10/3/13 update is near the end (under green bar) or is highlighted like this sentence.
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SCTM:  200-917-3-2.1
Acreage:  7.5 (2 acres under water)
Current zoning:  J-2 Business
School District: East Moriches
Prior Applications:  1.  For a Certificate of Existing Use (granted in part by the ZBA).  2.  For relief of covenants which had been agreed to in 1997 in exchange for a change of zone requested by the owner (the Town Board denied most of the relief requested and lifted the covenant against rack storage if specified conditions are met).
Current Application:  For approval of a site plan for the portions of the site not granted a CEU by the ZBA and to implement the Town Board's permission to have limited rack storage under specified conditions.
Existing use:  Marina and restaurant
Proposed use:  Unchanged
Hearing date: Monday, October 7, 4 pm.  The Planning Board will hear the owner's application for legalizing, and granting variances for, the current structures and improvements to be made, including boat racks.

Click on links in text below to view documents.

To see a list of all the documents on this project, or to download any for viewing, printing or saving (with Acrobat 7 or later), click here.

Zoning history.  This site has been a fishing station and then a marina for many years.  The earliest Town record appears to be a 1958 Certificate of Occupancy for certain improvements.  An existing conditions site plan as of 2000 and a survey as of 2006 have been filed. 
The current use, however, has not received all the permits necessary to be fully legalized.  The owner has been trying to do this for a number of years, as is shown in a June 2009 letter by the owner's attorney that describes much of the zoning history.  Today, marinas are allowed only in J-5 districts with a special permit from the Town Board.
Covenants.  In 1994, the Town Board approved rezoning of the property from A-1 to J-2, as part of an earlier, unsuccessful effort to legalize the marina with the condition that the owner agree to certain covenants.  The owner agreed to them, and recorded a Declaration of Covenants with the County Clerk.
The covenants are:
1.  No outdoor entertainment activity.
2.  60-foot buffers along the bay and eastern property line; 40-foot buffer along the north property line, 10-foot buffer along Atlantic Avenue; and 5-foot buffer along any bulkhead.
3.  No future subdivision.
4.  Water-dependent use only.
5.  Rack storage structures prohibited.
In March 2009, the owner filed an application for relief from the covenants. 
In a letter to the ZBA dated 1/6/10, however, applicants attorney stated that its "plans have changed, and it is now committed to operating the existing marina with ancillary restaurant, boat repair, boat storage, boat rental and associated marina uses" and therefore will "amend its pending Town Board application".  Although it has been said that the owner still wants rack storage to be permitted, it says it "has no intention to extinguish the other covenants and restrictions that were imposed by the Town Board, including the one that states that there shall be no outdoor entertainment activities.  The application for relief has been dormant.
Certificate of Existing Use.  In October 2009, the owner filed applications with the ZBA for (1) for a Certificate of Existing Use (CEU) and (2) for an extension of a non-conforming use
The ZBA heard the application on December 16 and closed the hearing.  The applicant submitted photographs showing the site in the past, and gave the dates and sources of some of them on the record.  Testimony was given regarding the dates of certain structures and uses, but was not very specific (see Windswept's attorney's description of the evidence).
  Other submissions were submitted as well. 
On February 3, the ZBA granted Windswept a limited and conditional CEU that
1)  recognized marina, ancillary restaurant and boat repair uses on the site prior to 1959 and
2)  the existence before 1959 of "1950 sq. ft. portion of the restaurant and the 1568 sq. ft. portion of the office/rental building located on the far east side of the site".
For the CEU to become effective, however, the applicant must legalize later-built portions of the restaurant and the office/rental building and other improvements.
Site Plan Application.  Attempting to complete legalization of the site, on May 10, 2010 the owner filed an application with the Planning Board for approval of a site plan.  No new improvements are proposed.  A Full Environmental Assessment Form was also filed.  The elevations for the restaurant and for the "marina" (buildings besides the restaurant) show the portions said to exist prior to 1959.  Another plan show lighting and natural/vegetated areas.
Significant comments have been given to the applicant by the Planning Division and Highway Department.  They will required additional submissions and possibly will necessitate changes on the site not affecting the buildings.
Revised Application for Relief from Covenants.   The owner had applied for relief from the covenants described above in March 2009, but had not pursued it.  During site plan review, it was noted that there were violations of some of the covenants (particularly as to buffers), and that they had to be cured before continuing with the site plan review.  On 9/23/10, a revised application for relief of most of the covenants was filed, along with a revised Full Environmental Assessment Form.  Relief is requested from the covenants regarding outdoor entertainment, the buffers, and rack storage.  The reason given in the revised application for seeking relief is as follows:
"The current restrictions unreasonably burden the Subject Property and limit its marketability. Removing the covenants and restrictions will maintain the Windswept Maria as a, state-of-the-art marina and restaurant. Continuing the existing restrictive covenants is oppressive and provides no substantial benefit to the Town or adjoining property owners. In fact Windswept believes it will suffer financial loss if not released from these onerous restrictions."
The impact of relief on the covenanted 60', 40' and 10' buffers is depicted in a slightly revised plan of lighting and natural/vegetated areas.  
The reference to "marketability" is not further explained.
Water's Edge Restaurant.
Relief from the outdoor entertainment covenant is sought to improve business at the Water's Edge restaurant that opened in the summer of 2010.  It had been preceded by several restaurant operators who had not continued in business. 
Water's edge held an "Opening Night" in August.  The scene that night is recorded in a video the restaurant has been featuring on its website, and in a YouTube video.
Meeting with the Owners and Their Representative on 11/3/10.
The owners and their representatives and about a dozen residents met and discussed the owners' application for relief from covenants prohibiting outdoor entertainment and rack storage and requiring non-disturbance buffers on the site's perimeter.  Residents described potential impacts, and ways of mitigating them to an acceptable level were offered.  (For more on the meeting, see the article in the Press of Manorville & the Moriches article.) 
As a result of the meeting, the owners' attorney has sent a proposal for modifying covenants rather than eliminating them.  A new revision of the light and natural/vegetated area plan (received 11/8/10) shows the proposed location of the boat storage racks. 
Town Board Hearing, 11/9/10.
The owners argued for modifying the outdoor entertainment, rack storage and buffer covenants, and residents spoke against doing so.  Modifying the outdoor entertainment covenant received the strongest objections.  The hearing testimony was described in an article in the Press of Manorville & the Moriches.
The owners submitted various exhibits for the Town Board's consideration.  Among them were a petition signed (it was reported) by 130 persons; many of the signers were not local.  They also submitted an aerial map showing distances of nearby residences from proposed source of outdoor music and a 1993 acoustical study showing the decibel levels at various nearby locations of music played on the Windswept site.  The report contains no description understandable by a layperson of the type of music or sounds generated and measured; it does suggest using a band shell to confine sounds.  The owners also submitted photos of boats reportedly knocked off blocks by a storm.
Because of Town had commenced SEQRA compliance only recently, the hearing was not completed, but was to be continued on Tuesday, 12/21.  On 12/21, however, no testimony was taken and the hearing was adjoured to 1/25.
At the work session prior to the 12/21 meeting, the Planning Division representative reported to the Board regarding rack storage.  It had been argued that Windswept should be allowed to have rack storage because the marina across Atlantic Avenue has it.  The racks there, however, have never been approved by the Town, it was reported.  Susequently however, at the Town Board's work session on 1/20/11, the same person reported that the other marina has a Certificate of Occupancy.  The apparent inconsistency is currently without explanation.
SEQRA step taken.
The Planning Board took on the role of lead agency under SEQRA, and on 12/20 issued a negative declarating, that is, a finding that the proposed relief of covenants and site plan would not have any potentially significant adverse environmental impact.  This eliminated the requirement for a full environmental impact study of the requested changes.
The Town on the buffer issue.
At the Town Board work session on 1/20/11, a copy of the site plan marked up by the Town Division of Environmental Protections was distributed to Town Board members.  It shows DEP's views on the buffer changes requested.  The plan proposed by the owner has been approved on the whole by DEP.
Relief Requested modified.
Some of the issues being discussed were described in a recent press article.
In discussions, the owner modified what it was requesting somewhat.  In proposed amended covenants circulated on 1/21/11, the owner presented its position on all the requests for relief.  Regarding the outdoor entertainment covenant, it stepped back from some concessions.  It is willing to accept the following restrictions on outdoor entertainment: 
(a.) Outdoor entertainment activities shall only be permitted from May 1st to September 30th of the calendar year; and
(b.) The hours of operation for outdoor entertainment activities shall be four (4) days a week, from noon to 10:00 p.m., and on Sunday from noon to 7:00 p.m., except that when the Sunday is a holiday or immediately precedes a holiday the hours of operation for outdoor entertainment shall be from noon to 10:00 p.m.
These restrictions, however, would last only for 1 year unless there were 3 convictions for violations of the Town's noise ordinance within the year.  With 3 convictions, the original covenant against outdoor entertainment could be reinstated.
With respect to the buffer changes, the proposed amended covenants keep the 10' buffer along Atlantic Avenue, but provide an exception for access and egress.
1/25/11 Hearing
A large number of residents attended the hearing.  Most community speakers focused on the outdoor entertainment covenant, and were resoundingly against any relief for it.  EMPOA submitted a letter describing comments that had been made at one of its meeting, opposing relief of the outdoor storage covenant and supporting nearby residents.

Comments from Town Board members gave the impression that the Board would not grant relief for the outdoor entertainment covenant.  A vote was not taken because there was uncertainty on the rack storage covenant; the thought was that more time would allow the applicant to try to work it out.  The Board therefore closed the hearing but allowed written submissions to be filed by 2/9/11.
At the hearing, Council persons Fiore-Rosenfeld and Bonner stated that they would vote against relief of the outdoor entertainment covenant.  The positions of Councilpersons Panico, Walsh, Lesko and Mazzei were reported in a 2/2/11 South Shore Press article.  Generally, they did not take a definite position and were awaiting the 2/9 submissions.  Only Councilman Mazzei stated a definite position, saying "I don't think a couple of hours of sound is going to affect the quality of life". 
Written submissions (of which EMPOA has a copy) were filed by the owner, an attorney for a group of residents, and residents Lemyre and Gleason
2/15/11 Relief of Covenant Decision
During the public comment period of the Town Board's 2/15/11 meeting, 5 residents spoke on the covenant relief application, particularly against relief on the outdoor entertainment covenant, while other residents displayed signs.  You can see the signs and listen to 4 out of the 5 speakers on a video (speakers start at 1:13:00) (on another website).

Councilman Dan Panico moved 1) to deny relief of the outdoor entertainment covenant, 2) to allow relief on the buffer covenant in a way that would require improvements in the buffers, and 3) to grant some relief on the rack storage. 

He said 2-high racks would be permitted inside the buffer along the ballfield boundary, and 1-high racks would be permitted inside the buffer along the marshland on the east but they have to be screened.  The details of rack storage are to be reviewed by the Planning Board and must be approved by it prior to installation.

Other Board members supported Councilman Panico, except for Councilman Mazzei.  He abstained saying that he agreed with part of Councilman Panico's resolution, but disagreed with other parts.
The specifics of the covenant amendments allowed for the buffer and rack storage covenants are in the resolution passed by the Town Board.  The Board denied relief of the covenant against outdoor entertainment, but allowed changes in the buffers and rack storage under specified conditions.
The Board's decision meant that the owner next had to proceed with its site plan application.
A new site plan.
For nearly a year, little happened on the public front.  Applicant was busy, however, working with the Town's Planning and Environmental Divisions.  The Planning Division comments on the application in a 4/29/11 letter and a 1/25/12 letter.  Applicant submitted several site plans, the most recent being its 3/7/12 site plan.  Its positions on many of the issues were explained in its attorney's 3/8/12 letter.
The new site plan includes significant changes.  There are more racks, and they extend farther south on the east side of the property.  They are 2 racks high, and with the lower rack highs enough that cars may be parked under them.  Below are the plan that was before the Town Board and one that was recently given to the Planning Board.
                      Click on image for a larger pdf version.
Plan before the Town Board
Click on image for a larger pdf version.                 
Plan before Planning Board
 With the latest plan, the traffic flow on sight will be very tight.  Here is a depiction of it.
Click on image for a larger pdf version.
 Plan with parking, travel lanes, & storage added in color
Applicant has also been busy starting the changes in the buffer that the Town Board allowed, and has removed previously existing vegetation on the property's northeast perimeter. This will make the racks all the more visible if not fully screened.
Click on image for a larger version. 
4/14/12 View from Moriches Island Road
Applicant filed the covenants required by the Town Board's decision on relief of covenants and the Town Board accepted the covenants as filed on 3/1/12, making them "official".
At its 4/9/12 meeting, the Planning Board had an informal discussion of the application.  It held a discussion at the 4/23/12 meeting; Planning staff had prepared plans and photos to show the Board at that meeting. The agenda for the 5/7 meeting gave the topic as "Proposed boat rack location", but it was adjourned to the 6/4 meeting. 
6/4/12 Discussion of Rack Location
Applicant presented its plan for 4 sections of racks holding 92 boats, as shown in the plan above, with 2-level racks on the north and 1-level racks on the east.  Its representatives stated that only boats of 25' or less could be placed on racks because the lift could not handle larger boats.  They confirmed that the bottom rack would be about 9' above ground, and that a boat would be 10' high, making the total height 19' where 1 level of rack is called for.  Applicant's landscaper testified that he was sure that the proposed plantings would screen the racks and boats.  Applicant's attorney said that nothing could be done about the impact of the racks and boats on the viewscape from the bay.
EMPOA's representative pointed out that the Town Board had set the general location of the racks, and the plan before it did not include the southerly set of racks on the east side.  The Town Board had allowed the Planning Board to adjust the "precise location" of racks, not the general location.  To know what the Town Board meant (if the Board had a question), asking the Town Board was the right thing to do.
In addition, he said, to decide the racks' locations, the Planning Board had to take into account impact on the viewscapes from Moriches Island Road and the bay, and the ways of mitigating that impact.  Screening and height reduction should be figured out before deciding on location because the issues are interrelated.  Parking under racks would significantly affect height.  Any planting would take time to grow, and racks should not be installed until they are screened.  Applicant's attorney responded that the 4th set of racks resulted from limiting the easterly rack to 1-level.  He did not say that was part of the Town Board deliberations.
     *****     10/3/13 Update From Here to End     *****     
At its 7/16/12 meeting, the Board voted to allow the racks to be 15 feet back from the northerly boundary and 5' back from the easterly boundary, as shown by a letter from the Board's Chairman.
ZBA Grants Variances, 2/6/13
Applicant needed variances both for the rack setbacks and for the existing signs; the ZBA heard the application on 12/12/12.  It asked for a 14' 6" setback rather than the 15' setback the Planning Board had approved for site plan purposes.  The Chairman was concerned about a decision that was inconsistent with the Planning Board decision, and requested input from the Planning Board.  Apparently none was received.  The ZBA approved a 14' 6" setback, as well as variances for the existing signs (with a minor exception).
Applicant's "Final" Proposed Site Plan and Variance Requests; Hearing 10/7/13
During 2013, various Town staff and applicant's representatives have been attempting to work our issues first laid out in a January 2012 letter to applicant.  Formal written responses from applicant came in May 2013 from its engineer and its attorney.  It filed a revised site plan dated 7/29/13.
The revised site plan does not meet all the requests from the Planning staff, and applicant is not willing to agree to them. As a result, a hearing on the site plan was schedule for 10/7/13.
Issues involving variances are discussed below.  Other Staff recommendations also reflect issues (emphasis has been added in quotes):
"5. Applicant to remove parking from under boat rack storage, Town Board covenants reflect a two level storage system along the northerly and westerly portions of the site, and a one level storage system along the easterly portion of the site, the presence of parking under these racks would constitute a third level and second level, respectively." 
The site plan shows 2 level racks for 56 boats on the north side and single level racks for 36 boats on the eastside.  It also shows that car will be parked under the boat racks.
"12. Fully enclose dumpsters with 6’ high stockade fencing or chain link with slats fencing including gate area."
This fencing is not shown on the site plan. 
"14. Proposed evergreen tress shall be located to maximize screening of boat racks from the Moriches Island Road viewshed." 
By the recorded Town Board covenants, applicant agreed "[t]hat all dry rack storage shall be required to be screened with shrubs, trees, and landscaping, which species shall be determined by the Planning Board at the time of site plan review and shall be continually maintained in good health and replaced when necessary." 
The landscape page of their proposed site plan show that the only evergreens to be planted by the northeast racks to protect the viewshed from Moriches Island Road are 10 8' red cedars and 5 6' hollies.  There is no plan to show how they will be arranged or that they will screen the racks with large boats on them.
And quite a few variances would have to be granted for it.   As shown in Planning staff recommendations to the Planning Board, staff does not agree that all these variances should be approved.  Here are the issues:
20% of site must be landscaped or natural area (Code 85-50.A.1.  Little landscaping is provided except along the north and east boundaries and atop the proposed berm.  The site plan says that 16% of the site will have non-fertilizer dependent vegetation.  Staff has not objected.
Front yard parking (Code 85-356).  Parking in the front yard is prohibited by the Code.  This, however, is where most restaurant patrons park and at times there is no space elsewhere on the site.  Staff has not objected.
Half of required landscaping or natural areas must be in front yard (Code 85-50.A.2). This would not appear to be physically possible given space constraints. Staff has not objected.
All parking must be paved with asphalt or concrete (Code 85-355.A).  Applicant wants to leave the parking areas as they are.  Staff asks for asphalt or a permeable surface for the parking area in front of the chain link fence (Rec. 4), but does not object to leaving parking along the slips unpaved.
15’ deep landscaping along street (Code 85-50.A.4) No front yard landscaping is offered in the site plan other than the old plantings in the concrete raised areas.  Staff has not objected.
Parking areas must be screened with a hedge, berm and/or decorative wall or fence (Code 85-50.A.7).  Applicant points to the concrete planters, but they screen next to nothing.  Screening the parking area would, however, also mean screening docked boats and, from some angles, the restaurant.  Staff has not objected.
400 square feet of landscaping is required per 25 stalls (Code 85-50.A.8.a).  This is not provided for in the plan.  Staff has not objected.
Street trees (4" trunks) must be planted every 30 feet along the street (Code 85-50.A.3).  Applicant shows 10 street trees in the planters along Atlantic Avenue on Sheet C-2 of the site plan, but has asked for a variance from this requirement.  Staff calls for the trees to be planted (Rec. 13).
Sidewalk and curbing.  The plan calls for a 5' wide sidewalk, a 2.5' grass strip and a 6" curb to be constructed along Atlantic Avenue in what is now part of the street.  At the southern end, this would reduce the width of the roadbed from 30' to 22'.  Applicant has requested a waiver; staff has not commented.
25’ buffer with plantings equivalent to 3 rows of 7’ high evergreens, planted 5’ apart (Code 85-50.B.2.b).  The Code requires this buffer along adjacent residentially zoned property, which this site has to the north and east.  Significant plantings are proposed on parts of the north and east boundaries in a buffer that is greater than 25' wide in part, but tapers down to nothing on the west and south. Staff has not objected.