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/ APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Richard C. Wilton BOARD OF APPEALS TOWN OF SOUTHOLD Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1809 FINDINGS AND DETERMINATION With reference to each of the following separately fided applications and appeal file numbers: Appl. No. 4260 - Application for a Variance under Article IX, Section 100-91C(1) of the Southold Town Zoning Code, based upon the July 12, 1994 Notice of Disapproval issued by the Building Inspector for the placement of accesso~r tower structure which is required to be located in a rear yard with a setback as per Section 100-33B(2) at five feet from the property line. Property known and. referred to as the American Armoured T~nlr Museum, 640 Love Lane and the south .side of County Route 48, Mattituck, NY; County Tax Map Parcel No. 1000-140-2-16 located in the Hamlet Business Zone District; and Appl. No. 4261 - Application for a Variance under Article XXIII, Section 100-231A of the Southold Town Zoning Code, based upon the July 12, 1994 Notice of Disapproval for the height of the fence which exceeds the required height limitation. Property known and referred to as the American Armoured Tank Museum, 640 Love Lane and the south side of County Route 48, Mattituck, NY; County Tax Map Parcel No. 1000-140-2-16 located in the Hamlet Business Zone District; and Appl. No. 4262 Application for a Variance under Article IX, Section 100-93 of the Zoning Code based upon the July 12, 1994 Notice of Disapproval for the outside storage or display which is not permitted in · thi.~ Hamlet-Business Zone District. Property known and referred to as the American Armoured Tank Museum, 640 Love Lane and the south side of County Route 48, Mattituck, NY; County Tax Map Parcel No. 1000-140-2-16 located in the I~amlet Business Zone District. WHEREAS, public hearings on each of the above applications were held on January 4, 1995 and February 1, 1995, at which times all who desired to be heard were heard and their testimony recorded; and WHEREAS, the Board has carefully considered all testimony and documentation submitted concerning this application; WHEREAS, Board Members with the premi.~es in question, areas; and have personally viewed and are familiar its present zoning, and the surrounding Page 2 - Appl. Nos. 42~J', 4261, 4262 Property of WILLIAM GASSER Determination Rendered February 1, 1995 WHEREAS, the Board made the following f"mdings 'of fact: 1. BASES OF APPEALS. These are appeal applications based upon a July 12, 1994 Notice of Disapproval issued by the Building Inspector. 2. OWNERSHIP: Town records show the owner of the subject property as WILLIAM F. GASSER, having acquired the subject premises on September 3, 1981 by deed at Liber 9071 page 54. 3. LOCATION AND DESCRIPTION OF PROPERTY: The subject property consists of an area of 32,109 sq. ft. with 50 ft. frontage along the easterly side of Love Lane and 60 ft. frontage along the southerly side of County Highway 48. The parcel is ~L" shaped with 248.50 ft. frontage in an east-west direction along the Long Island Railroad tracks. The property extends northerly 375.72 feet from the Long Island Railroad to the County Highway. The property is eonformino~ as to total lot area, width and depth in thla Hamlet-Business (HB) Zone District. 4. USE OF PROPERTY: The subject property is known to be a non-profit tank museum which existed since the early 1980s. Prior to having been acquired in 1981 by William F. Gasser, the property was used as an C-Light Industrial storage yard related to a nearby commeroi~lly established lumber company located on Sound Avenue, Mattituck. 5. ZONING. In 1981 the lower h~lf of the subject premises was zoned "C-Light Industrial," and the upper haig of the subject promises was mixed "C-Light Industrial" and "Aw Agricultural-Residential. In January 1989, a new master plan was adopted which rezoned the premlaes to Light-Industrial. Subsequently, on May 27, .1992 the applicants applied to the Town Board for a chan~re of zone from Light Industrial and Residential Office to Hamlet Business, and on November 10, 1992, the Town Board granted this change in zoning, with conditions as noted in the Declaration of Covenants flied in the Suffolk County Clerk's Office on November 8, 1993 at Liber 11651 page 134. 6.' CHARACTER OF IMMEDIATE AREA. Abutting this property are the following: (a) to the northwest is a 34,578 sq. ft. parcel owned by Mr. and Mrs. Fl~nk Ammariti since October 8, 1985 as per conveyances at Liber 9899 pages 22 thru 36 {8 deeds). On November 26, 1985, the neighbors applied for and received a Speni~l Exception under File No. 3407 for a 470 sq. ft. catering services of prepared t~ke-out foods" in conjunction with the owner's primar~g single-family residence on the second floor, and separate single-family apartment use on the existing first floor. The property in 1985 was. zoned "C-Light_Industrial_~_and_ prior to the Amn~citi's conversion to catering, it was used as a multiple Page 3 - Apph Nos. 4200, 4261, 4262 Property of WILLIAM GASSER Determin,tion Rendered February 1, 1995 residence for three f~milies. Currently, the zoning designation for the Ammariti's parcel is Hamlet Business. (b) to the extreme north, County Route 48 (formerly known as County Road 27) which is a heavily traveled dual-lane highway. (c) to the east, property identified as 1000-140-2-18, now or formerly of Doreski, partly located in the Light-Industrial Zone and partly Residential-Office. Prior to 1989 thi.~ property was -l~o zoned C-Light Industrial and Agricultural/Residenti-I. (d) to the south, the Long 'Island Railroad tracks. Further south of the LIRR tracks is the business di.~trict which consists of beauty salon, retail sales, b~nk~ng, drinking establishment, and other pereon~l service stores, with nearby municipal parking area~. APPLICABLE ZONING CODE PROVISIONS. 7. ACCESSORY TOWER SETBACKS: Article IX, Section 100-91C(1) reads as follows: (1) Accessory us~ as set forth in and r~gulated by Section 100-31C(1) A. Such buildings shall not ~x~d eighteen (18) feet in height. B. Setbacks. (2) On lots containing more than twenty thousand (20,000) square feet up to thirty-nine-thousand nine-hundred ninety-nine (39,999} square feet, sucR buildings shall be set back no less than five (5) feet fro~ any lot line. {Added 12-22-92} Page 4 - Appl. Nos. 42~, 4261, 4262 Property of WILLIANI GASSER Determination Rendered February 1, 1995 The accessory tower structure is shown on the sketch submitted with the application to be 19 inches short of the set-hack requirement, at an 3.42 ft. (41"} set-hack instead of five (5') feet. It is also noted that the tower structure was reduced in height to less th~n 18 feet as required by the code when it was moved to this particular area - ali resulting from an attempt to comply with the Town Board's conditions under its grant of zone change for this Museum on November 10, 1'992 and pursuant to a Declaration of Coven~,xts filed at IAber 11651 at page 134 on November 8, 1993. The subject tower was moved to thi.~ location, however, without a building permit or set-hack variance. A height variance is no longer necessary based upon the modifications to the tower by the owner-applicant. 8. FENCE HEIGHT: Article XXIII, Section 100-231A (added 1-9-89) requires the height of a fence to be limited to six feet when located in the front yard of nonresidential zones, and when located in or along side and rear yards, the same shall not exceed 6-1/2 feet. The fence height along the northerly (side) line and westerly (side) property line abutting Ammariti existed prior to 1982. At that time, fence heights along side and rear lines were permitted up to eight feet (Section 100-119.1 of the ~former zone cede) and fence heights within five feet of the property and within a front yard area were limited to four feet in height. The height requested by this application is for a total of 6'8" (see applicant's sketch submitted with this application). 9. STORAGE OF MERCHANDISE IN ENCLOSED BUILDINGS: Article IX, Section 100-93 of the current Zoning Code reads as follows: The items which are not presently w~thin an enclosed building are armoured vehicles, display guns on stands and other hi.~torical artifacts related to this type of museum. OPPOSITION/OTHER DISCUSSIONS 10. OPPOSITION RELATIVE TO NORTHWESTERLY LOT. During the hearing, opposition was received from the owners of property along the northwesteriy property line of the subject premises. Memorandums have been furnished listing the areas of concern -- all of which have Page 5 - Appl. Nos. 4200, 4261, 4262 Property of WILLIAM GASSER Determination Rendered February 1, 1995 been fully considered by the Beard Members under this applleation. Some issues raised were: a) a claim by opponent(s) that although the Town was cognizant of the fact that the museum existed for moro than 10 years without proof of enforcement proceedings for its existence as a museum use will, in the opposition's view, preclude the grant of the within variances; b) a claim by opponent(s) that even under the 1992 HB zoning designation by the Town, the property is not the proper place for a non-profit museum without outside storage. c) the Beard at both hearings did request from opponent(s) a list of their own suggestions (similar to what is sometimes roferred to as a "wish list") in which the concerns could be alleviated or be less adverse to their property by way of mitigation, and the opponent(s) chose not to furnish a list of suggestions or requests. d) whether in fact the items which are not within an enclosed building would include motorized vehicles which have generally throughout the township for many years. e) Whether or not the submission of information showing the applicant was operating as a museum from 1981 until 1992 is an issue to be determined at this time, under these applications, particularly since the action being appealed herein was taken by the Building Inspector dated July 12, 1994 and pertaina to three specific aleas: the tower location, fence height, and outside storage of artifacts. f) the specific "yard linen of the front yard as defined by Section 100-13 of the zoning code and a determinmtion of the roquirod height for that yard line and yard area. g) whether or not the change of the zone by the Town Beard in 1992 is directly relevant or a reason to preclude the grant~ng or denial of the variances requested. FINDINGS, INTERPRETATION AND DETERMINATIONS 11. For record purposes, it is noted and further determined that the issues raised pertaining to items 10(b), (b), (e), and (g) herein {listed at page 5) are not properly under the jurisdiction of thia Board in these variance requests as applied. The action by a Town Board to change the ZOning of a parcel, as well as issues of alleged lack of enforcement or compliance, is not an area to be properly decided by this Beard, in a quasi-judicial status. Page 6 - Appl. Nos. 4; , 4261, 4262 Property of WILLIAM GASSER Determination Rendered February 1, 1995 12. INTERPRETATION. In this determination, it is confirmed by this Board that it has been the position of the Town for more than 37 years to permit the parking of movable, motorized vehicles or transportation in open areas. In fact, Articis XXIII, Section 100-236 of the zoning code states that "...No unenciosed storage, except parking of operable passenger vehicles capable of passing inspection or recreation or boats and commercial vehicles as set forth in Section 100-191 sh~l] be permitted in a residential district... (emph~.~is added)? This is not a residential distriet; thi.~ is a business district which permits museums, *open space, **parking lots. Section 100-13 of the Zoning Code, defines these terms: *OPEN SPACE: Any parcel or area of land or water essentially unimproved and set aside, dedicated, designated or reserved for public or private use or enjoyment or for the use and enjoyment of owners and occupants of land adjoining or neighboring such open space, provided that such areas may be improved with only those buildings, structures, streets and off-street parking and other improvements that are designed to be incidental to the natural openness of the hand. **PARKING LOT: An off-street, ground level area, surfaced and improved for the temporary storage of motor vehicles. 13. VARIANCES. Fence height and tower setback relief are area variances {ref. New York Town Law, Section 267(1) amended July 1, 1992}. New York Town Law, as amended, provides that ZBAs consider two basic things: A) the benefit to the applicant if the variance is granted; and B) the detriment to the health, safety, and general welfare of the neighborhood or community that would occur if the variance were to be granted. In balancing the interests above, the Beard Members have considered, and determined, the following five factors for these area variance requests: a) there will not be an undesirable change in the character of the neighborhood or a detriment to nearby properties, as granted for the fence height variation between 2n and 8"; the yard line is defined on Page 10033 of the code to be n...A Line parallel to a street or lot line at a distance therefrom equal to the respective yard dimension required by this chapter." The Bulk, Setback Schedule applicable to the Hamlet Business Zone District (along Love Lane) is for a front yard setback at 15 feet. A fence height limitation with the front yard line area is six Page 7 - Appl. Nos. 4~.o0, 4261, 4262 Property of WILLIAM GASSER Determination Rendered February 1, 1995 feet for nonresidential zone di.~tricts. The fence, height limitation is 6-1/2 feet when located along the side and rear yard areas. The requested height is shown on the applicant's sketch to be 6'8" enclosing the entire premises, and the variance required is for two inehes (2~) along the side and rear lines, and eight inches (8") for the front yard line. The fence is used for screening, privacy and security purposes. b) there will not be an undesirable change in the character of the neighborhood or a detriment to nearby properties, if granted for the tower setback; the location of the tower is at the furthest distance from the opponent's property, and is located very close to the violnlty of the rear yard of the easterly adjoining parcel; the location is also the general area requested at 100 feet or more from Love Lane as stipulated by the Town Board in its 1992 Declaration of Covenants and Restrictions; c) the benefit sought by the applicant can be otherwise achieved with the placement of a fence at 6 feet in height within the front yard lines, and at 6-1/2 ft. along the side and rear property lines. d) the benefit sought by the applicant to locate the tower at the location shown is outweighed against any benefit claimed by the abutting property owner in its present location, as compared to another location of the tower. (It should be noted that no claim has boon made for an alternative location by the abutting property owners for their beneff t ). e) the area variances for both the fence height and tower setback are not substantial or unreasonable - particularly in light of the fact that the property is uniquely shaped with an L-shaped configuration, narrow width, limited buildable area, building location, and other preexisting nonconformities, as a commercial storage yard with parking of commercial trucks and other vehicles in open yard areas; it is not uncommon for fences to be placed at six feet in height, or more, when accessory to open storage yards for screening from view and for security purposes. f) the area variances will not have an adverse effect or impact on the physical or environmental conditions in the neighborhood or business district (see environmental reviews and declarations adopted in 1992 by the Town Board and Negative Declaration adopted by thi.~ Board on November 2, 1994}; abutting the subject promises to the south are the Long Island l~iiooad tracks; to the north is a parcel of land occupied as a take-out catering service which is nonconforming in the HB Zone District; g) the relief granted is the minimum necessary with variations between 2 and 8 inches as to fence height, and as to 19 inches for the to~ver setback reduction; at the same time the relief as conditionally granted will preserve and protect the character of the neighborhood and Pag~ 8 - Appl. Nos. 42~ , 4261, 4262 Property of WILLIAIVl GASSER Determination Rendered February 1, 1995 the health, safety and welfare of the community; the fence at six feet in height is properly secured and is not damaged, deteriorated, and is not a menace to the public. The applicant-owner has agreed to add slats within the links of the fence and to provide additional screening as would be agreeable to the northerly abutting property owner. NOW, THEREFORE, on motion by Chairman Goehringer, seconded by Member Dinizio, it was RESOLVED, to DENY the relief as requested for the fence height above six feet along the front yard line, and above 6-1/2 feet along the side and rear property lines for thi.~ nonresidential use; BE IT FURTHER RESOLVED, to INTERPRET the activity for parking of movable vehicles to include tank.~ and similar devices which may be used for tran-~portation as a permitted use under Section 100-93 of the Zoning Code, with the understanding that these vehicles shall be placed within the so~/thern most 14-feet of the applicant's property, and merchandise and items which are not defined as movable vehicles shall be stored as clearly worded under Section 100-93 within an enclosed building; BE IT FURTHER RESOLVED, to DENY the variance requested for outside storage of merchandise, other than motorized vehicles, since there is an alternative to store these items within an enclosed building; BE IT FURTHER RESOLVED, to GRANT the variance requested for a 19" reduction in the setback for the accessory tower structure, as applied, and BE IT FURTHER RESOLVED, that the following conditions shall be complied with: a) Only that area 14 feet along the southerly property line (185' length) shall be used for parking of motorized vehicles in order that the remaining 36 feet remain open and unobstructed for on-site movement when necessary of vehicles, egress, ingress, landscaping, parking for guests and employees recommended along the northerly property lien and other accessibility necessary in the event of a fire or other emergency. b) When the museum is closed, the northerly most 35 feet of the property (ad,cent to Love Lane) shall remain open and unobstructed, except for employees/VOlUnteers' vehicles; c) Tall plantings or trees shall be placed and continuously maintained by the applicants along or near the join[ Gasser/Ammaratti property line which runs in an east-west direction. If permission to place additional plantings is refused or prevented by the abutting property owners to the north (Ammariti), then confirmation shall be Page 9 -Appl. Nos. 4260, 4261, 4262 Property of WILLIAM GASSER Determln~tion Rendered February 1, 1995 placed in writing with proof to be furnished to the Town. It is recommended for the benefit of aH that some agreement be reached between the parties with reference to plantings on either or both parcels. d) Border fenaing shall be slatted six feet north of the road line when it is presently unslatted; all fencing and slatted areas shall be ra~intalned in good cofidition and repaired by the applicants. e) In six months from the date of the filing of this decision, the applicants-owners herein shall either remove all merchandise and artifacts which are not within a building. Alternatively, the applicants herein may apply to the Building Department within the next six month.~ for an addition or new building area for these purposes. In any event, failure by the applicants to file a building permit application in a timely faskion shall not prevent the Tow~ f~om an enforcement preceedlng by the Town Attorney's Office or the Southold Town Building Department. f) this determln~tion shah not preclude application by the owners or an aggrieved party for different relief as may be required by the Building Inspector and filed in accordance with the requirements of New York Town Law, Section 267 (such as an addition to the ex/sting bufldlng, or new bufldlng for inside storage and display of merchandise and other artifacts). Vote of the Board: Ayes: Messrs. Doyen, Wilton and Goehringer. Nays: Mr. VH!~ (felt the relief requested not suitable to this particular location and due to the size of the parcel) and Mr. Dinizio (chose to withhold his reasons). This resolution was duly adopted 3-2. GERARD P. GOEHRINGER CHAIRMAN APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Serge Doyen, Jr. .lames Dinizio, Jr. Robert A. Villa Richard C. Wilton BOARD OF APPEALS TOWN OF SOUTHOLD Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1809 NOTICE OF PUBLIC HEARINGS NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, that the following public hearings will be held by the SOUTHOLD TOWN BOARD OF APPEALS at the Southold Town Hall, 53095 M~in Road, Southold, New York 11971, on WEDNESDAY, JANUARY 4, 1995~ commencing at the times specified below: 1. 7:30 p.m. Appl. No. 4288 - JACK AND CHRIS GISMONDI. Request for a Variance under Article III, Section 100-30A(1) for approval of the location of an accessory swimmingpool, above ground as built, in a yard area other th~n. the required rear yard, at premises known as 5655 Indi~u Neck Road, Peconic, NY; County Tax Map Parcel No. 1000-86-6-14. (Setback from property lines, when located in a yard area other than a rear yard, shall be determined by the Board of Appeals. ) 2. 7:40 p.m. Appl. No. 4289 - WILLIAM AND VERA SMITH. Request for a Variance under Article IIIA, Section 100-30A.3 based upon the October 28, 1994 Notice of Disapproval issued by the Building Inspector, for permission to construct addition to existing building which will have an insufficient front yard setback. Page 2 - Legal Notice Southold Town Beard of Appeals Public Hearings for January 4, 1995 Location of Property: 980 Bayview Avenue, Mattituck, NY; County Tax Map Parcel No. 1000-106-10-17.. 3. 7:40 p.m. Appl. No. 4290 - WAREX TERMINALS CORP. Request for a Variance under Article X, Section 100-101C, ref. 100-33, for permi.~sion to locate a canopy structure over existing gasoline pumps in an area other th~n the rear yard. Location of Property: 9945 Main Road, Mattituck, NY; County Tax Map Parcel No. 1000-142-1-27. 4. 7:45 p.m. Appl. No. 4287 NORTH FORK BEACH CONDOMINIUMS. (Carryover from December 7, 1994). Request to install swiraming-pool at 52325 C.R. 48, Southold, NY; 1000-135.1-1-43. 5. 7:50 p.m. Appl. No. 4286 - JOEL AND MARGARET LAUBER (COREY CREEK VINEYARDS). {Carryover from December 7, 1994}. Request for Special Exception to establish Winery Use for the sale of wine produced from .grapes grown on the existing Vineyard where the proposed Winery is to be located. Location of Property: Consisting of a minimum of ten 45470 Main Road, Southold, NY; and 9.6. (10) acres of land referred to as County Tax Map No. 1000-75-6-9.7 Page 3 - Legal Notice Southold Town Board of Appeals Public Hearings for January 4, 1995 6. 8:00 p.m. Appl. No. 4293 - EDWARD J. MUNSON. Request for Variance under Article IIIA, Section 100-30A.3 based upon the December 7, 1994 Notice of Disapproval issued by the Building Inspector for permi-~sion to construct addition to dwelling which will have an insufficient sideyard setback at less than the required 15 feet, and total side yards at less than the required 25 feet. Location of Property: County Tax Map Parcel No. of land area. 1545 Osklnwn Avenue, Southold, NY; 1000-70-3-5. Containing 10,400 sq. ft. 7. 8:05 p.m. Appl. No. 4292 - JAY AND MARY THOMSON. Request for a Variance under Article IliA, Section 100-30A.3 based upon the November 30, 1994 Notice of Disapproval issued by the Building Inspector for permission to construct addition to existing dwelling which will exceed the maximum lot coverage limitations. Location of Property: 695 Bayshore Road, Greenport, NY; County Tax Map Parcel No. 1000-53-6-14. 8. 8:10 p.m. Appl. No. 4291. JAMES M. and ELAINE O'KEEFE Request for a Special Exception under Article IIIA, Section I00-30B to establish Bed and Breakfast use as an accessory incidental to the applicant's single-family residence and ownership of dwelling located at 54300 C.R. 48, Southold, NY; County Tax Map Parcel No. 1000-52-3-1. Zone District: R-40 Low-Density Residential. Page 4 - Leffal Notice Southold Town Board of Appeals Public Hearings for January 4, 1995 9-11. 8:15 p.m. Application for Variances requested by WILLIAM F. GASSER concerning l~s property known and referred to as the American Armoured Tank Museum, 640 Love Lane and the south side of County Route 48, Mattituck, NY; County Tax Map Parcel No. 1000-140-2-16 located in the Hamlet Business Zone District, which requests are noted as follows: (9) Appl. No. 4260 - Request for Variance under Article IX, Section 100-91C(1) based upon the July 12, 1994 Notice of Disapproval issued by the Building Inspector for the placement of accessory tower structure which is required to be located in a rear yard with a setback as per Section 100-33B(2) at five feet from the property line; (10) Appl. No. 4261 Request for Variance under Article XXIII, Section 100-231A based upon the July 12, 1994 Notice of Disapproval for the height of the fence which exceeds the required height limitation; (11) Appl. No. 4262 - Request for Variance under Article IX, Section 100-93 based upon the July 12, 1994 Notice of Disapproval for the outside storage or display which is not permitted in this Hamlet-Business Zone District. Page 3 - Legal Notice Southold Town Board of Appeals Public Hearings for January 4, 1995 6. 8:00 p.m. Appl. No. 4293 - EDWARD J. MUNSON. Request for Variance under Article IIIA, Section 100-30A.3 based upon the December 7, 1994 Notice of Disapproval issued by the Building Inspector for permission to construct addition to dwelling which will have an insufficient sideyard setback at less than the required 15 feet, and total side yards at less than the required 25 feet. Location of Property: 1545 Oaklawn Avenue, Southold, NY; County Tax Map Parcel No. 1000-70-3-5. Containing 10,400 sq. ft. of land area. 7. 8:05 p.m. Appl. No. 4292 - JAY AND MARY THOMSON. Request for a Variance under Article IIIA, Section 100-30A.3 based upon the November 30, 1994 Notice of Disapproval issued by the Building Inspector for permission to construct addition to existing dwelling which will exceed the maximum lot coverage limitations. Location of Property: 695 Bayshore Road, Greenport, NY; County Tax Map Parcel No. 1000-53-6-14. 8. 8:10 p.m. Appl. No. 4291. JAMES M. and ELAINE O'KEEFE Request for a Special Exception under Article IIIA, Section 100-30B to establish Bed and Breakfast use as an accessory incidental to the applicant's single-family residence and ownership of dwelling located at 54300 C.R. 48, Southold, NY; County Tax Map Parcel No. 1000-52-3-1. Zone District: R-40 Low-Density Residential. TOWN OF SOUTIIOLD BUILDING DEPARTMENT TOWN CLERK'S OFFICE SOUTtIOLD, N.Y. NOTICE OF DISAPPROVAL Date.. .JIJLY 12, 94 WILLLm~ F .C~. ,SSER 2383 5th AVE. RONKONKOMA, ~ 11779 PLEASE TAKE NOTICE that your application dated ~. ]~ .... . .... ............... 19 94 forpe~it to E~CT A TO~R, A ~NCE 7' IN ~I~T, OUTSIDE ~TO~ Location of Property 640 LO~ ~ ~IWCK House No. ' .............. · ............ Streef ......... ' · · County Tax Map No. 1000 Section 140 Block 02 16 Subdivision ................. Filed Map No ................. Lot No .................. is returned herewith and disapproved on the following grounds 1. ~E ACCESSORY TOUR DOES .. NOT.~O~O~ TO 'r~ ~ '& SIDE Y~ SET BACK ~QgI~S AS SET FOR~ IN B~I~E IX 100-91 C(I). '" ~I~T OF A ~NCE IN AN BB DIS~ICT, ~TI~E ~III 100-231 A. E DIS I N ~ ~ ~ .................... .......................... ~,~t~o t~ -ra~ ~B DISTRICT ARTICLE IX 100-93. ' .......................... //~ilding .~nspccto~: RV 1/80 FORM NO. 1 TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN HALL SOUTHOLD, N.Y. 11971 TEL.: 765-18013 Exami d " 19 Approved ................. 19... Permit No ............ Disapproved a/c ..................................... ~ARD OF HEALTII ......... SETS OF PLAHS .......... SURVEY ................... CIIECK .................... SEPTIC FORtl .............. CALL ................... HAIL TO: (Building Inspector) APPLICATION FOR BUILDING PERMIT Date ......... , INSTRUCTIONS a. This application must be completely filled in by typewriter or in ink and submitted to the Building Inspector, with 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 must be drawn on the diagram which is part of this appli- cation. 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 issued a Building Permit to the applicant. Such permit shall be kept on the premises available for inspection throughout the work. e. No building shall be occupied or used in whole or in part for any purpose whatever until a Certificate of Occupancy shall have been granted by the Building Inspector. APPLICATION IS HEREBY MADE to the Building Department for the issuance of a Building Permit pursuant to the Building Zone Ordinance of the Town of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations, for the construction of buildings, additions or alterations, or for removal or demolition, as herein described. The applicant agrees to comply with all applicable laws, ordinances, building code, housing code, and regulations, and to admit authorized inspectors on premises and in building for neae~s~y ~ec~i~-~/ ~'~ ~,~ · ....... /(Signature of applicant, o~r~narpe., i~'~ corporation) (Mailing address of applicant) State whether applicant is owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or builder. Name of owner of premises ...', - . .... (as on the tax roll or latest deed) If applicant is a corporation, signature of duly authorized officer. (Name and title of corporate officer) Builder's License No ....... .~./.~t. ............. · Plumber's License No ................... PY- E ectrtclan s License No ....................... Other Trade's License No ...................... I. Location of land on which proposed work will be done. /'t~OO -/c/O -- ~ -' / ~ House Number Street Hamlet County Tax Map No. 1000 Section · ............. ... .. Block .... .............. Lot.. ' . Subdivision .................................. Filed Map No ............ Lot ........ (Name) 2. State existing use and occupancy of premises and intended use and occupancy of proposed construction: a. Existing use and occupancy ~.~.~.~ .... ~J~E.~'~.¢~ ~.~~.~.'.~,.~/~ E~ Re.~OIZ, Rem-o.0 ........ uu..~. .......... AdI .......... - Alteration Demolition Other Work ......... · (Description) '4 Estimated Cost 5 If d (to be paid on filing this application} · welling, number of dwelling units ............... Number of dwelling units on eac oor.. · If garage, number of cars ................ h fl .............. 6 lfb ' ' ' · . · Di usiness, commercial or mixed occupancy, specify nature and extent of each type of use .............. · ex if · ' · 7. mensions ot istingstmct any: Front ............... Rear .............. Depth ........ ~).eight ............... Number of Stories ..................... ' ' · · · · · f ith It additi ....................... ' ...... Unensions o same structure w aerations or ons: Front ' ' ..... Depth ................. Rear ......... Height Number of Stories ', · Dinmnsions of entire new construction: Front ............. · Height Rear Depth ............... Num bet of Stories ...................... . Size of lot: Front ...................... Rear .................. D~pth ..... ~)~; °/rPu~7~s~;ic; i~ 'x;l:/ch~'°°', ................... Name 9,f Fo ~nne~r Ow. qer .~. ~O.r.q.~, l 1. premises are situated ......... ./'J~,Ot/.C'Y.. dJ.0.$ { ~'1~./.~..: .................... 12. D°es pr°p°sed c°nstruction violate any zoning law, ordinance or regulation: ................................ 14. r;~i;;s' '~,:~'~'e~,.~ ...... Will ex~,5~t~ern~ve,d from premises: Yes ...... ;:/;, .... ' ......... Address ..... ~../t~ 1~.~./~ Phone No ?.~f79'7.9'//.. 2ame o[~Arcnltect ........ :,,~/.~. ......... ......Address ........... '",~ ., ' .... '" ~'~ame o! Uontractor .. ~././~ . . ~ · ....... rnone ~'~o ............. 15. Is this property within 300 feet: of a tidal wetland? ~¥'~'~ ......... [?honvc No ................ ~If yes, Southold Town Trustees Permit may be required. .... PLOT DIAGRAM Locate clearly and distinctly all buildings, whether existing or proposed, and. indicate all set-hack 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. :TATE OF NEW YORK, ?OUNTy OF .............. S.S (Name of individual signing contract) named. being duly sworn, deposes and says that he is the applicant e is the .......................................... (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 -plication; that all statements contained in this application are true to the best of his 'knowledge and belief; and that the ;rk will be performed in the manner set forth in the application filed therewith· ;om to before me this . -~/ , rtOTAa't PUeL~;C, s~a:o ol Haw Yo(k ....... t~o. 4~43~9- Su(l:l~ County . - ............. Commission Expiies Hov. ?, i9 ~y (Signature of applicant) RECEIVED 1994. TOWN OF SOUTHOLD, NEW yojeoJthold Town Clerk APP~,.\L FROM DECISION OF BUILDING INSPECTOR APPEAL NO. DATE ....... TO THE ZONING BOARD OF APPEALS, TOWN OF SOUTHOLD, N. Y. (we) American Armoured Foundatio.Qof . . . 2383 ,F...i..f. tb....~.y.~ ..................... Name of Appellant Street arid Number .......................... ~Ql0.1~QD. kDma ........................................... Nc'xc.-'Y'o~;k, .......... HEREBY APPEAL TO Municipality State THE ZONING 8aARP OF APPEALS FROM THE DECISION OF THE BUILDING INSPECTOR ON APPLICATION FOR PERMIT NO ..................................... DATED ...................................................... WHEREBY THE BUILDING INSPECTOR DENIED TO ( ) ( ) ( ) American Armoured Foundation Nome of Applicant for permit of New York ..~3~3 ....... ~.i. ~%.h.-~%v~n~e ........... :-.R~nk~,~k"om~ ............ ._. ............................. Street and Number Municipauty 5tote PERMIT TO USE PERMIT FOP, OCCUPANCY 1. LOCATION OF THE PROPERTY ..~D.~.e..3~a.n~ ......... I,J~l:~,A.~.u~k .............. ~I.B ........................... Street /Hamlet / Use District on Zoning Mop lock 2L0t 16. t District 1000 Section 14~ ................. uurren Owner William F. Gasser Map No. iLar No. Prior Owner George Penny Sr. 2. PROVISION (S) OF THE ZONING ORDINANCE APPEALED (Indicate the Article Section, Sub- section and Paragraph of the Zoning Ordinance by number. Do not quote the Ordinance.) Article '~ )4 Section /O0 3. TYPE OF APPEAL Appeal is mode herewith for (please check appropriate box) ( v~ A VARIANCE to the Zoning Ordimance or Zoning Map ( ) A VARIANCE due to luck of access (State of New York Town Low Chap. 62 Cons. L~Ws Art. 16 Sec. 280A Subsection 3 () 4. PREVIOUS APPEAL A'previous appeal (h~)/(hos not) been made with respect to this decision 0~ the Building Inspector or with respect to this property. Such appeal was ( ) request for a special permit { ) request for o variance ~nd was made in Appee) No.../'L.~-.---'~'--2- ................ Dated .A;.L~L.L.[. ....... ,..., .................. ; ..................... REASON FOR APPEAL { ) A Variance to Section 2BOA Subsection 3 {~J/ A Variance to the Zoning Ordinance ( ) is requested {or the reason that ~orm ZBI (Continue on other side) REASON FOR APPEAL Continued sat,/ HARDSHIP because STRICT APPLICATION OF THE ORDINANCE would produce practical difficulties or unneces- vicinity of this property and in this use district because The hardship created is UNIQUE and is not shared by all properties alike in the immediate }q 3. The Variance would observe the spirit of the Ordinance and WOULD NOT CHANGE THE CHARACTER OF THE DI:~IKICT because STATE OF NEW YORK ) ). COUNTY OF ~Sh~/~e~ZK ) Ss Signature Sworn to this ......... ~ ................. 'JA::~r G Notary Public / '"" TOWN OF SOUTHOLD PROPERTW'I~E-CORD CARD ~, /oo-o OWNER STREET ,~ ,-~L~j VILLAGE DIST.I SUB. LOT FORMER OWNER N ' S W TYPE OF BUILDING ~ES. ~:~ S~SP' !VL. FARM 'CO~. CB. MICS. Mkt. W°~bnd FRONTAGE ON ROAD Meadowbnd DEPTH ~ f/~ e*/ / ~ , ... House Pl~t BULKH~D ' //~ Total I FOURTH ~ISION SUFFOLK COUNTY AMERICAN LEGION P.O. BOX 50 CUTCHOGUE, NY 11935 ALFRED GREBE POST NO. 1045, FISHERS ISLAND BURTON POI-FER POST NO. 185, GRE£NPORT GRISWOLD TERRY GLOVER POST NO. 803, SOUTHHOLD MITCHELL POST NO. 281, SHELTEP.. ISLAND RAYMOND CLEAVES POST NO. 861 , MATEITUCK · RIVEP. H£AD POST NO. 273, RIVERHEAD November 6, 1995 Mr. Gerard P. Goehringer Chairman, Zoning Board of Appeals The American Legion, Fourth Division Suffolk County, is concerned that we may lose the American Armored Foundation in Mattituck. As veterans, we are particularly interested in keeping the Foundation in Mattituck. Our country needs to remember the cost of freedom. The museum graphically displays the various conflicts and the weapons required to keep us free. We would appreciate anything you could do to keep The American Armored Foundation in Mattituck. Yours Truly, Fred Gromadzki, Adjutant ~//~ %9~/r43 U p REME COURT THE STATE OF NEW YORK:COUNTY OF SUFFOLK Plaintiff desigantes Suffolk County as the place of trial Frank Ammirati and Diane Ammirati, Plaintiff, VS. Town of Southold and William Gasser d/b/a American Armoured Foundation, Inc., Defendant To tile above nnmed Defendant INDEX # qC- '2'~' 7,~-') The basis of the venue is Plaimiff resides in Suffolk County SUMMONS Plaintiff resides at 730 Love Lane, Mattituck,NY F/LED EDW'4'RD P. RCf,,/AJNE C ~LERK OF SUFFOLK, COUN'~ YOU ARE ItEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this. summons, to serve a notice of appearance, on the Plaintiff's Attorney within 20 days after the service of this summons, exclusive of'the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of NewYork); and in case of your failure to appear or answer, judgment will be taken against you by default tbr the relief demanded in the complaint. Dated: Gree,port, NY September 19, 1995 ONGIONI & BORRELLI Attorney for Plaintiff 403 Front St-PO Box 562 Greenport, NY 11944 516-477-2048 Det'endant's Address: Southold Town-Town Hall Main Road 5;outhold,NY 11971 \Villiam Gasser ~\merican Armoured Foundation, Inc. Love Lane Mattituck,NY 11952 cc: Town Board Town Attorney Chief of Police Stype Agency Wm. F. Mullen, SUPREME COURT OF THE STATE OF NEW YORK: COUNTY OF SUFFOLK FRANK AMMIRATI and DIANE AMMIRATI,, Plaintiff, YS. TOWN OF SOUTHOLD and WILLIAM GASSER d/b/a/AMERICAN ARMOURED FOUNDATION, INC.,, Defendant Index# VERIFIED COMPLAINT Plaintiffs through their attorneys, ONGIONI & BORKELLI, complaining of the defendants, states upon information and belief as follows: AS AND FOR A FIRST CAUSE OF ACTION TO ENJOIN VIOLATION OF A ZONING ORDINANCE AND DE,CISION OF TIlE ZONING BOARD OF APPEALS I. That plaintiffs at all times herein mentioned were and are residents of the Town of Southold, County of Suffolk, State of New York and are the owners in fee simple of premises known as 730 Love Lane, Mattituck, New York bearing Suffolk County Tax Map No. 1000- 140-2-18 2. That defendant, Town of Southold, at all times herein mentioned was and is a domestic municipal corporation. 3. That defendant, William Gasser, at all times herein mentioned was and is the owner of premises located at Love Lane, Mattituck, New York beanng Suffolk County Tax Map No. 1000-140-2-16. 4. That the American Armoured Foundation, Inc., is a domestic corporation, organized and existing under the laws of the State of New York 5. That William Gasser at all times herein mentioned was and is the sole shareholder and a director of the ,~nerican Armoured Foundation, Inc. 6. That defendant, William Gasser d/b/a American Armoured Foundation, Inc. at all times herein mentioned is the owner and operator of a museum for, among other things, armoured vehicles at the aforesaid location in Mattituck, New York. 7. That the aforesaid properties are designated Hamlet Business by the Zoning Code of the Town of Southold and are subject to the zoning code of the Town of Southold for said district.. 8. That the aforesaid zoning code requires under Article Section IX 100-93 that all museums maintain the storage of museum exhibits within the confines of a building. 9. That on or about February 8, 1995, the Zoning Board of Appeals of the Town of Southold under the authority delegated to it by the Town of Southold, rendered a decision with regard to three applications by defendant, William Gasser d/b/a American Armoured Foundation, Inc. for variances bearing numbers 4260, 4261, 4262. 10. That the application beating number 4262 was for a variance from the requirements of Article IX Section 10-93 requiring the inside storage of the museums exhibits. 11. That the decision of the Zoning Board of Appeals as attached hereto as Exhibit 1 required the defendant, William Gasser d]'o/a American Armoured Foundation, Inc. to limit the outside exhibition of its artifacts to an area 14' x 185' along the southerly side of the property along the railroad tracks. 12. That the time within which defendant William Gasser d/b/a American Armoured Foundation, Inc. was to comply with the aforesaid Zoning Board of Appeals decision has passed and defendant, William Gasser d/b/a American Armoured Foundation, Inc. has not complied. 13. That the defendant, William Gasser d/b/a American Armoured Foundation, Inc. is not entitled to continue the outside storage of motorized armored vehicles except within the area specified by the Zoning Board of Appeals and such outside store is in violation of the laws of the Town of Southold. 14. That the defendant, Town of Southold, has failed to enforce the decision of the Zoning Board of Appeals although duly demanded and requested to do so. 15. That by reason of the aforesaid illegal use of said property by the defendant William Gasser, d/b/a .american Arrnoured Foundation, Inc. the salability and rentability of plaintiffs -2- property and the operation of plaintiffs business are and will continue to be greatly diminished and these plaintiffs will suffer great damage to the value of their property and business to the extent of many thousands of dollars by reason of the aforesaid illegal operations for which these plaintiffs have no adequate remedy at law and the desirability of the district for hamlet business as zoned will be destroyed. AS AND FOR A SECOND CAUSE OF ACTION FOR A PUBLIC AND PRIVATE NUISANCE 16. Plaintiffs repeat and reiterate each and every allegation contained in paragraphs numbered 1 through 14 of the First Cause of Action as though more fully set forth at length herein. 17. That commencing in or about August 8, 1995 defendant, William Gasser d/b/a American Armoured Foundation, Inc. has maintained and operated a museum for armored vehicles among other things in violation of the laws of the Town of Southold on premises adjacent to that owned and operated by plaintiffs and the defendant, Town of Southold has failed to enjoin such illegal use; that said illegal use has caused persons to trespass upon plaintiffs property to view the armored vehicles, among other things, through the open fencihg; that said illegal use has caused persons to enter into and upon plaintiffs property to park their vehicles before entering the museum; that the armored vehicles are moved about the premises causing smoke, noise, noxious vapors, and trembling which are visible and noticeable by plaintiffs and those members of the public who enter plaintiffs business premises causing fear, annoyance, distress and anxiety to plaintiffs and others; that the aforesaid smoke, noise, noxious vapors and trembling are offensive and sickening and destructive to the health and comfort of persons in close proximity to said museum including plaintiffs and members of the public who come to plaintiffs' business. 18. Plaintiffs further allege that heretofore they have duly presented their complaints upon which this action is founded to the Town of Southold, its agents, servants and/or employees and said defendant has neglected or refused to enjoin the defendant, William F. Gasser d/b/a the .'kmerican .~rnoured Foundation, Inc. from continuing such illegal and improper operation. 19. That since the illegal operation of the aforesaid premises has been going on, the said museum has constituted and is a nuisance, injurious to the comfort and enjoyment of plaintiff in -3- their residence and occupation by themselves and through the customers of there business and tenants of plaintiffs premises. 20. On information and belief, that defendants intentionally and negligently and carelessly failed to abate the said nuisance and unsafe and illegal condition in violation of their duty to the public and plaintiffs. 21. Said illegal use is a public nuisance and prevents and materially impairs the enjoyment of the surrounding area by the public. 22. Said violation of the zoning code's mandates as varied by the Zoning Board of Appeals seriously injures plaintiffs said property, and obstructs the view of and from plaintiffs property and interferes with plaintiffs easements of light, air and access appurtenant to their property. 23. That by reason of the foregoing facts and the maintenance of such nuisance by the defendants the rental value of plaintiffs premises above described have been depreciated and the value of plaintiffs business has diminished and the income derived from such business has diminished; and the plaintiffs have suffered damag~ in the sum of SEVEN HLrNDRED FEFTY THOUSAND AND 00/100 ($750,000.00) DOLLARS. WHEREFORE, the plaintiffs demand judgment as follows: 1. On the first cause of action: a) Enjoining and restraining defendant, William Gasser clgo/a American Armoured Foundation, Inc. and the American Armoured Foundation, Inc. from operating a museum with outside storage of vehicles other than within the 14' x 185' area designated by the Zoning Board of Appeals on said property which operation violates the zoning ordinance of the Town of Southold and the variance from said ordinance ganted by the Zoning Board of Appeals; and b) Compelling the defendant, Town of Southold, its officers and employees to enjoin the aforesaid illegal operation by defendant, William Gasser dgo/a American Armoured Foundation, Inc. c) compelling the defendant, William Gasser dgo/a American Armoured Foundation, and the American Armoured Found to remove from said premises any armored vehicles or other motorized or machine not within the 14' x 185' area designated by the Zoning Board Authority decision of February 8, 1995. 2. On the Second Cause of Action granting plaintiffs judgment against the defendants in the sum of Seven Hundred Fife/Thousand Dollars ($750,000.00) together with the costs and disbursements of this action. 3. and for such other, further and different relief as to the court may seem just and proper. Dated: September 18, t995 Cn-eenport, New York ONGIONI & BORRELLI, ESQS. Attorneys for Plaintiffs 403 Front St-PO Box 562 Crreenpott,NY 11944 516-477-2048 ammirati:complnt.nui -5- ?~ATE OF NEW YORK r:OUNTY OF SUFFOLK FRANK AMMIRATI, being of perjury that he is the i!oregoing Verified Complaint those stated to be alleged l~hose matters he believes it VERIFICATION duly sworn, states under the penalties Plaintiff in this action and that the is true to his own knowledge except on information and belief and as to to be true; ~;worn to before me this day ~f SEwT~BER, ]~995 CARME}..A L 6ORRELU Nomr~ Public. State of New York No. 4526699 Qualified In Suffolk County Commission Ex~ims Janua~f 31.19~ K' AMMIKAT t In the Matter of Gary T. Doyle, Appellant, vs. Arnold Amster et al., Constituting the Clarkstown Zoning Board of Appeals, Respondents. No. 122 COURT OF APPEALS OF NEW YORK 594 N.E.2d 911, 79 N.Y.2d 592 June 4, 1992, Decided Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (the appeal having been transferred to that Appellate Division by order of the Appellate Division of the Supreme Court in the Second Judicial Department), entered October 24, 1991, which affirmed a judgment of the Supreme Court (John Carey, J.), entered in Rockland County in a proceeding pursuant to CPLR article 78, dismissing an application by petitioner to review a determination of the Town of Clarkstown Zoning Board of Appeals that denied petitioner's request for area variances. COUNSEL Stephen J. Cole-Hatchard for appellant. POINT oF COUNSEL I. The refusal of respondent Zoning Board to grant the requested area variances, as affirmed by the Supreme Court and Appellate Division, Third Department, is contrary to prior holdings and decisions of the Court of Appeals. (Matter of Hoffman v Harris, 17 N.Y.2d 138; Matter of Clune v Walker, 10 Misc. 2d 858, 7 A.D.2d 651; Matter of Fuhst v Foley, 45 N.Y.2d 441; Matter of De Sena v Board of Zoning Appeals, 45 N.Y.2d 105; Matter of Field Delivery Serv. [Roberts], 66 N.Y.2d 516; Matter of Howard Johnson Co. v State Tax Commn., 65 N.Y.2d 726.) II. Pursuant to Second Department case law, as interpreting applicable Court of Appeals decisions, the Third Department's affirmance of the denial of the requested area variances is an abuse of discretion as a matter of law. (Matter of Stengel v Town of Woodstock Zoning Bd. of Appeals, 155 A.D.2d 854; Matter of Johansen v Ochsie, 158 A.D.2d 886; Matter of Clune v Walker, 10 Misc. 2d 858, 7 A.D.2d 651; Matter of Gruen v Simpson, 3 A.D.2d 841; Van Dusen v Barrack, 376 US 612.) III. A practical difficulty exists as a matter of law pursuant to Appellate Division, Second Department, case law, as interpreting Court of Appeals decisions. (Matter of Clune v Walker, 10 Misc. 2d 858, (c) 1994 By The Michie Company, A Division of The Mead Corporation 7 A.D.2d 651; Matter of Gruen v Simpson, 3 A.D.2d 841; Matter of Stengel v Town of Woodstock Zoning Bd. of Appeals, 155 A.D.Zd 854; Matter of Johansen v Ochsie, 158 A.D.2d 886; Matter of Hoffman v Harris, 17 N.Y.2d 138.) IV. The existence of a significant economic injury has been shown as a matter of law, contrary to the decision of the Appellate Division, Third Department. (Matter of Fulling v Palumbo, 21 N.Y.2d 30; Matter of Townwide Props. v Zoning Bd. of Appeals, 143 A.D.2d 757; Young v Board of Zoning Appeals, 62 Misc. 2d 147, 35 A.D.2d 430, 29 N.Y.2d 685.) V. Strict enforcement of the zoning code herein will not serve any valid public purpose outweighing the severe injury to appellant, and as such, the affirmance of the lower court's dismissal of the petition was an abuse of discretion and must be reversed. (Matter of De Sena v Board of Zoning Appeals, 45 N.Y.2d 105.) COUNSEL Murray N. Jacobson, Town Attorney (Ronald E. De Christoforo of counsel), for respondents. POINT OF COUNSEL The resolution of the Zoning Board of Appeals was supported by substantial evidence and was not arbitrary, capricious or illegal. (Conle¥ v Town of Brookhaven Zoning Bd. Appeals, 40 N.Y.2d 309; Matter of Cowan v Kern, 41 N.Y.2d 591; McGowan v Cohalan, 41 N.Y.2d 434; Matter of Wilcox v Zoning Bd. of Appeals, 17 N.Y.2d 249; Van Deusen v Jackson, 35 A.D.2d 58, 28 N.Y.2d 608; Matter of Village of Bronxville v Francis, 1 A.D.2d 236, 1 N.Y.2d 839; Matter of New York State Elec.& Gas Corp. v McCabe, 32 Misc. 2d 898; Matter of Niagara Mohawk Power Corp. v City of Fulton, 8 A.D.2d 523; Matter of Bolo v Egan, 57 A.D.2d 841; Matter of Wachsberger v Michalis, 19 Misc. 2d 909.) of JUDGES Chief Judge Wachtler and Judges Simons, Kaye, Titone and Hancock, Jr., concur. AUTHOR: BELLACOSA OPINION {*594} Appellant Doyle challenges the Clarkstown Zoning Board of Appeals' (Board) denial of his application for area variances to allow subdivision of a 29,370-square-foot parcel of property located in New City, Rockland County, into two building plots. We affirm the order of the Appellate Division, Third Judicial Department, on transfer from the Second Department pursuant to New York Constitution, article VI, 4 (g), because we agree with both lower courts that there is substantial record (c) 1994 By The Michie Company, A Division of The Mead Corporation evidence supporting the Board's determination that Doyle did not establish practical difficulties or significant economic injury which would entitle him to the variances. To the extent that Matter of Fulling v Palumbo (21 N.Y.2d 30) suggests otherwise with respect to the measurement of significant economic injury, it should no longer be followed. The property in issue, which Doyle purchased in 1980 for $ 64,000, contains two residences--a year-round home and a "summer home". Doyle resided in the year-round home and rented the latter until 1987, when he moved away and began to rent both residences. At the time the record in this case {*595} was made before the Board, Doyle was receiving $ 1,775 per month in rental income from the dual rentals of the property. [206zThe applicable Clarkstown zoning ordinance requires 22,500-square-foot minimum building lots. In 1989, Doyle applied to the Board for area variances to subdivide his property into two separate building lots: a 14,367-square-foot lot for the year-round home and a 15,003-square-foot lot for the summer place. He alleged in his application and supporting papers that he had been "unable to sell his property as a single parcel" for over three years, having received no purchase offers at his reduced asking price of $ 225,000 (from $ 280,000). He concluded that "without [the] variances [he] would suffer great economic injury." The Board denied the application after a public hearing, concluding that Doyle had not established a "practical difficulty ... that would deprive [him] of the reasonable use of the land or building involved", as required by Clarkstown Code 106-31 (C) (2). It added that he had not proven that he was unable to sell the property for a profit, noting that he had purchased the property for $ 64,000 only 10 years ago. Doyle sued the Board on the grounds that its denial of his application was illegal, arbitrary and capricious. Supreme Court, Rockland County, dismissed the petition and the Appellate Division, Third Department, affirmed. The applicable case law in the Appellate Division, Second Department (where the intermediate appeal originated), and the case law in the Third Department (to which it was transferred) was essentially the same in all relevant respects. If it were different, the view of the originating intermediate appellate court governs until we finally settle the issue (see, Siegel, The Second Department's Transferred Cases: Whose Law Applies in a Conflict?, NYLJ, Apr. 23, 1990, at 1, col 1). Applicants for area variances are obliged to demonstrate to zoning authorities that strict compliance with an applicable zoning ordinance will result in practical difficulty to the property owner (Matter of Fuhst v Foley, 45 N.Y.2d 441, 445; (c) 1994 By The Michie Company, A Division of The Mead Corporation Conle¥ v Town of Brookhaven Zoning Bd. of Appeals, 40 N.Y.2d 309, 314). "Practical difficulty", while not subject to precise definition, may be established generally by proof that a property owner cannot utilize the property without violating zoning ordinance restrictions (Matter of Fuhst v Foley, supra, at 4%5). Judicial review of municipal land use determinations of this kind, i.e., a zoning board's denial of a variance application {*596} based on the property owner's failure to establish practical difficulty, is subject to the limitation that courts may not interfere with decisions enjoying a rational basis, supported by substantial evidence in the record (id., at 444; Matter of Cowan v Kern, 41 N.Y.2d 591, 599; Conle¥ v Town of Brookhaven Zoning Bd. of Appeals, 40 N.Y.2d 309, 314, supra). The Board's decision in this case that Doyle made an insufficient showing of practical difficulty rests comfortably on a rational basis and substantial evidence. The Board acknowledges that its denial of Doyle's application for variances does not prohibit him from continuing to reap a significant annual rental income from the two dwellings on his property, which is significantly undersized for a double building use (compare, Matter of Hoffman v Harris, 17 N.Y.2d 138). Alternatively, it is not without significance that Doyle may sell his property, albeit perhaps at a price less than the $ 225,000 he last sought, and receive a substantial profit on his initial investment. Doyle counterargues that he is entitled to the requested area variances, in any event, because without them he incurs significant economic injury. "Significant economic injury" in this context may be established by proof that the specific use permitted by the zoning ordinance will not yield a reasonable return if the applicable land use restrictions are enforced (Matter of National Merritt v Weist, 41 N.Y.2d 438, 442). This calculation focuses on the value of the property as presently zoned, not the value the property would have if the variance were granted (Matter of Cowan v Kern, 41 N.Y.2d 591, 597, supra; Matter of Douglaston Civic Assn. v Galvin, 36 N.Y.2d 1, 9). To the extent that Matter of Fulling v Palumbo (21 N.Y.2d 30, supra) holds otherwise in this respect, it should no longer be followed and is overruled. Since Fulling, we have refined the rules to reject the notion that significant economic injury may be established by proof that the property would yield a greater return to the owner with the variance than without it (Matter of Cowan v Kern, supra, at 596-597; 2 Anderson, New York Zoning Law and Practice 23.39, at 217-218 [3d ed]). Thus, proof that a parcel, if subdivided pursuant to a variance, could be sold to yield a higher profit to the owner does not constitute significant economic injury (see, Matter of Graziano v $calafani, 143 A.D.2d 664, 666; 2 Anderson, op. cit., 23.42, at 224-225). Although Doyle alleges that the value of his property as (c) 1994 By The Michie Company, A Division of The Mead Corporation zoned, without a variance, is $ 280,000, he submitted no certified {'597) appraisal to that effect, relying solely on real estate brokers' estimates. While that failure of proof alone might not be determinative in the context of this case, Doyle has also been receiving over $ 20,000 per year in rental income from the continued nonconforming use of his property, which he purchased for $ 64,000 in 1980. Moreover, he submitted no proof that he would not realize a reasonable return on his investment if he sold the parcel for an amount somewhat below his last asking price of $ 225,000. The record establishes that the $ 64,000 Doyle initially paid for the property would have been worth approximately $ 151,500 as of January 1, 1990 had he invested it and received an average yield of 9%. Doyle submitted no evidence that he made any substantial improvements to the property. Finally, we note that inasmuch as the applicable zoning restrictions were in effect when Doyle purchased the property, any claimed economic hardship is self-imposed (Matter of Cowan v Kern, supra, at 597; Matter of National Merritt v Weist, supra, at 442; Matter of Graziano v Scalafani, supra, at 665-666). On this record, we agree with the courts below that it cannot be said as a matter of law that the Board abused its authority in rejecting Doyle's application for area variances. Accordingly, the order of the Appellate Division should be affirmed, with costs. DISPOSITION Order affirmed, with costs. (c) 1994 By The Michie Company, A Division of The Mead Corporation In the Matter of GARY T. DOYLE, Appellant, VS. RONALD AMSTER et al., Constituting the Clarkstown Zoning Board of Appeals, Respondents No. 63757 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT 575 N.Y.S.2d 424, 176 A.D.2d 1128 October 24, 1991 Appeal (transferred to this court by order of the Appellate Division, Second Department) from a judgment of the Supreme Court (Carey, J.), entered August 27, 1990 in Rockland County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Town of Clarkstown Zoning Board of Appeals denying petitioner's request for, inter alia, an area variance. COUNSEL Ferraro, Goldstein, Yatto & Zugibe (Stephen J. Cole-Hatchard of counsel), New City, for appellant. Murray N. Jacobson (Ronald E. De Christoforo of counsel), New City, for respondents. JUDGES Mahoney, P.J., Weiss, Yesawich Jr., Levine and Mercure, JJ., concur. OPINION MEMORANDUM AND ORDER Contrary to petitioner's contention, the denial of his application for an area variance by the Town of Clarkstown Zoning Board of Appeals was not illegal, arbitrary or an abuse of discretion (see, Barrett v Rose, 152 A.D.2d 525). The property in question contained two houses on a single lot which, under {'1129} current zoning laws, was large enough for only one house. Petitioner sought a variance so that he could divide the property into two lots and sell the two houses separately. The record before us supports the conclusion that petitioner failed to demonstrate either practical difficulty or significant economic hardship entitling him to the requested variance (see, Matter of Hansen v Zoning Bd. of Appeals of Town of Islip, 158 A.D.2d (c) 1994 By The Michie Company, A Division of The Mead Corporation 689). As to the question of practical difficulty, it should be noted that the variance sought was substantial. Furthermore, he purchased the property with the homes already constructed and with the zoning laws already in effect. Finally, both buildings were being rented and petitioner failed to show that h'e was being deprived of a reasonable rate of return on the land. (see, id.; Matter of Stengel v Town of Woodstock Zoning Bd. of Appeals, 155 A.D.2d 854). On the question of economic hardship, we note that a denial of an area variance is not arbitrary or capricious just because the property is worth more with an area variance than without one. (see, Matter of Johansen v Ochsie, 158 A.D.2d 886). DISPOSITION ORDERED that the judgment is affirmed, without costs. (c) 1994 By The Michie Company, A Division of The Mead Corporation MATTER OF LAWRENCE M. SASSO AND EVELYN PLANTY EDNEY, APPELLANTS, ELLIOTT OSGOOD, PEARL MC GORY, WAYNE WILSON, DAVID MAGOS AND DONALD SMITH, CONSTITUTING THE ZONING BOARD OF APPEALS OF THE TOWN OF HENDERSON, RESPONDENTS. GERALD G. SPEACH, INTERVENOR-RESPONDENT. SUPREME COURT OF NEW YORK, 1994 N.Y. July NO. 0699 APPELLATE DIVISION, FOURTH DEPARTMENT App. Div. LEXIS 7736 15, 1994, Filed (Appeal from Judgment of Supreme Court, Jefferson County, Gilbert, J. - Article 78. JUDGES PRESENT: DENMAN, P.J., PINE, FALLON, CALLAHAN, DAVIS, JJ. OPINION Judgment unanimously reversed on the law without costs and petition granted. Memorandum: Supreme Court failed to exercise its review function properly in denying the petition to annul a determination of the Zoning Board of Appeals of the Town of Henderson (ZBA). The ZBA granted an area variance to intervenor, the owner of a substandard lot, to enable him to demolish an existing single-slip boathouse and erect a three-slip boathouse in its place. Although local zoning boards have discretion in considering an application for a variance and the judicial function is a limited one (see, Matter of Fuhst v Foley, 45 N.Y.2d 441, 444), a court reviewing the substantiality of the evidence upon which such a variance is granted "exercises a genuine judicial function" (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 N.Y.2d 176, 181). The court failed to specify what evidence it considered to be substantial and to provide a rational basis for the ZBA's determination, and our review of the record indicates that many of the ZBA's findings of fact are unsupported. In particular, we conclude that the record does .not support the ZBA's findings that, absent a variance, the subject lot may never be used and will be rendered valueless; that the proposed use will not be detrimental to nearby properties; and that the substantiality of the requested variance is excusable to "restore equality of permitted use". Further, the ZBA's determination appears to have been (c) 1994 By The Michie Company, A Division of The Mead Corporation based in part upon the erroneous belief that Town Law 267-b provides a more lenient standard for the granting of an area Variance because the term "practical difficulty" was removed from the statutory language. There is no appreciable difference between the standard set forth in the newly-enacted Town Law 267-b (3) (b) and the familiar "practical difficulty" standard, and an applicant still must demonstrate that strict compliance with the zoning ordinance will result in practical difficulties (see, O'Keefe v Donovan, 199 A.D.2d 681; Matter of Vilardi v Roth, 192 A.D.2d 662). Thus, the ZBA's failure to require intervenor to make such a showing was erroneous. (c) 1994 By The Michie Company, A Division of The Mead Corporation MATTER OF LAWRENCE M. SASSO AND EVELYN PLANTY EDNEY, APPLTS., vs. ELLIOTT OSGOOD, PEARL MC GORY, WAYNE WILSON, DAVID MAGOS AND DONALD SMITH, CONSTITUTING THE ZONING BOARD OF APPEALS OF THE TOWN OF HENDERSON, RESPTS.~ AND GERALD G. SPEACH, INTVR.-RESPT. SUPREME COURT OF NEW YORK, 1994 N.Y. September No. 699/94 APPELLATE DIVISION, FOURTH DEPARTMENT App. Div. LEXIS 10412 30, 1994, Filed JUDGES PRESENT: DENMAN, P.J., PINE, FALLON, CALLAHAN, DAVIS, JJ. OPINION Motion for leave to appeal to Court of Appeals denied. (c) 1994 By The Michie Company, A Division of The Mead Corporation In the Matter of Sol Levine et al., Appellants, Elise Korman et al., Respondents, and Elizabeth M. Cain, Intervenor- Respondent. 90-09089, 90-09091 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 586 N.Y.S.2d 620, 185 A.D.2d 323 July 20, 1992, Decided In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Zoning Appeals for the Incorporated Village of Southampton, dated January 19, 1989, which denied the petitioners' application for an area variance, the petitioners appeal from (1) an order of the Supreme Court, Suffolk County (Namm, J.), dated June 25, 1990, which directed that the proceeding be dismissed, and (2) a judgment of the same court, entered September 18, 1990, upon the order, which dismissed the proceeding. As Revised August 11, 1992. COUNSEL Bourke, Flanagan and Asato, Southampton, N.Y. (Gilbert G. Flanagan of counsel), for appellants. David J. Gilmartin, Southampton, N.Y., for respondents. Elbert W. Robinson, Jr., Southampton, N.Y., for intervenor-respondent. JUDGES Thompson, J. P., Eiber, Pizzuto and Santucci, JJ., concur. OPINION {*323} Ordered that the appeal from the order is dismissed (see, CPLR 5701 [b] [1]), and it is further, Ordered that the judgment is affirmed, and it is further, Ordered that the respondents and intervenor-respondent, appearing separately and filing separate briefs, are awarded one bill of costs. (c) 1994 By The Michie Company, A Division of The Mead Corporation We reject the petitioners' contention that they could legally construct the desired expansion of their home for use as a master bedroom without a variance. The Code of the Village of Southampton 116-19 (c) (3) provides that a nonconforming structure such as the petitioners' home "may be enlarged ... except that the degree of nonconformity shall not be increased". An interpretation of that section that an increase in the bulk of a nonconformity would constitute an increase in the "degree of nonconformity" is reasonable and rational (see, Matter of Frishman v Schmidt, 61 N.Y.2d 823). Therefore, a variance for the expansion was required. With respect to the denial of the variance, upon review, the determination of a zoning board should be regarded as presumptively correct, and that determination will be upheld where it is supported by substantial evidence (see, Matter of Fuhst v Foley, 45 N.Y.2d 441; Matter of Cowan v Kern, 41 N.Y.2d 591; Matter of Perlman v Board of Appeals, 173 A.D.2d {*324} 832). In the present case, the petitioners failed to make the requisite showing of "practical difficulties" in order to establish entitlement to an area variance by demonstrating that without the variance they could not utilize the structure without coming into conflict with the restrictions of the zoning ordinance (see, Matter of Fuhst v Foley, supra, at 445). In addition, the requested variance for the extension was sought merely to accommodate a chosen aesthetic design, which will not support a finding of practical difficulties (see, Matter of Mizrachi v Siegel, 160 A.D.2d 801). Moreover, the petitioners are presumed to have had knowledge at the time they purchased the property of the applicable zoning restrictions, and, therefore, under the circumstances of this case any hardship was self-created (see, Matter of Suratwala v Case¥, 172 A.D.2d 613; Matter of Iannucci v Case¥, 140 A.D.2d 343). Thus, the Board's determination was supported by substantial evidence, and, therefore, was proper. (c) 1994 By The Michie Company, A Division of The Mead Corporation In the Matter of Randolph Cowan, Respondent, VS. Roy M. Kern et al., Constituting the Zoning Board of Appeals of Rthe Town of Smithtown, Appellants Matter of [NO NUMBER IN ORIGINAL] COURT OF APPEALS OF NEW YORK 363 N.E.2d 305, 41 N.Y.2d 591 April 5, 1977, Decided Cowan v Kern, 51 A.D.2d 569, reversed. COUNSEL Dudley L. Lehman, Smithtown, for appellants. Sidney N. Gitelman, East Northport, for respondent. JUDGES Chief Judge Breitel and Judges Jones, Wachtler and Fuchsberg concur with Judge Jasen; Judge Gabrielli dissents votes to affirm in a separate opinion in which Judge Cooke concurs. and AUTHOR: JASEN OPINION {*592} The sole issue presented on this appeal is whether the Zoning Board of Appeals abused its discretion, as a matter of law, in denying petitioner's application for a zoning variance. In January 1970, petitioner Randolph Cowan purchased, at a tax sale, a substandard parcel of land in the Ronkonkoma Heights section of the Town of Smithtown. The parcel consists of three separate building lots and has a total land area of 7,500 square feet. The property is located in an "R-10" residential zone which authorizes the construction of single-family residences on minimum plots of 10,000 square feet. The land was originally divided into building lots by a map filed in 1911 and the 10,000 square feet requirement was first imposed in 1949. In order to construct a residence on the Cowan property, a variance must be obtained to cover the total area deficiency, as well as deficiencies in the sizes of the proposed front and rear yards. (c) 1994 By The Michie Company, A Division of The Mead Corporation In January 1974, Cypress Homes, Inc., a builder and the prospective purchaser under a contract of sale, applied for the necessary variance, asserting that the Cowan parcel was the same size as other improved parcels on the same street. The Zoning Board of Appeals denied the application on February 26, 1974 and the contract of sale was rescinded. The landowner, Cowan, then sought to obtain a building permit for the property, but the request was denied on the ground that a variance had not been obtained. Thus, on May 24, 1974, Cowan applied directly to the board for the necessary variance. His application was based on much the same contention as had been asserted in the earlier application by the builder: the fact that others had built on similarly sized properties and that a residence on his property would be in conformity with the character of the neighborhood. It was also claimed that denial of the variance would inflict "severe" economic hardship on the landowner. On June 25, 1974, the board conducted a hearing on the Cowan application. The landowner submitted proof that, of {*593} the 17 parcels on his block, nine parcels either met or exceeded the zoning requirements and that eight others did not. With respect to the eight substandard properties, two (the Cowan property and one other) had not yet been improved. Two substandard parcels had been improved after the board had granted requisite area variances. No evidence was introduced by petitioner to explain whether the remaining four improved but substandard properties were nonconforming uses constructed prior to the 1949 zoning ordinance or had been the subject of prior grants of variance or, finally, were constructed in plain violation of the zoning ordinance. The landowner did produce an analysis of the entire neighborhood, including several nearby blocks, which indicated that approximately 67% of the distinct parcels and approximately 77% of all the individual building lots in the area conformed to the zoning requirement. The applicant's expert appraiser testified that the value of the real property, with the variance, would be approximately $ 7,500. Without the variance, the landowner would be able to sell the nonbuildable plot to the owner of an adjoining parcel for approximatel~ $ 1,000. The landowneu~ did not report the price he paid for the property at the tax sale. Several persons appeared at the hearing in opposition to the variance application. The neighboring landowners testified that if Cowan were to build on his property, there would be less than the 100-foot distance between Cowan's cesspool and their water wells, as required by the ordinance. This testimony was rebutted to some extent by a letter from the Suffolk County Department of Health to the effect that the Cowan cesspool could be located the necessary distance away from the neighboring wells and that any shortage in the distance between Cowan's well and (c) 1994 By The Michie Company, A Division of The Mead Corporation the neighbors' cesspools could be compensated for by digging the Cowan well deeper. Unrebutted, however, was the testimony of one neighbor that all of the houses on substandard plots, save the two for which variances had been granted, had been constructed prior to the adoption of the 1949 area requirement. Hence, it was established that four of the six improved but substandard parcels were nonconforming uses. On September 16, 1974, after the board had failed to pass upon his application, Cowan commenced an article 78 proceeding to compel the board to grant him a variance. At a regular meeting six days later, the board voted to deny the application. The board found that the character of the neighborhood {'594} was substantially in accordance with the zoning requirements and that the applicant had failed to establish unnecessary hardship or practical difficulty. It was noted that "the applicant did not testify before the board as to what the loss of value in the premises would have been to him, since it was not revealed what the purchase price of the subject parcel was at the time applicant purchased same. Therefore, the board would also find that the testimony of applicant's expert witness is incomplete and affords very little upon which this board can determine the loss in value to said applicant." Special Term awarded judgment to the board and dismissed the article 78 proceeding. The court ruled that "where, as here, a substandard parcel of property is purchased at a tax sale, the purchaser thereof cannot later claim that a denial of a variance for that property results in a severe economic hardship. The Court further finds that petitioner has failed to demonstrate that the character of the neighborhood is substandard." Petitioner moved for renewal of the article 78 proceeding and for a hearing on the ground that the board had discriminated against him. The court granted the request for a hearing. The petitioner submitted proof that, on November 11, 1971, the board had granted area, front yard and rear yard variances to the owners of two parcels immediately adjoining petitioner's. No other proof was put forward; instead, counsel for petitioner engaged in a lengthy oral argument. The court denied the motion for renewal on the ground that the petitioner had failed to establish his claim of discrimination. The Appellate Division, with one Justice dissenting, reversed the judgment of Special Term and directed that the board grant petitioner a variance. (51 A.D.2d 569.) On appeal, petitioner presents two separate arguments in support of his claim for the variance. First, it is argued that the board, by granting variances to others similarly situated while denying relief to the petitioner, discriminated against him and, thereby, abused its authority. A second and distinct contention is that the petitioner had submitted ample proof that the application of the zoning ordinance to his property would result in economic hardship entitling him to a variance. We (c) 1994 By The Michie Company, A Division of The Mead Corporation conclude that the record does not reveal abuse of discretion. We would, therefore, the Appellate Division and reinstate the Term. either discrimination reverse the order of judgment of Special or As to the claim of discrimination, the law is well settled {*595} that the mere fact that one property owner is denied a variance while others similarly situated are granted variances does not, in itself, suffice to establish that the difference in result is due either to impermissible discrimination or to arbitrary action. The controlling principles were stated by Judge Lehman, with his usual eloquence, long ago. "The mere fact that consents were granted to owners of premises somewhat similarly situated does not in itself show that consent was arbitrarily refused to this applicant. The question is not whether someone else has been favored. The question is whether the petitioner has been illegally oppressed. Exercise of discretion in favor of one confers no right upon another to demand the same decision. Unlimited discretion vested in an administrative board by ordinance is not narrowed through its exercise. * * * The [board] may refuse to duplicate previous error; it may change its views as to what is for the best interests of the [town]; it may give weight to slight differences which are not easily discernible. There are, of course, extreme cases where analogy is so complete, where grant of consent under similar circumstances has been so frequent, both before and after refusal in one instance, that inference arises that the refusal is the result of unfair discrimination and oppression. Especially is this true where strong reason is made out for granting the consent. In such case, perhaps, the courts may call upon the dispensing power to rebut such inference." (Matter of Larkin Co. v Schwab, 242 NY 330, 336-337; accord Matter of Crossroads Recreation v Broz, 4 N.Y.2d 39, 46-47.) Here, petitioner has shown only that two variance applications were granted to adjoining landowners in 1971. Although the board of health indicated that it was technically feasible to lay out water and sewage facilities in a manner that would not create an unsanitary condition, the zoning board was certainly free to conclude that, after three years from the last residential construction, the area had become too congested to permit further substandard development. The board could consider the existence of several nonconforming uses in the same immediate vicinity, uses that, constitutionally, the board was powerless to change. That the board had granted two variances in the past did not strap it to grant variances to all comers in the future automatically and without due regard for {*596} changed conditions that might require a different result. Having granted two variances in the past, the board could properly decide that additional variances would impose too great a burden and strain on the existing community. More importantly, the board, after three years' reflection, could find that previous awards had been (c) 1994 By The Michie Company, A Division of The Mead Corporation a mistake that should not be again repeated. Certainly, the board was not bound to perpetuate earlier error. Three additional factors are important. Only two variances were awarded in the past and these applications were decided at the same time. The evidence showed that the neighborhood, generally, was in conformity with the ordinance and the other exceptions on this particular block were not due to variance awards, but were created prior to the adoption of the present. zoning requirement. Thus, this is certainly not the extreme case where the board had consistently granted variances and issued building permits to all in the neighborhood save a few selected out for discriminatory treatment. (See Matter of Ozolins v Horn, 26 A.D.2d 555.) Secondly, the timing of the two variance grants indicates that the awards were made on an individual basis viewed in the light of conditions then prevailing in the community. Phrased another way, there is no history of a consistently liberal board policy that was suddenly and dramatically changed to the disadvantage of this petitioner. Thirdly, the board denied a variance to a builder who sought to construct a residence on the same parcel. This indicates that the board had changed its policy on variances even before this petitioner applied for one. Thus, denial of his application was consistent with the board's policy with respect to this neighborhood. Turning to the second ground pressed by the petitioner -- that the board abused its discretion in denying the variance -- we find that the evidence substantiates the board's conclusion that the petitioner had failed to establish that the denial of the variance would result in the infliction of either significant economic hardship or practical difficulty. Before the zoning authority is required to explain why the public health and welfare requires adherence to the zoning standard, the petitioner must first come forward with proof of significant economic injury. (Matter of National Merritt v Weist, 41N.Y.2d 438, 442, 445; see Conle¥ v Town of Brookhaven Zoning Bd. of Appeals, 40 N.Y.2d 309.) The petitioner's only proof on the question of. financial hardship was to the effect that if the {*597} variance was granted the real property for building purposes would be worth approximately $ 7,500, whereas the real property was worth only approximately $ 1,000 without the variance. However, in calculating whether financial hardship would be inflicted by adherence to the zoning standard, the inquiry should properly focus upon the value of the parcel as presently zoned, rather than upon the value that the parcel would have if the variance were granted. (Matter of Douglaston Civic Assn. v Galvin, 36 N.Y.2d 1, 9.) Concededly, the parcel, without the variance, has an economic value of at least $ 1,000. In the absence of proof as to what the petitioner paid for the property at the tax sale, there is no predicate which would support a finding of economic hardship in requiring the petitioner to adhere to the zoning ordinance. Thus, the petitioner failed to prove that the property (c) 1994 By The Michie Company, A Division of The Mead Corporation "will not yield a reasonable return if the area standard restrictions are imposed." (Matter of National Merritt v Weist, supra, at p 442.) Moreover, the manner in which petitioner acquired the property, by purchase at a tax sale, indicates that any hardship was willingly assumed. In view of the tax sale purchase, the petitioner, is certainly "chargeable with knowledge of the interdictions of the zoning ordinance which limited * * * development." (Matter of National Merritt v Weist, supra, at p 444.) Hence, economic loss, if there be any, was self-inflicted and self-created. While no proof of the purchase price has been adduced, it is reasonable to assume that the price obtained by the County of Nassau at the sale reflected the value of the property as restricted by the ordinance. Hence, the granting of the variance would, like as not, result in a windfall to petitioner well above the minimal price paid at the tax sale. While the fact that any financial hardship was self-imposed does not prevent the board from granting the variance in a proper exercise of its discretion (Conle¥ v Town of Brookhaven Zoning Bd. of Appeals, 40 N.Y.2d 309, 315, supra), the existence of a self-created hardship does not entitle the landowner to demand a variance. (Matter of National Merritt v Weist, supra, at p 442.) One further comment is necessary. The dissent places its primary reliance on the standard of review articulated in Matter of Fulling v Palumbo (21 N.Y.2d 30, 33). Since 1967 when Fulling was decided, we have had numerous occasions to both clarify and modify much of its admittedly broad language. (E.g., Matter of National Merritt v Weist, supra, at p {'598} 442; Conle¥ v Town of Brookhaven Zoning Bd. of Appeals, supra; Matter of Overhill Bldg. Co. v Delan¥, 28 N.Y.2d 449, 455; Matter of 113 Hillside Ave. Corp. v Zaino, 27 N.Y.2d 258, 261-262.) The present dispute simply involves a challenge to the rationality of an administrative decision. The petitioner does not challenge the constitutionality of the zoning ordinance as applied to his property. In this circumstance, it would be inappropriate to apply constitutional criteria (see, e.g., Matter of Grimpel Assoc. v Cohalan, 41 N.Y.2d 431; McGowan v Cohalan, 41 N.Y.2d 434) in lieu of the traditional standard applicable to the judicial review of all kinds of administrative determinations. Even the Fulling case recognized the limited nature of the judicial scrutiny of local zoning decisions. Notwithstanding the broader sweep of the opinion, the ultimate issue was stated to be whether "the Zoning Board of Appeals abused its discretion, as a matter of law". (21 N.Y.2d, at p 32.) The dicta to which the dissent averts is not now, if it ever was, representative of the state of the law. In fact, the cases which followed Fulling quite consistently adhered to the traditional standard. (E.g., Matter of 113 Hillside Ave. Corp. v Zaino, 27 N.Y.2d 258, 261-262, supra; Matter of Overhill Bldg. Co. v Delan¥, 28 N.Y.2d 449, 454, 455, supra ; see Matter of National Merritt v Weist, 41 (c) 1994 By The Michie Company, A Division of The Mead Corporation N.Y.2d 438, 442-443, supra.) We have recently reiterated the rule. "The oft-stated standard by which a request for an area variance is to be measured is whether strict compliance with the zoning ordinance will result in practical difficulties. (E.g., Matter of Wilcox v Zoning Bd. of Appeals of City of Yonkers, supra; Matter of Village of Bronxville v Francis, 1 A.D.2d 236, 238, affd 1 N.Y.2d 839; 2 Anderson, New York Zoning Law and Practice [2d ed], 18.32, 18.33, 18.40.) The local zoning boards have discretion in considering applications for variances and the judicial function is a limited one. The courts may set aside a zoning board determination only where the record reveals illegality, arbitrariness or abuse of discretion. (Matter of Fulling v Palumbo, 21 N.Y.2d 30, 32; Matter of Lemir Realty Corp. v Larkin, 11 N.Y.2d 20, 24.) Phrased another way, the determination of the responsible officials in the affected community will be sustained if it has a rational basis and is supported by substantial evidence in the record. (Matter of Wilcox v Zoning Bd. of Appeals of City of Yonkers, 17 N.Y.2d 249, 255, supra.)" (Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 N.Y.2d 309, 314, supra.) {*599} The crux of the matter is that the responsibility for making zoning decisions has been committed primarily to quasi-legislative, quasi-administrative boards composed of representatives from the local community. Local officials, generally, possess the familiarity with local conditions necessary to make the often sensitive planning decisions which affect the development of their community. Absent arbitrariness, it is for locally selected and locally responsible officials to determine where the public interest in zoning lies. (McGowan v Cohalan, 41 N.Y.2d 434, 438, supra.) Judicial review of local zoning decisions is limited; not only in our court but in all courts. Where there is a rational basis for the local decision, that decision should be sustained. It matters not whether, in close cases, a court would have, or should have, decided the matter differently. The judicial responsibility is to review zoning decisions but not, absent proof of arbitrary and unreasonable action, to make them. Nothing in Matter of Fulling v Palumbo (21 N.Y.2d 30, supra) is to the contrary. Here, the record does not indicate that the zoning board acted in a manner that was in any way arbitrary, unreasonable, irrational or indicative of bad faith. Its decision, therefore, should not have been disturbed. Accordingly, the order of the Appellate Division should be reversed and the judgment of Special Term reinstated. DISPOSITION (c) 1994 By The Michie Company, A Division of The Mead Corporation Order reversed, with costs, and the judgment of Supreme Court, Suffolk County, reinstated. DISSENT Gabrielli, J. (dissenting). I respectfully dissent and vote to affirm the order of the Appellate Division. In this case the petitioner seeks an area variance n! as distinguished from a use variance, and just recently this court stressed the importance of this distinction "since, in the usual case, a use variance will have a greater impact on the community than an area variance which does not involve a use prohibited by the ordinance" (Matter of National Merritt v Weist, 41 N.Y.2d 438, 441). An area variance does not alter the basic character and nature of the community in the manner that a use variance does and, therefore, the courts have rationalized and properly held that different standards of burden of proof are applicable (Matter of National Merritt v Weist, supra). "The difference in the level of proof is explained by the fact that, generally, an area variance will release a landowner from the duty to follow {'600} the strict letter of the zoning ordinance so that the land may be put to a permitted use. On the other hand, a use variance, if granted, will result in the use of land in a manner inconsistent with the basic character of the neighborhood" (Conle¥ v Town of Brookhaven Zoning Bd. of Appeals, 40 N.Y.2d 309, 313-314). The petitioner has the burden of proving that the imposition and application of an area standard will create significant economic injury (Matter of Fulling v Palumbo, 21 N.Y.2d 30) and once that proof is adduced "the burden of going forward with proof that the restriction is reasonably related to a legitimate exercise of the zoning power is upon the municipality (Matter of National Merritt v Weist, supra, at p 443). The proof of significant economic injury is met by demonstrating that the property will not yield a reasonable return, but there is no requirement that in an area variance case the petitioner must prove what he paid for the property. In Matter of Fulling v Palumbo (supra) the proof demonstrated that Fulling had been offered $ 11,000 for his property by his two neighbors but with an area variance he could obtain double that amount. This was deemed sufficient to satisfy his burden of proving significant economic loss. In the case before us Cowan demonstrated that without the variance his neighbor owning contiguous land, and who had objected to the grant of the variance in this case, n__2 would purchase the property for $ 1,000 but with the variance the value would rise to $ 7,500. This, too, should be deemed sufficient to sustain the burden of proof. The fact that Cowan purchased the property at a tax sale and failed to reveal the price paid is not determinative here. To demonstrate, if Cowan had paid in excess of $ 1,000 for the (c) 1994 By The Michie Company, A Division of The Mead Corporation property, clearly the denial of the area variance would result in economic hardship because it would result in an actual financial loss. Likewise, if he paid less than $ 1,000, a situation analoguous to the facts in Fulling, he has still demonstrated economic hardship because literal enforcement of the ordinance will cost him 86% of the value of his land (see 2 Anderson, New York Zoning Law and Practice, 18.40). {'601) Serious financial injury need not be equated to actual financial loss; a significant differential in value may amount to a hardship even if the owner paid nothing for the property. The majority, citing Matter of Douglaston Civic Assn. v Galvin (36 N.Y.2d 1, 9), holds that in determining financial hardship, inquiry should focus on the value of the property as presently zoned, "rather than upon the value that the parcel would have if the variance were granted" (p 597). Matter of Douglaston Civic Assn. involves a use variance. The standard of proof in a use variance case must necessarily be more stringent than in an area variance case because the character of the community is affected. On the other hand, proof of economic injury, in the context of an area variance, need not be as restrictive since the over-all impact of relief is less burdensome on the community. The quantum of evidence necessary to satisfy the burden of proof must be balanced with the public interest affected (see Matter of National Merritt v Weist, supra). Where the petitioner shows that the value of the property under the existing area restriction does not yield a reasonable return as compared to the value of the property with an area variance, the burden of proof of economic injury has been met. Economic injury does not, of course, end the matter. If there is a legitimate purpose for the ordinance and it is reasonably related to the public health, financial loss will be inadequate to justify granting the variance (Matter of Overhill Bldg. Co. v Delan¥, 28 N.Y.2d 449). In this case, however, the board introduced insufficient "evidence", and indeed the record is sparse, if not totally lacking in evidence that denying the variance would benefit the public health and welfare. The fact that the financial hardship may be self-imposed does not prevent the board from granting the variance (Conle¥ v Town of Brookhaven Zoning Bd. of Appeals, supra) but is one factor which may be weighed with the evidence before it. The decision of the board is silent on the issue of self-created hardship but even if it had been considered, in view of the severity of the economic loss, it would be insufficient to mandate denial of the variance. Accordingly, the order of the Appellate Division should be affirmed. OPINION FOOTNOTES (c) 1994 By The Michie Company, A Division of The Mead Corporation n* The Appellate Division's statement to the effect that a claim of discrimination is made out simply if "Tweedledee is granted, and Tweedledum is denied" (51 A.D.2d, at p 570), is in plain conflict with established principles and cannot be sustained. DISSENT FOOTNOTES nl The ordinance requires an area of 10,000 square feet. Petitioner, desiring to erect a one-family residence, requested an area reduction by reducing the front yard setback from 40 feet to 37 feet and a backyard setback from 50 feet to 38 feet. n2 It is of consuming interest to note that this objecting neighbor had but recently been granted a similar area variance. Obviously, the ordinance was calculated to maintain the essential character of the neighborhood, which was residential, and there was no evidence that a grant of the variance would defeat this purpose; and, in fact, the proof established that a new house on this lot would improve the neighborhood. (c) 1994 By The Michie Company, A Division of The Mead Corporation In the Matter of Rosario Vilardi, Appellant, VS. David Roth, as Chairman of the Board of Zoning Appeals of the Town of Babylon, et al., Respondents. 91-03564 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 597 N.Y.S.2d 86, 192 A.D.2d 662 April 19, 1993, Decided In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Babylon, dated February 22, 1990, which, after a hearing, denied his application for area variances, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Brown, J.), entered D~cember 11, 1990, which confirmed the determination and dismissed the proceeding. COUNSEL Arthur J. Giorgini, Lindenhurst, N.Y., for appellant. stephen L. Braslow, Town Attorney, Lindenhurst, N.Y. (Joseph F. Buzzell of counsel), for respondents~ JUDGES Bracken, J. P., Lawrence, Copertino and Pizzuto, JJ., concur. OPINION {*663} Ordered that the judgment is affirmed, with cost~. The petitioner owns a substandard lot consisting of 4,524 square feet. This property is located in a zone in which, pursuant to the local zoning ordinance (Code of the Town of Babylon 213-79 [A]), a minimum lot area of 10,000 square feet is generally applicable. However, in cases of properties which have been held in single and separate ownership since 1954, as has the petitioner's, the controlling minimum lot size is 6,000 square feet (Code of the Town of Babylon 213-79 [A]). The petitioner applied for an area variance with respect to the minimum lot area provision and for several other variances, including variances relating to the minimum front street line, front yard and rear yard requirements. The Town of Babylon Zoning Board of Appeals denied that application, and the (c) 1994 By The Michie Company, A Division of The Mead Corporation instant proceeding pursuant to CPLR article 78 was commenced. In the judgment appealed from the determination was confirmed and the proceeding dismissed. We affirm. In rendering its determination denying the petitioner's application, the Zoning Board of Appeals of the Town of Babylon considered the five factors set forth in the case of Matter of Wachsberger v Michalis (19 Misc. 2d 909, affd 18 A.D.2d 921), which are similar to the five factors now set forth in Town Law 267-b (3) (b) (eff July 1, 1992, L 1991, ch 692, 9). The respondents also considered whether denial of the variance would result in significant economic injury, in light of the standard set forth in Fulling v Palumbo (21 N.Y.2d 30, overruled in Matter of Doyle v Amster, 79 N.Y.2d 592) and Human Dev. Servs. v Zoning Bd. of Appeals (67 N.Y.2d 702). We agree with the Supreme Court that the determination to deny the petitioner's application has a rational basis and is supported by substantial evidence in the record (see, Matter of Doyle v Amster, 79 N.Y.2d 592, 596, supra; see also, Matter of Fuhst v Foley, 45 N.Y.2d 441, 445; Matter of Cowan v Kern, 41 N.Y.2d 591, 599; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 N.Y.2d 309, 315). We note, in particular, that the evidence supports the conclusion that any economic hardship suffered by the petitioner, a builder, was self-created as part of a conscious decision. We also note that the case of Fulling v Palumbo (supra) relied upon by the respondents in assessing whether the petitioner had demonstrated significant economic {*664} injury, has since been overruled, and that the current standard for demonstrating such economic injury is, from the point of view of the landowner, more stringent (see, Matter of Doyle v Amster, supra, at 596). We conclude that the determination under review was properly confirmed, both pursuant to the five criteria outlined in the Town Law 267-b (3) (b) and pursuant to the previously existing case law which had evolved as a result of efforts to define the "practical difficulty" standard (see, e.g., Matter of Doyle v Amster, supra, at 595; Matter of Fuhst v Foley, supra; Conley v Town of Brookhaven Zoning Bd. of Appeals, supra). At least in respect to their application to the facts of this particular case, we discern no appreciable difference between the newly enacted standard (Town Law 267-b [3] [b]) and the familiar "practical difficulty" standard. We also conclude that the petitioner failed to prove that the application to his property of the local zoning ordinance under review constituted an unconstitutional "taking" of his property without compensation (see, Matter of Kransteuber v Scheyer, 176 A.D.2d 724, affd 80 N.Y.2d 783). Accordingly, the judgment appealed from is affirmed. (c) 1994 By The Michie Company, A Division of The Mead Corporation In the Matter of Nancy Carlucci, petitioner, Board of Zoning Appeals for Town of Philipstown, respondent. No. SUPREME COURT OF NEW YORK, 1994 N.Y. June 93-02062 APPELLATE DIVISION, SECOND DEPARTMENT App. Div. LEXIS 6397 20, 1994, Decided COUNSEL Meiselman, Farber, Packman & Eberz, P.C., (Myra I. Packman and Mary Beth Kilgannon of petitioner. Mt. Kisco, N.Y. counsel), for Richard I. Goldsand, Brewster, N.Y., for respondent. JUDGES WILLIAM C. THOMPSON, J.P., ALBERT M. ROSENBLATT, SONDRA MILLER, DAVID S. RITTER, JJ. OPINION DECISION & JUDGMENT Proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Town of Philipstown filed July 18, 1992, which, after a hearing, denied the petitioner's request for an area variance. ADJUDGED that the determination is confirmed and the' proceeding is dismissed on the merits, without costs or disbursements. Initially, we note that the Supreme Court should have disposed of the proceeding on the merits instead of transferring it to this court (see, Town Law 267[7]). However, this court will decide the case on the merits in the interest of judicial economy (see, Matter of Cucci v Zoning Bd. of Appeals, 154 A.D.2d 372, 545 N.Y.S.2d 850). The decision of the Board of Zoning Appeals was supported by substantial evidence and was not illegal, arbitrary, or an abuse of discretion (see, e.g., Matter of Fuhst v Foley, 45 N.Y.2d 441, 410 N.Y.S.2d 56, 382 N.E.2d 756; Matter of Kattke v Village of Freeport, A.D.2d [2d Dept., Jan. 30, 1994]; Matter of (c) 1994 By The Michie Company, A Division of The Mead Corporation Scarsdale Ave. Equities Assocs., Ltd. v Board of Appeals of the Vil. of Scarsdale, A.D.2d [2d Dept., Dec. 20, 1993]). The petitioner failed to meet her burden that strict compliance with the zoning law would cause "practical difficulties". The record clearly indicates that the petitioner's difficulty in complying with the zoning regulation was self-created. While self-creation does not in and of itself justify a denial of an area variance application, this factor is a significant element militating against the application (see, Matter of Slakoff v Hitchcock, 194 A.D.2d 613, 599 N.Y.S.2d 63; Matter of Nammack v Krucklin, 149 A.D.2d 596, 540 N.Y.S.2d 277). After finding that the hardship was self-created, the Board of Zoning Appeals had no obligation to weigh the expense of compliance in the petitioner's favor (see, Matter of Slakoff v Hitchcock, supra, at 614; Matter of Nammack v Krucklin, supra, at 596; Matter of CDK Rest. v Krucklin, 118 A.D.2d 851, 500 N.Y.S.2d 339). Further, this court has previously upheld the denial of an area variance where, as here, the zoning violation was self-created due to a builder's error (see, e.g., Matter of Slakoff v Hitchcock, supra; Matter of Fendelman v Zoning Bd. of Appeals of the Vil. of Scarsdale, 178 A.D.2d 478, 577 N.Y.S.2d 138; Matter of Nammack v Krucklin, supra; Matter of J.T.T. Contrs. v Ward, 148 A.D.2d 537, 538 N.Y.S.2d 869). In light of our determination confirming the determination and dismissing the petition, we need not reach the petitioner's remaining contentions. THOMPSON, J.P., ROSENBLATT, MILLER and RITTER, JJ., concur. (c) 1994 By The Michie Company, A Division of The Mead Corporation In the Matter of John Sorrenti, Appellant, Harry Siegel et al., Constituting the Board of Zoning and Appeals of the Town of North Hempstead, Respondents [NO NUMBER IN ORIGINAL] SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 525 N.Y.S.2d 667, 138 A.D.2d 382 March 7, 1988 JUDGES Thompson, J. P., Rubin, Eiber and Sullivan, JJ., concur. OPINION {*382} In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Zoning and Appeals of the Town of North Hempstead, dated October 2, 1985, which denied the petitioner's application for an area variance to permit the maintenance of an existing carport erected in violation of the side-yard setback and aggregate side-yard setback requirements of the Code of the Town of North Hempstead, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Harwood, J.), dated March 13, 1986, which dismissed the proceeding. {*383} Ordered that the judgment is affirmed, with costs. The petitioner is the owner of real property situated in a residence B zoning district in the Town of North Hempstead which is presently improved with a one-family residence containing an attached two-car garage. Shortly after the petitioner purchased the premises, he erected, in 1965, without a building permit a one-story carport next to the two-car attached garage. The carport did not meet the requirements of the Code of the Town of North Hempstead providing for a side-yard setback of 7 feet and an aggregate side-yard setback of 15 feet (Code of Town of North Hempstead 70-41 IA]). The side-yard setback and aggregate side-yard setback of the petitioner's carport are 1 foot and 11 feet, respectively. In July 1985 the petitioner received a notice of violation from the Building Department of the Town of North Hempstead. The petitioner applied to the Building Department for a permit to maintain the existing carport but that application was denied because of the side-yard setback and aggregate side-yard setback (c) 1994 By The Michie Company, A Division of The Mead Corporation violations. Thereafter, the petitioner applied to the Board of Zoning and Appeals of the Town of North Hempstead for an area variance. The Board of Zoning and Appeals denied the petitioner's application, finding that the granting of the variance would produce a substantial change in the character of the neighborhood and cause a detriment to adjoining property owners, and, further, the petitioner failed to demonstrate any practical difficulties would result from the denial of his application for a variance. The petitioner then commenced the instant CPLR article 78 proceeding to review the denial of his application by the Board of Zoning and Appeals. Special Term dismissed the proceeding on the ground that the determination of the Board of Zoning and Appeals was supported by substantial evidence. We affirm. It is a well-established principle of law that local zoning boards possess discretionary authority to consider applications for variances and the judicial function is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion (see, e.g., Matter of Fuhst v Foley, 45 N.Y.2d 441, 444; Matter o~ Cowan v Kern, 41 N.Y.2d 591, 599, rearg denied 42 N.Y.2d 910; Human Dev. Servs. v Zoning Bd. of Appeals, 110 A.D.2d 135, affd 67 N.Y.2d 702). If the zoning board's determination has a rational basis and is supported by substantial evidence it will ordinarily be sustained by the courts (Matter of Fuhst v Foley, supra; Human {*384} Dev. Servs. v Zoning Bd. of Appeals, supra, at 138). The applicant for an area variance bears the burden of establishing that strict compliance with the zoning law will cause "practical difficulties" (Matter of Fuhst v Foley, supra, at 445; Human Dev. Servs. v Zoning Bd. of Appeals, supra). In the matter before us, we find that the petitioner has failed to carry his burden of establishing that the denial of his application for a variance would result in practical difficulties. The evidence presented by the petitioner before the Board of Zoning and Appeals failed to demonstrate that he would suffer significant economic injury should his application for a variance be denied (see, Matter of Cowan v Kern, supra, at 596-597). Furthermore, the record fails to show that "as a practical matter [the petitioner] cannot utilize his property or a structure located thereon 'without coming into conflict with certain of the restrictions of the [zoning] ordinance'" (Matter of Fuhst v Foley, supra, at 445, quoting from 3 Rathkopf, Law of Zoning and Planning, ch 45, 1 [4th ed]). Lastly, we conclude that any "difficulty" alleged by the petitioner was self-created. Thus, it cannot be said that the Board of Zoning and Appeals of the Town of North Hempstead abused its discretion when it denied the petitioner's application for substantial side-yard setback and aggregate side-yard setback variances. Special Term properly held that the determination of the Board of Zoning and Appeals was supported by substantial evidence in the (c) 1994 By The Michie Company, A Division of The Mead Corporation record. (c) 1994 By The Michie Company, A Division of The Mead Corporation In the Matter of John Sorrenti, Appellant, Harry Siegel, Chairman, et al., constituting the Board of Zoning and Appeals of the Town of North Hempstead, Respondents No. 1114 COURT OF APPEALS OF NEW YORK 534 N.E.2d 328, 73 N.Y.2d 702 December 1, 1988 OPINION Motion for leave to appeal denied with twenty dollars costs and necessary reproduction disbursements. (c) 1994 By The Michie Company, A Division of The Mead Corporation TOWN OF SOUTHOLD ZONING BOARD OF APPEALS In The Matter Of The Multiple Applications of William F. Gasser and the American Armored Foundation, Inc., For Variances from Article IX 100-91 C(1), Article XXIII ]00-231A and Article IX 100-93 MEMORANDUM OF DIANE AND FRANK AP~4IRATI IN OPPOSITION TO THE APPLICATIONS FOR THREE VARIANCES FROM THE ZONING CODE STATEMENT OF FACTS The applicant, William F. Gasser purchased the parcel for which variances are now sought on September 3, 1981 from George L. Penny, Inc. (See Exhibit 1). In November, 1980, prior to the actual purchase, Mr. Gasser together with a real estate agent sought guidance as to the use of the property from the Zoning Board of Appeals. According to the minutes of the informal discussion, Mr. Gasser stated he had a hobby of armored vehicles and he was interested in converting the existing ~torage building on the property into a "private museum".~ He was advised that the Board could not render an opinion without an actual application. (See Exhibit 2). 1 We ask the Board to note that Mr. Gasser's original plans infer that the armored vehicles would be stored inside the existing building, A certificate of occupancy issued to G. L. Penny, Inc. on August 20, 1981, undoubtedly a requirement of the sale to Mr. Gasser, indicates that building on the property is located on that portion of the property zoned "C". (See Exhibit 3). That portion of the parcel which was previously zoned "C" was rezoned "LI" and the portion fronting on the County Road 48 was rezoned "RO". It is fair to assume, that since Mr. Gasser was assisted by a real estate agent and purchased from Mr. George Penny, a party very familiar with Southold Town's zoning laws, that he was himself aware in 1981 that the use to which he intended to put the property in 1981 was not a permitted use under the existing code. This assumption is supported by Mr. Gasser's request to meet with the Zoning Board Authority a Board charged with authority to grant variances from the zoning code. At some point after purchase, the applicant began placing armored vehicles at the site and designated the parcel as a "Tank Museum". Signs to that effect have been erected on the two major roadways leading to Mattituck. At no time since the purchase of the parcel in 1981 was the use for which the parcel has and is being used been a permitted use under the zoning code of Southold Town. Thus Mr. Gasser has been knowingly operating in violation of Town law for 13 years. In the Fall of 1988, Mr. Gasser installed a "gun tower" at the extreme front end of that portion of the parcel which fronts on 2 Love Lane. A complaint was made to the Building Department and on Septer~er 20, 1988 Mr. Gasser was informed by letter that he was in violation of the zoning code and that site plan approval was required. (See Exhibit 4). Mr. Gasser's attorney responded by letter to the Planning Board requesting advice as to whether the tower located on a parcel being used for an improper use required site plan approval. (See Exhibit 5).2 A report by the Building Inspector to the Planning Department dated January 9, 1989 gives a full history of the site and includes the following: "The Building Department has been receiving complaints concerning the museum regarding parking and trespassing on adjoining property... "When...investigated...found violations to the Code .... "The first is that the tower was installed without first obtaining a Building Permit... "The second is that part of the property on County Road 48 is zoned 'A' Residential/Agricultural and is being used in a business capacity whereby equipment i~ being displayed .... "The third is that site planning or approval was never obtained to have a museum. On Nov. 20, 1980 Mr. Gasser had an informal discussion with the Z.B.A. but never submitted a formal application." (See Exhibit 6).3 2 We ask the Board to note that the Planning Board was advised that 15 parking spaces are available on site at all times contrary to the justification for a variance herein which states that Planning Board parking requirements mandate a variance in order to have remaining space for the previously installed illegal tower, 3 We ask the Board to note that Ordinance Inspector Wieczork stated ~I did not issue an order to remedy the violations because I wanted to give the museum an opportunity to follow the normal process to clear up the violations". This is the same rationale used by Enforcement Officer Gary Fish to my recent demands that violations be issued some 5 years after the first ~'time to remedy" rationale was first enunciated. 3 On February 17, 1989 the Planning Board determined that a site plan was necessary and the Building Inspector was asked to so inform the applicant and, in fact, Mr. Gasser's attorney was copied on the internal memo. (See Exhibit 7). There appears to be a two year gap in the files of all Town departments with regard to this matter and from 1989 to 1991 Mr. Gasser was allowed to continue the illegal and improper use without disturbance, without fine and without being required to comply with the Town's code. However, in February, 1991 Mr. Gasser was asked to submit an application for a site plan or the matter would be turned over to the Ordinance Inspector (See Exhibit 8). Mr. Gasser's new attorneys requested a waiver based on the fact that the operation of the site had not changed in over ten years. The attorney erroneously states that "until inception of the present issue...there has never been a problem in connection with the use or the occupahcy of the premises". (See Exhibit 9) This statement neglects to add that the use had been and was improper for the entire ten year period. Finally, in March, 1991 Mr. Gasser's attorneys were advised by the Planning Board that an application was expected within 30 days or the matter would be turned over to the Ordinance Inspector for action. The Planning Board corrects the erroneous statement in applicant's attorney's letter (Exhibit 9) about there being no prior problem by calling applicant's 4 attorneys' attention tp a letter of September 20, 1988 requesting compliance with the site plan and variance requirements. That letter calls to Mr. Gasser's attorneys' attention the fact that despite improper operation for ten years Mr. Gasser had been informed in the past that site plan approval was required. (See Exhibit 10). However, lack of site plan approval was and is but one of the many irregularities associated with this site. In August, 1991 Mr. Gasser was informed by the Planning Board that his amended site plans had been reviewed and that the Board had inspected the property. He was also advised that the Planning Board could not proceed until Mr. Gasser obtained a variance from the Zoning Board of Appeals for the placement of the accessory structure (the gun tower) as it was in violation of the set back requirements. (See Exhibit 11). This was but one of the improprieties of this site and it is one of the variances sought at this time some 6 years after the tower was installed and at least 5 years after the applicant was advised that it required a variance. At that time, August, 1991, Mr. Gasser did not seek disapproval from the Building Inspector as suggested by the Planning Department. It was not until some four months later in December 1991 that applicant sought and received a notice of disapproval (Exhibit 12) and he did not file his application with the ZBA until February, 1992 (Exhibit 13) some six months after he was advised to 5 do so by the Planning Board.~ On February 25, 1992 Mr. Gasser's application to the Zoning Board of Appeals was returned to his attorney because it was incomplete (See Exhibit 14). Particular attention should be given to item (b) in the ZBA's letter of return which reads: "copy of the Certificate of Preexisting Use and supporting documentation making reference and certifying the 'non-conforming use' under which this application is requested..." Apparently, applicant had claimed to be a pre-existing non- conforming use. The subject premises was never a non conforming use, as the "tank museum" came into existence only after Mr. Gasser purchased the property and it was not a permitted use under the prior zoning code when it was initiated. (See Exhibit 2 and the notes regarding the informal conference had by Mr. Gasser and the ZBA prior to his purchase of the property in 1980). The application for a variance was never renewed and site plan approval was never pursued. Rather, in May, 1992 Mr. Gasser applied to the Town Board for a zone change on the subject property. His application was mandated by a letter from the then Town Attorney to his attorneys wherein Mr. Arnoff requested an ~ We call this Boards attention to applicant's "hardship" claim in ~1 of the application wherein he advises that moving the Tower would hinder movement of the displays. He neglects to advise that the outside display is illegal. The instant application, wherein the Tower has been moved pursuant to Town Board order now is claimed to be a hardship because the Planning Board is requiring parking spaces. The excuses are ever changing while applicant continues to operate and claim pre-existence as a rationale for the relief requested despite the fact that the pre-existing conditions were self-imposed and illegal. immediate resolution to the sites' problems because "I cannot sit idly by and allow a known illegal use to continue within the Town". (See Exhibit 15). The applicant's property received a conditional zone change from the Town Board on September 22, 1993 (Exhibit 16) which decision specifically states at item ~5 that: "The change of zone shall not in any way be considered at[s] the granting of any variance necessary to the proposed use." The above comment by the Town Board was apparently made because of the prolonged, improper use of the site coupled with the applicant's history of a total disregard for the Town's zoning code. In fact, the application for a zone change was made because the then Town Attorney said "enough is enough" as a result of stalling tactics of this (Exhibit 15). In April of this year, for relief from Article XIX, applicant which had gone on much too the applicant applied to this Board Sec. 100-91(c) and Article XVIII. Sec. 100-81-C (2a) in that the existing signs and fencing did not meet the requirements of the code. _ The undersigned on behalf of her clients, to the request for a variance. A copy of the memorandum in opposition together with the exhibits is attached hereto as Exhibit 17. the long strenuously objected 7 The Board will note that Point I of that memorandum was devoted to the multiple violations present and that applicant's submission of but one application should have been considered a deliberate effort to minimize the extent of the action required by segmenting the request for relief. If the Board will recall, it was stated by the applicant at that hearing and confirmed by a staff member who had checked with the Building Department, that no other violations existed at the site. That exchange prompted my letter of April 7, 1994 to the Town Attorney attached hereto as Exhibit 18. This Board on April 7, 1994 requested the Building Inspector to provide confirmation that other violations existed or did not exist at the site (See Exhibit 19). In addition to the above, the undersigned requested the Planning Department to take action demanding compliance with the code before site plan approval was granted (Exhibit 20). On April 26, 1994 Building Inspector Gary Fish responded to this Board's April 7, 1994 request (Exhibit 21) regarding the existence or non-existence of any outstanding issues. That memo ignores the tower height and location question and determines that outside storage is-permitted. As is obvious from the instant applications those findings were ultimately found to be erroneous. On May 4, 1994, the undersigned again communicated with this Board with regard to Mr. Fish's April 26, 1994 memo (Exhibit 22). That letter continued our efforts to have the violations present at the site accurately set forth and remedied by 8 some action of either the Town or the applicant. This Board ultimately granted the original relief requested by this applicant regarding signs and fences on May 4, 1994 (Exhibit 23) on condition that the applicants comply with other requirements as follows: (a) final approval to be obtained from the Southold Town Planning Board under site plan regulations; (b) approval does not expire from the N.Y.S. Department of Transportation pertaining to Sections 88 and 52 of the Highway Law; (c) a fence permit to be obtained from the Southotd Town Building Department; (d) referral in accordance with the Administrative Code to the Suffolk County Planning Commission - this project is located within 500 feet of a County Highway; (e) this determination shall not preclude application by the owners or an aggrieved party for different relief, filed in accordance with the requirements of New York Town Law, Section 267; (f) compliance with all other sign and zoning regulations. Thus, this applicant's signs and fences are still in violation of the code since the applicant did not file for the additional relief as required by subsection (f) of the May 5th decision until August of this year which application is the subject of this brief. On May 16, 1994 the Planning Board advised this applicant that site plan approval (another condition of this Board's variance of May 4, 1994) could not be granted until the applicant met certain 9 criteria (Exhibit 24). On July t, 1994 I confirmed prior conversations with the Building Inspector wherein he had advised he knew of violations but would give the applicant a reasonable time to comply (Exhibit 25).r' Fourteen years, appears to be somewhat excessive as a reasonable time, but when the applicant did not comply the Building Inspector issued not a summons but a Notice of Disapproval on July 12, 1994 (Exhibit 26) some 14 years after many of the violations had existed. It should be noted, that the history of this site clearly indicates that this applicant ignores the code requirements and never files for relief until the Town literally orders that an application be submitted. The applicant has now filed three separate applications, to which we have already objected (Exhibit 27) in a further attempt minimize the sought relief by segmenting his requests. to POINT I AN APPLICANT FOR A AREA VARIANCE MUST SHOW PRACTICAL DIFFICULTIES The Court of Appeals of this state has termed the standard for granting an area variance as "practica~ difficulties" Fuhst v. Foley (1978) 410 N.Y.S. 2d 56, 45 N.Y. 2d 441 The court said that generally practical difficulty meant that a "Petitioner must show that as a practical matter he cannot utilize his property or ~ See Exhibit 8 where similar leniency was given in February 1991 and the Town's other residents are still waiting for compliance. 10 structure located thereon ~without coming into conflict with certain of the [zoning] ordinance'." The legislature in enacting Town Law 267-b has attempted to codify that standard. However, in looking for the exact meaning of the statute one must still review the case law to fully appreciate the "practical difficulty" standard and an applicant must still meet the "practical difficulty" test despite the codification of Town Law 267-b. In Sasso v. Osgood, et al,-N.Y.S. 2d-(4th Dept.July 15, 1994),motion to appeal den.-N.Y.S.-2d(9/30/94) the court stated that the ZBA decision under review was: "based in part upon the erroneous belief that Town Law 267-b provides a more lenient standard for the granting of an area variance because the term 'practical difficulty' was removed from the statutory language. There is no appreciable difference between the standard set forth in the newly enacted Town Law 267-b (3) (b) and the familiar 'practical difficulty' standard and an applicant still must demonstrate that strict compliance with the zoning ordinance will result in practical difficulties (see, O'Keefe v. Donovan, 199 A.D. 2d 681; Matter of Vilardi v. Roth, 192 A.D. 2d 662).,,~ The initial factor involved in analyzing "practical difficulty" is whether the applicant will suffer a financial loss without the relief sought in the variance. However, even if an owner establishes financial loss, for which this applicant has made no offer of proof, the municipality need only show the legitimate purpose of the regulation to overcomethe applicant's proof. Cowan 6 The Appellate Division revised a lower court decision which upheld a ZBA determination which granted a variance because the court concluded that "the record does not support the ZBA's findings that absent a variance the subject lot may never be used and will be rendered valueless .... 11 v. Kern, (1977) 41 N.Y. 2d 591. In the Cowan case, the application for a variance was denied by the ZBA, sustained by the Supreme Court, reversed by the Appellate Division and ultimately reinstated by the Court of Appeals. The court stated that before a zoning authority is required to explain why public health and welfare requires adherence to the zoning standard, the petition must come forward with proof of significant economic hardship. (citing Matter of National Merritt v. Weist, 41 N.Y. 2d 438). The focus, the court continued should be upon the value of the parcel as presently zoned not on its value with a variance. The court stated that in that case in view of the fact it was purchased at a tax sale, the petitioner is certainly chargeable with knowledge of the interdections of the zoning ordinance which limited development. The loss, if it existed was thus self-inflicted. The court again reiterated that the standard to be applied after first determining if there is an economic hardship is practical difficulties. The applicant involved herein has submitted no proof of economic hardship and has thus not cleared the first necessary hurdle before the standard of practica~ difficulites can be addressed. In determining if the standard has been met the inquiry is not what applicant reaps from the use but rather the value of the parcel as zoned. Even proof that the variance will result in a more profitable use or improve the efficiency of the owner's 12 business is not a sufficient basis to grant the variance. Troiano v. Volz (Sup. Ct./Suf.Co 1959) 189 N.Y.S. 2d 451. The applicant herein has chosen to operate his enterprise on a parcel now zoned HB.7 It is probably accurate to state that another business at the site would be more profitable but the variances requested are not for another more profitable enterprise but rather to continue an already existing deliberate and consciously instituted illegal enterprise. The applicant has not submitted any proof that compliance with the zoning code will cause economic hardship. The record is and has through all of the applicants various appearances before various Boards been devoid of financial information. The very basic question to be answered in applying the practical difficulties test is whether the alleged hardship, loss or injury applicant claims, is due to the application of the zoning regulation or to the owners own conduct. Overhill Bldg. Co. v. Delany, (1971) 28 N.Y. 2d 449. The Board on this question must exercise its discretion and ultimately the courts will determine if that decision was an abuse of discretion. National Merritt, Inc. v. Weist, (1977) 41 N.Y. 2d 438. This Board must base its decision on substantial evidence, (see: National Merritt, supra) and this applicant has submitted no evidence to support the granting of a ~ He formerly operated with an LI and R zoning for segments of the parcel both of which denied the use to which the property was put. 13 variance. Self-serving statements about a hardship imposed when the hardship was created by the applicant's own acts are not substantial evidence. In a recent Second Department case, the court found that denial of an area variance for expansion of a home was not supported by substantial evidence where the owners had failed to show that they could not utilize the structure without coming into conflict with the zoning ordinance; where the relief was sought merely to accommodate a chosen aesthetic design; and finally where the applicant knew the zoning restrictions when the property was purchased. Levine v. Korman (2d Dept. 1992), 586 N.Y.S. 2d 620. In Vilardi v. Roth, supra, where a builder was denied an area variance, the court specifically stated that the evidence supported the ZBA's conclusion that any hardship suffered by the petition was self-created as part of a conscious decision. The builder had purchased a substandard lot and later sought an area variance and other set back variances in order to build upon the lot. The builder claimed an economic hardship if the variances were denied. The court in sustaining the ZBA's denial found the practical difficulty standard had not been met. More importantly, that petitioner, similar to the applicant herein, made conscious decisions which he knew violated the zoning code and thereafter sought relief from the code. This applicant can move the tanks and guns into the existing building or build another building thus enclosing the weapons and 14 eliminating the need for the fencing. The fencing, the tanks and certainly the gun tower may be aesthetically pleasing to the applicant but the remainder of Southold Town should not be required to view applicant's choices of garden statuary. Finally, this applicant knew in 1981, in 1982, in 1983, in 1984, in 1985, in 1986, in 1987, in 1988, in 1989, in 1990, in 1991, in 1992, in 1993 and now in 1994 that this property had restrictions which he was violating by his chosen enterprise. Applicant's assertions that there will be no change in the neighborhood because the so-called museum has existed since 1981 is an affront to our sense of justice. In Soirenti v. Siegel (2d Dept. 1988) 525 N.Y.S. 2d 667, opp. den. 537 N.Y.S. 2d 490 the court sustained the denial of an area variance to permit maintenance of an existing carport erected in violation of set-back requirements where the Board found a substantial change in the character of the neighborhood would result and cause detriment to adjoining landowners. The court sustained the Board's findings that the owner had failed to show any practical difficulties especially since any difficulty allege~ was self-created. Opponents operate a retail gourmet food business. On lovely Sunday afternoons in the summer, patrons may purchase a basket brunch and sit under the trees on the green grass and enjoy Southold's peace and quiet. This picture is marred if the patrons turn south and see through and above the barbed wire fence the guns 15 and weapons of this self-proclaimed museum. The quiet is often broken by tanks that are moved from one illegal outside location to another or when repairs on this equipment are made. The pastoral setting for which Southold wishes to be known is jarred by the noise of World War II machinery. Point II THE REQUIREMENTS OF TOWN LAW 267-b 3 HAVE NOT AND CANNOT BE MET BY THIS APPLICANT The newly enacted Town Law 267 b codified the case law with regard to the criteria to be met by an applicant for an area variance. Subsection 3 states: "(a) The zoning board of appeals shall have the power, upon an appeal from a decision or determination of the administrative official charged with enforcement of such ordinance or local law, to grant area variances as defined herein. (b) In making its determination, the zoning board of appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the board shall also c6nsider: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting or the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whethe~ the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance. (c) The board of appeals, in the granting of area variances, shall grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect 16 the character of the neighborhood and the health, safety and welfare of the community. The above statutory provision (subsection (c)) cautions Zoning Boards that if an applicant has met the criteria of subsection (b) and the variance is granted, the Board shall (a command word in the law) grant the minimum variance deemed necessary and adequate in order to preserve the character of the neighborhood and the health, safety and welfare of the community. If we examine subsection (b) and the case law that defines the criteria set forth, we find that this applicant cannot meet the level of proof required to grant the requested variances. Subsection (b)(1) asks the Board to determine if the character of the neighborhood will be altered or there will be a detriment to the nearby properties. Subsection (b) (2) asks the Board to determine whether the benefit sought can be achieved by some other feasible method. Subsection (b) (3) asks the Board to determine if the requested relief is substantial. Subsection (b) (4) asks the Board to determine whether the proposed variance will have an adverse effect on the physical or environmental conditions in the neighborhood. 17 Subsection (b)(5) asks the Board to determine if the hardship was self-created which consideration shall be relevant to the decision. This applicant asks that it be allowed to place an 18' tower, from which a guard with a gun once stood, (and could still stand) closer than 5' to the property line. This tower like everything else at the site was placed at the site without the requisite approvals. After years of complaints the Town Board finally ordered it moved at least 100' from the serene tree lined Love Lane entrance (See ~1 of Exhibit 16). The applicant advises in his application (Exhibit 28) that the set back requirements must be waived because the property is only 50' wide and the planning board is requiring every available foot for parking. If this applicant had followed proper procedures, site plan approval would have been sought some 14 years ago and the Tower undoubtedly would never have been obtained because there would have been no available space for it. The applicant further confounds us with his illogic by advising that all other properties are not as narrow and therefore, not as constrained and since he has had the tower in existence for 10 years it will not alter the character of the neighborhood. Applicant is thus advising this Board that he placed the tower on property he knew was 50' wide without approval 10 years ago, moved it when ordered but still not to a location that is legal and because he is finally seeking site plan approval that should have 18 been obtained in 1981, this Board must grant him a variance from his self-inflicted hardship. The applicant concludes that the tower will not alter the character of the neighborhood because it has existed for 10 years. My clients have been complaining about the Tower for at least 6 years of its illegal existence because it does alter the character of the neighborhood. Love Lane is a serene tree lined street with retail stores in a very quiet rural setting. How could a gun tower not change the character of that neighborhood? Applicant attempts to use his flagrant abuse of the law as a means to justify the grant of relief from the law. In Carlucci v. Board of Zoning Appeals, -A.D.-(2d Dept. June 20, 1994), the ZBA decision denying petitioner's application for an area variance was upheld. The court noted that the record clearly indicated that the petitioner's difficulty in complying with the zoning regulation was self-created. The court stated that that factor was "a significant element mitigating against the application". The applicant likewise tells this Board that a chain link fence with barbed wire will not change t. he character of the neighborhood because it has existed for 13 years (Exhibit 29). It exists, applicant states, because he must meet military regulations for property displaying war weaponry. correct, that there were no height requirements in installed the If applicant is 1981 when he fence there were certainly regulations that 19 prohibited him from putting the armored vehicles at the site. The fence therefore, according to applicant, will not change the character of the neighborhood. Again applicant is advising that because he violated the code so long ago he has already improperly changed the character of the neighborhood so he must be granted the relief requested because he is not changing it now. The final erroneous statement in the application to this Board (Exhibit 30) is that the open storage of guns, tanks and other obsolete weaponry will not change the character of the neighborhood because it has existed for 13 years. This self designated "museum" which applicant has created, was not permitted when he purchased the property in 1981. It was not permitted when the zoning law was changed and it is not permitted under the zone change which applicant acquired in 1993. Applicant has poisoned the water but tells us we should drink it anyway because the poison has been in place for so long it's really just water and it will not hurt us. Subsections (2) and (3) require that the Board determine whether the benefit sought can be achieved in some other feasible manner and whether the relief requested is substantial. With regard to the Tower, the applicant can move it or remove it since it never had a right to be placed at the site. Applicant's use of the requirements of the Planning Board (parking spaces) as the basis for seeking relief from the Zoning Board for what is a self-created hardship stretches the limits of logic. 20 With regard to the fencing, the applicant has failed to advise this Board that the Planning Board has also advised him (See Exhibit 24) that the fence has an illegal electrical conduit on top. The fence now also has a security camera mounted on top of a section adjacent to opponents property. Will the Board face yet another application for a variance some year or two from now when applicant finally gets around to complying and will that application attempt justification on the basis of pre-existence? The Board should note that applicant has not supplied copies of the supposedly requisite Department of Defense regulations regarding the fence. How is the Board to determine whether or not some other fencing would suffice under the military regulations? Assuming, however, that the military requirements exist, those requirements do not pre-empt this Board's jurisdiction over this matter. Applicant established an illegal use and eventually obtained a conditional zone change to legitimize the use. However, applicant now claims he must have action by this Board to legitimize the illegally installed fencing which surrounds the illegal outside storage of armored vehicles all of which is being overlooked by an illegally installed tower. There is another avenue available to cure applicant's problems. Place the guns and tanks inside a building, thus finally complying with the law and the fence will no longer be required. I am sure military regulations will permit the locked indoor storage of the weaponry. 21 With regard_~_~h~.r~.~t_~9~ermit outside storage, this applicant appears to believe that the Town and its residents must submit to his preference for outside storage. The code clearly rquires that the displayed items be housed in an enclosed building. In Matter of Levine v. Korman, supra, a ZBA denial of an area variance was sustained because the request was not supported by substantial evidence. The applicant had not met the practical difficulty test and in fact the court noted that "the requested variance...was sought merely to accommodate a chosen aesthetic design, which will not support a finding of practical difficulties." The court continued, "Moreover, the petitioners are presumed to have had knowledge at the time they purchased the property of the applicable zoning restrictions and, therefore, under the circumstances of this case any hardship was self- created." Mr. Gasser purchased from a former Town Board mer~ber and most certainly knew or should have known of the Town's zoning restrictions otherwise why did he seek a conference with the ZBA (See Exhibit 2). It was a deliberate conscious plan to establish a '~museum" with outside storage of armored weapons. The design and layout please Mr. Gasser as does the illegal use. However, as in the Levine case, these self-created hardships do not constitute practical difficulty as is required. The applicant must enclose the displayed items, he must move or remove the tower and he must lower the fence and remove the 22 electrial conduit and camera because each item was the result of a deliberate act in violation of the code. In Matter of Grace v. Palermo, 582N.Y.S.2d.284 (2d Dept. 1992) an applicant was denied a variance because the garage he sought to legitimize was built without a building permit or appropriate variance. The court found that the financial hardship associated with relocating the garage or taking it down did not in and of itself entitle the applicant to an area variance. CONCLUSION: This applicant has managed to install an illegal use and sustain it since 1981. The Town has done almost nothing to enforce its own laws. This applicant has never received a summons and to date has been granted any relief he requested despite his continued illegal activities that were most certinly the result of a deliberate plant with full knowledge that the plan violated the zoning code. It is time this Board enforced the law as applicant has not offered substantial proof to warrant the relief requested. He has not met the requirements of Town Law 267-b and his applicants must be denied in their entirety. A conditional approval whereby applicant must perform certain items in order to legitimize this site is merely carte blance for this applicant to continue as he has since 1981 considering his track record of compliance with municipal directives. 23 memo2.doc 24 ZONING BOARD OF APPEALS In The Matter Of The Multiple Applications of William F. Gasser and the ~Lmerican Armored Foundation, Inc., For Variances from Article IX 100-91 C(1), Article XXIII 100-231A and Article IX 100-93 SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO THE APPLICATIONS FOR THREE VARIANCES FROM THE ZONING CODE STATENENT OF FACTS The Board is referred to statements of counsel at the last hearing of this matter on January 4, 1995 wherein the applicant took objection to the use of the term "gun tower" to identify the illegally located tower at the site. We call your attention to Exhibit 5 of our prior memorandum. That exhibit, a copy of applicant's first attorney's letter of October 24, 1988 clearly states, as I stated at the prior hearing, that "This tower was used by the Military during World War II as a gun implacement-lookout tower when the Military used a portion of the frontage along Long Island Sound, North of the Village of Mattituck as a gunnery range" . I ask the Board to note from that letter from John P. A. Marcin that he advises the Planning Department that fifteen parking spaces are available on site at all times. The applicant is now claiming that the parking requirements of the Planning Board in his most recent attempt to obtain site plan approval is the basis for his need for a variance with regard to the gun tower. In the original memorandum in opposition to these applications submitted to this Board, we called to the Board's attention that this applicant had at one time claimed pre-existing non-conforming use for this site (See Exhibits 12 -14 attached to that memorandum). Attached hereto (Exhibit 29) is a copy of this Board's memorandum of March 27, 1992 which clearly notes that there is no record of the existence of the museum prior to 1957. In addition, attached hereto is a memorandum from Valerie Scopaz, Town Planner dated August 28, 1991 (Exhibit 30) which confirms that the use was never authorized under the code, did not pre-exist the code, and that the site was therefore in violation of the code on that count and with regard to the tower that is the subject of one of the applicant's current requests for relief. I call these matters to the Board's attention to further support our contention that this applicant has changed and rearranged his claims for this site with each new application and each new Board before whom he appears. These exhibits together with those previously submitted to this Board clearly indicate that this applicant has had legal representation since 1988, that both he and his attorneys knew there were illegal structures and/or 2 2 activities at the site and nothing except evasive tactics have been used to avoid a final determination. These exhibits further support our contention that all of the problems with this site are self-imposed and that no relief should be possible for an applicant who so flagrantly violates the law. Referring to Point I of our initial brief objecting to this Board's negative SEQRA determination, attached hereto is a memorandum from the Chairman of the Planning Board dated October 6, 1992 (Exhibit 31) with regard to the environmental consultant's recommendations at the time this applicant sought a zone change. The Board will note that the Planning Board believed that the review was too narrowly focused on the subject property alone. The review should have incorporated a wider area, namely the surrounding business district, because the proposed change of zone will have an effect on that area. The same can be said of the requested variances now before this Board. This Board has reviewed the application in the context of the site itself and has requested mitigation. The Board has not however focused on the effect a tank museum has and will continue to have on the surrounding properties. I refer the Board to our prior memo which details our objections 3 3 which focus on the full impact of the site and not just within the confines of the applicant's illegal fencing. Dated: Greenport, New York February 1, 1995 Respectfully submitted, ONGIONI & BORRELLI Attorneys for Frank and Diane Ammirati 403 Front Street P. O. Box 562 Greenport, New York 11944 516-477-2048 4 4 Exhibit 29 APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigoni$, Jr. Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTT L. HARRIS Supervisqr Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516} 765-1823 Telephone (516) 765-1800 TO: FROM: DATE: SUBJECT: INTER-DEPARTMENTAL MEMORANDUM Harvey A. Arnoff, Town Attorney Office of the Board of Appeals March 27, 1992 SOUTHOLD JOWN PLANHING BOARD Incomplete Application - William Gasser Planning Board Communications Neighbor's Written Complaint to Planning Board We have received correspondence from Daniel C. Ross, attorney for William Gasser concerning Mr. GaSser's property at Love Lane, Mattituck. It appears that the American Armoured Foundation, Inc. may have a lease for a museum at Mr. Gasser's site for a federally charted military tank museum "installation" which warehouses government owned heavy weapons for museum use. Mr. Gasser's attorney forwarded to us an application for variances; however, there were several areas of the application which were found defective (see our letter to Mr. Ross dated February 25, 1992). You will also note that the Notice of Disapproval issued December 20, 1991 refers to enlargement of a nonconforming use, although there is no record of the existence of the museum prior to 1957. Since the ZBA's application is defective, we have returned it to Mr. Ross for resubmission, if necessary. Dan Ross has asked for a conference with town representatives to discuss a complaint by the neighbor and his counsel. We are suggesting that Mr. Ross contact your office directly to discuss the complaint and any other questions Mr. Ross may have regarding the town and federal regulations for military museums. If you find that there is a need for a representative from the ZBA concerning an appeal process, we would be happy to help. cc: Building Department (Attn: V. Lessard) Planning Board (Attn: Ben Orlowski, Chairman) Exhibit 30 MEMORANDUM TO: File on Proposed Site Plan for American Armoured Foundation, Inc. N/E/c LIRR Right of Way & Love Lane, Mattituck. SCTM # 1000-140-2-16 Zoning: RO (Residential office and LI (Light Industrial) FROM: Valerie Scopaz, Town Planner./g DATE: August 28, 1991 In the RO district, museums are allowed by Special Exception. The building and the portion of the property to the south of it lie within the LI district, which does not permit the museum use. However, it appears that this use predates the 1989 zoning changes. Before 1989, all of the property was zoned "C" Industrial. The museum use was not a permitted use then either. However~ it appears that the Use was allowed to be introduced and continued. Our records do not indicate when the use began, nor what approvals were obtained at that time. In any case, the Planning Board cannot proceed with site plan approval without the Zoning Board of Appeals' review of the ,situation. At the least, the property owner must apply for a building permit for the toWer. The existance of any other violations or non-conformities must be determinined by the Building Department. CC: Victor Lessard, Principal Building Inspector Vincent R. Wieczorek, Ordinance Inspector Harvey Arnoff, Town Attorney Gerard P. Goehringer, Chairman, Zoning Board of Appeals Robert Kassner, Site Plan Reviewer I'I.ANNING BOARD MEMBERS Bennett Orlowski, Jr., Chairman George Ritchie Latham. Jr. Richard G. Ward Mark S. McDonald Kenneth L. Edwards Telephone (516) 765-1938 PI,ANNING BOARD OFFICE TOWN OF SOUTHOLD SCOlq' I,. tlARRIS Supervisor Town tlall, 53095 Main Road PO. Box 1179 Southold, New York 11971 Fax (516) 765-1823 ~F. MORANDUM TO: FROM: RE: Judith T. Terry, Town Clerk Town of Southold Bennett Orlowski, Jr., Chairman Change of Zone Petition for The American Armoured Foundation, Inc. SCTM ~ 1000-140-2-16 N/E/c LIRR Right of Way and Love Lane Mattituck, N.Y. DATE: October 6, 1992 P, EC IV D 0CT 6 t992 The Planning Board has reviewed the environmental consultant's draft recommendations for this project. The environmental review was too narrowly focused on the subject property alone. The review should have incorporated a wider area, namely the surrounding business district, because the proposed change of zone will have an effect on that area. The Planning Board will be assessing the zoning pattern in accordance with the goals of the Master Plan Update. Our recommendations on the environmental-determination and the petition itself will be forthcoming shortly. ZONING BOARD OF APPEALS TOWN OF SOUTHOI_O: STATE OF NEW YORK In the Matter of the Application of WILLIAM F. GASSER and the AMERICAN ARMOURED FOUNDATION~ INC., For Variances from Article IX 100-91 C(1), Article XXIII 100-231A and Article IX 100-93 REPLY MEMORANDUM OF APPLICANTS TI] MEMORANOUM IN OPPOSITION OF OIANE AND FRANK AMMIRATI STATEMENT OF FACTS Much issue is taken with the misstatement of facts' offered in the memorandum of Oiane and Frank AmmiratiJ hereinafter referred to as the ?objectants." On November 20J 1980J the applicant~ Mr. William GasserJ approached the Zoning Board of Appeals of the Town of Southold strictly for the purpose of an informal discussion concerning his plans to establish a Aot-for-profit museum for armoured vehicles. Contrary to objectants' suggestion to the Board in the instant case, it cannot be inferred that applicant planned, at that or any time~ that the vehicles would be stored inside the existing'building then on the subject parcel. Indeed~ twenty vehicles were anticipated, and discussed~ with the 8oard. Twenty vehicles, distributed with sufficient space between them so as to allow for exhibition~ were ~ell beyond the storage capacity of said building. When the applicant placed the armoured vehicle displays on the propertyJ the applicant did so as a State designated foundation. E:ased on communications with~ the Town Planning 8oard and Building Inspecto~ the applicant endeavored in good faith to comply, and has complied with each and every directive of said authorities. It was the applicant's intention at all times to continue the storage use of the property, and to allow l'imited public acces to view the items stored. This had been precisely.the use of the property by the previous owner, to wit: storage of materials with public access. Given the very unusual configuration of the subject premises, the applicant regarded his display of the items stored at the site as not only very similar to the previous use-of the property~ but also as the only possible~ practical use~ His responses to and cooperation with the Town authorities in every instance is a matter of record~ and contradicts objectants' unfounded allegation that applicant has knowingly violated Town Law for thirteen years. Specifically~ when objectant's complaints precipatated the Building Department's letter to applicant under date of Septtember 20, 1988~ applicant made inquiry to the Town Planning Board in writing on October 2~, 1988, and complied with the Town's determination, issued February 17, lgS~, that applicant shall submit a site plan, which applicant accomplished in the form of a final, complete submission on April 16~ 1Bgl~ The length of time which elapsed during this period was due to a series of numerous discussions and correspondence between the applicant and the Planning Board. Actual surveys were not avilable to the applicant until July of 1991~ The objectants are quite incorrect to suggest that applicant did anything less than what applicant actually didJ which was to pursue all avenues available to him with the Town~ Thereafter, the schedule of applicant's efforts can be listed as follows: August ~' revisions to site plan, discussions. 1991: Pl~anning Board required resulting in a series of December' 23, 1991: Application to Building Department for tower permit. January, 1992: Received Notice of Disapproval, based on grounds that a non-conforming use cannot be enlarged. February 2S, 1992: Application for variance for tower. April l, 1992: Request for conference with Town Attorney and Zoning 8omrd after numerous discussions convinced applicant of the need for application for zone change. April 1S, 1992: Received letter f~om Town Attorney suggesting zone change and not to proceed with any othe~ applications until Town Board decides. May 12, 1992~ Applicant submits application for zone change to Town Board. September~,'~"-' l~lj.:J--J--m'J Received with the covenant that, among other things, back 100 feet fro~ Love Lane. zone change towel- be moved September, lq'~~' --z through summer of Comply with zone change conditions; proceed with discussions with Planning Board re. site plan. ex tens ive January 1._4 F'lanning E:oard completes review and requires site plan re¥ision with variance for sign~ Application submitted for signs to Building Dept. February 4~ 1994: Disapproval received for signs. April 2~ 1994: Application submitted for sign variance. Tower required to be moved further to rear yard, with adequate room for parking (S spaces)~ -~4, Variance for signs received from May, Zoning Board. May 22, 1994: Returned to Planning E:oard with sign variance and was then directed to revise site plan, and seek variances for tower, fence and outdoor display. June 13, Oepartment for tower~ 199~: Application to Building fence and display items~ July ~2, 199~: Received disapproval from Building Dept. for tower~ fence and displays. August ~7~ 199~: Applied to ZBA for variance on fence~ towerand display items (instant application). Of particular concern is the observation tower, whose history at the site is quite inaccurately recounted by objectants. This tower at the direction of the Town Planning Board, Zoning 8oard and Town 8oard, has been relocated, and has been reduced in height. Because of the Planning 8oard's most recent direction that parking spaces be established at the back of the property~ the applicant now seeks a variance from the provisions of the Town Zoning Code with respect to the requirements of set back and distance from neighboring property lines (see instant application). A great length of time was consumed over a period of years to determine in the first instance whether the observation tower would require a building per~it~ and --4-- particula~-ly whether it was a structure or display item. The pre-existing~ non-conforming use which applied to the propertyJ and which has been at thb center of applicant's interaction with the TownJ lies with applicant's storage of military artifacts~ Applicant relied upon the Certificate of Occupancy issued for this property as the basis for its use, When the q~estion of outside storage of these artifacts first became an issue of concerns it was applicant who made inquiry to the Town attopney~ and it was applicant who then suggested that it seek a zone change. The Town Attorney~ in his letter of April 27~ 1992~ concurred with that suggestion~ Objectant characteristically distorts the origin and content of this communication between the Town Attorney and the applicant~ to the point of quoting it out of context. Applicant immediately made such zone change application~ which was granted by the Town Board with certain conditions with ~which applicant has complied, Throughout this process~ objectants continued with their strategy of unfounded allegations~ misstatements and the lodging of objections which lack any basis in fact o~ in law, As per the decision of this Board of May ~ 199t to grant the variances sought by applicant with regard to signage and fencing~ applicant has every intention to seek site plan approval from the Town Planning Boa~dJ the application for which is pending. Further~ the approvals secured by applicant from NYS DOT will not expire in the interim. Applicant shall comply with all other sign and zoning regulations. This shall include a fence permit application to the Building Department, to be~ submitted folowing action on the instant application~ and application to the County Planning Commission~ again subsequent to action on the instant application before this Board. Essentially~ the actions of the Buildings Department and the Planning Board with applications cannot proceed is decided, Whether the as one entire application this Board is completely respect to pending until the instant application instant application is considered or three separate ones before immaterial to the applicant~ and suggests yet another specious complaint by o6jectant POINT I APPLICANT HAS SHOWN PRACTICAL DIFFICULTIES AS BASIS FOR AREA VARIANCE Applicant has shown without question that the subject premises cannot be put to any ~eal use absent the variances which have already been granted or which are sought in the instant application~ The configuration and dimensions of the property offer even more of a practical difficulty than the Court of Appeals of New York encountered in the in the case of FUHST v~ FOLEY~ (1978) ~lO N~Y.S. 2d $~/ 45 N.Y.2d ~l, The applicant certainly meets the test handed down by this decisionJ as well as that set forth in the provisions of Town Law Section 267-b~ This Board itself cited the practical difficulty as it applies to this property's L-shaped configuration in its decision of May 4~ 199~ particularly as to the virtual impossibility of future construction on the property. This hardship is accentuated by applicant's not-for-profit status in New York state~ and its reliance upon donations for its operations~ as set forth in the summary of applicant's operations submitted herewith. Applicant reaps no real monetary gain from the property once its variances are granted~ and thus do the principles of the cases Cited by objectant not apply to this matter. Moreover~ at the time applicant purchased the subject property in ~980~ its zoning (Zone C) did not preclude m~seum use at that time. It ~as, in fact~ the subsequent adoption of the Town's Master Plan which created a conflict in permitted use~ and which underlay the application for zone change. Accordingly~ the standard of "self-inflicted loss" outlined in the case of COWAN v. KERN~ (~977) 4] N~Y~ 2d $9~ does not apply to appl~cant~ and never did~ The very case cited by objectant~ NATIONAL MERRITT, INC. v~ WEIST~ (]977) 4~ N~Y~ 2d 438 stands for the proposition that broad discretion is granted by the State Legislature and by the Courts to local Zoning Boards and Planning 8oards~ appointed as they are by the elected --7-- representatives of the local municipmlity. The ].aw sets the standards~ and the boards interpret how those standards mpply to a locml situation~ According to m recent decision involving this Zoning 8oard, JOROAN'S PARTNERS v. GOEHRINGER (2d Oept. lg94) .... A~8~2d ...... , 611 N~¥~S~2d 626~ it is clea~ly the lmw of this stmte~ apparentl~ overlooked by the objectant, that the Zoning Bomrd of Appeals hms primmry jurisdiction in the interpretmtion of applicable zoning ordinances. The objectmnt hms not demonstrated even the slightest memsure of mb~se of thim discretion, or thmt the standmrd of hmrdship hms improperly been interpreted by this F'OINT II AF'PLIC:ANT MEETS; THE RE(~JIREMENT.=, OF TOWN LAW 267-b (.;,) Applicant has shown to this E:oad that the general tourist activity of the Love Lane, Mattituck neighborhood is enhanced by the attrmction of a ~use~ containing ~,ilitary artifacts dating back to the A~erican Revolution. Ob.~ectants~ conte~ptuous description of the applicmnt~s artifacts as "World ~ar II machinery" notwithstanding, the fact re~,~ains that pel'sons wino visit the ~useu~,~ also visit other co~m'~erciat activities within this · neighborhood. Objectant is s, ell aware that visitors to the n'~useu~, also patronize objectant's food service establishn~ent~ and vice versa. Applicant has also shown, further to the provisions of ~Town Law Section 267-b (3)~ that the configuration of the subject property renders this a~ea variance the applicant's exclusive method of achieving the benefit of the propertY's continued use by applicant~ This B.oard has already considered and will continue to consider the environmental conditions related to applicant's use of the property, has set forth conditions addressing same, and has received from applicant more than adequate proof that applicant has complied with these conditions, despite t'he statement by objectant that "we find that this applicant cannot meet the. level of proof required..." (Objectants' memorandum.p. 17). The applicant does not seek a variance with respect to the observation tower because of its previous location, or the length of time of its previous location on the property. This is one of many examples of how objectant misstates applicant's position, and then complains of that position. Applicant originally placed the tower on the property as a display item, and has complied with the directives of both the Building Department and the Town Board, and again by the Building Department, in terms of Moving it and reducing it in size. Although applicant still regards, and uses, the tower as a display item, it seeks a set back variance, applicable under the Zoning Code only to structures, because it has been recently required to do so~ At no time did applicant conclude --9-- that~ as objectant deceitfully suggests, "tNe tower will not alter~the neighborhood because it has existed for ten years." (Objectant's memorandum, p. 19). It is the contention of the applicant that the tower~ aS moved and reduced in height, will not change the neighborhood because it has value as an historic artifact, as a memorial and tribute to MIA'a and POW's, and as a point of interest to the tourist activity common to the ~_ove Lane area. Nor were there regulations in effect in connection with outside storage or display when applicant acquired the property~ contrary to objectan~s' comments. With a certificate of occupancy for warehouse-storage~ appliEant was acting under the belief that his open and notorious use of the property for the storage of these artifacts would be permitted. The bad-faith, calculating design attributed to him by ob~ectants is unsubstantiated and irresponsible. We hasten to add that there is no nillegal .electrical conduit" at the top line of the fence~ Contrary again to objectants' allegations, this conduit has been inspected and certified'with an electrical underwriter's certificate~ which has been submitted to the Planning 8oard in its site plan review pcocess~ Likewise the unfounded, goatuitous remarks in objectants' memorandu~ with regard to applicant's security video camera, which f'aces the building located on applicant's property. Finally~ we co~e to the insistence that applicant should p~rsue storage at this p~operty only thz, ough construction of a building to house all items stored at the site~ Objectants' approach to this entire situation, on the basis of emotion rather than reason~ is no more apparent than here~ To build anything further on this site which would be adequate for storage would require enormous expense and delay~ The dimensions of the property and the Zoning Code would necessitate numerous Yariances~ and the effort of applicant to finalize with the Town of So~thold the status of his property$ which he has been attempting for yea~s~ would continue indefinitely~ much to objectants' delight~ CONCLUSION; Applicant has made a good faith effo~t to conduct the storage and display of historical artifacts in compliance with all requirements which the Town has promulgated. Objectants acquired their neighboring property to the north of applicant six years after applicant operated its site as a museum. Objectants were fully aware of applicant's use of this property. Objectants have irrespoosibly fictionalized applicant's conduct and ~otives. Nevertheless, applicant has complied with the laws and ordinances of the Town, and of all directives which the Town has lodged. It is a direct consequence of applicant's policy in this respect that applicant is -ll- before this Board with the instant application, in the same cooperative spirit as in numerous, previous applications before this and other Boards over the years in connection with this property. Contrary to objectants' unfounded statements~ there is no question that the Town and the applicant have been working diligently in the Town's administration of its regulatory authority. Applicant's use of the property as a museum of historic~ military, artifacts is. very much in harmony with the tourist-based theme which recurs throughout the Town's Master.Plan. The character and economy of the surrounding neighborhood have benefitted from applicant's activity, and applicant has met and will continue to meet all the standards which are set forth in Town Law, case decisions, and in the application of these standards to applicant. In not one instance has applicant resisted or objected the conditions set forth by any Board or Department of T~wn of Southold at any time with or the use thereof. Dated: February 1, 1995 Riverhead, New York respect to to the his property Respectfully submitted, Gregory J. Blass Attorney for William F. Gasser and the American Armoured Fiundation Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 PLANNING BOARD OFFICE TOWN OF SOUTHOLD December 20, 1988 John P. A. Marcin 115 Atlantic Avenue Hempstead, New York 11550 RE: American Armoured Foundation Inc. Museum SCTM ~1000-140-2-16 Dear Mr. Marcin: The Planning Board reviewed your correspondence dated October 24, 1988. A site plan is not required unless a structure is being added to the site. It is not clear from the letter what structure (s) is being proposed. If you have any further questions, please Go not hesitate to contact this office. Very truly yours, BE~E~ ORLOWSKI, Jr. CHAI~ cc: Vincent R. Wieczorek, Building Department VS/jt Page 54 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals MEMBERS: Aye. MR. CHAIRMAN: if we will get to it tonight. have a nice evening. We're reserving decision until later. I don't know We thank you all for your courtesy and 4260, 4261 and 4262 9:20 P.M. Application Nos. WILLIAM F. GASSER Application for Variances concerning this property known and referred to as the American Armoured Tank Museum, 620 Love Lane and the south side of County Rt. 48, Mattituck, NY; County Tax Map Parecl No. 1000-140-2-16 located in the Hamlet Business Zone District, which requests are noted as follows: Appl. No. 4260 - Request for Variance under Article IX, Section 100-91C(1) based upon the July 12, 1994 Notice of Disapproval issued by the Building Inspector for the placement of accessory tower structure which is required to be located in a rear yard with a setback as per Section 100-33B(2) at five feet from the property line; Appl. No. 4261 Request for Variance under Article XXIII, Section 100-231A based upon the July 12, 1994 Notice of Disapproval for the height of the fence which exceeds the required height limitation; Appl. No. 4262 - Request for Variance under Article IX, Section 100-93 based upon the July 12, 1994 Notice of Disapproval for the outside storage or display which is not permitted in this Hamlet-Business Zone District. Page 55 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals The Chairman read the legal notice as advertised in the official newspaper of the Town. MR. CHAIRMAN: I have the original tax map and we have innumerable amounts on (inaudible due to coughing) the survey on this property; I will now turn the hearing over to I assume noted Counselor, County Legislator. GREG BLASS: Good evening. All Members of the Board, how's everybody? I have to submit for the record, Mr. Chairman, the confirmation of posting which I'll offer as an exhibit. Mr. Chairman, Members of the Board, by way of background and on details of the applications before you tonight, I just want to say that the American Armoured Foundation is a non-profit operation. It provides a tourist site in 1994, of approximately 17,000 visitors, all of whom are spread out on any one day operation. They never arrive at large volume, but, from Wednesday to Sunday. or three local senior citizens. during the summer months they operate They employ at that period of time two They have six employees on staff and I want to point out that one of the part-time employees is going to, is here tonight and he is submitting a statement, a signed statement that he will take-up the responsibility outlined in the Board's negative declaration relating to drainage pans and oil absorption blankets and daily checks. I'd like to focus the Board's attention if I might on those two aspects. With regard to the daily checks of the vehicles, I have for the Board's attention, I'd like to submit in the record a signed statement from Mr. Paul Peterson, which statement indicates that he is now going to take up the Page 56 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals responsibility of daily checks. Mr. Peterson is here tonight if the Board has any questions for him. I only have one copy of that. I'd be glad to offer other copies at a later time to anyone who needs it. He will be responsible for, as his statement says, the daily checks that relate to the vehicles and other displays at the site. The aspects of the mitigating measures of drainage pans and oil absorption blankets, I have, and I do have serveral copies of this for anyone who wishes to have one, an outline of the mitigation measures that the Board of Appeals has indicated in their neg dec which is under date of January 3rd. I'll pass this out to the Board Members and also to anyone else that may wish to have it. These mitigation measures indicate that practice of the drainage pan has already been underway at the site. The oil absorption blankets, we expect them to be available and in use on the property within the next couple of weeks. We have just been going through the various items on the market that would meet this purpose and as the statement indicates they will be put into operation or installed beneath each displayed vehicle before the end of this month. I'd like to talk now about the fence, the tower and the outdoor display. I'll start with the outdoor display of the vehicles for which we seek a variance for the Hamlet-Business by indicating that the mitigating measures for environmental protection really serve to, I think, address the concerns that the Board has and the town, as a community would have about the outdoor displays. But, the arrangement of the property, the dimensions of the property, don't realty lend themselves to make these interior displays where we would Page 57 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals be able to have the sufficient number of displays or actually be able to have the kind of operation that we envision here at the tourist site. We think that the outdoor displays are not for war machines really that have been referred to. These are, if I daresay, these are much more of Articles of Historic interest that correspond to the master plan, theme tourism in the Town's master plan and I think that the museum function of this site does not adverse the impact, the community of Love Lane in Mattituck in any manner, shape or form. I would like to go to the Board and ask for the Board's consideration of the community interest in having a museum operation like this and how the imposition of the, of only indoor displays would really create the kind of hardship and obstacle to this museum's operation that ought to be avoided. With regard to the tower, again, I would point out to one objective-- to the objectives, the characterization that this is a gun tower - this never was a gun tower, never could be. The POW Memorial Tower is an observation tower similar to that which was used, it was used in POW Camps in several of the awards and conflicts that have occurred in our history, but, as per the Town Board's directive, the observation tower, the memorial tower was moved 100 feet back from the Love Lane frontal area. It was again moved at the direction of the Planning Board, and then it is now in such a configuration as to be slightly less than five feet~ from the-property line of the rear and side but that is unavoidable because of the Planning Board's requirement for the installation of five parking spaces in the same Page 58 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals rear area. So, we're asking the Board to consider the American Armoured Foundation's request that the variation of approximately 9 inches 1.7 inches and about 2 feet on the three corners of that tower being closer by that measure from 5 feet, be given careful evaluation by the Board. We respectfully request that. As for the fence, we would point out that the United States Army originally required a 10-foot fence for the kind of displays that we had, have intended and (inaudible). The fence is 6-1/2 feet on the side and 6.8 feet in the front. We ask that the Board understand that in addition to that barbed wire has been placed strictly for security reasons, not for any other extended purposes but double barbed wire to avoid intrusion of, by vandals and others. We think that overall, however, the Board should take into consideration the fact that every directive and every mandate from the Town Board, from this Board and from the Planning Board has been complied with by the applicant in every respect. And we would also suggest to you that the objective of this operation is to be a community involved figure, a good citizen, if you will. They contribute to the Veterans' Parades, they contribute equipment to display at places when requested, they honor discounts and even admit free of charge the various groups, including senior citizens, they are very attractive to the Boy Scouts and other organizations. We ask that whatever the Board does, if they allow these three variances, if the application is to be considered, we would be most grateful and we don't really care - it's irrelevant to us whether they are considered separately or together. There is a s~ggestion that has been made Page 59 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals that there is some scheme underway to cause these applications to be considered separately. If the Board wishes to consider them as a whole, certainly the Board can do so. We just ask that every consideration be given to the fact that when we talk about law now, zoning law, the property is l~elatively unique, its dimensions don't lend itself, don't lend themselves as I said to substantial uses. It's unique in that regard. There are no properties in this particular zone district that have these dimensions and these characteristics. The applicant would really have no ability to realize a reasonable return under any other uses. As I said before, we don't see how a museum activity - a tourist attraction like this adversely impacts this community. It has not been shown by anybody, and in fact we have a number of people here and a number of people were not able to be here tonight who very much favor the operation of this facility. We, therefore ask the Board's indulgence. Thank you very much. MR. CHAIRMAN: Mr. Blass just before you sit down, could I possibly have a copy of the placement of the tower itself. You had read some dimensions off, if you might have it and we could have it, I don't see it in the file. GREG BLASS: As to present location? MR. CHAIRMAN: Yes, we'll we'll give it back to you. GREG BLASS: This is a surveyor's drawing of that. MR. CHAIRMAN: make a copy of it, Mrs. Gasser, and sketch drawing. But we'll provide one. Greg, that has the setbacks on it? We don't have a Written in? Page 60 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals GREG BLASS: Yes. MR. CHAIRMAN: Now, there's no excessive height on that tower? That tower has been shortened to the point which it does not exceed the 18 feet? GREG BLASS: Right, 17.5 feet. MR. CHAIRMAN: Alright, great. GREG BLASS: And that was reduced from its original height to conform to the height requirements. MR. CHAIRMAN: Let me go back to the SEQRA review or the long environmental assessment form. When I was down there, Mr. Gasser was very gracious in showing me the place, and they were moving some articles around and so on and so forth and I noticed that there were actual pieces of plywood under some of the vehicles that were dripping oil and so on and so forth. Can I suggest to you that whatever type of blankets that are used in reference to the collection of oil and what you might be investigating, that with the great amount of wind that we've had out here, unless that particular article of absorption is fixed somehow to a piece of plywood then it's going to blow, except for that area which becomes saturated with oil, so, I'm suggesting that you do deal with it. Yes, Mrs. Gasser. MRS. GASSER: The oil absorption blankets are going to be placed under the drip pans. MR. CHAIRMAN: Oh, under the drip pans. MRS. GASSER: The drip pans will be the way --- Page 61 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals MR. CHAIRMAN: That you're going to actually collect the oil and any excess will be on. Alright, that's great, so we won't go back to the plywood situation that you had there or whatever. MRS. GASSER: No. GREG BLASS: The drip pans themselves will also be weighted. They will have weight in them. Not even to interfere with the voulume that the drip pans will hold. MR. CHAIRMAN: Ok. WILLIAM GASSER: In that actual instance of the plywood and that is to lay on to work on those (interrupted)- MR. CHAIRMAN: No, I figured that, Yes, I know, it just had oil on it so I just assumed it was ...... MR. GASSER: (Chuckle amongst them) (Inaudible response). MR. CHAIRMAN: Alright, the situation, I didn't ask this question but I'll ask it now. They were moving a rather large tank at the time that I was there. From a security standpoint is there any possibility other than the veterans that use this facility and are friends of the Gassers and all, is there any possibility of starting any of these vehicles without, I mean, could someone who was a veteran come in and actually attempt to start this vehicle if they climb the fence? WILLIAM GASSER: There is always a possiblity. One would have to be extremely clever and have a truckload of batteries in order to do that. MR. CHAIRMAN: So it would take a phenomena] amount of batteries to get it going. Page 62 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals WILLIAM GASSER: Most of our tanks are kept at an absolute minimal amount of fuel because I have stagnation problems with fuel, it kills the vehicles, so when we build it, when we have certain vehicles that run we make our jerry can run through the local gas station. We'll run them for the day, we'll run them out if at all possible. They'll be less gasoline or diesel fuel in any vehicle than in the local mini bike. OK, I guess you're talking of four gallons at most, right? That's all that's in them because it's detrimental to these vehicles. MR. CHAIRMAN: So, we assume that any fanatical person that attempted to start something and attempted to drive it down the road or through a house or whatever the case might be wouldn't get too far? WILLIAM GASSER: He'd have to be real cleaver to manipulate it. Also, we, most of the vehicles are static and they have been drained, OK, it's only I would say approximately 25% of the infliction and even less of a percent of the outside vehicles that are under their own motor power - probaby the ones you've seen. MR. CHAIRMAN: Right. As for the fence, I'll direct it to my Board Members if they have any specific questions. The only other thing that I will mention is that I cannot reiterate the uniqueness of this property and that's of course the uniqueness of zoning in general. We have seen parcels as small as 1800 sq. ft. in this town that have had houses on them, and we've seen tracks of land in excess of 100 acres. There's no doubt in my mind, I mean that have been before us you know for one reason or another even if it's a wider area or whatever the case might be - But there's no doubt Page 63 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals that because of the way that this particular piece of property lies and its shape, that it's not unique. I could not agree with you more. It's absolutely mind-boggling you know , how unique it is and I could not agree with you more. I have no idea if that has any positive or negative effect. Certainly, it has a negative effect in reference to the moving of vehicles because of the narrowness of the property but, let's see what develops throughout the hearing. Does anybody have any questions of the applicant or his attorney at this point? MEMBER VILLA: No, just my question, you say your fence exceeds the height limits and on top of that you've got double barbed wire. How's the liability factor come in on that? You're trying to keep people out, yet it's right on a right-of-way and as a lawyer how does this, how does the liability factor come in here? GREG BLASS: Well, it's not, it doesn't constitute a hidden trap which would incur liability on the part of the property owner and something that even a trespasser would not recognize or see but because it is apparent and out in the open, it is our position that it actually does not cause liability but protects the property owner from claims of injuries by a trespasser to try to traverse it. The trespasser would be undertaking the risk knowingly. Whereas, if it were hidden and in a sense of what they call a bear-trap kind of protection for the property then in that event then the liability to the owner would be serious, but we think that it's open. It's a very apparent display a trespasser would recognize it. ~ Having to climb up to get to it would take extraordinary steps to perform the trespass. Page 64 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals They would be what you would call contributorily negligent to a. substantial it not total degree if they hurt themselves in the process. MEMBER VILLA: Now, you're only 6 foot 6, you really don't have to take extrordinary measures to reach it. I mean, a normal person can reach about 7 or 7-1/2 feet. GREG BLASS: Right, but they would have to climb to a certain degree or reach or go out of their way whereas if it were a trespasser who didn't have to take any reasonable steps just to go on to the property and encounter something that would injure them if they didn't, that was apparent to them, that was not out to the open, then it would be a serious problem. In this case, it's well above the ground height and that it is visible to be what it's known to be. We think that there would be no liability to cause this problem. MEMBER VILLA: MR. CHAIRMAN: OK. Anybody else have any questions of Mr. Blass? (none) OK, let's see what develops, thank you. Is there anybody would like to speak in favor of this application? Yes, sir, could you come up, and, well, unless it's going to be brief. BOB HOPKINS: My name is Bob Hopkins, resident of Cutchogue; also Fourth Division Commander for the County of Suffolk for the American Legion. Military artifacts and things like that stand in people's mind differently. Coming from a military stand point, I think the Foundation, of course there always seems to be terminology. Is the Foundation a museum. Is it a business. The Page 65 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals Foundation as they call themselves is a unique opportunity in this area. The people that aren't military sometimes look at these pieces of equipment as dangerous and they always think of warfare. You think of warfare, or war machines. It's not the machines. It's the governments. It's not, "get rid of warfare, or get rid of a warfare machine." It's, why don't we get rid of government. They're the ones that declare war. It's not the machinery. These things mean many different things if you're in any of the organizations. When Wings comes on, you see the guys from the Air Force. It's something that they flew on. It becomes very touching to them. The guy that was in the Navy, a sister ship of his, or a class of the ship, or a number of his ship, becomes very touching. In tl~e Army, the artifacts that they have there become very touching to the veteran especially some of the older veterans, the kids, the military bust, all of this equipment means very much to people. Again, it is a very unique situation no matter how you look at it. As far as now it has to be designed to meet the Military and the United States Government by trying to get this to conform to normal zoning and laws of the community it's got to be very tough in listening to some of the things that you people have to listen to tonight. I don't know what you get paid but it isn't enough. But, it is a unique situation that we suffer through with schools and everything else, but as a veteran and a member of an organization of the county we sure do wish that you would go over these things and think them over very deeply. Thank you very much. MR. CHAIRMAN: Thank you. Ok, we'll move on. Yes, sir. Page 66 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals ROBERT SATTIER (no spelling given): Good evening, ladies and gentlemen. My name is Robert Sattier. For the past eight years I've chosen to spend my Sundays and much of my other free time as a member of the Tank Museum's crew. I've chosen to do this because I feel a two-fold obligation. First, I feel obligated to preserve and honor sacrifices and deeds of those who created our nation's history and secondly of equal importance, to educate the youth of this area about the history and those who made it. These two purposes, commemoration and education are defines the activities of the tank who labor there. I would just what make it the philosophy that museum and all of the individuals like at this time like to challenge those present who have children in Junior High School or High School to conduct a little experiment. Ask them to identify the following ten names. Yorktown, Gettysburg, San Juan Hill, Yargon Forest, Guam Canal, Bastogne, Auschwitz, Chosen Reservoir, Kaison, and Kuwait. Try to identify them yourselves. These .ten names have two things in common. Firstly, they were places where many Americans fought and died; and secondly, they are commemorated in one way or another by displays in the museum. If you or children cannot get at ]east eight correct, then I submit we owe to them and the Americans who have fought and died in these places to show that the institution of such as the tank museum is supported and maintained. To do less would be to tribulalize the sacrifices of those from the past such as some of these gentlemen here as well as to condemn our children to a repetition of the savage and bellicose mistakes of that past. I've over the past ten years also been fortunate enough to Page 67 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals travel those parts of the world where I've been able to visit museums of a similar nature to this tank museum. The Town of Southold is very fortunate that it possesses within its borden a museum that equals or surpasses in both quality and uniqueness of collection. Museums of its type of such places as DeCurshe and Luxembourg and Bastogne, Belgian, both of which are considered world-class collections. Indeed, this tank museum has in its collection items not even found in the collections of the Patton Museum ot Ft. Knox, Kentucky, or even U.S. Army's Museum at Aberdeen, Maryland. It seems appropriate that this hearing is occurring on today's date because 50 years ago today a 25-year old G1 from Brooklyn was freezing in a foxhole in a place called Saint Fifth. For over three weeks he and several thousands of GIs were fighting what was to become the greatest battle ever fought by American Troops. He had not eaten a hot meal in over two weeks because his division kitchen company had been captured and then massacred ten miles away in a place called Mountain. His Unit, the 9th Armored Division, two months later was to make history at another faraway place Ramogue in Germany, when they became the first military units in supporting his army to cross the Rhine into the heart of Germany. Several years ago a veteran of this unit, this particular veteran, visited the Tank Museum with his grandchildren. He was able to show them a half track like the one he commanded in World War II. The rifle he carried for four years, the uniform just like the one he wore and much of the _equipment he carried during those terrible times. One thing, however, causes me to pause and reflect in silence for a Page 68 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals moment, hanging above the ceiling above him was a battle scared Ninth Armoured Division flag. He told his grandchildren that he hadn't seen one of them since 1945 and hadn't thought there were any left around anymore since the unit had been disbanded shortly after the war. At that moment his grandchildren saw a side of him they had not seen before and in that moment, they all became a little closer. How do I know these things? Because that veteran was my father, and those grandchildren were my two sons. In the eight years I've been donating my Sundays to the Tank Museum, I've witnessed many such moments; and as the survival and it is that which keeps me coming back every week. By contributing to the survival of the perpetuation of the museum, I feel that I am paying off some of the debt this country owes to veterans such as my father as well as demonstrating a commitment to them that future generations will not forget the sacrifices with the passage of time. This museum is a collection of historical artifacts which taken on their own are just things. They only become meaningful when the human element is added and the placing of human contexts on to these artifacts is what the museum does. I respectfully ask the Board to take these things into consideration when rendering Board for its patience and attention. MR. CHAIRMAN: Thank you, sir. the decision, and I thank the Yes, sir. (Pause for secretary changed tape in machine.) WILLIAM MACOMBER: Good evening, I am VFW Commander, William Macomber, Mattituck Memorial Post 1117. The American Armoured Foundation is here for all of the public, veteran and civilian Page 69 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals alike. The military artifacts and paraphenelia on display at the American Armoured Foundation is a rememberance of all service men and women that fought and died for our country our country's freedom. This is part of our American History. I'm sure if you check with the Administration, Administrators of the American Armoured Foundation, Bill and Karen Gasser, that you will find they have had visitors from all over the Country. Veterans, Boy Scouts, R.O.T.C., C.A.P. and other organizations. We must remember visitors coming to our community benefit all. They purchase, gas, lodging and visit our restaurants. We believe that the American Armoured Foundation is just as important to our community as any of the other societies in our town. The Railroad Museum, the Sailing Museum, the Historical Society. I believe that it is something that is very beneficial to our community. Thank you. MR. CHAIRMAN: Thank you, Sir. Yes, Rick. RICHARD MILLER: I'm Richard Miller, past Commander of Riverhead VFW, member of the American Legion of Mattituck, and Commander of American Armoured Vehicles Association. We want to support Bill Gasser, and I think the town owes whatever support they can give him. All the members of the VFW were into this. It's nothing that's going to hurt tt~e public. It's a museum that's the best on the east coast. I just think the town should support whatever they can do for Bill Gasser. Thank you. MR. CHAIRMAN: Thank you. Ok, we'll move over to the opposite side. I'm going to ask if anybody would like to speak against this application or these applications? I should point out that I doubt Page 70 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals if we're going to close this hearing or the hearing on these three applications tonight. CARMELLA BORELLI: Ok. MR. CHAIRMAN: We may have to digest this and then come back and close it at the next hearing so, this will give you the opportunity to review this, Mr. Blass. CARMELLA BORELLI: I would like to address before I get into a synopsis of what is in that brief, just to address a couple of things that were said tonight. I believe that Mr. Blass said that the tower is a POW-MIA Tower and not a gun tower and that it never was a gun tower. I probably know this file better than I know any other file in my office. I can't place exactly where, but in one of this applicant's prior applications somewhere along the line the historic nature of this tower was put in to support the relief requested and it was that it was a gun tower on the Sound used to protect the area during the war. That is my recollection of what was in there. So, it was not at a POW camp or an MIA in recognition. It was a gun tower. That's the first thing. One of the speakers who spoke said that this museum was like all other museums and that is realiy not the case because especially of the ones that he mentioned he mentioned the Railroad Museum, Seaport Museum and the Historical Society. Ail of those had a right to be where they were before they were established. This museum does not have a right to be where it is before it was established, so there is a significant difference and in lieu of the people coming to speak other than myself, there is a petition here that is signed by over 70 people who are residents of Page 71 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals the Town of Southold who are residents of the Town of Southold who are opposed to the applications. I'd like to give you a synopsis of what's in that Brief that you have in front of you and the Statement of Facts in that Brief runs for many pages and the reason it runs for many pages is that the history of this Site runs since 1981, and its been illegal since 1981. And I would like to go through that because I think it's very important that this Board view the instant applications knowing that anything that's a problem here that this applicant is asking for relief from is self-inflicted. They are self-created hardships because the applicant has chosen to do what he was never allowed to do anywhere along the line. The property was purchased in 1981. Prior to purchase in November of 1980, this applicant came to this Board and said that he was interested in converting the storage building, the building mind you, not outside-display, the building into a private museum, and he wanted to discuss it, and this Board advised him that they couldn't render an opinion without an application being before it that was in November of 1980 and then he bought the property in 1981. MR. CHAIRMAN: What was the property zoned at that time? CARMELA BORELLI: The property was zoned C-Industrial at that time. The portion on Love Lane was ultimately rezoned to LI and then subsequently with the request for a zone change went to HB about a year and a half ago. The portion on County Road, because it's like a, the portion on County Road 48 was C also, then rezoned to RO and then to HB with the zone change that (interrupted). MR. CHAIRMAN: So it's all HB? Page 72 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals CARMELA BORELLI: It's all HB right now, right. It's our contention that this applicant knew that the property was not zoned for the use to which he intended it. To put it, as is evidenced by the fact that he came to this Board prior to purchase to want to discuss it. This is a Board that deals with variances from the Code which means that he had to know it wasn't zoned for what he wanted to do with it because he came here before he bought it. Second thing is that he bought it from George Penny. I would assume that Mr. Penny knew what the property was zoned. He also had a real estate broker involved in it, and I think if you put those three things together you have to know that this applicant knew in 1981 that he couldn't do what he did with this piece of property. After he bought it, that's when he started placing the armoured vehicles on it. Now we can into a great debate as to whether we call them war machines which I had called them and/or whether you call them historical artifacts. That's really not the point of what this hearing is about. The point of this hearing is about the zoning code of the Town of Southold and the violation of that zoning code. In the fall of 1988 the applicant installed the gun tower at the Love Lane entrance. Complaints' were made to the Building Department. On September 20, 1988, the applicant was informed by the Building Department that it was in violation of the code and that he needed site plan approval. The applicant's attorney at that time asked the Planning Board by letter if the tower required site plan approval and if you take a look at the exhibit, i-t's exhibit 5, you'll note that the attorney advised the Planning Board that 15 parking spaces were Page 73 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals available at all times at the site. Now, that's contrary to what really has gone on since then and now the applicant is using the fact that the Planning Board wants him to put five parking spaces there as an excuse to get a variance from the setback requirements. The Building Department wrote to the Planning Board in January of 1989, that the site had multiple violations. The Building Inspector said that he didn't order remediation but he was giving the party an opportunity to remedy it. I only mention that at this time because the same rationale was recently used by the current Building Inspector with regard to my demands over the past 2-1/2 years that some kind of enforcement of the violations go on, and the last response that I go~ was that they wanted to give the applicant some time for remediation. It took this applicant five years from the time he was given the first opportunity to remedy to act. In February of 1989, the Planning Board determined that site plan approval was required, and the applicant was so informed. Two years past and nothing happened. Then, in February of 91, the applicant asked to submit, was asked to submit an application for site planning. His attorney at the time requested a waiver because operation of the site had not changed in over ten years. Of course, he neglected to add that it was illegal for over ten years but he asked for a waiver on the basis that it was there. In March of 91, the attorney was advised that an application was expected within 30 days or the matter would be turned over to the Ordinance Inspector, and the Planning Board responded to that .attorney's statement that there was no problem at this site until this recent Page 74 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals request for site plan approval by informing him of the fact that it was improper for ten years and that the applicant had been so informed of that fact in the past. That's exhibit 10 if you're looking for it. In August of 91, the applicant finally sought and received the Notice of Disapproval but he didn't file an application until February 1992. But, on February 25th of 92, the application to this Board was returned because it was incomplete. The letter from the ZBA contains a reference to a preexisting use asking for substantiation of a preexisting use and inference can be drawn from that is that the applicant had erroneously informed the ZBA at that time that tt~is was preexisting, non-conforming, which it was not. The returned application for a variance -this is in August of 91, was never renewed and site plan approval was never pursued. In May of 92 instead, this applicant sought a zone change. The application for a zone change was not on the applicant's own initiative. It was because the then Town Attorney called for an immediate resolution of the site's problems and I quote "because I cannot sit idly by and allowing known illegal use to continue within the town". MR. CHAIRMAN: What was the date on that, Carmela? CARMELA BORELLI: That was May 1992, it's Exhibit 15. On September 22nd, '93, the applicant received the conditional zone change, which is exhibit 16 in there, which specifically stated in number 5, that the zone change was not to be considered the granting of any variance and that was because it, the record was replete of the fact that there were multiple violations at this site. Page 75 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals And in fact the town's own environmental consultant had said that there were many violations at the center. My client just informs me tonight that one of the conditions on here was that they had to put screening on the fencing that runs between their properties and they had installed the stuff that goes in and out on a chainlink fence, but my client advised me tonight that the entire fence still has not been totally put down. The front section of that fence doesn't have any screening, it's just still there, open. In April of 94, the applicant applied to this Board for a variance in regard to existing signs. As you all undoubtedly recall, I opposed that application at the time and in the brief that was submitted at that time, I pointed out in Point 1, that there were many violations at this site and the applicant was only coming before you at that time for one and that was why I objected to the three different applications here because it appeared to me that it was another attempted segmenting of what was going on and breaking it down into little pieces so that you didn't really get the feel for what you were being asked to grant. MR. CHAIRMAN: Are you still objecting to that? CARMELA BORELLI: Mr. Blass says that he, it's OK with him if you consider them all at once. I mean, I object to the fact that you consider them individually. If you're going to decide them all at the same time and we're arguing them all at the same time, then obviously you're not considering them individually. You know about all of them. Page 76 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals MR. CHAIRMAN: The question is if we, if we took them individually, there would be such redundancy and interrelation or intercorrelation that it's easier sometimes to deal with them on that basis. CARMELA BORELLI: I mean since we're arguing them all at the same time and the Board is aware of them, then that's fine. I'll withdraw the objection. At that meeting on that prier variance, if you will recall it, it came up, I know, I have a (interrupted). MR. CHAIRMAN: Can I just ask a question before you get to that? CARMELA BORELLI: Sure. MR. CHAIRMAN: Hold that thought. MS. BORELLI: Sure. MR. CHAIRMAN: What prompted the prior Town Board to grant the Hamlet Business Zoning as opposed to any other type of zoning? Does anybody have any idea? CARMELA BORELLI: You mean why did they grant an HB? I think they asked for HB. MR. CHAIRMAN: Is that what you asked for? MRS. GASSER: No. The Town Attorney, Harvey (Arnoff) told us that is the only zone that museums were allowed in, so he felt that we should go to HB so, we went to HB. MR. CHAIRMAN: OK. CARMELA BORELLI: At that hearing for that variance at the time for the signs and the fence, I stated that there were other violations at this site. The applicant denied at that time that there were other violations and the Building Inspector as a matter of fact confirmed to your Board that there were no other violations at Page 77 - Hearing Transcript Regular Meeting of January 4, 1995 Southo]d Town Board of Appeals the site. That's what he told them. That prompted my letter in April of 94 to the Town Attorney asking in essence, what's going on here? Everybody says there's violations at this site. The Building Inspector, in fact -- this Board then wrote to the Building Inspector and said, tell us whether there are any other violations. It eventually got cleared up and there were other violations at the site. This Board conditionally granted the prior request for a variance and on May 16th of 94, the Planning Board advised the applicants that they couldn't proceed with the site plan approval because there were other violations at the site, that they has to come here for a variance. And they have now filed this request for a variance from the fence height, the tower setback and the fact that the code requires that there be no open display - that the museum has to be in an enclosed building. None of the people who have spoken in support of this application have addressed the basic items that this applicant must show in order to get a variance. The applicant must show practical difficulties. Now I know that the practical difficulties test has been codified in 267-B of the Town Law but, there is a recent 1994 case decision which is quoted in that brief that says that 267-B even though it doesn't say practical difficulties, that's what it means. It means practical difficulties, and this applicant has done nothing to show you that there is practical difficulty. Now granted the shape of the property is unique and granted it is only 50 feet wide and granted that the Planning Board wants_them to put in parking spaces, but everything that exists on that site was put there by this applicant over a Page 78 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals period of 14 years, illegal, improperly and now he's saying, "Well it's always been there. I'm not going to change the character of the neighborhood. It's always been there so you have to give this to me because what am I doing? Am I doing anything different than has been done?" That is, it's ludicrous. I mean, it's such a travesty of justice as to make you stand here - I lose words. I find it hard to describe how you can do something wrong for 14 years and then say well you should let me do it, because I've always been doing it. I've done it for 14 years and I don't think they meet the test. They haven't shown you an economic hardship. They haven't shown you that they can't either move the tower or gee, remove the tower. The tower should of never been put there. It didn't have a building permit when they installed it; they didn't have site plan approval when they put it in. Take it out. That's the way to cure the illness. If they can't get it back to the setback requirements. And with regard to the fencing and military requirements, military requirements don't take precedence over this Board's ability to rule on this. The military can tell them whatever they want to tell them to do but the zoning, this Board rules as to what is allowed with inside the code and that fence is too high. In addition to which they put a surveillance camera. Now it's mounted on top of the six foot fence that has the barbed wire on top of it. There's now a camera on top of that on the side that is adjacent to my client's property, and we can't even figure out what it's taking pictures of because it faces towards us. I mean, so we haven't got the faintest idea what he's doing for security purposes but, it's up there. The Page 79 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals Planning electrical conduit wire so that's there. The equipment and fencing is too high. to secure it from vandals Board in addition has said that on that fence there is an running - which it shouldn't be there. And The way to protect the and not to have someone attempt to climb the fence to get in to start the tank even if they could start the tank, is to put them inside a building which is what a museum is supposed to be. It's supposed to be in an enclosed building. If they comply with the law, they could put the displays inside a building and they could take down the barbed wire fencing and they could get rid of the fencing cause they make them put a lock on the door. And they could put a security system on the building and they would meet the code. The 267 of the Town Law tells you that there are certain items that an applicant must show in order to get an area variance. This Board in making the determination must consider whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby property will be created by granting or determining area variance. Now, you can't tell me that there isn't going to be a change in the character of the neighborhood because it has existed for 14 years. It wasn't supposed to be there for 14 years so you can't use what you've done illegally as an excuse for what you want to do now. This section also says whether the benefit sought by the applicant can be achieved by some other method feasible for the applicant to pursue other than the area variance. Yes, they can put the displays inside a building. They can move the tower so that it meets the setback requirement and then Page 80 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals they can get rid of the fencing and then they don't need the variances that they've asked you for. It also says, whether the requested area variance is substantial. I think it's substantial. This is a large lot with an open display of historic artifacts. That doesn't make any difference. I mean it's certainly substantial what they're asking you to do. They're saying you have to allow this outside storage when it's supposed to be inside a building. The next one is whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. I see that the measures that you have put for remediation under SEQRA are attempting to attack that particular question. The last one is whether the alleged difficulty was self- created. Which consideration shall be relevant to the decision of the Board of Appeals but shall not necessarily preclude a granting of an area variance. That is monumental. This is a site that started out in 1981, in the mind of the applicant in 1980 and he knew it was improper. He knew it was illegal and it's certainly self created. Now, there's case law in the memo that holds it, that shows it when it's this flagrant and abuse, then seif-created hardship just is a basis for denial. The last paragraph C of 267, says, the Board of Appeals in the granting of area variances shall grant the minimum of variance. That it shall deem necessary and adequate and at the same time preserve an protect. I call this Board's attention to the fact that the clause in the law, says, "shall grant the minimum variance." That's not a word in law that gives any leeway. It means you must. You "must" is a command word. You must grant Page 81 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals the minimum variance if you're going to do it. This applicant hasn't come anywhere close to the practical difficulties which is the test that must be applied and as a result of that an area variance can not be granted because they haven't met the criteria set forth in either the ease law or in 267B. MR. CHAIRMAN: Could you supply us with the case law. CARMELA BORELLI: Copies of the cases? BOARD SECRETARY KOWALSKI: All ten of them. Could you give us copies of ail of them please? MS. BORELLI: Sure. BOARD SECRETARY KOWALSKI: Thank you. MS. BORELLI: Sure. You want the ones on that particular topic? BOARD SECRETARY KOWALSKI: Referenced in the memo. Mentioned in the memo. MR. CHAIRMAN: Yes, the ones that you're mentioning in the brief. CARMELA BORELLI: Sure. Now that we have computers everything is possible. Unless you have any questions--. MR. CHAIRMAN: Yes, I was going to say something, but I think it woud be redundant at this point. I do want to say this, and it has absolutely nothing to do with this application. In 1985 we had a very nice lady that owned a house on the Sound, and she could only get to her house via a right-of-way which she thought that she was using. In the interim, she was actually transversing a farmer's farm, and he then sought to stop her by the use of a gun, and this has gone on from 1985 to 1994. She was very nice and so was the farmer nice but he was very adamant - that this happened in this Page 82 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals town, this is a current, reoccurring problem. I swore that, and I shouldn't swear on the record I assume, that I would take care of it. That we would put this to bed eventually. That the farmer and the entire family wouldn't have to come in again and that she wouldn't have to come in again. In the interim, she had rebuilt the house and people had to take construction material so far down this right-of-way and then physically pick it up on their own body and take it and carry it down to the house. I sincerely hope, that we can put this to bed, not today, not tomorrow, but within the next few months. One way or another, alright, so that we don't see these nice people again, not that we have anything against you, that we don't see the Amaratti's again and yourself. Because you're all nice people. But, you know, constructively we're going to work together, hopefully to a certain end. I mean, certainly what you're saying has a great amount of merit, and I know that you spent long and tireless times trying to say it to us and that was, I assume, the reason for your objection back with the sign permit. So, we're going to attempt to work on that on that mode, and certainly we're going to be dealing with our Town Attorney in the interim when you give us the case laws, and we're going to furnish Mr. Blass with copies of that and then we're going to come back and deal with the aspects of CARMELA BORELLI: MR. CHAIRMAN: what we have to deal with. That will be terrific. And let's hope that problem, this particular problem to bed. MEMBER DINIZIO: Can I ask a question? 1995 puts that particular Page 83 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals MR. CHAIRMAN: MEMBER DINIZIO: CARMELA BORELLI: MEMBER DINIZlO: know, all of your Surely. Carmela, I'd just like to ask a question if I could. Sure. I'll make a statement I suppose this is. You comments concerning the Town and how it has acted know, else. in the past ten, fourteen years, are well taken by me. You I think that their actions have been consistent, if nothing However, being a business man myself, I know that you hate to take a gamble on something that you could kind of grow into and that's what this looks like, this has happened here. Not to say that it's right, OK, but just to say that's how a thought process could evolve and certainly if it was encouraged by non-action and people are supposed to be enforcing the laws, you know, you intend to, you could go asleep a little better at night if someone is not knocking on your door all the time. Is there anything that the applicant, I shouldn't say that, that your client specifically, I know it's not going to make her 100% happy, but is there anything specifically that she's objecting to other than the way the whole case was handled by the Town. I mean, specifically the fence and my belief should be higher than a 4-foot fence, you know, we're talking about a couple other things, setbacks on the commercial piece of property next to a railroad track, you know, I'm trying to put this thing into perspective as to what, why she would go to the trouble of hiring you. OK, there's got to be some reason there besides what you said. CARMELA BORELLI: They like me. (Jokingly) Page 84 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals MEMBER DINIZIO: Well, my purpose would be not to take my money out of the bank to give to you. MR. CHAIRMAN: Could you just hold that thought one second. My statement before, I mentioned the case for 1985 was: Give me a wish list. Now, if your wish list is that, excuse me. MEMBER DINIZIO: No, you're on the right track. MR. CHAIRMAN: That's exactly what I was going to say when I said the word, this may be redundant, OK, and when I went into the Whitney of the 1985 and 1984 situation with the farmer and the lady that owned the right-of-way. Well, the lady that owned the house. If your wish list is that every piece of equipment be .placed in a building - that's a pretty tough wish list. CARMELA BORELLI: I certainly would be willing to talk to my clients about a wish list. I must tell you in advance that I got this request from the Town Board. Give us a wish list. And I gave them a wish list, and we didn't get anywhere near what we wanted on our wish list and even the things that we got have not been complied with yet, like the screening, and the Town Board said screening preferably of the vegetation type which would have been pretty at least, so you didn't have to, instead of getting the 'preferably of the vegetation type,' we got those 'whatever you cai] those little things that go in and out of the chain link fence' which hasn't even been finished. So, we've done this wish list routine and we didn't get what we wanted, and the applicant didn't even comply with what they were told to do. However, I have more faith in this Board than Page 85 - Hearing Transcript Regular Meeting of January 4, 1995 Southo]d Town Board of Appeals I had in that Town Board, so, I will talk to my clients about that and certainly get back to the Board. CHAIRMAN: I must apologize for jumping in there. MEMBER DINIZIO: I just want to be specific in that one screening. OK, because I think the property is narrow - having to plant evergreens on their property would certainly take away from them. I mean is there any compromise in their paying for evergreens on the other side of the fence? Mr. Dinizio, we offered to do that. Yes, well that's why I'm asking her that's why. And we offered to plant Hemlocks specifically all WILLIAM GASSER: MEMBER DINIZIO: WILLIAM GASSER: along the fences. MRS. GLASSER: it all started. MEMBER DINIZIO: This was before all this town stuff started, before Well, if you don't mind I'd like to hear it from --- CARMELA BORELLI: I really would have to talk to my clients, you know, where we have a chance to go over what are the pros and cons here, so that we can discuss it. I mean, I know that, unsightlyness is one of the objections, noise is another. As you heard before there were seven people who came and said that they work there on a Sunday. Now, a Sunday in the summertime is when my clients do a Sunday Brunch - where people sit outside. Now, not only do you have to look at what some may call historical artifacts but you have to listen to historical artifacts as they are moved, as they do things so that, I mean, we're talking about, you know, a big imposition and I agree with you that planting an evergreen may cut Page 86 - Hearing Transcript Regular Meeting of January 4, ]995 Southold Town Board of Appeals down their space but they have been illegal, they weren't supposed to be there, so they weren't supposed to have 50 feet of space. You know, maybe they can use 40 feet or whatever it is. ! will talk to them. I would like the opportunity to be able to discuss it with them in depth so that we could .... . MEMBER DINIZIO: Yes, I would just like to see it go along to. Again, I can certainly sympathize with the fact that if you're going to invest this kind of money, and again, in the context of how the Town treated it, ok, in that, you know, maybe it was never encouraged by the Town, but certainly like Mr. Flynn stated about, I think, he was insinuating signs. Something as visible as signs, that law can't be enforced, let alone you know Bed & Breakfast in five rooms and two rooms. Whether there would be some compromise in that. I mean, certainly, maybe they don't start their motors on Sunday until one o'clock or two o'clock. Those kind of, you know I understand, that's certainly if you are serving brunch outside you don't want to have, but along those lines - if you can think along those lines and, you know, I think it would be very constructive in that. I understand that you would have to compromise some and maybe a little bit more than you would like, but perhaps if you're asking for a compromise, we could ask for compromise on this side too. CARMELA BORELLI: What I, in doing that, I mean in discussing that in saying what we're going to do, I have a question which comes into my mind right away. How am I going to be assured that after my clients and I discussed this and we, let's say come up with a wish Page 87 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals list that can be worked out. Let's assume we can do that - how am I going to assured that in 1995, this town is going to do what they haven't done since 1981, which is enforce the damn thing, whatever it is that you put into effect. How am I going to be assured? MR. CHAIRMAN: We, to answer that question, we would hope that when the Town Board hires the Code Enforcement Officer, that they are going to hire, that that particular person will have the courage to do so. In all situations. Not necessarily .... CARMELA BORELLI: They're mad at me Jerry. I mean, I write them so many letters about why aren't you doing something, that I get nasty responses in return, but they don't do anything. MEMBER DINIZIO: Carmela, I couldn't agree with you more. Honestly, but again, I mean for us to give this off the ball, I mean, if it takes some commitment from all of us, maybe then it could happen. But again, I agree with you 100% of what you said, but I see this as not going anywhere other than back here again and going for another ten years or five years, but whatever it is, certainly having a major -- MR. CHAIRMAN: Yes, well that's what I'm saying with a lot of money involved. CARMELA BORELLI: To a court MEMBER DINIZIO: Right. MS. BORELLI: Would have to be the next step. MEMBER DINIZIO: Yes. Well most of the things that you stated here tonight were better said in a Court than to us. I mean really can't consider how it was done. Page 88 - Hearing Transcript Regular Meeting of January 4, ]995 Southold Town Board of Appeals CARMELA BORELLI: I'm getting ready. MR. CHAIRMAN: Well that's definitely our concern that if it's remanded to a situation where we're going to be tied up for the next 2-1/2 years with it .... BOARD SECRETARY KOWALSKI: plus, one can lose and the other one win. You don't know who that's going to be, so, it may be a waste of time and money too, or vice versa. CARMELA BORELLI: I'll talk to them, OK. MR. CHAIRMAN: Mr. Blass. MR. BLASS: Just a minute. MRS. AMMARETTI: The only reason we have Carmela here to speak for us, is because for a lot of views. We live in the house. This isn't some place we come to on Sundays. That's my home. I'm raising my children there. MR. CHAIRMAN: You also run a business there. MRS. AMMARETTI: Right. And for a lot of you who called and called and no-one listend to him. Really the whole thing came when we tried talking to Mr. Gasser. There's a gun in that tower. He'd go home on Sunday and I had to look out my living room window and see a gun in the tower for months and years on end. There was a gun there, and we asked him to please take that out. If nothing else just take out the gun and eventually that was done. OK, there's been no time so we've been able to speak. I mean threats were made to my son playing basketball in my yard, accusations were made and Mr. Gasser called the attorney first and then from that point on it Page 89 - Hearing Transcript Regular Meeting of January 4, ]995 Southold Town Board of Appeals has to be someone who can speak for us and somebody to listen to us. It's our home. MR. BLASS: I'm not going to add much to what I said before except that we are - some distortions were made that I'll only address one of them and that is that we're asking the Board as is suggested to allow us to do what we've done because it's been there so long because we illegally did it. We think that the impact on this neighborhood will not be adverse, not because we've been doing it for 14 years, but because the way that part of Love Lane and CR 48 have evolved and the land uses of the contiguous properties including the objectives is such that the museum activity and the tourist site that is becoming, is harmonious with that area. We never said that we think we should be allowed to do it because we've doing it already. That is putting words into our mouth that were never uttered. Our purpose is to see if this activity cannot only work harmoniously with the community but also with the objective. Our offer to provide screening at our expense still stands and we'll certainly cooperate with the Board's suggestion about some kind of compromises. We're very well into that. Very much so. MR. CHAIRMAN: I guess at this particular point we'll recess the hearing until our next regularly scheduled meeting. What we'll ask Carmela do, is give us copies of the case so we'll review it with the Town Attorney and in the interim, if there's anything that you're requesting from us that we may have, Mr. Blass, you're welcome to correspondence with our office and --- . Page 90 - Hearing Transcript Regular Meeting of January 4, 1995 Southold Town Board of Appeals BOARD SECRETARY KOWALSKI: That hearing is February 1st by the way. It's a Wednesday. MR. BLASS: February 1st, we'll be back here and I'll be able to respond more substance I believe to the points that was offered us submission. CARMELA BORELLI: My client wants to know if we're going to be first on the list so - (jokingly) MR. CHAIRMAN: I doubt it. I can go back to the discussion (jokingly). There is some historical background to this. Alright. There is a very nice gentleman that owns a marina in Greenport and he had applied for a storage building. His file started out this large. When we finally finished a year and a half later it took three of us to carry the files in. I'll make a motion recessing that until the next meeting. Thank you very much. (End of hearing). APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Richard C. Wilton BOARD OF APPEALS TOWN oFSOUTHOLD Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1809 NEGATIVE DECLARATION Per Action taken November 2, 1994 by the Southold Town Board of Appeals Pending Applications of WILLIAM GASSER Location of Property: Love Lane, Mattituck Appeals No. 4262, 4261 and 4260 SEQRA determination pertaining to property of WILLIAM GASSER at the S/s of C.R. 48 and the E/s of Love Lane, Mattituck, pertaining to pending applications under Appeals 4262, 4261 and 4260. The Board Members confirmed their recent inspections at the site and indicated that all their concerns were answered through the applicant's communications. It was noted, however, that mitigation measures were necessary to be taken, and agreed to a Negative Declaration with the mitigation measures incorporated therein. On motion by Chairman Goehringer, seconded by Member Dinizio, it was RESOLVED, to declare LEAD AGENCY status, and declare a NEGATIVE DECLARATION with the following mitigation measures incorporated therein, subject to the normal public comment period established under the SE(~RA rules: 1. Drainage pans and oil absorption blankets shall be placed under all vehicles such as under the transmission and engine areas, including active and well as inactive vetLicles. 2. The owner is responsible for daily checks of the vehicles and taking all measures necessary to prevent oil drippings, and maintain good condition of the vehicles. AYES: Messrs. Doyen, Goehringer, Dinizio and Wilton. (Member Villa was absent.) Tiffs resolution was duly adopted. American Armoured Foundation, Inc. A.A.F. ~ $1h A~mtue Ronlu)nkom~ N.Y. 11~g October 10, 1994 Board of Appeals Town of Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, N.Y. 11971 Mailing Adress 2383 5th Ave., Ronkonkoma, NY 11779 (516) 588-0033 Museum: Love Lane Mattituck, NY Re: Appl. Nos 4260-62 (Variances) Dear Board of Appeals; As per your request of letter dated 9-22-94, please find enclosed the Long Environmental Assessment form that you wished us to fill out, along with a copy of the Long Environment form that was submitted on 5-11-92, the review and findings by Cramer, Voorhis & Associates on 9-16-92 and the SEQRA Negative Declaration that we received from the Town Board of the Town of Southold dated 10-6-92. Also enclosed is two addendums per your request. Addendum 1 explains the manner in which we are disposing, storing and controlling all liquid substances from the vehicles. Addendum 2 addresses the concerns of board members concerning odors. The Museum feels and the enclosed SEQRA Negative Declaration from the Town of Southold verifies that the Museum is an environmentally clean operation. If your board needs further information concerning this matter, please do not hesitate to contact us. Thank you Very trul~z,yours~ William F. G~sser, '~'~' Director Tank and Ordnance War Memorial Museum A.A.F. Ronkonkoma, N.Y. 11779 American Armoured Foundation, Inc. Mailing Adress 2383 5th Ave., Ronkonkoma, NY 11779 (516) 588-0033 Museum: Love Lane Mattituck, NY Board of Appeals Town of Southold Addendum 1 Re: Appl. Nos. 4260-62 (variances) The following is a list of chemicals that the museum uses in. quantity: Kerosene: 2-3 gallons at a time. Used to remove grease from parts. Stored in a New York State Fire Code safe dipping tank. Waste Kerosene is removed and disposed of at an EPA recycle center. Dipping tank is located inside museum workshop. Motor, Transmission & gear oil: Minimal amount stored (5 to 10 quarts in all at any given time) Larger quantities purchases when needed. Waste oil removed and disposed of at an EPA recycle center. Gasoline and/or Diesel fuel: Larger quantities purchased when needed. Approx 50 gallons or less stored inside at any given time, which is well below New York State Fire Code restrictions of indoor container storage of 660 gallons. These substances are stored in 5 gallon metal cans (military jerry cans) that are labeled and these cans are stored in accordance with New York State Fire Code regulations. Ail vehicles that are incapable of movement are required by us to have all gas and oil removed. As stated before these substances are disposed of at an EPA approved recycle center. Vehicles that are capable of movement, at present approx. 10 vehicles are completely operable, are fueled before start up and are run until fuel is consumed, as stale fuel is detrimental to these vehicles. Of the approx. 10 vehicles that run there is a total of approximately 100 gallons of gas in them at any given time. The museum has in place a weekly maintenance mechanic that is in charge of checking every vehicle for cleanliness in regards to this very subject. If any leaks are detected, they would first be contained and prevented from entering Tank and Ordnance War Memorial Museum the ground. Any accidental spills would be cleaned up immediately. Then a mechanical check would be made to see why there is a problem and work would commence to fix what ever is wrong gaskets, oil fittings and the like would be replaced. If there was a major problem with the possibility of a large spillage, the vehicle would be drained of that substance until repairs could be made. The Museum has been in operation for 13 years now and to date has not had any problems regarding this matter. We feel that our maintenance check plan is working and the museum is proud to be an environmentally clean operation as previous assessments and reviews have shown. We intend to do the utmost to continue to be a clean operation not only for our pride but also for the pride of the community and environment in which we live. A~F. Slit Aveftue Ronkonlcoml. N.Y. 11779 American Armoured Foundation, Inc. Mailing Adress 2383 5th Ave., Ronkonkoma, NY 11779 (516) 588-0033 Museum: Love Lane Mattituck, NY Board of Appeals Town of Southold Addendum 2 Re: Appl. Nos. 4260-62 (Variances) As stated in the letter attached, the Museum has previously. received a review from Cramer, Voorhis & Associates and the Southold Town Board concerning the environmental assessment of the property and operations of the property in question. The Museum poses no adverse effects to the environment or community including, but not limited to, pollution, noise, traffic, water quality or odors. Of the 33 vehicles that are presently on site only 10 of these vehicles are operable. Of the ten that are operable only three are used on a somewhat regular basis, approx twice or three times a month. These three vehicles are used to move the inoperable vehicles and displays around the yard, they are also used to unload from a tractor trailer a new donation or piece of equipment for display from the army. Also these vehicles are used to help in the restoration of large pieces of equipment. These vehicles are operated only when necessary and at the most for 1 hour on a Saturday or Sunday only and at times are not run for periods of a month or so. The other seven vehicles are only used in exhibition during a tour, which takes place approximately twice a month for a period of less than 20 minutes. Or they are run so that the mechanical aspects of the vheicles can be worked on. Of the 13 years that the Museum has been in operation we have received no complaints from visitors or neighbors concerning an odor problem. Also there are no other activities at the site which generate any odors whatsoever. As an environmentally clean operation the museum does not produce any more or any less odors than any other operation located in a HB district in the Town of Southold including but not limited to a restaurant, a take out or deli, an auto and tire service area, a lawn & tree company, a machine rental establishments, a garden supply or a laundromat. Tank and Ordnance War Memorial Museum PART I~PROJECT INFORMATION Prepared by Project Sponsor NOTICE: This document is designed to assist in determining whether the action proposed may have a significant effect on the environment. Please complete the entire form. Parts A through E. Answers to these questions will be considered as part of the application for approval and may be subject to further verification and public review. Provide any additional information you believe will be needed to complete Part~ 2 and 3. It is expected that completion of the fuji E^F will be dependent on information currently available and will not involve new studies, research or investigation. If information requiring such additional work is unavailable, so indicate and specify each instance. LOCATION OF ACTION Include Street Address Municipality an(~ Counw] NAME OF APPLICAN~T/SPONSOR ' ADDRESS NAME OF OWNER (It different) ADDRESS I susa. Ess TELEP.ONE STATE I ZIP CODE BUSINESS T~LEPHONE ( ) DESCRIPTION OF ACTION STATE ZIP CODE Please Complete Each Question--indicate N.A. if not applicable A. Site Description Physica setting of (~verall project, both developed and undeveloped areas. 1. Present land use: ~.~JUrban I-Ilndustrial J~ommercial ~]Residential (suburban : []Forest [~Agriculture ,~Other 2 Total acreage of project area: '~'~1 APPROXIMATE ACREAGE PRESENTLY Meadow or Brushland (Nor-agricultural) acres Forested acres Agricultural (;ncJudes orchards, cropland, pasture, etc.) acres Wetland (Freshwater or tidal as per Articles 24, 25 of ECl) acres Water Surface Area acres Unvegetated (Ro~:k, earth or fill) ,~1/' (~ acres Roads, buildings and other paved surfaces acres rq, Rural (non-farm) · ~FTER COMPLETION % of s~te Other [Indicate type) acres 3. What is predominant soil typefs)on project site? : ~"""~'IL~ ]~)¢. ~ct_ ~t ~ '~'~ ~. L., ~..O Y dramed ~Poorly drained ~ % of site b. If any agricultural land is involved. DOW many acres of soil are classified within soil group 1 through 4 of the NYS Land Classification System~ ~/~ acres· (See 1 NYCRR 370J. 4. Are there bedrock outcroppings on project site? , ~Yes ~o a. What is depth to bedrock? ~ /~-/6~0 (in feet] 2 L S. Approximate percentage of proposed project site with slopes: .,~0-10% C~ % CilO-15% % ~]15°~ or greater % 6. Is project substantially contiguous to, or contain a budding, site. or district, listed on the State or the National Registers of Historic Places? DYes ~o 7. IS project substantially contiguous to a site listed on the Register of National Natural Landmarks? E]Yes '~o 8. What is the depth of the water table?-~'[o~ {in feet) 9. Is site located over a primary, principal, or sole source aquifer? DYes ~'No 10. Do hunting, fishing or shell fishing opportunities presently exist in the project area? ~Yes ~o 11. Does project site contain any species of plant or *nimal life that is identified as threatened or endangered? DYes ~/No According to C~ ~'ie~l~ ---huff'q- Identify each species ~--//~, ~ '; 12. Are there any unique or unusual [and forms on the project site? (i.e., cliffs, dunes, other geological formations) [~Yes ~No Describe ' I' ' ,qO-L.~.ccc, d?.~.d~,: 6YR ~C;.~I..~ ~"~ 1~. Is the project site presently used by the community or neighborhood If yes. e pla n 14. Does the present site include scenic views known to be important to the community? I--lYes '[5. Streams within or contiguous to project area: ~//~ a. Name of Stream and name of River to which it is (ributary 17. Is the site served by existing public utilities~ ~es ~lNo ~_~'DJ~ ,' r~ - a) If Yes, does sufficient capacity exist to allow connection? ~'f'es {~No L~ · b) If Yes. will improvements be necessary to allow connection? I-'lYes ' ,~o 18. Is the site located in an agricu]tur~al/.,district certified pursuant to Agriculture and Markets Law. ,~rticle 25-AA. Section 303 and 304? ~Yes ~No 19. ls the site located i.n or substantially contiguous to a Critical Environmental Area desiBnated pursuant to Article 8 of the ECL. and 6 NYCRR 6177 ~mYes 20. Has the site e~er been used for the disposal of solid or hazardous wastes? DYes B. Project Description 1. Physical dimensions and scale of project (fill in dimensions as appropriate) a. Total contiguous acreage owned or controlled by pmiect sponsor~-~/ /cl~$c/~/'acres. , ')~? crc,~ e_~- b. Project acreage to be developed: ,4//~ acres initially; ~ acres ultimately c. Project acreage to remain undeve!oped ///,,~/ acres. d. Length of project, in miles: /~//4f. (If appropriate) . e. If the project is an expansion, indicate percent of~xpansion proposed /~'_//¥ f. Number of off-street parking spaces existing ; proposed g Maximum vehicular trips generated per hour f~;,:',~t (upon completion of proiect)? h If residential Number and type of housing units: One Fam~y Two Family Multiple Family Condomin.um Ultimately i Dlmens~ons (in feet) of largest proposed structure /t,//l~ height; ~ widt'h; length. j Linear feet cf frontage along a public thoroughfare proiect will occupy is? ,~-~2 ft. 2. How much natural material (i.e.. rock, earth, etc.) will be removed from the site? C') tons/cubic yards 3. Will disturbed areas be reclaimed? [~]Yes I-lNo I)~/N/A ~q ~' ~'c ~-~ i r ~L ~ d e-~¢lc Igc ,4. a. If yes. for what intend., purpose is the site being reclaimed? b. Will topsoil be stockpiled for reclamation? I~Yes [~No c. Will upper subsoil be stockpiled for reclamation? r-lYes I-INo 4. How many acres of vegetation (trees. shrubs, ground covers} will be removed from site?__'/~'? 4~ acres 5. Will any matu, re/.forest (over 100 years old) or other locally-important vegetation be removed by this project~ []]Yes l~No ' 6. If single phase proiect: Anticipated period of construction ,q-'//'~/ months. (including demolition) 7. If multi-phased: a. Total number of phases anticipated r/~//~ (number}. b. Anticipated date of commencement phase l'_~ month ~ year. c. Approximate completion date of final phase /////~' month /'~,,~',,~ year. d. Is phase 1 functionally dependent on subsequent phases;) I--lyes 8. Will blasting occur during construction? [-1yes ,~o 9. Number of jobs generated: during construction ~; after proiect is complete ~-'~ .~ 10. Number of lobs eliminated by this project ,/~/,~ 11. Will project require relocation of any proJects or facilities? [~Yes [~o If yes, explain (including demolition) F 12. Is surface liquid waste disposal involved? DYes {~o a. If yes, indicate type of waste (sewage, industrial, etc.) and amount b. Name of water body into which effluent will be discharged 13. Is subsurface liquid waste disposal involved? (~es []No Type 14. Will surface area of an existing water body increase or decrease by proposal? I-lYes Explain /'~/~ 15. Is project or any portion of project located in a 100 year flood plain? I-lYes 16. Will the project generate solid waste? [~Yes a. If yes. what is the amount per month A//,~ tons b If yes. will an existing solid waste facility be used? I-lYes If d. Will any wastes not go into a sewage disposal system or into a sanitary landfill? ~-Iyes e. If Yes, explain .~.~/'~. 17. Will the project involve the disposal of solid waste? I-Wes a. If yes. what is the anticipated rate of disposal?' tons/month. b. If yes. what is the anticipated site life? years. 18. Will project use herbicides or pesticides? ~Yes 19. Will project routinetyoroduce odprs (.more than one, hour p~r day)? [~)Yes .-~N0 20. Will project produce operating noise exceeding the local ambient noise levels? ~Yes ~o 21. Will project result in an increase in~nergy use? ~es ~No 22 If water supply i~ from wetly, indica[e pumpin8 capacity gallons/minute. 23. Total anticipated water usage per day gallons/day. ~,n,~;,j L~=, ~ ~ ZCo ~ d 24. Does project involve Local. State or Federal funding? ~Yes ~o ~ 4 L. 2S. Approvals Required: City. Town. Village Board ~Yes r-lNo City, Town. Village Planning Beard ~Yes f~.No City, Town Zoning Board /_Z,~Yes I-INo City, County Health Department .~Yes E]No Other Local Agencies [~]Yes E]No Other Regional Agencies E]Yes E]No State Agencies E~]Yes E}No E]No Type Federal A~encies /~ [~Yes C. Zoning and Planning Information 1. Does proposed action involve a planning or zoning decision? /L~es E]No .:. If Yes. indicate decision required: I~]zoning amendment /~zoning variance [~]special use permit ~]subdivision .~ite plan . E]new/re¥ision of master plan [~resource management plan E]other 2. What is the zoning classification(s)of the site? ~-~c:X-~l I¢~ f~ ~'~,/e ~ S 3. What is the maximum potential development of the site i~ developed as permitted by the present zomng? Submittal Date 4 What is the proposed zoning of the site? //~//~- 6 Is the proposed action consistent with the recommended uses in adopted local land use plans? [~:;es ~No ?. What are the predominant land use(s) and zoning classifications within a % mile radius of proposed' action? 8 Is the proposed action compatible with adjoining/surrounding land uses within a ~/~ mile? ~Yes ~No 9 If the proposed action is the subdivision of land, how many lots are proposed? a. What is the minimum lot size proposed? ////4 10. Will proposed action require any authorization(s) for the formation of sewer or water districts? L~Yes '~o 11 Will the proposed a<~tion create/ia demand for any community provided services (recreation, education, police, fire protection}? ,~. Ye s a. If yes, s existing capact,/ sufficient to handle projected demand? ~Yes .12 Will the proposed action result in the generation of traffic significantly above present evets? E]Yes a. If yes. is the existing road network adequate to handle the additional traffic? ~Yes~/~,'~,No D. 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 your proposal, please discuss such impacts and the measures which you propose to mitigate or avo,d them. .- E. Verification I certify that the information provided above is true to the bes[ of my knowledge. It the action is in the CoaslaJ Area, and you are a state agency, complele lhe Coastal Assessment Form betore proceeding with this assessment. ~ ~ 5 ONGIONI & BORRELLI ATTORNEYS AT LAW 403 F[~)NT STI~EET · P.O.~OX 562 288 PANTIGO ROAD E,~ST HAMPTON, NY 11937 TEL 15161 324-8282 FAX (516) 324~8283 i994 Dcccmbcr12.1994 Mr. Gcrard P. Gochringcr Chairnlau ZoRiRg Board of Appeals Soutbold Toxx n Hall 531195 MaiR Road P. O. Box 1179 Southdd. Ncx~ York 11971 Re: ApplicationsofWilliam Gasser Nos 4260. 4261 and 4262 Negalive DeclamlioR - SEQRA Dcar Mr. Gochringer: As xou knoll. `.lc reprcseRI DiaRc 3Rd Fraak Amnlirali. ibc ar[iaccul lard owners Io tile Gasser propcrt). This loller is submilled ,,',ill; regard to Iht Negative Declaraliou `.xilh Rliligafion measures rendered b5 thc Board on Novculbcr 2. 1994 The applicaRl submitted a Long EnviromncRtal Asscssnlenl form to this Board u ilh his letter of Oclober 10. 1994 togclller witb a copy o£ file Town Board's prior Negative DeclaralioR rcgardiug his rcqucslcd zone charge 3nd a copy o£ Ihe findings o[' Cramer. Voorbis & Associales also prepared with regard Io Ille prior application for a ZORC change. This Board has required thai Ihe applicanl meet Ix`.o miligaliRg ineasures for thc negative declaration lo lac effective The applicant must place pans aRd oil absorption blankets nndcr all vehicles (active and inaclivc) and mnst inspccl thc vehicles on a daily basis and take all measures nccesm~' to prevent oil drippings. Thc applicaRt m his loller of October 10. 1994 advised that ueckl) maintenance checks arc made of Ibc vehicles. As tl~c Board is well aware. Ihis "museum" is not o~n to thc public on a daily basis. In addilion. II,ere is no fi~ll lime slaffal the site on a daily basis. It appears Ihcrefom Ihat it ~ ill be impossible for Iht applicaRt Io compb with Iht mitigatiou measure of dali) checks of thc vehicles. The weekly maintenance schedule nou in cffcct is simpl) inadequate to deal with dm poteutial damage of a significanl oil spill from one or morc of thc clammd tcu operalional vehicles m which gas aud oil are maintained, h~ addilion, givcl~ Ihis applicanl's past non-compliaRcc u ilh tl~c /mfiRg code. we fail to see how Ihe Toxul xx ill be able to moRilor Iht miligalion measnres to insure Ibal they are being adhered Io by thc applicanl. With rcgard Io die cn'~ iromncnta[ significauce of this silo. I call Iht Board's attcnliOR thc letter of Cralncr. Voorhis & Associalcs dated Scptcmbcr 18. 1992 and allachnlcnt snbraiilcd Io Ms. Jttdith Tcr~' iu Board's attentioR to thc [act thai SEQRA requires consideratiou of lard use. zoning isstics and community impacls ]R facL Ibc) mcommeRded againsI Ihc subscquenl aclioR of the Toxxn Board ia rczoning that poflion oflhc silo Ihcn zoned residential to LI because it could have impacl on Ibc comnumily permanently. Crauler. Voorbis m addilion Rotcd lhat the change of zone would not ~ consislenl ~uth Ibc recommendations ofll~c Master Plan. While thc ZORC change ~as cvcutuall} grauled b5 Ibc Ihcu couslitulcd Tow n Board. this Board is not dix cslcd o1' i(s dui), 1o im csligatc thosc same issucs in com~ection with its SEQRA dclcrmination regarding thc requcstcd x arianccs. Cramcr Voorhis determined that thc ptoposcd zone change xxonld conflict with officially adopted plans or goals for thc Toxxn and Ihal it xxould scl at~ imporlaut precedent £or future projects. The requested relief- tl~e three requested xarianccs - coupled uith a prior request for relief regarding signs certainly conflict with adopted plaus and goals and will set an important precedent for fnlurc projecls. I am euclosing here:vi:l~ a cop.',' cf Cramer Voorhis Long F ~.F P:lr! l! and I call ~,his Board's n~.tcntion to the Conciusion contained thereto as ils ¢ontcnls m'¢ applicabie to Iht instant request for mlicl'cspccially that request xxhich asks this Board to allow open slo~agc ofx~ar machines. Cramcr Voorhis slaled: "Issues regarding zoning are coniplcx, involx mg change Io conl~tltn~il.x character, divergeuces from land use plans and preccdeat setting natnre of an aclion. Based upon the discussion included in tbe appropriate section above, there is a recognized small intrusion into a rcsidcnlial ama as well as some recognizcd prcccdcnt set as a result of this aclion. Thc duralion of this impact is considered permanent for thc purpose oflhis discussion: ....Thc impact can be conlrolled Ihrough silc plan rcvicxx utiliziug setbacks, buffering, and olber land usc control techniques x~ ith regard Io thc dcvclopmcnl ou Ibc site as well as ac[iaccnt sites... Il is recommended that lhc decisioll conlanl reasoilablc lllcasul'CS lo nlininlize environlllcnlal i~upacls to thc maximum extent practicable....". These applicatious must be vicxxcd m their eutircl.x and their combined effcct on Iht community and they must be viewed through thc time lens of Ibis applicants repeated and continued x iolation of the zoniug code. Reasoaable measures to minimize cm ironmenlal impacts are riel practicable for repeat offenders. Much more stringenl requirements. Ihal can bc enforced or whose violaliou arc quite visible Io Ihe general pnblic, must be imposed as this Board's decision xx ill effccl land usc and xx iii scl precedent. Thm~k 3ou for your considcralion of our objections. Wc ask Ihis Board Io recousidcr ils ucgative declaration or in the alternative to impose more slringeul, cn£orceablc safeguards with regard to both the usual aud also thc more compelling acsthctic issues of impact on Ihe community. clb/ns cc:Frank & Diane Ammirati ammirati:zbaseqra.ltr Very truly yours, ONGIONI & BORRELLI Carmela L. Borrelli MARIE ONGIONI CARMELA L. BORRELLI ONGIONI & BORRELLI ATTORNEYS AT LAW 403 FRONT STREE'i' . P.O.BOX 562 GREENPORT, NEW YORK 1 1944-0562 TEL. (516)477-2048 . FAX(516)477-8919 288 PANTIGO ROAD EAST HAMPTON, NY 11937 TEL (516) 3249282 FAX [516) 324-8283 October 25, 1994 Mr. Gerard P. Goehringer, Chairman Zoning Board of Appeals P. O. Box 1179 Southold, New York 11971 Re: Variance Applications American Armoured Foundation Dear Mr. Goehringer: On July 22, 1994 the Enforcement Officer, Mr. Gary Fish, after literally years of our complaints, finally issued a Notice of Disapproval to the above party thus requiring the applicant to appear before your Board for several (3) variances. The requisite applications were filed on August 1, 1994 together with a short environmental assessment form. By letter dated September 22, 1994 you have requested the applicant to supply a Long Environmental Assessment form and to address specific questions with regard to potential hazardous waste spills among other things. As you know, this applicant filed an application for a variance earlier this year which we vigorously opposed on substantive grounds and in addition opposed the segmentation of the requested for relie£ We claimed, and our contentions were ultimately confirmed, that this applicant had other violations at the site and should not be allowed to proceed with only one application for a variance. In fact, a review of my records indicates that on July 25, 1994 I wrote to Mr. Fish advising that on the day he issued the notice of disapproval new equipment was moved into the site and a camera was installed on the already illegally high fence. As you can see from the above, and what a review of the multiple Town files regarding this sight will confirm, this applicant has functioned since 1981 illegally. In fact in February, 1992, Mr. Gasser filed an application with your Board based on a Notice of Disapproval issued four (4) months earlier but never renewed the application after it was ri~turned to him as incomplete. I am sure that it is as obvious to you as it is to me, that this applicant stalls, delays, obfuscates and otherwise does nothing to remedy violations of the law until mandated to proceed by some authoritative person or tribunal. It is now three (3) months since the most recent Notice of Disapproval, two (2) months since the application was filed and two (2) weeks since your last request for more information but the latest note in your file indicates that the applicant is not as yet ready to submit the Long Environmental Assessment Form because of the hospitalization ora family member. While I am sympathetic to Mrs Gasser's problems, l ant more sympathetic to my clients who have endured this illegal operation for many years without relief fi-om the Town of Southold. By copy of this letter to the Town Attorney and Enforcement Officer, I request that the applicant be issued a summons for the violations which can be adjudicated in the" Town Court. The usual adjudication of such matters is a guilty plea with imposition of fines with a conditional discharge if the defendant proceeds before the appropriate board in lieu of ongoing fine assessments. It is in my belief that the only way to insure that this applicant proceeds with this matter is to force the applicant to proceed. Very truly yours, ONGIONI & BORRELLI ns/clb Carmela L. Borrelli Laurie Dow& Esq. Southotd Town Attorney Town Board Mr. Gary Fish, Enforcement Officer TOWN OF SOUTItOLD BUILDING DEPARTMENT TOWN CLERK'S OFFICE SOUTtIOLD, N.Y. NOTICE OF DISAPPROVAL To .. WILLIAM F GASSER ...... 2383 5th AVE. RONKONKOMA, NY I 1779 Date JULY 12, .... 19 94 PLEASE TAKE NOTICE that your application dated .... 0lib,... J.3, ............... t9'}9.4... forpermit to ERECT A TOWER, A FENCE 7' IN HEIGHT, OUTSIDE STORAGE Location of Property 640 LOVE LANE MATTITUCK hiGfo ~id ....................... 's'de; ; ............................ County Tax Map No. 1000 Section 140 Block 02 Lot 16 Hamlet Subdivision ................. Filed Map No. : ............... Lot No .................. is returned herewith and disapproved on the following grouuds I. TIlE ACCESSORY TOWER DOES NOT CONFORM TO Tm! REAR & SIDE YARD SET BACK REQUIREMENTS AS SET FORTH IN ARTICLE IX 100-91 C(I). 2. THE ItEIGItT OF THE FENCE (AT APPROX. 7') DOES' NOT CONFORM TO THE REQUIRED HEIGHT OF A FENCE IN AN HB DISTRICT, ARTICLE XXIII ~00 231 .A.. 3 OUTSIDE STORAGE OR DISPLAY IS NOT PERMITTED IN THE liB DISTRICT ARTICLE IX 100-93. ' ................. ACTION REQUI .' ...................... . ........................... B; THE ZONING iOARD OF AP PE;LS "' //~ild ing .nspcctL~ ....... J RV 1/80 Town of Southold Building Department Town Hall Southold, N.Y. 11971 Attention: Mr. Dear Mr. Fish, Gary Fish Please find enclosed a copy of the Southold Town Planning Boards May 16th determination of changes that they feel necessary in completing our site plan approval. Also enclosed is the the following items are necessary. building application that should cover that determinations by your department 1. Fence with barbed wire exceeds 6 foot height limitation in front yard. 2. Electrical conduit on top of metal chain link fence requires approvals. 3. Accessory Tower must be five feet from all property lines. 4. Town code 100-93 indicates that all display and storage must be confined to fully enclosed buildings on the premises. Please find application and all necessary paperwork that I feel is necessary to make a determination on the above. If further information or paperwork is necessary, do not hesitate to contact me. Thank You. ~/e'rely, ~ ,- .~ /'/~ren A. Gasser, DirectOr Tank and Ordnance War Memorial Museum FORM NO. 1 TOWN OF $OUTHOLD BUILDING DEPARTMENT TOWN HALL SOUTHOLD, N.Y, 11971 TEL.: 765-1803 Examined ............. .".., 19... Approved ................. 19... Permit No ............ ";?')A~D OF liEALTII ......... !~ SETS OF PLANS SURVEY CIIECK ................... SEPTIC FO~tl NOTIFY .' CALL t'IA I L TO: Disapproved a/c ..................................... (Building Inspector) APPLICATION FOR BUILDING PERMIT INSTRUCTIONS a. This application must be completely filled in by typewriter or in ink and submitted to the Building Inspector, with 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 must be drawn on the diagram which is part of this appli- cation. 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 issued a Building Permit to the applicant. Such permit shall be kept on the premises available for inspection throughout the work. e. No building shall be occupied or used in whole or in part for any purpose whatever until a Certificate of Occupancy shall have been granted by the Building Inspector APPLICATION IS HEREBY MADE to the Building Department for the issuance of a Building Permit pursuant to the Building Zone Ordinance of the Town of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations, for the construction of buildings, additions or alterations, or for removal or demolition, as herein described. l'l~e applicant agrees to comply with all applicable laws, ordinances, building code, housing code, and regulations, ]dmit authorized inspectors on premises and in building for ne~es~ry,~ec~/~.~ ~ ~'3 and to _. ' ....... / (Signature of applicant, or.name, i.f a corporation) ............. x.,. ~..~. ~/.L~ ~ .~..y./.I 'Jr7 (Mailing address of ap' plica' nt')' ' ' ~ ..... State whether applicant is owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or builder. Xlame of owner of premises ...- ' - (as on the tax roll or latest deed) if applicant is a corporation, signature of duly authorized officer. (Name and title of corporate officer) Builder's License No... .~./.~. · Plumber's License No ................... Electrician's License No. ~'~f- Other Trade's License No ...................... Location of land on which proposed work will be done· 'qo L L ..................................... ...........° ° .-'d...,'"f. .k,, · · · house Number Street Hamlet " County Tax Map No. I000 Section · .... ............. Block .................. Lot . .. '. . . Subdivision ' ...................... Filed Map No. . Lot (Name) ..................... State existing use and occupancy of premises and intended use and occupancy of proposed construction: a. Existingu,e and occupancy ~.0.~..~.~..~. .... b. In,ended use and occ,,pan y .......... Re ............... Reran, ' ....... ,'~.da-,on ......... Alteration ........... Demolition '. .~ ...... · · · · ::. ...... Other Work ......... 4. Estimated Cost (Description) 5. If dwelling, number of dwelling units · (to be paid on filing this application) If garage number of cars ............ : · · Number of dwelling units on each floor 6 If business .......... · , commercial or mixed occupancy specify natur;'a'n'd ...................................... 7 Dimensions of existing structures ' extent of each type of use Height if any: Front Rear ..................... Numl~er ............................. Depth ............... of Stories .............. '~' Dimensions of same struct'ure with alterations{;r' ............................................ '- · Depth addition, s: Front ~ Rear ....... ...................... Height .......................... 8 Dimensions of entire new ..... Number of Stories ....... · construction: Front '" Height Rear .................... Number of Stories ............... ' .............. Depth 9. Size eliot: Front ............... ....... Rear ...................... Depth 12. Zone or use district ,n which premises are taunted .......... ~.~..¢ 'J-.. ~iU.$..tie..'.~. ..................... 13, Does proposed construction violate any zoning law, ordinance or regulation: ... i ............................ 14. Will lot be regraded .. '. .... ?;./~; ..... .. ~ ........ Will execs fill be re ye' from ' · ' ,N, ame of Owner of premises /~../.}.'¢r-.~.~% ne.- .~ .~g~l.~h.j, 2[' m~ ~ premises._ Yes ~ ,amc of Architect .... ,~'//9 ......... ,,~ua. ress v~. s.~.,~. ~/~.e4.~g' · Phone No .c?'.g.r-9'7. V//. ~ Name of Contractor .. '~'~.'].~ .......... 5'".' ,aa, a. ress ................... Phone No ..... j '" 15. Is this nroner,-., ..~',4.~, 'c.,-,.....~ .......... : · · · .'~onress ..... m. ., ' ....... · .., 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 corset lot. 7A'TE OF NEW YORK, )UNTy OF S.S (N fi id ig .................. ave named· amen ndiv uals ningcontract) being duly s~vorn, deposes and says that he is the applicant is the ...... (Contract nt ........... po ate offic ) .................... or, age , cot r er, etc. ' ...... said owner or OWners, and is duly authorized to perform or have performed the'said work and to make and file this lication; that all statements contained in this application are true to the best of his 'knowledge and belief; and that the k will be performed in the manner set forth in the application filed therewith· )ru to before me this . . .......... ? ......... day of.. · .......... , 19 ary Public .................... .5'?.~"..~(~.. County - t/ Commission Lxpi}e$ nov. I, 19 q/ (Signature of applicant) January 3, 1995 Southold Town Hall Zoning Board of Appeals Attention: Mr. Gerard P. Geohringer, Chairman Dear Board of Appeals, This letter is to inform the Southold Board of Appeals that I, Thor Pettersen have been on the staff of American Armoured Foundation, Inc. since May 24, 1994. My duties at the museum include, but are not limited to, security, watchman and overseer of the museum on a daily basis. My inspections of the museum are conducted during daylight hours and takes me approximately 30 to 45 minutes to inspect the entire site. The museum has not set a required time for my inspections due to security measures. The following is a list of functions that I perform during my inspections. Unlock entrance gates and walk south yard checking all vehicles for spillage and check all drip pans. Unlock and turn off alarm at entrance of building. Check all displays inside building plus heating system, water pipes, electrical status and a thorough inspection of building. Then I close up the museum and proceed to inspect the North yard. I once again walk the North yard and inspect vehicles and drip pans. I am well versed in the safe handling and disposing of any liquid material that may pose a problem or may have accumulated in the drip pans. I have also been instructed to contact Mr. william Gasser, museum director, if during my inspections I find any potential problem. At this time a sound and responsible way to deal with that particular problem will be put into place immediately. Along with the above duties I am on record with both the Southold Police Department and the alarm company's central station as first response person to any burglar or fire alarms. Sincerely, Thor Pettersen American Armoured Foundation, Inc. A.A.F. N.Y. 11779 January 3, 1995 Mailing Adress 2383 5th Ave., R onkonkoma, NY 11779 (516) 588-0033 Museum: Love Lane Mattituck, NY Southold ~own Hall Zoning Board of Appeals Southold, N.Y. 11971 Attention: Gerard P. Goehringer, Chairman RE: Mitigation measures. Dear Board of Appeals, As per fax dated December 19, 1994 please be advised of the following measures adopted by American Armoured Foundation, Inc. to meet the mitigation measures set dow~ by the Board of Appeals to receive a SEQRA negative declaration: Drainage pans and oil absorption blankets: Ail vehicles that presently contain gas and oil have already had drip pans installed under them. The remaining drip pans and oil absorption blankets will all be in place within the maximum of 30 days from this meeting. These drip pans will be green rubbermaid type containers, as we felt these were the least obtrusive item that could be found to fit the intended job use. We also do not want the Museum to become an eye sore with so many drip pans around. Each pan will contain a weight to weigh these pans down so that they are not blown around the yard by the wind. The oil absorption blankets will be place under each drip pan. Daily checks: Please find attached a conformation letter showing that American Armoured Foundation has on staff a reliable, responsible and capable person that has and will continue to make daily checks of all display vehicles. As an environmentally safe and responsible organization, American Armoured Foundation, Inc. has no problems with adhering to the mitigation measures being set by this board and the museum will continue to take any and all measures to prevent any contagions from entering the ground. The museum has been working on a regular basis to maintain the vehicles in good condition and to exhibit them to the public in the best condition possible. Tank end Ordnance War Memorial Museum PETITION TO THE SOUTHOLD TOWN ZONING BOARD REGARDING THE MA TTITUCK TANK MUSEUM The American Armored Foundation Tank Museum building in Mattituck currently violates several zoning rules for the hamlet that others in the area obey. It has no Certificate of Occupancy. The Tank Museum has requested variances from the Zoning Board on three items: 1. For the use of a tower closer to the rear and side yard than permitted. 2. For outside display of tanks and cannons which would otherwise have to be housed inside a building to conform to zoning. 3. For fences that are higher than permitted (in order to include the barbed wire at the top). We the undersigned oppose the request of the Tank Museum for these variances and ask that their use of the property be made to conform to the existing hamlet zoning requirements. Sign Full Name: t Print Full Name: I Full Address: IDate: PETITION TO THE SOUTHOLD TOWN ZONING BOARD REGARDING THE MATTITUCK TANK MUSEUM The American Armored Foundation Tank Museum building in Mattituck currently violates several zoning rules for the hamlet that others in the area obey. It has no Certificate of Occupancy. The Tank Museum has requested variances from the Zoning Board on three items: 1. For the use of a tower closer to the rear and side yard than permitted. 2. For outside display of tanks and cannons which would otherwise have to be housed inside a building to conform to zoning. 3. For fences that are higher than permitted (in order to include the barbed wire at the top). We the undersigned oppose the request of the Tank Museum for these variances and ask of the property be made to conform to the existing hamlet zoning that their use requirements. Sign Full Name: Full Name: Full Address: ~7 A~ PETITION TO THE SOUTHOLD TOWN ZONING BOARD REGARDING THE MATTITUCK TANK MUSEUM The American Armored Foundation Tank Museum building in Mattituck currently violates several zoning rules for the hamlet that others in the area obey. It has no Certificate of Occupancy. The Tank Museum has requested variances from the Zoning Board on three items: 1. For the use of a tower closer to the rear and side yard than permitted. 2. For outside display of tanks and cannons which would otherwise have to be housed inside a building to conform to zoning. 3. For fences that are higher than permitted (in order to include the barbed wire at the top). We the undersigned oppose the request of the Tank Museum for these variances and ask of the property be made to conform to the existing hamlet zoning that their use requirements. Sign Full Name: I Print Full Name: [ Full Address: {Date: PETITION TO THE SOUTHOLD TOWN ZONING BOARD REGARDING THE MA TTITUCK TANK MUSEUM The American Armored Foundation Tank Museum building in Mattituck currently violates several zoning rules for the hamlet that others in the area obey. It has no Certificate of Occupancy. The Tank Museum has requested variances from the Zoning Board on three items: 1. For the use of a tower closer to the rear and side yard than permitted. 2. For outside display of tanks and cannons which would otherwise have to be housed inride a building to conform to zoning. 3. For fences that are higher than permitted (in order to include the barbed wire at the top). We the undersigned oppose the request of the Tank Museum for these variances and ask of the property be made to conform to the existing hamlet zoning that their use requirements. Sign Full Name: I Print Full Name: I Full Address: fDate: ~ ' ~ J / . i , . , PETITION TO THE SOUTHOLD TOWN ZONING BOARD REGARDING THE MA TTITUCK TANK MUSEUM The American Armored Foundation Tank Museum building in Mattituck currently violates several zoning rules for the hamlet that others in the area obey. It has no Certificate of Occupancy. The Tank Museum has requested variances from the Zoning Board on three items: 1. For the use of a tower closer to the rear and side yard than permitted. 2. For outside display of tanks and cannons which would otherwise have to be housed inside a building to confG rm to zoning. 3. For fences that are higher than permitted (in order to include the barbed wire at the top). We the undersigned oppose the request of the Tank Museum for these variances and ask of the property be made to conform to the existing hamlet zoning that their use requirements. Sign Full Name: t Print Full Name: J Full Address: [Date: PUBLIC HEARINGS BOARD OF ZONING APPEALS TOWN OF SOUTHOLD February 1, 1995 (7:30 P.M. Hearings Commenced) P R E S E .N T: HON. GERARD P. GOEHRINGER Chairman SERGE J. DOYEN, Member JAMES DINIZIO, JR. Member ROBERT A. VILLA, Member RICHARD C. WILTON, Member LINDA KOWALSKI, Clerk-Assistant to Board Page 2 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals INDEX APPLN. # APPLICANT PAGES 4294 4295 4296 4260 - 4262 MR. & MRS. JOSEPH DUGGAN MICHAEL RACZ and GAIL DESSIMOZ CHARLES TYLER, JR. WILLIAM F. GASSER 3-10 10-17 17-29 30-61 Page 3 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals 7:30 P.M. Appl. No: 4294 - MR. AND MRS. JOSEPH DUGGAN MR. CHAIRMAN: Request for Variance regarding addition which is to be within 75 feet of the bulkhead and with lot coverage at approximately 27% for all building and construction. 330 Snug Harbor Road, Cleaves Point Section III, Greenport. I have a copy of the survey from Roderick Van Tuyl P.C., dated June 22, 1983, updated February 23, 1993 and amended January 8, 1985, indicating a two story frame house, approximately centrally located on the lot 35 feet from Snug Harbor Road. The nature of this application is a deck, a variable 10 and 12 feet wide, running the majority of the house on the west side facing Dawn Lagoon and I have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. Is there somebody that like to be heard? How are you tonight Sir? Would you state your name for the record. CHUCK BOWMAN: Sure, Chuck Bowman, President, Land Use Environmental, representing Joseph Duggan. First of all I have an affidavit of Posting. MR. CHAIRMAN: Thank you. CHUCK BOWMAN: Dawn Lagoon is a dug canal, a private dug canal. We do have a waiver from the Board of Trustees, the Town of Southold permitting this deck to be installed. We also have a permit from the New York State Department of Environmental Conservation. The house in question, Mr. Duggan's house, preexists the 75 foot setback requirement and is a preexisting non-conforming lot. As far Page 4 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals as the size of the lot it's 12,000 sq. ft. plus or minus. There's a practical difficulty in that Mr. Duggan cannot place a deck and this is a moderately size deck 10 ft. wide to 12 ft. wide and anywhere else behind this property to produce the amount of variance that is required. If you refer to the survey you'll see that the majority of the deck varies between 51 and 45 ft. from the bulkhead. It's only the north easterly section of it where a boat slip comes into the property that it reaches the maximum of 19 feet from the bulkhead. All the area seaward of the house between the bulkhead and the house is ornamentally landscaped at the moment. There is really no impact to the creek or per se and I can say there is a numerous decks in any area that are similar to that which is proposed from Mr. Duggan and if I can leave some photographs with the Board I'll refer to them. One house on Snug Harbor Road is owned by the Bunger Family and that house is about 37-1/2 feet from the bulkhead, one which I'm very familiar with is Mr. Collins's house which is on the opposite side of Dawn Lagoon and I represented Mr. Collins and the permit was, a variance was granted for that bulkhead which is about 47 feet from the existing bulkhead, a third one is the Simkin house which is, we didn't get to measure it but I would, judging from the photograph it's actually about 15 to 20 feet from the edge of the bulkhead and the last one was the Lichten house, and that's about 37 feet from the bulkhead and again you know these houses were all constructed prior to that 75 foot setback requirement so they have various areas as a backyard as stated in ti~e application that the house now is only 35 feet from the Page 5 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals front yard. They are minimal size yards so really this is the only place that Mr. Duggan can put his deck and I'll leave the copy of the photographs. MR. CHAIRMAN: Thank you. Let's see if anybody has any questions that they'd like to grill you at. Hi! JOSEPH DUGGAN: Hi! My name is Joseph Duggan. MR. CHAIRMAN: How are you? JOSEPH DUGGAN: Good. When I built the house in 1985, actually when I put the bulkhead in 1982, I lost approximately 12 feet of property because I have a, I had an egress in front of the house and what they did if you take a look at those photographs you can see on one of them you can see the setback where the bulkhead was pulled back 12 feet. OK, so at that point what I had was I had a bulkhead and then I had an egress and they weren't sure whether they were going to give me a drift for a floating dock so they told me that I could have a boat slip. So, that's how I ended having a boat slip OK. It wasn't even something that I wanted, OK. MR. CHAIRMAN: You have no intentions of incorporating this deck into your house as opposed to moving it or any of that nature? JOSEPH DUGGAN: Not at all, I just want to have a place like you know right now we put a picnic table outside and it's all mud and dirt you know. Half the people sit there so I just want to have a place where I can put a table and chairs and stuff like that. MR. CHAIRMAN: Does anybody have any questions of either the applicant or the consultant? Page 6 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals MEMBER VILLA: Yes, that last comment you said mud and dirt. think you got probably the best lawn I have ever walked on. JOSEPH DUGGAN: really work on it, summer. You, you got to see what it looks like when we what it really looks like in the middle of the MEMBER VILLA: It's hard to believe. I mean I've played on a lot of golf courses. I've never seen a lawn that thick in my life, so you talk about mud and dirt I just, I can't quite believe that. CHUCK BOWMAN: I think Mr. Duggan would rather not walk on the lawn. MEMBER VILLA: building a deck, Well that was some questions I had. Now with you what are you going to do with that grass that's there? Is it just going to stay? Are you going to rip it up, or what? JOSEPH DUGGAN: Well, the grass under the deck will just stay there. It's not going to survive under the deck. MEMBER VILLA: And you're not going to rip up the rest of the grass? JOSEPH DUGGAN: That's correct. MEMBER VILLA: Now, your survey here is going dimensions but that's basically to the house, that's not counting tile deck, right? You're showing 45 feet plus or minus but, the deck is coming out another I0 feet. JOSEPH DUGGAN: No, the 45 feet is to the deck and is different MEMBER VILLA: That's not where the arrow is. Page 7 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals CHUCK BOWMAN: JOSEPH DUGGAN: CHUCK BOWMAN: It's 45 feet. I'm sorry, you're correct. The 19 feet is to the deck, right, the 45 feet is to the house so it would be 35 feet. The 51 feet is to the house. It would be 41 feet. MEMBER VILLA: So, a lot of those examples you actually quoted are actually a little bit more than what is there now? CHUCK BOWMAN: Slightly, yes. BOARD SECRETARY KOWALSKI: It's 41 feet or how many feet is the setback? CHUCK BOWMAN: The setback would vary between 35 feet, 41 feet and the closest being 19, 43 feet. BOARD SECRETARY KOWALSKI: OK, thank you. MEMBER VILLA: Is there anyway you can cut that deck off so we could maintain like a minimum of 25 feet? CHUCK BOWMAN: We went through this with DEC and also with one of the Trustees for their waiver. A 10 foot wide deck is really a It's not like we're proposing a 18 foot or 15 minimal size deck. foot deck. MEMBER VILLA: I realize that but you're going across the whole back of the house where you know if you want to put a table out you got, you probably still got 50 feet of deck there. CHUCK BOWMAN: Yeah, I still believe that if you, if you look at the decks that have been granted along this whole canal, you'll see that this deck even in area is equal to a less than the decks that Page 8 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals have, that have been granted. The closest point is ]9 feet and that is because of the boat slip. MEMBER VILLA: I realize that. We had another one similar to this and I think we .... CHUCK BOWMAN: And frankly so all of the other ones exceed that closest point if you will to the bulkhead. MEMBER VILLA: Now, we had another one with the boat slip and I think we stayed with 25 feet from the nearest edge. CHUCK BOWMAN: Well, I can say you know, my familiarity with that Dawn Lagoon which is a you know a dug canal, it's not a natural waterway it seems that the whole shoreline is highly developed by Mr. ~Duggan has a landscaping and native landscaping if you will further go down in front of the bulkhead. Many of the homes have lawn and turf areas that are greater that slope right into the lagoon. So, I think already we're starting at a point that is better than many of the other properties. I believe that's the point of the 75 foot setback. You know you want to keep activities away from the waterfront because they may infringe or adverse the flex of the water quality and in this case you know we have already taken care of that through DEC previous DEC purpose that have required the establishment of that landscaped area the retaining wails that contain in a storm water. BOB VILLA: You're saying that it doesn't slope down to that bulkhead? CHUCK BOWMAN: No, I'm saying that the vegetation is there and the way the retaining walls having been setup are to intercept any Page 9 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals overland flow of water before they get there. You'll see the natural vegetation that's there in ( ) if you will before it gets down to the bulkhead. MEMBER VILLA: CHUCK BOWMAN: It still slopes that way though. Oh! Absolutely. The point I'm trying to make is that the storm water is interceptive as oppose to some of the other homes. Mr. Collins for instance you know just slopes directly his lawn and then flows over the bulkhead. MR. CHAIRMAN: While you're still there just ]et me ask if anybody has, anybody else like to speak in favor of this application? Anybody like to speak against this hearing? I guess that's about it. We will attempt to address this tonight. CHUCK BOWMAN: Thank you. JOSEPH DUGGAN: Can I just say one more thing? See, the area where the, where the deck is close to the bulkhead happens to be right off my dining room, OK. If that had been the other end of the house I would have, I'd have no problem. I could move it, it would be easy to do. But, to have a deck to have it come out of your living room doesn't do you any good when your living room is on the other end of your house. MR. CHAIRMAN: Right. JOSEPH DUGGAN: You see it may not ) in the house off the dining room otherwise I'd be more than willing to move it you know. MR. CHAIRMAN: The dining room is back of the garage? JOSEPH DUGGAN: Yeah, the dining room is there and the garage is over to the right, OK, that, that's the only reason I, you know --- Page 10 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals MR. CHAIRMAN: It's important to you. JOSEPH DUGGAN: Yeah, that part, you know, I mean, I mean at that point the deck is only going to be 12 feet wide so it just about gives me the 12 feet, I don't think, just, just about enough room to have a table and chairs, OK. I mean if I could do it and make it a little bit smaller if that would help any, I, I would but, I don't know if I can get a table and chairs on then, you know, OK. MR. CHAIRMAN: Alright. JOSEPH DUGGAN: OK, thanks. MR. CHARIMAN: Thank you. Hearing no further comment I'll make a motion closing the hearing reserving decision until later. MEMBER WILTON: Second. MR. CHAIRMAN: All in favor? BOARD MEMBERS: Aye. 7:41 P.M. - Appl. No. 4295 - MICHAEL RACZ and GAIL DESSIMOZ MR. CHAIRMAN: Request for Variance to locate accessory building (pool house a/k/a bath house) partly in the side yard area at 4255 Private Road #10 (a,k,a Hallock Lane), Mattituck. Subject to final resolution for lot line approval and subdivision by the Southold Planning Board. (Fluttering sound on tape) KENNETH ABRUZZO: Kenneth Abruzzo from the office of Young & Young representing the applicant, brought up an affidavit of posting if you would. MR. CHAIRMAN: Sure. Thank you. Page 11 - Hearing Transcript Regular Meeting of February 1, Southold Town Board of Appeals 1995 KENNETH ABRUZZO: First I would like to say that at the last regular meeting of the Planning Board, Town Southold Planning Board, they have approved the alteration and boundary lines so that part of the application has been taken care of and approved. The only condition being filing the deeds that the applicant has taken care of. When we were here before you the last time we, we had a pool and a proposed pool house that was located in the side yard and since that time we have indicated that the actual pool itself can be located in the rear yard of this piece of property which would not necessitate an appeal to this Board. The applicant would like their pool house and I might stand on that a pool house, greenhouse structure located in their side yard and adjacent to that pool. The applicants really want and you have the plans in front of you I hope, like to, one of your concerns was the height of the structure and the size of it and that it could not be used for living structures, that you had problems in the past with people putting hugh pool houses up and the next thing you know there's eight families that are able to live in it. MR. CHAIRMAN: Well the word is cabana. KENNETH ABRUZZO: Cabana, a communal cabana as you might say. But, this structure as you see is going to be proposed to be wide open with glass enclosures that she'd like to hang plants in and grow ferns and things like that and the two enclosures on either end of this structure, one for changing of the pool and the other for the bathroom to the pool are very small 6 x 8 foot stone structures, decorative structures and the rest of it will be open to the sunlight Page 12 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals and daylight. I know that's what the client would like and I thought that this plan also would take into consideration some of your, what's the word I'm looking for, some of the concerns that you may have had about this being a habitable structure on a full-time basis. MR. CHAIRMAN: Alright. Do you have any idea if the building is going to be built lengthwise to the pool or is going to be built across? In other words, you know. KENNETH ABRUZZO: I think the lengthwise is going to be perpendicular to the pool. They'll be 25 feet against the 20 foot pool. MR. CHAIRMAN: Alright and what would be the setback then from the property line? Will it be about the same, 26 feet, or? KENNETH ABRUZZO: About the same. If you didn't hold us to the number we could make it the same but we'd like to sort of center it on there, so it might be 23 feet or 24 feet from the side lines but the more we can center it on the pool we would like that. I think the, the yard, there is a small amount instead of 15 feet so we're going to well exceed that but it'll be in the twenties for sure, 23, 24 feet. MR. CHAIRMAN: Alright and you're going to leave it about 20 from the pool as before? KENNETH ABRUZZO: Yes, yes. MR. CHAIRMAN: Alright, I don't have any particular questions. This is a one story structure, right? KENNETH ABRUZZO: Yes, the architect has also shown, there trying to work out the final designs with the glasses. I understand Page 13 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals to make that the type of the case 18 feet. MEMBER WILTON: heating equipment? MR. CHAIRMAN: It doesn't look like it. KENNETH ABRUZZO: No, I, I don't they can corporate that some place. sure that they get certain pane glass and he has on here structure is 11 feet but not to exceed in any Is he also going to house the pool filter and think so but, I'm sure that they might be able to incorporate it by MR. CHAIRMAN: nice man? MEMBER VILLA: the changing room by adding another foot or two to that, that little section of tile room if they need more or cutting the changing room down a little bit and putting those structures in. Good. Does anybody have any questions of this Yes, I do. KENNETH ABRUZZO: The pool is pool. It's not an Olympic type pool. 36, 20 x 40. This is a 20 x 40. MEMBER VILLA: Alright, so if you're going to center this auxiliary greenhouse, changing room and everything else on the pool and the What is the size of the pool? 20 x 40, which is a standard It's 20 x 40. Pools come 18 x KENNETH ABRUZZO: Yeah, talk to the architect about structures as I know it -- MR. CHAIRMAN: No KENNETH ABRUZZO: And I'm not sure but even, I could even the enclosures. Those are not big MEMBER WILTON: I'm just wondering where it's going because it isn't show in any of the structures. Page 14 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals pool is going to setback at 24 feet and you're centering a building that's 25 feet and then another 6 feet how are you going to be in the twenties with your offset from the property line? You're going to be about 22 feet just from the center and then you're going to have a 8 a 6 foot changing room, you're going to be down .... KENNETH ABRUZZO: Yeah, my point is Mr. Villa was that we can center on this by sliding the pool over. The pool, the proposed pool structure will be in the rear yard and, and be over a hundred feet from the bluff and if the Board says we want this full structure to be 22 or 23 or 24 feet the pool, the cabana structure to be that we'll slide the pool over slightly. MEMBER VILLA: Yes, but you were leading us to believe that you were going to be in the twenties. There's no way unless you move that building. MR. CHAIRMAN: He's going to move the pool. KENNETH ABRUZZO: We could, we could slide the pool. MEMBER VILLA: You're going to move the pool on the building so you'll maintain 24 feet frown both of them, from either one of them? KENNETH ABRUZZO: Sure, we can do that if that, that's what you want. I don't have a problem with that. MEMBER VILLA: Alright, because it doesn't add up the way it is now. MR. CHAIRMAN: Well, you still have a great deal of distance between there and the two story frame cottage, right? Then that's the way you're going to go. KENNETH ABRUZZO: Yes, we're talking about .... Page 15 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals MR. CHAIRMAN: You're just going to go deeper into the property, is that what you're going to do? MEMBER VILLA: Well, if you push it over that way there not going to be 100 feet away from the bluff --- MR. CHAIRMAN: No, he's going to go deeper into the property Bob. He's going to go south forward. You understand what I mean? MEMBER VILLA: Then he's not in the rear yard with the pool. BOARD SECRETARY KOWALSKI: That's right. MR. CHAIRMAN: Yes, he is ..... KENNETH ABRUZZO: No, I'm not going to slide the pool Mr. Villa south at all. That has to be maintained in the rear yard. MR. CHAIRMAN: No, Oh, OK, it has to be maintained in the rear. KENNETH ABRUZZO: Right, we're going to keep the pool in the rear yard because this Board has already said they didn't want us to have the pool in the, in the side yard. We can slide that over 2, 3 feet to make whatever number you want the pool house to be from the property line. All I'm saying is that in this zone I believe the property line the accessory structure can be I hate, I hate to guess, but I think it's 10 feet or 15 feet from the side yard and I'm saying we can be 22 or 24 if that's what this Board wants. I don't have a problem moving things over. Even to the case if it wasn't perfectly centered by a foot I don't have a problem. I think we can slide the pool over far center the structure. MR. CHAIRMAN: Alright, We'd like it centered and enough that I could still do you want to come up with a number that you're going to be happy with? Page 16 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals MEMBER VILLA: within 100 feet of the bluff. KENNETH ABRUZZO: Well, I don't starts to tail away from that direction Well, if he slides the pool over he's going to be think so because the bluff so I, unless I compute this out again and check it but as a surveyor I can work that out. Even if I had to cut down from that distance, you see 100 feet is to be a patio. I can always cut the edge of a patio down. That's not even to the pool structure itself, it's to a patio. BOARD SECRETARY KOWALSKI: I think the setback for the pool has to be 20 feet from the side property line there. KENNETH ABRUZZO: OK, but, but again, I have no problems making it 20, 24, whatever you mandated us to do. MR. CHAIRMAN: Are you going to be happy with 20 feet Bob. I mean you want to come in another ...... I'd just like to have some sort of a number that I'm MEMBER VILLA: MR. CHAIRMAN: MEMBER VILLA: Well do you want to deal with 20 feet? No closer than 20 feet. KENNETH ABRUZZO: That's fine. MR. CHAIRMAN: So, we'll deal with something like that. KENNETH ABRUZZO: Yeah, that's fine, I have no problem that. MR. CHAIRMAN: I thank you Sir. KENNETH ABRUZZO: Thank you very much, thank you. tomorrow? Is .that alright? with Call Page 17 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals MR. CHAIRMAN: Yes. Just before you leave we'll see if anybody else, is there anybody else would like to speak in favor of this? Anybody like to speak against it? I guess we're clean. Thank you. Hearing no further comment I'll make a motion closing the hearing reserving decision until later. MEMBER DOYEN: Second. MR. CHAIRMAN: All in favor? BOARD MEMBERS: Aye. 7:45 P.M. Appl. No. 4296 - CHARLES TYLER~ JR. MR. CHAIRMAN: Request for Variance for approval of existing accessory building for housing of chickens with fencing, all less than the required 40 feet from all property lines at 1455 Pike Street, Mattituck. Mr. Tyler and his aunt are both friends of mine. Anybody have any specific objection to my officiating at this hearing I wish you'd raise that point at this point. Yes. MARY ANN FLEISCHMAN: Will there be a bias because of this. MR. CHAIRMAN: Absolutely not. I have a copy of the sketch indicating the chicken coop and the fencing and the rear yard area well in the rear yard area at approximately 15 feet from the westerly property line and the building itself is 5 x 9 with a small fence enclosure in the front of it and I have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. Mr. Tyler would you like to be heard? CHARLES TYLER: I believe my application states why I'm requesting a variance. Page 18 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals MR. CHAIRMAN: CHARLES TYLER: MR. CHAIRMAN: CHARLES TYLER: MR. CHAIRMAN: CHARLES TYLER: MR. CHAIRMAN: How many chickens do you have now? I have six. Alright. How many are you intending to have? I wouldn't look to have any more than that. When did this structure come into being? Approximately a year ago. Was it built on site or was it --- CHARLES TYLER: No, it, the building was given to me by a friend. I moved into the location that it's at now. When I got it I wasn't aware that I needed a building permit. I was to understand that I needed a building permit for something that I built myself. Therefore, I never pursued it and I was notified by the Building Department that I needed one and I followed that path and then I was notified that it would be disapproved due to the size of my property and the distance needed to be away from the property line and that's MR. CHAIRMAN: CHARLES TYLER: MR. CHAIRMAN: why I'm asking for variance. MR. CHAIRMAN: Alright. though, right? CHARLES TYLER: No, I'm not. Your aunt is the owner? Yes. Alright. questions of Mr. Tyler? You're not the owner of the property MEMBER DINIZIO: CHARLES TYLER: MEMBER DINIZIO: How many chickens you're going to have? I have six. And that's going to be it? Let's see if anybody, anybody have any Jim? Page 19 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals CHARLES TYLER: MEMBER DINIZIO: CHARLES TYLER: MEMBER DINIZIO: MEMBER WILTON: CHARLES TYLER: MEMBER WILTON: CHARLES TYLER: MEMBER WILTON: CHARLES TYLER: eggs for myself, Yeah, I wouldn't ask for any more than that. Linda said, no roosters. I couldn't be bothered with a rooster. OK. How many chickens have you had in the past? Six. Six were given to me and that you know. So, its always been. Yeah, its never been more than six? You haven't had any roosters there? No. The reason for getting them was just for my family. You know I've no reason to have a rooster. I'm not looking to multiply or that sort. MR. CHAIRMAN: You just answered my question. My question is, why did you want the chicken? I thank you. We'll see what the, you have no intentions of elongating this building at all? It's going to remain the way it is? CHARLES TYLER: No. MR. CHAIRMAN: Alright, thank you. Is there anybody would like to speak in favor of this application? Anybody like to speak against the application? Yes ma'am. Could you just state your name for the record. MARY ANN FLEISCHMAN: My name is May Ann Fleischman Milligan. I own the house right next door to Charlie. In fact I have some pictures to show the close proximity of the houses. Well actually I should say I own .the house next to the house his aunt owns. There's a couple of reasons why I oppose to the chicken Page 20 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals coop. The first one being the noise factor. I have a wake up call every morning when I hear those chickens cackle so I whenever the chickens wake up that's with a when I and my family wake up. I, we can hear them very loudly even in the winter time but it's more intense from the spring time until the fall when we have the windows opened and thank you cause you did answer my concern or wonderment of whether there would soon be a rooster to follow. My second concern is the sanitary concerns. I'm not sure where the feces of the chicken are going right now but there seems to be a pile in the corner close to my house. In fact, I have a picture here that at first I thought was some of the leftover ash from when he use to burn on, but that I understand my husband said that it's been about a month and a half that he seen this pile growing and if it were the ash like my theory then that would have dissipated with the rains and everything. So sanitary concerns along with tile smell. The ( )appearance which I brought some pictures just to give you an idea on the small amount of property what's back there. A chicken coop with a chicken fence and a dog house and the tile whatever that is and there's a boat that's been there for about two and, Oh, three-quarter years and there's two upside down garbage cans, one upside down garbage can on top of the other garbage can that's been there for about 2-1/2 years, 2. The lawn mower is out there that when I first moved in he stored downstairs in my cellar, I did him a favor and that's still out there 3 years now, there's tires that are just thrown there, there are well anyway you'll get the idea with the pictures that I will leave with you and lastly I don't know why the Page 21 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals category of antagonist. If you want to call it attitude, if you want to call it historic, a non neighborly of things going on. I've had in fact, it's, it's interestingly to say that you have a relationship with him, because every time I've tried to a work through difficulties as a neighbor. Charlie knows everybody in Town or he works with the Police Station so there's been preferential treatment from my perspective, fire person, whatever. MR. CHAIRMAN: Well that's where I know him from. MARY ANN FLEISCHMAN: Yes, OK. Well in the past three years that I've owned that house and lived there 2-1/2 years ago he got a dog and that dog barked excessively outside when he had the dog outside. Charlie's schedule is such that he would be awake at three in the morning to go to work and the dog would be outside. Alright, so it's a nuisance, talk about it, get nowhere, basically he told us to go take a hike, called the police. This went on for over a year, alright, so the nuisance of that. Snow blower, we would pick up the snow on our sidewalk] In fact, one of his friends owns a snow blower that they were snow blowing and they would purposely come throw the snow back on where my husband shovel]ed. They would snow blow on a side window and almost broke our window. Alright, so this is disrespect, burning. It took me eight months of him burning and me calling the police and calling the landfill and calling the New York State people, his total disrespect. He can do what he wants. The pollution polluted the baby's room, the smoke would go there, ashes that would remain smothering fire, he's a fireman, the smothering would be there for for days in a row. It Page 22 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals would go away for the weekend, alright. I wonder about the ground board and I can't show it on the pictures where the ashes came down and burnt because it's kind of a hill from where he had the thing. So, also there's damage from the side yard when he replaced a retaining wall and he's yet to really repair that, it got all of the sea erosion. So, I guess overall it's, it's this, he's on a small amount of property that his aunt owns, he's got all the stuff back there, now he wants to have the chicken coop which he's been there for the better part of the past year. It could have been last spring and I'm tired of getting woken up when he wants to, I'm tired of the damage to my property because he doesn't care and I guess I'm, I'm just, I mean if he wants chickens, he works on a farm, go put the chickens on the farm, Char]ie, please. You've got a small property there. I'd like to have a little peace and I would'like to be able to wake up when I want the alarm to go off not when you're chickens or your dog decide that it's time to be woken up. So, that's all I have to say and I hope there's no retaliatory measure to this time either. This is the side yard just to give you an idea, that's how close our houses are, alright. MR. CHAIRMAN: That's the retaining wall you're referring to? MARY ANN FLEISCHMAN: Yes, yeah, alright. MR. CHAIRMAN: Those are the two houses to the property. MARY ANN FLEISCHMAN: This is like the side view, so that's where my side porch area is and this is as if you're in the front yard looking down. My property line basically the survey is the Page 23 - Hearing Transcript Regular Meeting of February 1, Southold Town Board of Appeals 1995 retaining wall that the walnut tree is on my property and it goes down straight, OK. MR. CHAIRMAN: We're feeding these all to Mr. Doyen. Mr. Doyen is from Fishers Island. MARY ANN FLEISCHMAN: Oh, OK, alright. This was from, this is outside my a bathroom window and this is that walnut tree that is over there that I talked about and this bush here is the corner of my property, so you can see where the chicken coop is there and how close it is, OK. This is the pile of what I thought was ash, but it just stays there so it could be chicken feces for all I know that it's just sitting there. This is to show you all the stuff in the back yard that is there. Here's another back view of that, of, my house is the green house and then his aunt's house is there. (The parties discussing amongst themselves) MR. CHAIRMAN: Can I just ask you a question Mary Ann about the chicken themselves. MARY ANN FLEISCHMAN: Sure, yes. MR. CHAIRMAN: How much noise do they actually make? MARY ANN FLEISCHMAN: Enough to wake me up every morning and that's now time also. In the summer time, I, well, spring I should say, as soon as the weather warms up we will keep the windows open all night long from spring through fall and a, I'm trying to think if there's a, well, the baby's room is the closest to that corner of the house, our room is on the other side. So, if it's not me waking up, it's she waking up, so, the family is being woken up and it's enough to where it is a nuisance. Page 24 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals MR. the chickens as they stand now. MARY ANN FLEISCHMAN: On stop chickens from cackling? MR. CHAIRMAN: Alright, it, it's upsetting you, it's the chicken? MARY ANN FLEISCHMAN: Oh, no, I It took a year and a half of the dog, CHAIR1VLAN: So, in your opinion there's no way of mitigating the level of the noise how do you definitely not the dog that's don't know what happened. that the dog no longer is a don't know what happens does seem to echo, so I really would do much of to his, it's 'just like a little higher, so I with the sound in that area but it really don't know if moving it over a few feet anything. nuisance, no longer barks. Whether the vocal cords were operated on, alright, the dog is not a problem anymore which was great because as soon as the dog problem was alleviated we like a oh, thank God, we're going to be able to you know sleep when we want and then the next thing we knew chickens were back there so and that's why I even made, I'm glad to hear that the rooster is not on the way. But, considering the past experience I've had with the total disrespect of neighborly conducts I, I also question whether or not roosters will soon be there. MEMBER WILTON: You're talking would it help if the chicken coop was moved a few feet towards the east? MARY ANN FLEISCHMAN: I don't think there's much room to move it east and it's the way that the property go is that, it's like there's a, the back yard of, of my property goes into a low compared Page 25 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals MEMBER WILTON: What's the noise level of six chickens in the morning? MARY ANN FLEISCHMAN: Not to wake me up, I don't know, I don't have a decibel reader, enough to be woken up in the winter time, just normal sounds, I don't know, unless you want to get up. MEMBER WILTON: No, could you compare it to some other noise that you know might be familiar with? Horn honking, geese overhead? MARY ANN FLEISCHMAN: No, not geese, no geese overhead cause they fly over you know, they have their own pattern over the area there and they've never woken me up. BOARD SECRETARY KOWALSKh Is there a nursery school still in the back? MARY ANN FLEISCHMAN: Yep. BOARD SECRETARY KOWALSKI: The children go outside, right? MARY ANN FLEISCHMAN: Yeah. They're not there at 5:30 in the morning. BOARD SECRETARY KOWALSKI: Alright, it's early. MR. CHAIRMAN: Is this a noise that continues or do they eventually settle down? Is it a noise that could be --- MARY ANN FLEISCHMAN: They settle down within about a half hour, forty-five minutes. MR. CHAIRMAN: Alright, so it's not a noise that would be caused by other animals that would be a cat It's tile same time every morning? MARY ANN FLEISCHMAN: Yeah, depends on sunrise, or anything of that nature? well yeah, well and it also that's when the chickens rise up. A, cause Page 26 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals thereafter, thereafter then, then when I get awake after about 20 minutes it's like OK, this isn't going away so I'm not going to be able to fall back to sleep, then I get up and then I take my dog out and she goes promptly out back there because she hears the chickens so she starts barking at the chickens. I have an invisible fence so my dog stays inside the perimeter. MR. CHAIRMAN: Alright, thank you. MARY ANN FLEISCHMAN: Thank you. MR. CHAIRMAN: Not to get into a counter productive situation but we'll ask Mr. Tyler if there's anything he would like to say. CHARLES TYLER: If there are any changes you'd like me to make I have no problem doing that. I live right there, I don't, I don't find a problem with that. MR. CHAIRMAN: So you would be willing to clean up the yard and so on and so forth. CHARLES TYLER: Yes. MR. CHAIRMAN: Move the chicken coop? CHARLES TYLER: Yeah, I have no problem with that, like I said, you know, I don't have a problem with it. MR. CHAIRMAN: Alright. Does anybody have any questions of Mr. Tyler? MEMBER VILLA: Yes, they said you work on a farm too? How far away is the farm? CHARLES TYLER: Not so very, a quarter of a mile. MARY ANN FLEISCHMAN: Question. If your determination is to move it, is there a way that you could have a stipulation that we Page 27 - Hearing Transcript Regular Meeting of February ], ]995 Southold Town Board of Appeals test one because if, if it's going to be a decision on that he move it and it's still problematic I would like to know if there's a recourse that I would have because going back to my, my theory of the way the sound travels back there that I don't think because he's got such a small amount of land, I don't think it's going to make that much of a difference and I guess I'm anticipating that the decisions like all the other decisions in the past seem to go Mr. Tyler's way. Is there a recourse after that? MR. CHAIRMAN: Well, let's put it this way. We could ask Mr. Tyler to clean up the entire yard alright, move the chicken coop, alright. If Mr. Tyler chose not to do that on the Board's own motion we would reconvene the hearing and take away his right to have the chicken coop and we've done that in the past, not in reference to a chicken coop but in reference to other things, alright, so, I really don't know how the Board feels on this. I'll be perfectly honest with you Mary Ann, I don't even know how I'm voting on it, alright. I may just abstain, alright. All I ask you to do is, if anybody had any particular objection for me to officiate at the hearing. I think I've done as best as I possibly could at this point, alright. I don't know at this point, we end up in a situation where we don't go out on inspections together, the League of Women Voters have asked us not to do that, alright, so then we don't talk about the individual hearings until we actually come here. We don't deliberate until after the hearing and so I can't tell ~rou how it's going to go, alright at this point. MARY ANN FLEISCHMAN: I just think this is making [ne paranoid. Page 28 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals MR. CHAIRMAN: Mr. Tyler. CHARLES TYLER: I have one question. Out of ail the other adjacent property owners has a complaint been made or are there any complaints in the last year on this? MR. CHAIRMAN: We wouldn't, we have no, we're not privy to any CHARLES TYLER: OK, all people that are involved that were given a notice, the same as Mary Ann was, did anybody make a complaint of that nature? MR. CHAIRMAN: I have nothing in the file. We did have a letter from Mr. Hal]enbach which he withdrew his objection. MARY ANN FLEISCHMAN: And what difference does that make? Maybe people are not as comfortable speaking out as I am. BOARD SECRETARY KOWALSKI: No, he gave a letter saying he would approve that location with six chickens. Ite didn't really withdraw, he said with those conditions. MEMBER VILLA: And when the six chickens are gone that the coop be removed. BOARD SECRETARY KOWALSKI: That's right. MARY ANN FLEISCHMAN: He works on a farm, I still say let him go to the farm. MR. CHAIRMAN: I was just thinking. What would happen if the chicken coop was actually turned around and the fencing was to the rear of the property so that the deadening sound actually was the coop itself towards your property. I mean certainly --- Page 29 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals CHARLES TYLER:. Like I said before I have no problems with any of that. MR. CHAIRMAN: All I can tell you at this point is that we'll kick it around and we'll see what we can do in the most trite sense that I can make that phrase. In no way, alright, in my questioning your opinion in reference to the amount of noise that these chickens are making, alright, I just never heard chickens make that much noise and now please this has nothing to do with your statements and your MARY ANN FLEISCHMAN: I'm not taking it personally but it has been an interesting three years of having moved into the neighborhood, so this, you don't worry about it. MR. CHAIRMAN: Alright, thank you very much. Hearing no further comment I'll make until later. MEMBER WILTON: MR. CHAIRMAN: BOARD MEMBERS: MR. CHAIRMAN: a motion closing the hearing reserving decision Second. All in favor? Aye. Thank you very much for coming in everybody. For everybody who is concerned about this we have approximately 60 days to make a decision on this, actually 45 to 60 days. We're certainly not going to make that. We're going to make a determination as soon as we can, alright and it depends upon how long the hearings go tonight and so on and so forth, but we may have a decision tonight, I don't know. Page 30 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals 8:15 P.M. Appl. No. 4260 - 4262 - WILLIAM F. GASSER MR. CHAIRMAN: Hearings for Variances concerning property known and referred to as the American Armoured Tank Museum, 640 Love Lane and the south side of County Route 48, Mattituck, N.Y., County Tax Map Parcel No. 1000-140-2-16 located in the Hamlet Business Zone District, and is continued from the last regularly scheduled meeting and I think we'll start out with Mr. Blass. How are you tonight? GREG BLASS: Good evening Mr. Chairman, gentlemen. I have several items I'd like to submit for the record and first I'll state them as I present them i§ a statement of posting required for the record again, the second is a I know that a letter from the Chamber of Commerce was, was presented here originally. Do you have that? MR. CHAIRMAN: Yes, we do. GREG BLASS: I have a copy that I'll give, together with a copy of our reply memorandum, a copy of which I have for each Member of the Board and finally I have a total of 125 petitions from residence of the Town of Southold that relate to the activity of the applicant. I'll be brief in my comments Mr. Chairman. I want to say that having had the opportunity to read the papers submitted by the objectants Mr. & Mrs. Amaretti, I have to take serious issue in which the way the motives and actual the conduct of Mr. Gasser and the American Armoured Foundation having fictionalized suggesting that in one place, one quote is that "they have knowingly violated town law for 13 years". I would point out that when the applicant Pa'ge 31 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals purchased this property it was used for storage and it had access to the public. Not museum storage but it was storage of lumber and commercial and private individuals went to the property under the previous owners use and went there in considerable volume and removed materials from the property. It was a good' faith intent on the part of the applicant to continue a similar though not identical use with the CO that he was able to get and to suggest that they have flaunted or violated the law for this period of time really overlooks a scenario that I think is pointed out on page, starts on page 3 after discussions had been had. First discussion was actually between Mr. Gasser and the Board in 1980. That was not, there was no inference that the items would be stored in a building. The 20 items that he had alluded to in that conference of restoring them and displaying them having enough space between them so people could look at could never have been accomplished in a building that size in that number of vehicles. But then when the Amaretties moved in which actually was 6 years after this operation was underway we had a series of events that involved constant visits by Mr. Gasser to this building and by their attorneys, the respective attorneys who preceded myself and I point out August 28, 91 of the Planning Board required revision to the site plan, discussions followed, application to the Building Department in December of 91 for a Tower Permit, January of 92, Notice was given of Disapproval, February 25, 92, application for Variance for the Tower, April of 92 request for conferences with the Town Attorney and the Zoning Board after numerous discussions told the applicant, convinced the applicant that Page 32 - Hearing Transcript Regular Meeting of February l, Southold Town Board of Appeals 1995 a zone change would be needed, and by the way, here's an example of the way our efforts in this regard have been twisted. They were not told out of the blue by a letter from the Town Attorney, look we're not going to tolerate this anymore, get a zone change. This was a suggestion that the applicant, Mr. Gasser and his attorney made to the Town Attorney in a personal discussion. The Town Attorney considered that suggestion, brought it back to the Town Board and then based upon the input of the Town Board got a letter the applicant suggesting that the zone change was a good out to idea. That's what that letter was about. The quote taken out of context from that letter is just one of many examples of the distortion that we're very concerned with. I would just let the Board review the rest of the scenario that has been followed in good faith over a period of years that true has only some documents in the record but every of the Builder's Department, the staff to the Zoning Board and the Planning Board are all well aware of the, of the rea] owners effort that these people have put into keeping this thing in harmony with what the Town wanted and there has not been one directed, not one requirement that the Town of Southold has made with respect to this property that my clients have not followed and followed to the letter and their still doing that right up to this application today. I would also point out on a, on the reply memo that we have that we have shown the difficulties being very practical difficulties as a basis for an area variance we point out that the property's L shape configuration. The L shape configuration alone, the dimensions alone were the basis of this Board's decision of May Page 33 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals 4, 1994. Talking about the virtue impossibility as to future construction on the property. There are court cases that establish that. That is an important factor and I can also point out that some of the cases in the memo that the objectants cited themselves stand for a very important proposition here, a very important proposition and that gets back to the point of why we should not really take as seriously as they would have us take a threat to take this all to court and that these proceedings are just a dry run. Remember gentlemen of the Board that the Zoning Board of Appeals n~t only put into cases that were cited by the objectant but also according to the Jordans Partners case which was decided in the Court in the Appellate Division with respect to actions taken by this very Board that it is the Zoning Board of Appeals that has primary jurisdiction. Primary jurisdiction in interpreting the code, so I think a court would very highly regard whatever decisions and whatever scenarios have taken place with respect to these applications up til now. Both the Town and the applicant contrary to what has been suggested have been doing a long series of efforts and work in administrating the Town's regulatory authority as it would applied to the applicant, to the applicant's property and to the applicant's use of that property, and I also would point out that the Town Law 267B requirements are met here. We will point out that the neighborhood of the community where this property is located is a very important factor in what your decision should be. This proper~y is not on an island with the only other affected property being the neighboring residential/commercial property that's Page 34 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals owned by the objectives. This property is in a neighborhood that has a tourist and commercial base. It is a property that is used in a way that attracts tourist economy. Tourism is a recurrent theme in the master plan of the Town of Southold and I would point out that the, any kind of museum that has military artifacts dating back to the American Revolution is a tourist base facility. It is not a World War II machine storage place as is contemptuously stated in the papers submitted by the objective and I would also point out that whether or not the applicant reaps a debtor profit out of this variance being granted is not really an issue here because the applicant is a non profit corporation. It doesn't make money on this kind of activity. In fact, some complaint has been suggested that there's been no financial information offered about what the applicant does in terms of dollars and cents. Well, I don't have a statement to give you in writing tonight but I can tell you that the total cash income that derives from American Armoured Foundation activity at this property is about $25,000 and that includes a small gift shop and it includes admissions charged to visitors. The contribution that is personally made by Mr. Gasser, himself, to this operation totals about $124,000 a year of his own money and that total goes to expenses that range from advertising, payroll, payroll loans is about $25,000 annually, insurance, accounting services, parts for equipment and supplies, delivery and freight charges, building repairs, ground maintenance, all of that is where this money goes to. There is no pr?fit, there's nothing taken home, it's just the opposite, it's given in, so I don't think that we're talking Pa~ge 35 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals about reaping benefits of profit of profitability that some of the cases that have been cited in the objective's memorandum suggest to you, but I think the conclusion can be made Members of the Board that this application to this variance is the result of many appearances before all the Planning Board and Zoning Board and the Town Board. The applicant has cooperated, will continue to cooperate and I ask that every consideration be given to not only what this property is on the very difficult dimensions it lies but also what it is contributing to the community and to actually the heritage of this nation as it can be found here in this Town of Southold and the community of Mattituck. I think that they deserve the consideration that their being asked, it is not outlandish. These variances are slight and they will go a long way towards the system of the operation in maintaining the character of the displays and the operation that they have. MR. CHAIRMAN: Can I ask a couple of questions, Mr. Blass? GREG BLASS: Sure. MR. CHAIRMAN: When they purchased the property, the Gassers in 1980, the zoning on the property was Light Industrial was it? GREG BLASS: It was zoned C and at that time there was no published regulations that related to outdoor displays. That occurred subsequently when the master plan was adopted. MR. CHAIRMAN: Then it switched to what? What were they changed to? GREG BLASS: LI. Page 36 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals MR. CHAIRMAN: LI, Light Industrial. Now, what precipitated and I know that we had discussed this several times but just so I can keep it fresh in my mind, what precipitated the change to HB. GREG BLASS: The application made before the Town Board and that was precipitated by the apparent difficulty in getting a clear sense of direction from the Building Inspector and from the Planning Board in the site planning view process so the suggestion was made that a zone change be applied for and that suggestion was accepted by the Town. It wasn't imposed by the Town as it had been suggested. MR. CHAIRMAN: So it was changed then from LI to HB. Alright, let's go back to the fence for a second because the nature of this hearing is all three hearings in one. GREG BLASS: Yes. MR. CHAIRMAN: The fence is approximately how high at this point? I heard 5 foot 6 inches and then I heard, maybe Bill can tell us. MR. GASSER: OK, the fence height is 6-1/2 on the side 6.8 feet on the front and then it has a double bobbed wire extension above that. MR. CHAIRMAN: What did you say it was on the side? MR. GASSER: 6.5 feet. MEMBER WILTON: Is that to the top rail? MR. GASSER: I'm sorry. MEMBER WILTON: Is that to the top rail? Is there a top rail? MR. GASSER: To the top rail, but below the bobbed wire. MR. CHAIRMAN: Is there a specific and please I realize that there are particular reasons for these things but is there a specific Page 37 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals I mean I know the reason for bobbed reason for the bobbed wire? wire, alright. GREG BLASS: Yes, that it's because in the arrangements that have been made for the delivery for the receipt of some of the artifacts so the displays requirement has been made by the Federal Agencies that there be a better protection than just a simple fence and that's why the bobbed wire was placed there in order to be eligible to receive some of these exhibits. On top of the overall problem of people who have climbed the fence before the bobbed wire was there who were able to enter the property. MR. CHAIRMAN: Alright. There is no physical way that I mean all they could do though is malign or damage the specific units there they could not start them or anything of that nature to my knowledge from what I gathered from Mr. ----. GREG BLASS: That would be physically impossible. MR. CHAIRMAN: Alright. Does anybody have any questions about the fence before we go any farther? The attorney has now explained to us why the bobbed wire is there. MEMBER WILTON: Does that require a documental some place from the Federal Government? GREG BLASS: We can get documentation for you, sure. MR. GASSER: I'm operating on a defense security manual. They set the parameters when I established the museum. They argued the issue and wanted a 10 foot fence with double wiring because these weapons are live. I have a live weapon~ museum. That's what we are and they said they wanted a 10 foot fence and I said that's not Page 38 - Hearing Transcript Regular Meeting of February 1, Southold Town Board of Appeals 1995 going to fly in town when I have to keep it to a reasonable size. More conventional size which is a 6 foot fence, alright. It's just a bobbed wire, it comes out to wherever it comes out to when you purchase that way. So that's where it came from. They let it ride. They want to put an ( ) over to us now and they brought the 10 foot issue again and that tank is still being deliberated on pending their review of my security systems. So, the defense is still an issue even with them. MR. CHAIRMAN: Could that be changed Bill by putting censors in the fence? I mean I realize that's a great expense of putting censors in the fence. MRS. GASSER: Electric censors: MR. CHAIRMAN: No, well yes, similar to what they have in jails. MR. GASSER: We did some inquiries with our alarm company on it and the best it turns is a visual something. I understand that the interpretation here. I mean I don't like bobbed wire either. It's just, you know, it's not the most esthetic pleasing thing in the world but it serves a purpose, it serves a purpose of deterring anybody from coming in and doing injury. Anybody gets hurt on those things I'm the one responsible. The Army doesn't care, I'm the one who has to take the rap on it. I have to bring any misappropriation or misuse of anything in the museum. In firearms if you lose a firearm you're guilty not the person who takes it airight. I have to have the maximum security possible in order to make Uncle Sam feel comfortable to allow the installation to ~ustain operation and I said I had to I have a whole set of cameras, I have Page 39 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeais arm guard service and alarm system to central station. The best army bases in the world don't have what I have. I have the top of the line full alarm system you can have. But, you still have to allow for you know, the unexpected. That's the general public, they want to hop on something and get in there and do damage, you know, the police they raise their hand and say we're not responsible, you're responsible. The army also to me says the same thing. I have to protect it, I have to be wary of lawsuits, I have to be wary of anybody getting hurt. I don't want it to happen. The best way thought I could prevent it was using the double V type system on it because I was a kid too and I climbed bobbed wire fences, OK. think we all, every male child probably at one time or another hopped the fence, OK, there are ways of still doing it. The bobbed wire it's just as hard getting in as it is getting out with the double V at the top and that's, even most military installations are going to go with that fence because it costs a lot to put it up. I'd like it to be built by the double V because it was a small addition at the time and got that extra security. MR. CHAIRMAN: When approximately did you put that fence in Bili? MR. GASSER: A, gee, I guess 1981. North Fork Fence put it in for MR. CHAIRMAN: 19817 MR. GASSER: Yes. MR. CHAIRMAN: Alright, now we go over to the Tower. I believe there is a variance of a setback on the Tower. Page 40 - Hearing Transcript Regular Meeting of February 1, 1995 Sou:hold Town Board of Appeals GREG BLASS: Yeah, the Tower I can tell you Mr. Chairman was moved 100 feet back as per the Town Board. We actually moved it back at that point 100 plus some feet. Then the Tower was moved again to the rear corner as per the Planning Board. It is 9 inches by 1 foot 7 inches less than the 5 feet from the rear line requirement and it is a full 2 feet less than the 5 feet of the side yard and that so the variance would be for the l, 9 by 1-1/2, 1.7 and by the 2. MR. CHAIRMAN: And it's been lowered? GREG BLASS: And is now, is now 17 feet 8 inches high. MR. CHAIRMAN: Alright, good. Does anybody have any questions of anyone about the Tower? I realize you may have questions later. I mean I'm just asking on the Board if anybody has any questions? By the way you might want to review these (end of tape). Does anybody have any questions about the Tower and its particular placement at this time? MEMBER VILLA: Well, why was it placed there? MR. CHAIRMAN: Planning Board. MEMBER VILLA: I was led to believe because they wanted some parking? GREG BLASS: Well it was placed in the back by the Town Board as a condition to the zone change. MEMBER VILLA: Right. GREG BLASS: It was placed in the corner by the Planning Board in their site plan review process which is still pending. MEMBER VILLA: For what reason? Page 41 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals MRS. GASSER: It was placed there by the Building Department. They told us we had to have it in the rear yard. Now the Planning Department, the Planning Board is saying OK, you need parking spots there and we can't give you the five parking spots there until you have to move this out. MR. CHAIRIVlAN: Alright. What is the specific purpose of the Tower? It just adds to the ambiance of the museum. Is that to you what it is? MR. GASSER: What's in it. MR. CHAIRMAN: Alright. MRS. GASSER: That Tower stood in Mattituck for 50 years. An observation point in the news. MR. CHAIRMAN: I have to ask the question. I assumed that that was the reason. MR. GASSER: It's not as tail. GREG BLASS: It's diminish in size, but it, it has, it has a memorial function as a, because it is also similar to towers that were in certain POW camps so it's considered, it's regarded in and displayed as a memorial tower and it's also a historical artifacts because it would actually was at one time though it's lower now. MR. CHAIRMAN: Alright, so then we go back to the outside issue, the outside display issue and that appears to be the remaining issue that's before us and again I'll ask if anybody has any particular questions of either the applicant, his wife, or their attorney? MR. GASSER: I'd just want to say if I could Mr. Chairman, on the issue of display, it was suggested that by the objectants that we Page 42 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals put up a building for displaying interior display. With the configuration and the dimensions of this property that would be that would necessitate as even more variance than what we sought already. It would further make display a of only possible of far fewer amount of artifacts. Probably less than half of what we have there now. It would probably make the museum less than viable an operation, but I think that the outdoor display issue is truly mitigated if I could submit respective to the Board by the environmental requirements that have been promulgated by the Board and which have been complied with already with respect to the drip pans and the tarpaulin and the regular, regularity inspection by on site personnel that has been established. So, we think that has accomplished much of the concern that would arise from the outdoor display and we feel that it mitigates the problem and it deserves the Board's consideration that they regard the viability of this operation. MR. CHAIRMAN: Alright. Any other questions of the applicant or his attorney regarding outside display? No, OK. We thank you Mr. Blass, we'll see what develops. I'm sure we'll see you back shortly. GREG BLASS: Thank you Mr. Chairman. MR. CHAIRMAN: Thank you. Is there anybody else would like to speak in favor of this application? Yes Sir, you're welcome to use the mike or stand or whatever you'd like to do. I think we'll ask you to use the mike if you don't mind. How are you tonight? Page 43 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals WILLIAM MACOMBER: Good evening. I spoke last week, I got a few things wrong, but this evening a few friends from friends and members we've collected a petition on people that were for this particular variances. I know the Town has codes on height requirements and everything, but I've expressed my views to Mr. & Mrs. Gasser and a few other veterans that it makes me feel a slight hand bad because something that is rare marking in remembrance of the POW, MIA, I felt kind of bad to see the Tower being shoved to the rear. Not anything on your part, but the government has always shoved the POW, MIA, to the rear and I know you have your requirements of height and all, but I was kind of upset about that totally. We've gotten a lot of support from on the petitions, we had a very good outing this week. Another item that was brought up in the last meeting was the property next door, having brunches in the spring and summer which is wonderful. The museum happens to open up at a bad time or brunch time. I happened to be at the museum this Sunday because there was a function going on and I also noticed that pretty close to schedule each Sunday the Long Island Railroad comes through and I believe that makes just as much noise as the machinery that is being operating. When I was to these functions that was going on Saturday, I believe there was two items that was started, three items were moved. One item they could not get started. I won't say there was an over excess of noise, I work in a shop that's very noisy but it was within reason and of course I beg to differ I'm sorry, I don't mean to ask, so it may make a difference, but that's all I have to express. Thank you. Page 4zl - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals MR. CHAIRMAN: Alright, we'll move over to the opposition and then anybody we'll wrap-up with anybody that would like to make any further final closing statements. How are you tonight Ms. Borelli? CARMELA BORELLI: Fine. I'd like to go through, first of all a couple of the things that Mr. Blass covered. I'm not going to respond to the itemization in his memo of the events and actions that were taken by the applicants because I think that if you look at the record, the record absolutely speaks for itself. It's irrefutable in terms of the lack of action. I don't think that those words insinuations, I think that is fact and I think the record absolutely speaks for itself so I'm not to address this listing of items because they cannot and will not repute what the record will tell you if you look at the record. Mr. Blass said that the building was used for storage at the time of purchase, that is correct, it was owned by Penny Lumber and George Penny used it for storage. However it was not a museum, it was within the code for what it was used for at the time. The museum never was a permitted use in that zone which was C. It was never a permitted use in LI, when it was changed to LI and it was never a permitted use in HB, which is why they're here now. It has always violated the code, even though it was used for the storage of lumber prior to that and I think that there is a serious difference between the storage of lumber and the storage of machinery. MR. CHAIRMAN: Did you ask the Town Attorney at the time when they were asked to change from LI to HB, why they chose HB? Page 45 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals CARMELA BORELLI: No, I don't know whether you have, I don't know whether this is an accurate statement in terms of that. It was suggested to them by I think they said Mr. Arnold originally. I don't know if that's the case. However, I do know that I came across today in going through the stacks of papers that I have out of the files of the various departments here at Town Hall that there were a series of supposed conferences. I think at that particular time just prior to the zone change Mr. Gasser was represented~'by Wickham, Wickham & Bressler. And there is various communications which I would be glad to dig out tomorrow and send to you where Dan Ross, Harvey Arnoff and other agencies I believe were talking about they want to have a conference, they should have a conference, they want a conference. BOARD SECRETARY KOWALSKI: We have all that in the file already. CARMELABORELLI: OK. And what happened was it was just not coming to fruition, and Harvey Arnoff (as Town Attorney) said in the letter of which you have a copy there was an exhibit in the prior brief that I gave you, it's time to get off the stick guys, you know you've got to do something here I can't and I believe he says, I can't sit back and let for the zone change. The fence may be this illegality continue and they had to go required by the government for the security of the weapons. I don't know if that is the case. There is nothing in the record so far that confirms that they are mandated to do that. However, the requirements for "that the government may have Page 46 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals the security purposes" do not preempt the Town's authority with regard to zoning. You have the ultimate authority with regard to the zoning requirements and the Zoning Code stipulates that. I don't care what the Federal Government says that have to do there. The Zoning Code takes precedence over that. Mr. Gasser in part of his reply just now said, they have live weapons there. It's the first time I ever heard that. We've been told everything doesn't work. MR. CHAIRMAN: Shells, shells. CA]~MELA BORELLI: Well, they still have a potentia! problem there if they have live weapons there. MR. GASSER: Licensed weapons. CARMELA BORELLI: I'm sorry? MR. GASSER: Licensed weapons. CARMELA BORELLI: OK, I take it back. The tower has been said to serve two functions that is a memorial function and a historical artifact. Last hearing, we were told that it was I refer to it in my brief as a gun tower and I was called to task for that for referring to that as a gun tower. It was not a gun tower. And I said that my recollection was that somewhere it was said that that's exactly what it was. Well, I brought another brief tonight which addresses that and a couple of other issues, and in there is a copy of a letter written by Mr. Gasser's attorney, I think it was in 1988, which specifically states that this was a tower that was in Mattituck and it was a gun emplacement tower. The name that has been given here and to which the speaker in support has said that it is a POW -MIA Tower, I, my feeling is that it is an acronym that has Page 47 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals been given to it to give it some appeal to this Board and to the public. By calling it that who could object. I mean, what am I objecting to? POWs, MIAs or the honoring of those people? No I'm not objecting to that, and I can think that's why the name has been given to this tower. MR. CHAIRMAN: I don't particularly care what it's "called." I mean, do you have any specific objection to it in its present place? variances to it support of this side and rear application that CARMELABORELLI: Yes. I have an objection to granting the because also in this brief you will see that in request for the variance that it doesn't meet the yard setback. The applicant has stated in the this is because the Planning Board is requesting One of the exhibits attached to this them to supply parking spaces. new brief that I have handed you tonight contained in that same letter from the earlier attorney which is 1988, I believe, that letter contains the statement that there are 15 parking spaces available at the site all the time. It actually it's in my prior brief. It's an exhibit in my prior brief. And that attorney in 1988 says, that there are 15 parking spaces available all the time on site and that was used as support for whatever they were asking for at that particular time. Now, we're being told you have to give them a rear and side yard setback variance because the Planning Board is requiring that they supply parking spaces. I mean we, we just have this consistent and constant changing of where you stand and what you're saying. It all depends on what you're asking them, what the Page 48 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals Planning Board is asking them and what comes up.' So the story changes. The mitigation changes. Everything changes. We've been told here tonight that our suggestion that they put up a building would require more variances. Please, I don't want to do this again. We've also been told that they will be able to display less artifacts. Well, that might be the case but they're not supposed to be displaying artifacts the way they're displaying them now. They've always been in violation of the code. Mr. Blasshas also said that they have mitigated the environmental requirements based on your request. One of the new exhibits that I have attached tonight is a memo that was written by the Chairman of the Planning Board in 1992 to the Town Clerk with regard to the request for a zone change. And he was referring to the environmental consultant's report at that time. And he says it here, "the Planning Board has reviewed the environmental consultant's draft recommendations for this project. The environmental review is too narrowly focused on the subject property alone. The review should have incorporated a wider area, namely the surrounding business district because the proposed change of zone will have an effect on that area." That's exactly the point in my first brief when I said that giving them a negative dec. under SEQRAwas inappropriate here. We can't just deal with the oil that comes out of the tanks. We have to deal with the whole context of what this is and what it stands for. Page 49 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals My client handed me tonight some pictures that were taken the 31st. These pictures show you what people see. OK, and some of them were taken just this past Sunday. You can see here that this tank actually extends over the fence. The fence which is illegal, the tank extends over. You can see where people see as they walk down this street, and this is the way you have to view this site in terms of SEQRArequirements. Now, Diane was telling me that she tried to capture but without a moving camera she couldn't. There was actually a tank being driven up and down the yard on Sunday. And she said that it went on for close to two hours. Now, we've been told tonight that the railroad passes by and makes a similar noise. Even if the noise is similar the train goes by, and it's gone. That tank went up and down making noise for two hours. In addition to which about that tower, Diane tells me that in addition to just the tower, people go up on the tower. They stand on the tower. They walk around the tower. And on top of the tanks. Not on the tower, on the tanks. So, we have this constant viewing of what is not supposed to be there. I mean it's just- it's illegal. MR. CHAIRMAN: Can I justask a question before you go on? MS. BORELLI: Of course. MR. CHAIRMAN: I don't mean to a, first I shouldn't be calling you by your first name, I apologize. Assuming that we had inside storage and assuming that it necessitated them to move these vehicles on a bimonthiy basis or once a month or whatever to keep them lubricated, I know we've referred Page 50 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals this, we've talked about this area before, what can we do on that portion of Mr. & Mrs. Amaretti's porch, as they look Out toward this, notwithstanding the noise issue of the running of the tank. What can we do concretely that would make your clients happy? It goes back to the wish list I asked you, so that they would be shielded. And I'm not talking about the slating of the fence because when the culmination of the decision out slatted. I do concur with Mr. the way to the end so that he of this hearing the fence will be Gasser, it should not be slatted all has visibility when he pulls out and I'm talking 6 feet. Tell me what we can do at this particular point, so as Mr. & Mrs. Amarettiwill never see unless of course the plants die, alright, these particular bushes, whatever has to be built, you know, we can start at six feet. We can start at eight feet. Whatever it is and we can construct something then. We can put this embodied in a decision, alright, because I'm saying to you that this is not going to go away. We are not going to stop these people from the operation of these tanks. If there inside or outside, they're going to have to operate the tanks. There are six tanks there, or six vehicles there, not road vehicles but six vehicles there that have to be operated so that they don't become fused, alright. So, that's something you've got to talk to us about before we finish this hearing. CARMELABORELLI: My response to the prior request about a wish list was that we didn't have a wish list. I mean, it's unfortunate to tell you that we're just totally disillusioned with the Town of Southold. Page 51 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals MR. CHAIRMAN: I understand, so tell me now, forget the wish list, tell me what we can put there? What we can have professionally done, alright, so that these people do not have to see people walking on tanks or whatever the case might be. CARMELABORELLI: Put them inside a building. MR. CHAIRMAN: But, they still have to be moved. Ok. That's the issue. They're going to be moved outside. You cannot operate a diesel tank inside a building. They're going to be asphyxiated. CARMELABORELLI, ESQ.: They have a back part of their property that fronts on Love Lane MRS. AMARETTI: On (County Road) 48. MR. CHAIRMAN: Even if the nature of this Board was to tell them that they are not permitted to operate a tank outside a building, by the time they call the police, the police came down, cited Mr. Gasser for it, which is not going to be the case, alright, because we understand they have to operate a tank outside a building, alright And I'm talking about the moving of the tank alright, which is what I think Mrs. Amaretti was referring to this Sunday. Tell me what you want us to put embodied in a decision so as to shield their property from the Amaretti property? CARMELA BORELLI: You know, I get the feeling that I'm being asked a question that the witness on the stand is asked by the attorney who says, when did you stop beating your wife, which means that just by answering that question you have to admit that you were beating your wife. So, by asking me the question that Page 52 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals you're asking me now, you're really asking me to give you a wish list. And what I'm saying --- MR. CHAIRMAN: No, I'm just asking you to tell me what kind of trees you want. CARMELA BORELLI: Well, I'm saying my answer to that is, make them comply with the zoning code. Put it inside a building and make them meet the setback and the rear yard requirements because that's what they're supposed to do. That's what they should of done since 1980 and that's what I'm asking. Anything other than that I am conceding that we think that something else is less reprehensible than what it is now. And I can't do that. MR. CHAIRMAN: Alright. I understand. I'm sorry, I hope that didn't upset you. CARMELA BORELLI: Oh, no. It didn't upset me. Let me see if I have anything else to make comment on. I think, I took a quick glance at Mr. Blass'smemo. He contends in Point I and Point II that the applicant meets the practical difficulties test which is the legal test for getting an area variance. I think that that is, you can't meet the practical difficulties test by producing just this written report and by producing your application which says, it's difficult for me to do this. You have to have some other supporting documentation that isn't a se]f-serving statement or the fact that the Planning Board is making me do this and therefore it's a practical difficulty. So, I do not believe that they have met either of those tests. The 267B or the practical difficulties test. Page 53 - Hearing Transcript Regular Meeting of February 1, ]995 Southold Town Board of Appeals I also, there is a contention in here which I'm not, on page 7, that we're supposed to give them some greater leniency here because they're a Not-For Profit Organization but everybody has to comply with the law no matter whether you do it for money or you don't do it for money. And despite what this says in here they have never, ever met the zoning requirements, no matter what it was. That's it. MR. CHAIRMAN: Thank you. CARMELABORELLI: Thank you. GREG BLASS: Just briefly, Board Members. I wanted to say that counsel for the objectant and I read the zoning code differently. The HB Zone does provide in Section 100-91 of the Code that subject to site plan approval by the Planning Board, one use that is permitted in the HB Zone is libraries or museums. We comply with the zoning code not only by the use that the code lists but also by the variances that can be granted from the Board that has primary jurisdiction over interpreting the code. And that's this Board. So to say that you either comply with the zoning code or you don't - why is there a Zoning Board of Appeals? That's why we're here. We think that the economics and a neighborhood considerations that come to play are very important. We would also point out not only did the objectant move in six years after this operation was well under way, but they actually took trees down, a number of them. Pine trees - that were between the properties. And further we have offered, we reiterate the offer that we will plant a line of either Hemlocks or whatever preferable evergreen, screening, shrub is requested between the properties at Page 54 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals our cost and expense to deal with the issue of what they see, but the fact is that HB, but for outside display, does permit the museum operation and we are asking that the variance be granted for the outdoor display that we seek. MR. CHAIRMAN: Thank you. How high is the existing building? Do you have any idea? MR. BLASS: How high? I think it's 25 feet. I hate to, I'll have to double check it with my client. It's pretty high. 20. 25. MR. CHAIRMAN: Yes, it's pretty high. It's about 2-1/2 story, well to the peak. They do a different thing in the State Construction Code. They take the mean roof line, actually you have two roof lines cause it's a double fan that comes down, but they take that upper roof line and they bisect it halfway and they said, that's the actual height. So it's, even though you may be saying it's ( ), it's really half of that amount so, it's probably 22, 23, maybe. I don't have anything else at this point. I just do want to mention. Do you have something? MEMBER VILLA: Yes, I have a question. It's been eluded that the equipment and machinery has to be moved. Now, there are plenty of places that have standby generators that have to be operated periodically to be sure that they're in operating condition. They don't operate them for two hours. What would be your minimum of time that you would have to run some. You know, if you're there on display and you're running it around just to show people how it moves, that's one thing but that .... Page 55 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals MR. GASSER: We cycle. We had an event that day. The club made a reservation for the Military Club to come in and to tour the facility and we sporadically ran each vehicle throughout the day. I think Mr. Goehringer might even have witnessed it. Ok. They weren't running continuously for two hours. What you saw is start, stop, start, stop, start, stop, start, stop, that was the operation. With various vehicles. MR. CHAIRMAN: Would you normally do that every Sunday? MR. GASSER: I wish I could. No, I can't. MR. CHAIRMAN: Yes, Sir, would you just state your name for the record please. Thank you. STEVE FOX: You have to excuse my voice - I don't know what's going on here but it's not working properly. My name is Steve Fox. I'm an unpaid volunteer at the museum. After hearing the profit line, I know I will continue to be that way for the indefinite future - which is fine. I didn't ask for a profit. I'd just like to reemphasize that the safety record of the museum is impeccable. We have never had an incident of any negative consequence. We've never had a consequence. As a direct result of the security measures that have been taken, and we continue to enforce those on a regular basis. I myself and one of the armed guards at the museum, licensed. I'm also a former police officer, although currently I'm a public school teacher and have been for the last 25 years and even in that regard I have to comment again on how the public reacts to this type of a tourist attraction. I mean, the reactions are just incredible. I'm speaking on a very Page 56 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals positive note. I have yet to meet anyone who is, I'm also one of the guides in the museum. I have yet to meet anyone of any age, of any gender who is not pleased or impressed to some degree with what we have. It is a unique organization. It is a unique site. We had an opportunity this past summer to travel to Anniston, Alabama, to make a trip to require to pick up some tank parts that the army had allowed us to retrieve and we were a subject of endless questions by all the people that we ran into down there. They were just impressed to the ends degree with what we had to tell them as to what we had to offer. They just couldn't believe what we have and that we have it opened to the public and that we are a live museum. I emphasize live. I mean that's tantamount to the explanation to the running of vehicles and the licensed material which is on the property. Again, it's something which is just not comparable to anything, anywhere, and I think you would have to go to a federal facility to find something of comparable value or comparable interest and to even question its validness for being here or to have any concerns regarding safety which I can understand some people have. We, I believe it's satisfied. We have the safety well in check. The ultimate concern seems to be, why is it there. It's there to train people, to inform them, that we are an information center. We are a historical site. We have an opportunity to inform and to correct people's views and we're not there to really tell them a story. We just present them the facts. I can't help but think about the Annulaga controversy that's going on now with Smithsonian where there was a concern that there was an over emphasis perhaps on the Page 57 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals original exhibit that they were portraying the Japanese as the victims or perhaps others wanted to portray the Americans as the victims and now they've concluded, well we're neutral. Well, we're just going to present the facts and let the people make their own conclusion and basically that's what we do. We are not there to glorify, we're not there to moralize. We are there as a service to the public to provide them with information that they will seek or wish to know. And I think we do a pretty good job and it would really be a travesty on so many levels to jeopardize that in anyway. So I hope you will consider that. MR. CHAIRMAN: Thank you. (Secretary changed tapes.) MR. CHAIRMAN: We're ready. CARMELABORELLI, ESQ.: I just want to remedy any impression that you or the applicant may have gotten with regard to my characterization of the items at this museum. I am a museum goer. My minor in college was history. I probably read every book about every major military leader there is out there because their logistics and their strategizing interests me only may be because of the profession that I've chosen, but I don't want you to get the impression that I and/or my clients are opposed to a museum and/or a museum that has weapons from the government from various armed conflicts. I would like to erase that from your minds if that is the case because that's not where we're coming from. MR. CHAIRMAN: I am led to believe that there are no weapons there other than the weapons that are licensed, OK. Everything that is Page 58 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeals there has been disarmed or else they would not be permitted. So, I do understand with what you're saying. I'm just saying to you that on the surface they look like weapons but they're really not weapons because they've been disarmed. CARMELABORELLI: Well, we're, we're talking semantics here as to how you categorize it based upon its prior it's irrelevant. What I am saying is that is not our objection. I mean it's neither mine nor my clients. We don't object and I would like to make the record clear on that. That's not where we're coming from. We're talking strictly from a zoning aspect with regard to compliance here in the town and how we object. That's all. MR. CHAIRMAN: Thank you. MEMBER WILTON: I think we had asked for a shopping list to try and get a better understanding ourselves to find out what your clients real concerns are. Are they concerned about noise, are they concerned about appearance, smell, you know, what are the major ill features ? CARMELABORELLI: Well, I mean they'll probably named some of them. I mean, it's noise that they object to. MEMBER WILTON: Is one more important than the other? CARMELA BORELLI: It's, it's visual. It's visual what they object to in terms of that it. It permeates the atmosphere, permeates their piece of property. It permeates that part of Love Lane. that's what we're talking about. We're, we're talking about this, this outside display of this equipment and the noise it creates. In the past, I don't think it's happened recently but in Page 59 - Hearing Transcript Regular Meeting of February 1, Southold Town Board of Appeals 1995 ended, we don't together. MEMBER WILTON: CARMELABORELLI: MEMBER WILTON: CARMELABORELLI: MRS. AMARETTI: the past they even had trespasses on their property from people who didn't want to pay to get into the museum so they would come around on their property to look through the fence. have that anymore, but it's And I think that has all those things put I have one more question before we close the hearing. we've talked about alternate sites. We talked about of moving over to the next door property Bill (Gasser), the possibility regardless if it's So, everything you don't like? That's about it. That was the conclusion I was drawing. That's about it. There's also you know limit to what comes on the property. Every time we turn around - if you look back at some the pictures, there are small tanks there that you can barely see. Even with the barbed wire. With everything new that's coming in, it is bigger and higher to the point, whatever they're called, that the ends are bigger, there's a helicopter, every timewe turn around and look out, it's something bigger, something more. There's more than six tanks in front of us right now, if you go look tonight. Look in the picture you can see more than six tanks. But there's no limit. Every timeyou turn around and there's never going to be a limit because there's always something bigger that he can put up there. And you see what we're looking at from our door. MR. CHAIRMAN: Just for the record, for the person taking this down, that was Mrs. Amaretti. Thank you, Diane. Lee's see. Page 60 - Hearing Transcript Regular Meeting of February 1, 1995 Southold Town Board of Appeais conforming and non-conforming. You've explained to me the problems over there. I realize that one of Mr. Blass' jobs is as a very astute County Legislator have you approached anybody in the County at anytime for an alternate location? Mr. GASSER: Yes, many, many times. MR. CHAIRMAN: And what's developed there? Mr. GASSER: It's something similar to what Engine 39 is running into. We're running into a budgetary thing where there is no lending port in considering the new administration in the State it would look very chancey if anything could ever happen like that. I'd be thrilled. I'd be thrilled if somebody wants to find a new home for me that's suitable for us to move into, that would not cost us a fortune in ( )versions and transportation, I'd be all ears. It just doesn't seem like it's going to happen. CARMELA BORELLI: Would the Chairman enlighten us as to what discussion and what piece of property you're talking about? MR. CHAIRMAN: I had asked Bill in the past about the possibility of procuring the piece to the east between Mr. Brown's prior, it's still called K.G. Brown's but I think somebody else is buying the piece, and there's a piece in between. CARMELA BORELLI: The other side of the building? MR. CHAIRMAN: The other side of the building, yes, Ok. CARMELA BORELLI: Thank you. MR. CHAIRMAN: Alright, hearing no further comment, we thank you all for your courtesy. We are, I am, and I have to admit to you and I'll go back to the last comments that I had was the prior, prior, Page 61 - Hearing Transcript Regular Meeting of February 1, 1995 Southo]d Town Board of Appeals prior, prior Town Attorney, who was a gentleman who was just an unbelievable individual Robert Tasker, and he said, "Jerry, you don't want to leave the person with the intention that you are going to make a negative or positive decision." But I think it goes back symmetrically, Ms. Bore]Ii, when I told you that we're going to try and put this thing to bed. You may not construe it to be to bed, but we're going to try to put it to bed, alright. I hope that whatever comes out of this decision, that it is put to bed, but it may not be, so, that's all I can tell you at this point. As for the ArmouredFoundation, you know, I understand the situation that you ladies and gentlemen are in and I'm going to do the best I can in my particular position here. And we are an interesting group of individuals. Most people that have spent time on this Board and have just been - the dedication is just unbelievable. And we'll do the best we can. That's all I can tell you. Thank you again. Hearing no further comment I'll make a motion closing the hearing reserving decision until later. MEMBER WILTON: I'll second that. MR. CHAIRMAN: All in favor? BOARD MEMBERS: (All Ayes). Prepared from audio tape recording Prepared by Lucy Farrell and Linda Kowalski CHANGE OF ZONE NO. 13a. WHEREAS, a petition was heretofore flied with the Town Board of the William F. Gasser and Town of Southold by requesting a change, modification and amendment of the Building Zone Ordinance including the Building Zone Mops made apart thereof by chang- kcJht ndustrial ("LI") District and ng fromR, e.~.l.d..e..n..t.i.a..I...O..f..f.i..c..e..('.'.R-O"l~istrict to .H. amle.t.. Bt~.s.!.ge.s.s....(.'.'..H...B.") District the property described in said petition, and WHEREAS said petition was duly referred to the Planning Board for its investigation, recommendation and report, and its report having been filed with the Town Board, and thereafter, a public hearing in relation to said petition having been duly held by the Town Board on the ...1. fl~.[1 .......... doy of ...... I~Q.v..e.~.b.e.C ....................... , 19.~).~...., and due deliberation having been had thereon NOW, THEREFORE, BE IT RESOLVED that the relief demanded in said petition be, ond it hereby is GRANTED, based upon the Declaration of Covenants and Restrictions filed in the Office of the Clerk of the County of Suffolk in Deed liber 11651 at Page 134, and Recorded on November 8, 1993. DATED: December 16, 1993. SOUTHOLD TOWN CLERK Town Hall, 53095 Main Road P.O. Box l 179 Southold, New York 11971 TELEPHONE ($~6) 765-1938 PLANNING BOARD OFFICE TOWN OF $OUTHOLD December 20, 1988 John P. A. Marcin 115 Atlantic Avenue Hempstead, New York 11550 Dear Mr. Marcin: RE: American Armoured Foundation Inc. Museum SCTM #1000-140-2-16 The Planning Board reviewed your correspondence dated October 24, 1988. A site plan is not required unless a structure is being added to the site. It is not clear from the letter what structure (s) is being proposed. If you have any further questions, please do not hesitate to contact this office. Very truly yours, BENNETT ORLOWSKI, Jr. CHAIRM3LN cc: Vincent R. Wieczorek, Building Department VS/jt PLANNING BOARD MEMBERS Bennett Orlowski, Jr., Chairman George Ritchie Latham, Jr. Richard G. Ward Mark S. McDonald Kenneth L. Edwards Telephone (516) 765-1938 RECBV~B AU6 1 8 1992 PLANNING BOARD OFFICE TOWN OF SOUTHOLD SCOTT L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Attgust 18, 1992 Judith T. Terry, Town Clerk Town Hall Southold, New York 11971 Re: Petition of William F. Gasser and The American Armoured Foundation, Inc. for a change of zone from Light Industrial & Residential Office to Hamlet Business SCTM # 1000-140-2-16 Dear Mrs. Terry; At its public meeting on August 17, 1992, the Planning Board adopted the following report: The Planning Board has reviewed the petition of William F. Gasser and The American Armoured Foundation, Inc. for a change of zone and offers the following observations and suggestions: DESCRIPTION The subject parcel is a split-zoned parcel of 32, 109 square feet in area. Approximately 60 by 150 feet or 9,000 square feet of the property is zoned Residential Office. The remainder, 23, 109 square feet in zoned Light Industrial. The 54 by 120 foot corrugated metal building on the property lies within the LI zone, as does the 8 by 8 foot tower. HISTORY [as can be reconstructed from our records) It appears from the records at our disposal, that since its inception, (in either 1980 or 1981), this museum has been operating in violation of the Code. In 1988, the property owner was notified by the Ordinance Inspector that he was in violation of the Zoning Code. At that time, the part of the property that is now zoned for Residential Office was zoned "A" Residential/Agricultural. The part of the property that is now zoned Light Industrial was zoned "C" Industrial. A copy of the prior zoning map is attached for your convenience. The violations on the site under the old Code were as follows: The property owner had not obtained approval for a museum. {Unless there was a specific ruling or official interpretation of the Zoning Board of Appeals that stated otherWise, a museum was not an allowed use in either of those two zoning districts.) Also, the tower had been installed without a building permit. And, its height (20 to 25 feet) exceeded the eighteen feet permitted for accessory structures. In 1989, the Town adopted a new Zoning Code and Map. Under that Code, the museum is not a permitted use within the LI zone. But, it is permitted within the RO zone by Special Exception from the Zoning Board of Appeals. However, the museum building, the tower and about 72% of the property are located within the LI zone, not the RO zone. The tower height not only violates the Code's restrictions on accessory structures, but it lies within the required front yard setback. In 1991, an application was made for site plan approval. However, the Planning Board was required to notify Mr. Gasser that it could not proceed with the application because he had not obtained the necessary variances from the Zoning Board of Appeals. {The Code specifically prohibits the Planning Board from granting approval to site plans before the Zoning Board grants the necessary variances or Special Exceptions.) In August of 1991, an memorandum was circulated among Town departments that while the use of the property as a museum was not allowed by the Code, the use had been allowed to continue for many years. On December 20, 1991, a Disapproval Notice was issued which noted that the use is non-conforming. An application for variances was made by the applicant to the Zoning Board of Appeals in the spring of 1992. In March of 1992, the applicant's attorney informed us that the Zoning Board had returned the application to him for lack of information. In April of 1992, the applicant's attorney requested the assistance of the Town Attorney's office. In July, 1992, this petition was made for a change of zone from RO and LI to Hamlet Business. CONCLUSIONS The Planning Board has reviewed the old and new zoning maps for the Mattituck Business District. The request before the Town, if granted, could be considered a spot zoning unless supported by an in-depth study of the zoning pattern in this business district. This Board feels strongly that the zoning designations of all lots in the immediate business district bear closer scrutiny. Consequently, we are asking to be a coordinating agency during the environmental review. Our recommendations as to the determination of environmental significance of this petition will be sent to you after we have had an opportunity to review the report of the Town Board's environmental consultant on this petition. If you could send us a copy of that report, it would be appreciated. This Board will also undertake its own study of the ' zoning pattern in this area in conjunction with the environmental review. Sincerely, Bennett Orlowski, Jr. Chairman Encls. Creek ~tiluck PUBLIC HEARING SOUTHOLD TOWN BOARD November 10, 1992 8:00 P.M. IN THE MATTER OF THE PROPOSAL OF WILLIAM F. GASSER AND THE AMERICAN ARMOURED FOUNDATION, INC. TO AMEND THE ZONING CODE (INCLUDING THE ZONING MAP) OF THE TOWN OF SOUTHOLD, NEW YORK. Present: Absent Deputy Sup~¢v.i$or .George L. Penny IV Justic~ Raymond-'W. Ecrw'ards Councilman Thomas H. Wickham Councilman Joseph J. Lizewski Councilwoman Alice J. Hussie Town Clerk Judith T. Terry Town Attorney Harvey A. Arnoff Supervisor Scott L. Harris DEPUTY SUPERVISOR PENNY: The notice of this public hearing will be read by Councilman Wickham. COUNCILMAN WICKHAM: "Legal Notice. Notice of hearing on proposal to amend Zoning Ordinance and Map. Pursuant to Section 265 of the Town Law and require- ments of the Code of the Town of Southold, Suffolk County, New York, a public hearing will be held by the Town Board of the Town of Southold, at the Southold Town Hall, Main Road, Southold, New York, at 8:00 P.M., Tuesday, November 10, 1992, on the proposal of William F. Gasser and the American Armoured Foundation, Inc. to amend the Zoning Code (including the Zoning Map) of the Town of Southold, Suffolk County, New York, on certain property located on the east side of Love Lane, north of the Long Island Railroad and frontage on C.R. 48, Mattituck, New York, by changing the current zoning from Light Industrial ("LI") District and Residential Office ("RO") District to Hamlet Business ("HB") District. Any person desiring to be heard on the proposed amendment should appear at the time and place above so specified. The legal description of the aforesaid property is as follows: All that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being at Mattituck, Town of Southold, County of Suffolk and State of New York, which is bounded and described as follows: BEGINNING at a point on the corner formed by the intersection of the northeasterly side of Love Lane with the northwesterly side of property of the Long Island Railroad and from said point of beginning: running thence northwesterly along the northeasterly side of Love lane North 35 degrees 17 minutes 40 seconds West 50 feet; running thence along the land now or formerly of MacMillian North 45 degrees 05 minutes 00 seconds East 187.64 feet; running thence along the land now or formerly of Pg 2 - Change of zone Ame" Arm. Found. MacMillian and Hawkins North 35 degrees 17 minutes 40 seconds West 336.23 feet to the southeasterly side of Middle Road; running thence northeasterly along the southeasterly side of Middle Road, North 55 degrees 02 minutes 20 seconds East 60.00 feet; running thence South 35 degrees 17 minutes 40 seconds East along the land now or formerly of Wines 375.72 feet to land of the Long Island Railroad Company; running thence along land of the Long Island Railroad Company South 45 degrees 05 minutes 00 seconds West 248.50 feet to the corner aforesaid and point or place of BEGINNING. Suffolk County Tax Map No. 1000-140-16, Area: 32,109 sq. ft. Dated: October 6, 1992. Judith T. Terry, $outhold Town Clerk." I think most of you know, that this is the property, where there is a Tank Museum operated by the American Armoured Foundation, Inc. in Mattituck. I have notifications here, that this notice has been duly posted on the Bulletin Board outside the room. It has appeared in Suffolk Times, a weekly newspaper published in Mattituck on the 29th day of October, and it has also, appeared in the Long Island Traveler-Watchman, also on October 29th. I have a letter here from Mr. William Stilwagon, Executive Director of Vietnam seminars, and consultanting. Dear Supervisor, and all Board members, This letter concerns a change of zone application by the American Armoured Foundation. I have lectured on war internationally, and have visited military museums in Russina, Ukraine, Poland, France, and the Netherlands, as well as across the United States. I can attest with first hand knowledge, that the AAF Museum is a world class in presentation, and quality. The AAF could serve as the touchstone by which other military musuems be measured. You should feel very proud to have such a superb museum in your township. Therefore it is with confidence, that I ask you to grant the change of zone regarding the American Armoured Foundation property. Thank for the opportunity to address this most important matter. I have comment from the County of Suffolk on this application for requirements, etc. etc. A decision is considered to be a matter for local determination. A decision of local determination should not construed as either an approval, or disapproval by the County. I have, also, a notice here from the Planning Board of the Town of Southold, dated August 18th. Dear Mrs. Terry, At it's public meeting on August 17th, 1992, the Planning Board adopted the following report. The Planning has reviewed the petition of William F. Gasser, and the American Armoured Foundation, Inc. for a change of zone, and offers the following observa- tions, and suggestions. Description: the subject parcel is a split zoned parcel of thirty-two thousand some square feet in area, approximately 60 x 150 feet, or nine thousand square feet of the property is zoned "RO" Residential Office. The remainder is zoned light industrial. The 54 x 120 foot corrugated metal building on the property lies within the "LI" zone, as does the 8 x 8 foot tower. History: As can be construed from this. I wonder. This is rather lengthy and I think I'll skip through the history, and proceed to the conclusion. Those people, who are interested, there are copies in the Town Clerk's Office. If people are interested in the history, there is a about a page and a half of text, with that history. Conclusion: The Planning Board has reviewed the old and new Zoning Maps for the Mattituck Business District. The request before the Town, if granted, could be considered a spot zoning, unless supported by an in-depth study of the zoning pattern in this business district. This Board feels strongly, that the zoning designations of all lots in the immediate business bear closer scrutiny.' Consequently, we're asking to be a coordinating agency during the environmental review. Our recommendations as to the determination of environment significance of this petition will be sent to you, that means to the Town Board, after we have had an opportunity to review the report of the Town Board's Environmental Consultant on this petition. If you could send us a copy of that report, it would be appreciated. This Board will also undertake it's own study of the zoning pattern in this area, in conjunction with the environmentaly review. Sincerely, Bennett Orlowski, Jr., Chairman. That's all the documentation we have on hearing before us tonight. Thank you. Pg ~ - Change of Zone Am~'- Arm. Found. DEPUTY SUPERVISOR PENNY: Are there any parties at this time, that would like to come forth, and speak either for, or against, or of any concerns of this Change of Zone application? Please come to the microphone. There's one on either side of the room, and identify yourselves. That's for the record. DAN ROSS: If it please the Board, I'm Dan Ross of Wickham, Wickham, and Bressler on behalf of the applicants William Gassner and the American Armoured Foundation. I'd just like to hand up the report. I don't know if you have available surveys of the property. As the survey indicates Mr. Gasser's property opens out to Love Lane, and the North Road. It's an L shaped lot. To the South is the Long Island Railroad, below the Long Island Railroad property the property is zoning Hamlet Business. To the East is mostly Light Industrial property. There's, also, Residential Office zoned property to the East. To the North is the North Road. Across the street on the North Road is Marine-2 zoned property, and Business zoned property. To the West is Residential Office, Hamlet Business and of course, Love Lane. Across Love Lane is Light Industrial zoned property. As you can see, this property, the property of issue, which is Light Industrial, and "RO" is virually surrounded by Hamlet Business, Light Industrial, and Commercial type zoned property. Property, that's zoned Light Industrial under the Code,with Special Exception, can be used, among other things, for a bus terminal, for food processing plants, for sauerkraut manufacturing plant. On the other hand, the "HD" zone would allow a museum to operate there, which the Light Industrial doesn't. The zone change is necessary, because the town's position that the "LI" zone is not allowed in using to operate that musuem, and the "HD" zone does. A little history with respect to this matter. First, I take issue with part 3 of the EAF, the Environmental Assessment Form, that was provided by the Town. It indicated that the operation has been in violation of current zoning since 1988, and no one was notified of such. In fact, the original complaint from the Building Department in 1988 stated that there was no site plan for that part of the property, that was zoned residential, indicating that the rest of the property was operating okay from the zoning standpoint. TOWN ATTORNEY ARNOFF: Is that what the letter said, that the rest of the property was okay? DAN ROSS: No. I'm indicating, and saying, that residential needed a site plan, indicating that the rest is not. In 1989, the Planning Board determined that a site plan approval was necessary. In a letter from the Planning Board in 1991, the Planning Board indicated that to acheive compliance with the Town Code, a site plan application is necessary. So, even the town thought, felt that the museum was operating in compliance with zoning, at least the majority of the lot. In any event, the point is Mr. Gasser has taken every step, that the Town has requested. He made an application for site plan, and provided information requested by the Planning Board. In late 1991, the Planning Board indicated that a variance would be required, and Mr. Gasser made an application to the ZBA, in which he provided information to the ZBA, and they told him in '92, there was an indication from the Town, that the use of the property was not appropriate for the zone within which it was located, and there was a suggestion, that the zone change application be made, and that application is before you. There are various reasons to grant this application. The most important is that, the present use of the property compliments the surrounding property. We all know the property is right in the middle of a business district of Mattituck. The property is near the railroad, where parking is available, and there is an under- standing between the operators of the museum, and the bank in respect to parking on the bank property, next to the railroad. The museum encourageous tourism. Pg 4 - Change of Zone Am . Arm Found This is a goal that was identified in the 1991 US/UK Stewardship Report. don't think we need a report to indicate the stressing points of tourism to the Town of Southold, and this is well..in Mattituck that brings tourism into the town. The report as logic would indicate that you can't have tourism without some plan- ning, so the environment isn't disturbed. In fact, I suggest that the environment isn't disturbed in this case. It's right in the middle of a business district. It's in a hamlet area. It's enclosed. There's parking available. It's a perfect spot for that use. It's a tribute to our Armed Forces. Another reason why it should be granted. Mr. Gasser advises that there has been 50,000 to 60,000 people, who have visited the Foundation, since 1981, Generals, Congressmen, State Officials, school children, Boy Scouts. There are tours for the disabled for the handicapped, that have been provided. The foundation provides exhibits for libraries, the Strawberry Festival, participates in parades. Mr. Gasser is emisary for the town from Mattituck. With respect to control of the operation, there are a number of government organizations, that have some say in the operation. (tape change) Department of Defense, Town Police, Sheriff's Office, Suffolk County Police. This is not a money making venture. It's just the opposite. All funds, that are brought into the Foundation, go back into the Foundation, plus financed additionally by the Gassers. There's no grants. There's no public money. The Foundation pays real property taxes, and sales taxes. The Foundation operates with volunteers, many of whom are here tonight. I don't have to tell the Board that, the American Armoured Museum has newspaper articles about it from time to time, provides good press for the Town of Southold, and for Matti- tuck, and as the last item, I'd like to hand up to the Board without reading each letter, I'd just like to indicate who they're from, from the Commander of Raymond-Cleaves Point, 861 American Legion in Mattituck, a letter encouraging the grant of this application, from Mattituck, Veteran's of Foreign Wars Memorial Post, again, a letter encouraging passage, from Mattituck Sanitation, John DiVello in support, from Vietnam Seminars, which I believe was read earlier to the Board, from New York Army National Guards in Riverhead by the same manager, from LaSalle Military Academy, from the Department of Army, a letter not requesting in respect to this application, but generally praising the musuem, from the Seaford American Musuem, from a musuem in Middle Country, from the Long Island Military Vehicle Club, from Pack 47, Wolf Den 5. Those are all letters stating highly of the Foundation Musuem, and in support of the application. I'd like to hand them up, and make them part of the record. I would like an opportunity to keep the record open for the limited reason of responding to the Planning Board a report, a written response. It would be brief, and I don't need a lot of time. I haven't had a chance to review it. That's all have now. Thank you. DEPUTY SUPERVISOR PENNY: Excuse me, Mr. Ross, do you have a copy of the Planning Board's report? Do you require a copy? DAN ROSS: No, I don't. I would like one. DEPUTY SUPERVISOR PENNY: That will be available at the Town Clerk's Office. TOWN CLERK TERRY: I'll make sure you get one. DEPUTY SUPERVISOR PENNY: At this time, is there someone else, who would care to speak on this change of zone application? Please come forward to the microphone, and state your name for the record, please. ~. Pg 5 - Change of Zone, Amer. Arm. Found. AUDREY WATSON: I am Audrey Watson from Mattituck. I've been involved in advertising in the area for about ten years, and as an advertising consultant in the area, I can certainly testify to the fact, that without a doubt the Armerican Armoured Foundation has been a leader in.the community in advertising for the past ten years. They attract tourism, and they enhance the social entertainment of our town. With an average of 5,000 people coming to the Musuem for a year, according to tourism statitics, this means an average of $5.00 to $7.00 based on persons coming there. They spend money outside the musuem, leaving approximately in our businesses, a bottom line, at least $25,000.00 to $35,000.00. I believe that they're valuable in Mattituck, as well as the surrounding towns, and we can not lose their business in our time of financial crisis. Thank you. DEPUTY SUPERVISOR PENNY: Thank you. Is there someone else at this time? JAMES HINSCH: My name is James Hinsch, and I'm representing the Mattituck Chamber of Commerce. The Mattituck Chamber of Commerce Board voted unanimously to support the zone change. The Mattituck Chamber of Commerce feels that the Tank Musuem is very important element in the tourism in the Town of Mattituck. It's been said several time how many people yearly it attracts, and we feel it's a very important element in the attraction in Mattituck. CARMELLA BOREI_LI: I'm Carmella Borelli. I'm with theoffice Marie Ongioni, and we are representing the adjacent property owners, Frank and Diane Ammirati. I have a memo, and exhibits, which I would like to hand up to have entered into the record, and we've made copies for everybody. I would like to briefly go through the facts, regarding this piece of property, and it's history, just to get them out on the record. The property was bought by Mr. Gasser in 1981. It was at that time zoned, "C" and Residential. Prior to the purchase in 1980, Mr. Gasser had an informal meeting with the ZBA. Now, some of the exhibits, or most of the exhibits that you have come from the records of other Town Boards, and are not part of the Town Clerk's Office, and that's why we put them together, to give them to you as exhibits. At that informal meeting, Mr. Gasser stated that he had a hobby of armoured vehicles, and he was interested in converting the exixting storage building on the property to a musuem. He was advised by the Board, that they could not render an opinion without an application. An application was never put in to the ZBA at that time. The certificate of occupancy, which was issued to the seller at the time, stated that the property was zoned "C" . The previous portion of the zone "C" is now zoned "LI", and the portion fronting on County Road 48 is currently zoned "RO". At that meeting, that Mr. Gasser attended, he was accompanied by a real estate agent, and we are assumed,that real estate agent was very familiar with the Southold Town Zoning Laws, and that he was aware that a museum was not a permitted use in the zone at that time, nor is it a permitted use to the zone at this time. At some point after the purchase, Mr. Gasser began placing armoured weapons at the site, and designated the parcel a tank musuem. Signs to that effect can be seen on the major roadways, that come into the town. At no time since the purchase of the parcel in 1981 has the musuem been a permitted use at that site. In the fall of 1988, Mr. Gasser installed a gun tower, which is right near the Love Lane entrance. A complaint was made to the Building Department about that, and Mr. Gasser was informed on September 20, 1988, that the tower, itself, was in violation of the Zoning Code, and it had been placed there without site plan approval. A report of the Building Inspector to the Planning Department in 1989 gives a history of this site. It's says, that the Building Department had been receiving complaints concerning the musuem regarding parking and tres- passing on adjourning propert~ When theyinvestigated they found violations. Pg 6 - Change of Zone Am~-. Arm. Foundation The first was that the tower was installed without obtaining a building permit. The second was that part of property was zoned Residential Agricultural, and it was being used for a business for profit. The third was that site plan approval had never been obtained. In 1989, the Planning Board determined, that site plan was necessary, and then, it seems to have gotten lost in the cracks. There is a two year gap in the files of all Town Boards in regard to this property from 1989 to 1991, when the musuem continued in operation, still in violation of the Code, but nothing was done. There was no fine, no requirements, that the applicant comply with any of the Town's Code. In February of 1991, Mr. Gasser was asked to submit an application for a site plan approval. His attorney requested a waiver on the basis, that the musuem had been in operation for ten years. That 'statement was such, that it was replied to by the Town, that it may have been in operation for the ten years, but it was improperly in operation for the past ten years. Finally in March of 1991, Mr. Gasser was advised by the Planning Board, that the applicant that the application was expected within thirty days, or the matter would be turned over to the Ordinance Inspector. However, in August of 1991, Mr. Gasser was informed by the Planning Board after they reviewed the site plans, and inspected the site, that he really had to go to the Zoning Board of Appeals first, because he need a variance to have a placement of that gun tower, which is in violation of height required, and the setback requirements. Mr. Gasser waited four months before he went to the Building Deparment to get a notice of disapproval, and he waited six months before he applied to the ZBA, which was not until February of this year. His application before the ZBA was returned, because it was incomplete, and I call your attention to Item B of the ZBA's letter, which when it returned the application request, quote, a copy of the Certificate of pre-existing Use supporting documentation making reference, and certifying the non-use under which this application is requested. Apparently the applicant at that time, when the filed the application with the ZBA, had claimed to be a pre-existing non-conform- ing use. The subject premises were never of pre-existing non-conforming use, because the tank musuem didn't come into existence until Mr. Gasser purchased the property, which was in 1981. The application for a variance was never was never renewed, and the site plan approval was never pursued. In fact, the applicant was before this Board, because the Town Attorneys wrote a letter to the applicant's attorney, and said, you have to do something, and that is why they are here. I would like to call your attention to the EAF, that Mr. Ross takes exception to in terms of the Town's consultants taking exception to the EAF. You have to view the EAF in the context of that the questions were answered, that on the basis of the tank musuem exists, but in acknowledging that fact, you have to acknowledge that the musuem improperly exists, and if the applicant was before you for the first time to that tank musuem there, the answer to the questions on that EAF would have to be different then they are now. The applicant has influencely stated that there would be no change to the area, no increase of traffic, or parking, no disturbance to the character of the area. Those statements have to viewed in the context that exists. Of course, there will be no change in the traffic. Whatever change in the traffic occurred when it was put there. Of course, there will be no change in aesthetics, because whatever change is going to be occurred when it went there in the first place. On page 6 of the EAF, he states there will be no physical change to the site. There will be no physical change to the site. The tanks are already there. The gun tower is already improperly there, not coming to terms with the zoning requirements for setback requirements. Again, there with be no change to the aesthetics, but you have to look at it in the context of the way those are answered. Mr. Gasser was notified in 1988, that he had to take some action, and it is now 1992 ,... P,g 7 - Change of Zone Am~-- Arm. Foundation before some action has been taken by the applicant to legitimize, or attempt to legitimize the site. The Town Consultant, Kramer, Voorhis and Associates reviewed the EAF submitted by the applicant, and they noted some corrections, that needed to be made. On page 3, the applicant states that there is minimum vehicular traffic generated, but Kramer states that there are at least one to five per hour. The appplicants states on page 2, that this could be described as a zone change, but Kramer more accurately states, that the entire story by noting that the site has been in violation of the Code since the early 1980's. On page 4 the applicant states, that area would be disturbed, and Kramer correctly notes, that this is the case because the site has already been improperly developed. On page 5, the applicant states, that only site plan approval would be required, and Kramer correctly adds, that if a zone change is granted to this site, the site will not only need site plan approval, but it will need various variances from the Zoning Board of Appeals, because even if they get a zone change, they will still conform to the "HB" requirement. Page 5, the applicant states that it is consistent with recommended use as in the local land use plan, and Kramer correctly notes that this is not the case, rather it is at complete odds with the officially adopted plan. We have added a section in here, that reviews the case law on spot zoning, because we are in agreement with the Planning Department's letter, that addressed, this problem, where they believe that this constitutes, or would constitute spot zoning. The Planning Board reiterates the facts,as I have given them,just now in their report, and they say it would be considered spot zoning unless it's supported by an in-depth study of the zoning pattern in this business district. A New York case law supports this statement. Town law 263, requires that regula- tions must be adopted in conformity with the comprehensive plan. The Town of Southold recently undertook a review of land use in Southold Town, and this area was designated, as it designated, "LI" and "RO". Obviously, this is in conflict with the Master Plan as it exists. The antithesis to a comprehensive plan is known as spot zoning, which has been defined as the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area for the benefit of the owner of such property, and to the detriment of other owners. We believe that is the case. This zone change could only be granted to legitimize what has been in improper use for ten years, and it would it would be to the detriment of other owners, who own adjacent, and nearby property. The applicant purchased this property with knowledge of existing zoning law. He proceeded to establish a use, that was not permitted by the Town Code, and he continued to violate the Code by erecting a gun tower that violates both the setback, and the height requirements. In order to legitimize the site, the applicant does not seek to bring it into compliance with the law, but rather seeks to change the law. According to the Town Consultants, Kramer, Voorhis and Associates, in their report of September 15, 1992, the proposed action will conflict with officially adopted plans, or goals, for the Town of Southold, and even more importantly, the proposed action will set an important precedent for future progress. The report clearly notes, that the "RO, zone adjacent to that portion of the parcel fronting on County Road 48 contains residential dwellings in conforming with zoning, and quote, the location of business uses in that area would cause potential land use conflict. The report goes on to say, that a precedent will be set, which would undermine, and I quote, the integrity of the zoning patterns in this section of the town, and I'm quoting again, and the expansion would not conform to the intention of the Master Plan. In conlusion, Kramer, Voorhis report notes, that even if the zone change is granted, the musuem would still not conform completely with it's new zoning designation. In addition to the variances, that are required for the setback, and height violations for the gun tower, the "HB" district provides, that all permitted uses' must be confined to a fully enclosed building on site. That's the most visual aspect of Mr. Gasser's Pg 8 - Change of Zone Am~'~ Arm. Foundation musuem. The tanks, and other machinery, which are displayed in the open would be in total violation fo the Code despite the granting of the zone change. Even if Mr. Gasser could, or would, enclose the tanks, and other machinery now on display by erecting a building, we wonder if he could do so, and meet the side setback requirement for such a building, that would be able to get tanks into it. We believe that it is highly unlikely that the applicant would, or could, enclose it in view of the very nature of the equipment, and in fact, when this applicant was before the Planning Board, and they wanted to help him put screening around the fencing, so that it could not be seen, the applicant attempted to avoid com- pliance with the Planning Board's decision by stating that Federal law preempted local law, and the Planning Board could not order them to install screening. However, that position was quickly ripped down, as there is absolutely no federal preemption of local zoning restrictions, as they apply to this particular piece of property. This Board, if it grants the zone change, will be taking only the first step necessary to legitimize this site for even with the zone change, at least three variances, and perhaps more would be required from the ZBA in addition to site plan approval for the Planning Board. We believe that there can be no definition of spot zoning, than changing the zoning of one parcel to benefit one owner, who's use was instituted in violation of the Code, and who would require multiple futher actions by multiple other Boards to attempt to bring the parcel into conformity with it's new zoning designation. I'd just like to that I informally spoke to Dr. Zwieg earlier tonight with regard to any position, that the Planning Conference, or the Task Force had with regard to this zone change, and they said that they were even unaware of this application, but as a general rule, they were opposed to zone changes at this time, until there was a more exhausted study of what we were doing in Southold Town, and that piecemeal zone changing was not, in their belief, a recommended in depth.. That's all I have to say. JUSTICE EDWARDS: I have a question. The already property abuts on the South, and abuts on the East, and it's zoned Hamlet Business, is their a residence within there? Do they live right in that parcel? CARMELLA BORELLI: Yes. JUSTICE EDWARDS: How about the Hawkins, do they? CARMELLA BORELLI: M~t. Hawkins lives there, too. JUSTICE EDWARDS: Are the Hawkins here this evening? CARMELLA BORELLI: No. she's eighty-n.ine years old. She was unable to attend. Her family~ in Florida. COUNCILMAN WICKHAM: Is the foundation a 501C3 charitible tax deducta~le? DAN ROSS: They are certified by the Federal Government. We'll provide the letter. DEPUTY SUPERVISOR PENNY: Is there anyone else, who would like to speak? . Pg '9 - PH Change of Zone, Amer. Am. Foundation HANNAH MASTERSON: I'm Hannah Masterson. I live in Mattituck, and I'd iust like to say that the Tank Musuem does not really sit well with everyone. We have the question of, just a few things from reading the paper, it~ seems that the Tank Musuem being there prior to approval, does start a precedent. As I read the paper, and I see the small businesses starting up in the Town of Southold it seems always that there was a question that that business provide parkingr and in many instances, that was very difficult for the business to do. Now, we see that the parking with this particular business, or musuem, is also, shared with the railroad station, and, also, with the bank. That's seems to be somewhat of an exception. Another thing that I'm questioning on this, and this is just the last thing, as we attend the different parades in Mattituck, and we see the tanks moving up and down, my question is, as a taxpayer is, is there a weight restriction, or do these, what you'd call nice things going along our street? I just have a question on things like this, because I know that there's other properties, that have been under consideration, who have had to meet very strigent requirements prior to being established. I just question, that this could have been in existence for ten years. I was obviously in existence, and nobody questioned, well, how did it get there? Was it properly zoned, and were the variance necessary required? I read the paper, and I see that this person wants to put his garage a little closer, you know, to his property line, and he or she comes in, and asks you about it, so I question the whole procedure. I question it, also, as a taxpayer in view of the fact, that I think there are several people suing the Town of Southold, because they feel that they have received unequal treatment. So, I'll just bring that to your attention, as it's come to my attention, as I read the paper, and as I do these things. Thank you. DEPUTY SUPERVISOR PENNY: Thank you very much. Is there someone else, who would like to speak at this time? ROBERT CLARK: My name is Robert Clark, and I have a house in Mattituck, and I, also, live in Manhattan, and I have a dual residence. The very first time I saw the gun tower, there was a gun in it, and I was on my way to church, and I was on my way to the store to get some milk. I am a believer in musuems. I am a believer in the education, that comes from musuems. I have been to many musuems, and I have been to musuems all around the world. They are inside buildings, where those who want to see what they have to offer, pay their admission, or if they're are free, they go for free, and they see themt but I'm sixty years old. I had three brothers, and seven cousins killed by weapons of war, and why they have a right to exist, those that don't want to see them, don't have to be forced to look at them through mesh fences on the way to church, and on the way to do their shopping. So, some how or other, I don't say the museum doesn't have a right to exist, but it let be where it doesn't offend those who don't want to look at those kinds of things, and let it be set up, so that those who want to do can pay their admission, and go inside a building, and see them, but out in the middle of a lovely town on Love Lane it's offensive. I don't go to Love Lane anymore. DEPUTY SUPERVISOR PENNY: Thank you very much. Do we have any other comments from the public at this time? JOHN DOOLEY: My name is John Dooley. I live in East Marion, and I'm a volun- teer at the Tank Musuem, and just a few things. I started volunteering just a few mont½s ago, and my initial reaction was, that as the man just before me, you know, it had a lot of w~apons of war, and things like that, but we normally look at war as the boys going off to war, and that kind of thing. It's a distant thing. But what's in the tank musuem is not violence, but it's when you go up Pg 10 - PH Change of Zone Amer. Am. Foundation to these tanks you can feel what maybe these people in these wars, World War I, World War II, Vietnam, what they felt. It's real. You, know, you can see the things. You know, a lot of them are in working order. They're there, it's a reality. It's not like a musuem where you're just looking inside at these little display, and you know, kind of using your imagination. It's there, and you can see it, and its' a very valuable resource, as was mentioned in one of those letters. It's a one of a kind. It's one of the few places like this, where you have actual working vehicles from these periods. We have well-maintained vehicles, and you know, you don't even have to be interested in that kind of thing. You know, it's not preaching any bombs, or anything like that, and also, in regards to zoning, you're looking at North Fork, Southold Town here, it seems that we're in a semi-rural area. You know, zoning is enforced strictly by the board here, but I have to admit, I think everyone here has to as well, there's a lot of unzoned, unplanned areas here, that really have been by the wayside, and I think to have a musuem like this, what you have to ask yourselves is, can we have a musuem like this, which has existed for many years, and many people have put a lot of time and effort into it to preserve these things, and we have that jeopardized by just some legal technicality in an area in which we live, and I understand that some people may not want to step out of their house, and maybe look at a tank everyday, but they have to understand what it stands for, and they have to understand why it's there, because last Sunday the Veterans of Foreign Wars, and Veterans in general, came to the Tank Musuem to celebrate Veteran's Day, and it's one of the few places, where they can get together, and, you know, the things that they used are there, and it's something that's very important to them. That's all I have to say. DEPUTY SUPERVISOR PENNY: Thank you very much. Is there someone else from the audience, that would like to speak on this zone change application at this time? BOB SABIER: My name is Bob Sabier. I'm a volunteer at the musuemo I think you would say it's an ironic fact, that this hearing is occurring on the eve of Veteran's Day. The gentleman, who spoke earlier was offended by sights, weapons of war, and such. I don't think there's any citizens in this nation, who is not offended in the same way that he is. The musuem was established not to glorify, but rather revere the actions of the citizens of this country, that made it what it is today. The vehicles, I have two sons, their grandfather was in an armed unit. Their great-grandfather fought in World War I, and won a Purple Heart. They don't have the understanding. The schools don't teach them what it means to involved in a worldwide global conflict. They come to the musuem with their friends, they're Scouts, Cub Scouts, and such, and they can actually see, and understand what it is about war, that is so hard. They can actually see the vehicle. They can see them in operation, in hopes that as future genera- tions, they will understand what not to do, that was done prior. The saying is, those who do not learn from history condemned forever to repeat it, and the purpose of that musuem is to teach them, and I believe they glean a great deal of that knowledge from just being there, and hearing what Mr. Gasser has to say, seeing the displays as they're displayed in the musuem. The artifaces there, they go back to Revolutionary War right on up to present day, Desert Storm. I don't think there's a better learning environment for that type of education, a musuem of this type. I think it would be a shame to have it closed down, or disrupted in any way. ," ~ P'g 11 - PH Change of Zon~ Am. Arm. Foundation DEPUTY SUPERVISOR PENNY: Is there someone else at this time? BRIAN FLAY: Mr. Deputy Supervisor, Members of the Board, good evening. My name is Brian Flay. I'm a resident of Laurel, and also, a volunteer at the American Armoured Foundation Musuem. In the Soldier's creed of the United State Army, he or she would be reciting, I'm an American Soldier, the protector of the greatest nation on earth, and I'm keeping alive the principals of freedom for which my country stands. The American Armoured Foundation honors and stands for the millions of men, and women, who have recited words like these, and for the millions, that have died for it. I personally feel, that the American Armoured Foundation is a service to the community, and I strongly urge the Board to approve the changing of the zone. Thank you. DEPUTY SUPERVISOR PENNY: Thank you. Is there someone else from the audience at this time? STEPHEN FOX: My name is Stephen Fox. I'm a volunteer for the musuem. I've been an educator in the State of New York for twenty-three years, and currently a secondary level high school teacher, middle school teacher. I've been a Police Officer in this state for five years. I've had many unusual experiences, both in education, as well as in police work. I think the most unique experience that I've had though in my entire lifetime, is has been working with this musuem. This is not a musuem in the traditional sense. This is living musuem. This is a musuem where people from all ages, and all walks of life, can come, can glean what they wish from the materials that we have, and can learn, and if you know what's going on in the schools today, which I'm sure many of you do, there's a great deal that has to be I~r~e~l and we could do ourselves, and our childre~ a great service by offering this resource as a learning experience, and I might add there are many adults, that could learn a great deal as well. The stereotypes have been established regarding military history are in many way preposterous. There is a great deal of educationing, that has to be done, and I think this is probably one of the most unique ways of doing so, and a way which is convenient, and at the same time rational for all of those who wish to partake of it. Thank you. DEPUTY SUPERVISOR PENNY: Thank you. Is there anyone else at this time? DAN ROSS: Just a moment to respond. First, I would need an opportunity, also, to respond to the opposition, that's been put in. I didn't have a chance to see before tonight. Two items, that were mentioned, one, some jumped from the assumption, that a real estate broker was involved in 1981, that Mr. Gasser understood that the property was not properly zoned with use anticipated. I think that's a poor lead, and I believe the Town's correspondance reviewed earlier, the 1988 correspondence from the Building Deparment, and the Planning Board's 1989 correspondence indicates that even the Town was confused with the respect whether the use of the zoning were appropriate. With respect to Mrs. Masterson, and Mrs. Borelli's concerns the approval process in the town often is slow. The Planning Board made a determination in 1989, a site approval was necessary. It's 1992. That's three years. I suggest that that's not all that long for a difficult application such as this is. The applications have been made. We have responded with requests for information, and will continue to respond. Regarding the spot zoning arguements, it's surprising to say the least. You have Hamlet Business property zoned to the west. The opposition, in fact, you have Light Industrial to the east, which allows more obnoxious, greater obnoxious uses. You have Hamlet Business to the south. How you can call zoning Pg 12 - PH Change of Zone Am. Arm. Foundation this, in effect upzoning it, from Light Industrial to Hamlet Business as spot zoning is beyond me. It really is. With respect to..particular concerns, I suggest this Board should leave it to the Boards, to the Planning Board, which looks at these matters very carefully, and to the ZBA. We have indicated, we can provide parking on the site. In respect to the variances, the numerous variances, take a look at the size of the lot. It's a fifty foot lot, sixty foot up here. Of course, you're going to need variances. Most any use would require variances, a lot of that shape. There have been no attenpt to avoid compliance, and I appreciate the Board's time,considering this matter. Thank you. DEPUTY SUPERVISOR PENNY: Are there any other comments from the public at this time? CARMELLA BORELLI: Since Mr. Ross, I assume, will be responding to this memorandum, I would like the opportunity in the normal course to reply to his response once he puts it in. That's my only request. DEPUTY SUPERVISOR PENNY: That would be expected. DAN ROSS: I don't see why, sir. She's had a say today. I'd like to respond to that. How long will it go? I would have had my opposition today had I had it. DEPUTY SUPERVISOR PENNY: I think it's up to the Town Board to decide how long it's going to go. We've heard from the public. I would like a couple of clarifications here, because as is outlined in this brief, which was not mentioned publically, although I have already made a disclosure of my relationship to this project before it came before this Board, I did not do so this night, and the opposition was kind enough to remind everybody, that Town Board member George Penny IV, who signed the deed conveying the property to the applicant excuse himself from any part in any deliberations, discussions, or decision in regard to the petition. I've already made this known to the Town Board at the time this application was filed. I've also made it clear, that I don't understand how anybody could interpret something ten years later as my having anything in regard to it. I have no relationship with Mr. Gasser outside of having sold him property through our corporation ten years ago. I stand to gain no monetary consideration, or any other consideration for acting upon this zone change, but I want to thank the opposition for bringing this up. Are there any Town Board members before I give some more comments? Are there any Town Board members, that would like to speak at this time? (No response.) We had some interesting comments, that have been made here. Having been on the Town Board for a period of time, I also went through a Master Plan in the mid-80's, and I recall, and maybe if Mr. Ammirati is here, and maybe if he could clarify my recollection of this, that during the Master Plan Mr. Ammirati property, I believe, ~ was slated to be designated as Residential Office. Did not Mr. Ammirati come to this Town Board, and request that because of the Tank Farm, and the Light Industial Zone next to him, that the Town Board reclassify in the Master Plan his property to Hamlet Business? TOWN CLERK TERRY: Did you come before us for relief petition? FRANK AMMIRATI: When we bought the property, I sat here, and asked that,, there was a moratorium going on,and we asked that that be Hfted on us, so we could open a business. I'11, also, bring out at this point, too, that 1986, when my hearing came up, Mr. ~Gasser said, that I was not in keeping with character of the block. I would like to ask him if, this was keeping in character of the block? ....- ~g 13 - PH Change of Zone Am. Arm Foundation DEPUTY SUPERVISOR PENNY: Thank you for responding to my question. I realize that there was some action by you. I would just like to suggest, I mean I've heard this US/UK thing mentioned over, and over, again, and where it says, in the principals from Woodly Associates, Joe Russell, who is a participant in the US/UK study, and part of the original study team, he just came here, made a presentation a few days ago to the town, that, neighbors should have a significant opportunity to effect the uses around them by participating in an informal mediation process, as well as formal, or informal, hearings. Well, I would suggest that the Town Board keep this open for the process, that any other comments want to be brought before the Board by either side, but I would also like to suggest, that the two neighbors here sit down, and figure out a way, that they can manage to work this out amongst themselves. They're both in a business zone. Mr. Gasser is asking for an upzoning, not a downzoning. There is a business next to him, which was originally a residential house, which was changed to Hamlet Business in the Master Plan. It seems to me, that if some middle ground could be struck it might be to the benefit of the applicants, and might be also beneficial to the Town Board in settling this thing, so that you can continue to deal with this as neighbors in the future. I don't think that anyone wishes to see their neighbor go away, but maybe, if the attorneys step aside, and the parties could direct it man to man, or maybe if they could have their attorneys do it. I mean, I'm not going to tell them how to do it, but I think that compromise is very necessary for neighbors to get along with each other. That Tank Farm, and to my recollection in the 1940's when my company bought it, it was used to house during the war New York Telephone vehicles, because there were no other buildings out here, and they kept them out here for emergency purposes, and they used it as a depot. So, this has a long history of industrial uses. It was used by our corporation from the 40's up until 1981 for a storage building. There were trucks that were moved in, and out, of there. There were fork lifts. As a matter of fact, I personally became involved in putting a floor in the building, which was originally a dirt floor, in putting trestles on the inside, so we could open up for storage. So, quite honestly, if that had continued in it's present use, it still would be an industrial storage building, and probably creating more dust and havoc, then is going on there right now. We can go on, and on, with this in this whole area. The Town Board was cognizant when Mr. Gasser came before us. The Town Board, of which I sat as a member, and when he came in, probably before I was on as a Board member, knew that Mr. Gasser..what Mr. Gasser was doing there. There was no feeling amongst the Town Board members at that time, that there was a problem, otherwise, I believe, that we would have addressed with Mr. Gasser. Mr. Gasser came, and asked for concessions from the Town. He asked for the Town to support him in ways, to give him tax abatements, etc., etc., which the Town declined to do. The Town was fully cognizant of what was going on there. I think if somebody slipped during this process, and somebody knowingly coming before the Town Board, the Town Board acknowledging their existence, possible it was an oversight in the Master Plan, that we did not address the use, that this property was actually being used for, but regardless of the fact we're still here. We still have neighbors, which seem polarized over an issue. I would hope if we recess this for comments for two more weeks, that maybe the neighbors can get together, and work out this, because (tape change) Do both parties understand what I'm asking? We'll give them two weeks. They can work that out amongst themselves. We can't go on forever on this. TOWN ATTORNEY ARNOFF: I just wanted to.. if Mr. Ross could have them in within, say, ten days. Pg 14 - PH Change of Zone Am. Arm. Foundation DEPUTY SUPERVISOR PENNY: Mr. Ross, how quickly could you have some papers? DAN ROSS: Ten days would be fine. DEPUTY SUPERVISOR PENNY: And how long would you take to respond to them? CARMELLA BORELLI: Five days. DEPUTY SUPERVISOR PENNY: How about you doing seven, and they respond in seven, and we can have this whole matter cleared up by the 24th. CARMELLA BORELLI: My client has asked, if we make a request of the Board, that come and make a visual inspection of the properties in the area, including the Tank Musuem. DEPUTY SUPERVISOR PENNY: I'm sure that each individual member may be very interested in seeing what's going on. Does any Town Board members have any comments at this time? (No response.) I'll refer at this time, that the public hearing is closed, and the file will remain open for comments from both parties to be submitted to the Town Board, until November 24, 1992. Southold Town Clerk PLANNING BOARD MEMBERS Bennett Orlowski, Jr., Chairman George Ritchie Latharn, Jr. Richard G. Ward Mark S. McDonald Kenneth L. Edwards Telephone (516) 765-1938 RECEIV~r) AU6 1 8 1992 ,~.~. PLANNING BOARD OFFICE TOWN OF $OUTHOLD SCOTF L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold. New York 11971 Fax (516) 765-1823 Attgust 18, 1992 Judith T. Terry, Town Clerk Town Hall Southold, New York 11971 Re: Petition of William F. Gasser and The American Armoured Foundation, Inc. for a change of zone from Light Industrial & Residential Office to Hamlet Business SCTM # 1000-140-2-16 Dear Mrs. Terry; At its public meeting on August 17, 1992, the Planning Board adopted the following report: The Planning Board has reviewed the petition of William F. Gasser and The American Armoured Foundation, Inc. for a change of zone and offers the following observations and suggestions: DESCRIPTION ~le subject parcel is a split-zoned parcel of 32, 109 square feet in area. Approximately 60 by 150 feet or 9,000 square feet of the property is zoned Residential Office. The remainder, 23, 109 square feet in zoned Light Industrial. The 54 by 120 foot corrugated metal building on the property lies within the LI zone, as does the 8 by 8 foot tower. HISTORY (as can be reconstructed from our records) It appears from the records at our disposal, that since its inception, (in either 1980 or 1981), this museum has been operating in violation of the Code. In 1988, the property owner was notified by the Ordinance Inspector that he was in violation of the Zoning Code. At that time, the part of the property that is now zoned for Residential Office was zoned "A" Residential/Agricultural. The part of the property that is now zoned Light Industrial was zoned "C" Industrial. A copy of the prior zoning map is attached for your convenience. TSe violations on the site under the old Code were as follows: The property owner had not obtained approval for a museum. (Unless there was a specific ruling or official interpretation of the Zoning Board of Appeals that stated otherwise, a museum was not an allowed use in either of those two zoning districts.) Also, the tower had been installed without a building permit. And, its height (20 to 25 feet) exceeded the eighteen feet permitted for accessory structures. In 1989, the Town adopted a new Zoning Code and Map. Under that Code, the museum is not a permitted use within the LI zone. But, it is permitted within the RO zone by Special Exception from the Zoning Board of Appeals. However, the museum building, the tower and about 72% of the property are located within the LI zone, not the RO zone. The tower height not only violates the Code's restrictions on accessory structures, but it lies within the required front yard setback. In 1991, an application was made for site plan approval. However, the Planning Board was required to notify Mr. Gasser that it could not proceed with the application because he had not obtained the necessary variances from the Zoning Board of Appeals. (The Code specifically prohibits the Planning Board from granting approval to site plans before the Zoning Board grants the necessary variances or Special Exceptions.) In August of 1991, an memorandum was circulated among Town departments that while the use of the property as a museum was not allowed by the Code, the use had been allowed to continue for many years. On December 20, 1991, a Disapproval Notice was issued which noted that the use is non-conforming. An application for variances was made by the applicant to the Zoning Board of Appeals in the spring of 1992. In March of 1992, the applicant's attorney informed us that the Zoning Board had returned the application to him for lack of information. In April of 1992, the applicant's attorney requested the assistance of the Town Attorney's office. In July, 1992, this petition was made for a change of zone from RO and LI to Hamlet Business. CONCLUSIONS The Planning Board has reviewed the old and new zoning maps for the Mattituck Business District. The request before the Town, if granted, could be considered a spot zoning unless supported by an in-depth study of the zoning pattern in this business district. This Board feels strongly that the zoning designations of all lots in the immediate business district bear closer scrutiny. Consequently, we are asking to be a coordinating agency during the environmental review. Our recommendations as to the determination of environmental significance of this petition will be sent to you after we have had an opportunity to review the report of the Town Board's environmental consultant on this petition. If you could send us a copy of that report, it would be appreciated. This Board will also undertake its own study of the ' zoning pattern in this area in conjunction with the environmental review. Sincerely, Bennett Orlowski, Jr. Chairman Encls. NEW MARIE ONGIONI CARMELA L. BORRELU ONGIONI & BORRELLI ATTORNEYS AT LAW 403 FRONT STREET · P,O.BOX 502 GREENPORT, NEW YORK 1 1944-0562 TEL, (516) 477-2048 · FAX (516) 477-8919 288 PANTIGO ROAD EAST HAMPTON, NY 11937 TEL (516) 324-8282 FAX (516) 324-8283 5 Jauua% 9. 19/ Mr. Gerard P. Goehringcr. Chairman Southold Town Zooiog Board of Appeals P. O. Box 1179 Southold. Ncx~ York 11971 Re: William Gasser - American Armoured Foundation Applications # 426(}. 4261 aud 4262 Dear Mr. Goehringer: In accordance with thc Board's mqucst at Ibc hearing held on the above applications on Wednesday, Januar3 4, 1995 enclosed hcmxdth please find copies of thc following court decisions: I. Matter of Lcvme v. Korlnan - 586 N.Y.S. 2d 620 (2d Dept. 1992) 2. Matter of Sasso v. Osgood. cl itl .... App. Div.--- (4th Dept. 7/15/94) 3. Matter of Sasso x, Osgood. et al .... App,Div.--- (4th Dept. 9/30/94) 4. Sorrcnti v. Siegel, 525 N.Y.S. 2d 667 (2d Dept. 1988) 5. Carlucci x. Board of Zoumg Appeals .... App. Div.--- (2d Dept. 6/20/94) 6. Vilardi v. Roth, et al - 597 NY.S. 2d 86 (2d Dept. 1993) 7. Doyle v. Amster - 79 NY 2d 592 {1992) 8. Cowan v. Kern- 41 N.Y 2d 591 In lite Lcviuc case the Soutbamptou Zoning Board's denial of the petitioner's application for a xariancc was sustained b3 the court xdlicb noted: (1) the petitioner failed to show "practical difficulties" in order to establish entitlement to thc variance: (2) thc variance was sought to accommodate a chosen aesthetic design: (3) Iht petitioner's xlere presumed to have knoxdedge of the zoning mstriclions at the tintc of purchase and titus the hardship was self-created. h/tile Sasso case the Appellate Dixision rex crscd a loxlcr conrt (Supreme Court) decision which had sustaiucd a ZBA delerminadon Ihat grained an aTCa variance because: (1) the ZBA's findings were not supporlcd by Ibc cvidcuce pmx idcd by thc applicant: (2) the ZBA's decision was based in part on the erroneous belief thai Town Law 267-B prm ides il more lenient standard for granting an area variance Ihan "practical difficulty". In thc SorEcnfi case a ZBA decision dcn3ing an area x ariancc ~as suslained b5 tl~c court bccanse Ihc petitioner had failed to demonstrate any praclical difficullics that would result from the denial of his applicaboo In tile Carlucci case Iht ZBA decision dcn3ing an area x ariancc was suslained because: (1) tbe decision of the ZBA was snpporied b3 snbstanlial ex idcncc: (2) Ibc petitioner's difficulty in complying x~ dh Iht zoning Ecgulalion was sclf-crcalcd xddch is a significanl clcmcnt mitigating against thc application: (3) after finding Ihat thc haEdship xxas sctf-crcalcd [lie ZBA had no obligatioR Io weigh thc expense of compliance m petitioner's finer. In the Vilardi case lite denial of an area variance was sustained becaosc: (I) thc determination was snpported by substamial evide cc: (2) Ihc cconomic hardsbip was self-created as parl of a conscious decision: (3) Iht criteria of Towu Law 267-b and Ihc exisliug case law regarding "practical difficulty" had not been met by thc petitioner. In the Doyle case the Court of Appeals affirmed the Appellate Divisions affirmance of the Zoning Board Anlhority's decision to deny an area variance because: (1) The Boards deuial that the petitioner did nol meet the practical difficull.x test was based ou substantial evidence: (2) economic injury is not established because properly will yield a better return with the variance: (3) an), economic injuo' was self-imposed bccausc the zoning rcstricliou was in effect Mmn the petitioner pumhascd the land. '- In the Cowan case, thc Court of Appeals. reinstated the Supreme Court's decision which affirmed tbe Zoumg Board Authority's dcoial of au area variance because: (1) The)' fouud the claim of discriminaliou to be mffounded: (2) The record sustained that petitioner had failed to establish either ecooomic hardship or practical difficuhy: (3) if lbem was an economic hardship il had been willing assumed bccausc of pctitiouers know, ledge at thc lime of purchase and was Ihus self-iuflictcd The record before this Board upon which a decision regarding these applications nmst be rendered as submilled b3 Ihe pctitioncr consisls of tbe applieation and the self-serving stalcments contained therein. Thc evidence pul forlh by the pclilioner at thc heariug coosists of teslimonv of supporters oftbe museum. Thc record is absolutcl.~ dex old ofexideocc to support the grantin~ of the ama variances. On thc conlrary, th~ evidence pul forlh by opponents clearing shows thc 14 year disregard of the zoning ordinances by tiffs pctitioucr logclher x~ ith the self-created ualure of his currenl predicament. Plcasc be adviscd that my clicuts do uot ',~ ish to submit a "wish list" to this Board with regard to this application. Our positiou remains as it has been-that this applicant's requests for variances should be denied. On behalf of m3 clients~ howcx er~ I x~ ill be contacting the applicant's attorney directly to discuss this matter. Ven.' Irt 15, yours. clb/ns ONGION! & BORRELLI Carmela L. Borrelli cncs cc: Gregor3 Blass Esq. (xx/o encs.) Frank & Diane Ammirati (w/o encs.) ammirali:zba£olup llr £NDE× # DATE PURCHASED cc: Town Board Town Att~orp. ey Chief of t~oiice Supt Highways Appeals Board St~;pe Ins Wm F Mullen,Jr SUPREME COURT, STATE OF NEW YORK FRANK AMMIRATI and DIANE AMMIRATI Petitioners (S): GERARD p. GOEHRINGER, SERVE DOYEN, JR., JAMEs DINIZIO, JR., ROBERT A. VILLA AND RICHARD C. WILTON, Respondent (S): RECEIVED JUDGE ASSIGNED 8 d R J I DATE ~ P£oduct$ Liability -MV -PL -OT SUPREME COURT OF THE STATE OF NEW YORK:COUNTY OF SUFFOLK FRANK AMMIRATI AND DIANE A MMIRATI, PLAINTIFF, VS. GERARD P. GOEHRINGER, SERGE DOYEN, JR., JAMES DINIZIO, JR., ROBERT A. VILLA AND RICHARD C. WILTON, Constituting The Zoning Board o1' Appeals of thc Town of Southold, DEFENDANT Sirs: ) Index # ~.5-- ~9~'~ y~ _ . MAR ..7 1995, · . NOTICE OF PETITION~~ ) ) FILED MAR 7 1995 EDWARD P. ROMAINE CLEf~K OF SUFFOLK OOtJ.t, CT'~ PLEASE TAKE NOTICE, that upon the annexed petition of Frank Ammirati and Diane Ammirati, verified on the 6th day of March, 1995 and upon the affirmation of Carmela L. Borrelli, dated March 6, 1995 and the exhibits thereto attached the undersigned will apply at a Special Term of the Supreme Court, held in and for the county of Suffolk at the courthouse thereof, in the Town of Riverhead, on the 29th day of March, 1995 at 10 o'clock in the forenoon of that day, or as soon therafter as counsel can be heard, for a judgment pursuant to CPLR Article 78, reversing and annulling the determination of the Zoning Board of Appeals of the Town of Southold, dated i'-ebruary l, 1995 and filed on February 8, 1995, in the matter of the application of William F. kiasser and the American Armoured Foundation, Inc. d/b/a American Armoured Tank Museum ~;:r three variances from the Southold Town zoning code to permit fences higher than permitted, t~) station an accessory structure closer to the lot line than permitted and to permit the outside storage of museum artifacts which is similarly not permitted in the Hamlet Business District of the Town of Southold and granting such other and further relief as to the court may seem just and p~ oper, together with the costs of this proceeding. I )ated: Greenport, NY March 6, 1995 ~armela L. Borrelli ONGIONI & BORRELLI Attorney for Petitioners 403 Front St-PO Box 562 Greenport, NY 11944 516-477-2048 am~nirati:noticep.doc -2- SUPREME COURT OF THE STATE OF NEW YORK: COUNTY OF SUFFOLK FRANK AMMIRATI and DIANE AMMIRATI, Plaintiff, GERARD P. GOEHRINGER, SERGE DOYEN, JR., JAMES DINIZIO, JR., ROBERT A. VILLA and RICHARD C. ~.','l LTON, Constituting The Zoning Board of Appeals of the Town of Southold Defendant Index # PETITION TO THE SUPREME COURT OF THE STATE OF NEW YORK: The Petition of FRANK AMMIRATI and DIANE AMMIRATI, for their petition in lhis proceeding under and pursuant to Article 78 of the Civil Practice Law and Rules, to review the determination of the respondents herein, constituting the Board of Appeals of the Town of Southold, respectfully alleges as follows: 1. Petitioners are and at all times hereinafter mentioned are the owners and occupants of certain real property hereinafter described in the Town of Southold, County of Suffolk, State of N~w York, to wit: A certain parcel located at 730 Love Lane, Mattituck, New York, bearing ~uitblk County Tax Map #1000-I40-2-18 (See Exhibit 1). 2. Respondents, Gerard P. Goehringer, Serge Doyen, Jr., James Dinizio, Jr., Robert A. Villa and Richard C. Wilton, at all times hereinafter mentioned, were and now are the members of and constitute the Zoning Board of Appeals of the Town of Southold, thereto appointed by the 'l'own Board of the Town of Southold. As used in this petition unless otherwise expressly stated, -I- the term "Board" means and is intended to nrean the said Zoning Board of Appeals of the Town of Southold, composed, at the respective times above mentioned, as aforesaid. 3. That heretobefore, a Notice of Hearing was published by the Town of Southold based on three applications filed by William F. Gasser and The American Armoured Foundation, Inc. bearing appeal numbers 4260, 4261 and 4262 for the following relief'. #4260-a variance fi'om Article IX, Sec. 100-91 C(I) to allow an accessory structure (a gun tower) to be placed less than five feet from the property line (Exhibit 2) #4261-a variance from Article XXIII, Sec. 100-23 lA to permit a fence in excess of the 6 I/2 feet required for non-residential property. (Exhibit 3) #4262-a variance from Article IX, Sec. 100-93 to allow outside displays and storage of museum exhibits including tanks and other similar vehicles which is not permitted in the Hamlet Business District. (Exhibit 4) 4. Petitioners are aggrieved by a certain decision of the Board made on or about February I, ~995 and filed in the Office of the Clerk of the Town of Southold on or about February 8, 1995 and which decision by the Board purports to give to one William F. Gasser and The American Amoured Foundation, Inc. d/b/a American Armoured Tank Museum the following relief: a Granting a variance for a 19" reduction in the setback for an accessory tower structnre in violation of Section 100-91 C( I ) of the Zoning Code; b. Granting a variance to permit a fence in excess of the height requirements of Section 100-231A of the zoning code; c Interpreting the activity for parking of[movable vehicles under Section 100-236 and Section 100-13 to include tanks and similar devices which may be used for transportation as a perufitted use under Section 100-93 of the Zoning Code in a 14'x185' strip of the parcel adjacent to the railroad tracks and thus permitting the outside storage of museum artifacts in violation of Section 100-93 of the zoning code which reqoest for relief in ffie form of a variance from this section was denied by the Board. 5. That the real property owned by petitioners has been, is being and will be permanently i~t. ed and damaged by the said permit to use 14' zoned in the HB District for the outside storage of tanks and similar devices as aforesaid and to place an accessory structure, namely a gun tower, -2- closer than the required set back footage to the side and rear lot lines as aforesaid and to have a fence with barbed wire in excess of the 6' requirement, which has been made available to the said William F. Gasser and The American Armoured Foundation, Inc. dfo/a American Armoured Tank Museum on the said plot of land by virtue of the aforesaid decision. 6. Upon information and belief, the said property, for which the applications for variances were made, is 640 Love Lane, Mattituck, New York, bearing Suffolk County Tax Map Number 1000-140-2-16. 7. That the Town of Southold adopted Building Zone Ordinances Article IX, Section 100-91C(I), Article XXIII Section 100-231A and Article IX, Section 100-93 which as amended, provide; I. Article IX Section 100-91C(1} "C. Accessory uses. The following accessory uses are permitted as accessory uses and, except for residential accessory uses and signs..., are subject to site plan review: "(1) Accessory uses as set forth in and regulated by Section 100-31C(1) through (7)..and set forth in Section 100-3.3 thereo£ .... " "I00-33. Accessory buildings. Amended 4-10-1990 "In the Agricultural-Conservation District and Residential R-80, R-120, R200 and R-400 Districts, accessory buildings and structures or other accessory uses shall be located in the required rear yard, subject to the following requirements: "A. Such buildings shall not exceed eighteen (18) feet in height. "B Setbacks. "(1) On lots containing up to twenty thousand (20,000) square feet, such buildings shall be set back no less lhan three (3) feet from any lot line. "(2) On lots containing more than twenty thousand (20,000) square feet up to thirty-nine-thousand nine-hundred ninety-nine (39,999) square feet, such buildings shall be set back no less than five (5) feet from any lot line. -3- 11. Article XXXIII~ Section 231 "Fences, walls or berms may be erected and maintained, subject to the following height limitations: "A. When located in the front yard of residential zones, the same shall not exceed four (4) feet in height. When located in the front yard of nonresidential zones, the same shall not exceed six (6) feet in height. "B. When located in or along side and rear yards, the same shall not exceed six and one- half (6-1/2) feet in height." I!I. Article IX~ Section 100-93 "....Uses confined to enclosed buildings. All uses permitted in the HB District, including the display and sale of merchandise and the storage of all property, except living plants, shrubs and trees, shall be confined to fully enclosed buildings on the premises...". IV. Article XXIIi, Section 100-236 "No unenclosed storage, except parking of operable passenger vehicles capable of passing inspection or recreation vehicles or boats and commercial vehicles as set forth in Section 100-191, shall be permitted in a residential district." V. Article 1, Section 100-13 "B. 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 Langnage, unabridged (or latest edition)." -4- "JUNKYARD-Land occupied or to be occupied for storage of old wood, paper, cloth or metal, including old automobiles, trucks, equipment, machinery, fixtures and appliances not usable as originally designed, and also including any portion of such old automobiles, trucks, equipment or machinery as may be sold as and for junk or salvage...." "OPEN SPACE-Any parcel or area of land or water essentially unimproved and set aside, dedicated, designated or reserved for public or private use or enjoyment or for the use and enjoyment of owners and occupants of land adjoining or neighboring such open space, provided that such areas may be improved with only those buildings, structures, streets and off-street parking and other improvements that are designed to be incidental to the natural openness of the land." "OUTDOOR STORAGE-The keeping, in an unroofed area, of any goods, junk, material, merchandise or vehicles in the same place for more than twenty-four (24) hours." "PARKING LOT-An off-street, ground level area, surfaced and improved for the temporary storage of' motor vehicles." 8. That on or about February I, 1995, after hearings held by the said Board on January 4, 1995 and February 1, 1995 at which hearing the said William F. Gasser, together with his attorne~ and others appeared in support of the application, and upon which hearing your petitioners, their attorney and others through signed petitions, appeared and objected, the Board made its decision purporting to grant and deny in part the said application of William F. Gasser and The American Amoured Foundation, Inc. d/b/a American Armoured Tank Museum and in so doing, made and signed the report and decision, a copy ofwhich is hereto~ annexed and marked Exhibit 5. 9. That the granting of the said permission to use 14 feet of the applicant's property which has been rezoned Hamlet Business for the outside display of tanks and .similar vehicles under an interpretation of the zoning code for motor vehicles was not warranted by the facts, was illegal, unjust, arbitrary, capricious, unauthorized and contrary to the provisions of Section 100-93 of the zoning code ordinance of the Town of Southold, same being in the State of New York, and violative of the laws of the State of New York, and not in harmony with the general purpose and interest thereof and does not secure the public health, safety, and general welfare, and was and is in violation and an abuse of'any discretion vested in the Board, and the Board did not have any -5- right, power or authority to grant said permission and/or variance, and in addition said decision was not supported by substantial evidence. 10. That the granting of the said permission to place the gun tower closer to the rear lot line than is required in the set back requirements £or properly zoned HB was not warranted by the facts, was illegal, unjust, arbitrary, capricious, unauthorized and contrary to the provisions o£the zoning code ordinance Sec. 100-91 of the Town o.f Southold, same being in the state of New York, and violative of the laws of the State of New York, and not in harmony with the gene?al purpose and interest thereof and does not secure the public health, safety and general wel£are and was in violation and an abuse of any discretion vested in the Board, and the Board did not have any right, power or authority to grant said permission and/or variance, and in addition said decision was not supported by substantial evidence. I 1. That the granting of the said permission to permit a fence with barbed wire in excess of 6' plus barbed wire for property zoned HB was not warranted by the facts, was illegal, unjust, arbitrary, capricious, unauthorized and contrary to the provisions of the zoning code ordinance Sec. 100-231A of the Town of Southold, same being in the state of New York, and violative of the laws of the State of New York, and not in harmony with the general purpose and interest thereof and does not secure the public health, safety and general welfare and was in violation and an abuse of any discretion vested in the Board, and the Board did not have any right, power or authority to grant said permission and/or variance, and in addition said decision was not supported by substantial evidence. 12. That permitting the outside storage oftanks~nd other similar vehicles through a new and novel interpretation of Sections 100-236 and 100-13 of the zoning code which sections were specifically meant for automobiles or other similar vehicles for property zoned Hamlet Business was not warranted by the facts, was illegal, unjust, arbitrary, capricious, unauthorized and contrary to tile provisions of the zoning code ordinances Section 100-13 and Section 100-93 of tile Town of Southold, same being in the State of New York, and violative of the laws of the Slate of New York, and not in harmony with the general purpose and interest ~hereofand does not secure the public health, safety and general welfare and was in violation and an abuse of any discretion vested in '~lle Board, and the Board did not have any right, power or authority to grant said permission and/or variance, and in addition said decision was not suppOrted by substantial evidence. 13. Said decision and/or variances granted as aforesaid by the Board are wholly illegal, arbitrary, capricious and unjust and the following are the specifications and grounds thereof.' a. Regarding appeal #4260 for a variance from the setback requirements for an accessory structure (a gun tower), the applicant submitted no evidence except the application (See Exhibit ~--. 2) to support a finding that relief from the code was warranted. The record clearly shows that the applicant's problems were self-created and over a period of more than 10 years were in total disregard for the law. The demands of another board (the Planning Board) for parking (as part of the site plan review) is not a basis for granting avarmnce' from the zomng' code. If site plan review had been sought when it was required, the tower would never have been brought to the site because there would have been no place to legally place it. b. Regarding appeal #4261 for a variance from the height requirements for the fencing surrounding the property, the applicant submitted n__9_o evidence except the application (See Exhibit 3) to support a finding that relief from the code was warranted. The Board's decision contains as a statement of fact that a portion of the fence pre-existed the current fencing requirement but there is no evidence in the record to support that conclusion. In addition, applicant's protestations to the contrary, if applicant complied with the inside storage requirements of the code under Section 100-93 (which request for relief under application #4262 was denied by the Board) fencing itself would not be required and certainly the excessive fence height with its unsightly barbed wire would not be required. Applicant. stated the fencing was required to protect the artifacts which are illegally stored outside. c. Regarding appeal #4262 for a variance from the inside storage requirements for a museum, the applicant submitted no evidence except the applications (See Exhibit 3). The Board denied the request for such variance but a b trar ly interpreted other sections of the code (Sections 100-236 and 100-13) clearly meant for motor vehicles(automobiles and similar vehicles) to encompass tanks and other similar vehicles. The Board's wholly unrealistic and illogical interpretation circumvents its own denial of the variance request to permit outside storage and thus violates Section 100-93 by permitting such out'side storage in a 14' area. -7- 14. That no evidence was produced at the hearing to show that the premises to which this variance would apply could not be used in a conforming manner, and if so used, would not yield a fair return to the owner on his investment. 15. That evidence that was produced at the hearings showing that the violations ofthe zoning code and the unsightliness of the stored tanks and similar vehicles was entirely self- inflicted and that applicant had not met his burden under both statutory and case law to support the granting of any variance. 16. That no evidence was produced at the hearings to meet the standard necessary to receive the requested relief 17. That the Zoning Board of Appeals wrongfully undertook to act in an legislative capacity and did not limit itself to its administrative functions. 18. That the variances granted and the new and novel interpretation of the code by the Zoning Board of Appeals were not in harmony with the general purpose and intent of the zoning ordinances of the Town of Southold and were not in the interest of public health, safety, the general welfare and substantial justice. 19. That thirty (30) days have not elapsed since the filing of the decision of the Board on February 8, 1995 in the office of the Clerk of the Town of Southold, New York, and no previous application for the relief herein sought has heretofore been made to any court or judge thereof. WHEREFORE, your petitioners pray that the decision of the Board of Appeals of the Town of Southold, New York, be reviewed, and that said decision and determination of said Board of Appeals be annulled, and that the Board orAl, peals, aforesaid be directed to cancel any permit or grant made by them, to the said William F. Gasser and the American Amoured Foundation, Inc. dfo/a the American Amoured Tank Museum, and further, that said Board of -8- Appeals be directed to deny said application in its entirety and for such other, further and different reliefas to this Court may seem just and proper. Dated: March 6, 1995 Greenport, New York Yo, rs, etc. ONGIONI & BORRELLI Attorneys for Petitioners By: Carmela L. Borrelli Office & P. O. Address 403 Front Street P. O. Box 562 Greenport, New York 11944 516~477-2048 -9- STAI E OF NEW YORK) COUNTY OF SUFFOLK) SS: Frank Ammirati and Diane Ammirati, being duly sworn, says: that they are the petitioners above named and have read the foregoing Petition and know the contents thereof, that the same is true to their own knowledge, except as to the matters Iberein slated to be alleged on intbrmation and belief and that as to those matters they believe them to be tree. ~rank Ammirfiii Sworn 1o be£ore me (his ~ ~lay of March, 1995. Nola~,/Public CARMELA L BORRELU Notary Public State of New York No. 4526699 Oualified in Suffolk County Commission Expires Janua~ SUPREME COURT OF THE STATE OF NEW YORK: COUNTY OF SUFFOLK FRANK AMMIRAT! AND DIANE AMMIRATI, PLAINTIFF,. vs. GERARD P. GOEHRINGER, SERGE DOYEN, JR., JAMES DINIZIO, JR., ROBERT A. VILLA AND RICHARD C. WILTON,, DEFENDANT INDEX :[~ AFFIRMATION CARMELA L. BORRELLI, an attorney at law, duly licensed to practice in the Courts of the State of New York, under the penalties of perjury and upon information and belief, states as follows: 1. l am a member of the firm of Ongioni & Borrelli, Esqs.,attorneys for the Petitioners herein and make this affirmation in support of the Petition to annul the determination of the Zoning Board of Appeals of the Town of Southold rendered ori February 1, 1995 and filed on February 8, 1995 with regard to three applications for variances made by William F. GaSSer and the American Amoured Foundation, Inc. d/b/a the American Armoured Museum (hereinafter referred to as the Applicants). 2. I am fully familiar with the facts and circumstances surrounding the subject matter having represented the petitioners herein over the past five (5) years in opposition to the many and continued applications of the Applicants for relief from the zoning code after having violated the code for many years. 3. The subject applications are the latest relief requests of Applicants in an attempt to legitimize what has been an illegal operation since 1981. Despite Petitioners continued efforts to -1- obtain relief from the arbitrary disregard by an adjacent property owner of the Town's zoning code, no such relief has been forthcoming. A brief history of the site is in order to fully apprise the Court of the background of the situation at hand: The Applicant purchased the property in 1981. Applicant had previously "unofficially" spoken to the Board with regard to using the property as a museum despite this fact, Applicant commenced operations as a museum sometime shortly after purchase. The property at that time was zoned C (Commercial) and a museum was not a permitted use despite this fact, Applicant commenced operations as a museum sometime shortly after purchase. At the time of the implementation of Southold's Master Plan, the property was rezoned into two sections: LI (Light Industrial) for that portion fronting on Love Lane and RO ( residential office) for that portion fronting on County Road 48. Both of these sections are contiguous to petitioner' s property. Under the new zoning a museum was still not a permitted use. The self-proclaimed museum was and is the final resting place for retired mechanized units obtained from the Federal Government in the form of tanks, armored personnel carriers, helicopters, and various other military instruments. All of the above operations were fully illegal under the Southold Town zoning code until 1992 and remain partially illegal to this day. According to the Applicant at the hearings held with regard to the instant applications, the fencing was installed sometimein 1981. Said fencing was then and is now in violation ofthe Southold Town zoning code. At various points in the history of this Applicant and this site, the Applicant has claimed that various other governmental agencies required the fencing or even higher fencing but never has the Applicant provided proof of those assertions. In 1988 the Applicant installed a gun tower at the site and immediately renamed it a POW/MIA tower. The tower violated the height requirements (it was in excess of 18 feet but has since been reduced by a couple of inches to bring it in conformity with the code) and additionally violated the set back requirements of the code as it was placed at the front entrance to the site on Love Lane adjacent to the entrance to petitioners' property. The tower was subsequently moved 100 feet to the rear of the property as one of the conditions imposed when Applicant sought and -2- received a zone change from the Town Boai'd in 1992.~ HoWever, the flew location violatod the set-back requirements and Applicant sought relief in one of the instant applications on the basis that under his concurrent site plan review by the Planning Board (now years after it should have been done) he is being required to provide parking spaces arid to relocate the tower becatlSe of the Planning Board's requirements. A thorough review of the history of this site and its multiple and continuing violations of the law were contained in petitioner's memorandum in opposition to the applications submitted to the Zoning Board of Appeals in opposition to the applications. That brief was accompanied by 29 exhibits extending over a period of 14 years confirming the abuse of the zonit~g code by the Applicant and the failure of the Town of Southold to uphold the law. 4. The zoning code of the Town of Southold requires under Section 100-93 that a museum, which is a permitted use in the Hamlet Business district, enclose all exhibited material within a building. The Board on February 1, 1995 denied Applicants request for outside storage which left the applicant with two alternatives 1) to remove the several dozen tanks and armored vehicles including a helicopter on either side of an existing building and 2) to seek permission to build andther building to house the armored vehicles. However, the Board arbitrarily and without foundation interpreted other sections of the code regarding the parking of vehicles "outside" to include the storage of tanks and other similar mechanized vehicles as permitted in Hamlet Business and thereal~er restricted the Applicant to a 14' x 185' atdp adjacent to the railroad tracks (some 36' from Petitioners property line). The Board denied Applicants request for a variance from the code to enable him to store the mechanized vehicles outside a building, but, by slight of hand gave Applicant exactly what was needed except that the outside storage was limited to the aforesaid strip of land. ~ The zone change was necessary because a museum is a permitted use only in Hamlet Business. However, also according to the code as it pertains to the Hamlet Business district all storage must be In an enclosed building. Thus the zone change only cored the use proscription but mandated s request for relief in the form ora variance from the Board because outside storage is still prohibited. -3- 5. Affirmant was reproached at the public hearings for referring to the tanks and similar vehicles as war machines. Affirmant was advised that the tanks and similar vehicles were "historical artifacts". The nature of the reprimand confirms without a doubt that the tanks and similar vehicles are display items for the museum and as such they must be enclosed within a building. The recharacterization by the Board of these display items of the museum as vehicles comparable to automobiles is magic more becomin, g !o Houdini than to a Zoning Board of Appeals. To accomplish this end, the Board throtlgh a rather circuitous route takes us from Section 100-236 which provides that no unenclosed storage is permitted in a residential district (except for operable passenger vehicles capable of passing inspection or recreation or boats and commercial vehicles) to mean that tanks and similar motorized vehicles are permitted to be stored openly at Applicants property because such property is not in a residential district. The Board took the negative approach by stating the subject parcel is not residential but is rather Hamlet Business and in Hamlet Business museums are a permitted use as is "open space" and "parking lots". A rather magical transposition since under the permitted uses in HB under Section 100-93 there is no listing among the 18 permitted uses and 1 ! special exception uses for a use called "open space" or "parking lot". In this rather clouded gray area the Board created by these illogical conclusions, Section 100-13 (the definition section) is used to apprise the public of the definition of"open spaces" and "parking lots" which in some unknown fashion now allows tanks which are the display exhibits of a museum to be stored in the open without benefit of an enclosure. The variance for open storage of display items for the museum without benefit ora building was denied by the Board because Applicant's request was unsupported by evidence and Applicant had not met the requisite criteria to be granted such a variance. The Board rightfully denied that application because the record clearly showed no basis for granting same especially in light of its self-created nature. However, in continuing to shelter this applicant from the proper administration of the law, the Board stretches logic to come up with a rationale to permit the outside storage of the display items, namely tanks, in a 14' x 185' strip of land at the site through a novel interpretation of the definition section of the code that equates tanks to cars. 6. The Board's decision has no basis in law because the Applicant submitted no support for his'requests. The Board's decision is arbitrary and capricious and totally without foundation either within the record or within the confines &zoning law. While a zoning board may interpret the applicable sections ora zoning code, such interpretatiofl is subject to the constraints of logic, the purpose of its enactment and the overall law of the State of NeW York. This Board'S decision meets none of those criteria. Section 100-13 (definition section) defines "outdoor storage" as the "keeping in an unroofed area, of any goods, junk, material, merchandise Or vehicles in the same place for more than twenty-four (24) hours". The. t~nks and similar vehicles can fit any one of the five categories listed in that definition depending on the perspective ofthe observer but no matter into which category they fall they are certainly in the same place for more than 24 hours when they are the "historical artifacts" of a museum open to the public for viewing. As such they are forbidden by the code (Section 100-93) to be so displayed in HB but rather must be contained within a building as are all museum artifacts. All of the sections of the Southold Town zoning code mentioned in this affirmation and in the petition are attached hereto in numerical order as Exhibit 6. 7. The Board in rendering its decision cites to New York Town Law as requiring it to consider the benefit to the applicant if the variance is granted and the detriment to the health, safety, and general welfare of the neighborhood or community that would occur if the variance were granted. The Board neglected to state that in making that determination the Board is mandated ("shall':) to take into consideration five criteria which are: -whether an undesirable change will be produced in the character &the neighborhood or a detriment to neighboring properties; -whether the benefit sought can be achieved by some other feasible method; -whether the relief requested is substantial; -whether the relief requested will have an adverse effect or impact on the physical and environmental conditions in the neighborhood; -whether the alleged diffiCUlt was self-created. The standard given in Section 267b of the Town Law is an attempt by the legislature to codify the case law pertaining to the practical difficulties test. Petitioners' memo to the Board cited many cases defining practical difficulties and recent case law interpreting the new Section 267b as still requiring compliance with that test. -5- The record, created almost entirely by Petitione~ since Api~licant SUpplied little more than the applications, clearly showed that the requested ~ances must be viewed in the context of the history of the site: the site cannot be considered ~ l~ot changing the character of the neighborhood despite the Boards contrary finding simply because it has existed for so long; the extended prior existence was in flagrant violatioi~ of the law; each and every problem with the site was self-created despite long and continuing admO. nit. ion~ by various board's of the Town to correct same. If the Applicant complied with the one outstanding and all encompassing portion of the law i.e., that the museum's artifacts be in an enclosed building, the present and even past requests for relief would not be necessary: There is ~t feasible ~otution for the applicant to pursue and that is to obtain a Building Permit and enclose the artifaet~ within a building. Aff~rmant was asked at the public heating to request from Petitioners a "wish list" of what they wanted the Applicant to do that would satisfy Petitioners. Such a request by the Board was an admission that there was no basis for the requested relief and Petitioners were being requested to acquiesce in the granting of the unwarranted variances by stating what would satisfy them so as not to pursue a judicial adjudication of the issues. Petitioners wanted and continue to want compliance with the law as they have been required to do with their own property. Variances, under the New York approach to zoning, are to be sparingly granted because the zoning law itself is a demonstration of the locality's intent for its development. Zoning board's have been cautioned over the years to become miserly in their distribution of variances so as not to totally circumvent the purpose of the zoning ordinance, itl fact, Section 267b of the Town Law specifically mandates ("shall") that zoning boards grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect the health, safety and welfare of the community. 8. The decision rendered by the Board was not unanimous. Two members of the Board voted "no" with regard to the relief that was granted. This less than unanimous support for the relief that was granted is indicative of the facts contained in the record that the variances should have been denied in their entirety. While the fence height and set back distance are not significant, these coupled with the convoluted method used by the Board to provide outside storage to Applicant, make the variances granted significant. The Board has justified its granting of th6 f~enee height and tOg, et set back variances 0X th~ bases that they are not substantial or unreasonable and they will not have an adverse effect or impact on the physical or environmental cottdlti0ns in the fleighborhood. However, if this Applicant had applied 14 years ago for permission to ~rect th~ fence and itastall the towel' and store tanks and similar vehicles at the site, there would certainly have be~a a significant change in tbe character of the neighborhood and such requ~?ts, would have been denied. At that time, the use itself would have been prohibited and, even if ti existed, the variances requested would have been substantial and unreasonable in light of the heighbol-hood. The fact that these uses and violations have existed illegally for so many years ts not a b~sls for tt0~.determiriing that they are not substantial or unreasonable or will not have an adverse effect on,the physical or environmental conditions in the neighborhood. In fact, the possibility ofenvironm6ntal p¥Oblems was addressed by the Board when it rendered a negative SEQRA determination by conditioning such determination on Applicant taking certain precautions with regard to 0il spills and similar accidents. The impact is therefore significant and does not diminish because the Appllcant created an illegal museum quite some time ago. Petitioners have consistently OVer the years coniplained of the noise of moving tanks, of the sense of physical disquiet occasioried by large guns pointed out from the site, of the visitors who not wishing to pay the entrance fee to the museum walk onto Petitioners property to view the historical artifacts (now conveniently equated to automobiles), of the unsigbtliness of huge weapons of war in a pastoral setting on a quiet tree lined street in a rural area when Petitioners who are in the catering business have Sunday brunches outside in the Summer, of the unsightliness of chain link fencing with barbed wire, of the noise of demonstration of tanks which move up and down a 50' wide lot adjacent to Petitioners for hours on end. 10. All the variances requested should have been denied. The denial of the most significant request, to store tanks and similar vehicles outside, was in fact denied. However, the Board's new and novel interpretation of the definition section of the code has overriden both their denial and the mandates of the code itself. The code specifically refers the reader to Webster's dictionary for the definition of words not defined therein. Webster's defines a "vehicle" as "any device on wheels or runners for conveying persons or objects, as a cart, sled, -7- automobile, etc. and defines a "tank" as "an armored, self-propelled vehicle moving on cat~illar treads". The Board, however, has made the two synonamous which to anyone's eye theY are i~ot. WHEREFORE, it is respectfully requested that the decision of the Zoning Board of Appeals granting a variance from the zoning code for fenc~ height and set back requirem~ta ~d the interpretation of the code allowing the outside storage of tanks and similar equipment in a designated area be annulled in its entirety. Dated: March 6, 1995 Greenport, New York Carmela L. Bon-elli ammirati:affirmat -8- Exhibit 1 // Exhibit 2 'AU~ ' ~ 1994 Clerk TOWH OF SOUTIIoLD, APPE..\L FROM DECISION Or BUILDIFIG INSPECTOR APPEAL BIO. DATE .............................. TO THE ZONING BOARD OF APP~Ls. TOWN OF SOUTNOLD, N. Y. I, (We)American Armoured FoundatiOno~ 2383 ]~ ~9, ..... ............................................................................................. ..... ~.b...~z ........... Name of Appellant Street and Numbbr .......................... ~qrlkc~r~g~a ............. ' .............................. N~m,,Y~:k, .......... HEREBY APPEAL TO Municipality Stole THE ZONING BOARD OF APPEALS FROM '[HE DECISlohl OF THE BUILDING INSPECTOR ON APPLICATION FOR PERMIT I'qO ..................................... DATED ...;J,].'iLL(I~;.../..':J~.]..'.~..I..?.__ WHEREBY THE BUILDIhlG INSPECTOR DEFILED TO Name of Applicant for p~trnll' -..zg.&3: ...... F.t:~..t,.~--~ven~e ........... :..t~t~,~ ................ ..IJ..e. ~... X .°...~..k. ........ ~rteer and ~umber MuniCipality; State )PERMIT TO USE ) PERMIT FOR OCCUPANCY 1. LOCATION DJ~ THE PROPERTY ...Lg.~.m..~aJlm.....,.,J.~.~.:l;J~t~lLmk....,.....~B ...................... ..... Street /Hamle~ / U~6 DIIIHc{ on Zonlncj Md~ Olst~ct 1000 SecHon 14~1ock 2Lo~ 16_ . ........................................................... EU~P~ ~ Wt11~ ~. Moo No. 'Lot No, PrtO~ ~W~. _oeo~g~ ~enny sr. 2. PROViSlOKI (S) OF THE ZONIHG ORDINANCE APPlD~LI~D (IhdR:ala th! AHIcla Section, Sub- section and Paragraph of he Zoning Ordinance by numb6i'. Do hot' i~Uof~ th~ Ordtnance.) Articl~ IX Sectton lo0-g] g, (t1 3. TYPE OF APPEAL Appeal Is made herewHh for {pleas8 check ~ippropr{ate box) ( ~ A VARIANCE to th~ 7nnlncj Ordlnanc~ or Zoning ( ) A VARIANCE du~ lo Jack of acce~ (Slate of H~W Art. 16 Sec. 280A Subsection 3 () PREVIOUS APPEAL A' appeal (hal_had(has hOfJ b~ert mad~ with Ht~pecJ to tht~ cJecl~lon ptevlou~ 0J' the Building Inspector or with respect fo this properly, Such appeal wa~ ( ) request for a special permit J ] request for a variance ~ndwas made in Appea! him .~. Z"~.. Dated .... I~.~..L.I. ....... · ........ ' REASON FOR APPEAL ( ) A Variance to Sedion 280A Subsection 3 (v~A Variance. to the Zoning Ordinance Is requested ~or th~ tea~on that POW/MIA Tower does hoe mee~ requirements. ~ rea~ and ~td'e yard set back (Conflnu~ oh other Jld~) REASON FOR APPEAL Con/inu~zJ I STRICT APPLIcATIoN OF TIlE ORDIFIANCE would produce I~odlc6l dlfflcullles or unn~c~*- saw HARDSHIP because Due to the width of property fSOi~ ,,' . ~~ . that the planntn board ~ ..... ,i~.' / =-d parkthg r=~ul=ttons necessary g ~'= ~quzrzng ~very foot of proper~y is 2. The hardship cr.afed Is UNIQUE and Is hal shared by oil ptopeHl~J ollk~ I. lhe Att other properties tha~ exi~ '~n ~ HB'~nvironmen~ in th~ t.mmed~ate vtc~nih~ fortunately a~e not'co~'lned to a narrow of prdperty such as ours. 3. The Vdrlanc~, would aba,rye th~ ~plril' of Irh~ ordlr~ot~c~ tad ~OULD NOT CHANGE THE CHARACTLq OF THE DIS JklCT becau,~ tls POW/MIA memorial Totfe~ ha~ stood for over 10 years, so moving {n away fr6m.the on this p~oper~y ~e~r and s~de yard would not chaM~e ~he character that has ~xis~d for ove~ .10 years. STATE OF NEW YORK COUNTY OF .5'ttrr-t,L~' Exhibit 3 REC~VED ~U(] 2 J0~'~TM OF SOUTIJoLD, I,J[~W YORk TO TIlE ZONING BOARD OF APPEALS, TOWN Or- soUTHoLD, hi. y. I, (We) AmerLcan Armoured FoundaF. iOnof · 23 3 Nome at A~peUonr ...................... ,3 ..... ~.h....&~.e, .......... Street and Number .......................... [q/tko.n. Lkr~ma .........................................N~.m..Y~k. .......... t~EREBY APPEAL TO Municipality Slate TIlE ZONING BOARD OF APPEALS FROM THE DECISION OF TI~ BUILDIFIG INSPECTOR ON APPLICATION FOR PERMIT NO. WHEREBY THE BUILDING INSPECTOR DEFilED 'FO American Armoured Founda~ort . o~ .............. ~J~T~'~'~'A'~ J';~;'~;;';;~ii ............... ...Z38.3 ....... F'~-~-.bh..A yen ~ ........... R~,tc~.~c~,~ ......... ,.N.e w York Street and Number ' - Muh~JpalJJ~ '"~ ................................. PERMIT TO USE Slate PERMIT FOR OCCUPANCy 1, LOCATION OF THE PROPERTY ...l,g.,ze...ban~ ......... F~££.LI~ucl¢ .............. ~B ....................... Otstric[ 1000 Sec[ion 14%1ock .2Lot 16Sfreet /Hamlet / Us~ DsIHci on Zoning Mop ................................... - ......................... Currefl~ ~,~p WJllJa~ F. gasser Mop No. · Lot No. ~ PrJo~ Ow.~. ~ sr. PROVISION IS) OF THE ZOHIHG ORDINANCE :action and Paragraph al th~ Zoning Ordinance by nUm~. ~rtici~ XXIII Sec[ion 100-231A TYPE O1: APPEAL Appeal Is made herewith far (please check appropriate box) ~'~ A VARtAHCE to th* Zarifng Ordinance or Zoliih~ M~ A VARIANCE due to lock of access (SlaJ~ of ~IW 'YOrk T~ L~ Chop, ~2 conj. Art, 16 Sec. 280A Subsection 3 PREVIOUS APPEAL A'prevlous appeal (has not) been made with respect lo this decision' F lbs Building Inspector or with respect to this properly. ,Jch cpp~al was ( ) request for a Special permit { ) r~:quest /or a variance ,d ,as made ^ppeo! . . 2. ............. Do'ed .pcil. .C..... lee? REASON FOR APPEAL ) A Variance Jo Secilon ]80A Subsection /~A Variance to Ihs ZoNing Ordinance requesfe~ ~or ihs reason thai Fence h?~h~ does HB district. fence height (Conhnue ~n oihBt ~lde) REASOH FOR APPEAL Con tinuL'~j 1. STRICT APPLICATION OF THE ORDINANCE would produc~ practical dllflcultles or unnece(- saw HARDSHip becaUse The height of this fenc~ and the nee~gary barbed wire extension is for security and without this security vandalism, intruders, property damage,and liability m~y result 2. The hordsh~p cteotedls UNIQUE ondl~notshored bY oll Pto~HI~J altk~ In th~ Imm~dlal~ vicinity ofthls ~ropert¥ and in this use dl~trlcfbecsu~ Al'! o~er properties in the HB environme~t Jn im.mmediate vicinity do/not have ko eonfotm ~o m~ndato'~y passive sedurity measuies set down by the 0iS~ Militaiy under the DoD 4160.21 and 5100:76 regula.btone set down'on all properties displaying ~ov~rhment weaponry ' 3. The Vartonc~ ~ould ob~erv~ th~ splrff 0t l'h~ OrdlnaHc~ ~JHd WOULD NOt CHANGE THE CHARACTER O1: ]-HE DI.~I P,1CT b~caus, This fence has existed on th~ Drbper~y .for 13 years and at time of installation lg81 there were ~o height restrictions STATE OF NEW YORK COUNTY OF: 5~1F'fc~L'L' TOWH OF SOUTIIoLD, H~'W YORk APPEAL FROM DECISION OF BUILDING INSPECTO~ APPEAL No. TO THE ZONING BOARD OF APPEALS, TOWN OF SOUTHoLD, H Y We amerlcan Atmoured Foundation 23 ~ F ,,~ , .................................................................. o~... . . ,~ if ................... ..................... Marne of Appellant ' SIt~{ O,d ~qumb~r .......................... J~QIlJ~orLkpma ......' .............................. ~&w...Yo~l~ .......... MEREBY APPFJ~L TO Municipality SJ'ot~ THE ZONING BOARD or APPEALS PROM THE DECISIoIq Or TI-t~ BUJLDIHG INSPECTOR ON APPLICATION FOR PERMIT NO ..................................... OAT[D ...... ~'~.t4./.l~, ./'.hr I.~:7...~. ........... WHEREBY TNE BUILDING INSPECTOR DENTED TO ( ) { ) American Armoured Foundation Name of Applicant for permit of -..z3~3 ....... ~.j:~..%,h..4~v~m~ ........ tt {~ · . ....., ..... ..N. ew ..Y.o.r.k .... 'tree' ' - .. ~t~ .nko~ ....................... ~ ~ aha Numoer MUnlctpalll¥ SJO{~ PERMIT TO USB PERMIT FOR OCCUPANCY I. LOCATION OF THE PROPERTY ...LD.~.E'....L,~.n~. ......... J~L~[kJ. klJz~k .............. ~B ........................... · {;tree{ /Hamlet / U~e DI~JHc{ 0h Zohlng Mo~ Dts~c~ 10O0 Sec~lon ld~lock 2Lo~ 16_ .. .............................................................. current ~,~ William F, ~asser Mop No. ' Lo~ No. Phloh 0Wh~h. _Geotg~ Penny Sr. 2. PROVlSlOkl (S) OF THE ZoNIhlG ORDI~,IAJ',IcP API:I~LI:D {IHdleat~ th~ AHIcI~ Section, Sub* section and Paragraph O~ Jhe Zoning Ordlnonc~ by nUr'nb~t~. J~d ~OJ qUo{~ Jh~ Ordinance.) ^rti¢l~ IX SecNon 100-g3 - 3, TYPE OF APPEAL Appeal Is made herewith ~or (pJ~S~ check ap~Popriate box) ( ~ A VARIANCE fo fh~ ZohJng OrdJ~nc4 or ZonJn~ ~0~ ( ) A VARIANCE dO~ to lack o~ acc~l (Stot~ of ~W'Yotk t~H L~W Chop. 62 Conl. Art. 16 Sec. 280A Subsection 3 () 4. PREVIOUS APPEAL A'prevlou* appeal (has neff bead t'nod~ With t'i~specf lo lids decision' 6~ lhe Building Inspector or with respect lo this properly. Such appeal was ( ) requesf for o special permJf { ) request ~or o variance · p. . .j., .... ~. ............................. REASON FOR APPEAL ( ) A Variance lo SecJlon 280A Subsedion 3,, (v< A Variance Jo Jhe ZodJng Ordinance Is requested for the reason that outside displays ar.e not petmlEl:ed t~ ~h6 llB Di'stri'c~ rolm ZBI (Continue on oflmr R~AS~F! FOR APPEAL Coa|inu~ 1. STRICT APPLICATIOH OF THE ORDiNAHCE would i~toduc~ procttf:bl dtUIcultle~ or unnef:e~. sew HARDSHIP because As a non-pro,It mu~ and tourist ~ttraetion on tbs North Fork exhibits ~nd displays ate a n~ary part for any musuem and without,these di~play~ and ~khibits not onl~ would the attraction to this non-prpftt m~mortat mUSeum be red~c~d, causing loss of capitol to matntai~ {'his non-p~o~it, but fhe monetary problems that this would ~h~ra~ in th~ Shipping of these exhibits and displays back to the military would ~orce the museum to close its doors~ and thus deny the North Fork a world class tourist attraction 2. The hordsMp created ~S UHIQUE and 1~ hot jhored by ~11 ~tap~Hle~ oltk! In the Immedtbte vlclrdty Of thlt ~rapert~ and In this us~ dlsirtcf becous~ There exists no;other non-profi~ mu§eum~ in tJie H~ environmeflt' in'~he immediat'e vicinity 3. The Variance would observ8 th~ ~ptril' ot th~ Ordlnonce ~hd ~OULD NOT CHANGE THE CItAR,~,CTER OF TiqE DIS~TRIC~ b~cause As stated be~ore ~hese exhibt~ h~9~ ~xi~t~d ~or 13 years and at the onset of kh~ musUem which -- had a 'c.o ~or a storag~ building there was no re~krictlbhs ~ot e~o~age o~ display in .the .c zone . COUNTY OF.St//:./20_/~ ) ',tgh~tUtl. ' . ' ....... S~o,, lo lh~s .t~ ...... :,..:..~ ............ : ............ day of... ~" ' I~ t.,~tt ~ ~,,..~.~,, · ........ ' ~OTA Y PUc:.h,, oL,o el HOW Yoi~ /lo, 4 4~33~-:]uff~lk County ~ ~otory Publlc Exhibit 5 ~AI_S BOARD MEMBERS ~ard P. Goehringer, Chairman Serge Doyen, .Ir. James Dinlzio, Jr. Robert A. Villa Richard C. Wilton 'tOWN Or- SOUTHOLD Soulhold Town Hall 53095 Main Road P.O. Box J_J_79 Southold, New York Fax (516) 765-1823 Telephone (5i6) 7G5-1809 FINDINGS AND DP. TEItMINATION With refp. renee to erich e[ tho roll0wil~g .~parfltel~/ tiled applleMtons and appeal file nu~bers: SecUon JO0-9tC(l) of {hu Sou{hold Towfl Zofllfi~ COde; baned upon the July 12, i994 Notice of DlsapprovM t~od by th~ BOlldiflg Inspector fay the placement o~ necessary tower ~teuetu~o ~Meh 1~ ~q~l~d to lo~ted In n ~ar yard ~tth ~ ~tbnek n~ ~e ~oetlo~ t00-3aB{2) fit feet from the property line. p~p~t~ k~owfl ~nd.~oe~d to ns the Amerie~an Armoured 'Fat~k M~tgeom~ 640 lO~o t~n~ and tho ~ooth ~lde of Ceunty RoOte 4gl, Mattltuck~ NYI CoQ~ty Ta~ Map Parcel No. 1000-140-2-16 lo.ate(! In th~ Ilnmlet Bu~lno~n Zo~ Dt~tHet; nntl A 1. No. 4261 - Apptt~tton for n Vnrla~ed tlfldbr AHIcle XXlll~ · ' 'PP - . A of the Southold Town ZO,t~ based upon ~e~.t,o~.10~;~l ~,~....r n~...royal fo~ tn~ h~l~ht of the fen? wt~lqh as the Amert~n Armo~red Tafi~ Mttg~ll~ 640 ~ve ~,,e ,,,, side of County RoUta 48~ Mattttuck~ NY: uouuty Wax Map Parcel 1ooo-14o-2-1~ lo.ted t. the lln~l~t Buatn~a~ Zon~ DlatHct; and Appl. No, iaaa - Appq~tton fop a ~atlane~ uad~ AHIcle IX, ~n 100 9~ of tim zotOu~ codu b~fl tlpo~ th~ Joly J~ t994 Notte~ Sectt~ - .. . ,. ...... a,..i~., w~eh t~ ~ot per~ltted ',. val for the OUts]d~ ~tO~ge or. ~sp?~ . _ _ - . 1000-140-2-1 .- ' ' ' ' ' dcsired to be heard were heard dad thel~ tu~tlmbny ~eo~ded; flhd WlIEREAS, thd Board ha~ ~fall? eolt~ld~ead ~11 t~tlmony and WtlER~A~; Board Memb~ I,a~u.po~onatly ~t~d and the surrottndlttg with the pr~m,.~., in qtie~tlou, I{. pFU~ti[ ~o~tfl~ Page 2 - Appl. Nos. 4260, 4261, 4262 Property of WILLIAM GASSER Determination Rendered February 1, 1995 WHEREAS, the Beard made the following findings 'of fact: 1. BASES OF APPEALS. These are appeal applications based upon a July 12, 1994 Notice of Disapproval issued by the Building Inspector. 2. OWNERSHIP: Town records show the owner of the subject property as WILLIAM F. GASSER, having acquired the subject premises on September 3, 1981 by deed at Liher 9071 page 54. 3. LOCATION AND DESCRIPTION OF PROPERTY: The subject property consists of an area of 32,109 sq. ft. with 50 ft. frontage along the easterly side of Love Lane and-60 ft. frontage along the southerly side of County Highway 48. The parcel is "L" shaped with 248.50 ft. frontage in an east-west direction along the Long Island Railroad tracks. The property extends northerly 375.72 feet from the Long Island Railroad to the County Highway. The property is conforming as to total lot area, width and depth in thi.~ H~,mlet-Business (HB) Zone District. 4. USE OF PROPERTY: The subject property is known to be a non-profit tank museum which existed since the early 1980s. Prior to having been acquired in 1981 by William F. Gasser, the property was used as an C-Light Industrial storage yard related to a nearby commercially established lumber company located on Sound Avenue, Mattituck. 5. ZONING. In 1981 the lower half of the subject premises was zoned "C-Light Industrial," and the upper half of the subject premises was mixed ~C-Light Industrial" and ~A~ Agricultu~al-Residential. In January 1989, a new master plan was adopted which rezoned the premises to Light-Industrial. Subsequently, on May 27, .1992 the applicants applied to the Town Board for a change of zone from Light Industrial and Residential Office to Hamlet Business, and on November 10, 1992, the Town Beard granted this change in zoning, with conditions as noted in the Declaration of Covenants filed in the Suffolk County Clerk's Office on November 8, 1993 at Liber 11651 page 134. 6.' CHARACTER OF IMMEDIATE AREA. Abutting this property are the following: (a) to the northwest is a 34,578 sq. ft. parcel owned by Mr. and Mrs. Frank Ammariti since October 8, 1985 as per conveyances at IAber 9899 pages 22 thru 36 {8 deeds}. On November 26, 1985, the neighbors applied for and received a Special Exception under File No. 3407 for a 470 sq. ft. catering services of prepared take-out foods" in conjunction with the owner's primary single-family residence on the second fleer, and separate single-family apartment use on the existing first floor. The .prope~rty in 1985 was zoned "C=Light Industrial" and prior to the Ammariti's conversion to catering, it was used as a multiple 3 - Appl. No~. 4200, 4201, 42~2 Property of WltAAAM OA~SER Determinathm Rendered Febroary l~ 1995 residence for three families. CUrrentty~ tile ZOlitltt~ designation for the Ammarlti's parcel is llamlet Business. lb) to the extreme north, County ~tottte da (formerly known as Count. y Road 27) which ta a heavily tvavO, led dufit-lafle highway. lc) to the east, property Identified as j000-J40-~-la~ now nv formerly of I)oroski, parliy lo.ted la {h~ hight-ladustrtat zone and partly RastdentiaI-Office. Prior to t989 tt~la p~perty wa~ also zoned C-l,i~ht Industrial and Agrteolta~JlRealdenHnl. (d) to lite .~outh, lite l,otq~-I~l~nd ~tMIroatl track,~, l?urther sooth of the J,IRR track, is the t, ostuo~ district which eon~tat~ of pcr~onal service ~t.ore~, w/th nearby municipal parking a~ean. APPLICABLE ZONINO CODE PROVISIONS. 7. ACCESSORY TOWER SETBACKs: Article I×~ .%citoo 100-glC(l) reads as follows: Page 4 - Appl. Nos. 4260, 4261, 4262 Property of WILLIAM GASSER Determination Rendered February 1, 1995 The accessory tower structure is shown on the sketch submitted with the application to be 19 inches short of the set-back requirement, at an 3.42 ft. (41"} set-back instead of five (5') feet. It is also noted that the tower structure was reduced in height to less than 18 feet as required by the code when it was moved to this particular area - all resulting from an attempt to comply with the Town Board's eendition~ under its grant of zone ehange for this Museum on November 10, 1'992 and pursuant to a Declaration of Covenants filed at Liber 11651 at page 134 on November 8, 1993. The subject tower was ~loved to thi.~ location, however, without a building permit or set-back variance. A height variance is no longer necessary based upon the modifications to the tower by the owner-applicant. 8. FENCE HEIGHT: Article XXlII, Section 100-231A (added 1-9-89) requi~es the height of a fence to be limited to six feet when located in the front yard of nonresidential zones, and when located in or along side and rear yards, the same shall not exceed 6-1/2 feet. The fence height along the northerly (side) line and westerly (side) property line abutting ~mnmriti existed prior to 1982. At that time, fence heights along side and rear lines were permitted up to eight feet (Section 100-119.1 of the 'former zone code) and fence heights within five feet of the property and within a front yard area were limited to four feet in height. The height requested by this application is for a total of 6'8" (see applicant's sketch submitted with this application). 9. STORAGE OF MERCHANDISE IN ENCLOSED BUILDINGS: Article IX, Section 100-93 of the current Zoning Code reads as follows: ... 100 93. Uses confined to enclosed buildings. All uses pe£mitted in the B District~ including the display and sale or merchandise and the storage Of all property, except living pla~t~, shrubs aRd trees, shall be confined to fully enclosed buildings on the premises .... The items which are not presently wi.thin an enclosed building are armoured vehicles, display guns on stands and other historical artifacts related to this type of museum. OPPOSITION/OTHER DISCUSSIONS 10. OPPOSITION RELATIVE TO NORTHWESTERLY LOT. During the hearipg, opposition was received from the owners of property along the northwesterly property line of the subject premises. Memorandums have been furnished listing the areas of concern -- all of which have been fully considered by tllt~ Bo,led M~tab~t'§ tmdOl- thi~; application. ,C;ome Issties ~tsed were: ~) a claim by oppou~llt{§} that MthoUlCh th~ Town was coffnizant of tho fact that tile mu~u~ ~or~ than 10 without poser of enforcement p~oeeedt~ [o~ It~ ~tBtehee o~ a mtlseam u~e will, tn the epposltlon's vlnw~ p~elodo the ~nt et the wtthln varlanees; b) n claim hy opponettt(!;) thM raven trader the 1992 a hon-p~ofit mtmeilm Without otlt~Id~ e) .the Board at herb h6aHaE~ aid ~uqae~t f~m opponent(s) list of their own suffffe, tlotm (similar to wltat is ~om~tlm~s referred to as a "wish ltst") I~ which thc ~B¢¢kB~ ~ald b~ allavlat~d or be les~ ndvers~ tO {het~ peopeety by Way et ~Itt~tiOa~ flltd the oppouent(~) d) whether tn fact lite ItaM~ which ape ~ot within an eh(dosed buildlnff weald tach,de motorized vehlel~ wltteh ha~ E~mernlly thro~tghoOt the township foe many ~) Whether ee not the sllb~Issloh tff In[o~malloa ~howlng tile applicator was opcratinff ~s a ~ttse~m ~eom In~l q~tlt i~S2 ~? ay ?.u? be determined at this time, ttlideP these applt~uonst pa~ttcamr~y mace the act/on belft~ appealed h~el~ wa~ tak a by th~ Building hmpecto~ Iot~tiofi~ fettle height, and nut,ldo ~to~e et Secti(nl JOO-J3 ef thc zoning code arid fl ~et~mtnatton o[ tho required height for that yard litl~ and yakd fi) whether or not the ehliHffd O[ th~ ZOt~ i~y the 'rowu l~on~d in 1~92 t~ dlreelly relevant or a eeason to peeelade the ff~mting or denial o~ the varintlee. FINDiNGS~ INTERI'RETATION AND DETI~ItMtNATIONS lt. Poe rccopd plikpo. O~} It I~ aotud fihd raHIt~p detet, mitted that Board~ In a qaasi-judlelal ~tntos ......................... Page 6 - Appl. Nos. 4260, 4261, 4262 Prol6erty of WILLIAM GASSER Determination Rendered February 1, 1995 12. INTERPRETATION. In thi.~ determination, it is confirmed by this Beard that it has been the position of the Town for more than 37 years to permit the parking of movable, motorized vehicles or similar transportation in open areas. In fact, Article XXIII, Section 100-236 of the zoning code states that "...No unenclosed storage, except parking of operable passenger vehicles capable of passing inspection or recreation or beats and commercial vehicles as set forth in Sec{ion 100-191 shall be permitted in a residential district... (emphagis added)." This is not a residential district; thig is a business district which permits museums, *open space, **parking lots. Section 100-13 of the Zoning Code, defines these terms: *OPEN SPACE: Any parcel or area of land or water essentially onlmproved and set aside, dedicated, designated or reserved for public or private use or enjoyment or for the use and enjoyment of owners and occupants of land adjoining or neighboring such open space, provided that such areas may be improved with only those buildings, structures, streets and off-street parking and other improvements that are designed to be incidental to the natural openness of the land. **PARKING LOT: An off-street, ground level area, surfaced and improved for the temporary storage of motor vehicles. 13. VARIANCES. Fence height and tower setback relief are area variances (ref. New York Town Law, Section 267(1) amended July 1, 1992}. New York Town Law, as amended, provides that ZBAs consider two basic things: A) the benefit to the applicant if the variance is.granted; and B) the detriment to the health, safety, and general welfare of the neighborhood or community that would occur if the variance were to be gr~anted. In balancing the interests above, the and determined, the following five requests: Beard Members have considered, factors for these area variance a) there will not be an undesirable change in the character of the neighborhood or a detriment to nearby properties, as granted for the fence height variation between 2" and 8"; the yard line is defined on Page 10033 of the code to be "...A line parallel to a street or lot line at a distance therefrom equal to the respective yard dimension required by this chapter." The Bulk, Setback Schedule applicable to t_he Hamlet Busine.ss Zone District (alofig Love Lane) is for a front yard setback at 15 feet. A fence height limitation with the front yard line area is six Ih'opcr[y of WIhI,IA~ l).clcrrnit.dlot, Re,~dcrc(t Irebr.:~ry I, 199S lecl [~)z' no,.:csidcnllnl zone di~lrlcl~. The Ih,~. Thc [Cll~.~e i.q .?,ell for ;Icrq~cllill~:., privacy 1111¢1 .ql}l:llrity pqlrpO~cl~. I)) Ih(~re will t.~t h(? a...de~ir.I)le ch:,.ffc h~ lbo ehnr:,clnr oF lhn lt(~ilThl~orhnod or n dntrhnenl h) ,tr..,-hy pr,)pcrlien, J[ granted f.r lhe lower ~;clt).ck; tho I.calb. of tho t.wer in at the furthest dist.nce from the epp,ment's property, nnd in located very close to the vicinity of the r,,~tr yard of the easterly ndjoi.i.K parcel; tho Io~ntion is eke the ge.nmi nrta real.es,nd nt I00 feet .r mare from l~ve l~,~e a~ stip.lnted hy the 'l:.w. lh)nr(I io il~ 19~1~ l)eclarali(m ,~f Cove.nnl~ n.d Restrictions; e) the bencfil .~o.l~hf I)y the applica.t ea. he oll,crwbc achieved with the placcrnc.t efa re.ce at 6 feet in hell, hr wilhin the yard linc.~, ned at ~-119. ft. ab.p. the aide amt rear property linc.~. ti) lhe hcnefll m.~g. hl Ily thc opplica,lt Itl Iocal. e lit,. lower Ihn I~lc:dln,~ show. in (mlweiF. h<~d :qF.,~i.nt a.y h(~.nfil cl:~irne(I hy Ihe .l).tlleff. prope,'fy ewnnr itt il:: j)rc:~c.I Iocali..~ n~: ct)rnpar~!d Io another I.c. licm of Ihn lower. (11 .~ho. ld I.? ll¢~lc(I lit:Il fo,' ~n .Itenmlivc Icrc:rile. hy Ihe ah.tflnff, properly ¢,w.crn for thc. ir l.mcfil) . e) thc are:l vtu'i:.~ce.,;, f.,. Itt,Ih thc Ihe fncl Ilmt Ihe pr()pcrty j~ ,].iq.cly sl.tp<~d with n. I.-~haped cn.ri~.ratio., nnrrow widlh, Iimiled b.ild~dde area, b.ildinff Iocalion~ ami .th(~r l)re~xi~li.~ .,mc<.fforrnith~, nn n eorn,,lerei~l nt.mKn ynnl wilh l,:,r~i.K of cm,,mercinl lr.ck~ n.d ,,Ihcr w~hicle~; in .or .ncornmon for [cnccn Io I)e plac~d .1 nix Fcel Jl~ h(~ight, or more, when neee.~.ry lo ope,, .lot. Ko yardn [or .erect, i,,K from view n,,,t fer f) lh¢? :trc:~ vnri:.,cn:; will .n! Il{,ye :tit ;tdvcr.qc <~freel {,,,l~:~,~l ,m the phy.ic.I m' <.n~ir(...enh, I cet.lilim~n i. Ihn .eighhorhood er 199~ hy th~ 'r.w. II.:..d n.d No.dive l)eel, r. tim~ ad~pled by lhb lbard ,m Nov~rnl)m. ~, 1994]; nl).lfin~ Ihe m,bject p,'ern{~ lo tho nc. Ih nrc Iht I,.nff Island lbilr.ad ir.cb;; I. the ..rib 1~; n pare~.l of land <~ee-I)iCd an a lalce-o.l (:.h..inK ~(~rvi<:c which i..(.~co.fm-rnh~K i. the thc rcli(~f i~.,-:.,Icd in Ill(? mi,llrn.rn ncce;;:.lry wllh vnrinfionn Page 8 - Appl. Nos. 4260, 4261, 4262 Property of WILLIAM GASSER Determination Rendered February 1, 1995 the health, safety and welfare of the comm, nity; the fence at six feet in height is properly secured and is not damaged, deteriorated, and is not a menace to the public. The applicant-owner has agreed to add slats within the links of the fence and to provide additional screening as would be agreeable to the northerly abutting property owner. NOW, THEREFORE, on motion by Chairman Geehringer, seconded by Member Dinizio, it was RESOLVED, to DENY the relief aa requested for the fence height above six feet along the front yard line, and above 6-1/2 feet along the side and rear property lines for this nonresidential use; BE IT FURTHER RESOLVED, to INTERPRET the activity for parking of movable vehicles to include tanks and similar devices which may be used for transportation aa a permitted use under Section 100-93 of the Zoning Code, with the understanding that these vehicles shall be placed within the southern most 14-feet of the applicant's property, and merchandise and items which are not defined as movable vehicles shall be stored as clearly worded under Section 100-93 within an enclosed building; BE IT FURTHER RESOLVED, to DENY the variance requested for outside storage of merchandise, other than motorized vehicles, since there is an alternative to store these items within an enclosed building; BE IT FURTHER RESOLVED, to GRANT the variance requested for a 19" reduetion in the setback for the accessory tower structure, aa applied, and BE IT FURTHER RESOLVED, that the following conditions shah be complied with: a) Only that area 14 feet along the southerly .property line (185' length) shall be used for parking of motorized vehicles ill order that the remaining 36 feet remain open and unobstructed for on-site movement when necessary of vehieles, egress, ingress, landscaping, parking for guests and employees recommended along the northerly property lien and other aecessibility necessary in the event of a fire or other emergency. b) When the museum is c~sed, the northerly most 35 feet of the property (ad,cent to Love Lane) shall remain opea and unobstructed, except for employees/VOlonteers' vehicles', c) Tall plantings or trees shall be placed and continuously maintained by the applicants along or near the joint Gasser/Ammaratti property line which runs in an east-west direction. If permission to place additional plantings is refused or prevented by the abutting property owners to the north (Ammariti), then confirmation shall be l%ge '9 - Appl. N{m. 4260~ 42GI, 42G2 Property of WI[,I,IAM {]AS,qER Determinatkm Rendered February I, 1995 I)laeed in writinff, wilh proof to 1)e rurnishml tn Ihe 'l'nwn. It in between tho imrlion wlfh rnf'ornnen to planth~Rs on either or lmlh lmreel~. (I) Border renein~ shall I)e nhtlt{:d six feet n.rth of tim r(md line mainlalned in flood eondilinn mid relmired by lhe nppli{:nnh:. e) Iii SiX IllOlllll~l [rom Iho {J:ll{~ of the filinl[ of lhis deelsi.n, nrtifnels which are nnt within a Imildit~g. Allqrnatively, SiX ,IOIItllg [()~ all JldclJfJoll or ltew building area for Ihesn tmrpomm, ill any event, failure t)y tim al)plicnnln Io file a btlildJnK l)(~rmit applie, ation in n limoly fn~hJon sllnll nol proven( tJle Towll [rotll [111 Town Buildin[ l)elmrlmelH' f) this determination shall not pre(dude npplieallon by lhe owners or nn aggrieved ImPly for different relief ns may be required hy the Building Inspeclor and filed i*~-acmordanee with lira requi~'emenln of Now York Town l.~w, Soelion 2fi7 (such ns *m addition Io thn exinllnff huihtinR, or now huildinff for innide slnra~ n.d di~qday {~f m~relmndlse and othi)r artifacts). Vote or thn Board: Aye::: Mesnrn. llnyen, Wilhm and tloehringer. Nays: Mr. villa (felt the relief requento{I not this particular location and due 1o tho size (ff the pnreel) Mr. Dinizio (chose to withhold Ili~: reasons). This resolution w:m duly (~IIAIR~AN Exhibit 6 ~.~if llln~' ('~,mrrt ~llrrrtrl>' with ,hi mnr~ thn, n,n (t) nlh~r ~lrh m~it. Fln~'h m~lt ~hnll hnvn n ~h~r n~nl.~ n, Iht nrrm~r~l .r rlr~l,,r~l t, hr nvnllnhln fnr ,~n ~ ~h'~l~h~ thnt o.~ (1) ~.rh m~lt tlln? ~flllll~rt dh'nctl~' wtth .n m.~n ~1~ (I) nlher ~1~11 .rill a.,I tight .n r~ld.~ fm'ilille~ ~hnll I,~ ndwrtl~e~ or enll~ ntt~ntl~n tn n bu~ln~ or n~ttvlty pnttd.ff of o.e (t} motor whlele wlthtn n p.hlte ptlvnt~ pnrEtnfi arco, b.t ~ot within ~ publte ~treet. ~ ()I'~N ~PA(~-- Any pflte~l or nre~ of l~ud or wnl.~r mttoym~nt or fnr th~ U~ n~d ~nJo~ent or own~r~ nnd npae~, provided thnt n.ch nren~ tony pnrktnff nnd other oreo, nf nny Roods, j~mk, OWNER ~ Inel.de~ the duly nuthorlxed nffent, attorney, p.rehn~er, devt~e, fldtletnry or nny other per,on hnvlnR vented or enntlnR~t Interest In the ~roperty In q.~.tlnn. I'AR~INV I.OT-- An m~rfneed ami Improved for the tempornry motor whtelem PARTIAL SELP-~ERVtOE OASoI,iNE SERVlOE STATION -- A g~oltu~ 8etvlcO ~n~lon prlmnHly for the ARTIVI,~ x l^ddnd 1-111-1~111) hy I,.I,. No. 100-1110. P~rpo~. The l~rl~o,~o el' tl,~ (Irno~nl ~unlnenn (M) Dl~rlct In ~o provide to nccnmmor~n~n tlse~ [hn~ b~neflt ~rom Inr~e ntlml)er~ of ~nvolvn chnrncter~sHcn erich nn henry trtlcklnff nn~ noise. ~ 100-101. 11~ tel{ulntlotl.~. In the Il l)intrlct, no building o~ premises nhnll b~ ~ed nnd nn braiding or pnr~ th~reo~ ~hnll be ~teeted or nlteted whleh In nrrnn~ed, Int~ndo~ or d~l~ed to b~ ttn~d, In whole or In pert, rnr nny l~nn exempt th~ rollowlnff: A. IAmended B.O-tOgg by I,.L. No. O-tnaol Permttt~d for those une~ permitted under ~b~ectt~n A(I) h~ren[, nr~ ~,~ldoet to ~lto ~l~n npptov~l hy the Pl~nnlnff Bonrd: (l) Any pormitted tlho ~et ~o~th In ~nd r~ff~lnt~d hy ~ IO0-~IA(~) ~d {~) o~ the Affrleul~urnl- (]nn~rvntt~n District. (2) Any p~rmltted ~se ~ torth In and reffulnt~d by § I no.2.qo § n,~4 gnrne~.~l,~rn'g~ nr~n tony ot~ly t~6 eonv~rt~l h~, (~) ()l;het t.ylm~ nf ndrllHnn~ ~h~ch enMil~et, [Wn § 100-~1. Ilnlfiht of fn,(m~, wall.,; flttd hermm IAm.mh~d "F~.c~m w.ll~ nr h~,'m, tony l~n 61'~le~ nt.1 mnhdnln~d, B, When 1omi,nj § 10fl-2~2. Corner Iof.m fl'onta~, and nn~ y~td of.h~t tl~ntt lhe ~rot~t ynt~ ~hnll ynrJn. ~ § 10.0-.q.~ S()tlTIlOI,I) (~.()I)E § 100-.':1.'1 § 100-,'t.'1. ^coerce*fy lmil¢llnR~. [Amended 4-10-1.000 By In the A~icultmnl C'.mmorvntlm~ District nad l,ow-l)onsity Rosld~ntinl R-fi0, R-120, R-20(1 nnd R-400 l)i~triets, neee~m~ry Imildin~ nnd structm'en nr other ncce~nnry unen ~hnll be lnentrfl in th~ rrqulred rear yard, md~.irct h~ tho fnllmvin~ rrqulremenfs: A. Such huildin~ shall not exceed eighteen (18) Der in hei~hL B. Setbacks. lAmendod 7-17-1990 By l,J,. No. 14-19901 2-~-1991 hy I,.l,. No. 2-19911 (1) {)n lr~ts c*mtainlng up tn twenty thm15aad (20,000) square feet, such buildings shall be set back no less than three (R) feet frmn any lot llne. (2) On lot5 containing more than twenty thnusand (20,000) square feet np to thirty-nine thousand nine lmndrnd ninety-nine (~9,00~) ~qunrn Cet, such fi'mn any lat Ibm. (~) On Iot~ contnlnln~ in nxc~ss of thirty-nine ttmusnnd nine tnmdred n~nety-nlne (~fl,ogfl) squnre feet up ~o seventy-nine thmlsm~d nine hundred ninnty-nine (79,999) ~quare feet, such Imildings shall he set back no less than ton (10) feet from nny lot line. (4) On lots contMnin~ in excess nf seventy-alee thmmand nine huadred ninety-nine (79,999) ~qunre feet, m~ch building~ ~hnll be ~et back no le*~ than twenty (20) feet frmn nay lot llno. (?In tlm cn~e of n waferfrnnt parcel, accessory huilding~ and structures may he located in ~he front yard, provided that such building~ and structures ~neet tim front-yard setback requirement~ n~ set forth hy fhi~ Code. IAd(led 12-22-1992 hy I,.I,. No. ~3-19921 ' · The worn to before me on rATE OF NEW Y6RK,~ CouNTY, age and reside ~ n, am over 18 ye~ .~ :~ exclusive prior'to the latest time designated by ihat service for o~ernight delivery. m to before me on-~ ~ 63 Semon Rood ~ Huntington, New York 11743 (' ~ Supervisor Main R~d ~ ~,Jth~, N~rk i 1971 Re: A~can ~mor~ Foun~lon ~888 Fifth Avenue / ~n~n~ N~York 11779 Dear ~s, - Jur,e 6, 1995 JUN 7 Igg:S I recently spent an enjoyable weekend at the Tank. Museum (American Armored Foundation Inc.) I had been there numerous times in the past. This particular weekend I was accompanied by my father ( Sergeant Thomas DaN, 11th Airborne Dlvtslon 1955 to 19,51 D.A,V.) And my three uncles ( 1 of which Is also a veteran, sergeant Ronald Daly 82nd Airborne DMslon 1959 to 1965) I was sac~ened to learn that the museum Is having trouble with the town, From my understanding of the situation It Is actually trouble with one particular n~lhbor that recently moved In. I can't for the life of me, think of one positive effect closing the museum will have. Has anyone at town hall even visited the museum? Can't you 'see the tlrne and effart that has been expended? If the museum disappears, what will remain? A vacant lot and factory building, next to the railroad tracks? In a time where public dollars are used across the country for veteran memorials - you have a museum that honors veterans from the civil war to the present day (as well as educates the p'Jbllc to the sacrifices made to protect our freedom] And what does ff cost you ? Zero. Just Imagine what could be il you embraced this museum, prote(.;ted it, helped ff grow. Wouldn't that. benefit your town? The museum asks for nothing, they Just wish to be allowed to remain as they have been for the pa:~ 1 $ years. !'his Is a plea for the survival of a beautiful thing. If there Is o good reason fox destroying o mans life work, I would really like to know wl~'~t it is. If there was something further I could do to Insure the sun4val of the museum. I would do It. (And I am not a resident of your townl) I have 2 young sons, I hope I ~ill be able to take them to see the Tank Museum in years to come. But that Is oil up to you. Watson's Rr~ S~udto 5 TEL N0,516 298-54?4 Feb 01,95 0:58 P.O1 MATTITUCK CHAMBER OF COMMERCE P.O. BOX 10SG MATTITUCK, LONG lEI.AND, N.Y. 11~52 January 31, I TO THE MEMBERS OF THE $OUTHOLD TO~(/N ZONING BOARD RE: THE ,AMERICAN ARMOMI~ED FOUNDATION Dear Sirs, Tthe Mattituck Chamber of Commerce wishes to convey our thoughts on the Zoning Variances proposed to you by the American Armoure¢l Foundation. The variances involve the fence, a memodal tower and the outdoor display. we in the Chamber feel that the American Armoured Foundation represents a respectable part of our nation's past. T~e museum also repre- sent~ a significant financial income to Mattituck and the entire North Fork. The patrons, who come from all over the world, r'lot, only visit the museum. but also our small town. Their income is ~tal to the buslnes~ community here in Mattituck. The Mattitucl( Chamber of Commerce requests that these variances be granted. Sincerely. Patrlcia & William Moore Presidents, Mattituck Chamber of Commerce NOTE FOR THE FILE RECORD February 17, 1995 RE: Resolution Adopted February 1, 1995 Appeals No. 4260, 4261 and 4262 NOTE: Please note the following information which is to clarify dissenting votes of the Board's February 1, 1995 decision: Clarification: Dissenting votes by Members Villa and Dinizio were without agreement to the originnl resolution, which was to mitigate as much as possible the concerns raised by the adjoining owner as written in the adopted resolution. Member Dini~io was not in favor of the museum and did not want his reasons entered in the reeord, while at the same time voted against the resolution for denial with mitigation references. Member Villa also voted against the resolution with the understanding that his reasons would be noted. (This update was entered to clarify any misunderstanding by readers of the February 1, 1995 resolution and split votes.) l.lnda Kowalski Board Clerk]Secretary BOARD OF APPEALS:TOWN OF SOUTHOLD In the Matter of the Application of WILLIAM F. GASSER and the AMERICAN ARMOURED TANK MUSEUM CONFIRMATION OF POSTING being duly sworn, depose and say: That on the day of January, 1995, I personally posted the property known as "640 Love Lane, Mattituck, NY" by placing the Town's official poster Notice on facing the road side of the propeYtY, 'and ti~t the poster has remained in place at least seven days prior to the date of the pubHe hearing (date of hearing noted thereon to be held February 1, 1995.) Dated: January ~ 1995. (signature) A Pre-CO was issued 8/20/81 for a storage building C- Zone . Applicants purchased property on September 3, 1981. Outdoor storage of tanks commenced. Amm~rettJ purchased property to the north in ©c7c ,5~r ] ~..~. Ammaretgt~pqrc~l.a~so zone~l ~8~n. dustrial, as well as surrouno±ng parcels. Lone: ulnaus~rlal up unui N, S, E and ~/ are zoned LI Industriai. Changed to LI Industrial in 1989. Town Board changed to HB Business (which permits museums in a building) in 1992, with conditions to mitigate museum activities and strueturos. Lot size: 32,017 sq. ft. Covered by Buiidings: 6600+- sq. £t. Percentage of Lot Covered: 21% HB permits up to 12,807 sq. ft., or 40% of Iot for bu±iding area. APPEALS BOARD MEMBERS Print 5738SSl V2R2M0 920925 GerardP. Goenr nger, Chairman Use~.lame. s u.~n?o, Jr: Robert A. Villa Richard C. Wilton 473889 SOUTHOLD NYSRPS ASSESSMENT INQUIRY S 81~1~[:1~ DMI~ f 'lgf I~'~'~ ~ HOOL P~OY~HN (]E F~0R~DS 140.-2-18 730 LOVE LA = OWNER & MAILING INFO ===I=MISC AMMIRATI FRANK J & WF IRS-SS 730 LOVE LANE I 1 MATTITUCK NY 11952 I BANK u wn : e 1 P.O. 8ox 1179 Southold. New York 11971 Fax (516) 765-1823 Teleph°ns~51'l~?) :765i$/~059/9 5 ROLL SEC TAXABLE TOTAL RES SITE TOTAL COM SITE ACCT NO 14 I .............. ASSESSMENT DATA ........... I **CURRENT** RES PERCENT ILAND 1,400 **TAXABLE** ITOTAL 7,100 COUNTY 7,100 0185700 **PRIOR** TOWN 7,100 I ILAND 1,400 SCHOOL 7,100 { ITOTAL jf-~-~7~100 =:DIMENSIONS ===1 ....... SALES INFORMA ..... ......................... ACRES .78 {BOOK 9899 SALE DA~E 10/01/85 ~,~ALE PRICE 165,000 {PAGE 00036 PR OWNER~G MACM~J~IiIAN ....... TOTAL EXEMPTIONS 0 ........... -~TOTAL SPECIAL DISTRICTS 4 ..... CODE AMOUNT PUT INIT TERN VLG NC OWN CODE UNITS PUT TYPE VALUE {FD030 IPK071 {WW020 ISW011 F3=NEXT EXEMPT/SPEC F6=GO TO INVENTORY F9=GO TO XREF Fi=NEXT PARCEL F4=PREV EXEMPT/SPEC 75.10- 03-010 F10=GO TO MENU A~C MATTmJCK LIO '~ -80 R-80 R'60 ~ A--C -LB/ Ms. Ruth Oliva Town Councilperson Town Hall Main Road Southold, New York 11971 ONGIONI & BORRELLI ATTORNEYS AT LAW 403 FRONT STREI[T , P.O.BOX 562 GREENPORT, NEW YORK 11944-0562 July 31, 1995 U~~/ Re: Ammirati v. Goehringer, et al Dear Ruth: It was with much dismay that I read an article in Sunday's Newsday with regard to the "tank museum" controversy involving my clients wherein you were quoted as stating that the Town had no intention of enforcing the ZBA decision to enable the tank museum's owner to find a relocation site. 1 can only assume that you were misquoted in the article, as I believe it would be a severe breach of your duty to all your constituents to favor one property owner over another. In fact, for an elected official to be advocating violation of the law without suitable enforcement is subject to judicial intervention. As you know, the "tank museum" has been in illegal operation since 1981. It has taken us more than seven years of very frustrating opposition before the Town Board and the Zoning Board of Appeals to garner even the slight relief that the ZBA finally granted on February 8, 1995. According to that decision, the museum's owners must realign the tanks now on display within a 14' x 185' strip along the southerly property line within six (6) months of the date of the order. Despite the fact that we have challenged that decision in the Supreme Court, it is not stayed and compliance is mandated within the next week. During the course of the hearings before the Zoning Board of Appeals, Mr. Goehringer on more than one occasion, stated on the record, that our misgivings about enforcement would not be the case this time. However, your statements to Newsday, if they are accurate, are yet another example of Southold Town's improper and unequal treatment of its residents. By copy of this letter to the Town Attorney and the Enforcement Officer of the Building Department l am notifying the Town that we expect enforcement of the ZBA decision of February 8, 1995. It is time that the Town of Southold enforced its own laws. What is government except a rule of law? Very truly yours, ONGIONi & BORRELLI clb/ns By: Carmela L. Borrelli cc: Laury Dowd, Esq. - Town Attorney Town Board Enforcement Officer - Building Department Zoning Board of Appeals Suffolk Times Frank & Diane Ammirati ammirati:violate.ltr APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Lydia A. Tortora BOARD OF APPEALS TOWN OF SOUTHOLD Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1809 July 19, 1995 Mrs. Karen A. Gasser American Armoured Foundation, Inc. 2383 Fifth Avenue Ronkol:Lkoma, NY 11779 Re: Your Letter of July 6, 1995 Dear bits. Gasser: Your Lnqulry letter dated July 6, 1995 was reviewed by the Members of the Bosrd of Appeals, and the Beard Members have taken the position that, under the circum-qtances, no action be taken. Therefore, varinnce determinntions #4260, 4261 and 4262 as filed on February 8, 1995, rernnln as each stands, (without prejudice). Very truly yours, BOARD OF APPEALS By: Gerard P. Goehrin~er Chnix~nnn 2~ $1h Avlmue Rof/m/mn~ N.Yo 11779 American Armoured Foundation, Inc. Mailing Adress 2383 5th Ave., Ronkonkoma, NY 11779 (516) 588-0033 Museum: Love Lane Mattituck, NY July 6, 1995 Southold Town Hall Mr. Gerard P. Goehringer, Zoning Board of Appeals P.O. Box 1179 Southold, N.Y. 11971 Chairman Attention: Mr. Gerard Goehringer, Chairman ZBA Dear Mr. Goehringer, Please consider this a formal request for an extension of time on the determination made by the Zoning Board of Appeals on February 8th, 1995. This determination requires the removal of 75% of the museum collection, that is being displayed at the Love Lane property know as the Tank Museum, by August 6th of this year. We feel this extension of time is necessary and not unrealistic due to the fact that there is a lawsuit pending concerning this determination and this requested extension will give us the opportunity to explore options that have come to our attention during discussions~ with various regulatory boards of the Town of Southold. I would like to thank you for your time and consideration in the matter of this requested extension and are in hopes that this extension will be granted. Sincerely, / · ~aren A. Gasser CC: Tom Wickham, Supervisor Ruth Oliva, Town Board member Lauren Dowd, Town Attorney Robert Kassner, Planning Board Gary Fish, Building Department Tank and Ordnance War Memorial Mu.eum DEPARTMENT OF PLANNING COUNTY OF SUFFOLK ROBERT J. GAFFNEY SUFFOLK COUNTY EXECUTIVE: STEPHEN M, JONES, A.I.C,P, FEB 2 4 ' DIRECTOR OF PLANNING Town of Southold Zoning Board of Appeals 53095 Main Road Southold, NY 11971 February22,1995 Applicant: William Gasser/Armoured Tank Museum Mun. File No.: 4260, 4261 & 4262 S.C.P.D. FileNo.: SD-95-1 Pursuant to the requirements of Sections A 14-14 to 23 of the Suffolk County Administrative Code, the above referenced application which has been submitted to the Suffolk County Planning Commission is considered to be a matter for local determination as there is no apparent significant county-wide or inter-community impact(s). A decision of local determination should not be construed as either an approval or disapproval. Comments: The outdoor storage of merchandise other than motorized vehicles appears inappropriate and unwarranted. Very truly yours, Stephen M. Jones Director of Planning GGN:mb S/s Gerald G. Newman Chief Planner APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Richard C. Wilton BOARD OF APPEALS TOWN OF SOUTHOLD Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1809 NOTE FOR THE FILE RECORD February 17, 1995 RE: Resolution Adopted February 1, 1995 Appeals No. 4260, 4261 and 4262 NOTE: Please note the following information which is to clarify dissenting votes of the Board's February 1, 1995 decision: Clarification: Dissenting votes by Members Villa and Dinizio were without agreement to the original resolution, which was to mitigate as much as possible the concerns raised by the adjoining owner as written in the adopted resolution. Member Dinizio was not in favor of the museum and did not want his reasons entered in the record, while at the same time voted against the resolution for denial with mitigation references. Member Villa also voted against the resolution with the understanding that his reasons would be noted. (This update was entered to clarify any misunderstanding by readers of the February 1, 1995 resolution and split votes. ) IJnda Kowalski Board Clerk/Secretary APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Richard C. Wilton Southold Town Hall 53095 Main Road P.O. Box 1179 Southotd, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1809 BOARD OF APPEALS TOWN OFSOUTHOLD 3 of 3 Pursuant to Article XIV of the Suffolk County Administrative Code, The Board of Appeals of the Town of Southold, Nm York, hereby refers the follcx~ing to the Suffolk County Planning Conmission: XX Variance from the Zoning Code, Article IX · Section 100-93 Variance from Determination of Southold Town Building Inspector __Special Exception, Article , Section Special Permit Appeal No: 4262 Applicant: William Gasser/Armoured Tank Museum Location of Affected Land: 640 Love Lane & s/s CR48, Mattituck, NY County Tax Map Item No.: lO00- 140-2-16 Within 500 feet of: __'Town or Village Boundary Line Body of Water (Bay, Sound Or Estuary) XX State or County Road, Parkway, Highway, Thruway Boundary of Existing or Proposed County, State or Federally Owned Land Boundary of Existing or Proposed County, State or Federal Park or other Recreation Area Existing or Proposed Right-of-Way of any Stream or Drainage Channel Owned by the County or for which the County has established Channel Lines; or __ Within One Mile of a Nuclear Power Plant __Within One Mile of an Airport Comments: Applicant is requesting 9~f~qxtx~x approval for outside stn~n~ nr display which is not permitted in the Hamlet-Business Zone Copies of Town file and related documents enclosed fo'~' your review. Dated: February 9, 1995 A.~.F. Slit Aw~u~ RmlkOld(mlll, N.Y. 11779 January 3, 1995 American Armoured Foundation, Inc. Mailing Adress 2383 5th Ave., Ronkonk0ma, NY 11779 (516) 588-0033 Museum: Love Lane Mattituck, NY Southold Town Hall Zoning Board of Appeals Southold, N.Y. 11971 Attention: Gerard P. Goehringer, Chairman RE: Mitigation measures. Dear Board of Appeals, As per fax dated December 19, 1994 please be advised of the following measures adopted by American Armoured Foundation, Inc. to meet the mitigation measures set down by the Board of Appeals to receive a SEQRA negative declaration: Drainage pans and oil absorption blankets: Ail vehicles that presently contain gas and oil have already had drip pans installed under them. The remaining drip pans and oil absorption blankets will all be in place within the maximum of 30 days from this meeting. These drip pans will be green rubbermaid type containers, as we felt these were the least obtrusive item that could be found to fit the intended job use. We also do not want the Museum to become an eye sore with so many drip pans around. Each pan will contain a weight to weigh these pans down so that they are not blown around the yard by the wind. The oil absorption blankets will be place under each drip pan. Daily checks: Please find attached a conformation letter showing that American Armoured Foundation has on staff a reliable, responsible and capable person that has and will continue to make daily checks of all display vehicles. As an environmentally safe and responsible organization, American Armoured Foundation, Inc. has no problems with adhering to the mitigation measures being set by this board and the museum will continue to take any and all measures to prevent any contagions from entering the ground. The museum has been working on a regular basis to maintain the vehicles in good condition and to exhibit them to the public in the best condition possible. Tank and Ordnance War Memorial Muaeum APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Richard C. Wilton BOARD OF APPEALS TOWN OF SOUTHOLD Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1809 NOTICE FOR POSTING Subject: Pending Variance Applications - William F. Gasser or the American Armoured Foundation, Inc. Location of Property: Els Love Lane and S/s CR 48, Mattituck. Zone District: Hamlet Business (HB) Attached is a Notice of Declaration under SEQRA as per Resolution adopted at a Regular Meeting of the Board of Appeals held on November 2, 1994. The Public Comment period is subject to the periods estabUshed in Part 617 of NYCRR and subject to the rules and regulations of the New York State Environmental Quality Review Act. Based upon this Negative Declaration as an Unlisted Action, SEQRA is now completed, and applicant shall be required to mitigate, as noted below, as well as any other requirements in the processing of the variance applications. For further information please contact the Office of the Board of Appeals, Gerard P. Goehringer, Chairman, M~in Road, Southold, New York 11971, or tel. 516-765-1809. Thank you. (Continued on next page) APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Richard C. Wilton BOARD OF APPEALS TOWN OF SOUTHOLD Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1809 NEGATIVE DECLARATION Per Action taken November 2, 1994 by the Southold Town Beard of Appeals Re: Pending Applications of WILLIAM GASSER Location of Property: Love Lane, Mattituck Appeals No. 4262, 4261 and 4260 SEQRA determination pertaining to property of WILLIAM GASSER at the S/s of C.R. 48 and the E/s of Love Lane, Mattituck, pertaining to pending applications under Appeals 4262, 4261 and 4260. The Board Members confirmed their recent inspections at the site and indicated that all their concerns were answered through the applicant's communications. It was noted, however, that mitigation measures were necessary to be taken, and agreed to a Negative Declaration with the mitigation measures incorporated therein. On motion by Chairman Goehringer, seconded by Member Dinizio, it was RESOLVED, to declare LEAD AGENCY status, and declare a NEGATIVE DECLARATION with the following mitigation measures incorporated therein, subject to the normal public comment period established under the SEQRA rules: 1. Drainage pans and off absorption blankets shall be placed under all vehicles such as under the transmission and engine areas, including active and well as inactive vehicles. 2. The owner is responsible for daffy checks of the vehicles and taking all measures necessary to prevent oil drippings, and maintain good condition of the vehicles. AYES: Messrs. Doyen, Goehringer, Dinizio and Wilton. (Member Villa was absent. ) This resolution was duly adopted. 23~3 5th A~egtu(~ RmlkmlkOma, N.Y. 11779 American Armoured Foundation, Inc. Mailing Adress 2383 5th Ave., Ronkonkoma, NY 11779 (516) 588-0033 Museum: Love Lane Mattituck, NY AMERICAN ARMOURED FOUNDATION, INC. PETITION We, the undersigned, being Southold Town residence and supporters of the tourist industry in this town do hereby petition the Town of Southold, Zoning Board of Appeals, to grant relief to the American Armoured Foundation, Inc. as follows: 1. Grant the variance that is before the Zoning Board of Appeals for the POW/MIA Memorial Tower property line setbacks. 2. Grant the variance that is before the Zonng Board of Appeals for the fence height restrictions. 3. Grant the variance that is before the Zoning Board of Appeals for the outside display of hist~acts~l~0~.~m_p~ortant part o f the museum' s ,exl'cbits.~ Tank and Ordnance War Memorial Museum ~ $~h Avenu~ Ronkonkoma, N.Y. 11779 American Armoured Foundation, Inc. Mailing Adress 2383 5th Ave., R onkonkoma, NY 11779 (516) 588-0033 Museum: Love Lane Mattituck, NY AMERICAN ARMOURED FOUNDATION, INC. PETITION We, the undersigned, being Southold Town residence and supporters of the tourist industry in this town do hereby petition the Town of Southold, Zoning Board of Appeals, to grant relief to the American Armoured Foundation, Inc. as follows: 1. Grant the variance that is before the Zoning Board of Appeals for the POW/MIA Memorial Tower property line setbacks. 2. Grant the variance that is before the Zonng Board of Appeals for the fence height restrictions. 3. Grant the variance that is before the Zoning Board of Appeals for the outside display of hir.~rical a.,~cts whic~e an important part of the museum's exhi~s. Tank and Ordnance War Memorial Museum A.&.F. 2383 aclh Avenue RmlkOnlCom~, N.Y. 11779 American Armoured Foundation, Inc. Mailing Adress 2383 5th Ave., R onkonkoma, NY 11778 (516) 588-0033 Museum: Love Lane Matt~tuck, NY AMERICAN ARMOURED FOUNDATION, INC. PETITION We, the undersigned, being Southold Town residence and supporters of the tourist industry in this town do hereby petition the Town of Southold, Zoning Board of Appeals, to grant relief to the American Armoured Foundation, Inc. as follows: 1. Grant the variance that is before the Zoning Board of Appeals for the POW/MIA Memorial Tower property line setbacks. 2. Grant the variance that is before the Zonng Board of Appeals for the fence height restrictions. 3. Grant the variance that is before the Zoning Board of Appeals for the outside display of historical which exhibits. Tank and Ordnance War Memorial Museum A.~.F. ~ SI~ A~enue Ronkoflkoma, N.Y. 11779 American rmoured Foundation, Inc. Mailing Adress 2383 5th Ave., R onkonkoma, NY 11779 (516) 588-0033 Museum: Love Lane Mattituck, NY AMERICAN ARMOURED FOUNDATION, INC. PETITION We, the undersigned, being Southold Town residence and supporters of the tourist industry in this town do hereby petition the Town of Southold, Zoning Board of Appeals, to grant relief to the American Armoured Foundation, Inc. as follows: 1. Grant the variance that is before the Zoning Board of Appeals for the POW/MIA Memorial Tower property line setbacks. 2. Grant the variance that is before the Zonng Board of Appeals for the fence height restrictions. 3. Grant the variance that is before the Zoning Board of Appeals for the outside display of historica! artif s w ' h ar ~ important part of the mu~seum~'s exhibits. Tank and Ordnance War Memorial Museum Aa~.F. Av~u~ N.Y. 11779 American Armoured Foundation, Inc. Mailing Adress 2383 5th Ave., R onkonkoma, NY 11779 (516) 588-0033 Museum: Love Lane Mattltuck, NY AMERICAN ARMOURED FOUNDATION, INC. PETITION We, the undersigned, being Southold Town residence and supporters of the tourist industry in this town do hereby petition the Town of Southold, Zoning Board of Appeals, to grant relief to the American Armoured Foundation, Inc. as follows: 1. Grant the variance that is before the Zoning Board of Appeals for the POW/MIA Memorial Tower property line setbacks. 2. Grant the variance that is before the Zonng Board of Appeals for the fence height restrictions. 3. Grant the variance that is before the Zoning Board of Appeals for the outside display of important exhibits. Itq52. Z A.~F. Slit Av~ftue Ronaonamna, N.Y. 11779 American Armoured Foundation, Inc. Mailing Adress 2383 5th Ave., R onkonkoma, NY 11779 (516) 588-0033 Museum: Love Lane Mattituck, NY AMERICAN ARMOURED FOUNDATION, INC. PETITION We, the undersigned, being Southold Town residence and supporters of the tourist industry in this town do hereby petition the Town of Southold, Zoning Board of Appeals, to grant relief to the American Armoured Foundation, Inc. as follows: 1. Grant the variance that is before the Zoning Board of Appeals for the POW/MIA Memorial Tower property line setbacks. 2. Grant the variance that is before the Zonng Board of Appeals for the fence height restrictions. 3. Grant the variance that is before the Zoning Board of Appeals for the outside display of historical which are t .Pm't of the museum's exhibits. Tank and Ordnance War Memorial Museum ~ SIh A~mflue Ronkofl~oma, N.Y. 11779 American Armoured Foundation, Inc. Mailing Adress 2383 5th Ave., Ronkonkoma, NY 11779 (516) 588-0033 Museum: Love Lane Mattituck, NY AMERICAN ARMOURED FOUNDATION, INC. PETITION We, the undersigned, being Southold Town residence and supporters of the tourist industry in this town do hereby petition the Town of Southold, Zoning Board of Appeals, to grant relief to the American Armoured Foundation, Inc. as follows: 1. Grant the variance that is before the Zoning Board of Appeals for the POW/MIA Memorial Tower property line setbacks. 2. Grant the variance that is before the Zonng Board of Appeals for the fence height restrictions. 3. Grant the variance that is before the Zoning Board of Appeals for the outside display of historical artifacts which are an important part of the museum's exhibits. > Tank and Ordnance War Memorial Museum 2313 5lit Avenue Rmlkonkoml, N.Y. 11779 American Armoured Foundation, Inc. Mailing Adress 2383 5th Ave., Ronkonkoma, NY 11779 (516) 588-0033 Museum: Love Lane Mattituck, NY AMERICAN ARMOURED FOUNDATION, INC. PETITION We, the undersigned, being Southold Town residence and supporters of the tourist industry in this town do hereby petition the Town of Southold, Zoning Board of Appeals, to grant relief to the American Armoured Foundation, Inc. as follows: 1. Grant the variance that is before the Zoning Board of Appeals for the POW/MIA Memorial Tower property line setbacks. 2. Grant the variance that is before the Zonng Board of Appeals for the fence height restrictions. h~storical artifacts which~.are an impo~ant part of the museum's exhibits. Grant the variance that is before the Zoning Board of Appeals for the outside display of Tank and Ordnance War Memorial Museum ~ Sth A~u~ Ronl~nl(oma, N.Y. 11779 American Armoured Foundation, Inc. Mailing Adress 2383 5th Ave., R onkonkoma, NY 11779 (516) 588-0033 Museum: Love Lane Mattituck, NY AMERICAN ARMOURED FOUNDATION, INC. PETITION We, the undersigned, being Southold Town residence and supporters of the tourist industry in this town do hereby petition the Town of Southold, Zoning Board of Appeals, to grant relief to the American Armoured Foundation, Inc. as follows: 1. Grant the variance that is before the Zoning Board of Appeals for the POW/MIA Memorial Tower property line setbacks. 2. Grant the variance that is before the Zonng Board of Appeals for the fence height restrictions. 3. Grant the variance that is before the Zoning Board of Appeals for the outside display of hist°rical ~s,~_h are an imp°rtant part °f the museum's exhibits'~,~ , ~ ~1 ~ ~ ~ "1 ,',~. ~ / _ /~ ',~. A.A.F. RMtlmnkoma, N.Y. 11779 American Armoured Foundation, Inc. Mailing Adress 2383 5th Ave., R onkonkoma, NY 11779 (516) 588-0033 Museum: Love Lane Mattituck, NY AMERICAN ARMOURED FOUNDATION, INC. PETITION We, the undersigned, being Southold Town residence and supporters of the tourist industry in this town do hereby petition the Town of Southold, Zoning Board of Appeals, to grant relief to the American Armoured Foundation, Inc. as follows: 1. Grant the variance that is before the Zoning Board of Appeals for the POW/MIA Memorial Tower property line setbacks. 2. Grant the variance that is before the Zonng Board of Appeals for the fence height restrictions. 3. Grant the variance that is before the Zoning Board of Appeals for the outside display of histo~cal attila,s v~ich Re an important part of the museum's exhibits. Tank and Ordnance War Memorial Muaeum A.~.F. sat A~enue R~fl~on~oltla, N.Y. 11779 American Armoured Foundation, Inc. Mailing Adress 2383 5th Ave., R onkonkoma, NY 11779 (516) 588-0033 Museum: Love Lane Mattituck, NY AMERICAN ARMOURED FOUNDATION, INC. PETITION We, the undersigned, being Southold Town residence and supporters of the tourist industry in this town do hereby petition the Town of Southold, Zoning Board of Appeals, to grant relief to the American Armoured Foundation, Inc. as follows: 1. Grant the variance that is before the Zoning Board of Appeals for the POW/MIA Memorial Tower property line setbacks. 2. Grant the variance that is before the Zonng Board of Appeals for the fence height restrictions. 3. Grant the variance that is before the Zoning Board of Appeals for the outside display of artifacts which are an important part of the museum's exhibits. Tank and Ordnance War Memorial Museum R(XW, MlkOm~ N.Y. 11779 American Armoured Foundation, Inc. Mailing Adress 2383 5th Ave., Ronkonkoma, NY 11779 (516) 588-0033 Museum: Love Lane Mattltuck, NY AMERICAN ARMOURED FOUNDATION, INC. PETITION We, the undersigned, being Southold Town residence and supporters of the tourist industry in this town do hereby petition the Town of Southold, Zoning Board of Appeals, to grant relief to the American Annoured Foundation, Inc. as follows: 1. Grant the variance that is before the Zoning Board of Appeals for the POW/MIA Memorial Tower property line setbacks. 2. Grant the variance that is before the Zonng Board of Appeals for the fence height restrictions. 3. Grant the variance that is before the Zoning Board of Appeals for the outside display of are an ' of the museum's exhibits. Tank and Ordnance War Memorial Museum LEGAL NOTICE NOTICE IS IIEREBY GIVEN, pregnant tO Section 267 Of tbe Town Law and the Code of the ToWn Of Southold, that the following public beating will be continued before the SOUTHOLD TOWN BOARD OF AppEAL~ at tbe Southold Town ltall, 53095 Main ROad; $outhold, New York 1197L on WRDNKSDAY, FEBRUARY 1. 199~, commencing si ~ tbe time specified below! 4. ~/=50 p.m. Comtnued Hearing on the Applications for Variances re- queste~l by Wit,LIAM F. GASSER concerning his proper~ known and Tank Mmeum, 640-t~ove Lane and the i,south side of County ROute B uslneff'Zo~'e' District; (Cl~Tover from 1/4/95) I For further information, please call 765-1809. Dated: janua~ 17, 1995. ' GERARD P. GOEHRINOER, CHAIRMAN, BOARD OF APPEALS TOWN OF SOUTHOLD g207-1TJI9 STATE OF N~,'~/YORK) ) ss: cOUNTY OF SUFFOLK ) in said County, being duly sworn, says that he/she is Principal Clerk of THE SUFFOLK TIMES, a Weekly Newspaper, published at Mattituck, In the Town of Southoid, County of Suffolk and State of New York, and that the Notice of which the annexed is a printed copy, has been regularly published in said Newspaper once each week for/_~_~ weeks l]t~cessively, comme~lci~g on the ! ~ day of .~~_~ 19~ CHRIS11NA VOl INSKI Piom~ PuMle, ~tat~ of NewYoHr principal Oerk No. 5004884 ,*~. Oualified in Suffolk County L~/~ Commission Expl/~A Novembe/23, 19~--~v _ '~ Notary Pnbtic Swore to before me this ~ APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Richard C. Wilton BOARD OF APPEALS TOWN OF SOUTHOLD Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1809 January 17, 1995 To: Gregory Blass, Esq. 120 C~-urt Street Riverhead, NY 11901 Carmella Borelli, Esq. Ongioni & Borelli 403 Front Street Greenport, NY 11944 Re: Appl. No. 4262, 4260, 4261 - WJJli~m F. Gasser Dear Mr. Blass and Ms. Borelli: This will confirm that the public hearing on the above applications was recessed by the Board of Appeals and will be reconvened on Wednesday, February 1, 1995 at 7:50 p.m. Very truly yours, IJnda Kowalski APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Richard C. Wilton BOARD OF APPEALS TOWN OF SOUTHOLD Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1809 January 17, 1995 Mr. William F. Gasser 2383 Fifth Avenue Ronkonkoma, NY 11779 Re: Appl. No. 4262- Variances Dear Mr. Gasser: Please find enclosed a copy of the Legal Notice published this week by our office. You will note that the public hearing on your applications will be continued on Wednesday, February 1, 1995 at the Southold Town Hall at 7:50 p.m. Also, you will find enclosed a Poster Notice which must be placed either on a stake and located in the front yard (road side) of the subject property, or placed on the front of the building (or fence, if appropriate) where it can be easily seen from the road. The poster must be conspicuously located at this time since the Board Members are planning to visit your area within the next several days. You should complete the attached Confirmation of Posting, sign, and return it to our office either by mail or hand delivery for our update and permanent file. Thank you. Very truly yours, Linda Kowalski Enclosures BOARD OF APPEALS:TOWN OF SOUTHOLD ................................... X In the Matter of the Application of WILLIAM F. GASSER and the AMERICAN ARMOURED TANK MUSEUM CONFIRMATION OF POSTING I, ., residing at being duly sworn, depose and say: That on the day of January, 1995, I personally posted the property known as "640 Love Lane, Mattituck, NY" by placing the Town's official poster Notice on facing the road side of the property, and that the poster has remained in place at least seven days prior to the date of the public hearing (date of hearing noted thereon to be held February 1, 1995.) Dated: January , 1995. (signature) APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Richard C. Wilton BOARD OF APPEALS TOWN OF SOUTHOLD Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1809 NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of $outhold, that the fo]lowing public hearing will be continued before the SOUTHOLD TOWN BOARD OF APPEALS at the Southold Town Hall, 53095 Main Road, Southold, New York 11971, on WEDNESDAY~FEBRUARY 1~ 1995 ~ commencing at the time specified below: 4. 7:50 p.m. Continued Hearing on the Applications for Variances requested by WILLIAM F. GASSER concerning his property known and referred to as the American Armoured Tank Museum, 640 Love Lane and the south side of County Route 48, Mattituck, NY located in the Hamlet-Business Zone District. (Carryover from 1/4/95) For further information, please call 765-1809. Dated: January 17, 1995. GERARD P. GOEHRINGER, CHAIRMAN, BOARD OF APPEALS TOWN OF SOUTHOLD MARIE ONGION[ CARMELA L. BORRELU ONGIONI & BORRELLI A?rORNEYS AT LAW 403 FRONT STREET · P.O.BOX 562 GREENPORT, NEW YORK I 1944~562 TEL (516) 477-2048 , FAX (516) 477-8919 288 PANTIGO ROAD EAST HAMPTON, NY 1 1937 TEL (516) 324-8282 FAX (516) 324-8283 Januap,.' 9. 1994 Mr. Gerard P. Gochringcr. Chairman Sou(hold Town Zoning Board of Appeals P. O. Box 1179 Sonlhold. Ncx~ York 11971 Re: Willialn Gasser - American Armoured Foundation Applications # 4260. 4261 and 4262 Dear Mr. Gochringer: In accordance x~ith the Board's request at lhe hear(ag held on the above applications on Wednesday. Jannan., 4. 1995 enclosed herewith please find copies of the following court decisions: I. Matter of Levine v. Korlnan - 586 N.Y.S 2d 620 (2d Dept. 1992) 2. Matter of Sasso Y. Osgood, el al .... App. Div.--- (4th Dept. 7/15/94) 3. Matter of Sasso v. Osgood. et al .... App. Div.--- (4th Dept. 9/30/94) 4. Sorrenti v. Siegel. 525 N.Y.S. 2d 667 (2d Dept. 1988) 5. Carlucci v. Board of Zoning Appeals .... App. Div.--- (2d Dept. 6/20/94) 6. Vilardi v. Roth, et al - 597 N.Y.S. 2d 86 (2d Dept. 1993) 7. Doyle v. Ams(er - 79 NY 2d 592 (1992) 8. Cowan v. Kern - 41 N.Y. 2d 591 In the Lev(ne case the Southamptou Zoning Board's denial of tile petitioner's application for a variancc was suslained by the court which noted: ( 1 ) the petitiouer failed to show "praclical difficulties" in order to establish entitlement to the variance: (2) thc variance was sought to accommodate a chosen aesthetic design: (3) thc petitioner's x~ere presumed to have knowledge of the zoning restrictions at the lime of purchase and dins the hardship was self-created. hr the Sasso case the Appellale DMsion reversed a Ioxxcr court (Supreme Court) decision which had sustained a ZBA determination (ha! granted an area variance because: (1) the ZBA's findings were not supported by the evidence provided by the applicant; (2) the ZBA's decision was based in part on the erroneons belief (bat Town Law 267-B provides a nlore lenient standard for granting an area variance than "practical difficulty". In the Sorrend case a ZBA decision denying an area variance xYas sustained b~, Ibc court because the petitioner had failed to demonstrate aay practical dill(cult(cs that would result from thc denial of his applicalion In the Carlucci case tile ZBA dec(stoa denyiug all area variance was sustained bccause: (1) the decision of the ZBA was supported by substanlial evidence; (2) the petitioner's difficult).' in complying xxilll the zoning regulation was self-created which is a significan! element mitigating against the application: (3) after finding thai thc hardship was self-created thc ZBA had no obligation Io weigh the expense of compliance in petitioner's favor. LONG ENVIRONMENTAL ~ ASSESSMENT FORM PARTS I, II AND III Project: William F. Gasser and the American Armoured Foundation, Inc. (Change of Zone) Love Lane Mattituck, New York Prepared For: Prepared By: Town Board of the Town of Southold Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Cramer, Voorhis & Associates, Inc. 54 North Country Road Miller Place, New York 11764 Date: September16,1992 CRAMER, VOORHIS, ~i~'~SOClATES E NVI R O N M ENTAI'.'~AI~D,:~G CONSULTANTS .~..---'= 'v;'//I LONG EAF PART III /"~k &!~SOCIATES CRAMER. VOO'RHiS E NVI RO N M ENTAI~,_AJ~D~I~ING CONSULTANTS · '~ ,¢#11 ~\\\ Page: 1 W}lliam Cusser Change or Zone Long £nvironmcntu{ Assessment Form LONG EAF PART I .. . - 617.21 Appendix A State Environmental Oualll¥ Review .. FULL ENVIRONMENTAL ASSESSMENT FORM Purpose: The iull i~.F ,s designed '.o help aPOI~cants and agenoeS determine. ~n an ordetN manner whether Frequenl- who determine Iy. there are aspects o~ a proleCt that Are ~ublect~ve or unmeasureable Ii ~s also understood that those ~ god,canoe may have htde or no iormal knowledge ol the environment or may be techmcall~ e~pert .. analysis In addmon, man~ who have ~no~ledge m one particular area may not be aware pi the broader concerns altectmg tha~ the determmauon the Question pi 5~gmi~cance The full [AF ~s ~ntended to prowde a method whereby applicants and agenoes can be assured ~ull [AF Components: The tull [AF ,s composed of three parts. Pad 1: pro~ides oblectwe data and reformation about a given protect and ~ts s~te By ,dentdy,ng bas< prolec' data. it assists a re~e~er ~n the ~nal~s~s that ~a~es place m Parts 2 and ~ Part 2: focuSeS on ,den[lf~mg ~he range pi pos~ hie impaCtS that may occur from a pfolec: or acUOn It provide guidance a~ to ~hether an ~mpaC~ ~s h~elv ~o be considered small to moderate or ~hether ,t ~s a potenbalF. large ~mpaCt The iorm also ,den6hes'nhether an impact can be m~t~gated or reduced Part 3: It any impact m Part 2 ,s ~dent~f~ed as potenUallyJarge, then Part ~ ~s used :o e~aluate whether or not th impac~ ~s actually ~mportan: DETERMINATION Of SiGNIFICANCE-Type 1 and Unlisted Action~g~p Identify the Portions pi EA~: completed [or this project: ~ Part t :~. Part 2 art 3 Upon tev,ew of the ,nformat,on recorded on th~s EAF IParts 1 and 2 and ~ ,f appropr*ateL and any other supporting ,nlofmabon. and consldenn~ bo~h the ma~,tude and ~mportance o{ each impact. ~t ,s reasonably determined by the lead a~encv tha~ A The proiect wdl no~ ~esult m any large and ~mpodant ~mpact~s) and. therefore, ts one which ha~e a s~gnshcan~ ~mpaCt on the envuonment, the~eiore ~ negative ded~atlon will be prepared. there wdJ not be a B Ahhou~h the prolect could ha~e a s~Bmficant eiiect on the env,fonment m PART ~ have been required effect for th~s Unhsted kct~on because the m,ti~at~on measures described thereiore ~ CONDITIONED ne~ti~e dedar~lion will be prepared.' on the en~,ronment, therefore ~ posili~e declaration will be p~eP~red' · & Conditioned ~e~at~e Oedarat~on ,s only valid {o~ Unbated WILLIAM F. GASSER AND THE AMERICAN ARMOURED FOUNDATION, INC. CHA~IGE OF zOHE-L! and RO to HB Town Board of the Town of Southold Name pi Lead -~genc¥ -..-- · ~-I~ OlI cer m Lead Agency P~mtor T'~peNameo Respons,u~ 5,gnature of Respon~b;e Oti.:er ,n Lead Agent'.' .... Oate S,~nJtufe'~t Preparer t1i d,:icrtnt from respon.',,ble oH., ' ,' ' Prepared by Prolec! Spo ~' - s ~'a'.e a ,.~nd,Canl edect · ' ' ,' , . st ~n determ,mnlwhether the achon~Oose~ ma . ' ' '~"~ T~S document ~s d~gned .o ass ,orm Pa , ~(.)~t~c .... n~ ple~ecomol~le~heenhr~esublecttoturtherverdiCatlon3ndpubhc:e~e~ pro~deanv~ddmonat ~nlOrmal,on yOU bel,e~e wdt be needed to coreplete P~5 of Zone - LI and RO to HE ~ American A~oured Foundation, Inc. and VHlliam F. Gasser Change Mattituc~ntv of Suffolk (SC1M 10~0/~/1~ Love Lane~ American Armoured Foundation Inc. J, DOMESS Love Lane Hattituck, 2383 Fifth Avenue ~ NY I 11952 BUSINESS TELEPHONE ~516' 54~33-6600 I NY ~ 11779 CITYzPO Ronkonkoma . _ .. ~...~ n~rF(ro to Hamlet ~ T~ON ' dustrial and Kesloenc/d~ v ..... / O~SCn,PT,?".oF~CJ _~ .... the zone from L~ght In ..... ~.ck (SCTM 1000/140/2.16}. 'A olicatlo~ ~u ~,,o.~ .... ~v at Love Lane ~n m~,~ _ ,~-k.. ~O'~ ~ "B~siness w~th respec~ ~o ~-~t--~~.~ ~C.~ ~'~,~ ~-~(L ~ , Please Complete Each Question-indicate N.A. it not applicable A. Si'e Oescr,pt 0 unde.e'oped areas Phvs,Cal setting ol overall prolect, bo~h de~eioped and a,~_~. 1 Present land use ~Urban ~lndustr=al ~r'~mmercmal ~Residenttattsuburb -- ~othe~ ~ 2 T6tal acreage of protect area 3~09~ ~s PRESENTLY AFTEE COMPLETIO: .~teadow or 8rushland ..%on.a~.cuhural} ~ acres Fore,ted ~ acres ¢Sr,cullutaillncludes orchards cropland pasture, etcl acres ~ _ act. Wetland(fre*h~ater or hdal as per ~rt~cles 24. 25 of ECL) .~ acres Un,eteta,ed tRock, earth or ,dl) .7S~" BI~t~x Roads. buddings ~nd o~he~ paved surtaces ~cres ~ ~'hzl ,s predominant sod lvpe{sl on prOleCt s~te) % of site a Sod drainage ~Nell drJ,ned 1~ % o( s,ie ]Moderately well drained ~ - ' - Poerl~ drained / 4 oi b It any a~r~cuhuraliand~'n~°l~ed how man~ acres of sod are classdiedw~thm ~od Stoup1 ~h~ou~h Land C1a~,~cat~on S~stvml ~e~ acres [See 1 NgCRR 3701' ~,~& ~/ s,te; =~es 4 ~re :he~e bedrock oulcroPPm~S on p~mect j %&hJ~ '~ dopth to hodrock~ -~ ...... 2 ti:,% or great~__ .b Is .J~.rolec: ~ub.'a~hallv conl~u,)u~ tO or contain a budding, s~te. or dlstnc~l~"led Re~,,tet~ ~ H,,:onc Pl~ce~/ =Ye~ ' l~ ~o~e(: .ub,:ar' .:H~ ,:Onl,~uou5 :o ~ ~e ,~:ed on the Re~,~;e~ Unknown 10 DO hunt,n~ ,,-;~,n~ Of ~hcll h~h,n~ oppor{un,{~e~ presently e~[ {n the PrOleCt area~ =~es ~o cliffs. ~unes. ot~er g~ological formaOons) 32 A~e there any un;que o~ unusual land to,ms on the prolec; s~e? be. - on the Slate or the Naoonal 13 is {he 1 4 Doe.~ 15' Streams w~thm Ot conl,guOus tO prolect area NoJ[le a Name of Stream and name of Rr. er to wh,ch ,t ,s tr,butar¥ '-les ~'~o It yes. explain Z~e~ XNo 16 lakes 17 18 19 20 Has the ~,'`e e~er been used for :he d,sposal pi sohd or hazardous wastes; Upon information and belief ponds, v. etland areas ',,.,th~n or contiguous {o prolec: area None a Name N/A b S~ze (in acres) N/.~. Is the s,te ser',.ed bv ex,sttng pubhc util,ues; EYes =No Electric al if 'Yes. does suf cen'` capac,tv e,,st to allow connect,on} ~Yes :NO ~K~"z~::~ ' bi It '~es. '*,II ~mpro,.ements be neces~ar', ~o allow connec'`~on; --Yes ~,'~o Is '.he *,re IDea:ed ~n an agncuhural d,~.inct certd~ed pu~uanl ~o Agrlcuhure and ".tatl,.ets law. Article 2~-AA Sectton 303 and 304t Z~es Is the s,te located ,n or subslant,aIK' cont~uOus '`o a Crmcal Enwronmental A~ea des,gnated pursuant to Article 8 ol '`he ECL and ~ %YCRR 617~ ~Yes X-_NO _--Yes 3~No Proiect Description Total contiguous acreage Dy. ned or controlled by p~ole¢: sponsor 32,109 sqft.,cx~< ~ 7-~ 7 C'~.¢ Cc:..~ . Pro~ec: acreage :o be de~eloped ['I/A acres m,:,all', _~N/A. . acres ulbmatel'. Prolec'` acreage Io rema,n undexeloped N/A . acres No physical change anticipated · length pi prolect. ,n mdes N/A !il appropnate) Il the prolec'. ~s an expansion. ,nd~ca:e percent pt expansion proposed N/A %. Number pt ort.streel parking spaces e~,stm~ ~ . proposed ~ '-.la'~mum ,.eh,cular trips generated per hour j~jjtllmal (upon complet,on of prolect); / -- ~.~ ~ Il res,denl,al ',,umber and '`'.pe of housing umtS N/A One Fam,l'. l;,.o Famd', ',4ulhple Famdv Condom,n,unl Inmall,. L:h,matel', , C),mens~ons ,n Ieetiof large~I proposed ~truc'`ure N/A he~gKL ..w~d'`h .leng'.h I L,near reel or frontage along a pubhc thoroughfare pro;ec'` w,II OCCupy, ,s) 50 . n and 60 ft 3 ~'/~ ~ ~ r a It yes. for what intended pucpose ,s the s~te being recla~med~ b '~'dl ~op~od be sloc~pded to~ reclamahon~ ~Yes ~No c W~II uDDer subsod be ~loc~DIted'lor ,eclamabon; ~Yes ~No 4 Ho~ man~ ~cres of vegetal,on (trees. shru~s ground covers) wdl be removed ~rom s~te~ NOlle acres any mature forest {o'.er 100 ¥'ears old) or other locall¥'~mportant vegetahon be remo'.ed by th~s D~olect'~ =Yes ~No s~ngle phase PrOleCt: Anbcipated penod of construcbon N/A months. (including demolition) 7 If multi-phased: N/A a Total number of phases anhopated (number). b Anticipated date of commencement phase 1 month c Approximate completion date of final phase month --No ',,ear. (including demolition) Is phase 1 functionall;' dependent on subsequent phases; EYes blasting occur dunng construction; ~Yes _-No N/A 8 9 Number of lObS generaled dunng construction N/A .. after prolect ~s complete 10 ".umber oi lobs eliminated by th~s prolec! oll V-.',[l prolect require relocation of any prolects or facilities? I-Wes ENo Ii yes. explain 12 Is surface hquid waste disposal invol',ed; ~Yes ~No a If ',es. red,cate type of '.,.aste (se~age. industrial, etc.) and amount b Name oi w-~:ter body ,nto v,h~ch effluent will be discharged 13 Is subsurface liqu,d waste d,sposa[ ,nvol,ed;. /~Yes ~No TyDeP'~"'-~ c. ,~ ~ /? f"f'=//.! ,t! '~' 1.1 W,II surface area of an e~stmg water body ,ncrease or decrease by proposal;. _-Yes ~No [~pla~n 1: 18 20 21 23 2.~ prolect or any port,on ol p~olect located ,n a 100 year flood plain;' .~Yes .,z~No Unkno~,m the prolect ~enerate sohd ',,,as[e; ,,~Yes ~No If yes. what is the amount per month tons I~ ~es w,II an ex~st,ng sohd ~aste fac,htr be used; . ~Yes ~NO Wdl any wastes nol ~o m~o a se~a~e d,soosal system or into a san,ta~ landfdP ~Yes the prolect revolve the d~spo~.al of ~ohd waste,~ ~Yes If yes. what ;5 the ant~opated rate o( d,sposal;. ,,",'ill W,II If ',es . md,cate type(s} '~No tons month prolect routinely produce odors (more than one hour per day)? ~_Yes prolect produce operating no~se exceeding the local ambient no,se [e','els~ ~Yes ~No =Yes It ~.ater suppl', is from ~ells ',n'd~cate Dumping capacity gallons, minute Total anl,c,pated ~ater usage per da, __ , gallons/day Minimal Ooe5 DrOleCt ,nvolve Local 51ate or Federal funding~ ~Yes Federal: De~t. of Defense donations are ~egularly made of tanks and 4 · ('..t'; 'ro:..n .',, C,tv To'.',.n Ydla~¢ PhJnn,n~ Board ,C,I', ro~.n Z,,mm~ '3oa~d C~t¥ County H~.akh Oepartmenl Other Local Other Reg,onal '~genc,e,; . State Agenoes Federal Agenoes -No "Yes _-No --Yes _--No :Yes _-Yes :No _-~'es Yes Suffolk County Planning Commission X C. Zoning and Planning Information 1 Site Plan Approval Does p,oposed achon ,nvolve a planmng or zomng deos,oM ~Yes It Yes. ,ndicate decls~on requ,ted X'-zomng amendmenl ~"zomn§ variance -speoal use permit ,", o _- subd,v,s,on /~-,,s,t e plan ,s the zonmg classd,cahon(sloi the s,te; l.~ghr T.a,,=r,-~al/De~i4L.~:~tia! Of fie2 What ~hc,,~[ ~s the m,~x,~r, um ;:)olen[~41 d,e',elopm~nt oj [he s,te ,[ de',eloDed as perm~Ited b~ the presenl - .uses as are permlcEeo, permxt~d by special exceptzon and accessory uses allowed by article XII, Section 100-140,Light Industrial Distr~ct. of rh~ qm,~h~]H Tmwn_Zoa_i~-Cod~ What ,s the proposed zoning of the s,te~ Hamlet Business (~ ~) (Exhibit A) What ,s the max,mum potential development pi the s~te ~i de,eloped as permit:ed by the proposed zon,ng~ Such uses as are permitted, permil~ed by special exception and accessory uses alloued by Article IX Section 100-90 H~ml~r R,,~n~ n~-,-;;~- ~F ~ c .... ~.~ ~ . ._ .................. Is ~he proposed action cons~s~em w,~h ~he recommended uses m adorned local ~and use ~lans ~es ~o~ Ha~et Bus,ness, Res~dent~a~ Off~ce~ L~ghc ~ndus~r~a~ 8 Is the proposed action compaBble '*',Ih adlo,mngsurround:ng ,and uses ~,,th,n a ', rode" X~_¥es ~No 9 Il Ihe propoqed act,on ~s the subd~:,s,on pi land. how many IoI~ are proposed~ ,'q/A a What ,s the minimum lot s,ze p~oposed; N/A D. Inlormational Delails avo,d them E. Verification ' certd, that ,he m,o,mahon px~.g~ed a.~,s u..~o ,he best./~! ms. knowledge ,. ~ , ;, . Ii Ih~ acllon is in Ihe Coaslal Area. and you are a slale agency, complele lhe Coaslal %ssessmenl torn belo~e proceeding w;Ih Ibis ~ssessmenl. William Gasser Change of Zone Long Environmental Assessment Form LONG EAF PART II CRAMER. VOORHI'S, ~';~SOCIATES E NV, R O N M E N TA~O:;~//L~q ~[~ G CONSULTANTS ,.' Part 2--PROJECT IMPACTS AND THEIR MAGNITUDE Responsibilil¥ of Lead Agency .General infoemation [Read Carefully) · In comple;~ng the torm the ,ev~e'..,er should be guided bs the quesbon Ha'.e my responses and de:ermmahons been reasonablef The rewewer ,s not expected to be an expert enwronmenlal analyst · Idenufwng that an impact wdl be potenhallv large (column 2) does not mean that ~t is also necessardv signific.~nt. Any large ~mpact must be evaluated in PART 3 todetermme s~gmficance Identffs'mg an ~mpact m column 2 s~mpl.. asks that ,t be looked at further · The Examples prowded are to assist the revle'a, er by showing types of ~mpacts and wherever possible the threshold o' magnitude that would trigger a response ~n column 2 The examples are generally applicable throughout the State ant for most s~tuat~ons But. for any specific prolect or s~te other examples and or Iov. er thresholds may be approouate for a Potential Large Impact response, thus requ,rmg evaluation in Part 3 · The ,mpacts of each prolect, on each s,te. m each locality, will vary Therefore. the examples are Hlustratp, e ant have been offered as guidance. They do not constitute an exhaustive list of impacts and thresholds to answer each question · The number of examples per question does not indicate the importance of each question · In identif,..ing ~mpacts. consider long term. short term and cumlative effects Instruclions (Read carefully) a Answer each of the 19 questions in PART 2 Answer Yes ~f there will be any ~mpact b Maybe answers should be considered as Yes answers If answering Yes to a quemon then check the appropriate box (column 1 or 2} to indicate the potential s~ze of the impact. If ,mpact threshold equals or exceeds an;, example provided, check column 2 If impact u, dl occur but threshoic ~s Iov, er than example, check column t d If rev~e~ser has doubl about s~ze of Ihe impact then cons,der the impact as potentially large and proceed to P.\Rt 5 e If a potent,ally large ~mpact checked in column 2 can be mitigated by change(s/in the protect to a small to moderate impact, also check the Yes box in column 3 A No response indicates that such a reduct,on ~s not poss,ble Th, must be explamed ~n Part 3 IMPACT ON LAND Will the proposed action result m a physical change to t~e prolect site? _~NO ~YES Examples that would applv to column 2 Any construct,c~ on slopes of 15% or greater. (15 foot use per 1~ foot of length), or ~here the general slopes m the protect area exceed I0% ConslFuCt)On O~ land where ~he depth ~o the wate~ ~ab)e ,s less than Construction of paved DarLing area ~or 1.~ o~ more veMcies Cons:ruction on land where ~edrock ~s exposed or generally within 3 ieel of ex~shng ground sunace Cons:ruction :hat wdl continue for mo~e ~han 1 ~ear or m~ol*e more than one ~hase or stage [~,:asat~on for re,rang ~urDoses that would remo~e more than 1.000 tons oi natural material 0 e. rock or so,l) per year Construction or expans,on of a sanitary landhll ConslrUCtlOn ,n a designated floodwa~ Other ~mpact~ ~11 there be an eifect to any umque or unusual land [orms found on the s,te.~ (i e. chits, dunes, geologrcal formations, etc )/~NO ----YES · Specdic land forms 1 2 3 Small to Potenlial Can Impact Be Moderate Large Mitigated By Impact Impact Project Change Z Z ZY'es Zxo _- - Z~es -'~o Z : Z~es Z'.o ' Z : ZYes Z'.o ? -- ZYes '--No IMPACT ON WATER WLII proposed action affect any water body designated as protected;' (L,'nder Amcles 15. 24. 25 of the Environmental Conse~at~on Law. ECL) EYES E~amples that would apply to column 2 · Oevelopable area of site contains a protected water body. · Oredgmg more than 100 cubic yards of matenal from channel of a protected stream · [xtension of utility distribution facilities through a protected water body · Construct,on m a designated freshwater or t,dal wetland. · Other impacts: 4 Will proposed action affect any non-protected existin.~ or new body of wated ~NO ~YES Examples 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 tmpacts 5 Will Proposed Action aftect surface or groundwater quality or quantity? ~NO EYES Examples that would apply to column 2 · Proposed Action wil[ require a discharge permit · Proposed Action requires use of a source of water that does not have approval to serve proposed (prolect) achon · Proposed Action requires water supply from wells with greater than 45 gallons per mmute pumpm8 capaoty · Construction or operation causing any contamination of a water supply system · Proposed Action wdl adversely alfect groundwater · bquid effluent w,II be conveyed oil the s~teto facdit~es which presently do not ex,st or have inadequate capaot¥ · Proposed ACbon would use water in excess of 20.000 gallons per day · ProposecJ Action ',~,11 liketv cause siltation or olher discharge into an ex~sting body of water to the e~tent that there wdl be an obvious visual contrast to natural conditions · Proposed Achon wdl require the storage pi petroleum or chemical products greater than 1,100 gallons · Proposed Acbon will allow residential uses m areas w~lhout water · Proposed Action locates commeroal and or mdustnal uses which may facdmes · Other ,mpacts 6 Wdl proposed action alter drainage flow or patterns. Or surface water runoif~ ~NO ~.YES £~amples that would apply to column 2 · Proposed Action would change flood '.',aler flows 7 m~ 2 3 S lo Potential Can Impact Be Moderate Large Mitigated By Impact Impact Project Change I~ ~ ?Yes ~ .r= Wes _-~o ~ ~ ~Yes ~ ~ ~Yes ~ ~ ~Yes ~NO ~ ~ ~Yes ~ ~ ~es ~No ~ ~ ~Y~ ~o :~. m ~Yes ~ ~ ~ Y es ~ ~No ~ ~ ~Yes ~No -- ~ ~Ves ~No · Proposed Achon may cause substanhal erosion. · Proposed ~ct~on ~s incompatible with ex~stmg drainage patterns · Proposed Achon w,lJ allow development m a designated floodway · Other ~mpacts: iMPACT ON AIR ~NO ~¥ES 7 Wdl proposed achon a[iect a~r quality~ [xamples that would apply to column 2 · Proposed Action wdl reduce 1.000 or more vehicle trips m any given hour. · Proposed Action will result m the ~ncinerat~on of more than 1 ton of refuse per hour · Emission rate pi total contaminants wdl exceed $ lbs per hour or a heat source producing more than 10 million BTU's per hour · 'Proposed action will alloy,' an ~ncrease in the amount of land committed to industrial use · Proposed act,on wdl allow an increase ~n the density pt industrial development within existing industrial areas · Other impacts IMPACT ON PLANTS AND ANIMALS 8 will Proposed Action affect any threatened or endan,,~ered ~NO ~YES species? ['~amples that ~,ould apply to column 2 · Reduction of one or more species Hsted on the New York or Federal list. using the s~te. over or near s~te or found on the s~te · Removal of any portion of a critScal or s~gnificant wddhfe habitat · Application of pesticide or herbicide more than twice a year. other than for agricultural purposes · Other.' impacts 9 Will Propo~,ed Act,on substanhally affect non-threatened or non-endangered speoes/ ~NO ~YE$ Examples that would apply Io column 2 · Proposed Achon ,,,.ould substant~al)y interfere wdh an;' resident or m~gratorv i~h, shellfish or wlldhie specms · Proposed Action requires the removal of more than 10 acres of mature forest (over 100 years of age) or other locally ~mportant vegetahon IMPACT ON AGRICULTURAL LAND RESOURCES 10 W,II the Propose~ Action affect agricultural land resources/ ~NO ,-_YES [~ampJes that would apply to column 2 land (includes cropland, havhelds, pasture, vineyard, orchard, etc ) · 2 3 Small to Potential Can Impact Be Moderate Large Mitigated By Impact Impact Project Change ml ~, :Yes re'No ~ ~ ZYes Zxo 8 · Construction actiwty would excavate or compact the sod profile of agricultural land · The proposed action would irreversibly convert more than 10 acres of agricultural land or. if located in an Agricultural District. more than 2.5 acres of agricultural land. · The proposed action would disrupt or prevent installation of agricultural land management systems (e g.. subsurface drain Iines. outlet ditches. strip cropping). Or create a need for such measures (eg cause a farm field to drain poorly due to increased runoff) · Other impacts: IMPACT ON AESTHETIC RESOURCES 11 Will proposed action affect aesthetic resources? ~NO ~YE5 (If necessary, use the Visual EAF Addendum in Section 617 21. Appendix 8 ) Examples that wouJd apply to column 2 · ' Proposed land uses. or proiect componenls obviously ddferent from or in sharp contrast to current surrounding land use patterns, v, hether man-made or natural · Proposed land uses. or project components wsible to users of aesthettc resources which wd[ eliminate or s~gnificandy reduce their enlovment of the aesthetic qualities of that resource, · Prolect components that will result in the elimination or significant screening of scemc vtews known to be important to the area · Other *mpacts IMPACT ON HISTORIC AND ARCHAEOLOGICAL RESOURCES 12 Wdl Proposed Action ~mpact any s,te or structure oi historic, pre- historic or paleontological ~mportance; ~NO r-WES [xamples that would appJy to column 2 · Proposed Action occurring wholly or part~aJJy within or substantially contig, uous to any facility or s~te listed on the State or Nabonal Register of historic places · Any ,mpact to an archaeological s,te or fossd bed located w~thin the prolect s~te · Proposed Action v,d] occur ,n an area designaled as sens~t~'.e for archaeological s,tes on :he NYS S~te In;entory · Other ,mpac:s IMPACT ON OPEN SPACE AND RECREATION 1.1 Will Proposed Action affect the quant,t', or quality of ex~s*.mg or future open spaces or recreational opportumt~es? E'~amples that would apply to column 2 ~NO ----YES · /he permanent foreclosure of a future recreational opportun,ty · ^ maior reduchon of an open space important to the commun,ty · Other impacts 9 I to Potential Can Impact Be Moderate Large Mitigated By Impact Impact Project Change [] ~ "-"Yes C~NO u- ~-Yes CNO ~ ~Yes ~ C 3Yes ~ ~ CYes ~ ~ Z~es ; IMPACT O~IB~,RAN SPORTATION 14 Will there be an effect t(~l~[tstlng transportation sysjems( ~NO ~YES E~amp[es that would apply to column 2 · Alterahon of present petterns Of movemem oi ~eople ~nd/or 8oods · P~oposed Acbon wdi result *n m~lor traHic p~obJems. · Other ~mpacts 'IMPACT ON ENERGY 15 ;¥dl proposed action affect the commumtv's sources of fuel or energy supplv~ ~NO ~YE$ [~amples that would apply to Column 2 · Proposed Action will cause a greater than 5% ~ncrease m the use of am, form of energy in the mumcipalit¥ · Proposed Action will require the creation or e~.Iension of an energy transmission or supply system to serve more than $0 single or two family residences or to serve a major commeroal or industrial use. · Other impacts NOISE AND OOOR iMPACTS 16 W,II there be objectionable odors, noise, or vibration as a result of the Proposed Action? ENO [xamples that would apply to column 2 · Blasting w~thm 1.500 feet of a hospital, school or other sens~twe facility · Odors w,II occur routinely (more than one hour per day) · Proposed Action will produce operatm§ no{se exceeding the local ambient noise levels for noise outside of structures · Proposed Achon will remove natural barriers that would act as a no~se screen s Other ~mpacts IMPACT ON PUBLIC HEALTH 17 Will Proposed Achon affect public health and saiet¥.' ~NO ~YES Examples that would apply to column 2 · Proposed Achon may cause a risk of e'~plos~on or release of hazardous substances (i e od. peshodes, chem,cals, rad~ahon, etc ),n the event of acodent or upset condihons, or there ma,. be a chrome Iow level d~scharge or emission · Proposed ACbon may result in the burial of "hazardous wastes" in any form (ie toxic, poisonous, h~ghl¥ reach,.e, radioacbve, irntahng. infect,ous, etc ) · Storage facd,hes for one mdlion or more gallons ot liqudied natural gas or other flammable liquids · Proposed action may result ~n the e~ca~ahon or other disturbance v~,thm 2.000 feet of a s~te used for the d~sposal of solid or hazardous · Other impacts 1 ~il~dtl I to fate Impact 2 Potential Large Impact Can hnpact B. Mitigated By Project Change ~Yes '-' ~-'Y es ~Yes "-Yes ~Nc ZYes ,~N,~ ~Yes ~Nc ~Yes 1o , I .- I~'dPACT ON GR~I'N AND CHARACTER OF COMMUNITY OR NEIGHBORHOOD 1"8 Will proposed action affect the character of the existing commumty? E~amples that would apply to column 2 · The permanent populatmn of the city. town or village ~n which the prolect is located is likely to grow by more than 5% · The municipal budget for capital expenditures or operahng services will increase by more than 5% per year as a result of this project. · Proposed action wd'l conflict ~*th officially adopted plans or goals · Proposed action will cause a change ~n the density o[ land use. · Proposed Action will replace or ehminate existing facilities, structures or areas of h;storic importance to the commumty. · Development will create a demand for additional community services (eg schools, police and fire. etc } · Proposed Action will set an ~mDortant precedent for future proiects · Proposed Action will create or eliminate employment · Other impacts: ~n1 2 3 all to Potential Can Impact Moderate Large Mitigaled I Impact Impact Project Cha, ~ ~ ~---,Yes ~--_; ~'~ ~ ~r'~ yes r-, ~ ~Yes ~ ~ ~ ~Yes ~ 19 Is :here. or ~s there likely to be. public controversy related potenhal adverse enwronmentaJ impacts? .~NO ~-Y/S If Any Action in Part 2 Is Identified as a Potential Large Impact or If You Cannot Determine the Magnitude of Impact, Proceed to Part 3 Part 3--EVALUATION OF THE IMPORTANCE OF IMPACTS Responslbilily of Lead Agency Part 3 must be prepared if one or more impact(s) is considered Io be potentially large, e',,en iF the impact(s) may b mitigated. Instructions Discuss,.the following for each ,mpact ~denhhed ~n Column 2 of Part 2: Briefly; describe the Impact 2 Descnbe (if applicable) how Ihe ~mpact could be mitigated or reduced to a small tO moderate impact bY pr~ec changers. 3 Based on the reformation a,.adab e. dec~de it ~t is reasonable to conclude :hat th~s ~mpact ~s important. To answer the question oJ tmporlance, consider · The probabdity ol the ,mpact occurnng · The duration Of the ~mpact · Its irre;'ers~bditv, including permanently lost resources of value · Whether the impact can or wdl be controlled · The reg,onal consequence of lhe ,mpact · Its potenhal di'..'ergence ~rom local needs and goals · Whether knov,.n object,ohs to the prolecl relate to th~s ~mpact (Continue on attachments) 11 COUNTY OF SUFFOLK SIATI (31: NEW Y(31,~I< ss: Tim' Kelly, being duly sworn, says that he is the Editor, of the TRAVELER-WATCHMAN, a public newspaper printed at Southold, in Suf- folk County; and that the notice of which the annexed is a printed copy, has been published in said Traveler-Watchman once each week for successively, cornmencing on the ....~.....~ day of .............. ~r;ff~ .................. 19..~.~. .................... ....................... NOTICE OF PUBLIC HEARINGS ~, NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, that the following public hear- ings will be held by the Southold Town Board of An- neals at th~ Southold Town Hall, 53095 Main Road, Southold, New York 11971,on 4. 1995. commencing at the times specified below: 1. 7:30 p.m. Appl. No. 4288, ~'ACK AND CHRIS GISMONDI. Request for a · Variance trader Al'title ill, Sec- tion 100-30A(1) for approval of the location of an accessory swimming pool, abdve ground as built, in a yard area other than the required rear yard, at premises known as 5655' Indian Neck Road, Peconic, NY; County Tax Map Parcel No. 1000-86-6-14. (Setback from property lines, when located in a yard area other than a rear yard. shall be determined by the Board of Appeals.) 2.7:35 p.m. Appl. No 4289- WILLIAM AND VERA SMITH. Request for a Vari- ance under Article IliA, Sec- tion 100-30A3 based upon the October 28, 1994 Notice of Disapproval issued by the Buildigg Inspector, for permis- sion to construct addition to existing building which will have an insufficient front yard setback. Location of Property: 980 Bayview Avenue, Matt/ruck, NY; County Tax Map Parcel No. 1000-.106-10- 17. 3.7:40 p.m. Appl. No 4290- WAREX TERMINALS CORP. Request for a Variance ' under Article X, Section 100- 101 C, ref. 100-33, ft~r permis- sion to locate a caaopy struc- ture over existing gasoline pumps in an area other than the rear yard. Location of Property: 9945 Main Road, Mattituck,, NY; County Tax Map Parcel No. 1000-142-1-27. 4. 7:45 p.m. Appl. No. 4287- NORTH FORK BEACH CONDOMINIUMS. (Can3'over from December 7~ 1994)· Request to install swim- ming pool at 52325 C.R. 48. Southold, NY; 1000-135.1-1- 43. Notary Public BARBARA A. SCHNEID£R NOTAR'/PUBLIC, State of New York I.!o. 480e~46 5. 7:50 p.m. Appl. No. 4286- JOEL AND MARGA- RET LAUBER (COREY CREEK VINEYARDS). (Carryover from December 7, 1994). Request for Special Ex- ception to establish winery Use for the sale of wiita produced from grapes grown on the ex- isting Vineyard where th~ pm: posed Winery is to be located. Location of Property: Consist- ing ora minimum often (10) acres of land referred to as 45470 Main Road, Southold, NY; County Tax Map No, 1000-75-6-9.7 and 9.6. 6. 8:00 p.m. AppL No. 4293- EDWARD J. MUNSON. Request for a Vari- ance under Arlicle IliA, Sec- tion 100-30A.3 based upon the December 7, 1994 Notice of Disapproval issued by the Building Inspector for permis- sion to construct addition to dwelling which will have an in- sufficient sideyard setback at less than the required 15 feet. and total side yards at less than the required 25 feet. Location of Property 1545 Oaklawn Avenue~ Southold. NY: County Tax Map Parcel No. 1000-70-3-5. Containing 10,400 sq. ft. of land area. 7. 8:05 p.m. Appl. No. 4292- JAY AND, MARY THOMSON. Request for a Variance under Article IliA. Section 100-30A.3 based upon the November 30. 1994 Notice of Disapproval issued by the Building Inspector for permm- sion [o construct addition to existing dwelling which will exceed the maximum lot cov- erage limitations. Location of Property: 695 Bayshore Road. Greenport, NY; Countb Tax Map Parcel No. 1000-53 -6-14. JAMES M. AND ELAINE O'KEEFE· Request for a Spe- cial Exception under Article IBA Section 100-30B to estab- lish Bed and Breakfast use as an accessory incidental to the applicant's single-family resi- dence and ownership of dwell- ing located at 54300 C.R. 48, Southold. NY; County Tax Map Parcel No 1000-52-3-1 Zone Disirict: R-40 Low-Den- sity Residential 9-I 1.8:15 p.m. Application for Variances requested by _WILLIAM F. GASSER con- coming his property known and referred to as the American Armored Tank Museum, 640 Love Lane and the south side of County Route 48, Mattitoek, NY; County Tax Map Parcel No. 1000-140-2-16 located in the Hamlet Business Zone Dis- trict, which requests are noted as follows: 9.. Appl. No, 4260- Request for Variance under Article IX, Section 100-91C(1) besed upon the July I2, 1994 Notice of Disapproval issued by the Building Inspector for the placement of accessory tower structure which is required to be located in a rear yard with a setback as per Section 100- 33B(2) at five feet fi`om the property line; 10. Appl. No. 4261 - Request for Variance under Article XXIII, Section 100-231A based upon the July 12, 1994 Notice of Disapproval for the height of the fence which ex- cess the required height limi- tationl I 1. Appl No. 4262- Request for Variance under Article IX, Section 100-93 based upon the .July 12, 1994.I~o~.c~ of Disap- proval forthe 'e~ ~ rllqnIa~ which is not permit- ted in this Hamlet-Busmess Zone Dislxict. The Board of Appeal0 will at said time and pla~o hear any and all per~ons or repre~enta. fives des/ring to be heard in file above maRers. Written eom- m~nr~ may also be submitted prior to die conclusion of the subject h~aring. Each h~aring will not sram before the times designated above. If you wish m review ally of the above files or would llke to request more information, please do not besi- rote to call 765-1809 or visit our office. Dated: December 16,1994 BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS OERARD p. GOEHRINGER, CHAIR. MAN By: Linda Kowaiski 1X-12/22/94 ) COUNTY OF SUFFOLK ) Pfln~ CI~ of T~ ~ ~M~, a W~My N~a~, pub~ at Ma~m~, In ~e T~ of ~u~ld, ~nW ~ S~olk ~d S~te of N~ Y~, ~d that ~e Notice of w~ch the ~nexed is a p~n~d ~py, ~ ~en ~ly publ~ed In ~d Newspaper once each week for ~ wee~ ~v~vely, ~[~ on ~e ~ day of Nora CHRISTINA VOUNSKI ~ No. 5004884 Notary PubHc $. 4§ * 05' O0 "W. cycLone 187. WILLIAM E GASSER LONG ISLAND RAIL ROAD ZONING DISTRICT C-I AREA =34,578 SQ.FT. OWNERS: FRANK ~ DIANE AMMIRAT' MAP OF PROPERTY FRAN~( 8. DIANE AMMIRAT! PI~ANN! NG'-BO~AR D T6W~N OF SO~THOLD S [IEFOI':K~C. OIANTY 8outhold, N.Y. 11~?:1. (516) 765-1938 November 20, 1985 Mr. Frank Ammirati 730 Love Lane P.O. Box 288 Mattituck, NY 11952 Re: Site Plan for Frank and Diane Ammirati Dear Mr. Ammirati: The following action was taken by the Southold Town Planning Board, Monday, November 18, 1985. RESOLVED that the Southold Town Planning Board forward the following comments to the Board of Appeals regarding the site plan for Frank and Diane Ammirati: The Planning Board has no objection to this proposal for conversion of an existing three-family house to a take out food and catering business with a dwelling use. The Board noted that there would be no adverse impact to the neighborhood and there would be buffering along the residential property. If you have any questions, please don't hesitate to contact our office. Very truly yours, NETT ORLOWSKI, JR. , CHAIRMAN SOUTHOLD TOWN PLANNING BOARD Board of Appeals By Diane M.Schultze, Secretary TOWN OF SOUTHOLD PROPERTY RECORD CARD OWNER STREET -~(-~ (7) VILLAGE DIST. SUB. LOT FORMER OWNER ~ ~ ' ' ACR. ' '---RES~,'* S~S. VL. FARM COMM. CB. MICS. Mkt. Volue ~ND IMP. TOTAL DATE R~ARKS AGE BUILDING CONDITION N~ NOR~L BELOW ABOVE FA~ Acre Value Per Value ~' .. Acre : Tillable FRONTAGE ON WATER ~eadowland '. DEPTH ~ouse Plot ::; BULKH~D , J