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1997-07-08AGENDA Town of Wappinger Zoning Board MEETING DATE: July 8, 1997 TIME -- 7:30 PM Approval of June 24, 1997, minutes. ADJOURNED PUBLIC HEARING Town Hall 20 Middlebush Road Wappinger Falls, NY IN Appeal No. 1244 -- At the request of Presidential Homes of NY, Inc. (Contract Vendee) who are seeking an area variance of Article IV, Section 420.3 — Schedule of Dimensional Regulations — A 50 -foot front yard setback is required, the applicant is showing 35 feet, thus requiring a 15 - foot front yard variance to construct a single family residence on property located on Orchard Drive and is identified as Tax Grid No. 19-6257-01-223557-00 in the Town of Wappinger. The Zoning Board of Appeal declared itself Lead Agency and made a Negative Declaration of Significance for this project on June 10, 1997. DISCUSSION Kenneth & Lisa Fasone - To discuss Appeal No. 1246 requesting a variance to allow encroachment onto a sight easement for the purpose of installing a fence on property located at 1 Robin Lane in the Town of Wappinger. 077 MINUTES Town of Wappinger Zoning Board of Appeals July 8, 1997 Minutes Members Present Mr. Prager: Chairman Mr. diPierno: Member Member Absent Mr. Lehigh: Vice Chairman Others Present Town Hall 20 Middlebush Road Wappinger Falls, NY Mr. Fanuele: Member Mr. Warren: Member APPROVED AUG 12119 I' -M Mr. Graham Foster: Highway Superintendent PLAMIdING BOARD Mr. Donald Close: Zoning Administrator ZONING BOARD OF APPEALS RL Mrs. Linda Nguyen: Secretary to the Zoning Board Mr. Prager: I would like to call the Town of Wappinger Zoning Board of Appeals to order. Roll Call please. ROLL CALL: Mr. Warren: Here. Mr. diPierno: Here. Mr. Fanuele: Here. Mr. Lehigh: Here. Mr. Prager: Here. Mr. Prager: I guess we had a problem with our computer, so we don't have our minutes from the last meeting. We will move right along to the fist thing on tonight's agenda - an adjourned public hearing on Appeal No. 1244. At the request of Presidential Homes of NY, Inc. (Contract Vendee) who are seeking an area variance of Article IV, Section 420.3 — Schedule of Dimensional Regulations — A 50 -foot front yard setback is required, the applicant is showing 35 feet, thus requiring a 15 -foot front yard variance to construct a single family residence on property located on Orchard Drive and is identified as Tax Grid No. 19-6257-01-223557-00 in the Town of Wappinger. The Zoning Board of Appeal declared itself Lead Agency and made a Negative Declaration of Significance for this project on June 10, 1997. Mr. Warren: Motion to reopen the public hearing. Mr. diPierno: Second. Vote: All present voted aye. Mr. Prager: Opposed? So carried. Just for everybody's information, we did adjourn the public *4w hearing at the last meeting in order to verify with Mr. Foster, the Highway Superintendent, if the road in front of the property in question is a Town road. I have two letters here. One where Mr. Foster had talked to Mr. Close and explained about the road. This evening Mr. Foster has vos Town of Wappinger Zoning Board of Appeals Minutes - July 8, 1997 Page 2 brought in a letter. I will read it to you. To Don Close, from Graham Foster, the subject is Ardmore Drive. There is a little confusion on the name here. "The short section of road you referred to in your memo 6/27/97, is maintained by the Town for approximately 30 years. Since normal maintenance of a road for ten years makes it a Town road by use, this section more than qualifies. Our records show the name of this section to be Ardmore Drive. I believe the residents who live on this section also use an address of Ardmore Drive." I know there was some confusion about that at the last meeting. My Wolfe, you might have even brought that up. Did you? Mr. Wolfe: Yes. Mr. Prager: The tax map for some reason shows it as Orchard Drive. It is the right lot. Whether it is the right name on the road now, we are not even sure. It is the right lot that we are talking about. The tax grid is the same. Anything you would like to say Mr. Foster about that? Mr. Foster: I have been in office for 7 % years and I checked with my Forman who has been with the Highway Department for 30 years. It was maintained by the Highway Department when I went in and Tom tells me it was maintained by the Highway Department when he was there. Mainly plowing, sanding, some minor clearing and cleaning in the summer time. It was always a dirt road up until approximately 3 or 4 years ago. At which time, we decided to pave it to try to control some of the drainage on it. That had some modest success and recently we put some more extensive drainage in all the way to the end of the road. So, it is definitely a Town road. I don't know what else I can offer. It is maintained by the Town. Mr. Prager: That is the only question that we really had. We would just like to mention that we also held a site inspection on June 30"' at 6:00. For some reason I was the only one at that time to be there. Mr. Fanuele called me and told me he had made it there the day before. Mr. diPierno had made it there the next day. Mr. diPierno: The day after we had the meeting. Mr. Prager: I don't think there are any new facts that we need to bring up. Anybody think of any? Mr. Wolfe: Just one thing regarding what Mr. Foster said. There were no services in 1987. In terms of did the Highway Department plow snow and sand there, they did. To be very technical, there was really no services sanctioned by the Town at that time in 1987. Mr. Prager: What type of services do you mean? Mr. Wolfe: Snow plowing, sanding, etc. That was on an iffy basis. If the gentleman could get his truck onto that dirt road and he always said if it is too muddy, to this or to that, he was not plowing the road. He didn't want to get in trouble for bringing the truck onto a non Town road. That is what he was concerned with. There have been no services for 30 years. Mr. Prager: We are quite sure at this time that it is a Town road. Town of Wappinger Zoning Board of Appeals Minutes - July 8, 1997 Page 3 Mr. Wolfe: Well, that is my other thing. Is the road dedicated over? Is it supposed to be dedicated over? Mr. Foster: Many of our roads are roads by use. Very often some of the older properties - Spookhill, possibly even North River Road - we do not have deeds for these roads. These were the old dirt roads that were the main highways in the Town of Wappinger many years ago. They were acquired by use over a period of time. The only roads we mainly have dedication for or deeds for are the new subdivision roads that have come in since zoning took over and since the Planning Board has started looking closely at subdivisions. Those we have deeds for. Mr. Wolfe: That is exactly what this is. There were two houses. There was mine at 37 and one at 44. James Devine, the builder at that time when they originally put those house in ... He stopped. He went out of business. Mr. Foster: New York State Law does state that if you maintain a highway for a period of 10 years, it does become a highway by use. That is how we have the right to use all of these highways and maintain all of these highways even though they have never been dedicated. I wouldn't have anymore right to plow Spookhill Road than I would to plow this small section of Ardmore because we have no deed for it, but because we have done it over a period of time it becomes a regular road by use and we do plow it and maintain it and we have done some improvements on it in recent years. It was asked for by the lady who lives on the end. I am not sure what her name is. She had quite a problem there trying to get to her place. I have no doubt 1%W from what you are saying that maybe an individual driver was out there and said he wouldn't do it or something like that. Technically, even at that point that is not his decision. If they had contacted the Superintendent, Ken, at that time, then Ken would have made that decision. Mr. Wolfe: I have dealt with Ken Croshier and I have dealt with him at many times right from the time I moved in there in 1977. There was a gully there at one time. The Town very nicely came in with a little tractor and cut the grass down. The next year I asked him to ... When they didn't come ... He said I am sorry, but that is not a Town road. That stopped at that point. I have upgraded and done a number of different things after that, but really in terms of the snow plowing and the sanding and this and that, and the other thing, there are a lot of reasons really why the guy who plowed it did plow it. It was because he said he belonged to the Fire Department and I needed an access to get out of the driveway because I am going on standby. When he came around, he did. Again, it wasn't necessarily sanctioned by the Town as being ... Mr. Foster: It has been done sporadically. Mr. Prager: What I have to look at now is obviously, I am quite sure you would not pave the road unless it wasn't a ... Mr. Foster: Correct. Some of the problem was Mr. Wolfe's problem. Some of the water, through no fault of his own, was coming down off his end driveway, coming down and just inundating the road, inundating some of his property into his driveway. I think we have taken '14W care of a lot of that situation. It may not be 100%, but it is much better than when I came in. In Town of Wappinger Zoning Board of Appeals Minutes - July 8, 1997 Page 4 Mr. Wolfe: In the late 70's, I dug 3 or 4 inches of ice out of my driveway every other week. That is certainly not the problem today. Believe me, it is a lot better than it was. Some through the Town and some through my own expense of taking care of things. Mr. Foster: Yes, we do maintain it. We have every intention of continuing to maintain it. Mr. Wolfe: One other thing Howard, if I may, I don't know if this carries any impact whatsoever, but I remember at the last meeting you folks said we are really talking about a setback requirement rather than any kind of other problem. I know one of the neighbors that was here mentioned another problem and you said an environmental impact problem. I am watching the deer change, their habitat and path from when, I believe it is a road on Spookhill Road, Kendell Farms, I get them mixed up all the time. Mr. Foster: Fieldstone. Mr. Wolfe: Fieldstone. When homes went into Fieldstone it changed a lot of different things in my mind environmentally. It moved the ... It shifted the deer life moving from the back there across into the wetland. For all those years now we get animals coming through there. I noticed that there are nesting of rabbits, and birds in the trees. I don't know what the environmental impacts are on Blue Jays and ... Mr. Prager: I think the thing you have to remember there is even if this didn't need a variance, '%W and a house was going in there, those animals would probably be moved anyway. The thing I was mentioning about the environmental impact statement is it doesn't actually cover one lot. Mr. Wolfe: I understand that. That is all I have to say. Mr. Prager: I had one quick question for you. You mentioned it before and I didn't write it down. What is the reason that you can not bring the house any farther back than you have on the map? Mr. Angelo: Basically for the drainage situation. We felt by keeping the house 35 feet setback from the front would allow more drainage off the house and into the storm drainage system rather than on the property itself. The closer we get to the road, that much better a pitch we can put on the front yard and the driveway. The pitch runoff into the storm drain system rather than dumping it all onto the property itself and allowing it to free flow. Mr. Prager: Anybody else have any questions? I am not sure we logged in all of the evidence the last time. A copy of the site plan by Mr. Kihlmire dated April 25"' (Job No. 97-045). A letter from Don Close dated May 28`", "After conferring with Supervisor Smith, the Town Attorney, Mr. Roberts, the Town Engineer, Mr. Paggi and the Highway Supervisor, Mr. Foster, it was decided the lot is definitely in the Zone R-40." A letter dated June 25"' from Don Close where it mentions about the two notes in the file that the footage on Ardmore is a Town road. Of course the one from this evening that Mr. Foster hand delivered about the road being a Town road (Letter dated July 7, 1997). The Findings of Facts: The applicant's property in its entirety falls within the R-40 district classification. It is located at Orchard Drive. A question arises, or Ardmore Drive in the Town of Wappinger, New York. The appellant has submitted a site plan of the property by Raymond J. Kihlmire, LLS dated April 21, 1997. I will put Job No. 97-045. err+ .,fir► Town of Wappinger Zoning Board of Appeals Minutes - July 8, 1997 Page 5 The appellant, as contract vendee, is seeking an area variance of Article IV, Section 420.3 — Schedule of Dimensional Regulations — A 50 -foot front yard setback is required, the applicant is showing 35 feet, thus requiring a 15 -foot front yard variance to construct a single family residence on property located at Orchard Drive and is identified as Tax Grid No. 19-6257-01- 223557-00 in the Town of Wappinger. A letter was received by the ZBA of the Town of Wappinger from Mr. Donald Close, Zoning Administrator, Town of Wappinger, dated June 25, 1997, stating that he had spoken to the Town of Wappinger Highway Superintendent, Mr. Graham Foster, and Mr. Foster stated that, "2000 feet of Ardmore Dr. & 1500 feet of Orchard Dr. are Town Roads. Also roads maintained for 10 years automatically becomes the responsibility of the Town." The Zoning Board of Appeals received a letter from Mr. Foster discussing the road in front of this property. He made mention that. "A short section of road referred to a memo of 6/27/97, is maintained by the Town and has been for approximately 30 years. Since normal maintenance of a road for 10 years makes it a town road by use, this section more than qualifies." Can I have a motion to close the public hearing? Mr. diPierno: So moved. Mr. Fanuele: Second. Vote: All present voted aye. Mr. Prager: Opposed? So carried. Can I have a motion? Mr. Fanuele: I feel that this lot, if it was denied a variance, can still be built on because it is a non -conforming lot. The question is, is it better to bring the house 15 feet forward or is it better to leave it 50 feet back? In my mind, it would blend in with the surrounding area by granting the variance. So, I make a motion to grant the variance. It is a small variance. It is just a front line, it is not the side line. If you do build something on the property, they have to control the water. They can't put more water on the adjacent property than what is actually going there now. So, basically it might improve the drainage problem. Since it is a Town road, you can get after the Town to do everything that is possible. So, I make a motion to grant the variance. Mr. diPierno: Second. Mr. Prager: The only thing I would like to mention to is it is only a front line variance that is required here. If it was a side line variance, then I would have to think very seriously against it because it would be bringing it closer on the sides. Roll call please. ROLL CALL: Mr. Warren: Granted. Mr. diPierno: Aye. Mr. Fanuele: Aye. Mr. Prager: Aye. Mr. Lehigh: Absent. Vote: All present voted aye. Mr. Prager: The motion was passed to grant the variance. It will be filed in 5 days. The next item of business on tonight's agenda is to discuss Appeal No. 1246. Kenneth & Lisa Fasone requesting a variance to allow encroachment onto a sight easement for the purpose of installing a En NEW Town of Wappinger Zoning Board of Appeals Minutes - July 8, 1997 Page 6 fence on property located at 1 Robin Lane in the Town of Wappinger. For the record, please tell us your names. Mr. Fasone: My name is Kenneth Fasone. Mrs. Fasone: I am Lisa Fasone. Mr. Prager: I am going to try to keep this informal because this is a workshop to get information from you exactly what you need. I know we have a map here. I really couldn't tell too much. Don, I think you have some information too. I question first of all if we can even grant a variance. Mr. Close: The deeds have been located and they have been filed, the sight easements, the storm drain, and the storm easement in the back have all been fled. I don't think the Board can do anything about it. Mr. Prager: I don't think so. I am going to talk to our Town Attorney about it to make sure we are right. My feeling is I don't think we can ... Mr. Fanuele: I have a question. Is it the sight where you see, s -i -g -h -t? Or s -i -t -e? Mrs. Fasone: It is s -i -t -e. Mr. Fasone: It is sight as in seeing. Mr. Prager: You basically want to bring it into that sight easement. Why don't you explain what you want. Mr. Fasone: Basically what we wanted to do is, the front of our house is approximately 75 feet from the corner of Kent Road and Robin Lane. The side of our house is parallel to Kent Road. The front side of the house, we want to come perpendicular to Kent Road about 30 feet from the house. Then, put the fence at a sharp angle so it comes about 34 feet and then straight back. MIXED DISCUSSION OF THE MAP Mr. Fasone: Before we built the fence we obviously asked Mid Hudson Fence to come and look. I did call and I was told we have to be at least 12 feet from the road. I did not know about the sight easement unfortunately. My wife and I have really taken caution. We are not building a fortress there. We are building a white picket fence, six feet high with six foot slats so you can actually ... If a car is coming, if a person is walking, you can see through the fence. We have three small children and we are looking for protection, and privacy. Mr. Prager: The only question is, if it is in the deed, and I believe that is what you're saying Mr. Close, that it is there and you can not block it. We couldn't even do it. I will check with the ,%► Lawyer to make sure we are right. Mr. Close: You are supposed to have 400 feet of sight distance down there. •.rr+ Town of Wappinger Zoning Board of Appeals Minutes - July 8, 1997 Page 7 Mr. Fanuele: I am not too sure what section of the Ordinance we would give them a variance on. Mr. Prager: I am not even sure. Mr. Foster: If Al says that your Board can not grant them anything, is there anybody that can grant them approval? Mr. Close: He has already told me that Mr. Prager. Mr. Prager: Oh, you spoke to Al about this? Maybe you can help us. Mr. Close: He said you can't. Mr. Foster: Is there anybody that can? What about the Town Board? Mr. Close: Once it is declared, it is declared. He didn't say anything about the Town Board. Mr. Foster: I didn't even realize we had this sight easement until ... I over road Jay's suggestions because where they want to go with this fence is ... There is a hedge row going down along side Kent Road, which is the only thing that gives any privacy with regard to the backyard. Jay wants the easement cleared all the way to here, which would have wiped out the entire hedge row. Once you get beyond the hedge row, actually you are looking over the crest of the hill on Kent Road. You're looking off into space. This is something a little bit abnormal. We also have bushes that Jimmy Kline put right through here on both sides, which are right in the middle of the sight easement. So, effectively we are not even using the sight easement at this point. I would like to see if we can do something for them. I don't see where ... If you don't think your Board can and Al said you can't, I don't know ... Mr. Prager: Don has already spoken to him, then I am not even going to ... Mr. Close: I did, but that was not with the intent to go over your head. Mr. Prager: Actually, you're the one who should have checked anyway first. Mr. Foster: If this was a yield sign and you were looking for a line of sight from here to here, I could see a sight easement. Actually, you come out and you come to a full stop. Whatever you see when you come out from here is gone or on top of you or something new is coming up, by the time you stop for the stop sign and pull out ... Mr. Prager: I think what Vic and Jerry are saying is this really isn't an area variance because area wise you shouldn't need a variance. That would be something if you were not allowed to bring the fence 6 feet away. That is an area variance. This really isn't an area variance. This is encroachment on an easement. That puts us out. It is not a use variance because obviously ... It wouldn't be either category. Mr. diPierno: The Board is empowered to grant relief from the Zoning Regulations. It doesn't fall under that. r..r Town of Wappinger Zoning Board of Appeals Minutes - July 8, 1997 Page 8 Mr. Fasone: Where do we go from here? Mr. diPierno: I would track this down to find out why a sight easement was instituted in the first place. It may not be valid. If it is not valid, then the Town Board could repute it if they want to. It is up to them. Mr. Fasone: Do we contact the Town Board? Mr. Close: That is the only place that is higher than us. Mr. diPierno: They are the only ones that have the power to do it. Mr. Fanuele: If it was up in there when it was subdivided, and the Planning Board put it in there ... I think I was on the Planning Board at the time and I don't remember talking about a sight easement. Mr. Close: It has three easements on it. Mrs. Fasone: I only know about two. There is an easement in the back, a drainage easement. Mr. Fasone: There is a drainage easement in the back. We knew about it when we bought the property. Mrs. Fasone: We would never have bought this house. I have three kids. Mr. Foster: There is a 40 -foot wide easement going across the back. Mr. Close: There is one on each side. Mr. Fasone: Basically, if you drive around our area it is not consistent with any of the other homes. There are many roads that have trees all ... There is no sight lines at all. This is a full stop. It is a road ending in a cul-de-sac. Traffic rarely goes over 20 mph. When you come to the stop sign, you can see forever, hundreds of yards. It doesn't make a lot of sense. Mr. Prager: We definitely do not have the jurisdiction to give you anything on it. Mr. diPierno: Write a letter to the Town Board and ask them to address the issue. Then, what they will do is refer to Jay Paggi the Engineer. He will research it and if he can't find a reason to have it, he might recommend to the Board to do away with it. That is the sensible thing to do. They are the only one's who have the power to contravene it. Mr. Fasone: Is there somebody I should write to? Mr. diPierno: No, just write to the Town Board, care of the Town Clerk. Mr. Foster: Send it to Elaine Snowden, she is the Town Clerk. Town of Wappinger Zoning Board of Appeals Minutes - July 8, 1997 Page 9 Mr. diPierno: She puts it on the agenda. She will copy everybody and they will bring it up at the Town Board. Mrs. Fasone: Why couldn't we have found this out three weeks ago? Mr. Prager: You just bought the house? Mrs. Fasone: No, I applied for the variance. I made all the copies and ran around like a crazy person. All this time has gone by. Mr. Close: At the time I didn't realize the deeds were in house. Mrs. Fasone: We have been waiting on this for weeks now. Mr. diPierno: Don just informed us that he rounded up the deeds. Mr. Fasone: Were these available to us? I mean we paid good money to have this researched and we found this out now. Mr. Close: Who did you pay good money to? Mr. Fasone: Our Lawyer. Mr. diPierno: He in turns hires an abstract company that should have researched the deed. Mrs. Fasone: We had no idea there is a sight easement on the property until Graham pointed it out the day before the fence was going in. Mr. diPierno: You mean it is not on your deed? Mrs. Fasone: No. Mr. diPierno: Do you have a copy of the deed? Mrs. Fasone: Yes. Mr. diPierno: And it is not on your deed? Mrs. Fasone: Well, we don't know to look for sight easements. DISCUSSION OF THE SITE PLAN Mr. Fasone: Somebody missed the fact that there is a sight easement. It was never brought to anybody's attention. Like I said, I have three small children. MIXED DISCUSSION - CONCERNING THE PLAN `flow r► Town of Wappinger Zoning Board of Appeals Minutes - July 8, 1997 Page 10 Mrs. Fasone: We found out a 5 pm the night before our closing that there is a drainage easement on the property. At that point, we were going to delay the closing. We had a house packed, three kids, where do we go? Mr. diPierno: How did you find out about it? Mrs. Fasone: Our Lawyer called us at 5 pm. Mr. Fasone: Nothing was mentioned about the sight easement. If we knew about that, like I said I wouldn't have bought the property. Mr. diPierno: He found out about a drainage easement, but he didn't let you know about a sight easement. Mr. Prager: I wish we could help you. Any other business to come before the Board? I will entertain a motion to adjourn. Mr. diPierno: So moved. Mr. Warren: Second. Vote: All present voted aye. MEETING ADJOURNED AT 8:10 PM. Respectfully submitted, Linda Nguyen, Secretary Town of Wappinger Zoning Board of Appeals