HomeMy WebLinkAboutZBA-12/16/1991APPEALS BOARD MEMBERS
Gerard P. Goehringer, Chairman
Charles Grigonis, Jr.
Serge Doyen, Jr.
James Dinizio, Jr.
Robert A. Villa
Telephone (516) 765-1809
BOARD OF APPEALS
TOWN OF SOUTHOLD
MINUTES
REGULAR 5TEETI NG
MONDAY, DECEMBER 16,
1991
SCOTFL. HARRIS
Supervisor
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
Fax (516) 765-1823
Telephone (516) 765-1800
A Regular Meeting was held by the Southold Town Board of
Appeals on MONDAY, DECEMBER 16, 1991 at the Southold Town Hall,
53095 Main Road, Southold, New York.
Present were:
Gerard P. Goehringer, Chairman
Charles Grigonis, Jr., Member
Serge Doyen, Jr., Member
James Dinizio, Jr., Member
Robert A. Villa, Member
Linda Kowalski, Board Clerk & Secretary
The Chairman opened the meeting at 7:30 p.m. and proceeded
with the public hearings on the agenda (noted below). A
verbatim transcript of the oral statements have been prepared
under separate cover.
PUBLIC HEARINGS:
7:35 p.m. Appl. No. 4066 - PELLIGRINI WINERY. Special
Exception to the Zoning Ordinance, Article III, Section
100-31B.13 for permission to establish winery use for the
production and sale of wine produced from grapes primarily gro%rn
in the location of this vineyard. Location of Property: North
Side of Main Road (State Route 25), Cutchogue, NY; County Tax
Map District 1000, Section 109, Block l, Lot 8.7; bounded on the
west by Alec and Cross, north by Jablonski, east by Carnation
Properties, south by Main Road.
7:40 p.m. Appl. No. 4067 - PAOLO LAVAGETTO. Variance to
the Zoning Ordinance, Article IIIA; Section 100-30A (Section
XXIV, Section 100-244B) for permission to construct garage and
storage addition with reduction in the (westerly) side yard
setback on this corner lot. The subject parcel contains a total
lot area of 17,287 sq. ft. and is located in the R-40 Zone
District. Location of Property: South Side of Mason Drive and
the West Side of Broadwaters Drive, Cutchogue; County Tax Map
Regular Meeting of December 16,
Southold Town Board of Appeals
(2)
1991
Parcel No. 1000-104-7-7.
7:45 p.m. Appl. No. 4047 - ETHEL H. BETZ. (Postponement
was requested 12/11 by adjacent landowner (Mrs. BJenknes) for
continued hearing in January.) This is a Variance application
to the Zoning Ordinance, Article III, Section 100-30A and
Section 100-31A.3, Bulk Schedule, for approval of insufficient
lot area and width of two parcels in this pending set-off
division. Location of Property: Northeast side of Calves
Neck Road, Southold, NY; County Tax Map Parcel No. 1000-63-7-34
and 35. (Postponement was requested 12/11 by adjacent
landowner, Mrs. BJenknes, for continued hearing in January.)
8:53 p.m. POSTPONED AS REQUESTED BY ATTORNEY FOR APPLICANT.
Appl. No. 4068 - ELEANOR SIEVERNICH. Variance to the Zoning
Ordinance, Article XXIII, Section 100-239 and Article III,
Section 100-32 for approval of proposed Lot ~1 and Lot #2, each
having a reduction of the total lot area due to wetlands, and
for approval of insufficient width (frontage) of Lot ~2.
Location of Property: Easterly side of Cox Neck Road,
Mattituck, NY; County Tax Map Parcel ID #1000-113-8-5
containing a total of 3.7648 acres.
8:55 p.m. Appl. No. 4069 - TROY AND JOAN GUSTAVSON. Request
for reversal of determination of the Building Inspector, or
alternatively a Variance to the Zoning Ordinance, Article III,
Section 100-31C(4b) {by reference to Article X, Section
100-101C} for permission to establish lighting "for after dark
use of an accessory paddle ball court (also referred to as a
platform tennis court structure)." After-dark use is prohibited
under the provisions of the zoning ordinance relative to
accessory tennis court structures. Location of Property: 7785
Main Road, Mattituck, (Laurel School District), NY; Lot #1,
Minor Subdivision Map of Sunbow Associates; County Tax Map
Parcel No. 1000-122-6-29.1.
(3)
RESOLUTIONS/MISCELLANEOUS:
A. Motion was made by Chairman Goehringer, seconded by
Member Doyen, and duly carried, to approve the Minutes of the
following Meetings as submitted (and carried over from the last
meeting's agenda):
October 24, 1991 Regular Meeting
September 26, 1991 Regular Meeting.
B. The following actions were also taken under SEQRA, as
prepared and posted on the Town Clerk's Bulletin Board:
TYPE II (SEQRA processing not under ZBA jurisdiction): 1. Appl. No. 4070 - DALCHET CORPORATION (W. ORLOWSKI).
2. Appl. No. 4071 - JOSEPH F. BARSCZEWSKI
3. Appl. No. 4072 - LINDA AND VARUJAN ARSLANYAN.
4. Appl. No. 4073 - EUGENE CUMMINGS.
UNLISTED:
5. Appl. No. 3975 - ARTHUR G. CARLSON. Previous
SEQRA determination form to include amendment for
interpretation under agricultural section of the
code only.
MISCELLENOUS: Ail new applications were scheduled for FIELD
INSPECTIONS AND/OR REPORTS as early as possible (before
scheduling and advertising for public hearings).
MISCELLENOUS - OTHER UPDATES:
A. Chairmanship for 1992. The Board Members
unanimously supported Chairman Goehringer for his reappointment
and authorized a letter to the Town Board advised them of the
Board's request for his reappointment for 1992.
NEW APPLICATIONS - On motion by Chairman Goehringer, seconded by
Mr. Grigonis, it was
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RESOLVED, that the following matters be and hereby are
authorized to be advertised for public hearings for the MARCH 2,
1992 REGULAR MEETING OF THIS BOARD:
(a) Appl. No. 4075 - MICHAEL HERBERT (reconvened after
on-site inspection of the building under consideration). 795
Pike Street, Mattituck.
(b) Appl. No. 4083 - LEONAi{D AND DONNA SCHLEGAL.
over 4 ft. height. 1475 Home Pike Road, Mattituck.
Fence
(c) Appl. No. 4071 - JOSEPH F. BARSZCZEWSKI, JR. New
building at 145 Kerwin Boulevard, Greenport.
(d) Appl. 4084 - MARY C. BRENNAN. Open porch (deck).
Champlin Place, Greenport.
319
(e) Appl. No. 4074 - AMAC, INC. (S. ILGIN). Proposed
convenience store as an accessory to existing gasoline service
station. Route 25 and Old Main Road, Mattituck.
(f) Appl. No. 4082 - PHILIP J. AND MARILYN CENTONZE. Area
variance for the addition of a professional dental office in
this Residential Office Zone District. County Road 48,
Mattituck.
(g) Appl. No. 4081 - PHILIP J. AND MARILYN CENTONZE.
Special Exception to establish professional dental office in
this RO Zone District. CR 48, Mattituck.
(h) Appl. No. 4076 - FUTURE SCREW MACHINE PRODUCTS, INC.
(W. HUFE). Setback variance for storage addition at w/s of
existing machine shop. CR 48, Southold.
(i) Appl. No. 4068 - ELEANOR SIEVERNICH. Upland area of
this two-lot minor subdivision and lot width of proposed Lot
~2. Cox Neck Road, Mattituck.
Vote of the Board: Ayes: Messrs. Doyen, Grigonis,
Dinizio, Villa and Goehringer. This resolution was duly adopted.
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ACTION OF THE BOARD
Appl. No. 4066.
Application in behalf of WILLIAM GOODALE for a Special
Exception to the Zoning Ordinance, Article X, Section
100-101B(12) for permission to establish new use for outside,
on-premises motor vehicle sales and leasing, and related
business office, in conjunction with pre-existing nonconforming
residential use. The subject premises is located in the "B"
General Business Zone District and a Pre-Certificate of
Occupancy indicates that the premises has been improved and
occupied with two principal buildings, each with one
single-family dwelling use, This parcel contains a lot area of
36,155 sq. ft. and lot width of 120 feet. Location of
Property: 7655 Main Road, Laurel, NY; County Tax Map Parcel
No. 1000-122-06-30.1 (or 30).
WHEREAS, after due notice, a public hearing was held on
November 21, 1991 and at said hearing all those who desired to
be heard were heard and their testimony recorded; and
WHEREAS, the Board has carefully considered all testimony
and documentation concerning this application; and
WHEREAS, Board members have personally viewed and are
familiar with the premises in question and the surrounding
areas; and
WHEREAS, the Board made the following findings of fact and
determination:
1. The premises in question is located in the "B" General
Business Zone District in the Hamlet of Mattituck, Town of
Southold, and is more particularly identified on the Suffolk
County Tax Maps as District 1000, Section 122, Block 6, Lot 30.1
(previously 30)..
2. The subject parcel contains a total area of 36,155 sq.
ft. (.83 acre) with a frontage of 120.0 feet along the north
side of State Route 25 (Main Road). The average depth of the
parcel is 402+- feet. This parcel is improved with two
principal structures, each containing a nonconforming
-6-
single-family residential use, which structures were built prior
to April 23, 1957 and are shown on the April 11, 1986 survey
prepared by Anthony W. Lewandowski, L.S.
3. By this application, a review and determination is
requested concerning the following proposed uses, requested to
be authorized by Special Exception:
(a) proposed outside sales, storage, parking and
display of used cars and other used vehicles;
(b) proposed sales, leasing, and business office
uses, to be located as a secondary principal use in the front
building, in addition to the existing principal residential use
of this building and existing principal residential use of the
rear cottage structure. The square footage of the building area
intended for office sales and business uses is 662 sq. ft., and
the use of the existing residence would be limited to
approximately 640 sq. ft. (the second floor only of the front
building).
4. The provisions of the zoning code under which this
application has been made is Article X, Section 100-10lB(12)
which reads as follows:
.... 100-101B. Uses permitted by special exception by
the Board of Appeals. The following uses are
permitted by the Board of Appeals, as hereinafter
provided, subject to site plan approval by the
Planning Board: ...
(12) Public garages, gasoline service stations,
new and used motor vehicle lots, vehicle sales and
rental, including the sale of recreation vehicles and
trailers and boat sales, with accessory repair
facilities, all subject to the following requirements:
(a)
Entrance and exit driveways shall have an
unrestricted width of not less than twelve
(12) feet and not more than thirty (30) feet
and shall be located not less than ten (10)
feet from any property line and shall be so
laid out as to avoid the necessity of any
vehicle backing out across any public
right-of-way.
(b)
Sale of used vehicles or boats shall be
conducted only as accessory to the sale of new
vehicles or boats.
(c) Vehicle lifts or pits, dismantled autombiles,
-7-
boats and vehicles and all parts or supplies
shall be located within a building.
(d)
Ail service or repair of motor vehicles, other
than such minor servicing as change of tires or
sale of gasoline or oil, shall be conducted in
a building.
(e)
The storage of gasoline or flammable oils in
bulk shall be located fully underground and not
less than thirty-five (35) feet from any
property line other than the street line.
(f)
No gasoline or fuel pumps or tanks shall be
located less than fifteen (15) feet fro any
street or property line.
(g)
Outdoor area lighting shall be that generally
required for security purposes and shall be
restricted to the front one-third (1/3) of the
lot depth. All outdoor lighting shall be
located at a height of not more than fourteen
(14) feet above ground level and so directed
that illumination should not extend beyond lot
lines.
(h)
No gasoline service or repair shops or similar
businesses are to be located within three
hundred (300) feet of a church, public school,
library, hospital, orphanage or rest home...
5. Reference is also made to the following requirements of
the zoning code and other zoning information relative to this
project and premises:
(a) a Pre-1957 Certificate of Occupancy 9Z10885 dated
March 1, 1982 relates to two nonconforming one-family dwellings
with accessory storage;
(b) Certificate of Occupancy #Z12534 dated June 11,
1984 relates to an addition to the existing one-family dwelling
for residential/storage purposes. At the time of issuance of
this Certificate, no uses were established at the premises
except for two single-family residences;
(c) subsequently, on June 4, 1986, an application was
made to the Board of Appeals under the bulk schedule of the
zoning code {our File No. 3521} for permission to reduce living
area in one of the nonconforming dwelling units in order to add
an accessory home occupation, to wit: lawyer's office for
· Andrew Goodale which in 1986 would be permitted only as an
accessory to the residence of the professional. The accessory
home occupation (lawyer's office) was proposed to be located
within the existing residential area of the front principal
building, without physical enlargement of the principal
structure and without expansion of any nonconforming living
areas remaining at the premises. The Bulk Schedule of the
zoning code (Section 100-31) in 1986 required a minimum livable
area of 850 sq. ft. per dwelling unit. A variance was granted
to allow a reduction in the livable floor area of the dwelling
unit to 767 sq. ft., however, no occupancy was made by Andrew
Goodale, the owner/applicant in 1986. It is personal knowledge
of board members that the premises was used solely for
single-family residential occupancy, without change for an
accessory home occupation-lawyer's office, as the permit records
show over the years. Although there was some interest in 1986
to add the accessory lawyer's office, the interest was abandoned
by Andrew Goodale over the next year or so.
(d) Subsequently in 1991, a third new principal use
was added, without town approvals, for used-car sales and
leasing, and for which this Special Exception is now being
requested. {Approvals are also necessary by the Town Planning
Board under the site plan regulations of the zoning code, as
well as the Town Building Department, and other County and State
governing agencies.~
6. Section 100-101C, subsections (1-4) of the General "B"
Business zoning regulations provide for specific uses which are
permitted as accessory uses and subject to site plan review.
Used car sales and leasing and principal sales office use are
uses addressed in the Zoning Code as principal office use, and
are clearly not permitted as an accessory to any principal
residence or other principal uses (with the exception of an
established, on-site, new-car dealership with an area of not
less than 30,000 sq. ft. applicable to each principal use).
7. For the record, it is noted that the parcel is
nonconforming as to total area for the two principal residential
uses. The total lot area of this parcel is 36,155 sq. ft., and
the total lot area required under the current zoning code for
each residential unit under the zoning code is 30,000 sq. ft. in
this "B" Zone District, for a total requirement of 60,000 sq.
ft. The requirement for a third principal use is the same,
30,000 sq. ft. Therefore, the total lot area required for
three principal uses is 90,000 sq. ft. of land area -- which
has not been made available in this application. Such a
substantial increase in the degree of land nonconformance over
the existing established residential nonconformities is not
permitted as a matter of right and variances necessary (ref.
Article XXIV, Bulk and Minimum Lot Size, Density Schedules,
etc.).
9. In considering this application, the Board finds that
sufficient proof has not been demonstrated, nor documentation
submitted, to show full compliance with all those conditions and
standards set forth in the Southold Town Zoning Code for such a
Special Exception request. In fact, it is understood that the
applicant/owner has not obtained authorization and is not
licensed by the State of New York or any other licensing or
permit agencies to sell new cars. Additionally, the zoning code
requires a minimum of 30,000 sq. ft. per principal use in this
business zone district, and accordingly, a minimum lot size of
90,000 sq. ft. is required before a third principal use may
occupy the premises - whether it be by Special Exception or
otherwise.
NOW, THEREFORE, on motion by Mr. Dinizio, seconded by
Mr. Goehringer, it was
RESOLVED, that the Special Exception be and hereby is
DENIED, as noted above and additionally noted below:
1. There is insufficient square footage on the site to
support approval of a third primary or principal use;
2. The parking, service, repair and other activities
related to new-car sales and used-car sales has not been
provided on the plans and are areas of concern which normally
affect on-site circulation, traffic flow onto the Main Highway,
egress and ingress, noise levels, sanitation, pollution, and
other environmental considerations;
3. Mixed residential and commercial activities are not
permitted in this B General Business Zone District;
4. The lot area and premises are nonconforming as exist
since two single-family residences are not permitted on less
than 60,000 sq. ft. (30,000 sq. ft. per unit) of land area in
this B General Business Zone District;
5. The applicant has not complied with the requirements
and standards set forth in the Code for these proposed used-car
sales and related commercial operations.
Vote of the Board: Ayes: Messrs. Goehringer, Doyen,
Grigonis, Dinizio and Villa. This resolution was duly adopted
(5 0 margin).
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ACTION OF THE BOARD
~on application of PETER D. AND MARIE L. PIZZARELLI.
Request for Variance to the Zoning Ordinance, Article III,
Section 100-3iA(i), for permission to change use of an existing
accessory building from strictly sleeping quarters use to
single-family dwelling use and occupancy with cooking/kitchen
facilities. The subject premises is located in the R-80
Residential Zone District and contains a total area of 2.979
acres, as shown on the Minor Subdivision Map before the Town
Planning Board dated August 12, 1982 (Lot $3). Location of
Property: Private right-of-way extending from the south side of
Indian Neck Road, Peconic, NY; County Tax Map Parcel No.
1000-98-5-14.3.
WHEREAS, after due notice, a public hearing was held on
November 21, 1991, and all those who desired to be heard were
heard and their testimony recorded (both pro and con - see
letters in file and verbatim transcript of testimony also in
file);
WHEREAS, the Board has carefully considered all testimony
and documentation submitted concerning this application;
WHEREAS, Board Members have personally viewed and are
familiar with the premises in question, its present zoning, and
the surrounding areas; and
WHEREAS, the Board made the following findings of fact:
1. By this application, appellants seek a variance under
Article III, Section 100-31A for permission to change use of an
existing accessory building from strictly sleeping quarters use
to single-family dwelling use and occupancy with cooking/kitchen
facilities.
2. The subject premises contains a total lot area of 2.979
acres and is improved with one principal structure occupied as a
single-family residence, and improved with two accessory
buildings, one converted for family sleeping quarters use and the
other for garage/storage purposes.
~age 11- Appl. No. 4063
Matter of PETER AND MARIE PIZZARELLI
Decision Rendered December 16, 1991
ohher for garage/storage purposes.
3. The dwelling as exists is shown to be set back
approximately eight feet from the top of the bank near Peconic
Bay highwater mark and approximately 656 feet from the most
northerly (front) property line. The accessory building utilized
for sleeping quarters is located 650+- feet from the northerly
(front) property line, 24+- feet from the westerly (side)
property line, and 83+- feet from the top of the bank near the
Peconic Bay highwwater mark. The accessory storage building was
converted by Building Permit No. 12904Z to a three-car garage and
is located north of the existing principal dwelling structure.
4. For the record, the following data is noted for
reference and consideration:
(a) approval was found indicated that this parcel is
known as Lot #3 and a part of a minor subdivision approved by the
Southold Town Planning Board on April 16, 1973 in the name .of
Andrew Hahn - during the period of one-acre residential zoning.
One of the requirements set by the Planning Board at that time
was a filed covenant that there be no further subdivision;
(b) subsequently, on July 29, 1982, an application was
made and conditionally approved by the Southold Town Board of
Appeals under Appl. No. 2986 for approval of the conversion of
one of the existing accessory buildings permitting two bedrooms
as sleeping quarters for the applicant's mother-in-law (family)
and guest use;
(c) the premises continued, up until May 1983, to be
zoned one-acre residential;
(d) during October 1987, the applicants asked the
.Planning Board to consider lifting its requirement that there be
~ no subdivision in order to apply further to set off a 40,000 sq.
ft. area for the guest cottage use, which minimum lot area was to
be applied for the guest cottage use as conditioned by the Board
of Appeals in its 1982 variance determination. {The requirement
during 1982 was 40,000 sq. ft. of land area for each principal
use, requiring compliance should a further subdivision be
sought.
5. Article III, Section 100-31A, and Bulk/Area/Parking
Schedule of the Zoning Code, requires a minimum of 80,000 sq. ft.
of land area to be applied to each residential use. Thus, the
total lot area of this parcel is 2.979 acres (129,765+- sq. ft.),
which will not meet today's requirement for two residential uses
on a single parcel of land. The Southold Town Zoning Code does
not permit more than one dwelling on a parcel, and the conversion
of the accessory sleeping quarters for cooking facilities defines
Southold Town Board of Appeals
-12-
December 16, 1991 Regular
Meeting
(Appl. No. 4063 - PIZZARELLI, decision)
6. In considering this application, the Board finds:
(a) the relief requested is limited to the
installation of a cooking unit, which in the Board's opinion is
not substantial in relation to the existing use of this accessory
structure {as sleeping quarters for family member};
(b) the practical difficulties claimed are not
uniquely related to the property, although it is related to the
the effects of zoning over the last 10+ years {see Paragraph 4,
supra};
(c) the intent of the owner during the prior variance
was and still is to permit occupancy of the accessory building by
an immediate family member {88-yr. old mother-in-law of the
owner};
(d) the placement of a cooking unit for occasional use
may be placed without requiring major structural alterations and
it should be further noted that there are counter-top cabinets
and a sink existing in the accessory building (first entry room
or living room/den area);
(e) since the owner/applicant has agreed to limit the
size of the accessory building, without further expansion or
enlargement, the grant of the relief as requested will be only
inside the existing accessory building, without obvious aesthetic
or other visible changes to the outside of the building or the
surrounding property area;
(f) it is the position of this Board that since the
accessory building has always been intended for family use, that
the Board has no objection to the use continuing, provided its
use is without profits from rents or leases in the future by
non-family members, and that any change in this owner-family
occupancy will require further consideration and approval from
the Board of Appeals in the form of a use variance;
(g) in view of all the above, the interests of justice
will be served by limited, minimal relief as conditionally noted
below.
Accordingly, on motion by Member Dinizio, seconded by
Member Villa, it was
RESOLVED, to GRANT a Variance for permission to install a
cooking unit in the existing accessory building SUBJECT TO THE
FOLLOWING CONDITIONS:
1. That the use of this accessory building is limited to
the size of the building, as exists only; there shall be no
Page 13 - Appl. NO. 4063
Matter of PETER AND MARIE PIZZARELLI
Decision Rendered December 16, 1991
1o That the use of this accessory building is limited to
the size of the building, as exists only; there shall be no
expansion, additions, extensions or other major structural
alterations to this accessory building unless further variances
are obtained, unless the accessory building is converted to a
storage or garage structure without sleeping quarters in
accordance with the zoning code. {In the event of a further
different subdivision or set-off application concerning this
2.979 acre parcel, a new formal application, for consideration
under the new zoning laws in effect for the new project, will be
required, particularly if this building is not converted to a
conforming principal building (one principal dwelling structure
per lot), or as an accessory storage/garage building (accessory
and incidental to a new principal building which may be
proposed)};
2. That this accessory building not be operated for profit,
such as a rental lease or other type of rental arrangement and
shall remain accessory and incidental to the main principal
residence on this parcel;
3. That the Board of Appeals reserves the right to reopen
the hearing as it may deem necessary at any time; and within a
reasonable time upon receiving the owner's written annual
request, the Board reserves the right to renew this variance and
inspect the building (after notice to the owner) in the event it
has been found that circumstances have changed which may
substantially affect the conditions of this'approval;
4. That the Board of Appeals also reserves the right to
automatically terminate this variance five (5) years from the
date of this resolution, reverting the use of this building to
strictly sleeping quarters as granted under Appl. No. 2986 on
July 29, 1982.
VOTE OF THE BOARD: AYES:
Grigonis, Dinizio and Villa.
(5-0 margin).
Messrs. Goehringer, Doyen,
This resolution was duly adopted
GG:lk
GERARD P. GOEHRINGER, CHAIRMAN
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ACTION OF T~E BOARD OF APPEALS
Upon Application No. 3970 dated November 19, 1991 made by COFAM
REALTY COMPANY for a Special Exception to the Zoning Ordinance,
for a fast-food restaurant and a drive-through restaurant window
facility. Provisions of the Zoning Code under which this
application has been made is Article X, Section 100-10lB.
WHEREAS, after due notice, public hearings were held on
March 8, 1991, April 5, 1991, and November 21, 1991, at which
time all persons, corporations, organizations and the like, who
desired to be heard were heard and their testimony recorded; and
WHEREAS, the Board has carefully considered all testimony
and documentation submitted concerning this application; and
WHEREAS, the Board members have personally viewed and are
familiar with the premises in question, its present zoning, and
the surrounding areas; and
WHEREAS, the Board made the following findings of fact:
SITE INFORMATION
1. The premises in question is located along the south
side of the Main Road (State Route 25) in the Hamlet of
Mattituck, Town of Southold, and is identified on the Suffolk
County Tax Maps as District 1000, Section 122, Block 7, Lot 3.1.
2. The subject premises is vacant land and consists of a
total area of 130,621 sq. ft. (2.9986 acres), with 371.37 ft.
frontage along the Main Road and 317.14 ft. along Old Main Road.
3. Architectural renditions have been furnished for
reliance by the board members in making this determination which
shows the building to be of cape-cod design. It should be noted
that the architectural renditions are also before the Town
Planning Board. Architectural reviews will also be required by
the Town Planning Board when processing the site plan
application under the site plan regulations of the zoning
code. Also in considering this application, site plan
elements, egress, ingress, accessory parking, etc. as proposed
by the applicant ~'e more particularly shown on the maps prepared
by Raymond F. Fellman, A.I.A. (site plan maps lastly dated
June 7, 1991; Water and Sewer Plan SP-3 dated 9-23-91; etc.).
Page 15- Appl. No. 3970-SE
Matter of COFAM REALTY
Decision Rendered December 16, 1991
IMPROPER PARTY STATUS
4. During the initial stage of this project, an
application was filed with the Southold Town Planning Board for
site plan approval (which has not been decided as of this date
and is pending site plan reviews) and with the Southold Town
Board of Appeals, both filed by McDonald's Corporation through
its agents and/or attorneys for the proposed:
(a) establishment of a fast-food restaurant, and
(b) establishment of a drive-thru window restaurant.
5. After the first and second hearings, the following
factors became apparent:
(a) The applicant, McDonald's Corporation, did not
appear to be a proper party to this application since McDonald's
Corporation, although claiming on the written documentation to
be a Contract Vendee, was neither a Contract Vendee or the
owner. The application therefore was not properly before the
Board of Appeals up until the date of the final hearing in
November 1991.
(b) Rather than conclude the hearing process and
continue with a defective application, the applicant and parties
involved were advised of this defect, by written notice, and
were provided with an opportunity to bring a proper party.
(c) On November 19, 1991, two days prior to the final
hearing under Application No. 3970, CoFam Realty, the landowner,
made application to this Board as a proper party for a "Special
Excepti6n for a proposed restaurant under Article X, Section
100-101B, subsection 9 .... " It is believed, however, that the
original applicant intends in the future to sign a Contract of
Sale with MTK Enterprises, which corporation or partnership
may be a tenant under a lengthy, conditional
vacant-property Lease made by the present landowner (CoFam
Realty) becoming effective once a~l permits to build and occupy
were issued and complied with. (At no time, was documentation
submitted which sufficiently shows a direct interest between the
applicant McDonald's Corporation and the owner of the
property.)
6. This Board is pursuing the application process for the
applicant-owner, CoFam Realty with the owner's intent to
establish a restaurant pursuant to those standards and
conditions for such a Special Exception set forth in the
Southold Town Zoning Code.
Page 16- Appl. No. 3970-SE
Matter of COFAM REALTY
Decision Rendered December 16, 1991
RESTAURANTS BY CODE DEFINITIONS
7. A "restaurant" is defined in the Southold Town Zoning
Code under Section 100-13 as follows:
" Any premises where food is commercially
sold for on-premises consumption to patrons
seated at tables or counters. Any facility
making use of a carhop or parking lot service
to cars or for the consumption of food to be
eaten in said cars or outdoors shall not be
considered a "restaurant" for the purpose of
this (zoning) chapter and shall be deemed to
be a "drive-in or fast-food restaurant."
8. Such a "restaurant" which is only for patrons seated at
tables or counters is permitted subject to site plan approval by
the Town Planning Board in the following Zone Districts:
(a) per Section 100-91A(7)
(b) per Section 100-101A(2)
(c) per Section 100-81A(2d)
- Hamlet Business
- General B Business
- Light Business.
9. A "fast-food restaurant" is defined in the Southold
Town Zoning Code under Section 100-13 as follows:
RESTAURANT, DRIVE-IN OR FAST FOOD - Any establishment
whose principal business is the sale of foods, frozen
desserts, or beverages to the customer in a ready to
consume state, usually served in paper, plastic or
other disposal contains, for consumption within the
restaurant building, elsewhere on the premises or for
carryout for consumption off the premises.
A fast-food restaurant or a drive-in restaurant each requires a
minimum of three acres per use (Section 100-101B9).
10. A "drive-thru or drive-up" restaurant is a use other
than a carhop or drive-in facility as defined in our zoning
code. The inside counter service, which is the norm available
for patrons to purchase foods for consumption off the premises
is not accessible, and instead motor vehicles are used for
accessibility between the building and off-premises consumption
instead of passengers leaving parked cars.
11. A minimum of three acres of land is required for each
restaurant use, regardless of whether it is a table-service
restaurant, a fast-food restaurant, or a car-hop restaurant
use. In this instance, the premises does not consist of more
than three acres and may only be permitted one restaurant use.
Pagel7 - Appl. No. 3970-SE
Matter of COFAM REALTY
Decision Rendered December 16,
1991
APPLICANT'S TWO PROPOSED RESTAURANT FACILITIES
12. The applicant has requested a Special Exception for
both a fast-food restaurant and a drive-thru restaurant. From
testimony during the hearings, it is evident that the fast-food
corporation intending to enter into a Contract of Sale with the
current owner is proposing not only a fast-food restaurant with
a food counter for removal to on-site tables or off-premises
consumption, but also a separate restaurant area for access from
an area other than a parking lot and solely by motor vehicles.
The applicant has also indicated that such a secondary
restaurant use will provide 40% or more of the business.
13. Such a "drive-thru restaurant" is clearly not a carhop
facility defined in our zoning code, and it is clearly in this
Board's determination a secondary restaurant use able to operate
independently and separate from a fast-food table/counter
restaurant use.
14. The area to be utilized for the "drive-thru
restaurant" is also not in an area utilized as a parking lot,
and instead utilizes that area used by all other vehicles
entering and exiting the subject premises, which also has an
increase of vehicular traffic congestion within the site, which
in turn causes increased risk and danger to pedestrians entering
the building from the parking lot(s).
CODE STANDARDS FOR SPECIAL EXCEPTIONS
15. Article XXVI, Section 100-263, Sub-paragraphs A
through F of the Zoning Code provides several standards, which
standards the Board Members have considered concerning the use
of the fast-food restaurant only in this Special Exception
application.
16. Other considerations by the Board were also given,
among other things, to sub-paragraphs A through P of Section
100-264.
17. Another area also considered at length by the Board is
the issue of the removal of solid waste and its effects upon
town facilities. The applicant has agreed to ship the solid
waste resulting from this proposed fast-food restaurant and
related uses out of town and not to utilize the Southold Town
landfill during operation of this new business. (The Town has a
court action pending at this time and consideration of the
effects of such new restaurant uses and their effects,
cumulatively or otherwise upon the town landfill, if permitted
by the State to remain open, must be further evaluated.)
Page 18- Appl. No. 3970-SE
Matter of COFAM REALTY
Decision Rendered December 16,
1991
NOW, THEREFORE, on motion by Mr. Dinizio, seconded by
Mr. Goehringer, it was
RESOLVED, to DENY that portion of the subject application
as it pertains to a "drive-thru or drive-up restaurant", since
this use is not'permitted in this zone district; and
BE IT FURTHER RESOLVED, to GRANT a Special Exception under
Article X, Section 100-101B(9), for the establishment of a
fast-food restaurant only as defined and described in paragraph
#9, supra, and SUBJECT TO THE FOLLOWING CONDITIONS:
1. An emergency exit must be made available off of Old
Main Road for fire and emergency purposes;
2. Sufficient on-site parking areas must be made available
for numerous transient buses as recommended by the Southold Town
Planning Board;
3. No directional, advertising or other off-premises signs
shall be permitted.
4. No other separate business or restaurant use shall be
permitted other than a fast-food restaurant use.
5. This Special Exception approval is limited to that
applied for and shown for consideration as per the plans
and drawings submitted to this Board, and any change in the
footprint of the building requires re-application for
re-consideration, after proper notice and public hearing. An
original final site plan print shall be furnished to the Board
of Appeals for review prior to PS* Chairman's signing of the
final maps for updating purposes, acquiescence, and permanent
record-keeping purposes (without the need for further hearing,
etc. for such review).
VOTE OF THE BOARD: AYES: Messrs. Goehringer, Dinizio and
Doyen. NAYES: Members Villa and Grigonis. (Members Villa and
Grigonis felt the application should be denied in its entirety
for several reasons: out of character with the area, there is a
better profitable use to which this property may be used,
excessive burdens on governmental facilities, etc.).
This resolution was duly adopted with a 3-to-2 margin.
lk
GERARD P. GOEHRINGER, CHAIRMAN
*Planning Board
-19-
ACTION OF THE BOARD OF APPEALS
Appl. NO. 4069:
Application of TROY AND JOAN GUSTAVSON for reversal of
determination of the Building Inspector, or alternatively a
Variance to the Zoning Ordinance, Article III, Section
100-31C(4b) {by reference to Article X, Section 100-101C~ for
permission to establish lighting for after-dark use of an
accessory paddle ball court (also referred to as a platform
tennis court structure)." After-dark use is prohibited under
the provisions of the zoning ordinance relative to accessory
tennis court structures. Location of Property: 7785 Main Road,
Mattituck (Laurel School District), NY; Lot #1, Minor
Subdivision Map of Sunbow Associates; County Tax Map Parcel No.
1000-122-6-29.1.
WHEREAS, after due notice, a public hearing was held on
December 16, 1991, and at said hearing all those who desired to
be heard were heard and their testimony recorded; and
WHEREAS, the Board has carefully considered all testimony
and documentation submitted concerning this application; and
WHEREAS, the Board Members have personally viewed and are
familiar with the premises in question, its present zoning, and
the surrounding areas; and
WHEREAS, the Board made the following findings of fact:
1. A Notice of Disapproval was issued on November 1, 1991
by the Town Building Inspector for the issuance of a modified
permit to have lighting for after-dark use relative to an
accessory platform/tennis court structure. For the record, it
is noted that a building permit was issued on August 29, 1991
"...to install (accessory) platform tennis court as applied for
with no lighting for after dark use and not to exceed 18 feet in
height (see Permit ~20109).
2. It is the intention of the owners/applicants to utilize
the accessory platform tennis court structure for after dark
hours as well as using built-in lighting as may be necessary
-20-
before dark or after dark. The two-tube low-intensity
flourescent (quartz) lighting is located along the inside top
portion of the walls of the court, approximately 18 to 20 feet
above the deck aimed directly at the interior of the court'
surface. The outside dimensions of the court are 31 ft. deep by
61 feet long, containing a total area of 2,257 sq. ft. This
court is considered an accessory use and an accessory structure
located separately from the principal building in the rear yard
area. The setbacks of the court are shown to be at not less
than 10 feet from the westerly property line and 16 (+-) feet
from the northerly rear property line. This platform/tennis
court structure shall be operated only as an accessory use
incidential to the existing principal use of the premises, and
may not be operated for profit and/or as a separate business
venture.
3. The premises in question is known as Lot 91 on the
Subdivision Map of Sunbow Associates and contains a total lot
area of 49,585 sq. ft. Ail improvements to this parcel as
exist are shown and described on the site plan map prepared by
Garrett A. Strang, R.A. as revised July 25, 1991. A copy of
Certificate of Occupancy No. Z16874 dated May 16, 1988 was
furnished for the record concerning the newly constructed
newspaper building.
4. It is also noted that the reviews have been made and
site plan approval received from the Southold Town Planning
Board for the subject accessory platform tennis court structure
(which site plan map did not show additional lighting but did
site the footprint of the structure).
5. It is the position of the Board in considering this
application that the Building Inspector was correct in his
determination that a variance was necessary for lighting with
intentions for after-dark use of the platform tennis court. It
is also the position of the Board that since the hours of
daylight vary from month to month, it would be appropriate to to
define further the intent of the limitation of the use by the
wording of Article III, Section 100-31C(4b) of the zoning
ordinance, which restricts use "to before-dark or during
daylight use" to hourly use to normal daylight hours and in no
event later than 10:00 p.m. during any and all times of the
year.
NOW, THEREFORE, on motion by Mr. Villa, seconded by
Mr. Goehringer, it was
RESOLVED, to GRA/qT a Variance in the Matter of the
Application of 4069 for a building permit for built-in lighting
as described in Paragraph 92, supra, and to permit after-dark
-21-
use of the accessory platform tennis court structure, SUBJECT TO
THE FOLLOWING CONDITIONS:
1. After-dark use is limited to 10:00 p.m.
2. The accessory structure shall not be used as a
profitable business use, and its future use shall not be
governed by the collection of fees.
3. The platform tennis court structure shall be used only
as an accessory use incidential to the principal use of the
premises.
Vote of the Board: Ayes: Messrs. Goehringer, Doyen,
Grigonis, Dinizio and Villa. This resolution was duly adopted
(5-0 margin).
There being no further business coming before the Board at
this time, the Chairman declared the meeting adjourned.
/~proved - March 5, ~92 .
Respectfully submitted,
Linda F. Kowalski
AND FILED