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HomeMy WebLinkAboutZBA-01/18/2018 Hearing TOWN OF SOUTHOLD ZONING BOARD OF APPEALS COUNTY OF SUFFOLK: STATE OF NEW YORK --------------------------------------------------------------------------------------- TOWN OF SOUTHOLD ZONING BOARD OF APPEALS --------------------------------------------------------------------------------------- Southold Town Hall Southold, New York January 18, 2018 9:49 A.M. Board Members Present: LESLIE KANES WEISMAN - Chairperson/Member (Absent) PATRICIA ACAMPORA—Member ERIC DANTES—Member (Acting Chairperson) GERARD GOEHRINGER—Member (Absent) NICHOLAS PLANAMENTO— Member KIM FUENTES— Board Assistant WILLIAM DUFFY—Town Attorney January 18, 2018 Regular Meeting INDEX OF HEARINGS Hearing Page Bernadette Strachan, The Estate of Stuart Strachan and Kenneth Strachan,Jr. # 7078 3 - 16 Harry and Elizabeth DiSimone #7121 16 - 25 Kathryn Farrand # 7122 25 - 30 Abidin Kandic#7116 30- 34 David Hermer and Silvia Campo # 7117 34- 38 Peter and Elaine Psyllos# 7124 38 -45 860 Bayview Drive, LLC# 7125 46 - 52 2 January 18, 2018 Regular Meeting HEARING # 7078 — BERNADETTE STRACHAN, THE ESTATE OF STUART STRACHAN and KENNETH STRACHAN JR. #7078 MEMBER DANTES : The first hearing on the schedule is Bernadette Strachan, The Estate of Stuart Strachan and Kenneth Strachan #7078. The Notice of Disapproval has been read in to the record previously. Who is here to represent the applicant? PAT MOORE : Good morning, Patricia Moore on behalf of the applicant as well as the contract vendee. A lot has already been said on the record. I don't want to rehash all the issues and all of the testimony that's been previously submitted. I do want to confirm some documents that are in your file and are more recent documents. The first one is a letter opinion letter an environmental review by Suffolk Environmental Consulting. I submitted that, that letter is December 8, 2017 and the first page was a confirmation of the edge of wetlands since he had delineated the wetlands for a Health Department application in 2012 so we wanted to be sure that that was still consistent today and it was. In addition there is a second letter also dated December 8th where it provides the background environmental setting, ecological importance and conclusions with respect to the environmental issues applicable to this property. So that was submitted to this Board and you should have this in your file for your review and decision making. Also we had submitted in September I believe that that was at the end of the previous hearing back in September 27th which was a memo from us from me as the attorney with respect to the criteria of area variances and confirming that the D.E.C. acquisition was the condemnation that was the same process as a standard condemnation even though there was negotiation occurring. There also since the date of our last meeting there is a letter from Steve Angel which provides some background information with regard to what occurred during the condemnation proceedings of the acquisition of the Orient properties. He provides personal testimony as well as professional testimony with regard to what was occurring and the takings, the condemnations at the time that the Strachan property was also going through the similar proceedings so we provided that to you as well. Finally I want to be sure that you have in your file, even though it will be subject to F.O.I.L., the contract of sale on this property. This contract was executed December 23, 2016 and has been extended, and the purchase price of this buildable parcel is $1,025,000. That is a significant price and it is the fair market value of the property a contract between a willing buyer and a willing seller arm's length transaction. So I want this Board to be aware of the value the fair market value of this property so I'm going to submit that now at this point for the Board for your records. I only have one with respect just providing it as a background. MEMBER DANTES : Did you get a copy of what we foiled. from the D.E.C. based on their records of the original transaction? January 18, 2018.Regular Meeting PAT MOORE : I don't think I got anything. MEMBER DANTES : Do you have it Martin? We F.O.I.L.E.D. the D.E.C. records when they sold the wetlands to the D.E.C. PAT MOORE : But I was not provided that from the Zoning Board. If I could get a copy I'd appreciate it. I'm here to really address any questions you might have I'll defer to the Strachan's attorney as well. I think it's important that the Board hear from the sellers the Strachan family and so I will sit down and let the attorney present his file his papers thank you. MARTIN FINNEGAN : Good morning everyone, Martin Finnegan, Twomey, Latham, Shea, Kelley, Dubin and Quartararo. I am here on behalf of the Strachan family, who have owned the subject property for over a hundred years. I'd like to submit a letter to the Board with some exhibits that I'm going to go through briefly and try to I think correct some misunderstandings in the record and it's our position honestly that we don't even need to be here. So if I may, I think the proceeding that is before you stem from a determination by the Building Department that a subdivision was going to be required to legalize what is now lot 9.4 on the tax map. Somehow that was created by an illegal subdivision by the Strachan's and I think there's this also a misunderstanding that there was a sale like a setoff and a sale of a portion of the property back in 1990. That is not the case. If you can look at Exhibit A and the letter that I submitted to you, the lot in question, lot 9.4 was originally part of lot 9.2 which was a lot created by our Planning Board in 1987. So as of that point, the land in question was part of a recognized lot. It was a recognized lot part of a subdivision map filed approved by the Planning Board. So under Section 280-9 of the code it is a recognized lot. What happened subsequently was that the D.E.C. as part of a wetlands preservation program that occurred in the late eighties went ahead and condemned about 450 acres of land in Orient along the harbor, along the coast there and what I have submitted to you is the map and description of the real property that were filed to effectuate the taking by the D.E.C. This entire process was accomplished pursuant to the eminent domain procedure law. The D.E.C. is not subject, was not required to come back before the town to seek a further subdivision of the lot to do what they did. If the D.E.C. or any governmental entity comes down and decides to take a portion of someone's front lawn to widen a road they're not required to get approval from the town to do that. They file a map and they take the land and it does not mean that the remaining portion of that property is not buildable or becomes unrecognized. What happened here is quite simple and the documentation here bears out that there was a taking. Under the procedural rules under the EDPL (Eminent Domain Procedure Law) there can be a negotiation as to value, okay, as to compensation. The government cannot take land without paying for it. So there may have been some back and forth about what it cost then and what was paid but it was not a sale, this was not a voluntary transfer. There was a filing of a map by the state when this property and many; January 18, 2018 Regular Meeting many others were taken at the same time. The result is what you see and I have an Exhibit C is the way things look today. This oddly shaped portion of the (inaudible away from microphone) is identified as owned by the state and the remaining portion of what was originally lot 1 on the original 1987 approved subdivision remain. So what you have is a pre-existing non-conforming lot in the R-200 zone. It is a buildable lot and under our code we recognize that these situations occur and there is a bulk schedule in Section 280-124 (3) of the code which sets forth the setbacks to build on that lot. So, there is no need for a variance. If the applicant seeks to build a house that exceeds the setbacks in the code I guess they'd have to come back before you and get an area variance but there is no need for you to do anything to consider any of the 267 criteria with respect to legalizing this lot because it is already a legally existing lot. MEMBER DANTES : So you're asking us to reject the Notice of Disapproval or overturn it? MARTIN FINNEGAN : Yes, I am. By what other means you and Bill decide to do that you can do that. I had suggested that you consider this an interpretation but that's essentially the end game here is that you know there has been a lot of back and forth about the character of the neighborhood and whatever and that's all irrelevant at this point. I think this information confirms that there was a taking and that the remaining acreage it's about two acres, lot 9.4 is a buildable lot and I would ask this Board to recognize that fact and render a determination accordingly. MEMBER DANTES : Question, you said in the Exhibit B it says pursuant to Section 3-0305 of the environmental conservation law and eminent domain procedure, is that the statute that lays out that the D.E.C. taking over supersedes the town code? MARTIN FINNEGAN : Yes, and you could see, if you look at the recorded copy it clearly references lot 9.2 which was the original lot 1 under 87 which was when it was split out after the taking became 9.4 and 9.5. MEMBER DANTES : Nick do you have any questions? MEMBER PLANAMENTO : Not at this time. MEMBER DANTES : Pat? MEMBER ACAMPORA : Not at this time. MEMBER DANTES : Bill do you have anything to add? T.A. DUFFY : No. January 18, 2018.,Regular Meeting MEMBER DANTES : No questions from the Board at this time, I'll open up the hearing to public comments. ELIZABETH HOLTZMAN : Good morning members of the Board, my name is Elizabeth Holtzman. I live across the street from the subject property. I'd like to make a request here and now is that I be given an opportunity to respond to what has just been said. This is the first I'm hearing of this. I raised the issue in earlier communication with the Board that the representation made in the application was inaccurate and that there was a condemnation proceeding. I said that in October that has never been responded to until this day. It's completely unfair and inappropriate for me not to have a chance to respond but I am going to say this with respect to this. I have to research the law. I'm not a land use expert. I don't know off hand whether the representation that this is a buildable lot is in fact true. We have a zoning law that's in effect that says five acres. These people, this family he's admitted it before you has had this property for over a hundred years. They could have divided it in such a way as to avoid any violation of the five acre zoning. They did not do that. They chose to have lot 9.6 sold and they chose now to have this lot available for sale even though it's non-conforming. They say buildable I say non- conforming. We have a zoning law in effect, five acres. They say it doesn't matter what happens to the environment the fact of the matter is that there's no question that this undermines open space. I want to say as I said in my letter to the Board that was submitted on January 3rd that the application that was made was based on inaccurate, erroneous and misleading statements and I do not believe the Board can proceed with respect to an application that was made that is erroneous, false and untrue. The statements made with regard to this will have no impact on open space is patently untrue. The statement that .this will have no impact on water quality i,s patently untrue. The statement made in the application that this will not affect the surrounding neighborhood, is consistent with neighborhood is patently untrue. I've listed all the statements i that are made, that's untrue. I don't think the Board has a basis for acting now with regard to an application that's erroneous, untrue, and inaccurate even admitted here inaccurate they made the statements as based on a purchase which was not true. I don't see how you can reject the Notice of Disapproval. I think that the new papers should be submitted to understand what the basis is for this claim. This is an attorney for the not for the applicant so I would just basically say that we have a situation. By the way just one other point, we have three issues here. The applicant asks to legalize the acquisition by NYSDEC. This Board has no jurisdiction to legalize any acquisition by NYSDEC and to that extent the application is void and you have no jurisdiction over it. You have no jurisdiction to reject it. You have no jurisdiction to allow them to proceed. Number two, there's no question and when they talk about buildable the prior attorney the prior two attorneys, when they say buildable what they fail to tell you is that there are wetlands on lot 9.4 and the wetlands also despite the application statement encroach on the buildable area. There are wetlands within the buildable area. One of the things that the 6 January 18, 2018 Regular Meeting Zoning Board has and one of the responsibilities has is to uphold the policies of Southold Town. They're concerned about wetlands preservation; they're concerned about open space. For that reason this I don't understand how we can proceed just because they say buildable doesn't mean that we should build on it. Just because they say buildable doesn't mean we should jeopardize wetlands. Just because they say buildable doesn't mean we should jeopardize open space. This is a matter that's been they've had an opportunity since 1987 to correct or 1990 to correct and address this problem. They haven't done that until now. They want this Board to give them some kind of windfall here. That's inappropriate. The town has set forth a five acre zoning requirement. This is not in conformance with the five acre zoning requirement and so it should be rejected period. But if the Board is not going to reject it I want the opportunity to respond to these papers. It's not fair at the last minute to come in with new legal arguments that we haven't see even though this matter has been before the Board since September. They come in at the last minute five months later and say here you know you have no you should just approve this. So that's my request to you. Thank you. MEMBER DANTES : Do you have a copy of the papers? ELIZABETH HOLTZMAN : What? MEMBER DANTES : Do you have a copy of the papers that he just handed up? ELIZABETH HOLTZMAN : No they didn't even bother to give them to me now. MEMBER DANTES : Martin can you give Liz a copy of what you just gave us. ELIZABETH HOLTZMAN : I can't respond to them right now. MEMBER DANTES : I understand that I'm just getting you a copy. ELIZABETH HOLTZMAN : Thank you, I appreciate that and if there are any additional material such as the materials that were submitted the maps and so forth and the D.E.C. we would appreciate that too. MEMBER DANTES : I think you have to F.O.I.L. that from our office. ELIZABETH HOLTZMAN : I did ask I did send a letter to the secretary asking for all the materials that have been received since this matter since April 21St so I should have received anything additional that was submitted to the Board since April 21St T.A. DUFFY : You recently submitted that letter? We don't F.O.I.L. requests are not an ongoing request. You'd have to resubmit. ELIZABETH HOLTZMAN : I submitted it about three weeks ago something like that. January 18, 2018.Regular Meeting MEMBER DANTES : Maybe go in tomorrow when their office is open again and you can go through their file. ELIZABETH HOLTZMAN : Yes sir, thank you very much I'd be happy to do that but I but as I said I would really appreciate the opportunity to respond if you're going to agree with their request. MEMBER DANTES : Do you have anything new Pat because we I mean we've (inaudible) environmental argument back and forth the last meeting so we have a lot on file. Do you have anything new or is it more of the same. PAT MOORE : Yes, actually a response. ELIZABETH HOLTZMAN : Will the record be held open then for the additional submission in response to what's been made? MEMBER DANTES : I'm going to make a motion to hold it open but we haven't made a decision yet. PAT MOORE : I just want to very briefly to respond to Ms. Holtzman's arguments. The first one being that the time the subdivision the Strachan family had the opportunity to subdivide under the five acre that was not the zoning at the time. At the time the subdivision was applied for and obtained and approved the zoning was two acres so there is just a misunderstanding there. The second issue with respect to Martin's arguments he clarified and expanded on the very first paragraph of our memo from September 27, 2017 1 refer you back to that memo that before the Board reopened this hearing which very clearly said that the D.E.C. condemned this property that it was a condemnation that the State of New York was under no obligation to obtain Southold Town Planning Board approval of the purchase nor was it obligated to obtain approval of a lot line change when it purchased less than the entire property. The state action was exempt from local review. That was in our first memo in September. You can choose to ask for additional information, reopen the hearing but that was set forth in our argument from day one. I'm glad that the Strachan family had Martin come in and verify get a second opinion that that is in fact the case. That is the law. So we agree with the Strachan family. We don't want to be here. The contract you will see that my client has had to pay for this proceeding and it's very frustrating. We are buying a million dollar property. You don't want to walk in with a building permit application and be told oh this lot should have gotten approval. That's a million dollar risk that no purchaser is willing to do so whatever your determination is that is the binding interpretation that is the binding decision that gives us the comfort and the support to the Building Department to be able to issue a building permit. You are the body that has the authority to interpret and thirdly the environmental review was provided for you by an expert. January 18, 2018 Regular Meeting Ms. Holtzman's testimony she is not an environmental expert and we will defer to Suffolk Environmental with respect to the conditions of the property. That's all it's very brief thank you. ELIZABETH HOLTZMAN : Excuse me I'm just going to quote from the area variance application where it says it's not paginated on my document. I apologize for that but I believe it's where a response to an undesirable change will not be produced in the character of the neighborhood. If you skip down to the second paragraph under that in 1990 NYS D.E.C. purchased from Strachan the non-buildable part of lot 1 skip down two lines this was_a quote purchase not a condemnation proceeding. What I'm telling you is that this is a document submitted by the applicant. It's filled with error after error and misrepresentation. I'm not saying intentional but some of them seem to be completely oblivious to the facts. I don't believe the Board can act on that kind of an application. And with regard to environmental, this Suffolk Environmental group is not a government agency it's a private consulting firm. It was paid for we don't know we haven't brought a contrary expert but all their testifying has nothing to do with the larger questions that appear in the application which are, what will the impact be on open space. They don't address that the Suffolk Environmental. We know what the impact will be on the open space. It doesn't address the issue of water quality and the eco system. In fact the town's own people say that there will be an adverse impact on water pollution. We can minimize that or mitigate it but you can't eliminate it so that's going to happen. So there's no question that there's going to be an adverse environmental impact from this and it seems to me that that's very clear regardless what Suffolk County consultants said. I'm not testifying as an expert I'm just testifying to what one person can see with their own eyes and what the policy was of Southold town with;regard to the importance the five acre zoning underlines;the importance of open space and scenic views and environmental enhancement and we're not getting that here with this construction. And the fact that it's a million dollar property just reinforces what I said which is they want this Board to give them a windfall when they could have avoided it. I didn't say that they could have that the subdivision that they could have I didn't say what was ascribed to me but I think it's critical 'to point out that they now acknowledge never in their papers they now acknowledge that there was a two acre zoning requirement in 1987 so this was not a buildable lot. It never was a buildable lot. That's the critical thing and they keep saying it but that doesn't make it so. There never was a conforming lot, they couldn't have built on it in 1987, they couldn't have built on it in 1990 maybe that's the reason that NYS didn't take it because they knew it couldn't be developed and that's the reason they should not be able to build on it today regardless of whether they get ten million dollars or a hundred million dollars you cannot restore an, environment that's been destroyed a view that's been destroyed which is what this town tried to preserve with this five acre zone. Thank you very much I appreciate the courtesy you've shown me. MEMBER DANTES : Any other comments from the Board at this time? January 18, 2018 Regular Meeting MARTIN FINNEGAN : The very reason that I am here is to correct the record I think I said that at the outset. I think that,you know Pat is not running from the fact that there may have been;a misunderstanding when the original application was filed. We've corrected that for the record. This lot as the Planning Board have recognized in their comments to this Board was constrained with wetlands when it was created in 1987. The part that was taken by the -D.E.C. is the wetlands part'. There may be some residual wetlands in the remaining two acre piece but this is a buildable lot. The fact that there was an up-zoning does not deprive the Strachan's of their property right. It's not a windfall to exercise your right to sell a legally recognized lot. That's their right. So, this is not up-zoning whatever doesn't take away property right because there's an up-zoning and because there's a legislative determination that we want to preserve this. They have a right to build a house. The Planning Board says in their comments, this was intended to be a residential lot. There are not additional impacts stemming from this. It's already been decided by the town. So I would renew my request that you render a determination that this is a buildable lot and that the Notice of Disapproval was issued in error'. T.A. DUFFY : Martin just to clarify your arguments made for the Board and for Ms. Holtzman, it would be fair to say instead of saying buildable you just really arguing that it's a recognized lot. MARTIN FINNEGAN : A recognized lot, yes. T.A. DUFFY : Whether it's buildable or not is not really for this Board necessarily because you want us to overturn the decision of the Notice of Disapproval that said that it's two unrecognized lots and therefore we had to proceed with a subdivision in that the lots are substandard so they'd need a variance to get a subdivision. You're essentially saying because of the taking you're saying the property was subdivided at one point it was recognized by the town, there was a taking therefore the applicant doesn't need to subdivide and remove that part that was already taken by the state. MARTIN FINNEGAN : Yea, whatever remains is still a recognized lot under 289. T.A. DUFFY : I don't know if that helps clarify, but instead I don't ELIZABETH HOLTZMAN : It doesn't help clarify. In fact here we have mirk all over again which is there may be wetlands on the property. The fact of the matter is there are wetlands on the property and their own map shows that there are wetlands on the property. I couldn't tell from the maps whether there's a stream on the property but there are wetlands on the property and wetlands within quote unquote buildable'area so what are we talking about here. There's obfuscation still going on. I don't know enough about the law at this point to say that this Board has the jurisdiction to act. I don't think the Board has jurisdiction because the application itself is replete with error from the error with regard to the purchase issue okay that's just the most 9..® January 18, 2018 Regular Meeting minor part of the errors and the fact of the matter is this was a non-conforming lot in 1987, in 1990 the fact that NYS took lot 9.5 does not make lot 9.4 available for construction period. That seems to me to be clear. If you had a two acre zoning this was 1.9 acres and there's nothing you can do to change those numbers. T.A. DUFFY : You can address I believe the Board there's going to be a motion to give you time to respond to what's been said today and obviously you can put whatever you want to in it and I think they've heard plenty of testimony about the wetlands and that, I was trying to narrow what he's brought up today so you can focus on what's been addressed today. ELIZABETH HOLTZMAN : Right, but what he addressed today was also to repeat errors and one of the obfuscations to this Board has been a refusal to acknowledge that there are wetlands on this property. T.A. DUFFY : The Board has not refused to do anything. We don't do anything till the Board renders a determination and that's at the close of everything so the Board hasn't refused ELIZABETH HOLTZMAN : No I didn't say the Board. I'm sorry if I said that I misspoke. No, no, no I'm talking about the application itself has no, no, no, please forgive me if I said. T.A. DUFFY : I did hear it. I thought that's what you said. ELIZABETH HOLTZMAN : I apologize no, no, no I'm not saying anything about the Board you haven't taken any action so how could I be critical of that no not at all I was just saying that part of the problem has been a failure to disclose accurately what this environmental situation is on this property and one of the issues with regard to this property is that NYS did not take all the wetlands when it took 9.5. There are wetlands on 9.4 that's the point I'm trying to make been trying to make in addition to the other environmental issues. I appreciate your effort to try to clarify it. T.A. DUFFY : I just don't think that factors in to the argument that Martin the whole as far as I'm concerned whether it's recognized or not it could be all wetlands and they can go to Trustees or the Building Department and be told that they can't build anything on the property at some point. That doesn't factor in to whether it's ever been a recognized lot. So essentially ELIZABETH HOLTZMAN : So if T.A. DUFFY : Let me finish please. ELIZABETH HOLTZMAN : Can I ask you one question then sorry just for my own clarification, if you find that this is a recognized lot does that then allow them to build on it or must they come back and then get a variance? 13. January 18, 2018.Regular Meeting T.A. DUFFY : I think they'd have to apply for a building permit at that point. If the lot is recognized they apply for a building permit and then the Building Department would have to decide whether a variance is needed, whether if it's subject to review of the Trustees and if it's subject to review of the Trustees they'd have to go before the Trustees and get that Trustees permit. That's what I'm trying to say but the argument ELIZABETH HOLTZMAN : So come back here again it could be? T.A. DUFFY : Possibly yes. They're challenging a Notice of Disapproval ultimately with regard to inconsistencies or incorrect statements in the application, ultimately they did appeal a decision of the Building Department and that's what this Board has to decide ultimately whether that was a right decision. We've heard a new argument now that no subdivision is required and the Building Department should determine that no subdivision was required that's it's a recognized lot already and that they don't need to subdivide off the part that was taken by the State and so I'm just suggesting if you want to clarify that should be the argument you're addressing because that what I hear the argument coming ELIZABETH HOLTZMAN : But didn't the Building Department also find that they need a variance and that they don't meet the requirements of the zoning and don't isn't that what the Building Department T.A. DUFFY : He would need a variance but it would proceed with the subdivision. They're saying because it's under the current ELIZABETH HOLTZMAN : They didn't say that didn't meet the area it didn't meet the zoning requirement? Didn't they say that the Building Department? T.A. DUFFY : The current zoning, yes. ELIZABETH HOLTZMAN : So in essence you would have to decide that they do meet the zone. If you approve if you disapprove the Building Department ruling you're in essence deciding that they don't need a variance to build on this property. ' T.A. DUFFY : No, it's not to build, it's whether the lot is recognized. If the lot is already recognized they don't need a subdivision, that's what the argument is. ELIZABETH HOLTZMAN : That's what the argument is but the application is for a zoning variance so what are you going to do about that? T.A. DUFFY : Right, (inaudible) the size of the lot. ELIZABETH HOLTZMAN : Because of the size of the lot. ILZ January 18, 2018 Regular Meeting T.A. DUFFY : That doesn't mean it's buildable. MEMBER DANTES : Mr. Finnegan is amending the application, that's what he did here today and he is permitted to do that. ELIZABETH HOLTZMAN : Okay he's permitted to do that okay but I'm going to get I hope time to respond. MEMBER DANTES : There's two arguments that they're using. One is, is it a recognized lot and the second was do they meet the area standards. If we decide that it's a recognized lot then we won't go to the second part of the application about the area variance standards. ELIZBETH HOLTZMAN : Okay then they have to meet that in a different proceeding. MEMBER DANTES : No, then this is our deliberation. If we decide that it's not a recognized lot then we'll go to the area variance standards and decide whether they meet the area variance standards to go to Planning. ELIZABETH HOLTZMAN : But if it is a recognized lot the still question about whether they need to MEMBER DANTES : Well then they have to do architectural plans, they have to go back to the Building Department with an application. The Building Department will decide whether they need Trustees approval or our approval and then they'll have to go to the Department of Health as well when they do their building application. They're not doing a building application here today. ELIZABETH HOLTZMAN : But they will not need to go for a variance with regard to meeting the zoning requirement, the five acre zoning requirement doesn't apply to them? MEMBER DANTES : I don't know what their building application is going to be because they don't have any ELIZABETH HOLTZMAN : But if they don't have more than 1.9 acres how can they possibly meet the zoning requirement? T.A. DUFFY : If they're legal pre-existing lot then it is our code addresses what size you need to building envelopes or setbacks for a pre-existing legal lot. ELIZABETH HOLTZMAN : If the size of the lot was less than two acres at the time the zoning was in effect or when the subdivision took place 1? January 18, 2018 Regular Meeting T.A. DUFFY : At some point they went and got approval for a subdivision from the Town of Southold at that point ELIZABETH HOLTZMAN : And that approval allows them to vary from the zoning at that time? Is that what you're saying? T.A. DUFFY : I'm saying I didn't review the whole map but if they at some point got a subdivision approval and if that lot was recognized by the town in a subdivision approval yes it was a recognized lot. ELIZABETH HOLTZMAN : I guess our terminology I'm just I don't understand how they could ,if this lot did not meet zoning requirements at the time of the subdivision and by the way they combined and uncombined I didn't go through and parcel of that which I would be happy to d,o for this Board but you know this is a lot of I don't know what word to use to describe it but maneuvering with regard to these properties, there was a time they were separated, they were combined and then they were separated but what they've admitted here is that I'm not hearing that they ever met whatever the zoning was which was two acres so I don't know how they can go ahead whether at that time or now that's my objection. MEMBER PLANAMENTO : I think maybe as a point of clarification when you say two acres I think and correct me if I'm wrong it's 80,000 square feet not necessarily two acres and I had looked at-the map just while we were all talking, it seems that all of the lots are greater than 80,000 square feet. I don't know if I am correct in saying that but based on the surveys provided MEMBER DANTES : Were greater than 80,000 square feet at the time. MEMBER PLANAMENTO : Yes, at the time. ; MEMBER DANTES : So it's not two acre zoning it was 80,000. Basically 80,000 square feet is in layman's term is a building acre r ELIZABETH HOLTZMAN : Okay so you're saying that the point they're making now is that they met the zoning requirement at that time. MEMBER DANTES : At the time of the subdivision. ELIZABETH HOLTZMAN : At that time. MEMBER DANTES : Yes. ELIZABETH HOLTZMAN : Right but that's in '89 and they're seeking to be grandfathered in. MEMBER DANTES : That's their argument yes. 141 January 18, 2018 Regular Meeting ELIZBETH HOLTZMAN : That's their argument and we're going to have an opportunity to respond to it. MEMBER DANTES : Pat, do you have any further comments? MEMBER ACAMPORA : I just have a historical question; who can answer this? Has this property been for sale previously or is this the first time in almost thirty years that this property is for sale? PAT MOORE : First time. MEMBER ACAMPORA : First time, any reason for that? MARTIN FINNEGAN : It's been in the family for over a hundred years, they just held on to it and it was I think some people passed on and it was (inaudible away from mic) MEMBER DANTES : Nick? MEMBER PLANAMENTO : No further questions. MEMBER DANTES : Bill? T.A. DUFFY : I have nothing; thank yo.u. MEMBER DANTES : At this time what I would like to do is make a motion to leave the hearing open for written submission until the next hearing is when Kim? BOARD SECRETARY : It would be February 1St MEMBER DANTES : I'm going to leave the hearing open for written submission until February 1St at which time we'll vote whether or not to close the hearing. I do not anticipate there would be another public hearing at this time so I'd like you guys to work together. Liz whatever you write please get it to Martin or Pat and they can get it to each other and if you guys write something, Martin or Pat I'd like you to give it to Liz and hopefully we'll review the documents on February 1St and we'll be able to vote whether or not to close the hearing. ELIZBATH HOLTZMAN : Will we have an opportunity on February 1St to ask for another opportunity to speak (inaudible away from mic) " MEMBER DANTES : You can submit something it's February 1s' is a public hearing, but we're not, I don't anticipate opening the public hearing, so you can make a submission in writing making that request if you want to do it on January 31St give us the paperwork. MARTIN FINNEGAN : Just so the record is closed except for written submissions? IS I January 18, 2018.Regular Meeting MEMBER DANTES : Yes. Motion to adjourn the hearing to February 1St and T.A. DUFFY : For written comments. MEMBER DANTES : For written comments. MEMBER PLANAMENTO : Second. MEMBER DANTES : All in favor? MEMBER ACAMPORA : Aye. MEMBER PLANAMENTO : Aye. MEMBER DANTES : Aye. (See Minutes for Resolution) HEARING#7121— HARRY and ELIZABETH DISIMONE MEMBER DANTES : The next application is Harry and Elizabeth Disimone #7121. Request for a variance from Article III Section 280-13C(2)(b) and the Building Inspector's August 21, 2017 Notice of Disapproval based on an application for building permit to convert an "as built" second dwelling unit in a pre-existing accessory garage into an accessory pool house with an "as built" second floor home office at 1) a home office in an accessory building is not permitted, located at 1100 Youngs Road in Orient New York tax map no. 1000-18-2-11.1. Is there someone here to represent the applicant? PAT MOORE : Yes, good morning again, Patricia Moore. I have Mrs. DiSimone and Joe Reed who is the contractor if there are any issues I can certainly have them help me in addressing them. I do have some paperwork that I want to provide. They are three separate documents put together with the paper clips so take the paper clips away you can have it. MEMBER DANTES : I have one question for you before you start. I think I saw somewhere in the application that at one point prior to zoning the building was used as a second dwelling unit when the owners rented out the main house. PAT MOORE : Yes, that's our understanding of the history if you when you take this apart you'll see I have my original letter to the Building Department asking that this that the building permit for the accessory the pool house be allowed to proceed because as you read the Notice of Disapproval they were considering this a second dwelling when in fact they took an existing :t6 January 18, 2018 Regular Meeting building that had the space above and had the bathroom and a little kitchen and they actually reduced it down to a pool house so we were hoping that the Building Department would see it as a reduction of the non-conforming or becoming more compliant than its original but the Building Department said no go to the Zoning Board and you know get the blessing from them. MEMBER DANTES : Do you have a Pre-C.O. for the second dwelling unit that was there? PAT MOORE : What they had is; no they have a Pre-C.O. for the house and the accessory building and at the time the Pre-C.O. was issued the inspector identified the kerosene heating system in that building but they didn't call it a second dwelling. So when my clients purchased the property; and let me back up a little bit because we will get to those issues, but let me bring it into some context here if you don't mind. Let me start off with this property was actually two pieces of property. I've given you in the packet the Zoning Board decision Edward Latham got a variance to divide the parcel that's 95 that has the house on it which is only 95 in width, the code required at the time 100 feet and so the Board granted the variance and you could see there was a little map attached to the Zoning Board decision; the one that says Latham to Saul that's 95 that's the one that has the house on it, adjacent was Haberman. That's the property that has the garage or accessory building on it. So if you go back to when this variance was granted in '63 that adjacent piece was owned by somebody separately and that accessory building was on that property. When the prior the people that sold to my clients they had bought both properties. They had bought from Latham and they had bought the Haberman property so at that point they had two parcels and when they sold to DiSimone because she owned a property on that street she continued to own on that street; she sold it but only if the two parcels would be combined. So it went from two separate parcels that would have been recognized as two separate lots particularly because it had a variance to it, they were combined and so now it's the pre-existing house it's still the same house. You saw it was renovated, that was by the prior owners and it still had this accessory, building that became the garage or the accessory building to the main house. The prior owners what you saw was an affidavit by the prior owners that said that the second floor it's not really a second floor it's a little studio space. You went in and saw the original it hasn't changed in all the years other than it's painted. You go up the stairs and it has this little studio space that was historically used by the prior owners as well. She's an architect and she would use that space for her own private office. What we wanted to do is maintain that second floor space. We didn't want to eliminate it because it's very useful. The pool house got a building permit. It's allowed to remain as its being proposed. It's allowed to have a bathroom and it has a little sink but it's not a dwelling. It's definitely being limited to a pool house and it has heat but realistically my clients this is a second home so it really kind of operates at the same time that the pool is open. 171 January 18, 2018 Regular Meeting MEMBER DANTES : Okay wait,just to recap; so when the lots were merged the previous owners gave up any chance of applying for a second C.O. for the second structure? PAT MOORE : These owners. The seller to my clients required that the parcel be merged, so,it precluded my client from converting this to a second dwelling or getting it legalized as a second dwelling. For what it's being intended for now is a pool house so I guess if they ever came out and lived permanently they needed their child or a caretaker to live there, there's a whole other set of rules for conversion of a detached accessory building. That may be a possibility but certainly not in the foreseeable you know time right now, they're young and they're back and forth. MEMBER DANTES : My other question is why is it a home office? Why can't it be I mean the space looks like space that other people in town call a workshop or something like that so why not just label it as a workshop? PAT MOORE : Well no because the Building Department won't recognize a workshop the Building Department MEMBER DANTES : What does the Building Department recognize? PAT MOORE : It's funny. The Building Department considers a workshop as somebody who fixes things and does tooling and MEMBER DANTES : Do they do artist's studio? PAT MOORE : I've had to come here for artist's studio believe it or not, they because the zoning code allows as an accessory use a workshop but doesn't really define a workshop. Over the years the workshop has been interpreted by the Building Department as more blue collar tinkering than professional or white collar computer I mean really there's no distinction now everybody uses a computer but you really can't call a sitting area with a computer a workshop according to the Building Department. They will send it to the Zoning Board so we're calling,it just accessory. It's not even it's not like a they're operating a business from there it's purely just an ancillary heated space. MEMBER DANTES : Will they accept a loft? PAT MOORE : The Building Department? MEMBER DANTES : Yeah. PAT MOORE : They won't accept; that's the reason we're here because a soon as it has and we even said listen the shower you can have an outdoor shower, you can't have an interior shower 181 January 18, 2018 Regular Meeting we accept that. It had an indoor shower but we're willing to accept that and that's why my letter to them to try to avoid having to come to the Zoning Board because to me it seemed pretty straightforward that if you have a little space and you want to sit there a workshop is no different. We should define a workshop as anything that is home use space. What's the difference between somebody who is tinkering with their car and somebody who's playing on the computer or you know on Facebook or something sitting in their space. I think that's something that certainly the Board in determinations can help guide the Zoning Board but so far every application to the Building Department that deals with ancillary space like this even if it's new whatever it comes to the Board and I think it's so that the Zoning Board can place restrictions on it, customize it to the particular space rather than leaving it to the Building Department's discretion. I don't know. That's the only reason I can think that even art studios are sent to you and I'm sure you've seen them. I know I've been before this Board on numerous occasions for private art studio space. It would be great if you clean that up but I won't make my client be the person that requires that. It would be helpful. Let me also just give you I'm sorry Pat do you have a question? MEMBER ACAMPORA : I'm just saying why not just use it as storage? PAT MOORE : Because storage implies that it's dry you're putting your stuff up there and you don't use it. MEMBER PLANAMENTO : You can have heated storage. PAT MOORE : Yeah but that really limits it. My client can't go up there and sit in that desk that exists. MEMBER ACAMPORA : It has paper stored in a desk. PAT MOORE : No, but that's I actually had that situation. Let's say that it's considered storage and the lights are on in the evening and you're sitting there and you're using that space, a neighbor calls up and code enforcement says I think somebody's up there using that space and the Building Department will be the first one to tell you no storage is what we all think a basement storage, attic storage non-habitable space to the extent that it is used for any office use, that's habitable. So that's a differentiation so that's just the way it's been. I can tell you that I don't agree with it but that's MEMBER ACAMPORA : If it's a pool house with storage PAT MOORE : But that's not well that's why I'm here. It's not a pool house with storage; it's a pool house with a little office space above. We don't want to turn it into a storage area because that's 19 January 18, 2018 Regular Meeting MEMBER DANTES : So they didn't disapprove the pool house, they're just disapproving the little space above that little sitting room there? I don't really understand the whole PAT MOORE : Honestly the yeah come on up because it was his submission to the Building Department that MEMBER PLANAMENTO : Pardon me just a moment, would ultimately there would be two C. of O.'s then? The pool house has one C. of 0. and in theory the second floor office space would need a second C. of 0. MEMBER DANTES : That's the way they wrote the Notice of Disapproval. PAT MOORE : What they would write is a pool house with an office space above. One C.O. but they at least would identify the second that small annex upstairs to be something other than just storage. Storage would be a denial because that's what the Building Department would say. You don't need the Zoning Board to give me approval for storage. Storage is always allowed. `It would be like taking your basement and making it storage. MEMBER DANTES : Wait but I've seen like legal second stories on top of pool houses where the Building Department didn't disapprove before, I just don't remember how they phrased it. JOE READ : Joe Read, contractor. When the Building Inspector came to do the inspection on th,e pool they went upstairs and they said this is illegal and I said it's always been there. We didn't do anything and he said you can't have it and what you have to do it looks like it's finished. It has electricity up there they would want everything out and if you can see the pictures I mean it's not a big space or anything like that and as far as the owners knew you know when they bought the house this was part of the I mean no one was hiding this at all. So, what they're saying is if we don't get the approval we're going to have to tear everything out of there but it's not really finished (inaudible) but they won't allow it. They won't allow the use of it. PAT MOORE : Let me just for because when my clients purchased it was advertised in the Albertson website as additional studio with sleeping loft so at the time they purchased it was before they converted it to a pool house the whole space was considered an additional studio space with a sleeping loft. My client did not want to turn it into a sleeping loft. They want to make it a pool house, but just retain the electricity essentially is what.the Building Department is saying well you put electricity; and I've had them do that before on other occasions. When you take let's say an attic and you add electricity to it you may be allowed one plug okay but once you put electricity that's obvious that it's for a light switch, computer whatever they will say no sorry you can't convert that space. It becomes more habitable and it comes to you or it comes out one or the other. 201 January 18, 2018 Regular Meeting MEMBER PLANAMENTO : I'm still at a loss though why wouldn't somebody or why wouldn't the applicant actually just apply for a pool house with some sort of finished space on the second floor? PAT MOORE : Well that's what we tried to do but the Building Department said no. That would have solved it, that would have avoided having to come here but the Building Department said no that I think Gary Fish he was still here at the time, was it Gary? Gary Fish was doing the inspections and as Joe mentioned when they were doing the inspections for the pool, the pool house was already there so it's just cosmetics on the inside of the pool house. It was nothing structural but they said no, no get a building permit for the pool house. They got a building permit for popping a window in and out that's fine and just making sure electrical was all conforming to code, but they said we can't give you a permit for the use of that space that has again always been there. So I will also give you these other Building Department records from when the house was renovated by the prior owners and in that building permit application she had a little I mean it wasn't part of this permit so I know the Building Department would say we weren't even looking at it but on her plans she shows existing two car garage with loft above so it's always had this loft above it just wasn't the garage wasn't renovated (inaudible) so that's the third set of documents. I just gave you the building permit application for the house renovation. The reason I started off by saying this was a separate lot, had it remained as a separate lot it could have been a dwelling you know. It wouldn't of had to be a pool house, it could have been converted to a you know a full C.O.'d dwelling but the fact that the lots were merged and in fact that's actually a benefit to the community in that they took two lots and made it one the only thing that my clients are asking for is very minimal which is leaving the loft to be used for their personal office space. They're not building anything, they're not doing anything they're just sitting there and you know on a computer. MEMBER PLANAMENTO : So Pat if I may, the applicant had the kitchen and bathroom downstairs because there was some sort of a previous living entity; it was a separate property. They're today merged, the applicant as I understand during our site inspection, had admitted and I don't know if this is correct or not but they would be removing the shower. PAT MOORE : Yes. MEMBER PLANAMENTO : Why wouldn't they consider keeping it as a separate living unit, keeping the kitchen, the shower? PAT MOORE : You can't MEMBER PLANAMENTO : It was built prior to 21 January 18, 2018'Regular Meeting MEMBER DANTES : Since they merged the lots they gave up the right to the use, the use! is extinguished. MEMBER PLANAMENTO : (inaudible) PAT MOORE : I mean we didn't have well it was pre-existing but unfortunately other than by the letters there was no town documentation as to what the improvements were in that building and had my client said I want to make this a separate living a separate dwelling certainly I would have pursued that but that wasn't what they wanted. They just they're actually voluntarily downsizing MEMBER PLANAMENTO : Diminishing. PAT MOORE : Yeah, diminution to a pool house. Sso we don't want to make it something it isn't or ask for more than what the client really cares to do with it. Why would we fight a battle to make it a second dwelling which would be a non-conforming use and just allow it to be a permitted pool house with what I believe is a permitted use which is the loft above the pool house to be continued to be used as habitable space. To me I didn't think we needed to be here but the Building Department their not in the business of discretionary permits, their world legally is black and white and because the black and white paperwork the Pre-C.O. failed to call it a second dwelling or even describe the loft and that was just the way the permit was written. Nobody was hiding anything, it was just that we weren't as detailed at the time. MEMBER DANTES : Question for you, so basically what your application is, you're asking us to grant some sort of conditioned space on the second floor? PAT MOORE : Correct. MEMBER DANTES : It doesn't have to be called a home office. PAT MOORE : It's a loft, habitable space. MEMBER DANTES : Some sort of habitable space. PAT MOORE : Correct. MEMBER DANTES : If we want to do an alternative relief. PAT MOORE : Call it whatever you want as long as the Building Department doesn't say well you know what you want to use it for now can't be because we've called it something else. I can't read the bubble over anybody's head so 22 January 18, 2018 Regular Meeting MEMBER DANTES : I think I've seen applications where they had a second floor on a pool house that wasn't part of the Notice of Disapproval. I just have to go back to the files and find the why. PAT MOORE : I know why yeah it would be interesting to know yeah there might have been some Pre-C.O. that referred to it so if there was legal acknowledgement that that existed and you're not changing it, it has pre-existing non-conforming use. MEMBER DANTES : The one I'm thinking of was a brand new pool house on Fishers Island. PAT MOORE : Ah well, Fishers Island is different. MEMBER DANTES : It was a dimensional setback it wasn't they didn't we can look at our files and see what's there. PAT MOORE : Whatever brings whatever enables us to get past the Building Department we're certainly willing to accept alternative relief that allows that space to continue to be used. MEMBER DANTES : Any other comments from the Board, anyone in the audience who would like to speak? MEMBER PLANAMENTO : If I may just one question, and this came up in an earlier application and as the newbie just trying to avoid future conflicts where things are sort of left amorphous, there's a pergola on the accessory structure-now on the survey the pergola the framed pergola appears is that covered by the pool house permit? JOE READ : How do you define pergola? PAT MOORE : It's like it's attached come on up please. JOE READ : That was on the original permit. MEMBER PLANAMENTO : For the pool house? JOE READ : For the pool house. MEMBER DANTES : It was on the plans? PAT MOORE : It's on the plans. MEMBER PLANAMENTO : It's on the survey. I didn't see the plans. JOE READ : It's on the plans for the we got a C.O. for the pool and it was on those plans. MEMBER PLANAMENTO : So does the C.O. say also the pergola? 231 January 18, 2018 Regular Meeting JOE READ : No, because I connected it, instead of free standing I put a board on it so it's connected so they wouldn't approve that they want PAT MOORE : So they would approve it. JOE READ : They would approve it on the pool house but not MEMBER DANTES : But you don't have the C.O. for the pool house yet? PAT MOORE : Correct. The pool house permit is still open because of this issue but the pergola is part of the pool house application. MEMBER PLANAMENTO : In here, in fact, it's shown here on part of the packet. MEMBER DANTES : I'm going to make a motion to leave the hearing open to the next meeting just to give us a chance to do a little bit of research and so I make a motion to adjourn Harry and Elizabeth DiSimone till the next meeting February 1St MEMBER ACAMPORA : Second. PAT MOORE : So would you if you find something and you need some additional paperwork from me please share it with me. Do you have a time or you're MEMBER DANTES : Probably it will be before the hearing the actual hearing itself. February 1St we don't have a Special because of the snow so it's a public hearing so we'll probably make 'a motion to close the file reserve decision before we start the hearings the public hearing. PAT MOORE : You start usually at 9:30 or so, so between 9 and 9:30 1 would imagine. ' MEMBER DANTES : Not before the public hearing at the start of the public hearing (inaudible) then we'll PAT MOORE : Okay well put it this way do you want us here to address the application further or it's more for your own understanding. T.A. DUFFY : You will have to make that decision for yourself. PAT MOORE : If you give us time we'll be here. T.A. DUFFY : I will advise my Board not to answer that question. PAT MOORE : Alright fine I will be here how's that and hopefully your research on the other applications that it did not become an issue we can understand why that would be great thank you. 241 January 18, 2018 Regular Meeting MEMBER DANTES : Motion to adjourn Harry and Elizabeth DiSimone until February 1't MEMBER ACAMPORA : Second. MEMBER DANTES : All in favor? MEMBER PLANAMENTO : Aye. MEMBER ACAMPORA : Aye. MEMBER DANTES : Aye. (See Minutes for Resolution) HEARING # 7122—KATHRYN FARRAND MEMBER DANTES : The next application Kathryn Farrand #7122 request for a variance from Article III Section 280-15, Article IV Section 280-18 and the Building Inspector's September 19, 2017 amended October 10, 2017 Notice of Disapproval based on an application for a building permit to construct additions and alterations to an existing single family dwelling and to construct a new accessory garage at 1) single family dwelling having two front yards measures less than the code required minimum front yard setback of 50 feet, 2) accessory garage located in other than the code required rear yard at 4800 Nassau Point Rd. in Cutchogue. Is there someone here to represent the applicant? PAT MOORE : Yes, Patricia Moore on behalf of the applicant. I have Mr. Mooney here today if we need to address any issues. Here's another one where the original house which is an existing house was built with a setbacks of the one parcel. This is a combined parcel of two previous lots that were combined to make one lot. So what has occurred is that this proposed addition is not meeting the larger sized lot setbacks. Rather it conforms with the previous setbacks of one half of this lot size. The variances are to make alterations, renovations to the existing house and propose two story additions. The addition on the north is maintaining the existing setback but because of the angle of the I'm sorry it's Carrington Rd. is considered a road a front yard setback even though the road is not open and I think when you go there you can see that there is deer fencing. The road was for the most part kept private and closed so even though under the code it's considered a front yard, it is what would be typically a side yard setback. At the time the house was built it was considered a side yard. I can't tell you why the code hasn't changed in its determination but at the time what it was probably because the road was not open but the Notice of Disapproval now calls it a front yard so that's why we have that variance request. The addition as I said is just extending the existing setbacks of the 25 January 18, 2018 Regular Meeting existing house. On the opposite side we have an addition that is fine, the parcels are combined so there is no issue there. However because the house is extending behind, the garage which obviously you saw is built and is waiting for a C. of 0. ends up going into the technical side yard so that's why the garage is included. The garage is there but when you put an addition on the house it can often times result in the garage being technically placed in the side yard. So that's why that variance is listed. MEMBER DANTES : What is the survey write proposed garage on it? PAT MOORE : Because the surveyor at the time, this was the under construction survey so it was the same survey that was used for the construction of the garage but I gave you the building permit for the garage as part of your packet so that you would know that in fact the garage was built because it is not in the side yard when the addition before the addition is constructed. MEMBER DANTES : So this label should be existing garage then? PAT MOORE : Well it doesn't have a C. of 0. yet but yes it should be labeled existing garage because ninety nine percent of it is done. MEMBER DANTES : Okay I understand now. Do you have any records of previous variances that we've granted or setbacks from paper roads? I know there's a couple in Nassau Point. I believe there is one right down the road from this one for a swimming pool. There's,a couple for swimming pools. PAT MOORE : Yeah I mean I have a feeling I did do that research but I don't know that I've given it to you so if you like I can provide it to you. There's actually a variance Mr. Mooney just reminded me there was a variance granted for the addition of the original renovation of this house so it has gotten a variance from Carrington Road for the first renovation so this is actually my clients just bought the property and they are doing another renovation so the Building Department requires us to come back because of the new renovation to ask for the same variance that was approved previously. It's in your packet correct? Thank you Mr. Mooney for remembering that. MEMBER DANTES : Actually it even lists the old variances in this variance application. PAT MOORE : Yes I did because that's my what I have to do. MEMBER DANTES : No I mean in the actual decision that's PAT MOORE : Oh I did good, okay thank you. I thought that I had done the work but good I'm glad I was on the ball. 26 January 18, 2018 Regular Meeting MEMBER DANTES : Nick any questions? MEMBER PLANAMENTO : Yeah more of a sort of a family safety issue maybe. I wouldn't go so far as to say public but during my site inspection looking at the garage structure I'm a little confused given the topography where the driveway extends to I guess which would be the garage bay on the south side, there's a precipitous drop you know the garage is fifteen feet off the lot line in a conforming location but there's got to be four if not five feet between the grade of the garage and what is labeled as the retaining wall on the survey at the property line. So is there any plan, how are you going to mitigate sort of that transition so that somebody backing in or out of the garage or just a person standing there? PAT MOORE : Come on up because he would know the specific plan on the garage. JAMES MOONEY : Hi, James Mooney. That is going to be addressed with the landscaping, Mr. Planamento. We're looking at that right now and if need be down the road if we need any further permission to build any type of wood retaining wall but that's going to be leveled when the driveway is fixed. There's no driveway yet. MEMBER PLANAMENTO : Understood but you could see that I mean clearly if you came out of the garage JAMES MOONEY : You're right yes. MEMBER PLANAMENTO : I think that the terrain slopes already fourteen to eighteen inches in front of the garage so you really need to extend it a couple of feet. JAMES MOONEY : We've retained Ken Dickerson. He's addressing this issue. He's coming in to do a layout to bring in additional topsoil and to level that off. MEMBER DANTES : Let me just read something into the record. In ZBA decision for file #6564 concerning this subject property, we wrote in additional information in ZBA appeal #256 we granted the subject parcel a reduced lot yard setback from Carrington Road then recognized as Carpenter Road the amount or percentage of variance relief was not referred to in appeal #256 (inaudible) granted a reduced front yard setback on a corner lot. So, this application before us is the third variance for the same setback for setback relief on this lot from Carpenter Road so we've granted this variance PAT MOORE : Right, it would make sense because any addition any construction unfortunately on this house because of its original placement is always going to need a variance from Carrington Road just because and I'm actually dealing with that right now on other Nassau Point properties. Those roads from the thirties when the original five hundred acres was 27 January 18, 2018 Regular Meeting granted they considered all of these roads they call them roads and even though the one's on the water are used only as pedestrian access they don't say that so every application in Nassau Point that deals with adjacent to some of these unopen or limited access roads are being treated as a front yard setback so unfortunately that's just the way the original deed conveyed the parcels to the Nassau Point property owners association is calling each of these road ends roads and the exception of if you don't have access to the road you don't have to consider it a front yard. Everybody in Nassau Point has access to these roads. Typically they are pedestrian access because the association doesn't want to clear cut fifty feet to the water. First you're probably not permitted to do that by the Trustees or D.E.C. but also it would change the character of the Nassau Point area. So these are very typical applications that you have in this area, anybody who has these road ends or road ends on the water or connecting paper roads within these Nassau Point streets so yes thank you for the record because it has been the front yard variance has been recognized as meeting the criteria area variances. MEMBER PLANAMENTO : Eric to this point the Notice of Disapproval indicates the new setback would be 40.5 feet from Nassau Point Road but the survey illustrates 45 and I have a note actually in the discussion that you clarified that it is in fact 45. 1 don't know if that what Kim had shared or how this came about. PAT MOORE : No, well there's two setbacks. The 40.5 the surveyor measured to the porch. MEMBER PALANEMTO : Nassau Point Road. PAT MOORE : Nassau Point Road yeah. You see 40.5 to the street from the stoop that's that 40.5. MEMBER PLANAMENTO : I don't have that on the survey unless I'm looking at the wrong one. Oh 40.5 from the stoop, I'm looking at the smaller version. So its 45 right this one got it. Thank you. PAT MOORE : Yeah the closest point to the house and those steps is 46.1 so it's just the stoop that encroaches. As you pointed out the topography of this property is somewhat hilly, unique because it was quite a challenge to post this property and three feet of snow because I had to go up the snow bank to post it so the house is elevated from the road. It's at a higher terrain than the garage. You go down and the garage is at a lower terrain and then the road is at a significantly lower terrain. The additions are not going to be significant impact on the character of the neighborhood. Any other questions you might have? MEMBER DANTES : Pat? 2$ January 18, 2018 Regular Meeting MEMBER ACAMPORA : No I basically had the same concern Nick did with regard to and Mr. Mooney what is your proper title and name I don't think we have that. JAMES MOONEY : I am the homeowner. Kathryn Farrand is my wife. The house is in her name. MEMBER ACAMPORA : I had the same concerns that Nick did because of the sloping of the property and you can see when I was there that there was water running down into Nassau Point Road and everything how you were going to alleviate that problem. PAT MOORE : He actually came with some photographs. Right now unfortunately with the snow and the fact that the landscaping hasn't been completed you don't see the mitigation. JAMES MOONEY : Once again we have retained Ken Dickerson. We have put in tremendous runoff wells off the garage and in front of the home right now. PAT MOORE : We only have one copy but these are for your records. They are connecting the house and the garage JAMES MOONEY : They are twenty one feet deep. They are (inaudible) stacked on top of each other and its eight foot wide. So we over built it to correct any issue with any runoff. PAT MOORE : Actually that's the town code anyway. We have to address drainage on site so MEMBER ACAMPORA : I just didn't know where you were putting it what you were doing with it. JAMES MOONEY : And once the property is landscaped with grass and what not there will be no runoff at all. MEMBER DANTES : Nick anything else? MEMBER PLANAMENTO : So Pat just going back to my initial point and I think it was mirrored by our Pat, I think would the applicant and he had offered that Ken Dickerson is involved in doing the landscaping and working on that sort of transition between the driveway and the fifteen foot side lot line of the garage, would the applicant me amenable if we put some sort of condition in the decision to ensure safety. I mean it's an odd spot. PAT MOORE : Oh absolutely, no problem. JAMES MOONEY : Whatever you need, whatever you require we're willing to do. Right now with the ground frozen we can't proceed right now but that will be addressed I promise you whatever has to be done. I have children, we're not going to leave that 291 January 18, 2018 Regular Meeting MEMBER PLANAMENTO : It seems also I mean even if you had some sort of retaining wall that maybe you will have some sort of a railing because it is JAMES MOONEY : That's part of Ken's design. PAT MOORE : Do you have anything drawn up by chance? JAMES MOONEY : Not yet. With the holidays and what not we MEMBER DANTES : Anything else from the audience? Hearing no further questions I would like to make the motion to close the application reserve decision to a later date. MEMBER ACAMPORA : Second. MEMBER DANTES : All in favor? MEMBER PLANAMENTO : Aye. MEMBER ACAMPORA : Aye. MEMBER DANTES : Aye. (See Minutes for Resolution) HEARING#7116—ABIDIN KANDIC MEMBER DANTES : The next application is Abidin Kandic #7116 request for variance from Article XXIII Section 280-124 and the Building Inspector's June 30, 2017 Notice of Disapproval based on an application for building permit to construct a garage addition to an "under construction" single family dwelling at 1) less than the code required minimum front yard setback of 40 feet located at 57130 Main Road Southold, NY. Is there someone here to represent the applicant? JACOV SARIC : Yes my name is Jacov Saric I'm the architect (inaudible) MEMBER DANTES : The first question is why are you here? JACOV SARIC : We need permission to build a garage in a non-compliant location. MEMBER DANTES : And why is this location non-compliant. It looks like the Main Rd. I mean I would think that it is. 30 January 18, 2018 Regular Meeting JACOV SARIC : (away from microphone) The reason why we're here is because we have a flagged lot and it requires a 40 foot setback. We have provided the 40 foot setback from the existing right of way but the department of building also wanted us to provide a 40 foot setback at the north property line. MEMBER DANTES : What does the north property line border? JACOV SARIC : It borders a commercial parking lot. MEMBER DANTES : How far is the property line from the actual road itself? JACOV SARIC : The property from the actual road itself is 200 feet. MEMBER DANTES : I have no further questions, Nick do you have anything? MEMBER PLANAMENTO : Yes, during the site inspection I noticed that the property sort of has like a courtyard effect where the I guess the south side of the house overlooks a pool with a pool house, why did you not propose to put the garage maybe attached to the pool house structure which is attached to the house? JACOV SARIC : Because we wanted to utilize the access to the site. We wanted to organize the site and place the structure on the site that it's given the location and the orientation of the site that is most favorable we designed the entire house in accordance to (inaudible) house principles we've constructed the house in accordance to (inaudible) principles so any access that would embark on the south side of the lot would kind of prevent us to utilize the southerly exposure. If you take a look at the rendering, the renderings we submitted several of them you will or even if you take a look at the site plan which is on page number two and please note the north arrow right there so the courtyard in effect was intentional. MEMBER DANTES : Actually I'm looking at this Nick the survey, it looks like if you do that you might get in to the rear yard setback so you might need a variance anyway. MEMBER PLANAMENTO : I was just thinking of that although had it been where the garage rather the pool house is located it would be in a conforming location. JACOV SARIC : Absolutely but to utilize if you're looking from the point of the zoning ordinance and how the zoning regulates the location of the structure you're absolutely right. That's why we are in front of you right here because what we were trying to achieve is the best access point to the site from the right of way and then utilize the most (inaudible) exposures to utilize (inaudible) principal. 3:1 January 18, 2018 Regular Meeting MEMBER DANTES : Another question is where is the swimming pool on your I guess I'm looking at the first page of the architectural plans that you submitted? I don't see a swimming pool on the survey. JACOV SARIC : At the moment of the submission of the application the swimming pool was still in the process of being reviewed and discussed with the department of building. However they agreed to approve as indicated in the rendering is going to be exactly where it's placed and is going to be within the setback lines. So it's not encroaching any it is an unusual location but it's accepted by the department of building. MEMBER DANTES : Okay I just wanted to make sure that you don't have to come back here next month and do this all over again. JACOV SARIC : No we have that taken care of. MEMBER DANTES : Ok good. Pat do you have any questions? MEMBER ACAMPORA : I had basically the same question Nick did because as you're coming up that right of way access road where you wish to place the garage don't you have to kind of make a quick turn there because you have the existing fence that's up on the other property.!I mean I just see it as kind of a difficult maneuvering position. JACOV SARIC : I see your point but you would have to make that turn at any point along that property line because you would have to make that almost ninety degree turn at any point along that is westerly property line so from any point from that right of way you would have to make that turn but positioning closer to the Main Rd. and in that front yard that is bordering to the parking commercial parking lot because there is a chiropractor's establishment over there that has eight cars parked over there so you know it made the most sense to kind of create the to utilize the site in the best possible way for the (inaudible) MEMBER ACAMPORA : Are you planning to do anything on that southerly side? JACOV SARIC : On the southerly side of the property, no it's going to remain open with exception of the landscaping that is going to go along the fence which is going to be green giants or whatever the landscaper puts in. MEMBER ACAMPORA : Are you planning on doing any kind of landscaping then on the northerly side to kind of block that parking lot? JACOV SARIC : We absolutely we are planning to plant green giants along the property. MEMBER DANTES : Will the garage be visible from the Main Rd? 32 January 18, 2018 Regular Meeting JACOV SARIC : Absolutely not. MEMBER PLANAMENTO : On the survey both of the circular driveway entrances there seems to be some indication of something, what is that? JACOV SARIC : Yes, my apologies. These are like pergola entrances like little structures with posts and a little roof as illustrated in the rendering yes sir. MEMBER PLANAMENTO : Do they need C.O.'s? MEMBER DANTES : What are they? MEMBER PLANAMENTO : Something I mean it's unusual MEMBER DANTES : I don't know what that is. MEMBER PLANAMENTO : Well that's what he was saying. It's like an entry gate like a pergola like a roofed structure. i MEMBER DANTES : Is it over a hundred square feet the roofed JACOV SARIC : No sir, its 15 feet in length and 3 %feet in width. MEMBER DANTES : Did you have these on the T.A. DUFFY : The concern is they could be considered a structure in the front yard. Did the Building Department see those on the plans? JACOV SARIC : Yes they have and they didn't comment on it. MEMBER DANTES : I'm just trying to make sure you don't have to come back twice that's why, anyone else in the audience that would like to speak? Do you have any questions Pat? I MEMBER ACAMPORA : It looks like on this new photo that you've given us is there going to be a jdoor from the garage in to the house? I JACOV SARIC : Yes there will be a door from the garage in to the house for the convenience because the kitchen is located right over there so it would be just logical to provide the access for the groceries and for easier access. MEMBER DANTES : Nick anything else? MEMBER PLANAMENTO : No further questions. 33 I January 18, 2018 Regular Meeting MEMBER DANTES : Hearing no further questions I make a motion to close the application reserve decision to a later date. MEMBER ACAMPORA : Second. MEMBER DANTES : All in favor? MEMBER PLANAMENTO : Aye. MEMBER ACAMPORA : Aye. MEMBER DANTES : Aye. (See Minutes for Resolution) HEARING # 7117— DAVID HERMER and SILVIA CAMPO MEMBER DANTES : Next application is David Hermer and Silvia Campo #7117 request for variance from Article XXII Section 280-116 and the Building Inspector's August 7, 2017 Notice of Disapproval based on an application for building permit to construct additions and alterations to an existing single family dwelling at 1) located less than the code required 100 feet from the top of the bluff located at 3675 Nassau Point Rd (adj. to Little Peconic Bay) Cutchogue, NY tax map 1000-111-9-4.2. Is there someone here to represent the applicant? PAUL RICE : Yes my name is Paul Rice I am the architect for the client at this residence and we are proposing to add 130 foot second story addition to an existing house for the expansion of a master bath. It is over existing already covered first floor space. We will not be increasing any amount of fixtures. We will not be increasing any roof or draining of water from the site. It will not be affecting anything on the property. I believe it was more an administrative reason why we were requested to come in front of the variance Board. MEMBER DANTES : So the existing structure that you're maintaining the existing setback from the top of the bluff? PAUL RICE : Yes we are actually adding to the street side of the house not closest to the water. We are going over the existing kitchen just we're not expanding any lot coverage or anything. We're going over existing square footage space. MEMBER DANTES : But it's still on the setback area? 34 i i January 18, 2018 Regular Meeting I 'PAUL RICE : It's still within the 100 foot setback area of the top of the bluff yes but the house as it currently stands is probably 35 feet so we feel that you know coming to 65 feet is actually not quite as egregious as the existing house is. MEMBER DANTES : Have you submitted copies of any other variances that we've granted before? PAUL RICE : I have not. MEMBER DANTES : I will tell you if you could go to the office and pull it I think there's one because it's a fairly new the statute is fairly new it was changed a couple of years ago so we did grant one (inaudible) setback you could go to the office and find it and put it with the application that would help. Are there any other non-conforming setbacks in the neighborhood that you know of? PAUL RICE : I'm not aware of any other non-conforming setbacks in the neighborhood. MEMBER DANTES : Is this house forward of the other houses that are on the water side of the bluff or do you think it's about the same? PAUL RICE : No it's about the same actually, if actually a little farther back. I believe it was built later than the ones on either side of it. MEMBER DANTES : Do you have an aerial photograph in the application here? PAUL RICE : I do not. MEMBER DANTES : Do you think you can pull an aerial for us and submit it to us because that would help the character of the neighborhood? PAUL RICE : Sure. MEMBER DANTES : Nick do you have any questions? MEMBER PLANAMENTO : I feel a little bit like the safety patrol today. I'm just curious during the site inspection on the north side of the property there's a propane tank behind a retaining wall that's just sort of held in place with two like rebar pins, did you notice that? PAUL RICE : The retaining wall of the driveway? MEMBER PLANAMENTO : Yes. So when you pull in to the driveway where the house is in front of you on the north side the left in other words where the foot path is that takes you to the bluff side of the house right below the retaining wall is a propane tank and it sort of you know is 35 January 18, 2018 Regular Meeting there any plan to do anything there? It just looks extremely unsafe like it's going to roll into the house below. PAUL RICE : We'd be happy to do whatever is required. They are fairly new owner of this and they are in the process of you know assessing the entire property, probably at some point going to reduce some of that driveway but we'll take that certainly under advisement. MEMBER DANTES : Is this a big propane tank Nick? MEMBER PLANAMENTO : I'd say it's like 250 lbs. MEMBER ACAMPORA : It's a big a good sized one, it's like aqua color or something. MEMBER PLANAMENTO : Yeah I don't know it's just weird the way it sits above the other house which is far below. MEMBER ACAMPORA : I was actually concerned about walking in that area, one good slip and I'm down the drain. BOARD SECRETARY : Do you have green cards? PAUL RICE : They were sent in but I have photos, I sent them in just a couple of days ago but they all did come back. MEMBER DANTES : Do you have the photos on you? PAUL RICE : Yeah. MEMBER DANTES : You want to just give them to Kim we can make a copy of them. Alright just maybe email them and when you get the originals get us the originals as well. MEMBER PLANAMENTO : I think also maybe for the record I mean clearly there's like that roof terrace, this is the area that's being converted into the extended bathroom. So there's already an outdoor terrace at the site. MEMBER DANTES : Do you know if you'll have to go to Trustees as well? PAUL RICE : No they said we did not. MEMBER DANTES : Do you have any storm water runoff plans? PAUL RICE : We do not but it's because it's not increasing any storm water runoff. MEMBER DANTES : Would the applicant be willing to install dry wells under the leaders and gutters? 36 January 18, 2018 Regular Meeting ,PAUL RICE : Sure. MEMBER DANTES : I don't think I have anything else, Pat do you have anything else? 'MEMBER ACAMPORA : No. I'm glad you addressed the leaders and gutters because I think you know the extension will have to have something on it. (MEMBER DANTES : I think the Town Engineer will end up reviewing the building permit application and they'll decide if you conform with the town's storm water runoff code or not. They might ask for it anyway. I think we'll ask for it as part of our decision. Let's see what Soil and Water recommends. MEMBER PLANAMENTO : Just keeping the machinery off the top of the bluff. MEMBER DANTES : Soil and Water says at the time of the visit the bluff appears to be in excellent and stable condition with vegetated cover and the yard leading to the bluff top is also well vegetated with established turf grass. No resource concerns involving runoff or erosion were apparent. Soil and Water is asking that we condition any approval that heavy machinery not be used within twenty five feet of setback of top of the bluff. PAUL RICE : Absolutely, it will all be approached from the driveway or the west side. MEMBER DANTES : Soil and Water is also asking for down spouts, drywells and gutters on the south side of the house as well as any drywells to the existing guttering system on the north side of the house. One more agency file we're going to look at, LWRP states that your application is exempt from their review, anything else Nick, Pat? MEMBER PLANAMENTO : No. MEMBER ACAMPORA : No. MEMBER DANTES : Hearing no further questions I'm going to we're still going to ask you to get a copy of that variance as well as an aerial and I'd like to close the application with the exception of receiving those two documents PAUL RICE : The aerial photograph and the variance okay. MEMBER DANTES : Yep and we'll reserve decision for a later date. So the application is closed except for us taking those two documents and after you get that we have sixty two days to render a decision. PAUL RICE : Great. Regarding the dry wells and leaders and gutters is that something that I would address in what I send to you as well? 37 January 18, 2018 Regular Meeting MEMBER DANTES : If you want to you can but that is something that the Building Department is going to take a look at and the engineer as well. PAUL RICE : And the propane tank same thing. MEMBER DANTES : We'll put that in our decision. If you can_get that to us this week we might be able to give you a decision on February 1S' PAUL RICE : As in tomorrow?This week yeah I can do it as quickly as possible sure. MEMBER DANTES : Or if you get it to us by the end of the next week. PAUL RICE : I will do it as fast as I can. MEMBER DANTES : So I'm going to make a motion to close the hearing no I'm going to make a motion to adjourn the hearing to February 1St for the purposes of receiving those two, the comp. variances and the aerial view photograph. Is there a second? MEMBER PLANAMENTO : Second. MEMBER DANTES : All in favor? MEMBER ACAMPORA : Aye. MEMBER PLANAMENTO : Aye. MEMBER DANTES : Aye. (See Minutes for Resolution) HEARING #7124— PETER and ELAINE PSYLLOS MEMBER DANTES : Next application is Peter and Elaine Psyllos #7124 request for a variance under Article XXII Section 280-116 and the Building Inspector's August 31, 2017 Notice of Disapproval based on an application for a permit to construct an accessory in-ground swimming pool at 1) located less than the code required 100 feet from the top of the bluff located at 2886 Ruth Road Ext. (adj. to the Long Island Sound) Mattituck, NY 1000-105-2-1. Is there someone here to represent the applicant? BRUCE ANDERSON : Good morning, Bruce Anderson Suffolk Environmental Consulting for the applicants Peter and Elaine Psyllos. I'm going to hand out aerials that I will be referring to in the presentation. The applicants Peter and Elaine reside in 2686 Ruth Road Ext. in Mattituck which 38 January 18, 2018 Regular Meeting is a waterfront property. The property contains a bluff and there is actually a lower section of it and a hill that's behind it. The survey that was submitted with the application depicts the bottom of the bluff it also depicts the coastal erosion hazard line. We also in our aerials locate other features that may be important to you such as designation specifically the velocity zones. The applicants are looking to install an in-ground pool measuring 20 X 40 feet with a surrounding at grade patio. We're asking for relief from 280-116 which requires a 100 foot setback from the top of a bluff or bank. We're in an R-80 zone. Side yard required for accessory structures in the zone is 25 feet. At present the pool is 43.1 feet from the side lot line. So the pool at 60.3 feet from the top of we'll call it the secondary bluff necessitates relief of 39.3 feet. So that is our request. We addressed the first part is that it is our contention that an undesirable change will not be produced as to the character of the neighborhood if a variance is granted because first the pool is located on flat land and is suitably set back from the top of the bluff. Second we submit the property is adequately screened from adjacent properties all from the east and the west by dense vegetation along the side lot lines and thirdly the siting of the pool between the dwelling and the bluff is consistent with the predominant patterns found in the neighborhood. As to the second (inaudible) the benefit sought by the applicant cannot be achieved by other methods feasible for the applicant to pursue other than an area variance because the distance between the top of the bluff and the dwelling and its seaward contour is insufficient to meet the bluff setbacks. We submit the relief is not substantial because a. the pool is shifted to the one side of the property thereby maintaining structural setbacks in excess of 100 feet from the remainder of the rear yard and secondly because the relief constitutes 39% of requirement thereby being less than 50% which is the usual measurement we apply in analyzing substantial variance relief. The fourth part relates to the environmental conditions of the site and then I'm going to spend the majority of my presentation speaking of that but we submit that the variance will not have an adverse effect on the physical or environmental conditions of the neighborhood and here I want to speak to the aerial photographs that are before you. The aerial photograph the first one on page one on the top depicts the proposed pool in relationship to the approximate top of the bluff which was taken from the survey and applied to adjacent properties based on topographical information that we were able to obtain in our office. You see the 60.3 foot setback from the edge of the pool to the closest point of the bluff you will note that the bluff line migrates southward at the north eastern corner of the rear yard. You will also note that the pool is proposed is 235 feet landward of the coastal erosion hazard line and is approximately 215 feet landward of the velocity zone described by FEMA. There is no threat of this pool or its location relative to coastal flooding because it is in excess of 200 feet landward of the velocity zone and 235 feet landward of the coastal erosion hazard line which defines the coastal hazard for this property. As we go to the aerial photograph number two which is the second in your stapled package we expanded laterally to depict the properties to the east and the west you will see that we have a pool two properties on both properties to 39 January 18, 2018 Regular Meeting the west and we have another pool property to the east. These pools are found between the house and the bluff just as our property is. Again we show the flood zone as well as the coastal erosion hazard line. MEMBER DANTES : I have a question for you Bruce. Never mind keep going. BRUCE ANDERSON : If we go to the third aerial this is an interesting aerial, it's interesting because it was taken from an angle from the Long Island Sound overlooking the property and the take away from that aerial should be that we have a very, very stable bluff. It is extremely well vegetated. There is front and beach. There are no erosion concerns on the property although two doors down you will see that probably it would be advised for that property owner to vegetate the near shore bluff area and that would be the coastal hazard area as defined by the code so that Board take note we have a very stable bluff and then finally the aerial photograph number four which is the final aerial in your package you'll see that we turn the pool sideways to increase a bluff setback from the 62 feet to the 75 feet thereby also increasing its distance from the coastal erosion hazard line from 235 feet to 255 feet. We provide this to you as an alternative in your deliberation but we want you to understand that the way we laid it out in a north south orientation is the preferred plan of the applicant and we think that regardless of which alternative is chosen there would be no impact to the bluff which is the point of the regulation. I am in receipt of actually three letters that are related. They are agency letters related to our application. The first letter is received from Suffolk County Soil and Water Conservation District and it stated received to this Board November 13, 2017 and the take away from that correspondence is as follows: they make three essential observations. The first is that the bluff is stable which we agree with. The second is that the vegetation is well established on the bluff which is evident in the aerial photographs before'you and the third observation is the home is already fitted with the appropriate gutters and leaders leading to dry wells. The Soil Conservation District goes on to make four essential findings in their recommendations and the first is that there should be a limitation of heavy machinery no closer than twenty five feet from the top of the bluff. I can assure this Board under regardless of the alternative selected hopefully we hope it's our preferred alternative there is no construction limitations in (inaudible) off the area more than 25 feet from the top of the bluff for construction activities. We think that line could be more like 50 feet easily even in the preferred alternative because there's sufficient room. It also speaks about the heavy machinery itself. We would use a back hoe essentially to be the heavy machinery used. Then the third part is that they're recommending that we discontinue the sprinkler heads which are located at the top of the bluff. We think that's entirely reasonable. It's a thoughtful recommendation and we are more than happy to comply and you may place that as a condition of variance if you so incline to grant the variance. And then they are also in support of the dry well that's been added to the plan to handle the decanting of the pool. The next agency letter received from Mark Terry 401 January 18, 2018 Regular Meeting LWRP Coordinator declaring that or making a judgment that is inconsistent with the LWRP. The policy chosen is interesting in that it speaks to minimize the losses of human life and structures. When you think of that within that sense there is no threat to human life or other structures as a result of this pool so we respectfully disagree with the premise that the proposed pool creates a threat to human life and structures. The structures that exist on the property being the house is landward of where the pool is and we can foresee no threat to the inhabitants of the house if the pool is constructed. To back that up they speak to avoiding (inaudible) structures and maximize the distance from the coastal erosion hazard line. In a coastal erosion hazard area there is no setback from statutoral standpoint. There is only a policy that says yeah you should try to maximize your distance. Here we're talking 235 feet from the coastal erosion hazard area line which would be in greatly exceeding the typical setbacks from that line that we encounter up and down properties that front the- Long Island Sound. This property is particularly deep. It is particularly well suited for this use because the condition of the bluff is quite stable and there are no erosion type issues relating to this proposal. We do not see any future risk of property damage from erosion as a result of this pool and the storm surge aspects of it there's no evidence that there is any threat of that being so distant from the coastal erosion hazard area. I will note that we are in agreement with the memo from the LWRP coordinator in that the bluff is decidedly stable. The third agency letter we received is called is a letter of non-jurisdiction from the NYS D.E.C. That's issued because we're landward of the top of the bluff which defines their jurisdiction. However, the inserted into the letter is a recommendation that we create a work area no more than 15 to 20 feet surrounding the pool which is something easily accomplished in the is application'. There is more than sufficient room to construct the pool. I don't believe you have that in your application. MEMBER DANTES : Had there been any architectural sections done or anything that shows because the pool itself looks like it's below, there's like a sloping where that staircase is there's a slope and the pool is below the slope: I'm trying to figure out now if the proposed patio if they're going to have to dig the slope out or put a retaining wall in to get that patio in that. I got more, the other one I have is it looks like the back corner of the pool starts at elevation 138 and then slopes down to elevation 137 then elevation 136 and it looks like the remaining pool and patio is at 136 so the question is are you planning on raising the pool up to 138 or are you planning on digging a retaining wall in the back corner and bringing the pool down to 136? BRUCE ANDERSON : We're going to keep the pool at 136 so that it is a true in-ground pool and we'll have to grade in to that slope. We're trying to keep it away from that slope obviously but we're going to have to do that and there will have to be an approximate three to four foot retaining wall on that corner. 41L January 18, 2018 Regular Meeting MEMBER DANTES : Then the other question is if you are able to turn the pool so it faces east west instead of north south and you would be able to get an over 80 foot setback from the top of the bluff? BRUCE ANDERSON : No our setback was calculated at 75 feet was our estimate. MEMBER PLANAMENTO : Your estimate is based on I guess this fourth BRUCE ANDERSON : It's quite scalable, you know if you went to the property I don't know who went but you will notice that you have a house, the house was built on a flat surface. There's-a series of steps,you come about fifteen, sixteen, seventeen feet off the base of the house you'll see on the aerial, you'll see on the survey that the series of these landscaped steps so the slope drops down four feet from the elevation let's call it the first floor and surrounding fronting grade down a slope to the remainder of the back yard is flat till you get to, top of the bluff so our thought was we didn't really want to get too close to the house, we didn't want to dig into that grade too much. We thought it was bad design. We thought it would be excessive disturbance to the property and the.only benefit would be just to pick up a few extra feet from a bluff setback from a bluff we are already safe and stable and a construction project that is we think more than reasonably safe in terms of protecting that bluff. Part of that you know because of the contours we argue that our difficulty is not self-created due to those site conditions that is the elevation at the house, the distance between that fronting grade and th'e top of the bluff. So, on balance we feel that the benefit to the applicant if the variance was granted would outweigh the detriment to the health, safety and welfare of the,community here to benefit to the applicant is to construct a pool between the house and the bluff just as all neighboring properties have done and we submit there is no detriment to the health, safety and welfare of the community. MEMBER DANTES : Can we talk about the pergola that's also on the property. BRUCE ANDERSON : The pergola that is located about approximately 30 feet from the top of the bluff we intend to relocate to 116 feet from the top of the bluff to make it comply and that is depicted on the survey. MEMBER PLANAMENTO : So Bruce if you can clarify the location of the pergola/gazebo will be moved from the bluff and on the survey where it's labeled gazebo will be the location? BRUCE ANDERSON : That's correct. MEMBER PLANAMENTO : So was there any discussion or thought because under the existing proposed plan you're going to have to cut in to that well to keep it at that 136 1 think you're going to have to cut in to that like secondary bluff. Was there any discussion or thought to 42 January 18, 2018 Regular Meeting move the pool to the west side of the property where it's more level I think it's at 136 where the gazebo is proposed? BRUCE ANDERSON : Yes. The reasoning is that A) if you put it there you would put the pool in the shade to the property next door so to then resolve that you would have to you would likely cut down the trees along that side and if you did that you are it's just not a nice thing to do for the neighbors. Right now if you look at these properties are well screened on both side yards and our intention here is to keep it well screened because it's beneficial to the neighborhood to maintain that privacy vegetation. So we didn't MEMBER ACAMPORA : What about having you have to have a fence around a pool? BRUCE ANDERSON : We intend on having a fence. MEMBER ACAMPORA : Okay so it would just be around the pool? BRUCE ANDERSON : That's correct. That's indicated on the survey. So we really don't want to cut down any trees to be fair about it. MEMBER DANTES Also the neighboring properties are at a higher elevation than your applicant's right? BRUCE ANDERSON : I believe the one to the west is. I'm not sure the one to the east is of similar MEMBER DANTES : I mean the one from the east the west. BRUCE ANDERSON : The west yes. MEMBER DANTES : So the vegetation over there does help with the storm water runoff from the property correct? BRUCE ANDERSON We really don't have any storm water runoff problems here but that is theoretically true. MEMBER DANTES In your research have you found any other bluff setbacks that we've granted? BRUCE ANDERSON : No I did not. MEMBER DANTES : There is one that's in East Marion. It's a fairly new bluff setback and we haven't been doing them for very long on this Board so there's only one in East Marion similar BRUCE ANDERSON : Oh I did one in Orient as well. 43 January 18, 2018 Regular Meeting MEMBER DANTES : For a bluff setback? BRUCE ANDERSON : Yep. MEMBER DANTES : Maybe it was in Orient then maybe that's the one I'm thinking of. There's one in East Marion and if you can submit copies of those decisions. BRUCE ANDERSON : I thought I was. Yeah I have to think of the fellas name. It was out off on Greenway you know when you come in Greenway and whatever that street that runs to the Greenway near Orient Point there's a bunch of those properties that are up on the Sound I believe we did one in there. The East Marion one that you speak of I'm not immediately MEMBER DANTES : No you didn't do it Dave Chicanowitz did it but I do know it's a bluff setback that we've granted and there's one on Nassau Point that we granted as well. BRUCE ANDERSON : I'm going to have to hunt those down. I'd be happy to research and find those. I'll think of the guy's name I just can't think of it at the moment. MEMBER DANTES : I think precedent going forward we're going to have the precedent bluff setbacks on the sound and bluff setbacks on the bay would be a separate precedent. BRUCE ANDERSON : Well one thing I hope everyone takes notice of is that if you go to Southold and you go to points east okay all the way out to Orient what you're going to find is the coastal erosion hazard lines they're supposed to be drawn 25 feet landward of the fronting hazard. In this case it appears to me that the natural I'm sorry 25 feet landward of what they call the natural protective feature and that's in your code. By the way every coastal erosion hazard code regardless of what town you go to because they're all overseen by NYS D.E.C. and approved by its commissioner so the line is usually 25 feet landward of the fronting natural feature. It appears to me that the state made a determination that the fronting natural protective feature is actually the beach here because if you look at the location of the coastal erosion hazard line it is about 25 feet landward of the landward edge of the beach meaning that the state for whatever reason isn't looking at this bluff as really a bluff. It's more of a hill to them. In other words it's not as steep as other places. Now when you go to anywhere let's say along the eastern side of Nassau Point you have a very steep bluff, usually it's anchored by a bulkhead. Steep bluffs line 25 feet landward of the top of that bluff and that defines your hazard. If you go along the sound you'll find that as well so if we're the Board should take notice that this is a very easily distinguishable case in that it is so distant from the actual designated hazard and I also put in the velocity zones from FEMA to reinforce that because FEMA is doing the same thing. A VE zone is a zone that is subject to theoretical 100 year direct wave impact and so we're 215 feet or there abouts landward of that as well. So this is a little different than what you see elsewhere in town. January 18, 2018 Regular Meeting MEMBER DANTES : Anything else? MEMBER PLANAMENTO : Yeah just a little bit of a clarification, the packet that you handed out today on page 4 illustrated an alternative pool location. Would you or your client accept that location as alternative relief? BRUCE ANDERSON : Yes we would. That's why I put it in there. I don't think it's not our preferred plan but sometimes the Board will ask for alternative relief. I did discuss it with the client. We'd have to shift the stairs over obviously and the trade-off is I guess we would have more of the pool within 100 feet although the setback would be greater whereas if you run it north south most of the land between the top of the bluff and the house is unencumbered so it's a balancing test that I expect this Board will make. MEMBER DANTES : So we're going to wait for you to submit the find those couple of variances that we granted for bluff setbacks and submit those. BRUCE ANDERSON : I can have those within certainly by Monday I think. MEMBER DANTES I'll adjourn the meeting till the February 1St meeting at which time (inaudible) information we'll close the hearing and reserve decision to a later date. BRUCE ANDERSON : Is there a need for me to appear February 1St? MEMBER DANTES : I don't anticipate taking testimony on that day but I'm not going to counsel you. BRUCE ANDERSON : Okay then I will be here. MEMBER DANTES : Seeing no one else in the audience there is no need to request for the record there's no need to request is there anyone else in the audience who wants to speak, motion to adjourn the hearing to February 1St? MEMBER PLANAMENTO : Second. MEMBER DANTES : All in favor? MEMBER ACAMPORA : Aye. MEMBER PLANAMENTO : Aye. MEMBER DANTES : Aye. (See Minutes for Resolution) 45 January 18, 2018 Regular Meeting HEARING #7125—860 BAYVIEW DRIVE, LLC - MEMBER DANTES : Next application 860 Bayview Drive, LLC #7125 request for variances under Article III Section 280-15 and the Building Inspector's October 10, 2017 Amended October 27, 2017 Notice of Disapproval based on an application for a permit to construct an accessory outdoor kitchen and an accessory swimming pool at 1) accessory outdoor kitchen located less than the code required minimum front yard setback of 40 feet, 2) accessory swimming pool located in other than the code required rear yard located at 860 Bayview Drive (adj. to Spring Pond) East Marion. Is someone here to represent the applicant? MIKE KIMACK : The only one here, Michael Kimack on behalf of the applicant. A little bit of history on this particular proposal. At onetime there were two separate lots here. There were two separate LLC's and I didn't submit that to you, I just wanted to show you (inaudible away from mic) this was two separate lots MEMBER DANTES : Now he has all three? MIKE KIMACK : They were always separate. He bought it under two LLC's and he I'll go back two lots MEMBER PLANAMENTO : So Eric why did you say three? MEMBER DANTES : Lot 24 and lot 23 were one lot? MIKE KIMACK : They're one lot, 24 and 23 was one lot and 20 and 21 or 21 and 22 are one lot and if you look at the maps that's how it was. He had it separate, he originally wanted to move the line to get the pool in. we talked to the Building Department and it was really a tough call and he said look Mike I'm going to be living there so why don't we just merge the two lots and that's what I did. It used to be 7 and 10 now it's 10 and 21. So the lots are merged into one and obviously when we did that it created two fronts. He always wanted the pool etc. like that now one is the issue for the front and they call it the kitchen. This is an interesting thing I was looking at it because the way the land runs from the front from the waters back going it's about a five foot differential in pitch. Hopefully if you went out there and saw my stakes basically they're there and there's a retaining wall that goes back the kitchen actually and it's in place is going to be below grade so I'm going I mean the retaining wall is on grade because the kitchen is down about at that particular point it's about four, five foot high so the kitchen itself but the Building Department looked at it and said we're going to treat the kitchen as an accessory. I didn't argue the point because I knew I was coming to you for the front yard for the pool anyway but it struck me as an intellectual curiosity as to if it's below grade is it still because if you're on grade basically you don't need a permit but they did treat the kitchen they looked at the kitchen not from a perspective that it would be below grade but simply because it was it 46 January 18, 2018 Regular Meeting didn't meet the required front yard setback. We didn't argue the point simply because we were coming here anyway for the front yard pool which was an inevitability, but I did want to point out to you from an intellectual point of view that the kitchen itself the appliances are below grade you know the retaining wall comes across the back and down again. It's just the way it is. The pool basically is obviously a part of his front yard because you can see where the break point is from the side yard over there going down. So a part of it maybe about a third of it is front yard and about two thirds its back yard and obviously that fell into the request for zoning. I thought it would be helpful if I gave you the background that this started out his good intentions were to have two separate lots and build a separate home and maybe move it so he can be at the pool and the more we looked at it we realized the land simply could not support that you know the two separate situations so I went to the merger process for him and then after we did that we came back in with another design which is this and he you know (inaudible) extended accordingly. That's the background to it. He has actually one of the bigger lots now in that area. MEMBER DANTES : How did you merge it Mike? Did you go through the planning process or you just put the lots in the same name and merged by? MIKE KIMACK : I put the lots what I did is one was 480 Knolls Circle LLC which was the smaller one the (inaudible) off of Knolls Circle. The other one that he built the house on was 860 Bayview Drive LLC. I merged 480 with 860. MEMBER DANTES : So it merged by operation of law? MIKE KIMACK : By operation of law and I filed it and recorded it with the County the whole bit and they issued a new tax map number. MEMBER PLANAMENTO : Question just regarding green cards and notices, the reason why when I was looking up the Suffolk County tax map as provided by Kim initially it was just this yellow area and then the actual owner was noticed don't these other people now need to all be noticed? MIKE KIMACK : They were all noticed. MEMBER PLANAMENTO : According to the note I was provided the notices were sent to five families or five property owners including the applicant. MIKE KIMACK : No I upped it. I increased it cause when I looked at it BOARD SECRETARY : That's right you came in and you told us that yes. MEMBER PLANAMENTO : So do you want to show me which other properties were noticed? 471 January 18, 2048 Regular Meeting MIKE KIMACK : I took it and when I looked at it I realized it didn't cover the other side because they only looked at it as 860 they didn't look at it as 480 and I added the extra ones to it basically. I added this property here and this property here and this property here. MEMBER PLANAMENTO : So this double lot is one whole lot. MIKE KIMACK : Is one homeowner. Then I added this, I added this because I recognized that they missed the 860 because they thought they MEMBER PLANAMENTO : Yeah that's why I couldn't when I originally saw this and I got to the property MIKE KIMACK : My responsibility is also to look over they look over my shoulder I look over everyone's shoulder. BOARD SECRETARY : So we gave Mike five and he gave us seven. MIKE KIMACK : Because one was (inaudible) I gave you extra basically. MEMBER PLANAMENTO : It should have been eight though. Oh no because this is owned by the applicant so it goes back to seven. MIKE KIMACK : I re-corrected it and obviously he didn't update the map I checked back with the office (inaudible) and it's double posted, both on Knolls Circle and on 860. 1 always love it when there's a telephone pole. This time of the year I hate to go out there and chop through the frost and everything else like that. So that's the background. The way it's cut back if you notice the way that one corner is cut back over there by the pool on the stakes, we did that in order to preserve the trees. All of this is setback so that that retaining wall off of Knolls Circle for the kitchen and for the pool and for the patio is setback far enough at least ten feet from each one of those trees so the roots won't be disturbed. So none of those big trees along Knolls Circle it was intentionally we cut it short in order to preserve them. MEMBER ACAMPORA : Are they still going to keep that gravel driveway? MIKE KIMACK : He's doing a gravel the one on top is going to be gravel driveway yes on both sides. As a matter of fact what happened MEMBER ACAMPORA : Where the boat is now. MIKE KIMACK : Where the boat is now that's the gravel and the new one will be gravel too. As a matter of fact that issue was raised with D.E.C. because I had to do a variance with them because I was within 75 feet of the bulkhead and they asked the question whether the driveway was going to be gravel because they were looking at the impervious coverage. It had 48 January 18, 2018 Regular Meeting been updated and they also asked about the septic but the septic is already Suffolk County approved etc. like that, it's behind the house so it wasn't within their purview and basically we got rid of the right of way up there and joined everything basically. It's a very odd piece of property but that's the way these things were constructed when that development was put together. MEMBER ACAMPORA : How is the pool going to be totally in-ground or some of it MIKE KIMACK : Totally in-ground. The front level when you looked at it with the patio and the raised (inaudible) that ground level right there the pool comes right back from there so it starts even with the ground which is about an eight foot elevation at that point. Realizing that the six foot elevation line is the erosion line is, we got that done that was corrected because we want to make sure that we weren't in that particular line so the six foot line is the flood zone line. So it starts in the beginning, it goes back even and by the time it gets back to the back wall it's probably about this high maybe 4 % , 5 feet high coming around and that's why the kitchen would be here but they looked at it they didn't look at it from a height perspective they just looked at it as a kitchen and I looked at it and I began to think it through and I said oh well I'll explain it to the Board when we get there. MEMBER ACAMPORA : And the patio will go all the way to the side? MIKE KIMACK : Ground level all the way around exactly and we have if you look at it on both sides of the pool there's French drains so they'll be dry wells under. We didn't want to put the drywells down further in to the we wanted to keep everything up towards the house section over there and not come any closer. MEMBER DANTES : Also Mike you have an LWRP, the kitchen is exempt and the pool is consistent from the LWRP. MIKE KIMACK : You know what, I knew that I could explain the kitchen when I got here. When they wrote it up I said oh Mike don't go back and try to argue it at this point. Take it forward in terms of what the kitchen is and I questioned it whether it was or was not, they made the choice but since we were coming for the pool anyway I figured okay we'll do the whole thing at one time. BOARD SECRETARY : Did you want this back? MIKE KIMACK : You know what, you could hold on to it if it makes sense. If it's a little bit more understandable for you in the file basically. I didn't put it in with the original application because we had gone past it. I knew that I explained that I would explain it was two lots and we merged the two. It does make a much easier piece of property to do what the owner wants to 49 January 18, 2018 Regular Meeting do. He really did a nice job I mean the elevated deck that he did there with the chimney, it's a beautiful little spot. MEMBER ACAMPORA : He must have a big family. MIKE KIMACK : Yeah he's a nice guy and I'm not quite sure I think he's in some level of construction business basically so he has done a nice job with the house. He's fixed it up rather nicely and he'll do a nice job with this area too. That little garage on top did not fall into your purview simply because he met all the setbacks: MEMBER DANTES : Anymore questions Nick? MEMBER PLANAMENTO : No I think he clarified everything by explaining the history of the two original lots. MIKE KIMACK : I thought that was the only real way to explain what was going on here. MEMBER DANTES : I have a question for you I guess I'm looking at the property card. It looks like Johnson owned both lots in common ownership. MIKE KIMACK : No we did a separate there was Johnson had it was Johnson but it was wife and husband separate we did a single and separate search to make sure and it wasn't because before I even started the process Eric I wanted to make sure that I was working with single and separate. We did the single and separate search and found that it had complied all the way through. That was when he was thinking of moving the line in order to accommodate the pool but still preserve the other lot for a house which could be done because it had public water it could have its own septic etc. like that but when we looked at it ultimately the Building Department was giving us push back saying come on because it ended up with like a four or five thousand square foot piece of property that would have been left if we cut it back so he finally made the decision he said look Mike I'm going to be there for a while. Let me rethink myself and he said merge the lots and I'll come in with a plan to extend the pool and everything so. MEMBER PLANAMENTO : Mike do you want to speak for a moment about the two prior ZBA decisions that were awarded to this property? You included in the application for the wooden deck, it's a ZBA decision 5788 in 2006 and then I guess for the complete renovation to the existing house it's described as new dwelling ZBA decision 6829 in 2015. MEMBER DANTES : I think that's a bulkhead setback and that law doesn't that's not our jurisdiction anymore. MIKE KIMACK : Yeah that back then the 75 feet touched the house at that particular point that's why it came back but that's no longer the issue anymore. You took that one away. You used to so January 18, 2018 Regular Meeting have the same jurisdiction as Trustees. Trustees still have 75 feet from the bulkhead but it was taken out of 280 which was referencing 275 which was the Trustees. MEMBER DANTES : Basically they're trying to expedite it so that there was only one review instead of two reviews of bulkhead setback. MIKE KIMACK : And that's why when we did the deck when I did the deck for him about three years ago we didn't need Zoning because it was no longer it was simply the setback you know normally property setback but not a setback for the bulkhead. As much as I think I know about this I always have to stop and go back to the code and re-read again because every project offers you a different perspective on this stuff. MEMBER PLANAMENTO : Actually the 6829 is for the shed. MIKE KIMACK : On the back section of the (inaudible) and that was relocated because originally it was I remembered the recommendation was it was too close to the septic and he relocated it away from the septic with enough setback from the back line in order to be and that's shown in the exact location that it is right now on the drawing but the recommendation was to relocate the shed which we did. Originally yes we asked for the deck basically the requirement was we came in with a sixteen foot wide deck and they asked if we could relieve it back further and I took it to fourteen. BOARD SECRETARY : You requested 57 and I guess there was a relief for 59. MIKE KIMACK : Yeah basically we cut it back. So what we're doing with the pool now the pool is exactly the same distance we're not any closer than what had been previously approved. Number one we couldn't be because you know that six foot line you know the flood line is not that far down the hill. MEMBER DANTES : Anything else Nick? MEMBER PLANAMENTO : No I don't think so. MIKE KIMACK : It's a little complicated. It had a history to it there's no question but I think we've cleaned a lot of it up and hopefully you know you'll be in accord with it. MEMBER DANTES : I'm going to make a motion to close the hearing adjourn decision to a later date. MEMBER PLANAMENTO : Reserve decision to a later date. MEMBER DANTES : Is there a second? 5:1 January 18, 2018 Regular Meeting MEMBER PLANAMENTO : Second. MEMBER DANTES : All in favor? MEMBER ACAMPORA : Aye. MEMBER PLANAMENTO : Aye. MEMBER DANTES : Aye. (See Minutes for Resolution) January 18, 2018 Regular Meeting CERTIFICATION I Elizabeth Sakarellos, certify that the foregoing transcript of tape recorded Public Hearings was prepared using required electronic transcription equipment and is a true and accurate record of Hearings. Signature Elizabeth Sakarellos DATE : January 24, 2018 53