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Home My WebLink About4091 APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCO'Fr L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 NOTICE OF HEARINGS NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the following matters will be held for public hearings before the SOUTHOLD TOWN BOARD OF APPEALS at the Southold Town Hall, 53095 Main Road, Southold, New York 11971, on THURSDAY, MAY 7, 1992 commencing at the times specified below: 1. 7:34 p.m. .Appl. No. 4102 - ROBERT AND ELEONORE CAHILL. This is an Appeal of the April 22, 1992 Notice of Disapproval by the Building Inspector for a Variance to the Zoning Ordinance, Article III-A, Section 100-30A.3 for permission to construct deck addition with an insufficient front yard setback from the easterly property line (along Cedar Lane, a private road). Location of Property: 515 East Gillette Drive, East Marion; County Tax Map District 1000, Section 38, Block 4, Lot 12; also referred to as Lot 69 on the "Map of Marion Manor" filed with the Suffolk County Clerk as Map No. 2038. The subject premises is nonconforming as to lot area in this R-40 Zone District. Page 2 - Legal Notim Hearings for May 7,w1992 'Southold Town Board of Appeals ~. 7:37 p.m. Appl. No. 4098 - TONY AND MARIA KOSTOULAS. This is an Appeal for a Variance to the Zoning Ordinance, Article XXIII, Section 100-239.4 for approval of deck extension (at or near ground level) and fence with an insufficent setback from the L.I. Sound bluff line. Location of Property: 1035 Aquaview Avenue, East Marion, NY; County Tax Map Parcel No. 1000- 21-2-13. This property is nonconforming as to total lot area in this R-40 Zone DiStrict. 3. 7:40 p.m. Appl. No. 4103 - WARREN AND ELLEN HUFE (FUTURE SCREW MACHINE PRODUCTS, INC.). This is an Appeal for a Variance to the Zoning Ordinance, Article VIII, Section 100-82 (and Article XXIV, Section 100-242A) for permission to construct addition which will increase the degree of nonconformance in the northerly side yard setback. The setback from the northerly property line is less than the required 20 feet. Location of Property: 41155 C.R. 48 (and the westerly side of Kenny's Road), Southold, NY; County Tax Map Parcel No. 1000-59-7-33. This.property is nonconforming as to total lot area in this Limited-Business (LB) Zone District. 4. 7:45 p.m. Appl. No. 4100 - THOMAS J. McCARTHY [Contract Vendee) {Owners: Frank Majeski and Others}. This is an Appeal for a Variance to the Zoning Ordinance, Article IIIA, Section 100-30A.3 for approval of insufficient lot area, width and depth of parcels proposed in this four-lot minor subdivision, each Page 3 Legal .Hearings for May 7, 1992 Southold Town Board of Appeals with a preexisting dwelling. Location of Property: 1270 Fourth Street and 305 King Street, New Suffolk, NY; County Tax Map Parcel No. 1000-117-7-8. This property is zoned R-40. 5. 7:55 p.m. Appl. No. 4037 - METRO/808 REAL~"f CORP. (Continued from the April 2, 1992 hearing). Location of Property: Corner of the Northerly Side of Main Road (Route 25) and the Westerly Side of Depot Lane, Cutchogue, Town of Southold; County Tax Map Parcel No. 1000-102-5-26. 6. 8:05 p.m. Appl. No. 4080 - GEORGE AND SUE TSAVARIS. This is an Appeal for a Variance to the Zoning Ordinance, Article XXIII, Section 100-239.4 for approval of location of accessory satellite (antenna) dish structure with a.setback at approximately 37 feet from the bluff line. The requirement for all structure under Section 100-239.4 is 100 feet from the Long Island Sound bluff. Location of Property: 2170 The Strand Way, East Marion, NY; Pebble Beach Farms Filed Map No. 6266, Lot 111; County Tax Map Parcel No. 1000-30-2-53. 7. 8:15 p.m. Appl. No. 4091 - EUGENE M. LACOLLA. Variance to the Zoning Ordinance, Article III, Section 100-31 A & B, requesting permission to change use of a portion of the subject premises, from residential to non-residential. Location of Property: North Side of Main Road (State Route 25), at Arshamomoque near Greenport, (abutting properties of Hollister's Page 4 - Legal Not~J .Hearings for May 7,v1992 Southold Town Board of Appeals Restaurant, Mill Creek Liquors, The Pottery Place, etc.); County Tax Map Parcel Nos. 1000-56-4-24 & 19. The Board of Appeals will at said time and place hear any and all persons or representatives desiring to be heard in the above matters. Written comments may also be submitted prior to the conclusion of the subject hearing. Each hearing will not start before the times designated above. For more information, please call 765-1809. Dated: April 24, 1992. BY ORDER OF ~E SOUTHOLD TOWN BOAP~) OF APPEALS GERARD P. GOEHRINGER CHAIRMAN By Linda Kowalski Copies to the following on 4/27/92: Mr. and Mrs. Robert Cahill, 35 Greenwood Place, Valley Stream, NY 11581 Mr. and Mrs. Tony Kostoulas, 221 - 148th St., Whitestone, NY 11357 Mr. Robert T. Bayley, A.I.A., P.O. Box 59~, East Marion 11939 Mr. and Mrs. Warren Hufe, 41155 Route 48, Southold, NY 11971 Mr. Thomas J. McCarthy, Box 1266, Southold, NY 11971 Allen M. Smith, Esq., 737 Roanoke Avenue, Box 1240, Riverhead, NY 11901 (Attorney for Metro) Permit Research & Acquisition Co., Inc., 1108 Route 110, Farmingdale, NY 11735 Mr. and Mrs. George Tsavaris, 2170 The Strand, P.O. Box 345, East Marion 11939 Mr. and Mrs. Edward S. Kondak (as requested - oppos.) 2060 The Strand, East Marion 11939 Charles R. Cuddy, Esq., P.O. Box 1547, 180 Old Country Road, Riverhead, NY 11901 (Attorney for LaColla) L.I. Traveler-Watchman, Inc. (fax transmission) Times-Review (fax transmission) Individual Files and Board Members Bulletin Board (in Lobby) Building Department Planning Board APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Telephone (51.6) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTT L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1.179 Southold, New York 1.1971 Fax (516) 765-1823 Telephone (516) 765-1800 NOTICE OF HEARINGS NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the following matters will be held for public hearings before the SOUTHOLD TOWN BOARD OF APPEALS at the Southold Town Hall, 53095 Main Road, Southold, New York 11971, on TUESDAY, JUNE 30, 1992 commencing at the times specified below: 7:32 p.m. Appl. No. 4100 - Reconvened from May 7, 1992. Matter of the Application of THOMAS J. McCARTHY. Variance to the Zoning Ordinance, Article IIIA, Section 100-30A.3 for approval of insufficient lot area, width and depth of parcels proposed in this four-lot minor subdivision, each with a preexisting dwelling. Location of Property: 1270 Fourth Street and 305 King Street, New Suffolk, NY; County Tax Map Parcel No. 1000-117-7-8. This property is zoned R-40. 7:55 p.m. Appl. No. 4091 - EUGENE M. LACOLLA. Variance to the Zoning Ordinance, Article III, Section 100-31 A & B, requesting permission to change use of a portion of the subject premises, from residential to non-residential. Location of Property: North Side of Main Road (State Route 25), at Arshamomoque near Greenport, (abutting properties of Hollister's Restaurant, Mill Creek Liquors, The Pottery Place, etc.); County Tax Map Parcel Nos. 1000-56-4-24 & 19 (combined as one lot in common ownership). The Board of Appeals will at the above-noted time and place hear any and all persons or representatives desiring to be heard in the above matters. Written comments may also be submitted prior to the conclusion of the subject hearing. Each hearing will not start before the times designated above. For more information, please call 765-1809. Dated: June 15, 1992. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN By Linda Kowalski (End of Publication) Copies to the following on 6/15/92: L.I. Traveler-Watchman, Inc. (by fax transmission) Times-Review, Inc. Mr. Thomas J. McCarthy, Box 1266, Charles R. Cuddy, Esq., Box 1570, Riverhead, NY 11901 Southold, NY 11971 180 Old Country Road, Copies placed in individual files Copies to individual Board Members Posted on Town Clerk (Lobby) Bulletin Board 6/15/92 -2- APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD NOTICE OF HEARING SCOTT L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the following matters will be held for public hearings before the SOUTHOLD TOWN BOARD OF APPEALS at the Southold Town Hall, 53095 Main Road, Southold, New York 11971, on WEDNESDAY, JULY 29, 1992 commencing at the following times: 7:32 p.m. Appl. No. 4118 - GLADYS J. MILNE. Variance to the Zoning Ordinance, Article XXIV, Section 100-244B, and Article XXIII, Section 100-239.4B for permission to construct deck addition with insufficient side yard setback, insufficient setback from existing bulkhead, than 20% of the code limitation. 240 Knoll Circle, East Marion; and with lot coverage at more Location of Property: County Tax Map District 1000, Section 37, Block 5, Lot 15; Gardiners Bay Estates Lot No. 31. 7:37 p.m. Appl. No. 4115 - STEPHEN AND ELLA SCHMIDT. Variance to the Zoning Ordinance, Article XXIV, Section 100-244B for permission to construct deck addition with an insufficient rear yard setback at 340 Bay Haven Lane, Southold, "Map of Bay Haven" Lot No. 27; County Tax Map District 1000, Section 088, Block 04, Lot 24. Page 2 - Legal Notice .Hearings for July 29, 1992 Southold Town Board of Appeals 7:40 p.m. Appl. No. 4023 - CELLULAR TELEPHONE CO. d/b/a METRO ONE. This is an Appeal of the March 14, 1991 Notice of Disapproval issued by the Building Inspector for an Interpretation under Article XXIII, Section 100-230 concerning a proposed 104 ft. height of a monopole structure for radio transmission, and in the alternative, appellant requests a variance from the height restriction. Location of Property: (%415) Westerly side of Elijah's Lane and the Northerly Side of the Main Road (NYS Route 25), Cutchogue, NY; also shown on Planning Board subdivision-approved map of May 15, 1990; property now or formerly of William J. Baxter and Others; County Tax Map Parcel ID No. 1000-108-4-part of 11. 7:50 p.m. Appl. No. 4022SE - CELLULAR TELEPHONE CO. d/b/a METRO ONE. Request for Special Exception approval under Article VIII, Section 100-81B(1) and Article III, Section 100-31B(6) for an unmanned telecommunications building in an existing concrete block building and construction of a monopole radio tower with antenna for transmitting and receiving radio signals to provide cellular telephone services. Location of Property: (#415) Westerly side of Elijah's Lane and the Northerly Side of the Main Road (NYS Route 25), Cutchogue, NY; also shown on Planning Board subdivision-approved map of May 15, 1990; property now or formerly of William J. Baxter and Others; County Tax Map Parcel ID No. 1000-108-4-part of 11. 8:00 p.m. Appl. No. 4116 - LINDA TAGGART. This is an Appeal of the March 13, 1992 Notice of Disapproval issued by the Page 3 - Legal Notice · Hearings for July 29, 1992 Southold Town Board of Appeals Building Inspector under Article XIV, Section 100-142 and Article XXIII, Section 100-239.4B for approval or recognition of lot with a substandard size of 15,285 sq. ft., lot width (frontage) along the Main Road 76.46 feet, and lot depth 125.0 feet. At the time of transfer of title, the property was located in the B-Light Business Zone. Today, the property is located in the Light Industrial (LI) Zone District. Location of Property: 68320 Main Road, Greenport; Map of Peconic Bay .Estates Lot Nos. 185 and 186; County Tax Map Parcel ID No. 1000-53-2-2. 8:15 p.m. Appl. No. 4117SE - LINDA TAGGART. Request for a Special Exception under Article XIII, Section 100-131B, as referenced from Article XIV, Section 100-141B for permission to establish retail gift shop in this Light Industrial (LI) Zone District. Location of Property: 68320 Main Road, Greenport; Map of Peconic Bay Estates Lot Nos. 185 and 186; County Tax Map Parcel ID No. 1000-53-2-2. 8:25 p.m. Appl. No. 4120 - WILLIAM GOODALE AND MATTITUCK AUTO CENTER, INC. Variance to the Zoning Ordinance, Article XXI, Section 100-212B for relief from the front yard landscaping provisions of the zoning code. Location of Property: 7655 NYS Route 25 (Main Road), Laurel, near Mattituck, NY; County Tax Map Parcel No. 1000-122-06-30.1 (previously 30). 8:30 p.m. Appl. No. 4119SE - RICHARD GOODALE AND MATTITUCK AUTO CENTER, INC. (Tenant). Special Exception to the Zoning Ordinance, Article X, Section 100-101B(12) for a permit Page 4 - Legal Notice Hearings for July 29, 1992 Southold Town Board of Appeals authorizing: (a) a new car sales establishment; (b) an establishment of an accessory use incidental to the proposed new car sales establishment for the sale and/or lease of used vehicles; (c) outside display of vehicles, (d) accessory office use incidental to the new principal use as a new car sales establishment. Location of Property: 7655 Main Road (NYS Route 25), Laurel, near Mattituck, NY: County Tax Map Parcel No. 1000-122-06-30.1 (prev. 30). ~~i 8:45 P'm' (Reconvened fr°m June 30, 1992) Appl. No. 4091- ~ II~ m ~ ~. Variance to the Zoning Ordinance, Article II, Section 100-31A and B, requesting permission to change use of a portion of the subject premises, from residential to non-residential. Location of Property: Location of Property.- North Side of Main Road (State Route 25), at,Arshamomoque near Greenport, (abutting properties of Hollister s Restaurant, Mill reek Liquors, The Pottery Place, etc.); County Tax Map Parcel ~os. 1000-56-4-24 and 19. 9:00 p.m. Appl. No. 4072 - Appl. No. 4072 - VARUJAN AND LINDA ARSLANYAN. Appeal of the November 26, 1991 Notice of Disapproval of the Building Inspector for a Variance to the Zoning Ordinance, Article XXIII, Section 100-239.4A and Article XXIV, Section 100-244B, or Article III, Section 100-32, for permission to construct swimming pool and deck addition with insufficient sideyard(s) and with insufficient setback from sound bluff/bank along the Long Island Sound. Location of Property: 54455 (North Side) of County Road 48, Greenport; Page 5 - Legal Notlce Hearings for July 29, 1992 Southold Town Board of Appeals County Tax Map Parcel No. 1000-52-1-8. The Board of Appeals will at the above time and place hear any and all persons or representatives desiring to be heard concerning these applications. Written comments may also be submitted prior to the conclusion of the subject hearing. Each hearing will not start before the times designated above. For more information, please call 765-1809. Dated: July 14, 1992. GEP3%RD P. GOEHRINGER CHAIPdVU~N By Linda Kowalski FORM NO. 3 TOWN OF SOUTHOLD BUILDING DEPARTMENT TO~VN CLERK'S OFFICE SOUTHOLD, N.Y. NOTICE OF DISAPPROVAL TO ~.~,~....~...~ ...... .~'~A.. ...~-~ .~.x...~ ~.~ 7. ..................... · .~..:..~..~.-~....~.5.....,.:~.,..~ .... PLEASETAKENOTICEthatyourapplicationdated ...,..~..o~..~,....~. ....... Location of Property h~s~ Ho ..... .'.'~...0~.... ~ ~--. .....-~ ...... . .~....a)-3~-~...~..~. · .~- Jtreet j t J ..... County Tax Map No. 1000 Section .~ ~, ~,o Block ~1, ~ .................. ~ ...... Lot . ~.1 ..... ~ .... Subdivision ................. Filed Map No. r ............... Lot No .................. · ~..~ .~.~.,.~...~-~.~...~..~.~.~...~...%i~....t..~ .... ~ ..... ~ .............. Buzlding Inspector RV 1/80 RICilVED MAR 05 TOWN OF SOUTHOLD, NEW YORK APPEAL FROM DECISION OF BUILDING INSPECTOR ?/ APPEAL NO. ~ DATE ............. TO T~E ZONING BOARD OF API~ALS, TOWN OF SOUTHOLD, N. Y. 1, (W~e) .... .E.g.g~ n~,--Lv]^--L~. ~o ].]-~. ................. of .......... .40.3...fi 1.e,0~.r.e,..L0.~e. ............................... Name of Appellant Street and Number ..................... .B.?.~.p.,o.,l:t. .............................................................. .N..e..~....Y.o...r.k. ......... HEREBY APPEAL TO Municipality State THE ZONING BOARD OF APPEALS FROM THE DECISION OF THE BUILDING INSPECTOR ON APPLICATION FOR PERMIT NO ..................................... DATED ...................................................... WHEREBY THE BUILDING INSPECTOR DENIED TO (x) ( ) ( ) Nome of Applicant for permit of 403 G]enmore Lane Bayport,. New .Y.o.~k. Street and Number Municipality State PERMIT TO USE PERMIT FOR OCCUPANCY 1. LOCATION OF THE PROPERTY ......... .R..o..u..t..~....2.~.,...~.0.g.ogj~9.],.c~ ........................................................ Street /Hamlet J Use District on Zgning Map District 1000 Section 56 Block 4 Lot 19 &.24 . .................................................. , ............ .~urren: O~ner Eugene /4. LaC°]la, et al. Map No. Lot No. Prior Owner JosePh ^. LaColl0 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 III Section 100-31 A & B 3. TYPE OF APPEAL Appeal is made herewith for (please check appropriate box) (x) A VARIANCE to the Zoning Ordinance or Zoning Map ( ) A VARIANCE due to lack of access (State of New York Town Law Chap. 62 Cons. Laws Art. 16 Sec. 280A Subsection 3 () 4. PREVIOUS APPEAL A previous appeal X~xoe) (has not) been made with respect to this decision of the Building Inspector or with respect to this property. Such appeal was ( ) request for a special permit I ) request for a variance and was made in Appea! No ................................. Dated ............................. , ........................................ REASON FOR APPEAL ( ) A Variance to Section 280A Subsection 3 (X) A Variance to the Zoning Ordinance ( ) is requested for the reason that the property cannot be used as zoned. Applicant requests existing uses be extended, or in the alternat]ve that business use as in the Genera] business (B) district be permitted on the upland acreage limited to who]esa]e businesses, warehouses, contractors' businesses, office buildings, repair shops and retail sales. Form (Continue on other side) REASON FOR APPEAL Continued 1. STRICT APPLICATION OF THE ORDINANCE would produce practical difftcultie~ or unneces- sary HARDSHIP because the parcel cannot be sold for residential use, as zoned, and it will not produce a reasonable yield ..if its use is restridlY6~-t'0 those uses permitted by the existing zoning regulations. 2. The hardship created is UNIQUE and is not shared by all prope~ies alike in the immediate vicinity of this propeHy and in this use district because of its configuration, location and the fact that inability to use the property for permitted uses under the Zoning Code effectively confiscates the property. 3. The Variance would observe the spirit of the Ordinance and WOULD NOT CHANGE THE CHARACTER OF THE DIS-TP, ICT because business uses presently exist at the site and a% nearby parcels. STATE OF NEW YORK ) ) ss COUNTY OF ) Sworn to this ............ ~.- ...................... day OWNER SEAS. ~4.TOWN ~ REC:O!I. ~ D CARD · ~ LOT $ W LAND VL FARM COMM. CB. MICS. Mkt. Value IMP, TOTAL DATE REA&~RKS AGE NEW [ NORMAL FARM 0 BUILDING CONDITION BELOW ABOVE 0 WATER Exten~i~n Extension Extension Porch Breezeway Garage Patio Total COLOR TRIM x~d~tion Baserfie~t Ext. Walls Fire Place T~eRoof Recreation ROom Dormer Floors Interior Finish Heet Rooms 1st Floor Rooms 2nd Floor Driveway TOWN OF SOUTHOLD RECORD CARD ~-~ ~'~ ' r ; J~ . DIST. SUB. LOT ' ~i /2'v "~ · "~' '~. . . _ / ".. ., . ,,. . , r,~.c/1 z~,.,~ , ~FA~ Acm ~lue Per V~I~ ~ ; ' ' ~ FR~A~ ~ WA~R M. Bldg. Extension ,.Extension Extension Parch Breezeway Garage Patio Foundation Basement ~xt, Walls Place ype Roof Dormer Bath F~oors Interior Finish Heat Rooms Ist Floor Rooms 2nd '_~OC~ __.~-r~_~.__ ~ TOWN, OF SOUTHOLD PROPERTY RECORD CARD OWNER STREET ~. 3 ~ ~':~'~' VILLAGE DIST. SUB. LOT ACR. J S W ~PE OF BUILDING RES, S~$. VL FARM CO~, CB. MI~. Mkt. ~ND IMP. TOTAL DATE R~RKS Tillable F~ONTA~E ON WATE~ W~la~ FRONTAGE ON ~OAD M~ DEPTH H~ Flor aULKHBD July 29, 1992 Regular Meeting -4- Board of Appeals THIS HEARING WAS POSTPONED AS REQUESTED BY APPLICANT'S ATTORNEY UNTIL FURTHER NOTICE: Appl. No. 4091 - EUGENE M. LACOLLA. Variance to the Zoning Ordinance, Article III, Section 100-31A and B, requesting permission to change use of a portion of the subject premises, from residential to non-residential. Location of Property: Location of Property: North Side of Main Road (State Route 25), at Arshamomoque near Greenport, (abutting properties of Hollister's Restaurant, Mill Creek Liquors, The Pottery Place, etc.); County Tax Map Parcel Nos. 1000-56-4-24 and 19. THIS HEARING WAS POSTPONED AS REQUESTED BY APPLICANT'S ATTORNEY UNTIL FURTHER NOTICE: Appl. No. 4072 - Appl. No. 4072 - VARUJAN AND LINDA ARSLANYAN. Appeal of the November 26, 1991 Notice of Disapproval of the Building Inspect~rJfor a Variance to the Zoning Ordinance, Article XXIII, Section 100-239.4A and Article XXIV, Section 100-244B, or Article III, Section 100-32, for permission to construct swimming pool and deck addition with insufficient sideyard(s) and with insufficient setback from sound bluff/bank along the Long Island Sound. Location of Property: 54455 (North Side) of County Road 48, Greenport; County Tax Map Parcel No. 1000-52-1-8. End of Public Hearings. DELIBERATIONS/DECISIONS: (Continued on next page): ,%. SURROGATE 'S COURT, SUFFOLK COUNTY. i ~ ~'~ ............ ' ...... X /i~ In the .Matter of the Transfer Tax Appraisal of the Estate of :. JOSEPH A. LaCOLLA, : Deceased. STATE OF NEW YO~K ) 4 ) ss: COUNTY 0F SUFFOLK ) : AFFIDAVIT ~2~6-A-1960 J. EDMARD DICKINSON being duly sworn, deposes and says that he resides at Southold, in the Town of Southold, County of Suffolk and State of New York, and is a duly licensed real estate broker maintaining an office for the transaction of real e state business at Southold, New York; that he has bought and sold real estate generally in the Town of Southold and knows the value of real estate in said Town, and that he knows the following des- cribed real property: ALL that tract or parcel of land situate, lying and being at Arshamomoque, in the Town of Southold, County of Suffolk and State of New York, bounded North by land of the Long Island Railroad Company; Easterly partly by the Main Boa,! sn,i psptl2 hy lsnd 0£ Van Cure; ~th hy the Main ~oad and Westerly partly by Mill Creek and partly by land of Genevieve Richard. Con- taining by estimation 18 acres, be the same more or less. (Assessed valuation $7600.) That he knows the value of said real property and that the fair market value of the same at the date of the death of JOSEPH A. LaCOLLA, to wit: January 19, 1960, was $30,000;00. That deponent has no interest, direct or indirect, in the above estate or in the property hereby appraised. ~/($. ~dWard Dickinson) Subscribed and sworn before me~ this day of November,~. NItary P~bi{c, M~)NICA ~. ~ALLAGHER Notau Public,Stat, of New York No. 52.13629;A'~, Suffolk County APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTT L. HARRIS Supervisor. 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: Mr. Bennett Orlowski, Jr., Chairman Southold Town Planning Board Office.of the Board of Appeals July 16, 1992 1000-56-4-24 Pending Appeal for Variance - LaColla Pursuant to your office's request of today, we have printed the draft Transcript of the June 30, 1992 hearing statements for your convenience. (Since this copy is in draft form, it may need some minor corrections - expected next week When Lorraine returns.) Also attached is a map showing generally the reduced upland areas (60,000+- sq. ft.) under consideration. The areas to remain open would contain approximately 26 acres (as a minimum). I t Southold Town oard of Appeals ACTION OF THE ZONING BOARD OF APPEALS Appeal No. 3352 Application Dated April 9, 1985 (Public Hearing June 27, 1985) TO: Mrs. Genevieve Richards [Appellant(s)] Main Road S0uth0]d, NY ]197] At a Meeting of the Zoning Board of Appeals held on July ]8, ]985, the above appeal was considered, and the action indicated below was taken on your [ ] Request for Variance Due to Lack of Access to Property New York Town Law, Section 280-a [ ] Request for Special Exception under the Zoning Ordinance Article , Section [×] Request for Variance to the Zoning Ordinance Article VI , Section 100-60 [ ] Request for Application of GENEVIEVE RICHARDS, 64155 Main Road, Greenport, NY, for a Variance to the Zoning Ordinance, Article VI, Section 100-60 for permission to use proposed building in this "B-Light" Business Zoning District for heavy-equipment storage. Location of Property: 64155 Main Road, Greenport, NY; County Tax Map Parcel No. 1000-56-04-20. WHEREAS, a public hearing was held and concluded on June 27, 1985, in the Matter of the Application of GENEVIEVE RICHARDS; and WHEREAS, thJ board members have considered all testimony and documentation entered into the record in this matter, and it is noted that no opposition has beenreceived; and WHEREAS, the board members are familiar with the property, its present use and the area in question; and WHEREAS, the board made the following findings of fact: l. By this application, applicant seeks permission to construct a 36' by 70' storage building for heavy-equipment storage in this "B-Light" Business Zoning District. 2. The premises in question is located on the north side of the Main (State) Road, Greenport, NY, and is known and identified on the Suffolk County Tax Maps as District 1000, Section 56, Block 04, part of Lot 20; and Lot #2 on a subdivision map of the Southold Town Planni'ng Board approved June 22, 1981. 3. The parcel is question contains a total area of 31,181 sq. ft. (to tie line), with frontage along the Main Road of 258.84 feet and is presently improved with a single garage-storage building which is shown on survey dated January 31, 1985, to be set back 8 feet from the westerly property line, 23 feet from the northerly property line, and 29 feet from the easterly property line located along a private 25' right-of-way. 4. Article VI, Section 100-60 does not list "heavy-equipment storage" as a permitted use in the "B-Light" Business Zoning District, although garage structures for storage of materials (CONTINUED ON PAGE TWO) DATED: August 1, 1985. Form ZB4 (rev. 12/81) CHAIRMAN, SOUTHOLD TOWN ZONING BOARD OF APPEALS ~ FL Pag~ 2 - Appeal No. 3352 Matter of GENEVIEVE RICHARDS Decision Rendered July 18, 1985 and parking of vehicles has been permitted accessory with and customarily incidental to any permicted ~se and not involving separate business. 5. For the record, it is noted that simultaneously herewith, an application has been made and conditionally approved under Application No. 3353 for a Special ~,:ception. In considering this application, the board ~grees that the use of the building as proposed for inside heavy-equipment storage: (1) will not substantially change the (~haracter of this business district; (2) will not be adverse to ,~djoining properties; (3) will not cause a substantial effect of increased population density which may be produced on ~vailable governmental facilities; (4) in view of the manner in which the difficulty arose and in consideration of a~l of the above factors, the interests of justice will be served by allowing the variance, as noted below. Accordingly, on motion by Mr~ Grigonis, seconded by Mr. Goehringer, it was RESOLVED, that the relief requested under Appeal Ho. 3352 in the Matter of the Application of GENEVIEVE RiCilARDS for permission to use proposed 36' by 70' building for inside storage of heavy equipment, BE AND HEREBY IS APPROVED SUBJECT TO THE FOLLOWING CONDITIONS: 1. That the proposed building be no closer than eight feet to the closest west property line (rather than five feet); 2. There be no placement of garage doors on the highway side; 3. There be no obtrusive lighting which is adverse to .traffic or neighbors in the area; 4~ There be$o sto~age of any equipmen~ or materials in the frontyard are~; 5. The building not to exceed 20' in height; 6. The building must comply with Ch. 46, Floodplain ment Law, if applicable; Manage- 7. There shall be fencing of the rearyard area with 6' high stockade fence (not to exceed 6'6" in height); 8. Existing building must remain accessory to the proposed new building, and shall not be used for living or habitable quarters. 9. In the event the right of the applicant to use the existing right-of-way of the Estate of Joseph A. LaColla (along the easterly property line) is terminated, this use variance shall become null and void, unless an alternative access to i]he rear oF the buildings is arranged by the abutting property owners, and approved by the Town Board of Appeals. Vote of the Board: Ayes: Messrs. Goehringer, Douglass and Sawicki. This resolution was adopted of all the members. Grigonis, Doyen, by unanimous vote lk BUll. DING ~----~ONE MAP 0~- TOI~IN O? SOl. ITl-lOgO ~ofb°~ ~oWN TOWN OF SOUTHOLD OPEN SPACE COMMITTEE Town Hall Southold, NY 11971 765-1801 August 2, 1991 Charles R. Cuddy, Esq. 180 Old Country Rd. Riverhead, NY 11901 Estate of Joseph A. LaColla, Jr. Tax Map #1000-56-4-19 Dear Mr. Cuddy: Thank you for delivering a map of this parcel to me together with an outline of a proposal the Estate would consider appropriate in offering this property to the Town for purchase as open space. As I related, the Town Board has authorized a consolidation of the Farmland Preservation and Open Space Committees into a single Land Preservation Committee. We are presently implementing this legislation and I expect the new entity to be in place later this month. In the interim, as we agreed, I have asked Valerie Scopaz, the Town Planner, to give me an informal analysis of the parcel so that we may have some rational basis to discuss the potential yield of these 30 acres, much of which consists of water and wet- lands. I have asked Ms. Scopaz for such comments in several cases before asking the Board to appropriate money for an appraisal. As soon as I hear from her, I will contact you. FAR:jw Sincerely, Frederick A. Ross cc - Valerie Scopaz August 6, 1991 Mr. Frederick A. Ross Town of Southo].d ()pen Space Commi*tee Town Hail Southold, NY 11971 Rm~a+e of Joseph A. LaColla, Jr. Tax Map ,1000-56-4-19 Dear tlr. Ross= I appreciaeed ehe oDl~ortuni~y ~o meet proposal to convey ~he LaColla parcel Committee. with you to tile Lanai discuss the Pre,~ervat ion While I have no objection to hav|ng the 'Pown Planner consider ~he potential yield for Chis parcel, I 0o tilth eo emphaslze ~'hat the offer made wa~ in c<,mprom~se of +he cla[~ ~hae ehe I,aCollas would have against ehe To~,,n wi~h ref~r,mce ~o ~he presont zoning of *he parcel. I have discussed this guen*ton ~,ith soiae ~own Board members and have pointed ou~ ~ha~ ~he zon]ng on a t~.~o acre basis appears conflsca~cr}'. The aleerna~Jves nva{lable ~o ehe I.aCo].Jam are to seek an amen<lease to eho ZOllJng ordJni~nce, to ob~aln a use variance or eo offer ~he parcel eo ~'he 'Fow~ for a f~ir consideraeion. I~ %~as suggeseed ~ha+ w9 proceed in ehls la+~er vein. For the sake of having the Town consider +he purchase we are willing to have the parcel considered as it is presently zoned. 'Po this end we have stated the price the estate woule] be willing to accept. However, whatever ~he y./eld of the parcel ! wish ~o advise that the price also includes consideration for the fact that the Town has effectively zoned the parcel so that i~ will have the lowest or least value per acre as compared to the adjoining marine district parcel or the general or limited business use which the land along the Main Road should enjoy. ! merely wish to bring the foregoing to your attention and also to the attention of Valerie Scopaz so that the Town will have before it all of the facts to be considered in arriving at a realistic determination as to the value of the parcel. Very truly yours, c~c/pc Charles R. Cuddy · TOWN OF SOUTHOLD LAND PRESERVATION COMMITTEE Town Hall Southold, NY 11971 Tel. 765-1801 August 28, 1991 Charles R. Cuddy, Esq. 180 Old Country Rd. P.O. Box 15~17 Riverhead, NY 11901 Re: Estate of Joseph A. LaColla, Jr. Tax Map #1000-56-4-19 Dear Mr. Cuddy: Thank you for your letter of August 6th concerning our discussion of this property and our agreement that it would be reviewed informally by Valerie Scopaz. I now understand that this review, and possible submission for Land Preservation purchase, is one of three courses you have advised your clients that they may pursue. Your clients waive none of their rights to petition or sue for other forms of relief. Ms. Scopaz and I discussed the parcel last week. We are familia~' with the land, having walked the Arshamomaque area when I first assumed responsibilities for Open Space, As you and your clients know, it is very difficult to determine the potential yield for development because of the imprecise boundaries of the tidal wetlands and the freshwater pond as shown on the survey by Van Tuyl, which you left with me. This diffi- culty is compounded by the current state and local restrictions on develop- ment within 75' of wetlands, After careful consideration, Ms. Scopaz does not believe she could make a yield estimate on the information now available. Let me suggest an approach which might interest your clients. There is a procedure for determining yield on problem parcels, such as this, which involves joint review by the Trustees and the Planning Board. While the cost of this analysi.s typically is borne by the applicant as part of a sub- division application, the review of the wetland's line only could be arranged with the Trust~es, perhaps for just the consultant's review, fee. In either -2- case, the results would give my committee and the LaCollas a realistic basis for discussion. Unfortunately, this procedure requires your clients to bear the cost of updating the survey and having the wetland~s line flagged, but this is an expense they might be willing to incur in view of the value of the realty and the fact that the survey would be available for purposes other than this procedure. Thanks again for bringing this to our attention. FAR:jw Sincerely, Frederick A. Ross, Chairman Southold Town Land Preservation Committee T0%VN OF SOUTHOLD LAND PRESERVATION COMMITTEE Town Hall Southold, NY 11971 Tel. 765-1801 October 22, 1991 Charles R. Cuddy, Esq. 180 Old Country Road P.O. Box 1547 Riverhead, NY 11901 Re: Estate of Joseph A. LaColla, 3r. Tax Map #1000-54-4-19 Dear Mr. Cuddy: At the meeting of the Land Preservation Committee on October 10, 3991, I reported our informal efforts to evaluate this parcel from the standpoint of potential yield. I explained that your clients were reluctant to bear the cost of an up-to-date survey which might form the basis for a joint review with the Trustees and Planning Boa~-d, as proposed in my letter of August 28, 1991. In view of the limited funds presently available for open space purchase, because of the commitment made by the Town Board to Fort Corchaug, the committee directed me to advise you .that we must discontinue our consider- ation of the LaColla application. Thank you again for submitting this acreage. FAR:jw Sincerely, Frederick A. Ross, Chairman Southold Town Land Preservation Committee October 30, 1991 Mr. Frederick A. Ross, Chairman Southold Town Land Preservation Committee Southold Town }{all Post Office Box 1179 Southold, New York 11971 Re, County Tax Map Parcel No. 1000-5~-4-19~ Estate of Joseph A. LaColla, Jr. Dear Mr. Ross~ X was both surprised and disappointed by your letter of Octo- ber 22, 1991. I believe ! had indicated that my client was willing to have his parcel flagged to determine the extent of the wetlands, but without some possible indication from the Town (e.g., proposing a per acre dollar value) he was reluctant to bear the total cost of the $10,000 survey. Your letter suggests that, in the alternative, not delivering an updated survey or the unavailability of funds caused by the commitment to Fort Corchaug caused the Committee to discontinue consideration of this application. ~is is troubling because the Fort Corchaug offer preceded the application by many months, and as indicated, the applicant was not refusing to make an expenditure to assist in determining lot yield. My understanding of your letter is that even if a survey is submitted, the Town is not in a position to consider the LaColla parcel because Of the prior commitment of funds to Fort Corcheug. If this is not correct, then please clarify your letter so that I may be in a position to explain to the applicant the actual basis for discontinuing your consideration of this parcel. Very truly yours, Charles R. Cuddy T0~N OF SOUT]~OLD LAND PRESERVATION COMMITTEE Town Hall Southold, NY 11971 Tel. 765-1801 November 20, 1991 Charles R. Cuddy, Esq. t80 Old Country Rd.-Rte. 58 Riverhead, NY 11901 Re: Tax Map #1000-54-4-19 LaColla Estate Dear Mr. Cuddy: This will acknowledge receipt of your letter of October 30, 1991. You ask that I clarify my letter to you of October 22nd in which I reported that the Land Preservation Committee elected to discontinue consideration of the LaColla property. It seems appropriate to review our mutual attempts to find a potential yield for this land at its highest and best use. When you and I met at my home on July 17th, I agreed to ask the Town Planner if there might be a method to ascertain the yield of this acreage. As I went forward with that proposal, you wrote to me on August 6th pointing out that your clients' agreement to this review by the Planner waived none of their rights to petition or sue for other relief. You sent Ms. Scopaz a copy of your letter. On August 28th I advised you of the problems involved in any evaluation of this site because of the extensive wetlands an.d ponds it borders and encompasses. I proposed that an updated survey and flagging by your clients be undertaken, permitting a joint review by the Trustees and Planning Board. You and I discussed this letter by telephone and it is the substance of this conversation on which we apparently differ. I understood you to say that your clients were not willing to bear the cost of this survey and flagging, unless the Town would furnish a per acre dollar value prior to such a su.rvey. -2- At our meeting of October 10th the committee reviewed the correspondence and I reported what I considered an impasse in our discussion. At that session, the LaColla property was one of eight under consideration. As you point out, the Town's $1,000,000 com- mitment to Fort Corchaug has been pending for some time. We had hoped for a resolution by now but Mr. Baxter has sued both Town and County and we cannot foresee an early disposition. Thus, our Open Space budget remains limited. This legitimate concern has some effect on all our discussions, including the con- sideration of your clients. Hence, I mentioned that factor in my letter to you of October 22nd. If your clients are interested in reopening the matter by obtaining the prerequisite survey, I~m sure the committee will place the parcel back on our agenda. Sincerely, Frederick A. Ross, Chairman Southold Land Preservation Committee December 2, 1991 Mr. Frederick A. Ross Towll of Southold Land Preservation Committee Town Hall Southold, NY 11971 Re: Estate of Joseph A. LaColla, Jr. Tax Map ~1000-56-4-19 Dear Mr. Ross: I am in receipt of your letter of November 20, 1991. It seems to me that we are going through a series Of machinations in order to satisfy a pre-condition that the Town has set before even considering this matter. I came to you without pretext and indicated what my client felt was an appropriate and reasonable value for this parcel. I stated how we arrived at a value on a per acre basis for uplands and w~tlands, it was my understanding that you believed the request was reasonable. However, it [iow appears to me that the Town is taking the position that not only will it expect the applicant to pay money for a survey as a condition to examining this matter but that it cannot even bring itself to discussing a per acre dollar value. I am at a loss to understand this approach. It is difficult ~or me to believe that the Town does not have some approximato value that it ascribes to upland acres and wetland acres zoned for residential use. Why must an applicant expend upwards of $10,00U for a survey ,and to flag a parcel when there may be ~o prosepct for an agreement ~on valuation? Isn't th~s a futile ex~rcise which effectively penalizes tho unsuccessful applicant? In snort the yield is mathematical while the valuation is no~t. I.fl\~ we cannot discuss the valuations in general terms, prior to ascertaining the yield, then you ask an applicant to expend :money on a virtually experimental basis. I am hopeful that government acts in a more reasonable fashion. Perhaps the shoe should be placed on the other foot. Would you explain to me and the applicant why the Town refuses to discuss a per acre value for land and what this refusal accomplishes. Mr. Frederick A. December 5, 1991 Page 2 I am still uncertain as to the Town's actual position with reference to the LaColla property and even making an offer. Your letter again suggest that the Town is not even in a position to consider this parcel since it has no monies available. ! again ask you to state whether this is accurate or in fact whether the 'Town has money available to purchase the LaColla parcel at this time. By my directness I do not mean to adopt a strident tone. it does not appear to me that my client is being treated his offer taken seriously. Howover, fairly or Very truly yours, CRC/pc Charles R. Cuddy '~'1/0 . ~ % /~. ~-~. ~_ /~- TOWN OF SOUTHOLD PERTY RECORD CARD OWNER ORMEI~ OWNER RES. 2~'0 LAND SEAS. IMP. VL. ~oo TOTAL FARM DATE VILLAGE A..~-. co . IIND. FI DIS~ SUB. ACREAGE [ 'TYPE OF BUILDING CB. REMARKS LOT - Total Value Per Acre Value Tillable 2 Tillable 3 Woodland Swampland Brushland House Plot Tillable 1 Farm AGE BUILDING CONDITION " NEW NORMAL BELOW ABOVE '~ MISC. COLOR M. Bldg. Extension i Extension Foundotion Basement Ext. Walls Fire Place Type Roof Porch >,ecreation Room Porch Dormer Breezeway Driveway Totol' Both Floors Interior Finish Heat Rooms ]st Floor Rooms 2nd Floor ~~_~/_/g' ' TOWN OF SOUTHOLD :ORD -CARD OWNER STREETI~2 3 ~q~ VILLAGE DIST, SUB. LOT k~)O ~'~ ( ~ ~ ~ ~ v* ~ i o S W , ~PE OF BUILDING RES. S~S. V~ ~lJ FARM COMM. CB. MISC. Mkt. Valu~ ~ND IMP. TOTAL DATE REMARKS '~ - ' ' ~JT~.xoz~ .~¢~. ~ - ~ ,~ ~. ' ( / ' 'I/ AGE BUILDING CONDITION N~ NOR~L BELOW ABOVE FA~ Acre Value Per Value Acre Tillable 1 Tillable Tillable 3 W~land Swampland FRONTAGE ON WATER Brushlond FRONTAGE ON ROAD ~ouse Plot DEPTH BULKH~D ~otol D~K OWNER :. OF SOUTHOLD PROPERTY~ RECORD~ CARD STREET VILLAGE SUB. LOT ACR._ VL FARM ' LAND IMP. TOTAL DATE 5"00 BUILD REMARKS TYPE OF BUILDING Mkt. Value ,/ L- Ioo ~ Woodland Swampland Brushland H0bse Plat Total FRONTAGE ON WATER FRONTAGE ON ROAD DEPTH ~'~ ~ BULKHEAD DOCK Extension ~ ~ ~ ~. , ~[J Fire PI,ce ,f Heat ~/~W' DR. Type Roof ~ Rooms 1 st Floor BR. ' Porch Recreation Roan Rooms 2nd Floo FIN. B ' ' Porch Dormer' ' ' ' Breezeway Driveway '" Total: : TOWN OF SOUTHOLD PROPERTY RECORD CARD · OWNER STRE~rL.J '//57 V,L,_AGE D,ST. SUB. ,.OT FOYER OWNER N~ E " ACR. j S ~ ~ W ~PE OF BUILDING RES~ ~0 S~S. VL FARM COM~ CB. MISC. Mkt. Value ~ND IMP. TOTAL DATE REMARKS AGE BUILDING CONDITION N~ NOR~L BELOW ABOVE FA~ Ac~e Value Per Value . Acre Tillable Tillable 2 Tillable 3 W~land Swampla~ FRONTAGE ON WATER House Plot DEPTH COLOR M. Bldg. Extension Extension Extension Porch ??~ Breezeway 2a~rage Tara Foundation ~1~-~, ~, ersement Ext. Walls /~q~' Fire Place r,~/,,r' Type Roof Recreation Room ~'~ Dormer Drivewoy 444 t Bath / Floors Interior Finish Heat /-/, Rooms 1st Floor :Jeer (OOC).56_4..2.0._TOWN~ OF SOUTHOLD PROPERTY RECORD CARD OWNER STREET 6 Y /~'.~'~' VILLAGE DIST. SUB. LOT S W ~PE OF BUILDING ~ND IMP. TOTAL DATE R~RKS Meadowlond DEPTH ~ ~ ~~- ~ H~ Plot BULKH~D ToPoi -- ~"-~'~--'~ -'-Z~2o I ~ ~2~~ Fo~ndatio~ Bath Extension Ba~ment Floors Extension Ext. Walls Interior Finish Extension F ire Place Heat Porch Pool Attic Deck Patio Rooms 1st Floor Breezeway Driveway Rooms 2nd Floor Garage O.B, PROPERTY 1~__~-~/~/-2/ TOWN OF SOUTHOLD RECORD CARD OWNER STREET ~/~/'~'~._~- VILLAGE DIST. SUB. RES. SEAS. VL FARM COMM. CB. MISC. Mkt. Value AGE BUILDING CONDITION N~ NOR~L BELOW ABOVE FARM Acre Value Per Value Acre Tillable 3 W~lond Swampland FRONTAGE ON WATER J Brushland FRONTAGE ON ROAD. / House Plot DEPTH ~ ~ BULKH~D Total DOCK Extension Basement A/'O Floors f~I~ l~~l ~ * 't~ K. Extension Ext. Wails fi0 B~A;~ ' Interior Finish LR. Extension Fire Place .~ Heat DR. Type Roof f~?~ I Rooms 1st Floor BR. Porch Recreation Roo~ Rooms 2nd FIoo FIN. Porch Dormer Breezeway Driveway Barage TOWN OF SOUTHOLD PROPERTY REC:ORD CARD OWNER, STREET 6 ~7/ 7'~''~' VILL/,,GE DIST. SUB. FA~ Acre ~lue Per Va Woodland Swampland FRONTAGE ON WATER Bruskland FRONTAGE ON ROAD ~ - ~00 w~ ~ JJO Ho~se Plot DEPTH 9'~ .g-SO M. Bldg. Extension Extension Extension COLOR TRIM Foundation Ext. Walls Fire PEace Type Roof Bath Floors Interior Finish Heat Rooms 1st Floor Porch ,. ~,ecreation Room Rooms 2nd Floor Porch Dormer Breezeway Driveway Garage Patio Total TOWN OF SOUTHOLD PROPERTY RECORD CARD OWNER STREET //-//7~_5 VILLAGE DIST. SUB. LOT RES. S~S. VL FARM COMM. CB. MISC. Mkt. Value ~. ~/,, ~ /?~.~ ' -- L~ 7~ AGE N~ NO~AL BELOW ABOVE FA~ Acre ValueAcrePer Value Tillable 1 Tillable 2 , Tillable 3 Woodland Swampland FRONTAGE ON WATER H~se Plot DEPTH / ~ ~-' / ', ~ ~ ~ ~ BULKH~D Totol DOCK S:.-' COLOR Extension Extension Extension Porch Porch Goroge Patio ;i Total /.~o. ]osement ] ~. o~-~t. Wo,s /5 }' ~f :ire*lace Fype Roof ~ecreation Room Dormer ~ ~ )riyeway Bath :Floors nterior Finish ~eat Rooms 1st Floor 2nd Floor "-/-~-4 TOWN' OF SOUTHOLD PROPERTY RECORD CARD /~)? ( OWNER STREVI' ~ ~//~" VILLAGE DIST. SUB. LOT' S W TYPE OF'BUILDiNG' RES. ~0 SEAS. VL FARM COMA~. CB. MICS. Mkt. Value (~-: LAN D IMP. TOTAL DATE REMARKS AGE BUILDING CONDITION N~ NO~L BELOW ABOVE FA~ Acre Volue Per Volue tilloble FRONTAGE ON WATER WoOl=nd ~ FRONTAGE ON ROAD ~ ~ ~'. ~ ~ ~ ~ Meodo~lond / ~' ~ ~ J ~ DEPTH (~ ~. ~ ~ c? 0 o BULKH~D Total ~2 0 0 /D~K M. Bldg. Extension Extension Extension Porch Porch Breezeway Garage COLOR . TRIM Patio Room Rooms 2nd Floor O.B. Dormer Driveway T~al Ext. Walls Fire Place Type Roof Recreation Bath Floors Interior Finish Heat Rooms 1st Floor r Dinette LR. DR. BR. E~asement / RR : HD R-80 '~, R-80 ~ SHELTE TOWN OF SOUTHOLD ZONING BOARD OF APPEALS COUNTY OF SUFFOLK In the Matter of the Application of : EUGENE M. LA CELLA : AFFID~%ViT for a Use Variance. STATE:O~ NEW YORK) ) COUNTY OF SUFFOLK ) t{~is affidavit in SS.: TIMOTHY Az R'u~MPH,,,~b~fig' duly ~worn, deposes and~ says: ~%am ~n ~envi.ronm~ntal and plan~ing~nsultant and, make.,~ support of the application of Eugene M.' LaCO~la · for'a use varxance for pamt of· the parcel loc~,~ed on the north side of the Main Road (N.Y.S. Route 25) at Arshamomaque',near- Greenport. I am a graduate of Rutgers University with a Bachelo~ Science Degree in Landscape Architecture, and have a Masters' Degree in Social Ecology. Following graduation I was employed b~ the Planning Department of Southampton Town to review site.pXa~s ~nd sqb~ivision applications. Subsequently I acted as a planning consultant to a number~of-Towns and Villages on ~ong including Southold, and presently serve on the Architectura~ Review Board of the Tow~ of'Riverhead. I am familiar with the LaColla site and state to this Board that the adjoining MII Zone and R-80 Zone do not make planning sense, since a heavy commercial zone abuts a low density residential zone. As a minimum there should be a transitional · '' ~ nr zone ~etween the ~wo, ~p~efqrably permlttin~ge e al business-use in harmony with e~istihg business uses. In this instanc~ an R~S0 Zone located between the m~ih commercial artery (Route 25)~ and the Long Island Railroad trackS, not oniy is inappropriate, but virtually condemns the ~arcel. In my experience, a low density residential district bordering existing commercial uses and located on a relatively heavily traveled thoroughfare is not a location for a two (2) acre residential district. The uses the applicant wishes to make of the four (4) ~ acre parcel along Route 25 including wholesale businesses, warehouses, contractors' businesses, office buildings, repair shops and retail sales, are compatible with the adjoining existing use pattern. Conversely the adjoining commercial uses render the LaColla parcel unsuitable for residential uses. I respectfuly request that to mitigate the harshness of the existing zoning this Board grant a use variance to the applicant. To this end my firm has designed a site lay out and I have offered it for the Board's consideration. (~imothy [. ~hph~ Sworn to before me this day of June, 1992 TOWN OF SOUTHOLD ZONING BOARD OF APPEALS COUNTY OF SUFFOLK In the Matter of the~tion of : EUGENE M. LA COLLA : for a Use Variance. : AFFIDAVIT the subject acre parcel was approximately $45,000.00. The family has paid over $40,000.00 in taxes and receives no from the property. Estate of La Colla income STATE OF NEW YORK) COUNTY OF SUFFOLK) ANDREW D. STYPE, being duly sworn, deposes and says: I am a licensed real estate broker and an appraiser, having lived in the Town of Southold all of my life. I regularly complete real estate appraisals for banks and lending institutions, as well as for private individuals and government agencies and am fully familiar with the La Colla parcel located on the north side of Route 25 at Arshamomaque near Greenport. A substantial part of the La Colla parcel is in the R-80 zoning use district. In my opinion, placing the parcel in that use district effectively destroys its economic value. Without a use variance the five (5) acres of upland now zoned R-80 are worth $60,000.00, i.e., $30,000.00 for each two acre parcel, which zoned for business use the value would increase to $280,000.00. The purchase price or acquisition value by the La Colla Based upon the acquisition value and the expenses for real property taxes, there is no gain or increase attributed to the overall parcel or to the smaller parcel which is the subject of this application. I have reviewed the Town Code for the permitted use and special exception use allowed in the R-80 use district. None of these uses are viable for this parcel, and in my opinion, the parcel could not be sold for any such permitted use or special exception use for a price which would be anything close to paying a reasonable return to the La Collas for more than they have expended. Using this parcel for the purposes permitted in the Zoning Code effectively ~ the parcel from yielding a reasonable return particularly along the Main ~Qad, which residential use. ~0~~ ~/{~.ndrew DT~ ~ for this land, adaptable for Sworn to before me this ~ day of June, 1992. not TOWN OF SOUTHOLD ZONING BOARD OF APPEALS COUNTY OF SUFFOLK In the Matter of the Application of EUGENE M. LA COLLA for a Use Variance. AFFIDAVIT STATE OF NEW YORK ) ) SS.: COUNTY OF SUFFOLK ) MARY ANN FEAVEL, being duly sworn, deposes and says that: (1) I am a licensed real estate broker and have acted as an agent for parties selling real estate throughout the Town of Southold in hundreds of sales and also have bought and sold real estate in the Town of Southold for more than fifteen years. (2) During that time, I have become familiar with the LaColla parcel that is the subject of the use variance application before the Zoning Board of Appeals. (3) I am familiar with the zoning of the subject parcel and the provisions'of the Town Code affecting the parcel. (4) This twenty-eight-acre parcel located at Arshamomaque an~ identified by tax map %1000-56-04-19 and 28/cannot be sold for R-80 purposes and cannot be used for any of the permitted uses set forth in the R-80 section of the Town Code substantially covered with wetlands, and is located between the Main Road the south and (Article III]. The parcel is is adjacent to commercial uses (New York State Route 25) on the Long Island Rail Road on the north. (5) Based on its location on the Main Road (NYS Route 25) between Greenport and Southold, in my opinion the only viable use for this parcel is to make use of the upland area on a commercial basis; otherwise, the property will not return any reasonable yield to its owner(s). In this connection, I reinterate that the LaColla parcel cannot be sold for R-80 uses (Section 100-31), i.e., one- family detached dwellings, agricultural operations as well as those uses permitted by special exception (a copy of which is annexed hereto). (6) I make this Affidvit not only based upon my years of experience as a broker, but also based upon my familiarity with the locale in which the property is located, noting that to the southwest of this parcel and to the west of this parcel there are marina use districts and that the land immediately contiguous to the applicants' land contains business uses. (7) It is my opinion that without the relief requested, the parcel cannot be sold and cannot be used.~_~/,/~ ~//~/~~.~F~ MA~uNN FEAVE~ ~ Sworn to before me this ~Q day of June, 1992. § 100-31 ZONING § 100-31 stand in existence on the effective date of this subsection must, within one (1) year from such date, comply with the provisions hereof. (b) The keeping, breeding, raising and training of horses, domestic animals and fowl (except ducks)~ on lots of ten (10) acres or more. (c) Barns, storage buildings, greenhouses (including plastic covered) and other related structures, provided that such buildings shall conform to the yard requirements for principal buildings. (3) Buildings, structures and uses owned or operated by the Town of Southo]d~ school districts, park districts and fire districts. B. Uses permitted by special exception by the Board of Appeals. The following uses are permitted as a special exception by the Board of Appeals, as hereinafter provided, and, except for the uses set forth in Subsection B(15) hereof, are subject to site plan approval by the Planning Board: (1) Two-family dwellings not to exceed one (1) such dwelling on each lot. (2) Places of worship, including parish houses (but excluding a rectory or parsonage, which shall conform to the requirements for a one-family dwelling), subject to the following requirements: (a) No building or part thereof shall be erected nearer than fifty (50) feet to any street line and nearer than twenty (20) feet to any lot line. (b) The total area covered by all principal and accessory buildings shall not exceed twenty percent (20%) of the area of the lot. (3) Private elementary or high ~heols, colleges and other educational institutions, subject to the following require- merits: 10039 2- z.~- sa § 100-31 SOUTHOLD CODE § 100-31 (4) (5) (a) (b) (c) (d) No building shall be less than fifty (50) feet from any street or lot line. The total area occupied by all principal and accessory buildings shall not exceed twenty percent (20%) of the area of the lot. Any school shall be a nonprofit organization within the meaning of the Internal Revenue Act and shall be registered effectively thereunder as such. Any such school shall occupy a lot with an area of not less than five (5) acres plus one (1) acre for each twenty-five (25) pupils for which the building is designed. Nursery schools. Philanthropic, eleemosynary or religious institutions, hospitals, nursing and rest homes or sanatoriums for general medical care, but excluding facilities for the treatment of all types of drug addiction, subject to the following requirements: (a) No building or part thereof or any parking or loading area shall be located within one hundred (100) feet of any street line nor within fifty (50) feet of any lot line. (b) The total area covered by principal and accessory buildings shall not exceed twenty percent (20%) of the area of the lot. (c) The maximum height shall be thirty-five (35) feet or two and one-half (2~ stories. (d) The entire lot, except areas occupied by buildings or parking or loading areas, shall be suitably land- scaped and properly maintained. (e) Sufficient exterior illumination of the site shah be required to provide convenience and safety. All such illumination shall be shielded from the view of all surrounding streets and lots. 10040 z-zs-ss § 100-31 (6) (7) ZONING § 100-31 (0 Any nursing home, hospital or sanatorium shall meet the following standards: [1] All buildings shall be of fire-resistive construc- tion. [2] All such uses shall be served by adequate water and sewer systorns approved by the Suffolk County Department of Health. [3] Patients suffering from communicable diseases shall not be permitted in any nursing home or sanatorium. (Communicable diseases are cie- fined by the Sanitary Code of the Public Health Council of the State of New York.) [4] Eight thousand (8~000) square feet of lot area shall be provided for each patient bed. Public utility rights-of-way as well as structures and other installations necessary to serve areas within the town, subject to such conditions as the Board of Appeals may impose in order to protect and promote the health, safety, appearance and general welfare of the community and the character of the neighborhood in which the proposed structure is to be constructed. Beach clubs, tennis clubs, country clubs, golf clubs, public golf courses and annual membership clubs catering exclusively to members and their guests and accessory playgrounds, beach., swimming pools, tennis courts, recreational buildings and maintenance buildings, subject to the following requirement.~: (a) No building or part thereof or any parking or loading area shall be located within one hundred (100) feet of any street line or within fifty (50) feet of any lot line. (b) The total area covered by principal and accessory buildings shall not e×ceed twenty percent (20%) of the area of the lot. (c) Such use shall not be conducted for profit as a hoslnes~ enterprise. 10041 2 - 25 - 89 § 100-31 (d) (e) SOUTHOLD CODE § 100-31 No such uso shall occupy a lot with an area of less than three (3) acres. The direct source of all exterior lighting shall be shlelded from the view of surrounding residential lots. (8) Children's recreation camps organized primarily for seconal use and subject to the following requirements: (a) No building, tent, activity area or recreation facility shall be less than two hundred (200) feet from any lot line, and any such building, tent, activity area or recreation facility shall be effectively screened therefrom as required by the Planning Board. Buildings intended for uso as sleeping quarters shall be not less than thirty (30) feet from each other, except tents, which shall be not I~ than ten (10) feet apart. (b) The minimum lot area shall be not less than ten thousand (10,000) square feet for each cottage, tent or other principal building and not less than three thousand (3,000) square feet of land area shall be provided for each person accommodated in the buildings or tents on the premises. (c) All outdoor lighting shall be arranged and/or shielded to eliminate the glare of lights toward nearby residential lots, streets or other public facilities. (d) The sound level of all outdeer public-addrees systems shall not exceed the intensity tolerable in a residen- rial neighborhood. (9) Farm labor camps, subject to the following requirements: (a) All farm labor camps on farms shall bo construed in conformance with applicable laws and shall not be located nearer to any other residence than the residence of the employer, except by specific review and approval of the Planning Board. I~42 2-25-89 § 100-31 ZONING § 100-31 (10) Veterinarian's offices and animal hospitals, subject to the following requirements: (a) The housing of all animals shall be in a fully enclosed structure, if nearer than one hundred fifty (150) feet to any lot linc. (11) Cemeteries. (12) Stables and riding academies. (13) Wineries for the production and sale of wine produced from grapes primarily grown in the vineyards on which such winery is located. [Amended 8-1-89 by L.L. No. 15-1989] (14) One (1) accessory apartment in an existing one-family dwelling, subject to the following requirement~ (a) The accessory apartment shall be located in the principal building. (b) The owner of the existing dwelling shall occupy one (1) of the dwelling units ~s the owner's principal residence. The other dwelling unit shall be lezsed for year-reund occupancy, evidenced by a written lease for a term of one (1) or more years. (c) The existing one-family dwelling shall contain not less than one thousand six hundred (L600) square feet of livable floor are~ (d) The accessory apartment shah contain not less than four hundred fifty (450) square feet of livable fleer (e) The accessory apartment shall not exceed forty percent (40%) of thc livable floor area of the existing dwelling unit~ (0 A minimum of three (3) off-street parking spaces shall be provided~ (g) Not more than one (1) accessory apartment shall be permitted on a Iot~ 1OO43 § 100-31 SOUTItOLD CODE § 100-31 (h) The accessory apartment shall meet the require- ments of a dwelling unit as defined in § 100-13 be~of. (i) The exterior entry to the accessory apartment shall, to the maximum extent possible, retain the existing exterior appearance of a one4amily dwelling. (J) All exterior alterations to the existing building, except for access to the apartment, shall be made on the existing foundation. (k) The certificate of occupancy shall terminate upon the transfer of title by the owner or upon the owner ceasing to occupy one (1) of the dwelling units as the owner's principal residence. In the event of an owner's demise, the occupant of an accessory apartment may continue in occupancy until a new owner shall occupy the balance of the dwelling or one (1) year from date of said demise, whichever shall first occur. (I) All conversions shall be subject to the inspection of the Building Inspector and renewal of the certificate of occupancy annually. (m) The building which is converted to permit an accessory apartment shall be in existence and have a valid certificate of occupancy issued prior to January 1, 1984. (n) The existing building, together with the accessory apartment, shall comply with all other requirements of Chapter 100 of the Town Code of the Town of Seuthold. (o) Notwithstanding the provisions of § 100-3lB hereof, no site plan approval by the Planning Board shall be required for the establishment of an accessory apartment. (P) Approval by the Suffolk County Department of Health Services of the water supply and sewage disposal systems shall be required. 10044 § 100-31 ZONING § 100-31 (q) No bed-and-breakfast facilities, as authorized by § 100-31B(15) hereof, shall be permitted in or on premises for which an accessory apartment is authorized or exists. [Added 3-14-89 by L.L. No. 1989] (15) The renting of not more than three (3) rooms in an owner- occupied dwelling for lodging and serving of breakfast to not moro than six (6) casual and transient roomers, provided that the renting of such rooms for such purpose is clearly incidental and subordinate to the principal use of the dwelling, subject to the following requirements: (a) Adequate off-street parking spaces shall be provided for such rented rooms in addition to parking spaces for the use of the family of the owner. (b) No accessory apartment, as authorized by § 100- 31B(14) hereof, shall be permitted in or on premises for which a bed-and-broakfast facility is authorized or exists. [Added 3-14-89 by I.L. No. 3-1989] C. Accessory uses, limited to the following uses and subject to the conditions listed in § 100-33 herein: (1) Any customary structures or uses which are customarily incidental to the principal use, except those prohibited by this chapter. (2) [Amended 4-9-1991 by L.L. No. 10-1991] Home occupation, including home professional offices, provided tha~ (a) No display of goods is visible from the street~ (b) Such occupation is incidental to the residential use of the promises and is carried on in the main building by the residents therein with not more than one (1) nonresident assistant. (c) Such occupation is carried on in an aroa not to exceed twenty-five percent (25%) of the area of all floors of the main building, and in no event shall such use occupy more than five hundred (500) squaro feet of floor 10045 TOWN OF SOUTHOLD ZONING BOARD OF APPEALS COUNTY OF SUFFOLK In the Matter of of EUGENE M. the Application LA COLLA for a Use Variance. AFFIDAVIT STATE OF NEW YORK ) ) ss.: COUNTY OF SUFFOLK ) EUGENE M. LA COLLA, being duly sworn, deposes and says that: (1) I am one of the owners of the twenty-eight-acre parcel located on the north side of the Main Road at Arshamomaque in the Town of Southold, having succeeded to my father's interest in the premises with my six (6) brothers and sisters at the time of my father's death. (2) In connection with the application made before the Zoning Board of Appeals, I represent that my brothers, sisters and myself have submitted the entire parcel to many brokers throughout the Town of Southold over a period of twenty years and have never once received an offer to purchase the parcel at any price. (3) I verily believe and submit that the part of the parcel as zoned R-80 cannot be utilized for any of the purposes set forth in the R-80 District and have therefore requested a use variance to permit commercial uses over the upland portion of the property which is presently designated R-80. (4) I request that the Board note that since my father's death in 1960 my brothers, sisters and I have expended more than $40,000 in real property taxes. The present yearly tax is $~ While the value of the real property in 1960 was $1,600 per acre or $45,000 for 28 acres, the total value of the usable portion of the parcel today is $60,000. Assuming a modest value for the wetland acreage, we have held this property for thirty years without any increase in value. In effect there is no reasonable return for this parcel which has been held in my family and retained in pristine condition for more than thirty years. (5) At one time the parcel had summer members of my family. They had limited use, ago, and now are inhabited by racoons. The cottages used by were abandoned years locale is not residential in character, and not only have we not been able to sell the entire parcel for residential purposes, but the cottages could not be rented and there has not been any income from the premises. (6) In connection with this application, I again offer to maintain the substantial wetland area of this parcel in its natural condition and, if appropriate, to place a scenic easement over the wetland and unused upland portions of the parcel. (7) In addition, I offer on behalf of myself and my brothers and sisters to dedicate a ten-foot strip to the Town or State, as the case may be, which strip of land runs parellel to Route 25. (8) My family has retained this parcel in essentially its existing condition for more than thirty years. We have gotten little or no use from the land, and with its present zoning have no expectation of realizing any use or income from the parcel; there- fore, I respectfully request that the use variance be granted permitting us business Route 25. Sworn to before me this ~k~ day of June 1992. Notary Public ~ use of the few upland acres adjoining EUGEN~M. LA COLLA To: Board of Appeals - Town of Southold From: F. M. Flynn Re: Objection to Appeal Date: June 30, 1992 No. 4091 - Eugene M. La Colla et al Application and Supportin~ Testimony Applicant states that a use variance is portion of the subject property for the property cannot be used as zoned." soughton the upland reason that "the The business zoned portion has utility as zoned; witness other parcels contiguous thereto. Any claimed hardship would be self-created. As for the residentially zoned portion; it is, and has, been used, in part, for this purpose. To understand the concept of use, or utility, the bases for value must be understood. The components of value are: utility, scarcity, demand and purchasing power. Foremost among these is utility. If a property/object has utility, it has value. Conversely, if value is ascribed to a property, it must have utility. The applicant's appraiser has ascribed a market value of some $60,000- to the residentially zoned portion of the property for which a variance is sought. In addition, the area of the~t'r requested variance includes a vacant parcel of some 20,500sq. ft. ~ .... in MII zoning, a parcel which has obvious value. For the subject property to have the value ascribed, or more, it must have utility as zoned. Based on the testimony introduced by the applicant's appraiser, the claim that the property has no use as zoned is negated. Under reasons for appeal, Hardship is claimed, ostensibly because the parcel cannot be sold for residential use as zoned, and will not provide a reasonable yield if use is restricted to those permitted by the zoning. All of the property for which a variance is requested is not zoned for residential use. Further, the applicant's appraiser has provided an estimate of market value. Market value is the price a property will bring if exposed to the market, i.e. sales price. Applicant has admitted property can be sold for residential use. Hardship is stated to be Unique because of the property's configuation, location and because of the claimed inability to use the property for permitted uses effectively confiscates the property. All properties are unique to some degree. I~the subject is indeed unique by reason of configuration ang location, these factors existed at the time of purchase and should have ben apparent to the informed purchaser upon whom market value is predicated. Undoubtedly these factors were reflected in the property's purchase price. The claim of inability to use the property for permitted purposes is contradicted by the market value ascribed. There is an established principle in zoning law that hardship cannot be recognized if created by the owner or his predecessors in title. Should such a hardship exist it existed at the time of purchase and was reflected in the price paid. Before the Board of Appeals we are constantly exposed to the sorry spectacle of owners who have willingly and willfully purcased marginal propoerties with inherent hardships at a nominal price who then attempt to obtain an unconscionable profit by means of a variance. Somehow these applicants remind me of the youth who murdered his parents and then sought pardon because he was an orphan. The claim is advanced that the inability to use the property for permitted uses effectively confiscates the property. C~;~scation, if it exists must be proven by dollar and cents analysis of each permitted use. The fact that the property is, and has been, used for permitted uses, and market value ascribed, refutes the claim of confiscation. Confiscation as defined by the courts, states that the econo,mic value, or all but a bare residue of the value of the parce~ and only then is a taking established. ~ destroyed In effect, if value remains there is no confiscation. In many venues confiscation must be proved as the basis for obtaining a variance. The claim is advanced that the variance, if granted, ~ould Not Change the Character of the District" because business uses presently exist at the site and at nearby parcels. If business uses already exist on the site, property cannot be used as zoned is negated of the property. the claim that for those portions The present business uses antedate zoning. Because business use Oxists here and at nearby properties cannot be used as the pretext for the endless proliferation of business use. Such use must terminate somewhere. It has been held that the mere fact that the premises for which a variance is sought is contiguous to a district where such use is permissable is not grounds for authorizing such use. Business uses cannot be permitted to spread endlessly like a cancer because other business uses, no matter how badly planned, exist in the neighborhood. Should this case then set a precedent for business use opposite on the southerly side of Rte. 25? (2) The To~n Board has expressed its intentions to confine business uses ~rgely to hamlets, and to eliminate strip zoning. These were among the recommendations of the US/UK Task Force which are now considered in the proposed revision of the Master Plan. Granting this variance would certainly conflict with these recommendations. In an obvious attempt to confuse the issue, and to make the owner's plight to seem desperate, applicant has introduced testimony as to the value of the property were the variance granted and property to be valued at its highest and best use level. The courts have long held that an applicant is not entitled to a variance based upon the maximum potential value of the property should the variance be granted. Further, in an obvious attempt to gain the sympathy of the Board, testimony was introduced as to the ages and financial status of the owners. The grant of a variance runs with the land and is not a personal license given to the landowner. Accordingly, any unnecessary hardship which would suffice to justify the granting of a variance must relate to the land, not to the owners themselves.Mere personal hardship does not constitute sufficient grounds for the granting of a variance. General Considerations In the granting of a variance, the public's health, afety and welfare and other general influences and conditions in the neighborhood must be given careful consideration. In the case of National Merritt~ Inc. v. Robert Weist~ etal~ The Court of Appeals held: "However, if there is a legitamate purpose for the orinanee and it is necessarily related to the public~ health, safety and welfare of the community, financial lossis insufficient to compel the granting of the ~ variance." While no such proof has been advanced by the applicant, the decision emphasises the overriding consideration given to the Public health, safety and welfare. The highway safety hazards relating to the subject property are already a matter of public record and concern. Granting the variance requested would serve to compound them. Lots 19 and 24, in their entireties, contain large areas of wetlands. While the areas for which a variance is sought comprises only part of the total area, it is in close proximity to the wetlands and critical environmetal areas, and any improvement would probably have serious detrimental effects thereon. (3) Lot 19 appears to be largely wetlands. The easterly portion of the area for which a variance is sougt is zoned for R-80 use and is heavily wooded. The northerly portions of lot 24 are largely wetlands. Due to environmental and ecological considerations, both Raymond, Parish, Pine and Weiner, the town's consultants for the Master Plan, and the Long Island Regional Planning Board recommended that the undeveloped portions of these lots be preserved as open space. In accordance with these recommendations, the R - 80 use provided for in the Comprehensive Plan is a reasonable one. It should be noted that the property t~the north, in the Arshamomaque and to the south, the former Sage property~are classified as critical environmental areas. The pond on the easterlypart of Lot 24 lies between the Arshamomaque Pond and the Sage Estuary creating a form og greenbelt from Long Island Sound to Peconic Bay. Under these conditions, the subject application should be subjected to intensive SEQRA review. Standards of Proof Required for a Use Variance The burden of proof lies with the applicant. The bench mark case setting the standards of proof required for area variances is the Court of Appeals decision in the matter of Otto v. Steinhilbero Coincidentally, this case involved property located on Long Island. This decision has withstood the test of time, and the standards set have proved to be so logical and defensible that they have been adopted in many other states. The Court held: grant owner Before the Board may exercise its discretion and a variance upon the ground of unnecessary hardship, the recordmust show (1) the land in question cannot yield a reasonable return if used only for the purpose allowed in that zone; (2) that the plight of the is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by yhe variance will not alter the essential character of the locality." Based on Otto and other decisions: 1) All of these elements must be found conjunctively. A failure to establish any is fatal. Hardship is financial by dollars and cents by the ordinance. hardship and must be supported by proof for each of the uses permitted 3) Hardship is the sine qua non in submission of the required proof. If I may be permitted to say so, the phrasing "a reasonable return" is somewhat imprecise. Return is usually construed as the income earned based on the rate earned by income properties. Such a return is not typically sought for residential propeertie to the owners of such ~properties is generally measured based on the utility of the property and the amenities it affords. These factors are reflected in a property's market value. The ~ An indication of the Court's thinking may be found in Otto where it was held: "In the case at bar the applicant has failed to introduce any evidence whatsoever to show that the portion of his land which is located in the residential zone may not be reasonably employed in conformity with the zoning regulattions governing Class "A" districts." Precise definitions of Reasonable Return are difficult to find. Ballentine's Law Dictionary equates Reasonable Return with Fair eturn and provides the following definition: Fair Return - "The term has a double aspect, one legislative and the other judicial." "In the judicial aspect it is the equivalent of nonconfiscatory. Judicially a rate is unreasonable only when it yields a return less than the minimum which the capital invested may demand." (Ballentine's Law Dictionary 3 ed. The Lawyer's Co-operative Publishing Company) It appears that decisions as to a reasonable return are evolving to a return which is nonconfiscatory, i.e. a return which does no destroy a property's economic value and which reflects more than a bare residue of its value._If a property, as has been attested to by the appllcant,~substantlal market value, zoning cannot be considered confiscatory as claimed by applicant. In Rathkopf's The law of Zoning and Planning~ it is stated that to grant a variance:~Courts have held that operation of a restriction must amount to virtual confiscation." In Spears v. Berle, the Court of Appeals held: "Nevertheless, there has evolved from our decisions a standard which,while retaining an element of flexibility, is capable of practical application, under this test, a land use regulation - be it a universeally applicable local zoning ordinance or a more circumscribed measure governing only certain designated properties- (5) is deemed too onerous when it renders the property unsuitable for any reasonable income (,) produetive or other private use for whieh it is adapted and thus destroys its eeonmic valuer or all but a bare residue of its value" (emphasis supplied) "A petitioner who challenges a land use regulation must sustain a heavy burden of proof, demonstrating that under no permissable use would the parcel as a whole be eapable of producing a reasoable return or~ be adaptable to other suitable private use -" "Only when the evidence shows that the eeonomie value, or all but a bare residue of the valueof the parcel has been destroyed, has a 'taking' been established." From the above citations it can be concluded that, if a property has even nominal value, the regulation is not confiscatory and hardship has not been proved. Analysis of Applicant's Investment in Property Entire property, consisting of Lots 19, 20.1, 20.2, 21, 22, 23, 24 and RTI in Paine Island, was purchased in 1946 by Joseph A. La Colla for $5,500-. Area has been variously estimated to be from some 33 acres to some 40 acres. Over a period of time, he apportioned four parcels with highway frontage among his progeny and provided for two residential parcels to the rear. Two of these parcels, the present sites of Hollister's Restaurant and the Greenport Pottery have since been resold. In addition there is a vacant parcel of highway frontage in MII zoning which has an area of approximately 20,500 sq.ft. and an estimated market value of about $20,000-. By any reasonable standard, the investment in the property has long since been recouped. At best, any remaining investment would be nominal. An attempt has been made to influence the Board by reciting an unsubstantiated estimate of real estate taxes paid. One does not capitalize taxes. Proof of this would be ascertained quickly from the IRS if an attempt were made to deduct taxes paid from a capital gain. Valuation of highway frontage on a front foot basis is common methodology. THe property's total Rte. 25 frontage was 2756 +/_ LF Thepurchase price, overall, was $2.00 per LFo (6) Even if all the property's utility is conceded to lie in that portion west of the pond, the usable frontage is 1136 Ascribing the entire purchase price to this portion of the frontage provides an adjusted purchase price of $3.36 per front foot. +/- L?. 761LF of the total usable frontage of 1136 LF is used for business purposes. This use constitutes 67% of this westerly frontage. Thus, at best, only 33% of the investment, or $1815-, isimputable to the vacant land. Included in the vacant land is an ~II zoned vacant parcel approximately 100' x 207' The value of this parcel, alone, far exceeds the remaining investment in the properrty. It is estimated that this parcel, by itself, has a value approximately ten times the remaining investment. Even without consideration of this business zoned parcel, the market value of $60,000- ascribed to the residential portion, alone, by the applicant's appraiser is 33 times the remaining investment. The residential portion, alone, yields a 3,200% return on investment. By any standard this certainly constitutes a reasonable return on investment~ far exceeding both the rate of inflation and #~r indices over the period. Even casting aside all considerations of public health, safety and welfare, and the impact on both the character of the neighborhood and its property values, the logical conclusion is that the applicant cannot prove financial hardship and, as a result, there is no basis for the Board to grant the requested variance. PLANNING BOARD MEMBERS Bennett Orlowski, Jr., Chairman George Ritchie Latham, Jr. Richard G. Ward Mark S. McDonald Kenneth k Edwards Telephone (516) 765-1938 PLANNING BOARD OFFICE TOWN OF SOUTHOLD Town Hall. 53095 Main Road P,O. Box 1179 Southold. New York 11971 Fax (516) 765-1823 TO: FROM: RE: DATE: Gerard P. Goehringer, Chairman, and Members of the Zoning Board of Appeals Bennett Orlowski, Jr., Chairman Appeal No. 4091 - Change of Use for Eugene M. LaColla SCTM # 1000-56-4-19 & 24 July 28, 1992 This is in reference to the above-noted appeal which will be the subject of a reconvened hearing at the Zoning Board's July 29th meeting. We have two areas of concern: one dealing with the environmental review, the other with the nature of the application itself. We have reviewed the minutes and other testimony submitted to the Zoning Board since our last memorandum, and wish to share the following observations. There are problems with the environmental review that should be addressed. First, the Negative Declaration issued by the Zoning Board refers to this proposal as an Unlisted Action. The subject property lies within 500 feet of the Critical Environmental Areas of Ashamomaque Pond and Peconic Bay. {The Board of Trustees designated all of Ashamomaque Pond north of State Route 25 as a critical environmental area in 1989 and 1990. Attached is copy of their resolution. Suffolk County desginated Peconic Bay as a critical environmental area, effective February 21, 1989.) Ail properties within 500 feet of a critical environmental area are Type I actions. A Type I action requires a coordinated environmental review of the Long Environmental Assessment Form. The Planning Board finds that the environmental review cannot be segmented by reserving an in-depth review of this appeal to some later date when applications are made for site plans or subdivisions as the case may be. Accordingly, if the Zoning Board decides to continue to review this appeal for a use La Colla July 28, 1992 Page 2. variance, the Planning Board wishes to be one of the coordinating agencies in the environmental review. Second, the Negative Declaration states that "The square footage of land to be affected by use or building areas...is less than 60,000 square feet." There are two matters of concern here. The first is that there is a discrepancy between these facts as stated in the Negative Declaration and the testimon~ set forth by the applicant's attorney at the past hearings, along with the signed affadavits of Andrew Stype and Timothy Rumph about the amount of upland that is the subject of this petition. The amount of upland that is zoned R-80 and the subject of this petition ranges from the 60,000 square feet mentioned in the Negative Declaration to 4 acres by Mr. Rumph to 5 acres by Mr. Stype to the 4.5 and 5.4 acres mentioned by Charles Cudd¥ at the hearings. Which leads to the second matter: the lack of a plan showing the precise boundary of the wetlands (or the uplands for that matter) and the lack of corroboration of that boundary by the Trustees. The Negative Declaration does not include a clearly marked map showing exactly what property is included (or not included ) in the appeal, and what portion of the property is considered to be the 60,000 square foot upland area. The map that was received by the Zoning Board of Appeals on June 23, 1992, shows a highlighted area, which shows the approximate area of the 60,000 square foot upland area mentioned in the Negative Declaration. However, the map lacks the surveyor's boundaries and calculations of the 60,000 square feet of upland area. To eliminate confusion, a revised map should be circulated during the coordinated review. This map should show the precise, scaled boundary of all portions of the property for which the use variance is being requested. And the calculations of upland area in both the R-80 and MII zones should be noted separately by the surveyor. Our review of this file and the latest developments has reinforced our opinion that this change of use application properly belongs before the Town Board as a change of zone application. The facts: that this application involves more than one use, includes land that lies in more than one zoning district, and asks for uses that, save one, are not allowed in either of the two districts, are the most compelling factors influencing this conclusion. La Colla July 28, 1992 Page 3. To explain further, first, the applicant is requesting permission to add or expand uses which, with the exception of the restaurant, are not allowed in either the residential zone or the marine business zone. The restaurant use is allowed in the MII zone by Special Exception. Second, the applicant is asking for permission to introduce unnamed, multiple uses to a total of 5.4 acres of land. Typically a use variance involves asking the Zoning Board to allow a single, specified use on a site whose zoning does not permit that use. In this case, the applicant is asking for permission to have several uses, each of which save one, is prohibited in both the residential and the marine business zones. Since the uses are numerous, (in some cases non-conforming) and will be situated on more than five acres of land zoned for both Residential and Marine Business uses, along a stretch of a heavily travelled State Road, it is evident that the cumulative immpact of this change will be tantamount to a legislative change or a rezoning. If you were to proceed with this application, you will have approved a change of such magnitude that it will have the practical effect of negating the intent of the Zoning Map in that area. Section 23.59 of Anderson's New York Law and Zoning Practice and the cases cited in this section bear this out. A copy of Section 23.59 of Anderson's and two pertinent law cases are attached for your convenience. The applicant may indeed have a valid case, but the petition by its very nature and magnitude properly belongs before the Town Board. cc: Board of Trustees .Iohn M. Bredemeyer, III, President Henry P. Smith, Vice President ,Albert .L Ki'upski, Jr. John L. Bednoski, Jr. John B. Tuthill Telephone (516) 765-1892 BOARD OF TOWN TRUSTEES TOWN OF SOl.ri'HOLD t,'~ -~c~I SCO'IT L. HARRIS Supervisor Town Hall, 53095 Main Ro: P.O. Box 1179 Southold, New York 1197 Fax (516) 765-1823 Telephone (516) 765- I January 17, 1990 REGISTERED MAIL RETURN RECEIPT REQUESTED Commissioner Thomas C. Jorling N. Y. S. D.E.C. 50 Wolf Road Albany, NY 12233 RE: Critical Area Designations Dear Commissioner Jorling:~ ~' Pursuant to Section 617.4 (J) (1-4) of the New York State Environmental Quality Review, the Southold Town Board of Trustees has designated the attached Tidal Wetlands and underwater lands, owned by the Board and wholly within our jurisdiction, as Critical Environmental Areas. These lands are within the confines of the Town of Southold and were, for Southold Town, designated for critical Area Designation by the Board. please refer to the attached documentation for detailed descriptions regarding the locations of same. Very truly yours, John M. Bredemeyer,III President, Board of Trustees JMB:jb Attachments cc: NYSDEC, Region I, Harold Berger NYS Dept.of State Army Corps of Engineers, Michael Infurna Steve Costa, SCDHS Louise Harrison, SCDHS Town Board Town Clerk ~ 'Planning Board ,. ' ZBA Bldg. Dept. ~// TRUSTEES John M. Bredemeyer, III, President Henry P. Smith. Vice President Albert J. Krupski, Jr. John L. Bednoski, Jr. John B. Tuthill Telephone (516) 765-1892 BOARD OF TOWN TRUSTEES TOWN OF SOU~OLD SCOTT L. HARRIS Supervisor Town Hall, 53095Main R, P.O. Box 1179 Southold, New York 119' Fax(516) 765-1823 Telephone (516) 765-180 January 17, 1990 THE FOLLOWING RESOLUTION WAS ADOPTED BY THE BOARD OF TOWN TRUSTEES DURING ITS REGULAR MEETING HELD ON DECEMBER 21,1989 AND AMENDED AT THE TRUSTEE MEETING ON JANUARy 25, 1990. Moved by Trustee Kujawski, seconded by Trustee Smith WHEREAS, the Southold Town Trustees have held public hearings pursuant to 617.4 (J) 1 thru 4, of the State Environmental Quality Review Act, and WHEREAS,the Southold Town Trustees ownership of Trustee land is to manage such properties'in the beneficial public interest,and WHEREAS, our public trust and historic role as Pantentees is strengthened by the State Environmental Quality Review Act and our ability to protect environmentally sensitive areas, NOW, THEREFORE BE IT KNOWN that Southold Town Trustees approve, ratify, and confirm Critical Area Designation (CEA's) pursuant to the State Environmental Quality Review Act (SEQRA) (Part 617.4 J 1-4 NYCRR) for all Trustee Lands below mean high water in the following'creeks or portions of the creeks by State Department of Transportation Map designations hereto annexed. Such designations shall in no way affect the largely ministerial function of issuing permits or renewal permits for boat moorings on or over town bottom nor effect the usual or ordinary activities of aquaculture, fishing, hunting, navigation, and mariculture, provided such activities are lawful, and structures installed for said purposes are temporary (less than .one year) in nature. The foregoing shall become effective 30 days after filing in the office of the Commissioner of the New · State DEC pursuant to SEQRA. Listing of CEAs: Brushs. Creek, Cedar Beach Creek, Corey Creek, Deep Hole Creek, Goldsmith's Inlet, Halls Creek, Goose Creek, Little Creek, Mill Creek (Arshamomaque) and Pipes Cove Creek. , AMENDED TO READ: (1) Entirety of all named creeks, and Arshamomaque Pond to north of State Route 25, (2) All of Deep Hole Creek inclusive of all tributaries north of New Suffolk Avenue and east of Meadow Lane (previously omitted from maps when drawn). Vote of the Board: Ayes; Trustees Kujawski, Krupski!t~.~l~.~edemeyert.~ Bednoski, and Smith. {~li{~ :73 ENB--FEBRUARY 1, 1989 PROJECT !DES~.:'.i 'elON PAGE 10 REGION'1--Pursuant to Section 34-0t04 of the Environmental Conservation Law ("ECL"], the Department of Environmental Conservation has prepared a final identification of coastal erosion hazard areas for the City of Glen Cove. Nassau County. This final identification identifies land areas containing or comprising natural protective features. On September 12, t984, in accordance with ECL SS34-0f04(2], the Department held a public hearing in the City of Glen Cove to afford affected landowners and other interested parties an opportunity to propose changes to the Department's preliminary coastal erosion hazard area identification. On August t0, t984 the Department sent notice thereof by certified mail to each owner of record, as shown on the latest completed tax assessment rails, of lands included within such area. Certified mail notice af the hearing was also sent to the chief executive officer (~nd clerk of the City of Glen Cove an August 10, 1984, Notice of the hearing was published in the Glen Cove Record Pilot on August 23, 1984, and in the Department's Environmental Notice Bulletin on August 22, 1984. Having considered the testimony given at the aforementioned public hearing and the potential erosion hazard in accordance with the purposes and policy af ECL Article 34, and having consulted with the City af Glen Cave, the Commissioner at Environmental Conservation, pursuant to ECL SS34-0t0413), adapted the final identification of erosion hazard areas and has ordered the following: t. that a copy of the finql identification of the erosion hazard areas be filed in the clerk's office of the City of Glen Cove; 2. that notice of the final identification be given to affected landowners and the chief executive officer af the City of Glen Cove, in accordance with ECL SS34-0t0413]; and 3. that DEC staff maintain a current file of maps of all erosion hazard areas in the City of Glen Cove. Such information is kept i~ the Region I Headquarters of DEC and in the clerk's office of the City of Glen Cove, and is available to the public for inspection and examination. For more information on this action contact: Robert Schneck, NYS Department of Environmental Conservation SUNY, Bldg. 40 Stony Brook, NY t t790, [5t6] 7,5t-7900. CRITICAL ENVIRONMENTAL AREA REGION l--The County of Suffolk has filed the designation of a Critical Environmental Area (CEA) to be known as Peconlc Bay and Environs. This designation includes all of the bays east from the mouth of the Peconic River, to and including Block Island Sound, all of the land beneath of bays and all upland area within 500 feet of all bays and their tributaries. This designation will take effect on February 21, 1989. § 23.56 NEW YORK ZONING punishment of the board members for contempt. However, condi- tions improperly imposed will be disapproved,s § 23.57. --New York City. The zoning resolution of the city of New York authorizes the board of standards and appeals to prescribe such conditions and restrictions in the granting of a variance as it deems necessary to minimize the adverse effects of the variance upon neighboring property. The conditions or restrictions must be incorporated in the building permit and certificate of occupancy. Failure on the part of the applicant to comply with conditions or restrictions imposed by the board constitutes a violation of the zoning resolution and may constitute grounds for denial or revocation of a permit or certificate? E. LIMITATIONS UPON THE POWER TO GRANT VARIANCES § 23.58. Miscellaneous limitations on the power of boards of zoning appeal. The board of zoning appeals is subject to a variety of limita- tions which do not fit conveniently into an outline based upon the Steinhilber requirements~° and the modification of those requirements in cases which deal with area variances." Neither are they strictly procedural matters, which are considered at a later point. These limitations are considered in the several sections which follow. They include limitations on the authority of a board to amend the zoning ordinance,l~ to vary the building code,~ to vary a safety ordinance,~4 to vary a consent require- ment,~ to refuse to decide a matter within the jurisdiction of the board,~6 and to deny a permit on grounds other than those specified in the zoning regulations." 8. Bernstein v Board of Appeals, 60 Misc 2d 470, 302 NYS2d 141 (1969). 9. Zoning Resolution, City of New York § 72-22 (1961, as amended). 10. § 23.08, supra. 1L § 23.33, supra. 250 12. § 23.59, infra. 13. § 23.60, infra. 14. § 23.61, infra. 15. § 23.62, infra. 16. § 23.64, infra. 17. § 23.63, infra. towever, condi- authorizes the conditions and :ems necessary on neighboring ncorporated in Failure on the or restrictions of the zoning l or revocation 'ARIANCES r of boards of -iety of limita- ne based upon ,tion of those nces2' Neither onsidered at a n the several the authority y the building nsent require- sdiction of the ~r than those VARIANCES § 23.59 § 23.59. No power to amend the zoning ordinance. The board of zoning appeals is an administrative body, not a legislative one. Accordingly, it is without authority to amend the zoning ordinance which it administers.'8 In the early years of zoning the hope was expressed that the board of zoning appeals, through the use of its power to grant variances, would obviate the need for frequent amendment of the ordinance.'9 Indeed, the distinction between legislative and administrative relief from the strict application of zoning regulations sometimes was lost or obscured by forms of relief which involved some use of both kinds of power,~° but the principle of separation of governmental powers is commonly applied to municipal governments, and any offense to the principle will invalidate administrative conduct, if it is detected. It is necessary to distinguish sharply between a variance which may be granted by a board of zoning appeals, and an amendment which can be adopted only by the legislative authority of the municipality.' /A variance is, of course, a use of land authorized by a board of zoning appeals upon a showing of circumstances previously required by the legislative authority. It does not alter the zoning regulations; it merely permits a use which is proscribed by such regulations. This distinction is illustrated in Schmitt v Plonski,' where a board of zoning appeals had previously granted a variance to construct a motel in a district where motels were prohibited by the zoning regulations. The owner sought a permit to build a theater on the same land. The court held that the variance did not amend the ordinance; that it did not change the classification of the subject property from residential to commer- 18. Clark v Board of Zoning Ap- peals, 301 NY 86, 92 NE2d 903 (1960), reh den 301 NY 681, 95 NE2d 44 and cert den 340 US 933, 95 L Ed 673, 71 S Ct 498. A board of zoning appeals is with- out authority to amend the zoning regulations of a town. 1968 Ops St Compt 68-797. 19. § 22.10, supra. 20. § 23.04, supra. 1. The court reversed the granting of a variance by the board of appeals, finding that the use was a prohibited one, and that, in effect, the board of appeals was attempting to change the business zone established by the legis- lature. Fortuna v Murdock, 257 AD 993, 13 NYS2d 712 (1939), affd 281 NY 763, 24 NE2d 21. 2. 215 NYS2d 170 (1961, Sup). 26'1 § 23.59 NEW YORK ZONING ] cial. Accordingly, no permit for a commercial use other than a ~_motel could issue without a variance to permit such use? A variance may be regarded as an amendment if it alters in any fundamental respect the zoning scheme that is articulated in the ordinance.' If a variance is destructive of the purpose to be achieved by the zoning ordinance, there is a clear invasion of the legislative process? The limitation is easier to articulate than to apply to the myriad of fact situations which confront the boards and the courts. The cases suggest some clues which are useful in detect- lng a variance in form which may be annulled as an amendment in fact. Most variances involve a single lot or at least a small parcel of land. Where a variance granted by a board of zoning appeals purports to permit the use of a large tract of land for a proscribed purpose, there is a strong possibility that the pur- ported variance will be called an amendment. In Re Northamp- ton Colony, Inc.,6 a board of zoning appeals refused to grant a variance for the commercial use of 51/2 acres of land which constituted an entire residential district. The court sustained the board on the ground that such a variance would, in effect, be an amendment. Similarly, a board refusal to grant an area variance to permit the building of homes on l-acre lots on 40 acres of land zoned for 2-acre lots was sustained. The court said that the variance power was not so broad as to permit an administrative body to lift this amount of property from one zone and place it in another.7 While a board of zoning appeals is without power to ~-3. See Sherman-Engram Realty Corp. v Feriola, 23 Misc 2d 245, 198 ~NYS2d 193 (1960). 4. Cohalan v Schermerhorn, 77 Misc 2d 23, 351 NYS2d 505 (1973); citing Anderson, American Law of Zoning § 14.68. 5. Held v Giuliano, 46 AD2d 558, 364 NYS2d 50 (1975, 3d Dept). 6. 30 Misc 2d 469, 219 NYS2d 292 (1961), affd 16 AD2d 830, 230 NYS2d 668 (2d Dept). 7. Hess v Zoning Bd. of Appeals, 17 Misc 2d 22, 188 NYS2d 1028 (1955). A board of zoning appeals ]acks authority to grant an area variance for a 31-acre parcel. Such a variance 252 would invade the province of the leg- islative body. Giuntini v Aronow, 92 AD2d 548, 459 NYS2d 117 (1983, 2d Dept). In determining whether the prov- ince of the legislature has been in- vaded by the granting of a variance, the size of the parcel is a significant factor. Cohalan v Shermerhorn, 77 Misc 2d 23, 351 NYS2d 505 (1973); citing Anderson, American Law of Zoning § 14.69. A board of zoning appeals is with- out authority to grant a variance to construct dwellings on fiine lots of 25,000 square feet in a district where the zoning ordinance requires a mini- mum of 40,000 square feet. Such a variance would constitute a legislative ,ther than a use? · it alters in ~ articulated ~ purpose to · invasion of pply to the 'ds and the ~1 in detect- amendment .ast a small 'd of zoning f land for a at the pur- Northamp- to grant a land which ~stained the ~ffect, be an ea variance 40 acres of dd that the ainistrative :nd place it ut power to ce of the leg- .' Aronow, 92 117 (1983, 2d ~er the prov- bas been in- f a variance, a significant merhorn, 77 I 505 (1973); can Law of eals is with- ~ variance to nine lots of [strict where ~ires a mini- Ceet. Such a a legislative VARIANCES § 23.60 amend a zoning ordinance, it may not decline to hear and decide applications for 14 special exceptions relating to contiguous lots on the ground that to grant them would be to amend the ordinance.8 A board of zoning appeals cannot grant a variance to change a zoning regulation simply because the board disagrees with the policy of the legislative enactment.9 A variance may not be granted which would result in a material deviation from the zoning plan,'° or for a use which the zoning regulations have excluded." An ordinance provision which terminates noncon- forming uses after a specified period of discontinuance may not be waived through the granting of a variance.'2 § 23.60. No power to vary the building code. The authority of a board of zoning appeals to vary the strict application of the zoning regulations does not include the power to vary the application of the municipal building code? Building act, infringing upon the powers of the municipal legislative body. Van Deu- sen v Jackson, 28 NY2d 608, 319 NYS2d 855, 268 NE2d 650 (1971). 8. Von C, erichten v Schermerhorn, 49 Misc 2d 800, 268 NYS2d 589 (1966). 9. Pounds v Walsh, 129 Mist 676, 223 NYS 459 (1927), affd 223 AD 861, 228 NYS 879, affd 248 NY 591, 162 NE 537. 10. People ex rel. Stevens v Clark, 126 Misc 549, 213 NYS 350 (1926), affd 216 AD 351, 215 NYS 190. Where the town board expressly reserves the power to regulate or modify that part of the zoning ordi- nance creating a flood control district and imposing a building moratorium on the district, the board of zoning appeals is without authority to grant a variance to allow the construction of a building in the district. Holowka v Zoning Bd. of Appeals, 80 Misc 2d 738, 364 NYS2d 403 (1975). The zoning map cannot be changed under the guise of granting a vari- ance. Herarn Holding Corp. v Albany, 63 Misc 2d 152, 311 NYS2d 198 (1970). 11. Beckmann v Talbot, 278 NY 146, 15 NE2d 556 (1938), reh den 278 NY 700, 16 NE2d 849. 12. Swartz v Wallace, 87 AD2d 926, 450 NYS2d 65 (1982, 3d Dept); citing Anderson, New York Zoning Law and Practice, § 18.58 (2nd Ed 1973). 13. Cassety v Dobson, 255 AD 928, 8 NYS2d 740 (1938), reh den 256 AD 895, 10 NYS2d 217. A village board of zoning appeals is without authority to vary the applica- tion of the building code. Rosenstein v Curran, 21 AD2d 802, 250 NYS2d 699 (1964, 2d Dept); discussed in Ander- son, Local Government, 1964 Survey of NY Law, 16 Syracuse L Rev 260 (1964). A village b~ard of zoning appeals may not permit the construction of a building with materials which do not comply with the building code. 1964 Ops St Compt 589; citing Anderson, Zoning Law and Practice in New York State § 18.55. 283 § 276 Note 6 ._ sion map. C.o~h_a!a~LV~Schcrmerhorn, 1973, 77 Misc.2d 23, 351 were located in both town and village, subject lots would have existing fire dis- tricts able to service and provide ade- quate fire protection and plan otherwise qualified, planning board could not deny approval of subdivision application be- cause of mere dispute as to which unit would provide fire protection. Resi- dential Estates, Inc. v. Ztemba, 1972, 68 Misc.2d 996, 329 N.Y.S.2d 590, affirmed 38 A.D.2d 849, 330 N.Y.S.2d 778. 7. Discretion of board Where conflicting inferences may be drawn from evidence, it is duty of town planning board to weigh evidence and to exercise its discretion in approving or denying approval of a subdivision plat. Currier v. Planning Bd. of Town of Huntington, 1980, 74 A.D.2d 872, 426 N.Y.S.2d 35, affirmed 52 N.Y.2d 722, 436 N.Y.S.2d 274, 417 N.E.2d 568, reargu- ment denied 52 N.Y.2d 1072, 438 N.Y. S.2d 1028, 420 N.E.2d 412. 8. Hearings---Generally Town planning board was required to grant public hearing upon subdivision plat which had been submitted for final approval pursuant to proper local proce- dure. Scarsdale Meadows, Inc. v. Smith, 1964, 20 A.D.2d 906, 249 N.Y.S.2d 229. Public hearing on map proposed for final approval may not be withheld by reason of town plannihg board's predis- position to disapprove; hearing is man- datory following submission of properly processed plat. Fishman v. Arnzen, 1966, 52 Misc.2d 329, 275 N.Y.S.2d 669. 9. --Failure to hold hearing or make determination Applicant for plat approval was not entitled to "default" approval of its final subdivision plat based on planning board's failure to hold public hearing within 45 days after receipt of final plat by clerk of planning board, where local law providing that town planning board was not to grant any preliminary or fi- nal approval to residential subdivision came into effect before 45-day period had expired. Turnpike Woods, Inc. v. Town of Stony Point, 1986, A.D.2d 503 N.Y.S.2d 898. TOWN LAW Art. 16 Ninety-day period of moratorium on processing or approval for residential development should not be counted in determining whether town planning board complied with statute requiring hearing within 45 days of presentation of preliminary plat, and thus plats were not entitled to approval on default, cause resolution was a reasonable mea- sure designed to temporarily halt devel- opment while town considered compre- hensive zoning changes and was, there- fore, a valid stop-gap or interim zoning measure. Dune Associates, Inc. v. Anderson, 1986, 119 A.D.2d 574, 500 N.Y.S.2d 741. Application for plat approval was deemed approved when town planning board failed to act within 45 days of application, even though application may not have fully complied with re- quirements of McKinney's Town Law § 276, subd. 2(b). Wallberg v. Planning Bd. of Town of Pound Ridge, 1985, 115 A.D.2d 539, 495 N.Y.S.2d 731. Where subdivision plat in final form was submitted for approval to planning board and no public hearing was held thereon within 45 days after submission, upon expiration of the statutorily pre- scribed time, this section compelling town clerk to issue a certificate of ap- proval became self-executing; failure of board to act within 45 days of submis- sion resulted in approval by operation of law. Pekar v. Town of Veteran Planning Bd., 1977, 58 A.D.2d 703, 396 N.Y.S.2d 102. Where planning board of town had been aware that petitioner's plats had been submitted for final approval, plan- ning board was required to act on appli. cation pursuant to this section, defects in form did not justify its delay in so doing and it was improper to refuse to pass on application because town board desired that there be moratorium on final ap- provals until revised zoning ordinances went into effect. Wallkill Manor Ltd. v. Coulter, 1972, 40 A.D.2d 828, 337 N.Y. S.2d 366, affirmed 33 N.Y.2d 783, 350 N.Y.S.2d 416, 305 N.E.2d 494. Special Term erred in ordering town clerk to issue certificate of approval of subdivision plat to petitioner, on basis of town planning board's failure to take action on petitioner's plat withtn time limitation of subdivision 4 of this sec- tion, since the plat as filed was not in 360 7S, 2d SERIES ~ssistance in the form of estore the grant of such ~e date of its termination. ding within four months :ermination of the Com- ~ment of Social Services, commissioner rendered :~roceeding is not barred ~ NYCRR 358.18 (b) it a copy of respondent's ,imitations did not begin )f the decision. (Matter e set aside as contrary 34, subd. [gl; see, also, 2d 416.) Section 104-a ~ for respondent's deter- ns, the transfer of the lifications as a recipient ~. Pursuant to subdivi- ices Law, the ownership h aid to dependent chil- ncr could not be required t for such aid since peri- ncr in whole or part of Sugarman, 31 N Y 2d is granted. , es to resettle the judg- ment of petitioner's pub- rooted by the judgment ~r. ioner's application was spondent for the fermi- .vas contrary to the law. .~ properly limited scope ed for public assistance ~, the court did not spe- 'e retroactively due to ~as not litigated. The ~f welfare payments to te of their termination. ~' respondent can either MTR. OF COHALAN v. SCHERMERHORN [77 Misc 2d 23] 23 retroactively or prospectively reduce petitioner's benefits. ~hat question should first be treated within the administrative pro- cedures established for that purpose and, if reviewed at all by this court, such review must be within the perimeters estab- lished by CPLR 7803 (subd. 3) and 7804 (,subd. tgi). The court cannot circumvent these required procedures by resettling a judgment. Accordingly, respondent's motion is denied. In the Matter of P~.~E~ F. COHAL~ et al., Constituting the Town Board of the Town of ][slip, Petitioners, v. Wn.,.~,~ H. So,,~a~,o~ et al., Constituting the Zoning Board of Appeals of the Town of Islip, et al., Respondents. Supreme Court, Special Term, Suffolk County, December 6, 1973. Municipal corporations--~oning--area variance, which Zoning Board of Appeals granted subject to approval of Planning Board, did not usurp jur~- diction of Plalming Board or power of Town Board--however, Special Term remands matter to Zoning Board of Appeals to take proof and to make findings which can be intelligently reviewed,by court. 1. A corporation purchased a lot which has 396 feet of frontage on the street by 110 feet in depth--that is, 43,560 square feet or exactly one acre. This one-acre lot is shown on an old filed map. It is part of a large area which is zoned as follows: one-family dwellings only, on lots having at least 11,250 square feet of area and having at least 75 feet of street frontage. The 75 front-foot restriction would amply' allow the corporation to build five one. family dwellings; but the 11,250 square foot restriction would limit the sur- poratlon to only three one-family dwellings, even though each such dwelling would have 132 feet of street frontage. The town's Zoning Board of Appeals granted the eorP°ration a variance allowing the corporation to build five one- family dwellings, provided that the corporation first obtained the approval of the town's Planning Board. This comparatively minor area variance did not usurp the legislative zoning power of the Town Board, nor did it usurp the Planning Board's original jurisdiction to approve or disapprove proposed sub- division plats (el. Town Law, §§ 277, 280-a). 2. However, the Zoning Board of Appeals' conclusion, that the corporation would otherwise suffer significant economic injury, is based on unacceptably eoaclusory findings of fact, founded perhaps on facts known to members of that board, but not stated in the findings. Aacordlngly, in this CPLR artiole 78 proceeding instituted by the Town Board to annul the variance granted by the Zoning Board of Appeals, Special Term remands the matter to the Zoning Board of Appeals to take proof of any economic injury to the corporation and to make findings of fact which, can be intelligently reviewed by a court. He~ry ~. We~zel, II[, for petitioners. James V. Fal~o~ for William H. Schermerhorn and others, respondents. Donner, Fagelso~ ~ Hariton, P. C., Sot C. P. Builders, Inc., respondent. L~o~r D. L~ZE~, J. The Islip Town Board (the "town ") has instituted this article 78 proceeding to annul a series of five 77 MISCELLANEOUS REPORTS, 2d SERIES variances granted by the respondent Islip Board of Zoning Appeals (the "board") to respondent C. P. Builders, Inc. (the "owner "). The parcel involved has 396 feet of street frontage and 110 feet of depth, and was purchased less than a year before the owner applied to the board for relief. It consists of a single one-acre lot on an old filed map, lying in the single-family "Residence A" district which requires of each building lot an area of 11,250 square feet and a frontage of' 75 feet, here limiting the plot yield to three. T~e va~ri_a~n.c~e~autl~o_r.i~ze_d__t_h_e_~cons~ru~q? _~tion~of~_fi.V_e.~wel!ings on lots which contained 8,690 square feet of area and frontag~e~ b~f~79~'S0'~f~'~E~"Th~e~'g~a~_u'~_w, as~m~e subject to Planning Board appr_..oval. The variance applications ~;ere predicated on the theory that compliance with zoning ordinance provisions relating to plot area would result in street frontages exceeding 100 feet, which the owner characterized as "confiscatory" under the circum- stances. No "dollars and cents" testimony was offered at the hearing (see Stanley Park v. Do~zovan, 34: A I) 2d 690). After inspecting the property the board approved the. applications, concluding "that the applicant will suffer economic injury if the strict application of the area ordinance were enforced to require .the applicant to provide an i~nproved plot frontage in. excess o~. 102 feet in lieu of the required 75 .feet." The board (also contiguous, parcels were substa, ndar~i-~l' found that the that the proposed reduced lots conf°~m~d SUb~antmlly plots in the immediate S/ii~yOUnding area: ...................... The town has attacked the board's deter, ruination as a usurpa- tion both of the town!s'~'~]-a'ti~--~Ct~n to rezone andlthe Planning Board's powers to approve subdivisions, and it further urges that the variances are not supported by the record. T~tE VARIANCES I)O NOT CONSTITUTE A REZONING. A board of appeals has no power to remake a zoning map under the guise of granting a variance (~carsda~e Supply Co. v. Village of Searsdale, 8 N Y 2d 325), for such a change con- stitutes an exercise of legislative power (Old Far~ Road v. Town of New. Castle, 26 N Y 2d 462; Matter of Levy v. Board of Stds. ~ Appeals, 267 lq'. Y. 347; Matter of Reed v. Boar~ of Stds. & Appeals, 255 N. Y. 126; 101 C. J. S., Zoning, § 283). variance may be regarded as a zoning amendment if it alters in any f~ndamental and substantial respect .the zoning scheme which is articulated in the ordinance (3 Anderson, American Law of Zoning, § 14.68, p. 61; Mayflower Prop. v. City of Fort Lauderdale, 137 So. 2d 849 [Fla. App.]; Bryant v. Lake County 2d SERIES lip Board of Zoning P. Builders, Inc. (the ~eet of street frontage ess than a year before It consists of a single ' in the single-family g each building lot an ~ 75 feet, here limiting t h.o_riz e _d~t~he__.c~nst r~ - ined 8,690 square feet T]i~"gra~/t was made ted on the theory that sions relating to plot ceding 100 feet, which y" under the circum- ony was offered at the ~AD2d690). After oved the applications, ~er economic injury if ~nce were enforced to roved plot frontage in '~ 75 feet." The board were substanda~i-~l' id substantially t6'the · rmination as a usurpa- ~.ion to rezone and the [ivislons, and it further d by the record. 'E A REZONINO. remake a zoning map (Scarsdale Supply Co. for such a change con- .r (Old Farm Road v. gtter of Levy v. Board er of Reed v. Board of . S., Zoning, § 283). A nendment if it alters in ect the zoning scheme 3 Anderson, American r Prop. v. City of Fort Bryant v. Lake County M'rR. OF coHALAN v. SCHERMERHORN [77 Misc 2d 23] 25 Trust Co., 284 N. E. 2d 537 lind. I). In d_e. tg_r. mining whether the zoning province of the legislatiVe bb-dy has been invaded, size is a significant factor (Va~ Deusen v. Jackson, 35 A D 2d 58, affd. 28 N Y 2d 608; Matter of Beach Have~ Jewisk Center v. Foley, 18 A D 2d 917, revd. on dissenting opn. below 13 N Y 2d 973; Gardner v. Le Boeuf, 24 Misc 2d 511, affd. 15 A D 2d 815), for the variance which most c~osely resembles an amendment' is one which applies to a large or extensive tract of land (3 Ander- son, American Law of Zoning, § 14.69). Applications for vari- antes which change the density or use of such-tracts have been characterized as" futile" and will not receive judicial approval (see Levitt v. Incorporated Vii. of Sands Point, 6 iq' Y 2d 269 [127 acres]; Scarsdale Supply Co. v. Village of Scarsdale, supra, [3.4 acres]; Va~ Deuse~ v. Jackson, supra [7.365 acres]; Gardner v. Le Boeuf, supra [19 acres]; Spadafora v. Ferguso~, 182 Misc. 161, affd. 268 App. Div. 820 [33 lots--13 houses]; 'Matter of Von Ger~chten v. Schermerhoru, 49 Misc .2(1 800 [14 parcels]; Matter of Northamptoa Colony v. Board of Appeals of Inc. Vil. of Old Westbury, 30 Misc 2d ~69, affd. 16 A D 2d 830 [5.5 acres]; Matter of Hiscoz v. Levine, 31 Misc 2d 151 [modification by planning bd.--37.4 acres]; Matter of Hess v. Bates, 17 Mist 2d 22 [40 acres]; 2 Anderson, New York Zoning Law & Practice, § 18.58; 2 Rathkopf, Law of Zoning & Planning, § 39-10). Research has revealed no case of judicial disapproval of a variance based on property size where' b~t '~ single acre was involved. Neither has it disclosed any determination holding that a density increase from three residences to five in a high density area constitutes a usurpation of legislative power. ~he instant variances do not amend the zoning ordinance Or change the boundaries of the district (Matter of Levy v. Board of Stgs. & Appeals, supra), radically alter the nature of the entire zone (Sinclair Pipe Line Co. v. Village of Richto~ Park, 19 IlL 2d 370), or the essential character of the neighborhood (101 C. J. S., Zoning, § 282), destroy the general scheme of the zoning law (Matter of Clark v. Board of Zooming Appeals of Town of Hemp- stead, 301 N. Y. 86), effect a substantial change ,in the compre- henslve .plan (2 Rathkopf, ~upra, § 39-10), seriously disarrange the zoning pattern, or defeat the general purpose of the zoning law (J~atter of Beach Have~ Jewish Center v. Foley, supra; Va~ Deuse~ ar. Jackson, supra). The single-family development' of the instant parcel based on the board's grants will not upset the zoning balance of the large residential zoning district in which it lies. Whatever its other deficiencies as an admi,~is- 25 77 MISCELLANEOUS REPORTS, 2d SERIES trative determination the board's action did not constitute an appropriation of the town's legisla.tive f.unction. T~E VARIANCES DO NOT CONSTITUTE AN UNAUTHORIZED SUBDIV~SIOI~ OF LAND, Although the variances~_were grantqd subject_.to~Plann~ing Board approval the town relies on Van Deusen v. Jackson (supra), to suP~p~'~¥~-~-~lqeory that the jurisdiction of the plan- ning agency was illegally infringed by variances ,based upon subdivision into five lots. In Van Deusen, a 7.365 acre parcel which lay in a 15,000- square foot district had originally been subdivided. The land was subsequently rezoned into a 40,000-square fodt district and the owner then obtained from the board of appeals approval of a map showing nine 25,000-square-foot lots. Characterizing the object of the variance as the "sanction of the develt~pment of his land as a subdivision at odds with the ordinance," the court found that "the other factor,s in the case, coupled with size, lead to the conclusion that thc variance * * * overran the powers of the respondents." (p. 61; emphasis supplied). In Van Deusen the owner sought to by-pass the Planning Board. Here the board 14as specifically conditioned its grant on approval by the Planning Boa;d. There size was a determinative ~actor. Here the parcel is small. That the instant owners must obtain approval from the. P_l~n- ning. Board..to subd{:~id~' l~t~]il~-lb'~"is beyond -dispute (see l~corporated kfil. of Nissequogue v. Meiccsell, 55 Mist 2d 1069, affd. 32 A D 2d .1029; Ashmill Homes v. Town'of Islip~ Iq'. Y. L. J., Dec. 4, 1969, p. 18, col. 2). The real issue is, which of the. two administrative agencies has priority of jurisdiction. The board has approved the applications subject to Planning Board approval, but the town urges that plat approval ~vas a prerequi- site to the variances. Rathkopf supports this view, reasoning that lot variances Of restrictions relating to nonexistent lots and lot lines mandate that "the proper procedural order in New York is first to secure approval of the subdivision and then to apply for such variances as may .be necessary" (3 Rathkopf, supra, § 71-49). The New Jersey .Supreme Court reached a similar conclusion, suggesting that upon an application to the planning board conditional on subsequent approval of a vari- ance, the "planning board may, with ,its approval express its nonbinding opinion as to whether the variance would be con- 'ducive to or detrimental to the planning scheme because of the undersize of a lot." (Loechner v. Campoli, 49 N. J. 504, 512; 3, 2d SERIES n did not constitute an function. ~d..subject_~o._~Planning ra~ Deusen v. Jackson iurisdictlon of the plan- variances based upon which lay' in a 15,000- subdivided. The land ~quare foot district and 'd of appeals approval )t lots. Characterizing ion of the development th the ordinance," the the case, coupled with overran [; emphasis supplied). ss the Planning Board. d its grant on approval a determinative ~ac[or. pproval from t~he Plan- s beyond' dispute (see rsell, 55 Mist 2d 1069, ,wn oflslip, N. Y. L. J., m is, which of the two ~risdiction. The board t to Planning Board proval was a prerequi- s this view, reasoning to nonexistent lots and cedural order in New ~bdivision and then to .~.ssary" (3 Rathkopf, 'eme Cou.rt reached a an application to the t approval of a .vari- approval express its triance would be con- ~cheme because of the ,li, 49 lq'. J. 50,1, 512; MTR. OF COHALAN v. SCHEBMEBHORN [77 Mist 2d 23] 27 see, also, Ryan v. Board of Adj. of Twp. of Woodbridge, 49 N. J. 520.) ~rad a subdivision ~plat ~hich contained the five nonconforming lots first been filed with the Planning Board that agency would have been obligated to conduct a public hearing to consider it (see Matter of Norther~ Operating Corp. v. Chamberlain, 34 A D 2d 686, affd. 31 N ¥ 2d 704). The town cites Matter of tVeinstein v. Plwnning Bd. of Vil. of Great Neck (28 ~. D 2d 862, affd. 21 lq' ¥ ,2d 1001), for the proposition tlmt a planning board is without power to approve a map which violates the zoning ordinance. Matter of Norther~ Operating Corp. (supra) establishes the doctrine that the failure of a planning hoard to conduct a public hearing mandates issuance of a certificate of approval after 45 days even if the plat is n0nconform~ng. Nevertheless, it is clear from the ,opinion of the .Court of Appeals that such certificate of approval does not relleve an applicant from compliance with local law. A planning board cannot Con- sider economic hardship in approving a'subdivis.ion map (Matter of Diamond v. ~qpecter, 39 A D 2d ~9:~2'i 'Matter of McEnroe v. Planning Bd. of Tow~ of Clinton, 61'Mist 2d 937) and neither the approval nor .the filing of a noncomplying map can change the zen.lng or create an estoppel that ~rill work such change (~hapiro .v. Tow~ of Oyster Bay, 27 Misc 2d 844, affd. ~20 A D 2d 850). Whether ]~atter of ~orthern Operating Corp.. can .be read to authorize a planning board to approve a nonconform- ing plat under section 277 of the Town Law is doubtful. It is more likely that the case represents judm~at reachon to the use of technicalities to delay processing of subdivision plats. Nevertheless, the practical result of such a certificate of approval is the ~qling of a nonconforming .subdivision ~aap. ·here ia_authority, for 3he order of priority' adopted by the owner. In Matter of Eriksen(N. ¥. L. J., Dec. 41 1964, p.' 22, ~col. 3, affd. sub nom. Matter of Erikse~ v. Commerdingcr, 24 A D 2d 934), the action of the Smithtown Board of Appeals in refusing jurisdiction 043 a variance application on the ground that the plot created ~by partition ,, had no legal standing ', was reversed. Al/hough there are some distinguishing features .to the case it certainly stands for the propOsitiOn that a ~oard of appeals may have jurisdiction to grant a variance prior to plat approval. (See, also, Adams v. Incorporated Vil. et Westhampto~ Beach, 71 Misc 2(t 579.) In Matter of Costa (Hibbard) (N. ¥. L. J., March 5, 1966, p. 20, eel 1), .the court held that while ultimate approval .of the Planning Board was 28 77 MISCELLANEOUS REPORTS, 2d SERIES required, it was not a condition precedent to an application for a variance under section 280-a of the Town Law. Compliance with modern day subdivision regulations for the submission of a plat requires an owner to obtain professional assistance at substantial expense and imposes upon a ,~lanning board both technical and philosophical evaluation of the multiple criteria set ~orth ,in the statute (Town Law, § 277; see Fullam v. Kronman, 31 A D .2d 947). Such study necessarily is time- consuming and sometimes results in delay of an extensive nature. Boards ot~ appeals, however, move with less formality and more dispatch. Requirements for both filing and technical assist- ance aide less formidable. The granting of a variance changes the zoning requirements applicable to the property it affects by permitting its use in a nmaner forbidden by the zoning ordi- nance (Balodis v. Fallwood Park Homes, 54 M.ise 2d 936).' The use then becomes a conforming .one (Industrial Lessors v.'~-t~y of Garfield, 119 lq. J. Super. 181). Lots which have been modi- fied ~by variance a~e thus conforming when ~he~'~pe~on a subdivision map. Consideration of s~ch a ~m~l~ {herefore is .not an exerci~ in planning acader~ics. A reversal of the order m which the instant owner made h. is submissions would have inflicted hypothetical zoning problems upon the Planning Board and involved it in a controversy over which it had no true jurisdiction. That jurisdiction has not been 'infringed by the instant application .to the Board of Appeals. THE R~SPONDENT BOARD'S CONCLUSI01~S An~ II~DEQ~ATEL~ s~PPon~n ~ ~s ~D~OS ~n ~ T~ ~oR~. The reduction in lot area, and ~he consequent increase in density, characterize as area variances the relief granted by the board (McInroy v. Grunewald, 14 A D 2d 547; Matter of gati~ v. Board of Stds. c~ Appeals of City of 1~. Y., 28 M~ise 2d 931, affd. 15 A D 2d 531). In order for such variances to stand the record must establish that the restrictions of the ordinance create a practical difficulty in the use of the property (Matter of Village of Bronxville ar. Francis, I A D 2d 236). The stand- ards set forth by Justice Mr~SR in Matter of Waehsberger v. Michalis (19 Misc 2d 909, afl& 18 A D 2d 921) continue to prevail as a principal guide for zoning boards and courts alike in making area variance determinations. If, however, an applicant can show that he suffered "significant economic injury" as a result of the area standards of the ordinance, he may be entitled to a variance (Matter of Fulling v. Palumbo, 21 N ¥ 2d 30). Thus an area variance may be predicated on 2d SERIES !ent to an application Town Law. on regulations for the to obtain professional. poses upon a ,~launing duation of the multiple ~aw, § 277; see Fullarn ly necessarily is time- of an extensive nature. ~ss formality and more and technical assist- of a variance changes he'property it affects lan by the zoning ordi- 54 M.isc 2d 936). ustrlal Lessors v. City whicl~ hav...e_.been. ben. they. appear on a h a map therefore is t reversal of the order bmissions would have ~n the Planning Board which it had no t:rue been infringed by the Is. onsequent increase in e relief granted by the I 547; Matter of gatin .V.Y., 28 l~,isc 2d 931, variances to stand the ~ons of the ordinance the property (Matter ) 2(t 236). The stand- 'er of Wachsberger v. ~ 2d 921) continue to g hoards and courts ~ons. If, however, an ' significant economic s of the ordinance, he f Fulling v. Palumbo, may be predicated on LETMAN v. MILAU ASSOC. [77 Misc 2d 29] proof o$ what would appear to be hardship standards (see 2 Anderson, New York Zoning Law and Practice, § 18.40).. What- ever the proof, however, the board is required to set forth in its grant the findings of fact upon which the variance is based, Such findings are necessary in order .to sabject a determination to intelligent judicial review (Gilbert v. Stevens, 284 App. Div. 1016). Theymay be based upon the board's own survey (Matter icl Levy v. Board of Stds. & Appeals, 267 'N. ,Y. '347, supra) or upon ~acts known to board members, .but in either such event the board ~nust set forth in its return the facts known to its members but not otherwise disclosed (People ex tel. Fordham Manor Ref. Ckurck v. Watsh, 244 N. Y. 280). Here the board found that as a result of the various offsite improvements which were to be provided, compliance with street frontage require- ments avould impose "unique additional cost" upon the owner who would suffer" economic injury ". The testimony proffered by the owner included no evidence of a financial nature and the , board's findings are in unacceptable conclusory language (Matter of Ennis v. Crowley, 12 A D 2d 999). Since an inspec- tion of the property was made before .the board rendered its grants, the court assumes the variances were granted on facts known to its members hut not reported in the decisions. There- fore, the matters will be remanded to the respondent board for the taking of such further proceedings as it .may deem necessary with reference to proof of economic injury and the making of findings of fact which are susceptible to intelligent judicial review. L~w LrT~S~, Plaintiff, v. Mm~ ASSOCL~TES, Ii~o., et al., Defendants. Mm~v Assocx~Tss, I~c., Third-Party Plaintiff, v. Enw~n F. Hxcx~rY, I~c., Third-Party Defendant. Supreme Court, New York County, January 28, 1974. Torts--apportionment of liability among tert-feaasrs--workmen's com- pensation-in action for injuries received on job, negligent nonsmployer defendant has right to apportionment as against third-party defendant employer as joint tort-feaasr--Dole v. Dow Chem. Co. (30 IV Y 2d 143) permits impleader of employer and rules he m~y be held proportionately liable to degree of his negligence even though Workmen's Compensation L~w would have barred recovery had deceazed employee's personal representative sand employer directly. 1. Plaintiff, injured in an accident on a construction site, during the course of his employment by the third-party defendant, sued defendants alleging that their negligence caused or contributed to his injury, and defendant Milan 324 8 NEW YORK REPORTS, 2d SERIES Opinion per BUREt, J. The significance of Matter of Lorenzo Estates (decided by the Temporary State Housing Rent Commission k[ay 6, 1959), cited by the appellant, lies in the fact that the l~ent Adminis- trator made the precise determinations discussed above, lie gave "careful consideration" to the entire record, and then concluded that "the intended renting is purely a commercial one and that the subject accommodation will not be used for residential purposes ". Accordingly, he issued an order exempt- ing the space "so long as it is not used for residentia! purposes ". The legal effect is quite different from appellant's assertions. The space becomes exempt when the Administrator finds that the conversion is genuine, not when the landlord claims an exemption. In connection with this view of the value of section 13, it is important to recall that in 1959 the Legis- lature, through the State Housing Rent Commission, amended section 13 "for the purpose of enabling the Administrator to determine the good faith of the conversion from residential to business space in order to avoid abuses ". (Note of Commission to Amendment No. 76 to State Rent and Eviction Regulations, § 13, eft. June 1, 1959, citing Matter of 114 East 40th Corp. v. Armstrong#, 14 l~isc 2d 984, 986-987, and Matter of Sipal Realty Corp. [Dunkers], 16 Misc 2d 827, 833.) We do not think that it is the law of this case that this court's prior action (Matter of Sipal Realty Corp. [Dankers], 4 N Y 2d 1026) sustaining the petition as sutlqcient in law now precludes consideration of the applicability of section 13. The allegations set forth in the petition before us on the occasion of that appeal were broad enough to include a statute not referred to at that time. Since the pleading was to be liberally construed on the motion to dismiss, and since the petition did not allege whether any conversions were made after the effective date of section 13, we find that the issue in respect to that regulation was not raised in this court. While we are in agreement with the Appellate Division, we believe that the order should be modified so as to grant a new trial, in order to allow the petitioner to introduce the section 13 · certificates secured from the Rent Administrator subsequent to the decisions of the Appellate [Division. At that trial the respondents would have an opportunity to challenge the valldity of the issuance of the certificates. Thus the trial court would be SCARSDALE SUPPLY CO. v. VIL. OF SCARSDALE [8 N Y 2d 325] 325 Statement of Case what amounts, if any, of rent are presently owed to the petitioner by the respondents. The order of the Appellate Division should be modified insofar as it dismissed the petition, without costs, and the matter remitted to Special Term for further proceedings not inconsistent with the opinion herein. Chief Judge DESMOI~D and Judges DYE, FROESSEL and FOSTER concur with Judge BUI~KE; Judges FULD and VAN VOORHIS dis- sent and vote to reverse the order of the Appellate Division and to reinstate the order of Special Term for the reasons stated in the opinion at Special Term and in the dissenting opinion at the Appellate Division. Ordered accordingly. Respondent. Argued October 5, 1960; decided October 21, 1960. Municipal corporations--zoning--in action for judgment declaring that rezouing of plaintiff's property was unreasonable and confiscatory, trial court erred ia failing to decide whether alleged confiscation and resulting depreciation in value of property, regardless of existence of nonconforming use, constitutes present invasion of property rights--application for variance not condition precedent. 1. In an action for judgment declaring that the rezoning of plaintiff's prop- erty was unreasonable and confiscatory, the trial court, although finding that plaintiff produced evidence which might be sufficient to prove that the property could not be practically or profitably used for residential purposes, dismissed the complaint, stating that, because of the existence of a nonconforming use, there was no justiciable controversy or deprivation of property by the zoning restrictions placod upon plaintiff's property. The trial court erred in failing to decide whether the alleged deliberate confiscation and alleged resulting depre- ciatinn in value of plaintiff's property, regardless of the existence of a non- conforming use, constitutes a present invasion on plaintiff's property rights. If it does so, the existence and maintenance of the ordinance and the threat to continue it under these circumstances would entitle plaintiff to equitable relief. Plaintiff is entitled to try to prove that the property is so situated that it has no possibility for residential and zoned uses and is most readily adaptable to use now precluded under the zoning ordinance. 2. Where the pleading~ allege that the ordinance in and of itself destroys the marketability and value of the property for commercial and residential uses~ an application for a variance is not a condition precedent to a judicial remedy. 326 8 NEW YORK REPORTS, 2d SERIES Points of Counsel Arvn:AL, by permission of the Court of Appeals, from a judg- ment of thc Appellate Division of the Supreme Court in the Second Judicial Department, entered February 15, 1960, unani- mously affirming a jud~ent of the Supreme Court, entered in Westchestor County upon a decision of the court on a trial at Special Term (6~oa~z M. Fa~m~Lb J.; opinion 15 Mise 2d 289), dismissing ~he complaint. Arthur F. Driscoll and John Drex for aplmllaut. I. The trial court was in error iu holding that while plaintiff is still in undis- turbed poss~ssion and use of the plot in question as a supply yard (a nonconforming use) it cannot maintain an aerie, for a declaratory judgment to void the rezoning, and that such action mast wait until after the nonconforming use is terminated. ( Seadley v. City of Rochester, 272 N. Y. 197; Euclid v. Ambler Co., 272 U. S. 365; Version Park Realty v. City of Mount Vernon, 307 N. Y. 493; Dowsey v. Village of Kensingto~, 257 N. Y. 221.) II. Thc Board of Trustees of the Village of Scarsdale did not have the power or authority ~o change the provisions of scction ~79 of thc Village Law (a State statute) to permit them fo rezone plaintiff's property by less than the favorable vote of all the members of the Board of Trusfees. (Matter of McAneny v. Board of Estin~atc & Apportionment of City of N. Y., 232 N. Y. 377; County Sec~irilies v. Scacord, 278 N. Y. 34; Adler v. Deegan, 251 N. Y. 467.) III. The trial court was in error in assuming that, because of the Village Home Rule Law, defendant was empowered to change thc unanimous vote required by sec- tion 179 of the Village Law. (Jewish Consumptives' Relic[ Soc. v. Toa,n of IVoodbury, 230 App. Div. 228, 256 N. Y. 619: People ex tel. Kieley v. Lent, 166 App. Div. 550, 215 N. Y. 626; People v. Comity of Westcbester, 257 App. Div. 769; Matter of Thorofare Developing Corp. v. Deegan, 134 Misc. 592, 226 App. Div. 871; Matter of Smidtv. McKee, 262 N. Y. 373.) IV. The fact that in 1956 the State Legislature amended section 179 of the Village Law eliminates the possibility that such power to amend was delegated to village boards. V. The unanimous :t;loption of a viHage ~de in February, 1957 did not affect the inherent validity of the rezoning of plaintiff's property in 1955. SCARSDALE SUPPI,Y CO. v. VII.. OF SCARSDAI.E [8 N Y 2d :/25J 327 Opinion per BUlgE, J. Richard A. Tilden for respondent. I. Thc trial court ~vas correct in holding that there was no showing of any unreason- able interference with or confiscatiou of any of plaintiff's present property rights. (Hcadley v. City of l~ochestcr, 272 N. Y. 197; Euclid v. Ambler Co., 272 U. S. 365; Vet,on Park Realty v. City of Mount Vernon, 307 N. Y. 493; I)owsey v. Vil- lage of Kensington, 257 N. Y. 221.) II. Appellant has an adc- quate administrative remedy and should bc required to exhaust such remedy before applying to thc courts for relief. (Ulmcr Park Realty Co. v. City of New York, 267 Apl). ])iv. 291; Va~gcl- low v. City of Rochester, 190 Misc. 128; O'Brietl~ Tral~sfcr ~ Star. Co. v. Incorporated Vil. of Great Neck, 2 A 1) 2d 690; tlyde v. Incorporated Vil. of Baxter Estates, 2 A D 2d $S9; Levitt v. Incorporated Vil. of Sa~zds Point, 6 N Y 2d 269; Mat- ter of Otto v. Steinhilber, 282 N. Y. 71.) III. Appellant failed t~ sustain the bm'den of proving that its property could no~ reasonably be uscd for any purpose for which it was zoned. (Dicker v. G~ddc, 11 Misc 2d 807; Shcpard v. Village of Skanc- ,telcs, 300 N. Y. 115; Matter of Eaton v. Swcc,~y, 257 N. Y. 176; Arvernc Bay Constr. Co. v. Thatcher, 27~ N. Y. 222.) IV. The amendment rezoning appcllant's proper~y was validly enacted. (Good Humor Corp. v. City of New York, 290 N. Y. 312.) V. Any invalidity of the rezoning of appellant's l)roperty in 1955 was effectively corrected by thc uuaninmns adoption ag a village code in 1957. BUI~KE, J. The controversy hereby remanded fei' at determi- nation of the material issues arises out of, and questions the validity of, the rezoning of real property owned by the plaintiff in the Village of Scarsdale. Plaintiff bas, since 1922, continn- ally occupied mnl used the premises (an interior plot of 3.4 acres) as a buihling supply yard ill a business zone district of the Iteatheote section of Searsdalc. However, iu October of 1955, despite plaintiff's written protest, the Board of Trustees of the village, via an amendment to the building zone ordinance, placed plaintiff's entire tract in a unique and ~zewly established Residence B District. Plaintiff urges that the board's euactmmtt (iu June of 1!)55, prior to the adoption of the zonin~ ordinanee) of Local Law ' 328 8 NEW YORK REPORTS, 2,:1 SERIES Opinion per Bu,a~E, J. No. 4 was void and unconstitutional. We agree with the courts below that, at the time of the commencement of the action herein, this error was effectively cured, and the question rendered moot (Strauss v. University of State of hr. y., 2 N Y 2d 464), because of the unanimous adoption, by the Board of Trustees, of the new Scarsdale Village Code, which expressly repealed the former ordinances, but retained the same zoning restrictions by a re-enactment. (See ch. 1, art. 1, § 1-1-2; and ch. 12.) On the trial plaintiff produced evidence which, it contends, demonstrates that the limitation and conditions imposed by the new zoning were intended to eliminate and impair the use and value of the property for any purpose whatever, other than its present nonconforming use. Plaintiff sought a declaratory judgment, therefore, that the rezoulng of its property was over- burdensome, unreasonable and confiscatory, and, therefore, unconstitutional. The trial court, although finding that plaintiff produced evi- dence which might be sufficient to prove that the property could not be practically or profitably used for residential purposes, dismissed the complaint stating, inter alia, that, because of the existence of a nonconforming use, there is no deprivation of property or justiciable controversy (citing Headley v. City of Rochester, 272 N. Y. 197). It is our opinion that the trial court erred in failing to decide whether the alleged deliberate confiscation and alleged resulting depreciation in the value of plaintiff's property, regardless of the existence of a nonconforming use, constitutes a present invasion on plaintiff's property rights. If it does so, the exist- enee and maintenance of the ordinance and the threat to con- tinue it under these circumstances would entitle plaintiff to equitable relief. (Dowsey v. Village of Kensington, 257 N. ¥. 221, 229; Euclid v. ~tmbler Co., 272 U. S. 365, 386.) The plain- tiff, having asserted an invasion of his property rights, must be allowed (although a nonconforming business use exists) to try to prove that the property is so situated that it has no possibility for residential and zoned uses, and is most readily adapted to a use now precluded under the zoning ordinance. (Vernon Park Realty v. City of Mount Vernon, 307 N. Y. 493, 4~9.) SCARSDALE SUPPLY CO. v. VIL. OF SCARSDALE [8 NY 2d 325] 329 Opinion per BUR~, J. The Headley case (supra), upon which the court below unduly relied, is quite distinguishable. In addition to the fact that it was not a zoning case, it was submitted on an agreed statement of facts which in no way indicated that the present value was diminished or that plaintiff was at al] damaged. In that case, plaintiff brought an action to declare unconstitutional a street- widening ordinance, which, in order to alleviate future condem- nation expenses, amended the official maps of the City of Rochester and thereby imposed a 25-foot setback on plaintiff's lawn. This court affirmed the dismissal of the complaint upon a finding that plaintiff was not a party aggrieved. As explained in Vaugellow v. City of Rochester (190 Misc. 128, 132-134), followed in S. S. Kresge Co. v. City of New York (275 App. Div. 1036), in the Headley situation no condition could be imposed requiring plaintiff to surrender the right to just compensation if and when the city should condemn the property. ' ' Therefore, when the Court of Appeals held that he was not an agg'rieved party, it could not have meant that he was not affected, but rather that he was not damaged, for the reason, as the opinion indicates, that inability to build in that strip did not depreciate the value of his property as a whole, nor interfere with any use to which he intended in good faith to devote the said strip. In the language of the opinion, written by Judge L~u~r/tx, Itead- ley's property could be ' put to the most profitable use by the erection of a building which does not encroach upon the small portions which may be used hereafter to widen the street. '" (Emphasis supplied.) On the contrary, in the case at bar, not only is there no oppor- tunity for condemnation compensation, but if there is evidence that the property cannot be reasonably adapted to any use per- mitted by the zoning ordinance, the ordinance may be found to be confiscatory. We do not agree that this wrong, i.e., invasion of plaintiff's rights, can be held to be remediless merely because of the existence of a nonconforming use. Defendant's argument that there is an administrative remedy (i.e., application for a variance) which has not been but should be exhausted is without merit. It is well established that such a burden may not be imposed upon a plaintiff as a prerequisite to the maintenance of an action challenging the constitutionality of the zoning ordinance. ([Timer Park Realty Co. v. City of 330 8 NEW YORK REPORTS, 2d SERIES Statement of Case 5ew York, 267 App. Div. 291, 293.) The Zoning Board does not have the power to review the discretion of the Board of Trustees (Dowsey v. Village of Kensington, supra, pp. 227-228; Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222) and thereby correct errors of judgment in zoning. (Matter of Otto v. steinhilber, 282 N. Y. 71; Matter of Levy v. Board of Standards ~ Appeals, 267 N. Y. 347.) Here plaintiff docs not seek to remedy thc effccl of a valid regulation, but rather to strike it as confiscatory and unconsti- tutional. In the latter situation, relief is afforded by means of a direct attack upon the terms of the ordinance (Matter of Otto v. Steinhilber, supra, p. 75). "Indeed, an application for a variance here * * * would be futile * * * since thc Zoning Board of Appeals has no power to remake the zoning map under the guise of granting a variance [cases cited]" (Levitt v. Incorporated Vil. of Sands Point, 6 N Y 2d 269, 273). Where, as here, the pleadings allege that the ordinance in and of itself destroys the marketability and value of the prop- erty for emnmereial and residential uses, an application for a variance is not a condition precedent to a judicial remedy. (Euclid v. Ambler Co., 272 U. S. 365, 386, supra.) Accordingly, the judgment should be reversed and the case remitted to Special Term, with costs to abide the event, for a determination of the material issues presented by this record. Chief Judge Dss~o.wn and Judges DYE, FULD, FROESSEL, VAN YooRms and FOSTER concur. Judgment reversed, etc. DOROTI~¥ BROW~, Individually and as Guardian ad Litem of RO~EaT Baow~ and Another, Infants, Respondent, v. Bl~oO~E ComxTY, Appellant. Arg-aed October 18, 1960; decided November 17, 1960. Coroners--autopsies--in action based on alleged unauthorized autopsy, Appellate Division properly determined that reasonableness of Coroner's CCh- duct (Code Crim. Pro., § 773) was question of fact for jury. 1. The body of decedent, a railroad worker whose duties included assisting in the assembling and coupling of freight ears, was found between tracks in a raiIroad yard with the left hand partially severed. In an action based on an BROWN v. BROOME COUNTY [8 NY 2d 330] :13l Poiniz of Counsel alleged unauthorized autopsy performed at the direction of a Coroner on the body of decedent, the Appellate DMsion properly determined that the reasonable- ness of the Coroner's conduct (Code Crim. Pro., § 773) was a question of fact for the jury. The reasonableness of the grounds for directing an autopsy may not in this ease be treated as a problem of law alone. Where the nature of the work, the duties of decedent, the site of the work and the scene of death disclose conditions which often accompany accidents resulting in death, there should be substantial reasons present to justify the need for an autopsy. Since the death was unwit- nessed and could have been caused by the injury to the hand, an autopsy would not lead to signs of criminality or point to a suicide. In thc circumstances, an appraisal of the sensibleness of the decision directing an autopsy involves a finding of fact. 2. Joinder of the infant children of decedent as plaintiffs was pernfissible. Brow~ v. Broom* ~ou~ty~ 10 A D 2d 152~ affirmed. APPEAL from a judgment, entered March 28, 1960, upon all re'der of the Appellate Division of the Sul)rcmc Court in the Third Judicial 1)epartment which (1) reversed, au the law aud the facts, a judgment of the County Com't of lh'omm~ County (RodEnT O. BR~r, J.; opinion 20 M'isc 2d 908), enter(,d upon a decision of the court granting a motion by defendant. ~nade at the conclusion of the trial and after the jm'y had r~ndcred a verdict in favor of plaintiff, and upon which tim court had reserved decision, to dismiss the complaint, and (2) directed entry of judgment for plaintiff in accord with the verdict of the jury. Charles P. O'Brien and Justin C. I"lannigan for appellant. I. The autopsy was legally ordered. (Gould v. Slate of New York, 181 Misc. 882.) II. Children are not entitled 1o judgment. { Gostkowski v. Roman Catholic Cbm'ch, 262 N. Y. 320; Trammell v. City of New York, 193 Misc. 356.) II1. Damagos were exces- sive and, if verdict is not set aside, it shouhl be rcdaced. (Voltz v. Blackmar, 64 N. Y. 440; Gra~w,~der v. Beth Israel Hasp. :lssn., 242 App. Div. 56; Gostkowski v. Romar Catholic Church, 237 App. Div. 640, 262 N. Y. 320; Gould v. State of New York, 181 Misc. 882.) William K. English for respondent· I. Au action for an unau- thorized autopsy is a well-established principle. (Foley v. Phelps, 1 App. Div. 551; Darcy v. Presbyteriaa llosp., 202 N. Y. 259; Grawunder v. Beth Israel Hasp. Assn., 242 App. Div. 56; Gould v. State of New York, 181 Misc. 882; Beller v. New York 8. Is a SEQR Hea~-ing Required for a Type I Action? NO. It is not a requirement that all Type I ac- tions be the subject of a SEQR Hearing. A hearing may be conducted on a Type I action that has been the subject of an EIS, at the discretion of the lead agency (see 617.8(d)). ; · · What are the Filing Re. quirernents For a Type I Action? The required notices and filing points for a Type I action are contained in Appendix B "Model SEQR Notices". Critical Environmental Areas l· What are Critical En- uironmental Areas? Under SEQR, local governments have the ability to designate specific geographic areas within their boundaries as "Critical Environmental Areas" (CEA's). Local agencies may desig.nate as CEA's tho*=, areas that are of exceptional or unique character. Qualities of a CEA may include: a. a benefit or threat to the public health or public safety (Benefit-water supply reser- voir; Threat-abandoned landfill, flood hazard area) b. a natural setting (fish and wildlife habitat, forested area, aesthetlc open space) c. a location having social, cultural, historic, archaelogical, recreational, or educational importance (historic building, landmark, waterfront access) d. an inherent ecological, geological, or hydrological sensitivity to change which could be adversely affected by any change (groundwater aquifer, endangered species habitat) ~ · How Do You Know ifa CEA. Exists Within the Area Of Your Project? All CEA designations must be filed with the Commissioner of DEC (see 617.4). The Division of Regulatory Affairs (50 Wolf Road, Albany, New York ,2233-0001) maintains a listing of all designated Critical Environmental Areas. 3,~ What Advantages Does CE.a, Designation Offer? Once a site has been designated as a Critical Environmental Area, that specific site becomes part of the statewide Type I list under SEQR. Any act!on occurring "who!ly or partially within or substantially contiguous to any Critical Environmental Area" (617,12(b)(I l)) is considered to be a Type I action for any local or state agency involved in that action. CEA designation assures that the procedures for Type I actions will be followed for each action. Specifically, involved agencies must designate a lead agency to coordinate the project's SEQI; review. Notices of the lead agency's determination of significance must be publicly filed with the ap- propriate filing points listed in the regulations (617.10(b) and (c)). In addition, agencies may: a. file with agencies that may be affected by the action, even though they al'e not jurisdictionally 'involved b. notify affected landowners c. provide for general public notice (posting, open files, public notices, etc.) Further. a Full ~nvironmental Assessment Form (EAF) must be used by the lead agency in determining the significance of an action associated with a CEA. The EAF is comprehensive in nature. As a component of the public record of a project, the E~AF provides a clear indication of the con- siderations made by the lead agency. Although Type I actions do not always result in a determination that an Environmental Impact Statement is required, they are more likely to re- quire an ElS than Unlisted actions· CEA designation does not automatically cause an ElS to be prepared for every action associated with the designated CEA.. It is important to recognize that CEA designation is a less restrictive option for en- vironmental protection than special zoning or easements:The process is unique in that it insures more public involvement and environmental review for activities in such areas. However, it does not place additional controls or land use restrictions on areas covered by the designation. 4e What is the Process for Designating a CEA? If a local government determines that a specific site needs the protection that designation as a CEA offers, it must: a. announce the intended designation through written public notice b. conduct a public hearing(s) c. designate the Critical Environmental Area d. file the designation with the Commissioner of DEC The designation will take effect 30 days after the filing with DEC. What are Some Optionz Procedures to Consider WheJ Designating a CEA.> a. hold a pre-designation meeting Prior to the formal designation of a CEA. it suggested that the local agency meet with the a fected landowners and the public. The meetin could serve to define the-following: 1.) SEQR provisions that will affect the revie of future actions 2.) geographic boundaries of the CEA 3.) critical community values to be affected '[ the designation 4.) adverse impacts likely to be incurred designation is not implemented, and .5.) management plans for the CEA. (Determi~ the compatible activities within and ad~ cent to the proposed CEA. and propo special mitigation measures, acceptable ir pact thresholds, or compatible future ~ tions). b. Prepare a Generic ElS A concise Generic ElS on the proposed Cf could provide an effective management outline present to landowners, the general public, and t decision-makers acting on the CEA proposal. (~ page B-39). B.3 78 32 NEW YORK REPORTS, 2d SERIES Points of Counsel C~T~rm~rr ~ll~t al., Appellants, v. Tow~ l~espondent. Argued February 13, 1973; decided 2larch 21, 1973. ' MuniciFal corporations--zoning__in action by owners of property to have Building Zone Ordinance declared unconstitutional as applied to their property, judgment properly granted in favor of defendant tuwn~-burden of proving zoning ordinance unconstitutional and confiscatory not sustained--evidence conllicttug and inconclusive as to whether property would yield reas.onable return and is reasonably adapted for residential use--plaintiff made no attempt to show that sale of property for permitted uses other than for one- family dwellings would not be possible and economically practicable. In an action by owners of property in a Residence D zoning distrlet against the town to have an article of its Building. Zone Ordinance which governs ReM- donee D uses declared unconstitutional as applied to their property, judgment was properly granted in favor of the town. Plaintiffs have not sustained their burden of proving the present zoning ordinance unconstitutional and confiscatory. Tho evidence is al: best conflicting and ineoneinsive as to whether the proper~y would yield a reasonable return and is reasonably adapted for residential use and whether the various nonconforming uses and the traffic conditions have so changed the neighborhood that a business use for the plaintiffs' property would not significantly alter its character. Moreover, the plaintiffs have made no attempt tu show that the sale of their property for one of the many permitted uses other than for one-family dwellln~ would not be both possible and eeanomie- ally practicable. Williams v. Town of Oyster Bay, 35.4. D 2d 982, affirmed. APP~,%~ from an order of the Appellate Division of the. Supreme Court iu the Second Judicial Department, entered Decembm. 21, 1970, which (1) reversed, on the law and the fac~s, a judgment of tbs Supreme Court, entered in Rrassau County on a decision of the court on a trial at Special Term (l~Ia~VrL L~vx~, J'.), declaring the Building Zone Ordinance of the Town of Oyster Bay nnconstitutional as applied to plaintiffs' prop- ert.~; and (2) granted ~udgment in favor of defendant declaring that the ordinance is constitutional as applied ~o plaintiffs' property. lIe~rp J. Boit¢l for appellants. I. Application of tbs town's zoning ordinance to the subject realty unreasonabh- denied · plaintiff hmdownor the profitable and beneficial use of' his la~d and amounted to a taking of property offensive to the State and Federal Cons&furious. (Averne Bap Conair. Co. v. T]latcher, 27S N-. ¥. os . .~2, People ez rel. St. zllbans-,.qpringfleld Corp. v. rated .?be .rullin, 'uffer (Pco 73; Ma Joh~ u'mir as appt~ City of J Fulling of the ful as Chi~ l[ams. Village a busi~ to hav, cr~s ~ their p The Road., Zoned , uess F. has ere~ ~STER BA¥~ /3. property to have to their property, urden of proving rained -- evidence yield reasonable ,leintiff mede no her then for one- cticable. :g d/strict against ich governs Rest- :fy, judgment wes t sustained their and eonflscatory. her the property 'sidential use and .... :iditions have so ' property would many permitted is/on of the ~ent, entered md the facts, ssau County (I~IAI~UEL W. of the Town ntiffs' prop- nt declaring o plaintiffs' the town's :~bly denied of his land the State v. Thatcher, id Co.rp. v. WILLIAMS v. TOWN OF OYSTER BAY [32 NY 2d 78] 79 ' Opinion per Chief Judge FWLn . (~onnell, 257 N. Y. 73; Tarrant v. Incorporated Vil. of Roslyn, '-'9 .hIisc 2d 238, 10 A D 2d 37, 8 N Y 2d 1129; Summer~, v. City of , ;,:ea Cove, 17 N ¥ 2d 307; Rockdale Constr. Corp. v. Incorpo- :-.~ied Vil. of Cedarhurst, 275 App. Div. 1043, 301 N. Y. 519; . -]~epard v. Village of Skaneateles, 300 N. Y. 115; Matter of /~t~li~g v. Palumbo, 21 N Y 2d 30.) II. Application of the ,wn's building zoning ordinance to the subject realty created ~:~ unnecessary and undue hardship and caused plaintiffs to uffer severe financial loss and significant economic injury. ;People ex tel. St. Alberts-Springfield Corp. v. C~nnell, 257 N. ¥. ;~. Matter of Otto v. Steinhilber, 282 N. Y. 71.) John M. Conroy, Town Attorney (Robert A. Shuster of coun- ~ei), for respondent. I. Plaintiffs-appellants have not sustained !.heir burden to overcome the presumption of validlty of the '3uilding Zone Ordinance of the Town of Oyster Bay and tho evidence presented was not sufficient to establish that the ordi- nance served no legitimate purpose and was unconstitutional as applied to the subject property. (Vernon Park Realty v. City of Mount Vernon, 307 N. Y. 493; Farmers' Loan & Trust Co. v. Siefke, 144 N. Y. 354; Shepard v. Village of Skaneateles, 300 N. ¥. 115; Walus v. Millington, 49 ~[ise 2d 104; Snyder v. Town Bd. of Town of Oyster Bay, 27 l'Iisc 2d 645; Matter of Fulling v. Palumbo, 21 N ¥ 2d 30; Gluckman v. Incorporated Vil. of Great Neck, 28 lq Y 2d 746.) II. The Zoning Ordinance of the Town of Oyster Bay is reasonable, constitutional and law- ful as it applies to the property. Chief Judge FnLn. The plaintiffs, Catherine and Gene Wil- liams, own property in a Residence D zoning district in the Village of Massapequa, Town of Oyster Bay. Unable to obtain a business use variance, they brought this suit against the town to have article VI of its Building Zone Ordinance, which gov- erns Residence D uses, declared unconstitutional as applied to their property. The plaintiffs' land is located on the south side of Merrick Road, extending from Fox Boulevard on the west to Bayview Avenue on the east. The western half, the subject premises, is zoned (as indicated) "Residence D," the eastern half "Busi- ness F." Outside of this business area, on which Mr. Williams has erected a number of small taxpayers, all of the property 8O 32 NEW YORK REPORTS, 2d SERIES Opinion per Chief Judge F~ in the vicinity on both sides of Merrick Road and in the neigh- boring side streets is zoned for residential use. On th~ north side of Merrick Road, a number of the residences contain the offices of professionals--doctors, dentists and la'~yers, all uses permitted in a Residence D district until 1971--and, in addi- tion, a realty office and a pet clinic. Across the way on the south° ;vest corner of Fox Boulevard and Merrick Road is a gift shop. In addition to one-family dwellings, other authorized uses in Residence D zones include two-family dwellings, churches, parks, libraries, museums, colleges, eleemosynary institutions and rooming or boarding houses, some of these requiring approval as a special exception by the town board or the board of appeals (Town of Oyster Bay Building Zone Ordinance, § 317). On the corner of the plaintiffs' residential property here involved is a residence formerly used as a realty office and now vacant. A witness testified on behalf of the defendant that Mr. Williams had refused his offer of $36,000 or his wife's of $38,000 for i~ for residential use. The rest of the property between this house and the taxpayers is empty. It had formerly held a model home for the residences which Williams had built on the rest of the block south of his Merrick Road property. He had moved this model house to a side street lot in order to get a better price--of $28,250 as opposed to $24,000 offered prior to its being moved. There was conflicting testimony as to whether or not the subject property could be sold for resi- dential purposes and as to whether the residential character of that part of Merrick Road had changed.. The court at Special Term decided in the plaintiffs' favor, declaring that, "[w]hile the evidence as to the salability of the property for residential use is weak the CoUrt is of the opinion that there is a substantial economic loss due to the residential zoning of the.property. Under the circumstances the premises should be zoned for business with a proviso that the building thereon be retained and used as a professional building to act as a buffer to the residential properties on Fox Boulevard and to the west on Merrick Road." However, added the court, since "[it] must fuuction in a judicial capacity and not as a legisla- tive body * * · [it] bolds that the [ordinance challenged] is unconstitutioual as applied to tile plaintiffs' property." The ., in the neigh- On the north ,ecs contain the lawyers, all uses 1--and, in addi- J way on the south- ad is a gift shop. ~thorized uses in . churches, parks, institutions and luiring approval board of appeals 3, § 317). [ property here y office and now defendant that or his wife's of ..... ~f the property It had formerly lianas had built 2oad properS. lot in order to ~24,000 offered ; testimony as ~ sold for resi- : ~tial character intiffs' favor, lability of the ~f the opinion he resldentia] the premises the building ~ilding to act oulevard and e court, since ';'. as a legisla- ' challenged] ~erty." The WILLIAMS ~,. TOWN OF OYSTER BAY [32 NY 2d 78] 81 Opinion per Chie£ Judge Funu ;lppellate Division reversed the resulting judgment and declared i.]~e ordinance constitutional. "In our opinion," wrote that t-curt, "the evidence was not sufficient to establish that the ~:r~linance served no legitimate purpose and was unconstitutional ~.~ applied to the subject property" (35 A D 2d 982). .~ zoning ordinance is confiscatory and unconstitutional only ~ it prevents a plaintiff from using his property ~or any pur- :~z;se for which it is reasonably adapted. The burden of, estab- fishing invalidity rests, of course, upon .the plaintiff. If the ! ~.~islatlve classification is" fairly debatable," it must be allowed ~o control. (Shepard v. Village o[ Skaneateles, 300 ~. Y. 115, !18; see, also, De Leo v. Leeraw, 30 bT Y 2d 824; Sa~amar Bldrs. Corp. v. Turtle, 29 N Y 2d 221, 226; Gluckma~ v. I~corporated izil. of Great Neck, 28 bT Y 2d 746; O'Kula v. Meade, 27 lq' Y 2d 526.) The considerations for determining the constitutionality of a zoning ordinance as applied to a particular owner's prop- erty are much the same as those prescribed for the grant or denial of a variance. (See 2 Rathkopf, Law of Zoning and Plan- ning [3d ed., 1972], p. 45-14; cf. Matter of Ja~yne Estates v. Ra~tnor, 22 ~ Y 2d 417, 425.) Since these considerations are dealt with much more fully in the variance cases, we may look to them for guidance here. The long-established rule for the grant of a use variance requires a showing that" (1) the land in question cannot yield a reasonable return i~ used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique circum- stances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning itself; and (3) that the use to be authorized by the variance will not alter thc essential character of the locality." (Matter o[ Otto v. Steinhilber, 282 bT. Y. 71, 76; see, also, Matter o~ North Shore Steak House v. Thomaston, 30 N ¥ 2~d 238, 243 ~ Il I I ....... ~1 I .supra;MatterofForrest v. Evershe~l, 7 bT Y 2d 256, 2~1-263; Matter of Crossroads Recreatio~ v. Broz, 4 N Y 2d 39, 43.)x In determining the ques- 1. We need not concern ourselves with the question of "unique circumstances" particularly where a claim of unconstitutionality is involved. 32 NEW YORK REPORTS, 2d SERIES Opinion per Chief Judge FULl) tion of a" reasonable return," it is not enough for the plaintiff to show .that "he would realize a #rearer return" under a less restricted use. (Matter of Crossroads R¢oreation v. Broz, 4 N' Y 2d 39, 46, supra; see, also, Levitt v. Incorporated Vil. of ~ands Point, 6 N ¥ 2d 269, 273.) As the court stated in the Crossroads Recreation case, the "only pertinent inquiry is whether the present allowed use is yielding a reasonable return. That it may not be the most profitable use is immaterial" (4 1~ Y 2d, at p. 46; see, also, Matter of 113 Hillside ~ve. Corp. v. Zaino, 27 N' ¥ 2d 258, 263). The plaintiff must, in addition, establish that no reasonable return may be had from any per- mitted use. "In order .to establish a lack of 'reasonable return '," the court wrote in Matter of Forrest v. Evershed (7 S Y 2d, at p. 262), "the applicant must demonstrate that the return from the property would not be reasonable for each and every permitted use under the ordinance ',. The court denied the property owners' right to a variance in part because they "did not even suggest that they bad explored the possibility of utilizing the property for * * * [various] permissible ~ E' Residential uses under the ordinance--or establish that the alternative uses were economically impracticable ~' (p. 262). Applying these principles to the case before us, it is mani- fest that the plaintiffs have not sustained their burden of prov- ing the present zoning ordinance unconstitutional and confisca- tory. ~Phe evidence is at best conflicting and inconclusive as to (1) whether the property would yield a reasonable return and is r. easonably adapted for residential use and (2) whether the various nonconforming uses and the trai~c conditions on l~Ier- rick Road have so changed the neighborhood that a business use for the plaintiffs, property, would not .significantly alter its character. ~oreover, the plaintiffs have made absolutely no attempt to show tha~ the~sale of their property for on.e of the many permitted uses other than for one-family dwelhngs 'plaintiff ~ier a less v. Broz, 4 ted Vil. of ~ tted in the inquiry is ble return. !erial" (4 ~. Corp. v. addition, ~ any per- casonable ershed (7 ~ that the each and rt denied - - ruse they ossibility rmissible lish that (p. 262). is maul- of prov- 2onfisca- ye as to urn and her the ,n Mer- .asiness y alter 'olutely one of 'ellings it would ~ pound ~ ect of a ;). Th/s andards WILLIAMS v. TOWN OF OYSTER BAY [32 NY 2d 78] 83 Opinion per Chief Judge FoT~ ~,~'ould not be both possible and economically practicable.. Indeed, ~ven the justice at Special Term felt that any change of zoning ~ a business use should be accompanied, as noted above, by a ' proviso that the building [now situated on the plaintiffs' prop- ,~'ty] be retained and used as a professional building to act ,s a buffer to the residential properties on Fox Boulevard and !o the west on Merrick road." This leads not, as the court f~und, ~,; the conclusion that the ordinance is unconstitut~.onal but that :he plaintiffs' proper avenue of' relief would be an application ~or a special exception from the town board or the board of appeals. Far different from the present case are those described in Jayne Estates (22 lq' Y 2d 417, 425, n., supra), where the subject property was ' ' in the middle of an area being used for commer- cial purposes, and there [was] almost no probability that these nonconforming uses will soon disappear. (Udellv. Haas, 21NY 2d 463; Stevens v. Town of Huntington, 20 N Y 2d 352; Mary Chess, Inc. v. City o[ Glen Cove, 18 lq' Y 2d 205.)" Here, the plaintiffs are almost entirely surrounded by residential property in which, unlike Jayne Estates, there is rem "danger of piece- meal destruction of the existing zoning scheme" (22 N ¥ 2d, at p. 425). It may be that the traffic on i~ferrick Road, combined with the presence of the taxpayers and the nonconforming uses on the north sldc, ~vill ultimately alter the character of the neighbor- hood sufficien'tly to entitle the plaintiffs to greater relief than the suggested special exception or variance. As it is, the plaintiffs have far from exhausted the possibilities of a profitable use for their property ~vhich would not contribute to the inroads made by the taxpayers upon the essentially residential character of the surrounding community. In sum, there is no basis, on the record before us, for holding the zoning ordinance, as applied to the plaintiffs~ property, confiscatory and unconstitutional. The order appealed from should be affirmed, with costs. Judges Bvn~r, BnEIT~L, JASEN, (]'ABRIELLI, JONES and '~VACH TLER concur. Order affirmed. WE, THE UNDERSIGNED, AS RESIDENTS OF SOUTHOLD TOWNSHIP ARE OPPQSED TO APPLICATION NO. 4091 EUGENE M. LACOLLA. THIS PETITIO~~ ~FFLECTS OUR OPPOSITION TO PROPOSED CHANGE IN STATUS FROM An~w.~ATIAL TO NON-RESIDENTIAL SPECIFICALLY - SAID PROPERTY AT NORTH SIDE OF MAIN ROAD (STATE ROAD 25) AT ARSHAMOMOQUE NEAR GREENPORT; COUNTY TAX MAP PARCEL NOS. 1000-56-4-24 & 19. NAME ADDRESS (ES) PHONE 77- WE, THE UNDERSIGNED, AS RESIDENTS OF SOUTHOLD TOWNSHIP ARE OPPOSED TO APPLICATION NO. 4091 - EUGENE M. LACOLLA. THIS PETITION REFLECTS OUR OPPOSITION TO PROPOSED CHANGE IN STATUS FROM RESIDENTIAL TO NON-RESIDENTIAL SPECIFICALLY - SAID PROPERTY AT NORTH SIDE OF MAIN ROAD (STATE ROAD 25) AT ARSHAMOMOQUE NEAR GREENPORT; COUNTY TAX MAP PARCEL NOS. 1000-56-4-24 & 19. NAME ADDRESS (ES) PHONE , TI~S AGRE~-'"--~,~2 made tho 10th day o£ 5eptes~ber, 1,o~, ~0~ ~C0~, rosid~g at kain Road, Southo!d, ~ow l'ork; ~G~ M, ~CO~, residing at 24 Garden Place, Bay Shore, N.Y.; ~CO~, ~.', poatd~¢ at ~7 Celia Drive, ~orlcno,:~....; D. OLI~R, roald~g at Mattltuck, 30~ A. ~COL~, ~ostd~g at 87-~1 129th St., Ricbano~ Hill, :I.Y.; ~d DOLO~ SARN0, residing at Homestead, Florida, bole~ all of th ~m~ptbnteem of J~H A. LaC0~, who died, intestate, a ~osidont of Southold, S~folk Co~ty, Now York, on JanuaryS2 19&C; W I T H E S S E T H In eonstder~tTo~ ~t~o-s~u--o~ One ~llar ~nd othe~ coed ~d valuable consideration, we, tho ~dorsi~od, do hereby agree as f~lows: l~The peal property o~mod by Joso-~h ~. LaColla ts ~o bo kept in- ,act by a'll ei~t of us until tho real ~u;ar, o ~axos ~o paid, tho mortgage is satisfied, an~ ~n~ 1;~ loan is paid in full, to ~other With whatever leggl obligations ~o outstanding. %~e a~eo that the tavern building now locauod on ~,.o with a 300 foot front and a 500 foot depth, is to bo par- cole4 off ~d to bo conveyed to THO~ ~COL~, ~ho boundary of said premises to be as follows: ,o. tn 300 foot a= a >00 ?oot depth from Main Road; East a distance of 500 fo ~t on a l~e 40 foot from the east wall of tho tavern; South by ~min !{oad,. &nd ~-~est a dlsta~ of 500 feet deep on a l~o 220 feet west of tho west-wall o~the tavern. 5~ ~ r~t D T~'~ 3~ There is to be c~veyed to CLOTHILEA D. CLI ;2~q tho bungalow ~o~ as "Tom~s - " B~ualow , together with a ~:-col of real property 125 feet by ~5 feet ~d a 20 foot right of' '.~ay ?'ovlding access ~d fr~ ~ho premises for in,ess and egress anu installation ~d ~lnten~ce popa~ ~d' replacement of public utilities. There is to be conveyed to J~H A. ~COL~, JR. tho bmugalow dosi~atod "his o~", together with a pal, col of real :~.o?o.~ 125 feet by foot ~d a 20- foot right of way providing acc .... :c sma fron tho [p ~emises for in, ess ~d o~ess and installation o.nd uaintcnanco ~epair ~d replacement of public utilities. In.addlt~¢n, D~ O~V~, DOLOR~ ~ARN0, JOHN A. LaC0~A ~d ~,q:: ~ k. LaC.SLIA are to be conveyed p~ools of real property 125 foot by 12j foot, ;together with the s~e right of way ~d utility oasonents over potions of the property to bo selected by then, or they may ~1 amount in cash ~ lieu of takln~ a deed. ~e Poma~der of tho property is to b8 aD?raised a~d sold and money is to be divi~d and shared equally by all ~ht ~dersi~ed. ;~o now buildLuzs are to bo orocuod until ...... this transaction is completed. T~o $00.00ro~._v~*~_ ~'rou insk~rmkco has been applied to ;~os, interest, and ~. 5. At tho time of settlement, a parcel of land ~aay bo sold, all expenses to c~ny the estate will bo paid, plus in~crcst at 5., to tho party or parties who nald s~e, then tho re~a~dor ;.~iil bo apppaised ~d divided equally between th~ heirs. GH~-.~.$ Ps., Gui)DY .A.~:o:~.a~-z- ~ I~w 18o Oz.~ Oou~T:~ ~o.a.~ (R,~. P. O. BOX 1547 P-..ZV~r4~D, ~ 1/901 February 16, 1993 Mr. Gerard P. Goehringer. Chairman Town of Southold Board of Appeals 53095 Main Road, Post office Box 1179 Southold, New York 11971 Re: Application #4091 Dear Mr. Goehringer: This is to advise that the La Colla family has been engaged in communications with various organizations concerning alternative uses, if any, of the parcel (other than those which are the subject of the application before the Board). We are currently conferring with Conservation Advisors, a consulting group, to formulate a plan which may satisfy both the Town and the owners of the parcel. We expect within the next thirty to sixty days to present this plan to the Town, and at that time, we will again communicate with you. Very truly yours, C~:j~ APPEALS BOARD MElVIBERS Gerard P. Goehringer, Chairman Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Richard C. Wilton Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD January 28, 1993 SCOTT L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 Charles R. Cuddy, Esq. 180 Old Country Road Peconic Plaza Riverhead, NY 11901-1547 Re: Appl. No. 4091 - Eugene LaColla Dear Mr. Cuddy: Please advise us of new developments, if any, and whether or not it is the applicant's intention to continue the above application. Thank you. Very truly yours, GERARD P. GOEHRINGER CHAIRMAN July 27, 1992 Zoning Board of Appeals Town of Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Re: Eugene La Colla - Use Variance Gentlemen: This is to advise you that the La Colla family has been in communication with a public benefit corporation and that corporation is considering the acquisition of the parcel which is the subject of the use variance. We need to allow appropriate time for this matter to be considered. We therefore respectfully request that the further hearing schedule~for Wednesday, July 29th be adjourned for a period of thirty (30) days. CRC:ejc Very truly yours, Charles R. Cuddy APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTF L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 1197! Fax (516) 765-1823 Telephone (516) 765-1800 July 1, 1992 Charles R. Cuddy, Esq. 180 Old Country Road (Peconic Plaza) Post Office Box 1570 Riverhead, NY 11901-1570 Re: Use Variance - Estate of Joseph A. LaColla Dear Mr. Cuddy: Attached please find a copy of the Board's June 30, 1992 Negative SEQRA Declaration with specific notations and a provision for a possible supplemental SEQRA review by a different agency (when and if this project develops to a county health or planning stage). The attached declaration refers to specific limitations as to certain upland areas and specifies mitigation measures offered by the applicant. Very truly yours, GERARD P. CHAIRMAN GOEHRINGER Enclosure 617.21 State Environmental Quality Review NEGATIVE DECLARATION Notice of Determination of Non-Significance SEQR Project Number ~.091 Date June 30 ~ 1992 This notice is issued pursuant to Part 617 of the implementing regulations pertaining to Article 8 (State Environmental Quality Review Act) of the Environmental Conservation Law. The ~n,ehnl~ mnwn B~rd of Apoeals , as lead agency, has determined that the proposed action described below will not have a significant effect on the environment and a Draft Environmental Impact Statement will not be prepared. Name of Action: Eugene M. LaColla . Appl. No. 409i SEQR Status: Type I Unlisted Conditioned Negative Declaration: []Yes t~:No Descri~t|on of Actl.on: ~o~St for a "change of use" frc~ residential to non-residen~ia~ use, tP~t area designaA orthe sketch map, a portion of which is zoned M-II and the r~maJ_ning acreage R-80 Residential. No construction is proposed at this time. Future activities will be only as permitted after review and issuance of approvals as de~d necessary at that time by the permit agencies (of the Town, State and County), and as further noted herein. Subject' 28+- acre parcel adjoins the following lands: (a) Hollister's Restaurant Richards marine contracting & storage business (c) Mill Creek Liquors, Inc. (d) The Pottery Place, (e) the Long Island Railroad to the north and east, (f) the Main State Highway to the south. Location: North Side of Route 25, east of Mill Creek (at Ar~e), near Greenport, Town of Southold, County of Suffolk. County Tax Map Designation 1000-56-4-19 & 24. SEQR Negative Declaration Page 2 Reasons Supporting This Determination: (See 617.6(g) for requirements of this determination; see 617.6(h) for Conditioned Negative Declaration) An Envirorm~ntal Assessment Fo~ (EAF) has been sukmitted and reviewed indicating that no significan~ adverse .envirormental effects will occur. No building construction or site changes are proposed at this stage of the project and the application pending before the Board of Appeals in this "use variance" application is strictly for a determination of a modification of use in this M-II/R-80 Mixed Zone District classification. The land area which has been designated for consideration in this proposed cha~ge or modification of use is upland area surrounding the existing adjacent c.'.~_rcial buildings and has been designated at 100 feet to mitigate any possible affects to wetland grasses or drainage area. The sc~e footage of land to be affected by use or building areas in this modification reqt~st is less than 60,000 sq. ft. The r~33_ning 26 acres will remain as open, SCenic easement areas. In the event a m~dification of We is granted, all future land activity and proposed construction (building, well systems, parking, leeching basins and other site plan considerations) will be subject to a fully detailed site plan and reviews by the Southold Town Planning Board, who shall also consider any n_ew develo[m~nts under the SEQRA procedures pending at the time of the site plan appl-ication. This project will be required to conf0nn to all applicable laws, rules and regulations pertaining to the use of this property, as well as obtaining approvals frcra the: (a) Planning Board, (b) Town Trustees, (c} County Health Department, (d) NYS Depart- ment of Transportation concerning curb cuts, if appropriate. If Conditioned Negative Declaration, provide on attachment the specific mitigation measures imposed. For Further Information: Contact Person: Gerard p. Goehringer, Chain~an Southold Town Hall Address: 53095 Main Road, Box 1179 Southold, NY 11971-1179 Telephone Number: (516) 765-.1809 For Type I Actions and Conditioned Negative Declarations, a Copy of this Notice Sent to: Commi~s!oner, Department of Envi~'onmental Conservation, 50 Wolf Road, Albany, New York 12233-0001 -A~prop-riate Regional Office of th~ De art '-- ........................ ~3.. ment of Environmental Conservation Office of the Chief Executive Officer of the political subdivision in which the action will be principally located. _ ..... _ .............................. Applicant (if any) c/o Charles' R. Cuddy, Esq., Box 1547, Riverhead, ....... NY 11901-1547 Other involved agencies (if any) ; Posted~on Town Clerk Bulletin Board ; town files P.O.Box 1247 Southold, New York May 5, 1992 11971 Board of Appeals Town of Southold Town Hall Main Road Southold, New York 11971 Re: Application No. 4091 Estate of LaColla Gentlemen: As homeowners in the Town of Southold, we vigorously object to the granting of a variance to permit commercial use of the property on the north side of Route 25, extending east of Mill Creek, more definitely known as District 1000, Section 56, Block 4, Lots 19 and 24 in the Town of Southold. Please register our objection to the issuance of this variance. Very truly you~, ~ ~mour B~ittman Adelaide Brittman Page 11 Public Hearing Southold ZBA 6/30/92 APPEAL # 4091 Applicant(s): Eugene M. LaColla Location of Property: N/S of Main Road (State Route 25), at Arshamomoque near Greenport, NY County Tax Map No: 1000-56-4-24 & 19 The Chairman reconvened the hearing at 7:58 p.m. CHAIRMAN GOEHRINGER: This is the reconvening of the Eugene M. LaColla hearing from May 7, 1992. Mr. Cuddy, is there anything you would like to add for the record? CHARLES CUDDY, ESQ: Yes, for the record, I am Charles Cuddy. I represent the applicant Eugene LaColla and also other members of his family. I just want to refresh the Board a little bit, that this parcel, which is approximately five (5) acres. On the VanTuyi map it is shown as 5.4 acres. This is essentially behind "Hollister's" and along the Main Road to the east of the pottery place. And essentially what we are asking for is that, that area which is approximately two hundred fifty (250) feet on the Main Road be changed use-variance wise so that we can have some business use of it. The reason for the application is rather simple. The LaColla's have had in their family, since 1960, at the time of their father's death, this parcel. The entire parcel is twenty-eight (28) acres and consists mostly of wetlands. Twenty-one to twenty-two (21 to 22) acres by our estimate, is actual wetlands. We propose that we would use the upland parcel, which is within a hundred feet of the wetlands, that is everything would be set back at least a hundred feet, to mitigate any environmental concerns. And we propose that we have some business use of what is now an R-80 zone. The zoning, as you may recall, is strange because the zoning is both M-II and R-80. I think that to go back again to what we are here about, is to talk about use variances. And I wasn't satisfied last time and maybe we hit with every member of the Board on all of the standards for use variances, so I would just like to review them quickly, if I may. The unnecessary hardship lulle differs from practical difficulties. Practical difficulties are for area variances -- the unnecessary hardship rule is for use variances. When that rule was set forth on the Otto v. Steinhibler case, the Judge indicated that there were three (3) standards that had to be complied with. First, you had to show that the land had no reasonable yield to it. Secondly, you had to show that it was a product--this application is a product of a unusual circumstances, and unique circumstances, that face just this particular parcel and this applicant. And third, you had to show that the character of the area didn't change. I want to go to the first standard because there was a question, that I think from at least one (1) of the members of the Board, as to what the failure of a reasonable return was. That is a lack of a reasonable return. The return to do, as I understand it, is simply this parcel. The return is based upon several criteria. One is the purchase price of the Page Z2 - LaColla Public Hearing Southold ZBA 6/30/92 MR. CUDDY (con't.): acquisition value. What we said about that was the LaColia's got this parcel in 1960, they got it at approximately forty-five thousand dollars ($45,000.00), they submitted the affidavit of appraisal in connection with that. That was for estate tax purposes. We use that as a basis for this parcel. We also talked about the present value and Mr. Stype is going to testify further about the present value. But, we indicated to you that we could have at best get two (2) parcels in the R-80 district. We get two (2) parcels, those parcels together would be sixty thousand dollars ($60,000.00). Also, one of the issues or standards that is used is what are the expenses for the par~cel. Well, there are no expenses for the parcel except for one thing--and that is taxes. The taxes that are involved from 1960 to 1992 are in excess of forty thousand dollars ($40,000.00). I say that because I have looked through the County records personally, and that is my personal knowledge that I am giving you. There is no income from this property, and that is probably the fifth thing. So, we are talking about purchase price or acquisition value, the present value, the expenses, the income, and the taxes. When you add that ali up, the LaColla's have approximately right now eighty-five thousand ($85,000.00) in this property. It is our position that the property as a whole and also the 5.4 acres, which is dealt with on the same basis, doesn't produce any reasonable return. We can't use it as it is zoned. And I want to remind you that this is a split zoned property. And the split zone isn't a casual thing because you are talking about M-II, which is heavy marine verses R-80 which is really a light density residential district. This isn't a quarter acre, half acre or acre, this is two-acre zoning. We can't get a use from this parcel. I would point out to you that when we get to the second criteria, which is unique circumstances, that there probably is no parcel in this entire Town that is zoned and in the locale, like this particular parcel. This parcel is between the railroad tracks and the Ma~n Road. It consists mostly of wetlands. It has probably a depth of two hundred (200), maybe two hundred and fifty (250), three hundred (300) feet at most in some piaces, and in some places one hundred and fifty (150) feet to a (100) hundred feet to use. The usable part of this property is really along the Main Road and that is the part that is zoned R-80, and that is the part that we are supposed to put houses in. And I think both brokers are going to testify that is just not a possibility. It is a figment of somebody's imagination to really talk without using that for residential purposes. But that is the way it is zoned and that is what we are faced with. I say to you that is absolutely unique. And even more, I think the character of the area is not at all changed by this. I would point out to you that one of the people last time that was up opposing the application, indicated that there was virtually an unbroken chain of commercial use from Greenport to Southold and this would complete that chain. I think that is irrefutable, that there is commercial uses along this road continuously. And we say to you that doesn't change the character of the area in the least bit. And, I would ask for relief because I think the LaCollas need relief. That is what this Board is about, that is what use variances are about and I would hope that the Board uses its Page 13 - LaColla Public Hearing Southold ZBA 6/30/92 MR. CUDDY (con't.):own knowledge, which it can do, of this particular locale. I would like to testify on behalf of the applicant, the broker Mr. Stype. ANDREW D. STYPE: Thank you very much Charlie. I am Andrew D. Stype. I own and operate under Stype Bros. Real Estate in Mattituck and I would just like to reiterate that the, I had appraised the property back in May. We had felt that there is a base law suit to the owners of about eighty-five thousand dollars ($85,000.00). There has been a lot of talk about the rate of return. We have to measure that in the equity in the actual land value. There are some out buildings on the property, there are some pretty small cottages that hardly have any value at all. The only value is going to be in its land, and also in its uses. Under residential use, there is hardly any value at all. It is a horrible spot to have any kind of residential property there. They have a lot of wetlands, and all around you, you have a commercial property, you have a restaurant, you have a marina, you have other things, which really hurt any kind of residential value. Your whole value is going to be in the commerical property, definitely. It has a higher rate of return, for an example, the owners, have a base value of about eighty-five thousand dollars ($85,000.00). If it has business use, it has a value close to two hundred eighty thousand dollars ($280,000.00), that has a rate of return of just over three hundred percent (300%). That is a heck of a difference in overall value. If it is under residential value, it is around sixty thousand ($60,000.00) tops and that is a loss to the owners. Any questions? CHAIRMAN GOEHRINGER: Mr. Stype, how long has this property been listed to your knowledge with brokers in the Town and yourself probably included? You probably do have.; You don't have a listing? _ MR. STYPE: No, I don't. I don't have a listing on the property. CHAIRMAN GOEHRINGER: Do you have any idea what other brokers have it listed for? MR. STYPE: I had spoke to one (1) other broker, they had explained to me that they had a listing on it for like just over five (5) years. CHAIRMAN GOEHRINGER: Do you know what the figure was that they were requesting? MR. STYPE: No, I don't. CHAIRMAN GOEHRINGER: Your feelings concerning the piece of property east of the building which is an out building to this particular piece and has really a negative residential use. How do you determine that? MR. STYPE: Well, you have your highest and best value if you are highly compatible. It is easier to have a higher value, ff you are highly compatible with all the other buildings in the area. If you have just a residential subdivision, it has a higher value, if it is Page 14 - LaColla Public Hearing Southold ZBA 6/30/92 MR. STYPE (CON'T.): also in an area that has a lot of homes around it ~bvioUsi~: 'i am also in the real estate sales end, ff I have somebody coming in our office and ff he wants a residence, he isn't looking Main Road. I mean, he has to have privacy, an awful lot of our buyers have a young family and they don't want to be on any highway. So, it is obvious you have a higher value, ff you are off the Main Road area. CHAIRMAN GOEHRINGER: 'Certainly down the road, east off excuse me, west of Albertson Marine, and so on and so forth, I think the sub-division is Willow Point, you have in there half acre lots that do front on the Main Road. Basically, the back of the houses are on the Main Road. With the piece of property that we have here, which is as you mentioned or I think Mr. Cuddy mentioned, is approximately two (2) lots, so I am assuming that it is in the area of one hundred and sixty thousand (160,000) square feet or more. Certainly, there is the ability to screen that from the road to a certain degree. I mean it is already screened, partially topographically and partially with the large trees around it. And, I do understand that under present wetland restrictions from both the DEC and from the Town Trustees that you would be required to probably be back from that pond seventy-five or one hundred (75 or 100) feet, whatever they would require at that point: But, I think there still is an ability to utilize that easterly parcel for residential purposes. I mean, that is just my opinion, I don't know how the other Board members feel. MR. STYPE: You have a good point, but also back in Willow Point it is, you also have a lot of open space in there. You have some open farm lands, you have some other homes in the area. I don't believe back in Willow Point you have any kind of business property back there near the water. CHAIRMAN GOEHRINGER: Does anybody else have any thoughts on that? Bob? Jim? MEMBER DINIZIO: Well, I think the sixty thousand dollars ($60,000.00) is still a little iow for .... CHAIRMAN GOEHRINGER: You mean something fronting on a pond? Is that what you mean? MEMBER DINIZIO: Yes. I mean, I went back there, there is two (2) residences there. Now whether they, it appeared to .me like they were going to be used, if they weren't used already. I see that as being a value. I want to be upfront with you. I see that as being a value and to my own mind, ff that were on the market for sixty thousand dollars ($60,000.00), I would be at the bank tomorrow. If it were on the market for eighty thousand dollars ($80,000.00), I would be there, because I did stand on the hill. And it is, to my mind, there is an offset with looking at the water and being on the Main Road. So, I just wanted to let you know that is how I am thinking, I think you could get two lots out of that and it could be more. MR. STYPE: It is highly possible. At this time we spent a market place though, it is awfully difficult to have to sell any kind of home Page 15 - LaColla Public Hearing Southold ZBA 6/30/92 MR. STYPE (con't.): sites. There is a tremendous amount of vacant land out there, that has been available a awful long time. The biggest reason why is because your resale is dropping so much. And there is not a lot of interest in any homesites at this time. We have a lot of places now, we have some lots that have sold twenty-five, thirty thousand dollars ($25,000.00, $30,000.00) a iot. CHAIRMAN GOEHRINGER: There is no contest on the fact that it is a very heavily traveled road and it is a very, very dangerous road, there is no question about it on that turn. And we have known that there are many, many accidents there. And I think one or two people were killed over the years, no question about it. There is no contest there. certainly agree with you. Is there anybody on the Board that has any specific questions of Mr. Stype? We thank you very much, Mr. Stype. Mr. Cuddy. MR. CUDDY: I would ask Mrs. Feavel, Mary Ann Feavel if she would testify. MARY ANN FEAVEL: I have a signed affidavit here that I would like to read. Mary Ann Feavel being duly sworn, deposes and says that: (1) I am a licensed real estate broker and have acted as an agent for parties selling real estate throughout the Town of Southold in hundreds of saies and also have bought and sold real estate in the Town of Southold for more than fifteen (15) years. (2) during that time I have become familiar with the LaColla parcel, that is the subject of the use variance application before the Zoning Board of Appeals. (3) I am familiar with the zoning of the subject parcel and the provisions of the Town Code effecting the parcel. (4) this twenty-eight (28) acre parcel located at Arshamomaque and identified by tax map numbers 1000-56-4-19 & 28 and the five (5) acre parcel which is part of that cannot be sold for R-80 purposes and cannot be used for any of the permitted uses set forth in the R-80 section of the Town Code, Article III. The parcel is substantially covered with wetlands, is adjacent to commercial uses and is located between the Main Road, NYS Route 25 on the south and the Long Island Railroad on the north. (5) based on its location on the Main Road between Greenport and Southold, in my opinion, the only viable use for this parcel is to make use of the upland area on a commercial basis. Otherwise, the property will not return any reasonable yield to its owners. In this connection, I reiterate that the LaColla parcel cannot be sold for R-80 uses, section 100-31, that is one-family detached dwellings, agricultural operations, as well as those uses permitted by special exception, a copy of which is annexed to my signed affidavit. (6) I make this affidavit not only based upon my years of experience as a broker, but aiso based upon my familiarity with the locaie in which the property is located. Noting that to the southwest of this parcel and to the west of this parcel, there are marina use MS. FEAVEL (con't.):districts and that the land immediately contiguous to the applicant's land contains business uses. It is my opinion, that without the relief requested, the parcel cannot be sold Page 16 - LaColia Public Hearing Southold ZBA 6/30~92 MS, FEAVEL (con't.): and cannot be used. Aside from the affidavit that I just read, I have gone back, I have looked at it again. It is my honest opinion that it does not have any economic use the way it is currently zoned. There is, to reiterate what Mr. Stype said, there is so much real estate for sale. People do not want to live or build on the Main Road. Now~ in reference to the Willow Point area, that is completely different from this area. It is not surrounded by commercial use, by a restaurant, by a marina, by a pottery store. It is a residential area, it has a private beach, it has a eanai where people can dock boats. It is completely different than a two (2) acre parcel located on Route 25 in Southold. CHAIRMAN GOEHRINGER: Well, let us take... I don't mean to stop you, let us take Dolphin Drive and Albacore Lane and Tarpon Drive. MS. FEAVEL:' Very nice section. Southold Shores. CHAIRMAN GOEHRINGER:Directly across the street. MS. FEAVEL: Correct. CHAIRMAN GOEHRINGER: Are there lots fronting on the road in those subdivisions. MS. FEAVEL: There are lots fronting on the road and there are no buildings, or no houses on any of those main road parcels. CHAIRMAN GOEHRINGER: Is that because of topography in reference to low ground water? Or is that because... : MS. FEAVEL: There are a couple of problems with that particular area. There is a heavy clay area of building. It is a very nice area, but you go into one road, it splits off, then you get into the community. It also has a beach, it also has its own private marina, if offers something other than two (2) acres on the Main Road. It is a residential area, it is directly across the street, but it is completely different. I just sold a house in there. When you are in there, standing on that lot, you don't know that there is a restaurant, there is a marina, it is completely different. CHAIRMAN GOEHRINGER: Go ahead, me just ask you one other question. in your office? I don't mean to mess you up. Let Have you had this property listed MS. FEAVEL: Mr. LaColla came into my office approximately a year and a half ago, .with a map, with everything, sat down and discussed it, give me the listing. I would not take the listing because I could not sell it. At that time, he sat and he said that he had had it listed with other brokers. I do not know who they were, I didn't ask, and Page 17 - LaColla Public Hearing Southold ZBA 6/30/92 MS. FEAVEL (con't.): not one phone call, not one offer, not anything. And he basically sat down and said "Help." And I said that you have got to get, we looked up the zoning, he had everytking with him, it was R-80. And I said, it is not goingto work. I cannot sell it. There are lots out there now that people can buy for fifty thousand dollars ($50,000.00), not located on the Main Road. It may not be a two acre parcel, but' the locale is much better. You can buy...possibly even under a half and acre for forty-thousand dollars ($40,000.00) . It just doesn't make sense the way it is currently zoned. CHAIRMAN GOEHRINGER: Is the figure that Mr. Stype is coming up with, if this figure is correct of sixty thousand dollars ($60,000.00) for the wooded area, east of the existing out building, which is the house. A conservative estimate, could you sell those lots for thirty, if there were two eighty thousand (80,000) square foot lots, could they be sold for thirty thousand dollars ($30,000.00) dollars easily? MS. FEAVEL: They possibly could be sold for the thirty thousand dollars ($30,000.00). I currently, right now, could not say, that I could pick up the phone in my office and call someone and offer it to them for thirty thousand dollars ($30,000.00). And I have people who are looking to buy property, and their No. i statement is, I don't want to live on the Main Road, find me something somewhere else. Even if I have to pay a little bit more, I mean, I have heard a couple of people in a room say that they, if it was that amount of money, that they would go buy it, but it hasn't happened yet. CHAIRMAN GOEHRINGER: The only reason I say that, in standing on the hill overlooking the pond, they are relatively spectacular, that is really a spectacular piece, there is no question about it... I mean the access again is a problem, there is no question it. But, that is a nice parcel. MS. FEAVEL: Okay, but you also have to keep something in mind, and I don't mean to be the least bit sarcastic-- we all live where we live now, we have our houses, we are not looking to buy. So what we think might be spectacular, it's not ours. We are not building a house there. If somebody offered it to me or if ~mebody gave it to me, I would probably say thank you, but no thank you. Because I personally wonid not want the parcel. (Tape turned over) CHAIRMAN GOEHRINGER: Is there anything .... I didn't mean to cut you off. Let me just see, are there any questions of Mrs. Feavel? I should point out to the Board or the audience, I had been ~ licensed real estate broker since 1975. I have taught real estate. [ teach zoning and I have known Mrs. Feavel for over twenty (20) years. I do not presently sell real estate and I have not sold real estate since 1986, okay. And just so that you are aware of that situation and these people stili have been under oath from the last meeting that we have had. And I have no questions of either Mr. Stype's credentials or CHAIRMAN GOEHRINGER (con't.): Mrs. Feavel credentials. They are both excellent, excellent brokers, that I have known over the Page 18 - LaColla Public Hearing Southold ZBA 6/30/92 CHAIRMAN GOEHRINGER (c0n't.): years. I have known Mr. Stype for twenty (20) years, too, or longer. Any other questions? (None) Thank you. MS. FEAVEL: Thank you. MR. CUDD¥: Mr. Chairman, I just like to put in affidavits -- a synopsis of the testimony of both Mr. Stype and also of'Ms. Feavel. CHAIRMAN GOEHRINGER: Thank you. MR. CUDDY: Also, I would like at this time to ask Mr. Eugene LaColla to give his testimony. CHAIRMAN GOEHRINGER: How are you again tonight, Mr. LaColla. must understand the purpose of my being up here is to ask these questions, so, that is basically, that is why I am doing it. Okay? You MR. EUGENE LACOLLA: I probably have to be sworn in or something? cHAIRMAN GOEHRINGER: No, you are still sworn in from the last hearing. MR. LACOLLA: I am going to read this (affidavit), okay? CHAIRMAN GOEHRINGER: Sure. MR. LACOLLA: I, Eugene M. Lacolla, being being sworn disposes and says that: 1) I am one of the owners of the twenty-eight (28) acre parcel located on the north side of the Main Road in Arshamomaque in the Town of Southold, having succeeded to my father's interest in the premises with my seven (7) brothers and sisters at the time of my father's death. In connection with the application made before the Zoning Board of Appeals, I represent my brothers, sisters, and myself, have submitted the entire parcel to many brokers throughout the Town of Southold over a period of twenty (20) years or more. And have never once received an offer to purchase the parcel at any price. I verily believe and submit that the part of the parcel as zoned R-80 cannot be utilized for any other purposes set forth in the R-80 district. And have therefore requested a use variance to permit commercial uses over the upland portion of the property, which is presently designated R-80. 4) I request that the Board note, that since my father's death in 1960, my brothers, sisters, and I have expended more than forth thousand dollars ($40,000.00) in real property taxes. The present yearly tax is thirty-four hundred dollars ($3,400.00) approximately, while the value of the reai property in 1960 was sixteen hundred dollars ($1,600.00) per acre or forty-five thousand' ($45,000.00) for the twenty-eight acres. The totai value of the usable portion of the parcel, today, is sixty thousand dollars ($60,000.00). Assuming a modest value for the wetland acreage, we have held this property for thirty (30) years without any increase in the value. In effect, there is no reasonable return for this parcel, which has been held in my family and retained Page 19 - LaColla Public Hearing Southold ZBA 6/30/92 MR. LaCOLLA {con't.): in pristine condition for more than thirty (30) years. (5)' At one time, the parcel had summer cottages used by members of my family. They had limited use. They were abandoned years ago and now are inhabited by raccoons. The locale is not residential in character, and not only have we not been able to seli the entire parcel for residential purposes, but the cottages could not be rented and there has not been any income from these premises. (6) In connection with this application, I again offer to maintain the substantial wetland area of this parcel in its natural condition and if appropriate, to place a scenic easement over the wetland and unused upland portions of the parcel. (7) In addition, I offer on behalf of myself, my brothers, and my sisters to dedicate a ten (10) foot strip to the Town or State, as the case maybe, which strip of land runs parallel to Route 25. (8) My family has retained this parcel essentially in its existing condition for more than thirty (30) years. We have gotten little or no use from the land and with its present zoning have no expectation of realizing any use for income from the parcel. Thex;efore, I respectfully request that the use variance be granted permitting us the business use of the few upland acres adjoining Route 25. Thank you. CHAIRMAN GOEHRINGER: Thank you, Sir. Can you just give me an idea of when the last time that the houses or the house and trailer were lived in? MR. LACOLLA: I would say the shack, we called it, that is over twenty-five (25) years since anyone lived in there. The trailer, I would say, probably around fifteen (15) years or more. I am not sure of that because my sister put that trailer on the property and rented it out and received an income from that. She supposedly said that she used the income to pay the taxes, but we were always asked every year to come up with our share. . CHAIRMAN GOEHRINGER: I thank you, are there any other questions of the Board members of Mr. Lacolla? Gentlemen? (No questions) Thank you, sir. MR. LACOLLA: Can I just say something? CHAIRMAN GOEHRINGER: Surely. MR. LACOLLA: I haven't lived out here in a long time, but I remember across the street where Southold Shores is now. That was all wetlands, too. It was all filled in and homes were built there. We didn't do that to our property. And when I heard Mr. Flynn the last time here, talking about the number of driveways and so forth, you know, he is in all the environmental things. I mean, to be fair, that is not fair to ailow that to be filled in and our property not to keep it as a residential. We are paying taxes on it. The Town has the best of both worlds here--collecting taxes for residential property, which cannot be built on because of the wetlands, and we are still suffering here. The other thing was that some years ago, I think that that is about twenty MR. LaCOLLA (Con't):(20) years ago too, they dredged Mill Creek, put pipes across our land and put on across the railroad tracks on what Page 20 - LaColla Public Hearing Southold ZBA 6/30/92 MR. LaCOLLA (con't.): is called Casaidy's. I don't know why they didn't approach us, to say "Do you want the fill?" Just bypassed us. I don!t understand this. I think, you know, we are all getting older as I said. I just turned sixty-five (65) and I am one of the youngest ones. I have a sister seventy-eight (78) years old. If one of us die, our children are not going to maintain this property. They don't want to get involved in this brouhaha, if that is how you say that word. CHAIRMAN GOEHRINGER: Pretty good. MR. LACOLLA: I am really pleading that you to see our point. Thank you. CHAIRMAN GOEHRINGER: Thank you. Mr. Cuddy? MR. CUDDY: Finally, I would ask Mr. Rumpf if he would give his testimony. MR. RUMPF: Mr. Chairman and members of the Board and members of the audience, who might be interested, my name is Tim Rumpf. I am a landscape architect. I am a principai in a firm called Design Properties Northeast. We have an office in Ronkonkoma. Just a little background, I don't know if I gave it last time, I have worked in Southold. I have been a consultant to the Town of Southold in planning matters and also in matters of landscape architecture. I am presently a member of Architectural Review Board for the.'Town of Riverhead. I am a consultant to the Town of Southampton and the Village of Southampton. When Mr. Cuddy and Mr. Lacolla called our firm with this unique problem, we looked at it, again from a planning point of view, noticing that there was a heavy marine, M-II zoning on the sort of western portion of the site. And looking at how that' related to that R-80 low density residential zoning, didn't quite make sense in that area because of the proximity to Route 25 and the Long Island Railroad. In many areas on Long Island, you will see a heavy use buffered by either by a lower intensity commercial use or a medium to high density residential use. We looked at both of those, immediately threw out the low to high density residential use based on Health Dept. requirements, and thought that a more general business or low intensity commercial use might have a better, more suitable impact on the site in terms of sanitary, water use, and also the proximity of the wetlands that we could hold the actual building far enough away and actually increase the setbacks greater than what the DEC and the Town Trustees might want. And so from a pure land use, land planning point of view, we developed the sketches, the conceptual site plan that you see in front of you on those bases. Backing up using the more intense commercial use around the M-II zone and going into that little hill area that I believe .the Chairman and one of the members was out on, using that as the more low intensity commercial use. And that is basically where we were. Any questions at all? CHAIRMAN GOEHRINGER: Any questions, gentlemen? Page 21 - LaColla Public Hearing Southold ZBA 6/30/92 MEMBER VILLA: Yes. I have a question. You know, we have heard the value of the land or what they purchased the land for and the taxes they paid, but there still is a piece of M-II land that is.left there between the restaurant and the other commercial piece there. What is the value of that, that has to have a significant value? MR. RUMPF: I think it might, but it is a very awkward piece to work with. MEMBER VILLA: It is a hundred by two hundred (100 x 200). That is a basic half-acre piece of property. MR. RUMPF: Yes, but I think for a commercial, a heavy commercial use, it is a very awkward piece to get access to, and to work with in terms of buildings and circulation. I mean that, that, I agree with you, but that is only one portion, I mean that is a half acre out of thirty acres. MEMBER VILLA: I grant you that, but we haven't heard any value attached to that piece of property. All we have heard is sixty thousand dollars ($60,000.00) versus the eighty-five that this thing is worth, but... MR. RUMPF: I might also mention to that value, I think that you are talking about raw land and I think they still have to go through the subdivision process, which could take them one to two (1 to 2) years and engineer's expenses, so I think they are not even adding on the expense of a planning and development process to get them to a buildable parcel that they could go and get a building permit for. So, I think that thirty thousand dollars ($30,000.00) is going to be a Httle bit more than just that amount per lot, based on getting the approval process and getting it approved to get a building permit. But, I agree, that half acre obviously is zoned M-II and that does have some value, but compared to the overall site, it is a little difficult. CHAIRMAN GOEHRINGER: I don't have any further questions of this gentlemen. Thank you, sir. Mr. Cuddy.? MR. RUMPF: I have an affidavit as well that I would like to submit. CHAIRMAN GOEHRINGER: Oh, great, thank you. Mr. Cuddy, could I just ask you a question, have you, most recently, done any subdivision of the land in the Town of Southold- a residential subdivision before the Planning Board? MR. CUDDY: I have residential subdivisions before the (Planning) Board, but I have not completed one of these. CHAIRMAN GOEHRINGER: Do you have any guesstimate on what it would cost to subdivide the easterly portion of this property into two (2) CHAIRMAN GOEHRINGER (con't.):lots? Bearing in mind that there woulc~n't be any roads, you know. Page 22 - LaColla Public Hearing Southold ZBA 6/30/92 MR. CUDDY: If there is no road, I would estimate that probably the cost would be between forty-five hundred and five thousand dollars ($4,500.00 and $5,000.00). CHAIRMAN GOEHRINGER: Okay, is there, either one of your two real estate brokers here, is there any estimate, in reference to what the hall acre of... First of all, it is seventy-five (75) in back of the existing out building on the easterly side, which used to be the pottery place. The parcel is seventy-five by two hundred (75 by 200), apart from the dog-leg so, is there any guesstimate in reference to, I am not referring to this in a trite fashion when I say guesstimate. I am referring to it in laymens term, but you know, that we can understand okay, on what the value of that parcel might be? MS. FEAVEL: Mr. Goehringer, when I looked at the map before, I meant to mention something when I was up there. As M-II zoning, yes, it does have value, the problem is competition. Already, directly across the street is Goldsmith's Marina Boat Yard. Unless Goldsmith's Marina Boat Yard would want to purchase that area, no one is going to bring in an additional, in my estimation, any kind of business or whatever that could go on the M-II when you've already got an established, for years, Goldsmith's. Now, the M-II zoning is not connected at all to the water, which, to me, makes no sense what-so-ever. M-II zoning, the best use for it, is to have some type of attachment to water, which this has none what-so-ever. In actual value, basically it would come down to be, if Skip Goldsmith wanted to buy it, it is what Skip Goldsmith would be willing to pay for it. Because I don't think anybody else would buy it, not with Goldsmith's directly across the street. What other kind of M-II could you put there that isn't already there. CHAIRMAN GOEHRINGER: We will certainly, in this environmental economy as things may come back hopefully, there maybe a change in that. I can understand your opinion on that. Mr Cuddy, would you mind if I asked Mr. Stype the same question? MR. CUDDY: No. MR. STYPE: Yes, Jerry, we have some property just, compared to the property, just to the west of it, opposite Port of Egypt Marina. It is on the other side of the street. There acre sizes and it is owned by this guy from Shelter Island, he has been trying to sell those properties now for a long, long time. And I think they are each about a hall acre in size and he is now asking eighty thousand dollars ($80,000.00) and he can't hand them away. CHAIRMAN GOEHRINGER: You are referring to two (2) open parcels that Port of Eg~rpt stores on a little bit... MR. STYPE: Right, like they have a lot of storage of boats on that side of the road. It is just to the east of that. Page 23 - LaColla Public Hearing Southold ZBA 6/30/92 CHAIRMAN GOEHRINGER: Okay, alright. Thank you. Yes. Mr. Cuddy. MR. CUDDY: Can I also venture an answer? CHAIRMAN GOEHRINGER: Surely. Although the figure you have given me concerning five thousand dollars ($5,000.00), is that primarily attorneys fees plus engineering or is that pretty much .... MR. CUDDY: Primarily they were survey, engineering, some attorneys fees, of course. They would be some filing fees. The Town has, I think exorbitant fees for small lots, but yes, that includes basically all those. CHAIRMAN GOEHRINGER: Okay, thank you. MR. CUDDY: The answer, I think to Mr. Villa's question, he asked, what kind of value would you associate with that hundred by two hundred piece, which is the hall acre. Your association for a little guy because my recollection that the M-II district unfortunately as pointed out by Mrs. Feavel is essentially a marina II district, heavy marina, but you have to have had associated with some sort boat operation. In other words you have to have a boat yard, you have to have a marina, and then they can use it for accessory use purposes. Then it has real value to it. In the abstract, my recollection again was that, one of the few things you could do is build a restaurant. Unfortunately, there is a restaurant within three hundred (300) feet of this, there is another side of the street. So, it is doubtful that somebody would build a restaurant. But I think abstractly, there is very little you ean do with that piece. I think you have to use it in eonnection with what the zoning says and again, it is my recollection that the zoning says you have got to use it for boat-type purposes. In other words, boat yards, marinas, and then you can make use of it. And you can't use this piece. Why it was zoned like that is a real good question. But it is zoned that way and I think it virtually makes that piece by itsell, not a good useable piece of land. CHAIRMAN GOEHRINGER: Thank you Mr. Cuddy. I vrill proceed now through the hearing and we will, if it is alright with you. Is there anybody else who would like to speak in favor of this application? Anybody like to speak against the application? Yes, Mrs. Flynn. How are you tonight. -You are still under oath from the last time. MRS. FLYNN: Yes. And while you were talking about brokers The question came up about Southold Shores and Mrs. Feavel said that when are in Southold Shores you don't realize that you are so close to the highway and other things. And I think that as a broker, and I have been a broker fo~ twenty-two (22) years now, the access for property, may it be the access or the approach, the traffic, the increased traffic, the safety of the people going to the property, MRS. FLYNN (con't.): leaving the property is of great value to the property. All we can say now, Southold Shores is all by itsell and it won't be hurt is wrong, because if the approach is being devaluated or changed to a heavy commercial use, as you pointed out, I most Page 24 - LaColla Public Hearing Southold ZBA 6/30/92 MRS: .~LYNN (con.,t.);,, e~x-i~,l~ tlu~k iL w~ effect the .value and the sdety and the health of our properties in Southold Shores. Incidentally, I only arrived ~te last ~ght from Was~gton D.C., I go shortly at the office, I lust ran home. But there was last year a house sold, just west of the ore,ass on the north side of 25 and I ~11 sub,t, ff I may tomorrow the proper Hber and page and sel~ng price of that price, but it was a very substantial price and the house was sold to our office by my assodate. So, I don*t want to ~sstate any prices, but I ~11 cheek it out tomorrow. Also, tai~ng about no houses sold on the Main Road, we just sold a house or closed on a house in todays market ~ last Marion on the Main Road and you would say, oh, that is ~ast MaEon what has t~s to do. Well, ff we would just tMnk about the ~n Road, I t~k that the trdfie is much heavier on 25 there than it is here, by us it is 25, because they have the additional trdfie from the North Eoad going out to the ferry. And the house was sold for one hund~d and seventy-five thousand dollars ($175,000.00). And, the property you were talHng about, wMch could not be sold for eighty thousand dol~re ($80~000.00), I t~k that property has a ditch as a frontage. Doesn't MR. STYPE: No. MRS. FLYNN: Is there only one entrance. MR. STYPE: It is all filled in. MRS. FLYNN: Yea, oh it is much poorer because it filled in land. Still and all I want to talk to many people and talking to people and explaining this, people are a little bit upset that this is a question of a variance, because I really think this is an application for a. change of zone and it doesn't belong here. Thank you. CHAIRMAN GOEHRINGER: Thank you. This lady right over here. Ma'am, were you with us for the last hearing. No, I wasn't able to be here. MRS. FLYNN: Oh yea, excuse me, I was not west of the overpass, it was west Mill Creek, the house that was sold. So this house which was sold for quite a parcel of land, it backed up to the railroad in the back, it had the marinas across the street, Port of Egypt. It had the restaurant across the street. CHAIRMAN GOEHRINGER: This was the old antique shop, right. MRS. FLYNN: That is right. It was old. It was nothing. BOARD SECRETARY: It is all zoned M-II right there. MRS. FLYNN: And it also in our office and would like to give you the exact liber and page and selling price, and mortgage information. I can pull it up for you tomorrow. Page 25 - LaColla Public Hearing Southold ZBA 6/30/92 CHAIRMAN GOEHRINGER: Thank you very.much. Could I ask you to raise your right hand and do you solemnly swear that the information you are about to give us is the truth to the best of your ability? do. CHAIRMAN GOERHINGER: State your name please. MS. GAIL STARKIE: My name is Gall Starkie and I live on Parker Drive. CHAIRMAN GOEHRINGER: How are you. ~MS. STARKIE: And I have several points that I would like to make tonight if I may. Several points that have been made before, I'm sure. I missed the last meeting because of illness, I did write a letter in. I am concerned that a portion of the road known as "Tavern Turn" and that in the last year there have been two (2) fatalities. Supervisor Harris has recently indicated that a DOT investigation regarding the curb is already under way. Allowing a commereiai venture in this spot would create unnecessary safety hazard. One only has to do visual inspection, in fact, Mr. LaColla said it himself, of the area to see that it is a virtual wildlife preserve, created by nature over the years. The property in the adjacent waters should not be desegregated by the planting of shops. If we look at the number of vaeant shops in Southold Township and the businesses that close weekly, there is an almost empty shopping center on the North Road by Burn's Delicatessen, Steriington Commons in Greenport is another example of our empty, unused, overdeveloped, commercial ventures. Feather Hill only recently filled there empty shops and that took several years and I am sure some changes in the rental agreements. The LaColla further state that they cannot sell. They are not alone. I personally own a lot that I cannot sell in Greenport. It has been on the market over three (3) years and it has been reduced substantially. In fact, I was offered thirty thousand ($30,000.00) less than I paid for it recently. But, I don't have the luxury of appealing for a zone change. I can choose to sell it at a loss or I can wait. They should have the same choices. Also, I question about the Master Plan and what is happening there and what are the recommendations. I like and many others like me, moved to Southold because of its beauty and its closeness to nature. If I wanted to be close to shopping centers and more shops, I would have stayed to the west. In addition, I have a petition that we put together, which states "we, the undersigned, as residents of Southold Township are opposed to application No. 4091 - Eugene M. LaColla. This petition reflects our opposition to proposed change in status from residential to non-residential specifically said property at north side of Main road (State Route 25) at Arshamomaque near Greenpol~t, etc. and that has thirty-trine (39) signatures, which I submit to you. CHAIRMAN GOEHRINGER: Thank you Mrs. Starkie. We now go to the Mr. Flynn. Mr. Flynn, could you just give me an approximate time limit on how long you think you are going to be speaking. Page 26 - LaColla Public Hearing Southold ZBA 6/30/92 MR. FLYNN: Well, this is a rather, I have to make a rather lengthy presentation, because this is a rather involved question here and there are definite parameters, governing granting of a variance and I would like the people here, who may not be informed, the people in opposition, may not be informed to realize these parameters in case of litigation in the future. CHAIRMAN GOEHRINGER: The reason why I ask you that question, I just want to take a short break prior to your discussing, your discourse, if that is all right. Yes sir. I would like to say something. CHAIRMAN GOEHRINGER: Surely. Can we just take a short break and we will right back with you, unless you are leaving. Well, no, it is just very, very short. CHAIRMAN GOEHRINGER: Sure, go ahead, were you here the last time sir. MR. BRICKMAN: My name is Mr. Brickman. I live on Tarpon Drive. I am not very familiar with the procedure here, so you will have to excuse me. I just want to reiterate that my wife and I feel very strongly about this. What Mrs. Starkey had said is true, we feel very strongly about this changing of zoning, we also moved here, we also moved from a crowed area in East Northport out here, because we like it out here. I did business out here. And to have commercial right across the street from us, we really don't want it, we really don't want it. Things are bad enough. I have property too in East Northport that I can't sell. I have stores that I can't sell, I can't rent. Things are bad. Why put the screws to us because he has hardship. We all have hardship. And basically, you've got to go with the flow. And that is basically what I want to say. CHAIRMAN GOEHRINGER: Thank you sir. With everybody's indulgence, we will take an approximate three (3) minute recess. We will right back to you in two (2) minutes. Okay. (Short Break. Recenvened) MR. MITRANO: I own Greenport Pottery. CHAIRMAN GOEHRINGER: You had spoken the last time, right? No I didn't. SECRETARY KOWALSKI: How do you .spell your last name please? CHAIRMAN GOEHRINGER: How do you spell your last name. MR. MITRANO: M-I-T-R-A-N-O. I purchased the property September of 1980. Page 27 - LaColla Public Hearing Southold ZBA 6/30/92 CHAIRMAN GOEHRINGER: Could you raise your right hand also. Do you solemnly swear the information you are about to give us is the truth to the best of your ability. I was just going to tell you that. MR. MITRANO: I do. I have lived on that piece of property since. To the best of my knowledge for the last thirty or more years, it has been primarily a residence. Square footage wise, it is approximately one-third or less devoted to commercial use. And, as far as I know, it has always been that way. As far as the buildings behind me, they have been occupied in the past, since I have been there. I think since 1980 to approximately, I don't remember exactly, to about 1984, both buildings were occupied. In fact, one building is now being occupied, the trailer is occupied right now. The idea of being sandwiched between a commercial development and the Main Road is pretty unappealing, obviously to me. So, I just need to, you know, oppose this. CHAIRMAN GOEHRINGER: Thank you. Any questions of this gentleman? Thank you sir. Mr. Flynn, you are on. As the last time, you are under oath, the same as last time. We respectfuily request that any innuendos that are counter-productive, that, you know, not reflect on and so on and so forth. MR. FLYNN: You will have to be the judge of that. CHAIRMAN GOEHRINGER: Okay, I will stop you. MR. FLYNN: Now, I have divided this statement into three or four (S or 4) parts. The first concerns ... CHAIRMAN GOEHRINGER: Just turn it down a little bit, the mike. That is great. MR. FLYNN: Incidentally, I will provide you with a copy of this. CHAIRMAN GOEHRINGER: Oh, that is great. Thank you. MR. FLYNN: The first portion deals with the application and supporting testimony. Applicant states that a use variance is sought on the upland portion of the subject property for the reason that,"the property cannot be used as zoned". The business zoned parcel has utility as zoned, witness other parcels contiguous thereto. Any claimed hardship would be self-created. As for the residentially zoned portion, it is, and has been used, in part, for this purpose. To understand the concept of use, or utility, the basis for value, must be understood. The components of value are: utility, scarcity, demand, MR. FLYNN (con't): and purchasing power. Foremost among'these is utility. If a property or object has utility, it has value. Conversely, if value is ascribed to a property, it must have utility. The applicant's appraiser has ascribed a market value of some sixty thousand doliars ($60,000.00) to the residentially zoned portion of the property for which a variance is sought. Parenthetically, this value Page 28 - LaColla Public Hearing Southold ZBA 6/30/92 MR. FLYNN (con't.): was ascribed on an "as is" basis. The property unsubdivided, unapproved. In addition, the area of their requested variance includes a vacant parcel of some twenty thousand five hundred (20,500) square feet in M-II zoning, a parcel which has obvious value. For the the subject property to have the value ascribed or more, it must have utility as zoned. Based on the testimony introduced by the applicant's appraiser, the claim that the property has no use, as zoned, is negated. Under reasons for appraisal, hardship is claimed, ostensibly because the parcel cannot be sold for residential use as zoned, and will not provide a reasonable yield if use is restricted to those permitted by the zoning. Ali of the property for which a variance is requested is not zoned for residential use. Further, the applicant's appraiser has provided an estimate of market value. Market value is the price a property will bring is exposed to the market; i.e., sales price. Applicant has admitted property can be sold for residential use. Hardship is stated to be unique because of the property's configuration, location and because of the claimed inability to use the property for permitted uses effectively confiscates the property. All properties are unique to some degree. If the subject is indeed unique by reason of configuration and location, these factors existed at the time of purchase and should have been apparent to the informed purchaser upon whom market value is predicated. Undoubtedly, these factors were reflected in the property's purchase price. The claim of inability to use the property for permitted purposes is contradicted by the market value ascribed. There is an established principle in zoning law that hardship cannot be recognized if created by the 'owner or his predecessors in title. Should such a hardship exist, it existed at the time of purchase and was reflected in the price paid. Before the Board of Appeals, we are constantly exposed to the sorry spectacle of owners who have willingiy and wilifully purchased marginal properties with inherent hardship at a nominal price who then attempt to obtain an unconscionable profit by means of a variance. Somehow these applicants remind me of the youth who murdered his parents and then sought pardon because he was an orphan. The claim is advanced that the inability to use the property for permitted uses effectively confiscates the property. Confiscation, if it exists, must be proven by dollars and cents analysis of each permitted use. Again, parenthetically, the off-hand estimates of value that were produced here, this evening and on the prior occasion, in no way meet the dollars and cents proof required, and must be exhaustedly anaiyzed for each of the permitted uses. The fact that the property is, and has been used for permitted uses, and market value ascribed, refutes the claim of confiscation. Confiscation is defined by the courts, states that economic value or all but a bare residue of the value of the parcel has been destroyed and only then is it taken established. In effect, the value remains, there is no confiscation. (Tape changed) MR. FLYNN (con't.): of obtaining a variance. The claim is advanced that the variance, if granted, would not change the character of the district because business uses presently exist at the site and at nearby parcels. If business uses already exist on the site, the clahn that property cannot be used as zoned is negated for those portions of Page 29 - LaColla Public Hearing Southold ZBA 6/30/92 MR, FLYNN (con't.) the property. The present business uses antedate zoning. Because business use exists here and at nearby properties cannot be used as the pretext for the endless proliferation of business use. Such use must terminate somewhere. It has been held that the mere fact that the premises for which a variance is sought is contiguous to a district where such use is permissible is not grounds for authorizing such use. Business uses cannot be permitted to spread endlessly like a cancer because other business uses, no matter how badly planned, exists in the neighborhood. Should this case then set a precedent for business use opposite on the southerly side of Route 25? The Town Board has expressed its intentions to confine business uses largely to hamlets, and to eliminate strip zoning. These were among the recommendations of the US/UK Task Force which are now considered in the proposed revision of the Master Plan. Granting this variance would certainly conflict with these recommendations. And, again, parenthetically, the strip zoning that exists, east of the overpass and on to the Village of Greenport, the Town's Planners said that that was so environmentally sensitive, it should be kept as open space. The Town Board, in its wisdom, rezoned it for industrial and commercial use, including properties which are actually in the wetlands. In an obvious attempt to confuse the issue and to make the owner's plight to seem desperate, applicant has introduced testimony as to the value of the property were the variance granted and property to be valued at its highest and best use level. The courts have long held that an applicant is not entitled to a variance based upon the maximum potential value of the property, should the variance be granted. Again, parenthetically, highest and best use is not an issue here, it is excluded from consideration. Further, in an obvious attempt to gain the sympathy of the Board, testimony was introduced as to the ages and financial status of the owners. The grant of a variance runs with the land and is not a personal license given to the landowner. Accordingly, any unnecessary hardship, which would suffice to justify the granting of a variance must relate to the land, not to the owners themselves. Mere personal hardship does not constitute sufficient grounds for the granting of a variance. Now, General Considerations. In the granting of a variance, the public's health, safety and welfare and other general influences and conditions in the neighborhood must be given consideration. In the case of National Merritt, Inc. vs. Robert Waist, et.ai., The Court of Appeals held: "However, if there is a legitimate purpose for the ordinance and it is necessarily related to the public health, safety, and welfare of the community, financial loss is insufficient to compel the granting of the variance." While no such proof has been advanced by the applicant, the decision emphasizes the overriding consideration given to the public health, safety and welfare. The highway safety hazards relating to the subject property MR. FLYNN (con't.): are already a matter of public record and concern. Granting the variance requested would serve to compound them. Lots 19 and 24, in their entireties, contain large areas of wetlands. While the areas for which a variance is sought comprise only part of the total area, it is in close proximity to the wetlands and critical environmental areas, and any improvement would probably have serious detrimental effects thereon. Lot 19 appears to be largely wetlands. The easterly portion of the area for which the variance is Page 30 - LaColla Public Hearing Southold ZBA 6/30/92 M__R. FLYNN (con't.): sought is zoned for R-80 use and is heavily wooded. The northerly portions of Lot 24 are largely wetlands. Due to the environmental and ecological considerations, both Raymond, Parish, Pine and Weiner, the Town's consultants for the Master Plan, and the Long Island Regional Planning Board recommended that the undeveloped portions of these lots be preserved as open space. In accordance with these recommendations, the R-80 use provided for in the Comprehensive Plan is a reasonable. one. It should he noted that the property to the north, in the Arshamomoque Pond area and to the south, the former Sage property, are classified as critical environmental areas. The pond on the easterly part of Lot 24 lies between the Arshamomoque Pond and the Sage estuary, creating a form of greenbelt from Long Island Sound to Peconic Bay. Under these conditions, the subject application should be subjected to intensive SEQRA review. Now, the standards of proof required for use variance. The burden of proof lies with the applicant. The bench mark case setting the standards of proof required for area variances is the Court of Appeals decision in the matter of Otto vs Steinhilber. Coincidentally, this case involved property located on Long Island. This decision has stood the test of time, actually since 1939, and the standards set have proved to be so logical and defensible that they have been adopted in many other states. The Court held: before the Board may exercise its discretion and a variance upon the ground of unnecessary hardship, and grant, excuse me, a variance upon the ground of unnecessary hardship, the record must show (1) the land in question cannot yield a reasonable return if used only for the purpose allowed in that zone; (2) that the plight of the owner is due to Unique circumstances and not to general conditions in the neighborhood, which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character of the locality." Based on Otto and other decisions, and this is most important, all of these elements must be found conjunctively. A failure to establish any is fatal. You cannot pick and choose any one of these criteria, they must all be met. 2) Hardship is financial hardship and must be supported by dollars and cents proof for each of the uses permitted by the ordinance. 3) Hardship is the sine qua non in submission of the required proof. If I may be permitted to say so, the phrasing "a reasonable return" is somewhat imprecise. Return is usually construed as the income earned based on the rate earned by income properties. Such a return is not typically sought for residential properties. The return to the owners of such properties is generally measured based on the utility of the property and the amenities it affords. These factors are reflected in a property's market value. An indication of the Court's thinking MR. FLYNN (con't):may be found in Otto where was held: "In the case at bar, the applicant has failed to introduce any evidence whatsoever to show that the portion of his land which is located in the residential zone, may not be reasonably employed in conformity with the zoning regulations governing, in that case, Class "A" districts." Precise definitions of reasonable return are difficult to find. Ballentine's Law Dictionary equates reasonable return with fair return and provides the following definition. Fair return--the term has a double aspect, one legislative and the other judicial. In the judicial aspect, it is the equivalent of nonconfiscatory. Judicially a rate is Page 31 - LaColla Public Hearing Southold ZBA 6/30/92 MR. FLYNN (con't.): unreasonable only when it yields a return less than the minimum which the capital invested may demand. It appears that decisions as to the reasonable return are evolving to a return which is nonconfiscatory, · i.e., a return which does not destroy the property's economic value and which reflects more than a bare residue of its value. If a property, as has been attested to by the applicant, has substantial market value, zoning cannot be considered confiscatory as claimed by applicant. In Rathkopf's "The Law of Zoning and Planning", it is stated that to grant a variance, "Courts have held that operation of a restriction must amount to virtual confiscation." In Spears vs Berie, the Court of Appeals held: "Nevertheless, there has evolved from our decisions a standard which, while retaining an element of flexibility, is capable of practical application, under this test, a land regulation--be it universally applicable local zoning ordinance or a more circumscribed measure governing only certain designated properties is deemed too onerous when it renders the property unsuitable for any reasonable income, productive, or other private use for which it is adapted and thus destroys its economic value, or all but a bare residue of its value. A, this is quoting further, a petitioner who challenges a land use regulation must sustain a heavy burden of proof, demonstrating that under no permissible use would the parcel as a whole be capable of producing a reasonable return or be adaptable to other suitable private use. And continuing, only when the evidence shows that the economic value, or all but a bare residue of the value of the parcel has been destroyed, has a taking been established." From the above citations, it can be concluded that, if a property has even nominal Value, the regulation is not confiscatory and hardship has not been proved. Now, the final section I have here is - Analysis of the applicant's investment in property. Entire property, consisting of Lots 19, 20.1, 20.2, 21, 22, 23, 24, and Right Title and Interested if any in Paine Island, was published in 1946 by Joseph A. LaColia for fifty-five hundred dollars ($5,500.00). The area has been variously estimated to be from some thirty-three (33) acres to some forty (40) acres. Over a period of time, he apportioned four (4)parcels with highway frontage among his progeny and provided for two residential parcels to the rear. Two of these parcels, the present sites of Hollister's Restaurant and the Greenport Pottery have since been resold. In addition there is a vacant parcel of highway frontage in M-II zoning which has an area of approximately twenty thousand five hundred (20,500) square feet and a most reasonable estimated market value of say, twenty thousand dollars ($20,000.00). By any reasonable standard, the investment in the property has long since been recouped. At best, MR. FLYNN (con't.):any remaining investment would be nominal. An attempt has been made to influence the Board by reciting an unsubstantiated, or at least at that time unsubstantiated, estimate of real estate taxes paid. One does not. capitalize real estate taxes. They don't add to the value of the property and proof of this will be ascertained quiekiy from the IRS if an attempt were made to deduct these taxes paid from a capitai gain. Valuation of highway frontage on a front foot basis is common methodology. This is somewhat involved and I request that I be paid somewhat close attention to these short figures here, that they be studied when I submit this. The property's Page 32 - LaColla Public Hearing Southold ZBA 6/30/92 MR. FLYNN (con't.): ~otal l~oute 25 ~'rontage was two thousand seven hundred fifty six, plus or minus (2,756 +-) linear feet. The purchase price, overall, was two dollars ($2.00) a linear foot. Even if all the property's utility is conceded to lie in that portion west of the pond, the usable frontage is eleven hundred and thirty-six plus or minus (1,136 +-) linear feet. Ascribing the entire purchase price to this portion of the frontage, provides an adjusted purchase price of three dollars and thirty-six cents ($3.36) per front foot. Now, seven hundred sixty-one (761) linear feet of the total usable frontage of eleven hundred thirty-six (1,136) linear feet is used for business purposes, currently. This use constitutes sixty-seven percent (67%) of this westerly frontage. Thus, at best, only thirty-three percent (33%) of the investment or eighteen hundred and fifteen dollars ($1,815.00) is imputable to the vacant land. Included in the vacant land, is an M-II zoned parcel, approximately one hundred feet by two hundred and seven feet (100' by 207'). The value of this parcel, alone far exceeds the .remaining investment in the property. It is estimated that this parcel, by itself, has a value approximately ten times the remaining investment. Even without consideration of this business zoned parcel, the market value of sixty thousand dollars ($60,000.00) ascribed to the residential portion alone, by the applicant's appraiser, is thirty-three (33) times the remaining investment. The residential portion alone, yields a thirty thousand two hundred percent (30,200%) return on investment. By any standards, this certainly constitutes a reasonable return on investment, far exceeding both the rate of inflation and other indices over the period. Even casting aside all considerations of public health, safety, and welfare, and the impact on both the character of the neighborhood and its property values, the logical conclusion, is that the applicant cannot prove financial hardship and as a result, there is no basis for the Board to grant this requested variance. Now, I have a couple of notes, some testimony that was introduced here, if I could read them. CHAIRMAN GOEHRINGER: Why don't you let Mr., the attorney... I was just thinking, why don't you let him and then you can compose your thought and then you can come back. That would be the best thing, Not that I didn't remember your name Mr. Cuddy, I was only trying to verbalize what I was trying to say to Mr. Flynn. Mr. Cuddy, is there something you would like to say? First of all, this is a very lengthy presentation okay, there is no question about it. You may want to sit down with this and critic it and come back with some rebuttal, I assume you probably do, don't you? Or maybe you don't want to rebut it at all? MR. CUDDY: I am not sure I understand you. But I would like to try. I have a lot of thoughts about it. I would like to Mr. Flynn just one question. The answer which is indicated, it would probably take me a while to look at it, because I am not sure I understood the lower kids math. And I still doubt the veracity of it, but, I could only do that after looking at it. Because I wasn't able to write fast enough. Mr. Flynn portrays to live someplace close to the site. I am wondering how far away you do live Mr. Flynn, and .... Page 35 - LaColla Public Hearing Southold ZBA 6/30/92 MR. CUDDY (con't.): ~y ~nis, are the La~Jollas. The LaCollas have kept their property for thirty (30) years. Everybody forgets that. It is very convenient to. But other people have moved in during the time as Mr. LaColla indicated, that he has kept his property in fairly pristine condition. He is not asking for a change of zone, he is asking for a use variance for five (5) acres of land. He says, he is going to keep all the rest of it with a scenic easement. He has also answered the question about traffic, going to give the ten (10) foot strip to the Town or to the State. He is the one that is victimized by this, not the people that are imposing it. Zoning isn't to condemn property, effectively, what has happened here, it that he has kept his property and he is being penalized. And to hear otherwise is just nonsense. I am done. CHAIRMAN GOEHRINGER: Can I just ask you a question Charlie before you sit down? We have discussed this before. You went before the Open Space Committee and you spoke to Art Ross and you didn't get anywhere. MR. CUDDY: Yes, right. CHAIRMAN GOEHRINGER: We discussed this the last time, Peconic Land Trust, you didn't make an application. MR. CUDDY: No, I am trying to get in touch with Peconic Land Trust, only because I understand just as of two (2) weeks ago, that they were in the process of purchasing land which is to the north on the other side of the railroad track. CHAIRMAN GOEHRINGER: Okay. What about Nature Conservancy? MR. CUDDY: No, I haven't had personally good dealings with Nature Conservancy, doing this sort of thing. One of the things that Nature Conservancy does, quite regularly, is that they buy parcels and then they sell them off. People know of the Marshamomaque on Shelter Island, which is a big, big nature conservancy parcel, but generally smalier parcels, they only keep for a period and then sell them. The intent for most of this, was to try and keep the good part of it open space. I thought if anybody would do that, initially, I thought the Town would do it. The Town didn't seem to interested, as I indicated to you. I thought that maybe the Peconic Land Trust people would do that, and I am trying to talk with them, because they are buying the pieces a little bit to the north. CHAIRMAN GOEHRINGER: Before I loose touch here and 1) if we choose to close this or if you choose to make, you know, some sort of rebuttal in reference to Mr. Flynn's statements, which I don't have any particular problem with. I just don't want to leave here forgetting to tell you, that I would dearly like to have your two (2) appraisers, and it does not have to be any more than just a letterhead, give us a fair market value for the piece that is the most westerly piece, that hundred by two hundred (100 x 200) foot parcel, which is M-I. I know, I realize that it has a big cavern out of the center of it, but I would like a value on that in the next two (2) weeks, ff they could just give it to Page 36 - LaColla Public Hearing Southold ZBA 6/30/92 CHAIRMAN GOEHRINGER (con't.): us. Again, it'doesn't have to be a formal appraisal, just a short little thing on the letterhead would be greatly appreciated. MR. CUDDY: Fine. CHAIRMAN GOEHRINGER: Okay, thank you. Mr. Flynn have you... are all set now. Okay, great. You MR. FLYNN: Reference has been made to value accordingly established by an appraisal of the 1960's. An appraisal does not establish market value. Market value is established in the market place. Now, another comment was made upon the valuation of the property, predicated upon potential use by Mr. Goldsmith. Obviously, it is not acceptable to predicate the value of the property upon uncertain acts of others and any appraiser should be well aware of that. Now, comments were made at Southold Shores, was filled in. It was certainly filled in subsequent to 1946 and that possibility existed for the owners of this property until the SEQRA act was established. Now, again, taxes paid on real estate are not evidence of its value. What they really indicate and are utilized for is a relation to AV's and the assessor's estimate of value. But that is turn is useless before the courts, it is just not accepted. Now, finally what the question of granting variances, Anderson made a substantial study of the granting of variances. I think, I really don't remember exactly, I think maybe several thousand were involved, and he found that of the variances that were granted and contested, sixty-five percent (65%) or approximately two-(hirds (2/3) were over turned by the Courts. The reverse of that is where variances were denied by Boards of Appeals only twenty-five percent (25%) were overturned by the Courts. 'Thank you. CHAIRMAN GOEHRINGER: Hearing no further questions, we come now to the situation of whether we are going to close this hearing or not. assume that we probably could close the hearing, bearing in mind that Mr. Cuddy can do his normal rebuttal to Mr. Flynn's presentation by mail. I don't know if that is the proper way to deal with it however. And I am really throwing that out the Board at this particular point. (tape turned over) CHAIRMAN GOEHRINGER (con't): You want to come back to the Board Charles with your rebuttal? MR. CUDDY: If I could at least have that privilege, initially, I may not, but I will know in a day or two, I just want to make copies. CHAIRMAN GOEHRINGER: Yes, sure.. Then what we will do is, we will recess it to the next regularly scheduled meeting and we will complete the process at that point. I am only going to request of the people that speak at that hearing, that they would limit their remarks to no more than five (5) minutes, so that we can conclude this hearing, except for the activity that might occur and a situation of a back and Page 37 - LaColla Public Hearing Southold ZBA 6/30/92 CHAIRMAN GOEHRINGER (con't.): forth motion. You know, in that general range. as a resolution. I offer that gentlemen End of hearing. CHAIRMAN GOEHRINGER: Yes, oh I am sorry, Mrs. LaColla? Is is Miss LaColla? MRS. RICHARDS: No, it is Mrs. Richards. CHAIRMAN GOEHRINGER: How do you do? MRS. RICHARDS: I would just like to remark to Mr. Flynn that that property is all filled in property that he lives in his comfortable home there and it was filled in after 1946, because I have lived for forty-five (45) years on the Main Road there, and right across the street from him. And I can tell you that I watched them, saw it, Mr. Reese, a man by the name of Mr. Reese owned that property. And, I would like to say also, that there are no houses at all visible, you can drive down that, any of the roads down there, and they see nothing at all, till you get way deep into it, where the first house is. I mean, there would be no absolute destruction of a view for them in any sense of the word. But he is wrong on the filling in. Let me tell you another thing that I have lived on the Main Road. And I wouldn't recommend anybody to build a house and live there. And I would say one more thing about this house, which was Conklin's house, across from me. That house was left abandoned. The windows were broke and it was just a dilapidated mess for years, and years, and years. Even the children didn't even want to have anything to do with it, Mr. Conkiin's children. So, finally after the Conklin's died, they fixed it up and they had a "For Sale" sign, I think it was four hundred and fifty thousand dollars ($450,000.00) around that amount. And it stood there for six, seven (6, 7) years. And finally, they reduced it to, I think, maybe one hundred and sixty, one hundred and seventy thousand dollars ($160, 170,000.00.). And someone bought it, right. That was last year or so. The someone that bought it last year or so moved out in a hurry. It was resold a couple of months ago, because they couldn't stand it either. MRS. FLYNN: That is not true. MRS. RICHARDS: That is quite true. MRS. FLYNN: No,... CHAIRMAN GOEHRINGER: I just wanted to tell you that we did close the hearing. We are taking this testimony, but we have to continue the next time. MR. FLYNN: I have to raise a point of personal tribute here. I have been contradicted by the lady, and unknowingly she said exactly what said. Mainly, that this property that was purchased in 1946 and was Page 38 - LaColla Public Hearing Southold ZBA 6/30/92 not filled. In the interim, Southold Shores by and large was filled and then the SEQRA act prevented any further development of this type. And, incidentally, the SEQRA act also prevented Mr. Reese from continuing, with his plan. MRS. FLYNN: And the SEQRA act is what has made us suffer hardship all these years, but not you, because you got in there before. MR. FLYNN: Because I complied with the act and I got in there five (5) years after the passage of the act.. MRS. FLYNN: Whatever. CHAIRMAN GOEHRINGER: Thank you. Yes, Mr. LaColla. MR. LaCOLLA: I would like to speak again. I would like to take exception of being compared to a murderer. MRS. FLYNN: Yes, I didn't also. MR. LaCOLLA: Okay, I don't think that that is appropriate. No. 2) pointed out before, that after this act, this SEQRA act or whatever it is, in the 60's the State and the Town decided to dredge Mill Creek, they had to do something with the fili. Our property was bypassed. The fill was put on Cassidy's farm, next door. I don't know how many hundreds of square yards of fill was put there. And yet' the logical place was to put it right where it was taken out of the creek, on our property. And it wasn't. The next thing is, this property has been zoned since the zoning came in as residential. How can you build homes on wetlands? CHAIRMAN GOEHRINGER: Gentlemen, we have to raincorporate these statements back into the records, I will offer that as a resolution. Ail in favor - AYE. CHAIRMAN GOEHRINGER: Is it, Mrs. Richards? Is that what your name' is. MRS. RICHARDS: Yes it is. CHAIRMAN GOEHRINGER: Again, the information you had given up is correct to the best of your ability, is that correct? MRS. RICHARDS: Yes it is. CHAIRMAN GOEHRINGER: Thank you, We thank you all and we hope to see you again the latter part of the month and wrap this up. July 29th. iller (Transcribed by tapes recorded 6/30/92.) Southold, the f.o. llo.~ ~i. gn.s before thc ~ew york 11971. on wg~pr'° . th~ Sec . .~ ~9 4B for ? ..... overage at more ~a~ ~:40p.m- AppI',~¢ CO d/bis LULAR TELEIh~9- -~2~al of ' ~e ahemadve, ap~lam r~es}s a - ~ -ue. NY; also shown 25), ~utC~rd su~Msion-ap~°v~. crete block building a~:t;;crtwith one services. Location I e Main Road {NYS Routem~. or ~ of William L Baxter and Others; County Tax Map Parcel ii) No. 1000-108-4-part of IL 8:00 p.m. Appl. No. 4116 -- L1NDA TAGGART. 'l~'s~ is an Ap- peal of the March 13, ]992 Notice of Disapproval issued by thc Build- ing Inspector under Article XIV, Section 100-142 and Article XXIII, Section 100-239.4B for approval or recognition of lot with a substandard size of 15,285 sq. ft.. lot width (frontage) along thc Main Road 76.46 feet. and lot depth 125.0 feet. At the time of transfer of title, thc property was located in the B-Light Business Zone. Today. thc property is located in the Light Industrial (LI) Zone District. Location of Property: 68320 Main Road, Grcenport; Map of Peconie Bay Estates Lot Nos. 185 and 186; County Tax Map Parcel ID No. I000-53-2-2. 8:15 p.m.'Appl, No. 4117SE -- LINDA TAGGART, Request for a Special Exception under Article XIII, Section 100-13lB, as refer- enced from Article XIV. Section 100-14lB for permission to estab- lish retail gift shop in this Light Industrial (LI) Zone District. Loca- tion of Property: 68320 Main Road, Greenport; Map of Peconic Bay Estates Lot Nos. 185 and 186; Coun- ty Tax map Parcel ID No. 1000-53- 8:25 p.m. Appl. No. 4120 -- WILLIAM GOODALE AND MAT- TITUCK AUTO CENTER, INC. Variance to the Zoning Ordinance. Article XXI, Section 100-212B for relief from the front yard landscap- ing provisions of thc zoning code. Location of Property: 7655 NYS Route 25 (Main Road), Laurel, near Mattituck, NY; County Tax Map Parcel No. 1000-122-06-30.1 (previ- ously 30). 8:30 p.m. AppL No. 4119SE -- RICIIARD GOODALE AND MAT- TITUCK AUTO CENTER, 1NC, (Tenant). Special Exception to the Z6ning Ordinance Article X, Section 100-1011t(12) for a pen'nit amhodz- lng: (a) a new car sales estab- lishment; Co) an establishment of an accessory usc incidental lo the pro- vehicles; (c) outside display of vchl- clcs, (d) accessory office use inet- new car sales establishment. Loca- tion of Property: 7655 Main Road (NYS Route 25), Laurel. near Matli- tuck, NY: County Tax Map Parcel No. 1000-122-06-30.1 (prev. 30). 8:45 p.m. (Rcconvencd from June 30, 1992) Appl. No. 4091 -- EU- GENE M. LACOLLA. Variance to tl;c Zoning Ordinance, Article llI, Section 100-31A and Il, requesting permission to change usc of a For- lion of thc subject premises, from residential Io non-residcnti&l. Loca- tion of Property: North Side of Main Road (State Route 25), at Arshamo- moquc near Grcenport, (abutting propeflins of Ilollister's Restaurant. Mill Creek Liquors, The Pottery Place. crc.); County 3hx Map Parcel Nos. 1000-56-4-24 and 19. 9:00 p.m. Appl. No. 4072 -- Appl. No. 4072 -- VARUJAN AND LiNDA ARSLANYAN. Appeal of thc November 26. 1991 Notice of Disapproval of Ihe Building Inspec- tor for a Variance to thc Zoning Or- dinance, Article XXIII. Section 100- 239.4A and Article XXIV, Section 100-244B. or Article lit, Section 100-32. for permission to construct swimming pool and deck addition with insufficient sidcyard(s) and with insufficient setback from sound bluff/bank along the tong Island Sound. Location of Properly: 54455 (North Side) of County Road 48. Grcenport; County Tax Map Parcel No. 1000-52-1-8. The Board of Appeals will at the above time and place hear any and all persons or representatives desir- ing to be heard concerning these applications. Written comments may also be submitted prior to the con- clusion of the subject hearing. Each hearing will not start before the time designated above. For more infor- mation, please call 765-1809. Dated: July 14, 1992. GERARD P. GOEHRINGER CIIAIRMAN By Linda Kowalski 7442-1TJv16 b'TATE OF NEW YORK) ) SS: COUNTY OF SUFFOLK) Co - ~ ~w~ of Mattituck, in said County, being duly sworn, says that he/she is Principal Clerk of THE SUFFOLK TIMES. a Weekly Newspaper. published at Mattituck, in the Town of Southold, County of Suffolk and State of New York, and that the Notice of which the annexed is a printed copy, has been regular- ly published in said Newspaper once each week for I weeks successively, commenc~lg on the l(O~dayof~ 19 Principal Clerk Sworn to before me this dayof -~ 19 CA...~ ER,NE A, O,BRiEN Nola,,'/Public, State ol Ne~ Yak No. Oual~ied in Sulfolk County Commhsion Expires Ida¥ NOTICE OF HEARING NOTICE IS HEREBY GIVEN, pursuant to Sectior~ 267 of the Town Law and th~ Code of the Town of Southold, the following matters will be' held for public hearings before the SOUTHOLD TOWN' BOARD OF APPEALS at the Southold Town Hail, 53095 Main Road, Southold, Ne~ York 11971, on WEDNESDAY( JULY 29, 1992 commencing at, the following times: 7:32 p.m. Appl. No. 4118 ~ GLADYS J. MILNE. Variance, to the Zoning Ordinance, Arti- cle XXIV, Section 100-244B: and Article XXIII, Section.~ 100-239.4B for permission construct deck addition with in~ sufficient side yard setback, in- sufficient setback from existing bulkhead, and with lot coverage at more than 20% of the code limitation. Location of Properr ty: 240 Knoll Circle, East Marion; County Tax Map District 1000, Section 37, Block 5, Lot 15; Gardiners Bay Estates Lot No. 31. 7:37 p;m. Appl. No. 4115 - STEPHEN AND ELLA SCHMIDT. Variance to the Zoning Ordinance, Article XXIV, Section 100-244B for permission to construct deck ad- dition with an insufficient rear yard setback at 340 Bay Haverba Lane, Southold, "Map of Ba~ Haven" Lot No. 27; County Tax Map District 1000, Section 088, Block 04, Lot 24. .... 7:40 p.m. Appl. No. 4023 -- CELLULAR TELEPHONE CO. d/b/a METRO ONE. This is an Appeal of the March 14, 1991 Notice of Disapproval issued by the Building Inspector for an Interpretation under Ar- ticle XXIII, Section 100-2301 concerning a proposed 104 ft height of a monopole structure for radio transmission, and n the alternative, appellant re- quests a variance from the: height restriction. Location of Property: (#415) Westerly side of Elijah's Lane and the Norther~t ly Side of the Main Road (NYS Route 25), Cutchogoe, NY; also ~ shown on Planning Board; Subdivision-approved map of~ May 15, 1990; property now or formerly of Willam J. Baxter and Others; County Tax Map Parcel ID No. 1000-108-4 oart of 11. 9p.m. Appl. No. 4022SE -- CELLULAR TELEPHONE CO. d/b/a METRO ONE. Re- quest for Special Exception ap- proval under Article VIII, tion 100-8lB(I) and Article III, Section 100-31B(6) for an un- manned telecommunications building in an existing concrete block building and construction of a monopole radio tower witht antenna for transmitting and receiving radio signals to provide cellular telephone services. Location of Property: (#415) Westerly side of Elijah's Lane and the Northerly Side of the Main Road (NYS Route 25), Cuti:hogue, NY; also shown on Planning Board subdivision- appproved map of May 15, 1990; prop6rty now or formerly [ of William J. Baxter and Others; [ County Tax Map Parcel ID No. / 1000-108-4-part of IL g:00 p.m..Appl. No. 4116 -- ~ LINDA TAGGART. This is an ] Appeal of the March 13, 1992 I Notice of DisaPproval issued by ] the Building Inspector under lB Article XlV, Section 100-14237 and Article XXIII, Sectiofi / 100-239.4B for approval or recognition of lot with a substandard size of 15,285 sq. ft., lot width (frontage) along the Main Road 76.46 feet, and lot depth 125.0 feet. At the time of transfer of title, the property was located in the B-Light Business Zone. Today, the pro- perty is located in the Light In- dustrial (LI) Zone District . Location of Property: 68320 Main Road, G~enport; Map of Peconic Bay Estates Lot Nos. 185 and 186; County Tax Map Parcel ID No. 1000-53-2-2. 8:15 p.m. Appl. No. 4117SE -- LINDA TAGGART. Request for . a Special Exception under Ar,, ticle XIII, Section 100-13lB, as referenced from Article XIV, Section 100-14lB for permission to establish retail gift shop in this Light Industrial (LI} Zone District. Location of Property: 68320 Main Road, Greenport; = Map of Peconic Bay Estates Lot Nos. 185 and 186; County Tax Map Parcel ID No. 1000-53-2-2.; 8:25 p.m. Appl. No. 4120 --~ WILLIAM GOODALE ANDi MATTITUCK AUTO CENZ TER, INC. Variance to the Zon- ing Ordinance, Article XXI,, Section 100-212B for relief from ~ the front yard landscaping pro- visions of the zoning code.. Location of Property: 7655 NYS Route 25 (Main Road), Laurel,/x near Mattituck, NY; County Tax Map Parcel No. 1000- 122-06-30.1 (previously 30). 8:30 p.m. Appl. No. 4119SE -- RICHARD GOODALE AND MATTITUCK AUTO CENTER, INC. (Tenant). Special Exception to the Zoning Ordinance, Article X, Section 100-10lB(12) for a permit. authorizing: (a) a new car sales establishment; (b) an establish- ment of an accessory use in- cidental to the proposed new car sales establishment for the sale and/or lease of used vehicles; (c) outside display of.v~hicies, (d) accessory office use incidental to the new principal use as a new car sales establishment· Loca-t~ tion of Property: 7655 Main/ Road (NYS Route 25), Laurel, near Mattituck, NY: County Tax Map Parcel No. 1000- 122-06-30.1 (prey. 30). 8:45 p.m. (Reconvened from June 30, 1992) AppL No. 4091 -- EUGENE M. LACOLLA. Variance to the Zoning Or- dinance, Article III, Section 100-3lA and B, requesting per- mission to change use of a por- tion of the subject premises, from residential to non- residentiai. Location of Proper- fy: North side of Main Road'? (State Route 25), at Ar~ shamomoque near Greenport, (abutting properties of Hollister's Restaurant; Mill t~ Creek Liquors, The Potterg/ Place, etc.); County Tax Map , Parcel Nos. 1000-56-4-24 and 19. 9:00 p.m. Appl. No. 4072 -- VARUJAN AND LINDA ARSLANYAN. Appeal of the November 26, 1991 Notice of Disapproval of the Building In- spector for a Variance to the Zoning Ordinance, Article XXIII, Section 100-239.4A and Article XX1V, Section 100-244B, or Article I11, Section 100-32, for permission to construct swimming pool and deck addi- tion with insufficient sideyard(s) and with insufficient setback from sound bluff/bank along the Long Island Sound. Loca- tion of Property: 54455 (North Side) of County Road Greenport; County Tax Map Parcel No. 1000-52-1-8. The Board of Appeals will at the above time and place hear any and all persons or represen- tatives desiring to be heard con- cerning these applicatioas; Writ- ten comments may also be sub- mitred prior to the conclusion of the subject hearing. Each hear- lng will not. start before the times designated above. For more information, please call 765-1809. . Dated' July 14, 1992 GERARD P. GOEHRINGER CHAIRMAN By Linda Kowalski 1X-7/16/92(6) COUNTY OF SUFFOLK~ss.. STATF. OF NEW YORK Patricia Wood,' being duly sworn, says that she is the Editor, of I'HE LONG ISLAND TRAVELER-WATCHMAN, a public newspaper printed at Southold, in Suffolk County; and that the notice of which the annexed is a printed copy, has been .pul)Isled in said Long Islan(I 'l'raveler-Walchnlan once each week for .......... / .... weeks successively, commencing on tile ...................... Y~~// ...... 19.? Swm'n Icl before me Ibis /~; day of .......... ....... Notary Public BARBARA A. SCHNEIDER NOTARY PUflLIC, Sl~te el New York ' No. 4806846 Qual[lied in Sultetk Co[inly/ Commission Expires APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. .lames Dinizio, Jr. Robert A. Villa Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTt L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 TO WHOM IT MAY CONCERN: Enclosed herewith as confirmation of the time, date and place of the public hearing concerning your recent application is a copy of the Legal Notice, as published in the Long Island Traveler-Watchman, Inc. and Suffolk Times, Inc. Please have someone appear in your behalf at the time specified in the event there are questions brought up during the same and in order to prevent a delay in the processing of your application. Your public hearing will not start before the time allotted in the attached Legal Notice. Additional time will, of course, be available. A drafted or final written copy of your presentation, if lengthy, is always appreciated. Please feel free to call our office prior to the hearing date if you have any questions or wish to update your file. Yours very truly, Enclosure GERARD P. GOEHRINGER CHAIRMAN By Linda Kowalski Mailing List of Legal Copies mailed 7/14/92: ce for Ju~y 29, 1992 Hea~n,gs: Mr. and Mrs. R. Milne P.O. Box 394 East Marion, NY 11939-0394 Mr. and Mrs. Stephen Schmidt 450 Bay Haven Lane Southold, NY 11971 -Allen M. Smith, Esq. (Re: 737 Roanoke Avenue P.O. Box 1240 Riverhead, NY 11901-1240 Mr. Merlon Wiggin, P.E. Peconic Associates, Inc. P.O. Box 672 Greenport, NY 11944 Cellular Telephone Co.) Moore & Moore, Esqs. P.O. Box 23 Mattituck, NY 11952 Mrs. Linda Taggart Box 249 Southold, NY 11971 (Re: Cellular Tel.) J. Kevin McLaughlin, Esq. P.O. Box 1210 1050 Youngs Avenue Southold, NY 11971 (Re: Goodale) Charles R. Cuddy, Esq. P.O. Box 1547 180 Old Country Road Riverhead, NY 11901-1547 (Re: LaColla) Mr. and Mrs. F.M. Flynn P.O. Box 144 Southold, NY 11971 (Re: LaColla) Mr. and Mrs. Varnjan Arslanyan Apt. PH-11 - South Building 1055 River Road Edgewater, NJ 07020 Mr. G. Townsend Smyser 302 Prospect Street Ridgewood, NJ 07450 (Re: Arslanyan) Mr. and Mrs. Richard Sherman P.O. Box 1002 Southold, NY 11971 (Re: Arslanyan) Mr. and Mrs. Wilbur C. 527 Paramus Road Paramus, NJ 07652 Allcot Mr. Robert H. Whelan, P.E. P.O. Box 590 Mattituck, NY 11952-0590 (Re: Arslanyan) APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, .Ir. Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTT L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 June 15, 1992 Charles R. Cuddy, Esq. 180 Old Country Road (Peconic Plaza) Post Office Box 1570 Riverhead, NY 11901-1570 Re: Use Variance - Estate of Josep~ A. LaColla Dear Mr. Cuddy: Attached please find a copy of the Legal Notice which will be published this week in the L.I. Traveler-Watchman, Inc. and Times-Review newspapers. The LaColla hearing has been calendared on the agenda as the fourth public hearing commencing at 7:55 p.m. on Tuesday, June 30, 1992 (following the Carlson hearing). Also, please be sure to submit, as early as possible, the sketch maps requested at our May 7, 1992 meeting which should include a reduced amount of area for consideration in this use variance. Very truly yours, Linda Kowalski Enclosure . \ NOTICE OF HEARINGS NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the To~,n Law and the Code of the Town of Southold, the following matters wiU be held for public hearin§~ before thc SOUTHOLD TOWN BOARD OF APPEALS at the Southold Town HaH, 53095 Main Road, Southold, New York 11971, on TUESDAY, JUNE 30, 1992 commencing at the 7:32 p.m. AppL No. 4100 -- convened fr~-n May 7. 1992. M~er of the Application of THOMAS $. ·ance, Article IliA. ,%etlon 100- ~0A.3 for approval of insufficient lot nrea..w, idth and depth of. parcels pmea in this four-lot minor subdivi- ! sion, each with a preexisting l dwe~ng. Location of Property: 1270 Fourth Street and 305 King Street. New Suffolk. NY; ~,ounty Tax Map; Parcel No. 1000-I17.7-8. This =ty is zoned R-40. ~__ ~:55 p.m. Apl No. 4091 ] to the Z~.~ng Ordinance, Article H~, ~ Section 100-31 A & B, ~questing ] punnission to change use of a portion w <~ the subject l~nlse~, from msiden- ~ till to non-residential. Location o.~ ]Property: Noah Side of Main Road ~ (State R~ta 25), at Arshamornoque lnear Gmenpo~, (abutting properties ~r ~ Hollistar', Restaurant, Mill C.~ek ~r Ltquors, The Potte~ Place, etc,); gCounty Tax Map Parcel Nos, 1000- ~56-4-24 & 19 (combined as ~e lot in ~commeo ownemhip). The Board of Appeals will above-noted time and and all persons or desiring to be heard in the above mat. tars. Wr~tlen commenL~ may also bc submitted prior to the conclusion of the subject heath§. Each heating wBI not start before the times deslgnat~d above. For more information, please 'call 765-1809. Dale. d: June 15, 1992. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEAI~ GERARD E GOEHRINGER CHAIRMAN By Linde Kowalski 7415-1T~u18 STATE OF NEW YORK) )ss: COUNTY OF SUFFOLK) of Mattitnck~ In said County, beln~ duly morn, says that ho/sho is Principal Clerk of THE SUFFOLK TIMES, a Weekly Newspaper, published et Mattltuck, In tho Town of Southold, County of Suffolk and State of Now York, and that tho Notloe of which tho annexed is a prlntnd copy, has been regularly published In said Newspaper once each week for. I weeks successively, commencing on the i ~44~ day of Princlpai Clerk Sworn to before me day of 30, 19 ?.",~ To: Board of Appeals, From : F. M. Flynn Re: Objections to Appeal No. M. La Colla et al (Dist Date: May 7, 1992 Town of Southold 4091. Proposed variance, Eugene 1000 Sec. 56 Blk. 4 Lots 19 & 24) The following comments incorporate my objections to the referenced application for a variance(s). The legal notice does not make clear to the public the scope and impact of the proposed variance(s). It describes, nonspecifically, a proposed change from residential to nonresidential use. As a result the typical resident would be unaware that the proposed variance would permit a situation where over nine acres of intensive commercial use would be concentrated at a sensitive and hazardous location. Location of the Property Property is identified on the Appeal as Dist. 1000 Sec. 56 Blk. 4 Lots 19 & 24. There is a conflict between this description and the map prepared by R. Van Tuyl, L. S., and dated March 26, i992. Map excludes Lot 19. Lot 24 is approximately 28 acres in area. Of this area it appears that 5.4+/- acres is actually the subject of this application. Reason for Appeal Applicantytates property cannot be used as zoned. Property is actually in two zoning districts and has a history of being used as zoned. Rather than seeking a variance for a specific use, the applicant presents to the Board a grab bag, or Chinese menu, of requests ranging from the extension of the existing uses to a series of uses permitted in a General Business (B) district. It should be noted that the existing uses are in the ownership of others than the applicant/ and cannot be extended. The exception to this would be the present residential use of northerly portions of the applicant's property. The highway frontage is in an MII district and its extension into a residential district would require a rezoning. with respect to the applicant's alternative, a variance must be for a specific use. Instead, the applicant seeks his choice among a broad range of business uses permitted in a General Businees(B) zone. Such a range of uses could only be achieved by obtaining a change of zoning. Further, granting a variance to the applicant would enable him to evade the site plan review mandated for a business zoned parcel. A rezoning would dictate such a review for the 5.4 acres in question. As a result of a variance there would be over nine acres of unplanned business use at this location. Implicit in the devious wording of the applicant's stat~ed reasonYis an attempt to obtain a rezoning by subterfuge; a rezoning in the guise of seeking a variance. This is a common ploy used by owners attempting to secure a manifold increase in the value of otherwise marginal properties. The highly respected legal publishing Company, in its publication Land Use, variances into its true perspective. house, the West puts the entire Publishing problem of use After discussing that use variances are sometimes considered spot zoning, that some venues do not permit use variances, and that the burden of proof is on the applicant, the text goes on to state: "If every board of adjustment and every court were more aware of these factors and applied them more rigorously in place of bending them to mee~the economic aims of developers and landowners, use variances would no longer constitute a synonym for evasion of zoning restrictions. As matters stand today, zoning is as much characterized by the variances from it as by the adherence to it." Based on the applicant's own statements, this is obviously an attempt to secure a change of zoning. Zoning constitutes a legislative enactment by the Town Board in accordance with a Master, or Comprehensive, Plan. Among legal precedents supporting this contention are: "Moreover under some charter or statutory provisions, a zoning c~hange or amendment may not permit a use in any area which is contrary to the general land use established for such an area by a masterplan." (Corpus Juris Secundum 101A CJS Zoning and Land Planning Sec. 73) "However, the courts in some cases have held or implied that once a zoning authority has established a use classification for a particular area, there is no presumption that an amendment or grant of a special permit or a variance changing the use classification of a part of that area is in conformity with a comprehensive plan and the burden of proving such conformity is with the zoning authority." (American Jurisprudence, 2nd.Ed., Sec. 71} With respect to the granting of variances, the powers of the Board of Appeals are defin~and circumscribed by Section 100- 271B of the Town Code. The Board may vary the strict letter of the zoning regulations provided that the spirit of the ordinance is observed and that public safety and welfare are secured. The power to rezone is a legislative perogative and beyond the purview of the Board of Appeals. (2) Even were this a legitimateapplication for a variance, the limitations on the Board's~powers would still prevail. To alter the zoning of 5.4+/- acres is no m~re alteration of the strict letter of the law. As to the spirit of the regulations, spirit is another word for intent. However, it is not necessary to interpret either spirit or intent when both are inherent in the ordinance itself and in the comprehensive plan which the ordinance is intended to implement. The spirit of the comprehensive plan has also been expressed in the policy statements of zoning authorities. Among these are the rejection of strip zoning and the intent that business uses be confined to hamlet areas. It is also the clear intent of the regulations that the development of business properties, particularly those of the size proposed, be subject to site review by the Planning Board. Application for a variance is a transparent attempt to circumvent this requirement. The question of consideration of the public's safety and welfare will be discussed later. It is clear that the objective of the applicant, particularly when the diverse nature of the uses proposed and the size of the property are considered, is to obtain a change of zoning. It is equally clear that such an objective can only be attained by application to the Town Board. Even were this a case in which a variance were a possibility, the applicant would still be faced with meeting the standards of proof required by law. The applicant claims that strict application of the ordinance would produce practicalr difficulties or unnecessary hardship. He maintains that the parcel cannot be sold for residential use as zoned. If it can be used for residential use it has value and can be sold. It is not the obligation of the municipality to maximize the owner's profits. Two of the abutting parcels fronting on the highway are used for residential purposes. More to the point, there are two residential improvements on the R 80 zoned area of the property. Additionally, an agreement among the distributees of Joseph A. La Colla, dated September 10, 1~ and recorded in Liber 4884 Cp. 439, clearly demonstrates an attempt to further subdivide the property for residential use. A copy of this agreement is attached. For an understanding of the situattion with respect claim of practical difficulties, the history of the must be understood. to the property The entire property of 33+/- acres was acquired by Joseph A. La Colla in 1946 bydeed recorded in Liber 2550 Cp.367o The consideration was $5,500.00, or approximately $165.00 per acre. (3)__ The importance of this transaction is that the low unit price paid took cognizance of certain practical difficulties and unique features found on certain areas of the entire property, but outside the area for which a variance is now sought. The price paid, and the subsequent history of the property to date, have bearing on the applicant's claim that the property cannot produce a reasonable yield as zoned. It is presumed that this refers to the requirement that "dollars and cents" proof of a property's inability to yield a reasonable return as zoned set by the Court of Appeals in the landmark case of Otto vo Steinhilber. Practical difficulties cannot be claimed if self created. Property was originally purc~hased in 1946. At that time there was no zoning in Southold. Nor was there a tax map. As a result, the owner was free to use the property in any manner he saw fit and to apportion it accordingly. Investigation of the public records reveals that what is now Lot 23 was conveyed by Joseph A. La Colla to Edward van Cura and Charlotte ux in 1953. Joseph A. La Colla also conveyed what is now Lots 20.1 and 20.2 to Genevieve Richards in 1958. Lot 22 was conveyed to Thomas D. La Colla by John A. La Colla and Joseph A. La Colla, Jr. in 1962. Lot 21 was conveyed to Clotilda D. Oliver by the La Colla Estate~ /F~ All of the grantees were distributees of Joseph A. La Colla who died intestate in 1960. This is evidenced by the previously referenced agreement of September 10, 1960. Since the apportionment of the property was interfamily, it follows that any practical difficulties resulting from haphazardly placed and nonconforming parcels is self created. The applicant also claims the parcel is unique because of its configuration and location and that an inability to use the property as zoned effectively confiscates the property. It is a basic premise of real property valuation that all properties are unique as to location and configuration. Such unique features as may be claimed to exist in the overall property, and adversely affect its value, have been reflected in the discounted purchase price. Certainly the area for which a variance is sought is not unique, or could not be maintained to be so, were it not for the actions of the owners and/or their predecessors in title. The inability to use the property as zoned must be proved. The statement that the "unique "nature effectively confiscates constitutes a statement that the property is without value as zoned. The standard that a property must be without value as zoned to justify a use variance is the general standard employed by today's courts. In any event, the burden of proving the property's lack of value rests with the applicant and he must meet strict standards of proof. The applicant also claims that the variance sought would observe the spirit of the ordinance and would not change the character of the district. The bulk of the area for which a variance is sought lies in a R 80 district. Obviously a variance permitting commercial use would change the character of an R 80 district. The northeasterly portion of the property involved in this application is heavily wooded, fronts on a large pond and is located in a critical environmental area. These characteristics dictated the low density zoning of this part of the property. In preparing the town's master plan, the town's independent,professional planning consultants, Raymond, Parish, Pine and Weiner, recognized these features, and to preserve them recommended that this area be preserved as open space. The R 80 zoning was considered the best means to obtain this end. Quite recently, the Long Island Regional Planning Board in its Comprehensive Plan for the Town of Southold, 1990 - 2010, also classified this area as open space and planned for future acquisistion by the County of Suffolk. As to the spirit of the ordinance, it and the ordinances intent have been succinctly stated in two successive master plans and approved by a series of Town Boards over a period of some 37 years. The town's comprehensive plan has also been supported by a number of policy statements made by the Town and Planning Boards. Among them is an opposistion to strip zoning. If the easterly 600+/- feet of highway frontage were converted to commercial use, contrary to the advice of the professional planners cited, practically the entire northerly ~fontage of Rte. 25, from Budd's Pond easterly to the Greenport Village line would be strip zoned for commercial use. The proposed variance also runs counter to the town's planners stated intent to confine business uses to hamlet areas. Lastly, but far from least, the Board's primary concern is, or should be, with the public's safety. The authorities recognize that the length of Rte. 25 extending easterly along the arc of a sharp curve from Mill' Creek to the highway overpass over the LIRR ROw, is extremely hazardous even as presently constituted. The arc of the curve reduces a drivers line of site and hence his reaction time. Rte. 25 is a two lane highway heavily traveled, particularly in summer.furning across the flow of traffic, abetted by the reduced reaction time dictated by the curve, resuts in a potential for disastrous rear end collisions. Another factor co0ntributing to the hazardous nature of this portion of the highway is the change of grade resulting from the highway's overpass across the LIRR ROw. This also reduces the line of site,all the more so when increased traffic can be anticipated fro the expanded marina on Sage Blvd. The present area of unplanned business use east of the Mill Creek constitutes approximately 3.4 acres. There are currently nine driveways intersecting the northerly side of Rte. 25 from this area. The developed business area is opposite the confluence of Dolphin and Albacore Drives on the map of Southold Shores. Granting this variance would result in over nine acres devoted to business uses at this location. Not only would these uses be unsupervised by planning authorities, but there would be an attendent increase in driveways and traffic. The easterly extension of business use would also place it opposite Tarpon Drive on the Map of Southold Shores. The existing highway situation in this area is already so hazardous as to warrant investigation by the NYS Dept. of Transportation. For this reason alone the granting of the proposed variance would be unconscionable. The existing business uses in the area date from a period when there was no zoning and grew like Topsy. By way of contrast, the map of Southold Shores was approved by the Planning Board as being in accrdance with the town's zoning. Extending the zoning on the subject property would not only adversely affect the safety and welfare of the residents of Southold Shores and devaluate their properties, but would set a precedent for further applications for business use on the southerly side of Rte. 25. (6) F. H. Flynn P. O. Box 144 ~qouthold, TI. Y. 11971 (516) 477 0698 May 1, lqO? Regional Director NYS Department of Transportstien State Office ~uilding Hauppague, N. Y. 117~ Re'. NYS Rte. ,.g,o~ E/O Lt]l"' Cre~k, Arshamomaque, Southold, N. Y. Dear Sir: As attested to by the enelnsed enpy of an n~tJele from the ~qu?Folk Times of April 23, lOOP, ~nd hy my own experience, the refereue,d section of Rte 2q is oxtro~qolv h~zardous in its prmsent eondi~'i~-~ I believe you sho~]]d be ~dvised that thero is ~n ,~pplication (Appeal No. tOOl) before the Soutbold P. osrd of Zon~n~ Appeals which, if granted, wonld h~v~ the effect of extending the present 1106 +/- LF of commercial zoni,~] along the northerly side of Rte. 25, ~nd extendin~ e~ter].v From U~ll Creek, by 470 +/- LF. T~Ie overall depth would be extended and the imtensity of commercial use two and one-half ti~es the area presently used for that purpose. There are now nine (9) drivewmys intersecting the northerly side of Rte. 25 from 956 +/- I,F of the property's existing commerce, al zoning. Traffic also intersects the southerly side of Rte. 25 opposite the subject property from the Southold Shores residential development via the confluence of Albacore and Dolphin Drives and from Tarpon Drive. Another adverse influence on trsffic safety in the nrea is the Rte. 25 overpass over the LIaR ROU. The highway grade increases in a northerly direction be~in~in~ spproximately 150 LF northerly of Sage Blvd. Not only does this have the effect of diminishing the line-of-sight for vehicles approaching the curve, but considerable additionaI ~ntersecting traffic can be anticipated from the expansion of the marina located some 1750 LF easterly of ~te.?5 on Sage Blvd, It is also e×tremely hazardous to attempt turns across the flow of traffic on this two lane highway. Drivers approaching turning vehicles From the rear have linlted reaction time to avoid rear end collisions. If it is acknowledged that ~ Gnnf~erous condition exists along Rte. 25 in this area, how much would the situation be worsene(t if the area an~ intensity of commercial usage would be subjected to a quantum increase. I believe that, tn the ~nterezt of the ge~eral welfare, it is incumbent on the Department of Transportation to initiate a thorough investigation ~f this ~ituat~on i~ncludinm, tile obvious effect.~ on t¥~e pnblic safety ~)f the plan~ quantum increase of commerciml use. A public hearing is scbedule~l b~fore the .qouthold ZBA at ~:15 P~ on May 7, 1992. cc: Suffolk County PI anning Very truly yours, D~partme~t F. M. Flynn P. O. Box 144 Southold, N. Y. 11971 (516) 1177 - 0698 May 1, 1992 Thomas Junor Assistant Director of Suffolk H. Lee Dennison Building Veterans Memorial Highway Hauppauge, N. Y. 117fi~ County Planning Re: Property H/g Rte. 25, E/O ~lili Creek, Town of Soutbold {$CTM District 1000, Sec. 56 Blk. 4 Lot 24) Dear Mr. Junor: This letter is intended to advise your department of an application (Appeal No. 4091) pending before the Southold Board of Zoning Appeals by means of which an attempt is being made to rezone a substantial parcel of low-denslty residential land to commerci31 use in the guise of seeking a v~riance. A public hearing on this matter is scheduled before the ZBA at 8:15 PM on Nay 7, 1902 That such an attempt should be made in Southold need hardly prove surprising since the ZBA has a history of granting such "variances" to the politically favored rather as if it were dispensing largesse. Legal precedents and the proof required by law are disregarded. What shoud be of particular interest to your department is that the area in question is a critical environmental area, heavily wooded and abutting wetlands. It was recognized as such on the Long Island Regional Planning Board's Comprehensive Plan for the Town of Southold for the period 1190 - 2010. The plan indicates that the area be preserved as open space with the intention of future acquisistion by the County of Suffolk. I enclose a copy of a letter of even date to the Regional Director of the NYS Dept. of Transportation. The letter outlines the magn~itude and intensity of what is actually a zoning change as well as the impact on public safety and welfare should the application be approved. I respectfully request your department's intervention in this matter. Page 35 Public Hearing Southold ZBA 5/7/92 Appeal # 4091 Applicant(s): Eugene M. LaColla Location of Property: North Side of Main Road, Arshamomoque County Tax Map No.: 1000-56-4-24 & 19 The Chairman opened the hearing at 9:00 p.m. and read the Notice of Hearing and Application for the record. CHAIRMAN GOEHRINGER: I have a copy of several, actually not copies, but original surveys, the most recent one we have is received April 16, 1992 indicating the entire parcel which is thirty plus (30+) acres and the respected zoning and some elevations within the area or the building area that make part of these twenty-eight (28) acres. And I have a copy of the Suffolk County Tax Map indicating this and surrounding properties in the area. Is Mr. Cuddy present? How are you sir. Would you like to be heard? MR. CHARLES R. CUDDY: Yes sir. Good evening, I am Charles Cuddy, I represent really the LaColla family. This is a product of an estate. There were seven (7) children of Joseph LaColia who are now living. And four (4) of them are here this evening. They have had this property, which consists of what you said, twenty-eight (28) acres plus there is an additional two (2), one (1) of which is an island called "Paine Island" and there is a small piece, which is right on the edge of Mill Creek. They had this property essentially for the last thirty (30) years. They haven't been able to use it for any particular purpose during that time, and that is within purview of the zoning code. It is zoned at this time, mostly R-80. There is about two (2) acres of land along the Main Road that is zoned M-II. The M-II land, though included on the maps, is really not the subject of our application. The subject of our application is approximately four and one-half (4 1/2) acres that surround the M-II land and goes somewhat to the east of the existing M-II zoning. This property that we are talking about then, is essentially that property which is behind "Hollisters" both to the east and west of Hollisters and also behind Greenport Pottery and to the east of Greenport Pottery. And we are asking that a commercial use be applied to that particular locale. CHAIRMAN GOEHRINGER: Just before you continue, Mr. Cuddy, you are referring to the shaded area on map that I received of April 16, 1992. MR. CUDDY: That is correct. The shaded area, but in that shaded area is aiso some M-II Zone and the M-II Zone is marked by the surveyor, by VanTuyl, those three or four (3 or 4) pieces, ff you would like me to show them, just bring it up here. Page 36 Public Hearing Southold ZBA 5/?/92 CHAIRMAN GOEHRINGER: The portion is excluded toward the road.. MR. CUDDY: The M-II Zone is the small zone here and here, it is marked that way, it goes right across here. MEMBER VILLA: It is on both sides of the Oliver Property? MR. CUDDY: That is right. CHAIRMAN GOEHRINGER: In other words we are talking M-II this, this, and this. (Pointing to map) MR. CUDDY: That is right. We put that on there because it was all contiguous as one unit. CHAIRMAN GOEHRINGER: I should point out for those persons in the audience who want to see this, we will take a break in the, after Mr. Cuddy's presentation. I will let you look at the map and decipher a little bit and you will be in a better position to make your specific comments. MR. CUDDY: It maybe helpful also, we have the aerial photograph, which shows precisely the area. This is a 1990 aerial photograph. CHAIRMAN GOEHRINGER: Right, thank you Mr. Cuddy. MR. CUDDY: Eugene LaColla, who is here tonight, came to me approximately a year ago and discussed with me the plight of his brothers and sisters with this property. At that time, I went to the Town Open Space Committee, which I guess is now the Town Land Preservation Committee and I met with Mr. Ross who was the Chairman of it. And he greeted enthusiastically the idea that this become Town property. I met with him on a couple of occasions, had a great deal of correspondence with him and came to naught, because apparently for two (2) reasons, and I will put the correspondence in as part of the record. He indicated to me that Fort Corchaug was going to take most of the Town money, and there was probably a ve_,'y little left. And also, it would be very difficult for us to negotiate with the Town because we had to go through a survey process that would cost us ten thousand dollars ($10,000.00). And the Town at that point didn't want to indicate whether it was interested or not. And the Open Space committee wrote and told us that they just discontinued their interest in the property. But I have that correspondence and I am going to make that part of the record and I will hand up a group of things together. I also, point out to the Board that this property has been zoned pretty much the way it is for the past twenty-five to thirty (25 to 30) years, that is, the business part of this property, what is now M-II was business in the 1970's and the 1980's. And I have the map, done by VanTuyl, which shows from '72 to '87, just prior Page 37 Public Hearing Southold ZBA 5/7/92 MR. CUDDY (eon't): to the new code that this property had business use on it, that is the part that is Hollister's, the part that is Greenport Pottery, and so on, going back west was business and has continued to be business. CHAIRMAN GOEHRINGER: Wait a minute, this was part of the property and it was sold off at the time? MR. CUDDY: Some part of it was that had been, some of it was sold earlier, some it was sold after Mr. LaColia died. But what I am saying is that all of this property that is adjoining our parcel was business and continues to be business. Now it is M-II, so that wasn't done recently, that was done a long time ago. In 1985, Mrs. Richards obtained a use variance from this Board for her parcel. Her parcel is the one that is the most westerly and is in fact in the M-II Zone. She has a use variance to permit her to use as a storage barn or a shed. That large red structure, which certainly looks like a barn and that continues to the estate. I would also point out to the Board that when the LaCollas' obtained this property from their father, it was appraised, and I have an affidavit of appraisal in 1960. The appraiser at that time said that eighteen (18) acres more or less, and he missed by quite a bit but, indicated that it was worth thirty thousand doliard ($30,000.00). Interpellating that into a twenty-eight (28) acre or thirty (30) acre parcel, it worth approximately forty-five thousand dollars ($45,000.00). Since that time, the LaColia's have spent approximately forty thousand dollars ($40,000.00) in taxes on this property. I have reviewed in the office of the Treasurer, the Suffolk County Treasurer, the tax records. And for the last ten (10) years alone, they spent over twenty-thousand dollars ($20,000.00), for the previous twenty (20) years they spent over twenty thousand dollars ($20,000.00). So in fact, there is an expenditure by them of over forty thousand dollars ($40,000.00) on the property. I would also point out that there is no income produced by this property. There is nothing on it, it is vacant land. Approximately, twenty-one to twenty-two (21 to 22) acres of wetlands, it is our intention to preserve those wetland. We are only asking for approximately an extension of the existing business type zone for four and one-half (4 1/2) acres of the property. Below that is right along the Main Road. I would like to hand those things up to you. And I would also like to say at this time, that ail of the statements I make I affirm under the penalties of perjul~r and I would hope that everybody who testifies both for and against is sworn in so that there is a complete record of this. CHAIRMAN GOEHRINGER: Thank you sir. MR. CUDDY: If I may, I would just like to point out two (2) other things. To the best of my knowledge, this is an absolutely unique parcel. I don't think that there is any Page 38 Public Hearing Southold ZBA 5/7/92 MR. CUDDY (con't.): other parcel I can find that has zoning, there is no transitional zoning whatsoever. It is either heaving zoning, which is M-II, or it is R-80, and it is also three-quarters (3/4) wetlands and is on the Main Road. In fact, is between railroad t~acks on the north and the Main Road on the south. I don't think there is anything right now that has that type of zoning and hasn't been used by the LaCollas' because they haven't found a use for it, but that will be the subject of further testimony. I don't believe by what we are doing, that we are going to change the character of the area because you can see from the photograph, and Mr. Rumph wili later testify as planner, that essentially the small incursion and extension of business into that area is not going to change what is already is. I would like at this time though to have Mary Ann Feavel, who is a broker, testify on our behalf. CHAIRMAN GOEHRINGER: Mrs. Feavel, would you raise your right hand. information you are about to give us is the truth to the best of your ability. MRS. FEAVEL: Yes it is. MARY ANN FEAVEL: First of all, I would like to state that I am a licensed New York State real estate broker. That I have been actively engaged in real estate in the Town of Southold for approximately, it is either fifteen or sixteen (15 or 16) years, I didn't look up the date on my first license. I am currently the owner of A.W. Albertson Real Estate of Southold. And I have spoken to the LaColla family and to Mr. Cuddy, and I have informed them in that in my professional opinion, the current zoning of R-80 on this property and the use allowed for R-80 in the Town of Southold absolutely will not fit this land. Aside from the fact that I personally feel, professionally feel that housing would not fit, a nursery school, a cementary, a riding academy, a golf course will not fit on that particular section of land there, and the way it is zoned and the uses slated for is worth very, very little monetary value to the LaColla family. Thank you. MR. CUDDY: I would also ask Andrew Stype, who is a broker to come forward and testify. CHAIRMAN GOEHRINGER: Again Mr. Stype, raising your right hand. information you are about to give us is the truth to the best of your knowledge. MR. ANDREW STYPE: I will. I am Andy Stype from Stype Realty. I am an SRA appraiser, I had inspected the LaColia property back in the end of March of this year. I had found that it had consisted of about twenty-eight (28) acres total property. I would have to say, there is about twenty-two (22) acres that is under marsh land and also pie land. There is about five (5) The The Page 39 Public Hearing Southold ZBA 5/7/92 MR. STYPE (con't.): acres of upland and it is, almost all of the upland is just to the north of Route 25. In the area it is almost all commercial. They are some restaurants in the area, there is also boat marinas, hardly any residential at all. The only residential on Route 25, is there are two buildings there that each have a retail store front and also an apartment. The current actual makeup of the area would have to support the highest and best use, as a commerial use. And I would also like to point out that ff it were any other kind of use, ff it had the residential use, there is obviously a hardship involved and a big loss in value. It is in my opinion that if I placed a value only on that five (5) acres of upland, that it would have the value, commercial wise of almost two hundred and eighty thousand dollars ($280,000.00). If that five (5) acres is actually zoned only, just only residential it easily has a value of only sixty thousand dollars ($60,000.00), so there is a big difference of value there definately. So, I would have to say that your highest value is definately going to be business use. Thank you. CHAIRMAN GOEHRINGER: Thank you. MEMBER VILLA: Could I have a question of Andy? CHAIRMAN GOEHRINGER: Yes, sure, Andy, Mr. Villa has a question ff you don't mind. MEMBER VILLA: You have got five point four (5.4) acres, well approximately five point four (5.4) acres of that shaded area, that will an R-80 you could get two building plots. And you just said it would be worth sixty thousand doliars ($60,000.00), only thirty thousand dollars ($30,000.00) for a building plot of two acres with a pond view. MR. STYPE: Yes. The biggest reason why is because of the area buildings are all heavy commercial. It is, you would obviously lose a lot of value, if you have a residence in any area that has a lot of heavy commercial. Also back there, you have a lot of wetlands. There are two smaller cottages in the, back in the rear area, but they haven't been occupied in who knows how many years and in they're in awfully poor condition. Any type of residential area that is in a heavy commerical, easily is going to loose a lot of value. CHAIRMAN GOEHRINGER: Thank you. TAPE CHANGED CHAIRMAN GOEHRINGER: Do you have anybody else of expert testimony that is going to speak, other than the family, because we could take a quick break right now. Is the planner right here? Page 40 Public Hearing Southold ZBA 517192 MR. CUDDY: He can wait, that is okay. CHAIRMAN GOEHRINGER: He can wait, okay. In promising people in the audience, I will furnish them with my copy of my survey, they are welcomed to look at the map. We will take approximately a five (5) minute recess ladies and gentlemen. I offer that as a resolution. MR. CUDDY: I have extra copies. CHAIRMAN GOEHRINGER: Good, could you just lay them down right here, if you would Mr. Cuddy. Would you second that Mr. Doyen. MEMBER VILLA: I did that already. All in favor -AYE. RECESS MR. CUDDY: If we may, we would Hke to have Eugene LaColla address the Board. CHAIRMAN GOEHRINGER: How do you do sir? Anything you would like to say? Do you solomnly swear that the information you are about to tell us is the truth to the best of your ability. MR. EUGENE LaCOLLA: I do, I will. Since my father's death in 1960, we have paid taxes on this property for approximately thrity-two (32) years. We cannot sell it, we cannot do anything with it. We offered it several times to real estate brokers in the Town of Southold, and we have never had an offer, no one ever came. About two (2) years ago, I also went to a real estate here and they told me, they couldn't do anything with it. And, we feel, my brothers and sisters and I, feel that since there is business property all around us, that it would not change the character of the existing .land if it were reasonable to have a variance for business. CHAIRMAN GOEHRINGER: When was the last time the two houses were utilized, or the trailer and the house? MR. E. LaCOLLA: Over thirty (30) years, about thirty (30) years ago, since my father's death. It is not a house, it is a little cottage, summer cottage really and the other, really was just a conversion of a barn, and it hasn't been used in even before that. I would say, more than thirty (30) years ago. It was family occupied basically. CHAIRMAN GOEHRINGER: And the piece of the property that the family did own was the pottery place there? MR. E. LaCOLLA: Right, my father owned a whole entire plot, Page 41 Public Hearing Southold ZBA 5/7/92 MR. E. LaCOLLA (con't.): including HolHstere and the pottery place. CHAIRMAN GOEHRINGER: Do you recollect when he sold those? MR. LaCOLLA: He deeded, which is now the pottery place, he deeded that residence to my sister, who at that time there was no zoning in the Town of Southold, had a business there, a braided rug business. And we she sold it, the pottery people took it over. So, it has always been business, since she first occupied that place. She not only had a business there, she lived there too. CHAIRMAN GOEHRINGER: When Hollistere was the original tavern. MR. LACOLLA: My father had the tavern. CHAIRMAN GOEHRINGER: Your father had the tavern. MR. LaCOLLA: Yes, my father started that tavern, in the 50's. He rented a, he was to have an assisting building, was renovated and he started the tavern there. CHAIRMAN GOEHRINGER: Okay, when the present owners bought it, okay, did they buy it from the estate or from... MR. LaCOLLA: They bought it from my brother. After my father's death, my father intestate and the remaining brothers and sisters gave him a deed to that property because he had worked with my dad, and my brother in turn, sold it to Hollisters, to Tuminello, I don't know who he is, but I think that is his name. CHAIRMAN GOEHRINGER: Thank you very much. Is there anything else you would like to add for the record? MR. LaCOLLA: I just feel like, as I said, this variance will not change the character of the existing property or the land around there. And we are getting older, you know. Brother and sisters, my oldest sister is seventy-six (76) years of~ age. And my youngest brother is sixty (60). And we would like benefit from having this land all these year. You know, you inherit something, and we were paying taxes on it, that is not a very good inheritance. CHAIRMAN GOEHRINGER: What is the present tax bill on the property. I could ask you the assessment. MR. LaCOLLA: It is approximately twenty-eight hundred dollars ($2,800.00). Is that the price Mr. Cuddy? MR. CUDDY: Three thousand ($3,000.00). Page 42 Public Hearing Southold ZBA 5/7/92 CHAIRMAN GOEHRINGER: Okay, three thousand (3,000). And what do you do, you just pool that between the four (4) of you and that is how you pay the taxes? MR. LaCOLLA: Well, we have had discussions about that, some times we pay as a group, and some times, not as many has chipped in as others, but we have been chipping in for a long, long time. CHAIRMAN GOEHRINGER: I thank you for your comments, if you have any others, please don't hesitate. MEMBER VILLA: Jerry, could I ask a question? Having been a member of the Open Space Committee and the Farmland Committee, I would like to pursue that a little bit. Would the family still be open to acquisition by the Town, through that avenue if possible? I mean, were there ever numbers thrown around or put forth? There was never an appraisal done? MR. CUDDY: I don't know the answer to the question, whether they are still interested, but there was never an appraisal done because the correspondence I put into evidence, I think wili show, that we got to a point where we wanted to deal with the Town. We, in fact, put out an offer to the Town and asked us if they would come back and tell us, but they didn't tell us nothing. They would not give us an offer. They would not tell us when, what we could negotiate about. Absolutely nothing. MEMBER VILL: Well, you mentioned something about a survey... MR. CUDDY: We had, we were asked to get a survey. The reason that we didn't get a survey, because the Town wouldn't indicate if they were even interested in the property. The survey was by VanTuyl, who is a conservative surveyor, was ten thousand dollars ($10,000.00). VanTuyl suggested that we not get it until we at least got some indication from the Town that they were interested. We got none. And the letters that I put in evidence will show that. MEMBER VILLA: I can understand the committee asking for a survey, because they wanted to know what they are looking at too. I mean, I heard numbers here from eighteen (18) acres to twenty- eight (28) acres, so there is .... MR. CUDDY: There is no question as to the size of it. I don't think that anybody now, since the fact that twenty-eight (28) acres in unit, that you can see see here, there is about a half.(1/2) acre to three-quarters (3/4) of an acre on Paine Island and on the very easterly end, there is another haft an acre (1/2 acre), the total would be thirty (30). But, no one was questioning whether it was twenty-eight ox, thirty (28 or 30) Page 43 Public Hearing Southold ZBA 5/7/92 acres, what they were questioning, or we were questioning would they even be interested, there was no indication they were MR. CUDDY (con't): interested, even though they suggested at first they were very interested. No one came forward, I'm talking about Mr. Ross because he is the one I dealt with, and indicated to us that they were interested enough to even discuss numbers with us. And they, the Land Preservation Committee, came back to us and said they were discontinuing this discussion because they didn't have any money anyway. And that is in the writings that I put in. MEMBER VILLA: Well, there is monies now, so that is why I was just wondering if .... MR. CUDDY: I don't know that to discuss it again , you would have CHAIRMAN GOEHRINGER: I should point out for everybody here, we are not going to conclude this hearing tonight. This hearing will be concluded in the latter part of June, or the early part of July. And, we hope that at that time maybe Mr. Villa will independantly go and speak to either Mr. Ross or members of the Town to see ff there is any possibility of a revival. And this is not as an agent or anything else, this is a blind situation here, just to see if anything develops, if there is any interest, if he wants to conceivably, airight, and if it is airight with you. If that is a possibility. My main reason for stating that is that if anyone is not going to be around the latter part of June or the early part of July and would like to make a statement tonight prior to the completion to this hearing tonight, please do so, so that we don't lose your input. Mr. LaColla we thank you very much and where do we go from here Mr. Cuddy. MR. CUDDY: I would like Mr. Rumph to testify. CHAIRMAN GOEHRINGER: Raising your right hand, the information you are about to give us is the truth to the best of your knowledge. MR. RUMPH: It is. For the record, Mr. Chairman and Members of the Board, my name is Tim Rumph, and also, members of the audience who are interested in this application. My name is Tim Rumph, I am a landscape architect/land planner in principal and design for Design Properties Northeast out of Ronkonkoma. We prepare the visuals that you see in front of you, or you will see in front of you. In taking a look, at the request of the LaColla family at the zoning, and have done a sort of methodical approach to looking at how the parcel could be developed and come up with a conceptual suggestion for how that might be. Charles could you put that up there. What this first plan shows, is kind of a property that appears to be sort of a hodgepodge of information. But what we did is looked at the present zoning of the site, which was earlier indicated as the Page 44 Public Hearing Southold ZBA 5/7/92 MR. RUMPH (eon't): M-II portionaiso the R-80 portion. You will notice that crossed hatched area is the area that is the representated area on the VanTuyl survey. We also looked at the ponds and the wetland area and decided to draw a hundred foot setback line from those wetlands. We have assumed now, that we are not going to go any closer than the one hundred (100) feet to the wetlands which is in conformance with DEC, Health Dept. and Town wetland regulations, okay. And this is where we are coming up with that crossed hatched area, or what I am going to call "buildable area". You will notice that there is a stream that is located on the westerly, or the easterly portion of the site, that we have located as well. You will see in the conceptional plan that we have done, is we have stayed fifty (50) feet either side of that stream, so we are being conservative in our approach to the planning or the development of the site. And in looking at the site and walking the site and looking at it, it is a very unique piece of property, because of the environmental concerns, the existing marine business industry on the site, the location of the restaurant, the craft shop or the pottery shop that is there, and those, those buildings are all shown on that plan. You will notice that there is a sort of squiggly line that runs through from the easterly to the westerly portion. What we did was look at the FEMA maps, or the flood zone maps and it was shown that the portion to the north of the site is in an A-4 flood zone, which if residential structures or any structures were built in that area, those first floor elevations would have to be at elevation eight (8). And approximately that line is conforming to a five (5) foot contour line. And, so, what we have done is just sort-of just looked at it very quickly in terms of the different criteria for building and planning. And I think we can go to the next conceptual plan. Again, what we, in determining and taking a look at the conditions, we saw three (3) basic areas that could be realistically planned or approached or developed. We will start with the western most portion of it. We looked at a structure, the structures there or a possible business use there that were relate directly to that Marine II business, because they are marine businesses very close associated to it next door, at this point. So we felt that that area could be used for boat storage, boat sales, that sort of thing. As you move east, you see Hollisters down on the road and then you see the cluster of the three (3) buildings, which is the pottery site. Because there is no real access to the main road and no site distance, we felt that a possible professional or some sort of a low key commerical type of business could happen there, again, on a residential scale. I think, in the ordinance the limited business zoning that the Town of Southold has would be very conclusive to this, because of their criteria within that is very similar to the residentiai criteria. And as you move further east, you will see that little green space that goes all the way down to the Main Road, that is, the center of that is the stream, so that we have allowed the protection of that stream because it is a watershed Page 45 PubHc Hearing Southold ZBA 5/7/92 MR. RUMPH (con't.):because it is a watershed that goes across the road and goes into the south and also as well, I believe, it goes north, just watching. It depends whether the head rises on one side or the other, but I think it flows back and forth pretty easily. And then there is a knoll that is shown on the eastern corner, that we have shown a cluster of buildings, a very tight cluster of buildings in sort of a, I am going to call it a village green type of setting, and these would be retail, commerical, profession office in nature. Again, this is a conceptual idea of just looking at it, looking at maybe showing the parking and just how in relation of how things would flow together. If the Board has any questions, or anybody has any questions, I would be .... CHAIRMAN GOEHRINGER: The green that you are indicating on this map is basically the keeping of the existing foliage as it stays, as it presently exists. MR. RUMPF: Exactly right. CHAIRMAN GOEHRINGER: The conceptual approach as we have it here does not necessarily mean that you are looking at all three (3) of these sites, is that correct? Or you are offering as an approach .... MR. RUMPF: This is an approach to that entire, what we are calling a "bnildable area". We are seeing basically three (3) areas that can actually be developed .... CHAIRMAN GOEHRINGER: Exclusive of the zoning. MR RUMPF: Right. CHAIRMAN GOEHRINGER: Anybody else have any questions on the Board? Bob? MEMBER VILLA: Well, my only thought is that you are asking for an extension of the M-II, how will that impact on the properties across the street, which are all residential? You are saying there is no buffer, but now you are creating a situation where there is no buffer across the road for the residential properties on the south side. MR. RUMPF: I don't believe we are asking for the extension of M-II, I think we are asking for an extension of a commerical or a limited business use. If I may just go back to that, the, in terms of planning and how we look at it or how I look at pieces of property, you have in case of this piece of property, you have an M-II zone, which to me is more of a heavy marine business use. To be adjacent to a residential use, just doesn't seem quite right to me. In other planning and zoning ordinances that I have see, there is a transitional use or zoning between Page 46 Public Hearing Southold ZBA 5/7/92 MR. RUMPF (con't.): residential and heavy or heavy commercial use. And we are saying and thinking that maybe that limited commerical zoning eharacteristic that this the Town of Southold has might be appropriate in this condition. And that is what we looked at and that is sort of what we focused our energies on. CHAIRMAN GOEHRINGER: Thank you very much. I don't have any further questions. I would ask you, we are not deeply in need of the aerial, but if we could borrow the other two (2) maps, we will keep them in a well presented spot. We are not going to stick them down a basement somewhere and, we may ask you at the culmination of this hearing, to copy them for us. We are not asking for highlight and the different colors, but, we might ask you to copy them, but we would like to study them. MR. RUMPF: That would be fine. Again these were done, I just want to impress that these were done on a conceptual basis and we made some assumptions based on a walk-through, we really didn't study the actual location of wetlands, those kinds of things. But, we made assumptions, we took, I think we were very conservative in the approach that we took. CHAIRMAN GOEHRINGER: Thank you. Mr. Cuddy. MR. CUDDY: If I can point out two (2) other things to the Board. The property that is wetlands which is approximately twenty-one to twenty-two (21 to 22) acres, it is our intention to preserve as open space. In other words, we will covenant that that will remain that way. Secondly, I would point out that the LaColia family has indicated to me a willingness to cede to the Town a ten (10) foot strip that is on the easternly end of this property, so that the curve there could be softened or at least the lane could be widened. Because there has been some concern as to the traffic pattern in that area, because they have been having accidents there. And in order to avoid that situation, of course if somebody on the other side of the road would offer ten (10), it would give you twenty (20) feet, you could practically put a median in there, but they are willing to offer ten (10) feet. CHAIRMAN GOEHRINGER: Was there any discussion with the Highway Superintendant concerning this? MR. CUDDY: I have not done that. I have discussed it with the family as to whether or not that would be ..... CHAIRMAN GOEHRINGER: Alright, I thank you so much. We come now to the portion of the hearing where we ask if there are any other family members or any other people that are in favor of this application, they would like to speak? Seeing no hands... I am in favor of it as a family member Page 47 Public Hearing Southold ZBA 5/7/92 SECRETARY KOWALSKI: I just need your names, ff I could please. MR. JOHN LaCOLLA: My name is John LaColla. CHAIRMAN GOEHRINGER: Sir, next to you. MR. JOSEPH A. LaCOLLA: I am also in favor of this, my name is Joseph A. LaColla. CHAIRMAN GOEHRINGER: Thank you, and the lady in the rear. GENNIEVE RICHARDS: Gennieve Richards. CHAIRMAN GOEHRINGER: Thank you. Is there anybody in the audience that would like to speak against the application. If you don't mind, Mr. Flynn, I will let this gentleman go first. Could you state, could you raise your hand please. The information you are about to give us is the most appropriate, the word I am looking for, the most germane to this particular hearing and it is to the best of your ability. Thank you. MR. DONALD BALLIS: My name is Donald Bailis. I live in a house in Southold Shores, which is on the south side of the highway opposite of this property. And I did want to correct one (1) statement that was made two or three (2 or 3) times, it was stated that there was no residential homes in this area and Southold Shores has a least twenty-five (25) homes, so I think that should be recognized, the fact that there are residential homes in the area. The other thing, I would like to ask the people involved here, I guess they said they talked to the Town at one (1) time in the past, but have they ever approached a nature conservancy. The nature conservancy, I tb~n~, as you know, are very much interested in preserving all types of property. They have a couple of a thousand acres over on Shelter Island. And I don't think they have too much in this area, the North Fork, and it seems to me that they might interested in a piece of property Hke this, and I don't know ff they have been approached or not. CHAIRMAN GOEHRINGER: Well, we will ask them. We thank you sir. Mr. Cuddy. MR. CUDDY: The answer is no, after the experience with the Land Preservation Committee, we cowered. But we spent literally four and one-half, five ( 4 1/2, 5) months back and forth, so we did not instigate .... CHAIRMAN GOEHRINGER: Did you get that answer. MR. BALLIS: Yes. I just wanted to reply that the grant for the natureconservancy, they are very, very interested in preserving tracts of land from small, not only two thousand Page 48 Public Hearing Southold ZBA 5/7/92 MR. BALLIS (con't.):(2,000), but as small as five or ten (5 or 10) acres. They have very much interest for. CHAIRMAN GOEHRINGER: Thank you, Mr. Flynn. Oh, pardon me, go ahead. MR. LaCOLLA: I would like to say in answer to Mr. Ballis, that if the nature conservative made a reasonable offer to us, we would be w~lHng to preserve the land. But we have to have a reasonable offer. We have been paying taxes on this land for over thirty (30) years. CHAIRMAN GOEHRINGER: But, I think the issue here is, you are welcome to come up Mr. Flynn. I just want to react to this. You are welcome to up, you are welcome to come up. I don't think there was an offer made because at this particular time I am not answering a question for anybody, but correct me if I am wrong. I don't think there was an offer made, is that correct. MR. LaCOLLA: I said if. CHAIRMAN GOEHRINGER: There wasn't a offer made.. MR. LaCOLLA: I said if the nature conservancy made an offer reasonable, we would be willing to sell the land. MR. BALLIS: Apparently, there has been no approach made to the nature conservatory. MR. LaCOLLA: Our experience is with the Town of Southold. MR. BALLIS: Well, it would seem to me, it would be really worthwhile looking into, because of the fact that they are interested. And they do have special arrangements. I have gotten literature where they would be, take over property and give the person some sort of an income. They would get title to the property and in return, the person would get some sort of income, maybe for life. There are various kinds of arrangements and I really think it would be worth looking into. CHAIRMAN GOEHRINGER: We can't force an applicant to do that. All we can do is suggest it. Okay. Mr. Flynn. Do you solemly swear that the information you are about to give us is the truth to the best of your knowledge sir. I do. MR. F. M. FLYNN: My name is F.M. Flynn and I am resident of Southold Shores. As you and the Board realizes, this is quite a complicated matter. I have done considerable research on it, and I would like to refer to my notes. But the first question I would like to raise is the apparent conflict between the legal notice, the application, I should say among, the legal notice, Page 49 Public Hearing Southold ZBA 5/7/92 MR. FLYNN (eon't): the application and the map that has been submitted here. The legal notice says parts of Lots 19, and 24. The application includes the entire lots 19 and 24 and the map excludes Lot 19 and indicates part of Lot 24. I think that is an issue that should be clarified. CHAIRMAN GOEHRINGER: The legal notice that I have Mr. Flynn, says 1000-56-4-24 & 19. MR. FLYNN: I think it says part of it in somewhere in my copy. CHAIRMAN GOEHRINGER: This is the one I have, we can show you the original. Why don't you take my agenda, and we will show you. My question for the attorney representing, are 24 and 19 the entire thirty (30) arcres including the island? MR. CUDDY: Yes. CHAIRMAN GOEHRINGER: Okay. MR. FLYNN: Yes, it says to change use of a portion of subject propery. CHAIRMAN GOEHRINGER: Yes, but it mentions the entire property on the bottom of the legal notice. MR. FLYNN: Yes, that is correct, and I am saying that there is a comity here among the two (2) descriptions, among the lot, on the plan, the application and the legal notice. The application says the entire. SECRETARY KOWALSKI: It is all one (1) lot Mr. Flynn, that is why. MR. FLYNN: No, there are two lots, there is 19 and 24. SECRETARY KOWALSKI: Under zoning, it is one (1) lot though. That is why we advertise it that way. MR. FLYNN: I don't understand but I reserve comment on that and I would like to get to more substance of the issue, if I may. Now, the reason for the appeal, as I understand it, on the part of the applicant that it can't be used as zoned. Historically, it has been used as zoned. And, if then request a variance, my experience with variances is, is that variances are for specific uses. Now, the application actually presents the Board with a variable grab bag, or Chinese menu of uses. It offers you the option of extending the zoning or it offers you to use the property, not for light business in the application, but for General Business "B" uses. It is obvious that what is sought here is a zoning change. You realiy can't expend the existing uses, because the existing uses are in the ownership of Page 50 Public Hearing Southold ZBA 5/7/92 MR. FLYNN (con't):others than the applicant. The question here in my mind, is that, this is not the variances I said, but a request for a change of zone. And as such, in my opinion, it is a subterfuge by requesting a variance and it is a common ploy used by owners of marginal properties to increase that value of that property, manifold by reason of securing a change of zoning in the guise of a variance. Now, you, Members of the Board may well be familar with the respected legal publishing house of the West Publishing Company. And they have a text now called "Land Use" and I would like to quote from it, not at great length, but I think it is very germane, so the situation that we have here at hand. The text discusses at some length that the objections to use variances are sometimes considered spot zoning and they mention that many venues do not permit use variances because of abuse and they finaliy say, in this regard, that the burden of proof is on the applicant. Now, the exact quote to which I refer is, "if every Board of Adjustment and every Court were more aware of these factors and applied them more vigorously, excuse me, rigorously in place of bending them to meet the economic aims of developers and land owners, use variances would no longer constitute the synonym for evasion of zoning restrictions." As the matter stands today, zoning is as much characterized by the variances from it as by adherence to it. Even were this a legitimate application for a variance, as you gentlemen well know, but the members of the audience may not, the Board's powers are limited and delineated by Section 100, I believe it is 270B of the Town Code. In which the Board is limited to varying the strict letter of the Ordinance, provided the spirit of the Ordinance is preserved and the safety and welfare of the public considered. Now, it is hardly varying the strict letter of the law, or the regulation, to rezone approximately five (5) acres and as a result of this variance to provide contiguous nine plus (9+) acres of business zoning in this area. Now the spirit of the Ordinance, spirit obviously is a synonym for intent, and it is implicit in the ordinance itself, in the comprehensive plan, and in policy statements by members of the Zoning authorities in the Town. And among these policy statements that have been brooded about, is that the Town is opposed to strip zoning and that business uses should, future business uses, should be confined to hamlet areas. Now, with respect to strip zoning, were you to extend this zoning, approximately six hundred (600) feet to the east, as this application provides for, you would then have strip zoning virtually contiguous from Budd's Pond to Village of Greenport line. Now, as to public safety, I would like to reserve my comments to somewhat later. With respect to granting a variance, where is my opinion, this application is not only in the wrong church, but the wrong pew, were you to grant a variance, you would be avoiding the requirement that a change of zone would dictate, namely site review of this site. Now, zoning is obviously a legislative enactment. I don't wish to appear to be lecturing the Board, but this is generaliy for Page 51 Public Hearing Southold ZBA 5/7/92 MR. FLYNN (con't.): the benefit of the audience. And as such, it is the prerogative of the Town Board. Now, it was more or less admitted here that this property has been zoned as it is currently for some thirty-seven (37) years, through the submission or formulation of two (2) Master Plans and during the teneres of numerous Town Boards. The very diverse nature of the uses cited in the application and the sheer size of the property involved dictates an application for a change of zone. Now, even were, and I don't conceive this in my opinion, this property a suitable subject for a variance, you cannot avoid the requirements of the law of truth or for proof. Now, the applicant states that the ordinance creates practical difficulties or hardships. He maintains that it cannot be used residentially. We have heard a contradiction of that already this evening. Also, we are aware, that in the past it has been used residentially, and with respect to the taxes that are being paid on the property it might behoove someone that if it isn't still being used residentially, that they remove the assessment for residential improve- ments that are still on the property. Now, if it were used, it can be sold. It is not a question and it is not the municipal- ity's concern at what price it can be sold. It is necessary for the applicant to produce dollars and cents proof that the property has no utility and hence no value as zoned. Now, it is necessary to fully understand this problem, to know something of the historical background of the property. You have had indications of portions of it. This property was acquired by Mr. Joseph A. LaColla in 1946. The purchase price, at that time, was fifty-five hundred dollars ($5,500.00). Now, I had estimated the property to be thirty-three (33) acres of overall area at the time of the purchase. It appears now that might even had been larger, but calculated at thirty-three (33) acres that indicates a purchase price of one hundred and sixty-five dollars ($165.00) per acre. The historical division of the property started subsequent to the purchase obviously, and there was no zoning in the Town until 1957, the interim of eleven (11) years. In the interim period, in that interim period, the property was utilized by various members of the family. It has been carved up into these small haphazard, irregular parcels, by the family. So, ff there are practical difficulties, they had the option of using the entire property. They never did, they carved it up. So they created the practical difficulties. I, also, might mention, and this is a key issue with respect to the acquisition cost of the property. As you may know, I have been involved with real estate for over forty (40) years, and I have appraised numerous parcels in the interim. And a purchase price of a parcel is generally dictated by its utility. And when you pay a low price, or a relatively low price for a property, in this instance, it's indicative of the fact that there are practical difficulties on the property at the time of purchase. When you remove these areas, as it is contemplated in this plan, from consideration and confine it to a smaller area, then the practical difficulties and utilization of the property are Page 52 Public Hearing Southold ZBA 5/7/92 MR. FLYNN (con't.): obviously self-created. Now, I have with me a copy, and I shall present it to the Board, of an agreement among the members of the LaColia family in 1960, in was in September of 1960, and subsequent to ............ that I believe in January of 1960. And in that agreement, they apportioned this property, mention was made at the tavern property being conveyed to one of the sons I believe, but the property was apportioned generally among the others, including indications that portions of it were intended for residential use. Now, the claim is also made, that the parcel is unique because of configuration and location. I submit, that all real estate is unique in the sense of location and configuration and that in this instance, the location and configuration was discounted by the purchase price. Statement is also made that the property is unique and cannot earn a return and has no value, and that it is equivalent of confiscation. Well, as I said, we have had evidence to the contrary to the contrary by the applicant's own expert this evening. Where the rough value, and certainly not the doliars and cents value that is required by law. It was indicated that the residential portion of this property had a value of approximately sixty thousand dollars ($60,000.00). Applicant also claims, that the variance is in the spirit of the ordinance and does not change the district. Or were the application is being made is in an R-80 district. And obviously, what is intended here changes the use of an R-80 district. Now, the northeasterly portion of the property, and there has been mention of this, is a heavily wooded parcel fronting on a pond and in a critical environmental area. Raymond, Parriah, Pine, Weaber, when they prepared the Master Plan, put this property, classified this property as being best utilized as open space. Now, obviously, you can't ask a man to dedicate his property to open space without confiscation, but based upon the characteristics of the property, they zoned it R-80 and that R-80 has stood to date. It may also be of interest to the Board, and I don't know whether they are aware of this, that the Long Island Regional Planning Board in its comprehensive plan for the Town of Southold, for the period of 1990 to 2010 also classified that easterly wooded pie area of the property as open space with the intention of ultimate acquisition by the County of Suffolk. Now, as I mentioned, to extend this property six hundred (600) feet more or less easterly, or north easterly, would constitute an extention of strip zoning, which is against the stated intensions of the Planning authorities of this Town. Now, finally, the Board's primary function and primary interest should be in the public safety. Now, this property is located on the arc of a curve and constitutes an obvious traffic safety hazard. By reason of the arc of the curve, the line of sight for drivers is reduced. There is only a two (2) iane State Highway. The Town Highway Department obviously, would have nothing to do with this highway, it is only a two (2) lane highway. When you attempt, and I am saying this from personal experience, when you attempt to make a turn across that highway Page 53 Public Hearing Southold ZBA 5/7/92 MR. FLYNN (con't.): in the face of oncoming traffic and have to come to a halt, or to a relatively slow speed to attempt to make that turn, you are in imminent danger of being rear-ended. And that has happened to me on several occasions. The existing businesses there have nine (9) driveways intersecting the northerly side of Route 25. Opposite them... TAPED TURNED OVER MR. FLYNN (con't.): .... coming out from Southold Shores, and were you to expend this property easterly, you would then have the further eomplieation and hazard of additional traffic emanating from Tarpen Drive. Another complication to the traffic situation there, is the fact that to the east, you have the highway overpass over the Long Island Railroad, with a relatively steep change of grade, which also reduces the line of site, particularly hazardous in the summertime, with the additional traffic that is generated on Route 25, and you have moving the additional traffic which will emanate from Sage Blvd. from the marina, located on Sage Blvd. Overall, you have to figure the eummaltive effect of this proposition, and it would mean, at this hazardous and sensitive environmentally sensitive location, you would be creating nine (9) acres or more of business zoning, which has grown up in a haphazard, unplanned fashion, and were a variance granted, would not be subject to review by the Planning Board. There is, this constitutes in my mind, a very serious question of jurisdiction and support for the fact, were it needed, that this constitutes an application for a change of zoning. CHAIRMAN GOEHRINGER: Can I just ask a question? MR. FLYNN: Yes, surely. I am coming to the end, by the way. CHAIRMAN GOEHRINGER: How do you come to the realization that they wouldn't get site plan approval? MR. FLYNN: Well, I made inquiries of the Planning Board. And they say a variance is not their prerogative. Therefore, they don't review it, if it is granted as a variance. If I am wrong, I was misinformed. CHAIRMAN GOEHRINGER: Okay, go ahead. MR. FLYNN: The other question has been raised preferably here to, is the effect on the residents who do exist by the way, are fifty (50) somewhat lots in the map of Southold Shores, the effect on their health, safety, welfare, the value of their properties. And also, the fact that as the zoning procedures go, it is a situation that grows like topsy. If you grant it on one side of the road, the next application is on the other side of the road. So for all these reasons, I am opposed to this Page 54 Public Hearing Southold ZBA 5/7/92 MR. FLYNN (con't.): even being considered as subject to a variance. Now, with respect to some of the remarks that were made here this evening, I believe I heard correctly, that the residential portion of this property, estimated, would have a value of, in the neighborhood of sixty thousand dollars ($60,000.00) give or take. Now, I would point out, that it is not the municipality's position to weigh the relative costs, or the relative value of property, if they rezone it, or variance were granted. And as zoned, they are not the partners of the applicant and to meet the criteria for a variance you have to prove that the property has no value. I, again submit that there are numerous standards of proof that have to be met for a variance, and germane to this type of situation, you have to submit dollars and cents proof that the property is in all intense purposes has been confiscated and has no value. Now, we have proof to the contrary tonight. I would suggest that you reject this application and suggest that the applicant go where he belongs, namely before the Town Board and apply for a change of zoning. Thank you. I have some written material here that I would like to present to the Board. Thank you. CHAIRMAN GOEHRINGER: At the request of one of the Board members, we would like to again take a three (3) minute break, so to speak. I will offer it as a resolution. MEMBER DINIZIO: Second. All in favor - AYE. CHAIRMAN GOEHRINGER: .... And I do apologize. I offer a motion to reconvene please MEMBER DINIZIO: Second. All in favor - AYE. CHAIRMAN GOEHRINGER: Mr. Cuddy, where do we go from here? MR. CUDDY: Maybe not everyone is through testifying. I don't know if there is opposition .... I would certainly like to make a short rebuttal statement. CHAIRMAN GOEHRINGER: Certainly. I think you should at this point, that is the reason why I asked the question. MR. CUDDY: The members of the LaColla family have asked me to say factually that virtually everything that Mr. Flynn has indicated that they would state contrary to. From one end of his talk to the other. But, I as a lawyer, am much more concerned about the law that he announced to the Board that I have already got it and would suggest to him that he do one or two (1 or 2) things. The law set forth at least three (3) Page 55 Public Hearing Southold ZBA 5/7/92 MR. CUDDY (con't.): available volumes in the local library--one is called Rapcoff, another is called Anderson on zoning, another is New York Jurisprudence. Land use law and land use variances are not practical difficulties. Land use variances are basically from Otto vs. Steinhibler, which this Board knows about. And you have three criteria--one has to do with no reasonable return, one has to do with uniqueness, and the other has to do with changing the essential character of the area. And ff Mr. Flynn is going to come and talk for a half an hour, I think, that he should talk to what the law really is, and I don't think it is appropriate, in these circumstances, to talk about the law. I think you are interested in the facts. The facts, as my clients have testified to and what the various witnesses have testified to. Mr. Flynn, it is not a personal question, but, it seems to me that if you are going to talk about this property, you should address ourselves to what we are really discussing, and we are discussing four and one-haif (4 1/2) acres, we are discussing an extension of an existing type of zone, it is a business zone. It has been there for years, that was the whole point of pointing it out that is has been there for twenty-five to thirty (25 to 30) years. And we are asking simply, that it be extended on a four and one-half (4 1/2) acre piece. I don't want to go in, as I said in depth, to an apologia from my clients, but I believe we have an appropriate application. I would ask this Board to grant this application, and I understand that there is serious considerations that the Board has as far as possible offers to the Land Preservation Committee, somebody brought up a Nature Conservacy, but we will explore those things. But I would ask the Board, if it is going to adjourn it, to adjourn it to its very next meeting in June, not at the end, but in the beginning hopefully, and ask the Board to reconsider at that time. We will be available, all of my clients for any questions that you have, and we will be happy to explore any other considerations that you would like us to do. CHAIRMAN GOEHRINGER: Well, this is what I need from you. The only reason why I had suggested the last portion of the month of June, was because we have some serious problems that we are dealing with .... What need from you Mr. Cuddy is, and appears to me, from looking at the property, that thi~ five (5) foot contour line, which you are referring to as the stream, is really a deviation between the two (2) parcels, it really is. What I need from you is either the center line of the stream or beginning at the five (5) foot contour line, alright, assuming that this is an area that you wouldn't be touching anyway, as mentioned by the Planner, all the way up in to this particuiar portion right here. I need a calculation of acreage, based upon the shaded area to the west. And then I need a calucation again from the outside of the five (5) contour area, back up to again approximately this portion, alright, in calculations in this area. And that is what I need to continue with the hearing. As for the actual time, that we will reconvene the hearing, we will Page 56 Public Hearing Southold ZBA 5/7/92 CHAIRMAN GOEHRINGER (eon't): discuss it, I will recess it, without a date, and we will discuss it after the hearing here, and we will discussing it when we set up the next hearing, exactly. If we can fit it on, we will fit it on, if we can't fit it on, I assure you I will try not to make it go into July, okay. The problem is that we have some people writing letters to the newspaper. You have heard of the Arthur Carlson hearing, we must finish that hearing, on or about the first week of June, and that is the problem. Also, I want to be perfectly honest with everybody, including the LaColia family, once we go beyond eleven o'clock (11:00 p.m.) at night, there is a great degree of .... It is like the Lord diminishing returns, right. And it is not a consciencesituation, it is not anything that has to do with the public, alright. As I told the people in the beginning, I teach a three (3) hour at State University and really it becomes a real problem and then you sit here for more then four (4) hours. And, I just want you to be aware of that, I am not, there is no other way to tell you. And so, even if we stuffed it on and there may be elements that we might loose in dealing with that aspect of it. I just want you to be aware of that. It is nothing personal to anyone here or anything of that nature. But, actually, it is a benefit to have it start about the time it started tonight, to be honest. And we also apologize for putting it as the last hearing, but as you can see, the other hearings, apart from the satelite dish, were not terribly difficult, hearings. Okay, thank you. Mr. Flynn. MR. FLYNN:I would like to respond to what I consider a personal Taft. My, I am quite familar with Hardon Rapcoff's text , as a matter of fact, I worked rather closely with Mr. Rapcoff on several zoning eases. I'm also familar with Anderson on zoning and had that text plus many other text, extensive texts in my office. The question of practical difficulties is recited in the application. It was not x-ed out, it said unique and practical difficulties. And finally, having been involved in this area for some forty (40) years on and off and testifying, I know that the crucial thing in justifying a variance, is that there is no adequate return to the property, and in effect, the property is valueless. We have had testimony this evening to the contrary. Thank you. CHAIRMAN GOEHRINGER: Okay, yes, Mr. LaColla: MR. LaCOLLA: Do I have to swear in? CHAIRMAN GOEHRINGER: No, you just have to state your name. MR. JOHN LaCOLLA: My name is John LaColla. I just want to say Mr. Flynn, I didn't intend to speak tonight. But you brought up several things that, I don't think that our attorney did say anything to you personally, I think he is just speaking Page 57 Public Hearing Southold ZBA 5/7/92 MR. LaCOLLA (con't): about the law. You seem to know, what our innermost thoughts were. In 1960, as far as ! know, there was no agreement between my brothers and my sisters and myself, and you may have something there, that maybe somebody said something off the top of their head, but no way. Also, the fact that, you referred to the fact that my father bought this for five thousand dollars ($5,000.00). Whatever it was, I didn't even know that myself. That was 1946, I don't know how long you have been in your home, but I am sure it is worth a lot more right now, then when you bought it. And I would say, that what we are looking for here is not a conflict, and not, we are looking to ameliorate this thing from a point of view, from a reasonable point of view and we are asking for relief. That is all we are asking for. If you had, had somewhere there that was agressive and didn't care about the environment, my father kept that thing in a pristine state. We have to, and I think it has been to the benefit of the Town of Southold, I think that what our attorney stated about us sigrdng a covenant of leaving a major, major portion of that twenty-one or twenty-two (21 or 22) acres in perpetually in wetlands, it is open space, I think it is a sign of good faith. Other than that, we have made no attempt to develop that, and ail's we're looking at, as we get older, is a reasonable solution to have some way of getting out of this thing graciously, and with some return to us for the investments we have made over the past thirty-two (32) years. Thank you. CHAIRMAN GOEHRINGER: Thank you sir. MR. FLYNN: I have just a quick rejoinment, because it was addressed to me. You have in your possession, the agreement, a copy of the agreement that was made in 1960, so I don't have to testify to that again. It is self-explanatory. CHAIRMAN GOEHRINGER: Well, that is basically the reason for reconvening the hearing, because of what I asked for and allowing these people to look over these documents, rather than running out and reading them, coming back in, and reacting to them, that doesn't work, okay. We have seen that in the past, and that is the purpose of it. The only other question I have before closing, we would like to thank you ail for being here, I just wanted to ask Mr. Cuddy. Mr. Cuddy .... There are a few more people here who would wanted to object to, you didn't ask anybody else. CHAIRMAN GOEHRINGER: I said, we would reconvene the hearing, you haven't given me a chance to say that, okay. Because what happens is I forget to say these things. I am getting older, okay. As the moments pass. I hope the Town Board reads that, when they read this transcript. Mr. Cuddy, was there ever an application for any change of zone after the 1989 Master Plan Page 58 Public Hearing Southold ZBA 5/7/92 CHAIRMAN GOEHRINGER (eon't): update on this parcel? MR. CUDDY: Not to the best of my knowledge. CHAIRMAN GOEHRINGER: Okay, and you have always been the attorney, or you have recently been the attorney for the LaColla family. MR. CUDDY: In recent time, yes. MEMBER DINIZIO: Can I ask a question? CHAIRMAN GOEHRINGER: Yes. MEMBER DINIZIO: My main concern is, in front of me on the application is a copy of "Planning News" which states Otto vs. Steinhibler decision and the first question that, you know that for use variances, you know, is the land in question can it not yield a reasonable return. And in ali fairness, I haven't heard anybody tell me what a reasonable return on this piece of property is. You know, I have heard of value of sixty thousand dollars ($60,000.00) okay, I don't know how you relate that to a reasonable return. Are you considering the properties surrounding it and what they would yield, or are you considering, I don't know how you base that as being reasonable or unreasonable. It is very unclear to me and it is important for me because that first question that you have to, you can't get by, you can't get a use variance without answering that question first. How that brings you to before this Board as opposed to before the Town Board. Okay, I think you need to, the answer to that question has to be answered, in my mind some what before you even go any further, as I see it. It is not clear to me, okay, and in all fairness to you Mr. Cuddy, I would like to give you the opportunity to make that clear to me. What is a reasonable return on this piece of property, I have absolutely no idea. There is a lot of wet lands on there, but I can't place a value on that. MR. CUDDY: Do you want me to address it now or later. MEMBER DINIZIO: Well, that is up to you, I mean, it is going to go on again, but it is something to keep in your mind. MR. CUDDY: Fine, I yes. MEMBER DINIZIO: Okay, thank you. CHAIRMAN GOEHRINGER: It is my understanding that there are other people here that would like to address us concerning this particular appLication either pro or con. Yes maam. Would you state your name for the record, after I ask you to raise your right hand. Do you solemnly swear that the information you are Page 59 Public Hearing Southold ZBA 5/7/92 CHAIRMAN GOEHRINGER (con't): about to tell us is the truth to the best of your knowledge. Thank you. MS. LINDA LEVY: My name is Linda Levy and I am the Southold coordinator for the North Fork Environmental Council. SECRETARY KOWALSKI: I didn't get your name, could you... MS. LEVY: Linda Levy. Most of the points that Mr. Flynn raised are points that we would agree with and I do have a written statement here, in the interest of time, I am not going to go over all of the points that we would like to make because there are some of those that Mr. Flynn made, and I will give you a copy of my written remarks. One thing that I would like to reiterate, however, is that from the NFEC's point of view, this issue of whether or not this is a use variance or in fact a change of zone, is a major factor. Because, we believe that you can't get away from the philosophy of what is planning all about and what is purpose of the zoning codes and why do we have the different agencies and the different bodies of government here that we do have. And, unfortunately, if you look back over the last few decades in New York State, you read frequently that the ZBA's all over the State of New York and the use of the land use variance are frequently accused of being tools for spot zoning, gimmicks to give out favors, that kind of lan~,q.tage. I think that from the point of view of the NFEC, we believe that the Southold ZBA should be able to say, we are not involved in that kind of interaction. And this type of request for a land use variance, when in fact, it is a change of zone, there is no specific use being requested here. In the application that I have seen a copy of, it says, that the applicant requests that business use as in the General Business district be permitted on the upland acreage, limited to wholesale businesses, warehouses, contractors' business, office buildings, repair shops and retail sales. That is not asking for use variance, that is a change in zone. And, I also find it odd, that I am looking at this document that we got from the Town here, it says right here General Business "B" and tonight I come here and sit here and hear them talking about that they are asking for limited business well, that is not what this says and it is not clear to me how we are suppose to be responding to an application for a land use variance. When we get here, they are not even talking about the same request that I see written here. But, beyond that, our concern really is that we don't believe that this should be before ZBA. We really believe that this is something that should be coming before the Town Board as a request for a zone change and you will see in my written remarks that we do aiso feel that if you were going to look at it as a land use variance that the three (3) tests are not, have not been met, the three (3) proofs have not been met at this point, but as I said, I am not going to go into that in detail, because I think Mr. Flynn covered that pretty completely already. So I am just going to .... Page 60 Public Hearing Southold ZBA 517192 CHAIRMAN GOEHRINGER: Thank you Ms. Levy. Alright, is there anybody else? You want to say something? Hold on Mrs. Flynn, go ahead Mr. Cuddy. MR. CUDDY: I must respond to what people are representing is the law. I am troubled, really troubled, by people saying to you this is how you go about doing the land use variance. I have never done a land use variance where there has not been an objection raised by both Ms. Levy and Mr. Flynn that it is a change of zone. That is simply a ploy to use one of his words. Obviously, you are transferring a zoning use to another district, there is no question about that. But, land use variances are a type of variance that is permitted under certain conditions, they are not changes of zone. And I think that it is wrong to talk about it in those terms. The land use variance that we are here tonight for, I think, emphatically stated what it is. I would have to disagree that we have to say, and I think a reading of any of the texts will tell these people the same thing, you do not have to say exactly what you are going to do with the land that is being changed. The big question is the question that was raised by the Board member. Once you get past the question of whether you have reasonable or no reasonable return from the land, then it is really up to the Board. It is not necessarily up to the applicant to say what is going to be done with that land. You might find, for instance, that it should be industrial land, but that is the Board's determination. We made a projec- tion and Mr. Rumpf testified. That's all he was doing, was making a projected use, that's the use we think is appropriate. But, that is not part of land use variances. The land use variance can be dictated ultimately by the Zoning Board. It is not dictated by the applicant, and I think it is wrong to go on and on about that, because it is just a misuse of the law. CHAIRMAN GOEHRINGER: Thank you. Mrs. Flynn. You are going to be relatively quick, right. Again raising your right hand, the {,~/'ormatlon you are about to give us is the truth to the best of your knowledge. MRS. FLYNN: Of course, yes. I am Inga Flynn, I am resident of Southold Shores and a local real estate broker. I am broker for twenty-two (22) years and for the past ten (10) years, I am actively involved in real estate around here. Before I main- rained my own office in commercial and industrial real estate, I also was very active in assisting in appraisal work and successfully passed my SRA courses in residential and commercial real estate. And in my qualifications I can say that I was the vice-president of the Long Island Real Estate Board, I served as director for the New York State Association of I graduated from the real estate institute and my life is real estate, really. Last Year, I attended the Planning conference and also listened to our director, regional director of planning for Suffolk County and also was then a member of the Sub Page 61 Public Hearing Southold ZBA 5/7/92 MRS. FLYNN (eon't): Committee of Planning commercial real estate here in the Town of Southold, which was a sub committee in the High School. And the results of the committee was that commercial real estate and retail real estate should be in hamlet and we should not have any more strip zoning along 25 nor 48. And that was the ali over consent I think of at least ninety-five percent (95%) of the attendance of this sub committee and I guess the head of this sub committee, which was Mr. Gaggiano, then reported that to, I think, to the Town Planning. As to the need of strip zoning or more shopping centers, I would like to advise the committee here and the Board that we have quite a lot of vacancies of retail space in the Village of Greenport, as you know. We just recently have foreclosures on Route 48, where the retail space could not be filled and we have vacancies on Route 48. And, as to the value of the property, and I, again, Mr. Cuddy, I have to disagree with you, I think a continuation of something, when you create something new, I would think it is a rezoning and an extension. You are looking for extension or a continuation of a zoning which exists. So, in my opinion, you are creating a new zoning. I would like to go to the map and point something out. I have and assisted an appraisers Hke on Grumman and and very large appraisers on Long Island. And, as an appraiser, if you do go to an area and you look for values, you don't look only to the subject property, you most certainly look onto the all over effect. This property here, which is now zoned R-80, is opposite property which is zoned R-40 because and R-80. So, this property conforms now with this and surrounding zoning and there should be no shopping center here. And, if you want my opinion, he is looking for a continuation of the zoning, one cannot grant one man profit on this property and evaluate the property of all these people. Thank you. CHAIRMAN GOEHRINGER: Thank you. I must ask the remaining people who are in the audience, this is an unbelieveable situation tonight, but I do have a gentleman who wants to address the Board again, outside, so I am going to ask everybody if we could complete the hearing for the evening at this point, we will be back to see you, hopefully, you will be back to see us, sometime in the middle to the latter portion of June. We wish you safe home and, we thank you for your courtesy tonight. And this is both pro and con, and we thank Mr. Cuddy for his presentation. Is there anything Mr. Cuddy that you would like to say? No. Hearing no further comments I make a motion recessing the hearing without a date. MEMBER VILLA: Second. All in favor -AYE. End of hearing. (Transcrloe~ bY mpes recoraed 5/7/92.) PLANNING BOARD MEMBERS Bennett Orlowski, Jr., Chairman George Ritchie Latham, Jr. Richard G. Ward Mark S. McDonald Kenneth L. Edwards Telephone (516) 765-1938 MEMORANDUM TO: FROM: RE: PLANNING BOARD OFFICE TOWN OF SOUTHOLD Gerard P. Goehringer, Chairman Zoning Board of Appeals Bennett Orlowski, Jr., Chairman ~/~ Appeal No. 4091 Eugene M. LaColla SCOTF L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 DATE: May 6, 1992 This is in reference to the above-noted appeal which is the subject of a hearing at the Zoning Board's May 7th meeting. The application was advertized as a request fo~ a Variance from the provisions of Article III, Section 31, A. and B. (of Chapter 100 of the Town Code), for permission to "change use of a portion of the subject premises from residential to non-residential." On the application form, the applicant specifically asked that "existing uses be extended, or in the alternative that business use as in the General business (B) district be permitted on the upland acreage limited to wholesale businesses, warehouses, contractors' businesses, office builidngs, repair shops and retail sales." The Planning Board has reviewed this proposal in some depth for reasons that will become evident as you read on. The following information may be relevant in your review of this appeal. The subject property is a split-zoned parcel. Although the application does not provide this detail, we have calculated from the survey submitted with the application that approximately 1.47 acres of the applicant's property is zoned Marine II and the remainer is zoned R-80 Residential. The property owned by the applicant contains one dwelling. The applicant's request concerns the extension of non-residential uses to 4.653 acres of residentially zoned land. The existing commercial uses are on adjoining lots which are not owned by the applicant himself, although some of the lots may be owned by family members. Ail the business uses lie within the M II zoning district. They include a liquor store, a residence with a studio and pottery shop, a restaurant, a residence and a contractor's storage barn. Each of these uses are considered to be non-conforming uses in that they are not allowed uses within the M II district, although a restaurant is allowed by Special Exception in the M II district. There is a minimum requirement of 80,000 square feet per use in the M II district. We noted that the applicant did not specify whether any of the existing uses would be expanded, or whether new uses would be introduced. Although the applicant asks the Zoning Board to consider two alternatives, he actually puts forth only one option: and that is to allow the introduction (or expansion) of existing non-conforming uses on other, separate lots within the Marine II zone to the applicant's property in both the Marine II and the residential zone. The Planning Board has concerns about this parcel and application, which arise out of preliminary conversations held by the applicant's attorney with Planning Board staff, the Planning Board itself, the Chairman of the Board of Trustees and the Chairman of the Land Preservation Committee. The gist of these conversations and the accompanying correspondence are set forth herein. In July of 1991, Mr. Cuddy, acting as attorney for the LaColla family, approached the Chairman of the Open Space Committee, (now referred to as the Land Preservation Committee). On behalf of his clients he asked if the Town would consider the purchase, as open space, of a portion of the subject property for a price that had been determined based on the owner's estimate of the number of residential building lots that could be created. The advice of the Planning Board was solicited with regard to the estimated yield. The Board and its staff reviewed the survey and the aerial photograph of this property; and found that the survey of the property presented insufficient information upon which to make an educated estimate. It was evident from the aerial photograph that the property had extensive tidal and fresh water, wooded wetlands, all of which appeared to be within the jurisdiction of the Town Trustees and possibly the New York State Department of Environmental Conservation. The owner's map that had been submitted to us for review, did not accurately depict the extent of the wetlands. Therefore, a strong recommendation was made to have the wetlands flagged, whereupon the Planning Board would solicit the recommendation of the Town Trustees as to its accuracy. In fact, at the request of the Open Space Committee Chairman, the Trustees agreed to have their environmental consultant flag the wetlands, free of charge, provided that flagged line was added to a current survey to be made by Mr. La Colla's surveyor at their expense. The La Colla's did not pursue this reco~,,endation. Accordingly, the survey that has been submitted to you as part of this application does not give an accurate description of the nature of the property. A copy of the aerial photograph is attached for your comparison. If the Zoning Board decides to proceed with the applicant's request to allow the extension of non-conforming uses into a residential zone, the following observations are offered: A long environmental assessment form should be completed by the applicant. The subject property lies contiguous to Hashomomack Creek, which has been designated a critical environmental area by the Town Trustees. Therefore this action must be reviewed as a Type I action, subject to coordinated review with this Board, the Trustee Board, the State Departmenr of Environmental Conservation, the State Department of State and the County Department of Health. The applicant should submit written, financial proof that a reasonable return cannot be obtained from the property as it is currently zoned, for both the M II and the R-80 zoned portions of the property. Your Board may find the enclosed material on the landmark case, Otto vs Sternhilber, to be quite useful. The decision in this case set forth a test, whereby the owner must demonstrate the following: 1. that the subject parcel cannot yield a reasonable return in the respective zones of M II and R-B0. 2. that the owner's situation is due to unique circumstances, not the general conditions of the neighborhood. 3. that the proposed use will not alter the character of the area. In closing, I would appreciate receiving a copy of the minutes of the May 7th hearing of this appeal. Please let me know if my office can be of further assistance. cc: Board of Town Trustees Land Preservation Committee Town Attorney's Office 301 So. Allen St., Albany, N.Y. 12208 Vol. 52 No. 2 March-April, 1988 A Practical Guide To Otto By: Scott Chatfield, Esq. Scott Chatfield Associates, Inc. As a private practitioner specializing in municipal law, I have had to wrestle with the jumble that has arisen out of the case known as Otto vs. Steinhibler, 282NY 71, while advising my municipal, as well as private clients. When Otto was first decided, and indeed for many years thereafter, its three pronged test for judging the entitlement to a use variance was touted as a great clarification device in the world of zoning variances. Over the years however, numerous cases and articles have dimmed what was once the bright light of Otto. Questions have arisen regarding the real need to prove uniqueness and how "unique" is "uni- que''. If the proposed use alters the es- sential character of the locality, does that mean that the applicant gets no re- lief at all? These questions and many others seem to pop up every time a dif- ferent use variance case is heard. 1 hope in this article to propose a method of looking at the requirements of Otto which will put some logic and clarity into the process without taking too many liberties with the judicial intent of Otto. By wa~ of brief review, Town Law §267(5), Village Law §7-712(a)(c) and General Cities Law §81 (4) all provide substantially that "where there are prac- tical difficulties or unnecessary hard- ships in the way of carrying out the strict letter of[zoning] ordinances, the Board of Appeals shall have the power, in pass- ing upon appeals, to vary or modify the provisions of such ordinance...". Town Law §267(5). Mr. Chatfield is an Associate Director for the New York Planning Federation. He has authored articles for PLAN- NING NEWS, and is a frequent panelist at our Annual Planning & Zoning Institutes. The Court of Appeals in Otto, separ- ated "use" from "area" variances and stated that "unnecessary hardship" was required to prove entitlement to a use variance while the lesser standard of "practical difficulty" was required for area variances. The Court made this dis- tinction because it recognized in the use variance application, a far greater po- tential for an applicant's proposal to do violence to the purposes of the munici- pality's zoning ordinance than existed in an area variance application. After mak- ing the distinction between area and use variances, the Court announced the now famous (or infamous) three pronged test for use variances. To be entitled to a use variance an applicant must demonstrate in the record that; I) The land in question cannot yield a reasonable return if used only for a pur- pose allowed in that zone; 2) That the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood; and 3) That the use to be authorized by the variance will not alter the essential character of the locality. Otto vs. Stein- hilber, 282NY 71. Subsequent cases, too numerous to mention here, have made it clear that the first test of Otto, "reasonable return", must establish that the effect of the ordi- nance on the owner's land is to deprive him of the ability to derive a"reasonable return" on his investment. He must show this by dollars and cents proof in the record. Up to this point I have stuck strictly to the facts, but now I want to be argumen- tative for a moment. I believe that a large part of the confusion associated with the three pronged Otto test can be done away with if instead of thinking of an application as one for a use var- iance, we think of an application as one for "relief, the exact nature of which we have not yet determined". You see, typi- cally an applicant, upon recognizing some difficulty in using his parcel in ac- cordance with the ordinance, comes up with a specific proposal for his land if he can get a variance. Very often he not only has a specific idea but he also has a specific buyer. The result of this ap- proach, assuming the ZBA grants some of these requests, is to institutionalize "zoning by applicant fiat". What results from this approach to variances is a hodge-podge of uses with no discernable plan and no apparent rhyme or reason. In other words, a zoning mess. The way to avoid this pitfall, in my opinion, is to view an application for use variance as one for "relief, the exact na- ture of which has yet to be determined". By taking this view, the three prongs of the Otto test take on a new shading, which tends to highlight their particular functions, and minimize the confusion in their application. Let's take each test individually and see how it would fit into this approach. REASONABLE RETURN. In my - judgment, the reasonable return test is the only test required to decide if an applicant is entitled to relief. After all, if he has indeed proven, by competent dol- lars and cents proof, that the strict ap- plication of the ordinance to his prop- erty deprives him of any reasonable return on his investment, then to deny him some form of relief is effectively to condemn his property, something which the constitution says a municipality can't do without paying just compensa- tion. So, I would argue that you only need a one-prong test to decide if an applicant for a use variance is entitled to relief--has he shown that he can't derive (Continued on page 3) VoL 52 N Directors Region I Andrew Region III Joseph Region IV Howard Region v Cind~ Mildred Whalen Region VI Edward J. Region VII Nick Grill, Region VIII Elizabeth Region IX Dolores G. Past PreMdent, IN THIS ISSUE '*' ' !A Practical Guide to Otto 1 - ~ ~Awards Nominations Sought ..... ~No Dollars--No Variance ....... iZoning Decisions ............... Manuscripts ma cation. cate. Such New: Thec are fhose ol the author~ and o~ not AWARDS N VlINATIONS SOUGHT The New York Planning Federation is currently seeking nominations for candidates to receive one of our three prestigious awards at our Annual Planning and Zoning Institute, to be held at the Nevelc Country Club in Ellenville, October 16-18, 1988. In order to be eligible, the following criteria apply: · Individuals, municipalities and/or agencies in NYS are eligible; · membership in the Federation is not necessary; and · The award shall not be given to the same individual or agency more than once. Awards to be offered this year are described below: · Hugh R. Pomeroy Award, given for consistent high quality work and/or outstanding value of work in the zoning field, or to an individual, agency or municipality which has made an outstanding contribution to zoning in NYS through the development of a specific zoning ordinance or a legal agreement. · Henry H. Heissenbuttel Award, given for outstanding and/or innovative accomplishment in the planning field and/or for con- sistent support of the New York Planning Federation in its efforts toward better planning. · Edward Levlne Award, given to a volunteer member ora planning board or zoning board of appeals who has done an outstanding job for his/her community and/or the New York Planning Federation. Please submit nominations with supportive material no later than August 19th to: New York Planning Federation, 301 S. Allen Street, Albany, New York 12208, Attn: Awards Committee. Wizerd of Id O. tto (Continued from page 1) a reasonable return on his investment? If he has shown this then he gets relief--if not, he is denied all relief--it's as simple as that. One question, one answer--yes or no. Now, let's assume that the ZBA has decided, based upon the evidence pre- sented that the applicant has proven "no reasonable return", and is therefore en- titled to some kind or measure of relief, the next question is what kind of relief is he entitled to? Remember, we haven't decided that he is entitled to a use variance, only that he is entitled to "relief, the exact nature of which has yet to be decided". The sec- ond prong of the Otto test is necessary in my judgment to decide what type of re- lief should be offered to the applicant. UNIQUENESS. The Otto case makes it clear that an applicant cannot obtain a use variance unless his "plight" is due to unique circumstances and not due to the general conditions in the neighborhood, which may reflect the unreasonableness of the zoning ordi- nance itself. Stated another way, if the failure to yield a reasonable return is due to some factor which is common to sev- eral other properties in its neighbor- hood, then the answer does not lie in granting a variance, rather, it lies in changing the ordinance in such a way so as to allow the property to yield a reason- able return to its owner while still recog- nizing the limitations of the land which gave rise to the proof of no reasonable return. Let's take a rather common example by way of illustration. Assume that the owner of a parcel of land zoned only for single family residential use establishes that the road upon which his property fronts has, over time, been expanded or enlarged to the point where it now serves as a major traffic artery. The result of this change has been to render all sim- ilarly situated properties in the area vir- tually worthless for single family resi- dential uses. He proves that a qualified real estate firm has actively marketed his property for more than a year but has been unable to find a buyer at any price for residential uses. Obviously he is en- titled to relief but he is not entitled to a use variance. What should happen under these circumstances is that the ZBA should deny the use variance re- quest and should advise the legislative body that they must amend the ordi- nance so as to allow all owners who own land subject to this condition to use their properties in a manner which wilt allow them a reasonable return. The legisla- tive body could, for example, rezone the involved territory to a commercial cata] gory, or perhaps add specially permitted commercial or office uses to the residen- tial district uses, etc. If the legislative body fails to grant such relief, the owners could probably sue the munici- pality successfully for condemnation of their property, but that's a subject for a whole different article. The point is that the second test of Otto--UNIQUENESS--should be ap- plied only where the first test has been satisfied and then only for the limited purpose of deciding what type of relief the applicant is entitled to. ESSENTI,4 L CHA RA CTER. Let's assume that an applicant has satisfactor- ily established, 1) that he needs some kind of relief because he can't get a rea- sonable return, and 2) that the reason he needs relief is not due to a problem shared by other neighborhood proper- ties. If we reach this point then we have decided that the type of relief needed is a use variance. The question now be- comes--what uses should we allow him to have by this variance. This is where the third prong of the Otto test comes in, and 1 would argue that it only comes in if the first two tests are resolved as set forth above. In my opinion, the real purpose of the third Otto test is to create a fail-safe mechanism designed to protect munici- palities from the potentially disastrous effects of zoning by applicant fiat. If the use requested by the applicant would alter the essential character of the local- ity then he should not be granted a var- iance which authorizes the particular use which he has requested. Where is it written that the ZBA can only choose between denying the variance or allow- ing the applicant to do what he wishes? If we view the third Otto test as a test designed to determine what uses should be allowed, then the ZBA is not placed in this unhappy dilemma. Allow me another example by way of illustration. Otto says that to be entitled to a use variance an applicant must demonstrate that "the use to be author- ized by the variance will not alter the essential character of the locality." Let's ass.ume an applicant has estab- lished that he can't derive a reasonable return and that his plight is unique to his property, but he is asking for a variance to allow an automobile salvage and crushing operation on property zoned for residential purposes only, which is fairly near a commercial part of the community. Let's assume further that the proof shows that the automobile salvage yard would alter the essential character of the locality. Under these [ircumstances, I believe that it is incum- bent upon the ZBA to look at the whole world of other possible uses to see if any of them would allow the applicant a reasonable return without altering the essential character of the locality. Per- haps the land in question could be used for offices, or even a small scale neigh- borhood grocery store, etc. The point is, that if the applicant has proven that he is entitled to reIief, and if the appropriate type of relief is a variance, and if the applicant's proposal will alter the essen- tial character of the neighborhood, then it is incumbent on the ZBA to find a use or group of uses that will allow the ap- plicant a reasonable return without al- tering the essential character of the locality. The solution to this problem may prove difficult, but I see no prohibition in the cases or statutes of NY which would deny the ZBA the right to hire an expert and have him report on potential uses which would provide a reasonable return without altering the essential character of the neighborhood. I suspect that the expert's fees would be cheaper than the municipality having to pay to buy the applicant's property. In summary, 1 am advocating only a slight shift in the perspectives from which we view Otto, but I believe that this perspective shift allows us to see all three prongs of Otto in a clearer light. We end up with a serial approach to Otto's three tests, each test being de- signed to answer a specific question in turn as follows: 1) Should the applicant get relief?. --REASONABLE RETURN 2)Should the relief be a variance or a zone change?--UNIQU ENESS 3) What uses should be authorized on this property by way of variance? --ESSENTIAL CHARACTER It has been my experience that most variance applications will fall short of the required proof at test one or test two, and it will be the rare case indeed wl~ich needs to be decided all the way to test three. Accordingly, the handling of use variance applications could be stream- lined and simplified by following this approach without limiting in any way the rights of the applicant. Using the approach outlined here, the Planning Board could offer its opinions on the effect of the applicant's specific proposal on the essential character of the neighborhood, and this opinion may be of some value to the ZBA if and when it has to reach an opinion on the third test. 3 (Continue~ from Jan-Feb, 1988 Other Grounds for Denial: I) Whether the variance applied for is the minimum variance that is neces- spry. 2) Is the variance sought one that is ~erely desirable for the greater enjoy- ment of the property, as opposed to one that is necessary for continued practical utilization of the premises? (Bielak v. Zoning Board of Appeals, 78 AD 2d 435). 3) Is this hardship self-created? An area variance cannot be denied solely on the ground of self-created hardship, but it is a factor to be considered. 4) ls the plight of the owner due to personal problems of the owner as op- posed to matters dealing with the land or buildings? While an area variance may not be denied solely on this basis, it is a factor to be considered. To reiterate, the critical dollars and cents items are the' original purchase price, the current market value and the projected market value with the var- iance having been granted. As com- pared with the purchase price, if the dif- ference between the current market value and the projected market value is significant, then the applicant has proven his case as to significant eco- nomic injury. Once again we are dealing with dollars and cents proof. If it is not there, then deny the application. The other grounds for denial listed above are very important. Many times an applicant will petition for relief far beyond what he really needs. You have the power to cut it down. Please pay close attention as to whether this var- iance is one so that the applicant can more fully enjoy his property, or is it one that is really necessary for him to make practical use of his property? These days there are many applications for area vari- ances to permit de~ks to be built into the side yard set back. Do you believe for one moment that a deck is really neces- sary for the continued practical utiliza- tion of premises? The answer is no. The same applies to a swimming pool. It is not necessary for the continued practi- cal utilization of the premises or every house would have a swimming pool as a matter of course. Consider carefully whether these owners' problems are due to personal problems or whether they deal with land or buildings? 1 would remind you of the "drafty porch case" where this couple bought an old house. They had several childrcn. The children were sick all win- ter because of the drafts and snow blow- 4 NO DOLLARS -- IO VARIANCE By Russell L. Egleston, Esq. ing in around the front door. So the owner decided he would build a little entrance enclosure around the front door. He didn't know anything about front yard setbacks but he was soon to be educated on that term. The building inspector demanded that he tear down the enclosure. He appealed to the Zon- ing Board of Appeals and at the hearing, he even had the doctor testify that those kids are sick all the while, they have colds, the croup, the flu all winter long is caused primarily by that drafty porch with all the air leaks around the front door. This family really needs that en- trance enclosure in order that these kids not be sick. That is pretty heavy evi- dence coming from a medical doctor and so the Zoning Board of Appeals not bothering with these standards, well we have got to grant that variance and so they did. The next door neighbor ap- pealed and the Court said that the only reason why that man wanted that enclo- sure was for his personal problems, his kids getting colds. It had nothing to do with the land and therefore, the variance should never have been granted. Let's consider for a few minutes the conduct of the hearing. At the beginning of the public hearing, the Chairman should read the rules for the conduct of the hearing. He should explain that the petitioners will be heard first, the oppo- nents second, and then the petitioner will be permitted to wrap it up. It is advisable to suggest that everyone take the oath to tell the truth. This will elimi- nate a lot of needless chatter. The appli- cant can be reminded in the hearing guide that he may wish to bring his own court stenographer. The applicant should be cautioned in the hearing guide that if he intends to produce exhibits, then he should furnish them in seven copies. The secretary or preferably the ZBA attorney will stamp each exhibit and number it consecu- tively or affix a letter to it, depending on whether the exhibit is from the peti- tioner or the opposition. It is encour- aged that the hearing be conducted in an orderly fashion with only one person speaking and speaking in a fashion so The above are excerpts of remarks generally made by Mr. Egleston during our 49th Annual Planning and Zoning Institute in October. He has authored several articles on zoning issues for Planning News, and is a frequent par- ticipant at our institutes. that everyone in the room can hear him. This is a hearing that has to deal with the applicant's rights, the right to use his land in the manner desired. The ZBA is entitled to discuss the evi- dence, to weigh the evidence, and to dis- believe evidence. As we recited earlier, the evidence should find its way into the Findings of Fact. After the findings of fact have been made, then the Conclu- sions of Law should be set forth and these will deal with legal ramifications of the Standards of Proof and the proof that has been furnished. With those two things having been accomplished, the Decision will become obvious. All to- gether too often, ZBA members will play it by ear gnd will make the decision before the hearing even opens. That is absolutely wrong. Care should be exercised by the Board as to when it closes the hearing because the date of closing the hearing is significant. A time clock starts to run on the day when the hearing is closed and a Decision must be made within sixty days or the applicant will automatically receive the relief he sought. Where there is any question to be resolved, or any further inspection to be made of the premises, then by all means adjourn the hearing for continuance at the next reg- ular meeting. Many Boards make it a standard practice that no decision will be made on the night of the hearing. This will give them time to think over all that has been presented to them and to come up with probably a better decision. The ZBA has the power to impose conditions on the grant of any variance. However, a reason for that condition must appear in the Findings of Fact. In other words, there must be some reason to base that condition if there is no rea- son recited in the Findings of Fact then, upon appeal, the condition will be striken. If the Decision is contrary to previous decisions on nearly identical facts, then it is important under a recent Decision that solid reasons be set out in the Deci- sion as to why previous Decisions were not followed. In the past we have always said that prior Decisions were not bind- ing. Now that rule is not quite true. They are not binding, but if the Board departs from them, there must be a reason. The final resolution setting out the Findings of Fact, the Conclusions of Law and Decision should be set out in a formal fashion. It will probably cover , ~everal pares. At the end, there sho~[~ be 'l~rovisions for each ZBA member~l~ sign his name and to indicate how he vote~l on the Resolution. That final Resolution must be filed immediately in the Town Clerk's Office and a certified copy must be sent by registered or certi- fied mail to the applicant. The date of that filing in the Town Clerk's Office triggers another time clock. If anyone is dissatisfied with that Decision he has only thirty (30) days to commence an appeal in the Courts. This is called an Article 78 Proceeding. In that Article 78 Proceeding, a Court review proceeding, the only papers that the Court will have before it will be the Application, the Minutes, the Resolution and the Exhib- its. The Resolution will be the most im- portant document of all, because the Court is concerned with one thing and that is whether the Decision is arbitrary, capricious or is unsupported by evi- dence in the Record at the hearing? If there are no findings of fact and so on, then there is nothing on which the Court can decide and the case will be returned for another hearing withe lot of wasted expense. Underscore once more variance re- lates to the use of land. There is the story of a man who after having received a variance from a Zoning Ordinance sought to get another type of variance. He went to the Town Justice and said, I just got a variance from the Zoning Board of Appeals so that I can use my land for a use that is not permitted in the Zoning Ordinance. He went on to say, I want to drive my car 70 mph, I want a variance from the New York State speed limit. The answer to that is, speed laws have to do with pecsons. Once again, zoning has to do with land. Zoning has its faults and short com- ings, but nothing better has been contrived. It is easy to forget or perhaps I should say that it is difficult to appreciate at times that the Developer and the Town are poles apart. 'l he Developer is going to plan and develop and build in the cheapest and least expensive manner possible consistent with his objective to attract certain clients, certain tenants and so on. He will not spend one dime more than is necessary to achieve those goals unless he is a damn fool. He is not going to spend hundreds or thousands of dollars just to make a place beautiful. He will do it for his own selfish interest and for no other reason. The interest of the Town and its people and the neigh- bors is entirely different. They want this project to be beautiful. They want it to harmonize with what is already there. They don't want, their property depre- ciated. They don t want obnoxious uses to creep in. Remember to bear in mind, we are dealing with interests that are poles apart, The Zoning Board of Ap- peals and the Planning Board can do much to bring together and harmonize these interests, but don't for one mo- ment Ieave things to the role of oral promises, because they are soon forgotten. Zoning is not static. Zoning ordi- nance needs periodic revisions. If your Ordinance is older than six years, the likelihood is that it needs a major over- haul. Consider for a moment the new uses and there are new uses occurring all the while. Who ever heard of VC R mov- ie rentals ten years ago or six years ago? Who ever heard of video games ten years ago? Who ever heard of instant teller machines for banks five years ago? Everything is changing--that is the only thing of which we can be sure. And zon- ing ordinances must be changed to keep up with it. Zoning Ordinances must be changed also to take benefit of history. Things are changing within the Town, nothing goes as you plan it to be, so the Ordinances need revision. Older Zoning Ordinances are usually set up on a pyramid basis with single family home use at the top or apex of the pyramid. Single family home use may be called an R-I District. Beneath that--R-2 District which permits two families and one family. Beneath that--R-3 District which permits three family, two family and one family. Next down the pyramid is C- I District--permitting commercial, R-3, R-2, R-l,and then at the bottom is Industrial--permitting C-I, R-3, R-2 and R-[. In other words, Industrial is the catch all. We have learned that we do not attract industry if the district zoned for industry is a catch all. Good indus- tries do not want kids touring the grounds and spraying graffiti. They do not want them underfoot. They don't want them in the way of traffic. I do not intend to be harping on kids, but it points out the problem. The needs of industrial areas and good commercial areas are entirely different than the needs of a residential area. History has shown us that you cannot successfully allow multiple families and single fami- lies scattered willy-nilly throughout a district. Mosi towns are finding that the better way is to revise their zoning ordinance to the horizontal scheme whereunder no uses are repeated. R-I District permits one family and so forth. Industrial per- mits industrial and nothing else. Of course, in any given district, it may in- nde uses are of the same other which eral nature and which will not pro- duce any disharmony or adverse impact on other uses. Your zoning ordinance should be amended to prohibit any earth disturb- ance in contemplation of building to be done without a zoning permit and build- ing permit. Without such a prohibition you will someday be faced with a Devel- oper who will say "1 have spent several thousand dollars in getting ready to build this project and you have just got to give me that permit." We must be mindful that as soon as earth is dis- turbed or trees cut down, or excavation is started, then there is a commitment for that piece of l,and in a manner differ- ent than its previous use. We should remember that a zoning permit is valid only if there is nothing about the project that violates the zon- ing law. You may hold a zoning permit but if there is some zoning ordinance violation, for instance a side yard viola- tion, then that permit is void and the holder has no rights whatsoever regard- less of how much money he may have spent in reliance on the void permit. He has no vested rights whatsoever. In other words, the burden is passed onto the owner or permit holder to make sure that he complies with the law. The fact that he has a permit does not guarantee or insure him in any fashion whatsoever that all of the provisions of law are being satisfied. Likewise, a certificate of occu- pancy is no guarantee to the permit holder or to the occupancy holder that the building was built according to the Building Code, that the building is safe, that the building was built in accordance with the Zoning Ordinance. The build- ing permit and certificate of occupancy are for the benefit of the Zoning Officer and Building Inspector's employer, the Town Board and nobody else. They give no rights and no responsibility and no liability to the holder of the permit or certificate of occupancy. This will shake up a lot of permit holders, but that is the law. In the course of zoning ordinance vision, two major recommendations are made and they are to move all special permit authority from the Town Board and the Zoning Board Of Appeals and give it entirely to the Planning Board. The Planning Board is in the ideal posi- tion to deal with the special permit uses. Special permit uses should be discour- aged as much as possible, but where they are employed, it is imperative that standards be set up to guide the discre- tion of the Planning Board. If there are (Continued on page 6) 5 (Continued from page 5) no standards, then a permit will likely fail on appeal. A special permit is a strange breed of animal. A special per- ~oit use is one that is determined by the wn Board to be o.k. for this district provided that the applicant satisfies cer- tain additional conditions, and those are the standards. In other words, the appli- cant is halfway home if all he needs is a special permit. The second strong recommendation is that site plan review and approval be incorporated into the Zoning Ordinance. and that this be given to the Planning Board. The Site Plan Review and ap- proval process will enable the Planning Board to deal with such things as where the parking for an apartment project is to be located; where the driveways will be located; what type of lighting will be used for security; where will that light- ing be placed; will there be a burden on the sewer system; will there be a burden on the water system; will there be provi- sion for regular pickup and disposition of rubbish; wilI there be a playground and where will it be built; what trees and planting and landscaping will be re- quired; and will they be required to be replaced. What kind of trees and plant- ings will be planted; will they be of a type which will grow in this cold country? These sorts of things can be addressed by Site Plan Review. Site Plan Review is probably the most important unad- dressed issue in the whole field of zoning. When you leave this seminar you will hopefully remember these three things: ' The Master Plan sets out the goals, goals for the future. The Zoning Ordinance will imple- ment the Plan and determine "what can go where"?. The Site Plan Review Process will de- termine "what will it look like?" Hopefully all of you will be planning for January l, 2,000. This is a challenge. You have the tools with which to do it, and you have heard the methods to achieve it. It was a great pleasure to see this splendid audience and to note that not one person out of several hundred left the room. We are dealing with impor- tant things. Your most treasured possession--land. APPELLATE DIVISIONS In Matter of the County of Monroe's Compliance with Certain Zoning and Permit Requirements of City of Roches- ter, the Fourth Department addresses the always thorny problem of govern- mental, as opposed to proprietary, rune~ tions of a local government. The County of Monroe ("County") owns and operates the Greater Roches- ter International Airport ("Airport"), the terminal, runways, etc., of which are located on property owned by the County and situated in the City of Ro- chester ("City"). The Court finds itself presented with the "novel question" of whether the planning, design and construction of proposed Airport improvements are subject to the site plan review process and permit requirements of the City. The Court holds that the County is exempt from these requirements be- cause "the County is authorized by stat- ute to operate and maintain the Airport and the Airport expansion involves a governmental rather than a proprietary function." The Court finds that, as a general rule, a municipality is not subject to lo- cal zoning or building restrictions in the performance of its governmental, as dis- tinguished from its proprietary, activi- ties (citing Little Joseph Realty v Town of Babylon, 41 NY 2d 738; Nehrbas v Incorporated Vii. of Lloyd Harbor, 2 NY 2d 190). But, the Court admits, it is not easy to distinguish one from the other. The Court makes the distinction as follows: "IT]he governmental functions of a municipality are those conferred upon it as a local agency, to be exercised not only in the interest of its inhabitants, but also in the advancement of the pub- lic good (see, Walla Walla v Walla Walla Water Co., 172 US I. These in- clude the expenditure of money relating to public improvements. A distinction between acts in the performance of a governmental function and those in the performance of a proprietary function is that in the case of the former the munic- ipality is executing its legislative man- date with respect to a public duty gener- ally, while in the latter it is exercising its private rights as a corporate body (see, O'Brien v Town of Greenburgh, 239 App Div 5551 aff'd !266 NY 582). Typical examples of municipal govern- mental functions are the exercise of em- inent domain, assessment and collection of taxes, police and fire protection, wa- ZONiNC ter treatment and sewage and garbage disposal." Citing cases from other states, the Court finds that the overwhelming au- thority in other jurisdictions is that the operation and maintenance of an air- port is a governmental function, and holds that that is the case in this matter. Being a major facility, located on inter- state air routes and utilized by public and private aircraft traveling both lo- cally and interstate, the Airport "is op- erated for the benefit of the general pub- lic and not for the particular advantage of the inhabitants of the City or the County." Planning board vote not in accordance with law. In Matter of D. E.P. Resources, Inc., v Planning Board of the Village of Ma- lone, 131 AD 2d 757, 2 out of the 5 members of the planning board voted to deny petitioner's application for subdi- vision plat approval. One member dis- qualified himself, one was absent, and of the members present, one voted in favor of the application. Pursuant to Section 41 of the General Construction Law, whenever three or more public officers are given any power or authority, a majority of the whole number of such persons or officers shall constitute a quorum, "... and not less than a majority of the whole number may perform and exercise such power, authority or duty". Accordingly, the Appellate Division (Second Department) holds that since the planning board consists of 5 members, at least three of them must concur on a given resolution in order for there to be a valid exercise of the board's powers. Further, in view of the fact that this was not done, the planning board failed to validly approve or disapprove the petitioner's application within 60 days, and therefore the subdivision ap- plication is deemed granted by default, pursuant to Section 7-728 (4) of the Vil- lage Law. Town board cannot usurp planning board's authority. In Worthington v Planning Board of the Town of Carmel, 131 AD 2d 466, the planning board, in May of 1984, re- ceived an application for approval of a subdivision plat. In November of 1984, the town board passed a resolution that the subdivision application be accepted for open development, subject to certain conditions. In February of 1985, the DECISIONS ~ planning board granted final subdivi- sion approval to petitioners, with no re- strictions upon the future subdivision of 5 newly created lots. thc ~ln February of 1986, the town board issued a resolution "clarifying" the one of 1984, which, among other things, prohibited further subdivision of the open development area. Petitioners' ap- plication to subdivide one of the parcels of land which had been created by the initial subdivision was denied by the planning board based on the town board's clarification. The Second Department holds the clarification by the town board of its prior resolution was improper. Town Law, section 28-a (4) provides that a town board may, by resolution, establish an open development area within the town in certain circumstan- ces, and, if there is a planning board in the town, "upon such conditions and subject to such limitations as may be prescribed by general or special rule of the planning board". The statute also states that before establishing an open development area the matter shall be referred by the town board to the plan- ning board for its advice. Similarly, Sec- tion 276 of the Town Law provides that the town board may empower the plan- ning board to approve preliminary and final subdivision plats. The Court holds that under the facts and circumstances of this case, the clari- fication by the town board "was a usur- pation of the authority of the Planning Board to impose conditions and limita- tions upon the open development area, as well as upon the authority of the Plan- ning Board to approve or disapprove subdivision plats (see SRW Assocs. v Town Bd., 121 AD 2d 713; 1979 Opns Arty Gen 147-148)". Consequently, the town board's reso- lution of February, 1986, is annulled; the planning board's determination of April, 1986, which was premised on that resolution, is also annulled, and the matter remitted to the planning board for a new hearing and determination. (ED. NOTE:) The original application for subdivision approval was submitted to the planning board in May of 1984. The first town board resolution was in November of 1984. In Febru- passed ary of 1985 the planning board granted final subdivision approval. Since way more than 45 days passed, why didn't the applicant get default approval of his plat? Denial of use variance arbitrary and capricious. In 1973, Petitioner received approval to develop and construct a residential subdivision consisting of 21 building lots, each with a duplex constructed there- on. The subdivision plan also provided for the construction of a two-story community recreation building, along with a swimming pool and proposed tennis court. The tennis court was never built, and the swimming pool was closed because it was not economically feasible. In 1977, petitioner obtained a build- ing permit to construct two residential units on the seond floor of the recreation building and created an illegal unit on the first floor. After pleading guilty to zoning violations, he applied for a use variance to convert the former recrea- tion building into a multifamily, four- unit apartment building. The use var- iance was denied, and petitioner's Article 78 proceeding dismissed. The Third Department, in Matter of Kontogiannis v Fritts, 131 AD 2d 944, holds that the denial of petitioner's ap- plication for the use variance was arbi- trary and capricious, reverses the lower court's judgment and annuls the deter- mination of the zoning board of appeals. After reciting the Otto v Sleinhilber tests for the determination of a use var- iance application, the Court holds that the ZBA did not address whether peti- tioner met the first two elements of this test (lack of reasonable return; plight of owner due to unique circumstances). The ZBA merely made conclusions as to the effect of the proposal on the charac- ter of the neighborhood and found that the alleged hardship was self created. The Court finds the ZBA's conclusion that the original purpose of the recrea- tion building, i.e., to be converted into multifamily use in a few years, was without support in the record, the evi- dence showing that its original purpose became obsolete. Thus, the hardship was not self created. Further, the ZBA's findings that the proposed multifamily use would not be in harmony with the intent and purpose of the town zoning ordinance, are also found to be without merit. The ZBA's findings on the effect of the proposal on the character of the neighborhood "are not supported by substantial evidence in the ['ecord", and the ZBA did not address the above- mentioned two tests at all. Therefore the matter is remitted to the ZBA for further proceedings. Unnecessary hardship not proven. Petitioners, owners of property in a single family zone, brought an Article 78 proceeding to contest a variance granted to an adjoining property owner to erect a sign and provide off-street parking. Supreme Court dismissed the petition. In Matter of Varley v Zoning Board of Appeals of the City of Saratoga, 131 AD 2d 905, the property in question was purchased in 1979 for $42,000, with $1,000 in improvements added. Spor- adic attempts were made to sell the property, by placing newspaper ads and putting a sign on the premises. The property was never listed with a realtor. The asking price was $125,000, and offers of $50,000 and $65,000 were rejected. The Third Department finds that ex- pert testimony at the hearing showed that the fair market value of the prop- erty for residential purposes was $65,000 to $75,000, whereas its value as com- mercial property exceeded $100,000. The Court finds that no bona fide at- tempt was made to sell the property at its residential value, but only at its commercial value. The Court holds that a use variance may not be granted merely on the ground that a variant use will yield a higher return than those permitted by the zoning regulations. Accordingly, it is held that "the proof failed to establish that an unnecessary hardship would re- sult from denial of the variance" under the Otto v Steinhilber rules. Public health, safety and welfare not enough in site plan review. In Matter of Apache Associates v Planning Board of Village of Nyack. the planning board denied petitioner's ap- plication for site plan approval based. among other things, on the finding that "approval of this amended site plan would not be in the best interests or the advancement of the health, safety and general welfare of the public in general and particularly of the residents of the immediate neighborhood". Petitioner appealed a dismissal of his Article 78 proceeding, and the Second Department reverses. The Court holds that "we have re- cently held that a planning board may not base its determination respecting an application for site plan approval solely upon its view of what is beneficial for the public health, safety and general wel- (Continued on page 8) 7 Zoning Decisions... (Continued from page 7) fare. Rather, a planning board must make a determination with reference to the specific design and layout factors enumerated in Village Law, Sec. 7-725 (see Moriarity v Planning nd. of ViL of Sloatsburg, 119 AD 2d 188). Accord- ingly, the determination now under re- view, which was made without any ref- erence to the design and layout factors, must be considered arbitrary and illegal, and is accordingly annulled". CHARLES R MAY LANDSCAPE ARCHITECTS, EC. Site and Land Planning Environmental Impact Studies Project Management Development Feasibility Urban Design/Planning 777 SOUTH ROAD POUGHKEEPSIE, NEW YORK 12601 TELEPHONE: 914-297-0418 The New York Planning Federation Announces Membership Consultation Services The Federation's Counsel, Shel- don W. Damsky, Esq., will be available in our office to discuss planning and zoning matters with our members. Counsel office hours are: Mondays 9:00 am-12:00 pm Tuesdays 9:00 am- 3:00 pm Fridays 9:00 am-12:00 pm Members may write to Mr. Damsky at the Federation's offi- ces, or telephone during the above hours 518-489-8116. TRAFRC ENGINEERING/ TRANSPORTATION PLANNING, SINCE 1965 I*EAFRC IMPACT SOLUTIONS · shopping centers · industrial plonts · residential projects · ~C 85 soft.ore ARTERIAL/COLLECTOR ~YS~EM PLANS · cenffal bus, ness district · co~tclo~, bridge studies · CARS software TRANSIT PLANNING · school bus systems · SBi~AGS so~*~ore · social sen~ice transp(xtaflon Roger Creighton A~,~k,l~s Incorporated 274 Dek~ctre A~e Delmar, NY 12054 (518) 439-4991 ROYT. BUDNIK · · & ASSOCIATES, INC. Geological Consultants In Service To: ° Planners o Engineers ° Developers ° Governments We Conduct/assist with: ° Site Plan Reviews ° EAF/EIS Preparatign ° Master Plan Formulation o Permit Application ° Impact Mitigation ° Land Reclamation P.O. Box 2875 Poughkeepsie, NY 12603 914-485-6911 HURRY! MARK YOUR CALENDARS NOW! The dates for the 1988 and 1989 Annual Institute are: October 16-18, 1988 · October 15-17, 1989 Watch for the registration forms in PLANNING NEWS, and send your reservations in as soon as possible to ensure your accommo- dations. WE'LL SEE YOU ,THERE! Valerie Scopaz Southold Planning Dept. Town Hall, Main Road Southold, NY 11q71 Non-Profit Org. U.S. Postage PAID Permit No. 200 %lbany, New YoH, Subscribers who wish to change their Mailing Address please correct and I~EW YORK PLANNING FEDERATION return your mailing label to the Federation. 301 So. Allan St. Albany, N.Y. 12208 NORTH FORK £N¥1RONklE:NTAL COUNCIL Route 25 at Love Lane, PO Box 799, Mattltuck, NY 11952 516-298-8880 May 7, 1992 Gerard Gehringer, Chair Zoning Board of Appeals Southold Town Hall Southold, NY 11971 Re: Eugene M. LaColla, et al. SCTM ~ 1000-56-4-19 & 24 Dear Mr. Gehringer, On behalf of the North Fork Environmental Council (NFEC) I would like to take this opportunity to express our objections to the above referenced application for a use variance. First, we believe that this request qualifies as a change of zone, not a use variance as suggested by the applicant. No specific extended use is being requested, rather this is a request for the parcel to be permitted all uses under the General Business (B) district. Such change of zone requests, as you know, are legislative decisions which must come before the Town Board. In addition, if such a broad use variance were to be granted, the applicant would be able to avoid the requirement for a site review at the time of development, as would be required if the zone were changed to General Business. Even if the application were determined to be a use variance, we believe that the applicant has not met the three tests of hardship as required under law. The applicant cites as hardship that the parcel cannot be sold as currently zoned. This has not been satisfactorily proved. It has been held repeatedly that such hardship must be shown by dollars and cents proof. Furthermore, it is not the responsibility of the ZBA to ensure that a parcel earns its greatest possible return. The use variance is not justified simply because the applicant might earn a greater profit if the parcel's use were extended. The applicant states that the hardship is unique due to location -- if that were sufficient definition of "uniqueness" every parcel in Town would be considered unique. He also states that the inability to use the property as permitted makes it unique; that assertion remains to be proved. a non-profit organization for the preservation of land, sea, air and quality of life printed on 100% recycled paper p.2 Lastly, as to character of the district, this use variance would damage this particular area irreparably. The parcel in question is in a critical environmental area, adjacent to wetlands. In fact, the original RPPW study recommended that this very parcel be maintained as open space. In addition, the application disregards public safety in that new business development will increase traffic on an already dangerous section of Route 25. In closing, we would like to reiterate our foremost concern -- that this is a change of zone, not a use variance. The role of the ZBA in this State and the granting of use variances has come under fire on many occasions. Use variances have been labelled gimmicks for spot zoning and granting favors. In denying this application the Southold ZBA will maintain its integrity as a responsible element in zoning administration. Thank you. Sincerely, Southold Coordinator North Fork Environmental Council May 6, 1992 Board of Zoning Appaala of the Town of Southold Town Hall Main Road $outhold New York 11971 Re: Application of Eugene M. LaColla, et el for e variance Appkicetion No. 4091 Gentelman: With reference to the public hearing on the above referred to variance application acheduled to take place before your Board at ita meeting to be held on Thuraday evening May 7th, 1992 ! wieh to go on record aa oppoaing the variance and/or veriancee applied for. From an examination of the pepera eubmittad the application apparently appliea to ~o percale the easterly one of which contsins either about 5.4 acres or 58 ecraa more or less depending dspending on how the app- lication ia interpreted. In either casa the extsnt of the variance requaatad ia ouch thst grsnting it would be tantamount to establiehing a new Zoning District, namely a commercial or buainasa district in place of e diatrict zonsd for reetdsntial uss. Such a grant would con- atituta an legislative act which is beyond the power of the Bosrd of Appaala. It must bs noted that ths applicant raqueata that buainesa uaae aa in the General Buainaaa (B) Diatrict be permitted on the acre- age limited to wholaaela buainass, warahouaea, contrectora businaea, office building, repair ahop and retail sales csrtainly outlinee a raquaat for a new zoning diatriot. Among other taeta eatsbliahad in the landmark caaa of Otto v. Stain- hilber 282 NY 71 an applicant for a uae variance muat aatabliah by adequate svidencs that the currsnt zoning prohibite the only use of the land which is economically faaaibla and effectively prevente devel- opement of the lsnd. In the ebeenca of proof that a reasonable return cannot be raalizsd through permitted uaea the granting of a uae variance is improper. A use vsriance may be grantsd only where the spplicant has ahown that no uae permitted by the zoning ordinance will bring a raason- sble return. Village Bosrd of Fayettavills v 3arrold 75 AD2d 994, 429 NYS2d 110, aff'd 53 NY2d 254, 440 NYS2d 908; Oarmein v Hamburg 72 AD2d 575, 421 NYS2d 29. Boerd of Zoning Appeale - page The developement of the p~operty for reeidentiel uee ¢oneietent with the reeidential charecter of the area in which the property is located ie feesible and would bring the owner a more than adequate financial return. An applicant for a use variance must demonstrate lack of reasonable return by eubetantial evidence which must include dollars and cents proof. Failure to sell land for a permitted use is not evidence that it will not bring e reasonable return for such use only if the owner has made an active effort to eell. Blumberg v Siegel 8? AD2d 650, 448 NYS2d 522, see also Village Board v 3arrold cited above, Moore v Nowakoweki 44 AD2d 901, 355 NYS2d 882 modified 46 AD2d 996, 361NYS2d 795; Cities Service Oil Co v Saooa 54 AD2d 981, 389 NYS2d 26. A Board of Zoning Appeale may not grant a use variance on the ground that the use ~equeeted will yield a higher return than eny of thoee permitted by the zoning ordinence. Congregation Beth E1 v Crowley 30 Miso 2d 90, 217 NYS2d 937; Croiesent v Zoning Board of Appeale 83 AD2d 673, 442 NYS2d 235; Everhert v Oohnston 30 AD2d 608, 290 NYS2d 348. Therefore the application of LaCallo, etal, must be denied. My neighbor Dr. Edouard Beaugard of 830 Tarpon Drive also opposes the application and has authorized me to advise the Board that he joins in my recommendation as set forth above. He like the undersigned will not be able to attend the hearing. Mr. Gerard P. Goehringer Chairman, Board of Appeals Town of Southold Town Hall 53095 Main Road PO Box 1179 Southold, New York 11971 GD ~T,E$ R. 180 OLD C~OI.TNTRY ROAD (I~TE. P. O. BOX 1547 i~IV~a~EAD, NY 11901 June 22, Re: Eugene La Colla - Use Variance Dear Mr. Goehringer: In accordance with your request made at the hearing in this matter, we are enclosing six (6) copies of the revised map of the La Colla Estate showing the proposed commercial parcel further subdivided east and west of the drainage ditch. Very truly yours, Charles R. Cuddy CRC:ejc Encs. OHARV.~S R_. 0131)DY ~TTOi~Y AT LAW 180 OD C~UNTHY ROAD (RTE. RIVW~W{EAD. ~q~ 11901 April 13, 1992 Town of Southold Board of Appeals 53095 Main Road, Post Office Box 1179 Southold, New York 11971 Re: Application of Eugene M. LaColla Dear Board Members: I am enclosing seven (7) copies of a supplemental map showing the area which is the subject of the use variance application as well as the present zoning of the parcel. Would you please include this in the applicant's file. If you have any questions concerning this map, please do not hesitate to contact me. CRC:jme Enclosures Very truly yours, Charles R. Cudd~// 100 O~D Go~r Ro~ {R~. i~ImH2EAI), ~ 11901 March 25, 1992 Town of Southold Board of Appeals 53095 Main Road, Post office Box 1179 Southold, New York 11971 Application of Eugene M. LaColla Dear Board Members: This is to request an adjournment of the hearing presently scheduled for April 2, 1992, at 9:00 p.m. until your next regularly scheduled meeting. Witnesses to appear on behalf of the applicant are not available on this date. Please advise us when this matter will next appear on your calendar. Thank you for your assistance and courtesy. Very truly yours, Charles R. cudd~y~ CRC:jme APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. James Dinizio, Jr. Robert A. Villa Telephone (516) 765-1809 SCOTT L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 TO WHOM IT MAY CONCERN: Enclosed herewith as confirmation of the time, date and place of the public hearing concerning your recent application is a copy of the Legal Notice, as published in the Long Island Traveler-Watchman, Inc. and Suffolk Times, Inc. Please have someone appear in your behalf at the time specified in the event there are questions brought up during the same and in order to prevent a delay in the processing of your application. Your public hearing will not start before the time allotted in the attached Legal Notice. Additional time will, of course, be available. A drafted or final written copy of your presentation, if lengthy, is always appreciated. Please feel free to call our office prior to the hearing date if you have any questions or wish to update your file. Yours very truly, Enclosure GERAi{D p. GOEHRINGER CHAIRMAN By Linda Kowalski NOTICE OF HEARINGS NOTICE IS HEREBY GIVE~, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the following matters will be held for public hearings before the SOUTHOLD TOWN BOARD OF APPEALS at the Southold Town Hall, New York 11971, on THURSDAY, APRIL 2, times specified below: 53095 Main Road, Southold, 1992 commencing at the 1. 7:32 p.m. Appl. No. 4088 - MARGARET F. WEIDMANN. Special Exception under the Zoning Ordinance, Article IIIA, Section 100-30A.2(B)(1) and Article III, Section 100-30B(14) for permission to establish an "Accessory Apartment Use." Location of Property: 3245 (easterly side) Wells Road, Peconic, Town of Southold, NY; County Tax Map Parcel No. 1000-86-2-7. 2. 7:35 p.m. Appl. No. 4089 - EVELYI~ P. TURCHIANO. Variance to the Zoning Ordinance, Article IIIA, Section 100-30A.4 (100-33) for permission to locate a new accessory garage building in the front yard area. Location~ of Property: (Westerly side) 450 Deep Hole Drive, Mattituck, Town of Southold, Page 2 - Legal NotJ~ Hearings for April 2, 1992 Southold Town Board of Appeals NY; County Tax Map Parcel No. 1000-115-12-5. This parcel is substandard in size and is located in an R-40 Zone District. 3. 7:40 p.m. Appl. No. 4087 - BART AND CHRISTINE RUROEDE. Variance to the Zoning Ordinance, Article XXIV; Section 100-244, for approval of an open deck addition with an insufficient rear yard setback. Location of Property: 450 Maple Lane, Lot No. 81, Map of Cleaves Point, Section 3, Greenport, Town of Southold; County Tax Map Parcel No. 1000-35-5-6. This parcel is substandard in size and is located in an R-40 Zone District. 4. 7:45 p.m. Appl. No. 4085 - ANDREW AND ANN MONACO. Variance to the Zoning Ordinance, Article XXIII, Section 100-239.4 for permission to locate a new dwelling with a setback at less than the required 100 feet from the top of the L.I. Sound bluff. Location of Property: Corner of the northerly side Aquaview Avenue and easterly side of Rocky Point Road, East Marion, Town of Southold; County Tax Map Parcel No. 1000-21-2-1. This parcel is substandard in size and is located in an ~-40 Zone District. 5. 7:50 p.m. Appl. No. 4096 - PAT AND ROSEANNE IAVARONE. Variance to the Zoning Ordinance, Article XXIII, Section 100-239.4B for permission to locate a deck addition with a setback at less ~han 75 feet from the bulkhead along Baldwin's (Mud) Creek. Location of Property: 950 Strohson Road, Page 3 - Legal NotJ Hearings for April 2, 1992 Southold Town Board of Appeals Cutchogue, Town of Southold; County Tax Map Parcel No. 1000-103-10-24. This parcel is substandard and is located in the R-40 Zone District. 6. 7:55 p.m. Appl. No. 4095 - DENNIS DAVIS. Variance to the Zoning Ordinance, Article III, Section 100-33 for permission to located a detached, accessory building in the front yard area. Location of Property: 6010 Soundview Avenue, Hamlet and Town of Southold, NY; County Tax Map Parcel No. 1000-59-8-5.11. 7. 8:00 p.m. Appl. No. 4094 - ANITA MACRAE FEAGLES. Variance to the Zoning Ordinance, Article III, Section 100-33 for permission to construct detached, accessory garage building in the side yard area. Location of Property: South Side of Oceanview Avenue and North Side of Beach Avenue, Fishers Island, Town of Southold; County Tax Map Parcel No. 1000-9-11-2.1. 8. 8:03 p.m. Appl. No. 4097 - JOHN G. AND MARIE ELENA BRIM. Variances to the Zoning Ordinance, Article III, Section 100-33 for permission to locate tennis court with steps and retaining wall in the side yard and partly in the front yard, and having an insufficient setback from the front property line and from the freshwater wetlands, (which will include the removal of an existing garage presently in the side yard). Location of Property: Northerly side of Private Road off East End Avenue, Fishers island, Town of Southold; County Tax Map Parcel No. Hearings for April 2, 1992 Southold Town Board of Appeals 1000.-4-3-3; also referred to as FIDCO Block 18, Lots iA and lB as combined, having a total land area of 3.56+- acres in this R-120 Zone District. 9. 8:10 p.m. Appl. No. 4037 - METRO/808 REALTY CORP. Variance to the Zoning Ordinance, Article IX, Section 100-92 and Article XXIV, Section 100-241A, as disapproved by the Building Inspector, for approval of a permanent rooflike structure (canopy) over gasoline pump island. The principal use, gasoline sales with accessory office and necessary inside storage incidental thereto, is nonconforming in this Hamlet Business (HB) Zone District. Location of Property: Corner of the Northerly Side of Main Road (Route 25) and the Westerly Side of Depot Lane, Cutchogue, Town of Southold; County Tax Map Parcel No. 1000-102-5-26. 10. 9:00 p.m. Appl. No. 4091 - EUGENE M. LACOLLA. Variance to the Zoning Ordinance, Article III, Section 100-31 A & B, requesting permission to change use of a portion of ~the subject premises, from residential to non-residential. Location of Property: North Side of Main Road (State Route 25), Greenport, Town of Southold; County Tax Map Parcel Nos. 1000-56-4-24 & 19. . The Board of Appeals will at said time and place hear any and all persons or representatives desiring to be heard in the above matters. Written comments may also be submitted prior to Page 5 - Legal NotJ Hearings for April 2, 1992 Southold Town Board of Appeals the conclusion of the subject hearing. Each hearing will not start before the times designated above. For more information, please call 765-1809. Dated: March 17, 1992. BY ORDER OF T~E SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN By Linda Kowalski Copies have been forwarded to the following on or about 3/17/92: L.I. Traveler-Watchman, Inc. (fax transmission Times-Review (fax transmission) Individual Files and Board Members Town Clerk Bulletin Board Copies of Legal Notice mailed on 3/18/92 to the following: Mrs. Margaret F. Weidmann 3245 Wells Road P.O. Box 221 Peconic, NY 11958 Mrs. Evelyn P. Turchiano 450 Deep Hole Drive Mattituck, NY 11952 Mr. and Mrs. Bart Ruroede P.O. Box 433 Greenport, NY 11944 Mr. and Mrs. Andrew Monaco 9 Cliff Drive Kings Park, NY 11754 Mr. Peter Podlas, R.A. P.O. Box 285 Remsenburg, NY 11960 Mr. and Mrs. Dennis Davis P.O. Box 226 Peconic, NY 11958 (Ref. Ivarrone) Mr. Cuyler M. Feagles 79 Creetey Road Melmont, MA 02178 Stephen L. Ham III, Esq. (Ref. Brim) Matthews & Ham 45 Hampton Road Southampton, NY 11968 Mr. Frank Nealon (Ref. Metro/808 Realty) Permit Research& Acquisition Co., Inc. 1108 Route 110 Farmingdale, NY 11735 Allen M. Smith, Esq. P.O. Box 1240 737 Roanoke Avenue Riverhead, NY 11901 IRef. Metro/808 Realty) Charles R. Cuddy, Esq. P.O. Box 1547 180 Old Country Road Riverhead, NY 11901 (Ref. LaColla) APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles, Grigonis, ,Ir. Serge Doyen, ,Ir. James Dinizio, Jr. Robert A. Villa Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTt L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 TO WHOM IT MAY CONCEP~N: Enclosed herewith as confirmation of the time, date and place of the public hearing concerning your recent application is a copy of the Legal Notice, as published in the Long Island Traveler-Watchman, Inc. and Suffolk Times, Inc. Please have someone appear in your behalf at the time specified in the event there are questions brought up during the same and in order to prevent a delay in the processing of your application. Your public hearing will not start before the time allotted in the attached Legal Notice. Additional time will, of course, be available. A drafted or final written copy of your presentation, if lengthy, is always appreciated. Please feel free to call our office prior to the hearing date if you have any questions or wish to update your file. Yours very truly, Enclosure GERARD p. GOEHRINGER CHAIRMAN By Linda Kowalski Copies of Legal Notice mailed on 3/18/92 to the following: Mrs. Margaret F. Weidmann 3245 Wells Road P.O. Box 221 Peconic, NY 11958 Mrs. Evelyn P. Turchiano 450 Deep Hole Drive Mattituck, NY 11952 Mr. and Mrs. Bart Ruroede P.O. Box 433 Greenport, NY 11944 Mr. and Mrs. Andrew Monaco 9 Cliff Drive Kings Park, NY 11754 Mr. Peter Podlas, R.A. P.O. Box 285 Remsenburg, NY 11960 (Ref. Ivarrone) Mr. and Mrs. Dennis Davis P.O. Box 226 Peconic, NY 11958 Mr. Cuyler M. Feagles 79 Creeley Road Melmont, MA 02178 Stephen L. Ham III, Esq. (Ref. Brim) Matthews & Ham 45 Hampton Road Southampton, NY 11968 Mr. Frank Nealon (Ref. Metro/808 Realty) Permit Research & Acquisition Co., Inc. 1108 Route 110 Farmingdale, NY 11735 Allen M. Smith, ESg. P.O. Box 1240 737 Roanoke Avenue Riverhead, NY 11901 (Ref. Metro/808 Realty) Charles R. Cuddy, Esq. P.O. Box 1547 180 Old Country Road Riverhead, NY 11901 (Ref. LaColla) JUDITH T. TERRY TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 1197 l Fax (516) 765-1823 Telephone (516) 765-1801 OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD To · From: Dated: Re: Southold Town Zoning Board of Appeals Judith T. Terry, Southold Town Clerk March 5, 1992 Zoning Appeal No. 4091 - Eugene M. LaColla Transmitted herewith is Zoning Appeal No. 4091 application for a variance by Eugene M. LaColla. Also included is: Letter of Transmittal from Charles R. Cuddy, dated February 28, 1992; Notice of Disapproval from the Southold Town Building Department, dated March 5, 1992; Notice to Adjacent Property Owners; ZBA Questionnaire; Short Environmental Assessment Form; and surveys. Judith T. Terry Southold Town Clerk ~80 0L~i~ C~LTNTHY ~OAD (~T]~. February 28, 1992 Zoning Board of Appeals Town of Southold 53095 Main Road Post Office Box 1179 Southold, New York 11971 Re = Property of the Estate of Joseph A. LaColla, Jr. SCTM #1000-56-4-19 and 24 Dear Board Members: We are enclosing the following documents in connection with the variance application for the parcel owned by Eugene LaColla and others and located on the north side of New York State Route 25, just east of Mill Creek= (1) Notice of disapproval from the building inspector; (2) Application; (3) A copy of notice to adjoining property owners; (4) Environmental Assessment Form; (5) ZBA questionnaire; (6) Four prints of survey; (7) Filing fee check in the sum of $300.00. If you require anything further, please contact me. CRC:jme Enclosures Very truly yours, The N.Y.S. Environmental Quality Review Act requires submission of this form, and an environmental review will be made by this board before any action is taken. SHORT ENVIRONMENTAL ASSESSMENT FORM ~NSTRUCTIONS: (a) In order to answer the questions in this short EAF it is assumed that the preparer will use currently available information concerning the project and the likely impacts of the action. It is not expected that additional studies, research or other investigations will be undertaken. (b) If any question has been answered Yes the project may be sig- nificant and completed Environmental Assessment Form is necessary. (c) If all questions have been answered No it is likely that the project is not significant. (d) Environmental Assessment 1. Will project result in a large physical change to the project site or physically'alter more than 10 acres of land? · Yes :X NO 2. Will there be a major change to any unique or unusual land form on the site? Yes ~ NO 3. Will project alter or have a large effect on an existing body of water? Yes X NO 4. Will project have a potentially large impact on groundwater quality? Yes ~ NO 5. Will project significantly effect drainage flow on adjacent sites? Yes X No 6. Will project affect any threatened or endangered plant or animal species? Yes X NO 7. Will project result in a major adverse effect on air quality? Yes .~ .No 8. Will project have a major effect on visual char- acter of the community or scenic views or vistas known to be important to the community? Yes 9. Will project adversely impact any site or struct- ure of historic, pre-historic, or paleontological importance or any site designated as a critical envircamental area by a local agency? Yes ~No 10. Will project have a m~jor effect on existing or future recreational opportunities? Yes ... XNo 11. Will project result in major traffic problems or cause a major effect ~o existing transportation · systems? ___Yes XNO 12. Will project regularly cause objectionable odors, noise, glare, vibration, or electrical disturb- ance as a result of the project's operation? Yes XNo 13. Will project have any impact on public health or safety? Yes ~No 14. Will project affect the existing community by directly causing a growth in permanent popula- tion of more than 5 percent over a one-year Yes period or have a major negative effect on the charact~ of the community or neighborhood? Is there public controversy concerning the Yes XNo 15. project? RepreSenting: ~/Z~- ZHA g/q5 PROJECT I.D. NUMBER . SEQR 617.21 Appendix C State Environmental Quality Review SHORT ENVIRONMENTAL ASSESSMENT FORM For UNLISTED ACTIONS Only PART I--PROJECT INFORMATION (To be cOmDleted by Applicant or Project sponsor) 1. APPLICANT/SPONSOR I2. PROJECT NAME Eugene LaColla I Use Variance Application 3. PROJECT LOCATION: M..~lp..~ Southo i d Cou.~ Suffo 1 k North side of Route 25 between Mill Creek and LIRR-Route 25 overpass. Use variance to permit business use for upland acreage Irlltially 15 acres Ultimately 15 acres Wilt extend business use into existing residential zone Restaurar~t, retail store 10. DOES ACTION INVOLVE A PERMIT APPROVAL, OR FUNDING. NOW OR ULTIMATELY FROM ANY OTHER GOVERNMENTAL AGENCY (FEDERAL Possible Town Trustee and DEC approval 12. AS A RESULT OF PROPOSED ACTION WILL EXISTING PERMIT/APPROVAL REQUIRE MODIFICATION? E]Yes ~]No I CERTIFY THAT THE INFORMATION PROVIDED ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE name: Eugene LaCol la 2/28/92 If the action is in the Coastal Area, and you are a state agency, complete the Coastal Assessment Form before proceeding with this assessment OVER 1 · (Continued on reverse side) QUESTIONNAIRE FOR FILING WITH YOUR Z.B.A. APPLICATION A. Please disclose the names of the owner(s) and any other individuals (and entities) having a financial interest in the subject premises and a description of their interests: (Separate sheet may be attached. ) EuGene kaColla (See separate sheet attached) B. Is the subject premises listed on the real estate market for sale or being shown to prospective buyers? { } Yes { } No. (If Yes, Dleass a~h ~UF of "conditions" of sale.) Offered, but no prospective buyers C. Are there =n~ ~u~osals tm :hange ~ alter land :ontours? { } Yes ~x} No De 1. Are there any areas which contain wetland grasses? yes 2. Are the wetland areas shown on the map submitted with this application? yes 3. Is the property bulkheaded between the wetlands area and the upland building area? no 4. If your property contains wetlands or pond areas, have you contacted the Office of the Town Trustees for its determination of jurisdiction? no E. Is there a depression or sloping elevation near the area of proposed construction at or below five feet above mean sea level? n/a (If not applicable, state "N.A.") F. Are there any patios, concrete barriers, bulkheads or fences which e~=t and are not ~hown on the survey map that you submitting? none If none exist, please state "none." G. Do you have any construction taking place at this time concerning your premises? no If yes, please submit a copy of your building permit and map as approved by the Building Department. If none, please state. H. Do you or any co-owner also own other land close to this parcel? no If yes, please explain where or submit copies of deeds. I. Please list present use or operations conducted at this parcel vacant - adjoinin~ parcels are used commercially and proposed use business use A~-tho~zed Signatur~ and Date 3/87, 10/901k § 97-13 WETLANDS § 97-13 TOWN -- The Town of Southold. TRUSTEES -- The Board of Trustees of the Town of Southold. [Added 6-5-84 by L.L. No. 6-1984] wETLANDS [Amended 8-26-76 by L.L. No. 2-1976; 3-26- 85 by L_L. No. 6-1985]: ~'2D'k' ~' , '? · ~? TIDAL WETLANDS: (1) All lands generally covered or intermittently cov- ered with, or which border on. tidal waters, or lands lying beneath tidal waters, which at mean low tide are covered by tidal waters to a maximum depth of five (5) feet, including but not limited to banks. bogs. salt marsh, swamps, meadows, fiats or other low lying lands subject to tidal action; (2) All banks, bogs, meadows, fiats and tidal marsh subject to such tides and upon which groxvs or may grow Some or any of the following:, salt hay. black grass, saltworts, sea lavender, tall cordgrass, high bush, cattails, groundsel, marshmallow and ]ow ~-~:h cordgrass: (3) All land immediately adjacent ~o a tidal wetland as defined in Subsection A(2) and lying within seven- ty-five (75) feet landward of the most land,yard edge of such a tidal wetland. FRESHWATER WETLANDS: (1) "Freshwater wetlands" as defined in Article 24, Ti- tle 1, § 24-0107. Subdivisions l(a) to l(d) inclusive. of the Environmental Conservation Law of the State of New York; and (2) All land immediately adjacent to a "freshwater wet- land," as defined in Subsection B(1) and lying with- in seventy-five (75) feet landward of the most land- ward edge of a "freshwater wetland." 9705 2. 'z.s. ss LaCOLLA APPLICATION Owners: As distributees of Eugene M. LaColla John LaColla Joseph A. LaColla, Clotilda Oliver Genevieve Richards Dolores Sarno Charlotte Van Cura the Estate of Jr. Joseph A. LaColla HD LIO / BAY "~ R-80 SHELTE 14.12-7 (2J~7)--9c .- I1~ 617.21 SEQR State Environmental Quality Review NEGATIVE DECLARATION Notice of Determination of Non-Significance Project Number ~.991 Date June 30 , 1992 This notice is issued pursuant to Part 617 of the implementing regulations pertaining to Article 8 (State Environmental Quality Review Act) of the Environmental Conservation Law. The q~.~-hn3S m~wn R~rd of Appeals . as lead agency, has determined that the proposed action described below will not have a significant effect on the environment and a Draft Environmental Impact Statement will not'be prepared, Name of Action: Eugene M. LaColla AUp1. No. 4091 SEQR Status: Type [] Unlisted ~ Conditioned Negative Declaration: []Yes Description of Action: Request for a "change of use" from residential to non-residentia use, tP~t area designated or, he sketch map, a portion of which is zoned M-II and the remaining acreage R-80 Residential. No construction is proposed at this time. Future activities will be only as permitted after review and issuance of approvals as deemed necessa/y at that time by the permit agencies (of the Town, State and County), aD~l as further noted herein. Subject' 28+- acre parcel adjoins the following lands: (a) Hollister's Restaurant ~3) Richards marine contracting & storage business (c) Mill Creek Liquors, Inc. (d) The Pottery Place, (e) the Long Island Railroad to the north and east, (f) the Main State Highway to the south. Location: North Side of Route 25, east of Mill Creek (at Arsharcca~que) , near Greenport, Town of Southold, County of Suffolk. County Tax Map Designation 1000-56-4-19 & 24. ., SE(J~ Negative Declaration Page 2 Reas~)ns Supporting This Determination: (See 617.6(g) for requirements of this determination; see 617.6(h) for Conditioned Negative Declaration) An Envirorm~ntal Asses~_nt Form (EAF) has been suhnitted and reviewed indicating that no significant adverse environmenta] effects will occur. No building construction or site changes are proposed at this stage of the project and the application pending before the Board of Appeals in this "use variance" application is strictly for a determination of a modification of use in this M-II/R-80 Mixed Zone District classification. The land area which has been designated for consideration in this proposed change or modification of use is · upland area surrounding the existing adjacent c~'~a~rcial buildings and has been designated at 100 feet to mitigate any possible affects to wetland grasses or drainage area. The square footage of land to be affected by use or building areas in this modification request is less than 60,000 sq. ft. The r~4ning 26 acres will r~ain as open, SCenic easement areas. In the event a r0odification of USe is granted, all future land activity and proposed construction (build/ng, weli systems, parking, leeching basins and other site plan considerations) will be subject to a fully detailed site plan and reviews by the Southold Town Planning Board, who shall also consider any n_ew developments under the SEQRA procedures pending at the time of the site plan application. This project will be re~red to conform to all applicable laws, rules and regulations pertaining to the use of this property, as well as obtaining approvals frc~ the: (a) Planning Board, (b) Town Trustees, (c) County Health Department, (d) NYS Depart- ment of Transportation concernS_ng curb cuts, if appropriate. If Conditioned Negative Declaration, provide on attachment the specific mitigation measures imposed. For Further information: Contact Person: Gerard p. Goehringer, Cb. airma~ Southold Town Hall Address: 53095 Main Road, Box 1179 Southold, NY 11971-1179 Telephone Number: (516) 765T!809 For Type I Actions and Conditioned Negative Declarations, a Copy of this Notice Sent to: Commi~s!oner, Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233-0001 _Appro6~'iate Re ional Office of th~ D.e_partment of Environmental Conservation Office of the Chief Executive Officer of the political subdivision in which the action will be principally ___!ocated. Applicant(if any) c/o Charles'R. Cuddy, Esq., BOx 1547, Riverhead, NY 11901-1547 P :,./ Other involved agencies (if any) ; ostedcon Town Clerk Bulletin Board ; town files R-80 HD LIO RR B4 Y ~ R--80 \ / / / / SHELTE % F'- !r Southold Town Board of Appeals MAIN ROAD- STATE ROAD 25 SOUTHOLD, L.I.. N.Y. 11cj'71 ACTION OF THE ZONING BOARD OF APPEALS Appeal No. 3352 Application Dated wu: Mrs. Sene¥ieve Richards Main Road 5outho]d, NY ]197] TELEPHONE (516) 765-1809 April 9, 1985 (Public Hearing June 27, 1985) [Appellant(s)] At a Meeting of the Zoning Board of Appeals held on July ]8, ]98_~5, the above appeal was considered, and the action indicated below was taken on your [ ] Request for Variance Due to Lack of Access to Property New York Town Law, Section 280-a [ ] Request for Special Exception under the Zoning Ordinance Article , Section EX] Request for Variance to the Zoning Ordinance Article VI , Section ]00-60 [ ] Request for Application of GENEVIEVE RICHARDS, 64155 Main Road, Greenport, NY, for a Variance to the Zoning Ordinance, Article VI, Section 100-60 for permission to use proposed building in this "B-Light" Business Zoning District for heavy-equipment storage. Location of Property: 64155 Main Road, Greenport, NY; County Tax Map Parcel No. 1000-56-04-20. WHEREAS, a public hearing was held and concluded on June 27, 1985, in the Matter of the Application of GENEVIEVE RICHARDS; and WHEREAS, the board-members have considered all testimony and documentation entered into the record in this matter, and it is noted that no opposition has beenreceived; and WHEREAS, the board members are familiar with the property, its present use and the area in question; and WHEREAS, the board made the following findings of fact: 1. By this application, applicant seeks permission to construct a 36' by 70' storage building for heavy-equipment storage in this "B-Light" Business Zoning District. 2. The premises in question is located on the north side of the Main (State) Road, Greenport, NY, and is known and identified on the Suffolk County Tax Maps as District lO00, Section 56, Block 04, part of Lot 20; and Lot #2 on a subdivision map of the Southold Town Planni-ng Board approved June 22, 1981. 3. The parcel is question contains a total area of 31,181 sq. ft. (to tie line}, with frontage along the Main Road 6f 258.84 feet and is presently improved with a single garage-storage building which is shown on survey dated January 31, 1985, to be set back 8 feet from the westerly property line, 23 feet from the northerly property line, and 29 feet from the easterly property line located along a private 25' right-of-way. 4. Article VI, Section 100-60 does not list "heavy-equipment storage" as a permitted use in the "B-Light" Business Zoning District, although garage structures for storage of materials (CONTINUED ON PAGE TWO~ DATED: August l, 1985. Form ZB4 (rev. 12/81) CHAIRMAN, SOUTHOLD TOWN OF APPEALS ZONING BOARD P~ge 2 - Appeal No. 3352 Matter of GENEVIEVE RICHARDS Decision Rendered July 18, 1985 and parking of vehicles has been permitted accessory with and customarily incidental to any permitted use and not involving a separate business. 5. For the record, it is noted that simultaneously herewith, an application has been made and conditionally approved under Application No. 3353 for a Special Exception. In considering this application, the board agrees that the use of the building as proposed for inside heavy-equipment storage: (1) will not substantially chan~ the character of this business district; (2) will not be Jdverse to adjoining properties; (3) will not cause a substantial effect of increased population density which may be produced on available governmental facilities; (4) in view of the manner in which the difficulty arose and in consideration of all of the above factors, the interests of justice will be served by allowing the variance, as noted below. Accordingly, on motion by Mr. Grigonis, seconded by Mr. Goehringer, it was RESOLVED, that the relief requested under Appeal No. 3352 in the Matter of the Application of GENEVIEVE RICHARDS for permission to use proposed 36' by 70' building fo-~ide storage of heavy equipment, BE AND HEREBY IS APPROVED SUBJECT TO THE FOLLOWING CONDITIONS: 1. That the proposed building be no closer than eight feet to the closest west property line (rather than five feet); side;2. There be no placement of garage doors on the highway 3. There be no traffic or neighbors 4. There be no the frontyard area; obtrusive lighting which is adverse to in the area; storage of any equipment or materials in 5. The building not to exceed 20' in height; 6. The building must comply with Ch. 46, Floodplain merit Law, if applicable; Manage- 7. There shall be fencing of the rearyard area with 6' high stockade fence (not to exceed 6'6" in height); 8. Existing building must remain accessory to the proposed new building, and shall not be used for living or habitable quarters. 9. In the event the right of the applicant to use the existing right-of-way of the Estate of Joseph A. LaColla (along the easterly property line) is terminated, this use variance shall become null and void, unless an alternative access to the rear of the buildings is arranged by the abutting property owners, and approved by the Town Board of Appeals. Vote of the Board: Ayes: Messrs. Goehringer, Douglass and Sawicki. This resolution was adopted of all the members. Grigonis, Doyen, by unanimous vote lk August l, 1985~ ...... .-. ........................................ ~ ---_: ~: .................. ~15a~9 SO~TdOLO NY 11971 TOWN OF SOUTHOLD Suffolk County, New York Phone 516-765-1801 Southoid, New York 11971 oF ~ ~. Cash [] Check 42783: Date ~J~)~) d~%~_J ~ 19 __ Dollars $. ,~7~D · Judith T. Terr~, Town Clerk COUNTY O1" SUFI"~ S'I'A'I'IE OF NL"W YORK ss: NOTICE OF HEARINGS NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the following matters will be held for public hearings before the SOUTHOLD TOWN BOARD OF APPEALS at the Southold Town Hail, 5309.5 Main Road, Southold, New York 11971, on THURSDAY, MAY 7, 1992 commencing at the times specified below: 1.7:34 p.m. Appl. No. 4102- ROBERT AND ELEONORE CAI-IILL. This is an Appeal of the April 22, 1992 Notice of Dis- approval by the Building Inspec- tor for a Variance to the Zoning,. Ordinance, Article III-A, Se~:- tion 100-30A.3 for permission to construct deck addition with an insufficient front yard setback from the easterly property line (along Cedar Lane, a private road). Location of Property: 515 East Gillette Drive, East Marion; County Tax Map Dis- trier 1000, Section 38, Block 4, Lot 12; also referred to as Lot 69 on the "Map of Marion Manor" filed with the Suffolk County Clerk as Map No. 2038. Fbe subject premises is noncon- forming as to lot area in this R-40 Zone District. 2. 7:37 p.m. AppL No. 4098-- TONY AND MARIA KOS- TOULAS. This is an Appeal for,, a Variance to the Zoning Ordi- nance, Article XXIII, Section 100-239.4 for approval of deck extension (aT or near'ground level) and fence with an insuffi- :tent setback from the L.I. ~ound bluff line. Location of Property: 1035 Acluaview Ave- aue, East Marion, NY; County Pax Map Parcel No. 1000-21-2- 13. This property is noncon- forming as to total lot area in :his R-40 Zone District. 3. 7:40 p.m. Appl. No. 4103- WARREN AND ELLEN HUFE (FUTURE SCREW MACHINE PRODUCTS, [NC.). This is an Appeal for a Variance to the Zoning Ordi- nance, Article VIII, Section/ 100-82 (and Article XXIV, Sec- tion 100-242A) for permission to construct addition which will in- crease the degree of nonconfor- mance in the northerly side yard setback. The setback from the northerly property line is less than the required 20 feet. Loca- tion of Property: 41155 C.R. 48 (and the westerly side of Kenny's Road), Southold, NY; County Tax Map Parcel No. 1000-59-7- 33. This property is noncon- forming as to total lot area in this Limited-Business (LB) Zone District. 4. 7:45 p.m. Appl. No, 4100- THOMAS J. McCARTHY (Contract Vendee) (Owners: Frank Majeski and Others)t. : This is an Appeal for a Variance to the Zoning Ordinance, Arti- cle IliA, Section 100-30A.3 for approval of insufficient lot area, w dth and depth of parcels pro- posed in this four-lot minor sub- division, each with a preexisting dwelling. Location of Property: 1270 Fourth Street and 305 King Street, New Suffolk, NY; Coun- ty Tax Map Parcel No. 1000-117- 7-8. This property is zoned R-40. 5. 7:55 p.m. Appl. No. 4037-- METRO/808 REALTY CORP. (Continued from the April 2, 1992 hearing). Location of Pro- perty: Corner of the Northerly Side of Main Road (Route 25) and the Westerly Side of Depot Lane, Cutchogue, Town o~ Southold; County Tax Map Parr cci No. 1000-102-5-26. 6. 8:05 p.m. Anol. No. 4080--- GEORGE AND SUE TSA- VARIS. This is an Appeal for a Variance to the Zoning Ordi- nance, Article XXIII, Section 100-239.4 for approval of loca- tion of accessory satellite (an- tenna) dish structure with a set- back at approximately 37 feet from the bluff line. The require- ment for all structure under Sec- tion 100-239.4 is 100 feet from the Long Island Sound bluff. Location of Property: 2170 The Strand Way, East Marion, NY; Pebble Beach Farms Filed Map No. 6266, LOt 111; County Ta~ Palricia Wood,' being duly sworn, says that she is tile Editor, of THE LONG ISLAND TRAVELER-WA'I'CNMAN, a public newspaper printed at Southold, in Suffolk County', ;incI Ihat Ihe notice of which the annexed is a printecl copy, II,IS I)CL'F~ pttlll S le(I ill S;iJ(I Long lslan¢l 'J'r;lvolul'-W;llcJilll;in ()I1CR L%~Ch week [or. ...................... Su. Ccessivcly. commencing on April 19 92 Nolary Public BARBARA A. SCHNEIDER NOTARY PUBLIC, Sl?te 0f New York No. 4806846 Qualilie(I in Sull0lk Cot)nty/ Comrnission [xpires y3//~.~. Map Parcel NO. IO00-Do-2-$3., - - ........ said time and place hear any and 7. 8:15 p.m. Appl. No. 4091" EUGENE M. LACOLLA. Vari- ance to the Zoning Ordinance, Article Ill, Sectiofi 100-31 A & B, requesting permission to change use of a portion of the subject premises, from residen- tial to non-residentiaL Location of Property: North Side of Main Road (State Route 25), at Arsha- momoque near Greenport, (abutting properties of Hollis- ter's Restaurant, Mill Creek 14- quors, The Pottery Place, eta); Couqty Tax Map Parcel Nos. 1000-56-4-24 & 19. The Board of Anneals will at all persons or representatives de- siring to be heard in the above,~ matters. Written comments may also be submitted prior to the conclusion of the subject hear- ing. Each hearing will not start before the times designated above. For more information, please call 765-1809. Dated: April 24, 1992. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN By Linda Kowalski IX, 4/30/92 (8) NOT[CE IS HER~¥ GIVEN, pummnt to Sectinn 267 c~ Town Law and the Code of the Town of Southold, the following ma~ters ~ be held for public hearings before tbe SOUTHOLD TOWN BOARD OF APPEALS at the Southold Town Hell. 53095 Meln Road. Somhold, New York 11971, on THURSDAY, MAY 7. 1992 commencing at the times specified below: 1.7:34 p.m. AppL No. 4102 -- ROBERT AND ELEONORE CAHILL. This is an Appeal of the April 22, 1992 N~xice of Disapproval by the Building Inspec~r for a Vari- g-A, Section 100.30A.3 for petrols - non to construct deck addition wlt~ an insufficient front yard setbec~ from the easterly prOl~rty line (along Cedar Lane, a private read). Location of Property: 515 East Gillette Drive, East Marion; County Tax Map Dis- trict 1000. Sucfie~ 38, Block 4. Lot 12; also refenod to as Lot 69 on the "Map of Marion ~anor" fi]ed with the Suffolk County Clerk as Map NO. 2038, The subject premises is non- ce~xforming as to lot area in riffs R.40 Zone District. 2. 7:37 p.m. AppI. No. 4098 -- TONY AND MARIA KOS- TOULAS. This is an Appeal for n Variance to the Zoning Ordinance. Article ~ Section 100-239.4 for appeoval of deck extension (at or near g~xnd level) and fence with an in- sufficient setback from the L.~ Sound bluff llne. Location of Prop- erty: I0~5 Aquavlew Avenue, East ~ari~, NY; County Tax Map Parcel No. 1000-21-2-13. This property is nonconforming as to total lot az~a in this R-40 Zone District. 3, 7:40 p.m. AppL No. 410~ -- WARREN AND ELLEN HUFE (FUTURE SCREW MACHINE PRODUCTS. INC.). This is an Ap- Peal f°r a Variance to the Z~ming Or. dinance, Aninle VIII, Secti~m 100-$2 (and Article XXIV, Section 100. 242A) for permission to Construct addition which ~ increase the de- gree of nonconformance in the northerly side yard set.ck. The set - ~dt from the nefthe~ly p~pe,~ line ts less than the ~uirod 2^ - "~ ~an~dOn of Property: 41155 C.R. 48. ~ the westedy side of Kenny'( Road), Southold. Ny; COunty Tax Map Parcel No. 1000-59-7-33. This ,property i.s nonconforming as to total ~t~a~e~a m .this Limited-Business 4. 7:45 p.m. AppI. No. 4100 ~ THOMAS I. McCARTHY (Con.ct Vendee) {Owners: Frank Mnjeskl and Otheta }. Thls ~ an Appeal fora Variance to the Zoning Ordinance, Article 1HA, Secti~ 100.~0A.3 for width and depth of parcels proposed in t~is four-lot minor subdivision, each wi~ a pt~x~sfins dwelling. Lo~ cation of Property: 1270 Fourth Suffolk, Ny; County Tax Map Parcel No. 1000-117.7.8. This property is// z~ned R-40. 5.7:55 p,m. Appl. No. 40~7 -- METR~8 REALTY CORP. (Contin~rom the April 2, 1992 bearing).~l~caticn of P~perty: Cot. ncr of the Northerly Side of Main Read (Roum 25) and the Westerly Side of Depot Lane, Cutchogue, Town of Southold; County Tax Map parcel No. 1000-102-5-26. 6. 8:05 p.m. Appl. No. 4080 -- GEORGE AND SUE TSAVARIS. This is an Appead for n Variance to the Zoning Ordinance, Article XXHI, Section 100-239.4 for approval of 1o - cation c~ accessov] satellite (antenn&) dish structure with a setback at ap- pro~dmately 37 feet from the bluff llne, The mqinmment for all structure under Section 100-239,4 is 100 feeJ~- from the Long Island Sound binff, Location of Property: 2170 The Strand Way, East Marion, Ny; Pcb- ble Beach Farms Filed Map No, 6266, Lot 111; County Tax map Par - cci No. 1000-30-2-53, 7. 8:15 p.m. Appl. No. 4091 -- EUGENE M. LACOLLA. Variance to the Zoning Ordinance, Article Section 100-31 A & B, requesting pennlssion to change use ufa portion of the subject pmnises, from msiden - rial to non-gsidenrial. Locatilm of Property: North Side of Main Road (State Route 25), at Arshamomo<lUe near Greenpo~ (abutting properties of Holllster's Restanrant~ Mill Creek Liquors, The Pottery Place, etc.); County T~ Map Parcel Nos, 1000. 56-4-24 & 19~ Th~ Board'of Appeads will at said time and place hear any and all per- sore or representatives designs to be heard in the above matters. Written comments may also he submitted prior to the conclusion of rh~ s~Lje, cl hearing, Each hearing ~ n~o~ start before the times designated above. For more information, please can 765-1809. Dated: April 24, 1992. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD p, GOEHRI~GER CHA~RMA~ 73~71 -ITA30 By Linda Kowalsk~ STATE OF NE~YORK) ] SS: COUNTY OF SUFFOLK] ~- C(~7}J[~-'a'! ~ of Mattltuck, In said County, being duly sworn, says that be/she is Principal Clerk of THE SUFFOLK TIMES, a Weekly Newspaper, published at Mattituek, in the Town of Southuld, County of Suffolk and State of New York, and that the Notice of which the annexed Is a printed copy, has been ~egulnr- ly published in said Newspaper once each week for ! weeks su~ecessively, commencing on the~'~day-- of/~ "l 19~ Principal Clerk Sworn to before me this [ ~ ~- No. 45285~0 detached, accessory Imildlng in the , pursuant to Sae~m 267 of the Town Law and the Code of the Town of I Southold, thc following matters ~ be heed f~ public he~ings be~om the $OUTHOLD TOWN BOARD OF APPEALS at the Southold Town Hall 53095 Main Road, Southoid. New yo~k 11971, ~m THURSDAY, APRIL 2, 1992 c~mmeucing at the ~dmes specified below: I. ?:32 p.m. Appl. No. 4088 -- MARGARET F. WEIDMANN, 30A.2~BXI) and Article ~I, Sec~on 100-30B(14) for Pann~slon to esteb - lish an 'Acc~soty Apamnem Use~" side) Wells Rued, Pccomc, Town of Somhold, NY; County Tax Mop Per- cel No. 1000-86-2-7. 2. 7:35 p.m, Appl. No, 40~9 -- EVELYN P. TURCHIANO, Vari- IIIA, Sectio~ 100-30A.4 000-33) for permission to locste a new accesso~ garage Imflddn& in the fwnt yard axca- Location e( Property: 450 O~/estedy front yard mca. Locafi~m of P~y: 6010 Soundview Avenue, Hamlet and Town of Southold, NY; County T~ Map Panel No. 1000-59-8-5.1L 7. 8:00 p.m. Ap~L No. 4094 -- AN1TA MACRAE P'EAGLES. Vail- ~I, Se~ion 100-33 for permisslcn to JOHN G. AND MARIE ELEN~' BRIM. Variances to th~ Zonin~ O~- side yard and partly ia the fro~ ya~, side) Deep Hole Drive, Mattituck, I of PrivsteR<mdoffEastEndAvenue, Town of Southold, NY; County Tex Fishers Island, Town of Southold; Map Pe~cel No, 1000-115-12-5. Tbls County T~x Map Parcee No. 1000-4- parcel is substandard in ~z~ aud is 3-3; also tcfer~d to es FIDCO Bin~ located in an R-40 Zone D~mc~ 18, Lots lA and lB as cembined, 3.7:40 p.m. Appl. No. 4087. -- BART AND CHRISTINE . havin& a ~ lend ama of 3.56~ i~ acr~ in this R-120 Z~me Distr'. RUROEDE. Variance to ~e ~ ~ 9. 8:10 p.m. A~E No. ~7 ~ O~, A~cle ~V, Se~ ~ ~O1~ ~L~ ~. V~- 100 ~4, for a~wval of ~ ~ · · deck add~ w~ ~ ms~na~t ~. Se~ 1~-92 ~d A~ ~ ya~ set. ck. ~6~ of ~- ~ ~. ~ 1~-241A, ~ ~-= eny: 450 Mapl~ ~e. ~ No. 81, Map of ~eavel ~t, S~ 3, ~ ~ ~ B~g ~, f~ ] Greenpo~, To~ of Sou~old; a~ ~ a ~ent wo~e I Cowry T~ ~ Pa~ No. 1~- 35-54. ~ ~ ~ m~ h si~ ~d is l~t~ ~ ~ R~ ~e Disuicc 4. 7:45 p.m. AppL No. 4085 -- ANDREW AND ANN MONACO. Variance to the Zoning Ordinance, Article XXIH, Sec6ca 100-239A for parmission to locate a new dwcll~ qu~.d 100 feet from the top of thc L~. Sound bluff. Location of Prop- Ordinance, Article XXHI, Section 100-~39,4B for permission to locate Baldwin's (Mud) Creek. Location of structure (canopy) over gasoline pump idand. The principal use, gasoline sales with accesso~ office Hamlet Business (HB) Zone Dimict. Looalion of Proparty: Comer of the 2~) and the Westerly Side of Depot County Tax Map Parcel No. 1000- STATE OF NEW TO. ~, }SS: gOU#TY OF SUFFOLK} 0~'~ O,. ~(YY'/, al ~ of Mattituc~ In said ~oun~, [~l~ du~ s~orn, sa~s that ho/she ~s Principal Clerk of THE SUFFOLK TIMES, a Weekly Newspaper, published at Mattituck, in the Town of Southold, County of Suffolk and State of New York, and that the Notice of which the annexed is a printed copy, has been regularly published In said Newspaper once each week for [ weeks sqc~e~essivel~, commen_ei_ng on the ]-~ day of Principal Clerk Swom to before me this ~' ~' NOTARY PUBLIC, Slate of New York ~ ~ ~mi~ion Expires Nov, 30, of~e m~, ~ m~- ~ ~ n~-~s~ff~. ~ff~ of P~ny: No~ Si~ of ~ R~d S~d; ~ty T~ Map P~ . ~e B~ ~ A~s ~ at h~d ~ ~e a~ve ma~. . c~m~ may ~so ~ sub~ 7~-1~. BY O~ OF ~ SO~OL~ GE~ p. ~G~ 7~-1~19 HY ~ ~w~ NOTICE OF HEARINGS NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the following matters will 'be held for public hearings before the SOUTHOLD TOWN BOARD OF APPEALS at the Southold Town Hall, 53095 Main Road, Southold, New York 11971, on THURSDAY, APRIL 2, 1992 commencing at the times specified below: 1.7:32 p.m. AppL No. 4088-- MARGAPeET F. WEIDMANN. Special exception under the Zoning Ordinance, Article IliA, Section 100-30A.2(B)(1) and Article II1, Section 100-30B(14~ for permission to establish an "Accessory Apartment Use:' Location of Property: 3245 (easterly side) Wells Road, Peconic, Town of Southold, NY: County ~x Map Parcel No. 1000-86-2-7. 2. 7:35 p.m. AppL No. 4089-- EVELYN P. TURCHIANO. Variance to the Zoning Ordi- nance, Article IliA, Section 100-30A.4 (100-33) for permis- sion to locate a new accessory garage building in the front yard area. Location of Property: 450 (westerly side) Deep Hole Drive, Mattituck, Town of Southold, NY; County ~ax Map Parcel No. 1000-115-12-5. This parcel is sub- standard in size and is locate~~ in an R-40 Zone District. 3. 7:40 p.m. AppL No. 4087 --BART AND CHRISFINE RUROEDE. Variance to tl~e Zoning Ordinance, Article XXIV, Section 100-244, for ap- provai of an open deck addition with an insufficient rear yard setback. Location of Property: 450 Maple Lane, Lot No. 81, Map of Cleaves Point, Section 3, Greenport, Town of Southold; County Tax Map Par- eel No. 1000-35-5-6. This parcel is substandard in size and is located in an R-40 Zone District. 4. 7:45 p.m. Appl. No. 4085-- ANDREW AND ANN MONACO. Variance to the v Zoning Ordinance, Article? XXIII, Section 100-239.4 for permission to locate a new dwelling with a setback at less than the required 100 feet from the top of the L.I. Sound bluff. Location of Property:Corner of the northerly side Aquaview Avenue and easterly side of Rocky Point Road, East Marion, Town of Southold; County 1hx Map Parcel No. 1000-21-2-1. This parcel is sub- standard in size and is located in an R-40 Zon strict. 5. 7:50 p.m. Api~J. No. 4096- PAT AND ROSEANNE IAVA- RONE. Variance to the Zoning Ordinance, Article XXIlI, Sec- tion 100-239.4B for permission to locate a deck addition with setback at less than 75 feet from the bulkhead along Baldwin's (Mud) Creek. Location of Pro- perty: 950 Strohson Road, Cut- chogue, Town of Southold; County Tax Map Parcel No. 1000- 03-10-24. This parcel is substandard and is local~:i in R-40 Zone District. 6. 7:55 p.m. AppL No. 4095-- DENNIS DAVIS. Variance to the Zoning Ordinance, Article II1, Section 100-33 for permis- sion to locate a detached, acces- sory building in the front yard area. Location of Property: 6010 Soundview Avenue, Hamlet and Town of Southold, NY; County Tax Map Parcel No. 1000-59- 8.5.11. 7. 8:00 p.m. Appl. No. 4094-- ANITA MACRAE FEAGLES. Variance to the Zoning Ordi- nance, Article II1, Section 100-33 for permission to con- struct detached, accessory garage building in the side ~,,~rd area. Location of Property: South side of Oceanview Avenue and North Side of Beach Ave- hue, Fishers Island, Town of Soutbold; County ~ax Map Par- cel No. 1000-9-11-2.1. 8.8.'03 p.m. Appl. No. 4097-- JOHN G. AND MARIE ELENA BRIM. Variances to the Zoning Ordinance, Article Ill, Section 100-33 for permission to locate tennis court with steps and retaining wall in the sid9 yard and partly in the front yard, and having an insufficient setback from the front proper- ty line and from the freshwater wetlands, (which will include the removal of an existing garage presently in the side yard). Loca- tion of Property: Northerly side of Private Road off East End Avenue, Fishers Island, Town of Southold; County Tax Map Par- cel No. 1000-4-3-3; also referred to as FIDCO Block 18, Lots IA and lB as combined, having a total land area of 3.56 + acres in this R-120 Zone District. 9. 8:10 p.m. Appl. No. 4037-- METRO/808 REALTY CORP. Variance to the Zoning Ordi- nance, Article IX, Sectior3/N 100-92 and Article XX1V, Sec- tion 100-241A, as disapproved by the Building Inspector, for approval of a permanent rooflike structure (canopy) over gasoline pump island. The prin- cipal use, gasoline sales with ac- cessory office and necessary in- side storage incidental thereto, is COUNTY OV SUFgOLK S'FA'I'F. O1: NEW YORK Patricia Woocl,' being duly sworn, says that she is the Editor, of THE LONG ISLAND TRAVELER-WATCHMAN, a public newspaper printed aL Southolcl, in Suffolk County; ;md ti~at the notice of which thc annexed is a printed copy, h,~s l~ccn .pu~lishcd ir~ said Long Island 'l'raveler-W;itchmarl once each week for / weeks successively, commencing o~ the / ~ ~ March 1 9~2c~ \ March 1992 Nolary ?ublic BARBARA A. SCHNEIDER NOTARY PUBLIC, St'zte of New York No. 4806846 ,qualiliod in Suffolk Cot)nty~ Commission Expires ~/3,,/'I~.~ nonconforming in this Hamlet Business (HB) Zone District. Location of Property: Comer of the northerly side of Main Road (Route 25) and the westerly side of Depot Lane, Cutchogue, Town of Southold; County Tax Map Parcel No. 1000-102-5-26. 10. 9:00 p.m. Appl. No. 4091 --EUGENE M. LACOLLA. Variance to the Zoning Ordi~/ nance, Article 1II, Section 100-31 A & B, requesting per- mission to change use of a por- tion of the subject premises, from residential to non-residen- tial. Location of Property: north side of Main Road (State Route 25), Greenport, Town of Southold; County Tax Map Par- cel Nos. 1000-56-4-24 & 19. The Board of Appeals will at said time and place hear any and all persons or representatives de- siring to be heard in the above matters. Written comments may also be submitted prior to the conclusion of the subject hear- ing. Each hearing will not start before the times designated YJ above. For more informarion~,~ please call 765-1809. Dated: March 17, 1992. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN By Linda Kowalski IX, 3/19/92 xX~\ BO)~.RD OF APPEALS TOWN OF SOUTHOLD NOTICE OF HEARINGS NOT/CE IS HEREBY GIV- EN, pursuant to Section 267 of The Town Law and the Code of the Town of Southold, the following matters will be held for public hearings before the SOUTHOLD TOWN BOARD OF APPEALS at the Southold Town Hall, 53095 Main Road, Southold, New York 11971, on TUESDAY, JUNE 30, 1992, commencing at the times specified below: 7:32 p.m. Appl. No. 4100- Reconvened from May 7, 1992. Matter of the Application of THOMAS J. McCARTHY. Variance to the Zoning Or- dinance, Article IliA, Section 100-30A.3 for approval of insuf- ficient lot area, width and depth of parcels proposed in this four- lot minor subdivision, each vAth a preexisting dwelling. Location of Property: 1270 Fourth Street and 305 King Street, New Suf- folk, NY; County Tax Map Parcel No. 1000-117-7-8. This property is zoned R-40. 7:55 p.m. Ap~!:__.No 4091-, Variance to the Zoning Or- dinance, Article III, Section 100-31 A & B, requesting per- mission to change use of a por- . lion of the subject premises, from residential to non- residentiall Location of Proper- ty: North side of Main Road (State Route 25), at Ar- shamomoque near G~enport, (abutting properties of Hollister's Restaurant, Mill Creek Liquors, The Pottery Place, etc.); County Tax Map Parcel Nos. 1000-56-4-24 & 19 (combined as one lot in com:~ mon ownership). The Board of Appeals will at the above-noted time and place hear any and all persons or representatives desiring to be heard in the above matters. Written comments may also be submitted prior to the conclu- sion of the subject hearing. Each hearing will not start before the times designated above. For more information, please call 765-1809. Dated: June 15, 1992. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN By: Linda Kowalski 1X-6/18/92(51) COUNTY OF SUFFOLK ss: STATE OF NEW YORK Patricia Wood, being duly sworn, says that she is the Editor, of THE LONG ISLAND TRAVELER-WATCHMAN, a public newspapm printed at Soutbold, in Suffolk County; and that the notice of which the annexed is a printed copy, has been published in said [_ong Island Traveler-Watchman once each week for / weeks successively, comnqencing on the ......... /"? (lily of. ....... :-J(:> ....... 19 fi'.2.. 5/-: : :: :. : : . .... Sworn to befole me this ........... /.'~...-- .... day of Nolary Public BARBARA A. SCHNEIDER NOIARY PUBLIC, State of New York No, 4806846 Qualified in Sulfolk Cou.aly Commission Expires ~°/9i/0~. BOARD OF APPEALS, TOWN OF $OUTHOLD In the Matter or the Petition of : Euqene M. LaColla : to the Board of Appeals of the Town of Southold : TO: NOTICE TO ADJACENT PROPERTY OWNER YOU ARE HEREBY GIVEN NOTICE: 1. T~he intention of the undersigned ~o petition the Board of Appeals of ~he Tow~ of $ourhold to reques~(5peciai Exception) (Special Permit) (Other) [circle choice] 1. 2. That the property which is the subject of the Petition is located adiacent to your property and is des- cribed as follows: twenty-eiqht acre oarcel located on north _~d~ ~f Route 25 immediately east of Mill Creek and south of Long Island Rail Road. That the property which is the subiect of such Petition is located in the following zoningldistrict: R-80 and MII 4 That h~ such Petition, the undersigned willrequestthefollowingrelief: the upland area be gra~ted a variance to permit business u$~ s~milar to those exi~ttnq on ~diointn~ properties. $. That the provisions of the $outhoid Town Zoning Code applicable to the relief sought by the under- signed are Article Section [ ] Section 280-A, New York Town Law for approva] of access over r~ght(s)-of-way~ 6. That within five days from the date hereof, a written Petition requesting the relief specified above will be filed in the Southold Town Clerk's Office at Main Road $outhold, New York and you ma), then and there examine the same during regular office hours. (516) 7~5-1809. [Copy of sketch purposes.] 7. That before the relief sought may be granted, a public hearing must be held on the matter by the Board of Appeals; that a notice of such hearing must be published at least five days prior to the date of such hearing in the Suffolk Times and in the Long Island Traveler-Mattituck Watchman, newspapers published in the Town of Southold and designated for the publication of such notices; that you or your representative have the right to appear and be heard at such hearing. Petitioner Owners'Names: Eugene M. LaCoila Post Office Address C/O Char~'s R. ~uddy, Esq. 180 Old Country Road, Post Office Box 1547 Riverhead, New York Tel. No. ( 516 ) 369-8200 ~ t~ .ol~ ~L~t C~ ~ed~nevnH ~I~p(3 Or plan sh0w~ng proposal :o be attached for convenience NAM~ Robert L. Mitrani Mr. & Mrs. Larry Clotilda Oliver PROOF OF MAll. IN(; OF NOTICE ATTACH CERTIFIED MAIL RECEIPTS. ADDRESS Main Road RD #2 Southold, NY 11971 Tuminello 955 Ships Drive Southold, NY 11971 Mrs. Genevieve Richards Main Road P.O. Box 421 Mattituck, NY 1195 Main Road, RFD Southold, NY 1197! 657 577 199 Certified Mail Receipt Insurance Coverage Provided Do not use for International Mail (See Reverse) Sent to Clotilda Oliver Street & No P.0. Box 421 RO., State & ZIP Code Mattituck, NY 11952 Certified Fee STATE OF NEW YORK ) COUNTY OF SUFFOLK) Joanne McGil] Ehr~am ,residingat Peconi¢ Bay Boulevard. Aqueboque~ New York 11931 , being duly sworn, deposes and says that on the q.l-,h day of M a r c h ,19 9 2 . deponent mailed a true copy of the Notice set forth on the re- verse side hereof, directed to each of the above-named persons at the addresses set opposite their respective names; that the addresses set opposite the names of said persons are the addresses of said persons as shown on the current assessment roll of the Town of Southold; that said Notices were mailed at the United States Post Of- rice at Ri verhead, New York ;that said Notices were mailed to each of said persons by (certified) (Ne?f~et~ mail. oanne McGill El~rsam Sworn to before me this day of March ,19 92 Notary Public CLARK (This side does not have to be complet'ed on form transmitted to adjoining property.ownerS.) Another" "Tavern' Turn" "Tragedy: - Ruth ~ernlck ~ ~ ~ ' ~'~ .... : GREENPORT--Tavern Turn claimed another life this week, the second in less 'ban one year. This time, Robert Hasser, 68, of Laurel was killed in a head-on collision on the same sharp curve on Route 25 near Mill Creek where 20-year-old col- lege student Phuc Ho lost his life last ~une. According to police, Mr. Husser had .~ust crossed the Mill Creek bridge and was driving east on the Main Road in a 1985 Chevrolet ST-10 just after I p.m. on Good Friday when a westbound 1968 Ford pic~~up truck driven by Scott Gonzalez, 19, of Greenport crossed over the center line and hit the Husser vehi- cle. Alcohol involvement and/or a rain- '...there've been about a zillion accidents there.': crash, police suit; but both vehicles were impounded for, a safety check as standard procedure. No charges against Ivlr. Gonzalez ate pending at this time, according to police Lieutenant Ioseph Conway. Mi'. 14usser was treated at the scene by members of Greanpu~ Rescue Squad and then transposed from the accident site to University Hospital at Stony Brook by Suffolk County Police Department heli- copter ambulance. He was pronounced dead at USB. Mr. Gonzale2 was a'eated fa faciai in- juries and then released from Eastern Long Island Hospital in Greenport. Although the curve has a history of fi~al and near-fatal accidents, New York S;~te Dcpartmenl of Transportation sFokesman Dave Williams said Monday ~Jat no fatalities at the site were rceorded during 1988, 1989 and 1990. "Now that '~e've had two in one year, it's some- tkmg to look at," Mr. Williams notm:l. Southold Town Police records indicate that the deaths of Mr. Ho and Mr. Hossex weae the only fatalities at Tavern Tam during the past 10 yearn. .~ ~. 7'be Southotd Town Board or any ~sJ ~id~nt"of the town may request that a DOT traffic survey be conducted at' Tavern Turn by writing to the Office of the Regional Director, State Office Building, Veteran's Highway, Hauppauge 11788, according to Mr, Williams. y written request does get an investigation," he added. Difference of Perspective No action has been taken to m'mghtea out the curve because "the situation there does not have a heavy historyof these incidents," Mr. Williams said. Some local residents view Tavern Tam quite differently, however. Sarah Sands, who serves as ELIH director of Community Development, recalled this week that one of her "best friend's brothers was killed there on Christmas Eve about 20 years ago, when he was 18 or 19." · 9re' lwo year. Ms. Sands was involved in a minoi- motor vehicle accident at the ~urve when she was 16. she said. "For years and years and yeats, there've been a zillion The DOT strmghtened out parl otb'the curve five yeas ago, when Mill Creek bridge was resuffaced, according to Ivk. Williams. Warning signs also were m- stalled to alert drivers to the curve, and the pavemem markings have been "As tragic as any death ts...we can only build the roads so safe," Mr. Williams continued. "They have to be used safely, too." A second hot spot on North Fork roads is the curve on the North Road (County Road 48) near its intersection with Chapel Lane in Greenpon. A 63- year-old Port Washington wgman was killed during a head-on collision there .on March 26. And one person died there m 1987, according to Southold Town Police records. Richard LaValle, chief engineer for u% county department of public works, said Tuesday that be is afisure ifa Uaffic study ever has been conducted at the Chapel Lane intersection. "But if there's a problem, then cousinly we can initiate a smdy,"sald Mr. LaValle. Any town residant may request such a study by writing to the Commissroner of Public Works, Yaphank Avenue, Yaphank 11980· "!i'll come down lo myself," the chief engineer said on Tuesday. "We'd ccmduct a study -- ideally during the summer months when there is heavier-than-nor. mai traffic -- and make recommenda- tions.'' If [he county study determines that road straightening is required, "a capital program" to fund such a project would be required, according to Mr. LaValle. "But we may be able to correct it in- house if we determine that pavement mmkers or delineators could solve the problem." . LoNC. / ~-~- · LONG l/ ... PAINE ISLAND MARBH map. Prepared by the Federal Emergency ~Mhnagement Agency (F.E.M.A~) DESCRIPTION ZONE 'B Areas of 100 year flood; base flood elevations and flood hazard factors determined. Areas between limits o~ the 100 year flood, and 500.year flood; or certain areas subject to 100 year floodin~ ~ith avezage depths ~ess than o~e (1) foot or where the contributing drainage area is less ~han one square mile; or areas protected :b~ levees from the bas~ flood. (Medium shading). ISLAND RAILROAD POND / \ / / , \ / ! 4 t %%. ? % D C,.O k/IP A N Y ,/ P P.,. ELt a; N a~,-Y MAP - JosEPH -A-. L.A Co L..L..A LONE ~AILP~DAO /I ./ ROAD L ? N.Y.C. ~c~oUT~ i FOR LACOLLA ESTATE ARSHAMOMAGUE SOUTHOLD NEW YORK 1516J 588 ~383 FAX 588 8466