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What is “Buildable Land”?

southold town symbolBy Patricia Moore, Esq.

One of the questions given to the candidates by Southold VOICE asked: Set backs are based on total lot size regardless of the buildable land area so it forces the waterfront property owner to apply for variances in every case. Why or why not would you support a correction to the town zoning regulations to remedy this?

I am a land use attorney and since I work regularly with environmental regulations Southold VOICE asked me to explain the question given to the candidates.

The Town has added layers of regulations without reconciling some of these regulations. This question addresses the common problem of applying increasingly bigger setbacks to lots with smaller usable “buildable area” as that term is defined by other regulations adopted by the Town.  A mouthful? Yes, but what it  results in are many more properties unable to meet these setbacks necessitating applications to the local zoning board for variances granting relief from these setbacks.

The Town Zoning Code changed the definition of lot coverage to exclude non-buildable land, however, the Town did not change the setbacks schedule which still includes the nonbuildable land in the lot area.  The side yard, front yard and rear yard setbacks appears on a bulk schedule that is based on whether your residential lot is in the one acre , two acre or five acre zoning district. There is a separate schedule in the Town Code for preexisting nonconforming sized lots which allows owners of undersized parcels to apply smaller setbacks if your actual lot size is smaller.  This schedule does not apply if your lot size was made smaller by environmental regulations which is defined as “buildable land area”.  For example, if you have a one acre lot in the middle of a field in a one acre zoning district then your front yard is 50 feet, side yard is 15, both side yards are combined 35 and rear yard is 50 and you can build a house with a deck, garage, tennis court and pool amounting to 20% of the lot coverage.   Your one acre farm lot can be covered by 8,000 sq.ft. of structures.  If you own a one half acre lot in an old subdivision which is in a one acre zoning district then you may apply the nonconforming lot size for the smaller lot without going to the zoning board.

However, if you are on the water (whether it is the Bay or the Sound) and your one acre lot, zoned for one acre, is bisected by either the Long Island Sound Bluff & Coastal Erosion Hazard Line, or Wetlands,  then you must apply the same setbacks applicable to the farm lot plus 100 feet rear yard from the top of the Bluff, Coastal Erosion Line or Wetlands.  The buildable land on your one acre waterfront lot may be no more than 15,000 square feet but the Town says that you must apply the same setback restrictions applicable to the one acre farm lot, not the nonconforming setbacks.  The Town regulations have stripped your buildable land area down to 15,000 square feet and you can only develop 20% of the property or 3,000 square feet for house, deck, and maybe a pool but the Town still applies the setbacks of a one acre farm parcel.  There is no way you can comply with the setback regulations applicable to a one acre lot.

The solution is simple: If the Town simply corrected the code to apply the “nonconforming setbacks” which provide  reduced setbacks for other preexisting nonconforming parcels to those lots which have to apply the “buildable lot area” of the parcel, there would be fewer variances or the variances that would be required would be smaller.   Waterfront property owners face unique challenges with the multiple and overlapping regulations, these regulations consequently making the waterfront parcel nonconforming.  The attitude I hear is, “well you probably have to go to the Zoning Board anyway, just ask for more variances”.  This adds work to the Zoning Board staff which is on a three to four month delay for hearing newly filed applications and it adds cost to the applicant.  Furthermore, the ZBA is asked to grant 75% variances because the code applies the same rule to the one acre farm lot as it does to what is left of your buildable acre of upland on a one acre waterfront parcel.  What is left unsaid is that the Town wants total control over the waterfront lot without any legally recognized setbacks.  That is not fair or just.

Southold Voice wants to keep this problem on the front burner and we want to see that the rules are as fair for you, the waterfront property owner, as it is for owners of other preexisting nonconforming parcels.

About "Janet Deluca"