any further application for sewer service, as its current application for 8,640 gpd will be deemed approved as of the date sewer capacity is available. It being expressly understood that plaintiff's application for both water and sewer must comply with the requirements set forth in paragraphs 3-7 of the December 23, 1987 H224 group report, annexed hereto as Exhibit "D, " with respect to engineering details . It also is expressly understood that plaintiff shall have the right to apply for additional sewer capacity .up to 14,000 gallons per day, after the Village advises the plaintiffs that there is sufficient sewer capacity to satisfy the 8,640 gpd request. Said application will not affect plaintiffs' prior approval for 8, 640 gpd. 4 . Defendants agree to apply for, and to use their best efforts to obtain the approvals from the DEC which are required pursuant to the express terms of the aforesaid DEC Requirements so as to connect the Northwind Village Development to the Village of Greenport sewer system, including, but not limited to, approval for this new connection and approval for any increase in allocable sewer capacity as required by the aforesaid DEC Requirements (annexed hereto as Exhibit "C" ) . Plaintiffs agree to provide any information requested by the DEC, or to otherwise make reasonable 4 FROM : FAX NO. : Apr,. 03 2000 •08:27AM P3 efforts to assist the defendants in any manner requested by the DEC. 5. When sufficient water and sewer capacity are available to satisfy the requirements of the Northwind Village development in , accordance with paragraph 1, defendants shall notify plaintiffs in , writing, by United States certified or registered mail, at 43 West 54th Street, New York, New York 10019 . After plaintiffs' receipt of such notice, plaintiffs will then have three (3) years to elect to execute contracts for water and sewer services with the Village of Greenport, by notifying the Office of the Mayor of the Village of Greenport in writing, by united States certified or registered mail. Nothing in this Stipulation and Order shall require plaintiffs to enter into contracts for water and sewer services . Should plaintiffs choose not to execute such contracts, they will not be obligated to pay the "backbone" fees provided for in paragraph 6 of this Stipulation and Order. If plaintiffs do not elect to enter into contracts for water and sewer services with the village of Greenport within three (3) years of plaintiffs ' receipt of the aforesaid notice, the approvals of plaintiffs ' applications for water and sewer services pursuant to paragraphs 1 and 2 herein shall expire, and defendants will have no obligation to provide plaintiffs with water and sewer pursuant to this Stipulation. 6 . When all required approvals from the DEC are obtained, if and only if plaintiffs elect to enter into contracts with the Village of Greenport as provided for in paragraph 5 of this 5 FROM FAX NO. : Apr. 03 2000 08:28AM P4 Stipulation and Order, and subject to all the other terms and • conditions set forth herein, plaintiffs shall pay to the Village of • Greenport "backbone" fees for the Northwind Village development of $2,570 per dwelling unit for water services and $2,585 per dwelling unit for sewer services for the 108 units at hand at the time of executing contracts for both water and sewer. If plaintiffs do not elect to execute contracts for water and sewer services within three (3) years pursuant to paragraph 5 above, their right to pay the backbone fees at the rates set forth above will also expire. 7 . Defendants agree to pay plaintiffs the sum of eighty-five thousand ($85,000) dollars in full and final settlement of any claims that plaintiffs may have in this action against any and all of the defendants . Such payment shall be made within 30 days of the execution of this agreement by both parties, said 30 days to commence running upon the presentation of the stipulation to the Court to be so-ordered, and shall be by check made payable to "Emanuel M. Kontokosta, Kace Realty Co. and Race Construction Corp. " and shall be delivered to and received by plaintiffs' attorneys, Gordon & Gordon, P.C. , at their offices at 437 Madison Avenue (40th Floor) , New York, New York 10022 . Upon receipt of said funds, plaintiffs will cause to be immediately filed a stipulation of dismissal with prejudice with the Court. 8. Plaintiffs, by entering into this Stipulation, accept the benefits provided herein in full and complete satisfaction of any and all injuries and/or damages of any kind or description relating to any of the matters or claims alleged in the complaint herein. 6 9 . Nothing in this Stipulation shall be deemed an admission by defendants of any wrongdoing. • 10 . Nothing in this Stipulation shall be deemed to constitute a regular practice or procedure by defendants, or shall apply to any project or development other than Northwind Village. 11 . This Stipulation shall inure to the benefit and detriment of the parties hereto and their respective successors, executors, administrators and assigns to the extent that these successors seek to construct the Northwind Village development. 12. If the Village sells its water and sewer franchise to an entity which does not require backbone fees before such fees are due and owing to the Village, plaintiffs shall be relieved of the duty to pay backbone fees pursuant to paragraph 6 of this stipulation. 13. This Stipulation shall not be used by any of the parties for any purpose whatsoever other than in an action or proceeding to enforce its terms. 14. Any party to this action may submit this Stipulation to this Court to have this Stipulation "SO ORDERED" upon its execution by the parties' counsel. This Stipulation will take effect only upon being so-ordered by the Court. 7 Sd wdsT :60 0002 20 ' +dd : •ON Xdd : w0ed Dated: New York, New York February 5, 1996 GORDON & GORDON, P.C. THURM & HELLER Attorneys for Plaintiffs Attorneys for Defendants 437 Madison Avenue - 40th Fl. 261 Madison Avenue New York, New York 10022 New York, New York 10016 (212) 355-3200 (212) 682-7000 By: By: & N J. SALTIEL FMTJAEL A. MIRANDA (SS:8907) (MM:6413) SO 0 'iE• •D: i '/ .S.D.J 8 9d Wd9T:60 000E 20 ' Ddb : '0N XUA : WOdd ��FO� TEL. 765-1802 �' „ 1p ' TOWN OF SOUTHOLD ��1� � OFFICE OF BUILDING INSPECTOR P.O. BOX 728 v' TOWN HALL =4 Oyr'`�� SOUTHOLD, N.Y. 11971 _ O! 411 sgb • December 30 , 1986 ! ! Mr . E . Kontokosta 43 West 54th St . New York, N .Y. 10019 Dear Mr. Kontokosta : RE : Northwind Village � I North Road , Greenport Your application for a 4 Townhouse unit is ready for issuance of a permit . Unfortunat- • ely, I can not give you same until I have written verification of water and sewerage from the proper agency . Yours truly, Victor G . Lessard VGL :hdv Exec . Admin . 1_i �J 0.11 MA- -el P rr" �` m45-61)3 , EXHIBIT( I 4 Attachment to KACE LI,LLC's application ' The Southold Town Planning Board approved the site plan on July 11, 1983 (a copy of a letter from Planning Board Chairman Henry Raynor, dated July 14, 1983, confirming this is enclosed for easy reference). Southold Town Code §100-255(B) states: All site plans which have received final approval prior to the enactment of this Article shall remain valid for a period of three years from the date of such enactment. This period will begin when all governmental approvals have been ' obtained. (Emphasis supplied) Since the Suffolk County Water Authority has not yet issued its approval, this period has not yet commenced. F\Data\CLIENTS\KONTOKOS\Kace\Correspondence\application.rev.wpd a IMMMIMIMMIIM 1 EXHIBIT J —I I J r) BIP R'' ' \ I-111.PP Town Hall, 53095 Main Road ' • G$} 'r _ ? ° SCOTT L. HARRIS • P.O. Box 1179 V' '4- r` Supervisor Southold, New York =F=�`,` `� o� ���`n`�'� ,.��� �� Fax (516) 765-1823 11971 "" "° � ��' 0. Telephone (516) 765-1800 r PLANNING BOARD OFFICE TOWN OF SOUTHOLD March 29, 1990 Emanuel Kontokosta c/o KACE Realty Company 43 West 54th Street New York„ New York 10019 Re: Northwind Village Site Plan, S/s CR 48, Greenport SCTM # 1000-40-3-1 Dear Mr. Kontokosta, • The Planning Board was contacted by the Greenport Village Utility Company as to the validity of the site plan approval that was granted to the above-referenced site in 1983 . This Board wishes to make clear' that while it granted site plan approval in 1983, the drainage and grading plans and the parking layout remain unaddressed. To date, these plans have not been submitted to this office for review and approval. Before any building permits could be issued on this project, the following approvals have to be obtained: 1. The drainage and grading plans will have to be reviewed by the Town' s engineer for compliance with Article XXV of the Town Code, and accepted by the Planning Board. 2. The parking layout and site plan also would have to be reviewed and approved;-by'. this Board. 3 . A valid water and sewer contract for the density shown 111 EXHIBIT K on the site plan has to be fufilled to the satisfaction of the Village of Greenport. Written confirmation from the ' !{ Village of Greenport and the Suffolk County Department of Health Services will be required to be submitted to this office. la If there are any questions about the above, please contact this , office. �I Very Truly Yours, j4 Bennett Orlowski, Jr. Chairman cc: Victor Lessard, Principal Building Inspector Village of Greenport, Utility Committee _ II -`i ' .. ����»���� �r~ • S -_ RACE REALTY CO. ` ' ��� 43 West 54th Street p�� New York City, New York 10019 - � )� / l / ^ | April 4th, 1990 '� / ) � . ! ° Mr. Bennett Orlowski, hairman ^ � Jr,, . Southold Planning Board Town of Southold | ' Town Hall, 53095 Main Road / � P. O. Box 1179 .: Southold, New York 11971 ` / ' / Re: Approved Site Plan-Northwind Village � !` S/s CR 48, Greenport '| SCTM # 1000-40-3-1 Dear Mr. Orlowski : '. |. I am in receipt of your letter of March 29, 1990 concerning the plan for Morthwind Village which was unconditionally approved by the Southold Planning Board on July 11, 1983, copy of which I have enclosedl for your files. In your letter, you state that three additionalU approvals will have to be obtained before a building permit may be issued. I strongly disagree with at least two of the items mentioned jr,, your letter. First, your letterstates that : .` |, "The drainage and grading plans will have to be reviewed by | the Town' s Engineer for compliance with Article XXV of the !� Town Code, and accepted by the Planning Board. " Contrary to what is suggested in your letter, all the information' necessary for a site plan review, including but not limited to drainage, and grading was submitted, reviewed and the site plan approved by the Planning Board on July 11, 1983 indicating full compliance with the; intent and regulations of all the paragraphs of Article XIII-"Site Plan| Approval" of the Town Code in force at that time. I am enclosing a copY; of the approved site plan signed by the then chairman of the planning board Mr. Henry Raynor for your files. To the extent that your letter. suggests that these plans had to comply with Article XXV of the Town Code, it is surely mistaken since Article XXV was enacted in 1989 and: was not in force at the time the Northwind Village project plans were! submitted or at the time the site approval was granted. Your attempt to' ii apply select paragraphs of Article XXV while completely ignoring)1 paragraph 100-255(B) Article XXV is beyond understanding. The subject! paragraph states: ' ` i "All site plans which have received final approval prior to the enactment of this Article s dr i ! ` a period of three (3) years fr. ,� ch .. enactment. This period will begin all governmental approvals have been obtained. , • i APR 5 1990 ^ . ! ' | ` / r To Mr. B. Orlowski, Jr. Page 2 of 2 Re: Site Plan-Northwind Village April 4, 1990 |^ Second, your letter states that the ,parking layout and site plan, will also have to be reviewed and approved by the Board. Once again, all the information necessary for a site plan review, including but not , limited to a parking layout was submitted, reviewed and the site plan , ' approved by the Southold Planning Board on July 11, 1983 indicating full compliance with the intent and regulations of all the paragraphs | of Article XIII-"Site Plan Approval" of the Town Code in force at that '' time. Since these plans have already been reviewed and approved, I . believe that further consideration would be both superfluous and unfair. Nevertheless, as noted above, a copy of the approved site plan is enclosed for your files. Finally, your letter states that a valid water and sewer contract approved by the Village of Greenport will have to be obtained. As you are no doubt aware, I currently have an action pending in federal court challenging the actions by the Village of Greenport in failing to approve and/or to act upon my applications for water and sewer services. I am hopeful that such litigation will be completed and that this final barrier will be removed in the near future. Needless to say, your letter obviously came as a great surprise. I find it rather ironic to say the least, that a project that has been pending .. for the past seven years, should, after discussions with the Village of : Greenport, receive your concerted attention. I am particularly concerned about the timing of your letter, which arrived during the pendency of my motion for summary judgement in my federal court action against the Village of Greenport. I believe it would be inappropriate for the Southold Planning Board to be taking any action to prejudice my litigation by suggesting that there are additional requirements to what has always been considered a final site plan approval. I must therefore ask that you rescind your letter of March 29, 1990 so that there will be no doubts about the approval already granted to Northwind Village. If indeed the issue of site plan approval has been resurrected solely for the purpose of hindering my litigation, I shall take approoriate legal action. Very / 4fy _ou ,==.444,07414r = 4r / E. M. 'ontokosta ^ EMK/ck cc: Mr. Scott L. Harris, Supervisor Town of Southold Enclosure: -_____'_ EXPRESS MAIL ID' APR - 5 1990 SO6THOLD TOWN • PLANNING BOARD ,____ GORDON, GORDON & TEPPER, P.C. Pd uis If ,Ia 3 PARK AVENUE 28TH FLOOR , I ` NEW YORK,NEW YORK 10016 I 1 ,l (212)725-3700 II l , TELECOPIER(2 1 2)481-5471 Hli _ I , MURRAY A GORDON(1944-1965) CABLE ADDRESS i. ' ' KENNETH E.GORDON ••MURAGOR NEWYORK"1 , ARTHUR L.TEPPER* 1! 1 ARAGAW MEHARI , TERI L.SHULMAN•• ' i ,' STEVEN J.SALTIEL••• April 10 , 1990 , , I G •ADMITTED IN NY&FL '. I ••ADMITTED IN NV&CT I "'ADMITTED IN NY&NJ GI IId Mr. Bennett Orlowski, Jr. - ' i! ' Chairman GI Southold Planning Board . IL Town of Southold Town Hall, 53095 Main Road • ` ' P.O. Box 1179 Southold, NY 11971 li Dear Mr. Orlowski: Our firm represents Mr. Emanuel Kontokosta and Kace Realty Co. in connection with their federal court litigation against the Village of Greenport. Mr. Kontokosta has shared with me your letter to him dated March 29 , 1990 . As is more fully set forth in Mr. Kontokosta's letter to you of April 4, 1990 , ' I both the substance and the timing of your letter were very troubling. The substance of your letter was troubling because the ; site plan for Northwind Village was approved by the Planning Board in 1983 . The timing of your letter has caused concern because it arrived shortly after my office submitted its papers .. in support of our motion for summary judgment in the above- _ mentioned litigation. Particularly disturbing to us was the possibility that the Village of Greenport may have encouraged your letter of March 29, 1990 in an effort to defeat our motion. It would obviously be inappropriate for the Planning Board to be a party to such an effort, and we hope that that has not occurred. I As is explained in Mr. Kontokosta' s letter to you of April 4 , 1990, it is inappropriate for the Planning Board to reconsider what it already approved in 1983. The site plan approval already acted upon by the Board necessarily included drainage, i' ; grading and parking. ---i7-; R� _: _7-- - - H ) I:? !Er, 0., [1 ,,,, :' l x g APR I z 1990 EXHIBIT M ' I 1, ' ? * ,/ GORDON, GORDON & TEPPER, P.C. Mr. Bennett Orlowksi, Jr. April 10, 1990 Page Two. To eliminate any confusion, we must request that you rescind your letter of March 29 , 1990 . O . Very truly yours , GORDON, GORDON & TEPPER, P.C. enneth E. Gordon KEG;jTEL • w y' z APR 1 2 1990 ?�� BOARD OF HEALTH �(j(n j(J FORM NO. I 3 SETS OF PLANS TOWN OF SOUTHOLD SURVEY j BUILDING DEPARTMENT CHECK TOWN HALL SEPTIC FORM -- - SOUTHOLD, N.Y. 11971 DEC TEL: 765-1802 TRUSTEES NOTIFY: CALL Examined 20.... MAIL TO. Approved .... Permit No. • .. Disapproved a/c — ! (Building Inspector) APPLICATION FOR BUILDING PERMIT November 16 200( Date ,2G.... INSTRUCTIONS a. This application must be completely filled in by typewriter or in ink and suilmitted to the Bidding Inspector 3 sets of plans, accurate plot plan to scale. Fee according to schedule. b. Plot plan shoving location of lot and of buildings on premises, relationship to adjoining premises or public streets or areas, and giving a detailed description of layout of property must be drawn on the diagram which is part of thin application. c. The work covered by this application may not be oamenced before issuance of Building Permit. d. Upon approval of this application, the Building Inspector will issue a Building Permit to the applicant. Sod permit shall be kept on the premises available for inspection throughout the work. e. No building shall be occupied or used in thole or in part for any purpose whatever until a Certificate of Occupancy shall have been granted by the Building Inspector. APPLICATION IS HERWI MALE to the Building Department for the issuance of a Building Permit pursuant to the Building Zone Ordinance of the Yawn of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations, for the constuctioo of buildings, additions or alterations, or for removal or deaolitron, as herein described. The applicant agrees to canply with all applicable laws, ordinances, building code, housing code, and regulations, and to admit authorized inspectors on premises and in building for necessary inspections. KACE DEVELOPMENT CORE (Signature of applicant, or nae, if a corporation) . ..C...K011tAISAS.ta (Mailing address of applicant) 43 West 54th Street, NYC 10019 State whether applicant is miner, lessee, agent, architect, engineer, general contractor, electrician, plusher or built General Contractor Name of ner of premises KACE LI LLC ca (as on the tax roll or latest deed) If applicant is a corporation, signature of duly authorized officer. This ermit Application is (Name and title of corporate officer) for ar//r L DING No 15. in Nortrhwind Village Builders License Pb. j Plumbers License No. Electricians License No. Other Trade's License lb. - Northwind Village - Approved Site Plan I. Location of land on which proposed work will be done North Road Greenport House Naber Street Hamlet County Tax lisp lb. 1000 section Q 4 Q Block 3 Lot 1 Subdivision T- / ! -. Filed Map No. Lot (Name) 2. State existing use and occupancy of premises and intended use and occupancy of proposed construction: a. Existing use aril occupan VACANT LAND b Intended use and occupancyMulti-family use as per approved site plan n1 /1 EXHIBIT N . i.dWAI "" Demo'ition Other Work 4• (Description) Estimated Cost $240,000 fee • (to be paid on_filing this application) 5. If dwelling, number of dwelling units four (4) ' two and 1/2 o dumber of dwelling(,nits a, each floor f If garage, number of cars .t f 4? four garages two 6. If business, eamercial or mixed occupancy, specify nature and extent of each type of use 7. Dimensia>Is of existing structures, if any: Prom Rear Depth height !'lumber of Stories Dimensions of sane structure with alterations or additions: Front Depth Height Rear Number of Stories 8. Dimensions of entire new construction: Front 92 -8" Rear 92'-8" Depth 55'-6" Height 18 -6" Number of Stories ,,,1+attic, 2+attic p 9. Size of lot: Front 745.88 bear variesDepth var 1214 ft 10. Date of Purchase 1982 Name of corner Omer smith, s a n z o n e II. Zone or use district in which premises are situated M (bid Zoning Resolution) 12. Does proposed construction violate any zoning laordinance or regulation: No w 13. Will lot be regraded Yes Will excess fill be removed from premises: x x yEs 14. Nares of Owner of premises KACE LI LLC 43 W. 54th St X212-58% Address Phone No Name of Architect Kontokosta Assoc. /i3 W. 54th St 71g Ni; Address No. 6.1 Q0. ReContractor KACE Develripment Address PO Box 67. Greenport 516=47; 15. Is this property within 300 feet of a tidal wetland? *YES x x x x x x Rhone 23 23 NJ *IF YES, SQIUi7LD 1DRI'MUSTERS PT MAY 151 PLOT DIAGRAM Locate clearly and distinctly all buildings, whether existing or proposed, and indicate all set-back dimensions frac property lines. Give street and block number or description according to deed, and show street names and indicate whether interior or corner lot. SEE NORTHWIND VILLAGEAPPROVED SITE,PLAN July 11, 1983 • • TATE Of Nal YORK, Ol1CIlY OF Suffolk SS C.E. Kontokosta for KACE Development Corp Kane of individual signing contract) being duly the deposes and says that he is applicant • bove named, e i5 the agent for the contractor (Contractor, agent, corporate officer, etc.) r said owner or owners, and is duly authorized to potions or have performed the said work and to sake and file this pplication; that all statements contained in this application are true to the best of his knowledge and belief; and hat the work will be performed in the manner set forth in the application filed therewith. -porn to before me this � c./4-- day of/!!(!C11./�.4. 20dr, 7 Notary Publis7.04 EMILY HAMILL � t. Notary Public,State of New York of App is i No 01HA5059984 Pres Qualified in Suffolk County Commission Expires May 06�+ ,1')r? -1) BOARD OF HEALTH FORM NO. I 3 SETS OF PLANS niton, i r� ! TOWN OF SOUTHOLD SURVEY „ I BUILDING DEPARTMENT CHECK TOWN HALL SEPTIC FORM SOUTHOLD, N.Y. 11971 DEC - TEL: 765-1802 TRUSTEES • NOTIFY: CALL Examined , 20..., MAIL TO• Approved . , ..•. Permit No. ... • Disapproved a/c • (Building Inspector) APPLICATION FOR BUILDING PERMIT November 16 20 Date ,2C. INSTRUCTIONS a. This application must be completely filled in by typewriter or in ink and submitted to the Building inspect, 3 sets of plans, sea rate plot plan to scale. Fee according to schedule. b. Plot plan sharing location of lot and of buildings on premises, relationship to adjoining premises or p ; streets or arena, and giving a detailed description of layout ubi of property must be drawn on the diagram which is part this application. c. The work chvered by this application may not be carmenced before issuance of Building Permit. d. Upon approval of this application, the Building Inspector will issue a Building Permit to the applicant. S permit shall be kept on the premises available for inspection throughout the work. e. No building shall be occupied or used in whole or in part for any purpose whatever until a Certificate of Occupancy shall have been granted by the Building Inspector. APPLICATION ISMEIN MAB: to the Building Department for the issuance of a Building Permit pursuant to the Building Zone Ordinance of the Tbwn of Southold, Suffolk County, New York, and other applicable Laws, ordinances or Regulations, for the construction of buildings, additions or alterations, or for removal or demolition, as herein described. The applicant agrees to canply with all applicable laws, ordinances, building code, housing code, and regulations, and to admit authorized inspectors on premises and in building for necessary inspections. KACE DEVELOPMENT CORP' (Signature of applicant, or nano, if a corporstior ' ....c1.o..C.,.Kontnkgs.ta (Mailing address of applicant) '43 West 54th Street, NYC 10019 State whether applicant is owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or bu General Contractor Naof owner of premises KACE LI LLC Nam (as cm the tax roll or latest deed) If applicant is a corporation, signature of duly authorized officer. This Permit Application is (Name and title of corporate officer) for RrtTLDING No 26 in Northwind Village Builders License No. -- Plurbers License No. • Electricians License Na. Other Trade's License No. 1. Incation of land on which North'wind Village - Approved Site Plar proposed work will be done North Road Greenport House Haber Street Hamlet County'lir Map No. 1000 Section Q40 Block 3 int 1 Subdivision Filed Map No ( ) . ivt 2. State existing use and omspeocy of prenises and intended use ant occupancy of proposed construction: a. Existing use and occupancy VACANT LAND b. intended use and occupancy Multi-family use as per approved site plan h3/9 5 EXHIBIT 0 i ' 1 I "t iurdv&L""•"'_.." Demolition Other Work •••Lu•uLlul 4. Estimated Cost $240.,000 (Description) fee 5. If dwelling. f (to be paid on filing this application) , number of dwelling f ngunite 0ur (4)ldwelling of units on each floor two and 1/2 of If garage, nludner of cars .t j 4) four 5arages two 6. If business, commercial or mixed occupancy, specify nature and extent of each type of use 7. Dimensions of existing structures, if any: Front Rear Depth height Dimensions of limber of Stories sane structure with alterations or additions: Front Depth Height Rear Number of Stories 8. Dimensions of entire new construction: Front 921-8" Rear 92'-8" 55'-6" Height 18 -6" Number of Stories 1+attic, 2+attic Depth 9. Size of lot: : Front 745.88 Rear varies Depth v e r 1214 ft 10. Date of Purdtase 1982 smith,of Former Owner s a n z o n e II. Zone or use district in which premises are situated M (Old Zoning Resolution) 12. Does proposed'construction violate arty zoning law, ordinance or regulation: No 13. Will lot be regraded Yes Will excess fill be removed from ym 14. Names of Owner of premises KACE LI LLC premises: xx Address W. 54thhemSt X212-582 Kane of Architect W. 54th St N°.2.1 6'gQ Kontokosta Assoc. 43 W Address Phone Name of Contractor KACE Deva]ripment Address PO Box 67. Green 516 6.1007 I port Hnone No. •15. Is this property within 300 feet of a tidal wetland? * Yw xxxxxx 2323 • *IF YES, SOUlltiD ICUN TRDSLEES LflT HAY BE REQUIRED. PLOT DIAGRAM Locate clearly and distinctly all buildings, whether existing or proposed, and indicate all set-back dimensions from property lines., Give street and block umber or description according to deed, and whether interior or corner lot. show street names and indicate , SEE NORTHAILND VIELAGEAPPROVED SITE PLAN July 11 , 1983 • I • f I TAM OF NEW YDOK, BEY Suffolk' SS C.E. Kontokosta f;or KACE Development Cgrp I - being duly sworn, Name of individual signing contract) deposes and says that he is the applicant • bove raced, e is theagent for the contractor (Contractor, agent, corporate officer, etc.) f said canner or uv,iers, .mx1 is duly authorized Lo perionn or have performed the said work and to make and file this pplicatiow; that all slate enla contained in this application are true-to the best of his knowledge and belief; and That the work will be performed in the manner set forth in the application filed therewith. .?orn Lo before me this c;2° day of!f9dC4jy,.e•�i. 2000 7 Notary Public�' y�4.Gc�.. 4 (----)c, i,, EMILYHAMILL (Signature of Applic! t) Notary Public.State of New York Pres No.01 HA5059984 Qualified in Suffolk Coumr Commission Expires May 06 ,..? "12 y j _,�.. 74,4 4 f �� �, 4 ' �� I, BOARD OF HEALTH L 1 ��' J FORM NO. I 3 •SETS OF PLANS LTOWN OF SOUTHOLD SURVEY - - - --FL-A., r. = BUILDING DEPARTMENT CHECK I TOWN HALL SEPTIC FORM 1 SOUTHOLD, N.Y. 11971 DEC , 1; TEL: 765-1802 TRUSTEES - • NOTIFY: CALL H Pas;nined 20.... MATT. TO• Approved , .... Permit No. " i ' - . - Disapproved a/c „ ,I (Building Inspector) APPLICATION FOR BUILDING PERMIT November 16 20 Date ,2G. INSTRUCTIONS • a. Ibis application oust be canpletely filled in by typewriter or in ink and submitted to the Building inspect 3 sets of plans, accurate plot plan to scale. Pee according to schedule. b. Plot plan &bowing location of lot and of buildings on premises, relationship to adjoining premises or publi streets or areas, and giving a detailed description of layout of property must be drawn on the diagram which is part , this application. • c. The work covered by this application may not be camienced before issuance of Building Permit. d. Upon approval of this application, the Building inspector Grill issue a Building Permit to the applicant. S permit shall be kept on the premises available for inspection throughout the work. e. No building shell be occupied or used in wbble or in part for arty purpose whatever until a Certificate of Occupancy shall have Been granted by the Building Inspector. APPLICATICN IS BEEEHf MAME to the Building Department for the issuance of a Building Permit pursuant to the Building Zone Ordinance of the Town of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations, for the Construction of buildings, additions or alterations, or for removal or demolition, as herein described. The applicant agrees to comply with all applicable laws, ordinances, building code, housing code, and regulations, and to admit authorized inspectors on premises and in building for necessary inspections. KACE DEVELOPMENT CORP' (Signature of applicant, or name, if a corporatia ....C10—C—.KOntAns.ta (Mailing address of applicant) 43 West 54th Street, NYC 10019 State whether applicant is owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or bu General Contractor I Name of ewer of premises KACE LI LLC (as cn the tax roll or latest deed) / Iflicant is a app corporation, signature of duly authorized officer. This Permit Application is (Name and title of oo;rporate officer) for ar1TLDING No Irr in • Northwind Village Builders License No. — Plumbers License No. Electricians License No. Other Trade's License No. Northwind Village - Approved Site Pla , I. Location of land nn which proposed work will be done North Road Greenport House Number I Street • Hanlet County Tann Map No! 1000 Section 040 Block 3 Lot 1 Subdivision Filed Map No. int ' (Nam) 2. State existing use and occupancy of premises and intended use and occupancy of proposed construction: a. Existing use and occupancy VACANT LAND • b Ince:ded use I occupancy Multi-family use as pet 'approved site plan z.." /;- 9 EXHIBIT P — ...... AliAllollUli 106Nall'ulLui"° Dowlitkm Other Work "..11...n, (Description) 4. Estiinated Cost $2 4 0,000 fee (to be paid on filing this application) ) 5. If dwelling. nunber of dwelling units four (4)Nunber of dwelling units on each floor two and 1/2 of two f 4) four garages If garage, umber of cars .t 6. If business, cannercial or mixed occupancy, specify nature and extent of each type of use 1 . _ 7. Dinensionsiof existing structures, if any: Front Rear Depth 1 Wight 1 thither of Stories Dircensionsiof mine structure with alterations or additions: Front Rear ' Depth height Nunber of Stories 8. Dimensions lof entire new construction: Front 92'-8" Rear 921-8" Depth 551-6" Height 1 8'-6" timber of Stories 1+attic, 2+attic 9. size of lot: Front. 745.88 ,.., &,,r varies Depth var 1214 ft 10. Date of Pur[chase 1982 Name of Fonner Owner smith, sanzone 11. Zone or use'district in which premises are situated M (61d Zoning Resolution) 12. Does proposed constructionviolate any zoning law, ordinance or regulation: No 13. Will lot belregraded Yes Will excess fill be reamed Frau premises: xxyas m32 1 2-5 8 2 14. Names of Owner of premises KACE LI LLC Addr„s 43 N. 54 t h St Phooe No.2.1LIRR Name of Architect Kontokosta Assoc. Address43 W. 54th St Phone No. ..6.1 ao.. Now of cc,„L.actor KACE Development ,AddressPO Box 67. Gree..-iport 516=477 Phone N°"•2-323'- 15. Is this property within 300 feet of a tidal wetland? * YES No xxXxxx *IF YES SCIUDICID IM MOSIEES PERMIT MAY BE REQUIlm. . 14 PLOT DIAGRAM Locate clearly and distinctly all buildings, whether existing or proposed, and indicate all set-back dimensions Frau property line's. Give street and block timber or description according to deed, and show street names and indicate whether interior or corner lot. 1 I SEE NORTHWIND VILLAGEAPPROVED SITE PLAN July 11, 1983 • I I fAIE OF NEW YORE, SS Suffolk . OUNIY OF C.E. Kontokosta for KACE Development Ccirp being duly sworn, deposes and says that he is the applicant Nane of individual [signing contract) bave named, agent for the contractor e is the , (Contractor, agent, corporate officer, etc.) f said owner or owners, .1151 is duly authorized to perform or have performed the said work and to make and file this pplication; that_ all staterents contained in this application are true lo the best of his knowledge and belief; and hat the work will be performed in the;runner net forth in the application filed therewith. .iorn to before em this 200 dy oa . -[..„.„ NotaryPublic 'L<.::;:. f-*/_.. Lc ,. .f . • .:.. ....00" PlIr EMILY HAMILL ture of Applicant) Pres 'Notary Public,State of New York I No 01HA5059984 , Qualified in Suffolk Co rye Commissron Expires May 06 i 1 (-- .,-„.... � BOARD OF HEALTH I�r• ,I !,I PORN NO. 1 3 SETS OF PLANS ! ,- ' 2 itI' i;'I TOWN OP SOUTHOLD SURVEY BUILDING DEPARTMENT CHECK L- ; I TOWN HALL SEPTIC FORM ; SOUTHOLD, N.Y. 11971 DEC TEL: 765-I802 TRUSTEES • NOTIFY: CALL Enmmnined , 20.... MAIL T0- Approved , •.... Permit No. Disapproved a/c , • (Building Inspector) APPLICATION FOR BUILDING PERMIT November 16 200 Date 26... INSTRUCTIONS a. This application mist be canpletely filled in by typewriter or in ink and submitted to the Building Inspector 3 seta of plans, accurate plot plan to scale. Fee according to schedule. b. Plot plan sharing location of lot and of buildings on premises, relationship to adjoining premises or public streets or areas, and giving a detailed description of layout of property mist be drawn on the diagram which is part o this application. c. The work covered by this application my not be camenced before issuance of Building Permit. d. Upon approval of this application, the Building Inspector will issue a Building Permit to the applicant. Suc permit shall be kept on the premises available for inspection throughout the work. e. lb building shall be occupied or used in whole or in part for any purpose whatever until a Certificate of Occupancy shall have been granted by the Building Inspector. APPLICATIQi IS IEREBY MATE to the Building Department for the issuance of a Building Permit pursuant to the Building Zone Ordinance of the Town of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations, for the construction of buildings, additions or alterations, or for removal or demolition, as herein described. The applicant agrees to oemnply with all applicable laws, ordinances, building code, housing code, and regulations, and to admit authorized inspectors on premises and in building for necessary inspections. KACE DEVELOPMENT CORP' (Signature of applicant, or name, if a corporation) f - ...CI.O..C...KOl1tAkAS.ta (Mailing address of applicant) 43 West 54th Street, NYC 10019 State whether applicant is owner, leasee, agent, architect, engineer, general contractor, electrician, plumber or built General Contractor Name of owner of premises KACE LI L L C (as on the tax roll or latest deed) Iflicant is a app corporation, signature of duly authorized officer. This Permit Application is (Name and title of corporate officer) - --- - �r for rttrTT.DING No `lSg in Northwind Village Builders License No. - Plumbers License No. Electricians License lb. — t f -- Other Trade's License lb. , I. Location of land oawlnitdr Northwind Village - Approved Site Plan proposed work will be cone North Road Greenport House Nuaber Street Hamlet County Tax Map No. 1000 Section 4 4 4 Block 3 Lot 1 Subdivision Filed Map lb. Lot (Nene) 2. State existing use and ooarparcy of premises and intended use and occupancy of proposed construction: a. Existing use sod occupancy VACANT LAND b. Intended use and occuperey Multi-family use as per approved site plan a 9 I� EXHIBIT• Q AgA1BUILDING rutetaurxt Dernlition Other Work (Description) 4. Estimated Cost $240,000 fee (to be paid on filing this application) 5. If dwelling. Thurber of dwelling units four (4)Number of dwelling traits on each floor two and 1/2 of • two If garage, umber of cars t S 4 four garages 6. If business, emarercial or mixed occupancy, specify nature and extent of each type of use 7. Dimensions of existing structures, if any: Front Rear Depth Height Number of Stories Dimensions of same structure with alterations or additions: Front Rear Depth Height timber of Stories 8. Dimensions of entire new construction: Front 921-8" Rear 92'-8" Depth 55'-6" 1leight 18'-6" Number of Stories 1+attic, 2+attic 9. Size of lot: Front 745.88 Rear varies Depth var 1214 ft 10. hate of Purchase 1982 Nare of Former Owner smith, s a n z o n e II. Zone or use district in which premises are situated M (61d Zoning Resolution) 12. Does proposed construction violate arty zoning law, ordinance or regulation: N 13. Will lot be regraded Yes Will excess fill be removed from premises: x x YES prem KACE LI LLC Address 43 W. 54th St 212-582 14. Nares of Owren of sea Phme N°.21 o.2 i Name of Architect Kontokosta Assoc. Address 43 W. 54th St Phone No. ..6100.. Nane of Contractor KACE DeveAddress]npment PO Box 67. Greenport 516=477 Phone b, 2323• 15. Is this property within 300 feet of a tidal wetland? * YES ND x x x x x x *IF YES, SCO HEID TEM itais►r1:.S PERMIT MAY BE REQUIEM. • PLOT DIAGRAM Locate clearly and distinctly all buildings, whether existing or proposed, and indicate all set-back dimensions frau property lines. Give street and block muter or description according to deed, and show street names and indicate whether interior or corner lot. SEE NORTHWIND VILLAGEAPPROVED SITE PLAN July 11, 1983 • • fA IE OF 1154 YORK, GUNIY OF Suffolk , - C.E. Kontokosta for KACE Development being duly swoon, deposes and says that he is the applicant Name of individual signing contract) bove named, agent for the contractor e is the (Contractor, agent, corporate officer, etc.) f said owner or uv,x•rs, mkt is duty authorized to perform or have performed the said work and to make and file this pplicatiot; that all statements contained in this application are true to the best of his knowledge and belief; and That the work will be performed in the manner set. forth in the application filed therewith. .orn to before rre this 7 (Y(� day o t!W' %.I... 2�rJ ... • Notary Public .C .. 4 Zz.c. ��f.�ft // EMILY HAMILL (Signature of Appllcr Pres NotaryPublic.01 New York HA5059984 o Qualified in Suffolk Co Commission Expires May 06 • FORM NO. 3 TOWN OF SOUTHOLD BUILDING DEPARTMENT SOUTHOLD,N.Y. NOTICE OF DISAPPROVAL DATE; December 6,2000' TO Kace L.I. LLC C/o Kontokosta 43 W. 54th Street New York N.Y. 10019 Please take notice that your application dated November 16, 2000 For permit for Multiple dwellings at Location of property North Road (CR48) Greenport County Tax Map No. 1000 - Section 40 Block 3 Lot 1 Subdivision Filed Map#° Lot# Is returned herewith and disapproved on the following grounds proposed multiple dwellings not permitted pursuant to Article IV Section 100-42B.1 which states; Uses permitted by special exception by the Board of Appeals. The following uses are permitted as a special exception by the Board of Appeals, as hereinafter provided, and subject to site plan approval by the Planning Board: (1) Multiple dwellings, townhouses,row or attached houses. Proposed project doesnothave valid Special Exception from the Zoning Board of Appeals. • Authorized Si ture 1.1 EXHIBIT R ., • ,. i.45 FORM NO. 3 TOWN OF SOUTHOLD BUILDING DEPARTMENT SOUTHOLD,N.Y. AMENDED NOTICE OF DISAPPROVAL DATE; July 30, 2001 TO Kace L.I. LLC C/o Kontokosta 43 W. 54th Street New York N.Y. 10019 Please take notice that your application dated November 16, 2000 For permit for Multiple dwellingsat Location of property North Road(CR48).Greenport . County Tax Map No. 1000 - Section 40 _ Block 3 Lot 1 Subdivision Filed Map # Lot# Is returned herewith and disapproved on the following grounds proposed multiple dwellings not permitted pursuant to Article IV Section 100-42B.1 which states-, Uses permitted by special exception by the Board of Appeals. The following uses are permitted as a special exception by the Board of Appeals, as hereinafter provided, and subject to site plan approval by the Planning Board: (1) Multiple dwellings, townhouses, row or attached houses. ' • Proposed project does not have valid special exception from the Zoning Board of Appeals. • Proposed project does not have a valid site plan approval from the Planning Board. • - Note; Above determination based on limited documentation submitted, may require other approvals ▪ pending further review. Auth•,� -• Signature _jl., MI Ij1_ EXHIBIT S Z6t9- iz "'' `-' r I PAGHMAN 8c PAGHMAN, P.G. • I ATTORNEYS AUG I (1 2001 ?L.) 366 VETERANS MEMORIAL HIGHWAY Ty 1 COMMACK. NEW YORK 1 1725 RI_P(' F.: T. (631) 543-2200 ' i ' r�`� };- ;,ir tY TELEGOPIER (631) 543-2271 COUNSEL • HOWARD E. PACHMAN HARVEY B. BESUNDER MATTHEW E. PACHMAN August 8,2001 Ed Forrester,Building Inspector Town of Southold 53095 Main Road Southold,NY 11971 Re: Kace LI,LLC SCTM#1000-40-3-1 Dear Mr. Forrester: As you may be aware, my fine represents Kace LI,LLC with respect to the above-noted matter. As you will recall,by notice dated December 6,2000,(a copy of which is attached for easy reference),you denied the building permit application with respect to the above-referenced site. You,thereafter,filed an amended Notice of Disapproval,dated July 30,2001 (a copy of which is also enclosed for easy reference). It is my understanding that both reasons for your disapproval related to the issue of multiple dwellings, pursuant to Southold Town Code Section 100-42(B)(1). I assume you,through inadvertence,overlooked the approved site plan signed by Henry E. Raynor Jr., as Chairman of the Southold Planning Department, on July 11, 1983, which provided for such multiple dwellings. Not withstanding this approved site plan,please be advised that,in an attempt to bring this long-overdue project to fruition,Kace has agreed,without prejudice,to build the structures, pursuant to this approved site plan, as two family dwellings, and not as multiple dwellings. Kindly process and issue the building permit at your earliest convenience. • Very truly yours, AP" .ncevylir-4k - MATTHEW E. PACHMAN MEP/jiw enclosures -- cc:Kace LI,LLC F\Data\CLIENTS\KONTOKOS\Kace\Cor espondence\Forrester kr]wpd - • • • 11.11.111111111111.11.1 EXHIBIT T 4 6.4" ... � $ i t SSP ! 72.0-0-17:-'1:. August 9, 2001 Pachman & Pachman P.C. 366 Veterans Memorial Highway Commack N.Y. 11725 Attn; Matthew Pachman Re; Kace LI, LLC SCTM# 1000-40-3-1 Dear Mr. Pachman, In response to your letter, dated August 8, 2001, this office cannot process the application in question as two family dwellings. Town Code Article IV Section 100-42A lists the permitted uses in this HD district. Listed is a two family dwelling, it is my understanding that your client proposes several two family dwellings on this parcel. It is my determination that more than one two family dwelling is not permitted, nor are they permitted by special exception. Should your client wish to appeal this determination an application for this project should be presented for disapproval. Sincerely, Edward Forrester Director of Code Enforcement 11. EXHIBIT U yr 01.Jv1.WJLU DULLUuvv rL NIY11a ILL raat..nr£%J1 17II.,DING DEPARTMEN'Jj"•' i --)o you have or need the following,before apr 1'OWN HALL Board of Health SOUTHOLD,NY 11971 3 sets of Building Plans TEL:765-1802 Survey PERMIT NO. Check Septic onn ,/� NY.S.DF.B.C. • - 741ENPCDTrustees _ Examined ,20 Contact: Approved - ,20 /Q/P/7 /C 477 e/( Mail to: Disapproved a/c (ti 15/0 I -_ )L Phone: R° Building Inspector APPLICATION FOR BUILDING PERMIT, 144 • • z Date ./ �� v ,20! INSTRUCTIONS a.This application MUST be completely filled in by typewriter or in ink and submitted to the Building Inspector wi sets of plans,accurate plot plan to scale.Fee according to schedule. b.Plot plan showing location of lot and of buildings on premises,relationship to adjoining premises or public street areas,and waterways. c.The work covered by this application may not be commenced before issuance of Building Permit. d.Upon approval of this application,the Building Inspector will issue a Building Permit to the applicant.Such a per shall be kept on the premises available for inspection throughout the work. a.No building shall be occupied or used in whole or in part for any purpose what-so-ever until a Certificate of Occur is issued by the Building Inspector. APPLICATION IS HEREBY MADE to the Building Department for the issuance of a Building Permit pursuant to tl Building Zone Ordinance of the Town of Southold,Suffolk County,New York,and other applicable Laws,Ordinances or Regulations,for the construction of buildings,additions,or alterations or for removal or demolition as herein described.The applicant agrees to comply with all applicable laws,ordinances,building code,housing code,and regulations,and to admit authorized inspectors on premises and in building for necessary inspections. ccII; LLc. (Signature of applicant or name,if a corporation 48 54 st, I/YC /ov iq • (Mailing address of applicant) State whether applicant is owner,lessee,agent,architect,engineer,general contractor,electrician,plumber or builds Name of owner of premises ji- /9Cg L.1, L tt✓ • (as on the tax roll or latest deed) If applicant is a corporation,signature of duly authorized officer /?. il•<-0,51-rz, 0 5 T,4 (Name and title of corporate officer) • • Builders License No. Plumbers License No. • Electricians License No. Other Trade's License No. 1. Location of land on which roposed work will be done: o r- /4 ui- 20,4 vCSS r op 6,,9P9G House Number Street • Hamlet County Tax Map No.1000 Section ¢(7 Block3 Subdivision Filed Map No. rr• (Name) _".� . . • '- 1 EXHIBIT y i 1 . , State eadstingnse and occnparicy o£pre,.ases and intended use and occupancy t,mp osed construction: / a. Existing use and occupancy VA. ....9,-71 r 4'911.0 • b. Intended use and occupancy /424 7-7-7,40ssr/ -- •Z,--.-.9-4-e/2-}/ DL./E6 .// -5. Nature of work(check which applicable):New Building >/ Addition Alteration Repair R7/2o / i oval Demolition Other Work (Description) Estimated'Cost V/T' Fee (to be paid on filing thisplication) i If dwelling,number of dwelling units Z u,,rrs,/ Number of dwelling units on each floor Z If garage, number of cars 2' If business,commercial or mixed occupancy,specify nature and extent of each type of use. , Dimensions of existing structures,if any:Front Rear Depth Height Number of Stories Dimensions of same structure with alterations or additions: Front Rear Depth . Height Number of Stories. Dimensions of entire new construction:Front Rear Depth Height 25= .Fr- Number of Stories • 7.t o . • Size of lot Front /7 ./�-5 Rear • • • Depth • ," , -F ipp- £7z W.it ).Date of Purchase Name of Former Owner 1.Zone or use district in which premises are situated 74 94--7/-2� 1-/6 1 TX i.Does proposed construction violate any zoning law,ordinance or regulation: Z5 /12J1 s/TF e;49 PI / 71483 1.Will lot be re-graded • `7 Will excess fill be removed from premises: la NO • � � 43 u/ s r S4St 1.Names of Owner of premises 4c 6,GlyLIC Address /-/Ye/ iccoi4 Phone No. 2/-5 5e 6lou Name of Architect ,9,tit- r,/rdJcoa pew Address 43 /,(/- 2c S fi Phone No 2/Z--,5e9. 2'6/0 0 ' Name of Contractor Address/)/'Ye 1/v-o"? Phone No. 5.Is this.property within 100 feet of a tidal wetland?*YES Q• IF YES,SOUTHOLD TOWN TRUSTEES PERMITS MAREQUIRED 5.Provide survey,to scale,with accurate foundation plan and distances to property lines. 5-6.L--- 7. 7.If elevation at point on at 10 feet or below,must provide topographical data on sun• , 1E, z ffiyproperty is eY �/Tr 1)612 CATE OF NEW YORK) SS: OUNTY OF S[Jf/ . • ,. ---7. / //0-0/6-0.5 TV being duly sworn;deposes and says that(s)he is the applicant (Name of individual��sjjigning contract)above named, ')He is the f'< M/3E/2 (Contractor,Agent,Corporate Officer,etc.) • 'said owner or owners,and is duly authorized to perform or have performed the said work and to make and file this application; at all statements contained in this application are true to the best of his knowledge and belief;and that the work will be xformed in the manner set forth in the application•filed therewith. 'Dm to before me this /z day of�/! i.6574 20GX _ �� //ice �`�.�� / Notary Pub c Signature of•m�..,«:ir EMILY HAMILL Notary Public,State of New YArk • No.01HA50599$4 • Qualified in Suffolk Cou�,^ Commission Expires May 06 " FORM NO. 3 'f \ TOWN OF SOUTHOLD • i jl /7 ` :g UILDING DEPARTMENT /1/-1 ' 'iii)1 r? SOUTHOLD, N.Y. 1, F' Fp ,t.of AMENDED ` J4001 }'; NOTICE OF DISAPPROVAL �-Y• DATE; August 13, 2001 TO Kace L.I. LLC C/o Kontokosta 43 W. 54th Street New York N.Y. 10019 Please take notice that your amended application dated August 10, 2001 For permit for Multiple, two family dwellings at Location of property North Road (CR48) Greenport County Tax Map No. 1000 - Section 40 Block 3 Lot 1 • Subdivision Filed Map # Lot# Is returned herewith and disapproved on the following grounds proposed dwellings not permitted pursuant to Article IV Section 100-42A.2 which states; In the HD District, no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or in part, for any use except the following: A. Permitted uses. (2) Two-family dwelling. Proposed project indicates several ( exact amount unknown)two family dwellings on a single parcel. Code allows only one such structure per lot as a permitted use. • Authorized Signature EXHI-BIT W , For Office Use Only: Fee$ app.- s/z3/m I //:yo,a,,.,, . ` Assigned No. 5003-1,) TOWN OF SOUTHOLD, NEW YORK APPEAL FROM DECISION OF BUILDING INSPECTOR DATE OF BUILDING INSPECTOR'S DECISION APPEALED: .... .-q.�..1-'si 43/ ge?.L.. • TO THE ZONING BOARD OF APPEALS: I(We) ACc; LZ LL)) C • / (Appellant rf7�i/f��'y eor..404/l- :, (I 72 S of....J.!?...1 d4f. .".?.�eY... 1 ths/7X./ r 1plo ✓-r g4(' .' # / HEREBY APPEAL THE DECISION OF THE BUILDING INSPECT(` DATED IJull,W.1 ,-2'O/ WHEREBY THE BUILDING INSPECTOR DENIED AN APPLICATION D. '1 NUd ka'o R: • (X) Permit to Build RECEIVED ( ) Permit for Occupancy ( ) Permit to Use &UG 2 9 2001 ( ) Permit for As-Built ' ( ) Other. i aournoru rawr. Clerk 1. LoEation of Property S DF 77`ei&n-i /2� 4-; J r G-'o r- • �n��.krc_ .p. / Zone .../.11' District 1000 Section...*2...Block 3 Lot(s) / CI. • t Owner..t ! g..�4..�W 2. Provision of the Zoning Ordinance Appealed. (Indicate Artic Section,Subsection and paragraph of Zoning Ordnance by numbers. Do not quote fire I-w.) Article Section 100- Sub-Section J n- to q ues flan s 3. Type of AppJeal. Appeal is made herewith for: .2. J ee c�m en z` ( )A Variance to the Zoning Ordinance or Zoning Map ( )A Variance due to lack of access as required by New York Town Law Chap. 62,Cons. Laws Art. 16,Section 280-A. ( )interpretation of Article Section 100- ( )Reversal or Other: 4. Previous Appeal. A previous appeal has ,has noti been made with respect to this property or with respect to this decision of the Buildlrly inspector(Appeal#Yf7Yearo /) ' REASONS FOR APPEAL(Additional sheets may be used with applicant's slanature): AREA VARIANCE REASONS: NA , (1) An undesirable change will not be produced in the CHARACTER of the neighborhood or a detriment to nearby properties,if granted, because: (2) The benefit sought by the applicant CANNOT be achieved by some method feasible for the applicant to pursue,other than an area variance, because: (3) The amount of relief requested is not substantial because: (4) The variance will NOT have an adverse effect or Impact on the physical or environmental conditions In the neighborhood or district because: • (5) Has the alleged difficulty been self-created? ( )Yes, or ( )No. This is the MINIMUM that is necessary and adequate, and at the same time preserve and protect the character of the neighborhood and the health, safety, and welfare of the community. ( )Check this box if USE VARIANCE STANDARDS are '• e ited •nd -f' a` Mr A8' Sworn to beforewe this -23,ee/ „ (Signature of App:I • Authorized Agent) a o 4(f f 0�/�./ (Agent must submit Authorization from Owner) `���/� Notaark bile. ZBA App 08/00 t,1"tate of Notary Public,State of New York No.01HA5059984 Qualified in Suffolk County Commission Expires May 06 -.7�2- 1 _ EXHIBIT X Appeal Application, Continued /Vt. 0 / f itb fe BOARD OF APPEALS:TOWN OF SOUTHOLD COUNTY OF SUFFOLK:STATE OF NEW YORK x 4pplication of Appeal Application(Continued) Property ID# REASONS FOR USE VARIANCE x Continuation of Appeal Application for a Use Variance(when applicable): For Each and Every Permitted Use under the Zoning Regulations for the Particular District Where the Protect is Located(please consult your attorney before completing): (1) The applicant CANNOT realize a REASONABLE RETURN because: (2)The HARDSHIP relates to the property and does not apply to a substantial portion of the district or neighborhood because: (3) The relief requested will not alter the essential CHARACTER of the neighborhood because: (4) Has the alleged difficulty been self-created? ( ) Yes, or ( ) No. (5)This is the MINIMUM that is necessary and adequate, and at the same time will preserve and protect the character of the neighborhood and the health, safety, and welfare of the community because: (6) The spirit of the zoning ordinance will be observed. (7) The public safety and welfare will be secured and substantial Justice done. (Signature of Appellant or Authorized Agent) Sworn to before me this day of 20 . (Notary Public) 1 ZBA App 08/00 APPLICANT TRANSACTIONAL DISCLOSURE FORH The Town of Southold ' s Code of Ethics prohibits conflicts of interest on the part of town officers and emRloyees. The purpose of this form is to provide information which can 1 alert the town of possible conflicts of interest and allow it to take whatever action is necessary to avoid same. YOUR NAME: 63Ce ZCLC LyM. kjOn l0 OSTA (Last name, first name, middle initial, unless you are applying in the name of someone else or other entity, such as a company. If so, indicate the other person 's or company's name. ) NATURE OF APPLICATION: (Check all that apply. ) Tax grievance Variance Change of zone Approval of plat ExemExemption from plat or official map X (If "Other, " name the activity . ) ✓1 ]f �C .ee{A-Tion o�' be,)i' ( u ui ,nI I eea+,'f 3v ?3'u k Pn • �d 1 Do you personally (or through y5 �°�" parent, or child) have a relationshipmwith, anyoofficer pany , born9• employee of the Town of Southold? "Relationship" includes by blood, marriage, or business interest. "Business interest" means a business, including a partnership, in which the town officer or employee has even a partial ownership of (or employment by) a corporation in which the town officer or employee owns more than 5% of the shares. YES _ NO -k If you answered "YES, " complete the balance of this form and date and sign where indicated. Name of person employed by the Town of Southold Title or position of that person Describe the relationship between yourself ( the applicant and the town officer or employee . Either check the ) appropriate line A) through D) and/or describe in the space provided. The town officer or employee or his or her spouse, sibling, parent, or child is (check all that apply) : A) the owner of greater than 5% of the shares of the corporate stock of the applicant (when the applicant is a corporation) ; a) the legal or beneficial owner of any interest in a noncorporate entity (when the applicant is not a corporation) ; C) an officer, director, partner, or employee of the applicant; or D) the actual applicant . DESCRIPTION OF RELATIONSHHIP Attachment to KACE LI,LLC's application The Southold Town Planning Board approved the site plan on July 11, 1983 (a copy of a letter from Planning Board Chairman Henry Raynor, dated July 14, 1983, confirming this is enclosed for easy reference). Southold Town Code §100-255(B) states: All site plans which have received final approval prior to the enactment of this Article shall remain valid for a period of three years from the date of such enactment. This period will begin when all governmental approvals have been obtained. (Emphasis supplied) Since the Suffolk County Water Authority has not yet issued its approval, this period has not yet commenced. F\Data\CLIENTS\KONTOKOS\Kace\Correspondence\applicat ion.rev wpd • • av x' i rtR°- it tt • NOTICE OF PUBLIC HEARING 6 P SOUTHOLD TOWN BOARD OF APPEALS THURSDAY, SEPTEMBER 20, 2001 NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and Chapter 100 (Zoning), Code of the Town of Southold, the following application will be heard at a public hearing by the SOUTHOLD TOWN BOARD OF APPEALS at the Town Hall, 53095 Main Road, Southold, New York 11971, on THURSDAY, SEPTEMBER 20, 2001, at the time noted below (or as soon thereafter as possible): 8:45 p.m. Appl. No. — KACE LI, INC. This is an Appeal requesting a Reversal of the Building Inspector's.Notice of Disapproval dated August 13, 2001, denying an application for a building permit for two-family dwellings under Article IV, Section 100-42A.2. The reason stated 'in the Notice of Disapproval is that the proposed project indicates several two-family dwellings on a single parcel, and that the Code allows only one such structure per lot as a permitted use. Zone •t, District: Hamlet-Density (HD). Location of Property: South Side of North Road (a/k/a C.R. 48) (now or formerly referred to as "Northwind Village" site), 500+-feet east of Chapel Lane, Greenport.; Parcel #1000-40-3-1. The Board of Appeals will hear all persons, or their representative, desiring to be heard at the hearing, or desiring to submit written statements before the conclusion of the above hearing. This hearing will not start earlier than designated. Files are available for review during regular Town Hall business hours (8-4 p.m.). If you have questions, please do not hesitate to call (631) 765-1809. Dated: August 23, 2001. GERARD P. GOEHRINGER, CHAIRMAN SOUTHOLD TOWN BOARD OF APPEALS Town Hall 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 1.1 EXHIBIT Y i SOUTHOLD TOWN BOARD OF APPEALS ' - TRANSCRIPT OF HEARINGS " HELD SEPTEMBER 20, 2001 (Prepared by Paula Quintieri) , Present were: Chairman Goehringer Member Dinizio Member Tortora Member Collins Member Horning , Linda Kowalski, Board Secretary , Paula Quintieri, Secretary PUBLIC HEARING: 6:37 p.m. Appl. No. 4993 —MICHAEL AND JOANN DEANGELO. This is an appeal , for a Variance based on the Building Inspectors July 25, 2001 Notice of Disapproval regarding the proposed location of a swimming pool in a yard other than a rear yard, required by Code Section 100-33. Location of Property: 2080 Elijah's Lane (and Birchwood Road), Mattituck; Parcel #1000-108-3-5.015. (to be inserted) 10:48 p.m. Appl. No. 5003 —KACE LI, INC. This is an Appeal requesting a Reversal of the Building Inspector's Notice of Disapproval dated August 13, 2001, denying an , application for a building permit for two-family dwellings under Article IV, Section 1000-42A.2. The reason stated in the Notice of Disapproval is that the proposed project indicates several two-family dwellings on a single parcel, and that the Code allows only one such structure per lot as a permitted use. Zone District: Hamlet-Density (FID). Location of Property: South Side of North Road (a/k/a/ C.R. 48) (now or formerly referred to as "Northwind Village" site), 500+- feet east of Chapel Lane, Greenport; Parcel#1000-40-3-1. CHAIRMAN: Mr. Pachman, we honestly feel that the file is somewhat deficient in some of the information that we would really need to understand this; so we would hope that PA -SEPTEMBER 20,2001 ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD upon the presentation tonight, we will thoroughly understand this file. If we don't, we're going to ask you to enhance it more after this hearing. I would appreciate that. MATT PACHMAN: Very good, Mr. Chairman. Thank you. CHAIRMAN: Mr. Forrester, you've sat back there patiently for the last hour and a half. You have been a wonderful person to this Board, and we ask you to come forward and shed some light on this Notice of Disapproval that you had written. I believe we're discussing the August 13, 2001, and any other notes you'd like to shed. ED FORRESTER: Okay. During this Notice of Disapproval the application was submitted to my department August 10, 2001. The applicant had previously filed for a project of construction to develop this site. This is an amended application as noted on his application. The use let me back up to August 8th. On August 8, 2001, I received a letter from the applicant's attorney where council has requested I review the application as two-family dwellings and not as multiple dwellings, as previously applied for. I responded to the request, in a letterform, requesting a formal application as I and in a Notice of Disapproval, if he wanted to appeal it, I need the application to formerly process the Notice of Disapproval. On August 10th, I received the application. I believe the Board has a copy of it. CHAIRMAN: Yes, we do. ED FORRESTER: In applying the Code, code analysis to the project, if you look at the intended use the appropriate Section of Code in the case is 100-44 HD District. That's what the parcel falls within. To propose to erect several two-family dwellings on the lot. The Interpretation of Code as permitted uses, under Permitted Uses 100-42A.2. The permitted use is a two-family dwelling. That is my determination, that a single two- family dwelling was a permitted use, several two-family dwellings were not. A Notice of Disapproval was issued based on that determination, signed on that date. CHAIRMAN: Does the Board have any questions of Mr. Forrester, at this time? MEMBER TORTORA: Not at this time, no. CHAIRMAN: Mr. Forrester, if we could just ask you to stay for about another ten minutes; and we'll give you the old high sign, and we will wish you a safe home at that point, okay. Thank you. Mr. Pachman, I think this is what you were looking for. MATT PACHMAN: Thank you Mr. Chairman. I appreciate it, thank you so much. CHAIRMAN: Mr. Pachman, we are going to entertain your presentation, possibly with some reservations based upon what counsel has suggested to us. So if there's some change or something that we construe not to be, we may mention that to you. PAGE 3-SEPTEMBER 20,2001 ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD MATT PACHMAN: Mr. Chairman, if I could guess that, if I understand the nature of this hearing if you might just elaborate on what you did say based upon Town attorney I think it would relevant and important, and only fair that I understand what that was. What I understand the limitations that the Board is looking for. CHAIRMAN: We are not really going to entertain any questions regarding site plan tonight. We're not involved in that issue at this point. We want to understand the application first. Counsel, unfortunately is out of the State. He would have been here with us tonight. We are going to ask you to come back and complete this hearing on the 4th of October with us, if you are available, which is at a Special Meeting. If not, we can make some other provisions. But thought it was going to be The 2nd of October, but unfortunately we are not available at that time. ROBERT YOUNG: Mr. Chairman, could we possibly address you as an interested party. We are, the numbers here are directly on the other side of the road. We've had very little notice of this. We are trying to organize our thoughts. Organize our actions, and we got notice on the 13th, postmarked certified mail. In light of the events of last week, it was very difficult to contact people. October 2nd is much too early for us. CHAIRMAN: We understand that sir. That doesn't mean we're going conclude it on that night. All that very simply means is that we are going to, we will probably continue from that particular point on. I understand that, and I want you to be aware that, in my particular situation, it takes me sometime to understand exactly what applicants, this is a generic statement, are requesting. Therefore, I like to take it in stages, rather than try to cram it into one specific hearing notice and one specific time. If you have specific concerns regarding this, then you are certainly welcome to voice them. The hearing will remain open. We will accept letters from you or from any spokesperson from your group. Mr. Pachman, we're ready any time you are. MATT PACHMAN: Mr. Chairman, I'm sorry, but the person that spoke, if I could have their name for the record. ROBERT YOUNG: Robert Young, 62625 C.R. 48. MATT PACHMAN: Now. Mr. Chairman I certainly will proceed tonight and I appreciate the opportunity. The reason why I ask you that, and I appreciate that you gave me that explanation because when you hear our application, I think you will understand that we're not asking this Board to make any determination with respect to the site plan. It's our condition that the site plan is in effect. That's why I'm interested in understanding what your council's conversation with the Board was with respect to it. In any event, I will proceed at this point, and hopefully I can give. CHAIRMAN: You will be able to discuss that with counsel on October 4th. He is not coming back until the latter part of September, so therefore that is the, normally we would try to meet next week but it will be the week after. PAGE 4-SEPTEMBER 20,2001 ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD MATT PACHMAN: Well then, Mr. Chairman and Members of the Board, my name is Matt Pachman, Pachman and Pachman, 366 Veteran's Memorial Highway in Commack, New York. This application is an appeal requesting an interpretation reversing the Building Inspector's Notice of Disapproval dated August 13, 2001, which denied the application for a Building Permit for two-family houses under Article 4, Section 142.A of the Town Zoning Code. KACE LI INC is the owner of a 70-acre parcel of land located on the south side of Route 48, near the juncture of Chapel Lane. The property has been owned by KACE or it's predecessors since March 10, 1982, which is approximately 19 t/2 years. On July 11, 1983, the Southold Planning Board approved a Site Plan for Kace to build a condominium development at the subject property known as "Northwind Village". Mr. Chairman, I would like to hand up to the Board copies of the Site Plan, signed by Henry Raynor, as Chairman of the Planning Board on that date. CHAIRMAN: I just want you to know Mr. Pachman, that counsel may resort to return those; I have no idea at this point. We'll accept them at this point, temporarily. MATT PACHMAN: Very good Mr. Chairman. CHAIRMAN: I don't like to load anybody up here, I'm telling you straightforward. MATT PACHMAN: Well, Mr. Chairman you mentioned something that I really don't understand it, because the very essence of our application here is that, as a matter of law, the building Inspector could not deny this Building Permit because of the approved Site Plan. So when there is a statement that it be on a Site Plan, which is the basis of the application that you've heard or that the court is not going to entertain any questions about the Site Plan. CHAIRMAN: Well, actually there's a little more. We weren't even going to accept any testimony about Site Plans. I'm just telling you what council told me. MATT PACHMAN: Okay, very good. Pursuant to the Suffolk County Sanitary Code, Chapters 760, no parcel of real estate can be commenced or to be developed until the Suffolk County Department of Health, has approved the proposed water supply and » sewage disposal facilities and pursuant to the Town's Zoning Code 85.8 Subdivision G, before a Building Permit can be issued to commence construction of the property Kace had to obtain the approval for the proposed water supply and sewage disposal system r. from the Suffolk County Department of Health. In 1983, and Mr. Chairman, I'm going into the chronology because it's very important to understand why we say that the Building Inspector, as a matter of law, improperly turned down this Building Permit Application. CHAIRMAN: You're talking about the current August 13th. MATT PACHMAN: Absolutely. You can't understand the nature of our belief that the Building Permit Application denial is improper without understanding the history. In 1983 the Trustees of the Village of Greenport acting in their capacity as the Board of PAGE 5-SEPTEMBER 20,2001 ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD Water Commissioners, administered an exclusive franchise for the services of Water and Sewer for this territory beyond the limits of the Village of Greenport, which include the subject parcel. This satisfied the requirements of the Suffolk County Department of Health that I just mentioned to obtain the required approval. All proposed building projects where construction, housing, or sewer development, in this area such as the Northwind Village project, had to obtain the approval from Greenport for water and sewer services at that time. On January 10, 1983, Kace applied to Greenport for water and sewer approval for the project. The Utilities Committee of the Villa, which assisted the Village Board in administering this franchise accrued Kace's project for water and sewer services and referred the matter to the Building Board, and the Trustees of the Village denied Kace's application on July 18th, 1985. By letter dated December 30, 1986, Kace was informed by the Town of Southold Building Inspector that a Building Permit is ready to be issued for this project and the only thing it needed was water and sewer approval from Greenport and I have a copy of that December 30, 1986 letter from the Town Building Inspector confirming this. I'm handing this up to the Board and I ask that this be made a part of the record. On February 24, 1987, Kace again applied to Greenport for water and sewer services for the project. Again, on March 23, 1987 the Utilities Committee of the Village approved Kace's application and sent it on to the Village Board of Trustees. On December 7, 1987, Kace again submitted the application to the Village of Greenport Trustees for approval. The Greenport Trustees, at that time, failed to rule on Kace's application for water and sewer services. As a result, Kace remained unable to obtain water and sewer services for the project. Without that pre- condition, Kace was unable to obtain a Building Permit. On or about May 20, 1987, Kace commenced an action in the United States District Court for the Southern District of New York against Greenport due to its refusal to rule on Kace's application. Now on July 1994, while that Federal Court action was continuing, the Southold Town Board re-zoned the parcel from multiple residence, MI, to HD. On February 6, 1996, a stipulation and order was entered in the Federal Court action and it was so lawyered by U. S. District Court, Shira Shindler and thus made an order of the court. I hand up a copy of that Order of the Federal Court again ask it be made part of the record. Mr. Chairman and Members of the Board, the importance of this Federal Order was that Greenport was ordered to provide sufficient sewer capacity within four years of the execution of the stipulation, in other words, on or before February 6, 2000. The stipulation also said that Greenport acknowledges that it had water capacity at that time, and thus the project had the water approval necessary. Thus the only thing that was keeping this project from getting a Building Permit was the sewer approval from the Village at that time, and the Village had four years until February 6, 2000 to provide sewer services. There was no other pre- - condition, no other requirement, no other hurdle as determined by the Southold Building Inspector to return the Building Permit. Prior to the expiration of this February 6, 2000 deadline, as ordered by the Federal Court in that stipulation, in October 1999 the Southold Town Board voted to re-zone this parcel from HD to R80. By judgment dated December 4, 2000 Justice Berler of the Supreme Court Suffolk County overturned the re- zoning and stated it was volatile of the New York State Town Law. The Court said that the purported re-zone was illegal, void and of no effect. I have a copy of that order by judgment from the Supreme Court Suffolk County, which I am handing and I ask that that may be part of the record. PAGE 6-SEPTEMBER 20,2001 ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD CHAIRMAN: Mr. Pachman I just have to ask you to speak a little closer to the mike, i because these people are sitting on the other side of the room. ., MATT PACHMAN: I apologize; I thought I was speaking loud enough. I CHAIRMAN: Just pull it a little closer to you. Thank you. MATT PACHMAN: The Town Attorney's office did file a Notice of Appeal with respect to that judgment that I'm referring to from Justice Berler. In a letter dated July 14, 2001, he submitted a stipulation where it formally withdrew that Notice of Appeal. I hand up a copy of that letter of transmittal to the Clerk of•the Second Department Appellate Division which had that stipulation. That withdrawal ended that litigation, and thus the property today remains HD. Since that time the applicant has been seeking to get the Suffolk County Water Authority to abide by the terms of the Federal Court stipulation and provide water to the project. As this Board is aware, the Village of : ! Greenport sold the franchise with respect to water to the Suffolk County Water Authority. The Suffolk County Water Authority is a successor, and thus we now have to deal with that entity. Mr. Chairman and Member of the Board, Kace has been caught in the proverbial revolving door. Its Building Permit was subject to and conditioned upon authorization from Greenport to connect to its water and sewage system. Again, I emphasize that was the only last remaining pre-condition to obtain the Building Permit. , As I noted, Greenport initially denied the application for water and sewer, the applicant , had to go to Federal Court. The Federal Court Action was resolved by an order of the Federal Judge saying that the Village and now the Suffolk County Water Authority had ' ' until February 2000 to provide water and we're still, at this point, exempted to enforce that stipulation. Southold Town Code Section 100.255B states "All site plans should receive final approval prior to the enactment of this Article shall remain valid for a period of three years from date of such enactment. This period will be given of all governmental approvals had been obtained. Since the Suffolk County Water Authority has not yet issued its approval for water, this period has not been commenced. Again, Mr. Chairman and Members of the Board, the reason why I'm taking this time at this late hour to go in detail through the chronology and to explain the long and detailed history of this project, is because it is essential, Mr. Chairman, to understanding why, at this late date when that was the only pre-condition to obtaining a Building Permit, why it is improper for the denial of the Building Permit now. The only change with respect to this project, since the 1983 site plan approval is that the Zoning classification of the property has changed from light multiple residence to HD. Now, Mr. Chairman, I hand up copies of the pertinent portions of the Southold Zoning Code, the M1 Zoning Code in 1983 and the HD Zoning Code now. I ask that these collectively be made part of the record. BOARD SECRETARY KOWALSKI: (Received (8) Exhibits) This copy (Exhibit 7) is M light, no M1? Did you mean M light? MATT PACHMAN: It's specifically M1 Zoning. PAGE 7-SEPTEMBER 20,2001 ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD BOARD SECRETARY KOWALSKI: But this is (a copy of) the M Light that you're -., submitting? MATT PACHMAN: That's the zoning. BOARD SECRETARY KOWALSKI: So it was not zoned M Light. MATT PACHMAN: It was zoned M Light, Multiple Residence dwelling. BOARD SECRETARY KOWALSKI: Okay, that was different than Ml. MATT PACHMAN: Yes, M Light Multiple Residence. Thank you for that clarification. Also have copies of what I just handed up on the display board to make it easy, for easy reference. Members of the Board the importance is, that as you can see, the language of these two Codes are word for word identical. No building or premises shall be used, and no building or part of the building shall be erected or altered, which is arranged, intended or designed to be used in all or in part for any use except the following. In 1983 it was Multiple Dwellings, now it's two-family dwellings. So in reality, the only change, the only relevant change to the zoning of this parcel is that multiple dwellings, used to be permitted as a matter of right and they were deleted as a matter of right and instead we have two-family dwellings as a matter of right. The applicant has correspondently changed the plan in only that one respect. Instead of developing the structures as approved on the 1983 site plan for multiple residence it's agreed to develop them for two- family residence, as permitted as a matter of right in the HD Zoning District. There is no other change, there is no change to the site plan whatsoever; no change to the site plan whatsoever. The applicant intends to develop this property as you see on the 1983 site plan, it's going to look identical, and it is identical. Kace is in no way responsible for critactive municipal delay, which I just had detailed to you. It's expended substantial money, time and effort, and was, and remains prepared to commence construction of the project. This site plan has been, at all times and continues to be, valid, pursuant to the express terms of the Southold Town Code. The prior Building Inspector's determination that the Building Permit was issued upon approval by the Suffolk County Water Authority still remains in effect. Mr. Chairman and Members of the Board, the Appellate Division Second Department in the case of Kennedy vs. the ZBA of the Town of North Salem, has ruled that under these circumstances it is arbitrary, capricious and illegal for a • subsequent Building Inspector or, for that matter, for this Board to come to any other conclusion and Mr. Chairman, I hand up a copy of that case for your reference. Mr. Chairman I understand that, based upon what you've said, it's the desire of this Board to hold this hearing over to October 4th. I hope you see why it is important to understand the history of this, to understand why we say that this moot denial by the Building Inspector is arbitrary and capricious. I received at 4:05 today, literally as I was walking out the door, a memo from the Planning Board; and although I was going to address that tonight, I will hold that now, hold those comments over for the next hearing, and I would certainly be interested in understanding what the Town Attorney or whoever advised you, this Board about listening to testimony concerning the site plan. And, I think it would be important and only fair, Mr. Chairman, that the applicant has an understanding about PAGE 8-SEPTEMBER 20,2001 , ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD what these supposed ground rules are before we come in here so that there is a level playing field. Because to the degree that we believe that that may not be legally proper. We want to have an opportunity to address it. We filed this application quite some time ago. We filed this application initially in December 2000. The Building Inspector said it r, was denied, multiple family residences longer permitted as matter of right. We amended it for two-family dwellings. I think it only proper that we have an understanding about what anybody advising this Board is saying with respect to this application prior to the next hearing date, so that we may have a full and better opportunity to respond and to not further delay this matter by asking for an adjournment on that day because of information that we're just receiving at that time. CHAIRMAN: I'm not positive I can comment on that tonight. MATT PACHMAN: Mr. Chairman, I'm not asking you to do so. I will say, however, it , is my understanding, I would ask, Mr. Chairman, if there was any type of submission or , memo or anything that the Town Attorney did supply to the Board to discuss this matter. CHAIRMAN: In reality, I explained to you in the beginning that we thought your application was a little deficient, even without counsel, we allowed you to continue with , your not only your chronological order which is certainly helpful to understand. We didn't stop you in any way tonight. MATT PACHMAN: Absolutely, you didn't. CHAIRMAN: We didn't give you the time out sign. We didn't mount any attack towards your presentation. We understand your frustration, we know the applicant very well. I've known Mr. Kontakosta for many years; in fact I've known him since 1976. Working with 57 attorneys in my present position, there are times when attorneys say certain things, and you abide by those. I don't know what the reasoning was. That's all I can say. , MATT PACHMAN: Mr. Chairman, I would just say that if for any reason the Board feels that the application is deficient, I would like to know that, because I would like to have an opportunity to amend that to the Board's satisfaction. The Clerk did request I 7 give an explanation for the Interpretation; I did file what I thought was an adequate , explanation to be supplemented, of course, by the Public Hearing that's why we're here tonight. If there is anything further that the Board needs in terms of the application to , alleviate anything about what you mentioned to you we would like to know it, because given that the Board has held this matter over I would certainly like to provide the Board with all the necessary documents and information to form a complete record. , CHAIRMAN: Do you want to comment on it, Lora? MEMBER COLLINS: I think that the reason why I am and other Members of the Board felt the application, the application placed before us dated 8/23/01 turning into Appeal #5003, it said the Building Inspector has denied our application for the construction of an unspecified number of two-family dwellings on this lot, it said that because we know PAGE 9-SEPTEMBER 20,2001 ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD that's what the Building Inspector said, and it said this is an Appeal but there was no indication in the Appeal you gave it tonight, what you were asking. Tonight you said, you want us to interpret the law and reverse the 8/13 Notice because there exists an old site plan. You mentioned the old site plan in your application but you certainly didn't explain, as you have attempted to do tonight, why the existence of a site plan for a different project, in my view it was a different project, in 1983 was relative to your request. Tonight you have elaborated, at length, and I think therefore from the point of view of feeling the application was inadequate, you filled in the blanks. We certainly haven't gotten to the pros and cons, a key one of which is your assertion that the Building Inspector's statement to your client in 1986 that, "the only bar to a Building Permit was getting water and sewer. But that is a binding, that binds all future Building Department actions". I find that quite an extreme statement and I won't go any further. Those are the things we haven't discussed. I do think, and I think the Chairman will agree, that the issue of the indefiniteness or — I don't have the right word - the lack of definitiveness in your appeal as put before us on paper, has been taken care of by your testimony tonight. MATT PACHMAN: I appreciate that you've cleared that up, and we'll resolve that. Thank you. CHAIRMAN: Thank you, which I assumed you would do any way. MEMBER COLLINS: I think that's why we had you come on, even though we had an appeal that probably most of.us found didn't tell us what you were looking for. We thought you would come and tell us. MATT PACHMAN: Yes. CHAIRMAN: It would be important on who that Building Inspector was, if it was Victor Lessard, we have a major problem because the gentleman is no longer with us. MATT PACHMAN: Mr. Chairman, the person that signed that 1986 letter was Victor Lessard. CHAIRMAN: So, at this particular time, we will take some brief testimony, we will recess the hearing and we'll go from there. MEMBER COLLINS: Mr. Chairman, if the testimony is going to be broadly from people who are, broadly speaking, in opposition, I fear that they're going to testify to why they dislike the project, they think the project is unwise; we've seen written input from the gentleman who spoke before, that he sent to us. I don't think that addresses the issue in front of us. The issue in front of us is whether the existence of a site plan approved in 1983 binds under the reading of the law the Building Department to let them do now, what they want to do now. That's the issue, and frankly, I don't think that these folks without an attorney are in a position to say much about that. CHAIRMAN: We've never restricted anybody from speaking. PAGE 10-SEPTEMBER 20,2001 ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD MEMBER COLLINS: I understand that, I just wanted to get my two cents in. CHAIRMAN: We'd just like to take some brief statements from you and then we're just, going to conclude this for the evening if you don't mind. We'd like you to use the mike if you would sir. The usual question, the proverbial statement that's made is that if you are not available on October 4th, we would certainly like to take a statement from you tonight. But we want you to be available on October 4th, and anything after that. ROBERT YOUNG: I can only speak for myself, but I do believe that all of the parties interested believe there are organizations in the Town of Southold. North Fork Environmental Council is interested in this matter. They have so expressed it. I believe that my letter does not address the issues that were presented tonight. I had no notice about this, the only other notice that I've had is a driveway was cut from the project onto the North Road in March of this year and it was stopped, apparently, by some action from the Building Department. And redo, as I see it, and not speaking further to our meeting with counsel (inaudible). CHAIRMAN: We urge you to bring all interested parties on October 4`h. I hope we get this room on October 4th. We may or may not have it. We may all be crammed into the Town Board Room. ROBERT YOUNG: But then in terms of having a representative address this Board, will we have to have a complete brief and presentation at that time, or will we be able to be .given a period of time address the proactive test. CHAIRMAN: We'll make a determination at that time. I assure you that this Board has never, we're just not in a position to not take testimony from a person or people that are not ready to, and that testimony is not ready to be given. This is still America, and we're waiting for your. ROBERT YOUNG: As a layman in this area of the law, all I can say to the Board is that there has been a tremendous change since the renovation of the plans that were properties on the North Road. It has become a death trap for traffic for cars, for pedestrians or cyclists. We've seen close misses every day of our lives getting in and our of our driveways, it's next to impossible and I hope not only this Board, but the applicant will be able to address that problem and other problems in the course of pursuing their project. I certainly recognize that they've owned the property for this period of time and they should have the right to develop it in a way that is consistent with the community and our laws but, at this point in time, the situation is extremely serious for those of us who live there. The traffic condition has become such that we are creating problems, Foxwood, the ferry and developers are being responsible for, but we're bearing the burdens and we're bearing the risks. We certainly hope that this Board can develop some considerations on whatever issues you address. CHAIRMAN: We will certainly try. Thank you. PAGE 11-SEPTEMBER 20.2001 ZBA PUBUC HEARING TRANSCRIPT TOWN OF SOUTHOLD CHAIRMAN: I'm not positive I can comment on that tonight. MATT PACH MAN: Mr. Chairman, I'm not asking you to do so. I will say, however, it is my understanding. I would ask, Mr. Chairman, if there was any type of submission or memo or anything that the Town Attorney did supply to the Board to discuss this matter. CHAIRMAN: In reality, I explained to you in the beginning that we thought your application was a little deficient, even without counsel, we allowed you to continue with your not only your chronological order which is certainly helpful to understand. We didn't stop you in any way.tonight. MATT PACHMAN: Absolutely,you didn't. CHAIRMAN: We didn't give you the time out sign. We didn't mount any attack towards your presentation. We understand your frustration, we know the applicant very well. I've known Mr. Kontakosta for many years; in fact I've known him since 1976_ Working with 57 attorneys in my present position, there are times when attorneys say certain things, and you abide by those. I don't know what the reasoning was. That's all I can say. MATT PACHMAN: Mr. Chairman. 1 would just say that if for any reason the Board feels that the application is deficient. I would like to know that, because I would like to have an opportunity to amend that to the Board's satisfaction. The Clerk did request I give an explanation for the Interpretation; I did file what I thought was an adequate explanation to be supplemented, of course, by the Public Hearing that's why we're here tonight If there is anything further that the Board needs in terms of the application to alleviate anything about what you mentioned to you we would like to know it, because given that the Board has held this matter over I would certainly like to provide the Board with all the necessary documents and information to form a complete record. CHAIRMAN: Do you want to comment on it, Lora? MEMBER COLLINS: I think that the reason why I am and other Members of the Board felt the application, the application placed before us dated 8/23/01 turning into Appeal #5003, it said the Building Inspector has denied our application for the construction of an unspecified number of two-family dwellings on this lot -- it said that because we know that's what the Building Inspector said -- and it said this is an Appeal but there was no indication in the Appeal you gave it tonight, what you were asking. Tonight you said, you want us to interpret the law and reverse the 8/13 Notice because there exists an old site plan. You mentioned the old site plan in your application but you certainly didn't explain, as you have attempted to do tonight, why the existence of a site plan for a different project, in my view it was a different project, in 1983 was relative to your request. Tonight you have elaborated. at length, and I think therefore from the point of view of feeling the application was inadequate, you filled in the blanks. We certainly haven't gotten to the pros and cons, a key one of which is your assertion that the Building • `__ Inspector's statement to your client in 1986 that the only bar to a Building Permit was PAGE 12-SEPTEMBER 20.2001 ZBA PUBLIC HEARING TRANSCRIPT TOWN OF SOUTHOLD CHAIRMAN: Thank you again. MATT PACHMAN: If I just may make a quick statement to Miss Collins. I just want to point out that you said, that we are asking you to interpret the law and with all due respect, Miss Collins, we're not asking that. We're asking you to use Mr. Forrester's interpretation of the Code as per the colloquy between Mr. Forrester and a Member of the Board. Now you want to make sure that the Board understood that that were what we were asking the Board to do. MEMBER COLLINS: Okay I was working from my notes, listening to you and you said we were asking for an interpretation and a reversal. I think what you wanted to say was you are asking us to reverse his interpretation of the law. MATT PACHMAN: Maybe we are being in semantics, and I don't mean in any way, we were asking for a reversal of Mr. Forrester's determination based upon this Board's interpretation of the Section of the Zoning Code that had been discussed here tonight. I hope that that explains it. If it's not, I will certainly try to explain it further. But that is what we are seeking at this point. CHAIRMAN: Thank you. I just want go down on notice that we are going to set a time of 7:15 p.m. on October 4th. I want to be honest with you; I have a trial that day, so I hope I'm going to be there. I may be late. Mr. Forrester, we thank you. ED FORRESTER: It's a Thursday? CHAIRMAN: October 4th, it's a Thursday. Thank you, I wish you a safe home, because I know you're going as far as these nice gentlemen next to you. I'm just going to entertain this question from this nice lady in the back on my left and we're going to recess the hearing. Yes, ma'am. Could you just come up and use the mike. I'm sorry to put you on the spot but if I get yelled at from this nice lady sitting to my right here. NANCY FOLEY: My name is Nancy Foley My only question now is, exactly how many houses are being built. CHAIRMAN: We really haven't gotten to that, and I'm not trying to be, but this is some of the stuff that we are referring to as fill-ins. MATT PACHMAN: Mr. Chairman, it's pursuant to the site plan that's been in effect since 1983. We're not changing the structures on the site plan in one single respect. So the number is exactly what's shown on the site plan. The amount of dwelling units will be, it's not 108 as mentioned in the letter today, and it's half of that. But the number of structures is the exact number of structures that had been on the site plan since 1983. So it's not an indefinite number, it's the number of structures on that are on there. CHAIRMAN: Thank you. Hearing no further testimony, I make a motion recessing this until 7:15 p.m. on October 41h tS D, 5_4-',pdL �6 q')°') Y � ,m LANNING BOARD MEMBERS(e I��,�o���uFfO(,�-�o BENNETT ORLOWSKI,JR. Aj Town Hall, 53095 State Route 25 Chairman P.O.��1= y� Box 1179 CTI Southold, New York 11971-0959 WILLIAM J.CREMERS 1y ?' KENNETH L.EDWARDS B 1t Telephone (631) 765-1938 GEORGE RITCHIE LATHAM,JR. - O 1� Fax(631) 765-3136 RICHARD CAGGIANO --y-p! 4 +a�°' PLANNING BOARD OFFICE I nI TOWN OF SOUTHOLD 9 q Gaq TO: Gerard P. Goehringer, Chairman, Board of Appeals FROM: Bennett Orlowski, Jr., Chairman RE: KACE Reality, Northwind Village SCTM# 1000-40-3-1 DATE: September 20, 2001 The following is in response to the above matter: The current proposed project for two family homes instead of the 108 condominium units in 27 buildings would constitute a different project than the one that aquired approval by this Board in 1983. A new site plan application and review would be required for this project. This review rl would involve a coordinated SEQRA review,review by the Suffolk County Planning dr Commission, and review by the Suffolk County Department of Health Services in zo addition to a review of the curb cut by the Suffolk County Department of Public Works. We hope this information is helpful to your Board in its review of this application. 1 1 ii 1 + ---EXHIBIT Z ___I . I � . � . . . I I �..I . . I . ., .-1 � � ­ . ..... . . 1. � . . I . I . . . , - . . , I .. . I � � . 1, - I � I 1.,� . 1, I I . I I . . 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