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 June 27, 2017
East Hampton, New York

 

 

I.              CALL TO ORDER

12:00 AM Meeting called to order on June 27, 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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¨

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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.              Steven Cronley

TIME:              6:30:00 PM              APPLICANT: Steven Cronley

SIZE/LOCATION:              2,000 sq. ft., 739 East End Dr. Unit 739, Map No. 80; Montauk Shores Condominium

Unit 739, Montauk (300-32.1-01-223)

DESCRIPTION:              To replace existing manufactured home and decking with a new 916 sq. ft. manufactured home and new decking on a parcel within 150 ft. of freshwater wetlands.

RELIEF SOUGHT: A Natural Resources Special Permit pursuant to ?255-4-20 and two variances from Section

255-4-30 (Wetland setbacks) and any relief necessary.  Two 21.6 ft. variances are required to respectively install a mobile home, and a deck 78.4 ft. from the freshwater wetlands where a minimum 100 ft. setback is required.

ZONING DISTRICT:              RS- Resort, Zone X Flood Zone

             

i.              Technical Analysis Memorandum

Technical Analysis Memo

             

              Lead Agency:              (not applicable)

              Planner: Lisa D?Andrea             

              Date completed:              March 9, 2017              Site Plan

              SEQRA class: Type II              Sub Waiver

              Physical Location:              100 DeForest Dr.

                                      739 East End Dr. Unit 739              Subdivision

              School District:              Montauk              Special Permit

              Zoning District:              Resort Zoning              Zone Change

              Overlay District:                  Variance             

              Tax Map Number: 300-032.1-01-223              Natural Resources

     Applicant:                Steven Cronley                                                           Special Permit

                          39 Fountain Ave.

                          Rockville Center, N.Y. 11570

                                                                                

                                                                                                                                                                                        

              Telephone:              (516) 220-5932             

              FEMA ZONE:              X Flood Zone

              Soil Type: Montauk soils, graded 0-8% (MlB)             

              Map of Property:              Map No. 80; Montauk Shores Condominium Unit 739

              Size of Parcel:              2,000 sq. ft.

 

Project Description:   To replace  an existing manufactured home and decking with a new 916 sq. ft. manufactured home and approximately 300 sq. ft. of new decking on a parcel within 150 ft. of freshwater wetlands.

 

Relief Requested: A Natural Resources Special Permit pursuant to ?255-4-20 and two variances from ? 255-4-30 (Wetland setbacks) and any relief necessary.  Two 21.6 ft. variances are required to respectively install a mobile home, and a deck 78.4 ft. from the freshwater wetlands where a minimum 100 ft. setback is required.

 

Property and History:

 

The Montauk Shores Condominium complex is occupied as ?mobile home park,? which is a residential use pursuant to the Code?s use tables [255-11-10A(9)], located in a Resort Zoning District.  Variances from the Zoning Board have periodically been required for natural resource and area setbacks within the ?mobile home park?.  Although the complex is condominiumized and therefore implies separate ownership of the individual units, these units are not recognized as separate parcels by the Town or Suffolk County Department of Health Services, which consider the premises as one parcel.

The coverage and total coverage calculations on the George Walbridge Master Plan of Montauk Shores Condominium survey originally surveyed in February 23, 1987 were in need of being updated. There was no unified system recording change of coverage and total coverage as individual units were replaced with new structures.  In an effort to rectify any inaccuracies moving forward, a new survey of Montauk Shores Condominium complex was done.  A new Master Plan of Montauk Shores Condominium by George Walbridge Surveyors was done that updated the lot coverage and total lot coverages. Each proposed change to a unit size is now documented so that lot coverage and total lot coverage are kept current and will not be exceeded.  It appears that the maximum lot coverage and total lot coverage maximum limits are still below the limits permitted.

  While coverage and total coverage changes are now being systematically recorded on the Master Plan Montauk Shores Condominium, there has been no unified system recording the changes in the mobile home units as they are enlarged or replaced in regards to the sanitary system that services the mobile homes.

Over the years Montauk Shores Condominium (MOSHO) has made numerous applications to Suffolk County Health Department Service (SCHDS). They had applications in 1990, 1993 and 1998 which involved a recreational center.   In 2008 MOSHO applied for two half baths in connection to the recreation center. These bathrooms were to be tied into the existing sanitary system. MOSHO received preliminary approval for the bathrooms in February of 2009, however, the final approval was never issued.  The open permit applies to the entire sanitary system.

There has been an effort by the Town to look into the adequacy of the sanitary system. There have been many building permits for larger mobile homes issued without any systematic recording of these increases in regards to the capacity of the existing sanitary system. MOSHO was asked to provide the documentation that there was a final approval for the 2008 permit.  After this request, it appears that MOSHO did finally submit final plans to the SCHDS in the fall of 2016.  An email dated December 20, 2016 from SCDHS to Natural Resources Director Kimberly Shaw stated that the SCHDS rejected the MOSHO final plans on December 13, 2016. So the permit remains open to date.

The Montauk Shores Condominium sanitary system that services the individual mobile homes and was designed to handle up to 26, 534 gallons per day (gpd). The flow rate for each mobile home is gauged on its size. A unit 600 sq. ft. or less has a flow rate of 150 gpd. Mobile homes 601 -1200 sq. ft. have a flow rate of 225 gpd. Any home larger than 1200 sq. ft. is rated at 300 gpd. Most of the mobile home units are in the 600-1200 sq. ft. range. There are only a few that are less than 600 sq. ft.  Seven units are over 1,200 sq. ft. The Planning Department tallied up 198 units that combined have a flow rate of up to 43,425 gpd. That is approximately 16,901 gpd over maximum flow the current system was designed to handle. Water quality issues are a serious problem for town waters and it has been determined that sanitary systems contribute to the degradation of our groundwater and surface waters. It is imperative that we do not have antiquated, over-taxed, or failing sanitary systems contributing further to the degradation of our ground and surface waters.

All proposed and existing structures have been depicted on a George Walbridge Surveying survey dated revised August 10, 2016.

 

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

 

The applicant is before the Board to replace a 600 sq. ft.  mobile home with a 916 sq. ft. mobile home. The existing 48 sq. ft. shed is slated to be removed and not replaced. The new deck will be smaller in size. 

The wetlands essentially run along the entire eastern property line of MOSHO.  Water flows generally from north of Deforest Rd.  southward eventually reaching the Atlantic Ocean. The wetlands that border the eastern MOSHO lot line are highly disturbed and have invasive species such as phragmites, multiflora rose, and Asian bittersweet. Along the eastern lot line of MOSHO the land has either maintained lawn or mobile homes. Towards the interior of the wetlands higher quality native vegetation is present.  Despite the disturbance along the edges these wetlands are vitally important for attenuating flood waters, absorbing pollution carried in stormwater runoff, and for providing essential wildlife habitat for many species.

One of the Planning Department?s concerns with this application is that the mobile home is substantially increasing in size. The MOSHO lot coverage and total lot coverage are still below the maximum square footage allowed. However, this is substantial increase in a mobile home size and use.   The question of if the existing sanitary system has the capacity or functionality to handle the cumulative enlargements that have occurred in MOSHO over the years remains unanswered.

The proposed mobile home is on the west side of East End Ave. and the wetlands are to the east of East End Ave.  Between the wetlands and the road is a maintained strip of lawn. The new mobile home will be no closer to the wetland and there appears to be no more conforming location for the mobile home or deck.

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

The applicant must demonstrate compliance with the Variance standards of ? 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.              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.

b.              Prior to the issuance of a building permit for this project, Montauk Shores Condominium must provide the Building Department with documentation that the existing sanitary system meets current Suffolk County Health Department (SCHD) standards.

c.              Prior to the issuance of a Certificate of Occupancy the improvements should be depicted on the Master Survey of Montauk Shores Condominium along with an update of the coverage calculations.

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

B.              Eric Cole

TIME:              6:40:00 PM              APPLICANT:              Eric Cole

SIZE/LOCATION:              1,160 sq. ft., 100 DeForest Rd. Unit 15, Map No. 80 (1982); Map No. 55 (1977),

Montauk (300-32.1-01-01)

DESCRIPTION:              To allow a 765 sq. ft. manufactured home and a 6 sq. ft. heat pump/compressor to remain at their current elevation on a parcel of land within a FEMA AE 16 flood zone.

RELIEF SOUGHT: Two variances from ?255-3-44 C.1. (Flood Hazard Construction Standards) of the

Town Code.  A 2.4 ft. variance is requested to allow a 765 sq. ft. mobile to remain at 15.6  ft. first floor elevation where a minimum 18 ft.  elevation is required. A 5 ft. variance is requested to allow a heat pump/compressor to remain at 11 ft. elevation where a minimum 16 ft. elevation is required.

ZONING DISTRICT:              RS- Resort

SEQRA CLASS: Type II

i.              Technical Analysis Memorandum

Technical Analysis Memo

             

              Lead Agency:              (not applicable)

              Planner: Lisa D'Andrea             

              Date completed:              June 4, 2014              Site Plan

              SEQRA class: TypeII              Sub Waiver

              Physical Location:              100 DeForest Rd. Unit 15              Subdivision

              School District:              Montauk              Special Permit

              Zoning District:              Resort              Zone Change

              Overlay District:                  Variance             

              Tax Map Number: 300-.32.1-01-01              Natural Resources

     Applicant:              Eric Cole                                                                      Special Permit   XX

                        Lighthouse Land Planning

                        c/o Tara Powers

                        PO Box 3050

                        Montauk, N.Y. 11954

                                                                                                                                                                                            

              Telephone:              (631) 668-7332             

              FEMA ZONE:              AE 16

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

              Map of Property:              Map No. 80 (1982); Map No. 55 (1977)

              Size of Parcel:              1,160 sq. ft.

 

Project Description:  To remove existing structures and replace with  a 765 sq. ft. mobile home, a 365 sq. ft.  deck, a 27.5 ft. shed with a propane enclosure, and a 325.6 ft. parking area on a parcel of land with bluffs, beaches, and wetlands.

 

Relief Requested: A Natural Resources Special Permit (NRSP) pursuant to ? 255-4-20 of the Town Code and three variances from ?255-4-40 (coastal setbacks). A 67.8  ft. and a 77.8 ft.  and a 50 ft. variance are required to respectively construct the mobile home, deck, and shed  82.2 ft. and 72.2 ft. and 100 ft. from the bluff crest where a 150 ft. setback is required.

 

 

Property Conditions and History:

The Montauk Shores Condominium complex is occupied as ?mobile home park,? which is a residential use pursuant to the Code?s use tables [255-11-10A(9)], located in a Resort Zoning District.  Variances from the Zoning Board have periodically been required for natural resource and area setbacks within the ?mobile home park?.  Although the complex is condominiumized and therefore implies separate ownership of the individual units, these units are not recognized as separate parcels by the Town or Suffolk County Department of Health Services, which consider the premises as one parcel. Town Code ? 255-11-88 states ?The proposed improvement does not result in the total building coverage for the mobile home community exceeding a total building coverage of 20% of the lot area. In calculating such coverage, the total lot area of the entire mobile home community shall be compared to the total building coverage of the entire mobile home community even if such community is composed of multiple parcels.? A revision of ? 255-11-88 of the Town Code eliminates site plan approval requirement for individual improvements within a mobile home community in a resort zoning district. 

The coverage and total coverage calculations on the George Walbridge Master Plan of Montauk Shores Condominium survey originally surveyed in February 23, 1987 were found, by the condominium and their surveyor, to be in need of being updated to insure accuracy. There was no unified system recording change of coverage and total coverage as individual units were changed.  In an effort to rectify any inaccuracies moving forward, a new survey of Montauk Shores Condominium complex was done.  A new Master Plan of Montauk Shores Condominium  by George Walbridge Surveyors dated June 15, 2012  was received by the Board on August 28, 2012.  The 2012 Master Plan showed that maximum lot coverage and total lot coverage maximum limits had not been achieved.  As changes are made to individual units, the building coverage and total lot coverage for the condominium complex as a whole are to be continually updated to keep an accurate account of the building and total lot coverages to insure that the maximum limit on building and total coverage is not exceeded.

All existing and proposed structures are decpicted on a George Walbridge Surveyors, P.C. survey dated revised May 28, 2014 and received by the Board on May 29, 2014.

 

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

All existing structures are proposed to be removed and replaced with a new mobile home and deck seaward of the structures that exist now.

The proposed project is to occur within the AE 16 flood zone. One purpose of regulating development within the Flood Hazard Overlay district is to protect people?s health, safety, and property, which may be endangered by flood or erosion hazards. This is one of the most erosive areas along Montauk?s oceanfront, and the bluff crest is repeatedly migrating further landward. The risk of damage from coastal storm events to the applicant?s property and to surrounding properties from displaced materials is a legitimate concern. The Town requires a minimum 150 ft. setback in this area because it is so vulnerable to erosion and flooding. The rock revetment at the base of the bluff was extensively repaired after Superstorm Sandy and its presence does not guarantee protection of the existing homes from erosion or the effects of severe coastal storm events.

 

Although approval has been granted in the past for seaward improvements into the common space area, the Planning Department continues to recommend that the Board consider possible future severe storm events and the vulnerability of the site to erosion when determining whether seaward construction should be continued at the bluff top.

 

Recommended Project Conditions:

 

a.              Prior to the issuance of a Certificate of Occupancy the improvements should be depicted on the Master Survey of Montauk Shores Condominium along with an update of the coverage calculations.

 

C.              Jim and Kim Welsch

TIME:              6:50:00 PM              APPLICANT:              Jim and Kim Welsch

SIZE/LOCATION:              2,000 sq. ft., 100 DeForest Rd. Unit 411, Map No. 80 (1982); Map No. 55 (1977),

Montauk (300-32.1-01-20)

DESCRIPTION:              To allow a 12 sq. ft. heat /air conditioner to remain at their current elevation on a parcel of land within a FEMA AE 14 flood zone.

RELIEF SOUGHT: One variance from ?255-3-44 B.3. (Flood Hazard Construction Standards) of the Town

Code and any relief necessary.  A 1.6 ft. variance is requested to allow a 12 sq. ft. heat              /air conditioner to remain at 12.4  ft. elevation where a minimum 14 ft. elevation is required .

ZONING DISTRICT:              RS- Resort, AE Flood Zone, elevation 14

SEQRA CLASS: Type II

i.              Technical Analysis Memorandum

Technical Analysis Memo

             

              Lead Agency:              (not applicable)

              Planner: Lisa D'Andrea             

              Date completed:              March 9, 2017              Site Plan

              SEQRA class: Type II              Sub Waiver

              Physical Location:              100 DeForest Rd. Unit 411              Subdivision

              School District:              Montauk              Special Permit

              Zoning District:              Resort              Zone Change

              Overlay District:                  Variance             

              Tax Map Number: 300-.32.1-01-83              Natural Resources

     Applicant:              Jim and Kim Welsch                                                  Special Permit   XX                                         

                            c/o OR-Rock Construction & Maintenance

                        6 Capt. McGovern Dr.

                        Stony Point, N.Y. 10980                                                                                                                                                                

              Telephone: (914) 263-4852             

              FEMA ZONE:              AE 14

              Soil Type: Bridgehampton silt loam, till substratum 2-6% slopes (BhB);Montauk soils graded 0-8% slopes (MlB)             

              Map of Property:              Map No. 80 (1982); Map No. 55 (1977)

              Size of Parcel:              2,000 sq. ft.

 

Project Description:  To allow a 12 sq. ft. heat /air conditioner to remain at their current elevation on a parcel of land within a FEMA AE 14 flood zone.

 

Relief Requested: One variance from ?255-3-44 B.3. (Flood Hazard Construction Standards) of the Town Code and any relief necessary.  A 1.6 ft. variance is requested to allow a 12 sq. ft. heat /air conditioner to remain at 12.4  ft.  elevation where a minimum 14 ft.  elevation is required .

 

 

Property Conditions and History:

 

The Montauk Shores Condominium complex is occupied as ?mobile home park,? which is a residential use pursuant to the Code?s use tables [255-11-10A(9)], located in a Resort Zoning District.  Variances from the Zoning Board have periodically been required for natural resource and area setbacks within the ?mobile home park?.  Although the complex is condominiumized and therefore implies separate ownership of the individual units, these units are not recognized as separate parcels by the Town or Suffolk County Department of Health Services, which consider the premises as one parcel.

 

All existing structures are depicted on a George Walbridge Surveyors , P.C. survey dated revised January 10, 2017 and received by the Board on February 23, 2017.

 

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

 

The applicant is before the Board to request a variance from the FEMA requirements in an AE 14 flood zone.  It appears the mobile home that was installed is FEMA compliant, however, the heat /air conditioner which is situated at ground elevation of about 12.4 ft.  does not meet minimum FEMA requirements for utilities.  FEMA requirement for utilities must be ?located at or above the base flood elevation or be designed to prevent water from entering and accumulating within the components during a flood and to resist hydrostatic and hydrodynamic loads and stresses.?  The applicant was issued a building permit for the installation of a mobile home, shed and deck. The applicant maintains that the height requirements of FEMA were not stipulated in the building permit. The building permit does explicitly state that ?such work is to be done in accordance with the terms of the Building Code of NY State and the Zoning Code of East Hampton?.   It appears that the applicant went to the building department to obtain a Certificate of Occupancy (CO) and was informed that a CO could not be issued because the heat/air conditioner unit did not comply with FEMA regulations.

It is unfortunate that the owner completed the work before finding out that utilities were required to meet FEMA regulations. The heat/ air conditioning unit is below an elevated deck which makes raising it a bit more problematic for the home owner.  However, one purpose of regulating development within the Flood Hazard Overlay district is to protect people?s health, safety, and property, which may be endangered by flood or erosion hazards. This is one of the most erosive areas along Montauk?s oceanfront. Sea level is expected to rise and storm intensity is expected to increase in the coming years. The risk of damage from coastal storm events and flooding to the applicant?s property and to surrounding properties from displaced materials is a legitimate concern. There is good reason to elevate the utilities to at least base flood elevation. The applicant states that raising the unit will create noise and a visual problem. The Planning Department?s opinion is that best practice is to adhere to FEMA requirements. Noise containment measures should be considered. Aesthetics should not trump safety.

One of the purposes of the Flood Hazard Overlay District ?255-3-41 of the Town Code is to ?Qualify for and maintain participation in the National Flood Insurance Program (NFIP)?. The granting of a variance from FEMA regulations may adversely affect the Town?s standing with NFIP.

Town Code ?255-3-45 details the Flood Hazard Overlay District variance procedure. The Board shall consider all relevant factors such as:

?              Danger that materials may be swept onto other lands to the injury of others

?              Danger to life and property due to flooding or erosion damage

?              The susceptibility of the facility and its contents to flood damage and the effect of such damage on the individual owner

?              The compatibility of the use with existing and anticipated development

?              Costs to local governments and the dangers associated with conducting search-and-rescue operations during periods of flooding

?              The costs of providing governmental services during and after flood conditions, including search and rescue operations.

The Conditions for Variances Town Code ?255-3-45 B in  include:

?              Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief

?              Variances shall only be issued upon receiving written justification of

a)              Showing good and sufficient cause

b)              A determination that failure to grant the variance would result in exceptional hardship to the applicant

c)              A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public or conflict with existing local laws or ordinances.

 

These are the guidelines the Town Code provides the Board with which to consider whether the grant of a Flood Hazard Overlay variance are warranted.

 

 

Recommended Project Conditions:

 

none

D.              Anthony & Janice Paratore

TIME:              7:00:00 PM              APPLICANT:              Anthony & Janice Paratore

SIZE/LOCATION: 2,000 sq. ft., 100 DeForest Rd. Unit 411, Map No. 80 (1982); Map No. 55 (1977),

Montauk (300-32.1-01-83)

DESCRIPTION:              To allow a 12 sq. ft. heat /air conditioner to remain at their current elevation on a

parcel of land within a FEMA AE 14 flood zone.

RELIEF SOUGHT: One variance from ?255-3-44 B.3. (Flood Hazard Construction Standards) of the Town

Code and any relief necessary.  A one ft. variance is requested to allow a 12 sq. ft.

heat /air conditioner to remain at 13  ft.  elevation where a minimum 14 ft. elevation is required .

ZONING DISTRICT:              RS- Resort, AE Flood Zone, elevation 14

SEQRA CLASS: Type II

i.              Technical Analysis Memorandum

Technical Analysis Memo

             

              Lead Agency:              (not applicable)

              Planner: Lisa D'Andrea             

              Date completed:              March 9, 2017              Site Plan

              SEQRA class: Type II              Sub Waiver

              Physical Location:              100 DeForest Rd. Unit 411              Subdivision

              School District:              Montauk              Special Permit

              Zoning District:              Resort              Zone Change

              Overlay District:                  Variance             

              Tax Map Number: 300-.32.1-01-83              Natural Resources

     Applicant:              Anthony and Janice Paratore                                     Special Permit   XX                                         

                            c/o OR-Rock Construction & Maintenance

                        6 Capt. McGovern Dr.

                        Stony Point, N.Y. 10980                                                                                                                                                                

              Telephone: (914) 263-4852             

              FEMA ZONE:              AE 14

              Soil Type: Montauk soils graded 0-8% slopes (MlB)             

              Map of Property:              Map No. 80 (1982); Map No. 55 (1977)

              Size of Parcel:              2,000 sq. ft.

 

Project Description:  To allow a 12 sq. ft. heat /air conditioner to remain at their current elevation on a parcel of land within a FEMA AE 14 flood zone.

 

Relief Requested: One variance from ?255-3-44 B.3. (Flood Hazard Construction Standards) of the Town Code and any relief necessary.  A one ft. variance is requested to allow a 12 sq. ft. heat /air conditioner to remain at 13  ft.  elevation where a minimum 14 ft.  elevation is required .

 

 

Property Conditions and History:

 

The Montauk Shores Condominium complex is occupied as ?mobile home park,? which is a residential use pursuant to the Code?s use tables [255-11-10A(9)], located in a Resort Zoning District.  Variances from the Zoning Board have periodically been required for natural resource and area setbacks within the ?mobile home park?.  Although the complex is condominiumized and therefore implies separate ownership of the individual units, these units are not recognized as separate parcels by the Town or Suffolk County Department of Health Services, which consider the premises as one parcel.

 

All existing structures are depicted on a George Walbridge Surveyors , P.C. survey dated revised June 29, 2016 and received by the Board on February 23, 2017.

 

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

 

The applicant is before the Board to request a variance from the  FEMA requirements in an AE 14 flood zone.  It appears the mobile home that was installed is FEMA compliant, however, the  heat /air conditioner  which is situated at ground elevation of about 13 ft.  does not meet minimum FEMA requirements for utilities.  FEMA requirement for utilities must be ?located at or above the base flood elevation or be designed to prevent water from entering and accumulating within the components during a flood and to resist hydrostatic and hydrodynamic loads and stresses.?  The applicant was issued a building permit for the installation of a mobile home, shed and deck. The applicant maintains that the height requirements of FEMA were not stipulated in the building permit. The building permit does explicitly state that ?such work is to be done in accordance with the terms of the Building Code of NY State and the Zoning Code of East Hampton?.   It appears that the applicant went to the building department to obtain a Certificate of Occupancy (CO) and was informed that a CO could not be issued because the heat/air conditioner unit did not comply with FEMA regulations.

It is unfortunate that the owner completed the work before finding out that utilities were required to meet FEMA regulations. However, one purpose of regulating development within the Flood Hazard Overlay district is to protect people?s health, safety, and property, which may be endangered by flood or erosion hazards. This is one of the most erosive areas along Montauk?s oceanfront. Sea level is expected to rise and storm intensity is expected to increase in the coming years. The risk of damage from coastal storm events and flooding to the applicant?s property and to surrounding properties from displaced materials is a legitimate concern. There is good reason to elevate the utilities to at least base flood elevation. The applicant states that there are other utility units at the same elevation on other lots. That does not mean that it is acceptable to have utilities below base flood elevation. Best practice moving forward is to adhere to FEMA requirements. Aesthetics should not trump safety.

One of the purposes of the Flood Hazard Overlay District ?255-3-41 of the Town Code is to ?Qualify for and maintain participation in the National Flood Insurance Program (NFIP)?. The granting of a variance from FEMA regulations may adversely affect the Town?s standing with NFIP.

Town Code ?255-3-45 details the Flood Hazard Overlay District variance procedure. The Board shall consider all relevant factors such as:

?              Danger that materials may be swept onto other lands to the injury of others

?              Danger to life and property due to flooding or erosion damage

?              The susceptibility of the facility and its contents to flood damage and the effect of such damage on the individual owner

?              The compatibility of the use with existing and anticipated development

?              Costs to local governments and the dangers associated with conducting search-and-rescue operations during periods of flooding

?              The costs of providing governmental services during and after flood conditions, including search and rescue operations.

The Conditions for Variances Town Code ?255-3-45 B  include:

?              Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief

?              Variances shall only be issued upon receiving written justification of

a)              Showing good and sufficient cause

b)              A determination that failure to grant the variance would result in exceptional hardship to the applicant

c)              A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public or conflict with existing local laws or ordinances.

 

These are the guidelines the Town Code provides the Board with which to consider whether the grant of a Flood Hazard Overlay variance are warranted.

 

 

Recommended Project Conditions:

 

none

E.              James & Susan Wandzilak

TIME:              7:10:00 PM              APPLICANT:              James & Susan Wandzilak

SIZE/LOCATION: 1,160 sq. ft., Edgewater#3, Map No. 80 Unit #3, Montauk (300-32.1-01-12)

DESCRIPTION:              To allow a 599 sq. ft. mobile home to remain at a first floor elevation of 14.9 ft. in a

Federal Emergency Management Act (FEMA) AE 16 flood zone.

RELIEF SOUGHT: A 3.1 ft. variance from ?255-3-44 C.1. (Flood Hazard Construction Standards) of the

Town Code to allow a 599 sq. ft. mobile home to remain at 14.9 ft. first floor elevation

where a minimum 18 ft. first floor elevation is required.

ZONING DISTRICT:              RS- Resort AE Flood Zone, elevation 16

SEQRA CLASS: Type II

i.              Technical Analysis Memorandum

Technical Analysis Memo

             

              Lead Agency:              (not applicable)

              Planner: Lisa D'Andrea             

              Date completed:              October 2, 2012              Site Plan

              SEQRA class: Type II                            Sub Waiver

              Physical Location:              Edgewater #3              Subdivision

              School District: Montauk                            Special Permit

              Zoning District: Resort Zoning              Zone Change

              Overlay District:                  Variance              XX

              Tax Map Number: 300-32.1-01-12              Natural Resources

     Applicant:              Wandzilak                                                                                       Special Permit   XX

                          c/o George Thamsen

                        OR Rock Construction and Maint. Co.

                        6 Capt. McGovern Dr.

                        Stony Point, N.Y. 10980                                                                                                                                                                          

              Telephone:              (914) 942-2749             

              FEMA ZONE:Flood Zone AE 16             

              Soil Type: MlB Montauk soils graded 0-8%             

              Map of Property: Map No. 80 Unit #3             

              Size of Parcel: 1,160 sq. ft.             

 

 

Project Description:  To install a 690 sq. ft. mobile home with a 36 sq. ft. shed, and a 340 sq.ft. deck on a parcel of land with coastal bluffs and waters.

 

Relief Requested: A Natural Resources Special Permit (NRSP) pursuant to Town Code ?255-4-20 and three variances from Town Code ? 255-4-40 (Coastal setbacks). An 84 ft., a 94 ft., and a 60 ft. variance to install respectively a mobile home, deck, and shed  66 ft., 56 ft., and 90 ft. from the bluff crest where 150 ft. setback is required.

 

Property Conditions and History:

The Montauk Shores Condominium complex is occupied as ?mobile home park,? which is a residential use pursuant to the Code?s use tables [255-11-10A(9)], located in a Resort Zoning District.  Variances from the Zoning Board have periodically been required for natural resource and area setbacks within the ?mobile home park?.  Although the complex is condominiumized and therefore implies separate ownership of the individual units, these units are not recognized as separate parcels by the Town or Suffolk County Department of Health Services, which consider the premises as one parcel.

The coverage and total coverage calculations on the George Walbridge Master Plan of Montauk Shores Condominium survey originally surveyed in February 23, 1987 were in need of being updated. There was no unified system recording change of coverage and total coverage as individual units were changed.  In an effort to rectify any inaccuracies moving forward, a new survey of Montauk Shores Condominium complex was done.  A new Master Plan of Montauk Shores Condominium  by George Walbridge Surveyors dated June 15, 2012  was received by the Board on August 28, 2012. It appears that the maximum lot coverage and total lot coverage maximum limits have not been achieved.

All existing and proposed structures are depicted on a George Walbridge Surveyors , P.C. survey dated revised August 17, 2012 and received by the Board on August 28, 2012.

 

 

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

Unit 3 is situated on the Atlantic Ocean side of the Montauk Shores Condominium parcel and Town Code ? 255-4-40 C (Coastal setbacks) requires structures to be a minimum of 150 ft. setback from the bluff crest.  The proposed project is to occur within an AE 16 flood zone. One purpose of regulating development within the Flood Hazard Overlay district is to protect people?s health, safety, and property, which may be endangered by flood or erosion hazards. This is one of the most erosive areas along Montauk?s oceanfront, therefore the bluff crest is always subject to being located further landward over time. The risk of damage from coastal storm events to the applicant?s property and to surrounding properties from displaced materials is a legitimate concern. Even though there is a rock revetment at the base of the bluff, the revetment appears to require yearly maintenance.

The applicant is proposing to install the new mobile home unit on the north unit lot line. This mobile home will be larger but the setback variance will remain the same. The existing deck will be removed and the deck is proposed to be extended approximately 3 ft. seaward. The Planning Department does not recommend any new construction in the common area closer to the bluff crest than exists already. The variance request for the deck is not the minimum variance necessary and the applicant should consider redesigning the deck. 

Apparently the existing sanitary system which services all units is at capacity. Currently, there are ten applications for proposed projects within the Montauk Shores Condominium and it appears that even if all are approved the coverage and total coverage of Montauk Shores Condominium will not be exceeded as a result.

  It is the responsibility of the applicant to demonstrate that this project meets the criteria for the issuance of a NRSP, and area variances pursuant to Town Code ? 255-5-51D and ? 255-8-50D.

 

Recommended Project Conditions:

 

a.              Prior to the issuance of a Certificate of Occupancy  the improvements should be depicted on the Master Survey of Montauk Shores Condominium along with an update of the coverage calculations.

 

IV.              WORK SESSION:

V.              EXTENSION OF TIME:

A.              Karen Magovern

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

 

Original Permit Date: January 15th 2014 - Construction has been initiated - Extension of Time is to maintain a valid Building Permit and Certificate of Occupancy.

B.              Joslin Lions Head LLC

SCTM# 300-32-1-32 - 154 Isle of Wight  Road, Springs

 

Original Permit Date July 16th 2011 - No construction activities completed. - Extension of Time request is to maintain a Building Permit and a Certificate of Occupancy

VI.              POSSIBLE ADMINISTRATIVE APPLICATIONS:

VII.              BOARD DETERMINATIONS:

VIII.              BOARD DECISIONS:

A.              Cynthia Rowley

SCTM# 300-32-4-20

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? and 95? are required to construct the residence and decking 10? and 5? respectively from wetlands where a 100? setback is required; (2) a 144? variance is required to install a new sanitary system 6? from wetlands where a 150? setback is required and (3) clearing is proposed adjacent and within the wetlands where a 50? setback is required.  Continuation hearing was held May 16th.

B.              Gianna & Milena Zuccotti

791 Springs Fireplace Rd, N/A, Springs (300-063-04-06) - Public hearing held May 23rd 2017 - left open till June 23rd for a new survey

DESCRIPTION:              To allow patio adjacent to pool on property to remain 16.8 feet at nearest point from rear property line and to allow pool equipment on property to remain 12.1 feet from side yard property line where in both instances the minimum required setback is 20 feet from property line               RELIEF SOUGHT: One variance of 4 ft. from 255-11-10 & 255-11-89 to allow pool patio to remain 16'8" from rear property line and one variance of 8 ft. from 255-11-10 & 255-11-89  to allow pool equipment to remain 12.1 ft. from side yard property line, and any other relief necessary.              

ZONING DISTRICT: A5 Residence Zone X Flood Zone

SEQRA CLASS: Type II

C.              Gerard Russell

50 Wireless Road, N/A, East Hampton (300-194-01-29)Public Hearing held June 6th - left open till June 13th

DESCRIPTION:              To construct a pool deck within the side yard lot line and rear yard lot line               setback and to allow the existing pool heater to remain within the rear yard lot line setback.             

Relief Sought : 3 variances from  255-11-10 (Table III) and 255-11-89 of the Town Code.  (1) A 1.4 ft. variance is required to allow a pool deck to be rebuilt 18.6? from northern (rear)               lot line where a 20 ft. setback is required; (2) A 4.5 ft. variance is required to allow a pool  deck to be rebuilt 15.5 ft. from eastern (side yard) lot line where a 20 ft.  setback is required; (2) A 1.8 ft. variance is required to allow the pool equipment to remain 18.2 ft. from the northern  (rear) lot line where a 20 ft.  setback is required, and any other relief necessary

ZONING DISTRICT: B Residence Zone X Flood Zone

SEQRA CLASS:              Type II

D.              Meijas

71 Cliff Road, Amagansett (300-174-02-03)

DESCRIPTION: To demolish the existing residence and construct a 2,383 sq. ft. two story residence, a 303 sq. ft. accessory structure, a 700 sq. ft. swimming pool and a 665 sq. ft. pool deck on a parcel of land containing dune land and beach vegetation. RELIEF SOUGHT: A Natural Resources Special Permit pursuant to Section 255-4-20 of the East Hampton Town Code. ZONING DISTRICT: B Residence, Zone X Flood Zone SEQRA CLASS: Type II

Public Hearing held May 23rd 2017 - left open till June 23 for new survey

IX.              MINUTES APPROVAL:

A.              June 20th 2017 Minutes

X.              RESOLUTIONS

A.              87 Abrahams Landing LLC

ZONING BOARD OF APPEALS

TOWN OF EAST HAMPTON

_____________________________________                                  

In the Matter of the Application

 

            of                                                                                     DETERMINATION

 

87 ABRAHAMS LANDING LLC

SCTM #300-150-4-17

_____________________________________

HEARING DATE:              May 2, 2017

                                

PRESENT:                            JOHN WHELAN, Chair

CATE ROGERS, Vice-Chair

                                          DAVID LYS, Member

                                          ROY DALENE, Member

                                          THERESA BERGER, Member

                                         

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

DENISE A. SAVARESE, Legislative Secretary

JAMES KOMMER, Planning Department

                                          ZORBA LIEBERMAN, Owner

                                          DAN GUALTIERI, Agent for Owner

                                         

                     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 Lys of this Board.

 

A.              PROJECT DESCRIPTION

 

1.              PURPOSE OF APPLICATION: To allow an approximately 428 sq. ft. garage to remain partially within side yard setbacks and outside of the Town?s pyramid restrictions.

 

2.              RELIEF OR APPROVAL SOUGHT: Variances from ? 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 1.1? 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.

 

B.              PROPERTY SIZE & LOCATION

 

1.              LOT SIZE: 19,954.89 sq. ft. (total) 

2.              STREET LOCATION: 87 Abrahams Landing 

3.              CONTIGUOUS WATER BODIES: N/A

4.              HAMLET OR GEOGRAPHIC AREA: Amagansett

5.              FILED MAP NAME: N/A

6.              FILED MAP NUMBER: N/A

7.              DATE OF MAP FILING: N/A

8.              BLOCK NUMBER IN FILED MAP: N/A

9.              LOT NUMBER IN FILED MAP:  N/A

10.              SUFFOLK COUNTY TAX MAP DESIGNATION:  #300-150-4-17

 

B.              ZONING INFORMATION

 

1.              ZONING DISTRICT: A2 Residence

2.              ZONING OVERLAY DISTRICT: WROD

 

C.              SEQRA DETERMINATION

 

1.              SEQRA CLASSIFICATION:  Type II

2.              LEAD AGENCY:  N/A

3.              DETERMINATION OF SIGNIFICANCE:  N/A   

4.              DATE OF DETERMINATION:  N/A

 

D.              STANDARDS FOR BOARD REVIEW

 

1.              In order for this Board to grant applicant the requested area variances, 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.?

 

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 variances 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 variances necessary and adequate to alleviate the difficulty causing applicant to request area variances, 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 granting the instant application will be consistent with the requirements of both Town Law ? 267-b and Town Code ? 255-8-50.

 

E.              ADDITIONAL FINDINGS AND CONCLUSIONS:

 

1.              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.

 

2.              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 ? 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.

 

3.              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 15? from the eastern side yard, the as built structure lies only 13.9? from the aforementioned side yard.

 

4.              The Board finds that granting the requested variance does not cause an undesirable change to the character of the neighborhood or create a detriment to nearby properties. The garage has been in its current location since 1984 without any complaints from neighbors or negative impact to the neighborhood.

 

5.              The Board finds that the benefit sought by the applicant cannot be achieved by some method other than an area variance. The garage received building permits and was inspected in 1984, however the permit was never closed out by the prior owner.

 

6.              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 applicant to request the area variances. The garage was built in 1984 with no impact or complaint by neighbors. Many of the neighbors wrote in support of the application.

 

7.              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 property is 100% cleared and no impacts to any natural resources are anticipated from this project.

 

8.              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). 

 

F.              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:  Variances from ? 255-11-10 (Table III) and ?255-11-72D (Pyramid) of the Town Code. The following variances are granted: (1) A 1.1? variance to allow the addition to remain 13.9? from the eastern (side yard) lot line where a 15? setback is required; (2) a  variance to allow the garage to extend approximately 1? beyond the relative height limit (Pyramid) along the eastern lot line.

 

2.              DESCRIPTION OF WORK APPROVED: To allow an approximately 428 sq. ft. garage to remain partially within side yard setbacks and outside of the Town?s pyramid restrictions.

                                

G.              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 Scalice Land Surveying, PC. dated June 8, 2016.

 

2.              ADDITIONAL CONDITIONS AND TIME LIMITATIONS:

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

b.              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.

 

H.              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, Chairman

              CATE ROGERS, Vice Chair

              DAVID LYS, Member

              ROY DALENE, Member

              THERESA BERGER, Member

 

Dated: June 27, 2017

 

cc:                Building Department

              Planning Department

       Dan Gualtieri

B.              Ackerman

ZONING BOARD OF APPEALS

TOWN OF EAST HAMPTON

_____________________________________                                  

             

In the Matter of the Application

 

            of                                                                                     DETERMINATION

 

VALENTINA ACKERMAN

SCTM # 300-174-2-32

_____________________________________

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

                                          KIMBERLY EADS, General Contractor

                                                                                   

                            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 Lys of this of this Board.

 

A.              PROJECT DESCRIPTION

 

1.              PURPOSE OF APPLICATION:  To demolish and remove an existing deck and replace it with a 458 sq. ft. deck within 150 ft. of freshwater wetlands.

 

2.              RELIEF OR APPROVAL SOUGHT: A Natural Resources Special Permit pursuant to ?255-4-20 and one variance from ?255-4-30 (wetland setbacks) of the East Hampton Town Code and any relief necessary. A 91 ft. variance is required to construct the deck 9 ft. from the wetlands where a 100 ft. minimum setback is required.   

 

B.              PROPERTY SIZE & LOCATION

 

1.              LOT SIZE:  17,500 sq. ft. (total) 

2.              STREET LOCATION: 71 Jacqueline Drive

3.              CONTIGUOUS WATER BODIES: N/A

4.              HAMLET OR GEOGRAPHIC AREA: Amagansett

5.              FILED MAP NAME:  Map of Beach Hampton, Section 5

6.              FILED MAP NUMBER: 1763

7.              DATE OF MAP FILING: July 13, 1950

8.              BLOCK NUMBER IN FILED MAP: 22

9.              LOT NUMBER IN FILED MAP: 10-16 incl.

10.              SUFFOLK COUNTY TAX MAP DESIGNATION:  #300-174-2-32

 

 

 

 

 

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 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 parcel comprises approximately 69,649 sq. ft., is situate on Jacqueline Drive in Amagansett, is in B Residential zoning and the soil type present on this parcel is dune land as per Suffolk County Soil survey.

 

2.              The premises are improved with a 2,136 sq. ft. two story residence with 1,060 sq. ft. of decking and a 94 sq. ft. shed all constructed prior to zoning. The most recent Certificate of Occupancy itemizing those structures was issued on October 24, 2014. In June of 2016 a building permit was issued for interior alterations specifying that any exterior work would need a lot inspection.

 

3.              The current owner and applicant acquired the property in December 2014. All existing and proposed structures are depicted on a Gary Benz Surveying and Land Planning survey dated revised May 31, 2016. The Board notes that the proposed driveway and any additional clearing as depicted on this survey has been eliminated from the proposed project.

 

4.              There is a U-shaped driveway on the property. The survey submitted with the application delineates that the areas immediately to the north, south, and within the ?U? part of the driveway are uncleared. Prior to the issuance of the building permit in June, for interior alterations only, these areas were indeed vegetated. A site inspection December 1, 2016 revealed extensive clearing and disturbance to the front yard in front of the residence. There are also drainspouts on the outside of the residence that appear new and appear to drain right onto the ground and not into a drywell. Aerial photos and site photos were submitted to the file.

 

5.              The wetland on the property stretches to the south and west of the parcel and can be characterized as a highly diverse wetland with species of woody and herbaceous plants.  There is also standing water in the wetland throughout portions of the year.  The wetland constitutes an integral part of the natural environment, and more specifically, the hydrologic system.  In addition to diversifying the landscape these wetlands play a significant role in the storage of water, flood control, and the maintenance of water quality.  The wetlands are an important component for the habitat of a variety of wildlife species.

 

6.              It should be noted that the entire property is within NRSP jurisdiction.  The applicant is proposing to remove most of the existing ?U?-shaped driveway, revegetate and configure a much smaller driveway.

 

7.              The building permit issued June 6, 2016 was for interior alterations only.  No care has been taken to protect the vegetated areas in the front yard. As a consequence the vegetated area within the U part of the driveway has been cleared and extensively disturbed by dumpsters and construction material and vehicles. Planning Department recommended that the applicant submit a revegetation plan for this disturbed area along with the plans for the front yard where the driveway is to be removed. Applicant submitted a planting plan to the Board that was reviewed and approved by the Planning Department on April 26, 2017.

 

8.              There is an existing shed and a nonconforming deck that the applicant is proposing to remove. The removal of the shed will be an environmental improvement. The applicant proposes to replace the deck with a deck approximately the same size, but the new deck will be configured so that it is further away from the wetland than the existing deck. The new deck will require a very substantial variance.

 

9.              The Board finds that granting the requested variance for the deck will not cause an undesirable change to the character of the neighborhood or create a detriment to nearby properties. The deck is replacing an existing deck that is currently closer to the wetlands. Applicant is also proposing to remove an extremely nonconforming shed and provide significant revegetation that will further protect the wetlands.

 

10.              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 variance for the deck. There is no conforming location for a deck at this residence and the proposed deck is replacing an existing deck.

 

11.              The Board finds that although the requested variance for the deck may be considered substantial, it is the minimum variance necessary and adequate to alleviate the difficulty causing the applicant to request the area variance. The proposed deck is to be located in the location of the existing deck and will be located farther from the wetlands.

 

12.              The Board finds that granting the requested variance for the deck will not have an adverse effect or impact on the physical or environmental conditions in the neighborhood. Applicant is proposing to remove an existing deck and shed and will be building the new deck farther from the wetlands than what currently exists on the property. Moreover, applicant is proposing additional revegetation that will improve the environmental conditions on the property. The revegetation will also eliminate portion of a U-shaped driveway that will result in a smaller driveway on the property.

 

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

 

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

 

15.              The Zoning Board finds the proposed deck 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.  Applicant is replacing an existing deck that is proposed farther from the wetlands than what currently exists on the property. Moreover, extensive revegetation and a proper drainage plan will improve the environmental conditions of the property.

 

16.              The Board finds the lot area to be sufficient, appropriate and adequate for the deck.  No dimensional setback variance requests are required for this application. Moreover, applicant is proposing to reduce the building coverage and total lot coverage on this property.

 

17.              The Board finds that the deck does not prevent the orderly and reasonable use of adjacent properties as no impact to adjacent properties has been identified and dimensional setback variances are required.

 

18.              The Board finds that the characteristics of the site are such that the deck may be introduced without undue disturbance or disruption to important natural features. Applicant is replacing an existing deck that is proposed farther from the wetlands than what currently exists on the property. Moreover, extensive revegetation and a proper drainage plan will improve the environmental conditions of the property.

 

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 pursuant to ?255-4-20 and one variance from ?255-4-30 (wetland setbacks) of the East Hampton Town Code. A 91 ft. variance is granted to construct the deck 9 ft. from the wetlands where a 100 ft. minimum setback is required.   

 

2.              DESCRIPTION OF WORK APPROVED:  To demolish and remove an existing deck and replace it with a 458 sq. ft. deck within 150 ft. of freshwater wetlands.

 

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:  Prepared by Gary Benz, L.S. dated last revised 5/31/16 and stamped received by the Zoning Board on June 20, 2016 for purposed of depicting the deck only. Applicant shall submit a revised survey depicting the proposed revegetation and elimination of the clearing variance.     

 

2.              APPROVED BUILDING OR CONSTRUCTION PLANS: Prepared by Wythe Studios Architects dated last revised 5/31/16 and stamped received by the Zoning Board on June 20, 2016.

 

3.              APPROVED REVEGETATION PLAN: Prepared by Hampton Rustic Landscapes dated April 20, 2017 and stamped received by the Zoning Board on April 25, 2017.

 

4.              ADDITIONAL CONDITIONS AND TIME LIMITATIONS:

 

a.              Project limiting fencing with staked straw bales shall be erected and maintained to limit land disturbance and prevent sedimentation of the wetlands in the location approved by the planning department and depicted on an updated survey.

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

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

e.              All areas disturbed by construction of the new deck shall be revegetated with native wetland shrubs appropriate for the habitat in the location depicted on the approved revegetation plan. 

f.              The establishment of turf, lawn, sod or ornamental vegetation shall be not be permitted.

g.              The parcel shall be vegetated in accordance with the approved revegetation plan. The revegetation shall be inspected for adequacy prior to the issuance of a Certificated of Occupancy.

h.              The applicant shall submit a drainage plan for approval by the Town Engineer prior to issuance of a building permit.

i.              The residence 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.?  

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

k.              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

 

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

 

m.              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.

 

n.              A copy of the Natural Resources Special Permit, the approved survey, and the approved 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, Chairperson

CATE ROGERS, Vice-Chairperson

DAVID LYS, Member

ROY DALENE, Member

THERESA BERGER, Member

 

DATE: June 27, 2017

cc:                Building Department

              Planning Department

              Jeni Erbes-Chan

C.              Symansky

ZONING BOARD OF APPEALS

TOWN OF EAST HAMPTON

_____________________________________                                  

             

In the Matter of the Application

 

            of                                                                                     DETERMINATION

 

GARY SYMANSKY

SCTM # 300-28-2-26

_____________________________________

HEARING DATE: May 2, 2017

                                

PRESENT:                            JOHN P. WHELAN, Chair

                                          CATE ROGERS, Vice Chair

DAVID LYS, Member

                                          ROY DALENE, Member

                                          THERESA BERGER, Member

                                         

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

                                          DENISE SAVARESE, Legislative Secretary

                                          TYLER BORSACK, Planning Department

                                          RICHARD A. HAMMER, ESQ., Attorney for Applicant

                                          ED BALDRIAN, Neighbor

                                                                                   

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

 

2.              RELIEF OR APPROVAL 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?, from ?255-4-30 of the Town Code, is required to allow the shed to remain 96? from freshwater wetlands where a 100? setback is required, and any other relief necessary.

 

B.              PROPERTY SIZE & LOCATION

 

1.              LOT SIZE:  18,670 sq. ft. (total) 

2.              STREET LOCATION: 78 South Fairview Avenue

3.              CONTIGUOUS WATER BODIES: N/A

4.              HAMLET OR GEOGRAPHIC AREA: Montauk

5.              FILED MAP NAME:  Montauk Beach Development Corp., South Downs Residential Section

6.              FILED MAP NUMBER: 1012

7.              DATE OF MAP FILING: May 6, 1927

8.              BLOCK NUMBER IN FILED MAP: 38

9.              LOT NUMBER IN FILED MAP: 5

10.              SUFFOLK COUNTY TAX MAP DESIGNATION:  #300-28-2-26

 

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 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 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 four times previously in 1986, in 1993, and in 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.

 

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

 

3.              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 farther 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.?

 

4.              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 Certificate of Occupancy for the requested shed.

 

5.              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.

 

6.              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. The Planning Department recommends in it Technical Analysis Memorandum dated February 22, 2017 that for any approval of the shed that the applicant remove any structures from the scenic easement prior to the issuance of a Certificate of Occupancy.  Once the driveway and stones are removed from the scenic easement and the area should be revegetated prior to issuance of a Certificate of Occupancy.

 

7.              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.

 

8.              The Board finds that granting the requested variance for the shed will not cause an undesirable change to the character of the neighborhood or create a detriment to nearby properties. The shed is in the most conforming location on the lot and no impact to the neighborhood is anticipated by leaving the shed in its current location. 

 

9.              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 variance for the shed. There is no conforming location for a shed at this residence due to the wetlands and the location of the sanitary system.

 

10.              The Board finds that although the requested variance for the shed may be considered substantial, it is the minimum variance necessary and adequate to alleviate the difficulty causing the applicant to request the area variance. The shed is located in the only location available on the lot due to the shape of the lot, location of wetlands and the location of the existing sanitary system. 

 

11.              The Board finds that granting the requested variance for the shed will not have an adverse effect or impact on the physical or environmental conditions in the neighborhood. The shed maximizes the distance to the wetlands and no other location is available on the site for the shed. The Board does not anticipate any adverse impact from maintaining the shed in its current location.

 

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

 

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

 

14.              The Zoning Board finds the proposed shed 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. 

 

15.              The Board finds the lot area to be sufficient, appropriate and adequate for the shed.  No dimensional setback variance requests are required for this application.

 

16.              The Board finds that the shed does not prevent the orderly and reasonable use of adjacent properties as no impact to adjacent properties has been identified and dimensional setback variances are not required.

 

17.              The Board finds that the characteristics of the site are such that the shed may be introduced without undue disturbance or disruption to important natural features. The shed is located in the only location available on the lot due to the shape of the lot, location of wetlands and the location of the existing sanitary system.  No impact to the wetlands is anticipated by allowing the shed to remain in its current location. The wetlands are located in the front of the property and are protected by the scenic easement. As a condition of approval, applicant will be required to restore the easement and remove any structures located within its boundaries.

 

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

 

2.              DESCRIPTION OF WORK APPROVED:  To allow an approximately 96 sq. ft. shed to remain within jurisdiction and setbacks of freshwater wetlands.

 

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:  Prepared by William J. Walsh survey dated last revised September 3, 2014 and stamped received by the Zoning Board on June 21, 2016. 

 

2.              ADDITIONAL CONDITIONS AND TIME LIMITATIONS:

 

a.              The driveway and associated structures within the scenic easement shall be removed prior to a Certificate of Occupancy.

b.              The scenic easement shall be revegetated in accordance with the species, sizes and spacing indicated on a revegetation plan approved by the Board.  The revegetation shall be completed prior to the issuance of a Certificate of Occupancy. 

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

 

d.              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.

 

e.              A copy of the Natural Resources Special Permit, the approved survey, and the approved 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, Chairperson

CATE ROGERS, Vice-Chairperson

DAVID LYS, Member

ROY DALENE, Member

THERESA BERGER, Member

 

DATE: June 27, 2017

 

cc:                Building Department

              Planning Department

              Richard A. Hammer, Esq.

             

             

D.              Hall

ZONING BOARD OF APPEALS

TOWN OF EAST HAMPTON

_____________________________________________                                  

             

In the Matter of the Appeal of:

                                                                                                                              DETERMINATION

ANNE GILCHRIST HALL &

JOHN H. HALL

 

Appealing the Determination of Principle Building

Inspector, dated October 20, 2015

_____________________________________________

HEARING DATES:  April 5, 2016

           April 25, 2017

                           

PRESENT                 JOHN WHELAN, Chair             

(4/5/16):                               CATE ROGERS, Vice-Chair                                            

   DAVID LYS, Member

   LEE WHITE, Member

                                             ROY DALENE, Member

 

PRESENT                 JOHN WHELAN, Chair

(4/25/17):                               DAVID LYS, Member

                                           ROY DALENE, Member

                                THERESA BERGER, Member

 

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

        (4/5/16)                  DENISE A. SAVARESE, Legislative Secretary

                                       CHRISTOPHER KELLEY, ESQ., Attorney for Appellant

                                             JEFFREY L. BRAGMAN, ESQ., Attorney for Property Owners

                                             RICHARD WARREN, Agent for Property Owners

                                       ANN GLENNON, Principal Building Inspector

 

          ALSO PRESENT: MICHAEL SENDLENSKI, ESQ., Town Attorney

          (4/25/17)                HOPE DELAUTER, ESQ., Assistant Town Attorney

                                         CHRISTOPHER KELLEY, ESQ., Attorney for Appellant

                                               JEFFREY L. BRAGMAN, ESQ., Attorney for Property Owners

                                               ANTHONY TOHILL, ESQ., Attorney for Property Owners

                                               RICHARD WARREN, Agent for Property Owners

                           

          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 Chairman Whelan of this Board.

 

A.              PROJECT DESCRIPTION

 

1.              PURPOSE OF APPLICATION:

An Appeal of the Principal Building Inspector pursuant to ?255-8-35A(1) of the Town Code.              

             

2.              RELIEF OR APPROVAL SOUGHT: Applicant seeks to challenge the determination by the Principal Building Inspector dated October 20, 2015 finding the properties located at 9 Association Road, Wainscott (SCTM# 300-200-3-22) and 7 Pierson?s Way, Wainscott (SCTM# 300-201-1-5) are not merged and remain two single and separate lots.

 

B.              PROPERTY SIZE & LOCATION

1.              STREET LOCATION AND LOT SIZE: 7 Pierson?s Way (1.5 acres), 9

Association Road (1.59 acres)  

2.              CONTIGUOUS WATER BODIES: N/A

3.              HAMLET OR GEOGRAPHIC AREA:  Wainscott

4.              SUFFOLK COUNTY TAX MAP DESIGNATION:  #300-200-3-22 & 300-201-1-5

 

C.              ZONING INFORMATION

1.              ZONING DISTRICT: A5

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.              ADDITIONAL FINDINGS AND CONCLUSIONS

 

1.              The applicants, Anne Gilchrist Hall and John H. Hall reside at 5 Pierson?s Way, Wainscott (SCTM# 300-201-1-4). Their property is the adjacent property to the north of the subject premises.

 

2.              The subject premises are located near Georgica Pond in Wainscott, Town of East Hampton. 7 Pierson?s Way (the ?Pierson Lot?) is a 1.59 acre pond-front lot and 29 Association Road (the ?Association Lot?) is a 1.5 acre lot located to the northwest of the Pierson Lot.

 

3.              The Hayes family owns both of the subject premises.

 

4.              The Pierson Lot History:

 

i.              Alfred Hayes and Vilma Chalmers Hayes, his wife, acquired title to the Pierson Lot on October 26, 1962.  At the time, the 1.5 acre property was a conforming lot located in a one (1) acre (A-Residential District) zone.

 

ii.              In 1966 the Hayes? applied for and obtained a building permit to construct a small 605 sq. ft. residence. The construction was completed in 1967 and a Certificate of Occupancy was issued in May 1967.

 

iii.              From 1962 until 1989, the Pierson Lot remained in the same record ownership of Alfred Hayes and Vilma Hayes, his wife.

 

iv.              The Pierson Lot is now owned by the children of Alfred Hayes and Vilma Hayes, Anita Gratwick and Thomas C. Hayes.

 

 

 

5.              The Association Lot

 

i.              Alfred Hayes and Vilma Chalmers Hayes, his wife, acquired title to the Association Lot on February 20, 1961. At the time the 1.59 acre property was a conforming lot located in a one (1) acre (A-Residential District) zone.

 

ii.              In 1962, the Hayes? applied for and obtained a building permit cont construct a small single family residence. In June 1962 a Certificate of Occupancy was properly issued for the house and related structures. In 1972, another building permit was applied for and obtained for a 458 sq. ft.  addition to the existing house on the same property. A Certificate of Occupancy was issued in 1974, at which time the lot remained conforming.

 

iii.              From 1961 until 1989, the Association Lot remained in the same record ownership of Alfred Hayes and Vilma Hayes, his wife.

 

iv.              The Association Lot is also currently owned by the children of Alfred Hayes and Vilma Hayes in Hayes Family, LLC. 

 

6.              From 1962 until 1989, the two properties were held in the same ownership. Both properties have held valid Certificates of Occupancy since 1974.

 

7.              Association Road is a private road and owners own to the center line of the road, therefore the subject premises share a common boundary line and are not separated by a Town-owned road.

 

8.              Both improved lots were subject to a town-wide rezoning in 1983 that resulted in both becoming nonconforming to lot size. The properties were up-zoned from ?A? Residence District, requiring 40,000 sq. ft. of lot area, to an ?AA? Residence District, requiring 84,000 sq. ft.

 

9.              In 2005, pursuant to Resolution 2005-1084, the Town of East Hampton amended the Town Code, by local law, so that improved, adjacent, non-conforming parcels held in the same ownership will not merge. Within the findings of Resolution 2005-1084, the Town Board included the following language:

 

The Board takes the position that the merger of improved non-conforming parcels would only create additional non-conformity in the creation of a single lot with two single family residences, which is an undesirable result.

 

This exception has long been the position of the Chief Building Inspector under his interpretation of the Town Code and this formal amendment to the Town Code simply formalizes what has long been the policy in the Town.

 

10.              Applicants argue that the subject premises merged as a result of the 1983 upzoning. The applicants requested a formal determination from the Principal Building Inspector regarding the possible merger of the lots.

 

11.              By letter to the attorney for the applicant dated October 20, 2016, the Principal Building Inspector determined that ?the two properties are not merged and remain two single and separate parcels?. The Principle Building Inspector based her determination on the findings found in the local law which formalized an exception to the merger rule in the Town Code excepting from merger, lots which are both improved. The applicant appealed this October 20, 2016 determination to this Board.

 

12.              Timeliness:

 

i.              The property owner has argued that the this appeal is not timely because the building inspector?s determination simply confirmed the validity of Certificates of Occupancy issued years before and that any appeal would have to had been filed within sixty (60) days of the upzoning in 1983.  The property owners are basing their argument on, Palm Management Corporation v. Goldstein, 8 N.Y.3d 337, 833 N.Y.S. 2d 423 (2007).

 

ii.              The Board finds that the appeal is timely and that Palm Management is not applicable to this appeal.

 

13.              Merger

 

i.              The majority of the Board finds that the properties did not merge and remain two single and separate lots.

 

ii.              The majority finds that the Facts and Findings within the local law provide a clear understanding of the intent of the Town Board at that time. Specifically, no longer would two improved properties merge under operation of law in the Town of East Hampton. Resolution 2005-1084 simply codified this long standing interpretation of the Town Code.

 

iii.              The majority finds that it would be unreasonable to allow two improved lots to merge because this would create additional nonconformity in the creation of a single lot with two single family residences. The policy behind merger is to create more conforming lots, not create new non-conformities. The Town Code only allows one residence per single and separate lot.

 

iv.              The majority finds that the prior ZBA determinations cited by the applicant were not relevant to this application and therefore the majority does not find them persuasive. The majority notes that the ZBA determinations cited by the applicant did not involve two improved lots merging due to an upzone.

 

v.              Finally, the Board finds that the lot that would be created by merging the subject premises would be contrary to zoning and create unreasonable result.

 

F.              DISPOSITION OF APPLICATION

 

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

 

G.              DETERMINATION: 

 

Application challenging the determination by the Principal Building Inspector dated October 20, 2015 finding the properties located at 29 Association Road, Wainscott (SCTM# 300-200-3-22) and 7 Pierson?s Way, Wainscott (SCTM# 300-201-1-5) are not merged and remain two single and separate lots is denied.

 

CONCURRING:

 

CATE ROGERS, Vice-Chair

DAVID LYS, Member

ROY DALENE, Member

THERESA BERGER, Member

 

DISSENT:

 

JOHN WHELAN, Chair

             

Dated: June 27, 2017

 

cc: Building Department

              Planning Department

              Christopher Kelley, Esq.

              Jeffrey L. Bragman, Esq.