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HomeMy WebLinkAbout3785 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWlCKI JAMES DINIZIO, JR, Southold Town Board of 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 ACTION OF THE BOARD OF APPEALS Appl..No. 3785: PUBLIC HEARING in the Matter of the Application of RAYMOND NINE, CHARLES ZAHRA and PAMELA NINE for a Special Exception to the Zoning Ordinance, Article III, Section 100-30B(16) for permission to establish "Bed and Breakfast Use," 'an owner-occupied building, other than a hotel, where lodging and breakfast is provided for not more than six casual, transient roomers, and renting of not more than three rooms.' Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; County Tax Map District 1000, Section 114, Block 11, Lot 20. WHEREAS, a hearing was held on the Board's own motion upon request of the applicant on March 9, 1989 in the Matter of Appl. No. 3785 for RAYMOND NINE, CHARLES ZAHRA AND PAMELA NINE (received February 27, 1989, as amended to include Pamela Nine); and WHEREAS, at said hearing all those who desired to be heard were heard and their testimony recorded; and WHEREAS, the Board has carefully considered all testimony and documentation submitted concerning this application; and WHEREAS, the Board Members have personally viewed and are familiar with the entire record, including verbatim transcripts of hearings, the premises in question, its present zoning, its previous zoning, and the surrounding areas; and WHEREAS, the Board made the following findings of fact: 1. By this application, approval is sought for a Special Exception for a "Bed and Breakfast" Establishment, for the rental of three bedrooms for lodging and serving of breakfast to not more than six casual and transient roomers. 2. The premises in question is located in the "Low-Density Residential R-40 Zone District," contains a total area of 22,992 sq. ft. with 113.0 ft. frontage along the north side of New Suffolk Avenue. Southold Town Board of Appeals -2- April 13, 1989 Regular Meeting (Appl. No. 3785 - NINE & ORS, decision, continued:) 3. The subject premises is identified on the Suffolk County Tax Maps as District 1000, Section 114, Block 11, Lot 20, and was conveyed by deed dated June 5, 1986 at Liber 10062 page 225 by William Wickham as Executor of the Estate of Evelyn K. Reeve to Raymond F. Nine and Charles J. Zahra. 4. This parcel is improved with a single-family, 2-1/2 story frame dwelling, with setbacks of 54+- feet from the front property line along New Suffolk Avenue, 31+- feet from the westerly side property line along lands now or DeReeder, 40+- feet from the easterly side property line along lands now of Nine, and 108+- feet from the northerly rear property line along lands now or formerly of Wilsberg (see copy of survey dated January 14, 1986, prepared by Roderick VanTuyl, P.C.). 5. For the record it is noted as follows: (a) A public hearing was initially held on October 26, 1988 for this Bed and Breakfast Use on application made by Charles Zahra and Raymond Nine, owners of the property; (b) A decision was rendered by this Board under date of Decen~ber 8, 1988, filed in the Office of the Town Clerk on December 13, 1988, denying the initial application for a Special Exception, without prejudice, for the reasons noted therein; (c) On December 13, 1988, referral was made by the Board of Appeals pursuant to the requirements of Sections A 14-14 to 23 of the Suffolk County Administrative Code to the Suffolk County Planning Commission. This matter was deemed by the County Planning Commission to be a matter for local determination; (d) On January 9, 1989, the applicants via their attorney requested this application be set down by this Board for a rehearing based on their claim of an erroneous reading of the Bed-and-Breakfast Agreement and the law applicable to this application; (e) On January 10, 1989, the Town Board passed the new Master Plan and Zoning Amendments; (f) At a Regular Meeting held January 12, 1989, the applicant's request for a rehearing was considered by the Board of Appeals, and it was the consensus of the Board Me~bers that the applicant instead apply with a new application by the new (proposed) property owner with proof of (new) ownership and applicable testimony by the new owner; Southold Town Board of Appeals -3- April 13, 1989 Regular Meeting (Appl. No. 3785 - NINE & ORS, decision, continued:) (g) On January 13, 1989, the Board of Appeals was made aware of an Article 78 proceeding filed with the Town Clerk's Office January 12, 1989 concerning the Board's December 8, 1988 decision under the Special Exception application; (h) At a Special Meeting held February 9, 1989, the Board Members agreed to reopen the public hearing to allow submission of testimony by Pamela Nine, the person intending to operate the Bed and Breakfast establishment and intending to reside at the premises if this Special Exception is approved, and submission of any proposed amendments and additional documentation, such as proof by way of a copy of a deed or other legal document showing proof of ownership by Pamela Nine; (i) During the time of the initial application filed September 28, 1988 and about January 22, 1989 under Application No. 3785 for the same "Bed and Breakfast" use by Special Exception, the subject premises was located in the "A-Residential and Agricultural Zone District," and the provisions of law applicable have not changed since the effectuation of the new R-40 Zone District {except for the renumbering from Article III, Section 100-30B(16) to Article III-A, Section 100-30A.2(B) and Article III, Section 100-31(B15)}, which reads as follows: ...B. Uses permitted by special exception by the Board of Appeals. The following uses are permitted as a special exception by the Board of Appeals, as hereinafter provided, and, except for the uses set forth in Subsection B(15) hereof, are subject to site plan approval by the Planning Board: (15) The renting of not more than three (3) rooms in an owner-occupied dwelling for lodging and serving of breakfast to not more than six (6) casual and transient roomers, provided that the renting of such rooms for such purpose is clearly incidental and subordinate to the principal use of the dwelling... " Southold Town Board of Appeals-4- April 13, 1989 Regular Meeting (Appl. No. 3785 - NINE & ORS, decision, continued:) 6. For the record it is noted that the dwelling is and has since the filing of this application been under the ownership of Raymond F. Nine and Charles J. Zahra and has been occupied as a single-family residence by persons other than the owners and other than Pamela Nine. 7. On February 27, 1989, the application was primarily amended to include Pamela Nine as an applicant and to supplement the "Bed-and-Breakfast Agreement" provision that "Miss Nine will upon approval of this application, and at a later date come into title, occupy the premises, and operate a Bed & Breakfast." 8. One of the requirements for the grant of a Special Exception for a Bed and Breakfast establishment is owner-occupancy. 9. The record shows that none of the owners reside at the subject premises, and that the person who would come into title and occupy the premises upon approval of the Bed and Breakfast is not presently an owner. 10. The intent and purpose of the Bed and Breakfast use under the zoning code is clearly as a use subordinate and incidental to the principal dwellin~ use with owner-occupancy. It is apparent in this application that the proposed Bed and Breakfact use is not subordinate and incidental to the principal use and is not owner-occupied. 11. Also, there is clear distinction between a party to a "bed-and-breakfast agreement," a party to a contract of sale, and the definition of "owner." The Board finds that the party involved in the "bed and breakfast agreement" does not meet the requirements of the statute as an "owner." 12. For the above reasons, the Board finds that it is without authority to grant a Special Exception use where the project does not meet all of the requirements of the Zoning Code {Knadle v. ZBA of Huntington, 121 AD2d 447 (1986); Roginski v. Rose, et al., 63 NY 2d 735 (1984)~. Accordingly, on motion by Mr. Dinizio, seconded by Mr. Grigonis, it was Southold Town Board of Appeals-5- April 13, 1989 Regular Meeting (Appl. No. 3785 - NINE & ORS, decision, continued:) RESOLVED, to DENY WITHOUT PREJUDICE the Special Exception as applied under File No. 3785 in the Matter of the application of RAYMOND NINE, CHARLES ZAHRA and PAMELA NINE. Vote of the Board: Ayes: Messrs. Goehringer, Doyen, Grigonis, Sawicki and Dinizio. This resolution was duly adopted. lk GERARD P. GOEHRINGER, CHAIRMAN 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 RDAD 25 SOUTHOLD, L.I., N.Y. llg?l TELEPHONE (516) 765 1809 ACTION OF THE BOARD OF APPEALS Appl. No. 3785: Application of RAYMOND NINE and CHARLES ZAHRA for a Special Exception to the Zoning Ordinance, Article III, Section 100-30B(16) for permission to establish "Bed and Breakfast Use," "an owner-occupied building, other than a hotel, where lodging and breakfast is provided for not more than six casual, transient roomers, and renting of not more than three rooms. Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; County Tax Map District 1000, Section 114, Block 11, Lot 20. WHEREAS, a public hearing was held on October 26, 1988 in the Matter of the Application of RAYMOND NINE and CHARLES ZAHRA under Appl. No. 3785; and WHEREAS, at said hearing all those who desired to be heard were heard and their testimony recorded; and WHEREAS, the Board has carefully considered all testimony and documentation submitted concerning this application; and WHEREAS, the Board Members have personally viewed and are familiar with the premises in question, its present zoning, and the surrounding areas; and WHEREAS, the Board made the following findings of fact: 1. By this Application, applicants request a Special Exception for a "Bed and Breakfast" Establishment, for the rental of three bedrooms for lodging and serving of breakfast to not more than six casual and transient roomers, which will be incidental and subordinate to the principal single-family use of the existing dwelling. 2. The premises in question is located in the "A" Residential and Agricultural Zoning District, contains a total Page 2 - Appeal No. 3785 Matter of RAYMOND NINE and CHARLES ZAHRA Decision Rendered December 8, 1988 area of 22,992 sq. ft. with frontage along the north side of New Suffolk Avenue 113.0 feet, and by deed dated June 5, 1986 at Liber 10062 page 225, the premises was conveyed by William Wickham, as Executor of the Estate of Evelyn K. Reeve, to the Raymond F. Nine and Charles J. Zahra. 3. The subject premises is identified on the Suffolk County Tax Maps as District 1000, Section 114, Block 11, Lot 20, and is improved with a single-family, 2-1/2 story frame dwelling, with setbacks of 54+- feet from the front property line along New Suffolk Avenue, 31+- feet from the westerly side property line along lands now of DeReeder, 40+- feet from the easterly side property line along lands now of Nine, and 108+- feet from the northerly rear property line along lands now or formerly of Wilsberg (see copy of survey dated January 14, 1986, prepared by Roderick Van Tuyl, P.C.). 4. Chapter 100, Article III, Section 100-30B of the Zoning Code provides as follows: ... B. Uses permitted by special exception by the Board of Appeals. The following use(s) are permitted by a special exception by the Board of Appeals, as hereinafter provided, and, except for the uses set forth in subsection (16) hereof, are subject to site plan approval by the Planning Board in accordance with Article XIII hereof: (16) The renting of not more than three (3) rooms in an owner occupied dwelling for lodging and serving of breakfast to not more than six casual and transient roomers, provided that the renting of such rooms for such purpose is clearly incidental and subordinate to the principal use of the dwelling, subject to the following requirements: (a) That adequate off-street parking spaces shall be provided for such rented rooms in addition to parking spaces for the use of the family of the owner... 5. The record shows that both owners do not and will not reside within the dwelling, and that the individual who will reside within and occupy the residence and proposed Bed-and-Breakfast use is being assigned permission to do the same, rather than having a direct interest as a property owner as required by the statute. Further, no testimony has been furnished by the proposed occupant of the premises under oath, as an applicant, or otherwise for the record. Page 3 - Appl. No. 3785 Matter of RAYMOND NINE and CHARLES ZAHRA Decision Rendered December 8, 1988 6. In considering this application, the Board finds and determines that it is without authority to grant a Special Exception use where the project does not meet all of the requirements of the Zoning Code {Knadle v. ZBA of Huntington, 121 AD2d 447 (1986}; Roginski v. Rose, et al., 63 NY2d 735 (1984). Accordingly, on motion by Mr. Grigonis, seconded by Mr. Sawicki, it was RESOLVED, to DENY WITHOUT PREJUDICE the Application for a Special Exception as applied under File No. 3785 in the Matter of RAYMOND NINE and CHARLES ZAHRA. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis, Sawicki. (Members absent were: Member Doyen, due to serious fam~ily illness and Member Dinizio, due to bereavement.) This resolution was duly adopted. lk GERARD P. GOEHRINGER, RECEIVED AND FILED BY DATE/~//f/~Y _HOUR /m APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. ~;. SERGE DOYEN, JR. ' JOSEPH H. SAWlCKi JAMES DINIZ[0, JR. Southold Town Board °f 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 ACTION OF THE BOARD OF APPEALS AppI.. No. 3785: PUBLIC HEARING in the Matter of the Application of RAYMOND NIN~ CHARLES ZAHRA and PAMELA NINE for a Special Exception to the Zoning Ordinance, Article III, Section 100-30B(16)ifor permission to establish "Bed and Breakfast Use," 'an owner-occupied building, other than a hotel, where lodging and breakfast is provided for not more than six casual, transient roomers, and renting of not more than three rooms~ Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; County Tax Map District 1000, Section 114, Block 11, Lot 20. WHEREAS, a hearing was held on the Board's own motion upon request of the applicant on March 9, 1989 in the Matter of Appl. No. 3785 for RAYMOND NINE, CHARLES ZAHRA AND PAMELA NINE (received February 27, 1989, as amended to include Pamela Nine); and WHEREAS, at said hearing all those who desired to be heard were heard and their testimony recorded; and WHEREAS, the Board haS carefully considered ail testimony and documentation submitted concerning this application; and WHEREAS, the Board Members have personally viewed and are familiar with the entire record, including verbatim transcripts of hearings, the premises in question, its present izoning, its previous zoning, and the surrounding areas; and WHEREAS, the Board made the following findings of fact: 1. By this application, approval is sought for a Special Exception for a "Bed and Breakfast" Establishment, for the rental of three bedrooms for lodging and serving of!breakfast to not more than six casual and transient roomers. 2. The premises in question is located in the "Low-Density Residential R-40 Zone District," contains a total area of 22,992 sq. ft. with 113.0 ft. frontage along the north side of New Suffolk Avenue. Southold Town Board of Appeals -2- April 13, 1989 Regular Meeting (Appl. No. 3785 - NINE & ORS, decision, continued:) 3. The subject premises is identified on the Suffolk County Tax Maps as District 1000, Section 114, Block tl, Lot 20, and was conveyed by deed dated June 5, 1986 at Liber 10062 page 225 by William Wickham as Executor of the Estate of Evelyn K. Reeve to Raymond F. Nine and Charles J. Zahra. 4. This parcel is improved with a single-family, 2-1/2 story frame dwelling, with setbacks of 54+- feet from the front property line along New Suffolk Avenue, 31+- feet from the westerly side property lin~ along lands now or DeReeder, 40+- feet from the easterly side property line along lands now of Nine, and 108+- feet from the northerly rear property line along lands now or formerly of Wilsberg (see copy of survey dated January 14, 1986, prepared by Roderick VanTuyl, P.C.). 5. For the record it is noted as follows: (a) A public hearing was initially held on October 26, 1988 for this Bed and Breakfast Use on application made by Charles Zahra and Raymond Nine, owners of the property; (b) A decision was rendered by this Board under date of December 8, 1988, filed in the Office of the Town Clerk on December 13, 1988, denying the initial application for a Special Exception, without prejudice, for the reasons noted therein; (c) On December 13, 1988, referral was made by the Board of Appeals pursuant to the requirements of Sections A 14-14 to 23 of the Suffolk County Administrative Code to the Suffolk County Planning Commission. This matter was deemed by the County Planning Commission to be a matter for local determination; (d) On January 9, 1989, the applicants via their attorney requested this application be set down by this Board for a rehearing based on their claim of an erroneous reading of the Bed-and-Breakfast Agreement and the law applicable to this application; (e) On January 10, 1989, the Town Board passed the new Master Plan and Zoning Amendments; (f) At a Regular Meeting held January 12, 1989, the applicant's request for a rehearing was considered by the Board of Appeals, and it was the consensus of the Board Members that the applicant instead apply with a new application by the new (proposed) property owner with proof of (new) ownership and applicable testimony by the new owner; Southold Town Board of Appeals -3-.April 13, 1989 Regular Meeting (Appl. No. 3785 - NINE & ORS, decision, continued:) (g) On January 13, 1989, the Board of Appeals was made aware of an Article 78 proceeding filed with the Town Clerk's Office January 12, 1989 concerning the Board's December 8, 1988 decision under the Special Exception application; (h) At a Special Meeting held February 9, 1989, the Board Members agreed to reopen the public hearing to allow submission of testimony by Pamela Nine, the person intending to operate the Bed and Breakfast establishment and intending to reside at the premises if this Special Exception is approved, and submission of any proposed amendments and additional documentation, such as proof by way of a copy of a deed or other legal document showing proof of ownership by Pamela Nine; (i) During the time of the initial application filed September 28, 1988 and about January 22, 1989 under Application No. 3785 for the same "Bed and Breakfast" use by Special Exception, the subject premises was located in the "A-Residential and Agricultural Zone ~istrict," and the provisions of law applicable have not changed since the effectuation of the aew R-40 Zone District ~except for the renumbering from Article III, Section I00-30B(16) to Article III-A, Section 100-30A.2(B) and Article III, Section t00-31(B15)}, which reads as follows: ...B. Uses permitted by special exception by the Board of Appeals. The following uses are permitted as a special exception by the Board of Appeals, as hereinafter provided, and, except for the uses set forth in Subsection B(15) hereof, are subject to site plan approval by the Planning Board: (15) The renting of not more than three (3) rooms in an owner-occupied dwelling for lodging and serving of breakfast to not more than six (6) casual and transient roomers, provided that the renting of such rooms for such purpose is clearly incidental and subordinate to the principal use of the dwelling .... ', Southold Town Board of Appeals-4- April 13, 1989 Regular Meeting (Appl. No. 3785 - NINE & ORS, decision, continued:) 6. For the record it is noted that the dwelling is and has since the filing of this application been under the ownership of Raymond F. Nine and Charles J. Zahra and has been occupied as a single-family residence by persons other than the owners and other than Pamela Nine. 7. On February 27, 1989, the application was primarily amended to include Pamela Nine as an applicant andi to supplement the "Bed-and-Breakfast Agreement" provision that "Miss Nine will upon approval of this application, and at a later date come into title, occupy the premises, and operate a Bed & Breakfast." 8. One of the requirements for the grant of a Special Exception for a Bed and Breakfast establishment is owner-occupancy. 9. The record shows that none of the owners reside a~ the subject premises, and that the person who would come into title and occupy the premises upon approval of the Bed and Breakfast is not presently an owner. 10. The intent and purpose of the Bed and Breakfast use under the zoning code is clearly as a use subordinate and incidental to the principal dwellin9 use w'~th owner-occupancy. It is apparent in this application that the proposed Bed and Breakfact use is not subordinate and incidental to the principal use and is not owner-occupied. 11. Also, there is clear distinction between a party to a "bed-and-breakfast agreement," a party to a contract of sale, and the definition of "owner." The Board finds that the party involved in the "bed and breakfast agreement" does not meet the requirements of the statute as an "owner." 12. For the above reasons, the Board finds that it is without authority to grant a Special Exception use where the project does not meet all of the requirements of the Zoning Code (Knadle vo ZBA of Huntington, 121 AD2d 447 (1986); Roginski v. Rose, et al., 63 NY 2d 735 (1984)}. Accordingly, on motion by Mr. Dinizio, seconded by Mr. Grigonis, it was Southold Town Board of Appeals-5- April 13, 1989 Regular Meeting (Appl. No. 3785 - NINE & ORS, decision, continued:) RESOLVED, to DENY WITHOUT PREJUDICE the Special Exception as applied under File No. 3785 in the Matter of the application of RAYMOND NINE, CHARLES ZAHRA and PAMELA NINE. Vote of the Board: Ayes: Messrs. Goehringer, Doyen, Grigonis, Sawicki and Dinizio. This resolution was duly adopted. lk GERARD P. GOEHRINGER, CHAIRMAN f App Southolcl Town Board o eals APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWICKI JAMES DINIZIO, JR. 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, MARCH 9, 1989, at the following times: 7:30 p.m. Appl. No. 3826 GLADYS W. HOWELL. Variance to the Zoning Ordinance, Article VII, Section 100-71 for approval of conversion of existing accessory building for dwelling use, accessory to the main dwelling structure, in this Residential-Office (RO) Zone District. Location of Property: 51470 Main Road, Southold, NY; County Tax Map District 1000, Section 70, Block 2, Lot 2. 7:35 p.m. Appl. No. 3825 - SUSAN A. FOt~BES. Variance to the Zoning Ordinance, Article III, Section 100-31, and Article XXIV, Section 100-244 for approval of open deck addition with an insufficient front yard setback. Lot area of premises is nonconforming at approximately 11,300 sq. ft. in this R-80 Zone District. Page 2 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of March 9, 1989 7:40 p.m. Appl. No. 33813 - SHELDON HILLS as Trustee for Barterama Corp. Employees Profit Sharing Trust. Variances to the Zoning Ordinance, Article III, Section 100-32C and Column iii of the Bulk Schedule, for permission to reduce side yards to less than the required 20 and 25 feet, and less than the total 45 feet for both sideyards, on this 2+ acre vacant parcel. Zone District: R-80. Location of Property: Private Right-of-Way referred to as Private Road #11 (also referred to as Aldrich Lane Extension), extending off the north side of Sound Avenue, Mattituck, NY; County Tax Map District 1000, Section 112, Block 1, Lot 12; Southold Town Planning Board Approved Set-Off Map March 4, 1985. 7:45 p.m. Appl. No. 3828 - ROSEMARY SULLIVAN. Variances to the Zoning Ordinance, Article III-A, Section 100-32A for permission to construct 10' by 14' addition (replacing existing deck) with an insufficient rearyard setback and in excess of the maximum 20% lot coverage requirement. Zone District: R-40. Location of Property: 5365 Peconic Bay Boulevard, Laurel, NY; County Tax Map District 1000, Section 128, Block 1, Lot 11. Page 3 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of March 9, 1989 7:50 p.m. Appl. No. 3823 - THOMAS THOMPSON. Variance to the Zoning Ordinance, Article III, Section 100-32, and Bulk Schedule, for approval of existing swimmingpool with deck areas which will have an insufficient rearyard setback when attached by a raised deck to the rear of the existing dwelling. Zone District: Agricultural-Conservation (A-C). Location of Property: 2890 Bridge Lane, Cutchogue, NY; Lot #10 on Map of Ismar Acres (Approved March 13, 1973); County Tax Map District 1000, Section 85, Block 2, Lot 22. 7:55 p.m. Appl. No. 3830 - REV. CHARLES BELL. Variances to the Zoning Ordinance, Article III-A, Section 100-32A, and Bulk Schedule, for permission to construct addition at rear of existing dwelling with an insufficient rearyard setback. Zone District: R-40. Location of Property: 1330 Donna Drive, Mattituck, NY; Lot #32, Deep Hole Creek Estates; County Tax Map District 1000, Section 115, Block 15, Lot 15. Page 4 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of March 9, 1989 8:00 p.m. Appl. No. 3814 - RYCK KOKE. Variance to the Zoning Ordinance, Article III-A, Section 100-32A, for approval of swimming pool with fence enclosure in the side yard area. Zone District: R-40. Location of Property: 245 Kimberly Lane, Southold, NY; Paradise By the Bay Subdivision Lot No. 2; County Tax Map District 1000, Section 70, Block 13, Lot 20.2. 8:10 p.m. Appl. No. 3824 - NICK AND KATIE NICKOLAUS. Variance to the Zoning Ordinance, Article III, Section 100-33 (previously 100-32) for permission to locate accessory building in an area other than the required rear yard. Zone District: R-80. Location of Property: 17555 Soundview Avenue, Southold, NY; County Tax Map District 1000, Section 51, Block 1, Lot 2. 8:15 p.m. Appl. No. 3811 - RICHARD AND JANET SCHLUMPF. Variances: (a) to the Zoning Ordinance, Article III-A, Section 100-32A for permission to construct principal building with an insufficient front yard setback, and (b) pursuant to New York Town Law, Section 280-a for approval of access over private right-of-way referred to as Silkworth Road extending from the east side of Westphalia Avenue (Road), District: R-40. Location of Property: Pleasant; County Tax Map District 1000, Lot 12. Mattituck, NY. Zone Lot #1, Map of Point Section 113, Block 9, Page 5 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of March 9, 1989 AND_CHARLES ZAHRA. Special Exception to the Zoning Ordinance, Article III-A, Section 100-3iA(B) for permission to establish "Bed and Breakfast Use," 'an owner-occupied building, other than a hotel, where lodging and breakfast is provided for not more than six casual, transient roomers, and renting of not more than three rooms,' in conjunction with owner-occupancy as a single-family dwelling use. Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; County Tax Map District 1000, Section 114, Block 11, Lot 20. Zone District: R-40. 8:30 p.m. Appl. REITER as Applicants Building Inspector to Grant Building Permit No. 17508-Z dated October 6, 1988 concerning a proposed "steel building for indoor storage of boats" to be located at premises referred to as "MATT-A-MAR,,, now or formerly owned by Wickham Road Marina, Inc. Zone District: Marine (M-II). {Previous Zone District: B-Light Business}. Application was filed citing the No. 3829 - FRED RENGANESCI and BARBARA for a Reversal of a Determination by Page 6 - Notice of Hearings Southold Town Board of Appeals Regular Meeting of March 9, 1989 prior Zoning Code, Article VI, Sections 100-60 and 100-61, and Article XIV. New Zoning Code citations refer to Sections 100-121 and 100-122, and Article XXVII for the same or similar provisions for this M-II Zone District. Property Location: West Side of Wickham Avenue, Mattituck, NY; County Tax Map District 1000, Section 114, Block 3, Lot 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 the time allotted. For more information, please call 765-1809. Dated: February 9, 1989. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN By Linda Kowalski Copies to the following on or about February 17, 1989: Suffolk Times, Inc. L.I. Traveler-Watchman Town Clerk Bulletin Board (Main Lobby)ZBA Office Bulletin Board ZBA Board Members (with file copies) ZBA Individual Files Mr. Gary Williams, PO Box 1415, Southold, NY 11971 (for Howell) Ms. Susan A. Forbes, Box 802, Orient, NY 11957 Mr. Kenneth Hills, Mountain Home Builders, Inc. 24 South Court, Roslyn Heights, NY 11577, (for S. Hills) Mark Finne General Carpentry, 1370 Lighthouse Road, Southold, NY 11971 (for Rosemary Sullivan; for Rev. C. Bell) Mr. Thomas Thompson, 2890 Bridge Lane, Cutchogue, NY 11935 R£CE[VED 1988 TOWN OF SOUTHOLD, NEW YORK APPLICATION FOR SPECIAL EXCEPTION TO THE ZONING BOARD OF APPEALS, SOUTHOLD, NEW YORK: Application No. Date Filed: xI×(We), Charles Zahra & Raymond Nine of 1830 Pike Street. Mattituck. NY (Residence, House No. a,d Street) NeN Suffolk Avenue~ Mattituck! NY 11952 (516) 298-4091 or (516) 298-8260 (Hamlet, State, Z~p Code, Ielephone Number) hereby apply to THE ZONING BOARD OF APPEALS for a SPECIAL EXCEPTION in accordance with the ZONING ORDINANCE, ARTICLE TZZ , SECTION 100-30 , SUBSECTION B-16 for the below-described property for the following uses and purposes (and as shown on the attached plan drawn to scale): Bed and Breakfast A. Statement of Ownership and Interest. Cha. rlPs z,h~, ,~H R~vm~H Nq,~ xX~are) the owner(s)of property known and referred to as New Suffelk Avenue. M~tt~tunkr NY (House No., Street,,Hamlet) identified on the Suffolk County Tax Maps as District 1000, Section 114 , Block 11 , Lot(s) 20 , which is not (~(~<)x on a subdivision Map (Filed N/A , "Map of N/A. "Filed Map No. N/A , and has been approveo by the Southold Town Planning Board on N/A as a [Minor] [Major] Subdivision). The above-described property was acquired by the owner on June 5, 1986 B. The applicant alleges that the approval of this exception would be in harmony with the intent and purpose of said zoning ordinance and that the proposed use conforms to the standards prescribed therefor in said ordinance and would not be detrimental to property or persons in the neighborhood for the following reasons: C. The property which is the subject of this application is zoned "A [ x] is c~nsi~en~ with the use(s) described in the Certificate of Occupancy being furnished herewith. [ ] is not consistent with the Certificate of Occupancy being furnished herewith for the following reason(s): and [ ] is vacant land. COUNTY OF SUFFOLK) STATE OF NEW YORKi ss.: ZB2 (rev. 2/6/86) Ne. 4g0717~ ]-Signa C~'a ~'e'~ bra September , 1988. WTOWN OF SOUTHOLD, NEW YORK APPLICATION FOR SPECIAL EXCEPTION Application No. Date Filed: TO THE ZONING BOARD OF APPEALS, SOUTHOLD, NEW YORK: (We), Raymond Nine, Charles Za]lra & Paola Nine of New Suffolk Ave.. & Pike Mt.. ~t-t-i~-l~k, (Residence, House No. and' Street) T~ of Southold, State of New York 11952 (516) 298-8260 & (516~ 298-4091 (Ham]et, State, Zip Code, Te]eph0ne Number) hereby apply to THE ZONING BOARD OF APPEALS for a SPECIAL EXCEPTION in accordance with the ZONING ORDINANCE, ARTICLE III , SECTION 100-30 , SUBSECTION B-16 for the below-described property for the following uses and purposes (and as shown on the attached plan drawn to scale): B~D & Bt~T A. Statement of Ownership and Interest. Charles Z~nra and Raxarond Nine lj:~(are) the owner(s) of property known and r~ferred to as New Sttffo]]cAvenue, IV~attituck, New York 11952 (House No., Street, Hamlet) Pamela Nine, will upon apprcnFal of this application, )De a record owner pursuant to dc=~d* identified on the Suffolk County Tax Maps as District 1000, Section 114 , Block 11 , Lot(s) 20 , which is not (is) on a subdivision Map (Filed N/A --, "Map of N/A "Filed Map No. N/A , and has been approved by the Southold Town Planning Board on N/A as a [Minor] [Major] Subdivision). The above-described property was acquired by the owner on June 5, 1986 B. The applicant alleges that the approval of this exception would be in harmony with the intent and purpose of said zoning ordinance and that the proposed use conforms to the standards prescribed therefor in said ordinance and would not be detrimental to property or p~rsons in the neighborhood for the following reasons: pefntitt~ unaer Zoning Code. Pan~la Nine will upon approval of this application, ~ into title, cx~cupy the pr~n~ises and o~rate a Bed & Breakfast. C. The property which is the subject of this application is zoned [x ] is cor, si~tent with the use(s) described in the Certificate of Occupancy being furnished herewith. [ ] is not consistent with the Certificate of Occupancy being furnished herewith for the following reason(s): and [ ] is vacant land. COUNTY OF SUFFOLK) Sw~oATr~~,i~~yQj~'a~u~r,e~~~~~/~a Nine** .~J~ ay of~ mx.,~'.m,c s,~,~ , ~, ~o ~fore ~ ~is 28~ Day of Feb., 198~ TOWN OF SOUTHOLD PROPERTY"RECORD CARD OWNER STREET VILLAGE ? , DIST. SUB. LOT FoR~ER 8WNER '  ~ W . ~P~OF BUILDING .... ~Es. 2~0 s~s. VL. rFARM COMM. CB, MICS, Mkt. Valu~ ' ~ND IMP. TOTAL DATE ~KS ~-)Z~ ~ 1~1 AGE BUIhDING CONDITIO~ ~ '.~ NO~AL BELOW ABOVE FARM Acre Value Per Vulue ' Acre Tillable FRONTAGE ON WATER W~land FRONTAGE ON ROAD ' ~.: Me~o~l~nd DEPTH ~ ,ous~o~ BULKH~D 'Total ~ DOCK ~_/~,, Extension Porch Breezeway Garage Patio Total Foundation Basement Ext. Wails IFire Place ~.~-..0 [Type Roof Recreation Room Bath Floor:~ Interior Finish Heat Rooms Ist Floor Roorr s 2nd Floor ~)rive#ay Dinette N~ Should the Zoning Bonrd of Appeals see fit to grant this special exception permit, I would ask that they consider the specific relationship of my home to the house belonging to the applicants in determining how best to provide for their intended use and my family's own continued quiet enjoyment of our home. bly house was built ~n 1919 by convenient to his greenhouses and across New Suffolk Avenue stands. Herbert Reeve for his own use, located adjacent to the west where the Tolenda] Inn now In 1923, his partner and brother, Elwood Reeve, built a similar house for his family, now owned jointly by Fir. Zahra and Mr. Nine. As the owner/builders of these homes were brothers as well. as partners, as might have been expected, they built their homes different from what they might have if they had purchased tract lots and built among strangers. In 1988, as it was in 1923, the houses have only each other for adjacent neighbors. In 1964, ~r. Nine purchased the half-acre of property to the west of his own home, since merged, providing him with a large privacy buffer--more than 160 feet--between his residence and the house he owns with Mr. Zahra where their bed and breakfast is proposed. To the west of my family's home lie two vacant lots. As would be expected in houses of this age and type, the formal entrances of both homes face the street. However, the entrances designed to be used and almost invariably used by family and friends--both in 1923 and 1988--directly face each other across a common loop driveway. When my family purchased from llerbert Reeve in 1986, the homes shared not only the use of the driveway, but a common garage which straddled the property lines. Of necessity, we live close by our only neighbors, who are renting the house from Mr. Zahra and Mr. Nine. The current tenants are family people and our nearness has been an advantage, I believe, to my fami]y and theirs. We watch each others' kids, and we use each other's driveways as if both drives were our own. My family would have preferred the opportanity to make similar accomodations with the eventual purchaser of the Zahra-Nine house, but the closeness of the homes to each other becomes a significant liability to my family if the neighbors are taking in boarders. Obviously, we neither wish nor intend to foster personal or family attachments w~th our neighbor's up-to-s~x casual, transient roomers. I would ask that the Zoning Board consider a modification to the applicants' plan that will minimize the effects on my 2 family of loss of privacy and guest-related vehicle and pedestrian traffic, resulting from the greater-than-normal closeness of my family's home to the house owned by the applicants. Specifically, I would ask that bed and breakfast guests be required to drive onto the premises on its east side, park their vehicles along the lot line nearest ?lr. Nine's generous side yard, and enter the bed and breakfast house through any of the three doors that face away from my family's home. Should the Zoning Board see fit to grant this Special exception permit, I believe that this alternative site design will greatly reduce my family!s loss of our rights of quiet enjoyment without affecting the applicants' enjoyment of and ability to operate their bed and breakfast home. 3 I believe that the criteria for a special exception use permit are fairly straightforward. From New York Town Law, Section 267, Zoning and Planning, (from McKinney's Consolidated Laws of New York), I quote: "Granting of a special exception does not entail making an exception to the ordinance but rather permits certain uses which the ordinance authorizes under special stated conditions, and such exception is allowable when facts and circumstances specified in the ordinance are found to exist." If the conditions are met for the special exception, and that (I am now quoting from the Town of Southold Application for Special Exception, Paragraph B) "the approval of this exception would be in harmony with the intent and purpose of said zoning ordinance (the bed and breakfast use ordinance) and would not be detrimental to property or persons in the neighborhood", the Zoning Board is compelled to grant the special exception use permit, though they are free to mandate conditions that they believe will protect the public welfare. Importantly, the Zoning Board has no power to waive or modify any of the conditions specified in the ordinance. ts-April~ 1986, Host Homes of the North Fork met with the. " Southold Town Boar_d_to ask the Board to consider zon~n~'~de amendments to allow b-'c~d-~aa3d breakfast tou~%~es within the Town of Southold. The'~'9-~c_%.~_~a~.ls of-Hos~ Homes made a strong case for making bed and bre~'~fast homes a permitted use. They provided sig~i,f~dant documen, t~l'4~k9 of laws written elsewhere ~-'~comodate bed a~ break~F~t use, and made recommen~at?~ons to the Code~Ommittee on how tO~..p.lovide the proper.~'~lance between viab~l, ity of a bed and breakfast. operat~'6'~ and the protection of the welfare of its neighbors'- grid the other residents of the Town. While drafting the bed and breakfast law, the Code Committee requested that the members of the Town Board, the Planning Board, and the %oning Board of Appeals submit to them criteria that each thought was important to the structuring of the prospective ordinance. The concerns of the various Board personnel were numerous. Recommendations included: a minimum lot size (20,000 sq. ft.) signage by size and type compliance with NY state building code compliance with Suffolk County Health Department standards limitations of number of guests and length of stay licensing, and renewal of licenses enforcement of zoning compliance preclusion from major subdivisions where law may conflict with covenants and restrictions parking standards and jurisdictions under which the review process would take place. Laws, especially controversial laws, are generally written as compromises, and the surviving specific conditions of the Southold bed and breakfast special exception permit are as follows: 1) not more than three rooms nor six guests is 2) only breakfast inay be served 3) the premises must be owner occupied 4) adequate additional off-street parking must be provided 5) the bed and breakfast use is not allowed in conjunction w~th an accessory apartment (added 3/24/87, L. L. 2-1987) allowed Sign restrictions are addressed in Chapter 100-30, Section C, paragraph 6 If the applicant 1) meets these specific conditions 2) is "in harmony with the intent and purpose of the (bed and breakfast) ordinance and 3) the granting would not be detrimental, to property and persons Jn the neighborhood the Zoning Board must grant the application, though, once again, they are free to specify limiting conditions that they believe will protect the public welfare. Also, once again, the Zoning has no power to waive or modify any of the conditions specified in the ordinance. 2 I believe that the Zoning Board cannot grant the requested special exception use permit for either one of two specific reasons, both related to the owners' occupancy or intent to occupy the property under consideration. It ~s fairly simple to establish that neither Mr. Nine nor Mr. Zahra presently occupies the dwelling for which they seek a special exception bed and breakfast use permit. The co-owners of this house both have long-established homes elsewhere ia Mattituck, [{r. Zahra's on Pike Street and Mr. Nine's on New Suffolk Avenue, where they respectively reside. Neither house seems to be for sale and neither owner seems to be particularly disposed to moving Jato this house. I feel confident, absent new evidence to the contrary, asserting that neither owner intends to occupy this house. This house has all the earmarks of a property purchased for speculation. It is tenant-occupied, and the real estate For Sale sign that was placed on the property more than two years ago remains there still. Mssrs. Zahra and Nine purchased this house for $126,000. June 5, 1986. It was immediately listed for sale at $225,000., and has remained available continuously since on that time at the $225,000. price. Originally, the house was available for sale "as-is"--as it had been purchased by the present owners; vacant for seven years since it was last occupied by Evelyn Reeve. Over their two years of ownership, the owners.have constantly improved the house; they have made serviceable the well, septic system and heating equipment, and they painted the exterior trim. But still they have been unsuccessful in attracting a purchaser. So, what else can they do? I believe, and I feel that it ~s transparent to anyone remotely familiar with this application, that the approval of a bed and breakfast use for this house is solely being sought so that the owners may sell the house at a price higher than it has otherwise been able to command. As they must, Jn section B of their special exception application, the applicants allege that their use would be in harmony with the intent and purpose of the bed and breakfast zoning ordinance (100-30, B, 16) I allege otherwise. If the owners indeed have no intent to occupy this house and operate a bed and breakfast use, then I believe that this special exception use Js no longer--and 2 subordinate to the principal be by law. If this property I---~xrot= fro~ L;,= o~dinal.~= '"alo, use of the dwelling" as it must ~s sold conditioned upon or on the strength of a bed and breakfast permit granted to these applicants, then the protections inherent in the specific ordinance and in zoning law have been grossly perverted in favor of the owners' private gain. When the house Js sold, let the new owners, after establishing occupancy, apply for the special exception use permit for bed and breakfast, should they desire that use for their home. ~-~--4rhe~m. cant~mc, I ~e~ ' p ~M-g--a4k~_icat~on can D~-~-~d. SHORT FORM ORDER INDEX No. 10524 SUPREME CCLqtT - STATE OF NEW YORK I.A.S. PART 25 SUFFOLK COUNTY PRESENT: Hon KENNETH ROHL In the F~tter of the Application of, 198~ ~)TIONDATE 6/16 ADJ. DATES P~DTD 1989 RAYMOND F. NINE, PAMF/A NINE and CHARLES Z~HRA, Petitioners, For a Judgment Pursuant to Article 78 of the -against- SOUIT~OLD .¢CWN BOARD OF APPareLS, Respondent. PLTF' S/PET' S ATIT: WICKHAM, WI~KHAM & BRESSLER, P.C. Main Road - Box 1424 Mattituck, NY 11952 D~'£' S/RESP' S ATTY: JAMES A. SCHONDEB~RE, ESQ. ~'~-5309~ Main Road - Box 1179 Southold, NY 11971 upon the following papers numbered 1 to 11 read o~ this Article 78 pro- c ec~li.nq ';, ! . No~ice of Motion/Order to Show Cause and su _pporting pap~r~' 1-9 .; Notzce of. ~r~s Moti. on' and supporting papers ; Answering Affidavits and supportzng papers i - Replying Affidavits and su ..uporting Pa. pars " ; Othe~ ; (a~_a~e.=_~eaFi_a§_ee~ase~_i~_s~ppe~e_a~_el~s.e~.~-~e-meBieR) it is, ORDERED that this Article 78 proceeding to reverse and annul respondent's April 13, 1989 resolution which denied petitioners' ap- lication fQr a special exception, is respectfully referred to the Hon. Harry Richard Brown, before whom a related Article 78 proceeding (index No. 89-872) is pending. J.S.C. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK In the Matter of the Application of RAYMOND F. NINE and CHARLES ZAHRA, AFFIRMATION Petitioners, For a Judgment Pursuant to Index No. 89-872 Article 78 of the CPLR lAS Justice Brown -against- SOUTHOLD TOWN BOARD OF APPEALS, Respondent. ............................................. X TO THE SUPREME COURT OF NEW YORK, SUFFOLK COUNTY: Respondent, by its attorney, James A. Schondebare, respectfully answers the allegations of the petition as follows: 1. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in pargaraphs 2, 3 and 7 of the petition. 2. Deny the allegations contained in paragraph 6 of the allegation. 3. With respect to paragraph 4 of the petition, admit respondent applied for a special exception under Appeal number 3785. A public hearing was held thereon on October 26, 1988, and except as admitted, denies the allegations contained in paragraph 4. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 4. The Board of Zoning Appeals is without power to waive or vary the conditions contained in a Special Exception Use. The petitioners herein did not meet the criteria set forth in section 100-30(B)116). AS AND FOR A SECOND AFFIRMATIVE DEFENSE 5. The petitioner's application is contrary to the legislative intent in enacting the local law which permits the special exception applied for in the instant case, AS AND FOR A THIRD AFFIRMATIVE DEFENSE 6. The instant action is moot as a rehearing was applied for and granted by the Southold Town Board of Appeals. subsequent to the December 8. 1988 decision. The December 8. 1988 decision will be superceded by the Boards decision after the close of the rehearing, WHEREFORE. the Respondent respectfully requests that the within petition be denied in its entirety. Dated: April 4, 1989 Southold. New York Yours etc.. James A. Schondebare Attorney for Respondent Southold Town Hall 53095 Main Road Southold. New York 11971 To: Wickham, Wickham & Bressler Main Road - P.O. Box 1424 Mattituck. New York 11952 VERIFICATION STATE OF NEW YORK) SS; COUNTY OF SUFFOLK) Gerard P. Goehrincjer, Chairman of the Southold Town Zoning Board of Appeals. being duly sworn, deposes and says: I am the Chairman of the Board of Appeals of the Town of Southold, the respondent in the within action; that I have read the foregoing Answer and know the contents thereof; that the same is true to my knowledge, except as to the matters therein stated to be alleged on information and belief, and that, as to those matters, I believe them to be true. Sworn to before me this day of April. 1989. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK In the Matter of the Application ~ RAYMOND F, NINE and CHARLES ZAHRA. VERIFIED AFFIDAVIT Petitioners. -against- Index No. 89-872 SOUTHOLD TOWN BOARD OF APPEALS. Respondent. STATE OF NEW YORK) ss: COUNTY OF SUFFOLK) Gerard P. Goehringer. being duly sworn, deposes and states as follows: 1. I am the Chairman of the Southold Town Board of Appeals and. as such. am fully familiar with the facts stated herein. 2. The petitioners herein applied to the Southold Town Board of Appeals Ihereinafter "Board") for a Special Exception pursuant to Southold Town Code Section 100-30.B(16) to establish a "bed and breakfast" use. A copy of said application is attached hereto as Exhibit "A". 3. At the time of the hearing and decision on this appeal, section 100-30.BI16) read as follows: ~16) The renting of not more than three 13) rooms in an owner- occupied dwelling for lodging and serving of breakfast to not more than six 16) casual and transient roomers, provi- ded that the renting of such rooms f. or such purpose is clearly incidental and subordinate to the principal use of the dwelling, subject to the following requirements: .(a) That adequate off-street parking spaces shall be pro- vided for such rented rooms in addition to parking spaces for the use of the family of the owner. lb) No accessory apartment, as authorized by Section 100-30BI15) hereof, shall be permitted in or on premises for which a bed and breakfast facility is authorized or exists. 4. The granting of the special exception would require the applicant to meet the criteria contained in the ordinance. In the instant case dwelling was not owner-occupied. The petitioners assert that there was an agreement for Pamela A. Nine to acquire an ownership interest from peti- tioners and then operate the bed and breakfast. A copy of said agreement is attached hereto as Exhibit "B". 5. The agreement states clearly that it is being entered into solely for Pamela A. Nine to operate a bed and breakfast. The conveyance to Pamela A. Nine is conditioned upon obtaining special exception approval (see para- graph 2 of said agreement). If purchaser fails to operate a bed and break- fast. she is required to reconvey her interest to seller (see paragraph 7 of said agreement). 6. Section 100-30.B(16). in addition to requiring owner-occupied dwelling, also required said bed and breakfast use to be "clearly incidental and subordinate to the principal use of the dwelling..." In the instant case. it is clear Pamela A. Nine's occupancy is solely to allow the bed and breakfast under the owner-occupied requirement. Again. petitioners fail to meet the requirements of the special exception use as such use is not clearly incidental and subordinate to the principal use. 7. Subsequent to the Board's decision on this matter and the institu- tion of this Article 78 proceeding. Chapter 100 (Zoning) was amended. Former section 100-30.B(16) was renumbered 100-31.B(15) and adopted verbatum except subsection (b). prohibiting accessory apartments, was deleted. In addition. a new Article XXVI was adopted entitled Special Exception Uses. Said article establishes the criteria under which special exception applications may be granted. A copy of Article XXVI is attached hereto as Exhibit C. 8. The Board was without power to grant the special exception in this matter where the applicant/petitioners failed to meet the requirements of the ordinance. 9. Petitioner applied for and was granted a rehearing in this matter. The hearing has been opened and adjourned until April 13. 1989. 10. The decision on the rehearing will supercede the December 8. 1988 decision, rendering this action moot. WHEREFORE. it is respectfully requested that the within petition be denied. Go~ ' Sworn to before me this day of April. 1989. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK X In the Matter of the Application of RAYMOND F. NINE and CHARLES ZAHRA. Petitioners. For a Judgment Pursuant to Article 78 of the CPLR AFFIRMATION Index No. 89-872 lAS Jsutice Brown -against- SOUTHOLD TOWN BOARD OF APPEALS, Respondent. X TO THE SUPREME COURT OF NEW YORK, SUFFOLK COUNTY: James A. Schondebare, an attorney duly admitted to practice law in the courts of the State of New York, does affirm, under the penalties of perjury, as follows: 1. I am the Town Attorney of the Town of Southold and as such am familiar with the facts and circumstances herein. 2. The instant action seeks review of the Southold Town Board of Appeals determination of December 8. 1988 denying Petitioners application for a special exception to operate a "Bed and Breakfast". 3. On January 6, 1989, Respondent requested a rehearing of the matter by letter. A copy of said letter is attached hereto as Exhibit A. 4. The Board granted the rehearing and informed the Respondent thereof by letter dated February 10. 1989. Said letter attached as Exhibit B. 5. No determination has been made to date. although hearings have been held thereon on March 9. 1989 and March 16. 1989. The Board has adjourned the matter to its next hearing. April 13. 1989. 6. The instant action is moot as the December 8. 1989 decision will be superceded by the Boards decision after rehearing. WHEREFORE. it is respectfully requested the instant proceeding be dismissed as moot. To: Wickham. Wickham & Bressler Main Road - P.O. Box 1424 Mattituck. NY 11952 J~n~es A. Schondebare Attorney for Respondent Town Hall P.O. Box 1179 Southold. NY 11971 RICHARD G. WARD Chairman GEORGE RITCHIE LATI-IAM, JR. BENNETT ORLOWSKI, JR. 'WILLIAM J. CREMERS t~ENNETYI L. EDWARDS Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-3136 Telephone (516) 765-1938 July II, 1996 Robert H. Whelan, P.E. P.O. Box 590 Mattituck, NY 11952 PLANNING BOARD OFFICE TOWN OF SOUTHOL~ Re: Request for site plan waiver for Charles Zahra 5CTM# 1000-I4t-4-5 Dear Mr. Whelan: The Planning Board has reviewed your letter of june 25th, the accompanying survey dated November 29, 1990 and the building department's file for Building Permit # 15428-Z (which expired). Your letter requests a waiver for the proposed change of the first floor use from a restaurant to a C I or C2 type use (pursuant to Part 703, Subsections 703,2 and 703,3 of Subtitle S: State Uniform Fire Prevention and Building Code). Some of the uses defined as C I or C2 types of uses are not permitted within the Hamlet Business zone, which is the zoning of the subject property. In order for this Board to respond to your request for a waiver we need to know the specific permitted use to which the first floor would be converted to. Further, a floor plan, showing the square footage and usage of the flOOr space, would be helpful as it will determine the number of parking spaces that would be required by the proposed use. Sincerely, Richard G, Ward Chairman cc:Gary Fish, Building Inspe~or Laury Oowd, Town Attorney p/Gerard P. Goehringher, Chairman, ZBA SUPREME Court, SUFFOLK County Full title of action In the Matter of the Application of Petitioners, For A Judgment Pursuant to Article 78 of the CPLR, against SOUTHOLD TOWN BOARD OF APPEALS, Respondent(s) lndex No. Date Purchased REQUEST FOR JUDICIAL INTERVENTION For Clerk Only Name of assigned judg~ Date of assignment [] Issue joined (date ............................................................ ) (check if applicable) [] Bill of particulars served (check if applicable) In the City of New York only: [] The City of New York is a party to this action. [] The Transit Authority (or MABSTOA) is a party to this action. [] Request for preliminary conference [] Note of issue and. or certificate of readiness [] Notice of motion (return date ................................................................ ) Relief sought [] Order to show cause (Clerk will enter return date ............................................................. ) Re ef sought ........................................................... NATURE OF JUDICIAL INTERVENTION (check) [] Other ex parte application ~ Notice of petition (return date .EohL-'LI~L~...2,4., ~.9.89 ...... ) Relief sought ..&Xl-qLL~..& s~t..as±d~_...Resp~0_t.,..s ......... d~te~tion..of .December...8.,...19.88...denying ...... Petitioner .!.s ..special.. e×ception., application .. J~ Notice of medical malpractice action f-I Notice of dental malpractice action [] Statement of net worth C] Writ of habeas corpus [] Other (specify): ............................................................................................ NATURE OF ACTION OR Tort [] Motor vehicle [] Medical malpractice [] Dental malpractice [] Seaman [] Airline [] Other tort. including but not limited to personal injury. property damage, slander or libel (specify): [] Matrimonial (contested) [] Matrimonial (uncontested) PROCEEDING (check) Special Proceedings [] Tax certiorari [] Condemnation [] Foreclosure [] Incompetency or conservatorship Other special proceeding, including but not limited to: [] Article 75 (arbitration) [] Article 77 (express trusts) ~ Article 78 [] Other (specify): ...................................................................................... OTHER ACTION [] Contract [] Other (specify): .................................................................................................. Instructions: Attach rider sheets if necessary to provide required information. If any party is appearing pro se {without an attorney}, the required information concerning such party is to be entered in the space provided for attorneys. Attorney(s) for plaintiff(s)/petitioner(s) Name WICKHAM, WICKHAM & BRESSLER, P.C. Address MAIN ROAD - P.O. Box 1424 MATriX, NEW YORK 11952 Phone 516-298-8353 Attorney(s) ~rde~ndant(s)/respondent(s) Name Address Phone Name of insurance carriers (if applicable and available) RELATED CASES (if none, write "NONE" below) Title index # Court Nature of relationship I affirm under penalty of perjury that, to my knowledge, other than as noted above, there are and have been no related actions or proceedings, nor has a request for judical interventic WICKHAM, WICK~AM & BRESSLER, P.C. Attorney(s) for Petitioners Office & P.O, Address Main Road - P.O. Box 1424 Mattituck, New York 11952 (516) 298-8353 i°ceeding' SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK In the Matter of the Application of RAYMOND F. NINE and CHARLES ZAHRA, Petitioners, For a Judgment Pursuant to Article 78 of the CPLR -against- SOUTHOLD TOWN BOARD OF APPEALS, Respondent. SIRS: JAN DB9 INDEX NO. NOTICE OF PETITION PLEASE TAKE NOTICE that upon the annexed petition of the petitioners, Raymond F. Nine and Charles Zahra, verified on the 12th day of January, 1989, and the exhibits annexed thereto, and upon all the proceedings had before the respondent Southold Town Board of Appeals, in the matter of appeal number 3785SE an application will be made at an IAS Motion Part to be held at the Courthouse on Griffing Avenue, Riverhead, New York on the 24th day of February, 1989, at 9:30 o'clock in the forenoon, or as soon thereafter as counsel may be heard, why judgment should not be made and entered pursuant to CPLR Article 78 as follows: (1) annulling and setting aside Respondent's determination of December 8, 1988 denying Petitioner's application (Appeal No. 3785SE) for a special exception for permission to establish "Bed and Breakfast Use" in an "A" Agricultural and Residential district on the grounds that such denial was contrary to law, an abuse of discretion, arbitrary and capricious and not supported by substantial evidence on the record (2) granting the Petitioner such other and further relief as to this Court may seem just and proper. Dated: January 12, 1989 Mattituck, New York Yours etc, WICKHAM, WICKHAM & BRESSLER, P.C. Attorneys for Petitioners Main Road - P.O. Box 1424 Mattituck, New York 11952 (516) 298-8353 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK In the Matter of the Application of RAYMOND F. NINE and CHARLES ZAHRA, Petitioners, For a Judgment Pursuant to Article 78 of the CPLR -against- SOUTHOLD TOWN BOARD OF APPEALS, Respondent. TO THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY: INDEX NO. VERIFIED PETITION SUFFOLK The Petition of Raymond F. Nine and Charles Zahra respectfully shows: 1. Respondent at all times mentioned was and is the Southold Town Board of Appeals, duly established pursuant to Town Law Section 267 of which board Gerard P. Geoghringer is and was at all times chairman. 2. Petitioners are the owners of real property with a house thereon situated at New Suffolk Avenue, Mattituck, Suffolk County, New York, more fully described in Schedule A attached hereto. 3. In October, 1988, Petitioners entered into an agreement with Pamela A. Nine, whereby she was to acquire from petitioner, Raymond F. Nine, an undivided one-quarter interest in such premises, and reside and operate a "bed and breakfast" therein. Copy of Agreement annexed as Exhibit A. Petitioner Charles Zahra consented to such arrangement, copy of consent annexed as Exhibit B. The agreement was contingent upon Petitioners obtaining a Special exception to operate a bed and breakfast on the premises pursuant to Southold Town Code Section 100-30 (S) (16) . 4. Petitioner, duly applied to Respondent for the special exception under Appeal number 3785. A public hearing was held thereon on October 16, 1988. 5. By decision dated December 8, 1988, the Respondent denied the application, copy annexed as Exhibit C. 6. The aforesaid determination of Respondent was an abuse of discretion, arbitrary and capricious, contrary to law, and not supported by substantial evidence on the record in that: (a) The Respondent failed to give proper legal consideration to the status of Pamela Nine as contract vendee, stating that she did not have the requisite direct interest in the property. It is well established that a contract vendee has a recognizable equitable interest in real property for zoning purposes. (b) The Respondent failed to properly consider the contract of sale as creating an interest as contract vendee, but, rather considered only the permission of the co-owner and Petitioner, Charles Zahra. (c) The Respondent erroneously relied on a failure of Pamela Nine to testify when such has been made. herein as Dated: Mattituck, January 12, testimony was irrelevant in light of her contracted obligation. (d) Respondent failed to grant the relief sought conditioned upon consum~mnation of the contract transaction since Petitioners met the tests set forth in the ordinance to wit: owner occupation and, not more than 3 rooms, not more than 6 roomers and adequate parking. No prior application for the relief sought herein Petitioners have no other adequate remedy at law. WHEREFORE, Petitioners pray that judgment be granted follows: 1) Reversing the determination made by Respondent as aforesaid; 2) Granting the relief sought by Petitioners in the aforesaid appeal; 3) Granting Petitioner such other and furthe relief as is just and proper. New York 1989 WICKHA~, WICKHAM & BRESSLER, P.C. Attorneys for Petitioners Main Road - P.O. Box 1424 Mattituck, New York 11952 (516) 298-8353 SCHEDULE A ALL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being at Mattituck, Town of Southold, County of Suffolk and State of New York, bounded and described as follows: BEGINNING at a point on the northerly side of New Suffolk Avenue distant easterly 572.20 feet as measured along New Suffolk Avenue from the easterly side of Main Road (NYS Route 25); running THENCE North 2° 18' 40" East, 200 feet; THENCE South 86° 09' 00" East, 113.00 feet; THENCE South 2° 18' 40" West, 200.00 feet to the northerly side of New Suffolk Avenue; THENCE North 86° 09' 00" West, 113.0 feet to the point or place of BEGINNING. BEING and intended to be the same premises described in Liber 5126, Page 181 conveyed to Evelyn K. Reeve who died 1/18/86, testate, a resident of Suffolk County. Letters testamentary dated 2/20/86 issued to William Wickham, as Executor. District 1000 Section 114.00 Block 11.00 Lot 020.000 AGREEMENT FOR OPERATION OF BED AND BREAKFAST AGREEMENT made this 12th day of October, 1988, between RAYMOND F. NINE, residing at no# New Suffolk Avenue, Mattituck, New York, as Seller, and PAMELA A. NINE, residing at no# New Suffolk Avenue, Mattituck, New York, as Purchaser, WHEREAS, Seller is the owner of a one-half interest in the premises known as the "Reeve House" at 635 New Suffolk Avenue, Mattituck, New York (SCTM#1000-114-11-20), and WHEREAS, Purchaser is interested in acquiring an interest in the premises and operating a bed and breakfast establishment at the premises, and WHEREAS, the other owner of the premises, CHARLES J. ZAHRA, has consented to the agreement between Seller and Purchaser herein; THEREFORE, in consideration of the agreements between the parties made in this agreement, the parties agree as follows: 1. Seller shall pursue an approval for a bed and breakfast establishment at the premises from the Southold Town Zoning Board of Appeals and, if required, the Southold Town Building Department. 2. In the event such approval is obtained within six (6) months from the date hereof, Seller will convey to Purchaser by a Bargain and Sale Deed with covenant against Grantor's Acts an undivided one-quarter interest in the premises. Such deed shall be delivered and the premises conveyed subject only to: (a) Zoning regulations and ordinances. (b) Any state of facts an accurate survey may show, provided same does not render title unmarketable. (c) Covenants and restrictions of record, if any, affecting said premises, provided same are not violated by existing structures. 3. Purchaser agrees to establish and operate a bed and breakfast establishment in accordance with the Southold Town Zoning Ordinance and the approvals therefor upon acceptance of the deed. XHI IT A- 4. Seller agrees to bear the cost of cosmetic improvements to the interior of the premises, including painting as necessary. Purchaser and Seller shall share equally the cost of interior and exterior clean-up. Any necessary capital improvements shall be borne by the owners of the premises in proportion to their ownership interests. 5. In the event Seller and Charles J. Zahra decide to sell the premises, they shall furnish Purchaser with 60 days written notice. Purchaser shall thereupon terminate the bed and breakfast operation and shall also enter into the contract of sale on the terms approved by Seller and Charles J. Zahra. 6. Ail expenses and costs, and all income and profits from the operation of the bed and breakfast shall belong to the owners of the premises in proportion to their ownership interest. The cost of the taxes, insurance and maintenance on the premises shall be included in the foregoing. 7. In the event Purchaser fails to operate a bed and breakfast establishment in accordance with this agreement, she shall upon demand execute and deliver a deed reconveying her interest to Seller. The provisions of this agreement shall survive delivery of the deed. In Witness Whereof, the parties have signed this agreement. Raymond F. Nine Pamela A. Nine 53-nineb&b CONSENT TO AGREEMENT FOR OPERATION OF BED AND BREAKFAST CHARLES J. ZAHRA, residing at 1830 Pike Street, Mattituck, New York, as the owner of one-half undivided interest in the premises known as the "Reeve House" at 635 New Suffolk Avenue, Mattituck, New York, hereby consen= to the terms and conditions of the Agreement for Operation of Bed and Breakfast between Raymond F. Niae, as Seller, and Pamela A. Nine, as Purchaser, dated October 12, 1988, with respect to the premises. Dated: October 12, 1988 Charles ~ ~ahra " th Id To B d lApp Is ou o wn oar o ea ~ TELEPHONE (516) 765-1809 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER. CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, .IR. JOSEPH H. SAWlCKI JAMES DINIZIO, JR. ACTION OF THE BOARD OF APPEALS Appl. No. 3785: Application of RAYMOND NINE and CHARLES ZAHRA for a Special Exception to the Zoning Ordinance, Article III, Section 100-30B(16) for permission to establish "Bed and Breakfast Use," "an owner-occupied building, other than a hotel, where lodging and breakfast is provided for not more than six casual, transient roomers, and renting of not more than three rooms. Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; County Tax Map District 1000, Section 114, Block 11, Lot 20. WHEREAS, a public hearing was held on October 26, 1988 in the Matter of the Application of RAYMOND NINE and CHARLES ZAHRA under Appl. No. 3785; and WHEREAS, at said hearing all those-who desired to be heard were heard and their testimony recorded; and WHEREAS, the Board has carefully considered all testimony and documentation submitted concerning this application; and WHEREAS, the Board Members have personally viewed and are familiar with the premises in question, its present zoning, and the surrounding areas; and WHEREAS, the Board made the following findings of fact: 1. By this Application, applicants request a Special Exception for a "Bed and Breakfast" Establishment, for the rental of three bedrooms for lodging and serving of breakfast to not more than six casual and transient roomers, which will be incidental and subordinate to the principal single-family use of the existing dwelling. 2. The premises in question is located in the "A" Residential and Agricultural Zoning District, contains a total , XHtBIT C Page'2 - Appeal No. 3785 Matter of RAYMOND NINE and CHARLES ZAHRA Decision Rendered December 8, 1988 area of 22,992 sq. ft. with frontage along the north side of New Suffolk Avenue 113.0 feet, and by deed dated June 5, 1986 at Liber 10062 page 225, the premises was conveyed by William Wickham, as Executor of the Estate of Evelyn K. Reeve, to the Raymond F. Nine and Charles J. Zahra. 3. The subject premises is identified on the Suffolk County Tax Maps as District 1000, Section 114, Block 11, Lot 20, and is improved with a single-family, 2-1/2 story frame dwelling, with setbacks of 54+- feet from the front property line along New Suffolk Avenue, 31+- feet from the westerly side property line along lands now of DeReeder, 40+- feet from the easterly side property line along lands now of Nine, and 108+- feet from the northerly rear property line along lands now or formerly of Wilsberg (see copy of survey dated January 14, 1986, prepared by Roderick Van Tuyl, P.C.). 4. Chapter 100, Article III, Section 100-30B of the Zoning Code provides as follows: ... B. Uses permitted by special exception by the Board of Appeals. The following use(s) are permitted by a special exception by the Board of Appeals, as hereinafter provided, and, except for the uses set forth in subsection (16) hereof, are subject to site plan approval by the Planning Board in accordance with Article XIII hereof: (16) The renting of not more than three (3) rooms in an owner occupied dwelling for~lodging and serving of breakfast to not more than six casual and transient roomers, provided that the renting of such rooms for such purpose is clearly incidental and subordinate to the principal use of the dwelling, subject to the following requirements: (a) That adequate off-street parking spaces shall be provided for such rented rooms in addition to parking spaces for the use of the family of the owner... 5. The record shows that both owners do not and will not reside within the dwelling, and that the individual who will reside within and occupy the residence and proposed Bed-and-Breakfast use is being assigned permission to do the same, rather than having a direct interest as a property owner as required by the statute. Further, no testimony has been furnished by the proposed occupant of the premises under oath, as an applicant, or otherwise for the record. Page 3 - Appl. No. 3785 Matter of RAYMOND NINE and CHARLES ZAHI~A Decision Rendered December 8, 1988 6. In considering this application, the Board finds and determines that it is without authority to grant a Special Exception use where the project does not meet all of the requirements of the Zoning Code {Knadle v. ZBA of Huntington, 121 AD2d 447 (1986}; Roginski v. Rose, et al., 63 NY2d 735 (1984). Accordingly, on motion by Mr. Grigonis, seconded by Mr. Sawicki, it was RESOLVED, to DENY WITHOUT PREJUDICE the Application for a Special Exception as applied under File No. 3785 in the Matter of RAYMOND NINE and CHARLES ZAHRA. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis, Sawicki and Dinizio. (Absent was: Member Doyen, due to serious family illness.) This resolution was duly adopted. lk GERARD p. GOEHRINGER, CHAIRMAN I, the undersigned, an attorney admitted to practice in the courts of New York State, [] c~,oo certify that the within By^,on~v has been compared by me with the original and found to be a true and complete copy. [] A.on~s state that I am the attorney(s) of record for in the within action; I have read thc foregoing and know thc contents tbereof; the same is truc to my own knowledge, except as to thc matters therein statad to be alleged on information and belief, and as to those matters I believe it to be true. The reason this verification is made by mc and not by The grounds of my belief as to all matters not stated upon my own knowledge are as follows: 1 affirm that the foregoing statements are true, under the penalties of perjury. Dated: STATE OF NEW YORK, COUNTY OF ~'..~'I:Y~_.~'~ ss.: ,K Cl'~.rlo.~ ?.nahr~ nv~cl .r~t~aol~ Po ~J.l~o being sworn, say: ~1I~ '~ are ~ho T.~'c.t. tS.c~l~o..r~ ~ [~,,f,catio, in the within action~?ave read the foregoing I~-at~.tj. Ot~ ] and know the contents thereof; the same is true to my own knowledge, except as to ~ [] coroor*~, the matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true. a the of ~ a corporation and a party in the within action; I have read the foregoing o and know thc 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 believc it to be true. This verification is made by me because thc above party is a corporation and I am an officer thereof. Thc grounds of my belief as to all matters not stated upon my own knowledge are as follows'./9 __ .,**:,,.. voe, ................... STATE O~ NEW YORK, COUNTY OE ~.: (ff ~ ~ ~ ¢~ -- ~¢ ~¢~ ~m~, ~r~ ~ ~ ~.) I, being sworn, say: 1 am not a party to the action, am over 18 years of age and reside at On 19 I served the within by depositing a true copy thereof in a post-paid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State, addressed to each of the following p~rsons at the last known address set forth after each name: by delivering a true copy thereof personally to each person named below at the address indicated. I knew each person served to be the person mentioned and described in said papers as aparty therein: Sworn to bcforc mc on 19 Sir>Please take notice that the within is a (certified) !rue copy ora duly entered in the office of the clerk of the within ,lamed court on 19 Dated, WICKHAM, WICKHAM & BRE$$LER, P.C. Office and Post Office Address MAIN ROAD, P,O. BOX 1424 [0 Attorney(s) for ~ir:-Please take notice that an order >f which the within is a true copy will be presented 'or settlement to the Hon. )ne of the judges of the within named Court, at m 19 at M. Dated, Yours, etc., ~VlCKHAM, WICKHAM & BRESSI. ER, 4ttorneys for Office and Post Office Address MAIN ROAD, P.O. BOX 1424 Xttorney(s) for Index No. Year 19 In the ;~tter of the D_~pplication 6f .gA~0f~D F..~T~N~ and CHARr.P~q ZAHRA~ Petiti~mrs, For a Judgment Pursuant to Article 78 of ~he CPLR -agai~t- SEZrEHO[D T~N BOARD OF ~, WICKHAM, WICKHAM ,~ BRESSLER, P.C. Attorneys for [~tiono3~s OJ~ce and Post Office Address, Telephone MAIN ROAD, P.O. BOX 1424 To Attorney(s) for CC: Service of a copy of the within Dated, is hereby admitted. Attorney(s) for Town Board Town Attorney Chief of Police Super, of Hiahways Crfffing ~, S'outhwick Ins. William F, Mullen, Jr, Building Dept, Appeals Board APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWlCKI JAMES DINIZIO, JR. Southold Town Board of Appeals MAIN ROAD- BTATE ROAD 2.5 ~OUT. tHOLD, L,I., N.Y. TELEPHONE (516) 765-1809 TRANSCRIPT OF PUBLIC HEARING SOUTHOLD TOWN BOARD OF APPEALS MARCH 16, 1989 REGULAR MEETING (CONTINUED) Appl. No. 3785SE - Matter of RAYMOND NINE and CHARLES ZAHRA. Special Exception to the Zoning Ordinance, Article III, Section 100-30B(16) for permission to establish "Bed and Breakfast Use," "an owner-occupied building, other than a hotel, where lodging and breakfast is provided for not more than six casual, transient roomers, and renting of not more than three rooms. Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; County Tax Map District 1000, Section 114, Block 11, Lot 20. Present were: Chairman Gerard P. Goehringer, Member Charles Grigonis, Jr. and Member James Dinizio, Jr. Also present were: Board Assistant Linda Kowalski, and approximately 10 persons in the audience. (Absent were: Joseph H. Sawicki {out-of-state} and Member Doyen of Fishers Island - {family bereavement}.) 7:51 p.m. The Chairman opened (reconvened) the public hearing. (For the record, it is noted that the previous hearings on this application were held on October 26, 1988, and March 9, 1989.) CHAIRMAN GOEHRINGER: I'll ask Mr. Bressler if there is anything he would like to say before we start with the -- ERIC J. BRESSLER, ESQ.: Not at this time. CHAIRMAN: Thank you. Mr. DeReeder, you are here with your attorney? JOHlq DEREEDER: Yes, Sir, I am. CHAIRMAN: Who would like to speak? MR. DEREEDER: I would like to speak first if possible. I can't promise I'm going to be brief. That's not one of my strong ones. I'm a terrible speaker; I write everything out long hand and type it up. It takes forever but I think we'll get from one end to the other. I'll keep at it. Page 2 - Transcript of Hearing Appl. No. 3785SE - NINE & ZAHRA ZBA March 16, 1989 Regular Meeting MR. DEREEDER, continued: As a start, I will ask the Board to once again refer to Mr. Bressler's exhibits. These are Polaroid pictures, two of which include~a substantial stockade fence. I can understand the considerable gle~?~hlch Mr. Bressler s clients erected their fence. It's maximum height, its finished side in and has no gate, but I'd like to point out in the interest of accurac~ the word' safety contrary to Mr. Bressler's assertion was not used by me at any time during my co~ents to the Board on this matter. I am sure of Mr. Bresster's ability to read as he was of min~last week when he attempted to deny me opportunity to consult Counsel before speaking here. Should you have chosen to employ his reading ~,'~l Mr. Bressler could have examined the transcripts of last October'~ hearing and avoided placing words in my mouth that never belonged there. Instead of asserting that the fence provides such safety, as if these gentlemen had any general regard for the safety or well-being of my family, Mr. Bressler might have added to his credibility instead of eroding it, acknowledged that what this ~c~__ provides is a ~%~'~-3~Df satisfaction to his otherwise frustrated clients. Mr. Nine and Mr. Zahra intended to teach me a lesson with this fence. I hope it is a lesson that neither of them soon forgets. They should cherish their small satisfaction for I'm determined it will be the full measure of their satisfaction regarding this application. The fence is objectionable to say the least--and its erection underscores just how anxious Mr. Nine and Mr. Zahra are, to be the good Deighbors that the owner-occupancy requirement in the law is intended to ~nsure. -~ The Zoning Board's first denial of this application is not based.as Mr. Bressler asserted in his letter to the Board of January 6th and / again at the hearing las~ week; 5~mply, "on~rroneous reading of the agreement put in evidence and the law applicable thereto," from Mr. Bressler's letter. The denial was made because the Board correctly found and determined last December, and I'm quoting from the denial, "that this Board is without authority to grant a Special Exception use when the project does not meet all of the applicable requirements of the Zoning Code." Nothing within this application has changed to allow the Zoning Board to find and determine different now. Yes, Mr. Bressler is now personally stepping in on behalf of his applicants, and now Pamela Nine has been formally presented to the Zoning Board. And let's not forget the Article 78 Proceeding that has been filed by Mr. Bressler on behalf of his clients in Supreme Court. But the important facts upon which the previous denial was based remain the same as at the last hearing, and they remain clear. Page 3 - Hearing Transcript Matter of NINE & ZAHRA - Appl. No. March 16, 1989 ZBA Regular Meeting 3785 MR. DEREEDER (continued): This property, by any rational standards remains non-owner-occupied. And its use as a Bed and Breakfast under its present ownership, whoever that happens to be, is clearly neither~ incidental, nor subordinate. Mr. Bressler last week addressed only one small part of the deficiency of this application when he attempted to demonstrate that Pamela Nine is entitled to operate a Bed and Breakfast on this property because she is a contract vendee.~%~c~c~t~Mr. Bressler to come charging in to last week's hearing, full of landmark~ precedents, overwhelming arguments and irrefutable logic. We all know that he's very good at this sort of thing, and frankly, I half-feared that he _._~was going to be so formidable that I might take a pretty good Hashing. ~I shouldn't have worried. Instead of landmark~ precedents, Mr. Bressler focused nearly as much of his Dnergy last week trying to prevent me from speaking; ~he did st~rring his client's ~.~ case. And instead of overwhelming arguments in his clients' favor, he ---3sidestepped the~e~c~l T% ~this application and at the heart of its previous denial. Instead of irrefutable logic, Mr. Bressler presented the Board with three Polaroid pictures of the fence. And then he presented Pamela Nine. The Board learned through examination and in giving of testimony, that Pamela Nine is 21 years old, lives with her parents and works in the family card store. She seems like a very nice girl. She likes to cook; she knows how to clean and she thinks she would do a good job running a Bed and Breakfast. She agrees with Mr. Bressler that operating a Bed and Breakfast will allow her to move out on her own. Mr. Bressler's line of questionning al~o disclosed that she is the --~ same Pamela Nine, who is benefitted by the ~3reement to operate a Bed and Breakfast, made part of the Board's record I~C October; and that her father, a one-half owner, will execute a deed to her, in the event that this Board grants a Bed and Breakfast permit. On questionning from the Board, it was learned that she is the same Pamela Nine, who will, under that same agreement forfeit her rights so-called owner if either Number One, the real owner's decide to sell, or Number Two, she fails to operate a Bed and Breakfast on the premises. Perhaps Mr. Bressler has demonstrated to this Board's satisfaction that Pamela Nine has a legitimate interest in this house. As they have themselves presented the facts; however, neither Charles Zahra nor Raymond Nine occupies, nor intends to occupy these premises which is a clear requirement of the Zoning Ordinance. Page 4 - Transcript of Hearing Matter of NINE & ZAHRA - Appl. No. March 16, 1989 ZBA Regular Meeting 3785 MR. DEREEDER (continued): If Mr. Bressler has convinced you that Pamela Nine is an owner of some kind, and now that there are three owners of the property, by extension of the application before you, you are being asked to place your ability to control any use in which owner-occupancy is a requirement in terrible, irrevocable jeopardy. Let's say that instead of three persons, ten persons now own this house. All of whom live elsewhere. Let's say they own four or five houses all around Southold Town. They invite a new class of partner into their partnership. Not as operators per se who might be construed as employees but as partners. Maybe these invited partners have to give up their share of ownership should they fail to operate a Bed and Breakfast at the satisfaction of the majority. Maybe they don't. Maybe these invited partners have to give up their ownership if the majority decides to sell. Maybe they don't. And maybe these invited partners are all worthy, hard-working, local young people who are frustrated that at 21 years old, they can't buy houses of their own and may be faced with having to live at home. There are rational, healthy purposes for the requirement for owner-occupancy in zoning ordinances. This requirement is a well defined option available to Towns to pursue legitimate zoning goals. legally allows some citizens to approve financial benefits that are withheld from others. This is clearly the case in both the Accessory Apartment uses and the Bed and Breakfast uses in residential zones in Southold Town. It If the Zoning Board wishes to set this dangerous precedent by granting the Special Exception use to a partnership, the decision this Board must make lies at the end of a compellingly simple riddle. How many of the owners of a property must live there in order to meet the owner-occupancy requirement of the law? Simple answer: All of them. I see no room for compromise. More important, however, our present Town Attorney, who was on the Code Committee that drafted this law, sees no room for compromise either. I submit to you part of Mr. Schondebare's letter to this Board dated appropriately Pearl Harbor Day 1988, which I quote: "In order for this application to be approved, Mr. Zahra and Mr. Nine will have to state under oath that they both reside on the premises. As they have both listed their addresses as some place else, I fail to see how they can now state otherwise." The first denial of this application, received and filed by the Town Clerk on December 13, 1988, quotes the actual zoning ordinance. The ordinance specifically provides for "the renting of not more than three rooms in an owner-occupied dwelling for lodging and serving of breakfast and not more than six casual and transient roomers, provided that the renting of such rooms is clearly incidental and subordinate to the principal use of the dwelling." Page 5 - Hearing Transcript Matter of NINE & ZAHRA - Appl. No. March 16, 1989 ZBA Regular Meeting 3785 MR. DEREEDER, continued: Now let's review the document provided to the Board by the applicants upon which his attorney builds his case for owner-occupancy. This is the document under which Mr. Nine transferred to his daughter under carefully set conditions one-half of his one-half interest in the Reeve House. Instead of being called a contract of sale, or anything like that, it boldly titles itself and I quote from the underlined capital letters at the top of its first page: "Agreement for Operation of a Bed and Breakfast." Still confused by the way, even after Mr. Bressler's speech last week, I'm not quite sure that it was determined that this was a valid Contract of Sale at all, or whether Pamela Nine is indeed a contract vendee. I hope that my attorney may be able to clarify that for me in a couple of minutes. But it is revealing that this agreement for operation of a Bed and Breakfast includes the following language: In the event purchaser fails to operate a Bed and Breakfast establishment in accordance with this agreement, she shall upon demand execute and deliver a deed reconveying her inter- est to seller. The provisions of this agreement shall survive delivery of the deed. "That the use is clearly incidental and subordinate to the principal use of the dwelling" is one of only a very few conditions placed upon an applicant seeking a Bed and Breakfast use under Southold Town Law. In view of the extreme severability in Pamela Nine's purported rights of ownership, any Bed and Breakfast use of these premises under present ownership simply is not fully incidental and subordinate to its principal use as an owner-occupied dwelling. Instead this use is clearly anything but incidental and subordinate. Pamela Nine must operate this Bed and Breakfast or have a fragile interest in the property revoked under the same agreement for operation of a Bed and Breakfast that grants her this unusual interest in the first place. As explained to this Board five months ago, and as I have again pointed out tonight, this Board very clearly and very simply does not have the authority to grant this application. Even though Mr. Zahra and Mr. Nine were kind enough again tonight to allow you this new opportunity to consider their case, even though Mr. Bressler may have tenuously placed Pamela Nine in some relation to this application, this property remains owner-occupied for purposes of the Zoning Ordinance only in the imaginations of the applicants and their attorney. Page 6 - Hearing Transcript Matter of NINE & ZAHRA - Appl. No. March 16, 1989 ZBA Regular Meeting 3785 MR. DEREEDER, continued: Furthermore, in light of the document upon which Mr. Bressler has based his arguments regarding owner-occupancy, any finding that this proposed Bed and Breakfast use is clearly incidental and subordinate remains outside the boundaries of any honest argument and beyond the reach of any logical conclusion. Neither Mr. ZahraNor Mr. Nine ~approach~e and my family before making this application; Or at any time before the first hearing in October. After the hearing, I telephoned Ray Nine, whom I considered a good neighbor, if not a ~ose friend, to explain my strong reaction to their surprise appllcatlon~o try to reopen communications between us. Mr. Nine told me he was upset and he couldn't talk to me. I asked him to call me back so he could speak about the hearing after he cooled down. He never called me back, and he hasn't spoken to me since. ~ ~the transcripts of the last hearing, you might recall the following: , . Mr. Nine:~~Q . the driveway~ still goes around, but if there's a problem with that we certainly could do something to interrupt it by We could rectify that. Rectify that so that they wouldn't be able to go around. By nature of a split-rail fence or somethign of that Absolutely. Could put up any type of fence that you'd Mr. Zahra. Mr. Nine. Chairman: nature. Mr. Zahra: like. Mr. Nine: Split rail fence. Trees. Concrete wall. Whatever. Whatever you have to do. In the~~after the hearing, among other comments Mr. Nine and Mr. Zahra directed additional remarks to me about the appropriateness of a concrete wall dividing our properties. This winter the Zahra-Nine fence went up, as you can see from Mr. Bressler's exhibits. The fence between our properties is not split-rail fence. It's 6-1/2 ft. high. It's purposely unfriendly. It's a stockade fence. It's directed wrong-side out and has no gate, and it offsets much of the grace and charm of both our houses. My family will live with that fence as we must because the owners are completely within their rights to keep it there. The Zoning Ordinance cannot regulate mean-spiritedness. My family solace is that the person who appreciates the grace of the Eveyln Reeve House enough to purchase it would likely see the inappropriateness of the fence and remove it. There may be those in this Town who look upon Mr. Zahra and Mr. Nine as local heroes of some kind. And part of that is for a very good reason. Mr. Nine's hard work, generosity, and personal loyalty are legendary around Mattituck. Mr. Zahra has demonstrated Page 7 - Hearing Transcript Matter of NINE & ZAHRA - Appl. No. 3785 March 16, 1989 ZBA Regular Meeting MR. DEREEDER, continued: to the joy of many that our governmental process while imperfect occasionally can be remedied in favor of a righteous citizen. When the Zoning Board finds once again against this application, as it must, hundreds of local citizens and at least one newspaper will be eagerly looking forward to Mr. Zahra's next crusade against municipal oppression. And probably at least as many will be wondering how Mr. Nine came to be involved in all of this. I will be watching as well and participating, if need be. If Mr. Zahra and Mr. Nine had shown my family the slightest consideration, or even given me the courtesy of a phone call at any time during this process, we all might have been able to avoid this entire ugly mess, but they've chosen instead to make me their adversary, and I will be as worthy an opponent as I could have been their ally. These gentlemen have ~- ly misjudged me. I can be sympathetic to and accommodating of other people's needs more than most people, and I will staunchly defend anyone's property rights, even Mr. Zahra's and Mr. Nine's, but I will not be b~lied by tough talk or stockade fences. And I become encouraged not cow~when someone begins spending his reputation cheaply because he perceives it to be invincable. I will continue to ~ assert my views and vigorously defend my rights so long as either Mr. Zahra or Mr. Nine takes the slightest pleasure in compromising my family's lifestyle or uses the faintest indication that they would attempt to run rough_,shod over our rights to the quiet enjoyment of our home. Mr. Nine owes it to me and to himself to examine the supposed facts as he believes them about our properties and my business affairs, upon which he seems to justify a large measure of personal resentment towards me. They are simply not true. He should also know that I would like to try to become neighbors with him once again, based on the walls of trust and mutual respect we had shared to some degree before all this began. Should they ever wish to discuss this matter further with me, out of the public forum, I invite Mr. Zahra and Mr. Nine to meet with me in my home. I can only believe that through honest communication between us, both my family's concerns and Mr. Zahra's and Mr. Nine's economic needs can be met. Thank you for your time. Page 8 - Transcript of Hearing Matter of RAYMOND NINE and CHARLES ZAHRA ZBA Regular Meeting of March 16, 1989 JOSEPH ATTONITO, ESQ.: Good evening. Joseph Attonino. The firm's name is Scheyer, Jellenick and Attonito. 227 Middle Country Road, Smithtown. Gentlemen, I'm here tonight for the first time and of course I was not present at the other hearings, so that if I ask some rather naive questions, please have some patience because all I did is pick up naturally from the printed record. However, as I see this, this is an application for a Special Exception. This Board knows very well that in an application for a Special Exception, each and every prerequisite must be met. The proofs are very specific. We go through whatever is in the Code and you have a lot of the usual, general language in your Code that the-- as to the prerequisites that are applicable to each and every Special Exception. Then you have Special-- I won't even go into those because I have to assume that Mr. Bressler covered them in previous hearings and if they're not covered to your satisfaction, that you will vote against it. However, there are certain things, as Mr. DeReeder mentioned, that are specific to this application and just really two to three items. And I will be brief. Two or three items that are very surprising to me. It is not surprising to have a Bed and Breakfast statute linked to an owner-occupancy. I'm from Southampton Town. We have the same thing. My partner has something to do with zoning in Islip. They have the same thing for many of theirs. Smithtown has it. Brookhaven has it. That's quite common. I also notice the rather unusual Agreement that is purported to show owner-occupancy, and that's the agreement that Mr. DeReeder referred to which is labeled and is an Exhibit in this-Agreement for the Operation of a Bed and Breakfast. There is also in your files dated January 6, 1989 a letter from Eric J. Bressler and it states that we are the attorneys for Mr. Nine and Mr. Zahra, et cetera, et cetera. Without quoting the entire letter, it states in part: "In the first instance, the Agreement for Operation of a Bed and Breakfast requires Pamela Nine to reside on the premises and operate a Bed and Breakfast. The Board apparently incorrectly focused only on the permission to do the same executed by Charles Zahra. As a matter of law, the Contract Vendee, Pamela Nine has the requisite direct interest in the property, and then he cites "Matter of Commco, Inc. v. Amelkin." First of all, I seriously dispute whether the Agreement labeled "Agreement for Operation of Bed and Breakfast" is a Contract as stated by Mr. Bressler. First of all, it's totally revocable at almost any time. It is certainly revocable if this Board decides that there shall be no Bed and Breakfast at that house. Page 9 - Hearing Transcript Matter of NINE & ZAHRA _ Appl. No. March 16, 1989 ZBA Regular Meeting 3785 MR. ANTONITO, continued: Secondly, it has no consideration. Pamela Nine is not paying anything for it. I assumed that Mr. Bressler did not make the statement or the applicants did not make the statement that she paid anything for it in the beginning, and if she's getting a gift, which she very well might and it's perfectly legal, it is about the most revocable gift in the world because if this Board decides that this application is not to be granted, then Pamela Nine doesn't an interest in the house. And if the other two owners decide to sell Pamela Nine has to go along. So what we have here is not a Contract. But Mr. Bressler makes another statement in the letter that it gives the requisite direct interest in the property. This Board well knows that the interests that have been recognized by Zoning Boards traditionally are the gives one's status to make an application is either ownership or application as a contract vendee. I would legally dispute whether this qualifies as a Contract. I would legally dispute whether Miss Pamela Nine qualifies as a contract vendee. I assume that you will get an opinion from the Town Attorney's Office, and I have every reason to believe that the Town Attorney would agree in that particular matter that it is neither a Contract, nor does it really give her an interest in property. It gives her a rather illusory interest. In fact it's a rather illusory document. What you have here is they have to get the approval, or she gets no interest in the property. If she doesn't run the Bed and Breakfast, she's out. And if they want to sell, she has to go along with them. Now I don't care what the deed says. The deed, which I've seen a copy of, also refers to this Agreement, so I cannot believe that that's a real and true interest in the property. And you get to the second point on this particular document. A point with which was made by Mr. DeReeder. Your law calls for owner-occupancy. What exactly is owner occupancy? I'm going to go even a step further than Mr. DeReeder. You have 100 people on the deed and one of them is operating a Bed and Breakfast. Is that an owner-occupancy? Here you have two owners that paid money. I would assume their deed carries documentary stamps and shows consideration. You have another person with who purportedly has an interest by virtue of a rather unusual agreement and she is the one who is going to occupy it. Not a person who has paid money, not a person who has an irrevocable gift, but a person who will go in there solely for the purpose of the owner to be an owner occupany so that you can run a Bed and Breakfast. It would seem to me to be the most illusory of interests in real property. And hardly one that goes along with your statute that calls for owner-occupancy. But even--let's assume though for purposes of argument that it qualifies. Let's assume that this agreement qualifies to make Pamela Nine an owner-occupant. Your statute goes further to state, I may have lsot my marking, here we go--that the use as a Bed and Breakfast must be "clearly incidental and subordinate to the principal use of the dwelling." The principal use of Page 10 - Transcript of Hearing Appl. No. 3785SE - NINE & ZAHRA ZBA March 16, 1989 Regular Meeting MR. ANTONITO, continued: the dwelling is as a one-family house. This is an R-40 District. And it is purely a residential district, so that that must be the principal use. If that is the principal use, how can Pamela Nine make an argument that is valid to this particular Board that her using it as a Bed and Breakfast is the incidental use to her primary use of occupancy? She is only in there by virtue of the agreement which is an exhibit before this Board which is labeled an "Agreement for the Operation of a Bed and Breakfast." And that particular agreement states that if this Board doesn't grant it, she's out as an owner. If she doesn't run it as a Bed and Breakfast, she's out as an owner. If the other two people want to sell, she's out as an owner. How can her occupancy of that house be the principal occupation for that house when it very clearly states that her ownership is only linked to running the Bed and Breakfast? I wish I could come in with these. It would be very easy to put together an agreement that's purportedly fulfills the four corners of the statute, but this doesn't. And I do respectfully submit that if this were a variance, you would have some discretion as you know, variances on variance applications, Zoning Boards of Appeals are vested with relatively broad discretion. But I also submit that this Board is not vested with broad discretion when it comes to a Special Use Permit. The law is clear cases over and over and over again. The Board must make a finding, and that finding must be based upon the evidence submitted by the applicant, the applicant's attorney, or any witnesses that the applicant brings up that the applicant has fulfilled each and every prerequisite for the granting of the Special Use Permit, without again going into the basis prerequisites as found in your Zoning Ordinance, I respectfully submit that the two prime prerequisites have not been met in any way, shape or form. The prerequisite of owner-occupancy and the prerequisite of the Bed and Breakfast being an ancillary use to the prime use as a one-family residence. Thank you, gentlemen. CHAIRMAN: Mr. Bressler? MR. BRESSLER: Thank you, Mr. Chairman. Let me first address the remarks made by Mr. DeReeder. He made several points. I'll address them one by one. Mr. DeReeder first issue was concerning the fence. And says that there are certain motivations behind the fence. Without getting into that, I would just note for the Board--I'm sure the Board recalls--that Mr. DeReeder asked in the original hearing that the Zoning Board consider a modification to the applicants' plan that will minimize the effect on his family--the loss of privacy. Now though Mr. DeReeder may differ as to the means to achieve that end, I think it's clear that the fence was erected, certainly serves the dual purpose of minimizing the effect on his family on the loss of privacy. In fact I can't think of anything that would minimize the effect greater than a six-foot stockade fence. I don't see that there's any complaint. Curiously, an issue was made that there's no deed and the fence. I really don't understand that argument. The whole idea is to Page 11 - Transcript of Hearing Appl. No. 3785SE - NINE & ZAHRA ZBA March 16, 1989 Regular Meeting MR. BRESSLER, continued: insulate Mr. DeReeder from whatever may go on in the property. Secondly, to address a point of both Mr. DeReeder and Mr. Antonito made with respect to the standing of the Contract Vendee. The cases are clear. As cited, you need authority. The Contract Vendee has the requisite standing. I don't think there's any doubt about that. The next argument that was raised was that all owners must occupy. I don't see that in the Code. It doesn't say all owners. It says it must be owner-occupied. If one who owns lives there, it's owner-occupied. That's what the Code says. This Board is bound to apply it that way. Moreover, the reading of the Ordinance urged by the objectants here leads to some fair and peculiar results. For instance, in the case of a Matrimonial, there was a husband and a wife, they had broken up, the husband moves out, the wife wants to operate a Bed and Breakfast. In the objectant's reading, that of course would not be possible because the estranged husband would have to move back into the house. I don't think that that was the intent of the drafters. I can give you another example. The situation where you have both parents and children akin to our application where they are both on the deed for one reason or another, I don't think that the drafters of the ordinance envisioned everybody moving back in. Owner-occupied. It says owner-occupied. That's what it means. It's owner-occupied. The next issue that was raised is barely worth addressing. I'll just note that whatever the agreement may have been labeled is hardly binding or even relevant. The substance of the agreement is what is important. The next issue that was raised was the fact that there could be a re-conveyance. There's nothing in the Code that says there has to be an ownership interest and it can't be subject to a limitation or a re-conveyance. In this regard, I would note that if Pam Nine doesn't have an interest in the property, I would like to know the title company that would ensure over her deed. The next issue that was raised was a subordinate and incidental issue. This is kind of slippery, a slippery concept since there's no definition of that in the ordinance. But I think the fact that the agreement requires that she operate it as a residence clearly satisfies the principal test. You heard testimony from Miss Nine as to what she is going to do, how she is going to conduct herself, and I think that amply supports the fact that this is an incidental use. Page 12 - Transcript of Hearing Appl. No. 3785SE - NINE & ZAHRA ZBA March 16, 1989 Regular Meeting MR. BRESSLER, continued: Next Mr. Attonito raises an issue regarding consideration. And this as the Board knows and as Mr. Attonito well knows, consideration need not be in the terms of a monetary payment. I think we all know that, so I think the focus on that aspect is misplaced. I think, Mr. Chairman, you asked the question at the last meeting about that, and I think I amply responded to that issue. Finally, I think that the issue here is getting lost in the objectant's arguments here, and it seems to me that what we are dealing with is the issue that a Contract Vendee has standing. That this person will go on the deed. That this person in required to live there. That this person needs to live there. That the next-door neighbors will have privacy and that the application generally meets each and every test set forth in the Code. Now one additional thing I would like to say about this particular area, is to note for the Board, and I'll be handing these up in a moment, that the area in which this premises is located, and of course the DeReeder premises immediately to the west thereof, was prior to the amendment of the zoning ordinance (1989) surrounded on 2-1/2 sides, if you will, by business property and in near proximity to industrial property. After the amendment to the zoning ordinance, we have the properties again surrounded on 2-1/2 sides by Hamlet Business, and nearby we have residential office. And it seems that, therefore, the use of a Bed and Breakfast is one of the lesser intrusions that the objectant could be subjected to with respect to the zoning on the surrounding properties. I'm going to hand up the two zoning maps, which indicate the subject premises in green and the objectant's premises would be the rectangle immediately to the northwest thereof. In sum, what I think we have is a lot of smoke and no fire. I think that the law is extremely clear on the fact that the contract vendee has standing. The contract vendee is going to have a deed. I dare say that that contract is enforceable and on that issue I find one thing very peculiar in the argument made by objectants. They present this Board with the notion that a contract contingent upon a municipal approval is some how a strang animal. This Board sees them all the time. The Planning Board sees them. Every board sees them. There's nothing peculiar about that whatsoever. And I think that to the extent that attention is focused on that, to some how distinguish this contract, or any other contract, is absurd and it doesn't make it any less binding. What it does, as any contract does, it contains conditions. Whether it be this one or other ones. I'm sure the Board is familiar with the fact that all contracts contain certain contingencies, title, zoning in some instances, Planning Board approval, water, sewer, whatever. And I find that to be completely normal and not Page 13 - Transcript of Hearing Appl. No. 3785SE - NINE AND ZAHRA ZBA March 16, 1989 Regular Meeting out of the ordinary. In sum I think that the arguments presented by the objectants tonight are without substance and I think the Board has before it a sufficient record to grant this application. CHAIRMAN: Any rebuttal, Sir? MR. ATTONITO: I don't want to beat a dead horse and I'm not particularly interested in fences. They may make good neigh_bors, but I'm not entirely sure and I don't think it's particularly pertinent here, one way or the other. I have to get back to the statute. Let's get right back to the statute, and the agreement that's been presented here. The statute says, as a prerequisite of the grant, this Board must find that the use as a Bed and Breakfast is clearly incidental and subordinate. Clearly incidental and subordinate. The applicant has made the point that this contract is enforceable. I'm not going to argu whether it is or it isn't. What I'm saying, the point was made that the contract requires the young lady to live there. That's true. That's true. She has to live there. But what it really requires is, purchaser, that is Miss Nine, "agrees to establish and operate a Bed and Breakfast establishment in accordance with the Southold Town Zoning Ordinance and the approvals therefore." The contract is unusual in a number of instances. It is not the standard conditional contract that contains conditions subject to a variance, conditions subject to a map filed, site plan being approved. This contract doesn't give -- is not requiring her to live there, it's requiring her to live there only if the Zoning is granted, and that can't possibly fit in the four corners of this statute that says that the applicant must prove that the use as a Bed and Breakfast is clearly incidental. It makes the use as Bed and Breakfast the primary and the only way that Pamela Nine can get title to this property. If you people turn her down, she has no right to get title to this. It's only if you approve her, and she operates the Bed and Breakfast, then she gets a color of title because I have heard nothing, and I don't know anything before this Board that says that if this is every sold, that Pamela is going to get 25% of the proceeds. It says it's revocable, and she has to go along with it. It doesn't say that anybody has paid anything for it. That's all right. Then Mr. Bressler is right. She didn't have to pay anything for it. What happens at the end product? If it isn't payment and bought it, is it a gift? And if it is a gift, what happens if it's sold. Does she get 25%? I don't know. I don't know. But I do know one thing, that this particular agreement does not call for her to live there. It calls for her to live there only if she runs a Bed and Breakfast. That is not incidental. And that's certainly not clearly incidental. So, again, I get back to this. I feel that this is an illusory instrument only to give a color of right to get before this Board, and I believe that even if it does give the right to get before this Board, give Miss Nine or the applicants the right to get before this Board, that it must fail. Because on its own face, it simply says: Miss Nine, you can live there if we are successful and if you run a Bed and Breakfast. If she decides not to run that Bed and Breakfast, she doesn't live there any more. Page 14 - Transcript of Hearing Appl. No. 3745SE - NINE AND ZAHRA ZBA March 16, 1989 Regular Meeting MR. ATTONITO: And if she's not going to live there anymore, how can it possibly be the primary use. How can the Bed and Breakfast possibly be clearly incidental to the main use of the property, which an R-40 zone is a one-family house. Thank you. MR. BRESSLER: Mr. Chairman, Board. Very briefly. Again, we have issues I believe that are without substance. Whether this Board is concerned with what happens at the back end of this contract or what Pamela Nine is going to get, why this Board would be interested in that escapes me. However, I would note just to answer the point, she will be on the deed and the provisions of the agreement require that she enter into the contract of sale as a one-quarter owner, she's entitled to a one-quarter interest, and that's fairly clear. Secondly, I hope the last word on this incidental and subordinate issue, the agreement attracts the ordinance and supports it. It was drawn that way; that's what it does. It doesn't defeat it. The only way she can go into title is both to own it and operate it. It doesn't make the operation primary, and I think that the objectants are grasping its straws here. And I urge the Board to grant the application. CHAIP/~: Thank you. Any questions from Board Members? Jim? (None) I'm going to change the situation a little bit here and I'll see if I get an appropriate vote on it, but I'm going to suggest we close this at the next regularly scheduled meeting with no further oral testimony. Since we have two people missing and I do want to confer with the Town Attorney concerning this. So. I'll offer that as a motion. MEMBER GRIGONIS: Second. Vote: Ayes: Ail. (Me~ers Doyen and Sawicki were absent.) Linda F. Kowalski, Board Assistant Secretary, Board of Appeals Town of Southold As I start, to Mr. Bressler's I would ~-i-~ the Board to once again refer "Exhibits". I can understand the considerable glee with which Mr. Bressler's clients erected their substantial stockade fence--maximum height, ~inished side in, with no gate--but I would like to point out, in the interest of accuracy, the word "safety .... contrary to Mr. Bressier's assertion, was not used by me at any time during my comments to the Board on this matter. I am as sure of Mr. Bressler's ability to read as he was of mine last week when he a~tempted to deny me ~ opportunity to consult counse1 before speaking here. Should he have chosen to~ his reading skill, Mr. Bressler could have examined the transcripts of last October's hearing~ and ' - avoided placing words in my mouth that never belonged there. Instead of asserting that the ~ence provides such "safety"---as if these gentlemen had any genuine regard for the ~ell-being of my {amily--Mr. Bressler might have ~ his credibility instead of eroding it, and acknowledged that what this fence provides is a measure of satisfaction ~ ' -~- - a lesson that neither of to his If Mr. Nine and Mr. Zahra me a lesson with this fence, I them soon forgets. They should cherish this small satisfaction, for I am determined that it will be the full measure of the'~P satisfaction iL -- ' regarding this application. The fence is objectionable, to say the least, and its erection underscores lust how anxious Mr. Nine and Mr. Zahra are to be the good neighbors that the owner-occupancy requirement in the law is intended to ensure. 2 The Zoning Board's first denial of this application was not based, as Mr. Bressler asserted in his letter to the Board of January 6, and again at the hearing last week, ~simply "on an erroneous reading of the agreement put in evidence and the law applicable thereto." The denial ~ because this Board correctly found and determined~"'that it is without authority to grant a Special Exception use where the pro~ect does not meet ali of the applicable requirements of the Zoning Code." Nothing within this application has changed to allow the Zoning Board to find and determine different now. Yes, it's true that Mr. Bressler has now.geFsonally stepped in on  behalf of the applicants, and now Pamela Nine has been s.O formally presented to the Zoning Board. And let°s not ~ ~orget that an Article 78 proceeding in this same matter has been filed by ~h~ =~n._~y ~r t~ !ppi±~!~t_ in Supreme Court. But the important facts upon which the previous denial was based remain the same as at the last hearing, and they remain clear. This property, by any rational standards, remains non-owner-occupied, and its use as a bed and breakfast, under its present ownership--whoever that is l= clearly neither incidental nor subordinate. x2',~-,, . Bressler ~ last week~~-__ only one small p.ar~ of the deficiency of this application when he attempted to demonstrate that Pamela ~ine is entitled to operate a Bed and Breakfast on this property because she is a contract vmndee. I had expected Mr. Bressler to come charging into last week's hearing full of landmark precedents~noverwhelming arguments,t'and irrefutable logic. We all know that he~ ~_this sort of thing, and frankly, I s~ that he would be so formidable that I might take a pretty good thrashing. I shouldn't have worried. Instead of landmark precedents~ Mr. Bressler a~ ~O~..~I~e~ nearly as much ~ last week trying to prevent me from 2 spaaking, as he did stirring his clients' thin case. And instea~ o~ overwhelming arguments in his clients' favor, he sidestepped the issues central to this application and its previous ~enial. Instead of irrefutable logic, Mr. Bressler presented the Board with his three Polaroid pictures of a fence, li Then he presented Pamela Nine. .~The Board learned, through examination and the giving of twanty-one years old, lives with her parents ~-~ and works in the family card store.. She seems like a very nice girl. thinks testimony, that Pamela Nine is She likes to cook and knows how to clean, and she she would do a good job running a bed and breakfast. She agrees with Mr. Bressler that operating a bed and bre~k Fa~t ~ ~ ~i~ allow her to move out on her own= Mr. E~resster's interrogation also disclosed that she is the same Pamela Nine who i ........ ~_-~5 -~---~J- benefitted by the AGREEMENT TO OPERATE A BED AND BREAKFAST made a part of this Board's record last 8~m$~e-, and that her ~ather, a ~ns-~aif owner, will execute a deed to her---i__~n the event that t~is board grants a bed and breakfast permit. Under questioning from the Board, it was ~earned that she is the same Pamela Nine who will, under that same agreement, forfeit her rights as se-called "owner" if either 1) the real owners decide to sell, or 2) she fails to operate a bed and breakfast on the premises. Perhaps Mr. Bressier has demonstrated to this Board's satisfaction that Pamela Nine has a ~ interest in this house. As they have themselves presented the facts, however, neither Charles Zahra nor Raymond Nine occupies or ~n~-nO~ to occupy these premises, which is a clear requirement of the zoning ordinance. l~ t~r. Bressler has gone so far as to have convinced you that Pamela Nine~- an owner of some kind and that now there are three owners of this property---by extension of the application before you, you are being asked to place your aalllt,/ to control any use in which owner-occupancy is a 4 requirement in terrible, irrevocable jeopardy. Let's say that, instead of three persons, ten persons own this house, all of whom live elsewhere. Let's say they own four or five homes around Southold town. They invite a new class of partner into their partnership, not as operators per se, who might be construed as employees, but as partners, just like Pamela Nine. Maybe these invited partners have to give up their share of ownership should they fail to operate a bed and breakfast to the satisfaction of the majority; maybe they don't. Maybe these invited partners have to give up their ownership if the majority decides to sell; partners are all maybe they don't. And maybe these invited worthy~local young people who are frustrated that at twenty-one years old they can't buy houses of their own and may otherwise have to live at home. There are rational, healthy purposes for the requirement for owner-occupancy in zoning ordinances. This requirement is awell-defended~ option available to Towns to 5 pursue legitimate zoning goals. It legally allows some citizens to accrue financial benefits that are withheld from others--this is clearly the case in both accessory apartment uses and bed and breakfast uses in residential zones in Southold To~n. I ~ al so a~o~s a_ measYFm--of==~m~ce~-~l-dn'=~gai ns~ ant i i' 'ownsrs might engage in to. the de~_.~.~i_m._e_nt,_of the communi~t¥._in~ · or un-nei ghbor 1 y act~vi ti e~"~hat ~rof i t-de. yen_absentee ~h[ch~.~heyjown-;~"-~t do,no[,.-occupy~ ,p~perty~ ........... Does the Zoning Board wis~ to set this dangerous precedent by granting this special exception use to a partnership? The decision this Board must make lies at the end of a,e~e~'~simple riddle--How many of the owners of this property must live here in order to meet the owner--occupancy requirement o+ the law? no r~om +or compromise. More i~portant, however, our present ALL OF THEM. I see Town attorney, who was on ~he Code Committee that drafted this law, mees no room for compromise, either. I submit to you part of Mr. Schondebare's letter to this BoardO~I-~ ,~..i~.~,~ December 7, 1988, which I quote: "In order for this application to be approved, Mr. Zahra and Mr. Nine will have to s~ate under oath that they both reside on the premises. As they have both listed their addresses as someplace else, i fail to see how they can now state otherwise." 7 The first denial of this application, filed by the Town Clerk on December 15, ordinance. E~ specifically provides for received and 1988, quotes the "the renting of not more than three (5) rooms in an owner-occupied dwelling for lodging and serving of break-Vast to not more than six casual and transient roomers, provided that the renting of is clearly incidental~and subordinate to the principal use of the dwelling. Now, let's review the document provided to the Board by the applic&nts upon which their attorney builds his case for owner--occupancy. This is the document under which Mr. Nine transfers to his daughter, under carefully set conditions, one-naif of his one-half interest in the Reeve house. Instead of being called a contract of sale, or anything like that, it boldly titles itself, and I quote from the underlined capital letters at the top of its first page: AGREE.~'!ENT FOR OPERATION OF BED AND BREAKFAST. *****IWm still confused, by the way, even after Mr. BresslerWs speech last contract of sale at all, it only what it says it is--an week. Is this really a valid as Mr. Bressler has implied, or is agreement to operate a bread and break, fast? Maybe Mr. Attonito could clarify that_~_ in a few minutes.***** )) It is revealing that this AGREEMENT FOR OPERATION OF A BED AND BREAKFAST includes the following language: 5. Io~-t~e.~e~t-S~t-l~-~"~harl~: O. -~n-~a ' sell:.khe P(emises, they shall furnish Pttr~haser with 60 days:'-~ri.t~en no~ice;..~-Purchaser, shall. thereupon terminate- the bed and breakfast In the event Purchaser fails to operate a bed and breakfast establishment in accordance with this agreement, she shmll upon demand execute and deliver a deed reconveying her interest to Seller. The provisions of this agreement shall survive delivery of the deed. That the use is "Clearly incidental and subordinate to the principal use of £~w conditions placed on an applicant breakfast use under Southoid Town Law. the dwelling", is one of only a very seeking a bed and In view of the extreme severability of Pamela's Nine's purported rights of ownership--any bed and breakfast use of these premises under its present ownership--whoever the real owners are---simply is not "clearly incidental and suOordinate to its principal use as an owner-occupied dwelling." Instead, clearly anything but incidental and subordinate; Pamela Nine must operate this bed and breakfast, or have her fragile interest in this property revoked--sound~-~i;~{i~'~s~ -~e~i~?--under the same AGREEMENT FOR OPERATION OF A BED AND BREAKFAST that grants her ~this unusual interest in the As I e~:plained to this Board five months ago, and as I have pointed out again tonight, this Board very clearly and very simply does not have the authority to grant this applica~ioni ~ Even though Mr. Zabra and Mr. Nine were kind enough to allow you this new opportunity to consider their case, and ~ven though Mr. Bressler may have tenuously placed Pamela Nine in some relation to this application, this 4 property remains owner-occupied for purposes of the zoning ordinance only in the imaginations of the applicants and their attorney. Furthermore, in light of the document upon which Mr. Bressler has based his arguments regarding owner occupancy, any ' : ' that this proposed bed and breakfast use is clearly incidental and subordinate remains outside the boundaries of any honest argument and beyond the reach of any logical conclusion. 5 Neither Mri Zahra nor Mr. Nine once approached me or my family before making this application, or at any time before the first hearing in October. After the hearing, I telephoned Ray Nine, who I had considered a good neighbor if not a close friend, to explain my strong reaction to their sorprise applicmtion, and to try to re-open--air", ,~-- communication between us. end couldn't talk to me. Mr. Nine told me he was upset, I asked him to call me back so we could speak about the hearing after he cooled down. He never called me back and he hasn't spoken to me since. From the transcripts of the last hearing, recall the following: you might Mr. NINE: It (meaning the driveway) still goes around. But if there's a problem with that, we certainly could do something to-- Mr. ZAHRA: We could rectify that. Mr. NINE: around. Rectify that so that they wouldn't be able to go CHAIRMAN: By nature of a split rail fence or something of that nature. Mr. ZAHRA: Absolutely. Could put up any type of fence you'd like. Mr. NINE: Whatever. Split-rail fence. Trees. Whatever you have to do. Concrete wall. In the anteroom after the hearing, among ~ other comments, Mr. Nine and Mr. Zahra directed additional remarks 2 to me about the appropriateness of a concrete wall dividing our properties. This winter the Zahra-Nine fence went up. As you can see from Mr. Bressler's Exhibits, the fence between our properties is not a spli~ rail fence. It's a six and one half foot high, purposely unfriendly stockade fence--erected wrong-side out and with no gate--that offsets much of the grace and charm of both our houses. My family will live with the fence--as we must--because the owners are completely within their rights to keep it there. Zoning ordinances cannot regulate mean-spiritedness. My family's solace is that the person who appreciates the grace of the Evelyn Reeve house enough to purchase it will likely see the inappropriateness of the fence and remove it. There may be those in this town who look upon Mr. Zahra and Mr. Nine as local heroes of some kind--and part of that is for very good reason. Mr. Ninets hard work, generosity, 5 and personal loyalty are legendary around Mattituck, and Mr. Zahra has demonstrated, to the joy of many, that our governmental process, while imperfect, occasionally can be remedied in favor of a righteous citizen. When the Zoning Board ~inds once again against this application, as it must, hundreds of local citizens will be lO'king ~orward to Mr. Zahra's next crusade against municipal oppression--and probably at least as many will be wondering how Mr. Nine came to be involved in all this. I will be watching as well, "/J ' I~ Mr. Zahra and Mr. and participating, if need be. Nine had shown my family the slightest consideration--or even given me the courtesy of a phone call--at any time during this process, we all might ~ have been able to avoid this entire ugly mess. But they have chosen instead to make me their adversary, and I will be as worthy an opponent as I could have been their ally. These gentlemen have sorely misjudged me. I can be 4 sympathetic to and accomodating of other people's needs more than most people, and I will staunchly defend anyone's property rights, even Mr. Zahra's and Mr. Nine's. But I will not be bullied by tough talk or stockade fences. And I become encouraged, not cowed, when someone begins spending his reputation cheaply because he perceives it to be invincible. I wiii continue to vocally assert my views and vigorously defend my rights so long as either Mr. Zahra or Mr. Nine takes the slightest pleasure in compromising my family's lifestyle or gives us the faintest indication that they would attempt to run roughshod over our rights to the quiet enjoyment ~'~ our home. Mr. Nine owes it to me and to himself to examine the supposed "facts" as he believes them about our properties and my business affairs, upon which he seems to justify a large measure of personal resentment towards me. They are simply not true. He should also know that I would like to 5 try to become good neighbors with him once again, based on the well-deserved trust and mutual respec~ we had shared to some degree before this began. Should they ever wish to discuss this matter further with me, out of the public forum, I invite Mr. Zahra and Mr. Nine to meet with me in my home. I can only believe that, through honest communication between us, both my family's concerns and Mr. Zahrars and Mr. Nines~s economic needs can be met. Thank you for your time. 6 Court, SUFFOLK County Full title of actmn In the Matter of the A~ol~c~on of RAYMOND F. NINE ,' Pg2~EIA NINE and CHARLF_q ZAHRA Petitioners, For a Judgment Pursuant to Article 78 of the CPLR -against- SOU~HOLD TCWN BOARD OF APPEALS, P~spondent. Defendant(s) Respondent(s) Index No. Date Purchased REQUEST FOR JUDICIAL INTERVENTION For Clerk Only Name of assigned judge Date of assignment [] Issue joined (date ........................................................... ) (check if applicable) [] Bill of particulars served (check if applicable) In the City of New York only: [] The City of New York is a'party to this action. [] The Transit Authority (or MABSTOA) is a party to this action. [] [] Request for preliminary conference Note of issue and or certificate of readiness Notice of motion (return date ........................................... ) Relief sought [] Order to show cause (Clerk will enter return date ) Relief sought NATURE OF JUDICIAL INTERVENTION (check) I-I Other ex parte application 8:~ Notice of petition (return date .... . .............. ) Relief sought annul. &...set.. as'i de .l?~8[::x:mdo__.nt !s ........... determir~'~Lcal...of...,~ril...I3, 19.8~.. de. hying ............ Petitionor..'..s...special...exception ..application ..... [] Notice of medical malpractice action [] Notice of demal malpractice action [] Statement of net worth - [] Writ of habeas corpus ~ [] Other spec fy) NATURE OF ACTION Tort [] Motor vehicle [] Medical malpractice [] Dental malpractice [] Seaman [] Airline '¢ [] Other tort, including but not limited to personal injury, property damage, slander or libel (specify): ......................... [] Matrimonial (contested) [] Matrimonial (uncontested) OR PROCEEDING (check) Special Proceedings [] Tax certiorari [] Condemnation [] Foreclosure [] Incompetency or conservatorship Other special proceeding, including but not limited to: [] Article 75 (arbitration) [] Article 77 (express trusts) 1~: Article 78 [] Other (specify): ...................................................................................... OTHER ACTION [] Contract "~' [] Other (specify): ........................................................................................... %uach rider sheets if necessary to provide required information. If an>' part>, is appearing pro se (without an attorney), thc required information concerning such pail)' is to b~ entered in the space pro~ided for attarneys. --. Attorney(s) for plaintiff(s)/petitioner(s) Name N'XCKI~, WXCKI-Ib31 & BRES~.~'~R, P.C. Address l~in Road - P.O. Box '1424 Mattituck, New York 11952 Phone 516-298-8353 Attorney(s) for defendant(s)/respondent(s) Name Address Phone Name of insurance carriers (if applicable and available) RELATED CASES (if none, write "NONE" below) Title Index # Cour[ Nature of relationship I affirm under penalty of perjury that, to my knowledge, other than as noted above, there are and have been no related actions or proceedings, nor has a request for judical intervention previously been filed in this action or proceeding. WIC~rIA.M, WICKHAN & BRESSLER, P.C. A~orney(s) for Office & P.O. Address Main Road - P.O. Box 1424 'Matti%uck, New York 11952 · (51~¥ 29~j8353 /: 1989' SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ........................................ X Index No. In the Matter of the Application of RAYMOND F. NINE, PAMELA NINE, and CHARLES ZAHRA, Petitioners, NOTICE OF PETITION For a Judgment Pursuant to Article 78 of the CPLR -against- SOUTHoLD TOWN BOARD OF APPEALS, Respondent. SIRS: PLEASE TAKE NOTICE, that upon the annexed petition of t~e petitioners, Raymond F. Nine, Pamela Nine, and Charles Zahra, verified on the 26th day of May, 1989, and the exhibits annexed thereto, and upon all the proceedings had before the respondent, Southold Town Board of Appeals, in the matter of appeal number 3785SE an application will be made at an IAS Motion Part to be held at the Courthouse on Griffing Avenue, Riverhead, New York on the 16th day of June, 1989, at 9:30 o'clock in the forenoon, or'' as soon thereafter as counsel may be heard, why judgment should not be made and entered pursuant to CPLR Article 78 as follows: (1) annulling and setting aside Respondent's determination of April 13, 1989 denying Petitioner's application (Appeal No. 3785E) for a ~ecial exception for permission to establish "Bed and Breakfast Use" in an "A" Agricultural and Residential district on the grounds that such denial was contrary to law, an abuse of discretion, arbitrary and capricious and hot supported by substantial evidence on the record; (2) granting the Petitioner such other and further relief as to this Court may seem just and proper. Petitioners designate Suffolk County as the place of trial. Dated: May 26, 1989 Mattituck, New York Yours, etc WICK}{AM, WICK}{AM & BRESSLER, Attorneys for Petitioners Main Road - P.O. Box 1424 Mattituck, New York 11952 (516) 298-8353 P,Co SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ........................................ X Index No. In the Matter of the Application of RAYMOND F. NINE, PAMELA NINE, and CHARLES ZAHRA, Petitioners, For a Judgment Pursuant to Article 78 of the CPLR -against- SOUTHOLD TOWN BOARD OF APPEALS, Respondent. COUNTY: The Petition of Raymond F. respectfully shows: VERIFIED PETITION TO THE SUPREME COURT OF THE STATE OF NEW YORK, SUFFOLK Nine and Charles Zahra ".'1. Respondent at all times mentioned was and is the Southold Town Board of Appeals, duly established pursuant to Town P. Geoghringer is and was Law Section 267 of which board Gerard at all times chairman. 2. Petitioners, Raymond F. Nine and Charles Zahra, are the owners of real property with a hous~ thereon situated at New Suffolk Avenue, Mattituck, Suffolk County, New York, more fully described in Schedule A attached hereto. 3. In October, 1988, Petitioners entered into an agreement with Petitioner, Pamela A. Nine, whereby she was to acquire from petitioner, ~ymond F. Nine, an undivided one- quarter interest in such premises, and reside and operate a "bed and breakfast" therein. Copy of Agreement annexed as Exhibit A. Petitioner, Charles Zahra, consented to such arrangement, copy of Number 3785. 1988. 5. By decision dated, Respondent denied the application, consent annexed as Exhibit B. The agreement was contingent upon Petitioners obtaining a special exception to operated a bed and breakfast on the premises pursuant to Southold Town Code Section 100-30(S) (16) . 4. Petitioners, Raymond F. Nine and Charles Zahra, duly applied to Respondent for the special exception under Appeal A public hearing was held thereon on October 16, December 8, 1988, the copy annexed as Exhibit C. 6. By letter dated January 6, 1989, Petitioners, Raymond F. Nine and Charles Zahra, applied for a rehearing on this denial, annexed hereto as Exhibit D. ~ 7. By decision dated, February 9, 1989, Respondent granted Petitioner's request for a rehearing and set the matter down for a hearing on March 9th, 1989, copy annexed hereto as Exhibit E. Petitioner, Pamela Nine was added as petitioner. 8. By decision dated April 13, 1989, and filed with the Clerk of the Town of Southold on April.~,~ 19~, the Respondent denied the application, copy annexed as Exhibit F. 9. The aforesaid determination of Respondent was an abuse of discretion, arbitrary and capricious, contrary to law, and not supported by substantial evidence on the record in that: a) The R-~spondent failed to give proper legal consideration to the status of Pamela Nine as contract vendee, stating that she did not have the requisite direct interest in the b) c) d) e) property. It is well established that a contract vendee has a recognizable equitable interest in real property for zoning purposes. The Respondent failed to properly consider the contract of sale as creating an interest as contract vendee, but, rather considered only the permission of the co-owner and Petitioner, Charles Zahra. Respondent failed to grant the relief sought conditioned upon consummation of the contract transaction since Petitioners met the tests set forth in the ordinance to wit: owner occupation and, not more than 3 rooms, not more than 6 roomers and adequate parking. Respondent failed to grant the relief sought based in part upon its erroneous determination that the proposed use of the premises as a bed and breakfast was not subordinate and incidental. There are no findings to support this conclusion, only a conclusory statement that such conclusion is "apparent". There is no support in the record'for this conclusion. The failure to grant Petitioner relief upon granting rehearing is contrary to Section 267 of the Town Law. WHEREFORE, Petitioners pray that judgment be granted herein as follows: 1) 2) 3) Dated: Mattituck, May 26, 1989 Reversing the determination made by Respondent as aforesaid; Granting the relief sought by Petitioners the aforesaid appeal; Granting Petitioner such other and further relief as is just and proper. New York WICKHAM, WICKHAM & BRESSLER, Attorneys for Petitioners Main Road - P~D. Box 1424 Mattituck, New York 11952 (516) 298-8353 PoC. SCHHIXILE A kLL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being at ~4attituck, Town of Southold, County of Suffolk and State of New York, bounded and described as follows: BEGINNING at a point on the northerly side of New Suffolk Avenue ~istant easterly 572.20 feet as measured along New Suffolk Avenue frcra the easterly side of Main Road (NYS Route 25); running %~{ENCE North 2° 18' 40" East, 200 feet; R/~ENCE South 86° 09' 00" East, 113.00 feet; TH~/qCE South 2° 18' 40" West, 200.00 feet to the northerly side of New Suffolk Avenue; THENCE North 86° 09' 00" West, 113.00 feet to the point or place of BEGINNING o BEING and intended to be the same premises described in Liber 5126, Page 181 conveyed to Evelyn K. Reeve who died 1/18/86, testate, a resident of Suffolk County. Letters testamentary dated 2/20/86 issued to William Wickham, as Executor. DISTRICT: 1000 SECTION: 114.00 11.00 920.000 AGREEMENT FOR OPERATION OF BED AND BREAKFAST AGREEMENT made this 12th day of October, 1988, between RAYMOND F. NINE, residing at no# New Suffolk Avenue, Mattituck, New York, as Seller, and PAMELA A. NINE, residing at no# New Suffolk Avenue, Mattituck, New York, as Purchaser, WHEREAS, Seller is the owner of a one-half interest in the premises known as the "Reeve House" at 635 New Suffolk Avenue, Mattituck, New York (SCTM#1000-114-11-20), and WHEREAS, Purchaser is interested in acquiring an interest in the premises and operating a bed and breakfast establishment at the premises, and WHEREAS, the other owner of the premises, CHARLES J. Z~, has consented to the agreement between Seller and Purchaser herein; THEREFORE, in consideration of the agreements between the parties made in this agreement, the parties agree as follows: 1. Seller shall pursue an approval for a bed and breakfast establishment at the premises from the Southold Town Zoning Board of Appeals and, if required, the Southold Town Building Department. 2. In the event such approval is obtained within six (6) months from the date hereof, Seller will convey to Purchaser by a Bargain and Sale Deed with covenant against Grantor's Acts an undivided one-quarter interest in the premises. Such deed shall be delivered and the premises conveyed subject only to: (a) Zoning regulations and ordinances. (b) Any state of facts an accurate survey may show, provided same does not render title unmarketable. (c) Covenants and restrictions of record, if any, affecting said premises, provided same are not violated by existing structures. 3. Purchaser agrees to establish and operate a bed and breakfast establishment in accordance with the Southold Town Zoning Ordinance and the approvals therefor upon acceptance of the deed. oo painting as necessary. Purchaser and Seller shall share equally the cost of interior and exterior clean-up. Any necessary capital improvements shall be borne by the owners of the premises in proportion to their ownership interests. 5. In the event Seller and Charles J. Zahra decide to sell the premises, they shall furnish Purchaser with 60 days written notice. Purchaser shall thereupon terminate the bed and breakfast operation and shall also enter into the contract of sale on the terms approved by Seller and Charles J. Zahra. 6. Ail expenses and costs, and all income and profits from the operation of the bed and breakfast shall belong to the owners of the premises in proportion to their ownership interest. The cost of the taxes, insurance and maintenance on the premises shall be included in the foregoing. 7. In the event Purchaser fails to operate a bed and breakfast establishment in accordance with this agreement, she shall upon demand execute and deliver a deed reconveying her interest to Seller. The provisions of this agreement shall survive delivery of the deed. In Witness Whereof, the parties have ~igned this agreement. Raymond F. Nine 53-nineb&b Pamela A. Nine CONSENT TO AGP~EEMENT FOR OPERATION OF BED AND BREAKFAST CHARLES J. ZA}{RA, residing at 1830 Pike Street, Mattituck, New York, as the owner of one-half undivided interest in the premises known as the "Reeve House" at 635 New Suffolk Avenue, Mattituck, New York, hereby consen~ to the terms and conditions of the Agreement for Operation of Bed and Breakfast between Raymond J. Zahra, as Seller, and Pamela A. Nine, as Purchaser, dated October 12, 1988, with respect to the premises. Dated: October 12, 1988 Charles J/. ~hra APPEALS BOARD MEMBERS GERARD P. GOEHRINGER. CHAIRMAN CHARLES GRIGONIS, JR. SERGE OOYEN, JR. JOSEPH H. SAWlCKI JAMES DINIZIO, JR. Southold Town Board of Appeals MAIN ROAD- STATE ROAD 2S srIUTHE}LO, L.I., N.Y. 11971 TELEPHONE (516) 765-1809 ACTION OF THE BOARD OF APPEALS Appl. No. 3785: Application of RAYMOND NINE and CHARLES ZAHRA for a Special Exception to the Zoning Ordinance, Article III, Section 100-30B(16) for permission to establish "Bed and Breakfast Use," "an owner-occupied building, other than a hotel, where lodging and breakfast is provided for not more than six casual, transient roomers, and renting of not more than three rooms. Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; ...County Tax Map District 1000, Section 114, Block 11, Lot 20. WHEREAS, a public hearing was held on October 26, 1988 in the Matter of the Application of RAYMOND NINE and CHARLES ZAHRA under Appl. No. 3785; and WHEREAS, at said hearing all those who desired to be heard were heard and their testimony recorded; and WHEREAS, the Board has carefully considered all testimony and documentation submitted concerning this application; and .WHERE~, ~ ......... er~ have personally vmewed and are familiar with the premises in question, its present zoning, and the surrounding areas; and WHEREAS, the Board made the following findings of fact: 1. By this Application, applicants request a Special Exception for a "Bed and Breakf~-st,, Establishment, for the rental of three bedrooms for lodging and serving of breakfast to not more than six casual and transient roomers, which will be incidental and subordinate to the principal single-family use of the existing dwelling. 2. The premises in question is located in the "A" Residential and Agricultural Zoning District, contains a total Page 2 - Appeal No. 3785 Matter of RAYMOND NINE and CPIARLES Decision Rendered December 8, 1988 ZAHRA area of 22,992 sq. ft. with frontage along the north side of New Suffolk Avenue 113.0 feet, and by deed dated June 5, 1986 at Liber 10062 page 225, the premises was conveyed by William Wickham, as Executor of the Estate of Evelyn K. Reeve, to the Raymond F. Nine and Charles J. Zahra. 3. The subject premises is identified on the Suffolk County Tax Maps as District 1000, Section 114, Block 11, Lot 20, and is improved with a single-family, 2-1/2 story frame dwelling, with setbacks of 54+- feet from the front property line along New Suffolk Avenue, 31+- feet from the westerly side property line along !~nds now of DeKeeder, 40+- feet from the easterly side property line along lands now of Nine, and 108+- feet from the northerly rear property line along lands now or formerly of Wilsberg (see copy of survey dated January 14, 1986 prepared by Roderick Van Tuyl, P.C.). ' 4. Chapter 100, Article III, Section 100-30B of the Zoning Code provides as follows: · .. B. Uses permitted by special exception by the Board of Appeals. The following use(s) are permitted by a special exception by the Board of Appeals, as hereinafter provided, and, except for the uses set forth in subsection (16) hereof, are subject to site plan approval by the Planning Board in accordance with Article XIII hereof: (16) The renting of not more than three (3) rooms in an owner occupied dwelling for lodging and serving of breakfast to not more than six casual and transient roomers, provided that the renting of such rooms for such purpose is clearly incidental and subordinate to the principal use ~f the dwelling, subject to the following requirements: (a) That ~ ....... a~Ru~u= off-street p&~king spaces shall be provided for such rented rooms in addition to parking spaces for the use of the family of the owner... 5. The record shows that both owners do not and will not reside within the dwelling, and that the individual who will reside within and occupy the residence and proposed Bed-and-Breakfast use is being ~signed permission to do the same, rather than having a direct interest as a property owner as required by the statute. Further, no testimony has been furnished by the proposed occupant of the premises under oath, as an applicant, or otherwise for the record. Page 3 Appl. No. 3785 Matter of RAYMOND NINE and CHARLES ZAHRA Decision Rendered Decen~ber 8, 1988 6. In considering this application, the Board finds and determines that it is without authority to grant a Special Exception use where the project does not meet all of the requirements of the Zoning Code {Knadle v. ZBA of Huntington, 121 AD2d 447 (1986}; Roginski v. Rose, et al., 63 NY2d 735 (1984). Accordingly, on motion by Mr. Grigonis, seconded by Mr. Sawicki, it was RESOLVED, to DENY WITHOUT PREJUDICE the Application for a Special Exception as applied under File No. 3785 in the Matter of RAYMOND NINE and CHARLES ZAHRA. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis, Sawicki and Dinizio. (Absent was: Member Doyen, due to serious family illness.) This resolution was duly adopted. lk GERARD p. GOE}~INGER, CHAIRMAN WICKHAM. WiCKHAM & BRESSLER. Pc January 6, 1989 Southold Town Board of Appeals Main Road - State Road 25 Southold, New York 11971 Gentlemen: We are the attorneys for Raymond F. Nine and Charles J. Zahra and are writing you in con~ection with Application No. 3785 and your decision made with respect thereto. We note that the decision is based upon the purported fact that Pamela Nine is being assigned permission to operate the Bed and Breakfast and reside on the premises, rather than having a direct interest as a .~roperty owner as required by statute. This statement is incorrect based upon the law and evidence in the record. In the first instance, the agreement for operation of a Bed and Breakfast requires Pamela Nine to reside on the premises and operate a Bed and Breakfast. The Board apparently incorrectly focused only on the permission to do same executed by Charles Zahra. As a matter of law the contract vendee, Pamela Nine has the requisite direct interest in the property. In the Matter of Commco, Inc. v. Amelkin, 109 App. Div.2d 794, 486 N.Y.S.2d 305 (2 Dept. 1985). ' Accordingly, we are requesting that the matter be set down for rehearing and that upon rehearing the original determination be reversed since ~t was b~ed on an err~.oo,~ reading of the agreement put in evidence and the law applicable thereto. Very truly yours, c ~. Bres$1er EJB/jtz Southold Town Board of Appeals ~:~¢"~..~,- _~'A~y MAIN ~OAO- STATE ROAO 2S SOUTHOLD. L.'., N.y. 119~1 ~ TELEPHONE (516) 765-1809 APPEALS ~OARO GERARD P. COEHRINGER. CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWICKI JAMES DINITIO, JR. February 10, 1989 Eric J. Bressler, Esq. Wickham, Wickham & Bressler, P.C. ~ain Road, P.O. Box 1424 MAttituck, NY 11952 Re: Appl. No. Dear Eric: 3785 - Nine & Zahra (Bed and Breakfast) This letter will confirm that the following'action was taken by the Board of Appeals at our February 9, 1989 Special Meeting: RESOLVED, to set THURSDAY, MARCH 9, 1989 as the date of a public hearing in the Matter of RAYMOND F. NINE, PAMELA NINE and CHARLES ZAHRA for a Special Exception to establish "Bed and Breakfast Use," "an owner-occupied building, other than a hotel, where lodging and breakfast is provided for not more than six casual, transient roomers, and renting of not more than three rooms. Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; County Tax Map District 1000 Section 114, Block ll, Lot 20; and BE IT ' FURTHER RESOLVED, that the owner and occupant of the dwelling and the operator of the proposed Bed and Breakfast Use complete the attached Special Exception form and return same together with a copy of the deed showing proof of ownership for the same. This resolution was unanimously adopted. Please furnish our office~ith the requested documents as early as possible to complete t~e file. A copy of the Legal Notice as published in the L.I. Traveler-Watchman and Suffolk Times will be forwarded to you as confirmation of the time of the hearing in this matter. lk cc: Town Attorneys' office YOU~ very CHAIRMAN APPEALS BOARD MEMBERS GERARD P. GOEHRINGER. CHAIRMAN CHARLES GRIGONIS, JR. SERGE 00YEN, JR. JOSEPH H. SAWlCKI JAMES DiNIZIO, JR. Southold Town Board of 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 ACTION OF THE BOARD OF APPEAT..q Appl. No. 3785: PUBLIC HEARING in the Matter of the Application of RAYMOND NINE, CHARLES ZAHRA and PAMELA NINE for a Special Exception to the Zoning Ordinance, Article III, Section 100-30B(16) for permission to establish "Bed and Breakfast Use," 'an owner-occupied building, other than a hotel, where lodging and breakfast is provided for not more than six casual, transient roomers, and renting of not more than three rooms.' Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; County Tax Map District 1000, Section 114, Block 11, Lot 20. WHEREAS, a hearing was held on the Board's own motion upon request of the applicant on March 9, 1989 in the Matter of Appl. No. 3785 for RAYMOND NINE, CHARLES ZAHRA AMD PAMELA NINE (received February 27, 1989, as amended to include Pamela Nine); and WHEREAS, at said hearing all those who desired to be heard were heard and their testimony recorded; and WHEREAS, the Board has carefully considered all t~stimony and documentation snLbmitted concerning this application; and WHEREAS, the Board Members have personally viewed and are familiar with the entire record, including verbatim transcripts of hearings, the premises in question, its present zoning, its previous zoning, and the surrounding areas; and WHEREAS, the Board made the following findings of fact: 1. By this application, ~pproval is sought for a Special Exception for a "Bed and Breakfast" Establishment, for the rental of three bedrooms for lodging and serving of breakfast to not more than six casual and transient roomers. 2. The premises in question is located in the "Low-Density Residential R-40 Zone District," contains a total area of 22,992 sq. ft. with 113.0 ft. frontage along the north side of New Suffolk Avenue. Southold Town Board of Appeals -2- April 13, 1989 Regular Meeting (Appl. No. 3785 - NINE & ORS, decision, continued:) 3. The subject premises is identified on the Suffolk County Tax Maps as District 1000, Section 114, Block tl, Lot 20, and was conveyed by deed dated June 5, 1986 at Liber 10062 page 225 by William Wickham as Executor of the Estate of Evelyn K. Reeve to Raymond F. Nine and Charles J. Zahra. 4. This parcel is improved with a single-family, 2-1/2 story frame dwelling, with setbacks of 54+- feet from the front property line along New Suffolk Avenue, 31+- feet from the westerly side property line along lands now or DeReeder, 40+- feet from the easterly side property line along lands now of Nine, and 108+- feet from the northerly rear property line along lands now or formerly of Wilsberg (see.copy of survey dated January 14, 1986, prepared by Roderick VanTuyl, P.C.). 5. For the record it is noted as follows: (a) A public hearing was~initially held on October 26, 1988 for this Bed and Breakfast Use on application made by Charles Zahra and Raymond Nine, owners of the property; (b) A decision was rendered by this Board under date of December 8, 1988, filed in the Office of the Town Clerk on December 13, 1988, denying the initial application for a Special Exception, without prejudice, ~or the reasons noted therein; (c) On December 13, 1988, referral was made by the Board of Appeals pursuant to the requirements of Sections A 14-14 to 23 of the Suffolk County Administrative Code to the Suffolk County Planning Commission. This matter was deemed by the County Planning Commission to be a matter for local determination; (d) On January 9, 1989, the applicants via their attorney requested this application be set down by this Board for a rehearing based on their claim of an erroneous reading of the Bed-and-Breakfast Agreemen~ and the law applicable to this application; (e) On January 10, 1989, the Town Board passed the new Master Plan and Zoning Amendments; (f) At a Regular Meeting held January 12, 1989, the applicant's request for a rehearing was considered by the Board of Appeals, and it was the consensus of the Board Members that the applicant instead apply with a new application by the new (proposed) property owner with proof of (new) ownership and applicable testimony by the new owner; Southold Town Board of Appeals -3- April 13, 1989 Regular Meeting (Appl. No. 3785 - NINE & ORS, decision, continued:) (g) On January 13, 1989, the Board of Appeals was made aware of an Article 78 proceeding filed with the Town Clerk's Office January 12, 1989 concerning the Board's December 8, 1988 decision under the Special Exception application; (h) At a Special Meeting held February 9, 1989, the Board Members agreed to reopen the public hearing to allow submission of testimony by Pamela Nine, the person intending to operate the Bed and Breakfast establishment and intending to reside at the premises if this Special. Exception is approved, and submission of any proposed amendments and additional documentation, such as proof by way of a copy of a deed or other legal document showing proof of ownership by Pamela Nine; (i) During the time of ~he initial application filed September 28, 1988 and about January 22, 1989 under Application No. 3785 for the same "Bed and Breakfast" use by Special Exception, the subject premises was located in the "A-Residential and Agricultural Zone District," and the provisions of law applicable have not changed since the effectuation of the new R-40 Zone District (except for the renumbering from Article III,-~ection 100-30B(16) to Article III-A, Section 100-30A.2(B) and Article III, Section 100-31(B15)~, which reads as follows: ...B. Uses permitted by special exception by the Board of Appeals. The following uses are permitted as a special exception by the Board of Appeals, as hereinafter provided, and, except for the uses set forth in Subsection B(15) hereof, are subject to site plan approval by the Planning Board: (15) The renting of not more than three (3) rooms in an owner-occupied dwelling for lodging and serving of breakfast to not more than six (6) casual and transient roomers, provided that the renting of such rooms for such purpose is clearly incidental and subordinate to the p~incipal use of the dwelling... ,, Southold Town Board of Appeals-4- April 13, 1989 Regular Meeting (Appl. No. 3785 - NINE & ORS, decision, continued:) 6. For the record it is noted that the dwelling is and has since the filing of this application been under the ownership of Raymond F. Nine and Charles J. Zahra and has been occupied as a single-family residence by persons other than the owners and other than Pamela Nine. 7. On February 27, 1989, the application was primarily amended to include Pamela Nine as an applicant and to supplement the "Bed-and-Breakfast Agreement" provision that "Miss Nine will upon approval of this application, and at a later date come into title, occupy the premises, and operate a Bed & Breakfast." 8. One of the requirements for the grant of a Special Exception for a Bed and Breakfast. ~.stablishment is owner-occupancy. 9. The record shows that none of the owners reside at the subject premises, and that the person who would come into title and occupy the premises upon approval of the Bed and Breakfast is not presently an owner. 10. The intent and purpose of the Bed and Breakfast use under the zoning code is clearly as a use subordinate and incidental to the principal dwelling use with owner-occupancy. It is apparent in this application that the proposed Bed and Breakfact use is not subordinate and incidental to the principal use and is-not owner-occupied. 11. Also, there is clear distinction between a party to a "bed-and-breakfast agreement," a party to a contract of sale, and the definition of "owner." The Board finds that the party involved in the "bed and breakfast agreement" does not meet the requirements of the statute as an "owner." 12. For the above reasons, the Board finds that it is without authority to grant a Special Exception use where the project does not meet all of the requirements of the Zoning Code {Knadle v. ZBA of Huntington, 121 AD2d 447 (1986); Roginski v. Rose, et al., 63 NY 2d 735 (1984)}. Accordingly, on motion by Mr. Dinizio, seconded by Mr. Grigonis, it was Southold Town Board of Appeals-5- April 13, 1989 Regular Meeting (Appl. No. 3785 - NINE & ORS, decision, continued:) RESOLVED, to DENY WITHOUT PREJUDICE the Special Exception as applied under File No. 3785 in the Matter of the application of RAYMOND NINE, CHARLES ZAHRA and PAMELA NINE. Vote of the Board: Ayes: Messrs. Goehringer, Doyen, Grigonis, Sawicki and Dinizio. This resolution was duly adopted. lk GERARD P. GOEHRINGER, CHAIRMAN STATE OF NEW YORK, COUNTY OF ss.: I; the undersigned, an attorney admitted to practice in the courts of New York State, ~ [] c~,~,~o~ certify that the within ~ BrA.omit has been compared by me with the original and found to be a true and complete copy. state that I am the attorney(s) of record for in the within action; I have read the foregoing and know the contents thereof; the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true. The reason this verification is made by me and not by The grounds of my belief as to all matters not stated upon my own knowledge are as follows: I affirm that the foregoing statements are true, under the penalties of perjury. Dated: coo o.~ ~-h~ 9c:~c.~8 STATE OF NEW YORK, COUNTY OF blJe'~'{ ss.: I, CIIA~.T~ $. ~ being sworn, say: I am m Individual in thc within action; I have read the foregoing ~ and know the contents thereof; the same is true to my own knowledge, except as to ~[~] coroo,a~ the matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true. < the of ~ a corporation and a party in the within action; I have read the foregoing and know the contents thereof; and the same is true to my own knowledge, · · except as to the matters therein stated to be alleged upon information and belief, and as to those matters I believe it to be true. This verification is made by me because the above party is a corporation and I am an officer thereof. The grounds of my belief as to all matters not stated upon my own kn$~vledge are as follows: Sworn to before me on l~n¥ 26, lqo~'a ~vy Pub.lA~ STATE OF NEW YORK, COUNTY OF I, of age and reside at On 19 VIRGINIA MAGINN NM.4ty .P~Jo State of New y 19 ~.q- ~ ork f,~ being sworn, say: lam not a party to the action, am over 18 years l served the within by depositing a true copy thereof in a post-paid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State, addressed to each of the following persons at the last known address set forth after each name: by delivering a true copy thereof personally to each person named below at the address indicated. I knew each person served to be the person mentioned and described in said papers as aparty therein: Sworn to before me on 19 A-C R~B0 R-SO ~ A--C LIO R-~O GR~'A 7' BAY ~mo, randu*m from... Southold Town Board of Appeals TOWN HALL, SOUTHOLD, N.Y. 11971 765-1809 Date: 2/27/89 To: James A. Schondebare, Town Attorney Robert H. Berntsson, Asst Town Att. From: Jer~' §o~,~,:i,~ge, , Z.B.^. Ch~irr..-.n Attached are copies received today from Eric J. Bressler, Esq. concerning the Nine and Zahra Bed and Breakfast Proposal scheduled for a public hearing March 9, 1989. Comments (if any), please. WICKHAM, WICKHAM & BRESSLER, MAIN ROAD, PO. BOX 1424 February 27, 1989 Southold Town Board of Appeals Main Road - State Road 25 Southold, New York 11971 RE: Application for Bed and Breakfast Proposal Property ID: 1000-114-11-20 Gentlemen: In accordance with your request, we enclose the following: 1) Application executed by Charles Zahra, a co-owner and Pamela Nine, the proposed co-owner/occupant/operator. Mr. Nine has been out of town and we ask that you accept his signature from the original~ application. We expect him back this week but are sending the application in the interest of time. 2. A copy of the proposed deed which will be executed and delivered to Miss Nine upon approval of your Board, pursuant to the agreement: Very truly, yours, Eric J~Bre~ssle~r EJB/jtz Enc. TOWN OF SOUTHOLD, NEW YORK APPLICATION FOR SPECIAL EXCEPTION Application No. Date Filed: TO THE ZONING BOARD OF APPEALS, SOUTHOLD, NEW YORK: ~(We),Raymond Nine, Charles Zakra & of New Suffolk Ave.. & Pike ~.. M~]~k, NY Pamela Nine (Residence, House No. and' Street) ~ of Sc,~thold, State of New York 11952 . (516) 298-8260 & {516} 298-4091 (Hamlet, State, Zip Code, Telephone Number) hereby apply to THE ZONING BOARD OF APPEALS for a SPECIAL EXCEPTION in accordance with the ZONING ORDINANCE, ARTICLE III , SECTION 100-30 , SUBSECTION B-16 for the below-described property for the following uses and purposes (and as shown on the attached plan drawn to scale): BED & BRF~T A. Statement of Ownership and Interest. C~le~ Zahra m~nd Ra~nond Nine ~(are) the owner(s) of property known and r~ferred to as New Suffolk Avenue, Mattituck, Nc~wYork 11952 (House No., Street, Hamlet) pamela Nine, will upon approval of this application, be a r~ord c~wner pursuant to deed* identified on the Suffolk County Tax Maps as District ]000, Section 114 , Block 11 , Lot(s) 20 , which is not (is) on a subdivision Map (Filed N/A , "Map of N/A "Filed Map No. N/A . , and has been approved by the Southold Town Planning Board on N/A as a [Minor] [Major] Subdivision). The above-described property was acquired by the owner on Jtme 5, 1986 B. The applicant alleges that the approval of this exception would be in harmony with the intent and purpose of said zoning ordinance and that the proposed use conforms to the standards prescribed therefor in said ordinance and would not be detrimental to property or persons in the neighborhood for the following reasons: pef~t~ed under Zoning Code. Pamela Nine will upon approval of this application, cc~ne into title, occupy the prea~ses and o~rate a Bed & Breakfast. C. The property which is the subject of this application is zoned [x ] is consistent with the use(s) described in the Certificate of Occupancy being furnished herewith. [ ] is not consistent with the Certificate of Occupancy being furnished herewith for the following reason(s): and [ ] is vacant land. COUNTY OF SUFFOLK) /' / ~ ~ ~ --^ %lgnature~ries za~a, Pamel~ine** ZB2 (rev. 2/6/86) *a co~ of ~icn is CONSULT YOUR LAWYER BEFORE SIGNING THIS INSTRUMENT--THIS INSTRUMENT SHOULD BE USED BY LAWYERS ONLY. TI-tIS INDF_.NTt/RF~ made the day of , nineteen hundred and eighty-nine BETWEEN RAYMOND F. NINE, residing at no# New Suffolk Avenue, Mattituck, New York of the first part. and PAM~rA A. NINE, residing at no# New Suffolk Avenue, Mattituck, New York, )istrict .~000 Cection [14 3lock Il party of the second part, WITNF..~I~-TI-t, that the party of the first part, in consideration of Ten Dollars and other valuable consideration paid by the party of the second part, does hereby grant and release unto the party of the second part, the heirs or successors and assigns of the party of the second part forever, undivided one-quarter interest ALL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being~2Ol~ at blattituck, 'IY:xon of Southold, Cormty of Suffolk and State of New York, bounded and described as follows: BEGINNING at a point on the northerly side of New Suffolk Avenue distant easterly 572.20 feet as m~asured along New Suffolk Avenue frcta the easterly side of Main Road (NYS Route 25); running THENCE North 2° 18' 40" East, 200.00 feet; TH~IqCE South 86° 09' 00" East 113.00 feet; THENCE South 2° 18' 40" West, 200.00 feet to the northerly side of New Suffolk Avenue; TH~IqCE North 86° 09' 00" West 113.00 feet to the point or place of BEGINNING. BEING and intended to be the samm premises described in Liber 5126, Paqe 181 conveyed to Evelyn K. Reeve who dies 1/18/86, testate, a resident of Suffolk County. Letters testamentary dated 2/20/86 issued to William Wickham, as Executor. This conveyance is subject to the conditions of agreement. TAX MAP )ESIGNATION )isl. °frs): TOGETHER with all right, title and interest, if any, of the party o£ the first part in and to any streets and roads abutting the above described premises to the center lines thereof; TOGETHER with the appurtenances and all the estate and rights of the party of the first part in and to said premises; TO }lAVE AND TO HOLD the premises herein graoted unto the party of the second part, the heirs or successors and assigns of the party of the second part forever. AND the party of the first part covenants ttmt the party of the first part has not done or suffered anything whereby the said premises have been encumbered in any way whatever, except as aforesaid. AND the patty ol the first part, in compliance with Section 13 of the Lien Law, covenants that tbe party ol~ the first part will receive the consideration for this conveyance and xvill hold the right to receive such consid- eration as a trust fund to be applied first for the purpose of paying the cost of the improve~nent and will apply the same first to the payment of the cost of the improvement before using any part of the total of the same for any other purpose. The vtord "party" shall be construed as if it read "parties" whenever the sense of this indenture so requires. IN WITNESS WHEREOF, the part7 of the first part has duly executed this deed the day and year first above written. EPORTS, 2d SERIES and sell the entire prem- ce, New York County, as judgment, Supreme Court, r, J.), entered February 2, LERIN and WAL~CH, JJ., Supreme Court, New York ', unanimously reversed, on tition is granted, and the and sell the entire prem- ~ce, New York County, as judgment, Supreme Court, 'uary 2, 1984, without costs KASPER v TOWN OF BROOKHAVEN [142 AD2d 213] 213 ALAN KASPER, Appellant, v TowN OF BROOKHAVEN et al., Respondents. Second Department, December 5, 1988 SUMMARY APPEAL from a judgment of the Supreme Court (Lester E. Gerard, J.), entered February 6, 1987 in Suffolk County, which granted a motion by defendants for summary judgment and declared that Town of Brookhaven Code § 85-411 is constitu- tional. H~ADNOTF.,S Municipal Corporations -- Zoning -'7 Rental Apartments in Owner. Occupied Homes -- Validity of Ordinance 1. A town may validly enact a local law which, while providing for the issuance of permits to a restricted number of single-family homeowners for the purpose of creating and maintaining accessory rental apartments within their homes, limits the availability of those accessory apartment permits, and consequently the financial benefits Which flow therefrom, to only those homeowners who also occupy their homes. The ordinance did not exceed the legislative powers granted to the town in Town Law § 261; the town possessed broad zoning authority pursuant to Municipal Home Rule Law § 10 and, therefore, could enact laws which supersede the Town Law. Municipal Corporations -- Zoning -- Rental Apartments in Owner- Occupied Homes -- Constitutionality of Ordinance 2. A town may constitutionally enact a local law which, while providing for the issuance of perrnits to a restricted number of single-family homeown. ers for the purpose of creating and maintaining accessory rental apartments within their homes, limits tlie availability of those accessory apartment permits, and consequently the financial benefits which flow therefrom, to only those homeowners who also occupy their homes; the law did not draw an irrational distinction between owners who occupy their homes and those who do not, since a strong presumption of constitutionality attaches to zoning legislation and the classification in question is rationally related to the permissible goals of the legislation, viz., alleviating the growing shortage of affordable housing within the town while at th~ same time providing financial relief to those homeowners who may be of modest means and who will be better able to retain ownership of their residences and to maintain them in aesthetically acceptable condition by leasing the available, unused living space in their homes. Given the limited number of permits available, permitting nonoccupying homeowners to create and maintain accessory apartments would deny others of lesser financial means the opportunity to augment their income. Mere disparate treatment is insufficient to invalidate the legislation in question, which has no exclusionary purpose' or effect, and which does not diminish the property of nonoccupying owners so as to constitute a confiscation. Municipal Corporations -- Zoning -- Rental Apartments in Owner- Occupied Homes -- Permissible Regulation of Property User 3. A town may lawfully enact a local law which, while providing for the 214 142 APPELLATE DIVISION REPORTS, 2d SERIES issuance of permits to a restricted number of single-family homeowners for the purpose of creating and maintaining accessory rental apartments within their homes, limits the availability of those accessory apartment permits, and consequently the financial benefits which flow therefrom, to only those homeowners who also occupy their homes, and such law does not impermis- sibly regulate the user of the property rather than the use of the property, since the law does not attach a personal condition to any individual landowner, nor is it unrelated to the use of the property within the town. The law constitutes a permissible accessery-use zoning provision and an accessory use (i.e., a use incidental to and occasioned by the principal use of the premises) by its very nature ordinarily attaches to the occupancy of the premises rather than to the mere ownership thereof, so that the owner of a residence typically must occupy the premises in order to take advantage of the benefits offered by accessory-use legislation. Municipal Corporations -- Zoning -- Rental Apartments in Owner- Occupied Homes -- Propriety of Summary Judgment 4. In an action testing the constitutionality of a zoning ordinance which provides for the issuance of permits to a restricted number of single-family homeowners for the purpose of creating and maintaining accessory rental apartments within their homes and limits the availability of such permits to only those homeowners who also occupy their homes, inasmuch as it has been established as a matter of law that the owner-occupancy requirement serves the permissible legislative purpose of providing occupying homeown- ers of modest means with additional income, the only factual issue open to debate concerns whether the requirement in question is the wisest and most efficient legislative vehicle for accomplishing the desired end, and that is an inquiry from which the courts are excluded; accordingly, summary judgment was properly granted declaring the subject ordinance constitutional. TOTAL CLIENT.SERVICE LIBRARY® REFERENCES By the Publisher's Editorial Staff AM Jua 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 126 et seq.; § 374 et seq.; Zoning and Planning, §§ 7, 8. CLS, Municipal Home Rule Law § 10; Town Law § 261. APPEARANCES OF COUNSEL · Shapiro, Wolinsky & Parnell (Alan M. Wolinsky of for appellant. Allen I. Sak, Town Attorney (Barbara M. Weltsek of sel), for respondents. OPINION OF THE.COURT SULLIVAN, J. '~ [1-3] This appeal presents for our resolution the question whether the Town of Brookhaven may constitutionally enltCi REPORTS, 2d SERIES her of single-family homeowners for ~ accessory rental apartments within those accessory apartment permits, which flow therefrom, to only those es, and such law does not impermis- rather than the use of the property, 'sonal condition to any individual se of the property within the town. essory-use zoning provision and an ~d occasioned by the principal use of rily attaches to the occupancy of the rship thereof, so that the owner of a ~mises in order to take advantage of ~slation. -- Rental Apartments in Owner- Summary Judgment onality of a zoning ordinance which a restricted number of single-family ~g and maintaining accessory rental its the availability of such permits to py their homes, inasmuch as it has at the owner-eocupancy requirement ,se of providing occupying homeown- ~come, the only factual issue open to · nt in question is the wisest and most shing the desired end, and that is an ~ded; accordingly, summary judgment iect ordinance constitutional. 2IBRARY~ REFERENCES ~ Editorial Staff cations, Counties, and Other et seq.; § 374 et seq.; Zoning ~w § 10; Town Law § 261. ', OF COUNSEL fAlan M. Wolinsky of counsel), (Barbara M. Wel~ek of coun- THE COURT our resolution the question of in may constitutionally enact a KASPER v TOWN OF BROOKHAVEN [142 AD2d 213] 215 local law which, while providing for the issuance of permits to a restricted number of single-family homeowners for the purpose of creating and maintaining accessory' rental apart- ments within their homes, limits the availability of these accessory apartment permits, and consequently the financial benefits which flow therefrom, to only those homeowners who also occupy their homes. For the reasons which follow, we conclude that it may. I On December 7, 1982, by Local Laws, 1982, No. 12 of the Town of Brookhaven, a new article XLI was added to the Town Code of the Town of Brookhaven. This enactment,' entitled "Accessory Uses" provides for the maintenance of a single-bedroom apartment within a home situated in various specified single-family residence zoning districts upon the obtaining of a special permit. The purpose and intent underly- ing the law are expressly set forth in Town of Brookhaven Code § 85-411 (A) as follows: "to provide the opportunity and encouragement for the development of small rental housing units designed, in particular, to meet the special housing needs of single persons and couples of low and moderate income, both young and old, and of relatives of families presently living in the Town of Brookhaven. Furthermore, it is the purpose and intent of this local law to allow the more efficient use of the town's existing stock of dwellings to provide economic support of present resident families of limited income and to protect and preserve property values" (emphasis sup- plied). To achieve these goals while maintaining the single- family character of the residential districts affected, Town of Brookhaven Code § 85-411 (B) (12) limits the number of acces- sory apartments within any given area: "Limitations. No permit shall be issued for an accessory apartment in the event that five percent (5%) or more of the lots within a~one-half- mile radius of the subject parcel contain accessory apart- ments. The Accessory Apartment Review Board may vary this requirement when, due to sparsity of development in the surrounding area, it is not practicable to maintain the five- percent cap on accessory apartments. This subsection shall not apply to applications filed within six (6) months of the effec- tive date of this local law where the application is to legalize an accessory apartment preexisting the effective date of this local law." The three-year, renewable accessory apartment permits may 216 · 14g APPELLATE DIVISION REPORTS, 2d SERIES b~ acquired by homeowners upon the satisfaction of numerous requirements regarding, inter alia, area (Town of Brookhaven Code § 85-411 IB] [3]), water and sewer facilities (Town of Brookhaven Code § 85-411 [B] [6]), and off-street parking (Town of Brookhaven Code § 85-411 [B] [7]). Moreover, Brookhaven Town Code § 85-411 (B) (1) sets forth an owner occupancy requirement as follows: "Owner occupancy required. The own- er(s) of the lot upon which the accessory apartment is located shall reside with},~7~he principal dwelling building." II The plaintiff is the alleged owner of a parcel of property which has been improved with a single-family home and which is situated within one of the zoning districts to which the accessory apartments law applies. He does not occupy the residence, but resides elsewhere in the Town of Brookhaven. He avers that he applied to the Accessory Apartment Review Board for a permit to maintain an accessory apartment in 1986, but that his application was denied because he did not~ occupy the subject premises. He thereafter commenced the instant action seeking a declaration that Town of Brookhaven Code § 85-411 is void and unconstitutional insofar as it re- quires owner occupancy before an accessory apartment permit may be issued. The Supreme Court, Suffolk County (Gerard, J.), granted a motion by the defendants for summary judg- ment and declared the law constitutional. We now affirm. The plaintiff presently maintains that the law (1) exceeds the legislative powers granted to the town in Town Law § 261; (2) draws an irrational distinction between owners who occupy their homes and those who do not, treating the two groups differently in violation of the plaintiff's rights to equal protec- tion and due process of law; and (3) impermissibly regulates the users of the property rather than the use of property. We find none of these contentions persuasive. III [1] With regard to the first of these arguments, it is clear that the town did not exceed its legislative authority in enacting Brookhaven Town Code § 85-411. We have repeatedly noted in matters similar to that at bar that towns may enact zoning laws pursuant to the broad powers granted them in Municipal Home Rule Law § 10 in addition to the more limited powers set forth in the Town Law (see, Weinstein KASPER v TOWN OF BR Enters. v Town of Kent, 135 A Matter of Torsoe Bros. Constr. nity Appearance Bd. of Revi Assocs, v Hope, 116 AD2d 704 of Sherman v Frazier, 84 -~D Matter of Sherman v Frazier this issue. There, in an opini upheld the validity of a local the Town of Babylon and wi Town of Brookhaven Code § rejected the claim that the Tc the limited legislative authori the Town Law. Rather, we co~ broad zoning authority purs~ Law § 10 and therefore could Town Law. In the matter before us, the is appropriate. The minutes preceded the adoption of Tow demonstrate that the accesso: patterned after the legislation Frazier (supra) because the challenge and it is in place Babylon]". Moreover, the en~ herein required no greater 1 which was exercised by the · Sherman v Frazier (supra). H~ Town of Brookhaven has exc, provided by the Town Law i Code § 85-411, an issue which ~ clear that the adoption of the e is authorized by the Municipal [2] Equally unavailing is the law is violative of his equal pr( in that it arbitrarily deprives h additional rental income from does not occupy the home whi lished that a strong presumpti( to zoning legislation, so that provision on this basis must proof beyond a reasonable dou · KASPER v TOWN OF BROOKHAVEN [142 AD2d 213] 217 Enters. v Town of Kent, 135 AD2d 625, lv denied 72 NY2d 801; Matter of Torsoe Bros. Constr. Corp. v Architecture & Commu- nity Appearance Bd. of Review, 120 AD2d 738; North Bay Assocs. v Hope, 116 AD2d 704, lv denied 68 NY2d 603; Matter of Sherman v Frazier, 84 AD2d 401). Indeed, our decision in Matter of Sherman v Frazier (supra) is virtually dispositive of this issue. There, in an opinion by former Justice Lazer, we upheld the validity of a local law which had been enacted by the Town of Babylon and which in many respects parallels Town of Brookhaven Code § 85-411. In so doing, we flatly rejected-the claim that the Town of Babylon could not exceed the limited legislative authority granted by the provisions of the Town Law. Rather, we concluded that the town possessed broad zoning authority pursuant to Municipal Home Rule Law § 10 and therefore could enact laws which supersede the Town Law. In the matter before us, the application of similar reasoning is appropriate. The minutes of the public hearing which preceded the adoption of Town of Brookhaven Code § 85-411 demonstrate that the accessory apartments law was closely patterned after the legislation upheld in Matter of Sherman v Frazier (supra) because the latter "has withstood a court challenge and it is in place and working [in the Town of Babylon]''. Moreover, the enactment of the law challenged herein required no greater legislative authority than that which was exercised by the Town of Babylon in Matter of Sherman v Frazier (supra). Hence, regardless of whether the Town of Brookhaven has exceeded the legislative authority provided by the Town Law in enacting Brookhaven Town Code § 85-411, an issue which we presently do not decide, it is clear that the adoption of the accessory apartments legislation is authorized by the Municipal Home Rule Law. IV [2] Equally unavailing is the plaintiffs contention that the law is violative of his equal protection and due process rights in that it arbitrarily deprives him of the opportunity to obtain additional rental income from his property merely because he does not occupy the home which he owns. It is firmly estab- lished that a strong presumption of constitutionality attaches to zoning legislation, so that the party challenging a zoning provision on this basis must overcome the presumption by proof beyond a reasonable doubt (Asian Ams. for Equality v 218 14'2 APPELLATE DIVISION REPORTS, 2d SERIES ~och, 72 NY2d 121; Marcus Assocs. v Town ~f Huntington, 45 NY2d 501; Tilles Inv. Co. v Town of Huntington, 137 AD2d 118). A classification scheme such as the one at bar which is created by zoning legislation will pass constitutional muster if it is "adopted for a legitimate governmental purpose" (Asian Amz. for Equality v Koch, supra, at 132) and is 'treasonably related to some manifest evil which, however, need only be reasonably apprehended" (Lighthouse Shores v Town of lslip, 41 NY2d 7, 11). Therefore, "if on any interpretation of the facts known or reasonably to be perceived, the zoning measure falls within the embrace of the town's authority to regulate property as a means of promoting the general welfare of the community * * * it is insulated from attack" (Town of Hunt- ington v Park Shore Country Day Camp, 47 NY2d 61, 66, rearg denied 47 NY2d 1012). There can be no dispute that Town of Brookhaven Code § 85-411 distinguishes between those homeowners who occupy their premises and those who do not. It accords these two groups different treatment by providing owner-occupants with an opportunity to obtain rental income while failing to offer a similar opportunity to nonoccupying owners, many of whom are already leasing their homes to outside tenants. Hence, the focus of our inquiry must of necessity come to rest upon whether the classification is rationally related to the permissi- ble goals of zoning legislation. While the statement of purpose found in Town of Brookhaven Code § 85-411 (A) emphasizes the importance of supplying moderately priced, desperately needed housing in a small and unobtrusive rental setting, it attaches equal significance to providing single-family home- owner-occupants of limited means, who must continue to pay the carrying costs on their homes, with additional income so as to ameliorate their financial burdens. We discern nothing improper in the goal of alleviating the growing shortage of affordable housing within the town while at the same time providing financial relief to those homeowners who may be of modest means and who will be better able to retain ownership of their residences and to maintain them in aesthetically acceptable condition by leasing the available, unused living space in their homes. Similarly, we perceive nothing arbitrary or irrational in the inclusion of an owner-occupancy requirement within Town of Brookhaven Code § 85-411 in order to achieve this goal. In- deed, only a finite number of accessory apartments are autho- rized by the law so as not to disrupt the single-family home KASPER v TOWN OF BF character of the zoning dis limitation, it is not altogethe pying homeowners who mai~ ment purposes allowed to t: apartments legislation, many financial means would be d~ ment their income with ren challenged legislation clearly a scheme, for the owners wt~ left without the moneys nee¢ residences and to maintain th nonoccupying owners such as increased income from additi~ creating multiple rental prot- The Town of Brookhaven had tion undesirable and legitim~ rence by inserting an owner accessory apartments law. He distinction drawn between tl homes and those who do not k the legitimate purposes of the Town of Huntington v Park NY2d 61, supra; Ilasi v City of The decision in Ila~i v City support for the foregoing conc~ its zoning ordinance to both le tion of some 100 homes situat~ for single-family residential u~ verted to two-family use. Ho~ family use, the city permitt~ existence at the time of the a day following the enactment o sought a certificate of complia newly constructed sing]e-famil~ lng. The certificate was denie have the amendment declared that it treated two similarly s unequally. A majority of the summary disposition finding tl~ and ordered a trial on the rea~ observing that a zoning provisi( ally infirm by mere reason ¢ disparate treatment: "It]hat th~ the economic advantage of son ngton, 45 37 AD2d which is muster if ?" (Asian asonably only be oflslip, n of the regulate e of the ~f Hunt- ;6, rearg ,n Code occupy .~se two ts with offer a whom ce, the : upon rmissi- urpose msizes ~rately lng, it home- ;o pay me so ~thing ~ge of time be of rship [cally lying ~ the rn of · In- ~tho- omc KASPER v TOWN OF BROOKHAVEN [142 AD2d 213]' 219 character of the zoning districts affected. In view 'of this limitation, it is not altogether improbable that were nonoccu- pying homeowners who maintain their properties for invest- ment purposes allowed to take advantage of the accessory apartments legislation, many occupying homeowners of lesse~ "Lnancial means would be denied the opportunity to supple- ::.ment their income with rental funds. A major goal of the challenged legislation clearly would be frustrated under such a scheme, for the owners who occupy their homes would be left without the moneys needed to retain ownership of their residences and to maintain them in appropriate fashion, while .nonoccupying owners such as the plaintiff would merely gain increased income from additional tenants, thereby effectively creating multiple rental properties with absentee landlord~. The Town of Brookhaven had the right to find such a situa- tion undesirable and legitimately seek to prevent its occur- rence by inserting an owner-occupancy re~uirement in the accessory apartments law. Hence, it cannot be said that the distinction drawn between those owners who occupy their homes and those who do not bears no rational relationship to the legitimate purposes of the challenged legislation (see, e.g., Town of Huntington v Park Shore Country Day Camp, 47 NY2d 61, supra; Ilasi v City of Long Beach, 38 NY2d 383). The decision in Ila~i v City of Long Beach (supra) provides support for the foregoing conclusion. There, the city amended its zoning ordinance to both legalize and permit the continua- tion of some 100 homes situated in an area zoned exclusively for singie-family residential use that had been illegally con- verted to two-family use. However, to stem the tide of two- family use, the city permitted only those illegal uses in existence at the time of the amendment to continue. On the day following the enactment of the amendment, a landowner sought a certificate of compliance allowing him to utilize his newly constructed single-family home as a two-family dwell- ing. The certificate was denied, and he Commenced suit to have the amendment declared unconstitutional on the ground that it treated two similarly situated classes of homeowners unequally. A majority of the Court of Appeals reversed a summary disposition finding the amendment unconstitutional and ordered a trial on the reasonableness of the amendment, observing that a zoning provision is not rendered constitution- ally infirm by mere reason of the fact that it results in disparate treatment: "[tJhat the reclassification here works to the economic advantage of some individual property owners 220 142 APPELLATE DIVISION REPORTS, 2d SERIES who, as prior violators of the zoning ordinances, may appear undeserving, while withholding a corresponding advantage from prior !aw-abiding homeowners cannot in and of itself be deemed dispositive. 'Every restriction on the use of property entails hardships for some individuai owners. * * "(~fatter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359, 381, app dsmd 409 US 1003)" (llasi v City of Long Beach, supra, at 387-388). Similarly,-L~e decision in Town of Hunting. ton v Park Shore "Country Day Camp (supra) also illustrates the principle that mere disparate treatment is not a sufficient basis for voiding a zoning provision. In that case, the town zoning ordinance authorized by special exception the creation and operation of tennis courts by private, nonprofit clubs but prohibited com- mercial enterprises from maintaining identical facilities for use by the general public. The defendant day camp con- structed a total of 14 tennis courts on the property adjacent to its nursery school and put them to commercial use for adults generally, advertising the availability of the facilities te~ the general public. The town commenced an action to have sev- eral of~the tennis courts removed and any future commercial use permanently enjoined, and the day camp counterclaimed for a declaration that the zoning ordinance was unconstitu- tionally discriminatory. The Court of Appeals upheld the validity of the ordinance, concluding that the distinction drawn between private and commercial operation of tennis courts was rationally related to the goal of maintaining the residential character of the affected district. It observed that the town could reasonably conclude that commercially owned facilities posed a greater risk of producing such undesirable results as increases in crowds, noise and traffic, and that owners of a commercial facility might be less likely to main- tain the appearance of their property in times of economic adversity. In the matter before us, the distinction created by Town of Brookhaven Code § 85-411 between homeowners who occupy · their homes and those who do not is no less rationally related to a legitimate goal of zoning than was the distinction held valid by the Court of Appeals in Town of Huntington v Park Shore Country Day Camp (supra). As noted previously, the express purpose of the accessory apartments law is to aid occupying homeowners in retaining and maintaining their properties while answering the need for affordable rental accommodations without disturbing the single-family-resi- KASPER v TOWN OF B dence character of the aff~ owner-occupancy requiremer town's legislative strategy ratiohal relationship to the haven Code §85-411. Gix*e~ determine whether the legis] or most expeditious means ~ (see, Marcus Assocs. v Tow supra; Tilles Inv. Co. v Tou supra). The plaintiff relies upon o Hernpstead (103 AD2d 144, a support his claim that Brook missibly discriminates aga That reliance is misplaced, Hempstead (supra) involved zoning. There, the town ? private developers to const Residence District" to meet ever, the legislation provide( for residence in the district i the town for at least one application. We concluded t quirement was unconstitutio both its purpose and its res affordable housing for senio~ able within the town, a fact ing the durational residenc entry to a "Golden Age Re~, found that the durational ~ prevented [nonresident seni Town of North Hempstead, Hempstead, supra, at 147). that "the durational resider relationship to the laudable affordable housing for seni( nance creating the 'Golden / Town of N.. Hempstead, supr, The circumstances of th( contrast to those in Allen v the owner-occupancy requir~ ally related to a legitimate ven Code §85-411 has no Indeed, the accessory apart~ ear ~ge .be o£ at KASPER v TOWN OF BROOKHAVEN [142 AD2d 213] 22l dence character of the affected districts. Inasmuch as the owner-occupancy requirement is an integral component of the town's~,legislative strategy to achieve this goal, it bears a rational relationship to the stated purpose of Town of Brook- haven Code §85-411. Given this fact, it is not for us to determine whether the legislation herein represents the wisest or most expeditious means for accomplishing the stated goal (see, M~,~us Assocs. v Town of Huntington, 45 NY2d 501, supra; T~iles Inv. Co. v Town of Huntington, 137 AD2d 118, supra). The plaintiff relies upon our decision in Allen v Town of N. tlempstead (103 AD2d 144, appeal withdrawn 63 NY2d 944) to support his claim that Brookhaven Town Code § 85-411 imper- missibly discriminates against nonoccupying homeowners. That reliance is misplaced, however, as Allen v Town of N.. ttempstead (supra) involved a classic example of exclusionary zoning. There, the town had enacted legislation enabling private developers to construct housing in a "Golden Age Residence District" to meet the needs of senior citizens. How- ever, the legislation provided that senior citizens who applied for' residence in the district had to have legally resided within the town for at least one year prior to the date of their application. We concluded that this durational residency re- quirement was unconstitutional because it was exclusionary in both its purpose and its result. Indeed, because appropriate, affordable housing for senior citizens was not generally avail- able within the town, a fact precluding outsiders from fulfill- ing the durational residency requirement necessary to gain entry to a "Golden Age Residence District" development, we found that the durational residency requirement "effectively prevented [nonresident senior citizens] from moving to the Town of North Hempstead, altogether" (Allen v Town of N. Hempstead, supra, at 147). Moreover, we further concluded that "the durational residency requirement bears no rational relationship to the laudable goal of providing appropriate and affordable housing for senior citizens, reflected in the ordi- nance creating the ~Golden Age Residence Districts' "(Allen v Town of N. Hempstead, supra, at 148). The circumstances of the present case stand in marked contrast to those in Allen v Town of N. Hempstead (supra), for the owner-occupancy requirement challenged herein is ration- ally related to a legitimate goal of zoning. Town of Brookha- yen Code §85-411 has no exclusionary purpose or effect. Indeed, the accessory apartments law neither discourages nor 222 ' 142 APPELLATE DIVISION REPORTS, 2d SERIES l~recludes any individual or group from taking up residence within the town. In fact, the owner-occupany requirement of the accessory spartment ordinance encourages owners to live in the town. Hence, the plaintiff's claim of arbitrary discrimi- nation is unavailing. Nor can we agree with the plaintiff's related claim that he was deprived of the opportunity to obtain additional rental income withou! -~ue process of law by virtue of Town of Brookhaven CodL~§ 85-411. It is quite clear that the plaintiff- need only occupy his home in order to apply for an accessory apartment permit. However, even if he fails to do so, the only "deprivation" which he can be said to suffer is the inability to obtain more than one rental fee from the premises, which does not approach such a diminution in the property's value as to constitute a confiscation. Indeed, such additional moneys would constitute nothing more than" 'pecuniary profits of the individual [which] must in the long run be subordinated to the needs of the community'" (Ilas£ r City of Long Beach, 38 NY2d 383, 388, supra). [3] The plaintiff further contends that Brookhaven Town Code § 85-411 impermissibly regulates the users of property rather than the use thereof insofar as it requires that a homeowner occupy his home in order to obtain an accessory apartment permit. We do not agree. While it is generally true that zoning has as its purpose the regulation of land and not landowners (see, FGL & L Prop. Corp. v City of Rye, 66 NY2d 111), it is clear that, as a practical matter, many zoning laws extend beyond the mere regulation of property to affect the owners and users thereof. A case in point is Maldini v Ambro (36 NY2d 481, appeal dismissed and cert denied 423 US 993). There, the Town of Huntington created a "Retirement Com- munity District" so that nonprofit corporations could provide appropriate accommodations for the elderly. The legislation was challenged on the basis that it was discriminatory be- cause, inter alia, it focused upon the users of the property (i.e., the elderly) rather than upon the use to which the realty was to be put. In rejecting this challenge, the Court of Appeals observed as follows: "[t]hat the 'users' of the retirement com- munity district have been considered in creating the zoning classification does not necessarily render the amendment sus- pect, nor does it clash with traditional 'use' concepts of zoning. KASPER v TOWN OF BR Including the needs of potenti from sensible community pL which,property is to be put. ' illegitimate exercise of the ~c resort to formula, but as in c with surrounding circumstan¢ bler Co., 272 US 365, 387)" (~ 488). In similar fashion, the Toy ately considered, inter alia, ti homeowners and the obvious } community as a whole in em law. Significantly, the legisla~ attach a personal condition t~ is it unrelated to the use of Matter of St. Onge v Donovan Corp. v City of Rye, supra; ~4 NY2d 102). Rather, it constit~ zoning provision. Indeed, the 1~ an accessory use (i.e., a use J the principal use of the premis attaches to the occupancy of ~ mere ownership thereof, so ' typically must occupy the prer of the benefits offered by ac~ City of White Plains v Sassov NY2d 601; Peter Marcy, Inc. v . [4] Finally, the plaintiff ma~ in order to test the accuracy owner-occupancy requirement nance of homes and the avoJ tenants occupying individual d we accept this claim without been established as a matter c requirement serves the permis viding occupying homeowners tional income for use in ret~ dences and maintaining them i regard, the only factual issue cerns whether the owner-occ~ and most efficient legislative end, an inquiry from which tl ingly, the Supreme Court, Su i.e., KASPER v TOWN OF BROOKHAVEN [142 AD2d 213] 223 lncludiEg the needs of potential 'users' cannot be disassociated fr~rn sensible community planning based upon the 'use' to ,.hich property is to be put. The line between legitimate and illegitimate exercise of the zoning power cannot be drawn by resort to L~rmula, but as in other areas of the law, will vary ~.ith suriJunding circumstances and conditions (Euclid v Am- bier Co., 272 US 365, 387)" (Maldini v Arnbro, supra, at 487- aSS). In similar fashion, the Town of Brookhaven has appropri- ately considered, inter alia, the economic plight of occupying homeowners and the obvious benefits which will accrue to the community as a whole in enacting the accessory apartments law. Significantly, the legislation challenged herein does not attach a personal condition to any individual landowner, nor i~ it unrelated to the use of property within the town (cf, Matter of St. Onge v Donovan, 71 NY2d 507; FGL & L Prop. Corp. v City of Rye, supra; Matter of Dexter v Town Bd., 36 NY2d 102). Rather, it constitutes a permissible accessory-use zoning provision. Indeed, the plaintiff fails to comprehend that an accessory use (i.e., a use incidental to and occasioned by the principal use of the premises) by its very nature ordinarily attaches to the occupancy of the premises rather than to the mere ownership thereof, so that the owner of a residence typically must occupy the premises in order to take advantage of the benefits offered by accessory-use legislation (see, e.g.. City of White Plains v Sassower, 97 AD2d 452, lv denied 61 NY2d 601; Peter Marcy, Inc. v Perlman, 92 AD2d 511). [4] Finally, the plaintiff maintains that a trial is necessary in order to test the accuracy of the town's claims that the owner-occupancy requirement will result in the better mainte- nance of homes and the avoidance of excessive numbers of tenants occupying individual dwelling units. However, even if we accept this claim without argument, it nevertheless has been established as a matter of law that the owner-occupancy requirement serves the permissible legislative purpose of pro- viding occupying homeowners of modest means with addi- tional income for use in retaining ownership of their resi- dences and maintaining them in appropriate condition. In this regard, the only factual issue remaining open to debate con- cerns whether the owner-occupancy provision is the wisest and most efficient legislative vehicle for accomplishing this end, an inquiry from which the courts are excluded. Accord- ingly, the Supreme Court, Suffolk County, properly granted ~24 · 142 APPELLATE DIVISION REPORTS, 2d SERIES the defendants' motion for summary judgment and declared that Town of Brookhaven Code § 85-411 is constitutional. Mo~, P. J~, MA~GA~O and Ruslr, JJ., concur. Ordered that the judgment of the Supreme Court, Suffolk County, dated February 6, 1987, is affirmed, with costs. WELL~.VILLE MANOR In the Matter of WELLSVI~.~.~. ~ lant, v DAVID AXELROD, aS State of New York, et al., Y Third Department, SUMI~ APPEAL from a judgment of Connor, J.), entered February ~ proceeding pursuant to CPLR petition to review a determi~ sioner of Health retroactively reimbursement rates. HEAD Health -- Medicaid Reimburseme~ Rates In a proceeding to annul a retroacti ment rates of petitioner residential ~'anted and the matter remitted for tions promulgated by the Department a new facility's Medicaid reimbursem~ 86-2.15 lc]), are inconsistent with the ! 28 requiring prospective Medicaid r~ Public Health Law § 2807 (7) (a) dire rate revisions; the regulations in c~ wording of a statutory provision am since a regulation is subordinate to a not extend to payments made under tion of the amount to be paid uper expertise. TOTAL CLIENT-SERVICE By the Publizhe AM Jug 2d, Welfare Laws, §: CLS, Public Health Law § 28 ANNOTATIOI Supreme Court's views as tion of Medicaid Act (42 US~ 935. APPEARANCI[ O'Connell & Aronowitz (Thc D. Murray of counsel), for appE Memorandum from.... Southold Town Board of Appeals TOWN HALL, SOUTHOLD, N.Y. 11971 765-1809 Date: 2/27/89 To: James A. $chondebare, Town Attorney Robert H. Berntsson, Asst Town Att. From: Jerry Goehringer, Z.B.A. Chairman Attached are copies received today from Eric J. Bressler, Esq. concerning the Nine and Zahra Bed and Breakfast Proposal scheduled for a public hearing March 9, 1989. Comments (if any), please. APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. .JOSEPH H. SAWICKi JAMES DINIZIO, JR. Southold Town Board o£ Appeals HAIN RDAD- STATE RnAD 25 ~BOUTHDLD, L.I., N.Y. 11971 TELEPHONE (516) 766-1809 February 17, 1989 To: Wickham, Wickham & Bressler, P.C. Main Road, P.O. Box 1424 Mattituck, NY 11952 Mr. Rasanond F. Nine New Suffolk Avenue Mattituck, NY 11952 Ms. Pamela A. Nine New Suffolk Avenue Mattituck, NY 11952 Re: Application for Bed and Breakfast Proposal Property ID: 1000-114-11-20 Gentlemen and Ms. Nine: Transmitted herewith is a copy of the Legal Notice as confirmation of the date, time and place of the public hearing in the above matter. As a reminder, we are enclosing a copy of our February 10, 1989 letter concerning completion and return of the Application for the Bed and Breakfast by the owner and occupant of the dwelling in question and by the operator of the proposed Bed and Breakfast Use, which we understand will be used in conjunction with her/his residence to comply with the owner-occupancy requirement at this site. We understand that you will also be furnishing our office with a copy of the deed showing proof of ownership of the premises by all three individuals. Page 2 - February 17, 1989 To: Wickham, Wickham & Bressler, P.C. Mr. Raymond F. Nine and Others Miss Nine, whom we understand will be operating the Bed and Breakfast use as the owner-occupant of the dwelling, must be available at the public hearing for questionning. Yours very truly, GERARD P. GOEHRINGER CHAIRMAN lk Enclosures cc: Town Attorneys' Office Southold Town Board of Appeals . .. . APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR, SERGE DOYEN, JR. JOSEPH H. SAWlCKI JAMES DINIZ[O, JR. February 10, 1989 Eric J. Bressler, Esq. Wickham, Wickham & Bressler, P.C. Main Road, P.O. Box 1424 Mattituck, NY 11952 Re: Appl. No. 3785 - Nine & Zahra (Bed and Breakfast) Dear Eric: This letter will confirm that the following action was taken by the Board of Appeals at our February 9, 1989 Special Meeting: RESOLVED, to set THURSDAY, MARCH 9, 1989 as the date of a public hearing in the Matter of RAYMOND F. NINE, PAMELA NINE and CHARLES ZAHRA for a Special Exception to establish "Bed and Breakfast Use," "an owner-occupied building, other than a hotel, where lodging and breakfast is provided for not more than six casual, transient roomers, and renting of not more than three rooms. Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; County Tax Map District 1000, Section 114, Block 11, Lot 20; and BE IT FURTHER RESOLVED, that the owner and occupant of the dwelling and the operator of the proposed Bed and Breakfast Use complete the attached Special Exception form and return same together with a copy of the deed showing proof of ownership for the same. This resolution was unanimously adopted. Please furnish our office with the requested documents as early as possible to complete the file. A copy of the Legal Notice as published in the L.I. Traveler-Watchman and Suffolk Times will be forwarded to you as confirmation of the time of the hearing in this matter. lk cc: Town Attorneys' Office Y ouN,~ very CHAIRMAN APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWlCKI JAMES DINIZIO, JR. Southold Town Board of Appeals MAIN ROAD- STATE ROAD 25 SDUTHOLD, L.I., N.Y. llCJ?l TELEPHONE (516) 765-1809 TRANSCRIPT OF PUBLIC HEARING SOUTHOLD TOWN BOARD OF APPEALS MARCH 9, 1989 REGULAR MEETING Appl. No. 3785SE - Matter of RAYMOND NINE and CHARLES ZAHRA. Special Exception to the Zoning Ordinance, Article III, Section 100-30B(16) for permission to establish "Bed and Breakfast Use," "an owner-occupied building, other than a hotel, where lodging and breakfast is provided for not more than six casual, transient roomers, and renting of not more than three rooms. Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; County Tax Map District 1000, Section 114, Block 11, Lot 20. Present were: Chairman Gerard P. Goehringer; Member Serge J. Doyen; Member Charles Grigonis, Jr., Member Joseph H. Sawicki, and Member James Dinizio, Jr. Also present were: Board Assistant Linda Kowalski, and approximately 65 persons in the audience. 9:02 p.m. The Chairman opened (reconvened) the public hearing. (For the record, it is noted that the previous hearing on this application was held on October 26, 1988.) CHAIRMAN GOEHRINGER: The next Special Exception is basically what we are granting a rehearing on, and so therefore there is no necessity to continue with the Legal Notice, so I will discontinue (reading) with that; and I'll ask any representative of Mr. Zahra and Mr. Nine, or counsel, if they would like to say anything. Mr. Bressler. ERIC J. BRESSLER, ESQ.: Yes, thank you, representing the applicants. Wickham, Wickham and Bressler, P.C., Main Road, Mattituck, New York. Eric J. Bressler. We are here tonight, as you indicated, Mr. Chairman, on a rehearing on the application for a Special Exception for what's known as a Bed and Breakfast. Tonight I have here with me Charles Zahra, Raymond Nine, and Pamela Nine, the three persons who represent all of the interested people in the property and the Bed and Breakfast. Page 2 - Transcript of Hearing Appl. No. 3785SE - NINE & ZAHRA ZBA March 9, 1989 Regular Meeting MR. BRESSLER (continued): The status of these three individuals is as follows: The property upon which the Bed and Breakfast is sought to be located is currently owned by Raymond Nine and Charles Zahra. Pamela Nine is the daughter of the aforementioned Raymond Nine, and her relationship to the property is as follows. The Board has before it on this application, I believe, a copy of the Agreement for the Operation of a Bed and Breakfast. A careful review of this agreement reveals it serves two functions: (a) it functions as a Contract of Sale with respect to one-half of the interest of Raymond Nine, and I believe I directed the Board's attention to that particular provision of the Contract in response to the Board's latest correspondence which expressed a concern that there was no Contract of Sale. I believe that this misunderstanding may have arisen from the fact that the Contract of Sale is contained as a part of the Agreement to operate the Bed and Breakfast, and did not take the form of a Standard NYDTU Form of Contract of Sale for the property. Nevertheless, a review of that Contract does indicate that there is an agreement by the parties to convey one-half of the interest of Raymond Nine to Pamela Nine, contingent, of course, on the Board's action on the application tonight. The second portion of that agreement, of course as indicated by the title, relates to the operation of the Bed and Breakfast in accordance with the Southold Town Code, both -- in the Zoning Code, both before and after the amendment since in this particular zone there is not a difference between the former Code and the present Code. Now, pursuant to that portion of the agreement, Pamela Nine again contingent, of course, upon your approval, Pamela Nine is to come into title and she is to move in, occupy and operate the Bed and Breakfast in accordance with the provisions of the Town Zoning Ordinance. The proposed deed has been submitted to the Board, and I will represent to the Board that the applicant, Raymond Nine, is prepared to execute and deliver that instrument of conveyance, if and when the application is approved, thereby putting Pamela Nine into title, thus Ray Nine, Charles Zahra, and Pam Nine are or will be the owners, and Pam Nine, the operator, will be the occupant of the proposed Bed and Breakfast, thereby satisfying the dictates of the Zoning Ordinance. Page 4 - Transcript of Hearing Matter of NINE & ZAHRA - Appl. No. March 9, 1989 ZBA Regular Meeting 3785 MR. BRESSLER (continued): a place to live on her own. I'm sure as everybody is aware, on the Board and in this room, this presents a very great problem for the young people of Southold Town. And I think that this particular application affords her an opportunity to move out of the home to establish a home on her own in an economically viable means which would otherwise not be available to her. I think that this type of activity ought to be encouraged. I think that it is a proper incident of the growth of this town, and I think that you'd be doing everyone a grave disservice to turn down this particular application. The property location is ideally suited for a Bed and Breakfast. It is within walking distance of the central area of the Hamlet of Mattituck, and I think it presents a unique opportunity to utility the provisions that have been placed in the Zoning Ordinance. At this time, I would like Pam Nine to step up to the mike over there. MR. BRESSLER: Ok, would you tell the Board your name, address and your age, please? PAMELA NINE: Pam Nine and I'm 21 and I live at 855 New Suffolk Avenue. MR. BRESSLER: With whom to you live with? MISS NINE: My parents. MR. BRESSLER: And do you feel now. that it's time to move out and look around for someplace to live? MISS NINE: Definitely. I've looked around, but I can't afford anyplace around here. It's very expensive. MR. BRESSLER: And have you currently entered into an agreement with Ray and Charlie with respect to the property next door? MISS NINE: Yes, I have. MR. BRESSLER: And I've correctly described that agreement to the Board? MISS NINE: Yes. MR. BRESSLER: And if the Board were to grant this Special Exception and permit this Bed and Breakfast, what would you to at that point? MISS NINE: I would live there and run it. MR. BRESSLER: You would run the Bed and Breakfast? MISS NINE: Yes. Page 9 - Hearing Transcript Matter of NINE & ZAHRA Appl. No. 3785 March 9, 1989 ZBA Regular Meeting MR. BRESSLER, continued: yes. If they didn't change the parking and they didn't change anything else. Absolutely. You have a preexisting house and you sell it to someone else, it's preexisting. So that's the answer to your question. Thank you. CHAIRMAN: Thank you. We're going to do something a little different at this particular point. We do have opposition on this, and I'm going to ask for the -- and I realize that a great amount of you have come for the last hearing -- it's just that we have been up here a little better than an hour and a half, and we would really like to take approximately two minutes recess before we hear opposition if you don't mind. MR. BRESSLER: Could we bargain for a minute and a half, Mr. Chairman. CHAIRMAN: I'll make that motion. MEMBER SAWICKI: Second. Motion was made by Mr. Goehringer, seconded by Mr. Sawicki, to temporarily recess for approximately two minutes. Vote: Ayes: All. 9:35 p.m. Hearing reconvened. On motion by Mr. Goehringer, seconded by Mr. Grigonis, the meeting reconvened. Vote: Ayes: All. CHAIRMAN: Is there anyone wishing to speak in favor of this application? I notice Mr. Bressler is not in the room. CHARLES ZARRA: He'll be right back. He went to the men's room. CHAIRMAN: Is there any opposition on this application? Mr. DeReeder? JOHN DeREEDER: Yes. My name is John DeReeder. I am an adjacent property owner to the subject premises. The application is before you for - personal affairs have kept me from addressing this application, with all consideration, I feel it warrants. I don't believe this is a simple application as Mr. Bressler has it appear. My family and I have not yet been able to meet with our attorney regarding this new application. I request of this hearing tonight to afford me an opportunity to consult with our attorney, and subsequently prepare my comments to the Board. I further request that my opportunity be heard, avoids the second Thursday of the month, so that our attorney who has advisory obligations with another municipality on that night- he won't be able to attend the hearings should he deem his attendance here to be proven to be necessary. Thank you. CHAIRMAN: Thank you. Mr. Bressler, a rebuttal? Page 11 - Transcript of Hearing Appl. No. 3785SE - NINE & ZAHRA ZBA March 9, 1989 Regular Meeting CHAIRMAN: Yes. Ok. Hearing no further comment on this hearing, I'll make a motion recessing this hearing to the end of the agenda this evening in order -- BOARD'S ASSISTANT L. KOWALSKI: At the end of the last hearing. CHAIRMAN: Yes, after the last hearing, for the purpose of dealing with that particular issue of a recess. And I'll make that a motion, gentlemen. MEMBER GRIGONIS: Second. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis, Doyen, Sawicki and Dinizio. This resolution was unanimously adopted. The hearings following were Browers Woods #3829 at 9:43 p.m. until 11:10 p.m. which were prepared under separate cover. See transcript of Nine and Zahra Bed and Breakfast on page 12 hereof for continuation of hearing at 11:10 o'clock p.m. (Continued on Page 12) Page 12 - Transcript of Hearing Appl. No. 3785SE - NINE & ZAHRA ZBA March 9, 1989 Regular Meeting 11:10 p.m. On motion by Mr. Goehringer, seconded by Mr. Grigonis, to reconvene the hearing in the Matter of RAYMOND NINE, CHARLES ZAHRA AND PAMELA NINE under Appl. No. 3785SE at this time. Vote: Ayes: All. CHAIRMAN GOEHRINGER: Mr. DeReeder, the Board would like to know the name of your attorney if you so engaged him or her. JOH~ DeREEDER: His name is Joseph R. Attonito, Esq., 227 Middle Country Road, Smithtown, New York. BOARD ASSISTANT L. KOWALSKI: How do you spell Attonito please. MR. DeREEDER: A-t-t-o-n-i-t-o. CHAIRMAN: I'm sorry. We didn't mean to cut you off. What did you say, the Firm name of what? MR. DeREEDER: Scheyer, Jellenik and Attonito. They're at 227 Middle Country Road, Smithtown. Phone 265-8500. CHAIRMAN: Do you plan at the next hearing, assuming when we set this up if we so choose to give you the recess, to present any new information that you might have concerning this hearing, or do you intend to-- I don't like to use this word -- embellish what you've said before, but restate what you said before? MR. DeREEDER: Mr. Chairman, there were some things that happened since we heard this affair. I think we are all aware of them: Number One, there is a suit filed against this Board. Frankly, it's beyond my understanding as a layman to know just what these changes mean. As well there has been a change in the Master Plan. Despite what Mr. Bressler says, there is a change in this ordinance regarding this property. And I'm -- it's just beyond my understanding of the law as a layman to confidently say that what I've said is sufficient, or whether something needs restating, or something new should be brought to light. CHAIRMAN: Thank you. Mr. Bressler, can I ask you what the nature of the lawsuit is going to be assuming we close this hearing and render a decision favorably in your behalf? MR. BRESSLER: I discussed this matter with Mr. Berntsson, Mr. Chairman, and I discussed it with Mr. Schondebare as well in fact. It was the subject of a meeting some number of weeks ago. And the discussion essentially went as follows. This was prior to the matter being set down on the rehearing. There is an application pending for a rehearing; there is an Article 78 proceeding commenced obviously to comply with the 30-day time limit. A question was put to me in the event that a rehearing were to be considered by the Board in its discretion and granted, what would be the disposition of the Article 78. At that time Page 13 - Transcript of Hearing Appl. No. 3785SE - NINE AND ZAHRA ZBA March 9, 1989 Regular Meeting MR. BRESSLER, continued: I indicated to Mr. Schondebare that I picked a good long return date, but in the event that that return date were not satisfactory, that an adjournment would be granted. When this Board decided that a rehearing would be granted, it became apparent since the rehearing date was two days after the initial return date of the Article 78 proceeding, that is, two days ago an adjournment was granted. It was discussed with Mr. Berntsson and agreed to and granted. And that was the bargain. And the lawsuit is pending and, of course, were there to be a favorable decision, of course, the lawsuit would clearly be dismissed; and that was my agreement with the Town Attorney. My request at this point is as follows. I think this hearing has exhausted itself quite frankly. I think we heard from Mr. DeReeder last time. I think we've just heard from Mr. DeReeder that he has no new facts to put before the Board. Mr. DeReeder has instead told the Board that there has been a change in the Master Plan that may very well be, although the Board can look at the Ordinance under the old Code and under the new Code, and compare the line to the Section, and I think that it's apparent that the requirements are the same. That's a matter for the Board to consider. Mr. DeReeder can read; Mr. DeReeder can see in the Section that three rooms are the same. Mr. DeReeder can see that the owner-occupant is the same. He can see that six people are the same and he can see that the parking requirement is the same. If he's unclear about that, that's the job of the Board and that's the job of the Courts. I haven't heard anything new by way of factual testimony that ought to pursuade this Board or any offer of factual testimony that ought to pursuade this Board that there are any more facts that ought to be taken. And what I'm suggesting is that this hearing be closed; that this Board begin to deliberate; and that this Board make a decision. In the event that the Board cannot or does not reach a decision prior to the return date of the Article 78 proceeding, that the Town Attorney promptly contact me to discuss the matter and I'm sure that a suitable resolution will be worked out. And I think that the Board is cognizant that these hearings are for the making of a record and the taking of testimony, and that the legal import of the Code and what's been put forth is a matter for this Board to decide, and I would urge the Board, in light of what Mr. Nine has -- are you getting all this? BOARD ASSISTANT L. KOWALSKI: Yes, I am (adjusting tape). CHAIRMAN: I'm surprised her hand hasn't fallen off. To be honest with you, really. MR. BRESSLER: In light of what Mr. Nine has indicated and the delays that everyone has suffered to date on this project, the hearing be closed, you start your deliberations, and if something is still burning that it needs to be said, that an application be made to the Board for whatever is deemed advisable. It has been through a hearing. It's been published. We heard no reason why there ought to be additional facts. we've heard no reason why nothing else has been presented. I think enough is enough, and that is what I urge the Board to do. Page 14 - Transcript of Hearing Appl. No. 3745SE - NINE AND ZAHRA ZBA March 9, 1989 Regular Meeting JOHN DeREEDER: Mr. Chairman. Should the Board choose not to grant me a recess tonight, again I don't know what the matter of law is regarding a recess or not, I would like an opportunity to speak on the things I have put together while listening to the other appeals tonight, and I don't think it to be authoritive again because I'm not an attorney. But I think I can, perhaps Mr. Bressler feels that what I may have may not be substantial or new. However, I would prefer as I asked earlier this evening so I may meet personally with my attorney, follow his instructions, and should he so decide either make my own testimony here on my own behalf or have him make it for me. CHAIRMAN: Well, we've done several things in these types of situations. And I'll offer many of them, a couple of them to the Board before we close. One to whom we have given a recess for 15 minutes (time limit) in basically presenting their case, and we could do that. We could recess this hearing to the next regularly scheduled meeting or to the meeting thereafter for basically 15 minutes. Then of course the other side would have the same 15 minutes. We could close the hearing at this particular point or we could listen to you tonight. I dare say that my attention span tonight is much better this late than it has been at other times; I have no reason why -- it has been very interesting tonight and my attention span has been good all the time, but tonight for some particular reason at 11:20 p.m. I'm in pretty good shape. I really don't know how Linda is (jokingly), but that's neither here nor there. I'm in a quandry at this point. So I'll go to my fellow Board Members and ask them what they suggest. MEMBER SAWICKI and BOARD ASSISTANT: Another alternative would be to close the (oral part) of the hearing and recessing for submission of written briefs. CHAIRMAN: Do you have any objection to that, Mr. DeReeder? MR. DeREEDER: I'm sorry. I didn't hear it. CHAIRMAN: Closing the hearing pending your submission in a brief. MR. DeREEDER: Frankly, if that is what is being offered to me-- CHAIRMAN: No, that's not being offered to you. That's just a matter of-- MR. DeREEDER: It's not wholely satisfactory. No. I have some things that should be said, and I would like to have they said either by myself or by my attorney. MEMBER DOYEN: Can he say some of it tonight? CHAIRMAN to BOARD: Because he doesn't know the law, he said. MEMBER DOYEN: But he can still say things. CHAIRMAN: Oh, he can still say it. He's welcome to say whatever Page 15 - Transcript of Hearing Appl. No. 3785SE - NINE & ZAHRA ZBA March 9, 1989 Regular Meeting CHAIRMAN, continued: you want tonight, sure. MR. DeREEDER: Is it a matter of law that I cannot have my recess? Is there some compelling reason that this recess cannot be afforded to me? CHAIRMAN: Mr. DeReeder, we have -- I'll be honest with you. I have never not granted at least one recess to a person who has asked for one. MR. DeREEDER: I mean a recess of this size what could be one meeting seems to be slightly less of a granting than, and I'm not sure which this is, rehearing of an application or submission of an application basically duplicate to the one that had been denied. But please let me know what I can have. CHAIRMAN: I'll offer a resolution to recess it to the next regularly scheduled meeting (April 13, 1989). I really think that it's not out of order to be honest with you. BOARD ASSISTANT L. KOWALSKI: And that would be April 13th? CHAIRMAN: Yes. MR. DeREEDER: Is that the second Thursday of the Month? In which case-- BOARD ASSISTANT: We had the meetings set up back in December. We had to reserve the Meeting Hall ahead of time. We can't just pick any day and expect the Meeting Hall to be available. MR. DeREEDER: My attorney does have other municipal obligations in a Town that has a meeting on the first, second Thursday of each month. BOARD ASSISTANT: That is the day of the next Regular Meeting. CHAIRMAN: I have a resolution that I've made. MEMBER GRIGONIS: Seconded (the motion). VOTE OF THE BOARD: Ayes: Doyen, Goehringer and Grigonis. BOARD ASSISTANT L. KOWALSKI: Are you both voting Ayes to that resolution? MEMBER DINIZIO: No, I'm not voting for that. BOAi{D ASSISTANT L. KOWALSKI: You don't want to recess it-- MEMBER DINIZIO: Not for that long, no. MEMBER SAWICKI: Not for that long. Page 16 - Transcript of Hearing Appl. No. 3785SE - NINE & ZAHRA ZBA March 9, 1989 Regular Meeting CHAIRMAN: That's our next Regular Meeting. MR. DeREEDER: Is there any opportunity two weeks from tonight, or is there no scheduled meeting. CHAIRMAN: There's no meeting. It is a Special Meeting. We have three votes. So that's basically the situation. I don't know what to tell you if your attorney can't make it that night, ok? MR. DeREEDER: I'll have to have him send a partner or somethinGf CHAIRMAN: Ok. Eric? MR. BRESSLER: Mr. Chairman. It seems to me that what we've got here is a delaying situation for delay's sake. This came on for a hearing originally. No request at that time for made for adjournment or a recess to bring in an attorney. MR. DeREEDER: None was needed. MR. BRESSLER: Then this matter came on and it was duly published and advertised. But the lawyer had other obligations. He's got other obligations on the regularly scheduled Board meetings, so he didn't show up. And the application is made for a recess. "Uh, my attorney can't make it. Oh, on the other hand, maybe I'll have one of his partners come down here." But why wasn't his partner here tonight? Now we've got another 30 days. The summer is coming up. There's no reason why in a firm of at least three named partners, one person couldn't be here. When pressed, we find out, well he can't make it but somebody else will~ be here. I don't normally oppose adjournments, but this is not a first adjournment type of situation. This is the second time it has been on before the Board. It has been advertised twice. When pressed by the Board in response to the comment that my lawyer can't make it, now all of a sudden he can't on an adjourned date a month, more than a month from now. MR. DeREEDER: Mr. Bressler, I don't want you to miscontrue my words. MR. BRESSLER: Excuse me! You'll have your opportunity. What I am saying is this thing has been pending since October; we've gone through one full hearing. Now we've gone through a rehearing on this matter. Now all of a sudden an attorney is needed. We haven't heard any new facts. We haven't heard any offer of proof. We haven't heard any reason why what is going to be offered couldn't be put on a piece of paper. I just don't see it and because of the timing of this matter, it is extraordinarily important to my clients that this thing be resolved. Like I said, ordinarily I feel the way the Board does about adjournments, but don't come in at the llth hour, after two advertisements, two hearings, and then say, he can't make it but maybe somebody else will a month from now. I don't think that's fair. Page 17 - Transcript of Hearing Appl. No. 3785SE - NINE & ZAHRA ZBA March 9, 1989 Regular Meeting MR. BRESSLER, continued: If there are additional facts that the Board needs to hear, let's hear them. If there's legal argument that has to be made, we can deal with that some other way. Let's hear it. Let's get it over with. Everybody is awake. If there are any new facts, fine. If it's just argument, I don't think this Board needs to hear an argument as opposed to reading argument. We can all read and write. If there are facts, let's hear them. That's my position. CHAIRMAN: Mr. DeReeder? MR. DeREEDER: Do I have my recess by this Board? (The Chairman and Secretary reminded everyone that the hearing was at this point recessed with the required minimum of three votes, and therefore the additional co~ents made after the resolution are not necessarily a part of the hearing record.) CHARLES ZAHRA: I would just like to say something. With respect to this hearing tonight, it was my understanding that we granted this hearing more or less out of the goodness of our heart. CHAIRMAN: No. Out of the goodness of our hearts, Charlie. MR. BRESSLER: They did. CHAIRMAN: Charlie, let me just say-- go ahead. Go ahead, you continue. MR. ZAHRA: I felt that we had the option or the opportunity to go to Supreme Court rather than come here. CHAIRMAN: You're perfectly correct, and that's the reason why I asked Eric the question about what's happening with the lawsuit. John? So far as I'm concerned, you have it granted. You have three votes of the Board and that's basically the situation. April 13th and we'll give you the time. MR. DeREEDER: I'll have to make arrangements. BOARD ASSISTANT L. KOWALSKI to MEMBER DINIZIO: motion to recess it for another date? MEMBER DINIZIO: I would like to make a motion, Did you want to make a but -- BOARD ASST. L. KOWALSKI: To make it a sooner date? MEMBER DINIZIO: But can we have a meeting sooner? BOARD ASST. L. KOWALSKI: I do know the Meeting Hall is available on March 16, 1989, which is next Thursday. MEMBER DINIZIO: Well, then I make a motion that we have a meeting then. Page 18 - Transcript of Hearing Appl. No. 3785SE - NINE & ZAHRA ZBA March 9, 1989 Regular Meeting BOARD ASST. L. KOWALSKI: Jim has a motion on the floor to recess until March 16th, which is next Thursday, because we have a meeting-hall reservation. CHAIRMAN: We do? BOARD ASST. L. KOWALSKI: Yes. Remember I asked for it earlier on another matter. CHAIRMAN: Basically what we have to do, we can't have two hearings at the same time, so we have to rescind one if this one carries. BOARD ASST. L. KOWALSKI: Yes. He has a motion on the floor. If this one carries, you'll have to rescind your first one, I would guess. MEMBER DINIZIO: Let's hear what we have to hear. He needs a different day, and that's a different day also. Right? CHAIRMAN: I have no objection to that. But since I was the initiater of the other motion, I really don't think I should second it. MEMBER SAWICKI: I'll second the motion. VOTE OF THE BOARD: AYES: Ail. This resolution was unanimously adopted. CHAIRMAN: I'll make a motion to rescind the resolution for the April 13th meeting. MEMBER GRIGONIS: Second. VOTE OF THE BOARD: AYES: Ail. This resolution was unanimously adopted. CHAIRMAN: Is that all right with you, Mr. DeReeder? MR. DeREEDER: March 167 CHAIRMAN: Next Thursday. BOARD ASST.: March 16th, 7:30 p.m. MR. BRESSLER: Thank you, gentlemen, for doing that. I think that does two things. Number One, it's going to bring this thing to a conclusion one way or another, and Number Two, I believe that it relieves Mr. DeReeder's disability that he was suffering with respect to dates. And I think that serves both sides, and I thank you for that. BOARD ASST. KOWALSKI: It'll be at 7:30 or a little after that. Concluded 11:42 p.m. ectfully submitted, . · ? ow~71ski, Board Assistant Southold Town Board of Appeals WILL~AM WICKHAM ERIC J BRESSlER ABIGAIL A WICKHAM DANIEL C ROSS KAREN J HAGEN HUBERT F SULLIVAN l~W OFFICES WICKHAM, WICKHAM ~ BRE$SLER, p.c MAIN ROAD, PO. BOX ~424 MATTITUCK, LONG fSLAND NEW YO~K 1195~ 516-298-8353 mORTGAGE OFFICE 516-298-5300 March 7, 1989 Southold Town Board of Appeals Main Road - State Road 25 Southold, New York 11971 Re: Application for Bed & Breakfast'Proposal Property ID: 1000-114-11-20 Gentlemen: We are in receipt of your letter of March 1, 1989 regarding the above application. As stated in our previous correspondence, upon granting of the instant application, the proposed deed furnished to you will be delivered and recorded. At that time Pamela A. Nine will reside on the premises. My clients are unwilling to transfer title to Ms. Nine unless she is able to operate a Bed and Breakfast and in fact it is our understanding of the law that the applicant need not, at the time of the application, be an owner- occupant. She does have, under the agreement, the legal right and obligation to be an owner-occupant immediately upon approval of the special exception. The agreement to operate a Bed and Breakfast serves as the contract of sale. Please refer to Paragraph 2 of the agreement for the contractual provisions regarding the proposed conveyance. Enclosed is the suppiemen~ary questionnaire completed with all relevant information. Very truly yours, Eric J. Bressler EJB/jtz Enc. APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWlCKI JAMES DINIZ[O, JR, Southold Town Board of Appeals IVlAIN ROAD- STATE ROAD 25 sr'IUTHDLD, L.I., N.Y. 119'71 TELEPHONE (516) 765-1809 INTER-DEPARTMENTAL MEMORANDUM FROM: DATE: SUBJECT: James A. Schondebare, Town Attorney Robert H. Berntsson, Asssistant Town Attorney Board of Appeals March 7, 1989 Zahra and Nine v. Town of Southold Bed and Breakfast Application No. 3785 Attached are copies of the communications with enclosure received today from Mr. Raymond Nine. Please provide us with your coz~ents or suggestions for the public hearing, which as you know will take place on Thursday, March 9, 1989 at 8:20 o'clock p.m. 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-STATE ROAD 25 SOUTHOLD, L.l., N.Y. 11g'71 TELEPHONE (516) 765-1809 March 1, 1989 To: Wickham, Wickham & Bressler, P.C. Main Road, P.O. Box 1424 Mattituck, NY 11952 Mr. Raymond F. Nine New Suffolk Avenue Mattituck, NY 11952 Ms. Pamela A. Nine New Suffolk Avenue Mattituck, NY 11952 Re: Application for Bed and Breakfast Proposal Property ID: 1000-114-11-20 Gentlemen and Ms. Nine: / We are in receipt of and have reviewed your February 27, 1989 transmittals. It is again urged that you submit valid proof of ownership of the premises by all three individuals (including the operator of the proposed Bed and Breakfast). This has been suggested on several occasions, as well as the fact that the owner must occupy and reside at the premises. Additionally, please provide us with a copy of the contract of sale between the current owners and any other party(ies). Although we do have copies of the "Agreement to Operate Bed and Breakfast," we do no% have copies of a valid Contract of Sale. Enclosed is a questionnaire that should be cempleted and returned as soon as possible and in no event later than the March 9, 1989 hearing. Enclosure cc: Town Attorney's office Yours very tr~.-~__ ' Southold Town Board of Appeals MAN RnAD-.ClTAT£ ~FIAD 25 c:I"IUTHnLD_L.I_NN.Y_/I'lCj'7'I09TE~_EPH(~ ~i~'~; ~-']; APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWICKI {~UESTTOI',I-NATR~. JAMES DINIZIO, JR. Accessory Apartment or Bed and Breakfast with Owner-Occupancy Names of Individuals or Parties Having an Interest in the subject Premises and a description of their Interests: Name of the Applicant(s) and his/her Residence: Names of Current Residents/Occupants of the Subject Premises: Current Occupants are: (please check one or more boxes) { } Tenants with Written Lease { } Tenants without Written Lease { } Current Owner { } Contract Vendees ( } Proposed Occupants/Residents under the Subject Application { } Residents NOTE: By not checking one or more of the above, it is assumed that the current Occupants are not tenants with a written or without a written lease, are not current owners, are not contract vendees, are not proposed Occupants/Residents under the Subject Application, and/or have a different residence. Is the subject premises listed on the real estate market for sale or being shown to prospective buyers? { } Yes { } No. Authorized Signature and Date LAW OFFICES WICKHAM, WICKHAM & BRESSLER, P.C. MAIN ROAD, P.O. BOX 1424 February 28, 1989 Southold Town Board of Appeals Main Road - State Road 25 Southold, New York 11971 Re= Application for Bed and Breakfast Proposal Property ID= 1000-114-11-20 Gentlemen= Enclosed please find copy of Application for Special Exception which has been executed by Raymond Nine and notarized. Should you require anything further, please do not hesitate to contact our office. Very truly yours, Ericr e s --r--- EJB/jtz Eric. Southold Town Board of Appeals-5- April 13, 1989 Regular Meeting (Appl. No. 3785 - NINE & ORS, decision, continued:) RESOLVED, to DENY WITHOUT PREJUDICE the Special Exception as applied under File No. 3785 in the Matter of the application of RAYMOND NINE, CHARLES ZAHRA and PAMELA NINE. Vote of the Board: Ayes: Grigonis, Sawicki and Dinizio. Messrs. Goehringer, Doyen, This resolution was duly adopted. lk GERARD p. GOEHRINGER, CHAIRMAN APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWlCKI JAMES DINIZIO, JR. Southold Town Board o£ Appeals MAIN RnAD- STATE ROAD 25 SOUTHOLD, l.l., N.Y. llg?l TELEPHONE (516) 765 1809 Pursuant to Article XIII Board of Appeals of the Town the following to the Suffolk XX of the Suffolk County Charter, of Southold, New York, hereby County Planning Commission: Variance from the Zoning Code, Article , Section Variance from Determination of South~ld Town Building Special Exception, Article III, Section 100-30B(16) Special Permit the refers Inspector Appeal No.:3785 Applicant: Raymond Nine/Charles Zahra Location of Affected Land: New Suffolk Ave., Mattituck, County Tax Map Item No.: 1000- 114-11-20 Within 500 feet of: Town or Village Boundary Line of Water (Bay, SounJ~or Estuary) Body NY XX State or County Road, Parkway, Highway, Thruway Boundary of Existing or Proposed County, State or Federally Boundary of Existing or Proposed County, State or Federal Other Recreation Area Owned Land Park or Existing or Proposed Right-of Way of Any Stream Owned by the County or for Which The County Has Lines, or Within One Mile of a Nuclear Power Plant Within One Mile of An Airport. COMMENTS: Applicant is requesting permission Breakfast Use" in an owner occupied building or Drainage Channel Established Channel to establish "Bed and Copies of Town file and related documents enclosed for your review. Dated: April 27, 1989 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWlCKI JAMES DINIZIO, JR. Southold Town Board of Appeals MAIN ROAD ' STATE ROAD 25 P.O. BOX 1179 SOUTHOLD, 1.1., N.Y. 11971 TELEPHONE (516} 765-1809 FAX NO. (516) 765-1823 April 26, 1989 Eric J. Bressler, Esq. Wickham, Wickham & Bressler, P.C. Main Road, P.O. Box 1424 Mattituck, NY 11952 Re: Appl. No. 3785 - Nine & Zahra (Special Exception) Dear Eric: Transmitted for your records is a copy of the official findings and determination rendered by the Board of Appeals in the above matter at our April 13, 1989 Regular Meeting. Yours ver y~u~/~ GERARD P. GOEHRINGER ~ CHAIRMAN Enclosure Copy of Decision to: Joseph Attonito, Esq. Mr. John DeReeder Mr. Charles Zahra Mr. Raymond Nine and Ms. Pamela Nine Suffolk County Department of Planning ABIGAil A WICKHAM DANIEL C ROSS LAW OFFICES WICKHAM, WICKHAM & BRESSLER, P.C. MAIN ROAD, PO. BOX ]424 MATTITUCK, LONG ISLAND NEW YORK 11952 February 27, 1989 Southold Town Board of Appeals Main Road - State Road 25 Southold, New York 11971 RE: Application for Bed and Breakfast Proposal Property ID: 1000-114-11-20 Gentlemen: In accordance with your request, we enclose the following: 1) Application executed by Charles Zahra, a co-owner and Pamela Nine, the proposed co-owner/occupant/operator. Mr. Nine has been out of town and we ask that you accept his signature from the original application. We expect him back this week but are sending the application in the interest of time. 2. A copy of the proposed deed which will be executed and delivered to Miss Nine upon approval of your Board, pursuant to the agreement. Very truly, yours, Eric J~Br~e~ EJB/jtz Enc. TOWN OF SOUTHOLD, NEW YORK APPLICATION FOR SPECIAL EXCEPTION Application No. Date Filed: TO THE ZONING BOARD OF APPEALS, SOUTHOLD, NEW YORK: ~k (We),Ralanond Nine. C~rles Zahra & Parmala NJ_ne of New Suffolk Ave.. & Pike St.. ~f,~ck (Residence, House No. and' Street) %~xcn of Southold, St~ of New York 11952 (516) 298-8260 & 1516) 298-4091 (Hamlet, State, Zip Code, Telephone Numbe~)" hereby apply to THE ZONING BOARD OF APPEALS for a SPECIAL EXCEPIION in accordance with the ZONING ORDINANCE, ARTICLE III , SECTION 100-30 , SUBSECTION B-16 for the below-described property for the following uses and purposes (and as shown on the attached plan drawn to scale): BI~D & BREAKFAST A. Statement of Ownership and Interest. Chazles Zahra and Ra~a~ond N~ne ~.~(are) the owner(s) of property known and r~ferred to as New Suffolk Avenue, Mattituck, New York 11952 "' (House No., Street, Hamlet) Parmala Nine, will uDon approval of tl~is application, be a record owner pursuant to deed* identified on the Suffolk County Tax Maps as District lb00, Section 114 , Block 11 , Lot(s) 20 , which is not (is) on a subdivision Map (Filed N/A , "Map of N/A "Filed Map No. N/A and has been approved by the Southold Town Planning Board on N/A as a [Minor] [Major] Subdivision). The above-described property was acquired by the owner on June 5, 1986 B. The applicant alleges that the approval of this exception would be in harmony with the intent and purpose of said zoning ordinance and that the proposed use conforms to the standards prescribed therefor in said ordinance and would not be detrimental to property pr pgrsons in the neighborhood for the following reasons: pez~titteo under Zoning C~Dde. P~la Nine will Ul~On apprcr~al of this application, cc~,e into title, ~cupy the pr(mlises and c~rate a [~d & Breakfast. C. The property which is the subject of this application is zoned [x ] ~s consistent with the use(s) described in the Certificate of Occupancy being and furnished herewith. [ ] is not consistent with the Certificate of Occupancy being furnished herewith for the following reason(s): [ ] is vacant land. / / ~ ~ X2 . ~ '{Slgnature~rles Z~a, P~e** ZB2 (rev. 2/6/86) O.,,m~;.,.: ....... **Si~t~e of ~nd N~e f~i~ed on previous application ~ONSULT YOUR LAWYER BEFORE SIGNING THIS INSTRUMENT--THIS INSTRUMENT SHOULD BE USED BY LAWYERS ONLY. District 1000 Section Block 11 Lot 020 TAX MAP DESIGNATION Lot(s): THI~ INDENTURE, made the day of , nineteen hundred and eighty-nine BETWEEN RAYMCIx~ F. NINE, residing at no# New Suffolk Avenue, Mattituck, New York party of the first part. and PAMR~A A. NINE, residing at no# New Suffolk Avenue, Mattituck, New York, party of the second part, WITNF...~ETH, that the party of the first part, in consideration of Ten Dollars and other valuable consideration paid by the party of the second part, does hereby grant and release unto the party of the second part, the heirs or successors and assigns of the party of the second part forever, undividod one--quarter interest AI-I- that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being~ at Mattituck, T~wn of Southold, County of Suffolk and State of New York, bounded and described as follows: BEGINNING at a point on the northerly side of New Suffolk Avenue distant easterly 572.20 feet as ra~asured along New Suffolk Avenue frc~n the easterly side of~V~inRoad (NYS Route 25); running THENCE North 2° 18' 40" East, 200.00 feet; THSIqCE South 86° 09' 00" East 113.00 feet; THENCE South 2° 18' 40" West, 200.00 feet to the northerly side of New Suffolk Avenue; TH~lqCE North 86° 09' 00" West 113.00 feet to the point or place of B~GINNING. BEING and intended to be the same premises described in Liber 5126, Paqe 181 conveyed to Evelyn K. Reeve who dies 1/18/86, testate, a resident of Suffolk County. Letters testamentary dated 2/20/86 issued to William Wickham, as Executor. This conveyance is subject to the conditions of agre~mlent. TOGETHER with all right, title and interest, if any, of the party of the first part in and to any streets and roads abutting the above described prenfises to the center lines thereof; TOGETHER with the appurtenances and all the estate and rights of the party of the first part in and to said premises; TO }lAVE AND TO HOLD the premises herein granted unto the party of the second part, the heirs or successors and assigns of the party of the second part forever. AND the party of tbe first part covenants that the party of the first part has not done or suffered anything whereby the said premises have been encumbered in any way whatever, except as aforesaid. AND the party of the first part, in co~npliance with Section 13 of the Lien Law, covenants that the party of the first part will receive the consideration for this conveyance and will hold the right to receive such consid- eration as a trust fund to be applied first for the purpose of paying the cost of the improvement and will apply the same first to tile payment of the cost of the improvement before using any part of the total of the stone for any other purpose. The word "party" shall be construed as if it read "parties" whenever the sense of this indenture so requires. IN WlTNF,.qS WHEREOF, the party of the first part has duly executed this deed the day and year first above written. IN PRESENCE OF: STATE OE NEW YORK, COUNTy OE SLI~D~K ss: On the day of 19 , before me personally came RAYMOND F. NINE, to me known to be the individual described in and who executed the foregoing instrument, and acknowledged that executed the same. Notary Public STATE OF NEW YORK, COUNTY OF ss: On the day of 19 , before me personally came to me known, who, being by me duly sworn, did depose and say that he resides at No. ; that he is the of , the corporation described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the board of directors of said corpora- tion, and that he signed h name thereto b7 like order. STATE O~: NEW YORK, COUNTY OE ss: On the day of 19 , before me personally came to me known to be the individual described in and who executed the foregoing instrument, and acknowledged that executed the same. STATE OF NEW YORK, ('OUNTY OE ss: ©n the day of 19 ~ before me the subscribing witness to the foregoing instrument, with whom I am personally acquainted, who, being by me duly sworn, did depose and say that he resides at No. ; that he knows to be the individual described in and who executed the foregoing instrument; that he, said subscribing witness, was present and saw execute the same; and that he, said witness, at the same time subscribed h name as witness thereto. WIIH COVENANT AGAIN51 GRANIOR'S ACIS TITLE NO. RAYMOND F. N/NE, TO PAMPA A. NINE, TICOR TITLE GUARANTEE SECTION 114 BLOCK 11 LOT 020 COUNTY OR TOWN Suffolk County TAX BILLING ADDRESS Recorded At Request of Ticor Title Guarantee Company RETURN BY MAIL TO: WICKHAM, WICKHk~{ & BRESSLER, P.C. P.O. BOX 1424, Main Road Mattituck, New York 11952 Zip No. Southold Town Board of Appeals MAIN ROAD- STATE ROAD 25 SOUTHOLD, L.I., N.Y. 11971 TELEPHONE (516) 765-1809 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWlCKI James Dinizio, Jr. October 17, 1988 To: Mr. Charles Zahra 1830 Pike Street Mattituck, NY 11952 Re: Appl. No. 3785 - Bed and Breakfast Proposal Dear Mr. Zahra: As previously requested through our office, please furnish us with a copy of the most current deed of the subject premises prior to the hearing date. The hearing, as you know, has been scheduled to start at 7:50 p.m. on Wednesday, October 26, 1988, and we understand that the owner(s) will be present. Thank you. Yours very trml'v~ m . J GERARD P. GOEHRINGER CHAIRMAN lk CC: Mr. Raymond Nine New Suffolk Avenue Mattituck, NY 11952 Southold Town Board of Appeals MAIN ROAD- STATE ROAD 25 SOUTHOLD, L.I., N.Y. 11971 TELEPHONE (516) 765-t809 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, .IR. SERGE DOYEN, JR. ~C~£~T J. 3CUCLASS. JOSEPH H, SAWICKI 3emes Dinizio, October 17, 1988 To: Mr. Charles Zahra 1830 Pike Street Mattituck, NY 11952 Re: Appl. No. 3785 - Bed and Breakfast Proposal Dear Mr. Zahra: As previously requested through our office, please furnish us with a copy of the most current deed of the subject premises prior to the hearing date. The hearing, as you know, has been scheduled to start at 7:50 p.m. on Wednesday, October 26, 1988, and we understand that the owner(s) will be present. Thank you. GERARD P. GOEHRINGER CHAIRMAN lk CC: Mr. Raymond Nine New Suffolk Avenue Mattituck, NY 11952 $outho wn Board 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 recent application is a copy of the Legal Notice, as published in the Long Island Traveler-Watchman, Inc. and Suffolk Times, Inc. Please have someone appear in your behalf at the time specified in the event there are questions brought up during the same and in order to prevent a delay in the processing of your application. Your public hearing will not start before the time allotted in the attached Legal Notice. Please feel free to call our office prior to the hearing date if you have any questions or wish to update your file. Yours very truly, GERARD P. GOEHRINGER CHAIRMAN APPEALS BOARO 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 recent application is a copy of the Legal Notice, as published in the Long Island Traveler-Watchman, Inc. and Suffolk Times, Inc. Please have someone appear in your behalf at the time specified in the event there are questions brought up during the same and in order to prevent a delay in the processing of your application. Your public hearing will not start before the time allotted in the attached Legal Notice. Please feel free to call our office prior to the hearing date if you have any questions or wish to update your file. Yours very truly, GERARD P. GOEHRINGER CHAIRMAN R-80 MIl' R-80 ~ A-C R-80 R R-E;0 fiLB - A-C · R-80 MATT [T1,.ICK ~80 R-80 ~ A-C R-80 LIO -80 GREAT PEGONIG J (~) COUNTY OF SUFFOLK l~,.oF SOUTHOLI) -,JReal Properly Tax Service Agenry ~C~A~EO~ 114 PROPERly MAP A-C LITTLE P£¢ONIG BAY Agricultural Conservation Residential Low Density AA Residential Low Density A Residential Low Density B Residential Low Density C Residential Low Density D Homlet Density Residential Resort/Residential Residential/Office Limited Business Hamlet Business Generol Business Marine I Marine l'r light Industrial/Office Park Light Industrial WICKHAM, WICKHAM 8~ BRESSLER, P.c. MAIN ROAG, P,O. BOX 14ATTITUCK, LONG ISLAND NEW YORK January 6, 1989 $outhold Town Board of Appeals Main Road - State Road 25 Southold, New York 11971 Gentlemen: We are the attorneys for Raymond F. Nine and Charles J. Zahra and are writing you in connection with Application No. 3785 and your decision made with respect thereto. We note that the decision is based upon the purported fact that Pamela Nine is being assigned permission to operate the Bed and Breakfast and reside on the premises, rather than having a direct interest as a property owner as required by statute. This statement is incorrect based upon the law and evidence in the record. In the first instance, the agreement for operation of a Bed and Breakfast requires Pamela Nine to reside on the premises and operate a Bed and Breakfast. The Board apparently incorrectly focused only on the permission to do same executed by Charles Zahra. As a matter of law the contract vendee, Pamela Nine has the requisite direct interest in the property. In the Matter of Commco. Inc. v. Amelkin, 109 App. Div.2d 794, 486 N.Y.S.2d 305 (2 Dept., 1985). Accordingly, we are requesting that the matter be set down for rehearing and that upon rehearing the original deterTaination be reversed since it was ba~ed on an erron~ou~ reading of the agreement put in evidence and the law applicable thereto. Very truly yours, Er~~ EJB/jtz Southold Town Board o£Appeals MAIN ROAD- GTATE: ROAD "~5 ' SOUTHOLO, L.I., N.Y. TELEPHONE (516) 765-1809 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H~ James UlnlZlOs ,.lt. Pursuant to Article XTI! of the Suffolk County Charter, the Board of Appeals of the Town of Southold, New York, hereby refers the following to the Suffolk County Planning Commission: Variance from the Zoning Code, Article , Section Variance from Determination of SouthOld Town Building Inspector ×× Special Exception, Article~-zi , Sectionloo-3OB(16) __ Special Permit: Appeal No.:3785 Applicant: Raymond Nine/Charles Zghra Location of Affected Land: New Suffolk Ave., Matt[tuck, County Tax Map !rem No.: 1000-114-11-20 Within 500 feet of: Town or Village Boundary Line Body of Water (Bay, Sound or Estuary) XX State or County Road, Parkway, Highway, Boundary of Existing or Proposed Boundary of Existing or Proposed Other Recreation Area County, County, NY Thruway State or Federally Owned State or Federal Park or Existing or Proposed Right-of Way of Any Stream or Drainage Channel Owned by the County or for Which The County Has Established Channel Lines, or Within One Mile of a Nuclear Power Plant Within One Mile of An Airport. COMMENTS: Applicant is requesting permission Br~f~ U~e" in an owner-o~upied huil~in? to establish "B~d and Copies of Town file and Dated: December 13, 1988 related documents enclosed for your review. Land APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR, SERGE DOYEN, JR. JOSEPH H. SAWlCKI JAMES DINIZIO, JR. Southold Town Board of Appeals HAIN ROAD- BTATE ROAD 25 SOUTHOLD, L.I., N.Y. 11971 TELEPHONE (516) 765-1809 December 13, 1988 To: Mr. Raymond F. Nine New Suffolk Avenue Mattituck, NY 11952 Mr. Charles J. Zahra 1830 Pike Street, Box 1137 Mattituck, NY 11952 Re: Appl. No. 3785 - Bed and Breakfast (Sp. Exc.) Gentlemen: Please substitute the attached for the last page which reflects the corrected votes of the Board and the date of filing with the Town Clerk. Yours very truly, Enclosure Linda Kowalski Page 3 - Appl. No. 3785 Matter of RAYMOND NINE and CHARLEs ZAHRA Decision Rendered December 8, 1988 6. In considering this application, the Board finds and determines that it is without authority to grant a Special Exception use where the project does not meet all of the requirements of the Zoning Code {Knadle v. ZBA of Huntington, 121 AD2d 447 (1986]; Roginski v. Rose, et al., 63 NY2d 735 (1984). Accordingly, on motion by Mr. Grigonis, seconded by Mr. Sawicki, it was RESOLVED, to DENY WITHOUT PREJUDICE the Application for a Special Exception as applied under File No. 3785 in the Matter of RAYMOND NINE and CHARLES ZAHRA. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis, Sawicki. (Members absent were: Member Doyen, due to serious fami%y illness and Member Dinizi0, due to bereavement.) This res0Juti0n was duly adopted. lk GERARD P. GOEHRINGER, RECEIVED AND FILED BY ~}~ ~OgTh~LD T~:,~ C'~,~ Page 3 - Appl. No. 3785 Matter of RAYMOND NINE and CHARLES ZAHRA Decision Rendered December 8, 1988 6. In considering this application, the Board finds and determines that it is without authority to grant a Special Exception use where the project does not meet all of the requirements of the Zoning Code {Knadle v. ZBA of Huntington, 121 AD2d 447 (1986]; Roginski v. Rose, et al., 63 NY2d 735 (1984). Accordingly, on motion by Mr. Grigonis, seconded by Mr. Sawicki, it was RESOLVED, to DENY WITHOUT PREJUDICE the Application for a Special Exception as applied under File No. 3785 in the Matter of RAYMOND NINE and CHARLES ZAHRA. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis, Sawicki ~ (Absent ~ Member Doyen, due to serious family illness~) This resolution was duly adopted. GERARD P. GOEHRINGER, cs~AIRMAN lk APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWlCKI JAMES DINIZIO, JR. Southold Town Board of Appeals MAIN ROAD- STATE ROAD 25 SOUTHOLD, L.I., N,Y. 11~?1 TELEPHONE (516) 765-1809 December 13, 1988 To: Mr. Raymond F. Nine New Suffolk Avenue Mattituck, NY 11952 Mr. Charles J. Zahra 1830 Pike Street, ~ Mattituck, NY 11952 Re: Appeal No. 3785 - Bed and Breakfast Gentlemen: Transmitted for your records is a copy of the official findings and determination rendered by the Board of Appeals in the above matter at our Special Meeting held on Thursday, December 8, 1988. Yours very truly, GERARD P. GOEHRINGER CHAIRMAN Enclosure Copy of Decision to: Suffolk County Department of Planning APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONI$,JR. SERGE DOYEN, JR. JOSEPH H. SAWlCKI JAMES DINIZIO, JR. Southold Town Board of Appeals MAIN ROAD- BTATE ROAD 25 SOUTHOLD, L.I., N.Y. 11cj'71 TELEPHONE (516) 765 1809 ACTION OF THE BOARD OF APPEALS Appl. No. 3785: Application of RAYMOND NINE and CHARLES ZAHRA for a Special Exception to the Zoning Ordinance, Article III, Section 100-30B(16) for permission to establish "Bed and Breakfast Use," "an owner-occupied building, other than a hotel, where lodging and breakfast is provided for not more than six casual, transient roomers, and renting of not more than three rooms. Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; County Tax Map District 1000, Section 114, Block 11, Lot 20. WHEREAS, a public hearing was held on October 26, 1988 in the Matter of the Application of RAYMOND NINE and CHARLES ZAHRA under Appl. No. 3785; and WHEREAS, at said hearing all those who desired to be heard were heard and their testimony recorded; and WHEREAS, the Board has carefully considered all testimony and documentation submitted concerning this application; and WHEREAS, the Board Members have personally viewed and are familiar with the premises in question, its present zoning, and the surrounding areas; and WHEREAS, the Board made the following findings of fact: 1. By this Application, applicants request a Special Exception for a "Bed and Breakfast" Establishment, for the rental of three bedrooms for lodging and serving of breakfast to not more than six casual and transient roomers, which will be incidental and subordinate to the principal single-family use of the existing dwelling. 2. The premises in question is located in the "A" Residential and Agricultural Zoning District, contains a total Page 2 - Appeal No. 3785 Matter of RAYMOND NINE and CHARLES ZAHRA Decision Rendered December 8, 1988 area of 22,992 sq. ft. with frontage along the north side of New Suffolk Avenue 113.0 feet, and by deed dated June 5, 1986 at Liber 10062 page 225, the premises was conveyed by William Wickham, as Executor of the Estate of Evelyn K. Reeve, to the Raymond F. Nine and Charles J. Zahra. 3. The subject premises is identified on the Suffolk County Tax Maps as District 1000, Section 114, Block 11, Lot 20, and is improved with a single-family, 2-1/2 story frame dwelling, with setbacks of 54+- feet from the front property line along New Suffolk Avenue, 31+- feet from the westerly side property line along lands now of DeReeder, 40+- feet from the easterly side property line along lands now of Nine, and 108+- feet from the northerly rear property line along lands now or formerly of Wilsberg (see copy of survey dated January 14, 1986, prepared by Roderick Van Tuyl, P.C.). 4. Chapter 100, Article III, Section 100-30B of the Zoning Code provides as follows: ... B. Uses permitted by special exception by the Board of Appeals. The following use(s) are permitted by a special exception by the Board of Appeals, as hereinafter provided, and, except for the uses set forth in subsection (16) hereof, are subject to site plan approval by the Planning Board in accordance with Article XIII hereof: (16) The renting of not more than three (3) rooms in an owner occupied dwelling for lodging and serving of breakfast to not more than six casual and transient roomers, provided that the renting of such rooms for such purpose is clearly incidental and subordinate to the principal use of the dwelling, subject to the following requirements: (a) That adequate off-street parking spaces shall be provided for such rented rooms in addition to parking spaces for the use of the family of the owner... 5. The record shows that both owners do not and will not reside within the dwelling, and that the individual who will reside within and occupy the residence and proposed Bed-and-Breakfast use is being assigned permission to do the same, rather than having a direct interest as a property owner as required by the statute. Further, no testimony has been furnished by the proposed occupant of the premises under oath, as an applicant, or otherwise for the record. Page 3 - Appl. No. 3785 Matter of RAYMOND NINE and CHARLES ZAHRA Decision Rendered December 8, 1988 6. In considering this application, the Board finds and determines that it is without authority to grant a Special Exception use where the project does not meet all of the requirements of the Zoning Code {Knadle v. ZBA of Huntington, 121 AD2d 447 (1986]; Roginski v. Rose, et al., 63 NY2d 735 (1984). Accordingly, on motion by Mr. Grigonis, seconded by Mr. Sawicki, it was RESOLVED, to DENY WITHOUT PREJUDICE the Application for a Special Exception as applied under File No. 3785 in the Matter of RAYMOND NINE and CHARLES ZAHRA. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis, Sawicki. (Members absent were: Member Doyen, due to serious family illness and Member Dinizi0, due to bereavement.) This res0]uti0n was duly adopted. lk GERARD P. GOEHRINGER, RECEIVED AND FILED BY DATE/,3-//~/Y,~' HOUR /'~ Southold Town Board o eals APPEALS BOARD MEMBERS GERARD P. GOEHRINGER. CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWlCKI JAMES DINIZIO, JR. ACTION OF THE BOARD OF APPEALS Appl. No. 3785: Application of PJ%'z~vlOND NINE and CHARLES ZAHRA for a Special Exception to the Zoning Ordinance, Article III, Section 100-30B(16) for permission to establish "Bed and Breakfast Use," "an owner-occupied building, other than a hotel, where lodging and breakfast is provided for not more than six casual, transient roomers, and renting of not more than three rooms. Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; County Tax Map District 1000, Section 114, Block 11, Lot 20. WHEREAS, a public hearing was held on October 26, 1988 in the Matter of the Application of RAYMOND NINE and CHARLES ZAHRA under Appl. No. 3785; and WHEREAS, at said hearing all those who desired to be heard were heard and their testimony recorded; and WHEREAS, the Board has carefully considered all testimony and documentation submitted concerning this application; and WHEREAS, the Board Members have personally viewed and are familiar with the premises in question, its present zoning, and the surrounding areas; and WHEREAS, the Board made the following findings of fact: 1. By this Application, applicants request a Special Exception for a "Bed and Breakfast" Establishment, for the rental of three bedrooms for lodging and serving of breakfast to not more than six casual and transient roomers, which will be incidental and subordinate to the principal single-family use of the existing dwelling. 2. The premises in question is located in the "A" Residential and Agricultural Zoning District, contains a total Page 2 - Appeal No. 3785 Matter of RAYMOND NINE and CHARLES ZAHRA Decision Rendered December 8, 1988 area of 22,992 sq. ft. with frontage along the north side of New Suffolk Avenue 113.0 feet, and by deed dated June 5, 1986 at Liber 10062 page 225, the premises was conveyed by William Wickham, as Executor of the Estate of Evelyn K. Reeve, to the Raymond F. Nine and Charles J. Zahra. 3. The subject premises is identified on the Suffolk County Tax Maps as District 1000, Section 114, Block 11, Lot 20, and is improved with a single-family, 2-1/2 story frame dwelling, with setbacks of 54+- feet from the front property line along New Suffolk Avenue, 31+- feet from the westerly side property line along lands now of DeReeder, 40+- feet from the easterly side property line along lands now of Nine, and 108+- feet from the northerly rear property line along lands now or formerly of Wilsberg (see copy of survey dated January 14, 1986, prepared by Roderick Van Tuyl, P.C.). 4. Chapter 100, Article III, Section 100-30B of the Zoning Code provides as follows: ... B. Uses permitted by special exception by the Board of Appeals. The following use(s) are permitted by a special exception by the Board of Appeals, as hereinafter provided, and, except for the uses set forth in subsection (16) hereof, are subject to site plan approval by the Planning Board in accordance with Article XIII hereof: (16) The renting of not more than three (3) rooms in an owner occupied dwelling for lodging and serving of breakfast to not more than six casual and t~ransient roomers, provided that the renting of such rooms for such purpose is clearly incidental and subordinate to the principal use of the dwelling, subject to the following requirements: (a) That adequate off-street parking spaces shall be provided for such rented rooms in addition to parking spaces for the use of the family of the owner... 5. The record shows that both owners do not and will not reside within the dwelling, and that the individual who will reside within and occupy the residence and proposed Bed-and-Breakfast use is being assigned permission to do the same, rather than having a direct interest as a property owner as required by the statute. Further, no testimony has been furnished by the proposed occupant of the premises under oath, as an applicant, or otherwise for the record. Page 3 - Appl. No. 3785 Matter of RAYMOND NINE and CHARLES ZAHPJk Decision Rendered December 8, 1988 6. In considering this application, the Board finds and determines that it is without authority to grant a Special Exception use where the project does not meet all of the requirements of the Zoning Code {Knadle v. ZBA of Huntington, 121 AD2d 447 (1986}; Roginski v. Rose, et al., 63 NY2d 735 (1984). Accordingly, on motion by Mr. Grigonis, seconded by Mr. Sawicki, it was RESOLVED, to DENY WITHOUT PREJUDICE the Application for a Special Exception as applied under File No. 3785 in the Matter of RAYMOND NINE and CHARLES ZAHRA. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis, Sawicki. (Members abse,t were: Member Doyen, due to serious family illness and Member Dinizio, due to bereavement.) This resoJution was duly adopted. lk GERARD P. GOEHRINGER, RECEIVED AND FILED BY THE SOiJYi!{OLD TOYTi~ C~Lilii DATlq/' ~//9/~Y HOUR %2 '~S-r~ JAMES A. SCHONDEBARE TOWN ATTORNEY ROBERT H. BERNTSSON ASSISTANT TOWN AI~ORNEY OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD To: From: Date: Ref: Gerard Goehringer. Chairman Board of Appeals James A. Schondebare. Town Attorney December 7, 1988 Owner occupied; Bed and Board Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 TELEPHONE (516) 765-1939 I have reviewed the material submitted by the applicant and the Board's minutes. To get to the heart of the matter. Mr. Zahra and Mr. Nine are the present owners, Mr. Nine's daughter is not an owner and has nothing more than a possible contingence interest. In order for this application to be approved. Mr. Zahra and Mr. Nine will have to state under oath that they both reside on the premises. As they have both listed their addresses as someplace else. I fail to see how they can now state otherwise. JAS:rbw AGREEMENT FOR OPERATION OF BED AND BREAKFAST AGREEMENT made this 12th day of October, 1988, between RAYMOND F. NINE, residing at no# New Suffolk Avenue, Mattituck, New York, as Seller, and PAMELA A. NINE, residing at no# New Suffolk Avenue, Mattituck, New York, as Purchaser, WHEREAS, Seller is the owner of a one-half interest in the premises known as the "Reeve House" at 635 New Suffolk Avenue, Mattituck, New York (SCTH#1000-114-11-20), and WHEREAS, Purchaser is interested in acquiring an interest in the premises and operating a bed and breakfast establishment at the premises, and WHEREAS, the other owner of the premises, CHARLES J. ZAHRA, has consented to the agreement between Seller and Purchaser herein; THEREFORE, in consideration of the agreements between the parties made in this agreement, the parties agree as follows: 1. Seller shall pursue an approval for a bed and breakfast establishment at the premises from the Southold Town Zoning Board of Appeals and, if required, the Southold Town Building Department. 2. In the event such approval is obtained within six (6) months from the date hereof, Seller will convey to Purchaser by a Bargain and Sale Deed with covenant against Grantor's Acts an undivided one-quarter interest in the premises. Such deed shall be delivered and the premises conveyed subject only to: (a) Zoning regulations and ordinances. (b) Any state of facts an accurate survey may show, provided same does not render title unmarketable. (c) Covenants and restrictions of record, if any, affecting said premises, provided same are not violated by existing structures. 3. Purchaser agrees to establish and operate a bed and breakfast establishment in accordance with the Southold Town Zoning Ordinance and the approvals therefor upon acceptance of the deed. painting as necessary. Purchaser and Seller shall share equally the cost of interior and exterior olean-up. Any necessary capital improvements shall be borne by the owners of the premises in proportion to their ownership interests. 5. In the event Seller and Charles J. Zebra decide to sell the premises, they shall furnish Purchaser with 60 days written notice. Purchaser shall thereupon terminate the bed and breakfast operation and shall also enter into the contract of sale on the terms approved by Seller and Charles J. Zahra. 6. Ail expenses and costs, and all income and profits from the operation of the bed and breakfast shall belong to the owners of the premises in proportion to their ownership interest. The cost of the taxes, insurance and maintenance on the premises shall be included in the foregoing. 7. In the event Purchaser fails to operate a bed and breakfast establishment in accordance with this agreement, she shall upon demand execute and deliver a deed reconveying her interest to Seller. The provisions of this agreement shall survive delivery of the deed. In Witness Whereof, the parties have signed this agreement. Raym6n~ %'. Nfne ' Pamela A. Nine 53-nineb&b CONSENT TO AGREEMENT FOR OPERATION OF BED AND BREAKFAST CHARLES J. ZAHRA, residing at 1830 Pike Street, Mattituck, New York, as the owner of one-half undivided interest in the premises known as the "Reeve House" at 635 New Suffolk Avenue, Mattituck, New York, hereby consen~ to the terms and conditions of the Agreement for Operation of Bed and Breakfast between Raymond F. Ni,e, as Seller, and Pamela A. Nine, as Purchaser, dated October 12, 1988, with respect to the premises. Dated= October 12, 1988 Charles ~ ~hra - District 1000 Section 114 ~o Block 110~ Lot 020~0 THIS INDF~E, made the~-~ day o! June , ~haeteem hundred and Eighty-Six .£'nw N -t08,1'? WILLL~I WICKHAM, residing at 115 Old Harbor Road, New Suffolk, New York 11956, asexec~or of thelast willand testament of EVELYN K. REEVE ,late of Suffolk County , deceased, party ofthe first part, and RAYMOND F. NINE, residing at (No ~) New Suffolk Avenue, Mattituck, New York 11952, and CHARLES J. ZAHRA, residing at (No #) Pike Street, Mattituck, New York 11952, party of the. second part, WITNESSETH, that the party of the first part, by virtue of the power and authority given in and by said last will and testament, and in consideration of ONE HUIqDRED ~d~NTY SIX THOUSAlqD ~ 00/100 ......... .............................. ($126,000.00) ................................. dollars, paid by the party o£ the second part, does hereby grant and release unto the party of the second part, the heirs or successors and assigns of the party of the second part forever, .aJI. that certain plot, piece or parcel of land. with the buildings and improvements thereon erected, situate, lying and beingimgbe at Mattituck, Tovm of $outhold, County of Suffolk and State of New York, bounded and described as follows: BEGINNING at a point on the northerly side of New Suffolk Avenue distant easterly 572.20 feet as measured along New Suffolk Avenue from the easterly side of Main Road (NYS Route 25); running THENCE North 2° 18' 40" East, 200.00 feet; THENCE South 86° 09' 00" Bast, 113.00 feet; THENCE South 2° 18' 40" West, 200.00 feet to the northerly side of New Suffolk Avenue; THENCE North 86° 09' 00" West 113.0 feet to the point or place of BEGINNING. BEING and intended to be the s~e premises described tn Ltber 5126, Page 181 conveyed to Evelyn K. Reeve who di~d 1/18/86, testate, a resident of Suffolk County. Letters testamentary dated 2/20/86 issued to William Wickham, as Executor. TOGETHER with all right, title and interest, ii ~ny, of the party of the first part in and to any streets and roads abutting the above described premises to the center lines thereof; TOGETHER with the appurtenances, and also all the estate which the said decedent had at the time of decedent's death in said premises, and also the estate therein, which the party of the first part has or has power to convey or dispose of, whether individ- ually, or by virtue of said will or otherwise; TO HAVE AND TO HOLD the premises herein granted unto the party of the second part, the heirs or successors and assigns of the party of the second part {orever. AND the party of the first part covenants that the party of the first part has not done or suffered anything whereby the said premises have been incumbered in any way whatever, except as aior,.-.n!d. AND the party of the first part, in compliance with Section 13 of the Lien Law, covenants that the party of the first part will receive the consideration for this conveyance ,and will hold the right to receive such consid- eration a~ a trust fund to be applied first for the purpose o~ paying the cost of the improvement and will apply the same first to the payment of the cost of the improvement before using any part of the total of t~e s~rne for any othe? porpose. The word "party" ~hall he construed as if it read "parties" whenever the sense of this indenture so requires. Hq WITNF.,.q~ WHF..RIEOF, the .p~ of the first part has duly executed this deed the day and year first above written. On the ~ day of June personally came SUI~OLK SS: 19 86 ' before me WILLIAM WICKHAM, as Executor . ,' to me known to be the indivldu~l dqcfibed in ~nd ~ executed the foregoing instrument, md ~lcknowledgcd he executed the same. Notary Public; " S?ATI OF NIW YORK, COUNTY OII SS: personally came to me known, who, bein!g_by me duly sworn, did depose lad my that he resides at No, tl~t he is the of , the corpomion descn'bed ia nnd which executed the foregoing instrument; that he knows the s~l of said corporation; that the seal aff~xed to said inatmmmt is such corporate s~l; that it vas so sf~xed by order of the board of directors of said corpora- 6on, amt that he signed h ,~me. thereto by like order. STATI OF NIW YOIE, COUNTY OII SS: On the day of 19 , before me personally came L~ me known to be the individual described in and who executed the foregoing instrument, and acknowledged that ,,;'. executed ~he same. STATI Oil NIW YOIU[, COUNTY OF SS: On the d~y of 19 , before me l:~'sonally rune the subscribing witness to the foregoing instrument, with whom I am personally acquainted, wh.o, beln~.by me duly sworn, did depose ~nd say that he ressdes at No. that he knows to be the individual described in and who executed the foregoing instrument; that he, said subscribing witness, was present and saw execute the same; and that he, said witness, ~t the same time subscribed h name as witness thereto. TITLE No. x.ut0r' ttb WILLIAM WICKHAH, as Executor of the Estate of EVELYN K. REEVE, Deceased. RAYMOND F. NINE & CHARLES J. ZAHRA Di.~ib~ed by SECURITY TITI~ AND GUARANTY CO~4PANY SECTION BLOCK LOT COUNTY OR TOWN Re~orded At Request of Security Tide and Guaranty Company RBTU~ BY MAIL TO: WILLIAHWICKHAM, ESQ. WICKRAM, WICKHAH & BRESSLER, P.C. P. O. BOX 1424 Mattituck, New York 11952 Zip No. On the ~ day of June 19 86 ' before me personally came WILLIAM WICKHAN, as Executor to me known to be the individual .d~c~.bed in and v{.h9 .executed the forcing htstnunen~ an~ ~cknowledl~d t~t he ~ the sam~ ~ / ! Notary Public STAT] OP NIW YORK, COUNTY OP SSz on the personally ~e to me ~, wh~, ~g ~ me d~y sworn, ~d de~ ~d ~y ~t he ~td~ at No. ~t he is ~e ' of ~ ~e ~ d~ in ~d whi~ ~t~ ~ for~mg ins~t; ~t he ~ows ~e ~ of ~d ~m; ~ ~ ~ ~x~ fi~d~t he ~ h ~ ~ ~ ~ o~. rrATI OP NIW YORK* COUNTY OP SS: On the day of 19 , before me - p~rsoually came 'tO me known to be the individual described in and who executed the foregoing instrument, and acknowledged that " executed the same. $TAil OF NJW YOLK, COUNTY OF SS: On the day of 19 , before me the subscribing witness to the foregoing instrument, with whom I.am personally acquainted, who, bring by me duly sworn, did depose and say that he resides at No. that he knows to be the individual described in and who executed the foregoing instrument; that he, said subscribing witness, was present and saw execute the same; and that he, said wimess, at the same time subscribed h name as witness thereto. TITLE No. f. xKut0t' WILLIAM WICKHAM, as Executor of the Estate of EVELYN K. REEVE, Deceased. RAYMOND F. NINE & CHARLES J. ZAERA SECTION BLOCK LOT COUNTY OR TOWN Re~orded At Request of Security Tide and Guaranty Compnn¥ RETURN sty MAIL TO: WILLIAM WICKHAM, ESQ. WICKHAM, WICKflAM & BRESSLER, P.C. P. O. Box 1424 Mattituck, New York 11952 Zip No. JS District 1000 Section 114 ~ Block 110~ Lot 020e:~30 ,j TH~ INDF~E, ~de fl~-~ day o! June , meteen hmmd~ ~ Eighty-Six 4084'7 WILLIA~I WICKH~, residing at 115 Old Harbor Road, New Suffolk, New York 11956, ~ execmor ~ the last will and testament of EVELYN K. REEVE ,late of Suffolk County , deces, sed, party ofthe first pa~,and RAYMOND F. NINE, residing at (No #) New Suffolk Avenue, Mattituck, New York 11952, and CHARLES J. ZAHRA, residing at (No #) Pike Street, Matti£uck, New York 11952, party of the- second paR, WITNE.~ETH, that the party o! the first pan, by virtue of the power and authority given in and by said ~st will and testament, and in con~deration of ONE HUHDH~D ~F. NTY SlX THOUSAND ~ 00/100 ......... .............................. ($126,000.00) ................................. dolhn, paid by the party o{ the second part, does he.by g~nt and release unto the party of the second part, the heirs or successors and assigns of the party of the second part breveT, ALL that certain pl~, ~e or parcel of land, with the buildings and improvements thereon erected, situate, lying andheing~xibe at Mattituck, Town of Southold, County of Suffolk and State of New York, bounded and described as follows: BEGINNING at a point on the northerly side of New Suffolk Avenue distant easterly 572.20 feet as measured along New Suffolk Avenue from the easterly side of Main Road (NYS Route 25); running THENCE North 2" 18' 40" East, 200.00 feet; THENCE South 86" 09' 00" East, 113.00 feet; THENCE South 2" 18' 40" West, 200.00 feet to the northerly side of New Suffolk Avenue; TRENCE North 86" 09' 00" West 113.0 feet to the point or place of BEGINNING. BEING and intended to be the s~me premises described in Liber ~126, Page 181 conveyed to Evelyn K. Reeve who died 1/18/86, testate, a resident of Suffolk County. Letters testamentary dated 2/20/86 issued to William Wickham, as Executor. TOGETHER with all fight, title and interest, if any, o{ the party o! the first pan in and to any streets and roads abutting the above described premises to the center lines thereof; TOGETHER with the a.ppurtenances, and also all the estate which the said decedent had at the time o{ decedent's death in said premmes, and also the estate therein, which the party of the first part has or has power to convey or dispose of, whether individ- ually, or by virtue of said will or otherwise; TO HAVE AND TO HOLD the premises herein granted unto the party of the second part, the heirs or successors and assigns of the party of the second part ~orever. AND the party of the first part covenants that the party o! the first part has not done or suffered anything whereby the said premises have been incombe~l in any way whatever, except as AND the party of the first part, in compliance with Section 13 of the Lien Law, covenants that the party of the first part will receive the co??deration for this conveyance .and will bold the right to receive such consid- eration as s trust fund to be apphed first for the purpose o~ paying the cost of the improvement and will apply the. same first to the payment of the cost of the improvement before using any part of the total of the same for any other purp(~e. . The word "pa.~'" shall be construed as if it read "parties" whenever the sense o~ this indenture so requires. IN WIilNT~,%~ ~VI~, the ~ of the first part has duly executed this deed the day and year first above written. ~f WY~(Es~, as~Efecu~r TRANSCRIPT OF PUBLIC HEARING SOUTHOLDTOWN BOARD OF APPEALS OCTOBER 26, 1988 REGULAR MEETING Appl. NO. 3785SE - Matter of RAYMOND NINE and CHARLES ZAHRA. Special Exception to the Zoning Ordinance, Article III, Section 100-30B(16) for permission to establish "Bed and Breakfast Use," "an owner-occupied building, other than a hotel, where lodging and breakfast is provided for not more than six casual, transient roomers, and renting of not more than three rooms. Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; County Tax Map District 1000, Section 114, Block 11, Lot 20. Present were: Chairman Gerard P. Goehringer; Member Charles Grigonis, Jr. and Member James Dinizio, Jr. Absent were Members Joseph H. Sawicki and Serge Doyen, Jr. (due to serious family illness). Also present were: Board Assistant Linda Kowalski, and approximately 40 persons in the audience. 7:51 p.m. The Chairman read the Legal Notice for this hearing, as published in the Suffolk Times and L.I. Traveler-Watchman, Inc. CHAIRMAN GOEHRINGER: I have a copy of a survey dated January 14, 1986 indicating a two-and-one-half-story frame dwelling, approximately 54 feet from New Suffolk Avenue (property line), and a copy of the Suffolk County Tax Map indicating this and the surrounding properties in the area. Good evening, gentlemen. CHARLES ZAHRA: Good evening. My name is Charles Zahra. I'm partners with Mr. Nine on the subject property before you this evening to establish a Bed and Breakfast. I think before I go into anything I prefer to get some questions from the Board regarding it, if you have any. CHAIRMAN: Well, there are only two things that I have that had been brought to my mind basically in reference to thoughts on this, and that is, the nature of the owner-occupancy. Maybe you can clear that up for us first. Page 2 - Hearing Transcript Matter of ZAHRA & NINE - Appl. No. 3785 October 26, 1988 Z.B.A. Regular Meeting MR. ZAHRA: Well, basically, what stands before you is, we have a contract subject to your approval. No, that's not before you right now, but we do have a contract subject to your approval--that's why it may not look as clear as you would like it. Obviously, Ray and myself aren't going to share to same room. He's not my type (jokingly). Does that answer your question now? CHAIRMAN: To a certain degree, Charlie, except that you had mentioned to our Assistant here that you will have a family member in the house at all times. This person will be living on the premises? Is that the case? MR. ZAHRA: Yes. CHAIRMAN: Is that what's going to exist here? MR. ZAHRA: Yes. In other words, the contract would transpire between her and Ray and myself. CHAIRMAN: I see. And there would be a family member living there at all times? MR. ZAHRA: Definitely. CHAIRMAN: That particular person may not be on the deed. MR. ZAHRA: If need be, no problem. SECRETARY (ASSISTANT): We usually ask for a copy of the Contract. CHAIRMAN: Can you furnish us with a copy of the contract some time? MR. ZAHRA: Sure. CHAIRMAN: Ok. That's great. The only other thing was the more or less type of shared driveway effect that you have at this premises. Although I know that the driveway is primarily on your property, I understand that the two prior owners of this piece and the piece on the lefthand side at one time were relatives or something, and that's the reason why the driveways are ultimately contiguous. They're actually -- the asphalt is actually one piece and it just spreads right across. MR. ZAHRA: You're speaking toward the rear. CHAIRMAN: No, I was talking about-- MR. ZAHRA: Just forward--from the road back, I'm going to guess-timate, 100 feet. The road is split by trees and grass. Page 3 - Hearing Transcript Matter of NINE & ZAHRA - Appl. No. 3785 October 26, 1988 ZBA Regular Meeting CHAIRMAN: Yes, I was talking mainly in the back. RAYMOND NINE: That's actually a joint parking area. It used to be in front of a two-car garage, and we gave the two-car garage to our neighbor, and basically the driveway is still there. It still goes around. But if there's a problem with that, we certainly could do something to -- MR. ZAHRA: We could rectify that. MR. NINE: Rectify that so that they wouldn't be able to go around. CHAIRMAN: By the nature of a split-rail fence or something of that nature. MR. ZAHRA: Absolutely. Could put any type of fence you'd like. MR. NINE: Split-rail fence. Whatever you have to do. Trees. Concrete wall. Whatever. CHAIRMAN: Let me just say that parking has been one of the major issues --not necessarily in this application -- necessarily in the applications of the Bed and Breakfasts. MR. ZAHRA: I don't see that we this property because there's more than adequate property. CHAIRMAN: I'm aware of that. I was over there. But how many rooms are you actually going to utilize for this? MR. ZAHRA: You're speaking of bedrooms? CHAIRMAN: Yes. MR. ZAHRA: Well, I went by what Linda explained to me, and it's four bedrooms. She said one needed to be naturally owner-occupied. So it would be three bedrooms. CHAIRMAN: Ok. So at any one time probably six people? MR. ZAHRA: Whatever the Code provides for. CHAIRMAN: That's basically the questions that I had at this particular time, so if you'd like to continue with whatever you wanted to deal with on the -- MR. ZAHRA: I don't think it's going to be necessary as long as I've answered your questions, that's all I'm concerned with. Page 4 - Hearing Transcript Matter of NINE & ZAHRA _ Appl. No. 3785 October 26, 1988 Z.B.A. Regular Meeting CHAIRMAN: Good. I thank you. We'll see what else develops. Is there anybody else that would like to speak in favor of the application? Anyone to speak against the application? Yes, Mr. deReeder? JOH~ DeREEDER: Good evening, Mr. Chairman, Members of the Board, and staff of the Board. My name is John DeReeder. My family and I are the owner and occupants of the house adjacent (to the west) to that jointly owned by Mr. Zahra and Mr. Nine--the house under consideration this evening for a Bed and Breakfast. I'm not used to speaking publicly, as a result I'll be relying heavily on my notes. Please forgive my inexpert delivery. I do have two concerns regarding this Bed and Breakfast that I would like to share with you and share with the applicants. They both have been spoken about since they started speaking. If you'd just let me continue I'll get it over in pretty short order. Should the Zoning Board of Appeals see fit to grant a Special Exception permit, I would ask that they consider the specific relationship of my home to the house belonging to the applicants in determining how best to provide for their intended use to my family's own continued quiet enjoyment of our home. My house was built in 1919 by Herbert Reeve for his own use convenient to his greenhouses, which were located adjacent to the west of the house and across New Suffolk Avenue where the Tolendal now stands. In 1923 Herbert's partner and brother built a similar house for his family that's now jointly owned by Mr. Zahra and Mr. Nine. As the owner-builders of these homes were brothers, as well as partners, as might have been expected, they built their homes different from what they might have if they had purchased tract lots and built among strangers. In 1988, as it was in 1923, the houses have only each other for adjacent neighbors. In 1964, Mr. Nine purchased a half-acre of property to the west of his own home since merged, providing him with a large privacy buffer more than 160 feet between his residence and the house he owns with Mr. Zahra with their Bed and Breakfast as proposed. To the west of my family's home are two vacant lots. As would be expected in houses of this age and type, the formal entrances to both homes face the street. However, the entrance is designed to be used and almost invariably used by family and friends both in 1923 and as now, directly face each other across a common loop driveway. When my family purchased from Herbert Reeve in 1986, the homes shared not only the use of the driveway, but a common garage which straddled the property line. Of necessity, we live close by our only neighbors, who are renting the house from Mr. Zahra and Mr. Nine. The current tenants are family people are our nearness has been an advantage I believe to my family and theirs. We watch each other's kids and use each other's driveways as if both drives were our own. Page 5 - Hearing Transcript Matter of NINE & ZAHRA - Appl. No. 3785 October 26, 1988 ZBA Regular Meeting MR. DeREEDER, continued: My family would prefer the opportunity to make similar accommodations with the eventual purchaser of the Zahra-Nine house. But the closeness of the homes to each other becomes a significant liability to my family if the neighbors were taking in borders. Obviously we neither wish nor intend to foster personal or family attachments with our neighbors up to six casual, transient roomers. I would ask that the Zoning Board consider a modification to the applicants' plan that will minimize the effect on my family of our loss of privacy and guest-related, vehicle and pedestrian traffic resulting from the greater-than-normal closeness of my family's home to the house owned by the applicants. Specifically, I would ask that Bed and Breakfast guests be required to drive onto the premises on its east side, park their vehicles along the lot-line nearest Mr. Nine's generous side yard, and enter the Bed and Breakfast out through any of the three existing doors that face away from my family's home. Should the Zoning Board see it fit to grant the Special Exception permit, I believe that this alternative site design will greatly reduce my family's loss of our rights of quiet enjoyment without affecting the applicant's enjoyment of and ability to operate their Bed and Breakfast home. I believe that the criteria for a Special Exception use permit are fairly straight forward. I'm going to quote briefly from New York Town Law, from McKinne¥'s Consolidated Laws of New York: "...Granting of a Special Exception does not entail making an exception to the ordinance but rather permits certain uses which the ordinance authorizes under special stated conditions, and such exception is allowable when facts and circumstances specified in the ordinance are found to exist .... " If the conditions are met for the Special Exception, and now I'm quoting from the Town of Southold Special Exception application, "...the approval of this exception would be in harmony with the intent and purpose of said zoning ordinance," which is the bed and breakfast use, "it would not be detrimental to the property or persons in the neighborhood, is compelled to grant the Special Exception use permit, without regard to hardship, though they are free to mandate conditions that they believe will protect the public welfare." Importantly, the Zoning Board has no power to waive or modify any of the conditions specified in the ordinance. Page 6 - Hearing Transcript Matter of NINE & ZAHRA - Appl. No. 3785 October 26, 1988 ZBA Regular Meeting MR. DeREEDER, continued: While drafting the Bed and Breakfast law, the Code Committee of the Town Board requested that members of the Town Board, Planning Board and the Zoning Board of Appeals, submit to them criteria that each thought was important to the structuring of the prospective Bed and Breakfast Ordinance. The concerns of the variance Board personnel were numerous. Recommendations included: minimum lot size, restrictions on signage by size and type, question of compliance with N.Y.S. Building Codes, the question of compliance with Suffolk County Health Department standards, limitation of number of guests and length of stay, licensing and renewal of licenses, enforcement of zoning compliance, preclusion from major subdivisions where law may conflict with covenants and restrictions, parking standards, and jurisdictions under which the review process would take place. Laws, especially controversial laws, are generally written as compromises; and the surviving specific conditions of the Southold Bed and Breakfast Special Exception permit are as follows, simply: 1. Not more than three rooms or six guests is allowed; 2. Only breakfast may be served; 3. The premises must be owner occupied; 4. Adequate additional off-street parking must be provided; 5. The bed-and-breakfast use is not allowed in conjunction with an accessory apartment which was added by Local Law 92-1987. The sign restrictions are addressed elsewhere in the Code. So: 1. if the applicant meets these specific conditions, 2. is "in harmony with the intent and purpose of the ordinance, bed and breakfast ordinance, and 3. and the granting would not be detrimental to property and persons in the neighborhood, the Zoning Board must grant the application. But once again, they are free to specify limiting conditions that they believe will protect the public welfare. Also, once again, the zoning board has no power to waive or modify any of the conditions specified in the ordinance. I believe the zoning board cannot grant the requested Special Exception permit for either one of two specific reasons, both related to the owner's occupancy or intent to occupy the property under consideration. Page 7 - Hearing Transcript Matter of NINE & ZAHRA - Appl. No. 3785 October 26, 1988 ZBA Regular Meeting MR. DeREEDER, continued: The owners have made it plain that they have no intention of occupying and obviously they presently do not occupy the structure. Mr. Zahra lives on Pike Street, and Mr. Ray Nine lives in his own house adjacent on the other side. This house is all the earmarks of a property purchased for speculation. It is tenant-occupied, and the real estate for-sale sign which was placed on the property more than two years ago remains there still. Mr. Zahra and Mr. Nine purchased this house for $126,000 on June 5, 1986. It was immediately listed for sale for $225,000 and has remained available continuously at that time at the $225,000 price. Originally the house was available for sale "as is" as it had been purchased by the present owners. It was vacant for seven years since it was last occupied by Evelyn Reeve, the previous owner. Over their two years of ownership, the owners have constantly improved the house. They have made serviceable the well, septic system, and heating equipment, and they painted the exterior trim. But still they have been unsuccessful in attracting a purchaser. So what else can they do. I believe, and I feel that it is transparent to anyone remotely familiar with this application, that the approval is being sought solely so that the owners may sell the house at a price higher than it has otherwise been able to command. As they must, in Section B of their Special Exception Application, the applicants allege that their use would be in harmony with the intent and purpose of the Bed and Breakfast Zoning Ordinance. I allege otherwise. If the owners indeed have no intent to occupy this house and operate and Bed and Breakfast use, then I believe that this Special Exception use is no longer--and I quote from the Ordinance-- "clearly subordinate to the principal use of the dwelling" as it must be by law. This property is sold conditioned upon or on the strength of a successful Bed and Breakfast permit, granted to these applicants, then the protections inherent in the specific ordinance and in the zoning law have been grossly perverted in favor of the owners' private gain. When the house is sold, let the new owners after establishing occupancy, apply for the Special Exception use permit for a Bed and Breakfast, should they desire that use for their home. In the meantime, as neither owner occupies or intends to occupy this dwelling; and as a sale of this property for a Special Exception to another party renders a Special Exception use clearly not subordinate to its primary use as a dwelling, and is outside the spirit and intent of the ordinance, I respectfully submit to you that the granting of this permit application can only be denied. Thank you. Page 8 Hearing Transcript Matter of NINE & ZAHRA - Appl. No. 3785 October 26, 1988 ZBA Regular Meeting CHAIRMAN: Thank you. Anything in rebuttal, Mr. Zahra? Mr. Nine? MR. ZAHRA: I'd just like to say a couple of things. First of all, with respect to the sale, I don't think that has any bearing on whether or not we're granted the variance. And I'm not going to go into the different contracts that we have had come forth and falter. I don't think it has any bearing here. I would like to say one thing with respect to the area in general. This provision was put in the Code to help with transient tourists. And to prevent the further development of motels, hotels, whatever you want to call it, which seem to be more disfavorable. I also think that this provision in the Code came at a time where --saying the youth of the area leave because it has become too costly to live in the area--due to high costs of taxes, low wages, and the like, which we are all aware of. I think this affords an opportunity to a young person just starting out, whether it be a single person, young married couple, to be able to again look at the feasibility of living in the area. And bringing up a family. I can understand Mr. DeReeder's feeling. He's entitled just as we are to ask for it. He's entitled to ask to be denied. And I hold no animosity towards it. Thank you. CHAIRMAN: Thank you. MR. NINE: Jerry, I would just like to saying something too. CHAIRMAN: Sure, Mr. Nine. MR. NINE: When the figures that Mr. DeReeder gave, are the correct figures. And we did buy the house, and the house has been on the market, as Mr. Zahra said, we have had several deals to sell the house but nobody has been able to come up with enough downpayment as of yet. As a matter of fact, we even had one offer of $235,000 for the house if we could wait two years for the man to sell his house to buy it. So there is a good possibility to sell the house. It's not the idea that we're stuck with the house and we're doing this strictly to generate income in the house. We have had people look at the house and ask us if it's possible to have a Bed and Breakfast, and we have said, yes, that it probably would be possible, and we thought about it and we have dumped money into the house, and had it fixed up, and we feel it again would be an asset to the Town to have a Bed and Breakfast. Michael Herbert has one in Mattituck, and I've seen no problem with that at all. And we have more parking right now on the property than he has, and as far as the property that John had mentioned of parking being a problem, he's been very fortunate because since we've owned the property, the driveway has been there and there's been no tenants in the house at all until Dr. Tom Mercier's house burned down back in August, and his family had no place to go, and Charlie and I told him and his family that they could live there rent-free until they have their house rebuilt. And so now, of course, he has to share the driveway with them, so I can see him being concerned about the driveway having more action because since Page 9 - Hearing Transcript Matter of NINE & ZAHRA - Appl. No. 3785 October 26, 1988 ZBA Regular Meeting MR. NINE, continued: we've owned the thing, there has been no action in the driveway at all. Mr. DeReeder has had the complete use of our parking area, and our driveway, and has used it and we have not said a word. Also the two-car garage that was jointly on both properties when we purchased it, we gave that to Mr. DeReeder, free of charge, and he moved the building over because it was shared with both properties; and we wanted to get the property and boundary line cleaned up. So as far as dividing the driveway, if it's a requirement that we divide the driveway and put up some kind of a concrete wall or shrubs or a fence and make the blacktop so that a driveway will not be jointly used, I'd be very happy to do that, and if it's a case of expanding the black-top behind the house a little bit more to give adequate parking, I'd be very happy to do that. Any requirements that you folks have just mention it to me, and I certainly see that we would do it. But I can see Mr. DeReeder being upset, now having to share the driveway with someone else since he has had the full use of both driveways, and we've said nothing about it since we've owned the property. I can see that being a concern with having kids. But if we sell the property, it's very possible that a young family could buy it with four or five teenagers and they could each have a car, and you could wind up selling it to a family that would have more traffic coming and going in that yard that we would ever generate by a Bed and Breakfast. I have never seen any of the Bed and Breakfasts that are approved in Southold Town yet -- the one in Peconic and the two in Mattituck -- I've never seen any traffic problems, or an abundance of cars in any of them. And I think it certainly does meet the need and nobody wants to see more condominiums and more motels and these types of things built. The Bed and Breakfast was the answer, and I think we have a house in a neighborhood where it won't really affect anything. And also, all the property around this property are like Mr. DeReeder had said, to the west of him and both to the north of him, to the north of our property, is all B-Business property. And we don't know what's going to be there. But with our Bed and Breakfast, we certainly cannot make this into commercial property. It's not a commercial zone. So I think that that would certainly be more of a threat. The business property to the north and west of him, than to have a Bed and Breakfast on the east side. Do you have any questions, the Board Members? CHAIRMAN: My only thought was the possibility of re-routing the driveway on the east side. Page 10 - Hearing Transcript Matter of NINE & ZAHRA - Appl. No. 3785 October 26, 1988 ZBA Regular Meeting MR. NINE: I would say this, Jerry, in all honesty. When I was a young boy about ten years old, I used to go over a mow Reeve's lawn, and at that time the driveways were on the outside of the houses. They were on the outside of the properties and they came across and joined in the center where the garage was, and then at one point when they had to blacktop it was much cheaper to have them blacktop straight going into the parking area on each separate property, instead of going all the way around the house, and that's why it was done, so at one time the driveways were there. But I certainly would not demand, if we had the Bed and Breakfast, that Mr. DeReeder move his driveway; and I don't see why I should be forced to move that driveway. I certainly would make it adequately safe if you require a fence or a wall, you require a little more property. I certainly would be very happy to take care of that problem. Any other questions? CHAIRMAN: No, that's all I have. MR. NINE: Thank you. MR. ZAHRA: I would just like to reiterate with respect to the driveway situation question. If we're talking the concern is the numbers of people and vehicles entering and exiting the property again, Ray brought up a situation which I have to agree with-- if you had a family of say ten people living in the house, eight, nine, whatever, and they were all of the driving age--would you object to them living in the house or ask them to move the driveway? I mean I have five people that drive in my family, and my neighbors aren't complaining for me to move my driveway. That's all I have to say. CHAIRMAN: Thank you. Anything in rebuttal, Mr. DeReeder? MR. DeREEDER: I welcome Mr. Zahra and his five cars to come owner-occupy the house and apply for a Bed and Breakfast. In the meantime, I think it puts me at a disadvantage if the property is sold contingent upon that, with the use in place with a stranger, than I have nothing to say about how the driveways are used together. I have no means of establishing precedent. As I said earlier, I think the present situation works out to the advantage to my family and the Mercier Family. We've made the best of an otherwise bad situation because the houses not only share the driveway but the main access to both houses faces that driveway directly opposite each other. If someone goes into this with the idea that they're buying it as a Bed and Breakfast, I think whether or not it's in a residential area, they're concerns only secondary that it's a residence. I believe that a proper application would be submitted by someone who intends to occupy the house and preferably occupies the house at that time so that the Board can meet the concerns knowing the intent of this ordinance under a restriction is to protect the neighborhoods and not protect Mr. Zahra or Mr. Nine's $99,000 profit. Page 11 - Hearing Transcript Matter of NINE & ZAHRA - Appl. No. 3785 October 26, 1988 ZBA Regular Meeting CHAIRMAN: Thank you. MR. ZAHRA: I fail to understand why he keeps bringing up the profit. He himself is in a real-estate business. Would you care to submit your W-2 form for last year? It has no bearing on it. CHAIRMAN: Charlie, the questions have to be presented up here, please. Thank you. Anybody else like to comment concerning this application? (None) Hearing no further comments, I'll make a motion closing the hearing and reserving decision until later. MEMBER GRIGONIS: Second. CHAIRMAN: Thank you very much gentlemen. Motion was made by Mr. Goehringer, seconded by Mr. Grigonis, duly carried, to close (conclude) the hearing and reserve decision until a later time. and The hearing was concluded at 8:15 p.m. Respectfully submitted, Linda F. Kowalski, Secretary Southold Town Board of Appeals Pp. 1-11 ~,D OF APPEALS thold Town Hall n Road - S.R. 25 Id, New York 11971 Mr. Raymond F. Nine New Suffolk Avenue Mattituck, NY 11952 RD OF APPEALS ~thold To~zn Hall in Road - S.R. 2S rid, New York 11971 Mr. Charles Zahra P.O. Box 1137 Mattituck, NY 11952 ARD OF APPEALS outhold Town Hall aJn Road - S.R. 25 r~old, New York 11971 Mr. and Mrs. John DeReeder New Suffolk Avenue Mattituck, NY 11952 NC~TICE IS HEREBY · ~q 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, MARCH 9, 1989, ~8the following times: :20 p.m. Appl. No. RAYMOND F. NINE, PAMELA NINE AND CHARLES ZAHRA. ·SPecial Exception to the Zoning Ordg nance, Article Ill-A, 100-31A(B) for permission to tablish "Bed and Use;' 'an owner-occupied ing, other than a hotel, wher{ lodging and breakfast is pro- . vided for not more than six casual, transient roomers, and renting of not more than three rooms~ in conjunction with owner-occupancy as a single- family dwelling use. Location of 'Property: North Side of New · Suffolk Avenue, Mattituck, NY; County Tax Map District 1, Section 114, Block 11, Lot 20. Zone District: R-40. ~ 8:30 p.m. Appl. No. 3829-- FRED RENGANESCI and BARBARA REITER as Appli~ -· cants for a Reversal of a Deter- mination by Building Inspector to Grant Building Permit No. 17508-Z dated October 6, 1988 concerning a proposed "steel building for indoor storage of boats" to be located at premises referred to as "MATT-A-MAR~" now or formerly owned by Wickham Road Marina, Inc. Zone District: Marine (M-II): [Previous Zone District: B-Light. Business]· Application was fil- ed citing the prior Zonifig Code, Article VI, Sections 100-60 and 100-61, and Article XIV. New Zoning Code citations refer to Sections 100-121 and 100-122, and Article XXVII for the same or similar provisions for this M- Il Zone District. Property Loca- tion: West Side of Wickham Avenue, Mattituck, NY; Coun- ty Tax Map District 1000, Sec- tion 114, Block 3, LOt 1. The Board of Appeals will at said time and place hear 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 bearing will not start before the time at- lotted. For more information, please call 765-1809. Dated: February 9, 1989 BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD. p. GOEHRINGEI~ 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 . .c~-.~.. Sworn to before me this .......... .~..~. :.4~..... day of ....... · ....... Notary Public 12fiRBARA A. SCHNEIDER ~CTAR';' PL'LtLIC, State o! New York i'~o. 4806846 O'alifi~d in Suff°lk C~-3/// ,~,,,a mission ~pires Southold Town Board of Appeals .o o APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS. JR. SERGE DOYEN, JR, JOSEPH H. SAWlCKI JAMES DINIZIO, JR. February 10, 1989 Eric J. Bressler, Esq. Wickham, Wickham & Bressler, Main Road, P.O. Box 1424 Mattituck, NY 11952 PoCo Re: Appl. No. 3785 - Nine & Zahra (Bed and Breakfast) Dear Eric: This letter will confirm that the following action was taken by the Board of Appeals at our February 9, 1989 Special Meeting: RESOLVED, to set THURSDAY, MARCH 9, 1989 as the date of a public hearing in the Matter of RAYMOND F. NINE, PAMELA NINE and CHARLES ZAHRA for a Special Exception to establish "Bed and Breakfast Use," "an owner-occupied building, other than a hotel, where lodging and breakfast is provided for not more than six casual, transient roomers, and renting of not more than three rooms. Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; County Tax Map District 1000, Section 114, Block 11, Lot 20; and BE IT FURTHER RESOLVED, that the owner and occupant of the dwelling and the operator of the proposed Bed and Breakfast Use complete the attached Special Exception form and return same together with a copy of the deed showing proof of ownership for the same. This resolution was unanimously adopted. Please furnish our office with the requested documents as early as possible to complete the file. A copy of the Legal Notice as published in the L.I. Traveler-Watchman and Suffolk Times will be forwarded to you as confirmation of the time of the hearing in this matter. lk CHAIRMAN cc: Town Attorneys' Office You~,~ very Southold Town Board of Appeals -43-January 12, 1989 Regular Meeting Deliberations/Decision, continued:) ///- to DENY the reliefrequested unO'Appeal No. 3814 in of RYCK KOKE for the fol~ng' reasons: ~fficulties claim~are self-created and 1. there is no question same was ~Snstructed~ without issuance of proper and valid 2. There is an alterr ocate the subject structures closer and at to ~idence with the minimum setbacks for a ~ structure (p minimum sideyard at 15 feet), rather as applied. Vote of Ayes: Members Dinizio and ~i~onis. Nay: Ch~ . {Absent were: Members Doyen~d Sawicki). resolution was deemed to be lost. ~ Goehringer offered a motion to approve~ [y the relief requested, provided that a three-foot be gained by cutting back the deck on the south side. one seconded the motion. The motion was lost. REQUEST FOR REHEARING: The Board Members considered the request for a rehearing received January 9, 1989 from Eric J. Bressler, Esq. concerning Appl. No. 3785 - MATTER OF RAYMOND NINE AND CHARLES ZAHRA Bed-and-Breakfast proposal (see letter dated January 6, 1989). The Board was asked whether or not they would like to offer a motion to rehear, and no motion was offered. However, the Board Members urged the property owner/applicant instead to apply with a new application by the new (proposed) property owner with appropriate documentation and testimony {rather than by rehearing on an application filed by a different applicant}. (It is noted for the minutes that the Department of the Board of Appeals was not aware of the Article 78 proceeding filed with the Town Clerk's Office earlier today concerning the decision rendered by the Z.B.A. on the Bed and Breakfast application by Charles Zahra and Raymond Nine.) INTER-OFFICE MEMO FROM THE TOWN ATTORNEY'S OFFICE TO: FROM: DATE: REF: Robert H. Berntsson, Assistant Town Attorney ERIC U. BRESSLER ABIGAIL A WICKHAM ~AW Offices W~CKHAM, WlCKHAM & BRE$SLER, MAIN ROAD. PO. BOX 1424 MATTITUCK, lONG ISLAND NEW YORK H952 516-298-8353 MORTGAGE OFFICE January 6, 1989 Southold Town Board of Appeals Main Road - State Road 25 Southold, New York 11971 Gentlemen: We are the attorneys for Raymond F. Nine and Charles J. Zahra and are writing you in connection with Application No. 3785 and your decision made with respect thereto. We note that the decision is based upon the purported fact that Pamela Nine is being assigned permission to operate the Bed and Breakfast and reside on the premises, rather than having a direct interest as a property owner as required by statute. This statement is incorrect based upon the law and evidence in the record. In the first instance, the agreement for operation of a Bed and Breakfast requires Pamela Nine to reside on the premises and operate a Bed and Breakfast. The Board apparently incorrectly focused only on the permission to do same executed by Charles Zahra. As a matter of law the contract vendee, Pamela Nine has the requisite direct interest in the property. In the Matter of Commco, Inc. v. Amelkin, 109 App. Div.2d 794, 486 N.Y.S.2d 305 (2 Dept., 1985). Accordingly, we are requesting that the matter be set down for rehearing and that upon rehearing the original determination be reversed since it was based on an erron~ou~ reading of the agreement put in evidence and the law applicable thereto. Very truly yours, Eri~ EJB/jtz Chap[er I00 is amenc~ed b~ as follows: adding a new Article thereto, to be ~CL~ Ill - A ~esident/al R-~O D~strict ~s to r SUDDI an aD roxamatet o O ovide areas ~ ermitt~ Uses ' or ~and garkln requiremenJs ~~ eSsorv ~..,~. are areas wi ose rec e~ aOnPen rural environment so ents s recrea tion, resort and second and success, to ac e rees of [Section 100-301 Section 100-31. Use regulations. In an [A~ A*C District, no building or premises shall be used, and no building or part of a building shall be erected or altered which is arranged, intended or designed to be used, in whole or {n part. for any uses except the following: A. Permitted uses. ( IJ One-family detached dwellings, not to exceed one dwelling on each lot. 2.1 The following commercial agricultural operations and spraying and dusting to protect vegetat on within 150 feet of any lot line: ' The raising of field and garden _croos, vineyard premases subject to the following special (1) All {one-storyJ buildings [or structuresl for display and retail sales of agricultural and nursery products grown [primarily J on the floor area [-I or one story in heic]ht Dis la not less than-- I0 f~ee~-fr~m a~-~street and lot [One hundre~/~tv [501 square feet in Hoor area shall be set back Wemy~'2Ol feet fronl the wHh ail of the provisions h~reot. ! L L L L (b.} The keeping, breeding, raising and training of horses, domestic animals and fowl (except ducks) on lots ten (10} acres or more. [c.) Barns, storage buildings, greenho~uses ( ~ncluding plastic covered}, and other related structures. provided that such buildings shall conform to the yard requirements for principal buildings. Buildings. structures and uses owned or operated by the Town of Southold, School Districts. Park Districts and Fir~ .Districts. Uses permitted by special exception by the Board of Appeals. The following uses are permitted as a special exception by the Board of Appeals. as hereinafter provided, and . and except for the uses set forth in subdivision (15) he,'eof, are suDfect to site plan approval by the Ptann~ncj Board .:. [in accordance with Article XIII hereof:J (1.J Two-family dwellings [, conversions of existing buildings and new construction,I not to exceed one such dweiling on each (2) Places of worshio, including parish houses (but excluding a for a one-family dweUingJ, subiect to the following requirements. (al No building or part thereof shall be erected nearer than fifty (501 feet to any street line and nearer than 20 feet to any lot line. The total area covered by all principal and accessory buildings shall not exceed twenty (209 } percent of the Private elementary or hic~h schools, colleges and other educational institutions, SUOl~Ct to the following requirements. fa) No building shall be less than fifty (50) feet from any street or lot line. (b) The total area occupied by all principal and accessory buildings shall not exceed twenty (2g%) percent of the (c) Any school shall be a nonprofit organization within ~he effectively thereunder as such. Any such school shah occupy a lot witrl an area of not which the building is designed. I/ibraries. J Philanthropic. eleemosynary or ~elig~ous institutions, drug addJt on, subiect to the t'oJloweng requ~remenls: (al No building or part thereof or ar~y Darkinc~ or Ioadinc~ ~rea (c) The maximum height shall be thirty-five [35} feet or two and one-half {2t) sierras. ia! The entire lot, except areas occupied by buildings or parking or ioading areas, shall be suitable landscaped and properly maintained. Sufficient exterior illumination of the site shall be required to provide convenience and safety. All such illumination shall be shielded from the view of all surrounding streets and lots. Any nursing home. hospital or sanitarium shall meet the following standards: ill {i._~.) All buildings shall be of fire-resistive construction. {21 (ii) [31 (iii) [ql (iv) All such uses shall be served by adequate water and sewer systems approved by the Suffolk County Department of Health. Patients suffering from communicable diseases shall not be permitted [n any nursing home or sanitarium (communicable di5eases are defined by the Sanitary Code of the Public Health Council of the State of New York). Eight Thousand (8,000) square feet of lot area shall be provided for each patient bed. Public utility rights-of way as wail as structures and other installations necessary to serve areas within the Town. subject to such conditions ~s the Board of Abpeals may impose in order to protect and promote the health, safety, appearance and general welfare of :he community and the character of the neighborhood in [Fraternity houses. J Beach clubs, tennis clubs, country, clubs, c~olf clubs, public golf courses, anO annual and maintenance buildinas, suPject to the following Children's recreation camos organized primarily lot seusonal use and subject to the following requirements: fa) No building, tent. activit~ area or recreation facility~ shall be less than two hundred (200} feet from any lot line. and any such building, tent. activity area [ L L L L L f therefrom as required by the Planning Board. Buildings intended for use as sleeping quarters shall be not less than thirty (301 feet from eactl other, excebt tents, which shall be not less than ten (101 feet apart. lb) The minimum lot area shall be not less than ten thousand (10.0001 square fee[ for each cottage, tent or other principal building, and not less than three thousand (3,000) square feet of land area shall be provided for each person accommodated in the buildings or tents on the premises. lc) All outdoor lighting shall be arranged and/or sheilded to eliminate the glare of lights toward nearby residential lots, streets or other public facilities. {d} The sound level of all outdoor public-address systems shall not exceed the intensity tolerable in a residential neighborhood. [Labor caml3s, Farm and nonfarm,] Farm labor camos, subject to the following requirements: (al conformance with applicable laws and shall not be located the employer, except by specific review and approval of the plannincjl Board [of Appealsl. [(9)1 [Boat docking facilities for the docking, mooring or accommodation of noncommercial boats, subiect to followmg requ~rements:J [There shall be docking or mooring facilities for no more than two (2~ boats other than [hose owned and used by the owner of the premises for his personal use. l Veterinarian offices and animal hdspitaJs, subject to the Following requirements: (al The housing of all animals shall be in a Fully enclosed structure, if nearer than one hundred fifty (15(]) feet to any lot line. Cemeteries. (121 Stables and riding academies ((13)) [Funeral homes and undertaking establishments. J itl(i) J (131 ',Vineries For the production and retail sale of win'e produced -15- [ (151 I ~ One accessory apartment In an existing one-family'dweUing, subject to the following requirements: (a) The accessory apartment shall be located In the principal building. (b) 'rhe owner of the existing dwelling shall occupy one of the dwelling units as the owner's principal residence. The other dwelUng unit shall he /eased for year-round occupancy, evidenced by a written lease for a term of one or more years. (c) T~e existing one-family dwetl~n9 shall contain not less than sixteen hundred (1,600~ Square feet of liveable ~oor area. The accessory a~artment shall contain not less than four hundred fi[ty (qs0J ~quare feet of ~iva~le floor area. (e) ,T~e accesso~ apartment ~hall not exceed forty (a0~) percent of liveable /~oor area of the existing dwelling unit. (f) A minimum of three.(3] off-street parking space~ shafl be provided. (gl Not more than one (1) accessory apartment shall be permitte~ on a lot. (h) The acce~sor~ apartment shall meet the requirements of a dweil~ng unit a~ ~efineQ in S~:ion Z00-13 hereof. (I) The exterior entry to the accessory apartment shall, to the maximum extent Pos~i~e,'retain the existing exterior appearance of a one-family ~wetling. All exterior aJterat~on~ to the existing bud ng. except for access to the apartment, shall be maQe on :he existin~ founoation. (k~ Certlflca~e of OccuDancY shall :ermimate u~on the transfer of title by the owner, or upon the owner ceasin~ :o occupy one of the dwelllng unlt~ as the owner's principal re~ence. In the event of an owner, s demise, [he occupant of an accessory apartment ma~. continue in ocCUpancy until a new owner shall OCC~Dy the ~ ~ balance of the dwelling or one (1~ year from'da~e of saiO Oemise, whichever shall ~irst occur. (I)Ail conversions subi~t to ~nsoect~on of Bu~ldin9 Inspector Renewal of C~rt~f~cate of Occupancy annually. The building wh~ch]s converte~ to ~ermit an accessory a~artment shall be In existence and have a valid certificate of ~cupancy tssu~ prior to Janua~ I, (nj The existing building, togethe~ with the accessory aoartment, -__. shafl comply wl~ all other requirement~ of Chapter 100 of Town Code of the Town of Southold. (o) Notwithstanding the provisions of Section 100-30~ hereof, no site plan approval by the P~annin~ ~oar~ sha~l be requJrea for the e~tabllshment of an accessory apartment. ~P) ,Approval by the Suffolk County OeDnrtment of Health of the water supply and sewage disposa~ systems. J(1G~I~ The renting of not more than three (3) r~s *n an owner ~ccUo~e~ dwelling for lodging on~ serving of breakfast [o not ~ore six (G) ~sual aha transient roomers, prov~ea :ha~ :he renl~n~ of such r~ms for such pur~se Is clearly Inci~enta~ an~ subordinate to th.e principal use of the dwelling, sublet to the fo~owlng requirement s: (a) That ad~uate off.~[reet parking s~ace~ shafl be provide~ for such rente~ rooms in a~ltlon to parking spaces for the -17- Accessory uses. limited to the following [:1 uses and subject :o the conditions listed in Section 100~33 herein. (11 Any customary structures or uses which ~ [(111 (2_..~.) by this chaoter. No display of goods is visible from the street. Such occupation is incidental to the resldentiaJ use of the premises and is carried on {n the main building by the resident therein with not more than one nonresident assistant, (c) Such occupation is carried on in an area not to exceed [thirty percent [30~)I twenty-five (25~) of the area of [one (I) floort all floors ol the mare building [.j '~~oOrC~C~eoay* more than five (d) There shall be no exterior effect at the broperty line, or radiation. ~ H~me occuoatJons shah Jn no event be deemed to inctude: ~t dockin~ facilities for the docking, moorin~ or accom (b~ T~e Town Trustees shall anDrove new boat dockinq [(21l (~ ~arden house, :oolhouse, sJorage build,no plavh6use, Jhe resJden(iat use of the pr~ ~o~operateO lot ii said pool is Iocaled more Ihao four ~] f~el abgve [(3)! llq)l 1(~) I (8__[.~ 1(6}1 (9.__[I Individual outdoor tennis court related to residential use on a lot containinc~ a single-family detached dwelling F~rovided that the same's se~ back not less than s~x Private garages; provided, however, that not more than two (2) passenger automobile spaces in such garages may be leased to persons not resident on 'the premises. (6) Off-street parkin~ spaces accessory to uses on.the premis~ Not more than four (qJ off-street parl<in?spaces shall to subsection Q of Section 100-T'91 Suootemental parkinq, re~lations and the ~oilowincj requirements: [a}Such boat or trailer shall not exceed thirty (30) feet in length. (b} Such boat or trailer shall be stored only in the required with the area of all buildings in the rear yard, shall not exceed forty percent (q0%) of the area of the required rear yard. five (2-~} fowl shall not be c~nstructed within fifty (50} [(eJl fa) [One (1) indirectfyl Not more than two (2) non- illuminated nameolates or protess~onai signs each not more than two {2) sq~lare feet in area. - (bi Not more than [three {3J two (2) s gns with a combined total area of not more than~seventy-two (72) I forty- square feet in size on any one ~1) or more ~o~5, (101~ fifteen (15) ~eet from any lot Hne. ',Vhere acreaqe One (1) bulletin ~ard or other announcement or 308[2), (3}, [~), (6~, (7) and ~I01 hereofl I00-318(3), (q), (5), (61, ~8~ and {9) of the A~r~ultural ~tr~ct, not more than ~R~rty- wol eF~t~n (I~) square ~n area, ~ocated not less than Ifive (.15} feet from any street or lot Hne. -18- L / l_ TYPE OF USE Accessory apartment in existind one-family dwetlin(~ AntidUe shoo, auction ?allery. arts and crafts shoo and workshoo Apartment over store Auditorium. meetin~ hall Automobile laundry Bank Beach club or swim club breakfast enterprise Boardinc~ house, tourist house Boat and marine an?ne repair and Boatyard. inc~udin? boat sales and Bowlin~Lane Building, electrical or plumbin~ Cold storage plant Collec~e Conference fac Ii 0 rinkin~, establishments shellfish. Food orocessln? and packacl, in~, includmC~ fisd processlnc~ REQUIRED NUMBER OF PARKINC SPACES One Der accessory apartment in addition t~' two for one famdv dweilinq. One Der 250 sc]uare feet of sales area. One per aoartment in addition to business requirement s. One per 50 sc3ua~e feet of seatinc} area, but not Jess than one per four seats where provided,. One per employee olus a ten soace c~ueuinc~ line area for eact3 launar~ bay. feet oi gross floor area or three spaces per s()ace queum~ area f~r each drive-in teller, One soace per guest room in addition to One soace oer C~uest room in addition to Sales and rental oortion, three spaces, of ~ross door area. i~ grea~er. -64- TYPE OF USE and crafts Auditorium, m~-~lI Bowlin~ Lane College REQUIRED NUMBER OF PARKING SPACES One Der accessory a~ar tment in addition to two ~or one ~amiiv dweilinq.. One Der 250 square feet of sales area. One Der aoartment in addition to business requlremen ts. One per SO sauare feet of seatin? area. One per emoloyee Dias a ten space queuinc~ line area for each launOr¥ t)ay. Ten spaces or one soace for each 100 sduare One soace der 9uest room in addition t One soace de? c~uest room in addition to One space :0er 250 sauare feet of ?ross floor -6q- SUFFOLK COUNTY "hq- I" ~ e oeral /Y/ul~ ie "¢" L. ip~f JUDITH T. TERRY OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD To: Southold Town Zoning Board of Appeals From: Judith T. Terry, Southold Town Clerk Dated: September 28, 1988 Transmitted herewith is Zoning Appeal No. 3785 Charles Zahra and Raymond Nine Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 TELEPHONE (516) 765-1801 application of for a Special Exception. Also included is Notification to Adjacent Property Owners; Short Environmental Assessment Form; Certificate of Occupancy for Non-conforming Premises; survey of property; and any other attachments relative to this application. Judith T. Terry " Southold Town Clerk d LIJ 0' NINE~ Southold Town Board of Appeals MAIN ROAD- STATE ROAD 25 SOUTHOLD, L.I., N.Y. 1]~?~ APPEALS BOARD MEMBERS October 26, TELEPHONE(516) 765-1809 1988 GERARD P. GOEHRINGER, CHAIRMAN S .E .O~.R .A. CHARLES GRIGON~S, JR. SERGE DOYEN, JR. NEGATIVE ENVIRONMENTAL DECLARATION JOSEPHH.$AWlCKI Notice of Determination of Mon-Significanc~ James Dinizio, Jr. APPEAL NO.: 3785SE PROJECT NAME: RAYMOND NINE AND CHARLES ZAHRA 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. This board determines the within project not to have a sig~{ifi- cant adverse effect on the environment for the reasons indicated below. Please take further notice that this declaration should not be considered a determination made for any other department or agency which may also have an application pending for the same or similar project. TYPE OF ACTION: [ ] Type II [~ Unlisted [ ] Exempt DESCRIPTION O~ ACTION: Permission to establish "Bed and Breakfast Use" LOCATION OF PROJECT: Town of Southold, County of, Suffolk, particularly known as: New Suffolk Ave., MattituQk, NY 114-11-20 more REASON(S) SUPPORTING THIS DETERMINATION: (1) An Environmental Assessment in the short form has been submitted which indicates that no significant adverse effects to the environment are likely to occur should this project be imple- mented as planned; (2) This is an application concering use of premises and is not directly related to new construction. (3) The relief requested is not directly related to new construction. FOR FURTIIER INFORMATION, PLEASE CONTACT: Linda Kowalski, Secretary, Southold Town Board of Appeals, Town Hall Southold, NY 11971; tel. 516- 765-1809 or 1802. ' ' Copies of this notice sent to the applicant or his agent and posted on the Town Clerk Bulletin Board. mc C STATE OF NEV~RK) )SS: COUNTY OF SUFFOLK) of Mattltuck, in Christina Co~.tent:o ~nld County, being duly sworn, says that be/she is Principal Clerk of THE SUFFOLK TIMES, e Weekly Newspaper, published et 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 _] weeks successively, commencing on the 20 day of October 19 _88 Principal Clerk Legal Notices NOTICE OF HEARINGS NOTICE IS HEREBY GIVEN, pv~mnt t 6'~.~o~ 267 of the Town Law and the Code of the Town of Southeld, the fcflowins he·rinse will ]~~ at · Regular Meetin~ at the So~thold Town HaH, Main Read, Sou·held. NY 11971, on WEDNESDAY. OCTOBER 26_ 1988 at the following llme~: 7:30 p.m. AppI. No. 3773 - GRETCHEN K. HEIGL. Variance to the Zoning Ordinance, Article I~, Section 100-31 for permission to connect deck to po~ch, leaving an in- sufficient setback from the sooth(westerly) property llne. Loca- tion of property: P~vate R~ght~of- Way extruding off the North Side of Smmdview_ Avenue, Sou·hold, NY; Co~mty Tax Map DisuSe· 1000, Sec- lion 68, Block 1, no~hedy part of Lm 14 (now 14,1), 7:40 p,m. AppL No. 3784 - JAMES YOUNG. Variance to the Zc~in8 Ordinance, A~icle IH, Section 100-31 for permission to c~mstrnct addition to dwelling with insufficient fret yard setbacks from the westerly and ~ou~crly property lines, Loc··inn of Property: NE/s Mirmehaha Boule- yard at "Laughing W&~gn," Sou·held, NY; County Tax Map District 1000, Section 87, Block 3, Lea 8. 7:45 p.m. Appl. No. 3772 - JOHN G. PHILIPpIDES. Variance Section 100-119,2 for pennbsien to co~stmc~ deck addition at mar of ex- / is~ng dwelling with an insufficient setback from exhllnS bulkhead. Lo- carton of Prcpem7: South Side uf Old Cove Road. Se~thold, NY; County Tax Map District 1000. Secde~ 52, Block 2, Lo~ 10. L ~'"~7:50 p.m. Appl. No. 378~ RAYMOND NINE and CHARLES~ ZAHRA. Special Exceptio~ to the 100-308i16} for permission to tabUsh "Bed and Breakfast U~e,* "an owner-occupied beildin8, mher than · howl, where lodging and breakfast is provided for not more than six casual, transient ro~ers, and re.tins of not more than three rooms. Locative of Prope~y: No~h Side of New Suffolk Avenue, Mau~tack, NY: Coonty Tax Map District 1000, Section 114, ?:55 p.m. AppL No. 3777 CARL L AND RUTH ¥. NEI.~ON. Yariances to the Zoning Ordinan~, Afficl¢ II1, S~aions 100-31 and 32, ~l Arfid¢ XI, S~'fion I00-119.1 for pem~issi~m to construct tennis court with 10-ft. high fencing in thc frc~tyard ama and teal lea cove.rage in excess of the ~um-permiued 20 Swom to be~re me thb ~I._~_~ f/~fl~ '19 ~d~_. ~ K. '/p~BLIC, State oi New / / / ~1 ~u,0~ ~"'~'~..a~19 ~/. M~'s ~e. G~. ~; ~t- '~m Sho~s Su~i~sinn. ~d~ 3. * ~ 99; C~nty Tax Map I~. ~ 33. BI~ 2. ~ 43. 8:05 p.m. A~I. No. 3786 - M~ON SA~O~. V~mce to ~e ~ng Or~ A~ ~. us~. ~don o[ ~: 66~5 C~ 48. G~ ~; ~ T~ 8:10 p.m. A~.' No. 3762 - RO~ERT G. ~ND DIANNA BA~. ~ md B~m~ 2~ Bolss~u Av~. Sou·bold; 5~KEN~ &~A~O, ~C. ~dm ~ ~: ~ S~e of F~t S~et ~te ~ ~; C~ T~ M~ ~ 1~, A~I. No. 3783SE - ~ ~- ~ m ~e ~g ~, Ar- ticle ~, ~cd~ 1~ f~ ~- si~ of ~e p~sent ~ ~ ~e - ~d~ of n n~ ~ m ~ ud- ~ for ~c ~s~g a~e ser- vice s~d~ and pubiic gu~gu, in addid~ to ~c c~tinu~ s~es of BY ~DER OF BO~ OF A~ G~ P. ~E~G~ Sust 4 1988 Site Plan. -' Appi.'~,o~ 3782. Va·ia·ce to' th~* ~.. Z~nlns Ordinance, Article VI~ Sec- ~ e~tins bmldi~to ~ (~ocay) slo~ which is ·el as·odes a permit- ted use in this "C-Lisht hidumi~[ Zone District, in addition to the existing sales us~ (uf sasoUne and diesel) and p~pesed new b~ldinS for 8:30 p,m, AppL No. 3708 - DAVID WALKER/rURTLB ASSO- 31, for appmwl of parcel as exists with insufficicm lot ama and width and mom pa~ienlady described in Deed at Liber 8721 page 433 dated October 25,1979, bevin~ been sct-~f without Planning Board approval. Location of Property: 1300 Marratoeka Lane, Mattituck, NY; County Tax Map District 1000. Section 115. Blodt 3, Lm 18.3 The Bo~rd of Appeals will at said time md place hear any and aH per- sons or representatives desirlns to be heard in each of the above matters. Wrluen comments may also be sub- mit·ed p~or to the conclusion of the subject hearing. Each he~inB will nm start before the time allotted. For mom inform~sim, please call 765- 1809. 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 WEDNESDAY~ OCTOBER 26, 1988 at the following times: 7:30 p.m. AppL No. 3773-- GRETCHEN K. HEIGL. Vari- ance to the Zoning Ordinance, Article Ill, Section 100-31 for permission to connect deck to porch, leaving an insufficient setback from the south(westerly} property line. Location of Pro- petty: Private Right-of-Way ex- tending off the North Side of Soundview Avenue, Southold, NY; County Tax Map District 1000, Section 68, Block 1, north- erly part of Lot 14 (now 14.1). 7:40 p.m. Appl. No. 3784~ JAMES YOUNG. Variance to the Zoning Ordinance, Artic~./ Ill, Section 100-31 for permis-. sion to construct addition to dwelling with insufficient front yard setbacks from the westerly and southerly property lines. Location of Property: NE/s Minnehaha Boulevard at Laugh ng Waters, Southold, NY; County Tax Map District 1000, Section 87, Block 3, LOt 8. ...,..~.~7:45 p.m. Appl. No. 3772-- JOHN G. PHILIPPIDES. Vari- ance to the Zoning Ordinance, Article XI, Section 100-119.2 for permission to construct deck ad- dition at rear of existing dwell- ing with an insufficient setback from existing bulkhead. Loca- tion of Property: South Side of Old Cove Road, Southold, NY; County Tax Map District 1000, Section 52, Block 2, .Lot 10.1. CHARLES ZAHRA. Special Exception to the Zoning Ordi- nance, Article Ill, Section i 100-30B[16} for permission to ~ establish "Bed and Breakfast ~ Us<' "an owner-occupied bu d- p' ing, other than a hotel, where lodging and breakfast is provid- ed for not more than six casual, transient roomers, and renting of not more than three rooms. Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; County Tax Map District 1000, Section 114, Block 11, Lot 20. ~ ~ 7:35 p.m. AppL No. 3777-- CARL J. and RUTH V. NEL- SON. Variances to the Zoning Ordinance, Article Ill, Sections 100-31 and 100-32, and Article X.I, Section 100-119.1 for permis- sion t onstruct tennis court with~ high fencing in the frontyard'~-'-' area and total lot coverage in excess of the maxi- mum-permitted 20 percent. Location of Property: 1060 Moore's Lane, Greenport, NY; Eastern Shores Subdivision, Section 3, Lot 99; County Tax Map District 1000, Section 33, Block 2, Lot 43. 8:05 p.m. AppL No. 3786-- MARION SACCONE. Variance to the Zoning Ordinance, Arti- cle Ill. Section 100-30, for per- .mission to replace nonconform- ing trailer with new single-family dwelling, in addition to the es- tablished dwelling structures and uses. Location of Property: 6~75 C.R. 48, Greenport, NY; County Tax Map District COUNTY OF SUFFOLK ss: ~TEOF 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 ............ t~..~...'~.... ....... ...... . ........... ROBERT O. and DIANN.~,"- BAKER. Bed and Breakfast proposal, 2900 Boisseau Ave- hUe, Southold; 1000-55-6-9. (Re- cessed from October 6, 1988). - ................. day of 8:15 p.m. JOSEPH A. STOC- KEN/M&N AUTO, INC. Loca- 1 9. lion of Property: SOuth Side of .... Front Street (Route 25), Green- port, NY; County Tax Map Dis- trict 1000, Section 45, Block 6, Lot 5: Appl. No. 3783SE--Special Exception to the Zoning Ordi- nance, Article VIII, Section 100-80 for expansion of the pre- Sent property by the addition of a new building to be utilized for the existing automobile service station and public garage, in ad- dition to the continued sales of gasoline and proposed retail (grocery) store uses, all as shown on the August 4, 1988 S te Plan. Appl. No. 3782--Variance to the Zoning Ordinance, Article VIII, Section 100-80 for permis- sion to convert existing building to retail (grocery) store, which is · not listed as a permitted use in this "C-Light Industrial" Zone District, in addition to the exist- ,- ing 'sales use (of gasoline and diesel) and proposed new build- ing for automobile servicing. 8:30 p.m. Appl. No. 3708-- DAVID WALKER/TURTLE ASSOCIATES. Variances to the Zoning Ordinance, Article I11, Section 100-31, for approval of parcel as exists with insufficiea lot area and width and mor, Particularly described in Deed at Liber 8721 page 433 dated Oc- tober 25, 1979, having been set- off without Planni ag Board ap- proval. Location of Property: 1300 Marratooka Lane, Matti- tuck, NY; County Tax Map Dis- trict 1000, Section 115, Block 3, Lot 18.3 (previously part of 18.2). The Board of Appeals will ai 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· Each hearing will not Start before the time al- lotted. For more information, please call 765-1809. Dated: October 6, 1988. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD R GOEHRINGER, CHAIRMAN By Linda Kowalski IX, 10/20/88 (3) 'y Public ARA A. $OHNEIFER LIBLIC, State 0t New No. 4806846 ed in Suffolk C~¥ ssion Expires ~_//~ Southold Town Board of Appeals MAIN ROAD [STATE ROAD 25 SOUTHDLD, L I., N.Y 11971 TELEPHONE (516) 765-1809 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH R. SAWICKI Qames D~n~z~o, dr, TO WHOM IT MAY CONCERN: Enclosed herewith as confirmation of the time, date and place of the public hearing concerning your recent application is a copy of the Legal Notice, as published in the Long Island Traveler-Watchman, Inc. and Suffolk Times, Inc. Please have someone appear in your behalf at the time specified in the event there are questions brought up during the same and in order to prevent a delay in the processing of your application. Your public hearing will not start before the time allotted in the attached Legal Notice. Please feel free to call our office prior to the hearing date if you have any questions or wish to update your file. Yours very truly, GEP3%RD P. GOEHRINGER CHAIRMAN S th Id To d lApp Is x:~.~ TELEPHONE (516) 765-1809 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWICKI James Dinizio, Jr. 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 WEDNESDAY, OCTOBER 26, 1988 at the following times: 7:30 p.m. Appl. No. 3773 - GRETCHEN K. HEIGL. Variance to the Zoning Ordinance, Article III, Section 100-31 for permission to connect deck to porch, leaving an insufficient setback from the south(westerly) property line. Location of Property: Private Right-of-Way extending off the North Side of Soundview Avenue, Southold, NY; County Tax Map District 1000, Section 68, Block 1, northerly part of Lot 14 (now 14.1). 7:40 p.m. Appl. No. 3784 JAMES YOUNG. Variance to the Zoning Ordinance, Article III, Section 100-31 for permission to construct addition to dwelling with insufficient front yard 'Z.B.A. Legal Notice -2- October 2, 1988 Hearings setbacks Location of Property: Waters," Southold, NY; Block 3, Lot 8. from the westerly and southerly property lines. NE/s Minnehaha Boulevard at "Laughing County Tax Map District 1000, Section 87, 7:45 p.m. Appl. No. 3772 - JOHN G. PHILIPPIDES. Variance to the Zoning Ordinance, Article XI, Section 100-119.2 for permission to construct deck addition at rear of existing dwelling with an insufficient setback from existing bulkhead. Location of Property: South Side of Old Cove Road, Southold, NY; County Tax Map District 1000, Section 52, Block 2, Lot 10.1. /B 7:50 p.m. Appl. No. 3785SE - RAYMOND NINE and CHA/{LES ZAHRA. Special Exception to the Zoning Ordinance, Article III, Section 100-30B{16} for permission to establish "Bed abd / reakfast Use," "an owner-occupied building, other than a hotel, where lodging and breakfast is provided for not more than six casual, transient roomers, and renting of not more than three rooms. Location of Property: North Side of New Suffolk Avenue, Mattituck, NY; County Tax Map District 1000, Section 114, Block 11, Lot 20. 7:55 p.m. Appl. No. 3777 - CARL J. AND RUTH V. NELSON. Variances to the Zoning Ordinance, Article III, Sections 100-31 and 100-32, and Article XI, Section 100-119.1 for permission to construct tennis court with 10-ft. high fencing in the frontyard area and total lot coverage in excess of the maximum-permitted 20 · Z.B'~A. Legal Notice -3- October 1988 Hearings percent. Location of Property: 1060 Moore's Lane, NY; Eastern Shores Subdivision, Section 3, Lot 99; Map District 1000, Section 33, Block 2, Lot 43. Greenport, County Tax 8:05 p.m. Appl. No. 3786 - MARION SACCONE. Variance to the Zoning Ordinance, Article III, Section 100-30, for permission to replace nonconforming trailer with new single-family dwelling, in addition to the established dwelling structures and uses. Location of Property: 66075 C.R. 48, Greenport, NY; County Tax Map District 1000, Section 40, Block 2, Lot 7. 8:10 p.m. Appl. No. 3762 - ROBERT G. AND DIANNA BAKER. and Breakfast proposal, 2900 Boisseau Avenue, Southold; 1000-55-6-9. (Recessed from October 6, 1988). Bed 8:15 p.m. JOSEPH A. STOCKEN/M & N AUTO, INC. Location of Property: South Side of Front Street (Route 25), Greenport, NY; County Tax Map District 1000, Section 45, Block 6, Lot 5: Appl. No. 3783SE - Special Exception to the Zoning Ordinance, Article VIII, Section 100-80 for expansion of the present property by the addition of a new building to be utilized for the existing automobile service station and public garage, in addition to the continued sales of gasoline and proposed retail (grocery) store uses, all as shown on the August 4, 1988 Site Plan. · Z.~..A. Legal Notice -4- October 1988 Hearings Applo No. 3782 - Variance to the Zoning Ordinance, Article VIII, Section 100-80 for permission to convert existing building to retail (grocery) store, which is not listed as a permitted use in this "C-Light Industrial" Zone District, existing sales use (of gasoline and diesel) building for automobile servicing. in addition to the and proposed new 8:30 p.m. Appl. No. 3708 - DAVID WALKER/TURTLE ASSOCIATES. Variances to the Zoning Ordinance, Article III, Section 100-31, for approval of parcel as exists with insufficient lot area and width and more particularly described in Deed at Liber 8721 page 433 dated October 25, 1979, having been set-off without Planning Board approval. Location of Property: 1300 Marratooka Lane, Mattituck, NY; County Tax Map District 1000, Section 115, Block 3, Lot 18.3 (previously part of 18.2). 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 Legal Notice -5- October 1988 Hearings prior to the conclusion of the subject hearing. Each hearing will not start before the time allotted. For more information, please call 765-1809. Dated: October 6, 1988. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER, CHAIRMAN By Linda Kowalski Notice to Newspapers: Please publish the above Legal Notice once, to wit, Thursday, October 20, 1988 and forward one Affidavit of Publication to: Board of Appeals, Main Road, Southold, NY 11971. Thank you. ~ S~ th Id TO lApp Is ou o wn Board o ea MAIN ROAD' STATE ROAD 25 SDUTHOLD. L.I.. N.Y. 11971 TELEPHONE (516)765-1B0g APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH H. SAWlCKI James Dinizio, Jr. List of Mailings Hearings for October 26, 1988 Southold Town Board of Appeals Copies to the following on or about October 14, 1988: Mr. and Mrs. Frederick Heigl P.O. Box 32, Peconic, NY 11958 Mr. William Chamberlain (Re: Heigl) Huntington Station, NY 11746 22 Bowden Drive, Horton Construction Co. Attention: Mr. Gerry L. Horton P.O. Box 1442, Mattituck, NY 11952 Mr. John G. Philippides 35 Avalon Road, Garden City, NY 11530 I~' Charles Zahra and Mr. Raymond Nine 1830 Mattituck, NY 11952 Pike Street, Mr. and Mrs. Carl J. Nelson P.O. Box 373, Greenport, NY 11944 Mr. and Mrs. William L. Schroeher (Re: Nelson) 525 Greenhill Lane, Box 608, Greenport, NY 11944 J~u~ha ~t F~,ii'y J. Kevin McLaughlin, Esq. 828 Front Street, Greenport, NY 11944 as Attorney for Marion Saccone as Attorney for Joseph A. Stocken as Attorney for Turtle Associates (David Walker) William D. Moore, Esq. Box 23, Suite 3, Mattituck, NY 11952 as Attorney for Mr. and Mrs. Robert Baker Legal Notice of Hearings for October 26, 1988: Copies to the following on or about 10/14/88: Mr. and Mrs. Robert G. Baker 2900 Boisseau Avenue, Southold, NY 11971 Gary Flanner Olsen, Esq. (Re: Walker/Turtle Associates) as Attorney for Mr. and Mrs. J. Lowell Main Road, Box 706, Cutchogue, NY 11935 Mr. and Mrs. Jackson Lowell 1100 Marratooka Lane, Box 266, Mattituck, NY 11952 Mrs. Catherine Woodhull Marratooka Lane, Mattituck, NY 11952 Charles R. Cuddy, Esq. 180 Old Country Road, Box 1547, Riverhead, NY 11901 L.I. Traveler-Watchman, Inc. (Official Town Newspaper) Suffolk Times, Inc. Town Clerk Bulletin Board ZBA Office Bulletin Board ZBA Chairman and Members with copies from file ZBA Individual Files ,14-~6-4 (2/87)--Text 12 PROJECT LD. NUMBER 617.21~ Appendix C State Environmental Quality Review SHORT ENVIRONMENTAL ASSESSMENT FORM For UNLISTED ACTIONS Only SEQR PART I--PROJECT INFORMATION (To be completed by Applicant or Project sponsor) 1. APPLICANT/SPONSOR 2. PROJECT NAME 3.PROJECT LOCATION: Mu.,c,pality /% County $'"?/-'' 4. PRECISE LOCATION (Street address and road intersections, prominent landmarks, etc., or provide map) North Side of New Suffolk Avenue, Hattituck Suffolk County Tax Map # 1000-114-11-20 5. IS PROPOSED ACTION: [] New [] Expansion [] Modification/alteration 6. DESCRIBE PROJECT BRIEFLY: 7. AMOUNT OF LAND AFFECTED: Initially ~/~----' acres Ultimately ~'~---- acres 8. WILL PROPOSED ACTION COMPLY WITH EXISTING ZONING OR OTHER EXISTING LAND USE RESTRICTIONS? DYes [] No If NO, describe briefly 9. WHAT IS PRESENT LAND USE IN VICINITY OF PROJECT? ~Residential [] Industrial [] Commercial [] Agriculture [] ParkJForest/Open space [] Other Describe: 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 11. DOES ANY ASPECT OF THE ACTION HAVE A CURRENTLY VALID PERMIT OR APPROVAL? [] Yes J~ No I.~ ye~, list agency name and permil/approva~ 12. AS A RESULT OF PROPOSED ACTION WILL EXISTING PERMIT/APPROVAL REQUIRE MODIFICATION? [] Yes [] No I CERTIFY THAT THE INFORMATION PROVIDED ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE Applicant/sponsor name: ~/~'-~ 2W,,~'(3~ .~-~y ~1'/3. ~' Dale: 9/21/88 If the action is in the Coastal Area, and you are a state agency, complete the Coastal Assessment Form before proceeding with this assessment OVER 1 (Continued on reverse side) The N.YoS. Environmental Quality Review Act requires submission of this form, and an environmental review will be made by this board before any action is taken. SHORT ENVIRONMENTAL ASSESSMENT FORM INSTRUCTIONS: ~ (a) In order to answer the questions in this short EAF Lt is assumed that the preparer will use currently available information'concern~ng the project and the likely impacts of the action. It is not expected that additional studies, research or other investigations will be undertaken. (b) If any question has been answered Yes the project may be sig- nificant and completed Environmental Assessment Form is necessary. (c) If all questions have been answered No it is likely that the project is not significant. (d) Environmental Assessment 1. Will project result in a large physical change / to the project site or physi'cally alter more than 10 acres of land? ~es 2. Will there be a major change to any unique or unusual land form on the site? Yes 3. Will project alter or have a large effect on an existing body of water? Yes 4. Will project have a potentially large impact on groundwater quality? Yes 5. Will project significantly effect drainage flow on adjacent sites? Yes 6. Will project affect any threatened or endangered plant or animal species? YesVNo 7. Will project result in a major adverse effect on air quality? Yes 8. Will project have a major effect on visual char- acter of the community or scenic views or vistas known to be important to the community? Yes 9. Will project adversely impact any site or struct- ure of historic, pre-historic, or paleontological importance or any site designated as a critical envirc~mental area by a local agency? Yes 10. Will project have a major effect on existing or future recreational opportunities? Yes 11. Will project result in major traffic problems or cause a major effect to existing transportation systems? 12. Will project regularly cause objectionable odors, noise, glare, vibration, or electrical disturb- ance as a result of the project's operation? 13.Will project-have any impact on public health or safety? 14. Will project affect the existing community by directly causing a growth in permanent popula- tion of more than 5 percent over a one-year period or have a major negative effect on the charact~r of the community or neighborhood? Is there public controversy concerning the project? 15. Preparer's Signature: Representing: ZBA ~/75 Yes Yes /No Yes ~ Yes Date: TOWN OF SOUTHOLD OFFICE OF BUILDING INSPECTOR TOWN HALL SOUTHOLD, NEW YORK CERTIFICATE OF OCCUPANCY NONCONFORMING PREMISES THIS IS TO CERTIFY that the Land Building(s) Use(s) Pre C.O. #-z-17148 Date- August 2, 1988 Mattituck, New York Hamlet Section located at 635 New Suffolk Avenue Street shown on County tax map as District 1000, ~14 , Block ~ , Lot 20 , does(not) conform to the present Building Zone Code of the Town of Southold for the following reasons: Insufficient total area; side yard set-back for accessory garage. On the basis of information presented to .the Building Inspector's Office, it has been determined that the above nonconforming ~ Land /x__~ Building(s) ~ Use(s) existed on the effective date the present Building Zone Code of the Town of Southold, and may be continued pursuant to and subject to the applicable provisions of said Code. IT IS FURTHER CERTIFIED that, based upon information presented to the Building Inspector's Office, the occupancy and use for which this Certificate is issued is as follows: ..Prpperty contains a 2 story~ one family wood framed dwelling, with two attached porches; ~ black top driveway; an accessory garage, all situated in 'A' Residential Agricultural zone, with access to New Suffolk Ave., a town maintained road. The Certificate is issued to RAYMOND F. NINE (owner, ~X~XX~ ) of the aforesaid building. Suffolk County Department of Health Approval N/A UNDERWRITERS CERTIFICATE NO. N/A NOTICE IS HEREBY GIVEN that the owner of the above premises HAS NOT CONSENTED TO AN INSPECTION of the premises by the Building Inspec- tor to determine if the premises comply with all applicable cod~s and ordinances, other than the Building Zone Code, and therefore, no such inspection has been conducted. This Certificate, therefore, does not, and is not intended to certify that the premises comply with all other applicable codes and regulations. Building Inspector ,~/'~¢~day of November , rfineteen hundred and S~ty-fouP BE~g~ FLORIDA NATIONAL ~ AT 0RLA~0, as Ancilla~ Co~Gittee of the p~opo~ty within tho State of New Yo~k of Selma H. h ~l~ Reeve, p~suaut to au o~de~ entered 0ctobe~ l, .1964 i¢ the ~ ~ . Supreme Co~t, S~folk County, with principal office at ~ 0rlaudo Florida, rty of the first part. ~d ~[0~ P. 1,1~, ~esidiug at Mattituck, Suffolk County, New Tork, mrty 0i the seCOnd part, W..II~N. F..~I:tt, that the party of the first part, in consideration of Ten Dollars and other valuable consideration pasd by the party of the sec?nd part, does hereby grant and re case unto the party o£ the second part, tile heirs or successors and assigns ot the party of the second part forever, ALI~ that certain plot, piece .or parcel of land, with the buildings and improveafients thereon erected, situate, 'lying and being inthe T0~N OF SOUTIt0LD, at Mattituck, County of Suffolk and State 0f New York, bounded and described as follo,m: ~ '.i ~;: BEGINNING at a point on the northerly side of Non Suffolk '.Avenue 'where same is intersected by the westerly line of land now ~or fol*merly of RaYmond Nine, said point being distant 792.70 feet easterly, as measured along the northerly side of Neu Suffolk Avenue, from the co~ner formed by its intersection with the easte~.ly ~ side of the Main Road; and running thence north 86~ 09t west along ,!the northerly side of New Suffolk Avenue 107.50 feet to laud now ox- fomunerly of Evellrn K. Reeve; thence along said land of Evelyn K. Reeve'no~'th 20 1St 40" east 200.0 feet to land now or formerly pf the H. H. Reeve Estate; thence'along said laud of the H. H. Reeve Estate south 86o 09t east 98.80 feet to the aforesaid laud ~o£ Raym~ond Nine; and thence along said laud of Ra!nnoud Nine south 0° 10~ 30" east 200.43 feet to the northerly side of Nm,~ Suffolk · .A,v.,,e, uue at the point or place of BEGINNING. ~. :.~, ~ ._ · :. ....~ e' TO~ETIt.ER _with all right, title ahd interest, if any, Of the party of the first art in an roa_,ds,abu, ttlng the above described premises to the center nes thereof. 'r,q~n~,, .~,d t.,o any streets and HOnD the prem scs her~in .rafi;~ uv;~;'t~'-' L'2L2~ .p~ar[ m an.a to ~ajd pr.emises; TO tlAVE AND TO the party oj~tne .secon~ part iorever. ~ AND the party of the.first par covenants that the party of the first rt has not done or whereby the said orermses haw' I~ ........ ~ ~ . . pa suffered an thlu AND the party otrthe first n.~ '~'~o~'~m~u.-eJ-e--a:-[n ~any..way. ~wn.at.ever,.except as aforesaid. Y g ehe first part wall receive the consideration for thl .......... .~ ..... ~_ ,~ .~ , . .mt the p~rty eratlon as a trust fund to be applied first for the purpose of paying the cost of the improvement and ill apply the same first to the payment of the cost of the improvement before using any part of thc total of th~Vsame for any other purpose. ...... The word "party" shall be construed as if it read "parties" whe~eve} the sense of this indenture IN WITNE.~ WItF..R~OF, :the party of the first ~rt has '~-' ' 7 ~' ....... so requires. w umy execmeo tins aeett the oay and written. I~iTN~j~ '. , ....... /f-j, ~',l'i.'~~'~.~ ....' - ....... . -ST,~t~4*OF'NEW YORK, COUNTY OE On the day of personally same to me known Jo be the individual 19 , before me described in and who executed the foregoing instrument, :and acknowledged that executed the ~ame. ' FLORIDA ORANGE STATE OlqlJ~LI~Gt,~C~i~G COUNTY OF .]~L[.II~ sst personally~me : ~. T. Tinsloy~ ,Jr., me to me known, who, ~ing by me ~uly swoin~ did de.se ~d say that h~ r~ides at ~ Orlando,' ~loPida that be is ~e Vice-President & T~st 0~ o~ Florida National Ba~ at Orlando STATE OF NEW YORK, COUNTY OF · On the day of 19.. 'befi~re me personally came ' -, to me known to be'the i.'di.id;, S 'rlbed' in 'and .,So- executed the foregoing instrument, an:~d '.a~nowledggd. that executed the same. STATE OF NEW YORK, COUNTY OE personally came: Y~' pt ! ; 19 -, bef~r-~--m~--- the subscribing .witness to the fore~oin., in whom I am personal!y acqumnted, who, being by me duly sworn, did depose ann say that he resides at No. .eot that he knows , the. corporation described in and which executed the foregoing :nstrument; that he knows t.he seal of said corporation; that the seal affixed descri ..... to be .the individual t°-s~ .~3~ument is such Co--rate s '. -- ' oea :n ,ann WhO executed the fore om i /~a.~_~.'~:L°~,pf the board o~di.-.-,~e-a-l'-t, tmt.,~t was so that he, sa,d subscribin~ witness L,~//' ~.~,~i ..t~, ,~..r~o,..s,gned h i~ame thereto by like orrrd:~, at the ,amc ~cute ,the .s, am.e.; and that he, said w tness, ~ -,.-: , ". ' ..~ .~ me suoscnoecl n name as witness thereto. ~.'o~'-j/~,,,.,~XC, et i Notary Pub~Dc '~0 ' ~'~ "*"'~" ~-" '" MY COMMISSION EXP RES APR B &l A / ,r ~ · ' ~ ~ ...... S ' , -S..-,.a-.L'--~ ~_ ,, STATE OF FLORIDA, COUNTY OF ORANGEt ' ' ~; ' L ARTHUR 9,'. NEWFJ I .Counly Clerk and Clerk of IIle Circuit Court of the aforesaid County. tJ~e ,,ia court being & CouTt o~ Record having hy I,w . Se.f, O0 HEREBY CERTIFY ,h,, IX)ROTHY L. JONES ~ ' ' ' ' who ~i~neA the n~knowleclsment on .the following desctlhec[ instrument, w&~ on tl~e date of the acknowledgment · N O T A R Y ~ Bar~atn & Sal~ Deed ' Nov. 2h~ 196b. ? ,~' ~ ..~,:~C,~l~j~ ;r~'~ GRANTOR F.T. TtI~LEy: JR.: Vtce-l~esident & Trust Offtcev of .':-X. : -,, ~ = ~ ~ ~ ~. ~3..,~..,~-;;-~''~ ...... ~ ............ 0 ,'V) P Clerk of Suffolk ~un~ Memorandum from... · $outhold Town Board of Appeals TOWN HALL, SOUTHOLD, N.Y. 11971 765-1809 Date: 2/27/89 To: James A. Schondebare, Town Attorney Robert H. Berntsson, Asst Town Att. From: Jerry Goehringer, Z.B.A. Chairman Attached are copies received today from Eric J. Bressler, Esq. concerning the Nine and Zahra Bed and Breakfast Proposal ,scheduled for a public hearing March 9, 1989. Comments (if any), please. Sonthold, the following bearings will Peconic Bay Boulevani, Lautul, NY; pursuant to New Yod~ Town Law, ~ M-Il Zune District. Property Loca- be held by the SOUTHOLD TOWN ~ CountyrTax Map District 1000, Sectlen280-afor~pprovalofnccets ! lion: West Side of Wickham Avenue. BOARD OF APPEALS at a ReguI~ Secsion 128, Block I. LOtlI; ove~ptivateti~ht-of-wny~nudtoas _ Mattituck. IVy; County Tax Map Meeting. at the Southold Town Hall, L 7:50 p.m. Appl. No. 3823 -- Main Road. Sunthold. NY 11971, m ~ ' THOMAS THOMPSON. Variance to THURSDAY, MARCH 9, 1989, at the Zoning Ordinance, Anlcle In', the folinwing times: Section 100-32, and Bulk Schedule, 7:30 p.m. Appl. No. 3826 ~ GLADYS W. HOWEL~ Variance to ~' f°r approval °f existlng swlmmln8' VI~ pool with deck a~as winch will have Om Z~nln8 Ordinance, A,i¢in : ~m insufficient ~.a~yard setback when Section 100-71 for ~,p~,oval of cunt ' '~ ve~inu of e~tistin8 accesse~ buildin8 attacbed by a mlsed dech to the tear of the e~cistin8 dwelling. Zone Diat~ct: for dwelling uso. a~essory to tho main dwelling stmctons, in this Resi- dentlal. Offtce (RO) Z~e I)is-td~ Looatio~ of Prepurty: 51470 Main Road. Southold, NY; County Tax Map Disui~ 1000, Se~m 70, Block 7:35 p.m. Appl. No. 3825 -- SUSAN A. FORBES. Variance to tbe 100-244 for approval of ~pun deck addition with an iusuffinient fmut nun-~mfonnln{ at app~ox/mato{y 11,300 sq. ft. in this R-80 Zoue' DiatHct 7:40 p.m. AppL No. 33813 -- SHELDON IOl.l_q as Trustee for Barterama Co~. Employee~ Profit Sbedn8 Tmsc Variances to the Zon- 100-32C and Columu iii o/the Bulk Cutchogue. NY; Lot #10 ou Map of Ismar Ac~es (Approved March 13, 1973); County Tax Map District 1000, S~tlcm 85, Block 2, Lot 22. 7:55 p.m. Appl. No. 3830 ~ REV. CHARL~-q BELL. Variances to tho Zonin80~dlnance, Article HI- .. A, Section 100-32A, and Bulk Schedule. for permission to conslmct ~ additlun nt rear o/~xis~ng dwelling Zone Disuict: R-40. Location of Pr~erty: 1330 Donna Drive. Matti- tuck, NY; Lot #32, Deep Hole Creek Estates; County Tax Map District 1000, Section 115. Block 15. Lot 15. 8:00 p.m. Appl. No. 3814 -- Silkworth Road extending from tho Diatrlc~ 1GO0, Section 114, Block 3, east side of Westphalia Avenue Lot 1. (Read), Matlituck, NY. Zone DistHcm: Thc Board of Appeals will at said R-40. Location of Property: Lot #1, time and place hear any and all per- Map of Point Pleasant; County Tax sons or rep~sentstives desiring to be Map District 1000, Section 113, heaM in each of the above matrons. 8:20 p.m. Appl. No. 3785 -- I Wdueu comments may also be sub- mlited ptior to tho conclusion of the ~AYMOND F. NINE, PAMELA subject hearing. Eschheadngwiilnot ~ AND CHARLES ZAHRA. . start before the time allc~ted. For Special EXcel~on to the Zoning Or- more i~formation, please call 765- dimmce. A,mlcla ITl. A, Section I00- .1809. 3lA(B) for permission to establish "Bed and Es~fast Use," 'm~ owner- BY ORDER OF THE occupied building, other than where lodglng and breakfast is pro. ~ i: ' SOUTHOLD TOWN BOARD O]~ APPEALS vlded for nm more than six ea~ual. GERARD p. GOEHRI]VGER mmslent m~me~, and ~mln8 ofuot mom than d~m moms.' in conjunc: tion with owner-occupancy as a sin- ·,,,., ,.,~,~ By Linde Kowahki ~le-family dweliin8 use. Location of Property: Nunh Side of New S m'felk Avenue. MaUlmck. NY; County Tax. Map District 1000. Secti~ 114. Block 11, Lot 20. Zone Distti~ R- 40. "='~0 p.m. Appl. No. 31829 FRED RENGANESCI AND BAR- RYCK KOKE. Variance to the Zon- BARA REITER as Applicants for a '. lng Onlinance. A~cle III-A, ~ ~ :. Reversal of a Detemrination by 100-32A, for approval of swi~ i"~ Building Inspector to Grant Building Scheduin, for permission to reduc~ PUol wlth fence encinsu~ in the side = ~:: . Permit N~ 17508-Z dated October 6. side yards to less than tbe requitad 20 Yaxd at~a. Zm~e DistHcU R-40. Loca. i~ u 1988 concentin{ & propused =steel . lion of Properly:1245 Kimberly Lane,' bui]dint for indoor ~'~rno~ ~.r and 25 feek and less than the total 45 S . ' '~.'. - -----o euthold, NY, Paradise By lhe Bay~. > to be loeaual at lxemises~em~cl to as feet for both sideyards, on this 2+ Subdivision Lo~ No. 2 Coun ~map t~mnct 1UOO, Sectin~ 70, Block owued by Wickham Road IViadne. 80. Location of Property: Ptivat~ ~: 13, I~ 20.2. ~ Right-of-Way to/crud toas private 8:10 p.m. Appl. No. 3824 -- lac. Zone Distsict: Marine (M.II). Road#II (siso ~fer~d toas Aldrich NICK AND KAT~ NICKOLAUS. Lane Extension). extruding off the V--: north side of Sound Avenue U..; .nance to me z~ns ~rdinance, · 1000, sevin,, 112, ninck I.Lot 1~: ,~usty 100-32) ;or penni.ion to ~:~: {.. ' '~,.~$t-Wo~ln SO--old To.. ,~..-,-- n..~.~';> in~'- ,~e,,o~; t~l~g in ,~ ~ ~'. ~=: ¢ OSS fieds ' --~, ..... ~., ~: ,. ore T.'4~ p.m. AppI No 3828 : ~-uo..,.oceu~ ofPn~cen'y:: ~/::l -,---- ,,~asuaa~ '{'~{n~[ BOARD OF APPEALS, TOWN OF SOUTHOLD In the Matter or the Petition of to the Board of Appeals of the Town of Southold TO: Mr. & Mrs. John DeReeder New Suffolk Avenue Mattituck, NY 11952 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 request a (Variance) (Special Exception) (Special Permit) (OCher) [¢±r¢le choice] ). 2. That the property which is the subject of the Petition is located adjacent to your property and is des- cribed as follows: No# New Suffolk Avenue~ Mattituck~ New York 11952 Suffolk County Tax Map 1000-114-11-20 3. Thattheproperty whichisthesubjectofsuchPetitionislocatedinthefollowingzoningdistrict: A-Residential 4. ThatbysuchPetition, theundersignedwillrequestthefollowingrelief: a special exception to operate a Bed & Breakfast 5. That the provisions of the Southold Town Zoning Code applicable to the relief sought by the under- signed are Article I I I Sect/on ] 0 0 - 3 0 ( ~ / ( 1 6 / .[ ] Section 280-^, New York Town Law for approval of access over right(s)-of-way. 6. That within five days from the date hereof, a written Petition requesting the relief specified above will be filed in the Southold Town Clerk's Office at Main Road Southold, New York and you ma), then and there examine the same during regular office hours. (516) 7~5-1809. 7. That before the relief sought may be granted, a public hearing must be held on the matter by the Board of Appeals; that a notice of such hearing must be published at least five days prior to the date of such hearing in the Suffolk Times and in the Long Island Traveler-Mattituck Watchman, newspapers published in the Town of Southold and designated for the publication of such notices; that you or your representative have the right to appear and be heard at such hearing. Dated: September 21, 1988. Charles Zahra & Raymond Nine Petitioner Owners'Names:Same as above PostOfficeAddress P.O. Box 1137 Mattituck~ New York 11952 Tel. No. { 516)298-4091 [Copy of sketch purposes.] or plan showing .p.r. op~sa~) tO :.be ,~t~ached for convenience NAME PROOF OF MAILING OF NOTICF ATTACH CERTIFIED MAIL RECEIPTS ADDRESS Mr. & Mrs. 3ohn DeReeder New Suffolk Avenue Mattituck, New York 11952 P 709 928 938 RF~PT FO~ CF~T~F~£O ~A~L NO INSURANCE COVERAGE PROVIDED NOT FOR INTERNATIONAL MAIL (See Reverse) Sent to ~r. & Mrs. John DeReeder Street and No ~ew Suffolk Avenue P O State and ZIP Code Postage Cedihed Fee Special Delivery Fee Reslr~oted Oehverv Fee to whom and Date Delivered Return Receipt showing to whom Date and Address of Delivery TOTAL Postage STATE OF NEW YORK ) COUNTY OF SUFFOLK ) ~harlns Zahra . residing at 1830 Pike Street Matt i tuck, New York 11952 , being duly sworn, deposes and says that on the _a~,_~,_~day of °-7 .... ,.__ ,1 9 8 8i deponent mailed a true copy of the Notice set forth on the re- ver~s~d'e~h~e'~e~o~,~directed to each of the above-named persons at the addresses set opposite their respective names; that the addresses set opposite the names of said persons are the addresses of said persons as shown on the current assessment roll of the Town of Southold; that said Notices were mailed at the United States Post Of- fice at Love Lane, Matt ituck, NY ; that said Notices were mailed to each of said persons by (certified)(re~sceze,t)mail. Return Receipt Requested S~ore me ~ /~rd Notary Public DANIEL C. ROSS Charles Z~ra (This side does not have to be completed on form transmitted to adjoining property owners.) BOARD OF APPEALS, TOWN OF SOUTHOLD In the Matter o~' the Petition of : Char]es Zahra and Raymond Nine : to the Board of Appeals of the Town of Southold : TO: to request a (Variance) (Special Exception) (Special Permit) (Other) NOTICE TO ADJACENT PROPERTY OWNER Mr. Ernest Wilsberg Mr. Harold Wilsberg Kraus Road, P.O. Box 1429 Mattituck, New York 11952 YOU ARE HEREBY GIVEN NOTICE: 1. Thatitistheintentionoftheundersignedtopetitionthe Board of AppealsoftheTownofSouthold [circle choice] 2. That the property which is the subject of the Petition is located adiacent to your property and is des- cribed as follows: No# New Suffolk Avenue, Mattituck~ New York Sllf{nlW Cn,,nty Troy Msp lOO0-11/,-ll-20 3. That the property which is the subject of such Petition is located in the following zoning district: A- Residential 4. That by such Petition, the undersigned will request the following relief: a spec iai exception to operate ~ ~ed & Breakfast 5. That the provisions of the Southold Town Zoning Code applicable to the relief sought by the under- signed are Article III Section 100-30(B) (16) [ ] Section 280-^, New York Town Law for approval of access over right(s)-of-way. 6. That within five days from the date hereof, a written Petition requesting the relief specified above will be filed in the Southold Town Clerk's Office at Main Road, Southold, New York and you may then and there examine the same during regular office hours. (516) 765-1809. 7. That before the relief sought may be granted, a public hearing must be held on the matter by the Board of Appeals; that a notice of such hearing must be published at least five days prior to the date of such hearing in the Suffolk Times and in the Long Island Traveler-Mattituck Watchman, newspapers published in the Town of Southold and designated for the publication of such notices; that you or your representative have the right to appear and be heard at such hearing. Dated: September 21~ 1988 Charles Zahra & Raymond Nine Petitioner Owners'Names: same as above Post Office Address Tel. No. ( 516) 298-4091 showing prqpo$~il,LtOi[l~i,:a~tached [Copy of sketch or plan for convenience purposes.] NAME Mr. Ernest Wilsberg Mr. Harold Wilsberg PROOF OF MAILING OF NOTICF ATTACH CERTIFIED MAIL RECEIPTS ADDRESS Kraus Road-P.O. Box 1429 Mattituck, New York 11952 p 709 928 939 R£C£~PT FOR C£~TU=~D MANL NO INSURANCE COVERAGE PROVIDED NOT FOR INTERNATIONAL MAIL (See Reverse) sent :o Mr. Ernest Wilsberg Street and No Kraus Road, P.O. Rox 1429 Mattltuck, NY 11952 Relum Sece~pl showing Io whom. STATE OF NEW YORK ) COUNTY OF SUFFOLK) SS. l Charles gahra , residing at 1830 Pike Street, Mattituck, New York 11952 , being duly sworn, deposes and says that on the ~9~_day of ~ ~,p*,~,,,h er , ] 9 8 8 , deponent mailed a true copy of the Notice set forth on the re- verse side hereof, directed to each of the above-named persons at the addresses set opposite their respective names; that the addresses set opposite the names of said persons are the addresses of said persons as shown on the current assessment roll of the Town of Southold; that said Notices were mailed at the United Stat~ Post rice at T,nv~ T,an~ N~tt~ tuak~ NRw yorgthat said Notices were mailed to each of said persons by (certified) ~ mail. Return Receipt Requested. Swo~efore me this 23~ ~t~ ~J9 ~ Notary Public DANIEL C, (This side does not have to be completed on form transmitted to adjoining property owners.) BDRH. OL()SFTS B DP, H. 15' r0, B D RM. BDR . DN LV. OFC PN- Y KT f B SHIT. ENl. FOYER PC