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HomeMy WebLinkAbout3572 Southold Town Board of Appeals ~AIN I~OAD- STAT£ FtOAD ~5 SOUTHOLD, I-.I.. N.Y. 11971 TELEPHONE (516) 765-1809 ACTION OF THE ZONING BOARD OF APPEALS Appeal No. 3572-$E Application Dated October 29, ]986 TO: Barbara k. C0u9h]an, Esq. (Attorney ]30 0strander Avenue, Box 757 Riverhead, NY ]]90] for M. & J. Mattes)[Appellant(s)] At a Meeting of the Zoning Board of Appeals held on February 5, ]98?, the above appeal was considered, and the action indicated below was taken on your [ ] Request for Variance Due to Lack of Access to Property New York Town Law, Section 280-a [×] Request for Special Exception under the Zoning Ordinance Article III , Section ]00-30(B)[]6] [ ] Request for Variance to the Zoning Ordinance Article , Section [ ] Request for Application of MICHAEL AND JOYCE MATTES for a Special Exception to the Zoning Ordinance, Article III, Section 100-30(B)[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: 50 Luthers Road, Mattituck, NY; County Tax Map District 1000, Section 113, Block 03, Lot 7. WHEREAS, public hearings were held on November 20, 1986, December ll, 1986 and January 8, 1987 in the Matter of the Application of MICHAEL AND JOYCE MATTES under Application No. 3572; 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 under the Provisions of ArtiCle III, Section 100-30(B)[16] of the Zoning Code for a "Bed and Breakfast" establishment, with owner- occupancy, for rental of three bedrooms to not more than ~ix casual, transient roomers in an existing residence. 2. The premises in question is a 1.676± parcel located along the east side of Breakwater or Luthers Road, Mattituck, more parti- cularly identified on the Suffolk County Tax Maps as District 1000, Section 113, Block 3, Lot 7.2, and referred to as Lot No. l, Minor Subdivision Map #149 of Arlene Marvin. 3. The subject premises is located'in]the "AZ80'~ Residential and Agricultural Zoning District and is improved with a two-story, two-family dwelling and accessory metal storage shed. 4. For the record, it is noted that a Certificate of Occu- pancy No. Z-9306 dated November 17, 1978 was issued to ~r. and CONTINUED ON PAGE TWO) ........ CHAIRMAN, SOUTHOLD TOW/q ZONING BOARD OF APPEALS Form ZB4 (rev. 12/81) Page 2 Appl. No. 3572-SE Matter of MICHAEL AND JOYCE MATTES Decision Rendered February 5, 1987 Mrs. Edgar Marvin for a "Nonconforming Two-Family Dwelling" preexisting of the enactment of zoning (April 23, 1957). 5. The proposed parking area is shown at the most north- easterly section of the premises, with access from Luthers Road. 6. Extending along the northerly property line of the applicants' property is an existing right-of-way as shown by Subdivision Map #149 of Arlene Marvin to Lots 2, 3 and 3. It is the position of this board that access to the "Bed and Breakfast" establishment must be directly over the lands of the applicant, from Luthers Road, and the parking area must be suitably screened from adjoining lands. 7. It is the understanding of this board that the applicants propose to discontinue the use of the existing dwelling as a two-family use, and to establish the "Bed and Breakfast" use accessory to a single-family dwelling use. The single-family use of the dwelling structure will be occupied by the owners thereof. 8. Article III, Section lO0-30(B), subsection [16] make~ exception for site-plan approval and reviews by the Planning Board for this use. In considering this application, the board also finds and determines: (1) the proposed use will not prevent the orderly and reasonable use of adjacent properties or of properties in adjacent use districts; (2) the use will not adversely affect the safety, welfare, comfort, convenience or order of the town; (3) the use is in harmony with and will promote the general purposes and intent of zoning. The board has also considered subsections (a) through (1) of Article XII, Section 100-121(C)[2] of the Zoning Code. Accordingly, on motion by Mr. Douglass, seconded by Mr. Grigonis, it was RESOLVED, to GRANT a Special Exception for a Bed and Break- fast in accordance with the requirements of Article III, Section 100-30(B)[16] of the Zoning Code as applied in the Matter of the Application of MICHAEL AND JOYCE MATTES under No. 3572, SUBJECT TO THE FOLLOWING CONDITIONS: 1. The grant of this special exception is limited to this property (and shall not be deemed to include any other property over which the applicants may have rights). 2. This Bed and Breakfast use shall be accessory to the single-family use of the premises, with owner occupancy, and shall be permitted only while the dwelling is the permanent residence of the property owner (not to be operated while the dwelling is rented or vacated). 3. Ingress and egress by Bed and Breakfast roomers shall be from Breakwater (Luthers) Road, and a driveway area for such access shall be provided from Breakwater Road over lands of the applicants herein to the on-site parking area a distance at least 15 feet away from the northerly property line or right-of-way, whichever is closer. 4. Minimum of five on-site parking spaces at the east side area of the dwelling screened along the north and east sides thereof Page 3 Appl. No. 3572-SE Matter of MICHAEL AND JOYCE MATTES Decision Rendered February 5, 1987 with shrubbery a minimum height of three feet and maximum height of 6½ feet, continuously maintained at all times. 5. Compliance with the N.Y.S. Construction and other applicable codes. 6. This Bed and Breakfast Use shall be deemed accessory to the main single-family dwelling use and not a principal use at any time. 7. This approval is subject to the requirements of Subsection 16 of Article III, Section lO0-30(B) of the Zoning Code, for the renting of not more than three bedrooms for up to six, casual transient roomers. 8. The premises shall be limited to one single-family dwelling use with accessory "Bed and Breakfast Use." 9. Covenants and restrictions containing the above restrictions shall be recorded in proper form in the Office of the Suffolk County Clerk, and a copy thereof shall be furnished to the Board of Appeals. Vote of the Board: Ayes: Messrs. Goehringer, Grigonis, Doyen, Douglass and Sawicki. This resolution was duly adopted by unanimous vote. lk February 20, 1987 Town Cl~rk, Town 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 public hearings will be held by the SOUTHOLD TOWN BOARD OF APPEALS at the Southold Town Hall, Main Road, Southold, NY at.a Regular Meeting commencing at--7:30 p.m. on THURSDAY, 'NOVEMBER 20, 1986 and as~follows: 7:35 p.m. Appeal No. 3573 ~ MARGARET AND'JOSEPH BEST. Variance to the Zoning Ordinance~ ~rti~cle III, Section 100~32 for permission to locate accessory garage structure in the frontyard area at premises located on the south side of a private right-of-way extending off the east side of Camp Mineola Road, Mattituck~ ~NY; County Tax--Map Parcel No. 10Q0~123-06-17,- 7:40 p.m. Appeal No. 3571 - MARGARET AND JOSEPH BEST. Variance to the Zoning Ordinance, Article XI, Section 1001t19.2 for permission to construct addition at--the southerly side of existing dwelling with insufficient setback from the-bulkhead along tidal water area and insufficient setback from the rear property line at premises located on the south side of a private right-of-way extending off the east side of Camp Mineola Road, Mattituck, NY; County 7:45 p.m. Appeal Tax Map Parcel No. 1000-123-06-17. No.' 3568 ~'STAMATIOS AND ALENI 'RAPANAKIS. Special Exception to the Zoning Ordinance, to establish 6ne accessory apartment,in the;existing dwelling structure in accordance width the requirements of Article III, Section lO0-30(B) subsection [15]. Location of Property: 2030 Boisseau Avenue, Southold, NY; County Tax Map District 1000, Section 55, Block 6, Lot 40. 7:50 p.m. Appeal No..3569 ~ BOATMEN'S HARBOR MARINA. Variance to the Zoning Ordin~nce~ Article XI, Section 100-119.2 for permission to construct addition to existing dwelling with an insufficient setback from existing bulkhead. Location of Property: 3350 West Creek Avenue, Cutchogue, NY; County Tax Map District 1000; Section 110, Block 01, Lot 12. / 7:55 p.m. Appeal No. 3572 - MICHAEL W~ND JOYCE ~ATTES~ Special Exception to the Zoning Ordinance, Article III, Section 100~30~ (B)[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: 50 Luthers Road, Matt~tuck, NY; County Tax Map XX~strict lO00, Section 113, Block 03, lot 7 8:00 pom. Appeal No. 3565 FRANK FIELD REALTY INC, Variance to the Zoning Ordinance Article III Section 100-3 Page 2 - Notice of Hearings Southold Town Board of Appeals Regular Meeting - November 2Q, 1 986 for permission to establish two-family dwelling use on a parcel of land containing tess than 160,O00~sq. ft~ in area, 270 ft. lot width, 400 ft. lot depth, and with insufficient frontyard, sideyard, and rearyard setbacks. Location of Property: 320 Linnett Street, Greenport, NY; MaD of Greenport Driving Park #369, Lots #71 and #72; County Tax Map District 1000, Section 48, Block 2~ Lot 36.1'. 8:06 p~m.. Appeal No. 3566-SE. FRANK FIELD REALTY INC. Special Exception to the Zo-nin'g Ordinance, Article'-I~I,'Section lO0-30(B) for permission to establish two-family use at premises referred to as 320 Linnett Street, Greenport~ NY; Map of Greenport Driving Park #369, Lots #71 and"~#72; County Tax Map District 1000, Section 48, Block 2~ Lot 36.1. 8:10 p.m. Appeal No. 3570-SE - ]PAUL HENRY. Special Exception to the Zoning Ordinance, Article III,-rSection 100-30(B)~6] 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 six casual, transient roomers, and renting of not more than three rooms. Location of Property: 50 Luthers Road, Mattituck, NY; County Tax Map District 1000, Section 113, Block 03, Lot 7. ' 8:15 p.m. Appeal No. 3576 - BARBARA D. SCHRIEVER. Application to withdraw 1Lariance conditionally approved under Appeal No: 3393 on September 26, 1985, and to reinstate in full the 1969 Variance conditionally approved under Appeal No. 1260, permitting the use of a 5,600 sq. ft. existing building for storage and repair of contractor's machinery and equipment. Location of Property: West Side of Tabor Road, Orient~ NY; County Tax Map District 1000, Section 18, Block 05, Lot 12~ "B-light~' Business Zoning District. 8:20 p.m. Appeal No. 3552 - JOHN SENKO. Reconvene hea~ing concerning Variance for shopping center use in this B-I General Business Zoning District containing 30,084 sq. ft. in lot area. Location of Property: Intersection of Ackerly Pond Lane and North Side of Main Road, Southold; County Tax Map Di'strict 1000, Section 70, Block 7, Lot 1. 8:40 p.m. A~peal No. 3574 : DR. JOHN LORETO. Variance to the Zoning-Ordinance, Article III, Sections 10~-30 and 100-32, and Article XI, Section 100~119.2, for permissi-~n to construct Page 3 .- Notice of Hearings SouthOld Town Board'of Appeals Regular Meeting Novembe? 20, 1986 storage building with an insufficient setback from bluff along Long Island Sound for storage'purposes accessory and incidental to the existing dwelling adjacent--to these premises. Location of Properties: Lots #3 and #2, Map of Vista Bluff #5060; North Side of Glen Court, Cutchogue, NY; County Tax Map District 1000, Section 83, Block 1, lots_9 and 8. 8:55 p.mo Appeal No. 3562 - ANA G. STILLD. Variances: (1) to the-ZoningPOrd~nance, Article t~I, ~ection 100-31, for approval of insufficient lot area, width and depth-of thre~ parcels in-this pending Minor Subdivision, and (2) to New York Town Law, Section 280-~ for approval of access over private~- right-of-way extending from the north side of Main Road to the premises tn question, k'ocation of Property: At the north end of private r~ght-of-way ( ~onglands-of-B. Brokaw), North Side of Main Road,-Orient, NY; County Tax Map Distric~ lOOD,_Section 14, Block 2, Lot 26, containing 3.2 acres total. 9:05 p.m. Appeal No. 3519 STEVEN SANDERS & ANO. Variance to the Zoning Ordinance, Article III, Section 100-3I for approval of ~nsufficient lot area, width and setbacks in this pending set-off division of land. Location of Property: Private Right-6f-way located off the north side-of-Bay View Avenue, Mattituck, NY; County Tax Map District 1000, Section 106, Block 06, Lot 36. The Boar~d of Appeals will near at said time and place all persons or representatives desiring to be heard in each of the above hearings. Written comments may also be submitted prior to the conclusion of the subject hearing. For more information~ please call 765-1809. Dated: November 3~ 1986. BY ORDER OF THE SOUTHOLD TOWN B~ARD OF APPEALS GERARD P. GOEHRINGER, CHAIRMAN Linda Kowa!.ski, Board Secretary ATTENTION NEWSPAPERS: Please publish THURSDAY, NOVEMBER-13, 1986 and forward 13 Affidavits of publication on or before Novembe~ 17, to: Board of Appeals, Main Road, Southold, NY 11971. NOTICE OF HEARINGS ~OTICE IS HEREBY GIVEN, Law and the Code of the Town hearings will be held by the the Southold Town Hall, Main Meeting on 7:35 the Zoning permission pursuant to Section 267 of the Town of Southotd, the following public SOUTHOLD TOWN BOARD OF APPEALS at Road, Southold, NY at a Regular Thursday, Dec~mbe~ll~'1986..~at the following times: p.m. Appeal No. 3216 - EUGENE DAVISON. Variance to Ordinance, Article III, Section lO0~30(A)[1] for to establish second'dwelling unit upon 9.8± acre parcel over existi~ng horse stable. Location of. ProperTy: South Side of Sound Avenue, Mattituck, NY; Lot #4, Minow Subdivision of Strawberry Fields, which received Sketch Plan approval July 8, 1985 by.tSe Town Planning Board~ County Tax Map Parcel No. 1000-121-3-5 (containing t2.6~ acres). 7:40 p.m. Appeal No. 3577 - FRANK AND DELORES DAVIES. Variance to the Zoning Ordinance, Article III, Section 100-32 for permission to replace accessory shed in thd north sideyard area at 2225 Pine Tree Road, Cutchogue, ~Y; Lot #15~ Map of Nassau Farms filed March 28, 1935; County Tax Map Parcel No. 1000-104-3-2. 7:45 p.m. Appeal No. 3578 ARTHUR ESSLINGER. Variance to the Zoning Ordinance, Article XI, Section 100-119.2 for permission to locate accessory storage shed within 75 feet of existing bulkhead and wetlands area at 1515 Arshamomaque Avenue, Southold, NY; Lot #21, Map of Beixedon Estates; County Tax Map Parcel .No. 1000-66-3-11. ' 7:50. p.m. Appeal NO'. 3579 - CHARLES AND SANDRA BLAKE. ance for Approval of Access pursuant to New York Town Section 280-a frbm the east side of South Harbor lane known County Vari Law, along Old Woods Path (Private Road #10), to.premises and referred to as 695 Old Woods Path, Southold, NY; Tax Map Parcel No. 1000-87-1-23.7. 7:55 p.m. Appeal No. 3580 - NICHOLAS BABALIS. Variance to the Zoning Ordinance, Article III, Section 100~3t for permission to construct new dwelling with insufficient northerly side yard and insufficient total sideyards at 3360.Rocky Point Road, East Marion, NY; County Tax Map Parcel No. 1000-2.1-04-09. p8:00 p.m. Appeal No. 3572 ~ 'MICHAEL AND JOYCE MATTES.~ ecl al Exception-Bed and Breakfast ~e~-~rom.~-lt/-~-~-~.l\ Page 2 - Notice of Hearings Southold Town Board of Appeals Regular Meeting December ll, 1 986 8:10 p.m. Appeal No. 3557 - ROBERT G. EGAN. Variance to amend Conditional Approval Rendered 11/3/86 under Appeal No. 3557 to allow reconstruction of dwelling with insufficient setbacks upon foundation as exists at 5 and i2 feet, rather than 7 and !2 feets at 330 Knoll Circle, East Marion, N¥~ '~Map of Section Twos Gardiners Bay Estates," Subdivision Lots 27 and part of 28~ County Tax Map District 1000, Section 37, Block 5~ Lot 12. 8:15 p.m. Appeal No. 3552 - JOHN SENKOo Variance shopping center use in this B-l General Business Zone with 302084 sq. ft~ 6f lot area (recessed from 11/20/86). for The Board of Appeals will hear at said time and place all persons or representatives desiring to be heard in each of the above hearings. Written comments may also be submitted prior to the conclusion of the ~ubject hearing. For more information~ please call 765-1809. Dated: November 20, 1986. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P, GOEHRINGER: CHAIRMAN Linda Kowatski, Board Secretary Copies to the followi~n§ on or about 12/t/86: Mr. Eugene Dav]son, Box 248-A, RD #1, Sound Ave, Mattituck, ~Y 11952 Mr. and Mrs. Frank Davies, 113 Lone Oak Path, Cutchogue, NY 11935 Mr. Artqur Esslinger, Box 172~ Southold~ NY 11971 Mr. and Mrs. Charles Blake, 695 Old Woods Paths Southold, NY 11971 Mrs. P.C. Moore, Rudolph H. Bruer, Esq.~ Main Road, Southold, NY 11971 as Agent/Attorney for Nicholas Babalis Mr. and Mrs. Michael Mattes, 50 Luthers Road, Box 83t~ Mattituck~ NY 11952 Mr. and Mrs. Donald Shaw, Breakwater Road, Mattituck, NY 11952 Mr. Garrett A. Strang, Architect, for R.G. Egan, Box 1412, Southo!d 11971 Stephen R. Angel, Esq. (for Senko), Box 279~ Riverhea~ NY 11901 Daniel C. Ross, Esq., Box 1424~ Mattituck, NY 11952 Suffolk Times (personal delivery 12/2/86) [.I. Traveler (personal delivery 12/2/86) Town CleFk Bulletin Board Z.B.A.'Office Bulletin Board Building Department Board Members Individual ZBA Files 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 public hearings will be held by the Southold Town Board of Appeals at the Southold Town Hall, Main Road, Southold, NY at a Regular Meeting on THURSDAY, JANUARY 8, 1987 at the following times: 7:35 p.m. Appeal No. 3587 - ROBERT AND EILEEN M. JOHNSON. Variance to the Zoning Ordinance, Article XI, Section 100-119.2 for permission to construct addition to existing dwelling with an insufficient setback from tidal water area at premises known as 430 Corey Creek Road, Southold, NY; District lO00, Section 87, Block 5, Lot 3. 7:40 p.m. Appeal No. 3594 - ANNE C. MASON. Variance to the Zoning Ordinance, Article XI, Section 100-119.2 for permission to construct deck addition to existing dwelling with an insuffi- cient setback from tidal wetland area at premises known as 1250 Lupron Point, Mattituck, NY; District 1000, Section 115, Block 11, Lot 12. 7:45 p.m. Appeal No. 3585SE ALVIN AND PATRtCIA COMBS. Special Exception to the Zoning Ordinance, Article III, Section lO0-30(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." Location of Property: 2500 ?econic Lane, Peconic, NY; County Tax Map Parcel No. 1000-74-03-24.2. 7:50 p.m. Appeal No. 3588SE - MARY J. MOONEY-GETOFF. Special Exception to the Zoning Ordinance, Article III, Section lO0-30(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." Location of Property: 1475 Waterview Drive, Southold, NY; County Tax Map Parcel No. 1000-78-007-20. .7:55 p.m. Appeal No. 3591 - PAUL STOUTENBURGH, JR. Variance to the Zoning Ordinance, Article III, Section 100-32 for permission to locate accessory windmill tower in excess of maximum-permitted 18 feet height requirement, at 4015 Skunk Lane, Cutchogue, NY; County Tax Map Parcel No. 1000-98-1-6. Page 2 - Notice of Hearings Regular Meeting of January 8, 1987 Southold Town Board of Appeals 8:00 p.m. Appeal No. 3583 ~ FREDERICK AND HELEN HRIBOK. Variances to the Zoning Ordinance, Articles: (1) III, Section 100-31 for insufficient southerly side yard and total side yards, and (2) XI, 'Section 100-119.2 for insufficient setback from existing bulkhead along Arshamomaque Pond, for this proposal to construct garage addition to existing dwelling, at 90 Carole Road, Southold~ NY~ County Tax Map Parcel No. 1000-52-2-4. 8:05 p~m. Appeal No, 3461 ~ HELMUT HASS. Variances to the Zoning Ordinance, Article VII, Sections: (1) 100-71, Bulk Schedule, for insufficient'lot area and lot width; (2) lO0-70(A) establishing existing residential use as principal use of proposed southerly parcel; (3) lO0-70(A) and 100-71 for approval of insufficient livable-floor area in the existing dwelling use of proposed northerly parcel. Zoning District: "B-I" General Business. Location of Property: 35350 County Road' 48, Peconic, NY; County Tax Map Parcel No. 1000-69-04-2.1. 8:10 p.m. Appeal No. 3552 - JOHN SENKO. (Hearing recessed from December ll, 1986). Variance for shopping- center use in this "B-I" General Business Zone with 30,084 sq. ft. lot area. //~) 8:30 p.m. Appeal No. 3572SE - ~ICHA~E~ AND JOYCE MATTES. /~ (Hearing~ recessed from December ll, 1986). Special Except~Qn - (,_~or Bed and Breakfast in existing building. 8:45 p.m. Appeal No. 3584SE - DONALD AND JOANNE RITTER. Special Exception to the Zoning Ordinance, Article III, Section lO0-30(B) (100-31) for permission to convert existing one-family dwelling to a two-family dwelling. Location of Property: 2585 Peconic Lane, Peconic, NY; County Tax Map Parcel NCo 1000-74-03-20. The Board of Appeals will hear at said time and place all persons or representatives desiring to be heard in each of the above hearings. Written comments may also be submitted prior to the conclusion of the subject hearing. For more information, please call 765-1809. Dated: December ll, 1986. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER, CHAIRMAN Linda Kowalski, Board Secretary TOWN OF $OUTHOLD BUILDING DEPARTMENT TOWN CLERK'S OFFICE SOUT~iOLD, N.Y. NOTICE OF DISAPPROVAL F~ge No ................................ PLEASE TAKE NOTICE that your application dated .. m.%~.~.. ~ ~ ..... ,19. ~. ~ for pe=it to~..~. ~..~. ~..~.~r ........ ~. ............. at ~o~ ~ ~o~ ~ . . ~ ........ ~ ........ ~. ~ .......... ~ouse NO. Street Ham/ot County Tax Map No. ~000 Sectioa . .-... [/.~ .... Block ..... ~..~ .... Lot ,..~..' ........ Subdivision .................. Filed Map No ................. Lot No .................. -';'--, ........... ~ ........ -¢0 ..... ~ ..... :'a"~'"'~'~-~'~-'~'-:---.~ ...... Bu~ ~spec~or RV l/CO FORM NO. 1 TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN HALL £OUTHOLD, N.Y, 11971 TEL.: 765-1803 <ami[ned ................. 19... ~proved ................. 19... Permit No ............ sapproved a/c ..................................... Received ........... ,19... (Building Inspector) APPLICATION FOR BUILDING PERMIT Date INSTRUCTIONS a. This application must be completely filled in by typewriter or in ink and submitted to the Building Inspector, with 3 s of pla~ts, accurate plot plan to scale. Fee according to schedule. b. Plot plan showing location of lot and of buildings on premises, relationship to adjoining premises or public streets areas, and gi'~ng a detailed description of layout of property must be drawn on the diagram which is par~ of this appl~- don. c. The work covered by this application may not be commenced before issuance of Building Permit. d. Upon approval of this application, the Building Inspector will issued a Building Permit to the appl/cant. Such permit 3il be kept on the premmes available for inspection throughout the work e. No building shall be occupied or used in whole or in part for any purpose whatever until a Certificate of Occupancy fll have been granted by the Building Inspector. APPLICATION IS HEREBY MADE to the Building DePartment for the issuance of a Building Permit pursuant to the ilding Zon~ Ordinance of the Town of Southold, Suffolk County, New YorK, and other applicable Laws, Ordinances or gutstions, for the construction of buildings, additions or alterations, or for removal or demolition, as herein described. e applicant agrees to comply w~th all applicable laws, ordinances, building code, hous'm_~g, code, and regulations, and to mit auth°rized inspect°rs °n premises and in building f°r necessary ins .Pef.,cns__~i5~ ~.~ · (mai±trig ~ddress or app±icanr) are whether applicant is owner, lessee, agent, architect, en~neer, general contractor, electrician, plumber or builder. line of owner of premises ......................................................................... (as on the tax roll or latest deed} applicant is a corporation, signature of duly authorized officer. (Name and title of corporate officer) Builder's License No .......................... Plumber's License No ......................... Electrician's License No ....................... O,.her Trade s License No ...................... Locationoflandonwhichproposedworkwfllbedone .... ~.~.~.f.~~. .~.~ ............ I!ouse Number Street Hamlet County Tax Map No. 1000 Section . .//~. ............ Block . .~.~. ............ Lot....~. ............ Subdivision ..................................... Filed Map No ............... Lot ............... (Name) State existing use and occupancy of premises and intended use and occupancy of proposed construction: .................................. b. in'ended use and occupancy 7 / ' ' // 3. Nature of work (check which applicable): New Building .......... Addition .......... Alteration ........... Repa/r .............. Removal .............. Demolition .............. Other Work ............... (Description) 4. Estimated Cost ...................................... Fee ...................................... (to be paid on filing this application) 5. If dwelling, number of dw~lling units ............... Number of dwelling un/ts on each floor ................ If garage, number of cars ........................................................................ 6. If business, commercial or mixed occupancy, specify nature and extent of each type of use ..................... 7. Dhmensions of existing structures, ifany: Front ............... Rear .............. Depth ............... Height ............... Number of Stories ........................................................ Dimensions of same structure with alterations or additions: Front ................. Rear .................. Depth ...................... Height ...................... Number of Stories ...................... 8. Dimensions of entire new construction: Front ............... Rear ............... Depth ............... Height ............... Number of Stories ........................................................ 9. Size of lot: Front ...................... Rear ...................... Depth ...................... 10. Date of Purchase ............................. Name of Former Owner ............................. ! 1. Zone or use district in which premises are situated ..................................................... I2. Does proposed construction violate any zoning law, ordinance or regmlation: ................................ ! 3. Will lot be regraded ............................ Will excess fill be removed from premises: Yes No t4. Name of Owner of premises .................... Address ................... Phone No ................ N~me of Architect ........................... Address ................... Phone No ................ Name of Contractor .......................... Address ................... Phone No ................ 15. Is this property located within 1100 feet of a tidal wetland? ~ Yes ..... No * If yes, Southold Tow~ Trustees Permit may be required. PLOT DIAGRA}d Locate clearly and distinctly all buildkn~, whether existing or proposed, an& indicate all set-back dLmensions from property linesi Give street and block number or description according to deed, and show street names and indicate whether interior or corner lot. S _ A ~ E OF N-¥v YORK, S.S COUNTY OF ................. (Name of individual signing conh-act) above named. being duly sworn, deposes and says that he is the applicant He is the ......................................................................................... (Contractor, agent, corporate officer, etc.) of said owner or owners, and is duly authorized to perform or have performed the said work and to make and file this application; that ali statements contained in this application are true to the best of his knowledge and belief; and that the work will be performed in the manner set forth in the application filed therewith. Sworn to before me this ............. .c~..o~. ....... day of ......... ~..~.~. ...... , 19 Notary Public ..... ~.-~:'.~-4,. ~:.../~A~,ffr/.L?.~.~.~.. , . . County ~ ~. ~,8.~ - (Signature of applicant) ?oWN OF SOUTHOLD, NEW YORK APPLICATION FOR SPECIAL EXCEPTION Application No. ~7~ Date Filed: TO THE ZONING BOARD OF APPEALS, SOUTHOLD, NEW YORK: I (We), /~H REL R-MD ,_-Fm~CE tS1RT7~5 of ,70 6UTH~.% (Residence, House No. and Street) ~ '(Hamlet, State, Zi'o Code, Teleph6ne Number) hereby apply to THE ZONING BOARD OF APPEALS for a SPECIAL EXCEPTION in accordance with the ZONING ORDINANCE, ARTICLE ~ , SECTIO~ ~00 , SUBSECTION ~ for the below-described property for the following uses and purposes (and as shown on the attached olan drawn to scale): A. Statement of Ownership and Interest. I~IQH~F~i. ~71RTTES ~Dr) ~Tb'~C~ ..F}I~TT~ _is(are) the owner(s) of propehty known and referred to as ~-b L(gT~FK~q ~/)~]~ ~TT~TU(_~-~ (House No., 'Street, Hamlet) identified on the Suffolk County Tax Maps as District 1000, Section ))~ Lot(s) ~ , which is not (is) on a subdivision Map (Filed , "Map of ~' Filed Map No. and has been approved Dy the Southold Town Planning Board on as a [Minor] [Major] Subdivision). The above-described proper~y was acquired by the owner on ~bu~.r~l.~ 1~7~ B. The applicant alleges that the approval of this exception would be in harmony with one 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 [v~ is.cQnsi~%ent with the ~se(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): [ ] is vacant land. COUNTY OF SUFFOLK) STATE OF NEW YORKi ss.: Sworn to before me this ~day of (Notary Public) ~//~ ~-jZ_~ ~ ZB2 (rev. 2/6/86) -Cs ) ~¥ P[i~LiC, State of No. 52-452Z32~ ,%fro ~ and TOt~ OF ~O~II'~OLD P~©P~i~TY OWNER STREET' VILLAGE FORMER OWNER N ACR. L TYPE OF BUILDING LAN D IMP. TO-FAL DATE REMARKS C/, :. ~:, :3/ AGE BUILDING CONDITION NEW NORMAL BELOW ABOVE FA[LM, Tillable FRONTAGE ON Acre Value Per Value Ac re I IL FRONTAGE ON ROAD DEPTk! BULKHEAD DOCK COLOR ~d >~ ~ ~ C TRIM M. Bldg. Exten,sion Extension Extension Porch Porch Breezeway Garage Patio Tot a I Foundation Basement Ext. Walls Fire Place Type Roof Recreation Room Both Floors Interior Finish Heat Rooms 1st Floor Rooms 2nd Floor Drivewey OWNER STREET VILLAGE TYPE OF BUILDING SUB. LOT .~ z4/' TOTAL FARM DATE COMM. CB, MICS. Mkt. Value REA/LARKS BULKHEAD Meodowlond Dlouse Plot Total Tillable FRONTAGE ON WATER Woodland FRONTAGE ON ROAD DEPTH OWNER 4ER RES. TS Y / SEAS. LAND IMP. ' Tillable Woodland ~ Meadowland House Plot Total VL. ~7 0~: $OUTHOLD .]_ STREET FARM PJ~OP~J~TY WLLAGE SUB.LO'r W TYPE OF BUILDING COMM. CB. MICS. Mkt. Value TOTAL DATE REMARKS FRONTAGE ON WATER FRONTAGE ON ROAD DEPTH BULKHEAD ExtenSion Extension Extension COLOR \ TRIM Porch Foundation Basement Both Fbors Porch Ext. Walls Interior Finish' Breezeway Fire Place -~ ~ Heat Garage l'ype Roof Rooms 1st Floor Patio Recreation Roo~ Rooms 2nd Floor O.B. Dormer Driveway Total *z.. (_. '2 2- Dinette LR. DR. BR. FIN. B OWNER JSTREET FORMER OWNER D! OPERTY CARD VI L~GE ~ DIST. ~ SUD. LOT E ~ I ACR. ,- J W- j ~PE OF BUILDING LAND S~S, IMP. VL. TOTAL Woodland Hous~ Plot Tota~ FARM DATE CO~. CB. MICS. Mkt. Value REMARKS ,~,~ ,, FRONTAGE ON WATER 'FRONTAGE ON ROAD DEPTH BULKHEAD COLOR Pokh ~or~h Gar~ Foundation Oo~ment Ext. Wells Type Roof R~=reatJon Room Do~r Both Floors Interior Finish Heat Rooms 1st Floor Rooms 2nd Floor tK. /lm ,~,: DR. BR. .% NO I t.~ SOUTHOLD TOWN BOARD OF APPEALS MATTER OF MICHAEL AND JOYCE MATTES THURSDAY~ JANUARY 8, 1987 PUBLIC HEARING RECESSED FROM DECEMBER 11, 1986 Meeting CHAIRMAN GOEHRINGER: Do we have a spokesperson for the Mattes'? Mrs. .C0u§h]an is here. MS. BARBARA COUGHtAN: I am here on behalf of the Mattes' My name is Barbara Cou§h]an, I'm an attorney in Riverhead at 130 Ostrander Avenue. As I stated, I'm here on behalf of Joyce and Michael Mattes, the applicants. They're before your Board this evening for a special exception permit to operate a Bed and Break- fast in their home located on Luther and Mill Road in Mattituck. It was my understanding from the last meeting that this applica- tion was held over for one reason. That reason being that there was some question in respect to the deed of the Mattes'. Both the Mattes' and myself are here this evening to help you resolve that issue if we could.. CHAIRMAN GOEHRINGER: The issue has been held in abeyance pending the fact that our legal council is indisposed at the moment. He is in the h__ospital and we will discuss it with him after the hear- ing is closed. We have gathered the information that we are look- ~ing for and we think we have pretty much everything that we need. So I don't see that there's any further reason to go any further with this. That's pretty much the situation on our part. We will give the other side the right to respond and we will give you the right for rebuttal. We will limit that to the 42 minutes that I mentioned before. So we'll ask if there's anybody else that would like to speak in favor of the application. Not asking you to step aside but... Seeing no one, we will ask the other side to respond. Yes ma'am. Would you kindly state your name. MRS. HAHN: Good evening. My name is Mary Jean Hahn. and I'm the adjacent property owner to Mr. and Mrs. Mattes. One thing that I would like to bring up to the Board that I don't believe has been addressed before. With respect to the right-of-way; it was my un- derstanding that if something were to happen to one of the guests of the Mattes' on the right-of-way, that we could be sued as well. I would ask the Board to consider requiring the Mattes' to issue a certificate of insurance for the liability including us as named insured. So that we would not then be sued privately because of the fact that they have a Bed and Breakfast and we have a residen- tial home. And we would just request that we not be responsible for their clientele .so to say and that the Board require that they submit that with us with our names on it. CHAIRMAN GOEHRINGER: Mrs. Hahn, I just want to reflect breifly upon that and that was that I had~,asked Mr. Mattes at the last hearing if he was willing to run an egress adjacent to yours and the other 2 property owners egress, ingress and egress. There- by, precluding use of that right-of-way at this particular time, one was in conjunction with the Bed and Breakfast operation Page 2 - January 8, 1987 'Public Hearing - Joyce and Michael Mattes Southold Town Board of Appeals CHAIRMAN GOEHRINGER: (continued) if this Board so chooses to grant it. So I'm not sure that that is going to be needed assuming we deal with it in that particular way. MRS. HAHN: In other words, you are then requesting the Mattes' to redesign their driveway. Is that it? And not use the right- of-way. CHAIRMAN GOEHRINGER: That was basically the way that I... That was the question that was asked. We had not dealt with that. MRS. HAHN: Are there any plans or any diagrams? CHAIRMAN GOEHRINGER: We have not received any from them. We have not asked anything of them at this particular time. Basically, it was probably a situation where I was not thinking about the holiday season in dealing with all of the information that I might have gathered, that would have supplemented what I needed. But I don't feel that I need any additional information from either the appli- cant or the other 3 property owners at this time. If for some rea- son that situation was to change, then we might open the hearing up at that particular time. Reconvene the hearing is the proper term, phrase to use. But at this particular time, I don't see that that is of necessity. So that's all I can tell you. MRS. HAHN: I just hope that this question will be .... CHAIRMAN GOEHRINGER: That is an interesting area that you just men- tioned. MRS. HAHN: It was a concern to me because of the fact that strangers would be using our property and you never know. People are sue crazy these days and I just don't want to open ourselves up to that liabili- ty. CHAIRMAN GOEHRINGER~ I happen to live in the community around the corner and I'm aware of the fact that there is underground power lines running adjacent to the right-of-way. My question was basic- ally, which side do they run on. Do they run on the Mattes' side or do they run on your side of the right-of-way? }~. MATTES: You're talking about our power line right? CHAIRMAN GOEHRINGER: Right. MRS. MATTES: It runs in the middle of the right-of-way. MR. MATTES: It runs from the right side by the phone pole which is right on the edge of the right-of-way (diagonally) very slight- ly diagonally. So over a distance of 150 feet, it goes over 4 feet and then it cuts up to our house. CHAIRMAN GOEHRINGER: So it's more on the north side then it is... MR. MATTES: It's entirely on the south half. Page 3 - January 8, 1987 Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals CHAIRMAN GOEHRINGER: It's on the south half. Mit. MATTES: It goes from immediately on the property line to about 4 feet in and then it goes about an 80 degree turn and then goes back across our property all the way up to the house. CHAIRMAN GOEHRINGER: Ok. Just let the tape reflect that I am speaking to }ir. Shaw at the same time that I'm speaking to Mrs. Hahn. The only thing I ask from you Mr. Shaw if you wouldn't mind, is to give us some sort of dotted line indicated on the four lot subdivision of exactly where the power line is. I may have it here but give it to me as close to as you can. You don't have to give it to me tonight. You can give it to me... You know. We'll close the hearing pending the receipt of that. So that we know exactly where the power lines are and there are no problems with any excavation or whatever the case might be in those particular ameas. Because we would hate to see anybody have their lines cut or whatever the case might be. Ok. Thank you very much. Yes. Ma'am we're going to split this up. We've already used... We were only going to go for 2 or 3 more minutes here. So we'll let Mrs. Shaw speak and then we'll ,again allow Mr. Hahn or anybody else quickly. Go ahead Mrs. Shaw. MRS. SHAW: I would to the right-of-way ers share the right right-of-way to the of it? like Mary Jean in regard to the water with which all four property own- of. Are the Mattes' going to give up their water so that we are not liable for their use CHAIRMAN GOEHRINGER: That again is an interesting question and we have been toying with the situation that deals with that particu- lar question. So that what in effect I'm saying is; that it opens the entire spectrum or scope of an issue here and it was an issue that we had discussed. Not specifically based upon this particu- lar application but it was minorily discussed last night at the co-committee meeting in reference to rights-of-ways and the li- ability of other persons using them in a transient sense as opposed to just having guests visit you and using the right-of-way. And these are legal questions which we are going to attempt to address at the summation of this hearing which should be the decision. So we have a lot of homework to do within the next 60 days particular on this individual application. So we will be dealing with that and toying with that. ~. ~ttes has a question. Do you have any objection Mr. Hahn, if we go back and have Mr. Mattes go at this particular time? Sir. MR. MATTES: Good evening. I just want to clarify one thing that's all. The telephone pole of which the lines go down and then bends under the Hahn's house and the Shaw's house and not the Brandesforte's. They get it off Mill Road. That telephone pole is on my side of the right-of-way. And the issue of liability I think, I didn't question any liability issues when the Brandesforte's decided to use the right-of-way to get into their property or I wouldn't ques- tion the liability issue when~ the Hahns had guests at their house, when~ the Shaws had guests at their house or business associates over. So I think we're trying to make a mountain out of a mole hill. ~Page 4 - January 8, 1987 Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals CHAIRMAN GOEHRINGER: While you're up there Mr. Mattes, I just wanted to ask you, we have, and this was going to be one of the last things I w~ going to ask, you have given us the indication that you are willing to discontinue the two family, not that you are using the two-family, but you presently have a two-family c.o. for the premises. Is that correct? MR. MATTES: Yes. CHAIRMAN G~EHRINGER: In doing so, we may ask for a covenant filed in the Town Clerk's Office that you discontinue the enjoyment of that second family use. MR. MATTES: I don't see any problem with that. CHAIRMAN GOEHRINGER: Ok. I thank you very much. And we're going to have Mr. Hahn and hopefully we'll wrap it up if you have any sum- mation you'd like. MR. HAHN: This is the closing remarks because I can see that there are a lot of Bed and Breakfast maybe coming up on the northfork and we're now just starting off when it's a child and we certainly do want to make sure that any future Bed and Breakfast will be handled in the wise manner that is to the advantage of the people that live here all year long. I was born in Europe and was always brought up with Bed and Breakfast. It's something totally unnew to me. But I feel that certain houses based on their geographic location, are just not condusive for that type of exposure to the residents that live theme all year long. We live in a 100% residential area. There is absolutely no commercial ventures at all in our area. And to just change that for them or for the Mattes, we could have them in any residential area. That it can just suddenly pop up left and right in a haphazard manner without any regard for the residential pri- vacy that people have chosen and therefore, invested and paid proper- ty taxes on. I'm all for Bed and Breakfast but it has to be located where it doesn't change or alter the actual the inherent nature of where that Bed and Breakfast is located and that's pretty much all I have to say. CHAIRMAN GOEHRINGER: Thank you. You have a question. MR. HAHN: One more thing if I may in closing to rebuttal on Mr. Mattes as to the liability. If I have a guest coming over, my homeowners will protect me for that liability. However, if there is a commercial exposure going on, I am suddenly being exposed to not a normal day to day use of a home where there is guests or business associates. But we're talking about people coming in and out at all hours of the night perhaps, depending on if it's New Year's Eve or whatever. After all, the Hamptons, the life up there stay up until four in the morning. They could come at four in the morning to spend the night and that's a different type of exposure that is being imposed upon our small private community. That's all I wanted to say. Page 5 - January 8, 1987 · Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals MR. SHAW: One very small factual thing that I wanted to bring out. CHAIRMAN GOEHRINGER: You're over time now so keep it quick. MR. SHAW: I'll go real fast. I'm quoting from memorandum of law on behalf of applicants, Michael and Joyce Mattes in sup- port of an application. Next, the neighbors propose to limit the Mattes access to a 25 foot right-of-way. The Mattes' deed gives some access over that right-of-way and there's no reason they should relinquish that right. However, if the Board ident- ifies a problem with the right-of-way as a means of exit from the subject property, the Mattes' have agreed to install an exit on their property for use by the guests of the proposed Bed and Breakfast. That indicates that they are not willing to yield the right-of-way as long as they do not yield the right-of-way. Our homeowners policy will not cover a commercial use. We will be ex- posed and would have to pick up an additional policy to cover our liability. And I believe that in that little list of things the Board has to consider that would be actionable under Article 78, that would be something. We have to deal with the right-of-way problem. Both rights-of-ways; to the water and also the ingress and egress. CHAIRMAN GOEHRINGER: MS. MS. : What is the definition of a house according to the Town Code? legal two-family CHAIRMAN GOEHRINGER: I believe this is a pre-existing two-family house. MS. : What is the definition? What qualifies a house as a two-family house? Two kitchens? What's the fine line? CHAIRMAN GOEHRINGER: Four acres. Four acres. MS. : Four acres. CHAIRMAN GOEHRINGER: Four acres of property. MS. : You mean four acres of property. CHAIRMAN GOEHRINGER: 160 thousand square feet and a special excep- tion from this Board. MS. : For their requirement insofar as that they may be separate living quarters or two kitchens or... CHAI~4AN GOEHRINGER: We don't deal with that issue. That's Mr. gessard's issue. MS. : Second question that I would like to ask you; I understand that a letter was put into the file by the fourth proper- ty owner. Could it be possible for the Board to read this into the record? Page 6 - January 8, 1987 Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals CHAIRMAN GOEHRINGER: You're welcome to read it or Doug is wel- come to read it. But by the mere fact that it's placed in the file and we received it today, it's in. But if you'd like to read it, we'll give you the time to. MS. : I would like to read it into the record. It's directed to the Board of Zoning Appeals. It's dated January 8, 1987. Attention Gerard P. Goehringer, Chairman in regards to ap- peal 3572; Michael and Joyce Mattes. Dear Mr. Chairman, I repre- sent Sid Brandesforte and John Mickolowski, owners of premises lo- cated adjacent to the above referenced premises which are subject Of the application. I understand that the applicants seek special exception pursuant to Section 100-30, subsection B of the Southold Town Code to establish a "Bed and Breakfast" in their homes. My clients vehemently oppose that application for a number of reasons. They purchased their property based on the premise that it was akin to~ private estate. As you can see from the attached surveys, they have no private entrance to their private from Mill Road. due to traf- fic congestion but rather have access by means of a 20 fQot right-of- way. This right-of-way is in conjunction with ( ) estate and it's uniquely designed to create a "community effect". Use of it is granted to my client by deed dated October 28, 1986 attached hereto which use they share with adjoining property owners including the applicants. All adjoining property owners are responsible for maintenance of the right-of-way. It is respectfully submitted that any additional use of the right-of-way rather than the owners, an acess to all of these properties, it will create increased traffic to the area and subject my client and other adjoining owners to a legal liability in the event of an accident or other torturous in- cident. Furthermore, New York State Law requires that there be suf- ficient ingress and egress for emergency vehicles to residents and properties. I submit that the additional traffic congestion on this private road, endangers my client and the surrounding neighbors. Possibly preventing any access to their properties in the event of an emergency. The right-of-way was created to accomodate a private community limited use. Not to provide access to Please be aware that the applicants maintain a legal two-family dwelling on the subject premises at present. Use of the property as a Bed and Breakfast would constitute an overintensification of the use of the pmemises and burden adjoining property owners. Sec- tion 100-30, Subsection B-16, Subsection A; mandates adequate off- street parking for a Bed and Breakfast establishment. Realistically, in giving them a ten parking space as required to accomodate a cur- rent two-family residence.up to 6 proposed guests and employees. Thus creating a mini parking lot in the midst of a residential area. My client's home is appraised at $350,00 which appraisal is based upon the residential location of the subject parcel. A change in the hue of the adjoining property allowing use by the public will clearly depreciate the value of their home. The Boards may be aware that the applicants maintain a gift shop in the immediate vicinity. It specializes in handcrafted items. My client felt concern, right- fully so, that this business enterprise could easily extend to the subject premises as an added appeal to perspective guests should the premises come open to public use. My client, therefore, request that the Board deny this application as not being in the best in- terest of the health, welfare and general harmony of the community. Very truly yours, Terry ,Page 7 January 8, 1987 Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals CHAIRMAN GOEHRINGER: Thank you° Ms. MS. : Just a couple of things. I'm not that familiar with the question of liability. I would like to research it and submit some kind of ( ) in response to the comments that were brought up by the neighbors this evening. I do know from research that this particular right-of-way was given to the Mattes' in their deed and the language of the right-of-way is very general. Case law provides that since it is so general, to change the use, to become a more intensified use, the right-of-way still remains and they are still entitled to the use because the language is so general. I do have a case cite for that. Zoobly v. Community Mainstream Associates, Inc. This cite is 423, New York subsecond 982. It's a 1979 case and I've got a copy for the Board if you would like to see ito And it also cites a New York Court of Ap- peals case. Finally, I would like to stress that it is not a com- mercial use. The neighbors keep on saying that it's a commercial use. It's a principal use as a residence. It's just an accessory use to that residence. Thank you° CHAIRMAN GOEHRINGER: Thank you. Hearing no further comment, I make a motion closing the hearing reserving the decision untill later. Ail in favor- aye. SOUTHOLD TOWN BOARD OF APPEALS MATTER OF MICHAEL AND JOYCE MATTES THURSDAY, NOVEMBER 20, 1986, PUBLIC HEARING 8:03 p.m. Sp. Ex. No. 3572 - Public Hearing commenced in the Matter of MICHAEE AND JOYCE MATTES. Special Exception to es- tablish "Bed and Breakfast" in not more than three rooms of existing structure for a maximum of six casual, transient roomers. 50 Luthers Road, Mattituck. The Chairman read the legal notice and application for the record. CHAIRMAN GOEHRINGER: I have a sketch of the plan indicating a rather large 2-story framed dwelling on a piece of property which is on the corner of Mill Road and Luther right in Mattituck. The surveyor's name is Frost. I have a copy of the floor plan of the proposed unit. And I have a copy of the~Suffolk County Tax Map indicating this and surrounding properties in the area. Mrs. Mattes, we normally would let you do a presentation. Could I just ask Mrs. Shaw what she's referring to and then we'll go back to the situa- tion. Ok. You want to tell us Mrs. Shaw, what you're referring to." MRS. SHAW: What I'm specifically requesting is that the adjacent property owners and there are property owners immediately adjacent to their property, be given the opportunity to be formerly notified in accordance with the town code which states you are properly no- tified by a certified or registered letter. I happen to find out about this purely by chance. The other property owner was not no- tified. Either the front property, I have not been in touch with. They're not here. Obviously they're not aware of the situation. I think it is only fair given the nature of the request and the community that the case simply be readvertised and properly posted via certified letters to give all interested parties the opportuni- ty to be present at the hearing. CHAIRMAN GOEHRINGER: I just want to say that we Have 2 written notices in the file if you would like to look at them. I don't know if you were notified. MRS. iSHAW: We were not. CHAIRMAN GOEHRINGER: You were not. You're considering yourself one of the three? There's 2 others. MR.~SHAW : One would be the property belonging to Cyd Brancif0rte and the other property belonging to Henry and Mary Regina Hahn. Those are the adjacent property owners. I did speak with the Hahns. They were in Florida. And they indicat- ted that they had not received notification at the time of their departure nor at when they had talked to their .... Whoever it was. The fellow who is picking up the mail. They said they hadn't received any notices. They sent a letter on the basis of the notification that I believe you have. .Page 2 - November 20, 1986 Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals CHAIRMAN GOEHRINGER: Yes. I have an express mail letter from them. Ok. You're welcome to review the file after this and we'll make a determination. I think it only fair however, that the applicants by law, present whatever portion of the case that they want to present unless they want us to rule on this or what- ever the question might be at this point. Why don't you address the Board concerning this Mr. Mattes. MR. MATTES: First of all, I'd like to thank the Board for the opportunity to speak. I have indeed fulfilled the requirements of owner notification. Mr. and ~s. Shaw who just addressed the Board, are not entitled (according to town law) notification finally by certified letter. MRS. MATTES: Mro Lessard actual!v took me and he showed me that the two property owners;C. Branci~rte and Mr. and Mrs° Hahn were notified and he'did send notices. In fact, I know you have a copy of the folder but I also made other photostats so I do have those here. MR. MATTES: I can see no reason for delay of these proceedings because a non-adjacent property o~er would object to this hear- ing. CHAIRMAN GOEHRINGER: Alrighto assume the Shaws live there. see where I am pointing? Let me just show you a copy. I Is that correct? Did you want to MR. SHAW: I'm quite familiar with the survey. CHAIRMAN GOEHRINGER: This is a tax map copy right here° You no- tified these people. It appears it touches here° There's a ques- tion that you didn't have to notify them? MR. MATTES: Yes. That's what I was told also. MR. SHAW: The property does intersect on the property. CHAIRMAN GOEHRINGER: Just let me ask them another question° I am sorry about this. The fact that th~ other 2 people that you have contacted, the Hahn's of course know that the hearing is occuring tonight. MR° SHAW: The Hahn's are aware of it because I called them on (I believe) Tuesday morning. I had contacted Mr. Hahn's secre- tary and asked for the telephone number of the hotel they were staying at in Orlando and I discussed the matter with them and Mrs° Hahn indicated that she and Mr. Hahn would be sending you something° CHAIRMAN GOEHRINGER: That's what precipitated' the express mail letter. · Page 3 - November 20, 1986 Public Hearing - Michale and Joyce Mattes Southold Town Board of Appeals MR. SHAW: Yes. 'And they were aware of the situation and felt and I believe they left on Saturday morning of this past weekend, as whatever notification may have been sent to them was not re- ceived at that time. MR. MATTES: Mr. Goehringer, can I object? This is all heresay. CHAIRMAN GOEHRINGER: I'm just trying to .... I should... I'm just trying to give you an indication of .... The code itself is quite explicit Mr. Shaw. And that is that they have to send out the notices. They do not specifically .... I assume the notices do not specifically have to be received by the people. In other words, there's a possibility that it could be placed in a dead letter file some place. That is not the case usually. Secondly, there is also a statement in the code which clearly states that as long as it's properly advertised in the paper of record, then it is sufficient notice. So we basically do two things as in the Town of Riverhead where they post. We are not posting any. We don't post in this town. In fact, the Town of Riverhead has stopped posting and they are going to our system at this particular point. The question about proper notification to you is a situation that we'll have to discuss after the meeting, after this particular hear- ing and we'll see what develops at that point. We'll allow the Mattes' to continue with their hearing. MR. MATTES~ Indeed Mr. and Mrs. Hahn were well aware Of the pro- ceedings because they have already submitted to you documentation or actually comments on this hearing. So I would submit therefore, that they are well aware of this. Their allegations they have made that they did not receive the letter or whatever the case may beo This is all heresayo But indeed they were aware of this hearing and I suggest therefore, that we can go forward. Mr. Goehringer, would it be proper if I submit to the Board at this time, additional documentation? C~LAIR~ GOEHRINGER: Sure. MR. MATTES: I submit here to the Town Zoning Board of Appeals an original and 4 copies of some answers to some objections raised by Mr. and Mrs. Hahn. May I read them very briefly? Before the Southold Town Zoning Board of Appeals the matter of appeal number 3572; we, Michael and Joyce Mattes, petition the above caption ap- peal before the Board this evening, wish to respectfully submit the following: the adjacent property owners Mr. and Mrs. Hahn already enjoy the same or similar zoning as that for which we now apply. A copy of Mr. and Mrs. Hahn's certificate of occupancy num- ber Z9307 is submitted herewith. Their dwelling is stated on their certificate of occupancy of being seasonal non-conforming multiple dwelling. We only ask for propriority of use and do not seek to establish anything which does not substantially already exist in the subdivision. MR. SHAW : Excuse me a minute. Would the Board kindly allow Mrs. Shaw to .... Page 4 - November 20, 1986 'Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals CHAIRMAN GOEHRINGER: I'm aware of that situation. That's what I was just going to do. Mrs. Shaw, why don't you come over here so you can read Mr. Mattes lips while he's speaking. You're wel- come to come up here if you want to. MR. MATTES: Two: our property is the only property in the sub- division with 2 means of entrance and egress of Bed and Breakfast would be by our own paved driveway which exists on our property at the intersection of Mill and Luther Road. A sign on our proper- ty would direct guests to use this roadway which is our main or formal entrance. Our use of the right-of-way is incidental. Mr. and }~s. Hahn already have on their frontyard, 2 large multiple car parking lots. So it appears on our submitted survey, we will simply enlarge and improve our existing sideyard parking area which has been in existance for over 100 years. There is no provision in the town law for expansion of Bed and Breakfast use in such and Mr. and Mrs. Hahn statement is purely whimsical and fantisical. We are proud of our home and co~unity. We are certain that the restoration of our home in such is listed on the national register of historic places, have helped to boost the image of Mattituck and Southold Town. Saving of a small portion of Southold History is ample proof that we are concerned about our cormnunity. It was our wish to share that part of history with others. As we have already done through newspaper articles, house tours for local historical society and encouragement of others to embark in simi- lar projects. But most of all, this is our home. One which we wish to protect. Not something that we would jeopardize on a whim. Our concern is our bond in our request before you. If our home, given it's size and the size of the property, is insufficient or unsuitable for a limited Bed and Breakfast use~ we can take a few other houses in~So~tho!d~Towni~t~at w~uld qua!lfy. We respect- fully request that you approve of our application. CHAIRMAN GOEHRINGER: Thank you. Let me reserve comment or ques- tions until the later part of the hearing and we'll go into the specifics of it if you don't mind. Thank you very much. Was there anybody else who would like to speak in favor of the appli- cation? Anybody like to speak against the application? Yes. MR. SHAW~ I would like to preface my remarks to the Board by saying at the outset that they have a lovely home. They've done a marvelous job. If you ever have the opporunity to visit it during the open house, please do. It's beautiful. However, I do have some concerns as to a Bed and Breakfast application be- cause of the concern. I'm opposed to the application and granting. And I would like to just outline briefly my reasons. This par- ticular home is located on a 4 lot subdivision under the name of Marvin property. It is a rather unusual subdivision created by the Planning Board in that one of the conditions that the Planning Board placed on the map that was access to all of the lots would be over a 25 foot right-of-way° The paved driveway that Mr. Mattes referred to is part of the pre-existing particular driveway. I would like to point out that the entrance, one part of the driveway lies within the right-of-way which is technically on the Hahn proper- ty and the other end of the driveway is on the Mattes' property. However, it should be noted that that driveway is right at the intersection. But my point is that the subdivision as it was pro- .Page 5November 20, 1986 Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals MRS.SHAW (continued) posed is a very private type of a co~m~L~nity. Access to all 4 lots is a 25 foot right-of-way. The Planning Board could have put a public road ino They could have required that a 50 foot right-of-way be put there. Because directly to the north of our property and I will present a tax map for it, this is a hagstrom map of the general area and this is the tax map of the subject subdivision that is right at the corner of inter- section of Coxneck and Luther Breakwater Road. And behind to the north is the lot, b~o Bugdin's farm and other properties to the north. The Planning Board could have said ok. When that Marvin property is subdivided, we want a 50 foot right-of way to go through with an eventual connection to the basic line to the north 130 feet of interior road servicing all that from property to the north° But they didn't for whatever reason. I don't know° I wasn't there at the time. They chose to say that all 4 lots would have access over a private right-of-way°, I~'s not a public thoroughfare~ It is a przvate rig~t-oz-wa? which lies on the property of the Hahns and my husband and Io The effect of this right-of-way is basically to create a very secluded private type of community. This right-of-way is used only by the people who live there° It's also only maintained by the people who live there. Because the Planning Board did not set up a homeowners association~r some other legal mechanism, the construction main- tenance of this right-of-way and it's necessity is by the common agreement of the 4 property owners who agree; well ok. We're going to split up the cost proportionately among all 4 property owners. Inconsequently, the matter of fact of this is to create a very private type of a community° I don't think that this right of-way was ever intended to be used as commercial access° And I find it difficult to believe that in the operation of a Bed and Breakfast that you're going to necessarily prevent people from using the driveway. It's a circular paved driveway and inevita- bly people are going to use this. It was intended to be a pri- vate driveway. Not something for commercial access. The second point that I would like to make is that the increase in the num- ber of cars and vehicular traffic° At present, the Mattes' own 4 cars° All of which are parked in what is their frontyard. Now this particular piece of property happens to have 3 frontyardso It has frontage on Coxneck Road that becomes Mill Road° (CHANGED TAPES) ~S. SHAW: It has frontage on Breakwater, Luther and Breakwater Road and it also has frontage on the right-of-way. All of the 4 lots frontyards have front yards facing this right-of-way. That point was made quite clear to me when I went to apply for the building on my particular piece of property. Mro Lessard in- formed me that the house would have to be set back 50 feet from the right-of-way protecting that in the frontyard. So you have an unusual situation by they have a house with 3 frontyardso Currently, they park the 4 cars on one of those frontyards and that frontyard that they happen to use is the one that faces the right-of-way. They could park the cars on the grass. The or- dinance requires, a special exception requires that they provide .Page 6 November 20, 1986 Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals MRS. SHAW (continued) parking for the guests. Now they're allowed to have 3 rooms and up to 6 transient guests which means that in addition to the 4 cars that now exist, you can have a potential with 3 to 6 additional cars. You can either have 1 car per couple or you can have the very interesting possibility that you have 6 people in 3 rooms each with their own car. So you have the possibility of 5 to 10 cars total in a frontyard. That's get- ting to be on the line of a parking lot in the sense that what is to be a frontyard is now a depository for 5 to 10 cars. I noticed in the special exception requirement that it shows that in subsection 8 of 122 it shows that the necessity for patillion surface space for the purpose of offstreet parking for vehicles incidental to the use and whether such mpace is reasonably ade- quate and appropriate and should be furnished by the owner of the property. And I'd just like to say that they do not have such parking. They have the lawn and I don't feel that a front- yard is an appropriate place for 5 to 10 cars. The other thing that I wish to concern .... One of my concerns .... Most residen- tial subdivisions do have single and separate lots fronting on a public thoroughfare. And consequently each lot has it's own separate driveway onto a public street. This particular subdi- vision happens to be the type of a subdivision where all the lots front onto a private driveway and access is from that drive- way onto the street. It's sort of a more secluded type of a sub- division. ~t's not your usual run of the mill thing. And I would like to add that my husband and I have paid a premium for a lot in this particular situation. It's an unusual situation, It seems to me that the intrusion of a cormmercial use into this type of residential development was not something that the Plan- ning Board envisioned and I don't think it's something that the Town Board envisioned either when it adopted this Bed and Break- fast piece. I recognize that if we, all of our lots were on a Main Road or Sound Avenue and close proximity to the Hamlet like on Pike Street in Mattituck, I would not be here objecting to it becuase that's a logical place to have a Bed and Breakfast. We're talking about a side street about a mile and a half north of Sound Avenue. It's on a small rural country road. We're sort of in the backwater. This isn't Main Street. And I just feel that having this commercial use is a detriment. A real detriment to our community. One of the other things is the bluffs. This particular subdivision is very close to Howard Creek which is an arm of Mattituck Creek which stretches out into the Sound. These 4 lots also share access to that creek over a 25 foot right- of-way. At the present time, we do not have a dock there but it is something that has been talked about by at least 3 of the proper- ty owners (the Mattes' included) that we do put something in. My concern is that when you have a Bed and Breakfast place, the way the ordinance is set up, there is no way to prevent this from mush- rooming. We have the possibility of 5 to 10 cars in the frontyard. We also have the possibility of someone saying; well golly, let's go down to the water or let's arrive by boat. Let's come in this way. There's nothing to stop the Mattes' from obtaining a mooring permit and saying we'll arrive by boat and row up to our dock and walk up the street and you're in our Bed and Breakfast place. And Page 7 - November 20, 1986 Public Hearing Michael and Joyce Mattes Southold Town Board of Appeals MRS. SHAW (continued)~ again, I would resent intrusion into the whole nature of the community. It's hard enough getting 4 people to agree on main- taining much else dealing with 4 persons plus a business and I think that this is something the Board should look into for con- sideration when it reviews this application. As I said before, this is a unique residential community. It's something you don't find very often and I would just like to be able to preserve these qualities there which is that secludeness. And I don't think that adding the commercial aspect of a Bed and Breakfast is an asset to it. Particularly in light of the fact that the way the ordinance is intended there is no way of preventing it from being abused and I'm not applying that Mr. Mattes would abuse it. Two months down the road someone could make them an offer they can't refuse and that special exception still holds and someone else can run this Bed and Breakfast. Then where are we? Those are my objections. CHAIRMAN GOEHRINGER: Thank you very much. MRS. SHAWl You're welcome. CHAIRMAN GOEHRINGER: Before you go, I got one more question. Did you want to rebutt anything that was said there sir? MR. MATTES: Yes I would Mr. Goehringer. As I stated in the comments filed with the Board this evening, I do not intend the Bed and Breakfast guests to use that right-of-way. I think that argument would be irrelevant. Second of all, mine, again, I stated to the Board, is the only property of the 4 which has 2 entrances and exits. The other properties must use~that right- of-way. I do not. I have a separate entrance on the road and that's the entrance I purely use any way because the other one kind of takes me away from the corner and so on and so forth. That's the one I would intend the Bed and Breakfast people to use. I don't own a boat. I don't intend to use that right-of- way there on the Creek because basically that'thing is all silted in any way. It's muddy and not much use to anybody. It does run with the property but I have no intention of using it. I haven't used it in the 8 years I've lived there., As far as the secluded area, it~ concern and the fine area which we live, I couldn't agree any more with anybody else. I think Mattituck is a great area. That's why I've stacked 8 years of building, sweat and soil un- der that house. Not only for this matter of personal satisfac- tion for my wife and myself but also that I feel I'm giving some- thing back to the community.which I enjoy. I respect my neigh- bors. I respect the community. CHAIRMAN GOEHRINGER: Is there any type of screening that you would be placing around the parking area? MR. MATTES: Well I was going to do some additional landscaping and I would suggest maybe putting up maybe evergreens or ferns or something. Page 8 - November 20, 1986 Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals MRS. MATTES: Part of our property boundary there is shrub. CHAIRMAN GOEHRINGER: I'm aware of that. MRS. MATTES: There is also a berm which separates us from the Hahn house. It is on the Hahn property but it runs about the length of the Hahn house and the shrubs are really mature pine trees and they're like 15 feet high now. But we are planning on doing a lot of new shrubbery outside. The place where the cars are parked now, it is gravelled rather than just on the grass and we realize that we would have to up grade that to black top and improve that. We're aware of that. MR. MATTES: As far as our frontyard being used for parking, I would state that the Hahn's have 2 parking lots in their yard ~ facing their right-of-way and they park there any where from 3 to 5 cars. They also have a garage there additionally. CHAIRMAN GOEHRINGER: Mr. Mattes, when you had mentioned the c.o. of the Hahns, that was non-conforming. MR. MATTES: I submitted it Mr. Goehringer. Yes they are of a seasonal multiple use. So I'm not asking for something they don't already have. CHAIRMAN GOEHRINGER: You're referring to the, not specifically the way the property is now but when it was originally a carriage house as it exists. MR. MATTES: Mr. Hahn has a lot of visitors over there. I can't tell you exactly how he uses the property. He's in presently .... CHAIRMAN GOEHRINGER: I'm talking about since its most recent up- dating when it was rebuilt. MR. MATTES: I am not that familiar with all the people that come over there. There are a lot of people that visit and stay over the weekends. I don't know if they're getting paid. MRS. MATTES: This is the current c.o. they came for when they came to file and their occuring c.o. CHAIRMAN GOEHRINGER: Well it would probably carry right on through. It wouldn't change. You know what I'm saying? Because you have a 2 family house, 2 family status right now also. So it just perpetuates. MR. MATTES: Right. The other 2 family has the multiple. So I'm not asking for anything that one of my adjacent property owners doesn't already have. · Page 9=- November 20, 1986 Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals CHAIRMAN GOEHRINGER: Ok. Let's see what else. We still have not discussed the issue of proper notice but we'll see what de- velops. I'm trying not to carry this too lengthy. Thank you. Mit. MATTES: Thank you. CHAIRMAN GOEHRINGER: Yes. Mr.~Shaw. MR. SHAW: There is something I would like to say. I don't think that my wife and I, I don't believe .... We're not unalterably op- posed to the establishment of a Bed and Breakfast but we are fa- miliar with the law. And the law is regrettably vague in terms of the requirements, the standards that are to be met. It makes no provision for inspection. It makes no provision for a number of things. Now our experience with the Mattes' is that they keep their house very nicely. They do a great deal with it. But as my wife pointed out, the exception runs with the property. And the law as it is written, does not address the whole range of things that ordinarily that kind of a law would address. To just assume you can do it in 3 rooms, we've all been over that before. I think that if there were a specific set of (I don't know if I'm using the correct term.) convenants and restrictions that would run with the property that is spelled out very clearly and explicitly exactly how the Bed and Breakfast operation will be run, we would feel rather differently. But I don't know even if the public hear. ing is the place to bring that particular thing up. Based on that thought, we feel obliged to oppose it. I would like to resolve certain key questions. One of which is liability for the right- of-way. The terms ~ the subdivision very specifically states that the second entrance .... I don't know how the pre-existing thing works but I guess that's what makes it useable and we would have to do a little more research on that. But it specifically states that access for all lots is over the 25 foot right-of-way which is shared and which we've already had quite a go around.. Not with the Mattes's but trying to hammer out an agreement to serve this proper- ty. Anyway, as I say, not to delay at this point, I wouldn't throw that one issue out. A very clear and detailed covenant that would run with the property and which would be enforceable by any of the other owners in the subdivision would make a difference in our stand on this issue. CHAIRMAN GOEHRINGER: It's a very interesting point you bring up because this Board is not a Board that usually places covenants. We place restrictions but they are not necessarily deeded cove- nants and so on and so forth. I should however, point out to you Mr. Shaw, that (I'11 probably get in trouble by saying this but I've been in trouble recently anyway so it doesn't make any dif- ference) the public hearing did occur. I did go to the public hearing and I did mention to those particular members of the Town Board that I felt that additional things should have been placed, cast within this particular law. And they had, through their wis- dom, felt (I assume) that it wasn't necessary. So we all know the type of people we're dealing with here. And of course living around · Page 10 - November 20, 1986 Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals CHAIRMAN GOEHRINGER~(continued) the corner from them, I know the Mattes'. I've known them for many years. I've never been in their house since they've pur- chased the house. But what you are saying concerning the pos- sibile selling of the house or whatever the case might be, cer- tainly has merit in this particular case. I think at this par- ticular point we should deal with the issue of notice. As for the area of ingress and egress over the common right-of-way, (I'm going to address this question to the Mattes') you pre- sently use the common right-of-way for mainly egress. Is that correct? MR. MATTES: Yes sir. MRS. MATTES: It's mo~e of an incidental. We use the basic en- trance which is at the corner. Most of the time it's more con- venient. CHAIRMAN GOEHRINGER: Do you go around the Port of Gull at all? MR. MATTES: Yes. CHAIRMAN GOEHRINGER: You do go around it. MR. MATTES: You mean I go through the port. CHAIRMAN GOEHRINGER: Can you make a turn coming in if you're using the right-of-way in question? Can you enter that as easi- ly as you enter it from a reversal side or from the train track side? MR. MATTES: Usually I don't because it means driving north. CHAIRMAN GOEHRINGER: So you're going through the big tree and usually up and around. MR. MATTES: Up through the big tee and through the Port coming out. CHAIRMAN GOEHRINGER: Alright. How staunchily opposed are you Mr. Shaw about us closing this hearing tonight? MR. SHAW: : Well I think we have said just about everything that concerns us. I believe the issue of notification is something that had we'd been notified and actually our reason to wanting to adjourn it was that it would have been good if we could have had time to dis- cuss with the Mattes' directly and perhaps informerly some kind of an arrangement to properly and clearly define what the use of the property will be. As I say, I'm not staunchily opposed to closing the hearing. I don't know what the Hahns said. I know they've ex- pressed themselves and I don't know whether or not the Brandts are for or even aware of the situation. I don't know° What do you think? Should we hold it over? Do you want an adjournment? Page 11 - November 20, 1986 Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals CHAIRMAN GOEHRINGER: We haven't voted on this yet so we're just placing it on... MRS. SHAW I would suggest that we adjourn it for one reason. I think that because of the egress situation that it will be use- ful to the Board if they had a site inspection sometime without prior notification to see the site.'i~And if the Board determines that it wants to put some conditions on it, they could at least put on them on the knowledge of what it's dealing with. CHAIRMAN GOEHRINGER: We have all made site inspection. Not in- eriorily. I know the house. I have not made an interior. MR. MATTES: No. I would welcome an inspection by the Board, inside. MRS. MATTES: I would be glad to meet with any of the neighbors that want to discuss it because we have very detailed plans, what we plan to do. We have travelled the country and gone to some of the very best Bed and Breakfast inns that the country has to offer getting ideas because we put so much into the house that we're not going to... We're going to be very specific about who would stay there and who would run it. And we have been working very hard to restore the house very accurately and to put period furniture in there and we want those things to be taken care of too. MR. SHAW: ~As we said before, our true concern is not how the Mattes' are going to run the Bed and Breakfast because we have seen how they've restored their house. Our concern is what runs with the property. In that sense, we are saying we don't object but we object unles there is something that we can enforce either here coming into the town that we can through section 78, force the town into enforcing or running directly with our land. We would like the use of the right-of-way clarified. Both rights- of way, etc., etc. Exactly how it's going to be done. CHAIRMAN GOEHRINGER: Mr. Mattes, do you have any objection (I should address both of you. I apologize.) if I had gotten a legal opinion during the period of the next 3 weeks and we reconvened the hearing for a short period of time and just close it at that particular point concerning the convenants that these people are referring to which we are not totally privy to. I'm being honest with you. We do not deal with the imposition of covenants as the Planning Board does. And they in many times, don't even vote on something until those covenants are undellabily placed on the property. That does not necessarily mean we're going to do it. Ail I want is a legal opinion. MR. MATTES: Certainly. But I mean as a general statement. I would not object to a covenant or a restriction being placed by the Bed and Breakfast guests on the use of the right-of-way. CHAIRMAN GOEHRINGER: I see. Ok. We are scheduled to have the next meeting on December 11 which is only about 3 weeks away. We are not hoping that it's not going to be a lengthy meeting in any case. I would like to reconvene this for about 5 minutes at that p~rticular pgint if you don't have any tremendous object tion at t~is particular time. And maybe you could meet with the... Page 12 - November 20, 1986 Public Hearing - Michael and Joyce Mattes Southold Town Board of Appeals CHAIRMAN GOEHRINGER (continued) I got into a little of trouble about 3 weeks or a month ago suggesting that neighbors meet. And in any case, I don't think that we have the problem here that we had at that particular hear- ing. So I sincerely hope that you do and would come back with some constructive things. And I thank you very much. The both couples for being (your family) so courteous. This has really been an absolute pleasure of a hearing and I thank you. So I'll make a motion recessing the hearing to the next regular scheduled meeting. We'll attempt to have it on the early part of the evening and wrap it up and then we'll make a decision. Hearing no further questions, I'll make a motion recessing the hearing again. Ail in favor.- aye. FOB~ NO. 4 TOWN OF SOUTHOLD BUHJDING DEPARTMENT Town Clerk's Office Southold, N. Y. Certificnte Of Occupnncy No. z 9306 Date ......... ¥.o.v.e.~b..e.r..%.7, ..... , lg.7.~. THIS CERTIFIES that the building located at ~:~!,::<a.~. ~.r..%. :~p/~.~. ;4.i3,1.. ~treatxnOad ~n Lot 1 of Edgar_~ ~r~Dne Marvin~ Mi~or Subdivisfon No. 149 XXX X XXX. X XX ~l~f~ ~I XX X X,XXX X ~ ................................. R~QUIRE~?~NTS FOR A NON-CONFO,~ING TWO -FAMILY DI{ELLING built conforms substantially to the prior to i{}~]x ..A~>r£~..~, ...... , 19.~ ......... v.,. p~suant to which~~t No. z.. ~.~ ~j..~. dated ...~{q¥.e:)~e.~...~.7.,. ......, lg'! ~.., was issued, and conforms to all of the require- ments of the applicable provisions of the law. The occupancy for which this certificate is issued is .. ~..Uq~.~:-.~q< [ P.~::' .~.~f~.. ~.".~'.~.-:~f,~:~ .1 y. P.k,-~) J-i~.:?~.* .......................... The certificate is issued to EDCAF, -~%XRV!N (owner, ~Ib~"6¥'t~fi'~i~t) of the aforesaid building. Suffolk County Department of Health Approval . .P. ~.'::~:~[~.~J~.:(~ .................... UNDERWRITERS CERTIFICATE No ........... .p.i!~? [ !~!<.I.:~.".~!~.~ ................... HOUSE NUMBER ...... .5.0. ..... Street ....~.r. ?!?<:i ~? !:.."!?~[~.'..'.:~.?i i..~.u[.~i; ...... Nuw York c,,unty Tax :.lap ~:o. ~i lO00-113-3-part of Lot 7 ~ / Building Inspector *This does not cover the dwelling sitting on the line of Lot No. 1 and Lot No. 2 which must be removed. May 21, 1987 Victor Lessard Southold Building Department Town Hall Southo!d, NY 11971 Re: Mattes Bed and Breakfast Permit Dear Mr. Lessard: I have had the opportunity to review the special exception granted to the Mattes premises and am of the opinion that once the Mattes' have complied with the deci- sion of the Board of Appeals relating to parking, fencing, access, and the like; we are required under our zoning ordinance to grant a certificate of occupancy. There is no provision in the local law or in the determination of the Board of Appeals, which authorizes or requires that the Mattes' submit to annual inspection. This opinion would also apply to those Bed and Breakfast establishments which have received special exception determinations from the Board of Appeals prior to that given to Mr. and Mrs. Mattes and which decisions do not contain requirements for annual inspections. FJY/dnb JOHN R, McNULTY ARTHUR DiPIETRO JANES SPIESS BARBARA L COUGHLAN McNULTY, DiPIETRO & SPIESS BI6 - 727-8200 March 9, 1987 Robert W. Tasker, Esq. 425 Main Steet P.O. Box 697 Greenport, New York 11944 Re: ZBA Approval of Mattes Bed and Breakfast Use Appt. No. 3572-SE Dear Mr. Tasker: Enclosed herewith please find a draft of a Declaration of Covenants and Restrictions, prepared in accordance with the Southold Town Board of Appeals decision 93572-SE. Kindly review said Declaration and if everything is in order, please contact me so that I may record it. Very truly y~urs, BLC/tms Enclosure cc: Southold Town Board of Appeals DECLARATION THIS DECLARATION, made the day of March, 1987, by MICHAEL MATTES and JOYCE MATTES, both residing at 50 Luther's Road, Mattituck, New York, 11952, hereinafter referred to as the Declarant. WHEREAS, the Declarant is the owner of certain real property situate at the corner of Luther's Road and Mill Road, Mattituck, in the Town of Southold, Suffolk County, New York, more particularly bounded and described as set forth in Schedule "A" annexed hereto, and WHEREAS, the Declarant has made application to the Zoning Board of Appeals of the Town of Southold for approval to establish a "Bed and.Breakfast Use", on the said real property described as ~et forth in Schedule "A", and WHEREAS, for and in consideration of the granting of said approval, the Zoning Board of Appeals of the Town of Southold has deemed it to be for the best interests of the owners and prospective owners of said parcel that the within covenants and restrictions be imposed on said parcel, and as a condition of the said approval said Zoning Board of Appeals has required that the within Declaration be recorded in the Suffolk County Clerk's office, and WHEREAS, the Declarant has considered the foregoing and determined that the same will be for the best interests of the Declarant and subsequent owners of said parcel, NOW, THEREFORE, THISDECLARATION WITNESSETH: That the Declarant, for the purposes of carrying out the intentions above expressed, does hereby make known, admit, publish, covenant and agree that the said premises herein described shall hereafter be subject to the following covenants which shall run with the land and shall be binding upon all purchasers and holders of said premises, their heirs, executors, legal representatives, distributees, successors and assigns, to wit: 1. That the grant of a Special Exception for a Bed and Breakfast in accordance with the requirements of Article III, Section 100-30(B)[16] of the Zoning Code of the Town of Southold is limited to the within described property, as set forth in Schedule 2. That the subject Bed and Breakfast use shall be accessory to the principal use of the premises, a single- family residence, with owner occupancy, and shall be permitted only while the dwelling is the permanent residence of the Declarant, his heirs, successors and assigns, or any other Purchaser of said premises. 3. That ingress and egress by Bed and Breakfast roomers of the subject property shall be from Luther Road, and a driveway area for such access shall be provided from Luther Road over lands of the Declarant, as set forth herein in Schedule "A", to an on-site parking area. 4. That the said driveway shall be located a minimum of fifteen (15) feet from the Declarant's northerly pro- perty line or right-of-way, whichever is closer. 5. That a minimum of five (5) on-site parking spaces shall be provided at the northeasterly section of the subject premises. along the shrubbery shall consist of a minimum height of three maximum height of six and one-half (6 1/2) That the said parking spaces shall be screened North and East sides thereof with shrubbery. Said is to be continuously maintained by Declarant and (3) feet and a feet. 7. That Declarant shall comply with the N.Y.S. Construction Code and other applicable codes. 8. That the subject Bed and Breakfast use shall be accessory to the principal single-family dwelling use. 9. That the grant of a Special Exception for a Bed and Breakfast is subject to the requirements of Subsection 16 of Article III, Section 100-30(B) of the Zoning Code of the Town of Southold. 10. That~the subject, premises as herein described shall be used only as a single-family dwelling with allowable accessory uses, including a "Bed and Breakfast Use" as set forth above. 11. That the within Declaration may not be annulled, waived, changed or modified, unless and until approved by resolution of the Zoning Board of Appeals of the Town of Southold. IN WIT~ESS W~EREOF, the Declarants above named have executed the foregoing Declaration the day and year first above written. MICHAEL MATTES JOYCE MATTES STATE OF NEW YORK) )ss: COUNTY OF SUFFOLK) On the day of March, 1987, before me personally came MICHAEL MATTES, to m~ known and known to be the individual foregoing instrument to me described in and who executed the and acknowledged that he executed the same. NOTARY PUBLIC STATE OF NEW YORK) )ss: COUNTY OF SUFFOLK) On the day of March, 1987, before me personally came JOYCE MATTES, to me known and known to me to be the individual described in and who executed the foregoing instrument and acknowledged that she executed the same. NOTARY PUBLIC SCHEDULE ALL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being at Mattituck, in the Town of Southold, County of Suffolk, and State of New York, bounded and described as follows: BEGINNING %t the corner formed by the intersection of the northerly side of Mill Road with the easterly side of Luther's Road and from said point of beginning; RUNNING THENCE along the easterly side of Luther's Road North 5 degrees 37 minutes West 267.20 feet; THENCE South 86 degrees 49 minutes 20 seconds East 295.00 feet; · THENCE South 01 degrees 37 minutes 50 seconds West 260.00 feet to the northerly side of Mill Road; THENCE North 87 degrees 44 minutes 00 seconds West along the northerly side of Mill Road, 261.20 feet to the corner at the point of place of BEGINNING. ~TOGETHER with a right of way over a 25 foot strip of laed running from the southerly side of Mill Road to Mattituck Creek, more particulary bounded and described as follows: BEGINNING at the northwesterly corner of the parcel herein described distant the following three courses and distances from a monument situate at the intersection Of the southerly line of Mill Road and the westerly side of Jackson's Landing; 1. North 88 degrees 02 minutes 20 seconds West, 41.20 feet; 2. South 69 degrees 04 minutes 40 seconds West, 3.0 feet; 3. North 87 degrees 44 minutes West, 297.0 feet; TEENCE from said point of beginning running along th~ southerly side of Mil Road South 87 degrees 44 minutes 00 seconds East, 25 feet to a point and lands now of Earvin; THENCE RUNNING South 3 degrees 39 minutes East, 115.0 feet more or tess to the ordinary high water mark of ~dattituck Creek; TEENCE in a westerly direction alon9 the ordinary high water mark of Mattituck Creek, 25 feet'more or less to lands now or formerly of Sullivan; TEENCE along said last mentioned lands, North 3 degrees 39 minutes, West 117.69 feet to the point or place of BEGINNING. TOGETHER with a right of ingrees and egress in common with others to and from Luther's Road over a 25 foot right of way the southerly line of which is the northerly line of the premises herein described, and which line runs t~e following course and distance, to wit= South 86 degrees 59 minutes 20 seconds East 295.00 feet. ROBERT W. TASKER Town Attorney OFFIC~DORNEY 425 MAIN STREET * P.O. BOX 697 GREEN'PORT, L.I., NEW YORK 11944 TELEPHONE (516) 477-1400 March 11, 1987 Barbara L. Coughlan, Esq. McNulty, DiPietro & Spiess 130 Ostrander Avenue P. O. Box 757 Riverhead, New York 11901 Re: ZBA Approval of Mattes Bed and Breakfast Use Application No. 3572-SE Dear Ms. Coughlan: I have reviewed the declaration of covenants and restrictions sent to me in your March 9, 1987 letter, and find them in accordance with the requirements of the Southold Town Zoning Board of Appeals decision ~in this matter. RWT/jr cc: Southold Board of Appeals Yours very truly, ROBERT DEPARTMENT OF PLANNING COUNTY OF SUFFOLK Michael A. LoGrande SUFFOLK COUNTY EXECUTIVE 360-5206 LEE E. KOPPELMAN Town of Southold Zoning Board of Appeals February 28, 1987 Pursuant to the requirements of Sections 1323 to 1332 of the Suffolk County Charter, the following application(s) which have been referred to the Suffolk County Planning Commission are considered to be a matter for local determination. A decision of local determination should not be construed as either an approval or a disapproval. Applicant(s) Municipal File Number(s) Michael & Joyce Mattes Robert E. Johnson 3572 3587 Yery truly yours, Lee E. Koppelman Director of Planning GGN:mb S/s Gerald G. Newman Chief Planner APPEALS B(~ARD MEMBERS GERARD P, GOEHRINGER, CHAIRMAN CHARLES GRIGONI$,JR. SERGE DOYEN, JR, ROBERT J. DOUGLASS JOSEPH H. SAWlCKI Southold Town Board of Appeals MAIN ROAD- E~TATE R{3AD 25 5{3UTHDLD, L.I., N.Y. 11971 TELEPHONE (516) 766-1809 Pursuant to Article XIII of the Suffolk County Charter, Board of Appeals of the Town of Southold, New York, hereby the 'following to the Suffolk County Planning Commission: Variance from the Zoning Code, Article , Section the refers Variance from Determination of Southold Town Building Inspector Special Exception, ArticleIIT , SectionlOO-30(B)(16) Special Permit Appeal No.:3572 Applicant: Location of Affected Land: County Tax Map Item No.: Within 500 feet of: Town or Village Boundary Line Michael and Joyce Mattes 50 Luthers Road, Mattituck, NY 1000-113-03-7 ~x Body of Water (Bay, Sound or Estuary) State or County Road, Parkway, Highway, Thruway Boundary of Existing or Proposed County, State or Federally Owned Land or Boundary of Existing or Proposed County, State or Federal Park or Other Recreation Area 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, Within One Mile of a Nuclear Power Plant Within One Mile of An Airport. COMMENTS: Applicant is requesting permission to. ~Rhmhl(~h "~a ~na _ Breakfast USE," Copies of Town file and related documents enclosed for your review. Dated:February 24, 1987 ~.~_~~~_~_. Secre~r~, Doard~6-iF ~-~ Southold Town Board of Appeals APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONtS, JR. SERGE DOYEN, JR. ROBERT J. DOUGLASS JOSEPH 14. SAWlCKI February 20, 1987 Barbara L. Coughlan, Esq. 130 Ostrander Avenue, Box Riverhead, NY 11901 757 Re: Appl. No. 3572-SE - Michael and Joyce Mattes Dear Ms. Coughlan: Transmitted herewith is a copy of the official findings and determination rendered in the above matter. _ Please be sure to return to the Building Department and the Suffolk County Health Department if applicable, for reviews and issuance of permits or other documents necessary for this project. Yours very truly, GERARD P. GOEHRINGER CHAIRMAN By Linda Kowalski Enclosure Copy of Decision to Mr. and Mrs. Douglass Shaw Perri Carol Fitterman, Esq. Mr. and Mrs. Henry M. Haan Building Department Suffolk County Planning Commission 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, .IR. ROBERT J. DOUGLASS JOSEPH H. SAWlC½1 TO WHOM It MAY CONCERN: Enclosed herewith as confirmation of the time and date of the public hearing concerning your recent application is a copy of the Legal Notice as published in the L.I. Traveler- Watchman, Inc. and Suffolk Weekly Times, Inc. Someone should appear in your behalf during the public hearing in the event the're are questions from board members or persons in the audience. Please be assured that your public hearing will not start before the time allotted in the Legal Notice. If you have any questions, please feel free to call our office, 765-1809. Yours_ very~J.~/Z -- G'ERARD P. GOEHRINGER CHAIRMAN Enclosure Linda .Kowalski Secretary and Board Clerk ,JOHN R. MCNULTY ARTHUR DIPIETRO JAMES SPIESS BARBARA L. COUGHLAN McNULTY & D~PIETRO ATTORNEYS & COUNSELORS AT LAW 130 OSTRANDER AVENUE P. O. BO× 757 RIVERMBAD. NEW YORK I1~OI January 30, 1987 PAT FRANK NESCI EDWARD D. SURKE OFCOUNSEL Southold Town Board of Appeals Main Road State Road 25 Southold, New York 11971 Attention: Gerald P. Goehringer, Chairman re: Appl~%oR ~_~gyce & Michael Mattes Dear Mr. Goehringer: As you may recall, at the Board's hearing on January 8, 1987, opponents to the Mattes' application raised a question with respect to liability on the 25-foot right of way running to Luther Road. At that timer I requested that I be allowed time to respond to this question of liability. This letter is written in light of that request. Initially, I respectfully assert that 'the issue of liability on the right of way is not within the purview of the Board of Appeals. The applicants have presented to the Board a deed, which indicates that the applicants have a right of ingress and egress over a 25-foot right of way located to the north of the applicant's property. The critical question before the Board is whether or not the Mattes, in fact~ have a means of exit from their property to enable them to run a bed and breakfast establishment in their home. I believe that this deed indicates that they do have that right. Any question which may arise concerning that right or any hypothetical increase in liability resulting from an exercise of that right is a civil matter for the Supreme Court and not one to be considered by this Board. However, I will point out, as I did at the hearing of January 8, 1987 and in my letter to the Board of January 13, 1987, that New York case law provides that since the right of way granted to the Mattes by deed, is general in nature, (a right of way for ingress and egress), a change in the use of their house does not create an overburdening of the right of way entitling the servient estate holder (the Hahns) to relief. McNULTY ~ DIPIETRO Page Two January 30, 1987 Again~ I direct your attention to the case of Zubli v. Community Mainstreaminq_A~ssgc%a~gs! I~g~, 102 Misc. 2d 320, 423 N.Y.$. 2d 982(1979), which held that where there were no words of restriction in the easement other than that it was to be used for a means of entrance and exit- the purchase by a non-profit corporation of the property from the dominant estate holder in order to use the house as a resident facility for mentally disabled adult~ did not violate the easement on the basis that such property had been used as a single family residence and that the easement over the adjoining property was designed for such use and contemplated only such use. Is. at 990. The Zubli Court went on to state that "the ommission from the grant here of any words limiting the use of this ease- ment.., must control the construction of the grant~ for a limitation upon the existence and continuance of an easement privilege can be predicated upon a change in the character or use of the dominant property only when an intention to impose such limitation is found in the language of the grant itself." Id. (Citing the Appellate Division case of Mittnacht v. Montana, 205 A.D. 643, 200 N.Y.S. 82/(1923). I believe that this should resolve the questions concerning use by the Mattes and their guests of the 25-foot right of way running to the road. Further, this same reasoning is applicable to any question concerning the right of way running ~o Mattituck Creek. If you have any questions, please do not hesitate to contact me. Very truly yours BARBAR~%/L. COUGHLAN BLC/tms cc: Joyce & Michael Mattes Robert Tasker~ Esq. ,JOHN R.I,4cNULTY ARTHUR DiPIETRO ,.JAMES SPIES$ BARBARA L. COUGHLAN McNULTY & DiPIETRO ATTORNEYS & COUNSBLORB AT LAW January 13, 1987 PAT FRANK NESCI EDWARD D. BURKE OF COUNSEL Southold Town Board of Appeals Main Road State Road 25 Southold, New York 11971 Attention: Linda Re: Application of J0yc~ and Michael Mattes Dear Linda: As per your teleDhone conversation with my office of January 12, 1987 I enclose herewith copies of the following cases, which were cited in my Memorandum of Law: 1. Green v. Lo~rande, 96 A.D. 2d 524, 464 N.Y.S. 2d 831 (2nd Dept. 1983); 2. Matter of North Shore Steak House v. Bd. of Appeals 30 N.Y. 2d 23~, 331 N.Y.S. 2d 645 (1972); 3. North Shore Equitees v. Fritts, 81 A.D. 2d 982, 440 N.Y.S. 2d 85 (3rd Dept. 1981); Matter of Tandem.Hold%ng.Corp. v. Bd. of Zoning Appeals of Town of Hempstead, 43 N.Y. 2d 801, 402 N.Y.S. 2d 388'(i977); 5. Sal De Enterprises, Inc. v. Town of Islip, 99 A.D. 2d 469, 470 N.Y.S. 2d 176 (2d Dept. 1984). Please note that a line was inadvertently left out of page two (2) of my Memorandum of Law, said line being that which is highlighted on the corrected page two (2) enclosed herewith. This should clarify the quote from the case of Green v. LoGrande/ Supra. I also enclose herewith a copy of the case of Zubli v. Community Mainstreaminq Assocs., Inc. 102 Misc. 2d. 320, N.Y.S. 2d 982, aff'd 425 N.Y.S. 2d 263 (2nd Dept. 1980), which I made reference at the hearing on January 8, 1987. 423 to McNULTY ~ D~PIETRO Page Two January 13, 1987 If you require additional information, please do not hesitate to contact me. BLC/tms Encs. cc: Joyce & Michael Mattes Very truly yours, 4ny'e edvert~i~g .,titled to fe~, u~- ;ter reprmentatlve :at az repr~ent~ -led at that point, ap~ointmm~t wm to repre~ntatlve's e appointed in ~d summary ju~- ultant was entitled ~daie, for nppelhmt. ,inlnn, Garden City .rden City, of coun- -ncce Florence Kef- ;Id, Cedarhurst, for y. ., end MANOANO, )FF, JJ. · THE COURT. ~over damag~ for g contract, plaintiff of un order of the · County, dated June motion for summary the law, by sddi~ nting partial summa- .efendants dimaiming o the e~nt ~ it ~ul~ng f~ ~Y~ · ~ ~ m~ifi~ o~r ,~1~ from, ~t~ut ~e, w~ an iud~ fling ~ve~ ~ ~hing ~. (~mi~ ~m~, 1~, ~ e~ ent ~th h~ ~n em. net and ~ ~, C ~ mp~n~ f~ en~on of ~e ~ a a~ ~W at a f~ of :o y~ ~d $1,~ ~ GREEN v. LO GRANDE month for the seven years thereafter. Clause (AX3) governed termination of the agreement prior to the expiration of its term, stating: "In e~e the said agreement between Them~ and Kerner should terminate, or in c~e Kerner or Levy should cease to represent Thomas in its publishing bnsi- ne~, the employment of Do)me shall eea~, and neither Kerner or Levy will be required to pay him any further compen- In 1979 Kerner became serions]y ill and Thomas notified him in December, 1979, that his contract to act for the company was cancelled for reasons of health, that Levy was appointed in his place, and that if Kerner regained his health he would be reappointed. Kerner died in March, 1980, and Levy continued to manage the business. When Doyne failed to receive any payments after January, 1980, he brought this action against Levy and Kerner's estate, seeking $35,000, representing the final 35 payments under the agreement. Levy defended on the basis that the agreement terminated upon the loss of Kerner's license in Decem. bur, 1979. Plaintiff now appeals from so much of Special Term's order as denied his motion for summary judgment., The threshold determ~nation'7]~,whether the termination clause in the partnership agreement is ambiguous (see Sutton v. East Riv. S~v. B~k, 55 N.Y.2d 550, 450 N.Y.S.2d 460, 435 N.E.2d 1075). This analysis in- volves a determination az to whether rea- senable men may reasonably differ ns to the meaning of the language employed in the contract~ or whether the words hnder examination have a definite and precise meaning concerning which there is no rea- sortable basis for a difference of opinion (Breed v. Insurance Co. o£ North Amer., 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 385 N.E.2d 1280). In our view, the clause is unambiguous since it clearly provides for termination upon the termination of Kef- nor's contract with Thora~ or upon either Kerner or Levy ceasing to represent Thom- as. But, as determined by this court in a related action, there is a question of fact az 831 to whether Kereer's appointment as Thom- az' representative was cancelled in Decem- ber, 1979, when Levy waz appointed in his place, or whether the appointment lazted until Kerner's death in Marchi 1980 (see Kernor v. Levy, 88 A.D.2d 796, 450 N.Y.S.2d 644). Although d~fendants did not cross-ap- peal, this court may search the record and grant them partial summary judgment (see CPLR 3212, subd. [bi; Jim, Jack & Joe Realty Corp. v. Rothenbur~, 78 A.D.2d 634, 432 N.Y.S.2d 110). Since the defendants are not liable, in any event, for any consult- ing fees due after March, 1980, an i~sue severable from their liability, if any, for the consulting fees payable in February and March, 1980, we grant the defendants par- tial summary judgment to the extent that their liability cannot exceed the principal sum of $2,000, representing the consulting fees for February and March, 1980 (see Clifford Realty v. Dudcak, 72 A.D.2d 964, 422 N.Y.S.2d 260). The trial of this action should thus be confined to the date of ter- minetion of Kerner's agreement with Thomas. 96 A.D.2d 524 Thotaaz F. GREEN, et hi., Aopollante, Michael LO GRANDE, et nl~ etc. Respondents. Supreme Court, Appellate Division, Second Department. July 11, 1983. Article 78 proceeding was brought to review determination of town beard deny- ing application for special use permit to operate bar and grill. The Supreme Court, Special Term, Suffolk County, Stark, J., 464 NEW YORK SUPPLEMENT, 2d SERIES denied the petition, and petitioners appeal- ed. The Supreme Court, Appellate Divi- sion, held that town board's determination was not supported by substantial evidence. Reversed. 1. Zoning and Pluming ~=~4a5 Burden on applicant for special use per- mit, unlike heavy burden on one seeking to obtain variance, is light one, requiring only that he show that use is one contemplated by zoning ordinance subject to any condi- tion that may be deemed necessary to mini- mizo impact of use on surrounding area. 2. Zoning and Planning ~=~375 Administrative authority, bo it a town board or zoning board of appeals, is re. quired to grant special use permit unless reasonable grounds exist for its denial, for example, that use, although permitted, is not desirable at particular location. 3. Zoning and Plamdng ~378 Denial of special use permit may not be baaed upon general objection to special use or conclnsory findings that proposed use itself is undesirable. 4. Zoning sitd Planning ~=~645 Town board's determination denying application for special use permit to operate bar and grill was not supported by substan- tial evidence where late hour patronage and parking was characteristic of the business, area was predominantly business one, prem- ises had more than adequate parking facili- ties and strain on local traffic would bo less due to evening nature of bnsiness. Hamid Holtman, Huntington, for appel- lants. William E. Bennett, Islip (Francis J. Tier- ney, Islip, of ceu.nsel), for respondents. Before LAZER, J.p., and O'CONNOR, BROWN and RUBIN, JJ. MEMORANDUM BY THE COURT. In a preceeding pursuant to CPLR article 78 to review a determination of the Town Board of the Town of Islip denying peri- 78. Spec, i: tioners' application for a special use permit the deten. to operate a bar and grill, the petitioners to the tow appeal from a judgment of the Supreme ground th Court, Suffolk County, entered October 7, the findin. 1981, which denied the petition, ever adopt Judgment reversed, on the law, without town boa,- costs or disbursementz, petition granted, de- Pursuan termination annulled, and matter remitted town boar to the respondents for the purpo~ of issu- April 23, 1 ing the permit in accordance herewith, upon tion was such reasonable conditions az they may were statc deem appropriate. Pet/tion: The petitioners are the owners of proper- proceeding ty located in a Business I use district in the tion. Spt Town of Islip. In May, 1980, they applied finding th: for a special use permit to allow their les- was suppo sees to operate a bar and grill, a condition- We revc ally permit~-~d use, on the premises. Following consideration of the application [1-3] by the town planning board, a public hear- special ns~ ing was held on September 18, 19~0 before ognition tl the Town Beard of the Town of Islip at ted use in which a vote was taken denying the appli- mount'to cation. Thereafter, petitioners were in- mitted u~ formed that by resolution dated September ~ zoning pl~ 18, 1980 their application for a special use the ueighk permit had been denied for the following Steak Ho, reasons: Vii. of Th. "1. The use is characterized by late hour N.Y.S.2d patronage and parking, on the apl "2. Town policy has censistently granted on one ~-- permits for such uses only in larger shop- light one, ping centers or at locations otherwise the use is buffered from residences, ordinance "3. The propezed use, because of the tions that additional parking required beyond the ,,im~e the normal requirement for a permitted use ..rounding in a business district, represents a signifi- ' Corp. v. C cant intrusion on residences beyond that 8.2d 420, of a permitted use. 921, 422 "4. The proposed location has a high de- Biener v. gree of traffic congestion and an ec6dent ~85 A.D.2d ratio 40 percent above the crit/nal level, ministrativ according to the New York State Depart- ~ or a zonin: ment of Transportation. ; grant a si> "5. Numerous locations exist in the vi- grounds el cinity better suited to such an intensive .use, nitho. a partieu! Petitioners challenged this determination Dev. Corp. in a proceeding pursuant to CPLR artieJe ter of PI~ lip denying peti- pecial use permit i, the petitioners of the Supreme tered October 7, ition. · he law, without tion granted, de- matter remitted purpose of issu- : herewith, upon ~ as they may ::nets of proper- ~ district in the ~, they applied allow their les- ill, a condition- remisss. the application , a public hear- 18, 1980 before -wn of Islip at ying the appli- hers were in- :ted September r a special use the following ~1 by late hour ~tentiy granted in larger shop- ;OhS otherwise ~auee of the ~d beyond the permitted use ~ents a signifi- ~ beyond that has a high de- nd an accident critical level, State Depart- ;ist in the vi- ~ an intensive ~termination CPLR article GREEN v. LO GRANDE 78. Special Term (BRACKEN, J.), annulled the determination and remitted the matter to the town beard for a new hearing on the ground that there was no indication that the findings set forth in the reselutiqn were ever adopted by any of the members of the town board. Pursuant to Special Term's direction, the town beard held a new public hearing on April 23, 1981, following which the applica- tion was denied for the same reasons as were stated in the prior resolution. Petitioners then commenced the instant proceeding to review the new determina- tion. Special Term denied the petition, finding that the town board's determination was supported by substantial evidence. [1-3] Review of an application for a special use permit must begin with the rec- ognition that "It]he inclusion of the permit- ted u~e in the [zoning] ordinance is tanta- mount to a legislative finding that the per- mitted use is in harmony with the genera] zoning plan and will not adversely affect the neighborhood" (Matter of North Shore Steak House v. Board of Appeals of Inc. Vii. of Thomaston, 30 N.Y.2d 238, 243, 331 N.Y.S.2d 645, 282 N.E.2d 606). The burden on the applicant, unlike the heavy burden on one seeking to obtain a variance, is a liffht one, requiring only that he show that the use is one contemplated by the zoning ordinance subject, of course, to any condi- tions that may be deemed necessary to min- imize the impact of the use on the sur- rounding area (Matter o/ Carrel's Dev. Corp. v. Gil~on, 73 A.D.2d 1050, 425 N.Y. $.2d 420, affd. 53 N.Y.2d 813, 439 N.Y.S.2d 921, 422 N.E.2d 581; see, also, Matter of Biener v. Incorpomted Vii. of Thomasten, 85 A.D.2d 730, 445 N.Y.S.2d 808). The ad- ministrative authority, be it a town board or a zoning board of appeals, is required to grant a special use permit unless reasonable grounds exist for its denial, e.g., that the use, although permitted, is not desirable at a particular location (Matter of Carrel's Dev. Corp. v. Gibson, supra; see, also, Mat~ ter of Pleasant Val. Home Constr. v. Van Wagner, 41 N.Y.2d 1028, 395 N.Y.S.2d 631, 363 N.E.2d 1376; Matter of D & G Enter- talnment v. Rose, 86 A.D.2d 608, 446 N.Y. S.2d 107). Denial of a special uso permit may not be based upon general objections to the special use or eoncluzory findings that the proposed'use itself is undesirable (Matter of Pleasant Val. Home Constr. v. Van Wagner, supra; Matter of Scott v. Zoning Bd. of Appeals of Town of Salina, 88 A.D.2d 767, 451 N.Y.S.2d 499). [4] The record herein does not reveal the existence of reasonable grounds sup- ported by substantial evidence for denying the permit. The first reason set forth in the town board's resolution, that the use is characterized by late hour patronage and parking, amounts to an objection to the nature of the use itself. A restaurant and bar is a permitted use and since such a business by its very nature is characterized by late hour patronage and parking, this reason for denying the permit is meritless. It is tantamount to finding that a bar is an undesirable use, which conclusion runs con- trary to the zoning plan permitting such a use (Matter of North Shore Steak House v. Board of Appeals of Inc. Vii. of Thomaston, 30 N.Y.2d 238, 331 N.Y.S.2d 645, 282 N.E.2d 606 supra ). Nor does the record support the conclu- sion that the use is not sufficiently buffered. from residential lecations. In fact, the rec- ord reveals that the area is predominantly a business one, with only one private resi- dence within 200 feet of the proposed bar and grill. Likewise, as to the third and fourth con- clusions, the record indicates that the prem- ises has more than adequate parking facili- ties and further, since a significant proper- tion of the business traffic of the premises will more than likely occur in the evening, it will place less of a strain on the local traffic than would another use. Moreover, the traffic survey relied upon by the town board was out of date and the testimony submitted regarding more recent accidents at the adjoining intersection was not specif- ic as to whether those accidents occurred 464 NEW YORK SUPPLEMENT, 2d SERIES during the day or night. On this record, therefore, it cannot be said that there was subet~tial evidence to support the finding that the use would adversely affect traffic congestion in the area. Finally, there was no evidence in the record e~tablishlng the existence of numer. ous locations in the vicinity better suited to such use. Accordingly, we find that the town board's determination denying petitioners' application for a special use permit was not supported by substantial evidence and, therefore, Special Term erred in denying the petition. 96 A.D.2d 527 JENSEN ASSOCIATES, et aL, Jo~n MARTENS, RcopondenL Supreme Court, Appellate Division, Second Department. July 11, 1983. In an action, inter alia, for injunction, plaintiffs appealed from an order of the Supreme Court, Queens County, Lerner, J., which granted defendant's motion directing a change of venue. The Supreme Court, Appellate Division, held that Special Term properly exercised its discretion in directing that venue of action for injunction he changed to county in which previous action arising out of same controversy between parties was pending. ' Mfirmedo Special term properly exercised its dis- cretion in directing that venue of action for injunction he changed to county in which previous action arising out of same contro- versy between parties was pending. Jeseel Rothman, P.C., Mineola (Julian Ka- plan, Mineola, of counsel), for appellant~ Grutman Miller Greenspoon & Hendler, New York City (Dorm A. l~ndall and ¥ito C. Casoni, New York City, of counsel), for respondent. Before BRACKEN, J.p., and BROWN, NIEHOFF and BOYERS, JJ. MEMORANDUM BY THE COURT. In an action, inter aliz, for an injunction, plaintiffs appeal, ns limited by their brief, from so much of an order of the Supreme Court, Queens County, dated January 20, 1983, as, upon defendant's motion pursuant to CPLR 3211 (subd. iai, pars. 4, 7) to dismiss the action for failure to state a cause of action and on the ground that another acti~ was pending between the same parties for the same cause of action, granted that motion to the extent of direct- ing a change of venue of the action to New York County, without prejudice to an appli- cation by either party to move to consoli- date it with certain actions pending in New York County. Order affirmed insofar ns appealed from, with ccets. In June, 1982, the East 68th Street Ten- ants Corp. and several of its shareholders commenced an action against Jeusen Asoo- eiatce (hereinafter Jenecn) and FSB Proper- ties, Inc. (hereinafter FSB), the plaintiffs herein, in New York County. The tenants corporation accused Jensen and F~B of not honoring their agreement to make the mod- ifications necessary to obtain a tax abate- merit and a permanent certificate of eccu- panty for the building Jensen sold to the tenants corporation. By a counterclaim in- torpceed in the action, ns to which Jnan Martens, the defendant herein, and others were named ns additional parties, Jenson sought damages caused, inter ~/i~, by Mar- tens' alleged failure to comply with an agreement in which she granted Jeusen a~d FSB access to her co-operative aportment for the purpose of making alterations ~mi repairs neccesary to securing the certificate of occupancy and tax abatement. In July, 1982, Jensen and FSB moved for a preliminary injunction compelling Mar- tons tc Justice York t 22, 19~ could ~ money stanti~ mitted Paint denied junctio action, stunt ~ County tion r~ to her: York C of the County 1982, J tion, c; tion in: affront shoppir On moved prelimi cember approp~ and oN dar of Court,, then pr In th Marten~ Court, ~ suiting to do th merit hl ty actio the ton Eight trial of s~ ~.¥~ ~ss NOR'I'H I{HORE i~rK. HSE. v. BOARD OF APP. 645 ~ ~ ~i~y, the S~ Insuran~ Fund filed noti~ that it ~ n~ ~n~ve~ either claim. ~e~ w~, ~ ~ ~th claims, ~ment t~t they ~ out of and in the ~u~e of emplo~en~ '~ ~y--p~umably ~ ~ submitS, when available, In fact, the only - substantial evidence supported the Board's conclusion that these cases were not closed within the contemplation of section 25-a, and, there- fore, the Board's determination should not be disturbed. The order of the Appellate Division should be reversed and the &termination of the Board reinstated. FULD, C. J., and BURKE, SCILEPPI, BERGAN, BREITEL and GIBSON, JJ., concur. Order reversed, with costs, and the determination of the Workmen's Compensation Board reinstated. 80 N.Y.2d 288 ~ L~ ~ NORTH SHORE STEAK HOUSE, 1NC', Appellant, v. BOARD OF APPEALS OF the INCORPORATED VILLAGE OF THOMASTON et al, Respondent~ Court of Appeals of New York. March 24, 1972. from an order of the Supreme Court, Appellate Division, the Supreme Court at Special Term, Nassau Michael M. D'Auria, J., dismissing petition in Article 78 ~ wherein petitioner sought a judgment annulling a determi- of village Board of Appeals denying appIication for a special permit and a variance. The Court of Appeals, Burke, J., that denial of special exception permit on ground that extension ~rking area of restaurant, on a split zoned lot, 25 feet into a single residence district was not in harmony with general purpose and zoning plan, in that addition of parking spaces for 25 or 30 to be used primarily on weekends, would adversely affect values or greatly increase traffic in area, was inconsistent, 646 331 NEW YORK SUPPLEMENT, 2d SERIF,8 so N.Y,?.d ZMt arbitrary and capricious, and would be overturned, where uncon~re- vetted evidence established that granting of permit would have a beneficial impact by relieving traffic during peak dining hours, while preventing any spillback onto a heavily traveled boulevard by vehi- clea unable to enter front entrance of parking lot. Order modified to extent of reversing denial of special exception permit; remainder of order affirmed. Fact that property next to restaurant waa more valuable aa accessory parking for restaurant was insufficient to warrant a hard- ship variance to permit such parking, where property, located in a residential zone, could be reasonably employed for that use aa evi- denced by a proposed new house on an adjoining parcel. A "variance" is an authority to a property owner to use property in a manner forbidden by ordinance, while a "special exception'* allows property owner to put his property to a use expressly permitted by ordinance. ~e publication Words and Phrases for other judicial constructions and definitions. _a Zoning ~-271 Inclusion of a permitted use in an ordinance is tantamount to a legislative finding that permitted use is in harmony with general zoning plan and will not adversely affect neighborhood. 4. Zoning ~.~0~ Denial of special exception permit on ground that extension of parking area of restaurant, on a split zoned lot, 25 feet into a single family residence district was not in harmony with general purpose and intent of zoning plan, in that addition of parking spaces for 25 or a0 vehicles, to be used primarily on weekends, would adversely.affect property values or greatly increase traffic in area, was inconsistent, arbitrary and capricious, and would be overturned, where uncontro- verted evidence established that granting of permit would have a beneficial impact by relieving traffic during peak dining hours, while preventing any spillback onto a heavily traveled boulevard by vehlelea unable to enter front entrance of parking lot. Burden of proof on an applicant for a special exception permit ia mucl~ lighter than that required for hardship variance, az it does not require applicant to show that it h~ been denied any reasonable use of property but only that use is contemplated by ordinance subject 30 N.Y only surrou_ ..l_Cha: appell; Bru. _Lsu~ In ti Inc. (h: Appeal North: its par residen parkin_~ Nort| the nor the Viii is from on Nort_ depth o that th~ the lot i zoned f separat-~ used aa premia~ All ay blacktop made tw the seat spaces. addition~ In De~ man We pursuant "Sectic hearing, harmony addition; State of nance gi~. "(e) Wi the effect ~0 N.¥.~d 2~NORTH SHORE STK. HSE. v. BOARD OF APP. 647 only to conditions attached to its use to minimize its impact on surrounding area. _LChacles R. Van de Walle, New York City, and James Sawyer, for appellant. Bruce D. Mencher, for respondents. .~URKE, Judge. In this article 78 proceeding, appellant North Shore Steak House, Inc. (hereafter North Shore) seeks to review a decision of the Board of Appeals of the Village of Thomaston (hereafter the Board) denying North Shore's application for: (1) a special exception permit to extend it~ parking area, on its split zoned lot, 25 feet into a single-family residence district, and (2) a hardship variance permitting accessory parking on the residentially zoned property beyond the 25-foot strip. North Shore is the lessee of a plot of land used for a restaurant on the northwest corner of Northern Boulevard and Summer Street, in the Village of Thomaston in Great Neck, Long Island. The lease term is from May 1, 1961 to February 28, 2003. The premises front 181 feet on Northern Boulevard, a heavily traveled State highway, and have a depth of 286 feet along Summer Street. The zoning map provides that the Business "B" District has a depth of 200 feet and, therefore, the lot is split zoned, the rear 86 feet being in Residence "B" District zoned for single-family homes. The plot has been in single and separate ownership since 1908 and is improved with a main building, used as a restaurant since 1940, and an old stable, in the back of the premises, approximately 5 feet from the rear line. All available space within the 200 feet business district has been blacktopped for parking during the pa~t nine years. North Shore has made two small extensions to the main building which did not increase the ~eating capacity but did result in the lOSSlof several parking spaces. The restaurant has seats for 170 people at the tables and an additional 18 at the bar. At present, there are parking spaces for 75 to 85 cars. In December, 1969, North Shore, joined by the owner-lessor, Her- man Weinman, made an application for a special exception permit, pursuant to article X (§ 3) of the Zoning Ordinance, which states: "Section 3. They may in appropriate cases, after public notice and hearing, and subject to appropriate conditions and safeguards, and in harmony with the general purpose and intent of this ordinance, in addition to the powers and duties set forth in the Village Law of the State of New York and such powers as are heretofore in this ordi- nance given to them: "(e) Where a zone boundary line divides a lot in single ownership at the effective date of this ordinance affecting a use district, as the case 331 NEW YORK SUPPLEMENT, 2d SERIES so ~.Y.~ may be, permit a use authorized on either portion of such lot to extend to the entire lot, but not more than twenty-five (25) feet beyond the boundary line of the greater restricted zone." (emphasis supplied). In addition, the application sought a variance for the balance of the rear 86 feet beyond the 25-foot strip, except for a 50-foot by 100-foot plot on the northeast corner, to be improved with a new one-family houso fronting on Summer Street. In rejecting the application for a variance, the Board found, among others, that (1) the premises were not unique or different from other split zoned property in the village (2) that the hardship, if any, wa~ self-created (3) that the evidence that the variance would have an adverse effect on the adjoining property was not rebutted and (4) that a ratio of one car to every three or four seats is all that should be reasonably required. Based on these findings, the Board also conclud- ed, without any additional findings or conditions, that the special exceptions permit "would not be in harmony with the general purpose and intent of the zoning plan and scheme". Special Term, in sustaining the Board's determination, did so, not on the meriLs, but on the basis that a prior application by the owner-le~- zer in 1957 was res judicat~ in the absence of "changed circumstanc- es''. The majority in the Appellate Division did not rely on this rationale but cencluded that the record did not support the view that the residential portion of th_~roperty'could not be used for that purpose. In addition, citing Matter of Lemir Realty Corp. v. Larkin, 11 N.Y~2d 20, 226 N.Y.S.2d 374, 181 N.E:2d 407, it held there was a reasonable basis for the denial of the special exception permit. In hi~ di~nt, Justice Gulotta agreed with the majority with respect to the denial of the variance but determined that the denial of the special exception permit was arbitrary and capricious since the Board "erroneously applied the same test to the special exception applica- tion'' as that required for a hardship variance. [1] On this recerd, it cannot be said that the hard~hip variance was improperly denied. It was sought for accessory parking on the northwcet corner of the property (measuring approximately 61 feet by 81 feet) beyon.d the 25-foot special exception area and next to the 50-foot by 100-foot plot on the northeast corner on which the owner- lessor planned to erect a new, conforming one-family house fronting on Summer Street. North Shore's contention, no doubt true, that this plot is more valuable as accessory parking is insufficient to warrant a hardship variance since the property, located in a residential zone, may be reasonably employed for that use as evidenced by the proposed new hm N.Y. 71 N.Y.2d Forfeit findin~ tal diffe variance manner the prol~ the o~ir ~n~mo. h~ony the neig] pp. ~ 126, 174 A.D.~ 7 Cen~r v. ~rmit on the ~id: pu~ a (S~, gert [5] T~ ~it 5 (Ve~na, ~ op. cit, a~ it h~ ~ ~e u~ ~ at~ ~ No~h ~stffi~ ~ D~pi~ ~ zho~e o A ~f~t ~ ~ mo~ ~ up on problem ~ on No~he~ ~tw~ f I~, th The ~ ~ pr 30 N,Y.~d ~4~ , lot to extem{ ct beyond the ~is supplied). ,alance of the ot by 100-foot ~w one-family found, among ~t from other ,, if any, wa8 ould have an d and (4) that mt should be also conclud- t the special neral purpose did so, not on he owner-lea- circumstanc- rely on this the view that ]sed for that rp. v. Larkin, there was a ~ permit. · with respect denial of tbe ce the Board ,tion applica- variance was king on the ~ly 61 feet by next to the h the owner~ ,use fronting rue, that this to warrant a dential Zone, the proposed NORTH SHORE 8TK. HSE. v. BOARD OF APP. (]49 new hou~ on the adjoining pa~l (Mater of ~ v. S~inhil~r, ~2 N.Y. 71, ~ N.E.~ ~1; Mater of C~s ~ation v. B~ 4 N.Y.~ ~, ~, 172 N.Y.S.~ 1~, 1~, 149 N.E.~ ~, ~; Mater of Fo~t v. Eve~h~, 7 N.Y.~ ~6, 1~ N.Y.S.~ ~, 1~ N.E.~ ~1). [~] The denial of the s~cial ex~ption ~mit, b~ on f~ual findin~ u~ ~ sup~ denial of the vaHan~, i~or~ the fundamen-. ~1 diffe~n~ ~tween a v~an~ and a s~cial ex~ption ~it. A v~an~ is an authority ~ a pro~y owner ~ u~ p~y in a manner forbidden by the o~inan~ while a s~al ex~ption allows ~ the p~y owner to put his pm~y ~ a u~ exp~ly ~it~ by the o~inan~. The i~usion of the ~it~ use in the o~inan~ is ~n~mount W a lewslat~ve finding that the ~it~ u~ is in hamony with the general ~ning plan and. will not ~ve~ly aff~t the neigh~rh~ (2 ~thkopf, Law of ~mng and Planning, Ch. ~,// pp. ~; Mater of ~ v. Bo~ of S~s. & Ap~als, ~ N.Y. 126, 174 N.E. 301; Mater of Syos~t Holding ~. v. ~hlimm, 4 A.D.~ 7~, 1~ N.Y.S.~ 8~; Mater of Bar Har~ur Shopping Cen~r v. Andrews, ~ Mi~.~ ~4, 1~ N.Y.S.~ ~). Denial of the ~rmit on the ~und that the ex~nsion of the parking lot ~ f~t in~ the ~sidentia~ne is "not * * * in barony ~th the ~neml pu~ and in~nt of the ~ning plan" is, thus, pa~ntly in~nsis~nt. (S~, generally, 3 Ande~n, AmeH~n Law of ~ning, ~ 15.13.) [5] The burden of p~f on an appli~nt for a s~cial ex~ptio~. ~rmit is much ligh~r than that ~ui~ for a ha~ship va~an~J (Verona, Inc. v. West Caldwell, 49 N.J. 274, ~ A.~ ~1; Andes, op. cit, sups, ~ 1521). It d~ not r~ui~ the appli~nt ~ show tha$ it h~ ~n deni~ any ~onable u~ of the p~y but only that the u~ is ~n~mpla~ by the o~inan~ subject only ~ "~nditio~'.' at~h~ ~ i~ u~ ~ minimi~ i~ impact on the s~unding ~. No~h Sho~ h~ met that bu~en. The p~sident of No~h Sho~ ~stifi~ that ~ p~king spas a~ needed for employe~' ~. D~pi~ the emplo~ent of ~rking at~ndan~ at all times, a ~vem sho~ge of parking spa~ exis~ at ~ak dining ~H~ on w~kends. A ~-f~t by 81-f~t ex~nsion would ~mm~a~ app~xima~ly ~ ~ 30 mo~ ~. Bemuse of ~n~stion in the parking lot, ca~ ~nd ~ ~k up on Summer Street waiting ~ get in~ the parking a~a. This p~blem is fu~her ag~ava~d by the fact that a median w~ ins~ll~ on No,hem Bouleva~ th~ yea, a~ preventing t~ffic t~veling eastwa~ from tu~ing left in~ the driveway on No,hem Boulev~. Ins~ the ~fic must p~d ~ Summer St~t and make a left tu~, ~ding ~ the ~n~stion there. The ~'s ex~, Mr. ~u~r, ~n~ed that No~h Shorn h~ a p~king p~blem and the ms~urant n~s 1~ parking s~. He 331 NEW YORK SUPPLEMENT, 2d SERIES s0 N.V.$d ~44 admitted that there was an adjacent water tower, 80 feet to 100 feet tall, but declined to estimate the impact of the tower on residential values. In addition, he admitted that Briggs Auto Leasing had been issued a permit to extend a large parking area beyond the 200-foot business district on a plot less than two blocks from the restaurant and that the Methodist Church fronting on Northern Boulevard in the vicinity had parking well beyond the 200-fcot line without harm to anyone. He, nonetheless, concluded that granting the permit would adversely affect property values and generate more traffic on North- ern Boulevard. In view of the changes which have already taken place in the immediate area, there is no basis for the conclusion that the addition Al# of parking spaces for 25 or 30 cars, to be used primaril~n weekends, will adversely affect property values or greatly increase traffic in the area (Matter of Young Men's Christian Assn. v. Burns, 13 A.D.2d 1009, 1010, 216 N.Y.S.2d 716, 717). On the contrary, the uncontroverted evidence is that granting.of the permit will have a beneficial impact by relieving traffic on Summer Street during peak dining hours while preventing any spillback onto heavily traveled Northern Boulevard by cars traveling eastward and unable to enter the front entrance of the parking lot (Oursler v. Board of Zoning Appeals, 204 Md. 397, 104 A.2d 568). Nor does there appear to be any reasonable basis for the conclusion that the additional cars will increase noise or gas fumes in the immediate area, since North Shore has agreed to provide a 10-foot screen of shrubs or trees at the rear of the extension to protect the neighboring residences. Absent any support in the record for the conclusions advanced by the Board justifying the denial, and in view of "erroneous standard" used, namely that applicable to a hardship variance, the decision of the Board with respect to the special permit, must be deemed arbitrary and capricious (67 N.Y,lur., Zoning and Planning Laws, § 340; Matter of Lemir Realty Corp. v. Larkin, 11 N.Y.2d, at p. 25, 226 N.Y.S.2d, p. 377, 181 N.E.2d, p. 409). The argument, relied on by Special Term~ that a prior application was res judicata is not applicable. In 1957 the present owner mede an application for a use variance as well as a special exception permit for accessory parking in the residential zone. The application was denied and the denial sustained by Special Term. The denial was apparently on the basis ~hat the additional parking was available on the 200-foot business zone despite the owner's reluctance to disturb the lawn and trees then present. Since then substantial changes have occurred. The 200-foot business zone has been completely blacktopped for park- ing; Northern Boulevard, a State highway, has been widenedeliminat- ing on-street parking, previously-permitted, as well as adding a median strip making it impossible for eastbound traffic to enter the As die ~on F GIB 0 injuri~ Court, menta Appell- plaintif evidenc patron~ vide ha :RIES so N.¥.~d 244 ;0 feet to 100 feet .."er on residential Leasing had been yond the 200-foot ,m the restaurant , Boulevard in the without harm to the permit would traffic on North- ken place in the that the addition rilY_L~n weekends, _~ase traffic in the ~s, 13 A.D.2d 1009, ,e uncontroverted beneficial impact ;ining hours while rthern Boulevard front entrance of ,204 Md. 39?, 104 able basis for the e or gas fumes in provide a 10-foot on to protect the ~e record for the :nial, and in view · le to a hardship he special permit, Jur., Zoning and ,rp. v. Larkin, 11 prior application ,t owner made an eption permit fol. -~tion was denied :1 was apparently e on the 200-four ~rb the lawn s have oceurred~ topped for park- :.~idened eliminat. ell as adding ffic to enter the ORLICK v. GRANIT HOTI~L & COUNTRY CLUB 651 30 N.Y.2d 246 Cite al parking lot from the front entrance. Substantial changes have also occurred in neighboring parcels in which parking has been extended into the residential area from the business zone. In sum, North Shore has advanced sufficient proof of compliance with the ordinance justifying issuance of the-special permit by the Board. The testimony of North Shore is virtually~uncontroverted. As a result it would appear there is no room for the exereise of discretion on the part of the Board and no purpose would be served by · remanding the matter for further hearings. Accordingly the order of the Appellate Division should be modified to the extent of reversing the denial of the special exception permit and directing the Board to issue the permit subject to any reasonable conditions it deems appropriate and the remainder of the order insofar as it denied the application for a use variance should be affirmed. FULD, C. J., and SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON, JJ., concur. Ordered accordingly. 30 N.Y.PA 246 .j_Samh ORLICK et al, Appellants, v. GRANIT HOTEL & COUNTRy CLUB et al., ]b~pondent& Court of Appeals of New York. March 24, 1972. Negligence action against hotel and others to recover damages for injuries hotel patron sustained in fall on stairway.~ The Supreme Court, Trial Term, Kings County, Frank J. Pino, J., rendered judg- ments for defendants, and plaintiffs appealod. The Supreme Court, Appellate Division, 35 A.D.2d 998, 318 N.Y.S.2d 80, affirmed, and plaintiff appealod. The Court of Appeals, Burke, J., held that scanty - evidenee of no prior accidents on stairway in corridor leading to patron's room in four years in which hotel had been in operation was not conclusive on issue of whether hotel had been negligent in construing and maintaining corridor and stairway by failing to pro- vide handrail and by furnishing carpeting of the same design and 440 NEW YORK SUPPLEMENT, 2d SERIES ~1 A.D.2d 985 In the Matter of NORTH SHORE EQUITIES, INC. Petitioner, Clmr~ B. FR1TTS et aL, Constituting the Zominw Board of Appeals of the Tm of Bethlehem, Raspondent~ Supreme Court, Appellate Division, Third Department. May 28, 1981. In Article 78 proceeding transferred by order of the Supreme Court, Special Term, Albany County, developer corporation · sought review of denial by zoning board of appeals of developer corporation's applica- tion for & special exception to city zoning ordinance. The Supreme Court, Appellate Division, held that there was no substantial evidenco to support zoning board of ap- peals' denial of developer corporation's ap- plication, Determination annulled, application g~anted with directions. 1. Zoning and Planning ~481, 490 specml exception b a u~ exp~ly ~i~ by o~i~n~; i~ inclusion b ~n- ~m~nt ~ a fi~g t~t ~e ~it~ u~ ~ m ~ony ~ ~e ~ne~l ~ning and ~1 not ~ve~ly ~f~ the neigh~rh~. ~ P~ W~ ~ ~a~ Zn ~w of ~mpl~ by ~Yelo~ ~r- sewer and drainage requirements, there .was no substantial evidence to support find- rags by zoning board of appeals in denying. corporation's application for special exo~p- tion. 3. Zoning and Planning ~489 A mere general objection by an adj,- cent landowner ia not sufficient to justify a denial of a special exception to & zoning ordinance. Schrade & Kimmey, Albany (liar] H. Schrade, Albany, of ecuasal), for petitioner. Donald D. DeAngelis! Delmar, for mapon- dents. Before MAHONEY, p. j., and SWEF_, NEY, KANE, CASEY and WEISS, JJ. MEMORANDUM DECISION. Proceeding pursu,~nt to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of respondent denying a special exception. Petitioner is a wholly owned subsldlary of Guardian Federal Savings and Loan A~ ation and owns a 7.8-acre tract of ]and on Feura Bush Road in the Town of Bethle- hem. The zoning districts in question am designated as Bealdeane "A' and Retail Commercial District '~,C'. Artiels V of the Bethlehem zoning ordinanco provides that a four-family apartment building is n permit* ted uee in both zones if a special exeaption is granted by the Zoning Board of Appe~ In den found tim ous ~ght Feura B.: ~oi~K v~ue ~ w~f~ w ia ~an ly de~ ~nt d ~tlo~. · e buildin ~d ~ qni~n~ of ~ ~w vilue of ~ app~ would ~ i, of~ ~j~t ~ ~o~ He ~t ~ s~dy of ~ ~in ~ ~a of~ T~ ~ ~n ~ poration with special exception to city zon- Pursuant to this article, petitioner applied no lng ordinance, which provides that a four- to respondent for a special exception in '5 experts t~m family apartment building ia a permitted order to build 15 buildings, each con ' ' use in both residence and retai commercio' · ........ -- ~ BI and conte~ · . . . . ,~ ,our apa~ments w~th two bedrooms each. · dmtrict zones If a speciarexcoptlon ia grant- After o ~.k,: ..... _ l~ mendous u: ed b ' - I, uo.~ nearing, raspomlent . y the zoning board of appeals, and in a resol-,: .............. ~ l~ aluM. ~.ou ansones of pceof offered to ~-,-- -~ ~,o,, cuntaumng ira nnamgs of rant . ll~ character o, o ,~-~vene umt and conclusions of law which ' or developer co'*"'--tion ........ denied the ~ tered. wno testified that buildin,-* ^~ ,~ ...... ~ .-~- , apcclal exception. 'rne permitted ,' ..... ao ~- ,-~ ,ype instant article 78 proceeding was then com- and which~ra;~u;h ;~peCp~iex~p~~ menced and Specilg Term transferred the · - application to this court nurausat m am.D me ordianr woula meet all lot restrictions, setbacks and 7804 (sub& [g]). ~-----' ~ l~*; to a findip-- - (K~ H. petitio~r. for reopen- qd SWEE- ;EISS, Jj. ; article 78 ~or of the entered in ermination exception. ,baldiiry of of Bethio- · e~fion ~ io Vof the M~ that · exception ~ applied eeption in centaininw ams each. .t adopted ~ of fact :eniod the then eom- to CPLR TOWN OF CLIFTON PARK v. RIVERCRI~T SEWERAGE In denyi~ the application, the bo~rd fOumi tlmt the ~fe ~ity a~ ~ on ~m B~ ~ ~ ~y qui~ h~vy ~ ~ a~ "ally ~n~". ~ ~ ~ f~nd ~at ~e ~ ~ ~ "h"~usly cl~" ~ the m~ ~M wh~h would ~u~ ~- ~ ~ ~ for en~ on~ F~ Bnsh ~. It fu~her fou~ that ~ ~ w~ld ~ i~i~ in ~1~ ~ t~t ~ ~bllc ~nvenien~ and ~m w~id ~ ~ ~t~ly ~ ~iy, R ~ t~t t~ si~, ~ ~ ~on of ~ ~j~ w~ld ~ot i~ ~ny ~ ~ a~p~a~ a~ o~e~ ly ~l~ment ~ ~e nei~r~ and ~nt di~. ~ ~ ~ ~at at the h~ng ~ ~ ~tn~ ~t~ on ~half of ~o~. A ~vil en~n~r ~tifi~ the buildln~ would m~t all lot ~etions ~d ~ and ~wor and d~ina~ ~ qut~n~ and t~t t~ char and of the develop~nt would not det~t f~m t~ ~ly d~eiopment of or impair the a~ ~tifi~ that the su~i~sion w~ld ~ ~ ~ony ~th the development ~ ~ ~ ~d n~ im~r the value of ~nt land. ~ ~t ex~ w~ a p~- f~io~l ~ ~ial~nE in t~ns~r- ~o~ He ~fi~, in~l~a, that pu~u- ant ~ ~ studi~ and his own ph~i~l study of t~ ~fi~ th~ would ~ no ~ t~ a l~ in~ in ~ffic which ~thtn ~ no~ ~ly and hourly fluctua- tion of ~fic. ~ ~nt ~ owne~ voi~ ~n ~ ~e pm~ p~j~t but p~u~ ~ ~. ~ey qu~tion~ the v~ous ~ ~tif~ng on ~lf of ~ti~oner ~ ~nd~ t~t ~ would ~ a ~ ~ in~ in ~fic; t~t p~y valu~ w~M ~ im~; and t~t the ~ of the nei~rh~ would ~ [1~] ln2iafly, we ~ that a s~al ~n ~ a ~ ex~ly ~it~ by ~ ~. I~ i~l~on is ~n~mount ~ a timing t~t t~ ~it~ u~ is in ~ny ~th t~ ~neml ~ninR plan and will not edver~qy affect the m~ighbo~aeod (Matter of North Shoee S~k H~ ~. ~ of A~8 off I~ Vii. off ~m~, ~ N.Y.~ ~, ~, ~1 N.Y.8.~ ~, ~ N.E.~ ~). ~m ~r exami~ of ~ ~, we ~ of t~ ~ t~t ~tio~r ~mpli~ with the s~nd~ outli~ in t~ o~inan~. ~m, ~e~ ~ ~ P~f ~fe~ ~ ~n~vem ~t of ~ tione~s th~ ex~ ~mly, ~ is not su~n~l e~ ~ ~ ~ s~n~nt*8 finding. A ~ ~ ~ tion by the ~nt la~ oM b ~t suffi~ent ~ justly a ~nhl (Mo~ off Tandem Holding ~. v. ~ of ~ Ap~Mz of ~o~ of He~, ~ ~1, ~, ~ N.Y.8.~ ~, ~ N.E.~ ~ T~m must ~ an annul~nL ~ination annulS, ~t ~ ~titioner's appli~tion ~n~, a~ dent is di~ ~ i~ue t~ ~ ex~ tion subj~t ~ any ~ble m~it~m it d~ms appmpHa~. 81 A.D.2d 982 TOWN OF CLIFTON PARK, RIVERCREST SEWERAGE DISPOSAL CORPORATION et aL, l~t~ Supreme Court, Apl~llate Division, Third Department. May 28, 1981. Town brought action against eorpora- tion, which had opemtod sewage dlsp~ml service for homes in a subdivision for ovor ten years, when corporation dbeontinued its operation of the system. The Supreme Court, ~arato~ County, Amyot, J., I~rtiol- ly granted defendants' motion for 8umnmry judgment. Appeal was taken. The preme Court, Appellate Division, held that: 402 NEW YORK SUPPLEMENT, 2d SERIES ,la N.Y.~I 7~ 1. Arrest ~=~63.1 Police officers were warranted in mak- ing inquiry based upon their observations and defendant's furtive movements and did not act unreasonably in focusing their in- quiry on contents of defendant's hand and in asking that defendant remove a bottle which concealed a glassine envelope in his palm as they approached. 2. Arrest ~:'7L1(8) Removal of bag of heroin from defend- ant's pocket was reasonably contemporane- ous with defendant's arrest for possession of herein previously found in his hand as police officers made reasonable inquiry of defendant upon observing his furtive move- merits. 528). Accordingly, the trial court could have properly concluded that the motion to suppress the evidence should have been de- hied. BREITEL, C. J., and JASEN, GABRIEL- LI, JONES, WACHTLER, FUCHSBERG and COOKE, JJ., concur. Order reversed, the conviction reinstated and the case ~itted to the Appellate Divi- sion, First Department, for further proceed- ings in accordance with the memorandum herein. _l_Robert M. Morgenthau, DiS~. Atty. (Su- san K. Wasserman, Peter L. Zimreth and Robert M. Pitier, New York City, of coun- sel), for appellant. Hal R. Lieberman and William E. Heller- stein, New York City, for respondent. OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be reversed, the conviction reinstat- ed, and the case remitted to the Appellate Division for review of the facts. [1, 2] The observations made by the po- lice and the defendant's furtive movements as the police appreached were sufficient to warrant inquiry (People v. De Bout, 40 N.Y~2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562). Under the circumstances we cannot say that it was unreasonable for the offi- cere to focus their inquiry on the contents of the defendant's hand and therefore to ask that he remove the-bottle which he held as they appreached. Removal of the bag of herein from the defendant's pocket was rea- zonably contemporaneous with his arrest for possession of the heroin previously found in his hand (People w. Evans, 43 N.Y.2d 160, 4~0 N.Y.S.2d 810, 371 N.E.2d 3~3 N.E.2d 282 43 N.Y.2d 801 _l_In the Matter of TANDEM HOLDING CORP. Reapondent, BOARD OF ZONING APPEALS OF the TOWN OF HEMPSTEAD, Appellant Court of Appeals of New York. Dec. 19, 1977. Appeal was taken from an order of the Supreme Court, Appellate Division, Second Department, 53 A.D.2d 697, 385 N.Y.S,2d 119, affirming a judgment of the Supreme Court, Nassau County, William J. Sullivan, J., annulling a determination of a town's board of zoning appeals denying an applice. tion for a special exception to permit cotab- lishment of a packing field in a residential district. The Court of Appeals held the board's determination that a special ex- caption should not be granted was sup- ported by the record. Order of Appellate Division reversed and determination of board of zoning ap- peals reinstated. TAN! 4~ N.Y.20 802 Zoning Board ofzc application l~rmit developrc in residential shopping center alter character I~nd increase tra Entitlement of right; ~ance guiding c i~' Standards g- Zx~eptions may logical as to alk ~ of zoning I; 'W. Kenneth C 8~ne Kirby Fer. O~nsel), for apl: ~cVincent J. De ~pondent. ~,~i ' OPINIOI ~ E . ~M MORAND .Order of the, Costs, and of Zonin~ The detei app threugh th is suf There; a private p: tbuttlng business , the charac POunding resider and incr- trial court eo~ hat the motion uld have been d~. detion reinstat~ c Appellate D~vj~ further proee~ :e memorandu~ :M HOLDING'; ent, s, Appell~nt~ ew York. n order of the vision, Second 385 N.Y.S.2d the Supreme m J. Sullivan, , of a town's ig an applica~ permit estab, a residential als held . a special ex- ed was sup. ion revered f zoning ap- TANDEM HOLDING CORP. v. BOARD OF ZONING APPEALS ~89 43 N.Y.2d 802 cae ill 1. Zoning Board of zoning appeals properly de- nied application for special exception te permit development of private parking lot in residential district abutting proposed shopping conter in business district on proof that development of lot would significantly alter character and quality of surrounding residential area, diminish property values and increase traffic congestion. ~. Zoninf ~:~488 Entitlement to special exception is not matter of right; stated standards in ordi- nanco guiding consideration of spacia] ex- coption applications must be complied with before any exception can be secured. ~ Zoning ~=~485 Standards governing i~nanee of special exceptions may not be so general or taute- logical as to allow unchecked discretion on p~rt of zoning board. W. Kenneth Chave, Jr., Town Atty. (Eu- gene Kirby Ferencik, Asst. Town Atty., of counsel), for appellant. Vincent J. De Rosa, New York City, for respondent. OPINION OF THE COURT MEMORANDUM. Order of the Appellate Division reversed, with co~ts, and the determination of the Board of Zoning Appeals reinstated. [1] The determination of the board, that petitioner's application did not nor could not, through the imposition of reasonable conditions, meet the standards in the ordi- nance governing thelgranting of special ex- coptions, is sufficiently supported in the record. There was proof that development of a private parking lot in a residential district abutting a proposed shopping center in a business district would significantly alter the character and quality of the sur- rounding residential area, diminish property values, and increase traffic congestion. Of course, characterization of a parking lot as a special use or exception permitted with board approval precludes the board from arbitrarily denying applications, and denial solely because there is a general ob- jection to the special u~e or exception would be arbitrary (Matter of Pleasant VM. Home Constr. w. Van W~B~er, 41 N.Y.2d 1028, 395 N.Y.S.2d 631, 363 N.E.2d 1376, see Matter of North Shore Steak House v. Board of Appeals of ln~ Vii. of Thomaston, 30 N.Y.2d 238, 243-245, 331 N.Y.S.2d 645, 648- 650, 282 N.E.2d 606, 606-609): It does not follow, however, that requests for special exceptions must always bo granted subject only to the imposition of reasonable condi- tions. [2] Entitlement to a special excoption is not a matter of fight (Matter of Lemir Realty Corp. v. Larkin, 11 N.Y.2d 20, 24, 226 N.Y.S.2d 374, 376, 181 N.E.PA The stated standards in the ordinance guid- ing the board's consideration of special ex- ception applications condition availability of a special exception, and compliance with those standards most be shown before any exesption can be secured (e. g., Matter of Mobil Oil Corp. v. Oaks, 55 A.D.PA 809, 390 N.Y.S.2d 276; Matter of C & G Developers v. Granite, 53 A.D.2d 612, 384 N.Y.S.2d 844; Matter of Klein v. Seigel, 47 A.D.2d 924, 367 N.Y.S.2d 58; see 2 Anderson, New York Zoning Law and Practice [2d ed.], § 19.01; 2 Rathkopf, Law of Zoning and Planning, pp. 54-1--54-30; see, also, ALI, Model Land Development Code, § 2-207, sub& [2]). In the North Shore case (supra), reso- lution of the problem was both simpler and dil'ferent from this ease only because the ordinance there involved stated no elaborat- ed standards. [3] One caveat is appropriate. Stan- dards governing issuance of special excep- tions may not be so general or tautological as to allow unchecked discretion on the part of the zoning board (see 2 Anderson, New York Zoning Law and Practice [2d ed.], § 19.11; 2 Rathkopf, Law of Zoning and Planning, pp. 54-14--54~30). No such in- 402 NEW YORK SUPPLEMENT, 2d SERIES 4~ N.¥~d SO~ firmity has been demonstrated to exist in the instant ordinance. BREITEL, C. J., and JASEN, GABRIEL- LI, JONES, WACHTLER,' FUCHSBERG and COOKE, JJ., concur in memorandum. Order reversed, etc. 373 N.E.2d 284 43 N.Y.2d 803 .l.The PEOPLE of the State of New York, Respondent, John MeGRATII, Appellant, Court of Appeals of New York. Dee. 19, 1977. Defendant appealed from the action of the Supreme Court, Appellate Division, Second Department, 53 A.D.2d 810, 384 N.Y.S~d 714, affirming a judgment of the Supreme Court, Queens County, Leo Brown, J., resentencing him pursuant to People v. Montl, omery following his guilty plea to charges of robbery in the third degree. The Court of Appeals held that defendant presented no grounds for having guilty plea set aside. Affirmed. Crimia~i ,L~w ~,274(3) Defendant was' not entitled to have his guilty plea to charges of robbery set as/de on any grounds advanced by him, including contention that he was not advised in ad- vance of pleading guilty that conviction would provide predicate for more seve~.~ sentence if he ever committed another felo- ny. Donald H. Zuckerman and William E, Hellerstein, New York City, for appellant. John J. Santucei, Dist. Atty. (William G. Schrager, Kew Gardens, of counsel), for respondent. OPINION OF THE COURT MEMORANDUM. Order of the Appellate Division affirmed. Defendant pleaded guilty to robbery in the third degree in 1949, and has long ago served the indefinite sentence then posed. He is able to appeal by virtue of resentence obtained under the rule in Peo- pie v. Mont$~'omery, 24 N.Y.2d 130, 299 N.Y. S.2d 156, 247 N.E.2d 130. He offers a me- lange of arguments hased on State and Federal cases in which guilty pleas have been set selde. His guilty plea falls within none .of the several precedents relied upon. Defendant was represented by counsel at all times. He had had prior criminal court experience, inclading~hat of pleading guilty. In the several motions he has made in the nature of coram nobis he has been uniformly un- succeesful. The cxime with which he was charged, robbery in the second degree, and the lesser crime of robbery in the third degree to which he pleaded guilty, consist of simple elements understandable for pleading purposes by laymen in every mate- rial way. At the time of the plea there was no assertion or intimation casting doubt on defendant's guilt of the crime charged. Most novel and ironic is the contention, among others offered by defendant, that he was not advised in advance of pleading guilty that the 1949 conviction would pro- vide a predicate for a more severe sentence if he ever would, as indeed he did, commit another felony, for which he was sentenced in 1954. The rules set forth in People v. Nixon are applicable (21 N.Y.2d 338, 350, ~6, 287 N.Y.S.2d 659, 670-671, 234 N.E.2d 687, 695, cert. den. 393 U.S. 1067, 89 S.Ct. 721, 21 L.Ed,2d 709).. BREITE LI, JONE: ·nd COOK Order af Defen. Coo / a felony, ~ and affirw late Divial 879, 890 } peals held mitred in: by police arrest. Affi~ Whet- lng after and offi~ from def, pursuit le-- vation of Bhotgun t'.. ed unqu~- fendant's incident t 176 470 NEW YORK SUPPLEMENT, 2d SERIES dismissed the complaint because the requi- site hostility was lacking. [2-4] It has long been the rule that the possession by a tenant of lands adjoining the demised premises is to be considered the po~eseinn of the landlord and Cannot b~ adverse to the landlord's interests. Such nonedvereity continues for a statut~ ry period after the end of the tenancy as a rebuttable presumption (Whiting v. Ed- rounds, 94 N.Y. 309). RPAPL 531 now codifies this rule. The result of this rule is that a tenant may acquire a permanent interest in adjacent lands belonging to third persons for use with the leased property which will enure to the tenant's benefit during the tenancy. However, on its expi- ration, the land so acquired appertains to the landlord (Donpseg p. Kipp, 61 N.Y. 462, 470). The same principle has been held appliCable to adjacent lands owned by the landlord of a tenant who takes posses- sion of those lands (see Bcdlow v. New York Floating Dry Dock Co., 112 N.Y. 263, 282-283, 19 N.E. 800). Plaintiff is thus precluded from showing that he has taken title by adverse possession to land .adjacent to his tenancy because his interest ~s, as a matter of law, regarded as not hostile to that of his landlord. Moreover, plaintiff and his father, in building a gar- den on undeveloped land near a railroad track, were not performing any act that contradicted the interests of the landlord. Such a compatible use also negates the required hostility (see C,e~v/tz v. Gs/so- mi~ 69 A.D.2d 992, 416 N.Y.S.2d 127). [$, 6]' Plaintiff's father was shown to have had the disputed land within his pur- view as a watchman and it therefore ap- pears that his entry onto the land was by Permission. Such Permission is l~rseumed to continue until the contra.ry, appears (Leu, is v. N~v York a~l Harl,~,n R.R. Co., 162 N.Y. ~02, 220, 56 N.E. 540). Here, there is no evidence of a distinct assertion of right hostile to the owner during the statutory Period required to obtain title by adverse possession and it must be eonchid- ed that possession was permissive (Hinklq/ v. State of New York, 234 N.Y. 309, 317, 137 N.E. 599; Ru~-Bohm Post No. 441, Amer. Legion of lslip v. Islip Enterprise, 5 A.D.2d 774, 170 N.Y.S.2d 23, affd. 5 N.Y.2d 856, 181 N.Y.S.2d 796, 155 N.E.2d 676). 99 A.D.2d 469 In the Matter of SAL DE ENTERPRIS. ES, INC., et al., RespOmients, TOWN OF ISLIP., et al., Appellants. Supreme Court, Appellate Division, Second Department~ Jan. 3, 1984. In Article 78 proceeding, appeal was taken from judgment of the Supreme Court, Suffolk County, Corso, J., which an- hulled determination of town board deny. ing application for special use permit to serve food and beverages at an establish- ment. The Supreme Court, Appellate Divi- sion, held that the trial court properly con- .claded that appliCants demonstrated a will- ingness to comply with conditions imposed to minimize impact of use and that town beard's determination failed to offer a sound reason for denying application; how- ever, in directing town beard to issue a permit, trial court should have also directed that it be issued subject to reasonable con- ditions designed to minimize anticipated im pact. ' Judgment modified and as modified fh~ned. 1. Zoning and Planning ~375 Generally, special use Permit should be issued once applicant demonstrates a will ingness to comply w/th restrictive cove- nants imposed to minimize impact of use on surrounding area. :~ ~oning ami p~ Trial court p, plicants for asp atrated a willingn tious imposed to. surrounding area -~n~ beard did · rosann for deaying · directing the towr trial court should be issued subject ~lesigned to mini~ William R. /lena (Guy W. Germano, lip, of counsel), for Patrick Kevin B~ (Patricia S. Muhlre couneel), for respom Before TITONE, O'CONNOR and BR MEMORANDUM In a proceeding pm 78, the appeal is fro ,Supreme Court, Suf October 5, 1983, whk nation of the Town , tioners' application fo to serve food and bev llahment, and granted Judgment modified after the words "[ap; to issue a special uae ing: "with reasonabl: thereo~ and". As so affirmed, without cos~ Appellants are directe able conditions and isa mit within 15 days aftc of a copy of the order with notice of antry. ~ In early 1983, petiti music hall known aa "! 145 Sunrise Highway, York. Prior to that ~ were run by a corporati, use permit to operate · 8O9, 8I?, t No../M1, :~terprize, 3, affd. $ 55 N.E.2d lSRPRIS. ilts, ~llants. ~/sion, · peal wu Supreme which an- _rd deny- ,ermit to establish- late Divi- ,erly con- _ed a will- imposed hat town offer a on; how- ) directed able con- ,ated ira* Jif]ed al- hould be a will- use on SAL DE ENTERPRISES, INC. v. TOWN OF ISLIP Cite as 470 N,Y,S.2d 176 (A.D, 2DepL 19~4) 2. Zoning and Planning ~:~645, 721 Trial court properly concluded that ap- plicants for a special use permit demon- strated a willingness to comply with condi- tions imposed to minimize impact of use on surrounding area and that determination of town hoard did not fail to offer sound reason for denying application; however, in directing the town board to issue permit, trial court should have also directed that it be issued subject to ressonable conditions designed to minimize anticipated impact. William R. Bennett, Town Atty., Islip (Guy W. Germnno, Deputy Town Atty., Is- lip, of counsel), for appellants. Patrick Kevin Bresnahan; Jr., Babylon (Patricia S. Muhlrad, New York City, of couuse]), for respondents. Before TITONE, J.P., and MANGANO, O'CONNOR and BROWN, JJ. MEMORANDUM BY THE COURT. In a proceeding pursuant to CPLR article 78, the appeal is from a judgment of the Supreme Court, Suffolk County, entered October 5, 1983, which annulled a determi- nation of the Town of Islip denying peri- tioners' application for a special use permit to serve food and beverages in their estab- lishment, and granted the application. Judgment modified by adding thereto, after the words "[appellants] are directed to issue a special use permit", the follow- lng: "with reasonable conditions imposed thereon and". As so medif]ed, judgment afFu*med, without costs or disbursements. Appellants are directed to impose reason- able conditions and issue a special use per- mit within 15 days after service upon them of a copy of the order to be made hereon, with notice of entry. In early 1983, petitioners opened up a .music hall known as "Key Largo" at 134- 145 Sunrise Highway, West Islip, New York. Prior to that time, the premises were run by a corporation holding a special use permit to operate the premises as a 177 discotheque known as "Hammerheads". The permit was revoked based on violations of restrictions in the permit (cf. Matter of Aprile v. Lo Grande, 89 A.D.2d 563, 452 N.Y.S.2d 104). The property in issue is zoned "Business I" under section 68-2'/! of the Code of the Town of Islip and as such requires a special permit in order to serve food or beverages. In March, 1983, petitioners filed an applies- tion for a special use permit to operate the premises as a community hall/dance- hall/har/taveru/dizcotheque for up to 1,500 persons. After a hearing, the Town Board of the Town of Islip denied tim appli- cation ~md issued written findings in sup- port thereof. Petitioners thereafter com- menced this proceeding seeking ~view of that determination. The trial court grant- ed petitioners' application, annulled the town board's determination, and directed appellants to issue a special use permit to petitioners. [1, 2] A special use permit contemplates a use expressly permitted by a particular zoning ordinance. Generally, such a per- mit should be issued once an applicant dem- onstrates a willingness to comply with re- strictive convenants imposed to minimize the impact of the use on the surrounding area (Matter of Peter Pan Games of Bay- side v. Board of Estimate of Cirri of N.Y., 67 A.D.2d 925, 413 N.Y.S.PA 164; Mobil Oil. Corp. v. City of Syracues, 52 A.D.2d 731, 381 N.Y.S.2d 924). The trial court properly concluded that petitioners demonstrated a willingness to comply with such conditions and that appellants' determination failed to offer a sound reason for denying the appli- cation. However, in directing appellants to issue the permit, the court should have also directed that it be issued subject to reason- able conditions designed to minimize the anticipated impact. In view of the delay herein and the re- suiting prejudice to petitioners, appellants are directed to impose any reasonable con- ditions they deem appropriate within the time specified. "2~ For the purp~e~ of subdivision one of this section, a criminal action or proceeding against a person shall be con- sidered terminated in favor of such per- -(a) an order dismissing the entire aecu- satery instrument against such person pursuant to article four hundred seventy was entered; or (b) an order W dismiss the entire accu- astory instrument against such person,, pursuant to section 170.30 (Emphasis supplied.) According to J~eph W. Bellacesa in his 1977 ~upplementary Practice Commentary 's Book 11A, CPL (McKmney Consol. Laws, § 160.50 [Cum. Sup. 1979~80] P. 32'/), these sections were amended "to remove an ambi- guity and to make absolutely clear that sealing and return o~ders are issuable only when the dismi~al or termination is of the en~re accusatorY instrument." (Accord: State Executive Committee Memorandum, Accompanying 1977 Act, McKinney's 19q7 Se~ion Laws of New York, 2453). The 1977 amendments to 160.50 were made effective August 11, 1977 and were operative on all the dates involved in this matter. Thus, no matter how well inten- tioned his purlx~e, or how seflnd his ~rgu- meat~ for granting the benefits of CPL 160.50 in "plea down" cases, the statute did not provide the authority for Judge Beck- er's order since it is clear that there was not a dismi~l of the entire accuastorY instru- ment. In one reported 1978 case, which specifi- cally considered the effect of the 1977 amendments on "plea down" situations, it was held: "Now there can be no doubt that the entire accucatery instrument must be dismissed in order to have a favorable ter- mination. A pins to any-charge contained therein, or added thereW, does not tall within the purview ot CPL 160.~0 (Empha- sis in original)." (People v. Ebner, 95 Mise.2d 781, 408 N.Y.S.2d 234, Criminal Court of the City of New York, Queens Co.,. Galfunt, J. [1978]; aisc, see In re Vergar{ (Fried), supra ). Perhaps, Judge Becker's opinion will pro- vide the nece~ary impetus and persuaston 423 NEW YORK SuPpLEMENT, 2d SERIES for the Legislature to consider a further amendment to CPL 160.50, to provide its benefits in "plea down" situations. In the meantime, however, it is clear that CPL 160.50 does not now provide its benefits in "plea down" situations such as intervenor respondent Robertson's and Judge Becker exceeded his authority in issuing the order of February 1, 1979. Accordingly, the petition is granted in all respects and Judge Becker is prohibited from ordering the return of intervenor-re- spendent Robertson's fingerprints, palm- prints and photographs, and from ordering any change in the arrest and conviction records to reflect an arrest and conviction on the charge of Disorderly Conduct, a vio- lation, rather than an arrest on the charge of Criminal po.~e~ion of Stolen Property in the Third Degree, a misdemeanor. The crew-motion of respondent Becker to dismiss is denied. The motions by interve- nor-respondent Robertson to intervene and for related relief are granted and the cro~- claim to compel respondent Becker to order the sealing of the records is dismissed. 102 Misc.2d 320 Avl ZUBLI and Yvette Zubli, his wife, plaintiff~, coMMUNITY MAINSTREAMING ASSO- CIATES, INC., Ica Carroll, Sadie It. C~v- mil, his wife. Thomas Coughlin, 111, as Commissioner of the State of New York Office of Mental Retardation and Devel- opmental Dinabillties and Eastern Fed- ecal Savings and Loan Association of S~yville, Defendant~ Supreme Court, Special Term, Nassau County, Part I. Dec. 11, 1979. Owners of property adjoining house purchased by nonprofit corporation as re~i- zUB! dent facility for x brought action alle house violated t~ breach of rcetricti by the corporatlo tions of Commi~ Mental Retardat Disabilities vi&at stitetional rights applied, was u~ prome Court, N-~ Douglas F. You, plaint failed te si prior owners of the corporation; providing that, improved by o, only, and ac~oir acquire t~le to yeare after the the adjoining ciaries of such joining proper ~ction for any tion; (3) who restriction in was to be ue purchase by ~ erty from do to use house ly dibbled a ment on basi used ns sin_' signed for s eueh use; a~ uncon~titutl Defend plaint and i cress-motio hied. 1. Covena~ In act: ty adjoini, corporutio disabled a house viol rastrictio~ further ovide its In the ,at CPL nefits in Reeker he order ed in all ohibited 'enor-re- -, palm- :~vdering -nviction nvi~tion .t, n rio. - charge perty in ~ker to interve. :ne and ~o order :missed. ASSO- L Cay- Ill, as - York Devel. , Fed. 'on of house q resi- -- ZUBLi v. COMMUNITY MAINSTREAMING ASSOCIATES c,te m 4za N.Y.S~d SS2 dent facility for mentally disabled adults brought action alleging that such use of the house violated terms of easement, that breach of restriction in mortgage assumed by the corporation had occurred, that ac- tions of Commissioner of State Office of Mental Retardation and Developmental Disabilities violated property owners' con- stltutionai rights and that Padavan Law, as applied, was unconstitutional. The Su- prome Court, Nassau County, Special Term, Douglas F. Young, J., held that: (1) com- plaint failed to state cause of action against prior owners of the property conveyed to the corporation; (2) where adjoining prop- erty owners were not parties to mortgage providing that subject premises were to be improved by one or two-family dwellings only, and adjoining property owners did not acquire title to their property until seven years after the mortgage was made, neither the adjoining property owners nor their granters were shown to be intended benefi- ciaries of such restriction, and thus the ad- joining' property owners had no cause of action for any alleged broach of the restric- tlon; (3) where there were no words of restriction in easement other than that it was to be used for "egress and ingress," purchase by nonprofit corporation of prop- erty from dominant estate holder in order to use house as resident facility for mental- ly disabled adults did not violate the ease- ment on basis that such property had been used as single-family residence and that easement over adjoining property was de- signed for such use and contemplated only such use; and (4) the Padavan Law was not unconstitutionally applied. Defendants' motions to dismiss com- plaint and for sammary judgment granted; crees-motion for permanent injunction de- hied. L Covenants ~=~114(1) In action brought by owners of proper- ty adjoining house purchased by nonprofit corporation as resident facility for mentally disabled adults alleging that such use of the house violated terms of easement, breach of restriction in mortgage assumed by the cot- 983 peration had occurred, that actions of Com- missioner of State Office of Mental Retar- dation and Developmental Disabilities vio. lated property owners' constitutional rights and that Padavan Law, as applied, was unconstitutional, compl.alnt failed to state cause of action against prior owners of property purchased by the corporation. 2. Covenants ~=~77 Where adjoining property owners were not parties to mortgage providing that sub- ject premises were to be improved by one or two-family dwellings only, and adjoining property owners did not acRuire title to their property until seven years after the mortgage was made, neither the adjoining property owners nor their grantors were shown to be intended beneficiaries of such restriction, and thus the adjoining property owners had no cause of action for any al- leged breach of the restriction. 3. Covenants ~=~77, 84 Unless otherwise expressly provided for in mortgage, all covenants'bind heirs, exec- utors, administrators, successors and assigns of mortgagor and inure to benefit of the heirs, executors, administrators, successors and assigns of the mortgagee. 4. Covenants ~=,103(2), 114(1) Transfer of title to property subject to mortgage, containing restriction that prem- ises were to be improved by one or two- family dwelling only, to nonprofit corpora- tion for resident facility for mentally dis~ abled adults did not violate the restriction, and no cause of action for breach of the mortgage existed in absence of any facts alleging actual change in use. 5. Easements Where there were no words of restric- tion in easement other than that it was to be used for "egress and ingress," purchase by nonprofit corporation of property from dominant estate holder in order to use house as resident facility for mentally dis- abled adults did not violate the easement on basis that such property had been used as single-family residence and that easement over adjoining property was designed for such use and contemplated only such use. ~ i I I II I III I I Iii I I i ii iii ,,, , , , ......... iiii I IIIIIIII Illl IIII III I I I I I II I II II · ~ , 9~ 423 NEW YORK SUPPLEMENT, 2d SERIES 6. Easements ~42 Where language of easement was un- ambiguous, circumstances surrounding grant of easement and situation of parties could not be considered in interpreting the easement. 7. Easements ~54 Any actual change in use of dominant estate does not, in absence of any qualifica- tions, change use of easement. Reference~, in easement providing for ingress and egress, to right of dominant estate owners to erect two signs with occu- pants' names and addresses was not evi- · dence of intention to qualify use of the dominant estate to use by biological family 9. Cosmtltutional Law Courts have inherent authority to de- termine whether duly enacted statute tran- seends constitutionally imposed limits, but court of first instance should approach a constitutional question with reluctance and 10. Constitutional Law ~=.48(1) Statute is presumed to be constitution- al. 1 MeKinney's Conzol.Laws, Statutes, § 150, subd. b. IL Constitutional Law ~=.48(3) Presumed constitutionality of statute is rebettebte presumption against which un- constitutionality must be demonstrated be- yond reasonable doubt. 1 McKinney's Con- sol. Laws, Statutes, § 150, subd. b. 12. Zoning and Planning Absence of any provision for notice and public hearing in Padavan Law did not ren- der it constitutionally defective; the Pada- van Law is act of general legislation and therefore requires aeither notice nor public hearing to effect desired change. Mental Hygiene Law § 4A~t(aX1), (bX1-5, 2), (c, e); EDPL § 206; CPLR 7801 et seq.; U.S.C.A. Const. Amend. 14. 13. Zoning and Planaing The Padavan Law is not an unconstitu- tional exercise of local zoning authority by state. Mental Hygiene Law § 41.34~aX1), (bX1-5, 2), (c, e); EDPL § 206; CPLE 7801 et seq. 14. Zoning and Planning State or its agency, in exercising au- thority in furtherance of governmental put- pose, is exempt from local regulatory con- trol; where zoning ordinance would have effect of thwarting express policy of the state, the zoning ordinance, insofar es it conflicts with the state law, must yield. 15. Eminent Domain ~=.2(1.1) Purchase by nonprofit corporation of property to be used, pursuant to Padavan Law, as community resident facility for care, maintenance and treatment of up to 12 mentally retarded, functionally disabled adults did not result in "taking" of property of adjoining property owners, whose prep- erty was subject to easement for ingrees and egress, even if value of property of adjoining property owners were to decrease as a result of use by the corporation of the purchased property. Mental Hygiene Law § 41.34(aX1), (bX1-5, 2), (c, e); EDPL § 206; CPLR 7801 et seq. 16. Constitutional Law Every enactment under police power must satisfy test of reasonableness and must have substantial relation to legitimate governmental purpose. 17. Constitutional Law ~81 Purehase by nonprofit corporation of property and use, pursuant to Padavan Law, of house on such property as resident facility for mentally disabled adults was not shown, by owners of adjoining property subject to ingress and egress easement, to be unreasonable and arbitrary exercise of police power, and thus authority under un- der Padavan Law was constitutionally ap- plied. Mental Hygiene Law § 41~4(aX1), (bX1-5, 2), (c, e); EDPL § 206; CPLR'/80! et seq. 18. Zoning and Planning ~14 Padavan Law, to extent that it affects local zoning ordinances, is not within quirements of Village Law, and thus the Pada~ it pu, zonin_' EDPI 1978, 7-708 York defer. clat~ Ro: fend~ Ro: City, ' :'Va for , Loan Th actlo dism; judlo and mac~ plain plain dent_ atl Yor!,. hem: pl~q: )PLR 7801 ~ising au- · entai put- atory con- 'ould have icy of the 9far as it mst yield. -~ration of o Padavan acility for t of up to ly disabled ,f preperty hcee prop- 'or ingress reperty of to decrease tion: of the ;gienc Law DPL § 2O6; ,lice power leness and · legitimate ~retion of o Padavan as resident tits was not g property exercise of tionaily 4L34(aX1), CPLR 7801 :t it affnct~ within re- ~i thus the ZUBLI v. COMMUNITY MAINSTREAMING ASSOCIATES pedavan Law is not defective on basis that it purports to implement changes in local zoning ordinances without notice in hearing as required by Village Law. Mental Hy- gi~ne Law § 41.34(aX1, 4), (bX1-5, 2), (c, e); EDPL § 206; CPLR 7801 et seq.; Laws 1978, e. 468, § 3; Village Law §§ 7-706, 7-708, 21-2100, 21-2102. Friend, Perias, Dorfman & Kleefeld, New York City, for plaintiffs. Seymour H. Kligier, New York City, for defendant Community Maiastreaming Asse- ciatns, Inc. Robert A. Shuste~, Oyster Bay, for de- feedante Ira Cavrall and Sedie R. Cavrell. Robert Abrams, Atty. Gen., New York City, for defendant Thomas Coughlin, Ill. Van Brunt & Richardson, P. C., Sayville, for defendant Eastern Federal Say. and Loan Ass'n of Seyville. DOUGLAS F. YOUNG, Justice. This Court is presented with motions by the various parties in the above entitled action. Each of the defendants moves to dismiss the complaint and/or for summary judgment (Motion numbers 100, 101, 102 and 10~) and plaintiffs cross-move for sum- mary judgment (Motion number 104). This action was initially commenced by plaintiffs against the defendants to enjoin permanently the threatened uso by the de- fendant Community Mainstreaming Assnci- ares, In~ ("CMA") of the easement over plaintiffs' driveway for a purpose other than its express use, to wit: as a means of egress and ingress to a single family resi- dence. Plaintiffs amended the complaint to sue for damages for violation of said ease- ment and to attack the constitutionality of § 41.34 of the Mental Hygiene Law. PARTIES Plaintiffs are the owners of the premises at 161 Station Road, Kings Point, New York, a one family dwelling (referred to herein as "Zubli pruperty"), The Zubli property was pureha~l in March, 1978 and 985 plaintiffs reside there with their three chil- dren. Defendants Ira Cavrell and Sadie R. C4tv- rell were, at the time of the commencement of this action, the owners of an adjoining property, also a one family dwelling (re- ferred to herein as "Cavrell property"). Defendant CMA is a corporation formed pursuant to the l~ot-For-Prefit Corporation Law and with the appreval of the Depart- ment of Mental Hygiene. CMA's purpose is to acquire a home to be used as a "commu- nity residential facility for the disabled" as defined in § 41.34 of the Mental Hygiene Law ("Padavan Law"). This home would be used as a group home for no more than twelve functionally retarded and mentally disabled adults. Defendant Thomam A. Coughlin, III, is the Commissioner of the New York State Office of Mental Retardation and Develop- mental Disabilities. He is authorized by law to operate and }icense community resi- dential facilities for mentally disabled per- Defendant Eastern Federal Seving~ and Loan Association of Sayvi}le ("Eastern") holds a first mortgage on the Cavrell prop- erty and consented to the assumption of said mortgage by CMA. BACKGROUND Plaintiffs cemmeneed this action by serv- ing the summons and complaint together with an order to show cause for a prelimi- nary injunction. Plaintiffs sought an order pendente lite enjoining the defendants Cav- rell from conveying title to their premises to CMA. The Cavrell property was benefit- ed by an easement over the Zubli property's driveway as a means of egress and ingress to Station Road. Plaintiffs argued that since 1955 the Cavrell house had been used as a single family residence and that th% subject easement was intended to benefit that uso only. Since a group home would not be within the scope of the easement, they contended in the original complaint, the proposed use by CMA of the C~vrall property would violate the easement. 986 423 NEW YORK SUPPLEMENT, 2d SERIES On May 11, 1979 this Court (Young, J.) denied plaintiffs' application holding that the prolx~ed use would constitute a "family unit", that the ensement was unambiguous and without limitation and that plaintiffs failed to meet their burden for obtaining preliminary injunctive relief. Instead, the parties were directed to proceed to trial. Shortly thereafter plaintiffs served an amended complaint which reaileges the cause of action contained in the original complaint and adds five additional causes of action. The first cause of action alleges that CMA's proposed use of the premises as a community residential facility will violate the terms of CMA's casement over the Zu- bli property. The second, third and fourth causes of action allege that Sadie R. Cay- rell, CMA and Eastern are each answerable to plaintiffs for the breach of a restriction in the mortgage between Cavrell and East- ern and which mortgage has been assumed by CMA. The fifth and sixth causes of action allege that the threatened acts of Conghlin violate plaintiff's constitutional rights and that the Padavan Law ns applied in this case is unconstitutional. FACTS The facts in this case are not .in dispute. Plaintiffs are the owners in fee simple of the premises known as 161 Station Road, Village of Kin~ Point, New York which is a one family dwelling in an A-2 residential zoning district which, according to the Vii- lake's Zoning Ordinance, is restricted for single family use. The Zubli property fronts on Station Road, a public street. The premises known as 165 Station Road is contiguous to the rear of the Zubli prop- erty. This property, at the time this action wns commenced, was owned by Sadie R. Cavrell who, in 1969, acqui/ed title by a deed from herself and her husband, Ira Cavrell. In 1971 Sadie R. Cavrell executed a mortgage to Enstern which provided, in part, that the premises are to be improved by a one or two family dwelling only. The Cavrell property does not front upon a pub- lic street and aecees to Station Road is over the driveway of the Zubli property. The Cavrell and Zubli properties were, at one time, a single tract of land. When this tract wes subdivided the common grantor conveyed what is now the Zubli property to plaintiffs' predecessor in title and retained for himself tha( portion which is the Cavrell property. He did, however, reserve a right of way through the Zubii property by way of an easement over the driveway on the Zubli preperty for egress and ingress to and from Station Road. Because of the hilly topography of the Cavrell property the easement is the only means of getting to and from Station Road. Said eazoment reads as follows: "Reserving to the parties of the first part, their heirs, successors and assigns, an easement running to the contiguous lands of the grantors over the present driveway near the north line of said Par- cci C for egre~ and ingress including the right to erect and maintain two (2) signs containing thereon the occupants' names and/or addresses on the northerly stone column at the entrance of said driveway, said easement to run with the land rorer- This driveway is a partially unpaved pri- vate way approximately 8 feet in width, with no shoulders or walkways. It is main- tained by plaintiffs. When the Zubli's took title to their property they did so subject to the easement. The Cavrell property had, prior to plaintiffs taking title, been eccu- pied and used as a single family dwelling. On or about March 29, 1979 Sadie R. Cavrell entered into a contract with CMA for the sale of the Cavrell property. CMA was interested in acquiring this property and obtaining, pursuant to the Padavan Law, the appropriate license from the de- fendant Coughlin to use the premises as a community residential facility for the care, maintenance and treatment of up to twelve mentally retarded, functionally disabled adults. The proposed use would also re- quire two resident supervisors and other support personnel from time to time. The office of Mental Retardation and Develop- mental Disabilities gave preliminary assent to CMA's proposed use and notice was given to the Village plan. The Viii: gave its appcev-' jeer to certain c Plaintiffs moved to enjoi~ diecussed above, denied and the trial. Plaintiff: complaint now: is the subject o though this sa,, hied plaintiffs' by such determ the case and t~' de novo consi, stated by this this Court in i~ junotive relief the law of the the merits and the same exto~ injuuction had J.; 5/11/79) (C THE The Padava effective Sept-- by Governor C act amending the Eminent purpoec is to, munity reside The declare, Psdavan Law signed to me: disabled by pr opportunity als to remain tinge". It is gerber the ~. ngeneies and ter communi; The law d: facility for ! operated or Ii Health or and Develop vidce a supe, When this n granter roperty te I retained he Cavrell ye a right y by way :y on the ess te and the hilly ,erty the ~tting te the first ] assigns, )nfignous present said Par- _,ding the (2) signs fly stene lriveway, nd forev- aved prl- width, is main- · {i's took _,bject to rty had, iwelling. ;adie R. th CMA · . CMA ,roporty the de- he care, , twelve disabled also re- ~ other e. The ~evelop- ZUBL! v. COMMUNITY MAINSTREAMING ASSOCIATES Cite m 42{ N.Y.SJ~d ~2 te the Village of Kings Point of CMA's plan. The Village, after public hearings, gave its approval te the proposed uso sub- ject to certain conditions. Plaintiffs commenced this action and moved te enjoin the closing of title. As discussed above, the pendente llte relief was denied and the matter was set down for trial. Plaintiffs then served the amended complaint now boforo the Court and which is the subject of the various motions. Al- though this same Court passed on and de- hied plaintiffs' motion, it is not bound here by such determination as being the law of the case and the instant motions are given de novo consideration. It was expressly stated by this Court that "the refusal of this Court in its discretion te issue the in- junctive relief sought does not constitute the law of the case or an adjudication on the merits and the issues must bo tried te the same extent as though no preliminary injunction had been applied for." (Young, J.; 5/11/79) (Citation omitted.) THE PADAVAN LAW The Padavan Law (Chap. 468 L.1978), effective September 1,~ 1978, was approved by Governor Cacey on July 6, 1978. It is an act amending the Mental Hygiene Law and the Eminent Domain Procedure Law. Its purpose is te codify site selections of com- munity residential facilities for the dis- able& The declared legislative intent behind th.e Padevan Law is two-fold. First, it is de- signed te meet the needs of the mentally disabled by providing, wherever possible, an opportunity for these handicapped individu- als to remain in "normal community set- tinga". It is further designed te draw te- gather the various state agencies, local agencies and local communities and to los- tar communication and cooperation (Chap. 468 § I L.1978). The law defines "community residential facility for the disabled" as any facility operated or licensed by the Office of Mental Health or the Office of Mental Retardation and Developmental Facilities which pro- vidce a supervised residence for from four 987 to fourteen mentally disabled persons (§ 41.34(a)(1)). It further provides that such a facility shall he deemed a "family unit" for purposes of local laws and ordi- nances (§ 41.34(e)). Procedurally, the la]w requires that a sponsoring agency such as CMA, must give notice to the municipality of the proposed program. The municipality then has 40 days to approve the site, suggest an alter- native site or sites or object te the program. The municipality may only object to the establishment of the facility if it would result in a concentration of such facilities in the community (§ 41.34(bX1)-(5)). The mu- nicipality may hold a public hearing pureu- ant to local law before responding to the proposed program (§ 41.34(bX2)). Any ob- jection by the municipality shall be re- viewed by the Commissioner whose deter- ruination is revie~vable pursuant te CPLR Article 78 (§ 41.34(bX5), (c)). The Padavan Law amends Section 206 of the l~kninent Domain Procedure Law. Now, upon com- pliance with the licensing procedure, a pub- lic hearing is not required. The Eminent Domain Procedure Law requires "notice and heating" before a property may be taken for public uso. On approving the Padavan Law the'Gov- erner's message stated in part: ". At the same time, the bill aims to facilitate the establishment of commu- nity residences by discouraging frivolous i. legal dhallenges that have needlessly de- layed proper establishment of such facili- ties in the past, at great cost to the litigants. This legislation attempts te eh- courage a process of joint discussion and accommodation between the providers of care and sorvices to the mentally disabled and representatives of the community, rather than legal antagonism." (Mckin- ney's 1978 Session Laws, p. 1821) (Em- phasis supplied.) The reference te "frivolous legal chal- lenges" seemingly refers to a number of pre-Padavan Law case.a which involved whether such group homes were te be con- sidered the equivalent of single families. (Sec, Little Neck Community Ass'n v. 988 423 NEW YORK SUPPLEMENT, 2d SERIES Working Org. for Retarded Children, 52 A.D.2d 90, 383 N.Y.S.2d 364 (2d Dept. 1976), leave to app. den., 40 N.Y.2d 803, 387 N.Y. S.2d 1030, 356 N.E.2d 482 (1976); Inc. Vil- lage of Freeport v. Ass'n for Help of Re- tarded Childron, n. o. r. N.Y.L.J. 4/1/77, p. 14, col. 6 (Sup.Ct. Nasaau Co.) afl'd, 60 A.D.2d 644, 400 N.Y.S.2d 724 (2d Dept. 1.977); Tytell v. Kaen, N.Y.L~I. 6/11/79, p. 12, eels. 4-6, p. 13, cols. 1-2 (Sup. Ct,N.Y. Co.); Tauseig v. WesW. hester Aas'n for Re- t~rded Citizens, N.Y.LJ. 4/18/79, p. 5, cols. 5 and 6' (Sup. Ct,Westohester Co.); Living Resources Corp. v. Burns, 91 Mi~c.2d 919, 398 N.Y.S.2d 928 (Sup. Ct,Albany CO. 1977); see ~o, Group House of Port Washington, Ina v. Town of North Hempste~d, 45 N.Y.2d 266, 40~ N.Y.S.2d 377, ~80 N.E.2d 207 (1978); People v. Renaissance Project, Ina, 36 N.Y.2d 65, 364 N.Y.S.2d 885, 324 N.E.2d 355 (1975); City of White Plains v. Ferreioli, 34 N.Y.2d 300, 357 N.Y.S~d 449, 313 N.E.2d 756 (1974)). THIS ACTION SHOULD BE DISMISSED AOAINST THE CAVRELLS AND EASTERN The Court will first take up the motions of' the defendantz Cavrell and Eastern to di~mi~ the complaint and for sum~nary judgment. The CavrellF motion is ba~d on two ar- guments. The first argument is that Ira Cavreli is not a party in interest as he had divested himself of any title to the property in 1960. Therefore, he contond~, the allega- tion~ in the complaint against him fad to state a cause of action. The second argu- merit is that Sadie R. Cavrell has already conveyed title to CMA and that the use of the property haz not changed. This defend- ant further argees that the representation made by her in the mortgage with Eastern that the prem~es are improved by a one or two family dwelling was not violated at the time CMA took title and a~sumed the mort- gage. [1] Thia action should he dismissed against the defendant Ire Cavrell. He has not been the record owner of the Cavrell property since July 31, 1969. He is not a party in interest and the complaint fails to state a cause of 'action against him. He cannot be enjoined, temporarily or perma- nently, from transferring title which he does not have nor is he in any way liable to plaintiffs for the consequences of his wife's conveyance of title to CMA. This action should likewise he dismissed against the defendant Sadie R. Cavrell. Since title has already ~ to CMA she can no longer be enjoined from doing an act which has already been done. Further, the mere fact that the Cavrell premises have been conveyed to CMA does not change the use of the premises and the complaint and affidavits fail to substantiate that any such changes have been made. As discussed be- low, no representations or warranties were made by this defendant of which plaintiffs were the beneficiaries, or upon which they ceuld justifiably rely. At beat, the com- plaint alleges that Sadie R. Cavrell waa the record owner of the Cavrell property, that the same was benefited by the subject ease- ment and that the premises were used as a one or two family residence. Plaintiffs have not shown that they are entitled to recover damages against thi~ defendant, Eastern morea to dismies and for summa- ry judgment on several grounds. First, it argues that plaintiffs do not allege any actual violation of the mortgage clause re- citing that the Cavrell property would be used as a one or two family dwelling; second, that this clause cannot he coestrued as a restrictive covenant and third, assum- ing the clause is construed as a restrictive covenant, that plaintiffs have no cause of action against Eastern for any such breach. [2] The Court finds that this action should he dismissed against the defendant Eastern. The gravamen of the complaint against Eastern alleges that Eastern, with knowledge of CMA's intended use of the Cavrell property, did, in violation of the covenant to use the premises as a one or two family dwelling, permit CMA to es- sume the mortgage to Eastern, which stat. ed in part, "[s]aid premises are improved or will be improved with a one (1) or two (2) family residance or dwelling only." Plain- tiffs were no fact, plaintif property unt gage was n- show an iht grantors we striction the any alleged man, 14 N. N.E.2d 192 251 N.Y. 27~ hie Life As 43 N.E. 173 [3, 4] Th intended U upon plainti predece~o~ mortgage. mortgage ;' them or a tion or coY-- otherwise sign~ of tl benefit of gee (Real: found in t rides for predese~o transfer o any reztri, absence o change in breach ex notez tl~_~ mortgug~ inserted t Law §~ intent to Thus, which col CMA% pr burden t leglmativ- daint fails to ist him. He ly or perma- .le which he way liable to of his wife's '_he distained R. Cavrell. to CMA she doing an act :'urther, the -raises have change the nplaint and at any such acussad be- ~nties were h plaintiffs which they ; the eom- :Il was the erty, that bjeet eaae- used az a Plaintiffs .ntitled to lefendant. First, it lege any ~ould he lwelling; onstrued ~trictive cause of breach. ~ action fendant mplaint n, with of the of the ~h atat- wo (2) Plain- ZUBLI v. COMMUNITY MAINSTREAMING ASSOCIATES 989 tiffs were not a party to said mortgage. In fact, plaintiffs did not acquire title to their property until seven years after this mort- gage was made. Without any facts that show an intention that plaintiffs or their grantors were to be benefited by the re- striction they have no cause of action for any alleged breach (Steinmann v. Silver- man, 14 N.Y.2d 243, 251 N.Y.S.2d 1, 200 N.E.2d 192 (1964); Bristol v. Woodward, 251 N.Y. 275, 167 N.E. 441 (1929); Equita- hie Life Ass. Soc. v. Brennan, 148 N.Y. 661, 43 N.E. 173 (1896)). [~, 4] The complaint fails to allege any facts to establish that the mortgage was intended to confer a beneficial interest upon plaintiffs. Neither plaintiffs nor their predecessors in title were parties to the mortgage. There is no provision in the mortgage which can be construed to make them or anyone else not a party to the mortgage a beneficiary of any term, condi- tion or covenant contained therein. Unless otherwise expressly provided for in the mortgage, all covenants bind the heirs, ex- ecutors, administrators, successors and as- signs of the mortgager and inure to the benefit of the heirs, executors, administra- tors, successors and assigns of the mortga- gee (Real Property Law § 257). Nothing is found in the mortgage that expressly pru- vidas for benefitting plaintiffs or their predecessors in title. Further, the mere transfer of title to CMA does not violate any restriction in the mortgage and in the abeeace of any facts alleging an actual change in use no cause of action for its breach exists. Parenthetically, the Court notes that such restrictive language in mortgages like the one held by Eastern is inserted to obtain the benefit of a $25.00 tax exemption from the mortgage tax (Tax Law § 253, subd. 2(a)) and not with the intent to create a resirictive covenant. Thus, there remain only two other issues which confront the Court. The first issue concerns the plaintiffs' contention that CMA's proposed use would violate and over- burden the easement. The second issue concerns the plaintiffs' contention that the legislative scheme for licensing CMA's pro- posed use, i. e., the Padavan Law, is uncon- stitutional. With respect to these issues the Court finds that: (1) the easement is not vio{ated and (2) the Padavan Law is consti- tutional. CMA's PROPOSED USE WILL NOT VIOLATE ThE EASEMENT Plaintiffs argue that since 1955 the Cav- rell property has been used as a single family residence and that the easement over the Zubli property was designed for that use and contemplated that use only. Thus, they contend, the proposed communi- ty residential facility would be a change in the use of the Cavrell property and there- fore violate and overburden the easement. This same issue was presented to this Court in plaintiffs' motion for a preliminary injunction. This Court, in denying the mo- tion for injunctiv~ relief, ruled that the language of the easement is unambiguous and unconditional The meaning of the easement is clear. As the Court stated in denying plaintiffs' motion for a preliminary injunction: ". There are no words of restric- tion in the easement other than that it shall be used for 'egress and ingress'. It does not import any limitations in its use and so long as the driveway is used for this purpose only the easement will not be affected by subsequent changes in the use and occupancy of the dominant pres- iaes (Arnold v. Fee, 148 N.Y. 214 [42 N.E. 588] (1896); Mittnacht v. Montana, 205 App. Div. 643 [200 N.Y.S. 82] (lst Dept. 1923)). As the language of this easement is unambiguous circumstances surround- ing the grant of the easement and the situation of the parties may not be con- sidereal (Miller v. Edmore Homes Corp., 285 App. Div. 837 [137 N.Y.S.2d 324] t2d Dept. 1955), afl'd, 309 N.Y. 839 [130 N.E.2d 623] (1955)). The right-of-way for egress and ingress is available to the heirs, successors and assigns of the doral- nant estate, or, in this case, CMA." (Young, J.; 5/11/79). The above cases are in accord with 3 Pow- ell, Real Property § 415, which at page 990 423 NEW YORK SUPPLEMENT, 2d SERIES 34 183, statos" with respect to the scope of thc easement created, courts stress the primary control exercised by the language of the conveyance." [5-7] Upon reconsideration of this same question this Court adheres to its prior find- ink that the easement speaks for itself and does not purport to be limited to any partic- ular use. There is no language in the ease- ment, expressed or implied, which restricts or qualifies its use other than for a means of entrance and exit from the Cavrell prop- erty to Station Road. 'The easement:omits any reference as to who may use it or for what purpose. Thus, CMA is entitled to use the easement for "egress and ingress" gardless of whether the Cavcell property retains its traditional character or is used as a "community residential facility". Any ac- tual change in the use of the dominant estate doe~ not, in the absence of any quali- fications, change the use of the easement. "Thc omission farm thc graat here of any words limiting the use of this easement must control the construction of thc grant, for a limitation upon the exist- encc and continuance of an casement privi- lege can be predicated upon a change in the character or use of the dominant property only when an intention to impose such limi- tation is found in the language of the grant itself." (Mittnacht v. Montana, supra, 205 App. Div. at 646, 200 N.Y.S. at 85) (Citation omitked.) [8] The Court does not find, as plaintiff wouhl have it, that the references in thc easement of the right to erect two signs with thc occupants' names and/or addresses is evidence of intention to qualify the use of the dominant estate (the Cavrell property) for use by a biological family unit. This is not a situation where the easement provides that it was to be "as the same is now used." (Lattimer v. Sokolowski, 31 N.Y.S.2d 880 (Sup. Ct. Orange Co.1941) (not officially re- ported)). Nor is this easement one that was to be used "for all ordinary purposes of ingress and egress" (Bal. of Education, Cen- tral School Dist. No. 3 v. Nielsen, 21 Mise.2d 368, 195 N.Y.S.2d 169 (Sup. Ct. Nassau Co. 1959)). If the subject easement read that it was to be used for "ordinary purposes", then this Court would have to look beyond the language of the grant. However, in this ease there is a conspicuous absence of any qualifications, expressed or implied, and therefore CMA is entitled to use the easement for "egress and ingress" as is necessary. Since it is not necessary to construe the easement to determine whether CMA's pro- posed use would constitute a single family use, plaintiffs', reliance on Tytell v. Kaen, supra, is misplace:cl. Tytoll, unlike the other pre-Padavan Law eases, ruled on whether a group home of a similar type was a single family for the purpose of interpreting a private restrictive covenant (other pre-Pa- davan Law eases involved compliance with local zoning ordinances). In that respect it is analogous to the instant case since here the Court is confronted with construing an easement. However, Tytell is distinguisha- ble from the instant case by the very nature of the language used in the restrictive cove- nant. There, the owner of the tract of land imposed covenants providing that each par- cel was to he used solely for a private dwelling house for the use of a single fami- ly, and not to be used for a public or private home for treatment, shelter or care. Thus, an issue of fact was raised as to whether or not the proposed group home was a single family or an institutional facility. If it were the latter then its use was prohibited by the covenant. Since, as discussed above, the easement in question has no restrictive language as to use, there is no need (as there was in Tytell ) to categorize CMA's proposed use as familial or institutional. THE PADAVAN LAW IS CONSTITUTIONAL The plaintiffs argue that the Pada~an Law is unconstitutional in that it fails to provide for notice and public hearing and that, as it applies to the circumstances in this case, it encroaches upon plaintiffs' property without substantial relation to a legitimate governmental purpose. [9] It is settled law that courts have inherent authority to determine whether a duly enacted ~ tionally impo Const. Law §§ , first instance : tional question "While there is power to deter, to courts of pa hierarchy, it h- that a court o goneral role ar termine uneons age irreparable statute is app.' This peliey to tionality to apl: ly desirable w[ pertance and f law has been : period of time.' Realty Co., 68 i S.2d 257, at 259 40 A.D.2d 950, 1972) rev'd on ~ 347 N.Y.S.2d ~ (Citations omitt Statutes § 150~ A.D.2d 304, 3£ 1976), afl'd, 48 200, 372 N.E.2d 68 Misc.2d 100, N.Y.C.1971); P, 18 Misc.2d 103r Queens (2o.1959 the court of fir determine an i: tionality of a st Misc.2d 128, 28 Sessions, Villag does require th: be manifestly unconstitutiona § 79). [10,11] In ; statuto's consti fundamental ru constitutional § 150(b); Wig., N.Y.2d 215, 17: 869 (1958); Pc 649, 360 N.Y.S.; ~RIES for "ordinary purposes", would have to look beyond the grant. However, in ~ a conspicuous absence of is, expressed or implied, ,IA is entitled to use the gress and ingress" as is necessary to construe the mine whether CMA's pro- constitute a single family liaece on Tytell v. Keen, I. Tytell, unlike the other cases, ruled on whether a similar type was a single ~rpose of interpreting a COvenant (other pre-Pa. :nvolved compliance with nces). In that respect it : instant case since here rated with construing an Jr, Tytell is distinguisha. t case by the very nature :d in the restrictive cove- .vnet of the tract of land oreviding that each par- d solely for a private he use of a single fami- d for a public or private ~ shelter or care. Thus, raised as to whether or sup home was a single utional faciIity. If it its use was prohibited ~ce, as discussed above, ;t/on has no restrictive there is no need (as ) to categorize CMA's nilial or institutional. rAN LAW IS UTIONAL m that the Peda;an .al in that it fails to J public hearing and the circumstances in hes upon plaintiffs' tantial relation to a al purpose. w that courts have letermine whether a ZUBLI v. COMMUNITY MAINSTREAMING ASSOCIATES duly enacted statute transcends constitu- tionally imposed limits (8 N.Y.Jur., Const. Law §§ 42, 43). However, a court of first instance should approach a constitu- tional question with reluctance and caution. "While there is no rule of law limiting the power to determine constitutional questions to courts of particular rank in the judicial hierarchy, it has been authoritatively stated that a court of first instance should as a general rule ami if possible hesitate to de- termine unconstitutionality, save where the consequences may be severe and the dam- age irreparable or where invalidity of the statute is apparent on its face. This policy to leave questions of constitu- tionality to appellate tribunals '[i]s especial- ly desirable where the law is of great im- portance and far-reaching effect, or if the law has been effective for an appreciable period of time.'" (Blye e. Globe-Wernicke Realty Co., 68 Mi~.2d 948, at 950, 328 N.Y. S.2d 257, at 259 (Sup. Ct.N.Y.Co.1972), aff'd, 40 A.D.2d 950, 338 N.Y.S.2d 386 (1st Dept. 1972) rev'd on other grounds, 33 N.Y.2d 15, 347 N.Y.S.2d 170, 300 N.E.2d 710 (1973) (Citations omitted.)); (see also, McKinney's Statutes § 150(al; Comiskey v. Arlen, 55 A.D.2d .304, 390 N.Y.S.2d 122 (2d Dept. 1976), aff'd, 43 N.Y.2d 696, 401 N.Y.S.2d 200, 372 N.E.2d 34 (1977); Poople v. Kiger, 68 Misc.2d 100, 326 N.Y.S.2d 591 (Crim. Ct. N.Y.C.1971); Piantoni v. City of New York, 18 Misc.2d 1030, 189 N.Y.S.2d 804 (Sup. Ct. Queens Co.1959)). This does not mean that the court of first instance shirk its duty to determine an issue involving the constitu- tionality of a statute (People v. Paddock, 56 Mise.2d 123, 288 N.Y.S.2d 96 (Ct. of Spec. Sessions, Village of Dansville, 1968)) but it does require that the challenged legislation be manifestly invalid before a finding of unconstitutionality (8 N.Y.Jur., Const. Law § 79). [10,11] In approaching the issue of a statute's constitutional validity there is a fundamental rule that it is presumed to be constitutional (McKinney's Statutes § 150(b); Wiggins v. Town of Somers, 4 N.Y.2d 215, 173 N.Y.S.2d 579, 149 N.E.2d 869 (1958); People v. Bcoadie, 45 A.D.2d 649, 360 N.Y.S.2d 906 (2d Dept. 1974), afl'd, 991 37 N.Y.2d 100, 371 N.Y.S.2d 471,332 N.E.2d 338 (1975)). However, this is a rebuttable presumption against which unconstitution- ality must be demonstrated beyond a rea- sonable doubt (Fenster v. Lt, ary, 20 N.Y.2d 309, 282 N.Y.S.2d 739, 229 N.E.2d 426 (1967); Matter o£ Van Berkel v. Power, 16 N.Y.2d 37, 261 N.Y.S.2d 876, 209 N.E.2d 539 (19¢L5)). Any doubts must be resolved in favor of constitutionality. As stated by thc Court of Appeals, "lilt has been our rc- peated tulmonition that legislation should not be declared unconstitutional unless it clearly appears to be so; all doubts should be resolved in favor of the constitutionality of an act. This court ha.q repeatedly stated that t~c wisdom of legislation is not for us to determine" (Johnson v. City o£ New York, 274 N.Y. 411, 430, 9 NE.2d 30, 3~ (1937)). [12] The plaintiffs' first constitutional argument is that the Padavan Law obviates the necessity for notice and public hearing to affec~d property owners while purport- lng to effect zoning changes by dt~'laring community residential facilities to ~, family units. Constitutional due process, they sub- mit, requires that before a zoning change affecting a particular proporty or adjacent property is adopted, notice must'be givvn to affected property owners and a public htar- lng held. The Padavan Law does not provide for notice to any affected property owners or for their participation in the licensing proc- ess. While the municipality may hoht pub- lie hearings, the sole ground upon which the municipality may object to the proposed facility is that it would result in a concen- tration of community residential facilities in the municipality (Mental Hygiene Law 41.34(b)(5)). Further, it appears from read- ing the statute that any review of the Com- missionec's determination to grant or deny a license is limited to either the sponsoring agency or the municipality. Thus, plain- tiffs argue, by declaring thc facility to be the equivalent of a single family home without affording them an opportunity to participate in the procedure, the Padavan 992 12:1 NEW YORK SUPPLEMENT, 2d SERIE,~ II i~ the condu~ion of this ('m~rt that pubhc hearing in tile Padawm Law do('s not rcnd(,r it constitutionally defective. Thc ['adaxan I.aw is an act of general legista- nor a public hearing to effect the desired changt.. In the case of San Di~,~.o BuHdinK ~'on- of ~.~ Die&~o, 13 Cal.3d 205, 1 lg ('al Rptr, 146, 5~ P.~I 570 (1974), appeal dismissed, 427 U.S. 901, 96 S.Ct. ;~184, 49 [..Ed.~l 1195 (19~6), the Supreme Court of California hehl, inter alia, that due pr(mess requm~ notice ami hearing .nly m quasi-judicial .r adjudleaU)ry .settings and m~t in respect to the adoption o[ general legislation. In the San Dj'e&ro casu the ~oters of thc City of gan Diego, a charter city, ('hatted a zoning ordimmce through thc initiativ. pr{~ess. The ordinance established a 30 foot height limitation for buihling~ con- stmeU. I within th. ('ity's prcscrit~,d coastal zone. ]'laint~ffs, building, contractor ations, challenged the wdidit.~ of the ~mli- nanee con[emling that the City Charter and the "due pr(mess" clause of the federal con- stitution iwe(.luded tiw City ['rum adopting. any zoning ordinance ~ithout affi)rding all mg (relying primaril5-n Ih.hli. ~ 401 U.S. 371, 91 SCt 780, 28 I..Ed.gd 113 ( 1971)}. qu~si-judicia} or adjudicatory settings and not with respect to general h~gislation such th~, Court said: "Plaintiffs' entir(~ due process argument, premise. From the im:elaion of this without affo~ing each potentially affe.t- (~1 individual notice and h*.aring. As w~ shall explain it is black letter cmmtitu- dec and hearing' md.~ in quasi-judicial or adjudicatory settings ami not with spect to the adoption .f general legisla- tion. 'Where a rule uf eomluct ap- [)lie.; lo more than a fu~r people, it is .npra('ticab[e that everyom, shouht have a direct ~oice in its adoption. The Consti- tution does not reqmre all public acts to Im donu in town meeting er an assembly of thu whole. General statutes within them a chance to [m heard. Their righB ~ho make the rule.' the decisions applying the due sion-making in an a~/.(ticative setting, in an imlivhlual was determined by lacks I~culiar to th(, individual ease: the adoption (,f a broad, ~(+ncrally apl)licahle legri.slativc rule. We are thus not faced in the I~r of moro limited 'administrative' zon- l~rmit, which are adjudicatory in nature and ahich thus imolve entirely different r(.view th(~ enactment of legislation of the classic m(dd, establishing a broa(t, gener- ally ap[)licahle rule of conduct on the basis of a general public policy." (San l)it%n) Bhl~. Contract.rs A.s.s'n v. City (5~um.il, 13 Cal.gd 205, at 211 18, 118 CaLRptr. 146, at 149 150, 5~J P.2d 570, at 573 574) {Emphasis in original,) (Cita- mg of the Supn~me C.urt of California, holds thc l)adavan Law constitutional de- sptte the absence of any provision affording plaintiffs' notice and hearing. The Pada- fin uni · ..adj [)r( thc uni Jasi-jUdicial or not with re- eneral legisla. f conduct ap- people, it is · should have · The Consti. public acts to an aseernbly ;tutes within ~at affect the iduals, some- ithout giving Their rights ay that they ty, by their ', over those ,lng the due ~'e and hear- mental deci- · e setting, in m affecting id by facts case; the nvolves the g applicable teed in the :treat num- t of a vari- itional use , in nature ¢ different nstead we Lion of the ad, gener- aL on the ~Y-" (San n v. City 1 13, 118 2,t 570, at · ) (Cita- reason. :alifornia, tonal de- ~ffording Pads- ZUBLI v. COMMUNITY MAINSTREAM1NG ASSOCIATES van Law is an act of general legislation which declares all duly licensed community residential facilities to be family units. The finding that a licensod home is a family unit is accomplisbed by legislative fiat. It does not come alx~ut as the result of any adjudication or quasi-judicial determination on thc particular facts and makeup of a proposod facility. If the proposod faeilit5 meeks the requirements for licensing then the legislature has seen fit tu deem the facility to be the equivalent of a family unit. Due process does not require all af- fected property owners be afforded notice and hearing euch time a Padavan-t.~pe license is g-ranl~d. The San Diego case ,letcrmined that while the legislation may have an impact on real property rights, that does not entitle such legislation to different constituti.nal procedures than other legislative matters, " The due process clause of our federal Constitution applies uniformly to deprivations of 'lift,, liberty or property,' and the time has long past when property rights were exalted over our citizens' rights in life or liberty. Legislative en- actments are continually adopted which significantly affect indivktuats' qifc .r liberty'; trades and professions are sub- jectod for the public good to complex regulations limiting the liberty to engage in such occupations, ami sharp business practices are continually regulatod through criminal statutes. If such legis- lative measures can be enacted without affording affected individuals notice and hearing, as plaintiffs concede, plaintiffs cannot reasonably contend that notice and hearing are constitutional prerequi- sites for zoning legislation." (San l)ieg'o BMg, Contractors Ass'n, 13 Cal3d 205, at 213 14, 118 CaI.Rptr. 146, at 151,529 P.2d 570, 573) (Emphasis in original) [13] Thc Padavan Law is not as plain- tiffs see it, an unconstitutiomd exercise of local zoning authority by the Stab! It is :tn exercise of the State's fundamental polk'c power for the public good and welfare. Plaintiffs' I,rol~!rty is n.t the onl:, properly affected by the Padavan Law, nor is th,, 993 Village of Kings Point the only municipali- ty affect~ql The Padavan Law is an exer- (ise of the State's police power that sweeps from border to border, affecting all proper- ty owners and all municipalities. It is an act of general lugishttion and does not ~ve rise to a requirement of notk'e and hearing each time a property owner is affected by its enactment. [H] Further, thc State or its agency, in excnfising authority in furtherance of a gnvernmental l)urjs)sc, is exempt from local re~latory control (County ,f ~'stchester ~. Village of Mamamneck, 22 A.D.~I 143, 255 N.Y.S 2d ~0 (2d Dept. 19~), afl'd, ~6 NY.~I 940, 2~ N.Y.S.~I 9Z5. 212 N.E.2d 442 (19~¢5D Where a zoning ordinance would haw~ the effect of thwarting the expressed policy of the State, the zoning ordinance insofar as it conflicts with thc State law must yield (Abbott ttousev. Vil- la~c of Tarrytown, 34 A.D.51 821, 312 NY S.51 M1 12d Dept. 1970D. Here, the Pada- van Law's expressed intent to extend the benefits of normal residential surroundings to the mentally disabled and its definition ut family unit override any conflict with the zoning ordinance of the Village of Kings P. int. Thus, the definition of com- munity residential facility as a family unit by the Padavan Law does not unconstitu- tionally deprive plaintiffs of their property rights. Certainly, plaintiffs have no vested right in the continuance of a particular zoning clas'sifimtion (Rodgers v. Village of Tarrytown, 302 N.Y. 115, 96 N.E.2d 731 (1951)). [151 Phtintiffs also make thc ar~ment that, as applied in the facts before the Court, thc Padavan Law is unconstitutional because it is a taking of property by thc State without just compensation. The Padavan Law is of statcwide effect and cunnot be considered a "taking" of plaintiffs' private property There is no takin~ hy the State either hy physical inva- sion of plaintif[s' prota, rty or by direct legal restraint o~ ils use The l'adavan lmw does not fnree plain- t~fq' property to serve as an access to the 994 423 NEW YORK SUPPLEMENT, 2d SERIES Cavreli prolx, rty The State has not acted to create the easement. No property was ~tak n from plaintiffs: The right of wuy preexistt.~l the Padavan Law and was cr~,at- ed by deed. The plaintiffs purchased their Prei~crty subj(~t to a valid easement re.rd. As the successor in interest to thc prior ownem, CMA has the clear right to use the plaintiffs' driveway ~ this w~ a property right appu~enant to thc Carroll property. The s~cific terms of the ease- ment ~ant CMA (without restrictions) thc right ~ "e ss ' ~ and m~ess" over tbe Zubli proi~rty's driveway. As discussed p~vi- ously, the proposed u~ of the CavrelI prop- erty by CMA d~s not violate the e~ment. Tbe ~ghts of plaintiffs are subservient to the right of CMA to use tbe ea~ment. That is the nature of an e~ement in favor of the dominant csta~ (Huyck v. Andrews, 113 N.Y. 81, 20 N.E. 581 (1~9); Pierce v. Keator, 70 N.Y. 419 (1877)). Shouk{ the value of pla}ntiffs' property decrease as a result of CMA's u~ this would not al~r this Court's determination. CMA acquired the Cavrell pro~rty, includ- ing the easement, without taking property rights from plaintiffs. Thus, CMA's usc would ~ a use of conti~ous property only. As a matter of law adjacent property own- ers are not deprived of their pro~rty he- cause of the State's use of a contiguous pro~rty. This is so even though thc value of the prol~rty of the adjacent owner deero~cd (Get, ssi v. Comm{~sione~ of Hicksrille Wa~.r District, 45 Misc.~ ~l, ~6 N.Y.S.2d 910 (Sup. Ct.N~sau Co.1965); Mater of Brent v. Hm,b, ~ Misc.2d 1~2, 205 N.Y.S.~ ~ (Sup. Ct. Suffolk Co.19~)). Additional]y, plaintiffs argue that thc Pa- davan Law, as applied in the instant case, does not fu~her a {e~tima~ Sta~ interest and is an unreasonab{e exercise of the {icc power. {16] Ew. ry enactment under the {rower must satisfy the test of reasonable- ne~ and must have a subs~ntial relation to a legitima~ government{ put.se (Fred F. reach Ingesting Co., Inc. v. City of Ne~ York, 39 N.Y.~ 587, 3~ N.Y.S.~ 5, 350 N.E.~{ ~1 (1976)). Any inquiry is there- fore ]indtcd to determining whether under all of th~ circumstances, the legislation is reasonab/~ related to the community policy sought to be implemented, and not unduly oppressive (People v. Goodman, 31 N.Y.2d 262, 338 N.Y.S.2d 97, 290 N.E.2d 139 (1972)). [17] Here, the legislature has recognized the need to encourage a more enlightened and humane approach to the care and treat- ment of mentally disabled people. This need was aptly stated by Justice Di Fede in Tytell v. Kaen, supra, in which he said, "[i]nstitutions such as the infamous Willow- brook State School on Staten Island, we now see as destructive warehouses little better than concentration camps which must be dosed in favor of appropriate eom- munity facilities." The State of New York had such a goal in mind when it adopted the Padavan Law. By amending the Mental Hygiene Law the legislature expressed a pulflic policy that the m'eds of the mentally disabled should he met through the concept of group homes in community settings en- abling each individual an opportunity to develop capabilities with that degree of treatment, care, rehabilitation and educa- tion that he or she requires (Chap. 468 § 1 L.1978l. The Padavan Law authorizes · 'tgerlcit.~ such ;k'-; (:MA, uuder license by the State, to establish and operate these facili- ties. Plaintiffs have not shown that this legis- lation is unreasonable or arbitrary. This is not a ca.se involving a regulatory statute that cxcrci~s restraint or control over an individual or his property. The Padavan Law merely provides a procedure for estab- lishing and licensing community residential facilities for those less fortunate than oth- ers. The effect of the statute on plaintiffs is merely fortuitous in that the property proposed for a group home has the benefit of an easement over the Zubli property. The State has not singled out plaintiffs' property to provide egress anti ingress to the Carroll property nor does it expand the scope of the easement. The permissive use of the easement by CMA has been deter- mined without consideration of the Pads- van Law. The Cou the test o cncroachm~ property ri. to a legiti,, F. French 1 York, su pr.' While pl.' of the Cavr the use intc and that otl a determina the defend: Law § 41.Lq Brent v. He [181 Plai Padavan La Law, is deft The Pada~ Eminent Do obviate the ~ when a site i establishing ty (Chap. 4¢ tend that ir amemlment; van Law (by tim facilities implement c nanccs witho quired by the Plaintiffs n of the Villag and coextens Article 7 of t lares to enac sire zoning pi lng ordinane; amended by t plying with ti lng requirem: 7 7O8, 21 21C example, if th: to change the ments for buih district the al: to be given, f However, sue} stance. ether under egislation is unity policy not unduly , 31 N.Y.2d 139 (1972)). s recognized enlightened :e and treat- 'opic. This ~' Di Fede in ch he said, ·ous Willow- Island, we louses little raps which )priate com- f New York adopted the the Mental expressed a he mentally the concept settings en- ,ortunity to degree of and educa- ,ap. 468 § 1 authorizes 'ease by the these facili- t this legis- ~ry. This is ory statute ro{ over an ~,' Padavan =e for estab- ' residential e than oth- m plaintiffs ~e property the benefit ii property. ~ plaintiffs' ingress to expand the missive use been deter- the Pada- ZUBLI v. COMMUNITY MAINSTREAM1NG ASSOCIATES The Court finds that thc statute meets the test of reasonableness. There is no encroachment on the exercise of private property r}ghts without substantial rehttion to a legitimate gnvernmenta] purpose (Fred F. French Investing' ('o., Inc.. v. City o£ New York, supra). While plaintiffs argue that the stied inn of the Cavrell property is inappropriate for the use intended, to wit: "mainstreaming", anti that other sites are more suitable, such a determination is not for this Court but for the defendant Coughlin iMcntal Hygiem! Law § 41.34(a)(4), th!(5); see also Mat~er of I~rcnl v. lhx'h, supra). {181 Plaintiffs further argue that the Padavan Law, by not amending the Village Law, is defective. The Padavan Law specifically amemls thc Eminent Domain Procedure Luw so as to obviate the necessity for notice ami hearing when a site is condemned for the purpose of establishing a community residential facili- ty (Chap. 4~ ~ 3 L.1978). Plaintiffs con- ~nd that in failing to include a sOre[ar amendment to the Village Law thc ['ada- van Law (by defining community re~iden- rial facilities ~ family units) purp, wts lo implement changes in Io~1 zoning ordi- nances without notice amt hearing as re- quired by the Village Law. Plaintiffs mi~onstruc the plain mea,ing of the Village Law as being applicable tn and coextensive with the pad:wan Law. Agiclc 7 of the Village Law empowers vil- lages to enact and implement comprehen- sive zoning plans. Onec enact'd, {¢ml zon- ing ordinances may not be changed or amended by the municipality without com- pyng with the prescrit~d notice and hear- ing requirements (Village Law ~§ 7 706, 7 708, 2l 2100 and 21 2102). Thlls, for example, if the Village of Kin~ Paint seeks to change the minimum frontage require- ments for building Io~$ in a pagicular zoned district the appropriate notice woeld huve ~o be given, followed by a public hearing However, such is not the case in this in- stance. 995 The notice and hearing requirements of the Village Law are applicable only when the municipality itself proposes the change or amendment. The Padavan Law, to the extent that it affects local zoning ordi- nances, is not within thc requirements of th(! Village Law. It was dui> enacted by the Si:de lcLqsiature and si~ncd into law by th~ governor. The Villag,. Law drms not require any notice and hearing m ~his in- stance Only if the chan~c or amendment were to ~}ri~finate at thc ,,iliage Icxel wouhl notice and hearing I~ required. Since thc ny and of statewide application, n.iice and CONCIAJSION While this Court is not unmindful ,ff the concerns of plaintiffs in having the neigh- t~>ring Carrel{ property conxerted to a corn reunify residential facility for the mcntall> disabkM, nevertheless, this action must he dismissed, Thc easement does not preclude use. Further. the Ic~shttun~ has dccmcd it approprmte to codify a public policy of pro- vi,ling the mentally disabled with an oppof tunity to live, not in institutional isolation, In a::cordance with thc forcgmng. ~t is the plaint and for summary iudgmvnt Plain- is denied. Board of Zoning Appeals, Page Two January 8, 1987 Town of Southhold and surrounding neighbors possibly preventing ready access to their properties in the event of an emergency. The right-of-way was created to accomodate a private community of limited use, not to provide access to an establishment open to the general public. Please be aware that applicants maintain a legal two-family dwelling on the subject premises at present; use of the property as a "bed and breakfast" will constitute an over-intensification of the use of the premises and burden adjoining property owners. Section 100-30(B)16(a) mandates adequate off-street parking for a "bed and breakfast" establishment. Realistically, a minimum of ten parking spaces will be required to accomodate the current two families in residence, up to six proposed "guests" and employees, thus greating a mini-parking lot in the midst of a residential area. My clients' home is appraised at $350,000, which appraisal is based upon the residential location of the subject parcel. A change in use of the adjoining property allowing use by the public will clearly depreciate the value of their home. The Board may be aware that the applicants maintain a gift shop in the immediate vicinity which specializes in handcrafted items. My clients are concerned, rightfully so, that this business enterprise could easily extend to the subject premises as an added appeal to prospective guests, should the premises become open to public use. My clients therefore request that the Board deny this applica- tion as not being in the best interest of the health, welfare and general harmony of the community. Very truly yours, PEnni CAROL FITTERMAN PCF:lc Enclosures cc: Ms. Cyd Branciforte Mr. John Michalowski Perri Carol Fitterman A'F©PNE¥ Al ~\,~, ?3 North Oceon &venue Potcho©ue New York : 1 ~ 2 January 8, 1987 'George E. Lechtrecker, P.C Board of Zoning Appeals Town of Southhold Southhold Town Hall 53095 Main Road Southhold, NY 11971 Attention: Gerard P. Goehringer, Chairman Re: Appeal #3572 Michael & Joyce Mattes Premises: 50 Luther's Road, Mattituck~ NY (113-30-07) Dear Mr. Chairman: I represent Cyd Branciforte and John Michalowski, owners of premises located adjacent to the above-referenced premises which are the subject of the application to the Board this evening. It is my understanding that the applicants seek special exception pursuant to ~100-30(B)16 of the Southhold Town Code to establish a "bed and breakfast" in their home. My clients vehemently oppose this application for a number of reasons. They purchased their property based on the premise that it was akin to a private estate. As you can see from the attached survey, they have no private entrance to their property from Mill Road due to traffic congestion, but rather have access by means of a 25 foot right-of-way. This right-of-way is a result of the division of an old estate and was uniquely designed to create a "community within a community". Use of it is granted my clients by deed dated October 29, 1986, attached hereto, which use they share with four adjoining property owners, including the appli- cants. Ail adjoining property owners are responsible for mainten- ance of the right-of-way. It is respectfully submitted that any additional use of the right-of-way by the general public as access to applicants' property will create increased traffic to the area and subject my clients and other adjoining owners to legal liability in the event of an acci- cent or other tortious incident. Furthermore, New York State law requires that there be sufficient ingress/egress for emergency vehicles to residential property. I submit that the additional traffic congestion on this private road endangers my clients and CONSULT YOUR LAWYER BEFORE SllnNING THIS INSTRUMENT--THIS INSTRUMENT SH~UL~E USED BY LAWYERS ONLY. ( MAP ;NATION lO00 113.00 0300 007.00~ TH~INDEN'IXJRE, made he 29thd~ of October ,~neteenhundred Md eighty-six B£T~ CYD D. BRANCIFORTE, residing at 3 Idaho Court, Coram, New York, and MARGOT PURSLEY, residing at 105 Nassau Court, Rocky Point, New York, as tenants in co,non, each as to an undivided one-half interest ~rtyo£thefirstpa~,and CYD D. BRANCIFORTE, residing at 3 Idaho Court, Coram, New York and JOHN MICHALOWSKI, residing at party o[ the second part, WI-I'NF-3$LVI'H, that the party of the first part, for NO 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, ,a, ll. tbat certain plot, piece or parcel of land, with tbe buildings and improvements thereon erected, situate, lyingand being Mqhe- 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 Mill Road, said point being South 87° 44' East, 261.20 feet measured along the northerly side of Mill Road from the intersection formed by the easterly side of Luther's Road with the northerly side of MiJ1 Road~ RUNNING THENCE North 1° 37' 50" East along the easterly line of lands now or formerly of Arlene Marvin, 260.00 feet to a point on the southerly side of a 25 foot right of way; THENCE North 87° 14' 16" East, along said right of way, 175.01 feet to a monument on the westerly boundary line of "Map of Jackson's Landing", Map Number 5280; THENCE South 8° 05' 40" East, along last mentioned land, 190.32 feet to a monument on the northerly side of ~Jl! Road; THENCE South 69° 04' 40" West~ along said road, 223.76 feet to the point or place of BEGINNING. TOGETHER with a right of way over a 25 foot strip of ].and running from the southerly side of Mill Road to Mattituck Creek, more parti- cularly bounded and described as follows: BEGINNING at the northwesterly corner of the parcel herein described distant the following three (3) courses and distances from a monument situate at the intersection of the southerly line of Mill Road and the westerly line of Jackson's Landing: (1) North 88° 02' 20" West 41.20 feet~ (2) South 69° 04' 40" West 3.0 feet; and (3) North 87° 44' West 297.0 feet; TOGKTHER. 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 premises to the center lines thereof, TOGIg'I'HER with the appurtenances and all the estate and rights of the party of the first part in and to said premises, TO HAVE AND TO HOLD the premises herein granted unto the par~y 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 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 aforesaid. 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 as a trust fund to be applied first for the purpose of paying the cost of the improvement and will appIy the same first to the payment of the cost of the improvement before using any part of the total of the saxne for any other purpose. The word "party" shall be construed as if it read "parties" whenever the sense of this indemure so requires. IN ~ WHF_.R~OF, the party of the first part has duly execute~l this deed the day and year first above written. ~N PRESENCE CYD D. BRANCIFORTE MARGOT PURSLEY THENCE from said point of beginning running easterly along th~ southerly side of Mill Road 25 feet to a point and lands now of Marvin; THENCE running South 3° 39' East 115.0 feet, more or less, to the ordinary high water mark of Mattituck Creek; THENCE in a westerly direction along the ordinary high'water mark of Mattituck Creek 25 feet, more or less, to lands now or formerly of Sullivan; THENCE along said last mentioned lands North 3~ 39' West 115.0 feet to the point or place of BEGINNING. SUBJECT to any state of facts that an accurate survey may show. TOGETHER with a right of ingress and egress in common with others to and from Luther's Road over a 25 foot right of way the southerly line of which is partly the northerly line of premises herein described and partly the northerly line of premises now or formerly of Marvin adjoining to the west,which line runs the following two (2) courses and distances: (1) South 86° 49' 20" East 295.00 feet; and (2) North 87° 14' 16" East 125.00 feet. Said premises being known as and by 49 East Marlene Lane, Mattituck New York. BEING AND INTENDED to be the same premises conveyed to the grantors herein by deed of August A. Stahl dated April 24, 1985 and recorded in the Suffolk County Clerk's office on May 1, 1985 in Liber 9782 at page 96. The premises herein are not encumbered by a credit line mortgage. "$~:~Ol~#gW'YO~,g, COUmOP SUFFOLE ~ ~[ ~ ~ 29t~y ~ October,' 19 86, ~fo~ ~y ~e Margot Pursley ~ me ~o~ to ~ ~e i~vid~ s d~ in ~d who ~t~ ~e fo~&ng instant, and ~wl~ged ~t they ~t~ ~e ~ Notary JOAN E. McNICHOL NOTARY pUBLiC, State of New York No. 4713439 ,/ Qualified in Suffolk Count~ ~ Commission Expires June 30, lff'---~ 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 by like order. STATE OF NEW YORE, COUNTY O~ 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 ~m~ STATE OS NEW YORK, COUNTY OF ss: On the day o[ 19 , before me personally came 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. WITH COVENANT AGAINST CRAN'IOR'S ACTS ENo. Citation Abstract 8608-731064 CYD D. BRANCIFORTE and MARGOT PURSLEY TO CYD D. BRANCIFORTE and JOHN MICHALOWSKI Dioribut#d by mm/TITLE GUARANTEE- NEWYORK ATICOR COMPANY SECTION i 13 · 0 0 BLOCK 0300 LOT 007. 003 COUNTY OR TOWN Suffolk County TAX BILLING ADDRESS Recorded Al Request of Tho Title Guaranleo Company RIlTURN BY MAIL TO: PERRI CAROL FITTERMAN, ESQ. 73 North Ocean Avenue Patchogue, NY 11772 Zip No. JOHN R. MCNULTY ARTHUR DiPIETRO JAMES SPIESS BARBARA L. COUGHLAN McNULTY ~ D~PIETRO January 7, 1987 Southold Town Board of Appeals Main Road State Road 25 Southold, New York 11971 PAT FRANK NESC~ EDWARD B. BURKE OF COUNSEL Attention: Gerald P. Goehringer, Chairman Re: Application of Joyce & Michael Mattes Dear Mr. Goehringer, Enclosed herewith please find original and four copies of a Memo- randum of Law submitted of behalf of the applicants. If you have any questions, please contact me. Very truly yours, BLC/tms Encs. ZONING BOARD OF APPEALS TOWN OF SOUTHOLD In the Matter of the : Application of : MICHAEL AND JOYCE MATTES : MEMORANDUM OF LAW ON BEHALF OF APPLICANTS, MICHAEL & JOYCE MATTES, IN SUPPORT OF APPLICATION FOR A SPECIAL EXCEPTION USE January 6, 1987 BARBARA L. COUGHLAN of Counsel McNULTY, DiPIETRO & SPIESS Attorneys at Law 130 Ostrander Avenue P.O. Box 757 Riverhead, New York 11901 ZONING BOARD OF APPEALS TOWN OF SOUTHOLD In the ~atter of the : Application of : MICHAEL AND JOYCE MATTES : MEMORANDUM OF LAW ON BEHALF OF APPLICANTS, MICHAEL & JOYCE ~ATTES, IN SUPPORT OF APPLICATION FOR A SPECIAL EXCEPTION USE. This memorandum of law applicants, ~ICHAEL and JOYCE concerns real property located is submitted on behalf of the MATTES. The application on the corner of Luther and ~ill Road in ~attituck. Said real property is also known as Lot 1 of Edgar and Arlene ~arvins' Minor Subdivision (No. 149), approved by the Town of Southold in 1978. There are three (3) other lots which make up the ~arvins' Minor Subdivision, all of which have access over a twenty-five (25) foot right of way, immediately to the north of the subject premises. The real property is improved by a seven (7) bedroom, three (3) bath victorian home, which has been carefully restored and is now listed on the state and national Registers of Historic Places. The property is presently located in an "A" Residential zone and has a Certificate of Occupancy for a pre-existing non-conforming two-family dwelling. (Attached hereto as Exhibit A.) ApDlicants' neighbors, in particular, those that own the remaining three (3) lots of the Marvins' ~inor Subdivision, have opposed the application. Most of the opposition seems to be against the use itself. They have also, however, expressed a concern regarding privacy, access over the twenty-five (25) foot right of way, and any signs which will be ~laced on the property. With respect to the neighbors' opposition to the use, it must be pointed out that the use is permitted within the zone; it is not a prohibited use. Consistent with this, New York Courts have held: "Review of an application for a special use in the [zoning] ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood." p_r_e_e_n_ v. ~_o~_r_a_n_d_e_, 96 A.D. 2d 524, 464 N.Y.S. 2d 831 (2nd Dept. 1983), ~3_u3_e_ v . ~_~_o_f__A_Rfi~_a~_s_ , 645(1972). citing Matter of North Shore Steak 30 N.Y. 2d 238, 331 N.Y.S. 2d Furthermore, "a mere general denial by the adjacent landowners is not sufficient to justify a denial [of a special exception permit] ." ~_o3_t_h_~_h_o_r_e_~_~i_t3_e_~ v. ~_r_i_t_t_~, 81 A.D. 2d 982, 440 N.Y.S. 2d 85 (3rd Dept. 1981); ~_a~_e~__o_f_ ~_a~_d33__H3jJ_i_n_%~_o3_p.. v. ~33_p_~J3_a_~, 43 N.Y. 2d 801, 402 N.Y.S. 2d 388(1977). Moreover, in the instant case, it must be pointed out that the property is presently a pre-existing two-family dwelling. The two-family dwelling, located on only 73,000 + square feet, today would not be permitted, but is because of its pre-existing status. However, the applicants have indicated a willingness to abandon this pre-existing, nonconforming use if they are granted a special exception use for a bed and breakfast. Surely, the neighbors should prefer a permitted use to a prohibited one. With respect to the neighbors' opposition regarding access, privacy, and signs, the applicants recognize that the board may impose conditions on their use to minimize the impact on the surrounding area. Further, the applicants have demonstrated a willingness to comply with certain conditions. However, the declaration of convenants and restrictions proposed by the neighbors are unacceptable. Initially, in their covenants and restrictions, the neighbors propose that the parking area "shall be screened by a contiguous and uninterrupted row of evergreens not less than six (6) feet in height and not less than ten (10) feet in width to be located along the ~_n_~i_~_e_n_%~_~ of the northerly boundary line of the premises owned by the Mattes." (emphasis supplied). Applicants first point out that ~100-119.1 of the Town Ordinance prohibits shubbery within five (5) feet of the property line in excess of four (4) feet in height in a front yard. The applicants' northerlv boundary line is considered a front yard since the twenty-five (25) foot right way is adjacent thereto. Accordingly, the ~{attes cannot plant "evergreens not less than six (6) feet in height" along this boundary line and still comply with the Ordinance. Further, to require a full screening of the northerly boundary of the applicants' property would be excessive. The boundary line is over 260 feet long while the parking area itself will not be greater than 100 feet in length. Finally, we must remember that the property is presently improved by a legal two-family dwelling. Therefore, the parking lot now accomodates two families. The additional parking required for a change from a two-family dwelling to a bed and breakfast with three (3) rooms for rent, should be minimal. Next, the neighbors propose to limit the ~attes' access to the twenty-five (25) foot right of way. The Mattes deed gives them access over that right of way and there is no reason that they should relinquish that right. However, if the ~oard identifies a problem with the right of way as a means of exit from the subject property, the Mattes have agreed to install an exit on their own property for use by the guests of the proposed bed and breakfast. With respect to the issue of signage, the ~attes assert that they will comply with the Code of the Town of Southold before installing any sign. In conclusion, the Court is ~_a_!__D_e__E~n_t_e_r_~i~s_e_s- v. ~_I_s_l_i~p~_T33_n_, 99 A.D. 2d 469, 470 N.Y.S. 2d 176 (2d Dept. 1984) held: "A special use permit contemplates a use expressly Generally, demonstrates a willingness to comply with to minimize the impact on the surrounding 177. The applicants, ~ICHAEL and JOYCE MATTES, have demonstrated a willingness to comply with conditions, the Board may impose to minimize any impact upon the surrounding area. However, those conditions must be reasonable. permitted by a particular zoning ordinance. such a permit should be issued once an applicant conditions imposed area." Id. at which be For the reasons granted. stated above this application should Respectfully submitted, McNULTY, DiPIETRO & SPIESS 130 Ostrander Avenue P.O. Box 757 Riverhead, New York 11901 January 6, 1987 TOWN OF SOUTHOLD BUILDING DEPARTMENT Town Clerk's Office Soud~old, N. Y. Certificate Of Occupancy ~r No..z...9.3.0.6. .... Date ......... ,%.'9.v.e..~.b.e.r..1.?, .... , 19.7.~. ~f~x~x x xxxx x x ~m~a~:m~x x xx~ x xx ~x~. ........................ . ......... RLQUIRE~?.iiTS FOR A NON-CONFOPJtING TWO -FAMILY DI;L'LLIi;C, built to CERTIF,I,.UA'~!?, OF OCCUPAL~Cy dated I;ovembel[ 17, ...... , 19'/{~.., was issued, and conforms to all of the require- ments of the applicable provisions of the law. The occupancy for which this certificate is issued is a lion-co; £ur:ninq T'^'o-.i'rnil. D~'~ ] ' n~' * The certificate is issued to EDGAI: of the a~oresald building. Suffolk County Department of Health Approval UNDERWRITERS CERTIFICATE No. P. reakt:., t,.r HOUSE NUMBER 5 o Street .... , ... ........ N~w York ..................................... ~' ~ '~f ....................... l~O0-11~-~-~rt of ~t ~ ...................................... Building Inspector eThis does not cover the dwelling sitting on the line of Lot No. 1 and Lot No. 2 which must be removed. T~.LDY Southold, N.Y. 11971 (516) 765-1938 December 30, 1986 Mr. John W. Davis Sterling Road Cutchogue,NY 11935 Re: Minor subdivision of Edgar and Arlene Marvin (#149) Dear Mr. Davis: Enclosed is a copy of the subdivision and tax map for the above mentioned approved subdivision. Would you please make an inspection on the right-of-way and advise our Board as to what would be necessary for improving the access road, pursuant to ~80-a. Thank you for your assistance in this matter. If you have any questions, please don't hesitate to contact our office. cc: Board of Appeals Very truly yours, BENNETT ORLOWSEI, JR. , CHAIRMAN $OUTHOLD TOWN PLANNING BOARD By Diane M. Schultze, Secretary ! ~Page 24- Town Board q8/86 SUPERVISOR MURPHY: Okay, that's the end of the prepared and added-on agenda. Anyone at this time like to address the Town Board on any matter? Yes. Valerie, would you use the mike, please. VALERIE SCOPAZ SHAW: I'm q~t familiar with the procedure for addressing a questior to the Board that doesn'~t have anything to do with anything that's on the agenda tonight.- SUPERVISOR MURPHY: This is the time to do it. MS. S. HAW: Now? Okay. COUNCILMAN SCHONDEBARE: Provided it's short. MS. SHAW: This is Valerie:Scopaz Shaw. I'm a resident of Mattituck. I I~ave a question that I would like to ask the Board about a law that was passed by the Board a few months .ago, t° the best of my recollection. It happens to be Local Law No. 5 in' relation to Bed and Breakfast facilites, and I picked up a copy of this from the Town Clerk's Office, and I'm a little unsure as to what the meaning of it is, and I'm just wondering if I could ask for an interpretation as to what's being meant. SUPERVISOR MURPHY: We have our man right here. MS. SHAW: Okay. The first question is, that my understanding is that the Board of Appeals ultimately has to consider the two items that are mentioned under Sub- section 16, which is that there should not be more than three rooms in the owner- occupied dwelling, and cannot be more than six casual and transient roomers, and that the only other condition attached to that is that adequate off-street parking spaces shall be provided for the rented rooms, in addition to parking spaces for the use of family of the owner. Is that the only conditions that the Board of Appeals must consider? TOWN ATTORNEY TASKER: I think it's a Special Exception, isn't it? MS. SHAW: Yes. TOWN ATTORNEY TASKERf There is a whole section in the Town Code, other than this, where there are general conditions that must be met, and general criteria that must be considered, and it's in another section of the Code. MS. SHAW: Okay. That will explain my confusion. Okay. My second question is' this: What happens if the proposal or the request for the Special Exception is for Bed and Breakfast within a private community where road access is over a private right-of-way, as opposed to a public street? TOWN ATTORNEY TASKER: What happens? MS. SHAW: In other words, can the Board of Appeals entertain a request for a Special Exception where access to the dwelling is over a private right-of-way, as opposed to a public--dedicated public street? In other words--- TOWN ATTORNEY TASKER: There's nothing in the Code which prohibits them from considering that. MS. SHAW: I'm sorry .... Page 25 - Town Board 8/86 TOWN ATTORNEY TASI(ER: There is no prohibition against them considering such an application. MS. SHAW: I realize that. What I'm asking is, can the Board of Appeals grant permission--can the Board of Appeals grant a Special Exception in a situation where the access to the dwelling is'not over a public street? Over private property? TOWN ATTORNEY TASKER: I just finished telling'you that there is nothing in the Code which says they may not do this, so therefore, I would say that since there is nothing that prohibits it, it's not prohibited for them to consider one of these things with access over a private right-of-way. Do I make myself clear? MS. SHAW: It's not completely clear. Well, because--- TOWN ATTORNEY TASKER: There is'nothing---let me put it this way---there is nothing inthe Code that says that the Board of Appeals, in considering an application for a Bed and Breakfast, cannot consider it if its access is over a private right-of- way. There's nothing like that in the Code. So that doesn't preclude them from granting one. MS. SHAW: Well, I understand the Board of Appeals can consider any application that comes before it. The question is, does the Code address the issue--does it discriminate between, for instance, in a situation ~vhere there is no public access? Is there any requirements that the community--the private community which the applicant is~asking for permission--i'm just asking whether there's anything--- TOWN ATTORNEY TASKER: To my knowledge there's nothing specific in the Zoning Code which says that the Board of Appeals cannot grant a Bed and Breakfast permit if the only access to the facility is over a private right-of-way. Okay? MS. SHAW: Okay. Is the Board of Appeals required to obtain any sort of--or is the applicant required to obtain a waiver from the Planning Board to waiver conditions that the Planning Board may have placed on the map specifying that--- TOWN ATTORNEY TASKER: You're going far afield here. COUNCILMAN SCHONDEBARE: Valerie, I have a funny feeling, Valerie, that this is not a hypothetical question On hypothetical issues, and that you've got a specific case going before the ZBA. MS. SHAW: Right. COUNCILMAN SCHONDEBARE: Well, then I really think it's not quite fair to both parties in that matter before the ZBA to be coming before the Town Board and asking the Town Attorney questions relating to a matter going before the ZBA. MS. SHAW: Okay. I didn't mean for this to be interpreted as a---I'm not baiting anybody, okay? I just wanted to know. From my reading of the law it wasn't clear to me. I thought--and evidentially from what Mr. Tasker is say~ng, it's an open question--a legal question. Okay? TOWN ATTORNEY TASKER' No, I didn't say that either. This is the problem with hypotheticals. I didn't say it was an open question. You asked me if there was any prohibition in the Code, and I said I know of none. That doesn't make it an open question. Southold Town Board of Appeals APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. S.E o Q.R.A o ROBERT J. DOUGLASS JOSEPH H. SAWICKI NEGATIVE ENVIRONMENTAL DECLARATION Notice of Determination of Non-Significance November 20, 1986 APPEAL NO.: 3572 PROJECT NAME: MICHAEL and JoYCEMATTES 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 signifi- 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 [ ] DESCRIPTION OF ACTION:E~tablish "Bed and Breakfast Use" in owner occupied building where lodging and breakfast is provided for not more than six casual, transient roomers, and renting not more than three rooms LOCATION OF PROJECT: Town of Southold, County of, Suffolk, more particularly known as: 50 Luthers Rd., Mat~ituck .113-03-Q7 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 concerning use of the premises and is not directly related to new construction. FOR FURTHER INFORMATION, PLEASE CONTACT: Linda KowalsRi, 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 hi's agent and posted on the Town Clerk Bulletin Board. O(randoW~fi'd Cenl~r -t t~£ 2~o ,,JOf w,~l-I Ta H~w ,sl Orl'andoW'6rl'd Center ~lCHFJe:c.. PdVO 3'o¥CE ~ftTTn'Uc m BEO -B~-D ~3r~lc~a~T J~'R T H " 7/)~ I,~t I~ ?'~' X I Z ,~5..' lJ)RR LOI~ Po ~,c ~ 0 7~,¥ I'-tl .$ 0 G A.~.6.~:"O b/ ~lCH~-& ;qrup 3--o¥6~ LOTH ~ES P..oPt}:) / mPtTTES> O NEW YORK STATE erin Lehman Commissioner New York State Office of Parks, Recreation and Historic Preservation The Governor Netson A. Rockefeller Empire State Plaza · ' Agency Building 1, Albany, New York 12238 518-474-0456 September 24, 1986 Mr. & Mrs. Michael F. Mattes P.O. Box 831 Mattituck, NY 11952 Subjmct: Richard Cox House Mill Road and Luther's Road Mattituck, Suffolk County Dear Mr. & Mrs'. Mattes: We are pleased to inform you of the listing of subject property on the State and National Registers of Historic Places. Should you have any questions regarding the State and National Register program~, please write or call the Historic Preservation Field Services Bureau staff at (518) 474-0479. Sincerely, State Historic' Preservation Officer cc: (See attached list) An Equal Opportunity/Affirmative Action Agency PETER F'. COHALAN. SU~'FOLK COUNTY £xEccrr,v~: COUNTY OF SUFFOLK " OFFICE OF THE COUNTY EXECUTIVE JOHN C. GALLAGHEN July 23, 1984 Orin Lehman, Commissioner " New York State Department of Parks, Recreation and Eistoric Preservation Nelson Rockefeller Empire State Plaza Agency Building ~1 Albany, NY 12238 Dear Commissioner Lehman: Re: Richard ~ox House, Mattituck The County of Suffolk enthusiastically supports the nomina- tion of the Richard Cox Eouse to the National and State Registers . of Historic Places. Official recognition of this property will not only add substantial protective measures that will assist in preserving the structure, but will also greatly enhance the community identity of Mattituck and all of Suffolk County. ~r Thank you for your consideration of this property and for your assistance in preserving the heritage of eastern Long Island. Sincerely, COHALAN SUFFOLK COUNTY EXECUTIVE PFC:rat CC: Honorable Francis J. Murphy, Southold Town Supervisor John Chester, Commissioner, Parks Department Lance Mallamo, Historic Services Director Magdeline Goodrich, Southold Town Historian p. o. ,=,ox 620 CAPTAIN KIDD CIVIC A~-c;OCIATION Mattituck, N. Y. 11952 Oct.g.,1980 Mr. 0rin Lehman, State Historic Preservation Officer N.Y.S. Parks and Recreation, Agency Building #1 Empire State Plaza, Albany, N.Y. 12223 Dear ¥~. Re: Richard Cox House Mattituck, N.Y. Lehman: The Captain Kidd Civic Association represents the several hundred residents of the area on Cox Neck,Mattituck~ near the mouth of Matt.ituck Inlet~~ Recently our area has been the subject of unfavorable press coverage due to the pollutAon of ~ttitu~ck Creek occasioned by the leakage of certain oil tanks near the mouth. 'State and Fed- eral agencies are ~currently involved in resolving the matter and local efforts are under way to upgrade the area and its image. The home of Mr. and F~s. Michael Mattes, the Richard Cox House~ at the entrance to Cox's Neck is currently undergoing restoration and is a symbol of the revitilazation of our community, Its history has defined our area and has, in fact, given our area its name. We could thirkk of no more fitting place for the State to affirm its committment to our area than with the Rich~d Cox House. We therefor urge you Mr. Lehman, as State Historic Preservation Officer, to nominate this house for the National Register of Historic Places. Thanking you for your consideration, Nick Bolobanic President Cap't Kidd Civic Association Inc. M A T T I civic A S S I N G 0 R P 0 R A T E D BOX20~^~TU¢~.~.¥.11~2 State Historic Preservation Officer, N.Y.S. Parks and Recreation, Agency Building #1, Empire State Plaza, Albany, N.Y. 12223 October 10,1980 Dear Mr. Lehman: The Mattituck Inlet Civic Association was formed to promote the well-being of the communities surrounding Mattituck Inlet. Our sheltered harbors and charming homes make this area a haven for tourists from all over the Eastern Seaboard. It was with great pleasure, therefore', that o~r Association learned of the restoration of the Richard Cox house, one of our best-kno~m landmarks. o Mr. and Mrs. Mattes, the ov~ers of the Cox house, have spent the last two years in research and restoring their lovely historic home. The Cox family and their descendants contributed greatly to the history of our area in particular and to the history of eastern Long Island in particular. One descendant, Allan Forman, was a noted writer and editor of the Brooklyn Eagle at the turn of this century and was born, lived and work at Nabichauge Farm, as the Cox house was knovm then. His wife, the former Xesia Carlstadt, was a noted operatic prima donna in the 1890s who toured the United States e×tensively. Local residents still speak of her friendship with the noted actress L±ll±an RusselI and, later, Marie Dressier. Our area also had the famous American sculptor and furniture maker J.Q.A. Ward who was a friend and neighbor of the Cox's(Formans') and the house was the center for a great many of the area's cultural events. Indeed, President Taft was a visitor of the Formans'. ~ It is for these many reasons that the Mattituck Inlet Civic Association most strongly urges that the Richard Cox House, Nabichauge Farm, be placed on the State register of historic places and that it be no~inated by you, Mr. Lehman, to the National Register of Historic Places. This affirmation of the historic nature of our area would be received with the utmost appreciation by all of our residents. Sincerely L~dia Tort~ra, President n of Long Island Antiquities *Spring/Summer 1981 Preservation Notes mSociety for thc Preservation of Long Island Antiquities OSpring/Summer 1981 The following Long Island historic and cultural resources have been ~aved through the e. nlightened efforis of the ovmers, dedicated group~ of local citizens, and/or official action. . ~- Old Carnegie Library. Built c. 1908, architect John Van Pelt. '.~ Saved by action of the Patchogue Village Board, the , Brookhaven Industrial Development Agenc~ ,a~d Btiercliffe Secretarial School ~:~.:' ' ~: - Roslyn National Bank and Trust Co dl ~'~ ):~ ~;:  . Built 1930, architect William Bunker Tubby. i: Saved by sympathetic purchamr who converted the · .? building for his engineering firm Pmservthg the ~ , former banking chamber and its 22-foot ceiling. ~ Suffolk ~;unty Nears building. ':::~; "; :" : Built 1906, architect I.H. Gzeen Ir. Saved after a very bad f'~e by painstaking reConstmc. · : .. Marthall All tag al h ,v -- Built 1964, architect Hobby Miller of Pat~hogue. ' ' "The Game Cock," Shipman Boathouse. HHAA THE HISTORIC HOUSE ASSOCIATION OF AMERICA THE OWNERS GROUP CERTIFICATE ro attest that ~A~-~A~. ~~ has been recognized and enrolled in the Historic House Association Owners Group as a property possessing historical and architectural significance that has been well p'reserved by its owners R C~/Ov xm~ Bow Golden. Oak foyer was inspired ,:its l~talianate ¥ r,~room _is l-ligh~' e like this provides an anchor in the '~'~remarks Mike." "Especially in' ' time out here.'~ romance and history to it, and living here and To look at.their home. you would never working on it reaffirms our position in history. :. .guess that'the IS-pus room 3-bath home ,~ ltm,a, kesu,s~apartofanongoingstewardshp '. I" I ' (complete.with cupola) was once a much smaller ~ ~;:~.--' .-And'- *~Joye~ 'adds, '~"it's-'also an artistic t ]Vh°use -- but accord,ne to ,nforma!!on' the~i~endeavor~l:'guessthebottom,'~line, is'that living · ,' I ~' Mattes have gathered, it certainly was Since it .,&dna' house like this is a ho'-~- :'...2~ ' · ' ,, ' ., .~. ooy .an avocat on ' ~' ]7 ~was built around 1829, :Mike points out, it haa~,Some-:people~ coa~ct 'antiqu, cs"~d: we choose to [ undergone' thre~ major.'modifications, with thg~,liv~'inonel~:7*.~9~:~;'..~;~:~;~: PAT CLANCY :i ~ ~last weekend's NOTICE OF HEARINGS NOTICE IS HEREBY GIVEN, pursuant to ,Section 267 of the Town Law and the Code of the Town of Seuthold, the follow, ing public hearings will be held by the Southold Town Board of Appeals at the Southold Town Hall, Main Road, Soutlx- old, NY at a Regular Meeting on THURSDAY, JANUARY 8, 1987 at the following time~: 7:35 p.m. Appeal No. 3587 -- ROBERT AND EILEEN M: JOHNSON. Variance to th~ Zoning Ordinance, Article XI'; Section 100-119.2 for permission to construct addition to existing dwelling with an insufficient setback from tidal water area at premises known as 430 Corey Creek Roea %uthold, NY; Dis~ trict 1000, ,eU~n 87, Block 5, Lot 3. 7:40 p.m. Appeal No. 3594 :-. ANNE C. MASON. Variance to'~¢ the Zoning Ordinance, Article Xl, Section 100-119.2 for permis- sion to construct deck addition to existing dwelling with an insuf- ficlent setback from tidal wet- land area at premises known as 1250 Lupton Point, Mattituck, NY; District 1000, Section 115, Block 11, Lot 12. 7:45 p.m. Appeal No. 3585SE .. ALVIN AND PATRICIA ficient livable-floor area in the existing dwelling use of prop- seed northerly parcel. Zoning District: "B-1" General Busi~ ness. Location of Property: 35350 County Road 48, pecome, NY; County Tax Map parcel No. 1000-69-04-2.1. 8:10 p.m. Appeal No. 3552-- JOHN SENKO. (Hearing races- ged from December 11, 1986k Variance for ,s, hopping'ce_n~ir' use in this "B-I General I~us - COMBS. Special Exception to ness Zone with 30,084 scl. R. lot Zoning rdinance, Article the Sectwn 10O~-30(B) for perrnis: /~.i'~:a~0 p.m. Appeal No. 3572S//1 II.l, to establish "Bed and MICHAEL AND JO ~on '-~-st V~e, an O~er-O¢-( MA~rES. (Hca.nS ~ . . , an;n, other than a ~-~ ¢--m December 11, 1986). s.~1 where lodging and break // ;al Exception for B.e~..a - - :- -rovided for not more/ fast in existing buumng. _ t~? '.~JJas.al, tran.ient ~m-f S:4S p.m. Ap~l No_.~.~.?~ ~"an°'7- .i,~ofnotmorethanN. DONALD AND d peconic, NY; County Tax Map' Parcel No. 1000-74-03-24.2. 7:50 p.m. Appeal No. 3588SE MARY j. MooNEY' ~ETOFF. Special Exception to the Zoning O ~inance, Article IIL Section 100-d0(B) for permis- sion to establish "Bed and Breakfast Use, an Owner-Od- cupied Building, other than a hotel, where lodging and break- fast is provided for not more than six casual, transient room- ers, and renting of not more th~n three rooms." Location of Prop- erty: 1475 Waterview Drive, Southold, NY; County Tax Ma~ parcel No. 1000-78-007~0- 7:55 p.m. Appeal No. 3591 -- pAUL STOUTENBURGH, JR. Variance to the Zoning Orr dinance, Article llI, Section 100- 32 for permission to locate acces- sory windmill tower in excess of maximum-permitted 18 fee~ height requirement, at 4015 Skunk Lane, Cutchogue, NY; County Tax Map parcel No. 1000-96-1-6~ ,~ - 8:00 p.m. Appeal No. 3583 -- FREDERICK AND HELEN HRIBOK. Variances to the Zon- ing Ordinance, Articles: Il) II1,!' Section 100-3l for insufficiehl southerly side yard and total side yards, and (2) XI, SectiOn 100-119.2 for insutT~cient set- back from existing bulkhead along Arshamomaque Pond, for this proposal to construct garag/~ addition to existing dwelling, at 90 Carole Road, Seuthold, NY; County Tax Map Parcel Nv. the Zoning Ordinance, Articll~ III, Section 100-30(B) (100-3D for permission to convert exist- ing one.family dwelling to a two- family dwelling. Location of property: 2585 Peconic Lane, Peconic, NY; County Tax Map Parcel No. 1000-74'03'~20' The Board of Appeals will hear at said time and place all persons or representatives desir- ing to be heard in each of the above hearingS. Written come meats may also be submitted prior to the conclusion of the subject hearing. For more tofor- mation, please call 765-1809. Dated: December 11, 1986, BY ORDER OF, THE soUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER, CHAIRMAN Linde Kowalskl, Board Secretary 2TD25-5458 ~I'ATE OF NEW YORK cOUNTY OF SUFFOLK _ of Oresnport in Carcl ~ga .... a said County, being duly sworn, says that he/she Is Principal Clerk of THE SUFFOLK TIMES, a Weekly Newspaper, published et Greenport, in the Town of Southold, County of Suffolk end State of New York, end that the Notice of which the annexed is · printed copy, has been regularly published In said Newspaper once each week for weeks successively, commencing on the _ 24 day of. Dec 1986 1000-52-2-4. 8:05 pm. Appeal No. 3461. -- tlELMUT HASS. Var ances to the Zoning Ordinance, Article VII, Sections: (1)100-71, Bulk Schedule, for insufficient lot area and lot wldt~; (2i 107:707~! establishing exlstmg rcsmenua'. //~ ~ ~-" ~'~ ' i-al u~ of pro,sea southerly parcel; (3~ 100-?(A~ ~ /Prlnc~al}Clerk and 100-71 for approval of msuf- d~y of / ~ St,"'~ , ~ ;40. 4849860 ,- ~ ~ ,~. ~bma NOTICE: OF HEARINGS Nor!c.E IS !tEREBx GIV- EN, pursuant to Section 267 of the Town Law and the Code of the Town .of!Southo~d, the following pub~',,l, be held by. the ~q~#thOld Town Board of APpeals at the Southold Town Hall, Main Road, Southold, NY at a Regular Meeting on THURS- DAY, JANUARY $~ following times:~ - 7:35 p.m. Appeal No. 3587- ROBERT AND EILEEN M. J~N. Variance to toe~ ~inance, Article XI, Section 100-119.2 for permission to construct addition to existing dwelling with an Insufficient back from tidal water asea at premises known as 430 Corey Creek Road; Southold, NY; District 1000, Section 87, Block 7:40 p.m~ A~peal No. 3594- ANNE C. MASON. Variance to the Zoning Ordinance, Ankle XI, Section 100-119.2 for per- mission to construct deck addi- tion to ealStin~ dwelling with an insufficient setback from tidal wetland area at premises known as 1250 Lupron Point, Mat- tituck, NY; District 1000, Sec- tion 115, Block 11, Lot 12. 7:45 p.m~Appeal No.3585SE- ~].VIN AN~} PATRICIA ~ Special Exception to he Zomng Ordinance, Article 11I, Section 100-30(B) for per~ mission 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:' loca- tion of Property: 2500 Peconic Lane, Peconic, NY; County Tax Map Parcel No. 1000-74-03-~.2. 7:50 p.m. Appeal No. 3588SE' MARY J. MOONEY-GETOFE Special Exception to the Zoning Ordinance, Article 111, Section 100-30(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 nbt more than three rooms:' Location of Property: 1475 Waterview Drive,. Southold, NY; County Tax Map' Parcel No. 1000-78-007-20. 7:55 p.m. Appeal No. 3591- PAUL STOUTENBURGH, JR,. Variance to the Zoning Or-. dinance, Article 111, Section 100-32 for permission to locate accessory windmill tower .in ex- cess of maximum-permitted 18 feet height requirement, at 4015' Skunk Lane, Cutchogue, NY;' County Tax Map Parcel No.. 1000-98-1-6. 8:00 p.m. Appeal No~ 3583J~' FREDERICK AND NELEN HRIBOK. Variances to the Zon- mS"nS'~ance.,Anicles: (1) ltL' Section 100-31 for insult Southerly side lmrd und.N~al side yards, and (2) Xi, Section' Arshamomaque Pond, for this, dition to ~dstii~ dwelling, at ~0 Carol¢ Ro~d, Southold, NY; County ~ Map Parcel No. 1000-~2-2-4. C~NTY OF SUFFOLK ss: STATE OF NEW YORK Patricia Wood, being duly sworn, says that she is the Editor, of THE LONG ISLAND TRAVELER-WATCHMAN, a public 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 T/r,~veler-Watchman once each week for ........................... weeks successively, commencing on the ........ . .'~...~. ~ ..... day of .. .~-<~.. ·. Sworn to before me this ~-~ ~// ~ ..................... day of ~z~-~,.,_,~__ 19 ~" 8:05 p.m. Appeal No. 3461- .... ' ..... HELMUT HASS. Variances ~ Notary Public BAR!~ARA FORBES l',~ot,wy l'lil, t!, St,re of New York Qlall~,?i ,1 in ~ulJ¥1k County the Zoning Ordinance, Article V1L Sections: (1) 100-71, Bulk Schedule, for insufficient lot. area and lot width; (2) 100-70(A) establishing existing residential use as principal use of propos- 'ed southerly parcel; (3) 100-?0(A) and 100-71 for ap- proval of insufficient livable;. floor area in the existing dWell, ins use of proposed northerly parcel. Zonin~ District: "B-l" General Business. Location of' Property: 35350 County Road, 48, Peconic, NY; County 'Pax Map Parcel No. 1000-69-04-2.1; 8:10 p.m. Appeal No. ~552- JOHN SENKO. (Hearing recessed from December 11, 1986). Variance for shopping- cent' use in this "ILl" General Business Zone with 30,084 scl. ft. ~t area. 8:30 p.m. AppealNo.3572SF_.~,~ MICHAEL AND JOYCE MATTES. (Hearing recessed from December 11, 1986). Special Excepiion for Bed and' Breakfast in existing building. 8:45 p.m Appeal No. 3584SE- DONALD AND JOAN~q~ RfITER. Special Exception 'the Zonin~ Ordinance, Article III, Section 100-30(B) (100-31) 'for permission to convert ex- isting one-family dwelling to a two-family dwelling. Locati°n of Property: 2585 Peconic Lane; Pecouic, NY; County Tax. Map Parcel No. 100Q-74-03-20. The Board of Appeals hear at said time and place all persons or representatives desir: ing to be heard in eai:h of the above hearings. Written com- ments may also be submitte~l · prior to the conclusion of the subject hearing. For more intor~ marion, please call 765-1809.' Dated: December 11, 1986' BY ORDER OF THE, SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER, CHAIRMAN Linda Kowaiski, Board Secretary IT-12/25/86(6) m~.~t~.~.~a: ~quipment. Location of Property: West Side of Tabor NOTICE OF HEARINGS NOTICE IS HEREBY GIV- EN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the following public hearings will be held by the ~ Main Road, Southold, NY at a Regular Meeting commencing at 7:30 p.m. on THURSDAY, NOVEMBE~R 201 1986 and is fiali6ws: 7:35 p.m. Appeal No. 3573- JO P ~ Variance to the Zoning OrdI~mce, Article III, Section 100-32 for permission to locate accessory garage structure in the frontyard area at premises located on the south side of a private right-of-way extending off the east side of Camp Mineola Road, Mattituck, NY; County Tax Map Parcel No. 1000-123-06-17. 7:40 p.m. Appeal No. 3571- MARGARET AND JOSEPH BEST. XMriance to the Zorfing Ordinance, Article X1, Section 100-119.2 for permission to con- struct addition at the southerly side of existing dwelling with in- sufficient setback from the bulkhead along tidal water area and insufficient setback from the rear property line at premises located on the south side of a private right-of-way ex- tending off the east side of Camp Mineola Road, Mat- tituck, NY; County Tax Map Parcel No. 1000-123-06-17. 7:45 p.m. Appeal No. 3568- .STAMATIOS AND A,.LENI KAPANA'KIS. Special Excep- tion~o the Zoning Ordinance, to establish one accessory apart- ment in the existing dwelling structure in accordance with the requirements of Article III, Sec- tion 100-30(B) subsection [15]. Location of Property: 2030 Boissean Avenue, Southold, NY; County Tax Map District, 1000, Section 55, Block 6, Lot 40. 7:50 p.m. Appeal No. 3569- BOATMEN'S HARBOR I~ARINA. Variance to the Zon- ing Ordinance, Article Xl, Sec- tion 100-119.2 for permission to construct addition to existing dwelling with an insufficient set- back from existing bulkhead. Location of Property: 3350 West Creek Avenue, Cutchogue, NY; County Tax Map District 1000, Section 110, Block 01, Lot 12. 7:55 p.m. Appeal No~ 3572- MICHAEL AND JOYCE MATTES. Special Exception to the Zoning Ordinance, Article III, Section 100-30-(B)[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."Loca- tion of Property: 50 Luthers Road, Mattituck, NY; County Tax Map District, 1000, Section 113, Block 03, LOt 7. 8:00 p.m. Appeal No. 3565- FRANK FIELD REALTY INC. Variance to the Zoning Or- dinance, Article Ill, Section 100-3 for permission to establish two-family dwelling use on a parcel of land containing less than 160,000 sq. ft. in area, 270 ft. lot width, 400 ft. lot depth, and with insufficient frontyard, sideyard, and rearyard setbacks. Location of Property: 320 Lin- nett Street, Greenport, NY; Map of Greenport Driving Park No. 369, Lots No. 71 and No. 72; County Tax Map District 1000, Section 48, Block 2, Lot 36.1. 8:05 p.m. Appeal No. 3566-SE. FRANK FIELI) REALTY INC. Special Excep- tion to the Zoning Ordinance, Article Ill, Section 100-30 (B)for permission to establish two- family use at premises referred to as 320 Linnett Street, Green- port, NY; Map of Greenport Driving Park No. 369, Lots No. 71 and 72; County Tax Map District, 1000, Section 48, Block 2, LOt 36.1. 8:10 p.m. Appeal No. 3570-SE- PAUL HENRY. Special Exception to the Zoning Ordinance, Article III, Section 100-30(B)[16] for permission to establish "Bed and Breakfast · Use;' "an owner-occupied building, nther than a hotel_ Road, Orient, NY; County Tax Map District, 1000, Section 18, Block 05, LOt 12. "B-Light" Business Zoning District. 8:20 p.m. Appeal No. 3552- JOHN .SENKO. Reconvene hearing concerning Variance for shopping center use in this B-I General Business Zoning District containing 30,084 sq. ft. in lot area. Location of Proper- ty: Intersection of Ackerly Pond Lane and North Side of Main Road, Southold, NY; County Tax Map District, 1000, Section 70, Bl6ck 7, Lot 1. 8:40 p.m. Appeal No. 3574- DR. JOHN LORETO. Variance to the Zoning Ordinance, Arti- cle III, Sections 100-30 and 100-32, and Article XI, Section 100-119.2, for permission to construct storage building with an insufficient set-back from bluff along Long Island Sound for storage purposes ac- cessory and incidental to the ex- isting dwelling adjacent to these premises. Location of Proper- ties: Lots No. 3 and No. 2, Map of Vista Bluff No. 5060; North Side of Glen Court, Cut- chogue, NY; County Tax Map District, 1000, Section 83, Block 1, Lots 9 and 8. 8:55 Appeal No. 3562- ANA G. ST1LLO. Variances: (1) to the Zoning Ordinance, Article III, Section 100-31, for approval of insufficient lot area, width and depth of three parcels in this pending Minor Subdivision, and (2) to New York Town Law, Sec- tion 280-a for approval of access over private right-of-way exten- ding from the north side of Main Road to the premises in question. Location of Property: At' the north end of private right-of-way (along lands of B. Brokaw), North Side of Main Road, Orient, NY; County Tax Map District, 1000, Section 14, Block 2, LOt 26, containing 3.2 acres total. 9:05 p.m. Appeal No. 3519- STEVEN SANDERS & ANO. Variance to the Zoning Or- dinance, Article 111, Section 100-31 for approval of insuffi- cient lot area, width and set- backs in this pending set-off division of land. Location of Property: Private Right-of-Way located off the north side of Bay View Avenue, Mattituck, NY; County Tax Map District, 1000, Section 106, Block 06, Lot 36. The Board of Appeals will hear at said time and place all persons or representatives desir- ing to be heard in each of the above hearings. Written com- ments may also be submitted prior to the conclusion of the subject hearing. For more infor- mation, please call 765-1809. Dated: November 3, 1986 BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER, CHAIRMAN Linda Kowalski, Board Secretary 1T-11/13/86(1) / sworn, says that she is the qD TRAVELER-WATCHMAN, t Southold, in Suffolk County; the annexed is a printed copy, .ong Island Traveler-Watchman ............ : ...... weeks :he / ~ ................... day o~ y Public ;?,F. PARA SoutholdBoard of Appeals Town APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. ROBERT J. DOUGLASS JOSEPH R. SAWlCKI TO WHOM IT MAY CONCERN: Concerning your recent application filed with our office, please find enclosed a copy of the Legal Notice as published in the local and official newspapers of the Town of Southold, to wit, the Suffolk Times and the L.I. Traveler-Watchman indicating the date and time of your public hearing. Please have someone appear in your behalf at the time specified in the event there are questions brought up during the public hear- ing and in order to prevent any delay in the processing of your application. If you have any questions, or if you would like to review your file prior to the hearing, please do not hesitate to either stop by our office at the $outhold Town Hall, or by calling our secretary, Linda Kowalski, at 765-1809 (or, if no answer, 765-1802). Yours very truly, Ik Enclosure GERARD P. GOEHRINGER CHAIR~,IAN Page 3 - Mailing List Public Hearings January 8, 1987 Southold Town Board of Appeals Copies by mail to the following on or about 12/19/86: Mr. and Mrs. Robert E. Johnson, 40-24 208th St., Bayside, NY 11361 Bob Koch & Son, for Anne C. Mason Woodcliff Drive, Mattituck, NY 11952 Mrs. Anne C. Mason, 709 Vivienda West Blvd, Venice, FL 33595 Mr. and Mrs. Alvin Combs, 2500 Peconic Lane, Peconic, NY 11958 Mrs. Mary J. Mooney-Getoff, Box 377, Southold, NY 11971 Mr. Paul Stoutenburgh, 4015 Skunk Lane, Cutchogue, NY 11935 Mrs. P.C. Moore, Rudolph H. Bruer, Esq., Main Road, Southold, NY 11971 for Mr. and Mrs. Frederick Hribok Samuel J. Glickman, Esq., ll4 Main Street, Greenport, NY 11944 for Mr. Helmut Hass J. Kevin McLaughlin, Esq., 828 Front Street, Box 803, Greenport, NY 11944 for Mr. and Mrs. Donald Ritter Stephen R. Angel, Esq., 108 E. Main St, Box 279, Riverhead, NY ll901 Daniel C. Ross, Esq., Main Road, Box 1424, Mattituck, NY 11952 Mr. Garrett A. Strang, R.A., Box 1412, Southold, NY 11971 Barbara L. Coughlin, Esq., McNulty, Dipietro & Haefeli ?~em 130 Ostrander Avenue, Riverhead, NY 11901 for Mr. and Mrs. Mattes Mr. and Mrs. Douglass Shaw, Breakwater Road, Mattituck, NY 11952 Mr. and Mrs. Henry Haan, 340 Breakwater Road, Mattituck, NY 11952 Mr. and Mrs. Michael Mattes, 50 Luther Road, Box 831, Mattituck 11952 Z.B.A. Members Posted on the Town Clerk Bulletin Board Z.B.A. Office Bulletin Board 12/19/86 Building Department 12/19/86 Suffolk Times 12/22/86 L.I. Traveler 12/22/86 12/19/86 NOTICE IS HEREBY GIV- EN, pununnt to S~tlon 267 of the Town Law and the Code of the Town of Southold, the held by the at the Southold Town Hall, Main Romt, Southold, NY at a Regular Meetin~ on Thursday, December 11, 1986, commenc. ina at the followh~ times: 7:35 p.m. Appeal No. 3216- to the Zonin_m Ordinance, Anl. cie I11, Section 100-30(A) Ill for' permission to establish seCOnd dwellins unit upon 9.8+ a~re Location of Property: South Side of Sound Avenue, Mat- tituch, NY; Lot No. 4, Minor Subdivision of Strawberry Fi, Ids, which received Sl~ctch Plan approval July 8, 1985 by the Town Plannin8 Board; County lkx Map Parcel, 1000-121-3-5 (containin~ 12.64- heres). 7:40 p.m. Appeal No. 3577. FRANK AND DELORE,q ~ Variance to the ins Ord~nunce' Article IlL Sec- tion 100-32 for permission to ~cplace accessory shed,in the COUNTY OF SUFFOLK SS: STATE OF NEW YORK Patricia Wood, being duly sworn, says that she is the Editor, of THE LONG ISLAND TRAVELER-WATCHMAN, a public newspaper printed at Southold, in Suffolk County; and that the notice of which tile annexed is a printed copy, has been published in said Long Island ~raveler-Watchman once each week for ................. : ......... weeks successively, commencing on the Sworn to before me this ~ ~ ..................... day ot .......... .~.~.% ':'~...*W. ..... 19 ~/~ No. 15, Map of Nassau ~ filcd March 28. 193~; County i.~ '. 8:10 pm. Appeal No. 3557- Tax Map Parcel N0.~ [ ~OBERT O. EOAN. Vmiance 1ooo-io~-3-2. . r, [ i tome~:tCon,'iUon~Apt~:~ 7:45 p.m. Appeal No. 3578- [:=: ~ 11/3/86 under APpeul ARTHUR ESSLINOER, ~ No. 3557 to allow reconstruction Variance to the Zonins Ok- !, ofdv~ with insuffident set- dinance. Article XI, Section !, bicks upon foundation as esists 100-119.2 for permission, to i= at5 and 12 feet, rather than 7 locate accessory storase shed and 12 feet, at 330 Knoll Circle, within 75 feet of existina.~ bulkhead and wethnd~ ar~ nt 1515 Arshamomaque Avenue,:' Southold, NY; Lot No. 21, Map, Map Pardi No. IO00.~IL ~ 7:50 p.m. Appeal No. 35T~- Notary Public Subdivision Lots 27 and part of ' 28; County Tax Map District, '~ 10OO, Section 37, Block 5, Lotl2 ~1~ p.m. Appeal No. 3552- ,' JOHN SENKO, Variance for CHARLES AND SANDRA ' ~ center use in this B-I BLAV~ t~..~..~r~ · ..... , ~ ~ Business Zone with Access nurmant ro New Y~rk [~ ~. ft. of lot nr~a (recess- Town Law, Section 280-n from [ ..M from 11/2,0/86), the east side of South Harbor,/[ ~['he Bolud of Appeals will Lane alon~ OIdW_.o~ls Path ~4ihe~ at ~aid time and. pla.ce ,all (Private Road No. 10), t6':~t~ ~ pef~.m, or.rep?e, ntatt?n.?- ,~remises known and --fer,-~ °" ~"~ ~ to oe nea~ tn each ot the as 695 Old WoOds Path, ,:~, ,,~t0yve neann~. ,written com- Southold, NY; County']]tx lVlap ,, ~. ~lts may also De suomitted Parco No. 1000-87 i 23.7[ ~ ® i~ ';prior to the conclusion of the 7:55 p.m. Appeal No. 3580; ~'. '' subj~t hearins. For more mfor- BABALIS ~?~ ~ maltion, plea0e call 765-1809, ~ar,..ceNICHO~ASto the ZOulns O/-' i i i'~'/Pa~: Hov~mber 20, 198~ dinance, Article 111, Sectioli ~, , BY ORDER OF THE . ~, , ' SOUTHOLDTOWN 100-31 for permission to ~on- :~, ¢ ,, BOARD OF APPEAL.q struct new dwellin~ with insuf- ficient northerly side yard and ~ GERARD P, GOEHRINGER,~ CHAIRMAN insufficient total sideyards at ,*t! tt:~ ,: ! . Linda KowulskJ, 3360 Rocky Point Road, East Marion, NY;, County ~ Map. ,, IT-12/4/86(49) df rcel No. 1000-21-04-09. . ~ ...... · 8:oo p.m. Appeal ,No. 3572- lCtiA~L AND ~ Spe~d E~eption. Bed and Breakfast (recessed) from 11/20/86) · ~ -~' BARBARA FORBES Notary -Public, State of New York No. 48a;S.J6 Qualified in Suffolk County Commi..:sion Exp'res~fl ~ / 19 ~"~ NOT]CE OF HEARING~ NOTICE IS HERE[~ GIVEN, pursuant to Secti..on ~ of the Town Law and the Code eT the Town of Southold, the follow. lng public hearings will be held by ~he SOUTHOLD TOWN BOARD OF APPEALS at the i~'~a Dec,;Il, 1986, commenc- ing at the following times: 7:3~ p.m. Appeal No. 3216 - EUGENE DAVISON. Vari- : anco to the Zoning Ordinance, , Article III, ~tion for permission to establish sec- i end dwelling unit upon 9.8-~ a¢~ parcel over existing horse stable. Lo~ation of Propertyz ~outh Side of Sound Avenue. Mattitock, NY; Lot 4~, Minor Subdivision of ~. ~rawborry Fiekl~ which received 6ketch Plan approval July 8, 1985 by the Town Planning Board; County Tex Map Parcel No.' 10~}- 121-3.5 (containing , 7i40 p.m. Appeal No. 3577-~ FRANK AND DELORES DAVIF~S. Variance to tho · lng Ordinance, Article IIL tion 100-32 for pormlmion to m- 8:10 p.m. Appeal No. 3557 place ac~e~ory shed in th~north ROBERT G. EGAN. Variance sideyard area at 2285 Pine ~ i to amend Conditional Approval · ~qoed, Culchogue, NY; Lot ~15~ Rendered 1 I/3/86 under Appeal Map of N~m~au Fornm filed N.. 3557 to allow reconstruction March 2~, 1935; County Tax I ofdwelling with insufficient set- Map Parcel No. 1000-104-3-2. . back~ upon fbundation a.~ cxisLs 7:45 p.m. Appeal No. 3578 -' at 5 and 12 feet, rather than 7 ARTHUR EBSLINGER. Vari- and 12 feet, at 330 ,~noll Circle, once to the Zoning Ordinance, i:,.~ East~ Marion, NY; 'Map of Sec- Article XI, Section 100-119.2for , tion Two, Gardiners Bay permission to locate accessory ~ tales," Subdivision Lots 27 and storage shed within 75 feet of existing bulkh~d and w~lands area at 1515 A~ha~maque Avenue, ~ut~ld, NY; ~t Map of Beix~on Es~s;~ County Tax Map Pa~l No. 1~-3.11. 7:~ p.m. A~I No. ~79 - CH~ ~D S~D~ B~. Va~an~ for Appeal of A~ ~ant ~ New York T~n ~w, ~on ~a f~m ~ ~e~t ~e of ~u~ Hair ~ a~n~ OM W~ Path (~i. k~n a~ mfo~ ~ ~ 69~ Old W~ Path, ~uthold~ NY; .C~nty Tax ~p P~I N~. 7:~ p.m. A~I No. NICHO~ BABA~K Vari; A~i~l~ HI~ ~ti~ 1~31 for wrmi~n .~ ~ct new d~lling ~i~ insu~cient no~ ~etly sj~ ~n~ and i~cien~ ~1' ~yn~ at 33~ ~int ~. E~t Marion. NY; ~unty Tnx Map Panel 8:~ p.m. Apda[ No. ~72 - ICHAEL AND , JOYCE A~' 8~ial Ex.prisa. sad B~ak f~t ~m 1 lf~/~L STATE OF NEW YORK ) ) SS: COUNTY OF SUFFOLK ) Carol Sgarla~a of Greenpoft, In said County, being duly 8worn, says that he/she Principal Clerk of THE SUFFOLK TIMES, a Weekly Newspaper. published at Greenport, in the Town of Southold. County of Suffolk and State of New York. and that the Notice of which the annexed Is a printed copy. has been regularly published In said Newspaper once each week for one weeks successively, commencing on the day of Dec 19 ~ Principal Clerk ~-~'' ~ AN /'~./~:~ ~ NOTARY PUBLIC, State of New York ~ ~ ~ ~'~ Suffolk County No. 4849860 Term Expires Februar~l. 9~C>~y TM part of 2~: County 'Fax Map Dis- trict 1000, Section :17, Block 5 g:15 p,m Appeal No 3552 - JOHN SENKO. Varkmce for General Busine~ Zone with from 11/20/86h The Boa~ of Appeals will hear at ~id time and place all lng ~ be hea~ in each of the a~ve hearings. Written com- ments may al~ he submitt~ prior to the conclusion of' the subj~t hearing. Fgr more infor- marion, please call 765-1809. Dat~: Novem~r 20, 1986. BY ORDER OF THE ~UTHOLD TOWN BOARD OF APPEAI~ GERARD P. GOEHRINGER, CHAIRMAN Linda Kowals~i, Boa~ of ~re~ Southold Town Board of Appeals MAIN ROAD- STATE ROAD 25 SOUTHOLD, l.l., N.Y. 11971 TELEPHONE (516) 765-1809 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. EOBERT J. DOUGLASS JOSEPH H. SAWlCKI TO WHOM It MAY CONCERN: Enclosed herewith as confirmation of the time and date of the public hearing concerning your recent application is a copy of the Legal Notice as published in the L.I. Traveler- Watchman, Inc. and Suffolk Weekly Times, Inc. Someone should appear in your behalf during the public hearing in the event the're are questions from board members or persons in the audience. Please be assured that your public hearing will not start before the time allotted in t.he Legal Notice. If you have any questions, please feel free to call our office, 765-1809. Yours_ v e r y.~J. ~/~z Gl~RARD P. GOEHRINGER CHAIRMAN Enclosure Linda .Kowalski Secretary and Board Clerk JUDITH T. TERRY TOWN CLERK REGISTRAR OF VITAL STATISTICS OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 728 Southold, New York 11971 TELEPHONE (516) 765-1801 October 29, 1986 TO: Southold Town Zoning Board of Appeals FROM: Judith T. Terry, Southold Town Clerk Transmitted herewith is Zoning Appeal No. 3572, application of Michael & Joyce Mattes for a Special Exception. Also included is notification to adjacent property owners; Short Environmental Assessment Form; Certificate of Occupancy for Non-conforming Premises; and survey of property. Judith T.Terry Southold Town Clerk Page 4 Notice of Hearings (Notification Southold Town Board of Appeals Regular Meeting - November 20, 1986 List) Copies to the following 11/6/86: Mr. and Mrs. Joseph Best, Camp Mineola Road, Box 609, Mattituck, NY 11952 Mr. and Mrs. Stamatio Rapanakis, North Bayview Road, Southold, NY 11971 Mr. Dennis Ketcham, Manager, Boatmen's Harbor Marina, 3350 West Creek Ave., Cutchogue, NY 11935 Mr. and Mrs. Michael Mattes, 50 Luthers Road, Mattituck, NY 11952 (P.O. Box 831) Frank A. Field Realty, Inc., Box 631, Greenport, NY 11944 Mr. and Mrs. Paul Henry, 236 North Road, Box S, Greenport, NY 11944 Charles R. Cuddy, Esq., Attorney for Mrs. B.D. Schriever Esseks, Hefter, Cuddy & Angel, Box 279, Riverhead, NY 11901 Stephen R. Angel, Esq., Attorney for Mr. J. Senko Esseks, Hefter, Cuddy & Angel, Box 279~ Riverhead, NY 11901 Dr. and Mrs. John Loreto, Box 41, Cutchogue, NY 11935 Rudolph H. Bruer, Esq., Attn: Mrs. P.C. Moore~'Attorney Main Road, Southold, NY 11971 Rudolph H. Bruer, Esq., Attn: Mrs. P.C. Moore, Attorney and Schwartz, Main Road, Southold, NY 11971. for A. Stillo for Sanders Town Clerk Bulletin Board Z.B.A. Office Bulletin Board Building Department Z.B.A. Individual Files Z.B.A. Board Members Personal Deli-very - Suffolk Times and L.I. Traveler-Watchman Legal Notices NOTICE OF HEARINGS NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the follow- ing public hearings will be held by the SOUTHOLD TOWN BOARD OF APPEALS at the Southold Town Hall, Main Road. Southold, NY at a Regular Meet- ing commencing at 7:30 p.m. on THURSDAY, NOVEMBER 20, 1986 and as follows: 7:35 p.m. Appeal No. 3573 MARGARET AND JOSEPH BEST. Variance to the Zoning Ordinance, Article III, Section 100-32 for permission to locate accessory garage structure in the frontyard area at premises located on the south side ora pri- vate right-of-way extending off the east side of Camp Mineola Road, Mattituck, NY; County Tax Map Parcel No. 1000-123- 06-17. 7:40 p.m. Appeal No. 3571 - MARGARET AND JOSEPH BEST. Variance to the Zoning Ordinance, Article XI, Section I00-119.2 for permission to con- struct addition at the southerly side of existing dwelling with sufficient setback from the bulk- head along tidal water area and insufficient setback from the rear property line at premises lo- cated on the south side of a pri- vate right-of-way extending off the east side of Camp Mineola Road, Mattituck, NY; County Tax Map Parcel No. i000-123- 06-17· 7:45 p.m. Appeal No. 3568 TAMATIOS AND ALENI ~;APANAKIS. Special Excep- tion to the Zoning Ordinance, to establish one accessory apart- ment in the existing dwelling structure in accordance with the requirements of Article III, Sec tion 100~301B) subsection 115]. Location of Property: 2030 Bois- seau Avenue, Southold, NY; County Tax Map District 1000, Section 55, Block 6, Lot 40. 7:50 p.m. Appeal No. 3569 - BOATMEN'S HARBOR MA- RINA. Variance to the Zoning Ordinance, Article XI, Section I00-I 19.2 for permission to con- struct addition to existing dwell- ing with an insufficient setback from existing bulkhead. Loca- tion of Property: 3350 West Creek Avenue, Cutchogue, NY; County Tax Map District 1000, Section 110, Block 01, Lot 12. 7:55 p.m. Appeal No. 3572 - MICHAEL AND JOYCE MATTES. Special Exception to the Zoning Ordinance, Article IIL Section 100-30-(B~116] for permission to establish "Bed and Breakfast Use," "an owner-ocuc- pied 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 6f Property: 50 Luthers Road, Mattituck, NY; County Tax Map District 1000, Section 113, Block 03, Lot 7. 8:00 p.m. Appeal No. 3565 - FRANK FIELD REALTY INC. Variance to the Zoning Or- dinance, Article III, Section 100- 3i, for permission to establish two-family dwelling use on a parcel of la~,d containing less than t60,Ot fl. m area, 270 ft. lot widt. .00 ,ft. lot depth, and with insufficient I~ontyard. sideyard, and rearyard setbacks. Location of Property: 320 Lin- nett Street, Greenport, NY; Map of Greenport Driving Park #369, Lots #71 and #72; County Tax Map District 1000, Section 48, Block 2, Lot 36.1. 8:05 p.m. Appeal No. 3566-SE. FRANK FIELD REALTY INC. Special Exception to the Zoning Ordinance, Article Iii, Section 100-30(BI for permission to establish two-fhmily use at premises referred to as 320 Lin- nett Street, Greeniport, NY; Map of Greenpert Driving Park #369, Lots #71 and #72; County Tax Map District 1000, Section 48, Block 2, Lot 36.1. 8:10 p.m. Appeal No. 3570-SE - PAUL HENRY. Special Ex- ception to thfi Zoning Ordinance, Article III Section 100-3019)[ for permission to establish "Bed and Breakfast Use," "an owner- occupied building, other than a hotel, where lodging and break- fast is provided for not more than six casual, transient room- ers, and renting of not more than three rooms." Location of Prop- erty: 236 t68555 C.R. 481 North Road, .at intersection with McCann Lone, Greenport, NY; County Tax Map District 1000, Section 033, Block 05, Lot 13.1. 8:15 p.m. Appeal No. 3576 - BARBARA D. SCHRIEVER. Application to withdraw Vari- ance conditionally approved under Appeal No. 3393 on Sep- tember 26, 1985, and to reinstate in full the 1969 Vari- ance conditionally approved under Appeal No. 1260, permit- ting the use of a 5,600 sq. ft ex~sting building Ibr storage and repair of contractnr's machinery and equipment. Location of Prnperty: West Side of Tahor Road, Orient, NY; County 'Fax Map District 1000, Section lg, Bb)ck 05, Lot 12. "B-Light" Busi- ness Zoning District. 8:20 p.m. Appeal No. 3552 - ,JOHN SENKO. Reconvene hearing concerning Variance shopping center use in this B-1 General Business Zoning Dis- trict containing 30,084 sq. ft. in 10t area. Location of Property: Intersection of Acker]y Pond Lane and North Side of Main Road, Southo]d; County Tax Map District 1000, Section 70, Block 7, Lot 1. 8:40 p.m. Appeal No. 3574 - DR. JOHN LORETO. Vari- ance to the Zoning Ordinance, Article Ill, Sections 100-30 and 100-32, and Article XI, Section 100-119.2, for permission to con- struct storage building with an insufficient setback from bluff along Long Island Sound storage purposes accessory and incidental to the existing dwell- ing adjacent to these premises. Location of Properties: Lots #3 and #2, Map of Vista Bluff #5060; North Side of Glen Court, Cutchogue, NY; County Tax Map District 1000, Section 83. Block 1, Lots 9 and 8. 8:55 p.m. Appeal No. 3562 - ANA G. STILLS. Variances: Ill to the Zoning Ordinance, Ar- ticle III, Section 100-31, for ap- proval of insulllcient lot area, width and depth of three parcels m this pending Minor Subdivi- sion, and (2) to New York Town Law, Section 28(}-a Ibr approval of access over private right-al'- way extending t?om the north side uf Main Road te the prem- Prnperty: At the north end of lands of B. Brokawl, N(~rth Side el Main Road, Orient, NY; County Tax Map District 1000, Section 14, Block 2, Lot 26, con- teining 3.2 acres total. 9:05 p.m. Appeal No. 3519 - STEVEN SANDERS & ANS. Variance to the Zoning Ordi nance, Article III, Section 100- 31 for approval of insufficient lot area, width and setbacks in this pending set-off division of land. Location of Property: Private Right-of-way located off the north side of Bay View Avenue, Mattituck, NY; County Tax Map District 1000, Section 106, Block 06, Lot 36. The Board of Appeals will hear at said time and place ali lng to be heard in each of the above hearings. Written com- ment.s may also be submitted prior to the conclusion of the subject hearing. For more inlbr- mation, please call 765-1809. Dated: November 3, 1986. BYORDEROF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD p. GOEHRINGER, CHAIRMAN Linda Kowalski, Board Secretary ITN13-5412 STATEOFNEW YORK ) ! SS: COUNTY OF SUFFOLK ) Carol Sgarlata of Greenport, in said County, being duly sworn, says that he/she is Principal Clerk of THE SUFFOLK TIMES, a Weekly Newspaper, published at Greenport, in the Town of Southold, County of Suffolk and State of New York, and that the Notice of which the annexed is a printed copy, has been regularly published in one said Newspaper once each week for. weeks successively, commencing on tho 1 3 day of ~,~o~ 19 R~ / Principal Clerk Sworn to before~ne this ~ /) ./ /'t qO~ARY PUBL~C, Sta~?6~6n BOARD OF APPEALS, TOWN OF SOUTHOLD In the Matter or the Petition of to the Bo~d of Ap~als of the Town of Southold TO: CYD D, ~aNCIFORTE ~R~OT 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 $outhold to request a (Variance) (~p~ecia. I Excepti~ (Special Permit) (Other) [circle choice] 2. That the property which is the subiect of the Petition is located adjacent to your property and is des- cribed as follows: .~f3 LU TH,='~'.~ ~(3~ D 3. That the property which is the subject of such Petition is located in the following zoning district: I~E.~I DE'N T IIqL 4. That by such Petition, the undersigned will request the following relief: 5. That the provisions of the Southold Town Zoning Code applicable to the relief sought by the under- signed are Article ~: Section Io~- 30 F~I~ f ] Section 280~A, 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. (53.6) 765-].809. 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 su.¢h hearing in the Suffolk Times and in the Long Island Traveler-Mattituck Watchman, newspapers published in the Town of Southold and designated for the publication of such notices; that you or your representative have the right to appear and be heard at such hearing. ~-----~..;. ~.~ ~ (~.~ ~--~ " Petitioner Owners' Names :/t//c/./.,mrL ./- ..ta?,¢~,, /l~.,A~ Post Office Address 'ID ~ [~RI~CI FO,~TEE -.r PROOF OF MAILING OF NOTI~F '~TTACH CERTIFIED MAIL RECEIPTS ADDRESS STATE OF NEW YORK ) COUNTY OF SUFFOLK) SS.: .TI~/')V("F r~)~TT~<~ , residing at .%/~ LUTHER% /'~Ft TTI .TI) CK..; /~lJ.) ~'//3 ~ K' , being duly sworn, deposes and says that on the ,-~ day of I'V' .-r. , 19 ~'~, , 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 $outhold; that said Notices were mailed at the United States Post Of- ficeat /)~-rTITI.IC.~' . I~I'~LO ',/(~l~ (certified) (registered) mail! ' Sworn to before me this day of ; that said Notices were mailed to each of said persons by Notary Public/] ~,~ rhts side does not have to be completed on form transmitted to adjoining owners.) BOARD OF APPEALS, TOWN OF SOUTHOLD In the Matter ot the Petition of : to the Board of Appeals of the Town of Southold : TO: HENgV ,q/I~D mlqR¥ O'E/qN HRFt K/ NOTICE TO ADJACENT PROPERTY OWNER YOU ARE HEREBY GIVEN NOTICE: 1. That it is the intention of the undersigned to petition the Board of Appeals of th~ Town of Southold to request a (Variance) (bpecial Exception'} (Special Permit) (Other) [circle ch~Jice] 9 ; ). 'Z. l'hat the property which ia the sub'~ect o4 the Pet%t'~on '~s %ocs%ed ad\scent to ,four propert,Y a~d %$ des- ct'~bed as ~o1~o~%: 3. That the property which is the subject of such Petition is located in the following zoning district: 4. That by such Petition, the undersigned will request the following relief: 5, That the provisions of the Southold Town Zoning Code applicable to the relief sought by the under- signedare A:tJ.cle ~ Section. Ion--. ,R~ [ ] Section 280-A, 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. (5'16) 765-3.809. 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 hear!ng 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: tha the right to appear and be heard at such hearing. . t you or~y_~ur representative have Owners ' Names: Post Office Addr~s RECEIPT FO,q PROOF OF MAILING OF NOTICF t%.r't, H~'~.'~ ~:~P ~RY~fa~H~ACH CERTIFIED ~IL RECEIPTS ~ ADDRESS STATE OF NEW YORK ) COUNTY OF SUFFOLK ) SS.: · 'T'i~V.c~r)I.~TT~,C~ , residing at ~'0 LUTUE~?g ffII~T'FIT~Jr.~_ , ~U) ~ .beln~dulysworn, deposes and says that on the ~q day of Or~ ,19 q(~ , deponent mailed a true copy of the Notice set forth on th% re- verse side hereof, directed to each of the above-named persons at the addresses set opposite thor respective name; that the addresses set opposite the names of said persons are the addresses of said persons as shown on the current ass~sment roll of the Town of Southold; that said Notices were mailed at the United States Post ~- rice at ~TTI TI J( ~ , ~1 ~ ~ ~ ~ ;that said Notices were mailed to each of said persons by (certified) (regi~ere~) m~ilf ' ' Sworn to before me this ';~' dayof ~ , 19 ~" Notary Public ~fANI,EY A. ClERACH, JR NOTAR'Y ~__SL{C,_ ~tat~ of N~ yMk (This side does not have to be completed on form transmitted to adjoining property owners.} 'fhe ~I.Y.S.~lviron:nell~al Quality Ih:vital Act rc(,ir~:; sub- . ,,..,:~ ,~....~,.,.,. ,.. .... ..... . . . . . . .....~ ...,s~:, ~r~ar~r ~11! use ccrrent17 ~wtlob~o ~o~ctcn conce~ln~ the ~roJec~ ~nd *h~ "~'~' . .'. '..: .: · '.~;..., ~... - ,..,. Z~ an7 qu~s%ton hoe been answered Yea tho project · '. - ... . .".: ~a)~ ~.,.?;j .-:y Zlkolg tPJt th~3 project ~3 '",'. ~JCnl~lcant,.... , . .. . · ,,, W~I project roa~C In · large physical ckan~e -. to the project site or physically alter more vnu~ual land ~o~ fo~ on tho 31%e7 . , * · Yah ~ No ': ;~:':" .;. , .it ..... · · .~ ]. W~1 project alter or ~ve a large effoc~ on · ' '~t: . ,,.,t .. . ' ' "';'., .'' &. W~% proJec~ h~vo a potentially largo Lmpa~ on quality? Y ~, W~l project si~lf~cantly offec~ dr3ina~o '"" 6. '*'tll project affect any thre~tencd or endangered .,,c. . - plant or anh%ll ~pecle~? . . '.%.-~' .. . ~ _ ,t,~,,:";~. ' ' 7. W~I proJec~ ro~t in a major adverse effect on ":'~ 8, W~i proJec~ have a =a Jot effoc5 on vlouol cha~ '" kno~ %o bo ~porCan~ ~o tho co~.~unlt7? : 9. Will proJec: adver=ely ~pact any 3iCe or 3C~JC~ . · p,,~,, .~.... ' ' :": ufa Of hiacorl:, pro-bioforce, or palboncoiogtcul .... l~ortance or any alto doal~,a~od aa a crttlcnl '~;.:'.! enviro~en~l area by a local agonc7? * * .. 10. '~: project haw a ~aJor effect cn exlut~g el .... ' 11. Will project result ln'~JJor Lrafrlc prob:eao or 12. Will projoc: red.afl7 cause oblectlonabl~ anco an a re~t or the project's operation? . Ye~ 1). WILl project have any lap. c: on public health or ~afety" ' ' ' ' ' ' ' ' * · ., Ye~ 1L. Wl!l project gffect the exlutln6 co~mit7 by t:cn of moro than 5 percent over a on(~yoar ,. period n~ have a 7a jot n.:g~ve effect on tF.e ' ist. }00 MC. lock ot /o 7 %1 · CONSULT YOUR LAWYER BEFORE ~IGNING THIS INStRUMENT--THIS INSTRUMENT SHOULD BE USED By LAWYERS ONty. THIS INDENTURE, m~de the ~ ~ g'% day of November, nineteen*hundred and se~enty'-eight, BETWEEN EDGAR MARVIN and ARLENE MARVIN, his wife, both residing at Horton's Lane (no street number), Southold, New~ 11971, [/1 F[7 FT-] EEl FFT'I ve 12 pan'yofthefirstpa~,and MICHAEL F. MATTES and JOYCE A. MATTES, both residing at White Spruce Drive (no street number), New York 11792, his wife, Wading River, party ofthe second pa~, WTTNESSE-FH, thatthe party ofthe first pa~,in consideration of TEN AND 00/100 ........ ............................ ($10.00) .......................... dollars, lawful money oftheUnitedStates, and other good and 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 for the party of the second part forever, AL/thet certain plot, piece or parcel of land, with the buildings and in~provements thereon erected, situate, lying andbeing~'t!li[x at Mattituck, in the Town of. Southold, County of Suffolk and State of New York, bounded and described as follows: BEGINNING at the corner formed by the intersection of the northerly side of Mill Road with the easterly side of ~uther's Road and from said point of beginning; RUNNING THENCE along the easterly side of Luther's Road, North 5 degrees 37 minutes West, 267.20 feet; THENCE South 86degrees 49 minutes 20 seconds East, 295.00 feet; THENCE South 01 degrees 37 minutes 50 seconds West, 260.00 feet to the northerly side of Mill Road; THENCE North 87 degrees 44 minutes O0 seconds West along the north- erly side of Mill Road, 261.20 feet to the corner at the point or place of BEGINNING. TOGETHER wi~a right of way over a 25 foot strip of land running from the southerly side of Mill Road to Mattituck Creek, more particularly bounded and described as follows: BEGINNING at the northwesterly corner of the parcel herein described distant the following three courses and distances from a monument situate at the intersection Of the southerly line of Mill Road and the westerly side-of Jackson's Imnding; 1. North 88 degrees 02 minutes 20 seconds West, 41.20 feet; 2. South 69 degrees 04 minutes 40 seconds West, 3.0 feet; 3. North 87 degrees 44 minutes West, 297.0 feet; THENCE from said point of beginning running along the southerly side of Mill Road South 87 degrees 44 minutes 00 seconds East, 25 feet to a point and lands n~ of Marvin; - AR]-HUR J. FELICE THENCE RUNNING South 3 degrees 39minutes East, 115.0 feet more or less to the ordinary high water mark of Mmttituek Creek; THENCE in a westerly direction along the ordinary high water mark of Mattituck Creek, 25 feet more or less to lands now or formerly of Sullivan; 'THENCE along said last mentioned lands, North 3 degrees 39 minutes, West 117.69 feet to the point or place of BEGINNING. TOGETHER with a right of ingress and egress in conm~on with others to and from Luthers Road over a 25 foot right of way the southerly line of which is the northerly line of the premises herein described, and which line runs the following course and distance, to wit: South 86 degrees 59 minutes 20 seconds East 295.00 feet. ARIHUR J. F£LICE February 10, 1978 ~ichard Cron, Esq. Main Road Cutchogue, New York 11935 Dear Mr. Cron: The following action was taken by the Southold Town Planning Board at a regular meeting held January 30, 1978. RESOLVED to grant approval to the map of the subdivision of land of which Arlene Marvin is the contract vendee, located at Mattituck, New York, subject to: 1. Provision being made to control erosion on the lots facing Mill Road. 2. Covenants and restrictions being filed in the Suffolk County Clerk's Office as to no further subdivision. Yours truly, Muriel Brush, Secretary Southold Town Planning Board 1 '41 .:~ Iv% tLL 5-0 LI.'THER$ t~.ORD /trlt~TZl TUCI<,, , / FORM NO. i TOWN OF $OUTHOLD BUILDING DEPARTMENT Town Clerk's Office Southold, N. Y. Certi[icnte O[ Occupancy prior No. Z 9306 Date ......... ~9Y.e."~.~b..e.r. .~ ?, ..... , 19.7.~i. · '..,:~ .;.. ;?.. THIS CERTIFIES that the building located at ~,x ..aL.;at . c .~. ~'1~.,~.~. l.l.i.l, 1.. ~treotxP, oad on Lot 1 of Edqar _~ ~rlgne Marvin% Mt,~or Subdivision No. 149 l~f~fliX XXXXXXXX X X ]ttlll~K ~X X XX. XX X X HHlg,'4Y~X ................................. REQUIRE.,.~tENTS FOR A NON-CONFO.~IING TWO -FAMILY DI/ELLING built conforms substantially to the to C~:~T~FZCA?~': OF OCCUPA.~C¥ tii~i~x t%P.g~-~-..~, 19. ~?. pursuant to which:~il~llli~[YlFdittitt No ..:.~. '.,.. dated .. !l.o.v..~'-.~.q:r...1.7.,.... 19'/!}.., was issued, and conforms to all of the require- ments of the applicable provisions of the law. The occupancy for which this certificate is issued is a Non--Con£o~: ~in9 'I',,,'c,---f,a~i 1,' .~,~ .L.].~:?0.*' The certificate is issued to . EDGAR MARV'[N £. !4I].'L' . " (owner, 'l~'gi~:~i!.'t~ffaiit ) of the aforesaid building. Suffolk County Department of Health Approval . .P. !tf.':l."'.x.I.S.':i~:'? .................... UNDERWRITERS CERTIFICATE No. pl~2.- EXIST£; X] HOUSE NUMBER 50 Street Break'.'~ter ilo. id, !~attiL,~:k, New York lO00-113-3-part of Lot 7 ...................................... Building Inspector *This does not cover the dwelling sitting on the line of Lot No. 1 and Lot No. 2 which must be'removed. m taken by the Sou~]old To~x Planntnc · . .~. 21, 1977. of the minor subdivision 14, 1977, subject to access will be from the .and rea~rictions be ben, laced on With completed (~) COUNI'Y OF SUFFOLK L°~,Pr $OU~HOLD t ,,~,,..,~ ':'° Property Tax Service Agencyi'qt~:"'s~?' ' 106 ' DECLARATION made this day of Z~/f'z' ~ EDGAR MARVIN and ARLENE MARVIN, residing at Hortons Lane, 1978, by Southold, New York, hereinafter,called the "Owners"; WHEREAS, the Owners havetitle to certain lands situate, lying and being at Mattituck, in the Town of Southold, County of Suffolk and State of New York, said lands hereinafter being more particularly de- scribed; and WHEREAS, it is the Owners' intention that the aforesaid land be subdivided into a minor subdivision consisting of not more than four (4) residential lots; NOW~ THEREFORE, the following described lands shall be re- stricted as hereinafter set forth: ALL that certain~plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being at Mattituck, in the Town of Southold, County of Suffolk and State of New York, bounded and described as follows: BEGINNING at the corner formed by the intersection of the northerly side of Mill Road with the easterly side of Luther's Road, and from said point of beginning; running thence along the easterly side of Luther's Road, the following two (2) courses and distances: 1) North 5 degrees 37 minutes West 267.20 feet; 2) North 24 degrees 07 minutes West 150.0 feet to land of Sledjeski; running thence along the souther~and easterly side of land of Sledjeski~ the following two (2) courses and distances: 1) South 72 degrees 17 minutes East 188.50 feet; 2) 'North 0 degrees 28 minutes 30 seconds West 278.0 feet; running thence South 81 degrees 13 minutes 20 seconds East the their heirs, successors and assigns, along the southerly side of land of Sledjeski and land of Bergen 345.50 feet to land of Remuzzi; running thence along the westerly side of land of Remuzzi, and land of Gesswein, and LotS 24, 25 and 26 as shown on "Map of Jackson's Landing" MaP No. 5280, the following two (2) courses and distances: 1) South 2 degrees 11 minutes 10 seconds East 313.0 feet; 2) South 8 degrees 05 minutes 40 seconds East 190.32 feet to the northerly side of Mill Road; running thence along the northerly side of Mill Road, the following two (2) courses and distances: 1) South 69 degrees 04 minutes 40 seconds West 223.76 feet; 2) North 87 degrees 44 minutes West 261.20 feet to the corner, the point or place of BEGINNING. DECLARANTS do hereby warrant, covenant and represent that on approval of the aforesaid described lands as a minor subdivision by the Planning Board of the Town of Southold, no further applicaticm will be made to that Board os to any other Board in the Town of Southold to further subdivide any of the lots set forth in said minor subdivision. DECLARANTS do hereby further warrant, covenant and represent that the aforesaid described lands within the minor subdivision cannot be subdivided into more than four (4) lots and that each lot shall compri~ an area of not less than 40,000 square feet, with one residence. DECLARANTS do hereby further warrant, covenant and represent that foregoing restrictions and agreements shall bind the undersigned and any and all person or persone who shall succeed on said ownersh P to the i of any of the lots shown -2- aforedescribed premises in said minor subdivision by transfer or otherwise. and seals IN WITNESS WHEREOF, the Declarants have caused their hands to be affixed this day of 1978. STATE OF NEW YORK SS.: COUNTY OF SUFFOLK On the /~ day of ~ft , 1978, before me personall came EDGAR MARVIN and ARLENE MARVIN, to me known and known to me to the individuals described in and who executed the foregoing instrume~ and ackno~dged to me that they execute~'the'~sa~e'~. .cao~ ' ......................... I nn l[ ................... lit n ............... i f ....... ]'lllil~i .......... ~il ~i] Southold Town Planning Board Town Hall Southold, New York 11971 Re: MARVIN minor subdivision Gentlemen: The following statements are offered for your consideration in the review of the above-mentioned minor subdivision and its referral to the Suffolk County Planning Commission: (1) No grading, other than foundation excavation for a residential building is proposed. (2) No new roads are proposed aud no changes will be made in the grades of the existing roads. (3) No new drainage s~ructures or alteration of existing structures are proposed. Yours truly, Arlene Marvin ~-~-' ~ ~// Februar7 10, 1978 Richard 'Cron, Esq.. Main Road Cutchogue,' New York 11955 Dear Mx-. Cron= The following action was taken by the Southold Town Planning Board at a regular meeting held January 50, 1978. RESOLVED to grant approval to the map of the subdivision of land of which Arlene Marvin is the contract vendee, located at Mattituck, New York, subject 1. Provision being made to control erosion on the lots facingMill Road. 2. Covenants and restrictions being filed in the Suffolk County Clerk's Office as to no further subdivision. Yours truly, Muriel Brush, Secretary Southold Town Planning Board SUPREM; COURT -~'I'ATE OF NEW YORK ~on ~R'Ne~;~SPECI4~I~'ERMoPART I SUFFOLK COUNT~ Ju~ti~ MOTION DATE April 20th 1987 In the Matter of the Application'of* CYD BRANCIFORTE, For a Judgment Pursuant to Article 78 of the Civil Practice Law and RUleS, Petitioner," -against- MD · FLTF't./PET',~ ATTY: ' See Memorandum Decision DE FT'$/R E~P*~ ATTY: SOUTHOLD TOWN BOARD OF APPEALS, GERARD P. GOEHRINGER, CHAIRMAN, CHARLES GRIGONIS, JR., SERGE DOYEN, JR., ROBERT J. DOUGLASS and JOSEPH H. SAWICKI, Respondents. Upon the following pape~ numbered I to fi read on this motion to annul d~t~minatin~ Notice of Motion/~hvd~'~Y'~h~ and ~uppordn*g papers ] -~ : Notice of Crou Motion · and supporting papers ; Answering Affidavit~ and wpporfing paper~ Rep~ying Affidavits and supporting papers ' = Other memo of 'ORDERED that this petition is decided to the extent indicated in the Hemo~andum Decisior~ (Gerard, J.) dated June l?, 3987, Dated: June 17, 1987 SUPREME* COURT.'.SUFFOI-K C(~TY .... NIEMORANDUM SPECIAL "~M In the Natter of the Appltcatioi of CYD BRANCIFORTE, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, Petitioner, -against- SOUTHOLD TOWN BOARD OF APPEALS, GERARD P. GOEHRINGER GERARD, J.S.C. ~AT£D June 17th INDEX ~ ~7-6035 .MD P. ART %' PERRI CAROL FITTERMAN, ESQ. ' Attorney'for Petitioner 39 Old Coach 'Road East Setauket, N.Y. 11733 SMITH, FINKELSTEIN,.LUNDBERG, and YAKABOSKI, ESQS. Attorneys for Respondents 456 Griffing Avenue Riverhead, New York 11901 ISLER Petition is dismissed. This proceeding pursuant to Article 78 of the CPLR seeks an order of this Court annulling a determination of the Zoning Board of Appeals of the To~ of Southold dated January 8, 1987 which granted a special exception pursuant to Article III, Section 100(30)(B)(16) of 'the Zoning Code to Michael and Joyce Mattes. The special exception allowed the Mattes to utilize their premises located at 50 Luthers Road, 'Mattituck as a "bed and breakfast" establishment. The petitioners are property'owners adjaceQt to the western boundary of the Mattes' premises. Initially, the respondents contend that the petitioners did not properly effectuate service of the papers and therefore the Court lacks personal Jurisdiction over the respondents. CPLR 312 provides that "personal service upon a board or commission having a chairman or other presiding officer, secretary or clerk, by whatever official title he is called, may be made by delivering the summons to'him." (The Court notes that CPLR 311 is inapplicable to the facts of this case). The Courts of this state have consistently required strict compliance with the statutory procedures for-the institution of claims ~gainst the'State and its governmental'subdivisions and where the legislature has designated a particular public officer for the receipt of process, the Courts are without authorization to substitute another, even if the petition is later redeltvered to the proper person. (See,Franz v. Bd. of Ed. of Page £iwo~d Union Free School trtct, 112 A.D.2d 93&, .Y.S52d &52 (2nd Dept., 1985); Heinisch v. Goehrzn~er, 121A.D.Zd 721 (2nd Deprt., 1986); McDonald v. Ames Supply Co., 22 N.Y.2d 111, 11&-115). In this case, the petitioner served the papers on Judith'T. Terry, the Town Clerk and Mary Ann Cybulski, Clerk on March 20, 1987 in an effort to obtain personal jurisdiction over the Southold Town Board of Appeals. Clearly, the Town Clerk is not an individual authorized to receive aervice for the Town Board of Appeals pursuant tO the statutory requirements of CPLB-312. The Clerk for the Town Board of Appeals.ts Linda Kowleski and '~ary Ann Cybulski is a part- time clerical employee of the Town of Southold. In her affidavit, . which is not contradicted, Mary Anny Cybulski stated to the petitioner's process server that the Clerk for the Board of Appeals was ou{ to lunch and that she was not authorized to receive service for the Board of Appeals· It appears that rather than wait for the return of Linda Kowleski, the process server left the papera with Mary Ann Cybulskt and there is no proof that the Clerk or any of the Board Members were served with the petition thereafter. Based upon the foregoing, the Article 78 proceeding is dismissed for. lack of personal jurisdiction over the respondents due to the failure to comply with the statutory requirements for service set forth in CPLR 312. The case of Shedlin v. State Tax Commission~ 62 A.D.2d 806, g06 N.Y.S.2d 596 (3rd Dept., 1978) cited by the petitioners in support of their claim of effective service la inapplicable to this proceeding since it is distinguishable on the facts. J.S .C. AFFIDAVIT OF SERVICE BY MAIL STATE OF NEW YORK COUNTY OF SUFFOLK KAREN M. RAFFEL , being duly sworn, deposes and says: ! am not a party to this action and am over 18 years of age. reside at Main Road, Aquebogue, New. York 11931 On June 30 , 19 8% Z served the within ORDER AND MEMORANDUM DECISION WITH NOTICE OF ENTRY upon the following attorney(s) for the party or parties indicated at the address designated by said attorney(s) for that purpose by depositing a true copy thereof, enclosed in a postpaid properly addressed envelope, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York: Nar. e of Attorney(s) Served PERI CAROL FITTERMAN, ESQ. Representing Petitioner Address 39 Old Coach Road East Setauket, NY 11733 Sworn to before me this 1st day of July , 1987. No%ary Public KELLY N. McGANN NOTARY PUBLIC, State of New York No 4875248. Suffolk County Commission Expires Nov. 3, 19 ..~ KAREN M. RAFFEL ROBERT W. TASKER Town Attorney TELEPHONE (516) 477-1400 425 MAIN STREET · P.O. BOX 697 GREEN-PORT, L.I., NEW YORK 11944 March 31, 1987 Town of Southold Zoning Board of Appeals Town Hall, Main Road Southold, New York 11971 Attention: Ms. Linda Kowalski Re: Branciforte v. Southold Town Board of Appeals, et al. Dear Linda: Enclosed herewith is a copy of a Notice of Petition and Verified Petition, together with a copy of my letter to Frank Yakoboski relative to the same. Yours very truly, ROBERT W. TASKER RWT/jr Enclosure ROBERT W. 'FAS KER 425 MAIN ST~ET * P.O. BOX 697 GREE~ORT, L.I., NEW YORK 11944 TELEPHONE (516) 477-1400 March 31, 1987 Francis J. Yakoboski, Esq. 456 Griffing Avenue Riverhead, NY 11901 Re: Branciforte v. Southold Town Board of Appeals et al. Dear Frank: Enclosed herewith is a copy of a Notice of Petition and Verified Petition which was received by me by ordinary mail on Saturday, March 21. There may be a question of service upon the wrong person, since the Board of Appeals, as far as I know, has not been served with this Notice and Petition. Yours very truly, ROBERT W. TASKER RWT/j r Enclosure cc: Town of Southold Zoning Board of Appeals Supreme Court, Suffolk County Full title of action In the Matter of the Application of CYD BRANCIFORTE, for a Judgment Pursuant to Article 78 of the Civ~ Practice Law & Rules, Index No. Date Purchased REQUEST FOR JUDICIAL INTERVENTION For Clerk Only Name of assigned judge Petitioner(:O against Dam of assignment SOUTHOLD TOWN BOARD OF APPEALS, GERARD P. GOEHRINGER, CHAIRMAN, CH*.RnES GRTGON S, JR., SERG ROBERT J. DOUGLASS ant DOYEN, JR., JOSEPH H. SAWICKI,'--"'"~' {4su ' ned (date , ) (checki ap/Micab/e) · ~ , ~[l~f particulars served (check if applicable) I~ t[a~: qi(~,of, Newcyork only: ~ '~Th,e ~iliy'ol~ l~q'York is a party to this act on /irey0h~aVr?~)~ [3 ~[b~ ~'~nsi'i" ,A~/h~rity (or MABSTOA)is a piny 1o thi~ action [] Request. for preliminary conference. . /I)1' ~' O [,~'~' ex partea pplication . [] Note of tssue and/or certtficate of readiness [~./tl~ I~6c¢ of petition (return date ..._&p. ltl,.].__.2. Q.~... 19.~ ~. ......... [] Notice of motion (return date ............................................................. )5~/t ~[ Relief sought &ll.lt~.l~..._d.e g~.l%milaa C io~ .~)I~....,.S ~l,H;ho Re,,ef sough, ......................................................................................... · . ..................................................................... =:. ............................................................................................................................. [] Notice of medical malpractice action [] Order to show cause [] Notice of demal malpractice action (Clerk will enter return date .................................................................... ) [] Statement of net worth Relief sought .................................................................................................... [] 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): ............................ i ......... PROCEEDING (check) Special Proceedings f'l ]'ax certiorari [] Condemnation [] Foreclosure [] Incompetency or conservatorship Other special proceeding, including but not limited to: 121 Article 75 (arbitration) [] Article 77 (express trusts) I]: Article 78 [] Other (specify):....._'. ............................................ :.! ..................................... [] Matrimonial (contested) [] Matrimonial (uncontested) OTHER ACTION [] Contract [] Other (specify): ........................... . ...................... Instructions: Attach rider sheets if necessary to provide required information. If any pat~y is appearing pro ~r (without an #tlorney}, the required information concerning such party is lO be entered in the space pravided for anorneys. Attorney(s) for plaintiff(s)/petitioner(s) Name PERRI CAROL FITTERMAN Address 39 Old Coach Road East Setauket, NY 11733 Phone 516-689-6770 Attorney(s) for defendant(s)/respondent(s) Name ROBERT W. TASKER _Address, 425 Main Street, P.O. Greenport, NY 11944 Box 697 Phone 516-477-1400 Name of insurance carriers (if applicable and available) RELATED CASES (if none, write "NONE" below) Title. Index # Court Nature of relationship Da~ed :......14 ai~ e.h...i.l~.9 T...t..9 8.7. ............. PERRI CAROL'FITTERMAN, E~SQ. Auorney(s) for Pet it'~one:' Office & P.O. Addrce~ · .39 Old Coach Road East Setauket, NY 11733 . PERRI CAROL FITTERMAN SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK In the Matter of the Application of CYD BRANCIFORTE, for a Judgment Pursuant to Article 78 of the CPLR, Petitioner, against - SOUTHOLD TOWN BOARD OF APPEALS, GERARD P. GOEHRINGER, CHAIRMAN, CHARLES GRIGONIS, JR., SERGE DOYEN, JR., ROBERT J. DOUGLASS and JOSEPH H. SAWICKI, Respondents. STATE OF NEW YORK COUNTY OF SUFFOLK AFFIDAVIT OF SERVICE I, Lynn Cavalla, being sworn, say: I am not a party to the action, am over 18 years of age and reside at Middle Road, Bayport, New York 11705. On March 19, 1987 I served the within Request for Judicial Intervention by depositing a true copy thereof in a post-paid wrapper, 3n an official depository under the exclusive care and custody of the U.S. Postal Service within New York State, addressed to the attorney for the Respondents herein as follows: ROBERT W. TASKER, ESQ 425 Main Street P. O. Box 697 Greenport, NY 11944 Sworn to before me on March 19, 1987. ~I~TARY PUBtlC $1~*~ ~1 N~w ~YNN CAVALLA SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK in the Matter of the Application of CYD BRANCIFORTE, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, Petitioner, against SOUTHOLD TOWN BOARD OF APPEALS, GERARD P. GOEHRINGER, CHAIRMAN, CHARLES GRIGONIS, JR., SERGE DOYEN, JR., ROBERT J. DOUGLASS and JOSEPH H. SAW1CKI, Respondents. NOTICE OF PETITION Index # Judge Assigned: Upon the annexed Verified Petition of CYD BRANCIFORTE verified on the 19th day of March, 1987, the undersigned will move before a Special Term of this court located at Griffing Avenue, Riverhead, New York on the 20th day of April, 1987 at 9:30 A.M. in the forenoon, or as soon thereafter as counsel may be heard, for an order annulling the determination of the Zoning Board of Appeals of the Town of Southold entered with the Town Clerk of the Town of Southold on February 23, 1987, and for such other and further relief as this court may deem necessary, just, and proper Dated: March 19, 1987 East Setauket, New York PERRI CAROL FITTERMAN, ESQ. Attorney for Petitioner 39 Old Coach Road East Setauket, NY 11733 516-689-6770 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK In the Matter of the Application of CYD BRANCIFORTE For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, Petitioner, - against - SOUTHOLD TOWN BOARD OF APPEALS, GERARD P. GOEHRINGER, CHAIRMAN, CHARLES GRIGONIS, JR., SERGE DOYEN,.JR., ROBERT J. DOUGLASS and JOSEPH H. SAWICKI, Respondents. VERIFIED PETITION TO REVIEW AND ANNUL THE DETERNINATION OF THE SOUTROLD TOWN BOARD OF APPEALS Index Petitioner, CYD BRANCIFORTE, as and for her petition in this proceeding under and pursuant to Article 78 of the CPLR to review the determination of the Respondents herein, alleges the following: 1. Petitioner is, and at all been, the owner of certain real has Southold, County of Suffolk, State of New York, more cally known as 49 East Marlene Lane (also known as times hereinafter mentioned property in the Town of specifi- Mill Road), Mattituck, New York. at all times hereinafter.mentioned were and constitute the Zoning Board of Appeals of the Town thereto appointed as required by law. As used in this 2. Respondents, GERARD P. GOEHRINGER, CHARLES GRIGONIS, SERGE DOYEN, JR., ROGERT J. DOUGLASS and JOSEPH H. SAWICKI, and now are members of of Southold, Petition, uoless otherwise expressly stated, the term "Board" means and is intended to mean said Zoning Board of Appeals of the Town of Southold. 3. The Town of Southold adopted Article III §100(30)(B)(16) of its Town Code, allowing special exceptions to its zoning ordinances in order to facilitate the establishment of "bed and breakfast" establishments. 4. Upon information and belief, on or about October 26, 1986, Michael Mattes and Joyce Mattes, his wife, as alleged OWners of premises known as 50 Luthers Road, Mattituck, New York, and designated as District 1000, Section 113, Block 03 and Lot 7, and adjacent to the west of premises owned by Petitioner herein, applied to the Zoning Board of Appeals of the Town of Southold for a special exception pursuant to Article III §100 (30)(B)(16) of the Southold Town Code. 5. The said matter designated as application number 3572 came on for a public hearing before the Board on or about November 20, 1986. At the hearing, Mr. and Mrs. Mattes appeared on behalf of the application, and adjoining homeowners appeared opposition thereto. 6. Upon information and belief, adjourned to December 11, 1986. 7. Upon information and belief, the after again adjourned until January 8, 1987. 8. At the close of the public hearings, to grant the application of Mr. and Mrs. Mattes exception requested. the hearing was thereafteer hearing was there- the Board voted for the Special - 2 - by the decision of the Board the Town Clerk on of Petitioner has been, is being, 9. Petitioner is aggrieved rendered 3anuary 8, 1987 and entered with February 23, 1987. 10. The real property and will continue to be permanently injured and damaged by the granting of a special exception to the applicants herein. 11. Attached hereto and made part hereof as Exhibit "A" is a survey of Petitioner's property dated April 13, 1985. As the survey indicates, Petitioner's only access to her property is via a 25 foot right-of-way off Luther's Road. This 25 foot right-of-way was a prerequisite of the original subdivision plan involving the four homes now off Luther's Road, including the home of the Petitioner and the applicants, Mr. and Mrs. Mattes. Use of this right-of=way and the 25 foot right-of-way south of the subject parcel giving access to Mattituck Creek are deeded to applicants and all other adjoining property owners. Ail adjoining owners are responsible for maintenance of both rights-of-way. 12. Petitioner is unable to obtain insurance to cover use of these rights-of-way when they are used as public access roads, rather than private roads. The granting 'of the Mattes application necessarily invites the public to use these hereto- fore limited rights-of-way. 13. While the grant of the Board states that ingress and fifteen feet away from such contention is in that the Mattes' circular driveway intersects egress shall be from Luther's Road only the northerly line of the right-of-way, unrealistic and overlaps grant makes Petitioner contends potential guests of the 25 foot right-of-way. Furthermore, the Board's no mention of the right-of-way to Mattituck Creek. that this right-of-way invites use by the the bed and breakfast establishment. Needless to say, if any of these guests were involved in an accident as of the use of either right-of-way, Petitioner would be the face given on 16. of the testimony given at the hearing and evidence behalf of adjoining property owners. The granting of the special exception was not warranted a result named as a party to any litigation brought by such guest. 14. Petitioner's home has been appraised at $350,000.00, which appraisal is based on the residential location of the subject parcel. The change of use of the adjoining property to commercial, rather than residential, is tantamount to a rezoning of the property to commercial, resulting in the dimunition of Petitioner's property value. 15. The Board granted the special exception despite the fact that the record is void of any testimony clearly proving that the applicants met the requirements of the Southold Town Code. The Board's findings and decision attached hereto as Exhibit "B" state in ~onclusory terms that the proposed use of the applicants (1) does not prevent the orderly and reasonable use of the ad- jacent property, (2) does not adversely affect the safety, welfare and comfort, convenience and order of the Town, and (3) is in harmony with and will promote the general purposes and intent of the Town zoning. These conclusory statements fly in by the facts, was illegal, unjust, arbitrary, capricious, unauth- orized and not supported by substantial evidnece, contrary to the provisions of the ordinances of the Town of Southold and not in harmony with the general purpose and interest thereof. 17. The decision of the Board does not secure the public health, safety and general welfare. 18. Thirty days have not elapsed since the filing of the decision of the Board with the office of the Clerk of the Town of Southold. 18. No previous request for the relief herein has been made. WHEREFORE, it is respectfully requested that this court annul the determination of the Southold Town Board of Appeals granting special exception to applicants Mattes for use of premises adjoining Petitioner's property as a "bed and breakfast" establishment, together with such other and further 'relief as to this court may seem necessary, just and proper. Dated: March 19, 1987 East Setauket, NY TO: ROBERT W. TASKER, ESQ. 425 Main Street P.O. Box 697 Greenport, NY 11944 516-477-1400 PERRI CAROL FITTERMAN, ESQ. Attorney for Petitioner 39 Old Coach Road East Setauket, NY 11733 516-689-6770 - 5 - IV /O/F' AF~LENE MARVIN /~IILL EXHIBIT A DEPARTMENT OF' PLANNING COUNTY OF SUFFOLK Hichael A. LoGrande 360-5206 LEE: E. KOPPELMAN Town of Southold Zoning Board of Appeals February 28, 1987 Pursuant to the requirements of Sections 1323 to 1332 of the Suffolk County Charter, the following application(s) whichhave been referred to the Suffolk County Planning Commission are considered to be a matter for local determination. A decision of local determination should not be construed as either an approval or a disapproval. Applicant(s) Municipal File Number(s) Michael & Joyce Mattes Robert E. Johnson 3572 3587 Very truly yours, Lee E. Koppelman Director of Planning GGN:mb S/s Gerald G. Newman Chief Planner DECLARATION OF COVENANTS AND RESTRICTIONS KNOW ALL MEN BY THESE PRESENTS, that the Declar- ants, HENRY HAAN and MARY REGINA HAAN (hereinafter, "the Haans"), and DOUGLAS SHAW AND VALERIE SHAW (hereinafter, "the Shaws"), and MICHAEL F. (hereinafter, "the Mattes"), this agreement as a blanket property owned by the Haans Schedule "C"; WHEREAS, the Declarants, MATTES and JOYCE MATTES do hereby declare and file encumbrance on the real and further described in the Haans, are the owners property located County of Suffolk of record of certain real in the Town of Southold, New York, as described on the attached Schedule and at Mattituck, and State of WHEREAS, the Declarants, the Shaws, are the owners of record of certain real property located at Mattituck, in the Town of Southold, County of Suffolk and State of New York, as described on the attached Schedule "B", and WHEREAS, the Declarants, the Mattes, are the owners of record of certain real property located at Mattituck, in the Town of Southold, County of Suffolk and State of New York, as described on the attached Schedule "C", and WHEREAS, the above-mentioned parcels were created as a result of a subdivision approved by the Planning Board of the Town fo Southold on April 17, 1978, a map of which is attached as Schedule "D", and WHEREAS, the Declarants, the Mattes, have applied to the Zoning Board of the Town of Southold for a special exception to operate pursuant to Article 3 Town of Southold owned by them and "C", and, WHEREAS, as a bed and breakfast facility S100-30(B)16 of the Code of the in the dwelling located on the premises described in the attached Schedule a condition of said special exception, the Declarants must file certain covenants and restric- tions in the office of the Clerk of the County of Suffolk, NOW THEREFORE, the Declarants declare as follows: (1) That the off-street parking area provided for the transient residents of the rented rooms and for the use of the Mattes family or any subsequent owner, located on the premises described in Schedule "C", shall be screened by a contiguous and uninterrupted row of evergreens not less than si~ (6) feet in height and not less than ten (10) feet in width to be located along the entire length of.the northerly boundary line of the premises owned by the Mattes and described in Schedule -2- and which line forms the boundary between the owned by the Mattes and described in Schedule owned by the Haans and described in Ingress and egress by both the transient of the rented rooms and the Mattes family, premises "C" and the premises Schedule "A" (2) residents described in of the driveway access to the and any subsequent owner of the premises Schedule "C", shall be solely by way depicted in Appendix "D" which gives premises from Luther's Road at the Southwesterly corner of the premises owned by the Mattes. (3) Neither the transient residents of the rented rooms nor the ~Mattes family nor any subsequent owner of the premises described in Schedule "C" shall have access over the 25-foot right of way depicted in Schedule "D" nor over any portion of the Haan property described in Schedule "A" (4) None of the transient residents of the rented rooms on the Mattes' premises described in Schedule "C" shall be permitted to use the right of way over a 25-foot strip of land running from the southerly side of Mill Road to Mattituck Creek', more particularly bounded and described as follows: Beginning at the northwesterly corner of the property owned by the Haans, described in Schedule "A" distant the following three courses and -3- distances from a Monument situate at the intersection of the southerly line of Mill Road the westerly side of Jackson's Landing; (a) North 88 degrees 41.20 feet; (b) South 69 degrees 3.0 feet; and and 02 minutes 20 seconds west 04 minutes 40 seconds west (c) North 87 degrees 44 minutes west 297.0 feet; thence from said point of beginning running easterly along the southerly side of Mill Road 25 feet to a point and lands now or formerly of Marvin; thence running South 03 degrees 39 minUtes east 115.0 feet, more or less, to the ordinary high water mark of Mattituck Creek; thence is a westerly direction along the ordinary high water mark of Mattituck Creek, 25 feet, more or less, to the lands now or formerly of Sullivan, thence along said last-mentioned lands north 03 degrees 39 minutes west 115.0 feet to the point or place of beginning. (5) No sign located on the Mattes' property described in Schedule "C", shall make reference to the commercial or "bed and breakfast" use of the dwelling on those premises. Such sign shall not exceed feet in width and feet in height and shall be of a type and style in conformance with the historical nature of the dwelling. The sign shall in no way be lighted. (6) The length of stay. of the transient residents of the rented rooms at the Mattes' premises described in Schedule "C" shall not exceed, under any circumstances, two consecutive weeks in any 12-month period. -4- 7 The covenants and restrictions contained herein shall be deemed to run with the land and shall be binding on and shall inure to the benefit of all subscribing hereto, their successors, grantees, heirs and assigns, and all claiming under them. If ~ny party hereto, his or her successors, grantees, heirs or assigns shall violate or attempt to violate any of the covenants or restrictions herein, it shall be the right and duty of any other party hereto, his or her successors, grantees, heirs and assigns to prosecute any actions or proceedings in law or in equity against the corporation, person or persons violating or attempting to violate any such covenant or restriction either to prevent it, him, her or them from so doing, to abate the act of any violator, or to collect damages for such violation. NOW, THEREFORE, IN WITNESS WHEREOF, the parties hereto have set their respective hands and seals on the day of December, 1986. MARY REGINA HAAN HENRY HAAN VALERIE SHAW DOUGLAS SHAW JOYCE MATTES MICHAEL F. MATTES -5- STATE OF NEW YORK) ss: COUNTY OF SUFFOLK) On the day of December, 1986, before me personally came HENRY HAAN and MARY REGINA HAAN to me known to be the individuals described in and who executed the foregoing instrument and acknowledged to me that they executed the same. Notary Public STATE OF NEW YORK) Ss: COUNTY OF SUFFOLK) On the day of December, 1986, before me personally came DOUGLAS SHAW AND VALERIE SHAW, to me known to be the individuals described in and who executed the foregoing instrument and acknowledged to me that they executed the same. Notary Public STATE OF NEW YORK) ss: COUNTY OF SUFFOLK) On the day of December, 1986, before me personally came MICHAEL F. MATTES AND JOYCE MATTES, to me known to be the individuals described in and who executed the foregoing instrument and acknowledged to me that they executed the same. Notary Public APPENDIX "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, being more particularly bounded and described as follows: BEGINNING at a point on the easterly line ,of Luthers Road distant 267.20 feet northerly from the corner formed by the intersection of the easterly line of Luthers Road with the northerly line of Mill Road; thence North 24 degrees 07 minutes 00 seconds West along the easterly side of Luthers Road 150 feet to land nor or formerly of Sledjeski; thence South 72 degrees 17 minutes 00 seconds East along last mentioned land 188.50 feet; thence North 0 degrees 28 mniutes 30 seconds West along last mentioned land 278.00 feet to land now or formerly of Bergen; thence South 81 degrees 13 minutes 20 seconds East along last mentioned land 165.00 feet to a point and land now or formerly of Marvin; thence South 2 degrees 34 minutes 20 seconds East along land now or formerly of Marvin, 345.20 feet to land now or formerly of Marvin later of Mattes; thence North 87 degrees 34 minutes 40 seconds West along last mentioned land, 294.79 feet to a point on the easterly side of Luthers Road and the point or place of BEGINNING. TOGETHER WITH and SUBJECT to a right of ingress and egress in common with others to and from Luthers Road over a 25 foot right of way the southerly line of which is the northerly line of premises now or formerly of Mattes, and which line runs the following course and distance from the southeasterly corner of the premises herein described to wit: North 87 degrees 34 minutes 40 seconds West 294.79 feet. TOGETHER WITH a right of way over a 25 foot strip of land running from the southerly side of Mill Road to Mattituck Creek, more particularly bounded and described as follows: BEGINNING at the northwesterly corner of the parcel herein described distant the following three (3) courses and distances from a monument situate at the intersection of the southerly line of Mill Road and the westerly line of Jackson's Landing; 1) North 88 degrees 02 minutes 20 seconds West 41.20 feet; 2) South 69 degrees 04 minutes 40 seconds West 3.0 feet; and 3) North 87 degrees 44 minutes West 297.0 feet; 'thence from said point of beginning running easterly along the southerly side of Mill Road 25 feet to a point and lands now of Marvin; thence running South 3 degrees 39 minutes East 115.0 feet, more or less, to the ordinary high water of Mattituck Creek/ thence in a westerly direction along the ordinary high water mark of Mattituck Creek 25 feet, more or less, to lands nor or formerly of Sullivan; thence along said last mentioned lands North 3 degrees 39 minutes West 115.0 feet to the point or place of BEGINNING. APPENDIX "B" Ail 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, being more particularly bounded and described as follows: BEGINNING at a point on the southerly side of a 25 foot wide right-of-way distant 294.79 feet easterly of the corner formed by the intersection of the southerly side of the 25 foot wide right-of-way and the easterly side of Luther's Road, said point of beginning also being the northwest corner of other lands now or formerly of Marvin; running thence along land now or formerly of Bayley, North 2 degrees 34 minutes 20 seconds West 345~20 feet; thence along land now or formerly of Bergen, South 81 degrees 13 minutes 20 seconds East 180.50 feet; thence along land on the "Map of Jackson's Landing", Map NO. 5280, South 2 degrees 11 minutes 10 seconds East 313.00 feet; thence along land now or formerly of Marvin, South 88 degrees 30 minutes 40 seconds West 174.89 feet to the point or place of BEGINNING. SUBJECT to and TOGETHER with an easement in common with others for the purpose of ingress and egress over a twenty-five (25') foot right-of-way westerly to Luther's Road. TOGETHER with a right-of-way over a 25 foot strip of land running from the southerly side of Mill Road to Mattituck Creek, more particularly bounded and described as follows: BEGINNING at the northwesterly corner of the parcel herein descirbed distant the following three (3) courses and distances from a monument situate at the intersection of the southerly line of Mill Road and the westerly line of Jackson's Landing; (1) North 88 degrees 02 minutes 20 seconds West 41.20 feet; (2) South 69 degrees 04 minutes 40 seconds West 3.0 feet; and (3) North 87 degrees 44 minutes West 297.0 feet; thence from sai~ point of beginning running easterly along the southerly side of Mill Road 25 feet to a point and lands of Marvin; ~hence running South 3 degrees 39 minutes East 115.0 feet, more or less, to the ordinary high watermark of Mattituck Creek; thence inca westerly direction along the ordinary high water mark of Mattituck Creek 25 feet, more or less, to lands now or formerly of Sullivan; thence along said last mentioned lands, North 3 degrees 39 minutes West 115.0 feet to the point or place of BEGINNING. APPENDIX "C Ail that certain plot, piece or parcel of land, with the buildings and improvements thereon erected situate, lying and beinG at Mattituck, in the Town of Southold, County of Suffolk and State of New York, bounded and described as follows: BEGINNING at the corner formed by the intersection of the northerly side of Mill Road with the easterly side of Luther's Road and from said point of beginning; RUNNING THENCE along the easterly side of Luther's Road, North 5 degrees 37 minutes West, 267.20 feet; THENCE South 86 degrees 49 minutes 20 seconds East 295.00 feet; THENCE South 01 degrees 37 minutes 50 seconds West, 260.00 feet to the northerly side of Mill Road; THENCE North 87 degrees 44 minutes 00 seconds West along the northerly side of Mill Road, 261.20 feet to the corner at the point or place of BEGINNING. TOGETHER with a right of way over a 25 foot strip of land running from the southerly side of Mill Road to Mattituck Creek, more particularly bounded and described as follows: BEGINNING at the northwesterly corner of the parcel herein described distant the following three courses and distances from a monument situate at the intersection of the southerly line of Mill Road and the westerly side of Jackson's Landing; 1. North 88 degrees 02 minutes 20 seconds West, 41.20 feet; 2. South 69 degrees 04 minutes 40 seconds West, 3.0 feet; 3. North 87 degrees 44 minutes West, 297.0 feet; THENCE from said point of beginning running along the southerly side of Mill Road South 87 degrees 44 minutes 00 seconds East, 25 feet to a point and lands now of Marvin; THENCE RUNNING South 3 degrees 39 minutes East, 115.0 feet more or less to the ordinary high water mark of Mattituck Creek; THENCE in a westerly direction along the ordinary high water mark of Mattituck Creek, 25 feet more or less to lands now or formerly of Sullivan; THENCE along said last mentioned lands, North 3 degrees 39 minutes, West 117.69 feet to the point and place of BEGINNING. TOGETHER~.with a right of ingress and egress in common with others to and from Luthers Road over a 25 foot right of way the southerly line of which is the northerly line of the premises herein described, and which line runs the following course and distance, to wit: South 86 degrees 59 minutes 20 seconds East 295.00 feet.