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2001-06-19 MINUTI!S APPROVED IJUL 2, 4 2001 Zoning Board of Appeals June 19,2001 \..... MINUTES Zoning Board of Appeals June 19,2001 Summarized Minutes Town of Wappinger Town Hall 20 Middlebush Road Wappinger Falls, NY Members Present Mr. Lehigh, Mr. Fanuele, Mr. Prager, Mr. diPierno, Mr. Warren, Chairman Vice Chairman Member Member Member Others Present Mr. A. Roberts, Town Attorney Mr. D. Wery, Town Planner Mrs. Gale, Secretary, ZBA Not in Attendance: Mrs. T. Lukianoff, Zoning Administrator \..... SUMMARY Public Hearings: Mr. Joseph Garnot Variance Approved Gasland Petroleum Withdrawn PH not opened Mr. Lehigh: First order of business is a Public Hearing for: Appeal No. 01-7094 Joseph M. Garnot - Seeking an area variance of 8 feet for minimum side yard setback of 10 feet from Section 240-37 for R20 Zoning District, thus requesting a 2 foot variance. The property is located on 22 Marlorville Rd. and is identified as Tax Grid No. 6157-01-111724 in the Town of Wappinger. \..- - 1 - \....- \. '-" , . Zoning Board of Appeals June 19,2001 Mr. Lehigh: I need a motion to open the public hearing. Mr. diPierno: So moved Mr. Prager: Before we do - are all the mailings in order? Mrs. Gale: Yes Mr. Lehigh: I have a motion to open the public hearing Mr. Prager: Second All present voted - Aye Mr. Lehigh: I checked the mailings and they're in order, Mr. Garnot would you like to come and state what you want and why? Mr. Garnot: The shed was constructed roughly 10 years or so ago, and I was not aware it was 10 feet on the side, I thought I was close to it anyway and as it turned out, it was probably 8 Y2 feet when I checked into it - I just wanted to make it right and have the Building Permit and everything else I needed and to have it be legal all the way around and I finally got around to doing that and initiating that earlier this year, I think I followed all the procedures and so on, you all came and had a look at it. All of my neighbors are aware, they got all their mailings and so on. Mr. Lehigh: We have a new piece of information, a letter from Allen B. Cooke, everybody got a copy of that - it says they have no problem with the variance, we did make a site inspection on it - looked at it, there is a fence for screening, so I'll entertain a motion on the NEG DEC. Mr. Prager: I make a motion on the NEG DEe Mr. diPiemo: Second All present voted - Aye Mr. Lehigh: Anybody from the public that would like to speak for or against this? (No response) Mr. Lehigh: I'd like a motion of close the public hearing. - 2 - , , Zoning Board of Appeals June 19,2001 '-' Mr. Warren: So moved Mr. diPiemo: Second Mr. Lehigh: All in favor? All present voted - Aye Mr. Lehigh: Do I have a motion to grant? Mr. Fanuele: I make a motion to grant the variance Mr. Warren: Second Mr. Lehigh: I have a motion and a second to grant, all in favor? All present voted - Aye ~ Roll Call Vote: Mr. Warren - Granted Mr. diPiemo - Granted Mr. Prager - Granted Mr. Fanuele - Granted Mr. Lehigh - Granted Mr. Lehigh: You have your variance \-.. - 3 - ',- Zoning Board of Appeals June 19,2001 \. Mr. Lehigh: Next order of business - Gasland. I understand you would like to discuss something before we open the Public Hearing? \.r Mr. Siebert: Judson Siebert of Keane and Beane, PC - representing the Real Holding Corp. I received, Friday a copy of Mr. Roberts letter dated June 14,2001 there's also copy to the Board and in sum, the letter concludes with Mr. Robert's opinion that this Board is without authority, without jurisdiction to grant the relief we seek from the two special permit dimensional requirements, the 1,000 ft. and the 2,500 ft. setbacks from another gasoline filling station and a residential zone. I have to say that it did come as a surprise, we were after all - referred to you by the Planning Board when we submitted the special permit application, last summer. We were on September 26,2000, the issue was raised, and raised because a prior application for the property involving this type of use had been denied on this very basis and I indicated our firm belief at that time, given the change in New York State Town Law and given the way that Town Law provision has been interpreted that the Board did have the authority to hear the application, decide it and grant relief. We wanted. . .. there was discussion on it that evening and the Board voted unanimously to take the application. We're now seven or eight months into the application process and the Board's been presented with this opinion. I don't know how the Board is going to decide the issue. My letter of June 11 th, 2001 addressed the issue as well set forth our position as I have on prior occasions and I also set forth in the statement in support of the application, but obviously if there's going to be a decision made by this Board, that it doesn't have jurisdiction, then it should made before the public hearing process opens, because otherwise you're going to put yourselves - from my prospective, most importantly, put the applicant through a meaningless process, so what I would ask is for a definitive decision by the Board and an affirmative resolution as to whether it is going to continue to process the applications or deny it out the outset on the basis of lack of jurisdiction on the grounds outlined by Mr. Roberts. Mr. Lehigh: I would like to take a few minutes and confer with our Attorney, and get back to you on that, onjust how we're going to handle this, ok. Gentlemen, can we retreat into the hall for just a minute? The only discussion is going to be whether we should open and give our opinion or give it before we open. Mr. Wery: I think the appropriate motion is to go into Executive Session for legal advise. \.... - 4- Zoning Board of Appeals June 19,2001 \..- Mr. Lehigh: Motioned to go into Executive Session of legal advise. Mr. Prager: Second All present voted - Aye (At this time the recorder was turned off, and the Zoning Board members and Mr. Roberts and Mr. Wery left the meeting room). Members returned at this point and recorder was turned on. ~ Mr. Lehigh: We're not going to open the Public Hearing, we're going to go with what you suggested, but it's just not cold fact we have empathy for the people involved in this and understand their problems, basic feeling of the Board and is that you're asking for us to legislate, being that the variances are too great, you've got 905 ft. that you want on 1,000 and I think it's 2,443 that you wanted on 2,500 and the Board feels that if we did this we would be legislating and we don't feel we have the power to do that - if the variances were considerably less than we consider we probably could have OK'd - as it sits now the Board just does not feel that it can do it, it feels that it's legislate and I'm sorry - the use that you propose for that site, I think is a little bit too much for that site - it's a very small piece of property and you've got a very intense use going in there. I don't know what the traffic studies would have showed but if! just look at the place next door to it and the business that they do - and if they do and if you did half of that - it's very intense business on that site. I would like to see Mr. Cappellitti be able to have some other kind of business there with not quite intense a use and make a success out of it, and I would wish him well on that - I don't.. .the Board does not bare anybody any ill will on that - we sympathize with him trying to put a useful business on that lot. \..... - 5 - ~ ~ \... . . Zoning Board of Appeals June 19,2001 Mr. Roberts: Your indication to Mr. Siebert not to open the Public Hearing is based on the jurisdictional grounds as set forth in my letter of June 14,2001 which was in response to Mr. Siebert's letter of June 11,2001, am I correct? I'd also like to clarify for the record too - I think we've all struggled with this particular issue and this particular parcel of property, but when the case was first presented, it was presented on the basis that there had been some changes in the law with respect to the powers of the Zoning Board of Appeals - and this Board had not addressed those issues square on. Mr. Siebert indicated that he did have some legal precedent to support the case and it wasn't until June 11 th that these were put into a format that I could respond to, but when we analyze them we came to a substantially different conclusion than Mr. Siebert and perhaps it's taken many months to get here, it's been for several reasons, that's not to say that either my office or this Board is not without some empathy for the plight of the property owner. Mr. Siebert: I would just like to say again..! articulated our reasons in September, before the Board voted to take the application. I think those cases were included in this statement in support of the application that I submitted before our discussion, last month and again we've now been through seven months if not more, of being before the Board with plans, responding with questions, having planning studies prepared - going through the SEQR process, obviously, in terms of establishing Lead Agency status, having the application approved with Dutchess County, which responded with a matter oflocal concern letter - so we are very upset by the fact that it's now.. .., the Public Hearing notice and this is the decision that's being rendered by the Board. Mr. Lehigh: I don't know anything else to tell you - I definitely feel sorry for Mr. Cappellitti, but I don't know any other way to..... ..work out, unless we've gotten the letter of June 11 tho Mr. Roberts: June 11 th, but the prior submission was dated April 30th, that was the statement in support of the application.. .I'm not sure - I received it I thought the beginning of May and I recognize there has been a effort here, but I hope they'd do some additional.. ...again, I think that's enough said, I think the facts speak for themselves. Mr. Siebert: In September, this issue was raised because this was essentially the rational for denying the prior application on the site - so I don't want the record to somehow reflect the fact that is was a foreign issue to the Board. The first time I was asked specifically by the Board to put something in writing concerning this issue, was on May 15th. - 6 - . '. Zoning Board of Appeals June 19,2001 ~ Mr. Lehigh: As far as I'm concerned, you have the decision of the Board I don't know what else to tell you, As I said before, if this had been somewhat lesser ofa variance - but one of them is 95% and one of them is 97% - my own personal feelings is that's legislation - and I think the Board has gone along with that, feels the same - something lesser than that - I could have gone along with. Plus the property, the use on the property is very, very intense. I hope that Mr. Cappellitti could find something else to put there, make some money from it. I don't know anything else to say to you sir, sorry. Mr. Roberts: The only other option you have is to make a record of it being a Public Hearing - if you want to take it further - that's your option. Mr. Siebert: Is the Board going adopt a resolution to, is there a motion to adopt Mr. Roberts' opinion - is that going to happen? Mr. Lehigh: Yeah - if that's what you requested. Mr. Roberts: That could be done - before or after your presentation. Mr. Siebert: You're telling me it's the opinion of the Board, you don't have jurisdiction then why engage in a meaningless process? '-" Mr. Roberts: If you're going to appeal it, at least you have a record. Mr. Seibert: Well- it's a question law - it's purely a question oflaw. Mr. Roberts: I understand that - if you disagree with the interpretation, unless you want a disposition.. .. Mr. Siebert: Other than the fact the Board my June 11th letter, submitted to the Board - and I assume that's been taken into account...in rendering this decision? Mr. Lehigh: Definitely Mr. Roberts: As I believe your statement of April 30th - statement in support. Mr. Lehigh: Would you like to make a motion, Howard? Mr. Prager: That we accept (Mr. Roberts' corrected - Adopt) .... Mr. Lehigh: The decision of the Town Attorney.. .. \.. - 7 - .'"" ... \..,. \..,. \.r Zoning Board of Appeals June 19, 2001 Mr. Roberts: What you're going to do is Adopt my opinion as the jurisdictional basis for not being able to proceed with this application. Mr. Prager: At that, I would make a motion to do as he says, Adopt that, as Mr. Roberts has stated. Mr. Fanuele: Second Mr. Lehigh: Poll the Board Mr. Warren - Granted Mr. diPierno - Agree Mr. Prager - Aye Mr. Fanuele - Aye Mr. Lehigh - Aye Mr. Lehigh: So you have a unanimous decision that agrees' with the Town Attorney's opinion - so I guess that ends it. Mr. Siebert: Thank You Mr. Lehigh: Do you have anything else, AI? I'll take a motion for adjournment Mr. diPierno: So moved Mr. Warren: Second All present voted - Aye Meeting ended at 8:00PM Respectfully Submitted, 0y-,~ D ~ Michelle D. Gale Secretary - Zoning Board of Appeals - 8 -