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1990-11-27rd's L TOWN OF WAPPINGER NOVEMBER 27, 1990 PROPOSED AGENDA - PUBLIC HEARING ZONING BOARD OF APPEALS 7:30 PM m TOWN HALL 20 MIDDLEBUSH ROAD WAPPINGER FALLS, N.Y. APPEAL # 1097 THE ZONING BOARD OF APPEALS WILL HOLD A PUBLIC HEARING AT THE REQUEST OF THE ALPINE COMPANY OF POUGHKEEPSIE, SEEKING A VARIANCE OF ARTICLE IV SECTION 470 OF THE TOWN OF WAPPINGER ZONING ORDINANCE, TO ALLOW ONE (1) PARKING SPACE PER 200 GROSS SQUARE FEET, WHERE THE ORDINANCE REQUIRES ONE (1) SPOT PER 150 GROSS SQUARE FEET ON PROPERTY LOCATED AT ROUTE 9 BETWEEN MYERS CORNERS ROAD AND OLD HOPEWELL ROAD- EAST SIDE OF ROAD AND BEING PARCEL # 6157-02-707773 IN THE TOWN OF WAPPINGER. e 4e ...c'` APPEAL # 1058 RICHARD FAY - REQUEST FOR REHEARING -PER LETTER DATED 10-01-90 FROM KENNETH M. STENGER ESQ. SIGNED: MICHAEL HIRKALA- CHAIRMAN ZONING BOARD OF APPEALS r� Q�Pp�O�C�D DEC 1 & 90 m-- lc eo OFWN �K PUNNING wm ❑ TOWN OF WAPPINGER ZONING BOARD TOWN HALL NOVEMBER 27, 1990 20 MIDDLEBUSH ROAD MINUTES - 7:30 PM WAPPINGER FALLS, N.Y. THE REGULAR MEETING OF THE TOWN OF WAPPINGER ZONING BOARD OF APPEALS WAS HELD ON NOVEMBER 27, 1990 AT THE TOWN HALL, 20 MIDDLEBUSH ROAD, WAPPINGER FALLS, N.Y. BEGINNING AT 7:30 P.M. ROLL CALL _ MR. HIRKALA - CHAIRMAN MR. TOMPKINS ❑ OM 9NINNOd MR. LEHIGH 13 S11f3ddYl0 am 9NINOZ MRS. ROE MR. BROOKER -ilk ET OTHERS PRESENT GAY ANN HARDISTY - SECRETARY D • Q rwP MR. LEVENSON - ZONING ADMINISTRATOR / CLERK TO ZBA MEETING WAS CALLED TO ORDER AT 7:30 PM ADMINISTRATIVE ITEM MR. LEVENSON: MR. CHAIRMAN DUE TO THE FACT THAT THE MONTH OF DECEMBER IS A SHORT MONTH, I BELIEVE YOU SHOULD DISCUSS AT THIS TIME THE SETTING OF ONE MEETING. WE HAVE ONE CASE WHICH IS A SPECIAL USE PERMIT WHICH WILL BE PENDING FOR THE BOARD. EXCUSE ME TWO CASES, TWO SPECIAL USE PERMITS , THAT WILL BE PENDING BEFORE THE BOARD. ONE IS FOR A HOME OCCUPATION AND ONE IS FOR AN ACCESSORY APARTMENT. I WOULD RECOMMEND THAT IF THE BOARD SO CHOOSES THAT WE DESIGNATE DECEMBER 18, AS THE ONE MEETING. MR. LEHIGH: SECONDED VOTE: MR. HIRKALA: AYE MR. BROOKER: AYE MR. TOMPKINS: AYE MR. LEHIGH: AYE MRS. ROE: AYE MOTION CARRIED. MR. HIRKALA: FIRST ITEM ON THE AGENDA IS A PUBLIC HEARING. APPEAL # 1097 THE ZONING BOARD OF APPEALS WILL HOLD A PUBLIC HEARING AT THE REQUEST OF THE ALPINE COMPANY OF POUGHKEEPSIE, SEEXING A VARIANCE OF ARTICLE IV SECTION 470 OF THE TOWN OF WAPPINGER'ZONING ORDINANCE, TO ALLOW ONE (1) PARKING SPACE PER 200 GROSS SQUARE FEET, WHERE THE ORDINANCE REQUIRES ONE (1) SPOT PER 150 GROSS SQUARE FEET, ON PROPERTY LOCATED AT ROUTE 9 BETWEEN MYERS CORNERS ROAD AND OLD HOPEWELL ROAD EAST SIDE OF ROAD AND BEING PARCEL # 6157-02-707773 IN THE TOWN OF WAPPINGER. LET'S HEAR FROM THE APPLICANT. m (2) m MR. RICHARDS: MY NAME IS TYDE RICHARDS AND THIS HERE IS HEINZ WIESER FROM PARKERS DALE COMPANIES. MR. HIRKALA: PLEASE STATE YOUR CASE. MR. LEVENSON: MR. CHAIRMAN, BEFORE WE DO THIS, LET IT BE RECORDED THAT ALL LEGAL NOTICES ARE PROPER AND ALL MAILINGS HAVE BEEN MADE. FOR THE INFORMATION OF THE ZONING BOARD OF APPEALS THIS MATTER WAS A DISCUSSION LAST MONDAY NIGHT AT THE PLANNING BOARD, AND THIS MATTER WILL HAVE TO BE DECIDED BEFORE THE APPLICATION CAN GO BEFORE THE PLANNING BOARD AGAIN. MR. RICHARDS: WE ARE PARTNERS OF THE ALPINE COMPANY. WE HAVE BEEN WORKING ON DEVELOPING A SHOPPING CENTER ON THE PARCEL ON ROUTE 9, FOR JUST UNDER 3 YEARS NOW. WE ARE TO A POINT IN TIME NOW, WHERE WE ARE COMING TO THE END OF OUR SITE PLAN APPROVAL PROCESS WITH THE PLANNING BOARD. AFTER GOING THRU AN EXTENSIVE REVIEW PROCESS, WHERE ALL THE ASPECTS OF THE PROJECT WERE REVIEWED, INCLUDING TRAFFIC, POLLUTION, FIRE PROTECTION AND ALL THOSE ISSUES, TONIGHT WE ARE ASKING FOR A VARIANCE ON THE PARKING REGULATION, TO BE ONE (1) SPACE FOR EVERY 200 SQUARE FEET VERSES ONE (1) SPACE FOR EVERY 150 SQUARE FEET, WHICH THE TOWN ORDINANCE IS RIGHT NOW. WE FEEL THAT WHAT WE ARE ASKING FOR IS MORE THEN ADEQUATE FOR THE PROJECT, WE ARE BUILDING, WHICH IS A FULL RETAIL PROJECT. WE HAVE DONE A STUDY OF WHAT OTHER SHOPPING CENTERS HAVE DONE NATION WIDE, AND WE HAVE USED THE URBAN LAND INSTITUTE AS THE BODY WE GOT THE INFORMATION FROM. NATION WIDE FOR A PROJECT THIS SIZE THEIR PARKING REQUIREMENTS ARE EVEN LESS SPACES THAN WHAT WE ARE ASKING FOR AND CONSIDERABLY LESS THEN THE TOWN ORDINANCE CALLS FOR. IF I MAY TAKE A MOMENT TO READ A COUPLE OF PARAGRAPHS, THIS IS FROM A DOCUMENT FROM THE URBAN LAND INSTITUTE SHOPPING DEVELOPMENT HAND BOOK. IT STARTS OUT BY SAYING MR. TOMPKINS: EXCUSE ME, BUT I DON'T THINK WE HAVE TO SIT HERE AND LISTEN TO THIS, IF YOU WANT TO PROVIDE US WITH THAT, AND MAKE COPIES, I THINK WE CAN READ IT OURSELVES, A 2 PAGE DOCUMENT. MR. HIRKALA: NO! HE SAID 2 PARAGRAPHS. MR. BROOKER: I PERSONALLY THINK IT IS IMMATERIAL. MR. HIRKALA: IT ALL DEPENDS, WE DON'T KNOW IF IT IS IMMATERIAL UNTIL WE KNOW WHAT HE HAS TO SAY. THE MAN IS TRYING TO MAKE A CASE FOR HIS VARIANCE REQUEST, AND I THINK IT IS ONLY FAIR TO LISTEN TO HIM. MR. RICHARDS: THANK YOU. IT STARTS OUT BY SAYING, ONE OF THE CHIEF CONCERNS OF PROVIDING THE INDISPENSABLE PARKING AREA FOR THE NUMBER OF SPACES NEEDED IN THE BEST ARRANGEMENT. THE PROBLEM IS COMPLICATED WHEN THE OFF STREET PARKING REQUIREMENTS OF THE LOCAL ZONING ORDINANCES ARE NOT REASONABLY RELATED TO THE ACTUAL PARKING DEMANDS OF THE SHOPPING CENTER. WHEN THE OFF STREET PARKING AREA REQUIRED BY THE ORDINANCE EXCEEDS In (3) DEMAND, IT BECOMES CLEAR TO THE CENTERS OWNER AND TENANT THAT THE ACTUAL DEMAND FOR SPACE IS MORE SUITABLE BASES FOR DETERMINING THE NUMBER OF SPACES THAT SHOULD BE ESTABLISHED. EXCESSIVE ZONING REQUIREMENTS ALSO RESULTS IN WASTE LAND OF UNUSED PAVEMENT, CAUSING BOTH POOR APPEARANCE AND NEEDLESS EXPENSE TO DEVELOPERS AND TENANTS. THEN IT GOES ON TO THE NEXT PARAGRAPH, BASED ON A COMPREHENSIVE STUDY OF PARKING REQUIREMENTS FOR SHOPPING CENTERS CONDUCTED BY THE URBAN LAND INSTITUTE, UNDER THE DIRECTION OF THE INTERNATIONAL COUNCIL OF SHOPPING CENTERS, THE FOLLOWING BASE PARKING STANDARDS ARE RECOMMENDED FOR A TYPICAL SHOPPING CENTER TODAY, 4 SPACES PER 1000 SQUARE FEET OF GROSS AREA OF SHOPPING CENTER BETWEEN 25,000 AND 400,000 SQUARE FEET, WHICH IS THE SIZE CATEGORY OF THE PROJECT WE ARE TALKING ABOUT, FALLS WITHIN. 4 TO 5 SPACES OF GROSS LEASABLE AREA PER 1000 PERCENT HAVING A GLA OF 400,000 TO 600,000 SQUARE FEET AND FOR ENCLOSED MALLS 5 SPACES PER 1000 SQUARE FEET FOR CENTERS OF 600,000SQUARE FEET OR LARGER. RELATING THAT TO HOW THE ORDINANCE IS WRITTEN, THE ORDINANCE IS CURRENTLY 1 SPACE PER 150 SQUARE FEET WHICH IS 6.67 CARS PER 1000 SQUARE FEET. OUR APPLICATION IS ASKING FOR 1 CAR PER 200 SQUARE FEET WHICH IS 5 CARS PER 1000 SQUARE FEET OF GLA, AND THE STANDARD BOARD NATION WIDE FOR A PROJECT OF THIS SIZE WOULD ACTUALLY BE 1 CAR PER 250 SQUARE FEET, WHICH WOULD BE 4 PARKING SPACES PER 1000 SQUARE FEET. THIS IS TALKING ABOUT TOTAL BUILDING AREA AND AS WE ALL KNOW ABOUT 80% OF THAT IS USED FOR SALE AREA AND THE OTHER 20% IS USED FOR STOCK AND STORAGE, WHICH WOULD NOT HAVE ANY CUSTOMERS, IT IS ALSO REITERATED FURTHER IN ANOTHER STUDY WHICH IS THE OFF STREET PARKING GUIDE FOR MUNICIPAL REGULATIONS OF WESTCHESTER COUNTY. THIS REPORT TALKS ABOUT THE PROBLEM OF MY VARIANCE APPLICATION ON A REGIONAL LEVEL AND THIS TALKS ABOUT IT ON A NATIONAL LEVEL AND THESE 2 REPORTS SAY THE SAME THING. I WILL MAKE IT AVAILABLE TO THE BOARD TO READ ALONG WITH OTHER ADDITIONAL INFORMATION THAT I FOUND. MR. HIRKALA: DID YOU BRING THIS INFORMATION BEFORE THE TOWN BOARD, IN THE PROCESS THE TOWN JUST WENT THRU WITH THE REVISING OF THE ZONING ORDINANCE? MR. RICHARDS: I DID NOT BRING THAT WITH ME, THEY SAID THAT THEY WANTED TO HAVE, TO ASK ME TO GO IN FRONT OF THIS BOARD. MR. HIRKALA: IN THE PROCESS OF THE TOWN BOARD IN REFERENCE TO THE ZONING ORDINANCE, THE TOWN BOARD NOT THE PLANNING BOARD, DID YOU BRING INFORMATION REGARDING YOUR REQUEST BEFORE THE TOWN BOARD? MR. RICHARDS: NO, I DID NOT. MR. HIRKALA: BEFORE WE GO ON, YOU ARE FAMILIAR WITH THE RECOMMENDATION OF THE FIRE BUREAU ? MR. RICHARDS: I JUST GOT THE LETTER THIS EVENING AND I HAVE SOME QUESTIONS REGARDING IT. (4) MR. WIESER: WE DO SHOW FIRE HYDRANTS 044 THE PLANS. I DON'T KNOW WHY THEY ARE SAYING THE MR. HIRKALA: WHERE ON THIS ONE ? MR. RICHARDS: YOU DON'T HAVE A COMPLETE SET OF PLANS. MR. BROOKER: WE HAVE TO ACT ON THIS ONE. MR. LEVENSON: YOUR APPLICATION IS ONLY ON THE PARKING. MR. RICHARDS: WE SUBMITTED A COMPLETE SET OF PLANS. MR. HIRKALA: THE ONLY PART OF THIS THAT WE ARE CONCERNED ABOUT IS THE FACT THAT DUE TO THE RESTRICTED ACCESS OF THE BUILDING IT IS RECOMMENDED THAT NO VARIANCE BE GRANTED FOR ANY REDUCTION IN THE REQUIRED PARKING SPACES. EVEN WITH POSTED FIRE LANES, IF THE VARIANCE IS GRANTED, ANY REDUCTION IN PARKING SPACES WILL RESULT IN VEHICLES BEING PARKED ALL OVER THE PLACE. THAT IS THE ONLY SENTENCE THAT CONCERNS US AS FAR AS THIS HEARING IS CONCERNED. MR. RICHARDS: I ,JUST DON'T UNDERSTAND HOW THAT CONCLUSION WAS ARRIVED AT, WE AREN'T GOING TO USE MR. BROOKER: I CAN GO RIGHT NOW OVER TO THE WALDBAUM'S PLAZA AND LOOK OVER THERE AT THE FIRE LANES, PEOPLE ARE TOO LAZY TO GET OUT OF THEIR CARS, AND PARK IN THE PROPER LANE, RIGHT, NOW OVER THERE THE FIRE LANES ARE JAMMED. MR. LEVENSON: THE COURT RECORDS OF THE TOWN WILL REFLECT THAT THERE ARE OVER 750 SUMMONS ISSUED IN THE PAST YEAR, BY THE FIRE INSPECTOR, MYSELF AND THE BUILDING INSPECTOR FOR FIRE ZONE VIOLATIONS JUST IN WALDBAUMS. MR. RICHARDS: HOW MANY CARS PER 1000 SQUARE FEET DO THEY HAVE OVER THERE ? MR. LEVENSON: THEY ARE AT THE ORDINANCE OF 150 SQUARE FEET, .THERE WAS NO VARIANCE THERE, AND THAT ORDINANCE HAS BEEN IN EFFECT SINCE 1980, AND THAT WAS BUILT AFTER 1980. MR. RICHARDS: WE ALSO HAVE A, WE ALSO ASKED OUR RETAILERS BEFORE WE APPLIED FOR A VARIANCE LIKE THIS, AND EVEN ON THE BUSIEST DAY OF THE YEAR, WHICH IS NOT THE DAY AFTER THANKSGIVING, FOR THIS KIND OF A SHOPPING CENTER PROJECT. THE BUSIEST TIME OF THE YEAR ON THE BUSIEST DAY THE PEEK IS FOR ABOUT 2 HOURS DURING THAT DAY, AND THEY SAID THAT THEY STILL WOULDN'T USE EVERY PARKING SPACE IN THE ENTIRE SHOPPING CENTER, BASED ON WHAT WE HAVE ASKED FOR IN OUR VARIANCE. (5) MR. LEVENSON: I THINK, SO THAT THE RECORDS WILL SHOW, SO YOU KNOW THE COMPOSITION OF THE BOARD. YOU HAVE A FIRE COMMISSIONER, YOU HAVE 2 FIRE COMMISSIONERS SITTING HERE FROM 2 DIFFERENT FIRE DISTRICTS, AND YOU HAVE THE CHIEF OF THE DISTRICT HERE. SO YOU HAVE A GOOD CONVERSATION WITH THEM. MR. TOMPKINS: I SEE ON THE APPLICATION THAT THIS IS PHASE I, CAN YOU BRIEFLY TELL ME, BECAUSE I DON'T KNOW TO MUCH ABOUT THIS PROJECT, I HAVEN'T SEEN THE PLANS WHAT IS PHASE II OR PHASE III. MR. WIESER: SHOWED ON THE MAP WHERE PHASE II WOULD BE. MR. TOMPKINS: ABOUT HOW MANY SQUARE FEET ? MR. WIESER: ABOUT 200,00 MR. LEVENSON: I WILL GIVE IT TO YOU IN CAPSULE FORM. THIS WAS ORIGINALLY AN ALL ENCUMBRANCE JOB. MR. RICHARDS AND HIS PARTNERS FOUND OUT THAT THEY %Mrs WERE GOING TO HAVE DIFFICULTY WITH THE WETLANDS, IN THE CENTER OF THE LOT THEY DECIDED AND IT WAS TO THEIR ADVANTAGE TO DO A PHASE I SO THAT THEY COULD GET 100,000 SQUARE FEET OR SO INTO MARKET. THE STIPULATIONS OF THE PLANNING BOARD IS THAT THEY HAVE 18 MONTHS FROM THE TIME THE PLANNING BOARD GRANTS APPROVAL OF PHASE I, TO COME IN AND GET APPROVAL FROM THE DEC AND CORPS OF ENGINEERS AND THE PLANNING BOARD TO DO PHASE II. MR. TOMPKINS: AND IF THEY DON'T GET DEC APPROVAL THEN WHAT ? MR. LEVENSON: IT'S DOWN THE DRAIN. MR. TOMPKINS: THE WHOLE PROJECT ? MR. LEVENSON: NO JUST PHASE II. MR. TOMPKINS: IS THAT ALL THERE IS, 2 PHASES ? I HAVE ANOTHER QUESTION AT 150 SQUARE FEET HOW MANY PARKING SPACES WILL THAT BE, FOR A 125,000 SQUARE FOOT PROJECT ? MR. RICHARDS: I HAVE ALL MY OTHER MATH DONE EXCEPT THAT. MR. HIRKALA: 734 MR. TOMPKINS: HOW ABOUT AT 200 SQUARE FEET ? MR. HIRKALA: 550 MR. LEHIGH: IF YOU CAN CUT IT DOWN, IT ALLOWS FOR MORE RETAIL SPACE DOESN'T IT ? MR. RICHARDS: YES. MR. WIESER: 80% IS SALE SPACE AND 20% STORAGE. (6) MR. HIRKALA: THAT IS NOT OUR CONCERN, OUR CONCERN IS THE ORDINANCE, AND THE ORDINANCE SAYS 150 SQUARE FEET, HOW YOU USE THAT 150 SQUARE FEET HAS NOTHING TO DO WITH US. .MR. LEHIGH: MAY I ASK A COUPLE OF QUESTIONS ? HAVE YOU PURCHASED THE PROPERTY ? MR. RICHARDS: THE PROPERTY IS UNDER OPTION IT HAS NOT BEEN PURCHASED. MR. LEVENSON: SUBJECT TO APPROVALS OF THE PLANNING BOARD AND SO ON. MR. LEHIGH: SO IN OTHER WORDS THERE IS NO FINANCIAL HARDSHIP TO YOU PEOPLE ONE WAY OR THE OTHER. MR. RICHARDS: NO! NO! A MAJOR HARDSHIP. RIGHT NOW WE HAVE ONE MILLION EIGHT HUNDRED THOUSAND INVESTED IN THIS PROJECT, THIS PARKING VARIANCE EVEN THOUGH OUR APPLICATION STATES, WHAT WE ARE ASKING FOR WILL NEVER USE EVERY PARKING SPACE, EVEN ON A 5 TO 1 OR 4,TO 1 WHICH IS A NATIONAL AVERAGE WOULD PROBABLY BE ADEQUATE, WE NEED THIS SIZE BUILDING TO GET THRU WHEN I TALK ABOUT GETTING THROUGH I MEAN SURVIVING A VERY BIG FINANCIAL HARDSHIP. MR. LEHIGH: IN OTHER WORDS, YOU KNEW THIS WHEN YOU UNDERTOOK THIS PROJECT. THE DAY YOU UNDERTOOK THIS YOU KNEW IT WAS GOING TO BE A GAMBLE, WHETHER YOU WERE GOING TO GET THIS THING OK'ED. IN OTHER WORDS THE SWAMP WAS STILL THERE, THE ZONING LAW WAS IN PLACE AT THE TIME, MR. RICHARDS: THAT'S TRUE, BUT WHAT I DID NOT KNOW THAT IT WOULD TAKE AS LONG AS IT WOULD, TO GET TO THIS POINT, AND THAT IS PROBABLY THE BIGGEST REASON WHY THE COST IS SO HIGH. MR. HIRKALA: ARE YOU SAYING THAT YOU KNEW THAT WHEN YOU STARTED THIS PROJECT YOU WOULD NEED A VARIANCE FOR THE PARKING ? MR. RICHARDS: NO! IS THAT WHAT YOU ASKED ME ? MR. LEHIGH: NO, WHAT I ASKED HIM IS IF HE KNEW WHAT HIS APPLYING FOR A VARIANCE FOR WAS IN FORCE AT THE TIME THAT HE MADE THE COMMENT ON THIS DEAL. THAT IS WHAT I AM ASKING FOR. I WANT THE TIME FRAME OK, SO THAT I KNOW WHETHER HE GAMBLED AND WANTS ME TO PULL HIS COALS OUT OF THE FIRE FOR HIM OK. THAT'S WHAT I REALLY WANT TO KNOW AND SO FAR THAT IS WHAT HE IS TELLING ME, HE TOOK A GAMBLE ON THIS THING AND IF HE DID, THAT'S HIS PROBLEM. MR. BROOKER: THAT'S THE WAY I READ IT TO. m (7) MR. HIRKALA: LET'S GO ON, LETS HOLD THE PHONE, WE ARE GOING OFF. In MR. TOMPKINS: NO, WE ARE NOT, HE HAS TO PROVE A FINANCIAL HARDSHIP. MR. HIRKALA: HE DOES NOT! A PRACTICAL DIFFICULTY, IT'S A AREA VARIANCE IT HAS NOTHING TO DO WITH FINANCIAL HARDSHIP. LET'S GET ON WITH THE CASE IN FRONT OF US, THE CASE IS A PRACTICAL DIFFICULTY THAT WOULD WARRANT A INCREASE OR A DECREASE IN ARGUMENT OF THE TOWN ZONING FOR PARKING. IT IS AS SIMPLE AS THAT, AND I HAVEN'T HEARD ANY EVIDENCE FROM THE APPLICANT AS TO WHAT THE LAW SAID, WHICH PUTS US IN A POSITION TO GRANT THE VARIANCE OK. ARE YOU FAMILIAR WITH THE LAWS OF THE STATE OF NEW YORK, AS TO WHAT OUR RESTRICTIONS ARE TO GRANT A VARIANCE OR NOT ? MR. RICHARDS: WHY DON'T YOU REFRESH MY MEMORY. MR. HIRKALA: FIRST OF ALL IT IS A AREA VARIANCE YOU HAVE TO PROVE PRACTICAL DIFFICULTY. IN REGARDS TO THE WETLANDS, YOU PURCHASED THE PROPERTY KNOWING FULL WELL THE WETLANDS WERE THERE, YOU WENT TO CONTRACT TO PURCHASE TO PURCHASE THE PROPERTY KNOWING ABOUT THE WETLANDS. I ASSUME YOU RESEARCHED ALL THIS BEFORE YOU COMMITTED ANY FOUNDS. MR. RICHARDS: THAT'S RIGHT. MR. HIRKALA: WHAT I'M WAITING TO HEAR IS SOMETHING ALONG THE LINES THAT WILL TELL US THAT SOME WHERE IN BETWEEN SOMETHING HAPPENED TO WARRANT US TO ISSUE YOU THE VARIANCE. I HAVEN'T HEARD ANYTHING THAT'S WHY I ASKED YOU IF YOU HAD PRESENTED THIS TO THE TOWN BOARD. YOU ARE ASKING US TO CHANGE THE ZONING LAW. THE CASE YOU ARE GIVING US SHOULD HAVE GONE TO THE TOWN BOARD NOT THE ZBA. MR. RICHARDS: I WAS TOLD TO COME HERE BY THE PLANNING BOARD, THAT'S THE ONLY REASON WHY I AM HERE. THERE ARE A LOT OF THINGS THAT HAVE CHANGED WITH THE DEC, WHEN WE FIRST STARTED THIS PROJECT 3 YEARS AGO DEC WAS MUCH MORE LIBERAL ABOUT FILLING WETLANDS, THEN THEY ARE TODAY. AS WE ALL KNOW IT IS GETTING WORSE. WHAT WE ORIGINALLY COULD HAVE DONE IS HAD A SMALL FILLING OF THE WETLANDS FOR PHASE I, AND A MUCH LARGER FOR PHASE II, SINCE THEN DEC HAS BECOME STRICTER AND STRICTER, AND DURING THE LENGTH OF TIME IT HAS TAKEN US TO GET TO THIS POINT WHICH WILL BE 3 YEARS IN FEBRUARY THERE HAS BEEN A LOT OF CHANGES WHICH HAS PREVENTED US FROM EVEN ENCROCH- ING ON THE WETLANDS BUFFER AREA AT THIS POINT IN TIME. MR. WIESER: MR. CHAIRMAN, THE PLANNING BOARD ALSO REQUESTED MORE GREEN WHICH ELIMINATED PARKING. MR. HIRKALA: IS THE BUILDING COVERAGE ON THAT PARTICULAR PIECE OF PROPERTY WELL WITHIN THE LIMITS OF THE ZONING ORDINANCE ? (8) MR. RICHARDS: WE ARE WITHIN THE LIMITS OF GREEN AREA SPACE AND THE ORDINANCE. MR. HIRKALA: WHAT THE PLANNING BOARD WOULD LIKE TO SEE, DOESN'T MEAN YOU PEOPLE HAVE TO, YOU CAN ARGUE WITH THE PLANNING BOARD ON THAT. MR. RICHARDS: THERE HAS BEEN A EXTENSIVE AMOUNT OF GIVE AND TAKE, FROM BOTH SIDES OVER THE YEARS. MR. HIRKALA: IS THERE ANYTHING ELSE FROM THE BOARD, BEFORE I OPEN IT TO THE PUBLIC ? MRS. ROE: I'M A LITTLE PUZZLED, THEY ARE ASKING FOR FEWER PARKING SPACE? MR. TOMPKINS: 183 FEWER SPACES. MR. LEHIGH: YES FEWER SPACES BUT MORE BUILDING AREA, CORRECT ? MR. HIRKALA: WELL NO, THE ONLY WAY THEY COULD FULFILL THE REQUIREMENTS IS TO DECREASE THE BUILDING AREA AND A LOT MORE PROPERTY TO PARKING. MR. RICHARDS: LET ME ASK YOU THIS, DOES IT MAKE SENSE TO BUILD THE ADDITIONAL PARKING, AND HAVE IT VACANT FOREVER ? MR. HIRKALA: THERE IS ALSO A PROVISION IN THE ORDINANCE THAT ALLOWS THE PLANNING BOARD TO REDUCE THE REQUIREMENTS FOR PARKING UP TO 500, PROVIDED THE APPLICANT CAN SHOW ON THE SITE PLAN THE FUTURE PARKING IF REQUIRED. MR. TOMPKINS: THAT'S UP TO THE PLANNING BOARD TO GRANT. MR. RICHARDS: THE ONLY THING THE PLANNING BOARD HAS SAID AT THE PUBLIC HEARING, IS YOU GRANT A VARIANCE TO US FOR THE PARKING, THEY WOULD ACCEPT IT. MR. HIRKALA: IF WE GRANT IT THEY HAVE NO CHOICE BUT TO ACCEPT IT. MRS. ROE: I JUST DON'T UNDERSTAND WANTING LESS PARKING SPACES FOR THE SAME SIZE BUILDING. MR. RICHARDS: BECAUSE WE WOULD BE BUILDING A LOT OF PARKING SPACES THAT WOULD NOT BE USED. FIRST OFF LET'S BE CLEAR, WE WOULD BE FOOLISH ON OUR PART TO BUILD LESS PARKING , BECAUSE WE RECEIVE OUR PROFIT FROM PERCENTAGE RENT FROM THE TENANTS. IF THE TENANTS DON'T REACH A HIGH VOLUME IN SALES, BECAUSE CUSTOMERS CAN'T GET IN AND PARK THEIR CARS THEN I DON'T RECEIVE PERCENTAGE RENT. BELIEVE ME THIS IS A 2 EDGE SWORD, IT EFFECTS ME ALSO. WHAT I WOULD LIKE TO HAVE IS EVEN LESS PARKING THEN WHAT I AM ASKING FOR. WHICH IS STILL WITHIN THE GUIDELINES OF THE URBAN LANDS INSTITUTE, BUT I WANT TO PREPARE FOR 10 TO 15 TO 20 YEARS OUT, AND MAKE SURE I DO HAVE SOME (9) OVERFLOW FOR THE FUTURE, AND THAT'S WHY I DIDN'T ASK FOR 1 SPACE FOR EVERY 250 FEET, I ASKED FOR 1 SPACE FOR EVERY 200 SQUARE FEET. I COULD EVEN GET A MUCH LARGER BUILDING AND FEWER PARKING SPACES AND STILL BE WITHIN THE GUIDELINES OF THE URBAN LANDS INSTITUTE, BUT WE DECIDED NOT TO DO THAT. MR. TOMPKINS: IF PHASE I WAS COMPLETED AND YOU WENT INTO PHASE II I AM ASSUMING YOU ARE GOING TO COME BACK AND ASK THIS BOARD THE SAME THING FOR PHASE II. CORRECT ME IF I AM WRONG. MR. WIESER: PROBABLY NOT, BECAUSE WE HAVE MORE LAND HERE AND WE THEREFORE HAVE MORE PARKING. WE COULD WIND UP WITH MORE PARKING IN PHASE II THEN IN PHASE I. MR. RICHARDS: IF WE DIDN'T ASK THEN WE WOULD THEN HAVE ANOTHER PLUS FOR PARKING, BECAUSE I AM NOT KIDDING YOU THE WAY THE ORDINANCE ARE WRITTEN IT WOULD HAVE QUITE A BIT OF SURPLUS PARKING, THAT WOULD NEVER BE USED. THAT IS WHY I BROUGHT SOME DOCUMENTATION TO SUPPORT WHAT I AM SAYING. MR. LEHIGH: FIRST YOU HAVE BEEN IN FRONT OF THE PLANNING BOARD FOR 3 YEARS, IT SEEMS TO ME YOU SHOULD HAD BARGAIN BACK AND FORTH ON YOUR PARK- ING SPACES THERE. THEY HAVE THE PRIMARY CONTROL OVER THIS, YOU COULDN'T HAVE GIVEN THEM A FEW MORE PARKING SPACES. WHAT IS THE REAL PROBLEM, I HAVEN'T HEARD ANYTHING FROM THE PLANNING BOARD AND I WOULD LIKE TO HEAR A STATEMENT FROM THE PLANNING BOARD ON THIS, BECAUSE YOU ARE AT A STAND STILL, UNLESS WE GRANT YOU A VARIANCE. MR. LEVENSON: JUST BY THAT STATEMENT MR. LEHIGH YOU SHOULD KNOW THE ANSWER. MR. LEHIGH: I KNOW YOU HAVE A PROBLEM BUT I WOULD STILL LIKE TO KNOW. MR. LEVENSON: THE PLANNING BOARD'S POSITION IS THAT THE'APPLICATION AS IT STANDS NOW SHOULD GO THROUGH WITHOUT A VARIANCE, AND IT'S UP TO THE APPLICANT TO PARTITION THE PLANNING BOARD ON SECTION 470 FOR A WAIVER OF 10%, 20%, 30%, 12% . MR. LEHIGH: WELL UNDER THAT, FROM WHAT I UNDERSTAND OF THE VARIANCE PROCEDURE, THEY HAVE NO RIGHT TO BE HERE FOR A VARIANCE. MR. LEVENSON: THEY ARE ASKING FOR A SPECIFIC CHANGE, FROM 150 TO 200 FEET THEY ARE NOT ASKING FOR A DECREASE IN PARKING. IF I MAY MR. CHAIRMAN, MAY I READ FROM ZONING COURT OF APPEALS TECT. THE NOTABLE DIFFERENCE SET FORTH IN WAXFORD VS. MC---- , WAXFORD ACKNOWLEDGES THE ABSENTS OF ANY DEFINITION OF PRACTICAL DIFFICULTY, BUT NONE THE LESS STATED 5 PRACTICES THE ZBA SHOULD CONSIDER. 1 THE MAGNITUDE OF THE VARIANCE. 2. IT'S EFFECT ON THE NEIGHBORHOOD. 3. WHETHER THE PROBLEM COULD GET CORRECTED BY A SOLUTION OTHER THEN A VARIANCE. 4. THE EFFECT ON THE POPULATION INCREASE ON PUBLIC FACILITIES. AND 5. WHETHER THE INTEREST OF JUSTICE WOULD BE SERVED. THE RULES SET FORTH INCORPORATED AS ORDINANCE. (10) IN THE WAXFORD CASE WERE WIDELY FILED AND WERE STANDARDS TO BE FOLLOWED BY MANY MUNICIPAL ZONING PI MR. HIRKALA: ANYMORE COMMENTS FROM THE BOARD ? IF NOT MAY I HEAR FROM THE FLOOR. MR. CORTELLINO: WAPPINGER FALLS, I WOULD LIKE A CLARIFICATION ON THAT URBAN LANDS INSTITUTE, IS IT A PRIVATE ORGANIZATION OR WHO SUPPORTS IT ? MR. RICHARDS: THE GOVERNMENTAL AGENCY WHICH GIVE OUT PUBLICATIONS NATIONWIDE IN STUDIES OF OFFICE BUILDING, RETAIL BUILDINGS, WAREHOUSE SPACE, AND ANY OTHER LAND USE. IT MAKE RECOMMENDATIONS ON NEW TRENDS. MR. HIRKALA: THIS IS A GOVERNMENTAL AGENCY YOU SAID ? MR. RICHARDS: I BELIEVE IT IS. MR. CORTELLINO: I DIDN'T ASK FOR I BELIEVE,, I ASKED FOR EXACT. MR. LEHIGH: THIS IS A GUIDE YOU ARE REFERRING TO. MR. CORTELLINO: WILL I DON'T KNOW IF IT IS A PRIVATE ORGANIZATION SUPPORTED BY REALTORS FOR INSTANCE. MR. HIRKALA: ANY ONE ELSE ? MRS. COLLINS: LOSEE ROAD, WAPPINGER, SECRETARY FOR THE CRG, WHICH IS A NEIGHBORHOOD ORGANIZATION, FOUNDED AT THE TIME OF APLINE COMING INTO THE NEIGHBORHOOD, AND I KIND OF FIND MYSELF IN A STRANGE POSITION TO ACTUALLY WELL I DON'T WANT TO SAY SPEAK IN FAVOR OF IT, BUT HAVING GONE THRU WITH THESE PEOPLE 2 OR 3 YEARS OF MEETINGS AND EVERYTHING ELSE, WE HAVE COME TO ACCEPT THE IDEA OF PHASE I BEING A REALITY. AT THE PRESENT TIME PHASE I IS NOT IMPACTING US THAT BADLY, AND AS FAR AS THE PARKING VARIANCE, THE WAY THAT I UNDERSTAND IT, IT CAME ABOUT THROUGH THE PLANNING BOARD MEETING REQUIRING THEM TO DECREASE THE SIZE OF THE WALLS AND ETC.., THEY CAME UP WITH THIS, WHICH REQUIRES FEWER PARKING SPACES, FOR US. OUR NEIGHBORHOOD ORGANIZATION WE ARE BASICALLY NOT AGAINST THAT, WITH THE SAME IDEA WITH FEWER PARKING SPACES IS BETTER THEN MORE OF THEM. I JUST WANTED TO SAY THAT. MR. TOMPKINS: I APPRECIATE YOUR COMMENTS AND I UNDERSTAND WHERE YOU ARE COMING FROM AND I FEEL THE SAME AS YOU IF I WAS OUT THERE, BUT WE HAVE TO GO BY WHAT IS IN THE ZONING LAW OF WAPPINGER. THE MINUS OF 183 PARKING SPACES, MY SUGGESTION IS TO GO BACK TO THE PLANNING BOARD AND WORK OUT - SOMETHING WITH THEM, BECAUSE I DON'T SEE HOW WE COULD COME CLOSE TO GRANTING WHAT YOU ARE ASKING. MR. RICHARDS: WHY IS THAT ? MR. HIRKALA: I GOT A PROBLEM BASED ON THAT, I AM IN AGREEMENT WITH WHAT MR. TOMPKINS JUST SAID. I DON'T THINK YOU HAVE TOUCHED ALL THE BASES YET. IF YOU HAD MADE APPLICATION TO THE PLANNING BOARD FOR REDUCTION IN PARKING UNDER THE ZONING LAWS WE HAVE NOW, THERE IS NO NEED FOR YOU TO GET A VARIANCE. BECAUSE YOU CAN GET EXACTLY WHAT YOU ARE ASKING FOR FROM THE PLANNING BOARD. MR. RICHARDS: THEY ASKED ME TO COME HERE AND THAT'S WHY I AM HERE. MR. LEHIGH: IF YOU HAD DISAGREED WITH WHAT THEY HAD TO SAY, IN OTHER WORDS THAT IS A ALTERNATIVE TO YOU, YOU DON'T HAVE TO COME HERE, YOU CAN STILL BARGAIN WITH THE PLANNING BOARD OVER WHATEVER THEY WANT IN RETURN FOR THE REDUCTION IN PARKING SPACE THAT YOU ARE REQUESTING , AND SINCE THAT'S BARGAINING -----, I DON'T THINK WE HAVE ANY RIGHT TO GIVE YOU A VARIANCE. MR. RICHARDS: I FEEL LIKE I AM GOING AROUND IN CIRCLES. MR. HIRKALA: WELL I CAN UNDERSTAND THAT, BUT THAT'S WHY I ASKED YOU BEFORE IF YOU HAD DISCUSSED WITH THE PLANNING BOARD A REQUEST ON YOUR PART FOR A REDUCTION IN PARKING SPACES. BECAUSE UNDER THE ORDINANCE THE PLANNING BOARD HAS THE RIGHT TO GRANT UP TO 50 o REDUCTION, THE ONLY THING YOU HAVE TO SHOW ON THE PLANS IS WHERE THE FUTURE PARKING WILL BE IF IT IS DETERMINED THAT LATER ON IT IS REQUIRED. IN OTHER WORDS IF YOU SHOW THE PARKING, IF YOU COME IN HERE WITH A 25 a REDUCTION IN PARKING OF YOUR SITE PLAN, BUT YOU SHOW WHERE YOU CAN PUT THOSE CARS IF REQUIRED AND IT IS DETERMINED 2 OR 3 YEARS DOWN THE ROAD THAT IT IS A MESS UP THERE, AS IT IS JUST LIKE THE WALDBUAM'S PLAZA, THEN THE PLANNING BOARD CAN PULL YOU RIGHT BACK IN AND SAY OK, BUILD THE PARKING SPACES. WHAT THIS DOES IS PUT THE TOWN IN A POSITION WHERE WE ARE SAFE. BUT YOU HAVE TO SHOW THE SPACES, AND IF YOU DON'T HAVE THE SPACE THERE, AND DON'T HAVE THE ABILITY TO SHOW IT, ALL THAT TELLS ME IS THAT YOU ARE LOOKING FOR A REDUCTION IN PARKING SO YOU CAN INCREASE YOUR RETAIL SPACE. AND WE CAN'T UNDER THE LAW GRANT YOU RELIEF FOR THAT SOLE REASON, UNLESS YOU CAN PROVE TO US THERE IS A SIGNIFICANT ECONOMIC INJURY. IN OTHER WORDS YOU ARE GOING BANKRUPT. MR. RICHARDS: OK, I AM TELLING YOU WE WILL GO BANKRUPT. I CAN OPEN UP MY BOOKS TO YOU. MR. HIRKALA: WELL IN MY VIEW YOU ARE GOING TO HAVE TO DO THAT. MR. RICHARDS: LET ME TELL YOU SOMETHING, 3 YEARS AGO I DIDN'T KNOW THAT IT WOULD TAKE ME 3 YEARS TO GET TO THIS PROCESS, I DIDN'T KNOW DEC WAS GOING TO BE MUCH HARDER ON ME, I DIDN'T KNOW THAT THE PLANNING BOARD WAS GOING TO ASK ME TO JUMP THROUGH HOOPS, I DIDN'T KNOW I WOULD HAVE TO RE- DO MY PLANS 5 TIMES, I DIDN'T KNOW THESE THINGS WHEN I FIRST STARTED AND THAT'S WHY I AM HERE TONIGHT. I WOULD HAD MUCH RATHER BEEN HERE 3 YEARS AGO. m (12) m MR. HIRKALA: I HAVE A PROBLEM WITH THE STATEMENT YOU JUST MADE. YOU DIDN'T KNOW THAT THE PLANNING BOARD WAS GOING TO MAKE YOU RE -DO YOUR PLANS 5 TIMES. I WAS HERE FROM THE BEGINNING AND AT THE PUBLIC HEARING AND UNDER THE LAW I AM ENTITLED TO SIT ON THIS BOARD AND PUT FORTH MY PERSONAL OBSERVATIONS AND I HAVE BEEN AT THE PUBLIC MEETINGS THAT YOU PEOPLE HAVE HAD. AND YOU HAVE AT TIMES STONE WALLED WITH THE PLANNING BOARD. I HAVE SEEN WHERE THE PLANNING BOARD HAS REQUESTED SOMETHING OF YOU, AND YOU HAVE SAID YOU DIDN'T WANT TO DO IT. MR. RICHARDS: I CANNOT REMEMBER NOT DOING WHAT WAS REQUESTED. MR. HIRKALA: WELL I MADE A REQUEST PERSONALLY AT THE ENVIRONMENTAL IMPACT PUBLIC HEARING. I MADE THE REQUEST THAT THERE BE SHOWN A SITE PLAN, A SITE PLAN BE PRESENTED SHOWING THE DEVELOPMENT AT THE PRESENT CONTOUR, WITHOUT STRIPPING THE LAND, AND RE - DOING THE CONTOURS OF THE LAND. NO WHERE WAS IT EVER, EVEN TALKED ABOUT, IT WASN'T TALKED ABOUT IN THE FINAL ENVIORN - MENTAL IMPACT STATEMENT, IT WASN'T PRESENTED, IT WAS COMPLETELY IGNORED, AND I PERSONALLY MADE THAT REQUEST. IT IS IN THE MINUTES SO THIS SHOWS ME THAT YOUR STATEMENT THAT YOU HAVE DONE EVERYTHING YOU POSSIBLY COULD IS NOT NECESSARILY SO. THERE IS SOMETHING'S YOU DIDN'T DO. ANOTHER THING I'M ASKING YOU, IF YOU STUDIED THE ORDINANCE, OR HAD YOUR COUNCIL, OR WHOM EVER YOU MIGHT HAVE, STUDY THE ORDINANCE TO THE FULL EXTENT, YOU WOULD HAVE KNOWN THAT YOU CAN PUT FORTH A REQUEST TO THE PLANNING BOARD FOR A REDUCTION IN PARKING SPACE. MR. RICHARDS: OK. I DID TALK TO THE PLANNING BOARD ABOUT 2 PARKING VARIANCES, ONE WAS TO REDUCE THE SIZE OF EACH SPACE, AND THE OTHER WAS TO REDUCE THE NUMBER OF SPACES. THE PLANNING BOARD SAID THAT THEY DID NOT WANT ME TO REDUCE THE SIZE OF EACH SPACE ANY FURTHER, BECAUSE THEY FELT IN THEIR OWN MINDS THAT A 10X20 SPACE IS WHAT IT SHOULD BE. MR. HIRKALA: IN THE FIRST PLACE THEY COULDN'T DO THAT FOR YOU, YOU WOULD HAVE TO COME TO US. MR. RICHARDS: OK, SO THEY DID SAY AS FAR AS REDUCING THE NUMBER OF SPACES AND I HAVE HAD THE SAME CONVERSATION WITH THEM, THEY SAID OK, THAT'S FINE BUT YOU HAVE TO GO BEFORE THE, THIS BOARD HERE AND TELL THEM WHAT YOUR PROBLEMS AND CONCERNS ARE. MR. HIRKALA: YOU SAID THAT THE PLANNING BOARD HAD APPROACHED THE SECTION 470 ? MR. LEVENSON: THERE WAS NEVER A REQUEST AS THE RECORDS WILL INDICATE WHERE THERE WAS A DISCUSSION TO USE THE REDUCTION PHASE. THERE WAS A REQUEST, THE REQUEST WAS THAT WE WANT TO REDUCE THE SQUARE FOOTAGE REQUIREMENTS FROM 150 TO 200. (13) MR. HIRKALA: WHAT'S THE PLEASURE OF THE BOARD ? ri MR. TOMPKINS: BEFORE WE VOTE, I THINK OUR RECOMMENDATION BACK TO THE PLANNING BOARD ON THIS SUBJECT PROBABLY WOULD BE IN ORDER. RIGHT ? MR. BROOKER: I WOULD IMAGINE SO. MR. TOMPKINS: I DON'T SEE US HAVING ANY ALTERNATIVES TO BURYING THE ZONING ORDINANCE. THEY JUST WENT THROUGH A ZONING CHANGE, IF ANYTHING WAS EVEN BROUGHT UP WHERE IT WAS GOING TO BE CHANGED IN THE NEW ORDINANCE, WE WOULD HAVE A TENDENCY TO SAY YES, WE WOULD GO ALONG WITH IT. BUT IT'S BEEN THERE AND IT'S NOT CHANGED AND YOU KNEW IT AND EVERYONE KNEW IT AND IT'S IN BLACK AND WHITE. MR. BROOKER: I DON'T THINK WE HAVE GRANTED A VARIANCE OF THIS, FOR AS LONG AS I HAVE SAT ON THE BOARD, I DON'T REMEMBER GRANTING ONE. MR. HIRKALA: WELL WE CAN'T DISCUSS THAT, EACH CASE IS ON IT'S OWN MERITS, THE KEY HERE IS WHETHER OR NOT THE CASE HERE IS THIS APPLICANT HAS PRESENTED A CASE THAT WARRANTS CONSIDERATION, AND I'M OF THE OPINION, AND THAT'S ONE VOTE, AND THERE ARE 5 VOTES ON THIS BOARD, I AM OF THE OPINION THAT YOU HAVEN'T FULFILLED THE OPPORTUNITY TO EXPLORE ALL AVENUES. AND I THINK ONE AVENUE THAT HASN'T BEEN EXPLORED IS THE REQUESTING OF THE PLANNING BOARD, TO REDUCE THE AMOUNT OF PARKING SPACES, AND SHOW ON THE SITE PLAN THE FUTURE PARKING OK. MR. RICHARDS: BUT WHEN I ASKED THEM FOR THAT THEY SENT ME HERE. I MEAN WHY DID THEY SEND ME HERE IF THEY CAN GRANT THAT ? MR. HIRKALA: I REALLY DON'T KNOW. HERE IS THE MAN RIGHT HERE WHO SAID YOU DIDN'T ASK FOR THAT. ( REFERRING TO MR. LEVENSON ) YOU ASKED FOR SOMETHING ELSE. MR. RICHARDS: I ASKED FOR BOTH AND WE HAD A LONG CONVERSATION. MR. HIRKALA: WHO DID YOU HAVE THE CONVERSATION WITH ? MR. RICHARDS: BILL PARSONS WAS INVOLVED IN THE CONVERSATION. MR. HIRKALA: WHO ELSE ? HE HAS JUST ONE VOTE ON THE BOARD WHO ELSE ? THERE ARE SEVEN MEMBERS ON THAT BOARD. MR. LEHIGH: THEY MUST HAVE MINUTES ON THIS. MR. RICHARDS: IT WAS IN A PUBLIC MEETING LIKE THIS. IT WASN'T ONE ON ONE LIKE ON THE TELEPHONE OR ANYTHING LIKE THAT. MR. HIRKALA: YOU CAN DO ANYTHING YOU WANT, YOU ARE THE APPLICANT AND YOU HAVE PRESENTED YOUR CASE, IF YOU HAVE ANYTHING MORE TO SAY zm- (14) ON THE PRACTICAL DIFFICULTY FINE. BUT IN MY OPINION, I SEE WHERE YOU HAVEN'T EXPLORED ALL THE OPPORTUNITIES TO HANDLE THIS WITHOUT COMING FOR A VARIANCE. I THINK THERE IS ANOTHER WAY. MR. WIESER: MR. CHAIRMAN, WE CHANGED THINGS AROUND SO MANY TIMES AND WE REALLY, THIS IS THE BEST WAY OF GETTING THE MAXIMUM OUT OF IT, AND I DON'T THINK THERE IS ANY OTHER WAY TO GO. WE HAVE TO THINK SO THAT THE NUMBERS WORK, THIS IS WHERE WE ARE RUNNING INTO PROBLEMS. I DON'T MIND TO CUT, IF WE HAVE TO BUT THEN MR. HIRKALA: BUT YOU SEE THAT'S, WHAT KIND OF NUMBERS YOU CAN PULL OFF AN INVESTMENT IT'S NOT SOMETHING WE HAVE TO USE IN OUR DELIBERATION. THE ONLY WAY WE CAN USE THAT IN OUR DELIBERATION IS IF YOU CAN PROVE TO US THAT THE SIGNIFICANT ECONOMIC INJURY IS SUCH THAT YOU GUYS ARE GOING TO BE BUSTED. AND I WILL TELL YOU RIGHT NOW, THAT I MYSELF AM GOING TO DEMAND FOR YOU TO PROVE IT. AND THAT'S PRETTY MUCH THE WAY IT IS GOING TO GO. MR. RICHARDS: LET ME ASK YOU ANOTHER QUESTION, I REALIZE THAT THE _ BOARD IS IN A VERY TUFF SPOT ON THIS ISSUE, BECAUSE IF WE WERE TO BUILD, WHAT THE ORDINANCE IS ASKING US TO BUILD, I DON'T THINK THERE IS ANYONE ON THE BOARD THAT AGREES THAT PEOPLE SHOULD GO AROUND AND WASTE A TREMENDOUS AMOUNT OF RESOURCES AND MONEY AND EVERYTHING ELSE, AND ADDITIONAL BLACK TOP AND ASPHALT. I AM TELLING YOU AND I THOUGHT I PROVED IT THAT THERE IS NO WAY IN THE WORLD ARE WE EVER GOING TO USE AS MANY PARKING SPACES AS THE ORDINANCE IS ASKING US TO BUILD. BY THE SAME TOKEN YOU HAVE A JOB TO UPHOLD THE LAW, AND IT SEEMS LIKE WE ARE IN A MIDDLE SITUATION AS WELL. MR. HIRKALA: WE HAVE NO LEEWAY, BUT IN MY VIEW TO FALL WITHIN THE GUIDELINES OF THAT LEEWAY. AND THE PRIMARY REASON IS BECAUSE THERE IS A POSSIBILITY THAT YOU CAN REDUCE THE AMOUNT OF PARKING REQUIRED BY GOING TO THE PLANNING BOARD. ALL THEY HAVE TO DO IS SAY OK WE GRANT YOU A REDUCTION, BECAUSE THEY HAVE THE RIGHT UNDER THE ORDINANCE TO DO THAT. THE ONLY MAJOR REQUIREMENT IS THAT YOU HAVE TO SHOW IT ON THE PLAN, YOU HAVE TO SHOW FUTURE PARKING ON THE PLAN. MR. RICHARDS: OK, SO IF I WENT BEFORE THE PLANNING BOARD, I JUST WANT TO MAKE SURE THIS IS CLEAR, BECAUSE I'VE BEEN IN THIS KIND OF CONVERSATION BEFORE, I JUST WANT TO UNDERSTAND IT. IF I GO TO THE PLANNING BOARD AND THEY SAY, YES WE WILL ALLOW YOU TO USE ONE SPACE PER EVERY 200 FEET INSTEAD OF ONE SPACE FOR EVERY 150 MR. HIRKALA: NO, THAT'S NOT THE WAY IT WORKS. THAT'S THE PROBLEM AND WHERE THE CONFUSION COMES IN. YOU ARE ASKING FOR A REDUCTION m t (15) IN THE ZONING BOARDS REQUIREMENTS, YOU STILL HAVE TO SHOW ALL THE PHASES THAT THE ZBA SAYS AT 150 SQUARE FEET, BUT YOU DON'T HAVE TO BUILD THEM. MR. RICHARDS: OK, SO LET'S SAY HYPOTHETICALLY IF I COULD SHOW, I COULD BUILD THE ADDITIONAL SPACES HERE OR HERE MR. HIRKALA: I AM NOT GOING TO TALK TO THE PLANNING BOARD, THAT DEPENDS ON THEM. MR. RICHARDS: OK, WHERE EVER I SHOW IT, BUT IF I AM ABLE TO SHOW THE ADDITIONAL PARKING SPACES AND THE PLANNING BOARD DOES HAVE THE POWER. MR. LEHIGH: THEY DO. MR. LEVENSON: MARK IT GRAY, AS COMPARED TO THE WHITE SECTION, THAT THESE ARE THE 183 SPOTS THAT WE CAN BUILD, BUT WE ARE ASKING FOR A WAITING ON, AND DON'T USE THE WORDS FROM 150 TO 200. USE THE WORDS f 750 TO 583 YOU ARE LOOKING FOR A 25% DECREASE IN PARKING. I AM GIVING YOU ROUND NUMBERS. DON'T USE 150 TO 200 SHOW THEM THE PLAN THAT YOU CAN BUILD THE 750 SPACES, BUT SHOW THAT YOU WANT A PERCENTAGE REDUCTION OF THE PARKING REQUIREMENT BY THIS AMOUNT, TO BRING IT DOWN, BUT YOU WILL PUT ON THE DRAWING THAT IF CIRCUMSTANCES SHOULD CHANGE, AND THAT IF THE PLANNING BOARD AT SOME FUTURE TIME SHOULD DECIDE THAT THIS THING HAS BECOME A FIASCO AND THEY WANT THE SPACES THAT YOU WILL BUILD THEM, OR YOUR SUCCESSOR WILL. IT'S DONE. MR. LEHIGH: WHICH IS TO YOUR ADVANTAGE. MR. LEVENSON: I CAN TELL YOU TYDE, THAT IT WAS DONE. WE JUST WAIVED 15% PARKING SPACES ON A 1/4 OF A MILLION SQUARE FEET. MR. RICHARDS: WHAT KIND OF A BUILDING WAS IT ? MR. LEVENSON: A ONE STORY WAREHOUSE. IT WENT DOWN FROM 775 PARKING SPACES TO 360 AND THAT WAS THE MAXIMUM ALLOWANCE. AND THEY STILL WILL NOT USE THE 360 SPACES, BECAUSE WE KNOW, AND WE HAVE BEEN TOLD. WE HAVE SEEN ANOTHER PLACES THAT WORKS EXACTLY THE SAME WAY. I MEAN PEOPLE ARE WORKING IN THIS PLANT AT THIS TIME. MR. RICHARDS: YES, I CAN SHOW LOTS OF OTHER SHOPPING CENTERS THAT WOULD OPERATE THE SAME WAY. U00 MR. LEHIGH: MR. CHAIRMAN, I WOULD LIKE TO MAKE A MOTION. L (16) MR. HIRKALA: FIRST WE HAVE TO CLOSE THE PUBLIC HEARING. MR. LEHIGH: THAT IS MY MOTION. MR. HIRKALA: DOES ANYONE ELSE WANT TO SPEAK ? Fn MR. STENGER: JUST A QUESTION OF PROCEDURE, AFTER SITTING AND LISTENING TO THIS, JUST PROCEDURALLY I JUST WANT TO ASK THE CHAIRMAN, PROCEDURALLY DO YOU HAVE TO VOTE, IT SEEM THAT YOU JUST ASKED THE GENTLEMEN, IT SEEMS LIKE YOU ARE DISPOSED TO TURN IT DOWN WHICH ALSO SEEMS THAT YOU ARE DISPOSED TO ASK FOR MORE INFORMATION. MR. HIRKALA: WELL MY NEXT MOVE, YOU ARE A LITTLE PREMATURE. MY NEXT MOVE IS TO ASK THE APPLICANT TO MAKE A DECISION WHETHER HE WANTS TO GO ON WITH THE VOTE TONIGHT, OR IF HE WANTS TO GO BACK TO THE PLANNING BOARD. WE WILL TABLE THE MATTER UNTIL SUCH TIME THAT THE PLANNING BOARD MAKES A DETERMINATION WHETHER THEY WILL GO AHEAD WITH THE REQUEST THAT HE IS GOING TO MAKE. MR. STENGER: BECAUSE IF YOU DENY HIM, HE HAS TO COME BACK FOR A RE- HEARING. MR. HIRKALA: WHICH YOU KNOW ABOUT. MR. LEVENSON: MR. CHAIRMAN, THAT IS MY RECOMMENDATION THAT THIS CASE BE ADJOURNED UNTIL DECEMBER 18, 1990 MR. HIRKALA: DOES THE BOARD UNDERSTAND WHAT WE ARE TALKING ABOUT ? MR. LEHIGH: I CAN GO ALONG WITH THAT. MR. HIRKALA: EITHER THAT OR WE CAN CLOSE THE PUBLIC HEARING AND GO ON AND TAKE A VOTE, AND YOU CAN TAKE YOUR CHANCES. MR. RICHARDS: I AM NOT GOING TO THROW THE DICE TONIGHT. MR. TOMPKINS: WE CAN MAKE A RECOMMENDATION BACK TO THE PLANNING BOARD. MR. HIRKALA: THE SECTION OF THE ORDINANCE IS 473.6. MR. LEVENSON: SAID HE WOULD FAX A COPY OF THE ORDINANCE TO TYDE RICHARDS. MR. CHAIRMAN, IF IT'S THE PLEASURE OF THE BOARD, I WOULD WRITE A MEMO ON BEHALF OF THE ZBA. RECOMMENDING TO THE PLANNING BOARD THEY DISCUSS SECTION 473.6 AS FAR AS SHOWING THE PARKING ON THE DRAWING, BUT ASKING FOR A REDUCTION OF A PERCENT ON PARKING. MR. LEHIGH: MADE A MOTION TO ADJOURN THE PUBLIC HEARING AT THE REQUEST OF THE APPLICANT. AND THAT MR. LEVENSON SHOULD WRITE THE MEMO. m M MR. TOMPKINS: SECONDED. VOTE: MR. TOMPKINS: MR. HIRKALA: MRS. ROE: MOTION CARRIED. (17) AYE MR. BROOKER: AYE AYE MR. LEHIGH: AYE AYE THE BOARD WISHED MR. RICHARDS GOOD LUCK AND THEY WOULD SEE HIM ON THE 18TH. MR. HIRKALA: NEXT ITEM ON THE AGENDA IS A REQUEST FOR REHEARING ON APPEAL # 1058. RICHARD FAY - REQUEST FOR REHEARING PER LETTER DATED 10-01-90 FROM KENNETH M. STENGER ESQ. IS MR. KENNETH M. STENGER ESQ. PRESENT ? MR. STENGER: PREVIOUSLY NOTED, YES, MR. FAY IS HERE TO. MR. TOMPKINS: IN ORDER TO GRANT A REHEARING WE HAVE TO HAVE A MAJORITY VOTE ? MR. LEVENSON: A UNANIMOUS VOTE. MR. STENGER: UNANIMOUS VOTE, MAJORITY PRESENT. MR. TOMPKINS: SO WE LISTEN TO HIS PRESENTATION AHEAD OF TIME ? MR. LEVENSON: NO,NO,NO, HE WILL TELL YOU IN SHORT WORDS WHAT HE HAS TO PRESENT TO YOU. MR. HIRKALA: HERB, LAWYERS DON'T TALK IN SHORT WORDS. MR. LEVENSON: I WILL GUARANTEE YOU, KNOWING MR. STENGER AS WELL AS I DO THAT HE WILL GIVE YOU A VERY SHORT PRESENTATION, OF WHAT HE HAS TO DO. AND THEN YOU HAVE TO DECIDE WHAT YOU WANT TO DO. MR. STENGER: THE ONLY THING WE ARE HERE TONIGHT IS FOR THIS. TONIGHT THERE HAS TO BE A UNANIMOUS VOTE ON THE MOTION OF SOMEBODY WHO OPPOSED THIS APPLICATION ORIGINALLY, TO CONSIDER WHETHER OR NOT TO HEAR THE REHEARING. WE DON'T HAVE TO MAKE ANY DECISIONS WITH RESPECT TO THE UNDERLYING AREAS. MR. HIRKALA: CAN I ASK A QUESTION, AT OUR MEETING WE HAD AT THE WORK SHOP SECESSION, REGARDING THIS WHOLE THING, AM I MISTAKEN OR WAS I UNDER THE IMPRESSION THAT WE AGREED THAT YOU SHOULD JUST MAKE A NEW APPLICATION, OR MR. STENGER: THAT NIGHT AFTER WE TALKED, I WENT BACK AND RESEARCHED IT, THE ONLY THING THAT CAN HAPPEN HERE IS THAT WE CAN COME BACK IN. WE CAN'T MAKE A NEW APPLICATION, WE HAVE TO COME BACK IN FOR A REHEAR- ING, BECAUSE THE ISSUE HAS ALREADY BEEN BEFORE THE BOARD. WHAT HAPPENS HERE IS THAT INSTEAD OF ME BEING ABLE TO MAKE APPLICATION AFTER APPLICATION, BECAUSE THIS ISSUE HAS ALREADY BEEN HEARD BY THE BOARD, BECAUSE THE ISSUES ARE GOING TO BE THE SAME, EXCEPT FOR THE NEW ISSUES THAT I RAISED AT OUR LAST MEETING. WE HAVE TO HAVE PERMISSION OF THE BOARD A UNANIMOUS FASHION. NOW IF YOU GRANT THE PERMISSION TONIGHT ALL YOU HAVE DONE IS SAY, FINE WE HAVE ACCEPTED YOUR RE - APPLICATION. WE ARE GOING TO RE - ADVERTISE IT, WE WILL HAVE A NEW PUBLIC HEARING, FOR THE RECORD, THEN THAT'S WHEN WE WILL DECIDE. THE ISSUE I RAISED, MR. LEHIGH WAS THERE, MR. HIRKALA, I THINK MR. TOMPKINS, WAS THERE, OR DID I SEE HIM AT ALL SPORTS, I GET CONFUSED SOME TIME. I DON'T KNOW IF MR. BROOKER, WAS THERE, I KNOW THAT MRS. ROE, WAS. MY POINT WAS THAT MY EXAMINATION OF THE MINUTES, OF THE FIRST APPLICATION, THAT WAS REJECTED, REVILED THAT NOBODY GAVE CONSIDERATION TO THE FACT THAT THIS SAME IDENTICAL VARIANCE WAS GRANTED, TO TWO OTHER LAND OWNERS ON THAT ROAD. THAT RESULTED IN ESSENTIALLY 4 LOTS, WHICH RESULTED IN THE PEOPLE LIVING ON THOSE LOTS, WHO SHOWED UP AT THE MEETING TO OBJECT TO MR. FRY'S 2 LOT SUBDIVISION. AND THAT'S A FACT. IT IS NOT MR. FAY'S FAULT, BEING A LAYMAN NOR THE BOARD'S FAULT BEING LAY PEOPLE, THAT THIS WAS NOT GIVEN CONSIDERATION. IT INVOKES A RULE OF LAW WHICH SIMPLY SAYS THAT IF THIS BOARD, NO MATTER WHO IT IS COMPOSED OF HAS RENDERED A DECISION ON IDENTICAL FACTS PREVIOUSLY, IT'S COMPLETELY TO DO SO AGAIN, UNLESS IT CAN DISTINGUISH IT. UNLESS IT CAN SET SOME FACT ON THE RECORD THAT GIVES A REASON, FOR IT NOT OR FOR THAT DISTINGUISHING DECISION. THAT WASN'T ON THE RECORD EITHER, AND I'M CERTAIN IT WASN'T RAISED. NOW THE IDEA OF A QUESTION OF LAW OR FACT, HAS BEEN OVERLOOKED, THROUGH NO ONES FAULT, AT A PREVIOUS HEARING IS MORE THEN SUFFICIENT REASON TO ALLOW THIS BOARD TO GIVE A REHEARING. ONE OF LEGALLY SUFFICIENT REASON. BUT THE ONLY THING THAT MR. FAY IS ASKING YOU TO DO IS GIVE HIM A FAIR SHOT AT PRESENTING HIS WHOLE CASE. HE HAD COME HERE LIKE SO MANY OTHER PEOPLE HAVE DONE, WITHOUT KNOWING WHAT IS EXPECTED OF HIM, AND HE DIDN'T MAKE YOUR JOB ANY EASIER, BECAUSE HE WASN'T ABLE TO SHOW YOU THE FACTS AND THE LAW. AND THIS GENTLEMAN HAD THE SAME PROBLEM TONIGHT. YOU ASKED HIM 3 OR 4 TIMES WHERE YOUR COUNCIL, WHAT HAS YOUR LAWYER HAVE TO SAY ABOUT THIS. I AM ASKING YOU, WHAT THE BOTTOM LINE IS, I AM ASKING YOU TO GIVE RICHARD FAY, A BREAK AND SAY ALL RIGHT MR. FAY HERE'S WHAT WE ARE GOING TO DO. WE WILL GIVE YOU ANOTHER 1/2 HOUR OF OUR TIME. COME IN PREPARED THIS TIME, MAKE YOUR ARGUMENT , WE ARE NOT GOING TO PROMISE YOU HOW IT WILL TURN OUT, BUT WE WILL LISTEN TO YOU. WE ARE HERE TO SERVE THE TOWN ON WAPPINGER, WE ARE HERE TO SERVE ALL THE PEOPLE, APPLICANT AND LAWYERS ALIKE, WE ARE HERE TO TREAT THEM FAIRLY, AND WE HAVE AN EXTRA 1/2 HOUR FOR YOU. THAT'S THE GUT REASON WHY I ASK YOU TO GRANT HIS APPLICATION. THERE IS LEGAL JUSTIFICATION FOR IT, I GAVE EVERYONE COPIES OF THE CASES INVOLVED. ONE CASE I GAVE YOU SPECIFICALLY, SO THAT YOU WOULD KNOW, AND NOT BE CRITICIZED, FOR GRANTING THIS REHEARING, IS THE CASE OF ROSE VS. ZONING BOARD OF THE TOWN OF NEW CASTLE. I DON'T KNOW IF YOU HAVE IT, BUT IT IS HIGHLIGHTED IN MY LETTER. I DON'T KNOW IF YOU GOT COPIES OF ALL THE ENCLOSURES WHEN I SENT THIS OUT. BUT THAT CASE MAKES IT VERY CLEAR THAT IF THE ZONING BOARD HEARS THAT THE FACT WAS OVERLOOKED, A QUESTION OF LAW WAS OVERLOOKED AND WANTS TO HEAR ABOUT IT, AND WANTS TO MAKE A FULLY INFORMED DECISION, IT JUSTIFIED TO GRANT A REHEARING, AND NO ONE CAN FAULT YOU FOR THAT. THE LAW SAYS YOU CAN DO THIS. I HAVE GIVEN YOU THE MAPS AND I DON'T THINK YOU WERE THERE THAT NIGHT I WALKED THROUGH THE MAPS. I DON'T KNOW WHERE THE MAPS ARE I KNOW I SENT THEM IN. DO YOU HAVE THEM MR. LEVENSON ? MR. LEVENSON: WE ARE NOT GOING TO DISCUSS TOE MAPS TONIGHT. MR. STENGER: I KNOW, I JUST WANTED EVERYONE TO KNOW THE NEW FACTS. THE NEW FACTS ARE SAYING THAT THE VARIANCE REQUESTED BY MR. FAY WHICH WAS DENIED, WAS PREVIOUSLY GRANTED TWICE, ON THE SAME KIND OF ROAD, AND THAT WAS THE FACT, THAT WAS NOT MADE CLEAR TO THE BOARD, THE LAST TIME MR. FAY WAS HERE. THE NEW ARGUMENT OF LAW IS, THAT FACT INVOKED A RULE THAT SAYS ANY ADMINISTRATIVE BODY IS BOUND BY IT'S PRESIDENT, UNLESS IT IS ABLE TO DISTINGUISH THE CIRCUMSTANCES BEFORE IT. THAT THE NEW POINT OF LAW MR. TOMPKINS: CAN I ASK A QUESTION ? IF WHAT YOU ARE SAYING IS SO, IF SOMEONE WAS TO GRANTED A VARIANCE THEN THE FACT THAT, THAT VARIANCE WAS GRANTED THROWS OUT THE TOWN LAW THAT REQUIRES A 50 FOOT FRONTAGE ON A ROAD. IS THAT WHAT YOU ARE SAYING ? MR. HIRKALA: HOLD IT, THAT QUESTION LEADS TO THE ISSUE AFTER THE FACT OF THE REHEARING. THE ONLY ISSUE HERE IS TO GRANT HIM A REHEARING. MR. BROOKER: WHAT HAPPENS IF ONE OF US VOTE NO ? MR. LEVENSON: HE LOSES. MR. HIRKALA: ALL THAT WILL HAPPEN IS THAT HE WILL COME BACK AND RE -APPLY. MR. STENGER: I WON'T BE ABLE TO, I CAN'T COME BACK AND RE -APPLY. THE BOARD DISCUSSED THIS. MR. LEVENSON: I THINK THE FACT SHOULD BE STATED, THAT MR. FAY CAME HERE BEAR BACKED BY HIMSELF, AND DIDN'T KNOW WHAT HAD HAPPENED BEFORE, AND NOW MR. STENGER IS ON THE CASE. MR. LEHIGH: I HAVE NO PROBLEM WITH THE REHEARING. m (20) m MR. HIRKALA: I HAVE NO PROBLEM WITH THE REHEARING EITHER. I THINK IN THE INTEREST OF FAIRNESS AND BEING ONE OF THE MEMBERS WHO VOTED AGAINST THIS APPLICATION, I WOULD IN THE INTEREST OF FAIRNESS HAVE NO PROBLEM REHEARING. MR. LEVENSON: STATED SOME FACTS ABOUT REHEARING. MR. LEHIGH: MADE A MOTION THAT MR. FAY BE GRANTED A REHEARING. MRS. ROE: SECONDED. MR. HIRKALA: ANY DISCUSSION ? ALL IN FAVOR. MR. TOMPKINS: ASKED FOR A ROLL CALL VOTE. ROLL CALL MR. TOMPKINS: MR. BROOKER: MR. HIRKALA: CAN I MAKE A STATEMENT ? I WANT TO GO AGAINST PARLIAMENT PROCEDURE FOR A MOMENT. I AM OF THE OPINION AND THIS IS ONLY ONE PERSON, THAT IF HE GETS TURNED DOWN AND GOES TO COURT AND THAT IS WHAT IS GOING TO HAPPEN, HE WILL COME RIGHT BACK HERE AND SAY WE DID IT. MR. BROOKER: I JUST DON'T LIKE TO BE THREATENED. MR. HIRKALA: HE DIDN'T THREATEN US, I SAID HE WOULD GO TO COURT. MR. LEHIGH: THAT IS A LEGAL RECOURSE, IT IS NOT A THREAT. MR. HIRKALA: HE NEVER DID SAY HE WAS GOING TO COURT, I AM THE ONE WHO SAID IF HE WENT TO COURT WE WOULD PROBABLY LOOSE. AND I STILL FEEL IN THE INTEREST OF FAIRNESS IT WOULDN'T HURT US TO LISTEN TO HIM AGAIN. ROLL CALL VOTE MR. LEHIGH: FOR MRS. ROE: FOR MR. HIRKALA: FOR MR. TOMPKINS: FOR MR. BROOKER: FOR MOTION CARRIED. MR. TOMPKINS: MADE A MOTION TO APPROVE THE MINUTES OF 9-25-90. MR. BROOKER: SECONDED. VOTE: MR. HIRKALA: MR. TOMPKINS: MR. BROOKER: MOTION CARRIED. AYE AYE AYE MRS. ROE: AYE MR. LEHIGH: AYE L 2m (21) MR. BROOKER: MADE A MOTION TO ADJOURN. MR. LEHIGH: SECONDED. VOTE: MR. TOMPKINS: AYE MR. BROOKER: AYE MR. LEHIGH: AYE MOTION CARRIED. MEETING WAS ADJOURNED AT 9 P.M. MRS. ROE: AYE MR. HIRKALA: AYE RESPECTFULLY YOURS GAY ANN HARDISTY PLANNING & ZONING SECRETARY m