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HomeMy WebLinkAbout2419 TOWN OF $OUTHOLD, NEW YOE3~ ACTION OF THE ZO~FL~G BOAI~D OF APPEALS AppealNo. 2419 Dated May 8, 1978 ACTION OF THE ZONING BOARD OF APPEALS OF THE TOWN OF SOUTHOLD To Matt-A-Mar Marina, Inc. c/o Gary F. Olsen, Esq. MaLtituck, New York 11952 DATE _J._~...n...e.......1...5.., 1978 Appellant at a meeting of the Zoning Board of Appeals on June 1, was considered and the action indicated below was taken on your ( ) Request for variance due to lack of access to property ( ) Request for a special exception under the Zoning Ordinance ( ]~ Reques~ for a valance to the Zonhlg Ordinance ( ) 1978 the a~eal 1. SPECIAL EXCEI~ION. By res~uV~on of the Board it was determined that a special exception ( ) be gra~ed ( ) be denied pursua~ to Article .................... Sect~n .................... S~section .................... paragraph .................... of the Zoning Ordinance and the dec~ion of the Building I~pector ( ) be reversed ( ) be co~ffmed b~a~e 8:55 P.M. {D.S.T.} upon application of Matt-A-Mar Marina, Inc., c/o Gary F. Olsen, Esq., Main Road, Mattituck, New York, for a variance in accordance with the Zoning Ordinance, Article VII, Section 100-70 and Bulk and Parking Schedule for permission to sell retail boats. Location of property: Wickham Avenue, Mattituck, New York, bounded on the north by Baker; east by Wickham Avenue; south by Mattituck Creek; and west by Mattituck Creek. 2. VA_~IANCE. By resolution of the Board it was determined that (a) Strict application of the Ordinance (would) (wowld not) produce practical hardship because difficulties or unnecessary SEE REVERSE (b) The hardship created (is) (i~ not) unique and (would) (would not) be shared by all properties alike in the immediate vicinity of this property and in the same use district because SEE REVERSE (c) The variance (does) (does not) observe the spirit of the Ordinance and (would) change the character of the district because (wonld not) SEE REVERSE and therefore, it was further determined that the requested variance ( ) be granted ( that the previous decisions of the Building Inspector ( ) be confirmed ( ) be reversed. be denied and SEE REVERSE FORi~I ZB4 APPROVED ~"-~ ~ ^ --,-~o .ZONING BOARD OF APPEALS / ./I After investigation and inspection, the Board finds that the applicant requests permission for the retail sale of boats on his premises. The Board finds that that the public convenience and welfare and justice will be served and the legally established or permitted use of the neighborhood property and the adjoining use districts will not be permanently or substantially injured and the spirit of the Ordinance will be observed. On motion by Mr. Gillispie, seconded by Mr. Bergen, it was resolved that Matt-A~Mar Marina, Inc., c/o Gary F. Olsen, Esq. Main Road, Mattituck, New York, be GRANTED permission to sell used or new boats upon the condition that there not be stored for resale any new boats in excess of 50 feet, and no more ~han 15 new boats at one time. The used boats will be in the water. Vote of the Board: Ayes: Messrs: Gillispie, Bergen, Grigonis and Doyen. ilwidth and area. Location of property: Lots No. 17 and 18 on iMap No. 3864, Stars Manor, East Marion, New York. i! 8:20 P.M. (D.S.T.) upon application of Robert Heine, c/o !iFrederick J. Tedeschi, Esq., 403 Main Street, Greenport, New York, !for a special exception to the Zoning Ordinance, Article III, iSection 100-30 B(1) for permission to convert existing one-family dwelling into a two-family dwelling. Location of property: Knapp Place, Greenport, New York, bounded on the north by Knapp Place, east by Clarence Begley; south by M. Straussner; and west by Main Street. 8:35 P.M. (D.S.T.) upon application of Drosses Restaurant, Route 25, Greenport, New York, for a Special Exception to the Zoning Ordinance, Article III, Section 30 C 6(f) for permission !to erect off premises sign. Location of property: West side of Albertson Lane, Greenport, New York, bounded on the north by County Road 27; east by Albertson Lane; south by Colony Road; and west by Shorecrest Subdivison. 8:45 P.M. (D.S.T.) upon application of Bayview Resort, Inc. . i Bayvlew Road Southold, New York, for a variance in accordance i!wi~h the Zoning Ordinance, Article III, Section 100-35 A to !construct a five (5) foot fence in the front yard. Location of property: Bayview Road, Southold, New York, bounded on the north by Main Bayview Road; east by Victoria; south by Corey Creek; and west by Young and Koke. 8:55 P.M. (D.S.f.) upon application Matt-A-Mar Marina, Inc.~ ~/o Gary F. Olsen, Esq. Main Road, Mattituck, New York, fear a variance in accordance with ~he Zoning Ordinance, Article VII, Section 100-70 and Bulk and Parking Schedule for permission to sell retail boats. Location of property: ~ Wicham AVenue, Mattituc~ bounded on the north by Baker; east by Wickham Avenue; south by ~Mattituck Creek; and west by Mattituck Creek. ii 9:05 P.M. (D.S.T.) upon application Matt-A-Mar Marina, Inc. !!c/o Gary F. Olsen, Esq., Main Road, Mattituck, New York, for a !variance in accordance with the Zoning Ordinance, Article VII, ilSection 100-70 and Bulk and Parking Schedule for permission to ilconstruct a boat storage building. Location of property: ilWickham Avenue, Mattituck, New York, bounded on the north by !Baker; east by Wickham AVenue; south by Mattituck Creek; and west by Mattituck Creek. Dated: May 15, 1978 BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS PLEASE PUBLISH ONCE, MAY 18, 1978, AND FORWARD NINE (9) AFFIDAVITS OF PUBLICATION TO THE SOUTHOLD TOWN BOARD OF APPEALS iMAIN ROAD, SOUTHOLD, NEW YORK PRIOR~D THE MAY 25, 1978, MEETING. Copies mailed to the following on May 15, 1978: John and Avis Zazecki iGeorge C. Stankevich a/c Robert Kowalski iWilliam C. Rose Frederick J. Tedeschi a/c Zan Diakos Frederick J. Tedeschi /c Robert Heins Drossos Restaurant iBayview Resort, Inc. Matt-A-Mar Marina, Inc. dwelling. Location df property: Knapp Place, Greenport, New York, bounded on the north by Knapp Pla~e east by Clarenc~ south by M. Straussner; and west by Main Street. 8:35 P.M. (D.S.T.) upon application of Drossos Restaurant, Route 25, Greenport, New York, for a Special Exception to the Zoning Ordinance, Article III, Section 30 C 6(f) for per- m. ission to erect off premises s~gn. Location of property: West side of Albertson Lane, Greenport, New York, bounded on the north by County Road 27; east by Albertson Lane; south by Colony Road; and west by Shorecrsst Subdivision. $:45 P.M. (D.S.T.) upon application of Bayview Resort, Inc. Bayview Road, Southold, New York, for a variance in accordance with the Zoning Ordinance, Article III, Section 100-35 A to con- struct a five ~(5) foot fence in the front yard. Location of property: Bayvlew Road, Southold, New York, bounded on the north by Main Bayview Road; east by Victoria; south by Corey Creek; and west by Young and Koke. 8:55 P.M. (D.S.T.) upon application Matt-A-Mar Marina, Inc. c-o Gary F. Olsen, Esq. Main Road, Mattituck, New York, for a variance1 Ln accordance with the Zoniffg Ordinance, Article VII, Section 100-70 and Bulk and Parking Schedule for permission to sell retail boats. Location of property: Wickham Avenue, Mattituck, bounded on the north by Baker; east by Wickham Avenue; south by Mattituck Creek; and west by Mattituck Creek. , 9:05 P.M. (D.S.T.) upon application Matt-A-Mar Marina, Inc. c-o Gary F. Olsen, Esq., Main Road, Mattituck, New York, for a variance in accordance with the Zoning Ordinance, Article VII, Section 100-70 and Bulk and Parking Schedule for permission to construct a boat storage building. Location of property: Wickham Avenue, Mattituck, New York, bounded on the north by Baker; east by Wickham Avenue; south by Mattituck Creek; and west by Mattituck Creek. Dated: May 15, 1978 BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS 1TM25-2993 ~J COUNTY OF SUFFOLK, ] STA'I-~ OF NEW YORK, ? ss: · .T.R.9.Y..G.U.S.T..A.V.S.O.N. ................... being duly Sworn, soys that ...H.E... · is Printer crud Publisher of the SUFFOLK WEEKLY TIMES, a newspaper published ~r[ Greenport, in s~id county; and l~hat the notice, of which the ~nnexed is a printed copy, tins been pu.blished in the s~id Suffolk Weekly Times once in each week, for ....... .0.N.E. ................ weeks successively commencing on the ...Yl~li3liE¥.F.I~'rg ....... doy o, ........ ......... .................. Sworn to before me this . .~... ff../.. I day of.-~.&wt...,. 19.~.~. 1 ...... : .... ....... ...... NO?Atty PUBLIC, $1a~e of Reaiding in Suffolk County - Cllcs. No. 52-6~688~ ~.. LEGAL NOTICE Notice of Hearings Pursuant to Section 267 of ,the Town Law and the previsions of the Amended Building Zone Ordlmmee of the Town of Southuld, New York, publ~ will be held by the.~ Board of 1~ fas follo~ie~i~ls: ZaZecki, Suffset Souffiold, New York, for a variance in accordaffce with the Zoning Ordln~nce, ~A~ticle' III, Section 100~ Schedqle to place ,,, shed in th~ [ront yar~g~.~: ho tion of No. 178 on Map 90 ~' Cedar., Beach Park. " 7:i0 .P.M. (D.6.~.) application .0f Robert Kowalski, Pine Neck~l. Southold, New York, for StofA.in ~az~'~ variance in~ ' divide proper,~ with-~a: . sufficient ro~/d fronta.g,e. Location of preperty: Pine Neck Road, Southoid, New York, bounded on the4torth by Ulrich and Lademan; east by Smith; south by Pine Neck Road; and west by Smith and Tronce. 7:50 P.M. (D.S.T.) upon application of William C. Rose, 39565 Main Road, Orient, New York, for a variance in accordance with the Zoning Ordinance, Article III; Section 100-35 A to con- struct a five (5) foot fence in the front yard. Location of preperty: Main Road, Orient, New York, bounded on the north by Orient Realty; east by William Rose; south by Main Read; and west by Duvali. 8:05 P.M. (D.S.T.) upon application of Zan Diakos, c-o Frederick J. Tedeschi, Esq., 403 Main Street, Greenport, New York, for a variance in accordance with the Zoning Ordinance, Article III, Section 100-30 and Section 100-31 and Bulk and Parking Schedule for permission to divide preperty with insufficient width and area. Location of preperty: Lots No. 17 and 18 on Map No. 3664, Stars Manor, East Marion, New York. 8:20 P.M. (D.S.T.) upon application of Robert Heins, c- o Frederick J. Tedeschi, Esq., 403 Main Street, Greeuport, New York, for a special ex- ception to the Zoning Or- dinance, Article III, Section 100-30 B(1) for permission to convert existing one-family dwelling into a two-family dwelling. Location of property: Knapp Place, Greenport, New York, bounded on the north by Knapp Place, east by Clarence Begley; south by M. Stranssner; and west by Main Street. 8:35 P.M. (D.S.T.) upon application of Drosses Restaurant, Route 25, Greenport, New York, for a Special Exception to the Zoning Ordinance, Article III, Section 30 C 6(f) for per- mission to erect off premises sign. Location of preperty: . W~t _sidc.oAAlbe~?n. ?. ?y:. Greenport, New York, bounded on the north by County Road 27; east by Albertson Lane; south by Colony Road; and west by Shorecrest Subdivision. 8:45 P.M. (D.S.T.) upon application of Bayview Resort, Inc. Bayview Road, Southold, New York, for a variance in accordance with the Zoning Ordinance, Article III, Section 100-35 A to con- struct a five (5) foot fence in the frent yard. Location of property: Bayview Road, %uthold, New York, bounded · the north by Main Bayview _,oad; east by Victoria; south by Corey Creek; and west by ~ong and Koke. ~:55 P.M. (D.S.T.) upon' application Matt-A-Mar fMarina, Inc. C-o Gary F. Olsen, Esq. Main Road, Mattituck, New York, for a variance in accordance with the Zoning Ordinance, Article VII, Section 100-70 and Bulk and Parking Schedule for )ermission to sell retail boats. Location of property: Wickham Avenue, Mattitock, bounded on the north by Baker; east by Wickham Avenue; south by Mattituck Creek; and west by Mattituck Creek. Avenue, Mattituclq bounaoa on the north by Baker; east by Wickham Avenue; south by Mattituck Creek; and west by Mattituck Creek. 9:05 P.M. (D.S.T.) upon application Matt-A-Mar Marina, Inc. c-o Gary F. Olsen, Esq., Main Road, Mattitock, New York, for a variance in accordance with the Zoning Ordinance, Article VII, Section 100-70 and Bulk and Parking Schedule for permission to construct a boat 'eLK, I ~ORK, ? ss: J .................... being duly Sworn, is Printer ,,nd Publisher of the SUFFOLK newstmpe~ published trt Greenport, in said notice, of which the annexed is ~ printed :lished in ihe said Suffolk Weekly Times tor ......... ONE .............. weeks ~ncing on the ..... E~GHIEERTtt ........ ........ ~e this ..~../.I..(.. I storage building. Location of preperty: Wickham Avenue, ~.4,~ ..... 19.~.~)- ! Mattituck, New York, - ~ I,,._,~/~......~- ~. ~-) bounded on the north by Avenue; south by Mattituck Creek; and west by Mattitack Creek. Dated: May 15, 1978 NANCY 1~. BY ORDER OF NOTAtty PUBLIC. State et N~w THE SOUTHOLD l~esiding in Suifulk County TOWN BOARD C.~ No. 52-6~C4~5 OF APPEALS Commission E~:Ir~ 1TM18-2988 exception to the Zoning Ordi- nance, Article III, Section 100- 30B(1) for permission to con- vert existing one-family dwell- ing into a two-family dwelling. Location of property: Knapp Place, Greenport, New York, bounded on the north by Knapp Place; east by Clarence Begley; south by M. Strauss- ner; and west by Main Street. 8:35 p.m. (D.S.T.) upon application of Drossos Res- taurant, Route 25, Greenport, New York, for a Special Excep- tion to the Zoning Ordinance, Article lI1, Section 30 C 6(f) for permission to erect off premises sign. Location of property: West side of Albert- son Lane, Greenport, New York, bounded on the north by County Road 27; east by Albertson Lane; south by Colony Road; and west by Shorecrest Subdivision. 8:45 p.m. (D.S.T.) upon application of Bayview Resort, Inc., Bayview Road, Southold, New York, for a variance in accordance with the Zoning Ordinance, Article III, Section 100-3,5 A to construct a five (5~ foot fence in the front yard. Location of property: Bayview Road, Southold, New York bounded on the north by Main Bayview Road; east by Vic- toria; south by Corey Creek; and w~st by Young and Koke. · 8:55 p,.m_. (D.S.T.~ upon 9Ep!ica~tio_n Matt-A-Mar Ma- rina .Inc. _%/0 Esq., Main Road, Mattituc.k, New York, for a variance in accordance with the Zoning Ordinance, Article VII, Sectioe 100-70 and Bulk and Parkin~ Schedule for permission to sell retail boats. Location of pro- perty: Widkham Avenue, Mat- tuck, bounded on the north Baker; east by Wickham Avenue; south by Mattituck Creek; and west by Mattituck Creek. 9:05 p.m. (D.S.T.) upon application Matt-A-Mar Ma- rina, Inc. c/o Gary F. Olsen, Esq., Main Road, Mattitu?, New York, for a variance In accordance with the Zoning Ordinance, Article VII, Section 100-70 and Bulk and Parking Schedule for permission to construct a boat storage build- ing. Location of property: Wickham Avenue, Mattituck, New York, bounded on the north by Baker; east by Wick- ham Avenue; south by Matti- tuck Creek; and west by Mattituck Creek. Dated: May 18, 1978 BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS 1T-5/25 (492) O FORM~ NO. 3 0 TOWN OF $OUTHOLD BUILDING DEPARTMENT TOWN CLERK'S OFFICE SOUTHOLD, N. Y. NOTICE OF DISAPPROVAL File No ..... 241.~ .................................................. Date .................... ~l~y..J~., ................... , Matt-A-Mar, Marina, Ina. To ....~/a..Gar.y..F....Ol~en ,.. E~ ............... PLEASE TAKE NOTICE that your application dated ............ May...8 ............................ , 19..?~.. for permit to ~ ........................................ at the premises located at .................................... ....... ~. _~....~.~..~...~ ......... ~ .................... Street ~'~' ~ Map .................................... Block ........... :,.:%... .......................... Lot - ' is returned herewith and disapproved on the following grounds ....~ ....... ~ ........~-~.~. .................. ..../~......¢:......,L,.~ ....... ~..,.~ ....... ~ ......... ~ ......... .~:,~,~z ....... ~.....~.,:.~. BuilSing InSpector' George Fimher TOWN OF SOUTHOLD, NEW YORK APPEAL FROM DECISION OF BUILDING INSPECTOR APPEAL NO. ~:~,~/,~ ATE ......... TO THE ZONING BOARD OF ,~PPEALS, TOWN OF SOUTHOLD, N. Y. l, (We) ......3¢~.ttz~,..-.~r,..Iu.q~..; .................. :.of .....l/~.-~..c..k..h..~....~l....A..Y.e...n..u..e.x...~...a..t..t~.t.u...q.~.~...~..~°rk Name of Appellant Street and Number ........................ ~j[.a..t..t.~.t..q,c.,k,. .................................................. ,.~..e,.,w.....~..o.~..~. ....... HEREBY APPEAL TO Municipality State THE ZONING BOARD OF APPEALS FROM THE DECISION OF THE BUILDING INSPECTOR ON APPLICATION FOR PERMIT NO ..................................... DATED .~, ...../,~p WHEREBY THE BUILDING INSPECTOR DENIED TO (x) ( ) ( ) Name of Applicant for permit of ...... ~£¢)f, ham. J.v.e n~e ......................... ~at.t~t~.ck, ............... ~I.e..~...y..o..¥..k.. .......... Street and Number Municipality State PERMIT TO USE p~emtse8 t'ot ~et~il ~e of bo~t~. PERMIT FOR OCCUPANCY 1. LOCATION OF THE PROPERTY .Wickham..A.v.a,.,.~.t~.uQ~,~.~. .......... ~.z..~. ....................... Street Use District on Zoning Map Map 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.) Articl~ 7 Section 100-70 3. TYPE OF APPEAL Appeal is made herewith for (X) 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 :~j~z(has not) been made with respect to this decision of the Building Inspector or with respect to this property. Such ~ppeal was ( ) request for a special permit ( ) request for a variance and was made in Appeal No ................................. Dated ...................................................................... ( ) (X) ( ) REASON FOP, APPEAL A Variance to Section 280A Subsection 3 A Variance to the Zoning Ordinance is requested for the reason that ~%rm ZB~ (Continue on other side) REASON FOR APPEAL Continued 1. STRICT APPLICATION OF THE ORDINANCE would produce practical difficulties or unneces- sary HARDSHIP because the retail sale of boats has become a necessary aspect of the marina business today, The retail sale of boats which this variance is requesting would not be a separate business but would be as an accessory use to the applicant's present marina business, The business would be conducted at least 100 feet from Wickham Avenue and accordingly would not esthetically change the nature of the neighborhood. 2. The hardship created is UNIQUE and is not shared by all properties alike in the immediate vicinity of this property and in this use district because there are no other marinas nearby and because the applicant's property is presently zoned B-1 which permits of marina use, of which the proposed retail sale of boats would be a necessary aspe,ct. 3. The Variance would observe the spirit of the Ordinance and WOULD NOT CHANGE THE CHARACTER OF THE DISTRICT because the applicant would still be opernting a marina business and a variance for the retail sale of boats would not in any way change the character of the neighborhood. STATE OF NEW YORK ) ) COUNTY OF SUFFOLK) SS Sworn to this ..................... .5..t..h. ................... day of ............ ]VL~:y. .................................... 19 78 Notary Public ~'m / · //NoIaW public, State or ~ew york No. 52.0830410 Quc~li~ied in Suffolk County~,~ Term Expires ti, arch 30~ ~MITIt~ 17INKI~LSTEINI LUNDBERG~ ISLER AND YAKABOSKI August 17, 1989 Gerard P. Goehringer, Chairman Southold Town Board of Appeals Main Road P.O. Box 1179 Southold, New York 11971 Re: Matt-A-Mar, Inc. v. Goehriner, et al Dear Mr. Goehringer: Enclosed please find for your files the answer to the amended petition and the opposition papers to the motion to strike which have been submitted to the Court. I will keep you advised. ,~ // very' truly yours~ ISLER FAI:bn Enclosure SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK In the the Matter of the Application of MATT-A-MAR, INC., : Assigned to Justice: Petitioner, : Daniel F. Luciano For a Judgment pursuant to Article 78 of the CPLR -against- GERARD P. GOEHRINGER, CHARLES GRIGONIS, JR., SERGE DOYEN, JR., JOSEPH H. SAWICKI, and JAMES DINIZIO, JR., CONSTITUTING THE ZONING BOARD OF APPEALS OF THE TOWN OF SOUTHOLD, Respondents. AFFIRMATION IN OPPOSITION : : Index No. 89-11002 FRANK A. ISLER, pursuant to CPLR 2106, affirms as follows: 1. Finkelstein, I am a member of the firm of Smith, Lundberg, Isler and Yakaboski, special counsel for the Zoning Board of Appeals of the Town of Southold. I am the partner principally handling this litigation and am fully familiar with the facts and circumstances herein. I make this affirmation in opposition to the petitioner's motion to strike portions of the Return filed herein and in further opposition to the amended petition. 2. This Article 78 proceeding was brought to review the Board of Appeals' determination that petitioner's building permit to construct a 25,000 square foot boat storage building violated zoning and was thus invalid. The Court is respectfully referred to the Board's answer to amended petition and memorandum of law submitted herein for a full discussion of the proceedings and issues before the Board. In the interest of brevity, the background and legal points will therefore not be repeated herein. This affirmation will be limited to petitioner's motion to strike and to the claims made for the first time in the amended petition. MOTION TO STRIKE PORTIONS OF THE RETURN 3. Annexed hereto as Exhibit 1 is the certification of the two volume Return, certifying the contents as the complete record before the Board of Appeals. It is respect- fully requested that the certification be deemed affixed to the Return heretofore filed, (see CPLR 7804, 24 Carmody Wait 2d §145:346). 4. All of the documents petitioner seeks to strike were part of the record before the Board. Since the entire administrative record must be presented to the Court for its review, portions of that record cannot be extracted as "irrelevant" or "prejudicial." Zoning Board proceedings are not limited by rules of evidence (2 Anderson, New York Zoning Law & Practice, 3rd ed, §25.15). That some of the documents may be "prejudicial" to the petitioner would only show that the Board's determination was supported by the -2- record. As certified, the Return filed with the Court contains the entire record before the Board of Appeals. <~ 4. Petitioner claims that those documents pertaining to prior Board of Appeals and Planning Board proceedings regarding this property should be stricken on the ground that this history had not been raised at the public hearing and "had this information been presented at the public hearing, the petitioner would have addressed each every issue" (Lark affidavit, p. 4). This claim is startling in light of the fact that Mr. Ross, the attorney for the neighbors who had brought the appeal to the Board of Appeals, not only discussed in detail the history of the property, but quoted directly from records themselves. He read into the record the minutes of the 1978 Zoning Board hearing where the Board had ruled that a boat storage building similar to the one in issue would not permitted in the B Light Business Zone (80). Mr. Ross also read into the record portions of the 1980 letter from the Building Inspector to Matt-A-Mar, which explained industrial versus business uses (80). He further quoted the 1987 letter from inspector Lessard to petitioner's consultant which again advised that the boat storage use was not permitted (81). Mr. Ross concluded: "So what we see here is from 1978 upon until 1987, it was basically the Building Department's position -3- and the Board's position that a storage building was not allowed on those premises" (81). It is thus evident that the prior history was discussed in detail at the hearing. Petitioner's principal, Dr. Agarabi, its manager, Mr. Cocks, and its attorney, Mr. Lark, were all present during Mr. Ross' presentation and nevertheless stood mute as to these facts. Indeed, they were all present when the documents referred to, along with others, were formally submitted as exhibits at the hearing by Mr. Ross (77). These exhibits can be found in R-37 (pages 147-220) and obviously became part of the record below. Petitioner's present claim that these facts were not raised and would have been addressed had they been, rings hollow in the face of the record. 5. Petitioner criticizes the Table of Contents of the Return being as out of chronological order and as providing brief-like headings. These complaints are likewise frivolous at best. If petitioner were to have examined the table of contents more closely, it would have observed that it is indeed in reverse chronological order from R-1 through R-37 and that the files of the prior administrative proceedings are each in reverse chronological order. (While traditionally this office assembles returns in this fashion, petitioner cites no authority mandating how return documents are to be assembled). The "headings" petitioner claims are improper -4- (R-37) merely track the list of exhibits as submitted by Mr. Ross on behalf of the applicants, (pages 147-149). Surely petitioner knows merely an aid to record below. 6. Annexed hereto as Exhibit 2 is a legible copy of R-40a (page 232a). 7. Upon examination, the motion to strike is patently frivolous. The documents sought to be struck were actual exhibits presented at the hearing, without any objection from petitioner. Petitioner, takes the novel position that an administrative record should be restructured in an Article 78 proceeding to delete evidence that petitioner finds harmful. The Court's role, however, is to review the entire record before the administrative body. The documents petitioner would have this Court strike support the Board's adherence to the prior rulings affecting this property. The building did not conform to the B Light requirements in 1978 nor in 1988 when the permit issued. The permit was null and void from its inception and was properly declared invalid. that in any event the table of contents is the Court and not a part of the administrative STATUTE OF LIMITATIONS 8. Petitioner assets for the first time in its amended petition that the neighbors' appeal to the Board of Appeals was barred by a four month statute of limitations -5- (~23). Petitioner does not cite authority for this alleged statute of limitations and is apparently confusing the four month statute to commence a proceeding against a body or officer (CPLR §217) with an administrative appeal under the Town's code. No time limitation is contained in the Southold Code to seek administrative review of an illegal building permit. As the Board indicated in its determination, under the Town Code a permit issued in contravention of zoning is "null and void, without the necessity for any proceedings, revocations or nullification thereof" (p. 9 of Return, citing §100-281, formerly ~100-141). LESSARD'S AFFIDAVIT 9. Petitioner submits with the amended petition the affidavit of the building inspector who issued the building permit. This "testimony" was not presented to the Board (although Mr. Lessard attended the public hearing and chose to stand mute) and is therefore beyond the scope of the record being reviewed. As such, it should be disregarded. "Judicial review of administrative action is limited to the facts and record adduced before the agency when the determination was made (Celestrial Food Corp v. New York State Liquor Authority, 99 AD2d 25, 26-27; see also Jennings v. Coughlin, 99 AD2d 635, 636). This rule was recently applied by the Second Department: "Since our function here is to review the -6- discretion of the Zoning Board of Appeals based on the evidence before it, we have not considered subsequently proffered ~ material which is dehors the record" Barretto v. Zoning Board of Appeals, 123 AD2d 692, 693, emphasis added). Likewise, the allegations in paragraphs 19 and 20 of the amended petition and the contents of Mr. Cocks' affidavit accompanying the amended petition which deal with events occurring after the closing of the administrative record should be disregarded. 13. If the Court considers the Lessard affidavit, the following comments would be germane: a) While the zoning has since been changed in 1989 to allow a principal use of boat storage on a minimum area of 80,000 square feet, the building permit under review can only be measured by the zoning in effect when it issued. In any event, Mr. Lessard fails to advise the Court that under the present zoning, the building permit could still not have issued without site plan approval and without a set back variance from the existing bulkhead (see Point III of respondents' memorandum of law). b) Mr. Lessard now claims that the 1977 variance granted for boat storage (511), without expressly indicating whether storage would be indoor or outdoor, somehow supports his issuing the 1988 building permit (p. 8 of his affidavit). It is obvious that that variance was for outdoor storage -7- since within the next year, Matt-A-Mar applied for permission to build an indoor storage structure, which application Was withdrawn due to the Board's advising the applicant that indoor storage was an industrial use not permitted in the business zone. Indeed, Mr. Lessard himself had advised the owner in 1987 that the 1977 variance had been for "open storage" (Return p. 233). c) Although previously agreeing with the Board's position that a boat storage building was not permitted (see Lessard letter of 1/28/87; Return p. 233), Mr. Lessard has apparently changed his mind. He now claims that his 1987 letter and the 1978 Board's ruling had been based on a mixed use of the proposed building for repairs as well as storage. Nowhere was it ever mentioned that the building sought in 1978 would be used for anything other than storage (see minutes of hearing p. 434-478) nor does Mr. Lessard refer to any use other than storage in his January 1987 letter: "Reviewing the property, I find that at the time the question of constructing a storage building was discussed, Appeal #2419-6/1/78, the chairman ruled then and correctly so, that a storage building for storage is an industrial use and the property is zoned business" (R-41, p. 233, emphasis added). Mr. Lessard's present claim that the prior proposed building was for a "multiple use" simply is not supported by the record, including his own prior correspondence. -8- d) Mr. Lessard s dramatic characterization that the Board's determination Ks the result of a personality conflict with the Chairman of the Board of Appeals is likewise incorrect. While this may perhaps be his perception, the Board's decision was based on prior direct precedent and straightforward application of the zoning ordinance. As set forth in the annexed affidavit of Board member James Dinizio, Jr., the Board functions as a board with input from all members. No one member controls. The permit was issued in contravention of zoning and thus the Board had no alternative but to grant the appeal. 14. It is apparent that petitioner's motion to strike and its attempt to infuse issues of personalities are intended to deflect the Court's attention from the record, which shows a consistent Board of Appeals and which demonstrates that petitioner knew or should have known that this enormous structure was illegal. WHEREFORE, it is respectfully requested that 1) petitioner's motion to strike portions of the Return be denied; 2) the Court strike the affidavit of Victor Lessard and paragraphs 19 and 20 of the 3) the Court grant judgment dismissing the petition; and 4) amended petition; in favor of respondent the Court grant respondents such other and -9- further relief as the Court deems just and proper, together with their costs and disbursements, y Dated: Riverhead, New York August ~7, ~989 ' ! FRANK A. ISLER -10- APPEALS BOARD MEMBERS Southold Town Board of Appeals MAIN ROAD - STATE ROAD 25 P.O. BOX 1179 SOUTHOLD, t_.l., N.Y. 11971 TELEPHONE (516) 765-1809 FAX NO. (516) 765-1823 GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS, JR. SERGE DOYEN, JR. JOSEPH R. SAWICKI JAMES DINIZI0, JR. CERTIFICATION TO W~0M IT MAY CONCERN: Attached is a complete set of photocopies of the documentation made a part of the record under ZBA No. 3829 up until the date of the Board's decision rendered April 27, 1989 (together with a copy of the letter dated May 8, 1989 transmitting the Board's determination to the involved parties). I hereby certify that I have compared these copies with the original file and find them to be a true and accurate reproduction of same, ~-~tn~O~-~_~.~ ~o-Z~-c ~ ~ ~//L~nda F. Kow&~i, Secretar-- Southold Town Board of Appeals Memorandum from TOWN I~IALL, ~OUTHOLD, N. Y. 11971 765-1802 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK In the Matter of the Application of MATT-A-MAR, INC., : Assigned to Justice Petitioner, : Daniel F. Luciano For a Judgement pursuant to Article 78 of the CPLR GERARD P. GOEHRINGER, CHARLES GRIGONIS, JR., SERGE DOYEN, JR., JOSEPH H. SAWICKI, and JAMES DINIZIO, JR., CONSTITUTING THE ZONING BOARD OF APPEALS OF THE TOWN OF SOUTHOLD, Respondents. AFFIDAVIT : Index No. 89-11002 : says: JAMES DINIZIO, JR., being duly sworn deposes and 1. I am a member of the Town of Southold Board of Appeals and participated in the appeal brought by the neighbors of Matt-A-Mar Marina to review the building permit that issued for construction of a 25,000 square foot boat storage building. 2. I have read the affidavit of building inspector Lessard. His characterization of the Board's action as the result of a personal feud between himself and Gerard Goehringer, the chairman, presumably at the expense of Matt-A-Mar, is not correct. 3. Regardless of the nature of any application before us, whether it is an appeal from action taken by the building department or an application for a variance, we operate as a board and are not controlled by any individual member. 4. We acted unanimously here for the simple reason that the building permit was invalid. It allowed an industrial use in the business zone. No site plan approval had been granted. Indeed the Board's determination was consistent with the prior ruling of a predecessor board that the same storage building was an industrial use not permitted at the subject property; a decision Mr. Lessard previously regarded as correct (R-41, p. 233). The affected neighbors were within their rights to appeal the grant of the permit to our board. 5. We looked long and hard at this appeal. I believe this is reflected in the studied decision we rendered (Return pages 2-12). It is unfortunate that Mr. Lessard regards our decision as "Goehringer v. Lessard." Simply stated, the building permit never should have issued. Notary Public FRANK A, ISLER Notary Public, State o! New York SuflolkCounty - No, 4658745 Commission Expires April 30, 19 JAMES DINI~0, -2- SUPREME COURT OF THE STATE O~ NE~ YORK COUNTY OF SUFFOLK In the Matter of the Application of MATT-A-MAR, INC., Petitioner, For a Judgment pursuant to Article 78 of the CPLR GERARD P. GOEHRINGER, CHARLES GRIGONIS, JR., SERGE DOYEN, JR., JOSEPH H. SAWICKI and JAMES DINIZIO, JR., CONSTITUTING THE ZONING BOARD OF APPEALS OF THE TOWN OF SOUTHOLD, Respondents. OPPOSITION PAPERS SMITH, FINKELSTEIN, LUNDBERG, ISLER and YAKABOSKI Attorneys for Respondents. Office and Post Office Address 456 Grilling Avenue. P. O, Box 389 RIVERHEAD. NEW YORK 11901 516,727,4[00 Service of a copy ot the within Dated, is hereby adrnittecL Attorney(s) for Sire--Please take nonce that the within ts a (certified) true copy of a duly entered in the office of a clerk of the within named court on 19 that an order of which the within Is a true coov will be presented for settlement to the {-{ON. one of the iudges of the within named Court. Dated, day of 19 at SMITH, FINKELSTEIN, LUNDBERG, ISLER and YAKABOSKI Attorneys tot To Attorney(s) for Office and Post Office Address 456 Griffing Avenue, P. 0 Box 389 RJVERHEAD NEW YORK 11901 516.727,4100 STATE OF NEW YORK, COUNTY OF A~TORNEY'S AFPIRMA?IOM 'l~e undersized, an attorney ac~mitted to practice in the courts of New York State, shows: that deponent is ~ the attorney(s) of record for in the within action; that deponent has read the foregoing and knows the contents thereof; that the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters deponent believes it to be true. Deponent further says that the reason this verification is made by deponent and not by The grounds of deponent's belief as to ail matters not stated upondeponent's knowledge are as follows: The undersigned affrms that the foregoing statements are true, under the penalties of perjury. Dated: STATE OF NEW YORK, COUNTY OF ss.: INDIVIDUAL VERIFICATION , being duly sworn, deposes and says that deponent is the in the within action; that deponent has read the foregoing and knows the contents thereof; that the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters deponent believes it to be true. Sworn to before me, this day of 19 Notary Public STATE OF NEW YORK. COUNTY OF ss.: CORPORATE VERIFICATION , being duly sworn, deposes and says that deponent is the of the corporation named in the within action; that deponent has read the foregoing and knows the contents thereof; and that the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters deponent believes it to be true. This verification is made by deponent because is a corporation. Deponent is an offcer thereof, to-wit, its Thc grounds of deponent's belief as to all matters not stated upon deponent's knowledge are as follows: S~orn to before me, this day of Notary Public' STATE OF NEW YORK. COUNTY OF ss.: AFFIDAVIT OF SERVICE BY MAIL being duly sworn, deposes and says, that deponent is not a party to the action, is over lg )'cars of age and resides at That on the day of 19 deponent served the within upon attorney(s) for in this action, at the address designated by said attorney(s) for that purpose by depositing a true copy of same enclosed in a postpaid properly addressed wrapper, in -- a post offce -- offcial depository under the exclusive care and custody of the United States post office department within the State of New York. Sworn to before me, this day of 19 Notary Public Town of Southold Board of Appeals Suffolk County Department of Plannins H. Lee Dennison Fxecutive Office BuilWin~ Veterans ~{emorial I!ighway Rauppauge= ~ew Yorh 11787 (516) 979-2918 June 21, 1978 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 Oormgissiom 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 William C. Rose Matt-A-Mar Marina, Inc. Drossos Restaurant .. ?~unicipal File 7~umher 2414 2419 2422 Very truly yours, Lee E. ~oppelman Director of Plannin~ Gerald G. Chief Planner TOWN CLERK 765-3783 Building Dept. Planning Bd. 765-2660 Board of Appeals 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-B, Sections 239-1 and m, the ..... Boar.d .of. Appeals ............. of the town of.. So.uthold .................. (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 ................ Special permits Matt-A-Mar Marina, Inc. Wickham Avenue Mattituck, New York 11952 Appeal No. 2419 ...... X ....... Variances Location of affected land: ..... ',~i~,,~.~m .Avenue.,..~latJLituck.,...Hew...Yor]c .................................. within 500 feet of: (check one or more) ...... X ....... Town or village boundary line, or shore line ................ State or county road, parkway or expressway ................ State or county park or recreatlon area ...... X ....... 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 Comments: Applicant was granted permission to sell retail boats. He was given permission to have no more than 15 new boats on his premises at one time and the boats are not to measure more than 50 feet in length. Date: .....J.u,-'le...l~ ,...l 9.7.8 .......... (signed) Robert W. Gillispie, Jr. Chairman T/t/e Date received by Suffolk County Planning Commission .................................................................................... File No ................................. TOWN CLERK 765-3783 Building Dept. Planning Bd. 765*~J~x Board of Appeals 1802 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-B, Sections 239-1 and m, the . . . BO&L~d. O.~ .A]~..ala~ ............... of the town of... So~hol¢~.. (agency involved) ................ hereby refers the following proposed zoning action to the Suffolk County Planning Commission: (check one) ................ New and recodified zoning ordinance }~att-A-~r Marina ................ Amendment to the zoning ordinance ~/~ickham Avenue Mattituck, New York ................ Zoning changes ................ Special permits ..... ~ ........ Variances Location of affected land: ..WicY, J~am..A.v. enu~,..._~vJ~f~ti~_uok~...Ne~..~o=k ...................................... within 500 feet of: (check one or more) .... ~ ......... Town or village boundary line, or shore line ................ State or county road, parkway or expressway ................ State or county park or recreation area ..... .Z.. ........ 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 Commen~: Applicant would like to have permission to sell boats as an accessory to his marina business. (signed) Title Date received by Suffolk County Planning Commission .................................................................................... File No ................................. JUDITH T. TERRY TOWN CLERK REGISTRAR OF VITAL STATISTICS TELEPHONE (516) 765-1801 Southold, L. I., N. Y. 11971 May 8, To: Southold Town Zoning Board of Appeals From: Judith T. Terry, Town Clerk 1978 Transmitted herewith is Appeal No. 2419, application of Matt-A-Mar Inc. for a variance. Notification to the following adjoining property owners is also included: Walter Williams & Vina Baker. BOARD OF APPEALS, TOWN OF SOUTHOLD : In the Matter of the Petition of : MATT-A-MAR MAR., INC. : to the Board of Appeals of the Town of Southold : TO: Walter Williams Vina Baker 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) (]~~~(the following relief: ITse Vnri~nn~ for permission to sell retail' boats at applicant's marina ). 2. That the property which is the subject of the Petition is located adjacent to your property and is des- cribed as follows: West side of Wickham Ave., Mattituck. NY bounded on the north, south and west by 1V[attituck Creek; East by Baker and Williams and Wickhnrn Ave. 3. That the property which is the subject of such Petition is located in the following zoning district: B1 4. That by such Petition, the undersigned will request the following relief: A Variance to sell re- tail boats at applicants' marina 5. That the provisions of the Southold Town Zoning Code applicable to the relief sought by the under- signed are: A~:~nle VTT 6. That within five days from the date hereof, a written Petition requesting the relief specified above will be filed in the Southold Town Clerk's Office at Main Road, Southold, New York and you may then and there examine the same during regular office hours. 7. That before the relief sought may be granted, a public hearing must be h~the matter by the Board of Appeals; that a notice of such hearing must be published at least five d~fs prior,to the date of such hearing in the Suffolk Times and in the Long Island Traveler-Mattituck Watchn~n, newspapers published in the Town of Southold and designated for the publication of such notices; that yo. f or your fe, presentative have the right to appear and be heard at such hearing. / // D - ' Matt-A-Mar~ './~1~¢. Post Office Address P.O. Fiox 38; Mnin Road M:attit~ank: New Yn~-k 11952 NAME Walter Williams Vina Baker PROOF OF MAILING OF NOTICE ADDRESS Mattituck, New York Mattituck, New York 11952 11952 RECEIPT FOR CERTIFIED MAIL __Wa!~¢r _~Zi!liams delivered ........... PS Form NO INSURANCE COVERAGE PROVIDED-- POSTMARK OR DATE (See other side) Jan'lg?S3800 NOT FOR INTERNATIONAL MAIL RECEIPT FOR CERTIFIED MAIL SENT TO ~i~a_B~aker P.O.. STATE AND ZIP CODE /' Mattituck, New York 11952 ~TRICTED DELIVERY ~-E~TAL DEL~[RY (extra fee required) ................................. PS Form NO INSURANCE COVERAGE PROVIDED-- Jen. 19763800 POSTMARK OR DATE other side) NOT FOR INTERNATIONAL MAIL * ~o: ,,r~o-~,-.~z STATE OF NEW YORK ) COUNTY OF SUFFOLK ) SS.: (~harla T,ynn Ru~ell , residing at Mattituck. New York ~ being duly sworn, deposes and says that on the 5th day of May ,19 7 8 ., deponent mailed a true copy of the Notice set forth on the re- verse side hereof, directed to each of the above-named persons at the addresses set opposite their respective names; that the addresses set opposite the names of said persons are the addresses of said persons as shown on the current assessment roll of the Town of Southold; that said Notices were mailed at the United States Post Of- fice at Mattituek, NV ; that said Notices were mailed to each of said persons by (certified) ~mail. Sworn to be r~e this ~5_U3~ da~ © GARY F1aNNer OLSeN COUNSELLOR At LAW P. O. BOX 38 · MAIN ROAD · MATTITUCK, LONG ISLAND, NEW YORK 11952 . PHONE 516 298-4844 May 5, 1978 Re: MATT-A- MAR MAR., INC. File # 2331 Gentlemen: Enclosed herewith please find two Applications in re the above matter; one for a front yard Variance and the other for per- mission to sell retail boats along with the filing fee of $30.00. I am also enclosimg the original Notice served on adj_o~g land / GFO/clr Encs. Sou~hold ToWn Zoning Board of Appeals Main Road Southold, New York 11971 Present: Ho ILLIAM L tlN DERWO0 e e At a Special Term Part..~ of the Supreme Court of the State of New York, held in and for the County of Suffolk at Riverhead, N. Y. on the/~/~ay of Sept. 1978 THE AD HOC ASSOCIATION OF MATTITUCK INLET WATCH DOGS AND THE ~BROWER WOODS ASSOCIATION, Petitioners BOARD OF ZONING & APPEALS OF THE TOWN OF SOUTHOLD AND THE COMMISSIONERS THEREOF INDIVIDUALLY AS MEMBERS OF SAID BOARD OF ZONING & APPEALS, ORDER TO SHOW CAUSE PURSUANT TO ARTICLE 78. Respondents. Upon the annexed Petition of James Bitses, Esq., attorney )r the Petitioners herein, affirmed this 14th day of September, 1978, and Lhe exhibits annexed thereto, Let the respondents, Board of Zoning & Appeals of the Town )f Southold, and the members thereof individually and as members of the said Board of Zoning & Appeals, s~how cause at a Special Term, Part , )f this Court to be held on the~/~day of September, 1978, at 10 otclock in the forenoon of that day or as soon thereafter as Counsel can be heard ~t the Supreme Court House, Grilling Avenue, Riverhead, New York, 11971, vhy an order pursuant to CPLR Article 78 should not be granted reversing, rescinding, nullifying, and setting aside a certain variance granted by said respondent to Mat-A-Mat Marina, Inc. on or about June 15, 1978, and why such other and further and different relief should not be granted to the Petitioners as to the Court may seem just and proper, together with costs snd disbursements. Sufficient cause appearing therefor, let service of a copy of Ibis Order and a copy of the Petition with exhibits annexed hereto, on any ~mployee of the Board of Zoning & Appeals of the Town of Southold or in d ernative upon the Town Clerk of the Town of Southold on or before ay of September, 1978, be deemed sufficient. September/~1978. Justice of the Supreme Court SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK THE AD HOC ASSOCIATION OF MATTITUCK INLET WATCH DOGS AND THE BROWER WOODS ASSOCIATION, Petitioners BOARD OF ZONING & APPEALS OF THE TOWN OF SOUTHOLD AND THE COMMISSIONERS THEREOF INDIV'IDUALLY AS MEMBERS OF SAID BOARD OF ZONING & APPEALS, NOTICE OF PETITION PURSUANT TO ARTICLE 78 INDEX NO. Respondents. SIRS: PLEASE TAKE NOTICE, upon the annexed Petition of the iiattorney for the above Petitioners, James Bitses, Esq., affirmed the ll4th day of September, 1978j an application will be made to this Court at a Special Term, Part thereof, to be held at the Supreme Court House, Griffing Avenue, Riverhead, New York, 11901 on the day of September, 1978 at 10 otclock in the forenoon of that day or as soon thereafter as Counsel can be heard, for a judgment pursuant to CPLR Article 78, nullify- ~ing, rescinding, vacating and setting aside a variance granted by respondent ' to Mat-A-Mar Marina Corporation on or about the 15th day of June, 1978 ~ and for such other and further relief as to this Court may be deemed just and proper. PLEASE TAKE FURTHER NOTICE, that an answer and supporting affidavits, if any, shall be served at least five days before the aforesaid date of hearing. Petitioner designates Suffolk County as the place of trial. The ,basis of venue is that the respondent refused to perform lawful duties en- ,,joined upon him by the statute in the said County. Dated: To: Southold, New York September 14, 1978 Board of Zoning & Appeals of the Town of Southold Main Road, Southoldj N.Y. Gary Olsen, Esq. Main Road, Mattituck, N. Y. 11952 Yours etc., JAMES BITSES Attorney for Petitioners Main Road Southold, N. Y. 11971 516 765-5700 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK THE AD HOC ASSOCIATION OF MATTITUCK i IN ,ET WATC DOOS AND TBE BROWER WOODS Petitioners, BOARD OF ZONING & APPEALS OF THE TOWN OF SOUTHOLD AND THE COMMISSIONERS THEREOF INDIVIDUALLY AS MEMBERS OF SAID BOARD OF ZONING & APPEALS, Respondents. PETITION 1. The Petitioners herein, an ad hoc Committee of more than seventy five (75) homeowners, have united to oppose the granting of a variance by the Board of Zoning and Appeals of the Town of Southold to Mat-A-Mar Marina, Inc. of Mattituck, The Petitioner homeowners live in an area which is designated as "A" Zone residential, and which completely surrounds the Mat-A-Mar Marina which was designated a "B2: Zone by a special resolution of the Town Board of the Town of Southold dated July, 1966. 2. That specifically on or about May 5, 1978 Mat-A-Mar served notice upon contiguous land owners of its intention to seek a variance to sell retail boats. Application No. 2419 was made to the respondent Board of Zoning and Appeals on or about May 8, 1978 for apermit to use the premises for a retail sale of boats and requested a variance therefor. (B2 Zone permits the operation of a marina but does not permit the sale of boats). In order to do same Mat-A-Mar was obliged to seek a variance. 3. On May 12, 1978 the Building Inspector of the Town of Southold disapproved of the said application on the ground that "the retail sale of boats are a non-pcrmitted use in a B2 Zone". This is standard operating procedure. An appeal was taken by dcfcndant Mat-A-Mar to the respondent Board of Zoning and Appeals and on June 15, 1978 the said respondent granted "applicant permission to sell retail boats ..... " Copies of Mat-A-MarTs Notice, Notice of Appeal, Notice of Disapproval and Decision of the Zoning Board of Appeals of the Town of Southold are affixed hereto and made a part hereof as Exhibits A, B, C~ & D respectively. 4. That on June 20, 1978 the plaintiffs ad h~c association of Mattituck Inlet Watch Dogs and the Brower Woods Association, served a Notice of Appeal pursuant to Section 267 of the Town law, requesting that -1- the respondent Board of Zoning and Appeals reconsider the variance granted to defendant Mat-A-Mar and that the same be annulled, vacated and set aside. 5. That in support of the said Appeal the Petitioners herein served a Petition of Appeal upon the respondent ]Board in which were outlined the legal reasons why Petitioners believed that the variance should be rescinded and annulled. 6. The essential issue which was the heart of the said Petition and which is also the heart of this Article 78 proceeding, is that the respondent Board of Zoning and Appeals has totally ignored the require- ments of the law as regards to the granting of variances. It was Petitioners further contention that Mat-A-Mar failed to sustain the burden of proof by demonstrating compelling reasons, as required by law, why they should be granted a variance. An examination of Exhibit B, ~ Mat-A-Mars Appeal from the decision of the Building Inspector, makes it abundantly clear that (a) they failed to state "practical difficulties or unnecessary hardship as required by statute; (b) they failed to indicate how the alleged hardship was unique; (c) they failed to establish that the variance "would not change the character of the district". The oral record presented on June 8, 1978 (which is to be submitted as a supplemental affidavit to this Petition to be marked Exhibit E), shows that the record is totally devoid of the basic essentials required to establish the legal prerequisites for the granting of a variance. 7. We submit that the respondent Zoning Board does not make the law - it obeys the law. It is obliged to obey the law just as the Petitioners are obliged to obey the law. When a governmental body ignores the law and acts arbitrarily and capriciously without regard to the equities or the facts of the matter, it is subverting the foundation of good government. 8. The issue before this Court at this time and in this matter is whether the action of the defendant Zoning Board on the application for variance is founded on substantial evidence (CPLR 7803, sub-division 4), and whether Mat-A-Mar has satisfied its burden of proof. 9. Let us therefore examine the law in question with a view toward establishing whether the record indicates if substantial evidence was submitted by Mat-A-Mar to the respondent Zoning Board. An examination of Exhibit B, Mat-a-Mar~s Appeal from the decision of the Building Inspector, contains the following:. Question #1: Strict application of the ordinance would 3roduce practical difficulties or unneccessary hardship because: Answer #1 "the retail sale of boats has become a necessary aspect of the marina business today. The retail sale of boats which this variance is requesting would not be a separate business but would be an accessory use to applicantsI present marina business. The business would be conducted at least 100' from Wickham Avenue and accordingly would not aesthetically change the nature of the neighborhood. Question #2: The hardship created is UNIQUE and is not shared by all properties alike in the immediate vicinity of this property and in this use district because: Answer #2: there are no other marinas nearby and because the applicantls property is presently zoned B-1 which permits of marina use, of which the proposed retail sale of boats would be a necessary aspe ct. Question #3: The Variance would observe the spirit of the Ordinance and would not change the character of the District because: Answer #3:, the applicant would still be operating a marina business and a variance for the retail sale of boats would not in any way change the character of the neighborhood. 10. "Before the Zoning Board may exercise its discretion and grant a variance upon the ground of unnecessary hardship, the record must show (1) the land in question cannot yield a reasonable return if used only for the purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character of thc locality." (Bassett on Zoning Pg 120 etc; Otto vs Steinhilber 282 NY 71). The Court of Appeals in McGown vs Cohalan and Town of Islip (1977) 303 NYS-2 376 and Grimpel Associates vs Cohalan & Town of Islip (1977) 393 NYS-2 373 stated: "the property owner must show more than that the current zoning classification has caused a significant dimflnution in value, or that a substantially higher value could be obtained if an alternative use is permitted. Rather, the proper test is whether the owner can presently receive a reasonable return on his proper.fy." "To succeed..., the owner must establish that no reasonable return may be had from any permitted use" (Williams vs Town of Oyster Bay 343, NYS-2 118): Unless the respondent demonstrates beyond a reasonable doubt that the property will not yield a reasonable return under any of the u,ses permitted bY the zoning ordinance he fails to satisfy his burden of proof." Matter of National Merritt vs Weist 393 NYS 2 379). -3- 11. That Mat-A-Mar is required by the law and by the cases cited (Court of Appeals, February 1977) to bring forth evidence that Mat-A-Mar cannot presently receive a reasonable return on his property and he must establish that the said property will not yield a reasonable ?eturn under the existing uses, beyond a reasonable doubt. The cases are 21ear that if he fails to satisfy this stringent burden of proof, he fails to ~stablish the basic requirement for the granting of a variance. 12. In the case at bar Mat-A-Mar not only failed to bring forth ;he evidence required by law, but what is more pernicious, the respondent Zoning Board - in the total absence of this necessary evidence and in the ~otal failure of Mat-A-Mar to satisfy the burden of proof nevertheless ~rongfully granted a variance which was an act that was clearly prohibited ~y the statute and by the requirements of the citations. 13. In a re-examination of Exhibit B, I submit that respondents ~nswer to question #1 does not satisfy the requirements of the law. In ]uestion #2, that "there are no other marinas nearby" is not what is meant )y unique hardship. Again he repeats his inadequate answer to question #1 'the proposed retail sale of boats would be a necessary aspect...., of marina use." This is redundant and does not address the requirements of :he law. He fails to carry the burden of proof. 14. An example of what is meant by unique hardship will be !ound in the following case; Petitioner requested a variance to erect a six ~oot chain link fence. Denial of petitioners application to erect said fence ~nd thus obtain a ~ariance from the four foot fence limit, was arbitrary· :apricious and an abuse of discretion · particularly in view of the 15 foot ]rop down an embankment to railroad tracks at the rear of petitioners )remises. (Matter of Halstead Realty vs Holtzman 390 NYS 2 216). Here again the respondent Zoning Board ignored the re- ]uirements of the law; ignored the fact that Mat-A-Mar had failed again to satisfy his burden of proofj and blithely granted a variance that was un- supported by the essential evidence mandated by the statute and by the ~itations. 15. That Mat-A-Mar seeks a use variance. It seeks to rhange the allowable uses as presently permitted under a B2 Zone (the locking of pleasure boats at a marina) and wishes to add thereto a totally tifferent commercial aspect which is presently lacking. It wishes to be )ermitted to buy and sell boats at retail. The implications of such a change ire obvious. The purchase and sale of uzcd boats carries with it the uecessity to service these boats. The said necessity carries with it the implication of heavy lifting equipment for the removal of the boats from ~he water and returning same therein; it implies a machine shop for the ~ervice of the engines, a paint shop for the service of the hulls, a sail .oft for the service of the sails and masts, trucking for the land transportation -4- of the said new boats increasing traffic by suppliers and sub-contractors, increased noise attendant upon repair shops and machine works, increased pollution attendant upon boats in excess of those presently moored and other additional uses which normally and naturally flow from the granting of this use variance which we cannot at present predict, but whichin- evitably follow. 16. It has been held that "a use variance will have greater impact on the community than an area variance which does not involve ,'a use prohibited by ordinance, however, magnitude of desired area of variance, while within the confines of permitted use, is a significant factor since the greater the variance from area restrictions, the more ' severe the likely impact on the community". (National Merrit vs Weist i~ 17. In the instant matte~~t has operated what i!has amounted to a floating hotel~ (except that this floating hotel uses iMatti(uck Inlet for a cesspool). Patrons arrive by boat and leave by boat. Use of the local streets is incidental and minimal. Now, however,Mat--A-Mar i see~s a variance for an additional use which will change the character and : alter the use of the Marina property, making it a thorough going commercial I enterprise, shifting it into an industrial zone. I! 18. That Mat-A-Mar is surrounded on all sides by what iamount to fine mansions. In the twelve years since h~-'was allowed to !Iobtrude into this area, his patrons have pumped uncounted gallons of raw lhuman sewage into the south end of Mattituck Inlet (which respondent Board knows is the stagnant end, lacking an ebb and flow). It is now dangerous Lo take shell fish in the vicinity of the Marina. One swims near Mat-A-Mar From May to November at risk of hepatitis, polio and dysentery. One walks ~he beaches surrounding Mat-A-Mar Marina and is nauseated by the toilet )aper strewn thereon. Now the proposal by Mat-A-Mar is to pollute the streets n his vicinity as wellj with an increased load of commercial traffic. This hew use is bound to alter the essential character of the locality. 19. The plaintiff submits to this Court that the enumerated :hanges that have taken place in this area during the last twelve years were ~ell known to the respondent Zoning Board. Not only well known but ~otorious throughout the Town. As public servants they were obliged to ~ote the devastating effects of the previous zone change and as reasonable hen were obliged to infer therefrom the reasonable conclusions of the granting of this variance. The respondent Zoning Board seems to be impelled by a peculiar logic. It chooses to ignore well known facts and o grant this variance on the basis of adverse evidence. The granting of his use variance will so change the character of the neighborhood that nillions of dollars in property values will be lost and thousands of dollars -5- in tax revenue likewise lost. Its action in ignoring the evidentiary mandate of the statute and the citations is arbitrary and capricious in the extreme. 20. "A review of the substantiality of the evidence of an administrative tribunal is not a mere perfunctory passive function, and even though, in flue opinion of the court, a conclusion is against the weight of evidence, it may not disturb the determination if there is substantial evidence to support it, and where there is substantial evidence, the ad- minis}rative agency and not the court is the final arbitrator of any fact issue, though the court need not be convinced of the "rightness" of the determination so long as there can be a reasoned probability of the facts found by the administrative body." Phinn v. Kross, 1959, 8 A. D. 2nd 132. "Substantial evidence", to support determination means competent evidence with which petitioner was confronted at hearing and thus afforded an opportunity to deny or explain". Lindquist v. Swanson, 1948, 273 A.D. 802, quist v. Swanson, 1948, 273 A.D. 802, 76 N.Y.S. 2nd 431, reargument and appeal denied 273 A.D. 941, 78 N.Y.S. 2nd 557. 21. The substantial evidence required by the citations is totally absent from the record of the deliberations of this Zoning Board. The issue before the Court is not that of substituting its judgment for that of the Zoning Board. Rather, that the respondent Zoning Board be held accountable to the law and to this Court. Where the law requires substantial evidence the law does not speak idly. The respondent Zoning Board has the power to dispense largesse which benefit some and seriously detriment others. There are rules and regulations that have been enacted and there are decisions that have been handed down which set the require- ments for the granting or the denial of this largesse for the very simple reason that these gifts can be of great benefit or they can be disastrous tn their consequences. Where a governmental body ignores the law, as tn the instant case, it ignores the distilled common sense of thousands )f people and millions of events. This conduct is not only contrary to law Dui is also freighted with the direst consequences to generations yet to 2ome. The respondent Zoning Board believes that it can act on its own initiative without the necessity of the evidentiary requirements of the .aw. The combined plaintiffs herein plead for the intervention of this ~ourt to prevent this miscarriage of justice. That the relief sought herein has not been heretofore )reviously requested. -6- WHEREFOR, the plaintiffs demand that the decision of ithe respondent Board of Zoning and Appeals of the Town of Southold '~ be set aside, revoked, nullified and rescinded, and for such other iand further relief as to this Court may seem just and proper under Ithe circumstances. JAMES BITSES, Esq. Attorney for Petitioners Main Road Southold, N. Y. 11971 516 765-5700 CC: Board of Zoning & Appeals Town of Southold Main Road Southold, N. Y. 11971 G~ry Olsen, Esq. Attorney for Mat-A-Mar Marina Main Road Mattituck, N. y. 11952 BOARD OF APPEALS, TOWN OF SOUTHOLD In the Matter of the Petition of : MATT-A-MAR MAR., INC. : to the Board of Appeals of the Town of Southold : TO: Walter Williams Vtna Baker NOTICE YOU ARE flEREBY 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) (~i~;K~]}~l~~(the following relief: Uae Varlant-$~ ~_e_r ' '1' boats at applicant's marina. }. 2. That the property which is the subject of the Petition is located adjacent to your property and is des- cribed as follows: West side of Wickham .Ave, ,_lVlattttuck. NY bounded on the north, south and west by Mattttuck Creek; East by ~aker and WLI.I~L'ns ar~ Wtckham Ave. B1 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: .~ Variance to 8ell re- tail boats at applicants' marina 5. That the provisions of the Southold Town Zoning Code applicable to the relief sought by the under- signed are: ' ' - ___ 6. That within five days from the date hereof, a written Petition requesting the relief specified above will be filed in the Southold Town Clerk's Office at Main Road, Southold, New York and you may then and there examine the same during regular office hours. 7. That before the relief sought may be granted, a public hearing must be h~'~the matter by the Board of Appeals; that a notice of such hearing must be published at least five da/s prior,to the d~te of such hearing in the Suffolk Times and in the Long Island Traveler-Mattituck Watchn~n, newspapers pub?shed in the Town of Southold and designated for the publication of such notices; that y~or yo~presentatwe have the Petitioner G~ir3'yanner Olsen, Esq. right to appear and be heard at such hearing. Dated: 1V~n~ fi. 1.qTR Post Office Address P.C). Rox 31]. Main ~d Ma. tLiLLick; New Ynrk I 1 -q52 NAME Walter Williams Vina Baker PROOF OF MAILING OF NOTICE ~ADDRESS Mattttuck, New York Mattituck, New York 11952 11952 RECEIPT FOR CERTIFIED MAIL _Waltec W_illia ma Mattituck, New York 11959, PS Form NO IflSURAHC[ COVERAGE PROVIDEO-- JJ~n. 10?S380Q NOT FOP INTERNATIONAL MAIL RECEIPT FOR CERTIFIED MAIL Y_ina. Baker l~L~.t, tituck, _New York 11952 /'~/~ '""' PS Form ~n. 19763800 NO INSURANC[ COVERAG[ ~OVID[D-- (See NOT FOR INTERNATION~ MAIL ~: STATE OF NEW YORK ) COUNTY OF SUFFOLK ) ('herie Lynn Russell . residing at Mattituclc. New York , being duly sworn, deposes and says that on the ~ day of M ay ,19 ? ~ , deponent mailed a true copy of the Notice set forth on the re- verse side hereof, directed to each of the above-named persons at the addresses set opposite their respective names; that the addresses set opposite the names of said persons are the addresses of said persons as shown on the current assessment roll of the Town of Southold; that said Notices were mailed at the United States Post Of- fice at M~ttih]ck. NY ;that said Notice~ were mailed to each of said persons by (certified) (t~ mail. ....... - ii ITIF-I [I I New ork upreme Appellate Division--Second Department. JOHN D. MORRISON and DOROTHY V. MORRISON, Plaintiffs-Respondents-Appellants, against MATT-A-MAR, INC., VINA BAKER and GEORGE M. VA~qBUREN, Defendants-Appellants.Respondents, LESTER M. ALBERTSON, RALPH W. TUTHILL, HENRY A. CLARK, HOWARD VALENTINE, LOUIS M. DEMAREST, E. PERRY EDWARDS, constituting the TOWN BOARD OF THE TOWN or SOUTHOLD, HOWARD TERRY, BUILDXN~ .INSPECTOR OF THE TOWN OF SOUTHOLD, RECORD ON APPEAL. WILLIAM WICKHAM, Attorney fo~' Defendants-Appellants.Respo~denf~s, Matt.A-Mo~r~ I~., Vi~ Baker a~ M. Vanden, Main Steer, MattOck, N, Y. 11~2 516 MA Att~eys ~or Plainti~s-Resp~ts-A~el~, 175 G~g Argue, Riverh~d, N. Y. 11~ ROB~ W. TASK~ Att~ey for Def~dan~-Re~, T~ a~ BuiM~g l~pec~r of the S~tho~, 425 Ma~ Steer, Suffolk Co~, Clerk's ~d~ No. 1~. (2768) 44 Affidavit of Robert W. Tasker, Read in Opposition to Plaintiffs' .Motion. SUPREME COUt~T, SIffFFOLK COUNTY. [SAm.: Tm~.] ROBERT W. T.XSKER, being duly sworn deposes and says: That deponent is the Town Attorney of the Town of Sou/hold and is familiar with all of the proceedings had herein. That this afiidavit is made in opposition to a motion made by thc plaintiffs for summary judgment. That this is an action for a declaratory judgment seek- ing to have declared invalid the action of the To~ Board of the Town of Southold in adopting a resolu- tion on June 25, 1965 amending the Building Zone Ordi- nance and Map to change ~he zone classification of prop- erty of the defendant, Matt~A-Mar, Inc. at Mattituck from "A" Residential and Agricultural District to "B-2" Busi- ness District. That thc grounds upon which the plaintiffs base their cause of action are essentially that said amendment eon- stituted spot zoning and was not pursuant to a compre- hensive plan. That as Town Attorney, deponent is fam~iar with all of the acts and proceedings of the To~ of Southold concerning zoning matters since January, 1958. Thai prior to April, 1965, the Building Zone Ordinance of the Town of Southold provided for four different zone classifications in the Town of Southold, to wit: "A" Residential and Agricultural District; "M" Mul- tiple Residence District; "B" Business District; and "C" Industrial District. That in the early months of t965 the Town Board and the Planning Board of the 45 Affi&tvit o! Robert W. Tasker, Read in Opposition to Plaintiffs' Motion town after several meetings formulated a comprehensive plan for thc ereahon e ' o -three 'addition~al; zone districts, to wit: "M-i" Multiple Residence District; ii ]'B-I" Business District, and "B-2" Business District. i/ Phat pursuant to said plan and after a public hearing, il the Building Zone Ordinance was duly amended by thet Town Board on April 6, 1965. Such amendment pro- vided for the three additional use districts above men- tioned and generally revised the en or anee me n - lng the permitted uses in all of the seven use district classifications. That pursuant to and in furtherance of said comprehensive plan, and subsequent to the establish- ~nent of th~tional use districts and the general revision of the zoning ordinance, all accomplished by the Apzil ~amendmcnt to thc zoning ordinance, the ~ t m~apPlZoval o[' the'--Plan~Tng Board, Town I) mr 1, with has adoldod several resolutions placing various areas of ~l~e town in ihe various new use districts. In fact at the same Town Board meeting on J~une 25, !965 ..(not on · lulled in the Cmnplaint) when the prop- ¢~rt~'jeet of this aeqlon was placed in the new "IL~:' Bu.sines~ District zone, three other parcels (one in M~ttituck; one in Cutchogue, and one in Greenport) were plac(~d in the "B-2" Business District and one parcel at Arshamomoqne was placed in the "B" Business Dis- trict as revised by the April, 1965 zoning ordinance amend- mont. That the real property which is the subject of this action is not located in an area devoted exclusively to residential uses. It is undisputed that the property in question has been used for non-residential uses for many years and constitutes a non-conforming use. The premises in question is located approximately 700 feet north of Middle Road (County Route 27), a newly constructed 4~ A~davit of Robert W. Tasker, Read i~ Opposition to Plai?iff s' ]lotion divided dual highway which is one of the two main east- west highways in the town. The property on the north side of Connty Route 27 from Wiekham Avenue west approximately 1000 feet is and has been zoned "B" Busi- ness for many years. A gasoline station, a self service laundromat and a marina owned and operated by the Mattituek Park District are located in said business zone, and all are in dose proximity to the premises in question. That the Complaint herein alleges that the premises in question and the surrounding neighborhood are residential in character; that plaintiffs' properties are in the immedi- ate vidnity; that plaintiffs will suffer irreparable harm and injury all of which is denied by the answers. There are, therefore, triable issues of fact requiring a triM. Wgzm~ro~m, deponent respectfully asks that plaintiffs' motion for summary judgment be dismissed. (Sworn to by Robert W. Tasker, October 5, 1967.) TOWN OF $OUTHOLD OFFICE OF BUILDING INSPECTOR P.O. BOX 728 TOWN HALL SOUTHOLD, N.Y. 11971 TEL. 765-1802 January 28,1987 Henry Raynor Love Lane Mattltuck, N.Y. 11952 Re: Matt-A-Mar Inc. Reviewing the property, I find that at the time the question of constructing a storage building was discussed, Appeal #2419-6/I/78, the chairman ruled then, and correctly so, that a storage building for storage is an industrial use and the property is zoned business. I would also point out that Appeal #2242-I/17/77 dealt with open storage of boats, at that hear- ing, the decision for outside storage was ap- proved with the condition that "no storage or marina uses within 100 feet of Wickham Ave. to the East." Screening that area was promised but never materialized. Before I can certify the latest proposal, these conditions will have to be addressed. VGL:hdv Very truly yours, Victor G. Lessard Exec. Admin. p.s. Part of hearing 6/I/78 enclosed. Memorandum from.... Southold Town Board of Appeals TOWN H^LL, $OUTHOLD, N.Y. 11971 765-1809 To: Victor Lessard, From: ZBA Office Date: 1/23/87 Admini strator-Bldg. Dept. Attached for your file are copies of the following decisions concerning the property of Matt-A-Mar {1'14-3-1) as per your Memorandum: Appeal Appeal No. 241g rendered 6/1/78 and re-affirmed 8/17/78 (Decision and Transcript of hearings attached}. Sale of used or new boats up to 50 feet in length, and not more than 15 new boats at one time. The used boats will be in the water. Number requested by applicant: 50 max. No. 2242 rendered 1/27/77 To store boats on the premises applied, subject to "no storage marina uses within 100 feet of Wickham Avenue to the east." as or TOWN OF SOUTHOLD OFFICE OF BUILDING INSPECTOR P.O. BOX 728 TOWN HALL SOUTHOLD, N.Y. 11971 TEL. 765-1802 January 23, 1987 TO: FROM: SUBJECT: Gerard Geohringer Z.B.Z Chairman Victor Lessard Exec. Admin. Matt-A-Mar Marina, Inc. Matt-A-Mar Marina desires to con- struct a large boat storage fac- ility on their property. Matt-A- Mar Inc. is presently situated in a B-Light Business Zone while what they propose is listed in Zone C- Light Industrial District. I am aware of multiple decisions being made on this property, by the Zon- ing Board, over the years, and would ask if any decisions address- ed this aspect of the business. I would appreciate a quick response. VGL :hdv SOUTHOLD TOWN BOARD OF APPEALS' -19- August 17, 1978 must have the exact location of the cesspools. VIRGINIA MOORE: Mr. Chairman, has there been a variance granted here tonight? THE CHAIRMAN: No, but the 1.5 acre parcel of property was divided in November, 1977, and a 100 foot parcel along Hyatt Road and is 230 feet deep. The division created one half acre parcel and one, one acre parcel. This right-of-way on the westerly side of the property does not look as though it is used. MRS. ROUSSIN: That is right. It was going to be used at one time, but it never was. VIRGINIA MOORE: I would like to speak on this application and hope the Board will indulge me. (Mrs. Moore read a two page letter addressed to the Board in opposition to this division. She stated that if the lot was further subdivided it would not conform to the rest of the neighborhood as the lot sizes vary from 150 feet fronting on Hyatt Road to 4.6 acres. Only eight lots south and west of Lighthouse Road are 1/2 acre or less. Some of the neighbors voluntarily merged three lots into 2 lots to conform to the present zoning of the Town of Southold. Mrs. Moore pointed out that the 208 Waste Water Study recommends at least one acre zoning for the entire North Fork. The neighborhood rests on semipermeable layers of Gardiner's clay, which prevents the immediate seepage of rainwater into the ground. The neighbors would suffere from downzoning and dimuntion of privacy.) MRS. ROUSSIN: In this area on Hyatt Road some of the people do not have 150 feet on the road. I have a list here showing what the frontages are for the neighbors. I would like to have a variance for the 100 by 230 feet, but the 114 feet on which the variance was granted I would let remain the way it was. You granted the variance last year and I wasn't sure where the cesspools were located, so I asked could that lot line be changed from 114 feet to 100 feet. That would be from Soundview Avenue in 100 feet to .... THE CHAIRMAN: Let us go into this further, investigate it again, and then make a decision. MRS. ROUSSIN: What would you like from me? THE CHAIRMAN: What do you have there that we don't have? MRS. ROUSSIN: the closing when we different parcels. I also have a letter from an attorney who handled bought the property originally. It was in three I have 3 recorded deeds. THE CHAIRMAN: Were they bought at three different times? MRS. ROUSSIN: No, they were all bought at the same time. THE CHAIR~t~N: What I would like to do is postpone this until the next meeting at September 7, 1978, at 7:50 so we can have more $OUTHOLD TOWN BOARD OF APPEALS -20- August 17, 1978 time to look .this over. MR. MICHAEL REISE: I own parcels No. 23 and 9 on the County Tax ~ Map. It was three lots originally on the Hyatt property and then made two lots out of them. I would just like to go on the record at this meeting so I can be heard at the next meeting. Also so I can be notified. THE CHAIRMAN: The next meeting will be September 7, 1978, at 7:50 Mrs. Roussin, maybe you could find out specifically where your cesspools are located. MRS. ROUSSIN: I spoke to the Building Inspector today, and he told he that the house is about 35 years old. There is no map showing where the pools are. This is not the part that is in dispute. The part that is in dispute is the adjoining piece of property that I want the variance on now. The 100 by 200'parcel. MR. DOUGLASS: Could you leave us the attorney's name and the names that the deeds were originally in. MRS. ROUSSIN: The deeds were originally in my husband's name and mine. On motion by Mr. Gillispie, seconded by Mr. Doyen, it was RESOLVED that the public hearing on Appeal No. 2451 be recessed until Thursday, September 7, 1978, at 7:50 P.M. (D.S.T.). Vote of the Board: Ayes: Messrs: Gillispie, Grigonis, Doyen, Tuthill and Douglass. WE are next going to consider a request from James Bitses, Esq. acting for Mattituck Watch Dogs, the Brower Woods Association and Others, unidentified, in requesting that the Board reverse, modify, or change, or rescind a decision which the Board made in June, 1978, in connection with permitting Matt-A-Marina to store for possible sale up to 15 boats as a part of their Marina operation. I might say that this request is the longest one of this character that we have ever received, and a few days ago we received a much simplier stated request from somebody who is unhappy with a decision in Nassau Point and said that we had acted on misinformation, and could he have a new hearing. That is all he said. Now the Drocedure for having a new hearing or modifying a decision by law is that the Board agrees unanimously to reconsider, modify, annul or otherwise change a previous decision and the Board has to do this in public session. We are considering the matter now. It is not required to have a legal notice notice published that we are considering this. If it were required almost ~nyon~ who writes us a letter could require that when we receive the letter, we issue a legal notice and hold a hearing on a letter. In effect this is a letter which summarizes, apparently, the frustrations of many years ~ SOUTHOLD TO~fN BOARD'OF APPEALS -21- August 17, 1978 of the residents on Mattituck Creek. It happens to be centered here tonight, and we are supposedly the people who instituted this not so. The Mattituck Creek was dredged in the early 1950's sometime before zoning. The County and many others thought about it and realized Mattituck Creek was one of the few harbors between Port Jefferson and Orient Point and it was natural to want to develgp it. Now as marinas developed in the Town, "marina" was more or less a new word. At least around here 22 years ago. As more and more boats became available to people and there was more demand for marinas, they grew. People who originally thought the Creek was a nice place to live and watch a few sailboats go by once in a while found out that there were many power vehicles going by and it was becoming less pleasant than it was. I call your attention to the original purposes of the Zoning Ordinance. I remember sitting on the Zoning Commission and originally addressing a group of people such as you who were asking why zoning was necessary at all. We were trying to persuade them that we all have to live here together. There are some people who are local residents and have been here for a long time. There are people who operate farms and agricul- tural industies, fishing industries, the summer residents provide income to many winter residents. The Creeks and Harbors, such as Greenport, provide part of our overall wealth in the community in the Town of Southold, and I am almost positive that all the people in this room are against the Matt-A-Mar Marina. The reason I say that never in our history has anyone ever come to approve or to support. They come only to decry, or to tell their neighbors what to do. Or to interfere or to object. Some of the objections are well taken. In saying this to you I would like to point out ~o you that the different strata, or groups in the Town of Southold have to live together. We are the focal point at the moment on this Matt-A-Mar Marina. All of the frustration from Mattituck Creek going to the length of an Appellate Petition which Mr. Bitses has bound in blue like a legal document, to which he has attached a number of affidavits going to this at the moment. "Petition of the Mattituck Inlet War ch Dogs Association and others, respectfully alleges as follows: All of the petitioners herein are homeowners and property owners whose holdings lie in the vicinity of Mattituck Inlet and the Matt-A- Mar Marina. For convenience, all these individuals will hereinafter be mentioned as Appellants. Matt-A-Mar Marina will hereafter be mentioned as the Respondents. That is a fact. No. 2 is a fact. On May 5, 1978, Respondent served notice upon contiguous land owners of his intention to seek a variance to sell retail boats. See Exhibit A. That is properly identified. JAMES BITSES, ESQ.: Mr. Gillispie, could we put aside these details and get to the heart of the matter. The issues before this group. THE CHAIP~4AN: I expect to get there, Mr. Bitses. MR. BITSES: Eventually. THE CHAI~,~N: Due to the fact of your harrassment of the Board, I expect to take my time... . MR. BITSES: The hour is late, sir. Mr. Gillispie, ~ am the party SOUTHOLD TOWN BOARD OF APPEALS -22- August 17, 1978 that is being harassed at this time. THE CHAIRMAN: You are not the party being harassed. MR. BITSES: I would like the record to show that you are playing cat and mouse with this group. I am asking you to get to the issues and quit playing cat and mouse.with us. THE CHAIRMAN: I will ask you to sit down, Mr. Bitses. MR. BITSES: I am seated. THE cHAIRMAN: On May 12, 1978, the Building Inspector. This is from the letter you wrote to the Board, Mr. Bitses ..... MR. BITSES: Yes, sir, let's get to the issues, sir. THE CHAIRMAN: I'm not going to skip any part of the letter. The Building Inspector disapproved of said application on the ground that "retail sale of boats are a non-permitted use in this zone." An appeal was taken to the Appeals Board and on June 15, 1978,the Board of Zoning and Appeals granted" applicant permission to sell retail boats .... " It is from this grant that the applicant herein appeal to the Board of Zoning and Appeal of the Town of Southold for an order reversing, rescinding, nullifying and setting aside the granted variance dated June 15, 1978 and for such other and further relief as to the Board may seem appropriate under the circumstances. 7. Before the issues can become intelligible, certain background facts must be into- duced. That in 1957 there was enacted by the Town Board of the Town ~ of Southold a Zoning Ordinance, together with an official zoning map delineating the zone distribution of the said Town. Said map is pre- sently on file in the office of the Clerk of the Town of Southold, and will hereinafter be referred to as the "1957 Zoning map." An examina- tion of the said 1957 map shows that the land of respondent, Matt-A- Mar comprises nine acres was characterized as "A" Zoned residential agricultural. 10. The 1957 Zoning map is significant because it estab- lishes certain vested interests in non-conforming uses. The nine acres presently belonging to Matt-A-Mar were nominated and delineated a non- conforming use because of the prior existence of the "Harbor Inn Hotel" thereon belonging to Mrs. Vina Baker and Mr. George Van Buren. Non- conforming uses in existence when a zoning ordinance is enacted are permitted to continue if, and only if, enforcement of the ordinance, would, be rendered valueless. Here Mr. Bitses has gone on a departure from what actually happened. I'll skip part of this letter because its really irrelevant. MR. BITSES: We have suffered through a very careful reading to this point and now you intend to skip through what you consider irrelevant. In all fairness Mr. Gillispie, why don't you put the entire letter into the record. THE CHAIRMAN: Paragraph 11. Non-conforming uses in existence when a zoning ordinance is enacted, are permitted to continue, if, and SOUTHOLD TOWN BOARD OF APPEALS -23- August 17, 1978 and only if, enforcement of the ordinance would, by rendering value- less substantial improvements or business' built up over the years c~use serious financial harm to the property owner. There are case references. Hence Baker and Van Buren continued the undisturbed use of the Harbor Inn Hotel even though it was totally surrounded by several hundred acres of high grade residential area and millions of dollars in upper income residential houses whose median value is approximately $50,000.00 each. 12. Sometime between 1964 and 1966 Mrs. Baker and Mr. Van Buren sold their Hotel to the present owner of the Matt-A-Mar Marina, respondent herein. The former Mrs. Vina Baker is now Mrs. Vina Van Buren, widow of co-owner, George Van Buren. Appended hereto and made a part hereof please find a true copy of her affidavit (Exhibit F) dated July 25, 1978, in which she certifies that "in 1957 at the time zoning was enacted in Southold Town, we operated the pre- mises in question herein strictly as a hotel." She continues, "The wasterfront was occasionally used by guests for swimming only. We did not moor boats nor accommodate boats in any way; we did not operate a mooring or a boat business of any nature, whatsoever. Later in her affidavit she states "the premises sold to Matt-A-Mar was never a marina non-con- forming use or any related boat business of any nature whatsoever." Later in her affidavit she states "the premises sold to Matt-A-Mar was never a marina non-conforming use or any related boat business non- conforming use." Now one of the peculiar things about her affidavit is that she failed to state that she later applied to the Town Board for a change of zone in order to sell the property as a marina. It was odd that she would not have remembered that. 12. On June 6, 1966... MR. BITSES: Excuse me, do you have any documentation of that statement? There should be documentation of course. She must ~ave signed something. She must have applied. You said she applied. THE CHAIRF~AN: Yes, she did. MR. BITSES: Okay, where is the documentation saying that she applied: THE CHAIRMAN: We are getting there. On June 6, 1966, she applied.. in late 1964 for a change of zone from A to B in order to sell the property to Matt-A-Mar. The Town Board denied it because at the time they were thinking of revising the Ordinance. On April 6, 1965, which was some months after she had applied, amendments changing the Ordinance were included and they included a new "M-l", "B-l" and a "B-2" district. No areas were rezoned. It was as a result of public hearings, changes or evolutions of the comprehensive plan of the Town of Southold was required because we needed more sophisticated zoning with an "M-l" and two "b" districts. Now, apparently the Town ..... MR. BI?SES: It is the Amendment 68 you are talking about? THE CHAIR~N: No, this is in 1965. On June 6, 1966 ....... MR. BITSES: May I ask what amendment this is? They are all numbered. SOUTHOLD TOWN BOARD OF APPEALS -24- August 17, 1978 THE CHAIRMAN: No. 68 MR. BITSES: No. 68. That is the one where the map is missing. Is that correct-sir? THE CHAIRMAN: There was no map required. MR. BITSES: Ail the other amendments have maps. This one does not. THE CHAIRMAN: Mr. Bitses, a big point is made of the map being missing. On this amendment they merely amended the book. They did not change any actual property. That was done later in June. MR. BITSES: Are you saying therefore that the Matt-A-Mar property was never changed to a "B" zone? THE CHAIRMAN: No, it was changed in June 25th. MR. BITSES: Therefore there is documentation in the minutes of the Town Board deliberation and minutes. I suppose you have the Town records here? THE CHAIRMAN: On June 25, 1965, the Town changed the zone of several different places including one in Greenport, one in Southold, one somewhere else and Matt-A-Mar was included in that change of zone. That apparently has confused, to some extent, this letter. You also state that on June 6, 1966, respondent applied to the Board of Trustees for a permit to bulkhead, dredge and install a floating dock for an f approximate length of 1600 feet and to excavate 20,000 yards o~ creek~_ bottom, 20 feet wide and 200 feet long to a depth of five feet at low tide. See Exhibit "G". In answer to the question, "area zoning" respondents answer was: "Change to Business "B". Now, I am not exactly sure what that referred to. The Zone was changed on June 25, 1965, and this is a year later. In other words they are operating now in a re- zoned area from A to B-2. The Matt-A-Mar people acquired title on August 13, 1965, to a B-2 zoned piece of property which a marina is a conforming use so provided for in the ordinance. An examination of Amendment 68 dated April 6, 1965, which is the only date a change, if any, could have taken place. I think we have covered that. The zoning map is missing, we have covered that. MR. BITSES: I beg to differ. I don't think you have covered that. All the other amendments in the entire series thereafter have zoning maps. This is the only one that does not. THE CHAIRMAN: If you are amending an Ordinance, changing the wording of an Ordinance, introducing three new, more sophisticated zones. We had a simple "A" "M-l", "B", and "C" set up. Naturally we required zones. April 6, 1965, changed the Ordinance to include "M-l", "B-l" and "B-2". Three new districts. It did not actually rezone any land. It just made it possible to do that. If they had rezoned any land at the same time, they would have furnished a map with it. As it was they just changed the book. $OUTHOLD TOWN BOARD OF APPEALS -25- August 17, 1978 MR. BITSES: You are telling me they rezoned it, but they didn't rezone it. Is that correct, sir. Therefore they did not need a map because they did not rezone it. I do not follow your reasoning, sir. I think you are giving us a little double talk here. THE CHAIR~N: Ail right, the Town Attorney is here and I think he can explain it. MR. BITSE$: This is not the issue before the Board. We are going very far afield. ROBERT W. TASKER,ESQ: I think you asked a question, and I happen to be the Town Attorney and was when all of these things took place. I think that before we get into the arguments and the merits we ought to get the facts straight. In 1966, April, the change... MR. BITSES: Excuse me, do you intend to reargue the merits of this tonight? Yes or no. I trust no. THE CHAIRMAN: I do not think I have to answer anything that you say, yes or no. Neither does anyone else here. MR. TASKER: Do you want an answer of what took place? There first was an application by Vina Baker and Van Buren to change the zone of the Matt-A-Mar property. They owned it. Prior to time they applied the first time they had entered into a contract to sell it to the people who own the Matt-A-Mar Marina today. They made the applicatio~ for change to a "B" zone, as Mr. Gillispie said. The Town Board denied it, because of the fact that the uses of the different zones were too broad. If they rezoned it there to allow a marina, they would also have to permit ship yards and founderies. They were aware at that time there was a need for more different type use districts. So they denied Van Buren application. In April 6, 1965, the thing that you talk about where there was no map, it was merely a revision of the zoning ordinance. No maps were involved. Nothing was rezoned. They rewrote the zoning ordinance. That was the change in 1965. MR. BITSES: Did the change in the zoning ordinance mention the Matt-A-Mar marina? MR. TASKER: Absolutely not. Nor any other property in the Town of Southold. MR. BITSES: Then, where did the change take place? MR. TASKER: That is the second step. After the zoning ordinance was amended to permit new use district, thereafter Van Buren and Baker applied. Not for the old "B", but for the new "B-2" which merely permitted marinas for the accommodation of non-commercial boats. That application was granted. That was June 25, 1965. To that there is a map. You can go in the Town Clerk's Office and find it. Let me continue, please. As a result of the rezoning, there was a lawsuit brought by a man by the name of Mr. Morrison, who lived across the creek. He sued SOUTHOLD TOWN BOARD OF APPEALS -26- August 17, 1978 the Town, and he sued Mrs. Baker and Mr. Van Buren and Matt-A-Mar claiming spot zoning, illegal rezoning. MR. BITSES: Which court did he bring this to, please? MR. TASKER: He took Supreme Court, naturally. MR. BITSES: An Article 78 proceeding? MR. TASKER: No, it was a Declaratory Judgment. To declare the change illegal. There were motions by both sides for summary judg- ment. The motions were dismissed.by the Supreme Court at special term, because of the fact there were issues of fact. Morrison, the property owner, appealed the case to the Appellate Division, which concurred. They never proceded any further with the case. Now what Mr. Gillispie is quoting from is the record on the Appeal of that lawsuit. Then after that, the property was validly zoned for "B-2" for which a marina is a legal use. In any case, it never was a non- conforming use. MR. We have not approached the issues in this case. We have spent about an hour going around the issues. This is a mere preliminary in my letter which sets the stage for the arguments I expected to set before the Board. MR. TASKER: Mr. Gillispie is merely reading your letter. BITSES: In other words you are corroborating what I am saying. MR. BITSES: That's right, we are not to the matters at hand. I~do not think he ever intends to get to the merits of the case. THE CHAIR~N: I find so many things wrong at the beginning. For instance under paragraph 17. The spirit of zoning is to restrict and not increase non-conforming uses and to eliminate such uses as speedily as possible. We agree. But this has nothing to do with this. It is not a non-conforming use. So we must eliminate that paragraph. Against this background, the respondent now comes before the Zoning Board for a further expansion of what originally started as a humble rural rooming house. This started as a piece of land which was rezoned from "A" residential to "B-2" business. Question No. 1. Strict application of the ordinance would produce practical difficulties or unnecessary hardship because: Then you go into the different aspects of the decision. The retail sale of boats has become a necessary aspect of the marina business today. You are giving what was decided. The business would be conducted at least 100 feet from Wickham Avenue and accordingly would not aesthetically change the nature of the neigh- borhood. 2. The hardship created is UNIQUE and would not be shared by all properties alike in the immediate vicinity of this property and in this use district because there are no other marinas nearby and because the applicant's property is presently zoned "B-l" which permits a marina use, of which the proposed retail sale of boats would be a necessary aspect. The variance would observe the spirit of the ordinance and would not change the character of the District because the applicant (- would still be operating marina business and a variance for the retail~- SOUTHOLD TO%fN BOARD OF APPEALS -27- August 17, 1978 sale of boats would not in any way change the character of the neighborhood. These all are points that we agreed with the reasoning of the applicant. Then you go on to tell us how to run the Zoning Board. MR. BITSES: No, just how the Court tells the Zoning Board to run itself. THE CHAIRMAN: We are perfectly willing for you to appeal this to a higher court and tell us how to do it. MR. BITSES: Will you read what the Court says? THE CHAIRMAN: Before the Zoning Board may exercise its discretion and grant a variance upon the ground of unnecessary hardship, the record must show (1) the land in question cannot yield a reasonable return if used only for the purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances and not to the general condi- tions in the neighborhood which may reflect unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character of the locality. This comes from Basset on Zoning and comes from pages 120, etc. The Zoning Board exercises its discretion in granting this variance based on its belief that this would be a hardship in the marina business not to sell retail boats. Many places in the Town in "B" business districts are now selling-boats. MR. BITSES: That is not the kind of hardship mentioned in the cases. THE CHAIRMAN: That is correct. MR. BITSES: Please read the next cases which are recent cases, 1977. It will make it more clear. THE CHAIRMAN: The Court of Appeals in McGown v. Cohalan and the Town of Islip "the property owner must show more than the current zoning classification has caused a significant diminution in value, or that a substantially higher value could be obtained if an alternative use is permitted. Rather, the proper test is whether the owner can presently receive a reasonable return on his property. To succeed...the owner must establish that no reasonable return may be had from any permitted use unless the respondent demonstrates beyond a reasonable doubt that the property will not yield a reasonable return under any of the uses permitted by the zoning ordinance he fails to satisfy his burden of proof. In our thinking on this aspect of it. We knew that there are only two or three places in the Town of Southold where a marina could be located. MR. BITSES: But that is not the point. THE C~LAIR~N: That is our thinking, that is not what the court says. $OUTHOLD TOWN BOARD OF APPEALS -28- August 17, 1978 MR. BITSES: Well the Court is paramount to this Board. The Board has been ignoring the Court decisions. Constantly. In this Ease particularly. THE CS{AIRMAN: I will ask that the Town Attorney respond to that, ~since he is far better equipped than I am to respond. MR. TASKER: I think that we should get down to legal cases. What in fact this Board is to decide tonight is in fact is whether there has been actual evidence presented to it which would change its decision. The question of whether or not the Board legally made its decision or its decision was improper is for a court to decide in an Article 78 proceeding. Not for this Board to review its own decision. If you disagree with the legalities of its decision, you appeal to the Court, but what you are merely bringing here is a request that they forgot or overlooked some facts concerning the circumstances of this matter. Had they known them before, they might have decided the case differently. MR. BITSES: It is more than just that. First of all they have opened the door to the issues by reading the last paragraph or two. Second of all it is far more than merely a decision of this Board, its a question whether or not the law of this State will be obeyed by a reading of the cases in this State. Do you disagree with the Court of Appeals in the Cohatan cases? Of course, you could not. MR. TASKER: Right or wrong. MR. BITSES: That is not the point. We are not here to argue cases. The door has been opened. I did not open it, he did.~ THE CHAIRMAN: I did not open it. You wrote. MR. BITSES: You read those paragraphs which dealt with the merits of the case, which these people here tonight want to present to this Board. You have ignored the merits of this case according to the cases cited by the Court of Appeals and cited by my brief. THE CHAIRMAN: are enthusiastic. Now that I have read something that you like, you MR. BITSES: Why don't you read the rest, there is more ammunition there. I want you to get to the heart of the matter, sir. THE CHAIP~LAN: What is the heart of the matter. MR. BITSES: The issues delineated in the Cohalan cases as explained by the Court of Appeals, by which this Board is bound. This is the law of the State. This is the law you choose to continually ignore. You ignored it in Ashe v. Gillispie. knd you have continued to ignore it. THE CHAIRMAN: Incidentally, what was Ashe v. Gillispie? MR. BITSES: Ashe v. Gillispie was a case in which the Board spot~ SOUTHOLD TOWN BOARD OF APPEALS -29- August 17, 1978 zoned a two-family in a one-family area. Mrs. Ashe had the money to go to Court, a local judge decided, one who should have probably dis- qualified himself, against Mrs. Ashe on the facts as well as on the law. ~r~. Ashe was obliged to take this Board to Brooklyn to the Appellate division in which the five judges of the Appellate division not only reversed on the law, but on the facts. Which is slap in the face to any judge. They annulled by their own act, the decision of the Board. in other words they did not refer it back to the Board, they annulled it right then and there. Mrs. Ashe spent alot of money, and this is what you are putting these people through now. THE CHAIRMAN: I think it is you who are putting these people through some difficulties. I submit that respondents answer the question No. 1 does not even address the requirements of the law. If "retail sale of boats is a necessary aspect of the marina business" it is not evidence that respondent is not presently receiving a reason- able return. The fact that retail sale of boats would not be a separate business or would be conducted 100 feet from Wickham Avenue is immaterial. He fails to carry the burden of proof. This is a very narrow interpre- tation by this judge. Whether all judges would feel the same, I do not know. If they did all feel this way, I think it would annual, or make it possible, most use changes. MR. BITSES: Use changes have stringent requirements under the law. THE CHAIRMAN: Judges don't seem to care so much about area changes. No. 22, I submit that respondents answer to question No. 2 does not satisfy the requirements of law. "There are no other marinas n~arby" is not what is meant by unique hardship. Again he repeats his inade- quate answer to question No. 1. "the proposed retail sale of boats would be a necessary aspect...of marina use." This is redundant and does not address the requirements of the law. He fails to carry the burden of proof. That is your opinion. An example of what is meant by unique hardship will be found in the following case: Petitioner re- quested a variance to erect a six foot chain link fence. Denial of petitioner's application to erect said fence and thus obtain a variance from the four foot fence limit, was arbitrary, capricious and an abuse of discretion, particularly in view of the 15 foot drop down an embank- ment to railroad tracts at the rear of petitioner's premises. Now that introduces extraneous fact. The 15 foot drop. MR. BITSES: These are unique circumstances. THE CHAI~4AN: I consider the Mattituck Harbor a unique circum- stance. No. 23. I submit that respondents answer to Question No. 3 is frivolous. The respondent seeks a use variance. It has been held that a use variance will have greater impact on the community than an area variance which does not involve a use prohibited by ordinance, however, magnitude of desired area of variance, while within the confines of permitted use, is a significant factor since the greater the variance from area restrictions, the more severe the likely impact on the community. In the instant matter the respondent has operated what has amounted to a floating hotel. (except this floating hotel uses Mattituck Inlet for a cesspool). Patrons arrive by boat and leave by boat. Use SOUTHOLD TOWN BOARD OF APPEALS -30- August 17, 1978 of the local streets is incidental and minimal. Now, however, respondent seeks a varaince for an additional use which will change %he character and alter the use of respondents property, making it a ~ thorough going commercial enterprise. Just at this point I might mention that in another marina case, I mentioned at the beginning of this discussion, most people come in here to object, but occasionally there are people who sign petitions to ask us to support something. We had another marina application a few years ago where we received a petition with 278 names asking us to permit the existence of the marina. But they don't come to the meetings. The respondent is surrounded on all sides by what amount to fine mansions. In the twelve years since he was allowed to obtrude, into this area, his patrons have pumped uncounted gallons of raw human sewage into the south end of Mattituck Inlet (which this Board knows is the stagnant end, lacking an ebb and flow). It is now dangerous to take shell fish in the vicinity of respondents premises. One swims near respondents marina at risk of hepatitis and polio. One walks the beaches surrounding respondents marina and is nauseated by the toilet paper strewn theron. Now the proposal by respondent is to pollute the streets in his vicinity as well, with an increased load of commercial traffic. This new use is bound to alter the essential character of the locality. I have always considered that the streets are for all of us. Agriculture, business, tourist and so on are free to use the streets in pursuit of their business. They are not polluting the streets by using them, even though some of us think so. On judicial review, following an adversary hearing at which both sides present evidence, issue before the court is whether the action of the Zoning Board on application for variance is founded on substantial evidence. CPLR 7803, Sub. 4. I f submit that respondent has utterly failed to submit the least shred of evidence to support his application. It would be no more than substantial justice for this Zoning Board to reopen and review respon- dents petition using the tests and criteria propounded by the cases herein. That the relief sought herein has not been heretofore applied for. WHEREFOR, Appellant demands a reopening and re-examination of respondent's application No. 2419, that the same be rescinded and denied. and for such other and further relief as may seem proper under the circumstances. Now that is the communication and it is accompanied by some affidavits, one of which was referred to particularly. I think that unless some other member of the Board wants to present something further as to the Town's action, that at this time the two attorneys, one for Matt-A-Mar and one for the opposition to Matt-A-Mar sum up very briefly. After which time I will ask the Board to decide whether they want to rescind, review, modify, annul or change or original de- cision. At this time I will call on Mr. Bitses. MR. BITSES: You have read to these people and the only point I would like to make is to repeat what the Court of Appeals has directed you gentlement to do. The proper test is whether the owner can presentl~ receive a reasonable return on his property. This means there has to be testimony be taken to indicate whether he is receiving a return on his property. Whether that return is a reasonable return. You who are present at the hearing, the alleged hearing, can testify that no such evidence of any kind whatsoever bearing on that requirement was intodu~ It further goes on to say, that the respondent must demonstrate beyond~ SOUTHOLD TOWN BOARD OF APPEALS -31- August 17, 1978 reasenable doubt. Let me tell you what a reasonable doubt is. In civil matters you have to prove your case in the preponderance of the evidence, a little more than 50 percent. In criminal cases the requirements are far more stringent, and your establish the guilt of the defendant beyond a reasonable doubt. The Court applies the same stringency to the use variances brought before these Zoning Boards throughout the state. In other words, the testimony that the proponent has to introduce has to be beyond a reasonable doubt according to the Court of Appeals not according to me or Mr. Gillispie, but according to the highest Court in the State. The seven members of the Court of Appeals who made the law in this state. There are many ways in which ~he law can be broken. A man takes a gun, goes into a gas station and holds it up. He is acting affirmatively. He breaks the law. There are ways in which the law can be avoided by being ignored. And I charge Gentlemen that you have ignored the law. The case law in this State, the Statutory Law in this Town, in granting this use variance on insufficient evidence. In fact on practically no evidence at all. That should have addressed the issues that the Board should have con- sidered. The issues laid by the Court of Appeals in the Cohalan series in February, 1977. Cohalan series and the other cases that were heard at the same time and which established, I should say reinterated the ground rules for the conduct for any Zcnin~ Board. I subs~it Gentlemen tkat you are totally ignoring the law as found in the case law as well as the statutory law. That is a breach cf trust. I am stating here before you tkat I believe you have breached your trust, not just in this cas~, but in a whole series of cases before this because you have not applied the requirements of the law. Thank you. THE CHAIRMAN: BefDre you go, Mr. Bitses, you wrote you me-a letter this morning. What you say is that what we are doing here is illegal. Have you changed your mind about that? MR. BITSES: I have to use the only tools at my disposal.' I am here tonight because these are the only tools at my disposal. To address this Board at this time. THE CHAIRMAN: But do you still consider that the reconsideration of this matter is being done illegally, and that tonight's action is a nullity as you refer to it? MR. BITSES: There has not been public notice. This place would have been packed if there were. THE CHAIR~N: I think you understand why there was not a public notice. I tried to explain that to you in the beginning. MR. BITSES: Well, if you read the letter, you will see that there are reasons why there should have been public notice. THE CHAIR~N: I think at this point the Tuwn nu~u~u3 ~Lt~tU ~2~u~- ject a few words and tell you why there is not a public notice about this. I have tried to tell you. SOUTHOLD TO,tN BOARD OF APPEALS -32- August 17, 1978 MR. TASKER: I talked to Mr. Bitses this morning about this. I explained it to him and see no point in going over it again. MR. BITSES: But in my letter I state that there are many people in this Town. I merely represent a small group. There are other people, if they had public notice, would come forward to introduce statements of evidence of their own, to which we will not be privy, because there was not public notice. That was my point in the letter. You are debarring a group of people from speaking. THE CHAIRMAN: I disagree with you. Mr.. Olsen, the attorney for Matt-A-Mar I would like to hear from GARY F. OLSEN, ESQ: Mr. Chairman, Ladies and Gentlemen. As I understood the purpose of tonight's meeting it was to give Mr. Bitses and his clients an opportunity to demonstrate to the Board that there was sufficient evidence that was not brought out at the variance hearing that on June 15, 1978, said evidence would be sufficient to persuade the Board that it perhaps should reopen the hearing. I respect fully submit that there has not been any new evidence submitted. Basical] what Mr. Bitses is doing is arguing a legal case which he has ... it is the wrong forum. The place to argue his arguments is before the Court. The public has had an opportunity to speak its mind. That is the whole purpose of a variance hearing. The Board felt at the hearing that the evidence submitted was sufficient. Whether the Board was right or wrong, this is not the proper forum to decide it. I think what Mr. Bitses is doing is basically under Section 267 of the Town Law. That section of the Town Law does give the power to the Board ~ to reopen the hearing if it has sufficient new evidence. This is not a public hearing. This is not the purpose. Now, what is called the Petition from Mr. Bitses sets forth a long history of this property, and he apparently is under the impression that the property is a non- conforming use, and that it is still zoned Agricultural-Residential. This is not the fact. It is not a non-conforming hotel use which he repeats for five or six pages in his petition. My clients, when they entered into the contract with Vina Baker now Vina Van Buren and George Van Buren, in 1964, only agreed to buy the property if they could use it for a marina. They did not want to use it as a hotel, a non-conformi! hotel. Vina Baker and George Van Buren applied to the Town Board to have the property rezoned. That was part of the contract. If they did not get the zoning change, my client was not going to buy the property. Now, the proper legal process took place as Mr. Tasker, the Town Attorne} has indicated to you. And the property was rezoned to B-2 in June, 1965. This property is rezoned for business, which permits a marina use. Afte~ that took place my clients closed title. Again in 1971 there was a general revision of the zoning ordinance and Matt-A-Mar Marina was again zoned for a marina use. All of the issue that Mr. Bitses has been raising about this property only being able to be used for a non-con- forming use is simply not the fact. The fact is that the Town Board properly and legally has zoned this property for a marina. Now, if you do not like the decision of the Zoning Board back in June which granted us permission to sell boats at retail, and it was a limited variance, then unless the Board is convinced to reopen the hearing, the proper / forum is to have it reviewed judicially by the Court. That is the size_ SOUTHOLD TO%FN BOARD OF APPEALS -33- August 17, 1978 of it. I have not seen any affidavits or any evidence submitted to the Board that I feel would enable the Board to reopen the hearing of June 15, 1978. The only affidavit that has been submitted with Mr. Bitses' papers is an affidavit from Mrs. Van Buren that stated back in 1965 the property was never used for a marina. It is very strange that she did not mention the change of zone. That affiHavit is only good to persuade the Board that it is a non-conforming use for a hotel. She did not mention that she, herself, got the change of zone. MR. BITSES: We checked the variances, and none exist for this property. THE CHAIRMAN: We did not do a variance. A change of zone is granted by the Town Board. MR. BITSES: There must be in the records the minutes of the Town Board, which we cannot find. MR. TASKER: You must look under Van Buren. MR. BITSES: We have checked the Town Board minutes, and we cannot find any change of zone for this property. MR. TASKER: On June 25, 1965, go to the Town Clerk's minutes, and you wil~ see them. You will see the minutes of the public hearings, the affidavits, everything. MR. BITSES: That was not the information I received when I got when I applied .... THE CHAI~k~N: Mr. Bitses, Mr. Tasker was intimately associated with creating the Ordinance. MR. BITSES: I can only go to the Town Clerk and ask for the information. MR. TASKER: You are not asking for the right information. You went and asked for the minutes where the Town Board granted a variance. There are no such things. The Board of Appeals did not grant a variance for a marina. It was the Southold Town Board which rezoned that property. MR. OLSEN: I have the record on appeal of the Morrision matter versus Matt-A-Mar. As a matter of fact a co-defendant with Matt-A-Mar was Van Buren. Mr. Morrison challenged the change of zone with a Declaratory Judgment. I would like to read an affidavit from Mrs. Van Buren. Vina Baker and George M. Van Buren, being duly sworn, depose and say: (1) We are owners and holders of a mortgage resulting from thc sale of the premises in this matter to Matt-A-Mar, Inc., a copy of which is annexed hereto as well as the bond. The mortgage was recorded and the recording information is given. Our sale to Matt-A-Mar, Inc. was. made expressly contingent upon the granting of a rezoning of the Town of Southold. It would be a miscarriage of justice to deny Matt-A- SOUTHOLD TOWN BOARD OF APPEALS -34- August 17, 1978 Mar, Inc. the right to operate their premises for the intended use after amendment to the zoning ordinance. I think you have all been mislead and misinformed. THE CHAIRMAN: I would like to limit .... go ahead, we are not trying to suppress anything. VICTOR LESSARD: Do you want new evidence, I will give it to you. I live directly across from Matt-A-Mar. At the time I was the Presi- dent of the Association of over 300 members. When we heard they were going to buy the place, I.came with over 300 signatures. I know about the. original "A", "B", "C" thing. I brought out the point that the zoning was broad. It could be sold as one thing, and used as another. That was the r~ason for the rezoning, and that was why it was turned down. Now, obviously this Board hasn't got the blueprints for the original application or none of this would even be here. The original application showed a big restaurant in the center of the property superimposed over the existing hotel. It showed a ramp for boats in the southeast corner by Wickham Avenue. Now the judge is now retired, I won't mention his name, acted as an intermediary to try to iron all of this out. He convinced me that I should convince my group that the Town needed a big restaurant that would overlook the water, and the boats and all that. When I asked what the thing over in the back corner was, he said that's a boat ramp. I said no way. It was agreed there was never, and I don't know how long never means, there would never be any-sale of boats, repair of boats, or anything to do with boats on that land. All boats would have to stay on the water. There would never be a launching ramp to launch the boats. Under those agreement I went back to talk to the Association, and they withdrew the petition. With the understanding that this would be definite. That is the way it stayed. I missed that one in June because I did not see the paper. THE CHAIRMAN: The paper was misinformed on that one. The paper has said twice now that we granted permission for a building to store boats. We did not. We talked about it, and the applicant withdrew the application for a building to store boats. It seemed obvious to us that a huge building to store boats as we see down by Port of Egypt would be very unsuitable to this area, which we felt was adequately screened by the woods. In fact if you are looking for a good place to put a marina, this would seem to be it. I have read the early trial on spot zoning, and I saw some reference to a restaurant. I do not know what you are referring to about an agreement. This a matter where the zoned is changed. MR. LESSAP~: This happened after the zoning was changed. I was guaranteed by the person who was mediating if the place was ever sold, the owner would have to resubmit to this Zoning Board before he could go in there with another type business. Also in that was the big rastaurant that turned out to be an over-sized hot dog stand, but that is all right, in my ow~ interpretation. THE CHAIRMAN: You see the way I view it, the applican~t has the I' right to sell boats under the B-2 zoning. Then when it was later SOUTHOLD TOWN BOARD OF APPEALS -35- August 17, 1978 changed in 1971, the right was taken away from him. Also to store boats. It was placed in a light industrial zone. There are very few light industrial zones in the Town. MR. LESSARD: In other words the promise that was made was only good until the man's death. THE CHAI~LAN: I do not know who the man was, ... MR. LESSARD: I know the man who was talking to me meant what he was saying. THE CHAIRMAN: We have not had anything on Matt-A-Mar until January, 1977. This Board has never had anything. I have been here the whole time. MR. LESSARD: I'm sorry then, you would not be aware of any of this. THE CHAIRSt~N: You must be talking about a Town Board action, I guess. MR. BITSES: He has just submitted new evidence. MR. LESSARD: He certainly had to submit this to the Zoning Board. THE CHAIRMAN: No, the To%~ Board. MR. LESSARD: Would that require a map of what you are goiDg to do with it? THE CHAIRMAN: The Town Board would. MR. LESSARD: In other words if it isn't down in black and white, it doesn't amount to anything? with kind THE CHAIRMAN: I do not think that the Town Board changes a zone stipulations, which I think is illegal. You cannot stipulate what of a business can go into a business zone. MR. LESSARD: Let's go back the other way then. The only reason these promises were made was because they were two people against 300. They agreed to this. MR. TASKER: Who agreed. MR. PAUL MURPHY: Judge Tuthill specifically. MR. TASKER: Agreed with who? You are talking about a legal agree- ment. That is the only thing we have to go by. If ~ m~mb~r ~f ~h~ B~r~ told you something verbally and it never got into writing, it has no bearing. MR. MURPHY: You memory is quite short. We used to do things that way, and everyone was very happy. SOUTHOLD TOWN BOARD OF APPEALS -36- August 17, 1978 MR. LESSAPD: Hey, this man was a Judge. A man is only as good as his word. MR. TASKER: The agreement was for a restaurant there? MRS. RITA MURPHY: The agreement was that nothing would ever be done on Mr. Lessard's side and on the Brower Woods People. The owner of Matt-A-Mar Marina promised on his word as a gentlemen that he would just have a few little docks there for the boats that came in. There would be no great thing. THE CHAIRMA~N: What year was this? MR. MURPHY: I guess it was way back in 1965 or so. THE CHAIRMAN: About that same time Matt-A-Mar .... MRS. MURPHY: Maybe it was before he first opened, sir. Because we were all against it when the man was trying to originally buy the property. That is when all the petitions were withdrawn, because we had a gentlemen's agreement that it would never do anything to ruin our land or our water. It was just going to be a cute little country marina. MR. JAMES DELAHANTE: right to sell boats. Your last action granted Matt-A-Mar the THE CHAIRMAN: 15 boats on nine acres. MR. DELAHANTE: I submit that you should reopen the matter because this case is bound to lead to future requests. You cannot sell boats just out in a field. Sooner or later these people or their successors have to come back to you for permission to have a building there to sell the boats. THE CHAIrmAN: Up to know, I understand Matt-A-Mar has operated without winter storage. That was granted to them in January, 1977. MR. DELAHANTE: Yes, we know. One thing inevitably leads to another. I suggest that a valid reason that this case be reopened is you must consider where this action will lead us. We are all here trying to protect what we have. We bought residential property, and we expect you, the Board, to uphold what is right. We did not buy next to a shipyard. I could have moved to Brooklyn, but I didn't like it. I moved to Mattituck. Some of these people were gullible they took somebody's word for something. I would never do that, because it has no legal standing. They are gentlemen, and they think the other guy is a gentlemen. THE CHAIk%~A~N: I cannot believe that Judge behalf of Matt-A-Mar. MR. DELAHANTE: Because he is a gentlemen and he spoke in good faith. SOUTHOLD TOWN BOARD OF APPEALS -37- August 17, 1978 MR. LESSARD: We were all there, sir. This was not a one-sided conference. THE CHAIP~AN: This was a meeting of all 300 people. MR. LESSARD: There were 3 or 4 meetings in the Judge's house, with both parties. There was an agreement with both parties. THE CHAIRMAN: That there would never be a marina there. MR. LESSARD: That there would never be a ramp there or any boats stored or repaired on the land. THE CHAIRMAN: It would be interesting to know when that was be- cause there is an affidavit here for 1,600 feet of bulkheading. MR. DELAHANTE: If I might just close since I have the floor. I really think before you finally decide on this matter, you all ought to consider, where does it lead us? Where does it leave us? These people will proceed one step at a time. Where will be end up? We will have another Brooklyn on our hands. THE CHAI~kAN: I think we have already reached the turning point with them on the question of a building, for storage of boats. MR. DELAHANTE: No, because granting them the right to sell, you are building a valid case for them to come back and request.., it will follow. One step follows another. JAMES KLEIN: From Brower Woods. I was a little aggrevated or thinking wrongly about the variance procedure. I thought the Town Board built the zoning laws and a variance was something that was granted by the Board here to allow people to do something who would not hurt anyone else. Or legally breaking the law. I thought that if a group of people objected to your breaking the law, you would not do it. The poor fellow who is caught in the bind, tough. THE CHAIRMAN: Ail the judges have told us you cannot take a referendum on a zoning decision. It would be very simple if you could. All you would need is a secretary here. Somebody to read the case. Based on a popular vote, you cannot grant variances. MR. KLEIN: By these hearings you bring out alot of facts. You know what is going on. We are involved in that area, we do not want that to become a Greenport Shipyard. Down at the head of the Creek by the Old Mill. That has plenty of storage. That is building up and will probably move down the creek more. This one may become a partner to that one, who knows? We would like to leave the situation the way it is. Mr. Morrison was in the Association, I was in the Association when he started his operation and he indicated he was going to carry it through himself. I do not know why or how it dropped. We respectfull~ submit that we should be very cauious in allowing variances for a few individuals and not allowing them for others. MRS. LAURA KANNWISCHER: I had not intended to speak tonight, but my SOUTHOLD TOWN BOARD OF APPEALS -38- August 17, 1978 husband and I are the newest members of Browers Woods. We are from Pennsylvania. We moved out of a suburban area and came out here to find some peaceful country living. We have waterfront property there. From what I have been able to see...we are boat owners, we have a sail boat. I do not believe, from what I have seen, that the Creek will support another large marina, or large size boats. I think in all fairness you should consider that one thing will lead to another. THE CHAIR~IAN: In other words, you are for no changes. MRS. KANNWISCHER: Yes, I am. I like the way it is now. I see enough power boats go through there. I see enough garbage and has to pick up enough to last me a long time. MR. RUBRICH: When a variance changes. Do they have to have a cesspool? Do they have to have a garbage disposal? Not use the inlet as they now. They not only use the road, they use the inlet, just watch them. They make no bones about it. Do they have a holding tank? How come you can go swimming in that inlet until June, after June no one dares go in there. They are crazy if they do. Who allowed them to do that. ROBERT HALLIDAY: I would like to ask the Town Attorney a question. Do you know the final status of the Morrison case? MR. TA~KER: It is dead. They never proceeded. You will have to ask Mr. Morrison, why they never went any farther. It went to the Appellate Division. There was no final adjudication. When the case on the calendar, there were motion to dismiss by both sides. It was dismissed by the trial judge. MR. BITSES: Who was the trial judge? MR. TASKER: It was Cohalan. That motion was appealled to the Appeallate Division and affirmed. MR. HALLIDAY: When the case was in the court, that is when the zoning was changed? MR. TASKER: The zoning was changed before the law suit was even started. The law suit questioned the change of zone. Mr. Morrison claimed that the Town Board acted illegally when they changed the zone. That was a fact. It had to have been changed before you could bring a law suit. MR. HALLIDAY: I think there were 3 changes weren't there? "B-2", and "M-i."? "B-1 ," MR. TASKER: No. I think what you are referring to is after all thi and I think, it is just supposition on my part, this is why Mr. Morrison did not follow through on this. Just about this time we were going through the Master Plan Study. It was finally enacted in 1971, at which time the Master Plan strongly recommended this property for business u~t $OUTHOLD TOWN BOARD OF APPEALS -39- August 17, 1978 Therefore, it would be my attitude that if Mr. Morrison had won, all he would have done was wipe out the 1965 change. It was changed in 1971, so he would not really have won anything. MR. ALLEN DAWE: I will try to be very brief. I own property right around the corner on the creek. This new person, four doors up from us, subject to all the abuses the creek enjoys(?). The thing it would seem to me that would be the turning point would be when you allow a marina ...... THE CHAIRMAN: It is not being allotted by us. He has a right to operate as a marina. MR. DAWE: I understand that. Do you have a right to change the operation of the marina? Let's go back to the basic ..... THE CHAIRFuAN: I would say no. MR. DAWE: You have done it by granting this variance. THE CHAIRMAN: We have varied what is permitted in different zones at different times. That is the purpose of the Board. We grant variances and special exceptions. MR. DAWE: I am unclear about the Ordinance. What is in writing anywhere that says a marina shall do this, shall not do this, shall do this. Where are the rules for running a marina? THE CHAIRMAN: At the present time, I am reading Ordinance dated 12/25/76. "Uses permitted in the B-Light Business District. There are other things you can do in this district besides marinas. No. 9 is marinas for the docking, mooring, accommodation of non-commercial boats including the sale of fuel, oil, primarily for the use of boats accom- modated in the marina. Now that is the present limited concept of what ~can be done by a marina in the B Light Business Zone. MR. DAWE: There are no words in there that boats can be stored or repaired. THE CHAIRMAN: The reason the ordinance was revised, and which has caused so much confusion, was to place certain aspects of the boat business in a heavier use classification. That is now covered by the C-Light Industrial district. Boat building, boat servicing, boat storage facilities. Not pulling your boat up on dry land, which is done all over town. MR. DAWE: Not winter storage. THE CHAIRMAN: That's right. Boat storage facilities means building~ That s~rt of things. MR. DAWE: Does Matt-A-Mar come under that? SOUTHOLD TOWN BOARD OF APPEALS -40- August 17, 1978 THE CHAI~-~N: They are not permitted to do that. MR. DAWE: You have now given them permission to do something tha~ is not in the Ordinance. THE CHAIR~Q~N: In between, I would say. MR. DAWE: I cannot see the in-between in your decision. I would like to be on your side. THE CHAIRMAN: Zoning as it is now has evolved slowly. Originally it was permitted to have marinas. Then a few words were added. Nobody contemplated originally the number of boats that are now in the area. Nor did they in the original zoning ordinance 20 years ago have all thes~ things delineated. Mr. Tasker was talking about 1965 when they created 3 new zones which involved marinas. That was one of the reasons for creating it along with the Master Plan. MR. DAWE: Why can't you take the initiative and spell out exactly what cannot be done before someone like comes to you asking for it. THE CHAIRF~N: The applicant was about to ask us for storage facilities, and withdrew the application. Actually, Mr. Dawe, we saw practically no effect on the marina by permitting the applicant to sell up to 15 boats on nine acres of property. Now when you consider com- pared to an automobile storage depot, it is a fraction of what is stored on an automobile lot. We further thought permitting the sale of used boats as he also mentioned would involve using the docks and lessen ( pollution. Because a used boat at one of his docks presumably would use space that could be occupied by someone in transient. So that our net belief was 15 boats, new boats, available somewhere for someone to look at and might want to buy them, would seem a necessary adjunct to many boat operations. MR. DAWE: Wasn't that a rather naive decision to say 15 boats a day, 15 boats an hour? THE CHAIR~AN: No 15 boats to be stored there at any one time. MR. DELAHANTE: Yes, but if you let him store them to sell them, that requires a building. Can't you see that? In a year or two he will come back and say I have permission to store, now I need a building because my merchandise is deteriorating. THE CHAIRMAN: Not unless he can put them in the buildings he already has. We already have alot of boats that are outside now in the Town. Southold, for instance. MR. DELAHANTE: Those are not new boats, sir. THE CHAI~3~N: There are new boats out to $40,000 dollar boats. MR. DELAHANTE: You will never be able the Brooklyn Navy Yard. there. They are $30,000 to pull this off short of SOUTHOLD TO~fN BOARD OF APPEALS -41- August 17, 1978 ,¢ MR. BITSES: Mr. Gillispie, may I suggest a possible compromise? I address myself... There is a possiblity of a compromise which I outlined in my letter to my learned colleague. I suggested to him that maybe, I have not discussed this with any members of my group, If we could work out a 200 foot buffer zone which would be parallel to Wickham Avenue. The owner of the marina has let the trees grow around his marina. He has tried to create a relationship with the members of the community. If he would put into writing that forever this ribbon parallel to Wickham Avenue would be untouched, maybe this would be agreeable. (People in the audience said "No Way", "Forget That"). Turning to his group of people, Mr. Bitses said "Did I talk to you about this before. Okay, I withdraw it." MRS. KAN~ISCHER: If I am not mistaken, it is now a federal law that a Marina must have a holding tank. MR. DOUGLASS: I think that if you check closer that that law has been nullified by the Federal Government until further study and standards. Holding tanks are not required as of now. They have requirements coming out approximately in the year 1980. Right now they have nullified most of that law. They recommend the use of a certain system which reactivates the waste. MRS. KANNWISCHER: They have this law already in Maryland. MR. DOUGLASS: You will find it is not a regulation now. MRS. JAMES DELAHANTE: There are alot of issues here that have not been discussed at all. One very important issue is the impact of Matt-A-Mar marina on the water table. All these boats fill their holding tanks with water. All of these boats empty their sewage into this creek. There is a swimming pool that is filled with fresh water. We do have a water shortgage. There is a water with problem on Long Island. No one seems to care how much water he is using. No one seems to care what he is doing to the creek. The fact that this does not come before this Board is of no significance. Just who do we go to to stop the pollution and contamination of the creek? Just who do we see. You say the Town Trustees. What do they do about it? Nothing. I happen to know that anyone who happens to speak up for us there are 3 to 1 on any environmental issue. It is hopeless. I maintain that Matt-A-Mar marina was put there for one reason and one reason only. Zoning was changed for one purpose and one purpose only, to furnish business for the Town of Mattituck. For the Chamber of Commerce. THE CHAIP~L~N: I think that probably did have influence on the matter. Is there anyone else? MR. MURPHY: I think just from the gist of the conversation, that you gentlemen have the opportunity now to help stop what we call pollu- tion. You do, through the nature of your office, have the right to grant, disallow variances. Here is a prime example of an overwhelming group of people versus individuals in a business with a hardship. That you have the opportunity now, by your actions, to reconsider your origina~ permission and annull and void ..... SOUTHOLD TO~ BOARD OF APPEALS -42- August 17, 1978 THE CHAIRF~N: You are asking us to do something that we do not personally feel has any effect on pollution one way or the other. ~ MR. MURPHY: I -will agree with you. Because if you did you would not have granted the original variance at all. THE CHAI~%~N: If we do what you are talking about, there would not be anything, would there? You couldn't have a store, automobile lots. MR. MURPHY: It is the wishes of a vast majority of people that you people do something constructive that would help us on the creek, help the citizens of Mattituck by having the Creek there, by not allowing any more enlargement of the present business down there. That it will stay the way it is. We can only assume by the granting of variances that the creek will get worse and the road will get worse. Or the air will get worse. We are not doing anything for our own personal gain. We are asking that you let common sense dictate. This is not the will of the people, who you people should represent. MRS. STELLA HARVEY: I would like to extend an invitation to you gentlemen to come and have a swim in our creek some Sunday afternoon. Mr. Tuthill, all you have to do is walk across the street and j~ump in. MR. TUTHILL: I have only been on this Board one month. This is my second time around, and if I am going to speak to you because you are my neighbors, and I am therefore saying I do not want to get into legal technicalities. Basically as I understand it and see it, the Board of Appeals has limited function, and basically it is common sense and good judgment. Regardless of Court decisions and other things. As you know I live pretty close to Matt-A-Mar, and I am not going to get into pollution and all those things. Basically if you understand the workings of the Board of Appeals, this is not within their province. Mrs. Delahante I do not know where to tell you to go for relief for alot of your problems, but alot of the things I have read and I believe a great many of ycu are against the existence and growth cf Matt-A-Mar more tl~an you are interested or objecting to the 15 boat allowance as a condition. Consequently, if this is the issue, the variance it seems to me was a very limited thing allowing the man to sell and dis- play 15 boats, that is one thing. We can not do anything about the pol- lution and that type of thing. Where you go I do not know. The exis- tence and how it got that way is done and past. It was apparently done legally. We have Matt-A-Mar. We certainly know that you people do not want to have it expanded in any way. I live 600 feet away from it, and I cannot see how the display of the boats 100 feet behind the woods is going to ruin the neighborhood. I am doing this to explain what may be my vote when this comes to a resolution. MR. MOLIKE: What can happen is what happened twenty years ago when no one wanted to buy it as a hotel. They had the zoning changed to accommodate a marina. He wants to sell this place. He can come for a further variance. THE CHAIP~4AN: It has happened, and he was denied. SOUTHOLD'TOWN BOARD OF APPEALS -43- August 17, 1978 MRS. STELLA HARVEY: I live across from Matt-A-Mar Marina. In June when that variance was granted, you give them permission originally to sell 10 boats and within two seconds he was given another five boats so he could sell 15. This is exactly what we think is going to continue to happen. So in another couple of months or next year, he will ask to sell 50. This is what we are trying to avoid. Who is going to keep track of those boats. THE CHAIR~N: I think the hour is getting late, and we should start to wind this up. On motion by Mr. Gillispie, seconded by Mr. Grigonis, it was RESOLVED that the Board of Appeals REAFFIk~ their decision of June 15, 1978, concerning the retail sale of new boats and DENYING the application made by James Bitses, Esq. in connection with the retail sale of new boats by Matt-A-Mar Marina. Vote of the Board: Ayes: Messrs: Gillispie, Grigonis, Doyen, Tuthill and Douglass. On motion by Mr. Gillispie, seconded by Mr. Tuthill, it was RESOLVED that the Southold Town Board of Appeals approve minutes for tha July 27, 1978, meeting. Vote of the Board: Ayes: Messrs: Gillispie, Grigoni$, Doyen, Tuthill and Douglass. On motion by Mr. Grigonis, RESOLVED there were eleven as submitted. On motion by Mr. seconded by Mr. Tuthill, it was (11) sign renewals reviewed and approved Tuthill, seconded by Mr. Doyen, it was Vote of the Board: Ayes: Messrs: Gillispie, Grigonis, Doyen, Tuthill and Douglass. The secretary was instructed to write to the Board of Appeals RESOLVED that the Southold Town Board of Appeals grant permission to the Mattituck Gun Club, Inc., to hold their annual "Turkey Shoot" on Sunday, September 17, 1978. SOUTHOLD TOW~ BOARD OF APPEALS -44- August 17, 1978 to find out what their requirements are concerning a business in a home in a residentially zoned area. We have recieved a request from A. G. Wallin, 196 Gull Pond Lane, Greenport, who wishes to conduct a mail order business from his home. It was resolved that Thursday, September 7, 1978, be the date for the following: On motion by Mr. Gillispie, seconded by Mr. Tuthill, it was RESOLVED that the Board of Appeals set 7:30 P.M. (D.S.T.) as time and place for the postponed hearing upon application of John Boaxter, 27 Wiltshire Drive, Worcester, Massachusetts. Vote of the Board: Ayes: Messrs: Gillispie, Grigonis, Doyen, Tuthill and Douglass. On motion by Mr. Tuthill, seconded by Mr. Grigonis, it was RESOLVED that the Board of Appeals set 7:40 P.M. (D.S.T.) as time and place for postponed decision upon application of Donald and Virginia Leden, 156 Sterling Avenue, Greenport, New York. Vote of the Board: Ayes: Messrs: Gil!ispie, Grigonis, Doyen, Tuthill and Douglass. On motion by Mr. Grigonis, seconded by Mr. Doyen, it was RESOLVED that the Board of Appeals set 7:50 P.M. (D.S.T.) as time and place for postponed decision upon application of Marion M. Roussin, General Delivery, Southold, New York. Vote of the Board: Ayes: Messrs: Gillispie, Grigonis, Doyen, Tuthill and Douglass. On motion by Mr. Doyen, seconded by Mr. Douglass, it was RESOLVED that the Board of Appeals set 8:05 P.M. (D.S.T.) as time and place for hearing upon the application of Ann Helen Sarnowski, Old Cove Road, Cutchogue, New York, for a variance in accordance with the Zoning Ordinance, Article III, Section 100-30 and Bulk Schedule for permission to change lot lines. Location of property: Old Cove Road, Cutchogue, New York, Lot No. 196 on Map Of Nassau Point, Cutchogue. New York. On motion by MR. Douglass, seconded by Mr. Doyen, it was Southold Town Board of Appeals -36- January 27, 197~ THE CHAIRMAN: Is this a year-round house? GEORGE AHLERS: Yes. I believe Mr. and Mrs. Gold paid $40,000 for this lot, it's a bit much money, and they want to put the house up that they would like to have. GERARD GELBWAKS: We did it too. MARION GELBWAKS: We wanted the beauty of the place, .untouched and unspoiled and it has an open feeling. it's THE CHAIRMAN: Well, George, you're not going to build any- thing for three weeks anyway. Would you, in the interest of being a good neighbor, see if you can persuade them to increase the side yards. If you cannot, we would, based on precedent here, have to grant the reduced side yards. But you might suggest it, they might like it better, and put it to them as diplomatically as possible. On motion by Mr. Hulse, seconded by Mr. Gillispie, it was RESOLVED that the Southold Town Board of Appeals POSTPONE DECISION upon Joseph Gold application, Appeal No. 2239, until February-17, 1977, at 7:45 P.M. Vote of the Board: Ayes: - Messrs: Gillispie, Hulse, Grigonis. PUBLIC HEARING: Appeal No. 2242 - 10:25 P.M. (E.S.T.) upon application of Matt-A-Mar, Inc., Wickham Avenue, Mattituck, New York for a variance in accordance with the Zoning Ordinance, Article VI, Section 100-60 A (9) for permission to store boats on the premises. Location of property: west side Wickham Ave- nue, Mattituck, New York, bounded on the north, south, and west by Mattituck Creek; east by Baker and Wickham Avenue. The Chairman opened the hearing by reading the application for a variance, legal notice of hearing, affidavits attesting to its publication in the official newspapers, and notice to the applicant. The Chairman also read statement from the Town Clerk that notification by certified mail had been made to: Vina Baker & Ano. Fee paid - $15.00. THE CHAIRMAN: The County tax map indicates that the marina is located on approximately nine..acres, a peninsula off of Wickham Avenue. Is there anyone present who wishes to speak for this application? Are you Frank Nowak? Is there anything you want to add to the application? FRANK NOWAK: No, I think it's pretty self-explanatory. Southold Town Board. of A~peals -37- January 27, 1977 THE CHAIRMAN: Did you used to store boats here? FRANK NOWAK: No, we never went into that. Originally, the zoning for the marina was such that we could store boats and when they changed it the last time, apparently it was changed so that we couldn't. THE CHAIRMAN: Storage and repair of boats which had been an accessory use in a marina would be in a marina district where .you would have a marina, the district you have. It was modified to, I think it was meant to cover large buildings and so forth which was probably initiated as a result of the Strong Marina, the people wanted to build a big building down there. In other words, it's a grey area in there as to what constitutes an ac- cessory use, when the accessory use becomes the main use, when is a marina not a marina. I don't think anybody could really de- fine a marina. I was in court in Riverhead once with the man who said he initiated the word "marina", a New Yorker. He was unclear about it because the concept of a marina is changing. But, a repair shipyard has to be in the light industrial area, but I think what you propose here is non-commercial. FRANK NOWAK: It's strictly private. THE CHAIRMAN: You need the fees for storage and also as a convenience for the owners, and you make some repairs. FRED HULSE, JR.: How large a boat would you store? FRANK NOWAK: It's a big area. FRED HULSE, JR.: I know there's a lot of room there, but how big a boat do you take in? THE CHAIRMAN: What's the longest boat you store now? I mean dock. FRANK NOWAK: We dock boats up to 60' FRED HULSE, JR.: Could you handle storing a boat that size? FRANK NOWAK: No, that's too big. The average boat is around 30' or 40'. FRED HULSE, JR.: Do you have a travel lift or anything? FRANK NOWAK: No, not at the present time. FRED HULSE, JR.: You'd have to get one then. THE CHAIk~AN: You could put it over here on this side, on the north side. Southold Town Board of Appeals -38- January 27,~1977 FRANK NOWAK: On the south side. That would be the more logical side. THE CHAIRMAN: This is all wooded area here and back here, your whole lot is wooded. FRANK NOWAK: Well, it's sparsely wooded, 'very light.~ THE CHAIRMAN: Is there a~yone present who wishes to speak against this application? ~ ' (There was no response.) THE CHAIRMAN: If not, I'll offer a resolution granting this application as applied for and agreeing with the reasoning of the applicant. Permission is granted to store boats. You plan to store boats that dock in your marina, right? FRANK NOWAK: That's correct. THE CHAIRMAN: Not in excess of the number of boats that dock in the marina. You have, what, 70 slips? FRANK NOWAK: I have requests for boats from various places, people that would live in different places that would like to store on the island. Of course, this would add to our employment. THE CHAIRMAN: would you want. How many boats do you think you can count on, FRANK NOWAK: That's a very difficult question. THE CHAIRMAN: It looks to me like you have plenty of room there. FRANK NOWAK: I have to put that to some use, it's sitting idle. THE CHAIRMAN: You have a pool there. FRANK NOWAK: That's for the boaters and we use that strictly for the boaters. FRED HULSE, JR.: What did you say, you have 70 slips now? FRANK NOWAK: No, about 80 slips. THE CHAIRMAN: And you haven't built up the whole area yet, I think you have permission to go all the way around. FRANK NOWAK: I have a permit from the Town of Southold to go all the way around. I'd have to get the Army Corps of $outhold Town Board of Appeals -39- January 27, 1977 Engineers' permit and the New York State Environmental permit. THE C~AIRMAN: Well, let's put a limit of 100 boats on it. If you need more than that, you can come back to us. We'll see how it goes, we can review it after a couple of years. FRANK NOWAK: It's such a large piece to put a limit on, it would be kind of a hardship if we got into the business. To limit it, once you set it up as a business, would not be an .ideal situation, if you go out, purchase a travel lift, and put it in. THE CHAIP~AN: It's hard to put restrictions on something like this. FRED HULSE, JR.: Maybe we should set it back so many feet from the road, so we can avoid a situation like the one down here with the boats right out on the road. FRANK NOWAK: There's a breaker zone of woods in front of it. THE CHAIRMAN: at all, would it? FRANK NOWAK: 100' off Wickham Avenue wouldn't bother you No, not at all. It's a large enough piece. THE CHAIRMAN: If you were driving along here, I don't think you'd be able to see boats stored over here. MRS. NOWAK: there, there are street. We wouldn't want to put them out on the road houses across the street. We live across the FRANK NOWAK: There's a buffer zone of woods there. It's bulkheaded from this corner (on map) to about here. right across right around THE CHAIRMAN: It's got about 87 slips around to here, right? It looks like you uould put in another 40 or 50. FRANK NOWAK: I get a lot of people asking for storage. This is why we originally did it. THE CHAIRMAN: Anyone else wish to speak for this application? (There was no response.) Anyone against? (There was no response.) Southold Town Board of Appeals -40- January 27, 1977 After investigation and inspection the Board finds that the applicant requests permission to store boats on the premises, west side Wickham Avenue, Mattituck, New York. The findings of the Board are that the Board is in agreement with the reasoning of the applicant. The Board finds that strict application of the Ordinance would produce practical difficulties or unnecessary hardship; the hardship created is unique and would not be shared by all properties alike in the immediate vicinity of this property and in the same use district; and the variance will not change the character of the neighborhood, and will observe the spirit of the Ordinance. On motion by Mr. Gillispie, seconded by Mr. Hulse, it was RESOLVED, Matt-A-Mar, Inc., Wickham Avenue, Mattituck, New York be GRANTED permission to store boats on the premises, west side Wickham Avenue, Mattituck, New York, as applied for, subject to the following condition: There shall be no storage or marina uses within 100' of Wickham Avenue to the east. Vote of the Board: Ayes: - Messrs: Gillispie, Hulse, Grigonis. PUBLIC HEARING: Appeal No. 2244 - 10:40 P.M. (E.S.T.) upon application of Helmut Hass, North Road; Peconic, New York for a variance in accordance with the Zoning Ordinance, Article III, Section 100-30 and Bulk Schedule for permission to set off lot with insufficient area. Location of property: south side CR27, Peconic, New York, bounded on the north by CR27; east by Cornell Construction; south by Suffolk County; west by other land of applicant. The Chairman opened the hearing by reading the application for a variance, legal notice of hearing, affidavits attesting to its publication in the official newspapers, and notice to the applicant. The Chairman also read statement from the Town Clerk that notification by certified mail had been made to: Joseph C. Cornell Construction Corp.; Suffolk County; Richard Foster and Margaret Foster. Fee paid - $15.00. THE CHAIRF~%N: The application is accompanied by a survey indicating that there is a one-story, framed shop on this parcel which the applicant proposes to sell. It's a long parcel, 501' on the west and 100' on CR27 on which there's a one-story shop, a one-story, framed house and a two-story framed house. The ?~ c? ~-~ ×/~/-3 - / TOWN OF SOUTHOLD PROPERTY RECORD_ CARD OWNER STREET VIL~GE ~ ~. SUB. F~ER ~NER E ' / ~R, ~ ~ ~?~/l' ~- ~- S W ~ OF BUILDING R~. ~76 S~. VL FA~ ~ CB. MICS. Mkt. Value ~ND IMP. TOTAL DATE R~RKS , Till~bl~ , FR~TA~E ON WATER ~ ~ .,. W~la~ FRONTAGE ON ROAD ~. ,j ~ J ,r~'~l~,~, ~ H~ Plot BULKH~D ,~' ? T Total 757 COLOR Foundation Ext. Walls Fire place Type Roof HfP Floors Ipterior Finish Rooms 1st Floor Dinette Ko LR. DR. BR. TRIM Patio Recreation Room Roams 2nd Floor FIN. B O. & Dormer Driveway TOWN OF SOUTHOLD PROPERTY RECORD CARD OWNER" STREET VILLAGE D R~I'. LOT S ' ~PE OF BUILDING ~N D IMP. TOTAL DATE Valu~ P~r Valu~ / k j House Plot / ¢¢ .... .. COLOR TRIM M. Bldg. Extension~;~' Extension Extension Porch Breezeway Garage Patio Total 3asement Ext. Walls Fire Place Type Roof Recreation Room Dormer Driveway Bath Floors Interior Finish Heat Rooms 1st Floor Rooms 2nd Floor inette LR. DR. BR. FIN. B. k..,~' .. ~ ' '~ ; TOWN OF SOUTHOLD PROPERTY RECORD CARD OWNER STREET VILLAGE DIST. SUB. LOT FORMER OWNER N E /~ . S W TYPE OF BUILDING RES. SEAS. VL FARM COMM. CB. MISC. Mkt. Value LAND IMP. TOTAL DATE REMARKS AGE BUILDING CONDITION ~NEWt__ NORMAL BELOW ABOVE FAR/~ Acre Value Per Value Acre Tillable 1 Tillable 2 Tilloble 3 Woodland j' Swampland FRONTAGE ON WATER Brushland FRONTAGE ON ROAD Hous~lot, o,o~ DEPTH t '~" ...... ~" BULKHEAD Total DOCK M. Bldg. Extension Extension Extension Porch Porch Breezeway Garage Patio Total ¢30 lb(3 COLOR TRIM L_ L. ~1 III I IIIIIIIillltll IIIIIIIIIIIIIIIIII 11111~111 IIIIIIIltl IFIIII IIIIIIIIIIII 1111111111 I IIIIII IIII1~1 .~!!!!!!!!-!!!! ......... !llll Foundation Basement Ext. Walls Fire Place Type Roof Recreation Roorr Dormer Driveway Bath Floors Interior Finish Heat Rooms Ist Floor Rooms 2nd Floor J ~ TOWN OF SOUTHOLD PROPERTY RECORD CARD OWNER STREET VILLAGE DIST. SUB. LOT FORMER OWNER N E AcR. RES. SEAS. VI- FARM ~'OMM. CB. MISC. Mkt. Value LAND IMP. TOTAL DATE REMARKS AGE BUILDING CONDITION NEW NORMAL BELOW ABOVE FARM Acre Valu~ Per Value Acre Tillable 2 Tillable 3 Woodland Swampk~nd FRONTAGE ON WATER Brushlond FRONTAGE ON ROAD House Plot DEPTH BULKHEAD Total DOCK M. Bldg[~ Extensio~ Extensi~ Extension I. n /o0 COL~_R Foundation Basement Ext. Walls Fire Place Type Roof Bath Floors Interior Finish He~t Rooms 1st Floor Porch Recreation Room Rooms 2nd Floor J Porch Dormer Breezeway )riveway Garage Patio Total j Dinette COLOR M. Bldg. Extension Foundation Basement Extension Ext. Walls Extension Fire Place Type Roof Porch Recreation Room Porch Breezeway Garage Patio Dormer Total Driveway Bath Floors Interior Finish Heat Rooms 1st Floor Rooms 2nd Floor Dinette DR. BR. FIN. B. ART 16 , k TOWN LAW § 267 and for the Town of ~ls to recommend the boundaries of Zoning Districts to be formed in said Town, to recommend appropriate regulations to be enforced therein, to make a preliminary report thereof, to hold public hearings thereon and to thereafter submit its full and final report, and WHEREAS, said Zoning Commission, pursuant to the provisions of Section 266 of the Town Law of the State of New York, has heretofore submitted and filed its preliminary report and did thereafter hold __is__ public hearings thereon, to wit, and WHEREAS, several persons appeared at said bearings not to object to said preliminary report of the Zoning Commission but to make suggestions with reference to changes in certain boundaries of commercial districts, and WHEREAS, said Zoning Commission has now submitted and filed its full and final report with this Board, NOW, THEREFORE, be it RESOLVED that this Town Board shall hold a public hearing in relation to the new Zoning Ordinance for the Town of __is of which a proposed form has been recommended by said Zoning Commission at the Town Hall in the Town of ~9__, ~o County, New York, __2~__ Road, on the __23__ day of '~__, 19_2% at __2~__ o'clock __es__M, __27__ [Eastern Standard Time], and it is further RESOLVED that pursuant to thc provisions of Section 264 of thc Town Law, the Town Clerk cause a notice of the time and place of such public hearing to be published in ~___, a paper of general circulation in said Town at least once on or before the __2s__ day of __zo , 19_z~_ Seconded by Mr. ~z__ and duly put to a vote which resulted as follows: AYES: __~ NOES:__s~ [Adapted from form supplied through the courtesy of William G. Easton, Esq., Rochester, N. Y.] § 267. Board of appeals 1. Such town board shall appoint a board of appeals consisting of five members, shall designate its chairman and may also provide for compensa- tion to be paid to said members, experts, clerks and a secretary and provide for such other expenses as may be necessary and proper, not exceeding in all the appropriations that may be made by the town board for such board of appeals. No person who is a member of the town board shall be eligible for membership on such board of appeals. Of the members of the board first appointed, one shall hold office for the term of one year, one for the term of two years, one for the term of three years, one for the term of four years, one for the term of five years from and after his appointment; provided, however, that such town board may, by resolution, increase the number of members of the board to seven, and provide for their compensation and thereafter such additional members shall be first appointed for terms of two and four years respectively. Their successors, including such additional members as may be appointed by the town board, shall be appointed for the term of five years from and after the expiration of the terms of their predecessors in office. If a vacancy shall OCcur otherwise than by expiration of term, it shall be filled by the town board by appointment for the unexpired term. The town board shall have 111 § 267 CONSOLIDATED LAWS SERVICE ART 16 the power to remove any member of the board for cause and after public hearing. All meetings of the board of appeals shall be held at the call of the chairman and at such other times as such board may determine. Such chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of such board shall be open to the public. Such board shall keep minutes of its proceedings, showing the vote of each member upon every question, or if absent or failing to vote, indicating such fact, and shall also keep records of its examinations and other official actions. Every rule, regulation, every amend- ment or repeal thereof, and every order, requirement, decision or determina- tion of the board shall immediately be filed in the office of the town clerk and shall be a public record. 2. Such board of appeals shall hear and decide appeals from and review any order, requirement, decision or determination made by an administrative official charged with the enforcement of any ordinance adopted pursuant to this article. It shall also hear and decide all matters referred to it or upon which it is required to pass under any such ordinance. The concurring vote of a majority of the members of the board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant any matter upon which it is required to pass under any such ordinance or to effect any variation in such ordinance. Such appeal may be taken by any pemon aggrieved, or by an officer, department, board or bureau of the town. 3. Such appeal shall be taken within such time as shall be prescribed by the board of appeals by general~ rule, by filing with the officer from whom the appeal is taken and with the board of appeals a notice of appeal, specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken. 4. An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board of appeals, after the notice of appeal shall have been filed with him, that by reason of facts stated in the certificate a stay, would, in his oPinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of appeals or by a court of record on application, on notice to the officer from whom the appeal is taken and on due cause shown. 5. The board of appeals shall fix a reasonable time for the hearing of the appeal or other matter referred to it and give public notice thereof by the publication in the official paper of a notice of such hearing, at least five days prior to the date thereof, and shall, at least five days before such hearing, mail notices thereof to the parties and to the regional state park commission having jurisdiction over any state park or parkway within five hundred feet of the property affected by such appeal, an~d~sh_~[ll decide the same within sixty days after the final hearing. Upon the hearing, any pa~gyy may ap~'fi~ir in person or by ~ig~nt or by'-attorney. The board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and shall make such order, requirement, 112 gRT 16 TOWN LAW § 267 decision or determination as in its opinion ought to be made in the premises and to that end shall have all the powers of the officer from whom the appeal is taken. Where there are practical difficulties or unnecessary hard- ships in the way of carrying out the strict letter of such ordinances, the board of appeals shall have the power in passing upon appeals, to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures, or the use of land, so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done. 6. Upon motion initiated by any member and adopted by the unanimous vote of the members present, but not less than a majority of all the members, th~ board of appeals shall review at a re-hearing held upon notice given as upon an original hearing, any order, decision or determination of the board not previously reviewed. Upon such re-heating, and provided it shall then appear that the rights vested prior thereto in persons acting in good faith in reliance upon the order, decision or determination reviewed will not be prejudiced thereby, the board may, upon the concurring vote of all of the members then present, reverse, modify or annul its original order, decision or determination. 7. Any person or persons, jointly or severally, aggrieved by any decision of the board of appeals or any officer, department, board or bureau of the town, may apply to the supreme court for review by a proceeding under article seventy-eight of the civil practice law and rules. Such proceeding shall be instituted within thirty days after the filing of a decision in the office of the town clerk. The court may take evidence or appoint a referee to take such evidence as it may direct and report the same with his findings of fact and conclusions of law, if it shall appear that testimony is necessary for the proper disposition of the matter. The court at special term shall itself dispose of the cause on the merits, determining all questions which may be presented for determination. 8. Costs shall not be allowed against the board of appeals unless it shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from. 9. Ail issues in any proceeding under this section shall have preference over all other civil actions and proceedings. 10. If upon the hearing at a' special term of the supreme court, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. HISTORY: Add, L 1932, ch 634, with substance transferred from § 349-u, amd, L 1933, ch 751, L 1946, ch 897, L 1946, ch 781, L 1947, ch 70, effMar 6, 1947, L 1947, ch 604, § 2, eft Apr 3, 1947. Sub 1, amd, L 1955, ch 575, L 1956, ch 913, §2, eft July 1, 1956. MEMORANDA, Second Dept., July, 1965 597 16 In the Matter of CO~T~Z o~ NASSAU, Appellant, Relative to AcquSzing Title to Real Proporw for North Hemps~ead Tu~p~e. 1070 BOUL~D CORPORATIOn- et al., Responden(s.--In a condonation proc~ng, ~e Cd~ty of Nasmu appeals from so much of an order of the Supreme Co~, Nas~u Count, entered June 9, 1964 upon rear,merit, ~ adhered to court's oS~nal decision an~ again denied the countfs motion to va~ prior vest~g ordem of said court, entered, respoc~vely September 28, 1961 and December 27, 196L Order, ~sofar as ap~ed from, ~med on the op~io~ of ~e co~t below, wiffi costs ~o the r~ponden~ filing separate brie~. ~eldo~ p. J., Ugh~: .ChMs~, ~ab~n an~ Benja~, J~., concur. 17 In the Matter of Gu.~s~ Ho~s~ et hi., Appellants, v. PA~ TORteX e~ al, ~nstituting the Zoning Board of Appe~ of the To~ Riverhead, et al., Respondents. In a proceeding:. (1) for a dedarato~ ~dg- men~ ~l~g the determination of ~e ~spondent Zon~g Board of Appea~ of ~e To~ of Riverhead and ann~ling the special excep~on pe~t ~ued p~ant ~o such determination to the r~pondent Schmel~r for ~e ~tion ~d operation of a mobile home park ~d camp; and (2) to renew ~d~ ~cte 78 of the CPLR the said detestation, ~ vacate it~ and to d~ the bo~d to open petitioners' default end ~nt ~hem a he~g in the event speeial exception permit is not declared n~l, ~e petitione~ appeal from a jud~en~ of the Supreme Court, St~olk Cowry, entered November 25, 19~, whi~ d~sed the petition. Judgment reversed on the law ~d the ~thout ~s~, and protecting re,trod to ~e Special Tern for the p~p~ (a) hol~g a hearing on the issu~ as to ~ne~er the ~spondent Schme~er ~ the property ~ suit or was duly and pr~erly author~ed by the o~er to an application for the special exception ~t; and (b) m~g a dete~a- fion de ~vo on the basis of t~ proof a~dueed. F~d~ of fac~ which ~y be ~consistent hero,th are reve~e~ and new ~dings are ms~e as here~. The new dete~nation, whether i~ finally declares the spec~ exception pe~t ~ be valid or ~valid, will depend upon the proof as to saidown~Mp or au~ho~ty. Under the zon~g ordinance ~d un6er ~b~ion 5 of ~on 267 of ~e Town Law, the petitlonex~ w~e not entitled to pemon~ no~ · e pdblie hea~g on the applieatlon for ~e special ex,priori pe~t (~a~ : o~ Gaza~ v. Corbett, 278 App. Div. 953~ ~d. 304 N. Y. 920, mo~. ~ ~end re~ffi~ g~ted 305 ~. Y. 693, ce~. dcm 346 U. S. 822; ~. Otti~g~ Ar~ Real~y Co., 257 N, Y. 371; Siegel v. L~site% 6 A D 2d 879); upon ~e papem and proof before the board ~d ~e hspeefion by ~l .- ~le~e of members of the board, the boar~ was j~t~ed h ~n~g application for ~e special exception p~fit (cf. Matte~ of 5yossei C~p. v. ~ehlimm, 1~c 2d 10, 11: mo& on other ~oun&~ 4 A D 2d Ma~er of Family Gonsultatlo~ aery. v. Ha~ar5~ 14 Mist 2d 194; Matter of L~y' . v. Board ~f ~. & Appeals~ 267 N. Y. 347). Wh~e a zo~g b~d of ~ ~ ~kpp~eafion for a reh~g whm new ~e~ ~ pr~ ~g ~Z~pee~ of the ease (Ellsw~ Realty Co. v. Kr~me% ~8 App. 8~),~e 'bo~d;;~-~o~ requ~ed to ente~ or ~ant the app~on for a ~.~o~ Law~ ~ 267, subd. 6). W~le the cla~s as to the o~p of ~e prope~, pms~ted by thc petifieners to the board in ~ek ~e~ ~or a reopening of ~e matter and for a hear~g, wo~d have 5~6~ a · ~open~g o~ ~e ~tter and a new hea~g ~ to ~e 9wnemhip o~ au~ of ~e ~a~ndent Sehmelzer, the bo~d ~d the statutow ~ght to dee~e to r~p~ the ~t~. The fac~ presented by ~e petifione~ to ~e h~ ~ek gpplieatio~ to ~e bo~d for a ~op~g of ~e mutter and for a ~'~' ~e fach presented in the petition here~ ra~e a serious doubt ~e~ ~e r~pondent Schme~er~ who app~ed for ~d ob~ the ~e~ 190 71 MIS(~ELLANEOUS REPORTS, 2d SERIES clearly shows that plaintiff never signed such an instrument of abandonment. The ~laintiff shrill be vested with title to all ]and bounded N. by Drive, E. by the Harten lot, S. by Goldych and W. by Kline. ~ne wmster~ly line shall be parallel to the easteTly line and west ~f ~:tkree~b~y:garage to include its roof over-hangs. It is clear that Z]lei~rol~ty that was covered by the unpaid tax assessme,~A and Sold-at the tax sale and deeded to the plaintiff is the prop~ erty (Ieseribed above. The description in the .tax deed is insufli- eient to ic~entify ~he westerly boundary of the property eon- veyed but if the description in a deed needs construction, it is thed~.v 9f the eoux. t to put itself in the position of the parties at ~;]l~me :~he ~onvey~nce was made~ and, in the light of the surrdunding eirc~nnstances, ascertain and put into effect very ~g which the parties proposed to do. (Horto~ v. Niagara, Lo¢]~p~rt a~d O*~tario Power Co., 231 App. Div. 386.) A doubt- ful expression con~]-pd in a conveyance must always be con- ~true~l most favorably to the grantee (Blac]~ma~ v. 142-1~_ Y.~ 555, 562). In the ease of Goff v. Sk~ltis (26 N Y 2d 240),:~referred to above, the Court of Appeals held that the tS~ assessment on which, tax deed was based and _which was..errone~q~ in several respects, including both compass directions of boau- dar~ llneS'~a~d~q~t~ty of land assessed, but which becaus~ df ~e~ren~es~to public lines of towns led to conclusion that land ~iis-s~Ssment ~0j.nl.d ". only be" the land in dispute, com-~ plied wZth ~equir~dn~. of statute that description permit erty:~o~b~ide~nt~.with reasonable certain~y. The prop~ in ~h**~eaZb~e~fore 't~he court includes the lot and the three-b.a~ ~__ dsmra~an ~s~'~-uft~en~ .... to ~dentify t,e p pro erty with reasonab]~ .-~Tu~me~t~g~'_~a~.ted to .the plaintiff as demanded in h~s con~ pl~n~.th..;~st~ and ~sbursements, and defendants', answ~,. co,.~..~c~¥and zffirmative defense are deined m toro w~ of New York, et 0~ Variance by · ommenCement of court proceedings 200 W. 79TH ST. CO. v. GALVIN [71 Miss 2d 190] 191 its determination are interested parties in present preceeding to a~nul determination ,to reopen and in companion action fo~ injunction and are per- mitte~ to intervene-~ determination of Board [to reopen is ~. ReSpondent ~oard of Standards and Appeals granted to peti~0ner a v~rlan.~e ~. ~e~ff~n with i~s ~lan~'fo~ Co~stru~c~n of an ~parf~en~ b '_u~.~di~g. ~ Boa~d'lae~ed owe~ tO reo en the variance in th~ absense of new eye,lense, alger artxe~e 78 CPLR p~oceedmgs t~ re~ne~ ~ts or]gma~ de%er,~atiOn.were sommen~ed. The fast that issue had not been ~oined in the article 78 proseed- in~g~.wa~ o£ no sensequense' nor did the subsequen~ voluntary dlseontihuauee o~ thesis proceedings operate retroaetlvcly to valldste the Board's act[~nsfalbelt ~'~opers there~n dlscon~nued because of ~he Board's determination to r~pen. ~b[~vei'~ ~lie Board ns a ~uasi judicial body has no power to review .i~ own ~eslsions and violated its own rules in doing so. The appropriate rem&~y for ~.o~n~eved par~ is court renew which h~s now been aborted by the.Bbarcl's z2. The p~esent proceeding is to annul the determination of the .B. oa~. reope .n~.g the application for variance. A companion action for an m3unstmn mto_~ .en~°m tl~e Board.- Tenants on the site, who d~scontinue, d th proceeding to revi.e~w the ~t .~f the vat,nsc upon the Board's reopening of the application ~aye .an ~est in this proceeding ~u~d action. They may be adversely affected By the ~Udgment. Their motions to intervene are granted. .3. Since the determination of the Board to reopen is arbitrary, it is annulled. ~ Eise.~ber#. Weiss ~ Ross (Daniel Eise~be~# and Stephe~ ~Ross of c0uhsel), for petitioner. J. Lee Ra~ki~, Corpo~atlo~ (S~fo~d L Freed~na~ of counsel), for respondents. M. James Spitzes, J~., and ~Vo, lf ~ Alle~ for intervenors. · A~oLv L. F~, J. Motions numbered 139, 140, 141, 202 and 2.03, on the September 16, 1970 Motion Calendar are considered and disposed of jointly. Plaintiff, in an action f.or a permanent injunction, (Inde~ No. 13512/70) moves (No. 141) for an injunction pendents lite to restrain defendant Board .of Standards and Appeals (" Board ") from reopening the Board's prior determination granting plain- tiff's application for a zoning variance. ; Community Action Inc. (" .Community ") and several tenants of the subject premises move (No. 202) for an order pursuant to CPLR 1012 and 7802 for leave to intervene as parties defend- ~.nt in rids action. Simultaneously with the commencement of the in~unction act[0n, plaintiff instituted an article 78 proceeding (Index No. 13513/1970, motion No. 140) to review and ~unul the Board's determination to reopen its prior order granting plaintiff's application for a variance. Defendant Board crops-moves in that proceeding (motion No. 139) to dismiss the petition pursuant to CPLR 3211 (subd. iai, par. 7). Community and several ten- ants in the sub,est premises move (motion No. 203) for leave 192 71 MISCELLANEOUS REPORTS, 2(1 SERIES intervene in the article 78 proceeding, on the same basis as their motion in the injunction action. Plaintiff, owner of several contiguous parcels of property on the west side of Manhattan, desires to construct a new multi- story apartment dwelling. Present zoning would permit plain- tiff to construct a 15¥2 story apartment dwelling, with a floor area ratio of 9.75 feet. Hnwever, plaintiff, alleging that the existence of a subsurface water condition would considerably add to the cost of constructing a new building, applied to the Board for a variance to permit the construction of a larger build- ing with a floor area ratio of 11.1. Before the Board, plaintiff contended that the construction of a smaller structure would not yield a sufficient return on plaintiff's investment, because of the added cost of constructio~ due to the subsurf~e water condition. The Board held public hearings on plaintiff's application on April 14, April 29 and May 12, 1970. Evidence was purportedly submitted by plaintiff showing the existence of the alleged sub- surface water conditions. Plaintiff's application was opposed by the Department of City Planning of the City of New York. On May 12, 1970, the hearings were concluded and the Board unanimously adopted a resolution granting plaintiff a variance. However, on June 11, 1~970, two independent article 78 pro- ceedings were instituted to review and annul the Board's deter- ruination. One was brought by Community, the other by eer- rain area residents. On the same day (June 11, 1970), f~he Diree- tot of the City Planning Commission requested by letter tha¥ the Board reopen the hearings on plaintiff's application for ~ variance. On July 14, 1970, the Board notified plaintiff that' on motion of the Board'.s chairman, the Board would hear the application to reopen at a hearing on July 22, 1970. The chair- man of the Board was a new member, appointed to replace its former chairman, who had presided at the original disposition. At the hearing, the Board voted to reopen and directed plaintiff to submit additional evidence as to the subsurface water condi- tion, in accordance with the request of the director of the City Planning Commission. The present action is to enjoin defend- ant Board from reopening the hearing and the article 78 proceed- ing asks ~he court to review and annul the Board's determination to reopen. The Board was without jurisdiction and lacked po~er t~' · reopen the application for a variance because the two article ?~ proceedings to review its original determination were then pen~- lng in this court. The article 78 proceeding "had removed the whole proceeding to [the court's] jurisdiction and the power of 200 W. 79TH ST. CO. v. GALVIN [71 Mist 2d 190] 193 ~he board of standards and appeals had thereby been termi- nated.'' I Matter of R£~ker v. Board Of Std,. ~ Appeals, 225 App. Div. 570; Brause ~alty v. Glazs, l~. ¥. L. J., Sept. 18, 1969, p. 2. col. 4). The Board has no power now to reopen, while the present article 78 proceeding is pending. The fact that issue had not been joined in the prior article 78 proceedings is of no consequence. ~or did the subsequent voluntary discontinu- anoc of those proceedings operate retroactively to validate the Board's a~tions, albeit ~he petitioners discontinued because o£ be Board's determination to reopen. The Boaxd not only ae~ed without jurisdiction while the article 78 proceedings were pemding, it also ignored well settled salu- tory principles of law ~rmiting its power, and violated its own ,'ales. The Board and others like it are quasi-judieial bodies ~ot empowered to review their own decisions by vacating, rescinding or altering t~em when made, unless there is a clear showing oi newly discovered evidence, or a new application on i new plans or differemf facts. (Ri&er v. Board of S~tds. ~i Appeals, supra; People ex tel. Swedish Hosp. v. Leo, 120 Misc. ! 355, affd. 215 App. Div. fi96; Matter of Reed v. Board of Sta~d- ~rds ~ Appeals, 138 M~.~. 187, affd. 230 App. Div. 21, affd. 255 -~. Y. 126: Tow~. of C~reece v. ,Smith,, 256 App. Div. 886; Ells- ~orth Rea, lty Co. v. K~,a~ner, 268 App. Div. 824; see Matter of Co/l/~s v..Board of ~q~z. ~ Appeals, 253 N. Y. 594; M(~ter of :ffvGarry v. Walsh, 2L~ App. Div. 289.) ~ae last cited ca~e points out the dangers ~herent in reconsideration on the same facts where the pers~el of-the Board ha~ changed in the interim, a~ it did here. Although these cases deal with differing statutes ~d rules and warying fact patterns they clearly recog- nize the ~eed for fin~tv in determluations of quasi-judieial bodies as a well defined ]i;n~tation on their power of self review. This requirement is ~'~flected in the Board's own Rules of Pro- eedure. Article I-V (suJbd~ 1, 4, 5) provide: "1. ~ final dete~ -,,,~-~tion of an application or appeal before the Board shall be in tJae form of a resolution either reversing, varying or modifyin. ' g t~e order requirement or decision''~. :' "4. No request for ~ rehearing will be granted unless Sub- stantlal ~ew evidence be submitted or an application be filed Under a ~fl'erent provision of the law." ;i. "5. The Board may, on the motion of any comm;ssioner, review any decision th,~t it has made and may reverse or modify such dec. sion but no s-ach review shall pre~udlce the rights of any peri-on who has fm good faith acted thereon before it is reversed or modified." 194 71 MISCELLANEOUS REPORTS, 2d SERIES The record is clear that the reopening was not based upon the submission of new facts or to correct an error or irregularity with respect to the Board's prior decision in granting plaintLff'z application for a variance. Although the Board contends that it proceeded to reopen its prior decision under article IV, sub- division 5, on motion of its chairman, on the ground that '~ it con- sidered the record incomplete," the return establishes, as stated in the Board's own minutes, that the decision to reopen was based upon the letter application of the director of 'City Plan- ning, who offered no new evidence, as required by article IV, subdivision 4 of the Board's rules, and it was he who sought the rehearing. Moreover, the only party required to produce new evidence was the petitioner who was directed to preduee addi- tional evidence as to the alleged subsurface water condition. This amounted to a prior determination that the Board had acted on insufficient evidence in its original decision and that petitioner would be required to buttress the prior decision of th, e.B,o .a.rd by,a, ddi. ti. onal evidence. This is precisely the procedure wmcn ~ne aumor~t~e.s condemn as violative of all standards of due process and fair play. The appropriate remedy for tI~e director of City Planning, or any other party aggrieved by the Board'~ original determinhtion, was to seek court review, ~wtdeh has now been aborted by the Board's action. The~ document.s' ~ps~an.d__o~ther data in~odue.~ at the reopening'hearing on y. zz, 1~¥0, were either considered by the Board at the pri~ hearings or was material which, was available and therefore died not constitute pre~iously unavailable evidence. _ , Although the petitioner has not ~hown that review prejudice "its rights because it allegedly" acted in good faitt~ ~' ~ on the basis of the original determination (Board ru~e~ ~* r~ subd. 4; lgew York City Charter, § 666, su~d. S), this i~'n-oY'con'~:-' trolling. ~he Board had .no new evidence on which to proceed under subdivision 4 and was without jurisdiction to act under subdivision 5. - -~.~ The oontention~ and rights o~ . b~gn~ the site tenants have con. sidereal, ttowevdr, the court is w~thout power to ~id. }.he~ ~:.~.~.. ~ this juncture. They voluntarily dlseontinued their axtxcle proceeding to review the Board's original dot rnnnauon. Although they did .so in r.elia.n? on the Board'.s illegal decision ~ to reopen the hearing, this d~d not ocnfer retroactive jurisdic- tio. on t, %Bo r.d. The o iginal determination of the is no~ now oexore tl~e court for review. As statutory tenants in the subject premises, they have an interest in the outcome of this proceeding. The determination granting the variance might ulti- ~ 200 W. 79TH ST. CO. v. GALVIN [71 Misc 2a 190] 195 mately lead to their eviction. Although they may be afforded such pro~.eetions as are available under the Rent Control Laws, it does not follow that they do not have a legally cognizable interest in the subject litigation. Where an application to intervene is made pursuant to CPLR 1012, it must be shown that the rights of the proposed intervenors are not adequately represented and that they may be bound or adversely affected by the determination. Here plaintiff is.not seeking any relief against the prol~sed interven0rs. However, they may be adversely affected by the judgment. Intervention under CPLR 7802 (sub& Id]) is snowed as to "interested per- sons." Both because they are site tenants and beeanse of the circumstances under which their prior article 78 proceeding was terminated, it is found that they are "interested persons" and their motions to intervene are granted. However, the motion of Commn*qty to intervene is denied (Matter of Manor Woods Assn. v. Randol, 29 A D 2d 778; Matter of Lido Beach C/vic Assn. v. Board of Zoni~# Appeals, 13 A D 2d 1030). P!aindff's motion for a temporary injunction and its eompan_- ion art[ele 78 proceeding are both aimed toward obtaining the same result. lYnd~ such circumstances and where it is demonstrated that the determinations of the administrative body are arbitrary, eaprieions and contrary to law, the appropriate remedy to be ofillzed is not injunetlve rebel but to annul such determination (see El~.sworth Realty Co. v. Kraraer, 268 App. Div. 824). : Accordingly, in the action for an injunction (Index No. 13512/70): Motion No. 141 for an injunction pe~ente llte is denied; Motion No. 202 to intervene is g'ranted as to the site tenants and denied as to Community. In tk~e article 78 proceeding (Index No. 13513/70): Motion No. 140 to review and annul the Board's determination to reopen its prior order is granted and the Board's decision is 5[otSon No. 139 to dismiss the article 78 proceeding' is denied. 5Iot~on No. 203 to intervene is granted as to the site tenant~ and denied as to Community. In the event the Boaid should, hereafter undertake to re0pe!i or re,flew its original determination on sufficient 'legal grounds, it is 65rected to make a record wl~ich will make appropriate review possible and to permit the site tenants to be heard. LAW OFFICES JAMES BITSES Robert W. Gillespie, Board of Zoning & Appeals Town Hall, Southold, New York. 11971 Re: Mattituck Inlet Watch Dogs, etal and Mat-A-Mar Marina. Dear Mr. Gillespie: After speaking to you by telephone this morning at about 9:30, I took your suggestion and called Mr. Tasker the town attorney, concerning the question of public notice on the above appeal. Mr. Tasker advised me that in his opinion no public notice was necess- ary and that the Zoning Board would confine its deliberations solely to the written matter submitted by me. I may be wrong but I believe this is in error, t believe that public notice is an absolute essential in order to give members of the public an opportunity to come forward and testify as to this zoning matter in their own behalf. In short, I do not represent all the interested parties. All the interested parties comprises all the people in Southold Town. Therefore it is my contention that by failing to give public notice you have debarred the public from coming forward in its own right and introducing new evidence - which they have every right to do. By limiting your deliberations to my written petition you are not giving this matter the fullest scope that the statute requires. I would respectfully suggest that any decision you make on August 17th (tonight) is defective in this respect and is a nullity. I therefore urge you to advertise this matter as per your normal procedure so that if there be any among the general public who have evidence to present or information to volunteer in their own right, they be given an opportunity to do so. CC: Robert Tasker, Esq. Town Attorney Greenport, N. Y.~ 11944 itses LAW OFFI[~ES JAMES BIT-~ es July 5, 1978 Soi~lhold Town Board ~ Appeals Southold, New York. 11971 Re: Apl)eal of Matt-A-Mar Decision Gentlemen: I have this day received your letter dated June 30, 1978 advising me that there might be a time slot available for me at the July 6th hearing some time around 10 pm. I had previously been advised verbally that the calendar of the July 6th meeting was overloaded and that my appearl would be heard at the next meeting near the end of July. Guided by such advice I have advised several witnesses that they need not be in Southold on July 6th but that the hearing would be held in the last week of July at which time I would require their attendance. On one days notice I cannot recall these witnesses since many of them have left the town and gone upstate for various purposes. I therefore respectfully request that the above appeal be set down for hearing on a date cer~tain during the last week of July. Yours truly, ' xxxx 1802 June 30, 1978 Mr. James H. Klein, President Brower's Woods Association, Inc. Mattituck, New York 11952 Re: Appeal of Matt-A-Mar Decision Dear Mr. Klein: Please be advised that in response to your letter of June 25, 1978, addressed to the Board of Appeals that we have notified Mr. Bitses of the Board's willingness to reassess the recent action in connection with Matt-A-Mar Marina at approximately 9:45 P.M.on July 6, 1978. A copy of the letter to Mr. Bitses is enclosed. A copy of the Zoning Ordinance is obtainable from the Town Clerk's Office at a cost of $5.35. Yours truly, RWG:bc Enclosure ROBERT W. CHAIRMAN GILLISPIE, JR. xxx 1802 XXXXXXX%gXX June 30, 1978 James Bitses, Esq. 3lein Street Southold, New York 11971 Re: Appeal of Matt--A-Mar Decision Dear Mr. bitses: In response to your "Notice of Appeal" dated June 20, 1978, please be advised that ~hen the ~oard meets on July 6, 1978, there will be a full schedule of hearings lasting until 9pprox~aately 9:45 P.~I. However, we will be able to review any new evidence you have at that time with a v~uw to deter- mining wh~her or not th~ ~oard will rehear Marina, Inc., Appeal No. 2419, which %;as acted on June 1, 1978. The Board of Appeals shall review at a re-hearing held upon notice given where any order or determination not previously reviewed. It should be pointed out that whatever evidence is presented should be persuasive enough to justify a rehearing. It is necessary in order to rehear a matter to majority of all members of the }~ard favorable rehear. Yours truly, to a motion to ROBERT W. GILLISPIE, JR. Chairman BRFIWER'S WOODS ASSflr. IATION, MATTITUI~K~ LONI3 IBL.AND~ N, Y. INC. Mattituck, N.Y. June 25, 1978 Zoning Board o£ Appeals Southold Town Hall Main Road Southold, N.Y. 11971 Dear Sirs: It has come to the attention of the Browers Woods Association that the Matt-A-Mar Marina is applying £or additional variances to increase their operation on the Mattituck Inlet. We are vehemently against the grantin~ of any variances £or the Matt-A-Mar ~arina. Assurances were ~iven when the Marina first started that it would stay as a Marina and not expand into a Boat Yard. If any variances have been granted recently we would appreci- ate the Board taking steps to recind them. Changing existing laws for one or two people against the wishes of numerous taxpayers does not seem correct in our eyes. Please send me a copy of the latest Zoning Laws and the re- quirements to obtain a variance. Jam~es Hery truly yours, · Klein, ?resident OFFIP-~ RN EY TO~LD 42S MAIN ST. BREENPnRT, L. I., N.Y. 11944 June 23, 1978 TEL£PHONI=' 477-14cia Mr. Robert W. Gillispie, Jr. Chairman, Board of Appeals Southold Town Hall Southold, New York 11971 Re: Mat-A-Mar Marina Dear Bob: On June 21, 1978 the Town Clerk was served with what purports to be a Notice of Appeal and Petition of James Bitses, attorney for a group known as the Ad-Hoc Association of Mattituck Inlet Watch Dogs and the Brower Woods Association. Apparently what the petitioners are asking is to have the Board review at a re- hearing the grant of the variance to Mat-A-Mar for the sale of boats on its premises. Subdivision 6 of Section 267 of the Town Law provides as follows: "6. Upon motion initiated by any member and adopted by the unanimous vote of the members present, but not less than a majority of all the members, the board of appeals shall review at a re-hearing held upon notice given as upon an original hear- ing, any order, decision or determination of the board not previously reviewed. Upon such re-hearing, and provided it shall then appear that the rights vested prior thereto in persons acting in good faith in reliance upon the order, decision or determination reviewed will not be prejudiced thereby, the board may, upon the concurring vote of all of the members then present, reverse, modify or annul its original order, decision or determination." You will observe from Subdivision 6 that if the Board wishes to review this matter, it must adopt a resolution by a unanimous vote of the members present. The matter then should be reheard upon the same notice as required for the original hearing on the variance. If after such re-hearing the Board wishes to reverse, modify or annul its original decision, it may only do so upon the concurring of all of the Board members present. Mr. Robert W. Gillispie, Jr. -2- June 23, 1978 For your information I am enclosing herewith a photostatic copy of Section 267 of the Town Law as well as copies of two decisions (Matter of Hoerner v. Tormey, 24 AD2d 597 and 200 West 79th Street Company v. Calvin, 71 Misc. 2d 190). You will observe from these two decisions that the courts hold that the board may only review its prior decision if there is a clear showing of newly discovered evidence. Yours very truly, ROBERT W. TASKER RWT :MY Enclosure s 14 Complaint. SU1 REME COURT, SUFFOLK COUNTY. [SAME TITLE.] Plaintiffs above named by Lipetz & McNalty, their at- torneys, complaining of the defendants allege: 1. That thc defendants Lester M. Albertson, Ralph W. Tuthill, Henry A. Clark, Howard Valentine, Louis M. Demarest and E. Perry Edwards are the duly elected members of the Town Board of the Town of Southold, hereinafter referred to as the Town Board, and as such Town Board was m'g'anized under and with the powers and duties provided by ibc Laws of tlle State of New York. 2. That the defendant Howard Terry is the Building Inspector of 0n~ Town of Southeld and is that officer, agent or enq)loyee charged with thc duty of administering and enforcing all of the provisions of the "Building Zone Ordinance of the Town et' Sonthold" and is still acting as such Building Inspector. 3. Upon information and belief, the defendant Matt-A- Mai', Inc. is a domestic corporation and the owner of the following described premises at Mattituck, Town of Sent- bold, Suffolk County, New York: BEGINNING ail a point where the \vcstcrty line of Wickhanl :\v(mue is intersected by ordinary high water mark of Mattituck Creek. said point being' S. 28© 48' 40" E. 130 feet, mor,~ or less, from a concrete momnncnt marking the northerly extremity of said westerly line of Wickham Avenue which runs S. 28© 42' 40" E., running thence westerly and southwesterly along high water mark of Mattituck Creek to a point, the tie line, frmn said point to a point ,m the westerly line of \\rick]~am Avenue 90 feet ~. 28© 48' 40" E. from s~fid momune~t ~bove mentioned, being S. f~9© 28' I0" W. 479.16 feet; fl~nee along sa~d ordinary Ifigh wa~er mark of Mattituek Creek southwesterly and northwesterly to a point, the tie line being 8. 63© 23' 00" W. 300.79 feet; thence northwesterly along ordina~ ~gh water mark of Mattituek Creek to a point, fi~e fie line being N. 15° 19' 40~' W. 393.76 feet; thence, northeasterly along ordinary high water mark o~ Mattituek Creek to a point, ibc tie line being N. 34° 4~' 40" E. 412.04 feet; thence along other land of Baker and Van Buren tim follox~ng ~wo courses and distances as follows: (1) S. 58° 36' 10" E. 245.0 feet; thence (2) N. 65° 05' 40~' E. 216.03 feet to the wvsterly line of Wickbmn Avenue; then along thc westerly line of Wickham Avenue two courses nnd distances as follows: (1) S. 24° 54~ 20'~ E. 330 feet to a monument; ~hencc (2) S. 28° 48~ 40" E. 130 feet more or less to fl~c poin~ or place of be- ginning. 4. That fl~c defendant Matt-A-Mar, Inc., acquired title to said premises from Vina Baker and George M. Van Buren by deed dated Augns~ 13, 1965 and recorded in ~he Suffolk County Clerk's O~ce on August 17, 1965, in Liber 5802 of deeds, page 94. 5. That the plaintiffs are thc owners of certain resi- dential premises in the immediate vicinity of ~he above described premises. 6. Upon information and belief, that tim Town of Southold duly adopted a Building Zone Ordinance effective April 23, 1957, which ordinance divided the lands lying within the corporate limits of flw Town o~ Southold, Suffolk County, New York, into dis~'ic~s and restricted the uses to which the lands in such districts could be put. 16 Complaint 7. Upon information an(~ belief that at the time of the enactment of the aforesaid Building Zone Ordinance, there existed a summer hotel business use on the subject prent- ises which use by reason of the enactment of the aforesaid Zoning Ordinance beemne a non-conforming use. 8. Upon information and belief, that prior to July 13, 1965 Vina Baker and Oeorge M. Van Buren entered into a contract to sell the above described premises to the de- fendant Matt-A-Mar, Inc. subject to the Town of Sonthold changing the zoning classification of the subject premises from "A" residential and Agricultural to "B" Business. 9. That tbe subject ]/remises and the surrounding neigh- borhood are residential in character. 10. That Vina Baker and George M. Van Buren filed a petition, verified July 13, 1964, with the Town Board of the Town of 8outhold requesting a change of the zoning classification of the subject premises from A Residential and Agricultural to B Business. 11. That said petition alleged that the purchaser pro- posed to use the property for a restaurant, mctel, boat slips and marine ,lock. Thc restaurant was to be capa- ble of accommodating a "large clientele" and hoth the restaurant and the molel were to lie operated on a "whole year" basis. 12. That the propos~,d uses of the subject premises are contrary to the comprehensive zoning plan and are net in keeping with the character ot' the neighborhood or its future development and orderly growth ami such proposed uses are contrary to the general welfare o1' the eonununity. 13. That at thc time of the filing of said petition the premises owned by plaintiffs and thp premises presently owned by defendant Matt-A-Mar, Inc. were in the A Resi- dential and Agricultural District as defined by the afore- 17 Complainl said Zoning Ordinance and Zoning Map of the Town of Southold. 14. That at the time of the tiling of said petition the Zoning Ordinance of the Town of Southold provided in pertinent part: ARTICLE IIi "A" :Residential and Agricultural District SscTio~ 300---In the "A" Residential and Agri- cultural District, no building or premises shall be used and no building shall be hereafter erected or altered unless other wise provided in this Ordi- nance, except for (1) or more of the following uses: 1--One (1) family dwellings la--The conversion of any building in existence at the effective date hereof to two family dwelling when authorized as a special exception by the Board of Appeals as hereinafter provided. 2--Churches, schools, libraries. 3--Non-commercial parks, playgrounds, athletic fields, bathing beaches, bathhouses or boat houses. 3a--Marinas or boat basins for the docking, moor- lng or accommodation of noncommercial boats when authorized as a special exception by the Board of Appeals as hereinafter provided. 4--Agricultural farms, poultry farms, nurseries, greenhouses and truck gardening (does not include farms for the raising or breeding of ducks). 18 Complaint 5--Clubs, frate~:nity houses and golf courses, ex- cept where the principal activities are carried on as a business. 6--Railway passenger stations. 6a--Public utility buildings, structures, or fa- cilities, when authorized as a special exception by the Board of Appeals as hereinafter provided. 6b--Cemeteries and the necessary incidental structures when approved as a special exception by the Board of Appeals as hereinafter provided. 7--Accessory buildings, including one (1) private garage, when such accessory buildings are located in the rear yard, or a private garage within or at- tached to the dwelling. 8--Uses customarily incidental to any of the above uses when located on the same lot and not involv- ing the conduct of a separate business. This shall be understood to include the professional office or studio of a doctor, dentist, teacher, artist, archi- feet, engineer, mnsician, ]a~vyer, magistrate or prac- titioner of a similar character or rooms used for home occupations including dressmaking, millinery or similar ha~dicrafts, Provided that the office, st~dio or occupational rooms are located in a dwell- ing in wbicb the practitioner resides and in a building accessory thereto, and Provided further, no goods are publicly displayed on the premises and no sign or advertisement is shown other than a sign not larger than two (2) sqnare feet in ~otal area, bearing only the name and occupation (words only) of the practitioner. 9--The sale at retail of farm, garden or nursery products produced or grown on the premises or of 19 Complai~tt animals raised on the premises. One (1) adver- tising sign, eitl~er single or double faced, not larger than four (4) feet by six (6) feet in size, advertis- ing the sale of farm, garden or nursery products produced or grown on the premises or of aniraals raised on the premises. ARTICLE IV "B" Business District S~(n:~o~ 400--In the "B" Business District, no building or premises shall be used, and no b~lfld- ing shall be hereafter erected or altered unless otherwise provided in this Ordinance, except for one (l) or more of the following uses: 1--One (1) family or two (2) family dwellings; multiple family dwellings. Notwithstanding any other provisions of this Article, such dwelling when erected or altered in a "b" Business District shall comply with the provisions o~ Section 301 to 308 inclusive of this Ordinance. 2--All per~nitted uses as outlined in. "A" residen- tial and Agricultural District. 3--Hotels, motels, motor lodges, boarding houses and similar establishments. 4 Hospitals and clinics, other than those for in- fectious or contagious diseases, or insanity or men- tal diseases or liquor or drug addicts. 5--Offices, banks, financial institutions, telephone, telegraph, gas or electric business. 6--Stores 2O Gomplaint 7--Places of amusement when approved as a special exception by the Board of Appeals as here- inafter provided. 8--Restaurants, bakery shops, confectionery or ice cream shops or factories. 9--Public garages, motor vehicles, service sta- tions and parking lot areas for the storage of new or used motor vehicles for sale or hire, when ap- proved as a special exception by the Board of peals as hereinafter provided. 10--Storage houses, stables, express carting or hauling offices or fahous, icc manufacturing, yards for storage ami sale o~ coal and hnildlng materials. l~--Newspal)cr off]cos or joh printing, hook bin- derics, laundries, dry cleaning or dyeing, nndertak- lng establishmcnts. 1~ £~am~zry, bu~ter or cheese making, milk bottling or distributing stations. 13--Shops for carpcaters, plumbers, blacksmiths, upholsterers, (!h'ctricians, tinsmiths, paper hang- ers, painters, tailors, dressmakers, millinery shop, shoemakers, ,icwelcrs, watch and clock makers, op- ticians, musical or scientific instrmnents, pet ani- mals and other trades or uses of a similar grade. 14~Conunc,'cial docks, marine fuel docks, piers, ferry slips, ferry houses, fishing stations, boatyards, boat storage yards, boat storage basins, marinas, mooring piers, bus stations and terminals. 15--Any manufacturing, fabricating, treating, con- verting, finishing, altering or assembling, in con- nection with the aforesaid permitted uses and which is a necessary incident and accessory to the pre- paration of articles to be sold 1)rimarily on tl~e premises or to the performing o[ a service pri- marily for the residents of the neighborhood. 16--Accessory use on the same lot with and eus tomarily in&dental to any of the above permitted rises. 17--The stripping of ]and to obtain sod or to se- cure satisfactory top soil for grading or other poses is permitted, providing material so obtained is used on the inunediate premises. If a building is being constructed or altered materials exeawtted in connection with such construction or grading on the premises may be sohl however, Cement block manufacturing, and natural production uses such as lbo excavation for sale of sand, gravel, clay, shale or other natural mineral deposit are pcrmitted only as a special exception by the Board of Appeals. 15. That pm'suant to thc Town Law or' the State of New York, the Town Board referred said petition to the Planning Board of Southold Town, which Planning Board approved said proposed change of zone by letter dated July 27, 1964. 16. That thereafter thc Town Board caused a notice of public hearing to be duly Imblishcd and posted accord- ing to statute, which public hearing was held on August 27, 1964. 17. That thereafter by order dated Octoher 27, 1964 thc Town Board of the Town of Sonthold ~isappr. oved the petition for a change of zoning classification of the sub- ject premises from A Residential and Agricultural to B Business. 18. That Vina Baker and George M. Van Buren filed a petition, verified April 24, 1965, with the Town Board of Complainl the Town of Southold r~questing a change of the zoning classification of the subject premises from A Residential and Agricultural to B-2 Business. 19. That the subsequent p~tition was identical with the original petition which had been denied except that a copy of the Army Corps of Engineers' approval of the proposed dredging was annexed and the requested change was from A Residential and Agricultural to B-2 Business. 20. That after a public hearing held on June 1L 1965, the Town Board of the Town of Southold by order dated ..~t~¢ ~t~t~,~f-~5, granted the relief demanded in thc petition namely, change of the zoning classification of the sub: jeer premlse~Resid~ ~d- ~r~u~-~o B;2~ess~ 21. That between October 27, 1964 thc date of the nial of the original petition and July 7, 1965, the date of the granting of thc subsequent petition there had been no material change in the character of the neighborhood where the subject premises are located. 22. That between October 27, 1964 the (late of denial of the original petition and July 7, 1965 the date of the granting of the subsequent petition a "B-2" Busi- ness District was added to the Building Zone Ordinance of the Town of Southold. 23. That on July 7, 1965, the date of the granting of the subsequent petition the Building Zone Ordinance pro- vided in pertinent part: ARTICLE ]iV B "B-2" Business 1)is(rict S~c~cro~ 440--In the "B-2" Business District, no building or premises shall be used and no build- 23 Complaint ing shall be hereafter erected or altered unless otherwise provided in this Ordinance, except for one (1) or more of the following uses: 1. All permitted uses in the "A" Residential and Agricultural, "M' Multiple Residence and "M-I" Multiple Residence Districts. 2. One (1) and two (2) family dwellings pro- vidcd that such dwellings comply with the provi- sions of Sections 301 to 308, inclusive of this Ordinance. 3. Multiple dwellings. 4. Hospitals 5. Clinics 6. Nursing Homes. 7. Offices 8. Banks and financial institutions. 9. Retail stores. 10. Restaurants. 11. Bake Shops (for on-premises sales). 12. Laundromats and similar establishments. 13. Tailors', dry cleaners' and milliners' shops. 14. Shoe Repair shops. 15. Jewelers', opticians', watch and clock shops and similar establishments. 16. Marinas for the docking, mooring and accom- modations of non-commercial boats, including the sale of fuel and oil primarily for the use of boats accommodated in such marina. 24 Complaint 17. Lodges, cha~ter houses and clubs. 18. Accessory uses on the same lot with and custo~narily incidental to any permitted uses and lot involving a separate business. ARTICLE III "A" Residential and Agricultural District SECT~o~ 300--In the "A" Residential and Agri- ctfltural District, no building or premises shall be used and no building shall be hereafter erected or altered unless otherwise provided in this Ordi- nance, except for one (1) or more of the following uses: 1--One (1) family dwellings. 2. Churches, schools and libraries. 3. Non-commercial parks, playgrounds, athletic riehis, bathing beaches, bathhouses or boathouses. 4. Agricult~ral farms, poultry farlus, nurseries, green}muses and truck gardening (does not include farms for the breeding or raising of ducks). 5--Tbe fo]lowing uses when authorized as a special exception by the Board of Appeals as hereinafter provided: (a) Thc conversion of any building- in existence at the effective date hereof to a two family dwell- lng (b) The erection or construction of a two family dwelling provided that the lot shall have an area of not less than twenty-rive thousand (25,000) Complaint square feet and a frontage of not less than two hundred (200) feet. (c) Clubs, fraternity houses and golf courses. (d) Stables and riding academies. (e) Funeral homes and undertaking establish- mcnts. (f) Railway passenger stations. (g) Public utility buildings, structures or fa- cilities. (h) Cemeteries and the necessary incidental structures. (i) Marinas for the docking, mooring or accom- modation of not more than six (6) non-commercial boats. 6. Accessory buildings, including one (1) private garage, when such accessory buildings are located in the rear yard, or a private garage within or attached to the dwelling. 7. Uses customarily incidental to any of the above uses when located on the same lot and not involving the conduct of a separate business. This shall be understood to include the professional flee or studio of a doctor, dentist, teacher, artist, architect, engineer, musician, lawyer, magistrate or practitioner of a similar character or rooms used for home occupations including dressmaking, milli- nary or similar handicrafts, Provided that the of- flee, studio or occupational rooms are located in a dwelling in which the practitioner resides and in a building accessory thereto, and Provided fur- ther, no goods are publicly displayed on the prem- 2(; Complaint ises and no sign' or advertisement is shown other than a sign not larger than two (2) square feet in total area, bearing only the name and occupa- tion (words only) of the practitioner. 8. The sale at retail of farm, garden or nur- sery products produced or grown on that premises or of animals raisrd on the premises. One (1) advertising sign, either single or double faced, not larger than four (4) feet hy six (6) feet in size, advertising thc sale of farm, garden or nur- sery products produced or grown on the prem- ises or of animals raised on th(, premises. ARTICLE IIiA "M" Multiple Residence District SzcT~o~ 350--In the "M" Multiple Residence Dis- trict, no building or premises shall be used, and no building shall be hereafter rerected or altered unless other wise privided in this ordinance ex- cept for one (1) or more of the following uses: 1. All permitted uses in "A" Residential and Agricultural and "M-i" Multiple Residence Dis- tricts. 2. Hotels and motels. 3. Tourist cottages (More than one [1] Tourist cottage may be permitted on a lot when authorized as a special exception by the Board of Appeals as hereinafter provided.) 4. Tourist camps, when authorized as a special exception by the Board of Appeals as hereinafter provided.) 27 Co mplai, l 5. Marinas for the docking, mooring er accommo- dation ct' non-commercial boats when authorized as a special exception by the Board of Appeals as hereinafter provided. 6. Accessory uses of thc same lot with and cus- tomarily incidental to any permitted us and not in- volving lhe conduct o1' a separate business. ARql£1A I[ll; "M4" Multiple Residence 1)isttict Szc~m~ 370--1n the "M-i" Multiple Residence I)istriet, no building or premises shall be used, and no building shall be hereafter erected or al- tc-{,d nnless otherwise provided in this Ordinance except for one (1) or more of the following uses: 1. All permitt{~d uses in "A" R.esidcntial and Agricultural Districts. 2. Dwellings designed ['or and occupied by not more than four (4) families. 3. Boarding and tourist houses. 4. Aceessory uses on thc same lot with and cus- tomarily incidental to any permitted uses and not involving a separate business. 24. That the action of the Town or Southold in imr~ porting to change the zoning classification of the above described premises from a residential classification to a business classification constituted Spot Zoning and was unreasonable, arbitrary, capricious and illegal inter alia in that it frustrated and destroyed the comprehensive planning schemes; in that it was made without reference to any overall plan and was made and accomplished for 2S ( !,mplaivt the benefit of the owner of s~id premises and not pur- suant to a comprehensive plan for the general welfare ef the community; in that the action of the Town Board in changing the zoning classification xiolated the rights of plaintiffs and others similarly situated; that the ae- tion of the Tmvn Board in changing thc zoning classifica- tion was illegal and unconstitutional in that it reduced the value of the property of plaintiffs without compensa- tion and without due process of law and said purported change of zoning classification is ineffectual, illegal and void. 25. That plaintiffs and other similarly situated will suf- fer irreparable harm and injury unless defendants are restrained from proceeding under the purported &ange of zoning classification. Wura~ronE, plaintiffs demand judgment: 1. Declaring the change of zoning elassificatim~ and atmmdment o~ thc zoning ordinam:e and zoning lnap void, nncrorceable, illegal and unconstitutional. 2. restraining and enjoining lhe defendants and em.h o~ them frmn proceeding under and by virtue of the said pm'ported amendment and change to said ordinance and map. 3. restraining and enjoining the defendant Matt-A-Mar, In(:. from erecting, repairing altering, or constructing any building or structure on the aforesaid premises and from using said property for any purpose not permitted in the A Residential and Agricultural District. 4. for such other and further relief as to the Court may seem just and proper, together with the costs and disbursements of this action. LIPETZ & McNULTY Attorneys for Plaintiffs (Verified July 13, 1966.) ,lAMES BIT-~ E5 February 17, 1979 Board of Zoning & Appeals Town of Southold Town Hall Southold, NY 11971 Re: Mattituck Inlet Watch Dogs vs Board of Zoning & Appeals Index No. 78-16377 Gentlemen: Enclosed please find Notice of Appeal in the order of /[udge Lester E. Gerard dated February 7, 1979 in the above matter. Yours truly, James Bitses Attorney for Petitioner JB: si SUPREME COURT OF THE STATI~ OF NEW YORK COUNTY OF SUFFOLK TH~ AD HOC ASSOCIATION OF MATTITUCK INLET WATCH DOGS and the BRO~ER WOODS ASSOCIATION, NOTICE OF APPEAL Oetittooet-s, Index Nb 7~*-16377 -against- BOARD OF ZONING & APPEALS OF T~IE TOWN OF SOUTHOLD and the COMML!~IO~I~RS THEREOF lndiviahlally as Members of said Board of Zoning and Appeals, Respondents. SIRS: PL~AS,E TAKE NOTICE that the petitioner in this proceeding hereby appeals to the Appellate Division of the Supreme Court, Second Judicial Department, upon the law and upon the facts from a decree rendered the Honorable Lester E. Gerard, $. S.C. dated ~ae ?th day of Februa,~y, 1979 dismissing Petitioner's Artical 7~1 proceedin~ and f~'om each and every part thereof as well as from the whole ~'~ereof. Dated: To: Southold, New York February 17, 1979 Yo~lrs, etc, JAMES BITSES, ES~. Attorney for Pet/tione~ Main Road Southold, Ne~ York 11971 (516) 765- 5700 Smtth, Ftnkelstetno Lundberg, Crimmons and Yakaboski, 456 Oriffing Avenue Rivel'heed, New York 11901 BOARD OF ZONING AND APPEALS TOWN OF SOUTHOLD: SUFFOLK COUNTY IN TIlE MATTER OF THE APPEAL OF TIlE AD HOC ~ASSOCIATION OF MATTITUCK INLET WATCH DOGS, THE BROWER WOODS ASSOCIATION, AND OTHERS, MAT-AZ'MAR MARINA. TO THE BOARD OF ZONING AND APPEALS OF SOUTHOLD: APPELLATE PETITION APPEAL NO. 2419 The Petition of the Mattituck Inlet Watch Dogs Association and others, respectfully alleges as follows: 1. All of the petitioners herein are homeowners and property owners whose holdings lie in the vicinity of Mattituck Inlet and the Mat-A-Mar Marina. For convenience, all these individuals will hereinafter be mentioned as Appellants. Mat-A-Mar Marina will here- after be mentioned as the Respondents. 2. On May 5, 1978, Respondent served notice upon contiguous land owners of his intention to seek a variance to sell retail boats. See Exhibit A. 3. Respondent made application N,,. 2419 to the Zoning Board on May 8, 1978 for a permit to use premises for retail sale of boats and requested a variance therefor. See Exhibit B. 4. On May 12, 1978 the Building Inspector of the Town of Southold disapproved'of said application on the ground that "retail sale of boats are a non-permitted use in this zone." See Exhibit C. 5. An appeal was taken to the Appeals Board a~nd on June 15, 1978 the Board of Zoning and Appeals granted "applicant per- mission to sell retail boats .... " See Exhibit D. 6. It is from this grant that the applicants herein appeal to the Board of Zoning and Appeal of the Town of Southold for an order reversing, rescinding, nullifying and setting aside the granted variance dated June 15, 1978 (Exhibit D) and for such other and further relief as to the Board may seem appropriate under the circumstances. -1- 7. Before the issues can become intelligible, certain background facts must be introduced. 8. That in 1957 there was enacted by the Town Board of the Town of Southold a Zoning Ordinance, together with an official zoning map delineating the zone distribution of the said Town. Said map is presently on file in the office of the Clerk of the Town of Southold and will hereinafter be referred to as the "1957 zoning map." The Appellant respectfully requests the Zoning Board to take judicial notice of the said. map and that the same be made a part of this petition to the same extent as if fully set forth herein as Exhibit E. 9. An examination of the said 1957 map shows that the land of respondent Mat-A-Mar comprising nine acres was characterized as "A" Zone residential-agricultural. 10. The 1957 zoning map is significant because it establishes certain vested interests in non-conforming uses. The nine acres presently belonging to respondent Mat-A-Mar were nominated and delineated a non- conforming use because o{ the prior existence of the "Harbor Inn Hotel" thereon belonging to Mrs. Vina Baker and Mr. George Van Buren. 11. Non-conforming uses in existence when a zoning ordinance is enacted, are permitted to continue if, and only if, enforce- ment of the ordinance would, by rendering valueless substantial improve- ments or business' built up over the years, cause serious financial harm to the property owner. (Joynt vs Zoning Board, Town of Cicero 171 N.Y.S-23~)! Hence Baker and Van Burcn continued the undisturbed use of the Harbor Inn Hotel even though it was totally surrounded by 'several hundred acres of high grade residential area and millions of dollars in upper income residential houses whose median value is approximately $50,000. each. 12. Some time between 1964 and 1966 Mrs. Baker and Mr. Van Buren sold their Hotel to the present owner of the Mat-A-Mar Marina, respondent herein. The former Mrs. Vina Baker is now Mrs. Vina Van Buren, widow of co-owner, George Van Buren. Appended hereto and made a part hereof please find a true copy of her affidavit (See Exhibit'F') dated July 25, 1978, in which she certifies that "in~957 at the time zoning was enacted in Southold Town, we operated the premises in question herein strictly as ahotel". She continues, "the waterfront was occasionally used by guests for swimming only. We did not moor boats nor accommodate boats in any way; we did not operate a mooring or a boat business of any nature whatsoever." Later in her affidavit she states "the premises sold to Mat-A-Mar was never a marina non-conforming use or any related boat business non-conforming use". -2- 13. On June 6, 1966, respondent applied to the Board of Trustees for a permit to bulkhead, dredge and install a floating dock for an approximate length of 1600 feet and to excavate 20,000 yards of creek bottom, 20 feet wide and 200 feetlong to a depth of five feet atlow tide. See Exhibit "G". In answer to the question, "area zoning", respondents answer was: "Change to Business "t~J' 14. A search of the Southold Zining Board records indicates that respondent never made application for a zone change variance. 15. A further search of the zone change resolutions of the Town Board indicates that on February 16, 1965 (just prior to the bulkheading permit) Change of Zone Amendment #67 reveals respondents land to be art"A: Zone. An examination of Amendment #68 dated April 6, 1965 (the only date on which a change, if any, could have taken place), comes up a blank. The map which accompanies the amendment and which graphically sets forth the zone changes, is missfl,g. It is the only map missing in the entire seriesl It is therefore impossible to establish any change of zone for respondents land. It is significant in this regard that at the last Zoning Hearing, respondent continually referred to his property as a"non-conforminguse". This amounts to an admission against interest and points toward the fact that this property was never lawfully ('hanged to a "B: zone. 16. Respondent acquired a vested right to a non-conforming use hotel and nothing more. The fictional expantion of said non-conforming use to include a marina was contrary to Section 261, 262, 263 and 265 of the Town Law and of the code of the Town of Southold, Section 100-10, sub-division C, D0 E, F, G and I, and also Section 100-12-1 sub-division B. (Telimar Homes vs Miller 218 NYS 2 175). 17. The spirit of zoning is to restrict and not increase non-conforming uses and to eliminate such uses as speedily as possible, but this must be done in such a way as not to result in too great a hardship to an existing non-conforming use. (Breed vs Town of Clay 212 N.Y.S-2 939). ]Fhis is consonant with the letter and the spirit of the Southold code section 100-10 sub-division F, which mandate "the gradual elimination of non-conforming uses" and with Southold Code section t00-10, sub- division E, which mandates "the maximum protection of residential areas. 18. Against this background, the respondent now comes before the Zoning Board for a further expansion of what originally started as a humble rural rooming house. Let us examine his appeal (#2419, Exhibit "B", dated May 8, 1978. Question #h Strict application of the ordinance would produce practical difficulties or unnecessary hardship because: Answer #1 "the retail sale of boats has become a necessary aspect of the marina business today. The retail sale of boats which this variance is requesting would not be a separate business but would be an accessory use to appli'cants' present marina business. The business would be conducted at leastl00' from Wickham Avenue and accordingly would not aesthetically change the nature of the neighborhoodj Question #2: The hardship created is UNIQUE and is not shared by all properties alike in the immediate vicinity of this property and in this use district because: Answer #2: ".there are no other marinas nearby and because the applicant's property is presently zoned B-1 which permits of marina use, of which the proposed retail sale of boats would be a necessary aspect. Question #3: The Variance would observe the spirit of the Ordinance and would not change the character of the District because: Answer #3: the applicant would still be operating a marina business and a variance for the retail sale of boats would not in any way change the character of the neighborhood. 19. Before the Zoning Board may exercise its discretion and grant a variance upon the ground of unnecessary hardship, the record must show (1) the land in question cannot yield a reasonable return if used only for the purpose allowed in thai zone; (2) that the plight of lhe owner is due to unique circnmstances and not to the general conditions in the neighborhood which may reflect unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character of the locality. (Bassett on Zoning Pg 120 etc: Otto vs Steinhilber 282 NY 71). 20; The Court of Appeals in McGown vs Cohalan and Town of Islip (1977) 303 MUS 2 376 and Grimpel As. sociates vs Cohalan-& Town of Islip (1977) 393 NYS 2 373 stated: "the property owner must show more than that the current zoning classification has caused a significant diminution in value, or that a substantially higher value could be obtained if an alternative use is permitted. Rather, the proper test is whether the owner can presently receive a reasonable return on his property. To succeed .... the owner must establish that no reasonable return may be had from any permitted use (Williams vs Town of Oyster Bay 343 NYS-2 118) unless the respondent demonstrates beyond a reasonable doubt that the property will not yield a reasonable return under any of the uses permitted by -4- the zoning ordinance he fails to satisfy his burden of proof. (Matter of National Merritt vs Weist 393 NYS 2 379). This is the law. 21. I submit that respondents answer to question #1 does not even address the requirements of the law. If "retail sale of boats is a necessary aspect of the marina business "it is not evidence that respondent is not presently receiving a reasonable return. The fact that retail sale of boats would not be a separate business or would be conducted 100' from Wickham Avenue is immaterial. He fails to carry the burden of proof. 22. I submit that respondents answer to question #2 does not satisfy the requirements of the law. "There are no other marinas nearby" is not what is meant by unique hardship. Again he repeats his inadequate answer to question #1 "the proposed retail sale of boats would be a necessary aspect.., of marina use." This is redundant and does not address the requirements of the law. Fie fails to carry the burden of proof. An example of what is meant by unique hardship will be found in the following case; Petitioner requested a variance to erect a six foot chain link fence. Denial of petitioners application to erect said fence and thus obtain a variance from the four foot fence limit, was arbitrary, capricious and an abuse of discretion, particularly in view of the 15 foot drop down an embankment to railroad tracks at the rear of petitioners premises. (Matter of Halstead Realty vs Holtzman 390 NYS 2 216). This is what is meant by unique circumstances. 23. I submit that respondents answer to Question #3 is frivolous. The respondent seeks a use variance. It has been held ~ that a use variance will have greater impact on the community than an area variance which does not involve a use prohibited by ordinance, however, magnitude of desired area of variance, while within the confines of permitted use, is a significant factor since the greater the variance from area restrictions, the more severe the likely impact on the community. (National Merrit vs Weist 393 NYS 2 379). In the instant matter the respondent has operated what has amounted to a floating hotel. (except that this floating hotel uses Mattituck Inlet for a cesspool). Patrons arrive by boat and leave by boat. Use of the local streets is incidental and minimal. Now, however, respondent seeks a variance for an additional use which wilt change the character and alter the use of respondents property, making it a thorough going commercial enterprise. The introduction of commercial sale of boats invites the introduction of the commercial sale of periferal items such as move- ment of boats by truck, fittings, p:~ints nnd cvcntu~dly repairs. Such Such commerce comes by way of the streets and in this case the streets are those of one of the finest and largest residential areas in Mattituck0 The respondent is surrounded on al__l sides by what amount to fine mansions. In the twelve years since be was allowed to obtrude into this area, his patrons have pumped uncounted gallons of raw human sewage into the south end of Mattituck Inlet (which this Board knows is the stagnant end, lacking an ebb and flow). It is now dangerous to take shell fish in the vicinily of respondents premises. One swims near respondents marina at risk of hepatitis and polio. One walks the beaches surrounding respondents marina and is nauseated by the toilet paper strewn thereon. Now the proposal by respondent is to pollute the streets in his vicinity as well, with an increased load of commercial traffic. This new use is bound to alter the essential character of the locality. On judicial review, following an adversary hearing at which both sides present evidence, issue before the court is whether the action of the Zoning Board on application for variance is founded on substantial evidence. CPLR 7803, Sub 4. I submit that respondent has utterly failed to submit the least shred of evidence to support his application. It would be no more than substantial jnstice for this Zoning Board to reopen and review respondents petition using the tests and criteria propounded by the cases herein. 24. That the relief sought herein has not been heretofore applied for. WHEREFOR, Appellant demands a reopening and re- examination of respondents application No. 2419, that the same be rescinded and denied, and for such other and further relief as may seem proper under the circumstances. CC: Gary Olsen, Esq. Attorney for Respondents Main Road, Mattituck0 N. Y. 11952 ,JAMES BITSES, E~'q. Attorney for Appellants Main Road, Southold, N.~ y. 11971 516 765-5700 BOARD OF APPEALS, TOWN OF SOUTHOLD In the Matter of the Petition of : MATT-A-MAR MAR., INC. : : to the Board of Appeals of the Town of Southold : TO: Walter Williams Vina Baker 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) (~'~s-~~~(the following relief: TTse V~ri~ant,~ fr~- permission to sell retail' boats at applicant's marina ). 2. That the property which is the subject of the Petition is located adjacent to your property and is des- cribed as follows: West side of Wtckham Ave.. Mattituck. NY bounded on the north, eoutb and west by Mattituck Creek: East by Baker and Williams and Wickham Ave. B1 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: ~ Variance to sell re- tail boats at applicants' marina 5. That the provisions of the Southold Town Zoning Code applicable to the relief sought by the under- signed are: A~l-lr.l~ ~TT g~,~t{nn 1DD-?D 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 mav then and there examine the same during regular office hours. 7. That before the relief sought may be granted, a public hearing must be h~"~ the matter by the Board of Appeals; that a notice of such hearing must be published at least five da/s prior,to the d~e of such hearing in the Suffolk Times and in the Long Island Traveler-Mattituck Watchn~n, news[lapers Pub?shed in the Town of Southold and designated for the publication of such notices; that YLor you/~presentatlve have the Matt-A-Ma~r~. / Petit~o~ ~y~a~ Ols~ Esq. right to appear and be heard at such hearing. Dated: ~vrn~v R; 1.qTR Post Office Address M attituck_. New NAME Walter Williams Vina Baker" PROOF OF MAILING OF NOTIC~E ADDRESS Mattitucke New York Mattituck, New York 11952 11952 RECEIPT FOR CERTIFIED MAIL POSTMARA P,O., STATE AND ZIP (:ODE _M._a_~ti._t_~_c_k,_ New York 11952 o.,,o.L .D,T,D.L 'ESS PS Form .lan. lgTS NO INSURANCE COVERAGE PUOYIDEO-- HOT FOP INTERNATIONAL MAIL OR DATE RECEIPT FOR CERTIFIED MAIL SENT TO ~a_Baker P.O.. ST~T.E aN° z,P C0DZ Mattztuck, New York 11952 --O~TIO#A~ SER~ODITIO#RL FEES ~-ECIAL~ESTRICT[D OEUVE.y ................................ ~'~I~ OEL~(e~ee f~ re~iee~ ................................. .~ ~ PS Form 3800 NO INSURANCE COVERAGE ~n. 1976 NOT FOR INTERNATIO~L MAIL STATE OF NEW YORK ) COUNTY OF SUFFOLK ) SS.: ('h~rie T,ynn Ru~se]] , residing at Mattituck. New Y'nr.k , being duly sworn, deposes and says that on the 5th day of May ,19 7 $ , deponent mailed a true copy of the Notice set forth on the re- verse side hereof, directed to each of the above-named persons at the addresses set opposite their respective names; that the addresses set opposite the names of said persons are the addresses of said persons as shown on the current assessment roll of the Town of Southold; that said Notices were mailed at the United States Post Of- rice at ~attituck. NY' ; that said Notices were mailed to each of said persons by (certified) ~:1~ mail. IN RE: THE APPEAL OF TttE MATTITUCK INLET WATCHDOGS ASSOCIATION. VINA VAN BUREN, a/k/a VINA BAKER, deposes and says: 1. In1945 I and myhusband George Van Buren, purchased nine acres on the East side of Mattituck Inlet which is presently occupied by the Mat-A-Mar Marina. 2. ' At the time we purchased the said property it was known as the "Harbor Inn Hotel". This accommodated around one hundred guests in the dining room. There was a main building and scattered bun gal ow s. 3. In 1957, at the time zoning was enacted in Southold Town we operated the premises strictly as a hotel. The waterfront was occasionally used by guests for swimming only. We did not moor boats nor accommodate boats in any way. We did not operate a marina or boat business of any nature whatsoever. 4. In 1957 the area of the hotel was in an "A" zone but the hotel operated as a non-conforming use. 5. When my husband and I sold the property to Mat-A-Mar, there was no boat business and no marina business whatsoever. Sold around 1965 or 1966. 6. The premises sold to Mat-A-Mar was never a marina non-conforming use or any related boat business non-conforming use. Notaly Public, State of No. 52-0302630 Q~allfied in Suffolk JAMES BITSES VINA VAN BUREN (L. S. ) Sworn to before me this 25th day of July, 1978. James Bitses, an attorney practicing in the State of New'York affir~rs, under the penalty of perjury, that the above is a true copy of a hand written affidavit presently in his possession, and that he witnessed the signature of Vina Van Buren~n the 25th day of July, 1978 and notarized same. Of his own knowledge hb knows that the person who signed the said affidavit is Vina Van Buren and that she stated that the contents thereof were true. jAMEs BITS~- - FOI~g NO. 1 TOWN OF SOUTHOLD BOARD OF TOWN TRUSTEES TOWN CLERK'S OFFICE SOUTHOLD, N. Y. APPLICATION FOR PERMIT INSTRUCTIONS A. This application to be completely filled in by typewriter or in ink and submitted to the Town Trustees in duplicate B. Plot plan showing location of lot and buildings on premises, relation to adjoining premises, public streets, parks, etc. and giving detailed description of proposed layout of proje~:t must be drawn on diagram which is part of this appli cation. The work covered by this application may not be commenced before the issuance of a permit. Upon approval of this application, Town Trustees will issue a permit to applicant. Such permit shall be kept on thc premises and available for inspection at oil times. Applicant shall notify the Board of Trustees upon completion of the work covered by perrn~t. APPLICATION IS HEREBY MADE to the Board of Trustees of the Town of Southold, Suffolk County, New York, for the i:ssuance of a permit pursuant to the laws, ordinances and regulations governing construction of: docks, piers, bulkheads, iettys und dredging in; under, and over the waters of Town of Southold. The applicant agrees to comply with all appli- table laws, ordinances, regulations and condiHons specified by said trustees, and to hold the Town of Southold, and all Town officials free from liability and damages of any kind· Nome of owner of oremlses l~'a~km (~,~ O~t, beg.~l- · Street Address of Proper 1~.c~ .A..~e F, attitmCke Ne~ Home Address If Other Than Location ...~...~...V.~ Pku,., ~'al~w_~tnne Near l'a~'k .................................. Creek, Boy or Harbor Frontin~ Prope[ty ...................... .-. ........;:'"'7 ............ · .. Permit Requested To: ]~3.k~3eeclm D~lg~ Tn~ll ~'J.oat:L~ uoei¢ ........................................................ 5 ze of Proposed Work: Length '.~....(~.... Lo.~.o Wi,~h u_,_~ ........... 2s~e ~ ~.~ .......................................... ;;.~.~;; ..... ne~gnm /~oove tfliglq water ...... Depth Be ow Low Water .~ . .e. Avero,~- o ,.. -r ,~. :~'~' -- · ~O ~ ........... ........................ ~.~,~.~%,.,~,~ ............................ taros To Be Excavated Width of Canal, Creek or Bay Front na Prooertv ~u-,-~u~- ; ....... ~[~t;,, ......................... - '~ JI ~ ........................................ '.. ueprn ot LOW /las ................ Is This For Private or Business Use.;) .......~...~ ...................... ~..~.~... Area Zoning ~omplete plot plan to be drawn on reverse side of this application. 1rlsn attached to thte app~cat~on TATE OF NEW YORK) :OUNW .-~,~..~.~,~....0...~.~. being duly sworn, deposes and says that he is the applicant for the above described >errnit, and that all statements contained herein are true to the best of his knov~ledge and belief; that the work will be done n the manner set forth in the application and as approved by the Board of Trustees of the;Town of Southold, and the ~pplicant agrees to hold the Town of Southold and said trustee/~rmless and free from any and oil damages and claims trising under or by virtue of said permit. (applicant) worn to before me this ....,~ ..........day of ...~. 19..&...~.. ~otory Public ................................ C~unty of ......... .~ ............ NOTARY PUBLIC. State of New No. 52-9438460. ~ ,Ik Count'/ Term Expires ~,, ~3. t966 BOARD OF ZONING AND APPEALS TOWN OF SOUTHOLD SUFFOLK COUNTY IN THE MATTER OF THE APPEAL OF THE AD-HOC ASSOCIATION OF I MATTITUCK INLET WATCH DOGS, BROWERS WOODS ASSOCIATION, etal I MAT-A-MAR MARINA. TO: Mat-A-Mar Marina c/o Gary F. Olsen Box 38, Main Road Mattituck, N.! Y.' 11952 NOTICE OF APPEAL PLEASE TAKE NOTICE 1. That it is the intention of the undersigned to petition the Board of Appeals of the Town of Southold for the following relief: The recision of the variance granted to Mat-A-Mar on or about June 1, 1978 in which Mat-A-Mar was granted the right for the commercial purchase or sale of fifteen (15) boats. 2. That the property which is the subject of the Petition includes the nine acres belonging to Mat-A-Mar and various adjacent parcels throughout the local area belonging to the individuals who are the plaintiffs herein, more generally known as the Ad-Hoc Association of Mattituck Inlet Watch Dogs, the Brower Woods Association, and others. 3. That the property, which is the subject of such petition, is located in the following general district: "B", light business, non- conforming use. 4. That by such petition the undersigned will request that the zoning variance granted Mat-A-Mar on or about June 1, 1978 as aforesaid be rescinded and denied in all particulars. 5. That the provisions of the Southold Town General Code applicable to the relief sought by the undersigned are as follows: Code of the Town of Southold Section 100-10, sub-division CDEFG and I: Section 100-118, sub-division ABCD. Section 100=121 C (1), (A), (B), (C), (D): (2) (A), (B), (C), (D), (E), (F), (G), (H), (Y), (K), (L): Section 100-122. 6. That within five days from the date hereof a written Petition requesting the relief specified above will be filed in the Southold Town Clerks Office at Main Road, Southnld, New York, and you may then and there examine the same during regular office hours, 7. That before the relief sought may be granted, a public ihearing must be held in the matter by the Board of Appeals and 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- Watchman, newspapers published in the Town of Southold, and designated for such publication of such notices; that you and your representatives have the right to appear and be heard at such hearing. //Petitioner and Attorney representing several individuals who comprise the Ad-Hoc Association of Mattituck Inlet Watch Dogs, the Brower Woods Association and others. Dated June 20, 1978 BOARD OF ZONING AND APPEALS TOWN OF SOUTHOLD SUFFOLK COUNTY IN THE 1VLiTTER OF THE APPEAL OF THE AD-HOC ASSOCIATION OF MATTITUCK INLET WATCH DOGS, BROWERS WOODS ASSOCIATION, etal PETITION MAT-A-MAR MARINA. O· ,T . Zoning Board of Appeals Southold, New York. " JAMES BITSES, an attorney practicing within the State of New York affirms as follows: 1 That he is the legal representative of the above named and makes this affirmation in their behalf. That he is familiar with all the facts and circumstances surrounding this matter. 2. That on June 1978, the Board of Zoning and Appeals granted a variance to the Mat-A-Mar M~a~l~i~_e of Wickham Avenue, Mattituck New York (Ap@e al No.~/~ Dated ~/f/~,~ ) whereby they were granted the privilege of the commercial purchase and sale of fifteen (15) boats. 3. That notwithstanding the objections of several of the local residents who appeared before the Board on the said date, the variance was granted. 4. We respectfully appeal from the decision of the Zoning ]Board of Appeals in this matter and request the reopening of the hearings in the above matter for the purpose of introducing newly discovered evidence and with the intent of overturning the previous decision of the ]Board with a ?esultant recision of Mat-A-Mars recently granted variance. 5. We refer to Town Law Section 267 Sub-division 6, wl~ich frants the Board of Zoning and Appeal the right to review at a rehearing ny order, decision or determination of the Board .... and the Board may everse, modify or annul its original order, decision or determination. 6. We intend to introduce certain facts and circumstances which were not previously presented to the Board of Zoning and Appeals. We verily believe that a further consideration of all the facts, including the new facts we intend to present, will result in a recision of the pre- viously entered variance. WHEREFOR, we respectfully request a hearing on July i6th or on any day subsequent thereto at which this matter can be heard !and at which time we will request a recision of the previously entered variance granted to Mat-A-Mar as aforesaid, and for such other and further relief as to the Zoning Board of Appeals may seem just and proper under the circumstances. yi~s Bitses Dated June 20, 1978. TOWN OF $OUTHOLD 154.6 A[C} [Ui~DE RWATER LAND] ¢ 04(c . ® 9.0A{ c) SEE SEC NO. ;39 4re., / / / / / / / / / / / /