HomeMy WebLinkAbout4058APPEALS 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 HEARINGS
SCOTYL. 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,
NY 11971, on THURSDAY~ OCTOBER 24~ 1991~ commencing at the
times specified below:
(1) 7:30 p.m. Appl. No. 4060 - ANTHONY C. MEISEL.
Variance to the Zoning Ordinance, Article III, Section 100-30A.3
and Article XXIV, Section 100-244, for permission to construct
open deck addition (to existing dwelling) with an insufficient
frontyard setback. The lot area is nonconforming in this R-40
Low-Density Residential. 1275 Fanning Road, New Suffolk, NY;
County Tax Map District 1000, Section 117, Block 4, Lot 30.
(2) 7:33 p.m. Appl. No. 4059. DOROTHY F. CAREY.
Variance to the Zoning Ordinance, Article III, Section 100-32
for permission to construct proposed addition and deck with
insufficient frontyard setbacks. The subject'parcel is known as
Lot 7 on the Map of Edgemere Park, is substandard in size, and
is located in the R-40 Zone District. Location of Property:
Page 2 Legal
Hearings for October 24, 1991
Southold Town Board of Appeals
Corner of Edgemere Avenue and McDonald's Crossing, Laurel, NY;
County Tax Map.No. 1000-128-6-20.
(3) 7:35 p.m. Applications 'of NYNEX MOBILE COMMUNI- ~ .
CATIONS/ARTHUR V. JUNGE, INC. concerning premises located in the j
~t~?d~u(e~I)Ny~°n~o~in~riT~~ ~ ~.k~_~_i~8115.1~°unty<~
(A) Appl. No. 4058. Variance to the Zoning Ordinance,
Article XIV, Section 100-142 for permission to construct
monopole radio tower and accessory equipment-storage building
with rear
insufficient side and yard setbacks.
(B) Appl. No. 4062. Special Exception to the Zoning
Ordinance, Article XIV, Section 100-141B(1) for permission to
establish public utility use and construct monopole radio tower
and accessory equipment-storage building.
(4) 7:45 p.m. Appl. No. 4061 - EDWARD T. ROUSE. Variance to
the Zoning Ordinance, Article XXVIII, Section 100-281, and
Article IIIA, Section 100-30A.3, Bulk Schedule, for approval of
insufficient lot area and width of two parcels, each with a
preexisting single-family dwelling. Location of Property:
Corner of Sterling Place and Champlin Place, Greenport, NY; Lot
Nos. 60, 61 and 62 on the Map of John G. Champlin filed in the
Page 3 - Legal Nott
Hearings for October~24, 1991
Southold Town Board of Appeals
Suffolk County Clerk's Office as Map No. 337; County Tax Map
Parcel No. 100Q-34-3-28.
(5) 7:50 p.m. Appl. No. 4028 - RICHARD AND LISA OLIVERI.
(Amended) Variance to the Zoning Ordinance, Article XXIII,
Section 100-239.4 for permission to locate new dwelling,
inclusive of deck and steps areas, with a setback at less than
75 feet from the landward edge of the freshwater wetland.
Location of Property: Westerly Side of Crescent Avenue, Fishers
Island, NY; County Tax Map No. 1000-006-06-20.5, containing 2.5
acres.
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. For more information,
please call 765-1809.
Dated: October 11, 1991.
BY ORDER OF THE SOUTHOLD
TOWN BOARD OF APPEALS
GERARD P. GOEHRINGER
CHAIP~MAN
By Linda Kowalski
TO: Times-Review Delivered 10/11/91
L.I. Traveler-Watchman For Publication
Copies on / /91 to the following:
TOWN OF SOUTIIOI.I)
BUILDING DEPAR. TM I~NT
TOWN CLERK'S OFFICE
SOUTtlOED, N.Y.
NOTICE OF DISAPPROVAL
Date AUGUST 15, . ..... 19 .9.1...
To MARIE ONCIONI~ .E. SQ. (AGENT) NYNEX MOBILE COI~UNICATION (LESSEE) ARTHUR JUNGE,
218 FRONT STREET BOX 562
GREENPORT, N.Y. 11944
PLEASE TAKE NOTICE that your application dated JULY 91 & REC. AUG. ]3, 19 91
for permit to ...C.O.N.S.T.R.U.C.T..M.O?OPOLE RADIO TOWER & EQUIP[.ffiNT BUILDING
Location of Provertv 21855 COUNTY ROAD 48 CUTCU . . .
. ~- .................... OGUE. NY
House No. ' ............................
County Tax Map No. I000 Section 96 Block I
.............. lot 19. I
Subdivision ........... Filed Map No.
...... · ............... Lot No ..................
is returned herewith and disapproved on tile folloxving grounds tINDER ARTICLE XIV
SECTII~N 100-1/42 PROPOSED CONSTRUCTION WILL BAVE INSUFFICIENT SIDE YARO AND REAR
YARD SETBACKS.
ACTION REQUIRED BY THE ZONING BOARD OF APPEALS AND SIT~ PLAN APPROVAL IS
REQUIRED BY. ~ PLANNING BOARD.
Jlhz 1lJxfig Inspector
TDOMAS J. FISNER
INC.
RV 1/8o
Exnn]ined ................. 19...
FOIIM NO, !
TOWN OF SOUTIIOLD
BUILDING DEPAI11MENT
]'OWN IIALL
SOUTIIOLD, N.Y. 11971
TEL.: 765 1803_
Approved ................. 19 . .. Permit No ...........
Disapproved a/c .....................................
B(:~ OF IIEAI,'rll
3.~','i'.q OF PI,AN,q ............
.~lJ RV F,Y .....................
CIIECK ......................
· ~EPTI C FORH ................
NOTI F'Y
CAI.1 ......................
HA I I, TO:
(Building Inspector)
APPLICATION FOR BUILDING PERMIT
Date July 199.1
INfi]'RII('I'I()Nfi
a. This application must be completely filled in by lypewriter or iu ink and suhmilted to the finilding Inspector, with 3
sets of plans, accurate plot plan 1o scale. Fee acco[ding Io schedule.
b. Plot plan showing location of lot and of bnihlings (m premises, relalirm~hip to adjoining premises or pnblic streets
or areas, and giving a detailed description of layout of properly must be drawn ou the diagram which is part or this appli-
cation.
c. The work covered by this application may not be commenced before issuance of Building Permit.
d. Upon approval of this application, tl~e Building Inspecto~ will issned a Bnilding Permit to the applicant. Such permit
shall be kept on the premlses available for inspecliou Ihroughoul Ihe wink.
e. No building shall be occupied or used in whole ot iu pad for any pnrpose whatever until a Certificate of Occupancy
shall have beeu granted by the Building Inspeclor.
APPLICAIION IS HEREBY MADE to the Boilding l)epadment for the issuance of a Building Permit pursuant to the
Building Zone Ordinance of the Town of Sonthohl, Suffolk County, New York, and olher applicable Laws, Ordinances or
Regulations, for the constmcfion of buildings, addillons or alleral(ons, or for iemoval or demolifiou, as herein described.
The applicant agrees to comply with all applicable laws, ordinances, buihllng code, bousin~ code, and regulations, and to
admit authorized inspectorn on pre~11i~es and in buihlin~ for necessary in~pecli{m~.
F ...........
{Si[matme of appllcant, or oame, if a corporanon)
cio Hat~e Ong~on5, Esq.
2.1.8 · Fto. nt · g.t.,., Bo-x. -56~-,- .G~ e~npo~.b; · g...Y-.-
(Mailing address of applicant)
State whether applicant is owner, lessee, agent, archilecl. ¢,;_,im'm, general contractor, electrician, plumber or buikler.
t, essee
Name of owner o r premises .... /~ ~..t.lu! [. Y.....J P JLA ~, . .17: q ~ .............................................
(as m~ II~e tax roll or latesl deed)
If applicant is a corporalion, signature of dnly aulho~ized {,I fit:er.
(Name and title of corporate officer)
Builder's License No ..........................
Plumber's License No .........................
Electrician's License No .......................
1 6 1991 i i;
Oilier Trade's License No ......................
Localiou of land on which proposed ~vork will bc done.
Hid(lie Rd.~ .C.~y
Ilouse Number Sheet
Rd. 68 Soulho[d
ll:nntet
County Tax Map No. 1000 Section .... .0.9.6. .......... lth~ck ....... I. ..... · ..... Lot . . . ! 9 .........
Subdivision ..................................... Filed Itl;q, No ............... Lot ...............
(Name)
State existing nsc and occnpancy of premises and inlcmh'd osc ami occtlpant, y of proposed CoIlslrncliOll:
a. Existing use and occupancy ............ 0~me~ c3,a l. o.g[i ce.s. ...................................
some use of plom~.~pB. ]nsLal.laLton of a monopole
b. Intended use and occupaucy radio [owe~ .......................................
.............. and eqnipment
Repair .............. Removal .............. l)mnolition .............. Other Work .......... : .....
(Description)
4. Estimate'd Cost .................................... '.. Fee .............................. · ........
(to be paid on filing this application)
5. If dwelling, number of dwelling units .... p/.a. ....... Nnmber of dwelling nnits on each floor ................
If garage, number of cars .... . ....................................................................
6. If business, commercial or mixed occnpancy, specify nature and extent of each type of rise .....................
7. Dimensions of existing structures, if any: Front ............... Rear .............. Depth ...............
Ileigbt Nmnber of Stories
Dimensions of same structure witb allerations or additions: Front ................. Rear ..................
Depth ...................... Ileight ...................... Number of Stories ......................
8. Dimensions of entire new construction: Front ............... Rear ............... Depth ...............
Ileigbt ............... Number of Slories
9. Size of lot: Front ...................... P, ear ...................... I)eptls ......................
10. Date of I'urcbase ............................ i',~ame of Former Owner .............................
I I. Zone or rise district in which premises are situated
12. Does proposed construction violate any zoning law, rodin:race or regnlation: ................................
13. Will lot be regraded ............................ Will excess till be removed from premises: Yes No
14. Name of Owner of premises .................... Achh'ess ................... Phone No ................
Name of Architect ........................... Adthess ................... Phone No ................
Name of Contractor .......................... Adthess ................... Phone No ................
PI.OT DI/',~ ;P. AM
Locate clearly and distinctly all buihlings, whether cxisling or proposed, and indicate all set-back dimensions from
property tines. Give street and block number or descriplion according to deed, and show street names and indicate whether
interior or corner lot.
'" ':~:~' :.''' :~[:: '~:-'., .... (.. :'. ........ I,ei,,g duly sworn, del, OSCS and says t ,at be is the applicant
(Name of individual si~ning contrac~
above named, ff ~&/
~/~5-~ff ~ (Cont~aclnr, agent, coq)orate officer, etc.)
of said o~t or--owne~ and is drily authorized to perform or have performed lhe said work and to make and file this
application; that all statements contained in this al)plication are Iltle Io the best of Ids knowledge and belief; and that the
work will be performed in the manner set forth in the ai)plicalion filed therewith.
Sworn to before mc this
J~lrOWN OF SOUTHOLD, NIEW"yoR~
RECEIVED
APPEAL FROM DECISION OF BUILDING INSPECTOR APPEAL NO.
~ ~ ~ DATE .........
TO THE ZONING BOARD OF APPEALS, TOWN OF S~~
Name of Appellant Street and Numar
Greenport N Y.
...................................................................................................... : .................. HEREBY APP~[ TO
Municipality 5t~t~
THE ZONING BOARD OF APPEALS FROM THE DECISION OF THE BUILDING INSPECTOR ON
APPLICATION FOR PERMIT NO ..................................... DATED Ju~.¥......~.g.~. .......................
WHEREBY THE BUILDING INSPECTOR DENIED TO
( )
( )
(X)
Nome of Applicant for permit
of
20..00
Street and Number Municipality State
PERMIT TO USE
PERMIT FOR OCCUPANCY
BUILDING PERMIT
1. LOCATION OF THE PROPERTY ~...2..]~...8..5..5....g..~.~..~..t.z..?...d....~...4..8..:.~...~..u..t:..c.~..~..8...u..e..:..~.N..:...~.: ..........
Street /Hamlet / Use District on Zoning Map
.D.!..s.??~t.~.~!.~..~..~..~.5..e..c..t.~!.~..n~...9.~?.~.B~1..~..c...k.~..!.~....!.~rrent O~ner Arthur V. Junge, Inc.
Map No. Lot No. Prior Owner
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 XIV Section 100-142
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 Cans. Laws
Art. 16 Sec. 280A Subsection 3
)
4. PREVIOUS APPEAL A previous appeal ~d (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
( ) request for a variance
and was made in Appeal No ................................. Dated ......................................................................
)
)
REASON FOR APPEAL
A Variance to Section 280A Subsection 3
A Variance to the Zoning Ordinance 100-142
,s requested forthe reasonthat the proposed structure and its location do not
meet the side and rear yard set-back requirements and variances are
required for both.
Fm~n 7,BI
(Continue on other side)
REASON FOR APPEAL 0:3 V I ] ') .3 ~ Continued
1. STRICT APPLICATI F THE'ORDINANCE wouldproduceprocticoldifficultiesorunneces-
saryHARDSHIPbecau,eC, he s~te has,,a building and parking area already in
existence and p~e~"*~f~ requested building and monopole to
comply with the set-back requirements is either impossible because of
existing structures or would require destruction of an existing pre-
viously approved site plan. Additionally, the owner has entered into
a lease agreement for this particular location for the placement of
the building and monopole.
2. The hardship createdis UNIQUE andisnotshared by all properties alike in the immediate
vicinity ofthis pr~erty andinthis use district because of a pre-existing structure and
the small amount of area required to fulfill the applicant's needs.
Additionally, the requested structure is unique in that it is the only
method of transmitting communications for a cellular mobile communica-
tions system. The increased usage of cellular telephones by the public
requires the installation of proportionately spaced radio antennas to
fulfill a public utilities obligation to respond to the needs and
demands of the public at large.
3 The Variance would observe the spirit of the Ordinance and WOULD NOT CHANGE THE
CHARACTER OF THE DISTRICT because the structure is a permitted use in L.I.
district; the site is surrounded by commercial and/or agricultural
uses and will not interfere with or be aesthetically incompatable with
those uses.
STATE OF NEW YORK )
COUNTY OF SUFFOLK)
Sworn to this .............................................. dsy of -
Notary Public
ture
C~RMELA L. BORRELU
Commi.~ion EXlgree Jalnuery 31,
/pc, o- %_/._/?,/TOWN OF SOUTHOID 'PROPERTY RECORD CARD
OWNER STREET VILLAGE DIST. SUB. LOT
FORMER OWNER ,~ NE 0U4~,i¢,(~' "i'a v/~1 E -. ACR.
ff[~¢& ~ ~ S W ~ ~PE OF BUILDING '
~,~ s~s. ~y ~ co~.~. ~,,~. ~,.w,u, ~ .
~ND IMP. ( ~OTALDATE REMARKS ~/~ p~y. ~
FAR~ ~- ,Ac~e Valu~P~r ~Ju/ J
Tillable 1
Tilloblo
Tillable 3
Woodlond
Swamplahd FRONTAGE ON WATER 1 ~m~ S,C4,, i,,:,~.I i~'*i' ' -~--
Brushland FRONTAGE ON ROAg
House Plot DEPTH
BULKH~D
Total DOCK
TRIM
r ,,, /D~.~e ~"~ Both Dinette
M. Bldg. ~ /~ ~ ~ ~ ~ Foundation___
~tension ~ ~/~ ' ~asement Fl~rs ~'. K.
Ext ~ ~- ~ ~ ~ /~ Ext. Walls ~ Interior Finish LR.
~tension Fire Place Heat ~ ~. DR.
~ype Roof Rooms ]st Flcor
Porch ~ X /~; & 30 ' /~7 Recreation Room Rooms 2nd Floor FIN. B.
Porch · 3/~ Dormer
Breezeway Driveway
Garage
Patio
O.B.
· o., ,,
PLANNING BOARD MEMBERS
Bennett Orlowski, Jr., Chairman
George Ritchie Latham, Jr.
Richard G. Ward
Mark S. McDonald
Kenneth L. Edwards
Telephone (516)765-1938
PLANNING BOARD OFFICE
TOWN OF SOUTHOLD
~arie Ongioni
Attorney At Law
218 Front Street
Greenport, New York
11944
December 10,
SCOTI' L. HARRIS
Supervisor
Town Hall. 53095 Main Road
P.O. Box 1179
Southold. New York 11971
Fax (516) 765-1823
1991 I~~
Illl
Re: Amended site plan forNYNEX
Mobile Communications & Arthur
V. Junge, Inc.
Proposed Amendment to Approved
Site Plan for Arthur V. Junge
Industrial Building
N/s County Road 48,
Cutchogue, New York
SCTM g 1000-96-1-19
Dear Ms. Ongioni:
The following resolution was adopted by the Southold Town
Planning Board at a meeting held on December 9, 1991.
BE IT RESOLVED That the Southold Town Planning Board,
acting pursuant to the State Environmental Quality Review Act,
start the coordination process on this Unlisted Action.
The cost estimate for the environmental review will be sent
under separate cover.
If you have any questions, please feel contact this office.
CC:
Sincerely,
Bennett Orlowski, Jr.
Chairman
~Gerard P. Goehringer, Chairman, Zoning Board of Appeals
Victor Lessard, Principal Building Inspector
Harvey Arnoff, Town Attorney
PLANNING BOARD MEMBERS
Bennett Orlowski, Jr., Chairman
George Ritchie Latham, Jr.
Richard G. Ward
Mark S. McDonald
Kenneth L. Edwards
Telephone (516) 765-1938
PLANNING BOARD OFFICE
TOWN OF SOUTHOLD
SCOTT L. HARRIS
Supervisor
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
Fax (516) 765-1823
December 10, 1991
RE:
Lead Agency Coordination Request for
NYNEX Mobile Communications & Arthur V.
N/s County Route 48
Cutchogue, New York
SCTM #1000-96-1-19
Dear Reviewer:
Junge,
The purpose of this request is to determine under Article
(State Environmental Quality Review Act-SEQRA) of the
Environmental Conservation Law and 6 NYCRR Part 617 the
following:
1. Your jurisdiction in the action described below;
2. Your interest in assuming the responsibilities of lead
agency; and
3. Issues of concern which you believe should be evaluated.
Enclosed please find a copy of the proposal a completed
Environmental Assessment Form (EAF), and decision of the Zoning Board
of Appeals to assist you in your response.
Project Name:
NYNEX Mobile Communications
N/s County Route 48
Cutchogue, New York
& Arthur Junge Inc.
Requested Action:
To construct a monopole tower one hundred (100)
feet in height for the purpose of installing a
cellular communications transmitter and to
construct an accessory equipment storage
building for the tower on a Light Industrial
site with an existing industrial building.
SEQRA Classification: ( ) Type I
(x) Unlisted
Contact Person:
Valerie Scopaz
(516)-765-1938
The lead agency will determine the need for an environmental
impact statement (EIS) on this project. Within thirty (30) days of
the date of this letter, please respond in.writing whether or not you
have an interest in being lead agency.
Planning Board Position:
(x) This agency wishes to assume lead agency status for this action.
) This agency has no objection to your agency assuming lead agency
status for this action.
(x) Other. ( See comments below).
Comments:
The Southold Town Zoning Board of Appeals has already imposed
certain conditions on this public utility use which requires a
Special Exception. A copy of the resolution, only, is attached.
cc: /Building Department *
· Southold Town Board of Zoning Appeals
· Suffolk County Dept. of Health Services *
Department of Environmental Conservation -
* Maps are enclosed for your review
Albany
SCOTT L. HARRIS
SUPERVISOR
FAX (516) 765 - 1823
TELEPHONE (516) 765 - 1800
BOARD OF APPEALS:
Gerard P, Goehringer
Chairman
765-1809
OFFICE OF THE ~,0ARD OF
TOWN OF SOUTHOLD
APPEALS
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 1 I971
ACTION OF THE BOARD OF APPEALS
Appeal No. 4058:
NYNEX MOBILE COMMUNICATIONS/ARTHUR V. JUNGE, INC.
Variance to the Zoning Ordinance, Article XIV, Section 100-142
for permission to construct monopole radio tower and accessory
equipment-storage building with insufficient side and rear yard
setbacks. Zone District: Light Industrial (LI). Location of
Property: 21855 County Road 48, Cutchogue, NY; County Tax Map
Parcel No. 1000-96-1-19.1.
WHEREAS, after due notice, a public hearing was held on
October 24, 1991, and at said hearing all those who desired to
be heard were heard and their testimony recorded; and
WHEREAS, the Board has carefully considered all testimony
and documentation submitted concerning this application; and
WHEREAS, the Board Members have personally viewed and are
familiar with the premises in question, its present zoning, and
the surrounding areas; and
WHEREAS, the Board made the following findings of fact:
1. The premises in question is located in the Light
Industrial (LI) Zone District in the Hamlet of Cutchogue, Town
of Southotd, and is more particularly identified as County Tax
Map District 1000, Section 96, Block 1, Lot 19.1.
2. The subject premises consists of a total area of 1o04 :
acres (or 45,598 sq. ft.) with a frontage of 168 feet along the'
north side of County Route 48 and a lot depth of 252+- feet.
This parcel is improved with an existing building and uses which
were the subject of a conditional approval by the Board of
Appeals under Appl. No. 3835 rendered April 27, 1989 and Appl.
No. 3705 rendered March 3, 1988 (Arthur L. Junge, Inc.), as well
as site plan approval by the Southold Town Planning Board.
3. By this application, reduced setbacks are requested:
(a) from the northerly rear yard and westerly side yard at 14
feet and 24+- feet, respectively for the 13' by 27' foundation
of the proposed accessory storage building, and (b) from the
northerly rear yard at 39+- feet and from the westerly side yard
at 21+- feet for the foundation of the proposed monopole tower
Page 2 Appl. No. 4058
Matter of NYNEX MOBILE COMMUNICATIONS
Decision Rendered November 21, 1991
structure, all as more particularly shown on ma~..~f' p~o~s~
site plan and details prepared by Richard E. ~a~.~, ~.~i.~ ~
July 31, 1991.
4. The subject premises is located in
(LI) Zone District, and the setbacks applica~
principal use structure at 70 from the rear
for the side yard.
5. The following documentation and si~l~
are noted for reference and consideration:
(a) an existing tree (screening)
or very near the northerly and southerly li,w~ ~ t~
property; pine-tree screening must be locaT~
westerly property line, as shown on the sits ~a~m~z~
(b) also proposed is a stockade £a~¢~ ~on~
northerly and easterly sections of the
storage building;
(c) Certificates of Occupancy ha~-e~foun~ o~f
record for the existing uses as follows: (~)> ~/2~ ~u~ G~
September 13, 1988 for the electric shop/~-~3~ e~ ~~
Junge; (2) ~Z18981 issued on April 23, 1~ ~ ~ wkm~e~f~
bakery and for Local Talent, Inc. in the e~r2s~m~.
light-industrial building;
(d) the proposed equipment stora~
structure will be unmanned, not requiring
for additional on-site personal or any incre~as~
customers related to the establishment of
use;
(e) other site plan elements ar~
conditioned by the Planning Board under it~
pending site plan application (see PB lett~--~
(f) New York SMSA Limited Part~er~a~r~N~N~f~
furnished information for the record conce~
as a public utility to provide cellular
serving to its full extent the public inte_~r-s~.~,~
necessary as per written consent and orde~
N.Y.S. Public Service Commission, Federal
Commission, etc., which includes limitati~
Radiated Power for mobile transmitters up
power for mobile transmitters up to 60 wa~so~
permitted to be assigned or transferred t~,
company, or corporation without the
Commission; and it is understood that upc~
of this applicant or owner(s) to transfer
Page 3 - Appl. No. 4058
Matter of NYNEX Mobile Communications/Junge
Decision Rendered November 21, 1991
authorization, subsequent application to this Board must be
filed for consideration.
6. Other relevant technical information considered in this
project are also noted below for the record:
(a) cellular communication systems must operate
through a network of cell sites, the first for this applicant in
the Town of Southold at the subject premises in Cutchogue.
{b) this cell site has two principal components, a
12' by 26 ft. (13' by 27' foundation) structure for computer
equipment storage, and transmitting/receiving antenna-tower
structure, both of which are incidental and necessary to operate
a wire line telephone communications use. The top of the tower
is 12 ft. equilateral triangle, 40 inches high, 36 inches at the
base and 18 inches at the top. There would be two whip
antennas that are 10 ft. above that, and one below.
(c) the tower and building are monitored seven days a
week, 24 hours per day per FCC mandates, although it is unmanned
physically at the site.
(d) the tower and antenna are solely for use by this
applicant/public utility and will not be rented or leased to any
other corporation, person, firm or company. Also, it is
expressly understood that no new cell, or expansion will be
established, unless further application and approvals by this
board and the regulating commissions, on this site in order that
appropriate criteria may be evaluated, including engineering
data relative to wind pressures, wind loads and other safety
considerations for such future utility expansion;
(e) the design of the tower and antenna submitted is
not a steel lattice design; this monopole structure must,
however, be designed to withstand continuous wind loads in
excess of 150 mph and wind peaks of 190 mph or more
(sufficiently mounted with wires and brackets capable to suppor~
these pressures).
7. This date, a Special Exception was conditionally
approved by this Board concerning the applicant's request under
Article XIII, Section 100-130 of the Light Industrial (LI) and
Light Industrial-Office (LIO) Zoning Provisions for
authorization to establish a telecommunications use by a public
utility.
Page 4 - Appl. No. 4058
Matter of NYNEX MOBILE COFg~/NICATIONS
Decision Rendered November 21, 1991
8. In considering this application, the Board also finds
that the relief requested:
(a) will not be adverse to the essential character of
the neighborhood and is the minimum necessary to afford relief
under the circumstances;
(b) will not in turn be adverse to the safety,
health, welfare, comfort, convenience or order of the town, or
be adverse to neighboring properties;
(c) will not increase dwelling unit density or cause
a substantial effect on available governmental facilities;
(d) cannot be obviated by another method feasible to
appellant to pursue, other than a variance
(e) is uniquely related to the property and is not
personal in nature;
(f) in considering all of the above factors, the
interests of justice will be served by granting the variance,
conditionally noted below.
as
Accordingly, on motion by Mr. Goehringer, seconded by
Mr. Grigonis, it was
RESOLVED, to GRANT relief for the reduced setbacks
requested and noted above on the first page, paragraph ~3, in
the Matter of the Application of NYNEX MOBILE COMMUNICATIONS,
SUBJECT TO THE FOLLOWING CONDITIONS:
RESOLVED, that the application for a Special Exception for
the establishment of a public utility for the construction of a
cellular telephone communications tower and accessory
equipment-storage building as applied under Appl. NO. 4062 in
the Matter of NYNEX/ARTHUR V. JUNGE, INC., BE AND HEREBY IS
APPROVED, SUBJECT TO THE FOLLOWING CONDITIONS:
1. No excessive (disturbing) noise levels;
2. No expansion or additional construction (with the
exception of emergency, fire or police necessities which serve
the safety, health, welfare, comfort, convenience and order to
the town), unless further application and approvals are
obtained, and for which engineering certifications will be
required concerning increased loads, winds pressures and other
safety considerations for such expansion;
3. No microwave dishes, as agreed by the applicants (none
of which are proposed during the consideration of this
application);
Page 5 - Appl. No. 4058
Matter of NYNEX Mobile Communications/Junge
Decision Rendered November 21, 1991
application);
4. No disturbing emissions of electrical discharges,
light, vibration or noise, or harmful distribution levels of
radiation, as agreed.
5. The setbacks shall be not less than that applied for
and shown on the plan dated October 18, 1991 (Drawing No.
92-8012) prepared by Richard E. Tangel, P.E., from the northerly
property line.
VOTE OF THE BOARD: AYES: MESSRS. GOEHRINGER, GRIGONIS,
DOYEN AND VILLA. (MEMBER DINIZIO ABSTAINED FROM DISCUSSIONS
FROM VOTE). This resolution was duly adopted.
lk
GERARD P. GOEHRINGER, CHAIRMAN
SCOTT L. HARRIS
SUPERVISOR
FAX (516) 765 - 1823
TELEPHONE (516) 765 - 1800
BOARD OF APPEALS:
Gerard P. Goehringer
Chairman
765-1809
OFFICE OF THE BOARD OF APPEALS
TOWN OF SOUTHOLD
ACTION OF THE BOARD OF APPEALS
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
Appeal No. 4058:
NYNEX MOBILE COMMUNICATIONS/ARTHURV. JUNGE, INC.
Variance to the Zoning Ordinance, Article XIV, Section 100-142
for permission to construct monopole radio tower and accessory
equipment-storage building with insufficient side and rear yard
setbacks. Zone District: Light Industrial (LI). Location of
Property: 21855 County Road 48, Cutchogue, NY; County Tax Map
Parcel No. 1000-96-1-19.1.
WHEREAS, after due notice, a public hearing was held on
October 24, 1991, and at said hearing all those who desired to
be heard were heard and their testimony recorded; and
WHEREAS, the Board has carefully considered all testimony
and documentation submitted concerning this application; and
WHEREAS, the Board Members have personally viewed and are
familiar with the premises in question, its present zoning, and
the surrounding areas; and
WHEREAS, the Board made the following findings~ fact:
1. The premises in question is located in the Light
Industrial (LI) Zone District in the Hamlet of Cutchogue, Town
of Southold, and is more particularly identified as County Tax
Map District 1000, Section 96, Block 1, Lot 19.1.
2. The subject premises consists of a total area of 1.04
acres (or 45,598 sq. ft.) with a frontage of 168 feet along the'
north side of County Route 48 and a lot depth of 252+- feet.
This parcel is improved with an existing building and uses which
were the subject of a conditional approval by the Board of
Appeals under Appl. No. 3835 rendered April 27, 1989 and Appl.
No. 3705 rendered March 3, 1988 {Arthur L. Junge, Inc.), as well
as site plan approval by the Southold Town Planning Board.
3. By this application, reduced setbacks are requested:
(a) from the northerly rear yard and westerly side yard at 14
feet and 24+- feet, respectively for the 13' by 27' foundation
of the proposed accessory storage building, and (b) from the
northerly rear yard at 39+- feet and from the westerly side yard
at 21+- feet for the foundation of the proposed monopole tower
Page 2 - Appl. No. 4058
Matter of NYNEX MOBILE COMMUNICATIONS
Decision Rendered November 21, 1991
structure, all as more particularly shown on ma~f~ D~t~o~
site plan and details prepared by Richard E. ~az~/~ ~.~ ~
July 31, 1991.
4. The subject premises is located in
(LI) Zone District, and the setbacks applica~
principal use structure at 70 from the rear
for the side yard.
5. The following documentation and si~<~
are noted for reference and consideration:
(a) an existing tree (screening) ~a~ h~ ~k~wz~.a~c,~
or very near the northerly and southerly li~a~
property; pine-tree screening must be
westerly property line, as shown on the sit~ ~a~i ma~;?
(b) also proposed is a stockade £~¢m~ m~n~ ~h~
northerly and easterly sections of the proD~ e~pme~.
storage building;
(c) Certificates of Occupancy ha~ ~ foum~ o~
record for the existing uses as follows: ~ ~ILT29~ Ji~sum~ ~
September 13, 1988 for the electric shop/bu~i~u~
Junge; (2) ~Z18981 issued on April 23, 1~
bakery and for Local Talent, Inc. in the ex~s~n~
light-industrial building;
(d) the proposed equipment stora~
structure will be unmanned, not requiring
for additional on-site personal or any inczm~sm
customers related to the establishment of
use;
(e) other site plan elements are~ ~ b~ 9~s~as~
conditioned by the Planning Board under it~ Si/lU~v~a~
pending site plan application {see PB lettev'o~ ]]~q;~,'~3~
(f) New York SMSA Limited Part~-~l~di~a~N~NHb~.
furnished information for the record conceIz~
as a public utility to provide cellular ra~i~
serving to its full extent the public inteE~,~
necessary as per written consent and order au~z~r]zze~
N.Y.S. Public Service Commission, Federal
Commission, etc., which includes limitati~
Radiated Power for mobile transmitters up ~ ~ wa~-~,~
power for mobile transmitters up to 60 wati~.~
permitted to be assigned or transferred t~a~J~gmn~mn,,
company, or corporation without the writt~<caae~
Commission; and it is understood that upc~a~m~F~I~m~sa~.
of this applicant or owner(s) to transfer
Page 3 - Appl. No. 4058
Matter of NYNEX Mobile Communications/Junge
Decision Rendered November 21, 1991
authorization, subsequent application to this Board must be
filed for consideration.
6. Other relevant technical information considered in this
project are also noted below for the record:
(a) cellular communication systems must operate
through a network of cell sites, the first for this applicant in
the Town of Southold at the subject premises in Cutchogue.
(b) this cell site has two principal components, a
12' by 26 ft. (13' by 27' foundation) structure for computer
equipment storage, and transmitting/receiving antenna-tower
structure, both of which are incidental and necessary to operate
a wire line telephone communications use. The top of the tower
is 12 ft. equilateral triangle, 40 inches high, 36 inches at the
base and 18 inches at the top. There would be two whip
antennas that are 10 ft. above that, and one below.
(c) the tower and building are monitored seven days a
week, 24 hours per day per FCC mandates, although it is unmanned
physically at the site.
(d) the tower and antenna are solely for use by this
applicant/public utility and will not be rented or leased to any
other corporation, person, firm or company. Also, it is
expressly understood that no new cell, or expansion will be
established, unless further application and approvals by this
board and the regulating commissions, on this site in order that
appropriate criteria may be evaluated, including engineering
data relative to wind pressures, wind loads and other safety
considerations for such future utility expansion;
(e) the design of the tower and antenna submitted is
not a steel lattice design; this monopole structure must,
however, be designed to withstand continuous wind loads in
excess of 150 mph and wind peaks of 190 mph or more
(sufficiently mounted with wires and brackets capable to suppor%
these pressures).
7. This date, a Special Exception was conditionally
approved by this Board concerning the applicant's request under
Article XIII, Section 100-130 of the Light Industrial (LI) and
Light Industrial-Office (LIO) Zoning Provisions for
authorization to establish a telecommunications use by a public
utility.
Page 4 - Appl. No. 4058
Matter of NYNEX MOBILE COM/~UlqICATIONS
Decision Rendered November 21, 1991
8. In considering this application, the Board also finds
that the relief requested:
(a) will not be adverse to the'essential character of
the neighborhood and is the minimum necessary to afford relief
under the circumstances;
(b) will not in turn be adverse to the safety,
health, welfare, comfort, convenience or order of the town, or
be adverse to neighboring properties;
(c) will not increase dwelling unit density or cause
a substantial effect on available governmental facilities;
(d) cannot be obviated by another method feasible to
appellant to pursue, other than a variance
(e) is uniquely related to the property and is not
personal in nature;
(f) in considering all of the above factors, the
interests of justice will be served by granting the variance,
conditionally noted below.
as
Accordingly, on motion by Mr. Goehringer, seconded by
Mr. Grigonis, it was
RESOLVED, to GRANT relief ~or the reduced setbacks
requested and noted above on the first page, paragraph ~3, in
the Matter of the Application of NYNEX MOBILE COMMUNICATIONS,
SUBJECT TO THE FOLLOWING CONDITIONS:
RESOLVED, that the application for a Special Exception for
the establishment of a public utility for the construction of a
cellular telephone communications tower and accessory
equipment-storage building as applied under Appl. No.. 4062 in
the Matter of NYNEX/ARTHUR V. JUNGE, INC., BE AND HEREBY IS
APPROVED, SUBJECT TO THE FOLLOWING CONDITIONS:
1. No excessive (disturbing) noise levels;
2. NO expansion or additional construction (with the
exception of emergency, fire or police necessities which serve
the safety, health, welfare, comfort, convenience and order to
the town), unless further application and approvals are
obtained, and for which engineering certifications will be
required concerning increased loads, winds pressures and other
safety considerations for such expansion;
3. No microwave dishes, as agreed by the applicants
of which are proposed during the consideration of this
application);
(none
Page 5 - Appl. No. 4058
Matter of NYNEX Mobile Communications/Junge
Decision Rendered November 21, 1991
application);
4. No disturbing emissions of electrical discharges,
light, vibration or noise, or harmful distribution levels of
radiation, as agreed.
5. The setbacks shall be not less than that applied for
and shown on the plan dated October 18, 1991 (Drawing No.
92-8012) prepared by Richard E. Tangel, P.E., from the northerly
property line.
VOTE OF THE BOARD: AYES: MESSRS. GOEHRINGER, GRIGONIS,
DOYEN AND VILLA. (MEMBER DINIZIO ABSTAINED FROM DISCUSSIONS AND
FROM VOTE). This resolution was duly adopted.
lk
GERARD P. GOEHRINGER, CHAIRMAN
PLANNING BOARD MEMBERS
Bennett Orlowski, Jr., Chairman
George Ritchie Latham. Jr.
Richard G. Ward
Mark S. McDonald
Kenneth L. Edwards
Telephone (516) 765-1938
PLANNING BOARD OFFICE
TOWN OF SOUTHOLD
Marie Ongioni, Attorney at Law
218 Front Street
Greenport, New York 11944
February 25, 1992
SCOWF L. HARR1S
Supervisor
Town Hall, 53095 Main Road
P.O. Box 1179
Southold. New York 11971
Fax (516) 765-1823
Re: Amendment to Site plan of
Arthur V. Junge, Inc. for
NYNEX Mobile Communications
N/s CR 48
Cutchogue, New York
SCTM 1000-96-1-19
Dear Ms. Ongioni:
The following resolution was adopted by the Southold Town
Planning Board at a meeting held on Monday, Februay 24, 1992.
BE IT RESOLVED That the Southold Town Planning Board,
acting under the State Environmental Quality Review Act, as the
lead agency makes a determination of non-significance and grants
a Negative Declaration for the amended site plan of Arthur V.
Junge Inc. for NYNEX Mobile Communications, last revised on July
31, 1991, signed by Richard E. Tangel, Licensed Engineer, and
received in this office on September 13, 1991.
A copy of the Negative Declaration is enclosed for your
records.
Please submit a copy of the site plan with Health
Department approval (or waiver)so that we may proceed with your
site plan.
Sincerely,
Bennett Orlowski, Jr.
Chairman
PLANNING BOARD MEMBERS
Bennett Orlowski, Jr., Chairman
George Ritchie Latham, Jr.
Richard G. Ward
Mark S. McDonald
Kenneth L. Edwards
Telephone (516) 765-1938
PLANNING BOARD OFFICE
TOWN OF SOUTHOLD
SCOTT L. HARRIS
Supervisor
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
Fax (516) 765-1823
State Environmental Quality Review
NEGATIVE DECLARATION
Notice of Determination of Non-Significance
February 24, 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 Law.
The Southold Town Planning Board, 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:
Amended Site Plan of Arthur V. Junge Inc.
{Industrial Building) for
NYNEX Mobile Communications Co.
SCTM%: 1000-96-1-19
Location:
North side of CR 48, approximately 750'
west of Cox's Lane, Cutchogue, New York
SEQR Status: Type I ( )
Unlisted (x)
Conditioned Negative Declaration: Yes { )
No (x)
Page 2.
Negative Declaration
Southold Planning Board
Description of Action:
To construct a monopole one hundred (100') in height,
for the purpose of installing a cellular communications
transmitter; and to construct an unmanned, pre-fabricated
accessory service building whose dimensions will be 12' by
26' This communications facility will inhabit the same
premises as an existing industrial building that is 110' by
40' in size.
Reasons Supporting This Determination:
No correspondence has been received from the New York
State Department of Environmental Conservation's
Stony Brook office. Therefore, it is assumed that there
are no comments or objections from that agency.
No correspondence has been received from the
Department of Health Services. Therefore, it is assumed
that there are no comments or objections from that
agency.
No correspondence has been received from the Southold
Town Zoning Board of Appeals. Therefore, it is assumed
that there are no comments or objections from that agency.
It should be noted that the Zoning Board has issued
variances for reduction in the rear and side yard setbacks
and for an increase in the maximum allowed height for the
tower, and has issued a Special Exception for the public
utility use.
The Planning Board finds that the potential environmental
impacts of the proposed construction are not significant.
(The potential impacts of the proposed project also were
reviewed by our environmental consultant in a report dated
February 3, 1992. This report has been considered by this
Board in making this determination of a Negative
Declaration.) The Board's findings are supported by the
following information.
1. The site lies within a large Light Industrial
zone, and is adjacent to the Town's landfill. The
proposed use is approriate to this zoning district.
2. While there are two non-conforming residential
dwellings to the west of the site, the view of the new
building and tower will be partially screened by
additional landscaping that will be planted to the
west of the monopole.
3. Since the site will be unmanned, there will be no
noticeable increase in vehicular traffic to and from
the site as a whole.
Page 3.
Negative Declaration Southold Town Planning Board
4. The anticipated radio emissions from the antennae
appear to be within the Radiation Hazard Standards of
the Occupational Safety and Health Administration
(OSHA) and the American National Standards Institute
( ANSI ).
For Further Information:
Contact Person:
Valerie Scopaz
Address:
Southold Town Planning Board
P.O. Box 1179,
Southold, N.Y. 11952
Telephone Number: (516) 765-1938
CC:
Suffolk County Department of Health Services
Commissioner Jorling, NYSDEC, Albany
.Judith Terry, Town Clerk
Southold Town Building Department
Southold Town Zoning Board of Appeals /
Cramer, Voorhis & Associates, Inc.
Applicant: NYNEX Mobile Co~,,,unications c/o Ongioni
Property Owner: Arthur Junge
PAGE 8 - Appl. No. 4058 and 4062
NYNEX MOBILE COMMUNICATIONS/ARTHUR V. JUNGE,
Hearing Transcript of October 24, 1991
INC.
The Hearing opened at 7:52 p.m.
The Chairman read the legal notice for the ~'~cord and application
before receiving testimony.
CHAIRMAN: We are opening both hearings up in concert of each other.
I have a copy of the site plan, several maps, most of which are most re-
cently dated in front of us indicating the exact placement of these
two structures which are to the rear of the existing and I will refer
to it as a commercial building which houses several uses on County Road
48 , approximately two parcels east of the landfill and the rear of
which abuts the landfill belonging to the Town of Southold. I have a
copy of the Suffolk County Tax Map indicating this and surrounding
properties in the area. Who would like to be heard? Ms. Ongioni.
MEMBER DINIZIO: At this time I would like to state that
a company that may compete with your business or perhaps
partner so as not to compromise the Board's decision, I
abstain and leave the room.
I work for
even be a
am going to
MS. ONGIONI: Good evening Chairperson Goehringer and Board members.
I'm Marie Ongioni with offices at 218 Front Street in Greenport. I
represent NYNEX Communication in this application for approval of the
variance application before the Board for the sideyard setback and also
the rearyard setback. In addition, we are before the Board for a
determination as to the requirement of this being categorized as a
Special Exception as permitted in the Code or if the project would
be exempt from the Special Exception because it qualifies as a
telephone exchange. If it does qualify as a public utili~ty structure
and it has the public utility licensing from New York State and all
of that has been submitted to the Board, }t is our contention that
this is, in addition to a publi~~ utility structure;it is a telephone
exchange and as such it is a permitted use in the' L~ district, rather
than permitted as a Special Exception. I have a representative from
NYNEX who will address the Board as to the definition of the telephone
exchange in the industry and the fact, in his opinion, this does indeed
qualify as a tslephone exchange. If the Board concludes that it is
a telephone exchange then it will be a permitted use as Special
Exception rule would not be needed. Otherwise, in the alternative,
I would argue to the Board that it qualifies as a Special Exception and
should be given that status. Before I turn over the presentation to
Mr. Sam Ajaeb of NYNEX I have a memorandum which I would like to
submit to the Board. I'm not going to review the memo in detail with
you, I'm submitting it for the record. It outlines the nature of the
variances that are being requested. It covers the legal case law that
supports the granting of this variance and also, it briefly outlines
the distinction between telephone exchange and Special Exception.
CHAIRMAN: Thank you.
Page 9 Appl. Nos. 4058 and 4062
NYNEX MOBILE COMMUNICATIONS/ARTHUR V. JUNGE,
Hearing Transcript of October 24, 1991
INC.
MS. ONGIONI: Does the Board have any questions of me at this time?
CHAIRMAN: Well, we ask the same question when Mobile One came before
u~ in Mattituck. I don't mean to be ignorant concerning this but
I asked the question at that time and I believe Mr. Smith was repre-
senting Mobile One, what is the different functionsof the two companies
and I don't know if you can answer that question. My question is
basically, are you both in competition with each other, is there
any unanimity between the two.of you.
MS. ONGIONI: I think Mr. Ajaeb ~'ould be the proper person to answer
that. Mr. Ajaeb of NYNEX.
CHAIRMAN: How do you do sir.
MR. AJAEB: Sam Ajaeb, Manager Real Estate NYNEX Mobile. Chairman,
to answer your question. At the time of divesture, it was intended v~
by the Justice Department and the FCC to allow ~the ~blic the ..... -
choice of a telephone company in a non-telephone company referred to
as a non-wi~e }j'neito p~6~}de cellular service. NYNEX is the wire
line telephone company. Metro One, they are now known as Cellular ONe
is the non-wire line. There are two choices. We are in the same W
business, two different companies.
CHAIRMAN: So in other words, Metro One would be using NYNEX wires.
MR. AJAEB: New YOrk Telephone, yes. In other words, New YOrk and
also long distance carriers, possibly AT & T, Sprint or whatever.
CHAIRMAN: That answers my question. Thank you.
MR. AJAEB: I just wanted to give a brief overview. I think the
Board has an understanding of who we are. We are t~e cellular
subsidiary of NYNEX. New YOrk Telephone is the major subsidiary of
NYNEX. What we intend to do here is we are expanding our cellular
network to eastern Long Island. This would be a cellular base station,
one of about 130 that are in operation now in the metropolitan area,
approximately 30 of these base stations are in operation now on Long
Island. They consist of a 12 x 26 building with grade storing radio
equipment and 100' monolithic t'ower. The monolithic to~e~annot be climbed,
it will withstand winds in excess of 150 miles per hour which we have
substantiated by the manufacturer. If we have to get to the top we
use a cart. We require 200 amps of service, no other utility. There
is no water. We use batteries for backup. The only utility requires
telephone and electric power. The question of Exchange if I can and
briefly in layma~s terms, and if you require more details we do have
with us. But with the base station is we have a central static__.,_
or computer in Garden City, Long Islandthat monitors the signal for ~
Page 10 - Appl. Nos. 4058 and 4062
NYNEX MOBILE COMMUNICATIONS/ARTHUR V. JUNGE,
Hearing Transcript of October 24, 1991
INC.
MR. AJAEB: continued
our subscribers. This station here, when someone is driving in the
area of Cutchogue, as soon as the signal from the proposed station
would be stronger than the signal from the station that the automobile
is in at that time, this call will then be automatically be switched
by our computer and processed to this base station. This base station
then picks up the call and processes the call so the immediate area
of Cutchogue I can now saysomewhere in the area of three to five miles
or possibly eight miles, The processing of their call would be done
by this base station in Cutchogue. The building would be alarmed,
there would be a fire deterrent system in there especially designed
so we would not have any problem with vandalism. If.there are any
other questions I would be glad to answer them.
CHAIRMAN: What does the top of the antenna look like.
MR. AJAEB: The top of the antenna is 12' equilateral triangle. Its
12' and 40" high. There would be two whip antennas that are 10' above
that, one below.
CHAIRMAN: Is there one around here we could look at.
MR. AJAEB: I believe there is. We have a number of them here you
could look at.
CHAIRMAN: There is one over at Grumann Aircraft in Calverton. Is
that a NYNEX or is that a Metro One?
MR. AJAEB: That is not a NYNEX. I can give you the dimensions to gi~e
you an idea. I~s 36" at the~base, 18" at the top with the equilateral
triangle at the top. It is designed that way for two reasons, one,
it cannot be climbed, we use an electric cart&for th6. wind resistance
for the structure. I can provide the Board with some locations if you
care to loOk at some.
CHAIRMAN: We would like to look at the closest one around here, if we could.
MEMBER VILLA: You said the range is five to eight miles.
MR. AJAEB: Depending upon the terrain. Somewhere in that area.
MEMBER VILLA:
miles.
That would mean you have another within five radius
MR. AJAEB: Yes, we have stations proposed in Greenport and Shelter
Island. If the Board wishes we have some computer runs.
Page 11 - Appl. Nos. 4058 and 4062
NYNEX MOBILE COMMUNICATIONS/ARTHUR V. JUNGE,
Hearing Transcript of October 24, 1991
INC.
MEMBER VILLA: My concern is how many of these are we going to
be looking at all together?
MR. AJAEB: I don't think you will anymore from NYNEX Mobile in
Cutchogue. The only reason we would have to Put more in would be
for volume or capacity and we don't anticipate. We would like
to see it but it is not anticipated that we would require anymore
monopoles in Cutchogue. I can pretty well substantiate that sir,
MEMBER VILLA: The thing is are you going to need these every eight
miles.
MR. AJAEB: I believe this would be out only...I ha've to verify
that if we have anymore in Southold. I'm not completely familiar
with the bounderies of Southold but Long Island and especially that
it is flat, the volume or capacity isn't required so I doubt if
there will be more. We can reply to that.
CHAIRMAN: What is the approximate cost of this project?
MR. AJAEB: The cost, are you talking construction costs. The f
building is a quality building that cost about $40,000. The monopole
is something like $60,000 and then we have a foundation , we have
soil tests done and the foundation is predicated on the soil. The
big expense to NYNEX is the radio equipmen~and that's hundreds of
thousands of dollars. I might mention too that we do monitor this
from Garden City seven days a week, 24 hours a day and though it is
unmanned, by monitoring it~which is mandated by the FCC, we guarantee
that we stay within our range and we can be sure that there will be
no interfer:~ce with anyone else, any other means of communications.
I will also offer at this time for any public or municipal use, if
the police require or ambulance squad, we will allow them to use it.
We will also take as a condition we have these antennas solely for NYNEX
use, we do not rent out tower space to anyone.
CHAIRMAN: Thank you.
[INDA FLETCHER: May I ask a question. I just wondered do people
who now have cellular phones are not able to use them, hear with them,
is that correct. They cannot use them, if they have them on in the car.
MR. AJAEB: That is correct. It is very spotty. We have one in the
company vehicle, very spotty. There is some service but it is very poor.
MS. ONGIONI: I'd like to address the Board on one additional point.
You requested an illustration of the fall down area of the pole which
we have submitted. You also requested the consent of the adjacent
property owners to that fall down area. I've submitted to the Board
Page 12 - Appl. Nos. 4058 and 4062
NYNEX MOBILE COMMUNICATIONS/ARTHUR V. JUNGE,
Hearing Tra script of October 24, 1991
INC.
MS. ONGIONI: continued
the consent of ARthur Junge who is the owner of the site, the
lessor to NYNEX. I also have the consent of Joseph Schoenstein
who is an adjacent property owner. I have met with the town
attorney and it was brought up to the Town Board on Tuesday and I
understand that they are going to be acting on it at its next meeting.
However, I do question the appropriateness of the request for the
consent of the neighboring property owners.
CHAIRMAN: Do you want me to answer that now? Marie, this started,
there is nothing we do that is mysterious but this started with
wind generating towers. Mr. Miller in Laurel had the first wind
gnenerating tower in the Town of Southold and of course it dominoed
throughout the process. We have had people who have put up all sorts
of towers for all sorts of things and what we more or less wanted
them to do is put them in the center of their property and basically,
their own fall down area. In this particular case, because you
are limited in reference to the size of the piece of property, that
is basically the reason why we ask the question, impose that before
the hearing because we wanted you to start working on it because
we knew you had at least two or three people that you had to talk to,
one of which is six people, that's the Town Board so that was basically
the reason.
MS. ONGIONI: I have a letter which I would like to submit regarding
the issue of consent and also the issue of whether those'property
owners would be restricting the use of their property. I do not
believe that it is even legal, constitutional to make that type of
request. In that regard I have a submission I would like to make but
I only have one copy. This is the letter and this Mr. Schoenstein's
consent. You have Mr. Junge's consent. In practicality and I have
attached as Exhibit 6 to the memo submitted earlier, a report prepared
by an expert in the field which indicates that it is virutally impossible
for this monopole to fall down. So the li~!~ood of that happening
is minimal at the most. That is Exhibit 6 on the memo. Does the
Board have any other questions. We have an application pending before
the Planning Board, the site plan we'll do. The site which they
refer to is the same site plan that was submitted to this Board
earlier this week. I think it is dated October 18, 1991 showing the
fall down area. Thank you.
CHAIRMAN: Is there anyone else who would like to speak in favor of
this application, anybody like to speak against it? My only question
of the engineer that might be present isis there any difficulty in
possibly noise or any type of filtering devices that would be required
of this particular unit. The problem with cablevision, the problem
with any communication that would be near this particular tower.
Pa~e 13 - Appl. Nos. 4058 and 4062
NYNEX MOBILE COMMUNICATIONS/ARTHUR V. JUNGE, INC.
Hearing Transcript of October 24, 1991
PHIL DDRANTE: My name is Phil Dorante. I work for NYNEX Mobile
also and I'm a radio frequency engineer. We operate 880 to 894
megahertz which is solely channel frequency the FCC has allocated
to us for cellular business. No one else operates in those fre-
quencies, just us. You can be rest assured that there will be no
interference to any other type of broadcasting station or tv or
what have you in the area.
CHAIRMAN: Is there any draw from the building at all with blowers
running or anything of that nature which would cause anybody a
discomfort.
PHIL DURANTE: The building that we use is a fire block building,
it is virtually soundproof.
CHAIRMAN: The system that either heats or air conditions that is a
compressor system on the exterior of the building.
PHIL DURANTE: It is on the exterior of the building.
CHAIRMAN: IT wouldn't be anymore than a normal compressor noise
that would come out of an air conditioning compressor that was placed
next to a house?
PHIL DURANTE: That is c.om~ect~
CHAIRMAN: We thank you very much sir. Any other further questions?
MEMBER VILLA: I'm just looking at your Exhibit 6 here which is the
engineering report and it alludes to the fact that the two 8' diameter
microwave dishes were not installed. Is there going to be two 8'
diameter microwave dishes?
PHIL DURANTE: I saw this for the first time. We're not microwave
and we don't intend to use microwave. There are no microwave dishes.
I believe the intent of that was that if you put microwave dishes that
it increases wind loading factor on the tower. We are not, I repeat,
not microwave and we are not going to put any microwave dishes on.
CHAIRMAN: Can we strike that from the agreement? I will initial it.
PHIL DURANTE: I imagine just determine that if there were microwave
dishes it affects the wind loading factor.
'Page 14 - Appl. Nos. 4058 and 4062
NYNEX MOBILE COMMUNICATIONS/ARTHUR V. JUNGE, INC.
Hearing Transcript of October 24, 1991
LINDA KOWALSKI, BOARD ASST: You're referring to Item #3.
PHIL DURANTE: Yes. In checking with our real estate people our closest
monopole is in Valley Stream, Long Island. However, I think if you want to
shorten the trip Rayndex has one in this area which is substantially similiar.
CHAIRMAN: That is the one I was referring to since I work in the Brookhaven
area.
PHIL DURANTE: I don't want to give them a plug.
CHAIRMAN: Let me just ask you a quick question before you sit down. When
you say it is spotty at this particular time where would you be drawing
from at this time? Would you be drawing from a Connecticut tower at]~his time
or are drawing from one on the south shore.
PHIL DURANTE: That is one of the problems we have. Again I can give you in
layma~s terms and our engineer would know more details. Our subscribers are
getting service or what we refer to as roaming service from SNET and what
happens if you are a subscriber roaming charges are more expensive and our
subscribers are disappointed that they have to pay the roaming charges. The
other thing, Our FCC license requires us at certain times tb provide service
along the area that we are licensed. Also, the fact that we are a public utility,
the Public Service Commission has issued the PCA, their complaints that go to
the Commission also saying that I subscribe to NYNEX why should I have to pay
roaming charges. So there are a number of factors. Naturally whe~ we were
building our system we had to logically do the core site before we came to
eastern Long Island.
CHAIRMAN: Anything else. No. Bob~ Not hearing any further questions I make
a motion closing the hearing and reserving decision until l~ter and we are
expecting a determination from the Planning Board and a determination from
the Town Board through the attorney. Although we are closing the hearing we
are waiting for those two decisions. So there will no decision on this
particular application until around the 20th of November and if for any reason
it is required for us to reopen the hearing, we will reopen it to take that
information and then close it back again. The decision on this particular
hearing will then be held up until early December. That's when we will be
making a determination. We thank you all from NYNEX for coming tonight.
It's been a pleasure meeting you all.
ALL IN FAVOR. AYE.
TOWN OF SOUTHOLD
ZONING BOARD OF APPEALS
In the Matter of the Application
of
NYNEX MOBILE COMMUNICATIONS,
for a Variance from
Article XIV, Section 100-142,
and/or,
for a Special Exception from
Article XIV, Section 100-141 B (1),
MEMORANDUM IN SUPPORT OF THE
APPLICATIONS OF NYNEX MOBILE COMMUNICATIONS
FOR A VARIANCE AND/OR SPECIAL EXCEPTION
POINT I
Site Backqround:
The property for which a variance and/or special exception is
sought is located at 21855 County Road 48, Cutchogue, New York,
more particularly designated on the Suffolk County Tax Map as
District 1000, Section 96, Block 1, Lot 19.1. The parcel is owned
by Arthur Junge and applicant, NYNEX Mobile Communications, is
before this Board as a lessee of a portion of Mr. Junge's property.
A copy of the lease is attached as Exhibit 1. Mr. Junge's consent
to the application and construction of the tower have been
previously provided to the Board.
The property was the subject of a decision by this Board in
December, 1987 a copy of which is attached hereto as Exhibit 2
(Application #3705). Mr. Junge's application at that time was a
request for a Special Exception to construct two buildings and
establish an electrical shop in the building The district in
which the property is located was at that time designated "C" Light
Industrial but is currently zoned Light Industrial. The property
was also the subject of a second decision by this Board rendered
in April, 1989 a copy of which is attached hereto as Exhibit 3
(Application #3835). At that time Mr. Junge sought an amendment'
to the Special Exception application to include establishment of
a car repair business at the site with outside storage and future
occupancy of the vacant building by a use permitted in the LI
district. A bakery was subsequently established in the building
and copies of the CO for the bakery and Mr. Junge's electrical
business were attached to the application filed with this Board.
A portion of the site has been leased to the applicant for
construction of a pre-fabricated communications building and
monopole to allow cellular phone transmission. An application for
site plan approval was filed simultaneously with the Planning Board
and is pending before them at this time.
The applicant filed a request for a building permit with the
Building Department which request was denied on the basis that the
proposed construction failed to meet both the side and rear yard
set back requirements and a variance from this Board was required.
Subsequently, the applicant was advised that the requested
construction also required a Special Exception from this Board and
that application has also been filed although it is contended by
this applicant and will be alternatively argued in Point IIIB of
this memorandum that the requested Special Exception is not
required as the monopole qualifies as a telephone exchange which
is a permitted use in LI.
This site was selected by the applicant because it is
presently utilized by commercial enterprises, is on a major roadway
into the area and is located in a district which permits both
telephone exchanges and public utilities. The blending of these
factors yields the least disruption to residential areas and is not
aesthetically out of character with the remainder of the parcel
while promoting the applicant's business endeavors which is to
provide services to the public.
POINT 11
Applicant and Use Backqround:
NYNEX Mobile Communications is
among other things, the business of
a public utility engaged in,
supplying radio cellular
3
telephone service to the public. NYNEX has authorization to
provide such service and is licensed by the FCC. Copies of proof
of this status and authorization have been previously supplied to
the Board.
A public utility is an organization that supplies such things
as water, electricity or telephone service, etc. to the public,
operated by a private corporation under a government franchise.
In New York, the courts have determined that public utilities are
monitored and regulated by the Public Service Commission.
The application filed with this Board indicates that applicant
seeks to construct, by use of a pre-fabricated structure, a
building to house its communications equipment and a monopole radio
tower to transmit signals.
Telephone communications have traditionally been conducted
over cables which have run the gamut from copper to fiber optics.
In 1982, the FCC began granting licenses for companies to build and
operate mobile telephone systems based on cellular radio
technology. While traditional systems ca__rry the electric impu!~es
over cables to telephone exchanges wit~ switching equipment, which
in turn transmit the call to the recipient instrument, a cellular
system utilizes radio signals to transmit and switch the call. In
a cellular system geographic area is divided into cells (usually
4
with a radius of 5 to 15 miles)
radio transmitter and receiver. As a phone
from cell to cell, the call is transferred
transmitter and receiver to another without
conversation. Cellular systems actually handle more calls
earlier systems that utilized high powered transmitters
receivers for a much larger geographic area.
Traditional systems utilize a system which includes a
telephone exchange or central office to which a telephone
each of which has a iow powered
equipped car travels
or switched from one
interruption of the
than
and
subscriber is connected by cable. That exchange is linked via a
trunk cable to other exchanges so that a call can be routed and
carried to its ultimate destination through switches located at
the exchange. The tower to be constructed by the applicant serves
the same basic function of switching or connecting a subscriber
and maintaining that call so that it will reach its destination.
The similarity and congruence of operation between a traditional
telephone exchange and a cellular radio tower is the basis for
applicant's contention and alternative request that the
construction does not require a Special Exception as telephone
exchanges are a permitted use in the LI district.
5
POINT ~
Requested Relief:
The building to be constructed will house communication~
equipmen~ and will be approximately 312 square feet. The equipment
does_ not require on site personne% and thus will not add traffic
nor automobiles to the existing roadway or premises. The equipment
is serviced by a maintenance crew who will visit the site
approximately once per month. The free standing monopole antenna
structure will be approximately 100 feet in height adjacent to the
equipment building. There will be cables and other connecting
links between the building and the monopole. A security fence
(chain link or comparable construction) may be constructed if
deemed necessary.
A. Set Back Variances
1. The proposed structures because of the existence of
the building and asphalt parking area have been located in the rear
of the lot at the northeast corner. Although the proposed location
meets the total side yard set back requirements (45') the side yard
set back on the east side of the property is approximatell_y_~_
rather than the required 20'. The rear set back is__.approximately
24' instead of the required 70'
6
The side yard set back is therefore 70% of what is required
necessitating a variance or reduction of 30% and the rear yard set
back is 34% of what is required necessitating a variance or
reduction of 66% in what is required under the applicable code
sections
The standard of review
and often cited Wachsberqer v.
in which the court set forth
Board of Appeals:
1. How substantial is
requirement?
for area variances is the well known
Michalis, 191 N.Y.S. 2d 621 (1959)
the matters to be considered by a
the variance in relation to the
2. What effect, if any, will the variance if granted have on
available governmental facilities?
3. Will the variance produce a substantial change in the
character of the neighborhood or be of a substantial detriment to
the adjoining properties?
4. Can the difficulty be obviated by some other means, other
than a variance?
5. In view o the manner in which the difficulty arose and
considering all of the above factors, will the interests of justice
be served by allowing the variance?
The requested relief, although a rather substantial deviation
from the requirement for only the rear yard set-back:
7
1. will not have an effect on available governmental
facilities,
2. does not produce a substantial change in the character of
the neighborhood or create a substantial detriment to adjoining
properties
3. has no other means of obviating the need for the variance
4. and justice would certainly be served by granting the
requested variances
The proponents of set-back requirements have urged the
aesthetic objectives as the primary objective of such requirements,
Goreb v. Fox, 274 U.S. 603 (1927). While the courts have stated
that health and safety cannot be ignored as an objective, (Wulfsohn
v. Burden, 241 N.Y. 288 (1925)) the relief requested by this
applicant does not offend either objective. This structure will
be located on a parcel zoned for light industrial use, which is
currently being utilized for that purpose. The structures are to
be located in the rear of the property, a short distance from the
Town landfill. In New York, set back requirements have been
upheld, largely because they allow light and air and decrease fire
hazards with improvement of appearances
VanAuken v. Kimme¥, 252 N.Y.S. 343 (1931).
present with the instant application, and,
to the granting of
a secondary benefit
These concerns are not
thus are not obstacles
a variance. The structures do not affect the
8
light, air or fire hazards to adjacent property.
The requested relief comes under the broad title of an "area"
variance [Fleminq v. Choate, 190 N.Y.S. 2d 741 (2d Dept. 1959)] and
as stated earlier is governed by the standard of "practical
difficulties". Wacksberqer v. Michalis, supra. Additionally, set-
back variances need not be submitted to the environmental quality
review process. 6 NYCRR 617.13 (1976).
The location of the structures was determined on the basis of
the existing structures, the prior approvals, the least disturbance
to the parcel and the best accessibility for service vehicles.
These factors which determined the location of the structures
create practical difficulties in complying with the code
regulations and thus a variance is sought. To locate the
structures otherwise would be to disturb the pre-existing parking
area and pre-existing approved parking spaces granted to the lot
owner by the Planning Board on May 9, 1988. As it stands now the
location of the structure has disturbed some of the parking spaces
and the applicant has been required to submit a second site plan
showing those spaces and their relocation. A copy of the new site
plan indicating the relocation of the affected parking spaces was
submitted previously to this Board as part of the plan indicating
the fall down radius of the tower.
The owner of the parcel clearly delineated his intention to
9
rent available space at his complex when he previously appeared
before both this Board and the Planning Board in order to foster
both his own business and those of his tenants. He has
subsequently been allowed to amend his s~cial exception in order
to proceed with those plans to bring additional businesses and
employment to the area. Applicant's use will more than meet the
objective of the parcel owner. In addition, it will bring a
service to the public at large which applicant supplies in its role
as a public utility. Thus, granting of the requested relief
insures that the owner will not suffer economic injury by depriving
him of the rental income, the health and safety of the adjacent
property will not be detrimentally affected and the applicant will
be able to meet its mandate to serve the public while engaging in
its regulated business.
B. Special Exception
Applicant asks this Board to consider the request for a
Special Exception as alternative relief, as applicant contends such
relief is not required. Article XIV, Section 100-141 B(1) allows
as a special exception in the L.I. district all those uses
permitted for the L.I.O. District pursuant to Article XIII, Section
1000-131 B(1) to (11). Subsection (4) of that Section permits
public utility structures and uses. Such uses are not defined in
the code but applicant isa public utility (see exhibits previously
10
supplied) and as defined earlier see page 3) its function is to
supply such things as water, electricity or telephone service, etc.
to the public. It logica~.~y ~o.~9~ therefore, th~_~t_~..~tru~t~e~_
or use by an established public utility which fosters that function
is a public utility structure and a use as envisioned by the code.
Article XXVI, Section 100-260 implicitly states what the case
law has determined, which is, that a special exception is a
permitted use in a given district, albeit one that requires some
additional scrutiny. It is especially significant to note the
difference between a special exception and a variance. A special
exception is a use expressly permitted by the zoning ordinance
while a variance is the authority to use the site in a manner
otherwise forbidden, Mobile Oil Corp. v. Oaks, 390 N.Y.S. 2d 276
(4th Dept. 1976); Goldstein v. Board of Zoninq Appeals, 113 Misc.
2d 756; 449 N.Y.S. 2d 910 (S/Ct. Nassau Co. 1982). The
significance of the difference is the standard to be applied. The
court has said it is error for a board of appeals to apply variance
standards to a request for a special exception, Rick v. Zoninq
Board of Appeals, 384 N.Y.S. 2d 862 (2d Dept. 1976).
It is usual for a zoning ordinance to empower a board to issue
a special exception after notice, hearing and findings. Such is
the case in Southold Town (Section 100-262). The standards to be
met are set forth in Section 100-263 (Exhibit 4).
In applying those standards, Section 100-264 sets forth the
matters to be considered (Exhibit 5).
The Board should note that with regard to the matters to be
considered and the relief requested by this application that:
1. the existing character and eventual development of the
uses in the district will not be adversely affected and this
district is peculiarly suitable to the requested use (100-264A).
2. the property values will not be affected and this is an
appropriate use for this land (100-264B).
3. the location of the structures at the rear of the parcel
on a parcel with already existing egress and ingress and which does
not require resident personnel will have no effect on vehicular
traffic (100-264C).
4. the use will not increase demand on public or private
services or facilities (100-264D) and will not produce gases,
odors, smoke or soot (100-264E) and will not cause disturbing
emissions of dust, light, vibrations or noise (100-264F).
5. there are no public parking or recreational facilities
within close proximity to be disturbed (100-264G) and parking is
already present at the site and the additional structures do not
require on-site personnel (100-264H).
6. the site already has accessibility for emergency vehicles
and the new structures do not create a hazard to life, limb or
12
property (Section 100-264I). With regard to the fall down radius
of the monopole, applicant has submitted sketches of the requested
radius of the area involved. Also applicant submits a report by
the manufacturer of the monopole that in 20 years of experience
they have no knowledge of the failure of such a monopole (Exhibit
6) and copies of the weather data indicating that the wind in this
area has not reached a velocity of potential danger to this
structure.
7. the plot is sufficient, appropriate and adequate for this
use and the new structures will not cause an overcrowding of the
land and do not add to the population of the area (no personnel
except for maintenance crews) (100-264J & K).
8. the parcel is not within proximity of a place of public
assembly and being in the L.I. district it is suitable for the use
requested. See decision of the Board dated July 25, 1991 in a
prior similar application bearing application No. 4022-SE (Metro
One) (100-264L & M).
9. the building on the parcel already screens the rear
portion from public view and provides a buffer area to adjacent
property (100-264N). The parcel has already made provision for
collection and disposal of stormwater run-off, sewage refuse and
other liquid, solid and gaseous waste and the new structures will
not alter or add to these items (100-264 0). See previously
13
approved and new site plans.
10. The proposed use will not disturb or disrupt any natural
features, the site already having been developed and the function
will not produce any emissions which could effect groundwater and
surface waters (100-264P).
Conclusion:
The set-back variance should be granted together with the
Special Exception if the Board finds that the structure does not
constitute a telephone exchange.
Respectfully submitted
MARIE ONGIONI
Attorney for Applicant
218 Front Street
P. O. Box 562
Greenport, N. Y. 11944
14
EXHIBIT 1
OPTION AND LEASE AGREEbiENT
This Agreement, made this ~ day of ~, 1991, between Arthur V.
Junge, having offices at 21855 Country Road, Cutchogue, New York 11935
(hereinafter referred to as Lessor), and New York SMSA Limited Partnership, a
Delaware limited partnership in which New York Cellular Geographic Service Area,
Inc., a subsidiary of NYNEX Mobile Communications Company, is tile General Partner,
having Its principal offices at 2000 Corporate Drive, Orangeburg, New York 10962
(hereinafter referred to as Tenant).
OPTION AGREEMENT
WHEREAS Lessor is the owner of certain real property located at 21855
Country Road, Cutchogue, New York; and
~{EREAS Tenant desires to obtain an option to lease ~ portion of said
real property for the purpose of constructing, maintaining and operating a mobile
communications facility, consisting of a prefabricated equipment building of
approximately 312 square feet to be installed by Tenant in the premises and one
free-standing monopole antenna structure approximately 100 feet in height, with a
right of way for access thereto, and the installation of wires, cables and neces-
sary connections between the equipment building and the monopole, all as substan-
tially shown on Exhibits "A" aud "B", attached hereto and made a part hereof.
NOW, TIIEREFORE, in consideration of tile sum of Five tlundred Dollars
($500.00), hereinafter referred to as the Option Money, paid by Tenant to Lessor
upon execution of this Agreement by both parties, Lessor grants to Tenant the
option to lease said property, including a right of way for access thereto, sevei]
days a week, twenty-four hours a day, for tha installation and maintenance of its
facility as herein described, for .the term and in accordance with the Lease
Agreement and its covenants and conditions set forth therein.
This option may be exercised at any tlme on or prior to November 15,
1991. The time during which the option may be exercised may be extended by Tenant
for six months through May 15, 1992, by Tenant giving Lessor written notice of
said extension not later than October 15, 1991, and the payment by Tenant to
Lessor of an additional Five Hundred Dollars ($500.00) Option Money. If during
the option period Lessor decides to sell the subject premises or make alterations
thereto, Lessor shall immediately notify Tenant in writing so that Tenant may take
steps necessary to protect Tenant's lnterest in the property. Any sale or altera-
tion, however, shall be subject and subordinate to the terms of this Agreement.
This Agreement may be sold, assigned or transferred at any time without
the consent of Lessor to a partnership or corporation having a general partner or
a shareholder, respectively, which is a subsidiary or affiliate of NYNEX Mobile
Communications Company. As to other parties, this Agreement may not be sold,
assigned or transferred without the written consent of Lessor, such consent not to
be unreasonably withheld or delayed.
Should Tenant fail to exerclse its option within the time herein
limited, all rights and privileges granted hereunder shall be deemed completely
surrendered, this option terminated, and Lessor shall retaln all Option Money, and
no additional money shall be payable by either party to the other. Should Tenant
exercise its option, no part of any Option Money shall be applied toward the rent.
Lessor shall grant Tenant, during the option period, free ingress and
egress to the premises to conduct engineering tests and other sctivittes of
similar nature as Tenant may deem necessary, at the sole cost of Tenant.
Lessor agrees to execute a Memormndum of Agreement, to be prepared by
Tenant, if requested by Tenant, which Memormndum of Agreement may be recorded by
-2-
Tenant at Tenant's expense.
This Agreemeut and the performance hereunder shall be governed, inter-
preted, construed and regulated by the laws of the State of New York.
If Tenant exercises the option, notice of such exercise shall be given
by Tenant to
Notice shall
the month following the giving of such notice,
become effective.
Lessor in writing by certified mail, return receipt requested.
be deemed effective on the date it is posted. On the first day of
the following Lease Agreement shall
This
Country Road,
New York SMSA
York Cellular
Communications
2000 Corporate
Tenant).
LEASE AGREEMENT
Agreement, made between Arthur V. Junge, having offices at 21855
Cutchogue, New York 11935 (hereinafter referred to as Lessor), and
Limited Partnership, a Delaware limited partnership in which New
Geographic Service Area, Inc., a subsidiary., of NYNEX Mobile
Company, is the General Partner, having its principal offices at
Drive, Orangeburg, New York 10962 (hereinafter referred to as
WITNESSETH:
1. Lessor hereby leases to Tenant that certain interior space and a
parcel of property located at premises designated 21855 Country Road, Cutchogue,
New York, with a right of way for access thereto, seven days a week, twenty-four
hours a day, all as substantially shown on Exhibits "A" and "B", attached hereto
and made a part hereof.
2. This Lease
beginning on the first
Agreement shall be for an initial term of five years,
day of the month following Tenant's giving of notice to
Lessor of its exercise of the option to lease these premises (hereinafter referred
-3-
to as the Commencement Date) at an annual rental of Twenty-Four Thousand Dollars
($24,000.00), to be pa~d In equal monthly installments of Two Thousand Dollars
($2,000.00) on the first day of the month, in advance, to Lessor or to such other
person~ firm or place as Lessor may, from time to time, designate in writing at
least thirty days in advance of any rental payment date.
While Tenant intends to make each payment due hereunder on or before its
due date, in the event Tenant falls to make a payment within ten days after its
due date Lessor will give Tenant written notice of such nonpayment and Tenant will
immediately make such payment. No action may be maintained by Lessor against
Tenant for such nonpayment unless Tenant has failed to make payment within ten
days after receipt of such written notice from Lessor.
3. Tenant shall have the option to extend th~s lease for three addi-
tional five year terms by giving the Lessor written notice of its intention to do
so at least six months prior to the end of the then current lease term.
4. The annual rental for each year of the first five year extension
term shall be Thirty Thousand Dollars ($30,000.00} payable in equal monthly
installments of Two Thousand Five Hundred Dollars ($2,500.00) on the first day of
each month; the annual rental for each year of the second five year extension term
shall be Thirty-Seven Thousand Five Hundred Dollars ($37,500.00) payable in equal
monthly installments of Three Thousand One Hundred Twenty-Five Dollars ($3,125.00)
on the first day of each month; and the annual rental for each year of the third
five year extension term shall be Forty-Six Thousand Eight Hundred Seventy-Five
Dollars ($46,875.00) payable In equal monthly installments of Three Thousand Nine
Hundred Slx Dollars Twenty-Five Cents ($3,906.25) on the first day of each month.
Agreement has
notice of an
If at the end of the third five year extension term this Lease
not been terminated by either party by giving'to the other written
intention to terminate it at least six months prior to the end of
-4-
such term,
conditions
terminated
this Lease Agreement shall contl~lue in force upon the same terms and
for a further term of one year and for annual terms thereafter until
by either party by giving to the other written notice of its intention
to so terminate at least six months prior to the end of such term. Monthly rental
for this period shall be equal to the rent paid for the last month of the third
five year extension term.
6. Tenant intends to use the premises for the purpose of constructing,
maintaining and operating a mobile communications facility and uses incidental
thereto, consisting of a prefabricated equipment building to be installed by
Tenant in Lessor's building, and one free-standing monopole antenna structure
approximately 100 feet in height, and all necessary connecting appurtenances, all
as aforesaid. A security fence consisting of chain link or comparable construc-
tion may be placed on the property if deemed necessary or advisable by Tenant.
Tenant may install electrical, air conditioning, sprinkler and other systems and
meters as may be necessary to maintain its equipment, and all costs of services
for same shall be borne by Tenant. All improvements shall be at Tenant's expense.
Tenant will maintain the property in a reasonable condition.
7. Lessor acknowledges that Tenant's ability to use the premises is
contingent
this Lease
provals that may be required by any federal, state and local authorities.
upon its obtaining, either before or after the Commencement Date of
Agreement, all of the certificates, permits, licenses and other ap-
Lessor
shall cooperate
take no action
respect to the
termines, in
governmental
certificate,
with Tenant
which would
proposed use
in its efforts to obtain such approvals and shall
adversely affect the status of the premises with
thereof by Tenant. In the event that Tenant de-
its sole judgment, that it will be unable to obtain all necessary
approvals, or if any of such applications should be rejected or any
permit, license or approval' issued to Tenant is subsequently can-
-5-
celled, expires, lapses or is otherwise witbdrawn or terminated by governmental
authority so that Tenant, in its exercise of reasonable judgment determines that
it will be unable to use the premises for its intended purposes, Tenant shall have
the right to terminate this Lease Agreement. Notice of Tenant's exercise of its
right to terminate shall be given to Lessor in writing by certified mail, return
receipt requested, and shall be effective upon mailing of such notice by Tenant
(the Termination Date). Ail rentals paid to the Termination Date shall be re-
tained by Lessor, but all rentals allocable on a pro rata basis to the period
subsequent to the Termination Date shall be refunded to Tenant. Upon such
termination this Lease Agreement shall become null and void and the parties shall
have no further obligation, including the payment of money, to each other, except
for Tenant's obligation pursuant to Paragraph 11 hereof.
8. Tenant shall indemnify and hold Lessor harmless against any claim
of liability or loss for personal injury or property damage ~esulting from or
arising out of the use and occupancy of the premises by Tenant, its servants or
agents, excepting, however, such claims or damages as may be due to or caused by
the acts of Lessor, its employees or agents.
9. Tenant shall provide Lessor with a certificate of insurance issued
by a reputable insurance company licensed to do business in the State of New York
indicating comprehensive general liability insurance in the amount of $1 million
for bodily injury and $1 million for property damage, and in which Lessor is named
as an additional insured with respect to the leased premises. Tenant will provide
Lessor with a renewal certificate when requested by Lessor.
10. Provided Tenant is not in default herennder and shall have paid all
rents and sums due and payable to Lessor by Tenant, Tenant shall have the right to
terminate this Lease Agreement upon the annual anniversary of the Commencement
Date of this Lease Agreement, provided that six months prior written notice is
-6-
given to Lessor.
11. Tenant, upon
reasonable period, remove
monopole antenna, security
termination of this l.ease Agreement, shall, wltbln a
its equipment building, personal property, equipment,
fence (if any), connections and other fixtures and
restore the premises to its original condition, reasonable wear and tear excepted.
12. Should Lessor, at any time during the term of this Lease Agreement,
decide to sell the leased premises or make alterations thereto which may adversely
affect Tenant's operation of its
immediately
subject and
mobile communications facility, Lessor shall
notify Tenant in writing. Any sale or alteration, however, shall be
subordinate to the terms of this Lease Agreement and Tenant's rights
hereunder, and Lessor shall do nothing which would interfere with the use of the
premises by Tenant in connection with its mobile communications operations.
13. Lessor covenants that Tenant, on paying the rent and performing tile
covenants, shall peaceably and quietly have, hold and enjoy the leased premises.
14. Lessor warrants and covenants that Lessor is seized of good and
sufficient title and interest to the subject premises and has full authority to
enter into and execute this Lease Agreement, and that there are no liens, judg-
ments or impediments of title which would adversely affect this Lease Agreement.
Any breach of these warranties aud covenants which preclude Tenant's use of said
premises for its intended purpose shall entitle Tenant to terminate this Lease
Agreement and receive back all monies paid hereunder.
15. In the event Tenant fails to comply with any of the provisions of
this l,ease Agreemeut or to perform aay of Jts obiJgatlons herenuder, ~nclud~ng the
rent, Lessor shall give Tenant written notice of such breach or non-
rent, and Tenant shall ]lave ten days after receipt of such written
Lessor to cure such default. No action may be maintained by Lessor
for such breach unless Tenant has failed to cure same witbln ten
payment of
payment of
notice from
against Tenant
-7-
days after receipt of such writtem notice.
16. This Lease Agreement oontains all the agreements, promises and
understandings between Lessor and Tenant, and no oral agreements, promises or
understandings shall be binding upon either Lessor or Tenant in any dispute,
controversy or proceeding at law. Any addition, variation or modification of this
Lease Agreement shall be void and ineffective unless made in a writing signed by
the parties.
17. This Lease Agreement and the performance thereunder shall be
interpreted, construed and regulated by the laws of the State of New
governed,
York.
18. This Lease Agreement may be sold, assigned or transferred at any
time without the consent of Lessor to a partnership or corporation having a
general partner or a shareholder, respectively, which is a subsidiary or affiliate
of NYNEX Mobile Communications Company. As to other parties, this Lease Agreement
may not be sold, assigned or transferred without the written consent of Lessor,
such consent not to be unreasonably withheld or delayed.
19. Ail notices hereunder must be in writing and shall be deemed
validly given if sent by certified mail, return receipt requested, addressed as
follows (or any other address that the party to be notified may have designated to
the sender by like notice):
Tenant:
Copy to:
New York SMSA Limited Partnership
2000 Corporate Drive
Orangeburg, New York 10962
Attn: Manager - Real Estate
Joseph A. tlallock, Esq.
Hallock & Amann
175 Fairfield Avenue, Suite IA
West Caldwell, New Jersey 07006
Mr. Arthur V. Junge
21855 Country Road
Cutchogue, New York 11935
-8-
20. This Lease Agreement shall inure to the benefit of and bind the
heirs, personal representatives, successors and assigns of the parties hereto.
any
part of
however,
in the
21. At Lessor's
future mortgage made
Lessor's property
option, this Lease Agreement shall be subordinated to
by Lessor which from time to time may encumber all or
of which the leased premises are a part; provided,
every such mortgage shall recognize the validity of this Lease Agreement
event of a foreclosure of Lessor's interest and also Tenant's right to
remain in occupancy of and have access to the leased premises as long as Tenant is
not in default under this Lease Agreement. Tenant shall execute whatever instru-
ments may reasonably be required to evidence this subordination provision.
In the event the leased premises are presently encumbered by a mortgage,
Lessor will obtain and furnish to Tenant a non-disturbance instrument for each
such mortgage in recordable form.
22. Lessor agrees to execute a Memorandum of Agreement to be prepared
by Tenant, if requested by Tenant, which Memorandum of Agreement may be recorded
by Tenant at Tenant's expense.
IN WITNESS WHEREOF, the parties hereto have set their hands and affixed
their respective seals the day and year first above written.
Witness:
Lessor:
Arthur V. Junge
Date: [~ -~ , 199l
Wltuess:
Tenant:
By:
New York SMSA Limited
Partnership
Noreen A. Conlon, Vice President
New York Cellular Geographic
Service Area, [uc.,
General Partner
Date:
1991
-9-
ACKNOWLEDGEMENT
STATE OF NEW YORK :
COUNTY O :
the
day of ~. , 199], before me came Arthur V. Junge, to me
known, who being dulyVsworn did acknowledge that he is the person named in the
within document, and that he executed said document as his voluntary act and deed
for the uses set forth therein.
SIJS~N J, NAGY
Nolay Public, $1ale of Naa' York
}1o. 4896735
Oualilie4 in SulloA Coun~f
STATE OF NEW YORK :
: SS
COUNTY OF ROCKLAND :
3/ ay
On the of I-T~ , ]99', before me came Noreen A. Conlon, to me
known, whom being duly sworn, did acknowled§e that she is Vice President of New
York Cellular Geographic Service Area, [nc., General Partner, described in and
which executed the fore§oin§ Instrument; that tile seal of the corporation is
affixed hereto; and that this document was signed and made By the corporation as
its voluntary act and deed by virtue of authority from its Board of Directors.
KATHERINE ZIMMERMAN
-10-
"EXHIBIT A"
Fenced Area
Monopole ~
12' x 26' Prefab
Equipment Shelter
PARKING AREA
JUNGEMECHANIC~CORPORA]ION
HEADQUARTERS
FRONT PARCEL
SOUr'ID AVENUE
( I::XIII I~,] T 13 }
AIA' 9212
100 ft. l'4onopole. -
I,IoL Lo ~c:dlc~
EXHIBIT 2
Id Town oar £ Appeals
$outho B d o
ACTION OF THE ZONING BOARD OF APPEALS
Appl. NO. 3705-5E
Application Dated December ]6, ]987
TO: Mr. Arthur V. Junge
6880 Nassau Point Road [Appellant(s)]
Cutch0gue, NY ]1935
At a Meeting of the Zoning Board of Appeals held on March 3, 1988,
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
IX] Request for Special Exception under the Zoning Ordinance
Article VII1 , Section ]00-80(8)
[ ] Request for Variance to the Zoning Ordinance
Article , Section
[ ] Request for
Application of ARTHUR V. JUNGE for a Special Exception to the Zoning
Ordinance, Article VIII, Section 1~0-80(B) for permission to establish
electrical shop use and construct two buildings located as shown on Site
P]an dated March 10, ]987, prepared by John A. Grammas & Assoc. Zone
District: C-Light Industrial. Location of Property: North Side of
C.R. 48, Cutchogue, NY; County Tax Map District lO00, Sectioo 96,
Block ], Lot 19, containing 45,589± sq. ft. in lot area.
WHEREAS, a public hearing was held and concluded on January 14,
1988 in the Matter of the Application of ARTHUR V. JUNGE under
Appl. No. 3705-SE; and
WHEREAS, at said hearing all those who desired to be heard
were heard and their testimony recorded; and
WHEREAS, the Board has carefully considered all testimony
and documentation submitted concerning this application, and
WHEREAS, the Board Members have personally viewed and are
familiar with the premises in question, its present zoning, and
the surrounding areas; and
WHEREAS, the Board made the following findings of fact:
]. The premises in question is a described parcel of land
containing a lot area of .975 of an acre, or 45,589 sq. ft. with
frontage (lot width) of 168.17 feet along the north side of C.R. 48,
in the Hamlet of Cutchogue, is vacant, and is more particu]ar]y
shown on the Suffolk County Tax Maps as District ]000, Section 96,
Block 1, Eot 19.
2. The subject premises is located in the "C" Light Industrial
Zoning District as approved by the Town Board at a Regular Meeting
held December 15, 198/, and is immediately adjacent to the Southo]d
Town Disposal Site at the north side. The premises immediately
adjoining this property along the west side is a parcel of 1.2,
acres improved with a single-family dwelling and along the east
side is a vacant parcel of 39,524 sq. ft., which has also received
a change of zone from "A" to "C" (Parcel 1000-96-1-20).
(CONTINUED ON PAGE TWO)
DATED: March 3, ]988. CRAIR~N, SOUTHOLD TOWN ZONING BOARD
OF APPEALS
Form ZB4 (rev. 12/81)
EXHIBIT 3
Southold Town Board £ 4ppeals
TELEPHONE (516) 765-1809
APPEALS BOARD FAX No. (516) 765-1823
MEMBERS
GERARD p. GOEHRINGER, CHAIRMAN
CHARLES GRIGONIS, JR.
SERGE DOYEN, JR.
JOSEPH H. SAWlCKI
,JAMES DINIZIO, JR.
ACTION OF THE BOARD OF APPEAT.~
Appl. No. 3835:
Matter of the Application of ARTHUR V. JUNGE, INC. -
Amendment to Special Exception Granted under Appl. No. 3705
under Article VIII, Section 100-80B of the prior Zoning
Regulations for this previously zoned C-Light Industrial Zone
District, now re-zoned to Light Industrial, Article XIV, Section
100-141, to include establishment of car repairs with outside
storage and future occupancy of vacant building area at easterly
side of building (said use to be a permitted use in this Zone
District). Location of Property: 22355 C.R. 48, Cutchogue,
NY; County Tax Map District 1000, Section 96, Block 1, Lot 19,
containing 45,589+- sq. ft. in lot area.
At a Meeting of the Zoning Board of Appeals held on
April 27, 1989, the following action was taken:
WHEREAS, a public hearing was held on April 13 1989, under
File No. 3835, filed March 10, 1989; and '
WHEREAS, at said hearing all those who desired to be heard
were heard and their testimony recorded; and
WHEREAS, the Board has carefully considered all testimony
and documentation submitted concerning this application; and
WHEREAS, the Board Members have personally viewed and are
familiar with the premises in question, its present zoning, and
the surrounding areas; and
WHEREAS, the Board made the following findings of fact:
1. By this application, applicant requests an Amendment to
Special Exception ApPlication No. 3705 to include establishment
of car repairs with outside storage and future occupancy of
vacant building (to be occupied with a use permitted in this
Light Industrial Zone District).
Southold Town Board of Appeals
-2- April 27,
1989 Special Meeting
(Appl. No. 3835 - ARTHUR V. JUNGE, INC. decision, continued:)
2. The property in question:
(a) contains a total lot area of 45,589 square feet
and lot width {frontage} along the north side of County Road 48
of 168.17 feet, in the Hamlet of Cutchogue;
(b) is identified on the Suffolk County Tax Maps as
District 1000, Section 96, Block 1, 19;
(c) is located in the Light Industrial Zone District,
as re-designated January 10, 1989 under the new Master Plan
revisions;
(d) is bound on the northerly side by the Southold
Town Landfill, on the west by a single-family dwelling now or
formerly of J. Harris Estate, and on the east by vacant land now
or formerly of Gray, all of which is also located in the Light
Industrial Zone District.
3. For the record, it is also noted that:
(a) an Use Variance was denied without prejudice
under Appeal No. 3635 on August 20, 1987, when the premises was
Zoned "A" Residential and Agricultural;
(b) a Change of Zone was granted by the Southold Town
Board on December 15, 1987, re-zoning the premises from "A"
Residential and Agricultural to "C-Light Industrial";
(c) a Special Exception for the construction and
occupancy of a 7,750 sq. ft. building was granted by the Board
of Appeals on March 3, 1988 under Appl. No. 3705;
(d) the occupants of the building on or about
January 1, 1989, are believed to be for the following uses: (1)
contractor's business and shop; (2) vehicle-repair business
and shop; (3) storage, parking and similar uses accessory and
incidental to the established principal uses.
2-- 4.~ By this application, the property owner re .
~prova~, as an amencUnent to the 1988 Special ~v~ts
pproval: ..... ~
(a) for the establishment of the vehicle repair
business and shop occupying approximately one-third of the floor
area of the existing building (at the center thereof) and for
/ $outhold Town Board of Appeals -3- April
27, 1989 Special Meeting
(Appl. No. 3835 -ARTHUR V. JUNGE, INC. decision, continued:)
approval of outside storage of licensed vehicles, parked while
under repair, with proper screening. The area of the proposed
vehicle parking (vehicles for repairs) is that area directly in
the rear yard, behind the building, with fencing and/or other
screening around the periphery of the rear yard, including that
area close to the northerly and easterly property lines, and
squared off to the northeasterly corner of the rear of the
building (if needed for reference, see subject storage area
depicted in red on Drawing No. P-la dated March 10, 1987,
submitted for consideration);
(b) for occupancy of Bay 93 at the easterly third
section of the building for a Special Exception use only as
permitted under the Light Industrial Zone District regulations.
It should be noted, however, that the Light Industrial (LI) Zone
District provides for certain uses already provided in other
zone districts listed on the previous pages of the Zoning Code
{such as the "LIO" Light-Industrial Office/Park, Section
100-131B{1-11}, "B" General Business, Section 100-101A{3-5} and
B{5,7,10}, which includes warehouses, building material storage
and sales, building contractors yards, cold storage plants,
etc.).
5. Additionally, it is noted that Article XIV, Section
100-141, Subsection B(1) permits by Special Exception and site
plan approval any special exception use set forth in and as
regulated by Section 100-131B(1-11) of the Light Industrial
Park/Planned Office Park Zone District. Subsection 100-131B{2}
thereof provides by special exception and site plan approval:
...Light industrial uses involving the fabrication,
reshaping, reworking, assembly or combining of products
from previously prepared materials and...Such uses may
include industrial operations such as electronic, machine
parts and small component assembly... "
It is the opinion of the Board that based on the precedents
concerning permitted light-industrial uses under the previous
zoning code, and the fact that the vehicle repairs will be minor
or include installation of (small) electronic or mechanic parts
into the vehicles, that the use is similar to other permitted
light industrial uses for the purposes of this Amendment and is
of the same or similar nature of a light-industrial use.
Southold Town Board of Appeals -4- April 27,
1989 Special Meeting
[Appl. No. 3835 - ARTHUR V. JUNGE, INC. decision, continued:)
6. In considering this application, the Board also has:
Ia) considered Section 100-262 [General Standards) and Section
263 (Consideration) of the zoning code; [b) determined the
use will not prevent the orderly and reasonable use of adjacent
properties or of properties in adjacent-use districts; (c)
determined the safety, health, welfare, comfort, convenience,
and order of the town will not be adversely affected by the
proposed use and its location; (d) determined that the use is
in harmony with and will promote the general purposes and intent
of zoning since this is a use which was permitted by special
exception application [with the exception of the formality of
requiring a written amendment to the Special Exception in effect
at the time of the filing of this application)
plan); (e) the applicant has had numerous applications before
the Boards, and due to the timeliness during the procedures was
not able to have the same finalized.
Accordingly, on motion by Mr. Dinizio, seconded by
Mr. Grigonis, it was
RESOLVED, to GRANT an Amendment to the Special Exception as
requested (under Application No. 3835) in the Matter of ARTHUR
V. JUNGE, INC., SUBJECT TO THE FOLLOWING CONDITIONS:
1. Vehicles stored outside of the building must be
licensed, in taxt, and located only in this screening-in
rearyard area;
2. Any extended storage area outside of the building will
require re-application for re-consideration by the Board of
Appeals;
3. The types of screening for the enclosure of the
proposed outside vehicle storage area shall be designated at the
discretion of the Planning Board under its site-plan regulations.
Vote of the Board: Ayes: Messrs. Goehringer, Grigonis,
Sawicki and Dinizio. [Absent, as agreed for this Special
Meeting, was: Member Doyen of Fishers Island.) This
resolution was duly adopted.
lk
GERARD p. GOEHRINGER, ~HAIRMAN
SOUTHOLD TOWN BOARD OF APPEALS
EXHIBIT 4
§ 100-263. General standards.
No special exception approval shall be granted m~lcs~ the U:oard
having jurisdiction there~f specifically finds and dcl~,rn,ln~ lbo
following:
A. That the use will not prevent the orderly and reasonable u~e o[
adjacent properties or of prol~rties in adjacent aze districts.
B. That the use will not prevent the orderly and ~'cmqonable use of
permit~d or legally esLablished uses in the district wherein
the pro~sed use ia ~ be loca~d or of permitWd or legally
established uses in adjacent nsc districkq.
C. That the safety, the health, the welfare, Iht comfort, the
convenience or the order of the ~wn will not be adversely
affected by the pro~aed use and ils location.
D. That the uae will be in harmony wi~h and promo~ the general
pure,es and in~nt of this chapWr.
E. That the n~e will be compatible with ils sm'roundin~ and with
H~e character of the neighborh~,~d and of the community i~
l~cnernl, particularly wilh regard ~ visibility, ~cnle :md overall
:tlq)caranec.
F. That :dl prl~l~l'd ~11-tl,.'llll'(,s. ~'~lllJlltlll'lll nnd I,:tlt,ri:d ~h:tll
readily accessible fi~r fire nmi l.>liee
EXHIBIT 5
§ 100-264. Matle~.'s to be eonshlered.
In mnkinff saeh delerminatlon, e~m.~hleralion ~hnll nl~o I~. ~iven.
amonff other thin~, to:
A. The charne~r ~f th~ ~xi~{in~ nmi l.'~bnble devel,~pn~t, nl nf
n~es in the d/strict nnd Ihe peculi:~r ~uitoGilily nf ~uch district
for the I~ration of any of such permitled
B. The conservation nf prnl~rty vnl~l{~ and the enconraffement
the m~t appropria~ u~ of land.
C. The effect that the I~ation of the prol~ed n~e nnd Ihe I~'atinn
that entrances and exits may have n~m the creation or umh~e
increase of vehicular traffic enn~e~tion on puhlie streeL~,
highways or sidewalk~ ~ ~snre the public s~fety.
D. The availability of mleq~a~ and prol~r lmhlie or private
wa~r supply ami faeilitles fi~r the treatment, removal nr
dlseharge of sewaffe, refnse or nther effluent (whether liquid,
~lid, g~smus or otherwise) that may I~ caned or erea~t by
or ~ a r~ult of the ~e.
E. Whether the use or the m~terinls inehlentnl thereto or
pr~lueed thereby may ffive off olmox~ot;~ ~, {xinu, smoke
or
II.
Whether the use will canoe distnrhin~ emissions of electrical
discharges, dust, light, vibruti.a nr noise.
Whether the operation in Itur~uane~, .f the t~s~, will cau.~e
undue in~rference with the orderly enjoymenl by the ptddic of
parking or of recreati~mal facilities, if exi~tinR' or if I}r~l.~sed
by the town or by other eoml~tent ~'overm~e~ltal agencies.
The neee~Rity for bitt;minon~-mlrfaeed ~lmee fl,' lUlrlx~e~ of
of Fstreet parking of vehicles incidenb~l to the ns. and whether
stleh space is terminably mleqna~ nnd aPlU'opri~le nnd cnn he
fl~rnished by the owner of the pl~l sough{ 1,~ be ~ed within
nd.jaee~t to the plot wherein lhe u~, sh:tll he I,~'nted.
§ 100-264 ,qOl. lTllOl,l) (~OI)E § 100-265
I. Whether a hazard to lire, limb or properly bromine of fire,
flood, erosion or panic may be eren~d h~ re:~n o~ or m~ ~
result of the uso or by the struchwos ~ he used (herefor nr by
~he inaccessibility of the pro~r~y or s(ruetures ther~n h~r ~he
convenient entry and o~ratlon of [ire and other emergency
~pparatus or by the undue concentration or ~embln~e of
~r~ns u~n such
J. Whe(her the u~ or the s~rue~uros te be used therefor will
eauso an overcrowding of land or tmdue eoncentratinn of
~pulation.
K. Whether the plot area is sufficient, ~pproprinte nnd adequate
for the uso and the re~nably anticlpa~d o~ration and
expansion ther~L
L. Whether ~he u~ ~ be ol~raWd is unro~nably near tn a
church, sch~l, thea~r, recreational area or other place of
public ~sombly.
M. Whether the si~ of ~he pro.ed uso is partieularly suitable
for such uso.
P.
Whether adequate buffer yards and sereeni,g can and will
provided to protect adjacent properti~ and land uses from
possible detrimental impacts of the proposod use.
Whether adequate provision eau and xvill be made fi)r the
collection and disposal of stermwater runoff, sewage, refuse
and other liquid, solid or g~se~)us wa.~te which the proposod use
will generate.
Whether the natural characteristics of the site are such that
the proposod use may be introduced there without undue
disturbance or disruption of impnrtaut natural features,
systems or processes and without risk or polh,tion to
groundwater and surface waters on and off the site.
October 22, 1991
Marie Ongioni
2818 Front St.
Greenport, NY
11944
Reference: 100' Monopole for Cutchogue, NY
EEI Job No. CSONY257
Dear Ms. Ongioni:
In response to your inquiry regarding the anticipated failure mode
of the structure on the above referenced project, I would like to
offer the following comments:
1) Failure of a steel monopole structure is defined as
being that point at which the induced stresses exceed the
yield strength of the material. At this point,
deflections will be induced in the structure which will
no longer be recoverable once the load has been removed.
2) The induced loads must be sustained for a long enough
period in order that the structure has time to respond
to the load without its removal. This particular
structure would have to exhibit deflections at the top
in excess of 5' (requiring sustained winds over 110 MPH).
3) Sustained wind loads of nearly 150 MPH applied over
the entire structure would be required to induce
structure yielding if the two 8' diameter microwave
dishes were not installed.
4) The supported antennas are most likely not capable
of enduring winds in excess of 120 MPH and when failed
will offer a smaller drag area.
5) When yielding does occur, it allows the structure to
continue to deflect under the induced loading with no
increase in load being required.
6) As this structure leans over from the induced loads,
it presents a markedly reduced exposure area for the
development of wind induced forces. This would result
in the lowering of the applied forces and, therefore, the
ENGINEERED ENDEAVORS, IN~
8500 Stotion Street * Suile 240 * Mentor, Ohio 44060
Telephone: (216) 974-6(160 , [elefax: (216) 974-9258
100~ HOnopole - Cubahogue~ NY
BB! ~ob No. CBON¥257
reduction of stresses and a halting of structure
movement.
7) In the event of structure failure, the resulting
failure mode will be that the structure will lean and,
upon the removal of the applied loads, will not return
to a vertical position. Wind induced loads could not
conceivably bring the structure to the ground.
8) In Power Structures, Inc.'s 20 years of experience
in the tapered tubular steel structure business, they
have never experienced nor been made aware of any such
structure failing under wind induced loadings.
9) The design and loading assumptions which are used for
the analysis of these structures is conservative in
nature and would, therefore, make any such structure
failure highly improbable.
I hope that these comments answer any questions which you might
have relative to the anticipated performance of this structure
type. However, I will be most happy to answer any other specific
questions which you may have.
Sincerely,
President
TJG/kg
cc: Marta Panasiuk, NYNEX
Sam Ajaeb, NYNEX
MARIE ONGIONI
ATTORNEY AT LAW
/ ? . ,,-
218 FRONT STREET. (~REENPORT. NEW YORK 11944
(5161 477'2048
FAX (5161 477-8919
October 24, 1991
Gerard P. Goehringer, Chairperson
Zoning Board of Appeals
Town Hall
53095 Main Road
P. O. Box 1179
Southold, New York 11971
Re: NYNEX Mobile Communications Applications
Dear Mr. Goehringer:
Please refer to previous correspondence with regard to the
above matter and in particular to your letter of October 15th and
my letters of October 16th and 21st.
As you know, on behalf of my client I have submitted a consent
to construction of the monopole and adjacent building by the
property owner who leased the site to my client (Arthur Junge).
I am attaching hereto a consent by an adjacent property owner,
Joseph Schoenstein. You will note that both are consents to
construction of the monopole but are not consents to restriction
on the use of the land of the respective owners as a result of
their consent to construction. With regard to the question of
consent I submit the following:
The monopole does not require a variance from the height
restrictions of the zoning code as it falls within the exceptions
mentioned in Section 100-230 of the code. Your Board has in fact
not required submission of a request for a variance with regard to
the height of the monopole. The monopole itself is a permitted use
within the LI district if the Board finds our contention that it
is a telephone exchange to be valid. In the alternative, the
monopole is a permitted use by special exception as a public
utility structure in the LI district. In either case it is a
"permitted" use as that term has been construed by the courts and
not a use which requires a variance.
The Zoning Board of Appeals of Southold Town is empowered
under Section 100-272 of the code to impose such conditions and
safeguards as it deems necessary or appropriate to preserve and
protect the spirit and objectives of the code itself. However, it
is our contention that the requirement of consent of 100% of the
adjoining property owners to construction of the monopole is not
within the power of this Board nor is it, in fact, constitutional
in New York. Imposition of unanimous consent requirements under
the circumstances involved in this application is unconstitutional.
In addition, it is our contention that in asking the adjoining
property owners to consent to construction of the monopole the
Board cannot additionally require that those property owners
consent to a restriction on the use of their property by such
consent.
The courts have found that conditions must relate reasonably
to the proper objectives of zoning. Reed v. Board of Standards &
Appeals, 255 N.Y. 126 (1931). The proper objectives of the zoning
code in Southold Town are stated in Section 100-10 of the Code none
of which are reasonably related to the requirement of consent and
restriction asked by this Board for this application. See also:
Pluto's Retreat, Inc. v. Granito, et al, 437 N.Y.S. 2d 437 (2d
Dept. 1981) where the court Dtated that a Board of Appeals upon
issuance of a special use permit may impose any reasonable
conditions which are in conformity with the purpose and standards
of the ordinance. Unanimous c~nsent by adjacent property owners
coupled with restriction on the use of their land are not
reasonable conditions. The Board is not authorized to impose
conditions unrelated to the purpose of zoning or which are neither
expressly or impliedly authorized by the zoning regulations. The
use to which applicant seeks to put this portion of the parcel is
a permitted use in the district and the Board has neither express
nor implied power to set restrictions on the permitted use which
are unreasonable. In fact, by requiring that the adjacent property
owners consent to restriction of the use of their property is to
confiscate that property and that is beyond the power of a Zoning
Board of Appeals. Rand v. New Yor~, 3 Misc. 2d 769, 155 N.Y.S. 2d
753 (1956). In addition, applicant has submitted a report by the
engineer's who will construct this moncpole that in 20 years of
experience they have never known of a pole to collapse as a result
of wind load. That report graphically illustrates the safety level
of this structure.
The topic of consent of adjacent property owners has been
controversial for many years. However, in New York it has becn
found to be unconstitutional as an impermissible delegation of
zoning power to private landowners. Matter of Concordia Coll.
Inst. v. Miller, 301 N.Y. 189 The items to be considered are
whether the requirements are in the code (which they are not),
whether the Board can impose unreasonable conditions (unanimous
consent coupled with restriction of use are not reasonable), and
finally whether the use requested will constitute a nuisance (a
permitted use cannot possibly be a nuisance). The court in Town
of Gardiner v. Stanley Orchards, Inc., 105 Misc. 2d 460, 432 N.Y.S.
2d 335, stated that after extensive research it could not find a
New York case which upheld the constitutionality of a unanimous
consent requirement. In that case the requirement was in the
zoning law itself while here it is being imposed without authority
which applicant contends is an ultra vires act by this Board.
I respectfully submit this letter for the Boards consideration
and urge the Board to withdraw the request for consent of adjoining
property owners coupled with a restriction of use to the consenting
party.
Ve~truly yours,
MARIE ONGIONI
MARIE ONGIONI
ATTORNEY AT LAW
218 FRONT STREET, GREENPORT, NEW YORK 11~)44
(516) 477-2048
Re: NYNEX Application
October 21, 1991
To Whom It May Concern:
I am the owner of property adjacent to that upon which the
applicant, NYNEX Mobile Communications, wishes to build a cellular
telephone antenna (a monopole) and a communications building.
I have discussed this matter with the attorney for the
applicant. I have viewed a sketch of the radius of the fall down
area of the monopole prepared by the applicant's engineers together
with a report as to its ability to withstand wind load among other
things. It is my belief that the monopole does not present a
safety hazard.
After review of the above, I consent to the construction of
the monopole. I do not believe that my ability to utilize my
property should be infringed because of the monopole, and, I do not
consent to any such restriction on the use of my property by my
consent to construction of the monopole.
Very truly yours,
JOSEPH SCHOENSTEIN
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
ACTION OF THE BOARD
Appl. No. 4062.
NYNEX MOBILE COMMUNICATIONS/ARTHUR V. JUNGE, INC. Request
for Special Exception approval under Article XIV, Section
100-141B(1) for permission to establish public utility use and
construct monopole radio tower and accessory equipment-storage
building. Zone District: Light Industrial (LI). Location of
Property: 21855 County Road 48, Cutchogue, NY; County Tax Map
Parcel No. 1000-96-1-19.1.
WHEREAS, after due notice, a public hearing was held on
October 24, 1991, and at said hearing all those who desired to
be heard were heard and their testimony recorded; and
WHEREAS, the Board has carefully considered all testimony
and documentation submitted concerning this application; and
WHEREAS, Board members have personally viewed and are
familiar with the premises in question and the surrounding
areas; and
WHEREAS, the Board made the following findings of fact and
determination:
1. The premises in question is located in the Light
Industrial (LI) Zone District in the Hamlet of Cutchogue, Town
of Southold, and is more particularly identified as County Tax
Map District 1000, Section 96, Block 1, Lot 19.1.
2. The subject parcel contains a total area of 1.04 acres
(or 45,589 sq. ft.) with a frontage of 168 feet along the north
side of County Route 48 and a lot depth of 252+- feet. This
parcel is improved with an existing building and uses which were
the subject of a conditional approval by the Board of Appeals
under Appl. No. 3835 rendered April 27, 1989 and Appl. No. 3705
rendered March 3, 1988 (Arthur L. Junge, Inc.), as well as site
plan approval by the Southold Town Planning Board.
3. By this application, a Special Exception is requested
for "...construction of an equipment building and monopole for
cellular mobile communications...", both of which are public
Page 2 - November 21, 1991
Matter of NYNEX/ARTHUR JUNGE, INC.
Decision Rendered November 21, 1991
utility structures providing a public telephone communications
service.
4. Reference is made to the following documents and site
plan information submitted for the record:
(a) Certificate of Occupancy #Z17295 issued by the
Building Inspector on September 13, 1988 has been provided for
the existing electric shop of Arthur V. Junge and building.
(b) Certificate of Occupancy #Z18981 issued by the
Building Inspector on April 23, 1990 has been provided for a
wholesale bakery and in the existing light industrial building
to Local Talent, Inc.
(c) the proposed equipment storage building and tower
structure will be unmanned, not requiring active daily parking
for on-site personnel or customers related to this use.
(d) an existing tree line is shown along or very near
the northerly and southerly lines the property; pine-tree
screening shall be along the westerly property line.
(e) also proposed a stockade fence along the
northerly and easterly sections of the proposed radio equipment
storage building;
(f) other site plan elements will be provided as may
be determined by the Planning Board under its simultaneously
pending site plan application {see PB letter of 11/7/91}.
(g) New York SMSA Limited Partnership and NYNEX have
furnished information for the record concerning its licensing as
a public utility to provide cellular radio transmission serving
to its full extent the public interest, convenience and
necessity as per written consent and order authorized by the
N.Y.S. Public Service Commission, Federal Communications
Commission, which includes limitation on the Effective Radiated
Power for mobile transmitters up to 7 watts, and output power
for mobile transmitters up to 60 watts. It is also not
permitted to be assigned or transferred to any person, firm,
company, or corporation without the written consent of the
Commission, and it is understood that upon any future proposal
of this applicant or owner(s) to transfer or assign this
authorization, subsequent application to this Board must be
filed for consideration.
5. Also noted are the following data:
Page 3~- November 21, 1991
Matter of NYNEX/ARTHUR JUNGE, INC.
Decision Rendered November 21, 1991
(a) cellular communication systems must operate
through a network of cell sites, the first for this applicant in
the Town of Southold at the subject premises in Cutchogue.
(b) this cell site has two principal components, a
12' by 26 ft. structure for computer equipment storage, and
transmitting/receiving antenna-tower structure, both of which
are incidental and necessary to operate a wire line telephone
communications use. The top of the tower is 12 ft. equilateral
triangle, 40 inches high, 36 inches at the base and 18 inches at
the top. There would be two whip antennas that are 10 ft.
above that, and one below.
(c) the tower and building are monitored seven days a
week, 24 hours per day per FCC mandates, although it is unmanned
physically at the site.
(d) the tower and antenna are solely for use by this
applicant/public utility and will not be rented or leased to any
other corporation, person, firm or company. Also, it is
expressly understood that no new cell, or expansion will be
established, unless further application and approvals by this
board and the regulating commissions, on this site in order that
appropriate criteria may be evaluated, including engineering
data relative to wind pressures, wind loads and other safety
considerations for such future utility expansion.
(e) the tower and antenna shall not be constructed of
steel lattice design, but shall be a monopole structure designed
to withstand continuous wind loads in excess of 150 mph and wind
peaks of 190 mph or more (sufficiently mounted with wires and
brackets capable to support these pressures).
6. Article XIII, Section 100-130 of the Light Industrial
(LI) and Light Industrial-Office (LIO) Zoning Provisions
authorize this type of telecommunications use by Special
Exception. The use of this proposed monopole tower and
accessory equipment storage building would include, to some
extent, telephone exchanges. Although a telephone exchange is
listed as a permitted use in the Light Industrial (LI) Zone
District, this application for public utility structures and
uses does require a special exception as provided by Article
XIV, Section 100-14lB(i) and Article XIII, Section 100-131B(4)
for "... Public Utility Structures and uses .... " The Special
Exception provision is applicable to this proposed project, and
has been filed and considered under this provision.
7. In passing upon this application, the Board Members
have also considered Sections 100-264, subsections A through P,
and have found and determined the following:
Page 4 - Appl. No. 4062
Matter of NYNEX Mobile Communications/Junge
Decision Rendered November 21, 1991
(a) That the proposed use will not prevent the
orderly and reasonable use of adjacent properties or of
properties in adjacent use districts;
(b) That the use will not prevent the orderly and
reasonable use of permitted or legally established uses in the
district wherein the proposed use is to be located or of
permitted or legally established uses in adjacent use districts;
(c) That the safety, health, welfare, comfort,
convenience, or order of the town will not be adversely affected
by the proposed use and its location;
(d) That the use will be in harmony with and will
promote the general purposes and intent of this chapter;
(e) That the use will be compatible with its
surroundings and with the character of the neighborhood and of
the community in general, particularly with regard to
visibility, scale and overall appearance.
NOW, THEREFORE, on motion by Mr. Goehringer, seconded by
Mr. Grigonis, it was
RESOLVED, that the application for a Special Exception for
the establishment of a public utility for the construction of a
cellular telephone communications tower and accessory
equipment-storage building as applied under Appl. No. 4062 in
the Matter of NYNEX/ARTHUR V. JUNGE, INC., BE AND HEREBY IS
APPROVED, SUBJECT TO THE FOLLOWING CONDITIONS:
1. No excessive (disturbing) noise levels;
2. No expansion or additional construction (with the
exception of emergency, fire or police necessities which serve
the safety, health, welfare, comfort, convenience and order to
the town), unless further application and approvals are
obtained, and for which engineering certifications will be
required concerning increased loads, winds pressures and other
safety considerations for such expansion;
3. No microwave dishes, as agreed by the applicants (none
of which are proposed during the consideration of this
Page ~ - A~pl. No. 4062
Matter of NYNEX Mobile Communications/Junge
Decision Rendered November 21, 1991
application);
4. No disturbing emissions of electrical discharges,
light, vibration or noise, or harmful distribution levels of
radiation, as agreed.
VOTE OF THE BOARD: AYES: MESSRS. GOEHRINGER, GRIGONIS,
DOYEN AND VILLA. (MEMBER DINIZIO ABSTAINED FROM DISCUSSIONS AND
FROM VOTE). This resolution was duly adopted.
lk
GERARD P. GOEHRINGER, CHAIRMAN
MARIE ONGIONI
ATTORNEY AT LAW
FRONT STREET. GREENPORT. NEW YORK 15944
(516) 477-2048
FAX (5(6) 477-8919
Re: NYNEX Application
October 21, 1991
To Whom It May Concern:
I am the owner of property adjacent to that upon which the
applicant, NYNEX Mobile Communications, wishes to build a cellular
telephone antenna (a monopole) and a communications building.
I have discussed this matter with the attorney for the
applicant. I have viewed a sketch of the radius of the fall down
area of the monopole prepared by the applicant's engineers together
with a report as to its ability to withstand wind load among other
things. It is my belief that the monopole does not present a
safety hazard.
After review of the above, I consent to the construction of
the monopole. I do not believe that my ability to utilize my
property should be infringed because of the monopole, and, I do not
consent to any such restriction on the use of my property by my
consent to construction of the monopole.
Very truly yours,
/JOSEPH- SC~OENSTEIN
MARIE ONGIONI
iA:ORNEY AT LAW
218 FRONT STREET, GREENPORT, NEW YORK 11944
(516! 477-2048
FAX (516) 477-89 ! 9
Zoning Board of Appeals
Town Hall
53095 Main Road
P. O. Box 1179
Southold, New York 11971
October 30, 1991
Attention: Ms. Linda Kowalski
Re: NYNEX Mobile Communications ADDlications
Dear Linda,
In accordance with your request enclosed herewith please find
copies of the cases cited by this office in the brief submitted in
support of the NYNEX applications and in the letter to the Board
regarding the consent requirements dated October 24, 1991.
Please excuse the poor quality of some of the copies. They
were made at the Supreme Court library in Riverhead where those
case books were located and, unfortunately, the available copying
machine leaves a lot to be desired in terms of a quality product.
If you need any further material, please do not hesitate to
call.
Very truly yours,
MARIE ONGIONI
Carmela L. Borrelli
Law Clerk
encs.
Act[on for 'a declaratory judgment seeking to have § 35 of 'the
Ceneral City Law declared uuconstitutionM in its appiica,'.ion to the prop-
erty 9f plaintiff. P~aintiff moved for ~ summary judgment an~I iht de-
fendiints cross moved fo~ a summary judKalent 'Hie Supz~me Co~,
Special Term, Samuel Rab~, J.; held that were plaintiff applied for a
variance for use of her proper~ for a garage building ~nd it w~s grant~
on condition tlmt in ev~t of condemnation ~e cost sh~ld be amo~i~
over a te~ of I0 years at file rate of lO per c~t ~r year and pro~
' building h~d a Hie of ~'years, a~pl{cation of the conditions imPOsed con-
stimted a taking of the ptolemy of l)la~,~h{ without j*:st~ompensMi~.
Pla[nt{ff's motion for summary jud~nent grented. Defendant'
cross mot[~ deni~.
If
res~rld~ use district by attaching co~Mhlons ~o a variance that the pr~
e~- could not be wsed for any reasonable ~rpose for an indefinke peri~
of time the city ac~ed be)~nd the ~:ds of permissive regulation m~d
tb~Sr action constitu:ed the t~ing of the proper~ whhout due process of
law. General City ~w, ~ 3~.
Where plaintiff appti~ for a va~nce f~ the use of her prope~
for a garage building and
condemn!tiaa ~e e~st al;auld ~ amo~i~ ~-~ a tenn of 10 years at the
rate of 10 ~er cci
50 yea~s, application of '~;~ ~ondkions hupo~ ~sritut~ a ~a~ of
· e prope~ of 2{air,~iff without just comr~fi~ ~a~a} ~ty ~w,
~ 35.
proper rather ;:h~ a ;e~4e~v of ~ie act[aa of ~e }~aM of ~tandards and
appeals by cert[or~.
Am actign ~er t decY~;~OO- ju,~g,nent tMt a d~ la~v was ~mcon-
stitution~J
7.¸.
?dg~:eot. ;%:,Ie3 -Jr Ck'il P~ :ctice, i'u~e
The presence of an isst~ of fact ?e,4uires a
in dcclar:~ioO' j::dgment i~tion
~utional :,~ i¢'s zpp![.:ition to the rrOparty of
k~r x s~m, 'tory .[udg,,ent was ~'cq~lired to be Sc~nted ,,-h~[e
Benjamin Diamond, Focest Hills,
~' ~' C';m >:~e!I l?rown. Corp. Co:msel, New York
SA MUEL ~\B!N, Justice.
!2 tMs ,,orion for a dec!aratol'y j~,:Is:nent in v:Idch i,~':M[~ff
li:~ve sect;on 35 of tlc Gcc!oral City !aw decI~xed
application to h<r property, plaintiff ~:~v moves for
Street in tee County of Queens. She acquh.'d title iLcreto
t932 by forcclosh,s a transfer of tax !~m v. hkh she ;-~d
d:e defendant City. PIMhtiff's property lles in ~n <:restriC;:~l
t~ict in ,vkkh the erection of a ncn-s~orage g ,cage :~ peri?Js~t
zoning ordktanee.
On March 1, i951, the Board of E~th,~a;:e of the City
adopted a map l:xying out ~he con'fines of .he propu~.ed
Exlcnsioa f~om X',m Wyck Boulevard to L~te~y
:qghty ~r ce!tt ,~{ p!aintiff's pro, etD' lies hi ~e 1,:4
dkion---
"al:at t;~ L':g':27ng .'hall ~a ;11 ~ftl~.r .,-~,~,:~$ ;a-xq'
quircn-c.ts of :zd otll~ %~.'= afiplkab!¢ ::;~,'t>; 7tat
the con~tmns: m,p,~- . , ' ....
just ~m~en~
[3] De_¢~idants--
view of the'Bca, d
declaratory jud~ent. Cu~ce ir'to -.~y ;~t _.z ,,:,ion
Retry, lng., v. ~[ty.o[ 5it.
~9 N.Y. 167, 177;
Delm')d~ atten~ to
:md Appeals ~uted a var~ uBou
alon~ however, are co~scato~
pletely ~ter zl}e ten~ y~.
[¢] Def~.~
as to w~,~er t~ ~ndlti~ ~by
peals ia reasc~a~ld.
,,..i.~,:..~.l..~~,~'r ;e :~??l ~.~d. 2? ~ -.:~ .;~0 '": '. ~"
the ~a~,,~mg if ~.¥;ndem. atton '" "' ~ '.a-e more
judgment is a ~roper ~'cmedy ~vada,~x ,o ~.e
Realty, Inc.,
! 5 N.a.2d
lc[ely a.~er me ta~th y~r,
as to whe~er the ~,ndltlon
.,, -.. ,, i36 N,Y.S.2d
- ~ "' · ':17, '" ..: - -"-~.._ '..~ ~,, e..,~-.
-4 ~ .,.'~ -.4 :,;- , -~'y ~-'~ ~-,r.-I :~
....... . .............
. · ..... ~ ~ .... ~.-l,,a ~, $~.t~
C'G~{ '-( :' . ....., ....... __~ ~ .... _ ,....
~'.¢- . ,}'-
C<
by court
,md ~f his d&mi-
rc waf no attempt
~6n ot the merit.
eat--appellant. =-
-r c~pondent.
q" F.., McNALLY
Cd in the exerdg
to fp,,clal Term,
hearing forthwi',h
;lo of defend~mt)
~s ~.o either party
by a ';;zc=:~:.~on cf tJ:c a~erits. W!d~e a def, n~.iot ~oa7 :~.e .l,:oned t'o
Lave :ub~&tcd to :he jmi~dlc:ion of ~he Court c~:en I e 5cc~.mes an
actor in ti~e suit [IIendcrscn v. ~[e~:durson, 247 N.Y. 428, ~32, t60
N.E. 775, Y77), :be qocstion is one o[ degree d%endh:g ca the fact~
of each ~3se. ~'f~t's alh~shms to ~me of the mtZts were inex-
tricably ~oven with C:e ~i=estion of chauge of domicile. I~ere w~no
attempt tO p~rt~clpat~ ~ the ~i~ on ~.he merits (see Odi,:~ v. Odlen~
265 App. DD. 641, .~ N.Y.S.2d l~).
Pr~eedlng under the Cji-il Practice Act to cex%w a
of t.e zoning ~card of al~eah of a ummc~Fahty cenym~n
for a variance of setba~ reqnlre~nt~ ~e Supreme Court, Frank H.
Coyne, J., entered an order advert¢ to landowner and
'D~e Supreme Cou~, Ap~Ilate DD sioni held khat where
,o~gh, a ~nnlt to ercqt a dwelling on a Fk>t located in a dis~
use of land ~.s les~kt~ .~ resid~, churckes' and other
worship, a ~.~onaNe ~'ad~m tiom ~b~ requir~amts m'zould
been grant~ by ~e tong ~a,'d of app~ls.
Order ~vdr~e~ detemlnafioa ammtl~, and matter rcmitt~ for
f~Iner pr~dlugs la acmrdm~ w{th ~him ~
Back .'cqu;rem.:vt:~ ~;ould have ~e~ g~nted ty tl~ zoning ~>,ard of
peals.
and i{XLLIz~-%N, ~J- -~ '
-- ~'' BY 'f}iE Cou~T. "
~!kSioRANDU
In a p~oc~edlng pursuant to article 7~ o{ ihe Civil.. Frs,:Sce......
a deter-ruination oi the Z,a~g ~oard oi .%~pc.ua
tion o{ {~ont a~ ~ yard ~etba~ ceqmI~ctlon o{ a l~elUng
zon~ ordln~ce wi~ resp~t to a pro. sod
.... x~hich, under the
i~ ~ate~ M a dtstn~ m d~urch~ ~d o~]aer ~"~
the use of I~d is res~ict~ to
worCniP, and (2) ~o dh'cci ~e b~tl,~ng
· ' ' ~ie fe5~II~ ~- ~ . ..~,_
ings not h~const~tent x~tth been ' :~"'~
A reas0nabl~ x~ariance should ha~e
, · -~ P{~ha~ v. Zo~iug B~k'
t~cc i~atter u~ -- - ~ ~ ~ y 5.,~d 603;
~n,e, 285 App.Di~. 2S7, · ......
EILc.2d 80. 159 N.Y.S.2d $52/.
plalnLi~'s a~tOn ~[~ h~ from male
for ~d~B~o.~tc '
- ". where
3{under, J., iie~4 ~at ~d male d t' ~rought~'her - '~ ,ri
276
[3] The court erred, therefore, in setting
aside the verdict for lack of proof of proxi-
mate cause. Thus, the verdict must be
reinstated without modification unless it be
deemed excessive. In light of the evidence
herein of the weekly assistance that testa-
trix, 46 years old and unmarried, was giving
to her somewhat incapacitated sister Jane,
and the fact that she had another sister and
brother older than she, we cannot conclude
as a matter of law that it was excessive
(Gross v. Abraham, 306 N.Y. 525, 529-531,
119 N.E.2d 870, 371-373; Countryman v.
Fond& J. & G. R. R, Co,, 166 N.Y. 201,
208-210, 59 N.E. 822, 824; Wblte v. Coyle
Wrecking and Lbr. Corp., 279 App. Div. 822,
109 N.Y.S.2d 118; Walther v. News Syndi-
cato Co., Inc., 276 App. Div. 169, 175-177, 93
N.Y.S.2d 537, 543~546; Weir v. Cosmopoli-
tan Carriers Inc., 249 App. Div. 758, 291
N.Y.S. 968; Winant v. City o£ New York,
Sup., 67 N.Y.S.2d 662 affd. 271 App. Div.
883, 67 N.Y.S.2d 485; 11 N.Y. Law of Dam-
ages, §§ 1183-1184; 2 N.Y.P.J.I. 683
684).
Judgment unanimously reversed with
costs and verdict reinstated.
SIMONS, J., not participating.
55 A.D.2d 809
Application of MOBIL O1L CORPORA-
TION, Appellant,
Robert OAKS et al., Respondents.
Supreme Court, Appellate Division,
Fourth Department.
Dec. 10, 1976.
Article 78 proceeding was hrooght te
review town board's denial of grant of spe-
390 NEW YORK SUPPLEMENT, 2d SERIES
cial permit for construction of gasoline
service station. The Monroe Supreme
Court, Robert E. White, J., sustained town
board's determination, ami petitioner ap-
pealed. The Supreme Court, Appellate Di-
vision, held that town board's finding that
transfer of operations would have disturb-
lng influence upon character of area was
supported by substantial evidence that dem-
onstrated that moving gasoline service sta-
tion to proposed site would not be in harmo-
ny with present or probable future develop-
ment of land immediately adjoining pro-
posed site.
Affirmed.
1. Zoning ~==570
Approval or denial of application for
special use permit is administrative rather
than legislative function and action of town
board in denying such a permit is subject to
judicial review under Article 78. CPLR
7801 ct seq.
2. Zoning ¢=~483
Special use permit differs from vari-
ance in that former contemplates use ex-
pressly permitted by particular zoning ordi-
nance while latter is authority to use prop-
erty in manner which is otherwise forbid-
3. Zoning
When ordinance sets forth conditions to
he met before special permit will issee, bur-
den of proof on applicant requires showing
of compliance with conditions ami town
board's power is limited to determining
whether applicant for special nsc permit
meets stamlards recited in storing ordi-
4. Zoning ¢=~417
Where zoning ordinance did m~t contain
legislative finding that, since gasoline fill-
ing station was permitted ose in ~mnnercial
MOBIL OIL CORP. v. OAKS
Cite a~ 390 N,Y,S,2d 276
district provbled special permit was obtain-
ed, it was per se in harmony with general
zoning plan but legislature left for body
which was to determine whether special
permit should issue to consider whether
proposed use would be in harmony with
existing and proposed future development
of neighborhood, permit could be denied on
ground that proposed filling station wa~ not
in harmony with neighborhood.
5, Zoning ~=~615
Courts will not generally interfere with
town board's determination in a zoning dis-
puts, since such matters are best resolved
by commonsense judgments of represents-
tire citizens doing their best to make ac-
commodations between conflicting commu-
nity pressures.
6. Zoning '~='645
Town board's finding that transfer of
gasoline filling station operations would
have disturbing influence upon existing and
probable character of area in support of its
denial of application for special use permit
for construction of gasoline service station
was supported by substantial evidence
which demonstrated that moving gasoline
~ervice station to proposed site would not be
in harmony with present or probable future
development of land immediately adjoining
pmposed site.
Duteher, Witt, Sidoti &Ricbards, Frank
¥. ~qidoti, Rochester, for appellant.
Whitbeck, Holloran & Keigher, John J.
geigher, Rochester, for respondents.
Before CARDAMONE, J. P., and SI-
MONS, MAHONEY, DILLON and WIT-
MER, JJ.
blEI~IORANDUM:
Mobil Oil Corporation, appeals
judgment in an Article 78 proceed-
which sustained the determination of
Town Board of Henrietta, de-
of a special permit to peti-
tioner.
. Mobil, owner of a gasoline service station southeast corner of Lehigh Station
277
Road and East Henrietta Road in the Town
of tlenrietta, Monroe County, had sought a
special permit to construct a gasoline serv-
ice station upon a parcel of land situate on
the northeast corner of said intersection.
The subject property lies within an "A"
Commercial District. Section 39-13(2) of
the Henrietta Zoning Ordinance permits
gasoline filling stations in "A" Commercial
Districts subject to the particular require-
ments of section 39-31 of the zoning ordi-
nance and provided that the applicant ob-
tain a special permit from the Town Board
following a public hearing. Section 39-13
of the Henrietta Zoning Ordinance allows
gasoline filling stations in "A" Commercial
districts provided a special permit be grant-
ed pursuant to the requirements of section
39 31 and section 39-35 of the Ordinance.
Section 39-31 contains many restrictions on
the issuance of a special use permit for a
filling station. It sets forth building set-
back provisions, approach driveways, signs,
lot size and curb requirements (§ 39-31(a));
and fuel and gasoline pump set-back re-
quirements (§ 39 31(b)).
In addition section 39 35 of the Zoning
Ordinance provides the Town Board guid-
ance in making its determination whether
to grant or deny a special permit. Among
the six standards to be met before a special
use permit may be issued, the Town Board
must determine "whether the proposed use
will be in harmony with the existing and
probable future development of the neigh-
borhood in which the premises is situated"
(Henrietta Zoning Ordinance, § 39-35(c)).
Following the public hearing the Town
Board denied the application for a special
permit citing four separate and distinct rea-
sons. Special Term found two of the rea-
sons not supported by substantial evidence
and a third placed an additional burden on
the applicant not required by the ordinance.
Special Term, however, concluded that find-
ing numbered "2", i. e., the transfer of
operations will have a disturbing influence
upon the existing and probable character of
the area, to be a proper consideration, sup-
ported by substantial evidence and suffi~
278
390 NEW YORK SUPPLEMENT, 2d SERIES
cient for the denial of the special permit.
We agree.
[1-3] Thc approval or denial of an appli-
cation for a special use permit is an admin-
istrative rather than a legislative function
and the action of the Town Board in deny-
ing such a permit is subject to judicial
review umler Article 78 of the CPLR (Mobil
Oil Corp. v. City o£ Syracuse, 52 A.D.2d 731,
381 N.Y.~2d 924). A special use permit
differs from a variance in that the former
contemplates a use expressly permitted by a
particular zoning ordinance while the latter
is authority tn use property in a manner
which is otherwise forbidden. Thus, when
the ordinance sets forth conditions to be
met before a special permit will issue, the
burden of proof on an applicant requires a
showing of compliance with the conditions
and the board's power is limited to deter-
mining whether an applicant for a special
use permit meets the standards recited in
the zoning ordinance.
[4,5J Mobil contends that the inclusion
of a permitted use in an ordinance, subject
only to a special permit, indicates that the
use is in harmony with the neighborhood.
Petitioner's reliance upon Mtr. o£ North
Shore Steak House v. Board o£ Appeals of
Inc. ViL o£ Tbomastou, 30 N.Y.2d 238, 331
N.Y.S.2d 645, 282 N.E.2d 606 and Matter of
Highland Brooks Apts. v. White, 40 A.D.2d
178, 338 N.Y.S.2d 709 is misplaced. In
those cases the use sought by the applicant
was a permitted use in the zoning district
provided there existed compliance with cer-
tain enumerated conditions. In those cases
there was a preestablished legislative find-
lng that the requested use was in harmony
with the general zoning plan, and the issue
was, therefore, limited to whether the ap-
plicant had sufficient proof of compliance
with the enumerated conditions. Such is
not the case here. As enacted, the Henriet-
ta Zoning Ordinance does not contain a
legislative finding that since a gasoline fill-
ing station is a permitted use in an "A"
Commercial District, provided a special per-
mit be obtained, it is per se in harmony
with the general zoning plan. Rather, as
can be seen from section 39-35(c) of the
ordinance, the legislature left for the body
which was to determine whether a special
permit should issue to consider whether
"the proposed use will be in harmony with
the existing and proposed future develop-
ment of the neighborhood in which the
premises is situated" (see, Matter of C & G
Developers, Inc. ~. Grauito, 53 A.D.2d 612,
384 N.Y.S.2d 15). Courts will not generally
interfere with the Town Board's determina-
tion in a zoning dispute, since these matters
are best "resolved by the 'common-sense
judgments' of 'representative citizens doing
their best to make accommodations be-
tween conflicting community pressures'"
(Matter o£ Lemir Realty Corp. v. Larkin, 11
N.Y.2d 20, 25, 226 N.Y.S.2d 374, 377, 181
N.E.2d 407, 409). This rationale is particu-
larly apt in a case such as this where to
interfere would be to ignore the important
ingredient of flexibility which the Town
Board plainly reserved to itself when it
enacted the Henrietta Zoning Ordinance
(see, Todd Mart v. Town o£ Webster, 49
A.D.2d 12, 19, 370 N.Y.S.2d 683).
[6] The Henrietta Town Board made de-
tailed findings based in part upon a compre-
hensive although not formally adopted plan.
The findings are supported by substantial
evidence which demonstrates that moving
the gasoline service station to the northeast
corner of the intersection wouhl not be in
harmony with the present or probable fu-
ture development of the lamls immediately
adjoining the proposed site (Philanz Olds-
mobile v. Keating, 51 A.D.2d 437, 381 N.Y.
S.2d 916).
Judgment unanimously affirmed without
costs.
SIMONS, J., not participating.
Pete
Op~
J
agai~
tere~
er h~
grou
prem
iasur
and i
Appt
pert~
¢ond;
of st
trial,
phon
eoulc
and
ness
from
Stat~
1. In
I
er be
that
bring
forts
to ob
titud~
been
obstr
2. In,.
I
sured
burdt
910
NEW YORK SUPPLEMENT, 2d SERIES
113 Misc.2d 756
In the Matter of the Application of Dr.
Edward GOLDSTEIN and Sherry
Goldstein, Petitioners,
For a Judgment Directing the Board of
Zoning Appeals to grant Petitioners a
special exception,
The BOARD OF ZONING APPEALS OF
the TOWN of HEMPSTEAD,
Respondent.
Supreme Court, Special Term,
Nassau County, Part 1.
April 26, 1982.
Article 78 proceeding was brought,
seeking judgment directing that optome-
trist be declared a physician pursuant to
section of town zoning ordinance and grant-
ed a special exception. The Supreme Court,
Special Term, Nassau County, George A.
Murphy, J., held that: (1) discretion of
board of zoning appeals in determining
whether special exception shall be granted
is confined to standards enacted to guide
and limit board's power, and (2) review of
record disclosed that petitioners' proof did
not show by requisite "dollars aed cents"
evidence that subject premises could not
yield a reasonable return if used for one of
purposes permitted within zone so as to
justify finding of unnecessary hardship for
granting of use variance.
Ordered accordingly.
1. Zoning and Planning ~=~488
Discretion of beard of zoning appeals in
determining whether special exception shall
be granted is confined to standards enacted
to guide and limit board's power.
2. Zoning and Planning ~:~542
When standar~is enacted to guide ami
limit beard of zoning appeals' power in de-
termining whether special exception shouhl
be granted have been met, board is without
authority to deny exception.
3. Zoning and Planning ~=~536
A special exception may not be '~
held for failure of applicant to show eitl~
that zoning ordinance as applied to his 14
imposes unnec~sary hardship or
difficuRies or that the hanlship of the
plicant was self-created.
4. Zoning and Planning ~=~484, 60/
"Special exception" disputes are
resolved by commonsense judgments of
resentative citizens doing their he~t
make accomm~lations between conflicting
community pressares, aed for courts to
tervene in absence of clear illegality
be contrary to settled and praetisal nece~v
ties of zoning. .
5. Physicians and Surgeons ~=~6(I)
Practice nf optometry is not practise of
medicine. McKinney's Education Law
§§ 6521, 6522, 7101.
6. Zoning and Planning ~=~502
Determination of town board of zoning
appeals that optometrist was not "phy~i.
clan" within contemplation of zoning ordi-
nance authorizing special exception in an)'
residence district for premises used by phy-
sician or dentist for conduct of his practice
was not arbitrary~ capricious or abuse of
discretion. McKinney's Education Law
§§ 6521, 6522, 7101.
7. Zoning and Planning ~:~539
Review of record disclosed that proof
of optometrist and wife did not show by
requisite "dollars and cents" evidence that
subject premises could not yield reasonable
return if used for one of purposes permitted
within residence zone so as to justify find-
lng of unnecessary hardship for granting of
use variance.
Parola, Feuerstoin & Gross, Wantagh, for
petitioners.
W. Kenneth Chave, Jr.~ Town Atty.,
Hempstead, for respondent.
GEORGE A. MURPHY, Justice.
In this Article 78 proceeding the petition.
ers Goldstein seek a judgment directing
GOLIISTEIN v. BOARD OF ZONING APPEALS, ETC.
Cite as, Sup., 449 N.Y.S.2d 910
Goldstein lm dcclarod a physician
pursuant to Section G 20.0 of the Town of
ltempstead Buibling Zone Onlinance ami
granted a special exception.
Petitioners are contract vendees of a one-
story ranch style home located at 3448 Jeru-
salem Avenue, Wantagh, New York.
Petitioner, Dr. Edwanl Gohlstein, desired
t~ use the premises as a non-resident doc-
tot's (Optometrist) office. Two applications
were filod by petitioners. One applicatkm
~ught a special exception to use the prem-
iss as a non-resident doctor's office. Thc
other application was for a sideyard earl-
Both applications were deniod by the
Building Department and the deter-
rainations of the Buikling Department were
subsequently affirmed by thc respoodent
Board. The respondent Board found that
the area character was zoned for single
family dwellings anti that there was no
Udollars anti cents" proof to justify a fiml-
:hg of unnecessary bardship for the grant-
~g of a use variance. The Board also
that petitioner was not a physician
for the purposes of the special exception set
forth in the m'dinance.
Petitioners conteml that Dr. Edward
i~oldstein is a provider of health services as
an Optometrist am! shoubl have been grant-
~d a special exception as a mm-resident
Physician. Petitionel~ argue that the deni-
al of the special exception by the reslnm-
dent Board w~ arbitrary, capricious, dis-
griminatery and contrary to law.
[1-4] The discretion of a board of zon-
' appeals in determining whether a spe-
exception shall be granted is confined
to the standards enocted to guide and Ibnit
the Board's power (tlartnett v. Seffor, 21
A.D.2d 132, 249 N.Y.S.2d 1931. When the
standards have been met the Board is wi~h-
out authority te deny thc exception
(lIolmes & Murphy, Inc. v. Bosh, 6 A.D.2d
200, 176 N.Y.S.2d 183; Harrisoo-Warren
Realty Co. v. Spc,cer, 124 Misc. 783, 209
N.Y.S. 355; Larkfichl E~luitics hie. v.
kin, 181 N.Y.S.2d 684). Unlike a variance
which involves the varying of a zoning ordi-
911
nance, a special exception deals with com-
lfliance of the ordinance and imposes upon a
board of zoning apl)eals the duty to grant
an exception once the conditions specifiod in
the ordinance have been met (Krust v. Hill,
212 N.Y.S.2d 981; Rathkopf, The Law of
Zoning & Planning, Vol. 3, § 41.05(11, p.
41-181. Moreover, a special exception may
not be withheld for failure of the applicant
to show either that the zoning ordinance as
applied to his land imposes unnecessary
hardship or practical difficulties (c£., Syos-
set HoMing Corp. v. Scblimm, 4 A.D.2d 766,
164 N.Y.S.2d 890; Koch v. Zoning Board o£
Appcals, 54 Misc.2d 1090, 284 N.Y.S.2d 1771
or that thc hardship of the applicant was
self-created (Freitag v. Marsh, 280 App. Div.
934, 115 N.Y.S.2d 838). "Special exception"
disputes are to be resolved by the "common-
sense judgments" of "representative citi-
zens doing their best to make accommoda-
tions between conflicting community pres-
sures,'' anti for thc courts to intervene in
tim absence of clear illegality, wouhl be
"contrary to thc settled and practical neces-
sities of zoning" (Matter of Lemir Realty
Corp. v. LurMn, 11 N.Y.2d 20, 25, 226 N.Y.
S.2d 374, 181 N.E.2d 407).
Section G-20.0 of thc Building Zone Ordi-
nance provides:
"Anything in this Ordinance to the con-
trary notwithstamling, in any Residence
District, if approved by the Board of All-
peals as a special exception after a public
hearing and subject to the provisions of
Article 12 bcrein, premises may be usod
by a physician or a dentist for the con-
duct of his practice, irrespective of
whether said physician or dentist resides
or has resided at said premises. Such
special exception shall be granted only to
single practitioners, ami in the event a
special exception shall be authorized by
thc Board of Appeals pursuant to this
Section, said special exception shall be
limited to an individual practitioner and
shall specify that, in thc event more than
one practitioner utilizes the special excep-
tit)n, it shall become null and void."
The exception provided for in the ordi-
nance applies only to a physician or dentist
912
449 NEW YORK SUPPLEMENT, 2d SERIES
as a single practitioner, irrespective of
whether said professional resides or has re-
sided at the residence.
Section 6521 of the Education Law
defines the practice of the profession of
medicine "as diagnosing, treating, operating
or prescribing for any human disease, pain,
injury, deformity or physical condition."
Only a person licensed or authorized by the
laws of this state to practice medicine may
use the title physician. (See, Section 6522
of the Education Law). The practice of
optometry is defined by Section 7101 of the
Education Law "as diagnosing any optical
deficiency, optical deformity, visual anoma-
ly or muscular anomaly of the human eye,
aiding or correcting such deficiency, de-
formity or anomaly by prescribing, provid-
ing~ adapting or fitting lenses, or by pre-
scribing or provkling orthoptics or vision
training." An optometrist may not use or
prescribe drugs. The optometrist performs
no medical function. He does nut treat
disease and providas corrective therapy by
external mechanical means.
[5,6] In the Court's view, the practice
of optometry is not the practice of medicine
and the determination of the respomient
Board that Dr. Gohlstein was not a physi-
clan within the contemplation of the ordi-
nance was neither arbitrary, capricious nor
an abuse of discretion (see, Silver v. Lans-
burgh & Bro., ill F.2d 518; Abelsou Inc. v.
New York State Board of Optometrists, 5
N.J. 412, 75 A.2d 867; New Jersey State
Board v. Kresge Co., 113 N.J.L. 287, 174 A.
353, 357; Corpus Juris Secumlum, Vol. 70
Physicians & Surgeons, § 1.
The cases cited by petitioners as repre-
sentative of respendent's imrported discrim-
inatory application of the special exception
for non-resident physicians ure ch!arty dis-
tinguishable from the case at bar. Those
cases involved two family dweUings in a
business or a business-resident district and
serve as no basis for a comparison. Peti-
tioner's remedy, if any, lies in convincing
the Town Fathers to broaden the special
exception to encompass optumctrists. The
special exception applies to only physicians
ami dentists and cannot even by the most
strained interpretution apply to optome,
trists as a provider of health services.
hohl otherwise without the beecfit of ~
legislative hearing ami an amendment t~
the ordinance would be to substitute t~
Court's judgment for that of the publi~
officials charged with the responsibility
enact and administer the Building Zone Or,;
dinance. In the Court's view,
have failed to demonstrate any
ami judicial intervention should not
countenanced. Certainly, special exeept~
disputes such as the one at bar should
resolved by those public officials
with the responsibility for doing se. ~ ~
[7] Based on the foregoing, the
is dismissed. Although petitioners do aa
contest the Boanl's denial of the use
ante, a review of the record diselosss that
petitioners' prc~ff does not show by the req-.
oisite "dollars and cents" evidence that the~
suhject premises cannot yield a reasonable
return if used for one of the purposes per-
mitted within the zone. (See, In Re BIa~,
herg, 87 A.D.2d 650, 448 N.Y.S.2d 523
(1982); Matter of Village Bd. o£ Vii. oF
Fayetteville v. Jarrohl, 53 N.Y.2d 254, 263,
440 N.Y.S.2d 908, 423 N.E.2d 385; Matt~
of Otto v. Steinbilher, 282 N.Y. 71,
N.E.2d 851, mot. for rcarg, den. 282 lq.Y.
681, 26 N.E.2d 811).
113 Misc.2d 861
Stanley BRETTSCIINEIDER. Plaintiff,
Olivia BRETTSCHNEIDER, Defendant.
Olivia IUIETTSCIlNEIIH,]R, Plaintiff,
Stanley BRETTSCIINEIDER, Defendant,
Seprome Court, New York County,
Trial Part 13.
April 27, 1982.
Husband ami wife sued each uther for
divorce. The Supreme Court, New York
di~
862
384 NEW YORK SUPPLEMENT, 2d SERIES
tioner demonstrated the feasibility of ad-
justing the schedule so that she could retain
her position. The case of Matter of Lynch
v. Nyqoist, 41 A.D.3d 363, 343 N.Y.S.2d 179,
affd. 34 N.Y.2d 588, 354 N.Y.S.2d 948, 310
N.E.2d 544 is not to the contrary. In that
case a Latin teacher was dismissed after
the only Latin position was removed from
the curriculum. It would have been impos-
sible, therefore, for the Latin teacher to
retain a teaching position in her area of
certification. The problems raised by sec-
tion 2510 of the Education Law in terms of
class scheduling ami related administrative
problems are for the Legislature, and not
for this court, to consider and resolve.
53 A.D.2d 672
In the Matter of Charles RICH,
Appellant,
The ZONING BOARD OF APPEALS OF
the VILLAGE OF HASTINGS-ON-
HUDSON et al., Respondents.
Supreme Court, Appellate Division,
Second Department.
June 21, 1976.
Article 78 proceeding was brought to
review determination of village zoning
board of appeals which after a hearing de-
nied petitioner's application for special use
permit. The Supreme Court, Westehester
County, dismissed petition, and petitioner
appealed. The Supreme Court, Appellate
Division, held that zoning board of appeals,
which erroneously considered application
for special use permit as application for
variance, applied strieter standard than was
warranted and thus matter would be re-
manded for consideration of application as
one for a special permit.
Reversed and remanded.
Zoning ~=,726
Village zoning board of a
erroneously considered petitioner's ~
tion for a special use permit as
for variance, applied stricter standad
was warranted, and thus matter
remanded for consideration of
as one for a special permit, with b~
remand to consider whether
met standards preseribed by
since that would be tantamount
that special use was in harmony with
al zoning plan ami would not
affect ncighhorhoed.
Blasi & Zimmerman, Tarrytown
T. Blancato, Tarrytown,.of counsel
pellant.
Martin N. Leaf, Village Atty.,
on-Hudson, for respomients.
Before HOPKINS, Acting P.
MARTUSCELLO, MARGETT, RABDI
HAWKINS, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to CPLR
78 inter alia to review a determinati0~O
the respondent Zoning Board of
which, after a hearing, denied
application for a special use permit, he ~
peals from a judgment of the
Court, Westchester County, dated Mardl
1976, which dismissed the petition.
Judgment reversed, on the law,
costs or disbursements, and
ed to the Zoning Board of
new determination in accordance
The Zoning Board of Appeals
considered petitioner's application for a
cial use permit as an application for a v
ante. The board thus applied a
standard than was warranted.
ly, we remand the matter to the board
consideration of petitioner's apl~
one for a special permit. On
board shall consider whether the pmp0sd
use meets the stamlards prescribed I
ordinance, since the "inclusion of the p~
O
I
~officer
math
asI~
of
for ;
ORZA v. KELLEY
use in the ordinance is tantamount
! & legislative finding that the permitted
in harmony with the general zoning
and will not adversely affect the
(see Matter of North Shore
House v. Board of Appeals of Inc.
30 N.Y.2d 238, 243, 331
645, 649, 282 N.E.2d 606, 609).
863
police commissioner, without setting forth
any reason, dismissed petitioner from his
position as police officer and suspended oth-
er officers for ten and 20 days, penalty of
dismissal would be deleted and matter re-
man(led for reconsideration and explanation
by commissioner for difference in punish-
ment imposed on petitioner.
53 A.D.2d 671
In the Matter of Anthony ORZA,
Petitioner,
R. KELLEY, Commissioner of
of the County of Suffolk, et
al., Respondents.
Court, Appellate Division,
Second Department.
June 21, 1976.
Articte 78 proceeding was brought to
of county police eom-
fimling petitioner guilty of Inis-
g him from position as
officer. The Supreme Court, Ap-
Division, held that punishment im-
petitioner for conduct unbecoming
i. afficer should be reconsidered in light of
meted out to other police
in incident which gave rise
a as modified confirmed
remanded.
~=~67
: Where hearing officer recommended
suspended from his posi-
police officer for period of 28 (lays,
same punishment for second
officer involved in incident which
of comluct unbecoming
Ilaffieer and recommended 14-day suspen-
for third officer involved, and county
Cruser & Hills, Riverhead (Edgar Hills,
Riverhead, of counsel), for petitioner.
Howard E. Pachman, County Atty.,
Hauppauge (John N. Prudenti, Shirley, of
counsel), for respondents.
Before LATHAM, Acting P. J., and
MARGETT, DAMIANI, RABIN and SHA-
PIRO, JJ.
MEMORANDUM BY THE COURT.
Proceeding pursuant to CPLR article 78
to review a determination of the respondent
Police Commissioner, dated January 15,
1976, which, after a hearing, found petition-
er guilty of certain charges of misconduct
and, inter alia, dismissed him from his posi-
tion aa a police officer.
Petition granted to the extent that the
determination is modified, on the law and
in the interest of justice, by deleting there-
from the penalty of dismissal imposed on
the charge of conduct unbecoming an offi-
cer. As so modified, determination con-
firmed, proceeding otherwise dismissed on
the merits, without costs or disbursements,
and matter remanded to the commissioner
for reconsideration of thc punishment to be
imposed upen the aforesaid charge in ac-
cordance herewith.
In our view the punishment imposed on
the petitioner for the charge of comluct
unbecoming an officer should be reconsid-
ered in light of the lesser punishments met-
ed out to the two other police officers in-
volved in thc incident which gave rise to the
charges against the officers. The hearing
officer recommended that the petitioner be
suspended for a period of 28 (lays. This
was the same punishment as was recom-
mended for a second police officer involved,
112
437 NEW YORK SUI'PI,EMENT, 2d SERIES
pellate Division, hehl that trial court's
charge impermissibly served te place bur-
den upon defendaot to prove truth of his
alibi.
Judgment reversed and new trial or-
dered.
Criminal Law ¢=778(8)
In prosecution which resulted in convic-
tion of two counts of attempted robbery in
the first degree and assault in the first
degree, trial court's charge impermissibly
served to place burden upon defendant to
prove truth of his alibL
William E. Hellerstein, New York City
(Andrew E. Abraham, New York City, of
counsel), for appellant.
Eugene Gold, Dist. Atty., Broeklyn (Alan
D. Rubinstein, Asst. Dist. Atty., Brooklyn,
of counsel), for respomlent.
Before MANGANO, J. P., ami GIBBONS,
GULOTTA and O'CONNOR, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of
the Supreme Court, Kings County, remlered
November 15, 1978, convicting him of at-
tempted robbery in the first degree (two
counts) and assault in the first degree, upon
a jury'verdict, and imposing sentence.
Judgment reversed, as a matter of di~re-
tion in the interest of justice, and new trial
ordered.
The trial court's charge impermissibly
served to place the burden upon the defeml-
ant to prove the truth of his alibi (see
People v. Jones, 74 A.D.2d 515, 425 N.Y.S.2d
5; People v. Griswold, 72 A.D.2d 778, 421
N.Y.S.2d 400). "A defendant does not have
to prove the truth of his alibi in any way"
(People v. Griswold, supra, p. 778, 421 N.Y.
S.2d 400).
We have considered defendant's remain-
lng contentions and find them to be lacking
in merit.
80 A.D.2d 899
In the Matter of PLUTO'S RETREAT,
INC., Appellant,
¥o
Armand A. GRANITO, Chairman, et al.,
Constituting the Board of Zoning Ap-
peals of the Town of Hempstead, Re-
spondents.
Supreme Court, Appellate Division,
Second Department.
March 23, 1981.
Article 78 proceeding was brought to
review determinations of town board of
zoning appeals which denied application for
special use permit. The Supreme Court,
N~sau County, Derounian, J., dismissed the
petition, and petitioner appealed. The Su-
preme Court, APl~llate Division, hekl that:
(1) findings in snpport of denial of special
use permit for animal care facility in busi-
ness zone adjoining residential area, that
propo,~d use wouhl create disturbing noise
uml odors, sewage overflow, ami condition
where dogs arriving at premises would re-
lieve themselves on the street, were not
supported by the record, but (2) remand
was required since board couhl impose rea-
sonable comlitions on the permit and there
had Izeen insufficient prcof submitted at
hearing with respect to applications as to
parking.
Petition granted; permit granted;
matter remamled.
I. Zoning and Planning ¢=,703
To sustain findings relied on by hoard
of zoning appeals in denying special use
permit, it was necessary that there he a
rational basis and substantial evidence in
the record.
2. Zoning and Planning ~=645
Fimtings in support of denial of special
use permit for animal care facility in busi-
ness zone adjoining residential area, that
PLUTO'S RETREAT, INC. v. GRANITe
proposed use would create disturbing noise
and odors, sewage overflow, and condition
where dog~ arriving at premises would re-
live themselves on the street, were not sup-
ported by the record.
3. Zoning and Planning ~=~384
In denying special use permit for an
animal care facility on grouml that pro-
pese(l use would create disturhing noise and
odors, beard of zoning appeals improperly
relied on results of inspections of other ani-
mal care facilities and comiitioas prevailing
at a certain restaurant, in light of evidence
that building in question wouhl be con-
structed so as to eliminate emanation of
any noise ami odors, ami absence of cviden-
tiary foundation to show that other facili-
ties referred to were comparable in design
and construction.
4. Zoning and Planning ~=~645
Mere speculation and conjecture were
not enough to support findings, in support
of denial of special use permit for animal
care facility, that there would he sewage
overflow and dogs relieving themselves in
the street upon arrival at the premises.
5. Zoning and Planning ~=~382
Board of zoning appeals, upon issuance
of special use permit, may impose upon
applicant any reasonable conditions which
are in conformity with the purpose and
standards of the ordinance.
Cohn & Foley, Bahlwin (William S. Cobh,
Baldwin, of counsel), for appellant.
W. Kenneth Chave, Jr., Town Atty.,
Hempstead (Deborah M. Martz, Hempstead,
of counsel), for respondents.
Before MANGANO, J. P., and GIBBONS,
GULOTTA and O'CONNOR, JJ.
MEMORANDUM BY TIlE COURT.
In a preceeding pursuant to CPLR article
78, inter alia, to review three determina-
tions of the Board of Zoning Appeals of the
Town of Hempstead, which, after a hearing,
113
inter alia, denic~l petitioner's application for
a special use permit, petitioner appeals
from a judgment of the Supreme Court,
Nassau County, dated May 22, 1980, which
dismissed the petition.
Judgment reversed, on the law, without
costa or disbursements, petition granted to
thc extent that the detorminationa are an-
nulled, the application for a special use per-
mit is granted and the matter is remanded
to the respondents for further proceedings
consistent herewith.
Petitioner, contract vendee of certain
property, made three applications with re-
spect to the use thereof. It sought: (1)
permission to use that portion of the prop-
erty located in the business zone as an
animal care facility; (2) a waiver of off-
street parking and for permission to park in
the front setback area; and (3) permission
to park in the Residence "B" Zone.
As to petitioner's application to use that
portion of {.he property located in the busi-
ness zone as an animal care facility, such
proposed use would include, inter alia, the
boarding of eats and dogs, grooming and
the retail sale of boutique items. It should
be noted that the property immediately ad-
joining that of petitioner to the rear is
entirely residential.
It should be emphasized that a special use
permit may be granted only upon the prior
approval of the Board of Appeals (see Town
of Hempstead Building Zone Ordinance,
art. 7 [§§ X- 1.0, X 4.4] and art. 12 [§ Z-5.0,
subd. c, par. 15]). Such approval, moreover,
is subject to a determination by the Board
of Appeals:
"1. That the use will not prevent the
orderly and reasonable use of adja-
cent properties or of properties in
adjacent use districts;
"2. that the use will not prevent the
orderly and reasonable use of per-
mitted or legally established uses in
the district wherein the proposed use
Is to be located or of permitted or
legally established uses in adjacent
use district~;
114
437 NEW YORK SUPPLEMENT, 2d SERIES
"3. that the safety, the health, thc wel-
fare, the comfort, the convenience or
the order of the town will not be
adversely affected by the proposed
use and ils location; and
"4. that the use will be in harmony with
anti promote the general purposes
and intent of this ordinance."
(Town of Hempstead Building Zone
Ordinance, art. 12 [§ Z-I.0, subd. B,
par. (a)]; Matter of Tandem Holding
Corp. v. Board of Zoning' Appeals o£
Town of Hempstead, 43 N.Y.2d 801,
402 N.Y.S.2d 388, 373 N.E.2d 282.
[1,2] In the instant matter, after a
hearing, the Board of Appeals in denying
petitioner's application for a special use per-
mit, determined that the stamtards set
forth in the ordinance had not been met.
Such determination was based upon a find-
ing that the location of petitioner's property
w~ neither suitable nor appropriate for use
as an animal care facility. In reaching that
conclusion, it specifically found that the
proposed use would create disturbing noise
and odors, sewage overflow ami a health
hazard, and a condition where dogs arriving
at petitioner's premises would relieve them-
selves on the street. To sustain such find-
ings, it is, of course, necessary that there be
a rational basis and substantial evMence in
the record (see Matter of Perman v. Board
of Appeals, Inc. Vii. of Sea Cliff, Nassau
County, 69 A.D.2d 882, 415 N.Y.S.2d 469).
An examination of the record, however,
fails to reveal any support for the findings
of the Board of Appeals.
[3, 4] The Board of Appeals ignored the
evidence that petitioner's building wouM be
constructed so as to eliminate the emana-
tion of any noise or odors. Rather, it ap-
parently relied upon the results of iaspcc-
tions of other animal care facilities and
conditions prevailing as to a restaurant
near petitioner's property. We deem such
reliance to have been improper. In order to
assess the effectiveness of the proposed con-
struetion of petitioner's building in elimina-
ting the emanation of any noise or cdor,
there is no doubt that comparison to similar
facilities may prove beneficial. However,
where, as here, no evidentiary foumlation is
established to show that such other facili-
ties arc comparable in design and construe-
tion, comparisons drawn ami inferences
raised will be of little or no weight. We
also find that the board erroneously deter-
mined that there wouhl be sewage overflow
and that (logs arriving at petitioner's prem-
ises would relieve themselves in the street.
Such fimlings cannot rationally be made in
the absence of any proof as to the same.
Mere speculation and conjecture are not
enough.
[5] Accordingly, the Board of Appeals
erred when it determined that the ordi-
hartco standards had not been met; the
special use permit should have been grant-
ed. We remand the matter to the Board of
Appeals for two reasons. First, the Board
of Appeals, upon issuance of the special usc
permit, may impose upen petitioner any
reasenahle conditions which are in conform-
ity with the purpose anti stamlards of the
onlinance (see Matter of Tandem ltohting
Corp. v. Board of Zoning' Appeals o£ Town
of Hempstead, supra; Matter of North
Shore Steak IIouse v. Board of Appeals of
Inc. ViL of Thomaston, 30 N.Y.2d 238, 331
N.Y.S.2d 645, 282 N.E.&I 606; Matter of
Hubshman v. Henne, 42 A.D.2d 732, 345
N.Y.S.2d 669; 2 Amlerson, N.Y. Zoning
Law and Practice [2d ed.], § 18.55, p. 74).
Second, there was insufficient proof sub-
mitred at the hearing with respect to peti-
tioner's applications as to parking. More-
over, the Board of Appeals appears to have
denied the application as to parking as aca-
demic in view of its denial of petitioner's
application for a special use permit. That
basis cannot now be sustained.
S~
tr
er
w
T(
pr
:ndment
the case
nesting
request
There
:r yin]a-
right to
inquiry.
: of the
,fficer's
in fact,
:~ (p. 19
ed that
hile he
~to the
quired
to the
'rment
~r the
denti-
natru-
~h the
ed to
:, the
leged
chicle
f the
erba-
~dant
:d to
~olice
iant.
~to
char-
oliee
"by
the
Nei-
TOWN OF GARD1NER v. STANLEY ORCHARDS, INC.
Cite as, Sup., 432 N.Y.S.2d 33S
show that thc police met the minimum stan-
dard of showing an articulable suspicion
based upon objective facts that unlawful
activity is afoot is fatal to this case. People
v. DeBour, 40 N.Y.2d 210, 386 N.Y.S.2d 375,
352 N.E.2d 562; People v. Howard, supra.
[9, 10] I find the officer's hearing testi-
mony concerning the defendant's alleged
"speeding" to be a patent endeavor to alter
the circumstances to justify the action
which took place. There was no valid basis
for the initial action of the police in de-
manding identification. People v. Ingle, 36
N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39;
Mimms v. Pennsylvania, 434 U.S. 106, 98
3.Ct. 330, 54 L. Ed.2d 331. The defendant
had the right to refuse to answer and to
seek to re-enter his vehicle. The "force" he
used, that is, by pushing by the officer was
well within the limits allowed by the law.
Section 35.27 Penal L~w, limiting the right
of the defendant to use force where an
arrest is unlawful, is not a complete bar to
the right of a defendant to the use of some
necessary force. People v. San:a, 37 App.
Div.2d 632, 323 N.Y.S.2d 632 (1970). The
purpose of that section is merely to prevent
street combat as a means of determining
the validity of an arrest. "A citizen may
use reasonable force in self-~tefense where
the force exerted by the police in effecting
an arrest is excessive." People v. Steven-
sen, 31 N.Y.2d 108, 112, 335 N.Y.S.PA 52, 56,
286 N.E.2d 445, 448 (1972). It is this
Court's opinion that the so-called "pushing"
of the officer by the defendant in trying to
regain entry to his vehicle was lawful con-
duct by the defendant who was being un-
lawfully detained, and is beyond the put-
view of Section 35.27 P.L. This is especially
true since there is no chargc before the
Court for any activity of the defendant
preceding the alleged "pushing."
That is not to say that any type of unlaw-
ful police action will permit defendant to
act in vindication of his rights in a primitive
fashion. There are circumstances which nc-
cur where the action of the defendant is so
free and independent of an unlawful deten-
finn by a police officer as to render any
connection between the lawless conduct of
335
the police and the discovery of the chal-
lenged evidence so attenuated as to dimin-
ish the taint. Wong Sun v. U. S., 371 U.S.
471, 83 S.Ct. 407, 9 L.Ed.2d 441; People v.
Townes, 41 N.Y.2d 97, 390 N.Y.S.2d 893, 359
N.E.2d 402 (1976); People v. Boodle, 47
N.Y.2d 398, 418 N.Y.S.2d 352, 391 N.E.2d
1329 (1979).
The defendant's lawful attempt to re-en-
ter his vehicle was blocked by the arresting
officer. (Again, this is the oft-encountered
situation of the officer attempting to vindi-
cate a perceived affront to his dignity.)
Though he was on active duty, the officer
was not actually performing an investiga-
tion or other similar police function and his
action here was not justifiable. As such,
the defendant's attempt to defend himself
in order to extricate himself from a poten-
tially combative situation was justified.
Accordingly, the arrest of the defendant for
harassment is suppressed, and the charge of
resisting arrest is dismissed since the arrest
of the defendant was not "authorized" pur-
suant to Section 205.30 Penal Law, insofar
as it was without probable cause. People v.
Lyke, 72 Mise.2d 1046, 340 N.Y.S.2d 357
(1973); People v. Alley, 76 Mias.2d 589, 350
N.Y.S.Zd 981 (1974).
105 Misc.2d 460
TOWN OF GARDINER, a Municipal
CoFporation, Plaintiff,
STANLEY ORCHARDS, INC., and
Stanley Cobh, Defendants.
Supreme Court, Special Term,
Ulster County.
Sept. 30, 1980.
Town sought to restrain defendants
from further preparation of a site located
on their real estate and from placement of
336
432 NEW YORK SUPPLEMENT, 2d SERIES
a mobile home on site. On motion of de-
fendants to dismiss, the Supreme Court,
County of Ulster, Leonard A. Weiss, J., held
that ordinance of town requiring permission
in writing from all landowners within 500
feet of boundaries of property on which a
mobile home was to be placed was unconsti-
tutional as an improper delegation of zon-
ing authority to private landowners without
adequate standards to insure that they
would not act in an arbitrary or discrimina-
tory manner by exeludlng others from us-
ing their land for a trailer while permitting
another seeking same general use to do so.
Motion granted.
1. Municipal Corporations m=,121
Failure to make application to town
board for a waiver of requirement in ordi-
naace that permission be obtained in writ-
lng from all landowners within 500 feet of
boundaries of property on which a mobile
home is to be placed did not operate to
preclude a challenge of constitutionality of
ordinance on grounds of due process and
equal protection inasmuch as challenge,
based solely upon language contained in
ordinance, was to be distinguished from a
challenge to application of ordinance in a
specific situation. Const. Art. 1, §9 6, 11;
U.S.C.A.Coast. Amend. 14.
2. Zoning and Planning ~=,648
Any party who seeks to attack the con-
stitutlonality of a zoning enactment has a
heavy burden to overcome an exceedingly
strong presumption of constitutionality.
3. Constitutional Law ~e~213.1(2), 251.3
A classification scheme devised by a
local legislature must bo sustained against a
challenge based on due process and equal
protection if it is reasonably related to some
manifest evil which need only be reasonably
apprehended. Const. Art. 1, 99 6, 11; U.S.
C.A.Const. Amend. 14.
4. Zoning and Planning ~=~27
If on any interpretation of the facts
known or reasonably to be perceived, a zon-
lng measure falls within embrace of a
town's authority to regulate property as a
means of promoting general welfare of
community, that measure is insulated from
attack. Const. Art. 1, 99 6, 11; U.S.C.A.
Const. Amend. 14.
5. Zoning and Planning e=~.43
Ordinance of town requiring permission
in writing for all landowners within 500
feet of boundaries of property on which a
mobile home was to be placed was unconsti-
tutional as an improper delegation of zon-
ing authority to private landowners without
adequate standards to insure that they
would not act in an arbitrary or discrimina-
tory manner by excluding others from tm-
lng their land for a trailer while permitting
another seeking same general uso to do so.
Const. Art. 1, 99 6, 11; U.S.C.A.COast.
Amend. 14.
6. Zoning and Planning
The fact that local law vested town
board with discretion to waive requirement
in ordinance of permission in writing from
all landowners within 500 feet of bounda-
ries of property on which a mobile home
was to be placed did not remove require-
merit and, hence, did not remove constitu-
tlonal infirmity which made requirement
void on its face. Const. Art. 1, 99 6, 11;
U.S.C.A.Const. Amend. 14.
Norman Kellar, Kingston, for plaintiff.
Rider, Drake, Weiner & Loeb, P. C., New-
burgh, for defendants.
LEONARD A. WEISS, Justice:
Plaintiff, Town of Gardiner, seeks a pre-
liminary injunction under CPLR Section
6301 to restrain defendants from (1) further
preparation of a site located on their real
estate in the Town of Gardiner for con-
stroction of a mobile home and (2) the
placing of a mobile home on this site.
Defendants, Stanley Orchards, Inc. and
Stanley Cobh, cross-move for an order di~-
missing plaintiff's complaint on the grounds
that the Town of Gardiner Local Law No. 3
for the year 1972 which defendants are
allegedly violating is unconstitutional under
both the New York and United States Con-
are of
I from
S.C.A.
~ission
n 500
hieh a
:onsti-
f zon-
ithout
they
mina-
itting
~o so.
~onsL
town
ment
from
Inda-
uire-
~tltu-
~ent
ltiff.
~Tew-
pre-
tion
~her
real
the
~ite.
and
nde
o. 3
are
der
on-
TOWN OF GARDINER v. STANLEY ORCHARDS, INC.
Cite a~, Sup., 4,12 N.¥.S,2d aSS
stitutions rendering said Local Law unen-
forceable and thereby requiring this court
to vacate any temporary restraining order
and denying any requests for a preliminary
injunction.
Defendants own property in the Town of
Gardiner. On March 20th, 1980, the de-
fendants filed an application for a building
permit with the Town Clerk for the Town
of Oardiner seeking permission to place a
mobile home on a parcel of land they own
which is not part of a mobile home park or
u mobile home subdivision. The defendants
never filed with the Town Clerk, or any
other official of the Town, "Permission in
writing [from] ail land owners within 500
feet of the boundaries of the property on
which a mobile home ia to be placed" which
}~ required under the provisions of Town of
Gardiner Local Law No. 3-1972, Section 20.
The Gardiner Town Board considered de-
fendanta' application at its May 13th, 1980
meeting and unanimously refused to issue
the building permit. On June 10th, 1980,
the defendants again appeared before the
Town Board and were informed that if they
placed the mobile home in a less objections-
hie place on their property, they might be
granted the permit. In July, 1980 the Su-
[~rviser for the Town observed that at the
~ite where defendants had requested a
building permit, electricity was brought in,
a ssptie system was being installed and a
well wa~ in the process of being built. On
July 16th, 1980, Mr. Justice Aaron E. Klein
oi' this court signed an order to show cause
eeeteining a temporary restraining order
for the Town which enjoined the defend-
ant' from further preparation of the site
from placing a mobile home on the site
pending hearing and determination of the
Town's underlying' action for a permanent
injunction because defendants were in rio-
lation of the provisions in Local Law No. 3
for the year 1972.
In support of its application for a prelimi-
mary injunction, the Town urges (1) it has
met its burden of proof that the defendants
~ve acted in violation of Local Law No. 3
for the year of 1972 and that the prelimi-
mry injunction is required to prevent fur-
thor injury to the plaintiff which would
337
result if the defendants continued to act in
disregard of said Law; (2) that the defend-
ant's answering affidavit admits that he
has not complied with the subject Local
Law and has made no allegation or showing
of injury because the defendants have been
restrained from preparing the site for the
installation of a mobile home; (3) that tho
purpose of preserving the status quo will be
served if this court grants a preliminary
injunction; (4) that there is a presumption
of constitutionality which the defendants
have not overcome in seeking to have Local
Law No. 3 declared unconstitutional; and
(5) that the defendants have failed to ex-
haust their administrative remedies, mak-
lng this proceeding premature, because they
did not make any effort to apply for a
waiver to the Town Board as they are per-
mitted to do under Section 22 of Local Law
No. 3-1972 for the Town of Gardiner.
Defendants urge that (1) the Gardiner
Local Law is an unconstitutional violation
of the defendants' right to due process and
equal protection under the Fourteenth
Amendment of the United States Constitu-
tion and Article 1 Section 6 and 11 of the
New York State Constitution because the
health, safety and general welfare of the
citizens of Gardiner is not served by the
grant of authority to private landowners in
the subject local law to determine whether
another property owner can make use of his
land in a manner which is not potentially
dangerous or offensive to other residential
uses; (2) that the subject Local Law vio-
lates equal protection because it provides
for the possibility that one landowner who
is surrounded by consenting neighbors will
be able to place a mobile home on his land
whereas another landowner who is not sur-
rounded by consenting neighbors will not be
able to make such use of his land and that
this distinction is wholly without rational
basis or relationship to the Town's police
power; and (3) that the absence of stan-
dards or guides in the Local Law which
accompany the delegation of authority to
private citizens to block issuance of a trailer
permit is violative of the due process clause
ia the Fourteenth Amendment as an uncon-
338
432 NEW YORK SUPPLEMENT, 2d SERIES
stitutional delegation of governmental pew-
er to private citizens.
In reply to the defendants' arguments,
the Town urges that Local Law No. 3, when
read in its entirety, suffers from no consti-
tutional infirmity because Section 22 ex-
pressly reserved to the Town Board the
authority to waive, subject to appropriate
conditions, any of the requirements set
forth in the Law. Defendants, in their
reply to the plaintiff's main contentions,
urge that they have standing to challenge
the constitutionality of the Local Law on its
face ns part of their defense and counter-
claim to plaintiff's action for injunctive re-
!ief and that the doctrine of exhaustion of
administrative remedies does not bar them
from seeking dismissal of the complaint ns
they request in this motion.
[1] Initially, this court considers wheth-
er the defendants' failure to make applica-
tion to the Town Board for a waiver pursu-
ant to Section 22 of the Local Law operates
to bar the defendants from attacking the
constitutionality of the Law which they are
allegedly violating. New York courts
which have considered challenges to zoning
enactments on constitutional grounds have
distinguished between challenges to the en-
actment based solely upon language con-
tained in the statute which can be brought
by any adversely effected property owner
and challenges to the application of the
enactment in a specific situation which can
only be brought by an adversely effected
property owner who has exhausted all ad-
ministrative remedies provided in the zon-
ing statute which he finds objectionable.
In Levitt v. Inc. Vii. o£ Sands Point, 6
N.Y.2d 269 and 273, 189 N.Y.S.2d 212, 160
N.E.2d 501, the Court of Appeals said:
"We disagree, however, with the opinion
of the Appellate Division insofar ns it
held that plaintiffs were precluded from
raising the issue of confiscation by their
failure to apply for a variance under the
provisions of the ordinance. The theory
of this action is that plaintiffs are enti-
tied as a matter of right to a judgment
declaring the unconstitutionality of the
ordinance; they do not ask for the relax-
ation of an assumedly valid regulation
(citations omitted)."
Also see Polak v. Kavanah et aL, 48 A.D.2d
840, 368 N.Y.S.2d 563. In Janas v. Town
Board, 51 A.D.2d 473 at 476, 477, 382 N.Y.
$.2d 394 the Appellate Division Fourth De-
partment expressly found that it could not
consider plaintiff's argument that the ordi-
nance as applied to him was unconstitution-
al because he failed to exhaust his admini~-
trative remedies provided in the ordinan~
but, went on to consider plaintiff's conten.
tlon that the ordinance was unconstitutlon-
al because it required that a "[r]equest for
[a special] permit must be accompanied by
written approval of a majority of adjoining
property owners (including property owner~
across the road)." Following the principles
established in Levitt~ supra, Polak, supr~
and Jau~s, supra, this court finds that de-
fendants' failure to apply to the Town
Board for a waiver in accordance with
Gardiner Local Law No. 8-1972, Section 22
does not preclude this court from consider-
lng the defendants' challenge to this Local
Law which is based on the contention that
this law is unconstitutional on its face. Ac-
cordingly, plaintiff's motion to dismiss the
defendants' affirmative defense and coun-
terelaim on the grounds that the defendants
have failed to exhaust their administrative
remedies is denied.
The court now turns to consideration of
whether the Local Law which the defend-
ants are violating is unconstitutional. The
Town of Gardiner Local Law No. 8-1972
Article IV says, in relevant part:
"Section 20. Mobile Homes on Individual
Lots. No mobile home shall be located in
the Town of Gardiner except in a mobile
home park or mobile home subdivision
approved in accordance with the provi-
sions of this ordinance unless permission
is granted in writing from all landowners
within 500 feet of the boundaries of the
property on which a mobile home is to be
placed. However, this shall not apply to
any mobile home in existence within the
Town before the effective date of this
Local Law as long ns it remains in the
same location. Violation of the provi-
TOWN OF GARDINER v. STANLEY ORCHARDS, INC.
Cite ss, Sup., 432 N.Y.S.2d 335
sions of this section shall be deemed to be
an offense punishable by a fine not to
exceed Fifty Dollars ($50.00) per week
that the violation remains.
Section 21. Separability of Provisions.
Should any section or provision of this
Local Law be declared by a court of
confident jurisdiction to be invalid, such
decision shall not effect the validity of
this Local Law as a' whole or of any part
or prevision thereof, other than the part
so declared to be invalid.
Section 22. Waivers. The Town Board
may waive, subject to appropriate condi-
tioas, the provisions of any or all such
improvements and requirements as in its
judgment of the special circumstances of
a particular property are not requisite in
the interest of the public health, safety,
and general welfare or would cause un-
usual hardship, provided that the public
interest is protected in a development as
in keeping with the general spirit and
intent of the regulations set forth in this
Local Law. Any request for waiver of
any requirements set forth in this Law
shall be reviewed by the Planning Board
in conjunction with its site plan review in
accordance with the conditions set forth
in ~ection 11. The Town Board shall
reverse a recommendation of the Plan-
ning Board with regard to waiver of re-
quirsments only by a vote of at least a
majority plus one."
~ Defendants' main contention is that a
provision of Section 20 which requires all
t*ndowners within 500 feet of the bounda-
~ of the property on which a mobile home
Js to be placed to give written permi~ion,
|nvalidatez the entire Local Law because
such requirement is an impermissible dele-
gation of government authority by the
Town to private property owners without
~tandards to insure the proper exercise of
that authority. Defendants also suggest
iht ~ection 22 of the Local Law which
ImrP°rtz to give the Town Board authority
'lo waive any requirement of the Law, in-
duding the requirement of unanimous con-
~nt by property owners who live within
MO feet of the boundaries of land where a
mobile home is to be placed, does not cure
339
the constitutional defect contained in Sec-
tion 20 and, that Section 22 itself is uncon-
stitutional because it does not contain adc-
quately defined standards t9 guide the
Town Board in the exercise of its discretion
to grant waivers from the requirements of
the Law.
[2-4] Any party who seeks to attack the
constitutionality of a zoning enactment has
a heavy burden to overcome what has been
described as "... an exceedingly strong
presumption of constitutionality ..."
Huntington v. Park Shore, 47 N.Y.2d 61 at
65, 416 N.Y.S.2d 774, 390 N.E.2d 28P, Un-
der Huntington, supra, the defendants here
shoulder "... the very heavy burden of
demonstrating beyond a reasonable doubt
that the [Local Law is ] violative of [the
Constitution] (see Wiggins v. Town o£ Sore-
ers, 4 N.Y.2d 215, 218, 173 N.Y.S.2d 579, 149
N.E.2d 869). Viewed from another perspec-
tive, the classification scheme devi~l by
the Local Legislature would have to be
sustained if it could be said to be 'reason-
ably related to some manifest evil which,
however, need only be reazonably ap-
prehended' (Lighthouse Shores v. Town o£
Islip, 41 N.Y.2d 7, 11, 390 N.Y.S.2d 827, 359
N.E.2d 337). Thus, if on any interpretation
of the facts known or reasonably to be
perceived, the zoning measure falls within
the embrace of the Town's authority to
regulate property as a means of promoting
the general welfare of the community
(Town Law § 261), it is insulated from
attack." Huntington, supra, 47 N.Y.2d at
65, 66, 416 N.Y.S.2d 774, 390 N.E.2d 282.
In this case, it appears that defendante
have sustained their burden of demonstrat-
ing that Local Law No. 3-1972 is unconsti-
tutional. The provision in Section 20 of the
Local Law at issue which require~ unani-
mous consent of adjoining property ownere
before a permit to place a mobile home on
property whose boundaries are within 500
feet of the adjoining landowners boundarie~
is commonly referred to in New York cases
as a "consent requirement." Good summa-
ries of the principles with regard to the
constitutionality of consent requirements in
340
432 NEW YORK SUPPLEMENT, 2d SERIES
zoning enactments can be found in Jan~s v.
Town Board, 51 A.D.2d 473 at 477-480, 382
N.Y.S.2d 394 and, Bashant v. Walter, 78
Misc.2d 64 at 6749, 355 N.Y.S.2d 39. In
Jan~z, supra, a consent requirement was
one of five standards set forth in a Town
Zoning Ordinance governing the iastalla-
tion of mobile homes. In Janz~s, supra, the
statute provided that "Request for a permit
must be accompanied by written approval
of a majority of adjoining property owners
(including property owners across the road)
and must show location, type of mobile
home, and reason for request." The Appel-
late Division Fourth Department found this
consent requirement to be unconstitutional
even though the ordinance specifically pro-
vided that applications for mobile home per-
mits may only be granted by the Board of
Zoning Appeal and the plaintiff never ap-
plied to that administrative body. In Ja-
nas, supra, at 478, 382 N.Y.S.2d 394 the
court referred to the principles established
by the Court of Appeals in Matter o£ Con-
cordia Coll. Inst. ~,. Miller, 301 N.Y. 189, 93
N.E.2d 632 which held that mandatory con-
sent requirements in a zoning enactment
which contains no guide or standards and
refers to no rule whatsoever with which to
judge the propriety of withholding consent
have the effect of impermissibly delegating
to one set of owners the authority to deter-
mine the kind of use another set of owners
may make of their property. Significantly,
the courts in beth Concordia, supra and
Janas, supra, held that consent require-
meats which wholly lack standards or
guidetine~ may be proper when the pro-
posed use to which the requirements at-
tached is "... offensive, such as auto ga-
rages and billboards ...' but, that the pro~
posed use of property as a mobile home
park or for placement of a mobile home
does not qualify as an offensive use because
it has been that said use is residential in
nature and not potentially dangerous to
other residential uses.
[5,6] Applying the principles estab-
lished in Concordia, supra, Janas, supra, and
Bashant, supra, this court first determines
that the use, installation of a single mobile
home, is not a "nuisance" per se or "offen-
sive." In reviewing the consent require-
ments in the Local Law, the court finds
totally lacking any standards to guide the
neighboring property owners in the with-
ho]ding of their consent. In this c~ze, the
consent requirements are particularly stria-
gent in that they require the unanimous
consent of all property owners whose land
is located within 500 feet of the property to
be used for the mobile home when com-
pared to the consent requirements in Con-
cordia, supra, [which held unconstitutional
consent requirements by eighty percent of
the surrounding landowners for an admini~-
trative variance to erect or alter a building
for education use], Jan~s, supra [which held
unconstitutional consent requirements by a
majority of adjoining property owners in-
cluding property owners across the ro~d], or
B~shant, supra, [which required the censsnt
of at least the majority of the abutting
property owners]. In view of these cases,
this court finds that the Local Law at issue
must be held unconstitutional as an improp-
er delegation of zoning authority to private
landowners without adequate standards to
insure that the landowners will not act in
an arbitrary or discriminatory manner by
excluding these defendants from using
their land for their trailer while permitting
another seeking the same general use to do
se. In the absence of standards to guide
the neighboring property ownerz in the ex-
ercise of their authority the Local Law is
clearly an unlawful delegation of legislative
or governmental authority to individuals.
The fact that ~ection 22 of the Local Law
vests the Town Board with discretion to
waive the r~luirements of Section 20 do~
not remove those requirements and, ther~
fore, does not remove the constitutional in-
firmity which makes the consent require-
meat and the Local Law void on its face.
After extensive research, this court has
been unable to find a New York c~ee which
would uphold the constitutionality of the
unanimous consent requirement in the
Local Law at issue merely because the leg-
islative body retained the authority to
waive these requirements.
· Base
court ]
tained
quirem
Exerei:
tion 10
this ac
meat ~
defend
able.
dismis.~
motion
hied, a
effecti'
ia dia~
party ~
PI:
for Io~
an acoi
meat
Bingha
thew ~
lacked
Was no
eat of
ance I~
claim (
eruing
Courts
tion ov
HOWARD v. GOVERNMENT EMP. INS. CO.
Cite as, City Ct., 432 N.Y.S.2d 341
Based on the foregoing analysis, this
court finds that the defendants have sus-
tained their heavy burden of demonstrating
the unconstitutionality of the consent re.
quirements in the Gardiner Local Law.
Exercising its authority under CPLR Sec-
tion 103 subd.(c), this court hereby converts
this action into one for a declaratory judg-
ment and holds that the Local Law which
defendants violated is void and not enforce-
able. It follows that defendants' motion to
dismiss the complaint is granted, plaintiff's
motion for a preliminary injunction is de.
hied, and the temporary restraining order
effective only until the date of this decision,
is dissolved.
All requests for any other relief by either
party are denied.
IO5 Misc.2d 489
Kenneth HOWARD, Plaintiff,
GOVERNMENT EMPLOYEES
INSURANCE CO. Defendant.
City Court of Binghamton,
Small Claims Part.
Sept. 30, 1980.
Plaintiff brought action against insurer
for loss of use of his automobile arising out
an accident after plaintiff obtained a judg-
ment against defendant's insured. The
Binghamton City Small Claims Court, Mat-
thew J. Vitanza, J., held that the Court
lacked jurisdiction over insurer since there
was no notice of claim sent to superintend-
ent of insurance as required by the Insur-
ance Law and since service of notice of
claim could not be made under rules gov-
erning service of process of Small Claims.
Dismissed.
Cour~ ~175
City small claims court lacked jurisdic-
tion over foreign insurer since there was no
341
notice of claim sent to superintendent of
insurance as required by the Insurance Law
and since service by registered mail to in*
surer in care of local insurance firm
through whom the policy was obtained did
not comply with jurisdictional requirement
of the Uniform City Court Act. N.Y.City
Civil Ct. Act, § 1801; Insurance Law §§ 59,
59-a.
Chernin & Gold, Binghamton (John P.
Rittinger and Martin J. Kane, Binghamton,
of counsel), for plaintiff.
DECISION
MATTHEW J. VITANZA, Judge.
The plaintiff sue~ the defendant for dam-
ages in the sum of $670.16, pursuant to
§ 167(1)(b) of the New York State Insur-
ance Law, for the loss of use of his autome.
bile arising out of an accident which oc-
carted on November 8, 1979, on Lewis
Street near its intersection with Fayette
Street in the City of Binghamton, New
York. It appears from the to~timony that
the plaintiff obtained a judgment against
the defendant'e insured for the above
amount. That subsequent to entry of the
judgment, the defendant was informed of
the fact that the plaintiff had obtained a
judgment against the defendant's insured
and a demand was made for payment. The
defendant has neglected or refused to pay
the judgment against their insured and the
plaintiff filed his claim in Small Claims
Court.
At the hearing heroin the defendant de-
faulted in appearance. However, the court
question is whether Small Claims Court was
the proper forum to bring this action pursu-
ant to § 167(1)(b) of the Insurance Law.
The defendant herein is a foreign corpora-
tion. Service in this case was made by
registered mail to the defendant in care of
Smith, Wilson Bros. lnsurists, Inc. a local
insurance firm through whom the policy
involved in this case was obtained. There
was no evidence presented that Smith, Wil-
son Bros. Insurists, Inc. was a subsidiary of
the defendant. The plaintiff in attempting
to comply with the jurisdictional require-
flint the evk~ence of the co,~versaL[on .h:td w[ih !>sterne
co..t:,t.:~uted 4u a~suz,ance of sa:'etv (Zur~.c'A
....... woy.k prog~rcss (/lanieR v.
:~o!!ewe~! a fy>' and comprehensive chP. r~e to wb2ch ,.o
same tokev, defendmt's corten~;nu ' ~ ' ''
............. t~,v,~ %o,/nti~ was
cont~zbu%ry ~eg.Et~cnee r,s a matter of !aw cannot be
iht. ~.aller ' ~ to obey it e,mL if he stay,~ wi!h;n thc
<),.e revewa'. [:., ' ....
rcw'-:."tC Prnc A 02/
s;,ou.d % reversed and a new tffa! g-anted,
-~aOUOI?AAr, ~]1. 'r ;~EW[S, CO-~WAY, DF.S~,!O3ID, *;'ULD
.J FO, SSB:., ~J~,, eoI!e~ir.
1950.1 State,ne.o, of C~'~. {:~! N. Y. I
_ Irt tho Matter of Coscom,~a Co~m,,,ui,,r~ Iss:r,'rwrv,, Ap,,~ila
figairtst Ru~ezt N. MmL~b as Superintendc.t of BuihI~
' oJ~ the Village of BronxvUb~, Itcspo,,dent
Argued ~ay ~', 1950; deei,h.1 J.ly 11, 1~50.
(1) amendmen~ ~o ~age zoning o~'.inaaco which provided for
vari~.uso in residence dis~r~ct ~y boar4, of appeals ~ permit eraetb,u O'
for etbxcaqion~2 ~u~poqq upon !}liaff of con,m~t of ~0% of owners of
prope~y, J~H4; no triable issue of fact preaen*~; appYeat/on for
. directiu~ i~3ganca of permit for erection of ~chool huihling~ ~rat,t~ ~)
of ordinance would 50 %br.t ~.tl}-btl.~ ~r.lp.rt~ ow~or~ could doterm~
tlo~ of boar~ Of a~pea!~ Drovided~ (4) uot nec,ma;~ry to seok reDof
Lnvalid ~mend~en~ or to show hardsldp under section l'10-b of Village
(5} }ro~.do~.s 0f ~Hor ord.i~l~c~ perntgg!.ng ore.ion of !,uild{~ for
1. A vH!~, in which au etlueational i.Mitution had eo,ttin.ous'y ,,wned
[b])~ ~n 194~L th{a provJ~[,m was r,3,,;Mc,l .U,I the zo.ing onli.an{~ .mca
,to pmvlde (ark lt~ ~ 7, subd. [ 'J) tl,tt a v.,.b.,c~, mighl. }m I.~r.dft,,d J
bu;!dhlff ft,r e, hmnf,;otut[ pur{.,ses p,'ovhh,,~ ,:,,ns,.}t~ w,'rc ~1,',{ .f ~0'~f.
i'~a~t is presenCed~ petkio~mr's .l,plie.ti,m for a. urder directing flint
ing permit 2ur the erection of additbm:d schoo{ buiblinga he ism~ed
erects! ~q a mater of right in nny o~ the ri,aide.ce districl~, e,.,tprising
of t~e vi~g~ tertiary. The ren,aining 3% is not o.ly not availabte foe
u~ bul wo.!d be impraetl,m! for it. A muaY ntmdwr o~' a,lfifi.ing
~m,nunity.
3. The o~in~eo is bt~a]kl also in that it provides ,,o st. ndards or
for tho exemise o~ the d~creJon o¢ the board of .ppe. l. in epprovi.g
lng edueaUond usen:
l~ 'ANi "hiv ~ "m),~'PF~'~(I '~ ,~'~ap.v~l Jo ~Hu~ 19~I 'd '['po
('909 'h 'N 01'~ 'UO[; '~G 'ddV ifa ql~'lU~i
~.iuO.)~). u:,,tmql).,o mil o.i.niA~ 'Iii OIL '~
p~voi[ 'a lioa~l Jo ~,.,llVlu iL:a 'j~ 'N i~
I J(' /OKi ',x .tm)/)poi/ ~gli~: 'g 'Fi ~Lg "%9 liIlOall ~alqm~
~[ ]o al/O/iL [ ~ 'A 'N leg 'lt,)?.~'rt[[ 'A U.tlOSJl'n,Al Jo
A h m,,, 'l.{oo iitl;I gt"'{qllL4t 'a 'oD
a..[ 'o66 A N 6Lg 's'vo~ 'a liv~ Jo ~O~u~
~' '~a~l, ul~ 'a 'a. fmI ~vxoa, rxoO Yxauoo$lo~ ~o ~v~
('LgT
.. '.d ~ '~ 'fi g~g 'oi;.~aqo,q 'a 'oD /"~:"w,
998 's'~a~x?,g fo
:)]/f°uZq 'i..- a,~ '.o/,),.,Tsoa~) ,,.~, ~ , ~. . ~ ....
~'a~'~aoa:p ~aV
'p%unoD jo ~mo,t
',~ N Y. lr~9! Oginion~ ?y Fao~.;s~, J. [July,
i,rograrn and of eree!'!ng thereon sueb bu:!db,gs as from time to
~'? ;¢; !ll~g}t~,
deem necessary. As a duly eh.tiered vreparatory
school a~d ~un~or eoPege, with nearly three hm~d~ed fag-time
stvden%, ;.~s fa&;Rh~s have b.eome hmdeqaate and it is neces-
sary ~]m5 R expand. It has thus far htvested upwards or a
l~on and a half do:tars in ~}fis p,'operty, dud has ,rovkded addi-
tions' funds for ~he erection of new sehoo! bui!di~s on its pres-
ent ca~vpvs a;% ~n fl~rthcranee of ~he req,~remon~ and rides of
,.c-c~e. The sm'rou~(~L~g m,~.q'J]bt, r]t(:o(~ ~s pow b~It up with
Tv. 29:)~ thc V~5~go (,t' ~ro.~xv?le emm'.o,~ a zo,ffng ordinance
ness d'~w~e;s. ~?ct~Uoncr'~ propor~y.was placed b~ a residence
expressly ~erm~t~ed by t% ord;:~ance (art. 3, ~ ~, subd. [b])
re~;~d.ence d.~s ~r}.c~. On ?ehyuary ~0, :94~,'a~
zoner.2' ordbvmce wr.s ado?:ed, repea!h~ff ga;4 su~:,d~v~s~on (b),
e,nd ~,: ~'aee C~9reof a,:db:~ snbq.:~s:on (f) to sect:on 7 of
a:'::c:e :2 o' the o-dknanee ::roy!ding fo-" Vv.r:ances" which
m~V- bo permitted, by the board of appeals, as follows:
"(!') Pe"m!~ :n a'~y res[de~ee ,Us~rict the e~:,?cfiou oc alteration
of a ~m~db,.g for educational, reI~g~ou~ or e'.eemosynary
poses and t}~e use of premises for s~ch In?poses provide~ the
petRioner fi~es khe consents dtdy acknowled~;ed of S9% of the
owners of ?oper~y fronting on the streets enclosing the block
w?JZ.n w}~:ch U. e s the ~roperty :n~ended for ~uch use."
As a r,~suff <C ~hls amc,id-noun, assmnln~ R to be valid, no
eduea~io~aI buUd:,;~ may be ereet(,d :ma matter of r~ght on
petitioner's property, nor indeed in afy of the residence
trlcts which comprise 97% of the vUlage territory. The remain-
ln~ ~% ~ a very sma2 area ~f about nineteen acres bordering
l~.alh'oad ,raj s:Luafe,! at (.}t(~ other end ,)f U.~ viltage -- is zoned
for bv.s;uess, and ~o land is available in tha~ area; but, even
cedi'ruble, ~t wou!d be quite b,,praet~eahlc for pet;ironer to use
any e~' .,~¢,:, p,'operty. 'Ph,,s 'mtlt;o,,e,. ;s h, eff'oe~ m'ecluded
D'em ereeth~g italy school bu:!db~ in the tmtkre village as a
-na~te- of r;g;:t, and, wb;Ic boarding 1rouses, m.l~ifamP, y houses,
1~0.} Opinion, l~r l,'ao~.sa~% ,I. !;lO! N..Y~.
hospitals and hotels may be erected in rosme,tce cas~r~!
schools and churches ,uay not.
On or about July !, 19-~8, ~,.titi,mcr filed p!aus and specifl
fions for ~e new school library, science buildi.g and audited
on its camvus s~.te and apl,lied fo,' a permit, tles~),mde. L dee
the applidation up<m thc gro..d that the uses o~ thc propo
new buildings were' not n.rmitt,,d.
In this a'tlde 7R pro~(~edi,~, vetitioner seeks a maadat~
order directbt~ rosDond,mt to issue a p.,'mlt t. ,~reet tho'
posed };uild;pg~. (.h, th~ Td,.atlh~ga nn(1 it(~(.mq)lmylng
S,.,,c;a! Term, upon respondc,d.'s moli,m to ,lis[,,?$ g,'oundo
'~ ~ · ' - . ~ r' )1 iss.o (, act was r~
!e~a: msug~c!eney, held ti ,t., nc t. mi e
dcaied the relief sought, and dismissed thc pvo(tt,,~(~;ng °l
merits; the A~pe!late l)ivlalon nnan;mous~y afllrmt,&
Petitioner's-proposed use is clearly ~.)t a Ve,-,n;!h,d usa
~e amended ordinm.:e, fo% co,~codedly, its property is v
a residence" A "district. There ia no iss.e hotw,.en the i
as to ~e right of the village to r,,g.!ate and r,,atrict th. lees
and use of buildings, strvctvrez and land for tmtd%
,.osidence or other purvos(,z fo, 01, pill posl~ OJ
health, safety, laorltls, or tim g(,ueral well Itre of tile
(Village Law, ~ ~75). Petifio.cr, ]owo~er, chalhm~es
eonstktationality of the zo,,,,)~ ame,t(h.(.,t t lo~ ~¢,(
are !0, 194!, iasofar as iL affects petitioner, ut,on the
~]~;t~ ~t ~s arbitrary, unreasomd0c a.a .o.fisea%ry ae,1 vid
rite Fourteenth Amendment or the Conat~tuti,m o~ ~l~e U
States am! section 6 of article ~ of our ~tate Co.atitutim
contends (l) tba~ ~he provls;on rt~,.~iring consents from
empowere(~ t,~ (,o6~:lder a~ app';e.q,-,, impo~,.s~ r,
on an inoffensive and !e~itimate nsc of prop.rty, not by a
lative body but by other property owners, and that mw.It &
tion of ~ower is repugnant to the due proe,.aa clause; (~)
oven ff~ueh eonseats were obiained, the ama.almost woi
bad, since tho boa,'d of appvltla is given ,., sh,,,0crda or
to exercise its diaereth., as to what" edueafimml,
eleemos~a~ purposes" may be permitted, a.d (3) th
ordinance as am~&~d dlsc,'bninates hetw(,,,, l),hlie cml
schools, and virtually h. rs schools as w,dl na
the
mo ot alqU!l o,lo~ ~p.im.lll!q ~mj,l :tho ~.[~u[od
~ a,, Xbl,)d(,.,d' o~L~l.id JO o~n Oil'T m)(~n' oiqm/os~oaun
i',O~ll.ij OlJ,[~ ('HIT ','/) ,,'~u~¥q!nq pa~OdO~d Olll ~0 $00~
oq~ 'i~o~un~/~ s;:z~ ,,uzo,[ o;{~
~aoao o; poa!sop puv '.rood po~z
-u]~ puu pou~o ooi~naI ~liu!u;(. 'asuo tnt;1 u; '(fi i~ '~ 'i]. b,2 8)
~aaqoff '~ 'oO ~s'na,~ '~ ~lllU~,S,
I(Ji?}~Oa ~ilLil~'t~A ()~ 8.iO~J~Oti ~'~..O(lO.itl OkiiO~
-hOg X(, goaaoa 0,,':; [;LsA aO Oa'aO[;,OAiiO9
t[;)F/,~ os:, ~o t,ug; ')'I~ '~nq asa ~o
oouu~pao p*~q~!.To mi3 aepun po~uT~.{~
'~' -~ATT>Lw. OF CONCO~DIA COLL~:0~AT~ INST. ~).
· ~. Opinion, per F.~o~s~,, J.
ff,.mer'a! wcLf:u'e of t&c commune, fy, av.d is uu¢',.er the direct
?~erv.N[on, care and concern of tho 8Mte hs~!f. Zoning
· 'dhmnees must find !heir justification in ~he police power exer-
........... es of tho m~bU¢. (FiRa.qe o[ ff~cld,~ v. /~mblcr
.,,:t?/ Co., ~72 U. ~. . .q ~.'~ 2,.,t.)The ~overnmenta! ~.~wer to
cc. general r..,h,a of the
ow* er by rest,'kt[nff tJ~e character of his use, is.not mdb.-
and. oL;'.er c,Jeqt[cns as[de, such restriction ctmno~ he
':,~,~,,d ~f :t c.o~s not bear a su~s~a L.a_ reJation to the ~)ub~.ic
safety. ~o-als, or ffenet'a! welfare." (Necgow v. Ogf2/of
..... r ~z :.:.q.
c .... , e;en ~Y.~ot~;4"~, S0~ of ~he acjo).mng pro0erty owners
,-tx', t. tlc board of ~?meala in the ~nsmnt case. was raven'
..... o~ ..... a.i. 1 he deems objectio,,av!e, y,?
N (ZR'eu no '7 [de- Io it is cemm'%ed tm ,2n%tt(re' and
. s(s. ','~ ',,,,,,' ',, ,, , ' h,.',l fha* thN ,,my v,,! be
~.I]./D · oI ]~iltle v. Young, 2qo N. V. 6to- ] aC,,O ~Ot.-
~';o~c l*:sl . v. U,~?.'e.rsi(q of S&~te of .V. 7.._ 298 ...v y.
',qer v/Nv~a!l v. ;foss. 279 N. Y. 222. 295: Pa*~z,.a Refining
._ts t: .,poses o. r,,spouoent s elmm that petitioner mu.s~ seek
........... ~, ., how of hard-
,;:t'orer's pro-erty is [,, a residence zone, and it fra~C~!y
. ,, ~.. _x t ~.. -- flint it emtuo~ dmnonstraie
:~s 'al! * ;~.... ~o. yH..c: a rel~st)!~able retv. t.~ if used only fey
,,u,'~m~e. .. c'b,v,',,d ;- tim5 zone, varec:v,_ ..... . for resh!enees. There-
.- .. o ~,l,n a ~e grouud of
7'ds~dp ?~dor our dec!~.ons, such as Matter of Otto v. ~qtei~-
;,.m2 N. v._ 72) a, .... ~ Matter of ,~ waox'*' ' v. ~ri~]m' ' (2n8
;c.. ~f the boa.rd of m)pea!s should grm~ ~ts ~',-~ -
~, ...c x ..... LC~ x~o..,t. >e a nldl[~y, and by ~lo.m.d:~lq
allac~ hy owners of ~¢~; 1, , ,
a%._ .m_... p.ep.r~y.
1950.1 OpD,J.on, p~ l~or~r,~,, J. h~l N. Y. 1~,~l
an extremely unlkkely resu!q i,.t the face of an inv:dld stat,;,o
that stands ih the way of retlef as a m.agter of rigbi; tho restric-
tion itself ¢oustitutos an inv~ion of its propar~y
(Dowsey v. Figaro o[ Kem~intlto~, 257 N. Y. 221, 231.)
tloner's eoutentlon in this respect is souad, and we aro aecort}
ingly constrained to conclude that the amendment o¢ lfel
10, 194!, violates ~e due process etauso of O,e l%urteent.h
Amendment of ~e Federal Constitution and section 6 of artk!o
I of our State Constitut, lon.
The question still remains, however, whether, with *lin amend-
meat eliminated, petitioner is entitled to issuance of 0to
requested, since the 194! amendment also repealed
(b) of section 1 of article ~. The p,'ecise question was pre,c,ted
i~i Matter of. Little v...FOUng. (s*tpra). where we a~rmed ~:h,, !ewer
court% which held that since the.vrov;s[on rtqulrb,~,. ~. app :, w~
was invalid, ibc accompanyieg repeaU~,g provisions a~so C
and there remahmd no .;lalt~a[iou J y. ti,e ordinance .pon an
wise lawful use. !n o~ber words, s:ncc the 194l a,,m,,,h,,,~t
invalid, the provisions of the .... ' '>. ~' o, a,.y'" ~ ,~! are resto,-o,I
as the nser hero Jn question, is ¢.o,,' e,,.,., net..~ 'J?ho loc d
ture in adding tim 1941 y,,,. ~ , ' d,sh:o t,,
permits for educat;o- ...... a~ 1)t ilding..rs .It ,'ecogntzed an ed,~eatio,M
use as harmonious with the public ieter,,st -- and who
could eonsMer it otherwise -- but made it s,bject t,, the
and approval hereiubefore outlired, which we fa,~
!lenee, no !imi~tlon remains.
It is unnecessary to consider Ute remaining q,~esfio, s
,~ m, Village's right to bar schools absolt,~e{~
residential districts and its r}ght to discrimbmte between private
and public schools. We do not touch these questioos, and
fore need not decide ~aem.
The orders of the Appellate DDision and Spec;al m,,*a should
he reversed, and, sh:ee no triable
~s. ue of fact is presented, tho
application o~ peattouer should be gra,ted, with costs ia
court and in the Appellate Divisiom
The orders should be reversed and tim appllcathm
with ~sts in this ~urt and in the AppcFato Division.
Louo~aa~, Ch. J., L~:wm, Co,wa% Dns~o~v, Dr~ nmi ~o,u
JJ., concur.
Orders reversed, e~c.
O~ e9:'."~% t~C~ er:'o,' ~ too hnporiant to be d~rega~
and. ~.5,,'~..for% t~* ~'.:d~m~en~ should be reve~ a,~d a
'?v: ~,"~t~ "":,:"~L w;~N co~ to ab~e
:md L~:-~.t~, ~j.. concur.
J,~ t!te _Va%er o? -MAX WUM,'SO,~N, A_,.)pe!!ant, v.
~u~.m,;~. ~.~ Ins;,ector of !kfild(n~ of the C~ty
5~ou~.~ Ve'~on, ~.esponden~.
.... u'.a~o~, of ~..4ght of o.po,rtment hot,.sos and. of
.... :o!atio~. by ~rooe~ed bv. fldln~ of three
,dandifying a,~d ~!ating ~xe u~ of hind ~tbAn its borders in
19o.5.1 8tmtement o¢ e~. l~41 N. Y. 28Sl
ltt~ the bttrdon o! ow~m}ng tim l~ommtl)ti,.t -f emtstitul,i~ma~ity
~pptieable t~ such o~nane,~ by ~fvnma, n.t o,lly ~, ~,ts ,ff whi.h
~I of the~ err, ts whDh jttsti(k~ thg adoption of tht~ or,~,mm*~
a ~mb~ exomiso of t~ b~d l~lieo ~,wev of tlke
and that the m~ly pm~J~ 'must bo generally ad~q,t.d ~J
pur~, tho linfit u~n ~ndifions lm!d ~ ¢~,mo within I,hia rule has
hcon ~tly en!~ed. Tho ~w.r is not limit,cd to ~g,d,~tious
¢~esiguod to p~moto public health, put,lie morals or ptihiie mtSlt,y or
ox~n~Ls lo ~ th,Ming with ~udkions xvhich exist as to {,ri.g .ut
· t. Who ~ning auOlorit, ios of lbo oily of Mouut Vernon wo~ entiflad
b. p~mtotud by it fundo, mon~l divi.ion of tho city i.to districts
~rtmont hou~ ~m n,sidenti~l districts Clum.t N~ justiii.,d.
dlstriot and enjoy tho lmneflts Ou~ri.ff, hy ox,dudi.g big al{artmt,~l~
hou~s whe~by tho enjoyment of ~oining pn~mi~s migbt ho imlmi~t,
t/to elmr~r and ~v~y of the district :~ a ~sith:ntial eau dest,',,yod
attd tho value of p~t~rty a~ly dowm,d to private
intlmi~d.
6. It is not an effective a~umout ~inst th,mu or~Ha~ncoa,
otho~i~ v~d, t~t ~oy Hmit the ua~ and may (~pn~ia~ th~, vMuo
of ~ti~io~r'a pmmis~. T~t f~uently is tim off~t of poli~
~tion and ~ ~eml wo!(~ of t}~o public ia sulmrior ia imf,r-
~m~ ~ the ~ ~fita of the in~Hgidual.
7. The ~ ~utlto~, in any went, ]mw~ tho right to
the ~true~on of ~p~nt hours by ~,stricting their h.lght
pm~dbi~ the o~n a~ which sl~l su~ound them, to ce.si,let
tho ~ffemnt ~ibiHtles of apartmo~tt hotl~ ~ltslruetion awl
19
Matt,rr of V~lrs ~hn v Burden, 2!a App. Div. g24, a~ ?ne~..
(Arl~ru~sd Outo!ser 9, 9-0, dot,dod -Novo!a}~,~ 2d, 192.5.)
i~925.} Po!'ats oP camnsoL [2,1! N. Y. k~g~l
APP~A~ from ~,.n order of the Appe!l:tto Divisiou of ~ he
Supreme Court h the second judlebd d,q>~,rtme,t,
eutered Ju',y !(;, 1925, which reversed tt,t order 0r Slmci:t1
dmnus to compel the derendtmt to :~pprove }ii,titS ;tit{{
issue ~ the ~gitioner $ bu[khug perndt and deuic~[ stdd
tactical.
J. Hen~! Es,~er for appel!ant. The :mswering
offer no justifying reason reeogn;zed I,y ~lte pol~ce p,,wcr
rot the d~rimim~tory trod m'bitrm'2 I~rovisi,,t~ hem
%~ore the ~urt. (?~..y~ & Cm~l of Witm~,gton. v.
~5~rk, 129 ASl. P. en. 5~2; (J'i~y q~ d(.~,.s~,/lb, v. (.~,~
77 Wis. ~g; Matter of Barkcr-Switzo', 2~?) Ap~. I )iv. li-,I;
238 N. Y. 624; People ex tel. Wim'lmqth .4d,. tsp. v.
Murphy, 195 N. Y. lg6; ~%'mm v. M,,?r &
g T~n g ;VestfieId, !24 All. ~' 248; 1t,~ dy v.
(~ South ~'a'nqe, !18 AlL Rep. ~:~S.) The
hem h~ qu~tion constitute tm u,~:tw[ul ~:tki.g of
petitioner's property, wkhout due process or !au'
witbou~ eomlm~sation. ¢?o~mt. or U. $..
Const. o{ N. Y., a~'t. 1, } ~;; CiO/ of ,gl. L,,d., v.
Hill, llO 5[o. 527; Bucha~mn v. ~'Varle~l, 245
74; P~yb~nia Coal Co. v. Mai, m, 260 U. 8. 39:1.)
Nei!~er Lhc ~s!:tt;ure, nor the municip:,~ity,
power to establish arb/%ary act-backs oF btfildlng
within prive,+~ property, ~u)r to pr(wt, tt thc ow~ttu' from
m:tking a full legP.;~mte use ot his l:md su',jecl,
to such limitatio~ts :ts ,.~re dictated by the public he:dlh,
safety mtd gcne,'td wel~re. (l'e,ph' cx rtl. Dila~r v.
C¢I~tI~.Y~ 8(3 Apm Div. 503; M~,tlcr ,f Ilccbl-D,,,,,
Y'r~., v. Bm'd~*, 124 Mi~. Rep. 532; I%q~lc
Lank~n v. RoMrts~ 90 Misc. Rep..~39; Matt,~ ,bt Isenbarth,
206 App. Div. ,~6; 237 N. Y. 617; 1 Lewis on Em. Dom.
[3d ~.] ~ ~27; 2 Did!on on Mun. Com. } 695;
Ol~nfon of l~'JusN~s, 128 AlL ]~ep. lgt; Vol Frullt v.
Board of Affairs of Chm'k'sWn, 8-~ $. E. lt~,>. 1~)5;
v. :5';',, ~ Y(; .Mo. 527; ~Tillison v. Cook, 130 ~': ,.
,:o~. (~a~oro v. City qf ~ , ·
f' "¥~ ~ .. 2'4~' Northrop v.
t'.r',:., qf ' 'xlJ eld "~A At~. '~', 2.*Y'; ],'w'oln. 7' ,: ~ ~c,',.% 22~' 7~. ~' .~:.~; ~c_:t~..~c. rlh v
'*:-,' 237 ~. V. ;~ ....
..... ,. , Mat~ of OF/nl,m
' " '~' AiL ' ~0- ~' .d~',- Sco~, 7:;7 .~:_c,. :%;
~,/;t:;tr*,..a.a,,', ,., ,,.t~. f, ?el',
5 ,, ' · '2e,. % v C,, ,cago, 6, ~. .5; P(u~sa'ic v. _'
..... Co.. %' N. j. L:,, v, .... ' ~; ' .... , ' 'o ",
,So t.~., ]?%fc,'o I~'!. Co.. 20! N. v 07,.
,'.~, ..... (, , ]' &' ~U~'. v. Ad,,.w,z,,, 2:"' N. ~. 459.) ~. ne ~;.
~?ov~sk,,~s ia (~a~tiop. here. (Mact~ of ItetI.;l-Y)o,n Co.,
l','o,,>b, vi Mark, ?? X. Y. 377; Y/yneaa~r v. People,
.~. Y. 878; Rcnaaela~, etc.. IL Co. v. Davis, ~'3 N.
L37; New Y~k, e~c., R. Co. v. '~' " =
~ ~*p, 46 N. Y. o46;
./; "',.;, .., ... Co. v. Ce,.lrat Umm~, Td. C..,,. ::u", .,
1925.] Op.~uJo~, ]~r t!meoc~, Oh.. J. {241 N. Y.
People v. Well.% !$1 N. Y, 252; St~de ~tSaer S~q,ply Uomm..
v. O~r/.~$, t92 N. Y. 3~.9; Matter of S;mm,ns, 2fPi N. Y.
577, 580; MoLt~ ~r McAn~qt v. l:~oqrd of P:stimale, 232
N. Y. 377.) The ~t-bs, ek. :md rear y~rd provisiotls
o,.tes~ion ~;'e a~bit,'t~ry ~md ~;Tdly mtre:t~o~ab~e. (Pe.p~e
ex rd. W6Mwrd~, Adv. Co. v. 2~u~V,~,¢/, ?.95 N. Y. !26.)
The ,me of pet}.t:oner's property for tt,,'.trtmcnt
being lawfut :md e~)re.~!y ~)e~,,fi~Aed., the ~e~,-L:~ck
vis,mm ~ question ,.re, on the fa,ce of t}v~ ordbtauce,
~mS),wCu'.ly d~.scrJmbm, tow. (Lin,',dn Trust Co. v.
Williams, 229 ~. Y. 3~3; ]~e.ldc ez rrb l)u,'yrq v. Wilbur,
19g N. Y. ~; Verno~ v. M.q.r, elf., ,*f Wesqidd, t24
A~L Rep. 248.)
Ib~h M. H~vson, C~porat'ion ~,.~..scl, Ar/I..' M.
Jo,~on and ~sler D. ,~t'ickbss for respondon(. Who
le:t,'ncd eou,% below err~.t oq the q,estions of tho }nlrd,~t
of proof a~v.l tbs qtvd[ty of proof. (15:olde ex tel. Kw,b-
b~uch, v. Warden,, 216 N. Y. t54; People <r tel. Publicitu
Leasin~ Co. v. Ludwiq, 218 N. Y. 549; Yctbm, 5"oxk,l*
v. Oayn~ 82 MNc. t~.ep. 94; 159 App. Div. USS; W,lbh.f
HoWl Co. v. City of N~, York, 212 N. Y. 97; Hartman
v. Col2in% ~.96 App: Y)]v. 1!; Namm v. ('~rUn, *~2 Atm.
Div. 626; Isenbart]~ v. Bar,Il, 2(~; App, Div. ~6.) Thc
Zoning Ord~n:mc% in the provisions a%,,cked, is
exereZse of the l~!ice power. (~qlo'rg v. N. }'. El. I?. t ',%
~ N. Y. 122; F~.s~ v. ,qeolt, U16 N. Y. 577; I'eopl,: v.
Pr~ai~ 2~} N. Y. 274; H,:aZta Depqrtmc~q v. 7'ri, lty
Church~ I!5 N. Y. 32; People v. ll,.,,.w, ~49 N. Y. 195;
Co.rth~e v. }%&k, 1~2 N. Y. 26'~; People v. Kl:nek
t~n~ Co., 214 N. Y. 12~; People v. qrL, wold, 213 N. Y.
92; M~r of V~, !79 N. Y. 2:15; lY,pb~ v.
sec~, 169 N. Y. 53; People v. Cipperley, !(H N. Y. 634;
M~ v. ~W~, ~ U. S. 412, ~ e,znuml Ho~e Depart-
~,t v. M~h~, 179 ~. Y. g?~; 20~ U. g.
~mco~, Ch, J. ~he ,,ppelSmt WuVso~v~ is seek~
by peremp~ry znandamus t,, c,,,me~ the
~::,.-d. en +,e ?prove phms and issue a building permit for
or 510,2._~ Vemo:~. T.,',e :'c[usal ~) issue t,hLs
;vhieh h;:s bc:,n susta;ned by the eour~, is base]~ m~on
~he fact t},:t t.b,e propJsed bui'.ding will violate eori.:dn
z'>l'ti%,.' !'c?,t!':t~otl,~. Appe.,'_.'a,tf~ Cll:,?'.!e, ytge,s tttesc~
the '.luesth,n or e,o_-,sf:itutio-.:dlty on which we :;re
....... u re!allen to cities (Laws of !909,
eh. '?(., as amended), of which 5{ottn~
5:'cad gu!hor~.',y amoa~ other ~hiwas is given to such
'nu,~e~pa!k~es *o re.~lMe the hei~lh~ and b~k of build-
h,.qs, to regulate and de, erin:ne ~he m'ea of yards, eom'~s
and Open spaces and for such ptv~oses t~ Wide g eky
%to dis~.r2r, ts and ~o ,dopt va?iors o~her Drovts~ons
classifying ar,.d re'?~h~lng %e use of !and within ~i.s borders
n the ltt*e,.e~ o[ the public health, safety and. ge~ertt!
we!fa,'e. While ';he appe2tmt has m:~de ~ame mte~t, le,x
whether th;s statute w~thorizes a municipality J)ke the
C'ky o[ 5{ount Vo,'no~ to ::dopt zonln~ regu~at;m~s be does
th5s ,'ati2er faSn~,ly and tSe sSatute authoriz~ snch action
so clearly and broadly tl,at we sha~ not take time to d.;s-
i5 conferred the power upon the City of M,~unt
Vernon to :~dept the re~zlatSms wh;eh, have been adopted,
st:,tute: ht'.~e *,,..de a eomprohe~L~[ve chtssificatiott oF its
~,e:"itory a,td have dix'klm[ the same into ~x d;sg'iets,
A, B :md. C r~kle~tia! d~stdcts, A :md B busine~ districts,
and lnd~tria! districts and have preserP~l
a~lieable to the areetion and use of bu[Mb~s and
h~ these various dlst.r/e~s. ~re a~ only ~neerned wit!t
these re~.dalions as they create, and rc~alate the erecCon
o~ buildln~, and use of hinds in, the flint ~wo dis'tiers.
'Tw~e fix the boundaries of these two d;strie~,
MA.'Y"I'gR O? WIY~,~O~IN v. BU'tDE~'. ~5 '
!9125.] Opinion, I~r !Dsrocg,
the chtsse~ or buildings whi0h may be erected therein
aml, .'m their m~bstantla'., restriethms inw>Ived in Otis
provide that in the use ,f a %t in tho A r(~idtmtiat district
for an apa~ment house or a hold the height shall not
exceed five stori~ and 'that there must be a "a~t-baek"
h'om each lot :md strut line of r~ f~t, aud in a B r,mi-
deuti:d district o~ 25 f~t, a*td that there ,nusl, bo left
the rear of the lot as used (this ,.,,t being confin~t *~ the~
particular buildh~gs) an open spa,a which ~ in part
grmtuat~ aeeordlag ~ the depth ct the lot and height
of building and which in the pr~;ent ease w;mld be
90 f~t bt depth. They onYy affect new bui!di,,~s
those wldeh may be reeonst,'ue%d. Appelhnt ow,s a
k~t situate .at the inte~ction ,,f twa struts with a
front~e on one of thee of 100 f~t a~d u!mn the ether
of 300 f~t and l~at~t in part. iu the A re.sidentlal district
and partly h~ the B rt~idential district.
No el~m is nmde t~t the ~gishtture has not pro~r!y
~ufermd u~n !m:d authorities the riglO, to exe,'eisa the
powem enumerate[ ht the statute which has bees cited.
But we shMl :resume that thee ordbumces were ad,,pl,,~l
under a ~neral legislative :mthority and that their
constitu0omd va!i~ty wins subject *o attack 1W ext,a~tm, us
evidence (Ma~* of ,qtublm v, A&mso.,, 2~1 N. ~.
and in aceort~tee with this role affidavits were prem, tted
upon appelhmt's motion for a m:mdalmls in the elIorts
resl>~tively to impeach awl ~e sustain the v,!khty 9f the
re~,btti,,m. While these af~d,.vits p,'obtdfiy d,, not
gre:t;ly md:frae [he scope of thc f~tc;s of which we might
take judicial ~mtice in det~rmi~dng the v,.!idity of the
ordinane~ from their f~e, the? are ~,me facts to which
reference may properly ~ made.
As we undemtand them. the te~i~ry now included
N [h~e r~denthd ~strie~, and ~ially the A district,
was bffore the adoption of the ~oTting re~mlalio,,s
question a re~s~d6ntial d[str~ct ahnost entirety devoted to
and vceupkd b~ .private .one-fan~ly dwe!Uug house.
~mmq ~um~m(h~ jo uoDar~$~oa oq~ q~noaq~
~m;q,~ '.s~o{a~Mp s~u}suq i~s~uo~ ~ ~uap?u!
o,n uo!q~qn~oa ~ ~[;ms jo ~aoddns uI ('gli 'X '~ 6~
-~amyf 'x otdOad) 'JO ~)u~i;IdUi~ oaaq suo~o~i~
X;,q~ uo?qaxo jo .,a~od Mq'{ P'"q aapri pl~oa ~ou~ J! a%
apuiaxo i,a~ ~ouop~.[ ~lp,n:j ,¢a~u~ao o~ ~oxop
~ uoDao[qo aouFu ~ jo ~n~sodMp Jo os~n't~ ~'q5
~i~s 9ou p~) a~
uo Ji '~'u:~S %'1 jo aaa~.,I oo!Iod psoaq ~q~ jo o~aaoxa
ll~g 'A 'N Il'Z{ 'l' 'N;) '~ao:'mll iai 'uo!,qd0 V~'F.,il
· l, iaiu~in~][ 'a l, ffioa.~qil.,k,t ,ao ~,d,m',Vy~,[
s-ao~F~oa 3~oz oq~ ~u~a~ Xq osnoq g,,~ui~;~dt~
sS: u! :ax:q ~;):a~so~ ~ou p:uo~ ~r,q o~ao~ :;'.a~,ia::ci', u'~;
~o~ s:-q..;o .~uao aad O~ jo 'p~qaoqq;~lou o:0 n. .> ,s~,.
wo,,_'d r~uk a coe.gest~on of pupu:'ation inereasbtg
d:m~e:~ o~ tra~c, c:?cc;a!~y to chikb.en, and
~hc cSav.c~ t]q~ ~h~'ough ~he care~cssn~s of some
v.k'.ua! ~irc and co:~(]~grat~on m~ght be s~a~ed or dkc:,~se
communicated and epk%mJcs set on thek way; that the
adva-tages a~¢ vahte of property devoted ~ m'ivate
~'c:d,:smccs wou'.d be impaired. And ~f we are right
such 5neSs could be found, or a~umed we do no~ tJ~h~k that
~xCOUrt eouX~ say as matter o~ !aw that a zonS.g regulat;,m
clutEng large amn'~:mcn~ heus~ could not be j ,st;~
~-,V~s there were to be secured to those d. we!5~
t:~o advantages and that finmmfity from r~sks an,2 dan~?r
w]fich wo~.d erdfm.~y be courts,tiered t, he mah~
cf such
Or vouw,e zor~:,.g re~at~o~q are an exe~'c~se ,>r the
p*~[~ce power :,~d :ts we ap?'oach tho dec~shm o"
power bas 5ec~ ~reat~y cxte~tdcd du,'h¢~ a con?~tra )very
recent ~cc~od and that wh~% ¢~e fundamental ru~e must
~o be apprehended wh;ch the po'dee power may be ~wvke[
te prevent :'nd that the remedy proposed must be g,nera'Jy
.[,q:~t,C to that purpose, thc lim}t upon condki,ms held
~owcr is 2!ot Urn:ted to rcym]ations designed, to promote
~vp?'es.s~on vi w~mt ~s offensive, d~sordcrly or uns:m~t:,'y
but ,x~.c.~ds to so deaS~ ~vRh co,~t~o~s which exist
to bring out of them t~ae greatest welfare of the people
by .?emoting pub!lc e(mve~fim~.ce or general prosperity.
(Jl~ v. 5Falk¢% 204 U. S. 3!I, 3!7, 318.)
l~eS~ desig,.ed to promote Imbli¢ conve~fienee or
prosperity :~ well as pubEc health, pubEe mora~ or vublie
sa!cry the vs25~.ty of a po~e rej<u?.ation must
~%on the ckc::msta~e~ cf cpx, h case and the
~:.A'I'TER OF WULFSOD.~ P. BUm)~*~N. ~,)9
it i~ a,'bitrm'y or reasonable and M~ether really designed
to aceonq~l[sh a !etX~qbmd.e ~uhlic pu,'pose. (C., B. & O.
Ry. Co. v. Drainage Commrs., 2(~ U. S. 56t.) The field
of mgulatloa co~ta,tly widens into ~mw r,2ions.
qu~ti9n (Of ~.[tttiOn) in a broad a~d de~ni~ sens~
one of degr~. Changhg ~onom~c condJtlons, temporarg
m' pernume~t, may make necesqary or benelichd tho right
d public reg,atat~on. (Peopk ex rd. D*~rham Retdty Corp. v.
La Fetra, ~0 N. Y. 429; afl&, in principle, 2~7 U. S. 6t;5.)
While the validity of pdice regul:~ti,n ocr;ahOy is not to
be t~st~[ simply upon popular opbi;o,t it has been saki
O~t it h~ b~n "put fo,'% ht aid o[ wh,,t is
by ust~ge, or he]~ by tS, e ~,.ev:dtia~ mor~,Jity or strqm~
'mtd preDonderaq~ oD;a[on f[~ be greatly :md imm~htt.qy
necessa~} to the public wcVare.' [ Nobb~ Sb~a~ F,,,.k v.
ll,.dcell, 2!? U. S. 104, 5750
progressive in a,[jttstitxg thc use of !and i,t th;c!dy l),,m
I:~4 thstricts to t}xe necexsRies :md c,,u!itio,s ereat,d
by congest~t and complex comtitio,ts by upholdk~tg
a constitut[om0 excrtdsc of the I.,See power zo-i,g
ordSnanc~ pmqs~ u~der State ;mthm'ity t,~ rcgul:d,e
use of hind in u,ban d~stricta. Wlmt wt~s om~e ,. matt,,'
of voluntary sub~J, ssion to mstrictiw~ cove,umts in
bas ~como a m:~t[er of contptdsory o~cdhmee
ordin:mc~ having ~he force of'statutes, it has como
about thag 40 States ha~o pissed laws authorizing
ordinane~ wlfich in one form ami ~mothcr had, bt ,lalttm fy,
1925, been attopt~[ by 320 nmnieip:dities.
go, rurally spea~ng~ where restrictive coven:mrs commonly
stoppcd,'~.th the excluskm frum residtmtial districts
factori~ ~d business buildings, Omm regulatio~ have
developat until ~m h the pr~ent~ ctme bhey cr,[te r~htea-
tim &tdct. s ilx. a !age se~x~e limi~<t ia) l,riv:~te dwe!!i,gs
d;stingulsh~, from hotels and aNart-tcnt hour. Thtts
f~xr they httve b~*~ sustahu~d tLS hei..g c~mJm'ivc to
:74! N. ¥. :Z8~i Qp ~:¢ ? "mr .rDsco,,~q Ch. J. ~Nov.,
~ubHc hca:th, s:ffe:y and mcra~ '~V?~ few exceptio,~s
co?% ~u~ve not b~n ready ~o
~t f,'cm bcb~ bk>(eb~2 by the erect~e~ of ~me incon-
...... Y
~)roper~y was impaz[rcd. The Supreme, Co,~-t of the
'::nReJ. 9t:~tes ba~, :~owever ~one so far as ~e approve
~n ~u:st:?:(? i~:e v.:c,,v~ of the ~fassaehuset~s S-rr~m~
~fourt that ~thet:e eons;derst:-:~
......... ; ~f what ,.a r :'~
~ ..... ~ ,.,~
com':~ ::~ more effective and su~c:ent
:n a%empU~g ~ apply ~! of th~ prMeipl~ ~ the
~r~e,..~ ease we d~.m. it u~ueeess~ ~ eon.sider the
d~k~al d~stricts. TMs ce~.t hb,~'so defi~ely approved
tha~ propo~ifien that we may take its deci~on a~ a ~tart]-g
~o~n~ in the eens~&~,t~on of the further euestio,~ now
before ::s. (Li,wob~, T~u,~'t Co. ~: ~Vil~ i~idg. Corp.,
::avi~g fi~c power as we thus as~ame ~ establ:sh
..... t ...... s~r~,,,s :~ seems t~ us that the zoni~ author:-
o N]ount Vernan naa the power to ~,-ke such c]assi~-
revJ[y effective bY adopting such
~ c ..... to --- :,mfare, health and s:,,fety
~,r ~hosc, des!rJmg., , to live in such a district ~0~d enjoy
the cencfi..-~ tqorc:~f as we ordina~Jv conceive them.
~..,,s,._ ~ar~c c~t:es 'where more or
,, vo ..... ~r]v:de }~emes rather than to hu%~ ~.q~nerc}al
~. dJ..Lgs, Such wasa~. t~$,m,,y" the character ef the
territory here m~o:v~d befo~ the ~o.:ng reg~a~lo::~
~. - :~ . pr:~,xy pu~ose of such
~,.., :oat ff Iaud ~mtable fa~y l:e ra~her thy: the
:'.eve!o~en~ of co~nmerelal :ns~:ne~s vmd ~he pu~u.!~ of
Mx~rr~ or W~.rsouN v. Bvm,~:N. ,
1925.] Opbfiom ~r }~mcoc~, Ch. J. 1241 N. Y.
pecutdary profits. Such life goes on by night as wall
~ by day. It inc~ud~ childrea as well as p~qfle of
~lature judgment aud i~ housed in buUd;ng~ whict~ are
not or~n~ily of that character m~t des]gu~l to resist
~nfiagrations aud l()ca%d where fire l)rotcctbm is seanLJer
~d !~$ eff~tive than it wo~d ~ dsewhere. (Web:h v.
Sw~ay, 214 U. S, 9!, 107.)
Therefore it seems to us quite in accordmtce witl~ the
d.~2ions :md prladpl~ ~ which we have rcferr~x[
zo~fing auth(,~ti~ should have the right in a r~ideuti,1
d~strict ~ preme~ these purpos(~ and ~ prot~'t the
~)~ple d~:rhtg W eq~oy thef;e conditions hy excludi,g big
k~)artment hous~ ~Yke the one propo~;eJ, by :tppelhmt
Whereby the enjoyment of light ~ut,t air by adj(,iM,~g
~ro~y weuld ~ bn.pai~, the congestion and dangers
~f tra~c ~ au~en*~ on st~ts whe~ ehikh'en m~ght ~
~ say no~hing of o;her ~hings such as the
of [he eharae*~r of ~he dis~rlet as a resid.enCial one aad
fl~e impafnnen~ in value o~ property ah'em~y devoted to
priw~te r~idenees.
~ This view h~,s ~n tM4en by the c,~urta o[ several
Stat~ mzd to ~,t we g~ve our :tdherence, m~twithst:,ndh,g
the fact that courts of other Stataa have dJ~cided otherwise.
(Mat~ of Opinion of Justin% ~34 M,aq. 597; Brett v.
Buibt'i~ C,m~,mr., 250 M~ss. 73; Spcclor v. B~dbling
'f~c~r, 250 M~. 63; ,Stat,, ex ,d. ]~ee~y v. Hou~hbm,
[Mint~ Sup. Ct.] ~4 N. W. ]~q~. 569; To,.n of W~,ds,r
v. Wh~, 95 Co~. 3a7, City o/l)c,s Mol,cs v.
~l Co., 193 Im 10~; Mil1~ v. Board o/]'ub. Works,[(
Sup. C~.] ~4 Pac. Rep. 381; West v. City o/ Wichita,
[Kan. Sup. Gt.] 234 Pac. ~.ep. 978; Kahn Bros. v. Y,mnf/-
s~, 25 ~o N. P. IN. 8.] 2; State ex ,'eL Carkr v.
itar~, 182 W~. 148; S~ ~ rd. Ci~o v. Cily ~ New
Or'am, 1~ La. ~. 271.) In addH&,n we Odnk
this view w~ im~h~l~y adoptM b~ the e~ of Pe~pb: t;v
~2e~e~ Realty Co., Inc.,.~; Kk;n~l k~37 N. Y.
dec;deJ ',y 01!s eom't w!th,,ut ,).,,~!nhm and whereby :t w,'it
e'e,,'~,· vms d~sm;s~ed by the Un;t,~ S*~tes Supreme
Sou,", by d,x'~,&,'t ,:c,idcrcd Jmle a,
':, N ~o~ :~', o "'eetivc a,'gumcn',, agaff~st these ordinances,
~ ethcrwNe va]h~, Lh:;~ they 5m~ ~he use and may
exclusion if pos,;essed we,Ad ~ve ~5e right to
haq been done by the zonb~ regubO2o~m now
to us for conskkera~%n. Thee regu%ttions r~;tric5 the
he~ghq or an ?artmenq house and prescribe the
tkere 7~ no "5;~a' or practica[ bar which wou'd ,)mw'ut
?peT.:utt de*:res ~o erect. The zoni,xg a, tho,'RJeq h~d ti~e
r~ght :,o consider the dkgere..t posstbEi~ies of ,tpartme, tt
5.ouse constmctlon and make generM rul~ wbtch woe[d
ymvevn them. Wlmn we cm~k[er this we do ~t,)t,
the rcstrictlons which have b~n ad.,~pt~ can ~ said. as
matter or !aw to be so um'easonab!e that they excee_[ the
!hnhs of discretion repos{~ i,x the zoni, tg commJssicu
w~.d a~proved by the cou-t below. AJI o; the rea~ns
wY.;c}t we have given ten{Ling % sust:fin the
!925.!
froltl ~.UCh a re,~ldent.h,.l district apply with (;wt,I
air soaee. TIle open sp, mes not o~dy tem[ t~
the ~amger 05 f~e t,o adjoining t,ui!di~tgs ami Oma a
sprea~ng con~agrat~on, but they also afford a gre:~er.
oD~ort~ity %r acee~ by fire departments to a bu~,in~
~ld~ng and thus increase the ~ss~bility of suceesshtHy
stoppkng a confla~,atio'~ be%re it sprmtds to ,.,the.'
bu~!dings.
So much for 5he substantial quest}{m i,w01v~t ~ml wo
then come to certain ~ubordlttnte e!:.h,m mmle hy
B~auae the pro~s~ons permtttb~g the erection ef
merit houses provide ;a ~mbsta,wc that there sh:0! be
display o~ advertising ~sib'.e rro,n a,~y s[,'w¢, the
m.~ is ~mde that, the zo~dng regulatimm ar,~ b:~sed
~sthetic co~midcmtions and, ther-fl,'e, not sust:dn:,M{,.
Lf we are right that the erection of aptlrtHtP!lL houses
mi~t be M~gcther prohibitml it might at legist be argtmd
that t,~ a eo~d. ition of permittin¢ their crectiou
restriction in question nfight be imposed. But tho
restriction of adverthing ma.tter refe,','ed to ht Otis c:,se
is a minor ineideu~; the main regtdati,ms are of heitsht
and of open spaces and these provisio~m are ~tot remh,'ed
invalid :becanse consideration is give,t t,, a]~De~U'Rm~e
buil~ngs tts a nfinor and auxiliary l~ason. (Welch v.
S'was~, mpra. )
Appe~t, eomptains that the reguhttions for set-backs
are um'~mnable becatlsc they do not ~radun.te
setbacks to t'ne size of. the building but re, luire the
~ea for a sm~ tm for a largo building. Such ~m nrgu-
merit kqnot ava~able ~ h~t. The only question whie}t
he 2 ~titl~ to argue ~ that thaqe ~t-b:,x:ks :t,'e
able ~ the ct~ of a bu[Iding fottr and 5ye sto,'b~s high
and deslgn~ to ~eommodate nearly 600 peopie. It
~ tkme enough'~ eons[der wbe*,he,' they should not be
reduc~ in thc m~e of a ~.a!ler bu~dbtg whe~ somel)ody
'P'-", :t ~ .... urged that an arbitrary discrhn~-
.... f. 1, %0 OO
...... ,,cc in the maiter (.r se~bacb~ am' rear
~:t~;.~ uetwec~! .m. ,.~ ~' ' houses m¢~ other rfh~b, ~
.-~.~:~. flor ope~ m~:.~r yards 2D~~
:~f ira' t)::~t the zen:.:~ :utho?k:n~ aei~. arb;.:rar~ly
,:;tz::d ;,, A ,es:den::.:a~. d:si:.:c~ ,ther than
...... .~vo ,my by the *~,', visL
:,,,w c.,), ,~a o :nst:9.ltiops except correction:,,! mst.itu-
~:,z;s ..... ' ,~,,!,';~ :md sem:-¢ubSc buildb)gs. We think,
a t'Jt,:t' %,q;4 q)r dU?cren~'e Ln re~;u[t~t~o~. Thc::' heig~:t
wa~ veyy ',. ! : ~he erectiou t~f the~ ~st::.tutioaa',
..,,,c/ ' 'i,n:t~, the observation .-d . ·
s .'*~.. · ~n a~artmcnt nou~ separated
.9. ,'-I Opinion, ,er !tlacoc~l Cb. J. ['241 Iq. Y. 2~qI
public bu~.dJng usm~lly not oceupi.~t at night wou!d be
much !caq t}w.n in a bui.!di,tg wb;ch w:~q subject to
accidents arising from the carc!~qne&$ of ~my one of
grca~ nmnber or people and not a,,t to be detected by
aqy systematic
!n conclusion it is ~ 1~ kept in mind that appo!lant's
proposed buiMi~g vh)lates tbr~ different reguh~.tl,ms
the one p~v~d;ng for one. h~tck ?,rds, 5?
of 50 feet in A r,~ldentia! districts ,nd of 25 f~t in
B -~:denti,d districts. .St oar olfnhm '3u~
surv:ve even though otho.s did ri, c,. Thc,'ef,~,'e, appe!~,tnt
can only succe~ by ~% bl},sh}ng its matter of ~aw that each
to be inv:did. It would n~t be euougl~ h,r bi,. t,,
u,u.c:~k~)n:d)~e, but he must go fttv~,l~W ,~']. est:tb~{:d) tb:tt
., seCbm~k eve,: of g5 {o~t ~s invalid b,um. use ,,r its
:u'b:tm,~ry and. unre.~,n,,)~e eh. ratter. Y.r we have
,'~ght ;n our -e:,~aniu~ it ca,mot be h~d :ta .raft.y; of
abl~ as to be inwdid. But ce,'[:dnly k s,mms to
fha5 a requirement of 25 fce~ of open space beiweeu
prope,'ty cannut be seid ~ be an um'easona, blc pmtc,:.tbm
against ~ntc of tile d, agem' t,, which we h,v. re[erred.
Therefore, for t.h~ rca~ms, we are ~c~[ t,o the con-
c!uskon that the order should be aIlkrnt,,<l, w{t,h costs,
e~d appeE~t's app!ic~,,thm denied.
~EHMAN, gJ., co~eur.
Order
20
tho A{at!er
~:~ C~TY oF ~%~w ~(mx e~ a.L~ ]~es.r)on(':e,~% and
MA,rr~,~t oI~ RF,~ v. Bp. or STANDARDS & ArP~,,U,~. 127
1931.] .. St~t~llu,nt O1' aa~e. ~%5 N. ¥.
jt~risdietlomd powers hy denying tlts ~pplication and w&iting until
l)ro~r l)!~ns woro sub)~t~ o~t ~ ltnw ~pp[i~Lion.
3. U~tder ~tlon 7 (o) of th- Building 7~,m, R(,~)h)tion of the city
of New York, atttho~zing the Bo~rd Of S~n(tards and Ap~,~$, in
expo talon ,)f a ~ o~st~g or p~ hr;ih)lng i),t,) a moro ~st~ett.t
district under re,eh ~ndifions ~ will sMt~lmrd t)m e!mrt~t~r of tim
u~ of his pro~gy, ff it e&n !~ done without vio!m,,~o Lt, ghO
~)nlng ))lan ~d w[thou~ e~msing subst~m).ia[ ine(,nvo~d(.,e~ ~ tho
imm(.tia~ ndghl~rlx~.
4. ~¢,tio,) 21 pm~di~ that a variation may ]m ,t~owvd whore
:m indepon4ont provision ~d tho ru~o, ~pplicah[o ~Jm~to. tha~ tho
wht~{,her the p~I~rty is mo~ s'.t[tnbb> h)r a fori,idd,:t, u~, tb~n
5. To on~0)lo the I~.wd ~ pr~eod und,,r ~,tiou 7 (.) two
6. In this p~ding..~n extt,nln,tUi,n of tho r,~.,rd, it
suDl.)rt it. As it ~U~d within i~ ju~s,l{(~ti(,n, its dof.t~rmioafi.on.
tho~fo~, eammt ~ ~t ~aide.
Matt~ of Reed v. H~rd of ~gtandarda & Appeals, ~YJ App. Div.
21, g~ir m~..
(Argued Deoemb~r 4, 1930; decided Jaaus~y 6, 19310
Ax, r~L from aq order of the Appctlate Division of the
, upmme Court in the first iudieial deoartment entered
June ~3, 1930, wi(ich affirmed an order of Spee:a. Term
[2.55 N . ~20: .-Po[u~s or coultse~ !Jan.,
Leu,'o',/:c 17. Cordon for :).ppe!!.:mts. ?',.u,
~'~, en rt~' % ht~ true. Thc pet.%ion is "", '~' surl;e[c,,t
,.'~ ,'~ ..,, % e' ~e ~/w,_. (p,'Ol&~ ex rel. lO'fi, I?. ,..'~ Co.
'" ~ ' /"" N. '~ ·
r ,m ~ ' g'l~ ~ N.
eX re!~l~on't~,e~l V. Board ,~ As.~c.~so~'s, ~Oq X. Y. %.).
?'?.;/ 27 A.m. Y)~v. 8;,!; !93 N.Y. 2.[g; M, th'r t~f (.'ihl
v . v. "' [[~ .. ' '
oY '~'~ WRt. h~z ~e:~!ty Corporation, in
~'en[vL c~ :; prior s;m~bu' ::qm!k'~s~Yon. (Pc.f.. e:r tel
,'~t'/,/~rlV V. ':~"tttS]t~ 2 2 A.p.~:":'~. -,.°g',.'
~; 915; /,J 'r:t,'r of ii;/'er v. Wt,ld~ 9.~,.,.0.~ App. !);.v.
, .... ,. 6,t.~.~,~ .... APp. ~,)k;; fi,Y~d/cr ~J' l~t'crsldc
.:,. ' ', ~.~ '; ) '~ 0~ ~DfllOD,I'L.N UD(~ Apr)eats
cr,tr v. ' a~;a,, 2!2 ;klm. D~v. (:.~, 2_(.
.~¢.,:.~er qf SIO*lu~ v. IVal.sl:, 2-t5 N. Y.
a.A, /'eople ex
r., F~dham 2:fa,or RtJormcd Church v. ]'~,/sh, 2.'.4
230 ~. Y. 602; glo~er ( ]~lS'crs/dc ,~1. C/Ur t"c. rp. V.
J.,Lcp. e'n.>, oo5 Jk*)~>. D;v. 555.)
M/t~-.~R OF R~p v. B~. o~ gq'a~rznr,s & A',.,,.,~..u,r4. 129
1931.] l'o[nt.s o~' eoun~l. [255 ~. Y. rAal
Board of Str.ndards mM Ap?..~q bad no right, on the
mefi~, to gr~[ the app~Jc~tioff, '~nd in so doh~g the
Bot~ of Stm~d~[s and Ap~Ms ~bvsed [t~ dNm.tlo,~ mul
a.e*~d ~egMly, e.rbi~r~[!y m~d c~prieious~y, and i~.s
dec.ion w~ wholly [msuppor~d by th~ evidence.
(~atl~r of ,?tills. n, ~2 App. Div. 19; 247 N. Y. 699;
Mall~* of ~67B B[~dway C'~rp. v. Board %r ,qlandareL~ &
Appeals, 225 ~k!)p. Div. 97; 2~ N. Y. 57t.)
ArtAur J. W. Hilly, Corporation Cou,sd (J. Joseph
Lilly, Henry J. ~ghields ~nd l. Uilliam T. Kennedy of
counsel), fi)r Bo~xd of St~n(~.rds ,,m! Ap~als, res!),,t, v
deemed to 1>~ true. (~em. qein v. Krilz~% 253 N. Y.
410; Nali~L Co;~h ~,~;ster .C,.. v. l¢mnir,qt,,n A~n.s
Co., 242 N. Y. ~; Ne~,t,b~:rq~ v. Am~.~,;,'a,. Surety ~,.,
242 N. Y. 134; 8cb,i~d;n 7. ffyMn, 229 Y. Y. 6:~3; ~.
Co,~,t. ark 6, [ 7; Civ. Pr. Ac% 5~ 594, 5S9, sub{I.
UW4; People c:r rcl. ]~. J. ]2. ~. ~h~; v. Tox CYommr,% 231
N. Y. 22~; People ex r~g. Cotq~te ln% fnc., v. ~,:sessm's,
~32 )~[~s¢. P. ep. 5Oq; Peopb~ ey tel. Fordlum~, ~. If. ('hutch
v. Wakh, ~ N. Y. 2g01 People ex reh W~,,,x v. 3;~L~h,
2!2 App. Div. 635; 2dq N. Y. 689; l'ren, terft,.,t v. New
York Tel. Co., 262 U. $. 430 The Baard of $~mdards
Ap~ats ~d. j~isddc~on o~ 5b.e subjeerma~Ae, or thc det,,.,.-
mim,.;Jm~.. (Ckv. Pr. Ac~, ~ ~.304, subd. L) No rub, of
affecti,g the righ[q of ~}m p~[ies wa,q vh~la~d to t, he
St. tmd~wds ~d Ap~als, of *.he de{x,-mlnation. (Sc,tlh~
Tm~t Uo. v. Rol~qe, 278 U. $. 115; Evd~ v. Ambler
Reogy Co., 272 U. S. 365; ]4o~t~ of W~fsohn v. Burden, 24
N. Y. 2~; Mat~ ofls~'~h v. Baro~tt, ~ App. Div.
546; 237 N. Y. 6!7; City of Ut~av. Hanna, 2ff2 App.
610; Peop~ ex reh Ro;~t v. ~, 1~ ~pp. Div. 113;
Nec~w v. Caml~x~qe, 277 U. S..83' People ex tel. Beino't
v. Walsh, 188 App. Div. 113; fi4'att~m of Coll;,~ v. Wolsh,
253 N. Y. 594; 25~ ~. Y. ~; ?eopl~ ex tel Hotch,[ias v.
9
!2.56 X. Y. I261 Poktt~ of_ counsel [Jan..
~q..ul~yrt';.sors, 65 N. Y. 222; Mat!~r of EquOaUc Trmst Co.
v. .?emil!ch, ,,'w./26 N. Y. 24.11 Peopl~ ex rtl Oriel ~r.q v.
]]ah,s, 721: ~.pp. Div. 87; 250 N. Y.
JVace~ v. Leo, 230 N. Y. 0~; Peopl~ ~ reL Ueh,ctia lecaity
Cc. v. Lco. ~ 'U
. 2,... ~. Y. 619; People ex rd. Shcbhm v.
2~2 ~m. V~V. (535: ~.O ~. Y. 9g~. Goldcnbcra v. Walsh
'~ ' of 'Wllc,'as v. ~$msh, 225 Apo. l~iv. 774: 25t
N. Y. 5::.g.) The ~acts ne~%~ary ~ bc p,oved in. order
".' ~ . x~ ~h , ] 'laa,~ v.
~* N. ~. ]ty. Co, . Y. 449; ~vin, v. M,bm
C ~g ~ ~. 275; Peop~ ex rd. Fordl~m M. R. Church
v. Wa,:db 244 Y. Y. 280; Peop~ ~ reL Ifeal?t v. Lee,
,x. ,,. ~7.)
~ , dbam ,~. Andrews, Natt~n Burkan, V/ill iam, Kleia and
Le pold ~' mcdma.n o~ W ~tk~,n !~.mty Corn ~:tuy, rcspom -
e'¢,. /C.ow~,tions of fact contahmd ia the petition :,.m nob
admitted. ( Pcop~ ex tel. Erle Ry. 6%. v 7 ,,,:;
?49 ~. Y. .',~. ~'e~ple ex tel. Po~ v. ~qehs. ~..~9 App. DR'.
q~: ]'copSe ez tel. ~rowwfl v. Board, 127 Am). ')1v. ~51;
]"eople v. YrencA, ~ N. ~. Supp. L:,~.) On tae la% apnh-
c~;fion the ¢ ." of the ea~ we~
a .pecks ' '~ matcrud~y cmmged
f"om %.asr firs*, t~aqsed .:~o9.. (M~t~r oJ' leircrsl,h~.
Corp. v. q~Vaish, ._.L ~X~. J~p. 652; 225 Abm Div.
Mcvtcr of Vessel v. WaIsh, 22; App. Div. 7a2; Mall~3r of
' I v. ,Valsh,, 221 Anm 1)ky. 7o~; M,.t, tlx:r ,g I i, co, l% v.
' 'W'a&~h. 225 App. Div. ~:!: ?~tmr of f~gf]gr~]] V. Walsh,
e · rek Swedish Hospital v.
2!3 App. D~v. 2,,9, Peop!~ ex
Ix, o, ",.29r M~sc. !~c,. 3,)0;~' 2!5 &pp... Div. 696: Mailer of
R:'h.or. ~5 A,~p. D~v. 570.) ~nder aection 7 (e) of the
Zoni,g !~u.t,ion thc .'~o~wd had aut}~or;~v {,t its dis-
erction to vary the feTal.at!on. (People r.r rd. (f/zurch.
v. Wednh. 244 ~r.~. y. :a':'~', ]'r,bgl~ ,,y rrq. ,q',;//,'~. v.
1/131.1 ONaion, pe~t Pox, sm I. !25.5 N. Y. 12~1
240 N. Y. 606; People ex tel. ~heldtm v. WoLsh, 234 N. Y.
4gf.) Under ~e~,ion 7 (c) the Board w~t$ jus~ifi,d in
re:u:hin~ ik~ decision. (l~eol,¢e, ex r¢l. Church v. l'Od.~h,
244 N. ¥. 250; Mailer 4 harlcin, Co. v. ,¥cAwo, b, 242 N. ¥.
330; People ex rel. Heah.I v. Wal.~h, ]194 App. Div. 9730
Po,tnlh J. The,.. question is whether thc Board of
Sta,d:trds and AppeaN of thc City of New York, reap,re!-
tnt, p,'operly gran*~d ~ application or Wilthan ltealty
Cor~ration, in~enor, ~ondent, for leave to erec~
theat, r,~ o,t its plot of !and con~+,RuO~g +,l,o enti-e block
;'r,,t ~m the westerly side of TItird avcntte, rum6,g;
h~ot deop on Seventy-~cond str{,~t and t33.4 feet on
~wmW-fimt street. The proCeed theatre is to have
204 leer, 4 bmhes, fmnt,~ on Third avenu% with a dvpth
of 125 fcet on ~venty.~eond street ami !t9 fe,~t, g
i,mbcs on ~vcnty-fimt s~,r~t. Under thc ~uffd;m~ Zone
Resolution al! prot~rty v. bu. tt[ng on Third ~tve,me :md for
100 feet westerly on the side sl;mets fa w}thbt the h,
dist,4ct. A portion of the pr,].~ed..the,tm, therefor%
extends htto the msiden~ (~%riet 25 feet o,, ~venty-
second street mid !9 feet 8 inch~ on ~venty-qmt
After a public he~g the app!~eation wa~ granted under
section 7 (e) of the B~ldkng Zone Resolution, which
as follows:
". } 7. U~ DNtricl Exe~tlons. ~e ~om-d of
created by Chap%r 5~ of the Laws of !916, ins.y,
appropriate mtaes, ~*~r public notice a,d hearing, and
subj~et ~o appropria*~ eon~tions m~d safegt,u-ds,
mine :md vary the application of the use district
tioms herein es~blhhed in Nm~ony with 0m~r
purt~e m~d in~nt ~ foRows: ·
"(c) Permit the ox*~mlon of ~ o~sting ~ l~sed
buihling ht~ a mom matrie~d dNtriet under such
ditions ~$ will safe~d the eh~me*~r of' the mom
~m;,'icted district."
[255 N. v. !'2t;' Opinion, per
Cond:tio~xs deemed stdtab!e by the Bor~di were adopted
to s~ee~,~rd a~d pr~erve ~he general character of
~m:~hberh~od and to mln~m.~ %he b~co~-~vonkm(~ of
hav'.-g tfe thca~.,'e cx~end beyond the ~:nc o~
op~,)~;5:on wn,'. en~t:ed e.s m~bter of !aw. (I'eep[~ e2 tel.
/ic:c )'<~k d,? Queens Gas Co. v. McCall, 245 U. S. 345, 348.)
,M%.ougb_ thc cha~nau of tb.e ~o~rd d~splaycd :~t thues
some :mv~t;cnce [owar& thc co,~ml for lbo petitioner,
no <.v~<~cncc o~ bias or favor~5~sm a~a~ on thc record.
prop....y owner,
~hen ob~.xed ,,n order of certko~ ~o review the
reheat:on or thc Board.. Others have jokaed wY.% hfm
in':crvepers. After the return ~,d. ~n filed 5o %e
~fon for [he order,. ~ mo,:on re[urnable gl Spcc;~: Term
w:m made on %.e pe~i~ioa, order, answer m~d return, for
a ':kin'2 order "que. shhg .qbe order o~ cer~im~r; iaqued
herein, dismissing the l~R!on herein and
:he de;erin:nation of said Bo:?d of SSandgrds :v~J. XppcaN
ca the me-its smd for s~hh o~,er and fur%er rc::,cf ~s
~he Cour~ shall seem jm[ and proper."
The Special Tern made an order eonfimSug the deel-
sion of ~hc Boe~d of S~aud~rd¢ t~d ApDoa}s and fur-
thor oyde?ed "~ha5 ~he smd eer~[or~M order be and
same he,by Lq quashed and a2 proceed;.r:~s ~he,'eunder
d'smesed."
Tho ,.ppelhmfs m~ke the po~t that" O~e motion being
one [o quash ~hc ~R~.on (order el cert~orwq), al! el the
~:!egat:on~ of the petkti(m nmst ~ deen:cd to be true.
Thc ~tRion f~ c:e~:y s~fEci~t ~q matter of Law."
(Fcop~e ez tel E~;e ~. R. Ce. v. ,~tole Tcx
2d5 N. Y.
A mo~ion ~o qu~h h h~ the n~tum of a demurrer ~ t~
~$i~[on and ~ not pro~riy m~e M~r the return is
filed, tf tho p:tpors on which the order o~ c,?t:or:~ri was
zra:~tcd ave i:?:uTeient iu 5,.w upon their face, a metiou
Opinion, pet Poty~u, J. [255 Iq. Y. 126!
may be made to va¢~),~ or qt,.t,.sh the order. The hearing
at St~citd Tern in ~k[s e~e w,;s no~ limited to gu attt,,ek
on the ~tition. !t was on the meri~. Subject to copt,dh
Emitations not Pr~en~ ~ tnt e~tse "the return must
be taken ~ ~nc!~siVe m~d gered on ms true." (People
ex ret. Lest~ v. Eno, 176 N. Y. 513, 5'~,,.,~ ThO hearing
w:~ upon the order ~.d re~um and the pape~ upon which
the order w~a grantea. (Civ. Proc. Act, ~ 12OO.) Jhe
Ln.d order confirmed the def~rmbmtion of the Board.
(Civ. Proc. Act, ~ 1305.) Clearly the word "quash"
w~m in~tve~utly u~d both [n the moving p, pe~a and
in the order in the sonm of ~ho word ·
of certiorari are no longer granted. In eorq~orzd proeced-
fi~ the eou~s formerly ~y.~shod writs where ~hey now
vacate order. The writ nomenclature h,~ beeoma
obso[o~ wi~h the writ
The further ~[nt is made that ~,ho Board had no juris-
d!etion to en~rtakn ,h,,,: .c "~: · *;, [t ],,,.d..
Ju~y, 1927, d~. the app[[ca[im~ of tho rcspondcn~.-
i,t~rvencr upon the same s~ato of fae~q and that such
derision w~ fi:m!, and not subject to
. (; . W ,)y t}te [~o:trd
~t~!f. ~e~er or no~
decide ¢~ wi~h fi~ll[y on ~ho ~:.~e fools o, co presony~d
for ff~ eoxmJ, dera[ion, if now plmte materially c~a, ge ~ho
~q~e~ Of [ho e~% a new appiic,,Sfon m~y be
new de~mhm~ion h~.. (5',~ Matt~ of Rik,.,. v. Bmtrd of
Sta'~ds (~ APl~als, 225 App. Div. 570.) [he pbmn on
which ~ho Board pe.~d on July !7, !928, were m'~t She
s~m ~s ghee submi[~ ;-n 1~7. True the Board had
power ~ 1927 $o make eh~.ges in the phum which
d~md or d~med ne~
app~catmn. ' ' but [t did' uO~'e~:ho.tmt
by den~ng the appl;,eatlen. ~f it d~med the plans
[nadequa~ to j~qtffy ftworable action thereon it might
wait ~til proof pla.~s were subndtted on a new apnlica-
t[on, or it might exerd~e ~ rower to e~xlt~ tm, m tho
pi:ms :md approve t!iem as thu~s motUfied.
~.3~ ~Aq't'.'~P. Or ~n v. ]~D. or ~qTAN~DA~DB ~5 APt'EA;~.q.
!2Z,5 N. Y. 2'2t3! O.hfion ~)r Povm~ ff.
We mtmt as~sumc that the new p!:ws materi:d!y changed
~hc Hspec~ o~ ~hc e,Sgim~ e~ ~or they do pur~rt
m?oduce numero,~ eetat;s wtdeh were no; provided for
kn ;',, ?:v ,~ .lv.s ~d w~eh ~ deemed ~o [~
..... tx.. +% ~nt,,., 5 is dcmons~ra*~d. The ]~oard may
"g[ve w.;*?,t to sl:,,'h~ d.~fferen~ w~ch are not
v. ~c~ wt~[~ .,52 ~. Y.
¢;~:;eemJ. D (,.G~(*,ggzr of Lark,>~, Co. ' ")
*": 33(;.)
khe e3def content[on of the ap~!!ant on ~..e
"th,~,t kY *' p~ .... ," ~82 :,,u~ 184 East Seveuty-seeond
stve,,t pz~d. ~gq smd I~ *""s~ S ~venty-first s~ 'cat are
........ ~¢c vu~mo~s ~.n conform~.t~ wttb thc ~.;uurove-
medis now a.tu,u.y eyZst~ng, they .wou~d yk~k', a fair
return on the iuvestmcnt of thc ao~licaut, :m,' ~, * ~,n
the eveut that the owner desked to demolish these
y,'em~.:cs, the s[+~s upon which the into. ,~ ......
t . ~ ,,' aD. awp[kcat~_on under sectkm 7 f,a ' th,,
Zone ~ ' +' ~(,que. ,~y ~ta+,cd ~vmre the
.aeso.,.unon to the mit r., .n*~ · .
a~:)Hc:~tie,,. ;g made under ~uEd. ing ZoFe ~
.'d,,, thc advantage to ash, gle property ow:tel which
would come from a modJfic~t[on of the ,as, . ,: - +,])~,t
w[u~ther the property umc[er eo~mderatm~ Js more sultabh~
r '; ~, for a pcrnfitk~d o,e ~s
(.,., a.,e, (~' , ,t'dAman v. ;¢oard ,.f Standmdx & ,4 iV, cats, 222
,;.t,.,~4,~.Y. 599.) ],u s{tt.L.$7 2t
are ~ndependent prov~s[e~m eonfcrr~g tt~;net v, ud
~a¢~. When th. app ,, ~,~(),t is made
..... e...e. ~_o..~ 2. it must be shown that" there are oract~.eal
,~:g:~ ,'*;~s or ~ne~a~y na.'~ps ~ the way of carry-
~n~ out t~e str:~ct letter of the pro~sions of th[~
~lon wn:.ch ~ustEy a variance ~ ~ o :~ .... but
a ~p ~c ...c c. st., the
~e. ble usc Lq uot enough to ~t)~tify tho Board ~.;~ g'~'s,ntin~ the
MA'I'I'~R Or -.'P~ESD V. BP. O? S'"A..NDAR~S & APPEALS. 135
31 Opi I ) , 1)ir POUND, ,! [255 N. Y. 1261
would be at the mercy of ~he Board. Wl,e. the ,~,pl,)i-
cation is made under section 7 am! the appr,q)ritd~ sub-
division thereof th~'~ek gf']nqu];ry is rest4eted.
not neee~try to aHe.a or Drove the fite(.q ,,,.,irt*d
the apl)hcatlot~ k~ m~e u~der ~eet~on 2[ nor for the Board
to make a decision thereon. The Board must b~ each
cl~qc set o~ sonic ~e~onab[e b,.~iH bi hnrmony with the
general puLDo~)of the res0ht~(m. Notbb~g more
reqti[rq([~ (l'eopk ~z ml. ,qm.ith v. W~lsh, ~I.I'Api)i Div.'
295; agd., 240 N. Y. S 3.) U,der see~bn 7 (el th~, clem, mt
of "public health, safeqy ~nd general weTare"
emphasized as in section 21, ,,lthougb it m:,,y wtd! l,,, take,~
into eonsiderat].on. The que%ion of hardship to the
b~d~vldual owner lw~omcs g ,note rnate~:)J clem,mt ;)t thc
detemfination of the aDp!lest]on. May h(, be allowed
"trader such conditions a~ will sarc~u:u.d file ch:u'ac(er of
thc ,n¢,'e restricted d~str[ct" to extend his "cx;$~.;,~ or
prop,seal bu~k~b~g D~to a more ri,strUtted tHs~,rh%?"
The variation may be made to nu~et the sDe(tfic case
order to enable the ow.er % make a r,]~k~o.:d)~c
proflt:~!)Ye usc of bis p,'opcrty if ~t can be d,me wi).h,)ut
v~olc,me to the geee.:d zo.F,g pbm and with,,.~t
stfi,stanti~l ~ncon~cn~e,ee to t})c immediate nc~gh),of
hood, :~Jthough tt)o applicant haq no r]gl~t to insist upon
a &eision in his ~avor.
A Umatre lI~0 [eo~ deep would in a legal sen~ be
no intrusion on ~hc restricted distriet, however um.h~ir-
able it might ~ as a neiglxb(,w. (liven the prolwt~d
ex~nsion of a Bga! buildLng i.~ a m(m~ r{~t;ictcd
Otric~, two fundmnen~al eom~deraUo);s nmst prevail
in order ~o enahle the Board ~ pro(~cd umler
7 (c). The general pu~om of the zoning
must ~ respec~d m~d the more r~tricted district
mus~ be ~ffegu~ded. !t ~s probable, g~ least
;hat a t. hea~re 150 fee~ deep with main exits on the streets
h~ the restrie~d district would be, :ks m,.tt(,r or )wa,, so
out of h:gmony with' the general purpose of ~he zoning
,,.~., .... N~ ..... ',' 7,%'G] Ol)i~[onl pot PolJ~o, J. .! m ,
resolution as to make it imm~slble *,~o safeguard the
eh,;-o,e?r o{ Om more rest. rlc~d dLstr;et. ~f so, ~ decision
h~ favor of the applicant ~g}~t ~ held an arbRrp, ry
s~, ~buse of d~emtion. The qu~tion ~ o,m of de,me.
Zhe lSno must ~ ~-avm somewhe~. Th~ erase may be
ne,w 5~e border JJne. If the Bo~d m~y permit
!m}kH'~g to be erected to ~ ex~nd¢~ a fo.t o~ so iuto
the mo-o regtrleted dJ~tr!et, it does not follow that
m~,y petit the building so to ~ e~n&~d indef, ngely.
The rule of re~qonaNxmes~ must be ,opplie~,. The Board
1~¢ ~ wide stop,Lb~ t]xc exer(Ssc of [~s disere, tion whrmevcr
f~:,~mm ~Sf. ~. Church v. YfeL4b 244 N. X. nB0, 2~9.)
if such an ~,ppJJeagion is dealed the only quesSion for
%h.e cottr% is whether ~ho petitioner has beeu 5llcgaflg
opprc,t~ed. (g~'aff~ of Lo, rki~ Co. v. ,9c/*wv, b, supra, p.
3350 When the application ~ ~m~d the quesnon ,,~
power only ~ to be eorzk!ered. !s the }~etlon of the
l~oa~d unj~stiSsfo!e ~a matter of l~w ,md, er the spee~6e pro-
visions of ~he zo~ng resoT, ution ~JJed on? 7~ ma~Ser of
!aw it c~mnot be said that thc action ot the Board
p~:~l[ug the extension of the proposed theatre hg~ the
more restricted district render section 7 (c) is wRhout
evidence to support it. ~q the Bo~d ~ted wkh~n
jurisdiction, its detem~at[on ~s not to be set
The order should be a~nned, with costs.
and l{vnns, JJ.,
Order g!!irmed.
Ba~m v.,N.~w Aw~.i~ra)~ CAsvxu~ Co. 137
!931.J 8t~tl~mon~ of ~so. [~55 ~q'. Y. 137]
8A~.V~ ]3~y..q..~.~, ~ondcnt, v. lV~w Aj~s.-mm>x
~o po~om" ~ ' ~o~ ~" ~lud~ husband's loss
so~cos of ~.fo-- p~cy o~n~ "bod, l~ t~.~u~e~ or do~h"
o~ ~e res~ ~rom ~ ~ her -- ~oD,cy mol in(:ons!s[en~
2. A polioy of l~bEity inmtr~ covering ~t,;den~ restult~q~ iu
(Cons. L~ws, eh. ~).
3. Au ~on, tJt~fom, ~ot ~ ~ntmlued under ~tion
of the ]nsu~n~ I~w (Copz. l~wa, ch. ~) ~> req~ow~r from an inmm~r,
which ~! i~u~ sueh g ~Hey, ~ho amouu[ o~ ~ judgment
injuries ~ ~he p~int~'a ~o in ~ w~mobi[o ~e~do~t,
"hod{fy i~udos" from tho [o~ of ~s ~fo's
4; A contrition ~.t the polioy N in~nslstent with tho r~uirt~
clau~, but ~t it ~y ~ ~nit~ in amount and e~ve~m *~s the
Brus~:~* v. NeW ,4~[~am Cas~It9 Co., 2:~App. Div. 716,
Supreme Court, Doo~mber, [930.
Whel-u thm'e is no boant of appeals, in,rancors are' ~' ~ ~i~ which
dm ooart~ mus~ under tho law d~l~ u~o~nablo gad ~bitmry
and, O~a~fo~, wild."
Wil,h a prop~ rly constit, ut~ ~ard of gp~s, ~e qu~tlons here
pre~'m,~d could hove }~m iron~ out and a ~htm ~*ached which,
ff m'Mne ~mlship existed, would tend to ml~ ~e ~tmmes thereof.
ge.ia~ ordin.nc,~ are not in~ndcd ~ ~ ~d ca]mot long con-
~,mue to ia, mere .atraitj:mke&q ~ ~ appliot ~d held rind by purely
bareauaratic aulJmrii, y. The let~r of ~e or~an~ mint ~yield,
in i,~;.auecs of extreme hardship, and accord~g ~ ~ndRi0ns of'
:kre~res;-,ihle growl.it and development, l~o~rly
z~m~ng ordinnnces do not destroy but add ~ values;
~Mmi~fi>:~,,'ed ,',e ~lopt~, wi~.hout regard ~ ~e proper ~mits
[~u*r, t;hey lme~mo instrumenks of hard~ip ~d of tyranny.
~.n tuffy }m reiiev~ by multitud~om appDeations ~ the
co~rt. Tho final deh~xmhmtion of the pro~ applicatkm of the
· ~qil~ ~q nd,q,¢d Ought ~ot, to be left ~ the find dcte~aination
u~'an admlnkstrat'.ive officer, bat a eitizen ag~eved ~o~d have
o~rfamiky t~ ~q~pc:fl ~ ~ quflsMudicial b~y ~th power ~ ~icw
mid ntedy the sihsat, ion, ~,ho~ dete~in~tion, in fi~e absence of
brat fafl. h or ahn~ of dL~cmtion, wo~d ~ely ~ disturbed u~n
]'n vleW of the e~umst:mees, ~}~e appilen,~ion for an order oJ
~m,r.p~,ory m~mdamn8 nms[ be de-ak.d, 7oc t~e ma~n [ha~. the f. et~
~,~ces~a.ry h) deh~rmlne whe~h{'r nmndamns slmuld i'.~suo are not
~ufficimfl,I7 ~fnm the eonrt, q he petition~ ~ tiffs ¢~'eng a~ks for
~:o p~u~ submit~d nln,U lbo a'pplicatlo'a consist o[ 'the petition,
'tJ'JO ~alaw(u' of O~o r{,al)ond(qd g, lhe Tg~l ~l,~oncr's reply to ~neL ..swot,
~t}t~, reply of the respomh'nts to such reply.
~e petllaoner :filegcs t,h.~t the st,,,tu,es of ghe Skqlc of New Ye:k,
~m. Dox.~s~ona el the ehaiur of the c ~y of Syracu~ p?ov~mng for
I, he city phuming connnisMon, the acti, m 'i;aken by thc city plmufing
commiasien on Jui/o 10, 1925, mq afore~fid, the action of*he ~mmon
counei[ of il~o city of S3.r:mu~ on q~ai)out Ap~ 23, 1930, and
~ho adoi&ing of the building code k,r [he c~ty of 8~*acuse, am
ktva.ikl and in.ff~et~ve ~ ~ainst the petitioner and ~ violatkm
of ~,'~l;ion 6 ef nrticle 1 of tim (kmstitutiun of the Stale of New York
nmi [or of tho Fifflt ~ Fou~mt,h Amen(hnen~ ~ tim C6ns;kution
or tim Unimd $~tW~, in that in their o~ration Oley deprive ~c
~tk.lo~mr of his pmia~y wil~out duo pr~*~ of law.
'l'bi~m tim other alk.~tio~m in ~ps~ct h) qu(~tions of (mnstitui.iom~
ls.w' kavolv,.l, but the fen.going arc sufficient h) show that
: <4.;; k,;zr h,m rtt~d qu~thms (,[ son,.tlta'tioaM ri~Lt.
~:iso. i171 ,~ap~mo C:mrt, Jmy,' 'tO31.
~e further "
a.c~es ,nat the building c~de and zoning ordinance
were not legally rah,pi.ed.
It h ~ ia~ now to question ~cneml~y ;he corztkufiona:~y
properly ~op~d zoning ord~a,nccs. Wn~e in general '&e ordi-
7~.~my 1~ ~nstlt, u~ional and a pro~'e exercise o;' nu}?eipak
06W{~'X~'et they may in ~eir applicatinn ~ n partic~:n' s~uation
~ &dfitra~ and um'camnable and work an m-xlue hardship to an
indi~i{lual m such afl cx~nt that they rctay bo, in ~cir ap'plicat~on
m a~:~t.icular sitnaiion, not within the poZ~ ~wem of {.he munici-
pMity;~and may operate ~ deprive a ei~ken of eonatitu~ional righis
iff ~S~et ~ the um and occupancy of h;s p. ope, ~y. Whether tlSs
is tree or not dcl~n~ u~n qu~tior~ of fact applicable ~
particular situation.
While I fLs~l that a.n order of ~remptory mandam~ cannot J~;a
i think the situation is such that an alternative nqandamu~ crier
shmfld ~ssue, ~ the end that the faci~ may ~ ~" - -~-- ,
and, with ali the fac(s and c~rcmi;stanccs before the court, :*
· ~ ~say
~ in ~sition ~ paaq upon thc questio~ ra~d in ~e papci~ sub-
mttea on this apphc.,,:on.
[~ an ail,creative ' order ~fqsu% ~no ~o~ m w~lcn --
l~ agreed upon by thc parties, and, ff not agreed upon, may
~:(,cmd accordmgiy.
In ilo ~'rati.er of. lh,'~ Appllcn,",'ior. of ::f:,;xm' J. VAx
D~til.ioner, for an Orac:' of ~:andamus a~'a:n~t 5Vxl,~t~t
](i5{M~iY, lis Suls~rim,endent of tho Bureau of 25uilding of tee
City of Syrncu~; W. W. ~riAND, ns Co~iq:ia, ionc;' of Pubiic
S:ffcty of the (;il.y ,,f ;qyrn.cuse, alHi ~();,I,ANI) ]~. ~M;VIN,
Mayor of thc City of Syracmm, Y~sponaents.
Supreme Cou~, Onond.~ County, .;uly 27, 1931.
elOCon. City Lr~w. ~ 20, subd. 24 .--- per, et to ost;~l~:iaX "~-i,:~ck llnoz"
struction and use beyond uso of propo~y ~ it existed a,; time of
lishmont ~ d~t~ct in w~ch poMtlonor's propo~y i~ locmgod ~ rovoc&-
tion of permit w~ proper ~ m~aim~ denied.
{}11 1]tis :q)plieatkm fi)r an order Of mandr, mus to compel the canci4iatioa of
order revoking a imrntit for ~ho nitration or pohLionor'a property ia ~ho ci;y
..~F._AS~I~II OF VAW AOr, J~N ~. l(t~u3~.,¥.
Supreme Court, July, IOBL
[Vol, 14!
,,-,,vLd0ns ost~b!is!~ng so-ealled "setback lines" ~ ~ tho st~t on which
~, PLICA,.~OX for P,~ order of mancam~s.
Cos~el~o, Coo~3 & Fear~,, for ~he mti~ioner.
Fra~2 ~. ~olpess, Corporation Cm~n~el, for W:dte, ~. l{imm.cy,
commissioner of pubEc safety, mxd ~o:zanu _:3. _~h~rviu, :,.s mayor
of ~c c%y of Syracuse.
S/ap~o & Mark~gtz, for M~rve~g ms~ndeuts.
S~{IT}~, ~. N., ~. I find no tel)soil lo a!%r the vk,ws exl)r~ed in
thc i~elIlor~d~ll H~a~e at the tlmc of ~r:mti,g a)t :alit'ch:e Jvc order
o~ tee p~vL~ions of the ordinance ~$ D} set-back llqes.
~41 ~c. !~.) t~fcmnce i~ here made ~ i.h;~t memorandum,
winch iM ~ado m ~ far a part hereof. ! wi!l, however,
Sac v,ew8 .iicrem expre~., ~ the effect llmt thc l~('wcr to
se<ab.cc, se%back !in~, if any, docs Itot arise out ~,~' hc y~oxve)' to
1V[iso. 1!7] ,, Sup.eme Couv+~, Ju}y, 1931.
estab!Lqhing of set-back lines is no part of" zoning." The authority
to ~ta})lL~h "~b~k lines" finds its origin in su~ivisi(m 24 o~
section ~ of thc General City Law (added by Laws of 1913, chap.
483, ~ amd. by ~ of !~5, c~p. 394). ThL~ provision
b~n quo~d in 0~e me~nor~dmn hem~fl)~ qled herein. ~ f~
municipa! ~wer exists ~ ~taNia)l ~)~back lines, within U~e !bnits
o~ co~mtitutionM provMor, q protecting thc rights of 1)rivate property,
Ods power m~ be derived from Om ~)llec I.)wer and be rela*~d
co)uqidemtions of public health ~d ImbUe safety ,md k~neraI
Sectio)~ 20, subdiv~n 24, &~]ares this ))a~ when ~(. states: "S,.~h
rcg~a~ions 8~1~ be desi~d 9~ ~cuve safe!y from ti,'e a)~d
daugcm and )~ promo~ public health and welfare, inch)db~g,
far as conditions may pcrw;t, l)rovls~on fi,r adequa~ Iigl,t, ~dr
eo)tveuieueo of acces.% aud ~all he m~le wi0t reasmm.))le )'e~ard
~ the cbarac%r of buHdln~ erected b~ each district, the va)ue
laud and Cbc use ~ which i~ may ~ ))ut, ~) thc end fl)at mwh
rc~alat~ons my promot~ pub~ hca!kb, ~a~cty and welfx~ a)~d
mos~ desirable u.ge ~or w~ich ~be hind of each d~tric~ may }~ ~),da.~,,>j '
a,~d m.q,y )~nd f~ conserve tb.e vnl.e ~ 5u:L);-,.m .,.J .,,),~.,.~
value of land tl~ou~hout the city."
The courts w(,n~ a !(mg way in ex~mdb~g t)m rpplicatlm~ ~[ tha
~)]i,~e power so es ~ Jnc!ud.c "zoning' wit)tb~ its aeoim.
d~tlons of li% 5n cities' rather ~mpet~ed an extension ~,f form,r
concepts of the ~,l~ce ~)wer. Thc courts however, bare )s,en
~ limit the aco!~ of zoning on!~n:me¢au they must )x~ adopted,
i~ to be sustained, i~ accordance with a weqq~o~sidc~d and
prehcnsivc plan, ;~ne-M ~n i~ a~hcaOcm, and be largely
u~n ihe proposition ~.at u~n p.m~r application tlmre would
% no re,l d:m~a~ ca~.-~ the indivkhud pnq~,.~y owner.
Variants ~y ~ allowed bt ca~s of undu¢~ hardshio. Arbitrariee~
Js overcome by the ~t~ing up o~ boar& of :q~l ~ excepting in
Syrac~, N. Y, w~ch hf~ no such }mard.
The "~t-baek lhxe ' prov~oxka, ],x~wcver, do no~ rebt~e ~
ek~rac~r of u~ ~ wlfieh p~rty may k~ put. They have [~n~a '
necessary l~gely ~eam~ of the growth M 9m helgbt of
the effect of which was ~ ~ut out light e. nd ~ and b) cre~ mt
bu~re:t~ of tim hazay~. Thc f~t that they m~v oD~:rabl k~ impmvo
thc ap~a~mqce of a sf~eet from an ~sthctic sta~,d;~int N an incident
and not a ptt~. The qu~tion b, in every efl',~rt ~ estab!kh
-~aEed "a~t-back lin~," whe~er tMt effort k motivated tW
co~mideratio~ of public he~th, of punic siffc~y, of genecM welfare.
Side b~g !Mes ~d l~a~on of buik[i,g~ in relation ~
Yo~),r are qui~ s.,, g no~ mo~, i,n~rtant fi'om the~ sta,dlu)b,ts.
R ~s qu~ evident Caat ~e ~dled "~b:.<k l~e,
..qUl~rOmo Courl;, July, 193L [Vol. Ial
of the or'J~n:uqce of thc cJ~y of Syr,'~cu.,~ were not enacLed
zeg:~'d t~ these q3x, s~ions of public health, safety and generM
welfare, X~catL~c no gcner~ r~c c~ ~ adopted which ol~ra~s
~dike in res?e~ '~ hea~th, snf(4y o~d ~ner~d welf~-c in a p:,;'ticu!a~
y~ret'!s vary; he]~Zh~ o.c bulk[;n~ vary; eolldii,hms of s!a'uetures
v:uw. The fac~ ~hat one d[str~ct m:,.y be el:tss;ficd
"A-!~cg~denthd' ai,d aroGmr district as "B-i~.esk!cntial" would
~o~ authorize the ci~ablish~ng of a tweinty-roo~ sc%back !lac ~ one
5z~sSance and :,, 5en-foo~ seg-back lhte ht :mothvr, b:,.'.aed ut)o~ con-
siderat~ons of pubic heaRh avd ~fe~y or tff subd]visidJn 24 of
sc:?.:.cn 29 of the General CRy Law. Mm~over, the pmvis~ovs
arbRrary, in that there ~ given no op~rtunity for va-brace or for
rcv:~,w. In expressing thc [crc~ob~g vSews the cruse of Goffcb v.
Fo:~ (274 Lr. % qC~) h,~ r.ot be~m ovcrlooS,~d. Thc views hem
B'}!/ql ?oper!y read.
0!em wou'.d bo no hes~.t:it:on ~n gr:mti,~g t!,,~ order of mandamus.
~ follows: "it -emahLs +z, :)c consid.ercd w%,~)~cr or not, W~ttt!'O
thc cs'xxb~ ~h.ncn5 mi 3he block- i~t which i% is I,~c::%.J as :,, B-,'cs~dentlal
disg':ct, thc ,;trucSm'os may bc e,C:u'gcd :C'tv, q~e eztablishment
cf thc res[d, en!.h~2 dis;,r~ct so :',s % occupy mom (,f the hind for a
then t~rohibited bus;ness purp,)~e th/tu was c,-cul)b~d 1)y thc ori~i,~rj.
structure." !t WaS ~ aU. ow for :',n ex:tmiu:tti~m oc t}ds ques~.ie%
i~tst:mee such ts h:u'dslqp w:m bebt;; worked u?Et Lit, petitioner that
his const[tutkma[ rights {x~ property h~¢ bc~ut i.vadcd that tho
a!ter~[atlve order w:u~ gr~mted.
At tke time wlmn the z~king ordinances went in~ effect in the
city of S3~acme, thc petitioner had tho uudls3,uted right to ma~tain
h~ busineas in tee b~l~tgs as tboy then ex;s~d. The question
!eft open ws~ whether or not the st~,mture ccu!d be enlarged and
the busLness ex~nc'/~d, mtd ~ tm what power tSer,~ was in the city
gover?p~,:n% unde~ the ordinances r.~ they existed, in rc%tcnce[to
the situatfon ~vhlch :u'iqes fi'om *2ac pu,'posc of t}..~, petit%ncr
~nlarge h~s buEdinf~s. T}~cre i~; no wm'r:mt in · ~m fttet:~ o
for i~'.e revocation of %he ?,trait granted {,y il,' sul~e,'b,te:,dent o
7>rcvJ/' '' [J'.'),~ 2.5 ()'/' ~:'r.9 xx-h,:.t~ "k9 pert,fit w;,.* ~,",,',5,~t[ ~',,
Ma.:.-i,m OF VaN AUXIN v. K~m~mv. ] 2!
Mism 117] gupromo Court, July, 193!.
power ~ ~-ant it, btxxatkm the amdit;..s which umler the
visions of the buil~ng e~e authorize tlie revocation of n Imrmit
once ~an~d did not exist. ~ the inquiry hero most }m mhh'e~ed
!,. tit. (lu stion as ~ whether or n t ti ~ a, p · t~ mh f of the btm'at.
of I,Idldb,g had the power ill the [}{'sl, i,,sL;t,,,'o ~, grant the I,erloii,.
'.l'ho ,nutficipal authorities could have pr ,vided, I,y ~uit,al,h~ ordi-
ila~lee, for a tolerance or variimce in ,'esl,,~ct to the matt.r, so m, ~
~ void unnc(essary h:wdsh p upon an owt,er. Thc zo,dng ordioaoee
of the city reeo~ia~s the ri~t ~ , nt] ,ma busin.ss i~t exi~umee
,t~'' thc t~e when a ~strtet is changed i,t its c!:~ssifk':dion from
busblesq ~ a r~sidential district; thc business nmy {x,,tthme, m.y
d,,ve!op, may: a ' '
nl~ea,.e, within the structures thlm in ex~stmw~. As
the businass ~ows, and if it grows },~yo,td tho capacity of exis!Jng
st,'uctums,, may tJ~ose then there 1~ el~l;u.lLt~d, lutd linty. ....~,,),,~.,
bc occupk~d by ncw b,~Idj.~, in order to ~tce,,~rlm,,d~t{a, tl,e intreat.;
,,. does the ch:taKing of the dlstr~et from busin-ss ~ reside d bd ~
nddi~ ionM construction?
'l'hru~ of the prov}shms of the ~,t;,,~ ord~n:mec b, mrb~g
{}~iS (I~CSt[O~ }l~ve tdmady b(um quoted in thc l~te~tlor~tn((tl~n lo,de
upon the g'a, tti~,~ of O, ~ a[!~r~:tt, ive order of ,natal,taus: They
nm Article V.4.2, ~ticle V.4.3 and Art,i,% V4. There J~ ,. fourth
provision, which
"At'tide 5.4.7. Cond~tlomfi ~m. When in ils judk~,mt tl~e
public ~m~denee and we~am wi}l ~, substantially ~,'vcd ,w the
:tpproor~a~ ~se of neighboring property w~[[ not l~
or ls~rmanently injured, Otc [~]:~llt[~lg, .Parks ltlid ]lem'enti, m
mission may,. wi~ the approw~J o~ thc' (,*~ ninon Cou' w'~, ht .. sl,cc}fic
c:;m, authorize a coaditlomd, use in a d~sLrict wherein a.eh .a~ }s
pmhibi~d. Thc comtitio.s sh:dl !~ s~..:i6ed in writi.g i.
permit and s}ud[ in no way be construed ms allowi:,g I,h,: l,ro~wly
;my other tt~ t}mn the Sl)cci{ic'.sc for which the permit ia is~
Theso ~e the tuffy provisions Jn tl,o m,:d.g ordint, n,'e
govern the qtt¢~stion of yin'lance, m:d ].rye m, relation to the
which m'k~ herein. ~, khorofore, ~:s a maLh~r of ].atv, th. lam'er
cxtcnd a ~e at the thne authorized by way o[ enh.'gc,,:cnt of
building struetu~ on ~tio,,~ ..rea for ,t purl.~So pr,.hibited
within a ~denti~ '~iot did not cxNt. then the ~rm}t }mu,k{
:md the ~ ~d.~cup~ey of it !~yond tN, use of the
.s it exist,'4 at the tbne o¢' the csLat¢[sh,,,,.n~ of tho disl r;ct i. which
O,c v,'.mi~s of the l~titkmer arc 1,~ea%d .s a B-,',,s;dc,~i~d di~tri,~t.
x~ .b,s already been int~nuttod, there S~ ~ ~g 1~ },I'OV!S~t
V' 4:, (.: or t, le ':~, ~,' n ':ts's W},ere ondut~ ]mr~{sh}p m:,.v I., w,,rked
M^'~ o: 5fmc A'CK~ v.
Sup~no Co~-'% July, !t~qt. [Vol. ~4!.
~v2 the action of the supe,'mtenaen~ of b,~k~in~ i,~ sueh instauee~
h,?ak'_ be vu"~ject 9., review by a pro~rly constituted beard of
~:~,,~ ~'~, to the ctd that v~bRrary action or me~ pol.~tk(a] i~ucn~a
w. ucm~ sue:1 ..... nr~y ., . '.
.% bu~?]n~ ?trait b~ th;.s pt~ticeb? b.~t~cc, aed its ~romI,t
n.,o cspe( :~.:3 qua].'9.ec: b) ~'tclg(~ (,n the subh ct v,'o,a~, op'
. ' ' *ov;-,'e,~s ,e ~hc zou~ug or~U.ng.nce
-.,.~[,~ont :'.'. (.:tstrlct r~ttrs, uant to t~e 9 ......
· ' ' ' a dis~ri(t an(: !(ns-, to the
o: m:;ndam:z~ mvst be deuced.
ev~d(,.uce ;'~ thc c:,se f~ ~s to dL~c,.oae any set of cS.cvm~tances
b 4.'~ wor!.;c([ upon the >t ........ - -
za~ ordhumce. ~'h~ ~etitkmer ~, n~,t ,x,m~z i,,~e,",'crcd w,th m
u~ smd oc~u~aucy of h~z property :~ it existed at the time when
' ~, + the ,~ ','~:" of o' for the e,mve,6once of
cusk)mers applyh~g for 0. simply of ga~eHne or oi~, as a protection
~ them from ra3n or sunshine[ wo~d not ~nstitute an. ~n'e~mable
-
exie~on e~ use. ~ coupe upon the same fo~dahon, upon
· - , bu,c m~ code, ~rha~
pL~mee w~tn the ~nera! prov~siovz of the :' '; ·
would not be a v~o~atlon of the zon~g ordhm~w~ to ;,,-,'~m~ the
~;ght of the structm~ withiu the same area e,s t. vc p,'e~cut stvt~.ctu:~
' ' ", '~' to
'~t, .:."t~tea, a.n4 undoubtedly they w,~uJd not be met with (,bect
~ the ~)et'.tion,r has here shown ls, 5y an expe~'t w~i-ess, th ,',
Co., TNt., v. KRAKAWrCA. ] ~.~
Mi~. 123} County Court, Jefferson £hm.ty, July,
true .as to other property on the street. The restrictions of zoning
ordi;mnces be. come one of thc burdens of citize~mlfip which under
the law ~a now eo~mtituk~d ~d upheh! a eitizen m~t endure,
except;ng ~ il;sbin~8 Of undue hardship. There is ,othiug here
~ show the Ibniiatio~m t,~>n lmsiness ~ olx,'~,,ted hy O~e Imtiti, m,,r
which are caused by the rerus~ ~ grant Otis permit. A
by m:tnd:unus is essentially one in law, :,nd, while tho line wi,era
!aw eytcks and equity ~d other eot~siderat, ions I,egb~ is not clearly
marked, t~e ~t+~r practice ~ems ~ t¢ ~ coefi,u~ this
pct~t.ioner here might ~ able to preseut a ~tate ot f~LCtS front which
a cour~ couAd infer tha~ he w~ a suffcn~r fr, m undue hardshh); he
},:;s f:d':cd ~ do so here. The p,'oeeedi,,,~ would Ts, sin,p}ilied
O,erc were estahUshed a board of ap,-~:d8 {gdk)re wbo~n all
i,ti(,,'est~,! nd~ht be heard, whose actb,.t, qu:u~iqudiehd, i~tig}tt
rcv}(~wed by ccrt, io~:~i.
Thc pctRion for an order of mandamus ~ denied.
Ordered accordLngly.
~md ~other, .Dcfendxnts.
Coun~ ~urt, Jo~on Count.V, July 24, !931.
~v~e~--pmyment~ ~tlon for p~ch~ prtc~ of s~con~ m~t of cha~
b~oc~ (Por~. Prop. ~w, ~ 129)~ nor were th,y bo~_ud to rotan
set ([ors. ~rop. Law, ~ 13!)~ Co~.plaint
the eontr~t they ~mplo~{ th~ ~ of tho ~m~,ntent and p~aintiff
Mmuo~ by defendants for nonmdt in aetk,n fl)r g,~,d~ sold and
dc'jvered.
OCTOBER TERM, i',)20.
Oplnioa of the C~ur~.
~* The evidence of n~c0rd upon which a condu~io-r, may
be ~e~ched as io the di~ninat~ .~ .
~ta~ rai~ on ~t~n~ ~d ~tton~ ~e, m~, and
h~ now in effec~ in Ark~,~ ~nd on ~ the~ ~mmodi-
ties applying betw~n ~in~ in ~uisi~a ~ ve~ meager.
We am not inform~ ~ to the rou~s over which
ihe ~s~ iatmsta~ rates app,, ~d p~cular
i~st~;~s of discriminat~a h~ ~e p~t ra~
~e R~ib,o~ ~nccdes ~t intrigue' Arkm~ r~es
~ not within the terms of ~e order of ~e l'cder~
mi~on ia ~e Ok~ho~ Comm~ e~. i~ ~umen~
~ that in ~he Memph~-S~thwestera ~ i~ w~ o~ercd
~]m~. ~he ~JcmphLq to Arkansas rates should.not ex~d the
~ sands mtrast~ie ~t~; that ~t order h~ not been rc-
~. n(i,~; m~d'h(mce that when the ~tc~a~ r~te from
Memphis f~ Arkau~s w~ ra~d ~ a ~ult ~f fl~c Okl~
l~,vma. Uomm~s~n c:~, it bede the duty o~ the ra~-
ro~ds ~o mi~ ~he tarfa:irate rat~ to a cqcce~ond~g dc-
~r,:c. ~Jit it appea~ that ~ the ~ter ~ the Inter-
~z~:e Commerce Commis~on ~nside~ the prop~ety
~r& :ir, g thc Arkar~ intr~xte ra~s ~ ~ the ncw
]~wq. and ~vfu~d to do ~. The~ w~ no rescission
~,~m-~[~ of ~he fosner o~er. But when ~ne two o~c~ arc
~'ea,'] togeiher, ~S ~ey must be, it is cI~ that ~e ~m-
coostrued its ear,er order ~ ~qu~ng only
~ho Ark~mm~s ra~s should not 'be lower than the interstate
~fo:~q)his ~o Arkans~ rates prc~ ~ ~a$ ~,
~u:q: aa (hey should be maintainS.'
~vil:h ~uthw~h~ra ra~, April 5, 1927, gPl)(~rs not ~ apply ~
~)oommd;~y ral~ on eolmn~e~ and i~ p~ucta he~ in questinn,
4~-~. ~ ~ Company ~ ~ ~h~ T~, 101
GORiEB v. i~OX.
597 Syllabus.
6O3
GOi:tiEB v. FOX ~,' A~..
No. 799. Submitted April 25, 1927.--Decided May 3i, 192'7.
1. Whether a provision of a city ordlnrmce fixing ;; b'diklin~ kine wBi;
relati{m 1.o thc loca~2on of a specii,txi i)crcenlago of exist~a~ 1 o~cs
plicatiom ~ m ~ount to a dcni~ of due proc~ of law, k :[
qu~tion which ~n no~ ~ comidcred in ,~ ~ where, upon fac
s~eiaI fi;~z, it w~ definite enough, ~,a where file lobowr,er had
~n cx~p~d from ~e pmv~on by ~ city ~o~. P. ~.
The in[entim~ to interfere with the state function of
-regulating intrasiate r~tes is not ~o be ~resumed. ~,'Wnere
there is · ~rious doub~ whether an order of the inter-
s~ate Commerge Comrai~ion extends to in~r~ta~a rates,
ibc doubt ~ould be resolved in iavor of ~ae s~te [~ower.
if, ~ ~e ~lro~ bede ~, the feder~ co~i~ion in-
tend~ to include the intr~t~te Ark~as rates within
its order, it ~oul~.[ave ~cn ~tion, thmug~ ~ppmpd~te
appli~tion, to remove &e aou~t by securing an expres-
sion by that commi~ion of ~e in~entio~ so to do. Com-
pare Amebean E~ess Co. v. South Dakot~ 244 U. S.
017, 627; lllin~ Cent. R. R. Co. v. Puol~ U~zht~es Con~
m~Mon, 245 ~G. S. 493, 5~-510.
in V.i~nia~ Ry. Co. v. Ur~ed ~ .... 272 ~-. S.
65S, 675, and in ~rcnce v. SL Louiz-Sar~ Fra~'~co
to :ne ~po~xnce
~y. Co., mpra, we crdlcd atteni:~oa " '- ~ '" to
the partics, ~ i:he public ~d ~) tl~]$ Cou~ cf snl~:~ort]ng
thc decree, ia ca~s of t~,is char~r, by a.n ol)inio'~-, wlxich
~a~ state fu]iy ~m rc~ons for settir, g ~idc a cmxz~-
sion's o~er. ~
~2eversed.
Op/~ion o~ ~e CouP. ~74 U. ,8.
c,~ of exceptional ~,~ip, f~ a ~a~ion eoufin~eg the con-
-. o. ~. x.~..~ ~o a bv~din~ ~,e se~ b~ck from ~he ~trcet,
. ,~rm;,a~ or ?r. fe. ir u~e of such a~orRy ~ not to be p~ed.
. .e o c.~nc~ ~q~m~ .~ot o~e~, when co~metmg new b,i!d-
. % to set
ih~r !ot~, ~y _ ay e ~uostauus2 n~lahon ~ the 9ub~ e s frelv, ,e~ th,
- e.~.. n.~ , cio ~ot d%~rive ~he Io~ n t ~ : ·
o:,~ due ~oec~
C~:::'rm~x~r (273 U'. S. ~87) to ~ judgment of {Se
. .
:':~;~..;nst the c~y councE of 2.oanoke.
.,:<eo.~,r.v. w. y. ~frch.fefd, Yr., and ~. X. w,~v~feld we,e
,~.., ,ck~o~, ~ ~.on t.'le brief for -esponden~.
............. ~aX~A~ deEve~d the op],~ou of the
Court.
~or Cae deel.o.~d pu.?.ose of estab!isbing building lines
and -ert'!~ting' and resMcti~g the ~nst~eti,m and !oca-
~ion of buildings, and fop o~b. or buboes, an ordi~anee of
~loanoke, Vbtgi:~ia, cU. vides th~ ~i!y into "busbmss"
"~sidential" districts. ~other orginanee, as amended
July !!, 1924, c~ates a ~t-bae~c or building'Eno, with reb,-
fion ~:o +he str~, ~o which .s~ bugdin~ subsequently
e~cted mu~ con~orm. The Nne must be at least as far
from the s~eet a* that occup!~ by sixty ~r cent. of the
existing hous~ in tb.e blo~, ~ae wo~ "bio&" being
GO~,!~B v. POY~ 605
~ Opi..ion of ~ ~u~
~ to ~ o~y that ~ion pn the ~e sldo & the
st~t where the new building ~.s propo~, ~u. nd~ by t%
ne~st int~g streets to the right ~d left
The city ~un~2. by a provi~ ~ed to it~tf the
ity to rake excep~ons and ~rmit the emeOon of
d~er ~ the str~q.
Petitioner ow~ ~ever~ bu;ld~g lots' within the
dent~! ~stdct upon one o~ which he h~,~ a
house. He apphed to the city council, for a ~nit t-
erect ~ brick ~tore buik[i,g upon au ~joining lot, and,
~fter invitation, qbe counei[ by resoI?ion gnvc him
~r~mion to oreo[ · b..:iek store thkty-fou- a,d two-
th~s feet b~i f~m ~hc street Rne. Jlo
~ught by mandamus to c,m~pe! the coune[! to i~ue a per-
mit to occupy the lot for his buildi,~ up to the street
a!iegJ_ng tko u~eonstitutions2P,v of the set-bm:k
?Phc judgment of the court of fi~t instance was
him, suat. ain&ng the v~lidity of the ordinance aud the
tion of %e eouneP.. ThN jud~nent was ,.gim~ed hy the
state sup~me couP, 145 Vm 554, which held ~h~.t tho
o~!inanee was v~.id and withJ~ the !eg~tive gwmt
power. Ae~ of ~he Assembly, !922, p. 4~.'
when Ce pemit ws~ ~ntr~l by.the.couuei!, and they
· · ..Mono ~ [nye!veal ~ th~s ~qu[~. The attack bede
"u~n the ~t-b~k o~/bmnee, ~nd that is assailed as eou-
tmvenhmg the due pm~ss of Ixw am~ equM protec{iou
cN~es of the Four,nth ~dment to t},e federal
. Constitutiou.
It N ~d, ~, +h~t ~e s~nda~ fumish~ [, so v,.gue
~nd un~ ~ N ~ity ~ ~ no stgndard at ~1, siqce
Ce hov~, or shay per ~nt. of th~m, in ~ny b!{x.k m,~v
stand ~t z v~eW o~ ~stan~ (rom the street, in whidt
event it c,mnot ~ de*~min~ from the ordinate whe'her
mm{) ~umqp~o ~KZ '~u*~ axi~'o~ qou ~ '~ ~oD
'L~I '~6I
~p. m' u~n~.~ a.a ~'o~ aou :p~axa sn~ ~ ~,~ aa~od
oq$ to smqpl{nq ~o uo'~aoaa uq~ ~o~ ~u~a aq~ ~oa~
-qp l-aa~un ~a-(x~ ~q ~u~o ~oi u~
OOg OCTOBER TERM., !926.
OpivJ~, o~ *~he ~u~. ~74 U.
c~se of ~ pHv~e~ that wg~ e~end~ to othem. See
C"owlcy v. Chri,.',mscn., !37 U. S. 86, ~.
cemIeU.~vg peUhoner to ~e~ his building back from the
".freer i~re cf h~s lot, dcpr}ves b~ of h.~s propert, y with-
ou~ due p"ocess of ~s,w. Upon tha~ que~[io, t the dcci~.ous
are d~v!d, ed, as faey are in res~e~ of the v:,,!}dky of
5n~ -cgv'aSens generally. E.,J.t, artec full consideration
of ~c conP. icCb~g dec!sion% we ~ntly have tw[d, Euclid
v. Zmb~('r Co., 272 7Y. S. 365, qb. at comprehensive z0n~.ng
laws m'd oral,nares, p~esc~qb~ng, e. mo~ etq? th!re.%
Y. 'L 95) :,.nd ',he cxte,..t e~ ,5,~ a-e,. t,) B(~ ',,ri o,'c~
'<:o*.x ,v}y~c~ requb'e the lo%e..vnc- to J.c~tw m,:~', gre:.~g
use of qx., s,~ace s,bove b~ :.et ,92~d ~. 'e~Cu'a* b,u whh'5 ye-
· -m (,u or,':' hi~ property. A~_', rest Yo" the5' jv~tiq,,,.tiou
:u~ s rv-:u!t of ~he great J.nems..:e and ~)ncevt-:,.tkm of pop:,-
ex,est and eempJ.e~ty o.? the problems e.? m~l,rn city
~tc':'d v. /'mS~r Co., m/y,r% ¢. ~O. ~.'?'~
aud city eouncEs, who deal with the situr, tio,~ f,'om a
~iea~ standpoint, ~,m ~ttcr 'cu~lified than the courts
de%rm[~c ~he nccessiSy, Om,¢.eter and (.?e~'eb of regu!o.-
~[en which ~hese new ,md pe~)le~ng conditions
and %e!r oonelm~ons ~hould not ~ disturbed 55; the
coups un!e::s cle~ly ~rbltr.s. ry ~d unreasonable. Yah, n
7..~oard of P~b~;~ W~l:,, a~e, p. 325 n.nd ~utho-it!es
flO..~.EB v. FOX.
Op~niou of the CouP,.
The pio.v~.rty here., iuvolved ~o..~ns pa~ of a
&sttSet wkh~. which, [~ N ~air qo p,~ume, ~rmi~ou
emet bushem bu[k~[~s ~s the e~ption aud not the rule.
The members o~ %.~ e%y eouneE. ,s :~, ba:ds for fl~e ordi-
np, n~, set forth in ~heir ~.nswer that front-yard~
rotan for J~wns ~nd t:rees, keep the dwe!llng,~ tarther frvm
~he dust, ncd~ e. nd fvme~ of ~he st,'eet, add to th~
~,[vene~ and eom%r~ o~ n res~denU:,;, d}~[r~cq, ere:itc ,.
tot home envlronmenZ, and, by securing a ~,.eate- dist,m,e
between, hours o~ opposite sides of thc stree[,
· the ~e h~d; thai the pro, ecU. on of ~ bui!dlng beyoaH
'the front 7cine of the edje~eut dwellings eut~, off !i~Nt
~[r from-[hem, .~nd, by interfer;~' w~:.h ~he ~nw or
biles. We cannot deny 2,he exes%nbc or these gro,?,~
inched, t~ey Ueem obv;ou~. Ofi~cr grouvds, or
tendep~, h~[ve been su:.r,~e::4cd. Tho h;gM~,~% o:,ur(
the ~t~te, with greater f~m~Ib?ity wilh *Lo )omo
of th~s kind, should 3e %.~;e,:r,.-M wi%h ,,n[y ;? ~p ov,
ment ]t is V'.~n~y w-ong, Welch v. ,gu,,m.y, ~vy.,ra, p..~
concluq~.o~ which, u?n the .eeori] }.,ero, a ~P;, it 1~
sib!e fo- us to re,th.
The coups, it i~ tree o,s Mreo/Jy suggestm!, o. re ;n
d~s~eemeu~ ~s to the ~o.!idi~ of :~et-b~k .rcquireme~t..
the pubJJe ~Yety, bes,!th, mcra~, or ~n,~o,':t] welfare, aug
(,&,~ot be kU~[~eed p-* e, ]egitima, te exercise (,? th,,
power. ~e vi~? of the other g-one ~s ex,.ct!~ ~o
mnt~. In the Eud;d e~qe, upon a review af the &.o;..
~on% we ~j~t~ Lbo b~$1e remqons upon which ~he dee;-
whieA mstk ~b.e opposite, view of the other
· i
· ~an~D oq;,, jo uo~.u!d0
'S '~ 'a 'OD XV~dVHD ":2 ,~.5.,uu~" ..... ~"'"~*- :'
PLANNING BOARD MEMBERS
Bennett Orlowski, Jr., Chairman
George Ritchie Latham, Jr.
Richard G. Ward
Mark S. McDonald
Kenneth L. Edwards
Telephone (516) 765-1938
PLANNING BOARD OFFICE
TOWN OF SOUTHOLD
MEMORANDUM
TO: Gerard P. Goehringer, Chairman
FROM:
SCOTr L. HARRIS
Supervisor
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
Zoning Board of Appeals
Bennett Orlowski, Jr.,
RE:
Appeals Nos. 4058 and 4062 by NYlqEX MObile
Communications/Arthur V. Junge, Inc.
Proposed Amendment to
Approved Site Plan for
Arthur V. Junge Industrial Building
N/s County Road 28,
Cutchogue, New York
SCTM # 1000-96-1-19.1
DATE: November 7, 1991
The attached letter regarding the proposed addition of a
Mobile Communications Station at the Arthur Junge Industrial
Building incorporates the Planning Board's comments on the
revised site plan.
Our site inspection revealed that the site presently does
not conform to a condition of your Board's Special Exception
(Appeal No.3835, Decision of April 27, 1989.) which was that
the vehicles stored outside must be placed behind a screened
portion of the rear yard. The trees and other vegetation that
had provided natural screening in the rear yard have since been
removed. Accordingly, the Planning Board has asked that the
revised site plan show a landscape plan for replacement of the
screening.
If you have any questions, please feel free to contact me.
cc: Victor Lessard, Principal Building Inspector
Harvey Arnoff, Town Attorney
PLANNING BOARD MEMBERS
Bennett Orlowski, Jr., Chairman
George Ritchie Latham, Jr.
Richard G. Ward
Mark S. McDonald
Kenneth L. Edwards
Telephone (516) 765-1938
PLANNING BOARD OFFICE
TOWN OF $OUTHOLD
SCOTT L. HARRIS
Supervisor
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
Fax (516) 765-1823
November 7, 1991
Marie Ongioni, Esq.
218 Front Street
Greenport, New York
11944
Re:
Proposed Amendment to
Site Plan for
Arthur V. Junge
Industrial Building
N/s County Road 48,
Cutchogue, New York
SCTM # 1000-96-1-19.1
Dear Ms. Ongioni:
The revised site plans and your cover letter dated
October 21, 1991 were reviewed by the Planning Board. Although
the plan generally meets with the requirements of the Site Plan
ordinance, please made the following changes to the site plan so
that we can proceed with your application:
The four parking spaces in front of the entrance to
the Radio Equipment building should be relocated so
that the service or maintenance vehicle has direct
access from the driveway. We suggest placing the four
spaces on the southwesterly or opposite side of the
parking lot.
The site plan should show only one site layout; the
existing construction with the proposed building
superimposed. The proposed expansion of the existing
building that was shown on the approved site plan
should not be shown on this revision.
The parking calculations should reflect the
parking spaces per square feet of existing floor area
per use.
A landscaping plan for the rear yard. The
landscaping should be sufficient to block the view to
and from the landfill operation. The placement of
evergreen species of shrubs and trees along the rear
fence is recommended.
Light plan, including location and type of fixtures,
and wattage. Lighting should be shielded so that it
remains with the property boundaries.
The seal and signature of an engineer or architect
registered within the State of New York must be placed
on the site plan. Enclosed you will find a listing of
all the information that must be placed on the site
plan.
all four
drawings
Please include a copy of the elevation drawings for
sides when you submit eight copies of the revised
to this office.
If the NYNEX company has any questions about how to show
these revisions on the site plan, I recommend that the project
engineer speak with Valerie Scopaz, Town Planner.
Sincerely,
Bennett Orlowski, Jr.
Chairman
cc: Gerard P. Goehringer, Chairman, Zoning Board of Appeals
MARIE ONGIONI
ATTORNEY AT LAW
218 FRONT STREET, GREENPORT, NEWYORK 11944
(516) 477-2048
FAX (516) 477-89 % 9
October 29, 1991
Southold Town Board
Southold Town Hall
53095 Main Road
Southold, New York
11971
Re:
Application Pending Before
Zoning Board of Appeals
NYNEX Cellular Phone Site
Dear Sir/Madam:
As you know I am the attcrney for NYNEX Mobile Communicaticns
with regard to two applicaCions pendin9 before the Zoning Board of
Appeals for the construction ef a building and monopole for
ce£1ular telephone communica~iuns.
The ZBA kas requested that the ~pplicant obtain the consent
of property owners within the "fall down" radials of the monopole
as indicated on a Ievised site plan which the Board requested.
I have submitted to ~-he ZBA the written consent of the owner
of the property on which the monopole will be located, Arthur
Junge, and the owner of the adjacent property on the east side of
the Junge property, Joseph Schoenstein. Both have consented to the
construction of the monopole but have not consented to a
restriction of the use of their property because of the
constrnct~n cf the mone~e!e.
In addition to the above, I have submitted to the ZBA the
report of the manufacturer of the monopole which clearly indicates
that the potential of this pole falling is minimal since it can
withstand winds that have not been encountered on the East End even
during our two most recent hurricanes. ~ have also submitted to
the ZBA my client's objection to the ~mpos~t~on of a consent
requirement and our contention that such a re~irement is both
ultra vires for the ZBA and an unconstitutional delegation of power
to private p~'operty ownsrs.
However, notwithstanding these issues, the Town of Southold
is an adjacent property o:,'ner to the Junge site as the Town
landfill operation abuts ~r. Junge°s property at the north side of
the site. Therefore, the ZBA has requested that the Town consent
to the construction of the monopole which request I made to this
Board, through the Town Attorney, last week. It is my
understanding that the question will be voted upon at the next
meeting on November 5, 1991. On behalf of my client, I ask that
the Board vote affirmatively on this request.
As you undoubtedly know, cellular communications are becoming
more popular with the busy buSinessperson. NYNEX is a public
utility that has received FCC approval to supply service in the NY
metropolitan and surrounding areas. As a public utility, NYNEX is
committed to serving the public's telephone needs and in fact is
required to supply such service. In NYNEX's behalf, I am engaged
in negotiations with both the Village of Greenport and Shelter
Island Town for construction of two towers in addition to the one
proposed in Cutchogue. It is expected that with these three towers
NYNEX will be able to better serve its customers and at the same
time fulfill its mandate of public service.
If there is any informatJ, on which you require prior to the
vote, please do not hesitate to contact this office. For your
information, the documents mentioned in this letter are part of
the ZBA file together with an extensive memorandum in support of
our application all of which are available for your review at Town
Hall.
Thank you for your consideration of this matter.
Very truly yours,
Zoning Board of Appeals
M~RI~'/ONGIONi
MARIE ONGIONI
ATTORNEY AT LAW
218 FRONT STREET. GREENPORT, NEW YORK 11944
(516) 477-2048
FAX (516) 477-8919
October 21, 1991
Gerard P. Goehringer, Chairperson
Zoning Board of Appeals
Town Hall
53095 Main Road
P. O. Box 1179.
Southold, New York 11971
Re: NYNEX Mobile Communications ApDlications
Dear Mr. Goehringer:
Please refer to your letter of October 15th and my initial
response of October 17th.
Pursuant to your request, enclosed herewith please find two
copies of a revised site plan showing the projected fall-down area
of the monopole.
Also enclosed herewith is a letter from the property owner,
Arthur V. Junge which consents to the processing of this
application by NYNEX and also consents to the construction of the
monopole.
Please note that the indicated fall-down area does not affect
the property to the west of the Junge site (Harris property). I
will be meeting the property owner to the east within the week and
will be contacting the Town Attorney during this same time frame.
I will, of course, keep you advised of the results of those
discussions.
Thank you for your continued cooperation in this application.
encs.
Very truly yours, ?
//? / ~
/MARIE ONGIONI
/
V
PLANNING BOARD MEMBERS
Bennett Orlowski, Jr., Chairman
George Ritchie Latham, Jr.
Richard G. Ward
Mark S. McDonald
Kenneth L. Edwards
Telephone (516) 765-1938
PLANNING BOARD OFFICE
TOWN OF SOUTHOLD
OOT 2 4 i991
Supervisor
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York I 1971
Fax (516) 765-1823
MEMORANDUM
TO:
FROM:
Gerard P. Goehringer, Chairman
Zoning Board of Appeals
Bennett Orlowski, Jr., Chairman
RE:
Appeals Nos. 4058 and 4062 by NYNEX MObile
Communications/Arthur V. Junge, Inc.
Proposed Amendment to
Approved Site Plan for
Arthur V. Junge Industrial Building
N/s County Road 28,
Cutchogue, New York
SCTM ~ 1000-96-1-19.1
The Planning Board received a revised set of amended site
plans for the above-referenced site on October 22nd. The Board
has not had the opportunity to review these revised plans in a
work session.
The plans will be reviewed at our next work session, within
a few days. The results of our review will be submitted to your
office promptly. It would be appreciated if the Zoning Board
would keep the hearing open so that our review and comments can
be made part of your record of the hearing.
cc: Victor Lessard, Principal Building Inspector
Harvey Arnoff, Town Attorney
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 11971
Fax (516) 765-1823
Telephone (516) 765-1800
October 15, 1991
Marie D. Ongioni, Esq.
218 Front Street
P.O. Box 562
Greenport, NY 11944
Re: Applications for Special Exception and Setback Variance
NYNEX Mobile Communications
Dear Mrs. Ongioni:
This letter will acknowledge receipt by our office of the
above applications requesting:
(1) a determination as to whether or not the structures
and their use as proposed meet the requirements for a Special
Exception in this Light Industrial (LI) Zone District, and a
determination requesting approval thereof;
(2) an Appeal for insufficient setbacks regarding both the
proposed monopole tower and equipment storage building.
With reference to the appeal for relief on the setback
requirements, it is:
(1) requested that the exact setbacks of both structures
be given to the property lines, as well as a radius area of the
fall-down area;
(2) suggested that you contact those property owners of
lands within the radius of the fall-down area of the proposed
tower which extends over onto their lands, and whether or not
they would be willing to allow their land to be restricted.
It is our understanding that you will be submitting
appropriate documents concerning licensing and operation of the
applicant as a public utility. As you may know, the Board
Members will determine whether or not this use is authorized at
such time as the hearing has been held, the requested
documentation received and reviewed, and the record completed.
The public hearing on this matter is expected to be held on
Thursday, October 24, 1991 at approximately 7:35 p.m.
In the interim, please file the above information within the
next couple of days for distribution to the Board Members and
the file record. Thank you.
Yours very truly,
lk
Enclosure
GERARD P.
CHAIRMAN
GOEHRINGER
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 11971
Fax (516) 765-1823
Telephone (516) 765-1800
October 15, 1991
Marie Ongioni, Esq.
218 Front Street
P.O. Box 562
Greenport, NY 11944
Re: Applications for Special Exception and Setback Variance
NYNEX Mobile Communications
Dear Mrs. Ongioni:
This letter will acknowledge receipt by our office of the
above applications requesting:
(1) a determination as to whether or not the structures
and their use as proposed meet the requirements for a Special
Exception in this Light Industrial (LI) Zone District, and a
determination requesting approval thereof;
(2) an Appeal for insufficient setbacks regarding both the
proposed monopole tower and equipment storage building.
With reference to the appeal for relief on the setback
requirements, it is:
(1) requested that the exact setbacks of both structures
be given to the property lines, as well as a radius area of the
fall-down area;
(2) suggested that you contact those property owners of
lands within the radius of the fall-down area of the proposed
tower which extends over onto their lands, and whether or not
they would be willing to allow their land to be restricted.
It is our understanding that you will be submitting
appropriate documents concerning licensing and operation of the
applicant as a public utility. As you may know, the Board
Members will determine whether or not this use is authorized at
such time as the hearing has been held, the requested
documentation received and reviewed, and the record completed.
~arie Ongioni, Esq. -2- October 15, 1991
The public hearing on this matter is expected to be held on
Thursday, October 24, 1991 at approximately 7:35 p.m.
In the interim, please file the above information within the
next couple of days for distribution to the Board Members and
the file record. Thank you.
lk
Enclosure
Yours very
ARD P. GOEHRI~GER
CHAIRMAN
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
SCOTr L. HARRIS
Supervisor
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
Fax (516) 765-1823
Telephone (516) 765-1800
October 15, 1991
Marie Ongioni, Esq.
218 Front Street
P.O. Box 562
Greenport, NY 11944
Re: Applications for Special Exception and Setback Variance
NYNEX Mobile Communications
Dear Mrs. Ongioni:
This letter will acknowledge receipt by our office of the
above applications requesting:
(1) a determination as to whether or not the structures
and their use as proposed meet the requirements for a Special
Exception in this Light Industrial (LI) Zone District, and a
determination requesting approval thereof;
(2) an Appeal for insufficient setbacks regarding both the
proposed monopole tower and equipment storage building.
With reference to the appeal for relief on the setback
requirements, it is:
(1) requested that the exact setbacks of both structures
be given to the property lines, as well as a radius area of the
fall-down area;
(2) suggested that you contact those property owners of
lands within the radius of the fall-down area of the proposed
tower which extends over onto their lands, and whether or not
they would be willing to allow their land to be restricted.
It is our understanding that you will be submitting
appropriate documents concerning licensing and operation of the
applicant as a public utility. As you may know, the Board
Members will determine whether or not this use is authorized at
such time as the hearing has been held, the requested
documentation received and reviewed, and the record completed.
' 5~arie Ongioni, Esq. -2- October 15, 1991
The public hearing on this matter is expected to be held on
Thursday, October 24, 1991 at approximately 7:35 p.m.
In the interim, please file the above information within the
next couple of days for distribution to the Board Members and
the file record. Thank you.
lk
Enclosure
Yours very truly,
CHAIRMANGERARD P. GOEHR~GER
APPEALS BOARD MEMBERS
Gerard P. Gochringer, Chairman
Charles Grigonis, .Ir.
Serge Doyen, .fr.
.fames 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 11971
Fax (516) 765-1823
Telephone (516) 765-1800
October 15, 1991
Marie D. Ongioni, Esq.
218 Front Street
P.O. Box 562
Greenport, NY 11944
Re: Applications for Special Exception and Setback Variance
NYNEX Mobile Communications
Dear Mrs. Ongioni:
This letter will acknowledge receipt by our office of the
above applications requesting:
(1) a determination as to whether or not the structures
and their use as proposed meet the requirements for a Special
Exception in this Light Industrial (LI) Zone District, and a
determination requesting approval thereof;
(2) an Appeal for insufficient setbacks regarding both the
proposed monopole tower and equipment storage building.
With reference to the appeal for relief on the setback
requirements, it is:
(1) requested that the exact setbacks of both structures
be given to the property lines, as well as a radius area of the
fall-down area;
(2) suggested that you contact those property owners of
lands within the radius of the fall-down area of the proposed
tower which extends over onto their lands, and whether or not
they would be willing to allow their land to be restricted.
It is our understanding that you will be submitting
appropriate documents concerning licensing and operation of the
applicant as a public utility. As you may know, the Board
Members will determine whether or not this use is authorized at
such time as the hearing has been held, the requested
documentation received and reviewed, and the record completed.
5larie Ongioni, Es~
-2-
Oct~ 15, 1991
The public hearing on this matter is expected to be held on
Thursday, October 24, 1991 at approximately 7:35 p.m.
In the interim, please file the above information within the
next couple of days for distribution to the Board Members and
the file record. Thank you.
Yours very truly,
lk
Enclosure
GERARD P.
CHAIRMAN
GOEHRINGER
NEW YOR~ STATE OEPARF~EN)~ OF ENVIRONMENI~&L CONSERVAFION [PROIECT aIVISION OF RE(~I. JLAi'ORy AFFAIRS
State Envlronmantll Ouallty Rtvlew
SHORT ENVIRONMENTAL ASSESSMENT FORM
For UNLISTED ACTIONS Only
PART I ProJeot Infonnetlo? (To be completed by Applican~ OF Project sponsor)
NYNEX Mobile Communications Mobile Communications
~,,~i~,.~ Cutchogue-21855 Cty. Rd. 48 ¢o~,,y Suffolk
Construct building foundation for pre-fabricated
communications equipment.
building to house
See Suffolk County Tax Map photostat attached.
? Amnuntofland&lfected: ' The total area
~.,...v .03 acres .03 acres
· ¢,., u~t~m,te~¥ ,¢i., 1 · 04 acres
parcel
Set back requirements require a variance
I
If the Ictlon la In the Col·tel Area, and you are · lille agency, complete the J
Coi·l·l Ail·lament Form before proceeding with thll Ieee.·merit
OVER
PART II Envltonmentll Alielsm~t (To be completed by Agency)
PART III Detefmlnltlon of Significance (To be completed by Aeenc¥}
INJTRUCTION$: For each ad,,erse effect identified above, determine whether it is substantial, laree, important or other'wise
significant. Each effect should be assessed in connection with its (a) settin~ (i e. urban or rural); (b) probability of occurrine;
{c) duration; (d) irreversibility; (e) ~[eo.raphic scope; and (f) ma~lnitude. If necessary, add attachments or reference supportinit
materials. Ensure that explanations contain sufficient detail to show that all relevant adverse impacts have been identified
and adequateJy addressed.
[] Check this box if you have identified one or more potentially larlle or significant adverse impacts which MAY occur. Then
proceed directly to the FULL]LONG FOR/~4 EAF and/or prepare a positive declaration.
~ Check this box if you have determined, based on the information and analysis above and any supportin~ documentation.
that the proposed action WILL NOT result in any $illniflcant adverse environmental impacts AND provide here. and on
attachments as necessary, the reasons supportn~ this determination:
PLANNING BOARD MEMBERS
Bennett Orlowski, Jr., Chairman
George Ritchie Latham, Jr.
Richard G. Ward
Mark S. McDonald
Kenneth L. Edwards
Telephone (516) 765-1938
PLANNING BOARD OFFICE
TOWN OF SOUTHOLD
Marie Ongioni, Attorney At Law
218 Front Street
Greenport, New York 11944
September 25,
Re:
SCOTF L. HARRIS
Supervisor
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
Fax (516) 765-1823
III 1991
Proposed Ame~ant Lo
Approved Site Plan for
Arthur V. Junge
Industrial Building
N/s County Road 28,
Cutchogue, New York
SCTM # 1000-96-1-19.1
Dear Ms. Ongioni:
The Planning Board has reviewed the proposed amendment to
the approved site plan for Arthur Junge's industrial building.
The amendment involves adding a monopole antenna and radio
building for mobile telephone communications.
In reviewing the application, we find that some additional
information is needed before the Planning Board can proceed with
the application. The following list is intended to help you
provide the needed information.
The application fee did not include $41.55 to cover
the radio building and surrounding pad.
The site plan that was submitted does not show the
changes that will have to be made to the approved site
plan for the remainder of the site. A copy of the
approved site plan can be reviewed in the Planning
Board office. You should be able to obtain a copy from
the engineering firm that prepared the plan, John A.
Grammas & Associates.
The proposed amendment must address one condition that
was placed on the original site by the Planning Board
in 1988. Specifically, the Planning Board waived the
installation of ten of the twenty-six parking spaces
that were required to be shown. Since the location of
some of the waived and the existing parking spaces
Be
will be affected by the proposed antenna, pad and
radio building, alternative locations for these spaces
must be shown on the plan.
The site plan should also include landscaping and
lighting plans. Please indicate anticipated parking
needs for the communications center; e.g. size and
number of service vehicles.
It appears that the application to the Zoning Board of
Appeals may have to address other issues besides
variances from the required rear and side yard
setbacks. The issues of concern to the Planning Board
are: the height of the accessory structure (the
antenna) exceeds eighteen feet; whether a Special
Exception for a public utility is needed; and whether
the proposed use is a principal or an accessory use,
given the fact that the site is occupied by an
industrial building.
It is strongly suggested that you arrange a joint
meeting to discuss this aspect of your application
with Harvey Arnoff, the Town Attorney; Victor Lessard
of the Building Department; and Linda Kowalski of the
Zoning Board of Appeals.
If this office can be of assistance in coordinating the
review of your application or in answering any questions, please
do not hesitate to contact Valerie Scopaz.
Sincerely,
Bennett Orlowski, Jr.
Chairman
VS:vs
cc: Victor Lessard, Principal Building Inspector
Gerard P. Goehringer, Chairman, Zoning Board of Appeals ~'/
Harvey Arnoff, Town Attorney
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 (iF 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
September 17, 1991
Marie Ongioni, Esq.
218 Front Street
P.O. Box 562
Greenport, NY 11944
Re: Appl. No. 4058 - Variance for NYNEX as Lessee (A. Junge)
Dear Mrs. Ongioni:
This letter will acknowledge receipt by our office of the above
application appealing the building inspector's Notice of
Disapproval concerning insufficient setbacks for the proposed
telecommunications/equipment building and separate monopole.
Also required for this project is a Special Exception for this
project. It is our understanding that NYNEX is making this
· application to locate and utilize this proposed building and
monopole for public utility telecommunications as well as a
telephone exchange business use.
As confirmed with Carmella, the Board of Appeals has rendered a
determination as early as July 25th of this year confirming that
public utility uses and structures for telecommunications may be
authorized by Special Exception in the LI or LIO Zone Districts
(exclusively).
Enclosed is a blank Special Exception application with
instructions for your use. An additional filing fee of $200.00
will be required when this application is made, for a $500.00
total.
The area variance application will be calendared simultaneously
with the special exception application (when received).
Very truly yours,
GERARD P. GOEHRINGER
CHAIRMAN
lk
Re: NYNEX ADDlication
October 21, 1991
To Whom It May Concern:
I am the owner of property adjacent to that upon which the
applicant, NYNEX Mobile Communications, wishes to build a cellular
telephone antenna (a monopole) and a communications building.
I have discussed this matter with the attorney for the
applicant. I have viewed a sketch of the radius of the fall down
area of the monopole prepared by the applicant's engineers together
with a report as to its ability to withstand wind load among other
things. It is my belief that the monopole does not present a
safety hazard.
After review of the above, I consent to the construction of
the monopole. I do not believe that my ability to utilize my
property should be infringed because of the monopole, and, I do not
consent to any such restriction on the use of my property by my
consent to construction of the monopole.
Very truly yours,
~OSEPH SCHOENSTEIN
MARIE ONGIONI
ATTORNEY AT LAW
218 FRONT STREET. GREENPORT, NEW YORK
(515) 477-2048
FAX (516) 477-8919
October 24, 1991
Gerard P. Goehringer, Chairperson
Zoning Board of Appeals
Town Hall
53095 Main Road
P. O. Box 1179
Southold, New York 11971
Re: NYNEX Mobile Communications Applications
Dear Mr. Goehringer:
Please refer to previous correspondence with regard to the
above matter and in particular to your letter of October 15th and
my letters of October 16th and 21st.
As you know, on behalf of my client I have submitted a consent
to construction of the monopole and adjacent building by the
property owner who leased the site to my client (Arthur Junge).
I am attaching hereto a consent by an adjacent property owner,
Joseph Schoenstein. You will note that both are consents to
construction of the monopole but are not consents to restriction
on the use of the land of the respective owners as a result of
their consent to construction. With regard to the question of
consent I submit the following:
The monopole does not require a variance from the height
restrictions of the zoning code as it falls within the exceptions
mentioned in Section 100-230 of the code. Your Board has in fact
not required submission of a request for a variance with regard to
the height of the monopole. The monopole itself is a permitted use
within the LI district if the Board finds our contention that it
is a telephone exchange to be valid. In the alternative, the
monopole is a permitted use by special exception as a public
utility structure in the LI district. In either case it is a
"permitted" use as that term has been construed by the courts and
not a use which requires a variance.
The Zoning Board of Appeals of Southold Town is empowered
under Section 100-272 of the code to impose such conditions and
safeguards as it deems necessary or appropriate to preserve and
protect the spirit and objectives of the code itself. However, it
is our contention that the requirement of consent of 100% of the
adjoining property owners to construction of the monopole is not
within the power of this Board nor is it, in fact, constitutional
in New York. Imposition of unanimous consent requirements under
the circumstances involved in this application is unconstitutional.
In addition, it is our contention that in asking the adjoining
property owners to consent to construction of the monopole the
Board cannot additionally require that those property owners
consent to a restriction on the use of their property by such
consent.
The courts have found that conditions must relate reasonably
to the proper objectives of zoning. Reed v. Board of Standards &
Appeals, 255 N.Y. 126 (1931). The proper objectives of the zoning
code in Southold Town are stated in Section 100-10 of the Code none
of which are reasonably related to the requirement of consent and
restriction asked by this Board for this application. See also:
Pluto's Retreat, Inc. v. Granito, et al, 437 N.Y.S. 2d 437 (2d
Dept. 1981) where the court stated that a Board of Appeals upon
issuance of a special use permit may impose any reasonable
conditions which are in conformity with the purpose and standards
of the ordinance. Unanimous consent by adjacent property owners
coupled %~ith restriction on the use of their land ar~ not
reasonable conditions. The Board is not authorized to impose
conditions unrelated to the purpose of zoning or which are neither
expressly or impliedly authorized by the zoning regulations. The
use to which applicant seeks to put this portion of the parcel is
a permitted use in the district and the Board has neither express
nor implied power to set restrictions on the permitted use which
are unreasonable. In fact, by requiring that the adjacent property
owners consent to restriction of the use of their property is to
confiscate that property and that is beyond the power of a Zoning
Board of Appeals. Rand v. New York, 3 Misc. 2d 769, 155 N.Y.S. 2d
753 (1956). In addition, applicant has submitted a report by the
engineer's who will construct this moncpole that in 20 years of
experience they have never known of a pole to collapse as a result
of wind load. That report graphically illustrates the safety level
of this structure.
The topic of consent of adjacent property owners has been
controversial for many years. However, in New York it has been
found to be unconstitutional as an impermissible delegation of
zoning power to private landowners. Matter of Concordia Coll.
Inst. v. Miller, 301 N.Y. 189 The items to be considered are
whether the requirements are in the code (which they are not),
whether the Board can impose unrgasonable conditions (unanimous
consent coupled with restriction of use are not reasonable), and
finally whether the use requested will constitute a nuisance (a
permitted use cannot possibly be a nuisance). The court in Town
of Gardiner v. Stanley Orchards, Inc., 105 Misc. 2d 460, 432 N.Y.S.
2d 335, stated that after extensive research it could not find a
New York case which upheld the constitutionality of a unanimous
consent requirement. In that case the requirement was in the
zoning law itself while here it is being imposed without authority
which applicant contends is an ultra vires act by this Board.
I respectfully submit this letter for the Boards consideration
and urge the Board to withdraw the request for consent of adjoining
property owners coupled with a restriction of use to the consenting
party.
Ver~truly yours,
FCC Form 401
Exhibit No. 2
Page i of 1
New York SMSA Limited Partnership Is a limited partnership formed under the
New York State Partnership Act in which New York Cellular Geographic Service
Area, Inc, ("NYCGSA") is both a general (40%) and a limited (14%) partner,
Bell Atlantic Mobile Systems, Inc. is a 36~ limited partner. Empire Cellular
is a 10% limited partner. NYCGSA ts a wholly-owned subsidiary of NYNEX Mobile
Communications Company ("NMCC"), NYCGSA's principal place of business is 2000
Corporate Drive, Orangeburg, New York 10962. NMCC is a wholly-owned
subsidiary of NYNEX Corporation, llll-lll3 Nestchester Avenue, White Plains,
New York 10604. NMCC's principal place of business is 2000 Corporate Drive,
Orangeburg, New York 10962. A schematic diagram of the corporate structure is
included as Attachment 1 to this Exhibit.
NyHEX MOBILE COMMUNICATIONS COMPANY_
REAL ESTATE DEPARTMENT
i=,&CSiMiLE'TRANSMITTAL .COVER SHEET_
Date
Number of Pages
I~- !s' t~/ - ,nc,ad,.° ~h,s Page
TO:
Name
Telephone Number_
' Location_s.
Equipment Telephone Number ~,~-'IL~'
FROM:
Name
Telephone
Location_
Oranoeburq
_Floor__2
Special Instructions fj.~ '. .,(j~ ,..{j~ ~,%6~ ~P
Post-ItT" brand fax transmittal memo 7671 I # of pages
Co. ' ~ Co.
BOARD OF APPEALS:
G~ard P. Goehringer, Ch.
Charles Grigonis, Jr.
Serge Doyen, Jr.
James Dinizio, Jr.
Robert A. Villa
TO: Planning Board
OFFICE OF THE BOARD
OF APPEALS
TOWN OF SOUTHOLD
December 5, 1991
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
The following is certified to be a Resolution of the Board of
Appeals duly adopted at its November 21, 1991 Meeting:
BE IT RESOLVED, that the application for variances
concerning the northerly rear yard setback and the westerly side
yard setback in the proposed establishment of a public utility
for the construction of a cellular telephone communications
tower and accessory equipment-storage building as applied under
Appl. No. 4058 in the Matter of NYNEX/ARTHUR V. JUNGE, INC., BE
AND HEREBY IS APPROVED, SUBJECT TO THE FOLLOWING CONDITIONS,
also applicable to the Special Exception simultaneously rendered
herewith:
1. No excessive (disturbing) noise levels;
2. No expansion or additional construction (with the
exception of emergency, fire or police necessities which serve
the safety, health, welfare, comfort, convenience and order to
the town), unless further application and approvals are
obtained, and for which engineering certifications will be
required concerning increased loads, winds pressures and other
safety considerations for such expansion;
3. No microwave dishes, as agreed by the applicants
of which are proposed during the consideration of this
application);
(none
4. No disturbing emissions of electrical discharges,
light, vibration or noise, or harmful distribution levels of
radiation, as agreed.
5. The setbacks
and shown on the plan dated October 18,
92-8012) prepared by Richard E. Tangel,
property line.
shall be not less than that applied for
1991 (Drawing No.
P.E., from the northerly
This resolution was duly adopted.
CERTIFIED BY:
~i~da F. Kowalski, Confidential Clerk
of the Southold Town Board of Appeals
SCOTT L. HARRIS
SUPERVISOR
FAX (516} 765 - 1823
TELEPHONE (516) 765 - 1800
BOARD OF APPEALS
Gerard P. Goehringer, Ch.
Charles Grigonis, Jr.
Serge Doyen, Jr.
James Dinizio, Jr.
Robert A. Villa
_~0: Planning Board
OFFICE OF THE BOARD OF' APPEALS
TOWN OF SOUTHOLD
December 5 ~ 1991
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
The following is certified to be a Resolution of the Board of
Appeals duly adopted at its November 21, 1991 Meeting:
BE IT RESOLVED, that the application for a Special
Exception for the establishment of a public utility for the
construction of a cellular telephone communications tower and
accessory equipment-storage building as applied under Appl. No.
4062 in the Matter of NYNEX/ARTHUR V. JUNGE, INC., BE AND HEREBY
IS APPROVED, SUBJECT TO THE FOLLOWING CONDITIONS:
1. No excessive (disturbing) noise levels;
2. No expansion or additional construction (with the
exception of emergency, fire or police necessities which serve
the safety, health, welfare, comfort, convenience and order to
the town), unless further application and approvals are
obtained, and for which engineering certifications will be
required concerning increased loads, winds pressures and other
safety considerations for such expansion;
3. No microwave dishes, as agreed by the applicants
of which are proposed during the consideration of this
application);
(none
4. No disturbing emissions of electrical discharges,
light, vibration or noise, or harmful distribution levels of
radiation, as agreed.
This resolution was duly adopted.
CERTIFIED BY:
da F. Kowalski, Confidential Clerk
of the Southold Town Board of Appeals
Southold Town Board of Appeals
'~'l~,'.;'~c~'~ ROAD 25 P.O. BOX 1179 SOUTHOLD, L.I., N.Y. 11971
~:~ .~,~ MAIN ROAD- STATE
~~ T~LE~ONE (516) 7~,80.
FAX No. (516) 765-1823
APPEALS BOARD
MEMBERS I'
GERARD P. GOEHRINGER, CHAIRMAN
CHARLES GRIGONIS, JR.
SERGE DOYEN, JR.
JOSEPH H. SAWICKI
JAMES DINIZIO, JR.
ACTION OF THE BOARD OF APPEALS
Appl. No<~~
Matter of the Application of ARTHUR V. JUNGE, INC. -
Amendment to Special Exception Granted under Appl. No. 3705
under Article VIII, Section 100-80B of the prior Zoning
Regulations for this previously zoned C-Light Industrial Zone
District, now re-zoned to Light Industrial, Article XIV, Section
100-141, to include establishment of car repairs with outside
storage and future occupancy of vacant building area at easterly
side of building (said use to be a permitted use in this Zone
District). Location of Property: 22355 C.R. 48, Cutchogue,
NY; County Tax Map District 1000, Section 96, Block 1, Lot 19,
containing 45,589+- sq. ft. in lot area.
At_a_Meeting of the Zoning Board of Appeals held on
r-'~pril 27, 198-9~ the following action was taken:
WHEREAS, a public hearing was held on April 13, 1989, under
File No. 3835, filed March 10, 1989; and
WHEREAS, at said hearing all those who desired to be heard
were heard and their testimony recorded; and
WHEREAS, the Board has carefully considered all testimony
and documentation submitted concerning this application; and
WHEREAS, the Board Members have personally viewed and are
familiar with the premises in question, its present zoning, and
the surrounding areas; and
WHEREAS, the Board made the following findings of fact:
1. By this application, applicant requests an Amendment to
Special Exception Application No. 3705 to include establishment
of car repairs with outside storage and future occupancy of
vacant building (to be occupied with a use permitted in this
Light Industrial Zone District).
Southold Town Board of Appeals -2- April 27, 1989 Special Meeting
(Appl. No. 3835 - ARTHUR V. JUNGE, INC. decision, continued:)
2. The property in question:
(a) contains a total lot area of 45,589 square feet
and lot width {frontage} along the north side of County Road 48
of 168.17 feet, in the Hamlet of Cutchogue;
(b) is identified on the Suffolk County Tax Maps as
District 1000, Section 96, Block 1, 19;
(c) is located in the Light Industrial Zone District,
as re-designated January 10, 1989 under the new Master Plan
revisions;
(d) is bound on the northerly side by the Southold
Town Landfill, on the west by a single-family dwelling now or
formerly of J. Harris Estate, and on the east by vacant land now
or formerly of Gray, all of which is also located in the Light
Industrial Zone District.
3. For the record, it is also noted that:
(a) an Use Variance was denied without prejudice
under Appeal No. 3635 on August 20, 1987, when the premises was
zoned "A" Residential and Agricultural;
(b) a Change of Zone was granted by the Southold Town
Board on December 15, 1987, re-zoning the premises'from "A"
Residential and Agricultural to "C-Light Industrial";
(c) a Special Exception for the construction and
occupancy of a 7,750 sq. ft. building was granted by the Board
of Appeals on March 3, 1988 under Appl. No. 3705;
(d) the occupants of the building on or about
January 1, 1989, are believed to be for the following uses: (1)
contractor's business and shop; (2) vehicle-repair business
and shop; (3) storage, parking and similar uses accessory and
incidental to the established principal uses.
4. By this application, the property owner requests
approval, as an amendment to the 1988 Special Exception
approval:
(a) for the establishment of the vehicle repair
business and shop occupying approximately one-third of the floor
area of the existing building (at the center thereof) and for
Southold Town Board of Appeals -3- April 27, 1989 Special Meeting
(Appl. No. 3835 - ARTHUR V. JUNGE, INC. decision, continued:)
approval of outside storage of licensed vehicles, parked while
under repair, with proper screening. The area of the proposed
vehicle parking (vehicles for repairs) is that area directly in
the rear yard, behind the building, with fencing and/or other
screening around the periphery of the rear yard, including that
area close to the northerly and easterly property lines, and
squared off to the northeasterly corner of the rear of the
building (if needed for reference, see subject storage area
depicted in red on Drawing No. P-la dated March 10, 1987,
submitted for consideration);
(b) for occupancy of Bay %3 at the easterly third
section of the building for a Special Exception use only as
permitted under the Light Industrial Zone District regulations.
It should be noted, however, that the Light Industrial (LI) Zone
District provides for certain uses already provided in other
zone districts listed on the previous pages of the Zoning Code
{such as the "LIO" Light-Industrial Office/Park, Section
100-131B{1-11}, "B" General Business, Section 100-101A{3-5} and
B{5,7,10}, which includes warehouses, building material storage
and sales, building contractors yards, cold storage plants,
etc.).
5. Additionally, it is noted that Article XIV, Section
100-141, Subsection B(1) permits by Special Exception and site
plan approval any special exception use set forth in and as
regulated by Section 100-131B(1-11) of the Light Industrial
Park/Planned Office Park Zone District. Subsection 100-131B{2}
thereof provides by special exception and site plan approval:
...Light industrial uses involving the fabrication,
reshaping, reworking, assembly or combining of products
from previously prepared materials and...Such uses may
include industrial operations such as electronic, machine
parts and small component assembly...
It is the opinion of the Board that based on the precedents
concerning permitted light-industrial uses under the previous
zoning code, and the fact that the vehicle repairs will be minor
or include installation of (small) electronic or mechanic parts
into the vehicles, that the use is similar to other permitted
light industrial uses for the purposes of this Amendment and is
of the same or similar nature of a light-industrial use.
Southold Town Board of Appeals -4- April 27, 1989 Special Meeting
(Appl. No. 3835 - ARTHUR V. JUNGE, INC. decision, continued:)
6. In considering this application, the Board also has:
(a) considered Section i00-262 ~(General Standards) and Section
263 (Consideration) of the zoning code; (b) determined the
use will not prevent the orderly and reasonable use of adjacent
properties or of properties in adjacent-use districts; (c)
determined the safety, health, welfare, comfort, convenience,
and order of the town will not be adversely affected by the
proposed use and its location; (d) determined that the use is
in harmony with and will promote the general purposes and intent
of zoning since this is a use which was permitted by special
exception application (with the exception of the formality of
requiring a written amendment to the Special Exception in effect
at the time of the filing of this application)
plan); (e) the applicant has had numerous applications before
the Boards, and due to the timeliness during the procedures was
not able to have the same finalized.
Accordingly, on motion by Mr. Dinizio, seconded by
Mr. Grigonis, it was
RESOLVED, to GRANT an Amendment to the Special Exception as
requested (under Application No. 3835) in the Matter of ARTHUR
~V. JUNGE, INC., SUBJECT TO THE FOLLOWING CONDITIONS:
1. Vehicles stored outside of the building must be
licensed, in taxt, and located only in this screening-in
rearyard area;
2. Any extended storage area outside of the building will
require re-application for re-consideration by the Board of
Appeals;
3. The types of screening for the enclosure of the
proposed outside vehicle storage area shall be designated at the
discretion of the Planning Board under its site-plan regulations.
Vote of the Board: Ayes: Messrs. Goehringer, Grigonis,
Sawicki and Dinizio. (Absent, as agreed for this Special
Meeting, was: Member Doyen of Fishers Island.) This
resolution was duly adopted.
lk
SOUTHOLD TOWN BOARD OF APPEALS
Southold Town Board of Appeals
MAIN ROAD- ~TATE ROAD 25 SOUTHOLD, L.I., N.Y. 119'71
TELEPHONE (516) 765-1809
ACTION OF THE ZONING BOARD OF APPEALS
Appl. No. 3705-SE
Application Dated December ]6,
TO: Mr. Arthur V. Junge
6880 Nassau Point Road
Cutchogue, NY 11935
1987
[Appellant (s) ]
At a Meeting of
the above
on your
the Zoning Board of Appeals held on March 3, ]988,
appeal was considered, and the action indicated below was taken
[ ] 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 VIII , Section 100-80(B)
[ ] Request for Variance to the Zoning Ordinance
Article , Section
[ ] Request for
Application of ARTHUR V. JUNGE for a Special Exception to the Zoning
Ordinance, Article VIII, Section lO0-80(B) for permission to establish
electrical shop use and construct two buildings located as shown on Site
Plan dated March 10, 1987, prepared by John A. Grammas & Assoc. Zone
District: C-Light Industrial. Location of Property: North Side of
C.R. 48, Cutchogue, NY; County Tax Map District 1000, Section 96,
Block 1, Lot 19, containing 45,589~ sq. ft. in lot area.
WHEREAS, a public hearing was held and concluded on January
1988 in the Matter of the Application of ARTHUR V. JUNGE under
Appl. No. 3705-SE~ and
14,
WHEREAS, at said hearing all those who desired to be heard
were heard and their testimony recorded; and
WHEREAS, the Board has carefully considered all testimony
and documentation submitted concerning this application, and
WHEREAS, the Board Members have personally viewed and are
familiar with the premises in question, its present ~oning, and
the surrounding areas; and
WHEREAS, the Board made the following findings of fact:
1. The premises in question is a described parcel of land
containing a lot area of .975 of an acre, or 45,589 sq. ft. with
frontage (lot width) of 168.17 feet along the north side of C.R. 48,
in the Hamlet of Cutchogue, is vacant, and is more particularly
shown on the Suffolk County Tax Maps as District 1000, Section 96,
Block l, Lot 19.
2. The subject premises is located in the "C" Light Industrial
Zoning District as approved by the Town Board at a Regular Meeting
held December 15, 1987, and is immediately adjacent to the Southold
Town Disposal Site at the north side. The premises immediately
adjoining this property along the west side is a parcel of 1.2±
acres improved with a single-family dwelling and along the east
side is a vacant parcel of 39,524 sq. ft., which has also received
a change of zone from "A" to "C" (Parcel 1000-96-1-20).
(CONTINUED ON PAGE TWO)
DATED: March 3, 1988.
Form ZB4 (rev. 12/81)
CHAIRMAN, SOUTHOLD TOWN ZONING BOARD
OF APPEALS
Page 2 Appl. No. 3705-SE
Matter of ARTHUR V. JUNGE
Decision Rendered March 3,
1988
3. Town assessment records indicate that the applicant
acquired the premises from Watson Gray on April 6, 1987 (see
Deeds at Liber 10321 cp 162).
4. By this application, appellant requests a Special Exception
under Article VIII, Section lO0-80(B) for permission to establish
electrical shop use as more particularly shown on Amended Plan
prepared by John A. Grammas & Assoc., Drawing No. P-1 presently
under review by the Town Planning Board (and filed February 10,
1988).
5. It is the opinion of this Board that the 7,750 sq. ft.
building together with all parking, and other site-plan elements
are consistent with the zoning requirements for this zoning
district.
6. In considering this application, the Board has also
determined: (a) the use proposed will not prevent the orderly
and reasonable use of adjacent properties or of properties in
adjacent use districts; (b) the uses will not prevent the
orderly and reasonable use of permitted or legally established
uses in adjacent use districts;I (c) the safety, health, welfare,
comfort, convenience and order of the Town will not be adversely
affected by the proposed use and its location; (d) the use will
be in harmony with and promote the general purposes and intent
of the zonin~ ordinance. The Board has also considered items
[a] through [1] of Article XII, Section 100-121(C)[2] of the
Zoning Code.
Accordingly, on motion by Mr. Goehringer, seconded by
Mr. Grigonis, it was
RESOLVED, to GRANT a Special Exception in the Matter of
the Application of ARTHUR V. JUNGE under Appl. No. 3705 for
the proposed electrical shop use in the proposed 7,750 sq. ft.
building as shown on Site Plan prepared by John A. Grammas &
Assoc. (dated March 10, 1987'), SUBJECT TO THE FOLLOWING
CONDITIONS:
1. There be no outside storage;
2. All vehicles left on-site must be registered and
licensed, for parking only [No storage of vehicles shall be
permitted].
Vote of the Board: Ayes: Messrs. Goehringer,,.Grigonis,
Douglass and Doyen. (Absent was: Member Sawicki.) This
resolution was duly adopted.
lk
GERARD P. GOEHR~NGER, C.~;AIRMAN
March 14, 1988
Southoffd own oard of'Appeals
MAIN I~OAD- STATE I~OAD 25 SOUTHOLD. L.I., N.Y. 11971
TELEPHONE (516) 765-1809
ACTION OF THE ZONING BOARD OF APPEALS
Appeal No. 3635
Application Dated May ]9, ]987
TO~
~lr. Ar'cnur V. OUrlge
6880 Nassau Point Road
Cutchogue, NY 11935
At a Meeting of the Zoning Board of Appeals held on August 20, ]987,
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 III, Section ]00-30(A)
[ ] Request for
Application of ARTHUR V. JUNGE for a Variance to the Zoning Ordi-
nance, Article III, Section lO0-30(A) for permission to establish elec-
'trical shop use in this UA-40" Residential and Agricultural Zoning
District. Location of Property: North'Side of C.R. 48, Cutchogue,
NY; County Tax Map District 1000, Section 96, Block 1, Lot 19, con-
taining 45,589± sq. ft. in lot area.
WHEREAS, a public hearing was held and concluded on July 16,
1987 in the Matter of the Application of ARTHUR V. JUNGE, under
Application No. 3635; and
WHEREAS, at said hearing all those who desired to be heard
were heard and their testimony recorded; and
WHEREAS, the Board has carefully considered all testimony
and documentation submitted concerning this application; and
WHEREAS, the Board Members have personally viewed and are
familiar with the premises in question, its present zoning,
and the surrounding areas; and
WHEREAS, the Board made the following findings of fact:
1. The premises in question is a described parcel of land
containin§ a.lot area of .975 of an acre, or 45,589 sq. ft.,
with frontage (lot width) of 168.17 feet along the north side
of C.R. 48, Hamlet of Cutchogue, is vacant, and is more parti-
cularly shown on the Suffolk County Tax Maps as District 1000,
Section 96', Block l, Lot 19.
2. The subject premises is located in the "A-40" Residential
and Agricultural Zoning District and is immediately adjacent to
the Town of Southold Disposal Site at the north si~e. The premises
immediately adjoining this property along the west' side is a parcel
of 1.2± acres improved with a single-family dwelling and along the
east.side is a vacant parcel of 39,524 sq, ft. (also located in
this Residential and Agricultural Zoning District).
(CONTINUED ON PAGE TWO)
DATED: August 20, 1987. CHAIRMAN, SOUTHOLD TOWN ZONING BOARD
OF APPEALS
Form ZB4 (rev. ~2/81)
Page 2 - Appl. No. 3635
Matter of ARTHUR V. JUNGE
Decision Rendered August 20,
1987
3. Town assessment records as of the date of this decision
show the owner of the subject parcel to be John S. Wickham,
although it is our understanding that there haS been a recent
conveyance to Arthur V. Junge or Arthur!V. Junge Inc. (A copy
of an unexecuted deed from Timothy Scott Gray to Arthur V.
Junge dated April.6, 1987 has been furnished for the file.)
4. By this application, appellant requests a Variance
from the Zoning Ordinance to permit the construction of an
44Q0 sq. ft. building as shown on Site Plan prepared March 10,
1987 by John A. Grammas and Associates and referred to as
Building "A," with dimensions of llO ft. wide by 40 ft. dee~
and shown to be see back 60 set from the front property line.
Also shown on the S'ite Plan is a future Building "B" to the
rear (north) of Building "A". The occupancy proposed by the
appellant is a contractor's business: and_shop.
5. No evidence has been introduced as required by
law.that:
(a the land in question cannot yield a reasonable
return if used only for the purpose of the zone in which it
is located;
(b) that the plight of the owner is due to unique
circumstances and not to the general conditions of the neigh-
borhood which may reflect the unreasonableness of the zoning
ordinance itself;
(c) that the use to be authorized will not alter the
essential character of the neighborhood;
(d) there is dollars and cents proof to substantiate
the unnecessary hardship claimed.
This Board is aware that the proposed new Master Plan
Maps depict this property for LIO, Light Industry, which would
permit this use by Special Exception approval, and does
s~mpathize with petitioner's plight; however., the Board find~
that the criteria set by the Courts has not been sufficiently
met and therefore lacks authority to grant the relief as
requested.
Accordingly, on motion by Mr. Douglass, seconded by
Mr. Grigonis, it was
RESOLVED, that the Vari-ance.~requested under Appeal
No. 3635 in the Matter of the Application of ARTHUR V. JUNGE
BE AND HEREBY 'IS DENIED WITHOUT'PREJUDICE'
Vote of the Board: Ayes:
Grigonis,'Douglass and Sawicki.
adopted.
Messrs. Goehringer, Doyen,
This resolution was duly
lk
~ERARD P. GOEHRINGER,
September 3, 1987
SCOTT L. HARRIS
SUPERVISOR
FAX (516) 765 - 1823
TELEPHONE (516) 765 - 1800
BOARD OF APPEALS:
G6card P. Goehringer, Ch.
Charles Grigonis, Jr.
Serge Doyen, Jr.
James Dinizio, Jr.
Robert A. Villa
TO: Planning Board
OFFICE OF THE BOARD OF APPEALS
TOWN OF SOUTHOLD
December 5, 1991
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
The following is certified to be a Resolution of the Board of
Appeals duly adopted at its November 21, 1991 Meeting:
BE IT RESOLVED, that the application for variances
concerning the northerly rear yard setback and the westerly side
yard setback in the proposed establishment of a public utility
for the construction of a cellular telephone communications
tower and accessory equipment-storage building as applied under
Appl. No. 4058 in the Matter of NYNEX/ARTHUR V. JUNGE, INC., BE
AND HEREBY IS APPROVED, SUBJECT TO THE FOLLOWING CONDITIONS,
also applicable to the Special Exception simultaneously rendered
herewith:
1. No excessive (disturbing) noise levels;
2. No expansion or additional construction (with the
exception of emergency, fire or police necessities which serve
the safety, health, welfare, comfort, convenience and order to
the town), unless further application and approvals are
obtained, and for which engineering certifications will be
required concerning increased loads, winds pressures and other
safety considerations for such expansion;
3. No microwave dishes, as agreed by the applicants
of which are proposed during the consideration of this
application);
(none
4. No disturbing emissions of electrical discharges,
light, vibration or noise, or harmful distribution levels of
radiation, as agreed.
5. The setbacks shall be not less than that applied for
and shown on the plan dated October 18, 1991 (Drawing No.
92-8012) prepared by Richard E. Tangel, P.E., from the northerly
property line.
This resolution was duly adopted.
CERTIFIED BY:
'~ F~. Kofl s ~i~t'i a 1 Clerk
of the $outhold Town Board of Appeals
SCOTT L. HARRIS
SUPERVISOR
FAX (516) 765 - 1823
TELEPHONE (516) 765 - 1800
BOARD OF APPEALS
Gerard P. Goehringer, Ch.
Charles Grigonis, Jr.
Serge Doyen, Jr.
James Dinizio, Jr.
Robert A. Villa
TO: Planning Board
OFFICE OF THE BOARD OF APPEALS
TOWN OF SOUTHOLD
December 5, 1991
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
The following is certified to be a Resolution of the Board of
Appeals duly adopted at its November 21, 1991 Meeting:
BE IT RESOLVED, that the application for a Special
Exception for the establishment of a public utility for the
construction of a cellular telephone communications tower and
accessory equipment-storage building as applied under Appl. No.
4062 in the Matter of NYNEX/ARTHUR V. JUNGE, INC., BE AND HEREBY
IS APPROVED, SUBJECT TO THE FOLLOWING CONDITIONS:
1. No excessive (disturbing) noise levels;
2. No expansion or additional construction (with the
exception of emergency, fire or police necessities which serve
the safety, health, welfare, comfort, convenience and order to
the town), unless further application and approvals are
obtained, and for which engineering certifications will be
required concerning increased loads, winds pressures and other
safety considerations for such expansion;
3. No microwave dishes, as agreed by the applicants
of which are proposed during the consideration of this
application);
(none
4. No disturbing emissions of electrical discharges,
light, vibration or noise, or harmful distribution levels of
£adiation, as agreed.
This resolution was duly adopted.
CERTIFIED BY:
C/Ldlnda F. Kowalski, Confidential Clerk
of the Southold Town Board of Appeals
Page 5 - Appl. No. W58
Matter of NYNEX Mob~±e Communications/Junge
Decision Rendered November 21, 1991
application);
4. No disturbing emissions of electrical discharges,
light, vibration or noise, or harmful distribution levels of
radiation, as agreed.
5. The setbacks shall be not less than that applied for
and shown on the plan dated October 18, 1991 (Drawing No.
92-8012) prepared by Richard E. Tangel, P.E., from the northerly
property line.
VOTE OF THE BOARD: AYES: MESSRS. GOEHRINGER, GRIGONIS,
DOYEN AND VILLA. (MEMBER DINIZIO ABSTAINED FROM DISCUSSIONS AND
FROM VOTE). This resolution was duly adopted.
lk
GERARD P. GOEHRINGER, CHAIRMAN
DEPARTMENT OF PLANNING
COUNTY OF SUFFOLK
PATRICK G, HAUt'IN
SUFFOLK COUNTY EXECUTIVE
ARTHUR H. KUNZ
DIRECTOR OF PLANNING
December 17, 1991
Town of Southold
Zoning Board of Appeals
Pursuant to the requirements of Sections A 14-14 to 23 of the Suffolk County
Administrative Code, the follovin$ application(s) which have been referred to
the Suffolk County Plannln$ Commission are considered to be a matter for local
determination, i decision of local determination should not be construed as
either an approval or a disapproval.
Applicant(e)
Municipal File Number(s)
NYNEX Mobile Communications
NYNEX Mobile Communications
4058
4062SE
Very truly yours,
Arthur H. Kurtz
Director of Planning
GGN:mb
S/s Gerald G. Newman
Chief Planner
PLANNING BOARD MEMBERS
Bennett Orlowski, Jr., Chairman
George Ritchie Latham, Jr.
Richard G. Ward
Mark S. McDonald
Kenneth L. Edwards
Telephone (516) 765-1938
~~: ~ i ,,-,' 53095 Main
· ,.,z~:2:~7~~' Town Hall,
Road
P.O. Box 1179
Southold, New York 11971
PLANNING BOARD OFFICE
TOWN OF SOUTHOLD Fax (516) 765-1823
December 16, 1991
RE:
Lead Agency Coordination Request for
NYNEX Mobile Communications & Arthur V.
N/s County Route 48
Cutchogue, New York
SCTM #1000-96-1-19
Junge, Inc.
Dear Reviewer:
The purpose of this letter is to supplement our last letter
to you of December 10, 1991, pursuant to Article 8 of the
Environmental Conservation Law and 6 NYCRR Part 617. That
letter contained the resolution of conditional approval for the
Special Exception by the Zoning Board of Appeals. Since that
time, the Zoning Board's final decisions which include its
findings and determinations on the Special Exception and the
variance applications, both, have been completed. A copy of
each is enclosed to assist you in your coordinated review.
Project Name:
NYNEX Mobile Communications & Arthur Junge
Inc.
N/s County Route 48
Cutchogue, New York
Requested Action:
To construct a monopole tower one hundred
(100) feet in height for the purpose of
installing a cellular communications
transmitter and to construct an accessory
equipment storage building for the tower on
a Light Industrial site with an existing
industrial building.
SEQRA Classification: ( ) Type I
(x) Unlisted
Contact Person:
Valerie Scopaz
(516)-765-1938
cc:
Building Department *
Southold Town Board of Zoning Appeals /
Suffolk County Dept. of Health Services *
Department of Environmental Conservation - Albany
APPEALS BOARD MEMBERS
Gerard P. Goehringer, Chairman
Charles Grigonis, Jr.
Serge Doyen, Jr.
James D[nizi%~r.
Robert a. Vl/la
Te eph.one (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
Pursuant to Article XlII of the Suffolk County Charter, the
Board of Appeals of the ?own of Southold, New York, hereby refers
the following to the Suffolk County Planning Commission:
X Variance from the Zoning Code, Article XIV , Section 100-142
Variance from Determination of Southdld Town Building Inspector
__ Special Exception, Article , Section
Special Permit
Appeal No.: 4058 Applicant:
Location of Affected Land:
County Tax Map
Within 500
Town
NYNEX,'Moba':.le .~mmunications
21855 County Road 48, Cutchogue
Item No.: 1000- 96-1-19.1
feet of:
or Village Boundary Line
Body of Water (Bay, Sound or Estuary)
State or County Road, Parkway, Highway,
Boundary of Existing or Proposed County,
Boundary of Existing or Proposed County,
Other Recreation Area
Thruway
State or
State or
Federally Owned Land
Federal Pa'rk or
or
Existing or Proposed Right-of Way of Any Stream
Owned by the County or for Which The County Has
Lines,
Within One Mile of a Nuclear Power Plant
_ Within One Mile of An Airport.
COMMENTS: Applicant is
tower and equipment building.
or Drainage
Established
Channel
Channel
requesting permission to construct monopole radio
Insufficient side and rearyard setbacks
Copies of Town file and related documents enclosed for your review.
Dated: Dec. ll, 1991
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
December 12, 1991
Marie Ongioni, Esq.
218 Front Street
P.O. Box 562
Greenport, NY 11944
Re: Appl. No. 40~8 - NYNEX Mobile Communications (Setbacks)
Dear Mrs. Ongioni:
Attached please find a copy of the board's findings and
determination in the above matter.
Please be sure to return to the Building Inspector (and other
agencies which may have jurisdiction for issuance of other
approvals of this project) before commencing construction
activities.
Copies of this determination have this date also been furnished
to the Building Department and Planning Board offices for their
files and update. A certified copy of the resolution was
furnished several days earlier, as you know, to the Planning
Board in order that they would be in a position to calendar the
matter for processing at the Planning Board Meeting of Monday,
December 9, 1991. (The attached findings and determination
include this resolution, of course, with the same conditions of
approval.)
Very truly yours,
Linda Kowalski
Enclosure
Copies of Decision to:
Building Department
Southold Town Planning Board
Suffolk County Department of Planning
SCOTT L. HARRIS
SUPERVISOR
FAX (516) 765 - 1823
TELEPHONE (516) 765 - 1800
BOARD OF APPEALS:
Gerard P. Goehringer
Chairman
765-1809
OFFICE OF THE [~0ARD OF APPEALS
TOWN OF SOUTHOLD
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
ACTION OF THE BOARD OF APPEALS
Appeal No. 4058:
NYNEX MOBILE COMMUNICATIONS/ARTHUR V. JUNGE, INC.
Variance to the Zoning Ordinance, Article XIV, Section 100-142
for permission to construct monopole radio tower and accessory
equipment-storage building with insufficient side and rear yard
setbacks. Zone District: Light Industrial (LI). Location of
Property: 21855 County Road 48, Cutchogue, NY; County Tax Map
Parcel No. 1000-96-1-19.1.
WHEREAS, after due notice, a public hearing was held on
October 24, 1991, and at said hearing all those who desired to
be heard were heard and their testimony recorded; and
WHEREAS, the Board has carefully considered all testimony
and documentation submitted concerning this application; and
WHEREAS, the Board Members have personally viewed and are
familiar with the premises in question, its present zoning, and
the surrounding areas; and
WHEREAS, the Board made the following findings of fact:
1. The premises in question is located in the Light
Industrial (LI) Zone District in the Hamlet of Cutchogue, Town
of Southold, and is more particularly identified as County Tax
Map District 1000, Section 96, Block 1, Lot 19.1.
2. The subject premises consists of a total area of 1.04 .'
acres (or 45,598 sq. ft.) with a frontage of 168 feet along the'
north side of County Route 48 and a lot depth of 252+- feet.
This parcel is improved with an existing building and uses which
were the subject of a conditional approval by the Board of
Appeals under Appl. No. 3835 rendered April 27, 1989 and Appl.
No. 3705 rendered March 3, 1988 (Arthur L. Junge, Inc.), as well
as site plan approval by the Southold Town Planning Board.
3. By this application, reduced setbacks are requested:
(a) from the northerly rear yard and westerly side yard at 14
feet and 24+- feet, respectively for the 13' by 27' foundation
of the proposed accessory storage building, and (b) from the
northerly rear yard at 39+- feet and from the westerly side yard
at 21+- feet for the foundation of the proposed monopole tower
Page 2 - Appl. No. ~8
Matter of NYNEX MOBiLE COMMUNICATIONS
Decision Rendered November 21, 1991
structure, all as more particularly shown on map of proposed
site plan and details prepared by Richard E. Tangel, P.E. dated
July 31, 1991.
4. The subject premises is located in the Light-Industrial
(LI) Zone District, and the setbacks applicable are noted for a
principal use structure at 70 from the rear property line and 20
for the side yard.
5. The following documentation and site plan information
are noted for reference and consideration:
la) an existing tree (screening) line is shown along
or very near the northerly and southerly lines of the subject
property; pine-tree screening must be located along the
westerly property line, as shown on the site plan maps;
(b) also proposed is a stockade fence along the
northerly and easterly sections of the proposed equipment
storage building;
(c) Certificates of Occupancy have been found of
record for the existing uses as follows: (1) #Z17295 issued on
September 13, 1988 for the electric shop/building of Arthur V.
Junge; (2) #Z18981 issued on April 23, 1990 for a wholeale
bakery and for Local Talent, Inc. in the existing
light-industrial building;
(d) the proposed equipment storage building and tower
structure will be unmanned, not requiring active daily parking
for additional on-site personal or any increase of on-site
customers related to the establishment of this public utility
use;
(e) other site plan elements are to be placed as
conditioned by the Planning Board under its simultaneously
pending site plan application {see PB letter of 11/7/91);
(f) New York SMSA Limited Partnership and NYNEX have
furnished information for the record concernings its licensing
as a public utility to provide cellular radio transmission
serving to its full extent the public interest, convenience and
necessary as per written consent and order authorized by the
N.Y.S. Public Service Commission, Federal Communications
Commission, etc., which includes limitation on the Effective
Radiated Power for mobile transmitters up to 7 watts, and output
power for mobile transmitters up to 60 watts. It is also not
permitted to be assigned or transferred to any person, firm,
company, or corporation without the written consent of the
Commission; and it is understood that upon any future proposal
of this applicant or owner(s) to transfer or assign this
Page 3 - Appl. No. ~8
Matter of NYNEX Mobile Communications/Junge
Decision Rendered November 21, 1991
authorization, subsequent application to this Board must be
filed for consideration.
6. Other relevant technical information considered in this
project are also noted below for the record:
(a) cellular communication systems must operate
through a network of cell sites, the first for this applicant in
the Town of Southold at the subject premises in Cutchogue.
(b) this cell site has two principal components, a
12' by 26 ft. (13' by 27' foundation) structure for computer
equipment storage, and transmitting/receiving antenna-tower
structure, both of which are incidental and necessary to operate
a wire line telephone communications use. The top of the tower
is 12 ft. equilateral triangle, 40 inches high, 36 inches at the
base and 18 inches at the top. There would be two whip
antennas that are 10 ft. above that, and one below.
(c) the tower and building are monitored seven days a
week, 24 hours per day per FCC mandates, although it is unmanned
physically at the site.
(d) the tower and antenna are solely for use by this
applicant/public utility and will not be rented or leased to any
other corporation, person, firm or company. Also, it is
expressly understood that no new cell, or expansion will be
established, unless further application and approvals by this
board and the regulating commissions, on this site in order that
appropriate criteria may be evaluated, including engineering
data relative to wind pressures, wind loads and other safety
considerations for such future utility expansion;
(e) the design of the tower and antenna submitted is
not a steel lattice design; this monopole structure must,
however, be designed to withstand continuous wind loads in
excess of 150 mph and wind peaks of 190 mph or more
(sufficiently mounted with wires and brackets capable to support
these pressures).
7. This date, a Special Exception was conditionally
approved by this Board concerning the applicant's request under
Article XIII, Section 100-130 of the Light Industrial (LI) and
Light Industrial-Office (LIO) Zoning Provisions for
authorization to establish a telecommunications use by a public
utility.
Page 4 - Appl. No. W58
Matter of NYNEX MOBILE COMMUNICATIONS
Decision Rendered November 21, 1991
8. In considering this application, the Board also finds
that the relief requested:
(a) will not be adverse to the essential character of
the neighborhood and is the minimum necessary to afford relief
under the circumstances;
(b) will not in turn be adverse to the safety,
health, welfare, comfort, convenience or order of the town, or
be adverse to neighboring properties;
(c) will not increase dwelling unit density or cause
a substantial effect on available governmental facilities;
(d) cannot be obviated by another method feasible to
appellant to pursue, other than a variance
(e) is uniquely related to the property and is not
personal in nature;
(f) in considering all of the above factors, the
interests of justice will be served by granting the variance,
conditionally noted below.
as
Accordingly, on motion by Mr. Goehringer, seconded by
Mr. Grigonis, it was
RESOLVED, to GRANT relief for the reduced setbacks
requeste~ and noted above on the first page, paragraph #3, in
the Matter of the Application of NYNEX MOBILE COMMUNICATIONS,
SUBJECT TO THE FOLLOWING CONDITIONS:
RESOLVED, that the application for a Special Exception for
the establishment of a public utility for the construction of a
cellular telephone communications tower and accessory
equipment-storage building as applied under Appl. No.. 4062 in
the Matter of NYNEX/ARTHUR V. JUNGE, INC., BE AND HEREBY IS
APPROVED, SUBJECT TO THE FOLLOWING CONDITIONS:
1. No excessive (disturbing) noise levels;
2. No expansion or additional construction (with the
exception of emergency, fire or police necessities which serve
the safety, health, welfare, comfort, convenience and order to
the town), unless further application and approvals are
obtained, and for which engineering certifications will be
required concerning increased loads, winds pressures and other
safety considerations for such expansion;
3. No microwave dishes, as agreed by the applicants (none
of which are proposed during the consideration of this
application);
Page 5 - Appl. No.,58
Matter of NYNEX Mobrle Communications/Junge
Decision Rendered November 21, 1991
application);
4. No disturbing emissions of electrical discharges,
light, vibration or noise, or harmful distribution levels of
radiation, as agreed.
5. The setbacks shall be not less than that applied for
and shown on the plan dated October 18, 1991 (Drawing No.
92-8012) prepared by Richard E. Tangel, P.E., from the northerly
property line.
VOTE OF THE BOARD: AYES: MESSRS. GOEHRINGER, GRIGONIS,
DOYEN AND VILLA. (MEMBER DINIZIO ABSTAINED FROM DISCUSSIONS AND
FROM VOTE). This resolution was duly adopted.
GERARD Po GOEHRINGER, CHAIRMAN
TOWN OF SOUTHOLD
ZONING BOARD OF APPEALS
In the Matter of the Application
of
NYNEX MOBILE COMMUNICATIONS,
for a Variance from
Article XIV, Section 100-142,
and/or,
for a Special Exception from
Article XIV, Section 100-141 B (1),
MEMORANDUM IN SUPPORT OF THE
APPLICATIONS OF NYNEX MOBILE COMMUNICATIONS
FOR A VARIANCE AND/OR SPECIAL EXCEPTION
POINT I
Site Backqround:
The property for which a variance and/or special exception is
sought is located at 21855 County Road 48, Cutchogue, New York,
more particularly designated on the Suffolk County Tax Map as
District 1000, Section 96, Block 1, Lot 19.1. The parcel is owned
by Arthur Junge and applicant, NYNEX Mobile Communications, is
before this Board as a lessee of a portion of Mr. Junge's property.
A copy of the lease is attached as Exhibit 1. Mr. Junge's consent
to the application and construction of the tower have been
previously provided to the Board.
1
The property was the subject of a decision by this Board in
December, 1987 a copy of which is attached hereto as Exhibit 2
(Application #3705). Mr. Junge's application at that time was a
request for a Special Exception to construct two buildings and
establish an electrical shop in the building The district in
which the property is located was at that time designated "C" Light
Industrial but is currently zoned Light Industrial. The property
was also the subject of a second decision by this Board rendered
in April, 1989 a copy of which is attached hereto as Exhibit 3
(Application #3835). At that time Mr. Junge sought an amendment
to the Special Exception application to include establishment of
a car repair business at the site with outside storage and future
occupancy of the vacant building by a use permitted in the LI
district. A bakery was subsequently established in the building
and copies of the CO for the bakery and Mr. Junge's electrical
business were attached to the application filed with this Board.
A portion of the site has been leased to the applicant for
construction of a pre-fabricated communications building and
monopole to allow cellular phone transmission. An application for
site plan approval was filed simultaneously with the Planning Board
and is pending before them at this time.
The applicant filed a request for a building permit with the
Building Department which request was denied on the basis that the
proposed construction failed to meet both the side and rear yard
set back requirements and a variance from this Board was required.
Subsequently, the applicant was advised that the requested
construction also required a Special Exception from this Board and
that application has also been filed although it is contended by
this applicant and will be alternatively argued in Point IIIB of
this memorandum that the requested Special Exception is not
required as the monopole qualifies
is a permitted use in LI.
This site was selected by
as a telephone exchange which
the applicant because it is
presently utilized by commercial enterprises, is on a major roadway
into the area and is located in a district which permits both
telephone exchanges and public utilities. The blending of these
factors yields the least disruption to residential areas and is not
aesthetically out of character with the remainder of the parcel
while promoting the applicant's business endeavors which is to
provide services to the public.
A~licant and Use Backqrcund:
NYNEX Mobile Communications is a public utility engaged
among other things, the business of supplying radio cellular
3
telephone service to the public. NYNEX has authorization to
provide such service and is licensed by the FCC. Copies of proof
of this status and authorization have been previously supplied to
the Board.
A public utility is an organization that supplies such things
as water, electricity or telephone service, etc. to the public,
operated by a private corporation under a government franchise.
In New York, the courts have determined that public utilities are
monitored and regulated by the Public Service Commission.
The application filed with this Board indicates that applicant
seeks to construct, by use of a pre-fabricated structure, a
building to house its communications equipment and a monopole radio
tower to transmit signals.
Telephone communications have traditionally been conducted
over cables which have run the gamut from copper to fiber optics.
In 1982, the FCC began granting licenses for companies to build and
operate mobile telephone systems based on cellular radio
technology. While traditional systems carry the electric impulses
over cables to telephone exchanges with switching equipment, which
in turn transmit the call to the recipient instrument, a cellular
system utilizes radio signals to transmit and switch the call. In
a cellular system geographic area is divided into cells (usually
4
with a radius of 5 to 15 miles)
radio transmitter and receiver.
from cell to cell, the call is
each of which has a low powered
As a phone equipped car travels
transferred or switched from one
transmitter and receiver to another without interruption of the
conversation. Cellular systems actually handle more calls than
earlier systems that utilized high powered transmitters and
receivers for a much larger geographic area.
Traditional systems utilize a system which includes a
telephone exchange or central office to which a telephone
subscriber is connected by cable. That exchange is linked via a
trunk cable to other exchanges so that a call can be routed and
carried to its ultimate destination through switches located at
the exchange. The tower to be constructed by the applicant serves
the same basic function of switching or connecting a subscriber
and maintaining that call so that it will reach its destination.
The similarity and congruence of operation between a traditional
telephone exchange and a cellular radio tower is the basis for
applicant's contention and alternative request that the
construction does not require a Special Exception as telephone
exchanges are a permitted use in the LI district.
5
POINT I~!
Rec~uested Relieff:
The building to be constructed will house communications
equipment and will be approximately 312 square feet. The equipment
does not require on site personnel and thus will not add traffic
nor automobiles to the existing roadway or premises. The equipment
is serviced by a maintenance crew who will visit the site
approximately once per month. The free standing monopole antenna
structure will be approximately 100 feet in height adjacent to the
equipment building. There will be cables and other connecting
links between the building and the monopole. A security fence
(chain link or comparable construction) may be constructed if
deemed necessary.
A. Set Back Variances
1. The proposed structures because of the existence of
the building and asphalt parking area have been located in the rear
of the lot at the northeast corner. Although the proposed location
meets the total side yard set back requirements (45') the side yard
set back on the east side of the property is approximately 14'
rather than the required 20'. The rear set back is approximately
24' instead of the required 70'.
6
The side yard set back is therefore 70% of what is required
necessitating a variance or reduction of 30% and the rear yard set
back is 34% of what is required necessitating a variance or
reduction of 66% in what is required under the applicable code
sections
The standard
of review for area variances is the well known
and often cited Wachsberqer v. Michalis, 191 N.Y.S. 2d 621 (1959)
in which the court set forth the matters to be considered by a
Board of Appeals:
1. How substantial is the variance in relation to the
requirement?
2. What effect, if any, will the variance if granted have on
available governmental facilities?
3. Will the variance produce a substantial change in the
character of the neighborhood or be of a substantial detriment to
the adjoining properties?
4. Can the difficulty be obviated by some other means, other
than a variance?
5. In view o the manner in which the difficulty arose and
considering all of the above factors, will the interests of justice
be served by allowing the variance?
The requested relief, although a rather substantial deviation
from the requirement for only the rear yard set-back:
7
1. will not have an effect on available governmental
facilities,
2. does not produce a substantial change in the character of
the neighborhood or create a substantial detriment to adjoining
properties
3. has no other means of obviating the need for the variance
4. and justice would certainly be served by granting the
requested variances
The proponents of set-back requirements have urged the
aesthetic objectives as the primary objective of such requirements,
Goreb v. Fox, 274 U.S. 603 (1927). While the courts have stated
that health and safety cannot be ignored as an objective, (~ulfsohn
v. Burden, 241 N.Y. 288 (1925)) the relief requested by this
applicant does not offend either objective. This structure will
be located on a parcel zoned for light industrial use, which is
currently being utilized for that purpose. The structures are to
be located in the rear of the property, a short distance from the
Town landfill. In New York, set back requirements have been
upheld, largely because they allow light and air and decrease fire
hazards with improvement of appearances
VanAuken v. Kimmey, 252 N.Y.S. 343 (1931).
present with the instant application, and,
to the granting of a variance.
a secondary benefit
These concerns are not
thus are not obstacles
The structures do not affect the
8
light, air or fire hazards to adjacent property.
The requested relief comes under the broad title of an "area"
variance [Fleminq v. Choate, 190 N.Y.S. 2d 741 (2d Dept. 1959)] and
as stated earlier is governed by the standard of "practical
difficulties". Wacksberaer v. Michalis, supra. Additionally, set-
back variances need not be submitted to the environmental quality
review process. 6 NYCRR 617.13 (1976).
The location of the structures was determined on the basis of
the existing structures, the prior approvals, the least disturbance
to the parcel and the best accessibility for service vehicles.
These factors which determined the location of the structures
create practical difficulties in complying with the code
regulations and thus a variance is sought. To locate the
structures otherwise would be to disturb the pre-existing parking
area and pre-existing approved parking spaces granted to the lot
owner by the Planning Board on May 9, 1988. As it stands now the
location of the structure has disturbed some of the parking spaces
and the applicant has been required to submit a second site plan
showing those spaces and their relocation. A copy of the new site
plan indicating the relocation of the affected parking spaces was
submitted previously to this Board as part of the plan indicating
the fall down radius of the tower.
The owner of the parcel clearly delineated his intention to
9
rent available space at his complex when he previously appeared
before both this Board and the Planning Board in order to foster
both his own business and those of his tenants. He has
subsequently been allowed to amend his special exception in order
to proceed with those plans to bring additional businesses and
employment to the area. Applicant's use will more than meet the
objective of the parcel owner. In addition, it will bring a
service to the public at large which applicant supplies in its role
as a public utility. Thus, granting of the requested relief
insures that the owner will not suffer economic injury by depriving
him of the rental income, the health and safety of the adjacent
property will not be detrimentally affected and the applicant will
be able to meet its mandate to serve the public while engaging in
its regulated business.
B. Special Exception
Applicant asks this Board to consider the request for a
Special Exception as alternative relief, as applicant contends such
relief is not required. Article XIV, Section 100-141 B(1) allows
as a special exception in the L.I. district all those uses
permitted for the L.I.O. District pursuant to Article XIII, Section
1000-131 B(1) to (11). Subsection (4) of that Section permits
public utility structures and uses. Such uses are not defined in
the code but applicant is a public utility (see exhibits previously
10
supplied) and as defined earlier ( see page 3) its function is to
supply such things as water, electricity or telephone service, etc.
to the public. It logically follows, therefore, that any structure
or use by an established public utility which fosters that function
is a public utility structure and a use as envisioned by the code.
Article XXVI, Section 100-260 implicitly states what the case
law has determined, which is, that a special exception is a
permitted use in a given district, albeit one that requires some
additional scrutiny. It is especially significant to note the
difference between a special exception and a variance. A special
exception is a use expressly permitted by the zoning ordinance
while a variance is the authority to use the site in a manner
otherwise forbidden, Mobile Oil Corp. v. Oaks, 390 N.Y.S. 2d 276
(4th Dept. 1976); Goldstein v. Board of Zoninq Appeals, 113 Misc.
2d 756; 449 N.Y.S. 2d 910 (S/Ct. Nassau Co. 1982). The
significance of the difference is the standard to be applied. The
court has said it is error for a board of appeals to apply variance
standards to a request for a special exception, Rick v. Zoninq
Board of Appeals, 384 N.Y.S. 2d 862 (2d Dept. 1976).
It is usual for a zoning ordinance to empower a board to issue
a special exception after notice, hearing and findings. Such is
the case in Southold Town (Section 100-262). The standards to be
met are set forth in Section 100-263 (Exhibit 4).
11
In applying those standards, Section 100-264 sets forth the
matters to be considered (Exhibit 5).
The Board should note that with regard to the matters to be
considered and the relief requested by this application that:
1. the existing character and eventual development of the
uses in the district will not be adversely affected and this
district is peculiarly suitable to the requested use (100-264A).
2. the property values will not be affected and this is an
appropriate use for this land (100-264B).
3. the location of the structures at the rear of the parcel
on a parcel with already existing egress and ingress and which does
not require resident personnel will have no effect on vehicular
traffic (100-264C).
4. the use will not increase demand on public or private
services or facilities (100-264D) and will not produce gases,
odors, smoke or soot (100-264E) and will not cause disturbing
emissions of dust, light, vibrations or noise (100-264F).
5. there are no public parking or recreational facilities
within close proximity to be disturbed (100-264G) and parking is
already present at the site and the additional structures do not
require on-site personnel (100-264H).
6. the site already has accessibility for emergency vehicles
and the new structures do not create a hazard to life, limb or
12
property (Section 100-264I). With regard to the fall down radius
of the monopole, applicant has submitted sketches of the requested
radius of the area involved. Also applicant submits a report by
the manufacturer of the monopole that in 20 years of experience
they have no knowledge of the failure of such a monopole (Exhibit
6) and copies of the weather data indicating that the wind in this
area has not reached a velocity of potential danger to this
structure.
7. the plot is sufficient, appropriate and adequate for this
use and the new structures will not cause an overcrowding of the
land and do not add to the population of the area (no personnel
except for maintenance crews) (100-264J & K).
8. the parcel is not within proximity of a place of public
assembly and being in the L.I. district it is suitable for the use
requested. See decision of the Board dated July 25, 1991 in a
prior similar application bearing application No. 4022-SE (Metro
One) (100-264L & M).
9. the building on the parcel already screens the rear
portion from public view and provides a buffer area to adjacent
property (100-264N). The parcel has already made provision for
collection and disposal of stormwater run-off, sewage refuse and
other liquid, solid and gaseous waste and the new structures will
not alter or add to these items (100-264 0). See previously
13
approved and new site plans.
10. The proposed use will not disturb or disrupt any natural
features, the site already having been developed and the function
will not produce any emissions which could effect groundwater and
surface waters (100-264P).
Conclusion:
The set-back variance should be granted together with the
Special Exception if the Board finds that the structure does not
constitute a telephone exchange.
Respectfully submitted
MARIE ONGIONI
Attorney for Applicant
218 Front Street
P. O. Box 562
Greenport, N. Y. 11944
14
EXHIBIT i
OPTION AND LEASE AGREEMENT
This Agreement, made this J day of ~, 1991, between Arthur V.
Junge, having offices at 21855 Country Road, Cutchogue, New York 11935
(hereinafter referred to as Lessor), and New York SMSA Limited Partnership, a
Delaware limited partnership in which New York Cellular Geographic Service Area,
Inc., a subsidiary of NYNEX Mobile Communications Company, is the General Partner,
having its principal offices at 2000 Corporate Drive, Orangeburg, New York 10962
(hereinafter referred to as Tenant).
OPTION AGREEMENT
WHEREAS Lessor is the owner of certain real property located at 21855
Country Road, Cotchogue, New York; and
WHEREAS Tenant desires to obtain an option to lease ~ portion of said
real property for the purpose of constructing, maintaining and operating a mobile
communications facility, consisting of a prefabricated equipment building of
approximately 312 square feet to be installed by Tenant in the premises and one
free-standing monopole antenna structure approximately 100 feet in height, with a
right of way for access thereto, and the installation of wires, cables and neces-
sary connections between the equipment building and the monopole, all as substan-
tially shown on Exhibits "A" and "B", attached hereto and made a part hereof.
NOW, TItEREFORE, in consideration of the sum of Five Hundred Dollars
($500.00), hereinafter referred to as the Option Money, paid by Tenant to Lessor
upon execution of this Agreement by both parties, Lessor grants to Tenant the
option to lease said property, including a right of way for access thereto, seven
days a week, twenty-four hours a day, for tha installation and maintenance of its
facility as herein described, for .the term and in accordance with the Lease
Agreement and its covenants and conditions set forth therein.
Thls option may be exercised at any time on or prior to November 15,
1991. The time during which the option may be exercised may be extended by Tenant
for six months through May 15, 1992, by Tenant giving Lessor written notice of
said extension not later than October 15, 1991, and the payment by Tenant to
Lessor of an additional Five Hundred Dollars ($500.00) Option Money. If during
the option period Lessor decides to sell the subject premises or make alterations
thereto, Lessor shall immediately notify Tenant in writing so that Tenant may take
steps oecessary to protect Tenant's interest in the property. Any sale or altera-
tion, however, shall be subject and subordinate to the terms of this Agreement.
This Agreement may be sold, assigned or transferred at any time without
the consent of Lessor to a partnership or corporation having a general partner or
a shareholder, respectively, which is a subsidiary or affiliate of NYNEX Mobile
Communications Company. As to other parties, this Agreement may not be sold,
assigned or transferred without the written consent of Lessor, such consent not to
be unreasonably withheld or delayed.
Should Tenant fail to exercise its option within the time herein
limited, all rights and privileges granted hereunder shall be deemed completely
surrendered, this option terminated, and Lessor shall retain all Option Money, and
no additional money shall be payable by either party to the other. Should Tenant
exercise its option, no part of any Option Money shall be applied toward the rent.
Lessor shall grant Tenant, during the option period, free ingress and
egress to the premises to conduct engineering tests and other activities of
similar nature as Tenant may deem necessary, at the sole cost of Tenant.
Lessor agrees to execute a Memorandum of Agreement, to be prepared by
Tenant, if requested by Tenant, which Memorandum of Agreement may be recorded by
Tenant at Tenant's expense.
This Agreement and the performance hereunder shall be governed, inter-
preted, construed and regulated by the laws of the State of New York.
If Tenant exercises the option, notice of such exercise shall be given
by Tenant to Lessor in writing by certified mail, return receipt requested.
Notice shall be deemed effective on the date it is posted. On the first day of
the month following the glving of such notice, the following Lease Agreement shall
become effective.
This
Country Road,
New York SMSA
York Cellular
Communications
2000 Corporate
Tenant).
LEASE AGREEMENT
Agreement, made between Arthur V. Junge, having offices at 21855
Cutchogue, New York 11935 (hereinafter referred to as Lessor), and
Limited Partnership, a Delaware limited partnership in which New
Geographic Service Area, Inc., a subsidiary., of NYNEX Mobile
Company, is the General Partner, having its principal offices at
Drive, Orangeburg, New York 10962 (hereinafter referred to as
parcel of
New York,
WITNESSETH:
1. Lessor hereby leases to Tenant that certain interior space and a
property located at premises designated 21855 Country Road, Cutchogue,
with a right of way for access thereto, seven days a week, twenty-four
hours a day, all as substantially sho~] on Exhibits "A" and "B", attached hereto
and made a part hereof.
2. This Lease
beginning on the first
Agreement shall be for an initial term of five years,
day of the month following Tenant's giving of notice to
Lessor of its exercise of the option to lease these premises (hereinafter referred
-3-
to as the Commencement Date) at an annual rental of Twenty-Four Thousand Dollars
($24,000.00), to be paid in equal monthly installments of Two Thousand Dollars
($2,000.00) on the first day of the month, in advance, to Lessor or to such other
person, firm or place as Lessor may, from time to time, designate in writing at
least thirty days in advance of any rental payment date.
While Tenant intends to make each payment due hereunder on or before its
due date, in the event Tenant fails to make a payment within ten days after its
due date Lessor will give Tenant written notice of such nonpayment and Tenant will
immediately make such payment. No action may be maintained by Lessor against
Tenant for such nonpayment unless Tenant has failed to make payment within ten
days after receipt of such written notice from Lessor.
3. Tenant shall have the option to extend this lease for three addi-
tional five year terms by giving the Lessor written notice of its intention to do
so at least six months prior to the end of the then current lease term.
4. The annual rental for each year of the first five year extension
term shall be Thirty Thousand Dollars ($30,000.00) payable in equal monthly
installments of Two Thousand Five Hundred Dollars ($2,500.00) on the first day of
each month; the annual rental for each year of the second five year extension term
shall be Thirty-Seven Thousand Five Hundred Dollars ($37,500.00) payable in equal
monthly installments of Three Thousand One Hundred Twenty-Five Dollars ($3,125.00)
on the first day of each month; and the annual rental for each year of the third
five year extension term shall be Forty-Six Thousand Eight Hundred Seventy-Five
Dollars ($46,875.00) payable in equal monthly installments of Three Thousand Nine
Hundred Six Dollars Twenty-Five Cents ($3,906.25) on the first day of each month.
Agreement has
notice of an
If at the end of the third five year extension term this Lease
not been terminated by either party by giving to the other written
intention to terminate it at least slx months prior to the end of
-4-
such term,
conditions
terminated
this Lease Agreement shall continue in force upon the same terms and
for a further term of one year and for annual terms thereafter until
by either party by giving to the other written notice of its intention
to so terminate at least six months prior to the end of such term. Monthly rental
for this period shall be equal to the rent paid for the last month of tile third
five year extension term.
6. Tenant intends to use the premises for the purpose of constructing,
maintaining and operating a mobile communications facility and uses incidental
thereto, consisting of a prefabricated equipment building to be installed by
Tenant in Lessor's building, and one free-standing monopole antenna structure
approximately 100 feet in height, and all necessary connecting appurtenances, all
as aforesaid. A security fence consisting of chain link or comparable construc-
tion may be placed on the property if deemed necessary or advisable by Tenant.
Tenant may install electrical, air conditioning, sprinkler and other systems and
meters as may be necessary to maintain its equipment, and all costs of services
for same shall be borne by Tenant. All improvements shall be at Tenant's expense.
Tenant will maintain tile property in a reasonable condition.
7. Lessor acknowledges that Tenant's ability to use the premises is
contingent upon its obtaining, either before or after the Commencement Date of
this Lease Agreement, all of the certificates, permits, licenses and other ap-
provals that may be required by any federal, state and local authorities. Lessor
shall cooperate
take no action
respect to the
termines, in
governmental
certificate,
with Tenant
which would
proposed use
in its efforts to obtain such approvals and shall
adversely affect the status of the premises with
thereof by Tenant. In the event that Tenant de-
its sole judgment, that it will be unable to obtain all necessary
approvals, or if any of such applications should be rejected or any
permit, license or approval~ issued to Tenant is subsequently can-
-5-
celled, expires, lapses or is otherwise withdrawn or terminated by governmental
authority so that Tenant, in its exercise of reasonable judgment determines that
it will be unmble to use the premises for its intended purposes, Tenant shall have
the right to terminate this Lease Agreement. Notice of Tenant's exercise of its
right to terminate shall be given to Lessor in writing by certified mail, return
receipt requested, and shall be effective upon mailing of such notice by Tenant
(the Termination Date). Ail rentals paid to the Termination Date shall be re-
tained by Lessor, but all rentals allocable on a pro rata basis to the period
subsequent to the Termination Date shall be refunded to Tenant. Upon such
termination this Lease Agreement shall become null and void and the parties shall
have no further obligation, including tile payment of money, to each other, except
for Tenant's obligation pursuant to Paragraph 11 hereof.
8. Tenant shall indemnify and hold Lessor harmless against any claim
of liability or loss for personal injury or property damage resulting from or
arising out of the use and occupancy of the premises by Tenant, its servants or
agents, excepting, however, such claims or damages as may be due to or caused by
the acts of Lessor, its employees or agents.
9. Tenant shall provide Lessor with a certificate of insurance issued
by a reputable insurance company licensed to do business in the State of New York
indicating comprehensive general liability insurance in the amount of $1 million
for bodily injury and $1 million for property damage, and in which Lessor is named
as an additional insured with respect to the leased premises. Tenant will provide
Lessor with a renewal certificate when requested by Lessor.
10. Provided Tenant is not in defanlt hereunder and shall have paid all
rents and sums due and payable to Lessor by Tenant, Tenant shall have the right to
terminate this Lease Agreement upon the annual anniversary of the Commencement
Date of this Lease Agreement, provided that six months prior written notice is
given to Lessor.
1t. Tenant, upon
reasonable period, remove
monopole antenna, security
termination of this Lease Agreement, shall, within a
its equipment building, personal property, equipment,
fence (if any), connections and other fixtures and
restore the premises to its original condition, reasonable wear and tear excepted.
12. Should Lessor, at any time during tile term of this Lease Agreement,
decide to sell the leased premises or make alterations thereto which may adversely
affect Tenant's operation of its mobile communications facility, Lessor shall
immediately notify Tenant in writing. Any sale or alteration, however, shall be
subject and subordinate to the terms of this Lease Agreement and Tenant's rights
hereunder, and Lessor shall do nothing which would interfere with the use of the
premises by Tenant in connection with its mobile communications operations.
13. Lessor covenants that Tenant, on paying the rent and performing the
covenants, shall peaceably and quietly have, hold and enjoy the ~eased premises.
14. Lessor warrants and covenants tbat Lessor is seized of good and
sufficient title and interest to the subject premises and has full authority to
enter into and execute this Lease Agreement, and that there are no liens, judg-
ments or impediments of title which would adversely affect this Lease Agreement.
Any breach of these warranties and covenants which preclude Tenant's use of said
premises for its intended purpose shall entitle Tenant to terminate this Lease
Agreemeut and receive back all monies paid hereunder.
15. In the event Tenant fails to comply with any of the provisions of
this Lease Agreement or to perform any of its obligations hereunder, including the
payment of
payment of
notice from
against Tenant
rent, Lessor shall give Tenant written notice of such breach or non-
rent, and Tenant shall have ten days after receipt of such written
Lessor to cure such default. No action may be maintained by Lessor
for such breach unless Tenant bas failed to cure same within ten
-7-
days after receipt of such written notice.
16. This Lease Agreement
understandings between Lessor and
understandings shall be binding
controversy or proceeding at law.
oontains all the agreements, promises and
Tenant, and no oral agreements, promises or
upon either Lessor or Tenant in any dispute,
Any addition, variation or modification of this
Lease Agreement
the parties.
governed,
York.
time
shall be void and ineffective unless made in a writing signed by
17. This Lease Agreement and the performance thereunder shall be
interpreted, construed and regulated by the laws of the State of New
18. This Lease Agreement may be sold, assigned or transferred at any
without the consent of Lessor to a partnership or corporation having a
general partner or a shareholder, respectively, which is a subsidiary or affiliate
of NYNEX Mobile Communications Company. As to other parties, this Lease Agreement
may not be sold, assigned or transferred without the written consent of Lessor,
such consent not to be unreasonably withheld or delayed.
19. Ail notices hereunder must be in writing and shall be deemed
validly given if sent by certified mail, return receipt requested, addressed as
follows (or any other address that the party to be notified may have designated to
the sender by like notice):
Tenant:
Copy to:
Lessor:
New York SMSA Limited Partnership
2000 Corporate Drive
Orangeburg, New York 10962
Attn: Manager - Real Estate
Joseph A. tlallock, Esq.
Hallock & Amann
175 Fairfield Avenue, Suite lA
West Caldwell, New Jersey 07006
Mr. Arthur V. Junge
21855 Country Road
Cutchogue, New York 11935
-8-
20. This Lease Agreement shall inure to the benefit of and bind the
heirs, personal representatives, successors and assigns of the parties hereto.
any
part of
however,
in the
21. At Lessor's
future mortgage made
Lessor's property
option, this Lease Agreement shall be subordinated to
by Lessor which from time to time may encumber all or
of which the leased premises are a part; provided,
every such mortgage shall recognize the validity of this Lease Agreement
event of a foreclosure of Lessor's interest and also Tenant's right to
remain in occupancy of and have access to the leased premises as long as Tenant is
not in default under this Lease Agreement. Tenant shall execute whatever instru-
ments may reasonably be required to evidence this subordination provision.
In the event the leased premises are presently encumbered by a mortgage,
Lessor will obtain and furnish to Tenant a non-disturbance instrument for each
such mortgage in recordable form.
22. Lessor agrees to execute a Memorandum of Agreement to be prepared
by Tenant, if requested by Tenant, which Memorandum of Agreement may be recorded
by Tenant at Tenant's expense.
IN WITNESS WHEREOF, the parties hereto have set their hands and affixed
their respective seals the day and year first above written.
Witness:
Lessor: ~
Arthur ¥. ,lunge
Date: {~ ~ , 1991
Witness:
Tenant:
New York SMSA Limited
Partnership
Noreen A. Conlon, Vice President
New York Cellular Geographic
Service Area, Inc.,
General Partner
Date: ,.~ - 31. , 1991
-9-
ACKNOWLEDGEMENT
STATE OF NEW YORK :
: ss
COUNTY 0 :
On the .~/bC/day of k~tzn(~ , 1991, before me came Arthur V. Junge, to me
known, who being duly ~sworn did acknowledge that he is the person named in the
within document, and that he executed said document as his voluntary act and deed
for the uses set forth therein.
SUSAN J. NAGY
NotaV Public, State o! New York
Ho, 4896735
Oua!ili~l in Suflo~ Coun~
STATE OF NEW YORK :
: SS
COUNTY OF ROCKLAND :
On the .~l~--day of } ~c~c{ , 199l, before me came Noreen A. Conlon, to me
known, whom being duly sworn, did acknowledge that she is Vice President of New
York Cellular Geographic Service Area, Inc., General Partner, described in and
which executed the foregoing Instrument; that the seal of the corporation ls
affixed hereto; and that this document was signed and made by the corporation as
its voluntary act and deed by virtue of authority from its Board of Directors.
KATHERINE ZIMMERMAH
~u,~ ~ ~._~ ~ /
-10-
"EXHIBIT A"
Fenced Area
Monopole ~
12 ' x 26' Prefab
Equipment Shelter
PARKING AREA
JUNGE MECHANIC,.% CORPORATION
HEADQUARTERS
FRONT PARCEL
SOUND AVENUE
( l:;Xlll IBI q' ~B }
AI.P 9212
100 ft Nonopole
EXHIBIT 2
Southold Town Board of Appeals
ACTION OF TIlE ZONING BOARD OF APPEALS
App]. NO. 3705-5E
Application Dated December ]6, ]987
TO: Mr. Arthur V. Junge [Appellant(s)]
6880 Nassau Point Road
Cutchogue, NY 11935
At a Meeting of the Zoning Board of Appeals held on March 3, ]988,
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
EX] Request for Special Exception under the Zoning Ordinance
Article VI~i , Section 100-80(B)
[ ] Request for Variance to the Zoning Ordinance
Article , Section
[ ] Request for
App]ication of ARTHUR V. JUNGE for a Special Exception to the Zoning
Ordinance, Article VIII, Section ]00-80(B) for permission to establish
electrical shop use and construct two buildings located as shown on Site
Plan dated March ]0, 1987, prepared by John A. Grammas & Assoc. Zone
District: C-Light Industrial. Location of Property: North Side of
C.R. 48, Cutchogue, NY; County Tax Map Distr(ct 1000, Section 96,
Block l, Lot 19, containing 45,589± sq. ft. in lot area.
WHEREAS, a publ(c hearing was held and concluded on January 14,
1988 in the Matter of the Appl(cation of ARTHUR V. JUNGE under
Appl. No. 3705-SE; and
WHEREAS, at said hearing all those who desired to be heard
were heard and the(r testimony recorded; and
WHEREAS, the Board has carefully considered all testimony
and documentation submitted concerning this application, and
WHEREAS, the Board Members have personally viewed and are
familiar with the premises in quest(on, its present zoning, and
the surrounding areas; and
WHEREAS, the Board made the following findings of fact:
]. The premises in question is a described parcel of land
containing a lot area of .975 of an acre, or 45,589 sq. ft. with
frontage (lot width) of 168.]7 feet along the north side of C.R. 48,
in the Hamlet of Cutchoque, is vacant, and is more particularly
shown on the Suffolk CoUnty Tax Maps as Distr(ct 1000, Sect(on 96,
810ck 1, Lot 19.
2. The subject premises is located in the "C" Light Industrial
Zoning District as approved by the Town Board at a Regular Meeting
held December 15, ]987, and is (mmediateIy adjacent to the Southold
Town D(sposal Site at the north side. The premises immediately
adjoining this property along the west s(de is a parcel of 1.2+
acres improved with a single-family dwe()ing and along the east
side is a vacant parcel of 39,524 sq. ft., which has also received
a change of zone from "A" to "C" (Parcel ]000-96-]-20).
(CONTINUED ON PAGE TWO)
DATED: March 3, 1988. CNAIPJ~AN, SOUTIIOLD TO,TN ZONING BOARD
OF APPEALS
Form ZB4 (rev. 12/81)
EXHIBIT 3
Southold Town Board o£ App Is
'~,?? .% ,~ MAIN ROAD - STATE ROAD 25 P.O. BOX 1179 SOUTHOLD, L.I.. N.Y. 11971
APPEALS BOARD
MEMBERS
GERARD p. GOEHRINGER, CHAIRMAN
CHARLES GRIGONI5, JR.
SERGE DOYEN, .IR.
JOSEPH H. SAWlCKI
JAMES DINIZIO, JR.
TELEPHONE (516) 765-1809
FAX No, (516) 765'1823
ACTION OF THE BOARD OF APPEALS
Appl. No. 3835:
Matter of the Application of ARTHUR V. JUNGE, INC. -
Amendment to Special Exception Granted under Appl. No. 3705
under Article VIII, Section 100-80B of the prior Zoning
Regulations for this previously zoned C-Light Industrial Zone
District, now re-zoned to Light Industrial, Article XIV, Section
100-141, to include establishment of car repairs with outside
storage and future occupancy of vacant building area at easterly
side of building (said use to be a permitted use in this Zone
District). Location of Property: 22355 C.R. 48, Cutchogue,
NY; County Tax Map District 1000, Section 96, Block 1, Lot 19,
containing 45,589+- sq. ft. in lot area.
At a Meeting of the Zoning Board of Appeals held on
April 27, 1989, the following action was taken:
WHEREAS, a public hearing was held on April 13, 1989, under
File No. 3835, filed March 10, 1989; and
WHEREAS, at said hearing all those who desired to be heard
were heard and their testimony recorded; and
WHEREAS, the Board has carefully considered all testimony
and documentation submitted concerning this application; and
WHEREAS, the Board Members have personally viewed and are
familiar with the premises in question, its present zoning, and
the surrounding areas; and
WHEREAS, the Board made the following findings of fact:
1. By this application, applicant requests an Amendment to
Special Exception Application No. 3705 to include establishment
of car repairs with outside storage and future occupancy of
vacant building (to be occupied with a use permitted in this
Light Industrial Zone District).
old Town Board of Appeals -2- April 27, 1989 Special Meeting
(Appl. No. 3835 - ARTHUR V. JUNGE, INC. decision, continued:)
2. The property in question:
(a) contains a total lot area of 45,589 square feet
and lot width {frontage) along the north side of County Road 48
of 168.17 feet, in the Hamlet of Cutchogue;
(b) is identified on the Suffolk County Tax Maps as
District 1000, Section 96, Block 1, 19;
(c) is located in the Light Industrial Zone District,
as ~e~designated January 10, 1989 under the new Master Plan
revisions;
(d) is bound on the northerly side by the Southold
Town Landfill, on the west by a single-family dwelling now or
formerly of J. Harris Estate, and on the east by vacant land now
or formerly of Gray, all of which is also located in the Light
Industrial Zone District.
3. For the record, it is also noted that:
(a) an Use variance was denied without prejudice
under Appeal No. 3635 on August 20, 1987, when the premises was
zoned "A" Residential and Agricultural;
(b) a Change of Zone was granted by the Southold Town
Board on December 15, 1987, re-zoning the premises from "A"
Residential and Agricultural to "C-Light Industrial";
(c) a Special Exception for the construction and
occupancy of a 7,750 sq. ft. building was granted by the Board
of Appeals on March 3, 1988 under Appl. No. 3705;
(d) the occupants of the building on or about
January 1, 1989, are believed to be for the following uses: (1)
contractor's business and shop; {2) vehicle-repair business
and shop; (3) storage, parking and similar uses accessory and
incidental to the established principal uses.
4. By this application, the property owner requests
approval, as an amendment to the 1988 Special Exception
approval:
(a) for the establishment of the vehicle repair
business and shop occupying approximately one-third of the floor
area of the existing building (at the center thereof) and for
Id Town Board of Appeals -3- April 27, 1989 Special Meeting
(Appl. No. 3835 - ARTHUR V. JUNGE, INC. decision, continued:)
approval of outside storage of licensed vehicles, parked while
under repair, with proper screening. The area of the proposed
vehicle parking (vehicles for repairs) is that area directly in
the rear yard, behind the building, with fencing and/or other
screening around the periphery of the rear yard, including that
area close to the northerly and easterly property lines, and
squared off to the northeasterly corner of the rear of the
building (if needed for reference, see subject storage area
depicted in red on Drawing No. P-la dated March 10, 1987,
submitted for consideration);
(b) for occupancy of Bay %3 at the easterly third
section of the building for a Special Exception use only as
permitted under the Light Industrial Zone District regulations.
It should be noted, however, that the Light Industrigl (LI) Zone
District provides for certain uses already provided in other
zone districts listed on the previous pages of the Zoning Code
{such as the "LIO" Light-Industrial Office/Park, Section
100-13lB{i-ii}, "B" General Business, Section 100-101A{3-5} and
B{5,7,10}, which includes warehouses, building material storage
and sales, building contractors yards, cold storage plants,
etc.).
5. Additionally, it is noted that Article XIV, Section
100-141, Subsection B(1) permits by Special Exception and site
plan approval any special exception use set forth in and as
regulated by Section 100-131B(1-11) of the Light Industrial
Park/Planned Office Park Zone District. Subsection 100-131B{2}
thereof provides by special exception and site plan approval:
...Light industrial uses involving the fabrication,
reshaping, reworking, assembly or combining of products
from previously prepared materials and...Such uses may
include industrial operations such as electronic, machine
parts and small component assembly... -
It is the opinion of the Board that based on the precedents
concerning permitted light-industrial uses under the previous
zoning code, and the fact that the vehicle repairs will be minor
or include installation of (small) electronic or mechanic parts
into the vehicles, that the use is similar to other permitted
light industrial uses for the purposes of this Amendment and is
of the same or similar nature of a light-industrial use.
d Town Board of Appeals -4- April 27,
1989 Special Meeting
(Appl. No. 3835 - ARTHUR V. JUNGE, INC. decision, continued:)
6. In considering this application, the Board also has:
(a) considered Section 100-262 [General Standards) and Section
263 (Consideration) of the zoning code; (b) determined the
use will not prevent the orderly and reasonable use of adjacent
properties or of properties in adjacent-use districts; [c)
determined the safety, health, welfare, comfort, convenience,
and order of the town will not be adversely affected by the
proposed use and its location; [d) determined that the use is
in harmony with and will promote the general purposes and intent
of zoning since this is a use which was permitted by special
exception application (with the exception of the formality of
requiring a written amendment to the Special Exception in effect
at the time of the filing of this application)
plan); [e) the applicant has had numerous applications before
the Boards, and due to the timeliness during the procedures was
not able to have the same finalized.
Accordingly, on motion by Mr. Dinizio, seconded by
Mr. Grigonis, it was
RESOLVED, to GRANT an Amendment to the Special Exception as
requested (under Application No. 3835) in the Matter of ARTHUR
V. JUNGE, INC., SUBJECT TO THE FOLLOWING CONDITIONS:
1. Vehicles stored outside of the building must be
licensed, in taxt, and located only in this screening-in
rearyard area;
2. Any extended storage area outside of the building will
require re-application for re-consideration by the Board of
Appeals;
3. The types of screening for the enclosure of the
proposed outside vehicle storage area shall be designated at the
discretion of the Planning Board under its site-plan regulations.
Vote of the Board: Ayes: Messrs. Goehringer, Grigonis,
Sawicki and Dinizio. (Absent, as agreed for this Special
Meeting, was: Member Doyen of Fishers Island.) This
resolution was duly adopted.
lk
GERARD p. GOEHRINGER, ~HAIRMAN
SOUTHOLD TOWN BOARD OF APPEALS
EXHIBIT 4
§ 100-263. General standards.
No special exception approval shall be granted unless the Board
having jurisdiction thereof specifically finds anti determines the
following:
A. That the use will not prevent the orderly and re,~amable use of
adjacent properties or of properties in adjacent uae distrlcl.s.
B. That the use will not prevent the orderly aud reasonable use of
permitted or legally established uses in the district wherein
the proposed use is to be located or of permitted or legally
established uses in adjacent use districk~.
C. That the safety, the health, the welfare, the comfort, the
convenience or the order of the town will not be adversely
affected by the proposed u~ and iks location.
D. That the use will be in harmony with and promote the general
purposes and intent of this chapter.
E. That the use will be compatible with il~ snrrolmdlngs and with
thc character of the neighbnrln.~d and uf the cnmmunity in
g~neral, particularly with regard to visibility, scale and overall
10160 z · zy, s~
F. 3'hat all I)r(~l)~('(I slrtl(.'tllr('R. ~'q~:il)m('~l nt)~l m:~l~'ri:~l ,~h:~ll h,~
readily a¢¢e~,~ible f(~r fire :m~l l,)li~:~, pr~)l,ecti~m.
EXHIBIT 5
§ 100-264. Matte,~ to I)e considered.
In making soch determination, considcrntion ~lmll nl~o he ~iveo.
amnng other thin~.
A. The ch~rnc~r of the exi~lio~
u~es in the district nnd the pecolior mfiL~bilily or such district
for the I~ation of any or soch permitted os~.
R. The conservation of property valoes and the encoura~meot of
the m~t appropria~ u~ of land.
C. The effect that the I~ation of the prol~l o~ and lhe I~ation
that entranc~ and exik~ may have o~o the creation or ondoe
incre~e of vehicular traffic congestion oo public str~k~,
highways or sidewalks ~ ~ore lhe public safety.
D. The availability of adeqoa~ and l)roper poblic or priva{e
wa~r supply and facilities for the treatment, removal or
di~harge of ~wage, refu~ or other effloent (whether liql!id,
~lid, g~us or otherwise) that may I~ cno~t or cresol by
or a~ a r~ult of the
Whether the ose or the materials incidental thereto or
produced thereby may give orr obnoxious ga.~es, ~xtors, smoke
or
F. Whether the u~ will cause distorbing emissions of electrical
discharges, dust, light, vibration or noi.~.
G. Whether the operation in pllr~oaoc~, of the o~e will caose
ondue in~rference with the ordcrly eojoymenl by the puhllc of
parking or of r~reational facilities, if existing or if prolxs~l
by the ~wn or by other compe~nt ~vernulent~tl
I!. The nec~ity for hitominous ~orf:tc(wl Sl):lce fi,' pt~rpeses of
off-str~t parking of vehicles incideo~l Io the osc ond whether
such apace is re~)nably adequa~ and approlo'iale and can
fi~rnish~ by the owner of the plot ~oght t. 1)~, o~(~l within ,o'
a(tiacent ~ the ph)t whereio ~l~e o~, shall I., h~':tted.
§ 100-264 SOUTIIOIA)
Whether a hnznrd In life. limb or property becnn~e ,f fire.
flocsl, erosion or p~nic m~y he cren~d hy rectum of or ~ n
result of the useor by the structur~ b~ be n~ed therefor or by
the inacc~ibility of the pro~rty or ~lructure~ ther~n for the
convenient entry m.I o~r~tion of fire ~ml other emergency
apparatus or by the undue concentrnti~m or ~q~eulhln~e or
~r~ns u~n such plot.
J. Whether the n~e or file ~trnctnre~ lo be u~(,d H,,ref, r will
cnn~e ~n overcrowdin~ of I~nd or unlltl¢ concentrntioo of
K. Whether the plot ares i5 mlfficim~[, nlqU'Ol,'inte and
for the use m,I the re~onnbly nnticipnl~d ~rntion and
expansion thermf.
L. Whether the use ~ t~ ol~rn~l i~ nru'e~)nnl~ly nenr t~ n
church, seh~d, theist, recreationnl ~rea or other plnc~
public ~ssembly.
M. Whether the si~ of the pro.ed tree i~ pnrtleulnrly
for such use.
N. Whether ndequ~tte bnffer yards and ~creeninR' e:m :mci will he
provide] ~ protect ~djneent prol~rlie~ nnd Im,I u~(,s frm;I
~ible detrimen~l impnels of fl;e prol~ed
O. Whether ~dequa~ provision enu nod will be mnde fi,' l.he
collection ~nd (lis~l of s~rmwnler rmmff, ~ewn~, rehme
and other liquid, ~lid or ff~)u~ w~ which the pr~)l~)~ed
will ffenerab.
F Whether the nnturnl ch~r~cteri~tlc~ of the ~ile nre ~ueh IllnL
the pro~sed use may I~ iotr(~luced there withont nndue
disturbance or disruption of impnrtant n~b.'al fenlure~,
system~ or processes and wiUmnt ri~k ()~ pollution h~
~onn(Iwn~r and surface wa~r~ ~)n m.I off the
FAVORS
RPORATED
October 22, 1991
Marie Ongioni
2818 Front St.
Greenport, NY
11944
Reference: 100' Monopole for Cutchogue, NY
EEI Job No. CSON¥257
Dear Ms. Ongioni:
In response to your inquiry regarding the anticipated failure mode
of the structure on the above referenced project, I would like to
offer the following comments:
1) Failure of a steel monopole structure is defined as
being that point at which the induced stresses exceed the
yield strength of the material. At this point,
deflections will be induced in the structure which will
no longer be recoverable once the load has been removed.
2) The induced loads must be sustained for a long enough
period in order that the structure has time to respond
to the load without its removal. This particular
structure would have to exhibit deflections at the top
in excess of 5' (requiring sustained winds over 110 MPH).
3) Sustained wind loads of nearly 150 MPH applied over
the entire structure would be required to induce
structure yielding if the two 8' diameter microwave
dishes were not installed.
4) The supported antennas are most likely not capable
of enduring winds in excess of 120 MPH and when failed
will offer a smaller drag area.
5) When yielding does occur, it allows the structure to
continue to deflect under the induced loading with no
increase in load being required.
6) As this structure leans over from the induced loads,
it presents a markedly reduced exposure area for the
development of wind induced forces. This would result
in the lowering of the applied forces and, therefore, the
ENGINEERED ENDEAVORS, INC.
8500 Station Street * Suite 240 , Mentor, Ohio 44060
Telephone: (216) 974-6060 * 'felefox: (216) 974-9258
100' Monopole - Cutohogue, NY
· ~I ~ob No. CBONY257
reduction of stresses and a halting of structure
movement.
7) In the event of structure failure, the resulting
failure mode will be that the structure will lean and,
upon the removal of the applied loads, will not return
to a vertical position. Wind induced loads could not
conceivably bring the structure to the ground.
8) In Power Structures, Inc.'s 20 years of experience
in the tapered tubular steel structure business, they
have never experienced nor been made aware of any such
structure failing under wind induced loadings.
9) The design and loading assumptions which are used for
the analysis of these structures is conservative in
nature and would, therefore, make any such structure
failure highly improbable.
I hope that these comments answer any questions which you might
have relative to the anticipated performance of this structure
type. However, I will be most happy to answer any other specific
questions which you may have.
Sincerely,
TimOthy J. Goodln~, P.E.
President
TJG/kg
cc: Marta Panasiuk, NYNEX
Sam Ajaeb, NYNEX
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
S.E.O,.R.A.
TYPE II ACTION DECLARATION
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
October 24, 1991
Appeal No. 4058
Project/Applicants:
County Tax Map No.
Location of Project:
Nynex'Mobile Communication
1000- 96-i-19.1
21855 County Road 48, Cutchogue
Relief Requested/Jurisdiction Before This Board in this Project:
Monopole radio tower and equipment building. Side and
rear yard setbacks.
This Notice is issued pursuant to Part 617 of the
implementing regulations pertaining to Article 8 of the N.Y.S.
Environmental Quality Review Act of the Environmental
Conservation Law and Local Law 944-4 of the Town of Southold.
An Environmental Assessment (Short) Form has been submitted
with the subject application indicating that no significant
adverse environmental effects are likely to occur should be
project be implemented as planned.
It is determined that this Board's area of jurisdiction
concerning setback, area or lot-line variances determines this
application to fall under the established list of Type II
Actions. Pursuant to Section 617.2jj, this Department is
excluded as an involved agency.
This determination shall not, however, affect any other
agency's interest as an involved agency under SEQRA 617.2jj.
For further
Board of Appeals,
{516) 765-1809.
information, please contact the Office of the
Town Hall, Main Road, Southold, NY 11971 at
tm
October 16, 1991
TO WHOM IT MAY CONCERN
Please be advised that I am the owner of the property
located at 21855 County Road 48, Cutchogue, New York designated on
the Suffolk County Tax Map as 1000-96-1-19.
I have leased a portion of those premises to NYNEX for
construction of a communications building and monopole for cellular
telephone transmissions.
I have additionally authorized and hereby consent to the
processing of applications before both the Zoning Board of Appeals
and the Planning Board with regard to their utilization of a
portion of my property for the aforementioned use.
I have been advised that the Zoning Board of Appeals
seeks consent for the construction of the monopole from the
property owners within the "fall down" area of the monopole. I
hereby consent to the said construction and waive consideration of
any health or safety concerns as I do not believe any are presented
by the construction.
Very truly yours,
ARTHUR JUNGE, INC.
PAGE /8 - Appl. No.~4058~and
4062
NYNEX. MOBILE COMMUN AlxC,~iq~NS/ARTHUR V. JUNGE, INC.
He a~ring Transcript of October 24, 1991
The Hearing opened at 7:52 p.m.
The Chairman read the legal notice for the ~.~cord and application
before receiving testimony.
CHAIRMAN: We are opening both hearings up in concert of each other.
I have a copy of the site plan, several maps, most of which are most re-
cently dated in front of us indicating the exact placement of these
two structures which are to the rear of the existing and I will refer
to it as a commercial building which houses sevebal uses on County Road
48 , approximately two parcels east of the landfill and the rear of
which abuts the landfill belonging to the Town of Southold. I have a
copy of the Suffolk County Tax Map indicating this and surrounding
properties in the area. Who would like to be heard? Ms. Ongioni.
MEMBER DINIZIO: At this time I would like to state that I work for
a company that may compete with your business or perhaps even be a
partner so as not to compromise the Board's decision, I am going to
abstain and leave the room.
MS. ONGIONI: Good evening Chairperson Goehringer and Board members.
I'm Marie Ongioni with offices at 218 Front Street in Greenport. I
represent NYNEX Communication in this application for approval of the
variance application before the Board for the sideyard setback and also
the rearyard setback. In addition, we are before the Board for a
determination as to the requirement of this being categorized as a
Special Exception as permitted in the Code or if the project would
be exempt from the Special Exception because it qualifies as a
telephone exchange. If it does qualify as a public utility structure
and it has the public utility licensing from New York State and all
of that has been submitted to the Board, it is our contention that
this is, in addition to a' publi~' utility structure;it is a telephone
exchange and as such it is a permitted use in the L~ district, rather
than permitted as a Special Exception. I have a representative from
NYNEX who will address the Board as to the definition of the telephone
exchange in the industry and the fact, in his opinion, this does indeed
qualify as a telephone exchange. If the Board concludes that it is
a telephone exchange then it will be a permitted use as Special
Exception rule would not be needed. Otherwise, in the alternative,
I would argue to the Board that it qualifies as a Special Exception and
should be given that status. Before I turn over the presentation to
Mr. Sam Ajaeb of NYNEX I have a memorandum which I would like to
submit to the Board. I'm not going to review the memo in detail with
you, I'm submitting it for the record. It outlines the nature of the
variances that are being requested. It covers the legal case law that
supports the granting of this variance and also, it briefly outlines
the distinction between telephone exchange and Special Exception.
CHAIRMAN: Thank you.
Page 9 Appl. Nos. 4058 and 4062
NYNEX MOBILE COMMUNICATIONS/ARTHUR V. JUNGE,
Hearing Transcript of October 24, 1991
INC.
MS. ONGIONI: Does the Board have any questions of me at this time?
CHAIRMAN: Well, we ask the same question when Mobile One came before
uB in Mattituck. I don't mean to be ignorant concerning this but
I asked the question at that time and I believe Mr. Smith was repre-
senting Mobile One, what is the different functionsof the two companies
and I don't know if you can answer that question. My question is
basically, are you both in competition with each other, is there
any unanimity between the two of you.
MS. ONGIONI: I think Mr. Ajaeb Would be the proper person to answer
that. Mr. Ajaeb of NYNEX.
CHAIRMAN: How do you do sir.
MR. AJAEB: Sam Ajaeb, Manager Real Estate NYNEX Mobile. Chairman,
to answer your question. At the time of divesture, it was intended
by the Justice Department and the FCC to allow Jthe ~Oblic the
choice of a telephone company in a non-telephone company referred to
as a non-wi~e }~'neito p~6~}de cellular service. NYNEX is the wire
line telephone company. Metro One, they are now known as Cellular ONe,
is the non-wire line. There are two choices. We are in the same
business, two different companies.
CHAIRMAN: So in other words, Metro One would be using NYNEX wires.
MR. AJAEB: New YOrk Telephone, yes. In other words, New YOrk and
also long distance carriers, possibly AT & T, Sprint or whatever.
CHAIRMAN: That answers my question. Thank you.
MR. AJAEB: I just wanted to give a brief overview. I think the
Board has an understanding of who we are. We are t~e cellular
subsidiary of NYNEX. New YOrk Telephone is the major subsidiary of
NYNEX. What we intend to do here is we are expanding our cellular
network to eastern Long Island. This would be a cellular base station,
one of about 130 that are in operation now in the metropolitan area,
approximately 30 of these base stations are in operation now on Long
Island. They consist of a 12 x 26 building with grade storing radio
equipment and 100' monolithic t~o~er. The monolithic to~e~annot be climbed,
it will withstand winds in excess of 150 miles per hour which we have
substantiated by the manufacturer. If we have to get to the top we
use a cart. We require 200 amps of service, no other utility. There
is no water. We use batteries for backup. The only utility requires
telephone and electric power. The question of Exchange if I can and
briefly in layma~s terms, and if you require more details we do have
with us. But with the base station is we have a central station
or computer in Garden City, Long Islandthat monitors the signal for
Page 10 - Appl. Nos. 4058 and 4062
NYNEX MOBILE COMMUNICATIONS/ARTHUR V. JUNGE,
Hearing Transcript of October 24, 1991
INC.
MR. AJAEB: continued
our subscribers. This station here, when someone is driving in the
area of Cutchogue, as soon as the signal from the proposed station
would be stronger than the signal from the station that the automobile
is in at that time, this call will then be automatically be switched
by our computer and processed to this base station. This base station
then picks up the call and processes the call so the immediate area
of Cutchogue I can now saysomewhere in the area of three to five miles
or possibly eight miles, The processing of their call would be done
by this base station in Cutchogue. The building would be alarmed,
there would be a fire deterrent system in there especially designed
so we would not have any problem with vandalism. If there are any
other questions I would be glad to answer them.
CHAIRMAN: What does the top of the antenna look like.
MR. AJAEB: The top of the antenna is 12' equilateral triangle. Its
12' and 40" high. There would be two whip antennas that are 10' above
that, one below.
CHAIRMAN: Is there one around here we could look at.
MR. AJAEB: I believe there is.
could look at.
We have a number of them here you
CHAIRMAN: There is one over at Grumann Aircraft in Calverton. Is
that a NYNEX or is that a Metro One?
MR. AJAEB: That is not a NYNEX. I can give you the dimensions to gi~e
you an idea. Itts 36" at the base, 18" at the top with the equilateral
triangle at the top. It is designed that way for two reasons, one,
it cannot be climbed, we use an electric cart&for thE. wind resistance
for the structure. I can provide the Board with some locations if you
care to loOk at some.
CHAIRMAN: We would like to look at the closest one around here, if we could.
MEMBER VILLA: You said the range is five to eight miles.
MR. AJAEB: Depending upon the terrain. Somewhere in that area.
MEMBER VILLA:
miles.
That would mean you have another within five radius
MR. AJAEB: Yes, we have stations proposed in Greenport and Shelter
Island. If the Board wishes we have some computer runs.
Page 1t Appl. Nos. 4058 and 4062
NYNEX MOBILE COMMUNICATIONS/ARTHUR V. JUNGE,
Hearing Transcript of October 24, 1991
INC.
MEMBER VILLA: My concern is how many of these are we going to
be looking at all together?
MR. AJAEB: I don't think you will anymore from NYNEX Mobile in
Cutchogue. The only reason we would have to Put more in would be
for volume or capacity and we don't anticipate. We would like
to see it but it is not anticipated that we would require anymore
monopoles in Cutchogue. I can pretty well substantiate that sir,
MEMBER VILLA: The thing is are you going to need these every eight
miles.
MR. AJAEB: I believe this would be out only...I halve to verify
that if we have anymore in Southold. I'm not completely familiar
with the bounderies of Southold but Long Island and especially that
it is flat, the volume or capacity isn't required so I doubt if
there will be more. We can reply to that.
CHAIRMAN: What is the approximate cost of this project?
MR. AJAEB: The cost, are you talking construction costs. The
building is a quality building that cost about $40,000. The monopole
is something like $60,000 and then we have a foundation , we have
soil tests done and the foundation is predicated on the soil. The
big expense to NYNEX is the radio equipment2and that's hundreds of
thousands of dollars. I might mention too that we do monitor this
from Garden City seven days a week, 24 hours a day and though it is
unmanned, by monitoring i~hich is mandated by the FCC, we guarantee
that we stay within our range and we can be sure that there will be
no interference with anyone else, any other means of communications.
I will also offer at this time for any public or municipal use, if
the police require or ambulance squad, we will allow them to use it.
We will also take as a condition we have these antennas solely for NYNEX
use, we do not rent out tower space to anyone.
CHAIRMAN: Thank you.
LINDA FLETCHER: May I ask a question. I just wondered do people
who now have cellular phones are not able to use then, hear with them,
is that correct. They cannot use them, if they have them on in the car.
MR. AJAEB: That is correct. It is very spotty. We have one in the
company vehicle, very spotty. There is some service but it is very poor.
MS. ONGIONI: I'd like to address the Board on one additional point.
You requested an illustration of the fall down area of the pole which
we have submitted. You also requested the consent of the adjacent
property owners to that fall down area. I've submitted to the Board
Page 12 Appl. Nos. 4058 and 4062
NYNEX MOBILE COMMUNICATIONS/ARTHUR V.
Hearing Tra script of October 24, 1991
JUNGE, INC.
MS. ONGIONI: continued
the consent of ARthur Junge who is the owner of the site, the
lessor to NYNEX. I also have the consent of Joseph Schoenstein
who is an adjacent property owner. I have met with the town
attorney and it was brought up to the Town Board on Tuesday and I
understand that they are going to be acting on it at its next meeting.
However, I do question the appropriateness of the request for the
consent of the neighboring property owners.
CHAIRMAN: Do you want me to answer that now? Marie, this started,
there is nothing we do that is mysterious but this started with
wind generating towers. Mr. Miller in Laurel had the first wind
gnenerating tower in the Town of Southold and of course it dominoed
throughout the process. We have had people who have put up all sorts
of towers for all sorts of things and what we more or less wanted
them to do is put them in the center of their property and basically,
their own fall down area. In this particular case, because you
are limited in reference to the size of the piece of property, that
is basically the reason why we ask the question, impose that before
the hearing because we wanted you to start working on it because
we knew you had at least two or three people that you had to talk to,
one of which is six people, that's the Town Board so that was basically
the reason.
MS. ONGIONI: I have a letter which I would like to submit regarding
the issue of consent and also the issue of whether those property
owners would be restricting the use of their property. I do not
believe that it is even legal, constitutional to make that type of
request. In that regard I have a submission I would like to make but
I only have one copy. This is the letter and this Mr. Schoenstein's
consent. You have Mr. Junge's consent. In practicality and I have
attached as Exhibit 6 to the memo submitted earlier, a report prepared
by an expert in the field which indicates that it is virutally impossible
for this monopole to fall down. So the like!~ood of that happening
is minimal at the most. That is Exhibit 6 on the memo. Does the
Board have any other questions. We have an application pending before
the Planning Board, the site plan we'll do. The site which they
refer to is the same site plan that was submitted to this Board
earlier this week. I think it is dated October 18 1991 showing the
fall down area. Thank you. '
CHAIRMAN: Is there anyone else who would like to speak in favor of
this application, anybody like to speak against it? My only question
of the engineer that might be present isis there any difficulty in
possibly noise or any type of filtering devices that would be required
of this particular unit. The problem with cablevision, the problem
with any communication that would be near this particular tower.
Pa~e 13 - Appl. Nos. 4058 and 4062
NYNEX MOBILE COMMUNICATIONS/ARTHUR V. JUNGE, INC.
Hearing Transcript of October 24, 1991
PHIL DDRANTE: My name is Phil DQrante. I work for NYNEX Mobile
also and I'm a radio frequency engineer. We operate 880 to 894
megahertz which is solely channel frequency the FCC has allocated
to us for cellular business. No one else operates in those fre-
quencies, just us. You can be rest assured that there will be no
interference to any other type of broadcasting station or tv or
what have you in the area.
CHAIRMAN:
running or
discomfort.
Is there any draw from the building at all with blowers
anything of that nature which would cause anybody a
PHIL DURANTE: The building that we use is a fire block building,
it is virtually soundproof.
CHAIRMAN: The system that either heats or air conditions that is
compressor system on the exterior of the building.
a
PHIL DURANTE: It is on the exterior of the building.
CHAIRMAN: IT wouldn't be
that would come out of an
next to a house?
anymore than a normal compressor noise
air conditioning compressor that was placed
PHIL DURANTE: That is c~mect~
CHAIRMAN: We thank you very much sir. Any other further questions?
MEMBER VILLA: I'm just looking at your
engineering report and it alludes to the
microwave dishes were not installed. Is
diameter microwave dishes?
Exhibit 6 here which is the
fact that the two 8' diameter
there going to be two 8'
PHIL DURANTE: I saw this for the first time. We're not microwave
and we don't intend to use microwave. There are no microwave dishes.
I believe the intent of that was that if you put microwave dishes that
it increases wind loading factor on the tower. We are not, I repeat,
not microwave and we are not going to put any microwave dishes on.
CHAIRMAN: Can we strike that from the agreement? I will initial it.
PHIL DURANTE: I imagine just determine that if there were microwave
dishes it affects the wind loading factor.
Page 14 - Appl. Nos. 4058 and 4062
NYNEX MOBILE COMMUNICATIONS/ARTHUR V. JUNGE, INC.
Hearing Transcript of October 24, 1991
LINDA KOWALSKI, BOARD ASST: You're referring to Item #3.
PHIL DURANTE: Yes. In checking with our real estate people our closest
monopole is in Valley Stream, Long Island. However, I think if you want to
shorten the trip Rayndex has one in this area which is substantially similiar.
CHAIRMAN: That is the one I was referring to since I work in the Brookhaven
area.
PHIL DURANTE: I don't want to give them a plug.
CHAIRMAN: Let me just ask you a quick question before you sit down. When
you say it is spotty at this particular time where would you be drawing
from at this time? Would you be drawing from a Connecticut tower at'this time
or are drawing from one on the south shore.
PHIL DURANTE: That is one of the problems we have. Again I can give you in
layma~s terms and our engineer would know more details. Our subscribers are
getting service or what we refer to as roaming service from SNET and what
happens if you are a subscriber roaming charges are more expensive and our
subscribers are disappointed that they have to pay the roaming charges. The
other thing, Our FCC license requires us at certain times to provide service
along the area that we are licensed. Also, the fact that we are a public utility,
the Public Service Commission has issued the PCA, their complaints that go to
the Commission also saying that I subscribe to NYNEX why should I have to pay
roaming charges. So there are a number of factors. Naturally when we were
building our system we had to logically do the core site before we came to
eastern Long Island.
CHAIRMAN: Anything else. No. Bob~ Not hearing any further questions I make
a motion closing the hearing and reserving decision until l~.ter and we are
expecting a determination from the Planning Board and a determination from
the Town Board through the attorney. Although we are closing the hearing we
are waiting for those two decisions. So there will no decision on this
particular application until around the 20th of November and if for any reason
it is required for us to reopen the hearing, we will reopen it to take that
information and then close it back again. The decision on this particular
hearing will then be held up until early December. That's when we will be
making a determination. We thank you all from NYNEX for coming tonight.
It's been a pleasure meeting you all.
ALL IN FAVOR. AYE.
NOTICE OF HEARINGS
NOTICE 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, NY 11971, on
THURSDAY, OCTOBER 24,
1991, commencing at the times
specified below:
7:30 p.m. AppL No. 4060-
ANTHONY C. MEISEL.
Variance to the Zoning
dinance, Article III, Section
100-30A.3 and Article XXIV,
Section 100-244, for permission
to construct open deck addition
(to existing dwelling) with an in- I
sufficient frontyard setback..[
The lot area is nonconforming
in this R-40 Low-Dens
Residential. 1275 Fanning RoanS, i
New Suffolk, NY; County Tax
Map D strict 1000, Section 117,
Block 4, Lot 30.
7:33 p.m. Appl. No. 4059-,
DOROTHY F. CAREY.
Variance to the Zoning Or-.
dinance, Article III, Secfioni
I00-32 for permission to con-
~troct proposed addition and
Jeck with insufficient frontyard
~etbacks. The subject parcel is
<nown as Lot 7 on the Map of
2dgemere Park, is substandard
n size, and is located in the R-40
~one District. Location of Pro-
perty: Corner of Edgemere
~venue and McDonald's Cross-
ng, Laurel, NY; County Tax
dap No. 1000-128-6-20.
7:35 p.m. Applications of
~IYNEX MOBILE COM-
r MV NICATOI~I~ARTHUR V,~
UNGE, ~ concerning./
remises loc~l in.the Lighh
Industrial (LI) Zone District
is known as 21855 County Road
48, Cutchogue' NY; County TaX
Map No. 1000-96-1-19.1.
f (A) Appl. no. 4058. Va~
I to the Zoning Ordinance, Arti-
/ cl~ X. IV, Section 100-142 for per-
[ mms~on to construct monopole
] radio tower and acce_ss~.r.y /
[ ~quipment-stomge building with
I insufficient side and rear ya~
L....~.etbacks.
(B) Appl. No. 4062. Special
Exception to the Zoning Or-
dinance, Article XIV, Section
100-14lB(I) for permission to
establish public utility use and
construct monopole radio tower
and accessory equipment-
storage building.
7 45 p.m. Appl. No. 406b
EDWARD T. ROUSE. Variance
to the Zoning Ordinance, Arti-
cle XXVIII, Section 100-281, ,
and Article IliA, Section,.
I00-30A.3., Bulk Schedule,
approval of insufficient lot area
and width of two parcels, each
with a preexisting single-family
dwelling. Location of Property:
Corner of Sterling Place and
Champlin Place, Greenport,
NY; Lot Nos. 60, 61 and 62 on
the Map of John G. Champlin
filed in the Suffolk County
Clerk's Office as Map No. 337;
County Tax Map Parcel No.
1000-34-3-28.
7:50 p.m. Appl. No. 4028-
RICHARD AND LISA
OLIVERI. (Amended) Variance
to the Zoning Ordinance, Arti-
cle XXIII, Sect/on 100-239.4 for
permission to locate new dwell-
ing, inclusive of deck and steps
areas, with a setback at less than
75 feet from the landward edge
oftheffeshwater wetland. Loca- i
tion of Property: Westerly side !
of Crescent Avenue, Fishersc,
Island, NY; County Tax
No. 1000-006-06-20.5, contain-
ing 2.5 acres.
The Board of Appeals will at
said time and place hear any and
all persons or representatives
desiring to be heard in each of .I
the above matters. Written corn- ~
ments may also be submitted
prior to the conclusion of the
subject hearing. Each hearing
will not start before the times
designated. For more informa- ]
tion, please call 765-1809.
Dated: October 14 1991
BY ORDER OF THE
SOUTHOLD TOWN
BOARD OF APPEALS
GERARD P. GOEHRINGER
CHAIRMANi
By: Linda Kowals~
1X-10/17/91(50) [
(JC)LJN'IYOF SUFg(
STATI! Og NEW ss:
Pniricia Wood,' being duly sworn, says that she is thc
Editor, oF THE LONG ISLAND TRAVELER-WATCHMAN,
n public newspaper printed at Soulhold, in Suffolk County;
nnd il~nl the nolice of which the annexed is a printed copy,
h ~ been p ~) abed in said I_ong Island Trnvelur-Wulchmnn
once each week fro'. ..................... (, .... wct'.ks
successively, commencing on the . /,'7 ~
tiny ct'. October
~9 91
Io heft)re me this ,, ........... ,/ '7 '~ tiny of
October 91
Nolary Public
BARBARA A. SCHNEIDER
NOTARY PUBLIC, St:'te el New York
No. 4~00846
QualiIied in Suffolk Cotjnty~
Com,oission Expires
NOTICE OF HEARINGS
NOTICE IS HEREBY GIVEN.
pursuant to Section 267 of the Town
Law and thc Code of the Town of
Southold, the following matters will
be held for public hearings before the
SOUTIIOLD TOWN BOARD OF
APPEALS at the Southold Town
Hall, 53095 Main Road, Southold,
NY 11971. on TliURSDAY. OCTO-
_B~R 24. 1991. commencing at the
times specified below:
(1) 7:30 p.m. AppL No. 4060 --
ANTHONY C. MEISEL Variance to
the Zoning Ordinance, A~ticle III,
Section 100-30A.3 and Article XXIV,
Section 100-244, for permission to
construct open deck addition (to
existing dwelling) with an insufficient
30.
McD0nald'~ Crossing, Laurel, NY:
AONS/AR~[IOR ~. JUNGE, 1NC.~
and is known a~ 21855 C~nty R~d
48, Cut~oguc, NY; Coumy Tax Map
No. 1~-9~1-19.1. ~
~ (A) A~l. No. 4058. Vafi~ceto~
/ ~e ~mng Orth~, AMclc XIV,
( Sconst~ctmonopoinradioto:t~: )
62 on ~e Map o[ John G. ~ampl~
(5) 7:50 p.m. Appl. No. t028
CIIA~MAN
STATE OF NEW YORK}
}ss:
COUNTY OF SUFFOLK)
o, M..I,uok,,n
~ald County, being duly ~vorn, .ay~ that he/she Is Principal
Clerk of THE SUFFOLK TIMES, a Weekly Newspaper,
publIshed et Mettltuok, In the Town of Southeld, County of
Suffolk and State of l~w York, .nd that the Notice of which
the annexed Is a ~inted copy, ~ been rngularly published in
said Newspaper once each week for / weeks
successively, commencing on the /7 day of
fE ?/
Principal Clerk
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
GEP~kRD P. GOEHRINGER
CHAIRM3~N
By Linda Kowalski
i/
N'
?i, AP OF P,z,.c'PEFL ~ '~
f'I, AP .OF P2.OPE~'TY
~ d,.k _",' _...
:'">'~u~' './: JUNGE,
P 269 28~?--~_b___7.J~ NYNEX
RECEIPT FOR CERTIFIED MAIL
NO INSURANCE COVEr:~GE PROVIDED
NOT FOR INTERNATIONAL MAIL
(See Reverse)
Joe. Schoenstein
Streetar~(~ Leeward Dr.
P O, S[a e amd ZIP Code
~outhold, N. Y.
Postage S
Cer1'fied Fee
Special Delivery Fee
Return Rece,pt show~ng
Date amd
TOTAL
50UTHOLD
~of
CATIONS CO.
p of Southold
tein
1971
NOTICE
TO
ADJACENT
PROPERTY OWNER
;WEN NOTICE:
the undersigned to petition the Board of Appeals of the Town of Southold
:~:l~t J~t ~:,5~3eA ~ ~:1~ m J~ k x (~ [circle choice]
2. That the property which is the subject of the Petition is located adjacent to your property and is des-
cribed as follows: A building complex with commercial and/or business enterprises.
3. That the property which is the subject of such Petition is located in the following zoning district:
Light Industrial (L.I.)
4. That by such Petition, the undersigned will request the following relief: a variance from the
real and side yard set-backs.
5. That the provisions of the Southold Town Zoning Code applicable to the relief sought by the under-
signed are Article XIV Section 100-142
[ ] Section 280-A, New York Town Law for approval of access over r~§ht(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. Southold, New York and you may then and there
examine the same during regular office hours. (516) 765-1809.
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.
Dated: September 6, 1991 ~,.a~ ~'~'~'./~
LesseeBY Petitione~/ 1~/.~¢1' A~
~gxq'qallles: ~NEX_Communications Co
Post Office Address ~
218 Front Street, P. O. Box 562
Oreenport, New York 11944
NAME
PROOF OF MAILING OF NOTICF
ATTACH CERTIFIED MAIL RECEIPTS
ADDRESS
STATE OF NEW YORK )
COUNTY OF SUFFOLK)
Janet Boyle , residing at 535 Second St., Greenport, N. Y.
, being duly sworn, deposes and says that on the 12th day
of September , 19 91 , 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 Greenport, N. Y.
(certified) (registered) mail.
Sworn to before me this 12th
day of/q Seotember A , 1/~ 1~.
Notary Public
; that said Notices were mailed to each of said persons by
JANE~YLE - ~// --
CARMELA L BORRELU
Notmy Public. State of New Yo~
No. 4526699
Qualified In Suffolk County
Gommission Ex~ire8 January 31, 1119~
(This side does not have to be completed on form transmitted to adjoining
property owners.)
Copies of legal notice for the October 24, 1991 hearings were
mailed to the following 10/15/91
Mr. Anthony C. Meisel
227 Park Avenue
Hoboken, NJ 07030
Samuels & Steelman Architects
25235 Main Road
Cutchogue, NY 11935
Mr. Edward T. Rouse
715 First Street
Greenport, NY 11944
Stephen L. Ham III, Esq.
45 Hampton Road
Southampton, NY 11968
Stephen B. Latham, Esq.
33 West Second Street
P.O. Box 398
Riverhead, NY 11901
(Attorney for R. Pyle)
Pamela K. Phillips, Esq.
Leboeuf Lamb Leiby & Macrae
520 Madison Avenue 28th FLoor
New York, NY 10022
Marie D. Ongioni, Esq.
218 Front Street
P.O. Box 562
Greenport, NY 11944
(Re: NYNEX Mobile)
JUDITH T. TERRY
I'OWN CLERK
REGISTRAR OF VITAL STATISTICS
OFFICE OF THE TOWN CLERK
TOWN OF SOUTHOLD
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
TELEPHONE
(516) 765-180!
TO:
FROM:
RE:
DATED:
SOUTHOLD TOWN ZONING BOARD OF APPEALS
JUDITH T. TERRY, SOUTHOLD TOWN CLERK
ZONING APPEAL NO. 4058, NYNEX MOBILE COMMUNICATIONS COMPANY
SEPTEMBER 16, 1991
Transmitted is application for variance submitted by Marie Ongioni, on behalf of
NYNEX Mobile Communication Company, together with Southold Town Building
Department Notice of Disapproval, Notice to Adjacent Property Owners, Short
Environmental Assessment Form, Southold Town Building Department Certificate
of Occupancy, Map of property of Arthur V. Junge, Inc., Diagram showing materials
to be used, Application for Building Permit to Southold Town Building Department,
Proposed Site Plan and Details, Site Layout and Building Foundation, Monopole
Foundation and Details, Grounding Layout and details, Boring Logs and Miscellaneous
Details.
MARIE ONGIONI
ATTORNEY AT LAW
218 FRONT STREET, GREENPORT, NEW YORK 11944
{516) 477-2048
FAX 1516) 477-8919
September 11, 1991
Gerard P. Goehringer, Chairman
Zoning Board of Appeals
Southold Town Hall
53095 Main Street
Southold, New York 11971
Re: NYNEX Mobile Communications Company
Application for a Variance Set-Back
Requirement, Article XIV, Sec. 100-142
Dear Mr. Goehringer:
Enclosed herewith please find my clients application for a
variance as captioned above.
Also enclosed are the following documents:
1. Copies of the Notice to Adjoining Property Owner (3 with
certified mail receipts attached.
2. A completed short environmental assessment form.
3. Copies of the two current certificates of occupancy issued
for this property.
4. Four copies of the survey showing the existing and
proposed structures.
5. One copy of a construction plan for similar structures
(building and monopole).
6. My check for ~.00 to cover the filing fee.
For your information I have filed an application for site plan
approval with the Planning Board simultaneously with the filing of
this application.
Very truly yours,
M~R~E ONGION~
MO/jb
Enclosures
FORM NO. 4
TOWN OF SOUTHOLD
BUILDING DEPARTMENT
Office of the Building Inspector
Town Hall
Southold, N.Y.
CERTIFICATE OF OCCUPANCY
No Z17295 Date SEPT. 13r 1988
THIS CERTIFIES that the building ELECTRIC SHOP
Location of Property 22355 CTY RD. #48
House No. Street
County Tax Map No. 1000 Section 096 Block 01
Subdivision XX Filed Map No. XX
CUTCHOGUE
Hamlet
Lot 19.1
Lot No. XX
conforms substantially to the Application for Building Permit heretofore
filed in this office dated FEB. 7{ 1987 pursuant to which
Building Permit No. 16755Z dated MAY 27, 1988
was issued, and conforms to all of the requirements of the applicable
provisions of the law. The occupancy for which this certificate is
issued is ELECTRIC SHOP AS APPLIED FOR.
The certificate is issued to ARTHUR V. JUNGE
(owner,
of the aforesaid building.
SUFFOLK COUNTY DEPARTMENT OF HEALTH APPROVAL N/A
UNDERWRITERS CERTIFICATE NO.
PLUMBERS CERTIFICATION DATED
N026184 AUG. 5r 1988
N/A
Building Inspector
Rev. 1/81
FORM NO. 4
TOWN OF SOUTHOLD
BUILDING DEPARTMENT
Office of the Building Inspector
Town Hall
Southold, N.Y.
CERTIFICATE OF OCCUPANCY
No Z-18981 Date APRIL 23~ 1990
THIS CERTIFIES that the buildin~ ALTERATION
Location of Property 21~55C COUNTY ROAD #48 CUTCHOGUE~ N.Y.
House No. Street Hamlet
County Tax Map No. 1000 Section 96 Block 01 Lot 19
Subdivision Filed Map No. Lot No.
conforms substantially to the Application for Building Permit heretofore
filed in this office dated DECEMBER 18r 1989 pursuant to which
Building Permit No. i8708-Z dated DECEMBER 28r 1989
was issued, and conforms to all of the requirements of the applicable
provisions of the law. The occupancy for which this certificate is
issued is INSTALL WHOLESALE BAKERY & FOOD PROCESSING FACILITY IN AN
EXISTING LIGHT INDUSTIRAL BUILDING AS APPLIED FOR.
The certificate is issued to LOCAL TALENT INC.
(lessee)
of the aforesaid building.
SUFFOLK COUNTY DEPARTMENT OF HEALTH APPROVAL N/A
UNDERWRITERS CERTIFICATE NO. PENDING - APRIL 16~ 1990
PLUMBERS CERTIFICATION DATED APRIL 18~ 1990-PECONIC PLUMBING & HEATING
Buildin~ Inspector
Rev. 1/81
APPEAL FROM DECISION OF BUILDING INSPECTOR . ~'1 APPEAL NO.
.......
Nome of Appell~t Street o~ Numar
~eenpo~t N. Y.
......................................................................................................................... HEREBY APPEL TO
Municipality State
THE ZONING BOARD OF APPEALS FROM THE DECISION OF THE BUILDING INSPECTOR ON
APPLICATION FOR PERMIT NO ..................................... DATED ....... J...u..]:.y..:....1..9..?.,1. .......................
WHEREBY THE BUILDING INSPECTOR DENIED TO
( )
( )
(X)
Nome of Applicant for permit
of
2000 Corporate Dr. Orangeburg, N. Y. 10962-2624
Street and Number Municipality State
PERMIT TO USE
PERMIT FOR OCCUPANCY
BUILDING PERMIT
LOCATION OF TH£ PROPERTY 21855 County Rd. 48, Cutchogue, N. Y.
....................
District 1000 Section 96 Block 1Lot 19..1 . Arthur
................................................................................. burren~ Owner
Mop No. Lot No. Prior Owner
V. Junge, Inc.
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 XIV Section 100-142
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 Chop. 62 Cons. Lows
Art. 16 Sec. 280A Subsection 3
)
4. PREVIOUS APPEAL A previous appeal ~/~'~ 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
( ) request for a variance
and was made in Appeal No ................................. Dated ......................................................................
)
)
REASON FOR APPEAL
A Variance to Section 280A Subsection 3
A Variance to the Zoning Ordinance 100-142
,s requested forthe reasonthot the proposed structure and its location do not
meet the side and rear yard set-back requirements and variances are
required for both.
Form ZBI
(Continue on other side)
REASON FOR APPEALc~ ~ ¥ i .~ ~ .~ ~
Continued
1. STRICT APPLICATION OF THE~ORDINANCE would produce practical difficulties or unneces-
sary HARDSHIP be~ the sz~e has a building and parking area already in
existence and- p~a~~¢the requested building and monopole to
comply with the set-back requirements is either impossible because of
existing structures or would require destruction of an existing pre-
viously approved site plan. Additionally, the owner has entered into
a lease agreement for this particular location for the placement of
the building and monopole.
2. The hardship createdis UNIQUE and isnotshared by all properties alike in the immediate
vicinity ofthis property and in this use district because of a pre-existing structure and
the small amount of area required to fulfill the applicant's needs.
Additionally, the requested structure is unique in that it is the only
method of transmitting communications for a cellular mobile communica-
tions system. The increased usage of cellular telephones by the public
requires the installation of proportionately spaced radio antennas to
fulfill a public utilities obligation to respond to the needs and
demands of the public at large.
3. The Variance would observe the spirit of the Ordinance and WOULD NOT CHANGE THE
CHARACTER OF THE DISTRICT because the structure is a permitted use in L.I.
district; the site is surrounded by commercial and/or agricultural
uses and will not interfere with or be aesthetically incompatable with
those uses.
STATE OF NEW YORK )
) ss ....(
COUNTY OF SUFFOLK) ;~; .................................
,o
.............................................. day of .............. ..'....?) ................. 19
Notary Public
tOWN OF SOUTHOLD, NEW YOR~
APPEAL FROM DECISION OF BUILDING INSPECTOR
TO THE ZONING BOARD OF APPEALS, TOWN OF SOUTHOLD, N. Y.
1, (~lgx.....~!~]~...~J.O.~!JJ~..g. 0J~J~NIgA~I.0~. ....... of ....g/.g..~,~:..DJ~g,~g~.~.,..~.~.g.,~...2.~.~..~.R..O.~..T...~%REET
Name of Appellant Street and Number
................... .G.~..e..e..n..p..o...~..L. ........................................................... .~..:....~..: .......... HEREBY APPEAL TO
Municipality State
THE ZONING BOARD OF APPEALS FROM THE DECISION OF THE BUILDING INSPECTOR ON
APPLICATION FOR PERMIT NO ..................................... DATED Jul~ 1991
WHEREBY THE BUILDING INSPECTOR DENIED TO
( )
( )
(X)
Name of Applicant for permit
of 2 ,o...o..o.....C..o..F. La...L..e.... ..............
Street and Number Municipality State
PERMIT TO USE
PERMIT FOR OCCUPANCY
BUILDING PERMIT
1. LOCATION OF THE PROPERTY ...~...g~.~Z..~.%..~Z...~.~.t...~.:...~.: ..........
Street /Hamlet / Use District on Zoning Map
~j~?j~m.!~?..~.!~..~.?]~....~m.m.~m~brrent O~ner Arthur V. Junge, Inc.
Map No. Lot No. Prior Owner
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 XIV Section 100-142
3. TYPE OF APPEAL Appeal is mode herewith (or (please check appropriate box)
X) A VARIANCE to the Zoning Ordinance or Zoning Mop
A VARIANCE due to lack of access (State of New York Town Law Chap. 62 Cons. Lows
Art. 16 Sec, 280A Subsection 3
)
4. PREVIOUS APPEAL A previous appeal (~-~) (has not) been made with respect to this decision
of the Building inspector or with respect to this property.
Such ~ppeal was ( ) request for a special permit
( ) request for a variance
and was made in Appeal No ................................. Dated ......................................................................
)
)
~s requested for the reason that
meet the side and rear yard
~equired for both.
REASON FOR APPEAL
A Variance to Section 280A Subsection 3
A Variance to the Zoning Ordinance 100-142
the proposed structure and its location
set-back
requirements and
do not
variances are
Foirn ZB1
(Continue on other side)
REASON FOR APPEAL Continued
1. STRICT APPLICATION OF THE ORDINANCE would produce practicaldifficultiesorunneces-
sory HARDSHiP because the site has a building and parking area already in
existence and placement of the requested building and monopole to
comply with the set-back requirements is either impossible because of
existing structures or would require destruction of an existing pre-
viously approved site plan. Additionally, the owner has entered into
a lease agreement for this particular location for the placement of
the building and monopole.
2 The hardship createdis UNIQUE andisnotshared by all properties alike in the immediate
vicinity of this property and in this use district because of a pre-existing structure and
the small amount of area required to fulfill the applicant's needs.
Additionally, the requested structure is unique in that it is the only
method of transmitting communications for a cellular mobile communica-
tions system. The increased usage of cellular telephones by the public
requires the installation of proportionately spaced radio antennas to
fulfill a public utilities obligation to respond to the needs and
demands of the public at large.
3 The Variance would observe the spirit of the Ordinance and WOULD NOT CHANGE THE
CHARACTER OF THE DISTRICT because the structure is a permitted use in L.I.
district; the site is surrounded by commercial and/or agricultural
uses and will not interfere with or be aesthetically incomparable with
those uses.
STATE OF NEW YORK )
COUNTY OF SUFFOLK)
Sworn to this .............................................. doy of ...................
Notary Public
iture
CARMELA L, BORRELU
O~ll~d In Suffolk County
~ommi~lon J January 31,199~
BOARD OF APPEALS. TOWN OF SOUTHOLD
In the Matter or the Petition of
NYNEX MOBILE COMMUNICATIONS CO.
the Board of Appeals of Ihe Town of Soothold
TO:
Nathan Harris and Wife
Box 462
Cutchogue, N. Y. 11935
NOTICE
TO
ADJACENT
PROPERTY OWNER
YOU ARE flEREBY GIVEN NOTICE:
1.1hat it is the intention of the undersigned to petition Ihe Board of Appeals of the fown of Southold
to request a {Variance) (flp~alxE~:l~lj~q~J~:5~l:bakl~oiaJcxi~:3~:~la:~ {circle choice]
2. That the propert,/ which is the subjecl of the Petition is located adjacent to your property and is des-
cribed as follows: A buildin~ complex with commercial and/or business enterprises.
3. Thai the property which is tire subject of such Petition is located in the following zoning district:
Lisht Industzial (L.I:)
4. Tint bysucl~ Petition, the undersigned will request the following relief: a variance from the
real and side yard set-backs.
5. ~-hat the provisions of tile Soutl~old '1own Zoning Code ,~pplicable to the relief sought by the under-
signed are ~ticle XIV ~ction 100-142
[ ] Section 280-A, New York Town Law fo~ approval of access over r~ght(s)-of-way.
6. That witi6n five da,/s from ti)e date hereof, a written Petition requesting the relief specified above will
be filed in the Southold Town Clerk's Office at Main Road. Southold, New York and you may then and there
examine the same during regular office hours. (516) 7~5-~809.
7. That before the relief sought may be granted, a public Irearing must be held on the matter by the
Board of Appeals; that a notice of such hearing must be published al leasl five days prior to the date of such
hearing in the Suffolk Times and in the Long Island Traveler-Mat/truck Watchman, newspapers published in the
Town of Southold and designated for the publication of such notices; that you or your representative have/he
right to appear and be heard at such hearing.
Dated: September 6, 1991
~' Names: NYNEX Communications Co
Posl Office Address c/o Marie Ongioni, Esq.
218 Front Street, P. O. Box 562
Greenport, New York 11944
.PROOF OF MAILINC~ OF NOTI(~F
ATTACH CERTIFIED ,MAIL RECEIPTS
ADDRESS
P 269 285 59~YNEX
RECEIPT FOR CERTIFIED MAIL
NO ~NSURANCE COVERAGE PROVIDED
NO? FOR INTERNATIONAL MAIL
(See Reverse)
Sentto Nathan Harris
Street and No
Box 462
P O., State and ZIP Code
Postage C~tczL~G~
Certified Fee
Special Delivery Fee
Return Receipt showmg
STATE OF NEW YORK )
COUNTY OF SUFFOLK)
Janet Boyle , residing at 535 Second Street, Greenport,
New York , being duly sworn, deposes and says that on the 12thday
of September , 19 91 , 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 thc addresses set opposite Ihe names of said persons are the addresses of said persons as shown on
the current assessment roll of the Town of Southold; that said Nntices were mailed at the United States Post Of-
rice at Greenport, N. ¥' ;thalsaid Notices were mailed to each of said persons by
(certified) (registered) mail.
Sworn to before me this 1 2
day of~eptem~ber /7719 91
Notary Public
¢.AI~$LA L IOmm. U
(This side does not have to be completed on form transmitted to adjoining
property owners.)
t-'~ J (~) COUNTY OF SUFFOLK I,o,,~,_SO~T~OLO J
__Jz"J ~,,~? '~ ~ReaJ Properly Tax Service ~""'~1