13-7504ZONING Administrator
Barbara Roberti X 128
Zoning Board of Appeals
Secretary
Sue Rose X 122
TOWN OF WAPPINGER
ZONING
20 M[DDLEBUSH ROAD
WAPPINGERS FALLS, NY 1290
Phone 845-297-6256
Fax: 845-297-0579
E-Mail srose@townofwappinger.us
April 9, 2014
TOWN SUPERVISOR
Barbara Gutzler
TOWN BOARD
William Beale
Vincent Bettina
[smay Czarniecki
Michael Kuzicz
Zoning Board of Appeals
Howard Prayer, Chairman
Tom Della Corte
Al Casella
Robert Johnston
Peter Galotti
V ~ l='/ ~.
i
APR 4 9 2014
TOWN OF WAPPINGER
To: Joseph Paoloni TOWN CL_ ERK
Town Clerk
From: Sue Rose, Secretary
Town of Wappinger Zoning Board of Appeals
Re: Aaron Kellner & Krystal Campbell
Appeal No. 13-7504
Attached you will find the original Application/Decision & Order for Aaron
Kellner & Krystal Campbell, Easter Road Wappinger Falls, NY. Tax Grid
No. 6056-O1-259750, 6066-01-276713, 6056-01-259729 (Campbell) &
6056-01-294696, 6056-01-326668 (Kellner). I would appreciate it if you
would file these documents.
Attachments
cc: Aaron Kellner
Krystal Campbell
Town File
Building File
Jim Horan
Jon Adams
tS/L`J/ 1:5
0 (2290x3442)
_. _. , .._ t~,
'jp}~(N pF VYAPPINGER
P.O. 80X 324 - 20 M]DDLEBUSI-I ROAD
WAPPINGERS FAl..t_s: iVY 1 2590
Zoning Board of Appeals
Office: 845.297.1373 ~ Fax: 845.297.4558
Zoning Enforcement Officer
Office: 845,297.5257
www.townofwappinger. us
Qppiication for an Area Variance
Appeal # ~ ~ - ~ / L~
premises located at
Tax Grid. #
Zoning District
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gated: Angust 29, 2013
Tfl THE ZONING BOARD OF APPEALS, TOWN OF WAPPINGER, NEW YORK:
Aaron Kellner and
Rr stal Camvbell residing at 1 t 7 U m a rPr Rri 7002
I~,We)' 9 v f IhG'~ .-,H N "Y 12 - (phone), hereby appeal
L 1~1'~ tfC
to the Zoning Board of Appeals from the decfslon/action of the Zoning Administrator,
dated . 200,, and do hereby apply for an area variance(s).
Aaron i~ellner
Record OWper of~rop¢rtY ~ ~ ~
Address ~ i ~ a AJ (~/,~, L-
Phone Num er ~ ~ 8 27 13 Signature:
Owner Consent: Dated:. printed:
2. Variance(sj Request.
,~L +~~
Variance No. I
I(We) hereby apply to the Zoning Board of Appeals for a variances} of the following
requirements of the Zoning Code.
See attached.
(Indicace~r~ide~ Se~arr,~sabscctlorra -- ---- ---- ----- -
Required: See at
Applicant(s) can provide:
Thus requesting:
To allow:
TOV.'07218N-AAV (4A3 Rev) 1 of4
https:iimai i-attachment.g ooe I eus erconient.com'attachmenVu/0/?ui=2&i ti=099cd671f0&~ ew=att&th=140caf1 ecctf76467&atti d=0.1 &di sF~ i ni i ne8safe=18.zw&sadui e... 1!Z
I~ - Town of Wappinger Zoning Board of Appeals
Application for an Area,~ariance
Appeal No, ~. '~~7
Variance No. 2
I(We) hereby apply to the Zoning Board of Appeals for a variance(s) of the following
requirements of the Zoning Code.
(Indicate Article, Section, Subsection and Paragraph)
Required:
Applicant(s) can provide:
Thus requesting:
To allow:
3. Reason For Appea! (Please substantiate the request by answering the following questions in
j detail. Use extra sheeC, if necessary):
I
A. If your variance(s) is(are) granted, how will the character of the neighborhood or near y
properties change? Will any of those changes be negative? Please explain your answer in detail.
See attached.
B. Pease explain why you need the variance(s). Is there anyway to reach the same result
without a variance(s)? Please be specific in your answer.
C. How big is the change from the standards set out in the zoning law? Is the requested area
variance(s) substantial? If not, please explain, in detail,-why it is not substantial.
D. If your variance(s) is(are) granted, will the physical environmental conditions in the
~; neighborhood or district be impacted? Please explain, in detail, why or why not.
TOW022.ZBA-AAV (4-03 Rev) 2 of 4
Town of Wappinger Zoning Board of Appeals
Application for an Area Variance
Appea' No. 1~~C
E. How did your need for an area variance(s) come about? Is your difficulty self-created? Piease
explain your answer in detail.
r`. Is your property unique in the neighborhood that is needs this type of variance? Please explain
your answer in detail.
i 4. List of attachments (Check applicable inforrnai:ion}
(~ A o ,~,,.,,.,,,, , Last Revised and easement map
Surv_y Dat..d
Prepared by ChazPn 5,,,-~TP~=
Plot Plan Dated filed map 2332
(~ Photos
(X) Drawings Dated 5/1/2013 (~rad~n~ and .profile plan)
( ) Letter of Communication which resulted in application to the ZBA.
(e.g., recommenda~ion from the Planning Board/Zonin9 Debated:
Letter from Dated:
Letter from
5. Signature and Verification
Please be advised that no application can be deemed complete unless signed below.
The applicant hereby states that all information given is accurate as of the date of application.
,, . / , DATED : _Il_1~~-~-~--->
SIGNATURE v~-~--/
~ ( a J
~ ~ - DATED: ° rra~~
SIGNATURE
If more than ne ppellary~) C
~~ ~,=` ~
TON'022.ZC3f+-P.,A.V (~-G3 rccv) 3 of 4
Town of Wappinger Zoning Board of Appeals
Application for an Area Variance
Appeal No. IJ~ ~~'~~
FOR OFFICE USE ONLY
1, The requested variance(s) (X) WILL / ( )WILL NOT produce an undesirable change in the
character of the neighborhood.
(~ YES / ( ) NO, Substantial detriment will be created to nearby properties,
2. There (X) IS(ARE) / ( ) IS(ARE) NO other feasible methods available for you to pursue to
achieve the benefit you seek other than the requested variance(s).
3. The requested area variance(s) (~ IS(ARE) / ( ) IS(ARE) NOT substantial.
4. The proposed variance(s) (X) WILL / ( )WILL NOT have an adverse effect or impact on the
physical or environmental conditions in the neighborhood or district.
5. The alleged difficulty (~ IS / ( ) IS NOT self-created.
6. The property ( ) IS / (X) IS NOT unique to the neighborhood.
Conclusion: Therefore, it was determined the requested variance
Be ( )GRANTED (~ DENIED.
Conditions/Stipulations: The following conditions and/or stipulations were adopted by resolution
of the Board as part of the action stated above:
( )Findings & Facts Attached.
DATED: March 11. 2014 ZONING BOARD OF APPEALS
TOWN OF WAPPINGER, NEW RK
BY;
(Chairman) ~ p
PRINT; ~~ A~ `' "~~
TOW022.ZBA-AAV (4-03 Rev) 4 of4
Z03 386 6708 OEB E 25 2 @ SI KORSKY OEB E 25 2 @ SIKORSKY
Town of Wappinger
20 Midd{ebush Road
1Nappingers Fa-Is, NY f 2590
Planning Department
Offrce: 845.297.2373 ~ Fax: 845.297-0579
ww~.v.broberti~a townoFwappinger.us
07:40:41 p.m. 08-19-2013 1/1
Owner Consent Form
To be fi d w ,e the aoalicant is not the bui;dinq orgloperr<y ov~mer
Pro ect ~ ! ~
l ~~ s~ ~'~ Date: ,~ ~! -%
9 /~ '}
Grid Zoning Di riot: ~ ~'rJi (,,i
1 Location of project. ~~ ~~~ ~ ''~ ~' /J_ ~t ~~
Name of Applicant:
?rint name ands phhone numtser ~]
Descript[on of project: f~'U'~ 4 t/Q~~"e ~ ~~'~ ~ U `" ~~
('~4'~in Gam` '~..
owner of the above
land/site/building hereby give permission for the Town of Wappinger to approve or d y the above
appficati n in actor ante with local and state codes and ordinances.
~ - ~ .~
Date Owner' Signatu e
Owner`s Telephone No. Rrint Name Title ***
Owner'rUC2~" ll C (C C C~`1 a~UJ ~-
***If this is a Corporation or L!_£ please provide documentation`vf authority to sign.
if this is a subdivision application, please provide a copy of the deed.
rowo3~.-raac~n-o3 ~i~,~y i ~~•,
Town of Wappinger
20 Middlebush Road
Wappingers Falls, NY i 2590
~"
Planning Department
gfPice: 645.297.1373 N Fax: 845.297-0579
www.broberti~townoFNappfnger.us
• Owner Consent Form
To be filed when the apnlic nt !s not the buitdlno or aroperty owner
Project ~ 1~3 - 'i ,'~~ '~ Date: ~° ~ ' ~s ~ -~ ~
/ ""„''J-~'~_~ Zoning District: _ ~ °~~
Grid ~ u ~"~ , y ~ „-~
i_acatlon of project:
~"
,a'~ .~,
~~
Name of Applicant: / ~-- 7
Pr[nt name and phone number
Description of project: Cs"
~J =~
~-
~ ~ ~ y (~
owner of the above .
land/site/bu fding hereby give perrnisslon ~or the Town of ~lappinger to approve or deny the above
application in accordance with local and state codes and ordinances. r ~ Q
V~2~~~
Date ;3 Ow er Signature
,~ C~~
~ L (~ ~C (f,. ~
Owner's Telephone No. Print me and TI le ***
f--
Owner`s Address
~**~f this is a Corporation or LLG please pravide documentation of authority to sign.
If this is a subdivision application, please provide a copy of the deed.
TOW033.9D-OCF(7-03 Rev) 1 of I
i .
617.20
i APPENDIX C
~' PROJECT ID NUMBER
STATE ENVIRONMENTAL QUALITY REVIEW
'~ ~ L SHORT ENVIRONMENTAL ASSESSMENT FORM
for UNLISTED ACTIONS Only
PART 1 • PROJECT INFO ATION (To be completed by Applicant or Project Sponsor)
2. PROJECT NAME "~' y( ~~~
1_Ap (CANT! OR )~~ j~ y r
3.PROJECT LOCATION: J
~l County
Municipality
.~. PRECISE LOCATION: treet Addess and Road Intersections, Promin/e'nt landmarks etc or rovide map
~~/~ ~ /V
5. IS PROPOSED ACTION : (-yt~w ^ Expansion ^ Modification /alteration
E. DESCRIBE PROJECT BRIEFLY: 1,--~~u/
~. ~~ ~~ - ~
~~C~ S ~ ~ ~~.-~ ~
7. AMOUtyT OF ND AFFECTED: ~
'E ~~acres Ultimately i ~ acres
Initially
d. WILL RO~OSED ACTION COMPLY WITH IXISTING ZONING OR OTHER RESTRICTIONS?
Yes ^ No If no, describe briefly:
SEAR
. NJ ~ IS PRESENT LAND USE IN VICINITY OF PROJECT? (Choose as many as apply.) ^ Other describe)
Residential ^ Industrial ^Commercial ^Agriculture ^ Park/ Forest/ Open Space (
10. DOES ACTION INVOLVE A .PERMIT APPROVAL, OR FUNDING, NOW OR ULTIMATELY FROM ANY OTHER GOVERNMENTAL
AGENCY (F der ," State or Local}
^Yes No If yes, list agency name and permit 1 approval:
11. DOES ANY ASPECT OF THE ACTION HAVE A CURRENTLY VALID PERMIT OR APPROVAL?
^Yes ^No If yes, list agency name and permit !approval:
12. AS A RESULT OF PROPOSED ACTIO IL1 EXISTING PERMIT/ APPROVAL REQUIRE MODIFICATION?
^Yes ^ No
~ I CERTI THAT E INFORMATION PROVIDED ABOVE IS TRUE TO THE BEST OF IvTY KNOWLEDG ~
I, ~~
Dater
Applicant / Spons Name `
Signature ~~ CC
tf the ac 'on 's osta( Ar ,and u ar state age , y,
essment rm b ore roceeding w th is ~sessment
co fete the C a A ~ ~~
i ~~~
~ ~ l~,
~ECEtv~o
p~1NNING DEPARTPAENT
TOWN OF WAPPINGER
Kellner/Campbell variance
Affected Parcels
6056-O1-259750 \
6066-01-276713 /
6056-01-259729
6056-01-294696
6056-01-326668
~~-~ ~~
Q ~ ~, '~,~tQ~-~n .~~.
Variance Application Zoning Law Section § 240-20(A) and
Town Law § 280-a
PREFACE
Applicants own three lots as shown on filed map 2332 on the eastern end of
what purports to be a strip of land that town's tax map shows as "Easter
Road." However, an examination of the deed records of the Dutchess
County Clerk reveals that no road nor easement to River Road exists for the
benefit of the applicant for several reasons.
First the filed map has no provision for the road extending the full length of
the subdivision as shown on filed map 2332. At best, the area designated for
Easter Road extends only along lots 1 through 4, then owned by Hudson
Shannon Corp. A boundary line extends across the purported road, and the
subsequent similar areas have owner names correlating to adjacent lots with
no indication of an intent that the same be included as part of the purported
"Easter Road."
Second, an examination of deeds for the lots 1 through 4 at the western end
where the purported road intersects River Road (formerly Chelsea Road)
which were owned by Hudson Shannon Corp. contains no reservation of an
easement for the benefit of the owners of lots at the eastern end of the
subdivision. Hudson Shannon conveyed its lots to Edward and Georgia
Thompson by deed dated October 20th, 1951. That deed reserved the right of
Gavin (owner of lots 5 and 6) to travel over the right of way (not described
on map 2332) but contained no similar reservation for other lot owners (i.e.,
lots 7, 8 and 9). Subsequent deeds by the Thompsons to their grantees
merely had the statement that the conveyances were subject to the rights of
others on Easter Road as shown on map 2332, which as previously noted,
shows no rights reserved for all owners purportedly fronting the same.
Copies of the filed map and referenced deeds are attached.
The purported Easter Road as shown on the town's tax map extends from its
west terminus at the intersection of River Road easterly to the three lots
owned by the applicants. Other residents exist on Easter Road; however,
none of the improved lots on Easter Road use Easter Road for access to
River Road. The road, presumably still owned by Hudson Shannon Corp., is
not passable between lots 1 & 2 because of a dilapidated bridge which
applicants have determined is cost prohibitive to replace for three lots. It is
believed the original 12 inch culvert was destroyed during or after 1969
following the approval of the Chelsea Ridge apartments, as drainage flows
in this area were substantially altered and increased as a result of drainage
from that project. This area of the purported road has not been used as an
access road to River Road since that time.
Four existing homes on Easter Road have developed alternative means of
access absent access from River Road, by using Circle Drive and passing
over a privately owned lot. The Toth parcel (20 Easter Road), the Burns'
parcel (30 Easter Road), the Herrah parcel (36 Easter Road) and the
Leggerio parcel (40 Easter Road) all access their homes over Easter Road
through a vacant lot owned by Herrah (see annexed map). Similarly, a lot
owned by Campbell uses a separately owned and improved lot owned by
them on Circle Drive.
During this time, at least four homes have been constructed, replaced or
improved on Easter Road using the alternative means of access outlined
above.
Applicants propose by this variance to obtain the same means of access as
has been historically used by other lots shown on filed map 2332 for access
to Easter Road for the past 27 years, i.e., by access through a lot having
frontage on Circle Drive. ~
Variance Request
Applicants propose to access their three lots over an easement which has
been created over the 1.48 acre Campbell lot at 16 Circle Drive (see annexed
map) over what in substance would be a common driveway. This lot is
substantially larger than surrounding lots and has ample room to
accommodate in addition to flood abatement basins benefitting the residents
below, at the western end of that lot, an access road that provides access to
Easter Road in the same manner as the four lots to the west obtain access to
Circle Drive over the extension of the Leggerio lot.
~ Prior to the destruction of the culvert, all the lots shown on filed map 2332 used the area
characterized as Easter Road and presumably obtained prescriptive rights for the same. Hovv~ever,
those rights were abandoned by use of Circle Drive.
Section 240 -20, while applicable to new subdivisions created after the
enactment of the current zoning law, offers a standard for approval under
Town Law §280-a as the town zoning law permits common driveways
under standard prescribed in that section. Applicants propose the equivalent
common driveway for their three lots, using the standards of section 240-20.
That section lists 8 factors to be considered
1. Each of the affected three lots must be capable of independent access
over its own frontage. Each lot has independent frontage in excess of
50 feet, the minimum required in this zoning district.
2. Each of the lots shall be governed a common driveway easement,
construction plan and maintenance agreement2. A recorded agreement
exists for the easement, construction and maintenance (see attached).
3. The plat must contain a notation of the required agreement. As the
plat was filed in 1951, this approval process would not be applicable,
although the Zoning Board would possess equivalent approval review.
4. Inapplicable as this subsection assumes an application for a new
subdivision.
5. Not more than 3 lots can be served by a single common driveway.
This application applies to three lots. Lot 259750 has direct access to
Circle Drive and is not counted as a lot using the common driveway
6. The common driveway must meet specified construction standards for
common driveways as shown on an appendix to that section.
Applicants' aggress to meet such standards (see accompanying
engineer's profile).
7. A declaration of covenants and restrictions are to be filed in the
Dutchess County Clerk's office. Applicant consents to such filing in a
form acceptable to the board.
8. Applicants agree to any reasonable modification of the maintenance
agreement previously filed as may be recommend as provided in this
subsection 8 of section 240-20.
The construction of the common driveway in accordance with the town
specification for common driveways will create a roadway that is
passable for emergency vehicles.
Z Section 240-20 states this plan must be approved by the planning board. That approval
mechanism is in applicable to this application as the subdivision creating Easter Road predated
planning board approval.
Page 1 of 1
http://geoaccess.co.dutchess.ny.us/parcelaccess/default.htm 8/13/2012
TOWN OF WAPPINGER
ZONING BOARD OF APPEALS
APPLICATION FOR VARIANCE
FINDINGS & DECISION
Appeal No.
Application Date:
Applicant
Premises Located at:
Tax Grid No.:
Zoning District(s):
Record Owners of Properties:
Variance of Code Sections:
13-7504
August 29, 2013
Aaron Kellner & Krystal Campell
Lots on Easter Road
6056-01-294696 (76 Easter Road)
6056-01-326668 (80 Easter Road)
6056-01-259729 (54 Easter Road)
6056-01-276713 (62 Easter Road) and
6056-01-259750 (14 Circle Drive)
R-20 and R-40/80
Aaron Kellner and
Peter and Krystal Campell
NY Town Law § 280a &
Zoning Code § 240-20
Description of the Premises & Proposed Variance
Applicant Aaron Kellner owns two lots designated as tax parcels 6056-O1-294696 (76
Easter Road) and 6056-01-326668 (80 Easter Road). Applicants Peter and Krystal Campbell
own two lots located on Easter Road: 6056-01-259729 (54 Easter Road) and 6056-01-276713
(62 Easter Road). Peter & Krystal Campbell also own a 1.48 acre lot designated as tax parcel
6056-01-259750 having an address of 14 Circle Drive.
Lot 294696 (76 Easter Road) is improved with a structure. A single family house was
constructed on Lot 326668 (80 Easter Road) in 1954, according to a letter from Kellner to the
Town. Prior to 1960, the Town of Wappinger did not require building permits for the
construction of structures. The house on Lot 326668 owned by Kellner was destroyed by fire on
June 29, 2004. The Town Fire Inspector and Code Enforcement Officer declared the fire
damaged building unsafe and it was removed.
In August of 2006, Kellner met with officials of the building department to discuss
rebuilding the house at 80 Easter Road. At that time Mr. Kellner was told that the bridge on
Easter Road was unsafe and needed to be repaired. He was also informed that in addition to
repairing the bridge, Easter Road had to be improved in certain areas to insure access for
emergency vehicles and no building permit would be issued unless and until the improvements to
Easter Road were made.
In 2011, Kellner approached the Town of Wappinger with a proposal to gain access to 80
Easter Road by a right of way over the property of Campbell at 14 Circle Drive (Lot 259750).
Under this proposal, the bridge on Easter Road would not be repaired. The Town advised Kellner
that a variance pursuant to Town Law §280-a and Town of Wappinger Zoning Code § 240-20
was required in order to obtain a building permit since access to 80 Easter Road was no longer
from a street shown on a filed map but rather by a driveway out to Circle Drive.
On January 29, 2013, Aaron Kellner applied for a building permit for a structure on Lot
326668 (80 Easter Drive). By letter dated February 20, 2013, Engineer to the Town, Robert
Gray, P.E. rejected the building permit. Aaron Kellner appeals the denial of that letter.
The letter from the Engineer to the Town provided two separate paths to obtain a building
permit. The first path was to obtain authorization under NY Town Law 280-a and Town of
Wappinger Code § 240-20 to allow access by means of a driveway over the Campbell Property.
The Engineer to the Town noted that "the entire driveway from Circle Drive to the Kellner
property will be paved since a significant portion of the access is greater than 6% grade." Under
this path a new driveway would be created that would be required to comply with existing Town
Code provisions for driveways.
The second path outlined by the Engineer to the Town was to replace the existing stream
crossing on Easter Road. The Engineer to the Town noted that on Easter Road the "existing
bridge is in a state of disrepair and should be restored or replaced with an adequately sized
culvert. The culvert could be installed at the same size as the existing culvert downstream at
River Road. Prior to approval of this installation, any NYSDEC approvals would be required or
proof that the stream is not in a classification that requires NYSDEC permitting."
The Applicants Aaron Kellner and Peter and Krystal Campbell seek a variance from the
strict provisions of NY Town Law 280-a and Town of Wappinger Code § 240-20. The variances
are required because the Applicants seek to gain access to the lots on Easter Road over a
driveway to Circle Drive that is not a public highway and is not shown on a map filed in the
Office of the County Clerk.
Findings of Facts
Easter Road
Easter Road is shown on a subdivision map entitled "Property Subdivision of Dominick
J. Gavin, Old Chelsea Road, Town of Wappinger, Dutchess County" dated July 30, 1948 filed in
the office of the Dutchess County Clerk as map number 2259 on May 1, 1950. Filed Map 2259
shows 6 lots. FM 2259 and Easter Road is referred to in a deed from Dominick J. Gavin and
Frances Davis Gavin to Hudson-Shannon Corporation dated April 29, 1950 which transferred
Lots 1-4 on FM 2259 to Hudson-Shannon Corporation. The April 29, 1950 deed reserved to the
Gavins a right of way over the 50 foot wide private road (known as Easter Road).
2
On July 31, 1951, a second subdivision map entitled "Property of Hudson-Shannon Corp.
and D.J. Gavin & Others, Old Chelsea Road, Town of Wappinger, Dutchess County" dated July
2, 1951 was filed in the office of the Dutchess County Clerk on July 31, 1951 as Filed Map 2332.
FM 2332 showed 9 lots. Lots 1-4 retained the same configuration as shown on FM 2259 and are
shown to be owned by Hudson-Shannon Corp.
Lot 8 on FM 2332 shows its owner to be W. Wilson and is now Lot 294696 (76 Easter
Road) and is also owned by Kellner. William Wilson received title to the premises from
Dominick J. Gavin and Frances Davis Gavin in 1950. The conveyance into Wilson included a
right of way in common with others along the northerly line of lands of Gavin and Hudson-
Shannon Corporation from the Old Chelsea Road. The deed from Gavin to Wilson reserved to
the grantors (Gavin) a right of way over a strip of land 50 feet wide along the northeasterly line
of the lands conveyed and the power to dedicate said land as a public highway and to grant
easements for public utilities. Thus a 50 foot right of way over Lots 1-8 out to Old Chelsea Road
was created. Aaron Kellner received title to Lot 294696 (76 Easter Road) by deed from Bertha
Kellner dated August 20, 1986 which was recorded in the office of the Dutchess County Clerk at
Liber of Deeds 1720 page 752.
Lot 9 on FM 2332 shows its owner to be P. Kellner and is now Lot 326668 (80 Easter
Road) and is presently owned by Kellner. Aaron Keller is the owner of Lot 326668 (80 Easter
Road) by virtue of a deed from Bertha Kellner dated August 20, 1986 which was recorded in the
office of the Dutchess County Clerk at Liber of Deeds 1720 page 754. The deed for Lot 9
includes the grant of "a right of way in common with others along the Northeasterly line of lands
of Gavin and Hudson-Shannon Corporation to and from the Old Chelsea Road aforesaid."
The Applicant argued that there was no reservation of a right of way for lots 7, 8 and 9 in
the deeds from Hudson-Shannon Corporation, however the reservation of the right of way was
made by Gavin prior to the transfer into Hudson-Shannon Corporation. Subsequent deeds from
Gavin transferred the right of way to Wilson and thence to the current owner Kellner.
The deed from Gavin to Wilson provides a legal right of way for all lots on Easter Road,
including lots 7, 8 and 9, over a 50 foot right of way out to Old Chelsea Road (now River Road).
This deed also gives the successors to Gavin the right to dedicate Easter Road as a public road.
The attorney to the ZBA caused a search of the Town Clerk's records to be made and
there is no offer to dedicate Easter Road to the Town as a public road.
3
Current Owners on Easter Road
TLl. r 11 ,...,:«.. ;~ ., 1;04 ~~*ha nwnare of tha into nn Fanter Rnad'
,b ~ _ _ ___ _ _ -
Properties on Easter Road
Record Owner Tax Parcel ID Address Lot Area FM 2332 Reference
1 Stache/Enrico 6056-01-169808 6 Easter Road 3.4 acres Lot 1
2 Toth 6056-01-197783 20 EasterRoad 1.04 acres Lot 2&p/o 3
3 Bums 6056-01-216765 30 Easter Road 1 acre Lot 4 & p/o 3
4 Hernandez 6056-01-230755 36 Easter Road 0.50 acre Lot 5
5 Leggiero 6056-01-239747 40 Easter Road 0.56 acre p/o Lot 6 + Circle Drive
6 Subrize 6056-01-248739 Easter Road 0.49 acre p/o Lot 6
7 Campbell 6056-01-259729 54 Easter Road 0.7 acre p/o Lot 6
8 Campbell 6056-01-276713 62 Easter Road 1 acre Lot 7
9 Kellner 6056-01-294696 76 Easter Road 1 acre Lot 8
10 Kellner 6056-01-326668 80 Easter Road 3.5 acres Lot 9
Lot 169808 has approximately 300 feet of frontage on River Road. Lot 239747 has 35
feet of frontage on Circle Drive. All of the other lots derive their legal access from Easter Road.
Lot 6056-01-239747 (40 Easter Road)
During the proceedings it was noted that access to Easter Road was obtained across Lot
239747 with an address of 40 Easter Road. The property is now owned by Noreen Leggiero by
virtue of a deed from James F. Bosch, III dated December 22, 2005 and recorded in the office of
the Dutchess County Clerk on December 22, 2005 at Document No. 02-2005-11493. The
current configuration of Lot 6056-01-239747 was created on July 30, 1995 when former lot
6056-01-243764 which was 0.18 acres in size having an address of 12 Circle Drive was merged
into prior Lot 6056-01-239747 which was 0.38 acres and Lot 243764 was deleted. The two
former lots met at a single point, they did not share a boundary line.
According to the records of the Town Assessor, Lot 6056-01-243764 (12 Circle Drive)
was created by a deed from Arthur Joseph Gadapee and Marjorie Elizabeth Gadapee to Albert
Martinet and Carmen Q. Martinent dated February 18, 1961 which was recorded in Deed Book
1051, Page 104 in the office of the Dutchess County Clerk. The 12 Circle Drive lot was
trapezoidal in shape having dimensions of: 67 feet along Easter Road, 154 feet perpendicular to
Easter Road out to Circle Drive, 35 feet along Circle Drive and thence 157.4 feet at an angle
back to Easter Road. The Martinets were owners of a lot on Easter Road at the time they
acquired the 12 Circle Drive parcel.
Lot 239747 is burdened by a right of way to use the driveway that is recorded in a deed
from Rudolph and Hilda Schneider to Carmen Q. Martinet dated January 30, 1980 recorded at
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Liber 1529 Page 148. The Schneiders were predecessors in title for 14 Circle Drive (Lot
259750) which is now owned by Campbell.
A deed from Carmen Q. Martinet to Lucy Martinet dated July 15, 1977 and recorded at
Liber of deeds 1466 at page 118 grants the owner of Lot 230755 (36 Easter Road) the "right to
cross over the parcel of land on the northerly side of Easter Road acquired by said Albert and
Carmen Q. Martinet by deed recorded in Book 1051 Deeds, page 104 for access to Circle Drive."
No other deeds have been presented granting the rights of others to cross Lot 6056-01-
239747 (40 Easter Road). The parcel of land recorded in Book 1051 Deeds, page 104 for access
to Circle Drive was never offered as a public or private road. A deed into the current owner of
Lot 239747, Noreen Leggiero, from James F. Bosch III recorded at Document No. 02-2005-
11493 notes that it is subject to an easement of others but there is no record of other easements
than the two noted at Liber of deeds 1466m Page 118 and Liber 1529 Page 148.
The applicants have contended that they are entitled to a building permit by virtue of the
fact that there is a right of way over Lot 239747 but that is not the case. As this is not a road,
only the owner of the Lot 239747 can use the access to obtain a building permit. Even the owner
of Lot 230755 (36 Easter Road) may not obtain a building permit as there is no frontage on a
Town Road; the deeded right of way is not sufficient. Even if the Applicants could establish that
they have a prescriptive right to cross over Lot 239747, such access does not establish the right
to a building permit under Town Law § 280-a or Town Code § 240-20 as they no longer have
suitably improved access over a road on a plat as Easter Road is not suitably improved.
Public Hearing
A public hearing on the application was held on January 28, 2014 and continued on
February 11, 2014, February 25, 2014 and March 11, 2014. Aaron Kellner, Alex Kellner, Peter
Campbell, Krystal Campbell, and their attorney Jon Adams, Esq. spoke in support of the
variance.
Town of Wappinger Superintendent of Highways Graham Foster testified that he
believed the variance should be denied and that the bridge on Easter Road should be replaced by
a culvert as outlined by the Engineer to the Town. Superintendent Foster noted that the Campbell
Lot on Circle Drive only has 20 feet of frontage on Circle Drive while the Town Code requires
50 foot.
Clara Toth, the owner of 20 Easter Road spoke at the public hearing. She testified that
she is 9 years old. She stated that the para-transit bus provided by Dutchess County "Dial a
Ride" which would take her to doctors' appointments and shopping will not pick her up at her
home because Easter Road is in such poor condition. She is force to pay for taxicab service
which is costly for her. Ms. Toth testified that she would be willing to contribute to the
maintenance of Easter Road and had done so in the past.
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Review of Town Law 280-a Variance
Pursuant to NY Town Law § 280-a(3) a variance to permit a structure on a lot that does
not abut a public highway that is suitably improved is to be reviewed by the ZBA in accordance
with the standards for an area variance. In determining whether to grant an area variance, a
zoning board must consider "the benefit to the applicant if the variance is granted, as weighed
against the detriment to the health, safety and welfare of the neighborhood or community by such
grant" (Town Law § 267-b [3][b]). The zoning board should also consider:
(1) whether an undesirable change will be produced in the character of the neighborhood
or a detriment to nearby properties will be created by the granting of the area variance;
(2) whether the benefit sought by the applicant can be achieved by some method, feasible
for the applicant to pursue, other than an area variance;
(3) whether the requested area variance is substantial;
(4) whether the proposed variance will have an adverse effect or impact on the physical
or environmental conditions in the neighborhood or district; and
(5) whether the alleged difficulty was self-created, which consideration shall be relevant
to the decision of the board of appeals, but shall not necessarily preclude the granting of the area
variance.
Pursuant to NY Town Law § 280-a(3), the ZBA "may in passing on such appeal make
any reasonable exception and issue the permit subject to conditions that will protect any future
street or highway layout."
In addition to the variance under Town Law §280-a the applicant requires a variance
from Town of Wappinger Zoning Code provision § 240-20(A) which requires 50 feet of frontage
on a road improved to Town highway specifications. The two variances should be reviewed
under the same standard.
The ZBA determines that the evidence presented result in the following determinations
regarding the above noted factors:
Easter Road Not Suitably Improved
The Zoning Board of Appeals has visited Easter Road and reviewed the documents
submitted regarding its condition. The Zoning Board of Appeals determines that the Engineer to
the Town is correct when he states that the bridge on Easter Road is in disrepair and is in need of
replacement. In addition to the dilapidated bridge, portions of Easter Road to the east of the
Subrize property, Lot 248739 are also not suitably improved.
The fact that the bridge is not suitable is corroborated by the testimony of Clara Toth who
lives at 20 Easter Drive who stated at the public hearing that she fears traveling on the road and
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that Dutchess County paratransit will not pick her up at her house, she has to take a cab. There is
also an email sent by the Chelsea Fire District stating that the grade of the road is steep and it has
question as to the load carrying capacity of the existing bridge. The Applicants note in their
application that the bridge was damaged following the approval of the Chelsea Ridge
Apartments.
The Applicants have submitted that a building permit must be issued because Easter
Road is "grandfathered" and that there was a structure previously on the lot which burned down.
Town Law 280-a requires that the street or road must be suitably improved at the time of the
issuance of the building permit. There is no grandfathering of a substandard road because there
are structures on it.
Standard for Easter Road Improvement under Town Code 240-20
Town of Wappinger Code §240-20 provides:
No building permit shall be issued for the establishment of any use or
construction of any structure unless the street or hi~hway giving access to said
use or structure has been suitably improved to Town road standards or a
bond posted therefor, in accordance with the provisions of § 280-a, Subdivisions 1
and 2, of the Town Law.
It should be noted that Easter Road is a private road and is obviously not improved to
Town road standards. See Town Code Chapter 214, Article V. The Engineer to the Town has
determined under the circumstances, improving Easter Road to the lesser driveway standards
where improvement is needed is satisfactory for emergency vehicle access. In light of the
history of drainage and erosion issues along Easter Road, suitable drainage must be provided.
The Applicants have not requested any variance with respect to improving Easter Road.
Change in Character of the Neighborhood
Granting of the variance would mean that the lower portion of Easter Road will
essentially be abandoned since the bridge would not be repaired. Such abandonment would
result in a change in the neighborhood. Abandonment of the bridge on Easter Road would most
affect 20 and 30 Easter Road which are the lots closest to the bridge.
The Applicant has argued that traffic to and from Easter Road currently traverses Lot
6056-01-239747 (Leggiero) out to Circle Drive and that no additional traffic is being added to
Circle Drive. At present, all five lots to the east of Leggiero are vacant: the four lots owned by
Campbell and Kellner and the lot owned by Subrize. Issuing building permits to construct or
alter residences on these lots would necessarily increase traffic onto Circle Drive.
If the variance is granted and the bridge is closed, all access to the structures on Easter
Road will be rerouted to two driveways on Circle Drive; one on the Leggiero property and the
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other on the Campbell property. These two driveways are quite close to each other and enter
Circle Drive on a curve. These two driveways exist presently, but neither has a driveway permit
issued by the Town as the driveways were created prior to 1970. The Leggiero lot has 35 feet of
frontage on Circle Drive and the Campbell lot has only 20 feet of frontage on Circle Drive. The
Town Highway Superintendent testified that he was opposed to creating additional traffic over
the existing Campbell Driveway which cannot comply with the common driveway
specifications.
Granting the variance will produce an undesirable change in the neighborhood.
Can Benefit Sought Be Obtained By Other Feasible Means
The Applicants have taken the position that it is not feasible for them to replace the
bridge on Easter Road that crosses an unnamed stream just east of River Road. The Applicants
provided a document entitled "The Story of the Easter Road Bridge Replacement Effort" dated
February 11, 2014 by Aaron Kellner. At page 3 of the document under the heading "Hydrology
& Culvert" there is a discussion of construction estimates that range from $29,000 to $95,000.
By letter dated February 11, 2014, Engineer to the Town Robert Gray, P.E. provided his
estimate that the cost of replacing the unsafe bridge with two 54" diameter High Density
Polyethylene culverts at 20 feet in length would be $35,000. This estimate falls within the range
obtained by the Applicant.
Based on the estimate of the Engineer to the Town, the cost of repair the bridge is
feasible in light of the fact that the cost of improving the private road maybe apportioned among
the lots that benefit from the bridge, that is nine lots on Easter Road excluding 6 Easter Road
which does not obtain access over the bridge. A cost of $35,000 divided proportionally among
nine lots would be $3,888.89 per lot. At the public hearing, Clara Toth the owner of 20 Easter
Road stated that she would contribute to the repair of the bridge. Kellner and Campbell own four
of the nine lots benefitted by the bridge.
Replacing the bridge with two culverts as suggested by the Town Engineer is a feasible
method which can be pursued without the need for a variance. The Applicants own four ninths
of the lots to the east of the bridge. These four lot owners may seek contribution from the
remaining lot owners on Easter Road. At common law, property owners along a private road are
required to share ratably in the costs of maintaining the road/and or bridge and would be liable to
any person injured for failing to maintain the road and/or bridge. By repairing the bridge, the
liability against the property owners along Easter road is reduced.
The applicant has another means to achieve the benefit without the need for a variance.
Substantial Nature of the Variance
The Applicants are essentially requesting that Easter Road be abandoned and a new
private road be created. This variance is substantial in nature.
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The variance proposes that a fifty foot wide private road right of way be replaced with a
twelve foot wide driveway. The Applicants propose to use the existing driveway on Campbell
Lot 259750 to access three lots on Easter Road. The Applicant proposed to meet common
driveway standards by making an 18 foot wide driveway but that does not seem to be possible.
The driveway entrance onto Circle Drive shown on the Grading Plan for Easter Road and Access
Easement prepared by Paggi, Marin & Del Bene, LLP dated 5/1/2013 is 12 feet in width and
takes up the entire 20 foot road frontage of the Campbell parcel because it is not perpendicular to
the road frontage.
To comply with the requirements for common driveways in the Town of Wappinger
Zoning Code, the Applicant proposes to restrict the number of building permits that can be
issued off the common driveway to three lots, even though there are five lots on the easterly
portion of Easter Road. It is unlikely that this restriction can be equitably enforced without
requiring the merger of existing lots.
Eliminating a 50 foot private road in favor of a 12 foot driveway is a substantial variance.
The Applicants are asking the Zoning Board of Appeals to grant a variance that does not
affect just one lot. The variance is substantial because the Applicant is in essence asking the
Zoning Board of Appeals to create an open development area within the Town of Wappinger,
rather than asking for a variance for a single lot. The authority to grant an open development
area lies with the Town Board pursuant to Town Law § 280-a(4) and not the Zoning Board of
Appeals. Granting a variance for more than one lot is a substantial variance.
Adverse effect on the physical or environmental conditions in the
neighborhood
As noted above, granting of the variance is tantamount to abandonment of the bridge on
Easter Road which have an adverse effect on at least two of the lots on Easter Road nearest the
bridge. The time for emergency vehicles to respond to the these properties would be increased
because they would have to travel up Lake Drive to Circle Drive, then along Circle Drive to the
Campbell driveway and then back down Easter Road, rather than just across the bridge on Easter
Road. It is further submitted that it would be easy for emergency response vehicles that were
unfamiliar with the street layout to navigate the circuitous route.
Furthermore, granting the variance would alter the relationship among the Easter Road
lot owners for the maintenance of Easter Road. Granting the variance would cause hardship to
the residents at 20 and 30 Easter Road as those two lot owners would now bear the cost of
repairing the bridge as there is no incentive for the other lot owners to do so.
Hardship Self-Created
Since an earlier structure owned by Kellner was destroyed by fire, the hardship on that lot
was not self-created. With respect to the two lots owned by the Campbells on Easter Road, that
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difficulty was self-created as they purchased the lots knowing of the substandard condition of
Easter Road.
Decision
Applying the standards of Town Law §267-b(3)(b), an area variance cannot be granted
because the requested variance will alter the essential character of the neighborhood, the variance
can be achieved by other feasible means, the variance is substantial, there will be an adverse
effect on the physical conditions in the neighborhood and the alleged hardship has been partially
self created.
VOTE
Application for Variance DENIED.
Denial of the permit by the Engineer to the Town dated February 20, 2013 is sustained.
The foregoing is the decision of the ZBA.
Evidence Presented
1) Application of Kellner & Campbell dated August 29, 2013;
2) Variance Application Supplement revised 11/26/2013
3) Grading Plan for Easter Road and Access Easement prepared by Paggi, Marin & Del
Bene, LLP dated 5/1/2013
4) "The Story of the Easter Road Bridge Replacement Effort" dated February 11, 2014 by
Aaron Kellner.
5) Letter of Jon Holden Adams re Prescriptive Rights dated March 11, 2014
6) Subdivision map entitled "Property Subdivision of Dominick J. Gavin, Old Chelsea
Road, Town of Wappinger, Dutchess County" dated July 30, 1948 filed in the office of
the Dutchess County Clerk as map number 2259 on May 1, 1950.
7) Subdivision map entitled "Property ofHudson-Shannon Corp. and D.J. Gavin & Others,
Old Chelsea Road, Town of Wappinger, Dutchess County" dated July 2, 1951 filed in the
office of the Dutchess County Clerk on July 31, 1951 as Filed Map 2332.
8) Deed from Dominick J. Gavin and Frances Davis Gavin to Hudson-Shannon Corporation
dated Apri129, 1950.
9) Deed from Dominick J. Gavin and Frances Davis Gavin to William Wilson dated 1950.
10) Deed from Bertha Kellner to Aaron Kellner dated August 20, 1986 which was recorded
in the office of the Dutchess County Clerk at Liber of Deeds 1720 page 754.
11) Deed from Arthur Joseph Gadapee and Marjorie Elizabeth Gadapee to Albert Martinet
and Carmen Q. Martinent dated February 18, 1961 which was recorded in Deed Book
1051, Page 104 in the office of the Dutchess County Clerk.
12) Deed from Rudolph and Hilda Schneider to Carmen Q. Martinet dated January 30, 1980
recorded at Liber 1529 Page 148.
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13) Deed from James F. Bosch, III to Noreen Leggeiro dated December 22, 2005 and
recorded in the office of the Dutchess County Clerk on December 22, 2005 at Document
No. 02-2005-11493.
14) Deed from Carmen Q. Martinet to Lucy Martinet dated July 15, 1977 and recorded at
Liber of deeds 1466 at page 118.
15) Letter from Town of Wappinger Assessor Thomas E. Logan to Dutchess County Real
Property Services dated July 29, 1995 re combining lots.
16) Memo from Town of Wappinger Assessor to Thomas E. Logan dated July 30, 1995 re
combining lots.
17) Timeline prepared by Barbara Roberti.
Dated:March 11, 2014
Zoning Board of Appeals
Town of Wappinger, New York
Howard Prager, Chairman
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