2003-04-08
ZONING BOARD OF APPEALS
April st\ 2003
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Agenda
Town of Wappinger Zoning Board of Appeals
MEETING DATE: April 8, 2003
TIME: 7:30 PM
Town Hall
20 Middlebush Road
Wappingers Falls, NY
Approve Minutes for March 25, 2003.
Approve Site Minutes for March 29, 2003 -Popow
Public Hearin2s:
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Appeal No. 03-7162
Jere & Christine Popow
-Seeking an area variance of Section 240-37 of District Regulations in an R-20 Zoning
District.
_ Where a side yard setback of 20 feet is reQuired, the applicant is proposing a side yard
setback of 18 feet for the installation of an above 2round 24 foot pool, thus
reQuestin2 a variance of 2 feet.
The property is located on 6 Barbara Drive and is identified as Tax Grid No. 6158-02-
835813 in the Town of Wappinger.
Appeal No. 03-7161
Hettin2er/Fernwood Floral
-Seeking an Interpretation following the determination of the Zoning Administrator,
dated March 7, 2003 regarding Section 240-16 (c) 3 and its applicability to the proposed
use as a florist shop versus its current use as a copy center.
The property is located on 51 Myers Corners Road and is identified as Tax Grid No.
6157-02-899988 in the Town of Wappinger.
Discussions:
Appeal No. 03-7163
Ann Marie Haley
-Seeking an area variance of Section 240-37 of District Regulations in an R-20 Zoning
District.
_ Where a side yard setback of 20 feet is reQuired, the applicant is proposing a side yard
setback of 10 feet for the construction of a two-car 2ara2e and addition, thus
reQUestin2 a variance of 10 feet.
The property is located on 149 Chelsea Road and is identified as Tax Grid No. 6358-01-
103547 in the Town of Wappinger.
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ZONING BOARD OF APPEALS
April 81\ 2003
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Appeal No. 03-7164
William H. Cole
-Seeking an area variance of Section 240-37 of District Regulations in an R-20 Zoning
District.
- Where a side yard setback of 25 feet is required, the applicant is proposing a side yard
setback of 16 feet for the construction of a shed, thus reQuestine a variance of 9 feet.
The property is located on 6 Martin Drive and is identified as Tax Grid No. 6258-02-
951969 in the Town of Wappinger.
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Town of Wappinger
Zoning Board of Appeals
Page 1
Minutes of April 8, 2003
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MINUTES
Town of Wappinger
Zoning Board of Appeals
April 8th, 2003
Summarized Minutes
Town Hall
20 Middlebush Road
Wappinger Falls, NY
Members Present:
Mr. Lehigh,
Mr. diPierno,
Mr. Fanuele,
Mr. Warren,
Chairman
Member
Member
Member
Absent:
Mr. Prager,
Vice-Chairman
Others Present:
Mr. Roberts, Town Attorney
Mrs. Lukianoff, Zoning Administrator
Mrs. Roberti, Secretary
SUMMARY.
Discussion:
J ere Popow
Hettinger/F ernwood
Ann Marie Haley
William H. Cole
Granted Variance of 2 feet.
Adjourned Public Hearing on April 22, 2003.
Public Hearing on April 22, 2003.
Public Hearing on April22, 2003.
Mr. Warren:
Mr. diPierno:
Vote:
Motioned to approve Minutes for March 25, 2003.
Second the motion.
All present voted aye.
Mr. Warren:
Mr. diPierno:
Vote:
Motioned to approve Site Minutes for March 29, 2003.
Second the motion. .
All present voted aye.
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Town of Wappinger
Zoning Board of Appeals
Minutes of April 8, 2003
Appeal No. 03-7162
Jere & Christine Popow
-Seeking an area variance of Section 240-37 of District Regulations in an R-20 Zoning
District.
_ Where a side yard setback of 20 feet is reu uired, the applicant is proposing a side
yard setback of 18 feet for the installation of an above e:round 24 foot pool, thus
reuuestine: a variance of 2 feet.
The property is located on 6 Barbara Drive and is identified as Tax Grid No. 6158-02-
835813 in the Town of Wappinger.
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Present:
Mr. Lehigh:
Mrs. Roberti:
Mrs. Popow:
Mr. diPiemo:
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Mrs. Popow:
Mr. Fanuele:
Mrs. Popow:
Mr. Lehigh:
Mrs. Popow:
Mr. Lehigh:
Mrs. Popow:
Mr. Fanuele:
Mrs. Popow:
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Christine Popow
Are the mailings in order?
Yes.
My name is Christine Popow and I reside at 6 Barbara Drive. We are
putting in a pool in our rear yard and we would like to place it in such a
way not to be near our steps that come down off of our deck.
Is this correct that you have 80 feet from the rear of the yard to the
pool?
Yes. Its very wet and swampy back there.
Is your septic in the front of your house?
Yes.
Let the record show that we did a site visit on this on March 29, 2003.
You could really move this 2 feet.
But we would like to landscape around the pool to make it look
aesthetically pleasing to the eye.
Your not going to put a deck around it?
Not at this time.
Is the fence yours?
I believe so, it came with the house 12 years ago.
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Town of Wappinger
Zoning Board of Appeals
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Mr. Lehigh:
Mr. Fanuele:
Mr. Warren:
Vote:
Mr. Fanuele:
Mr. Warren:
Roll Call:
Mr. Lehigh:
Minutes of April 8, 2003
Does anyone in the audience have any comments? Hearing none.
Motion to close the public hearing.
Second the motion.
All present voted aye.
Motion to grant the variance.
Second the motion.
Mr. Warren: Aye.
Mr. diPierno: Aye.
Mr. Fanuele: Aye.
Mr. Lehigh: Aye.
Your variance has been granted, you can check with Barbara in the
mornmg.
Appeal No. 03-7161
Hettine:er/Fernwood Floral
-Seeking an Interpretation following the determination of the Zoning Administrator,
dated March 7, 2003 regarding Section 240-16 (c) 3 and its applicability to the proposed
use as a florist shop versus its current use as a copy center.
The property is located on 51 Mvers Corners Road and is identified as Tax Grid No.
6157-02-899988 in the Town of Wappinger.
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Present:
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Helen Hettinger
Rocco Trenkler
J on Adams
Richard Canter
Mr. Cantor had a transcriber present to take the minutes for the
Hettinger/Fernwood Floral Interpretation. Mr. Cantor informed the
ZBA that he would have a copy of the transcribed minutes forwarded to
the Town of Wappinger for the board's consideration.
For the record. the public hearinz was ad;ourned to Avril 22.2003.
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Town of Wappinger
Zoning Board of Appeals
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Minutes of April 8, 2003
Appeal No. 03-7163
Ann Marie Haley
-Seeking an area variance of Section 240-37 of District Regulations in an R-20 Zoning
District.
_ Where a side yard setback of 20 feet is req uired, the applicant is proposing a side
yard setback of 10 feet for the construction of a two-car earaee and addition, thus
requestine a variance of 10 feet.
The property is located on 149 Chelsea Road and is identified as Tax Grid No. 6056-04-
550488 in the Town of Wappinger.
Present:
Mr. Haley:
Mr. Lehigh:
Mr. Haley:
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Mr. Fanuele:
Mr. Haley:
Mr. Fanuele:
Mr. Haley:
Mr. Lehigh:
Mr. Haley:
Mr. Lehigh:
Mr. Haley:
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Brian Haley
Brian Haley, 149 Chelsea Road, husband of Ann Marie Haley. We
are looking for a variance for a side yard setback to fit a two car
garage where the existing one car garage is. There is a 100 year old
oak tree on the side of the driveway. The existing patio will become
the stairs in the garage.
So the topography of the lot is dictating this?
Yes.
The patio is going to stay the same?
No, it will become the stairs to the first level.
Will the garage be attachcd to the house?
Yes. May I come up and show you the drawings to the house so you
can get a visual?
Yes, come up. Oh, so this will be the garage now. So you need a 10
foot variance?
Yes. There's also a stream over here.
Alright we will come out Saturday at 9:00 a.m. and we will set your
public hearing for April 22,2003.
Thank you.
Town of Wappinger
Zoning Board of Appeals
Page 5
Minutes of April 8, 2003
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Appeal No. 03-7164
William H. Cole
-Seeking an area variance of Section 240-37 of District Regulations in an R-20 Zoning
District.
_ Where a side yard setback of 25 feet is req uired, the applicant is proposing a side
yard setback of 16 feet for the construction of a shed, thus reQuestiDl! a variance of 9
feet.
The property is located on 6 Martin Drive and is identified as Tax Grid No. 6258-02-
951969 in the Town of Wappinger.
Pesent:
William Cole
Mr. Lehigh:
Are you building this shed'?
Mr. Cole:
No, it's a pre-fab and its sitting there already.
Mr. Lehigh:
Is this the location on your plot plan and how big is the shed?
Mr. Cole:
Yes its there and its 12 X 20 feet. There's no foundation under it
and I placed it there because of my gas lines.
Mr. Warren:
What will you be storing'!
Mr. Cole:
Lawn tractor and other yard tools.
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Mr. Lehigh:
We will do a site visit at 9:30 a.m. on Saturday.
Mr. Cole:
I have stakes with flags so you can see the property line.
Mr. Lehigh:
We will set your public hearing for April 22, 2003.
Mr. Cole:
Thank you very much.
Mr. diPierno: Motion to adjourn.
Mr. Warren: Second the motion.
Vote: All present voted aye.
Meeting ended at 8:45 PM
Respectfully Submitted,
. .1:tddUl- /PIeHl'
~~ra Roberti, Secretary
Secretary - Zoning Board of Appeals
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STATE OF NEW YORK, COUNTY OF DUTCHESS
TOWN OF WAPPINGERS ZONING BOARD OF APPEALS
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In the Matter of:
MINUTES
APPROVED
APR ~. ,'! 2003
HETTINGER/FERNWOOD FLORAL
Seeking Interpretation
Section 240-16(c)-3
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DATED:
April 8, 2003
Town of Wappingers Falls, New York
7:30 p.m.
Patrick M. DeGiorgio, Reporter
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TOWN OF WAPPINGERS ZONING BOARD OF
APPEALS MEETING MINUTES
(HETTINGER/FERNWOOD FLORAL)
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Mary T. Babiarz Court Reporting Service
11 Market St., Poughkeepsie, N.Y. 12601
(845) 471-2511
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APPEARANCES:
Zoninq Board Members:
Alan C. Lehigh, Chairman
Gerald diPierno, Board Member
Douglas Warren, Board Member
Victor L. Fanuele, Board Member
Barbara Roberti, Secretary
TEAHAN & CONSTANTINO
Attorneys for SALVATORE & REGINA PACE
2780 South Road
P.O. Box 1969
Poughkeepsie, New York 12601
BY: RICHARD CANTOR, ESQ.,
of Counsel
CORBALLY, GARTLAND & RAPPLEYEA
Attorneys for HETTINGER/FERNWOOD
FLORAL
35 Market Street
Poughkeepsie, New York 12601
BY: JON H. ADAMS, ESQ.,
of Counsel
Also Present:
ALBERT P. ROBERTS, ESQ.
Town of Wappingers Attorney
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PROCEEDINGS
CHAIRMAN LEHIGH:
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Next item on the agenda, public
hearing, Appeal Number 03-7161.
Hettinger/
Fernwood Floral seeking an interpretation of
the following determination of the Zoning
Administrator, dated March 7th, 2003,
regarding Section 240-16(c)-3 and its
applicability to the proposed use of a
florist shop versus its current use as a
copy center.
The property is located at 51
Myers Corners Road and identified as Tax
Grid Number 6157-02-899988 in the Town of
Wappingers.
Need a motion to open the
public hearing.
MR. FANUELE:
So moved.
MR. WARREN:
Second.
CHAIRMAN LEHIGH:
All in favor?
MR. FANUELE:
Aye.
MR. WARREN:
Aye.
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MR. DIPIERNO:
Aye.
CHAIRMAN LEHIGH:
Mrs. Hettinger, Jon.
MR. ADAMS:
Good evening, Mr. Chairman.
My name
is Jon Adams. I'm speaking on behalf of the
applicant, although the applicant will
supplement my testimony.
Before I start I want to hand the
secretary and to the Board some documents
that I'm going to reference during the
course of my presentation.
I don't have
sets for everybody, but perhaps if some are
shared, I have two sets here I could give to
the Board.
(Documents submitted)
MR. ADAMS:
I've also provided a copy of these
documents to Mr. Cantor who is representing
one of the adjacent property owners.
There's two issues, Mr. Chairman,
before you tonight.
One whether or not a
legal non-conforming use exists which I want
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PROCEEDINGS
to address first and Helen will supplement
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my comments with some history.
And then
whether or not the use that is proposed,
that is to say a florist, constitutes under
the language of your zoning law is to be
prohibited.
The first zoning law as we understand
it in the Town of Wappingers was about 1966.
My objective with some of the documents that
I've submitted to you tonight is to trace a
history of the property.
In 1966 the property was used as a
Normandy Rotisso-Mat.
One of the
documents -- in fact, I might inquire were
any of the members of the Board in the area
in 1966?
MR. FANUELE:
Yes.
MR. ADAMS:
Victor may recall, there was a retail
store for what I'll call barbecue chicken
and barbecue ribs at this location.
That
use continued from 1966 until the early
1970s.
Helen will give you a few more
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details.
PROCEEDINGS
1970 you have a date in the files,
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the operator of that restaurant, Francis
Bisom, B-I-S-O-M, sold the premises --
( interrupted)
MR. CANTOR:
Mr. Chairman, may I be heard just for
one moment?
Is Mr. Adams testifying as a
witness that he knows the information that
he's reciting?
MR. ADAMS:
No, I'm not testifying as a personal
witness.
I'm describing the personal
Mr. Fanuele has already indicated,
history.
I believe, his awareness of that
circumstance.
MR. CANTOR:
I believe, to be accurate for the
record, he indicated he was here in the year
of your question, that's all you asked of
him.
I just wanted to be clear that you're
not testify as a witness based on your
knowledge?
MR. ADAMS:
That's correct.
I'm just giving an
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PROCEEDINGS
outline In the context that the Board could
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consider, nothing more.
1970 as indicated by deed, again in
your package, Mr. Bisom sold the premises to
Robert Hettinger. Mr. Hettinger is the
principal, I believe, in the current
business.
He initially acquired the
property in his individual name.
Then you
have a second deed that's dated July 1975
where Mr. Hettinger transferred the property
to R.B. Hettinger, Inc. which is simply a
corporate entity used by the Hettingers for
ownership and operation of the business at
this site.
Now, at this time I'd ask that you
permit Helen Hettinger to give a brief
description of the history of the parcel as
she knows it during that period of time.
Including a description of a current use of
the premises and current activities.
CHAIRMAN LEHIGH:
First, Helen, would you just state
your name and tell us what you want to do
with the interpretation.
Get that on the
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PROCEEDINGS
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record.
MS. HETTINGER:
I'm Helen Hettinger.
I'm trying to
get an occupancy permit so I can sell it to
Fernwood Florist.
CHAIRMAN LEHIGH:
Okay.
MR. CANTOR:
Mr. Chairman, might I request
procedurally that the witness can be sworn.
CHAIRMAN LEHIGH:
We can do that.
MR. ADAMS:
Can I add that that's not a practice
and this board has established practice and
procedures.
If, in fact, it's the normal
custom and practice I would ask that you not
do it.
CHAIRMAN LEHIGH:
We normally don't do that.
MR. ROBERTS:
This is going to be a contested
proceeding, Jon, and we don/t really have
contested proceedings I so I don/t see why
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PROCEEDINGS
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the witness can't be sworn.
CHAIRMAN LEHIGH:
I'll defer to the town's attorney.
MR. ROBERTS:
Raise your right hand.
000
HELEN HETTINGER, the Applicant herein, after
having been first duly sworn by a Notary
Public of the State of New York, was
examined and testified as follows:
000
CHAIRMAN LEHIGH:
Okay, go ahead.
THE WITNESS:
Where was 17
I'm trying to sell it to
Fernwood Florist. I know that the Normandy
went from the Golding Farm which Mrs. Pace
lives in now.
Mr. Golding sold it to the
Bisoms, I believe in '56, and then Bob and I
bought it as a working restaurant.
Actually
when we bought it we were trying to help his
brother out who had been in the service for
twenty-two years and then his brother took
it for two weeks and decided that he
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PROCEEDINGS
couldn't take people so Bob and I ran H.P.
in Poughkeepsie and Normandy at the same
time.
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MR. ADAMS:
Since then how would you use the
premises?
THE WITNESS:
H.B. Office Products.
We service and
sales of office machines, stationery,
anything to do with the -- the town was one
of my customers at one time.
MR. ADAMS:
Has that activity been continuous --
( interrupted)
MS. HETTINGER:
Yes.
MR. ADAMS:
since the time you purchased the
premises in 1970?
THE WITNESS:
I'd say so.
CHAIRMAN LEHIGH:
I'd like to put in the minutes that we
received a letter from Mr. Cantor to issue a
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PROCEEDINGS
subpoena of your records which we did.
have copies of them.
I haven't looked at
them.
I'd like to get that on the record.
I'd also like to ask you some questions.
your partner here?
MS. HETTINGER:
Yes, sir.
CHAIRMAN LEHIGH:
Sir, state your name?
MR. TRENKLE:
My name is Rocco Trenkle and I'm
president of - - (interrupted)
CHAIRMAN LEHIGH:
What I'd like to do is
(interrupted)
MR. CANTOR:
Mr. Chairman, if he could spell his
name for the stenographer
MR. TRENKLE:
T-R-E-N-K-L-E.
CHAIRMAN LEHIGH:
Rocco is R-O-C-C-O.
Mr. Roberts, could you swear him in
also?
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We
Is
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PROCEEDINGS
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000
ROCCO TRENKLE, the Applicant herein, after
having been first duly sworn by a Notary
Public of the State of New York, was
examined and testified as follows:
000
CHAIRMAN LEHIGH:
I got a couple questions here.
Whether the building's appearance or
structure is going to change when you assume
the business?
MR. TRENKLE:
I haven't really reached that -- I
haven't gotten to that point.
We can't seem
to get to a point whether we can purchase or
not purchase the building, so I haven't even
looked into the details.
Are we moving or
changing the facade?
I'm sure if that
occurs I'll be here before you and I'll be
asking you if we can do so.
CHAIRMAN LEHIGH:
I'm looking at really is there any
major changes that you're going to make in
that building?
In other words, additions on
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it or anything else?
MR. TRENKLE:
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No.
MR. ADAMS:
You are talking about structural
changes?
CHAIRMAN LEHIGH:
Yes.
MR. TRENKLE:
No.
CHAIRMAN LEHIGH:
Will there be an increase in occupants
in the building, clientele more than there
is at this present time?
MR. TRENKLE:
I think we appeared before you one
other time stating that there are people
that come off the street to buy flowers, but
that's very limited.
Most of our sales are
done by phone.
I'd say if we had to
calculate from a percentile basis the phone
business is 90 percent and walk-in trade is
10 and it might not even be that much.
I'd
assume around holidays that might change a
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little bit, there might be a little bit more
activity, yes.
CHAIRMAN LEHIGH:
The prior testimony was for a varlance
and that is not what's in front of us.
The
testimony is on the interpretation tonight.
Anything else that we've heard before is
gone by the boards.
This is a completely
new entity here.
Will the essential
character of the prior uses, is that going
to change? Helen you are in retail now, you
are strictly retail.
MS. HETTINGER:
Retail, right.
CHAIRMAN LEHIGH:
That's going to stay the same?
MR. TRENKLE:
Exactly.
CHAIRMAN LEHIGH:
Is the new use incident to the prior
use or is it an entirely new use? By that I
mean retailwise is what I'm talking about.
MR. TRENKLE:
I would say they are pretty
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simultaneous in what she does.
CHAIRMAN LEHIGH:
Similar?
MR. TRENKLE:
We make sales and we make deliveries.
CHAIRMAN LEHIGH:
That's all I've got. Anybody else
have any questions?
MR. DIPIERNO:
No.
MR. FANUELE:
No.
MR. WARREN:
No.
CHAIRMAN LEHIGH:
All right.
Have you anything else you
would like to add?
MR. ADAMS:
Yes, Mr. Chairman.
First I'd like to
draw the Board's attention to another letter
I submitted which is a letter of the
building inspector dated April 7th, 1992.
I
think it's in the package I gave you which
he offers the opinion as this building in
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PROCEEDINGS
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1992 was a legal non-conforming use.
I
offer that for the record.
I also offer for
the record, and Richard 1'11 get you a copy,
1'11 give this to Barbara, this is the
assessor's card showing the ownership of the
property to corroborate the documents that
exist.
Now, the second issue, there's two
issues.
One issue is, of course, whether
the valid use exists.
The second issue can
this use be accomplished under the standards
of your zoning laws as it relates to
non-conforming uses?
Our answer is yes.
There's a legal reason and 1'11 make a legal
argument why it's my belief from a legal
perspective that the uses outlined by the
speakers may be occasioned without violating
the Section 210-16 of the zoning law.
The question that/s necessarily
invited by this application is what is a use
and is that use being changed?
The first
question invited is was the use for the
purposes of this section?
The answer is
simple.
You use your own zoning ordinance
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for purposes of understanding what is
permitted.
Your zoning ordinance has under its
scheduled uses what I!m going to call
17
classes of uses.
One of those classes of
uses is retail use.
She has testified that
the use is a retail use.
He!s testified
that the proposed new use is a retail use.
That!s why it!s my contention you have to
look for your zoning ordinances! look at
what are the permitted uses! unlike zoning
ordinances in other towns you don!t say
bakeries! canned goods! dog kennels!
whatever! you don!t have specific uses In
your zoning law.
I!ll use a generic term!
retail uses.
It!s my contention that once
you use that term in the scheduled uses the
term also has to be used in this construing
this particular position.
straightforward language.
It!s fairly
It!s our
contention you have to use your own language
to construe Section 210-16 which addresses
the standards for change of use or
non-conforming uses.
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I have no other comments.
Is there
anything else you would like to saYI Helen?
MS. HETTINGER:
Not at this time.
CHAIRMAN LEHIGH:
I would like to state that with the
subpoena we did receive a copy of your
federal income taxI telephone billl state
sales tax and corporate insurance. There
were some other bills and so forth that were
too numerous for this Board to go over.
I I d
also like to show in the minutes that you
mailed out four cards and received back only
two green cards.
MS. HETTINGER:
Correct.
MR. ROBERTS:
Could you identify theml Mr. Chairman?
CHAIRMAN LEHIGH:
We received one back from Mrs. Pace.
MR. ROBERTS:
Why don/t you identify who they were
mailed to and those that you received the
returns.
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CHAIRMAN LEHIGH:
19
Mr. and Mrs. Pace.
MR. ROBERTS:
Address?
CHAIRMAN LEHIGH:
We received that back.
This one was
mailed to RJS Holding and we don't have that
one.
This one was
I can't read it, Mr.
and Mrs. Camacho.
Is that one we received
back?
I can't read that very well either.
MS. HETTINGER:
Mr. and Mrs. Camacho did not return
any of the gentleman, JM -- the holding one.
The only one that answered was the Town of
Wappingers and Mrs. Pace.
CHAIRMAN LEHIGH:
All right.
The record agrees with
that.
MR. ADAMS:
Do the records also reflect the date
of mailing so we can ascertain that they
were timely mailed?
CHAIRMAN LEHIGH:
It was mailed 3/27/03.
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MR. ROBERTS:
Which one?
CHAIRMAN LEHIGH:
They are all marked the same.
MR. ROBERTS:
All right.
MS. HETTINGER:
All at the same time.
CHAIRMAN LEHIGH:
All the same dater 3/27/03r this year.
MR. ROBERTS:
Do you have an Affidavit of
publication of the legal notices?
CHAIRMAN LEHIGH:
Yesr I do.
Right there (indicating).
MR. ROBERTS:
Date of that?
CHAIRMAN LEHIGH:
The date of that?
MR. ROBERTS:
Yesr date of publication.
CHAIRMAN LEHIGH:
Date of publication 4/2/03r Southern
Dutchess News on 4/2/03. Any questions?
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Gentlemen?
MR. DIPIERNO:
No.
MR. FANUELE:
No.
MR. WARREN:
No.
MS. CAMACHO:
I am present, Mrs. Deborah Camacho.
CHAIRMAN LEHIGH:
I'll open it up ln a minute and you
can speak.
You can take your seat and we
will hear from Mr. Cantor.
MR. CANTOR:
If Mrs. Camacho would like to go as a
courtesy, she is welcome to go first.
CHAIRMAN LEHIGH:
Mrs. Camacho.
Mr. Cantor is allowing
you to go ahead of him.
MS. CAMACHO:
Thank you.
CHAIRMAN LEHIGH:
Do I have to be sworn?
Yes.
Mr. Roberts will swear you in.
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DEBORAH CAMACHO, after having been first
duly sworn by a Notary Public of the State
of New York, was examined and testified as
follows:
22
000
MS. CAMACHO:
My name is Deborah Camacho.
I live at
49 Myers Corners Road.
What I want to know,
if this property is zoned residential, then
what's the problem? Why are they going
ahead with commercial, zoning it as
commercial property?
I'm confused.
CHAIRMAN LEHIGH:
We are not zoning it as commercial
It is already commercial
property.
property.
MS. CAMACHO:
No.
I was told it was zoned
residential.
CHAIRMAN LEHIGH:
The zone its in is residential, yes.
The zone it's in.
It's non-conforming.
MR. ROBERTS:
If you have comments about that,
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23
you're asking questions, they are here to
listen to your comments, not necessarily
give answers.
MS. CAMACHO:
Thank you.
MR. ROBERTS:
Any other comments before you leave?
MS. CAMACHO:
I do have a comment and a complaint
about the owner of H.B. properties.
I've
tried to be neighborly with her and I have
complained on two occasions about
motorcycles that actually are back there
during the spring and summer months doing
work with their motorcycles.
They have no
concern about the people who live in the
area.
They will stand right in front of my
property and rev up their motorcycles and I
have told them to stop.
it.
I've told her about
CHAIRMAN LEHIGH:
Can I suggest that it might not be
Mrs. Hettinger. I can't quite see her on a
motorcycle.
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MS. CAMACHO:
It's not Mrs. Hettinger, but she says
she knows who they are and they were given
permission to use the property behind her
and I've gotten faxes from the sheriff's
department about that because I've made
three complaints.
CHAIRMAN LEHIGH:
Well, you're complaining to the right
place.
MS. CAMACHO:
But they are not doing anything about
it.
They claim since she is the owner and
they have permission that they can be there.
CHAIRMAN LEHIGH:
I'd have to ask her that.
I don't
have any knowledge of that at all.
We
aren't really here to take that into
consideration.
MS. CAMACHO:
Okay. My complaint is that if there
are -- if they are going to have a
florist right now there's a lot of junk
behind her, a lot of junk that is sitting
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25
behind the property.
I have taken pictures
of that and I'm not ashamed to say it, but I
don't think that since this is zoned
residential, why should we as owners of
homes that are all around her have to put up
with that?
CHAIRMAN LEHIGH:
I really don't know how to answer that
because I'm not in the business of taking
complaints and handling those.
Do you
understand what I mean?
I don't know
whether it was on Hettinger's property or
not.
Sir, if you have a problem you can get
up here and state your name.
Otherwise, if
you quit your signals back there I'd
appreciate it or just leave.
MS. CAMACHO:
Then also my concern is that if we are
going to have a florist I don't want a lot
of traffic there, going in and out and
also - - (interrupted)
CHAIRMAN LEHIGH:
That's a valid comment on this case.
MS. CAMACHO:
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And also all the dumping.
26
Since I've
lived there, only two years, I've had car
accidents because of the road and all the
traffic that there is already two people
have come into my property with their cars,
accidents.
We have two trees down and
something just happened yesterday and there
are cars also in the evening that stay
there. I don't know what they are doing
therel but I call the sheriff/s departmentl
they come and they have them removed.
has happened a lot.
CHAIRMAN LEHIGH:
Anything else?
MS. CAMACHO:
This
No.
Those are my concerns because I
do live in a residential area and my intent
was to move from the city to a place where I
could raise my son and not have to worry
about whose hanging out in the back of the
property when they have nothing to do with
the company itself.
CHAIRMAN LEHIGH:
Thank you.
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27
MS. CAMACHO:
You're welcome.
CHAIRMAN LEHIGH:
Mr. Cantor.
MR. CANTOR:
Good evening.
For the record, I'm
Richard Cantor with the firm Teahan &
Constantino.
I represent Regina and
Salvatore Pace who are the immediate next
door neighbors.
witness?
May I ask questions of the
CHAIRMAN LEHIGH:
Normally you direct them up here.
That's normally the way we handle it.
MR. CANTOR:
She has been subpoenaed to be here and
there is information I would like to elicit
which hasn't been asked.
I believe that
it's appropriate to be allowed to question
the witness.
CHAIRMAN LEHIGH:
Okay.
MR. CANTOR:
May the record reflect Mrs. Hettinger
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28
remains under oath.
CHAIRMAN LEHIGH:
Yes.
CROSS-EXAMINATION BY MR. CANTOR:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Did I understand you to say that your
husband initially purchased this property in
1970?
My husband and myself -- my ex-husband.
Robert B. Hettinger?
Yes.
Do I understand you to say that at the time
you purchased the property the property was
a store that sold barbecue chicken?
As it is, yes.
When you purchased the property did you
continue that use?
Yes, sir.
For how long did you continue that use?
About a year, year and a half because we had
H.P. in poughkeepsie.
We ran the Normandy
too with three small kids.
After that year, year and a half, what use
did you put the property to?
To H.P.
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PROCEEDINGS
Office product business?
Yes.
When you put the property to the office
products business did you obtain any
approval from the Town of Wappingers for
changing the use from chicken store to --
( interrupted)
Yes.
-- an office use?
29
Yes.
What form of approval did you receive?
We were approved.
By whom were you approved?
Whoever we went in front of.
Probably the
same thing I've been doing for the last
seven years.
Do you have with you any evidence of such an
approval?
I don't think I would have been in business
for thirty-five years if I didn't get
approval.
I don't know about that.
( interrupted)
Do I have it on me? No.
The question is
I've given you
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PROCEEDINGS
30
records to prove I've been in business and
having for thirty-five years.
It would be
easier for you to prove I've not been In
business for thirty-five years.
MR. ADAMS:
Answer the question.
THE WITNESS:
I've answered it.
Do you have evidence at home or in your
office of your approval that you received?
You mean when we went into business in 1970?
When you changed -- you said that you
changed the use from a store that sold
chicken to an office sales and service
function?
That's correct.
My question was did you receive approval
from the town for that change?
Yes.
You said yes?
Yes.
I'm asking you whether you have?
Not in my back packet.
Do you have it in your home or in your
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PROCEEDINGS
31
office?
Of course.
Mr. Cantor! I wouldn't be in the
store.
MR. ADAMS:
Helen! answer the question.
simple.
Yes.
Make it
MR. CANTOR:
I would ask that after or otherwise
done this evening that this hearing be
continued and Mrs. Hettinger be asked to
produce that approval under the terms of the
subpoena that you issued she was asked.
That approval was within the scope of the
subpoena and we are entitled to see what
approval she claims that she received from
the Town of Wappingers for changing the use
as described.
Am I correct! Mrs. Hettinger! that the H.B.
use was both a sales and service business?
That!s right.
And is it correct that at some point in time
you rented a portion of the building to a
copy business?
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PROCEEDINGS
To help Nick out.
32
Excuse me?
To help the gentleman out.
Was it correct that business was service
copying machines?
Yes.
Office machines.
Office machines?
Same as myself.
When did that business come into the
building approximately?
About eight years ago.
And is it still there?
No.
When did it leave approximately?
Approximately they needed more space and
they moved up to Hark Plaza and that's about
six months ago.
So for approximately seven and a half years
a portion of the building was used by a
company that serviced office equipment?
Same as us, yes.
MR. CANTOR:
Thank you.
Might I add one thing?
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MR. ADAMS:
No.
MR. CANTOR:
That's up to the Board.
CHAIRMAN LEHIGH:
I don't think we need to hear anymore.
MR. CANTOR:
I'm handing up the original to Miss
Roberti and copies for the members of the
written concerns of the matter before you.
I'd like to note for the record and I
apologize of the four exhibits, the exhibits
marked Band C regrettably are inverted so
that the one marked B is really C and the
one marked C is really B.
that confusion.
I apologize for
MR. ADAMS:
Exhibits Band C are transposed?
MR. CANTOR:
Right.
The one marked B should really
be marked C and vice versa.
I would like to be heard in opposition
to this application.
The first ground of
opposition is that this application should
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be denied because these applicants do not
34
have standing to make this application.
The
applicants on the application are identified
as H.B. Office Products/Fernwood Floral
Gardens.
Neither of these applicants are
the owner the property.
The owner of the
property as Mr. Adams indicated in the deeds
he gave to you and a copy of that deed is
also annexed to this letter is a corporation
known as R.B. Hettinger, Inc. and based on
the materials in the town's records, the
president of that corporation is Robert
Hettinger.
That's the one marked Exhibit C
although it should be properly marked B.
You have nothing before you from the
owner of the property authorizing this
application, so the first ground of
objection is that this application is
without standing.
As a second ground of opposition,
there is a provision in your zoning code and
I refer to that starting in the lower half
of the second page of the letter, Section
240-16, which requires that during the first
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one year following the effective date of
this zoning law on which of the zoning law
the owners of the property in which there is
a nonresidential non-conforming use are
required to make a filing with the zoning
administrator containing a statement of such
non-conforming use.
lIve previously
obtained copies of materials in the town/s
file and there is no such filing that was
made.
This sectionl if you turn to page 3
of the letter I same section then goes onto
say if the non-conforming -- if the owner of
the non-conforming use shall not so register
itl such use shall be presumed to have been
discontinued unless the owner submits proof
that the use existed legally prior to the
effective date of the regulation that made
it non-conforming.
There is right here as we stand a
presumption created by your zoning code that
this use terminated without regard to what
Mrs. Hettinger did or didn/t do on the
property by reason of the failure to make
that filing within one year.
In factI it
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hasn't been made at all.
And you do not
have any proof before you that the use --
that she is describing, her office sales and
services or any other non-conforming use
existed legally prior to the effective date
of the regulation that made it
non-conforming.
The regulation that made it
non-conforming was the adoption of
residential zoning for this property.
CHAIRMAN LEHIGH:
Which is 63.
MR. CANTOR:
So by your own zoning code you're
compelled to conclude based on this
presumption that this use has discontinued
in the absence of proof that satisfies this
section.
Finally, I wish to address the issue
of the actual use.
Mr. Chairman, you stated
when you were speaking with Mrs. Hettinger
something to the effect that you are retail.
Well, that's not correct.
Mrs. Hettinger's
statement was that her business was retail
and service.
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The exhibit marked Exhibit B that
should be marked Exhibit C is a piece of
your determination on the variance
application that was previously decided, and
in there the Board states the most recent
use of the property is both a retail sales
and service use and you also say in that
decision that service use includes a copy
37
center.
So it's not correct as you stated,
Mr. Chairman, to say you're retail; right?
The use is a combination, assuming it
exists, is a combination of retail use and
service use and the tenant in the building
for seven and a half years serviced office
machines, just service use.
Well, a florist
who sells flowers, presumably delivers
flowers, isntt a service business.
It
doesntt service office equipment and it
doesntt sell or service stationery or other
office supplies as Mrs. Hettinger testified
is the business of H.B. Office Products.
Mr. Adamst I believe, is correct in
reciting the prohibition under your lawt
that is that a non-conforming use can be
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changed only to a conforming use and that
there is a prohibition against changing a
non-conforming use to another non-conforming
38
use.
I take issue, however, with Mr. Adams
when he states that a florist which is a
retail use is the same as a use which
services office equipment and the use which
sells and services stationery and office
products.
I think that Mr. Adams' statement
to you is directly contrary to the case law
which we cite in this letter which states
11 in the absence of an ordinance to the
contrary, a property owner has no right to
substitute a new non-conforming use for an
existing non-conforming use despite the
generic similarity of the uses."
So that
even if you would say retail, retail, they
are generically similar, the cases say
that's not enough to change a non-conforming
use, that generic similarity is not enough,
and secondly as has been established by your
own prior decision and by the testimony, the
Hettinger -- the use of the R.B. Hettinger
property is a use, if it continues, that is
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PROCEEDINGS 39
a combination on the H.B. Office side of
retail and service and on the copy side
purely service.
That is not the same as a
florist. Itrs not the same as retail to
retail. Even if it were the same as retail
to retail under the casesr thatrs not
enough.
So pick anyone of those reasons
and this is a proposed change from one
non-conforming user assuming it is a
non-conforming user to a different
non-conforming use and that is prohibited
under your code.
The cases that we citer and maybe I
can stater and this is true for the Town of
Wappingers as wellr that courts and
municipal legislators have adoptedr and this
is a quoter "a grudging tolerance of
non-conforming uses."
Non-conforming uses
the courts held are generally viewed as
detrimental to a zoning scheme and they also
noted that the overriding public policy of
zoning in New York State is aimed at the
reasonable restriction of these uses and the
eventual elimination of these uses.
He re' we
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have heard that we went from a chicken store
to retail and service.
Again I ask this to
be continued for this claim proof of
approval, because I've pulled the minutes of
the town when we were hearing the variance
and there is no such approval in the town
files.
We have gone from chicken store to
office service and retail and now we are
proposing to go to florist in a situation
where your code prohibits a change in which
the clear case law is that these uses are
given only grudging tolerance and that the
clear public policy is to both restrict them
and eventually eliminate them.
So I would ask that this application
be denied for lack of standing.
I would ask
that it be denied based on the zoning code
presumption that had been discontinued and
I'd ask that it be denied on the ground that
it isn't the same use, that a florist is a
different use than an office equipment
service business and a retail service and
service office business such as R.B.
Hettinger.
I'd also ask that Mrs. Hettinger
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be asked to bring in the proof that she
asserts that she has in her possession that
shows that her use was permitted for H.B.
Hettinger, because if it wasn't permitted
then that's another ground on which there is
no non-conforming use.
If she changed
chicken business to office business without
approval, office business, even if she has
done it for thirty years, is an unlawful use
and not a non-conforming use that had the
town's approval.
Again, there's no
indication in the town's files of any such
approval for such a switch in use.
If she
says she has it, we are entitled to see it.
Finally, the last point which is not
in the letter.
If you were to issue the
interpretation requested, the change to a
florist business under the Wappingers Zoning
Code would trigger a need for site plan
approval.
Because it would trigger that
need, this request for an interpretation is
only a piece of the word action,
A-C-T-I-O-N, for environmental review
purposes, and because it's only a piece of
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the action, before you can validly act you
require an Environmental Assessment Form and
a hard look.
Even though it's correct an
interpretation alone would not require an
environmental review.
This isn't an
interpretation alone, this is the first half
of what would be, if you granted it, a two-
piece application and under SEQRA
terminology, under SEQRA terminology it's
one action and this one action needs
environmental review.
So for all or any of
those reasons I would request that this
application be denied.
Before the meeting began the
stenographer indicated that the normal turn
around time for the transcript is
approximately two weeks.
I raised the
question, Mr. Chairman, as to what
I
indicated that we would supply a copy to the
of the transcript to the Board and I'd be
pleased to provide a courtesy copy to Mr.
Adams.
I raise the question whether you
wanted that transcript before you were to
make a decision, and if that were the case,
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PROCEEDINGS
43
whether the two week turn around time
suffices.
Just as a procedural and courtesy
matter I raise that question. Perhaps Mr.
Roberts might be of help in letting you know
whether in his opinion it would be helpful
to have that transcript before you make any
decisions and if so whether the approximate
two-week turn around time is adequate.
Thank you.
CHAIRMAN LEHIGH:
Thank you.
I'm going to take a five-
minute recess.
MR. ADAMS:
I'd like to make a brief rebuttal.
CHAIRMAN LEHIGH:
I'd rather have your rebuttal first.
MR. ADAMS:
For housekeeping purposes of standing,
I'd ask Mrs. Hettinger to come up.
She is
still under oath.
I believe this
application -- I didn't prepare the
application, but the application should be
in the corporate name.
If it's not in the
corporate name I'd asked that it be amended
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for that purpose and ask whether or not she
is a corporate officer of R.B. Hettinger
Inc.
CHAIRMAN LEHIGH:
It doesn't say that, it's H.B. office.
MS. HETTINGER:
Vice-president and secretary of H.B.
MR. ADAMS:
Thank you.
Addressing the second
issue in terms of the registration, Mr.
Cantor indicated and correctly so -- it only
creates a presumption.
We believe we
rebutted that presumption.
Presumption is
not conclusive.
It simply creates something
that unless they find it stands on its own.
Mrs. Hettinger has testified, she has
admitted a wealth of information to you and
I believe the Board has sufficient
information if they want to consider that in
rebuttal.
I don't believe registration is
an appropriate argument although I
understand the argument.
On the SEQRA issue, this is an action
and the language of those regulations, if,
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PROCEEDINGS
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In fact, I would argue she would not concede
she needs -- I'm sorry, the new occupant
would need site plan approval, but if, in
fact, that was the circumstance that an
environmental review would take place at the
time that the application is made.
There
are two different types of environmental
review.
There's coordinated and
uncoordinated.
This is an unlisted action.
There's no mandatory coordination. I
believe it's my belief the Board can go with
an interpretation without an environmental
review before making a determination.
On the issue of retail sales, you have
testimony in that and I'll defer to the
Board's interpretation of law with respect
to that.
CHAIRMAN LEHIGH:
Let me ask, does anybody else in the
audience wish to speak?
I'm going to take a
five-minute break with some legal questions
for our attorney and we will come back.
(SHORT RECESS TAKEN)
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CHAIRMAN LEHIGH:
We are back.
What I'd like to do is
adjourn this for two weeks to go over all
the material that Mr. Cantor submitted, that
Mr. Adams submitted and I'd like to look at
the steno minutes and I would like to --
( interrupted)
MR. ROBERTS:
Can I clarify that.
I thought we were
going to adjourn the public hearing for two
weeks and hope that the transcript could
come in on the two-week date, whatever date
that would be.
CHAIRMAN LEHIGH:
That's what Mr. Cantor was talking
about.
Turn around time is two weeks.
MR. CANTOR:
You're looking to have the transcript
by the adjourned date and delivered?
MR. ROBERTS:
And delivered that night.
MR. CANTOR:
The stenographer says yes.
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CHAIRMAN LEHIGH:
I'd like to ask Mrs. Hettinger if she
would give us some proof that the business
was changed to the town in 1970, I believe,
from chicken to Hettinger, Inc.
MS. HETTINGER:
47
Yeah, it was before the Zoning Board,
Mr. Lehigh.
CHAIRMAN LEHIGH:
If you could give us whatever proof
you have on that and we will reconvene this
on the 22nd and we will go from there.
MR. CANTOR:
That would be at 7:30 again, Mr.
Lehigh?
CHAIRMAN LEHIGH:
Yes, that's the regular meeting date,
the 22nd, I believe.
I need a motion to
adjourn this to the 22nd.
MR. DIPIERNO:
So moved.
CHAIRMAN LEHIGH:
Second?
MR. WARREN:
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Second.
CHAIRMAN LEHIGH:
All in favor?
MR. FANUELE:
Aye.
MR. WARREN:
Aye.
MR. DIPIERNO:
Aye.
CHAIRMAN LEHIGH:
We will see you again on the 22nd.
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49
STATE OF NEW YORK
ss:
COUNTY OF ORANGE
II PATRICK M. DeGIORGIOI a Shorthand
Reporter and Notary Public within and for
the State of New Yorkl do hereby certify
that the foregoing is a true and accurate
record of the minutes having been
stenographically recorded by me and
transcribed under my supervision to the best
of my knowledge and belief.
x
f~~
PATRICK M. DeGIORGIO
Dated: April 211 2003