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HomeMy WebLinkAbout3223 Southold Town Board of Appeals ~AIN RI'lAD- ~TATE R~AD 2~. SI3UTH~3LD. L.I., N.Y. t1¢J71 TELEPHONE (516) 765-1809 ACTION OF THE ZONING BOARD OF APPEALS Appeal No. 3223 Application Dated February 24, 1984 (Public Hearing April 5, 1984) TO: Abigail A. Wickham, Esq. as attorney [Appellant(s)] for THOMAS R. AND BARBARA D. MERCIER Main Road, Box ]424 Mattituck, NY ]]952 At a Meeting of the Zoning Board of Appeals held on May ]7, ]984 the above appeal was considered, and the action indicated below was taken on your [ ] Request for Variance Due to Lack of Access to Property New York Town Law, Section 280-a [ ] Request for Special Exception under the Zoning Ordinance Article , Section [X] Request for Variance to the Zoning Ordinance Article I/I, Section 100-30(A) [ ] Request for The public hearing on this matter was held on April 5, 1984. Upon application for THOMAS R. AND BARBARA D. MERCIER, New Suffolk Avenue, Mattituck, NY (by Wickham, Wickham & Bressler, P.C.) for a Variance to the Zoning Ordinance, Article III, Section lO0-30(A) for permission to convert an existing single-family dwelling use into two professional offices. Location of Property: 4905 Middle Road (C.R. 48), Mattituck, NY; County Tax Map Parcel No. 1000-141-01-21; "Map of Clara W.R. Reeve #212", Part of Lot 5. The board made the following findings and determination: By this appeal, applicants seek a variance from Article III, Section lO0-30(A) for permission to convert an existing single-family dwelling into professional offices for not more than two professionals, to wit: medical practitioner and assistant. Article III, Section lO0-30(C)[1] permits a professional office of a doctor as a home occu- pation, however, one of the requirements is that the practitioner must reside in the dwelling (Local Law No. 2-1983). Also, professional offices are permitted in the "B-Light" and "B-1 General" Business Districts subject to site plan approval of the Planning Board. This being a use variance for a "B-Light" or "B-1 General" business activity, this project must also receive site plan approval from the Planning Board. All of the members of this board are familiar with the property in question as well as the surrounding neighborhood. The property in question is located on the north side of County Road 48 (a/k/a Middle Road) and the west side of Love Lane Extension. Abutting the premises on the north is a "paper road," which is shown on the filed subdivision map of "Clara W.R. Reeve," as filed in the Suffolk County Clerk's Office on 12/4/22 as Map No. 212. It is the intent of the applicants to use this "paper road" for access into the proposed parking area of this parcel. The parcel in question contains an area of approximately 5,750 sq. ft. with 115' frontage along C.R. 48 and 60' frontage along Love Lane Extension. The premises is only improved with an 888 sq. ft. one-story frame dwelling set back 12 feet from C.R. 48 and 32.5 feet from Love Lane Extension. For the record, it is noted the premises on the east side of (CONTINUED ON PAGE TWO) DATED: May 31, 1984. Form ZB4 (rev. 12/81) CHAIP~N, SOUTHOLD TOWN OF APPEALS ZONING BOARD Page 2 Appeal No. 3223 Matter of THOMAS R. AND BARBARA D. MERCIER Decision Rendered May 17, 1984 Love Lane Extension and extending easterly along C.R. 48 to Wickham Avenue are zoned "B-1 General Business." Also, premises located on the south side of C.R. 48, easterly along Love Lane, are zoned "B-1 General Business"; and premises located westerly of Love Lane south of C.R. 48 are zoned "C-Light Industrial." An affidavit has been submitted for the record in support of this application as well as those statements introduced at the public hearing April 5, 1984. Although the record does not show a substantial economic hardship, it is apparent that since a professional would be permitted to have an office as a "home occupation," and since the applicants do not intend to change the residential character of this structure and property, that this proposed use would be within the interest of the community. Accordingly, the board determines: (1) the plight of the owner is due to the unique circumstances of the land; (2) the use under a variance would not alter the essential character of the locality; (3) that the use will not prevent the orderly and reasonable use of adjacent properties or properties in adjacent use districts; (4) that the safety, health, welfare, comfort, convenience and order of the town will not be adversely affected by the proposed use and its location; (5) that the interests of justice wwould be served by allowing the variance, as indicated below. On motion by Mr. Sawicki, seconded by Mr. Grigonis, it was RESOLVED, that Appeal No. 3223, application for THOMAS R. and BARBARA D. MERCIER for permission to convert an existing single-family dwelling for a two-professional-office use for a medical practitioner and a medical assistant, BE AND HEREBY IS APPROVED SUBJECT TO THE FOLLOWING: 1. Compliance with the 20% maximum-lot-coverage requirement in the event of future construction; 2. Limit of two medical practitioners (as requested); 3. Site/parking approval by the Planning Board; 4. A legal right to use the present "paper road" for access; 5. Referral to the Suffolk County Planning Commission pursuant to Sections 1323, et seq. of the Suffolk County Charter. Location of Property: 4905 Middle Road (a/k/a 1045 Love Lane), Mattituck, NY; Part of Lot 5, Map No. 212, "Map of Clara W. Reeve"; County Tax Map Parcel No. 1000141-01-21. Vote of the Board: Ayes: Messrs. Goehringer, Doyen, Grigonis, Douglass and Sawicki. This resolution was adopted by unanimous vote. RECEIVED AND FILED BY THE SOUTHOLD TOWN Cr.~.RK Town Clerk, Town of ~thold May 31, 1984 $outho d Townr'Board of Appeals MAIN RI:3AD- STATE I~EIAD 2S SOUTH{3LD. L.t., N.Y, ll~JT1 TELEPHONE (5181 765-1809 APPEALS BOARD MEt~IBERS GERARD P. GOEHRINGER. CHAIRMAN CHARLES GRIGONI$. JR, SERGE DOYEN. JR. ROBERT J~ D~UGLASS JOSEPH H, SA~/,ICKI NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Provisions of the Amended Code of the Town of Southoid, a Regular Meeting and the following public hearings will be held by the Southold Town Board of Appeals at the Town Hall, Main Road, Southold, NY on ~hursd~_,''A r~ 5~ 198_ __4, commencing at 7:30 p.m. and as follows: 7:30 p.m. Recessed Hearing - JAMES F. DRUCK III (from 3/2/84). 7:35 p.m. Application of JAMES A. and EDNA-MAE CHRISTIE, 675 North Oakwood Road, Laurel, NY for a Variance to the Zoning Ordinance, Article III, Section 100~31 for permission to re-separate Lots 31 and 32, Map of Laurel Park, Map No. 212,'with insufficient area and width and sideyard setback of existing dwelling. County Tax Map No. 1000-127-7-15 and 16. 7:40 p.m. Application of ROBERT A. CAMPBELL, 140 Bay Avenue, Gre~nport, NY for a Variance to the Zoning Ordinance, Article III, Section 100~31 for permission to locate dwelling with an insuffi- cient frontyard setback from Washington Avenue. Location of Property: Southwest corner of Washington Avenue and Middleton Road, Greenport; County Tax Map Parcel No. 1000-041-02-001. 7:45 p.m. Application of LINDA MILLER FAULKNER, Box 787, Cuchogue, NY for a Variance to the zoning Ordinance, Article III, Section lO0-31 for permission to re-separate two parcels with insJfficient area and width° Location of Property: Southwest Side of West Creek Avenue, Cutchogue, NY; County Tax Map Parcel Nos. 1000-103-13-4 and 5. 7:50 p.m. Application $outhold, NY for a Variance Section 100-31 of CAROL PLOC~K, lO003 North Bayv~ew Road, to the Zoning Ordinance, Article III, for permission to re-separate two parcels with insufficient area and width, and a Variaace for approval of access, New York Town Law, Section 280-A. Location of Property: 10007 North Bayview Road, Southold, NY; County Tax Map Parcel Nos. t000-79-5-17 and 21. 8:00 p.m. Application of GEORGE AND NATALIE WIESER, 1415 Har= bor Lane, Cutchogue, NY for a Variance to the Zoning Ordinance, Article Iii, Section 100-32 for permission to construct accessory swimmingpool in an area other than the rear yard at 14i5 Harbor Lane, Cutchogue, NY; County Tax Map Parcel No. 1000-97-6-I0. - Pa~ e 2 Regular Southold Legal Notice~f Hearings Meeting of April 5, 1984 Town Board of Appeals 8:05 p.m. Application of ROBERT BROWN, Main Road, Greenport, NY for a Variance to the Zoning Ordinance, Article VIII, SectiDn 100-81 for permission to construct addition with an insufficient frontyard setback. Location of Property: 74450 Main Roads Green- port~ County Tax MaD Parcel No. 1000-45-06-006. 8:lD p.m. Application of BERIT LALLI, 1405 Narrow River Road, Orient, NY for a Variance to the Zoning Ordinance, Article III, Section lO0-31 for permission to construct garage addition with an insufficient rearyard setback. Location of Property: 1405 Narrow River Road, Orient; County Tax Map Parcel No. 1000-027-03-006.3~  8:15 p.m. Application for THOMAS R. AND BARBARA D. MERCIER,~ Suffolk Avenue, Mattituck, NY (by Wickham, Wickham & Bressler, P.C.) for a Variance to the Zoning Ordinance, Article III, Sec- tion lO0-30(A) for permission to convert an existing single-family dwelling use into two professional offices. Location of Property: 4905 Middle Road (C.R. 48), Mattituck, NY; County Tax Map Parcel No. 1000-141-01-21; "Map of Clara WoRo Reeve #212'~, Part of Lot 5. 8:25 p.m. Application for PETER AND PATRICIA LENZ, Main Road, Peconic, NY (by Wickham, Wickham & Bressler, P.C.) for Variances to the Zoning Ordinance: width of two proposed parcels and New York Town Law, Section 280-A. off the North Side of Sound Avenue Mattituck~ County Tax Map Parcel [a] for approval of insufficient [b] for approval of access, Location of Property: Right-of-Way known as Private Road #11, No. lO00-112-Ol~Oll and 012. 8:30 p.m. Application of CROSS SOUND FERRY SERVICES~ INC., Box 33, New London, CT 06730 for a Variance to the Zoning Ordinance, Article V~I, Section lO0-70(A) and Section lO0-71 for permission to Ia] construct principal building with an insufficient frontyard setback from the easterly property line and [b] establish a ferry- terminal use in this B-1 Business District. Location of Property: 42175 Main Road, Orient, NY; County Tax Map Parcel Nos. 1000-015-09- ll. 8:45 p.m~ Apolication for MARY GRIGONIS, 550 Wells Avenue, Southold, NY for a Variance to the Zoning Ordinance, Article III~ Section 100-31 for approval of insufficient area of two proposed parcels located at the west side of Wells Avenue, Southold; County Tax Map Parcel No. 1000-061-03-08. For information concerning these matters, please contact Linda Kowalski at the Office of the Board of Appeals, Town Hall, Southold, NY; tel.. 76§-1809 or 1802. Those persons having an interest in these matters may appear and be beard at the time and place specified above~ Dated: March 17, 1984. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN (end of legal notice) FORM NO. 3 TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN CLERK'S OFFICE SOUTHOLD, N.Y. NOTICE OF DISAPPROVAL PLEASE TAKE NOTICE that your application dated ..~..~/.~.~... f..7. ............ 19 for permit to-~a~eea~t..C~.~Z~...~-~...~, a~'~.. ,~--./A-~..,~..~/?-r.~. (..A'~. ..... ~-L~' at Location of Pro perry (~J. ~f.~.~Z ~c~..~./.~/&.~..~.¢.. ~. ~. ~ 7...~(.~.~.~.~. ~ T .... ~,~.~.~ .~..C~/.~/~' '~' House No. Street Ham/et County Tax Map No. 1000 Section .../?. f. ....... Block .... ~.f. ....... Lot . .~..~.'.F ....... Subdivision ................. Filed Map No ................. ., ,~ot No .................. is returned herewith and disapproved on the following grounds .~. ~£~.~... ~.5.. . . . .'D. 7. . . ./f .,r.e./. . e. . . ,. . . ,,v.o.7. .~-'. ~rr~ :';-~.a. .-. .... .,,~'"./,,zz. .~. . . .~.~.~. .~. .,r. ¢..o. :: ?. .~. . ~.F./ fl.~. .... Building Inspector RV 1180 TOWN OF SOUTHOLD, NEW YORK APPEAL FROM DECISION OF-BUILDING INSPECTOR DATE .]~.3;~...2.4.,. 1984 TOZHEZONINGJ3OARD~OF-AP, PEALS, ;TOWN OF S~THOLD, N. Y. -,- ~BY ,APR~L TO APPLICATION DATED:' 2/~'7/8~ FOR: WHEREBY THE BUILDING I,NSPECTOR Di T~oma~ R..' Nattier, M.D, & ... Bar, l~a~a,D..,,-':- .Mar~ie~ ................ ~ ................. '~'~ame of Applicant for permit o f .... .Ill.!!~.~,:, .~o..lk .Ave...,.....I, la=.i:l l:uck ,.. l~le~.. York. ............................. Street 6~d~'Number Municipality State PERMIT TO USE PERMIT FOR OCCUPAN~,Y PERMIT TO BUI/LD !~.. OCATION OF l~; Df Clara: Map No 2. PROVISION (S) OF THE ZONING ORDINANCE APPEALED (indicate the Article Section. Sub- section ona Paragraph of the Zoning Ordinance by number. Do not quote the Ordinance.) Article III , Section ~00-30A ~..~ ..................... OWNER (S),: .'~a.o,m.!i~['l~-,, ~. ~B~rba.r~ .D,, Mercier Lot No. DATE PURCHASED: 10/L~183 ...... 3 TYPE OF APPEAL Appeal,is made herewith for (X A VARIANCE to the Zoning Ordinance or Zoning Map A VARIANCE due to l~ack of _access (Store of New York Town Law Chap. 62 Cons. kaws Art 16 Sec. 280A 5ubs~dtion 3 ' 4 PREVIOUS APPEAL A pr~gious'appeal;l~ff;l~L~(has noU be~n made with' respect to this decision ~, ~: -: ~ ~ . of the Bud ag Inspector or wi~ [espect to thts property. Such oppe~ was ( ~ request' f~r~a special permit ( ) request for a vaqance onc was made in Appeal No ................................. Dated ...................................................................... REASON FOR APPEAL ( } A Variance to Section 280A Subsection 3 tX) A Variance to the Zoning Ordinance ( ) is requested For the reason that ~e ~ould like to Co~.ver~ fami.ly dwelli~ into Professional offices for not mOre ~:t~ t~g ~ro- fessibnals. A Copy O~ the su~ey and a copy of the zonin~ m~ for the area are enclosed~ Form ZB1 (Continue on other side) REASON FOR APPEAL Continued 1. STRICT APPLICATION OF THE ORDINANCE would produce practical difficulties or unneces- sary HARDSHIP because the location of the property on a four-lane highway ad~oinin§ a public launchin§ fa¢llit7 and business zoned propert7 renders the property of insufficient value for residential purposes to obtain a reasonable return on investment. Although appticants~re~.~ cently purchased the property, they did so with the express intent of .applyins for permission .to convert to professional offices, rat~er than.to use.'.the.pr?mises for residential purposes. 'The prior owner experzenced ~ff~cuity in selling the premises as eur~eRtly zoned, havi~g had the property on the market for many months without a single purchaser except for one sale which fell through. 2 The hardship created is UNIQUE and is not shored by all properties alike in the immediate vicinity of this property onc in this use district because th'is parcel is isolated between are obstructed. 3 The Variance would observe the spirit of the Ordinance and WOULD NOT CHANGE THE CHARACTER OF THE DISTRICT because tt~s. exterior &ppearance of the building would not change; only minor changes to the interior are required, and the nature of professional use is not incompatible with the existing residential uses and is less offensive tha~ the B-1 uses permitted his parking accordingly. STATE OF NEW YORK ) ) ss COUNTY OF S_UFFOLK ) Sworn to this ........ 24t.~ ..................... ........... ;... ....... Signature day o ...F~r-~.~ ................................ Notary Public OWNER FORMER OWNER ! ~Es~Zp LAND AGE NEW FARM Tillable Tillable 2 Tillable 3 Woodland Swampland Brushlond House Plot Total TOWN O:F SOUTH~D PROPERTY gE:CORD. CARD STREET Vi LLAGE SUB. N E ACR, S FARM DATE AL BUILDING CONDITION ABOVE NORMAL BELOW Acre Value Per Acre COMM. CB, MISC. Mkt. Value Voiue TYPE OF BUILDING FRONTAGE ON WATER FRONTAGE ON ROAD DEPTH BULKHEAD DOCK cOLOR TRIM Extension Extension Extension Porch Porch Breezeway (7~:~rage Foundation lBasement Podo Total Ext. Walls Fire Place Type Roof Dormer [lath / :JOOKS nterior Finish Dinette Rooms 1st Floor Rooms 2nd Floor~f ~ I I I · ~1~,~ ~ CATED HEI~ON matt ,S'¢,~ / ~ ~0 '-'=1tt COUNTY OF SUFFOLK DEPARTMENT OF PLANNING (516) 360-5513 LEE E. KOPPELMAN November 1, 1984 Town of Southold Board of Appeals Pursuant to the requirements of Sections 1323 to 1332 of the Suffolk County Charter, the following applications 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 Municipal File Number Peter & Patricia Lenz Robert Entenmann D. J. Clause Enterprises Mary Grigonis Robert Brown Thomas & Barbara Mercier George & Natalie Wieser Jose V. Rodriguez Berit Lalli Vincent Griffo Gertrude M. Ali James Anderson Joseph Fischetti Robert W. Gillispie, III Thomas Higgins Vincent Griffo 3184 3200 3203 3211 3221 3223 3224 3225 3228 3229 3235 3238 3239 3241 3255 3258 GGN:jk' Very truly yours, Lee E. Koppelman Director of Planning Gerald G. Newman Chief Planner VXTERANS MEMO~tlA~. HtGHWAY HAUPPAUG£. ~-. L. N[W YORK 11788 Southold Town Board of Appeals MAIN RDAD- STATE RDAD 25 SDUTHOLD, L.I., N.Y. llCJ?l TELEPHONE (,516) 765-1809 Pursuant to Article XIII of the Suffolk County Charter, the Board of Appeals of the Town of Southold, New York, hereby refers the following to the Suffolk County Planning Commission: x× Variance from the Zoning Code, Article III , Section 100-30(A) Variance from Determination of Southold Town Building Inspector ~ Special Exception, Article , Section ___ Special Permit Appeal No.: 3223 Applicant: THOMAS R. & BARBARA D. MERCIER Location of Affected Land: 4905 Middle Rd., Mattituck County Tax Map Item No.: 1000-141-01-21 Within 500 feet of: __ Town or Village Boundary Line __ Body of Water (Bay, Sound or Estuary) xx State or County Road, Parkway, Highway, Thruway __ Boundary of Existing or Proposed County, State or Federally- Owned Land ~ 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 Estab- lished Channel Lines, or Within One Mile of a Nuclear Power Plant ~ Within One Mile of An Airport. was granted COMMENTS: Applicant ~tin~ permission to single-family dwelling use into two professional offices. an existing Copies of Town file and related documents enclosed herewith for your review. Dated: June 1, 1984 ~~ _~'/,, //~/'~ · Temp. S~cre~ary, Board of Appeals Southold Town Board of Appeals APPEALS BOARD MEMBERS GERARD P. GOEHRiNGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. ROBERT J. DOUGLASS JOSEPH H. SAWICKI May 31, 1984 Abigail A. Wickham, Esq. Wickham, Wickham & Bressler, P.C. Main Road, Box 1424 Mattituck, NY 11952 Re: Appeal No. 3223 - Thomas and Barbara Mercier Dear Sir or Madam: '~..~ Attached herewith is a copy of the formal findings and deter- mination recently rendered and filed this date with the Office of the Town Clerk concerning your application. In the event your application has been approved, please be sure to return to the Building Department for approval of any new construc- tion in writing, or for other documents as may Re applicable. If you have any questions, please do not hesitate to call either our office 765-1809) or that of the building inspector (765-1802 Yours very truly, Enclosure Copy of Decision to Building Department Planning Board' Suffolk County GERARD P. GOEHRINGER CHAIRMAN / Secretary Planning Commission Southold Town Board of Appeals -52- May 17, 1984 Regular Meeting RESERVED DECISION: Appeal No. 3223. Upon application for THOMAS R. AND BARBARA D. MERCIER, New Suffolk Avenue, Mattituck, NY (by Wickham, Wickham & Bressler, P.C.) for a Variance to the Zoning Ordinance, Article III, Section lO0-30(A) for permission to convert an existing single-family dwelling use into two professional offices. Location of Property: 4905 Middle Road (C.R. 48), Mattituck, NY; County Tax Map Parcel No. 1000-141-01-21; "Map of Clara W.R. Reeve #212", Part of Lot 5. The public hearing on this matter was held on April 5, 1984, at which time the hearing was declared closed pending deliberations and receipt of other documentation. The board made the following findings and determination: By this appeal, applicants seek a variance from Article III, Section lO0-30(A) for permission to convert an existing single-family dwelling into professional offices for not more than two professionals, to wit: medical practitioner and assistant. Article III, Section lO0-30(C)[1] permits a professional office of a doctor as a home occu- pation, however, one of the requirements is that the practitioner must reside in the dwelling (Local Law No. 2-1983). Also, professional offices are permitted in the "B-Light" and "B-1 General" Business Districts subject to site plan approval of the Planning Board. This being a use variance for a "B-Light" or "B-1 General" business activity, this project must also receive site plan approval from the Planning Board. All of the members of this board are familiar with the property in question as well as the surrounding neighborhood. The property in question is located on the north side of County Road 48 (a/k/a Middle Road) and the west side of Love Lane Extension. Abutting the premises on the north is a "paper road," which is shown on the filed subdivision map of "Clara W.R. Reeve," as filed in the Suffolk County Clerk's Office on 12/4/22 as Map No. 212. It is the intent of the applicants to use this "paper road" for access into the proposed parking area of this parcel. The parcel in question contains an area of approximately 5,750 sq. ft. with 115' frontage along C.R. 48 and 60' frontage along Love Lane Extension. The premises is only improved with an 888 sq. ft. one-story frame dwelling set back 12 feet from C.R. 48 and 32.5 feet from Love Lane Extension. For the record, it is noted the premises on the east side of Love Lane Extension and extending easterly along C.R. 48 to Wickham Avenue are zoned "B-1 General Business." Also, premises located on the south side of C.R. 48, easterly along Love Lane, are zoned "B-1 General Business"; and premises located westerly of Love Lane Southold Town Board of Appeals -53- May 17, 1984 Regular Meeting (Appeal No. 3223 T. MERCIER, continued:) south of C.R. 48 are zoned "C-Light Industrial." An affidavit has been submitted for the record in support of this application as well as those statements introduced at the public hearing April 5, 1984. Although the record does not show a substantial economic hardship, it is apparent that since a professional would be permitted to have an office as a "home occupation," and since the applicants do not intend to change the residential character of this structure and property, that this proposed use would be within the interest of the community. Accordingly, the board determines: (1) the plight of the owner is due to the unique circumstances of the land; (2) the use under a variance would not alter the essential character of the locality; (3) that the use will not prevent the orderly and reasonable use of adjacent properties or properties in adjacent use districts; (4) that the safety, health, welfare, comfort, convenience and order of the town will not be adversely affected by the proposed use and its location; (5) that the interests of justice would be served by allowing the variance, as indicated below. On motion by Mr. Sawicki, seconded by Mr. Grigonis, it was RESOLVED, that Appeal No. 3223, application for THOMAS R. and BARBARA D. MERCIER for permission to convert an existing single-family dwelling for a two-professional-office use for a medical practitioner and a medical assistant, BE AND HEREBY IS APPROVED SUBJECT TO THE FOLLOWING: 1. Compliance with the 20% maximum-lot-coverage requirement in the event of future construction; 2. Limit of two medical practitioners (as requested); 3. Site/parking approval by the Planning Board; 4. A legal right to use the present "paper road" for access; 5. Referral to the Suffolk County Planning Commission pursuant to Sections 1323, et seq. of the Suffolk County Charter. Location of Property: 4905 Middle Road (a/k/a 1045 Love Lane), Mattituck, NY; Part of Lot 5, Map No. 212, "Map of Clara W. Reeve"; County Tax Map Parcel No..1000141-01-21. Vote of the Board: Ayes: Messrs. Goehringer, Doyen, Grigonis, Douglass and Sawicki. This resolution was adopted by unanimous vote. WICKHAM, WICKHAM & BRESSLER, P.e. MAIN ROAD~ P.O. BOX 142~ MAtTITUCK LONG ISLAND May 4, 1984 Southold Town Board of Appeals Town Hall Main Road Southold, NY 11971 Re: Application of Thcmas & Barbara Mercier A~peal No. 3223 Gent l~nen: In response to your letter dated April 18, 1984, we enclose a copy of the Merciers' deed which includes a conveyance of title to the center line of any abutting street or road. This would include the "private road" and Love Lane. Moreover, as I stated at the hearing, Now York State law provides that an owner of a lot on a filed map has the right to use the streets on that filed map for access. This is a well established principle, and I enclose copies of three cases eonfi_rming the position. Fiebelkorn v. Rogackl, 280 AD 20 (4th Dept., 1952) involved a strip of land shown as a street on a filed map on which the defendants had planted their lawn. The Court, in directing them to remove all obstructions and encroachments frc~ that streeet, recited the general rule of law as follows: · . . when an owner of property sells lots in reference to a map, which lots abut upon a street as shown on the map, the grantees are entitled to have the land shown as a street left open forever as a street or highway and this is so whether or not it is accepted by the town or municipality as a public highway. Id. at 2t. The Court in Fiebelkorn relied on White's Bank v. Nichols, 64 N.Y. 65, 73 (1876). That case involved the sale of lots on a filed map where the defendant had fenced in a portion of the street adjoining his lot. Fienbelkorn also relied on Lord v. Atkins, 138 N.Y. 184 (1893). In that case, the owners of lots on a filed map sued other owners who had plowed the street in an att~k to grade for opening the street. The Court held that while the plaintiff owned a portion of the street, it was subject to an easement as a public highway for the defendants' benefit. Southold Town Board of Appeals Page 2 May 4, 1984 Since the Merciers own a portion of Lot 5 on the filed map known as "Map of Clara W.R. Reeve, made by D.R. Young, Surveyor, March 1922" filed in the Suffolk County Clerk's Office on 12/4/22 as Map No. 212, they have a right to use the private road shown on it which adjoins their property. I trust this will answer your concerns. Very truly yours, encls. TAX MAP ESIGNATION mt. .lO00 ~' 140~o ~. al ooo · t(,): o21.00J THIS INDENI1JRE, made the ]~h day of October , nineteen hundred and ei ghty-three BETWEEN STUART MacMILLAN and ALICE.MacMILLAN, his wife, presently residing at: party of the first part, and THOMAS R. MERCIER and BARBARAIB~ MERCIER, his wife, presently residing at: (no#) New Suffolk Avenue, Mattituck, NY 11952 party o[ the second pa~, WITNESSETH, that the party of the first pa~, in consideration of Ten Dollars and other valuable consideration paid by the party of the second part, does hereby grant and release unto the party of the second pa~, the heirs or succ~sors and assigns of the party of the second part forever, AIJ. that certain plot, piece or pared of land, with the hullings and improvemen~ thereon erected, situate, l~ngand being~nx[l}~ at Mattituck, Town of Southold, County of Suffolk and State of New York, known and designated as part of Lot 5 on a certain map entitled, "Map of Clara W.R. Reeve, made by D.R. Young, Surveyor, March 1922", and filed in the Office of the Clerk of the County of Suffolk on the 4th day of December, 1922 as Map No. 212, and bounded and described as follows: BEGINNING at a monument set at the intersection of the westerly line of Love Lane and the southerly line of a private road sometimes known as "Hazard Road", from said point of beginning; RUNNING THENCE along the westerly line of Love Lane South 36 degrees 30 minutes East 60.00 feet to a monument in the southerly line of Lot No. 5 and land formerly of Besch; RUNNING THENCE along said land formerly of Besch, South 53 degrees 30 minutes West 115.00 feet to a monument end..land .o~-:Ab~ah~s~ RUNNING THENCE along said land of Abrahams, North 36 degrees 30 minutes West 60.00 feet to a monument on the southerly line of said private road; RUNNING THENCE along the southerly line of said private road North 53 degrees 30 minutes East 115.00 feet to a monument and place of BEGINNING. The Grantors herein are the same persons as the Grantees in Deed dated 8/28/73 tiber 7476 Page 381. .T~O.~.THFR with all ric, ht t;tt* nnrl lntereRt if any. n{ the mrty of the first oart jn an(~ to 9ny streets and roads abhttinff the above ~e~Cribe. d t~remises to the g~ntcr lines tlteremf; TOGEi n,~ ,;ti, 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 party o{ the second part, the heirs or successors and assigns of the party of the second part forever. AND the party of the first pa~ covenants that the Party of the first part ~ not done or suffered anything whereby the said premises have been encumbered in any way whatever, except as aforesaid. AND the party of the first part, in compliance with Section 13 of the Lien Law, covenants that the party el: 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 o[ the improvement and will apply the same first to the payment of the cost of the improvement before using any part of the total of the same [or any other purpose. The word "party" shall be construed as if it read "parties" whenever the sense of this indenture so requires. IN WITNESS WHEREOF, the party of the first part has duly executed this deed the day and year first above written. Alice MacMillan FI~BF, LKOUN ~. ROGACI~Io Fourth DePartment, March, 1952. [Vol. 280 At,~EaT FmBELKORN et al., Respondents, ~. JACOB RO(;L~OEI e~ al., Appellants, and Tow~ oF LAi~CASTER, Respondent. Fourth Department, March 5, 1952. Highways--dedication of land as street--(1) parties' common prede- cessors in title conveyed lots bordering on street shown on subdivision map to appellants' predecessors in title; appellants entitled to have such land shown as street left open as such forever--(2) defendants acquired fee to center of street subject to rights of other lot owners, including plaintiffs, to use land as street-- (3) conversion of land to street by user not shown. 1. The parties' common predecessors in title conveyed lots by reference to a subdivision map and by subdivision lot numbers to appellants' predecessor in title, bordering on the southerly side of a street referred to on the map, and qonveyed lot~ to another bordering on the northerly side of said street. When an o~ner of property sells lots by reference to a map, which lots abut upon a street as shown on a map, the grantees are entitled to have the land shown as a street left open forever as a street, whether or not it is accepted by the town or municipality as a public highway which has not been shown here. Accordingly, appellants are entitled to judgment directing plaintiffs to remove from the stl'ect all encroachments erected by them, and declaring their rights in such strip. 2. The conveyance of subdivision lots under such circumstances, in the. absence of express reservation, conveys' the fee to the center of thc street on which the lets abut, subject to the rights of other lot owners and their invitees to use the entire area of the street for highway purposes. Accordingly, appel-: lants own the fee from the south line to the center and plaintiffs from tho. norf~ llne to the center of the street and both are entitled to use, along with invitees, the entire strip for highway purposes. 3. Defendants have failed to establish that the strip of l~nd became a public highway by user. APPEAL from a judgment of the Supreme Court in favor of plaintiffs, entered June 26, 1951, in Erie County, upon a decision~ of an Ofl~elal Referee (ALonzo O. H~L~Y, Off. Ref.), directing[ (1) that plaintiffs have a ~ahd, absolute and umncumbered title to certain premises, (2) that the counterclaims of defend-~ ants be dismissed, (3) that plaintiffs have full and exclusive~ possession of the premises and are entitled to possession thereof:! as against the defendants, and (4) that plaintiffs have costs and disbursements of this action. The action was brought pur,~i suant to article 15 of the Real Property Law to determine clahnsi to real property, consisting of a strip of land fifty feet known as 'Walter Avenue. In 1892, the Bellevue Land and'! Improvement Company conveyed a tract of ]and to John R. Walter and Henry Schwabl which included the premises in dispute. At the time of purchase the grantees gave the grantor a purchase-money mortgage to secure the sum of $25,000. .J FIEBELKORi~' ~. Ro~exL 21 ~pp. Div. ~9~ Fourth Department, March, 1952. ~ Ther--~-eafter in 1896, the grantor filed a subdivision map o~-the premises in the ofl~ce of the Clerk of Erie County, which showed a street fifty feet wide marked Walter Avenue. After the grantor had reacquired title by a referee's deed on foreclosure of the mortgage in 1900, it again conveyed the premises to Henry Schwabl. By deed dated in 1902, Henry Schwabl and his wife conveyed subdivision lots ~o the south of Walter Avenue as filed under the map to Joseph Young, defendants_ appellants' predecessor in title. The next day Schwabl and his wife conveyed to John Schwabl lands to the north of the said Walter Avenue by subdivision lot numbers. In 1941 Gertrude Schwabl, widow of Henry, conveyed by warranty deed, which described the land by metes and bounds, the premises in question and adjoining lands to plaintiffs, who subsequently, in 1950, acquired the title held by John Schwabl's estate. Thereafter plaintiffs used the premises for lawn and grass. Mauri¢¢ J. R~mizen for plaintiffs-respondents. Bren~a~ and Brennan for appellants. Howard ~. Davidson for defendant-respondent. P~rs, J..We agree with the trier of the fact ~hat the Town ~ of Lancaster had no~ o~cially accepted the s~rip of land ~own as Walter Avenue as a public highway and that appellants failed to establish that it had become a public highway by user. ~We think, however, that the judgment must be reversed on ~ other grounds. Wh~le the Bellevue Land and Improvement Company did not. have t~tle to the premises in question at the time the subdivisio~ ,map was filed, it reacquired title by referee's deed on the foreclosure of the mortgage, which deed referred to the map, and it adopted and reco~ized the map in i~s conveyance of [premises and more to Henry SchwabL He in turn conveyed 'to Joseph Young (appellants' predecessor in title) by subdivi-' sion lot numbers, which conveyance included all the lots abutting ~on the southerly Hne of Wal~er Avenue as shown on the map. Henry Schwabl also conveyed, by lot numbers, ten lots (Nos. '~23 to 32 inclusive in block ', M ,,) abutting ~he northerly line of Walter Avenue to John Schwabl ~~ an o~ner of rrp~?ty sqlls lots ~a°~ ~m ~ran~a ~ ~Cd .lO hays tbe land shm~ . street left. ~9rever ..... as a street or highway and* ~-"this is ~ w~r or ~-~t~ by the town ~ - '-" Fourth Department, M'areh, 1952. [VoL 280 fLord v. Atklns, 138 N. Y. 184, 191, Johnson v. C~ry of ~ g Palls, 230 N. Y. 77, 82; Matter of City of New York [Brigham St.], 246 App. Div. 819, affd. 273 N. Y. 508; Erit Realty Corp. v. Sea Gate Assn., 249 N. Y. 52, 57; Matter of City of New York [Northern Blvd.], 258 N.'Y. 136, 147; Matter of City of New York [Sedgwick Ave.], 213 lq. Y. 438, 442; Dalton v. Levy, 258 N. Y. 161, 165; Mills v. City of New York, 269 App. Div. 306, 312, affd. 295 N. Y. 879; 28 C. J. S., Easements, § 39, p. 701; 17 Am_ Jur., Easements, § 47, p. 958.) It is also well settled that the conveyance of subdivision lots under such circumstances, in the absence of express reserva- tion, conveys the fee to the center of the street on which the lots abut, subject to the rights of other lot owners and their invitees to use the entire area of the street for highway pui- poses. (Bissell v. New York Central R. R. Co., 23 N. Y. Geddes Coarse Salt Co. v. Niagara, Lockport and Ontario Power Co., 207 lq. Y. 500; Trowbridge v. Ehrich, 191 N. Y. 361, 365; Haberman v. Baker, 128 N. Y. 253, 257; Paige v. Schenectady By. Co., 178 N. Y. 102, 110, 111.) Under these welLestabllshed rules, it is clear that the appel- lants own the fee from the south line to the center of the street shown as Walter Avenue on the map of the subdivisiOn and are entitled to have the use of the entire fifty-foot strip of land for highway purposes. Assuming, as to the parties to the action, that the deed purporting to convey the ten 10ts~ owned by John Schwabl in his lifetime, to respondents was 'a valid conveyance of those prera]ses, the respondents own the fee from the north llne of Walter Avenue to the center lln~ thereof subject to the right of appellants and their invitees t6 the use of the entire fifty-foot Strip for highway purposes:' The appellants should be entitled to. judgment itirecting respondents to remove from Walter Avenue all Obstrnetioiis and encroachments placed or erected thereon by respondents, and declaring their rights in and to sUch street in accordance with the decision here made, with costs. ' ' All concur. Pre.sent--TxrLon, P. J], VAUOHAN, merit directed in favor of appellants in accordance with the opinion, with costs. Certain fiudings of fact and conclusions of law disapproved and reversed and new findings and con- ~lus~pns made. ' 8t&tement ~ ~ ~ ? 'the~. ~ spp~i~l directed b~ the order sp~l~ ~n? ~, technically, ~e now apprai~l of ~e ~t~ of 1850, chap. 1~, ~ 17 and 18); it w~ which the s~tute in ~e first instance authorlz~ is in ~uming that the Speeial Term, in vacati~ order, w~ traveling in the path of the statute. t ~Wer over the proceedings of the .~ annn], V~te and ~ ~em ~ide, which power the side of She s~tute and ~ with i~. ~r ~hi~ e, it entered again u~n the way of the $~ute. Special Term'had ~e ~wer m entertain and ~ the moving ps~ ~owed matter for ~ion, ~he order made by ~ and Gene~l Term is not appealable to this OF BV~F~iO. Appellant and Res~nden~ c~ot.s, Appel.lant and Respondent. a de~ descries the granted prem~ ~ ~0ning ~t the ~mec- of ~e exterior lines of two street, ~e ~t ~ ~blished · e O~er pa~ of ~e description. ~d H~es ~n~ ~ong to the ex~rior 1~ of ~e ~,.~d ~e ' She S~eet is not included in ~e ~ant~ ~nt t~t ~e ~i~ COmempla~ a ~Rlng ~ or ~ ~c Hn~; a chan~, therefore, in ~e point of ~te~cfion made ~e ~artlng po~ by a chan~ ~, will not exlend or ~ ~e ~2 ~ ~e wid~. ~ement does not, by ~ng a ~gh$ to ~e fee ~ · ~m fi, and by ~k~g ~ion ~e~fi d~ ' en~ ~o ~ts of ~ch Owne ...... ' · ~y hm. ~t b~ such ac~ to befieve ~e ~ght abandoned, aud ~ ~ ...... Ce~m l~ln the ~tyof B~ ~d Y- Elevated ~ ~ ~. Y. 181, 182, IIIlnSSl Ill l IIIIIII IIiiiiiii I I~_._ IIIIIIIII o r~hlch defendant claims, In w~l~h 1 ..~ commuting'at the nte~tion .Gl the exterior, ~ naotherztrcet, . ~ and P. subsequ~tlyconvoyed their~in~l ~ of O s~t ~ ~d ~his inter~t w~ cony0yed tO p j tout, ~ open~ and us~ but w~, ~fter mdu~:b~ the ~mmon coundil of ~h~ ii~ to i~idt]i'of ,:,~ ~en~d.in the ~tion of ~g~eet,~Jot~ng ~,~e~ ~e~ cia ming to ~wn the ~ee In an ~ct · e land ~tween the old ~d new str~: lin~ uF~t ~not Included i~ t~e' ~dn~t'u~der~ :"-but the fe~ the~ W~in ' th'e plaintiff; 'that {he ehan ,*ain~ of the s~et, dld ~ change or affect del~ndan qu~lofi, Which ~emem w~ n~t ~xflnguithed b~ had ~sken exclusive p~ton did not entitle plaintiff Judaea,, bu~ simply ~o Judgme~ giving ~m ~n THeE S~ '~ro~'~pP~ls from's j ~dgmen~ of. ~erm of the ~,~reme, Court in the tburth indicia meat, modif~ing~ ~nd affirmlng .e~. modified,. ,~or of.plaintiff, en~md opon 8 decision of tho~ut e~eotul~. fThls W~. an aetio~ Of of ~1~ numar thi~y, one, in the oity: ~r~,~ey m~de ~ tn'~p of' this block, divldi~ 1o~, and designating ~rden ~t~et,'~xte~dln Hn~ street to Virginia street, tho'~maklng ,o~ this m~p, and with 80]d .~0 ~on*eyed, by ~arrmtty deedsi . vexed ~o Philander W Saw ~ gn]~ ~, 183~ on ~id.~ e~ map, dcsori~d in the,~aod ~,tbiluw~; uin~ on the not'rh-w~storly lino ~,f ~Woll ~a stt'oot ~e ,north~terly llne of, Garde~ along tho; northwesterly line o~ said :Garden of ~id block heretofore con~e~ed by the said ~ife and. George R. Ba~o~ to one te~ly ~long the line of sald' bloek:~%the..State ~,~utheriy along the State line ~o Oarolins street, snd I Il~U.t~westerl~ bounding on Osroli~s street tO tho nnin ~ontai ting more'or less ' , t,claim doed~ executed i~ ~o~o"~.' ' ' '" ~ :~ ~" ~ ] , ~am ~ il · ,, ~o~o ,~ney ~n~oy~ to ono ~ ~ . p 0 tl~r.~n~or~t,~n Oarden. steer,, ~nd .tho ~'~i~ed by.Oampbell:~nder~$hose, doeda h~ ve~ ~dan~ s~q~i~edthe inte~es~ in ~id p~emJses eonve~ ~nd. inclosed his lot ~i:th the t~ncQ.on the easterly ~ ~, boin~ on. the e~sterly line o~ s~id street,. I I1~ :, wide, as located on said map.~ The proper~y on both ;sides o~ ~Gardem.s~reet 'inla.~street~ a]so',inelosed, theh, lots, placing ~o~the east ~qd ~est sides of Gard~ 0tm~, as slxty. ~ide, ~nd,~id street.so remained unti~ 1869... ;the common cou ~ci], o~ the city, of But. ~ of O~rden ~treet to,be st~ked, out, and ~recorded, and thio, ~as doge, the. bonndaH~ ~o,Z~ ss zhown ~by tho. map...In :Ju~,~ 1869, a peri- p~ze~t~' tothe ~mmon council ~igned by land. the z~reet, asking that Garden street .$OIthe.'width~of twen~y-thr~ the~.~. In accord. [hjsi p0tition,.and pursuant to ~the city charter,. passed.:in August,.1869, .d~re~ing such o~ho street,.according]y,., whleh. 'Snd...record ~ ~ere made .~cordlngly~ In '~ay,, =]~ed, with a sub~tan~al fen~, and took tsJve p~ezslon..of ~the pretnises between tho )f. Oarden $treet, which are the premix, th~ eomp~alnb '.,...: , .. . . The 8peeial Term gave judgment m lj ~nt deliver up possession of the prsmises,,."~ plalutiff have possession thereof.*! The Oeneval Term modified the.i the words above quoted t~e.ifollowing mont of defendant therelni of Imsssge"to 'and atv~etoversaidgremises.' ~ ~ ;; ~'''/ .. J'ao~ J. A//~ for .the whi~ defendant elalms, ve~ted in ~the eenter of Garden streets st~bject to the N. 1~. O. ~; ~. 6'0, I~ id., 120; ./-~,~d~' v. On., $2 arh., '. V 'a, ,00 ~ 8mi~h'a .~ 0~. [~fl~ Am. ed],'~T;~ Day, 888; ~w of Bou,dary,~l~, ~k:~. ~dve~, fl~'~ --- W~ v. ~iff{, 14 id7 fll~; ~m V, W~~ ~88, note a; W~~ v..ff~; ~ ~ Y., 8~.; ff~~ o~ 8~ Barb., 8~4.)' Tho ~on*age . ~ardon~ atm~ i~ ~hould st~e~, ~ long a~ ~ma~h ~ street,'w~ ~ by Sawin a~d h~s grantees ~tuslly $65; Ang. on Wa~r~u~ms ehap. ~ ant h~ not the tttle m the promises,' he~h~ th~n whloh oould ~ not be lost ~by disuse.:" ~ 23 ~. Y., 68;/~tt'v. J~s/l$ ~lq.) To es~blish a~ ex~in~ishment, tho · Opinion ~f t~e Onto% per AX~m~', J. ~,~0~, 1~ M. & W., 789.) " ~ 8. R~ fo ~ndent/: The d~ ~, ~nd Peter ~ SaWn ~nvey~ ~ the line' of the ~;bnly,~ and not to the ~n~r of it. '(~Ai~ ,~81~ ~0 Wend, 149; H~ v. Mv~iok, 8 Kern., ~,1' Sand., 328~ H~ v.~, id., s[4~, 2 id., 934;' A~z~ v. ~a~, 4 ~bt., ~ ~.~ 16 ~arb, 166.) Defendant by ~ ~ ~'~ and offering it for sale, abandoned his ~ in ~bo ~mo ~ a psr~ of OSrdon s~r~. (Washb. on ~W4' 97; Us~ v. O. ~d & R. R. fie., ~ v. ~. ~ R. R. ~o.s t~ id., ~96; P~ v.. ia., lo, ~ ~. ~th plsmtiff and defendant appeal from tbo ~sn~ of the Supreme Oou~ in this ~tlon, ~h elslming ~ ~tifled to the exeluslvs p~esslou and ~nefieisl.enjoy- ~tlof th~ premises in dlsput~ The court ~]ow adjudged ~ntiff to be the owner in f~ and file de?ndun~ to ~M ~ an easement in' the p~mlses, substantmlly destruct. ~'~e vslue of the pmp~e~ ~ght of the plsi~. ~ ~i~ de,ye title from s common ~uree, ~ndsn~ ~ing p~or in poln~ of time ~o ths~ under ~ ~s plaintiff' elslms. The ~n~mvem~ hing~ u~n tho ~e~on and effee~ of the ~sut of the off~uel prop~ m ~.the premi~ owned by the defendant, sud the extent ~Nmt~ of that ~n~. The o~glnal prop~etom being th~ defendant w*ro a ~rt, subSivid~ th* ~. d~lllll II } ~{ng. ~, 'q~ th~.UR0o~ ~h/eh,.~ ,~,~{ ]] ~{~to an intent not to convey the soil of the steer or~,tream: [~.t,s,,mcient to exc' de from the operation' of'tlie grant ~t~}] ,of a h:ghway,, ~uead medium ~l~m, 'that the g~nt ~:" the z.v~ral ]gte or par~l~,~O diffW..* ffrantfl~t~ ]] ~z',witb reference to a plan annexed the measuring. ~r 3o thc '~aP. ,The, p~;mis,s,~0fk~hg,,dqfq,daull ~ ~ Il ~]o~{ng of which won]d exclude it, or byqines ~nd, measure= ] =~ ...' ~.~ the.fibfooda, t. ~S the gr,otgo:,gf'~.i~ ~a{~ ~.~ wh,~h we. Id ouly bring the premises to tbe exte,qor . gr, the bighw.y, o~ that they are bounded general}y by g;a~t ~rried,the' fee to tho cent~ .:~,~..~r~~ ]~3ine offhe, highway or along the blgbway, or by nn easement in f~vor 9f ~be c~te~ , e t · ,q. . ...... . .... . , ~ed ~as the true bo,ndary :iudieated, as qs the' :ease ~n,.a;tree,. stone or other similar object is desJ~ated aS a r.vn.pii~g st;On,n, ~;[~,a4 id ~e:.?e~to~,o~,~u~C~ ~,tls re~rdea as givi,~ the trne boundary or limit' of the O' stream, 9~ is ljmitqd ~ the o~t~igr]li,~ ~, =.;HL~ ~,,.(~e~%e v. Wa~, 10 0. B. [N. S.], 400; Wallace grant' ' · ,. 'X "' ' "" ' '" ~1 ~a]ydet?om the operation of the grant the soil oftlie h:igb- ~}it is.equally well settled that it does uot pass aim tho it has been snbstautially held, th;t in su;~ ~. [h~]~{ ~e0'eta,ns rbo title, subject only to any easement wbleh o{ boundary i~ ~h~r ona~o M'd~o~m$~ ~il o~ t~e street highway oC st~a~i, th¢,~9~t&~ ~,g: 8~eo,nb, 9 Gray, 36; I]oboken Land Co. v. ~ndant.e]Mtns title, describes the granted pre,niece as eom- .~' ',':; ..... .. .~; ,.~.~ ~.~ ,,~b,9~~ ~ng at'the interseetlon of the exte,.,or l~nes of two st,'ee%, :. ~q~, rJu9. n0weyer~ m ,t~, ~t~tg~,~g,~l{. ~ ~iah Garden street is One+ and so as ,eee~aril~ to exclude ~;~ul$~words ~ form a~,,g~re~og~ia..~9~~ ~fl, of. the street. The point thns established is as eon;' t~e g~aq~ ~q t~ee~t$~i~c, liv0 ofastrq~t,O~ ~q~git ~ng~.any monument weald bane been, and ' ~$r.parts of the dese qptioh; all the lines of rl~e ran~ed ~ m e.v~y ~e tl;fi~ th~ gran~o~ d~,qat iht ' ~,must'eontorm to the start.lng point thus.deS;gnaWed.: ~ df t~e soil ~hin.t~e,]jaea;~f ~ha. ~t,~hH~ but for this designation.of th~ oe~n,~ncemen~: Opinion ~f:the Oeur~, per.~.L~U~, J. ~ the survey,or boundary, the linea along Osw]ins s~e~ miAbC, wiflfin the ~ne~l, prin~plm~ ~err~ ~, ~ ~rded to the center of th~ sCree~ t~e y, ~e~ ,~ n~ly~ ~nflned to the~ ex~riorqf~ the~str~ts, 8o ~ to conn~t at thls~ starting ~int~z cis6 point w~ deelded By this court[ ,(~Z~ The defendant the~fore acquit, mhd has, no~tJ~ 8oil of tho strut, but the fee i8 in thep]a'nt~ff,.and ~ the ~ ~oisitlon may :~. entirely ba~n and the~ ~ this ~tion be enti~ly fruitle~ he is entitled to a jud~ for the fee of tho land subject t0 any easement*.wh~ defendant may have in the name. : ,. Tho claim of tho defender which has something b~ ~ty and ~mty to. sustain ~t, that upon the s~umpfl~ by the grant ~ Sawin the ~ of the, st~et w~*~ yet the exterior lines of Garden street beln~.oh~ ~nter~remaining the same, hls'bmmdary' changed 8o ~ ~ conform ~o the ~ednced width ~ and pre,rye his frontage upou it cannot The line,of his g~nt are fixed,and permaueh~ established in retBmnce to the elrcun*stane~,~'~ e~sted, and cannot ~ changed 'to eon~orm to~an~ condition, or circumstances, in the absence of any · e grant that tho parties contemplated s shifting or any change in the lines or in~aso of the granted, or to provide for any change in the line the street as the ~me should be adopted m' used. li~ ~rants are always ~ be interpreted iff ~f~ monumen~'and ei~umstances e~istlng at the'tlme,'m~ not be extended so ~ ~ include' other lands, by~ or by conjec~re that po~ibly had the parti~ fo~g ~n mstte~ affecting the grant, theymig] other or different ~rms. (Fal~ Opinion of the Cgurt, per, A 'i~8~ ~g'. Y~, 437.). ;.The defendant aoquired~no title or contingent, in.an~ part of the 6t~t ~ de6ig. the .map, in ~ference to whleh his lot~ w~ g~nted qth0r question presented by the r~rd of the defendant to an e~ment in.the p~mi~ in . The general rule i~, that where the owner of lan~ l~ys out ~ street through it ~nd ~11~ lo~ on each the, public have an e~ement of. way. or )a~ge, although it may nbt beeonle a public high- in. the ordinary sense of that term until the dedication and the street ~dopted by the ~orp0mtion, and of the lots are entitled .~s purchaso~ to have the or space of gronnd Jell.open forever ~ a st~et, and :~t of using the ~ay for every purpose that m~y be and reasonable ~br the accommodation of tho granted t.~either the corporation~ of the city, or the ;QE the grantor:o~n do.~ny ~t to im~ir this right the grantees in the enjoyment of it. .owners having the right to this ~ment may '~ the owner of the s0il himselfi {Ki~am v. 8la~, . gmni~d bounded on a street'~'r highway them bed oovena~t that there is such a way, that ~tor is concerned it shall be continued, and tlmt the ~n~e~his heirs and a~i~s shall trove the benefit Of it~ ~ ~ot,.by his assertion of ~ght to the fee and melosmg the ~d, d~troy or exting~iah his right to the e~ement. His ~ou,.~ed upon the id~ that he owned the fee of the ~eg that ~the lesser was merged in the greater estate, w~ m,~videnee of his in~ntion to surrender the e~ment for ~'.lmnefit of the owner of the soil, should his olaim ~ the ~ prove to be un~ounded. ~ An attempt to use the premises owner of the fee did not indi~ or tend to prove an intent Opinion ~f'the ~our~, per. ~tO aba~doli,the easement. 'Mere non-us~r guish the 'easement, neither 'doe~ a"dlai~n"ld~on~ist~ue~/ :the~e~ement 'have that effect. ~ '(S~n~l~s '~.' Y., 917; Ha~d v. Sfo~eM~ I00'Ma~; 491{"~ {*.,But it is. urged in behalf: of the'pla ut ff..th~ th~'d~ ~ut by tbneing'ir, thc~sln.~ abandoned the and, ~hat by, such aband?nm~t ~'~as extmgm?,~' t;)re~e~:~ It ,is not easy~ to'define ~hat' acts et tho~o~ u,i{e~.~,sut'mu~ ~ judged by ~he'iutentlon mdi~ i, po,'ste.'~o extin~ish :it, Units other pe~ous have by suoh ~ts'to treat the'serwent.'estate ss if fre6'of v~tude.. In. sueh.~se the e~eme~'could not ~'~ w~thout doing :mjustlce to .those~ who' have thith thst~lt;wss abandoned, and upon the ap~ { abandonn~ent. (Washburn on Easements~ 543.) and Crain v. F~ (16 Barb., ]8{),'Were decided~malhl~ tbe theory of an estoppel,, the court,in each of tho lug strew:upon the fact:'that the ~owners of the olaimed bad, ~by their acts.and the manner in whtoh bnilt'.upoU ~the' premlhes 'inducSd tiaa.parties. ~quiring tlt]e to the servtent premises to believe :t~ were free fi'om the buFthen, of the" ease,hour; ihere has been no chan~b'in tbe title, '.and been ]~ to change their position or condition' of:the sets of the owner:of tne.easeme~t, and mshme the easement without inj:ury to he may do ~, although he may teinporarl] ~me, or bis ~ts may be inconsistent ~tb ~.>.~.[n~ this ~se tbe':aet of the deibndant 'id't ~'i~qub; must be retbrr~ to~'a' peri)om' abandon the ~a~ment. Both pa"ties clalmed'~ be ~w~irz~of .thn land incl0sed';' .the p]amt~ff eli~itn'in~' that: ~h,,'el~ange m the llne Of' t]~e street, it?as' dis~ba~'g~d of ~ment in favor of the' plaintiff in r~pect'to'hls lot, the. public; and'the defendant claiming .thai' by the ~.in ~he line of'the '~tl~et the bonudary line was upon the line of the street as changed. The e was with a view to the benefitp which 'would r~ult , ~ntroversy that might arise from'a~ual possession, not with intent to abandon the ~ement if, in fact, his line was upon the street ~ originally designated. inclosure was the result of a mistake as to the limits of rath~ than evidence of'au :intent'to abandon the , to a street upon the westerly line and adjoining bis lot boundary should be finally determined. ~t la,also claimed in behalf of 'the plaintiff that the defeud- ~"~a~ing taken exclnsive possession of the premises in dis- ~,the judgment' should bare been without qualification ~o$,'o~,the easement, claimod~' In support of this propo- rtion he cites Will;ams v. N. ~. ~. ~ail~oad ~16 N. Y., 97); ~ v. O. a~d ~. Railroad (24 id. 655); ~"~on' Railroad (25 id. 59~) P~r~ v. ~:~d (~6 id. 120). In the first three eases reibrred to defendants were trespassers, baying no right to oocnpy ~4n' ~uo fo~ any purpose; and in the las~ case~ cited' ~nd~ent for ttie plaintiff was reversed by this Court so ~.gthmg ~s dec~ded affecting the question now made. plaintiff here w~ not, as against the defendant, entitled ~ajndgmont without qualification, and which might be held ~troy the easement. A jfidgment for the possession, ~ the easement, gave it ~11 to which it was entltlet. ~d General Term of th~ Supreme Court ~roperly modi- ~e ']udgmen~~ at' the Ot~cmt by quahfymg the nght of ,~tiff,"w~/was a'ot~ ~ntlt~d ~o' the' posse~idn a~: a~y and divested of tho ~asement of the defehdant. ~'i~nr againkt the defendant, g~ving ~he plaintiff as owner ~f~ afl Unqualified ~ndgment for tb~ possession, Would nave ~ ~rom~ous, a d o ~ y ,d toadd~t~onal ht~gataou, m wbxe~ -i sta~t or ~ neither party vou]d have gained any tiling.. The iud ""'"' appealed kom ~blishes the righ~ of th,' the.affirman~ nout costs to mthor party, as a~inst the Other, One who ~ks ~ establish a ~ght tn hostility ~ a m~rd~ lit ~cur*ty u~n land, under and by ~ue ~* · ance orprior ~u ti~ . . ~ o~a prior unreco~ chaser of his "-his or ...... tua] notice ,o the mnn upon ~ ~a~ and ~ ...... c~ su~ ~ would p~ a found. ~ --m~ ~tual noti~ may ~ ~f~ ~e ~ion which will be equivalent to set,mi o~ce ~ s pnmh~er must be an actual, open and vis hie oc · wJ~ the title of~e a ....... cupstlon, Jn ~on~. or for a ~c al o- .~-- Y co~. nol wffi not su~ce., V I u~ Const~etive ~e pr~clple of ~nstmeflve noti~ ~1 not apply ~ ~ unlnhablt~ unfinished dwelling.hou~.~er~g a gght ~der ~o~R, J., df~n~,) P~y ~ an action for for~los~ of t' - prio~ty ~op~ affir · · .y. nd eonnt~ mm~ a..1],dgmen~ ,n favor of defendant Volk~gi~J ,~n a aee~moa of the eou~ . . . ~ o.oug,; xor Cne t~ree]os,re of s o ~ven by Veokor to p],in~i~ n-on a l;ous- ' '": '; =aswer or de~endaat Volkentng~]] P~e v. Waring, 76 ~. y. 470; Bemmtt v 184 Lo~ z A~Ns et al ' · : ~tement of c~e. ,, . re~on~ble ~ost~ and expense~ of th~ party.~ ~d ~j~ted by,the cou~ ~Mn~ the order. ~ By, v~ions there ~ ~ bend c~ge of the ~ju~tiow in the ~ or~r. They simply pm~de for adj~i~fion into effect, or for:its.ab~do~ent. ~ide, ~ve~d or abandoned.,~, ~e~ the d~endants,'di~ ab~don the pro~dlng, and the order of full fo~8 and e~ecC The ~alue~of the,pmpb~y,int~ the pla~t~ h~ on~ ~n liti~d between, th~ p~i~ do~9~ by a ~m~nt. ~b~l, ~d we can ~n fo~ ~mg ~s ~e ~le thatH~ ' ' out of the ~neral ~ ~ ~ncluded by a~ ~ju~cation' thus m~e. ~m ~ e sn ~sement tn the strut which h ~ prope~y ~gh~~ : u~a st~ ~d ca~ed a ~p to~ ~ ther~f.' A ~tten exp~ flonw~ ~h~ to the ~p~ gl~g ~e l~tion of tho str~ ~d , d~o~, l~tlo~ and numbem ef the 1o~ In ~s s~tement, argue'' ~ d~?~b~ as a street three.~a ~de. ~nuing sou~.' on ~d ~p, me ~st line Of ~ ~t is delin~t~ leng~; i~ w~t ~e Only zpp~m a~ ~nning ~m the no~ end ef s~t for a~ut two-~r~ of its len~: ~e 1o~ on the w~t d~d~ in tho st~ch~ ~mtem~t~ ~ ~ ~ld'~e whole tmctfex~Pt~ ~ig~t 'of ~e vil~g8 lo~ 'lyiag ~ ~t of ~t ~enu~,~.and:a su~t;g~t~ convey~ the l~nd , of ~ i~lu~g the avenue; the d~ howeve~ ~ ....... ~L2tomeQt of case. , 85 ~.,st.,met~ Defendants, who were own. ers of the, ~lgh~. lot~,p~ entered with teams upon the land we~t of the ass~ line of the fi'out of their lots and south of its west fine as it appeared._ upon and plowed up the s~me for the purpose of grading it as a In an action of trespass brought by plaintiff, to whores of the land west of defendant's lot had been conveyed, by .deed- him on the east by khe east side of the aven~e. ~e,/d, to a? easement In thc ~ i~ guo as a benefit; and so that the act[on was nbt ,,~ ,(.~.r~,~]ed April 11. 1898; decided April ~6,. ~8.) , ~J",:~ ','~ .; :, ~ ,. Il ' ~ from 3udgznent of the ~nerM Te~ of the Supreme I I es tin the rough judicial depa~ment enter~ upon an order ~O 'February ~, 1892, which ~ed a judgment in favor ~kof ddfendants, en~red upon a dec,ion of the eou~ on t~al ~t Special Term. ' ' ' : ' ~ ~he nature of the a6aon a~a mo f~, ~ i~ ~]~ ~ ~anm~ lot"appellant. The fo~elo~ ~'~ p~or me,gage '~pes out any rights or 'c~s ~der a ~quent ~nap, and puts the whole utl4 ~ Smith ' Defend. ~ c~not questio~ th2 title of S~th ~der the ~o~elosure ~ othello, and are estopped from questioning 4 Den. 41.) Tbls fo~closure w~ ~n 1861, thi~y ~der the old statute, which made the affidavits evidence of their contenm, and made the ~le UivMent to a sMe under the dec~e 'o~ a ~ of equity. 8~ R~ S. 547, 338, ~ 12.) No proof at,king the title ~ven, and the pape~ a~, therefore, Smith o~ed the mortgage, eer~nly ~ agai~t ]defenffants, who abe hold under Smith. fA~not v. ,4 Den. 41; ~n v. Willett. 42 N.-Y. 146.) There' ;'~an abandonment~ Of the lane if any ex~d. (H~ ~doek, 43 N.' YJ S[ R. 748.~ The defend~' elMm, that by referdn~ ~ the map iu the earlier deeds and m the lots and E~t avenue as laid on the Porter' map, · ey have some right beyond and south'of Ho~n street Sm~ns VoL. XCIII.. II IIIIII II IIIIIII IIIII IIII IIIII II III i Ill IIIIIIIIIIIIIIIII I III I III I IIIIIIIIIIIIIIIIIIIIIIIII IIIIIII III II I aa&, lot,;6i, whei-e ' ' ' plaintiff's'land first 'jmnS them ~o~,; 8~ id..~3 ;, T~z~ jr. ff~e, 120.id~ ~ vt ~1~ ~st~d~. ~22 id~ 880; ~ootv. fee of all the lands 9f pla~tiff, of tho school dist~et, of th~ ~ot n eonveye~ to ~e0S Atkin;, ahd He.on.street eonyeyed to aefgndant Atki~ ~ent over any part, for one ~nnot lm[¢ mx e~etneqt ers o~ the fee of all the land, fl~ey held no of whmh he h~ t ~e fee. (Pavs~ v JoA~on. oo ; o~er v. ~ae~s, aa Hun, 481, Welle ~: ~a~ ~ Y. 480 ~t v W~ha~ 107 id 3aa.''~ ~r~wj~a, ~u m~ ~U; l~e~e~ ~. ~ i20 ~7~ 354) Th~. ~ of *b? ~hqle land ~Pm 1M9 ..... . ' , .... . Hun,, 481L,;~qt. y, ~aCl~e: {. De~,i41 ~ ~, n0t.~Y~u pr [eserved t~e v Col}&- allowiRg defendant ~ber~ Atkin~, to answer ~he q~ ,~ ~ qn,~ou bougllt the land did you buy it in re~e~ that aV,uue ~" sad" Did you buy i, for the pu~os0 I II ~,,ll*p.] ;, . Statement of case. 187 (G*~ne v. Collins, 86. Iff. Y. 247, 254; Oowclrey v. bRi, ~4:~ id,,.382,; Wdls~ v.- D~, 74 id.:531; ~s ~,'.~. ~ & ~ ~.; ~,:0o;,~ l~l'id. 435; Sw~k v.: ~t,k'&,:~], .17.) Tho 'exeepfion~ h Well ~ken to that ~ .the. ]~t conolus~n of law, whereby the trial ~u~ ~m,~t ~e~defendsnts ~e entitled to ~ jud~ent di~ ~gYtho complMnt,.~th cdsts, a~d 'ordered such judg- ,~(G~ v. Collins; 86 ~. ~. 246, 25~, 253; ~ars~ ~}.68 id. 63; ~eHs v. G~rbutt, 189 id. 430; A~*~, 101 id. 625, ~ootv. ~s,;107 id, ~.~lBmlth for r~pondent. The appeM to ~ ~u~ was ~ed, and there is no c~e properly before: t~s couP. ~Z,Ov;,Pro; ~ 191, subd. :3; S~l~ ~. ~a~s, 77 ~.: ~. ~ v. Sdo~ld, 67 id. 311 ;~ ~ v. Vo~, 7~ ~688,F'T~ v. ~m, 18 N. Y. S; R. 533; 110 ~ Y. ~ ,+, ~i~, 7' Civ. Pro. R~r. ,~00~; 9S ~.~ Y. ~)~e~o the omem of ~ ~a cityior ~l~e ~yout ~in~ .lo~s, ~th streets ~d argues intemecting ~ocand ~ll tho lots ~th .reference t6 suc[ streets and .they cannot ~te~ards deprive,their grantom of ~ the ~fitl,of,ha~ng such streets and ~venues kept.mpen; and ~m~ ,pdnclplo is applicable to a ~ilar de,cation of l~ds to be used ~ an open ~u~e br public park. ~,eM,,v; U~en, 4 Paige} 510; ~:v. ~. ~.~ ~. ~J *~, X45; Wy~ v. M~, ere., 1 ~ Wend. &87; Cee ~l:;t~ds~i v.. ~; Y;~ ~. ~.: ~. Co,, 23 N. Y. 61; ~9,), Z The n~ht. ~o ~ E~t avenue as a st~et or avenue, p~h~ng l~s the~on and bounded, w~ an ease- ~ana appU~e~nt to the, lands the~by thus conveyed.. It ~ by de~tlon and w~ ~ effec~al ~ if ~ea~d by a~lu*e ~nt. (~a~ y. ~ev~ 82 ~. Y. 649; ~ Y. ~ ~. ~. ~o, 90 id. 145.) The ~ght of way IIII I Illll I IIIllllllllllllllllllllllllllllllll LORD W ATXI~S et al. Opinion of tho Otnn-t ,per ~'Bnrr~, J. 'created by the deed bf ~IcGr~w to O~rwln to lan appurtenance to the lot ednveyed~ psese,d .from' Corw~n~ to Pi~e, and Pike to'Stoekwetl,'and: St~ckwell'to. Jac~b ~tklns,*~ ?s~ that he lind all the rights tha~CoiWin had. i~u~o/~z~d, '55 ~. Y:, 98; Core,took ~v. orokn~oa, ~6 id.,620 - ~,. 81~ 'N, Y. ~ 557; ~H~t~ ~.~ O'B~% ~. The complaint ch~d the de~dants ~, u~n,,~e, pla~t~s lan&~ by en~ ~out aut~o~ty, with ~ms, and plo~g the~ same. and ~ju~ ~e p~inti~s cm~.. The de~end~ ac~ by, ~le~ng ~at the ~ The pl~ h~ ~ver been worked ~ a' but/~l~ tho ~done or perfo~ed~by · e dand in'* ques~on we~, confes~y~such ~ 4hey ~gh~]]y do u~n the ~p~ow t~t the.~ ' ~ in fact a pubic st~t or h~hWay~ ,~The pl~n~l~[ ~The ~sues be~een ~e pa~es ~e mos~y if no~ wholly u~[ · qu~Uo~o~ ~t,~ and the oourts belo~ have. f~nd ~th.,~[ defend~ ~ It ~ not c~med out'~by ~y publio autho~ty,, but ~ the ~e of the pubLic ~ a ~tr~t o~em of the land,nd from :wh~m definers' title ~ de~ved. The st~p of ~nd alle~ wrongful onto' parcel of ~ty~ven Central. College by. Gi~oreK[~he~.i~ deed recalls an inte~ing, chapter in the that day, recent enough te ~ within the memor~ ~ in ~tive Life. The colle~ w~ preject~ by others w/th a view ~ aid in the c~de that they LOrn) v,-~kTKZ~S et a.l. 'q89 Opinion of the Court~ pe~. O'Bax~', J. institution of slavery;. ,It ,wa~ intended~ as ~, tb be not only an instrmnent.for~the propaga- 'tbe'~principles of its founders, but a home ~vhere the ~uth might be educated. : The buildings tbls fifty-seven ~res, and the project~rs~ with com~denee which colored all their views of the that a consi~lerable village .would .soon ~-and cluster argund them.. The trustees div/ded the · .village. lots bounded upon. streets and: avenues. they caused a map to be made of the :northern of the. tract, upon. which these village lots and the and 'avenues were shown, and a written explanation was such ~n~p giving the location of the s~reets and and tile dimensions, location and number of the soy- village lots thereon. ~From this written statement it avenue was a street three rods in. width run- north.and: south. The easterly boundary is delineated. map ~for the full'length of: the street~ but tb.e' boundary appears only, by a linel,on the ) three rods .west of the' easterly: boundary but · south only about two-thirds of,~the length of avenue~,,.es~ claimed by. the defendants.. The land on the is.all divided and plotted into village lots, and nmnbered ~ frem one to eleven, the last named being the most , lot.. Though the westerly street line is not deline- in front of the lots on the southi from seven · yet these lots, with tho others, are all by numbers in the written statement attached to the ~ as bounde~., on East avenue. The/eons ~ ~,uo is in front seven'lots on the west, and if the westerly Line upon map referred to was extenfted south the same distance as then it would be within the boundaries of the and tl~e defendants had the right to'grade:and prepare land there for use as a street. The court below has found a dedication of the land in question to the use public as a street. The plaintiff is the owner of four west of the seven village lots, and he claims '190 .Lo~D v. A'r~s et al. Opinion of the Gourt,~per O'Bnr~m~ J. that his title in feeiextends to the.~vest, line of the lots ~ appear on the map~,which would ~ exclude ~ the .street whereas the ~defendants claim that plaintive easterl~ and their westerly ,boundary are, ~eparated by rode in .width. The college is the common source of title, and it evidently intended to dedieateithe,.strip of`. land in to the purpoass of a public street by. the.written attached to the map, describing ithe~lots as.~on East though the: westerly street~ ][ne was.not exhibited for the,whole distance north anti,south, .~ In. 1858, apparent that the college was not::to be .~ success, trustees conveyed the whole tract,to Garret :Smith however,, eight of' the village lot~ ~!]ying.ou and east avenue," which lots are described;in the exception, by,,nu~ bars.. :This deed~ therefore~ recognized the existence of~ stree~&t the,paint in question.,, In 1872, Smith con~eyed,t~ wbole:t~act to.~McGraw, sUbjeet~ hOWever, to thc reeer~atj~ expresasdAn his deed from the ~rustees, and in 1884, ~fcGra~ ,conv~yed about eight acres, including the college buildin~ k the union, free schooL, This. grant extended to the e~t ~d~ of East ~avenue~ .end includes the etreet, but recogni~ jt~l axistenae as such.. ~he same year the trustees of the conveyed about ~four~lacre~ ;to .the plaintiff.:, .This, extende~d :to ~the ~ast .lhm o:~, East avenue, and~ included street, or tho land which th~ defendants claim was an eesemen~'for a street.. The plaintiff, therefore title with a distinct reeegnition.in his deed of the a street da the east side of it;t-,.It is of but little that the deed assumed to convey the sell included i~ street boundaries~ The grantor could eonvey it to tt~e sasem~nt, and that ist,the effect of the The important thing in the. deed is that it existence of East avenue in front and west of of the defendants. So' the title or, the defendants,tb~ village lots, in front ,of which they ~attempted to a street, came to ti~em through several ~ from the trustees of the college, in all of which F, ast Il[fill [ [ [ I I Il ~,,.t .~:.;-~ . rlC,.] Lo~u v. A'r~s e~ m.~ ~1~91 ,[Y, ~] Opinion of the per J. ~h ~ferred.to,.~r. t~e.lot~ are de~bed ~,o~.th~,~t~de~o~, ~r on.the avenue, Thee ~ac~ and circ~n~ j~t~;~e ~nding pi the t~l cou~ that the ~pablia.~treet.0r h~hway, by dedication. ~ ~,.th~e pa~i~, ~thongh the duties an~ burdens of. ma~t~g ~it lara. not ~imposed upon tho pubhc ~til a~epted ~ell settled that when the o~er of l~d lays it.out in~ d~ ~ct lo~, with intersecting streets.or ~enues, ~d ~.the lots ~.~th reference to suc~ streets, his ~tees or succ~so~ ~ot af~rwards be deprived ~t~ets ~ept open. When, ~ such a ~e, a iot ~? a s~et, the purch~er a~d hh grantees have an e~ement ~h the street for the purposes of accel, which h a property~ ~.:~sff~ v. ~ ~ C. ~. ~., 23 ~. Y. 61 ~i~'s ~k, ~., ~ v?~, 64 id. 65 ;' T~r v."~' 6~ id "6~9'; ~ W'AI&o, 18 id. 48.) ' ' ~ The mare cqntenhon of the plamt~ ~eem~ ~, Oe that afar ~d about the time that Smith t~k the conveyance .of thq ~m~y from the college, he abe fo~closed a pd~r ~money mo~g~e, and took title under that, thus ~ish~' ~I' e~gmen~ for street ~urpos~ ori~natifig ~ter' ~e~ c0lleg~ ome pa~e~ed of the proper~y, There is no ~ding ~ sue- ~ t~is cla~, though it does ap~ar ~ the e~den~. ~hat ith did fo~c]ose a mo~g~e, under the statute, glve~ by ,the college for a po~ion of the pureh~ money, and pur- led the land upon the sale. It is not impar~nt w inquire ~ W the pu~ose or effect of this preceding, ior, more than ~n y~rs afterwards, when Smith conveyed to McGraw, .he ~ited the grant to such es~ ~ h~ b~n ~ey~d to him ~,~e deed from the ~llege.' He did not ~umq to convey ~t the pl~ntiff claims. In p~ch~g under the statutory ~Io~closure he could have re~fized the division of the proF :~y, sub~quent to the mo~e, h~ village lo~ [n~ect~ by str~ and ~unded thereon. Indeed, he w~ [n equity '~ ~ ' f~tatement of case., ';[*VOL bound ~ ~e ~o~ ~f~be ne~ ~iCu~tio~ · 'w~eh'h~ ~n ~n ~he;meant~ TI,al he did &y the f~ that he ~b~quently ~onveyed th~ Wh~]~ ~b~eet ~ eve~ment 8r Mght that e~or~ a~t 'the ~CoRe~, ~h~ g~. So~e ~k~n atthe t~ am ~u~ ~n the 'bMef 6f ~un~l for~e 1~' P ~- ' We have exa~n~ they do not ap~ar ~ ~nt any ]e~] error~tha~ eo~d] p~judi~ h~, the jU~ent ~hou]d be~ ~ent ~th ~m, and ~ e~nsion of time Of ~yment, b . r ~ons, an~ ~e wa~, u~n di~ve~of ~pudiat~ the ~m~o~, :b~ought ~ ac~on'~o"a~ ~ide the su~,s d~r~, ~bas~ 'theban, ~ng ~he ~d re~v~ a jud~ent ~ating the ~Hef soughS, ~M, t~t~ ' ~bility of the s~e~ Upon ~e g~ian's bond ~ not t~n~ct~on ~o~d ~ ~,t~, and so there was no binding or V~i~ , ~on bf time ~f Pa~ent~ 2nd t~t ~id Judgment ~as bin~ng ~eties in ~ ac~6n upon the bon~:,.~, :~ , '~r~,,:ji ,1~ ~ ~ ~ec~e, ~e ~ dete~n~ and fix~ the amount due f~ , ~n. ~ ~, ~t t~ ~s ~0ncl~ive agai~t ~ ~ ..... u onthe '' - ' ~ · . , ~et~ iff . P ~nd, t~t ~e Ward ~d not ~ve 0~'ed th~ m the S~,s O0u~, and ~ ~as obHg~.~ r~ ~ the Coup, and t~t co~ ha~g obMin~ juH~icti~, ~d power to, ,mine the amour due, and its judgment ther~n ~ the ~me fo~8 ~t as a dec~ of the su~. ~ .... me warn to prompt~ rep~] dia~ the tm~ction, and ~ tender ~ck w~t he'~ r~eiv~, woMd ~ve been a defe~ in the action ag2i~t Ms gua~n, the ~udg~$ · ereM n<eS~y de~ermined ' - that there was no want of dillgsncet this wa~ concl~ive upon ~e sureti~. ' . . [t ~m~ that as the ' .' -; , % , - . '. . surett~ ~ght ~ve rSh~ to ~r p~judid~ decree of the sur~gate, and as an oral,loft to a~ck it la Southold Town Board of Appeals MAIN ROAD- ~TAT£ ROAD 2.5 SOUTHOLD. L.I., N.Y. 11cJ71 TELEPHONE (516) 765-1809 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, .IR. ROBERT J. DOUGLASS JOSEPH R. SAWlCKI April 18, 1984 Abigail A. Wickham, Esq. Wickham, Wickham & Bressler, Main Road, Box 1424 Mattituck, NY 11952 P,Co Re: Appeal No. 3223 - Thomas and Barbara Mercier Dear Gail: With reference to the above application, please provide us with a copy of an affidavit and other documents which would indicate an easement to the applicants for ingress and egress over the "private road" to the parking area in question. Yours very truly, GERARD P. GOEHRINGER CHAIRMAN STATE OF NEW YORK) COUNTY OF SUFFOLK) SS.: ROBERT A· CELIC, being duly sworn, deposes and says: 1. I have been a licensed real estate broker for seven years and have worked in the real estate field in the Mattituck area for sixteen years. I am the owner of Celic Estate Agents, Inc., with principal office at Mattituck, New York, and am thoroughly familiar with residential and com~ercial real estate values on the North Fork. 2. I have personally examined the premises owned by Thomas and Barbara Mercier at Love Lane and County Route 48, Mattituck, New York, and make this affidavit in support of their application for a use variance. 3. In my opinion, a reasonable rental value for the property as a residence is approximately $300.00 per month, with a maximum of about $325.00. The major limiting factors on rental income are the location on a busy highway, making the property noisy and unsuitable for children, a dan~p basement, very small area with one bedroom and a porch which can serve as a makeshift second bedroom, and the need for extensive repairs. In addition, the house appears to be poorly insulated, resulting in high heatin costs. 4. month taxes, mortgage, Based upon monthly carrying charges of $75.00 per $35.00 per month insurance and $525.00 per month a fair return cannot be obtained on the property. Even if the mortgage payment was considerabley lower, the anticipated rental would not carry the property. 5. In my opinion, the value of the property for residential purposes is between $38,500.00 to $45,000.00. This is based upon property value of ~,500.00 and a residence value $30,000.00, with possible increment only because of the shortage of local housing which has an inflationary effect on value. The limiting factors on the value of the residence are, again, the location on a four-lane highway, a very small lot without room for a garage and the fact that major repairs would be necessary, including insulation, painting, correcting the damp basement and slanting floors, to name a few. 6. The value of the property would be considerably higher, and its expected return would be fair and reasonable in relation to the investment in the property, if the use variance for professional offices were granted. I do not believe the proposed use would adversely affect the neighboring property value 7. Our office had this property listed for $55,000.00 since April, 1983. There was only one offer made of $54,700.00, less a $3,000.00 commission, for a net price of $51,700.00, and was contingent upon obtaining a mortgage of $40,000.00. Since the purchasers could not obtain a mortgage, the offer was terminated. We had several parties look at the property, but they Were not, interested in it as a residence because of the location, size of the residence and lot, and the condition of the property. 8. Based upon my knowledge of available properties in the Mattituck-Cutchogue area, I would say that available - 2 - professional office limited. space, on a purchase or rental basis, is very Sworn to before me this 5th day of April, 1984 Notary Public LEGAL NOTICE NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Pilovisions of the Amended C~de of the Town of Southold, a ~egular Meeting and the fol- low, ring public hearings will be held by the Southold Town Board of Appeals at the Town Hall, Main Road, Southold, NY on Thursday, April 5, 19~4, commencing at 7:30 p.m. and as follows: 7:30 p.m. Recessed Hearing -- JAMES F. DRUCK III (from 3/2/84). 7:35 p.m. Application of JAMES A. and EDNA-MAE CHRISTIE, 675 North Oakwood Road, Laurel, NY for a Variance to the Zoning Ordinance, Article III, Section 100-31 for permission to re- separate Lots 31 and 32, Map of Laurel Park, Map Ne. 212, existing dwel¥1n~. County Tax ~ Avenue, Mattituck, NY t uy Map N~27-7-15 and 16. ~ Wickham, Wickham & 7:40 p.m. Application of ~ Bressler, P.C.) for a Variance ROBERT A. CAMPBELL, 140 J to the Zoning Ordinance, Bay Avenue, Greenport, NY J Article III, Section 100-30(A) for a Variance to the Zoning ( for permission to convert an Ordinance, Article III, Section ~ existing single-family 100-31 for permission to locate dwelling with an insufficient froatyard setback from Wash- ington Avenue. Location of Property: Southwest corner of Washington Avenue and Mid- dleton Road, Greenport; County Tax Map Parcel No. 1000-041-02-001. 7:45 p.m. Application of LINDA MILLER FAULKNER, Box 787, Cutchogue, NY for a Variance to the Zoning Ordinance, Article III, Section 100-31 for 0ermlssion to re-separate two parcels with insufficient area and width. Location of Property: Southwest Side of West Creek Avenue, Cutchogue, NY; County Tax Map Parcel Nos. 1000-103-13-4 and5. 7:50 p.m. Application of CAROL PLOCK 10003 North Bayview ltoa~l, ~outhold, NY for a Variance to the Zoning Ordinance, Article III, Section 100-31 for permission to re- separate two parcels with insufficient area and width, and a Variance for approval of access, New York Town Law, Section 280-A. Location of Property: 10007 North Bayview Road, Southold, NY; County Tax Map Parcel Nos. 1000-79-5-17 and 21. 8:00 p.m. Application of GEORGE and NATALIE WIESER, 1415 Harbor Lane, Cutchogue, NY for a Variance to the Zoning Ordinance, Article III, Section 100-32 for permission to construct accessory swimmingpool in an area other than the rear yard at 1415 Harbor Lane, Cutchogue, NY; County Tax Map Parcel No. 1000-97-6-10. 8:05 p.m. Application of ROBERT BROWN, Main Road, Greenport, NY for a Variance to the Zoning Ordinance, Article VIII, Section 100-81 for permission to construct addition with an insufficient frontyard setback. Location of Property: 74450 Main Road, Greenport; County Tax Map Parcel No. 1000-45-06-006. 6:10 p.m. Application of BERIT LALL1, 1405 Narrow River Road, Orient, NY for a Variance to the Zoning Ordinance, Article III, Section 100-31 for permission to construct garage addition with an insufficient rearyard setback. Location of Property: 1405 Narrow River Road, Orient; County Tax Map Parcel No. 1000-027~03. 6:15 p.m. Application for dwelling use into two professional offices. Location of Property: 49~ Middle Road (C.R. 46), Mattituck, NY; County Tax Map Parcel No. 1000-141-01r21; "Map of Clara W.R. Reeve #212", Part of Lot 5. --~:25 p.m. Application for PETER and PATRICIA LENZ, Main Read, Peconic, NY (by Wickham, Wickham & Bressler, P.C.) for Variances to the Zoning Ordinance: [al for approval of insufficient width of two proposed parcels and [ b] for approval of access, New York Town Law, Section 280-A. Location of Property: Right-of-Way off the North Side of Sound Avenue known as Private Road #11, Mattituck; County Tax Map Parcel No. 1000-112-01-011 and 012. 8:30 p.m. Application of CROSS SOUND FERRY SERVICES, INC., Box 33, New London, CT 06730 for a Variance to the Zoning Ordinance, Article VII, Section 100-70(A) and Section 100-71 for permission to [al construct principal building with an insufficient frontyard setback from the easterly property line and [b] establish a ferry-terminal use in this Business District, Location of Property: 42175 Main Road, Orient, NY; County Tax Map Parcel Nos. 1000-015-09.11. 8:45 p.m. Application for MARY GRIGONIS, 550 Wells Avenue, Southold, NY for a Variance to the Zoning Ordinance, Article III, Section 100-31 for approval of insufficient area of two proposed parcels located at the west side of Wells Avenue, Southold; County Tax Map Parcel No. 10~0-061-03-08. For information concerning these matters, please contact Linda Kowalski at the Office of the Board of Appeals, Town Hall, Southold, NY; tel. 765- 1809 or 1802. Those persons having an interest in these matters may appear and be heard at the time and place specified above. Dated: March 17, 1984. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN 1TM2~4528 STATE OFNEWYORK ) ) SS: COUNTY OF SUFFOLK ) SUSAN W. ALLAN ofGreenport, 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 said Newspaper once each week for one weeks successively, commencing on the 29 th dayof March 19 84 Principal Clerk Sworn to before me this 2 9 hh dayof March 19 84 M~ry G. Go. an Laurel Lake Mattituelr. #.Y. 1195~ March 5, 1984 Board of Appeals Town of Southold Southold, NY 11971 Re: Petition of Thomas R. and Barbara D. Mercier Gentlemen: I have your notice relative to the professional use of Mr. Mercier's property on Route 48 and Love Lane, Mattituek, New York. I strongly support his petition as I personally feel that it is the pro@er use of the property. Very truly yours, Oorman e/e Wiekham, Wiekham, & Bressler, Esqs. Eastern Long Island Hospital 201 MANOR PLACE, BOX H, GREENPORT, NEW YORK 11944-1298 51 6-477-1 000 February 28, 1984 Mr. Henry Raynor Chairman, Planning Committee Southold Planning Board Southold Town Hall Main Road 8outhold, New York 11971 Dear Mr. Raynor: I am writing in support of Dr. Thomas Mercier's application for rezoning of a parcel of land on the North West corner of Love Lane and the North Road (Route 48). It is my understanding that Dr. Mercier plans to locate his practice there permanently. As you are aware, Dr. Mercier has a thriving pediatric practice and is the mainstay of our Pediatric Services at Eastern Long Island Hospital. Your favorable consideration of this request will be greatly · appreciated. · cerely, Charles E Kue Executive Vice President CEK:hqc cc: Abigail Wickham, Attorney Thomas Mercier, M.D. ESTABLISHED LEADERSHIP IN HEALTH Eastern Long island Hospital 201 MANOR PLACE, BOX H, GREENPORT, NEW YORK 11944-1298 516-477-1000 February 28, 1984 Mr. Henry Raynor Chairman, Planning Committee $outhold Planning Board Southold Town Rall Main Road Southold, New York 11971 Dear Mr. Raynor: I am writing in support of Dr. Thomas Mercier's application for rezoning of a parcel of land on the North West corner of Love Lane and the North Road (Route 48). It is my understanding that Dr. Mercier plans to locate his practice there permanently. As you are aware, Dr. Mercier has a thriving pediatric practice and is the mainstay of our Pediatric Services at Eastern Long Island Rospital. Your favorable consideration of this request will be greatly appreciated. /~cerely, ~ Executive Vice President CEK:hqc cc: Abigail Wickham, Attorney Thomas Mercier, M.D. I I ~ I I xL ! · ] I ;' I I I Z-oF' .-% PROFESSZONAL 0 F F:O___E T H 0~. l~__~_.d_,'_._~l_~..~_I__[~.,!.._~' D__ i~ ~Hl$ SU~¥1Y IS,j~;¥1dL~llON O} ,S'~,~ / ¢ ' ~0 '=1# WICKHAM, WICKHAM ~ BRESSLER, March 12, 1984 Southold Town Board of Appeals Town Hall Main Road Southold, NY 11971 Re: Application of Thc~as and Barbara Mercier A~i No. 3223 - Co. Rd. 48, Mattituck, NY Gentl~nen: In answer to your questions regarding the above application, we enclose five copies ofthe survey of the property revised to show the information you requested, as follows: 1. The size of the building is approximately 37' x 24' for a total square footage of 888 feet. Access will be frc~ the private road off Love Lane, and therefore, no curb cuts are proposed. Since the private road receives minimal usage, and the size of the property is limited, no aisles for maneuvering are proposed. Parking will be as indicated on the survey. The parking area can be screened frc~the residence to the West by evergreen shrubbery. In addition, there is a drop of several feet in elevation between the two properties whichmlnimizes impact of the parking area. The ramps and rails will run frc~the parking area along the brick walk to the sidewalk on the east side and then to the main entrance. No ramp is necessary since the deer is at ground level. Ingress and egress to and from the building itself will be frc~a the entrance on the east side of the building. There is also a door on the west side of the building which will be used for staff and ~nergency purposes. No ingress and egress will occur frcm the County Road or from Love Lane. All access will be from the private road shown on the filed map. 7. No fences or barriers are proposed. Southold Town Board of Appeals Page 2 March 12, 1984 1984. encls. 8. There will be no structural changes to the exterior of the building. 9. There are no existing paved areas. The parking area will be surfaced with a suitable base, probably stor~. I hope this answers the questions raised in your letter of March 7, Very truly yours, Abigail A. Wickham Southold Town Board of Appeals APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONI$, JR. SERGE DOYEN, JR. ROBERT J. DOUGLASS JOSEPH H. SAWlCKI Abigail A. Wickham, Esq. Wickham, Wickham & Bressler, Main Road, Box 1424 Mattituck, NY 11952 P,Co March 7, 1984 Re: Appeal No. 3223 - Thomas and Barbara Mercier Location of Property: C.R. 48, Mattituck Zoning District: "A" Residential and Agricultural Dear Gail: In reviewing the subject application, the board at its Regular Meeting held last Friday has requested that a plan be drawn to scale and submitted as early as possible for review outlining: (a) the proposed egress and ingress areas and aisles for maneuvering, (b) screening of the parking areas from residential areas, (c) entrances to building, handicap ramps, railings, (d) existing and proposed paved areas, (e) fences if any, (f) curb cuts. It has been brought to our attention that Section 239(K) of the General Municipal Law requires an application to the County Transportation Department for their review concerning changes of activities within their jurisdiction. If you are able to file this plan by March 16, 1984, this matter may be advertised for publication for a public hearing to be held at our next Regular Meeting (tentatively scheduled for March 29th). Please keep us advised regarding developments. Yours very truly, GERARD P. GOEHRINGER CHAIRMAN By Linda Kowalski cc: Building Department b?AF~ ?0 ACCOMFA~IY AP~ICAT'IOd -t F~ge 3 Legal Notice of Hearings Regular Meeting of April 5, 1984 Southold Town Board of Appeals NOTICE TO NEWSPAPERS: Please publish once, to wit: Thursday, March 29, 1984 and forward 11 affidavits of publication to: L. Kowa'lski, Board of Appeals, Main Road, Southold, NY 11971, before April 3, 1984. Copies have been forwarded to the following 3/26/84: Suffolk Times (personal delivery) L.I. Traveler-Watchman, Inc. (personal delivery) Posted on Town Clerk Bulletin Board Dr. and Mrs. James A. Christie Mr. Robert A. Campbell Mrs. Linda Miller Faulkner Mrs. Carol Plock Mr. and Mrs. George Wieser Mr. Robert Brown Mr. Berit Lalli Dr. and Mrs. Thomas R. Mercier Wickham, Wickham & Bressler, P.C. Mr. and Mrs. Peter Lenz Wickham, Wickham & Bressler, P.C. Mr. Howard W. Young Cross Sound Ferry Services, Inc. Attn: R. McMurray Mrs. Mary Grigonis Mr. Charles Grigonis Supervisor and Town Board Planning Board Individual ZBA files Building Department JUDITH T. TERRY TOWN Ct.}m}~ REGIS'FRAR O1' VITAL S I .',1 IS1'1£'S OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD February 24, 1984 Town Hall, 53095 Main Road P.O. Box 728 Southold, New York 11971 TELEPHONE (516) 765-1801 To: Southold Town Zoning Board of Appeals From: Judith T. Terry, Southold Town Clerk Transmitted herewith is Zoning Appeal No. 3223 application of Thomas It. & Barbara D. Mercier for a variance. Also included is notification to adjacent property owners; Short Environmental Assessment Form; Letter relative to N.Y.S. Tidal Wetlands Land-Use; Notice of Disapproval £rom the Building Department; and survey. ud~th T. Terry Southold Town Clerk TOWN OF SOUTHOLD, NEW YORK APPEAL FROM DECISION OF BUILDING iNSPECTOR TO THE ZONING BOARD OF APPEALS, TOWN OF SOUTHOLD, N. Y. Thomas R. Mercier, M.D. & APPEAL NO. ~ DATE ..F...e..b..r..~..a...r.y.....2,4..,. 1984 ~[, (We) B. arhar.a..D,../~arc.ier. ...................... of ...~.~..w.....~.~..f.f.Q%k..AW~u.¢. ............................. Nome of Appello,nt Street and Number Mattituck New York HEREBY APPEAL TO Municipality State THE ZONING BOARD OF APPEALS FROM THE DECISION OF THE BUILDING INSPECTOR ON APPLICATION DATED: 2/17/84 FOR: permission to change use of existing building WHEREBY THE BUILDING INSPECTOR DENIED TO Thomas R. Mercier, M.D. & .... B.~.ba~a..D.....Me~.cimr .................................. Name of Applicant for permit of .... .N...e.~...S..~.~ g.o. Z_ .k... AWe. ,..,..... }ia ~.t i.¢uck .,...Now.. Xor. k .................................. Street and Number Municipality State (X)PERMIT TO USE ( ) PERMIT FOR OCCUPANCY ( ) PERMIT TO BUILD · · "A" RCsi~enti 1 1. LOCATION OF THE PROPERTY 'L°~ze'"La'"'&"Mzddle"R°ad','"Matt-ztuck..&'.~C~.z~u~tura~ Street and Hamlet Map of Clara W.R. p/o R.e...e.¥.e..,...M.a.p...~.O.......2..l..~...r.L.9.~...5. ....................... OWNER(S): .T.h.o.m.~P.l%,.~.J~arb~u;a.D,. Mercier lv~op No. Lot No. DATE PURCHASED: 10/]-4183 ............ 2 PROVISION (S) OF THE ZONING ORDINANCE APPEALED (Indicate the Article Section, Sub- section and Paragraph of the Zoning Ordinance by number. Do not quote the Ordinance.) Article III , Section 100-30A TYPE OF APPEAL Appeal is made herewith for A VARIANCE to the Zoning Ordinance or Zoning Map A VARIANCE due to lack of access (State of New York Town Law Chap. 62 Cons. Laws Art. 16 Sec. 280A Subsection 3 4. PREVIOUS APPEAL A previous appealz~(has not) been made with respect to this decision of the Building Inspector or with respect to this property. Such appecl was ( ) request for a special permit ( ) request for a variance and was made in Appeal No ................................. Dated ...................................................................... ( ) (X) ( ) REASON FOR APPEAL A Variance to Section 280A Subsection 3 A Varicnce to the Zoning Ordinance is requested for the reasonthat we would like to convert the existing single- family dwelling into professional offices for not more than two pro- fessionals. A copy of the survey and a copy of the zoning map for the area are enclosed. Form ZB1 (Continue on other side) REASON FOR APPEAL Continued 1. STRICT APPLICATION OF THE ORDINANCE would produce practicaldifficultiesorunneces- sary HARDSHIP becau~ the location of the property on a four-lane highway adjoining a public launching facility and business zoned property renders the property of insufficient value for residential purposes to obtain a reasonable return on investment. Although applicants re- cently purchased the property, they did so with the express intent of applying for permission to convert to professional offices, rather than to use the premises for residential purposes. The prior owner experienced difficulty in selling the premises as currently zoned, having had the property on the market for many months without a single purchaser except for one sale which fell through. 2. The hardship createdis UNIQUE and is notshared by all properties alike in the immediate vicinity ofthis proper~ and in this use district because this parcel is isolated between a four-lane highway, a business zone, and the entrance to a public launching facility. Although the other two houses next to it are in a similar position, they both have unobstructed water views of the Creek which enhance their value, whereas the views from these premises are obstructed. 3 The Variance would observe the spirit of the Ordinance and WOULD NOT CHANGE THE CHARACTER OF THE DISTRICT because the exterior appearance of the building would not change; only minor changes to the interior are required, and the nature of professional use is not incompatible with the existing residential uses and is less offensive than the B-1 uses permitted directly opposite Love Lane. Traffic will not be a problem, due to staggered office hours and adequate off-street parking for at least eight vehicles. Applicant will make every attempt to maintain the existing large trees on the lot and has planned his parking accordingly. STATE OF NEW YORK COUNTY OF SUFFOLK SS Thomas ~. Mercier . ............. ................. Siflnoture B_arb.~ra D. Merczer Sworn to this ........ 2Arb, ............................ day of...Fehr~ar.y., .................. Notary Public C, No. 4~88B~l - ~uffolk County ,-.,~. BOARD OF APPEALS, TOWN OF SOUTHOLD In the Matter oT' the Petition of THOMAS R. & BARBARA D. MERCIER to the Board of Appeals of the Town of Southold TO: Mattituck Park District Mrs. Gladys G. Nine Mr. & Mrs. Louis A. Giuliano Mrs. Mary Gorman Mr. & Mrs. Peter E. Orlowski NOTICE TO ADJACENT PROPERTY OWNER YOU ARE HEREBY GIVEN NOTICE: 1. That it is the intention of the undersigned to petition the Board of Appeals of the Town of Southold to request a (Variance 2. That the property which is the subject of the Petition is located adiacent to your property and is des- cribed as follows: Suffolk CounL~r Tax Map #1000-140-1-21. Bounded on the North by a Private Road; on tim West by Giuliano; on the South by Middle Road; and on the EaSt by Lo~e 3. That the property which is the subject of such Petition is located in the following zoning district: "A" Residential and Agricultural. 4. That by such Petition, the undersigned will request the following relief: Permission to "A" zoned premises for B-Light zoned use: Professional Offices 5. That the provisions of the Southold Town Zoning Code applicable to the relief sought by the under- signed are ~rticle III Section 100-30A 6. That within five days from the date hereof, a written Petition requesting the relief specified above will be filed in the Southold Town Clerk's Office at Main Road. Southold, New York and you may then and there examine the same during regular office hours. (5].6) 7~5-~809. Dated: February 24. 1984 7. That before the relief sought may be granted, a public hearing must be held on the matter by the Board of Appeals; that a notice of such hearing must be published at least five days prior to the date of such hearing in the Suffolk Times and in the Long Island Traveler-Mattituck Watchman, newspapers published in the Town of Southold and designated for the publication of such notices; that you or your representative have the ~ar~ara u. m~rcler etltlone8 Post Office Address Nmw R~FFnl 1~ Mattituck, NY 11952 NAME PROOF OF MAILING OF NOTICF ATTACH CERTIFIED MAIL RECEIPTS ADDRESS Mattituck Park District Mrs. Gladys G. Nine Mr. & Mrs. Louis A. Giuliano Mrs. Mary Gorman Mr. & Mrs. Peter Orlowski Mattituck New York 11952 Love Lane Mattituck, NY 11952 176 Elm Ave. Mt. Vernon, NY 10550 Main Road Mattituck, NY 11952 Love Lane Mattituck, NY 11952 P 529 759 928 RECEIPT FOR CERTIFIED MAIL NO INSURANCE COVERAGE PROVIDED NOT FOR INTERNATIONAL MAiL (See Reverse) reel and N . Postage Certified Fee Special Delivery Fee Restricted Delivery Fee Re urn Receipt Showing to whom and Date Delivered ~ Return receipt showing to whom, e ~ Date, and Address of Delivery i TOTAL P°st age a n~d Fee'~Q'~I$ o i ~.<.:[ ~?~ / .... ing at 309 ~a~i~g ~l~d. ~4, .... ~ 11901 , being duly sworn, depos~ and says that on the 24th day ~eb:ua:' ,1 9 8 ~ , deponent mailed a true copy of the Notice set forth on the re- verse side hereof, directed to each of the above-named persons at the addresses set opposite 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 ~$:~c~ ; that said Notices were mailed to each of said persons by (certified ~ail. Sworn to before meLhis 24th day of ~Februar~i , ~84 Notary Public ,JOAN NINDERMANN NO'rAR¥ PUBLIC, State of New York No. B2'8905850-Suffolk County Commission ExlMres March 30, ! 92~ ELLEN M. URBANSKI JUDITH T. TERRY TOWN CLERK REGISTRAROI VITAL S1 \IISIlCS 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 March 1, 1984 Abigail A. Wickham, Attorney Main Road, P. O. Box 1424 Mattituck, New York 11952 Dear Gall: The Town 12oard reviewed your request for the refund of the $100.00 filing fee in, connection aith the petition of Dr. and Mrs. Mercier for a change of zone. It is the Board's decision that the fee should not be refunded. I might add that, although this petition did not appear to progress very far, the following took place: Copies and distribution to Town Board members of the entire petition (7). Town Board declared themselves lead agency by resolution of 11/29/83. Notice of lead agency and petitions trans- mitted to N.Y.S.-D.E.C. & Building Department (3). Request for recommendation from Southold Town Planning Board, with transmittal of entire petition. Very truly yours, Judith T. Terry $outkold Town Clerk WICKHANt, WICKHAM & BRESSLER, ~,.c. RECEIVED MATTITUCN LONG ISLAND February 15, 1984 Southold Town Board Town Hall Main Road Southold, N.Y. 11971 Re: Mercier - Rezoning Application Gentlemen: Dr. and Mrs. Mercier have decided to withdraw their application for a change of zone. They intend,as an alternative, to proceed with a use variance. We would appreciate the fee in the amount of $100.00. return of the application Sincerely yours, 'Abig?~il A. Wickham AAW:ab cc: Southold Town Planning Board HENRY E. RAYNOR, Jr., Chairman JAMES WALL BENNETT ORLOWSKI, Jn GEORGE RITCHIE LATHAM, Jr. WILLIAM F. MULLEN, Jr. Southold, N.Y. 11971 February 17, 1984 TELEPHONE 765- 1938 Agigail Wickham Wickham, Wickham, and Bressler P.O. Box 1424 Mattituck, NY 11952 RE: Mercier Dear Ms. Wickham: The following action was taken by the $outhold Town Planning Board at the meeting February 13, 1984. RESOLVED that the Southold Town Planning Board recommends that Dr. and Mrs. Mercier proceed with a use variance rather than a change of zone. If you have any questions,please contact this office. Very truly yours_ HENRY E. RAYNORt JR., CHAIRMAN SOUTHOLD TOWN PLANNING BOARD By Diane M. Schultze Town Clerk CD ,SHORT ENVIRON74XNTAL ASSESSMENT FORUM INSTRUCTIONS: (a) In order to answer the questions in this short gAF is is assumed that the preparer will use currently available lnfo~ation concerning the project and the likely impacts of the action· It is not expected that additional studies! research or other investigations will be undertaken.' (b) If any question has been answered Yes the project may be significant and a completed Environmental Assessment Form is necessa~t. (c) If all questions have been answered No it is likely that this project is no__~t significant. (d) Enviror_mental Assessment 1. Wif[1 project result in a large physical cbmnge to the project site or physically alter more than 10 acres of land? . . . .... · · Yes~ No 2. Will there be a major change to any unique or / /No unusual land form found on the site? . Yes 3. Will project alter or have a large effect on an existing body of water? . . . . . . Yes~' No &. Will project have a potentially large impac~ on / gro,~ndwater quality? · · · . · · · . · Yes No 5. Will project significantly effect drainage flow on adjacent sites? · · · · · · · · Yes / No 6. Will project affect any threatened or endangered / plant or ani~ml species? . · · · · · · · Yes ~/ No 7. Will project result in a major adverse effect on air quality? · · . . · , · · · ,, Yes ~/ No 8. Will project have a ~mJor effect on visual char- acter of the community or scenic views or vistas known to be important to the community? · · · Yes No 9. Will project adversely impact any site or struct- ure of historic, pre-historic, or paleontological importance or any site designated as a critical / environmental area by a local agency? · · · Yesj__ No 10. Will project have a major effect on existing or ~./ future recreational opportunities? · · · Yes No 11. Will project result in major traffic problems or cause a major effect to existing transportation 12. Will project regularly cause Objectionable odors, noise, glare, vibration, or electrical disturb- ance as a result of the project's operation? . Yes v/ No 13. Will project have any impact on public health or safety? ......... . . . . Yes L/ No l&. Will project ~ffect %he existing community by directly causing a ~rcwth in oermanent popula- tion of more uhan 5 percen% o~er a one-year period o~r have a ma~or negative effect on the character of the com. munity or neighborhood?. Yes ~/ No 15. Is there publi~Fon~cvers7 concerning the project? Yes ,// No ?REPlica's SZC~TS~Z: ~y./.~/~ ?ITLE, Atty for Applicant bi ' · . Wi~kha ~ REPRESENTING: T~o~i~.~erczer,~.D.& DATE: Febrgary 24~ 1984 ~/~/7~ Barbara D. Mercier QUESTIONNAIRE TO BE COMPLETED AND FILED WITH APPLICATION TO THE Z.B.A. The New York State Tidal Wetlands and Use Regulations, 6 NYCRR, Part 661, requires an application to the N.Y.S. Department of Environmental Conservation, Environmental Analysis Unit, Building 40, S.U.N.Y., Stony Brook, NY 11794, (tel. 516-751-7900), if you have checked Box #1 and/or Box #6 below. Please either call their office or personally visit them at their Stony Brook office for instructions and application forms. Once you have received written notification of approval please provide our office with a copy (with the conditions) as early as possible in order that we may continue processing your Z.B.A. application. [ ] I. [ ] 2. [ ] 3. [2<1 4. [ ] $. [ ] 6. [ ] 7. Waterfront without bulkheading Waterfront with bulkheading in good condition [ ] the full length of the property [ ] at least 100' in length Not located within 300' of waterfront or wetlands area May be located within 300' of waterfront or wetlands area; however, the following structure separates my property f_rom this environmental a rea: [ ] 50' existing road IX] existing structures- [ ] bluff area more than 10' in elevation above mean sea level This proposed addition/expansion of an existing building will be more than 75' from the landward edge of tidal wetlands/waterfront areas. This proposed addition/expansion of an existing building will NOT be more than 75' from the landward edge of tidal wetlands/waterfront area. Please be aware that any and all subdivisions and new dwellings will also require an application to the N.Y.S. Department of Environmental Conservation for their review and approval. If you are able to provide them with recent photographs of the project and wetland areas, it would help expedite the processing of your applica- tion. This questionnaire is made to explain the requirements of this State Law and to prevent any unnecessary delays in processing your application(s). 10/831k WICKHAM, WICKHAM & BRESSLER, P.C. MAIN ROAO~ P.O, BOX 1424 MATTITUCK LONG ISLAND March 2, 1984 Southold Town Board of Appeals Town Hall Main Road Southold, NY 11971 Re: Application of Thomas R. and Barbara D. Mercier for Use Variance Gentlemen: Enclosed is a copy of the layout for the proposed professional office, together with a copy of the map showing the proposed parking area. Also enclosed is a copy of a letter from Charles E. Kuebler, Executive Vice President of Eastern Long Island Hospital in support of this application. Very truly yours, Abi/gail A. Wickham /emu encls. WICKHAM, WICKHAM & BRESSLER, F'.C. 51{5 -298-8353 February 24, 1984 Southold Town Board of Appeals Town Hall Main Road Southold, Re: NY 11971 Application for Use Variance of Thomas R. and Barbara D. Mercier Gentlemen: Enclosed are the application; 1. 2. If any further information is us as soon as possible. /emu encls. following in connection with the above Application, in triplicate; Notice of Disapproval from the Building Inspector; 3. Short Environmental Assessment Form; 4. Questionnaire; 5. Original Notice to Adjoining Owners with Affidavit of Service thereon; 6. Five prints of the survey; 7. Check in the sum of $50.00, representing the application fee. required, please contact Very truly yours, Abigail A. Wickham ,I Ii WAITING ROOM II 'j EX'AM ROOM ~]. BATH RECEPTION PROPOSAL I EXAM ROOM ~'2 EXAM FOR PROFES~ION/~L OFFIOE THOM/~g R. MER¢IER, N.-D. Memorandum from... · Southold Town Board of Appeals TOWN HALL, SOUTHOLD, N,Y, 11971 765-1809 Date: 5/9/84 To: R.W. Tasker, Esq. From: Z.B.A. Office Dear Bob: Due to the limited and restricted parking proposed on the Mercier parcel, the board is trying to determine whether the applicant has the legal right to improve and use same (since it is now unimproved) for the doctor's offices. Gail WickhamIs reply is attached for your opinion. Thank you again for your assistance. Jerry Goehringer Southold Town Board Appeals March 2, 1~ Regular Meetin§ ~/f~PEAL NO.: 3223 OJECT NAME: THOMAS R. AND BARBARA D. MERCIER This notice is issued Dur~?~lant to Part 6L7 (and Local Law of the implementing regulations pertaini~g te Arti. cle ~ o~ the State Environmental Quality Review Act of thc EnvironmeLtal Conservation This board derer~lines the within p~c~j©ct not to have a signi!icant adverse effect on the environment. Also, l~laa~: ~ -, lake notl...e- ~' , that this decla:ation should not be considered a determination made for any other department or agency which may also have an appli.catl~z~n pending for the same or similar project. use TYPE OF ACTION: [ ] Type II IX] Unlisted [ ] DESCRIPTION OF ACTION: To convert existing single-family dwelling into pr0fessiona] offices in this A-Residential Zoning District. LOCATION OF PROJECT: 5~own of Southo]d, C<)uzty of Suffolk, more particularly known as: ~§05 Middle Road, C.R. 48, MattJtuck; 1000-]4]-]-2]. REASON(S) SUPPORTING THIS DETEPS~iNATION: (!) An Environmental Assessment in the ~lhort Form has been sub- ~nitted which indicate: that no significant a~'lverse ~ffects to the environment are likely to occur should th~s i,~oject be implemented ms planned. (2) Building ~s ex~st~ng and ~s landward 0f 0thou D~]ncJpa] buildings on adjoining landsl APPEAL NO.: 3l 76 pROJECT NA_~IE: CAROL PLOCK 5'his notice is ir;seed pursuan] to Part 617 (_~.:ld Local Law ~44-4) of the implementinq regu[.ations portainir~g to Article 8 of the State Envizonmental Quality Review Act of the Environmental Conservation Law. This board detect, ires the within project not to have a significant adverse effect on the environment. Also, please take 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 th~] same or similar project[ TYPE OF ACTION: [X] Type II [ ] Unlisted DESCRIPTION OF AC?ION: Re-separate two ]0ts which merged. ] have become LOCATION OF PROJECT: Town of Southold, County of Suffolk, more particularly known as: R-0-W off north side of Bayview Avenue; two parcels identified as CTM ~1000-79-5-]7 and 2l. REASON(S) SUPPORTING THIS DETErmINATION: (1) An Environmental Assessment in the Short Form has been sub- mitted which indicates that no significant adverse effects to the environment are likely to occur should this project be imp!omen[cd as planned. (2) Subject premises is not located in a critical environmental area. to