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1998-09-22Nftw AGENDA Town of Wappinger Zoning Board of Appeals MEETING DATE: September 22, 1998 TIME: 7:30 PM Approval of August 25, 1998, minutes. DISCUSSIONS Town Hall 20 Middlebush Road Wappingers Falls, NY Robert Tompkins - Appeal No. 98-7027 - Seeking an appeal, as an aggrieved person, regarding the Zoning Administrators decision to deny a building permit for property located on Route 9 in the Town of Wappinger. (Previously known as the Rafters) 2. Piqwon - Appeal No. 98-7028 - Seeking a use variance for property located at 228 Myers Corners Road in the Town of Wappinger. 3. Bil Mac - Appeal No. 98-7029 - Seeking a use variance for property located on 178 Route 82 in the Town of Wappinger. 4. Hulsair - Appeal No. 98-7030 - Seeking a use variance for property located on 269 Myers Corners Road in the Town of Wappinger. terW MINUTES Town of Wappinger Zoning Board of Appeals September 22, 1998 Minutes Members Present Members Absent Others Present Mr. Prager: Chairman Mr. Fanuele: Member Mr. diPierno: Member Mr. Close, Zoning Administrator SUMMARIZED Town Hall 20 Middlebush Road Wappinger Falls, NY Mr. Lehigh: Vice Chairman Mr. Warren: Member x..01 J'v 1 1998 MINUTES TO BE APPROVED: August 25, 1998 -- Approved with 1 modification 0 a .r,.. DISCUSSIONS: Robert Tompkins -- Public Hearing Set for November 10, 1998 Piqwon -- Workshop to be held October 27, 1998 Bil-Mac Kitchens -- Public Hearing Set for October 13, 1998 Schnorr -- Needs to submit an application Hulsair -- Workshop Rescheduled for October 13, 1998 MINUTES Mr. Fanuele requested the August 25, 1998, minutes be corrected to say Mr. Prager was absent for that meeting. He made a motion to accept the minutes with that modification. Mr. Warren seconded the motion. Vote: All present voted aye except Mr. Prager since he was not present for that meeting. DISCUSSIONS 1. Robert Tompkins - Appeal No. 98-7027 - Seeking an appeal, as an aggrieved person, regarding the Zoning Administrators decision to deny a building permit for property located on Route 9 in the Town of Wappinger. (Previously known as the Rafters) **AW Mr. Hanig, Esq. requested this item be placed at the end of the agenda since the applicant was not present. V.. ..r Town of Wappinger Zoning Board of Appeals Summarized Minutes - Sept. 22, 1998 Page 2 2. Piqwon - Appeal No. 98-7028 - Seeking a use variance for property located at 228 Myers Corners Road in the Town of Wappinger. Mr. Pete Elder, Owner, Mr. Hanig, Esq., and Mr. Railing, PE, , were present. Mr. Hanig, Esq. stated besides this property there are some other properties that have similar problems located on Myers Corners Road. He was hoping to come to a common resolution of the use of the properties. Mr. Prager stated each application is different. Therefore, the Board will discuss them separately. Mr. Hanig, Esq. stated the owner is requesting a use variance for a contractor's yard for a mixed use parcel. Mr. Elder explained heavy equipment is stored at various times until it is needed for the next job. He stores building materials which are only for their use. They have metal studs, ceiling tile, etc. Approximately 80% is stored inside. Mr. Lehigh asked if they store any gravel. He asked if the equipment is repaired on the premises. Mr. Elder said they do not store gravel. They service their equipment on site. Mr. Lehigh questioned if the backup horns on the equipment are blaring all day long. Mr. Elder said no. A lot of the equipment does not have backup horns. Previously, Mr. Close had expressed *"' concern about that issue also. Mr. Elder added he entered into negotiations to purchase the property in March of 1998. He was unaware of any zoning problems. Their closing was June 5, 1998. Mr. Hanig, Esq. noted a letter dated May 13, 1998, from the Zoning Administrator, regarding a contractor's business is not permitted in an NB Zone. Mr. Elder added they moved in prior to them buying the property. Mr. Prager stated that means they knew it was illegal prior to them purchasing the property. Mr. Roberts asked when they started making improvements. He asked the applicant to identify the heavy equipment. Mr. Elder said they have excavators, dozers, back hoes and cranes. He has two cranes; 18 and 75. He has a couple dump trucks. Mr. Fanuele asked what is the property currently being used for. Mr. Hanig, Esq. state it is a mixed use parcel which included a junkyard, an auto dealership, offices, motor vehicle repair. Mr. Fanuele stated they are requesting to go from a non -conforming use to another non -conforming use. .r0' Town of Wappinger Zoning Board of Appeals Summarized Minutes - Sept. 22, 1998 Page 3 Mr. Lehigh added they propose to continue the auto dealership, parts and material storage, carpenter shop, paint shop, mechanic work, inside and outside warehousing. Mr. Elder stated the body shop isn't there anymore. Mr. Hanig, Esq. stated the junkyard had permits. They have a salvage yard license dated December 31, 1994, tc Arty Lieberman. They have a New York State license issued on 4/20/95 for A & J Parsons which expired 5/31/97 for a scrap yard. He stated the auto sales, offices, mortgage company, and administrative offices for B & D Contracting are uses that will continue. Mr. Railing, PE, added there will be no vehicles being repaired as a result of the dealership. Mr. Prager reminded the applicant and his professionals what is required for a use variance to be granted. Mr. Hanig, Esq. stated they do not plan to continue the junkyard which is a non -conforming use. Mr. Elder is seeking a contractor's yard for the storage and repair of vehicles, equipment and material. Mr. Prager requested the applicant to submit a long EAF form for the next meeting. Mr. Roberts, Town Attorney, clarified that Mr. Hanig, Esq. has stated a previous license was issued for a salvage yard. It expired May 31, 1997. There was another license issued in December of 1994. One license was issued by the State of New York for a scrap yard. The other was license was issued by the Town of Wappinger. He asked Mr. Elder to clarify what licenses were in existence at the site at the time Mr. Elder "" purchased the property. Mr. Elder did not have that information. Mr. Roberts, Town Attorney, requested that information for the next meeting. Mr. Wery, Town Planner, stated Mr. Close's letter references the salvage yard had been inoperable for 2 years. Mr. Close, Zoning Administrator, stated there were violations that Mr. A. Lieberman was supposed to clean up. However, that did not happen. He did not know if the Town had renewed the permit. Mr. Roberts, Town Attorney, clarified that there was junk on the property from a prior owner, but it wasn't operating necessarily as a junkyard. Mr. Railing, PE, stated the property is gradually being cleaned up. The Board requested copies of all correspondence sent by Mr. Close. Mr. Prager requested a copy of the closing date of sale. Mr. Fanuele reiterated that when a non -conforming use ceases, they can not add another non -conforming use in its place. He felt nothing else is an issue since they can not put a different use on the property. The Board can �.• not give a use variance. Town of Wappinger Zoning Board of Appeals Summarized Minutes - Sept. 22, 1998 Page 4 Mr. Hanig, Esq. stated there is a question as to whether the non -conformity truly was abandoned since all the junk remained on the property. Mr. Prager suggested the Board should hold another workshop so the applicant has time to submit all of the information the Board requested. He suggested the workshop could be held on October 27"'. Mr. Hanig, Esq. was in agreement. Mr. Wery, Town Planner, suggested the applicant should submit a formal list of the equipment and the operation. Mr. Railing, PE, stated he will submit a long form EAF. Mr. Hanig, Esq. will respond to the 4 reasons for a use variance. Mr. Lehigh made a motion to adjourn the workshop to October 271'. Mr. Warren seconded the motion. Vote: All present voted aye. 3. Bil-Mac Kitchens - Appeal No. 98-7029 - Seeking a use variance for property located on 178 Route 82 in the Town of Wappinger. ""' Mr. McCarthy, property owner, was present. Mr. McCarthy explained they came in to the Town for a building permit to add an addition to the building for storage. They found out they have a problem with Zoning. He stated they have a c/o, from the Town of Wappinger, to sell retail as of 1988. The c/o is signed by Mr. Classey (former Building Inspector). They explained that when they went to get a permit to add an addition onto the building. Two days later they received a letter dated July 17, 1998, from Mr. Close. It read, "Violation of the Town of Wappingers from Article IV, Section 420.2-37 of the Local Laws. At the premises described it is illegal to operate a contractor's business in an HM Zone." Mr. Roberts, Town Attorney, asked what they use the existing buildings for. Mr. McCarthy stated they sell kitchen cabinets. They make the cabinets in Pennsylvania. They sell or install kitchens. Mr. Close, Zoning Administrator, stated he felt they are a contractor since they install the kitchen cabinets. Mr. Wery, Town Planner, felt the issue is a matter of interpretation of whether it is a regular retail service use or a contractor's yard. Mr. McCarthy added everything is stored indoors. ".. Mr. Roberts, Town Attorney, requested the Board to go into Executive Session. He asked the applicants to wait. He asked the applicant to clarify if they manufacture on site. Town of Wappinger Zoning Board of Appeals Summarized Minutes - Sept. 22, 1998 Page 5 Mr. McCarthy said no. Mr. Roberts, Town Attorney, stated clients come to the applicant's store. Their clients look at the kitchens. The applicant designs them and orders them. They come into their warehouse and they deliver and install them onsite. Mr. McCarthy said yes. They have been in business since 1983. Mr. Prager stated they would hold the Executive Session at the end of the meeting. NOT ON THE AGENDA Mr. Schnorr - Interrupted the meeting requested to address the Board. He said Mr. Close also sent letters to him requesting him to get a use variance. He felt he does not need it. Mr. Close's letter stated he is running a contractor's yard in an NB Zone. There was also a problem with his sign. He was looking for some clarification. He stated he is running a plumbing and heating business and he has a c/o for that. Mr. Roberts, Town Attorney, suggested Mr. Schnoor could appeal Mr. Close's decision/letter by requesting an interpretation. RECONVENED Robert Tompkins - Appeal No. 98-7027 - Seeking an appeal, as an aggrieved person, regarding the Zoning Administrators decision to deny a building permit for property located on Route 9 in the Town of Wappinger. (Previously known as the Rafters) Mr. Hanig, Esq. was present. (Mr. Tompkins did not show up for the meeting.) Mr. Hanig, Esq. explained there is an existing auto body shop, a 3 family residence and a bar/restaurant previously known as the Rafters. Prior to the bar there was a carpet store. In 1994, shortly after the Rafters went out of business, a building permit was issued to a new perspective tenant that never came about. That permit expired around 1996. The permit was to make repairs to the existing building. Then, Mr. Tompkins himself applied for a building permit to make repairs to the existing building. That permit was declared null and void by the Building or Zoning Inspector. The owner tried again to apply for a building permit to make repairs to the building and he was denied. They would not accept the application on the basis that he was not allowed to do that. That is why they are appealing. He said they are not proposing to use the building for any use that is not conforming within the district. He said they only want to make repairs to the building so they can use it for a conforming use within the district. He said the building (structure) is non -conforming because the building is closer to the road than it should be due to road taking by the NYS DOT. He stated Mr. Railing, PE, was involved in an application before the Planning Board to try to relocate the structure back farther. However, they ended up in a disagreement with the Planning Board over relocating the structure because the Board wanted the structure relocated to another place which would be tremendously expensive for Mr. Tompkins. The owner decided to repair and use the original structure. Mr. Lehigh asked what repairs would be done to the roof and the facade. Mr. Hanig, Esq. stated they would probably have to replace some of the underlayment that needs repair. They would replace the shingles on the roof. They do not plan to enlarge the building. yr ..nr" Town of Wappinger Zoning Board of Appeals Summarized Minutes - Sept. 22, 1998 Page 6 Mr. Railing, PE, said they will need to paint or side the building, nothing structural. Mr. Lehigh asked about upgrading the electric. Mr. Hanig, Esq. said that will have to be done. It would have to comply with the current code. Mr. Prager stated Mr. Morgan's letter dated July 10, 1998, brings up several issues. He brought up the issue of the non -conforming `use' of the land. If it ceases for more than 2 years or is changed to a conforming use, any future use shall conform with all provisions of the Zoning Law. Mr. Hanig, Esq. stated they do not intend to make the building a non -conforming use. He felt the bar and restaurant was conforming at that time. Mr. Lehigh stated they have some paperwork showing they were granted a variance. It couldn't have been conforming. Mr. Fanuele felt the restaurant was on a separate parcel. The non -conforming use of the parcel is the multiple uses that are there. One of those uses ceased. The question is, can that use be reactivated or does it cease because it was non -conforming and the use has ceased. Mr. Hanig, Esq. stated under mixed uses, No. 53 in the Zoning Law permits a grouping of attached or detached structures containing a mix of residential dwelling units and one or more of the following uses; retail sales, **NW personal or business service establishments, professional or business offices and banks. He asked how the Building Inspector issued a building permit in 1994 and then issued another permit. Then, a couple of months later, when Mr. Tompkins gets into a dispute with the Planning Board, its decided to revoke the building permit because somebody is upset that he wouldn't agree to what the Planning Board wanted. Mr. Roberts, Esq. requested a detailed narrative (parcel history). He felt the issue is, to what extent the building is structurally viable. He questioned how Section 400.5.8, Item Nos. 1 & 2 came into play in the Zoning Administrator's decision. He said that is part of the issue for the ZBA to determine. Mr. Hanig, Esq. said he will subpoena the records for the hearing of the Building Inspector in terms of the building permits that he previously issued. He said the owner wants to use the building as it presently is. He only wants to make repairs and use it in a conforming manner. He said he has never heard of a Town saying to an owner that they have to tear their building down because it has not been used in the last 2 years. He said they are appealing, what is in effect an argument, that there is a condemnation of a building just because it has not been used in the last 2 years and now they are not allowed to repair the building. He felt it all has to do with politics between the applicant and the Planning Board because he disagreed with them when they told him to move the building back where they want it. Rather than moving the building back to where it is economically feasible to do it. Mr. Prager asked for the Planning Board minutes for this project. Mr. Roberts, Town Attorney, suggested the Board could request a report and recommendation from the r.. Planning Board so the Board can have it in writing. He asked Mr. Close to send a letter to the Planning Board and notify Mr. Hanig when it will be on the Planning Board agenda. V.rr Town of Wappinger Zoning Board of Appeals Summarized Minutes - Sept. 22, 1998 Page 7 Mr. Hanig, Esq. said yes, he wants to be present at the Planning Board meeting. He wanted it known that the same Attorney that represents the Planning Board is also representing the Zoning Board. Mr. Roberts, Town Attorney, explained that at the Planning Board meeting Mr. Railing was proposing to relocate the building outside the confines of the setback requirements. The Planning Board said they would not recommend a reduction in the setback requirements. The Planning Board did not prohibit Mr. Tompkins from coming to the ZBA seeking a variance. He questioned if the Planning Board could approve a site plan where there is a violation of setback requirements. Mr. Fanuele asked why the ZBA would need to involve the Planning Board if the applicant is proposing to use the building as it is. He said the ZBA should be deciding if the non -conforming use ceases, can he continue the use. Mr. Roberts, Town Attorney, said he wanted the Planning Board's position because of the statements made by Mr. Hanig. Mr. Railing, PE, said it comes down to a disagreement with the Planning Board. He said they tried to negotiate with the Planning Board and it came down to the last meeting when it was agreed by both parties that they could not come to an agreement. They looked for a recommendation from the Planning Board before they came to the Zoning Board to ask for the variance. He said at the end of the meeting he made a statement that the owner will continue to build because they have a building permit. The next day the building permit was taken away. Mr. Wery, Town Planner, said the reason that was done was in accordance with a section in the Zoning Law. It r` says any reconstruction of a non -conforming building shall be subject to site plan approval by the Planning Board. Mr. Roberts, Town Attorney, said the permit was issued in violation of that section. Mr. Lehigh stated they came before the Planning Board to move the building and now they are coming to the Zoning Board for reconstruction. He said the Planning Board was okay with the reconstruction, but they did not okay where they wanted to move the building. Mr. Hanig, Esq. stated they went to the Building Dept. because the Planning Board has nothing to do with it at that time. Mr. Roberts, Esq. said that is what they disagree with. He stated Section 400.5.8.2 says, "The reconstruction of all non-residential non -conforming buildings shall be subject to site plan approval by the Planning Board." He said it has been presented that the building is in substantial need of repair. He said in order to get a building permit you will need a site plan. Nobody knew that a building permit had been previously issued and apparently was issued in violation of this section. He said they may want a combination interpretation and/or request relief from the Building Inspector's decision. Mr. Railing, PE, said they are not reconstructing the building. He felt that is an inappropriate statement. They only want to repair the building. They do not want to tear the building down. In his mind, reconstruction means tearing the building down. Mr. Fanuele said they would need to go back to the Planning Board for site plan approval. w •..r Town of Wappinger Zoning Board of Appeals Summarized Minutes - Sept. 22, 1998 Page 8 Mr. Hanig, Esq. said that could be. He said when he finds a prospective tenant for the building, then the tenant may need to go to the Planning Board for site plan approval. He requested a public hearing be set. Mr. Prager suggested November 10, 1998, for the public hearing. He set Saturday, October 3, 1998, 9:00 AM, for a site inspection. Mr. Hanig, Esq. and Mr. Railing, PE, agreed to November 10, 1998, for the public hearing. Mr. Wery, Town Planner, stated the Board does not have to declare Lead Agency because it is an unlisted action. Mr. Lehigh made a motion to reserve their right to make a SEQR determination until after the conclusion of the public hearing which has to be stated in the notice of public hearing. Mr. Warren seconded the motion. Vote: All ayes. 4. Hulsair - Appeal No. 98-7030 - Seeking a use variance for property located on 269 Myers Corners Road in the Town of Wappinger. Mr. Hulsair was not present. Mr. Lehigh made a motion to reschedule the workshop for October 13" for this project. Mr. Warren seconded the motion. Vote: All present voted aye. Mr. Lehigh reminded Mr. Close to notify Mr. Hulsair by way of a certified letter. RECONVENED Bil-Mac Kitchen - Appeal No. 98-7029 - Seeking a use variance for property located on 178 Route 82 in the Town of Wappinger. Mr. Prager explained that Bil-Mac was No. 3 on the agenda. However, this item was adjourned to the end of the meeting so as an executive session could be held. EXECUTIVE SESSION Mr. Lehigh made a motion for an Executive Session. Mr. Fanuele seconded the motion. Vote: All present voted aye. Town of Wappinger Zoning Board of Appeals Summarized Minutes - Sept. 22, 1998 Page 9 Mr. Lehigh made a motion to reopen the meeting. Mr. Warren seconded the motion. Vote: All present voted aye. Mr. Lehigh stated the public hearing for Bil-Mac will be held on October 13, 1998. The SEQR determination will be withheld until that night. Mr. Roberts, Esq. stated that has to be part of the legal notice. Mr. Lehigh made a motion to adjourn. Mr. Warren seconded the motion. Vote: All present voted aye. MEETING ADJOURNED AT 10:00 Respectfully submitted, Li a Nguyen, Secretary Zoning Board of Appeals Town of Wappinger