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 16, 2017
East Hampton, New York

 

 

I.              CALL TO ORDER

6:30 PM Meeting called to order on May 16, 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:

A.              Michael Dioguardi

The Agent for the Applicant has requested that the Public Hearing for Michael Dioguardi be adjourned to a later date.

III.              SCHEDULED PUBLIC HEARINGS:

A.              Roy Tucillo

              TIME:              6:50:00 PM              APPLICANT:              Roy Tucillo

              SIZE/LOCATION:              4,929 sq. ft., 88 South Emerson Ave., Montauk, Montauk Beach Devel               Corp., Sub 1;

              Fort Pond Business Section Blk 6; lots 7 & 16, Montauk (300-050-01-2525.1)

              DESCRIPTION:              To enlarge a pre-existing, non-conforming single-family residence situated within a

              commercial zoning district. The existing 629 sq. ft. (gross floor area) one-story

              residence is proposed to have a 260 sq. ft. first-floor addition, a 396 sq. ft. new

              second-story and an attached 354 sq. ft. second-story deck. Also proposed is an

              addition to the existing foundation to be accessed by bilco doors.

              RELIEF SOUGHT: A Natural Resources Special Permit (NRSP) pursuant to section 255-4-20 of               the Town Code. A variance from the maximum allowable building coverage of section 255-11-              10

              of the Town Code whereas a maximum of 15% is allowed and a total of 18.4% is

              proposed. A variance from section 255-11-10 of the Town Code whereas a side yard

              setback of 2.5 ft. is proposed and a minimum setback of 6.4 ft. is required. A variance of

              17 ft.  from the Pyramid Law of section 255-11-72 D of the Town Code. A 77.3 ft. variance

              from the minimum bluff crest setbacks of section 255-4-40 B of the Town Code

              whereas a minimum setback of 100 ft. is required and a setback of 23.7 ft. is proposed for

              the second story additions. A 49 ft.  variance from the minimum bluff crest setbacks of

              section 255-4-40 B of the Town Code whereas a minimum setback of 100 ft. is required

              and a setback of 51 ft. is proposed for the first story additions and any other relief that

              may be necessary.

              ZONING DISTRICT:              RS- Resort VE velocity flood zone, el. 17

              SEQRA CLASS:         Type II

i.              Technical Analysis Memorandum

Technical Analysis Memo             

              Lead Agency:              N/A

              Planner:              Eric Schantz

              Date completed:              February 14, 2017                            Site Plan                            X

              SEQRA class:              Type II              Sub Waiver

              Physical Location:              88 South Emerson Ave.              Subdivision

              School District:              Montauk              Special Permit              X

              Zoning District:              RS: Resort              Zone Change

              Overlay District:    Coastal Erosion Overlay District,

                                              Flood Hazard Overlay District              Variance                             X

              Tax Map Number: 300-050-01-25.1             

                                                    Applicant: Roy Tucillo              

                                          c/o Jonathan Tarbet, Esq.                                            Natural Resources

                                          Tarbet & Lester, PLLC                                            Special Permit                  X

                                          132 North Main Street                                            Other: 

                                          East Hampton, NY 11937

             

                                          Telephone:                            (631) 907 - 3500

                                          FEMA ZONE:              VE el. 17

                                          Soil Type:              Bc: Beaches, SdA: Scio silt loam, sandy substratum, 0 to 2 percent slopes

              Map of Property:              Montauk Beach Devel Corp., Sub 1; Fort Pond Business Section Blk 6; lots 7 & 16

              Size of Parcel:              4,929 sq. ft. (excluding areas seaward of dune crest)

 

Project Description: 

To enlarge a pre-existing, non-conforming single-family residence situated within a commercial zoning district. The existing 629 sq. ft. (gross floor area) one-story residence is proposed to have a 260 sq. ft. first-floor addition, a 396 sq. ft. new second-story and an attached 354 sq. ft. second-story deck. Also proposed is an addition to the existing foundation to be accessed by bilco doors.

 

Relief Requested:

A Natural Resources Special Permit (NRSP) pursuant to section 255-4-20 of the Town Code. A variance from the maximum allowable building coverage of section 255-11-10 of the Town  Code whereas a maximum of 15% is allowed and a total of 18.4% is proposed. A variance from section 255-11-10 of the Town Code whereas a side yard setback of 2.5 ft. is proposed and a minimum setback of 6.4 ft. is required. A variance of 17 ft. from the Pyramid Law of section 255-11-72 D of the Town Code. A 77.3 ft. variance from the minimum bluff crest setbacks of section 255-4-40 B of the Town Code whereas a minimum setback of 100 ft. is required and a setback of 23.7 ft. is proposed for the second story additions. A 49 ft. variance from the minimum bluff crest setbacks of section 255-4-40 B of the Town Code whereas a minimum setback of 100 ft. is required and a setback of 51 ft. is proposed for the first story additions and any other relief that may be necessary.

 

Property Conditions and History:

 

The property is zoned RS: Resort and is situated in downtown Montauk immediately adjacent to the Atlantic Ocean. The property contains a portion of the primary dune crest which protects downtown Montauk from the Ocean and the property contains duneland soils and beach vegetation. The single-family residence was built before the adoption of zoning in 1957. The neighboring properties all contain Resort or Transient Motel uses.

 

The subject parcel contains a single - family residential dwelling within the commercial RS: Resort Zoning District of downtown Montauk.  It is extremely constrained for a residentially-developed lot at 4,929 sq. ft. It is entirely seaward of the Coastal Erosion Hazard Line and is within FEMA flood zone VE (el. 17). At its southern end, the lot contains a roughly 40 ft. long portion of the primary dune which buffers downtown Montauk from the Atlantic Ocean.

 

The portion of the dune on the subject parcel is part of a roughly 450 ft. uninterrupted section of the dune that is bordered to the west and east by public access staircases at South Emery Street and South Embassy Street, respectively. This portion of the dune was part of the recent Army Corp of Engineers coastal protection project and has been reinforced with sand and geotextile bags, which runs the length of downtown Montauk. This dune section has been the subject of three (3) emergency dune restoration permits for the property to the immediate west which contains the Ocean Beach Motel (SCTM#300-50-1-27.1). These permits were issued in 2009, 2011 & 2012

 

The most recent certificate of occupancy reads:

5/13/03-C.O.20166-NEWTOWN & HELEN ERICKSON - ONE-STORY, FRAME, ONE FAMILY RESIDENCE HAVING ONE KITCHEN ONLY WITH SLATE PATIO, ALL ERECTED BEFORE THE ADOPT. OF ZONING.

 

 

Planning Department Analysis and Recommendations for the Boards Consideration:

 

The primary planning concern on this lot is the impact of coastal storms on the primary dune, and in turn the impact that this has on the integrity of the structures on the lot and the prudency of allowing further development to occur. The entirety of the existing residence and the proposed addition is within 100 ft. of the primary dune crest line, the minimum required setback under the Town Code. It appears by virtue of the fact that the existing residence is primarily situated on the primary dune itself that the first floor can meet the minimum required 19 ft.  AMSL height as per FEMA regulations.

 

As evidenced by the aforementioned flood and coastal erosion area designations this parcel is situated in an area of extreme vulnerability to direct wave action as the result of coastal storms. The Town and Federal efforts to reinforce the primary dune and protect this and other shoreline properties may reduce the potential for damage to on-site structures but can never truly eliminate them for these properties as it is simply a matter of proximity to the Atlantic Ocean that makes them vulnerable. The subject parcel is no exception and the Planning Department, in principal, advises against any projects that would represent further development in such an area of extreme vulnerability.

 

The existing residence is identified as 629 sq. ft. whereas the additions would bring it to 1,184 sq. ft., a 188% increase. The Town Code prohibits the ZBA from granting variances that would increase the size of a non-conforming building by > 50%. However, this section of the Code also has an exemption that allows the ZBA to grant such variances where the structure would not exceed 1,200 sq. ft. of gross floor area, meaning that the ZBA can grant the requested relief, if they choose to do so.

 

The proposed project represents a substantial expansion as the same is defined in section 255-1-20 of the Town Code. Although the project has been designed to include additions that are not situated in greater proximity to the bluff crest than the existing extent of the southernmost outer wall of the residence or the adjacent deck, it does represent a significant change to a 60+ year old structure. Included in the project is the removal of an existing 27 ft. wide wall of the foundation and increase in size of the foundation of by roughly 270 ft. sq. ft., a new second-story to what was previously a one-story building, and a first-story/floor addition.

 

The Planning Department questions the appropriateness of allowing a residence which is grossly non-conforming to bluff crest setbacks and which is situated on a lot the entirety of which is in an area of extreme vulnerability to storm damage to be expanded, particularly when the proposed project would require five (5) variances, most of which substantial in scale, from the dimensional regulations of the Town Code. With the exception of the removal of the single on-site cesspool and its replacement with a new two (2) pool system, it appears that the potential adverse environmental impacts of the development on the parcel will not diminish/improve.

 

On the contrary, enlargement of the residence would appear to make it less feasible to move on-site development upland. Sea level rise and future erosion is almost certainly going to increase in the coming years based upon various scientific models and the history of this area of coastline. This property, although small and therefore significantly constrained, has enough area upland of the residence's existing footprint to relocate it in its entirety to a more conforming location, with respect to bluff crest setbacks. Such a relocation would allow the portion of the primary dune in the seaward areas of the property to be greater reinforced with sand, which would increase protection of not only development on the subject parcel but also downtown Montauk as a whole.

 

For the reasons above, the Planning Department recommends denial of the requested variances for the project as it is currently proposed. It does not appear to be in keeping with the intentions of the Town Code to allow a substantial expansion of a structure which is grossly non-conforming to bluff crest setbacks and which is in an area of extreme vulnerability to storm and flood damage when the viable alternative of relocating development to an area of greater setback is available.

 

Additionally, although the project has been submitted as additions to an existing structure, the age of the structure (60+ years) and the substantial additions and modification of the foundation suggest that this may not technically be feasible and that a tear-down/rebuild would be necessary. In the past, the ZBA has required that the applicants submit an engineer's or architects report that determines if the structures on the property are structurally sound enough to be able to build the additions onto them. The ZBA should require this report at a minimum if the requested relief is to be granted. Should a complete tear-down of the building be required for engineering reasons then this grants even more validity to requiring it to be relocated further upland at this time.

 

The Zoning Board of Appeals will ultimately need to determine if the application can meet the variance standards of section 255-8-50 D of the Town Code. In particular, whether the benefit to the applicant outweighs any detriment to the general health, safety and welfare of the neighborhood, and whether the requested variances are the minimum necessary.

 

 

Recommended Project Conditions:

 

1.              Pursuant to section 6 NYCRR Part 505 (NYS Department of Environmental Conservation) the project will need a Coastal Erosion Management Permit. Should the ZBA approve the requested relief then obtaining DEC approval should be made a condition of ZBA approval.

 

2.              Submission of an engineer's or architects report that determines if the structures on the property are structurally sound enough to be able to build the additions onto them.

 

3.              Installation of project limiting fencing along the southern edge of the deck prior to the issuance of a building permit.

 

 

 

 

B.              Herrmann

              TIME:              7:10:00 PM              APPLICANT:              Herrmann

              SIZE/LOCATION:              40,000 sq. ft. total, 26 Seaside Ave, Map No. 1518; Seaside Shores               Lots 28 & 29,

              Montauk (300-032-07-06)

              DESCRIPTION:              To construct a 2,376 sq. ft. two story residence with 616 sq. ft. of first and              

              story decks, a front porch and a new sanitary system on a parcel of land with

              freshwater wetlands.

              RELIEF SOUGHT:              A Natural Resources Special Permit (NRSP) pursuant to  Section 255-4-              20, three variances

              from  Section 255-3-30 (wetland setbacks), and a variance from  Section 255-11-72D of the               Town Code. A 3.5 ft. and a 38.1 ft. variances are required respectively to construct the               decks               and retaining wall 96.5 and 61.9 ft. from the wetland where a minimum 100 ft.               setback is               required. A 59.4 variance is required to install the sanitary system 90.6 ft. from               the wetlands where a 150 ft. minimum setback is required. A 4 ft. 6 in pyramid variance is

              requested.

              ZONING DISTRICT:              B Residence,  Zone X Flood Zone

              SEQRA CLASS:              Type II

 

Previously scheduled for March 28th 2017

i.              Technical Analysis Memorandum

Technical Analysis Memo             

              Lead Agency:              (not applicable)

              Planner: Lisa D'Andrea             

              Date completed:              December 13, 2016              Site Plan

              SEQRA class: Type II              Sub Waiver

              Physical Location:              26 Seaside Ave              Subdivision

              School District:              Montauk              Special Permit

              Zoning District:              B Residential              Zone Change

              Overlay District:                  Variance             

              Tax Map Number: 300-032-07-06              Natural Resources

     Applicant:                Herrmann                                                                  Special Permit   XX

                     c/o Susan Brierley                                                                 

                          Due East Planning

                              P O Box 4144

                     East Hampton, NY, 11937                                                

                                                                                                                                                                                        

              Telephone: (631)604-6288

              FEMA ZONE: X Flood Zone             

              Soil Type: Montauk Fine Loamy Sand, 8-15% slopes (MfC); Bridgehampton silt loam, till substratum 2-6% slopes (BhB)             

              Map of Property:              Map No. 1518; Seaside Shores Lots 28 & 29

              Size of Parcel: 40,000 sq. ft. total             

 

Project Description:  To construct a 2,376 sq. ft. two story residence with 642 sq. ft. of first and second story decks, a 513 sq. ft. roof deck , a 66 sq. ft. balcony over the front entryway and a new sanitary system on a parcel of land with freshwater wetlands.

 

Relief Requested: A Natural Resources Special Permit (NRSP) pursuant to  Section 255-4-20, three variances from 255-3-30 (wetland setbacks), and a variance from  Section 255-11-72D of the Town Code. Variances of 3.5 ft. and 38.1 ft. are required respectively to construct the decks and retaining wall 96.5 and 61.9 ft. from the wetland where a minimum 100 ft. setback is required. A 59.4 variance is required to install the sanitary system 90.6 ft. from the wetlands where a 150 ft. minimum setback is required. A 4 ft. 6 in pyramid variance is requested.

 

Property and History:

The parcel  is vacant and comprises approximately 40,000 sq. ft., is situate on seaside Ave. in Montauk, is in B Residential zoning and the soil type present on this parcel is Fine Loamy Sand  and Bridgehampton silt loam, till substratum as per Suffolk County Soil survey. The owner purchased the property in July of 2015.

 

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

 

The State Historic Preservation Act Determination concluded that the proposed project will not impact registered, eligible or inventoried archaeological sites or historic structures.

The premises are highly constrained by freshwater wetlands that occur in the southern and northern portions of the property. The property is included in the Peconic Estuary Montauk Critical Natural Resources Area (CNRA) and is in the Montauk Watershed.

This area of Montauk is part of a complex watershed that eventually discharges into the southern end of Lake Montauk, which is closed for beach bathing and shell fishing because of elevated levels of coliform bacteria. The presence of coliform bacteria are indicators of water pollution.  The soils throughout the Seaside Avenue area exhibit poor drainage and the region is prone to chronic flooding and drainage problems.  The wetlands on the premises play an important role in the retention of the floodwaters that contribute to the poor drainage of the area as well as the dissipation of pollutants and nutrients that eventually make their way into Lake Montauk.

 

It appears that the applicant has acquired a New York State Department of Conservation (NYSDEC) permit to construct a single family dwelling with decks and a driveway with a bridge over the wetland to access Seaside Ave. The restrictions in the permit are that the bridge ?must be either a single span or constructed on pilings. The abutments must be located outside of the wetland as shown on the approved plans. If pilings are to be used, the minimum number of pilings must be used. No fill besides the pilings is permitted in the wetland. Decking of bridge must be a minimum of 18 ft. above the wetland and surface with an open grate material that allows for light penetration.

 

On December 2, the Board received the 26 Seaside Ave. Driveway /Bridge Plan by TF Planning PLLC dated November 22, 2016. The Town Engineer has examined the plans and recommends that a sign be placed at the bridge entrance posting the maximum load capacity of the bridge.  He also recommended that the driveway should not be crushed bluestone because of the proximity to the wetland. He recommends the driveway be composed of  in. quartz gravel.

The Board should take note that the proposed retaining wall could be 10 ft. in height and the construction of the driveway will require a substantial amount of grading.  Great care to protect the wetlands in the north that are subject to siltation from the grading and construction of the retaining wall and driveway should be taken. The staked strawbales and siltation fencing needs to be firmly installed and maintained over the course of the construction process.

 

The Gross Floor Area of the proposed house is 2,376 sq. ft.  The building coverage is 1,458 sq. ft. Total lot coverage is 4,310 sq. ft. or about 16.5%.  It appears that all structures have been positioned so as to minimize the variances required. The house meets the minimum 100 ft. setback. The decks, retaining wall and sanitary system require variances. The sanitary system requires a substantial variance of 59.4 ft.

 

The applicant has proposed a 15,000 sq. ft. scenic easement  150 ft. deep and 100 ft. in width that would cover the wetland in the southern portion of the property and a provide a substantial buffer for the wetlands as well. The Planning Department applauds this scenic easement as mitigation for the project but it also recommends that a scenic easement 70 ft. in depth and 82 ft. in width be placed over the wetlands in the northern portion of the property. These scenic easements will help to assure the future protection of the wetlands by establishing protected vegetative buffers around them.  They will help offset the intensity of the use of the parcel and will provide multiple environmental benefits.  The vegetative buffer within the scenic easements will provide a quality habitat for wildlife.  The vegetation within the scenic easements will help to intercept non-point pollutants such as sediments, suspended and dissolved solids, nutrients associated with fertilizers and other chemical compounds that adversely affect the water quality.  The root system of the vegetation helps to dissipate water during periods of flooding.

The Board must determine if the project complies with the Natural Resources Special Permit standards of  Section  255-5-40 in order to issue a NRSP permit.

 

The applicant must demonstrate compliance with the Variance standards of  Section 255-8-50 of the Town Code in order to be eligible for the issuance of the requested variances.  The Board must determine whether the variances sought are the minimum necessary.

 

Recommended Project Conditions:

 

a.              Project limiting fencing with staked straw bales should be erected to limit land disturbance and prevent sedimentation of the wetlands in the location depicted on the Planning department sketch dated December 1, 2106.

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

c.              The clearing of vegetation and grading should be strictly limited to a boundary established by the Board and the elevations depicted on the approved survey.

d.              Scenic easements shall be established over the wetlands as depicted on the Planning department sketch dated December 1, 2106. The easements, along with the approved survey depicting the location of scenic easement shall be submitted in acceptable form to the Zoning Board of Appeals Office for approval by Counsel to this Board, prior to the issuance of a Building Permit. The Town Board must accept and the applicant must file with the Suffolk County Clerk's Office the scenic easement.  The original easement shall be returned the East Hampton Town Clerk's Office. Proof of filing must be presented to the Zoning Board before a Certificate of Occupancy can be issued.

e.              The applicant shall prepare and submit a declaration of covenants and restrictions, incorporating the provisions of the appropriate paragraphs of this determination 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.

 

f.              The house   shall be furnished with gutters and leaders to direct stormwater from roofs into one or more catchment basins. Said catchment basin or basins shall have a combined volume (in cubic feet) equal to the surface area of the roof (in square feet), divided by six. Said catchment basin shall be made available for inspection by the building inspector prior to backfill.

g.              All structures should be situated at least 2 ft. above the seasonal high groundwater table.

h.              The driveway composition and any drainage structures should be reviewed and approved by the Town Engineer prior to the issuance of a building permit.  The completed driveway and drainage structures should be inspected by the Town Engineer prior to the issuance of a Certificate of Occupancy.

i.              An Article 24 Freshwater Wetland permit should be obtained from the New York State Department of Environmental Conservation (NYSDEC) prior to the issuance of a building permit for this project.

 

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

C.              Cynthia Rowley

TIME:              7:30:00 PM              APPLICANT:              Cynthia Rowley

SIZE/LOCATION:              20,319 sq. ft., 69 Seaside Avenue, Map of Seaside Shores; Map # 1518; Blk                             602; lot

              30, Montauk (300-032-04-20)

DESCRIPTION:              To demolish an existing one-story residence and sanitary system and construct a new

              1,375 sq. ft. two-story residence with 1st & 2nd floor decking and new sanitary system

              on a parcel of land containing freshwater wetlands.

RELIEF SOUGHT:              A Natural Resources Special Permit (NRSP) pursuant to 255-4-20 and variances               from

              Section 255-4-40 (Minimum wetland setbacks) of the Town Code and any other relief

              Necessary. The following wetland setback variances are required: (1) & (2)

              Variances of 90 ft. and 95 ft. are required to construct the residence and decking 10 ft. and               5 ft. respectively from wetlands where a 100 ft. setback is required; (2) a 144 ft. variance is

              required to install a new sanitary system 6 ft.  from wetlands where a 150 ft. setback is

              required and (3) clearing is proposed adjacent and within the wetlands where a 50 ft.

              setback is required.

              ZONING DISTRICT:              B Residence, AE Flood Zone, elevation 14' & X Flood Zone

              SEQRA CLASS:              Type II

 

Continuation of a Public Hearing previously held March 28th 2017

i.              Technical Analysis Memorandum

Technical Analysis Memorandum

              Lead Agency:              (not applicable)

              Planner:              Brian Frank

              Date completed:              1/30/2017              Site Plan

              SEQRA class:              Type II              Sub Waiver

              Physical Location:              69 Seaside Avenue              Subdivision

              School District:              Montauk              Special Permit

              Zoning District:              B Residence              Zone Change

              Overlay District:              Variance: XX

              Tax Map Number: 300-032-04-20              Natural Resources

              Applicant:              Cynthia Rowley              Special Permit: XX

              C/o Joel Halsey              Other:

              PO Box 5030

              Montauk, NY  11954

              Telephone:              (631) 668-7332

              FEMA ZONE:              AE Flood Zone, elevation 14' & X Flood

              Zone

              Soil Type:              Bridgehampton silt loam, till substratum, 2-6% slopes (BhB)

              Map of Property:              Map of Seaside Shores; Map # 1518; Blk 602; lot 30

              Size of Parcel:              20,319 sq. ft.

 

Project Description:

To demolish an existing one-story residence and sanitary system and construct a new 1,375 sq. ft. two-story residence with 1st & 2nd floor decking and new sanitary system on a parcel of land containing freshwater wetlands.

 

Relief:

A Natural Resources Special Permit (NRSP) pursuant to 255-4-20 and variances from  255-4-40 (Minimum wetland setbacks) of the Town Code and any other relief necessary.                The following wetland setback variances are required: (1) & (2) Variances of 90 ft. and 95 ft. are required to construct the residence and decking 10 ft. and 5 ft. respectively from wetlands where a 100 ft. setback is required; (2) a 144 ft. variance is required to install a new sanitary system 6 ft. from wetlands where a 150 ft.  setback is required and (3) clearing is proposed adjacent and within the wetlands where a 50 ft. setback is required. 

 

 

Property Conditions and History:

The property is currently improved with a 988 sq. ft. one-story residence with 180 sq. ft. of decking that was constructed pursuant to Zoning Board review in 1976 according to the Certificate of Occupancy issued in 1976.  The most recent survey, depicting the existing conditions and proposed improvements was prepared by James Walsh Land Surveyor dated revised 10/11/16, stamped received 10/27/16 and the corresponding building plans were prepared by Lindal Cedar Homes (7 pgs) also received by the Board on 10/27/16.  Also received on 10/27/16 is a site plan of the proposed improvements and sanitary system details prepared by the Raynor Group engineering firm (dated revised, 10/04/16).  This project requires approvals from the New York State Department of Environmental Conservation (NYSDEC) and the Suffolk County Department of Health Services (SCDHS).  

 

 

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

The property is located on the northwestern corner of Seaside Avenue and Miller Avenue, both unpaved private roads.  With the exception of the existing driveway location, the residence is completely surrounded by freshwater wetlands located within 15 ft. of the structure.  The sanitary system is located southwest of the residence and encroaches several feet into the delineated wetland.  A small deck in the southwestern corner of the property, constructed without permits is proposed to be removed.  The subject premises are located within one of the most complex and hydraulically active sub-watersheds within the Lake Montauk watershed.  Surface and groundwater from the southern portion of the West Lake Drive area north of Montauk Highway flows south and east through a complex network of streams, marshes and swamps to the southeast along either side of Seaside Avenue, and then from west to east along Miller Avenue where some of the water seeps through the coastal bluff south of Miller towards the ocean; but much of the water flows north through wetlands and streams within the densely developed Ditch Plains community and discharges in the southern end of Lake Montauk.   The southern end of Lake Montauk is closed to shellfishing and as a bathing beach due to elevated levels of coliform bacteria that are used as indicators of water pollution. 

 

This property is among the most severely constrained by wetlands as any improved property reviewed by the Zoning Board over the past twenty years or more.  Any redevelopment of the property should establish a rational basis for an increase in the size of the residence and include a high level of short term and long term mitigation to protect the wetlands and prevent an increase in flooding in this chronically flood prone neighborhood.   The 988 sq. ft. residence contains a roof overhang that increases the footprint of building coverage to 1,288 sq. feet.   The proposed footprint (coverage) comprises 868 sq. ft. (10.1%) and nominally increases the wetland setbacks on all sides except the southeast corner where a deck is proposed.   The existing total coverage, which presumably includes the non-permitted deck, is proposed to be reduced from 1,823 sq. ft. to 1,206 sq. feet (14%).   The new residence is proposed on a slab foundation and the 1,375 sq. ft. residence comprises a roughly 39% gross floor area increase over the existing 988 sq. ft. house. 

 

It is the Planning Department's opinion that footprint reduction, along with other mitigation measures, makes the application reasonable for the Board to consider the proposed size increase.  However, the environmental constraints of the property are extreme and unique; the potential for severe short and long term adverse impacts to the wetlands is very high.  The wetlands completely surround the residence with very limited room for construction equipment and workers.  The location of the property on the corner of an unpaved, private road increases the constraints for the staging of construction materials and equipment.  The greater the duration that construction activities occur on the property, the greater the likelihood of significant wetland impacts.   The high clay content of the soils increases the potential for soil compaction to further decrease the permeability of the soils, increasing the flooding potential.

 

Test hole data from the new sanitary system location indicates that clean sand, required for proper sanitary system installation, is located 49 ft. below grade. If nearly 50 vertical ft. of poorly drained soils needs to be excavated, contained and removed from the property before the shaft can be backfilled with clean sand, detailed provisions explaining how this will be accomplished without encroaching beyond the existing clearing limits and into the wetlands, needs to be provided.  The test hole location indicates standing water at a depth of 6 ft.  below the surface (elevation 9.2 ft. above sea level) but significant standing water within the wetlands suggests the potential for a water table much closer to the surface in other portions of the property.  The application proposes to remove the existing sanitary system and this property may be a better candidate for abandoning the sanitary system in place and in accordance with SCHHS regulations to minimize the extent of excavation in such proximity to the wetlands. 

 

The Planning Department recommends establishing a scenic easement in the eastern portion of the property to facilitate the conservation of their multiple values in perpetuity.  A tentative boundary for a potential easement will be submitted by the Planning Department prior to the public hearing for the application.  The new house has proposed a slab foundation which limits the extent of excavation of soils that would be associated with a crawl space.  Neither the survey nor building plans indicate the proposed first floor elevation of the residence, required by FEMA regulations to be a minimum elevation of 16 feet.    The survey indicates that elevations beneath the proposed house range from 13 ft.  to slightly more than 15 feet.  No proposed grading is indicated around the proposed improvements and grading around any new residence would affect the rate and volume of water entering the wetlands.  Although the property is not located in a Velocity Flood Zone as defined by FEMA, it may be an excellent candidate to place the residence on an open piling foundation to the reduce the need for grading around the foundation, allow the flow of water when necessary to allow the potential use of trench drains for drainage as an alternative to subsurface drywells.

 

The Planning Department strongly encourages the Board to obtain a detailed construction protocol, time line for anticipated construction activities and a detailed grading and drainage plan prepared by a licensed design professional prior to any approval.  Ideally, this information should be provided to the Board well in advance of the public hearing.  The construction protocol should provide a detailed plan for removing the existing residence, abandoning or removing the existing sanitary system, construction of the residence and preparing the location of the new sanitary system for installation.  The grading and drainage plan should clearly depict all proposed grades, all drainage structures, their design volumes and the separation to the groundwater table of all subsurface structures.  The drainage plan should also address an existing culvert currently located south of the residence.  The high groundwater table, volume of flowing water and fine texture of the soils result in a high potential for sedimentation of the wetlands as long as intensive construction activities are occurring.  Consequently, the construction protocol should include an anticipated time line of construction activities and provisions for protecting the wetlands if construction activities are suspended for a significant length of time. The applicant should update the Board regarding the status of the applications with the NYSDEC and the SCDHS prior to the public hearing. 

 

 

Summary of Mitigation:

a.              A construction protocol that clearly details the demolition of the residence and the construction of the proposed residence and sanitary system should be submitted to the Board prior to the public hearing for this application.  An acceptable construction protocol should be incorporated into the Board's conditions of approval.

b.              A grading and drainage plan that, prepared by a licensed design professional, should be submitted to the Board prior to the public hearing and incorporated into the Board's conditions of approval.

c.              Project limiting fencing consisting of 4 ft. plastic safety or snow fence shall be erected concurrent with the clearing boundary approved by the Board adapted from the approved survey or site plan to limit the clearing of vegetation and land disturbance.  The fencing shall be maintained for the duration of construction activities and replaced as necessary if damaged, dislodged or upon request of the Building Department or a delegate of the Zoning Board of Appeals. 

d.              Sediment control fencing consisting of staked straw bales within the perimeter of the project limiting fencing referenced above to prevent sedimentation of the wetlands. The fencing shall be installed and maintained in accordance with the New York State Standards and Specifications for Erosion and Sediment Control manual prior to the commencement and for the duration of construction activities.  The fencing shall be repaired or replaced as necessary to maintain proper function. 

e.              Prior to the issuance of a building permit, the Board, or their delegate, shall inspect the project limiting and straw bale fencing for proper installation.

f.              The clearing of vegetation and the filling, grading or re-contouring of the property should be strictly limited to the boundaries established by the Board and any proposed grading depicted on a survey or engineer's grading plan approved by the Board.

g.              A scenic easement shall be placed over the wetlands in the eastern portion of the property.  The easement, along with the approved survey depicting the location of scenic easement shall be submitted in acceptable form to the Zoning Board of Appeals Office for approval by Counsel to this Board, prior to the issuance of a Building Permit. The Town Board must accept and the applicant must file with the Suffolk County Clerk's Office the scenic easement.  The original easement shall be returned the East Hampton Town Clerk's Office. Proof of filing must be presented to the Zoning Board before a Certificate of Occupancy can be issued.

h.              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.              The sanitary system shall be installed in the location and to the specifications indicated on the approved survey and engineering site plan under the direction of the Suffolk County Department of Health Services.

j.              A revegetation plan that indicates the locations, species, size and spacing shall be submitted to the Board for approval prior to the issuance of a building permit.  The plan shall be implemented and inspected by the Board or their delegate prior to the issuance of a Certificate of Occupancy.

k.              All structures should be situated at least 2 ft.  above the seasonal high groundwater table.

l.              The driveway should be composed of only of a clean, local, water-pervious quartz gravel surface.

m.              The applicant shall prepare and submit a declaration of covenants and restrictions, incorporating the provisions of the appropriate paragraphs of this determination 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. 

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

o.              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.              Bonnie Maslin

SCTM# 300-24-1.11

307 Kings Point Road, Springs

Extension of Time Request for Building Permit and a Certificate of Occupancy.

B.              Terrence Connors

SCTM# 300-106-1-29.4

50 Bay View Avenue

Amagansett

 

Request for an Extension of Time for Building Permit and a Certificate of Occupancy

C.              Sean MacPherson

SCTM# 300-32-7-31

15 Miller Avenue, Montauk

 

Request for an Extension of Time for the purposes of receiving a Certificate of Occupancy

VI.              POSSIBLE ADMINISTRATIVE APPLICATIONS:

VII.              BOARD DETERMINATIONS:

A.              Seth Leist

SCTM# 300-176-1-18

8 Pine Way

Amagansett

 

Letter received from Farrell & Fritz requesting a re-opening of a Public Hearing based on new information concerning Septic system.

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.              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. Public Hearing held April 25th 2017 - Public Hearing and written record was closed.

Board tabled making a Determination at May 9th 2017 Zoning Board Work Session

C.              Gary Symansky

SCTM# 300- 28-2-26

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 Section 255-4-30 of the Town Code, is required to allow the shed to remain 96 ft. from freshwater wetlands where a 100 ft. setback is required, and any other relief necessary. Project description to allow an approximately 96 sq. ft. shed to remain within jurisdiction and setbacks of freshwater wetlands. Public Hearing held May 2nd 2017 Public Hearing and record closed.

Board tabled making a Determination at May 9th 2017 meeting

D.              John Hall & Anne Gilchrist Hall

SCTM# 300-200-300-3-22 & 300-201-1-5

29 Association Road & 7 Piersons Way - An Appeal of the Principal Building Inspector pursuant to Section 255-8-35A (1) of the Town Code. Appellants seek to challenge the Determination dated October 20th 2015 finding that the two properties are not merged and remain two single and separate lots. Appeal heard April 25th 2017 - Public Hearing closed - record left open till May 9th 2017 for Mr. Kelley to respond to Affidavits submitted.

Mr. Kelley has submitted his response into the record

 

 

IX.              MINUTES APPROVAL:

A.              Minutes of May 9th 2017

X.              RESOLUTIONS

A.              Nilson W. Novoa

ZONING BOARD OF APPEALS

TOWN OF EAST HAMPTON

_____________________________________                                  

             

In the Matter of the Application

 

            of                                                                                                   DETERMINATION

 

NILSON W. NOVOA

SCTM # 300-10-3-23

_____________________________________

HEARING DATE: March 21, 2017

                                

PRESENT:              JOHN P. WHELAN, Chair

DAVID LYS, Member

                                          ROY DALENE, Member

                                          THERESA BERGER, Member

                                         

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

                                          LISA D'ANDREA, Planning Department                           

                                          NILSON NOVOA, Applicant

                                         

                                                                     

                            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 Board.

 

A.              PROJECT DESCRIPTION

 

1.              PURPOSE OF APPLICATION: 

              To allow a 128 sq. ft. shed and deck to remain within side yard setbacks.

 

2.              RELIEF OR APPROVAL SOUGHT: Two variances from Section 255-11-10 (Dimensional regulations) and one variance from  Section 255-11-7D (Pyramid Law) and any relief necessary. A 7.7 ft. and a 5.8 ft. variance are required to allow a shed and deck respectively to remain 2.3 ft. and 4.2 ft. from the side yard where a minimum 10 ft. setback is required. A 5.7 ft. pyramid variance is required to allow the shed to remain.

 

B.              PROPERTY SIZE & LOCATION

 

1.              LOT SIZE:  7,500 sq. ft. (total) 

2.              STREET LOCATION: 48 Pinetree Dr.

3.              CONTIGUOUS WATER BODIES: N/A

4.              HAMLET OR GEOGRAPHIC AREA: Montauk

5.              FILED MAP NAME:  Map of Culloden Shores, No.2

6.              FILED MAP NUMBER: 4019

7.              DATE OF MAP FILING: April 23, 1964

8.              BLOCK NUMBER IN FILED MAP: N/A

9.              LOT NUMBER IN FILED MAP: 182

10.              SUFFOLK COUNTY TAX MAP DESIGNATION:  #300-10-3-23

 

C.              ZONING INFORMATION

 

1.              ZONING DISTRICT: B Residence

2.              ZONING OVERLAY DISTRICT: N/A

 

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 for this Board to grant applicant the requested area variance, applicant must demonstrate that the requirements of Town Law Section 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.?

 

2.              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.

 

3.              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 in Culloden Shores. The property is sub-standard with regard to lot size and frontage within B zoning. The 7,500 sq. ft. lot is a 75 ft. by 100 ft. rectangle.  It is not an irregularly shaped parcel. The size and width of the property limit the type and locations of structures that can be constructed in compliance with zoning setbacks.

 

2.              It appears the original house was constructed in 1965. The most recent Certificate of Occupancy (CO) was issued in 1978.  It appears the current owner and applicant acquired the property in 1986. In 1996 a building permit was issued for a 70 sq. ft. addition, a 24 sq. ft. shed addition and 128 sq. ft. shed. In 2001 another building permit was issued for two additions totaling 776 sq. ft. and a 468 sq. ft. roof deck.  The records indicate that both the 1996 and 2001 building permits have been renewed. The applicant, it appears, attempted to update the CO and the non-compliance with zoning setbacks was discovered. All existing structures are depicted on a Barylski Land Surveying Survey dated January 13, 2016.

 

3.              It appears that the applicant did obtain building permits for the structures he intended to construct. However, how these structures were built in non-conforming location is unclear.

 

Shed

4.              The majority of the Board finds that granting the requested variance to allow the shed to remain in place, will not cause an undesirable change to the character of the neighborhood or create a detriment to nearby properties. The shed has been in the same location since 1996 with no complaints. Due to the size of the lot, no conforming alternatives exist for this shed.

 

5.              The majority of 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 to allow the shed to remain in place. This is the best location for the shed on the property and no detriment to the neighbors has been identified. The shed has been in the same location for 20 years with no issues from the neighborhood.

 

6.              The majority of the Board finds that granting the requested variances to allow the shed to remain in place will not have an adverse effect or impact on the physical or environmental conditions in the neighborhood. 

 

7.              The majority of the Board finds that although the requested variance to allow the shed to remain in place may be considered substantial, it is the minimum variance necessary and adequate to alleviate the difficulty causing the applicant to request the area variance.   

 

Deck

8.              The majority of the Board finds that granting the requested variances to allow the existing deck to remain in place, creates an undesirable change to the character of the neighborhood or creates a detriment to nearby properties.

 

9.              The majority of the Board finds that the benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue other than the requested area variances. The majority finds that the deck can be easily cut back in order to comply with the setback.

 

10.              The majority of the Board finds the requested variances to allow the deck is substantial, and is not the minimum variances necessary and adequate to alleviate the difficulty causing the applicant to request the area variance. The deck can be modified to comply with the Town Code. Applicant has not demonstrated why the existing deck cannot comply with the Town Code.   

 

11.              The majority of the Board finds that the need for the variances is self-created. While applicant did get a building permit for the decking, the deck was not constructed in a conforming location.

 

12.              The majority of the Board finds that the benefit to the applicant from grant of the requested variances does not outweigh the 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 7.7 ft. variance is granted to allow a shed to remain 2.3 ft. from the side yard where a minimum 10 ft. setback is required. A 5.7 ft. pyramid variance is required to allow the shed to remain.

 

2.              DESCRIPTION OF WORK APPROVED:  To allow a 128 sq. ft. shed to remain within side yard setbacks.

 

3.              RELIEF OR APPROVAL DENIED: A 5.8 ft. variance is denied to allow a deck to remain 4.2 ft. from the side yard where a minimum 10 ft. setback is required.

 

4.              DESCRIPTION OF WORK DENIED:  To allow a deck to remain within side yard setbacks.

 

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:  Applicant shall submit a revised survey depicting the removal of the deck within the side yard setback.   

 

2.              APPROVED BUILDING OR CONSTRUCTION PLANS:  N/A

 

3.              ADDITIONAL CONDITIONS AND TIME LIMITATIONS:

a.              Applicant shall submit an updated survey depicting the portion of the deck within the side yard setback removed prior to issuance of a Certificate of Occupancy.

 

b.              Applicant shall apply for and obtain a Building Permit no more than thirty-six (36) months from the date of filing this determination.

 

c.              Applicant shall apply for and obtain a Certificate of Occupancy no more than eighteen (18) months from the date of issuance of a building permit.

 

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.

 

1)              SHED: VICE-CHAIR ROGERS, MEMBERS DALENE, LYS, BERGER CONCUR TO GRANT THE VARIANCE TO ALLOW THE SHED TO REMAIN WITHIN SIDE YARD SETBACKS. CHAIRMAN WHELAN DISSENTS

 

2)              DECK: CHAIRMAN WHELAN, MEMBERS LYS AND DALENE CONCUR TO DENY THE VARIANCE TO ALLOW THE DECK TO REMAIN WITHIN SIDE YARD SETBACKS. VICE CHAIR ROGERS AND MEMBER BERGER DISSENT.

 

Dated: May 16th , 2017.

 

cc:                Building Department

              Planning Department

              Applicant