HomeMy WebLinkAbout6861 BOARD MEMBERS SOU/4i_ Southold Town Hall
Leslie Kanes Weisman,Chairperson •••,°.140 53095 Main Road•P.O.Box 1179
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Eric Dantes ; Office Location:
Gerard P.Goehringer
4Town Annex/First Floor,Capital One Bank
George Horning � rr� 54375 Main Road(at Youngs Avenue)
Kenneth Schneider =. 0®U ��� �rr
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http://southoldtown.northfork.net
ZONING BOARD OF APPEALS
TOWN OF SOUTHOLD RECEIVE
Tel.(631)765-1809•Fax(631)765-9064
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FINDINGS,DELIBERATIONS AND DETERMINATION Southold Town Clerk
MEETING OF MARCH 17,2016
ZBA FILE: 6861
NAME OF APPLICANT: Southold Farm and Cellar
PROPERTY LOCATION: 860 Old North Road, Southold,NY SCTM#1000-55-1-7&8.3
SEQRA DETERMINATION: The Zoning Board of Appeals ("ZBA") has visited the property under
consideration in this application and determines that this review falls under the Type II category of the
State's List of Actions,without further steps under SEQRA.
SUFFOLK COUNTY ADMINISTRATIVE CODE: This application was referred as required under the
Suffolk County Administrative Code Sections A 14-14 to 23, and the Suffolk County Department of
Planning issued its reply dated May 15, 2015, stating that this application is considered a matter for local
determination as there appears to be no significant county-wide or inter-community impact.
LWRP DETERMINATION: The relief, permit, or interpretation requested in this application is listed
under the Minor Actions exempt list and is not subject to review under Chapter 268.
PROPERTY FACTS/DESCRIPTION: The property (hereinafter referred to as the "subject property")
which is the subject of this application consisted of two adjoining parcels of land, which were
subsequently merged, one of which had its development rights intact (DRI) and one of which had its
development rights sold (DRS). The subject property is located in the Agricultural Conservation (AC)
zoning district. The development rights intact parcel (SCTM 1000-55-1-7) is non-conforming at 45,512
square feet in area,where 80,000 square feet is required. It is improved with a two story framed house and
an accessory one story framed building. It has 231.77 feet of frontage on Old North Road; 275.37 feet
along the eastern property line; 337.33 feet along the southern property line; and 81.32 feet along the
western property line. As referenced above, during the course of the hearings on this application the
subject parcel was voluntarily merged by the applicant to an adjoining lot known as SCTM#1000-55-1-
- 8.3 which contains 22.6 acres of development rights sold vacant agricultural land, and which by"Deed of
Development Rights" recorded with the Suffolk County Clerk on December 4, 1992, is limited to -
agricultural production and is prohibited from being utilized for "processing or retail merchandising".
The improved parcel is shown on the survey prepared by John T. Metzger, LLS, dated April 16,2015.
Page 2 of 8—March 17,2016
ZBA#6861—Southold Farm+Cellar
SCTM#1000-55-1-7&8.3
BASIS OF ORIGINAL APPLICATION: Request for variances from Town Code Article III §280-
13A(4)(c)and §280-14 in connection with the Building Inspector's Notice of Disapproval dated April 9,
2015, last amended October 27, 2015,which denied a building permit for the conversion of an existing
building to include a tasting room and the construction of a new winery building,at: 1. less than the
minimum required setback of 100 feet from a major road, 2. less than the code required 80,000 square
feet of development rights intact land per use; in addition to requiring site plan approval from the
Planning Board.
Intervening ZBA Decision# 6903 —Code Interpretation
Variance relief is no longer required from §280-13A(4)(c)(less than the minimum required setback of
100 feet from a major road)because on January 7,2016, in a separate ZBA Decision# 6903—Code
Interpretation,the Board determined that:
1. There exists only two "Major Roads" within the Town of Southold, namely County Road 48
(AKA the North Road/Sound Avenue), and State Road 25 (AKA Main Road).
2. Therefore, Old North Road (the road adjoining the subject property) is not a major road. It falls
under the current definition of"street, local" within the definitional section (240-3) of Chapter
240.
3. Winery structures, located on properties which do not adjoin a Major Road, shall be set back at
the principal front yard setback as cited in the applicable bulk schedule and here the subject
structures meet same.
RELIEF REQUESTED: Thus,the applicant is solely seeking a variance from §280-14 which pursuant to
the Bulk Schedule requires 80,000 square feet of land per use and here the applicant is seeking to add an
additional use (winery) onto a substandard 45,512 sq. ft. non-conforming development rights intact
("DRI")parcel that is presently improved with a single family dwelling and a 1 story framed building.
ADDITIONAL INFORMATION/BACKGROUND:
History-Notices of Disapproval
The original Notice of Disapproval (NOD #1), dated April 9, 2015, disapproved the subject building
permit application "...for the conversion of an existing building to include a tasting room and the
construction of a new building for agricultural `production' due to: 1. the proposed winery structure
holding a front yard setback of 60 feet where the code requires a 100 foot minimum setback from a major
road, in addition to requiring site plan approval.
On June 19, 2015 NOD #1 was amended (NOD#2) to clarify that the proposed construction was not a
"new building for agricultural production" but rather a "new winery building" (agricultural processing)
with an accessory wine tasting room on the 1.04 acre/45,512 sq. ft. non-conforming DRI parcel, improved
with a single family residence and framed building. Additionally,NOD #2, added the following grounds
for disapproval: 1. less than the 10 acres of land devoted to agricultural purposes required on which to
locate a winery; 2. insufficient lot area of 45, 512 sq. ft. where the code requires 80,000 sq. ft. per use in
the AC zone district, per the bulk schedule, or here a total minimum of 160,000 sq. ft. for the existing
residential use and the proposed winery use; 3. a rear yard setback proposed for the winery building at 15
ft. and 4 ft. respectively where the code requires a minimum rear yard setback of 60 ft. in the AC zone
district.
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Subsequent to the issuance of NOD#2 the ZBA received a deed from the applicant's attorney on
September 10, 2015, whereby the applicant voluntarily merged the improved DRI parcel,with an adjacent
property (SCTM#1000-55-1-8.3) which contains 22.6 acres of development rights sold (DRS) vacant
agricultural land, thereby creating a 23 + acre single parcel. This merger eliminated the need for two of
the above referenced variances namely: 1. less than the 10 acres of land devoted to agricultural purposes
required on which to locate a winery and 2.the rear yard setback.
On September 10, 2015 (NOD#3) based on the merger an amended Notice of Disapproval was issued to
formally remove those grounds of disapproval. However, the §280-14 ground for insufficient lot area of
45, 512 sq. ft. where the code requires 80,000 sq. ft. per use in the AC zone district, per the bulk schedule,
or here a total minimum of 160,000 sq. ft. for the existing residential use and the proposed winery use
was baselessly removed from NOD#3.
In an amended Notice of Disapproval dated October 27, 2015 (NOD#4), the §280-14 ground for
disapproval was rightfully returned to same as referenced above under Basis of Application/Relief
Requested.
ZBA File#6889,Alison Latham, 1755 Old North Road, Southold,NY
It must be noted, that after NOD#3 was issued, the ZBA received an application from the applicant's
neighbor, Alison Latham, requesting an interpretation of the Town Code, pursuant to §280-146D, Article
III Section 280-14, "Bulk Schedule," appealing NOD#3 regarding the absence of the §280-14 ground of
disapproval, inter alia. A public hearing on the application was scheduled and legally noticed for
November 5, 2015. On November 4, 2015, the Board of Appeals received a letter from Ms. Latham
stating that since the October 27, 2015, Notice of Disapproval remedied the bulk schedule omission, she
now deemed her application to be moot and withdrew same with the caveat that her file #6889 with
attachments be formally incorporated into the subject Southold Farm and Cellar application #6861. The
Board did so by Resolution at the November 5, 2015, public hearing, also incorporating into the record
the written response by the attorney/agent for Southold Farm and Cellar.
Public Comments
The ZBA received several letters, along with verbal testimony at public hearings which occurred on June
4, July 2, August 6, October 1, November 5 and December 3, 2015, concerning this application. The
majority of the comments that were in support were not based on the merits of the application, but rather
the applicant's ability to make wine. Most of those who commented in support do not live in the subject
neighborhood or in Southold Town and did not address the variance relief requested, but rather focused
on the applicant having a young family and the quality of the wine. Letters of support were received from
three neighbor's(Johnson,4130 Horton's Lane;Burns, 500 Old North Road; and Haman, 1020 Old North
Road) all referring to the Meador's as "very nice people," and stating that the proposed winery would be
good for the local economy. One neighbor ( Latham, 1755 Old North Road) submitted extensive written
documentation and verbal testimony arguing against the application on the basis of the standards for
variance relief defined in New York Town Law 267 (B). Since it is well settled that variances run with the
land, the ZBA may not grant variance relief on the basis of the applicant's character or business model,
but rather solely based upon the merits of the application as evaluated pursuant to the Town Law §267
standards as set forth below.
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Comments from other Southold Town Agencies
Town of Southold Planning Board
The Zoning Board, in a Memo dated April 21, 2015, requested comments from the Southold Town
Planning Board. The Planning Board responded in a memo dated May 6, 2015, with numerous concerns
about the application including the "incompatibility of a retail winery with the subject neighborhood
where there are houses on three sides of the parcel in very close proximity." On September 1, 2015, the
Planning Board sent a memo with additional comments stating "[t]he Planning Board does not support
granting relief for a winery to be located on this parcel" (SCTM#1000-55-01-07). The Planning Board
again gives numerous reasons for its statement such as "serious concerns over the long range effects of
allowing retail wineries on parcels with no room for more than a few parking spaces....This location is on
a narrow street, which is not designed to handle the usual winery traffic that typically includes stretch
limousines and buses. There is no shoulder available for parking on the street." The Planning Board
concludes with "Finally, any relief must be conditioned on Site Plan approval by the Planning Board and
the variances should be considered null and void if they cannot obtain site plan approval. There should be
acknowledged that a variance is not a guarantee of approvals from any other agency. The site is small
enough that the Planning Board could conceivably be unable to safely site plan the uses."
Town of Southold Agricultural Advisory Committee(AAC)
At the ZBA's request for comments, the AAC sent a letter on August 19, 2015, stating that it reviewed
the application. The overall tone of the letter appears to support the application. However, the AAC does
not state its support definitively, nor does it provide substantive reasoning that would mitigate the
intensity of a winery use on such a small, non-conforming property in a residential neighborhood.
Additionally, contrary to the AAC letter, there is no precedent for the ZBA granting such substantial
relief; and the AAC cites no such precedent. Moreover,the AAC acknowledged that it has,for some time,
been working with the Town Board to finalize revisions of the Town Code affecting agriculture, citing
examples of areas they believe need to be updated and improved to better support farming operations.
However, the Board of Appeals is not the legislative body of town government and may only grant relief,
where justified, from the code that is currently in force and effect.
Town of Southold Department of Land Preservation
The ZBA requested review by the Department of Land Preservation who replied in writing on August 19,
2015, stating no specific comment on the application, since the 1.04 acre property with the development
rights in tact is not subject to a Development Rights Easement, and was not part of the land involved in
the 1992 Dickerson to Town of Southold sale of development rights on the applicant's adjacent
agricultural property.
Violations on the Subject Property
1. Since June 2014, the applicant has been operating an illegal wine tasting room in an accessory
building located on the subject property without the benefit of the requisite certificate of
occupancy, and without ZBA and Planning Board approvals. Per code, a wine tasting room may
only be operated in an AC zone as an accessory to a winery (agricultural processing) use. The
only lawful use which currently exists on the subject property is residential.
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2. The Building Department issued a cease and desist order on or about July 8, 2015, and the
applicant ceased operations, however resumed same sometime after the filing of the subject ZBA
application pursuant to Town Law §267-a(6).
3. The applicant has acquired a NYS Farm Winery license based upon a false statement made in the
application.The application specifically questions, in the Premises Questionnaire portion, Section
2. (e), "Does the proposed location of the business comply with all state and local regulations and
zoning code?" The applicant answered: Yes. This is clearly a false statement because the
applicant did not have a permit to construct a winery, a certificate of occupancy to operate same,
• nor did the applicant have site plan approval for a winery at the proposed location.
FINDINGS OF FACT/REASONS FOR BOARD ACTION:
The Zoning Board of Appeals held public hearings on this application on June 4,July 2,August 6,
October 1,November 5 and December 3, 2015, at which time written and oral evidence were presented.
Based upon all testimony, documentation,personal inspection of the property and surrounding
neighborhood, and other evidence,the Zoning Board finds the following facts to be true and relevant and
makes the following findings: ***
1. Town Law §267-b(3)(b)(1). Grant of the variance will produce an undesirable change in the
character of the neighborhood or a detriment to nearby properties. In the vicinity of the subject parcel,
exists Old North Road a narrow two lane local street with a legal 50 foot right of way width, of which
only approximately 20 feet in width is paved with asphalt. The street shoulders between the edges of
pavement and the road right of way has mature trees and lawns maintained by adjoining properties. Old
North Road has no striping and no curbing. The subject property is located on Old North Road and lies
between Horton's Lane to the west and Young's Avenue (AKA Railroad Avenue) to the east. Both of
these streets connect to CR 48, a major road. Either one of these streets must be used to access the subject
property. During personal inspections of the surrounding neighborhood, members of the Board observed
that Old North Road terminates at the intersection of Horton's Lane, where there is an extremely narrow
three-way junction on a sharp bend with a stop sign and blind spots. Accessing the subject property from
CR 48 along Horton's Lane one passes seven dwellings; accessing the subject property from CR 48 along
Young's Avenue one passes 15 dwellings.
Granting the requested variance will be detrimental to these nearby residential properties, which are
located in a quiet residential enclave, as a winery will necessarily cause an increase in vehicular traffic on
this very narrow residential country lane, along with causing an increase in the noise normally associated
with a winery to wit vehicular, music, and social, thereby interfering with the quiet enjoyment of those
residential properties. Adding a tasting room and winery on the one acre subject parcel, which is already
developed with a pre-existing single family dwelling on a non-conforming lot, would also create an
undesirable change in the character of the subject neighborhood by authorizing a unique mixed-use parcel
which is not characteristic of the residential neighborhood.
The Board is aware that there is a well-established vineyard located at the easterly origin of Old North
Road where it intersects with CR 48 (One Woman Vineyard). This vineyard is currently proposing to
establish a winery in a pre-existing agricultural building with a conforming front yard setback on a
portion of the parcel with the development rights intact.No variance to the bulk schedule is required since
the DRI property does not and will not contain a dwelling (which requires the issuance of a certificate of
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occupancy) but rather will contain one use, a winery with an accessory trailer for temporary farm labor
housing which has a legal trailer permit that is current and must be regularly renewed. Additionally,
although this property is located on Old North Road, unlike the applicant's property this vineyard has
extensive frontage on CR 48, a major road, with the winery entrance on Old North Road visible from and
merely 400 feet away from CR 48. In contrast,the entrance to the applicant's property is 2,100 feet from
CR 48 via Horton's Lane; more than 5 times that distance.
2. Town Law 267-b(3)(b)(2). The benefit sought by the applicant can be achieved by some method,
feasible for the applicant to pursue, other than an area variance. The benefit of being able to process and
market wine from the subject residential property may be achieved by the transportation of grapes grown
on the subject property to an off-site independent wine processing facility. In fact since 2013 the applicant
has been producing wine in exactly such a manner. Additionally, the applicant can legally establish an '
off-site tasting room within the Town of Southold in a properly zoned business/retail district as other
local wineries have done.
3. Town Law $267-b(3)(b)(3). The variance requested herein is mathematically substantial,
representing a 71%relief from the code. The subject 45.512 sq. ft. parcel is already non-conforming with
an established one-family dwelling that requires a minimum of 80,000 sq. feet per bulk schedule.
Granting a variance from §280-14 for a winery with an accessory tasting room will constitute a second
use requiring an additional 80,000 sq. feet or a minimum total of 160,000 sq. feet, and will severely
increase the parcel's non-conformity. Although the applicant merged the two adjacent parcels to create a
23.6 acre parcel, thereby eliminating two variances that were originally required (rear yard setback and
insufficient acreage devoted to the vineyard), the development rights on the 22.65 acres portion of the
subject property were conveyed to the Town of Southold by deed dated November 25, 1992. Pursuant to
that deed and the covenants and restrictions imposed by the Town when development rights were
purchased, the property is prohibited from being used for "processing or retail merchandising", and may
only be used for agricultural production, defined as the growing of crops. Therefore, since the applicant
cannot put a winery on the DRS portion of the property,the Board finds that the applicant may not benefit
from such acreage by merger for bulk schedule purposes. Additionally, the Board finds that it is irrational
that development rights sold property should be utilized to satisfy the bulk schedule for proposed uses on
land which cannot be so developed. To do so would virtually undermine the intent of the Town's bulk
schedule and the Town's Land Preservation Program. These findings are consistent with the opinions
expressed in a Memorandum to the Chief Building Inspector from the Office of the Town Attorney dated
October 27, 2015, and by the Southold Town Planning Board in their Memorandum of May 6, 2015 in
which they state: "The Planning Board is very concerned that a winery is being proposed on this small
parcel.There is already a single family dwelling on this parcel and a winery would result in a 2nd principal
use on an already non-conforming lot, according to the Bulk Schedule in the Town Code. Adding a
winery use to this 1 acre parcel would require a substantial Area Variance (160,000 sq. ft. of lot area
where only 45,512 sq. ft. exists) or a 71% lot area difference." Finally, granting such substantial relief
from the bulk schedule would set a precedent that would adversely impact not only the subject
neighborhood, but could have town wide consequences for appearing to support huge increases in the
degree of non-conformity on similar small residential lots in other neighborhoods in Southold Town.
4. Town Law 267-b(3)(b)(4) Grant of the variance has the potential to have an adverse impact on the
physical or environmental conditions in the neighborhood because it would permit the establishment of a
commercial winery with retail wine sales in an otherwise quiet residential/rural neighborhood, and on a
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very small lot that would not allow for adequate buffering and only very limited on-site parking. Such
commerciaUretail activity would increase traffic on Old North Road, which is a narrow residential street
that is not in the best condition, and, with only 8 parking spaces proposed, visitors to the winery would
necessarily be parking in the street. This will result in damage to lawns of neighboring properties and
make that portion of the road narrower and considerably more dangerous.
To mitigate potential adverse impacts,the applicant has offered to accept conditions and/or covenants and
restrictions on variance relief that include no special events, busses, or limousines; barring the public
from the wine processing building; and capping the occupancy of the tasting room to the number of on-
site parking spaces, which restrictions they allege comport with their proposed business model. However,
conditions or covenants and restrictions cannot remedy the grossly undersized nature of the portion of the
subject parcel with the development rights intact, or the intensity of the uses which would be conducted
thereon. Additionally, while the ZBA appreciates these assurances from the applicant, we agree with the
opinion expressed by the Planning Board that the applicant's "very existence on the map of wineries will
lead to this type of traffic [buses and limousines] attempting to visit by virtue of being easily located on
internet maps and GPS systems.Also we must consider that future owners might have a different business
model."(Planning Board Memorandum dated Sept. 1,2015).
5. Town Law $267-b(3)(b)(5). The difficulty has been self-created. The applicant purchased the
parcel(s) after the Zoning Code was in effect and it is presumed that the applicant had actual or
constructive knowledge of the limitations on the use of the parcel(s) under the Zoning Code in effect prior
to or at the time of purchase, as well as actual or constructive knowledge of the covenants and restrictions
encumbering the property the applicant merged with the residential parcel that prohibits "processing or
retail merchandising" of crops grown on same.
6. Town Law $267-b. Denial of the requested relief is the minimum action necessary and adequate to
preserve and protect the character of the neighborhood and the health, safety and welfare of the
community.
***After the closing of the December 3, 2015, public hearing, the applicant's agent/attorney granted an
extension to "the end of March 2016" on the 62 day time frame in which the Board is required to render
a decision.
RESOLUTION OF THE BOARD: In considering all of the above factors and applying the balancing test
under New York Town Law 267-B, motion was offered by Member Weisman(Chairperson), seconded by
Member Schneider, and duly carried,to
DENY the variance as applied for.
Vote of the Board: Ayes: Members Weisman (Chairperson), Dantes, Horning, Goehringer, Schneider.
This '-solution was duly adopted(5-0).
Leslie Kanes eisman, Chairperson
Approved for filing /2212016
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ZBA#6861—Southold Farm+Cellar
SCTM#1000-55-1-7&8.3
RESOLUTION OF THE BOARD: motion was offered by Member Weisman (Chairperson), seconded by
Member Schneider, and duly carried, as follows:
WHEREAS, the applicant voluntarily merged his improved DRI parcel (SCTM 1000-55-1-7) with his
adjacent DRS agricultural property (SCTM# 1000-55-1-8.3) to remove two required variances from this
application; AND WHEREAS said variance relief is now moot by virtue of this denial; NOW BE IT
RESOLVED that the Board of Appeals grants the applicant a waiver of merger and waives associated
fees and the required public hearing, upon written request of same, followed by the submission of duly
recorded deeds, all to be completed within 2 years of the date of this decision.
Vote of the Board: Ayes: Members Weisman (Chairperson), Dantes, Horning, Goehringer, Schneider.
This Resolution was duly adopted(5-0).
•
Leslie Kanes Weisman, Chairperson
Approved for filing c�/ f /2016