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HomeMy WebLinkAbout2669 · ' O O Legal Notice of Hearings -3- Hearings scheduled for February 28, 1980 north by Town of Southold; east by Congressional Christian Churches; south by Greenwood Road; west by Barmache and Town of Southold. County Tax Map No. 1000-012-001-013. 9:15 P,M. Main Road, Cutcho~uef New Yorkf Ordlnance~ Article II~o Se~tio~ to constr~ct addlti~n ~nr~% setback. Location of property: Application of JAMES and MARY McGUIRE, 2098~ and 100-31 for permission 20985 Main Road, Cutchogue; south by bounded north by Adel and Sheehan; east by Sheehan; Stepnoski and Bagenski~ west ~¥ ~aln Road IS.R. 25). Tax Map No, !000,108-003-13.6. . . County Dated: February 8, 1980. BY oRDER OF THE SOUTHOLD TOWN BOARD OF APPEALS ZZZZiZiZZZiZZZZiiZZZZiZZiZZZZZiZiiZZiZZiiZZZiiiiiiiiZiiiiiiiii Instructions to newspapers: (Delivered 2/8/80 3:45 P.M.) Please publish once, commencing February 14, 1980 and.forward eight (8) affidavits of publication before February 21, 1980. Please forward at least one of the eight affidavits before February 18, 1980 for review, to: Board of Appeals, Main Road, Southold, New York 11971. Copies Mailed 2/11/80 to applicant(s) and/or agent(s): Stanley & Marta Wiepzynski, RR#3, Box 414, Califon, NJ 07830 Wickham, Wickham & Bressler, Box 1424, Main Road, Mattituck, NY account of Ralph H. Dickinson Steve Tsontakis, Middle Road, Mattituck, NY 11952 · Mattituck Free Library, Main Road, Mattituck, NY 11952' Rudolph H. Bruer, Esq., Main Road, Southold, NY 11971 account oi Dwight W. Weist, 160 East 48th St, NY, NY Richard F. Lark, Esq. Box 973, Main Road, Cutchogue, NY 11935 account of Fishers Island Development Corp. James and Mary McGuire, 20985 Main Road, Cutchogue, NY 11935 LEGAL NOTICE OF HEARINGS Pursuant to Section 267 of Town Law and the Provisions oithe Amended Building Zone Ordinance of the Town of Southold, New York, public hearings will be held by the Board of Appeals at Town Hall, Main Road, Southold, New York on Thursday, Febru- ary 28, 1980 on the following: 7:30 P.M. Application of STANLEY & MARTA WIEP- ZYNSKi, Box 414, West Val- ley Brook Road, Califon, New Jersey 07830, for a Variance to the Zoning Ordinance, Article IH, Section 100-3! for approval of the insufficient width of two./ lots to be established within a subdivision. Location of pro- petty: 11890 Sou'ndview Ave- nue, Southold, New York; bounded north by Jennings Estate; east by .lennings E- state; south by Hahn; west by Soundview Avenue. County Tax Map Item No. (,part of) )1000-12-001-001. 9:00 P.M. Application of FISHERS ISLAND DEVELOP-...' MENT CORP,, Fishers Island, New York 06390, for a Vari- ence to the Zoning Ordin- ance, Article VII, Section 100-71, Article XlV, Section 100-1i4, for approval of insuf- ficient area and width of parcels to be established with- in a subdivision. Location of prope.~ty: Greenwood Road; Fishers Island, New York; boundod north by Town of Southold; east by Congre- gational Christian Churches; south by Greenwood Road; west by Barmache and Town of Southold. County Tax Map blo. 1000-012-001-013. 9:15 P.M. Application_of. JAMES and MARY McOU1RI~/ 20985 Main RoadI Cutcbo~ue. **New ¥ork~ for a Variance to the Zoning ordinance, Article HI, Section 100-30 and 100-31 for permission to construct addition (portico) with an in- sufficient frontyard setback. Location of property: 20985 Main Road, Cutchogue; bounded north by Adel and '-Sheehan; east by Sheehan; south by Stepnoski and Bagen- ski; west by Main Road (S.R. 25). County Tax Map No. 1000-108-003-13.6. Dated: F~brqary 8 1980. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS 1T 2/14/80 flO5~ CCRJ~TY Of: SUFFOLK STATE OF N~'W YORK Patricia Wood, being duly sworn, says that she is the Editor, of THE LONG ISLAND TRAVELER-WATCHMAN, ~ public newspaper printed at Southold, in Suffolk County; ;nd that the notice of which the annexed is a printed copy, fas been published in said Long Island Traveler-Watch- man once each week for ............. /. .......................... weeks ~uccessively, commencing On the ..f..~.. ..................... Sworn to before me this .../.~.. ............ do',' o, ............... .- .................. ANTOINETTE BERKOSKI NOTARY pUX'LIC. State of New York Res~d :~ in Suflnik County No. 52-4500796 19~ Commission Expires March 30, Page 15A Map No. 1000-054-006-001. 7:45 P.M. Application of RALPH H. DICKINSON, c-o Wickham, Wickham & Bressler, P.C., Box 1424, Main Road, Mattituck, New York for a Variance to the Zoning Ordinance, Article III, Section 100-31, for permission to construct with an insufficient frontyard setback. Location of property: Right-of-way ~ off Great Peconic Bay Boulevard, Laurel; bounded north by Graham and Heeh; east by Arthur; south by Great Peceaic Bay; west by Mc- Dowell. County Tax Map No. 1000-128-006-005. 8:00 P.M. Application of MATTITUCK FREiE LIBRARY, Main Road, Mattituck, New York for a Variance to the Zoning Or- dinance, Article IH, Section 100-30 for permission to construct addition with an insufficient sideyard setback, and Article XI, Section 100- l12A for permission to waive/ off-street-parking requirements. Location of property: 13900 Main Road, Mattituck; bounded north by Main Road (S.R. 25), east by Sacred Heart Roman Catholic Church, south by Winiaz and Reeve, west by Reeve, and Reeve Lumber & Woed- working Co. Inc. County Tax Map No. I000-114-011-002. 8:15 P.M. Application of MATTITUCK FREE LIBRARY, Main Road~ Mattituck, New York for a Specia~ Exception to the Zoning Ordinance, Article III, Section 100-30B to use proposed addition for library use. Location of property: 13900 Main Road, Mattituck; bounded north by Main Road; east by Sacred Heart Roman Catholic Church; south by Winiaz and Reeve; west by Reeve and Reeve Lumber & Woodworking Co. County Tax Map No. 1000-114-011-002. 8:30 P.M. Application of DWIGHT W. WEIST, 160 East~,, 48th Street; New York, New York for a Variance to the Zoning Ordinance, Article III, Section 100-32 for permission to construct accessory structure in frontyard area. Location of property: Right- of-way off Paradise Point Read, Southnid; bounded north by Roseman; east by Southold Bay; south by Callis; west by Krupski. County Tax Map No. 1000-814103-27.2. 8:45 P.M. Application of FISHERS ISLAND DEVELOPMENT CORP., Fishers Island, New York (portico) with an insufficient frontyard setback. Location of property: 20985 Main Road, Cutchogue; bounded north by Adel and Sheehan; east by Sheehan; south by Stepnnski and Bagenski; west by Main Road (S.R. 25). County Tax Map No. 1000-108-003-13.6. Dated: February 8, 1980. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS 1TF14-3387 /y Sworn, jUFFOLK ,rt, in said , a printed k~y Times ... weeks 61y oommencing on ~e ~Oll~'~.¢t~.'l;l'~ ............ 06390, for a Variance to the Zoning Ordinance, Article VII, Section 100-71 for approval of insufficient area, width, .~fY-b-:~ .... .. ~. ....................... frontyard and sideyards of parcel to be established within a subdivision. Location of property: Fox Lane, Fishers Island, New York; bounded north by Gada; east by Fox Lane; south by Town of Southold; west by Long Island Sound. County Tax Map Item/~ No. (part of) 1000-12-001-001. 9:00 P.M. APPlication of FISHERS ISLAND DEVELOPMENT CORP., Fishers Island, New York 0~90, for a Variance to the Zoning Ordinance, Article VII, Section 100-71, Article XIV, Section 100-114, for approval of insufficient area and width of parcels to be established within a subdivision. Laeation of property: Greenwood Road, Fishers Island, New York; bounded north by Town of Southold; east by Congregational Christian Churches; south by t;reen- wood Road; west by Bar- macbe and Town of Southold. County Tax Map No. 1000-012- 001-013. 9:15 P.M. Application of JAMES and MARY McGUIRE, 20985 Main Road, ! Cutcbegue, New York, for a ~ Variance to the Zoning Or-| dinance, Article III, Section ] 100-30 and 100-31 for per- mission to construct addition before me this . ./.'.". ...... .(.~.-~ ~ ......... .... ~ ........ . .... .... .... ' O FOltM NO. 3 TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN CLERK'S OFFICE SOUTHOLD, N. Y. NOTICE OF DISAPPROVAL ,~c~.~..~..~..-z~..~.,'.~.....~..~,~....: ........................ ...O.~.~,~z..a.~ ~'..~.... ~.,.~., ....................... PLEASE TAKE NOTICE that your application dated ....,F.~,~'/~.f.~/,~....,~, ........ , 19.~ for permit to constru~.CO...~...gt tile premises ,ocoted ..~.~.~ g..~.u.~.,....~.:~: .......... Map .ZO~O/.. ZO. ~ ....... Block .......... ~.~ ......................... Lot ....... ~..~:.~ ....................... is returned herewith and disapproved on the follow;nB grounds .~O.~..~....~ ......... ..~J~m ....... ~s ........ z~.~.~..a z.~~ ...... ~o...~......~~ ...... Bu~ g Inspector O TOWN OF $OUTHOLD, NEW YORK APPEAL FROM DECISION OF BUILDING INSPECTOR APPEAL NO. o~ ~ ~/~ DATE TO THE ZONING BOARD OF APPEALS, TOWN OF SOUTHOLD, N. Y. 1, (We)...?..q/~...~.~...?...~....~..?..~.......~...~..~...~..L.C...~.....of .....~....O..~.~.~......~....o...,:..~.......~...~.. ............................... Nome of Appellor~t Street and Number ......................... ~J..~...J[..JC..i.~....~...~....~. ...................................... .~/....~....~.....~.~...C..I.~..HEREBY APPEAL TO Municipality State THE ZONING BOARD OF APPEALS FROM THE DECISION OF THE BUILDING INSPECTOR ON APPLICATION FOR PERMIT NO ..................................... DATED ...................................................... WHEREBY THE BUILDING INSPECTOR DENIED TO ( ) ( ) ( ) Name of Applicant for permit of Street and Number Municipality State PERMIT TO USE PERMIT FOR OCCUPANCY 1. LOCATION OF THE PROPERTY ~:~.O..~.~..~.......~...~;:k~....l~....jl~..~.. .......................................... ~ ........ Street Use District on Zoning Mop .... /. ~.~.~....:.. ~. ~.~....-....~.2..~...~./.,,~..:..&.. ................. Mop No. Lot No. 2. PROVISION (S) OF THE ZONING ORDINANCE APPEALED (Indicate the Article Section, Sub- section and Paragraph of the Zoning Ordinance by number. Do not quote the Ordinance.) fiR1~ ~ Se~ ioo ~ o ~- . L ~ ) 3. TYPE OF APPEAL Appeal is made herewith for ( ~)~'A VARIANCE to the Zoning Ordinance or Zoning Map ( ) A VARIANCE due to lack of access (State of New York Town Law Chap. 62 Cons. Laws Art. 16 Sec. 280A Subsection 3 4. PREVIOUS APPEAL A previous appeal (has)~ been made with respect to this decision of the Building Inspector or with respect to this property. Such appeal was ( ) request for a special permit ( ) request for a variance and was made in Appeal No ................................. Dated ...................................................................... REASON FOR APPEAL ( ) A Variance to Section 280A Subsection 3 (~' A Variance to the Zoning Ordinance ( ) for the reason that ~ ~ ~-~ is requested Form ZBI (Continue on other side) REASON FOR APPEAL O O Continued 1. STRICT APPLICATION OF THE ORDINANCE would produce practical difficulties or unneces- 2. The hardship created is UNIQUE and is not shared by all properties alike in the vicinity of this property and in this use district because ~ e 0u-e JF he ly immediate 3. The Variance would observe the spirit of the Ordinance and WOULD NOT CHANGE THE CHARACTER OF THE DISTRICT because ~ /bce_, ~ ~ STATE OF NEW YORK ) ) ss COUNTY oF'.,,)~~ ) Signoture FORM NO. 1 TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN HALL SOUTHOLD, N.Y. 11971 TEL.: 765-1803 Examined ................. 19... Approved ................ ,19... Permit No ............ Disapproved a/c ..................................... Application No .................. (Building Inspector) APPLICATION FOR BUILDING PERMIT INSTRUCTIONS a. This application must be completely filled in by typewriter or in ink and submitted in triplicate to the Building Inspector, with 3 sets of plans, accurate plot plan. to scale. Fee according to schedule. b. Plot plan showing location of lot and of buildings on premises, relationship to adjoining premises or public streets or areas, and giving a detailed description of layout of property must be drawn on the diagram which is part of this appli- cation. c. The work covered by this appli~cation may not be commenced before issuance of Building Permit. d. Upon apprOVal of this application, the Building Inspector will issue a Building Permit to the applicant. Such permit shall be kept on the premises available for inspection throughout the work. e. No building shall be occupied or used in whole or in part for any purpose whatever until a Certificate of Occupancy shall have been granted by the Building Inspector. APPLICATION IS HEREBY MADE to the Building Department for the issuance of a Building Permit pursuant to the Building Zone Ordinance of the Town of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations, for the construction of buildings, additions or alterations, or for removal or demolition, as herein described. The applicant agrees to comply with all applicable laws, ordinances, building code, housing code, and regulations, and to admit authorized inspectors on premises and in buildings for necessary inspections. (Signature df applicant, or name, if a corporation.) (Mailing address of applicant) State whether applicant ssee, agent, architect, engineer, general contractor, electrician, plumber or builder. · ' ' (as on the tax roll or latest deed) ' If applicant is a corporation, signature of duly authorized officer. (Name and title of corporate officer) Plumber's License No ......................... Electrician's License No...~./..~..~....~.~./(.~.CT~--~"- Other Trade s License No ...................... 1. Location of land on which proposed work will be done .................................................. House Number Street Hamlet Subdivision ..................................... Filed Map No ..... :..' ....... Lot ......... 'r ..... (Name) State existing use and occupancy of premises and intended use and occupancy of prgposed construction: a. Existing use and occupancy . b. Intended use and occupancy . ~.,~..,/~.~..~,'q'..,~/.~~..~~' .~.~,. ........... 3. Nature of work (check which applicabCNew Building. ......... Addition .O ...... Alteration .......... Repair .............. Removal .............. Demolition .............. Other Work ............. ~ ~ "~ (Description) 4. Estimated Cost ,~'0 ~ ~ ~t- Fee (to be paid on filing this application) 5. If dwelling, number of dwelling units ............... Number of dwelling units on each floor ................ If garage, number of cars ................................. ....................................... d. If business, commercial or mixed occupancy, specify nature and extent of enoch type of use ............ Z.Z ....... 7. Dimensions of existing structures, if any: Front .... ~.o. ........ Rear . .~..c) ......... Depth . [ .cl..~ ......... HeiF~ht ............... Number of Stories ................................................. Dimensions of same structure with alterations or additions: Front ...(~.c). ........... Rear...~. 9.' .... Depth... I I .'~ .............. Height ...~.. ~-,~d~.~. ~. ...... Number of Stories.. ~ ...... ,.., ........ 8. DimensiOns of entke new construction: Front ... ~'.o ......... Rear ...~.O .......... Depth . ( .~-. ?O. ..... ; Height . ~ ....... Number of Stories....~. J-Y-~'- .............................................. 9. Size of lot: · · .~.~....~.°.~?.~=~. Rear ......... : ............ Depth ...................... Front 10. Date of Purchase .................... ( ........ Name of Former Ow. uer ............................. 11. Zone or use dmtnct m wkich premises are situated .......... ; .,~ .... /~.~--5...f~x'2/_._-. ............. 12. Does proposed constructlon violate any zoning law, ordinance or regulatlon: ......~f~:_.,~ ....................... 13. Will lot be regraded ............................ Will excess fill be removed from premises: Yes No 14. Name of Owner of premises .................... Address ................... Phone No ................ Name of Architect ........................... Address ................... Phone No ................ Name of Contractor .......................... Address ................... Phone No ................ PLOT DIAGRAM Locate clearly and distinctly all buildings, whether existing or proposed, and. indicate all set-back dimensions from property lines. Give street and block number or description acceding to deed, and show street names and indicate whether interior or comer lot. t~] STATE OF NEW, j~,RK,,,.~ /,,/, ~. COUNTY OF L..~-~.---:'.'.'.'.'.'.'.~..~'./.~.~..,,,'~q/,.-.'' ~'~ ...-, , ...... : .... a~. ...... /.l.. / C . .kM. t4.,.r ~. . . ~e~o~f i~vidual s~gmng contract) above named. being duly sworn, deposes and says that he is the applicant .~He is the ................... .0 .t~./~' .1~- .~. .......................................................... (Contractor, agent, corporate officer, etc.) of said owner or owners, and is duly authorized to perform or have performed the said work and to make and file this application; that all statements contained in this application are true to the best of his knowledge and belief; and that the work will be performed in the manner set forth in the application filed therewith. Sworn to before me this ELIZABKTH ANi'I NEVILLE ~OTARY PUBLIC, State o[ Naw Yorl~ No. 52-~125~50, Suffolk t~rm ~ires March 30. 1 (Signature of applicant) ~5~00' reo= 3.571Acres 350.00 ' Woy .I L and of ""- 135.~5' -" Bagenski ® Areb -- 4. 098 Acres seaoo' ~ rUMENT 990. lOzO. O0' 0 I 1 I I .~V,S,ONS YOUNG & YOUNG OC~.PI, I.gP"4 400 OSTRANDER AVENUE, RIVERHEAD, NEW YORK WOV./2oI974 ALDEN W. YOUNG HOWARD Wi YOUN, MAP PREPARED FOR TOW. O~ SOUTflOLD ~ F~ ~ "~ / / 5UFFOL~ CO., ~. Y. ~aa s~ SCALE: 1,, = 100t ~l 1974 I DATE: APR. JUBTIC " COURT TOWN SOUTHOLD NEW YORK FREDERICK J. TEDESCHI TOWN JUSTICE OFFICE AND COURT LOCATION SOUTHOLD TOWN HALL 53095 MAIN ROAD SOUTHOLD, NEW YORK 11971 (518) 785-1852. 1153 May 28, 1985 Gerard P. Goehringer, Chairman Southold Town Board of Appeals Southold Town Hall Southold NY 11971 RE: PEOPLE V. JAMES AND MARY MC GUIRE Dear Chairman Goehringer, I am in receipt of your letter of May 24, 1985. Please be advised that I authorized no inquiries to be made on my behalf. When I read the letter of Mr. Victor Lessard, wherein he alludes to the same inquiries as you did, I was puzzled by the reference. My recollection, which has been confirmed, was that when the matter last appeared in open Court, Special Prosecutor, Richard F. Lark, made the suggestion that he approach the Zoning Board of Appeals for a clarification of its decision of May 18, 1980. Both Richard Cron, attorney for both Defendants and myself merely acquiesced in Mr. Lark's suggestion. At no time was I under the impression that certain inquiries were to be made on the behalf of the Court. That is the reason why heretofore you have not received any direct communications from this office. Within the above parameters, if I can be of any assistance, please don't hesitate to call upon me. Kindest personal regards. APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, .IR, ROBERT J. DOUGLASS JOSEPH H. SAWICKI Southold Town Board of Appeals MAIN ROAD-STATE ROAD 2S SOUTHOLD, L.I., N.Y. 11cj'71 TELEPHONE (516) 765-1809 May 2~, 985 Justice Frederick Tedeschi Southold Town Justice Court Town Hall Southold, NY 11971 Re:' Matter of James and Mary McGuire ZBA Decision Rendered May 18, 1980 Dear Judge Tedeschi: We recently received a memorandum from Special Richard F. Lark through the Building Department in certain inquiries are being made in your behalf. lk Prosecutor which May we have your written communications directly. Yours very truly, GERARD P. GOEHRINGER CHAIRMAN TOWN OF SOUTHOLD OFFICE OF BUILDING INSPECTOR P.O. BOX 728 TOWN tlALL SOUTHOLD, N.Y. 11971 TEL. 765-1802 April 29, 1985 TO: Z.B.A. FROM: Exec. Admin., Victor Lessard SUBJECT: Mc Guire's Portico Request an interpretation of a a word in Z.B.A. decision on the Portico. Judge Tedeschi would like to clarify the word "goods". OF SOUT OI,r OFFICE OF BUILDING INSPECTOR P.O. BOX 728 TOWN HALL SOUTHOLD, N.Y. 11971 TEL. 765-1802 May 17, 1985 Southold Town Zoning Board of Appeals 53095 Main Road - Town Hall Southold, New York 11971 ATT: Gerard P. Goehringer, Chairman RE: Appeal No. 2669 - James and Mary McGuire Main Road, Cutcho~ue, New York In connection with Appeal No. 2669 (James and Mary McGuire), Southold Town Board of Appeals on March 18, 1980, granted James and Mary McGuire a variance to Article III, Section 100-30 and Section 100-31 of the Zoning ordinance granting them permission to construct a 10 foot portico to an existing greenhouse with insufficient front yard setback of 40 feet. However, the variance was subject to four (4) conditions. (See attached copy of Board of Appeals Decision and Resolution dated March 18, 1980. The Southold Town Building Department on July 23, 1981, in con- forming to the Board of Appeals decision granted the McGuire's Building Permit No. 11298Z for the construction of the portico in the front yard area of the greenhouse. (See attached copy of Building Permit No. 11298Z dated July 23, 1981) On March 31, 1983, Building Inspector, Curtis W. Horton, found the McGuires were displaying rose bushes and shrubbery in the front yard area of the premises at Main Road, Mattituck, New York. Mr. Horton charged the McGuires with a violation of the Zoning Code citing the McGuires they were in violation of their Building Permit and the Board of Appeals Resolution which granted them the variance. Thereafter, there was a trial of this matter along with other violations of the Zoning Code. Richard J. Cron, who represented the McGuires raised the question before Judge Tedeschi that the Information charging the McGuires with a violation of displaying rose bushes and shrubbery in the front yard area was invalid because Section 100-30 a (2) [1] provided among other things "display of produce shall not be less than 10 feet from all street and lot lines". Mr. Cron argued to the Court the Information was invalid as the McGuires had not violated.the Southold Town Zoning Board of Appeals May 17, 1985 Page 2 Zoning Code by displaying rose bushes and shrubbery forward of the portico in the front yard area of their property as long as it was not within 10 feet of the lot line. Mr. Cron argued if the Board of Appeals decision meant what the Building Department had interpreted, then the McGuires would have given up a valuable right to display their nursery produce for sale in the front yard area. Mr. Cron further argued the display of nursery products in the front yard area is customary and incidental with the opera- tion of a nursery business. Condition No. 2 of the variance states "That no displaying or storing o~ goods shall protrude forward of the portico exten- sion herein." Section 100-30 a (2) [1] refers to the display of produce. It is the Building Department's position the words "goods" and "produce" are used interchangeably and nothing was to be stored or displayed in the front yard area of the McGuire greenhouse when the Board of Appeals granted them the 10 foot variance to allow the construction of the portico. The Building Permit ~ssued the McGuires clearly notes there shall be no display forward of the portico extension. It is the Building Department's position this is the only permissible interpretation of the Board of Appeals decision since in reviewing the minutes of the hearing held on February 28, 1980, at page 34 thereof, Mr. Douglass stated in stating the condition, that "In other words you must have 40 feet open in front". Mr. McGuire then responded "Okay, that sounds good". The Chairman, Mr. Gillispie, then stated "If you want to display anything, its supposed to be under that extension of the roof of it." (See attached copy of minutes of public hearing held on February 28, 1980) The Defendants' counsel argues the Board of Appeals cannot take away a valuable statutory right granted to defendants in the conduct of the nursery business, and the Building Department's interpretation of the condition is invalid. In an effort to resolve this property Town Justice Tedeschi requested the Building Department to obtain an interpretation of what was meant by the Southold Town Board of Appeals when they used the word "goods" in setting forth condition No. 2 in Appeal No. 2669. Therefore, pursuant to Section 100-121 d (1) I am requesting you provide the Court with an interpretation of condition No. 2 in Appeal No. 2669 (James and Mary McGuire). VGL:ec Enclosures cc: Judge Frederick J. Tedeschi Richard J. Cron, Esq. Richard F. Lark, Esq. · ~y truly Victor G. Lessard Executive Administrator DEPARTMENT OF' PLANNING LEE E. KOPPELMAN DIRECTOR OF PLANNING Town of Southold Board of Appeals March 7, 1980 Pursuant to the requirements of Sections 1323 to 1332 of the Suffolk County Charter, the following applications which have been referred to the Suffolk County Planning Commission are considered to be a matter for local determination. A decision of. local determination should not be construed as either an approval or a disapproval. Applicant Municipal File Number Dwight W. Weist Mattituck Free Library James & Mary McGui~e 2663 2665 2669 CGN :Jk Very truly yours, Lee E. Koppelman Director of Planning CH:~F PLANN~.R TOWN CLERK 765-3783 Building Dept. Planning Bal. 765-2660 Board of Appeals 765-1809 TOWN OF SOUTHOLD TOWN CLERK'S OFFICE Main Road Southold, N. Y. 11971 Pursuant to the General Municipal Law, Chapter 24, of the Consolidated Laws, Article 12-6, Sections 239-1 and m, the ... ~.o.a.r?.]..o.f..,~?.~a..1.s ............... of the town of. Southold (agency involved) hereby refers the following proposed zoning action to the Suffolk County Planning Commission: (check one) ................ New and recodified zoning ordinance ................ Amendment to the zoning ordinance ................ Zoning changes Appeal No. 2669 James & Mary McGuire ~ain Road Cutchogue, ~Y 11935 ................ Special permits ~ ........... Variances Art. III, Sec. 100.-30 & 100-31 Location of affected land: ~.~t~!~%9~t~`}~i~:~u-~t~z~u~t~c~ ............................... within 500 feet of: (check one or more) County Tax M-ap Item No. 1000-108-03-13.6 ................ Town or village boundary line, or shore line .~* ........... State or county road, parkway or expressway ................ State or county park or recreation area ................ Stream or drainage channel owned by the county or for which the county has established channel lines. ................ State or county owned parcel on which a public building is situated A?~licants ~/erc ~ra]~t~d ~ermi~sion to ~onstruct portico Comn)enl;s: . ' ' ~ . , ~ . ~. addition on existing greenhouse w~tn an ~nsuff~c~ent frontyard setback of 40 feet off :,lain Road, provided that nothin9 will extend past the proposed 10-foot portico and no materials %~ill be stored past the extension in tile frontyard area. CG:lk Enclosures Date received by Suffolk County Planning Commission File No ................................. (signed) ~ec~aar. y. ........................................................... Tit/e 0 0 Southold Town Board of Appeals -~E]UTHOLD, L. I., N.Y. 119'71 TELEPHONE (516) 765-1809 APPEALS BOARD MEMBERS CHARLES GRIGONIS, JR.t Chairman SERGE DOYEN, JR. TERRY TUTHILL ROBERT J. DOUGLASS TYPE II ACTION DESIGNATION NEGATIVE DECLARATION NOTICE OF NO SIGNIFICANT EFFECT ON THE ENVIRONMENT Pursuant to Section 617.13 of the New York State Department of Environmental Conservation Act, Article 8 of the Environmental Conservation Law, and Town Law of the Town of Southold, Section 44-4B, the Southold Town Board of Appeals has determined that the following project is classified as a Type II Action not having a significant effect on the environment and will not require any other determination or procedure. DESCRIPTION OF PROJECT Appeal No. 2669. Application of JAMES AND MARY McGUIRE, 20985 Main Road, Cutchogue, New York 11935. Location of Project: 20985 Main Road, Cutchogue, New York. County Tax Map Item No. 1000-108-3-13.6. Permission Requested: To construct addition (portico) with an insufficient frontyard setback. Art. III, Sect. 100-30 & 100-31. Documents on File: Appeal Application, Notice to Adjoining Neighbors, Affidavit Attesting to the Mailing of said Notice, surveys and/or sketches of the proposed project, Notice of Dis- approval from the Building Inspector, Legal Notice of Hearing, Environmental Assessment in the Short Form, Section of the County Tax ~ap showing the subject property, & other documents as may be required. Person to Contact for More Information: Mrs. Linda Kowalski, Secretary, Board of Appeals, Southold Town Hall, Main Road, Southold, New York 11971; tel. (516) 765-1809. Dated: 2/11/80. Copies to; Supervisor W. Pell; County Planning Commission. INSTRUCTIONS: (a) In order to answer the questions in this short EAF it is assumed that the preparer wiIi use currentiy avaiiabIe information concerning the project and the iikeiy impacts of the action. It is not expected that additionai studies, research or other investigations wiII be undertaken. (b) If any question has been answered Yes the project may be significant and a compIeted EnvironmentaI Assessment Form is necessary. (c) If aII questions have been answered No it is IikeIy that this project is not Significant. (dj E~vi'ronmental Assessment }. Will project result in a large physlca! change to the project site or physically alter more than 10 acres of land? ........................ Yes ~No.,. 2. Will there be a major change to any unique or unusual land form found on the site? .......... Yes o 3. Will project alter or have a large effect on existing body of water? ....................... · Yes. ,. 4. Will project have a potentially large impact on groundwater quality? ....................... Yes 5. Will project significantly effect drainage. flow on adjacent sites? ........................ Yes ~, Wiii project affect any threatened or endangered pIant or animai species? ........... __Yes o 7. Will project result in o major adverse effect on oi~ quality? ............................... . Yes o' 8. Will p~o3ect hove o mojo~ effect on visual chorocte[ of the community o~ scenic views o~ vistas known to be ~mportont to the community?. Yes ~. Will p~oject adversely impact any site o~ structure of historic, p~ehisto~ic o~ paleontological importance o~ any site designated os a critical environmental area by o local agency? ............ -.;..¥~.~...~.....~__Yes o 10. Will p~oject hove o major effect on existing o~ future ~ecreotionol opportunities? .........., Yes 11. Will project ~esult in mojo~ traffic p~oblems o~ cause o mojo~ e~fect ~o existing t~onspo~lot~on systems? ....................... Yes ~No 12. Will project ~egulorly cause objectlonoble odo~s~ noise~ glo~e, vibrotion~ or electrical disturbance as o result of the project's opero~ion? ..................................... Yes o 13. Will projec¢ have any impoc~ on public health f ~y? Yes 14. Will project affect the existing community by directly causing a growth in permanent population of mo~a than 5 percent ove~ o one yeo~ period o~, have o major negative on the character of the community o~ neighborhood~ ................................. _ Yes ~No 15. Is the~e public controversy concerning the project7 ...................................... Yes o PREPARER'5 SIGNATURE ~,~%~/ - / REPRESENTING. ~ ~ $outhold Town Board of Appeals -~1- 'February 28, 1980 RESOLVED, to RESERVE DECISION in the matter of the applica- tion of FISHERS ISLAND DEVELOPMENT CORP., Appeal No. 2657 and the hearing be declared closed .... Vote of the Board: Ayes: Messrs. Grigonis, Douglass, Tut- hill and Doyen. Messr. Goehringer abstained. PUBLIC HEARING: ~ppeal No. 2669. Application of JAMES and MARY McGUIRE, 20985 Main Road, Cutchogue, New York, for a Variance to the Zoning Ordinance, Article III, Section 100-30 and 100-31 for permission to construct addition (portico) with an insufficient frontyard setback. Location of property: 20985 Main Road, Cutchogue; bounded north by Adel and Sheehan; east by Sheehan; south by Stepnoski and Bagenski; west by Main Road (S.R. 25). ~ County Tax Map No. 1000-108-003-13.6. The Chairman opened the hearing at 9:45 P.M. and the reading of the legal notice was waived by applicant. The Chairman read the Building Inspector's Notice of Disapproval, application for a variance, and letter from the Town Clerk that notification to adjoining property owners was made; fee paid $15.00. JAMES McGUIRE: I request that you approve the 15-foot portico for improving the appearance. CHAIRMAN: Here is a sketch showing what it will look like after it's completed. MR. TUTHILL: Let me ask you a couple of questions. It might seem silly, I don't mean them that way. I don't know the construction of those plastic greenhouses, but would it be impractical to move that greenhouse back and would it be im- practical to shorten it up? MR. McGUIRE: It would be impractical to move it back because it would require taking the whole thing down, and in moving it back, it would also, in b~ck o£ the greenhouse we would have to build up the land. CHAIP~AN: Yeah, it slopes down there. MR. TUTHILL: You can't cut off the front 10 feet or anything? MR. McGUIRE: Well, I suppose you could but it would be cutting down your growing space by approximately 10%. That greenhouse is about 100 feet long, so if you took 10 or 15 percent off, you would be losing your growing area by that amount. Also, it would require, you know, people coming in and modifying the greenhouse so that, the first section of the greenhouse has to be in the first section, because that's where the plastic is. , $outhold Town Board of Appeal~ L32- February 28, 1980 MR. TUTHILL: You couidn't hook it in the back in other word~? MR. McGUIRE: Right. In other words, if you just took the first section out and went to the second section, because the plastic would not fasten to the greenhouse, you would have to take two sections out to put the end section, wherever the greenhouse starts. Again, it always has to be at the end for the purposes of securing the plastic. MR. TUTHILL. Ok. Is there any reason wh~ this couldn't be cut down to the 10 feet instead of the 15 feet in depth? Would it interfere with your plans, because certainly that place can stand some improvement in looks. MR. McGUIRE: Well, that's what we're attempting. We recog- nize that. In going over this with the architect and various carpenters, we came up with this. Now to reduce it, naturally we would have to go back and discuss it with those people and find out the pros and cons of reducing it to ten feet. MR. TUTHILL: Are you going to use this just to improve the looks or for display purposes? We don't want to create a store there. MR. McGUIRE: No. It's going to be open all the time. I won't say that we won't hang a plant from a rafter, but it will not be enclosed and it will not be used as a selling area. The basic purpose is to improve the sight. That's what we're trying to achieve. MR. DOUGLASS: The only thing that you would be involved in by cutting back to 10 feet instead of 15 is your roof will gain about one to two inches of pitch, that's all. That's the only thing that will change. It will not change anything construction- wise other than that. It will change the pitch line of your roof a little bit, that's all. And that will keep you back 40 feet from the road. MR. McGUIRE: I certainly wouldn't say it can't be done. It's just that I wasn't prepared to answer that question. MR. DOUGLASS: It would be cheaper than 15 foot. MR. McGUIRE: Yeah. CHAIRMAN: Yeah, I was just thinking, it would probably save you some materials. MR. McGUIRE: You're talking like one-third. And the price of lumber today is out of sight. I have no reason to say that it shouldn't. In going over this in trying to improve it, this is What we came up with and that's why we were asking for it. ~ $outhold Town Board of Appeals -33- 'February 28, 1980 MR. TUTHILL: It isn't going to end up in any of your parking area there? · MR. McGUIRE: I don't think so. There was a man down from Cornell University, who was a specialist in parking, and we had him out there and we showed him this, and he had a positive reac- tion to it. That was back in January some time. MR. DOUGLASS: You might lose some of that though along there when the road transfers. And that becomes County road instead of State. MR. McGUIRE: Well, I wouldn't know. MR. DOUGLASS: It widens out. MR. CHAIRMAN: We never know when it's going to happen. It may not happen in a year, I don't know. MR. DOUGLASS: It was supposed to take effect a year ago this coming April, but it was held up, because what's happening the County Road is becoming State Road, and the State Road will become County Road, as soon as the County finishes the four lanes to the blinker at Porky's. When they get the four lanes there which they surveyed for last year, then it becomes State Road. MR. McGUIRE: The County is out to widen that road? MR. DOUGLASS: They will. They will shove it out some. MR. TUTHILL: You mean the County's taking over? MR. DOUGLASS: Tkey own 13 feet now on either side of the road, the State does. You see they own inside that telephone pole line that's on your front there now. The telephone pole is on the State property. MR. McGUIRE: I wasn't aware that there were plans to widen it. MR. DOUGLASS: Eventually, it has to happen, we don't know when. It's been on the maps for a while, all of it to transfer these roads. CHAIRMAN: Variamces or anything up along this road here we had to consider where the two lanes were coming. There are two additional lanes and we had them set way back. You'll notice some of the buildings back here are set way back from the road. Because when they come through here eventually they ale going to put the two lanes on this side through here. MR. DOUGLASS: Maybe you and I will never live to see it but it's on the books. . Southold Town Board of AppealS' ~34- February 28, 1980 CHAIRMAN: There is nobody here to object to this (no one else was present). MR. TUTHILL: My feeling is I would be willing to gi~e up a few'~feet to make those buildings more attractive. MR. DOUGLASS: I'll make a motion that it be granted to extend 10 feet in front of the buildings with a condition that it cannot be closed in and the other condition which I gave Linda, that no display or storage of goods shall protrude forward of that extension. In other words you must have the 40 feet open in front. MR. McGUIRE: Ok. That'~ sounds good. CHAIRMAN: If you want to display anything, it is supposed be under that extension of the roof of it. MR. TUTHILL: Can we put something in there, an option for Mr. McGuire if he finds that for some reason the 10 feet is going to lessen the beautifying or be impractical that he can come back to us? MR. DOUGLASS: Yes. MR. TUTHILL: I would hate to stick him with 10 feet just ~ike that. SECRETARY: Do you want to add that then as a condition, Bob? MR. DOUGLASS: Yes. And how can we word it. MR. TUTHILL: If the 10 foot is found to be impractical for some reason, he may come in. MR. DOUGLASS: He can come back to us and we will reconsider. MR. McGUIRE: As I say, I don't know what, if any, problems that five feet will create. MR. DOUGLASS: It won't create any. It will save you money. MR. McGUIRE: We didn't just sit down and arbitrarily come up with it. We did consult various people and come up with this idea, and as I say, I don't know whether five feet is going to cause any problem. MR. TUTHILL: Well, what you've got to get, go over it with the architect and see if it can be done nicely with 10 feet instead of 15. MR. DOUGLASS: The only thing it will cut down is a little bit of sales room, structurally it will not change anything. It will be cheaper. Because 15. feet I can tell you, you~ . rafter work on Southold Town Board of Appeals -~5- ~February 28, 1980 15 foot against 10 foot is going to be considerably different. After investigation a~d inspection, the Board finds that the applicants are requesting to construct a portico to an existing greenhouse at premises located on the Main Road, Cut- chogue, New York which would set an insufficient setback off Main Road to 35 feet. The Board feels that a 10-foot portico addition instead of a 15-foot portico addition would be suffi- cient for the purposes of improving the appearance of the existing structure. The applicant has stated that to move the existing greenhouse back far enough to construct the portico without a frontyard setback would be a hardship and practical difficulty due to the plastic and uneven construction of the greenhouse. The Board ~finds the reasoning of the applicant appropriate and reasonable. The Board finds that the circumstances present in this case are unique, and that strict application of the ordinance would produce practical difficulties or unnecessary hardship. The Board believes that the grant of a variance in this case will not change the character of the neighborhood and will observe the spirit of the zoning ordinance. On motion by Mr. Douglass, seconded by Mr. Tuthill, it was RESOLVED, that JAMES and MARY McGUIRE, 20985 Main Road, Cutchogue, New York, be GRANTED a Variance to the Zoning Ordi- nance, Article III, Section 100-30 and 100-31 for permission to construct a 10-foot portico with an insufficient frontyard setback, SUBJECT TO THE FOLLOWING CONDITION: (1) That the portico will not be permitted to be enclosed; (2) That no displaying or storing of goods shall protrude forward of the portico extension granted herein; (3) That the applicants may return and request of this Board that the additional five feet as originally requested be approved if there is a practical difficulty in constructing the 10-foot portico rather than the 15-foot portico. (4) Referral to the Suffolk County Planning Commission. Location of property: 20985 Main Road, Cutchogue; bounded north by Adel and Sheehan; east by Sheehan; south by Stepnoski and Bagenski; west by Main Road (S.R. 25). County Tax Map Item No. 1000-108-003-13.6 Vote of the Board: Ayes: Messrs. Grigonis, Douglass, Tut- hill and Doyen. Messr. Goehringer abstained. O O K JUDITH T. TERRY · TOWN CLERK REGISTRAR OF VITAL STATISTICS Southold, L. I., N. Y. 11971 February 6, 1980 TELEPHONE (516) 765-1801 JTT/bn cc:file Enc./ To: Southold Town Zoning Board of Appeals From: Judith T. Terry, Town Clerk Transmitted herewith is Zoning Appeal No. 2669 application of James & Mary McGuire for a variance. Also included are notification to adjoining property owners as follows: Warner Adel, 854 Robin Ct., Baldwin, N.Y. ; Connie Bagenski, Main Road, Cutchogue, N.Y., Victoria Stepnoski, Little Neck Park, Peconic,N.Y.; Brian Sheehan, Manor Hill Lane, Mattituck, N.Y. Town Clerk ? BOARD OF APPEALS, TOWN OF SOUTHOLD In the Matter of the Petition of to the Board of Appeals of the Town of Southold To: NOTICE YOU ARE HEREBY GIVEN NOTICE: 1. That it is the intention of the undersigned to petition the Board of Appeals of the Town of Southold to request a (Variance) (Special Exception) (Special Permit) (the following relief: 2. That the property which is the subject of the Petition is located adiacent to your property and is des- ~ cribed as follows: /0o0 - /09~- o3- 013.~ 3. That the property which is the subject of such Petition is located in the following zoning district: 4. That by such Petition, the undersigned will request the following relief: 5. That the provisions of the $outhold Town Zoning Code applicable to the relief sought by the under- signed are: /~f~ /TT_ ~O /60- 6. That within five days from the date hereof, a written Petition requesting the relief specified above will be filed in the Southold Town Clerk's Office at Main Road, Southold, New York and you ma)' then and there examine the same during regular office hours. 7. That before the relief sought may be granted, a public hearing must be held on the matter by the Board of Appeals; that a notice of such hearing must be published at least five days prior to the date of such hearing in the Suffolk Times and in the Long Island Traveler-Mattituck Watchman, newspapers published in the Town of Southold and designated for the publication of such notices; that you or your representative have the right to appear and be heard at such hearing. Dated: ~ -~.~- Petitioner Post Office Address NAME PROOF OF MAILING OF NOTICE ADDRESS PS Form 3800, Apr. 1976 CONSULT POSTMASTER FOR FEES O~IONAL SERVICES ' R~URN RECEI~ SERVICE i ~1 ~ I I ' STATE OF NEW YORK COUNTY OF SUFFOLK SS.: ~t } [~ ~ ~,~.~ , being duly sworn, deposes and says that on the {o day of ~1. ~/~z~ ,19 ~*C> . deponent mailed a true copy of the Notice set forth on the re- verse sid~ hereof, di~cted ~o each of the above-named persons at the addresses set opposite their respective names; that the addresses set opposite the names of said persons are the addresses of said persons as shown on the current asse~sm?t r~ll of the Town of Southold; that said Notices were mailed at the United States Post Of- fice at ( .x~L-t.~q~ ~ ~,._v__. ; that said Notices were mailed to each of said persons by (certified) (registered) mail. Sworn to before me this day of Notary Public LINDA F. KOWALSKr NOT;,RY PUBLIC, State of New Yor*K No. 52-4524771 Quglifi~d in Suff,qk County Commission £xpires March 30, 1980 ~5~00' ~7.~ 35000' Woy '~ t and of Bagenski ........ .... 155.~5' -' ' Are° = 4. 098 Acres REV,S,O~S YOUNG & YOUNG OCT.,EI, 19T4 400 OSTRANDER AVENUE, RIVERHEAD, NEW YORK NOV./$,I~74 ALDEN W. YOUNG HOWARD W, YOUN! MAP PREPARED FOR . CUTCHOGUE [ [~ SUFFOLK C0., N.Y. ~D su~¢ ~ 25.4 A 5,21' 5.12 5,22~ 5,23 .5,24 5eSj 13,8 ~..<' -" 4.3, A~c) 7.5 7,2 2.9 A(c} OR PARCEL NO .EE SEC NO 7.5 5,25 5.9 5,8 ro 2.2A(c) 5,30 5,26 5,6 I.IA (c) 4.0A(c) '; ' 15.,9¥i, 4.lA[ ) ~.,: 7. lA[c) ' Revis,ons ~e¥ ~AP [ O .Cy vl,.b~_ OF ~:.. ;.....,? ~ I__j_~, ,, ,, ,- ..-,. .... . ,]7_l_' . . COUNTY OF SUF. FOLK..- ;.,., , ..]TO'"OF SOUT,HOLD j s,c,,o--,o.__ .~._.~,~¢,.~,.r,,~,,,/,7,,i~__h ....... , ........ 1 ,o, ~2 Real prOperty Tax Servlge'Agen ' ~-" --".-/~,&i~ ...... ~ ~o~ ~o~ ~om 4~ .... /e~ jlO ~ ' County,,Cente~ ~,...,,.~,,. ,.../,.: JmSTmCT~O. lO00~ f FORM No. 3 TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN CLERK'S OFFICE SOUTHOLD, N.Y. NOTICE OF DISAPPROVAL File No .......... ,~ ..................... ~. ~...'. ~...//..~..~....: //.~/..~.-~.,. ~.~....~.~?. for permit to construct c~.o/. ~;~/.-.//~../(0... ~C~. 2~. l~?..~,~.~.. V¢£//.~/<-f'~..,~c .~,~. ....... at Location of Property h~ County Tax Map No. 1000 SeCtion...~ ..... Block S.t~ ........ ~t. Subdivision ' ................. Filed Map No ................. ~t No ...... ......... is returned herewith and disapproved on the follow~g ground~{~..L~..~ ...... ~ ........... ~.~ ............. ~. ~ ~o~ ~ ~7~ Bu~dh~g Inspector RV 326 EXHIBIT FORM NO. 1 TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN HALL SOUTHOLD, N.Y. 11971 TEL.: 765-1803 Examined ................. 19 ... Approved ................. 19... Permit No ............ Disapproved a/c ..................................... Application No .................. (Building Inspector) APPLICATION FOR BUILDING PERMIT INSTRUCTIONS a. This application must be completely filled in by typewriter or in ink and submitted in triplicate to the Building Inspector, with 3 sets of plans, accurate plot plan to scale. Fee according to schedule. b. Plot plan showing location of lot and of buildings on premises, relationship to adjoining premises or public streets or areas, and giving a detailed description of layout of property must be drawn on the diagram which is part of this appli- cation. c. The work covered by this application may not be commenced before issuance of Building Permit. d. Upon approval of this application, the Building Inspector will issue a Building Permit to the applicant. Such permit shall be kept on the premises available for inspection throughout the work. e. No building shall be occupied or used in whole or in part for any purpose whatever until a Certificate of Occupancy shall have been granted by the Building Inspector. APPLICATION IS HEREBY MADE to the Building Department for the issuance of a Building Permit pursuant to the Building Zone Ordinance of the Town of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations, for the construction of buildings, additions or alterations, or for removal or demolition, as herein described. The applicant agrees to comply with all applicable laws, ordinances, building code, housing code, and regulations, and to admit authorized inspectors on premises and in buildings for necessary inspections. ...... .................. (Sign~ure df applicant, or name, if a corporation) .... b .... (Mailing address of applicant) State whether applicant~essee, agent, architect, engineer, general contractor, electrician, plumber or builder. (as 'on the tax roll or latest deed) If applicant is a corporation, signature of duly authorized officer. (Name and title of corporate officer) Builder's License No.. ~ ~//C'~/C~ &' .'~... Plumber's License No ......................... Electrician's License No. //-~.4~'/,~'~/'",,- ~)~/r,~('7~/~T_ Other Trade's License No ...................... 1. Location of land on which proposed work will be done .................................................. · z ........... ....................... House Number Street Hamlet County Tax Map No. 1000 Section ..../..~..~.~.. ....... Block .... ~..~.~ ......... Lot...O'../..'~.~.~..~*. · .of..' .... Subdivision ..................................... Filed Map No. ' Lot ............... (Name) 2. State existing use and occupancy of premises and intended use and occupancy of prc~posed construction: . a. Existing use and occupancy . O.&/~....--~(.we~'((.7...~-l/~dd~....-~..Xd¢4 .,5',~7'~,/C~ .., .~/~?/,~./~.~'.C.~ b. Intended use and occupancy. ~-../~,X~"..,?./.././~'..~'~.....-(~/.AL'7=-~-,~'~.Ocq.'~-: ........... 3. Nature of work (check which applicable): New Building .......... Addition .......... Alteration .......... Repair .............. Removal .............. Demolition .............. Other Work ............... 4. Estimated Cost ...................................... ~ '~ ~'~(D O ~ ~- Fee £ ~ ?_~o. (Description) (to be paid on filing this application) 5. If dwelling, number of dwelling units ............... Number of dwelling units on each floor ................ If garage, number of cars ........................................................................ 6. If business, commercial or mixed occupancy, specify nature and extent of each type of use ..................... 7. Dimensions of existing structures, if any: Front .... { .o. ........ Rear . ..~.q ......... Depth . [ .c: .o..~ ....... Height ............... Number of Stories .................................... Dimensions of same structure with alterations or additions: Front . (pO Rear' ' ' ~' ~" ............ Depth I I .'~ Height ~ C~.d~ ,u ~ . ......................... Q ...... Number of Stories .. ~ ...... ,.., ........ 8. Dimensions of entire new construction: Front ... (~'9 ......... Rear .. ~.O .......... Depth . ( .'~. ?~ ......... Height . .q~Fir:. ....... Number of Stories ....~...iX ................................... 9. Size of lot: Front .. ~.....~..c,(~. ?. '~"7 Rear ...................... Depth ...................... 10. Date of Purchase ............................. Name of,Fo,rm, er Ogc~er ............................. 11. Zone or use district in which premises are situated ............ ,fO ...../.(.~-~. (~'~./.i-~ ,/ ............... 12. Does proposed construction violate any zoning law, ordinance or regulation: ~ ....... 13. Will lot be regraded ............................ Will excess fill be removed from premises: Yes No 14. Nmne of Owner of premises .................... Address ................... Phone No ................ Name of Architect ........................... Address ................... Phone No ................ Name of Contractor .......................... Address ................... Phone No ................ PLOT DIAGRAM Locate clearly and distinctly all buildings, whether existing or proposed, an& indicate ail set-back dimensions from property lines. Give street and block number or description according to deed, and show street names and indicate whether interior or corner lot. ~ STATE OF NEW Y--ORK-~-- ,, .......... ..... '- (Narnte of in/lividual s~gmng contract) above named. being duly sworn, deposes and says that he is the applicant .,5He is the ................... .O .t~./k'..~.~. .......................................................... (Contractor, agent, corporate officer, etc.) of said owner or owners, and is duly authorized to perform or have performed the said work and to make and file this application; that all statements contained in this application are true to the best of his knowledge and belief; and that the work will be performed in the manner set forth in the application filed therewith. Sworn to before me this (Signature of applicant) ~O~M[ NO. 1 TOWN O{: SOUTHOLD BUILDIHG D{:PA RTA4ENT TOWN CLERK'S OFFICE ~UTHOLD, N. Y. ......................................... ........... (~ui~n~ inspector) Application No. 6~ 0 APPLICATION FOR BUILDING PERMIT Dote June 22~ 1978 INSTRUCTIONS a. This application must be completely filled in by typewriter or in ink and submitted in triplicate to the Building Inspector, with 3 sets of plans, accurate plot plan to scale. Fee according to schedule. b. Plot plan showing location of lot and of buildings on premises, relationship to adjoining promises or public streets o~ c]reas, and giving a detailed description of layout ofproperty must be drown on the diagram which is part of this application. c. 'The work covered by this application may not be commenced before.issuance of Building Permit. d. Upon approval of this application, the Building Inspector will issue a Building Permit to [he applicant. Such permit shall be kept on the premises available for inspection throughout the work. e. No building shall be occupied or used in whole or in port for any purpose whatever until a Certificate of Occup~'ncy shall t~ave been granted by the Building Inspector. APPLICATION IS HEREBY MADE to the Building Department for the issuance of a Building Permit pursuant to the [~,!ding Zone Ordinance of the Town of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or R(gulotions, for the construction of buildings, additions or alterations, or for removal or demolition, os herein described he applicant agrees to comply with all applicable laws, ordinances, building code, housing ccde, and regulations, and to adm;t authorized inspectors on premises and in buildings for necessary inspections. INLA~D ~S, INC. (Signature of applicant, or nome, if o corporation) Box 117~ ~%t~ituck~ N.Y. 11952 (Address of op;}!icant) Slate whether applicant is owner, lessee, agent, architect, engineer, general contractor, electlician, plumber or builder. General Contzac'~or Nome of owner of premises James McGutre if applicant is a corporate, signature of duly authorized officer. .................. R~b.e~.L E...Hil~. ................................ (Name and title of corporate officer) Builder's License No. 517-P Plumber's License No ................................................. E.ecmc~ans License No. 2148-E Other Trade's L'cense No Location of land on which proposed work will be done. Map No.: ........................................ Lot No ....................... Street and Number Main Road (..Rte 25) Ma~ituck~ N,Y. ' Municipality State exlsting use and occupancy of premises and intended use and occupancy of proposed constructJonL c. Exisiting use and occupancy Vacan~ b. Intended ~,se and occupancy 1 Family 3. Nature of work (check which applicable): New Bui!d~ng ................. XXX . Addition .................. Alteration ................ Repair .................. Removal .................. Demolitior .................... Other Work ................................................. (Description) 4. Estimated Cost .~.~...O.~.~..O~....%.O..O., ................................... Fee .......................................................................................... (to be paid on filing this application) 5. If dwelling, number of dwelling units ............................ Number of dwelling units on each floor ............................ If garage, number of cars ............................................................................................................................................ 6. if business, commercial or mixed occupancy, specify nature and extent of each type of use ............................ 7. Dimensions of existing structures, if any: Front ........................... Rear ................................Depth .................... Height ........................ Nurnber of Stories '~ ' Dimensions of same structure with alterations or additions: Front .................................... Rear ........................... Peptl~ ................................ Height ........................... Number of Stories ................................ ~: Dirr:ensia~s of entire new construction: Front ........ .6..9. ...................... Rear ...... .6..9. ................. Depth ..... .4...1. .............. Height .................... Number of Stories 2 9 ~ze of Iai: Front 320 See Survev ~ 417 444 ~ . .................................... 1 ................. tear .......................................... Depth ................................ I©. Dote of Purchase ....................................................... Name of Former Owner ........................................................ · 1. Zor~e or use district in which premises are situated .................................................................................................. 12 Oces proposed construction violate any zoning law, o~dinc'nce or regulation: ....................................................... .3 W~il lot be regraded ........ ,~.~ .............Will excess fill be removed from premises: ( ) Yes (x) No '. Name of Owner of premises James ~4cGuire Address Phon. No. Nome of Arct~itect .......................................................... Address ................................Phone No ....................... '~ontr cto~ND HCI~LES~ INC. A4N .... BOX 117 Ma¢¢iCmck,~ 298-9696 Nomo of ~ c~ ................................................... ,~ ................................ ruu,.~ No ....................... PLOT DIAGRAM Locate clearly and distinctly all buildings, whether existing or proposed, and indicate all set-back dimensions from ~r, pcrty lines. Give street and block number or description according to deed, and show street names and indicate · ..i,eiher interior or corner lot. { ZOUNTY OF .......... ~ ....o_ ...~..._ ... f ~.: / . .~.9~.~ ~...~.,...~~. Z ~ Z ......... (Name of individual signing'co6tract) ~ ' ~bove named. F-ia is ~he C0~¢~¢0~ 5wor~ and says that he is the applica:-n (Contractor, agent, corporate ', etc.) ~f said owner or owners, and is duly authorized to perform or have performed the said work and to make end file d,is application; that all statements contained in this application ere true to the best of his knowledge c~nd belie!'; mar the work will be performed in the manner set forth in the application filed therewith. j ~worn to before me this __~ , ,, . ~--- -. ~-~LL ~ ~.~7~~ ~ Nota~ Pubhc, . .......... ~.~t~ ........................ County ............... ~.~-~$<.~;t .......... 3 ......................... ~ ~ Rober~ ~g~,~f ~OTARY PUBLIC, St~e ~ ~ Y~ Suffo~ ~un~ No. ~ $5~00' tond o£ .... IJ5. R5' - '" .~agenski "'~le. OOo, s..4. /' reo= 3.571Acres $5000' f V/oy ._ ~reo = ~. 098 ~cres 1020. 00' ? REV,S,O~S YOUNG & YOUNG. OCE2/t/97'4 400 OSTRANDER AVENUE, RIVERHEAD, NEW YORK /VO J~'/2t/~'7~;t ALDEN W. YOUNG HOWARD W. YOUi MAP PREPARED FOR TOWN OF ' -,-ow,,, FREDERICK J. TEDESCHI ~ OFFICE AND COURT LOCATION TOWN JUSTICE SOUTH©LO TOWN HALL 53095 MAiN ROAD SOU~ HOLD, NEW YORK 11971 (516) 765"1852, 1153 May 28, 1985 Gerard P. Goehringer, Chairman Southold Town Board of Appeals Southold Town Hall Southold NY 11971 RE: PEOPLE V. J/~4ES AND MIddY MC GUIRE Dear Chairman Goehringer, I am in receipt of your lett_er of May 24, 1985. Please be advised that I authorized no inquiries to be made on my behalf. When I read the letter of Mr. Victor I.essard, wherein he alludes to the same inquiries as you did, I was ~uzzled by the reference. My recollection, which has been confirmed, was that when the matter last appeared in open Court, Special Prosecutor, Richard F. Lark, made the suggestion that he approach the Zoning Board of Appeals for a clarification of its decision of May 18, 1980. Both Richard Cron, attorney for both Defendants and myself merely acquiesced in Mr. Lark's suggestion. At no time was I under the impression that certain inquiries were to be made on the behalf of the Court. That is the reason why heretofore you have not received any direct communications from this office. Within the above parameters, if I can be of any assistance, please don't hesitate to call upon me. Kindest personal regards. FJT:cas P~D ~I Box 106 C ~ttituck, N.Y. 11952 July 13, 1984 Executive Administrator, Victor Lessard Southold Town Building Dept. P.O. Box 728 Town Hall Southold, N.Y. 11971 Dear Mr. Lessard: Pursuant to Supervisor ~urph~'s letter of July 9, 1984, (copy attached) enclosed is a copy of the Underwriter's Certificate requested. As you know, my application for a Certificate of Occupancy has been pending for quite sometime. It would be appreciated if this application would be given priority by your office and the Certificate of Occupancy be forwarded to me as soon as possible. .. Thank you for your cooperation. Very truly yours, ~/James R. NcGuire ~' - --~ :-'_:-.:~el, N.Y. 11~8 . .- .... ::_:-'-:- ' - -'- ~'Lio~2148E '- "~~:~: -- . ~i~ te~iii~ofe must ~t ~ o~ered in shy manner; Tenure ~o the o{fice'o{ the ~ord i{ in~orrect.-Insp~to~5 m~y ~e }de~i~ , the~r/~ed*ntiol~. FRANCIS Jo MURPHY SUPERVISOR ~F'F'I~,IE ~RvIsrlR MAIN ROAD SOUTHOLO, LI., N.Y. 11971 TELEPHONE (516) 765-1800 (516) ';'65-1939 May 8, 1984 Mr. James R. McGuire RFD 1, Box 1060 Mattituck, New York 11952 Dear Mr. McGuire: I have reviewed your lengthy letter dated April 13th, 1984. At this time I cannot answer all of the questions you have raised. I understand you are in litigation con- cerning the one story house in question as well as other matters with the Building Department. I have directed Mr. Victor Lessard, the Executive Administrator of the Building Department, to give me a .full report on this matter. On receipt of his report, I will refer the matter to the Town Attorney for a legal explanation. As soon as this is accomplished, I will forward a copy of the explanation to you. In the meantime you might like to come before the. Town Board to explain your situation. If you wish to do this, please contact my secretary, Mrs. Christina Hogan at 765-1800. ~Since urs, RFD1 Box 1066 Nattituck, N.Y. June 27, 198h Supe~-v£so= ~z~aucis J. Town of Southold ~ Rd. Southold, N.Y. 11971 Dea~ ~. ~: On Ap=il 13, I sent you a lette= outliuing various p=oblems I am hav~ug with the Southold Town B,,~la~ Depa~e~t. You~ =esponse on Na~v 8 stated that you ha~ o~e~ed a fu~l =epo~ on the matters =aised ami as soon as this =eport was =eceived by you aud =eviewed by the town atto~ey I would be hea~iug f~om you. To date, I have not ~eceived au~ fu~thu~ coz~espondence ~ =egam~g these issues. Please advise if this =eview has been concluded amd if so, when I might =eceive a =eply to my lette= of Ap=il 13- . T~ you fo= you.= help end unde=s~g tm this m~tte=. Very t=uly ~ames R. To my knowledge and beliefs the To~n of $outholds or any other §overn- mental bodys cannot destroys or demand to be destroyeds any build{ng or propertys without due process° I haves personallys searched the Building Department records and find no agreements which indicate this building was ever reclassified an accessory building. ! have substantiating documents that clearly show the building was built fors and has continuously been used as a one family dwe11ing. The writer states a final inspection would have to be made before a C of 0 could be issued° Thens he refers to the permit for a new foundation. What does this building permit of October 25s 198~ have to do with the application for C of 0 of October 20t 1983 is beyond mei The report writer states he notified me that an Underwriter Certificate would be required. The first time ! was aware that an Underwriter Certificate was needed was when you wrote me on July 9s 198qo You will note the Underwriter Certificate is dated Oecember 23~ 1982. Certainlys had the Building Oepartment required this documents ! would have provided its forthwith~ and avoided all these delays and hardships. ! demand the report writer produce the foilowingt Was there ever any agreementss meeting notess memerandun~or letters to reclassify this one family clwelling to an accessory building? 2. Was there ever any agreementss meeting notes, memorandums or letters to destroy this building? Was there ever a request for an Underwriter Certificate? I believe the items brought forth in the letter and my letter of April 1981+ clearly demonstrates the Building Department hass and will continue to~ interfere with the HcGuire property rights by its intentional reckless con- duct. If the Building gepartment has errored in carrying out its responsibilitys it cannot expect the HcGuires to suffer mental and flnanclal hardship, due to these mistakes. I believe it is the duty and responsibility of the Supervisor's Office to speedily and sufficiently resolve this matter and the issues it raisesi I can assure you that I will not let this matter rests until the questions raised in my letters are answer,dS Thank you for you~ cooperation° JRMcG/mv Sinceretys MC GUIRE R F O # 1 Box 106C Mattttucks New York 11952 Francis Jo Hurphy~ Supervisor Town of $outhold Main Road $outholds New York 11971 Dear Sirs I recently received a Certificate of Occupancy for a foundation to an accessory building and a copy of my'original application for a Certificate of Occupancy dated October 30s 1983o The $outhold Town Building Depart- ment~ once agatn~ is failing to address the issues. ! belleve the South-Id Town Building Department has and continues to operate in such a manner towards the NcGuires that can be described as gross negligences deliberate indifferences major misconduct and arbitrary° These acts by the $outhold Town Building Department have caused great mental and financial hardship upon mes my wife and children. These acts have caused my wife Nary to seek out the services of a psychiatrists on a regular basis. As you knows ! wrote you on April 13s 198b, outlining di~culties ! was having with the Town Buildlng Department. You ordered a *'FULL REPORT~ on the items ! outlined in my lettero The response ! received from your Chief Administrator of the Building Department is a disgraced The first sentence of this report states ~Mr. NcGuire had requested a Co of OD for a cottage~% The C. of O° (212635) issued was for a full cellar under accessory building. From the date (October 20~ 1983)~ when ! submitted the '~ApplicatJon for Co of Oo~ it was clearly stated that ! was requesting a C° of O. for the one family house built before 19~7° As recently as April 6s 198~s the Building Department stated my application for C. of Oe was for a '~ONE FAHZLY DETACHED O~ELL!NG~o bo The writer states he informed me that the building in question was an accessory buildlng~ By agreement of the permit issued for a new one story family dwelling (or!ginal agreement was to have this dwelltnq destroyed~ so he could build a new dweiltng)o The facts are ! have never met the writer. I did not apply for the original building permit (dated June 22, 1978)o ! certainly did not agree to~ or discuss~ with anyone to destroy the dwelling in questione TO VN OF SOUTHOLD OFFICE OF BUILDING INSPECTOR P.O. BOX 728 TOWN HALL SoUTHOLD, N.Y. 11971 ApriL_6, 1984 TEL. 765-1802 ~Mr. & Mrs. James R. McGuire 20935 Main Road Cutchogue, NY 11935 Dear Mr. & Mrs. McGuire: The Zoning Ordinance of the Town of Southotd, Art. III, 100- 30 A (1) states that one permitted use in the A Residential- · Agricultural District is "one-family detached dwellings, not to exceed one (1) dwelling on each lot." On June 28, 1978, building permit 9810Z was issued to 'Iniand Homes, Inc., a/c James & Mary McGuire for "a private one-family dwelling in place of existing 1 story house at premises located at Main Road - 160 Pvt. Rd. #3 Manor Hill Lane, Cutchogue, N.Y. Based on these faCts, I have no alternative but to deny your application for a certificate of Occupancy on the.structure you refer to as a cottage. Sincerely yours, victor Lessard Executive Administrator VL:ec RFD #1, BOx 106C ~fattituck, N.Y. iT952 July 24, 1984 Victor Lessard, Administrator Southold Town BuildinE Department ~ain Road Southold, New York, 11971 Dear Nr. Lessard: As requested by your office, attached hereto Is my check #659 in the amount of Five Dollars ($5.00) to cover the required fee for a Certificate of Occupancy for a one-story frame house. Very truly yours, %-/JAk'ES R. }lC GUIRE JRM/ef attachment cc: Supervisor Eurphy I JUSTICE COURT OF THE TOWN OF SOUTHOLD COUNTY OF SUFFOLK, NEW YORK THE PEOPLE OF THE STATE OF NEW YORK -against- + + DECISION ON MOTION AFTER TRIAL JAMES MC GUIRE a/k/a JAMES R. MC GUIRE and + MARY MC GUIRE, a/k/a MARY V. MC GUIRE, + DEFENDANTS Richard F. Lark, Special Assistant District Attorney for the People. Richard J. Cron, for Defendants This case came on for trial on June 3, 1983. After the conclusion of the People's case, the Court granted Defendant's motion to dismiss the case against the Defendant Mary McGuire on the grounds that said Defendant never signed the application for the building permit nor was she ever served with a stop order by the Building Department. After Defendant rested without calling any witnesses he renewed a motion to dismiss against Defendant James McGuire on the grounds that the information was jurisdict- ionally defective within the meaning of Criminal Procedure Law Section 100.40(1) and the People had not proven its case beyond a reasonable doubt. Building Permit no. 11439 Z was duly issued to Defendant James McGuire to construct a new foundation with cellar under existing storage building. The information charges Defendant James McGuire with installing new sheet rock, adding new wind- ows and (replacing same) front door, rebuilding the front porch and adding a deck with railing on the rear of the said building in violation of Section 100-141 of the Southold Town Code. The second count charges Defendant, James McGuire with f~ilure to stop all of the additional work not authorized by the said building permit. Defendant's motion is addressed simply to the question of whether or not the statute requires a permit to replace windows, install sheet rock, a new front door and rebuilding the front porch, all in replacement of what was already there. The People contend the statute requires a permit to replace windows, install sheet rock, a new front door and rebuilding a porch and that the same constitutes renovating the building. (1) continuation of People V. McGuire Dkts 495 & 496 The thrust of Defendant James McGuire's motion to dismiss is that the information charges him with "renovating" whereas the Town Ordinance, Section 100-141 delineates only and inter alia ".... erected, reconstructed or structurally altered..." and nowhere in the statute is renovating made illegal. Section 100-141 of the Town Ordinance requires a person to apply for a building permit and then sets forth when he must. Nowhere does the word renovating appear in the statute. The penalty for violating the section provides for a fine .and/or imprisonment or both. In the case of People V. McGuire 5 NY(2) 523, the Court of Appeals of this state he~d that an information must allege that the Defendant has committed acts as defined in the statute. The claim by Defendant herein is that Defendant is charged with renovating and the statute does not require a permit for same. The information herein alleges acts of renovation which are not prohibited by the statute. The proceeding being criminal in nature is hereby construed strictly against the maker of same. This Court holds there is a difference between the meaning of the words and cannot agree that renovating, reconstruction and restoration are synonymous. See Ballentine's Law Dictionary, Goodyear Shoe Machinery V. Jackson 112 Fed.146. It is to be noted that Defendant moves under Criminal Procedure Law Section 100.40(1) in that the information herein does not conform to the requirements as set forth in Section 100.15 of the Criminal Procedure Law. It must be remembered that an accusatory instrument which is our basic trial tool requires the most detail. It is necessary that it state the offense charged and the partic- ular facts establishing each and every element of that offense. People V. Hall 425 NYS(2) 56. The Court of Appeals in the Hall case stated at Page 57: "It is a fundamental and non-waivable jurisdictional prerequisite that an information state the crime with which the Defendant is charged and particular facts constituting that crime." In the instant case the Defendant is charged with renova- ting without a building permit. The Defendant contends there is no such offense in the Town Ordinance. Section 100.15 of the Criminal Procedure Law sets forth with certainty the form and content of the accusatory statement. It states that it must (a) charge an offense or offenses (b) recite evidentiary facts sworn to by the complainant supporting or tending to support the charges. (2) continuation of People V. McGuire DKTS 495 & 496 At the most Defendant is saying that the accusatory inst- rument is alleging evidentiary facts (without conceding that it does so) of an offense which does not exist in the Code of the Town of Southold, to wit: renovating is not an offense listed or set forth in the said Code. A defendant must be charged in the information with a particular offense actually committed; People V. Hendricks 232 App. Div. 186,and a failure to designate the proper statutory section and offense designated is not a mere irregular- ity. People V. Law 431 NYS (2) 648, People V. Fletcher Gravel Inc. 368 NYS(2) 392. In People V. Law the Court stated at page 649: "Another Court of this state held that a count other than a lesser included charge may not be added after the People have rested, although the charge sought to be added was adequately supported in the factual part of the accusatory instrument. People V. Davis 82 Misc. (2) 44 370 NYS(2) 328." (Underlining added) The accusatory part of the information should be explicit as to the name of the violation for which Defendant is charged. People V. Brickel 67 Misc. (2) 848 NYS (2) 28. - Defendant is not charged with erecting, reconstructing, restoring or structurally altering which are the words of the Southold Town Code, but rather he is charged with renovating the building. The information charging the Defendant with renovating the ~uilding is hereby dismissed pursuant to Section 100.40(1) oft~he ~riminal Procedure Law as being defective for the reasons herein before stated and in addition and inter alia it fails to state facts giving the essential elements of the offense charged. SO ORDERED: September 13, 1983 Southold New York COPIES TO: James McGuire, Defendant Richard J. Cron, Esq. for Defendant Richard F. Lark, Esq. for the People Southold Town Building Department (3) TOWN OF SOUTItOLD OFFICE OF BUILDING INSPECTOR P.O. BOX 728 TOWN HALL SOUTHOLD, N.Y. 11971 TEL. 765-1802 July 2, 1984 Supervisor Francis Murphy ~' TO: FROM: Exec. Admin. Victor Lessar~ SUBJECT:Certificate of Occupancy for James Mc Guire Mr. Mc Guire had requested a C.of O. for a "cottage" on the front yard of his property. By telephone conversation with Mr. Mc Guire, I informed him that the building in question was an accessory building, by agreement of the permit issued him for a new one family dwelling (original agreement was to have this dwelling destroyed so he could build a new dwelling). A fisal inspection would have to be made before any C. of O. could be issued and he agreed. On final inspection (Fermit was for a ~6w foundation under an existing accessory building) the inspector observed electrical work had been done in the cellar. I notified Mr. Mc Guire that an underwriters certificate wouid be required approving this work before a C. of O. could be is- sued for this accessory~building. S~nce that time there has been no response to this department or has any underwriters been submitted. VL:hd TOWN OF SOUTHOLD RFD1 Box 1066 Mattituck, N.Y. 11957 June 27, 1982 Supervisor Francis J. ~3_~phy Town of Southold Maku Rd. Southold, N.Y. 11971 Dea~ M~. MurphY= ~ · ~On April 13, I sent you ~' ~letter outlining various p~oblems I am having with the Southold Te~m Building Department. Your response on May 8 stated that you had ordered a l~ll =eport on the matters raised and as soon as this report was =eceived by you and reviewed by the town attorney I would be hea~ing from .you. To date, I have not received any fu_rthur co~espondence regarding these issues. Please advise if this ~eview has been concluded and if so, when I might receive a reply to my letter of April 13. Thank you for your help and understanding in this matter. Very truly you~s~ bkr 84-237 To be argued by: RICHARD F. LARK Fifteen Minutes SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : SECOND DEPARTMENT NINTH AND TENTH JUDICIAL DISTRICTS THE PEOPLE OF THE STATE OF NEW YORK : Appellant, against JAMES McGUIRE, a/k/a JAMES R. McGUIRE, and MARY McGUIRE, a/k/a MARY V. : McGUIRE, Defendants-Respondents. ................... X APPELLANT'S BRIEF RICHARD F. LARK, ESQ. Special Assistant District Attorney of Suffolk County Main Road - P. O. Box 973 Cutchogue, NY 11935 (516) 734-6807 TABLE OF CONTENTS PAGE Statement Pursuant to CPLR 5531 ......................... 1 Decision, So Ordered, dated September 13, 1983 .......... 3 Questions Involved ...................................... 6 Applicable Provisions of Southold Town Zoning Code ...... 7 Statement of Facts ...................................... 8 POINT THE TRIAL COURT'S DISMISSAL OF THE INFORMATION ON THE GROUNDS ITS WAS DEFECTIVE PURSUANT TO CPL §100-40(1) DOES NOT BAR AN APPEAL BY THE PEOPLE ........ 12 POINT II AN INFORMATION IS NOT DEFECTIVE BECAUSE IT DOES NOT CHARGE THE DEFENDANTS WITH THE EXACT WORDS CONTAINED IN THE STATUTE .................... 15 POINT III THE TRIAL COURT SHOULD HAVE ADMITTED INTO EVIDENCE PEOPLE'S EXHIBIT 6 FOR IDENTIFICATION .............................. 23 CONCLUSION .............................................. 26 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : SECOND DEPARTMENT NINTH AND TENTH JUDICIAL DISTRICTS ................... X THE PEOPLE OF THE STATE OF NEW YORK Appellant, against : JAMES McGUIRE, a/k/a JAMES R. McGUIRE, and MARY McGUIRE, a/k/a MARY V. : McGUIRE, Defendants-Respondents. ................... X STATEMENT PURSUANT TO CPLR 5531 1. The docket numbers of the case below are 495 and 496. 2. The full names of the original parties are The People of the State of New York, James McGuire, a/k/a James R. McGuire, Mary McGuire, a/k/a Mary V. McGuire. There have been no changes in the original parties nor have there been any changes in the attorneys.representing the parties. 3. The action was commenced with the filing of an accu- satory instrument in the Justice Court of the Town of Southold, County of Suffolk and State of New York, on December 29, 1982, charging the defendants with the following violations: an existing building the Town of Southold; doing additional work than allowed by permit (Section 100-141 of the Code of and failing to comply with an order of the building inspector to stop all work until obtaining an amended building permit (Section 100-143 of the Code of the Town of Southold). 4. Defendants moved for dismissal of the charges against them on the grounds the People failed to establish a prima facie case and the information was defective. The trial court rendered a Decision, So Ordered, dated September 13, 1983, which dismissed the information as being defec- tive. The People made a motion to reargue and the trial court denied this motion by Order dated March 23, 1984. 5. The appeal is from said Decision, So Ordered, dated September 13, 1983. 7. The appeal is on the original record and typewritten briefs. JUSTICE COURT OF TEE TOWN OF SOUTHOLD COUNTY OF SUFFOLK, NEW YORK THE PEOPLE OF 'THE STATE, OF NEW YORK + -against- + JAMES MC GUIRE a/k/a jAMES R. MC GUIRE and + MARY MC GUIRE, a/k/a MA/{Y V. MC GUIRE, + DEFENDANTS DECISION ON MOTION AFTER TRIAL Richard F. Lark, Special Assistant District Attorney for the People. Richard J. Cron, for Defendants This case came on for trial on June 3, 1983. After the conclusion of the People's case, the Court granted Defendant's motion to dismiss the case against the Defendant Mary McGuire on the grounds that said Defendant never signed the application for the building permit nor was she ever served with a stop order by the Building Department. After Defendant rested without calling any witnesses he renewed a motion to dismiss against Defendant James McGuire on the grounds that the information was jurisdict- ionally defective within the meaning of Criminal Procedure Law Section 100.40(1) and the People had not proven its case beyond a reasonable doubt. Building Permit no? 11439 Z was duly issued to Defendant James McGuire to construct a new foundation with cellar under existing storage building. The information charges Defendant James McGuire with installing new sheet rock, adding new wind- ows and (replacing sa~e) front door, rebuilding the front porch and adding a deck with railing on the rear of the said building in violation of-Section 100-141 of the Southold Town Code. The second count charges Defendant, James McGuire with failure to stop all'of 'the additional work not authorized by the said building permit. Defendant's motion is addressed simply to the question of whether or not the statute requires a permit to replace windows, install sheet rock, a new front door and rebuilding the front porch, all in replacement of what was already there. The People contend the statute requires a permit to replace windows, install sheet rock, a new front door and rebuilding a porch and that the same constitutes renovating the building. 3 (~) continuat.ion of People V. McGuire Dkts 495 & 496 The thrust of Defendant James McGuire's motion to dismiss is that the information charges him with "renovating" whereas the Town Ordinance, Section 100-141 delineates only and inter alia " .... erected, reconstructed or structurally altered..." and nowhere in the statute is renovating made illegal. Section 100-141 of the Town Ordinance requires a person to apply for a building permit and then sets forth when he must. Nowhere does the word renovating appear in the statute. The penalty for violating the section provides fora fine and/or imprisonment or both. In the case of' People V. McGuire 5 NY(2) 523, the Court of Appeals of this state herd that a~ information must allege that the Defendant has committed acts as defined in the statute. The claim by Defendant herein is that Defendant is charged with renovating and the statute does not require a permit for same. The information herein alleges acts of renovation which are not prohibited by the statute. The proceeding being criminal in nature is hereby construed strictly against the maker of same. This Court holds there is a difference between the meaning of the words and cannot agree that renovating, reconstruction and restoration are synonymous. See Ballentine's Law Dictionary, Goodyear' Shoe Machinery V. Jackson 112 Fed.146. It is to be noted that Defendant moves under Criminal Procedure Law Section 100.40(1) in that the information herein does not conform to the requirements as set forth in Section 100.15 of the Criminal Procedure Law. It must be remembered that an accusatory instrument which is our basic trial tool requires the most detail. It is necessary that it state the offense charged and the partic- ular facts establishing each and every element of that offense. People V. Hall 425 NYS(2) 56. The Court of Appeals in the Hall case stated at Page 57: ~' "It is a fundamental and non-waivable jurisdictional prerequisite that an information state the crime with which the Defendant is charged and particular facts constituting that crime." In the instant case the Defendant is charged with renova- ting without a building permit. The Defendant contends there is no such offense in the Town Ordinance. Section 100.15 of the Criminal Procedure Law sets forth with certainty the form and content of the accusatory statement. It states that it must (a) charge an offense 'or offenses (b) recite evidentiary facts sworn to by the complainant supporting or tending to support the charges. (2) ... continuation of People V. McGuire DKTS 495 & 496 At the most Defendant is saying that the accusatory inst- rument is alleging evidentiary facts (without conceding that it does so) of an offense which does not exist in the Code of the Town of Southold, to wit: renovating is not an offense listed or set forth in the said Code. A defendant must be charged in the information with a particular offense actually committed; People V. Hendricks 232 App. Div. 186,and a failure to designate the--proper statutory section and offense designated is not a mere irregular- ity. People V. Law 431 NYS (2)' 648, People V. Fletcher Gravel Inc.- 368 NYS(2) 393. In PeoPle V. Law the Court stated at page 649: "Another Court of this state held that a count other than a lesse~ included charge may not be added after the People have rested, although the charge sought to be added was Adequately s_~upported in the factuall a~ of the accusatory instrument. People V. Davl"~--8~ (2) 44 370 NYS(2) 328." (Underlining ~dded) The accusatory part of the information should be explicit as to the name of the violation for which Defendant is charged. People V. ~rickel 67 Misc. (2) 848 NYS (2) 28. Defendant is not charged with erecting, reconstructing, restoring or structurally altering which are the words'of the Southold Town Code, but rather he is charged with renovating the building. The information charging the Defendant with renovating the building is hereby dismissed pursuant to Section 100.40(1) of the ~riminal Procedure Law as being defective for the reasons herein before stated and in addition ~nd-inter alia it fails to state facts giving the essential elements of the offense charged. : SO ORDERED: September 13, 1983 Southold New ¥o=k COPIES TO: SOUTHOLD TOWN JUSTICE James McGuire, Defendant Richard J. Cron, Esq. for Defendant Richard F. Lark, Esq. for the People Southold Town Building Department (3) -' SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : SECOND DEPARTMENT NINTH AND TENTH JUDICIAL DISTRICTS THE PEOPLE OF THE STATE OF NEW YORK Appellant, : against JAMES McGUIRE, a/k/a JAMES R. McGUIRE, and MARY McGUIRE, a/k/a MARY V. : McGUIRE, Defendants-Respondents. ................... X 6 BRIEF SUBMITTED FOR APPELLANT QUESTIONS INVOLVED 1. Are any further proceedings against the defendants- respondents prohibited by double jeopardy principles? Was not considered by the Court below. 2. Is the information c~arging defendants-respondents with violations of the Southold Town Zoning Code defective? The Court below held the information defective pursuant to CPL §100.40(1). 3. Did the trial court commit error in excluding from evidence People's Exhibit 6 for Identification? The Court below held this Exhibit did not comply with the best evidence rule. APPLICABLE PROVISIONS OF SOUTHOLD TOWN ZONING CODE 7 Section 100-141. Building permits. No building in any district shall be erected, reconstructed, restored or structurally altered without a building permit duly issued upon appli- cation to the Building Inspector. No building permit shall be issued unless the proposed con- struction is in full conformity with all the provisions of this chapter and the provisions of all other applicable laws, ordinances, rules and regulations. Any building permit issued in viola- tion of the provisions of this chapter shall be null and void and of no effect without the necessity for any proceedings, revocations or nullification thereof; and any work undertaken or use established pursuant to the issuance of a permit in violation of the provisions of this chapter shall be unlawful. Section 100-143. Stop orders. Whenever the Building Inspector has reasonable grounds to believe that work on any building or structure is being prosecuted in violation of the provisions of the applicable law, ordinances or regulations, or not in conformity with the pro- visions of an application, plans or specifications on the basis of which a building permit was issued, or in an unsafe and dangerous manner, he shall notify the owner of the property, or the owner's agent or the person performing the work, to suspend all work, and any such persons shall forthwith stop such work and suspend all building activities until the stop order has been rescinded. Such order and notice shall be in writing and shall state the con- ditions under which the work may be resumed, and may be served upon a person to whom it is directed either by delivering it personally to him or by posting the same upon a conspicuous portion of the building under construction and sending a copy of the same by certified mail. STATEMENT OF FACTS The essential facts in this case are not disputed since at the trial the defendants did not call any witnesses or offer any evidence to contradict the testimony of the People's witnesses. The defendants, James McGuire and Mary McGuire, own the property where the charged violations occurred by virtue of a deed dated December 28, 1976. (Ex. 4)* Located on the defendants' property are a large one-family dwelling, a greenhouse, and a small storage building which is the sub- ject matter of the information charging the defendants with violations of the zoning code. (8)** The defendant, James McGuire, on October 28, 1981, received from the Town of Southold a building permit "to construct a new foundation with cellar under existing storage building." (8, 12; Ex. 2 The building permit was issued on the defendant's applica-. tion dated October 16, 1981 Wherein defendant, requested a permit to replace the existing basement with a new waterproof, cement block basement with a proper footing. (Ex. 2) On July 14, 1982, the building inspector, Curtis W. Horton, inspected the defendant's premises and found there had been additional construction work to the storage building. This construction work consisted of installation 8 *Numbers in parentheses preceded by Ex. refer to Exhibits before the lower court. **Numbers in parentheses refer to page numbers of the transcript of the trial before the lower court. of: a front door frame, front door, adding new windows, as well as new construction work in the rear of the building. (17-19) As a result of this inspection, the building inspector determined: the construction work being done on defendants' storage building exceeded the work authorized by the issued building permit; and the additional work would require an amendment to the existing building permit. The building inspector then issued an order to remedy violation ordering the defendants to stop work at once. (19; Ex. 3) The order to remedy violation also contained a notation that "work may resume upon approval of building inspector subject to submission of plans & ammendment of permit." The order to remedy violation was mailed by certified mail to defen- dant, James McGuire, and received by defendant, Mary McGuire, on July 15, 1982. (12-13; Ex. 3) Subsequently, the defendant, James McGuire, on or about October 25, 1982, applied to the Southold Town Building Department for a building permit for the six by fifteen foot wooden deck located at the rear of this storage building. This application was denied by the building department on November 8, 1982 (Ex. 6 for identification, not admitted in evidence because trial court ruled the exhibit violated the best evidence rule.) (73) Thereafter, on November 16, 1982, the complainant building inspector returned to the premises discovering octagon windows being installed on the westerly portion of the building and a wooden deck was being constructed at the rear of the storage building. (24, 25) The building inspector also inspected the premises on November 22, 1982 and found roof, plumbing, and attic vents being installed in this storage building. (25) As a result of these on-site property inspections by the complainant building inspector, he filed an information on December 29, 1982 in the Southold Town Justice Court containing two counts. In count 1 of the information the building inspector accused the defendants of a violation of Section 100-141 of the Southold Town Zoning Code charging the defendants with doing work in addition to the work allowed previously by the existing building permit by installing new sheetrock, adding new windows, rebuilding a front porch and adding a deck with a railing on the rear . of the storage building. In'Count 2 the building inspector accused the defendants of a violation of a previously issued order to remedy violation dated July 14, 1982 since the defendants were continuing to make renovations and perform construction work subsequent to July 14, 1982, without obtaining an amendment to the existing building permit. The matter was tried in the Town of Southold Justice Court on June 3, 1983. At the conclusion of the People's 10 case, the defendants made a motion for dismissal on the grounds the People failed to establish a prima facie case and the information was defective in that it did not use the language of the zoning code and therefore did not charge the defendants with any violations. The Court denied the motion, the defendants then rested and renewed their prior motion. The lower court reserved decision and by a decision dated September 13, 1983, So Ordered, dismissed the infor- mation pursuant to CPL Section 100.40(1) as being defective. A notice of appeal of the court's order dated October 11, 1983 was filed with the Clerk of Justice Court, Town of Southold, on October 11, 1983. Since the lower court's decision discussed the restora- tion work done to defendants' storage building, but makes no mention of the new construction working such as the deck addition, the People in an effort to clarify the trial court's decision, made a motion for reargument by way of notice of motion dated October 11, 1983. The motion came on to be heard before the trial court on November 18, 1983 and the court denied the motion by an order dated March 23, 1984. - 11 POINT I THE TRIAL COURT'S DISMISSAL OF THE .INFORMATION ON THE GROUNDS IT WAS DEFECTIVE PURSUANT TO CPL §100-40(1) DOES NOT BAR AN APPEAL BY THE PEOPLE The trial court in its decision, So Ordered, dismissed the information pursuant to CPL §100-40(1), as being defec- tive. The lower court's dismissal of the information in this case is not determinative of the guilt or innocence of the defendants. Although the lower court was not specific, the dismissal is likened to a motion under CPL §170.30(1)(a). This latter section refers to CPL §170.35 which serves as the predicate for dismissal of an information for legal insuf- ficiency as not meeting the requirements of CPL §100.40. The trial court's decision, So Ordered, is not in the. nature of a trial order of dismissal pursuant to CPL §290.10 since the trial court did not dismiss the information on the basis of legal insufficiency of the evidence. Rather, it was on the basis the information was defective pursuant to CPL §100-40(1). The lower court should not have entertained, much less granted, the defendants' motion in light of CPL §255.20. CPL §255.20 requires all such motions to be served or filed within 45 days after arraignment or before trial. CPL §255.20(3) allows the trial court to grant an extension in 12 the interest of justice or for good cause shown. CPL §170.30(3) contains similar provisions. The defendants in making their oral motion after the conclusion of the People's case did not advance any reasons for the delay in the motion nor did the trial court address this issue or give any reasons for entertaining the motion. This is par- ticularly applicable in this case since the defendants did make a pre-trial motion for discovery and a bill of par- ticulars. The information was improperly dismissed, and the trial court should not have granted defendants' motion. In effect, defendants by failing to make a timely motion had waived any claimed defects in the information. People v. Key 45 N.Y. 2d 111. Once the trial commences and a witness is sworn, generally jeopardy attaches pursuant to the provisions of CPL §40.30 l(b). If defendants made a motion to dismiss the information prior to trial and it was granted, then the information could have been amended to cure whatever defect the trial court found in dismissing same. The People would have been in a position to either appeal or lay a new infor- mation based on the court's ruling. Assuming arguendo there are defects in the information, then the lower court in granting defendants' motion should have authorized the People sufficient time to amend the information to cure wha%- 13 ever defects the court found contained therein. CPL §40.30(4) In reading the trial court's decision certainly the defects claimed to have been found by the court are subject to amendment prior to trial. The nature of the trial court's decision leads to the conclusion there was no adju- dication by the court on the merits of the facts and evi- dence presented as to the proof of innocence or guilt of the defendants, but only that the information was defective. Using the functional test and the reasoning of the Court of Appeals in People v. Key, 45 N.Y. 2d 111, and the United States Supreme Court in United States v. Scott, 437 U.S. 82, an appeal by the People in this case is permitted, where there is no adjudication on the facts addressed to the guilt or innocence but only on a determination the accusatory instrument was defective. In reading the trial court's decision, it is clear the lower court did not make a factual determination on inno- cence favorable to defendants, nor make a decision on any of the evidence presented, but only on the sufficiency of the information itself. Therefore, there is no violation of any of the defendants' rights as protected by the double jeopardy principles. The defendants by waiting for the conclusion of the People's case to make this motion instead of doing so before trial are not prejudiced by this appeal or a retrial of this matter. 14 POINT II AN INFORMATION IS NOT DEFECTIVE BECAUSE IT DOES NOT CHARGE THE DEFENDANTS WITH THE EXACT WORDS CONTAINED IN THE STATUTE In spite of the trial court's decision to the contrary, the information which is the subject of this appeal, when read in its entirety, charges the defendants with two viola- tions of the Southold Town Zoning Code: Count %1 A viola- tion of the existing Building Permit 11439Z by doing work in excess of that allowed by the issued permit; and Count #2 By failing to comply with an order of the building inspector dated July 14, 1982, which ordered the defendants to stop all work until an amended building permit was obtained. The building inspector describes some of the proscribed work performed by the defendants both in the information and his testimony as "renovations". In particular, he testified the additional construction not covered by the existing building permit was the installation of a new front door frame, front door, new windows, and new construction in the rear of the building like an addition. (18-19) The building inspector further testified that on subsequent inspections of the premises on November 16 and 22, 1982 he found octagon windows on the westerly end of the building installed and a wooden deck in the rear of the building being constructed, as well as roof, plumbing and attic vents having been installed. (24-25) 15 The trial court classified in its decision this extra work as "renovations" and held since the statutory language of "erecting, reconstruction, restoration or structural alterations" were not utilized the defendants were not charged with an offense under the Southold Town Zoning Code. It is respectfully submitted the trial court miscon- strued the accusatory instrument in arriving at its decision because at the conclusion of the People's case the court stated in response to defendants' motion at page 90: 16 "I think we must look at this in concept, not just the definition of one word in the accusatory instrument. We have rebuilding, renovations, installing, adding and if we carry to extremes the way Mr. Cron says, you could reconstruct an entire house and not require a permit. I don't think the law requires that. I think he has enough in here. He says, "renovation." He says, "rebuilding." He says, "installing." He says, "adding," and I think the whole concept tells us what was going on here. Clearly, he was repairing, rebuilding. I think the concept spells out enough and apprises the defendant that he was doing some- thing without a permit, if the facts prove he was, in fact., doing it." The lower court in its decision never reached a factual determination of guilt, only that the information was defec- tive. It is submitted the trial court erred in stating the defendants were charged with renovating rather than a viola- tion of Section 100-141 in performing work which was not encompassed by the building permit. When Section 100-141 of the Southold Town Zoning Code and the information are read in their entirety, it is clear the building inspector was charging defendants with performing additional work not encompassed by the existing permit. (Ex. 2) It is submitted that the information in the case at bar complies with the requirements of CPL Sections 100.40 and 100.15. The net effect of these two sections is to require an information to state both a reasonable cause and a legally sufficient case because as stated in CPL §100.10(1) the information may serve as a basis for commencement of a criminal action and for prosecution thereof in a local cri- minal court. It is fundamental a defendant must be informed of the nature and cause of accusation against him, and the infor- mation must set forth the required elements of a criminal offense. If the facts alleged may all be true and yet constitute no offense, the information will be insufficient. The accusation must include a characterization of the offense and such description of the particular acts alleged ~ to have been committed by the defendants to enable the defendants to properly defend against the accusation. Further, the description of the offense must be sufficiently complete to accord the accused his constitutional right of due process of law. People v. Schultz, 301 N.Y. 495. 17 Granted, informations are to be construed strictly against the People, however, there should be a reasonable interpretation of the language employed in the information. Words should be construed in their usual acceptance in the common language. A word such as "renovation" is to be construed where the whole information makes it clear as how it was used and how the defendants understood it. What is stated in the information must be read in light of the cir- cumstances under which it is found. People v. Bogdanoff, 254 N.Y. 16. The complainant building inspector used the words "renovating" in describing the additional construction that violated the outstanding building permit by stating in the factual part of the information: ...in addition to replacing the old foundation in basement, defendants have begun renovating the building by installing new sheetrock, adding new windows and front door; rebuilding the front porch and adding a deck with a railing on the rear of the storage building.n. If the language in the information is general then a bill of particulars can aid in determination of what was intended by the language used. This was accomplished in the instant case. In other words, the test is not whether the information should have been more artfully or precisely drawn, but whether it states elements of an offense intended to be charged and adequately apprises the defendants of that 18 which they must be prepared to meet. The cases relied upon by the trial court in dismissing the information are not applicable to the case at bar. In People v. McGuire, 5 N.Y. 2d 523, defendants were convicted of unlawfully and willfully possessing obscene and indecent books and pictures. However, the conviction was reversed on appeal because the information did not contain an allegation that the defendants' possession was "with intent to sell" which was a necessary statutory ingredient to charge the defendants with criminal possession. In People v. Hall, 48 N.Y. 2d 927, defendant was charged with an harassment viola- tion. The conviction was reversed because the information did not specify that the defendant's activities were done with "intent to harass, annoy or alarm" which are essential to make the defendant's conduct criminal. In People v. Hendricks, 232 A.D. 186, the defendant was charged and found guilty of unlawful possessio9 of policy slips, however, the papers found in defendant's possession were not actually policy slips but were collection sheets showing amounts of money collected by different policy collectors. Since the actual records in defendant's possession were not shown to have any connection with the actual policy game, his convic- tion was overturned. In People v. Law, 106 Misc. 2d 351, the court held pursuant to CPL §100.45(3) an accusatory 19 instrument may be amended any time before the commencement of a trial and not after the People and the defendant have rested their case. People v. Fletcher Gravel Co.,Inc., 82 Misc. 2d 22, involved the question of expansion of a non- conforming use and the court held the information to be defective because the accusatory part of the information did not allege with particularity the offense being charged and the factual part of the information did not contain any non- hearsay, factual allegations of an evidentiary nature to support the charge. In People v. Brickel, 67 Misc. 2d 848, the court dismissed the information for insufficiency because the factual part of the information was conclusory in form, unsupported by any evidentiary facts. In reviewing the information which is the subject matter of this appeal, it is respectfully submitted it complies with CPL §100.15. The accusatory part of the information charges the defendants with two violations of the Southold Town Zoning Code, to-wit: Section 100-141 and Section 100-143. The factual part of the information contains evi- dentiary facts based on the personal knowledge of the complainant building inspector which support these charges. The characterizations of the additional work as renovations does not make it a charge of renovation.per se and the information defective. 20 The trial court in its decision is holding the infor- mation used the word "renovation" rather than the exact words of the statute "erecting, reconstructing, restoring or structurally altering" and is therefore defective. The latter words cited by the court are not necessary statutory ingredients to charging the defendants with a violation of Section 100-141 of the Southold Town Zoning Code. It is submitted the defendants were charged with a violation of the building permit by performing additional work which was not covered by the building permit. (Ex. 2) The building permit issued to the defendants was for the purpose of constructing a new foundation with cellar under existing storage building. The defendants are accused of doing additional work not covered by this building permit and not as the lower court held "renovating". In reviewing the applicable zoning code sections, the cases cited by the court are also distinguishable in that in the case at bar the information spells out in detail, based on the personal knowledge of the building inspectors, exactly what addi- tional work the defendants are accused of performing. The applicable sections of the Criminal Procedure Law, and the judicial decisions thereunder, do not require an information must be drawn with the exact verbiage of the statute. As stated in People v. Schultz, 301 N.Y. 495, the 21 purpose and function of the information is to identify the charges against the accused so that the conviction or acquittal may prevent a charge from a subsequent offense and also to notify the defendant of the charge pending against him so he may prepare his defense. The defendants in this matter do not deny they were apprised of what conduct constituted their wrongdoing, and therefore the information cannot be attacked as being fatally defective because it did not contain one or all of the words restored, reconstructed." People v. 1031, affd. 307 N.Y. 736. "structurally altered, Paolillo, 15 Misc. 2d The information should, and does in the instant case, set forth the essential elements of the offense charged without any further necessity to particularize the evidence. Here the defendants knew exactly what the pending charges were so they could adequately prepare for trial. This is especially true when the bill of particulars is read in con- junction with the information. Besides, the language "restore" and "renovate" are virtually synonymous as seen in looking at any recognized dictionary of the english language. The non-use of the exact statutory language does not in and of itself render the information jurisdictionally defective. If the lower court decision~ So Ordered, is upheld on appeal, then the defendants as well as any other citizen of the Town of Southold could "renovate" existing buildings on their premises without a building permit. 22 POINT III THE TRIAL COURT SHOULD HAVE ADMITTED INTO EVIDENCE PEOPLE'S EXHIBIT 6 FOR IDENTIFICATION 23 The trial court, using the rationale of the best evi- dence rule, refused to admit People's Exhibit 6 for iden- tification in evidence. (73) People's Exhibit 6 for identification consists of three documents: 1. Notice of Disapproval dated November 8, 1982 addressed to James R. and Mary V. McGuire by Edward Hindermann, Building Inspector of the Town of Southold. 2. Copy of application for building permit for a six by fifteen foot deck dated October 28, 1982. 3. Survey of property showing location of proposed deck. The best evidence rule requires whenever a litigant seeks to prove the contents of a writing, the original writing must be produced or in its absence must be accounted for satisfactorily. The testimony of Building Inspector Edward Hindermann did in fact satisfactorily account for the absence of the original document when he testified after he reviewed the original he returned it to the defendant, James McGuire. (56-57) In criminal proceedings, the People are prohibited from demanding the defendants produce the origi- nal. In fact, this practice has been condemned by the Court of Appeals as violating the defendants'constitutional rights to remain silent and refusing to make any statement which may have a bearing upon the question of guilt. People v. Gibson, 218 N.Y. 70. Further, the People in a criminal proceeding~cannot even serve a notice to produce upon the defendants' attorney for any allied papers having a bearing on guilt. People v. Minkowitz, 220 N.Y. 399. The Order to Remedy Violation was dated on July 14, 1982. (Ex. 3) There is no evidence the defendants performed any work on the storage building after that date until November 16, 1982 when the building inspector found the defendants had performed additional work. (25-26) The whole purpose of introducing People's Exhibit 6 for identification was to show the defendants had knowledge of this order to remedy violation (Ex. 3) which ordered the defendants to stop all work until they obtained approval from the building inspector and an amendment to their existing building per- mit. The application for a building permit to construct the deck was an admission on the defendants' part that a proper permit must be obtained to cure one of their outstanding violations. When this permit application was disapproved on November 8, 1982, the defendants continued to perform the work without the benefit-of a proper building permit in violation of the order to remedy violation. The subsequent inspections by the building inspector on November 16 and 22, 1982, indicated the defendants were completing the construc- 24 tion to the storage building without the benefit of a proper building permit. The point being, People's Exhibit 6 was not offered to prove the contents of the writing but to show that the defendants in fact filed a building permit application with the building department in an attempt to cure one of their outstanding violations. Further, the work was performed subsequent to the notice of disapproval by the building department indicating the construction at defendants' pro- perty was done with their full knowledge. The court in People v. Campbell, 69 Misc. 2d 808, at page 810 stated: 25 The best evidence rule applies only when a party seeks to prove the contents of a writing. It has no application where a party seeks to prove a fact which has an existence independently of any writing, and this is true even though a writing exists evidencing that fact. (Richardson, Evidence [9th ed.], §549) The fact the defendants continued to build the deck at the rear of the premises and complete the other portions of the construction was established by Building Inspector Curtis Horton when he testified that on inspection of the premises on November 16, 1982 he "noticed the deck being worked on". (25) Also, People's Exhibit 5 pictorially shows the wooden deck and other improvements to the storage building which were done after the order to remedy violation dated July 14, 1982 was issued by the building department. (Ex. 3) It is submitted the best evidence rule does not apply in the case at bar and People's Exhibit 6 for identification should have been admitted into evidence. CONCLUSION For the foregoing reasons, the decision, So Ordered, dated September 13, 1983, should be reversed, the infor- mation reinstated, and the case remanded to the lower court for further proceedings. 26 Dated: Cutchogue, New York August 10, 1984 Respectfully submitted, RICHARD F. LARK Special Assistant District Attorney of Suffolk County APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. ROBERT J. DOUGLASS JOSEPH H. SAWICKI TO: FROM: DATE: SUBJECT: Southold Town Board of Appeals MAIN Rr'IAD- E~TATIE RrlAD 2=, E~r'IUTHOLD, L.I., N.Y, ll9?~l TELEPHONE (516) 765-1809 Vic Lessard, Building Department-Administrator Jerry Goehringer, ZBA Chairman May 3, 1985 Your Memo dated April 29, 1985 - McGuire Appeal #2669 In response to your recent memorandum for a clarification of the word "goods" as used in the board's decision under Appeal No. 2669, we hope that the following will give a better understanding of the intent of this condition: "Those items or products which are the direct result of the cultivation of the soil for food products or other useful or valuable growths of the field or garden or noncommercial nursery or greenhouse, which may be permitted in this zoning district for sales on this property." TO N OF $OUTHOLD OFFICE OF BUILDING INSPECTOR P.O. BOX 728 TOWN HALL SOUTHOLD, N.Y. 11971 TEL. 765-1802 April 29, 1985 TO: FROM: SUBJECT: Z .B.A. Exec. Admin., Victor Lessard Mc Guire' s Portico Request an interpretation of a a word in Z.B.A. decision on the Portico. Judge Tedeschi would like to clarify the word "goods". Southold Town Board of Appeals MAIN ROAD- STATE ROAD 25 SOUTHOLD, L.I., N.Y. 11971 TELEPHONE (516) 765-1809 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. ROBERT J. DOUGLA$S JOSEPH H. SAWICKI MEMORANDUM FOR THE RECORD: Official ZBA file missing of Appeal No. 2669 James portico addition of greenhouse as rendered 2/28/80. McGuire Barbara T. and Linda K. searched in all ZBA file Building Department cabinets without luck. Memo sent to Richard Lark (as special counsel for for copies of their documents. 5/1/85 and a few building dept.) Building Appeal~ Board Sonthold Town H~ll Southold, New York 11971 RRI Box 106B Manor Hill Lane Mattituck, N.Y. 11952 August 19, 1983 Ge~emen: I own land adjacent to the McG~es. I am writing this letter in opposition to any f~her flaunting of the codes, covenants and rest~ctions that the Town or thei~ deed place on James and Mary McGu~e. The track record of the McGui~es is th~they do wh~ever they feel ~ike doing andhope th~ the Town has neither the will nor resoarces to stop them. Th~ past spring trucks wi~h plates from as far away as Florida were delivering stock for them to sell! The McG~es knew this was not zoned for b~iness when they bought the land; there is no doubt they are running one. Further I've heard from people friendly to the McGui~es and the people "re~ing" the b~iness that intruth the business has been sold, not rented. This would be a direct violation of the deed restriction. Now I und~tand the McGu~es wish to change a storage building i~to a rentable house. On the application for a building per, it even the McG~es l~ted the building, and ~ts improvements, as storage fa~es. The land they own permits a single domicile; farther, the land was never to be sub-divided. The McGu~e's request to the Appeals Board should be unanimously denied. Sincerely, Brian Sheehan B~ilding Department Board of Supervisors ( ~'~N;A Chairman/Ecmbers OopieS ( ) ~.-?!i-ant er h!~ Agent ~:~.~ Memorandum from.... Southoid Town Board of Appeals TOWN HALL, SOUTHOLD, N.Y. 11971 765-1809 To: Richard F. Lark, From: Jerry Goehringer Date: 5/1/85 Esq. Our official file in the matter of James McGuire, Appeal No. 2669 (1979-80) has been missing. May we ask you to check to see if the file has been inadvertently left at your office? Also, may we have copies of those documents which you may have that would have pertained to the 1979-80 ZBA file so that we could start a second-duplicate file. Thanks for your help. ROBERT W. TASKER ]own Attorney OFFIC] ~ %~'~ORNEY 425 MAIN ST. GREENPORT, L.I., NEW YORK 11944 TELEPHONE (516) 477-1400 December 9, 1980 Mr. Edward F. Hindermann Building & Housing Inspector Town Hall Soutbold, New York 11971 Re: Sale of Nursery Products in "A" Districts Dear Mr. Hindermann: You have asked for my opinion as to what products may be sold at nurseries tocated in an "A" Zone District. Section 100-30 A(2) of the Zoning Code allows the following agricultural uses in the "A" Districts: "(a) The raising of field and garden crops, vineyard and orchard farming, the maintenance of nurseries and the seasonal sale of products thereof in buildings, subject to the following special requirements: "[1] All one story buildings for the display and retail sales of agricultural and nursery products grown primarily on the premises shall not exceed one thousand (1000) square feet in floor area..." The above quoted provisions of the Code, when read in th~dr entirety, indicate an intention to allow only specified agricultural uses in the "A" District, one of which is "nurseries". The code does not define the word "nursery". Andersons American Law of Zoning (§16.11) defines a nursery as "any land used to raise trees, shrubs, flowers, and other plants for sale or for trans- planting''. Websters New International Dictionary, Second Edition, defines the term as "a place where trees, shrubs, vines, etc. are propogated for transplanting or for use as stocks for grafting". It is evident that the code, by its language, intended to restrict the sale of products at nurseries located in the "A" District. It requires that all sales must be "in buildings"; that such sales must be "retail sales"; that the products so]d must be limited to "nursery products grown primarily on the premises". Mr. Edward F. Hindermann -2- December 9, 1980 In view of the restrictive language of the code, I do not believe that it could be construed in such a way as to permit the sale of any item.s except nursery products primarily grown on the premises and incidentially grown elsewhere. The phrase "nursery products grown primarily on the premises" means growing trees, shrubs, plants, etc. It would be, in my opinion, a strained interpretation of this language to construe it to include products which are not grown, such as peat, fertilizers, pottery, etc. This does not mean that there can be no non-grown products on the premises. Such items may be required to prepare, package, grow or display products grown on the premises. However, such products should not be stocked and offered for sale separately from the grown nursery products. It might be contended by some that since the first phrase of §100-30 A(2) allows in addition to agricultural uses, "accessory uses thereto" that the sale of non-grown products are allowed, since such sales are normal accessory uses in a nursery operation. Such a contention might be persuasive if no restrictive provisions were contained in the subsequent provisions relating to sales. However, this is not the case. The code in clear and unambiguous terms limits sales to products which are grown on the premises or incidentially elsewhere. If the preceding phrase "accessory uses thereto" were to be construed as allowing sales of products other than grown products, then the provisions which purport to limit sales to grown products would have no meaning whatever. To give meaning to all of the provisions of this section of the code, the term "accessory uses thereto" must be construed as applying to accessory uses other than the sale of products. In conclusion, it is my opinion that in the "A" District, a nursery may only sell nursery products which are grown principally on the premises and incidentally elsewhere. If a nursery intends to sell other products it must locate such sales activities in a non-residential district, where such retail sales activities are permitted. RWT :aa Yours ve~t~uly,/~ FRANCIS J. MURPHY SUP[~ RVISOR OFFICE~RVISOR MAIN ROAD SOUTHOLD, L.I., N.Y. 11971 TELEPHONE (516) 765-1800 (516) 765-1939 November 28, 1984 Mr. James McGuire RFD #1, Box 106C Mattituck, NY 11952 Dear Mr. McGuire: It is Town policy not to respond to correspondence or make comments ~matters w~z~ch are currently in liti- gation. Further, it is my understanding you have an attorney handling this matter for you, and I suggest since there is pending litigation surrounding this matter, you consult with him. However, to keep myself and the Town Board abreast of this situation, I did request the Building Department to render a report to me on this entire matter; and accordingly, I am enclosing a copy of the report for your review. FJM:jmr (To be Typed On Town Stationery) Proposed Response November 14, 1984 Mr. James McGuire RFD #1, Box 106C Mattituck, New York 11952 Dear Mr. McGuire: It is Town policy not to respond to correspondance or make comments on matters which are currently in litigation. Further, it is my understanding you have an attorney handling this matter for you, and I suggest since there is pending litigation surrounding this matter, you consult with him. However, to keep myself and the Town Board abreast of situation, I did request the Building Department to render report to me on this entire matter; and accordingly, I am enclosing a copy of the report for your review. this a Very truly yours, FJM: Enclosure Francis J. Murphy Supervisor TOWN OF SOUTHOLD OFFICE OF BUILDING INSPECTOR P.O. BOX 728 TOWN HALL SOUTHOLD, N.Y. 11971 TEL. 765-1802 November 13, 1984 Supervisor Francis J. Murphy Main Road - Town Hall Southold, New York 11971 Dear Supervisor Murphy: You have requested a report concerning the contents of a letter from James McGuire dated August 17, 1984, and October 24, 1984. You should be aware that the subject matter of Mr. McGuire's letter is in pending litigation, and other surrounding matters are currently undergoing review by my department due to possible violations. On review of the files in the Building Department, the following is a factual background of this matter: On or about July 25, 1974, Werner Adel, Jr. applied to the Southold Town Planning Board for a subdivision of his property containing 16 acres located on the northerly side of Main Road, Cutchogue, New York (See copy of Application for Minor Subdivi- sion attached as Exhibit 1). At the time of the granting of the subdivision, Mr. Adel signed Covenants and Restrictions on the property which indicated the property was to be divided into four lots, each lot to contain not less than three and one-half acres (see Covenants and Restriction recorded in Liber 7822 pg 467 attached as Exhibit 2). On November 4, 1976, James McGuire purchased Lot No. 1 on this subdivision (See copy of the contract of sale attached as Exhibit 3). On November 8, 1976, Mr. McGuire applied for a building permit for a greenhouse to raise plants (See copy of Application for Building Permit attached as Exhibit 4). On November 22, 1976, Building Inspector Howard Terry issued Building Permit No. 8977Z to "Build a new agricultural building (greenhouse)" (See copy of Building Permit No. 8977Z attached as Exhibit 5). Attached to the application for this Building Permit was a Site Plan which showed an existing garage and existing one story house which were to be removed (See copy of Site Plan attached as Exhibit 6). On June 22, 1978, Mr. McGuire applied for a Building Permit to construct a one family dwelling on his property (See copy of Supervisor Francis J. Murphy -2- November 13, 1984 Building Permit Application dated June 22, 1978, attached as Exhibit 7). On June 28, 1978, Building Inspector George Fisher issued Bu~I~ng Permit No. 9810Z to "Build a Private One Family Dwelling in Place of Existing 1 Story House".(See copy of Building Permit No. 9810Z attached as ~xhibit 8). Attached to the application for the Building P~rmit was a Site Plan which showed an existing garage and existing one story house which were to be removed. The Certificate of Occupancy No. Z95~ for this one family dwelling was issued on O~tober 17, 1978 (See copy of Certificate of Occupancy No. Z92~7 attached as ~hibit 9). Un- fortunately, at the time the Certificate of Occupancy for this one family dwelling was issued, the Building Inspector did not insist on the removal of the existing one story house on the southeasterly corner of the premises. On October 16, 1981, James McGuire applied to the Building Department for a Building Permit to construct a new foundation with cellar under existing storage building. Building Permit No. 11439Z was issued on October 28, 1981, by Building Inspector Edward F. Hindermann (See copy of Building Permit No. 11439Z attached hereto as Exhibit 10). Again, (it is unfortunate) this Building Inspector should never have issued this Building Permit because the building should have been removed. On July 14, 1984, the Building Inspector Curtis W. Horton, inspected Mr. McGuire's premises and found there had been addi- tional construction work to the storage building. This construc- tion work consisted of installation of: a front door frame, front door, adding new windows, as well as construction work in the rear of the building. As a result of this inspection the Building Inspector determined: the construction work being done on defendant's storage building exceeded the work authorized by the issued Building Permit. The Building Inspector then issued an Order to Remedy Violation ordering Mr. McGuire to stop work at once. The Order to Remedy Violation also contained a notation that "work may resume upon approval of Building Inspector sub- ject to submission of plans and amendment of permit." The Order to Remedy Violation was mailed by Certified Mail to James McGuire and received by Mary McGuire on July 15, 1982. subsequently, James McGuire on or about October 25, 1982, applied to the Southold Town Building Department for a Building Permit for the six by fifteen foot wooden deck locted at the rear of this storage building. This application was denied by the Building Inspector on November 8, 1982 (See copy of Notice of Disapproval dated November 8, 1982, attached as Exhibit 11). Thereafter on November 16, 1982, the Building Inspector, Curtis W. Horton discovered octogon windows being installed on Supervisor Francis J. Murphy -3- November 13, 1984 the westerly portion of the building and a wooden deck was being constructed at the rear of the storage building. The Building Inspector also inspected the premises on November 22, 1982, and found roof, plumbing and attic vents being installed in this storage building. As a result of these on-site property inspections by the Building inspector, he filed an Information on December 29, 1982, in the Southold Town Justice Court. In Count No. 1 of the Information the Building Inspector accused James McGuire and Mary McGuire of a violation of Section 100-141 of the Southold Town Zoning Code charging the McGuires with doing work in addition to the work allowed previously by the existing Building Permit by installing new sheetrock, adding new windows, rebuilding a front porch and adding a deck with a railing on the rear of the storage building. In Count 2 of the Information the Building Inspector accused the McGuires of a violation of a previously issued Order to Remedy violation dated July 14, 1982, since the McGuires were continuing to make renovations and per- forming construction work subsequent to July 14, 1982, without obtaining an amendment to the existing Building Permit. The matter was tried in the Town of Southold Justice Court on June 3, 1983. The Court by a decision dated September 13, 1983, dismissed the information as being defective. Since the lower Court's decision discussed the restoration work done to the McGuire's storage building, but made no mention of the new con- Building Department ' n structlo work such as the deck addition, the in an effort to clarify the Justice Court's decision, made a motion for reargument. The Court without answering the question denied the motion by an Order dated March 23, 1984 (See copy of Order attached as Exhibit 12). A Notice of Appeal of the Court's Order dated October 11, 1983, was filed with the Clerk of the Justice Court, the case was argued before the Appellate Term of the Appellate Division in Mineola, New York, on September 11, 1984, and the matter is still pending. On October 23, 1982, James McGuire applied for a Certificate of Occupancy for Building Permit No. 11439Z. On July 23, 1984, a Certificate of Occupancy No. Z12635 was issued by my department for "a full cellar under accessory building". Again, this Certificate of Occupancy should not have been issued. As you can see from the above facts, it is unfortunate my department: (1) Incorrectly issued the Certific~t~nOf Occupancy for the one-family dwelling (Z9527) without requlr~ g the pre- existing building be removed from the premises as required by the Building Permit; (2) Incorrectly issued the Building Permit for the cellar under the one story building which is now called a storage shed because again this building should have been re- Supervisor Francis J. Murphy -4- November 13, 1984 moved; and (3) Incorrectly issued the Certificate of Occupancy for the full cellar under the building. In reviewing the files, I believe the second and third mis- takes happened because the Building Inspectors were never aware the building on the southeasterly corner of the property was to be removed. They had assumed it was a non-conforming accessory building since it was pre-existing before 1957. I believe after researching the history of this property, this storage building should be removed or &t least some sort of variance should be obtained from the Southold Town Board of Appeals to remain. I am by copy of this letter submitting this matter to the Town Attorney for a legal opinion on whether or not to revoke these Certificates of Occupancies and Building Permits and require the building to be removed at this time. When I receive his opinion, I will advise you. Very truly yours, Victor G. Lessard Executive Administrator VGL:bc Enclosures cc: Robert W. Tasker, Town Attorney APPLICATION FOR APPROVAL OF PLAT To the Planning Board t,f the Towu of Southohl: The undersigned applicant hereby applies for (tentative) (final) approval -f a subdivision plat in accordance with Article 16 of the T6wn Law and the Rules and Regulations of the $outhold Town Planning Board. and represents and states as follows: 1. The applicant is the owner of record of the land nnder application. (If the applicant is not thc owner of record of the land under application, the applicant shall state his interest in said land under application.) MINOR 2. The name of the subdivision is to be.. WEANER L. ADEL, JR. SUBDIVISION ................................................. 3. The entire land under application is described in Schedule "A" hereto annexed. (Copy of deed suggested.) 4. The land is held by the applicant under deeds recorded in Suffolk County Clerk's office as follows: Liber 7.2.61 .......... Page 219 On Oct. 13,...~.9.7~..; On ' Liber ........................ Page ............................................... On ' Liber ........................ Page ............................................... O ' Liber ................... Page ...................... n ........................ Liber ........................ Page ....................... Ou ........................ asdevised under the Last Will and Testament of ....................................... as distributee ............................................................. 5. The area of the land is ... 15. 559 acres. 6. All taxes which are liens on the land at thc date hereof have been paid Is~Xl~x ............ 7. The land is encumbered by ............................................................. mortgage (s) as follows: (a) Mortgage recorded in Liber .............. Page ................ in orifflnal amount of $ ................ unpaid amount $ .................. held by ......................... ........................... address ..................................................... (b) Mortgage recorded in Liber ......... '. Page ................ in orlgioal amount o[ ................ unpaid amount $ .................. held by ......................... ........................... address ..................................................... EXHIBIT (c) .Mortgage rec,rded in Liher ............. Page ................ in original amount of $ .............. tmpaid amount $ .................. hehl by . ........................ ........................... address .................................................... 8. There are no other encumbrances or liens agninst the land ~ .......................... 9. The land lies in the following zoning use districts . .~.'.~.'.~..R..e.s.~.d.e..~.t..i.~: .]....& .............. Agricultura 1 10. No part of the land lies under water xvhether title xvater, stream, pond water or otherwise, 11. The applicant shall at his expense install all required public improvements. 12. The land :$dgl~ (does not) lie in a Water District or Water Supply District. Name of Dis- trict, if within a District, is .............................................................. 13. Water mains will be laid by ........ ~I/.A ........................................ and (a) (no) charge will be made for installing said mains. 14. Electric lines and standards will be installed by .I:/.O. rl. g...~.8..1.a?..d...I~.~g.h..t~.~g...QO..mp.a..n~.. ..................................... and 0t) (no) charge will be made for installing said lines. 15. Gas mains will be installed by ... N/A and (a) (no) charge will be made for installing said mains. 16. If streets shown on the plat are claimed by the applicant to be existing poblic streets iu the Suffolk County Highway system, annex Schedule "B" hereto, to show same. 17. If streets shown on the plat are claimed by the applicant to be existing lmblic streets in thc Town of Southold Highway system, annex Schedule "C" hereto to show same. 18. There are no existing buildings or structures on the land which are not h,catcd and sh.xvn on the plat. 19. Where the plat shows proposed streets which are extensions of streets on adjoining sub- division maps heretofore filed, there are nu reserve strips at the end of the streets on said existing maps at their conjunctions xvith the propnsed streets. 20. In the course of these proceedings, the applicant will offer proof of title as required by Sec. 335 of the Real Property Law. 21. Submit a copy of proposed deed for lots sh.wing all restrictions, covenants, etc. :\nnex Schedule "D". 22. The applicant estimates that the cost of grading and required public improvements will be $ .... 7.-..., as itemized in Schedule "E" hereto annexed and requests that the maturity of the Per{ormance Bond be fixed at .............. years. The Performance Bond will be written by a licensed surety company unless otherwise shown on Schedule "F". DATE July 23 WERNER L. ADEL, JR. (Name o~Applicant) .............. .at,~ ~nd Title) xchard J. Cron, Esq., Attorney ... F~i~. ~O.ad~.. flu~ckog~e,..N.Y... 1195 5 (Address) STATE OF NEW SUFFOLK ~W.~RK, COUNTY OF ............................... ss: ~, ~ J.u. ly 7.4 before personally came On the ................ day of ......................... 19 ..... me ~.]~CI-{AP-,D J. C~0N to me known to be the individual described in and who executed the foregoing w. ,,. /7///I/- //// #~ Public, State o! New Yorl~ Re.idinn .in SugoPk County ·..~.~.-~ .~~ '~ ........ No. 5~-?laSa15 ~alofl ~i~ March 30, STATE OF NEW YO ,R~, COUNTY OF ................................ ss: On the .................. day ............ of ............... 19 ....... before me personally came .............................................. to me known, who being by m{; duly sworn did de- pose and say that ............ resides at No ...................................................... ................. ~ .............................. that .......................... is the .......... tile corporation described in and which executed the foregoing instrument;that .............. knows the seal o[ said corporation; that the seal affixed by order of the board of directors of said corporation. and that .............. signed .............. name thereto by like order. Notary Public ¢ DECLARATION made this ~ day of October, 1974, by WERNER L. ADEL, JR., residing at 1351 Woodside Avenue, Baldwin, New York 11510, hereinafter called the "Owner"; WHEREAS, the Owner has title to certain lands situate~ lying and being at Cutchogue, in the Town of Southold, County of Suffolk and State of New York, said lands hereinafter being more particularly described; and WHEREAS, it is the Owner's intention that the aforesaid lands be subdivided into a minor subdivision consisting of.not more than four residential lots; NOW, THEREFORE, the following described lands shall be restricted as hereinafter set forth: ALL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being at Cutchogue, Town of Southold, County of Suffolk and State of New York, being more particularly bounded and described as follows: BEGINNING at a point on the northerly line of Main Road, at the southwesterly corner of the premises herein de- as measured along ' d scribe , said point being 784.94 feet the northerly line of Main Road from its intersection with the easterly line of Elijah's Lane; from said point of beginning running thence along land of Surer, 2 courses and distances: (1) North 26 degrees 19 minutes 20 seconds West, 1354.81 feet; thence (2) North 59 de- grees 51 minutes 30 seconds East 495.53 feet to land ~ about to be conveyed to James E. Cross; running thence along said land and land of Conrad Bagenski and Frances Bagenski, his wife, South 26 degrees 19 minutes 20 seconds East, 1232.31 feet; running thence along land Of Kaelin and land of Conrad Bagenski and Frances Bagenski, his wife, South 21 degrees 26 minutes 50 seconds East, 282.51 feet to land of Stepnoski; running thence along said land 2 courses and distances, (1) North 83 degrees 10 minutes 50 seconds West, 100 feet; thence (2) South 6 degrees 10 minutes 50 seconds East, 150 feet to the northerly side line of Main Road; run- ning thence along said line 2 courses and distances, RICHARD J. CRON COUNSELLOR AT ~.~W RICHARD J. CRON (1) North 83 degrees 10 minutes 50 seconds West, 283.39 feet; thence (2) North 86 degrees 00 minutes West, 113.27 feet to the point or place of beginning. BEING AND INTENDED to be the same premises conveyed to Werner L. Adel, Jr.~ by deed dated the 28th day of September, 1972, and recorded in the Office of the Clerk of the County of Suffolk on the 13th day of October, 1972, in Liber 7261 of deeds, page 219. DECLARANT does hereby warrant, covenant and represent that on approval of the aforesaid described lands as a minor subdivision by the Planning Board of the Town of Southold, no further application will be made to that Board or to any other Board in the Town of Southold to further subdivide any of the lots set forth in said minor subdivision. DECLARANT does hereby further warrant, covenant and represent that the aforesaid described lands within the minor subdivision cannot be subdivided into more than four lots and that each such lot shall comprise an area of not less than three and one half acres. DECLARANT does hereby further warrant, covenant and represent that the foregoing restrictions and agreements shall bind the undersigned, his heirs, successors and assigns, and any and all person or persons who shall succeed to the ownership of any of the lots shown on said aforedescribed premises in said minor subdivision by transfer or otherwise. IN WITNESS WHEREOF, t~Declarant has caused his hand and seal to be affixed this ~ day of October, 1974. Werner L. Adel, Jr/ RICHARD J. CRON STATE OF NEW YORK SS.: COUNTY OF SUFFOLK ~ ~da On the y of October, 1974, before me personally came WERNER L. ADEL, ,TR.., to me:known and known to me to be the. individual described in and who executed the foregoing instrument and acknowledged to me that ~e exe~ the same. -3- Co:qSULY YOUR LAWYER BEFORE SrGHIH"'~ THIS INSTRUMENT~Tiii5 INSTRUMENT SHOULD ~E USeD ~y ~WTE~S HOTE: FIRE LOSSES. This ~orm o~ contrac~ c0ntaMs no exprc~ p~ov~ion as t0 r~s~ o~s ~zc other casua]l) ~r[ delivery of fl~= deed. U~ess cxprcss provision is made the revisions . .by or ubhgatmns Lqw wiIl apply. Thh section ~sn nl~*~ i.~ ~,, p . o~ 5:ctmn 5-1311 of thc prior to closing ...... r ..... r.~,. o[ ~oss upon purchaser ff h~l¢ or po~cssion is transfer THIS AGREEMENT, made the F' BETWEEN day of ~ , nineteen hundred'and seventy-six .r~gsau Cxmuntym I'~v herel.n, after described as the seller, and ~ his ~e~ 820 New Suffolk Avenue, ~ttttuck, New York .both residlng at hereinafter described as the purchaser, ~FI'NESSETH, that the seller agrees to sell and convey, and'the purchaser al~rees to purchase, all that certain ,plot, piece ~ c~slsts of 4.~8 ac~-es- on survey prop~r~ by Youn~ & Young on Subjec:c/prope~;ty is vac[unt 'la~d :f~ fr~o Of im roy -' ' . .- //~ ~ne r~g~t~.~nstruct plastic graen~ouses · -' ' - . houses, n~ovi~ ~.- -~ T- ~e r~ght to remove the tem~ - = ,t~ .-,= ~es ~ne ~and to its former cohesion,r~y Sublet to an e~s~ing ten~cy in 'bhe small house located on the* easter en~ of the Praises.- '. . . . , said Tenan= ~lng a ~n~ t0 month tenant In the event ~rchaser herein c~ences 'construction of the plastic greenhouaes prior to closlng, ~rchaser will, at bin o~ cost and 'e~ cau~ the eel/er herein to be covered for liability ~nsurance in ~he, am0uPt of $100,000.00. or avenue opened or proposed, in front of or adjoining said premises, to the centerline thereof, and all ri~tt, title and intcrcst of the seller in and to any award made or to be made in lieu thereof and 'n a premises by reason 6f change of grade of any ~t.~.~ ....... I .nd to any unpaid award for damn e to ' . c., aaa the sc.er wm execute and dehver to t u g satd title, or lhereafteb On dem~d, ........ he p rchaser, on closiug of ~l proper instruments for the conveyance of such title and ~e assi~ment'and collection of.: ' ~ny such award. ' CI.use 9 is usually om;tied it the pro!oerl¥ H~e City st 2. The price is * ° · * ' ' ' Dollars, payahle as fifllows: T} IIFCTY-FIVE , ' ' ' ' .... Dollars ~}x ........ , T,']REE~~~'THOU,,A~;D FIVE .HU~,,TDR~t3D '{$3,500.00) held in escrow by Adalf Eckhardt Esq. until clo~ing of title. on the signing of this c0niract, by check subject to collection, the receipt of which is hereby ac 'knowledged; O~,Tr' ...... ~---~,- ~n~ ,n,~n~ tS.~ 500-00} ~rtif~cd chec~ at t~tle by taking title stibject to a mortgage now a lien on said prem'ses in that amount, bearing interest at tile rate of per cent per annum, the principal being due and payable TI~CTY-TilREB THOUSAND SEV~¢ I4Vo%NDR 'ED & FIFTY ($2~e750.00) · - · Doflar.~ by the purchaser or assigns executing, acknowledging and delivering to the seller a bond or, at the opti6n of the seLler~ a not( secured by a purchase money fi. rot mortgage on the above premises, m that amoun, payable . 18 raottths . .' per annum payable · Said 12.ortgt, O~ to · together withinterest at .the rate of C~ _per. c~nt contain' a c/ause that :t ~ay b~ prepa~ at any time ~ithout panalty. Second mortgage of $6250.00 to be given by l'!O~l~g L. ~oZ'Jr.'at rile," .... _ ' ~,~ ~nterest to!= p~d .18 ~n%hs - full prepa~ent. Interest only to ~.pa%9 ~thly. ~rchaper may a~ hiD option Obtain 'a mortgage fr~ a ienolng l~sLitutzpn where closing 3. ~y bond or note and mortgage to be given hereunder shallbe dra~%n on the s~andard forms of New York Board UnderwrRers for morigages of like li~n; and shall be drawn by ~ attorney fo~ ~e seller al the expense of ihe purchaser who shall also pay the mortgage ~ecording ~ and recordin~ fees.. _ · ' 4. If such purchase money mortgage is ~o be a subordinate mortgage on th~ premises i~ shall provide thai it ~al] be subjec: and ~bordi~ate ~o ~ finn of the existing morlgage of $ , any slons fliereof and lo any morigag~ or consolidated morlgage which Umy b~ placed on the premises ~ lieu thereof and ~o any exteDsions thereof provided (a) that th~ interest rotc thereof shall not be Ucaler than per cent per annum and (b) tha~, if ~e principal amount thereof shall exceed the amoun(o~-ptincipsl o~ng amd unpaid sa said · ex,ting morlgage at ~e..t me of placing such new morigage or consolidated mortgage, the excess be paid to th= ho~der such purchase money mortgage in reduction of the principal thereof Such purchas~ money mor[gag= shall ~so provide tha~ such payment l0 th~ holder thereof shall no~ alter or affec~ the regular installments, if any, of principal p~yabl~ thereunder and sh~l further provide lha~ the holder thereof will, on demand and withoul charge therefor, ex:cule, ac~owledg~ and deliver any agreemenZ or agreements further ~o cffectunlc such subordination. ~. If there be a morigag= on ~he premises the seller agrees to de]i~r ~o the purchaser a~ the tim~ of dcliv~ of th~ deed a proper certi~ca~e executed and acknowledged by the holder of such mortgage and in form for record ag, c~rfifying as [o ~oun~ of the unpaid principal and interest lhereon, da~e of maluri(y thereof and role of interest thereon, and the ~ller shat pay the fees for recording such certificate. Should th~ mortg~.gce be a hank or other institution as d~Sned in Section 274-a Real Property Law, the mortgagee may, in lieu of the said certificate, furnish a l=~ter signed by a duly authorized officer or employee, or agent, containing the information'required ~o be set forth in said certificate. Seller represents thai morl.a.e ~1~ not be in d~Sult at or as a r~su]t of the deliye~ of ihe deed'hereunder and that neither s~d morigage,nor an~ modlfical~on ~ereof centares any provis on ~o accelerate payment, or ~o change any of lhe othe~ le~s or pro mis ~creof by ieason of the d~liveU of ~ deed h~reunder. 6. Said prcmlses are sold and are to b= conveyed subjec~ to: - m. Zoning re.lotions and ordinances of the city, town or village in which ~he premises ]m which are not violated exls~ing $lmctures. · b. Consents by the s~ller or any former owner of premises for th6 erection of any slructure or simctures on, usd~r o above any stree~ or streels on which said premises may abut. c. Encroachments of stoops, areas, cellar s[eps,.lrlm and cornices, if any, upon any street or hi~%vay. 7. All notes or notices of violations of law or municipal ordinances, orders or requirements noted in or issued by lhe Depart taunts of Housing and Buildings, Fire, Labor, Health, or other State or Municipal Department having jurisdiction, against oz affecting the premises at the date hereof, shall be complied with by the seller and the premises ·shall be conveyed free o the same, and this provision of this contract shall survive delivery of the deed her~:under. The seller shall furnish the put chaser with an authorization to make the necessary searches therefor. 8. All obligations affecting the premiies incnrred under the Emergency Repairs provisions of the Administrative Cod~ of the City of New York (Sections 564-18.0, etc.) prior to the delivery of tile deed shall be paid and discharged by th. caul let upon the delivery of the deed. This provision shall survive the delivery of the deed. 9. If, at the time of the defivery of the deed, tile premises or any part thereof shall be or shall have been affected by assessment or assessments which are or may become payable in annual installments, of which the first installment is then: charge or lien, or has been paid, then for the purposes of this. contract all the unpakl instalhnents of any such assessmen including those which are to become due and payable after the delivery of the deed, shall be deemed to be due and payabl and to be lien$ upon the premises affected thereby and shall be paid and discharged by the seller, upon the deliver. of the deed. 10. The following are to be apportioned: (a) Rents as and when collected. (b) Interest on mortgages. (c) Premiums on existing transferable insurance policies or re newals of those expiring prior to tile closing· (d) Taxes and sewer rents, if any, on tire b,4. sis of the fiscal year for whic; assessed. (e) Water charge.s on the basis of the calendar year. (0 Fuel, if any. 11. If the dosing of the title shat! occur before the tax rate is fL:ed, the apportionment of taxes shall be of the tax rate'or th~; next preceding year applied to tile latest assessed valuation.-. . . · · l. on d O! ® 'A~'eo * · 09~ Acr~ o ...... ,,,- ,-,pornonca ou thc basisofsuchl'ast rca~g' i ...,~u ~ewer rent, ~t any, base · Sale with ('ov~r, krc~ ~- , ' " deed in proper slalulofy short [Orlll Jbf record slid shah be duly cxeculed and ack-c,,~%,.,2 , ~} chaser lite fee situplc of lite said p~cmises, free of all encumbrances, ~xcept ..,-.~u so as to convc ' as herein slated, and shall conlain ~equked by subdivi~io. 5 of Sea6on 13 of file Lien Law. If lbo s~ler is a coq~oratiou, it ~ill delive~ to lbo pu~ch~se~ at Ihe lime of lhe ddive~y of lbo deed he~euuder its Bo;~d of Direclo~s aulborizing lbo sale and delivery of lbedced, and a certificate b~ Ihe Sec~elao. or of Ibc coq~oralion certifying such reso ul on and sold g fo~t ~ f; c s showi ~*,. . ~equiremefitsofScctioug09oflheBusinessCo~ ; ohio... ~,' . .~ Ita~ Ihe COmeyauce Is m conforn establish compliance with said section. _or t~ ..... ~. ~,te ae~ m such case shall contain a recit~ 14. At thc closing et Ibc fide lb0 seller shall deliver to the purchaser a cedified check Io die order officer of tho county in which tho deed is to bd recorded for tho amount o~ tho documealary stamps thereto in accordance with Article 31 of the Tmx Law, and a co, tiffed check to Ihe order of lite apprup for any ulher tax payab c by reason of the del ver of I and a return, ffany be required, duly signed PP p e officer promptly alter the closing of lille, use the check and the IS. In addition, the seller shall at the same time deliver Io the purchaser a cerli~d cbeck to {he order of AdminisDator for the amount of the Real Property Transl~r T~x imposed by Title Il'of Chapter 46 of the Ach Code of the City of New York and will also de iver to ~e pure m;er {be ~etuzn requ red ~lations issned pursuant to tim authority Ihereof, duly signed and sworn Io by the seller; b~ tile said statute a swear to lite return and lo cause the cheek and tim ~eturn to be delivered to the City Register promptly after tire ch title. ' tile purchaser agrees 16. The seller shall give and tho purchaser sball accept ~ title such as ' ~' re~a~b~ , a Member of the New York u~.., ......... ~ .~Z.~ 17. All sums paid on accoufft of this contract, and the reasonable expenses of the examinalJon of lhe tide to lses and of lhe survey, ifany, made in connection therewith are hereby made liens on said premises, but such lien continue after default b~ the purchaser under this contract. 19. Thc ar~ount of any unpaid taxes, assessments, water charges ;]nd sewer rents which tile seller is obligated to discharge, with tile interest and pefialities thereon to a date not less titan two busifiess days after tile dale of.close may at the option of the se let bo allowed to [he purchaser out of the bale ce of the purchase price, provided therefor with interest and peualfics thereon figured to said date are furnished by the seller at the closing, offi 20. If at tho date of clbsing there may be any o er ] c s or encumbrances whi,'h the sc let is ob]i ale ~mullaneously either deliver to the purchaser at tile closing or title instruments in'recordable form and sufficient such liens and encumbrances of record to-ell ' ' ~vid~dt~'~ charge, the seller -may use any portion of the balance of c pure rose price to satisfy lbo sa e, pr L seller has ~ ado arranoe · o ~cr w the cost of rccordht or ' - - and the issue tee of t t e inst.ra~-~',~ ..... ,a.u rcgturcu oy it to ;t re ob nine a~,~ .'--~J,- "-~ .... ~r wu, ucpo~ to the date of closing of lille, agrees to provide at tile closing separate certified checks as requested, aggregating tile of the balance of the purchase price, to facilitate the satisfaction of any such liens or encumbrances. The existence such taxes or other liens and encumbrances shall not be deemed obj[c~ions lo title if tile seller shall Comply with th going requ rements · 21. If a search of the title discloses judgments, bankruptcies or other retnm; a~ainst other persons having names t~e s: or similar lo that of the seller, the se let will on re~uest deliver to the purchaser an affidavit showing that auchjudg: .bafikruptcies or other returns are not against the seller. ' 22. In the event that the seller is unable to convey title in accordance with the terms of this contract, the sole the seller will be to rdfuhd to the purchaser the amount paid on account of the purchase price and to pay lhe net c, examining the title, which cost is not to exceed the charges ffLxed by the New York Board of Title Underwriters. and cost of any survey made in connectioa therewith incurred by the purchaser, and upofi such xefund and payment being this cdn[ract shall be considered canceled; .23. Tile deed shall be delivered upon tile receipt 6fsaid payments at tim office of ~. ~, ~cI~l~d~ j ' 2020 IT. GZ'~ AVe.~ ~d~l~.y. a't o'clock 24. The parties agree t ~at .. _ '~.rot,ght about this sale amU~u~9~ , . . . oa Janu~y 4th 19 , t '~"2S. It is understood '~-~'~:"~~~&~~v~ is lie. broker ahdagreed that allunders~andings and agreeme,tsheeetofore had betweda the parties, hereto merged in this contract; which alone fully and complelely expresses their agreement, and that the sam~ is entered into full investigation, neither pady relying Upon any sta ement · other. Tbe pnrchase} has iuspecled t ~e buildin,--,---,:- or ~qqresent~non, not embodied in this cn,e and agrees to lake htle as ~s and m Ihe/r p~esent condition and subject ~' y equamteu wtlh theireondi, 26. This agreement may not be changed or tcrminated orally. TJse Slilndatio~s aforesaid are ~o heirs, execulors, administrators, successors and ass/gas of lite zespectJve parties, apply to and bind 27. If two or more persons constitute either die seller Ibc purchaser, tl,e word *'s~ller" or the word pumhas, she I be construed as if: ........ - or ,, 1N ;qlTNESS WHEREOF, this agreement bas been duly 'execuled by the par?s hereto, zequires. In presence Examined Approved .................... ~ ......... , FO~ ~O. ! TOWN OF $OUTNOLD BUILDING DEPARTMENT TOWN CLERK'S OFFICE ~OUTHOLD, bi. Y. ......................... Application No ................................ Disapproved a/c .................................................. -.....~ APPLICATION FOR BUILDING FERMIT INSTRUCTIONS a. This application must be completely filled in by typewriter o~ in ink and submitted in triplicate to the Building Inspector, with 3 sets of plans, accurate plot plan to scale. Fee according to schedule. b. Plot plan showing location of lot and of buildings on premises, relationship to adjoining premises or public streets o~ areas, and giving a detailed description of layout ofproperty must be drawn on the diagram which is part of this application. c. The work covered by this application may not be commenced before issuance of Building Permit. d. Upon approval of this application, the Building Inspector will issue a Building Permit to the applicant. Such permit shall be kept on the premises available for inspection throughout the work. e. No building shall be occupied or used in whole or in part for any purpose whatever until a Certificate of Occupancy shall have been granted by the Building Inspector. APPLICATION IS HEREBY MADE to the Building Department for the issuance of a Building Permit pursuant to the Building Zone Ordinance of the Town of Southold, Suffolk County, New York, and other applicable Laws, Ordinances or Regulations, for the construction of buildings, additions or alterations, or for removal or demolition, as herein described. The applicant agrees to comply with all applicable laws, ordinances, building code, housing code, and regulations, and to admit authorized inspectors on premises and in buildings for necessary inspections. .......... .......................................... (Signaturelof oppli~:ant~or.r%orr~, if a corporation) ~o ~4~ ~-~.4u4~a:~u- - .......... ~.r/~)...:.f&.~....~...~..~ ................................................ ~,'$'1 .~___(A~ddress of applicant) State whether applicant is owner, lessee, agent, architect, engineer, general contractor, electrician, plumber or builder. O.w.. t~ ............................................................................... Name of owner of premises ~.~Q~.n~....~.`~%~.~..~..~....~...T../..~..~...C~.~..~..u:.;~?..~..~..~ .................................................... : ......................... If applicant is a corporate, signature of duly authorized officer. (Name and title of corporate officer) Builder's License No ..................................................... Plumber's License No ................................................. Electrician's License No .................. ~ .......................... Other Trade's License No ............................................... 1. Location of land on which proposed work will be done. Map No.: ........................................ ,,-- , ~ Lot No ......................... Street and Number .~..~!/.~..~MO./~) o~,lJc[ ~[ ~~~0~ 0~ ~.~o1~ Municipali~ 2. State existing use and occupancy of premises and intended use and occupancy of proposed construction: a. ~isiting use and ~cupancy ....U.~.t....I.~.~ ............................................................................................. ~. ~,~,ded ,,, =,d oc=,~,,=, ..&..~.~....b....:~ ............. ~ ........ ~ .............................. 3. Nature of work (check which applicable): New Building'. ................. Addition .................. Alteration .............. Repair .................. Removal .................. Demolition .................... Other Work J;z.T:..~C-~....~..\~3.~.~..~....~.~P-.e.~b~ (Description) ,. EstimotedCost ...... ................................. Fee ................................................... (to be paid on filing this application) 5. If dwelling, number of dwelling units ............................ Number of dwelling units on each floor ............................ If garage, number of cars ............................................................................................................................................. 6. If business, commercial or mixed occupancy, specify nature and extent of each type of use ............................ 7. Dimensions of existing structures, Jf any: Front ............................ Rear ................................ Depth .................... Height ........................ Number of Stories ................................................................................................................. Dimensions of same structure with alterations or additions: Front ....................................Rear ............................ D ,L ' Hei,-ht ...................... Number of Stories ................................ · , ~ _~' IOo~ 8. Dimensions of ant,re new construction: Front ...... ~.....,r,/,~.. ........... Rear ........~......._r/. .......... Depth ........................ ~ I Height .../..~. .............. Number of Stories .................................................................................................. : ................... Size of lot: Front ...... ..~....8...3.! ...................................... Rear ..... .~..~.~..~. ......................... Depth ....~....~..O..~. ................... 9. Date of Purchase ...... ./.o../.~..~?...~.. .............................. Name of Former Owner ~b/.~.?...~..~..~......~t.~.~...( .................... 10. 11. Zone or use district in which premises are situated ..................................................................................................... 12. Does proposed construction violate any zoning law, ordinance or regulation: ....~[.O... ............................................... · ~'l-n~//. ~ ' ess fill be removed from remses( ) Yes ( ~')'~No 13. W,II lot be regradea~::...~.l~.~.."..c...~W, exc p 14. Name of Owner of premises .-~'LO3.e.S.L..l~..~.£~-.~..~-.-u.t-.c...~-. ...... Address ~...~X./e.l.~; ..... Phone No..~..~.~..:.~....~..¢~.... Name o~ Architect ~.nJ..P. ................................................... Address ................................ Phone No ....................... Name of Contractor ..~...e..~.~.. ................................................ Address ................................ Phone No ....................... PLOT DIAGRAM Locate clearly and distinctly all buildings, whether existing or proposed, and indicate all set-bock dimensions from property lines. Give street and block number or description according to deed, and show street names and indicate whether interior or corner lot. STATE OF NE~/Y_.OR..~_ __ I. S S .............. ~....~~ ................................ being duly sworn, deposes and says that he is the applicom (Nam~ of individual signing contracO above named. ~He is the ........... ~~ .................................... (Contractor, agent, co.orate officer, etc.) of said owner or owners, and is duly authorized to perform or have performed the said work and to ~ke and file this application; that all statements contained in this applicatio~ are true to the best of his knowledge and belief; and tha~ the work will be performed in the manner set fo~h in the application filed therewith. Sworn to before me this ....... ................ ....... ............................................. __~~, ~~ . t~lgnature of applicant) · 3USTICE'COORT OF TI/E TOW OF SOUTHOLD COONTY OF SUTFO,TJ[, NEW YORK THE PEOPLE OF 'TBE STATE. OF NKW YORK -against- + JAM~S MC GUIR~ &/k/a JA~/ES R. MC GUIRE and + MA~Y MC GUXl~, &,/k/& MARY V. MC GUIRE, + DEFENDANTS + DECISION ON MOTION AFTER TRIAL Richard F. Larkw Special Assistant District Attorney for the People. Richard J. Cron, for Defendants This case came on for trial on June 3, 1983. After the conclusion of the People's case, the Court granted Defendant*s motion to dis~sS t~case against the Defendant Mary McGuire on the grotmds that s&id Defendant never signed the application for the building pe~t nor was she ever served with a stop order by the Bu~ld:13~ Department. .After Defendant rested without calling any witnesses he renewed a~otio~t ~o dismiss against Defendant James McGuire o~t ~ grott~ds that the information was jurisdict- ionally defective w~thin the meaning of Criminal Procedure Law Sectio~ 100.40(1) ~ the People had not proven its case beyond& re&soakage doubt. Building Perm4t ~0, 11439 Z was duly issued to Defendant James McGuire to sons,ruer a new foundation with cellar under existing storage btti~d~ng. The information charges Defendant James McGuire wl~h l~talling new sheet rock, adding new wind- ows and (repleoing same) front door, rebuilding the front porch a~d adding a desk w~th r&iling on the rear of the said building in violation of-Seotio~t 100-141 of the Southold Town Code. The second cotutt charges Defendant, James McGuire with failure to stop a~"~'f 'the additional work not authorized by the said building permit. Defendant's motion is addressed simply to the question or,whether or not ~ statute requires a permit to replace windows, install sheet rock, a new front door and rebuilding fha front porch, all in replacement of what was already there. The People so, tend the statute requires a permit to replace windows~ install'sheet rock, a new front door and rebuilding a porch a~d that the same constitutes renovating the building. (1) .continual'ion of People V.'"McG~ire Dkts 49'5 & 496 The thrust of Defendant James McGuire's motion to dismiss is that the information charges him with "renovating" whereas the Town Ordinance, Section 100-141 delineates only and inter alia ".... erected, reconstructed or structurally altered..." and nowhere in the statute is renovating made illegal. Section 100-141 of the Town Ordinance requires a person to apply for a building permit and then sets forth when he must. Nowhere does the word renovating appear in the statute. The penalty for violating the section provides for a fine and/or imprisonment or both. In the case of People V. McGuire 5 NY(2) 523, the Court of Appeals of this state he~d that an information must allege that the Defendant has co~nitted acts as defined in the statute. 9~e claim by Defendant herein is that Defendant is charged with renovating and the statute does not require a permit for same. The information herein alleges acts of renovation which are not prohibited by the statute. The proceeding being criminal in nature ~s hereby construed strictly against the maker of same. This Court holds there is a difference between the meaning of the words and cannot agree that renovating, reconstruction and restoration are synonymous. See Ballentine's Law Dictionary,' ~o~ear' S~oe Machinery V. Jackson 112 Fed.146. It is to be noted that Defendant moves under Criminal Procedure Law SectiQn 100.40(1) in that the information herein does not conform to the requirements as set forth in Section 100.15 of the Cr~m~al Procedure Law. It must be r~ered that an accusatory instrument which is our basio trial tool requires the most detail. It is necessary that it state the offense charged and the partic- ular facts estebliShing each and every element of that offense. ~ V. Hall 425 NYS(2) 56. The Court of Appeals in the ase stated at Pa~e 57: "It is a fundamental and non-waivable jurisdictional prorequisite that an information state the crime with which the Defendant is ~harged and particular facts constituting that crime." In the instant case the Defendant is charged with renova- ting without a building permit. The Defendant contends there is no such offense in the Town Ordinance. Section 100.15 of the Criminal Procedure Law sets forth with certainty the form and content of the accusatory statement. It states that it must (a) charge an offense or offenses (b) recite evi4entiary facts sworn to by the complainant supporting or tending to support the charges. (2) 'continua%ion of People V. MoGuire DKTS 495 & 496 At the most Defendant is saying that the accusatory inst- rument is allegAng evAdentiary facts (without conceding that it does so) of all offense which does not exist in the Code of the Town of Southold, to wit: renovating is not an offense listed or met forth in the said Code. A defendant must be charged in the information with a particular offense actually committed; People V. Hendricks 232 App. Div. 106,and · failure to design~-~ t--~e' proper etatutory sectAon and offense desiqnated is not a mere irregular- ity. People V. Law 43~--~2~ ~-~6ple V. Fletcher Gravel Inc. 368 NYS(2~9~. ' In People V. Law the Court stated at page 649: "Another Court of this state held that a count other than a lesse~ A~luded ~harge ~ay not be added after the People have rested, although the charge sought to be added was adequately ~ ~n the faotuai part of the accusatory ins{rumegt. people V. Davis 82--M~sc~.~2~--4~--37-~--NYS(2) 328." (Underlining added) The accusatory part of the information should be explicit as to the na~e of the vAoletion for which Defendant is charged, People V. ~-i~kel 67 Misc. (2) 848 NYS (2) 28. Defendant AS not charged with erecting, reconstructing, restoring or etructttrally altering which are the words of the Southold Town Code, hut rather he is charged with renovating the buAlding. The information charging the Defendant with renovating the b~ildA~ As hereby dismissed pursuant to Section 100.40(1) of t~e.rim4naI Procedure Law as being defec=ive for the reasons herein before stated and in addition and inter alia At fails to state facts gAving the essential elements of the offense charged. $O ORDERED September 13, 1983' i$outhold New York COPIES TOt F D R CX . '/ soo .o= James McGuire, Defendant Richard J. Cron; Esq. for Defendant Richard F. Lark, Beq. for the People Southold To~n Building Department (3) TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN CLERK'S OFFICE SOUTHOLD, N. Y. BUILDING PERMIT - - - (THIS PERMIT MUST BE ~(EPT ON THE PREMISES UNTIL FULL 4 !']'COMPLETION OF THE WORK AUTHORIZED) Permissi~ is hereby granted to: ,, ~ ' ',~, -,.~= .................................................... ; ......................... :' ~","-..:.;...;:.:.'..:..:..:.';:,.L~.~.~k ......... :.;: ...... :.: ....... ................................................................... ; ............ :S ......'... i....L .i.;;'~ ....... 'i ............................................. premises Iocoted m'~..~!.~..~!!,~..!}~!!..!..!!~.".~..L".~l.~. "~ ~ ' "'~? '-. ¥ ~'~, ~,~.bg.~.....~.~.~.~. .............................. ....... l~ov 8 ., ...... 6 pursuant to apphcahon doted ........................................................ i-,19.,.~..... ;~;,~:~,;~','Building Inspector. NO~]~% ~ill Need "Curb Cut"~ pemlt from · "'?"L' Fe '~ Building //Ou~e NO. 2 TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN CLERK'S OFFICE' ~OUTHOLD, N~ Y. BUILDING PERMIT (THIS PERMIT MUST BE KEPT ON THE PP, EMISES UNTIL FULL COMPLETION OF THE WORK AUTHORIZED) N.° 9810 · Z ~Jvx/E ~B ?~ Date ........................................................ 0 19 ........ Permission is hereby m p~lm ~ at .................................................................. ~. .................... ' ............. r~'~';~.~F~F'":";~r ....... ;7":~;'"':': ............ ~"~"'~'rr~"~'~"~~ ......... '~'~F; ......... '"~"~'., ..................................... ~. ......................................... .3~.~ ........ .~ ....... ~ ...................................... pu~t ~ a~llc~i~ ~ .......................................... ; ............. , 19.....~.., and approved by ~e Bulldi~ !~tor. . 131._35 Fee ~.oo .................... Building Inspector NO. 4 TOWN OF $OUTHOLD BUILDING DEPART~NT Town Clerk's Office $outhold, N. ¥. Certificate Of Occupancy Manor Hill Lane THIS CERTIFIES that the building located at q60 .Pv~....Rd....#. 3 ......... ~ MIN~[~x ..... 97 .... Block No ........... Lot No .......... ,[ ....................... conforms substantially to the Application for Building Permit heretofore filed in this office dated ... ~une.. 22 ......... , 19.7.8. pursuant to which Building Permit No .... 98.'10Z dated . .. June.. 28 .......... , 19.78., was issued, and conforms to all of the require- manta of the applicable provisions of the law. The occupancy for which this certificate is issued is ........ · · Pr. iva.te. One .Family .Dwelling. ............................. The certificate is issued to ...... Jame~ .lqcGu:k~e .................................. of the aforesaid building. Suffolk County Department of Health Approval ( owner,x~~~ .... ~:~O:~.5.... $.e~.'~m.b.~r. 25.~..~978 UNDERWRITERS CERTIFICATE No ...... .P.e.n...d~ng. .............................. HOUSE NUMBER 160 Street Pvt. Road ~ ~ Cutohog~t.e; New York Building Inspector County Tax Map # 1000-108-3-13.6 EXHIBIT FO~M NO, · TOWN OF SOIJTHOLD BUILDING DEPARTMENT TOWN HALL 8OUTHOLD, N~ Y. BUILDING FI/RMIT (THIS PERMIT MUST BE KEPT ON THE PI~F. MISES UNTIL FULL COMPLETION OF THE WORK AUTHORIZED) No. 11439 Z Perml~ion is hereby granted to: ..... ....... ·/.P:#' / ~- , .... z~.~,,.~.../,.,.~..-**.~.**~. ......... /../.~=z~ ..~....~.../...~. ........................ ~o ....... ~. ............ '.~. ~,. .....~.........~.~..~ ....................... r..~. ......................... ~ ................... ., ........................................ ~ p_,. ~___-~ ~..~~.....~..~.~.~.....~../.~.., .......... d~..~..~.~/....?.~.~:~..~./._ pursuant to application dated ....... [../ia ............. , 19..~../., and approved by the Building Impector. Building Inspector Rev. 6/30/80 EXHIBIT /0