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Laurel marina owner sues over ZBA ruling

09/15/2016 6:00 AM |

Frank Kelly

The owner of a small marina off Peconic Bay Boulevard in Laurel has filed a lawsuit in state Supreme Court seeking to overturn a recent Southold Town Zoning Board of Appeals ruling that prohibits him from docking boats there that are longer than 20 feet.

Frank Kelly, who owns the 11-slip marina and docks his own 21-foot boat there, said in court documents that the town building department has no jurisdiction to add the 20-foot requirement to the Town Code — and that it gave no justification for doing so.

Mr. Kelly, who purchased the marina on Brushes Creek in June 2014, says the marina use existed before the 1957 inception of zoning in Southold Town and is therefore permitted as a “pre-existing” use under town code. That means he shouldn’t be required to get site plan approval for the marina use from the town Planning Board.

In addition, Mr. Kelly said he already has a permit from the town Trustees and a permit from the state Department of Environmental Conservation allowing the marina to operate without a restriction on boat size.

The town building department had initially required Mr. Kelly to get site plan approval from the town. It also imposed a 20-foot length limit. Mr. Kelly challenged both conditions in separate ZBA hearings this year.

“The building department doesn’t have the authority to define limits with respect to pre-existing uses,” Dan Ross, Mr. Kelly’s attorney, said in an interview. “There is no basis in the building department file for the determination that was made. It was just made.”

Mr. Ross said the building department’s role is to enforce town code and that it has no legislative authority to create or amend zoning.

Meanwhile, Southold Town had already filed a lawsuit against Mr. Kelly in state Supreme Court last year seeking to prevent him from using the property as a marina or recreational vehicle park without a certificate of occupancy allowing those uses. Judge Andrew Tarantino granted a restraining order to that effect last fall that is still in place.

The town has also filed town code violations against Mr. Kelly claiming he lacked site plan approval for the marina, stored a boat in the front yard in violation of code, had a fence over six feet in height and had a non-permitted use, since the property is classified by the town as vacant land.

According to Mr. Ross, those code violations are still pending in town Justice Court. So is the town’s lawsuit.

However, an April ZBA ruling stated that Mr. Kelly didn’t need site plan approval because the marina is a pre-existing use. The ruling also stated that a marina is a permitted use under the property’s M-1 zoning.

But in a July 21 ruling, the ZBA disagreed with Mr. Kelly’s challenge to the building department’s imposition of the limit on boat length.

“Watercraft docked in the marina have historically been about 15 to 18 feet in length,” the ZBA ruling states. It added that Mr. Kelly neither presented evidence to the contrary nor showed that boats longer than 20 feet could be docked safely at the marina.

“Several neighbors submitted letters and photographs to the board and/or testified at the hearing objecting to the requested reversal,” the ZBA ruling continued.

Neighbors of the marina testified that Mr. Kelly’s “increase in the intensity of use” on the property since he purchased it in 2014 “has been problematic.”

“I am greatly concerned that the site plan submitted by Frank J. and Elizabeth G. Kelly would not only radically change the character of the neighborhood but also would result in a loss of my property value as well as values for neighboring properties,” neighbor James Carey said in a Nov. 30, 2015, letter submitted to the ZBA. “We have endured the illegal use of this property by Mr. Kelly for the past two years— usage that has included the overnight parking of live-aboard RVs (trailers) as well as individuals sleeping in tents on the property.”

In his lawsuit, Mr. Kelly says the “testimony from neighbors at the ZBA hearing was hearsay and conjecture and cannot form the basis for upholding the restriction.”

He said in an interview that recreational vehicles parked on his property belonged to visiting friends. There is nothing illegal about doing so under town law, he said, so long as no fee is charged.

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Photo: Frank Kelly’s marina in Laurel, which is the subject of a lawsuit he filed against the Southold Town Zoning Board of Appeals. (Credit: Tim Gannon)

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