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BEWARE the Zoning Board is legislating

The expansion of the Zoning Board’s power began in January 2002 with the “Walz” decision [that is how the Town refers to this type of variance application].  In the Walz case the property, a quarter acre parcel, with a one story house, was 3 feet from one side yard and 6.5 feet from the other side yard.  The owner wanted to add a second story addition over the “footprint” of the existing house.  Prior to 2002 the “setback rule” was that you could build as close as the preexisting setback or along the established nonconforming setback without having to apply for a variance.  This “setback rule” ended with Walz.

The zoning ordinance permits remodeling, reconstruction or renovation of a nonconforming building with a conforming use [residence] as long as this action does not create a new nonconformance or increase the degree of nonconformance.  In Walz this language was, for the first time, interpreted to mean that if you expanded your house in any direction (particularly vertically) then you are “increasing the degree of nonconformity” and must get a variance before you can build up.  This interpretation made anyone with a nonconforming setback need a variance to do the slightest degree of improvements.  This affected many of Southold’s older communities, but most drastically it affected existing waterfront houses.  Waterfront homes are generally located on land with less than one acre of upland.

For upward expansions, the Walz decision also became the application of a PYRAMID LAW.  A Pyramid Law requires the height of the roof line to step back from the property line proportionately to the setback.  The Town Board tried to adopt a PYRAMID LAW.  At that public hearing there was so much opposition to the proposed law that the Town Board dropped the idea.  The Zoning Board has nevertheless imposed a pyramid law without the legislation.   Expansions of any kind require owners to get architectural drawings of elevations and floor plans to show the zoning board exactly what you propose to build.  This procedure is required whether you need a one inch variance or a ten foot variance.

This decision has given the Zoning Board total control over every design element of the proposed project, and, for the most part, the Zoning Board has tried to apply the rules fairly.  However, in the last year the zoning board has been aggressively denying the construction of a second floor even when the setbacks of the second floor applied the pyramid law concept and the zoning code allows a second floor.

When the Southold Town Zoning Board of Appeals has outright restricted or prevented a waterfront property owner from building a second floor to their home even where there are no neighbors, no one objects, and the neighborhood is developed with other two story homes, we believe that the prohibition of a second floor is out-right legislating.

What is wrong with a second floor?  Common sense tells you that a second floor is an environmentally preferred alternative to expanding impervious surfaces.  The roof runoff is the same, generally the same people are occupying the house before, as after the addition;  the house will be brought up to current building code and energy standards, and the sanitary system will be replaced and brought up to current standards.  Finally, Southold Town will surely increase your taxes so the community & schools will get more money out of the same family.  Finally, is it reasonable and fair to limit your home to one floor with 600 square feet when your neighborhood has already converted from summer bungalows to year-round two story homes?

SoutholdVOICE was shocked to see this over-regulation.  Waterfront property owners should be furious that local government taxes you for your view but then prohibits a reasonable improvement to your property.  The Town Board appoints the Zoning Board, they are not elected.  When a law is wrong, or the Zoning Board’s power has to be controlled, the Town Board must step in to legislate.   The Zoning Code must be absolutely clear that taking away a property owner’s right to build a second floor is too much regulation.

About "Janet Deluca"

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