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HomeMy WebLinkAboutZBA-01/24/2002 SPECAPPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman James Dinizio, Jr. Lydia A. Tortora Lora S. Collins George Homing BOARD OF APPEALS TOWN OF SOUTHOLD MINUTES SPECIAL MEETING THURSDAY, JANUARY 24 2002 Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971-0959 ZBA Fax (631) 765-9064 Telephone (631) 765-1809 A Special Meeting of the $OUTHOLD TOWN BOARD OF APPEALS was held at the Southold Town Hall, 53095 Main Road, Southold, New York 11971, on Thursday, January 24, 2002 commencing at 6:30 p.m. Present were: Gerard P. Goehfinger, Chairman Lydia A. Toff. om, Member James Dinizio, Jr., Member Lora S. Collins, Member George Homing (left at 8:20 p.m.) Linda Kowalski, Secretary of the ZBA 6:33 p.m. Chairman Gerard P. Goehringer called the meeting to order. AGENDA ITEM I: The Board proceeded with the first item on the Agenda as follows: I. SEQRA - none at this time. (New reviews are pending inspections.) I1. PUBLIC HEARINGS: The Chairman proceeded with the following public hearings: 6:40 p.m. (Carryover Hearing) - Appl. No. 5034 - RUST FAMILY PARTNERSHIP. Interpretation and/or Relief for Addition with setback variances from front lot line and bulkhead, at 4680 Wunneweta Road, Cutchogue; 111-14-34. R. Lark. Esq. spoke in behalf of the applicant. Appearing in opposition was J. Cella, Esq., an adjacent property owner. During the hearing, Mr. Cella requested a postponement for additional time to review the title and property line location. After receiving testimony, the following resolution was adopted: RESOLUTION ADOPTED: Motion was offered by Chairman Goehringer, seconded by Member Tortora, and duly carried, to recess the hearing for a continuation on February 28, 2002. This Resolution was duly adopted (3-2). Ayes: Members Goehringer. Tortora, and Homing. Nays: Members Dinizio and Collins. 7:05 p.m. (Camjover Hearing) - Appl No. 4998 - ELIZABETH SENTELL. This ~s a request for a Variance under Article XXIV, Section 100-242A, and Section 100-244 based on the Building Inspector's July 27, 2001 Notice of Disapproval The applicant ~s proposing additions to existing dwelling with side yard setbacks at less than 10 feet on one side an(~ less than 15 feet on the other side. Location of Property: 220 Lakeview Terrace, East Marion; Parcel 31-9-16. G. Strang, R.A. spoke in support of the application, and submitted a rendition for consideration. After receiving testimony, the following motion was adopted: ' Page 2 - Minutes Meeting held January 24. 2002 Southold Town Board of Appeals RESOLUTION ADOPTED: Motion was offered by Chairman Goehdnger, seconded by Member Collins, and duly carried, to close the headng. This Resolution was duly adopted (5-0). 7:18 p.m. (Carryover Headng) - Appl. No. 4927 - KACE LI, INC. This is an Appeal requesting Reversal of the Building Inspector's Notice of Disapproval dated August 13, 2001, which disapproval denied an application for a building permit for two-family dwellings under Article IV, Section 100-42A.2. The reason stated in the Notice of Disapproval is that the proposed project indicates several two- family dwellings on a single parcel, and that the Code allows only one such structure per lot as a permitted use. Zone District: Hamlet-Density (HD). Location of Property: South Side of North Road or C.R. 48, 500+- feet east of Chapel Lane, Greenport; Parcel 40-3-1, now or formerly referred to as 'Northwind Village" site. Matt Pachman, Esq. spoke in support of the application. Anthony Tohill, Esq., representing adjacent property owners, spoke in opposition to the application, and offered testimony from David Emilita. Howard Meineke delivered a letter from the North Fork Environmental Council (in opposition) for the record. After receiving testimony, the following resolution was adopted: RESOLUTION ADOPTED: After receiving testimony, motion was offered by Chairman Goehringer, seconded by Member Collins, and.duly carried, to recess the hearing for a continuation on February 28, 2002, This Resolution was duly adopted (5-0). End of public hearings. III. DELIBERATIONS/DECISIONS. The Board deliberated on the following applications. The originals of each of the following determinations were filed with the Town Clerk's Office, and copies are attached to this set of Minutes: A. Interpretation: Appl. No. 5038 - Walz~ (See decision, attached). Member Dinizio requested that his reasons for voting no on the interpretation of Application #5038 Walz be noted, as follows: 1. A review of the current code will reveal no reference to 3- dimensional footprint. However, the code does set the 3-dimensional shape of the building on the lot. The code does make reference to side yard setbacks, front yard setbacks, and rear yard setbacks. Any part of the building lying outside of the side yard, front yard, or rear yard setback set by the code is nonconforming. These dimensions could be considered the horizontal dimension. The code makes reference to the height of the building and restricts it to 35 feet for a principle structure. Any structure built higher than 35 feet is nonconforming and any structure build at 35 feet or less is considered conforming to the code of our town. This is the vertical dimension. The code also makes reference to lot coverage and is set at 20% of the lot in a residential zone. This is the volume. '~age 3 -'Minutes Meeting held January 24, 2002 Southold Town Board of Appeals Member Dinizio's statement, continued: From the above I believe that it is clear that the code does set the 3-dimensional footprint and this applicants plan as presented neither increases the degree of non-conformity nor does it create a new non-conformity. INCREASE IN THE DEGREE OF NON-CONFORMITY. To increase the degree of non-conformity an applicant would first have to have a non- conformity. In this case a 3 foot side yard setback. In order to increase the degree of non- conformity this applicant would have to build an addition to his house along the established 3 foot setback while going no closer than 3 ft to the property line. This would increase the amount of the house that is non-conforming. This applicant does not propose to add any more linear footage to his building. He only wants to build within the established setback. CREATING A NEW NONCONFORMANCE. To create a new nonconformance the applicant would have to propose to decrease the distance to the property line. This applicant does not propose to move the house any closer than the established setback of 3 feet. In addition, after listening to the testimony of the building inspector I could not determine the reason for the sudden change in practical application of the setback law, It has long been established practice by the building inspector to issue a building permit to an applicant that proposes to build a building using the established side yard setback as long as they worked within the original footprint, As a matter of fact the building inspector testified that when he began working in the department he would issue building permits based on "if you had three feet you could do what ever you wanted". He also stated that at some time during Ed Forester's reign as department head it was changed but he offered no basis for the sudden change in the requirements to get a building permit other than to say it changed. The suggestion by the building inspector that any nonconformity of a building causes the entire house to become nonconforming is not supported by the code which has specific restriction stated with respect the side yard, front yard, rear yard, height, and total lot coverage dimensions of the building. These restrictions set forth in the code can not be changed by the building inspector, and I can find nothing in the code that says that Jf one of the restrictions has been breached than that makesthe other dimensions ofthe house nonconforming. In closing, I believe it is not the responsibility of the Zoning Board of Appeals to approve a change to the code, that is the responsibility of the town board. End of Member Dinizio's statement. APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman James Dinizio. Jr. Lydia A. Tortora Lora S. Collins George Horning BOARD OF APPEALS TOWN OF SOUTHOLD MEETING OF JANUARY 24, 2002 Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971-0959 ZBA Fax (631) 765-9064 Telephone (631) 765-1809 Appl. No. 5049 - RICHARD W. VANDENBURGH STREET & LOCATION: 1405 Oak Drive, Southold DATE OF PUBLIC HEARING: January t0, 2002. 1000-80-1-42 FINDINGS OF FACT PROPERTY FACTS/DESCRIPTION: Applicants' property is a parcel of 16,020 sq. ft. in Southold, with 90 ft. of frontage on Oak Drive and a depth of 178 feet. It is improved with a one-story frame house. BASIS OF APPLICATION: The basis of this application is the Building Department's November 2, 2001 Notice of Disapproval concerning applicant's request for a permit to construct an addition, resulting in a setback of 18 feet from the front property line, whereas Code Section 100-244B requires 35 feet. AREA VARIANCE RELIEF REQUESTED: Applicant requests a variance to locate an addition as proposed at 18 feet from the front property line. REASONS FOR BOARD ACTION: On the basis of testimony presented, materials submitted, and personal inspection, the Board makes the following findings: Applicant wishes to expand by adding a second floor and a small front porch. The front setback is now 24.9 feet; the porch will reduced this to 18 feet. The Code requires a 3S-foot setback, so applicant needs a variance for any sort of addition to the front of his house. The proposed setback is reasonably consistent with others in the neighborhood. Also, the front property line on applicant's and neighboring properties is about 16 feet from the edge of the pavement of Oak Drive (a private street unlikely to be widened), so that the setback of applicant's proposed porch from the pavement is about 34 feet. The proposed structure, as drawn in a submission received from applicant on January 14, 2002, is consistent with neighborhood homes. For these reasons, grant of the requested variance will not produce an undesirable change in the character of the neighborhood or detriment to nearby properties. There is no evidence that grant of the area variance will have an adverse effect or impact on physical or environmental conditions in the neighborhood. Grant of the area variance is the minimum action necessary and adequate to enable applicant to enjoy the benefit of an expanded home while preserving and protecting the character of the neighborhood, and the health, safety and welfare of the community. Page 2 - January 24, 2002 Appl. No. 5049 - R. Vandenburgh 1000-80-t-42 at Southold RESOLUTION/ACTION: NOW, THEREFORE, on motion by Member Collins, seconded by Member Tortora, it was RESOLVED, to GRANT a variance authorizing a front yard setsback of 18 feet, as set forth in the applicant's Building Permit application. Vote of the Board: Ayes: Members Goehringer (Chairman), Dinizio, Tortora. (Member Homing was absent during this Resolution.) ' esolution J/Gerard P. Goehringe~, Charrman ~ Approved Collins, and ed. APPEALS BOARD MEMBERS Gerard !a Goehringer, Chairman James Dinizio, Jr. Lydia A. Tortora Lora S. Collins George Homing BOARD OF APPEALS TOWN OF SOUTHOLD MEETING OF JANUARY 24, 2002 Appl. No. 5039 - ROGER AND LESLIE WALZ STREET & LOCATION: 2505 Old Orchard Road, East Marion DATE OF PUBLIC HEARING: November 15, 2001; November 29, 2001. FINDINGS OF FACT Southold Town Hall 53095 Main Road P.O. Box !_179 Southold, New York 11971-0959 ZBA Fax (631) 765-9064 Telephone (631) 765-1809 IN THE MATTER OF ROGER AND LESLIE WALZ, APPLICANTS, FOR AN INTERPRETATION OF THE CODE OF THE TOWN OF SOUTHOLD, Article XXIV Section 100-242A, entitled "Nonconforming buildings with conforming uses", to reverse the Building Inspector's determination rendered in the May 2, 200t Notice of Disapproval. BASIS OF APPEAL: Appellants Roger and Leslie Walz are appealing the Building Inspector's May 2, 2001, Notice of Disapproval for a building permit to construct a second- story addition to a one-family dwelling. The May 2, 2001 Notice of Disapproval recites the following: states, "Proposed addition not permitted pursuant to Article XXIV Section I00-242A which Nothing in this Article shall be deemed to prevent the remodeling, reconstruction or renovation of a nonconforming building containing a conforming use, provide that such action does not create any new nonconformance or increase the degree of nonconformance with regard to the regulations pertaining to such buildings. Existing structure has a nonconforming setback of 3 feet from the easterly side lot line and 6.5 feet in the westerly side line. The addition of the second floor represents an increase in the degree of nonconformity." PROPERTY DESCRIPTION: The subject property is a nonconforming lot, containing approximately .25 acres, located at 2505 Old Orchard Road, East Marion; SCTM 100-37-6-5. The lot is improved with applicants' house, which is a one-story building with side yards that are nonconforming under Section 100-242A for nonconforming lots, which requires a minimum side yard setback of 10 ft. and a total of 25 ft. for both side yards. The building has a nonconforming setback of 3 feet from the easterly side lot line and 6.5 feet in the westerly side line. RELIEF REQUESTED: Applicants request the Board of Appeals to reverse the Building Inspector's determination that the proposed second-story addition over the "footprint" of the existing house represents "an increase in the degree of nonconformity" per Section 242A. They contend Page 2 - January 24, 2002 Appl. No. 5039 - R. and L. Walz ~1000-37-6-5 at Easf Marion that the Building Inspector improperly applied Section 242A, and request an interpretation of the code provision. Applicants request the Board of Appeals to reverse the Building Inspector's determination on the following grounds: '1. Applicants maintain the second-story addition does not constitute an "increase in the degree of nonconformity" because the addition "goes up and not out", and is therefore no closer to the lot line. 2. Applicants contend that the degree of nonconformity should be measured as the horizontal distance from the "footprint" of the existing nonconforming building to the property line. Applicants acknowledge that existing side yard set backs are nonconforming and that the second-story addition would retain the nonconforming setbacks. However, applicants maintain that there is no change in the degree of nonconformity since "nothing is closer than that which exists" and therefore the code requirement is met. WHEREAS, the following code provisions are pertinent to this request: I. Article XXIV Section 242A, Nonconforming buildings with conforming uses, reads: Nothing in this Article shall be deemed to prevent the remodeling, reconstruction or renovation of a nonconforming building containing a conforming use, provided that such action does not create any new nonconformance or increase the degree of nonconformance with regard to the regulations pertaining to such buildings. II. Section 100-13 Definition of the zoning code, NONCONFORMING BUILDING OR STRUCTURE -- A building or structure legally existing on the effective date of this chapter or any applicable amendment thereto but which fails, by reason of such adoption, revision or amendment, to conform to the present district regulations for any prescribed structure or building requirement, such as front, side or rear yards, building height, building areas or lot coverage, lot area per dwelling unit, dwelling units per buiJding, number of parking and loading spaces, etc., but which is continuously maintained after the effective date of these regulations. WHEREAS, The Zoning Board of Appeals held public hearings on the matter on November 15, 200~ and November 29, 200~, at which time written and oral evidence were presented. Based upon all testimony, documentation, personal observations of members of the board and other evidence, the Zoning Board finds the following facts to be true and relevant.* I. The head of the Building Department testified that an increase in the degree of nonconformance will occur if the new construction or renovation to a nonconforming building is located at/ or closer to the pre-existing nonconforming set back line. As example, he stated that if the nonconforming building has a side yard setback of 3 feet, Page 3-January24, 2002 AppJ, No, 5039 - R. and L. Walz 1000-37-6-5 at East Marion and the proposed single-story addition is set back 3 feet 10 inches, there would be no increase in the degree of the building's nonconformance~ Similarly, he said, the Department believes that a second-story addition over the exact footprint of a nonconforming building would increase the degree of nonconformity, but if the second- story addition were set back more than existing footprint, for example 3 feet 10 inches, no increase in the degree of nonconformance would occur, and the code provision of Section 242Awould be met. 2. In examining the provisions set forth in 242A, the Board finds that thc de.qree of a buildin.q's existing nonconformity is clearly established by the three-dimepsional space, which does not coml~lv with the regulations pertail!in¢l to such buildings. For example, if the code requires a minimum side yard set .back of 10 feet, and a single-story building's has a nonconforming set back of 3 feet, the degree of nonconformity is the 10 ft. by 20 ft. area, or 200 sq. ft. space which occupies the 10-foot, non-permitted building, side yard area. The degree of existing nonconformance has been established by the space which does not comply with the zoning regulations. 3. The Board finds that pursuant to section 242A, if the new construction, remodeling, reconstruction, or addition, to a nonconforming building creates a new area of nonconformance, where none existed before, the degree of a building's nonconformity will be increased. For example, if the building's nonconforming 10 ft. by 20 ft. dimensions are expanded, any part of the new construction which encroaches into the 10-foot, non- permitted building, side yard area would create a new area of nonconformity, where none existed before, and would increase the degree of nonconformity. Similarly, if a second- floor were added straight up over the nonconforming 10 ft. by 20 ft. area, the addition would create a new area of nonconformity, where none existed before, and would increase the degree of nonconformance. 4. Although applicants contend that the proposed second-floor addition over the building's existing footprint does not increase the degree of nonconformity, we find no legal basis for this conclusion. The second-floor addition will increase the building's established degree of nonconformity because there would be more area, more square footage, more volume, and more building within the 10-foot, non-permitted side yard area. Simply because the second floor is built on top of a nonconforming footprint does not grandfather it or negate the fact that it will create a new area of nonconformity, where none existed before. 5. The Board agrees with the Building Inspector's determination that the appellants' proposed second-story addition represents an increase in the degree of nonconformity. 6. The Board finds that there is no basis in Section 242A to substantiate the Building Department's position that permits a nonconforming structure to expand into a nonconforming area if the expansion is an inch less or a foot less than the existing building's nonconforming setback. This approach permits new nonconforming construction where none existed before. This position could be viewed as arbitrary Southold Town Board of Appeals Drawing Addendum to Appeal No. 5039 for an Interpretation of Article XXIV, Sections t00-242A of the Code of the Town of Southold, entitiled "Nonconforming buildings with conforming uses. Figure A and B are an example of a pre-existing single-story building with a noncomforming side yard set back of 3 feet, instead of the code-required 10-foot minimum. As noted i~ the decision [he three-dimensional space within which a building ~s permitted to be built on a lot. or a nonconforming building permitted to expand, is defined by the town code regulations governing building set backs, maximum height and bulk. and lot coverage. lot line <-- side yard Figure A - Hozizontal View mininmm fi'ont yard Pm-existing single-story building with nonconfoming side yard setback :::::::::::::::::::::::::: Permitted building area within which a nonconforming building containing a conforming use may be remodeled, reconstructed or enlarged, which will not create any new nonconformance or increase the degree of nonconformance with regard to the regulations pertaining to such buildings. minimum rear yard minimmn side yard Figure B - Vertical View 15 ft maximum height · - I0 fl --> minimum side yard setback Non-permitted building area within which an increase in. the degree of nonconformance will occur, and/or which will create a new area of nonconformance where none existed before, if the nonconforming building is remodeled, reconstructed or enlarged either vertically or horizontally. Page 4 - January 24, 2002 Appl. No. 5039 - R. an(; L. Walz 1000-37-6-5 at East Marion because the three dimensional space within which a structure is permitted to be built on a lot is defined by the town code regulations governing building set backs, maximum height and bulk. NOW, ON MOTION BY MEMBER TORTORA, SECONDED BY CHAIRMAN GOEHRINGER, BE IT RESOLVED, that the Board of Appeals Interprets Article XXIV, Section 242A to mean that: Remodeling, reconstruction or enlargement of a nonconforming building with a conforming use is permitted provided that such action does not create and new nonconformance or increase the degree of nonconformance with regard to the regulations pertaining to such buildings. An increase in the degree of nonconformance will occur if the remodeling, reconstruction or enlargement creates a vertical or horizontal expansion of the established pre-existing dimensions of the nonconforming building, and the new construction does not comply with the regulations pertaining to such buildings, and/or if the new construction creates a new area of nonconformance, either vertically or horizontally, where none existed before. NOW, THEREFORE BE IT FURTHER RESOLVED to DENY the applicants' request to reverse the Building Inspector's determination. VOTE OF THE BOARD: AYES: Members Goehringer (Chairman), Tortora, Collins, and Homing. NAY: Member Dinizio (voting against the decision for the reason that the decision goes beyond the authority of the Zoning Board of Appeals.) This Resolution was duly adopted (4-1).. ~..~.~~ ~ //Oerard/-P/.GoehHn~e~-~, Ch'airman //./' ,~J Approved /~ 2. 7~ Z- ~'~',,~. Page 4 - Minutes Meeting held January 24, 2002 Southold Town Board of Appeals Member Homing left before the next resolution. B. Other Deliberations/Motions: Appl. No. 4962- Walz Variance Request. Motion was offered by Member Collins to grant the application as applied for. No second was offered; the motion was lost. AppI. No. 4962 - Walz Variance Request. Motion was offered by Member Tortora, seconded by Member Dinizic, to hold a decision over to the next meeting for attendance by a full BoarC Ayes: Goehringer, Dinizio, Tortora, and Collins. This Resolution was duly adopted (4-0). (Member Homing of Fishers Island was absent during this resolution.) C. Approval: AppI. No. 5049 - VANDENBURGH. (see attached). No other decisions or actions were taken at this time. Brief reviews of pending files and general discussions by Board Members followed. V. EXECUTIVE SESSION (none held). There being no other business properly coming before the Board at this time, the Chairman declared the meeting adjourned at 9:00 p.m. 5~v~d for Filing - Gera~d P. Goel~ff'~ger, Chairman Respectfully submitteC Li6da Kowalski RECEIVED AND FLIED BY THE SOUTI~OLD T©%~ CLL'TL~ APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman James Dinizio, Jr. Lyd:ia A. Tortora Lo~a S. Collins George Homing, b#?: zo/~,'~ 12126; 1/t7; 1/25 4 p.m. BOARD OF APPEALS TOWN OF SOUTHOLD AGENDA ZBA MEETING OF THURSDAY, JANUARY 24, 2002 Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971-0959 ZBA Fax (631) 765~9064 Telephone (631). -1809 6:30 p.m. I. SEQRA Reviews/Determinations: (New reviews are pending inspections). II. PUBLIC HEARINGS: (Please furnish Affidavits of Posting, returned signature cards, etc. at, or before your scheduled hearing.) When possible, written testimony is requested in lieu of extensive oral testimony. Oral testimony is limited to zoning issues properly before the Board. 6:40 p.m. (Carryover Hearing) - Appl. No. 5034 - RUST FAMILY PARTNERSHIP. Interpretation and/or Relief for Addition with setback variances from front lot and bulkhead, at 4680 Wunneweta Road, Cutchogue; 111-14-34. R. Lark, Esq.,fi:J:-- ~~__"b~_. p.m. (Carryover Hearing)- App,. No. 4998- .ELIZABETH SENTELL. This isa request for a Variance under Article XXIV, Section 100-242A, and Section 100-244, based on the Building Inspector's July 27, 2001 Notice of Disapproval. The applicant is proposing additions to existing dwelling with side yard setbacks at less than 10 feet on one side and less than 15 feet on the other side. Location of Property: 220 Lakeview Terrace, East Marion; Parcel 31-9-16. G. Strang, R.A.. ~__(gwait plan for alternative relief from applicant, not received as of 1123).~J~. c~c-r~ p.m. (Carryover Hearing) - Appl. No. 4927 - KACE LI, INC. This is an Appeal requesting Reversal of the Building Inspector's Notice of Disapproval dated August 13, 2001, which disapproval denied an application for a building permit for two-family dwellings under Article IV, Section 100-42A.2. The reason stated in the Notice of Disapproval is that the proposed project indicates several two-family dwellings on a single parcel, and that the Code allows only one such structure per lot as a permitted use. Zone District: Hamlet-Density (HD). Location of Property: South Side of North Road or C.R. 48, 500+- feet east of Chapel Lane, Greenport; Parcel 40-3-1, now or formerly referred to as "Northwind Village" site. M. Pachman, Esq; A. Tohill, Esq. III. POSSIBLE DELIBERATIONS AND DECISIONS: A. Possible Decisions: (Continued from prior Agenda): ~.~.~.~.~¢:~¥~h"iAiP/P21~ No~ ,~6.2~.~.,AR and 5038.1NT - ~., Hearing ,conclu_d~d~/~ ~(~Ppl.~o. - iNLAND HOMES, I~C. and ~VANAGH. Hearing ~ ~ncluded 1110. Page 2 - Agenda Meeting of January 24, 2002 Southold Town Board of Appeals B. Others deemed appropriate by the Board (from tonight's hearing list, II above). IV. RESOLUTIONS/UPDATES/OTHER: ~, l~'~/A. New application reviews for Calendars of February 21~t; 6:30 p,m. v. ) EXI~CUTIVE SESSION (if any) (to be determined by Chairman).