Town of Southeast Zoning Board of Appeals Minutes of July 16, 2018

Transcription

1 Town of Southeast Zoning Board of Appeals Minutes of July 16, 2018 Timothy Froessel, Chairman Paul Vink, Vice Chairman Roderick Cassidy Greg Wunner John McNeill Mary Alice Shallo Steve Corozine Willis Stephens, Jr., Town Attorney Victoria Desidero, Secretary Cathy Chiudina, Assistant Secretary Present Present Present Present Present Present Present Present Present Absent Work Session: Regular Session: 1. Jane and Robert Monahon 200 Dingle Ridge Road, Tax Map ID Continued Public Hearing to review an application for a proposed accessory apartment that requires a variance for lot size where 2.25 acres are provided and 5 acres are required as referred by the Planning Board. Jane and Robert Monahon were sworn in. Chairman Froessel: I do not see Mr. or Mrs. Monahon in the audience. I think what we will do, Victoria, is we will skip them in case they show up. We will take them if they show up. If they haven t shown up by the end of the evening we ll put it over to August and if you could contact them and let them know that they need to come in August and that we are voting one way or the other. Victoria Desidero, Secretary: OK. Chairman Froessel: OK thanks. 2. Partners Management, LLC (Bull & Barrel) 988 Route 22, Tax Map ID Continued Public Hearing to review an Application for an Appeal of the Building Inspector s Notice of Violation Regarding the following Sections of the Zoning Ordinance: 54-11(C); ; ; and Chairman Froessel: We will move on to Item #2, Partners Management. Good evening gentleman. Mr. Liguori: Evening Chairman, members of the Board. My name is Michael Liguori; I m an attorney at Hogan & Rossi in Brewster, NY. I m here with Rick Cipriani. Rick (Cipriani) is one of the principals of Bull & Barrel. Boardmember Vink: I want to remind you that you are both still under Oath. Mr. Liguori: Yes. So we are here tonight for the Continued Public Hearing in connection with an Appeal that we made following the receipt of Notices of Violation from the Building Department. I m not quite sure how to start this thing back off with you on this: if we should do a recap or Rick (Cipriani) has some material that he d like to present to the Board. Page 1 of 20

2 Chairman Froessel: Is there anyone who wasn t here last month? Boardmember Wunner: Me. Chairman Froessel: Greg (Wunner)? Boardmember Wunner: Can I hear a recap? Mr. Cipriani: Sure, I felt last a lot of questions were jumping around and what I spent the time today was kind of narrowing it down to focus obviously from take aways from the last meeting, kind of what the key points were and not bring so much of the non-relevant stuff Chairman Froessel: And before you get going: I understand all the there was a lot of conversation about the occupancy of the building and how many people were in the building; to me that s really not a part of this application. This application is about the Use. There was a lot of conversation and I kind of felt like we were going off on a tangent. There were no violations issued with respect to the number of people that were in the building. Mr. Cipriani: Right. Chairman Froessel: And I don t see that as an issue Mr. Cipriani: Right. Chairman Froessel: So you don t need to address that. Mr. Cipriani: Sure, sure, OK, so I ll start. So basically what I believe we re here for is that the Zoning Board of Appeals is here to interpret the following: Two things to just kind of narrow it down in my opinion; that the actions and events leading up to that occurred on February 24, 2018 either are or are not incidental to the Zoning Code and Certificate of Occupancy issued to the Bull & Barrel, meaning the definition of a restaurant in the Code is minimal of what one can do and one cannot do. The other item is that we were issued a violation that there was a change in the nature of Occupancy without required permits and I believe that might resemble the change of Use which is from being a restaurant to a concert venue as Mr. Levine had indicated. So basically at this time I want to review and update you from our last meeting. I think we re all in agreement that the State Liquor Authority, you know we all deemed that a restaurant can play music, can have a DJ, can do dancing; nobody is questioning that I believe. We understand that the history of Scioritino s being a three story catering hall, still in that NB1 Zone and had weddings, sports awards ceremonies, did fundraisers where there was live music and entertainment involved and we also occupy that space; converted it a little bit where we have a restaurant on one floor (200 seat restaurant). We did keep the top floor as a banquet. We do have a brewery and we also have an outside seated beer garden area. Our primary revenue comes from food and beverages that we have for people coming into the restaurant. We ve been in business about five years. In those five years I estimate we ve probably done well over 200 events. Events can be defined as hosting a wedding in the banquet room, hosting a fundraiser in the main room, having a band on a stage for a Saturday night. New Year s Eve we issued an event where it was $75 for all you can eat, open bar package or for $10 you can go in and just view the entertainment and not have to pay the high price because you don t want to eat the five course meal. This kind of brings me to one of the topics that I think we all were discussing at the last meeting and that was that tickets were sold with no offer of food or beverage. It s kind of where I know one of the sticking points that it came from. That to me is no different than the coverage charge that we do for events on an ongoing basis. Hence the concern was by selling tickets without offering food or any beverage we converted ourselves to a concert venue. Meanwhile let me add that a coverage charge is very common in the restaurant business to offset the higher expense that a band or somebody brings in. So, let me make you aware that there was really only one difference the night of February 24th was the fact that we received such an abundance of phone calls and inquiries for this dinner and a show that we actually presold all our dinner reservations and our occupancy Page 2 of 20

3 tickets to a count of 400 where we were unable to sell tickets anymore. Typically for the 200 priority events we would get 50 dinner reservations, we would get 80 dinner reservations, and on good news we d get 120 dinner reservations and 50 or 60 or 100 people coming in after the fact but because of this one name, this band, that brought in a higher awareness or a higher attraction but this event was also coupled with the Westchester County Firefighter Society, the Kelly Oyster School of Irish Dance, and the Steven Driscoll Fraternal Order of Police Memorial Pipe band. I believe last time I gave you the wrong poster that I ve had that I submitted that said what was going on that evening that it showed not just a band going on at 10:00 but that there was little step-dance girls doing a fundraiser at 8:00 and then it went to the older guys at 9:00 and led up to the 10:00 show so I have this if people need for reference. So you know I have to say that we re in the customer business that just like any night last Saturday night someone calls up and says I d like a dinner reservation of 10 people, I want to sit in Suzy s section, and I want a view of the TVs. We kind of accommodate that because that s what people are asking for and we kind of do that because we are in a customer driven business. That night there was really no difference where people called and said yep I d like a dinner reservation, I m purchasing tickets to see the Kelly Oysters or people are saying nope I want to be upstairs with the band members because I m a friend of theirs but I m going to pay my ticket and they go upstairs and they do their own thing so there s a lot of moving parts in a restaurant. There are also different characteristics to a concert than a restaurant holding live music and I want to point out a few of those because I didn t touch on this last time. First and foremost, can we all agree for the most part, concerts do not refund tickets? Concerts are: you buy your ticket, you re done. If you can't sell it you have to sell it a friend to go to the event. I bring you this slip that shows that the night or the week or two prior people had cancelled and we had refunded their coverage charge because we re not a concert, we re a restaurant with seats and dinner, our primary business is food and beverage that when people come to see a well-named band we re going to get more people in the door we re going to sell more food, we re going to sell more drink. So we did refund tickets to people that cancelled in advance. I don t think a concert would do that. We also never printed tickets. We didn t have assigned seating. When you usually typically go to a concert and it says your seating is row 3 J24 whatever it might be. It didn t exist because we re not structured to be a concert. So that s kind of the one aspect of it. One more I know we bounced about with incidental use of moving tables and stuff like that. What I want to show you as an example and I brought this up last time but I want to narrow it down because I think it brings to light more information that was not brought up. Everyone knows Las Mananitas is a similar is a large scale restaurant. They have some outside space, they have some catering space, and they do music as well. I kind of look at them as almost an apples to apples but we re a brewery and there are different things that go on. Their Certificate of Compliance for 2014 says Las Mananitas can operate as a restaurant with a total occupancy of 120. I m assuming everyone has been to Las Mananitas and has seen their open space outside that they use for different events, hosting. So right now it s empty, there s nothing going on in this space. In this picture they have 10 tables of 6 seats per table which looks like for a catered outside event, maybe a wedding, maybe a celebration, maybe a confirmation I don t know; 60 additional seats brought to this space. On Cinco de Mayo they didn t use any tables and they left it as standing room only with probably, I don t know I m not going to guess how many people are out there in this outside space. They had to bring in port-a-johns for additional people. They also put up a tent to cater to that evening. Chairman Froessel: Did they charge people just to walk through the door. Mr. Cipriani: They did have a food and beverage price package I noticed. Page 3 of 20

4 Chairman Froessel: A food and beverage price package. Mr. Cipriani: That is my understanding. What I want to get to though is the point is for this occupancy where there is a change of use in the nature of the occupancy is obviously I brought to your attention that Mr. Levine issued an Order to Remedy and gave him a violation because he put up a tent without having the proper permits in place. So he was OK or is OK with the changing of that space from seats and so forth. As I told you in that picture there were 60 seats outside. His occupancy is 120. That tells me that a minimum of 50% of his seats were changed for the nature of that event or different events that go on. I am telling you that we had a 30% decrease in our seats so we are well within a different range and I hope that just because we were asking questions about oh if we change one table or two seats is that incidental or not incidental to a change of Use. So I m giving you an example of a change of Use so I m giving you an example that I came across that we only removed 30% of the seats and the bull for the purpose of creating better flow to the bar to increase our sales and our revenue. When you have tables with a bar and that many people they can't go to the bar, they have to wait longer in line which means I don t have a $6 turn on my beer as often as I would. My Operational Permit and my signed, stamped architectural drawings with my seating capacity for the night of the event as my original layout was well over the 424 people I had and I know Mr. Levine pointed out this but I only removed tables and the mechanical bull, not to increase my occupancy to 500 or 600, that was not the point because I still kept it below the limit that I ve had as if I had all the seats there. The purpose was for better flow to the bar. So that is it. Mr. Liguori: We were having a discussion about the cover charge and I think one of the keys is that, and Mr. Cipriani can speak to the revenues generated, but it s a necessary offset to have live music as an attraction to get people to your restaurant. If you re going to have live music as an incidental use you have to be able to offset it. You can t offset it just with the profit from food and beverage only. It doesn t work. Boardmember Vink: If you re going to have a concert sized band that s true. If you re going to have Joe come in and play his guitar then that s not true, you don t need that. But if you are going to have a concert then yes that probably is true. Mr. Cipriani: I ll give you a real numbers example: Tuesday night line dancing $150 is what the line dancers charge us. We don t charge a cover charge, we don t charge a fee to allow the people to come in and dance because they spend that much, the customers spend that much in more in the revenue to offset that. Wednesday night Trivia Night: it s a $150 expense that we write to the trivia guy hosting the event. The amount of people that he brings in, I mean their food and drink, helps offset that cost. Any band, musician is $400 to $2000 depending on who they are. We do not offset that with people that just come in so the necessity to charge either $5, $10, or $20 based on the fee of their business. We never break even, but it helps offset that. What we ve seen in our business is typically on a Saturday night if there is nothing going on our sales will be here. If we bring in any form of entertainment or excitement that makes people want to come to us in and above itself for food and beverage to see something and then me on the backend gets the food and beverage sales, our numbers are always higher. It s just a part of the restaurant business. You can look on everyone s website in the Town of Southeast from Tilley Foster to, well 121 is North Salem, but to what Rich does at ClockTower to what O Connor s does with DJ nights and things like that; it s all to bring in more people. Boardmember Vink: But Rich at ClockTower doesn t charge a cover charge, you re not required to buy anything, you can walk into his place and sit there and just listen to the music. You re not required to make a reservation. There is no cover charge, I ve never seen him Page 4 of 20

5 charge a cover charge and I think that s a very major distinction. He s not selling tickets, if you show up you show up. Mr. Cipriani: It s a business choice that he makes yes. Mr. Liguori: So what you re saying is: you can have music, you just can t have popular you can t have a popular band. I mean that s really what you re telling us. Boardmember Cassidy: You can't charge to have the entertainment. You can t just have the entertainment I think is what Mr. Liguori: Well we didn t have just entertainment; you can t just have entertainment I think is what Mr. Liguori: Well we didn t have just entertainment; the restaurant was open the entire night. Chairman Froessel: But what people paid for was just to get in the door and see the entertainment. Food and beverage was completely optional. Mr. Liguori: That s right but that s not uncommon in restaurants that have incidental Chairman Froessel: That s why you run a restaurant so you can sell food and beverage. Mr. Liguori: That s why we have bands, they have bands. Mr. Cipriani: I get people there is no statistic of anyone paying a cover charge to go in and then not buy a single drink or single food or beverage. I don t know of anything like that but it s also optional. That person can say oh you have a cover charge tonight? Who s playing? Nah I m not interested and they re more than welcome to leave. We don t force them to come in. It s an option. Boardmember Cassidy: Do you ever have bands and not charge a cover charge? Mr. Cipriani: What s the definition of a band? More than one person or can one person be a band? Boardmember Cassidy: I ve eaten at the Bull & Barrel and seen a band and there s no cover charge. Mr. Cipriani: There s no cover charge up until a certain hour, until about 9 or 10 pm so maybe you were in earlier and the band started at 10 or, for example, Thursday night in the beer garden we have an acoustic player and no one pays. Mr. Liguori: But I think there s a connection. The connection is: how much is it costing Bull & Barrel to bring that band to come to Bull & Barrel. Boardmember Cassidy: No, I disagree because the definition of what a concert is has nothing to do with what the cost is. Mr. Cipriani: Well concert tickets charges concessions. Mr. Liguori: Hold on, hang on one second. If it only cost Rick (Cipriani) $100 to have somebody come play a guitar, all right? It may not be necessary to charge a cover to supplement the profit because you re going to make that in food and beverage you re going to be able to absorb that, OK? Other live music you may not be able to absorb just in the sale of food and beverages alone. I think we can agree on that. Mr. Cipriani: It s more of a marketing expense that people say wow I saw that band there but guess what I couldn t, it was sold out. Next time they come I m going to make sure I get a ticket early enough that I can see them. Boardmember Vink: ((( 17:41))) making our point. Mr. Liguori: Look, the point is that you have a band to bring people to your restaurant because you get profits from the sale of food and beverages, that s the point. Boardmember Cassidy: So does Madison Square Garden. Mr. Liguori: Yeah, so what? Page 5 of 20

6 Mr. Cipriani: But their concessions, they have a different food setup. There food setup is you go up you get water, you grab it and go back to your seat. We have sit-down dining service where it comes from a restaurant, it doesn t come from you re standing at a counter. Boardmember Corozine: Unless you re in a luxury box. I mean that s semantics. Boardmember McNeill: I know this band has just played at Tilley Foster and you had to pay to get in, you know you had to pay to get in there. You can t penalize a guy because he does it better than the other guy. You know what? ClockTower Commons, you know what if they were smart enough to get this band in there they d have to charge the same thing that he s doing. You can t penalize a guy for doing it better than the other guy. I don t know, it is, it s semantics that you guys are talking about Mr. Cipriani: I said I d agree with you if I got rid of 50% of my seats and shut down my food and closed the kitchen I d be a concert. Boardmember McNeill: Yeah. Mr. Cipriani: Food and beverage was running all night long. Boardmember McNeill: Right. Mr. Cipriani: I had 140 dinner reservations that I never get on any Saturday night and umm we stayed open like I said the food and beverage. We worked with the Town, we worked with the Code Enforcer, we worked the Fire Marshall showed up that night and wished us a great night. Parking was great. Passage to egress was all there. We did nothing wrong. We worked with individuals up until the night until 6:00 when after the Building Inspector called my architect, asked for special drawings, worked with him. I got an $800 bill from my architect for work on the drawings. He was OK with all that but he deemed for some reason or another that it was considered a concert and now I m $5,000 in lawyer fees for this incident. Boardmember Vink: He deemed that to be the case before you had the concert so you went forward with the concert and your fees are on you. Mr. Cipriani: Well I would have lost my deposit on the band, I couldn t and I felt we were not doing anything different. Boardmember Vink: That was your business decision. That s what you chose to do. Sometimes it s easier to ask for forgiveness than permission but that s what you chose to do. Mr. Cipriani: We operated, I feel we operated and hopefully my point was tonight to show you that I operated the same way that I did with the 200 prior events. Put them up in a quarantined area, we charge a cover charge at 9:00, everyone came and everyone called beforehand, they all wanted to know the reservations, we sold it up until the point I said wow we sold 400 tickets. Our occupancy is close to 500. I said we re stopping because we have to include entertainers and all that stuff. We thought we did the prudent thing. Mr. Liguori: I don t think there are any other issues. I don t know about you guys but that seems like the big ticket item: is the cover so. Boardmember Cassidy: Well he just said we sold 400 tickets. He didn t say we served 150 covers. Boardmember McNeill: Does that matter? Honestly, does that matter? Mr. Cipriani: It s semantics however I word it or say it. You know I didn t have Boardmember McNeill: Maybe somebody ate before they got there but they wanted to come in and you know what maybe they had a chicken wing at the end of the night. What s the difference? Boardmember Wunner: Is there a way tickets could be structured where it included food and when it would be considered a cover at some point going forward? Boardmember Cassidy: They did it on New Year s Eve. Page 6 of 20

7 Mr. Cipriani: We did it on New Year s Eve and you get, it was like a 50/50 split so for me to maximize my opportunity being that I can hold 400 people but I only have 200 people on New Year s Eve because New Year s Even most people don t want to go out because of designated driving, because of DUI stops, people would rather be at home, people with kids now do stuff at home. It s a smaller event for us but it was a food package with music and entertainment. Maybe someone didn t have a date so they didn t want to go sit by themselves and eat but they wanted to be in a lively atmosphere that night so they came to a bar/restaurant and hung out and bought one drink or 10 drinks, I don t know. Boardmember Wunner: I guess what I m asking is: going forward, getting past this one night that this occurred, going forward I m trying to help you continue doing what you re doing. Mr. Cipriani: The purpose why we did Boardmember Wunner: (inaudible) Mr. Cipriani: In the past I think that the issue was the pre-sale of the ticket cover charge seems to be the item of contention because in the past I ve always had and other people do have cover charge at the door for music that probably knew the demand for these people. If I had 400 people show up at once the line would have been unsafe outside. Parking wouldn t have been controlled so we decided to move to kind of hey, buy in advance, get your name on the list so that when you show up you can just come in and then we knew to stop after a certain number because if we didn t maybe 600 or 700 people would have shown up and then parking would have been a disaster. It would have been unsafe. We would have had you know we told you we can t count people once they re in and eating and they go out to the back, they come back in and someone comes in and leaves to get their jacket. I can t keep an accurate count of that number by shutting down the restaurant at 5:00 and having a private event of dinner and a show, they come in. We got the number 424, we were very confident that we were right with our numbers of the right people count and that s why we structured it that way. I never had a band this big before that we ever had to cross the safety measures that we did that kind of stumbled us to here today unfortunately. Boardmember McNeill: Had this band been at Tilley a couple weeks earlier you d probably have 1,000 people at Tilley Foster so I mean they re just, it s just a popular band. I think you were prudent to do what you did. Chairman Froessel: Anyone else? You guys have anything you want to add before we close the Public Hearing? Mr. Liguori: No. Chairman Froessel: OK, all right. Before I close the Public Hearing do you feel you ve been given a fair and adequate opportunity to present your application? Mr. Liguori: Yes. Chairman Froessel: OK, thanks very much. We ll close the Public Hearing. I don t sense a need for much deliberation for where we all are on this. I have a written Resolution that I will present and we ll take a Roll Call Vote on it. I will make a Motion, do I have a second? Boardmember Vink: Second. Chairman Froessel: OK, Paul (Vink) with a second. And I ll read it into the record and then we ll vote. The Resolution regarding a request for Interpretation regarding Stateline Enterprises, Inc. 988 Route 22 WHEREAS, Applicant Stateline Enterprises Inc. ( Applicant ) is the operator of the Bull & Barrel Brew Pub at 988 Route 22 (the Premises ), which is located in the NB Zone; WHEREAS, by letter dated February 1, 2018, Town of Southeast Building Inspector Michael J. Levine ( Building Inspector ) sent a letter to the Applicant in which he advised that Applicant s advertised intent to host a live concert with tickets sold for admission to the venue on February 24, 2018 was not a permitted use in the NB Zone, and was not Page 7 of 20

8 incidental to the Restaurant and Brew Pub; WHEREAS, on February 16, 2018, the Building Inspector issued a written Notice to Remedy to the Applicant and the owner of the Premises, in which he stated that the Applicant s proposed event, for which tickets have been sold for a live band, is not considered incidental to the Restaurant and Brew Pub and [t]he proposed use of the premises is not in accordance with the permitted Zoning for the location nor with the Certificate of Occupancy, and directed and ordered the Applicant to cancel the event; WHEREAS, on February 23, 2018, in response to a letter received from the Applicant, the Building Inspector wrote to the Applicant and the Owner of the Premises, and stated that [d]ue to the nature of the event, the Use is not considered incidental to the approved use as a Restaurant and Brew Pub and therefore the Use does not comply with the permitted Use for the zone; WHEREAS, on February 24, 2018, Applicant went forward with the event notwithstanding the notices received from the Building Inspector; WHEREAS, on March 5, 2018, the Building Inspector issued a Notice of Violation to the Applicant and the owner of the premises, alleging violations of Town Code sections 54-11, , , and , and enclosing Court Appearance Tickets for the alleged violations; WHEREAS, on or about May 3, 2018, the Applicant filed an application with the Town of Southeast Zoning Board of Appeals for an interpretation of the Zoning Code, to wit, that: (i) hosting of live music remains an incidental use to a restaurant and brew pub when occupancy count is not exceeded, when food service is continuous throughout evening [sic], when no more than 30% of seating is removed to accommodate restaurant patrons and when appropriate egress is maintained ; and (ii) live music is an accessory use to a brew pub; WHEREAS, public hearings were held before the ZBA on the aforementioned application for an interpretation on June 18, 2018 and July 16, 2018; and WHEREAS, the public hearing was closed at the conclusion of the July 18, 2018 public hearing, for Board deliberation and a vote; and WHEREAS, upon review of all submissions and testimony before the Zoning Board of Appeals in connection with the application for interpretation, it is the Board s intention to memorialize its interpretation in this matter. NOW, THEREFORE, BE IT RESOLVED, that the while the hosting of live music may be an incidental use to the operation of a restaurant in the NB Zone, the charging of an admission fee, whether by advance sale of tickets or collection of a fee at the door, solely to view or listen to entertainment without a reservation of a seat at a table or a seat at the bar, is not a permitted use in the NB Zone, and is not an incidental use to a restaurant under the Town of Southeast Zoning Code. We ll do a roll call vote. Roll Call Vote: G. Wunner Opposed J. McNeill Opposed P. Vink In Favor R. Cassidy In Favor M. Shallo In Favor S. Corozine In Favor T. Froessel In Favor The Resolution passed by a vote of 5 to 2. Mr. Liguori: Can we get a copy? Chairman Froessel: You ll get a copy once it s executed. Ms. Desidero: I ll execute it tomorrow and I ll make sure you get a copy. Mr. Liguori: All right, so what does it mean? Page 8 of 20

9 Chairman Froessel: What does it mean? Mr. Liguori: Yeah, no covers? Chairman Froessel: Yes, that s basically what it means. Mr. Liguori: No cover charge? Chairman Froessel: With an advanced reservation includes a seat is permissible. Mr. Cipriani: So if someone has a reservation at a dinner table so basically if it s food, if there s a food like on New Year s Eve $50 food it s good? Does this apply to everyone? Chairman Froessel: Everyone, it s not just you. Mr. Cipriani: I m asking, I m sorry, I didn t know. Chairman Froessel: It applies to everyone, we don t do this piecemeal. Mr. Liguori: Is there any possibility to add to the whereas that we satisfied the safety concerns because Chairman Froessel: That s wasn t the issue was it? Boardmember Vink: No, that was not part of the application so it s not really an issue before us. It s not part of it; it s out of the scope. Mr. Liguori: It s funny how it s not out of scope the point is that the whereas is reads is first of all, we didn t get the benefit of a copy of the Resolution so we don t get to comment on it. Chairman Froessel: I don t really know that that is necessary. Mr. Liguori: Well other boards give you the benefit but the way it reads, the whereas is indicate that we just ignored what had gone on when you know it could indicate that we did work with the Building Department, the Fire Inspector was there, no Fire Inspection issues were noted. Boardmember Vink: Those are (inaudible) issues that should be heard before a judge, not for an appeal. Mr. Liguori: That s what I m concerned about. Chairman Froessel: Those things are in the record Mike (Liguori) and I stated, I don t think the occupancy was ever an issue. 3. North Salem Limousine (Steven & Maryanne Miras) 487 North Salem Road, Tax Map ID Continued Public Hearing to review an Application for an Interpretation of whether or not the proposed limousine business fits within the definition of a Home Occupation per Section of the Town Code. Boardmember Vink: I d like to remind you that you are still under Oath. Ms. Desidero: I m sorry; I wasn t here last time so I just need the names. I know Mr. Miras but I don t John Miras: John Miras. Ms. Desidero: Thank you. Chairman Froessel: OK so we adjourned last time to so we could have some deliberations on our own and think about this a little bit. You did send us some other submissions, thank you for that. We got the copy of the Deeded Easement; we got your submission about 10 days ago. John Miras: Thank you. Chairman Froessel: I don t know if there s really a whole lot more to discuss although Greg (Wunner) you weren t here last month, right? Do you want sort of a rundown from them? Boardmember Wunner: I could use a Reader s Digest version. Chairman Froessel: Could you just give us a Reader s Digest version of your application. Page 9 of 20

10 John Miras: So my father lives at 487 North Salem Road. It s Zoned R-60. He owns a limousine business on his property; he has three vehicles with commercial plates which are parked in his garage with one in the driveway. Right now he has a two car garage. The question before the Board last time was whether the limousine business is under the Home Occupation definition. I believe that it does because it doesn t bring in any customers; it s simply a place where he parks the vehicles. In addition the Zoning Law permits the parking of a commercial vehicle as long as it s garaged and one that s not garaged and I provided the Board I guess the dispute is over the driveway. My father has a driveway which passes Mr. DePaoli s residence. My father has a 50 ft. Deeded Easement on the driveway going from the road back to his house. Chairman Froessel: It s a common driveway. John Miras: Yes a common driveway. Boardmember Wunner: I did read some of the correspondence that came in, I think I read your letter. John Miras: And then so there was dispute that the vehicles are driving too fast past Mr. DePaoli s house on the common driveway. I provided the Board with other similarly situated limousine companies zoned in R-60 locations in the Town without issue or complaints. The only difference in my father s business is that he has a shared common driveway which he has a 50 ft. deeded right-of-way on since That s the only difference Mr. Stephens: Can I ask a question real quick? John Miras: Yes sir. Mr. Stephens: Those other limousine companies you identified, were they issued Conditional Use Permits by the Planning Board? Steven Miras: I don t know. John Miras: I don t have an answer for that. So I guess the three major points I believe to be are does it meet the Home Occupation as it doesn t bring customers to the house. Regardless the zoning allows commercial vehicles parked on the driveway and no business is being conducted there. We then also applied for the Conditional Use Permit in case you disagreed with either of those two. Boardmember Wunner: So basically you re just storing your cars, your vehicles in your garage? John Miras: That s it. Boardmember Vink: Well when the drivers come they drop their own vehicles off and pick up the limousine but that s the extent of it. It s not just storage; it is in fact the transfer of drivers from one car to another but not customers, just drivers. John Miras: The driveway where these vehicles are parked and where the driver drops off his car is completely secluded from Mr. DePaoli s residence and the residence that goes beyond. It s just they have to drive past on the deeded right-of-way past Mr. DePaoli s house. I think there were some minor issues back and forth last time but I believe that s the main issue before the Board. Boardmember Vink: When the cars are out, how long are they generally out for? I mean is there an average? Steven Miras: You could say an average would be about four hours. Boardmember Vink: OK that makes sense I just wanted your testimony on it. Steven Miras: In some cases the car doesn t even come back. A guy asks for it the next day so he takes it home. John Miras: I would just add that it was the use of the driveway where my father lived; he has 9 children and a wife up the next house, family. I ve lived there. I ve been driving up and Page 10 of 20

11 down that driveway since I probably have driven up and down that driveway since times a day, times 9 children it s a highly driven, at least it was, a highly traffic driveway for the last 30 years. I don t believe the limousine going up and then down and up and then down again at the end of the day is adding anything to that. Chairman Froessel: Is there anyone in the audience that has any comments? Mr. DePaoli, do you have any further comments? Mr. DePaoli: May I step in? Chairman Froessel: You may step up. Boardmember Vink: I will remind you that you are still under oath also. Mr. DePaoli: Fine, thank you. OK, first of all I don t have an issue with the parking. I have an issue with the commercial use that is going on in R-60 zoned area. I wanted to show you guys exactly what their talking about here in case anybody, I don t know if you had a chance to look at that Site Plan, if this is even it. Here s the right-of-way, it s an 80 yard right-of-way that runs along the property. It s not crossing the corner portion or I d run around with my hair on fire, OK. Here s my bedroom. You want to talk about intrusive when cars are going up and down day and night? This is what it was like. I had no issue in the past but again that was a different use but I do have issue with the commercial use. Do I need to last time I don t know if what I read got into the record? Might I read that one more time and it will be brief? Ms. Desidero: It s in there, I mean I know that the minutes are not completed but I do know that whatever was read, if it was handed to us, it s in the minutes. Mr. DePaoli: Might I bring Mr. Wunner up to date briefly on what s going on, if you don t mind? I ll be brief about it. Chairman Froessel: Go ahead. Mr. DePaoli: OK. The other thing I d like to talk about is that when we all started this wonderful endeavor, Mr. Miras knew right from the beginning in 1978 that this when he bought the property or was given the property, he knowingly knew it was residentially zoned. There was no question about commercial use at all. It was pasture and farmland before he cut it up so there s been no pre-existing commercial use. When we bought our property I knew it was burdened by the right-of-way but my understanding is that a residential easement used for residential purpose. Commercial use magnifies the use. This increased use magnifies the intrusiveness that goes along with it. What I d like to do as I said briefly, I worked my last comments off of the AKRF, this consultant for you guys. The Town of Southeast defines a Home Occupancy and I ll be brief; blah, blah, blah. Customary personal service occupation such as dressmaking, limousine is not dressmaking; millinery and home cooking conducted principally by members of the resident family and in the main building only. Right from the Code, OK? The body of the definition specifically in the main body of the building only implies little or no outside footprint and none to minimal impact on neighbors. The implication is not to create intrusiveness or disharmony with existing neighbors. In comparing a limo business with the definition: a limo business is different than a home based dressmaking business. There are employees rather than family members. The nature of this limo business is not to be restricted but to be expansive in that it sprawls across my property based on the commercial traffic it creates. Addressing the intrusiveness and disharmony is as follows: Intrusiveness can be defined by simply looking at the increased driveway usage; one trip for one limo driver equals 4 trips up and down the right-of-way. Multiply that by 3 or 4 limos for 1 trip. Now factor multiple trips. We have had limo traffic day and night for years. Additionally during peak limo time, Friday to Sunday, the uptake in business negatively impacts our ability to enjoy outdoor time based on traffic flow and speeding issues. Regarding disharmony, when Mr. Miras started his business in 1999 without Town approval a Cease and Desist Order was instituted in I Page 11 of 20

12 filed an additional complaint in April 2018 after almost being struck by a Miras limousine in my driveway. The Town again intervened and Mr. Miras moved the business to 481 North Salem Road, the adjoining neighbor R-60 Zone with no Continuous Use Permit while under a Cease and Desist Order. I have four videos from May 2 to May 22 that confirm this. The business has never been legal in 19 years. The Town has been unable to stop him. The police and speed bumps have been unsuccessful. You got my document in the beginning where I gave you guys police reports, zoning complaints, certified letters, letters to the Town, OK? Currently Mr. Miras is building a $50,000 to $60,000 three-car garage in addition to his existing two-car garage. If you legitimize this business there is no way of restricting cars, traffic flow, nor speed. Having exhausted all possible ways of addressing this issue we may have to sell our home that we built, dropping the home value due to commercial use. We would be run off our property by the limo business. This in no way follows the definition of Home Occupancy and the Consultant agrees on page 2 of their memo the Consultant says such definition about Home Occupancy shall exclude automotive services, retail, general business, and light manufacturing. As such, the proposed use does not clearly fit the definition of Home Occupancy. Mr. Stephens: Mr. DePaoli, that thing you just read, was that the statement by the Town Consultant? Mr. DePaoli: Yes, well I don t know. Whoever hired AKRF? Mr. Stephens: That s the Town Consultant. Mr. DePaoli: Yep, from May 10, Boardmember Corozine: Who paid for that report? That was paid for by the Town? Mr. DePaoli: I don t know. Mr. Stephens: AKRF is the Consultant for the Planning Board and to the ARB (Architectural Review Board). They re also at times Consultant to the Zoning Board as well. Boardmember Corozine: So, right, the Town did pay for that report? Mr. Stephens: Most likely. It may have been paid for from escrow funds that are put up by applicants with applications before the Planning Board. Chairman Froessel: This came to us from the Planning Board. Boardmember Corozine: OK, I just wanted to know that it wasn t privately funded, that s all. Chairman Froessel: Anyone else? Any questions? Boardmember Wunner: I just have one question: are you running your business there or are you just storing vehicles there? Steven Miras: Storing vehicles. John Miras: So the entire business more or less consists of him, my father, on the phone you know booking trips. The vehicles go; they pick up someone at the airport and drive them to their home airport, home. The vehicle comes back later on. Boardmember Vink: So the answer is then yes you are running the business out of there. John Miras: He is actually not running the business from there; the business is run between the airport and the customer s home. The only thing that happens on the property Chairman Froessel: He takes reservations and what have you from his home phone correct? John Miras: Most of the time he s not even there, he s it s my father probably leaves in the morning and comes back at night. The whole thing is done with his phone while he s out doing the business. Chairman Froessel: The business doesn t have a separate office somewhere does it? Steven Miras: Correct. Boardmember Vink: Are you driving one of the vehicles? Page 12 of 20

13 Steven Miras: Yes. In fact I m driving two of them because one is an SUV and one is a Town car and when a customer calls up and they want an SUV then I will drive the SUV out so basically it s two of the cars I m driving. Boardmember McNeill: How many drivers do you have? Steven Miras: Three. Boardmember McNeill: Three total? Steven Miras: Total, they only work. Boardmember McNeill: They re part time. Steven Miras: Part time. Boardmember Shallo: How many cars do you have? Steven Miras: Three. Boardmember Shallo: So you have 3 cars, and when you dispatch a car, when it goes out, it s more beneficial for them when they make their run to the airport for them to go to their next customer since they are already dispatched out because it s more cost effective to have those cars on the road than it is coming up and down the driveway. That s the way a limo company works so you re pretty much just dispatching from your phone in your house. Steven Miras: Right. Boardmember Shallo: And this is also a dirt road with some bumps, right? So no one is speeding up and down this road? Steven Miras: Right. John Miras: Very big speed bumps. Mr. DePaoli: I disagree about the speeding and you mentioned that last time and I ll explain to you how someone speeds. If you re running late or running a disorganized business people aren t always on time and that s what creates the speeding. That s what does it guys. Boardmember Cassidy: The speed bumps haven t stopped that from happening? Mr. DePaoli: I wrote I m telling you right now guys, the speed bumps are there. I took the action on April 14 where I was almost struck in my driveway by a GMC Arcadia with speed bumps and everything else so yes speeding has been an issue where I have almost been struck and in a sense that prompted that as well as the addition of two speed bumps which I d like to explain. I ve got three rows of speed bumps. I had two in each one. People were using it as a slalom to bypass. When I almost got hit, two rows, I didn t add any rows, were filled in. That was the extent of it. I put two speed bumps in and I filed a second complaint to the Town. Boardmember Corozine: Mr. DePaoli, I m sorry, you said you were hit or you were almost hit? Mr. DePaoli: Yes. Boardmember Corozine: Which one is it? Were hit or almost hit? Mr. DePaoli: No I was almost hit and would you like me to explain the situation to you? Boardmember Corozine: No I have another question. Mr. DePaoli: OK. Boardmember Corozine: Do we have any documentation about miles per hour in terms of the speeding that s actually going on. Mr. DePaoli: I put two cameras on the house four years ago and both of them did not give me the resolution. If I ve got to step it up I have to go with a company called Reconyx who make basically commercial and military surveillance which will give me speed in my driveway but like I said when I took ownership of this property it was for residential. There was none of this going on back then. This is an R-60 Zone area and in a sense of this is totally intruding and creating disharmony by the operation of this business across the property. It does not meet the definition for Home Occupancy and your Consultant even agrees. Page 13 of 20

14 Mr. Stephens: If I could ask a question? John Miras: Can I just I m sorry. Mr. Stephens: Go ahead if you want to respond. John Miras: It is impossible to drive over those speed bumps at less than 2 miles per hour. They are it s Boardmember McNeill: Does anyone have photos of these speed bumps? John Miras: Yes I do. Mr. DePaoli: The speed bumps are DOT (Department of Transportation) approved. In the beginning documents I sent to you was a copy of a letter that I sent to the Town of Southeast, I sent it to the Building Department four years ago, and I sent a copy to the Highway Department saying due to the situation it has necessitated I have had six inspections of my home in the past three years. I had the Zoning Department come up, the Building Department come, Mike takes out permits, Mike gets the work done, and Mike gets COs and there s been never an issue about these speed bumps. I actually spoke with Mike Levine last time about it and he said it s your personal property; you re not ingress and egress. He said you do what you have to do so that s the correspondence guys on this. These are not like dug in the ground, these are DOT approved. I have the receipt in my pocket for the two from April. It s $292 guys, I am not crazy. I would not spend $1100 in speed bumps unless I had an issue. Boardmember McNeill: In that sense, how can they be speeding if they are DOT approved speed bumps? Mr. DePaoli: As I said, if you don t run a real organized business or you re in a hurry and you re driving a limo you can bounce off of those things guys, OK? I m sorry. John Miras: My father s business is very organized. Mr. Stephens: How long have you been in business? Steven Miras: Since Mr. Stephens: And you ve always had three vehicles? Steven Miras: No. Mr. Stephens: Did you start out with one vehicle and you operated it? Steven Miras: Yes. Mr. Stephens: The question I wanted to ask is: is it your position that if you wanted to have seven vehicles that you could locate them on the site? Steven Miras: No. Mr. Stephens: Well why is it any different than the three? Steven Miras: Why is what different? Mr. Stephens: Why is your positioning? A business is a business. Steven Miras: You are allowed up to three vehicles and that about all I can do. Mr. Stephens: What would stop you from having four vehicles? John Miras: At some point, at some point the Town would have to make a Determination that multiple vehicles, like seven, is turning this into what it s not. Mr. Stephens: Then you are asking this Board to legislate and I don t think that s (inaudible). John Miras: What I m asking them to do is look at what actually goes on and what the Home Occupation definition is and also look at the Zoning Laws and what the Zoning Law is and how all three fit together. Mr. Stephens: Well the definition is the Zoning Law. John Miras: Right, and take into account the letters from all the other neighbors; none of them have complaints. This has to do with has nothing to do with the business it s a longstanding complaint family orientated that goes back decades. There are potholes in the Page 14 of 20

15 driveway, my father fills them in and gets harassed. It s just a continuation of a longstanding issue in the family. Mr. DePaoli: May I address an issue that came up last time here? Chairman Froessel: Sure. Mr. DePaoli: I stood here last time and I appreciated the testimonials I got. However the statement was made by Mr. John Miras, under oath, that there is a restraining order against me by the woman in the back. I called the Sherriff up first thing Tuesday morning and said look it, I just came out of this and this is what I was told. Mike there s nothing there. You re record is totally clean so for Mr. Miras to make the accusations under oath I think that raises some eyebrows but the two people who made their complaint against me provided no documentation and even before I got here I presented all factual documentation and I had video about the ongoing violation of the Cease and Desist. So I guess I have issue with the integrity of the reporters, I have issues with what was said to me last time which since it was said under oath as I said is a problem. So I need to put that on the table before people say hey, they re coming over the hill because I think I need to illuminate another point: that the four existing neighbors that surround currently did not put pen to paper. Chairman Froessel: So all the letters that we ve gotten are not the immediate owners? Mr. DePaoli: No. John Miras: Mrs. Chase is also the other Chairman Froessel: Ms. Chase is the one way in the back and she did provide a letter. John Miras: Yes. Boardmember Corozine: I think there was someone name Dryer as well? John Miras: Mendola. Chairman Froessel: Mrs. Chase is the actual owner of the property on this easement, correct? Mr. Stephens: I thought you were owner? Mr. DePaoli: I own the right-of-way on my property yes. Mr. Stephens: That s not what Mr. Froessel just said. Chairman Froessel: My understanding is Mrs. Chase submitted a letter stating that she s the owner of the entire right-of-way. Mr. DePaoli: No, I own my portion. That s when I spoke to Mike Levine; he said you own the property. Chairman Froessel: Oh really? OK. You have proof of that? Mr. DePaoli: Yeah we did a lot line adjustment a while ago and this is it guys. I own it from down here to right here. This is all mine so I do own it and that how come Chairman Froessel: And that s the right-of-way (inaudible) Mr. DePaoli: This is the right-of-way that goes this way. This is where the business is being operated out of but this is what you re looking at guys. Mr. Stephens: Would you like to submit that as part of the record? Mr. DePaoli: Yeah I guess if I need to, sure. Mr. Stephens: I think that would be good. Mr. DePaoli: OK, sure. Ms. Desidero: Would anyone like to see it close up? Mr. DePaoli: You want to take it? Chairman Froessel: Actually I would like to see it for a second. (inaudible talking amongst board) Boardmember Cassidy: That matches the survey that the applicant provided for the back part. Page 15 of 20