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Home My WebLink About3908 APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. 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 OF APPEALS Appl. NO. 3908 Application of ROBERT OCHSENREITER and EDWARD LENCESKI. Variance for reversal of a building permit to construct a one-family dwelling. Property location: 565 Bayer Road, Mattituck, NY; County Tax Map No. 1000, Section 139, Block 3, Lot 14. At a Meeting of the Southold Town Zoning Board of Appeals held on May 15, 1990, the following action was taken: WHEREAS, public hearings were held on February 1, 1990, March 29, 1990 and April 19, 1990 in the Matter of the Appli- cation filed under No. 3908; WHEREAS, at said hearings all those who desired to be heard were heard and their testimony recorded; and WHEREAS, the Board Members have carefully considered all %~stimony and documentation submitted concerning this application; and WHEREAS, the Board Members have personally viewed and are familiar with the premises in question, its present and previous zoning classifications, and the surrounding areas; and Page 2 - Appl. No. 3906 Application of Ochsenreiter & Lenceski Property Owner: Inland Homes, Inc. ZBA Decision Rendered May 15, 1990 WHEREAS, the Board made the Following Findings of Fact: JURISDICTION OF THE BOARD OF APPEALS 1. One of the first issues raised in this matter is whether or not this Board has jurisdiction based upon the timing of the filing of this application for a reversal of a building permit issued by the building inspector under Permit No. 18~55 on August 8, 1989 and/or concerning construction commenced under said permit approximately five to six months late (above ground construction). 2. Some of the past applications considered and decided by this Board have included requests for a reversal (or otherwise related to an improper building permit or improper construction related under a building permit) based upon written determinations or action of a Building Inspector, including but not limited to determinations under: (a) A building permit issued by the inspector which were issued months before and were still pending during the processing of a review of this Board, and that either did not involve construction or improvements under said building permit or did involve construction or improvements under said permit, and as much as a year from the date of issuance of the building permit (Article XXVIII, Section 100-281H authorizes work to be "commenced within twelve months after the date of issuance."); (b) the guise of a building permit and which construction was built (within a year from the issuance date of the permit), and which was built "in error" under the zon~g code provisions and was reviewed by the Board of Appeals for consideration of the nonconform- ance under the zoning code; (c) A building permit issued and late issued a stop work notification by the building inspector to suspend all building activities, pending a final determination (after review) by the Board of Appeals; (d) A determination, requirement, order, or decision made by the building inspector (in addition to other reviews conferred by law) - (Reference: Article XXVII, Section 100-271 - Powers and Duties of the Board of Appeals). Page 3 - App1. No. 3906 Application of Ochsenreiter & Lenceski 3. The following time periods are submitted for the record concerning the application for building permit under review, and activities related thereto: (a) Application filed August 2, 1989,(issued on August 8, 198~ for the construction of a 26' x 40' deep dwelling (envelope) with sideyards at 14' and 10' with handwritten notation "...as per Building Zone Ordinance 1966 Section 307, sideyards" (reverse side, page two). (b) Building Permit No. 18355Z issued August 8, 1989 concerns premises referred to as "565 Bayer Road, Mattituck, New York, County Tax Map No. 1000, Section 139, Block 3, Lot 14," owned by Richard Garcia, who later sold the land as a vacant plot on October 2, 1989 to Inland Homes (see Deed at Liber 10950 page 172). (c) on or about August 30, 1989 excavation started and on August 31, 1989, forms for a foundation were placed. (d) by letter dated October 18, 1989, an attorney for neighbors residing in the immediate vicinity notified the Southold Town Attorney's Office of the circumstances of the subject land as a merged parcel, and questioned the validity of the vacant land as a separate buildable parcel for a new dwelling; (e) shortly after this letter was sent to the Town Attorney, the media was made aware through the local newspapers published in the Township that a review was being made by the Town Attorney's Office as to the validity of the subject building permit and the vacant land conditional Certificate of Occupancy also issued during 1989; (f) On December 11, 1989, the Town Attorney replied by letter indicating the results of his review, opinionating that the Code does not show a clear legislative intent by the Town Board, although final interpretation rests with the Board of Appeals both under the Town Code and Town Law. At no time did an interpretation request be made through the Board of Appeals by any person or representative; and the Town Attorney's written response dated December 11, 1989 Was not furnished to the Board of Appeals (until January 19, 1990 - the time of the filing of this application under Appl. No. 3908). Jurisdiction concerning Page 4 - Appl. No. 3906 Application of Ochsenreiter & Lenceski ZBA Decision Rendered May 15, 1990 interpretations is with the Board of Appeals (see Article XXVII, Section 100-271D of the Zoning Code of Southold Town). (g) It is understood that during the first week in January, 1990 the foundation was ~repa~ed & on January 8, 1990, the foundation backfilled. (h) The next day (January 9, 1990) certified-mail notices were sent to the adjacent property owners and to the owner of this parcel (Inland Homes, Inc.) and his attorney, of notifica- tion and intent to file this Petition to the Board of Appeals; (i) On January 15, 1990, deck framing was started; (j) On January 19, 1990 the Petition and accompanying papers were filed with the Southold Town Clerk and Board of Appeals; (k) On January 23, 1990 a written memorandum was delivered to the Building Inspector requesting that a "stay be issued concerning the construction" until this Board of Appeals' application has been decided upon and further requesting his presence at a hearing of the Board to be held February 1, 1990 at 8:15 p.m. (together with delivery of copies of documents pertinent to the file); (1) On January 26, 1990 the Building Inspector responded to the Board of Appeals' memorandum and suggested that the Board, at this point, "get in ~uch with the Town Attorney's Assistant to be brought up-to-date on events which have taken place to this point," and confirmed that a representative from the Building Department will be present at the Board's February 1, 1990 hearing; (m) On February 1, 1990 the Building Inspector was personally served with copies of the Notice of Petition with Exhibits filed with and under consideration by the Board of Appeals; (n) On February 1, 1990 the first of three hearings were held by the Appeals and Zoning Board, at which time the question of jurisdiction of the Board of Appeals was discussed at length between the attorney for the property owner, the Board of Appeals members, and the applicant(s). The hearing was recessed to another date in order to consult with legal counsel. Before continuing with the other two hearings, it was deemed to be appropriately within the jurisdiction of the Board of Appeals; that the application was timely made, having been filed within 15 to 20 days of the construction of the foundation, filed approximately 20 days after the above-ground construction was commenced, and filed within the period of time that the subject build- ing permit was pending, all of which are not unreasonable time periods based on past precedents and practices of this Board. Page 5 - Appl. No. 3908 Application of Ochsenreiter & Lenceski ZBA Decision Rendered May 15, 1990 REQUESTS UNDER Z.B.A. APPLICATION 4. By application No. 3908 filed January 19, 1990, the follow- ing requests are under consideration: (a) Reversal of determination of building inspector in granting Permit No. 18355 for the reason that the property upon which the new dwelling is to be constructed is not a buildable lot and has not been held ia single and separate ownership since April 9, 1957 as required by Article XXIV, Section 100-281A(7), etc. (b) Reversal of determination of building inspector in granting Permit No. 18355 for the reason that the property does not conform to Article IIIA, Section 100-30A(3) and Bulk Schedule of the Zoning Code as to the minimum requirements for lot area, width and depth; (c) Reversal of determination of building inspector in granting Permit No. 18355 for the reason that the property in ques- tion does not conform to the Bulk Schedule requirements in this A-40 Zone District and does not comply with the requirements of Article XXIV, Section 100-244 of the Zoning Code as applies to nonconforming lots legally in existence as of the date of that section (adopted on or about February 15, 1989); (d) Reversal of Vacant Land conditional Certificate of Occupancy dated November 28, 1988 issued to Leonard F. and Ave Maria Spano (~Z17543) for the subject premises described as "505 Bayer Road, Mattituck, NY, County Tax Map ~1000-139-3-36, Map of Mattituck Heights Lot 36). GENERAL HISTORY 1957 THROUGH 1989 5. On July 24, 1935 and prior to the enactment of zoning in Southold Town, the Map of Mattituck Heights was filed with the Suffolk County Clerk. The subject parcel, referred to as Lot ~36, shown on this 1932 Map as a 50' wide by 150' deep lot. Page 6 - Appl. No. 3908 Application of Ochsenreiter & Lenceski ZBA Decision Rendered May 15, 1990 GENERAL HISTORY (continued) 6. On April 23, 1957 the Southold Town Zoning Code and Zoning Maps were adopted, and from that point in time up until November 1971, the subject premises: (a) was located in. the A-Residential/Agricultural Zone District, requiring a minimum lot size of 12,500 sq. ft. per lot; and (b) was included in the "Excepted List of Subdivisions" which excepted certain subdivisions from the minimum lot size requirements (Map of Mattituck Heights of 1932 included); 7. During 1971 the zoning code and zoning maps were amended, and lots located in the A~-Agricultural/Residential Zone District were required to meet a minimum of 40,000 (instead of 12,500) sq. ft. for construction of a new dwelling. Also in 1971, the "Excepted List of Subdivisions" (Article I, Section 100-12) was modified, deletinq the subiect Map of Mattituck Heiqhts, and, including but not limited to, adding others. It is noted that many other subdivisions preexisting of the zoning code which were also not town approved were not added to the "Excepted List" (examples are: Peconic Bay Properties Inc.; Reydon Shores of 1936; Founders Estates of 1927, etc.). 8. In March 1983 the minimum lot size requirements was increased from 40,000 to 80,000 sq. ft. per lot, and again the "Excepted List of Subdivisions" at Article I, Section 100-12 was modified, and again the Map of Mattituck Heights was not included. 9. During 1989, the Zoning Code and Zoning Maps were amended, changing the zoning of the subject parcel from "A" (80,000) to "R-40" (40,000 sq. ft. minimum). There was no change at this time in the "Excepted List of Subdivisions" at Section 100-12; the Map of Mattituck Heights and other similar subdivisions (filed prior to zoning/1957). 10. At no time during the period from November 1971 to June 26, 1989 was there filed any record to show an intent to reseparate the subject merged parcels. The record is clear that the merger of the property (35&36)for this 18-year period remained unchanged. Page 7 - Appl. No. 3908 Application of Ochsenreiter & Lenceski ZBA Decision Rendered May 15, 1990 PRIOR ZONING APPEALS RECORD 10. There is no record of any prior application to the Southold Town Board of Appeals concerning a reduction in lot area or width or the set-off of this parcel from the adjoining parcel. 11. The division of any lot of a size 15,000 sq. ft. into two 7,500 sq. ft. lots has required consideration(s) from the Board of Appeals since the adoption of the zoning code and zoning maps in 1957 to the present time (precedents in Town building department records and zoning board of appeals' records). HISTORY OF CHANGES OF OWNERSHIP 1945 - 1989 12. The subject property (referred to as Lot No. 36 on the Map of Mattituck Heights) was acquired by Paul and Helen Bittner by deed at Liber 5867 page 188 on November 19, 1965. The adjoining property (referred to as Lot No. 35) was also acquired by Paul and Helen Bittner on September 5, 1945. (Approximately a year after the second parcel was acquired in common ownership, the Town Board adopted an "Excepted List of Subdivisions" ~nd included Mattituck Heights.) 1~. On April 11, 1972, both Lot Nos. 35 and 36 were conveyed by single deed to Leonard and Ave Spano by deed at Liber 7140 cp 32. On this date, Lot No. 35 remained vacant land; and having been in common ownership together with the adjoining land (No. 36), for a total combined lot area of 15,000 from April 11, 1972 until June 26, 1989. Although the common ownersh±p of the two contiguous Lot Nos. 35 and 36 merged the property into one nonconforming 15,000 sq. ft. lot with an existing one-family dwelling constructed thereon, there was no intent by the town or by the owners of this property during these 18 years to legally divide or set-off ~,500 sq. ft. (50' x 150') for the future construction of another dwelling. All the amendments of the zoning codes are clear that only one dwelling is permitted per legal lot in the A and R~40 Residential Zone District. Page 8 - Appl. No. 3908 Application of Ochsenreiter & Lenceski ZBA Decision Rendered May 15, 1990 CERTIFICATES OF OCCUPANCY OF RECORD 14. Furnished in the record are the following Certificates of Occupancy: (a) Certificate of Occupancy (Pre-C.O.) issued March 1, 1972 by Building Inspector H. Terry certifying that the adjacent "building located at Bayer Road, Mattituck Hts. Lot No. 35 and 36 ...conforms substantially to the requirements for one-family dwelling & housing code built prior to April 1957 ...and conforms to all of the require- ments of the applicable provisions of law ...issued to Mr. and Mrs. Paul Bittner, Owners... House ~505 inspected February 29, 1972 .... " (Lot No. 35 and 36 combined as noted therein totalled 15,000 sq. ft. in lot area). (b) Certificate of Occupancy (vacant land) issued Novem- ber 28, 1989 by Building Inspector V. Lessard concerning House #505 Bayer Road, Mattituck stating the following: "...M/O Mattituck Heights Lot 36 conforms substantially to the applicable provisions of the Zoning Code... premises are located in the 'A' Residential Agricultural Zoned District...YOU ARE HEREBY NOTIFIED that the above referenced lot may be built upon only after the issu- ance of a building permit and compliance with the following requirements ... : (1) That the lot is held in single and separate ownership and has been held so prior to the adoption of any amendments to our Town Zoning Ordinance which may have increased the require- ments for lot width or area, or may have amended front, side ...setback requirements ..., (6) That the Board of Zoning Appeals approval has been obtained .... (Emphasis added) 15. It is also noted for the record that: (a) made reference 505 Bayer Road; the 1972 Pre C.O. was not a vacant land certificate and to the dwelling as existed on both lots (35 & 36) at the total combined area is 15,000 sq. ft. (b) the 1989 Certificats of Occupancy is a vacant land conditional certificate making references to: (1) ~505 Bayer Road, (2) the condition that Board of Appeals approval be obtained, (3) the condition that a search be filed to show that the lot was either a single and separate lot or otherwise, and which search was not furnished as required. Page 9 - Appl. No. 3908 Application of Ochsenreiter & Lenceski Decision Rendered May 15, 1990 BUILDING PERMIT TIME PERIOD FROM AUGUST 1, 1989 TO THE PRESENT 16. There is no other record, to the best of this Board's knowledge, that there ever was any building permit filed or issued for the construction of a new (or second) dwelling on this tract of land (36). 17. The only building permit of record for a new dwelling as issued on August 8, 1989 was granted based upon an incomplete application form concerning premises at "565 Bayer Road." Questions #5, 6, 7, 10, 11, 12, 13, 14 and 15 were left blank; however, sketched was a diagram indicating a proposed building envelope on a 50' x 150' rectangular tract of land with setbacks. LACK OF APPROVAL(S) FROM THE TOWN OF SOUTHOLD FOR THIS PARCEL AS A SET-OFF DIVISION OF LAND 18. NO information has been furnished for the record to show that an application is now pending or was previously made and approved to re-separate the tracts of land referred to as Lot Nos. 35 and 36 on the preexisting (1932) Map of Mattituck Heights to the Southold Town Planning Board; and upon information and belief, no action was taken by the Town Planning Board to approve or other- wise sanction this tract as a 7,500 sq. ft. lot in a grandfather or exemption clause separate and apart from the adjacent merged tract, also a 7,500 sq. ft. tract. 19. No action was taken by the Town Board from 1971 to the present time in the Town Code to approve or authorize an exemption or grandfather clause comcerning this preexisting Map of Mattituck Heights, or Lot No. 35 and 36 as separate tracts of land. BUILDING INSPECTOR - BUILDING PERMIT APPLICATIONS ADMINISTRATION AND ENFORCEMENT 20. Article XXVIII, Section 281 of the Zoning Code clearly provides that "...No building permit shall be issued unless the proposed construction or use is in full conformity with all the provisions of this chapter and the provisions of all other applicable laws, ordinaaces, rules and regulations. Any building permit issued in violation of the provisions of this chapter shall ~e null and void and of no effect without the necessity for any proceedings, revocations or nullification thereof; and any work undertaken or use established Page 10 - Appl. No. 3908 Application of Ochsenreiter & Lenceski Decision Rendered May 15, 1990 pursuant to the issuance of a permit in violation of the provisions of this chapter shall be invalid .... " 21. Article XXVIII, Section 100-281A(7) also provides: "...A. Applications. Every application for a building permit shall contain the following information...: (7) An application for a building permit for construction on a vacant lot which is not on an approved subdivision map shall be accompanied by a certified abstract of title issued by a title insurance company which shall show single and separate ownership of the entire lot prior to April 9, 1957. VARIANCES REQUIRED AT TIME OF ISSUANCE OF PERMIT 22. apparent have not has been Southold In considering many of the facts in this case, it is by this Board that the following areas of the zoning code been appropriately addressed or applied for, and no authority given to any other board, officer or employee of the Town of to waive or grant variances thereunder: (a) (c) (d) (e) (References: Article Schedule, etc.) insufficient lot area (from 40,000 to 7,500 sq. ft. per lot) insufficient lot width (from 150 feet to 50 feet) insufficient lot depth (from 175 feet to 150 feet) insufficient side yard (from 15 feet to 14 feet) insufficient total sideyards (from 25 feet to 24 feet) IIIA- R40 Zone District, and Zoning Code Bulk VALIDITY OF BUILDING PERMIT 23. Pursuant to Article X~fVIII, Section 100-281 of the Zoning Code, the subject building permit was issued in violation of the zoning code, as noted, supra, and the permit must be deemed to be invalid, null, void and of no effect. Page 11 - Appl. No. 3908 Application of Ochsenreiter & Lenceski Decision Rendered May 15, 1990 OTHER CONSIDERATIONS 24. "In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted or maintained, or any building, structure or land is used in violation of this chapter (zoning) or of any other regulations made pursuant thereto, in addition to other remedies provided by law, any appropriate action or proceeding, whether by local process or otherwise, may be instituted or taken to prevent such unlaw~u! erection, construction or reconstruction, alteration ...maintenance or use or to restrain, correct or abate such violation or to pre~ent the occupancy of said building, structure or land or to prevent any illegal act, conduct, business or use in and about such premises." (Reference: Zoning Code Article XXVIII, Section 100-286 - Remedies) (Emphasis added) Z.B.A. DETERMINATION 25. It is the position of this Board that the permit in question is and was not a valid permit since the permit was not issued in conformity with certain provisions of the zoning code (Article XXVIII, Section 100-281) including but not limited to the following areas (see Findings of Fact, supra): (a) Nonconformance concerning several area regulations under the Bulk Schedule (area, width, setbacks); (b) Lack of town approval concerning the re-separation of the northerly one-half from the southerly one-half of the subject land as two separate 7,500 sq. ft. lots (zoning code and subdivision code regulations); (c) Lack of evidence concerning the requirements of the zoning code as to proof of single and separate ownership and/or a deter- mination and/or interpretation by the Board of Appeals, particularly due to the substandards of the property, etc. ACCORDINGLY, on motion by Mr. Dinizio, seconded by Mr. Goeh- ringer, it was RESOLVED, that the Building Permit referred to as #18355 is HEREBY DETERMINED to be INVALID, thereby nullifying and voiding the effects under said permit; and BE IT FURTHER Page 12 - Appl. No. 3908 Application of Ochsenreiter & Lenceski Decision Rendered May 15, 1990 RESOLVED, to GRANT the request under this Application for a REVERSAL of determination by the building inspector in the erroneous issuance of Building Permit No. 18355; and BE IT FURTHER RESOLVED, that prior to issuance or reissuance of any building permit, certificate of occupancy or otherwise, that further application(s) be for!n~lly filed, through normal proce- dures, for consideration by the Board of Appeals, including but not limited to the following areas of the zoning code: (a) insufficient lot area; (b) insufficient lot width; (c) insufficient lot depth; (d) insufficient $ideyard setback at the easterly side; (e) insufficient total :~ideyards; (f) such other and further relief as may be deemed necessary under the zoning code (such as excessive lot coverage, etc.) RECEIVED AND FILED BY THE SOUTHOLD TOWN CLERK DATEQ/,i /% HOUR q:q Town Clerk, Town of Southold ITS MAY 15, 1990 ACTION TOWN OF SOUTHOLD PROPERTY RECORD CARD /'¢- ~ / STREET VILLAGE DIST. SUB. LOT ,,. _,~ ~ , ~ --__ __FORMER OWNER ' -N E"~'~7?At'n / TOTAL DATE REMARKS ,~ AGE BUILDING CONDITI~ ~'~-N ~ NOeL BELOW ABOVE j~FA~ Ac~ Valu~ Per Value Acr~ Tillable 2 Tillable 3 W~land S~mplan~ FRONTAGE ON WA~R ~Br~l~ FRONTAGE ON ROAD ~ t~ A -': ~,, H~s~ Plot DEPTH BULKH~D 'Total ~K I /7 /.:.....G' : I ,. ' ~ ~u,~/4,,, Single Family Residence ,Only 50 0 1~11' ~ APP /1 ~,E~ ~ J*, ~: ~ /Z./ I ~-R , ,,,, ~~ /tl ' ~ f~ ~..,,~ :','Z O~'Pa'" ~, , /O,.q. a~ ~._ for Sin. ,g le Fatuity ~esidences ~',d will abide by t~~. __ . he ~"~ - - ~ - '~ ~' // l I R E C: E I V E D OWN OF SOUTHOLD, NEW YOR jA~Pfl~l~§~OM DECISION OF BUILDING INSPECTOR January 8, 1990 Seu~old Tewn ~ TO THE ZONING BOARD OF APPEALS, TOWN OF SOUTHOLD, N. Y. · Name of Appellant Street and Number TOWN OF SOUTHOLD NEW YORK HEREBY APPEAL TO Municipality State THE ZONING BOARD OF APPEALS FROM THE DECISION OF THE BUILDING INSPECTOR ON APPLICATI(~N FOR PERMIT_NO ........ .r1. B3..5.SZ ................. DATED ...........At~u. st..8,...].qSB ............... Issued WHEREBY THE BUILDING INSPECTOR ~EIg~J~TO ( ) ( ) (xx) INLAND HOMES, INC. Name of Applicant for permit of P.O. Box 117, ~ttituck, New York 11952 Street and Number Municipality State PERMIT TO USE PERMIT FOR OCCUPANCY Vacant Land CmrttF~rmtp 1. LOCATION OF THE PROPERTY ...~..~r...%~.~.~.,..~.~.~.$.~.v.~.k.,...~.~..~k..Z..B~Q ............. Street /Hamlet / U~ District ~ Zoning Map ~.~.s.~.~...?~..?~.~..}.~..~]~.~.~..~..~..~...CurrenL ~ner Inland Homes, Inc. Map No. ~84 E~Zed 7/24/35 Lot No. 36 Prio~ u, ne,~oaa~ ~pa~o INVOLVED 2. PROVISION (S) OF THE ZONING ORDINANCE RiI~E~]I_T~ (Indicate the Article Section, Sub- section and Paragraph of the Zoning Ordinance by number. Do not quote the Ordinance.) Article xxIv Section 100-244 / lOO-~] .100-30A.l-100-30A.4,100-12,100-32 3 TYPE OF APPEAL Appeal is mode herewith for (please check appropriate box) ( ) A VARIANCE to the Zoning Ordinance or Zoning Map ( ) A VARIANCE due to lack of access (State of New York Town Low Chop. 62 Cons. Lows Art. 16 Sec. 280A Subsection 3 (X) Revocation of Buildin~ Permit and Vmrmn~ l'.~na n~r~=~= n~ n~,l.n=.ry Upon InformaJ:ion ~nd Belief , 4. PREVIOUS APPEAL ^prevtous appea~ (~T~3((has not) been mode 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 (XX) To revoke building permit is requested for the reason that Building Permit and Vacant Land Certificate of Occupancy we~-e improperly issued. ls~rrn ZB1 (Continue on other side) R?,SON .FOR, APPEAL Continued jJ~ ,~ , . 1. STRICT APPLICATION OF THE ORDINANCE would produce practical difficulties or unneces- sary HARDSHIP because J~, U .J JHP, SEE SCHEDULE A .weT 2, The hardship created is UNIQUE and is not shared by all properties alike in the immediate vicinity of this property and in this use district because SEE SCHEDULE A 3 The Variance would observe tl~e spirit of the Ordinance and WOULD NOT CHANGE THE CHARACTER OF THE DISTRICT because SEE SCHEDULE A STATE OF NEW YORK ) / So thold Town Board of Appeals MAIN ROAD - STATE ROAD 25 P.O. BOX 1179 SOUTHOLD, L.I., N.Y. 11971 TELE~ONE (516) 76~18~ FAX No. (516) 765-1823 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWlCKI JAMES DINIZIO, JR. TO WHOM IT MAY CONCERN: Enclosed herewith as confirmation of the time, date and place of the public hearing concerning your 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 times allotted in the attached Legal Notice. Please feel free to call our office prior to the hearing date if you have questions or wish to update your file. Yours very truly, dff GERARD P. GOEHRINGER CHAIRMAN APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONI$, JR. SERGE DOYEN, JR. JOSEPH H. SAWlCKI JAMES DINIZIO, JR. ( Southold Town Board o£ Appeals MAIN ROAD - STATE ROAD 25 P.O. BOX 1179 SOUTHOLD, L.I., N.Y. 11971 TELEPHONE (516} 765-1809 FAX NO. (516) 765-1823 NOTICE OF HEARINGS NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the following hearings will be held by the SOUTHOLD TOWN BOARD OF APPEALS at a Regular Meeting, at the Southold Town Hall, Main Road, Southold, NY 11971, on THURSDAY, FEBRUARY 1, 1990, at the following times: 7:30 p.m. Appl. No. 3902 - HENRY HUNSTEIN. Variance to the Zoning Ordinance, Article III A, Section 100-30.3, (100-33)', as disapproved, for permission to construct accessory building in frontyard area. Property Location: 90 Kimberly Lane and 135 North Bayview Road, $outhold, County Tax Map No. 1000, Section 70, Block 13, Lot 20.20. Page 2 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of February 1, 1990 7:35 p.m. Appl. No. 3901 - THOMAS ESCHMANN. Variance to the Zoning Ordinance, Article III A, Section 100-30 A.4, (100-33), as disapproved for permission to construct accessory building in the frontyard area and accessory shower in sideyard area. Property Location: 495 Mesrobian Drive, Laurel, County Tax Map No. 1000, Section 145, Block 4, Lot 10. 7:40 p.m. Appl. No. 3905 - ANTHONY J. MERCORELLA. Variance to the Zoning Ordinance, Article XXIII, Section 100-239.4 B, as disapproved, for permission to construct deck addition to dwelling, proposed construction will be less than 75 ft. from ~ the bulkhead. Property Location: 2260 Great Peconic Bay Boulevard, Laurel, County Tax Map No. 1000, Section 145, Block 4, Lot 4. 7:45 p.m. Appl. No. 3904 - HARRIET SPILMAN. Variance to the Zoning Ordinance, Article XXIII, Section 100-239.4 B, for permission to construct addition to existing dwelling, proposed construction will be less than 75 ft. from the bulkhead. Property Location: 1730 West Creek Avenue, Cutchogue, County Tax Map No. 1000, Section 110, Block 1 Lot 7.3. Page 3 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of February 1, 1990 7:50 p.m. Appl. No. 3900 - GERHARD SCHREMMER. Variance to the Zoning Ordinance, Article XXIV, Section 100-244 B, for permission to construct a one family dwelling, proposed construction will have insufficient front and side yard setbacks, lot has'insufficient width. Property Location 1380 Oak Drive, Southold, County Tax Map'No. 1000, Section 080, Block 02, Lot 001. 7:55 p.m. Appl. No. the Zoning Ordinance, Article XIII, Section 100-132, for permission to construct a building for antique vehicles, ~ proposed construction will have bulk, area and parking regulations and insufficient side yard setback. Property Location: 410 Airway Drive, Mattituck, County Tax Map No. 1000, Section, 123, Block 01, lot 02. 3897 - PARKER J. WICF~qAM. Variance to 8:00 p.m. Appl. No. 3899 - AGNES AND CHERYL PAGNOZZI. Variance to the Zoning Ordinance, Article XXIV, Section 100-244 B, for permission to construct an addition to existing dwelling, proposed construction will have insufficient side yard. Property Location: 1450 Jockey Creek Drive, Southold, County Tax Map No. 1000, Section 70, Block 5, Lot 17. Page 4 - No~ice of Hearings Southold Town Board of Appeals Regular Meeting of February 1, 1990 8:05 p.m. Appl. No. 3898 - PECONIC BAY VINEYARDS. Special Exception to the Zoning Ordinance, Article VII, Section 100-71 B (6), for permission to use existing barn for winery production and storage. Property Location: 32180 Main Road, Cutchogue, County Tax Map No. 1000, Section 103, Block 01, Lot 19.2. 3882 - BIDWELL WINERIES. Special 8:10 p.m. Appl. No. Exception to the Zoning Ordinance, Article III, Section 100-30, for approval of consumer tasting and retail sales from the winery. Property Location: Route 48, Cutchogue, County Tax Map No. 1000, Section 96, Block 4, Lot 4.3. ~ i~ 8:15 p.m. Appl. No. 3908 - ROBERT OCHSENREITER AlqD EDWARD~ LENCESKI. Variance for reversal of building permit to construct a on~ family dwelling. Property Location: 565 Bayer Road, County Tax Map No. 1000, Section 139, Block 3, Lot 14. Page 5 - Notice of Hearings Southold Board of Appeals Regular Meeting of February 1, 1990 8:20 p.m. Appl. No. - ROBERT AND ETHELLE SCFfROEDER. Variance for reversal of building inspector for change of use of land and existing building without obtaining a Certificate of Occupancy. Property Location: 4380 Main Road, East Marion, County Tax Map No. 1000, Section 35, Block 5, Lot 4. 8:25 p.m. Appl. No. 3770 Zoning Ordinance, Article XII, - PORT OF EGYPT. Variance to the Section 100-121C - 122, Section 100-239d, as disapproved for permission to construct Boat Storage Building with insufficient setbacks and excessive lot coverage in this Marine II (M-II) Zoning District. Property Location: Main Road, Southold, County Tax Map No. 1000, Section 056, Block 04, 06, Lot 10.1, 11, 12.2, 3.2, 3.3, 4, 6.1. The Board of Appeals will at said time and place hear any and all persons or representatives desiring to be heard in each of the above matters. Written comments may also be submitted prior to the conclusion of the subject hearing. Each hearing will not start before time allotted. Additional time for your presentation will be available, if needed. For more information, please call 765-1809. Dated January 22, 1990 BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN By Doreen Ferwerda SoOthold Town Board of Appeals Regular Meeting of February 1, 1990 Copies to the following on or about January 24, 1990 Suffolk Times, Inc. L.I. Traveler Watchman Town Clerk Bulletin Board (Main Lobby) ZBA Office Bulletin Board (East Hall) ZBA Bd~Pd Members (with cdpies of files) ZBA Individual Files Mr. H. Hunstein 302 Saville Rd., Mineola, NY 11501 Riverside Homes, as Agent for Thomas Eschmann 1159 W. Main St., P.O.Box 274, Riverhead, NY 11901 Mr. Anthony Mercorella 131 Duxbury Road, Purchase, NY 10~7 Karen Hagen, Esq. for Harriet Spilman Wickham, Wickham, Bressler Main Road, P.O. Box 1424:~ Mattituck, NY 11952 Salvatore DiSalvo as Agent for Gerhard Schremmer 47-39 162nd Street, Flushing, NY 11358 J. Parker Wickham 410 Airway Drive, MattitL~ck, NY 11952 Louise Beck Schnabel for Pagnozzi 1600 Jockey Creek Drive, Southold, NY 11971 Cheryl Pagnozzi 1450 Jockey Creek Drive, Southold, NY 11971 Mr. Ray Blum for Peconic Bay Vineyards Main Road, P.O. Box 709, Cutchogue, NY 11935 Mr. Kerry Bidwell for Bidwell Wineries Route 48, Cutchogue, NY 11935 Daniel Ross, Esq. for Ochsenreiter and Lenceski Wickham, Wickham & Bressler Main Road, P.O. Box 1424, Mattituck, NY 11952 Daniel Ross, Esq. for Robert & Ethelle Schroeder Wickham, Wickham & Bressler Main Road., P.O. Box 1424, Mattituck, NY 11952 Southold Town Board of Appeals Regular Meeting of February 1, 1990 Copies to the following on or about January 24, 1990 Mr. Theodore Traturis for Robert & Ethelle Schro~der 5804 7th Avenue, Brooklyn, NY 11220 Mr. Eraklis'Apodiacas for Robert & Ethelle Schroeder 7122 Ridge Boulevard, Brooklyn, NY 11209 Mr. David Gilli:spie for Robert & Ethelle Schroeder 221 North Road, Greenport, NY 11944 Mr. Merlon Wiggin for Port of Egypt Peconic Associates, i Bootleg Alley, Greenport, NY 11944 Southold Town Bo rd of Appeals APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWlCKI JAMES DINIZIO, JR. February S,E.q.R.X. TYPE II ACTION DECLARATION 1, 1990 Appeal No. 3908 Pr°ject/Applicant~bert 0chenreit~.~ and £dward kenceski County Tax Map No. 1000- 139-3-14 Location of Project: 565 Bayer Road, Mattituck Relief Requested/Jurisdiction Before This Board in this Project: Variance for reversal of building permit to construct one family dwelling. 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 ~44-4 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 goncerning 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 617.2j.j. For further information, please contact the Office of the Board of Appeals, Town Hall, Main Road, Southold, NY 11971 at (516) 765-1809. tr FUDITH T. TERRY TO~ CLERK REGISTRAR OF V~TAL STATISTICS OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 FAX (516) 765-1823 TELEPHONE (516) 765-1801 CORRECTED TRANSMITTAL OF ZONING APPEAL TO: FROM: RE: DATE: SOUTHOLD TOWN ZONING BOARD OF APPEALS JUDITH T. TERRY, SOUTHOLD TOWN CLERK ZONING APPEAL NO. 3908 INLAND HOMES, INC. FEBRUARY 1, 1990 The following is a corrected listing of the attachments that were transmitted to Southold Town Zoning Board of Appeals Office on January 19, 1990 together with Zoning Appeal No. 3908 application of Inland Homes, Inc.: Notification to Adjacent Property Owners; Short Environmental Assessment Form; Zoning Board of Appeals Questionnaire Form; Survey of Property; Deeds; Property Record Cards: Schedule A; Certificate of Occupancy dated 11/28/88; Application for Building Permit dated 8/2/89: Building Permit dated 8/8/89; together with any other attachments relative to this application. A Notice of Disapproval from the Buidling Inspector was not received with this application. Southold Town Clerk JUDITH T. TERRY TOWN CLERK RI~GISTRAR OF VITAL STATISTICS OFFICE OF THE TOWN CLERK TOWN OF SOUTItOLD Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 FAX (516) 765-1823 TELEPHONE (516) 765-1801 CORRECTED TRANSMITTAL OF ZONING APPEAL TO: FROM: RE: DATED: SOUTHOLD TOWN ZONING BOARD OF APPEALS JUDITH T. TERRY SOUTHOLD TOWN CLERK / ZONING APPEAL NO. 3908, INLAND HOMES, INC. FEBRUARY 1, 1990 The following is a corrected listing of the attachments that were transmitted to Southold Town Zoning Board of Appeals Office on January 19, 1990, together with Zoning Appeal No. 3908, application ~ of Inland Homes, Inc. on behalf of Robert J. Ochsenreiter and Edward Lenceski: Notification to Adjacent Property Owners; Short Environmental Assessment Form; Letter Relative to NYS Tidal Wetlands Land Use; Survey of Property; Deeds; Property Record Cards; Schedule A; Certificate of Occupancy dated 3/2/72; Vacant Land Certificate of Occupancy dated 11/28/88; Application for Building Permit dated 8/2/89; Building Permit dated 8/8/89; together with any other attachments relative to this application. A Notice of Disapproval from the Building Inspector was not received with this application. JUDITH T. TERRY To: OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD Southold Town Zoning Board of Appeals P.O. Box 1179 Southold, New York 11971 TELEPHONE (516) 765-1801 From: Judith T. Terry, Southoid Town Clerk Dated: January 19, 1989 \, Transmitted herewith is Zoning Appeal No. 3908 , application of Inland Homes, Inc. for a variance. Also included is: Notification to Adjacent Property Owners; Short Environmental Assessment Form letter relative to NYS Tidal Wetlands Land Use; Notice of Disapproval from the Building Department; survey of property; and any other attachments relative to this application. Judith T. Terry MAILING LIST FOR MARCH 29, 1990 Suffolk Times Traveler-Watchman Clerks Bulletin Board Z.B.A. Bulletin Board Mr. Merlon Wiggin Peconic Associates P.O. Box 672 Greenport, NY 11944 Anthony Tohill, Esq. 12 First Street Riverhead, NY 11901 Mr. Robert Ochsenreiter 600 Bayer Road Mattituck, NY 11952 Mr. Edward Lenceski 500 Bayer Road Mattituck, NY 11952 NOYICE OF HEARINGS NOTICE OF HEREBY GIVEN, pursuant to Section 26? of the Town Law and thc Code of the Town of Southold, the following hearings will be held by the SOUTHOLD TOWN BOARD OF APPEALS at a Regular Meeting, at the Southold Town Hall, Main Road, Southoid, NY 11971, on THURSDAY, FEBRUARY 1, 1990, at the following times: 7:30 p.m. Appl. No. 3902-- HENRY HUNgt'~IN. Variance to the Zoning Ordinance, Arti- cle II! A, Section 100-30.3, (100-33), aa disapproved, for permission to construct ac- cessory building in fmntyard area. Property Location: 90 Kimberly Lane and 135 North Bayview Road, Southold, CoUn- ty Tan Map No. 1000, Section, 70, Block 13, Lot 20.20. 7:35 p.m. AppL No. 3901- THOMAS ESCHMANN. Variance to the Zoning Ordi- nance, Article III A, Section 100-30 A.4, (100-33), aa disap- proved for permission to con- struct accessory building in the frontyard area and accessory shower in sideyard area. Proper- ty Location: 495 Mesrobian Drive, Laurel, County Tax Map No. 1000, Section 145, Block 4, Lot 10. 7:40 p.m. AppL No. 3905-- ANTHONY J. MERCOREL- LA. Variance to the Zoning Or- dinance, Article XXIII, Section' 100-239.4 B, aa disapproved, for permission to construct deck ad- dition to dwelling, proposed construction will be less than 75 ft. from the bulkhead. Proper- ty Location: 2260 Great Peconic Bay Boulevard, Laurel, County Tax Map No. 1000, Section 145, Block 4, Lot 4. 7:45 p.m. AppL No. 3904-- HARRIET SPILMAN. Vari- ance to the Zoning Ordinance, Article XXIll, Section 100-239.4 B, for permission to construct addition to existing dwelling. Proposed construction will be less than 75 ft. from the bulk- head. Property Location: 1730 West Creek Avenue, Cutchogue, County Tax Map No. 1000, Sec- tion I10, Block I Lot 7.3. 7:50 p.m. Appl. No. 3900-- GERHARD SCHREMMER. Variance to the Zoning Ordi- nance, Article XXIV, Section 100-244 B, for permission to construct a one family dwelling, proposed construction will have insufficient front and side yard setbacks, lot has insufficient width. Property Location 1380 Oak Drive, Southold, County 'Fax Map No. 1000, Section 080,' Block 02, Lot 001. 7:55 p.m. Appl. No. 3897-- PARKER J. WICKHAM. Vari- ance to the Zoning Ordinance, Article XilI, Section 100-132, for permission to construct a buildin~ for antique vehicles, propos~.ni construction will have bulk, area and parking regula- tions and insufficient side yard setback. Property Location: 410 Ahnv'ay Drive, Mattituck, Coun- ty Tax Map No. 1000, Section 123, Block 01, Lot 02. 8:00 p.m. AppL No. 3899-- AGNES AND CHERYL PAG- NOZZI. Variance to the Zoning Ordinance, Article XXIV, Sec- tion 100-244 B, for permission to construct an addition to ex- isting dwelling, proposed con- stroction will have insufficient side yard, Property Location: 1450 Jockey Creek Drive;',r Southold, County Tax Map No~ 1000, Section 70, Block 5, Lot 17, . - '8:05 p.m. Appl. N~. 3898-- PECONIC BAY VINEYARDS. Special Exception to the Zon ng Ordinance, Article VII, Section 100-71 B (6} for permission to use existing barn for winery pro- duction and storage. Property Location: 32180 Main Road, Cutchogue, County Tax Map No. 1000, Section 103, Block 01, Lot 19.2. 8:10 p.m. Appl. No. 3882-- BIDWELL WINERIES. Special Exception to the Zoning Ordi- nance, Article III, Section 100-30, for approval of con- sumer tasting and retail sales from the winery. Property Loca- tion: Route 48, Cutchogue~ County ~ Map No. 1000, Sec- tign 96, Block 4, Lot 4.3. 8:15 p.m. Appl. No. 3908-- ROBERT OCHSENREITER. AND EDWARD LENCESKI;" Variance for reversal of building permit to construct a one fami- ly dwelling. Property Location: 565 Bayer Road, Mattituck, County Tax Map No. 1000, Sec- tion 139, Block 3, LOt 14. ~'8.'20 p.m. Appl. ROBERT AND ETHELLE SCHROEDER. Variance for re- versal of building inspector for change of use of land and exist- ing building without obtaining a Certificate of Occupancy. Pro- perty Location: 4380 Main Road, East Marion, County Tax Map No. 1000~ Section ~ k~__B_Block 5, LOt 4. L---8:25 p.m. Appl. No. 3770-- PORT OF EGYPT. Variance to the Zoning Ordinance, Article Xll, Section 100-121C-122, Sec- tion 100-239d, aa disapproved for permission to construct Boat Storage Building with insuffi- cient setbacks and excessive Io6~ coverage in this Marine I1 (M- II) Zoning District. Property Location: Main Road, Southold, County Tax Map No. 1000, Section 056, Block 04, 06, Lot 10.1, I1, 12.2, 3.2, 3.3, 4, 6.1. The Board of Appeals will at said time and place heat any and all persons or representatives siring to be heard in each of the above matters. Written com- ments may also be submitted prior to the conclusion of the subject hearing. Each hearing will not start before time allot- ted. Additional time for' your presentation will be available, if needed. For more information, please call 765-1809. Dated: January 22, 1990 BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN )%'~ By Doreen Ferwerda IX. 1/25/90 (7) COUNTY OF SUFFOLK STATE OF NEW YORK SS: Patricia Wood, being duly sworn, says that she is the Editor, of THE LONG ISLAND TRAVELER-WATCHMAN, a public newspaper printed at Southold, in Suffolk County; and that the notice of which the annexed is a printed copy, has been published in said Long Island Traveler-Watchman once each week for ..................... /. .... weeks successively, commencing on the ......... .'~.. ?..~'. ....... day of...~,,.~ ........ 19 .~.u. Sworn to before me this ....... .~...S-..~-. ........day of 19 Notary Public B~-'.~DAR;~, A. SCHNEIDER NOTARY I ' ~J "e NOTICE OF HEARINGS NOTICE OF HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the following hearings will be held by the SOUTHOLD TOWN BOARD OF APPEALS at a Regular Meeting, at the Southold Town Hall, Main Road, Southold, NY 11971, on THURSDAY, FEBRUARY I, 1990, at the following times: 7:30 p.m. Appl. No. 3902-- HENRY HUNSTEIN. Variance to the Zoning Ordinance, Arti- cle III A, Section 100-30.3, (100-33), as disapproved, for permi~ion to construct ac- ceesory building in frontyard area. Property Location: 90 Kimberly Lane and 135 North Bayview Road, Southold, Coun- ty Tax Map No. 1000, Section 70, Block 13, Lot 20.20. %', 7:35 p.m. AppL No. 3901- THOMAS ESCHMANN. Variance to the Zoning Ordi- nance, Article III A, Section 100-30 A.4, (100-33), as disap- proved for permission to con- struct accessory building in the frontyard aren and accessory shower in sideyard aren. Proper- ty Location: 495 Mesrobian Drive, Laurel, County Tax Map No. 1000, Section 145, Block 4, Lot I0. 7:40 p.m. Appl. No. 3905-- ANTHONY J. MERCOREL- LA. Variance to the Zoning Or- dinance, Article XXIII, Section 100-239.4 B, as disapproved, for permission to construct deck ad- dition to dwelling, proposed construction will be less than 75 ft. from the bulkhead. Proper- ty Location: 2260 Great Peconic Bay Boulevard, Laurel, County Tax Map No. 1000, Section 145/' Block 4, Lot 4. 7:45 p.m. AppL No. 3904-- HARRIET SPILMAN. Vari- ance to the Zoning Ordinance, Article XXIII, Section 100-239.4 B, for permission to construct addition to existing dwelling. Proposed construction will be less than 75 ft. from the bulk- head. Property Location: 1730 West Creek Avenue, Cutchogue, County Tax Map No. 1000, Sec- tion I10, Block I Lot 7.3. 7:50 p.m. Appl. No. 3900~ GERHARD SCHREMMER. Variance to the Zoning Ordi- nance~ Article XXIV, Section 100-244 B, for permission to construct a one family dwelling, proposed construction will have insufficient front and side yard setbacks, lot has insufficient width. Property Location 1380 Oak Drive, Southold, County Tax Map No. 1000, Section 080,~ Block 02, LOt 001. 7:55 p.m. Appl. No. 3897-- PARKER J. WICKHAM. Vari- ance to the Zoning Ordinance, Article XIII, Section 100-132, for permission to construct a building for antique vehicles, proposed construction will have bulk, ama and parking regula- tions and insufficient side yard setback. Property Location: 410 Airway Drive, Mattituck, Coun- ty Tax Map No. 1000, Section 123, Block 01, LOt 02. 8:00 p.m. Appl. No. 3899-- AGNES AND CHERYL PAG- NOZZL Variance to the Zoning Ordinance, Article XXIV, Sec- tion 100-244 B, for permission to construct an addition to ex- isting dwelling, proposed con- struction will have insufficient side yard. Property Location: 1450 Jockey Creek Drive,'. Southold, County Tax Map No.~:' I000, Section 70, Block 5, Lot 17. - 8.'05 p.m. AppL N~. 3898-- PECONIC BAY VINEYARDS. Special Exception to the Zoning Ordinance, Article VII, Section 100-71 B (6) for permission to use existing barn for winery pro- duction and storage. Property Location: 32180 Main Road, Cutchogue~ County Tax Map No. 1000, Section 103, Block 01, Lot 19.2. 8:10 p.m. Appl. No. 3882-- BIDWELL WINERIES. Special Exception to the Zoning Ordi- nance, Article III, Section 100-30, for approval of con- sumer tasting and retail sales from the winery. Property Loca- tion: Route 48, Cutchogue, County Tax Map No. 1000, Sec- tion 96, Block 4, Lot 4.3. / 8:15 p.m. AppL No. ROBERT OCHSENREITER, ~ AND EDWARD LENCESKi:1 Variance for reversal of building ,permit to construct a one fami- ly dwelling. Property Location: 565 Bayer Road, Mattituck, C. ounty Tax Map No. 1000, Sec- / tion 139, Block 3, Lot 14. . / 8:20 p.m. 'Appl~ No.~-'~C ROBERT AND ETHELLE SCHROEDER. Variance for re- versni of building inspector for change of use of land and exist- ing building without obtaining a Certificate of Occupancy. Pro- perry Location: 4380 Main Road, East Marion, County Tax Map No. 1000~ Section 35, Block 5. Lot 4. ~:i~p.m. Appl. No. 377~--"~ PORT OF EGYPT. Variance to the Zoning Ordinance, Article Xll, Section 100-121C-122, Sec- tion 100-239d, as disapproved for permission to construct Boat Storage Build/ng with insuffi- cient setbacks and excessive Iof~ coverage in this Marine II (M- Il) Zoning District. Property Location: Main Road, Southold, County Tax Map No. 1000, Section 036, Block 04, 06, ~=...~t 10.1, 11, 12.2, 3.2, 3.3, 4, 6,L=..-- The Board of Appeals'~iil at said time and place hear any and ali persons or representatives de- siring to be heard in each of the above matters. Written com- ments may also be submitted prior to the conclusion of the subject hearing. Each hearing will not start before time nilot- ted. Additional time for your presentation will be available, if needed. For more information, please call 765-1809. Dated: January 22, 1990 BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN )'"~ By Doreen Ferwerda IX, 1/25/90 (7) COUNTY OF SUFFOLK STATE OF NEW YORK SS: Patricia Wood, being duly sworn, says that she is the Editor, of THE LONG ISLAND TRAVELER-WATCHMAN, a public newspaper printed at Southold, in Suffolk County; and that the notice of which the annexed is a printed copy, has been published in said Long Island Traveler-Watchman once each week for ..................... /. .... weeks successively, commencing on the ......... .~..~..~. ....... ·..~ ........ 19 .? .').. Sworn to before me this ...... . .~...~.'.~-. ........ day of 1 Notary Public B~[R;gARA A. SCHNEIDEJ) NOT2. RY FUF;!.iC, State o~ i4e~, York CONCRETE C~ P. · O. Box 149 rON, NEW YORK 11977 9-15-89 d Homes .... ~AT[ 17 jOB NAME ..... :--- tuck NY 11952 jOB U~CAT,ON B~_ye_r_.._A_v_e_n_ue Lot ~ 394 ' PRICE AMOUNT DE~,CRt FrTION ' Total price for job ~t due for walls $2,4~ O0 Time 09:58 Date 08-30-B9 ~ Opepatot' HWT 08-30-89 Gposs Wt. 17440.1b Tat'e Wt. 12820 lb Net Wt. 4620 lb Net Tons 2.31 tn TOPS ~? FORM 3409 lOPs ~' Fo~M UTHO IN U.S.A. Ticket No. 5827 Scale No. 1 VEHICLE ID CT9037 MATERIAL ID LA ACCOUNT ID C35 CHILTON, ROBERT BOX 56 PECONIC NY 11958 Price / Ton $ 20.00 Net Chat ge $ 46.20 T~ansaction Type - Credit SOUTHOLD LANDFILL CUTCHOGUE, N. Y. Ti~e 09:38 Date 08-30-89 Operator HWT Ti~e In 09:17 Date In 08-30-89 LANDCLEARINS DEBRIS Gross Wt. 17440 lb Tare Wt. 12820 lb Net Wt. 4620 lb Net Tons 2.31 tn APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCO1'r L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1500 TO: FROM: DATE: RE: Victor Lessard, Principal Building Inspector Zoning Board of Appeals April 13, 1990 Z.B.A. Hearing of April 19, 1990 In regarding Inland Homes Appl. No. 3908, it would be greatly~ appreciated if you could attend our next Regular Meeting of the Zoning Board of Appeals on Thursday, April 19, 1990. Attached is a copy of the Notice of Hearings for your information. We have found it very helpful having you attend our previous meetings. WICKHAH, WlCKham & BRESSLER. P.c. February 1, 1990 Zoning Board of Appeals, Southold Town Hall Main Road Southold, N.Y. 11971 Town of Southold Re: In the Matter of the Petition of Robert J. Ochsenreiter and Edward Lenceski Gentlemen: This will confirm that Wickham, Wickham & Bressler, P.C. is withdrawing as counsel with respect to the above referenced application. The applicants will be appearing in support of the application on the beaching date. DCR:vm cc: Mrs. Mary K. Johnson Mr. Howard and Gertrude Jeavons Mr. Walter Armbrust Mr. Richard Garcia and Mrs. Corinne Lessard Garcia Inland Homes, Inc. William Moore, Esq. MATTHEW G. KIERNAN Asst. Town Attorney OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD December 11. 1989 Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 TELEPHONE (516) 765-1939 FAX NO. (516) 765-1823 Daniel C. Ross Wickham, Wickham & Bressler Main Road P.O. Box 1424 Mattituck, NY 11952 RE: Construction on Bayer Road, Mattituck Suffolk County Tax Map #1000-139-3-13 Suffolk County Tax Map g1000-139-3-14 Dear Mr. Ross As a result of your letter of October 17, 1989, I have reviewed the history of this parcel and applicable law. You are correct in pointing out that under section 100-12 of the Town Code the filed map subdivision called "Amended Map of Mattituck Heights," is not listed along with other exempted subdivisions. However, as shown in the Zoning Code of 1966 this subdivision was listed as exempt. Of the nineteen listed subdivisions exempted in 1966 only three are presently listed in section 100-12. What then is the status of the other sixteen subdivisions? I have researched this matter and have determined that as each subdivision was developed the need to exempt same no longer applied, hence, the subdivision was omitted from the section. It is the opinion of this office that the parcels in question are part of a legal and exempt subdivision, and to hold to the contrary would jeopardize every landowner who has not built upon their lots located in. the other sixteen subdivisions. The remaining issue is whether or not a merger occurs when a person owns two or more contiguous parcels which parcels are located in a filed map subdivision and which subdivision is so recognized by the Town. oWickham. Wickham & Bressler December 11. 1989 Page 2 A review of the Code does not show a clear legislative intent by the Town Board that a contiguous parcel owned jointly in a legal and recognized subdivision merger. Absent such a clear direction I would not assume same by implication since the practical ramifications are enormous. It is the opinion of this office that the building permit issued is valid; however, as you know the final interpretation of the Zoning Code rest, both under the Town Law and the Town Code. with the Board of Appeals, JAS:mls cc: Town Board Building Department Very truly y~ours. J i'~ondebare .o~n Attorney WICKHAM. WICKHAM ~ BI~ESSLER. p.c. MAIN ROAD, P.O. BOX I424 NEW YORK 11952 February 1, 1990 Zoning Board of Appeals, Southold Town Hall Main Road Southold, N.Y. 11971 Town of Southold Re: In the Matter of the Petition of Robert J. Ochsenreiter and Edward Lenceski Gentlemen: This will confirm that Wickham, Wickham & Bressler, P.C. is withdrawing as counsel with respect to the above~ referenced application. The applicants will be appearing in support of the application on the hea~ing date. DCR:vm cc: Mrs. Mary K. Johnson Mr. Howard and Gertrude Jeavons Mr. Walter Armbrust Mr. Richard Garcia and Mrs. Corinne Lessard Garcia Inland Homes, Inc. William Moore, Esq. ZONING BOARD OF APPEALS TOI~ OF SOUTHOLD, COUNTY OF SUFFOLK, STATE OF NEW YORK In the Matter of the Petition of ROBERT J. OCHSENREITER and EDWARD LENCESKI Index No. AFFIDAVIT OF SERVICE OF A_N APPEAL F2~ DECISION OF BUILDING INSPECTOR SUFFOLK COUNTY, NEW YORK STATE: MARY ANNE CORWIN b~ing sworn, ~ays: D~ponent is not a party her~in, is owr 18 years of age and r~id~s at 650 Flanders Road, Riverhead, New York 11901 On February l~t,19 90 at ~:~.M..at Southold To~ ~11, ~in Road, Southold, New York deponent se~ed the within~on Southold To~ BulldOg Department defendant t~in ~m~, Appeal from Decision of Bqil4~RInsDector IN~VIDUAL by delivering a tree copy o] each to ~iddcf~ndants pe~onally; dc~nent knew the ~r~n so ~ to ~ the ~on de~fi~ ~ ~id defendant the~in. personally, deponem knew said co~omfion so se~ed to be the co~oration de~ribed in said summons as said defendant and knew said individual aaE eE~ by delivering the~at a fmc copy of each to ' ;~ a ~n of sui~blc a. ~ a~ and di~refion. Said p~mi~s is dcfendant's--a~l place of business~welling place--us~l pla~ of able within the state. by affixing a truc copy of each to the door of said premises, which is defendant's--actual place of business~welling place--usual place of abode --within the state. Deponent was unable, with due diligence to find defendant or a person of suitable age and discrcfion, thereat, having called there MAIUNG TO RESIDENCE USE WIT~ 3 OR 4 Deponent enclosed a copy of same in a postpaid envelope properly addressed to defendant at defendant's last known residence, at "and deposited said envelope in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State. Deponent enclosed a copy of same in a first class postpaid envelope properly addressed to defendant at defendant's actual place of business, at in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State. The envelope bore the legend "Personal and Confidential' and did not indicate on the outside thereof, by return address or otherwise, that the communication was from an attorney or concerned an action against the defendant. oEscm~non [~Malc [~hite Skin [] Black Hair ~'White Hair [] 14-20 Yrs. [] Under 5' [] Under 100 Lbs. i.~ [] Female [] Black Skin [] Brown Hair [] Balding [] 21-35 Yrs. [] 5'0~-5'3" [] 100-130 Lbs. [] Yellow Skin [] Blonde Hair [] Mustache [] 36-50 Yrs. [] 5'4"-5'8" [] 131-160 Lbs. [] Brown Skin [] Gray Hair [] Beard [~51-65 Yrs. ~9~-6~'' [] 161-200 Lbs. [] RedSkin [] RedHair [] Glasses [] Over65Yrs~ [] Over6' [~Over 200 Lbs. Other identifying features: USEIN NYC CIVIL CT. The language required by N YCRR 29(70.2(e), (~ & (h) was set forth on the face of said summons(es). MtUTARV I asked thc person spoken to whether defendant was in active military service of thc United States or of thc State of New York in any capacity sgnv~c£ whatever and received a negative reply. Defendant wore ordinary civilian clothes and no military uniform. The source of my information and thc ] grounds of my belief are thc conversations and observations above narrated. Upon information and belie f I aver that thc recipient is not in military service of New York State or of thc United States as that term is defined in either thc State or in thc Federal statutes. ~wYor~ MAR~kNNE CORWIN / · ,omm~eaimt Exptrel Dec. 8, iii :~ License No ....................................... INSTRUCTIONS: Check appropriate boxes and fill in blanks. Delete inappropriate italicized language and military service allegation if not applicable. APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTT L. HARRIS Supervisor .Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 TO: FROM: DATE: RE: Building Department Zoning Board of Appeals~ May 4, 1990 Certificate of Occupancy In regarding Ochsenreiter/Lenceski (Inland Homes) Appl. No. 3908, we are inquiring about a Certificate of Occupancy which may have been recently issued on this parcel. Please notify ~s if a Certificate of Occupancy has been issued at this time, also if any new information regarding this particular parcel has been added to your file. Thank you for your assistance on this matter. ZBA/df cc: Town Attorney's Office VICTOR LESSARD PRINCIPAL BUILDING INSPECTOR (516) 765-1802 FAX (516) 765-1823 OFFICE OF BUILDING INSPECTOR TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 TO: FROM: SUBJECT: DATED: ZONING BOARD OF APPEALS BUILDING DEPARTMENT CERTIFICATE OF OCCUPANCY MAY 8, 1990 This is in response to your memo dated May 4, 1990 regarding ZBA Appeal ~3908. No Certificate of Occupancy has been issued as of this date. No further new information has been added to this file. Please note an Attorney informed me that Supreme Court has issued a determination within the last month which states that old subdivisions that are mostly developed have a vested right or interest. Suggest you have the Town Attorney check to get first hand determination. VGL:gar cc to: TOWN ATTY APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWICKI JAMES DINiZIO, JR. Southold Town Board of Appeals MAIN RnAD- STAT[=' RnAD 25 E~nUTHOLD, LoI., N.Y. 1'19'7'1 TELEPHONE (516) 765-1809 TO: FROM: DATE: Victor Lessard, Principal~-Building Inspector Zoning Board of Appeals January 31, 1990 We have received your memo dated January 26, 1990, regardin0 Appeal No. 3908, Ochsenreiter/Lenceski (Inland Homes), property location: 565 Bayer Road, Mattituck, Cgunty Tax Map l No. 1000, Section 139, Block 3, Lot 14, Subdivision Mattituck Heights. We have been in touch with the Assistant Town Attorney on this matter and have declined a discussion between the Building Department, acting Town Attorney and the Zoning Board of Appeals. Enclosed you will find a copy of the file for your information. If you require any further information, feel free to contact us. VICTOR LESSARD PRINCIPAL BUILDING INSPECTOR (516) 765-1802 FAX (516) 765-1823 Town Hall, 53095 Main Road P.O. Box 1179 $outhold, New York 11971 OFFICE OF BUILDING INSPECTOR TOWN OF SOUTHOLD TO: ZONING BOARD OF APPI~ALS FROM: BUILDING DEPARTMENT ~_.~ DATE: January 26, 1990 Your memo of January 22, 1990, received January 25, 1990 is a bit confusing in that it doesn*t specify the property in question. Because a request has been made for a copy of the excepted list indicating the Amended Map of Mattituck Heights, I vould have to guess that you are referring to one of the projects going on Bayer Road. At this point, I would strongly suggest that your Board get in touch with the Assistant Town Attorney and be brought up to date on what their office has done with the matter to this point. Again, I am guessing you are referring to the New Dwelling being constructed by Inland Homes. At present, I have no knowledge of any Ochsenreiter/Lenceski. Until all these are made familiar to the building department, and a discussion betveen the Building Department, Board of Appeals, and acting Torn Attorney takes place, this department feels it should do nothing to jeopardize the Tovn's position in this matter. As to your request that a representative from Building Dept. at your February I, 1990 meeting, most certainly their viii be someone there. APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTt L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 TO: FROM: DATE: RE: Building Department Zoning Board of Appeals~~4 May 9, 1990 Certificate of Occupancy We are in receipt of your memo dated May 8, 1990 regarding Appeal No. 3908. Please clarify the second paragraph of this~ memo in respect to the information received by an Attorney. Thank you for your cooperation on this matter. ZBA/df cc: Town Attorney VICTOR LESSARD PRINCIPAL BUILDING INSPECTOR (516) 765-1802 FAX (516) 765-1823 TO: FROM: SUBJECT: OFFICE OF BUILDING INSPECTOR TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 May 9, 1990 ZONING BOARD OF APPEALS BUILDING DEPARTMENT ~ REPLY TO MEMO MAY 9, 1990 REFERENCE APPEAL #3908 Your May 9, 1990 response to my May 8, 1990 response to your May 4, 1990 inquiry on Certificate of Occupancy on your case #3908 was quite clear in my eyes. The second paragraph was information imparted to me in conversation at a function I was attending. I felt it would behoove the Town and your board to check to see if such a ruling existed. I mentioned attorney only in passing be~ cause of credibility to such information. Friends do talk to: friends regardless of their livelihood. This friend is not in- volved in this case what-so-ever. VGL:hkd cc: Town Attorney APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, ,JR. SERGE DOYEN, JR. JOSEPH H. SAWICKI JAMES DINIZIO, JR. Southold Town Board o£ Appeals MAIN ROAD - STATE ROAD 25 P.O. BOX 1179 SOUTHOLD, L.I., N.Y. 11971 TELEPHONE (516) 765-1809 FAX No. (516) 765-1823 TO: FROM: DATE: RE: Victor Lessard, Principal Bu~ding Inspector Zoning Board of Appeal /~ January 23, 1990 Request to attend Regular Meeting on February 1, 1990 On January 22, 1990 at a Special Meeting the following Application 3908, Ochsenreiter/Lenceski (Inland Homes), was set~ up for a public hearing on February 1, 1990 at 8:15 p.m. in the Meeting Hall, Town Hall. The Z.B.A. respectfully request your presence at that hearing with any or all reference regarding the file (excepted list indicating amended map of Mattituck Heights). It is advised that you request the builder to "stay" construction until this matter is decided upon. Thank you for your assistance in this matter. NOTICE OF HEARINoS ~'~ Tovm/ ~U~oM. ~e following bear~ ~0 p.m. Appl. ~o. 3770 ~l' OF EG~ Va~ Mattituck ~ayer Road, --.~139B~- - ' -' available, ~ n~ded For ~ BO~ OF A~ STATE OF NEW YORK) · COUNTY OF SUFFOLK) Patricia Heaney of Mattituek, In said County, being duly sworn, says that he/she is Principal Clerk of THE SUFFOLK TIMES, a Weekly Newspaper, published at Mattituck, in the Town of Southold, County of Suffolk and State of Mew York, and that the Notice of, which the annexed is a printed copy, has been regularly punished in · said Newspaper once each week for 1 weeks successively, commencing on the 22.".~ day of ~--1990 / , / Principal Clerk Swom to befpre me this ~ 860 NOFICE OF HFARING~ NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the following hearings will be held by the SOUTHOLD TOWN BOARD OF APPEALS at a Regular Meeting, at the Southold Town Hall, Main Road, Southold, N.Y. 11971, on . THURSDAY, APRIL 19, 1990, ut the following times: :~ '7:30 p.m. AppL No. 3926--- MURRAY JACOBS. Varianc6 .to the Zoning Ordinance, Arti- cle Ill, Section 100-33, as dis- = approved for permission to con- struct an accessory shed in side .yard, _n_ _ _vc~sory buildings may be located in the mqui~d rear yard. Property Location: 1180 Sage Boulevard, Greenport, County Tax Map No. 1000, Section 53, Block 5, Lot 9. 7:35 p.m. Appl. No. 3927-- MARK AND ELLIE GOR- DON. Variance to the Zoning Ordinance, Article 111, Section 100-33, as disapproved, for per- mission to construct an acces- sory building to tennis court located in front yard, accessories permitted in the rear yard area only. Property Location: Privat~ Road g/, Fords Road, Southold, County ~ax Map No. 1000, Sec- tion 087, Block 01, Lot 18.4. 7:40 p.m. Appl. No. 3928-- SAMUEL AND RACHEL SALZMAN. Variance to the Zoning Ordinance, Article III A, Section 100-30 A.3, as disap- proved, for permission to con- struct addition to an existing dwelling, proposed construction will have insufficient front yard setbacks. Property Location: 65 Old Salt Road and 400 Rochelle Place, Mattituck, County ]hx Map No. 1000, Section 144, Block 5, Lot 22. 7:45 p.m. Appl. No. 3920- A. LIOS. Variance to the Zon- ing Ordinance, Article XXIV, Section 100-244, as disapproved, for permission to construct a deck addition to existing pool, propgsed_construction exceeds permitted lot coverage, and will have insufficient side yard set- backs. Property Location: 310 Linda Road, Mattituck, Coun- ty Tax Map No. 1000, Section 10~, Block ~, Lot 14 7:5op.m 'AppI~' No. 3921~'~' EILEEN VILLANL Va~c~ t~ the Zoning Ordinance, Article XXlll, Section 100-239 B, for permission to construct deck ad- dition to existing one family dwelling, proposed construction will be within 75 ft. of water or wetlands. Property Location: Private Road 925 Wood Lane, Peconic, County Tax Map No.. 1000, Section 086, Block 06, Lot. 10. 7:55 p.m. Appl. No. 3919- THOMAS COLLINS. Variance to the Zoning Ordinance, Arti- cle XX. HI, Section 100-239 4.B, for permission to construct a deck addition to a one family dwelling, proposed construction will be less than 75 ft. from the bulkhead. Property Location: 305 Dawn Drive, East Marion, County Tax Map No. 1000, Sec- tion 35, Block 5, Lot 20. 8:00 p.m. Appl. No. 3930-- JOHN C. PERRONE. Special Exception to the Zoning Ordi- nance, Article X, Section 100-10IR, for permission to oc- cupy and use as a billiard par- lor for commercial recreation. Property Location: Main Road, State Road 25, Mattituck,~ County Tax Map No. 1000, Sec-' tion 122, Block 6, Lot 31. 8:05 p.m. AppL No. 3914- EVA HALLA. Variance to the Zoning Ordinance, Article III A, Section 100-30 A.3, Article XXIV, Section 100-244, Bulk and Parking Area, Article XXIII, Section 100-239.4, build- ing setbacks from water or wet- lands, for permission to con- struct a one family dwelling. Property Location: 55 Glen Court, Cutchogue, County Tax Map No. 1000, Section 083, Block 01, Lot 01. ' 8:10 p.m. AppL No. 3922-~ ROBERT AND THERESA TURNER. Variance t~ the Zon- ing Ordinance, Article 111, Sec- tion 100-30 A.4, Bulk and Park- ing area, for permission to con- . struct an attached swimming "pool to house. Property Loca- tion: 1525 Albo Drive, Laurel, County Tax Map No. 1000, Sec- tion 126, Block 03, Lot 17. 8:15 p.m. AppL No. 3925-- ELSIE PARKIN. Variance to the Zoning Ordinance, Article I11 A, Section 100-30 A.3, Bulk and Parking Regulations in this Division of Land. Property Location: 7575 Skunk Lane, Cutchogue, County Tax Map No. 1000, Section 104, Block 04, 27. :~8:20 p.m. Appl. No. 3908~'~ ,.'ROBERT OCHENREITEI~ AND EDWARD LENCESKI4 Variance for reversal of a bnild-~ lng permit to construct a one~ family dwelling. Property Loca- I ~tion: 565 Bayer Road, Matti-I ~tuck, County Tax Map No. [ ~000, Section 139, Block 3, Lot] The Board of Appeals will at said time and place hear any and all per, ns or representatives de- siring to be heard in each of the above matters. Written com- ments may also be submitted prior to the conclusion of the subject hearing. Each hearing will not start before time allot- ted. Additional time for your presentation will be available, if needed. For more information, please call 765-1809. Dated: April 9, 1990 BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN By Doreen Ferwerda IX., 4/12/90 (80) NOTICE OF HEARINGS suant to Scction 267 of thc Town Law and thc Code of thc Town of Southold, thc following hearings will be beld by the SOUTIIOLD TOWN BOARD OF APPEALS at a Regular Meeting. at thc Southold Town hall, Main Road, Southold. NY 11971, on THURSDAY, APILIL 19. 1990. at the following times: 7:30 p.m. Appl. No., 3926 -- MURRAY JACOBS. Variance to the Zoning Ordinance, AtticJc [[[, Sec- tion 100-33, as disapproved for permission to construct an acces- sory shed in side yard, acccsso~/ buildings may be located in thc quimd rear yard. Property Lecabon: 1180 Sage Roulcvard, Grccnport, County Tax Map No. 1000, Sect/on 53. lllock 5, Lot 9. 7:35 p.m. App[. No. 3927 -- MARK AND El J fit GOPd~ON. Vail. clc I11, Scction 100-33. as disap- anlacccssory building to tennis court lo~ated in front yard, acces- sories pormiucd in thc rear yard arcs only. Propctty Location: Private Road #7, Fords Road, Southrdd, County Tax Map No. 1000, Section 087, BlAck 01, Lot 7:40 p.m. Appl. No. 3928 SAMUEL AND RACIIEL SALZ- MAN. Variance to the Zoning Ordi- nance, Attinl¢ III A, Section 100- 30 A.3, as disapproved, for pcrmissinn to construct addition to an existing dwelling, proposed Location: 65 Old Salt Road and 400 Rechcllc Place, Matfitock, County Tax Map No. 1000, Section 144, Block 5, Lot 22. 7:45 p.m. Appl. No. 3920 -- A. L/OS. Variance lo thc Zoning Ordi- nanc.~, Atticlc XXIV, Sccdon 100- 244, as disapprovcd, for pcnnis- sion to,construct a deck addition to cxisting pool, proposed consmm.' lion exceeds permitted lot cover- aec, and wiB havc insufficient sidc yard setbacks. Property Location: 310 Linde Road, Mattituck, County Tax map No. 1000, Section 106, Block I. Lot 14. 7:50 p.m. Appl. No. 3921 EILEEN VILLANI. Vatianec to the Zoning Ordinance, Article XXIII, Scction 100-239 B. for permission to construct dcck addition to cxist. ing one family dwelling, proposed construction will be within 75 ft. of water or wetlands. Property Location: Private Road 925 Wood Lane, Peconic, County Tax Map No. 1000. Section 086. Block 06, Lot 7:55 p.m. Appl. No. 3919 TIIOMAS COLLINS. Variance to the Zoning Ordinance. Article XXIII. Section 100-239 4. B. for permission to construct a deck addition to a onc family dwelling, proposed constmction will bc less than 75 ft. from the bulkhead. Property Location: 305 Dawn Drive. ,East Marion, County Tax Map No. I000, Section 35. Block 5. LOt 20. 8:00 p.m. AppL No. 3930 -- lion to the Zoning Ordinance, Ar- ticle X, Section 100-10lB, for billiard parlor for commercial recre- ation. Property Location: Main Road. State Road 25, Mattituck, County Tax Map No. 1000. Section 122. Block 6, Lot 31. · 8:05 p.m. AppL No. 3914 EVA IIALLA. Vailanc¢ to thc Zen* lng Ordinance. Article III A, Sac. Ilea 100-30 A.3, Article XXIV. Section 100-244. Bulk and Parking Ama. Article XX~II. Section 100- 239.4, building scthacks from wa- tel o~'wetlands, fur permission to constrdct a one family dwelling. Property Loca~inn: 55 Glen Coon. Cutch6gue, County Tax Map No. 1000, Section 083, Block 01, Lot 01. 8:10 p.m. AppI. No. 3922 -- ROBERT AND THERESA TURNER. ELSIE PARKiN. Variancc to thc Tax Map No. 1~00, Section 104. Block 04 ~Lot 27. nppL No. 390s --'~""~ ROBERT OCHSENRE~ER AND EDWARD LF~CESKL Vafianc~ f~ reversal of a building permit to construct a omc family dwelling. Property Locadon 565 Raycr Road, The Board of Appoah will at said GERARD p. GOEIIR~/GER By Detach Fcrwerda NOTICE OF HEARINGS NOTICE IS HEREBY OIVEN, pursuant to Section 26? of the Town Law and the Code of the To~n of Southuid, the following hearings will be held by the SOUTHOLD TOWN BOARD OF APPEALS at n Regular Meeting, at the Southold Town Hall, Main Road, Southold, NY, 11971. on THURSDAY, MARCH 29, 1990, at the following times: 7:30 p.m. Appl. No. 3770- PORT OF EGYIYr. Variance to the Zoning Ordinance, Article XII, Section 100-121C-122, Sec- tion 100-239d, was disapproved for permission to construct Boat Storage Building with insuffi- cient setbacks and excessive lot coverage in this Marine Il (M- II) Zoning District. Property Location: Main Road, Southold, County Tax Map No. 1000, Section 056, Block 04, 06, Lot 10.1, 11, 12.2, 3.2, 3.3, 4, 6.1. f?:35 p~m. Appi. No. 3908~ / ROBERT OCHSENRETER AND EDWARD LENCESKI. Variance for reversal of building permit to construct a one fami- I ly dwelling. Property Location: · 565 Bayer Road~ Mattituck, County Tax Map No. 1000, Sec- '.....~ion 139, Block 3, Lot 14. ~ The Board of Appeals will at said time and place hear any and ail persons or ~epresentatives desiring m be heard in each of the above matters. Written com- ments may also be submitted prior to the conclusion of the subject hearing. Each hearing will not start before time allot- ted. Additional time for your presentation will be available, if needed. For more information, Please call 765-1809. Dated: March 26, 1990 BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN By: Do~en Ferwerda IX-3/22/90(8) COUNTY OF SUFFOLK STATE OF NEW YORK ss; Patricia Wood, being duly sworn, says that she is the Editor, of THE LONG ISLAND TRAVELER-WATCHMAN, a public newspaper printed at Southold, in Suffolk County; and that the notice of which the annexed is a printed copy, has been published in said Long Island Traveler-Watchman once each week for ....................... ./... weeks successively, commencing on the ........... .~..c? ....... Sworn to before me this ...... ,~. ........... day of ..... ........ Notary Public BARBARA ,~ e~.,," ' · .. ,a,r.,qE.OEi~ NOTARY PLIDLIC, Slate of New 'fork C Southold Town Board of Appeals FAX NO. (516) 765-1823 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWICKI JAMES DINIZIO, JR. TO WHOM IT MAY CONCERN: Enclosed herewith as confirmation of the time, date and place of the public hearing concerning your 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 times allotted in the attached Legal Notice. Please feel free tQ call our office prior to the hearing date if you have questions or wish to update your file. Yours very truly, dff GERARD P. CHAIRMAN GOEHRINGER APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SC(TVF L. HARRIS Supervisor , Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 Harvey Arnoff, Esq. Town Attorney FROM: Matthew Kiernan, Esq. Assistant Town Attorney Zoning Board-of Appeals~ DATE: May 16, 1990 RE: Appl. No. 3908 - Inland Homes (Ochsenreiter/Lenceski) In the latter part of August Of 1989 I was approached by Eric Bressler who indicated to me that construction in the way of a foundation commenced on a lot which was owned by Victor Lessard's daughter. Subsequent to August 9, 1989, this lot was sold to Inland Homes, Westphalia Road, Mattituck. Mr. Bressler asked me what he thought he should do concerning the construction and what appeared to be a merged lot (merged with the house). I told him that all inquiries as to complaints on building permits should be directed to the Town Attorney. On or about early September 1989, on my lunch hour, I conducted a single and separate search of said property. It indicated that the house lot was purchased by Paul Bittner and wife in 1942 and in 1962 they purchased the lot in question, which is now being constructed upon. In 1962 the zoning was 12,500 sq. ft. or 100 by 125. This lot was approximately 50 by 150 or 7500 -sq. ft. which rendered the lot substandard at the time it was Purchased. It should be noted that these parcels were merged in the same name subsequent to its purchase in 1962. In 1974 or there about, Mr. and Mrs. Spano purchased the property (both parcels) in both their names, thereby continuing the merger. This continued until 1989 when they deeded the house parcel to the Garcias and I believe the lot to Mrs. Garcia, thereby creating an illegal set-off. Mrs. Garcia then deeded her rights in the lot to Inland Homes on or about August 9, 1989. -~age - 2. This Board was unaware of the memo between Dan Ross and Jay Schondabare until early December when a discussion ensued between Mr. Schondebare and myself regarding the legality of this parcel. He told me that he had spoken to a surveyor in town who had told him that older subdivisions were dropped from .time to time from the exempted list. I asked why he did not speak to John Wickham, Henry Raynor, or Howard Terry concerning this particular situation. In any case, I told him that in my opinion that the subdivision was not on the exempted list of the present code, it was not exempt. Miraculously, approximately two days after, Mr. ~iltz called me at my home and I told him the same thing. The only other knowledge that I have is, on or about January 9, 1990, construction above gr6und co~enced on the site and on or about the 15th of January 1990, an application made by Mr. Ochsenreiter and Mr. Lenceski came in to our Board to overturn the permit. Please be advised that these are statements of opinion based upon fact, with full knowledge that they are as accurate to the best of my ability. ZBA/df VICTOR LESSARD PRINCIPAL BUILDING INSPECTOR (516) 765-1802 FAX (516) 765-1823 OFFICE OF BUILDING INSPECTOR TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 TO: FROM: SUBJECT: DATED: ZONING BOARD OF APPEALS BUILDING DEPARTMENT~% CERTIFICATE OF OCCUPANCY MAY 8, 1990 This is in response to your memo dated May 4, 1990 regarding ZBA Appeal #3908. No Certificate of Occupancy has been issued as of this date. No further new information has been added to this file. Please note an Attorney informed me that Supreme Court has issued a determination within the last month which states that old subdivisions that are mostly developed have a vested right or interest. Suggest you have the Town Attorney check to get first hand determination. VGL:gar cc to: TOWN ATTY SOUTHOLD TOWN ZONING BOARD OF APPEALS COUNTY OF SUFFOLK : STATE OF NEW YORK SOUTHOLD TOWN ZONING BOARD OF APPEALS HEARING, In the Matter of ROBERT OCHENREITER and EDWARD LENCESKI, Applicants ........................................ X 53095 Main Road Southold, New York 11971 April 19, 1990 BEFORE: GERARD P. GOEHRINGER, Chairman. BOARD MEMBERS: CHARLES GRIGONIS,~ JR. SERGE DOYEN, JR. JOSEPH H. SAWICKI JAMES DINIZIO, JR. ALSO PRESENT: DOREEN FERWERDA 1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHOLD TOWN ZONING BOARD OF AP ALS SOUTHOLD TOWN ZONING BOARD OF APPEALS : HEARING, In the Matter of : ROBERT OCHSENRETER AND EDWARD LENCESKI, : Applicants. : 53095 Main Road Southold, New York March 29, 1990 8:18 P.M. 11971 BEFORE : GERARD P. GOEHRINGER, Chairman. BOARD MEMBERS: CHARLES GRIGONIS, JR. SERGE DOYEN, JR. (Absent) JOSEPH H. SAWICKI JAMES DINIZIO, JR. APPEARANCES : MOORE & MOORE, ESQS. Attorneys for the Applicants Main Road Mattituck, New York BY: WILLIAM MOORE, ESQ. 16. answers the questions. It shows we did not file untimely and we applied to the proper jurisdiction as directed by Mr. Schondebare, (phonetic Town Attorney at that time. Thank you. THE CHAIRMAN: Hearing n~further ques- tions or comments ... Mr. Zahra, you have some- thing to say? MR. ZAHRA: tonight. It appears that Mr. Lessard may have thought, I'm speculating, that this person was related to me and that's why he came in defense of using it. I want to clear it for the record that it just became known to me that that lady lives on that street, this past week. I believe her name is Sara Zahra and there's no relation whatever. I don!t know if I'm standing up here in her defense or mine. MR. LESSARD: we had. THE CHAIRMAN: The name, Zahra, was mentioned That was not the point that We thank the audience, appli- cants and attorneys and Mr. Lessard for coming in and for everyone's courtesy. I make a motion to close the hearing and 15. THE CHAIRMAN: Clerk's Office? MR. LESSARD: Filed with the County Yes. We don't know if it was.ever with it. THE CHAIRMAN: filed...~ won't discuss it. The hell It has nothing to do~with this. Do we have'any other questions, Jim? MR. DINIZIO: THE CHAIRMAN: NO. We thank you very much. Is there anything? further? MR. anybody else that would like to say Mr. Moore, do you have anything MOORE: No. THE CHAIRMAN: Anybody else in the com- munity? Any other applicants? MR. LENCESKI: We just have two additional exhibits that we"d like to add. We have one for Mr. Moore to examine and one for the Board. Basic- ally, it's a chronological summary of the dates I have that I was here at the first two hearings. There were objections made by the Counsel involved in the Inland Homes. Both questioned our timeli- ness in filing the petition, also our jurisdiction- al choice of who we filed to and this more or less 14. answer your question about the title search on vacant land, I talked to Matt and I talked to Robbie. Before Matt I talked to Jay Schondebare (phonetically spelled) and I said to him, "How am I supposed to handle the subdivisio~ that were stamped and approved by the Planning Board. They never merged." And he said, "Well do they merge or don't they merge?" Okay, I said, "Well, you know as well as I do that people come out and buy lots if they stand a chance, and grab one on either side for their kids. They do that. How do you want to handle that?" He said, "Okay fine, forget the title search" he said, "for all improved sub- divisions that are approved by the Planning Board, all those on the excepted list." With that, what I had in mind, anytime one of those came up, I would not get a title search for it. I would make sure that we had a signed subdivision and I have a copy of every subdivision that ever happened. THE CHAIRMAN: You mean signed by the Planning Board? MR. LESSARD: fiddler's hoot if I Planning Board. Yes. It is not'worth a try to collect by the County That's bogus. 13. Now my only problem with that, I really don't understand why we didn't get a single and separate search on this one. You're clearly stating you thought there may have been one, you were not really sure at that time. Are there any single and separate searches that you have received that you immediately threw out because they were, using your phrase, "bo~us?", Or anything you showed to us they did not specifically ... germaine to the issue? to indicate that they were not MR. LESSARD: When you say, "bogus" title search, the way that was done, part of the time they would give the history of the property back to before zoning. Then you would get a report. The second page of the lot to one side, the third page, the lot to the other side, okay. Then you would get a report the bottom title search indicated there was no 'contiguous property. Now the thing that makes that "bogus" is that that is not so because if you can, in relation to the second and third page, put a time frame of all three pages in front of you, you can see that it's contiguous. That's what I mean by "bogus" title search. To 12. MR. DINIZIO: Thank you. THE CHAIRMAN: The only other thing I have ... I remember the question, I don't remember if it was before this particular hearing actually commenced but when the application was filed with us or during the time between the two hearings, certainly, it was not between those two hearings, but back before this, I went to your department and requested an application for vacant land C.O.s. Now it is my understanding presently, that the Building Department is not granting any more vacant land C.O.s. MR. LESSARD: (Interjecting) The resolution passed. Nobody is getting any of them any more. MR. DINIZIO: I went to the Legislative Hearing last week and we were told at that time, it did pass as you concurred. MR. LESSARD: When I tion it clearly stated that and separate search. THE CHAIRMAN: For the before your department, okay received the applica- it requests a single applicant to go ... with the request to see if this particular lot did stand and was not merged with any other parcel. ¢ 11. "John, you're talkin§ of putting subdivisions, the exception list, how do you take them off? Does the Town Board pass some legislative action, resolution, to remove these and another one to put new ones when they're developed? We just took them off, they were just taking up space?" You have to put yourself back in the late 60's and early 70's and you've got a whole different ballgame than what you're looking at today. You people have to make a decision because they were doing this and that was the past practice...How the hell do you legally stop this stuff? W~o's going to be penalized because you say, "Stop," and then the next day somebody steps into something. That's not my problem. That's yours. I'm glad I'm not sitting up there. MR. DINIZIO: MR. LESSARD: MR. DINIZIO: thing confuses me. That's what I'm searching for. I've probably confused you. Well certainly the whole I still would like, if you could show me, MR. and things the best I a situation similar to this one. LESARD: I'll try, Jim. I was away have been crazy. I'll try. That's can tell you. lot to somebody else and I think the fourth lot went to the fellow that fixes washing machines. I don't know his name, Raynor? THE CHAIRMAN: Thank you. MR. LESSARD: You may ha~e a problem. I didn't want to create a whole damn cloud here. I was trying to keep it so we would not lose sight of the fact what we were here for in the first place. Anything else I can help you with or I didn't answer? MR. DINIZIO: I'm still somewhat confused. I.look to those basically~ as being a layman. I would probably say I don't understand fully, as most people do, but it just came to me, if I black out the names,okay, what would pop up to me is that these two here would still have been unusual compared'to the rest of them. What I was basically looking for, if there is an identical situation to this amongst the houses in the general area ... MR. LESSARD: (interjecting) You're asking for a long shot, Jim. I think what we're looking at here, I talked to Mr. Wickham, I hate to keep using his name. I talked to him. I said to him, these records that would go to the extreme of splitting~a lot and putting another house on it and actually issuing a C.O. for that. These don't say that they list a lot and put a house on it, that that actually really happened here. What I was basically looking for, I think you said that it is common-practice to go to those excepted lists and do that. What I'm basically looking for in this development is where was it done~ MR. LESSARD: I didn't have time to re- search all those vacant land lists. I gave, I don't know how many houses were on them but they were conti§uous lots. THE CHAIRMAN: Were houses on them or not? MR. LESSARD: I don't know as far as this particular ... t don't think the Board should be separating one against the thirteen. This particu- lar subdivision for whatever you are looking, you should look under Kominsky or to Lesko (phonetic- ally spelled.) I think another lot went to Acardi (phonetic) or something like that. That's just one example again. Frank Oliver, too, he hacked off pieces for his daughter, Pamela and then another builds a house on it and sells it to Clancy. I would never be the one to go out and tell you where all these lines are but this was a continuous prac- tice right along. I did what you said. I got hold of John Wickham. 'I don't know what the hell is going on, what you people were 'doing back in the 60's and 70's and I said, "How do you handle the subdivision?" and he said, "Whatever it called for at ~at period of time. If a person hacked off a piece and filed it and the County didn't object, it was fine with them." And I said, "You've got to be kidding me?" and he said, "Hell, no. How do you think Schoolhouse Road was developed? They just hacked off every time they needed another lot." So, you know, you people are faced here with a problem procedure. How are we going to stop it or should we stop it or should we recreate a whole bag of worms. I would not want to be in your shoes. I can tell you that right now. THE CHAIRMAN: Are you all done? MR. LESSARD: I'm not finished. MR. DINIZIO: I still think maybe I'm missing something but I'm searching but still didn't find anything. THE CHAIRMAN: I have not found anything in and his widow go~ married again and Ocean Ryder bought two lots vacant, one the house was on it, in 1972 or whatever it was. So there was no problem there but then you see another notation where in '73, I think May of '73, apparently George Taylor here I'm guessing~,he could probably tell you better plus offer some kind of situation where he bought maybe, three-quarters of the next lot to him. Okay, no lot line changes, no nothing, just by deed apparently filed with the County.. Then you have two lots after that, that involve the Lenceski's. They come along in 1985. They want a house. Fine. They buy two lots but in buy- ing two lots here, I could never understand all this time, nobody stays in the subdivision. They bought two lots like everybody else but then bought thirteen feet on'the east and ten feet lot on the west. Now you can't blame these people. They bought what was offered to them. And then we go down to Clancy which is next door. Stacy, I think the guy's name is, he buys this lot and he gets in a push and shove with Mrs. Zahra where he sells that, dumps it to Gastar (phonetically spelled) who e least three and the thing that amazes me in this whole thing, in researching this, you have to keep in mind what we're after here. You see, we're going out and creating another can of worms. It's not going to answer it. So I did it but I didn't do it. I didn't put that much ~ime into it. What I did find out is the subdivision is filed with the County in 1927 and the Town went into zoning in 1957 and from that I could tell the first piece of property to go single and separate. Again, you have not got that much research. Now Zahra here, the subdivision, I'm not picking on Zahra or anybody else. I don't want to start with that nonsense. Here with that subdivi- sion, that was excepted by the County and went into zoning before we ever put the exception list. The first thing ~hat happened, instead of buying lots according to the subdivision that's hacked out between two lots and as you go down through the process, the immediate neighborhood, because they didn't want to go 86 lots. It's a hell of a lot of lots. We started the other side, Ocean Ryder, I hope I said that right, that property originally belonged to Rodney Cox who died in '66 ¢ I looked through all of them and the only one I could find that really actually divides the lot to build a house, it seems, correct me if I'm wrong that most of those contain, if there was.something with~a lot line, it was just the neighbors got together and divided up a lot that was between them to expand the 16t. MR. LESSARD: Yes, it is horrendous. Under that subdivision they got away with murder in that~on, MR. DINIZIO: But there's no other instance where the lot was actually taken off another piece of property was separate and a house built on it~ I don't believe, if you researched under ... MR. LESSARD: Well first off, it is hard to trace back through the present, Assessor's - cards but Walter, there's a good chunk of this subdivision, but to get it up to my generation, if you would, the Kray,s (phonetically spelled) divided up the property and sold it to the Olivers, the Komisky's (phonetically spelled) and they were in the same subdivision but away from the problem. So I didn't go too much into it. I know there was lots bought and sold. Komisky's, then Fred Kray had three or four of them. Frank Oliver had at THE CHAIRMAN: My question to you, was there single and separate searches of this particular parcel and did you receive them, to your knowledge?. MR. LESSARD: Not that I'm aware of. The only thing I could say to this is, there was a title guarantor at the closing and there was a lawyer for the seller and a purser for the bank and I'm sure they all did their homework. Of course, there's nothing guaranteed in that either because no one ever questions the title search for single and separate because it was the exemp- ted list. That's what this is all about. It was 1966...you have a copy. It was '66 or '67, what- ever it was. I have it here. I have one dated here May 24, '66. That's the one I gave you. I don't know if I ~eceived it from you or the Town Clerk from me. That was from me, you requested it last time. I thought I had given one to Jim. Apparently I didn't. THE CHAIRMAN: There's one other question which escapes me at this particular time. Do you have any questions? MR. DINIZIO: Just the property tax record. THE CHAIRMAN: Yes, we have it. Thank you. For the record, I have sent Mr. Lessard a memo requesting him to come tonight, to just continue one other discourse that we were dis- cussing and he did come and we-appreciate that. \ Could I ask you to use the microphone, Mr. Lessard? We were discussing lots built on single, separate ownership as opposed to lots bought on merged parcels of vacant land C.O.'s at the last meeting. It is my understanding that, at that time I was talking to you, that we were dis- cussing the single and separate searches. You used the word, by name, "Bogus," referring to single, separate searches that you received in the past. Is that correct? MR. LESSARD: Yes. THE CHAIRMAN: Concerning lots, I assume that you had requested single and separate searches on, is that correct? MR.LESSARD: Yes, title searches. The only difference between a regular search and a single, separate search they're really searching the property around to make sure that it was not part of any other parcel. That's my understanding of it. (HEARING RE-CONVENED) THE CHAIRMAN: The final appeal of the evenin§, recessed from last meeting on behalf of Robert Ochsenreter and Edward Lenceski, Number 2908. It's probably the~irst time I've pronounced it correctly. This particular recess was requested for'Mr. Moore. So I'd ask, Mr. Moore, if you'd like to proceed. MR.MOORE: Good evening, William Moore, Suite 3, Clause Commons, Main Road, Mattituck. I apologize. There's been a lot of work tha~ was going on. When we were done, when we ended, there was a request by the Zoning Board of Mr. Lessard that he provide it specific vacant land C.O.'s list on the tax property part. So if I may just simply request those pieces of information which are in your file already, become an official part of the record. I have nothing more to add. That was work I was going to get together and submit. I'm glad Mr. Lessard has already done that and got it in to you. Do we have a clean copy of this to put in the file? TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN HALL SOU. THOLD, N. Y. ,BUILDING PERMIT (THIS PERMIT. MUST BE KEPT ON THE PREMISES UNTIL FULL COMPLETION OF THE WORK AUTHORIZED)' ~f~....~..~....~ ..... './.~,.,~~~ ..... · -.: ..~.....A .../...~.-~ . · ..., .... ~ ...... '...~. ~.~ ...... ~...~:~-,~ .................... . .................... ........... ~..~**, ,~..,,~ ........ ~ ............................................................... ~,,:~.. -.'~ · ~ Building IrtsD~:tor ' '"? Rev. 6~30~80 EXHIBIT J THE FOLLOWING PERTAINS TO LOTS 35 & 36 AT BAYER RD., MATTITUCK, NY LONCa ISLAND. TRAVELER.WATCHMAN Officials Questioned . ,, On Daughter's Permit SOUTHOLD '--A Mattituck ";; ' ' In August, Ross said, a building lawyer wrote to Town Attorney permit was issued to Inland Homes James Schondebare this week ques- tioning the legality of a building permit issued for one of two lots in- volving Principal Building Inspec- !or Victor Lessasd's daugher, Cor- inne Oarcin. · . Attorney Dan Ross said be.~had been retained by neighbors to find out why a building permit had been issued for construction of a single- 'family house on a 50-foot by l$0-foot lot on Bayer Road in Mat- tituck. According to' county records, he said, a subdivision known as Mattituck Heights was filed in 1938, indicating two lots, each of 7 500 square feet ' ., A house was built on one lot, and the other remained vacant until this' summer when foundation work began for a house on Lot 36, he said. The lots, he maintains, were legally merged, because through the years they were not held in single and separate ownership, and therefot~ not exempt from the town's subsequent rezonings. Ross said the lots were owned by L~onard Spaoos from 1972 until June, 1989, when he sold the lot with the house to Lassard's daughter and her husband, Richard Gan:ia. On the same day, Ross said, Spanos sold the vacant lot to Richard Garcia only. ROs'~ also said that in November, 1988, Spanos ob- tained a vacant land certificate from the town's building depart- mel,~ ~tjs~t~ by ¥iC~f Lessard. to construct a single-family house on the vacant lot. "A foundation went in and some of the neighbors made noise and asked us to investigated' said Ross, adding: "In our opinion the two lots were merged and Lot 36 does not exist as a legal building lot:' Lessard, who was visibly upset by the suggestion ofkny wrong doing, said that his son-in-law had sold the vacant lot in July to Robert Hitz, owner of Inland Homes, shortly after he purchased it from Spanos · "I am not surprised at this; look where it is coming from;' he said, noting that Ross works in the same law firm as Eric Bressler, whose client, Charles Zahra, and L~ssard have been involved in numerous bit- ter legal disputes for several years. "Now they are trying to get at my family, but they won't say who fil- ed a complaint;' Lessard said. "1 want to know who ail the players are? . Lessard said the subdivision was "exempted in the town's building zone ordinance in 1966:' and the lots are listed as separate on the Suffolk County Tax map. That may be, Ross replied, but the lots were not exempt from the enacted in. 1989, "and we believe they are merged;' he said. ~ --Lydia Tortora &22 The Suffolk Times · October 26, 1989 'l/4,Ac e:Building. .,. Lot Raises Questions .... By Bill Fallon · -'"~ - ac~ghborhood zoning. (The zone-is R- Inland I-Iomes could not be reached fo~ Mr. Ros~, thc two parcels became one MATTITUCK~There is a house :. ~40, m'. ~ .ac~.; a~ 7,500 sguan~ feet, ~ comment and l~r.'Garcia's tcl. ephone between 1972 and 1989, when it was golns up in Mattituck on less.than 1/4.-:7-.~cmrc.m .lot m l~s. ~h~ 1/4 of*_hn* ) IVlr. hum.b? is not listed. · ' - .' : occupied by Mr. Spano nnde~ a single acreinanclghhxhoodzoncdone .n??.rlt'~*,.~C~uc?lx~tttteprOl~.m~June26. *$ee~ff~ ~ ~[ar(['l, catJols /' CO. Thc prcvious ownm-s, identified is bcin* built with two valid Buila~ ~,~r. t,essaM said hc sold it in July to "Neighbors of thc property have only as'the Bitmcrs, bought the unde- ~nt ' 'ts, but nel ~ )' :~lnla~l Homes .of Mat~Mck ~ I-I~r- Depm pcnm ghbors Imve- · protested to thc town alMmcy*s office, vcloped gm~cl in 1965, cffecfiveAy dou- reason Ihe permits wm'e issued in ,the ~ ._: ouu..mn_~,[~s~t..~A~..s:-.m~, l.m..was..,,.ficafion of thc ruling ttmt sHowed lhe _ ':"_Mr. Ross points m tinge elements of in-mw .t~etween the tune the .first and :: ": ' ' ? :~: --- "" ":'s' :' ' ; =r ? ~i~ - '~: ~S iHegnL One= of them says Single and jacent to a similar-.~ized lot ~ in-~. .......... -~ --.'~ selves. 'Long' Island developer.Nick ~suMivlsion. -.~ ...-Comne Lessard, daa~tc~;of. ~Vic _~r .--_ .~ .uc?.nese. c.~.e ~-a~_.,y: act-;.':i .conversa~ons mcl.u, ded m the. Sept. ?~ swmnped ~ work since assistant Lessmd.,townbufld~n~bJ~pect0r. - mg tm'ougn me ,lete~,lnn! Vm'lo ...~- ieOcr..l~r. Rn,~qeHi. who has not been .+ lownn",m~yRobBcrntssmmovedand The two lots V/C.. sc1~ratc until "d~_d~____nl~_._o~f ~Lo~...66,.'..~..':~ ncc ~1~! of'-any illegal activity, also hc bna not ~ the lettm' in qnesd~m. · · · '. y Local 66 comfibuted to .' tmon. ~' ' pancy was issued tO" the Ihen-owner, - ...... . - . , . ., . .. Leona~l Spano. In 1973, the Town~: --t~°t?ust~ce~JndgeM;~M'~. ._ Mr. Caracciolo s campaign, tmion at-. A.other."z%oo · elawdmtc~ldhavet~ ~ ~.--,- cmo o~concn~comzac~ms,~.r,~mized .hard to snv, becauscl~eirPACr, v,,.,.~ n~canwnue, meumMmg~:l~htt"~nt butMattJ~lrHcights'- ~esl~of~e ,.snarcu~mmatJono. nnpcommgbldsm ' mon~y to many candidates -- as. do r~'c~_~Eeek/w mclr, swunnung .p~ol disputed lot -- was not included. 1~. ord~ to aUocate jobs among them-. ~y c.(xponmm~ and mue.s." ~ ,last Friday after i~c town --,~ncy with- ].,essmd said Tnesday that Mattituck., :. ~ d~w t~c ch~rgc~ flint tl~ ixx)l was ~ Hcights is an exempted subdivision. When u reporter told him the Town Code specifies thc exempted subdivi sions in Sontbold Town and Matfitnck Ibsto Heights is not among Ihem Mr~ ,~,,.~ ' Tues~October~? · ""~---" ' Wed.,~tober 18 of OCCL'I~mc~ (CO)f~' ~ pro~n~ last. S~L, Octo~er2~ ]~r. SPare). A ~aca~t CO mea~s a Io~ is Mon.,Octo~er 23 '"- Weather Watched mgh Low Pmclp. 48 *' 42 ,* 022 57 44 ' 0~2 .70 : 40 ' 1.~5 53 43 0.00 55 39 - 0.00 Sun, fair to wasm to a,m. stayers Rah on through to clear & colder Ck3udy, wirldy & rain Ra~ & wind on through 'Rain, heavy at times to clearing Sun, breezy, fair to co~er Sun, breezy, cool to mi~d p.m. (Coufte~yOreonpoft Utllltlos) tot m quesUoa ,is too mna]i fo~ lhe O~adlnma ta~$n In mm. for Iwoviouo 24-hour Judge Frederick Tc(lesc~ agrced with town s*m*.ney James Sctmmdcbarc whcn Mr. Schondetmm ~id the pod wanamed aCO. One hour later, tl~ Building pamacnt was on thc sccnc and issucd a CO. It is too late M swim, but it is a olhc~ case in statc Supreme Com't against the Building Dcpartmcnt con- lesdng Ibc stop work order on his Cof- fce Pot Restamant on PUre $~reet in 1Mnt~*uCk. WICKHAM, WICKHAM & BRESSLER, P.O. October 17, 1989 Town of Southold Town Attorney's Office Main Road Southold, NY 11971 Attention: James A. Schondebare, Esq. Re: Construction on Bayer Road, Mattituck Suffolk County Tax Map #1000/139/3/13 Suffolk County Tax Mao #1000/139/3/14 Dear Mr. Schondebare: We have been retained by certain individuals residing on Bayer Road in Mattituok with respect to the current construction on property designated on the Suffolk County Tax Map as 1000/139/3/14 ("vacant property") which encompasses an area of 7,500 square feet. Specifically, a question has been raised as to whether the vacant property is a valid building lot due to its contiguity to the -property to the west designated as 1000/139/3/13 on the Tax Map and upon which there presently exists a house ("residential property"). We are contacting you prior to making an application to the ZBA for reversal of %he Vacant Land Certificate of Occupancy NO. Z-17543 dated November 28, 1988 ("C.O.") and the Building Permit No. 18355Z dated August 8, 1989, ("Building Permit") in an attempt to avoid needless litigation. It is our position that the vacant property merged with the residential property, thus rendering the vacant pFoperty unbuildable at the present time. I have enclosed to aid in your review the following: 1) Certificate of Occupancy No. Z4575, dated 3/2/72 covering both the vacant and residential property; 2) Application for Building Permit No. 183557. dated 8/8/89 3) Correspondence from SCTIC Inc. dated 9/13/89; 4) Vacant Land C.O. No. Z-17543 dated 11/28/88; 5): Building Permit No. 18355Z dated 8/8/89; 6) Town of Southold Property Record Card re 1000/139/3/14 and 1000/139/3/13; 7) Survey of properties dated 3/30/72; Turning first to the facts, it appears that both the referenced properties were owned by Leonard Spano and his wife from 1972 to 1989. It appears that the residential property was deeded by Andrew to Bittner in 1945 (L. 2485 p. 49) and the vacant property was deeded by Amburst to Bittner by deed dated 11-19-65 (L. 5867 p. 188). Both properties were deeded to the Spanos by one deed dated 4-11-72 (L. 7140 p. 32). The vacant property (1000/139/3/14) upon which the C.O. and Building Permit were issued is shown as lot 36 on the "Amended Map of Mattituck Heights, Property of Gustav Bayer, at Mattituck, Suffolk County, New York" filed in the Suffolk County Clerk's Office July 24, 1935 as Map No. 1184. The residential property to the West (1000/139/3/13) is shown as lot 35 on the Mattituck Heights Map. Both properties were held by Leonard F. Spano and his wife under. the deed dated April 11, 1972. The residential property was transferred to Richard Garcia and Carmine Lessard Garcia by deed dated June 26, 1989 and recorded on July 7, 1989 at Liber 10891, page 166. The vacant property was conveyed by the Spanos by deed to Richard Garcia dated June 26, 1989 and recorded on July 7, 1989 at Liber 10891, page 170. Turning next to the Southold Town Code sections, I would first note that both properties are presently in an R- 40 (one acre) zoning district. As noted, the property upon which the building permit was granted is approximately 7,500 square feet. Consequently, the property upon which the building permit was granted does not have sufficient area to satisfy the requirements of a buildable lot under Article IIIA section 100-30A.3 of the Town Code. Neither does the property satisfy the requirements of Article XXIV section 100-244 of the Code which pertains to nonconforming lots. To be a buildable lot section 100-244 requires in part that the lot was held separately and did not adjoin another lot or land in the same ownership at the effective date of Article XXIV. The effective date of Article XXIV appears to have been January 10, 1989 by L.L. No. 1-1989. You are also 2 referred to Southold Town Code Sections 100-32, 100-12, 100- 281(A)(7) and section 265(a) of New York State's Town Law for additional statutory law relevant to this issue. Based upon the facts set forth greviously and the applicable law referred to above, it appears that the vacant property upon which the building permit and C.O. was issued is not a buildable lot. Would you please review the convenience and advise. tatt-75 foregoing at your earliest JAMES A. SCHONDEBARE NATTHEW G. KIERNAN Asst. Towu A~torney OFFICE OF THE TOWN ATfORNEY TOWN OF SOUTItOLD December 11, 1989 Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 · TELEPHONE (516) 765-1939 FAX NO. (516) 765-1823 Daniel C. Ross Wickham, Wickham F, Bressler Main Road P.O. Box lq2~ Mattituck, NY 11952 Re: Construction on Bayer Road, Mattltuck Suffolk County Tax Map #1000-139-3-13 Suffolk County Tax Map #1000-139-3-1u, Dear Mr. Ross: As a result of your letter of October 17, 1989, I have reviewed the history of this parcel and applicable law. You are correct in pointing out that under section 100-12 of the Town Code the filed map subdivision called "Amended Map of Mattituck Heights," is not listed along with other exempted subdivisions. However, as shown in the Zoning Code of 19fi& this subdivision was listed as exempt. Of the nineteen listed subdivisions exempted in 19G6 only three are presently listed in section 100-12. What then is the status of the other sixteen subdivisions? I have researched this matter and have determined that as each subdivision was developed the need to exempt same no longer applied, hence, the subdivision was omitted from the section. It is the opinion of this office that the parcels in question are part of a legal and exempt subdivision, and to hold to the contrary would jeopardize every landowner who has not built upon their lots located in the other sixteen subdivisions. The remaining issue is whether or not a merger occurs when a person owns two or more contiguous parcels which parcels are located in a filed map subdivision and which subdivision is so recognized by the Town. Wickham, Wickham g Bressler December 11. 1989 Page 2 A review of the Code does not show a clear legislative intent by the Town Board that a contiguous parcel owned jointly in a legal and recognized subdivision merger. Absent such a clear direction ~ would not assume same by implication since the practical ramifications are enormous. It is the opinion of this office that the building permit issued is valid; however, as you know the final interpretation of the Zoning Code rest, both under the Town Law and the Town Code, with the Board of Appeals. JAS:mls cc: Town Board Building Department Very,truly yours, Ja ' A~. Schondebare :~n Attorney Supreme Court, Suffolk County Full lille of action INLAND HOMES, INC., For a Judgment pursuant to Article 78 of the CPLR Petitio,er(s) GERARD P. GOEHRINGER, Chairman, CHARLES GRIGONIS, JR., SERGE DOYEN JR., JOSEPH H. SAWICKI, JAMES REQUEST FOR JUDICIAL INTERVENTION For Cledz Only Name of auigmd judge Date of assil~ment DINIZIO,. JR., constituting the 3OUTHOLD TOWN ZONING BOARD OF APPEALS, [] Issue joined (date ....................................................... ) (check ffapplicable) [] Bill of particulars served (check ffapplicable) Respondent(s) In the City of New York only: [] The City of New York is a party to this action. t-1 Thc Transit Authority (or MABSTOA) is a party to this action. NATURE OF JUDICIAL INTERVENTION (check) 3 Request for preliminary conference 3 Note of issue and/or certificate of readiness 3 Notice of motion (return date ................................................................ ) Relief sought ........................................... : .......................................................... 3 Order to show cause (Clerk will enter return date .................................................................... ) Relief sought ...................................................................................................... NATURE OF ACTION OR Fort :] Motor vehicle 3 Medical malpractice 3 Dental malpractice ] Seaman 3 Airline 3 Other tort, including but not limited to personal injury. property damage, slander or libel (specify): ...................................... Matrimonial (contested) Matrimonial (uncontested) [] Other cx parle application / ~[~ Notice of petition (return date ..AucJus.t,....24.r....1.9,90--------) Relief sought .....A~.t.i¢.le-...7.8-...reve~.sa-t-.--a. nd ............ .an nut. men t.....o f-...de ei-s.ion-.-.o-~.-.-Res-p onden-t'- [] Notice of medical malpractice action [] Notice of dental mMpractice action [] Statement of net worth [] Writ of habeas corpus [] Other (specify): ...................................................... ;I~C~.V.~]}..~../ .......... ............................................................................. ......... PROCEEDING (check) _~.~',_~.~'"'-~-'~.,~ Special Proceedings [] ]'ax certiorari v [] Condemnation [] Foreclosure [] Incompeteocy or conservatorsifip Other special proceeding, including but not limited to: [] Article 75 (arbitration) [] Article 77 (express trusts) ~ Article 78 UI Other (specify): ............................................................................................ OTHER ACTION [] Contract [] Other (specify): .................................................................................................. ~structions: Attach rider sheets if necessary to provide required infnrmalion. It any party is appearing pro se (withont an attorney) the required informatlnn concerning such party is to be entered in the space provided for attorneys. - J ( Attorney(s) for plaintiff(s)/petitioner(s) - ~-,~ Name Address Pachman & Oshrin 366 Veterans Memorial Highway P.O. Box 273 Commack, NY 11725 (516) Phone 543-2200 Attorney(s) for defendant(s)/respondent(s) Harvey Arnoff, Esq. Southold Southold Town Attorney Main Road Southold, Address Town Hall NY 11971 (516) Phone 765-1800 · Name of insurance carriers (if applicable nnd available) Not applicable RELATED CASES (if none, write "NONE" below) Tit I__.~e Index # None Court Nature of relationship ! affirm under penally of perjury that, to my knowledge, olher than as noted above, there are and have been no related actions or proceedings, nor has a request for jndical 'nlerventmn Jrevmus y been filed in Ihis action or proceeding. Pachman & Oshrin A,or.e~s)~r Petitioner Office & P.O. Address 366 Veterans Memorial Highway P.O. Box 273 Commack, N.y. 11725 Signature--type name ~1~'~.' ......................................................................... SUPREME COURT COUNTY OF SUFFOLK STATE OF NEW YORK INLAND HOMES, INC., Petitioner NOTICE OF x PETITION x x Index No. For a Judgment pursuant to Article 78 of the CPLR x X against x Assigned x Judge: X X X X X GERARD P. GOEHRINGER, Chairman, CHARLES GRIGONIS, JR., SERGE DOYEN, JR., JOSEPH H. SAWICKI, JAMES DINIZIO, JR., constituting the SOUTHOLD TOWN ZONING BOARD OF APPEALS, Respondent. PLEASE TAKE NOTICE that, upon the petition of Inland Homes, Inc., verified the ~ 0-j~ day of July, 1990, and the exhibits and documents attached, copies of which are annexed hereto, an application will be made at an IAS term of the Supreme Court, to be held in and for the County of Suffolk, at the courthouse at Griffing Avenue, Riverhead, New York, on the 24th day of August, 1990, at g:30 a.m. or as soon thereafter as counsel can be heard for a judgment pursuant to CPLR Article 78, reversing and annulling the decision of the Respondent in Appeal Number 3908 and for such other and further relief which the Court deems just and a certified transcript of the record of the and legal memoranda shall be served at least proper. Answering affidavits, proceedings under consideration, seven days before such time. Dated: July ~0 , 1990 Yours, etc. Pachman & Oshrin Attorneys for Petitioner 366 Veterans Memorial Highway P.O. Box 273 Commack, NY 11725 (516) 543-2200 To: Southold Town Zoning Board of Appeals SUPREME COURT COUNTY OF SUFFOLK STATE OF NEW YORK .......................................................... x PETITION INLAND HOMES, INC., x Petitioner x Index No. x For a Judgment pursuant to Article 78 of the CPLR x x Assigned against x Judge: X GERARD P. GOEHRINGER, Chairman, CHARLES GRIGONIS, JR., x SERGE DOYEN, JR., JOSEPH H. SAWICKI, JAMES DINIZIO, JR., x constituting the SOUTHOLD TOWN ZONING BOARD OF APPEALS, x Respondent. x TO THE SUPREME COURT OF THE STATE OF NEW YORK, SUFFOLK COUNTY: The petition of Inland Homes, Inc. respectfully shows: 1. The petition of Inland Homes, Inc., a New York corporation, with principal offices at 315 Westphalia Road, Mattituck, New York, is the owner of real property located at Bayer Road, Mattituck, New York with the Suffolk County Tax Map No. 1000-139-3-14 which property is more particularly described as follows: ~ ALL that certain plot, piece or parcel of land, with the buildings thereon erected, situate, lying and being at Mattituck, Town of Southold, Suffolk County, New York, known and designated as Lot #36 on "Amended Map of Mattituck Heights, Property of Gustav Bayer, at Mattituck, Suffolk County, New York" and filed in the Suffolk County Clerk's Office on July 24, 1935 as Map #1184, which said lot is more particularly bounded and described as follows: BEGINNING at a point on the northwesterly side of Bayer Road, where same is intersected by the division line between Lots #35 and #36 on the above map, which said point of beginning is located on the northwesterly side of Bayer Road distant 100.00 feet west of the intersection of the southerly side of Grant Blvd. with the Westerly side of Bayer Road~ RUNNING THENCE South 31 degrees 04 minutes 30 seconds West, along the northwesterly side of Bayer Road, a distance of 50.00 feet to a point marking the division line of the herein described lot and Lot #35; THENCE North 58 degrees 55 minutes 30 seconds West, along the division line of Lots #35 and #36 a distance of 150.00 feet to a point; THENCE North 31 degrees 04 minutes 30 seconds East, 50.00 feet to a point marking the division line of Lots #36 and #37; THENCE South 58 degrees 55 minutes 30 seconds East, along the division line of Lots #36 and #37 a distance of 150.00 feet to the point or place of BEGINNING. The petitioner's property is located in the "Low Density Residential district". 2. The respondents GERARD P. GOEHRINGER, CHARLES GRIGOHIS, JR., SERGE DOYEN, JR., JOSEPH H. SAWICKI, and JAMES DINIZIO, JR., at all times herein mentioned constituted and still constitute the SOUTHOLD TOWN ZONING BOARD OF APPEALS (hereinafter referred to as "Zoning Board") of which the respondent GERARD P. GOEHRINGER is the chairman. 3. This proceeding is brought pursuant to Article 78 of New York Civil Practice Proceedings Law to challenge the decision of the Zoning Board in Appeal number 3908 which was, upon information and belief rendered on or about Nay 15, 1990 and filed in the office of the Southold Town Clerk on June 11, lggo. 4. In its decision in Appeal No. 3908, the Zoning Board determined that a building permit issued to the petitioner for the construction of a single family residence was invalid thereby reversing the decision of the building inspector who issued the permit (Decision attached hereto as Exhibit Al. 5. The building permit in question was issued on August 8, 1989 for the construction of a single family residence on the petitioner's property (Copy of permit attached hereto as Exhibit B). 6. On August 30, 1989, excavation was commenced on the property and on August 3], 7. 1989 the foundation was poured. A petition to the respondent Zoning Board of Appeals was filed by attorneys representing neighboring property owners appealing the decision of the building department to issue the subject building permit to the petitioner. 8. lhe petition was not filed with the Zoning Board until January 19, lggo, a period of 165 days from the issuance of the building permit. 9. In the petition to the Zoning Board, the neighbors acknowledge that the building permit was issued August 8, 1989 and that work was begun on August 30, 1989. 10. Pursuant to New York Town Law Section 267(3), The Zoning Board of the Town of Southold has no established rule setting forth the timein which an appeal must be filed with the Zoning Board from a decision of the building department. 11. The failure to appeal the building inspector's decision to grant the building permit to the petitioner until 165 days after the permit was issued constitutes an unreasonable delay and renders the Zoning Board's action on the appeal jurisdictionally defective. 12. The decision of the ZONING BOARD OF APPEALS contains only groundless conclusions and provides no findings upon which to base its determination. 13. The determination contained in the Exhibit A decision is arbitrary, capricious and totally without any basis in law. 14. Thirty days have not expired since the filing of the Exhibit A decision with the Office of the Southold Town Clerk. 15. Petitioner is a party aggrieved by the Exhibit A decision. 16. Petitioner has no adequate remedy at law. 17.* There are no previous applications made for the relief sought herein to this or any other Court. WHEREFORE, Petitioner respectfully requests that a judgment be made and entered herein annulling and setting aside the decision of the Respondent ZONING BOARD OF APPEALS OF THE TOWN OF SOUTHOLD, and directing the reinstatement of the building permit previously issued to the Petitioner. Dated: Mattituck, New York July 10, lggO Robert Hiltz ~/ STATE OF NEW YORK ) ) SS.: COUNTY OF SUFFOLK ) I, Robert Hiltz being sworn, say: I am the President of Inland Homes, Inc., a domestic corporation and a party in the within action; I have read the foregoing Petition and know the contents thereof; and the same is true to my own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters I believe it to be true. This verification is made by me because the above party is a corporation and I am an officer thereof. The grounds of my belief as to all matters not stated upon myown knowledge are as follows: information filed in Respondent's office. Sworn .to before me on the ~0 ~ ~ of Jul. y, 1990 WIU.IAM D. MOORE No. 4832728 Corn Quellfled in SuffMk County By: INLAND HOMES, INC. Robert Hiltz APPEALS BOARD MEMBERS ~-.rard P. Goehrlnger, Chairman Char]es Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 SCOTT L. HARRIS Supervisor Town Hall. 53095 Main Road P.O. Box 1179 Somhold, New York 11971 Fax (.516) 765-1823 Telephone (516) 765-1800 ACTION OF THE BOARD OF APPEALS Appl. No. 3908 'Application of ROBERT OCHSENREITER and EDWARD LEt~CESKI. Variance for reversal of a building permit to construct a one-family dwelling. Property location: 565 Bayer Road, Mattituck, NY; County Tax Map No. 1000, Section 139, Block 3, Lot.14. At a Meeting of the Southold Town Zoning Board of Appeals held on May 15, 1990, the following action was taken: WHEREAS, public hearings were held on February 1, 1990, March 29, 1990 and April 19, 1990 in the Matter of the Appli- cation filed under No. 3908; WHERK~S, at said hearings all those who desired bo be heard were hear~ and their testimony recorded; and WHEREAS, the Board Members have carefully considered.all · %astimony and documentation submitted concerning this application; and WHEREAS, the Board Members have personally viewed and are familiar with the premises in question, its present and previous zoning classifications, and the surr.~unding areas; and .. ~ ppi. No. 3906 ~l~catlon of Ochsenreiter & Lenceski /.~roperty Owner: Inland Homes, Inc. / ZBA Decision Rendered May 15, 1990 WHERe%S, the Board made the Following Findings of Fact: JURISDICTION OF THE BOARD OF APPEALS 1. One of the first issues raised in this matter is whether or not this Board has jurisdiction based upon the timing of the filing of this application for a reversal of a building permit issued by the building inspector under Permit No. 18755 on August 8, 1989 and/or concerning construction commenced under said permit approximately five to six months late (above ground construction)~ 2. Some of the past applications considered and decided by this Board have included requests for a reversal (or otherwise related to an improper building permit or improper construction related under a b~ilding permit) based upon written determinations or action of a Building Inspector, including but not limited to determinations under: (a) A building permit issued by the inspector which were issued months before and were still pending during the processing of a review of this Board, and that either did not involve construction or improvements under said building permit or did involve construction' 'or improvements under said permit, and as much as a year from the date of issuance of the building permit (Article XXVIII, Section 100-281H authorizes work to be "commenced within twelve months after the date of issuance."): (b) the guise of a building permit and which construction was built (within a year from the issuance date of the permit), and which was built "in error" under the zon~g code provisions and was reviewed by the Board of Appeals for consideration of the nonconform- ance under the zoning code; (c) A building permit issued and late issued a stop work notification by the building inspector to suspend all building activities, pending a final determination (after review) by the Board of Appeals; (d) A determination, requirement, order, or decision made by the building inspector (in addition to other reviews conferred by law) - (Reference: Article XXVII, Section 100-271 - Powers and Duties of the Board of Appeals). ~d,~'3.- Appl. No. 3906 /~plication of Ochsenreiter & Lenceski / 3. The following time periods are submitted for the record concerning the application for building permit, under review, and activities related thereto: . (a) Application filed August ~, 1989,(iSsued on August 8, 198~ for the construction of a 26' x 40' deep dwelling (envelope) with sideyards at 14' and 10' with handwritten notation "...as per Building Zone Ordinance 1966 Section 307, sideyards" (reverse side, page two). (b) Building Permit No. 18355Z issued August 8, 1989 concerns premises referred to as "565 Bayer Road, Mattituck, New York, County Tax Map No. 1000, Section 139, Block 3, Lot 14," owned by Richard Garcia, who later sold the land as a vacant plot_on October.2, 1989 to Inland Homes (see Deed at LLber 10950 page 172). (c) on or about August 30, 1989 excavation started and on August 31, 1989, forms for a foundation were placed. (d) by letter dated October 18, 1989, an attorney for neighbors residing in the immediate vicinity notified the Southold Town Attorney's Office of the circumstances of the subject land as a merged parcel, and questioned the validity of the vacant land as a separate buildable parcel for a new dwelling; (e) shortly after this letter was sent to the Town Attorney, the media was made aware through the local newspapers published in the Township that a review was being made by the Town Attorney's Office as to the validity of the subject building permit and the vacant land conditional Certificate of Occupancy also issued during 1989; (f) On December 11, 1989, the Town Attorney replied by letter indicating the results of his review, opinionating that the Code does not show a clear legislative intent by the Town Board, although final interpretation rests with the Board of ~DDeals both under the Town Code and Town Law. At no time did an interpretation request be made through the Board of Appeals by any person or representative; and the Town Attorney's written response dated December 11, 1989 Was not furnished to the Board ~ (until January 19, 1990 the time of the filing of this application under Appl. No. 3908). Jurisdiction concerning ~ .~'~ - Appl. No. 3906 . . ,.~ication of 0chsenreiter a Lencesk/ ..~ DeciSio~ Rendered May 15, 1990 · XXVII, interpretations is with the Board of Appeals (see Art/cle Section 100-271D of the Zoning Code of Southold Town). (g) It is understood that during the first week in January, 1990 the foundation was .prepared & on January 8, 1990, the foundation backfilled- (h) The next day (January 9, 1990) certified-mail notiCeS were sent to the adjacent property owners and to the owner of this parcel (Inland Homes, Inc.) and his attorney,?of notifica- tion and intent to file this petition to the Board of AppealS; (i) On January 15, 1990, deck framing was started; (j) On January 19, 1990 the Petition and accompanying papers were filed with the Southold Town clerk and Board of Appeals; (k) On January 23, 1990 a written memorandum was delivered to-~h~ Building Inspector requesting that a "stay be issued concerning the construction" until this Board of AppealS' application has been decided upon and further requesting his presence at a hearing of the Board to be held February 1, 1990 at 8:15 p.m. (together with delivery of copies of documents pertinent to the file); (1) On January 26, 1990 the Building inspector responded' , randum and suggested that.the Board, at ' ~n the Board of AppealS .me~?~ ~. Town Attorney'S Ass/stant to be ~is point, "get in ~Duc~ w/=n u,~= -- place to this point," brought uP-t°-date~'°n events which have taken and confirmed that a representatiVe from the Building Department will be present at the Board's February 1, 1990 hearing; (m) On February 1, 1990 the Building inspector, was personally served with copies of the Notice of Petition with Exhibits filed with and under consideration by the Board of AppealS; · 1990 the first of three hearing~ were (n) On February ~. -_-.~ ,e which time the quest/on of held by the Appeals and Zon/ng Du=~, -- discussed at length between jurisdiction of the Board of Appeals was the attorney for the property owner, the Board of Appeals members, and the applicant(s)- The hearing was recessed to another date in order to consult with legal counsel- Before continuing with the other .... ~. an~roDriately within the juriSdiCtion two hearings, it was ~eeme~u~ ~e ~pl~cation was timely m~de,~g of the Board..of Appea£s; _=~ of the construction of the £ounuau~u~,, filed w/thin 15 to 2U oa~ ==_ ~,,, ~vnund construction was been . filed approxlmate£y zu u~x - . · · Derlod of time that the subject build- commenced, and f/led w/th/n t~e [=_~ ~re not unreasonable time per/ods ing permit was pending, all_or ~e~ of this Board. based on past precedents anO pta ,'. /~ -Appl. ~o. 3908. ,~ication of Ochsenre~ter & LenceSki /~A D'ecisiOn Rendered Mey 15, 1990 REQUESTS UNDER M.B.A- APPLICATION 4. By application No.,3908 filed january 19, 1990, the follow- ing requests ~re under cons~deration~ · 'on of building inspector in grantxng . ~4n~ xe ~u ~ _~. ownerenXp -~ich the new owe~=~_ .inule and separ~= ~.__ ~00-281A(7~, eu~. w,,_ ~-s not been he£u ,~- -_ ~--ticle XX~V, Sec=lu~, ~ Re..real that the property,: of NO. 18355 ~or, ~ .-- ~n~13% and Bulk scheu , ~rantlng Permi~ . ..~a ~ectlOn ·uu-~°~ ' __ ~.. lot area, width ~ ~ _ ~ ArticLe ~o, ~ , .... .e~ulremen=~ the Zoning Coae as and depth~ of building inspector in · (c) Reversal o~ determination that the property in queS- .... permit No. 18355 for the reason in this A-40 granting tion does not conform to the Bulk Schedule reqUirementS Zone District and does not comply with the reqUirementS o£ Article xX~V, section 100-244 of the zoning code as applies to noncon~orming lots legally in existence as of the date of that section (adopted~on or about February 15, 198~)= · ditional Certificate of . cant Land con ~ ~ ~ d Ave Maria u anC¥ dated Novem~.= -..~-ct Dremlses desCrlD= _= .=¥tituc~ Occ p - ' ~-r the ~J~ - - ~ ~6 Map o~ Soano (%Z17543; zu .... Man %1000-13~-~-~ ' ~ttituck, NY, county ~=~ = Lot 36). GENERAL HISTORY 1957 THROUGH 1989 in 5. On July 24, 1935 and prior to the enactment of zoning Southold Town, the Map of Mattituck Heights was filed with the ub4ect parcel, referred to as Lot ~36, is suffolk county Clerk- ~eaS50~ wide by 150' deep lot. shown on this 1932 Map .~ 6 - Appl. No. 3908 ~,~plica.tio. n of Ochsenreiter & Lenceski /~EA Decision Rendered May 15, 1990 GENERAL HISTORY (continued) 6. On April 23, 1957 the Southold Town Zoning Code and Zoning Maps were adopted, and from that point in time up until November 1971, the subject premises: (a) was lodated in. the A-Residential/Agricultural Zone District, requiring a minimum lot size of 12,500 sq. ft. per lot; and (b) was included in the "Excepted List of Subdivisions" which excepted certain subdivisions from the minimum lot size requir%ments (Map of Mattituck Heights of 1932, included); 7. During 1971 the zoning code and zoning maps were amended, and lots located in the A'-Agricultural/Residential Zone District were required to meet a minimum of 40,000 (instead of 12,500) sq. ft. for construction of a new dwelling. Also in 1971, the "Excepted List of Subdivisions" (Article I, Section 100-12) was modified, deleting the sub4ect MaD of Mattituck Heights, and, including but not limited to, adding others. It is noted that many other subdivisions preexisting of the zoning code which were also not town approved were not added to the "Excepted List" (examples are: Peconic Bay Properties Inc.; Reydon Shores of 1936; Founders Estates of 1927, etc.). ~ 8. In March 1983 the minimum lot size requirements was increased from 40,000 to 80,000 sq. ft. per lot, and again the "Excepted List of Subdivisions" at Article I, Section 100-12 was modified, and again the Map of Mattltuck Heights was not included. " 9. During 1989, the Zoning Code and Zoning Maps were amended, changing ~he zoning of the subject parcel from "A" (80,000) to "R-40" (40,000 sq. ft. minimum). There was no change at this"time in the "Excepted List of Subdivisions" at Section 100-12; the Map of Mattituck Heights and other similar subdiglsions (filed prior to zoning/1957). 10. At no time during the period from November 1971 to,,,. June 26, 1989 was there filed any record to show an intent to reseparate the subject merged parcels. The record is clear that the merger of the property (35&36)for this 18-year period remained unchanged. ,,.~ge 7 - App1. No. 3908 /'Application of Ochsenreiter & Lenceski ZBA Decision Rendered May 15, 1990 PRIOR ZONING APPEALS RECORD 10. There is no record of any prior application to the Southold Town Board of Appeals concerning a reduction in lot area or width or the set-off of this parcel from the adjoining parcel. 11. The division of any lot of a size 15,000 sq. ft. into two 7,500 sq. ft. lots has required consideration(s) from the Boar~ of Appeals since the adoption of the zoning code and zoning maps in 1957 to the present time (precedents in Town building department records and zoning board of appeals' records). HISTORY OF CHANGES OF OWNERSHIP 1945 - 1989 12. The subject property (referred to as Lot No. 36 on the Map of Mattituck Heights) was acquired by Paul and Helen Bittner by deed at Liber 5867 page 188 on November 19, 1965. The adjoining ~ property (referred to as Lot No. 35) was also acquired by Paul and Helen Bittner on September 5, 1945. (Approximately a year after the second parcel was acquired in common ownership, the Town Board adopted an "Excepted List of Subdivisions" and included Mattituck Heights.) Ih. On April 11, 1972, both Lot Nos. 35 and 36 were conveyed by single deed to Leonard and Ave Spano by deed at Liber 7140 cp 32. On this date, Lot No. 35 remained vacant land; and having been in common ownership together with the adjoining land (No.'36), for a total combined lot area of 15,000 from April 11, 1972 until June 26, 1989. Although the common ownership of the two contiguous Lot Nos. 35 and 36 merged the property into one nonconforming 15,000 sq. ft. lot with an existing one-family dwelling constructed thereon, there was no intent by the town or by the owners of this property during these 18 years to legally divide or set-off ~,500 sq. ft. (50' x 150') for the future construction of another dwelling. All the amendments of the zoning codes are clear that only one dwelling is permitted per legal lot'in the A and R~40 Residential Zone District. .' ~'i,cati~n of 0chsenreiter & Lenceski /hA Deciszon Rendered May 15, 1990 / CERTIFICATES OF OCCUPANCY OF RECORD 14. .Furnished in the record are the following Certificates of Occupancy: (a) Certificate of Occupancy (Pre-C.0.) issued March 1, 1972 by Buildlng Inspector H. Terry certifying that the adjacent "building located at Bayer Road, Mattituck Hts. Lot No. 35 and 36 ...conforms substantially to the requirements for one-family dwelling & housing code built prior to April 1957 ...and conforms to all of the require- ments of the applicable provisions of law ...issued to Mr. and Mrs. Paul Bittner, Owners... House ~505 inspected February 29, 1972 .... " (Lot No. 35 and 36 combined as noted therein totalled 15,000 sq. ft. in lot area). (b) Certificate of Occupancy (vacant land) issued Novem- ber 28, 1989 by Building Inspector V. Lessard concerning House #505 Bayer Road, Mattituck stating the following: "...M/O Mattituck Heights Lot 36 conforms substantially to the applicable provisions of the Zoning Code... premises are located in the 'A' Residential Agricultural Zoned Distrlct...YOU ARE HEREBY NOTIFIED that the above referenced lot may be built upon only after the issu- ance of a building permit and ,compliance with the fol~_0f~%nq requirements ... : (1) That the lot is held in single and separate ownership and has been held so prior to the adoption of any amendments to our Town Zoning Ordinance which may have increased the require- ments for lot width or area, or may have amended front, side ...setback requirements ..., (6) That the ~oard of Zoning Appeals approval has been obtained .... (Emphasis added) ~ 15. It is also noted for the record that: (a) the 1972 Pre C.O. was not a vacant land certificate and made reference to the dwelling as existed on both lots (35 & 36) at 505 Bayer Road; the total combined area is 15,000 sq. ft. (b) the 1989 Certificate of Occupancy is a vacant land ~onditional certificat~ making references to: (1) #505 Bayer Road, (2) the condition that Board of Appeal~ approval be obtained, (3) the condition that a search be filed to show that the lot was either a singls and separate lot or otherwise, and which search was not furnished as required. .' /2~cation of Ochsenreiter & Lenceski ,/,~ecision Rendered May 15, 1990 BUILDING PERMIT TIME PERIOD FROM AUGUST 1, 1989 TO THE PRESENT 16. There is no other record, to the best of this Board's knowledge, that there ever was any building permit filed or issued for the construction of a new (or second) dwelling on this tract of land (36). 17. The only building permit of record for a new dwelling as issued on August 8, 1989 was granted based upon an incomplete application form concerning premises at "565 Bayer Road." Questions #5, 6, 7, 10, 11, 12, 13, 14 and 15 were left blank~ however, sketched was a diagram indicating a proposed building envelope on a 50' x 150'-rectangular tract of land with setbacks. LACK OF APPROVAL(S) FROM THE TOWN OF SOUTHOLD FOR THIS PARCEL AS A SET-OFF DIVISION OF LAND 18. No information has been furnished for the record to show that an application is now pending or was previously made and ~ approved to re-separate the tracts of land referrad to as Lot Nos. 35 and 36 on the preexisting (1932) Map of Mattituck Heights to the Southold Town Planning Board; and Upon information and belief, no action wa~ taken by the Town Planning Board to approve or other- wise sanction this tract as a 7,500 sq. ft. lot in a grandfather or exemption clause separate and apart from the adjacent merged tract, also a 7,500 sq. ft. tract. 19. No action was taken by the Town Board from 197f to the present time in the Town Code to approve or authorize an exemption or grandfather clause comcerning this preexisting Map of Mattituck Heights, or Lot No. 35 and 36 as separate tracts of land. BUILDING INSPECTOR - BUILDING PERMIT APPLICATIONS ADMINISTRATION AND ENFORCEMENT 20. Article XXVIII, Section 281 of the Zoning Code clearly provides that "...No building permit shall be issued unless the proposed construction or use is in full conformity with all the provisions of this chapter and the provisions of all other applicable laws, ordinances, rules and regulations. Any building permit issued in violation of the provisions of this chapter shall be null and void and of no effect without the necessity for any proceedings, revocations or nullification thereof; and any work undertaken or use established / . /Fp,.l~cation of Ochsenreiter & Lenceski //Decision Rendered May 15, 1990 pursuant to the issuance of a permit in violation of the provisions of this chapter shall be invalid .... " 21. Article XXVIII, Section 100-281A(7) also provides: "...A. Applications. Every application for a building permit shall contain the following information...= (7) An application for a building permit for construction on a vacant lot which is not on an approved subdivision map shall be accompanied by a certified abstract of title issued by a title insurance company which shall show single and separate ownership of the entire lot prior to April 9, 1957. VARIANCES REQUIRED AT TIME OF ISSUANCE OF PERMIT 22. apparent have not has been Southold In considering many of the facts in this case, it is by this Board that the following areas of the zoning code been appropriately addressed or applied for, and no authority given to any other board, officer or employee of the Town of to waive or grant variances thereunder: (a) (c) (d) (References: Schedule, etc.) insufficient lot area (from 40,000 to 7,500 sq. ft. per lot) insufficient lot width (from 150 feet to 50 feet) insufficient lot depth (from 175 feet to 150 feet) insufficient side yard (from 15 feet to 14 feet) insufficient total sideyards (from 25 feet to 24 feet) Article IIIA- R40 Zone District, and Zoning Code Bulk VALIDITY OF BUILDING PERMIT 23. Pursuant to Article XXVIII, Section 100-281 of the Zoning Code, the subject building permit was issued in violation of the zoning code, as noted,'supra, and the permit must be deemed to be invalid, null, void and of no effect. · . ~./~e 11 - Appl. No. 390.8 . · / . i?ation oS Ooh enre ter & Lencssk ,/'Dec~'s~on Rendered May 15, 1990 OTHER CONSIDERATIONS 24. "In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted or maintained, or any building, structure or land is used in violation of this chapter (zoning) or of any other regulations made pursuant thereto, in addition to other remedies provided by law, any appropriate action or proceeding, whether by local process or otherwise, may be instituted or taken to prevent such unlawful eraction, construction or reconstruction, alteration ...maintenance or use or to restrain, correct or abate such violation or to pre'vent the occupancy of said building, structure or land or to prevent any illegal act, . conduct, business or use in and about such premises.,' (Reference: Zoning Code Article XXVIII, Section 100-286 - Remedies) (~phasis added) .... Z.B.A. DETERMINATION 25. It is the position of this Board that the permit in question is and was not a valid permit since the permit was not issued in conformity with certain provisions of the zoning code (Article XXVIII, Section 100-281) including but not limited to the following areas (see Findings of Fact, supra): . (a) Nonconformance concerning several area regulations under the Bulk Schedule (area, width, setbacks); (b) Lack of town approval concerning the re-separation of the northerly one-half from the southerly one-half of the subject land as two separate 7,500 sq. ft. lots (zoning code and subdivision code regulations); (c) Lack of evideuce concerning the requirements· of the zoning code as to proof of Single and separate Ownership and/or a deter- mination and/or interpretation by the Board of Appeals, particularly due to the substandards of the property, etc. ACCORDINGLY, on motion by Mr. Dinlzio, seconded by Mr Gosh- ringer, it wa~ · RESOLVED, that the Building Permit referred to as #18355 is HEREBY DETERMINED to be INVALID, thereby nullifying and voiding the effects under said permit; and BE IT FURTHER ' . ~f~e 12 -Appl. No. 3908 . ' /A_~p.li.cation of Ochsenreiter & Lenceskl /' Decls~on Rendered May 15, 1990 / RESOLVED, to GRANT the request under this Application for a REVERSAL of determination by the building inspector in the erroneous issuance of Building Permit No. 18355; and BE IT FURTHER RESOLVED, that prior to issuanca or reissuance of any building permit, certificate of occupa~%cy or otherwise, that further application(s) be for~,ally filed, through normal proce- dures, for consideration by the Board of Appeals, including but not limited to the following areas of the zoning code: (a) insufficient lot area~ (b) insufficient lot width; insufficient lot depth; (d) insufficient sldeyard setback at the easterly side; (e) insufficient total sideyards; (f) such other and further relief as may be deemed necessary under the zoning code (such as excessive lot coverage, etc.) ITS MAY 15, 1990 ACTION . f Southold Town Board of Appeals -9- May 24, 1973 buffers should be required. For instance, the lot where the little old house is has a lot of trees. There is another row of trees between that house and Smith's. I don't see why they ell have to be demolished. T~E CHAIR~L~N: I think you should be aware ~s. Tiedke that the existing parking lot does not have a buffer zone. THE CHAIR~LA_N: Are there any other questions? After investigation and inspection the Board finds that applicant requests permission to expand a new and used oar lot on premises located on the south side of Main Road, Southold, New York. The Board a~Tees with the reasoning of the applicant subject to site plan approval of the Southold Town Planning Board. The Board finds that the public convenience and welfare and Justice will be served and the leG~ally established or permitted use of neighborhood property and adjoining use districts will not be permanently or substantially injured and the spirit of the Ordinance will be observed. On motion by ~. Gillispie, seconded by ~. t~lse, it was P~ESOL%'ED~ Richard F. )~llen, Jr., 1835 Mill Creek Drive West, Southold, New York, be GRA~T~D permission to expand a new and used car lot located on the south side of )~in Road~ Southold~ as applied for~ subject to the following conditions: 1. That on the southerly boundary of Lot No.1, a bufferi strip of 10 feet of presently maintained trees be maintained.~,. 2. Subject to site plan approval of the Southold Town Plannin~ Board. Vote of the Board: Ayes:- Messrs: Gillispie, Bergen, Hulse, GrigoniSo P~/BLIO }~ARING, Appeal No. 1770 - 8:15 P.M. (E.S.T.), upon application of Lorraine W. D~ary, 138-71st Street, Apt. D-7, Brooklyn~ New York, for a variance in accordance with the Zoning Ordinance, Article III~ Section 301 and the ~k Sched%~e, for permi~sien to divide lots wi~h less than required area. Location of property~ Lots 22 and 23, Map of Mattituck Estates~ Mattituck, New York. Fee paid $15.00. The Chairman opened the hearing by reading the application for a variance, legal notice of hearing, affidavits attesting to its publication in the official newspapers~ and notice to the applicant. Southold To~m Board of Appeals -10- May 24, 1973 ~{E CHAIR~N: Is there anyone present who wishes to speak for this application? ]~LLIAM ESSEX, ESQ.: My clients houcht Lot #23 in 1968 and bullt a house on it. A couple of years later they bought I~t No. 22 and put it in Mrs. Dr~lry's name. I ~ave a Deed showing they ~ere purchased in si~cle o%~nership, Now, with the death of Mr, Dr,~ there is a mortcace. T~ CHAIR}L~N: This is an approved subdivision map. These lots are all one half acre or better. MR. ESSEX: It would be a g~eat hardship if my client could not divide the lots. T~E Ct.~IRMAN: Is there anyone present who w~shes speak against this application? There was no response.) to After investigation and inspection the Board finds that applicant requests permission to divide lots with less than required area, I~ts 22 and 2~, Map of Mattituck Estates, Mattituck, New York. Tl~e findings of the Board are that this is an approved map and that the lots are o~e half acre or better. The Board agrees ~¢ith the reasoning of the applicant. The Board finds that strict ~pplication of the Ordinance 1~o%~ld produce practical difficulties or u~lnecessar"/ hardships the hardship created is ~mique and ~nld not be shared by all ~rope~ties alike in the imm~iate vicinity of this property end in the same use district~ and tbs variance will not chmnGe the c~acter of the nei~hborhood~ ~nd will observe the spirit of the Ordinance. On motion by Mr. Grigonis, seconded by Mr. }~llse, it ~as RESOLVED, Lorraine ~. Drury, 138-71st Street, Apt. D-7, Brooklyn, New York, be GRANTED permission to divide lots ~th less bhau required area, Lots 22 and 23, Map of Mattituek Estates, }~tbituck, Hew York~ as applied for. Vote of the Board: Ayes: Messrs: Gillispie, Bergen, ~lse, Gri~onis. Itl Town Attorne~ Assistant Town Attorney OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD SCOTI' L. HARRIS Supervisor Town Hall. 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 INTER-OFFICE MEMORANDUM FROM THE TOWN ATTORNEY'S OFFICE TO: FROM: DATE: RE: Gerard P. Goehringer. Chairman. Zoning Board of Appeals Members of the Zoning Board of Appeals Matthew G. Kiernan. Assistant Town Attorney March 21. 1991 Inland Homes v. Goehringer, et al. As I have previous advised Linda Kowalski. we have received a Memorandum Decision from Judge Baisley with regard to the above-referenced Article 78, A copy of Judge Baisley's Decision is annexed hereto for your review. The crux of the Court's Decision is found on page 5. which states that the Petition is granted, the ZBA's resolution is annulled and the proceeding is remitted to the Zoning Board for purposes of directing the Building Inspector to reinstate the building permit, Judge Baisley's Decision is based on his findin9 that the appeal to the Zoning Board by the aggrieved property owner was untimely. Specifically. the Judge found that the delay of over 3 months, from October 17. 1989 the date when the aggrieved parties had notice of the issuance of the building permit, to February 1. 1990 the date when the aggrieved parties filed their notice of appeal. durln9 which time Inland Homes erected the foundation and commenced the framing of the building, is. standing alone, unreasonable, Judge Baisley also correctly pointed out that the Zoning Board has failed to establish a time period within which an aggrieved party must appeal a determination by the Building Inspector as required by Town Law Section 267 (3). Since receiving the decision I have been assisting Linda Kowalski on drafting a rule which would satisfy the requirements of Town Law. Petitioner has advised that a proposed Judgment will be submitted for Judge Baisley's signature on March 25. 1991. Until we are served with a signed copy of the Judgment with Notice of Entry, technically, this decision is not in effect, We will advise you upon being so served, Should you have any questions with regard to Judge Baisley's Decision, or its impacts, please feel free to contact me. cc: Town Board MEMORANDUM SUPREME COURT, SUFFOLK COUNTY INLAhD HOMES, INC., Petitioner, For a Judgment pursuant to Article 78 of the CPLR, against GERARD P. GOEHRtNGER, Chairman, CHARL~q GRIGONIS, JR., SERGE DOYEN, JR., JOSEPH H. SAWICKI, JAMES DINIZIO, JR., Con- stituting the SOUTHOLD TOWN ZONING ROAR[ OF APPEALS, ResDondents. SPECIAl TERM BY BA~SL~Y J.S.C. DATED FEBRUARY 21, 1991 IhDEX #90/14214 Ref. Date 11/2/90 CDISPSJ 19 PACHMAN & OSHRIN, ESQS. Attorneys for Petitioner 366 Veterans ~morial Highway P.O. Box 273 Ccamack, New York 11725 HARVEY A. ARNOFF, ESQ. Attorney for Respondents 53095 Main Road Southold, New York 11971 In this proceeding pursuant to CPLR Article 78, the petitioner seeks review of a decision of the respondent zoning board of appeals (the "Board") which reversed the determination of the ~Building Inspector of the Town of Southold (the "Building Inspector") to issue a building permit to the petitioner. The Board's decision, date~ May 15, 1990, granted an appeal by certain aggrieved property owners, reversed the Building Inspector's determination to issue a building permit to the petitioner, and invalidated the building permit issued to the petitioner. The petitione~ challenges the Board's decision on t~o grounds. First, the petitioner contends that the Board's decision is based upon an untimely appeal of the Building Inspector's determination to issue the building permit by the aggrieved property owners. Second, the petitioner asserts that the Board's decision is arbitrary and capricious, since it is not supported by findings or by the evidence in the record. The decision of the Board is annulled and this proceeding is remitted to the Board for the purpose of directing the Building Inspector to reinstate the petitioner's building per~.'.t. The facts underlying this proceeding are as follows. On August 8, 1989, the Building Inspector issued a building permit to the petitioner for the construction of a single family al~lling at 565 Bayer Road, Mattituck, New York. On August 30 and August 31, 1989, the petitioner excavated the property and prepared the footings for the building's foundation. By letter dated October 17, 1989, an attorney retai~ed by certain residents in the area of the petitioner's property wrote a letter to the Southold Town Attorney questioning whether the petitioner's parcel was a valid building lot. The residents did not submit any objections to the Building Inspector or to the ~oard. By letter dated December 11, 1989, the Southold Town Attorney stated that the building permit issued to the petitioner appeared to be valid, but noted that the final interpretation of the zoning code was within the province of the Board. Early in January, 1990, the petitioner erected the foundation for the structure. On January 15, 1990, the petitioner commenced the framing for the building. On January 19, 1990, the above mentioned residents filed a notice appealing the Building Inspector's decision with the Board and the town clerk. On February 1, 1990, the aggrieved residents served the Building Inspector with the notice of appeal. On February 1, 1990, the Board co~nenced a series of hearings on the appeal. After the first hearing, the Board concluded that the residents filed their appeal in a tir~ly manner pursuant to the past practices of the Board, since they filed their notice of appeal with the Board within twenty days after the petitioner erected the foundation and co~nced framing the building and while the building permit was still valid. The Board failed to establish a tim~ period within which an aggrieved party must appeal a determination by the Building Inspector as required by Town Law §267 (3). By failing to prescribe such a period for appeals, the Board deprived both the petitioner and the aggrieved property owners of the knowledge of when the Building Inspector's decision to issue a building permit to the petitioner became final. See, Maroney v. Friere, 74 Misc. 2d 339, 343 N.Y.S. 2d 183 (Sup. Ct., Westchester Co. 1973). Furthermore, by failing to specify a general time period for appeals as required by statute, and by deciding the timeliness of appeals on a case-to-case basis, the Board acted arbitrarily and capriciously and in excess of the authority granted to it by Town Law §267 (3). See, Id.; Ehrenberg v. Persons, 8 A.D. 18, 185 N.Y.S. 2d 369 (4th Dept. 1959). In failing to prescribe a time period for appeals pursuant to the statute, the Board divested itself of the power to determine the timeliness of appeals from determinations of the Building Inspector. See, Ehrenberg v. Persons. 2 A~cordingly, the determination of the Board that the aggrieved residents' appeal of the Building Inspector's decision to issue a building permit to the petitioner was timely is arbitrary and capricious and in excess of the authority granted to the Board by statute. The Court must now deten~ine, without reference to the determination of the Board, whether the appeal to the Board of the Building Inspector's determination to issue a building permit to the petitioner was timely. See, Ehrenber~ v. Persons; Cave v. Zoning Buard of Appeals of Village of Fredonia, 49 A.D. 2d 228, 373 N.Y.S. 2d 932 (4th Dept. 1975), appeal denied 382 N.Y.S. 2d 1030. The determination of whether the appeal was timely is governed by a standard of reasonableness. In deciding whether the appeal to the Board was timely, the Court must consider the date upon which the appealing parties were chargeable with notice of the issuance of the building permit to the petitioner, the tim~ within which the appealing parties made their appeal, and whether any action by the petitioner or the respondents caused or contributed to any delay in taking the appeal. Id. In the instant proceeding, the aggrieved residents who appealed to the Board clearly had notice of the issuance of the petitioner's building permit on October 17, 1989, the date upon which their attorney wrote a letter to the town attorney regarding the petitioner's building permit (in fact, it would be reasonable to charge the aggrieved residents with notice of the issuance of the petitioner's building permit on August 31, 1989/ the date that the footings were prepared after the excavation of the property). However, the aggrieved owners did not appeal the Building Inspector's decision to issue the petitioner's building permit until February 1, 1990 (the date on which they filed their notice of appeal with both the Board and the Building Inspector). See, Town Law §267 (3). The delay of over three months, frcm October 17, 1989 to February 1, 1990, during which time the petitioner erected the foundation and' co~nenced the framing of the building, is, standing alone, unreasonable. · The respondents contend that the aggrieved residents' delay in appealing to the Board was justified by and was the result of the fact that the Town Attorney did not respond to their letter dated October 17, 1989 until December 11, 1989. In support of this prcposition, the respondents cite Matter of Pansa v. Damiano, 14 N.Y. 2d 356, 251 N.Y.S. 2d 665 (1964). In Pansa, the petitioner challenged the issuance of a building permit to a neighboring property owner. -3 - After learning of the issuance of the permit, the petitioner met with a number of city officials, including representatives of the building department, which issued the permit, and demanded, that the city revoke the permit. Thereafter, at least one city official told the petitioner that he would be informed of the board's decision on his demand that the city revoke the permit and that he could appeal the decision to the board of appeals. On the day the petitioner received notice that the city would not revoke the permit, he appealed to the board of appeals. The Court of Appeals held that, on the facts presented, the petitioner was not required to appeal to the board of appeals until the city rejected his demand for revocation of the permit with some formality. The Court's holding in Pansa does not control the outcome of this proceeding for a number of reasons. First, the aggrieved residents in this proceeding, unlike the petitioner in Pansa, never requested that the town revoke the petitioner's permit before they appealed to the Board. Instead, on October 17, 1989, the aggrieved residents wrote a letter to the town attorney in which they questioned whether the petitioner's property was a buildable lot. Even if the Court were to consider the letter as a request or demand for revocation of the petitioner's building permit, the aggrieved residents did not address the demand to the Building Inspector, the offical who issued and who could therefore revoke the permit. The town attorney does not possess the power to revoke a building permit or to reverse a decision of the Building Inspector. Furthern~re, unlike the petitioner in Pansa, neither the respondents nor any town official induced the aggrieved residents to delay an appeal to the Board until after the town attorney answered their letter. As a result, the fact that the town attorney,~ in his response to the aggrieved residents' letter, noted that the final interpretation of the zoning code was within the province of the Board does not provide any excuse or justification for the residents' delay in appealing to the Board. Finally, in contrast to the petitioner in Pansa, the aggrieved residents herein did not file their notice of appeal pursuant to Town Law §267 (3) until February 1, 1990, over a month after the town attorney's response to their letter. This delay, in inself, is unreasonable. Accordingly, the aggrieved residents were not justified in waiting unti% after the town attorney answered their letter before appealing to the Board. -4- In view of the foregoing, the petition is granted, to the sole extent that the decision of the Board reversing the Building Inspector's detrmination to issue a building permit to the petitioner and invalidating the building permit is annulled and this proceeding is remitted to the Board for the purpose of directing the Building Inspector to reinstate the petitioner's building permit. Settle judgment. TOWN OF $OUTHOLD BUILDING DEPARTMENT TOWN HALL SOUTHOLD, N. Y. C BUILDING PERMIT (THIS PERMIT MUST BE KEPT ON THE PREMISES UNTIL FULL COMPLETION OF THE WORK AUTHORIZED) NO_ ~8355 Z D~o ...~,~.....~... ....................... , .? Permission is hereby granted to: .,~ - / ' r ..~J~...?Y.~~..~ · ~..../.~...~..~~ ....... · · . ~.~...._~.~,.~.z./.~~ _ t p mise$ Iocot~~'.~.~.....:...~.~...~~ .......................... ............................................ .~~.~,.....~:,.....~ ................................... ........................................................... L.I_..~ .......... ..P..., ....................................... , ............................... County Tox Map No. 1000 Section ...,/...~......~.. .... Block --3. ........... Lot No ...... Z....~... ....... pursuant to application dated .......... ..~.......~.... .............. , 19..~...~and approved by the Building Inspector. Rev. 6/30/80 upprovod Wc ................... ~ ................. · 3 gETS OF(~.~N$ o~.... ..... ~ORU NO. ~ SURVEY... ,, TOWN OF SOUTHOLD CHECK : ~ · ' BU[LDINGOEPARTMENT SEPTIC FORH .......... ~ ~..= TOWN HALL (Building Inspector) APPLICATION FOR BUILDING PERMIT :'' Date . AqgUa. t; .2 ........ 1~89. INSTRUCTIONS : ' a. Tlds appBcaBon must be completely t'dled in by typewriter or in ink and submittod to the Building Xuspector, with 3 ~ of plans, accurate plot plan to scale. Fee according to schedule. b. Pint plan showing location of lot and of buildings on premises, relationship to adjoining premises or publinstteets ~reas, and giving a detailed description of layout of property must bo drawn on the diagram wliich is part of ~ appil- c. The work covered by this application may not be commenced before isanance Of Bulldin'g Permit." ': d. Upon approval of this application, the Building Inspector will issued a Budding Permit to she applicant. Suda permit :il be kept on the preraisee available for inspection througho~tthe work. e. No budding shall be occupied or used in whole or in part for any purpose whatever until a Certificate of Occupancy ill have been granted by the Building Inspector. A?PLICATION IS HEREBY MADE to the Building Department for the issuance of a Building Permit pursuant to the ildlng Zone Ordinance of the Town of Soushold, Suffolk County, New York, and other applicable Laws, Ordinances or gulations, for the construction of buildings, additions or alterations, or for removal or demolition, as herein described. ~. applicant agrees to comply with all applicable laws, ordinances, building code, housing code, and regulations, and to nit authorized inspectors on premises and in budding for necessary inspections. (Signature of a~pilcant, or name, if a corporation) (Mailing address of applicant) ~tc wbether applicant is. owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or builder. ....... Oenez'a! Contz'act;o~- :me of owner of premises .. -~l~.da'q'-D -HOlVi~3 f - ~ ~ .................................................. (as on the tax roll or latest deed) 'tpplicant is a corporation, signature of duly authorizod officer. (Name and title of corporate officer) · Builder's License No .......................... Electrician's License No...~63~.t1 .... i ......... Otller Trade's License No ...................... ' Location of land on wblch proposed work will be done~ . ~e-5'. ~.REeI'. ~clitt[.~..I~al;~;~tgl¢lC,..~p. ~n IlouseNumber ,, Street . Hamlet ... Co,un._ty Tax Map No. 1000 Sec ion i'J. L}.cJ ........... 'lllock ... 3.. Lot...:~l'.~.'.. ] .... i .... Subdivision... t'la. tgt truck .Heights .............. Filed Map No .... l.c~. ..... Lot .... .~..... .... (Hame) " State existing use and occupancy of premises and intended use and occupancy-of proposed construction: Existing occupancy ......... ,~.~.~..,,, '. ...... : ................... use and b. Intended use and occupancy ...... l .~a~_l.3r. Dw.e[1.11~ ......................................... Repair ........... .1 Removal .............. Demolition .... · .... ..~, . OlberWotk ............. ..... a (to be paid on Fd~g this appli~tion) ~. If dwelling, number of dwelling units ............... ~umber of dwelling unRs on each fl~r ............. 6. ff busincss, commercial or mixed occupancy, specff~ natu~ and extent of cach type of use .................. lleight ............... Numar of Sto~es ..................................................... Depth ...................... Heine ...................... Number of Sto~es ................... 8. Dimensions of entire new construction: Front ... ~ ~.... ..... Rear ... ~. ~. ....... ~pth ... ~ .~. .... Height .../.~ ...... ~Number of Sto~es .... .~ ............................................ 9. Size of lot: Front .... ~ -~:-; ........... Rear ..... ~ ............ Depth .... I ~ ~. I I. Zone or use d~trict in which premises a~ situated .................................................. 12. Does proposed co,s~uction violate any zo~ng law, otdinanc~ or regulation: ............................. 13. Will lot be regtaded ............................ Will exce~ fill be removed from p~mises: Yes 14. Nmne of Owner of prem~ .................... Addt~ ................... Phone No ............. Nane of Architect ........................... Addre~ ................... Phone No...; ......... Nmne of Contractor ............ ' ............ Add~ .... : .............. Phone No ..... ; ....... 15. Is chis proper~y located within 300 feet o~ a tidal ~e~land~ *Yes ..... , No ..... Locate cfe~]y ~d dJs~ctly ~l buUd~, whether ~xisting or proposed, and. indi~te ~1 ~t-back d~emions fr property Uncs. Give strget ~d block number or description accord~8 to deed, ~d ~ow strut n~es ~d ~di~te whet interior or comet lot. ' ' ~ ~ ~c~' ~...: S'r~TE OF ~E~ YORK, {~am~ of individual ~igning (Contractor, agent, corporate offic~r, etc.) of said owner or owne~, ~d is duly authot~ed to perform or have performed the ~id work and to m~e and ~le t appticatio,; Ihnt all statements contained ~ this application ~te true to the best o[ his ~owled~ and belief; and that t work wUl be performed in the m~ner set fotO~ in the application ~led therewith. Not~ Public SCTIC Incorporated "FOR SUFFOLK COUNTY TITLE INSURANCE" BOX 1269 · RIVERHEAD, NEW YORK 11901 · (516) 727-4270 d ~//-'72. ( SCTIC Incorporated "FOR SUFFOLK COUNTY TITLE INSURANCE" BOX 1269 · RIVERHEAD, NEW YORK 11901 · (5161 727.4270 .~i~D~ll~R~m~k~ ~ 6myol June ,~lnmdmdm~l elqhty-nlne ~ ~. ~ONA~D F. SPANO and AV~ N. RI'ANO, his wl~e, ~th resl~lnq at 50~ Bayer Road, Nattltuck, Ne~ York 11952 99,'Fa 10S 1 107 All thst certain plot, pie~s or parcel of land, with bulldinq~ there on ~rected, situats, lying end being at Rattituck, t~n of Sct~thold. Suffolk County~ N~ ~k~ and desl~ as lot ~5 on '~nd~ ~p of ~t~ltu~k Heiqh~l, p~y o[ ~stav ~r at Na~ltuck, Suffolk County, ~ ~urk' and fil~ in th~ Sufiolk County Clerks office on Jul~ 24. 193~ as map ~1184, vhich said 1o~ ~rtlcularly ~und~ and deacrl~ as foll~s lots 13S and ~ 36 on the 4~ ~p vhLch said ~/nt of ~qlnninq LB l~a~ed on the no~hezly side of ~r Road dlstan~ 150.00 f~ ~.t, of the *inter,~tlon of the southerly side of Gran~ Blvd. ~lth the ~s~erly lids R~ING ~ENCE south 31 degass 04 m~nutel 30 B~ond. Of the north~sterly side of ~r Road, i distance of 50.00 ie.t to ~int ~arklnq ~he division line of the ~rein descri~ 1o~ and lot ~34. llld division line a distance of IS0.00 f~ L8 a ~NCE north 31 degrees 04 mlnu~es 30 a~ondq east a d/ltance of 50.00 f~t to a ~ln~ ~arking tL. division line the division l~'e of lo~s 135 and I 36 a distance of 150.00 iht to Lhe ~in~ or place of B~I~ ~D I~ENDED Lo "e par~ of ~he sM pre,lei to {~lrtiel of the fir.. ~rt ~ de~ dat~ April 11, 1972f · ~ ~,co~ In ~he Office of ~he Clerk of ~he County 8~ftolk on ~ril 12~ 197:~ Ln L~F 7140 Page 32. SUFFOLK et. d~y~ 3une 1~89, ~t~v~ ~.~.~onard: r. Spano ~d June, Ave N. 5pano '=..?,..~,. ~'OffARD F. SPANO and AVl Iq. SPANO. ht~ vl~e, both ['ef~t.d:rLflq at 39949 qf/l'lqH~SS~'Tl~ thil the pl~. of th~ 6rl~ p. fi, in emlsklerilkm of I~fd mom? the ~ of All that certain plot, piece or parcel of lend, with the buildings ~hereon erected, situate, lying and being at Nattltuck, Town of Southold, Suffolk County, Re~ York, kno~m end designated ss Lot 13& on °P~uend,~ Map of Mattituck Heights, ProL~rty of Gustav Baye~. ·t Mattltuck, SuffolY County, New York' and fried in the Suffolk County Clerk's Office on July 24, 1935, as Ma[ 11184, ~hJch said lot Is morn particularly bounded and described as follov8~ BEGINNING ·t n point on the northwesterly side of Bayer Woad, where sa~e is intersected by the division line botwe~fl Lots ~16 ·nd f37 on the above map, which snid point of {~Jlnnzng il locsted on the northwesterly side of Bayer Road, distant of 100.00 feet west of the Intersection of the southdrly ~lde of Grant Blvd., w~th the westerly side of Bayer Road; m~qHlNG~l!.ERCE South 31 degrees 04 minutes 30 seconds West, ~lonq the northw~ater)¥ side of Bayer Road, · distance of 50.00 fewt to n point marking the division line of heroin described lot and Lot THENCE North 58 degrees 55 minutes 30 seconds #est, ·long the division line of Lots #35 and J36 · distance st TllENCE North 31 dJgrees 04 minutes 30 se~.onds East, 50.00 fe~t to · point marking the division lln~ st Lots #36 and i~ll~:E South 58 degrees 55 minutes 30 seconds East, along the division line of Lots ~36 and #37, ~ distance o! 150.00 f~t to tho point or pinch ~! BEGINNING. MING A~D INTENDED to bo part of the same premises conveyed to iMirtlos of the first pert by deed dated April 11, 1972, · nd recorded In the Office of khe Clerk of the County of Suffolk on April 12, 1972, in Libor 7140 Page 32. 3une 19 89, befo~ me f. eottat;d Fo Spano 19 . beto~ me the day o( 19 , berm me Richard F. ~ark, E$~. Naln Road - Box 973 Cut~hoque, New York 11935 O~:'_CE OF BUILDING INSPECTOR P.O. BOX 1179 TOWN HA~J. ~UTHOLD, N.Y. 11971 VACANT LAND ~--=RTIFICATE OF OCCUPANCY .-5-7.--~ 765-1802 NO. Z-17543 DATE NOVEMBER 28~ 1988 Location of Property 505 BAYER PJ). MATTITUCK~ NEW YORK NUDGER STREET HAMLET COUNTY TAX MAP # Section 139 Block 3 Lot 14 SUBDIVISION M/O Mattituck Eei~hts Filed Map # Lot 36 conforms substantially to the applicable provisions of the Zoning Code of the Town of Southold. The Premises are located ~.- the'A'RESIDENTIAL AGRICUL'I~Y~%L Zoned District. YOU ARE HEREBY NOTIFIED that the above referenced lot may be built upon' only after the issuance of a building 'permit and compliance with the following requirements of the Town and the rules and regulations of such additional State and Coun~f agencies or regulations thereof that may be applicable. 1. That the lot is held in single and separate so held prior to (he adoption of any Ordinance which may .have 'increased area, or have emended front, side, 2. That if this lot is si~d within an necessary road, dra/r.~ ~e, ~nd other rs completed in accord w2th Re rules and Board and those of th H~hway Department 3. sep~C~systems. Health Department That~he lot received Thft t~e Department 4. °b~d' Environmental 5. That the Board of Trustees approval and has been to our Town Zoning ents for lot width or set back requirements. subdivision that all improvements have been of the Planning the Town of Southold. royal as to water and servation approval has been been obtained. 6. That the Board of Zoning Appeals app has been obtained. YOU ARE FURTHER NOTIFIED that this Bui Department ~as made no independent determination as to the applJ :ability of any one or all of the above in issuing this Vacant Lot Certif ~te of Occupancy. The Certificate is issued to: of the aforesaid lot. LEONARD F. & AVE MARIA SPkNO (_owner, XXXXX~GC~/~ ) ' BU~i~N~ INSPECTOR Rev. 12/29/87 cKKTIFIED MAIL/R~T~RN RECEIPT P 163 053 050 JEFFERSON INSURANCE COMPANY OF NEW YORK HARBORSIDE FINANCIAL CENTER--702 PLAZA 3 JERSEY CITY, NEW JERSEY 07311-3892 TEL. (201) 433-7677 TELEX: 132 511 L ...... July 26, 1990 The Yown of Southo] 53095 Main Street Southold, N.Y. 11971 Att: Scott F. Harris, Claim No. Insured Claimant Pr~idinq Official /~O_wn of Southold Inland Homes I~nc~or~o~ated Dear Sir: cc: Town Board Town Attorney Chief of Police SGup, t~, of Highways . n~'~'lncl & $outhwicK Wm. F. l~ullen, J r. Building Dept, _Appea. ls B~oard. ~'lannlng I~oaro The Jefferson Insurance Company acknowledges receipt of a Request For Judicial intervention filed in the Supreme Court of Suffolk County. We have established a file under your Public Officials Liability policy, JPO430306, incepting 1/1/90 to 1/1/91. There is a $10,000 deductible which applies to indemnity as well as expense payments. A review of the correspondence received indicates that the notice of petition is returnable on August 24, 1990. The petition seeks relief under Article #78 for the reversal and annulment of a decision by the $outhold Town Zoning Board of Appeals. In their decision, the Zoning Board of Appeals found that the building permit issued to Inland Homes on August 8, 1989 was defective and therefore void. Jefferson Insurance Company does not imply that the allegations within the petition are correct but brings the issues to your attention as the basis of our declination of coverage. With this in mind your attention is directed to the Public Officials policy issued to Southold effective 1/1/90. Specifically you are requested to review Exclusion "D" as amended and endorsed under endorsement number GPO2178 which reads as follows: A MEMBER OF THE ~ GROUP Scott F. Harris July 26, 1990 Page (2) EXCLUSIONS D "This policy does not applyto any claim: D. Based upon or arising out of condemnation of any form, adverse possession'~ dedication by adverse use, for any zoning~or land use statute~ ordinance~ rule~ regulation or restriction, or any regulatorY, takings;', In addition, the complaint seeks injunctive relief. Therefore you are requested to review Endorsement L of this policy which reads as follows: EXCLUSION L "This policy does not apply: L. Based upon or arising out of demands or actions seeking relief or redress in any form other than money damages including but not limited to claims for injunctive relief in any form whatsoever;" Based on the facts as outlined in the petition as compared to the exclusionary language of its policy, Jefferson Insurance Company concludes that there is no coverage for this loss. However, should a civil action complaint be filed upon you seeking damages, the Jefferson respectfully requests to review the complaint and comment on the coverages provided by its policy. Presently, Jefferson expressly denies coverage for the above captioned action. Therefore, we will be unable to tender a defense for the Request For Judicial Intrevention, nor will we be responsible for the expenses related to this action. Should further questions arise, I am at your disposal. Scott F. Harris, July 26, 1990 Page (3) Sinceel~// Regi~asale~ne Casualty Claims Analyst cc: Smith Special Risk Associates Incorporated #1 Blue Hill Plaza Suite 1800 P.O. Box 1745 Peril River, N.Y. 10965 Att: Debbie Gardenier Scott Harris, Town Supervisor Town of Southold Southold Town Hall 53095 Main Rd. Southold, NY 11971 July 6, 1990 Dear Mr. Harris: Enclosed is a copy of a Zoning Board of Appeals decision rendered May 15, 1990 and mailed to me on June 6, 1990 concerning a recently constructed house on Bayer Road in Mattituck. As of this date, it appears that the Town has taken no action beyond what is contained in the ZBA proceedings. To the best of my belief, a Certificate of Occupancy has been issued for the house and, also to the best of my belief, this is still in effect. The house is being actively advertised for sale as, again to the best of my belief, a mother/daughter (~). I expect that the Town of Southold will enforce its laws without requiring me to incur legal fees beyond what I have already spent. I am herewith requesting that the Certificate of Occupancy issued for a house built with a building permit deemed "...invalid, null, void and of no effect." be withdrawn and that the Town of Southold take further action to ensure that the value of my property, located directly across Bayer Road from the subject house, will not be reduced. cc: Gerard P. Goehringer, Chairman ZBA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHOLDO~OWN ZONING BOARD OF APPEA9 COUNTY OF SUFFOLK : STATE OF NEW YORK SOUTHOLD TOWN ZONING BOARD OF APPEALS PUBLIC HEARING, in the matter of ROBERT OCHSENREITER and EDWARD LENCESKI, Applicants. Main Road, Route 25 Southold, New York February 1, 1990 8:15 P.M. BEFORE : GERARD P. GOEHRINGER, Chairman. APPEARANCES : ANTHONY TOHILL, ESQ. Attorney for Proparty 0wners 12 First Street Riverhead, New York BOARD MEMBERS: SERGE DOYEN, JR. CHARLES GRIGONIS, JOSEPH H. SAWICKI JAMES DINIZIO, JR. JR. Appl. No. 3908 11971 11901 10 11 12 13 14. 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 2 THE CHAIRMAN: The next appeal, and I will read the legal notice before we take any testimony: Robert Ochsenreiter and Edward Lenceski, Appeal Number 3908, and the legal notice recieved upon App1. 3908. Variance for reversal of building permit to construct a one family dwelling. Property location: 565 Bayer Road, Mattituck, County Tax Map Number 1000, Section 139, Block 3, Lot 14. The applicants have provided me with a survey, which is from Robert Van Tuyl, P.C. I don't see a date on it. Yes, ! do. March 30, 1972. The nature of this appli- cation is for the existing building permits on the house as partially constructed on Bayer Road in Mattituck. It is on a 50 by 150 foot lot. I have a copy of the Suffolk County Tax Map indicating lng properties in the area. Is there anyone that would heard? MR. TOHILL: senting the property owner. this and surround- like to be I am an attorney repre- I intend t~is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 evening to make a series of applications to the Board challenging the ability of the Board to hear the application for jurisdic- tional reasons, of housekeeping, proceed? Would and I am wondering, in terms how you would like to you want me to do that first? Would you want to hear from the objecting petitioners first? I would like, for reasons that hopefully never become apparent in this room, not to reach the merits of this matter tonight. THE CHAIRMAN: That is the reason why I called on you first, Mr. Tohill. Let me ask who is representing the two applicants, and see how that counsel feels if counsel is representing Mr. Ochsenreiter. Are you represented by counsel? MR. OCHSENREITER: We are not. THE CHAIRMAN: Would you like to hear your case first since you have brought this application before us? MR. OCHSENREITER: Yes. MR. TOHILL: Am I correct in saying you are reserving my right to challenge the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 jurisdictional questions without reaching the merits? THE CHAIRMAN: I would say yes. MR. TOHILL: Thank you. MR. OCHSENREITER: My name is Robert Ochsenreiter. I live at 600 Bay Road, in Mattituck, and I am one of the signatories of the petition that is before the Board. I think the merits, as far as we are concerned, are contained in this. I would like to say we feel it is we who suffer a financial loss to the reduction of property values by having a rather large house on a rather small lot constructed directly across from us. THE CHAIRMAN: Can I ask you just a couple of questions, Mr. Ochsenreiter? MR. OCHSENREITER: Yes. THE CHAIRMAN: There appears to be a time period between the actual inception of the start of this particular premises and the time that you have brought this application before us. I will be honest with you. I observed that there was a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 period of time that just the existing foundation was placed in the ground and stayed there for a period of time before the actual construction co~m~enced. Is there any particular reason why you waited until they actually started the wood framing of the house? MR. OCHSENREITER: I contacted Mr. Ross of Wickhkam, Wickham and Bressler in ... I believe it was October. I cannot be sure of the date. He did contact Mr. Schondebare concerning it. I lef% it in his hands until the above-ground construction started on January 15, which was a holiday. THE CHAIRMAN: You want to say for the record Mr. Schondebare was not ... I don't know if he was the attorney at the actual start of that construction. What was the date of your letter? MR. OCHSENREITER: December 11, 1989. THE CHAIRMAN: He was the attorney at that particular time. Could I have a copy of that letter? MR. OCHSENREITER: Sure. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 THE CHAIRMAN: I in the file. MR. OCHSENREITER: copy I yOU. have. THE CHAIRMAN: think I may have one This is the only We will return it to So at the time that the wood framing construction actually started, approximately the time that this particular application this application. MR. OCHSENREITER: We had con~nenced prior to that. I believe in October, but I cannot be sure of the date. I believe the original letter to Mr. Schondebare was dated in October from Mr. Ross. THE CHAIRMAN: Was there at any time that you felt there might have been a stop work order on this particular property? it was you started with or commenced MR. OCHSENREITER: I don't know. From my direct knowledge, I don't know. THE CHAIRMAN: I thank you very much. We will see what develops. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 MR. TOHILL: Could you ask Mr. Ochsenreiter whether or not he ever went to see the Building Inspector, or Mr. Lenceski? THE CHAIRMAN: I think I will ask him at the end of the hearing. MR. TOHILL: Can I ask him? THE CHAIRMAN: You can ask me to ask him. MR. TOHILL: you to now. Mr. Please. I would like THE CHAIRMAN: Mr. Ochsenreiter and Lenceski, at any time did you go to the Building Inspector and request a stop work order on this permit? MR. OCHSENREITER: No, I did not. MR. TOHILL: Thank you. Mr. Chairman and members of the Board, I would like to make an application which has three subparts; two of them are a little bit lengthy and one is quite brief. The first subpart is that the Board is without jurisdiction because the petitioners have failed to comply with Section 267, Sub 2 of the Town Law. In 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 1 2 3 4 5 6 7 Sub 2 of the Town Board acts on this is substance, Section 267, Law says that when this kind of application it does not have what called original jurisdiction, but instead only appellate jurisdiction. What that means, following up on the concession of facts that was just made by the petitioners, is that the failure to go to the Building Inspector and ask for a determination, the same determination they are asking from you tonight, means that the first time that the Town of Southold is being asked for that determination ... the original time is tonight. You have no authority to do that. The reason is Section 267, Sub 2 of the Town Law says your juris- diction is appellate only on an application of this type. The Town zoning ordinance takes the language exactly. It is the first subsection of the four subparts that gives you jurisdiction to hear appeals, variance interpretations, and matters of that type. The result of that is that there is no 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 9 application before you from any prior order, requirements, decisions, or determinations made by an administrative official charged with the enforcement of the zoning ordinance. Inquiry of the Town Attorney is not inquiry of that official who ... had an administrative official in this Town been appointed under Section 138, the Black McKinney's Town Law, with the sole duty of enforcing the zoning ordinance ... absent that under the decided cases there is no jurisdiction. It is not in dispute and indeed if you look in your file there is a memo from the Building Inspector to you, dated January 26, 1990, in which he says he has no knowledge of either Mr. Ochsenreiter or Mr. Lenceski. There is not any allegation in any of the papers that were filed by Daniel Ross of Wickham, Wickham and Bressler, on the 19th of January, saying that they'ever went to the Building Inspector or to anybody in the Building Department, even to Kurt Horton (phonetic 1 2 3 4 5 6 7 8 9 10 11 12 t3 14 15 16 17 18 t9 2O 21 22 23 24 25 10 spelling), who issued the building permit. There is a case decided in New York entitled Hilbert against Hass. It is from 1987. It is the Reporter's Report, at 283 N.Y. Supp. 2d 440, and in that case the Supreme Court of Suffolk County ruled specifically on exactly the same issue. If there is no prior determination from the Building Inspector, you don't have juris- diction. The same issue was raised by the Second Department Appellate Division in the case reported in the New York Law Journal, on June 13, 1989, six months. The same resolution occurred. The law has never been changed on it. There is a reason. Right now, you are about to hear, whenever you reach the merits, and I hope you don't, but if you were you will hear the petitioner's side of the case. You will hear the property owner's side of the case, but we will ... actually we are here almost by our pleasure but you have nothing in the record framing the record from the Building Department. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 Just to point out to you how the order is written, in Section 267 of the Town Law one of the things that could have happened if the right procedure was followed, if they had bothered to go to the Building Inspector, is that he could have issued a stop work order. The Building Inspector could have revoked our building permit. If that were to have happened, Mr. Ochsenreiter and his neighbor would be home with Newsday tonight, and I would be here with my clients. That is the way that the statute was written and that is the way it makes sense, but to have the Building Inspector excluded at every step from the administrative procedure makes you the Building Department. It makes you the Building Department. Now you get to fill in all the gaps. You get to second guess him and, again, if we ever reach the merits on this particular controversy ... I don't think you will find any of the questions and none of the answers for certain written in the zoning ordinance, putting everybody at a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 2t 22 23 24 25 disadvantage. It at a disadvantage. property owner, at a disadvantage, puts you at a brutal disadvantage. I can right the record in this 12 puts the Town of Southold It puts my client, the and it proceeding. The Building Inspector can remain silent in this proceeding. Worse than that, the petitioners could try to right the record. Maybe they know and maybe they know less. The point is, the only way in which this is supposed to work, under every decided case that I have been able to find since 1967 in the State of New York, is that you first go to the Building Inspector. He then makes an order or determination. That is the exact language under 267, sub 2 of the Town Law, and then whoever is injured or hurt or claiming to be a challenging party gets to come here to the Zoning Board of Appeals. Historically, according to the Special Town Attorney who was asked to look into this today, this Town has from time to time read that ordinance differently. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 Unfortunately, I did not know that ever before, but by the time this evening that I was able to research the point that Special Town Attorney had left his office and the volume, the text, the case that says you are reading it ... in other words, it is what is called surplusage, and that is not in my library but in the Supreme Court library. I will dig it out and have it sent on to the Town Attorney and Special Town Attorney. THE CHAIRMAN: Special Counsel. MR. TOHILL: The point is that if you have done it in a manner in the past that the surplusage says, and under all the decided cases it would be done differently, this is not the wrong time to start to do it the way the decided cases dictate we should do it. There is no record. That is the problem. For the Board tonight, the second part of this application is that the application is untimely as a matter of law. On my investigation, and I think everybody is in agreement, also Section 267, Sub 3 of 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 the Town Law requires 14 that you have local rules of procedure. You do not. You are not alone in that category. Many zoning boards out here do not follow that rule and they do not have to. One of the rules of procedures, if you did have them, would be how long after the disagreement of that order or the determination from the Building Inspector are you allowed to challenge him. Can you wait forever or are you required to do it within 15 days, or 30 days, or 45 days, or whatever? If you had that in your procedure written, that would stand, but absent that the rule is one of reasonableness and there are three key dates in the rules of reason- ableness and there are loads of cases which I have given to the Town Attorney on the point. The first key date is the date of the building permit. The second key date is the date that the property owners ... who are petitioning, objecting, in challenging ought to have known when work was started, that a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 building permit had been issued. A building permit could be issued here and nobody would know. So in fairness to the objectants, they have to be given a chance to know. The third key date is when they file the appli- cation with this Board. Let me go through some of the dates. I don't think there is any disagreement anywhere of any of these dates. The building permit is dated August 8, 1989. The construction started with the excavation of the foundation on August 30, 1989. The foundation was installed cn August 31, 1989. The subs and material men were ordered to do the work and entered into contract with the gentlemen, with my clients, during the month of December of 1989. We ordered the lumber to be bailed and held, meaning segregated and prepared for delivery to us for the construction of the entire house off the entire lumber list on January 5, 1990. The work resumed not on Januar~ 15, a holiday, but instead we had heavy equipment brought to the site on January 8, 1990. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 The date of mailing in your record on this application by the petitioners, stamped by the Mattituck Post Office, is January 9, received by us January 10. No petition was filed as the rules required ten days later. Nothing was in the Zoning Board office for us to examine ten days later. The date of filing of the petition that is before the Board tonight was January 19, a Friday ... January 19, 1990. On January 19, 1990, the condition of that house is that it was completely framed out and Saturday, January 20, 1990, before we even knew any petition was ever filed ... we were never sent a copy of it by anybody ... I bought and paid for ours to Judy Terry for 25 cents a sheet. Before we ever knew the petition was filed, the roof went on. The house for everybody who has been by to see it is virtually complete. Two people have already offered to purchase, two people from this community. One hundred and sixty-four days have lapsed between the date of the building 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 17 permit and the date the petition was filed. In 1973, the Supreme Court of the State of New York, in the case entitled Marone versus Friere, 343 N.Y. Supp. 2d ruled as a matter of law a delay by 183, objectants, such as the objectants here tonight, of 120 days is unreasonable. Going back to the first point I made, if it is unreasonable as a matter of law they may not proceed. In the name of fairness, the courts have said if you watch the guy, and you watch him, and you watch him, and then after he invests by entering into contract or delivery of lumber or whatever he is doing, and then make your first move, the courts are not going to open up the Zoning Board for that type of procedure. That simply is not fair. The same rule was upheld by the Supreme Court, Suffolk County, July 29, 1988. I am holding a copy of the decision in my hands. I have some familiarity with it. It involves the Town of Shelter Island. I represent the people in the exact same 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 18 position; different clients, same legal argument, same everything. And Justice Luciano (phonetic spelling) said as a matter of law you waited ... 120 days is too much. Seeing the Town Attorney or seeing Daniel Ross, who has been their attorney since 1986, doesn't help for curing anything because Daniel Ross is not the officer appointed under Section 138 of the New York Town Law to enforce the zoning ordinance of the building codes. In this municipality, that person is seated in the second row, but he is not being consulted by anybody on the objectants' and petitioners' side and that is what the record says tonight. That is what the code record says and that is what the live records say. So that my client has then got to spend a lot of money ... a lot of money while they waited. THE CHAIRMAN: Is that the third point you just brought up? MR. TOHILL: No. The third point is that under Section 267.3, in order to perfect jurisdiction before this Board, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 19 among other things, for the same reason I mentioned I have ad nauseum this evening, they have to file the application with the Building Inspector, meaning the petition that you received on January 19. It says in the Town Law, you read it, "Such appeal shall be taken within such time as shall be prescribed by the Board of Appeals by general filing --" here it comes, "-- with the officer with whom the appeal is taken." That gentleman, pointing to Victor Lessard, by filing with the officer from whom the appeal is taken. By the way, there was no appeal taken, was there? They forgot to talk to him. Then they forgot to file with him. It says with the Board of Appeals, a notice of appeal. So for the third reason, this was not done, and for the second reason, the untimeliness, you don't necessarily need to reach the third reason because the untimeli- ness as a matter of Now I would reserve any other position that law and this proceeding. like to be able to I wish to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Island. I have been involved contentious proceedings. I have been involved in some very in proceedings where property owners have been hurt. I have been involved in proceedings where people have lost money. I have been take during this proceeding, until such time -- and I assume it is not tonight -- you would have an opportunity to consult with counsel to review the law issues and render a decision on these procedural issues. I think that would be a sensible way of proceeding for a number of reasons. One, a number of people will be required to be present here tonight or then, whatever night we reach the merits. That list is getting longer with every day of investigation on my part of the people who I will call. It will be not only inconvenient for a number of people to reach the merits without an opportunity to rule on these prior issues, but I have been practicing zoning law for eighteen years here in the five eastern towns and elsewhere on Long 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 21 involved in proceedings where people have lost government and municipal positions. I have been involved in matters where people's blood pressures reached the point that an internist's medication was not necessarily the answer. I believe I am going to reach all of these points in this proceeding before we are completed and I would like to avoid every single one of them. If the matter is resolved on the technical issues and if somebody wishes to challenge, the Supreme Court is twenty miles to the west. The same Supreme Court that decided the case I am holding in my right hand, on July 29, 1988, involving the same issues in the adjacent township. I would entitled ask that be in which the Board is to proceed and we see where we end up at that point. Thank you. THE CHAIRMAN: Mr. Ochsenreiter and Mr. Lenceski, of course it is at this particular time I will ask you if you have anything else you would like to say and then we will then go into a short conference with 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 the present Town Attorney, Mr. Matthew Kiernan, sitting right across from me, and we will have two options at that particular time; either to continue with the hearing or to recess the hearing at this particular point and then take the transcript, which this lady is nicely putting together for us, and giving it to both counsel and to special counsel and to deal with these particular issues that have arisen tonight based upon what Mr. Tohill has said. So I will just ask you if you have anything you would like to say for the record? Yes, Mr. Lenceski. MR. LENCESKI: Edward Lenceski, 500 Bayer Road, Mattituck. I need a few of those medications right now. I am very nervous. I am not a public speaker. We talk about procedures. about procedures, about here. Mr. Ochsenreiter counsel at one point in have him any more, are not sure of. Mr. Tohill talks procedures we have and myself did have time. We do not for a reason we really 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 23 We are lay people that basically are asking the Town of Southold ... and here we are talking about jurisdiction. Okay. We have the Town Planning Board. We have the Town Zoning Board. We have a Town Building Department. As far as I am concerned, that is all the Town of $outhold. One may not have jurisdiction. This is something, who is jurisdictioning here? We are talking about procedure, about our timeliness. We were told by Mr. Ross' office that he spoke with Mr. Schondebare and Mr. Schondebare, for some reason, seemed to push this answer off to somewhere. He put it at a distance, not were given the impression, that the building was until the question of responding right away. We back in November, not going to be put up whether or not that building permit was properly issued and the vacant land CO's were properly ... were answered. There is a question here of the property owners, Eva and Leonard Spano (pho- netic spelling), owning Lot 35 ... 35 and 36, in the petition. There is a copy of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 24 their deed that lists 35 and 36 as one parcel. My deed across the street lists my lot, whatever, they have 58 and 59, as one parcel. We questioned how can we go about subdividing our Planning Board. like to subdivide a petition to the land. I called the Town I was told if you would your land you have to file Building Department asking them is this legal. The Building Department will deny this because of the fact theF have a one acre zoning in your M40, or R40 region. At that point the next procedure I understand is we would have to file an appeal to the ZBA requesting a variance to build or to subdivide our undersized plots. My question to the Town of Southo]d, and I don't know who has jurisdiction, is how was the lot across the street sub- divided? Was it done with proper procedure? Was a site plan filed and an application for the subdivision, a legal subdivision, filed with the Town? 1 2 3 4 5 6 7 8 9 10 11 12 t3 14 15 16 17 18 19 2O 21 22 23 24 25 24 their deed that lists 35 and 36 as one parcel. My deed across the street lists my lot, whatever, they have 58 and 59, as one parcel. We questioned how can we go about subdividing our land. I called the Town Planning Board. I was told if you would like to subdivide your land you have to file a petition to the Building Department asking them is this legal. The Building Department will deny this because of the fact they have a one acre zoning in your H40, or R40 region. At that point the next procedure I understand is we would have to file an appeal to the ZBA requesting a variance to build or to subdivide our undersized plots. My question to the Town of Southold, and I don't know who has jurisdiction, is how was the lot across the street sub- divided? Was it done with proper procedure? Was a site plan the subdivision, with the Town? filed and an application for a legal subdivision, filed 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 It THE CHAIRMAN: I have no idea. would not come before me, anyway. MR. LENCESKI: Okay. This is our question. THE CHAIRMAN: What the procedure would be? MR. LENCESKI: We are looking at the whole thing here in that those were two separate lots, two separatly divided lots. We understand that there are exceptions that were mentioned, exceptions under 1966 codes or prior to that there were certain sub- We also had in the code, in deleted Mattituck Heights We wonder what the division maps. the '89 code ... as an exception. precedent is. On our street there is approxi~tely four or five additional situations, ver~ similar to the situation across the street, where there is a house on a double or triple building lot. In other words, the original 1938 subdivision, everybody subdivide4. There were little 50-foot frontage lots where the area was developed by people, 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 developed and put two or three lots, put their house on one or two and had the lot on the side. There is a question of whether or not these things merge. I don't think that's the point. The point here is was that Spano deed ... that CO says Lot 35 and 36 were deeded for one family use. How did that get subdivided? If we breached protocol and appealed to the wrong Board, this was at the direction of Dan Ross. Unfortunately, now I don't know what the Town Board or what the Zoning Board is going to have to say about this hearing. We ask you for advice. Should we file to the Building Department? At this point, the house is mostly completed. You hate to see people build a house like that, but I know if I were the builder and I had a building permit I would not go ahead and build to the procedure before that was ... that building permit was properly issued. There is also a question, if it was properly issued, does that house size exceed the Town zoning law under '66 regulations? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 It seems the '66 Zoning Board code allows the house on a nonconforming lot to not exceed 25 percent of the lot area. It seems the house across the street, according to the building permit files, is a 2,028 square foot house on a 7,500 square foot lot which exceeds the 1966 code. The 1989 building code downgrades to 20 percent. So again, that house size exceeds it. When we look at the house it looks like a very big lot it is on. As far as how it affects the neighborhood, we are looking at real estate comparative values. When the parcel across the street sold, the asking price for the Spano house was $150,000. When they sold, they sold us two separate parcels for one hundred five and forty-five thousand. done people are going to of the neighborhood sell When real estate comparative is say what the houses for. They are going to say the house across the street sold for $105,000. It is not going to help our comparative real estate value and this is what we are concerned about. 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 28 We are all concerned about precedent. Does this set any kind of precedent, to allow other owners in the neighborhood who had to do the same exact thing and this is to subdivide their property and put a house up? I would like to do it. Mr. Ochsen- reiter would like to do it. We could make a nice profit. Maybe we should call the Building Inspector and ask for this building permit right away. Maybe that is the procedure. That is about all I have to say. Thank you. THE CHAIRMAN: Thank you. MR. TOHILL: Just to explain for the record on that point, we are dangling two offers right now; each of $165,000 for that house. I said that in terms of damages, $165,000. so everybody understands what's at stake here, Could you, in talking about this with special counsel and Town counsel, give some consideration to rendering a decision before everybody ... assuming you judge against 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 me ... I always think the worst assuming you vote against me on 29 case ... this appli- cation, could you do it in a way where you do it nicely but also that you do it on one night where the hearing doesn't occur two minutes later, because at that point we don't know on our end of this what is happening? But if you do it one night and the hearing occurs two weeks or four weeks later, that would be a better way for us to do it because this hearing is going to take I have a hunch, maybe all night and ... THE CHAIRMAN: We have been going 12 to 16 hours on a hearing. We have four consecutive nights of four hours. MR. DINIZIO: You know, on what you just mentioned to us, I have a couple of questions. Perhaps you can clear them up. I would just like to know, are you saying that because the applicant waited such a long period of time and because the people spent so much money that there is no longer a challenge? MR. TOHILL: This is a combination of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 the two. The courts have held that without the spending of money by Inland Homes, if you wait too long you lose your position to object ... without the spending of money. The exact wording in the Marone case, which I don't have in front of me, is that the delay of more than 120 days, in this case it was 127 I think, the delay of 120 days is unreasonable. In that case, and I hope you will get a chance, each of you, to read it, you will be stunned by the factual overlap from that case to this case. The objectant, the person in the position of these gentlemen, was an attorney I am sad to report. He watched a neighbor with a building permit. He knew the neighbor had a building permit and he waited until the neighbor started the excavation. Then the next day, he went into the Building Department, filed the Zoning Board application, and when the case came up the Zoning Board said you came in too late. We are dismissing your application. He then sued the Zoning Board, went 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 to Supreme Court, and the Supreme Court said you waited too long. One hundred twenty days is too tong. You waited. It was 127 or 137. I mentioned before the number of days that we have here, and it pales in compari- son because you have here 164 days. Now, the court in New York, as I mentioned to you, in a similar dispute involving Shelter Island and the house under construction there, in the last 18 months the Supreme Court in Riverhead picked up the same points and used it again ... so that it is a combi- nation. It is first ~nd standing alone, the 120 days is too much ... here, 164; and second, if they watched the man or if they ought to know that the man is now spending money or, as in this case, engaging the con- tractor, having already dug the foundation back in August ... by the way, August ... I mean, that is a sure sign that somebody has got a building permit to do Something ... having done that and waited until he engages in contractors, the sub, and then waits 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 until he engages in material men and then puts his so-called bail and hold order, which he did with the entire lumber list, am saying without any question there isn't a single case in the history of New York that allows these people to proceed at this point. Having said that, is your lawyer?" That is concern. That is not our have a remedy. Tkey have they said, "Where not this Board's concern. They a remedy for that, but it is not this Township or this Zoning Board resolving the problem on it, certainly not our problem. to proceed. failure to So we should be permitted The long silence and long take a right when they came in the front door of this building has great legal significance. That Building Inspector is not here for nothing. Under Section 138 of the Town Law, says what he is supposed to do. read what he is supposed to do, things is issue orders and determinations on and I invite you all to read it, it And if you one of the 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 1 2 3 4 5 6 the complaints of people reiter and Mr. Lenceski. 33 like Mr. Ochsen- That is exactly what his role is, but failing to consult him and leaving him in the dark and talking instead to your own attorney, is hardly the key way to get to this Board. I am sorry. MR. DINIZIO: In that same vein, would you have any idea how long it would take for the Building Inspector, or how long by law does he have to issue a determination on the stop work order? MR. TOHILL: I don't know of any case where they say that the Building Inspector took too long. been asked the question the Building Inspector remained silent and didn't any answer. There are some where having give For example, when you have a chance to read it, the one I mentioned earlier from 1967, the Building Inspector of a greenhouse ... which is in the Town of East Hampton, by the way ... was asked the question so that they did at least that part · .. done there. He was asked the question. Surprise. He gave no answer. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 34 Next surprise: The applicant went to the Zoning Board. Next surprise: They lost. Next surprise: The Court said asking him the question and getting silence back is not enough to give you a Zoning Board of Appeals jurisdiction. In other words, you have half of it, the question asked to the Building Inspector with no answer, that is not enough to give you an order and determination. Under 267, Sub 2, that I mentioned here, you do not even get the half. They ignored the Building Inspector. Everybody conceded they ignored the Building Inspec- tor. That was a fatal defect. It was not done by Mr. Ochsenreiter or Mr. Lenceski, as if they knew how to operate in the Town government, but it was done presumably by an attorney who was licensed to practice, to live in this community and practice in this community with the firm that has been here ... I know they have represented my client too, since 1986. I guess they know what they are doing in this area of the law 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 35 and if they made a problem that's now going to become a problem for these objecting neighbors. As I say, that is not for us. That is not for you. That is for them, Mr. Ross, Wickham, Wickham and Bressler, and these two neighbors. MR. DINIZIO: So I guess we could pretty much assume the building permit was posted for a year and a half the house. MR. TOHILL: out in front of No. You don't seem to assume that ... ::hea the foundation went in ... August 30, that ia the kind of in- dicia that the court will recognize as the moment when the neighbor ought to know that something happened and, as a matter of fact, they did know that something happened and they started a chain of events that brings us here this evening. Unfortunately, the key ingredients are all missing ... consulting the Building Inspector and waiting, and waiting, and waiting ... even sending the mailing notice 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 36 saying you can examine the petition in the Zoning Board office five days from this date and doing that on January 9, having received on January 10 and then not filing it until January 19, and then not giving a copy, not even a courtesy copy, counsel to their own clients, creating a situation where I from the petitioner's Inland Homes, came in and Doreen kindly gave me a ccpy with the bill to pay down at Judy Terry's office. That is the way this works. So that was when [~e first got to see exactly what they were saying. At that point, the house was completed on January 19. As I said to you before, the roofer was coming on the site on Saturday, January 20. The house was roofed, that is to say, the shingles were put on the sheathing that was already on the house that had walls, was completely framed out exactly as you see it standing there today. THE CHAIRMAN: Can I ask a question? What is the present condition of the house? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. TOHILL: It is subject to the completion o~ the interior wallboards ... interior wallboard installation, plumbing, electricity, everything is done ... doors, windows, everything. (Whereupon, pictures were handed to the Chairman by Mr. Lenceski.) MR. TOHILL: Could we have for the record an indication as to the date that they were taken, which is ten days ago? me see them. Are these the ones taken ... no. office, THE CHAIRMAN: Mr. Tohill. morning, 7:30. MR. TOHILL: I have pictures in my It was taken Sunday Okay. I don't think there is any question that the house is completed; is there? THE CHAIRMAN: There is no question that the exterior wall was completed. That is correct, yes. Do you have any other questions, MR. by there. Let Jim? DINIZIO: No. Just that I went I went by there yesterday, 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 1 2 3 4 5 38 the day before, and quite honestly, I didn't see the building permit. What I am saying, all I am asking is that it was posted. MR. TOHILL: It was given to me as part of this proceeding. I asked for that. THE CHAIRMAN: you? MR. DINIZIO: Do you have it with need to basically understand to make my decision how, or have some idea when these two gentlemen were aware that a house ... not a garage ... not a building ... that could go alongside a house ... okay ... and be part of those two lots ... that would not be residence. I need to know when they were aware of that. A building permit being out front? Sorry, anything could be going up. So, all I really want to know is if that building permit was posted outside and when it was posted outside, is not there now. HR. OCHSENREITER: one thing as a citizen? government of and obviously it Could I just say I petitioned the Southold for redress, and I 1 2 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 got a letter dated October 17, abouts. THE CHAIRMAN: 39 or there- I have the letter. MR. OCHSENREITER: The one I gave you from Mr. Schondebare's office. I assume he had ... at that time he was an official of the Southold Town government. to mean he had been informed. procedure was from there, obviously, no idea. Nor required to have. the house go up. Schondebare's letter, consideration. THE CHAIRMAN: I took that What the I have no ... do I think I am My delay was not to see I assumed, based on Mr. that it was under Could I just ask you a question, Mr. Ochsenreiter? In other words, what you are saying is that because of the lack of wood con- struction you assumed that something was happening concerning Mr. Schondebare's action concerning this particular project. Is that what you are saying? MR. OCHSENREITER: Precisely. The foundation was put in ... forgive me for 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 40 some of the dates ... and it sat for quite a while. It was prior to October 17. The foundation was put in. Above-grade con- struction started on Martin Luther King Day, January 15, with the foundation. It sat from October until such prior, to Martin Luther King Day when it was backfilled, and above-grade construction started on the 19th. THE CHAIRMAN: Thank you, Mr. Och- senreiter. If there is nothing right now, I would like to just with the attorneys ... assuming it is the case ... take a five minute recess in %h~ Town Board room unlikely we will dismiss at which time I will come back and only deal with that you mentioned concerning the way the particular issues and my particular opinion I feel this particular case should go. It is very simply one person of the Zoning Board mentioning this, and I will tell you the way that I feel concerning this. I reviewed the foundation since its inception. I have discussed this issue on 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 December 13, with the owner of the property, Mr. Robert Hill (phonetic spelling), ~ho I have known for 23 years and in fact built my first house. My discussion on December 15, or thereabouts, with James Schondebare concerning this letter that Mr. Ochsenreiter gave me tonight ... and I will afford you a copy of it, and I give Mr. Ochsenreiter a copy of this back again ... right after I discussed it with ... MR. TOHILL: When you said you knew about the foundation from the inception, what is the inception date; August 30? THE CHAIRMAN: Inception date was about mid-October. MR. it? TOHILL: How did you learn about THE CHAIRMAN: I rode by and saw it. MR. TOHILL: Did somebody ask you to? THE CHAIRMAN: No. I need a motion for a recess of five minutes. So anyone in favor ... BOARD MEMBERS: Aye. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 42 (Whereupon, a brief recess was taken at 9:23 p.m. and the proceeding resumed at 9:33 p.m.) THE CHAIRMAN: reconvene. BOARD MEMBERS: THE CHAIRMAN: BOARD MEMBERS: THE CHAIRMAN: need a motion to So move. All in favor? Aye. Mr. Tohill, for the record, and applicants, we have discussed this matter with the Town Attorney. It is encumbent upon us to really question what has been brought to us tonight in reference to the lack of having the jurisdiction in this particular hearing of this case. We have to question that in definitely two modes. We have to again take it to our attorney and to our special counsel, and we can only do that once this transcript is transcribed into clear and concise form. So we are going to have to recess this hearing, and to deal with that on this particular basis. I will tell you for the record, Mr. Tohill, that when I rode down 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 43 Bayer Road after reading something about this in the newspaper, I honestly and truth- fully thought the garage or that this foundation was for something other than what it was for because it was a rather small foundation. That was sometime mid-October, mid- to late October in this particular case, and that is my feeling on the whole situation. What happened or what transpired ~fter that, I cannot tell you. I also can tell you, however, though, that before us is a case ... and I will not discuss the merits of it ... not before us, but before Article 78 has been filed with, I believe, Judge Luciano (phonetic spelling) ... it may take more for the 25,000 square foot building, the period of time that elapsed between the building permits and the actual commencement of the construction is much more time than existed in this particular project. MR. TOHILL: I am familiar with case. I have spoken with Richard Larke, that told me he didn't know anything about 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 44 the area of the law on the night he was here and that the first he learned about it was to read the document I was holding in my hands a few minutes ago. THE CHAIRMAn,: So time, unless anybody has would would for the that my at this particular anything else they like to discuss, anything that you like to discuss concerning ... MR. TOHILL: No. Just to say, again record, I am reserving every right clients have to raise every objection as necessary to protect my clients' interest 3nd if it becomes necessary to do that, we will do it. I would like you to keep in mind, if you can, that housekeeping side of it just so it is easier for everybody if that is the direction we are going in. THE CHAIRMAN: Mr. Ochsenreiter. MR. OCHSENREITER: May I submit copies of two newspaper articles, both dated October 26, 1989; one from the Suffolk Times and one from the Traveler-Watchman, concerning this building? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 45 MR. TOHILL: Could I just see them? I have not seen these articles before, but I believe we are now reaching the merits and I think the Board has already ruled we are going to hold off on doing that. I have no objection if, when we reach the merits, I don't believe we can keep anything out including the i:itchen sink. Right now, if these come in, I want to get into the merits and I going to get called and some a little surpri£~d when they am telling you a number of people are are going to be are called. THE CHAIRMAN: Why would you have an objection to this gentleman entering them? MR. TOHILL: Because I would have to do something to meet the contents of the newspaper articles, and I understand what he is trying to do. We are starting the hurt part now. I mentioned before, I said people will get hurt. I ~am trying to avoid people getting hurt here tonight and if you tell me you want to put this in I am going to take it as permission to start the hurting and I am going to do it and people are going to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 get hurt tonight. past 46 and they are sitting in this room I don't want to do I have taken a lot of ten days to it. steps in the avoid this happening and if anybody can tell me the reason that this has something to do with three legal points that I made tonight and 267, Sub 3, somebody can tell me have to do with that, involving Section 267, Sub 2 and Hilbert versus Hass, if what these articles I am here to listen to it. If they can't intelligently connect these to that and that is what the Board has already decided ... only deciding right now ... then I am saying to you that we have moved beyond the housekeeping procedural preliminary issues we have been discussing all night. THE CHAIRMAN: This is the way we are going to take care of this. We are going to ask you to move outside with counsel and Mr. Ochsenreiter, and discuss this particular problem to see if he this particular time. MR. TOHILL: I can enter this in at very much appreciate 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 47 wkat you are doing but there are parts to this where I will not, as an attorney licensed to practice who values the license, engage in this conversation off the record, outside of this room, with this gentleman standing to my immediate left or the other gentleman who was here this evening or anyone else who is individually involved. There are reasons that will come out ultimately, not maybe in this quorum but they are certainly going to come out in another form, and more of what I am trying to avoid is going to occur. If you send me out of the room I am going to be obligated to explain to this gentleman what I am being so mysterious about with you. I don't really want to do that because somebody who is not here tonight and somebody who is here tonight are going to be the first two people hurt. I don't want to do that. I don't want to do it. If he doesn't know what I am talking about, rather I know he doesn't know what I am talking about, the best move for 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 48 everybody is that we pass on this tonight and hold it for another day and if it comes to the other day then everybody is going to have to be invited and you are going to host an evening that is going to be very interesting here. But until then ... until then, let's hold off on it in the name of civility, in the name who shouldn't be hurt, who are not even here THE CHAIRMAN: reiter a question. I have not o~ some nice people in the name of people tonight. Let me ask Mr. Ochsen- read those articles since they appeared in the October 26th issue. What was the specific reason why you wanted to enter them? MR. OCHSENREITER: Simply because the question of timing came up and why we waited so long. MR. TOHILL: Newspaper reporters are not going to resolve the problem. The newspaper or the reporter is not going to testify on the cold document that I did not even get to cross-examine. 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 1 2 3 4 5 6 7 That is the issues 49 not going to resolve any of that I have raised and placed inquiry in your lap. opportunity to speak have the opportunity When you have the to counsel and when you to review the case law, you will see that you have the information you need right now to decide the motion on any of the three bases, but to have from the Traveler- Watchman or Bill Fallon (phonetic spelling) from the Suffolk Times personally appear here in pieces of paper that don't talk. I was not born yesterday. None of you were, and we ought not ruin the record as it now stands by putting material in there that is not anything except inflam- matory and intended quite honestly do to nothing but sell newspapers. THE CHAIRMAN: Okay. At this particular point do you have any objection to withdrawing this? MR. OCHSENREITER: Fine. THE CHAIRMAN: Thank you. I appre- ciate it. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 time. MR. DINIZIO: THE CHAIRMAN: 50 Not withdrawn. At this particular MR. DINIZIO: THE CHAIRMAN: time, only at %his particular time. application, Hearing no further comments, Just the information. At this particular Not the I make a motion recessing this hearing some time to the latter part of February. As soon as we get the transcript, we will afford counsel and special counsel with those to discuss it and we will then readdress this issue by advising to the public and we will be back here and hopefully we will do it as expedi- tiously as possible. We thank you all for coming in. MR. TOHILL: Could you simply state you will have Doreen or somebody notify Mr. Ochsenreiter, Mr. Lenceski, and me when that is so I am not pinned down to reading the Traveler or the Times? THE CHAIRMAN: We have never done that, Mr. Tohill. I would suggest calling 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 51 our office on the 16th of February, the day after our next scheduled meeting. Thank you very much. I offer that as a resolution, gentlemen. BOARD MEMBERS: Aye. I, ~AIL ROSCHEN, do hereby certify that I am an Official Court Reporter and that the foregoing constitutes a true and correct transcript according to my official stenographic notes. GAIL ROSCHEN Official Court Reporter 5 6 7 8 9 10 11 ~2 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHOLD TOWN ZONING BOARD OF APPEALS ....................................... SOUTHOLD TOWN ZONING BOARD OF APPEALS HEARING, In the Matter of ROBERT OCHSENRETER AND EDWARD LENCESKI, Applicants. 53095 Main Road Southold, New York March 29, 1990 8:18 P.M. 11971 BEFORE: GERARD P. GOEHRINGER, Chairman. BOARD MEMBERS: CHARLES GRIGONIS, SERGE DOYEN, JR. JOSEPH H. SAWICKI JAMES DINIZIO, JR. JR. (Absent) APPEARANCES : MOORE & MOORE, ESQS. Attorneys for the Applicants Main Road Mattituck, New York BY: WILLIAM MOORE, ESQ. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 THE CHAIRMAN: I guess we are ready to reconvene the last hearing of the evening, and that is a hearing that we had heard prior to this hearing. So there is no need to read the legal notice. There was significant testimony taken at that prelimi- nary hearing, and this is a hearing in behalf of Mr. Ochsenreter and Edward Lenceski. It is Appeal Number 3908. I have certain questions which I want to mention, but I will start off by saying that we have discussed this hearing with Special Counsel and we have discussed this hearing with the new Town Attorney. It is our opinion, at this particular time, that there is standing for these two gentlemen to come before us and at the culmination of this hearing and encouched within any decision we will have a minimum and maximum time in reference to what we refer to as standing for specific applications and in this particular area which concerns reversal of building permits, and it will be some- thing that we will be dealing with in a £ 1 2 3 4 5 6 7 8 9 '~0 11 12 ~3 14 16 t7 18 19 2O 21 22 23 24 25 precedent basis throughout the remaining seeming years of our tenure on this Board. At this particular time, ! will ask Mr. Ochsenreter and Mr. Lenceski if they would like to say anything for the record. MR. OCHSENRETER: Mr. Goehringer, is this reconvening? THE CHAIRMAN: It is a continuation, but we have to reconvene it. MR. OCHSENRETER: 600 Bay Road, Mattituck, Do you want me of the last session? Robert Ochsenreter, New York. to repeat my testimony THE CHAIRMAN: No. It is part of the permanent record. MR. OCHSENRETER: lng further. THE CHAIRMAN: would like to repeat, MR. MOORE: Commons, Suite 3, I would have noth- Is there something you Mr. Moore? William Moore, Clause Main Road, Mattituck, from the firm of Moore and Moore. We are being substituted for Mr. Tohill, who was here at the last hearing. 1 2 3 4 5 6 7 8 9 10 11 12 ~3 14 15 16 17 18 19 20 21 22 23 24 25 At this particular point, let me begin by renewing the motion Mr. Tohill raised at the last hearing. He cited specific sections, Section 267, Subdivision 2, of the Town Law. The petitioner's failure to obtain a determination from the Building Department before commencing this appeal. There is a memo in the file of the ZBA, from the Southold Town Clerk, which states material being transmitted from the Town Clerk to the ZBA does not include a notice of disapproval from the Building Department. He speaks at length about the failure of the petitioners to come to the Building Department and challenge or request any determination from that department with respect to the permit that was issued. Mr. Tohill previously set forth the basis of the Appellate jurisdiction of this Board and also the Board that had to review prior decisions and asked action of these who are charged with the enforcement of the Town zoning codes. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 38 19 20 21 22 23 24 25 As he stated and I repeat again, jurisdiction has not been established from this appeal. The prerequisite steps have not been taken for this appeal to reach it. The second motion relates to Section 267, Subdivision 3, in that this appeal is untimely as a matter of law. ! appreciate the desire of this Board to at some time ... ! don't know that within the context of this decision it would be appropriate to hear affidavits what your rule will be regarding appeals. I think that will be a procedure you can use to create a set of rules and procedure to the extent you want to have them regarding the appeals of determinations of the Building Department. THE CHAIRMAN: I am reminiscent of saying that we will take these to the legis- lative committee and make them embody within the area of 267 or any applicable areas of which they will pertain. MR. MOORE: The key period of time when you go to make an appeal is when the period begins to run. It begins to run when 5 this 1 2 9 10 13 14 15 16 17 18 19 20 21 22 23 24 25 6 the person who is going to complain about a decision becomes chargeable with Notice of Issuance of the permit of which it complains. Now you have a copy of the building permit in your file, dated August 8, 1989. Work began on this site with clearing and excavation for the foundation. This work took place August 30, 1989. Now I have some information that was not presented the last some bills to support which we are speaking. time and they are this time frame of The first is a bill for Robert Chilton and it is in reference to work performed on 8/30, Bayer Road, for Inland Homes. This is the clearing of the property. Also included in the papers I gave you are receipts from the Southold Town Dump, receipts made out to Robert Chilton for land cleared. receipt is 8/30/89. I have for you a Concrete, Incorporated, The delivery date of receipt from Eastern 9/15/89, indicating their accepting $2,400 for work that Was done for Inland Homes on Bayer Avenue. ¢ £ 1 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mean, I gave you those. The time in which to appeal begins when a person complaining should have notice. If you get a building permit and sit on it for six months, one could not expect anybody to know about it. But when you take action on a permit and the person lives, as the petitioner stated in theiz petition, on Bayer Road, across the street from this property, you have notice of what is going on. Now, the petition is a sworn state- ment by both petitioners. In that sworn statement they state that their attorneys wrote to the letter dated respect to Zoning Board of Appeals in a September 13, 1989, with the property which is the subject of this appeal, and that they ... I mean the attorneys ... I presume were in- formed that no variances have been granted with respect to this property. So even as of September 13, 1989, inquiries were being made by these petitioners according to their sworn statements to the Zoning Board by 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 their attorneys. Now, the petitioners never spoke with Inland Homes. Inland Homes never suggested to them that they were not going to take any action on this permit. They were going to sit on it. These petitioners were represented at one point by the office of Wickham, Wickham and Bressler. Mr. Tohill raised briefly a third reason for dismissing, related to Section 267, Subdivision 3. Mr. Tohill wrote to Mr. Kiernan, the Assistant Town Attorney, on February 1, 1990, stating forth the basis upon which we have been speaking for dismis- sal, either lack of Appellate jurisdiction ... because there is no determination from the Building Department on which this appeal was founded. Petitioners contacted the Building Department, and had not requested a decision from the Building Department before they filed their appeal. Mr. Tohill later also addressed the failure to file the appeal in a timely fashion, in which you give permits and the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 basis, rather to show when work was being performed. Lastly, he advised in this letter to the Assistant Town Attorney, dated February 1, 1990, which has the day of the public hearing, that the petitioner had failed to file their appeal ment. That is a Subdivision 3. with the Building Depart- requirement of Section 267, Now the Zoning Board of Appeals has a letter in their file indicating that the law firm of Wickham, Wickham and Bressler with- drew as counsel, a letter dated February 1, 1990. A copy of that letter was sent to Mr. Garcia, and signed for by Corinne Lessard- Garcia. I have a copy of that letter and the envelope indicating the postdate of January 31. I would like to give you that as well ... postmarked letter, January 31, dated February 1, withdrawing his counsel. Now on the very date of the hearing, February 1, 1990, after petitioner's counsel was withdrawn, a copy of the appeal miraculously gets filed with the Building 1 2 3 4 5 6 7 8 9 ~0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 Department at 2:55 that afternoon. The affidavit of service is sworn to before a notary public who I have reason to believe is the secretary of the law firm of wickham, Wickham and Bressler. I believe they have withdrawn counsel at that point. I would like to believe the petitioners were aware of that requirement, and in all good honesty, I would like to believe they knew they had to file that appeal on the day of the hearing. If I believe they have withdrawn counsel at that point, I would like to believe the petitioners were aware of that requirement, and in all good honesty I would like to believe they knew they had to file that appeal on the day of the hearing even though the original was filed January 19, 1990. This was some last minute housekeep- ing paper work that would have seriously challenged the jurisdiction of this Board, because Section 267, been complied with. appeal Subdivision 3 had not I don't know how that got filed with the Building Depart- L ! 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 11 merit in the afternoon of the night of the hearing, after the attorneys had withdrawn as counsel. I reserved my motions. They were raised before. I would like to get down to the merits of this a little bit, and to that extent I would like to call upon Victor Lessard to describe to the Board the basis and justification upon which a building permit like this might be issued. MR. DINIZIO: Can I ask a question? I would just like to ask a couple of ques- tions. Number one is, to your knowledge, is a building permit required to clear land? In other words, if you want to smooth out your land, take a tree off, are you required to get a building permit? MR. MOORE: In residential property, I don't believe so. MR. DINIZIO: Number two, does it require the assistance of an attorney to file with the Building Department, the permit? 2 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 12 MR. MOORE: I am not saying it does. I only question that the appeal was filed January 19th. The hearing was scheduled for February 1. I'm sorry ... February 1 ... the appeal got filed with the Building Department. ! am troubled by the continued appearance of one of the attorneys from the law firm. MR. DINIZIO: But I mean, you don't have to be represented by an attorney. MR. MOORE: I am not saying you have to be represented by an attorney to appear before the Zoning Board to file papers for the Zoning Board. MR. DINIZIO: Or with the Building Department? MR. MOORE: Or with the Building Department. THE CHAIRMAN: May I clear that one issue up because I had a discussion with Dan Ross, who is a member of the firm of Wick- ham, Wickham and Bressler, in around my lunch period of that particular day of February 1. He told me he was withdrawing 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 his counsel as of MR. MOORE: the letter. well. THE COURT: He said, "What I said, He said, 4:30 and they will counsel." I said, 13 4:30 that afternoon. I had received a copy of I am CC on that letter, as That's what he told me. time does your office close?" "Five o'clock." "Somebody will be there by formally withdraw as "I am just telling you we are having a jurisdictional problem in reference to having this hearing or not having any hearing, and at this particular point we have not determined it." MR. MOORE: Thank you for the clari- fication. THE CHAIRMAN: That is my only conversation on the letter presented to you with the photocopy of the envelope post- marked January 31, of a letter dated February 1, and the letter makes no reference to the time in which or by which they are withdrawing as counsel. If the 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 petitioners figured it out and they brought the papers in, that's great. I just wanted to mention that, as you know, I have had discussions about this with the new Town Attorney. We have had in the past sworn witnesses in and attorneys in, and so on and so forth. Everybody here, we know they have been before us before, in- cluding a number so forth. We don't larly necessary. attorneys, and so on and think that is particu- just wanted you to be aware of that, as well as myself. MR. MOORE: No problem. I won't let it go at that. If we can have perhaps Victor explain the policy of the Building Department and explain how the Building Department permits get issued. I think we may be a long way to determining how the code is interpreted in this Town. MR. LESSARD: My name is Victor Lessard. ! am the principal Building In- spector for the Town of Southold. Now would you please ask me what you want to ask me? 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 3 4 MR. MOORE: Sure. The building permit in this instant case was signed by Kurt Horton. I think that's fair to say. copy is in the file. A Do you agree with the decision of Mr. Horton to have issued that building permit? MR. LESSARD: Absolutely. MR. MOORE: Would you explain for the people here the basis upon which that build- ing permit is issued? MR. LESSARD: Before a building permit can be issued, the first thing that has to be researched is the fact that the property that the building permit is being applied for is a single and separate plot that he is building on. This was done by first researching that property back in November of ... I believe, 1988. I have the records here to back it up, and found that this subdivision was on a separate list in 1966, along with 16 others ... excepted subdivisions. When ! first got here in 1988, questioned that then Town Attorney about 1 2 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 these exception lists of subdivisions that come and go, and his interpretation was once they are almost all developed they just take them off the list because everybody knows they are excepted and it makes room for others. When the vacant land was applied for this, I said no because I had done like I always do. I went to the codes back, and it was not there under the present list ... on the present list. The real estate agent that was applying for this went down to the Town Clerk's Office, where it was found on this exception Attorney, had verified that list, went over to the Town a conversation with him, who it was good, who then came back to me and stated that. I then got a hold of the Town Attorney. MR. MOORE: Would you identify which Town Attorney that was? MR. LESSARD: Jay $chondebare. I Attorney I also would like then verified it with the Town and I wrote the vacant land. to say at this 1 2 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 17 point in time, since 1983 I have written at least 98 percent of all the vacant land CO's in Southold Town. In order to do that you have to go through a lot of research. You have to go to the Planning Board. You have to find out if it is an approved subdivision and file. If you can't find it there, you go through the exception list. If you can't find it there, you go over to the Tax Asses- sor's Office and see what they have on their's because every subdivision in the world is filed over there. Then if you can't find it there, you go back to what is known as the grandfather list, which I am sure this Board understands because I under- stand they were involved in that in the '70s. Once it is found in one of those places, then I check with the Town Attorney and tell him what ! have found and ! get the green light from him. Attorneys are for, They are the legal was done. That is what Town as far as I am concerned. arm. This is how this 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 18 While I am at it, there was reference to an article in a November rag known as the newspaper out here, who indicated that I had done something crooked because my daughter was involved in this. I want the record to show that my daughter knew nothing about this property until three months after that vacant land was issued. Now I can under- stand why this factory publishes this crap. It sells newspapers and they have no regard for somebody's character or whatever. But again, I will state, I wrote 99 percent of all of the vacant land CO's in this Town since 1983. Okay? What else can I tell you? MR. MOORE: Was this property from the excepted subdivision list? MR. LESSARD: Yes, it was under May. On the May 24, 1966 zoning code, on the last page. I believe I gave the Zoning Board of Appeals a copy of that. THE CHAIRMAN: I never received one. MR. LESSARD: I am sorry. I gave it to Jim. I have it anyway. 1 2 6 7 8 9 I0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. DINIZIO: I saw it, but I have ~Ot ... MR. LESSARD: I gave a copy. I gave it to you. I would also state that the research goes back to 1980, about the time the grandfather list died. On a quick reference, there has been at least 50 of these vacant lands written, okay? I want the Board to understand that. MR. MOORE: Does this refer to vacant land CO's on subdivisions that were on the exception list but don't appear on the list now? MR. LESSARD: That is correct. The list that we are referring to in 1966 had 16 listed, and of those 16 there are three left today. These three did not move like the rest of them. So they kept them, and new ones were put on. Somewhere in 1970, probably in November when the Town flipped over to one acre zoning, this changed. I am only guessing. resolution or anything to put or move around. list was There is no on, take off, 1 2 3 4 5 6 7 8 9 10 11 12 '~3 14 15 16 17 18 19 20 21 22 23 24 25 20 MR. LE$SARD: didn't bother answer that. MR. MOORE: questions In all probability, I to research that. ! couldn't I haven't got any further for you. I would also state, and that is in 1970, the names that were added had lots smaller than this one. Even though we went to one acre zoning. MR. MOORE: So if I understand, there were subdivisions added in 1970. I can think of one in particular, the Tuthill (phonetic spelling) subdivision. Is that the one you are referring to? MR. LESSARD: That is one of them. Yes, sir. That is five houses, I believe, quarter lots off of Bray Avenue. THE CHAIRMAN: In Laurel. MR. MOORE: That subdivision had been on the previous exception list. MR. LESSARD: No, it had not. MR. MOORE: There are subdivisions on the exception list today that have been on the exception list since 1958. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 THE CHAIRMAN: questions. code book, I have a couple of My problem is that I want the and it is locked in my office. So if you wouldn't mind ... MR. MOORE: I have it. question. CO's for this subdivision in the past that THE CHAIRMAN: Thank you. MR. DINIZIO: Can I ask a question? THE CHAIRMAN: Of Victor? MR. DINIZIO: Yes. THE CHAIRMAN: Sure. MR. DINIZIO: I just want to ask one Have you issued any vacant land MR. the ... MR. connected, you can recall? MR. LESSARD: I believe I issued two of them to a Rudy Johnson (phonetic spell- ing). DINIZIO: A situation adjacent to LESSARD: Yes, they are all I believe. Rudy Johnson wanted them because he knew he was dying and he wanted to get this cleared away for his nephew and niece. 1 2 8 9 ]0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 years ago. the MR. DINIZIO: You know about date, what time it was? MR. LESSARD: Two years ago ... three There was also a house. There is also a vacant lot across the street from ... in fact ... right next-door to one of these gentlemen here. There was issued a permit and a brand new house went up in 1984. I had no problem with it. MR. DINIZIO: Could you get copies of MR. LESSARD: What's that, sir? that? and try, else, MR. DINIZIO: Of the building permits the plans of the vacant land CO's? MR. LESSARD: I will try. I will certainly. MR. DINIZIO: Thank you. THE CHAIRMAN: Do you have anything Mr. Moore? MR. MOORE: Nothing for Mr. Lessard. THE CHAIRMAN: I still have a ques- tion I would like to ask him. I am still searching for it, and I will be with you in a moment. This is highly irregular, but ... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MOORE: Maybe we can help you find the section. THE CHAIRMAN: No. It is not the section. It is something.else I want to look for, but I will do it from the top. Okay. It is highly irregular that I do this, but I have a particular problem with these vacant second time in my history of the ten on the Zoning Board of Appeals that come down. One was for the code you must excuse my writing. land CO's and this is the years have condos and (Whereupon, the Chairman began to draw on a blackboard.) THE CHAIRMAN: basically two lots. lots, and truthfully, is exactly correct in the procedures that within this Town in fathers forth. What we have here is We really have four what Victor has said reference to some of have gone on in the past reference to grand- of subdivisions, and so on and so I can remember there was a last grandfathering of subdivisions, some 340 lots at one time that the Planning Board 2 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 very simply ran through as an agenda and I believe I presently have them. many 24 item My ultimate concern is the fact that times I have felt, and it is not neces- sarily this particular time, this is a generalization which I am dealing with, that Building Departments deal with a single and separate issue based upon the way they perceive those particular lots to be as this comes out of the Suffolk County Real Proper- ty Tax Services in Riverhead and they are the mappers for Suffolk County and those maps are the ones that have and are presently office of our Building all the ten Towns contained in the Inspectors. If we could, for a moment, deal with these particular two parcels which again could be four. This particular one over here, which we will refer to as Parcel A, Sub 1, Sub 2 and Parcel B ... Sub 1 ... Sub 2 ... is basically one issue that I have seen in the past as being somewhat of the pitfall of maybe this Building Department and others in question. I 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 Parcel A very simply denotes two lots. For the purpose of an explanation, they are 50 by 150 foot 1,ors. The straight line down the middle of these lots very simply means that these particular lots, based upon the Suffolk County Property Services, and I am not speaking for them, but I happen to know several mappers and I use their office quite a lot in my particular position with the County, very simply means that these two lots were pur- chased separately. They were purchased separately. There is no indication of when they were purchased. If it was prior to zoning, subsequent to zoning, prior to one acre subdivisions, subsequent to two acre subdivisions. This particular one, if we can perceive it also showing the fine dotted line, is 100 by 150 and there is a fine dotted line down the center of this par- ticular one. What this very simply means is that this parcel was bought at the same time in 1 2 3 4 5 6 7 8 9 10 11 12 13 '~4 15 16 17 18 19 20 21 22 23 24 25 26 one particular block on one particular piece. Now what concerns me an awful lot regarding this, some of the problems we have with the vacant land CO's, is that when the subdivision is shown with a full line down the center, and now remember these do not show any improvements on them, they are solid black lines, that they are perceived to be in single and separate ownership because that is the way they are shown in the individual maps. When you have the dotted line we assume that it is one piece. Now in the encroachment there would be a house here or there would be a house over the whole center of the line ... same situa- tion over here. The house could be in the center and we wouldn't know that unless we had a survey. What, in effect, I have been saying is that this is not a proper procedure in dealing with the application by an outside applicant or person in this Town or out of this Town in requesting a vacant land CO. ¢ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 27 I thank you for bearing with me and my illustrations. The only question I have of Mr. Lessard is that it is my understand- ing in the code respective of the issue of a 1966 exception list or 1989 exception list, it is clearly stated, in my understanding, that the Building Inspector is to request a single and separate search for the particular parcel that is requesting that land CO. That is my understanding. I am incorrect in that, why am I vacant Now if incorrect in that? MR. LESSARD: It is my understanding, through three attorneys now that work for the Town, that if it is an improved sub- division, if it is an excepted subdivision, it doesn't need a title search, number one. We put that in. We put that in two years ago or whatever it was, Gerry, and if you go see the so-called title searches that I have looked at, I believe I found one in the last 15 that were zoned bogus. As far as this diagram is concerned, yes, if you have two lots indicated with a 1 2 3 4 5 6 7 8 9 10 11 t2 13 14 '~5 16 17 18 19 20 21 22 23 24 25 28 solid line, the control factor on that would be subdivision or no, where that house is. If that house is going through that middle line, that person will not get a permit until he gets an attorney who files a paper with the surveyor's lots. that. office merging those two The dotted lines are good examples of The Nassau Point properties show up to six dotted lines considers one piece. properties, cepted. It on what the County We have Nassau Point one, two, three and four ex- tears me up to have to say yes. They are separate lots. Okay. Some of them are 40 feet wide, but the law is the law. Now as far as the County is con- cerned, this is the greatest problem in the world for the Building Department because back in the '70s, in the grandfather list and all of that, people had the bad habit of hiring an attorney, laying out the property, circumventing the Town, filing with the County, and we have to pick that up and say, "Fine, but now you have to come here to the ¢ ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 29 Planning Board and property subdivide ac- cording to the Town rules." Case in point, Blue Horizons up here in Peconic, even when we had accepted the Master Plan and you can see it on the map. ! will take you right out there. There are 48 lots in Blue Horizons, but there isn't. There are eight lots up on the Sound. The rest is laid out to preserve, but that was a bad habit here in the '70s. To hell with the Town. We will circumvent them, get an attorney for help, and bound file them with the County. Another problem I had in the early part of the '80s, the law says when you have a minor subdivision, the applicants, not the Planning Board, the applicants must file with the County within 90 days or the sub- division becomes mute. I can take you in the Planning Board and show you 200 lots that never hit the County, the so-called set off nonsense they were doing out here. That is another problem. It is not an easy matter. In fact, we talked to the attorney. 1 2 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 issue it. Victor, 3O I don't believe this Town will ever any more vacant lands. It isn't worth THE CHAIRMAN: but I thought I understand that, the reason for the single and separate search was to clear that matter up. I thought that was the reason for ... in 1988, the reason for making that. MR. LESSARD: That is true, Gerry, but this Town Attorney said to me if it is an improved subdivision or on the excepted list there is no need for the search. It is there. The record is there. The record is in the assessor's office. The only time that you go for that is if there is no clear subdivision that has been approved. Now you want to know how that lot got there and the chain of command obviously. THE CHAIRMAN: You are referring to prescribed property only. MR. LESSARD: Absolutely. THE CHAIRMAN: The problem I have is that when I discussed this with Mr. Hills (phonetic spelling) on or about the 10th of 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 31 December 1989, I turned to the excepted list and the present code and, of course, did not find the amended map of Mattituck Properties on that. On that basis I called and said to him, at that particular time, that ! didn't see it there and it does not appear to be excepted at this particular point, meaning excepted, and for the life of me I don't know how one can go back to a 1966 code. Now I understand that is what Jay Schondebare did, because I spoke to him concurrently the next day after I spoke to Mr. Hills and he told me he spoke to the prior surveyor who was imported by the Town at one time, and he indicated to me that what you had given as testimony tonight was the reason for these excepted lists, or excepting them, and therefore the loss of these will not be carried through to the entire code up to the present day. The only problem I have with that is that in 1966 it would be assumed that this particular subdivision could be on the excepted list, because we had 12,500 square 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 foot zoning at that time. Our zoning was 100 by 125. Those lots are 50 by 150. So they have very simply lacked by 5,000 square feet, the normal square footage that would have made them actually legal. That was the reason why I assumed they were on the 1966 code. I mean, I MR. MOORE: I understand you, sense to be on subdivision at zoning at that could be wrong. If I could interject. If doesn't it make a lot of the excepted list ii the the time comprise what the time? THE CHAIRMAN: That is correct. That the reason they were on it. MR. MOORE: You have identified the problem here, which is the January 1989 adoption of the new Master Plan included in this new version of 100-244. That section of the code doesn't work with the exception list. It just doesn't make sense. One of it has to go, and you hear the Building Department is doing its very best to inter- pret and apply the code, and the back end of the new code is this nonconforming lot 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 provision requiring single and separate search. If pretation is 33 the Building Department inter- that it was from the exception list and those 1966 lists are still good, is not going to say I need a single and separate search. That's where you get problem with the code, in that respect. said I will his sat code no longer applies. It is no longer with us. he the land was issued under the other code, not the Master Plan code. Going back to our MR. LESSARD: Two things, Gerry, so we don't go too far afield here. The vacant THE CHAIRMAN: We don't have a problem with the code, because I said to Jay Schondebare at that particular point ... I take it to the Board. But in office, at that particular point, as I in his office I told him that the 1966 It is phased out. We are dealing with it based upon the 1989 code. ?here- fore, this lot to stand would require a set off by this Board and very simply a process of the Planning Board, which you are aware of, because we do it concurrently. 6 7 8 9 10 11 12 13 14 ~5 16 17 18 19 20 21 22 23 24 25 34 theory of this 1966 lot being X amount of feet short of 12,500, using that theory, how do you justify going into 1971, or November 20, 1970, into one acre zoning by putting on the exception list something that goes down to 5,000 feet, one-third smaller than the ones that were on there? the theory. THE CHAIRMAN: can tell you, ment of what I don't understand Well, the only thing I if this is a historical docu- is happening in this Town, very simply, before the adoption of that par- ticular situation of going from 12,500 to 20,000 square foot lots, which was quirement by the Health Department, one acre zoning. January 1, 1971 the Planning Board was asked to look at all the subdivisions and to make a determination in 45 percent. Those subdivisions were built, were improved, and that is what basically ended up on the accepted list for the new code in 1971. Now, if you ask me presently what a re- then to That was in 1971, as of ... was prior to that date 1 2 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 '24 25 that means, I don't know. ended up on that accepted list in is what they had simply looked at. I assume whatever 1971, that Now they may have missed one or two, but John Wickham who was the Chairman at that time, or Henry Raynor (phonetic spelling) could probably answer the question better than I could. All I can tell you is there was one, and there was subdivisions on that list. They are available. It was not my suggestion that the prior Town Attorney should be asking a surveyor in this Town how that was arrived at. That person was not an employee of that Town at the time that either the '66 sub- division exception list was produced, or the '71, or '72, or '73 ... whatever the situa- tion is when those areas were revised and that is what concerns me. Because I think, Victor, you got bad information. I mean, I really do. I think he should have come to us first before he issued that letter and he should have asked us. MR. LESSARD: Who is that? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 37 vacant land that had been built on. Do you realize the chaos it is going to start and what legal basis are you going to rely on? THE CHAIRMAN: I think we have to rely on the fact that the vacant land CO is really not worth the paper it is written on. one of MR. LESSARD: THE CHAIRMAN: these vacant I knew that part. Number two, that every land CO's should require a set off by this Board and concurrently by the Planning Board, and that is really the only way you can deal with it. So what I am asking is that from this particular point on, that is basically the area that is adhered to so we don't have any more of these problems. And if the legislative committee, which was organized and used to be the committee, which is part of this town which alters or modifies this particular code, feels that there are other subdivisions that should be placed on this exception list, or accepted list, meaning existing subdivisions we add to the list, we run over it and add to the list. 2 3 4 5 6 7 8 9 ~0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 36 THE CHAIRMAN: The prior Town Attor- ney, and he should have said to us what do you think, because I really don't think that information was correct because he was relying on a person who is not an employee of the Town ... certainly had tremendous things for historic value to what exists ... but was not from the inside of the Town ... was not a member of the Planning Board and certainly ... a question, I I mean, if I was going to ask would call John Wickham. He is the biggest source of informa- tion. The man is 76 years old and he is a tremendous reference to historical back- ground, just as Charlie is ... excuse me for mentioning ... at 73. Serge is in Europe now. He is not with us. MR. LESSARD: I have a problem in this respect. This was started, a practice long before ! got here, because it was a standard practice. I don't know what the Town is going to do, because now we are going one step further. You could have as many as 100 ... 150 of these not acceptable 1 3 4 5 6 7 8 9 10 11 12 ~i3 14 15 16 17 18 19 20 21 22 23 24 25 39 that was set long before I got here. I used the Town Attorneys. Mr. Tacka (phonetic spelling) mostly. Bless him. He is gone. That is where I learned my business from. He wrote the book, and subsequently I worked through three other Town Attorneys. I don't know what else I can tell you. I live with this thing seven days a week. That may be where the difference is. I don't know. MR. MOORE: Mr. Chairman, you have made some comments this evening which have given me some food for thought, some avenues of research and some into if ! may. THE CHAIRMAN: ing? would like to look Concerning this hear- MR. MOORE: Yes. You raised some information here which could help me. ! would like to explore it. My request would be to adjourn the hearing, not to close it, tonight. matter a THE CHAIR/4AN: So perhaps we can explore this little further. We will see who else 1 2 3 4 5 6 7 8 9 10 11 12 '13 14 15 16 17 18 19 20 21 22 23 24 25 38 My concern is that at 80,000 square feet this particular subdivision is not in that exception list. 7,500 square foot lots, and that the reason why it is not there. Very simply, we have I assume is MR. LESSARD: We have a lot of 5,000 square foot lots that are on that list. If we are going to take that attitude ... we, the Town, then I strongly suggest we eliminate all exceptions, all accepted lists. There is no way in my mind that you can take the 10 or 12 or whatever thousand square foot lot and say we are in two acre zoning because the next thing that follows is the guy next-door wants to cut his in half because it is inconsistent with the area. With the domino theory and without realizing, you can forget the two acre zoning. You are down to all quarter acres. I don't know what is going to come out of this. All I can see, at this point, is there is goinq to be one hell of a lot of chaos around here. All I did, I ... the Building Department did, was follow practice 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 40 wants to speak, and we will discuss it after that. The purpose of this hearing tonight was to include this one and the other one. MR. MOORE: I am sorry. I didn't gather than from the information I had in the transcript or otherwise. MR. fusion, here. LESSARD: So there is no con- had a letter from the Town to be am not here to take either side. want that very clearly understood here. THE CHAIRMAN: Right. I appreciate that, Victor. animosity. MR. That is not why I am here. We have a problem and I want the answer to it. THE CHAIRMAN: thing you would like MR. OCHSENRETER: object to the building I don't think there is any LESSARD: I don't want animosity. Okay. Is there any- to say, gentlemen? Yes. I do not permit that was issued in 1984, two houses down from me, because I understood that, the single and separate ownership. I didn't get into this on personalities, relationships, real or 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 1 2 3 4 5 first i-ou~ht i% ir. 1973 we got t~,'o and those ~roperties were merged after th~t. ~,: ~e+ one tax bill. There has ~;een a lot of property in that r, ei:zh]?orhoo~ ~here people in faith believed they could not build and that was {ny --z~-,-=e~, s'~- ,,~u ......... n,-:, g ~:n~i that t ~ nk ' the record? U'cu ,r,",l.lec~ me. MS. ~aver 9oad, quos f i on, The house has 73eon ARMBRUST: Dorothy Armbrust, 595 adjacent to t~:~ ~:~;~,erty in I h~ve lived there :~ince 1930. u~ there ~ince 3972, I aold the property. by my mother in 1950.. Parizot. and in 1950 The lot was left to me and her name was Kate¥ that I could not tske - .-,,x:..~,. . L -ec~'.!£,e ~ owned a piece of property contiguous to mine, that ~k~t '!~ was not built on the not }:uildable .. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2'5 42 was told as build on it, the Bettners, The Bettners (phonetic spelling) inquired about it, and I sold it to the Bettners. I inquired at the Town Hall and long as I held the lot I could but after it was once sold to it could not he built on any longer because that was the law at the time. I don't know who I spoke with. My husband was alive at the time and he is now deceased 11 years. So he probably knows what date it was, and I think it was about '68. The Bettners held it, I believe, until 1972 when they sold it to the Spanos, and that was the way the property stood until the Spanos sold it in June of '89. had been in the hospital and I did not know too much about it, but they came and sur- veyed and said that built upon because be built on once it property couldn't be I was told it could not left my hands. I don't know if there is something wrong in the Town Board, as far as I can see, if they changed their minds. I was not notified that it was bought separately to he 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 43 a lot to be built on. Had I been notified ... but then I had been in the hospital ... but there was no mail to that effect. So I did not know. That's all I can say. I really don't approve of the property, but ... THE CHAIRMAN: Thank you very much. MS. ARMBRUST: Because I think I should have been contacted before it was to be built on, but I did not receive any information beforehand. THE CHAIRMAN: Thank you. Thank you for coming out tonight. Is there anybody else that would like to speak in the applicant's behalf? MR. LENCESKI: Edward Lenceski. Specifically looking at the situation which our petition presented to the Zoning Board, okay, is a situation where Lot Numbers 35 and 36 were deeded as one single lot of dimensions 100 by 150 to the Spanos back in 1972. In 1972 a certificate of occupancy for a one family dwelling on a lot 100 by 150 was issued by the Building Department. ! 2 6 8 9 ~0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In November of 1989, was issued by Mr. Lessard. who applied for that ing when ! contacted 44 a vacant land CO We do not know permit. My understand- the Town concerning neighbors was done. dividing my property which is across the street, which is a very similar situation, was told that, number one, I would have to apply for the variance through the Town. For what? From what I understand, a variance means notifying all the neighbors and having a hearing from the Zoning Board to see if this would be approved. Now this situation, a lot across the street, Lot Numbers 35 and 36, none of the were notified. This miraculously This lot was split into two. We don't know how it was done. No variance was ever applied for, from what I understand. We talk about an exception list. know in Heights January of '89, that Mattituck subdivision was deleted. Our peri- tion is how was any building permit issued by the Building Department? At the last hearing we had discussed ¢ 1 2 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 45 our timeliness and why did we wait so long to do this. I remember when, when that foundation went in, in August of '89, we had no idea what was going up there. When the building permit was posted, we could have gone to the Town and questioned under that building permit what was going on there. We didn't know if it was a garage. There was a rumor in the neighborhood it was going to be a swimming pool. This was a rumor. We did not understand. We did not know what was going on. There was a period of time, from August until February, when no construction at all was done. We do not understand why, if somebody was putting up a house, why there was such a long delay. I don't know ... about a foundation took that long to cure ... but that is not the point here. lot Getting back to the originally deeded that was in the name of Spano, our petition asked the Town Board how a permit was issued and how is this subdivided in this respect? That's all I can say at ! 2 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 23 24 25 this time. THE CHAIRMAN: MR. LENCESKI: THE CHAIRMAN: 46 Thank you. Thank you. Is there anybody else? rebuttal? MR. ZAHRA: been going through there anything you would like to say in Charles Zahra. I have this for three years. It of time. I have been observing this case and I think the merits of this case fall on two documents. They are the building zone ordinances of the Town of Southold, which is one dated May 24, 1966, and it lists all the subdivision exceptions, including the property in question. As was mentioned before, and the amendment of 10/30/73, which is, I believe, was incorrectly stated before ... I think someone mentioned 1970 ... and you will find you won't find any of the subdivision lists from 1966 on this. Basically, that means that in this amendment it caused the is a matter of record that I have viewed many documents in Town Hall over this period ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 subdivisions as any effect. 47 to be completely deleted just other ordinance would have the same I have two copies to submit to you. Mr. Lessard mentioned one of the problems he foresees is a lot of these houses have been built and now could be deemed illegally built. I would think the more serious problem is if this Board upholds what Mr. Lessard has done, I think it opens the floodgates to all of the sub- divisions to now come in and apply to have to build homes. Even to the extent of an individual having a house up, now having it torn down. He may try possibly. I know of a situation where houses have been built on four and five lots, one house with maybe a swimming pool. It would behoove him to level that property and now built four or five houses, and I think we are talking about many homes ... one hundred. say. That is basically all I have to THE CHAIRMAN: Thank you. MS. GARClA: Corrine Lessard-Oarcia. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I own the property Home house. Clearing up a ters, at my closing, first, adjacent to the Inland couple of mat- my sister-in- 48 street, ... Mr. believe in January, before I went through the Health Department Raynor (phonetic spelling), I even bought the law Susan Lessard researched it. There were two separate deeds at my closing. We paid two separate tax bills, single and separate. There was never a rumor going around in the neighborhood of a swimming pool. Mr. Zahra was overhead at the last hearing telling Mr. Lenceski, "You should have told him it was swimming pool." That is what we are dealing with here. It is not all facts. The facts are there are two separate tax bills. I paid two separate tax bills at the closing, Town and County. That is all have to say. THE CHAIRMAN: Thank you. MS. GARCIA: Also, one more thing. Mr. Ochsenreter is an employee of the Health Department. Now if they were so worried about what I was doing across the ¢ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 49 property, and got their approval. Now it is professional courtesy for him to go and find out these are the systems you have to go through. You have to go to the Health Department to get permission to do these things. If there was something going on, the paper work was finished in January. He could have very easily gone and looked it up. Thank you. THE CHAIRMAN: Thank you. MR. OCHSENRETER: I would like to say something. I do separate my private life from my business life. I work for the swimming pool and bathing beach section. have nothing to do with wastewater manage- ment. I keep them separate. MR. ZAHRA.: This lady just mentioned that she overhead me speaking to Mr. Lences- ki, instructing him to tell the Board it was in fact a swimming pool. This is totally incorrect. If she wanted to join in the conversation, I would have invited her in. What basically had been said ... Mr. Lenceski at an earlier moment mentioned to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 50 me that he was told, as well as Mr. Ochsen- refer, that it was a swimming pool. That is what she overheard me saying ... was to Mr. Lenceski: told to you. Okay. Sure. Go tell the Board what was That it was a swimming pool. THE CHAIRMAN: Thank you. MR. ZAHRA: Now she mentioned a point on having single and separate tax deeds on the property. And this brings up ... I didn't want to bring this up. I didn't think it was necessary because it is not a subdivision, but I find a lot of similarities in this case, that is of Mr. Hines, better known to everyone here as The Candy Man, out in East Marion. I would also like to mention Mr. Tohill defended The Candy Man in an article that was an Article 78 proceeding and he lost. I would just like to mention, and enter into the record, a couple of articles from that Article 78 proceeding stating why he lost ... as well ... why the petitioner lost. THE CHAIRMAN: Can you just give a ¢ 8 9 10 11 12 13 14 15 16 17 18 ~9 20 21 22 23 24 25 little foundation on how you do show a similarity? MR. ZAHRA: in Orient to this case with regards to the property being single and separate. It did have single and separate tax cards. I have copies of them here. I will submit them. Mr. Hines also had single and separate tax compare the Hines case fight his rights them. It is an Article 78 I just jumped around here in of time. cards when he went in to and was denied proceeding. the interest In one paragraph it says that petitioner's property was purchased as two separate parcels. One was purchased in '82, and the second parcel purchased in '84. The Clerk includes that merge, did a hear by operation of 100-31 of the Zoning Ordinance of the Town of Southold, which excepts lots held in single and separate ownership prior to '71, from the new one acre requirement. Since petitioner's '62 and '64, merge I'll parcels were purchased in occurred in '64. hand that up, if you will give 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 23 24 25 52 One other item I would like to hand up is Exhibit B of Mr. Tohill's Article 78 to the Court. You have a record of this, Gerry, in your office. This is where I copied this material from, for the benefit of Mr. Moore. One paragraph, it says: Each parcel has received a single tax invoice from the Town of Southold. to mention single and basically the same as the Garcias that for the record. separate tax cards of Mr. Hines, ... who are now Mr. Hines. I will just hand this stuff up and I will he finished here. timely, with I just want These are me a second to get this stuff together. I want to mention one other thing with regards to being timely, as Mr. Tohill said, and Mr. Moore tonight again. In Mr. Hines' case, the building permit was issued on March 22, 1985 to contract a one family dwelling on this parcel. December 23, 1985, Mr. Hines received the stop work order and revocation of his permit from the Building Department or with taxes being taxes being eight months later. ! 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 me a second to get this stuff together. I want to mention one other thing with regards to being timely, as Mr. Tohill said, and Mr. Moore tonight again. In Mr. Hines' case, the building permit was issued on March 22, 1985 to contract a one family dwelling on this parcel. December 23, 1985, Mr. Hines received the stop work order and revocation of his permit from the Building Department or with taxes being timely, with taxes being eight months later. I just want to mention that for the record. These are single and separate tax cards of Mr. Hines, basically the same as the Garcias ... who are now Mr. Hines. I will just hand this stuff up and I will be finished here. One other item I would like to hand up is Exhibit B of Mr. Tohill's Article 78 to the Court. You have a record of this, Gerry, in your office. This is where ! copied this material from, for the benefit of Mr. Moore. One paragraph, it says: Each parcel has received a single tax invoice from the Town of Southold. 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 22 23 24 25 I am finished, get this together. THE CHAIRMAN: MR. LESSARD: 53 Gerry. I will just Yes, Mr. Lessard? I did not want to stick my nose into this latest thing, but I couldn't let this thing go by and confuse the issue here tonight. First of all, Mr. Hines did not have an approved or excepted subdivision. Mr. Hines had two lots that he put in the iden- tical name, as this Board is very well aware of, because it came to this Board. Mr. Hines came in and said to me, because I wrote the permit, that they were single and separate and he flashed two tax things I saw here. Mr. Hines got his permit and sat on it until after the fruit crop that he had on that second piece of property had matured, which put him into late October. So that knocked the hell out of that time argument I just heard as to bearing on what we are talking about tonight. We are mixing apples and oranges here, and I damn well don't believe it should crowd this 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 issue at all. Otherwise, I wouldn't have said anything. THE CHAIRMAN: Thank you. MR. DINIZIO: Can I ask you a ques- the Zoning tion? What was the outcome of Board's hearing on Mr. Hines? MR. LESSARD: What was the outcome? He had bogus applicationa. He did not have an approved subdivision. He already had two or maybe three houses on the other one lot. There was a lot of reasons why the Board ... if you check the records in the Zoning Board of Appeals you find out right away what it is all about. MR. DINIZIO: Article 78 we just heard about was after that. MR. LESSARD: Yes. THE CHAIRMAN: It went to the Supreme Court and they reaffirmed our decision. Mr. Moore, is there something you would like to tell us on what you are look- ing into? I would really dearly like to close this hearing. 1 2 4 5 6 7 8 9 10 '~1 12 13 '~4 15 16 17 18 19 20 21 22 23 24 25 55 MR. MOORE: I understand. I would like to explore that exception list, and you have indicated some fruitful avenues of information. THE CHAIRMAN: Could you do that? MR. MOORE: The other half was, Mr. Lessard mentioned issuing several, I don't know, vacant land CO's or building permits on similarly situated exception area sub- divisions. I would like to explore that fully. That may take time. THE CHAIRMAN: We will put you on for the last hearing on the 19th, but I want to keep the testimony brief so that we can wrap it up. MR. MOORE: That would be fine. THE CHAIRMAN: I don't say that it's going to be a pretty good hearing. There is going to be a lot of people here. I don't mean in reference to the numbers. I am talking the length of time of hearings and that is the only thing I can offer you at this particular point. Does anybody have any objections 1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to that? MR. DINIZIO: No. I would like to have the tax, accurate tax ... THE CHAIRMAN: You want a bill? MR. DINIZIO: The bills. MR. MOORE: Tax bills we can get you. MR. DINIZIO: I would just like to have copies of them. MR. MOORE: That can be easily accom- modated. THE CHAIRMAN: Mr. Zahra has one other mind. question or statement, if you wouldn't MR. ZAHRA: ! would just like to say one other thing with regard to the material I submitted to you, with reference to The Candy Man or Mr. Hines' property. My focus of attention was on the fact that he had single and separate tax codes. That is basically it, Gerry, okay? And you have to understand I know so little about zoning. THE CHAIRMAN: Thank you. Anything further from anyone that ! 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 might not be here on the 19th or abouts? Hearing nothing further, 57 there- seeing no further hands, I make a motion recessing the hearing until the 19th, which we will readvertise if there is a minor change in the date, along with all the other hearings. MR. DINIZIO: Second. THE CHAIRMAN: All in favor? MR. GRIGONIS: Aye. MR. SAWICKI: Aye. MR. DINIZIO: Aye. THE CHAIRMAN: I thank you very much for your courtesy and for coming in. Thank you, Victor, for your opinion and concern in stating the case. (Time noted: 9:34 p.m.) I, GAIL ROSCHEN, do hereby certify that I am an Official Court Reporter, and that the foregoing constitutes a true and correct transcript according to my official stenographic notes. GAIL ROSCHEN Official Court Reporter HARVEY A. ARNOFF Town Attorney MATI3-1EW G. KIERNAN Assistant Town Attorney OFFICE OF THE TOWN ATTORNEY 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 MEMORANDUM FROM: Harvey A. Arnoff, Town Atto RE: Appl. No. 3908 - OCHSENREITER & LB~,F~K~ (Variance) DATE: July 13, 1990 I note that you have received a letter from Robert J. Ochsenreiter regarding the Bayer Road problem. May I suggest that we discuss this at our meeting Tuesday night, so that I may respond to the letter promptly. APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCO'I"r L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 TOWN ATTORNEY'S OFFICE TOWN OF SOUTHOLD June 6: 1990 Mr. Robert Ochsenreiter 600 Bayer Road Mattituck, NY 11952 Mr. Edward Lenceski 500 Bayer Road Mattituck, NY 11952 Re: Appl. No. 3908 - OCHSENREITER & LENCESKI (Variance) Dear Mr. Lenceski, Transmitted for your records is a copy of the recent determination rendered by the Board of Appeals concerning your application. Yours very truly, GERARD P. GOEHRINGER CHAIRMAN Enclosure Copy of Decision to: Mr. Victor Lessard, Principal Bldg. Insp. Office of the Building Department Office of the Planning Board Harvey Arnoff, Town Attorney Harvey A. Arnoff, Esq. Town Attorney Town of Southold 53095 Main Road Southold, NY 11971 July 6, 1990 Dear Mr. Arnoff: Enclosed is a copy of a Zoning Board of Appeals decision rendered May 15, 1990 and mailed to me on June 6, 1990 concerning a recently constructed house on Bayer Road in Mattituck. As of this date, it appears that the Town has taken no action beyond what is contained in the ZBA proceedings. To the best of my belief, a Certificate of Occupancy has been issued for the house and, also to the best of my belief, this is still in effect. The house is being actively advertised for sale as, again to the best of my belief, a mother/daughter (1). I expect that the Town of Southold will enforce its laws without requiring me to incur legal fees beyond what I have already spent. I am herewith requesting that the Certificate of Occupancy issued for a house built with a building permit deemed "...invalid, null, void and of no effect." be withdrawn and that the Town of Southold take further action to ensure that the value of my property, located directly across Bayer Road from the subject house, will not be reduced. S~cerel~ cc: Gerard P. Goehringer, Chairman ZBA APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTt L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 June 6, 1990 Mr. Robert Ochsenreiter 600 Bayer Road Mattituck, NY 11952 Mr. Edward Lenceski 500 Bayer Road Mattituck, NY 11952 Re: Appl. No. 3908 - OCHSENREITER & LENCESKI (Variance) Dear Mr. Ochsenreiter, Transmitted for your records is a copy of the recent determination rendered by the Board of Appeals concerning your application. Yours very truly, GERARD P. GOEHRINGER CHAIRMAN Enclosure Copy of Decision to: Mr. Victor Lessard, Principal Bldg. Office of the Building Department Office of the Planning Board Harvey Arnoff, Town Attorney Insp. APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. Telephone (516) 765-1809 BOARD OF APPEALS TOWN OF SOUTHOLD SCOTt L. HARRIS Supervisor Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 June 6, 1990 Mr. Robert Ochsenreiter 600 Bayer Road Mattituck, NY 11952 Mr. Edward Lenceski 500 Bayer Road Mattituck, NY 11952 Re: Appl. No. 3908 - OCHSENREITER & LENCESKI (Variance) Dear Mr. Lenceski, Transmitted for your records is a copy of the recent determination rendered by the Board of Appeals concerning your application. Yours very GERARD P. GOER-RINGER CHAIRMAN Enclosure Copy of Decision to: Mr. Victor Lessard, Principal Bldg. Office of the Building Department Office of the Planning Board Harvey Arnoff, Town Attorney Insp. APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. 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 Harvey Arnoff, Esq. Town Attorney FROM: Matthew Kiernan, Esq. Assistant Town Attorney Zoning Board~of Appeals~ DATE: May 16, 1990 RE: Appl. No. 3908 Inland Homes (Ochsenreiter/Lenceski) In the latter part of August of 1989 I was approached by Eric Bressler who indicated to me that construction in the way of a foundation commenced on a lot which was owned by Victor Lessard's daughter. Subsequent to August 9, 1989, this lot was sold to Inland Homes, Westphalia Road, Mattituck. Mr. Bressler asked me what he thought he should do concerning the construction and what appeared to be a merged lot (merged with the house). I told him that all inquiries as to complaints on building permits should be directed to the Town Attorney. On or about early September 1989, on my lunch hour, I conducted a single and separate search of said property. It indicated that the house lot was purchased by Paul Bittner and wife in 1942 and in 1962 they purchased the lot in question, which is now being constructed upon. In 1962 the zoning was 12,500 sq. ft. or 100 by 125. This lot was approximately 50 by 150 or 7500 -sq. ft. which rendered the lot substandard at the time it was Purchased. It should be noted that these parcels were merged in the same name subsequent to its purchase in 1962. In 1974 or there about, Mr. and Mrs. Spano purchased the property (both parcels) in both their names, thereby continuing the merger. This continued until 1989 when they deeded the house parcel to the Garcias and I believe the lot to Mrs. Garcia, thereby creating an illegal set-off. Mrs. Garcia then deeded her rights in the lot to Inland Homes on or about August 9, 1989. This Board was unaware of the memo between Dan Ross and Jay Schondabare until early December when a discussion ensued between Mr. Schondebare and myself regarding the legality of this parcel. He told me that he had spoken to a surveyor in town who had told him that older subdivisions were dropped from .time to time from the exempted list. I asked why he did not speak to John Wickham, Henry Raynor, or Howard Terry concerning this particular situation. In any case, I told him that in my opinion that the subdivision was not on the exempted list of the present code, it was not exempt. Miraculously, approximately two days after, Mr. Hiltz called me at my home and I told him the same thing. The only other knowledge that I have is, on or about January 9, 1990, construction above gr6und commenced on the site and on or about the 15th of January 1990, an application made by Mr. Ochsenreiter and Mr. Lenceski came in to our Board to overturn the permit. Please be advised that these are statements of opinion based upon fact, with full knowledge that they are as accurate to the best of my ability. ZBA/df VICTOR LESSARD PRINCIPAL BUILDING INSPECTOR (516) 765-1802 FAX (516) 765-1823 Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 OFFICE OF BUILDING INSPECTOR TOWN OF SOUTHOLD TO: FROM: SUBJECT: May 9, 1990 ZONING BOARD OF APPEALS BUILDING DEPARTMENT ~ REPLY TO MEMO MAY 9, 1990 REFERENCE APPEAL #3908 Your May 9, 1990 response to my May 8, 1990 response to your May 4, 1990 inquiry on Certificate of Occupancy on your case #3908 was quite clear in my eyes. The second paragraph was information imparted to me in conversation at a function I was attending. I felt it would behoove the Town and your board to check to see if such a ruling existed. I mentioned attorney only in passing be- cause of credibility to such information. Friends do talk to friends regardless of their livelihood. This friend is not in- volved in this case what-so-ever. VGL:hkd cc: Town Attorney Small Lots Big Trouble° Southold Dispute Could Set Precedent S~)UTHOLD -- Hundreds of properties merged and became one Tohill, who spoke at the February substandard lots in old subdivisions parcel as the town upgraded the hearing, and WilLiam Moore, who could turn into legal building lots virtually overnight if the Town Board of Appeals upholds a building permit issued in a precedent-setting case that both sides say will create chaos at its conclusion. The case involves a building per- ~mit issued in August to Inland Homes for a 50-foot by 150-foot lot on Bayer Road in Mattituck. Neighbors Robert Ochsenreiter and Edward Lenceski want the Appeals Board to revoke the permit. They say the 7,500 square-foot-lot was 'connected to an adjoining parcel with an existing house, and the t'~: zoning code over the years, said he was "substituting for And despite a letter sent by the Tohill" at last week's hearing, ask- neighbors' former attorney, Dan ed that the case be dismissed on a Ross, notifying the former town at- technicality. tomey in October of the complaint,. The attorneys maintain that con- no action was taken and, in mid- struction started on August 30 January, Inland Homes started construction of a two-story 2,500-- square-foot 'tgmse. Ochsenreiter and Lenceski filed an appeal the day after consrrncfion started, but by the time it came up for a hear- ing before the ZBA on February 1, the house was nearly completed. Request Case Dismissed Inland Home's attorney Anthony when the site was excavated and a foundation laid the next day. The appeal was Bled too late, the at- torneys said, because the neighbors should have known that a house was going up when the foundation was poured. Notifying the town torney that the permit may not be valid did not follow proper pro- cedure, the attorneys said. The ob- Small Lots Continued from Page 1 jections should have been Bled with the Building Department--but weren't until the day of the ZBA hearing. Town Officials Knew "The town government was notified and knew what was going on;' said Ochsenreiter, adding that from August until mid-January there was no activity at the site, and he assumed that town officials were investigating the matter after Ross sent the letter in October. During that time, he and other neighbors said, there was no building permit posted at the site, and residents initially had no way of knowing if the foundation was for a garage or an addition to the existing house, "When the foundation went in, we had no idea what was going on]' said Lenceski. "We heard rumors that it was going to be a swimming pool:' Permit Process Questioned Moore and Tohill have not i argued the merits of the case, but questions about the validity of the building permit and vacant land certificate of occupancy issued for the lot were raised at last week's hearing. Principal Building Inspec- tor Victor Lessard testified that he issued a vacant lot CO for the pro- perty in November 1989. He said that an old filed map indicated that the two lots were once separated and each received individual tax Furthermore, Lessard said, the old subdividion was exempt from the town's 1967 Zoning code, mean- ing that it would not be covered by subsequent upzonings. He said he has issued "at least 50 of these va- cant CO's that appeared on old [ex- emption] lists" under previous zon- ing codes. The subdivisions were not listed again when the town up- dated the code in 1973 and 1989, he said, because "once they were all developed they were taken off the lists to make room for others." Not Good Enough But ZBA Chairman Gerald/ Goehringer sa d the o d tax maps! only mean the two lots were pur- chased separately and do not in- dicate if the lots were held in single and separate ownership at the time of the upzonlngs. If not, the lots would be considered one parcel, he said. "We are dealing with a 1989 code7 said Goehringcr. "Therefore for this lot to stand, it would re- quire a setofC.' But Lessard said that his deci- · " ' hr" s~ons were based on a green hg that had been given by several of I the town's former attorneys and! that "one in 15" title searches are "bogus:' If that's the procedure, Lassard. said, "There's going to be one hell of a lot of chaos around here. There could be as many as 150 of these lots:' Builder's Dream Mattituck builder Charles Zahra said if the ZBA allows undersized lots in all of the old subdivisions to be exempt from the town's updated zoning ordinances "It will open the floodgates in all of these subdivi- sions to build homes:' In some of the old subdivisions, one owner may have four or five tiny lots that make up one piece of property where his home is located, Zahra said. "It would pay for him to level it and then build four homes7 he said. "We're talking many homes--hundreds." Subdivision Developed? After the meeting Ochsenreiter said that he and Lenceski both had houses on property with an attach- ed lot adjacent to it, just Like the In- land Homes' lot. "But we were told our tax bills were merged and that it wasn't a legal building lot;' said Ochsenreiter, adding that he in- quired about his vacant lot about five years ago. "I believe the chaos is just star- ting;' he said, noting that if the lots are exempt, another dozen houses could be built on what amounts to less than one-fifth acre lots in 'thc subdivision. "I'm just a dtizen7 he said. "We just want to know: was this done properly." The hearing will continue on Thursday, April 1~. --Lydia Tot lOC. Southold To~n Board 53095 Main Road Southold, NY 11971 RECEIVED JUL 9 1990 Sou+hold 'r ..... ,-L.,. July 6, 1990 Dear Members of the Town Board: Enclosed is a copy of a Zoning Board of Appeals decision rendered May 15~ 1990 and mailed to me on June 6, 1990 concerning a recently constructed house on Bayer Road in Mattituck. As of this date, it appears that the Town has taken no action beyond what is contained in the ZBA proceedings. To the best of my belief, a Certificate of Occupancy has been issued for the house and, also to the best of my belief, this is still in effect. The house is being actively advertised for sale as, again to the best of my belief, a mother/daughter (1). I expect that the Town of Southold will enforce its laws without requiring me to incur legal fees beyond what I have already spent. I am herewith requesting that the Certificate of Occupancy issued for a house built with a building permit deemed "...invalid, null, void and of no effect." be withdrawn and that the Town of Southold take further action to ensure that the value of my property, located directly across Bayer Road from the subject house, will not be reduced. i~iber t J. x,~ch~ cc: Gerard P. Goehringer, Chairman ZBA EXHIBIT J THE FOLLOWING PERTAINS TO LOTS 35 & 36 AT BAYER RD., MATTITUCK, NY EXHIBIT J PRESENTED TO SOUTHOLD TOWN ZONING BOARD, HEARING DATE 04/19/90 HISTORY -- DEVELOPMENT -- EVENT DATE 11/19/65 03/02/72 03/30/72 04/12/72 08/17/88 11/28/88 02/02/89 06/26/89 06/26/89 ??/??/?? ??/??/?? 08/08/89 08/30/89 08/31/89 Mrs. Armbrust sells Lot 36 to the Bittners only after being assured that Lot 36 was not a buildable lot by Town Officials. She would not have sold her lot if it was buildable. Certificate of Occupancy issued by Howard Terry, certifying that Lots 35 and 36 conform to requirements for occupancy as a One Family Dwelling. Van Tuyl, Greenport, surveys Lots 35 and 36 as a single parcel, with the dimensions of 100' frontage by 150' deep. A single deed is recorded with Suffolk County showing the transfer from the Bittners to the Spanos' of a single parcel comprised of Lot 35 and house upon and Lot 36. There does not appear to be any record of a separate deed for 35 or 36 issued as single or separate to the Spanos'. Building Permit #17324 is issued to the Spanos' in order to add a deck to their house on Lot 35. It seems that a deck was previously added which was removed and then rebuilt. Vacant Land C.O. issued for Lot 36 to the Spanos' by Victor Lessard. Suffolk County Health Department Site Approval stamped on the 1972 Spanos' Survey with a sketch of a new structure shown; issued to Corinne Lessard Garcia for Lot 36. The Spanos' sell Lot 35 and house by separate deed to Richard Garcia and Corinne Lessard Garcia. The Spanos' sell Lot 36 by separate deed to Richard Garcia. Sale of Lot 36 from Richard Garcia to Inland Homes. A survey was completed, however what the survey meant was unknown. Orange stakes and/or paint markers were placed around Lot 36 and approximately through the middle of a blacktop driveway on Lot 35. Building Permit #18355 for a One Family Dwelling, cost $75,000,' Lot 36 issued to Inland homes by Curtis Horton. This permit was not prominently displayed on Lot 36 as required by Town rules. Excavation started at Lot 36. Foundation forms, etc. started at Lot 36. EXHIBIT J DATE 10/17/s9 10126189 12/11/89 01/08/90 o11o919o O1/lO/9O 01/15/90 01/26/90 02/01/90 03/29/90 HISTORY -- DEVELOPMENT -- EVENT After inquiry by neighbors Ochsenreiter and Lenceski, Daniel Ross writes a letter to Southold Town Attorney, James Schondebare, raising the question whether Lot 36 is a legal building lot (copy attached). Local newspaper articles, copies attached, publicly open this question of the legality of Lot 36. These articles indicate that the Town Building Inspector was then aware that the actions to date were being questioned. The article in the 10/26/89 Suffolk Times states that the Lot was reinspected on 09/13/89 and that the permit was still valid. Mr. Schondebare writes to Mr. Ross, stating that he received the material presented and it is of his opinion that Lot 36 is a legal lot~ however the final interpretation of Zoning Code, under both Town Code and Law, rests with The Board of Appeals. A copy this letter went to the Building Department (copy attached). Foundation at Lot 36 is backfilled. The neighbors, Ochsenreiter and Lenceskt, upon direction of Mr. Ross, call his office to notify him that activity had restarted at Lot 36, at which time the present ZBA petition was prepared and signed. Petition notice mailed at Post Office. Petition notice received by ?Mr. Towhill/? Inland Homes? Deck framing started. Note dated 01/26/90 in file f~om Building Inspector which says he ha~ no knowledge of either Mr. Ochsenreiter or Mr. Lenceski. Initial ZBA Hearing. Timing of petition and jurisdiction questioned by Mr. Towhtll. Second ZBA Hearing. Counsel for Inland Homes changes to Mr. Moore. He needs adjournment to study zoning and other instances of non-conforming lots. Mrs. Armbrust, a neighbor, states her objection, relating the history of Lot 36 dating back to the 1930's. All of the above dates and events are in chronological order. Many of the dates were ascertained from transcript of the 02/01/90 ZBA Hearing, and from events which have transpired to date. These are presented to help clear some of the questions as to timeliness and Jurisdiction. Additionally, the Building Permit for Lot 36 was never displayed to date. LONG, ISLAND, TRAV~ELER*WATCHMAN PAGE TWo THURSDAY, OCTOBER 26, 1989. Officials-Questioned. On'Daughter's Permit SOUTHOLD -- A Mattituck lawyer wrote to Town Attorn~ James Schondeharc this week ques- tioning the l~gality of a buildin~ permit issued for one of two lots in- volving Principal Building Inspec- tor Victor Lessard's daugher, Cor- inne Garcin. Attorney Dan Ross said he. had been retained by neighbors to find out why a building permit had been issued for construction of a single- family house on a 50-foot by 150-foot lot on Bayer Road in Mat- tituck. According to county records, he said, a subdivision known as Mattituck Heights was filed in 1938, indicating two lots, each of 7,500 square feet. A house was built on one lot, and the other remained vacant until this~ summer when foundation work began for a house on Lot 36, he said. The lots, he maintains, were~ legally merged, because through the' years they were not held in single and separate ownership and therefor~ not e~,cmpt from the town's subsequent rezonings. Ross said the lots were owned by Leonard Spanos froot 1972 until June, 1989~ when he sold the lot with the house to Lexsard's dangh~r and her husband, Richard Garda. On the same day, Ross said, In August, Ross said, a building permit was issued to Inland Homes to construct a single-family house on the vacant lot. "A foundation went in and some of the neighbors made noise and asked us to investigate;' said Ross. adding: "In our opinion thc two lots were merged and Lot 36 does not exist as a legal building lot:' Lessard. who was visibly upset by the suggestion ofhny wrong doing. said that his son-in-law had sold the vacant lot in July to Robert Hitz, owner of Inland Homes. shortly after he purchased it from Spanos in June. "1 am not surprised at this; look where it is coming from;' he said. noting that Ross works in the same law firm as Eric Bressler, whose client, Charles Zahra, and Lessard have been involved in numerous bit- ' ter legal disputes for several years. "Now they are trying to get at my family, but they won't say who fil- ed a complaint:' Lessard said. "I want to know who a!l the players ard? . L~ssard said thc subdivision was "exempted in thc town's building zen0 ordinance in 1966;' and the lots ar~ listed as separate on thc Suffolk County Tax map. That may be, Ross replied, but Spanos sold the vacaqt lot to the lots were not exempt from the Richard Garda only. Ross ~flso said ~ town's new zoning ordinance that in Nowmber, 1988, Spanos ob- anacted in. 1989, "and we believe taincd a vacant land certificate they are merged;' he Said. from' the town's building depart. . --LYdia Tortom meI, t ~ b~ ~/iCtOf Lessard. &22 The Suffolk Times * October 26, 1989 . _... -l/4.ACre:Building Lot Raises Questions By Bill Fmllon aeightiorhond zoning. ~ zone is R- In]and [-~mes could not be reached for MATTITUCK--There is a house 40' or one acm; at T'500 s~ionte feet' ~e comment and Mr. Ga~cia's telephone ~inonninMnttltne~r mL~thnn I/4: Crarclalotisl~"~than l/4ofthsu)Mr, uumberJsnotli~*'~t. ~.,~inn~-~.h~-~z~a..u~,~,.~-Ti' ,C~ucmbonghtthe~ot~ettyonJm~e26..$eeldng a C[4gifi~.afion - is~l~in~ hlilt wien'--'~'"'~n~vn"'~d-'~,lil--'~'~'~ Mr. Lessard said he ~ it in July to Neighbors of the property have D~m.,,¢ntPermits, hoteeighlx~shave. -~isndHomes.ofld mck. CurtHor- ln-otesledtothetownatt~ney'sofff~e. askedthewwnnrmrn~-vtn~-l.rlfv,the toaoftheB-fldlngDeparlmontlasm~d Teehnlcally. they~askinginraclari-= ----'~ .... ~' .... lln thnt Fu~tnlnce~l~i~tw~nx~medhrieFIvlw ..te~_ ~ Se~_ 13 and the_building: ~ constracaon tobegin. T'ney amnot an- in-law between the time the ~st and ' ' ': '~ ' .2-- - .- ~. ~ ' · : ". .Caracciolo Keep :$'.. A~,~ng to l~nny Ros~ lawyer for - ... · e aeighl~, the lot in question is nd- Continued from page A3 eelve~'~ng ;;i-nd dovelo~er l~ck '"?'"'"""~' ~..n"~: T~'~.~'' .an,ury onLxmg Tdnnd ?t fmlharnllegm tma.veral limesin Iran~o~ptS oftnped .~.. ~.~ . v ..o~.a n~..a.+.~'--~ ,v~ ,,.. . the Lucchese Crime Family, net- cgn cmmons included m the, Sept. 7 Lessatd, a town building '_ .-~ct~. ' dotnlnnt~d the affairs of Local 66,* ac- ~ ancused ~f any iHegnl activity, also The two lots were serrate until ceedingtoale~dnt~Se~7.1989._ conuibm~l $1.000 to Mr. ~lo. , 1972, when a single ce~lificale of occu- psucy was issued ~o' the then-owner, Leonard Spano. In 1973, the Town Board exempted 52 subdivisions'f~om' thc law that conld have let Mr.$pano get m~und the law and rrmke two l~s, but Mattituck Heights -~- tbe sit~ of the disputed lot -- was not included. Mr. Lessaxd said Tuesday that Mnttituck Heights is an exempted subdivision. When a reporter told him the Town Code epeeifies She examt~ snlxtivi- sions in Southold Town and M..it~-k X-lei~ is not among them, Mr Le-~nrd Mr. ~ _."~'~!_ issued a vacant ce~icate of occepancy (O0) f~ the g~.~ty bst November, when it was still owned by Mr. Spano. A vacant CO means a lot is big enough to I~ld on. even though thc -tot in question is too small for the gram the CHmh~l Division o~ the U.S. ' ~A~ln'd why Local 66 com~'buted to Dep~,t.,ent of lastlee to Indge Mishler. . _Th.~ snme letter refers to a select ~club" of conc~ cotatnca~ c. sa~u~d in i~art by Peter Vario, which met Jo Mr.'Caracciolo's campaign, anion at- lmmey Jeffrey Dubin ~1. "It would be hard to say, beeanse flw. ir PAC (polidc~al~ ac~on committee) has contributed money to many candidates -- as do Weather Watched T 0.54 0.5~ 1.85 GOO 0.00 S~n, fair to warm to a.m. showers Rain on throogh to clear & colder Rain & wind on ~rough 'Rain, heaw at times to clear~g -qun, bregzy, fair to coo{~' (r..oud~,~Gre4,.pod Utmtle~) (ReedinSls t. ken In a.m. fro' I.'evkms ~.4.hour pe.~,d) I Mr. Ross, tbe ~wo paxceis became between 197'2 n~d 1989. when it was occupied by Mr. Spano m~der a single CO. Thc previous ownews, identified only ns thc Bilmers, brecht the unde- ."~Mr. Rons points to ~tee eletnmts of the Town Code ,~hnt nppoar to bern"ess is illcsnL One of them says ~ngle and -anbd~vida a let within an ~n~exemptod snMivision. -: ' 'Town' attorney ]ames Schondabare said Monday that he has ~¢~n Anoth~"Case Pending MeanW~de, a~e s~l~ns issued a CO to Charles 7.nhra for'~is Pt~e ~ [~l*lfitack, Swlmm{qg pOOl ~astFriday after the iowa suomey wflh- drew the charScs that the pool was ille- ~udge Frederick Tedasc~ a~greed wilh iowa n.nmey James Schond~ wbea Mr. Schondebam**t4 the poc~ wannn~ed ~a CO. One honr l~m=, ~ho Building De- partment was on the a:eae and iss~ a CO. it is too late to swlm, bet it is a other case ia sta~ Supreme Court ngainst the Building Depamnent con- fee Pot Restamaut on ~e Street i~ WICKHAI'4, WICKHAH & BRI='SSLER, P.C. October 17, 1989 Town of Southold Town Attorney's Office Main Road Southold, NY 11971 Attention: James A. Schondebare, Esq. Re: Construction on Bayer Road, Mattituck Suffolk County Tax Map #1000/139/3/13 Suffolk County Tax MaD #1000/139/3/14 Dear Mr. Schondebare: We have been retained by certain individuals residing on Bayer Road in Mattituck with respect to the current construction on property designated on the Suffolk County Tax Map as 1000/139/3/14 ("vacant property") which encompasses an area of 7,500 square feet. Specifically, a question has been raised as to whether the vacant property is a valid building lot due to its contiguity to the -property to the west designated as 1000/139/3/13 on the Tax Map and upon which there presently exists a house ("residential property"). We are contacting you prior to making an application to the ZBA for reversal of %he Vacant Land Certificate of Occupancy No. Z-17543 dated November 28, 1908 ("C.O.") and the Building Permit No. 18355Z dated August 8, 1989, ("Building Permit") in an attempt to avoid needless litigation. It is our position that the vacant property merged with the residential property, thus rendering the vacant property unbuildable at the present time. I have enclosed to aid in your review the following: 1) Certificate of Occupancy No. Z4575, dated 3/2/72 covering both the vacant and residential property; 2) Application for Building Permit No. 18355Z dated 8/8/89 3) Correspondence from SCTIC Inc. dated 9/13/89; 4) Vacant Land C.O. No. 5)~ Building Permit No. Z-17543 dated 11/28/88; 18355Z dated 8/8/89; 6) Town of Southold Property Record Card re 1000/139/3/14 and 1000/139/3/13; 7) Survey of properties dated 3/30/72; Turning first to the facts, it appears that both the referenced properties were owned by Leonard Spano and his wife from 1972 to 1989. It appears that the residential property was deeded by Andrew to Bittner in 1945 (L. 2485 p. 49) and the vacant property was deeded by A~burst to Bittner by deed dated 11-19-65 (L. 5867 p. 188). Both properties were deeded to the Spanos by one deed dated 4-11-72 (L. 7140 p. 32). The vacant property (1000/139/3/14) upon which the C.O. and Building Permit were issued is shown as lot 36 on the "Amended Map of Mattituck Heights, Property of Gustav Bayer, at Mattituck, Suffolk County, New York" filed in the Suffolk County Clerk's Office July 24, 1935 as Map No. 1184. The residential property to the West (1000/139/3/13) is shown as lot 35 on the Mattituck Heights Map. Both properties were held by Leonard F. Spano and his wife under the deed dated April 11, 1972. The residential property was transferred to Richard Garcia and Carmine Lessard Garcia by deed dated June 26, 1989 and recorded on July 7, 1989 at Liber 10891, page 166. The vacant property was conveyed by the Spanos by deed to Richard Garcia dated June 26, 1989 and recorded on July 7, 1989 at Liber 10891, page 170. Turning next to the Southold Town Code sections, I would first note that both properties are presently in an R- 40 (one acre) zoning district. As noted, the property upon which the building permit was granted is approximately 7,500 square feet. Consequently, the property upon which the building permit was granted does not have sufficient area to satisfy the requirements of a buildable lot under Article IIIA section 100-30A.3 of the Town Code. Neither does the property satisfy the requirements of Article XXIV section 100-244 of the Code which pertains to nonconforming lots. To be a buildable lot section 100-244 requires in part that the lot was held separately and did not adjoin another lot or land in the same ownership at the effective date of Article XXIV. The effective date of Article XXIV appears to have been January 10, 1989 by L.L. No. 1-1989. You are also 2 referred to Southold Town Code Sections 100-32, 100-12, 100- 281(A)(7) and section 265(a) of New York State's Town Mw for additional statuto~ law relevant to this issue. Based upon the facts set forth previously and the applicable law referred to above, it appears that the vacant prope~¥ upon which the building pe~£t and C.O. was issued is not a buildable lot. Would you please review the foregoing at your earliest convenience and advise. tatt-75 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWICKI JAMES DINIZIO, JR. Southold Town Board of Appeals MAIN ROAD- BTATE ROAD 2,5 SOUTHOLD, L.I., N.Y. llCJ?l TELEPHONE (516) 765-1809 NOTICE OF HEARINGS NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the following hearings will be held by the SOUTHOLD TOWN BOARD OF APPEALS at a Regular Meeting, a the Southold Town Hall, Main Road, Southold, NY 11971, on THURSDAY, MARCH 29, 1990, at the following times: 7:30 p.m. Appl. No. 3770 - PORT OF EGYPT. Variance to the Zoning Ordinance, Article XII, Section 100-121C - 122, Section 100-239d, as disapproved for permission to construct Boat Storage Building with insufficient setbacks and excessive lot coverage in this Marine II (M-II) Zoning District. Property Location: Main Road, Southold, County Tax Map No. 1000, Section 056, Block 04, 06, Lot 10.1, 11, 12.2, 3.2, 3.3, 4, 6.1. Page 2 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of March 29, 1990 i7:35 p.m. Appl. No. 3908 - ROBERT OCHSENRETER AND EDWARD NCESKI. Variance for reversal of building permit to construct( one family dwelling. Property Location: 565 Bayer Road, ttituck, County Tax Map No. 1000, Section 139, Block 3, Lot 14- The Board of Appeals will at said time and place hear any and all persons or representatives desiring to be heard in each of the above matters. Written comments may also be submitted prior to the conclusion of the subject hearing. Each hearing will not start before time allotted. Additional time for your presentation will be available, if needed. For more information, Please call 765-1809. Dated March 26, 1990 BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN By Doreen Ferwerda ~AILING LIST FOR MARCH 29, 1990 Suffolk Times Traveler-Watchman Clerks Bulletin Board Z.B.A. Bulletin Board Mr. Merlon Wiggin Peconic Associates P.O. Box 672 Greenport, NY 11944 Anthony Tohill, Esq. 12 First Street Riverhead, NY 11901 Mr. Robert Ochsenreiter 600 Bayer Road Mattituck, NY 11952 Mr. Edward Lenceski 500 Bayer Road Mattituck, NY 11952 JUDITH T. TERRY TOWN 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 FAX (516) 765-1823 TELEPHONE (516) 765-1801 CORRECTED TRANSMITTAL OF ZONING APPEAL TO: FROM: RE: DATE: SOUTHOLD TOWN ZONING BOARD OF APPEALS JUDITH T. TERRY, SOUTHOLD TOWN CLERK ZONING APPEAL NO. 3908 INLAND HOMES, INC. FEBRUARY 1, 1990 The following is a corrected listing of the attachments that were transmitted to Southold Town Zoning Board of Appeals Office on January 19, 1990 together with Zoning Appeal No. 3908 application of Inland Homes, Inc.: Notification to Adjacent Property Owners; Short Environmental Assessment Form; Zoning Board of Appeals Questionnaire Form; Survey of Property; Deeds; Property Record Cards: Schedule A; Certificate of Occupancy dated 11/28/88; Application for Building Permit dated 8/2/89: Building Permit dated 8/8/89; together with any other attachments relative to this application. A Notice of Disapproval from the Buidling Inspector was not received with this application, Southold Town Clerk JUDITH T. TERRY TOWN CLERK REGISTRAR OF VITAL STATISTICS OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 1 179 Southold, New York ! 1971 FAX (516) 765-1823 TELEPHONE (516) 765-1801 CORRECTED TRANSMITTAL OF ZONING APPEAL TO: FROM: RE: DATED: SOUTHOLD TOWN ZONING BOARD OF APPEALS JUDITH T. TERRY SOUTHOLD TOWN CLERK~ / ZONING APPEAL NO. 3908, INLAND HOMES, INC. FEBRUARY 1, 1990 The following is a corrected listing of the attachments that were transmitted to Southold Town Zoning Board of Appeals Office on January 19, 1990, together with Zoning Appeal No. 3908, application of Inland Homes, Inc. on behalf of Robert J. Ochsenreiter and Edward Lenceski: Notification to Adjacent Property Owners; Short Environmental Assessment Form; Letter Relative to NYS Tidal Wetlands Land Use; Survey of Property; Deeds; Property Record Cards; Schedule A; Certificate of Occupancy dated 3/2/72; Vacant Land Certificate of Occupancy dated 11/28/88; Application for Building Permit dated 8/2/89; Building Permit dated 8/8/89; together with any other attachments relative to this application. A Notice of Disapproval from the Building Inspector was not received with this application. APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Joseph H. Sawicki James Dinizio, Jr. 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 TO: FROM: DATE: RE: Victor Lessard, Principal Building Inspector Zoning Board of Appeals April 13, 1990 Z.B.A. Hearing of April 19, 1990 In regarding Inland Homes Appl. No. 3908, it would be greatly appreciated if you could attend our next Regular Meeting of the Zoning Board of Appeals on Thursday, April 19, 1990. Attached is a copy of the Notice of Hearings for your information. We have found it very helpful having you attend our previous meetings. NOTICE OF HEARING~ NOTICE 1S HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the following hearings will be held by the SOUTHOLD TOWN BOARD OF APPEALS at a Regular Meeting, at the Southold Town Hall, Main Road, Southold, N.Y. 11971, on THURSDAY, APRIL 19, 1990, at the following times: 7:30 p.m. Appl. No. 3926-- MURRAY JACOBS. Varianca to the Zoning Ordinance, Arti- cle llI, Section 100-33, as dis- approved for permission to con- struct an accessory shed in side yard, accessory buildings may be located in the required rear yard. Property Location: 1180 Sage Boulevard, Greenport, County Tax Map No. 1000, Section 53, Block 5, Lot 9. 7:35 p.m. AppL No. 3927-- MARK AND ELLIE GOR- DON. Variance to the Zoning Ordinance, Article Ill, Section 100-33, as disapproved, for per- mission to construct an acces- sory building to tennis court located in front yard, accessories permitted in the rear yard area only. Property Location: Private Road ~, Fords Road, Southold, County Tax Map No. 1000, Sec- tion 087, Block 01, Lot 18.4. 7:40 p.m. Appl. No. 3928-- SAMUEL AND RACHEL SALZMAN. Variance to the Zoning Ordinance, Article Ill A, Section 100-30 A.3, as disap- proved, for permission to con- struct addition to an existing dwelling, proposed construction will have insufficient front yard setbacks. Property Location: 65 Old Salt Road and 400 Rochelle Place, Mattituck, County Tax Map No. 1000, Section 144, Block 5, Lot 22. 7:45 p.m. Appl. No. 3920-- A. LIOS. Variance to the Zon- ing Ordinance, Article XXIV, Section 100-244, as disapproved, for permission to construct a deck addition to existing pool, proposed?onstruction exceeds permitted lot coverage, and will have insufficient side yard set- backs. Property Location: 310 Linda Road, Mattituck, Coun- ty Tax Map No. 1000, Section 106, Block 1, Lot 14. 7:50 p.m. Appl. No. 3921-- EILEEN VILLANI. Variance to the Zoning Ordinance, Article XXlII, Section 100~239 B, for permission to construct deck ad- dition to existing one family dwelling, proposed construction will be within 75 ft. of water or wetlands. Property Location: Private Road 925 Wood Lane, Peconie, County Tax Map No. 1000, Section 086, Block 06, LOt 10. 7:55 p.m. Appl. No. 3919- THOMAS COLLINS. Variance to the Zoning Ordinance, Arti- cle XXIII, Section 100-239 4. B, for permission to construct a deck addition to a one family dwelling, proposed construction will be less than 75 ft. from the bulkhead. Propel~y Location: 305 Dawn Drive, East Marion, County Tax Map No. 1000, Sec- tion 35, Block 5, Lot 20. 8:00 p.m. Appl. No. 3930-- JOHN C. PERRONE. Special Exception to the Z~ning Ordi- nance, Article X Section 100-10lB, for permission to oc- cupy and use as a bi~ard par- lor for commercial rereation. Property Location: M~ir~ Road, State Road 25, Mattituck, County ~ Map No. 1000, Sec-' tion 122, Block 6, l.~t 31. 8:05 p.m. Appl. N). 3914~ EVA HALLA. Varia~e to the Zoning Ordinance, ArtiCle III A, Section 100-30 A.3, Article XXIV, Section 100-244, Bulk and Parking Area, Article XXIII, Section 100-239A, build- ing setbacks from water or ~et- lands, for permission to con'- struct a one family dwelling. Property Location: 55 Glen Court, Cutchogue, County Tax Map No. 1000, Section 083, Block 01, Lot 0t. 8:10 p.m. Appl. No. 3922-- ROBERT AND THERESA TURNER. Variance to the Zon- ing Ordinance, Article Ill, Sec- tion 100-30 A.4, Bulk and Park. lng area, for permission to con- struct an' attached swimming pool to house. Property Loca- tion: 1525 Albo Drive, Laurel, County Tax Map No. 1000, Sec- tion 126, Block 03, Lot 17. 8:15 p.m. Appl. No. 3925-- ELSIE PARKIN. Variance to the Zoning Ordinance, Article II/A, Section 100-30 A.3, Bulk and Parking Regulations in this Division of Land. Property Location: 7575 Skunk Lane, Cutchogue, County 'Pax Map No. 1000, Section 104, Block 04, 27. /~8:20 p.m. Appl. No. 3908~ / ROBERT OCHENREITERI ~ AND EDWARD LENCESKI.I Variance for reversal of a build-I ing permit to construct a onel \ family dwelling. Property Loca- I ~tion: 565 Bayer Road, Matti-I \tuck, CoUnty Tax Map No. [ ~,000, Section 139, Block.3, LOtJ The Board of Appeals will at said time and place hear any and all persons or representatives de- siring to be heard in each of the above matters. Written com- ments may also be submitted prior to the conclusion of the subject hearing. ~ach hearing will not start before time allot- ted. Additional time for your presentation will be available, if needed. For more informaiion, please call 765-1809. Dated: April 9, 1990 ' BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN By Doreen Ferwerda IX, 4/12/90 (80) NOTICE OI,'~H,;A R 1 NGS NOTICE IS I IEREBY GIVEN. put- Law and the Code of the Town of Southold, the following hearings will be held by the SOUTIIOLD TOWN BOARD OF Al'PEALS at a Town hall, Main Road, Southold, NY 1197I, cn TIIURSDAY, APl{IL 19, 1990, at thc following times: 7:30 p.m. Appl. No., 3926 -- M UFd~AY JACOBS. Variance to the Zoning Ordinance, Article [II, Sec- tion 100-33, as disapproved for sory shed in side yard, accessop] buildings may be located Jn the quircd rear yard. Property Location: 1180 Sage Boulevard, Grccnport, County Tax Map No. 1000, Section 53, IBock 5, Lot 9. 7:35 p.m. AppL No. 3927 -- MARK AND ELLiE GOI~)ON. Vail- cie iii. Section 100-33, as disap- ffrlvcd,,for permission ,0 constm~, an acqcssory building to tcnnis court logated in front yard, acces- sories pennittod in the rear yard area only. Property Location: Private Road #7, Fords Road, Southold, County Tax Map No. 1000, Section 087, Block Ol, Lot 7:40 p.m. AppI. No. 3928 -- SAMUEL AND RACIIEL SALZ- MAN. Variance to the Zoning Ordi- nance, Article III A, Section 100- 30 A.3, as disapproved, for permission to construct addition to an existing dwelling, proposed constraction will have insufficient front yard setbacks. Property Location: 65 Old Salt Road and 400 Rochelle Place, Mattituck. County Tax Map No. 1000, Section 144, Block 5, Lot 22. 7:45 p.m. Appl. No. 3920 -- A. LIOS. Variance to the Zoning Ordi- nance, Article XXIV, Section 100- 244, as disapproved, for permis- sion to'construct a deck addition to cxistiag pool, proposed construc- tion exceeds permitted lot cover- age, and will have insufficient side yard setbacks. Property Location: 310 Linda Road, Mattituck, County Tax map No. 1000, Section 106, lllock 1, Lot 14. 7:50 p.m. AppI. No. 3921 -- EILEEN VILLANL Variance to the Zoning Ordinance, Article XXIII, Section 100-239 B, for permission Location: Private Road 925 Wood Lane, Peconic. County Tax Map No. 1000, Section 086, Block 06, LOt 10. 7:55 p.m. Appl. No. 3919 -- TIIOMAS COLLINS. Variance to thc Zoning Ordinance, Article XXIII, Section 100-239 4.B, for addition Io a one family dwelling, proposed construction will be less Map No. 10130, Section 35, Block 5, Lot 20. JQIIN C. PERRONE. Special :Eaccp- billiard parlor for commercial recre- ation. Property Location: Main 122, Block 6, Lot 31. EVA IIALLA. Variance to the 7xm- tion 100-30 A.3, Article XX1V, Section ID0-244, Bulk and Parking Area, Article XXIll, Section 100- 239.4, building setbacks from wa- constrdct a one family dwelling. Property Location: 55 Glen Court, Cutch~gue) County Tax Map No. 1000, Section 083, Block 01, Lot 01. 8:10 p.m. Appl. No. 3922 -- Location: 1525 Albo Drive, Laurel, County Tax Map No. 1000, Section 126, Block 03, LOt 17. g;15 p.m. Apph No. 3925 -- ELSIE PARKIN. Variancc to the Zoning Ordinance, Article III A, Section 100-30 A.3, Bulk and Park- ing Regulations in this Division of Land. Property Location 7575 Skunk Lane, Cutchogue, County Tax Map No. I000, Section 104, Block 04, Lot ROBERT OCItSENREITER AND EDWARD LENCESKI. Variance for reversal of a building pemrit to constract a one family dwelling. Property Location $65 Bayer Roadg/ / The Board of Appeals will at said time and place hear any and all per- conclusion of the subject hearing. please call 765-1809. Dated April 9, 1990 BYORDI]I OF TI IE SOUI110LD TOWN BOARD OF APPEALS GERARD p. GOEI IRINGER C11AIRMAN By Dorcen Ferwerda 6644-1TA12 COUNTY OF SUFFOLK SSt STATE OF NEW YORK Patricia Wood, being duly sworn, says that she is the Editor, of THE LONG ISLAND TRAVELER-WATCHMAN, a public newspaper printed at Southold, in Suffolk County; and that the notice of which the annexed is a printed copy, has been published in said Long Island Traveler-Watchman once each week for .................... ./ ...... weeks successively, commencing on the .......... /..,~. ......... Sworn to before me this ........... ./.~.. ~ .... day of ........ . .~..'../ ......... 19, ~.r.)... Notary Public Bf, RrtARA k SCHNEIDER NOTAR/~'[JB[IC, State of New No. 4806846 Qualified in Suffolk Count, Corami~ion Expires NOTICE OF HEARINGS NOTICE IS 11EREBY GIVF. N. per- suant to Section 267 of the Town Law and the Coda of thc Town of Southold, the following hearings will be held by the SOUTHOLD TOWN BOARD OF APPEALS at a Regular Meeting, at thc Southold ]'own hall, Main Road, Southold, NY 11971, on THURSDAY, APRIL 19, 1990, at l~¢ following times: 7:30 p.m. AppL No., 3926 -- MURRAy JACOBS. Vadan~ to the Zoning Ordinance, Article HI, Sec- lion 100-33, as disapproved for sory shed in side yard, accessory buildings may bt: located itl the quircd rear yard. Property Location: 1180 Sage Boulevard, Greenport, County Tax Map No. 1000, Section 53, Block 5, Lot 9. 7:35 p.m. Appl. No. 3927 -- MARK AND FI J II~ GOI{~ON. Vad- ancc to thc Zoning Ordinance, Arti- cle U[, Section 100-33, as disap- an' acc,~ssory building to tennis court lo~ated in front yard, acer. s. soric$ permittcd in thc rear yard arcs only. Property Location: Private Road g7. Fords Road, Southold. County Tax Map No. I000, Section 087, Block 01. Lot 7:40 p.m. Appl. No. 3928 SAMUEL AND RACHEL SALZ- MAN. Variance to thc ~ning Ordi- nancc, Article HI A, Section I00- 30 A.3. as disapprovcd, for permission to construct addition to an cxisting dwelling, propoacd construction will have insufficient front yard $ctbacks. Property Location: 65 Old Salt Road and 400 Rochcllc Piece. Mattituck. County Tax Map No. 1000, Sccrion 144, Block 5, Lot 22. 7:45 p.m. Appl. No. 3920 -- A. LIOS. Variance to thc Zoning Ordi- nance. Articlc XXIV. Section 100- 244. as disapprovcd, for permis- sion to'construct a deck addition to cxisting pool. proposed construc- tion exceeds permitted lot cover. age, and wiU have insufficient side yard scthacks. Property Location: 310 Linde Road, Mattitock, County Tax map No. I000, Section 106, Block 1, Lot 14. 7:50 p.m. AppL No. 3921 EILEEN VILLANL Variancc to thc Zoning Ordinance, Article XXIII, Section 100-239 B, for permission to construct deck addition to exist- ing one family dwelling, proposed construction will b~ within 75 fL of water or wetlands. Property Location: Private Road 925 Wood Lane, Pcconic. County Tax Map No. 10GO, Section 086. Block 06. Lot 7:55 p.m. Appl. No. 3919 TIIOMAS COLLINS. Variance to thc Zoning Ordinance, Article XXIII, Sccrion 100-239 4. B, for pcrmission to construct a deck addition to a one family dwelling. proposed construction will I~ Ices than 75 ft. from the bulkhead. Propcrty Location: 305 Dawn Drive. East Marion, County Tax Map No. 1000, Section 35, Block 5, Lo~ 20. 8:00 p.m. AppL No. 3930 -- JUl IN C. PERRONF~ Special Excep- tion to the Zoning Ordinance, Ar- ticle X, Section 100~IOIB, for billiard parlor for commercial recre- ation. Property Location: Main Road. State Road 25, Mattituck, County Tax Map No. 1000. Section 122. Block 6, LOt 31. , 8:05 p.m. Appl. No. 3914 EVA IiALLA. Variance: to thc Zon- ing Ordlnancc. Article Ill A. Sec- lion 100-30 A.3, Article XXIV. Section 100-244. Bulk and Parking Arcs. Article XXIII, Section 100. 239.4, building setbacks from wa- ter eib'wetlands, for permission to renal[act a onc family dwelling. Property Location; 55 Glen Coun, Cutch6guc, County Tax Map No. 1000, Section 083, Block 01, Lot 01. 8:10 p.m. AppL No. 3922 -- ROBERT AND TI 1ERBSA TURNER. Variance to thc Zoning Ordinance, Article III. Section 100-30 A.4, Bulk and Parking area. for pennis- sion to construct an attached swimming pool to house. Property Location: 1525 Albo Drive. Laurel. County Tax Map No. 1000, Section 126, Blo~k 03, Lot 17. 8:15 p.m. Appl. No. 3925 -- ELSIE PARKIN. Varianc~ to thc Zoning Ordinance, Article HI A, Section 100-30 A.3, Bulk and Park- ing Rcgulations in this Division of Land. Property Location 7575 Skunk Lane, Cutchoguc, County Tax Map No. 1000, Section 104, Block 04, Lot 2_7~ i.0,--'""-"3~0 p.m. Appl. No. ~90g ROBERT OCHSENREITER AND EDWARD L 'IhNC 'I'IESKI. Vadance fcc rcvcrsal of a building permit to construct a onc family dwclling. Property Location 565 Bayer Road. Mattituck, County Tax Map Section 139, Block ~ 'Phc Board of Appeals will at said time and place hear any and aB per- sons or rcprcscntativc$ desiring to be heard in each of thc above mat- be submitted prior to the conclusion of the subject hearing. · Each heating will not start time allotted. Additional time for your preacntatlon will be available, if needed. For more information, please call 765-1809. Dated April 9, 1990 BY ORDI~ OF Tile SOUTI IOLD TOWN BOARD OF APPEALS OEP, AP, I) p. GOEI {RINGER By Doreen Fcrwerda 6644-1TA12 NOT!C.E OF HEARINGS NOTICE IS HEREBY GIVEN, pursuant to Section 267 df fl{e .Town~.~,~aw'a~d the Code of th~ T~v~ of So~thold, the foll~$ ~1~r~lg$ will be held bY .th~ SOUTHOLD TOWN BOARD OF APPEALS at a R~gular Meeting, at the Southold Town Hall, Main Road, Southold, NY, 11971. on THURSDAY, MARCH 29, 1990, at the following times: 7:30 p.m. Appl. No. 3770- PORT OF EGYPT. Variance to the Zoning Ordinance, Article XII, Section 100-121C-122, Sec- tion 100-239d, was disapproved for pemlission to construct Boat Storage' BuilSing with insuffi- cient seti~ack~ arleL~xcessive lot coverage:ir, thi~ '~arine Il (M- II) Zomltg .District. Property Locatio'n? "~Main Road, Southol~C0unty lhx Map No 1000, ~:tion 0~'6, Block 04, ~0~,,, Lot 10~17il, 1~.~, 3.2, 3.3, 4, 6.1. yeON. 7:55' p~;m. Appl. No. 3908--% BERT. OCHSENRETER D EDWARD LENUESKI. ance for reversal of building rmit to construct a one fami- dwelli~g~!~l~l~[ Location: 565 Bay~ ~R~,~i. Mattituck, County ~.M~ !000; ~c- tion 1:39, Bloc['3; Lot 1~.' ~ ~Th¢ Board 0i~ Apl~tls ~'ill at said time and place hem' any and all persons or .t~presentatives desirin~ to b* hca~dAn ~ of the above matters. Written com- ments may also be submitted prior to the conclusion of the subject hearing,Each hearing will not start beforetime allot- ted. Additional time for your presentation will be available, if needed. For more informatiofi; Please call 765-1809 · Dated: March 26, 1990 BY ORDER OF THE SOUTHOLD TOWN BOARD · OF APPEALS GERARD P. GOEHRINGER · CHAIRMAN. By: Dorecn Ferwerda IX-3/22/90(8) COUNTY OF SUFFOLK STATE OF NEW YORK Patricia Wood, being duly sworn, says that she is the Editor, of THE LONG ISLAND TRAVELER-WATCHMAN, a public newspaper printed at Southold, in Suffolk County; and that the notice of which the annexed is a printed copy, has been published in said Long Island Traveler-Watchman once each week for ....................... 4'... weeks successively, commencing on the ........... ~'.? ....... day..o.,ff77-:-.., c'..fi-. '.:! .~ ...... 19 ./e.. Sworn to before me this ...... ,Z)~. ........... day of ~w ~d ~e To~ of ~u~oJd, ~e following hear~ s w~ ~ held by ~e SOUTHo~ ~ BO~ OF APP~ at a - ~ M~g, at ~e Southold T~ H~. M~n R~d, ~uthold, NY 11971. on THURSdAy. ~:.30 p.m. AppL ~o. 3770 ~ RT OF EGY~ Va~ ~ ~e ~ 7:35 p.m. AppL No. 3908 ~ arty ~cat/on: 565 ~ayer R~ staff ~o~°~. "~a~g W~ ~va~ble, ff n~ded. For mo~ STATE OF NEW YORK) )SS: COUNTY OF SUFFOLK) Patricia Heaney of Mattituck, in said County, being duly sworn, says that he/she is Principal Clerk of THE SUFFOLK TIMES, a Weekly Newspaper, published at Mattituck, in the Town of Southold, County of Suffolk and State of New York, end that the Notice of, which the annexed Is a printed copy, has been regularly published in said Newspaper once each week for 1 weeks successively, commencing on the 22nd day of M~ z- cl-~ 1990 -~,~ f / / Principal Clark Swom to b. efpre m9 this '/ · /" '~RY I~ ~", dayo, /El: ,, lg~/~- ~ O~;l~y Pu~ ' SCHEDULE A TO APPEAL FROM DECISION OF BUILDING INSPECTOR OF ROBERT J. OCHSENREITER & EDWARD LENCESKI 1. This is an application to reverse two determinations of the Building Inspector as follows: (1) issuance of Building Permit dated August 8, 1989, granted to Inland Homes, Inc., No. 18355Z (Exhibit E) and; (2) issuance of Vacant Land Certificate of Occupancy dated November 28, 1988 issued to Leonard F. and Ave Maria Spano, No. Z17543 (Exhibit D). Both determinations relate to a parcel of real property located at 565 Bayer Road, Mattituck, New York, Suffolk County Tax Map No. 1000/139/3/14. The basis for this application for reversal is that the property is not a legal building lot. 2. The property in issue (1000/139/3/14) was owned by Leonard Spano and Ave Maria Spano, his wife from 1972 to 1989 (Exhibit C). The same parties also owned the property immediately adjacent to the west under the same deed during the same period (Suffolk County Tax Map No. 1000/139/3/13). Each of the properties consist of an area of approximately 7,500 square feet (Exhibit G). As a result, the two properties merged and became one parcel. There is a house existing on the property to the west of the property in issue. 3. The property in issue (1000/139/3/14) was conveyed by the Spanos to Richard Garcia by deed dated June 26, 1989 and recorded on July 7, 1989 (Exhibit C). The adjoining property to the west (1000/139/3/13) was also conveyed by deed dated June 26, 1989 and recorded July 7, 1989 by the Spanos to Richard Garcia and Corrine Lessard Garcia. Upon information and belief Corrine Lessard Garcia is the daughter of Building Department Inspector Victor Lessard. 4. The property district (Exhibit H). Thus, in issue is located in an R-40 zoning the property contains insufficient area to satisfy the requirements for a buildable lot under Article IIIA Section 100-30A(3) (Exhibit I) of the Town Code. Neither does the property satisfy the requirements of Article XXIV Section 100-244 (Exhibit J) of the Town Code with respect to non-conforming lots since the property has not been held in single and separate ownership. The Building Permit was also issued in violation of Article XXIV Section 100-281(A) (7). I am advised the Building Department file failed to contain a single and separate search, as required. It is submitted, based on the title search of the property by SCTIC Incorporated dated September 13, 1989 (Exhibit C) that the property was not held in single and separate ownership. As a result of the foregoing, the property in issue is not a buildable lot and the determinations complained of must be reversed. In response to our attorneys' correspondence dated September 13, 1989, to the Southold Town Board of Appeals, they were informed that a variance had not been granted with respect to this property. 5. I am aggrieved by the determinations of the Building Inspector in that I reside on Bayer Road, Mattituck, New York and own the real property across the street from the property in issue. Construction of a residence on the property in issue will have an adverse effect on the value on my property and the quality of life in the neighborhood. 6. In support of this application the following is submitted and incorporated herewith: A. Certificate of Occupancy No. Z4575, dated 3/2/72 covering both the vacant (1000/139/3/14) and the residential property (1000/139/3/13); B. Application for Building Permit No. 18355Z dated August 8, 1989; C. Correspondence from SCTIC Inc., dated September 13, 1989 with deeds referred to therein; D. Vacant Land Certificate of Occupancy No. Z-17543 dated November 28, 1988; E. Building Permit No. 18355Z dated August 8, 1989; F. Town of Southold Property Record Cards for 1000/139/3/14 and 1000/139/3/13; G. Survey of Properties dated March 30, 1972; H. Copy of portion of the present Southold Town Zoning Map with property at issue circled; I. Southold Town Code Sections 100-30A.1 through 100- 30A-4; Density and Minimum Lot Size for Residential Districts; Section 100-244; Section 100-12; SEction 100-281(a) (7), and Section 100- 32. FORM NO. 4 TOWN OF SOUTHOLD BUll,DING DEPARTMENT Town Clerk's Office Southold, N. Y. Certificate Of Occupancy Date ........ .E.a.~eh...2 .......... , 19.7~. THIS CERTIFIES that the building located at .B~yer. Rn~d ............... Street Map No.M~.t.~.u.~t~. H~B~(~ck No ........... Lot No..3 require~.ents for one fa~..i]v., d'.re-, ...... q~r~ ......... ~' ~-~'~ code conforms substantially to the built prior to ~t~_~ .......... ap.r. il. 1957, 19 .... pursuant to which ~~tXi~ C/fl .Z~.575 dated ....... ~<~rch .2 ....... , 19.7.2., was issued, and conforms to all of the require- ments of the applicable provisions of the law. The occupancy for which this certificate is issued is ...Erivate. one. family. A~e.l.l. ing ..................................... The certificate is issued to .. M=. &. Mrs. Paul. ~ittr~er ....... 0¥ne.rs .............. (owner, lessee or tenant) of the aforesaid building. Suffolk County Department of Health Approval ....P~..e.:-.e.x.i.~;.i.n.g ................... House ~ 505 Inspected Feb 29 1972 /~ ~ '"'-""/ Building Inspector [ 3 SETS OF ANS -~- .... TOWNOFSOUTHOLD CHECK .- / ' BglLOINGDEPARTMENT SE??IC FORH ............. : TOWN HALL $OUTHOLD, N.Y. 11971 NOTIFY TEL.:7ES-1B02 CALL ................ ,~lpproved a/c ..................................... (Building Inspector) APPLICATION FOR BUILDING PERMIT Date . Aqgn~.t..2 ........ 19~9. INSTRUCTIONS a. This application must be completely filled in by typewriter or in ink and submitted to the Building hispector, with 3 ; of plans, accurate plot plan to scale· Fee according to schedule. ii. Plot plan sltowing location of lot and of buildings on premises, relationsliip to adjoining premises or public streets .~reas, and giving a detailed description of layout of property must be drawn on tile diagram which is part of this appli- c. Tile work covered by tiffs application may not be commenced before issuance of Building Permit. d. Upon approval of this application, the Building Inspector wliI issued a Building Permit to the applicant. Such permit ][ be kept on the premises available for inspection throughout file work. e· No building shall be occupied or used in whole or in part for any purpose whatever until a Certificate of Occupancy 11 have been granted by the Building Inspector. APPLICATION IS HEREBY MADE to the Building Department for the issuance of a Building Permit pursuant to the ilding Zone Ordinance of tile Town of Southold, Suffolk County, New York, ~nd other appiicabIe Laws, Ordinances or ~-ulations, for the constroction of buildings, additions or alterations, or for removal or demolition, as herein described. ~' applicant agrees to comply with ali applicable laws, ordinances, building code, housing code, and regulations, and to nit autliorized inspectors on premises and in building for necessary inspections. ...... ~INL~..I~ .I:IOlS]~ ,. ~ .................... (Signature of applicant, or name, if a corporation) · .~g~ .~7.,..~.it~ck, .N,. X,. 11.95~ ....... (Mailing address of applicant) de whether applicant is owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or builder. ............. g~.~r~L .qg~7:~.g !;9~ .......................................................... :,e of owner of premises ...]2~T:LA_N.D .l{O .I'L4-E,S t. ~I~10, .................................................. (as on tile tax roll or latest deed) lpplicant is a corporation, signature of duly autliorized officer. ......... R~ber~..E.. HXlt z.,..Pres ........... (Name and titl~ of corporate officer) Builder's License No .......................... Plumber's License No ..... 2/~I~ .............. Electrician's License No...3635.1~ .............. Location of land on which proposed work will be done...~. ,B.a~:~. ]~q0-0-a..~O~g~,~;klCk.,. fl,. ~ ......... ...... 5P5. BaZer. EcL...~a~.~ituek,. N,..Y ................................................... (Name) a. Ex~shng use and occupancy .......... k/~~.~. ........ . .................... b. Intended use and occupancy ...... l..FamiJ.2t. Dw. ellir~ ......................................... 3. Nature ofwork.C heck which applicable): New Building . .X ....... AddRion .......... AlIeration . · .-~: l/el)air Removal .......... Demolition .... · ..... Other Work ............ ~ ~ (Devriplion , (to be paid on filing this application) 5. If dwelling, number of dwelling units ............... Number of dwelling units on each floor ............. 1£ garage, nutnber of ca~s ..................................................................... 6. 1£ business, commercial or mixed occupancy, specify nature and extent of each type of use .................. 7. Dimensionsofexisfingstmctures, ifany: Front ............... Rear .............. Depth ............ I kight ............... Num bet of Stories ..................................................... Dimensions of same structure with alterations or additions: Front ................. Rear ............... Depth ...................... Height ...................... Number of Stories ................... $. D e so sole renewco s ruction: Front ..~ (- ....... Rear ...,,,.~-..q ....... Depth ...~.O ..... lleight ... ] .'~'. ...... z>~Number of Stories .... ~.. 9. 5izeof[ot:Fronl ..,.5~.'~ ............. P, ear.....,S.~............'DePtl~'....i.4.,~........."~,~u''''''''"" ----- --":'~'_''''"-'" Itl D~te of Purchase ............................. Name of Former Owner .......................... 1 I. Zone or use district in which prenfises are situated .................................................. 12. Does proposed cons[ruction violate any Zollhlg law, ordinance oz regulation: ............................. 13. Will lot be regraded ............................ Will excess fill be removed from premises: Yes Ih Name of Owner of premises .................... Address ................... Phone No ............. Name of Architect ........................... Address ................... Phone No ............. Name of Contractor .......................... Address ................... Phone No ............. 15. Is this property located within 300 feet of a tidal wetland? *Yes ..... · No ..... mil yes, Southold Town Trustees PermitpLoma~F beDiAG~re utred, Locate clearly and distinctly all buildh~gs, whetller :xisting or proposed, and. indicate all set-back dimensions fr property lines. Give street and block number or description acco~dfl~g to deed, and sfiow street names and indicate whet S FATE OF NE~V YORK, ~ OUNTY OF. NUPPO.LK ....... $.S ............ Rabe~t;. ~;,. ~lil'~:~ .............. ; .... being duly sworn, deposes and says that he is tile applicr (Na~ne of individual siglling contract) lie is the ......... Cor~r~¢J;D~2.. ~ ............................................................... (Contractor, agent, corporate officer, etc.) -f said owner or owners, and is duly authorized to perform or have perfonned the said work and to make and file application; that all statements contained fl~ this application are true to the best of his knowledge and belief; and that '.~ork wdl be performed in the manner set forth in the application filed therewith. Sworn to bcfore me this ' ) ............... 4 ........ day of.....~..... .......... 19~.~ '" ' i?otary Public ...... 7.~./~K.<. ~(~..~..L../~ ..... County : ~ 1/ ~'~' ' (Signal dr.~ of applica: SCTIC Incorporated "FOR SUFFOLK COUNTY TITLE INSURANCE" BOX 1269 · RIVERHEAD, NEW YORK 11901 · (516) 727-4270 /o-dr~ /~. d~ db- ~ O/~d~2) SCTIC Incorporated "FOR SUFFOLK COUNTY TITLE INSURA3/CE" BOX 1269 · RIVERHEAD, NEW YORK 11901 · f5169 727-4270 ~lltBSJflUg~--bdu ).~ &yd June .-~-*..-blld~md eighty-nine LLPGNARD K, SPANO dod AVK H..C;~ANO, his vLfe, both reatd:ng &t SOS Bayer Rood, R&ttL~'.uck, #er York llgS2 RICHARD GAR~IA AND CORINNE LESSARD GABCIA, bib v~fe, 19' * liaflY d b 8Kmld ~rt, dom he~fJ' P IUd rehMe unt° the Pfly °f th~ Nc~jod pert' ~] bdn m' SEE 5C}I£D~!LI~ "Aw AT?ACHED HERETO m **Ae All thit certain plot, pio(:e or parcel of l·nd, with the buildings the~e on erected, nitustu, lying end being at Wattltuck, town of Scuthold, Suffolk County, Hew Ynrk, Jason e~d deBl~Udted as lot e35 on 'a~endod map of Itattituck Heights, property of Gustav Bayer st Hettituck, Suffolk County, {{e~ York' smd filed Iff the Suffolk County Clerks office on July 24, 1935 ss map #1104, which BaLd lot t· more particularly ~ounded and described ns foAio~st lots #35 end J 36 on the above mop which ·aid paint of beginning LB loc·ted on the northerly Bide of BOT~F Rood distant 150.00 fmat ~at, of the intersection of the · out~nrly Ride of Grant Blvd. with the ~sterly ·ida of RUWHII~ THENCE mouth 31 deqroe· 04 m~nuteo 30 ·ocondo mt, of the northwesterly Ride of Beper Road, · all·tosco of 50.00 fnnt to paint marking the division line of the herein described lot end lot f34. THBWCS Worth 58 dog,suB 55 sinutab 30 Bocond8 ue~t lion· · aid divl·ion line · dlBtnnco of 150.00 feat to & paints THEWCB north {l degreeB 04 minutee 30 eOCOedJq OeBt a dl·tnnc® of $0.00 feet to a point marking tt.~* dtvininn 1inn of lot· 035 and {36. THBI~B B~uth 5~ degrees $5 minnies 30 Bncond· eeBt, along the eivlBlon l-'-e of lots #3S and { 36 · distance of 150.00 foot to the paint or place of BP~IN~ING. iB~oII~ AI~ ll~_ NDED to *w par~ of the sm premises convoyed {4rtieB or the fir;., part by deed dated April 11, 1972, end recorded in tho Office of the Clerk of the County of Suffolk on April 12, lmm:, in Libor 7140 Page 32. d r. ~~r$--'- -~ ........ ~"~0~'1'1~1' Iv ~'~- · June ~E~ARD r. SPRNO and R~ M. SpANO, 505 Bayez ~d Matt]t~ck, Ne~ York 11952 RICHRRD GAkCIA, residing at 1800 Westphalia Boa,], Mattituck, Ne~ York SCHED~ A All this certain plot, piece or parcel of land, with tho buildings ~.hereon erected, situate, lying and being at M~ttltuck, Town of Southold, Suffolk County, b York, and design&r~l no Lot f36 on *AMnc~S l~up of l~ttltuck Heights, Prol~rty Of Guotnv Bayu~. at MAttittlck, SuffolY County, b York' and filed in the Suffolk County Clerk's Office on July 24, 1935, do Ma[ J1184, which said lot is moro particularly bounded and described as follMt BEGIJFdI~G at u point on tho northwesterly side Of Bayer Lots 0~4 and ~37 on the above map, ~lch said point of begionXng is locotnd on tho norty~s~orly side of Bayer Ro~d, dior&nS df 100.00 feet ~st of tho intersection of the southerly tide of Grant Blvd., with tho ~oterly olde of ~I1~ THBI~S South 31 d~qE~Jo 04 minutes l0 seconds Wes;, along the northwesterly side of Soyer Road, 8 dlotnncm of 50.00 font to n point J~arking the division line of t~o herein described lot nnd Lot 8351 t'd~CU Berth 58 degrees 5S minutes 30 seconds West, along the divisiou line of Lots 135 and t36 · distance of 150.00 font to · point; THee ~orth 31 d2grees 04 minutes 30 necondl EelS, S0.00 font to I point Barking the division lint of Lute IlS and THnCR South S8 degrees S$ minutes 30 seconds Rest, along the division line of Lots J36 and il?, a distance of IS0.00 font to tho paint or place o~ und rucorded in tho Office of ~ho Clerk of tHe County of Suffolk on April 12, 1972, in %lber 7140 Page 32. mm m m m AIiO the Mrt7 of the first pert c~nlnts that ~tm~" dudJ b~ ~strv~d as if it rud 'pertk~" v.ht. Mver t~e ~ o! this indemu~ so reqdm. AVE ~4. SJ~ANO-/ ' -~' d~'et 3une 19 ,~,be~eeeme L,eonard r. Spano 4e~, o! I~' Richard F. Lark, Esq. Main Road - Box 973 Cut~hogue0 New York 11935 TOWN OF SOUTHOLD O~'ICE OF BUILDING INSPECTOR P.O. BOX 1179 TOWN HALL SCUTHOLD, N.Y. 11971 VACANT LAND ~-~TIFICATE OF OCCUPANCY ?-L. 765-1802 NO. Z-17543 DATE NOVEMBER 28~ 1988 Location of Property 505 BAYER RD. MATTITUCK~ NEW ~0RK NUMBER STREET HAMLET COUNTY TAX MAP # Section 139 Block 3 Lot 14 SUBDIVISION M/O Mattituck Heights Filed Map # Lot 36 conforms substantially to the applicable provisions of the Z~ning Code of the Town of Southold. The Premises are located in the'A'RESIDENTIAL AGRICULTURAL Zoned District. YOU ARE HEREBY NOTIFieD that the above referenced lot may be built upon' only after the issuance of a building permit and compliance with the following requirements of the Town and the rules and regulations of such additional State and Count~ agencies or regulations thereof that may be applicable. That the lot is held in single and separate so held prior to the adoption of any amendment Ordinance which may ~have increased area, or have emended front, side, or and has been to our Town Zoning for lot width or set back requirements. 2. That if this lot is si~'~d within ~ necessary road, dra~.f~e," ' "~nd other r( completed in accord w th Re rules and Board and those of th H~hwa¥ Department That~he lot receiv~ That t~ Department 4. ob~d. Environmental 5. That the Board of Trustees approval Health Department 6. That the Board of Zoning Appeals YOU ARE FURTHER NOTIFIED that this Bui independent determination as to the applJ above in issuing this Vacant Lot ~d subdivision that all improvements have been [tions of the Planning the Town of Southold. ~roval as to water and srvation appeal has been been obtained. has been obtained. Department has made no y of any one or all of the of Occupancy. The Certificate is issued to: of the aforesaid lot. LEONARD F. & AVE MARIA SPANO ~wner, ~~Q~ ) Rev. 12/29/87 FO~M NO. ~ TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN HALL SOUTHOLD, N. Y, BUILDING PERMIT ~HIS PERMIT MUST BE KEPT ON THE PREMISES UNTIL FULL COMPLETION OF THE WORK AUTHORIZED) ~8355 Z Permission is hereby granted to: ~,~ . / . ~,~..../..~...~ .... ~~ ...... ,o ..... :.~..,~..~.....;~..~~ ...... ~ · ~.,,., ......... .~ ~'.,,/~,~'/ ~ . / ~ _ ~ at premises Iocatec~a~.......~..~....~.... ......... ~..~...~~ ............................ ........................................... .~~../....~.:....~ ............................. .......................................................... l,..1....~.~.~.: ..................................................................... c~,,~, Tox Mo~ No. ,ooo S,ction .../..Y_.ff.. .... ,,o~,, .... .~... ........... Lot No ....... /....~ ....... pursuant to application dated .......... ..~.......~.... .............. , ,9..~..~and approved by the Building Inspector. Rev. 6/30/80 TOWN OF SOUTHOLD PROPERTY RECORD CARD ~-~ /"/'/~ OWNER STREET VILLAGE DIST. SUB. LOT ~-~, ~". 3.' '~" ~" 7 ~ ~o~. c,. ~,,~. ~,.v.,.. ~ /r ~ D IMP. TOTALDATE RE~RKS AGE BUILDING CONDITION N~ NOeL BELOW ABOVE FARM Acre Value Per Value Acre Till~ I Till~ 2 Tilloblo 3 Woodlond Swamp[qnd FRONTAGE ON WATER Hou*e Pl~t D[~TH BULKH~D Total DOCK TOWN OF SOUTHOLD PROPERTY RECORD CARD "-- w/- /~' "':': /ooo - 137- ~ -I~ OWNER STREET VILLAGE DIST. SUB. LOT ,~ ~ . FOR~ER OWNER N E ACR. '171' -,C~nO~ ~ ~ S W ~PEOF BUILDING tES.~/~ S~S. VL FARM CO~. CB. MISC. Mkt. Value ~ ~P. TOT*~ O*TE RE~R~S AGE BUILDING CONDITION N~ NOR~L BELOW ABOVE FA~ Acre Value Per Value Acre wamFJand FRONTAGE ON WATER rushlond FRONTAGE ON ROAD ~ouse ~lot DEPTH BULKH~D oral ~te~sio~ ~×tensio~ ~xtension Breezeway Patio O.B. COLOR 3osement ~xt. Walls Fire Place Both Floors Interior Finish Heat Rooms 1st Floor Dinette LR. DR. BR. Type Roof Recreation Room Rooms 2nd Floor FIN. B. Dormer ~)rivewey SUFFOLK COUNTY ,STER PLAN UPDATE pREPARED aY PARISH I~ wEINER, INC.- PLANNING AND COMMUNITY DEVELOPMENT CONSULTJ~NTS - TARRYTOWN, NI R -80 ~ A-C ~TTmJCK R-~sO -8O A-C ,/ MI § 100-32 SOUTHOLD CODE § 100-3~ (3) All Iota shown on minor subdivision maps that have been granted sketch plan approval by the Planning Board prior to May 20, 1983. (4) All lots set off or created by approval of the Planning Board subzequent to November 23, 1971, and prior to May 20, 1983. C. The bulk and parking requirements for single-family dwellings set forth in Columns i and iii of the Bulk Schedule and Parking Schedule incorporated into this chapter shall apply to the following Iot~ (1) All Iota shown on minor subdivision maps which have been granted sketch plan approval by the Planning Board on or after May 20, 1983. (2) All lots shown on major subdivision maps upon which the Planning Board has held a hearing for preliminary map approval on or after May 20, 1983. (3) All lots set off or created by approval of the Planning Board on or after May 20, 1983. D. The bulk and parking requirements for two-family dwellings set forth in Column xii of the Bulk Schedule and Parking Schedule incorporated into this chapter shall apply to the following lot~ (1) All lots shown on minor subdivision maps which have been granted sketch plan approval by the Planning Board on or after May 20, 1983. (2) All lots shown on major subdivision maps upon which the Planning Board has held a hearing for preliminary approval on or after May 20, 19~3. (3) All lots set off or created by approval of the Planning Board on or after May 20, 1983. § 100-33. Acce~ory buildings. In the Agricultural-Conservation District and Low-Density Residential R-80, R-120, R-200 and R-400 Districts, accessory § 100-31 ZONING § 100-3~ Co) Adequate supervised parking facilities shall be provided. (c) No signs, except one (1) one-promises sign not larger than six (6) square feet in size displayed for a period of not longer than one (1) week immediately prior to the day of such sale, shall be permitted. (d) A permit is obtained therefor from the Building Inspector upon the payment of a fee of fifteen dollars ($15.). § 100-32. Bulk, area and parking regulations, No building or promises shall be used and no building or part thereof shall be erected or altered in the Agricultural-Conservation District and in the Low-Density Residential R-80 District unless the same conforms to the Bulk Schedule and Parking Schedule? incorporated into this chapter with the same force and effect as if such regulations were set forth herein in full, as well as to the following bulk and parking requirements: A. In the case of a lot held in single and separate ownership prior to November 23, 1971, and thereafter, with an area of less than forty thousand (40,000) square feet, a single-family dwelling may be constructed thereon, provided that the requirements of Column vii of the Bulk Schedule and the Parking Schedule incorporated in this chapter are complied with. B. The bulk and parking requirements for single-family dwellings as set forth in Column ii of the Bulk Schedule and the Parking Schedule incorporated into this chapter shall apply to the following lots: (1) All lots shown on major and minor subdivision maps which were granted final approval by the Planning Board prior to May 20. 1983. (2) All lots shown on major subdivision maps upon which the Planning Board has held a hearing for preliminary map approval prior to May 20, 1983. 7 Editor's Note: The Bulk Schedule is included at the end of this chapter, and the Parking 10049 § 100.33 ZONING § 100.30A.2 buildings and structures or other accessory uses may be located in the required rear yard, subject to the following, requirements: A. Such buildings shall not exceed eighteen (18) feet in heig.ht. B. Such buildings shall be set back no less than three (3) feet from any lot line. C. All such buildings in the aggregate shall occupy not moro than forty percent (40%) of the area of the required rear yard. ARTICLE IIIA Low Density Residential R-40 District [Added 1-10-89 by L.L. No. 1-1989] § 100.30A. 1. Purpose. The purpose of the Low-Density Residential R-40 District is to provide areas for residential development where existing, neighbor- hood characteristics, water supply and environmental conditions permit full development densities of approximately one (1) dwelling. per acre and where open space and agricultural preservation aro not predominate objectives. § 100.30A.2. Use regulations. In an R-40 District, no building or premises shall be used and no building' or part of a building, shall be erect~i or altered which is arranged, intended or designed to be used, in whole or in part, for any uses except the followin~ A. Permitted uses: (1) Same as § 100-31A of the Agricultural-Conservation District. B. Uses permitted by spec/al exception of the Board of Appeals. The following uses are permitted as a special exception by the Board of Appeals, as hereinafter prmSded, and subject to site plan approval by the Planning' Board: (1) Same as § IO0-31B of the Agricultural-Conservation District. except that a children's recreation camp. farm 10051 z- cz- ~9 § 100-30A.2 SOUTHOLD CODE § 100-40 labor camp and veterinarian's office and animal hospital are not permitted and bed-and-breakfast uses do not require site plan approval. (2) Libraries, museums or art galleries. C. Accessory uses, limited to the following:. (1) Same as § 100.31C of the Agricultural-Conservation District~ § 100.30A.3. Bulk, area and parking regu]ations~ No building or premises shall bo used and no building or part thereof shall bo erected or altered in the Low-Density Residential R- 40 District unless the same conforms to the requirements of the Bulk Schedule and of the Parking Schedule, s with the same force and effect as if such regulations were set forth herein in full. § 100.30A.4. Accessory buildings. Accessory buildings shall be subject to the same requirements as § 100-33 of the Agricultural-Conservation District~ ARTICLE IV Hamlet Density (HD) Residential District [Added 1-10-89 by L.L. No. 1-19899] § 100-40. Purpose. The purpose of the Hamlet Density (HD) Residential District is to permit a mix of housing types and level of residential density appropriate to the areas in and around the m~or hamlet centers, particularly Mattituck, Cutehogue, Southold, Orient and the Village of Greenport. 8 Editor's Note: The Bulk Schedule is included at the end of this chapter, and the Parking Schedule bi in § 100-19IA. 10052 2- ~- ss 20.000 {vii) gO.COO (v~i) 40.000 20.000 (vii) 80,000 (vii) NA 10.000 (xi) 12,000 (xi) NA 10.000 (ii) 40.000 (ii) 80.000 (iii) 40.000 (ii) 40,000 (ii) NA 20.000 (vii) 20.000 (vii) NA 20,000 NAs NA 20,000 NA{ NA 10,000 NA~ NA NA 6.000 NA NA 6.000 NA NA 4.000 NA I ROB~{~i] numerals refer to appllcable column in the Residential Bulk Schedule. Where no Roman numeral is indicated, refer to the district column in the Re~identlal Bulk ~ehedule. ~ For multiple dwelling, hotel, rnoto{ and/or conference ~ (where permitted), this table refers to minimum lot a~ea per unit. Refer to the Renidential Bulk Sehedu~ for total lot size, yard and setback dimensions for the applicable district, un{ma more-re~trictlve requirementa ~re indicated in the text of the chapter. ' [Amended 8-1-89 by L.L. No. 14-1989] I0 - 25 - 89 § 100-243 SOUTHOLD CODE § 100-244 § 100-243. Nonconforming buildings with nonconforming use~ A. A nonconforming building containing a nonconforming use shall not be enlarged, reconstructed or structurally altered or moved unless the use of such building is changed to a conforming use. B. A nonconforming building containing a nonconforming use which has been damaged by fire or other causes to the extent of more than fifty percent (50%) of its fair value shall not be repaired or rebuilt unless the use of such building is changed to a conforming use. § 100-244. Nonconforming lots. A. This subsection is intended to provide minimum standards for granting of a building permit for lots made nonconforming or continued in a state of nonconformance by the adoption of this Article and that were singly and separately owned as of the effective date of this Article. A nonconforming lot separately owned and not adjoining any lot or land in the same ownership at the effective date of this Article and not adjoining any lot or land in the same ownership at any time subsequent to such date may be used, or a building or structure may be erected on such lot for use, in accordance with all the other applicable provisions of this chapter, provided that proof of such separate ownership is submitted in the form of an abstract of title showing the changes of title to said lot, which abstract shall be in the usual form, shall be certified by an attorney or a company regularly doing such work in Suffolk County or by a corporation duly licensed to examine and ensure title to real property in Suffolk County and shall contain a certification that no contiguous property was owned by an owner of the property involved since the date of any previously applicable Zoning Law. Such lot shall be granted relief for front side and rear yard dimensions as follows: § 109-244 ZONING § 100-250 Lot Yard Area Width Depth Front Side Both Sides Rear (square feet) Coverage (feet) (feet) (feet) (feet) (feet) (feet) C. In the case of single and separate ownership of a nonconform- ing lot located in a subdivision plat, approved after April 9, 1957, by the P]anning Board of the Town of Southold and filed with the County Clerk of Suffolk County, relief for all front, side and rear yard and area dimensions shall be granted to the extent that such front, side and rear yard and area dimensions were required at the time the map was originally filed with the County Clerk of Suffolk County. § 100-245. Repairs and maintenance. Notwithstanding any of the foregoing regulations, nothing in this Article shall be deemed to prevent normal maintenance and repair of any building or the carrying out upon the issuance of a building permit of major structural alterations or demolitions necessary in the interest of public safety. § 100-246. Involuntary moves. Sections 100-241A and B and § 100-243A herein are not intended to apply to involuntary movements of uses or structures as a result of condemnation actions or other litigation. ARTICLE XXV Site Plan Approval [Added 1-10-89 by L.L. No. 1-1989; amended 5-23-89 by L.L. No. 9-1989] § 100-250. Applicability. This Article shall apply to every ]and use that is permitted in the Town of Southold except the single-family home use on a single and 10144 2-25-ss 10145 7-25-89 § 100.11 SOUTHOLD CODE § 100-12 In their interpretation and application, the previsions of this chapter shall be held to be the minimum requirements adopted for the promotion of the public health, safety and welfare. Except where specifically provided to the contrary, it is not intended by this chapter to repeal, abrogate, annul or in any way to impair or interfere with any rules, regulations or permits previously adopted or issued or which shall be adopted or issued pursuant to law relating to the use of buildings, structures, shelters or premises; nor is it intended by this chapter to interfere with or abrogate or annul any easements, covenants or other agreements between parties. [Added 1-10. 89 by L.L. No. 1-1989] § 100-12. Exception~ [Amended 10-30-73 by L.L. No. 5-1973] All of the lots on the following subdivision maps shall be excepted from the lot area and lot width requirements of this chapter, and the lot areas and lot widths applicable to said lots shah be as shown and designated on said subdivision maps: Green Acres; Stratmors; Marion Manor; Cleaves Point, Section II; Fordham Acres, Section I; Fordham Acres, Section II; Sterling Homes; Eastern Shores, Section I; Eastern Shores, Section II; Eastern Shores, Section III; Eastern Shores, Section IV: Eastern Shores, Section V; Southold Shores; Sunny Shores: Moese Cove; Nassau Point; Deer Park; Village Manor; G.I. Tuthill: Edgemere Park; Willow Terrace; Soundcrest Woods; Gardiners Bay Estates, Section III; Harvest Homes, Section I; Bayview Woods Estates; Willow Point; Harbor Lights Estates, Section I; Terry Waters; Bay Haven; Corey Creek Estates; West Creek Estates; Northwoods; Vista Bluff; Jacksons Landing;, Bennett's Pond; Rosewood Estates; Sunset Knolls, Section II; Smithfield Park; Paradise Point; Harbor Lights Estates, Section III; Highwood; Nunnakoma Waters; Yennecott Park; Downsview; South Harbor Homes; Peconic Shores, Section I; Peconic Homes, Section I; Peconic Homes, Section II; Peconic Bay Oaks; Laurel Country Estates; Orient- by-The-Sea, Section II; Cleaves Point; Section III. 10012 ~. ~- ss § 100-280 ZONING § 100-281 F. At the request of the Planning Board, the Building Inspector shall review site plan applications for compliance with this chapter and requirements established in the pre~ubmission conference. § .10~-281. Building permit. No building in any district shall be erected, reconstructed, restored, moved or structurally altered without a building permit duly issued upon application to the Building Inspector. No building permit shall be iseued unless the proposed construction or use is in full conformity with all the provisions of this chapter and the provisions of all other tplicable laws, ordinance, rules and regulations. Any building rmit issued in violation of the provisions of this chapter shall be null and veld and of no effect without the necessity for any proceedings, revocations or nullification thereof; and any work undertaken or use established pursuant to the issuance of a permit in violation of the provisions of this chapter shall be invalid. A. Applications. Every application for a building permit shall contain the following information and be accompanied by the required fee and a plot plan drawn to scale and signed by the person responsible for each drawing. If no such plot plan is available, a survey is required, prepared by a licensed engineer or land surveyor. If the Building Inspector deems it necessary that plans and specifications be examined to ascertain if the proposed building will comply with applicable building construction, housing and fire codes, he may require that plans and specifications be filed with the building permit application. (1) The actual shape, dimensions, r~dii, angles and area of the lot on which the building is proposed to be erected, or of the lot on which it is situated if an existing building, except in the case of the alterations of a building which do not affect the exterior thereof. (2) The section, block and lot numbers, if any, as they appear · ~ on the latest tax records. (3) The exact size and locations on the lot of the prol~v~ building or buildings or structural alteration of an 100-281 SOUTHOLDCODE existing building and of other existing buildings on the same lot. (4) The dimensions of all yards in relation to the subject building, and the distances between such building and any other existing buildings on the same lot and adjacent lots. (5) The existing and intended use of all buildings, existing or proposed, the use of land and the number of dwelling unite the building is designed to accommodate; and the necessary computations to establish conformity to the bulk and density regulations. (6) Such topographic or other information with regard to the building, the lot or neighboring lote as may be necessary to determine that the proposed construction will conform to the provisions of this chapter. (7) An application for a building permit for construction on a wacant lot which is not on an approved subdivision map shall be accompanied by a certified abstract of title issued by a title company which shall show single and separate ownership of the entire lot prior to April 9, 1957. [Added 3-14-89 by I~L. No. 3-1989] B. No building permit shall be issued for the construction or alteration of any building upon a lot without access to a street or highway as provided by § 280-a of the Town Law. C. No building permit shall be issued for any building where the site plan of such building is subject to approval by the Planning Board, except in conformity with the plans approved by the said Board. D. No building permit shall be issued for a building in any district where such use is permitted by special exception unless and until such approval has been duly granted by the beard haxdng jurisdiction thereof. E. No building permit shall be issued for any building until approval has been received from the Suffolk County Depart- ment of Health Services for the proposed water supply and sewage disposal system. 10167 s- zs- m 10168 5- as- ss WILLIAM W~CKHAM ERICU BRESSLER LAW OFFICES WICKHAM, WICkhabl & BRESSLER, MAIN ROAD, PO. BOX 1424 MATTITUCK, LONG iSLAND NEW YOR~ II95~ 516-298-8353 tELEFAX NO. 516-298-8565 516-298-5300 January 9, 1990 Zoning Board of Appeals, Town of Southold Southold Town Hall Main Road Southold, New York 11971 Re: In the Matter of the Petition of Robert J. Ochsenreiter and Edward Lenceski Dear Sirs: Enclosed herewith please find Petitioner's Application to the Southold Town Board of Appeals which seeks a determination reversing the decisions of the Building Inspector with respect to granting Vacant Land C.O. No. Z- 17543, dated November 28, 1988 and Building Permit No. 18355Z, dated August 8, 1989. Also enclosed is the Short Environmental Assessment Form, ZBA Questionnaire and Notice to Adjacent Property Owners with certified mailing slips annexed thereto. We request this be put on for the earliest possible date. ' DCR:vm Encl. zbaenc176 JUDITH T. TERRY To: OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD Southold Town Zoning Board of Appeals Town Hall, 53095'Main Road P.O. Box 1179 Southold, New York 11971 TELEPHONE (516) 765-1801 From: Judith T. Terry, Southold Town Clerk Dated: Janua, ry 19, 1989 Transmitted herewith is Zoning Appeal No. 3908 , application of Inland Homes, Inc. for a variance. Also included is: Notification to Adjacent Property Owners; Short Environmental Assessment Form letter relative to NYS Tidal Wetlands Land Use; Notice of Disapproval from the Building Department; survey of property; and any other attachments relative to this application. Judith T. Terry QUESTIO~-:NAIRE TO 3E CO:.IPLSTED AND SUB~'IITTED YOUR ,~P. Lf=.,FION b'()l~IS '['O '['[IE 5[):\RD ~3[" A~'PEALS Please complete, sign and return to the Office of tile Board of Appeals with your completed application forms. If "Yes" is answered to any questions below, please be sure to depict these areas on your survey (or certified sketch), to scale, and submit other supporting documenta- tion. Are there 2.a)Are there (Attached Town Code, b)Are there any proposals to chang~ o~alter land contours? any areas which Con~in wetland grasses? is a list of the wetland grasses defined by Ch. 97 for your reference.) any areas open to a waterway without bulkhead? Are there existing structures at or below ground level, such as patios, foundations, etc? Yes Are there any existing or proposed fences, concrete barriers, decks, etc? If project is proposed for an accessory building or structure, is total height at more than 18 feet above average ground 1-~-~? State total: ft. If project is proposed for principal building or structure, is total height at more than 35 feet above average ground 1-~-~l? State total: ..... ft. Are there other premises under ~wnershim abutting this parcel? If yes, please submit copy of ~eed. Are there any building permits pending on this parcel (or abutting land under your ownership, if any)? State Permit # and Nature: Yes Yes 9. DO state whether or not applications are. pending concerning these premises before any other department or agency (State, Town, County, Village, etc.): Planning Board Town Board Town Trustees County Health Department Village of Greenport N.Y.S.D.E.C. Other 10. Is premises pending a sale or conveyance? If yes, please submit copy of names or purchasers and conditions of sale. (from cqnt~act) 11. Is new construction proposed in the area of contours at 5 feet or less as exists? 12. 13. If new construction is proposed in an area within 75 feet of wetland grasses, or land area at an eleva- tion of five feet or less above mean sea level, have · you made application to the Town Trustees for an 'inspection for possible waiver or permit under the requirements of Ch. 97 of the Town Code? Please list present use or operations subject property at this time and proposed conducted upon the Yes Yes Yes Yes Yes Yes Yes Yes ~O~N°~V Please submit photographs for the recorG. c.ertl~y that the above statements are true and are belng submitted for rellance~by~he~B..oard of Appeals in co~n.s.~d, ering_ my application. WI~K~A~, 3~M. &~ BR~.S%LER/~h~.C. fo~e~;~ionersh ~ e ' - (~ucnorz~e~ Agent; 1/88 WETLANDS i'Amended H-"6-7~; hy LL No. '~-l!)Tti: 85 by L.~ No. G-I9.~SI: A. TIDAL W~TI.ANDS: (1) All ~and~ genernlly covm-,.d o~ intermittently coy. ered with. ar w cb bord~.r on. thhd wat~r:~, or Jand~ lying beneath tidal water~, which at me;m ~ow tide . are covered by tidal wnter~ to a mRximt~m depth five (5) feet. inch~ding but not limited to banks. bogs. salt marsh, swamps, meadows. /lat~ or other low lying lands subj~ct to tidal actiun: (2) All banks, bogs. meadows, flats and tidal mar~h subject ~ ~uch tides al~(i upon ~vhicb grows or may grow some or any of the following: salt hay. black grass, saltwort, sea lavender, tall cordgrass, high bush. cattoiI~, ground~el, marshmallow and iow march cordgrass; and/ur (3) All land immediately adjacent to a tidal wettand as defined in Sub~ection AI~) and lying within seven. ty-five (75) feet landward of the most landward edge of such a tidal wetland. FRESHWATER WETLANI)fl: (1) "Freshwa~r wetlands us defined in Art/cie 2-1. Ti- tle 1. ~ 24-0107. Subdivisions l(a) ~ l(d) inclusive. of the Environmen~l Conservation Law of the Sta~ of New York: and (2) All land immediately adiaccnt to a "frcshw:tter wet- ]and." as defined in Subsection Ut 1)anti lying ~vith- In seventy-five (75) feet landward of the most land- ward edge of a "fi'esh~v~ter ~vetland." 970~ 617.21 :~ Appendix State Environmental Quality Review SHORT ENVIRONMENTAL ASSESSMENT FORM For UNLISTED ACTIONS Only PART I--PROJECT INFORMATION (To be completed by Applicant or Project sponsor) t. APPLICANT/SPONSOR I 2. PROJECT NAME Robert J. Ochsenreiter & Edward Lenceski Application to ZBA 3. PROJECT LOCATION: SEQR Mu.~c~oa~ty Mattituck Co..ty Suffolk 4. PRECISE LOCATION (Street address and road intersections, prominent landmarks, etc.. or provide map) 565 Bayer Road, ~attituck, New York SCTM 1000/139/3/14 5. IS PROPOSED ACTION: 6. CESCRIBE PROJECT SRIEFLY: [--~ Modiflcattonlalt eratlon Reversa' To reverse Buildina DePartment decisions AMOUNT OF LAND AFFECTED: Initially -- - acres Ultimately -- ~ acres 15,000 sq. feet WILL PROPOSED ACTION COMPLy WITH EXISTING ZONING OR OTHER EXISTING LAND USE RESTRICTIONS? /~"~ Yes J~ NO I! NO. describe briefly WHAT IS PRESENT LAND USE JN VICINITY OF PROJECT? ~[ Resident,a~ E] ,nclustrial ~['--~ Comme,c,al D Ag,icu~ure Describe: [] ParklForestlOpen space [] Other 10. DOES ACTION INVOLVE A PERMIT APPROVAL OR FUNDING. NOW OR ULTIMATELY FROM ANY OTHER GOVERNMENTAL AGENCY (FEDERAL STATE OR LOCAL)? .- [] Yes ~No If yes, list agency(s) and permit/approvals DOES ANY ASPECT OF THE ACTION HAVE A CURRENTLy VALID PERMIT OR APPROVAL? 12. AS A RESULT OF PROPOSED ACTION W~LL EXISTING PERMITIAPPROVAL REQUIRE MOOIFICAT ON? S,.n.,u,.: WICKH/~M; W~C~(H/~M & BRESSLER, P.C. tor veq:]~:loner "~": ~/ ::(~=,$--- l If the action is in the Coastal Area, and you are a state agency, complete the I Coastal Assessment Form before proceeding with this assessment OVER I (Continued on reverse side) The N.¥.S. Environmental Quality Review Act requires of this form, and an environmental review w~ll be mage by submission before any action is taken, th~s boar~ ~HORT ENVIRONMENTAL ASSESSMENT FORM INSTRUCTIONS: (a) In--order to answer the questions in this short EAF it is assumed that the preparer will use currently available information concerning the project and the likely impacts of the action. It is not expected that additional studies, research or other investigations will be undertaken. (b) If any question has been answered Yes the project may be sig- nificant and completed Environmental Assessment Form is necessary. (c) If all questions have been answered No it is likely that the project is no~ significant. (d) En_~vironmental Assessment 1. Will project result in a large physical change to the project site or than 10 acres of land? physically alter more _ ?es X No 2. Will there be a major change to any unique or Unusual land form on the site? .. ..__Yes X No 3. Will project alter or have a large effect on a~ existing body of water? ~Yes X No 4. Will project have a potentially large impact on groundwater quality? dyes ~NO~ 5. Will project significantly effect drainage flow on adjacent sites? _~_.Yes ~.~_.No ~1~ 6. Will project affect any threatened or endangered plant or animal species? ., Yes X No 7. Will project result in a major adverse effect on air quality? Yes X No 8. Will project have a major effect on visual char- acter of the community or scenic views or vista~ known to be important to the community? . Yes ~o ~ 9. Will project adversely impact any site or struct- ure of historic, pre-historic, or paleontological, importance or any site designated as a critical envlrcemental area by a local agency? Yes ,,, XNo 10. Will project have a major effect on existing or future recreational opportunities? Yes XNo 11. Will project result in major traffic problems or cause a major effect to existing transportation systems? Yes XNo 12. Will project regularly cause objectionable odors, noise, glare, vibration, or electrical disturb- ance as a result of the project's operation? ,, Yes., ~o 13. Will project have any impact on public health 14. Will prelect affect the existing community by directly causing a growth in permanent popula- tion of more than 5 percent over a one-year ~¥es X No period or have a ma]or negative effect on the ~ charact~ of the community or neighborhood? 15. Is therefpu~ic^cRntrever~y concerning th~ R-80 / R--80 R -80 -80 08-~ Ol'l 08-H 08-~1 Y CK 'mI:~' A ..... PARCEL LO ...... R DG N A M E '~ d --139.-3-14 INLAND HOMES 13~).-3-15 --' 139.-3-18.1 139.- 3-20 -- 139.-3-~1 139. -3-22 --139.-3-23 139.-3-24 " 139.-3-25 139. -3-25 13q.'3-29 ' C VD KOL~)E-ERWIN'A 13%-3-29 N VD KOLBE ERWIN A -~39.-3-30.1 C QC RICKETTS JAMES E 139.-3-31.1 C QV ORLOWSK[ BRUNO 139.-3-32.1 C RO LENAHAN J DR ~.-~-~i~MBRUST WALLER C UO OCHSENREETER ROBE)T J C O0 LENCESK! EDWARD F & WF C PH CLANCY PATRICIA M & C @A ZAHRA SALVINA C QT T~LER GREG N & RITA C RM DEVERNA RAYMOND J & WF C SF HARVEY CARROLL J ~ WF N SF HARVEY, CARROLL J & WF '~ WF - - 1988 - - LAND TOTAL 4OO 80O 1,000 90O 5OO AO0 600 80O 80O 80O 75O ?50 1,550 450 ' 550 139.-3-33.1 C SH SKIREL EDWARD J & WF 650 -139.-3'3& ..... C SE SUFFOLK COUNTY ' 300 300 139.-3-35 CSX DRAKE RICHARD E & WF 700 5,000 139,'3-36 C TQ ANDERSON jAMES T ~ WF 600 4,100 139.-3-37 C UJ HARRIS KEITH 600 5,000 139.-3-38 C VC FOX'THOMAS E & WF 600 4,000 ..... 198~ - RES PRP R H TOTAL PCF CLS SS C 400 403 4OO 5,300 800 %300 5,600 1,000 5,6~0 5,200 900 5,g00 4.500 500 4,500 3,300 ~OO 3,300 3'500 600 3,500 3,300 800 4,400 800 ~,400 4.~00 800 4.400 3,350 750 3,350 3,350 750 3,350 ' 5,450 1,550 5,450 4,550 ~50 4,550 ~,850 550 2,850 &,250 650 ~,250 300 300 ?00 5.000 600 4,100 600 5.000 600 4,000 · · 139.-3-39 139J-3-40 139.-3-41 C QR ZAZESKI DAVID J & WF ?OD S,O00 '139,-3~42 C R~ NEWALIS TIMOTHY L & MA ' 600 4,100 139.-3-43 c SD KUKIS JOANNA & ORS 600 5,900 139.-3-~4 C SW RHODES HARRY C 800 800 139.-3-45 C TP MYERS RUTH M 1,000 &,400 139,-3'46 ..... C UI MYERS' RUTH M 350 350 1~9o-3-&7 C VB WADELTON PETER & '4F 500 3,600 139j~3'48 ~-VU ~iELEWICZ jOHN' & WF 500 3,100 139.-3-&9 C WN COLES JOHN & WF 300 300 · 13%-3-50 C QQ GOUR~IDES PETER & ANDR 700 5,700 139.-4-1 £ ON MUNCH MARGARET A 700 700 139~-4~2~t ..... C ~C MONC~ RICHARD W S WF I~000 6,700 139.-4-3 C PZ SUFFOLK COUNTY 100 100 139,'4~4 ........ C ~S RICHERT ROGER F 600 4,700 139.-4-5 C RL LEVESQUE ALBERT D ~ JU 600 4,600 C VV MCMAHON JAMES C & WF 600 3,700 600 ....... ~ PY ZUHOSKI-JEROME E :& WF ' 600 3'900 600 ?00 ~,800 600 5,300 60O 5'400 600 2,900 1,700 8,900 600 4,400 600 4,000 2,200 5,500 ~no g.S~ 3,?00 5,000 700 %000 600 4'100 600 5,900 800 800 1,000 4.400 350 350 500 3,600 500 3.100 300 300 ?00 5.700 700 7OO 1,000 6,700 100 100 600 4,700 600 4,600 700 4.800 600 5,300 600 5,;00 6£0 ?.900 1,7E0 8,900 660 &,400 6C0 4,000 2,2C0 5,500 5(0 4,SqO "139.-4-6 C SE FLOWERS JOHN R 13~.-4-7 CSX MARCUS PETER 130J'4;10 C ~M 'S~iP JOHN HENRY & ANO 139.-4-12.1 C QU SIDOR EDWARD 139,'&'12.2 .... C RQ SIDOR EDWARD & WF 139.-4-13 C QR CAIN HOWARD F 139.-4-14 C RK STEIGERWALD ROBERF S & 140.-1-1 C JW GULLATT STEPHANIE 311 1 210 1 210 1 210 1 210 1 210 1 210 1 210 1 210 1 210 1 210 1 210 1 210 1 210 1 210 1 ~10 1 821 210 1 210 1 ~10 1 210 1 210 1 210 1 210 1 210 1 210 1 311 1 210 1 ]11 1 210 1 210 1 311 1 210 1 311 210 1 821 8 210 1 210 1 210 1 210 1 210 1 210 1 210 1 210 1 210 1 210 1 210 1 );'2-51 9.-1 -I 9;-1-2 q.-1 -3 9;;1-4.1 19.-1-4.2 [9.-1 -5 7.-1 -6 TJg~' 1 -7 13o. - 1 - 8 iT~9;'- 1 -9 139.- 1 -10 49.-1-11 ~s9.-1-11 ~9;-1 ll9. - 1 - 13 ~9.-1-1~. f)9.- I -15 -I~9. - 1 -16 1)9.-1-16 ~9~- 1- 17 1~9.-1-18 I3971-19 $'~9.- 1- 20.1 ~139 .- 1 -20.2 139.-1-~1 139;;1 -22 1S9.-1 139;' 1 -24 1~g.-1-25 139;-2-5 139.-3-3.1 13c)i: 3'4.1 139.-3-6.1 --139,-3'? 139.-$-8 139.-3-9 13q.-$-12 --139.-3-13 C OH HUG~Eb ~LWO~J~ ~ C PA DOZSNYAK RICHARD & wF 100 100 C PT STOUTEN~URGH P~UL & ~A 100 100 C QM GLOVER LEANDER JR ~00 300 C MR MOISA JOSEPH ~ & WF 3,900 12,200 C NK STRONG JEFFERY L & WF' 2,000 7,000 C OD ERIKSEN EUSTACE C ~ WF 2,g00 8,300 C PS PRAETORIUS RICHARD J 2,000 2'000 C QO PRAETORIUS ROGER & WF 2,000 2,000 C Pp MURPHY PAUL V &ANO 1,~00 7,800 C ~I MCCOURT GEORGE F ~ WF 600 6,200 ' CRR HUE~ MICHAEL & DOREEN - 500 6;100 C RU HAAS FREDERICK E ~ WF 500 4,200 -- ~ sN 'HAMANN NEll ALAN 400 400 C MQ HAMANN GEORGE PD & 700 C NJ BOWDEN ELOISE 600 N NJ BOWDEN ELOISE 600 ~,000 700 4~400 - C OC BASCOM8 ROY E C OV WUENSCH SHEILA & 600 5,500 C PO FOGARTY RICHARD J & WF 600 3~700 C QH WITHUS THEODORE H SR & 600 8,000 CRA DONERTY JOSEPH E & 800 6,200 N RA DOHERTY JOSEPH E & ~00 6,200 CRT CHASE STANLEY 2,700 7~000 C SM MCNULTY EDNA V 5,300 5,300 ' C TF REEVE KATHRYN M 2,600 7,000 COE AGARAB[ ALI 3..600 3,600 C PA AGARABI ALI 3~600 11,000 C OB AGARABI ALI 1~800 5,700 1,800 - -' E OU CASSATA MAR[ANO J & WF ' 1,800 ' 5'900 1,800 C PN SELLARS PAMELA J 1,800 7,000 1,800 C QG MCGINTY GERALD P ~ WF 1,200' - ~800 1,200 C QZ AGARABI AL! ~,000 7,500 $,000 COT SCHULTZ DAVID P 800 4,200 800 C PM MATT-A-MAR INE 900 2,200 900 C QF ~AKER VINA &ANO 4,800 .... 12~500 4~800 C QF JOHNSON RUDOLPH 600 ~,000 600 CQY HANFF CHARLES 0 500 - - 500 500 C SK JOHNSON RUDOLPH & WF 1,100 1,100 1,100 C SH REITER EARL JR & WF 1,~00 9,300 1,400 C TA NOWAK FRANK K & WF 1,000 8,200 1,000 C TT TANDY RICHAP~ ~ ' 1,~00 ' 6~000 ' 1~400 CNW GATTO ~DWARD J & MARY 600 3,800 600 EOP SELLARS JA~ES S ~ JOSE 800 ' 4,600 800 C PI JEAVONS HOWARD M & GER 400 $,000 400 &..~.. q~ GA~CIA RICHARD & 400 5,~00 &OD - PAGE TOTALS - 51 PARCELS IOU 100 ~00 $,900 2.000 2,000 2.000 2,000 1,400 600 500 500 400 700 600 60O 700 600 600 600 800 800 2,700 5,300 2,600 3,600 3,600 (ACTIVE) 100 12.?00 7,goo 3,300 2.000 2,000 5,~00 6.100 4.200 4OO 4,300 4,000 4.000 4,400 5.500 t,7OO $,000 6,200 6,200 7,000 5.300 7,000 3,600 11,000 5,700 5,900 7,200 4,800 7,500 4,200 2.200 12,500 4,000 1,100 9,300 8.?00 6,000 3,800 4,700 ~,OOO 5.300 323 1 311 1 210 1 210 1 210 1 311 1 ~11 1 210 1 210 1 210 1 210 1 311 1 210 1 210 1 210 1 210 1 2t0 1 210 1 210 1 210 1 210 1 210 1 311 1 210 1 311 ! 210 1 210 1 210 1 210 1 210 1 210 1 210 1 260 1 210 1 210 1 311 1 311 1 210 1 210 1 210 1 210 1 210 1 210 1 210 1 13 13 14 14 14 14 14 14 14 14 14 14 14 14 14 14 14 14 14 14 14 14 14 14 14 233,200 1988 TOTAL 253,600 1989 TOTAL TOWN OI; $OUTItOLD Suffolk County, New York 516 - 765-1801 N~ 34~2. S uthold N'W. 11971 '~.'/~ 19~ BOARD OF APPEALS, TOWN OF SOUTHOLD In the Matter or the Petition of : ROBERT J. OCHSENREITER & EDWARr] I FN£FC~KT ~'~'. ~,~,~., n-~ ~' ~--° to th, aoa,d of TO:Board of Appeals, Town of Southold NOTICE TO ADJACENT PROPERTY OWNER YOU ARE HEREBY GIVEN NOTICE: 1. That it is the intention of the undersigned to petition the Board of Appeals of the Town of Southold to reques~,a (¥afianc£) (.~1~, cial E. xceptio, n) (Spe, ci,al Permit) (Ot, he~') r, eyer. sa/ ot :_ne ~q~a~_n~ ~ns.oec~9.rs. oe:~r~_n.at~o.n oared ll/2R./RM aha H.~n~ng ~rm~ mn_ ~Ahh/ nar~n 2. That the property which is the subject of the Petition is located adjacent toyour property and is des- cribed as follows: 5CT~ No. 1000/139/3/14 Property at 565 Bayer Road, Matt~tuck, New York 3. Tha~ the propert~ which is ~he subject of such Petition is located in the following zoning district: R-40 4 ~hat h~ such Peliliun, the undersigned will request the following relief: Vacant land C.O._and Building Permit referred to above Reverse the 5. That the provisions of rhe Southold Town Zoning Code applicable to the relief sought by the under- siBned are ~krt~¢le XXIV Sectic~ 100-244,100-281,100-30A. 1 through lO0-30A. 4 ~ I00-12 [ ] Section 280-A, New York Town Law for approval of access over right(s)-of-way. 6. That within five da'~,s 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. (5].6) 765-].809. 7. That before the relief ~ought 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: January 9, 1990 '~CKH~, WICKHAM & BRESSLER- P.C or e 'oneriAJ~~'L/~j ~/L-<' ' .... /' ~,et,t,oners Rob~ert J. Ochsenreiter & Owners' Names: Edward Lenceski Post Office Address Bayer Road Mattituck. New York 11952 T~I. No. [Copy of sketch or plan showing proposal to be attached for convenience purposes.] NAME Mr. Rudolph Johnson PROOF OF MAILING OF NOTICF ATTACH CERTIFIED MAIL RECEIPTS ~rand Avenue, Mattituck, N.Y. 11952 Mr. Rudolph Johnson and Wife Wickham Avenue, Mattituck, N.Y. 11952 Mr. Howard and ~ertrude Je~vons Bayer Road P.O. Box 1122, Mattituck, N.Y. 11952 Mr. Walter Armbrust 595 Bayer Road, Mattituck, PI.Y. 11952 Mr. Richard Garcia and Corinne Lessard Barcia i800 Westphalia Rd., Mattituck, NY Hr. ~ichard ~arcia and Corinne Lessard Garcia Bayer Road, ',ate'tuck,' ~d.Y. 11952 Inland Homes, Inc. 315 Westphalia Road, Mattituck, NY 11952 William Moore, ESQ. .Rtt6~h6.y~forInland H~m~: p 8{38 954 949 RECEIPT FOR CERTIFIED MAIL NO INSURANCE COVERAGE pf~0¥1DE0 NOT FOR ~NTERNATIONAL N~AIL (See Reverse) ~.0. Box 23, Mattituck, N.Y. 11952 11952 Virginia Maginn ,residing at 850 Bungalow Lane, Mattituck,NY , bein8 duly sworn, deposes and says that on the 9 day of ,lanH~lry , 19 90 , 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 Southotd; that said Notices were mailed at the United States Post Of- fice at Mattituck, New York ; that said Notices were mailed to each of said persons by (certified) (~t~')~l) mail. Sworn to before me this 9th day of Oanuary ,19 90 (This side does not have to be completed on form transmitted to adjoining property owners.) SCHEDULE A TO APPEAL FROM DECISION OF BUILDING INSPECTOR OF ROBERT J. OCHSENREITER & EDWARD LENCESKI 1. This is an application to reverse two determinations of the Building Inspector as follows: (1) issuance of Building Permit dated August 8, 1989, granted to Inland Homes, Inc., No. 18355Z (Exhibit E) and; (2) issuance of Vacant Land Certificate of Occupancy dated November 28, 1988 issued to Leonard F. and Ave Maria Spano, No. Z17543 (Exhibit D). Both determinations relate ta~ parcel of real property located at 565 Bayer Road, Mattituck, New York, Suffolk County Tax Map No. 1000/139/3/14. The basis for this application for reversal is that the property is not a legal building lot. 2. The property in issue (1000/139/3/14) was owned by Leonard Spano and Ave Maria Spano, his wife from 1972 to'1989 (Exhibit C). The same parties also owned the property immediately adjacent to the west under the same deed during the same period (Suffolk County Tax Map No. 1000/139/3/13). Each of the properties consist of an area of approximately 7,500 square feet (Exhibit G). As a result, the two properties merged and became one parcel. There is a house existing on the property to the west of the property in issue. 3. The property in issue (1000/139/3/14) was conveyed by the Spanos to Richard Garcia by deed dated June 26, 1989 and recorded on July 7, 1989 (Exhibit C). The adjoining property to the west (1000/139/3/13) was also conveyed by deed dated June 26, 1989 and recorded July 7, 1989 by the Spanos to Richard Garcia and Corrine Lessard Garcia. Upon information and belief Corrine Lessard Garcia is the daughter of Building Department Inspector Victor Lessard. 4. The property in issue is located in an R-40 zoning district (Exhibit H). Thus, the property contains insufficient area to satisfy the requirements for a buildable lot under Article IIIA Section 100-30A(3) (Exhibit I) of the Town Code. Neither does the property satisfy the requirements of Article XXIV Section 100-244 (Exhibit J) of the Town Code with respect to non-conforming lots since the-property has not been held in single and separate ownership. The Building Permit was also issued in violation of Article XXIV Section 100-281(A) (7). I am advised the Building Department file failed to contain a single and separate search, as required. It is submitted, based on the title search of the property by SCTIC Incorporated dated~ September 13, 1989 (Exhibit C) that the property was not held in single and separate ownership. As a result of the foregoing, the property in issue is not a buildable lot and the determinations complained of must be reversed. In response to our attorneys' correspondence dated September 13, 1989, to the Southold Town Board of Appeals, they were informed that a variance had not been granted with respect to this property. 5. I am aggrieved by the determinations of the Building Inspector in that I reside on Bayer Road, Mattituck, New York and own the real property across the street from the property in issue. Construction of a residence on the property in issue will have an adverse effect on the value on my property and the quality of life in the neighborhood. 6. In support of this application the following is submitted and incorporated herewith: A. Certificate of Occupancy No. Z4575, dated 3/2/72 covering both the vacant (1000/139/3/14) and the residential property (1000/139/3/13); B. Application for Building Permit No. 18355Z dated August 8, 1989; C. Correspondence from SCTIC Inc., dated September 13, 1989 with deeds referred to therein; D. Vacant Land Certificate of occupancy No. Z-17543 dated November 28, 1988; E. Building Permit No. 18355Z dated August 8, 1989; F. Town of Southold Property Record Cards for 1000/139/3/14 and 1000/139/3/13; G. Survey of Properties dated March 30, 1972; H. Copy of portion of the present Southold Town Zoning Map with property at issue circled; I. Southold Town Code Sections 100-30A.1 through 100- 30A-4; Density and Minimum Lot Size for Residential Districts; Section 100-244; Section 100-12; SEction 100-281(a) (7), and Section 100- 32. MAY 24, 1966 BUILDING ZONE TOWN OF SOUTHOLD SUFFOLK NEV ORDINANCE / I ?, YORK 25c ; pel;enL juri.,~diction ~,o be invalid, such Hcalgh of the County of Sullolk, and no~ in conflict with any of tile pro- visions of this Ol'dinancc; P~OVIDi~D. · SECTION 1013 -- EXCEPTIONS AS (3) Sub-division Map of Pounders (19) Shore Acres, Mattitu~ N. Y. TOCERTAINSUBDIViSIONLOTS_ thousand five hundred (12,509) slluare (a) Ail of the lot~ on a certain map. ,cc.' ' ,or' each family or dwell~g ~it. entitled Map of ~iarlon Manor, ~itu- ated at East Marion. Towr, of South- old. Suffolk County. New York. filed In Suffolk County Clerk's office on March 18, 1953, as Map Ne. 2038, shall Section 303 llcrcin; As to LoLs num- bered one (I) throuch tire (5) on ~aid side; and as to lots numbered thirty- three (33) through forty-seven (4~) reduced to twenty (20) feet. . (b) All of the Lots on the fcllow~ng (1) Sub-division 5{ap of Section 2, New York, ~ap by O. W. V~ ~yl, dated July 21, 1957: (2) ~aD of ~eixcdon En~ates, Flied ! ises sllall be used for nny other then a purpose permitted in the zone in which street end e district boundary line, they indicate that tho district boundary line runs parallel to the street line at a dlstnnco as so indicated, When tho location of a district boundary line be determined by the scale of the map measured from a given line. Wl~ere the Ordinance for the particular ~ea in question. ~EC~OH ~04 ~ ~hera · dia~rtc~ boundary line divides a lo~ in a single AETiCLE III ~A' ~esidential ~nd Agrloultural District ~EOTION 30~In the .'A" Bestden- tinl and Agricultural District no build- square feet and a frontage of not less than tl~ree (Il) feet above tbs not less than two hundred . ground end tbs upper edge Of the (200) feet. air, n shell not extend more ellen ' (f) Ilailway pas.~cn~er stations. (gl Public utility buildings, struc- tures or facilities. ih) Cemeteries end thc necessary lac/den:al structures. (l) Marinas for the docking, S--Accessory buildings, including one to the dwelling. · . ~ ~ Uses customarily incidental to any of fl~o above uses when. located This ~hall be understood to include the professional office or studio of a to, and PROV2DED further, no goods ar0 publicly displayed ou tbs premises only) of the practitioner. g--The sale et retail of farm, garden ' or nursery product~ produced or grown on the premises or o~ animals raised on the premises. One (1) advertising sign, either single or double faced, not larger than four (4) feet by six (6) lng or premises shall be need and no building shell be hereafter erected or feet in size, advertising the sale of alLcrcd unless otherwise provided in form, garden or nursery products pro- t;his Ordinance, except for one (1) or duced or grow~ on tho premises or more of the following uses: of animals raised on the premises. .l--One (I) family dwellings. 4--ar. ricultural farms, poultry farms, denin~- (does not include farms for the breeding or raising of ducks). three (3) feet by four (4) feet in size not less then the required front }'ard distance and not less than ten (10) When the advertising slg~ i~ for tho Izod es a special exception by the or the sole of lots in a subdivision, l~onrd of Appeals aa hereinafter pro- one (ll real estate sign. cither single ¥1ded: ' or double faced, not exceeding twenty- ia) Tile 'conversion of any build- four (24) square feet will be permitted lng in existence at the effective on each five hundred (500) feet to one date hereof to a two family · thousand (1000) feet of fron~ge on dwelling, the highway or highways on which thc ih) The erection or construction · property fronts, PROVIDED said sign of a two family dwelling pro- ia ~et back no~ less than the front vlded tha~ the lot shall have yard red,fictions rtquired and not le~ an ~ea 0i not le~ th~ than ten (10) ieee from each side line. twenty-five ~houaand (25,000) Who lower edge ol ~e sign aha~ be thirty-five (25) feet has been estab- lished, no buildings, hereafter erected or altered, shall project beyond the llshed. decreased as a special exception by the provided. lot held In single and separate owner- ship at the effective date .of this Ordinance, of a width less than one hundred (100) feet and el an Lrea less than twelve thou. sand five hundred' exception by thc ~oard of Appeals az (12,500) feet, a single family ~lwclllng hcreinafter provided.) may be built thereon with side yards 4--Tourist camps, when authorized reduccll fifty (50) percent and may be as a special exception by farther reduced when authorized ~ a Appeals as hereinafter provided. spccl~ exception by the Board of ~m'in~ for the d~Mng, mooring Ap~als as hereinafter provided, or accm~odation of non-commercial SE~iON 36~"A" ~E~ YA~D~ boats when authorized ~ a special In the "A" Residential nnd Agrlcul- ceptlon by the Board of Ap~n~ as rural District, there ~all be a rear hereinnfter provide. yard having a minimum depth of ~Acce~ory uses of the same lot twenty-five 125) fce~ with and cus~marily incidental to any P~O~DED that, In c~e of a lot permitted u~ and no~ lnvclving the ~ held in single and separate owners~p conduct of a separa~ busine~s. at the effective da~ of this Ordinance, ~ECTION 351~H~IGH~ ~ In the having a tot~ depth of le~ than one "~" LiulCiple Residence District. no hundred GOO) feet. a single family building hereinaf~r erected ~ Mter~ dwelling may be built thereon with a sh~l exceed thirty-five (3~) fee~ or rear yard of le~ than twenty-five (25) three (3) stories In helgl~t. feet. when authoriz~ ~ a ~pecial ex- ception by the Board of Appeals az SEC~ON 352--~UiLDING AREA-- hereinafter provided and P~OVIDED In the "M' Multiple Residence Dlstric~, further that In no case shall the rear the total building nre~ shall not exceed y~d be less than fifteen (15) feet. fifty (50) percen~ of the lo~ area. SECTION 309 ~ "A" ACCESSORY SEC~ON 353 ~ SiZE OF LOT ~UILDINGS~In the "A" Residential AREA~In the "~" Multiple Rest- and Agricultural District, accessory deuce District, no ~ulldina shall be buildings may occupy forty (40) per- erected or altered on a lo~ having an cent of the requked rear yard up ~ area of le~ than tgelve thousand five . an average height of eighteen (18) feeg. hundred (12,5~) square feet and a Thc ya~ area allowed bF such ~.. frontage of le~ ~han one hundred celery buildings shall be included in GOO) feet. computing the percentage of lot area SE~ION 354 ~ ~O~ YARD to be buil~ upon and PROVIDED In the "~" ~ultiple Residence District, further that no building of any kind the requir~ front y~rd shall be no~ or nature shall be buil~ within t~ee less than thirty i30) feet. (3~ fcct of any lot l~e. ' 'SEC~O~ 355~Where the propcr~y SEC~ON 310 ~ O~-S~EE~ in the vicinity Is partly built up with PARIIING AREA~In "A" Residen- permanen~ buildings and an average ti~~ ~nd Agricultur~ Datrlcts. no setback line has been establish~, no building shall be hereafter erected or building hereinafter erected or altered ~liered or ~dded to la excess of fifty shall project beyond the line of tho (50) percent of its area prior ~ the average setback ~o established. adopUon of this Ordinance, unless not SEC~OH 35G ~ in the cazo of a less than one (I) .parMng sp~e for corner lot of record at the time of the each f~ily unit therein shall be pro- adoption of this O~inance, a fron~ vided for. For MI plies of public as- yard shall be required. Where an aver- ' }~?mbly lucluding auditoriums, churches ~e setback line h~ been established and simili~ public gathering places on each street, the yard depth sha~ erec~d there shall ~'provided not be es~blished on a line with said ~e~ than one (I) parMng space for average setback lines projected to a each ~ven (~)'permanent sea~ In point of intersection. If no average such buildings or for each part of the setback lines have been established, tho total ~ea within such building or requir~ front yard ~h~l not be less ~tructure as Is or may be ~e avail- than thirty-five 135) feet from ea~ able for seven (?) ~rmanent or street line unle~ decreased as a special ~mporary seats. ~e formula for ~ro- exception by the Board of Appe~s riding ~ adequate p~Mng ~ea ~ hereinafter provided. an area of three hundred thir~-four SECTION 357~SIDE YARDS (334) ~uare feet.per requir~ motor the "M" Multiple Residence District, vehicle unit. ; . there shall be two (2} side yards, one ARTICLE II~ (1) on each side of the buildings, the ~tal aggregate of both side yards shall "~F' ~iuEiple ~esidcnce District be twenty-five (25) feet and no one S~CTION 35~In the "~" Multiple (1) side y~d shall be less than ten ~sidence District, no building or prem- (10) feet. isc3 ~hall be used, and no building khall SEC~ON 35~REA~ YArD be hereafter erect~ or altered uhless the "M" Multiple Residence Dls~rlc~ otherwise provided In this ordinance there shall be a rear yard having a except for one (I) or more of ~he fol- minimum deptl~ of twenty-five (25) lowing uses: , feet. i~AIi permit~d uses in "A" Real- SEC~ON 359 ~ OF~-STRE~ ~. PARIIINO AREA ~ In the Multiple Residence District, no build- lng shall be hereafter erected or altered or added to in excess of fifty (50) mum provlslon ~pace for each u~~ family (b) Rotels, boarding houses ~ One (1) paring aac~ two (2) gues~ r~ms. (o) Motels told Tourls~ Cottages Multiple Residence D stric~ the follow- lng sig~ ~re ~itted. dentlal ~nd Agricultural ~On premises used for ho~el, motel, ~nle~ o~herwlse Irovlded as · speciM '" exception by the Board of Appeals herein~f~r provided, one (I) ~dverUs- lng sl~, elUler Single or double nrta, tile lower edge of which shall be not le~ thnn four (4) feet above the ground, and the upper edge of which shall not exceed more than thirty-five (35) feet above the ground. Such sign ~hall advertise only the business con- duct~ on the premises, and shall be se~ b~k not less than five (5) feet from aB street and property lines, dlnance excep~ for one (1) or more of 2~Dwelllngs designed for and cupied by not more than four (4) families. 3~Bo~dlng and tourist houses. 4~Accessory uses on the same lot with and customarily incidental to any permitted uses .~d not lnvolv~g a comply with the provisions of Article Ilia with respect to building height, building area, size of lo~ area, front ~arking area ~d signs. ARTICLE IV SEC~ON 400~In the 'B" Bas.ess District, no building or premises shall be used, and no building ~hall be here- after erect~ or altered unless other- wi~ p~ovided In this Ordnance, except for one (1) or more of the follow~ng ~e$1denUal and Agricult~al, ~esldcnce, "B-I" Business and "~-2" ~usiness District. 2~orage houses. 3---Ice manufac~.urers. percent of its area prior to thc adop- 4--Expres$ carting or hauling offices tlon of this Ordinance, unless a mini- or stations. ' T~n Attorney _ .................... MA~HEW ~. K[ERN~'~ Assistant Town Attorney OFFICE OF THE TOWN. ATTORNEY 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 INTER-OFFICE MEMORANDUM FROM THE TOWN ATTORNEY'S OFFICE TO: FROM: DATE: RE: Gerard P. Goehringer, Chairman. Zoning Board of Appeals Members of the Zoning Board of Appeals~ Matthew G. Kiernan. Assistant Town Attorney March 21, 1991 Inland Homes v. Goehringer. et al. As I have previous advised Linda Kowalski. we have received a Memorandum Decision from Judge Baisley with regard to the above-referenced Article 78. A copy of Judge Baisley's Decision is annexed hereto for your review, The crux of the Court's Decision is found on page 5, which states that the Petition is granted, the ZBA's resolution is annulled and the proceeding is remitted to the Zoning Board for purposes of directing the Building Inspector to reinstate the building permit. Judge Balsley's Decision is based on his finding that the appeal to the Zoning Board by the aggrieved property owner was untimely. Specifically. the Judge found that the delay of over 3 months, from October 17. 1989 the date when the aggrieved parties had notice of the issuance of the building permit, to February 1. 1990 the date when the aggrieved parties filed their notice of appeal. during which time Inland Homes erected the foundation and commenced the framing of the building, is. standing alone, unreasonable. Judge Baisley also correctly pointed out that the Zoning Board has failed to establish a time period within which an aggrieved party must appeal a determination by the Building Inspector as required by Town Law Section 267 {3). Since receiving the decision I have been assisting Linda Kowalski on drafting a rule which would satisfy the requirements of Town Law, Petitioner has advised that a proposed Judgment will be submitted for Judge Baisley's signature on March 25, 1991, Until we are served with a signed copy of the Judgment with Notice of Entry. technically, this decision is not in effect, We will advise you upon being so served. Should you have any questions with regard to Judge Baisley's Decision. or its impacts, please feel free to contact me, cc: Town Board 4 SUPREME COURT, SUFFOLK COUNTY MEMORANDUM INLA~D HOMES, INC., Petitioner, For a Judgment pursuant to Article 78 of the CPLR, -against- GERARD P. GOEHRINGER, Chairman, CHARLES GRIGONIS, JR., SERGE DOYEN, JR., JOSEPH H. SAWICKI, JA~ES DINIZIO, JR., Con- stituting the SOUTHOLD TOWN ZONING BOAR~ OF APPEALS, Respondents. PACHMAN & OSHRIN, ESQS. Attorneys for Petitioner 366 Veterans ~morial Highway P.O. Box 273 Ccamack, New York 11725 SPECIAL TERM BY BAISLEY J.S.C. · DATED FEBRUARY 21, 1991 I~DEX #90/14214 Ref. Date 11/2/90 CDISPSJ 19 Attorney for Respondents 53095 Main Road Southold, New York 11971 In this proceeding pursuant to CPLR Article 78, the petitioner seeks review of a decision of the respondent zoning board of appeals (the "Board") which reversed the determination of the Building Inspector of the Town of Southold (the "Building Inspector") to issue a building permit to the petitioner. The Board's decision, date~ May 15, 1990, granted an appeal by certain aggrieved property owners, reversed the Building Inspector's determination to issue a building permit to the petitioner, and invalidated the building permit issued to the petitioner. The petitione~ challenges the Board's decision on t~o grounds. First, the petitioner contends that the Board's decision is based upon 'an untimely appeal of the Building Inspector's determination to issue the building permit by the aggrieved property owners. Second, the petitioner asserts that the Board's decision is arbitrary and capricious, since it is not supported by findings or by the evidence in the record. The decision of the Board is annulled and this proceeding is remitted to the Board for the purpose of directing the Building Inspector to reinstate the petitioner's building per~.'y. The facts underlying this proceeding are as follows. On August 8, 1989, the Building Inspector issued a building permit to the petitioner for the construction of a single family dwelling at 565 Bayer Road, Mattituck, New York. On August 30 and August 31, 1989, the petitioner excavated the property and prepared the footings for the building's foundation. By letter dated October 17, 1989, an attorney retai~ed by certain residents in the area of the petitioner's property wrote a letter to the Southold Town Attorney questioning whether the petitioner's parcel was a valid building lot. The residents did not submit any objections to the Building Inspector or to the Board. By letter dated December 11, 1989, the Southold Town Attorney stated that the building permit issued to the petitioner appeared to be valid, but noted that the final interpretation of the zoning code was within the province of the Board. Early in January, 1990, the petitioner erected the foundation for the structure. On January 15, 1990, the petitioner coamenced the framing for the building. On January 19, 1990, the above mentioned residents filed a notice appealing the Building Inspector's decision with the Board and the town clerk. On February 1, 1990, the aggrieved residents served the Building Inspector with the notice of appeal. On February 1, 1990, the Board commenced a series of hearings on the appeal. After the first hearing, the Board concluded that the residents filed their appeal in a timely manner pursuant to the past practices of the Board, since they filed their notice of appeal with the Board within twenty days after the petitioner erected the foundation and cc~r~nced framing the building and while the building permit was still valid. The Board failed to establish a tim~ period within which an aggrieved party must appeal a determination by the Building Inspector as required by Town Law §267 (3). By failing to prescribe such a period for appeals, the Board deprived both the petitioner and the aggrieved property owners of the knowledge of when the Building Inspector's decision to issue a building permit to the petitioner became final. See, Maroney v. Friere, 74 Misc. 2d 339, 343 N.Y.S. 2d 183 (Sup. Ct., Westchester Co. 1973). Furthermore, by failing to specify a general time period for appeals as required by statute, and by deciding the timsliness of appeals on a case-to-case basis, the Board acted arbitrarily and capriciously and in excess of the authority granted to it by Town Law §267 (3). See, Id.; Ehrenberg v. Persons, 8 A.D. 18, 185 N.Y.S. 2d 369 (4th Dept. 1959). In failing to prescribe a time period for appeals pursuant to the statute, the Board divested itself of the power to determine the timeliness of appeals frc~ determinations of 'the Building Inspector. See, Ehrenberg v. Persons. -2- Accordingly, the determination of the Board that the aggrieved residents' appeal of the Building Inspector's decision to issue a building permit to the petitioner was timely is arbitrary and capricious and in excess of the authority granted to the Board by statute. The Court must now determine, without reference to the determination of the Board, whether the appeal to the Board of the Building Inspector's determination to issue a building permit to the petitioner was timely. See, Ehrenber$ v. Persons; Cave v. Zoning Board of A~peals of Village of Fredonia, 49 A.D. 2d 228, 373 N.Y.S. 2d 932 (4th Dept. 1975), appeal denied 382 N.Y.S. 2d 1030. The determination of whether the appeal was timely is governed by a standard of reasonableness. In deciding whether the appeal to the Board was timely, the Court must consider the date upon which the appealing parties were chargeable with notice of the issuance of the building peri, it to the petitioner, the time within which the appealing parties made their appeal, and whether any action by the petitioner or the respondents caused or contributed to any delay in taking the appeal. Id. In the instant proceeding, the aggrieved residents who appealed to the Board clearly had notice of the issuance of the petitioner's building permit on October 17, 1989, the date upon which their attorney wrote a letter to the town attorney regarding the petitioner's building permit (in fact, it would be reasonable to charge the aggrieved residents with notice of the issuance of the petitioner's building permit on August 31, 1989, the date that the footings were prepared after the excavation of the property). However, the aggrieved owners did not appeal the Building Inspector's decision to issue the petitioner's building permit until February 1, 1990 (the date on which they filed their notice of appeal with both the Board and the Building Inspector). See, Town Law §267 (3). The delay of over three months, frcm October 17, 1989 to February 1, 1990, during which time the petitioner erected the foundation and c~nced the framing of the building, is, standing alone, unreasonable. The respondents contend that the aggrieved residents' delay in appealing to the Board was justified by and was the result of the fact that the Town Attorney did not respond to their letter dated October 17, 1989 until December 11, 1989. In support of this proposition, the respondents cite Matter of Pansa v. Damiano, 14 N.Y. 2d 356, 251 N.Y.S. 2d 665 (1964). In Pansa, the petitioner challenged the issuance of a building permit to a neighboring property owner. -3 - After learning of the issuance of the permit, the petitioner met with a number of city officials, including representatives of the building department, which issued the permit, and d~manded, that the city revoke the permit. Thereafter, at least one city official told the petitioner that he would be informed of the board's decision on his demand that the city revoke the permit and that he could appeal the decision to the board of appeals. On the day the petitioner received notice that the city would not revoke the permit, he appealed to the board of appeals. The Court of Appeals held that, on the facts presented, the petitioner was not required to appeal to the board of appeals until the city rejected his demand for revocation of the permit with some formality. The Court's holding in Pansa docs not control the outccme of this proceeding for a number of reasons. First, the aggrieved residents in this proceeding, unlike the petitioner in Pansa, never requested that the town revoke the petitioner's peri, it before they appealed to the Board. Instead, on October 17, 1989, the aggrieved residents wrote a letter to the town attorney in which they questioned whether the petitioner's property was a buildable lot. Even if the Court were to consider the letter as a request or demand for revocation of the petitioner's building permit, the aggrieved residents did not address the demand to the Building Inspector, the offical who issued and who could therefore revoke the permit. The town attorney does not possess the power to revoke a building permit or to reverse a decision of the Building Inspector. Furthermore, unlike the petitioner in Pansa, neither the respondents nor any town official induced the aggrieved residents to delay an appeal to the Board until after the town attorney answered their letter. As a result, the fact that the town attorney,, in his response to the aggrieved residents' letter, noted that the final interpretation of the zoning cede was within the province of the Board does not provide any excuse or justification for the residents' delay in appealing to the Board. Finally, in contrast to the petitioner in Pansa, the aggrieved residents herein 'did not file their notice of appeal pursuant to Town Law §267 (3) until February 1, 1990, over a month after the town attorney's response to their letter. This delay, in inself, is unreasonable. Accordingly, the aggrieved residents were not justified in waiting unti~ after the town attorney answered their letter before appealing to the Board. In view of the foregoing, the petition is granted, to the sole extent that the decision of the Board reversing the Building Inspector's detrmination to issue a building permit to the petitioner and invalidating the building permit is annulled and this proceeding is remitted to the Board for the purpose of directing the Building Inspector to reinstate the petitioner's building permit. Settle j udgm~nt. -5- ' OWNER STREET VILLAGE DIST. SUB. FORMER OWNEI~ N E "ACR. \ omrcJ~,,anO ~ ~ S ~ES. ~'~/,{) SEAS. VL FARM COMM. CB. MISC. Mkt. Value LAND IMP. TOTAL DATE REMARKS AGE BUILDING CONDITION NEW NORMAL BELOW ABOVE FARM Acre Value Per Value Acre ~ bble hlloble 2 l/oodbnd w~mplond FRONTAGE ON WATER rushbnd FRONTAGE ON ROAD ~'~ ' ~ ~ ~ ~ - BULKH~D - . ,: -: ~ COLOR ~'~ / TRIM ~",, ~ ,, I -- ~ -oundation ~' -~ d ~ Bath / Di~e M. Bldg. ~7~ 3~ ' ~/~ ~,~ ~ ~ -- ~tenslon ~, Wells ~,~,:~ . Interior ~ini~ ~z ~ ~/~ LR. ~tension Fi~ Piece ~[ 5 H~t ~ s DR. T~e ~f R~s Ist Flor Po~h ~ ~ R~r~ti~ R~ R~ms 2nd Flor FIN. B. Porch~,', ~ . ~ ~ ~ ~rmer Breezeway Driv~ Potio O. 8.