EH Town Zoning Board of Appeals              Denise Savarese

              300 Pantigo Place              Telephone: (631) 324-8816

              East Hampton, NY  11937

 

EH Town Zoning Board of Appeals meeting of May 2, 2017
East Hampton, New York

 

 

I.              CALL TO ORDER

6:30 PM Meeting called to order on May 2, 2017 at Town Hall Meeting Room, 159 Pantigo Road, East Hampton, NY.

 

Attendee Name

Present

Absent

Late

Arrived

Chairman John P. Whelan

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Board Member Theresa Berger

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Board Member Roy Dalene

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Board Member Cate Rogers

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Board Member David Lys

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II.              CANCELLED PUBLIC HEARING:

III.              SCHEDULED PUBLIC HEARINGS:

A.              87 Abrahams Landing LLC

              TIME:              6:30:00 PM              APPLICANT:              87 Abrahams Landing, LLC

              SIZE/LOCATION:              19,954.89, 87 Abrahams Landing, N/A, Amagansett (300-150-04-17)

              DESCRIPTION:              To allow an approximately 428 sq. ft. garage to remain outside of the town's pyramid

              restrictions.

              RELIEF SOUGHT:              One variance of 1ft from Section 255-11-72D (Pyramid) is required to allow the residence to be constructed outside of the towns pyramid regulations, and any other relief necessary.

              ZONING DISTRICT: A2 Residence Zone X Flood Zone

              SEQRA CLASS:              Type II

i.              Technical Analysis Memorandum

Technical Analysis Memo

             

              Lead Agency:              (not applicable)

              Planner:              James Kommer             

              Date completed:              February 28, 2017              Site Plan

              SEQRA class:              Type II              Sub Waiver

              Physical Location:              87 Abrahams Landing              Subdivision

              School District:              Amagansett              Special Permit

              Zoning District:              A2 Residence              Zone Change

              Overlay District:    Water Recharge Overlay District              Variance: XX             

              Tax Map Number: 300-150-04-17              Natural Resources

     Applicant:                            87 Abrahams Landing LLC                                           Special Permit  

                                          C/o Dan Gualtieri                                              Other:

78 Park Place, Ste. 203

East Hampton, N.Y. 11937  

                                         

             

              Telephone:                            516-356-4834

              FEMA ZONE:              X Flood Zone

              Soil Type:              Montauk fine sandy loam, 3 to 8 percent slopes (MfB), Montauk silt loam, 3 to 8 percent slopes (MkB), Riverhead sandy loam, 8 to 15 percent slopes (RdC)

              Map of Property:              N/A

              Size of Parcel:              19,954.89 sq. ft.

 

Project Description:  To allow an approximately 428 sq. ft. garage to remain partially within side yard setbacks and outside of the town?s pyramid restrictions.

 

Relief Requested: Variances from Section 255-11-10 (Table III) and ?255-11-72D (Pyramid) of the Town Code and any other relief necessary.  The following variances are required: (1) A 1'3"  variance is required to allow the addition to remain 13'9" from the eastern (side yard) lot line where a 15' setback is required; (2) a  variance is required to allow the garage to extend approximately 1' beyond the relative height limit (Pyramid) along the eastern lot line.

 

Property and History: The property is currently improved with a one story residence with driveway, approximately 428 sq. ft. attached garage and 224 sq. ft. deck. The most recent Certificate of Occupancy issued on the property was in 1972 for an ?1,128 sq. ft. one-story, one-family residence having one kitchen only, 126 sq. ft. roofed over entry and 42 sq. ft. attached storage shed?. All of the improvements can be found on the Scalice Land Surveying, P.C. survey dated 06/08/16. The property has not appeared before the Zoning Board previously.

 

Planning Department Analysis and Recommendations for the Board' s Consideration:

Situated on the north side of Abrahams Landing, the property is within the Water Recharge Overlay District. The 19,954.89 sq. ft. property is 100% cleared, when as per Section 255-3-65E  <http://ecode360.com/10414572 highlight=clearing%20clearing,water%20recharge,recharged,recharges,clearing,cleared,waters,water>only 35% or 10,000 sq. ft. (whichever is greater) is permitted, but the nonconforming clearing predates and is largely unchanged since the establishment of the district. The survey identifies the property as 82% clear, but inspection by the town determined it was 100% clear.

 

Prior to the addition of the attached garage in 1984, the approximately 428 sq. ft. area had been preceded by a 42 sq. ft. attached storage shed and a portion of the property's driveway. A building permit (No. 19693) was applied for and obtained in August of 1984 for the construction of a 403 sq. ft. attached one car garage by Amato and Josephine DiSunno. The application was submitted with a map of the property surveyed by George H. Walbridge Co. Land Surveyors and Planners, revised on 11/15/1978, including a diagram of the proposed garage, serving as a plot diagram. The footings, foundation and framing of the structure where inspected on 9/13/84 & 10/11/84 and the final inspection was conducted on 11/8/84. While plans show the attached garage 15ft. from the eastern side yard, the as built structure lies only 13' 9" from the aforementioned side yard. The 13'9" distance to the side yard compared to the 14'8" high attached garage results in a noncompliance with the town?s pyramid restrictions as per Section 255-11-72D of the East Hampton Town Code. It appears that the survey and the building plans are referencing two different distances as the elevation plans read 13'9" and the survey reads 13.9". The applicant should clarify the appropriate distance and update the incorrect document.

 

The Zoning Board needs to decide if the applicant meets the variance standards in Section 255-8-50 of the Town Code in order to be eligible for the issuance of the requested variance. The applicants should address how the variance does not cause an undesirable change in the character of the neighborhood, cannot be achieved by some method other than the requested variances, is not substantial, and does not have an adverse effect or impact on the environment or the neighborhood

 

 

 

Recommended Project Conditions: N/A existing structure

 

 

B.              Bruce Bistrian

              TIME:              6:50:00 PM              APPLICANT:              Bruce Bistrian

              SIZE/LOCATION:              24,609 sq. ft. (total), 45 Napeague Harbor Road, N/a, Amagansett               (300-110-02-12.16)

              DESCRIPTION:              To construct an approximately 2,114 sq. ft. one and two story residence with               1st and 2nd floor decking, sanitary system and driveway on a parcel of land containing tidal

              and freshwater wetlands dune land and beach vegetation.

              RELIEF SOUGHT: A Natural Resources Special Permit (NRSP) pursuant to Sectopm 255-4-20 and               variances from Section 255-4-30 (Minimum wetland setbacks), Section 255-11-72D (Relative               height limitation) and any other relief necessary. The following variances are required: (1)               & (2) Variances of 50.2 ft.  & 69.5 ft.  are required to construct the residence               and decking               49.8 ft.  and 30.5 ft.  respectively from wetlands where a 100 ft. setback is required; (3) a               116.1 ft. variance is required to install the sanitary system 33.9 ft. from wetlands where a               150 ft. setback is required; (4) land clearing is proposed as close as 4 ft. from wetlands               where               a 50 ft. setback is required; and (5) a variance is required to allow the residence to               extend approximately 9 ft.  beyond the relative height limitation (Pyramid) along the eastern

              (side yard) lot line.

              ZONING DISTRICT:A2 Residence AE Flood Zone, elevation 10'

              SEQRA CLASS: Type II

i.              Technical Analysis Memorandum

Technical Analysis Memorandum

              Lead Agency:              (not applicable)

              Planner:              Brian Frank

              Date completed:              3/27/17 (revised)              Site Plan

              SEQRA class:              Type II              Sub Waiver

              Physical Location:              45 Napeague Harbor Road              Subdivision

              School District:              Amagansett              Special Permit

              Zoning District:              A2 Residence              Zone Change

              Overlay District:              Harbor Protection Overlay District              Variance: XX

              Tax Map Number: 300-110-02-12.16              Natural Resources

              Applicant:              Bruce Bistrian              Special Permit: XX

              C/o Britton Bistrian              Other:

              PO Box 2756

              Amagansett, NY  11930

              Telephone:              (631) 267-9792

              FEMA ZONE:              AE Flood Zone, elevation 10?

              Soil Type:              Dune land (Du)

              Map of Property:              N/a

              Size of Parcel:              24,609 sq. ft. (total)

 

              Project Description:

To construct an approximately 2,114 sq. ft. one and two story residence with 1st and 2nd floor decking, sanitary system and driveway on a parcel of land containing tidal and freshwater wetlands dune land and beach vegetation.

 

              Relief:

A Natural Resources Special Permit (NRSP) pursuant to ? 255-4-20 and variances from ?255-4-30 (Minimum wetland setbacks), ? 255-11-72D (Relative height limitation) of the Town Code and any other relief necessary.  The following variances are required: (1) & (2) Variances of 50.2? & 69.5? are required to construct the residence and decking 49.8? and 30.5? respectively from wetlands where a 100? setback is required; (3) a 116.1? variance is required to install the sanitary system 33.9? from wetlands where a 150? setback is required; (4) land clearing is proposed as close as 4? from wetlands where a 50? setback is required; and (5) a variance is required to allow the residence to extend approximately 9? beyond the relative height limitation (Pyramid) along the eastern (side yard) lot line.              

 

 

              Property Conditions and History:

The subject property is vacant, undisturbed and contains multiple protected natural features as defined in the Town Code.  The property is located off of a private road extension of Napeague Harbor Road.  The property does not have frontage along a public or private road and has proposed obtaining access from the adjacent property (SCTM: 300-110-02-12.9; a.k.a 49 Napeague Harbor Road).  A separate application has been submitted to the Zoning Board for a NRSP and lot area variances necessary to establish a legal access easement across the southern portion of that property to the residential improvements proposed on the subject property.  The survey depicting the proposed improvements on lot 12.16 also depicts the proposed access easement on lot 12.9 and was prepared by George Walbridge Surveyors, PC dated revised, 8/31/16.  The floor and elevation plans for the residence were prepared by Douglas Moyer Architect (4 pgs) dated 6/13/15.  A Phase I Archaeological Investigation was conducted in October 2015 and is contained in the Board?s file.   The proposal has received a permit from the New York State Department of Environmental Conservation (NYSDEC), also contained in the Board?s file.  The status of an application for the water supply and waste disposal with the Suffolk County Department of Health Services (SCDHS) is unknown.  The property appears to be held in the same family name since prior to the Natural Resources Special Permit regulations, adopted in 1984.  The current owner of record appears to be Bruce and Eleanor Dix Bistrian as of August 2014.

 

 

              Planning Department Analysis and Recommendations for the Board?s Consideration:

Napeague Harbor Road is located along the east side of Napeague Harbor.  An unpaved private road extends from the paved roadway along the southeastern shoreline of the harbor and provides access to nine improved waterfront properties.  The entire area constitutes an area of extreme environmental sensitivity and uniqueness.  The lower elevations of this area are dominated by either tidal, brackish or freshwater wetlands, depending on the extent of their connectivity with the surface waters of Napeague Harbor.  Elevations that are high enough to not be influenced by their proximity to the water table, consist nearly exclusively of dunes or beach vegetation as defined in ? 255-1-20 of the Town Code.

The Planning Department recommends denial of the application as proposed and respectfully submits that the application fails to meet the Variance standards of ? 255-8-50, the general Special Permit standards of ? 255-5-40 and the specific Natural Resources Special Permit standards of ? 255-5-51 of the Town Code.   There are no residential improvements currently located south of the unpaved private road and the proposed construction would result in significant habitat fragmentation to the wetlands and dune land.  The application requires substantial variances from all of the Town?s minimum setbacks for structures, land clearing and the installation of wastewater disposal systems.  All of the proposed wetland setbacks require more than a 50% reduction of minimum setbacks and the proposed sanitary system requires a more than 76% reduction of the 150? minimum wetland setback.  The lowest elevations of the property are found less than 4? above sea level to the northwest of the proposed house and in the southern portion of the property where the driveway is proposed.  The highest elevation of 12.4? is located on a small dune formation to the west of the proposed house.   Despite these changes in elevation, no proposed grades are indicated on the survey and the clearing boundary has been proposed less than 5? from the sanitary system retaining wall and between 5?-10? from the perimeter of the improvements.

It should be noted that the 10,000 sq. ft. of allowable clearing indicated on the survey is somewhat misleading.  While a 22,337 sq. ft. property within the Harbor Protection Overlay District (HPOD) is generically allowed up to 10,000 sq. ft. of land clearing, this generalization does not account for the presence of dunes and beach vegetation, which are protected natural features pursuant to ? 255-4-20(D)(2) & (G), or those areas of the property that are located within 50? of the wetlands, where clearing is limited pursuant to ? 255-4-30(D) of the Town Code.   The application proposes temporary clearing in excess of the 10,000 sq. ft. limit, which requires an additional variance that has not been requested.  The length of the driveway (most of which has been proposed on lot 12.9) and southern portion of the parking area on the property has been proposed approximately 4? from the extensive tidal wetlands and portions of the parking area are proposed only 4? above sea level. 

The subject property is located within a Scenic Area of Statewide Significance.  Napeague Harbor is a New York State Significant Coastal Fish and Wildlife Habitat.  It is also a component of the Peconic Estuary Critical Environmental Area and is among the cleanest and most productive narrow mouthed embayments on Long Island with the highest water quality rating (SA) for surface waters.  It is used extensively for a wide variety of commercial and recreational purposes.  Presently, no portion of the harbor is seasonally or permanently closed to shellfishing.  No other harbor in the Town is completely free of permanent, seasonal or conditional shellfish closings.  In fact, no other narrow mouthed embayment in Suffolk County is completely free of uncertified shellfish areas within its surface waters and tributaries as indicated by the shellfish closures map maintained at the NYSDEC web site.   The State of New York, Suffolk County and the Town of East Hampton have preserved more than 4,000 acres of open space around the harbor at Napeague State Park, Hicks Island, Hither Hills, Lazy Point, Hither Woods and the Koppleman Preserve.  The minimum encroachment on the wetlands and the watershed of the harbor unquestionably contributes to the high water quality of this harbor.  This complex of habitats located within State parkland and other conserved open space has also resulted in one of the highest concentrations of rare plants and animals in the entire Town of East Hampton. 

The tidal and freshwater wetlands on and adjoining the subject premises can be expected to provide all of the benefits typically associated with pristine wetlands and surface waters as articulated within ? 255-4-15 of the Town Code.  A brief summary of these benefits include the provision of high quality habitat for a wide variety of flora and fauna, nursery areas for fin and shellfish, the attenuation of floodwaters, the removal of pollutants and nutrients prior to surface water recharge, research and educational opportunities and aesthetic values.  All of these values are reduced when clearing, excavation, grading, the construction of structures and the installation of wastewater disposal systems occur in extreme proximity to these wetlands.

The residence has been proposed two feet higher than the minimum first floor elevation required by Federal Emergency Management Agency (FEMA) regulations.  The property is located within an area of extreme vulnerability to coastal flooding.  The extensive tidal wetlands located to the north and south of the property contain standing water with direct connectivity to the surface waters of Napeague Harbor.  The elevation of the water level within these wetlands is directly influenced by the lunar cycle and by severe weather events and the vulnerability of the property to flooding is likely to increase over time as sea level rises.

Due to the severe and unique environmental constraints associated with the property, it is the Planning Department?s opinion that the scale of development must be significantly reduced to meet the Town?s permit standards.  The residence and covered porch combine to comprise 2,265 sq. ft. of roofed surfaces.  The footprint and the gross floor area should be substantially reduced and the property may only be suited to a residential use consisting of cottage scale development closer to the Town?s 600 sq. ft. minimum residence size.  Reducing the square footage and footprint would increase wetland setbacks for the structures and sanitary system, reduce the severity of habitat fragmentation, facilitate a more realistic clearing boundary and allow for drainage control structures to be located farther from the wetlands.   Limiting the scale of the development to a small, one story structure would also help minimize the impacts to the SASS resulting from the development of the property.  Although not required by the AE Flood Zone the property is located within, the extreme vulnerability of the property to coastal flooding makes it a good candidate for any structure to be elevated on a piling foundation.   Any revisions to the application submit prior to the public hearing should include any proposed grading on the survey and a more detailed depiction of the elevations of a structure above natural grade.

 

              Summary of Mitigation:

The Planning Department recommends denial of the application as proposed and can provided suggested mitigation measures at the request of the Board or in conjunction with a reduced scale project.

C.              Bruce Bistrian

TIME: 7:10:00 PM              APPLICANT: Bruce Bistrian

SIZE/LOCATION: 38,838 sq. ft. (approx. total), 49 Private Road (off Napegue Harbor Rd.), N/a,

Amagansett (300-110-02-12.09)

Project DeDESCRIPTION: To reduce the lot area of parcel that is non-conforming to minimum lot area requirements in conjunction with the establishment of an access easement and the

construction of a 157 ft. long driveway on a parcel of land containing tidal and

freshwater wetlands, dune land and beach vegetation.

RELIEF SOUGHT: A Natural Resources Special Permit (NRSP) pursuant to Section 255-4-20 and a variance from              Section 255-11-10 (Table of Dimensional Regulations) of the Town Code. A variance is

required to allow the total lot area of an approximately 38,838 sq. ft. parcel to be

reduced by 3,081 sq. ft. where the minimum required lot size is 84,000 sq. feet.

ZONING DISTRICT:              A2 Residence AE Flood Zone, elevation 10'

SEQRA CLASS: Type II

i.              Technical Analysis Memorandum

Technical Analysis Memorandum

             

              Lead Agency:              (not applicable)

              Planner:              Brian Frank

              Date completed:              3/27/2017 (revised)              Site Plan

              SEQRA class:              Type II              Sub Waiver

              Physical Location:49 Private Road (off Napeague Harbor Road)              Subdivision

              School District:              Amagansett              Special Permit

              Zoning District:              A2 Residence              Zone Change

              Overlay District:              Harbor Protection Overlay District              Variance: XX

              Tax Map Number: 300-110-02-12.09              Natural Resources

              Applicant:              Bruce Bistrian              Special Permit: XX

              C/o Britton Bistrian              Other:

              PO Box 2756

              Amagansett, NY  11930

              Telephone:              (631) 267-9792

              FEMA ZONE:              AE Flood Zone, elevation 10'

              Soil Type:              Dune land (Du)

              Map of Property:              N/a

              Size of Parcel:              38,838 sq. ft. (approx. total)

Project Description:

To reduce the lot area of parcel that is non-conforming to minimum lot area requirements in conjunction with the establishment of an access easement and the construction of a 157 ft. long driveway on a parcel of land containing tidal and freshwater wetlands, dune land and beach vegetation.

 

Relief:

A Natural Resources Special Permit (NRSP) pursuant to ? 255-4-20 and a variance from ? 255-11-10 (Table of Dimensional Regulations) of the Town Code. A variance is required to allow the total lot area of an approximately 38,838 sq. ft. parcel to be reduced by 3,081 sq. ft. where the minimum required lot size is 84,000 sq. feet.

 

 

Property Conditions and History:

The subject property is vacant, undisturbed and contains multiple protected natural features as defined in the Town Code.  The property is located off of a private road extension of Napeague Harbor Road.  This application has been submitted to provide access to an adjoining, apparently ?landlocked? property (SCTM: 300-110-02-12.16; a.k.a 45 Napeague Harbor Road).  A separate application has been submitted for residential improvements on that property and the Planning Department would encourage the Board to review the two application concurrently.  It should be noted that a number of documents pertinent to this application may be contained in the file for 45 Napeague Harbor Road.  There does not appear to be a survey specifically for lot 12.9; the proposed access easement is depicted on the survey prepared for lot 12.16 (George Walbridge Surveyors, PC revised 8/31/16) which shows the proposed improvements associated with that application.  The survey depicts a 20? wide easement, clearing to a width of 16? and a gravel driveway width of 12 feet. 

The subject property (lot 12.09) consists wholly of pristine dune land, beach vegetation and tidal and freshwater wetlands as defined in ? 255-1-20 of the Town Code.  On its western border, the property adjoins and would obtain access from a Town owned parcel (SCTM: 300-109-01-13.01); a property that appears to have been purchased with Community Preservation Funds in 2000 and is a designated nature preserve in the Parks and Conservation zoning district.  It should be noted that a ?loop? that permitted vehicles to turn around on the private road was evident on aerial photographs until at least 2004, but is currently overgrown.  A copy of the Title report from the Town?s purchase appears to have been submitted among a number of documents received by the Board on 11/07/16. The proposal has received a permit from the New York State Department of Environmental Conservation (NYSDEC), also contained in the Board?s file.  The owner of record appears to be Bruce Bistrian since August, 2014.

 

 

Planning Department Analysis and Recommendations for the Board?s Consideration:

 

Pursuant to ? 255-4-43(B), pervious residential driveways are not subject to the wetland setbacks of ? 255-4-30 of the Town Code.  Consequently, a variance is not required for the proposed wetland setback of the driveway and associated clearing which varies from 3? - 12? from the extensive salt marsh south of the driveway.  This same Code provision requires that ?Any such driveway or walkway shall, however, be set back as great a distance as practicable from the upland boundary of all wetlands.?  A review of the topography from the Town?s Geographic Information System (GIS) indicates a dune ridge with elevations between 6? - 7? above sea level located almost equidistant between the tidal wetlands in the southern portion of the property and the freshwater wetland in the interior of the property.  Minimally, the access easement and driveway should be relocated to this location to be eligible for the exception to setbacks cited above.

 

The application is proposing to reduce the lot area of a property that is already severely constrained by the presence of a substantial freshwater wetland within the interior of the property and extensive tidal wetlands to the north and in the southernmost portion of the property. The Town?s lot area definition in ? 255-1-20 of the Town Code specifically excludes wetlands from lot area calculations.  Consequently, the actual existing lot area of the property is likely considerably smaller than ?total? lot area estimated at 38,838 sq. ft. from the Town?s Geographic Information System (GIS).  In order for an access easement application to satisfy the Special Permit standards of 255-5-40 and the NRSP standards of 255-5-51, the applicant must demonstrate how the further reduction of lot area would affect the buildability of a parcel that is already non-conforming to lot area and all of the Town?s minimum wetland setbacks for structures, waste disposal systems and land clearing. 

The subject property is located within a Scenic Area of Statewide Significance (SASS).  Napeague Harbor is a New York State Significant Coastal Fish and Wildlife Habitat.  It is also a component of the Peconic Estuary Critical Environmental Area and is among the cleanest and most productive narrow mouthed embayments on Long Island with the highest water quality rating (SA) for surface waters.  It is used extensively for a wide variety of commercial and recreational purposes.  Presently, no portion of the harbor is seasonally or permanently closed to shellfishing.  No other harbor in the Town is completely free of permanent, seasonal or conditional shellfish closings.  In fact, no other narrow mouthed embayment in Suffolk County is completely free of uncertified shellfish areas within its surface waters and tributaries as indicated by the shellfish closures map maintained at the NYSDEC web site.   The State of New York, Suffolk County and the Town of East Hampton have preserved more than 4,000 acres of open space around the harbor at Napeague State Park, Hicks Island, Hither Hills, Lazy Point, Hither Woods and the Koppleman Preserve.  The minimum encroachment on the wetlands and the watershed of the harbor unquestionably contributes to the high water quality of this harbor.  This complex of habitats located within State parkland and other conserved open space has also resulted in one of the highest concentrations of rare plants and animals in the entire Town of East Hampton. 

The tidal and freshwater wetlands on and adjoining the subject premises can be expected to provide all of the benefits typically associated with pristine wetlands and surface waters as articulated within ? 255-4-15 of the Town Code.  A brief summary of these benefits include the provision of high quality habitat for a wide variety of flora and fauna, nursery areas for fin and shellfish, the attenuation of floodwaters, the removal of pollutants and nutrients prior to surface water recharge, research and educational opportunities and aesthetic values.  All of these values are reduced by when clearing, excavation, or grading, the construction of structures and the installation of wastewater disposal systems occur in extreme proximity to these wetlands.

 

Prior to the public hearing for this application, a survey for the subject property should be submitted that includes all of the information typically required for Natural Resources Special Permit applications including, but not limited to, topography, flood zones, existing and proposed lot area calculations and proposed clearing calculations.  The easement location should be relocated to the highest elevations on the property and the driveway should include all proposed grading and, if applicable, any retaining walls that may be necessary to stabilize the gravel material that has been proposed.

             

 

Summary of Mitigation:

Refer to preceding paragraph.             

 

 

 

D.              Gary Symansky

              TIME:              7:30:00 PM              APPLICANT:              Gary Symansky

              SIZE/LOCATION:              18,670.6 sq. ft. (total), 78 South Fairview Ave, Montauk Beach Development Corp.,

              South Downs Residential Section, map # 1012, subdivision 2, block 38, lot 5.,

              Montauk (300-028-02-26)

              DESCRIPTION:              To allow an approximately 96 sq. ft. shed to remain within jurisdiction and setbacks of

              freshwater wetlands.

              RELIEF SOUGHT:              A Natural Resources Special Permit pursuant to Section 255-4-20 of the East Hampton

              Town Code and one variance is required for this project. One variance of 4 ft., from

              ?255-4-30 of the Town Code, is required to allow the shed to remain 96? from

              freshwater wetlands where a 100 ft. setback is required, and any other relief necessary.

              ZONING DISTRICT:              B Residence Zone X Flood Zone

              SEQRA CLASS:              Type II

 

i.              Technical Analysis Memorandum

Technical Analysis Memo

             

              Lead Agency:              (not applicable)

              Planner:              Tyler Borsack

              Date completed:              February 22, 2017              Site Plan

              SEQRA class:              Type II              Sub Waiver

              Physical Location:              78 South Fairview Ave.              Subdivision

              School District:              Montauk              Special Permit

              Zoning District:              B Residence              Zone Change

              Overlay District:    N/A              Variance              XX

              Tax Map Number: 300-028-02-26              Natural               Resources

     Applicant:              Gary Symansky                                                                 Special Permit    XX

                                          C/O Richard A. Hammer                                             Other:

Biondo & Hammer, LLP

P.O. Box 5030

Montauk, NY 11954

             

              Telephone:                            631-668-1000

              FEMA ZONE:              X Flood Zone

              Soil Type:              Wallington silt loam, till substratum (Wa)

              Map of Property:              Montauk Beach Development Corp., South Downs Residential Section, map # 1012, subdivision 2, block 38, lot 5.

              Size of Parcel:              18,670.6 sq. ft. (total)

 

Project Description:

To allow an approximately 96 sq. ft. shed to remain within jurisdiction and setbacks of freshwater wetlands.

 

Relief Requested:

A Natural Resources Special Permit pursuant to Section 255-4-20 of the East Hampton Town Code and one variance is required for this project. One variance of 4?, from Section 255-4-30 of the Town Code, is required to allow the shed to remain 96 ft. from freshwater wetlands where a 100? setback is required, and any other relief necessary.

 

Property Conditions and History:

The parcel is improved with an approximately 1,812 sq. ft. two story residence with 528 sq. ft. of decking. All of the structures are depicted on the William J. Walsh Land Surveyor survey dated revised September 3, 2014. The most recent C.O. was issued in 2000 for:  996 sq. ft. at 1st fl., 816 sq. ft. at 2nd fl. of 2-story, frame, 1-family residence, having 1 kitchen only; & 528 sq. ft. deck. The parcel appeared before the Zoning Board twice previously in 1986, in 1993, and 2015 for the residence, additional decking, and most recently the ZBA denied an existing shed closer to the wetlands and approved an expansion of the driveway.

 

Planning Department Analysis and Recommendations for the Boards Consideration:

The applicant is currently before the Board for approval to construct a nonconforming shed approximately 96? from freshwater wetlands to the south and 142 ft. from freshwater wetlands to the north.

 

This property had an extensive scenic easement placed over a large portion of the eastern/southern side of the parcel as part of the 1986 ZBA approval for the residence. At that time, water was running from the golf course across the applicants parcel and to the wetland on the subject property. That water has since been diverted to remain on the golf course and no longer creates the significantly wet areas further up the property. The easement was written in such a way as to allow the modification of the boundaries if the wetland were to ever change.

 

?It is understood that the wetland to be protected by this scenic and conservation easement is the result of a man-made drainage ditch. Should such ditch be modified or removed at any future date removing the need for such easement or requiring its modification, the Grantors and Grantee, upon their mutual consent may modify the boundary of the burdened premises. It is further understood that this modification is permitted by the easement, itself, and it not subject to the provisions of Chapter 22 of the East Hampton Town Code.

 

Because the water being diverted off the golf course was altered and the wetland changed, the Town Board was receptive to the idea of altering the scenic easement to alleviate some of the burden from the now unnecessary easement. The original and current easements are both depicted on the William J. Walsh Land Surveyor survey dated revised September 3, 2014. A driveway was constructed within the current scenic easement which should be removed and the area restored prior to the issuance of a building permit for the requested shed.

 

A shed was constructed without the benefit of a Building Permit sometime between 2007 and 2010 which was subsequently denied by the Zoning Board in a decision filed in February of 2015. The shed at that time was nonconforming to side yard lot line setbacks, pyramid regulations, and wetland setbacks. The majority of the Board in 2015 found that the variances for the shed would cause an undesirable change to the character of the neighborhood, the variances were substantial, were achievable by other feasible methods, would have an adverse impact on the environmental conditions, and was a self-created difficulty.

 

Currently, a shed is proposed to remain in a much more conforming location, removing the lot line and pyramid variances and significantly reducing the wetland setback variance. If the Board is inclined to approve the proposed shed, the Board should require all structures be removed from the scenic easement prior to the issuance of a Building Permit.  The driveway and stones removed from the scenic easement and the area should be revegetated prior to moving forward with the shed.

 

The wetlands within jurisdiction are part of a larger area of wetlands and year-round ponds in the vicinity. The wetland is a depression that likely receives a large amount of storm-water from South Fairview as well as the surrounding properties. The subject wetland on the property to the south constitutes an integral part of the natural environment.  The hydrologic processes associated with this wetland include but are not limited to the natural detention of storm-water that eventually recharges into the groundwater table. The storm-water flowing to the subject wetland likely catches pollutants from runoff such as petroleum products from roadways, fertilizers from nearby lawns, sediments, bacteria, suspended solids, road salt and possibly metals. These pollutants carried by storm-water have an overall negative effect on water quality. In addition, the wetland helps diversify the landscape and is important habitat for water dependent flora and fauna.

 

The Zoning Board needs to decide if the applicant meets the variance standards in ?255-8-50 of the Town Code and the NRSP standards of Section 255-5-51 of the Town Code in order to be eligible for the issuance of the requested variance and NRSP. The applicant needs to show that the proposed project will not create a detriment to nearby properties, that the benefits cannot be achieved by some other method, that the project is not substantial, and will not have an adverse impact on the physical or environmental conditions.

 

Recommended Project Conditions:

 

1.              The driveway and associated structures within the scenic easement should be removed prior to a Building Permit.

2.              The scenic easement should be revegetated in accordance with the species, sizes and spacing indicated on a revegetation plan approved by the Board prior to the issuance of a building permit.  The revegetation should be completed prior to the issuance of a certificate of occupancy. 

3.              A copy of the Natural Resources Special Permit and the approved survey and building plans shall be available on the parcel at all times.

 

IV.              WORK SESSION:

V.              EXTENSION OF TIME:

A.              Lynn Fischer

SCTM# 300-17-1-10 - 82 Fleming Road, Montauk

B.              Daniel Popadick

SCTM# 300-32-2-3516 S Goodridge Place, Montauk -

C.              Karen Magovern

SCTM# 300-24-1-18 - 287 Kings Point Road, Springs

D.              Jerome Griffith

SCTM# 300-35-1-1.17 - 60 Hedges Banks Drive, East Hampton

VI.              POSSIBLE ADMINISTRATIVE APPLICATIONS:

VII.              BOARD DETERMINATIONS:

A.              Esther Rubin

SCTM# 300-141-2-1.3

 

29 Wood Oak Lane, East Hampton - Modification request to delete a Condition of Approval to move the existing hot tub heater to a conforming location prior to the issuance of a Certificate of Occupancy. 

Approval was granted to allow a pool patio to remain 16.3 ft. from the side yard where a minimum 20 ft. setback is required and any relief necessary.

VIII.              BOARD DECISIONS:

A.              Ackerman

SCTM# 300-174-2-32

71 Jacqueline Drive, Amagansett Relief sought is a Natural Resources Special Permit pursuant to Section 255-4-20 and a variance from Section 255-4-30 of the Town Code and a variance to construct a deck 9 foot from the wetlands where a 100 foot minimum setback is required to demolish and remove an existing deck and replace it with a 458 square foot deck and to clear vegetation in order to construct a new driveway within 150 feet of freshwater wetlands. Public Hearing held March 21st 2017 - Public Hearing record was closed record was left open till April 25 for an updated survey and revegetation plan.

B.              John and Paula Easevoli

SCTM# 300-106-1-21

8 Bay View Avenue, Amagansett - Relief sought is a modification of the Board?s determination filed December 15th 1971. To delete the condition of the Board?s 1971 determination requiring an accessory structure containing a bedroom and bathroom to not contain a kitchen.

C.              William Shea

SCTM# 300-175-3-15

RELIEF SOUGHT: A Natural Resources Special Permit pursuant to Section 255-4-20 of the East Hampton Town Code and four variances are required for this application. Variances of approximately 9 ft. and 11 ft. from Section 255-11-72D of the Town Code are required to allow the residence to be outside of the Towns pyramid regulations by approximately 9 ft.  along the northern property line and approximately 11 ft. along the southern property line. Two variances of 42 ft. and 31 ft. are required to allow the decking and residence to be located 58 ft.  and 69 ft. from freshwater wetlands where 100 ft. setbacks are required, and any other relief necessary.

IX.              MINUTES APPROVAL:

A.              April 25th 2016

X.              RESOLUTIONS

A.              Adam Lindemann

In the Matter of the Application

 

            of                                                                                     DETERMINATION

 

ADAM LINDEMANN

SCTM # 300-33-1-2.2

_____________________________________

HEARING DATE: February 28, 2017

                                

PRESENT:                            JOHN P. WHELAN, Chair

                                          CATE ROGERS, Vice-Chair

DAVID LYS, Member

                                          ROY DALENE, Member

                                          THERESA BERGER, Member

                                         

ALSO PRESENT:              ELIZABETH BALDWIN, ESQ., Counsel to the Board

                                          DENISE SAVARESE, Legislative Secretary

                                          TIFFANY S. SCARLATO, ESQ., Attorney for Applicant

                                          BRIAN FRANK, Chief Environmental Planner

                                          JEREMY SAMUELSON, Concerned Citizens of Montauk

                                                                                   

                            FINDINGS OF FACT AND DETERMINATION OF THE BOARD

 

              The findings of fact and determination made herein are based upon the application, the evidence received at the public hearing before the Board, all documents contained in the Board's files and which were received prior to the close of the hearing, and the inspection and field report made by Member Berger of this of this Board.

 

A.              PROJECT DESCRIPTION:

 

1.              PURPOSE OF APPLICATION:  To construct a 450 sq. ft. swimming pool, 540 sq. ft. of patio and a 240 sq. ft. pergola on a parcel of land containing freshwater wetlands, coastal bluffs and beaches.

 

2.              RELIEF OR APPROVAL SOUGHT: A Natural Resources Special Permit (NRSP) pursuant to ? 255-4-20 and variances from ? 255-4-30 (minimum wetland setbacks) of the Town Code and any other relief necessary.  Variances of 19.1, 35? & 36.4? are required to construct the swimming pool, pool fence and pergola 80.8?, 65?and 63.6?, respectively, from the wetlands where a 100? setback is required. 

 

B.              PROPERTY SIZE & LOCATION

 

1.              LOT SIZE:  240,424 sq. ft. (total) 

2.              STREET LOCATION: 16 Cliff Drive

3.              CONTIGUOUS WATER BODIES: Atlantic Ocean

4.              HAMLET OR GEOGRAPHIC AREA: Montauk

5.              FILED MAP NAME: Map of Morrissey-Warhol

6.              FILED MAP NUMBER: 9321

7.              DATE OF MAP FILING: February 4, 1993

8.              BLOCK NUMBER IN FILED MAP: N/A

9.              LOT NUMBER IN FILED MAP: 2

10.              SUFFOLK COUNTY TAX MAP DESIGNATION:  #300-33-1-2.2

 

 

 

C.              ZONING INFORMATION

 

1.              ZONING DISTRICT: A10 Residence

2.              ZONING OVERLAY DISTRICT: CEOD Zone 1

                                                               

D.              SEQRA DETERMINATION

 

1.              SEQRA CLASSIFICATION:  Type II

2.              LEAD AGENCY:  N/A

3.              DETERMINATION OF SIGNIFICANCE:  N/A   

4.              DATE OF DETERMINATION:  N/A

 

E.              STANDARDS FOR BOARD REVIEW

 

1.              In order to be eligible for issuance of the requested Natural Resources Special Permit, applicant must show that the proposed action is compatible with the purposes of ?? 255-1-11 and 255-4-10 of the East Hampton Town Code and satisfies the criteria set forth in ?? 255-5-40 and 255-5-51 (Natural Resources Special Permit) of the Town Code.

 

2.              In order for this Board to grant applicant the requested area variance, applicant must demonstrate that the requirements of Town Law ? 267-b 3 have been met. The Board is to ?take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination, the Board shall also consider (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the grant of an area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.?  The Town Law also directs the Board, in granting area variances, to ?grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.?

 

3.              The standards set forth in Town Code ? 255-8-50 (D) paraphrase the requirements language of Town Law ? 267-b 3:

 

a)              the benefit to applicant from grant of the requested variance outweighs any detriment which grant of the variance will cause to the general health, safety, and welfare of the neighborhood or the Town as a whole; and

 

b)              the variances sought are the minimum variance necessary and adequate to alleviate the difficulty causing applicant to request an area variance, while at the same time preserving and protecting the character of the neighborhood and the general health, safety, and welfare of the Town as a whole.

 

4.              The Board finds that grant of the instant application will be consistent with the requirements of both Town Law ? 267-b and Town Code ? 255-8-50.

 

 

F.              ADDITIONAL FINDINGS AND CONCLUSIONS

 

1.              The subject premises are located along a private road and are improved with a one-story residence, four one-story cottages and three accessory buildings constructed prior to the adoption of zoning.  The most recent Certificate of Occupancy was issued in 2009 and the proposed improvements are depicted on the Saskas Surveying Company survey dated revised 6/21/16.  The property owner appears to have acquired the property in January, 2016 and an application for the proposed structures was approved by the New York State Department of Environmental Conservation (NYSDEC) on July 11, 2016.  The property was the part of a minor subdivision filed in 1993 that established the scenic easement over the pond and wetland in the western portion of the property.

 

2.              The swimming pool and patio have been proposed to north of one of the cottages and to the west of the circular driveway as shown on the survey. The pool equipment has been proposed at the north end of the patio and a drywell for the swimming pool has been proposed to the east of the pool, 100? from the closest wetlands as shown on the survey. 

 

3.              The property is located with an area of extreme environmental significance.  The property is bound to the west by Amsterdam State Park and Nature Conservancy lands to the north and east.  Wetlands and surface waters are located to the west, north and east of the improvements and comprise more than 68% of the property?s lot area.   These wetlands provide all of the benefits associated with high quality freshwater wetlands including the provision of critical habitat for wetland dependent species of plants and animals, the attenuation of floodwaters, removal of pollutants prior to surface water recharge, opportunities for scientific research and aesthetic appreciation.  The property is located within the Montauk ?Moorlands?; a unique, dwarf forest habitat that generally consists of a dense canopy of short trees and shrubs with an extensive complex of perched ponds, swamps and marshes, frequently interconnected by permanent and seasonal streams.  Montauk Point is the only location within the State of New York that contains moorland habitat, which has been designated as a Locally Significant Fish and Coastal Wildlife habitat in the Flora and Fauna component of the Comprehensive Plan.  These wetlands are known to contain a variety of rare plant and animal species, some of which are only found in this area of Montauk in New York State.

 

4.              The property is also located within the Montauk Moorland Scenic Area of Statewide Significance subunit.  The property is iconic not only for the cottages and their environmental and visual setting within the environment, but also for its history of ownership by artist Andy Warhol and the guests who have visited the property.   Because of the environmental and cultural significance of the property, it is critical that any new structures be compatible with the existing structures and that they prevent any adverse impacts to the wetlands on the property.  The location of the clearing boundary to the west of the cottages has been highly variable over the years and it is unclear to what extent, if at all, it is pre-existing to the 50? clearing setback from wetlands contained in the Town Code.   Currently the clearing boundary varies from about 35? to within a few feet of the wetland boundary.   The terrain is steeply sloped between the cottages the wetlands.  The establishment of a permanent vegetated woody buffer varying in width from 30? - 50? would augment all of the wetland values and would mitigate the impact of constructing the proposed structures within wetland setbacks.  A sketch with a suggested buffer location was provided by the Planning Department prior to the public hearing for the application. 

 

5.              The Board finds that granting the requested variances will not cause an undesirable change to the character of the neighborhood or create a detriment to nearby properties. The proposed pool will be located next to the existing cottages and the pergola is proposed over an existing patio. Neither of these structures will detract from existing character of this historic property.

 

6.              The Board finds that the benefit sought by the applicant cannot be achieved by some method feasible for the applicant to pursue other than the requested area variances. There are no alternative locations for the pool on the property due to the location of the wetlands and the existing driveway. The pergola is to be constructed over an existing patio and therefore there are no alternative locations for the pergola either.

 

7.              The Board finds that although the requested variances may be considered substantial, they are the minimum variances necessary and adequate to alleviate the difficulty causing the applicant to request the area variances. The pool variance request is 19% and the pergola will be located over an existing patio. While the pool variance may seem substantial, with the vegetative buffer will offset any impact to the wetlands and tucking the pool in with the existing structures will preserve the historic character of this property.

 

8.              The Board finds that granting the requested variances will not have an adverse effect or impact on the physical or environmental conditions in the neighborhood. The dwellings on the property are all in historically close proximity to each other a have all existed prior to zoning. The propose structures will fit within the existing structures and a vegetative buffer will mitigate any impact of constructing the proposed structures within wetland setbacks.

 

9.              The Board finds that the need for the variances is self-created. The Board finds however, that although the need for the requested variances is self-created, this need, although relevant to the Board?s decision does not preclude the granting of the requested variances.  Town Law ?267-b(3)(b)(5). 

 

10.              The Zoning Board finds the nature of the proposed use will be in harmony with and will promote the general purposes of the Town of East Hampton Zoning Law as described by ? 255-1-11 of the Town Code. 

 

11.              The Board finds the lot area to be sufficient, appropriate and adequate for the proposed improvements.

 

12.              The Board finds that the proposed use will not prevent the orderly and reasonable use of adjacent properties as no impact to adjacent properties is anticipated from the construction of the proposed project. No impact to adjacent properties is expected from the proposed improvements. As a condition of approval, applicant shall cease mowing the neighbor?s property in the southeastern corner of the property.

 

13.              The Board finds that the characteristics of the site are such that the proposed use may be introduced without undue disturbance or disruption to important natural features.  The proposed pool and pergola are tucked into the area of the existing cottages. A 30-50? buffer along the wetlands will provide a barrier to the wetlands from any construction impacts.

 

14.              The Board finds that the benefit to the applicant from grant of the requested variances outweighs any detriment which grant of the variances will cause to the general health, safety and welfare of the neighborhood and the Town as a whole.

 

 

G.              DISPOSITION OF APPLICATION

 

              For the reasons set forth herein, the Board makes the following determination with respect to the application:

 

1.              RELIEF OR APPROVAL GRANTED: A Natural Resources Special Permit (NRSP) pursuant to ? 255-4-20 and variances from ? 255-4-30 (minimum wetland setbacks) of the Town Code and any other relief necessary.  Variances of 19.1, 35? & 36.4? are required to construct the swimming pool, pool fence and pergola 80.8?, 65?and 63.6?, respectively, from the wetlands where a 100? setback is required. 

 

2.              DESCRIPTION OF WORK APPROVED:  To construct a 450 sq. ft. swimming pool, 540 sq. ft. of patio and a 240 sq. ft. pergola on a parcel of land containing freshwater wetlands, coastal bluffs and beaches.

 

H.              CONDITIONS OF APPROVAL

 

              Grant of the specified variances is specifically conditioned upon compliance with the conditions set forth in this section of the determination.  All improvements shall be made, built, or installed in accordance with the survey and plans described below.

 

1.              APPROVED SURVEY:    Survey prepared by David Saskas Surveying Company survey dated last revised June 21, 2017 and stamped received by the Zoning Board on

 

2.              APPROVED PLANNING DEPARTMENT SKETCH:  Dated February 27, 2017 as adapted from Saskas survey dated revised 6/21/16 and stamped received by the Zoning Board on March 3, 2017.

 

3.              ADDITIONAL CONDITIONS AND TIME LIMITATIONS:

 

a.              Applicant shall Project limiting fencing with staked straw bales shall be erected to limit land disturbance and prevent sedimentation of the wetlands in the location depicted on the approved survey labeled ?proposed edge of clearing? prior to the commencement and for the duration of construction activities.

 

b.              The Board, or their delegate, prior to the issuance of a building permit, shall inspect the project limiting fencing and straw bales for adequacy.

 

c.              A buffer consisting of indigenous, predominately woody vegetation shall be established and maintained adjacent to the wetlands as depicted on the approved planning department sketch above.

 

d.              The applicant shall submit a plan depicting the location, species, size and spacing that shall be approved by the Board or their delegate prior to the issuance of a building permit and inspected by the Board or their delegate prior to the issuance of a Certificate of Occupancy.

 

e.              All structures shall be situated at least 2? above the seasonal high groundwater table.

 

f.              The swimming pool shall utilize a chlorine reducing sanitation system and all pool water shall be discharged into a drywell located at least 100? from the wetlands as shown on the approved survey.

 

g.              An Article 24 Freshwater Wetland permit or statement of non-jurisdiction shall be obtained from the New York State Department of Environmental Conservation (NYSDEC) prior to the issuance of a building permit for this project.

 

h.              The applicant shall prepare and submit a declaration of covenants and restrictions, incorporating the provisions of the paragraph (c), (e) and (f) in standard form acceptable to and approved by Counsel to this Board.  The said declaration shall provide for its modification or termination only upon the approval of the East Hampton Town Zoning Board of Appeals, after a public hearing held on ten (10) days? notice.  Said declaration, after approval by counsel, shall be recorded at the Office of the Suffolk County Clerk.  Copies of the same, with proof of recordation shown thereon, shall be returned to the Town Clerk prior to the issuance of a building permit.

 

i.              Applicant shall cease mowing/clearing, as depicted on the approved survey, the property located to the east of the subject property.

 

j.              Applicants shall apply for and obtain a building permit no more than thirty-six (36) months from the date of filing of this determination.

 

k.              Applicants shall apply for and obtain a Certificate of Occupancy no later than twelve (12) months from the date of issuance of the building permit.

 

l.              A copy of the Natural Resources Special Permit and the approved survey and building plans shall be available on the parcel at all times.

 

I.              VALIDITY OF APPROVAL

 

If any condition of this determination is not met, or is not met within the prescribed time period, all approvals, permits, or authorizations granted hereby shall be deemed void and of no effect.

 

ALL CONCUR

 

John Whelan, Chair

Cate Rogers, Vice-Chair

David Lys, Member

Roy Dalene, Member

Theresa Berger, Member

 

cc:                Building Department

              Planning Department

              Joel Halsey, Lighthouse Land Planning