2000-11-20
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MINUTES
APP~OVEO
DE.e 12 2000
MINUTES
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Town of Wappinger Zoning Board of Appeals
November 28, 2000
Summarized Minutes
Town Hall
20 Middlebush Road
Wappingers Falls, NY
Members Present
Mr. Lehigh: Chairman
Mr. Fanue1e: Member
Mr. Warren: Member
Mr. diPiemo: Member
Absent:
Mr. Prager, Mernber
Others Present
Mrs. Gale, Secretary to the Zoning Board of Appeals
Mrs. Lukianoff, Zoning Administrator
SUMMARIZED
......... Minutes to be approved:
October 17, 2000
October 24, 2000
November 14,2000
-- Need copies
-- Need copies
-- Need copies
Discussions:
Mr. Jeffrey Tomlins
R. B. Hettinger, Inc.
Kevin M. Davis & Eileen P. Lithco - Not in attendance
Dr. Kuptez
MINUTES
Mr. Lehigh _ could not approve minutes on agenda - needed to provide copies of same to
all board members.
Mr. Lehigh: Called Mr. Tornlins
Mr. Tomlins: Here
Mr. Lehigh: You are requesting an area variance to have a shed remain where it is - on property located on 29
Beachwood Dr., in the Town ofWappingers - Tax Grid. No. 6157-04-729488. You need an area variance for
this shed.
Mr. Tomlins: Yes, I do
~ Mr. Lehigh: Asked is this an existing shed?
Mr. Tomlins: Yes - it is a cedar shed
Mr. Lehigh: Asked - you were cited by the Building Inspector
Mr. Tomlins: Yes - it's about 6 feet from the next door neighbor's property
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Town of Wappinger Zoning Board of Appeals
Summarized Minutes - November 28, 2000
Page 2
,....., Mr. Lehigh: Asked Mr. Tomlins, ifhe knew where the shed is supposed to be located?, now you do, it's got to
be moved.
Mr. Tomlins: Described the shed - it's a cedar shed 10' x 16', stated there are footings on pylons.
Mr. Lehigh: Are the pylons driven into the ground?
Mr. Tomlins: There are footings and pylons.
Mr. Lehigh: Kind of makes it permanent - it's not supposed to be permanent.
Mr. Fanuele: How long has the shed been installed?
Mr. Tomlins: Stated he thinks it's a couple of months.
Mr. Lehigh: It's been there just two months?
Mr. Tomlins: I forget - I have to check with the installer.
He came out in October
Mr. Lehigh: How long had it been there before the Building Inspector came?
~ Mr. Tomlins: They had to come back?
Mr. Lehigh: Who built the shed?
Mr. Tomlins: Sheds USA
Mr. Fenuele: Did they tell you - you needed a permit? - they never mentioned you need a building permit?,
the guys who installed it?
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Mr. Fenuele: Problems with the installers? - so you knew where it was supposed to go, and then you decided to
put it in a different spot.
Mr. Tomlins: I wasn't there when they installed it
Mr. Fenuele: You had a problem with the installer?
Mr. Tomlins: Ifthey ask for a variance - it's a nice looking shed - my one neighbor has a collapsed shed that
right next to where I put this - there's nothing but woods on the other side. - it's collapsed and rotting.
Mr. Lehigh: We don't make the law - we don't know where his is - but if it's like yours he'll be cited just like
you've been cited.
......... Mr. Fenuele: Let have the Board do a Site Inspection.
Mr. Lehigh: Site Inspection is scheduled for Saturday, December 2, 2000 at 9:30AM
Town of Wappinger Zoning Board of Appeals
Summarized Minutes - November 28,2000
Page 3
..... Mr. Lehigh: Next Item - R. H. Hettinger seeking variance on property located at 51 Myers Comers Rd.
property is identified as Tax Grid No. 6157-02-899988 in the Town of Wappinger.
Mr. John Adams identified himself - Attorney for applicant. - He asked to submit to Board a Tax Map,
also shows location of parcels relative to other parcels in neighborhood respectful to lot in question.
Mr. Adams: This property has been a commercial property for 40 or 50 years, it was a restaurant.
Indicates client is seeking a Use Variance - was used as a Retail & Service Store for Office Supplies, and
repairs on office machines. Client is seeking a Use Variance to permit on this parcel, commercial and
professional offices - He also stated with the changes in the area with Super Stores such as Staples, and
Office Depot, there is no market for this type of use in the present area.
Mr. Adams also stated it has been determined from a local Realtor it is not possible to get a equitable
return for use in this district. No one would want to build a single family house on this lot. Also, the
size of the lit is very small and shape.
Mr. Lehigh: What size is it?
Mr. Adams: Less than a quarter of an acre.
Tatiana Lukianoff: It is .26 acres.
.........
Mr. Adams: Incidentally, Helen Hettinger is principle - she is in the audience to answer questions.
Mr. Adams~He size is deceptive as well as the shape of the lot - only 50' in rear. Indicated commercial
artery. The area is a mixed area too close to Rt. 9 for a residence and the size and shape of parcel are
impractical for a residential use.
Mr. Fanuele: Do you want to put in offices?
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Mr. Adams: Yes - offices
Mr. Lehigh: Do you have somebody in mind?
Mr. Adams: We can't really market his property - buyer can't get use variance - variance has to be
granted _ change use and have site plans approval. Need to have a parcel that is permissible use only
viable use is small professional office, such as insurance office, attorney's office, accountant's, not
major operations - lot is too small.
Mr. Fenuele: Professional office - commercial offices.
Mr. Adams: They are inter-changeable - commercial office
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Mr. Lehigh: Right of Way-they use part of that don't they.
Mr. Adams: That's being used for access - that's a roadway.
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Summarized Minutes - November 28, 2000
Page 4
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Mr. Lehigh: That Right of Way goes t!u"ough property behind it?
Mr. Adams: No - there's no Right of Way - they are actually separate parcels.
Mr. Lehigh: Looking at map - indicates Right of Way
Mr. Adams: Look at map - may be in the description - will look into that.
if there is any additional information will supplement application.
Mr. Lehigh: We have to look at the site - schedule a Site Inspection
Mr. Adams: Would you like to schedule a Site Inspection?
Mr. Lehigh: Schedule a Site Inspection for Saturday, December 2, 2000
Mr. Adams: Mrs. Hettinger will be available on Saturday
Mr. Lehigh: All parking is the same? shows 15 spaces on map.
Mrs. Hettinger: Nothing has changed - same place for 30 years.
Mr. Lehigh: Scheduled 10:00AM - Saturday, Dec. 2, 2000 - Inspection.
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Introduction: Mr. Richard Cantor - Attorney for next door neighbor the Pace Family,
Mr. Cantor: We would like to have a representative at the Site Visit - as that is technically a meeting
scheduled. Asked if Board has scheduled a Public Hearing. Public Hearing scheduled for Dec. 12,2000
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Town of Wappinger Zoning Board of Appeals
Summarized Minutes - November 28, 2000
Page 5
Mr. Lehigh: Next Item - Kevin Davis? - Eileen Lithco?
Mr. Lehigh: Not here? We'll come back to that.
Mr. Lehigh: Dr. Kupetz
Introduction: Dr. Kupetz - stated he purchased property formally a Medical Office - approved in
1987.
Dr. Kupetz: Originally a medical office - permit expired - what can be done?
Mr. Lehigh: Get Use Permit - very difficult to do - you owned the property in 1987?
Dr. Kupetz: No, I didn't.
Mr. Lehigh: You bought from (????)
Dr. Kupetz: No - bought from another individual about a year back.
Mr. Lehigh: Did you buy with knowledge that it could be built on?
Dr. Kupetz: Build anything?
Mr. Lehigh: No - Medical Office building
Dr. Kupetz: Bought to see what could be done with it - that's why I'm here - it was previously approved
_ is there any possibility - existing plans - practice dentistry thought single use office use would be ok.
Mr. Lehigh: Unnecessary hardship it says.." The applicant cannot realize a reasonable return - request
variance - un-necessary hardship cannot be granted
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Dr. Kupetz: Have to show hardship?
Mr. Lehigh: You have to show un-necessary hardship is not self created - you purchased it. Cannot
build.
Dr. Kupetz: I knew the plans had expired - didn't know
Mr. Lehigh: Even applicant doesn't have knowledge - if you went to the Zoning Administrator they
would have said No. - exercise reasonable diligence.
Discussion of the history of this property continued.
Go to the Town Board and get re-zoning.
Michelle D. Gale
Secretary, Zoning Board of Appeals
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TOWN OF WAPPINGERS
ZONING BOARD OF APPEALS
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MINUTES OF PROCEEDINGS RE:
Appeal No. 00-7062
Cellular One Proposal
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November 21, 2000
7:31 p.m.
Wappingers Town Hall
20 Middlebush Road
Wappingers Falls, New York
Board Members:
ALAN LEHIGH, Chairman
DOUGLAS WARREN
J. HOWARD PRAGER
VICTOR FANUELE
ALBERT ROBERTS, Town Attorney
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REPORTED BY:
Melissa B. Anker
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SCHMIEDER & ASSOCIATES
Professional Shorthand Reporters
82 Washington Street, poughkeepsie, New York
(845) 452-1988
SCHMIEDER & ASSOCIATES (845) 452-1988
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Present:
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CUDDY, FEDER, WORBY, ESQS.
Counsel for Cellular One
90 Maple Avenue
White Plains, New York 10601
BY: CHRIS FISHER, ESQ.,
of Counsel
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Kelly Libolt, AICP, The Chazen
Companies
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Kevin Brennan, Cellular One
representative
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James Bacon, Esq., Studley,
Manager, representing ten
families
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Speakers:
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Mr.
Mr.
Mr.
C. Iversen
Stinson
T. Stinson
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THE CHAIRPERSON:
I would like to
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call the zoning ordinance
zoning board of
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appeals to order.
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I will do the roll call.
victor
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Fanuele.
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MR. FANUELE:
Here.
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THE CHAIRPERSON:
Mr. Howard
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Prager.
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MR. PRAGER:
Here.
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Proceedings
,-,.
THE CHAIRPERSON:
And Doug Warren.
I'm Alan Lehigh.
MR. WARREN:
Here.
THE CHAIRPERSON:
I don't see
Gerry; he is absent.
I would like to have a motion to
open our public hearing.
MR. WARREN: So moved.
MR. PRAGER:
Second.
THE CHAIRPERSON:
Our public
hearing, all in favor?
MR. WARREN:
MR. PRAGER:
Aye.
Aye.
THE CHAIRPERSON:
Before we take
any testimony, I would like to read into the
record, we have some information from
Cellular One.
We asked when they submitted
the information on the cell tower that we
asked for; we received this on October 17.
MR. ROBERTS:
By Ronald Graif,
G-R-A-I-F.
THE CHAIRPERSON:
Yes.
And we have a letter from
Mr. Cooper; we submitted it to him with an
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answer in
Proceedings
that is dated November 6.
.........
MR. ROBERTS:
I think that's the
day it was received.
report 1S November 3.
THE CHAIRPERSON:
I think the date of the
Right.
And we have a letter from Cellular
One, a Daniel Hubbard letteri and we received
that on November 8.
We have another letter from
Mr. Cooper that we received on November 17.
We have a letter from Mr. Bacon
with some information, and I don't have a
date on this one.
MR. BACON:
Your Honor, was that by
fax?
THE CHAIRPERSON:
Believe so.
MR. BACON:
I'm sorry there is
no
date.
today,
I think my secretary sent it over
so I apologize.
MR. ROBERTS:
November 21.
THE CHAIRPERSON:
That was received
November 21 on
that from Mr. Bacon.
And last but not least we have a
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report from the Dutchess County Planning
Board in which we sent in the information and
they came back and said it is a matter of
local concern.
That's all the information I have
to read into the fax right now.
And we will start with you.
MR. FISHER: Good evening, members
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of the board.
the applicant.
Just, I would 1 ike, I wasn't in my
I'm Chris Fisher, attorney for
office; I am not sure if Mr. Bacon faxed a
copy of his memo to my office. If I could
get a copy, I will appreciate it. I don't
anticipate that holding up my response to
anything that might be in that memo.
We have gotten pretty much focused,
I think, in terms of the technical review;
and from the outset you recall from your
various conversations over the course of
these hearings, that at least with respect to
the height of this tower, I believe that
falls squarely within the planning board's
review.
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Under the special permit criteria
they have to determine whether the height of
the facility is the minimum necessary, and
that is something, of course, their
consultant, also your consultant, Mr. Cooper,
is advising them.
We have correspondences back and
forth with the planning board, copied you
with various copies of these technical
reportsj and I know Mr. Cooper provided you
copies as well.
I think we are down to really one
issue that I just need a few minutes to
clarify so that you can see where I'm coming
from with respect to the tower. I think we
got past the technical need for this facility,
at least in the mind of your consultant and
all the other locational issues as far as
from a, purely RF prospective, obviously
nothing to do with the variance question of
your report.
The issue on the height, you will
recall at our last hearing in October we had
submitted a report from our professional
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engineer, an outside consultant for Cellular
One, and I had said, if you will recall the
coverage plots in terms of 120, 150 and 180
really won't make a difference in terms of
coverage, and those plots aren't really
useful ln terms of how it relates to the
Honess Mountain site in terms of a capacity
issue.
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That really doesn't define that
issue. And one of the things we try to do is
submit additional information from Cellular
One in-house RF consultants to explain why we
believe we need a 150 foot tower at this
location, which is what we said at the
beginning.
The 180 issue has been something to
nothing, cellular needs back. We said from
the beginning we need a 150 foot tower at
this location in order to provide coverage
and capacity and to work within the network.
I think I can actually draw this
out to explain where the consultants come
from on the height question, and it will help
a little bit better.
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Before I do, we did just, this is
really just for way of clarification, this is
a cut sheet in color of the USGS in the area
because I think the area we are focusing on
is between, roughly, McFarland Road and the
intersection of Route 9 South to the Fishkill
Wappinger border as the area within which
Mr. Hubbard's letters identifies this area
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where 120 feet won't cut it.
And we believe
we need 150 feet to provide signal strength
along that stretch of the road in Wappingers.
This gives some locations to help
me in the discussion, but not something
necessarily to follow along with.
THE CHAIRPERSON: Height wise I
think it is more of a recommendation from us
than the planning board rather, because
that's not in front of us, the height.
MR. FISHER: Let me, really
briefly, if you think of the area along Route
9 between McFarland south to the municipal
border, if you look at that you can see where
we are right now as much lower elevation; if
you look, it is about elevation 150. Route
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9, this is ground elevation.
Route 9, I will
.........
just -- this is pretty much where we are,
(indicating), Route 9.
In that whole area of McFarland
going south is in the neighborhood of
anywhere from 250 to 350 feet ground
elevation; a difference of anywhere from, if
say this is 150 where we are -- sorry, 140 is
the site, and if we say that 250 is somewhere
up here, (indicating), and 300 lS around
here, (indicating), I am going to be bad on
the actual scale -- it helps to describe our
issue -- if you look at, if you look at
basically the elevation from where we are
going up, it goes up like this, (indicating)
into that area going south.
The whole question of height of the
tower relates to how the signal will be
provided, especially in this area where Route
9 is, up in the elevation from 250 to 300
feet above ground. If we are at 140 and you
take a 120 foot tower, that's 260 total
height; that gets you up to about here,
somewhere in this neighborhood,
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......
(indicating) .
If you try to figure out that
signal's going to get that, that road,
remember this is line of site technology, it
is really noti it is going to get to about
there, (indicating).
If you start figuring out how much
additional height means to get coverage on
that road, if you add in our case, the
difference between 120 and 150i 30 feet gets
you to about 290. That's 140 plus 150i
that's somewhere in here, (indicating).
Now you are basically, and this is
why we say this is really what we consider to
be the minimum, you are basically at that
stretch of the road where it gets about 300
feet elevation, you are just getting to it.
The higher you go, the better the signal
strength is going to be over here,
(indicating), because you are getting better
line of site penetration down versus having
to go through the trees.
And remember from Mr. Graif's
discussion, it degrades quickly, not a higher
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power system by any stretch of the imagination.
So when we identified this site and looked at
minimum height, we felt the 150 height is
really the minimum we can do to get the
signal if you look at the town, to cover the
town and basically get us down to the town
board, what we would anticipate. And we said
this before in Mr. Graif's report, over the
next couple of years, particularly the
.........
tremendous traffic patterns on Route 9,
would probably need another site.
That
we
site
would be somewhere between the Honess
Mountainside and site, and this site, the
Town of Fishkill.
And those two sites
ultimately would have to work together,
like this site has to now work with the
Honess site.
just
And one of the things that
Mr. Hubbard and even Mr. Cooper touched on is
to make this site the dominant site.
what that really means, and to help
understand that, Honess Mountain, I don't
And
know the elevation, got to be like a thousand
feet, basically looking straight down on
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everythingi that signal strength is going to
be pretty strongl especially in this area we
are trying to -- if you think of the two
signals almost fighting with one anotherl you
need sufficient strength in this sitel
(indicating) I in order for it to overlap with
this sitel (indicating) If you donI tl this
onel (indicating) I will start doing thisl
(indicating) I and you just won/t solve the
problem.
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That is about aSI from my
perspectivel move of a lay perspectivel not
engineering perspectivei best diagraming I
can do to try to explain we really feel 150
feet lS minimum.
I know Mr. Cooper asked in factI
I think if you look at his latest report at
the endl I think he acknowledges we may have
problems in that particular area if we are at
120. He asked uSI Can you do 135? Can you
live with it?
And the signal strength differencel
just to explain 60BI roughly I it is a
difference of I the difference betweenl for
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example, neg-90 and neg-85, which is
significant. It may be the difference
between something being able to, somebody
using their phone in the car versus not.
We really feel 150 feet is the
minimum, but certainly, again, this is
something the planning board is going to have
to address.
And as far as any other site on 9
South, I think we need it, just not at this
moment. It would be in Fishkill a few years
from now.
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I think that addresses most of the
technical issues.
And if I can just have a
moment to review this latest memo from
Mr. Bacon, I don't really have anything else.
THE CHAIRPERSON:
You don't know
how far you can go back? You will address
thatj that would take care of that.
MR. FISHER:
I will turn that over
to Chazen and let them address the location
of the area.
MS. LIBOLT:
I am Kelly Libolt from
Chazen.
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I think the question was raised if
there is any other location on this
particular piece of property in Wappingers
where the tower could be placed with no
variance required; we presented that to you
and said the only location would be the
wetlands in the center of the property.
We looked again at the information
provided, providing dimensional setbacks and
that was the middle school, the Randolph
School and a variety of residences around the
property.
.......
When we looked at information we
provided to you, there is a location further
back on the property, again based on the
mapping provided by your town engineer which
identifies the presence of the wetland and
the wetland's boundary. There is a location
in the back of the property that would
eliminate the variance required from the
middle school and would eliminate all the
variances required from the residences except
for one, that's the residence located
immediately to the east of your property.
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THE CHAIRPERSON:
Resident?
MS. LIBOLT:
It is the residence.
THE CHAIRPERSON:
It is a
residence?
MS. LIBOLT:
Yes, it is a, my
understanding it is a residence. The
variance eliminated would be the variance
from the barn.
MR. ROBERTS: Which one?
MS. LIBOLT: (Indicating) That one
there.
MR. ROBERTS:
stretch is the barn?
That particular
MS. LIBOLT:
That was the
other,
the, sorry, location was the barn.
THE CHAIRPERSON:
The new location
is still going to be far enough back even
from the residence; am I right? What would
the distance be from that residence?
MS. LIBOLT:
Approximately, 500
feet.
MR. ROBERTS: Could you, I would
like to have for the record the identity of
the home you are speaking of so we know
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..........,
precisely.
MS. LIBOLT:
Okay, so the setback
from that particular structure would be,
approximately, 500 feet, again give or take,
depending on the precise location of the
facility.
THE CHAIRPERSON:
Randolph School
ends up as pretty, I don't have the exact
dimensional setback, it would be significantly
further away from the original site, and the
original site was, approximately, 1,150 feet.
MR. BRENNAN: I think it would
reduce it, approximately, 120 feet we would
need from the variance.
MR. ROBERTS:
I would like a
clarification for the record what the exact
distance is for this board.
MR. PRAGER: We have to know that.
MR. ROBERTS: This board is
entitled to know that.
MS. LIBOLT:
MR. PRAGER:
Okay.
I would also like to
know the name of the structure we are talking
about, because I am completely confused now
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what structure you are talking about; the
residence or barn or whatever you are talking
about.
.....
THE CHAIRPERSON:
Whose property,
who it belongs to.
Want to take a break?
MR. FISHER:
Maybe to give us
an
opportunity to obtain that information,
it
would be helpful. Apologize.
THE CHAIRPERSON: All right, let's
take a recess for 15 minutes. See if you can
come up with that. I would like to close
this hearing tonight if we could.
(Recess held: 7:48 p.m. 7:59 p.m.)
THE CHAIRPERSON: I would like to
reconvene
the public hearing.
MR. FISHER:
In response
to the
question that had been asked about the
location, an alternative location as to the
cellular facility, there has been an area
that has been identified further to the rear
from its location now.
This has been
discussed, I believe, with the town engineer;
and that location, if you recall from Exhibit
........
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7, we had gone through all of the overlays
that are in there. That map is scaled 1 inch
equals 200 feet. The location, based on this
revision which we are going to hand up to the
board, basically from the structure that's
known to be a barn, it is 500 feet, but under
your code that wouldn't require a variance.
It is over 750 feet away from any adjoining
residencej it is out of the 100 foot regular
wetlands buffer area.
The only variance from that
location that would be required is an,
approximately, 100 foot variance from the
Randolph School, obviously, something of this
nature that hadn't a stake driven in the
ground and that is not a verified location.
But it's certainly clear for your
purposes of your board review that location
based on this diagram reviewed and the
distance shown certainly is something that if
the board wished could be approved subject to
field verification on the exact location.
Obviously, the planning board would
have some mobility with site issues. We need
........
."-'"
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to work with them on the side yard setback
issues and other things, but those are the
dimensions that are based on that discussed
alternative location.
.......
THE CHAIRPERSON:
For the record,
right now we don't need a variance for the
middle school.
We don't need a variance for
the residency because it 1S a barn, it is not
a residence. And we need a hundred foot
variance from the Randolph School?
MR. FISHER: Right.
MR. PRAGER:
A minute ago it was
130.
Are we sure exactly?
MR. FISHER:
A stake is not driven
in the ground to get an actual surveyed
dimension because there is no location or
compound laid out. But I believe based on
the information that Chazen prepared, it is
plus or minus a hundred feet.
My recommendation on 1ssues like
this, at least rather than an actual
dimension as to any variance that might be
granted, you would grant a variance subject
to the plan as shown, and we have got to have
"-""
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some flexibility with the planning board
because there may be site planning issues
that the location of that tower would be,
would dictate its exact locations.
MR. FANUELE: We are talking about
maybe 20 feet rather than hundreds of feet?
MR. FISHER: Exactly, exactly.
THE CHAIRPERSON: Anything else?
MR. BRENNAN: We did verify through
Chazen, they did verify since our last
meeting those arches on the plans we
submitted to you were the distances.
So
......
with, we are going by what was verified and
we had it reverified to that, those setbacks
when we say they are based on that
information that we gave you in September; so
if you took those origins you will see there
is, they were outside that one school, no
residence, and within one, depending on what
points I set the pole physically, there would
be, the difference could be a hundred feet,
could be a hundred ten foot. But it is
outside the arches and scale based on the
intersections of about a hundred foot.
........
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.......
THE CHAIRPERSON:
Okay.
MR. FISHER: The only other
additional information that I want to raise
very briefly, I will respond to the November
21 fax I believe you have addressed, at least
your consultants have, these various
questions seemingly being posed to the
applicant, and all issues are questions posed
to planning board issues, not zoning board
issues on minimum height capacity, need for
the specific location.
If we are talking about the need
for specific location ln a wetlands sense or
setback sense, that's what we have been doing.
As far as technical issues, that 1S
planning board issues. And I believe in fact
the planning board has all the information
and, including discussions of alternatives
the applicant looked at throughout the
process. And the record is fully clear as to
why this location not only works for the
applicant, but others.
And the only other piece of
information I really hadn't full opportunity
.......
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to look at, but Mr. Graif's discussion was
submitted to the Village of Wappingers Falls
for coverage of their community. While the
village falls within the town, the town
doesn't have zoning jurisdiction over the
village; and that report is really germane to
the village's questions how we are going to
........
site the facilities in our community.
But it
really doesn't have any bearing on this
application.
And In fact, if you look at the
report, it is all based on what's called PCS
carriers, which if you recall from Mr. Graif's
testimony here before, PCS carriers
admittedly need more sites than cellular
because of difference of technology; that
went into the basis of his report to the
Village of Wappingers Falls.
I don't see it
as relevant to what you need to address in
terms of the variance and appeal we have
brought before you all.
Thank you.
THE CHAIRPERSON:
That's all the
information you have to bring in front of us
.......
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. .......
now?
MR. FISHER: Yes.
THE CHAIRPERSON: I would like to
open it up to the public. But what I would
like to do here, I would like to have new
evidence, something germanei I don't want to
rehash all the arguments that we have been
over for the last couple of months. If you
have something new we will listen to YOUi and
if you don't, I really don't think we want to
take the time to rehash the story 15 times.
I haven't asked anybody to sign in or
anything.
MR. BACON:
Good evening, members
of the board. I don't think I am going to be
rehashing old material. I corresponded
several times on different issues, but there
is just some clarification that is required.
First, what Mr. Fisher said about
the difference between planning board and ZBA
obligationsi there are some overlapping
issues there, but the main reason that the
alternatives, jurisdiction is within the ZBA
is from town law 267B3 which talks about
~
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looking at reasonable alternatives when
'-'"
somebody is seeking area variance.
So that
is within this board's purview and not the
planning board. The planning board has other
obligations.
The other part is with, concerning
the Randolph, Mr. Graif's report concerning
the water standpipe. That is about a third
of a mile in this site, and it is located in
the village.
But again, look at alternatives;
under 267B this is a site that the engineer's
applicant hired. This engineer, and getting
reports to this board already, but the
reports so strongly was in favor of the
standpipe on the water tank that it was the
most excellent location and most ideal
location that could be found in the village,
especially to have the Route 9 corridor, that
we felt it was very pertinent to bring to
your attention especially considering that
the town's ordinance on cell towers request
an applicant to look at sites within five
miles of the site.
.......
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But, so I think that's the reason
we presented that.
There is a couple of things I
haven't addressed; I would like to go quickly
over those. One, the applicant made a
submission to the board on August 31, and
part of that submission, he claimed that he
made the arguments that they may be exempt
from local zoning.
He cited the case Carpaneto versus
omni Point, and it is important on that case
that the facts are completely different from
this case. That case dealt with cell tower
going on Thruway property. And everybody
knows how quickly the cell towers sprung up
on the Thruway, because the Thruway Authority
was exempt from local zoning because under
the idea that they needed this communication
network for the Thruway itself, but also for
the people traveling on this limited access
highway. So that is the reason the court in
that case found that the Thruway was exempt.
And also in this case, Mr. Chairman,
the existing tower lS 120 feet, and they only
......
.......
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wanted to add 30 feet to the existing tower,
not like in this case where you have a 35
foot police antenna they want to quadruple In
height.
.........
The other item in that
correspondence that I would like to respond
to is the argument that because of the cell
ordinance, it says that the, that where you
should put these towers is an objective site;
objective, somehow that's a discretionary,
that's a discretionary obligation by the
board. And that, all that follows in that
section of the law is something that can be
waived.
And, Mr. Chairman, one of the first
things we learn in law school is the
d iff ere nee bet wee n II may II and II s hall II; W her e
it says it shall, it means it is mandatory.
And looking at that whole section of the
citing objections, I didn't see one IImayll in
that entire section. There is, they talk
about that the tower shall be located no
closer than 1,500 feet; the fencing shall be
this, the signs shall be that, the new tower
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shall not exceed minimal heights.
It is completely obvious that when
you look at that section as a whole it was
the intent of the drafters that this be,
~
these be mandatory requirements.
And I am
glad.
I mean, so we would support the
building inspectors' interpretation of that;
that they have to be here before this board
to seek a variance.
The other thing that makes that
clear, one of the other arguments that the
applicant made was somehow the 1,500 feet
requirement or 750 foot requirement are not
legitimate zoning, there is no legitimate
zoning rationale for those requirements.
And if you look at the section
under citing objective factors, visual
aesthetic factors, possible diminution of
residential property values, safety issues
and an environmental degradation and buffers,
these are all requirements that have been
identified by local, state and federal courts
as legitimate zoning objectives for any
municipality to undertake to protect. And
"-"
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many of the zoning laws are specifically
created for proper planning and it is well
settled these are proper and legitimate
objectives of a board and form the basis of
constitutional ordinances.
And, Mr. Chairman, this, the case I
think that spells this out so clearly, the
case in which I sent to the board on October
20, Sprint versus the Town of Ontario, a case
in upstate New York, but it went to federal
court and Sprint appealed it to the Court of
Appeals, to the Federal District Court of
Appeals; and that both cases, the court held
in the town's favor.
Now, in that case it was so similar
to this case because there was, they are
talking about whether or not the board can
make a determination that would restrict the
level of service to what the applicant was
requesting, and that case the applicant
wanted to have a maximum amount of coverage
with a town with three different towers, and
the town would not accept the three towers.
And the court upheld the town's authority to
"-"'
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limit the level of service.
And they did so because the
telecommunications act requires that a town
not prohibit telecommunication providers from
coming into a towni but they are quite a bit
different from electric utilities or
telephone utilities, and so the standard is
different.
~
In that, in fact ln that case the,
Sprint argued the board didn't have the
authority to compel a lesser level of service
than the carrier deemed necessary to compete
effectively.
What the court said is that a local
government may reject an application that
seeks permission to construct more towers
than the minimum required to provide wireless
telephone services in a given area.
This direct quote, again a denial
of such a request is not a prohibition of
personal wireless services as long as fewer
towers would provide users in the given area
with some ability to reach a cell site.
So some ability, you are not
........
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prohibiting them, but they have some ability
to make a telephone call.
Now we would argue that even if you
are obstructing five times out of a hundred
blockings from making a call, that is still,
you are still within the zone of being able
to make a cellular call.
And I read the applicant's energy
report which said they would like to get down
to two calls blocked per hundred. They cited
that this was some kind of FCC or federal
.......
requirement.
I don't believe it is.
And
that was one of the things that Mr. Cooper In
his correspondence asked the applicant for
more information, because I don't think
Mr. Cooper believed that was so much what FCC
required. They got down to two blocked calls
per hundred.
So, so, in sum with this case, the
municipality where the standard finally is
settled, a municipality could not deny the
least intrusive means for closing a
significant gap in a remote user's ability to
reach a cell site. So there has to be least
"-'"
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intrusive means and there has to be a
significant gap in the service.
Now, rolled into that is, of
course, what are the effects on property
values and aesthetics; those are obvious
concerns and were noted by the court as
legitimate concerns.
And the, and Sprint tried to argue
they did not have to look at any alternatives;
but the alternative they were presenting,
because this gave them the adequate amounts
of coverage they were seeking from a
competition standpoint, and the court
specifically rejected arguments saying that
under New York State law, state law, that the
board is not prevented from requiring the
applicant to consider alternatives that may
provide less coverage than what the cell
applicant is actually, what their preferred
alternative would be.
So, so, this brings us back to what
I said in the beginning about this study we
got from the village from Mr. Graif who, when
we looked at this report we thought this is
~
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an alternative that seems like it would meet
~
the applicant's need.
And we are sort of, we
are not sure why they didn't go ahead with
this site.
Mr. Graif said specifically the
location of this water standpipe nearly
adjacent to Route 9 will provide excellent
coverage to this important driving right, the
height of the tank, approximately, 105 feet
above the ground is ideal for most system
operators; in addition, the fact the
standpipe is the location of an existing
cellular antenna indicates such location has
passed the test of zoning plan environmental
review and any other ordinance or law that
may be considered, and assumes with this, is
indeed, the ideal location.
So, Mr. Chairman, when you take
that into account and try to plug that into
where this fits in under the statutory scheme
of New York State and the federal scheme, as
well as the local ordinance and the town law
requirements, I think it fits in to the
section where this board, in considering area
"'-"
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variances can decide that they would like to
see reasonable alternatives presented that
void the requested area variances, and also
under the town's ordinance, cell ordinance.
They have the obligation, we
believe, to look at beyond this specific site
on to other sites. And I think that's what
this ZBA asked on September 26. The
transcript says, We would like you to come in
and show why you need this specific location,
and we would like you, we would like you to
show us that you cannot use any other sites
or any other existing towers to boost the
capacity to provide for this coverage.
And, Mr. Chairman, I looked through
the file, I looked through all the
correspondences; and that third requirement I
just do not see as being met. I see nothing
to indicate that they looked at any other
sites that may have been before the planning
board.
........
But you looked through the planning
board's files as well, and it's certainly
before this board that indicates that they
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looked at specific sites, like this water
standpipe over Route 9, and examined how this
meets their coverage needs and would be the
least intrusive means for achieving goals.
So, Mr. Chairman, I really
appreciate if the board looks at that Graif
report and gives this the considered
consideration that we believe it really
needs, because there are people in the
audience who live around this area who we
believe would be affected negatively by
this.
........
THE CHAIRPERSON:
Thank you,
Mr. Bacon.
Anybody else?
MR. IVERSEN:
I-V-E-R-S-E-N.
I wanted to thank the board and
I'm Chris Iversen,
also our counsel member, Mr. Valdati, for
coming tonight, and right on the heels of
Thanksgiving holiday, so our ranks were
filtered out. We still got a bunch of folks
out; thanks for coming and listening again
and asking the questions with us.
.........
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I want to just respond to one thing
from the last meeting. There was, it was
pointed out whether anything that I had to do
with this whole, any words I had to say or
the contacting of the attorney was valid
because I wasn't a property owner in the area.
And I wanted to say I have lived
and worked and shopped in the area for more
than ten years. I don't feel that being a
property owner would have anything to do with
it, especially considering I have done
volunteer work on my own time for dozens of
organizations, Hudson Clear Water, Grinnell
........
Library, 4H, Stony Kill Farm.
and on.
I can go on
But a big part of my mission
outside of work is making this area and the
local kids in the area want to stay here and
feel like they have something to grow up In
and something to cherish. So a lot of my
work is with local youth getting them to
experience the national history and cultural
resources we have.
free.
And I do all this for
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And I would like to ask the people
who brought that up what they have done for
our area? It seems while I am trying to keep
something good for the future and looking with
a long range view for everyone in this area,
the people who brought this to attention,
questioning whether it is worthwhile for me
to be having anything to do with this, what
they are trying to do is get a short term
gain from our area at the expense of the, at
the expense of the local people.
With that said, I am a property
owner; I do own property in the Town of
Wappingers, so it is kind of not discussing
it anyway.
I had a question regarding this
height proposal. On this diagram it seems
that it would be much more logical, this is
an area you, trying to reach instead of a
tall tower here, (indicating), maybe instead
of to have a shorter tower up higher. That
1S one thing, when looking at other areas to,
to consider.
But when you do look at other
"-"
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considerations, you may want to consider a
higher area; that would definitely help, I
think.
.......
And also regarding the height I
wanted to just pose a question. If a hundred
50 feet is the absolute minimum that you need
for that sort of coverage, are we then
guaranteed there won't be any transmitter or
receivers or antennas or whatever they are
called, lower than a hundred feet, so 500
feet meeting the -- in other words, we won't
see one at 150 feet and another set at 10
feet lower and then another 10 feet lower,
which I know was the original thinking.
But
I think that is a question that should be
asked, if they were to say 150 feet is
necessary.
THE CHAIRPERSON:
We are not
talking about any additional towers, just the
one tower.
MR. IVERSEN: Go ahead.
THE CHAIRPERSON: I think we wanted
you, if you are within 500 feet of that
tower, then they have to notify you legally.
"'-"
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MR. IVERSEN: I see.
THE CHAIRPERSON: That's merely a
guess on my part.
MR. IVERSEN:
I didn't feel
slighted I wasn't notified.
THE CHAIRPERSON:
We let you talk
anyway.
.......
MR. IVERSEN: Thank you.
The other thing is location, and I
know that you are asking for new issues, but
the big issue we feel, this is not a new
issue, but we don't feel it's resolved in any
way. All the attention and, the Cellular One
and their people here are addressing is
moving the tower around within the property
that they chose; and no matter where you move
it in that property, all the things they have
suggested still require a variance.
Why not look at a site that doesn't
look at a variance? Why not start with that
as a ground base?
Start with a place you
won't need variances for distance.
It is the
first thing, I think.
So I just, I would like to field
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like, before we move on to these new issues,
that we resolve this one important old one of
location, why this location was chosen, what
other locations were looked at, and why is,
are the variances necessary, why is this
location so important, why isn't there any
other location within the five mile radius
within town code?
We have not
seen anything
I have not
of looking at any other site,
.........
anyway, and I have been as many meetings as I
can possibly be at.
Last new, possibly new plece of
information, this is why I feel that other
locations are really worth a look at because
there is just so much good energy gone into
preserving and improving this area; we have
got the Dutchess County Historic Drive, I
don't know how long it's been there, but it
goes on Route 9 covering the historic
buildings in Hughsonville, Wappingers and we
will see it along that route; it will be
quite prominent.
In addition, show the new greenway
trials for Wappingers and Hughsonville, also
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is close along Wappingers Creek and cuts
through East Park to 9D a couple of buildings
down from the Randolph School. So that too
is very close.
And not only that, but the proposed
education loop off that trial would actually
come through these wetlands right behind the
town building and the emergency facilities
buildings because it is, because of the state
protected wetlands and shows different
habitants dominant in Dutchess County,
otherwise not a part of the Wappingers
greenway trail.
So what the trail does is try to
boost the area's economy as well as
preserving its cultural historic value.
And this trail is, it really has
been working.
If you notice changes in
Beacon and across the river, it really does
boost the town. It will fly right in the
face of those advances putting up industrial
features when it is supposed to be a cultural
nature trail. I think we need to think twice
and really put care into looking at other
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locations.
And that's the last thing I wanted
to say that, again for looking at other
locations. If you are going to get, if you
are going to ask for any variances, I would
think the one most important is this distance
from the schools, because really a lot of
kids that I have talked about it are just
kind of flummoxed; they can't really believe
why would they put it here, it is near us.
We are not talking about health
risk.
THE CHAIRPERSON:
We are going over
the same thing we have been over many, many
times.
MR. IVERSEN: Okay, thanks.
THE CHAIRPERSON: Anybody else?
MR. FISHER: Just some closing
comments then, chairman.
THE CHAIRPERSON:
Do that.
MR. FISHER: Let me first say to
Mr. Iversen, no slight; we just thought it
was relevant to the board to know he is not a
property owner, he would have no claim effect
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from that proposal, and his comments are put
in context; I think that is fair.
The question is what kind of
service does cellular provide to the
company? Individuals can debate this;
Congress debates on it, wireless services.
I
........
think by most people it is an important form
of communications in today's world.
It is
not just for people who use it for business
purposes or convenience; it is a safety and
health issue.
In fact at a federal level carriers
are being required to, over the next few
years implement technical, to triangulate
cellular use within a hundred feet, so when
you call 911 it is not a police officer
trying to find out where you might be if you
are broken down on the side of the road.
Eventually they will pinpoint where you are
and be able to come more immediately to the
scene.
We can debate all of this, but none
are relevant to the board's considerations on
a variance or appeal we have before you.
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It was interesting comments made.
We submitted a case kind of somehow alluding
we weren't subject to zoning. If we weren't
subject to zoning, I don't know what I have
been doing for the last year. I think we
agree we are, and that's what we are scoping
out, what is subject to review by various
boards.
~
I think we brought that case to the
attention to identify certain towers are not
subject to local towers. In fact the police
down here is town property. And that answers
the question why we are here. We are here
because your existing tower here, we can't
use that, unfortunately, because it's
controlled by state police, and also it's not
high enough for our needs.
If you look at the planning board
needs to come up, it is not your board, that
is one of the highest criteria in terms of
being able to locate a facility, is to put
these facilities in one location together
versus dispersing them throughout the
community.
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And when you look at the case cited
by Mr. Bacon on certain heights, I agree that
the court's decision, complaint came into
that community and said we are going to build
three 100 foot towers in this residential
zone, this zone, and you don't have any say
in it. I agree they said you have a say in
this and say if and now you're building thisl
and that would meet your needs.
And I think the court got it
right. They didn't get it wrong in that case
at all.
--..
When the question came up about
blocked calls, 2 percentl your consultants
has agreed that is good industry practicei In
facti that/s standard while you won't find it
now in the current FCC regs. It goes back to
1984 when Congress and the FCC setup cellular
networks and said 2 percent system is what we
are trying to achieve, because what we are
trying to get with wireless service is close
to a land line as possiblel and we have had
that discussion. When you pick up the phone
at home you expect there to be a dial tonei
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same thing in a wireless network.
Mr. Graif's report, although it has
been provided to the board against that, all
that has to do with is what's good for the
village to get coverage to the village on
Route 9, not what's good for the town to get
coverage on the town on Route 9, which
doesn't include the entire village. We are
talking substantial stretches of road going
south towards Fishkill.
And Mr. Graif was here testifying
on our behalf, and Mr. Cooper looked at these
issues as well. So while that may be
something good for the village and you
prepared your report, I don't think it 'has
particular relevant information as to how are
we going to cover the town with Cellular One
service, and what we are proposing to do is
build a tower where there is an existing
tower on the 35 acre parcel; that even under
the last scenario needs one variance from the
school over 1,400 feet away.
And I have alluded to it, not
necessarily something you need to decide, but
"-'"
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I don't think you can provide a piece of
property in the Town of Wappingers that meets
all the criteria and other things adopted in
a lawj I don't think you could.
The one thing I did want to
conclude with is on some of the societal and
kinds of other, I guess what Mr. Iversen
saidj the Appalachian conference national
governing body is trying to make sure the
trail is safe, and actually has agreements
with the wireless carriers to address the
,,-,.
facilities.
But they acknowledge build out
the wireless infrastructure near the trail so
people can use the trail while on the phone
for safety purposes.
It is a question of how we will do
it and that is what we have begun doing,
dealing with the planning and zoning board.
The question, as I see it, for your
board is really not all of these other very
good questions, but questions that need to be
answered by the planning board. It is where
on this lot are we going to go to minimize
the magnitude of the variancesj where is this
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tower going to go so that it is far away as
possible, acknowledging we have got wetlands
or development and an existing tower here,
and we think the location as proposed,
alternative location that's suggested, either
of those work to meet those objectives.
Thank you.
......
THE CHAIRPERSON:
I would like to
ask you a question. The question for
interpretation of zoning letter, can we do
that before we close the
MR. ROBERTS: I think you should
make that part of the written decision.
THE CHAIRPERSON: Nothing else to
come in front of the board?
MR. T. STINSON:
S-T-I-N-S-O-N.
Is Cellular One and the board
I'm Tim,
willing to sign a piece of paper saying that
the area won't become a cancer cluster?
THE CHAIRPERSON:
If you are asking
me, I am not --
MR. T. STINSON:
The trooper
barracks is what?
......
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THE CHAIRPERSON: I have no idea.
MR. T. STINSON: We are boosting
the signal to 900 so there will be additional
.........
power coming from a tower.
So my question is
let them put it in writing that nothing lS
going to happen to these people in this area.
THE CHAIRPERSON:
First of all,
they don't have to.
Second of all, we are
not allowed to take that in their
consideration, in our deliberations.
So
that's what we have said to everybody before.
MR. T. STINSON: They want to
uphold their reputation, no problem.
THE CHAIRPERSON: The federal
government precludes us from doing anything
so there is nothing I can really --
MR. T. STINSON:
But it also said
to write zoning laws to put the tower, but
according to some people it is frivolous.
THE CHAIRPERSON: Motion to close
the --
MR. IVERSEN:
I sat down.
I just
want to ask Mr. Fisher, I wanted to ask one
question; do you feel you have addressed the
.........
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question of looking at all other locations in
the area as well as this one right here?
........
THE CHAIRPERSON:
You should be
asking the questions to the board, not to
Mr. Fisher.
MR. IVERSEN:
Okay, then I will.
Do you feel Mr. Fisher has addressed the
question of looking at all other locations,
not just the one?
THE CHAIRPERSON: I won't go
through all the evidence again, but you are
welcome to come down and get copies, go
through the information and make an
interpretation for yourself. But I am not
going to go through all that and start with
that right now.
MR. IVERSEN:
MR. STINSON:
Okay.
Has the board asked
Cellular One if the standpipe in the village
is adequate for their needs?
THE CHAIRPERSON: I haven't.
MR. STINSON: I will relay a
conversation I had with Mr. Brennan.
MR. BRENNAN:
Hold it, hold it.
If
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this gentleman is going to say a conversation
he had with Mr. Brennan, he did it twice
before he asked a question in the hallway.
Half the answer he wants, and he recites what
~
he wants, whatever he has to say.
would like to comment back on it.
MR. STINSON: Can I say it?
THE CHAIRPERSON: Go ahead, but you
know, you know, really we have been hashing
this thing and killing it to death.
And I
MR.. STINSON:
I haven't hashed it
enough because the board didn't ask Cellular
One whether the standpipe is adequate.
MR. BRENNAN: The board did. It
may not have been this board, it may have
been the planning board. But Ron Graif
specifically discussed that 11 of the two
boards --
MR. STINSON:
Does that exist in
the final writing?
I read the final; I
didn't make that statement before I read the
file.
I read, I made that statement after I
read the file.
in the file?
Does that information exist
---
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THE CHAIRPERSON: I don't know.
"-""
MR. STINSON:
If it 1S not written
down it don't exist.
MR. FISHER:
MR. ROBERTS:
No, it doesn't.
One at a time,
please.
MR. FISHER:
To answer his
question, it is part of the record before the
planning board and it is 1n the planning
board records.
MR. STINSON:
I talked to
Mr. DiNono, I asked Phil personally if that
standpipe was ever addressed in the planning
board.
The answer I got back was no, the
planning board was given one site to consider
and only one site, and that site back there,
(indicating) i no other sites were discussed.
THE CHAIRPERSON:
That is not 1n
front of this board at this time.
want to discuss it --
If you
MR. STINSON:
He made a statement.
THE CHAIRPERSON: All right, if you
want to discuss it or do anything about it
.........
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MR. ROBERTS: I have to make
something for the record. I do know that
topic was discussed. There is so many
meetings, I don't know whether it was the
planning board or zoning board, but the issue
of placement of this unit on the village
tower was discussed.
I believe it was the Town Engineer
paggi who suggested it won't be appropriate
at that site because of elevations and
structure defects on the village tower.
I won't tell you if it was in front
of this board or the other board.
.........
MR. STINSON:
MR. ROBERTS:
Is it written down?
It doesn't have to
bei it was discussed.
MR. STINSON:
If it wasn't written
down it doesn't exist.
MR. ROBERTS: That lS not correct.
THE CHAIRPERSON: You had a chance
to make a statement.
Any motion to close the hearing?
MR. WARREN: So moved.
THE CHAIRPERSON: All in favor?
~.
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MR. WARREN: Aye.
MR. PRAGER: Aye.
THE CHAIRPERSON: We will try to
get back with findings of fact and decision
on the 19th of December. And if we can't get
everything together down, then it would be
~
the 9th of January to let you know.
will put it in the paper.
And we
MR. FISHER:
For the record, we
have given extension to the planning board to
the end of January, so either scenario.
tonight.
THE CHAIRPERSON:
Off the record.
(Time noted: 8:40 p.m.)
That's it for
'~
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C E R T I F I CAT ION
I, Melissa B. Anker, Notary Public,
do hereby certify that I recorded
stenographically the proceedings herein at
the time and place noted in the heading
hereof, and that the foregoing transcript is
true and accurate to the best of my
knowledge, skill and ability.
IN WITNESS WHEREOF, I have hereunto
set my hand this 4th day of December 2000.
__i~-~-~-~------
MELISSA B. ANKER
SCHMIEDER & ASSOCIATES (845)452-1988
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OR.... U~~f\. p ~
. ~ uu.. \....-"l..
2 TOWN OF WAPPINGERS
ZONING BOARD OF APPEALS
3 _________________________________________________X
4 Transcript of Proceedings Re:
5 Appeal No. 00-7062
Cellular One Proposal
6 _________________________________________________X
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November 14th, 2000
7:30 p.m.
Wappingers Town Hall
20 Middlebush Road
Wappingers Falls, New York
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BOARD MEMBERS:
ALAN C. LEHIGH, Chairman
GERALD diPIERNO
DOUGLAS WARREN
J. HOWARD PRAGER
VICTOR L. FANUELE
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* * * * * * *
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REPORTED BY:
Kimberly Burke
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SCHMIEDER & ASSOCIATES
Professional Shorthand Reporters
82 Washington Street, poughkeepsie NY 12601
(914) 452-1988
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(Excerpt of proceedings)
CHAIRMAN LEHIGH: I would like to
call the zoning Board of Appeals to order. I
would like to start with one announcement. There
will not be a hearing tonight on the cell tower,
simply because we did not hear back from our
expert as to the information that was submitted to
Mr. Cooper, and we can't go forward without that
information and his opinion of it and so forth.
We found this out late today, so there was no
way to notify anybody except for tonight. I'm
sorry for your inconvenience in coming down for
the people that came down for the cell tower, but
we are not going to open it up or even discuss it.
We are hopefully having a meeting next
Tuesday, a special meeting, that we are trying to
call, and hopefully we will get the information
from Mr. Cooper and we will go through with it at
that time. I don't believe that there will be
anything else on the agenda but Cellular One next
Tuesday.
UNIDENTIFIED SPEAKER: What time next
Tuesday?
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CHAIRMAN LEHIGH: 7:30. It will be a
special meeting. That's all we can do. There is
nothing else I can do at this time. It's not
anybodies fault but ours.
I'm sorry for your inconvenience.
(Rest of transcription to follow)
SCHMIEDER & ASSOCIATES 914-452-1988
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C E R T I F I CAT ION
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I, KIMBERLY BURKE, a Court Reporter and
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Notary Public in and for the state of New York, do
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hereby certify that I recorded stenographically
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the proceedings herein at the time and place noted
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in the heading hereof, and that the foregoing is
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an accurate and complete transcript of same, to
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the best of my knowledge and belief.
"-"
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~fkjJ-e klLy- d t,. II.Y.-f
KIMBERLY BURKE
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20 Dated: November 18th, 2000
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SCHMIEDER & ASSOCIATES 914-452-1988
i, i'JUTES
APhiOVED
DEe 2 2000
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TOWN OF WAPPINGERS
ZONING BOARD OF APPEALS
_________________________________________________X
ORIGI~JAL
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Transcript of Proceedings Re:
5 Gasland Petroleum
and
6 Thomas Genova
_________________________________________________X
7
9
November 14th, 2000
7:30 p.m.
Wappingers Town Hall
20 Middlebush Road
Wappingers Falls, New York
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BOARD MEMBERS:
ALAN C. LEHIGH, Chairman
GERALD diPIERNO
DOUGLAS WARREN
J. HOWARD PRAGER
VICTOR L. FANUELE
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r.-~.
,e
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REPORTED BY:
Kimberly Burke
-----------------------------------------------------
"-'"
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SCHMIEDER & ASSOCIATES
Professional Shorthand Reporters
82 washington Street, poughkeepsie NY 12601
(914) 452-1988
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CHAIRMAN LEHIGH:
I would like to
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call the zoning Board of Appeals to order. I
would like to start with one announcement. There
will not be a hearing tonight on the cell tower,
simply because we did not hear back from our
expert as to the information that was submitted to
Mr. Cooper, and we can't go forward without that
information and his opinion of it and so forth.
We found this out late today, so there was no
way to notify anybody except for tonight. I'm
sorry for your inconvenience in coming down -- for
the people that came down for the cell tower, but
we are not going to open it up or even discuss it.
We are hopefully having a meeting next
Tuesday, a special meeting that we are trying to
call, and hopefully we will get the information
from Mr. Cooper and we will go through with it at
that time. I don't believe that there will be
anything else on the agenda but Cellular One next
Tuesday.
'-""
UNIDENTIFIED SPEAKER: What time next
Tuesday?
CHAIRMAN LEHIGH: 7:30. It will be a
special meeting. That's all we can do. There is
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PROCEEDINGS
nothing else I can do at this time. It's not
anybody's fault but ours. I'm sorry for your
inconvenience.
Moving along, we didn't get the minutes in
time for October 24th, so we will open the
meeting.
We have a stenographer here tonight, so I will
call the roll. victor Fanuele?
MR. FANUELE: Here.
CHAIRMAN LEHIGH: Mr. Prager?
MR. PRAGER: Here.
CHAIRMAN LEHIGH: Doug Warren?
MR. WARREN: Here.
CHAIRMAN LEHIGH: Gerry dipierno?
MR. diPIERNO: Here.
CHAIRMAN LEHIGH: We are all here
present and accounted for. We will start out with
Jeffrey Tomlins, is he here?
(No response)
MR. PRAGER: Tania, have you heard
from Mr. Tomlins?
MS. LUKIANOFF: No, I assumed he was
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going to be here.
MR. FANUELE: I would suggest that we
put Mr. Tomlins at the end of the agenda and give
him a chance to get here, if the other two are
here.
CHAIRMAN LEHIGH: All right. Let's
start out then with Gasland Petroleum. They're
seeking two area variances in order to have a gas
station. The property is located at the corner of
Route 9 and Old Hopewell Road in the Town of
wappingers.
MR. GORDON: Good evening. My name
is Eric Gordon. I represent the applicant,
Gasland Petroleum. We are prepared, your Honor,
but the engineer just got here and he needs a
minute to set up.
CHAIRMAN LEHIGH: We will give you a
minute.
MR. GORDON: I appreciate that.
CHAIRMAN LEHIGH: No problem.
(Pause in the proceedings)
MR. GORDON: He's ready to go.
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Gasland Petroleum is seeking several area
variances. I think everybody here is pretty
familiar with the site. It's a rather unique
site. It was previously used as a gas station.
The variances are rather modest in nature and not
substantial; given the existing condition of the
lot and its proposed use, we don't believe that
it's going to affect the character of the
neighborhood. There won't be any undesirable
changes effected by the requested variances. And
again, given the unique nature of the site and
that it is a non-conforming site, as you all know
right now, there won't be any effect on the
physical or environmental conditions of the site.
And we believe public safety will not be affected
either, so it meets the requirements for obtaining
this type of area zone change.
Our engineer is here, Ron Miller. He will
give a short presentation of what we are proposing
for the site, and then we would like to discuss
the process of getting through to the final public
hearing.
CHAIRMAN LEHIGH: I have quite a few
questions.
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MR. GORDON: Sure.
CHAIRMAN LEHIGH: We will have you
make your presentation and then I will ask the
questions, because it looks to me like you need
five variances.
MR. GORDON: That's correct.
CHAIRMAN LEHIGH: I only see in the
record that you're asking for two.
MR. GORDON: To address that, the
application that we forwarded specifically states
that we are requesting -- I guess there were two
from one section of the zoning code and three from
another section, so they're from two different
requirements. One is a special use permit section
and one is under the general zoning ordinance
section. I believe the application that we
submitted sets forth what we are seeking.
CHAIRMAN LEHIGH: 240-37 and 240-52.
MR. GORDON: Yes. So I'm sure --
CHAIRMAN LEHIGH: We need you to
present how much you need and the differences and
everything else. Make your presentation and I
will ask my questions after that.
MR. MILLER: We have a new building
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going on the existing footprint, 2,400 square
feet, which calculates, based on square footage,
to sixteen parking spaces, which we are providing,
half of which are for customers that will be
coming just to use the store and the other half
are for the gasing customers that will stop in not
only to pay for the gas, but to purchase items.
We have it buffered quite well, I believe,
from the residential area in the back. The
ingress will be here and the egress here
(indicating). If you're heading on Old Hopewell
Road it will be here (indicating). To the south
of the facility is an automotive repair center,
Five Star Automotive. Over across from Old
Hopewell Road is 7-11 and La Fonda Del Sol and
Hart Plaza are across the way (indicating).
The pumps and the tanks will all be a new
system with lead detection and firefighting
equipment all installed by a licensed certified
installer. That is basically it at this point.
The one handicapped-accessible spot is here
(indicating). Also these islands were provided by
the DOT on their upgrade of Route 9, and that's
about it.
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CHAIRMAN LEHIGH: Is that a canopy?
MR. MILLER: This is a canopy, yes.
MR. diPIERNO: How many tanks are you
proposing to put in there?
MR. MILLER: How many tanks?
MR. diPIERNO: Yes.
MR. MILLER:
Three tanks. Well,
This one is divided
actually it would be four.
(indicating).
MR. dipIERNO: How many gas pumps?
MR. MILLER: Eight.
CHAIRMAN LEHIGH: This site requires
two acres?
MR. MILLER: That's right, 1.47.
CHAIRMAN LEHIGH: 1.47. For some of
that 1.47, isn't the parking split between that
place and the oil-changing place next door? It
used to be.
MR. MILLER: Five Star Automotive?
CHAIRMAN LEHIGH: Yes.
MR. MILLER: This parking here is
partially an easement, a parking easement.
MR. FANUELE: Can you explain the
parking easement? Who owns it?
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MR. MILLER: That I can't answer.
MR. GORDON: Right now, I'm not sure.
Do you know who owns it?
MR. CAPPILLETTI: I guess it's part
of the property next door. At one time I think it
was all one piece, but when I purchased it, that
was part of the deed, giving the parking area. It
was a place to put a sign and parking spaces.
MR. GORDON: This is Mr. Cappilletti,
the principal owner of the property.
MR. FANUELE: That piece of property
is owned by Five Star?
MR. CAPPILLETTI: Well, the guy who
owns Five Star's property, yes.
MR. PRAGER: The triangle itself, the
whole triangle, we are talking about.
MR. CAPPILLETTI: Yes, the triangle.
CHAIRMAN LEHIGH: So the lot is
substandard, you don't have the 200-feet depth
required, you only have 153 feet; the building
coverage is going to be 25 percent and you're only
allowed 10.39, and the impervious surface is going
to be 75 percent instead of 74. This is all
correct?
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MR. GORDON: Yes, sir. It's due to
the unique nature of the site. This was the site
that had to be existing previously.
CHAIRMAN LEHIGH: Are you 1,000 feet
away from the residential area, or how far are you
away from the residential area? I don't see any
measurement or details on that.
MR. GORDON: It's less than the 1,000
feet, I know that.
CHAIRMAN LEHIGH: We need that
information. You're supposed to be 2,500 feet
away from another gasoline station and you're
considerably closer than that. You need that
measurement also.
MR. MILLER: with regard to
impervious use, we have 74 percent as opposed to
75 percent maximum, so we are under the maximum.
CHAIRMAN LEHIGH: You are under.
MR. FANUELE: You're going to have to
present something for all of these easements that
you have. The easements on the back and on the
side, I mean, we need to see something to say that
you have been granted an easement.
MR. PRAGER: There is also an ingress
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and egress easement, that little rectangle?
MR. MILLER: That's correct. Let me
turn the map around (indicating). This is the
area right here (indicating).
MR. PRAGER: Who owns that?
MR. MILLER: That must be Five Star.
MR. GORDON: We will clarify all of
this. We will get that to you. We are going to
get all of the information to you well in advance.
MR. PRAGER: There is also a parking
easement way at the top.
MR. CAPPILLETTI: Nobody has used
them up on top. There is not even a place where
anybody can park. When I had the survey done,
these were put on by the surveyor. This here, I
don't even know who has the easement for parking
here (indicating).
MR. GORDON: We will clarify that.
MR. CAPPILLETTI: At one time I think
the purpose of this ingress and egress was to
service Five Star's property, but they have their
own entrance now. So, you know, I guess they have
their own site plan that doesn't include this. So
it wouldn't come into playas far as that goes.
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All of the blacktop, the curbing and the building
were all existing. That's all existing.
MR. PRAGER: The .53 acres that
you're saying that you can provide, it does not
include these easements?
MR. CAPPILLETTI: No, it does not
include the easement. with the easement I think
it's .83.
CHAIRMAN LEHIGH: What you're
basically aSking for here is a use permit as far
as I can determine.
MR. GORDON: We are requesting area
variances.
CHAIRMAN LEHIGH: There is no special
use permit on that property now, so you don't have
a use for it; right?
MR. GORDON: We are asking to have it
approved under the special use permit, but we have
applied for area variances to get that special use
approval. The planning board, I believe, was
addressing the special use permit issue, and we
are here for the area variance issues for the
planning board.
MR. FANUELE: Doesn't it have to be a
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permitted use on that property before you get a
special use permit for it?
MR. CAPPILLETTI: It's an approved
use in that zone.
MR. GORDON: It is a permitted use
under that zone.
MR. CAPPILLETTI: We're here for area
variances.
MR. GORDON: All the planning board
requires from your board is the area variances.
That's what they referred us here for.
MR. FANUELE: If the property does
not allow a gas station to go there, correct me if
I'm wrong, that means that you would need some
type of authority to say you can put a gas station
in there before we give you an area variance.
MR. GORDON: The special use permit
section of the Wappingers zoning code allows a gas
station and filling station use on that property.
MR. FANUELE: The last time you were
before us, that wasn't true. So I don't know how
that's true now.
MR. GORDON: That's my understanding.
MR. CAPPILLETTI: The zone we're in
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allows gas stations.
MR. PRAGER: Gas filling stations in
the HP zone need a special use permit.
MR. GORDON: And that's what we are
seeking from the planning board.
CHAIRMAN LEHIGH: So then the use is
allowed in HP.
MR. FANUELE: The problem is the 250
feet and the 1,000 feet.
MR. GORDON: We are going to
demonstrate to the board with further submission
because of the unique nature of this property,
we are conducting studies and we brought in a
planner, Mr. Neil Wilson, who is the chairperson
of the Zoning Board of Appeals up in poughkeepsie,
to assist us on this site -- to help demonstrate
the reason why this site is a unique situation and
these area variances should be granted for this
property. So that's one of the studies that we
are performing at this time.
Any other questions you have, certainly I
would like to address those in further written
submissions to the board before any public hearing
is held.
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MR. PRAGER: I have one. Is this
going to be strictly a gas filling station or is
this going to be a convenient mart like we see in
almost every other gas station?
MR. GORDON: There will be a
convenient mart aspect to it.
MR. PRAGER: So it will be retail
sales also?
MR. GORDON: Right.
CHAIRMAN LEHIGH: There is no other
use that you can have on that property where you
can make a profit outside of a gas station?
MR. CAPPILLETTI: This place has been
sitting there for all of those years.
CHAIRMAN LEHIGH: I don't care about
that. Let me say this to you: I really want to
know why you can't put something else in there
like a car wash, a bakery shop or whatever that
you could put it in there and make some money on?
MR. CAPPILLETTI: Most of those uses
don't fit. They just don't fit on the property.
I even had the drug store on the property, but the
property was too small. We tried to purchase the
property next door to try to put it all together.
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CHAIRMAN LEHIGH: That makes a little
more sense.
MR. CAPPILLETTI: For six months we
went back and forth. I don't know if they came
before you, but I know they were in the town and I
gave them six months just to investigate and try
to get it done, whatever they could do. They
spoke to the guy next door, they went back and
forth, and they just couldn't do it. I think
that's the one that ended up in the village, the
Eckerd's.
CHAIRMAN LEHIGH: I realize that you
don't have to provide us with the same information
that you may have to provide to the planning
board.
MR. GORDON: What is the information
that you need? Anything that you're interested
in, we will look into providing it to you.
Certainly feel free to tell us.
MR. CAPPILLETTI: The way the
property is situated, it's too small. We even
tried to back into retail and it wouldn't pay for
itself to put a new retail business on the
property. I couldn't get a big enough building to
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be able to pay the mortgage. Even forgetting
about the mortgage that I have already on the
property, if I had no mortgage, I wouldn't be able
to put up a building to support the building
itself.
CHAIRMAN LEHIGH: Let me ask you one
more question. Did you buy that property after
the special use permit was lapsed on that
property?
MR. CAPPILLETTI: No. It wasn't our
intent to use it for a gas station. It was going
to be used for car sales. I got involved after
the place had closed, because I guess an
investigation showed that they had a problem with
the furnace in the place and that's why it closed
down. The DEC was involved at that point and
before they would let them open up again, they had
to do a cleanup of the property. So they were
walking away from the property because they
couldn't do it. I was approached by a real estate
agent about the property to find out if I was
interested in the property, and to me it looked
like a great spot for a car sales place, and that
was my main business at the time, and that's how I
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got involved with the property.
Before I got involved, I met with the DEC and
asked them what they would require to cleanup,
this property. They told me what they would
require so I made the deal. I got involved and I
figured I'm going to come in and do a clean up
walk right in and get my business going. At the
same time the town was going through a planning
change, I think it was one acre to five acres on
car sales, and I just got caught right up in the
middle of that.
As far as the cleanup I did on that property,
I don't even know if you have the history on it.
CHAIRMAN LEHIGH: I remember.
MR. CAPPILLETTI: I had nothing to do
with the property before, but at that time I said
for the price of the property and the price of the
cleanup, I will take a shot on doing this. My
deal with DEC regarding the remediation of the
site, which they witnessed, was I removed all of
the tanks, I removed all of the dirt, I piled up
the dirt, I did the monitoring. Then they tested
the dirt and they gave me a clean bill of health
on that property, not that any of that area is
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clean, but I have a letter that's been submitted
to the town saying that all of the remediation
that can be done has been done on that property.
MR. GORDON: The Department of
Environmental Conservation is going to continue to
do that monitoring at the filling station.
MR. PRAGER: It wouldn't hurt to give
us that form also that states that, if you would.
MR. CAPPILLETTI: Yes, I will submit
them, from the first to the last form, stating
that it's done.
MR. PRAGER: Can you also submit the
date that you purchased the property, the exact
date?
MR. CAPPILLETTI: Yes. When I did
the cleanup, they were on the site.
CHAIRMAN LEHIGH: Basically what
you're telling me is that before you got the
property, the special use permit had lapsed.
MR. CAPPILLETTI: No.
CHAIRMAN LEHIGH: It hadn't?
MR. CAPPILLETTI: No, it had been
grand fathered for two years and two years didn't
pass.
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CHAIRMAN LEHIGH: So in other words,
if you at that time had come in and started to
redo it, you could have done it at that time?
MR. CAPPILLETTI: That's right. My
intention was for car sales, but things were
changed at that time. When your town did the
planning change, I wasn't aware of it, and then
they came out with the five acres and now even
that's been changed back down to, I think, three.
MR. GORDON: What Mr. Cappi11etti
wants to do now is really improve the site. I
think you all know that the site is not a very
visually pleasing site, and obviously this would
greatly improve that aspect of it as well as the
cleanup that he's done in the past.
CHAIRMAN LEHIGH: I think we really
should have our planner take a look at it too.
MR. PRAGER: That's a good idea.
CHAIRMAN LEHIGH: This is not going
to be something simple where you're just going to
walk in and walk out with an okay.
MR. GORDON: We understand.
MR. CAPPILLETTI: I understand.
MR. FANUELE: In all of these
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easements that you have next to Five Star, is
there any way you can purchase the part that you
need an easement for?
MR. CAPPILLETTI: I don't have to
purchase it. We have the easement over it. He
couldn't just split up his property, because he
would have to go through a site plan change. The
easement gives me the right to use that portion of
the property and all I would actually be using is
half, or three spaces.
CHAIRMAN LEHIGH: I think they're all
pretty tight in there. Tire King is in there.
MR. CAPPILLETTI: Tire King is up
behind us.
CHAIRMAN LEHIGH: I don't think that
there is any property that they can let go of
either.
MR. FANUELE: I'm saying for the
easement, he's using the easement pretty heavily
as an entrance, and that piece of property
couldn't be used for anything else but the
entrance, so if you can just purchase that strip,
then it would be yours.
MR. CAPPILLETTI: Again, it basically
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is mine. I have the right to that property. He
can't say anything if I want to use that property;
you know what I'm saying? If he sells it to me,
he would have to change his site plan to make me
able to do that.
MR. FANUELE: I think this question
was asked before, but does the area of the site
include the easements or does it not include the
easements?
MR. GORDON: No, it does not.
MR. FANUELE: So with the easements,
it would be larger?
MR. CAPPILLETTI: Yes, I think it's
83 already. The last time we were here for the
variances, we all felt that it was going through.
We came to the meeting -- and I know a few of you
gentlemen were on the board at that time -- there
was no opposition from the public, there was
absolutely no opposition. I can't speak for now,
I don't know what has changed and who moved where,
but we had no public opposition to this. There
was one letter from one person that came in, and
it had to do basically with water quality and not
the actual use of the property. The reason we
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were turned down at that time was because
something was changed in the laws, and as the
zoning laws are now, that wouldn't stand in our
way.
CHAIRMAN LEHIGH: Well, you know, if
you look at this, you're asking for some rather
large variances. You figure 2,500 feet from
another gas station, and we are supposed to bury
that for you? I will bet you're not 200 feet from
the other gas station. 1,000 feet -- we don't
even know what you are from residential, but that
also requires a variance. The size of the lot,
you're off 200 feet on the depth and you're
providing 153 feet.
MR. CAPPILLETTI: I understand.
MR. GORDON: Once again, that's due
to the unique nature of the property.
CHAIRMAN LEHIGH: You're asking for a
lot. Do you understand what I'm saying?
MR. CAPPILLETTI: I understand. The
three existing non-conforming is basically what
the lot is, I can't change that. The distance to
another gas station, there is no question that we
are closer.
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CHAIRMAN LEHIGH: We suggested before
that you go in front of the town and talk to the
town board: did you do that?
MR. GORDON: We looked into that
issue, and at this time the town board isn't
making any changes to those particular sections of
the code that the person we spoke to was aware of.
CHAIRMAN LEHIGH: We just denied
somebody else who was asking for an awful lot less
than what you're asking for. This board just
denied a Stewart's Shop.
MR. GORDON: We are hopefully a
different situation than the Stewart's.
I.H.O. LEHIGH: Well, everyone is a
different to a certain degree.
MR. CAPPILLETTI: That gas station
was operating for twenty-five years before 7-11
was in there. There was a Shell station on the
other property, so they had two full-fledged gas
stations running, so as far as the impact to that
highway business area, I mean, the impact for that
type of use is not that great of an impact. I
understand when that happened on 376, when I was
before you guys and I was turned down and that was
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it, because there was a gas station across the
street, so on 376 I can understand that. But
there was a highway business here and it was a gas
station for twenty-five years: the road, if
anything, has been improved from what it was when
I first purchased the property ten years ago.
They put in an extra turning lane, so as far as
the impact to anybody, I don't think it will be
that great.
MR. GORDON: We believe we can meet
the standard, that the benefits outweigh the
detriment to the community for these types of
variances. We will present that to you at the
public hearing as well as the written submissions.
At this time, we would like to address the
SEQRA issues as far as trying to move this ahead
to the public hearing. It's an unlisted site and
we would request that you take a coordinated
review of the site with the zoning board as lead
agency.
CHAIRMAN LEHIGH: You're not in front
of the planning board now?
MR. GORDON: We are not. They have
referred us to the zoning board to get these area
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variances.
CHAIRMAN LEHIGH: Usually they're the
one who handles the SEQRA first, and we have to
get an okay from them before we can do anything
with that.
MR. GORDON: My understanding is that
you can declare yourself as lead agency and get a
recommendation from the planning board, and that's
what we would be requesting from your board.
CHAIRMAN LEHIGH: We will have to
check with the planning board then, because we got
into trouble with them before with SEQRA and if
they're lead agency, we can't do anything with
them, we have to wait.
MR. GORDON: The planning board has
not declared themselves as lead agency yet. We
request that you do that. I don't know if you
need any further submissions for you to move ahead
with that.
CHAIRMAN LEHIGH: I think what we
will do is get the rest of the information and we
will set up another workshop. Then at that time,
before we go to a public hearing, we will decide
who is going to be lead agency and look at the
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environmental statement.
MR. PRAGER: We should have an
application that's correct with all of the
variances on it.
CHAIRMAN LEHIGH: Yes, definitely.
This isn't prepared the way we usually do it.
MR. GORDON: Which one do you have?
MR. CAPPILLETTI: I know there was a
change in the zoning administration.
CHAIRMAN LEHIGH: We have had a lot
of changes around here.
MR. PRAGER: It should be on a
variance form like this instead of a letter
(indicating). You should have it on a form like
that.
MR. GORDON:
MR. PRAGER:
MR. GORDON:
MR. PRAGER:
We just attached it.
That's fine.
We can resubmit it.
Is the first variance
Article 5, section 240.18?
CHAIRMAN LEHIGH: This one is 240.18.
MR. PRAGER: Okay. That's all I
wanted to check.
CHAIRMAN LEHIGH: How long do you
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need to get some other information to us?
MR. GORDON: When is the next
workshop? When are you scheduling the next
workshop?
CHAIRMAN LEHIGH: The next workshop
is going to have a special meeting on the 21st,
but you don't want to get involved with that.
That's the Cellular One hearing. The next
regularly scheduled meeting, I believe, is the
28th.
MR. GORDON: How far in advance do
you want the information?
CHAIRMAN LEHIGH: If you want to make
it then, you can just call the secretary and let
her know, and she will put you on the 28th, or you
could go to December 12th.
MR. GORDON: If I can just review it
with you. I have your questions regarding the
easements, the distances from the properties,
basically the history of the site and the day it
was purchased. Did you want to have your planner
take a look at the property before the next
meeting?
CHAIRMAN LEHIGH: I'm going to ask
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him if he can clear some time to take a look at
this.
MR. GORDON: We would like to come
down whenever he wants to do that.
CHAIRMAN LEHIGH: I would have to
call him and find out what is good and get back to
you with that.
MR. GORDON: We will revise the
application so it sets forth all of the different
variances requested.
CHAIRMAN LEHIGH: Probably the 12th
would be the better date. It will give you more
time. If you want to, you can put it on the 28th.
MR. GORDON: Why don't we put it down
for the 12th right now. I think that would be
best.
CHAIRMAN LEHIGH: We will put it down
as workshop, and then you can also go to the 26th
for a public hearing if we have got everything
done at that time.
MR. CAPPILLETTI: Information-wise
you want the planner to come and give you more
information?
CHAIRMAN LEHIGH: I want him to take
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a look at the site.
MR. CAPPILLETTI: I'm talking about
the guy we are hiring to make a presentation, do
you want that at the workshop or when do you want
that?
CHAIRMAN LEHIGH: No, at the public
hearing.
MR. GORDON: Generally, how long
before the workshop do you like to have the
information submitted?
CHAIRMAN LEHIGH:
Well, it takes
We like to review it
awhile to get it out for us.
before we come to the meeting.
MR. GORDON: Is two weeks okay?
CHAIRMAN LEHIGH: That's why I
suggested the 12th, so as soon as you can get it
in, get it in.
MR. PRAGER: Then it's got to get
mailed to us.
CHAIRMAN LEHIGH: We need time to go
over it and everything else.
MR. GORDON: And if I could request
that you address the SEQRA issue and your lead
agency status, that would be good.
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CHAIRMAN LEHIGH: I don't really like
to do that until I check with the planning board
to make sure that they're not.
MR. GORDON: Check with whoever you
need to check with.
CHAIRMAN LEHIGH: Well, do you know
whether they have declared themselves as lead
agency or not, on the planning board?
MS. LUKIANOFF: I haven't heard
anything like that.
MR. GORDON: They had a brief
meeting.
CHAIRMAN LEHIGH: How much on the
environmental statement have you got done, or you
don't believe you need any?
MR. GORDON: We have done the short
form right now.
CHAIRMAN LEHIGH: You haven't done
the long form?
MR. GORDON: No, but we can do that.
CHAIRMAN LEHIGH: I would imagine
that you're going to eventually end up before the
planning board if you get an okay here, and you're
going to have to do a long form for them, I would
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imagine. So you might just as well do it for us.
MR. GORDON: If you're lead agency
and you request it.
CHAIRMAN LEHIGH: I will entertain a
motion for the Zoning Board of Appeals to be the
lead agency.
MR. FANUELE: I think we are too
premature to be lead agency.
CHAIRMAN LEHIGH: They don't want to
do it right at this time.
MR. GORDON: We can take it up at the
next workshop. We will have time. We will submit
the long form EAF.
CHAIRMAN LEHIGH: You're going to do
that anyway. They don't want to do it. So is
there anything else you need?
MR. PRAGER: Not that I can think of
right now.
CHAIRMAN LEHIGH: Okay. I guess
that's it for right now.
MR. GORDON: Thanks very much.
CHAIRMAN LEHIGH: Thomas Genova.
MR. GENOVA: Good evening. I am here
to try to get a variance for a side yard setback
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in the town in order to install an above-ground
pool. We have an issue that puts it too close to
the house and away from the site property line.
We have an availability of eighteen feet where we
wouldn't have to disturb the existing house, which
has previously been built onto the house. There
is nowhere else on the property that we can
install the pool.
CHAIRMAN LEHIGH: Is that because of
the topography?
MR. GENOVA: Yes, in part. In part
it's the topography and the other part is because
of a privacy safety issue. This is a side back
yard and the only other place we could put it is
in the side front yard, which would be too close
to the road, so for safety and privacy that's
really not good or acceptable. This particular
spot provides some semblance of safety from the
street and also for the privacy of the pool; there
will be a fence at some point.
CHAIRMAN LEHIGH: This pool, I
assume, is not in the ground yet?
MR. GENOVA: Correct. We started to
put it in, we dug the hole, so to speak, and it's
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put in the ground a little bit. We thought we
needed ten-foot setback, but actually we needed
twenty-five feet. So we started the work, and we
stopped the work, and we are here seeking a
variance.
CHAIRMAN LEHIGH: okay.
MR. PRAGER: Who is building the
pool?
MR. GENOVA: Leisure Tech, they're on
Route 376.
MR. PRAGER: Did anybody apply for a
permit? Did you get a permit?
MR. GENOVA: Yes.
MS. LUKIANOFF: They came to me;
because of the building application problem, the
applications come across my desk and that's why I
saw it.
CHAIRMAN LEHIGH: So you denied it
and now they're here?
MR. PRAGER: Good; that's what I want
to make sure of.
MR. GENOVA: We were told we needed
ten feet, and we needed twenty-five.
MR. FANUELE: How much is dug?
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MR. GENOVA: Well, actually a little
bit of the area is into the ground, but the whole
thing was done.
MR. FANUELE: You said that you're on
a corner lot: where is the street, on this side or
this side (indicating)?
MR. GENOVA: The street comes up like
this (indicating).
MR. FANUELE: You said you're on a
corner, so do you have streets on both sides?
MR. GENOVA: It's more of a T. We
are at the top of the T, so to speak, the road
goes this way and the road goes that way
(indicating).
MR. FANUELE: In other words, the
road only goes on one side of your property?
MR. GENOVA: Correct, right along the
front corner of the T. It's not on the corner
across.
CHAIRMAN LEHIGH: Well, it's already
dug, so we can go out and take a look at it and we
will see right where it's at.
MR. FANUELE: Yes, I would like to
see it.
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CHAIRMAN LEHIGH: So, do I hear a
motion to be lead agency of this one?
MR. WARREN: So moved.
MR. FANUELE: Second.
CHAIRMAN LEHIGH: All in favor?
MR. diPIERNO: Aye.
MR. WARREN: Aye.
CHAIRMAN LEHIGH: Aye.
MR. PRAGER: Aye.
MR. FANUELE: Aye.
CHAIRMAN LEHIGH: On Saturday, we
will come out and do an inspection and take a look
at it at 9:30.
MR. PRAGER: I can't make it at 9:30.
We have got a few things going on.
MR. FANUELE: Can you make it
earlier?
MR. PRAGER: I can make it at 7:00.
But I will just go on my own.
MR. FANUELE: So what is it, 9:30?
MR. diPIERNO: Yes, 9:30.
MR. PRAGER: I will come probably
some evening. You don't necessarily have to be
there. I just want to see what the board does.
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CHAIRMAN LEHIGH: We will take a look
at it on saturday and put you down for the meeting
on the 28th; all right?
MR. GENOVA: That's fine. Thank you,
gentlemen. Good night.
CHAIRMAN LEHIGH: Good night. Is Mr.
Tomlins here yet?
(No response)
CHAIRMAN LEHIGH: I guess he's not
coming. Does anybody else have anything to say?
(No response)
CHAIRMAN LEHIGH: Do I have a motion
to close the hearing?
MR. PRAGER: So moved.
MR. WARREN: Second.
CHAIRMAN LEHIGH: All in favor?
MR. diPIERNO: Aye.
MR. WARREN: Aye.
CHAIRMAN LEHIGH: Aye.
MR. PRAGER: Aye.
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MR. FANUELE: Aye.
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CHAIRMAN LEHIGH: Thank you.
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(Whereupon the hearing was closed
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at 8:15 p.m.)
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C E R T I F I CAT ION
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I, KIMBERLY BURKE, a Court Reporter and
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Notary Public in and for the state of New York, do
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hereby certify that I recorded stenographically
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the proceedings herein at the time and place noted
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in the heading hereof, and that the foregoing is
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an accurate and complete transcript of same, to
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the best of my knowledge and belief.
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