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1995-09-26Town of Wappinger Zoning Board of Appeals September 26, 1995 Agenda - 7:30 P.M. Town Hall 20 Middlebush Road Wappinger Falls, N.Y. proval of August 29th and September 12, 1995 minutes. PUBLIC HEARINGS Appeal 41210 - At the request of Gasland Petroleum Co Inc. who is a variance of Article IV, Section 446.6 where they are required to maintain 2500 ft. between filling stations for property located at Hopewell Road and Route 9 and is identified as Tax Grid ,:19-6157-02-610544-00 in the Town of Wappinger. ADJOURNED PUBLIC HEARINGS M seeking Old 1. Appeal #1207 - At the request of Spotted Owl Development Corp who is seeking a variance of Article IV, Section 411.7, whereas you are required to maintain 1 acre and you are showing .78, thus requiring a .22 variance for an existing undersized lot on property located at 6 Montfort Road and is identified as Tax Grid #$19-6358-01-144515-00 in the Town of Wappinger. 2. appeal #1204 - At the request of Rabco Landscaping & Contracting Inc. (Contract Vendee)who is seeking a variance of Article IV, Section 422.8, paragraph 7, wherein you are not to exceed 2000 sq. ft. in total area and you are requesting a building of 4000 sq. ft., plus or minus, as well as outside storage of nursery retail sales material on property located at Route 82 & All Angels Hill Road and is identified as Tax Grid #19-6357-03-220050-00 in the Town of Wappinger. REQUEST FOR INTERPRETATION Apbeal »1212- At the request of Gasland Petroleum Co, Inc. who is seeking an interpretation of the Zoning Administrator's opinion that the property has lost its "Grandfather Clause" under Article IV, Section 400.5.2.3. This paragraph states that if such "non -conforming use" of land, or any portion thereof; ceases for any reason whatsoever for a continuous period of more than two years, or is changed to a conforming "use", any future "use" of such land shall be in conformity with all provisions of the ordinance. The property is located on Old Hopewell Road and Route 9 and identified as Tax Grid #19-6157-02-610544-00 in the Town of Wappinger. M -own �f wappincrer Zomig Board of Appeals Septe?fiber q linu, tes tv'.ellhers Present Mr. Sasser: Chairman Mr. Prager: Member Aember Absent Mr. diPierno:. Member ethers Present Towle Hall 20 M ddlebti h Road Wappinger Falls; N.Y. Mr. Lehiah: Member Mr. Fanuele: Member AFU. QED N;0V 0 1 1995 9 Mrs. Linda Nguyen, Secretary to the Z.B.A. PLANNING BOAR- ❑ Mr. Sasser: I call the Town of Wappinger Zoning Board of Appeals to order. Would the clerk call the roll please? ROLL FALL: All present Mr. Sasser: The first item of business tonight is the approval of Al.laust 2_9 and September 12, 1995 minutes. Mr. Lehigh: August 29th is all I have. . Sasser: Is September 12th mailed out? Mrs. Nguyen: No. Mr. Sasser: Lets do the Auaust 29th minutes. Mr. Lehigh: I make a motion that we accept as written. NLr. Fanue1e: Second. Vote: All avec. Mr. Sasser: The first public hearing tonight is Appeal #1210 at the reauest of Lasland Petroleum C.o.. Inc. who is seeking a variance of Article IV; Section 446.6 where thev are reauired to maintain a 2500 ft. between filling stations for property located on Old Hopewell Road and Route 9 and is identified as Tax Grid #19-6157-02-610544-00 in the Town of Wappinger. There was a problem with the mailings. The Southern Dutcless News; although they did receive the legal notice they failed to publish it. Based ozl that; we received a written letter from Gasland Petroleum Co. asking for this matter to be adjourned to October 10; 1995 meeting. It will be set down for a public hearing. Can I have a motion to adiourn to that date. Mr. Prager: So moved. FanuLele: Second. Vote: All aves. Ln 4 Wappinaer Zo n ina E rd Minute:; September 2r=, . 1 q9 Pace 1 Sa -;er: Gaslar,d Petroleum as well as the Gasland request for an interpretation will be ad-lourned until October 10th. The next item is an adjourned public hearing. Appeal ;1207 at the request of Spotted Owl Develoument Corp. who are seeking a variance of Article IV. Section 411.7. whereas you are required to maintain 1 acre and you are showina .73. thus -equirina a .22 variance for an existing undersized lot on property locate' at 6 Montfort Road and is identified as Tax Grid 4i9-63SS-01-144515-00 in the Town of Wappinger. Is Mr. Hanig present? =Ir. Han1a: Yes. Mr. Sasser this is a continued public hearing and I w:nuld like to if I could continue my presentation from public last time we were fere. if t. -le Board would allow me to do that. Mr. Sa..er: Certainly. M7-. Roberts: Can Bust ask for a clarification of the record; number one' I brought copies of your memorandum by virtue of letter that I wo�_ild like to Dave the Board members receive a copy of. Mr. Hania: Yes. Mfr. Roberts: Linda. if you would note for the record. I have a letter dated September 20; 1995'from Joel Hanig regarding the application of Spotted Owl Development Corp. to the Zoning Board of Appeals and I am lust deliverina copies for each of the Board members. Secondlv. I believe a 44uuest was made for minutes of the Planning Board meetings for August 7; 93 and August 16; 1993 and I believe that you requested that they be. .rade part of this record. Mr. Hania: That is correct. Mr. Roberts: With reference to the June 7. 1993 minutes .. Linda. I iust happened to notice that page 16 is the last page that I have. It didn't say end or anything and I didn't know if there was anything on the next page. Mrs. Nguyen: I can go in and quick find out. I could pull the file. Mr. Roberts! If you could lust clarifv that before the meeting is over. For the June 7; 1993 meeting; we have pages 14-16. You will verifv that it's not continued onto page 17. With reference to the August 16; 19')-, minutes they start at page 2 and terminate on page 7. Is that correct Joel Mr. Sasser: That is correct. Mr. Roberts: Lastly. I believe that Mr. Parsons submitted copies of deeds tracina the lineage of these lots from 1962 through 1994. 1 'iust want to verify that the packet that each of you have consist of the following Wappinaer Zoning Board Minutes - September 26 i{a_g5 Paas �eds. tThe Board checked their packets and found they did not have all of the deeds. Mr. Roberts asked Linda to make copies for all of the Board after =lie meeting.) Mr. Sasser: For the purpose of the meeting tonight Al we have the history as you had read them off. Mr. Roberts: Do we have a copy of the pertinent portions of the tax map in auestion? Has that been made part of this record? Mr. Hania: It isp art of the application. Mr. Sasser: It was part of the application A1. fir. Roberts: O.k. Nor. Hania: I would like to if I could; with regard to some of the additional items that have been placed into the record; to comment on them. The last time that we were here; Mr. Parsons made some comments that we took serious dispute with. The dispute was based upon my clients recollections of what happened at the Planning Board meeting. As well as their continued statement that before they ever bought this property that -hev had a meeting with the Zoning Administrator,. Herbert Levenson. Tliev ked Mr. Levenson whether or not this property was in fact considered to one lot or two _lots for building purposes in the Town of Wappinger. They told me and I believe them at the time; that from that meeting that they had in Mr. Levenson's office; he said unequivocally that this was two lot, for purposes of building and construction. Now; the Chairman of the Planning Board seemed to give us a different impression. A different impression as to exactly what happened at the Planning Board meeting; which took place and because of that we asked that the minutes he retrieved. Without even knowing what the minutes said because I wasn't there,. we asked that they be brought and produced and incorporated within the record and the Board now has in front of them the minutes of the Julie ?.1993 Planning Board meeting. This absolutely confirms what my clients have said that they were told by the Zoning Administrator; and this was before they boucht the property, that this was in fact considered to be two preexisting non -conforming lots under Zoning and that the only tiling that they would have had to do was to meet the sidelines and the setbacks. Basically, the bulk requirements other than the lot area itself. We can start right on the first page where it talks about This was a question of a lot line realignment and Mr. Levenson commented. "You can't make this more non -conforming then it already is basically." Then; on the second page, which is page 1.5 of the minutes. and there aaain Mr. Levenson said; "Because the subdivision was done prior to the Zoning change that is not an argument. If he can meet the bulk requirement and get the Health Department to approve it leaving it the way it is, he can build the liotlse . " Meanina the house on the vacant lot. Then. it aoe tl-lrouali Mr. Paggi saving that there may be some drainage problems that has %Wbe addressed. My clients concede to that; that they were aoina to be doing engineering to satisfy drainage questions and drainage reauire:�eit Then, there was further question that it was Mr. Schwebel's bider: La;idllig that they Have to realign the lot line. Then, Mr. Leven, --un Om 4 Waapiiaer Z 0121 ;:1 ;p Minutes-�Seutember 2`6. i995 ` Paar _ %hpAid, "That statement was not made by my office." This just goes to reconfirm again; down below (Mr. Schwebel says) "My understanding is that It alreadv is two rots." Mr. Levenson says, "It is two non -conforming lOts." Mr. Schwebel questions, "If I don't realign the lot line and just take the garage down ..." Then. Mr. Parsons says. "If he can get all of the setbacks and the sewer, water and drainage into shape." Implying that all that i.e had to do was satisfy these requirements and he would be able to build .a Douse on that lot. Then; again they came back again August 16; 1993'. Aaain. this is before they purchased the property. Then. there was further discussion about the lot and there was never anything in anv of these minutes that basically told them that you could not build a house on that adjoinina lot. Based on these minutes and the discussion which took place reconfirmed everything that Mr. Levenson told them previously that these were two non -conforming lots. Each of them was independent for buildina purposes and if they met the requirements on setbacks; sidelines and Board of Health, that they would be able to build a house on that lot. Based ilpon that, they did go forward and they did purchase the property from Dime Savings Bank. I would like to enter into the record a closing package. I will pass one copy to Mr. Roberts and pass up another three copies up to the Board. If that isn't enough, I could probably get another one if the Board would like. Mr. Sasser: That is fine. 14r. Hanig: I would like to just go through this with the Zoning Board and �ould have Mr. Murphy, if the Board would like, to swear to the accuracy what is in here because these are the documents that represent his closing numbers on all of these properties. Now, we have the closing statement for the purchase of the Montfort Road property. As we can see the property cost $130,000. and then there was certain credits having to do with the first piece, the second piece. Meaning the two pieces to each of the properties. Basically, the purchase price was $130,000. and tinea there were other disbursements that were incurred in connection with this. That is the Hud 1 that is here. That is the New York State Locument that talks about and confirms what certain expenses were; without getting to the expenses that he had outside of the actual sit down closing, his expenses were $9280. Then, he had other expenses beyond that which had to do with certain improvement cost on the house. Sortie surveys on the house and things like that. There is a detailing next of his improvement cost on that house, which shows that beyond what he spent at closing and all of the closing expenses, he spent another $6,864.81. Then. there was some additional bills. There was a bill from Mr. Kassow Who represented him on now the sale of that property to DeCarlo. Then, we have a closina statement showing the amount of money that he realized when 1e sold the property to DeCarlo and the expenses that he had to pick up in going through that. Finally, after the next Hud 1, that has to do with -uae so called official closing paper that is prepared at the closing, there is a statement having to do with some additional cost associated with going forward on 6 Montfort Road. Which is the money that was paid to Baraer for the septic. to design a house for there. for paving takes on t;,a property for a couple of years, for paying $500. to the+Plannina Board thev could do the review of the lot line realianment; which thev eventually said I'm sorry we are not going to do it. Then, some associated cost relating to the house. Then, finally we have accounting that was done. There was a mistake in the initial numbers. The initial L Wappinaer Zonina Poard Minutes - September 26; 1995 Paae 4 %goiqmbers had a duplication in there of the down payment on the house; which t.as now been taken out. What this shows is that when one takes into consideration what the purchase price was of the properties; all of this cost associated with the properties and the income from the property generated by the sale to DeCarlo. At this point and time; my clients are cut of pocket $16,233.64, which would not have taken place had Mr. Levenson not represented that this property consist of two lots because tlev would not have bought the property at that point and time. Again; they came to the Planning Board meeting and nobody ever at the Plannii;a Board meeting told them that this is not two lots, that this is only one lot. In fact whatever was said at the Planning Board just went to reconfirm in their mind Mr. Levenson's statements that this was in fact two lots; so they could go forward on it and to build a house on the vacant lot and sell off the property that had the preexisting house on it. It is not a situation here where now there is property there and now there is someway for my clients to recoup what they have lost. There really is not because they are out of pocket over $16;000. All had to do with what was attributable to a misstatement by the Zoning Administrator both privately within his office and publicly before the Planning Board of the Town of Wappinger. If the Board would like, I mean Mr. Murphy is Here; but I think everything is documented. He can swear that this is in fact the cost that he had that is associated with this particular purchase and as it sits richt now he is out of pocket $16,233.64, which is represented by this. I have given this to you because the research that I Have done at Mr. Roberts reauest ... There is a bodv of Law that applies V=cifically to applications to a Zoning Board where there is an economic oblem having to do with property ownership especially where that economic problem was caused by certain acts of a public official. In this case the Zoning Administrator. The cases that we have, and I am sure Mr. RLoberts has looked at them, has basically reconfirmed that the Zoning Board of Appeals is the proper municipal Board to grant relief in such a :situation as this. In granting relief where there is an economic hardship caused by the action of a municipal official, there is in fact a more relaxed standard for the granting of variances. The more relaxed standard really requires that there be an affirmative showing against the variance that to Grant the variance would severely impact the health, safety and welfare of the neighborhood. In this particular situation we don't helieve that there is anything that could be shown to mitigate against the granting of the variance such that there would be a severe adverse impact on the health, safety and welfare of the neighborhood. In fact most of the properties in this area are similar in size to these properties. My client has represented that the drainage complaints that were made by neighbors will be addressed. We don't mind satisfying the concerns of the Town Engineer in making the contingency of this variance that the Town Enaineer he satisfied that the drainage concerns will be adequately addressed to the Town Engineers satisfaction. Basically; because of that we believe the courts have been recognizing that when there is this tvpe of hardship that this hardship should be recognized by the Zoning Board and the arantina of a variance such as in this situation. That is basically what I wanted to add to the presentation tonight. We were z--auested to bring back tonight Mr. Harrington; who is the real estate 44.oker. He was involved with Dime Savings Bank and the sale of this property as well as Ms. Cartularo, who was the title searcher involved in the initial search of the property at the time that they were purchased b_v my clients. It was requested that they come back tonight and thev were M wappinger Zoning Board Minutes - September 26, 1995- Page- 995Pacre 5 tce enough to do that. Any of the members of the Board would like to ask a:nv cruestlons of them, they are here. Mr. Murphy; I would like him to reconfirm that this package that I have given to the Board is the true numbers that he has had to deal with since the time that he purchased the property and sold off the parcel to DeCarlo and it should be rioted again that he was always of the belief that he would have a building permit and he was going to have a building permit until after there was a direction by the Town Attorney to the Building Inspector not to issue a permit on the basis that the Zoning ordinance had deemed these lots to be consolidated, which is something that my clients didn't know at the time and obviously it was something that Mr. Levenson, who is the Zoning Administrator, didn't know. That is why we are here today. Mr. Sasser: Mr. Roberts, I would like at this point and time, either now or before you begin, adjourn to an executive session to discuss a matter of legal — Mr. Roberts: Just for the Z.B.A. members to ask some auestions. Did you ever get Health Department approval? Mr. Hanig: Yes, that was part of the package. Mr. Roberts: The house is on the lot line. Mr. Hania: That is correct. IL W. Roberts: The original lot line. I assume that is the reason for the so called easement in the deed to DeCarlo. Mr.Hania: That is correct. Mr. Roberts: The nature of the easement is not identified. Mr. Hania: No, and it really should be better defined and I told my clients that the easement should be better defined, but that was the reason for it. Mr. Sasser: That is where the garage is over the lot line? Mr. Hanig: Yen. Mr. Roberts: I noted that the deed was dated June 24, 1993 with reference to the transfer from Dime to Spotted owl, but vet the closing did not occur until November 8, 1993 and then for some reason it wasn't even recorded again until December 28, 1993. The closing was some three to four months after the last appearance in front of the Planning Board, which was August 16, 1993_ :fir. Hania: Maybe Mr. Murphy could answer that. All I know is that he was going to Fleet for a mortgage and I don't know if that was the reason it t^ok so long. y Mr. Murphy: That was the mortgage that took so long. At that time, refinancing was going on and it took me forever Wappinger Zoning Board Minutes - September 26 1995 Palle t� -. Roberts: when did you enter into contract for that? mr. Murphv: It looks like June 8th. Mr. Hanig: It looks like June 8th. Mr. Roberts: June of 93? Mr. Hania: That is the day after the Planning Board meeting. Mr. Roberts: The title company, were you the person who called? Do you know the time frame when you called, I think it was Mr. Logan? You said you called the Tax Assessors Office. Ms. Cartularo: My office did_ Mr. Roberts: Oh, you didn't ..? Ms. Cartularo: No, it had to be between the time that we got a copy of the contract and the time that ...... did the title search. Mr. Roberts: I have nothing further in terms of the record. Mr. Sasser: Lets call an executive session. Can I have a motion to ad ourn it - yHanig: Mr. Sasser, would you like Mr. Murphy to swear to the package that I gave to you=-' Mr. Sasser: I don't find that necessary. Motion to adjourn? 1,1r. Lehigh: So moved_ Mr. Prager: Second. Vote: All avec_ Vr. Sasser: We will adjourn for 5 minutes. EXECUTIVE, SESSION - TAPE ON/OFF Mr. Lehigh: Motion to reopen the public hearing. Mr. Praaer: Second- econd_.Tote: Vote:All ayes. Mr. Sasser: Joel, as you know we have several concerns. We need clarifications on points of Law as well. Al, would you please relay what we had spoken to you. Roberts: For the record Mr. Hanig, the Zoning Board has asked me certain questions about the Law that thev would like briefed. One is the atiestion of hardship; specifically economic hardship as it applies to the facts in this case. Secondly, the rules on self-created hardship as they LIM 4 Wappinger Zoning Board Minutes - September 126; 19911- Page 991Page 7 bply. Lastly; a commentary on equitable stopple in connection with the statements made by a public official that you suggested are reflected in the minutes. It is my understanding that I would have 10 days to submit t-iat on notice to you and then you have 7 days within which to respond after if votz so choose. The Board would reconvene on October 17th for the Purpose of rendering its decision. Are those dates acceptable? Mr. Hania: Yes Mr. Sasser: Is there anyone else here tonight who would like to speak with regard to this matter's Mr. Hover: John Hover, 86 Gold Road. The lot down hill from the lot in question. You had mentioned that there is a contingency about drainage plans. One of the presentations I heard a word contingency and the Town Enaineer. . Mr. Roberts: That wasn't a contingency. That was a auestion that was brought up at the Planning Board when they went to realign the lot confiaurations. There was some concerns as to drainage on that lot. Thev have not been specifically addressed. Although I believe the applicant ias indicated he would honor any reasonable request. Mr. Hania: Any reasonable request by the Town Engineer. Hover: My concern is ...... Do I go talk to the Town Engineer to ake stare that my concerns are addressed? ?fir. Roberts: This Board hasn't rendered a decision vet as to whether or not they are going to grant .. Air. Hover: If the Board renders a decision favorable to these folks, is my next concern then the Town Engineer? I would like to know what my recourse is when water comes running across my lot with the house that is alreadv built. Where do I go next? Mr. Roberts: Assuming the variance is granted, and I don't want to be presumptuous one way or another, should that occur then the next step would be with the Building Department in Town Hall and the Town Enaineer. Mrs. Hover: I also live at 86 Gold. The house would be facing Is it going to face Gold Road or Myers Corners? I'm sorry Montfort? Mr. Hania: Gold.. Mr. Sasser: Is there anyone else who would care to speak? Can I have a motion to close the public hearing? Mr. Lehigh: So moved. r" Prager: Second_ Vote: All ayes. Mr. Sasser: We will render a decision on October 17th. The next item on M 4 Wappinger Zoning Roard Minutes - September 26, 1995 Paae 8 agenda tonight is Appeal :1204 at the request of F_.abco Landscapina & Contracting Inc. (Contract Vendee). They are seeking a variance of Article IV, Section 422.8, paragraph 7, wherein you are not to exceed 2000 =q. ft. .in total area and you are requesting a building of 4000 sq. ft. Plus or minus, as well as outside storage of nursery retail sales niater,lal 4n property located at Route 82 and All Angels Hill Road and is identified as Tax Grid K19-6257-03-220050-00 in the Town of Wappinger. Rabco has withdrawn their application because the new Zoning Ordinance does not require that they have a variance. That has been withdrawn from the agenda. Is there any other business tonight? Dr. Golden: I am Dr. Daniel Golden and Larry Groden representing Dutche.s '20unty Medical Arts Building located at 1426 Route 9, Hark Plaza, Ruilding 1. We are here because of the notice we received about :1210, Gaslar.L Petroleum. 1r. Sasser: That was the first item on the agenda tonight and because the Southern Dutchess News error, they did not notify all of the adjacenr properties .. > . Rolerts: They didn't publish it in time. Mr. Sasser: That is correct. Through no fault of the applicant, it was through the fault of the Southern Dutchess New, never the less, legal notice was not given to yourselves and all of the adjoining neighbors - eiv so it has been republished and it will be on the agenda for October �i- at 7:30 here. At that point, you will have an opportunity to speak. You will hear two things with regard to Gasland. One is an interpretation and based on what that interpretation is we may hear their appeal. Mr. Prager: Motion to adjourn. Mr. Lehigh: Second_ Vote: All ayes. MEETING ADJOURNED AT 8:25 P.M.. Respectfully submitted, 4-. Linda Ny(yeFf'; Secretary wn of Wappinger Zoning Board of Appeals M