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2001-08-14 '-" \.., \.... . Zoning Board of Appeals August 14,2001 Summarized Minutes Members Present Mr. Lehigh, Mr. Fanuele, Mr. diPierno, Mr. Warren, Absent: MINUrEij APPROVI!O SEP 25 2001 MINUTES Town of \Vappinger Town Hall 20 Middlebush Road Wappinger Falls, NY Chairman Vice Chairman Member Member Mr. Prager, Member Others Present: Mrs. Lukianoff, Zoning Administrator Mrs. Gale, Secretary Page I Robert & Susan Apgar Scheduled PH 8/24/0 I Judy Rossi Scheduled PH 8/24/01 Paul Post Scheduled PH 8/24/01 Donald Mazochi Scheduled PH 8/24/0 I Rudolph Monaco Scheduled PH 8/24/0 I Motion to Approve Minutes of July 24, 2001 Public Hearings: Discussions: .. .' Mr. diPierno: Mr. Fanuele: Second All present voted - Aye SUMMARY R. B. Hettinger Adjourned PH Sched. 9-11-0 I John & Eileen Fusaro Variance Granted Page 2 '-" First Item on Agenda: Appeal No. 00-7071 R.B. Hettin2er. Inc. - Seeking a use variance for property located at 51 Myers Comers Road, is identified as Tax Grid No. 6157-02-899988 located in the Town of Wappinger. Mr. Lehigh: I have a letter that names the Zoning Board of Appeals as Lead Agency. I need a motion to open the public hearing. Mr. diPierno: So moved. Mr. Warren: Second All present voted - Aye Mr. Carlson: Notified the Zoning Board, Mrs. Hettinger's lawyer, Jon Adams was going to be late, until Mr. Adams arrived. Would like to let someone go ahead of us. '-" Mr. Lehigh: Need a motion to temporary adjourn this. Mr. diPierno: I'll move to temporary adjourn Hettinger case. Mr. Lehigh: All in Favor? All present voted Aye We went on to the next item on the agenda. Appeal No. 01-7097 John & Eileen Fusaro - Seeking an area variance that an attached garage 24'x38' be located 14.5 ft. from side yard setback. Section 240-37 requires 20 ft. from side yard setback, applicant can provide 14.5 feet, thus requesting a variance of5.5 feet. The property is located on 71 Losee Rd. and is identified as Tax Grid No. 6157-02-808797 in the Town of Wappinger. Mr. Lehigh: All the mailings are in order on this, I need a motion. Mr. Fanuele: Motioned to open the public hearing. Mr. diPiemo: Second \.... Page 3 \... All in Favor - All present voted Aye Mr. Lehigh: State your case, what you want and why you want it. Mr. Fusaro: I want to build a garage 24' by 38' attached to the house, for cars and trucks and lawn mowers, because of the way the property lines run with the house, we have to get 5.5' variance. Mr. Fanuele: Your variance is only located in one comer? Mr. Fusaro: Just that one - the northwest comer. Mr. Lehigh: The rest of it falls within, and the reason you wanted to move the addition out away from the house was when you come into the driveway.... Mr. Fusaro: Right - it would make it easier to get straight in. Mr. diPiemo: Mr. Chairman, the record should show that we did a site inspection. Mr. Fanuele: There's going to be a breezeway, this is an addition to the house. Mr. Fusaro: That's what I was told at the last meeting we were at, that it becomes part of the main structure. '- Mr. Lehigh: The Zoning Board of Appeals has been named the Lead Agency in this case and we need a NEG DEC motion.. Mr. diPierno: So moved Mr. Warren: Second All in Favor - All present voted Aye Mr. Lehigh: Does anybody in the audience have any questions? (No response) Mr. Lehigh: Make a motion to close the public hearing. Mr. diPierno: So moved Mr. Warren: Second All in Favor - All present voted Aye '- Page 4 \.r Mr. diPierno: I make a motion to grant the variance, the variance is not detrimental to nearby properties, there will not be an undesirable change to the neighborhood, there are alternatives, but the alternatives are less desirable than the one presented, the requested variance is not substantial and the difficulty is not self-created. On that basis I move that we grant the variance. Mr. Lehigh: Take a roll call: Mr. Warren - Granted Mr. diPierno - Granted Mr. Fanuele - Yes Mr. Lehigh - Yes Mr. Lehigh: You've been granted your variance. We're going to go into the Discussion phase, this is a workshop not a public hearing. Next item on the agenda: \.,., Appeal No. 01-7098 Robert & Susan Apear - Seeking two area variances: 1). Requesting 35-foot rear yard setback for installation ofa new pool- Section 240-37 requires 50 feet from the rear yard, therefore seeking a variance of 15 feet. 2). Requesting 20-foot side yard setback, Section 240-37 requires 25-foot setback, therefore seeking a variance of 5-feet. The property is located at 13 Carmel Heiehts and is identified as Tax Grid No. 6258-04-746219 in the Town of Wappinger. Mr. Lehigh: Now this pool is not installed? Mr. Apgar: No - not at all. Mr. Lehigh: You can't move it closer to the house? Mr. Apgar: I brought a layout of the property and the scale of the pool. (showing Board members the layout, pointing out where the property is and the scale of the pool). Mr. Lehigh: I think we ought to take a look at it. Mr. Fanuele: I noticed the line says "new lot line", Mr. Apgar: I bought this triangle so I could fit a pool in there. The old lot line is here. \.... Page 5 \. Mr. Lehig~: Well, we're going to take a look at it - Saturday, August 18th at 9:00AM. Mr. Apgar: I'm not going to be there. Mr. Lehigh: That's fine, just stake out where the pool will be going. I'd like a motion for Lead Agency? Mr. Warren: So moved. Mr. diPiemo - Second Mr. Lehigh: All in Favor All present voted Aye. We're going to hold off the NEG DEe Set a Public Hearing for August 28, 2001 Mr. Lehigh: Next item for discussion: .\... Appeal No. 01-7099 Judy Rossi - Seeking two area variance: 1). Seeking 12-foot side yard setback for a new pool Section 240-37 requires 20 feet from the side yard, therefore seeking a variance of 8 feet. 2). Seeking 35-foot rear yard setback, Section 240-37 requires 40-foot rear yard setback, therefore seeking a variance of 5-feet. The property is located at 13 NancvAleen Dr. and is identified as Tax Grid No. 6157-02-986840 in the Town of Wappinger. (Applicants explained they didn't know they needed a building permit, overheard someone talking about an inspection while applicant was at Town Hall.) Mr. Lehigh: This pool is not constructed as yet, right? Mr. Warren: This is an above ground pool. Ms. Rossi: Yes Mr. diPiemo: Who is putting in the pool? Mrs. Gale: Asked other person accompanying Ms. Rossi to identify herself, for the record. (Gail Williams) Ms. Williams: I am \.... Page 6 Mr. Lehigh: Is there a reason why you can't comply with the ordinance. ~ Ms. Rossi: It's the only level piece on the property. Very rocky, shale, roots from the trees. Not level at all. Mr. Lehigh: I think we'd better go out and look at it - Saturday, August 18th 9:30AM Ms. Rossi: OK Mr. Lehigh: Need a motion for Lead Agency? Mr. diPierno: So moved Mr. Warren: Second Mr. Lehigh: All in Favor All present voted - Aye Mr. Lehigh: The NEG DEe we'll hold up until we're done. We'll set a Public Hearing for August 28,2001. Mr. Lehigh: The next item is: \..,. Appeal No. 99-7040 Paul Post- Seeking an area variance for a 10 foot side yard setback. Section 240-37 requires 20-ft. setback, therefore seeking an area variance of 10 feet to have an above ground pool to remain where it is. The property is located at 20 Beattv Road and is identified as Tax Grid. No. 6358-03-027049 in the Town of Wappinger. Mr. Lehigh: Mr. Post, I see by the picture the pool is up. Mr. Post: Yes - I came before the Board, in May of 2000, you came out and looked at it - that's all- it stayed right there. Mr. Lehigh: You thought everything was ok. Mr. Post: I knew I needed a variance, no public hearing was set. Mrs. Gale: On his file I saw, you requested a more detailed plot plan - I think that's why a Public Hearing wasn't set and we included that in Mr. Post's folder. '-" Page 7 '-' Mr. Lehigh: I think we'd better start from scratch and come out and take a look at it. Saturday, August 18th around 10:00AM - we'll schedule your Public Hearing for August 28, 2001. I need a motion for Lead Agency? Mr. Warren: So moved. Mr. diPiemo: Second Mr. Lehigh: All in Favor All present voted - Aye Appeal No. 01-7100 Donald Mazochi - Seeking an area variance for property located at 2516 Ri. 9D to allow a house to be built. Section 240-19.A requires 15,000 sq. ft., applicant can provide 12,800 sq. ft. thus requesting an area variance of2, 200 sq. ft. Property is identified as Tax Grid No. 6157-01-296912 in the Town of Wappinger. Mr. Mazochi: This is a request from the Planning Board itself, we've gone through the Planning Board, had our public hearing and due to the contour of the property they thought, they've been through the neighborhood, the village lots, they would look conformed. '-' Mr. Lehigh: Yes, I see the letter from the Planning Board. Mr. Mazochi: We have, Eric Gradell my engineer has some prints for you if you want to look at them, if you want to come to the site and look at the site. Mr. Lehigh: I think we'll come out Saturday and take a look at it. Mr. Fanuele: The only question I have if in an R20 Zone how come we only require 15,000 sq. ft. Mr. Gardell: Average density, if you have over 40,000 sq. ft.- with the average density you can have one lot at 15. Mr. Fanuele: Usually average density deals with new sub-division. Mr. Gardell: This is, this is a new sub-division. Mr. Fanuele: This is a new sub-division. Mr. Mazochi: We're before the Planning Board right now, so that the variances for less area for the existing house. '-' Page 8 Mr. Fanuele: This is a two lot sub-division. '-' Mr. Gardell: Right Mr. Fanuele: I'm not sure that average density applies to a two lot sub-division. Mr. Gardell: You have talk to your Planner. Mr. Fanuele: Well you don't get much average to a two lot sub-division. Mrs. Lukianoff: That was brought up specifically by Mr. Dan Wery, the Planner who was the one that proposed this. Mr. Fanuele: I would like to talk to him then prior to our next meeting. You've got one lot in an R20 Zone should be 15,000 sq. ft. and you're giving us 12,800 that's 7,000 smaller than what is required. Mr. Mazochi: Well the property right now meets Zoning, but they didn't like the way the set lines were drawn. Mr. Lehigh: You're saying there's a problem with the property is... Mr. Mazochi: Well they were worried about the flooding area, they wanted to move the house. '--' Mr. Gardell: They wanted the house as high as possible. Mr. Mazochi: It could meet Zoning right now on both ends on 20,000 sq. ft. or 15,000. Mr. Fanuele: You can relocate the house. Mr. Mazochi: Exactly, and this is where the line setback come in... Mr. Fanuele: You would change the line then. . .. Mr. Lehigh: The Planning Board suggested you move it, or a smaller house. Mr. Gardell: You can make it to 15,000 sq. ft. but the you wind up with a fairly.... Mr. Fanuele: My impression is I need 20,000 sq. ft. Mr. Gardell: That's what we had first, we had a line drawn here - in order to make both lots 20,000 sq. ft. and then the suggestion was made that we use average density, than you could come down to the next lower zoning which is 15,000. '--' Page 9 '-' Mr. Fanuele: I don't think average density applies to a two lot sub-division. I think he's totally wrong on that... Mr. Gardell: If you read the book it doesn't say it has to be more than two lots, but I'm not the expert. Mr. Lehigh: Well, if you've got a question on that, we have to question our attorney. Mr. Mazochi: There's a lot in the town that already existing right next to it. Mr. Fanuele: This is an existing lot - you're creating a new one and we don't like to sub-divide non-conforming lots. Mr. Mazochi: This came from the Engineer and Planner and the Board. Mr. Fanuele: You must have had something like (this) - and the house would go over here? Mr. Mazochi: Right, the house would go there. Mr. Lehigh: We want to come out there and take a look at it - has anybody from the Planning Board been out there and looked at it? '-' Mr. Mazochi: Jay Paggi has looked at it himself, he's walked down it a couple of times, I'm sure the Planning Board has been there. Mr. Gardell: It's their suggestion. Mr. Lehigh: What we should do here is talk to the Planner and the Attorney. So Saturday, we'll come out and take a look at it. Maybe could explain the difference between the two so I could physically look at it and see, make up our minds, collectively. We'll be there IO:30AM The Planning Board is Lead Agency. Let's have a motion for Lead Agency strictly for this variance, the request for this variance. Mr. diPierno: I'll make a motion - but I'm not so sure we can do that. Mr. Lehigh: I'm not so sure either - but I'll check with the attorney. Mr. diPierno: This is really in front of the Planning Board. Mr. Gardell: It's two separate issues. Mr. Lehigh: I'll ask the Zoning Administrator - what do you think? '-' '--" Mrs. Lukianoff: This is a request for a variance - I think this is your call. Mr. diPiemo: But they're the Lead Agency. ... Mr. Mazochi: For the Sub-Division. Mr. Lehigh: And they're really causing the variance. Mr. diPiemo: They're just referring the problem they creating to us. Mr. Lehigh: It's not his request for the variance - actually, the Planning Board is requesting the variance. Mrs. Lukianoff: In the interest of the design and better planning.. that was their idea, not the applicant's. Mr. Lehigh: Definitely. Let's go along with - Lead Agency, strictly for this vanance. Mr. diPierno: With reservation. Mr. Lehigh: So I have a second? ~ Mr. Fanuele: Second Mr. Lehigh: All in favor? All present voted - Aye Mr. Lehigh: We'll leave NEG DEe until the Public Hearing. OK - we'll see you Saturday, if you could stake it out both ways or at least be able to show us. Let's set the Public Hearing for August 28th Next Item: \..- Page 10 Page 11 '-' Appeal No. 01-7101 Rudolph Monaco - Seeking an area variance for existing pool shed to remain where it is, applicant can provide 5 Y2 ft. rear yard setback. Section 240-37 requires a 10ft. rear yard setback, therefore requesting an area variance of 4 Y:z feet. The property is located at 3 Beatty Road and is identified as Tax Grid No. 6258-04-998127 in the Town of Wappinger. Mr. Lehigh: You have a couple of pictures of the shed. Mr. diPiemo: How long has the shed been there? Mr. Monaco: Well, I'm there eleven years and was there before I got there. Mr. Lehigh: When you took over the property, the shed was there? Mr. Monaco: Yes Mr. Lehigh: But there wasn't a CO on it. '-" Mr. Monaco: Well, I was led to believe there was a CO - there's a shed, there's a pool there's a patio and I was told - "we have CO's for everything here" and I'm surprised that my bank didn't look into it and say - no - you don't have a CO, all of a sudden I get a letter in the mail of a violation. Mr. diPiemo: You said you're in there what - eleven years? Mr. Monaco: I'm in there eleven years - yes, I know it's there before me. Mr. Lehigh: You have a pool there also? Mr. Monaco: Yes Mr. Lehigh: Do you have a CO on that? Mr. Monaco: Yes - and the shed is associated with the pool because that's where all the equipment, the motor, the filter and.... Mr. diPiemo: All that was in there? Mr. Monaco: Yes, I'm surprised that wasn't a CO for the shed also. Mr. Lehigh: There's electric in that... "-' Page 12 '- Mr. Monaco: Yes - it's a good job too - if you look at the shed, you'd say this is a thing of beauty, I don't know if you can see it - it looks like a Swiss chalet, it's a nice looking shed. Mr. Lehigh: Has the Building Inspector checked that shed? Mrs. Lukianoff: He hasn't yet, because in fact, he's the next step, after this. Mr. Monaco: Is it possible when they gave the pool the CO - they included the shed with it. Mrs. Lukianoff: No - it says pool only. It just mentioned the pool, it didn't mention any other structure. Mr. Lehigh: Since we don't know that shed could have been constructed after the pool, to house all that. Well I think what we have to do is come out and take look. Eleven o'clock, Saturday. Mr. Monaco: That's good. Mr. Lehigh: Let's set the Public Hearing for August 28th I need a motion to be Lead Agency. ~ Mr. diPierno: So moved. Mr. Warren: Second Mr. Lehigh: All in favor All presented voted - Aye Mr. Warren: I've got a question - which application is current? because I've got two here - one with a cover letter, I don't know what the difference is, as far as the lot, "require 10ft., applicant can provide 512ft. Mrs. Gale: That's the revised one - I had Mr. Monaco initial it - he remeasured, his property goes behind the fence... Mr. Monaco: The right. Mrs. Gale: That's the revised one. Mr. Fanuele: I have a question - why are you requesting a variance now? Mr. Monaco: Why? '- Page 13 '-' Mr. Fanuele: Are you selling or moving? Mr. Monaco: I'm in the mists of selling my house, I have a commitment already, and all of a sudden I get this violation - evidently the bank - his bank came out there and looked over the property and saw the shed there and found they didn't have a CO for it. It really galls me, it's gone this long without me knowing it, that there was not CO - because I would have taken care of it a long time ago. Mr. Fanuele: When you bought the house, your bank..... Mr. Monaco: Nothing - on top of that, I've had three mortgagees for my house in eleven years - nobody, ever came out. Mr. Lehigh: Well, we'll come out and take a look at it. Mr. Lehigh: Back to Mr. Adams... Mr. Carlson: I guess we'll start without him. Mr. Lehigh: I need a motion to open re-open Hettinger Mr. diPierno: Motioned to re-open the public hearing '-' Mr. Fanuele: Seconded motion All in favor voted - Aye Mr. Carlson: Hopefully, Jon's going to show up - he called me and I guess he called the Town. I'm Keith Carlson a real estate broker in the area for over 20 years I probably sold over 1,200 houses, I'm a builder - I've done somewhere over 3,000 appraisals - I've got a good feel for the area, I know how the prices where things should be. A lot of the talk for this structure, was to use for residential use, and I just feel that's going to be almost impossible, if someone were to come in and purchase this property to build a residential home of any type they'd have to buy the property first, which we already know is listed for $100,00 - $150,000, the building itself would have to be raised, the cheapest way to put a building in would be a modular home and the home cost would be approximately $85,000 - by the time we had the plumbing the electrical, the carpentry, the foundations, etc. we're up to approximately $337,500, this would breakdown to a building cost of about $231.00 a square foot which would be prohibitive and if the building was torn down, and a commercial building put up, the cost would be higher - between $350,000 and $375,000 which would be extremely high. (Mr. Carlson - Cont'd.) '-' Page 14 \..,... The rest of the commercial building such as this, about 1,500 sq. ft. would (in that particular area), would probably bring in about $2,000 a month, if it were commercial. But that's the building that would be brand new, in fairly good condition, not the present one. The only way, I feel that, this property would be sellable, would be not to rip it down it would be for a person to come in and renovate the building and keep it as it's existing use, some type of the business type building, probably for professional type use - whatever might be on it. Ifwe were to sit down and someone would want to build a single family house on this, and say rent it out in the area, the rent would probably bring in about $1,400 a month, but this particular site has a lot of drawbacks, very high traffic road with approximately 25,000 cars plus per day driving by - it's a real small lot it's I believe.23 acres so it's less than a quarter of an acre, you've got an old well, an old septic system in there - which goes back approximately 50 years on it and the major cost to raise this building, to put up a new home, there's no garage, there's no basement, the area is a high amount of noise, this area has high dust and high dirt so it would almost be impossible for anyone to want to live in an area like that. The monthly incomes like in the area for rents are running between $750 - $3,700, but this is based on properties that run 650 sq. ft up to about 4,000 sq. ft. on it. If someone did put a house up there to rent out, the cost would be in the area of$337,000, tax on the building are about $5,038, there is a water and sewer tax - which I'm not sure what that is - insurance would run about $1,000 their mortgage would run about $2,190 a month, this would actually end up giving them a net loss of approx. $15,000 a year, it just wouldn't be affordable for anyone to do it. Therefore, I feel the present use has got to be what's needed to be done on this building. It is a hardship case, as most of you know, they're here for many years, they're one of the older businesses in the town, they fell on hard times due to the influx of Office Max, Staples and some of the others and at one time they were major office supply dealers in the area and it's been tough. (Changing tape). '-" Mr. diPiemo: How much square footage are you talking about. Mr. Carlson: Fifteen hundred it would be the same as the building. Mr. diPiemo: A home? Mr. Carlson: A home would be about 58 x 27.6, which would come out to 1,500 sq. ft. Mr. Lehigh: I went and read some material and we had a list of people that were interested in purchasing the property at one time - you're really applying for a use variance - and without knowing exactly what use is going into that building, it may be a little hard to do that. ~ Page 15 '-" Mr. Carlson: We'd like to see it set up as for professional use, whether it be doctor, lawyer maybe real estate broker, insurance company.. Mr. Lehigh: You have nobody interested in it right now? (Tape skipped at this point). Mr. Carlson: .. ..bring in the most amount of tax for the town, things like that, it's just too small a piece of property for residential home. And it's been there for fifty years in existence as a commercial building. Mr. diPierno: I don't think there's any question - the property is not suitable for residential property. The only questions is like you said before - what goes in there? Mr. Lehigh: It's a different use - different traffic patterns, everything changes if you're going to put a chiropractor in there, a doctor, you may have 10 or 15 cars a day in and out, if you're going to put a realtor in there you're going to have a lot more people in and out and that's one of the reasons I was interested in knowing if you had anybody, like you had contract-vendee before, at least that would tell us what's going in there we'd given it a use variance, which is what this really amounts to. \..,.. Mr. Carlson: Right - there's been professional people, whether... we had chiropractors, we actually had an M.D. look at, there's been insurance company's things like that.. .psychiatrist, some professional use, or maybe we don't want to see retail in there. Mr. Lehigh: I'm not going to give you an opinion on this, tonight because I want to discuss this with the Town attorney, what we'll do is close the public hearing and then we'll take thirty days then write up an opinion, so that you know where you stand with us. I'm not really for or against it I don't know what we can really legally write a use variance without knowing what the use is going to be on that property. Do you understand what I'm saying? Mr. Carlson: I know Helen has been before the town with people for professional, they've been turned down. Mr. Lehigh: They haven't been turned down by this Board. Mr. Carlson: No '-' Page 16 ~ Mr. Lehigh: This is the Board that would make the decision, so - and I can't say what that decision is because we haven't taken a vote, there's five..... Mr. Carlson: You've got a customer that comes in and wants to buy it - you know they want to get a place - if I have to turn around and tell them we have to wait to go before the Board to get approval, we may loose them. It could take thirty days - forty days, or two months to do this, and people are looking their desperate to get places now and we're just loosing out by this long wait. Mr. Lehigh: I'm not an attorney, I have to get some legal advise before I gave an opmlOn. Mr. Carlson: I agree Mr. Lehigh: Now I'd like to open it up for anybody in the audience - we had the attorney's together at one time - they met at the property, they were supposed to discuss the best way of using that property and making it available for use and I'd like to hear what they have to say. \.,.. Mr. Cantor: Good evening, Mr. Lehigh and members of the Zoning Board my name is Richard Cantor, I'm with the firm of Teahan & Constantino I'm here on behalf of the Pace family who are the immediate next door neighbors and I'm here in opposition to this application for a use variance - let me stop for a moment and digress, I've been attempting to work with Mr. Adams for many months now, to see whether there's some practical and reasonable solution and I think, somewhere out there, there is - but it hasn't been agreed upon and I would submit it's because the applicant hasn't come forward to do what we've discussed, in terms of proposing sufficiently specific arrangement of use and physical appearance that we might consider whether that that was a reasonable solution and try to come in before you together, and we're not rejecting that - it just hasn't been done and we're not the party who hasn't done it, so purposes of this evening I put that out - but that's really to the side - we still welcome that and we still like the opportunity to work that out, my clients have no ax to grind with Mrs. Hettinger, all they want is a physically appropriate and use appropriate neighbor - they have a lovely home in a residential zone and they would expect to see something next door to them is reasonably compatible. That said, I'm just going to address the use variance application itself - the first point, Mr. Chairman is really the version of the point that you were making, you can't have a use variance without a user and a use, what the applicant is really asking for is a zoning amendment to change the zoning ahead of time so it will be there and waiting for an applicant and if that's what they want - they're at the wrong Board - they should go to the Town Board and ask them to change the Zoning Code, but if \.,.. Page 17 \.r (Mr. Cantor - Cont.d.) they want a use variance, then somebody has to come here and say I want to do this, with this property and this is what it's going to look like and this is how I'm going to run it and then you would do what Zoning Boards do - you would apply the standards for use variances and reach whatever conclusion you thought was appropriate, so .... I phrased in terms of - it's not within your jurisdiction, that's the same point you were making, Mr. Lehigh that you can't just have this in blank, the whole concept of a variance is to deal with a proposed use by a proposed user. Also the next point, the application call for commercial or professional offices, I don't know if that's one use or two uses but the way the Wappinger code works, you have categories of use in the use chart and this code says ifit's not one of those things it's not allowed and there is no use that called commercial office, and there's no use that's called both commercial/professional office, in the code there's a listing for professional offices, for banking offices, for business offices, for government offices, and for other offices, so I would think all other issues apart, they really have to specify what it is they're asking for. The third point is that this applicant has failed, it's not even close to providing the legally necessary quantity of proof to establish the legal concept of hardship, the owner and its corporation - the Hettinger Corporation and you don't have even one piece financial information about the business affairs of that Hettinger Corporation as it applies to owning and operating this property, I believe early on you had some old tax returns - I think '98 - '99 tax returns, those weren't the tax returns of the owner, those were the tax returns ofH & B Office - which is one of the tenants, and that's really irrelevant, the issues is whether this owner who is the applicant, can obtain a reasonable return, you need to know what this property costs this applicant, you need to know what mortgages they have, you need to know what taxes they pay, you need to know their other operating expenses and you need to know their income - they have two tenants, they have the H & B Office and they have a copy business, which is also a tenant, the H & B Office business chooses, for personal reasons to operate on a very limited time frame, part time - it's closed more than it's open - that's their choice and there's nothing wrong with that - but that doesn't establish hardship for purposes of a use variance, the law's pretty clear, there's a very rigorous standard for use variance, you have to prove in dollars and cents for each and every use - that's allowed in that R Zone, that you can't get a reasonable return there are uses allowed, for example for residences with a studio in it or residence with an office in it, those are allowed uses in this zone, they would have to come in and prove to you to your satisfaction that they couldn't get a reasonable return on their uses, they also have to prove to you that they can't get a reasonable return on this current non-conforming use, \.... \.r \. (Mr. Cantor - Cont' d.) because they already have a commercial use, it's not that anyone trying to force them into a residential use - they have an ongoing commercial use with two commercial tenants and they haven't given you the first piece information to show the economics of owning and operating in that building yesterday, and today and tomorrow with two commercial tenants - the last (a couple more items) - I listened to Mr. Carlson speaking and I don't question his credentials and I don't question his integrity but I do question the appropriateness of the chair of the grievance board of review appearing on behalf of an applicant to offer real estate opinions in the town in which he's a public official, also I would urge that you consider, after checking with council rejecting Mr. Carlson's testimony and again I do not mean the slightest of personal disrespect for Mr. Carlson and I offer literal zero assertion oflack of integrity on his part, I just think it's inappropriate for someone wearing an official role of the town, particularly one charged with decisions about real estate values to be appearing as a real estate witness in the proceeding in the same town. I also think that this hardship - or this alleged hardship is self created because they already have a commercial use, it was there five years ago, it's there today, it will be there tomorrow morning when we get up, and what they want to do is something different, which is simply their creation. I also think that the first point about a specific user, ties into the environmental issue, it's pretty hard, and I think you pointed it out inherent in your comments, Mr. Chairman, how do you know what the environmental impacts of a use are - when you don't know the use, you don't know how many people are going to work there, how many cars are going to come and go - how much water its going to use - how much light it's going to produce, how much noise it's going to make, even if they were allowed to do what they're saying - give us a variance in blank - and I don't think they're allowed to do that - but even if they were, under SEQR procedures they'd be required to come in, in a generic way and show you the worst case environmental impact, if you went through all the possible uses they're talking about, which one would produce the most cars, the most noise, use the most water and so on - and you would be required in the absence of a specific user and a specific use - in a generic way - to consider the worst case impacts before you could make an environmental determination, so in summary of my position is that (my official summary) is that on the proof that they presented to you, the correct answer is to deny the application, along the way they haven't given you sufficient environmental information and my unofficial conclusion is I would still welcome, and so would my client, welcome the applicant coming forward with enough specifics of use and ~ \..., Page 18 Page 19 \... (Mr. Cantor - Cont' d.) appearance, so that perhaps we could reach a neighbor to neighbor agreement, that would be our first choice - but in the absence of that ability, we have no choice but to be here and oppose the application. I thank you for your patience in listening. Mr. Lehigh: Mrs. Hettinger, do you have anything else? Mrs. Hettinger: Number one - Mr. Cantor, I am there from 7:30 in the morning until a quarter of four, Monday through Friday. Please write that down. Mr. Lehigh: Address us please, because the information isn't important to him, it important to us. \... Mrs. Hettinger: I am there from 7:30 to a quarter of four every day, Monday through Friday, I've been there for thirty-four years, yes - I take Saturday and Sunday off, I'm not there and RB Hettinger, Inc. is a real estate corporation set up by the bank - H B Machines is Bob and I, who are in hardship, number one - Bob had a triple bypass, an aneurysm on the brain, I brought Nick in to help me, fix machines, which pay the bills, which pays the taxes and puts food on the table, and we're there working, I have been for thirty-four years. His client is also a town official- if you really want to think about it. We've had seven people come in to buy that place and I believe the gentleman that was passed by the Planning Board, Mr. Cantor and his client had the letter written to the Planning Board, after they told Mr. Peterson to come in - as soon as they got the letter from Mr. Cantor, they all rescinded, because there have been people interested you have to let me know - who I can sell to, I mean people come in and get so disgusted because of what goes on. Mr. diPierno: You'll have to present to the Board a contract vendee, you have to give us some idea of what's going to go in that building, it's not our job to tell you, who you could sell it to. Mrs. Hettinger: Mr. Carlson said - "professional". Mr. diPierno: That's generic that's too vague. Mr. Carlson: But, they've come before the Board with professional, they've been turned down. Mr. Lehigh: You didn't come in front of this Board. Mr. Carlson: But they've been turned down by the Town. \..... Page 20 '-' Mr. Lehigh: I can't say that - but there are certain legal constraints that we have to operate under, some things I can give them, and some things I could give you and some things I can't - the five of us and I would like to see you adjourn this public hearing for a week or so and see if you could come up with some one - do you think you could come up with somebody? Mr. Carlson: I'm going on vacation Thursday, I'll be gone for two weeks.. .. Mr. Lehigh: If we close this public hearing, then we have to render a determination do you understand what I'm saying? Once we render a determination then you've got even more serious problems. Mr. diPierno: Mr. Chairman, what would we be rendering a determination on? '-" Mr. Lehigh: You have a case in front of you, if they haven't presented right then you rule against them. You still have a public hearing - but you still have got to close or you've got to adjourn and you might possible adjourn it for a month, ifthe other people are agreeable with - that would be the limit. Mrs. Hettinger: So you're saying..... Mr. Lehigh: I'm saying - not to give a determination against you because maybe you could work with the other people. This is really what we were hoping . . .. this is what I said to Mr. Adams before - to get together so you could work together and can't - come up with a tenant that other people would agree on... Mrs. Hettinger: Mr. Lehigh, Mr. Cantor and my lawyer, Mr. Adams has been working on this since December, now how long am I supposed to wait for people to work on something when it's me sitting there hanging.... Mr. Lehigh: I realize that, because if your attorney isn't doing something I can't force your attorney to do something, and if it was me personally and he wasn't doing what I thought he should be.. I would fire him and get another attorney, it's as simple as that - it's not up to me to sit here and solve all your problems. Mrs. Hettinger: I'm not saying that - I'm saying Mr. Adams has been talking to Mr. Cantor, how long is the talking going to go on? '-' Page 21 \... '-' Mr. Cantor: It's correct that Mr. Adams has been talking to me, and it's also correct that Mr. Adams is not at fault, and it's also correct that Mr. Adams is not delaying, Mr. Adams needs a client who is going to retain the services of an engineer, or an architect or someone to help put together an appropriate package, not building plans, but an appropriate package and it's a little bit of words and a little bit of drawings so that we have something to come together on. It's not Mr. Adams that's delaying, and it's not Mr. Adams that's the problem, the other point I have - there's no applicant who has come forward asking for any kind of variance from this town, who has been turned down, because there's no applicant that's made an application for any variance to this town - and the other point which I omitted, was Mr. Carlson spoke in terms of the highest use - that's not the issue on the use variance - the issue on the use variance is whether there's a reasonable use - you're not entitled to a use variance to get the highest or most profitable use, you entitled to a use variance only in the very limited situation where you do not otherwise have a reasonable return. I would also ask that you close the hearing - I would not have gone forward but for the fact that you began by saying that you are going to close the hearing - I have no problem, if the applicant agrees, to hold the decision is abeyance so that perhaps there could be some more discussion with Mr. Adams. That might be an excellent idea, if you would want to go along with it. Mr. Lehigh: The only way we could do that is - adjourn it, and I think - 30 days is the most we could adjourn it. We're not going to give a decision tonight, I'm going to talk to our attorney, but if! close the public hearing tonight, then you've got 30 days and we're going to give you a decision whether you like it or not. If you adjourn it then we'll allow you to enter some more information in on this case, such as - if you come up with a buyer or something like that, that we could reasonably give you. Mr. Cantor: I believe, that under your Code you have 62 days, not 30 days to make a decision and even then, it's not one of those codes that's deemed approved, there's really no consequence to go beyond the 62 days, in fact that by agreement you can - so my request is that you close the hearing - that you consult with council, you put it on your agenda 30 days from now, and in the meantime, if Mr. Adams and I have something that we jointly like to urge upon you, we will. You accept it orreject it, as you see fit. '-' Page 22 '-' Mr. Carlson: You made a comment about get some customers to come in, maybe buy the place, probably 95% of all your sales in this area, are done by a real estate brokers, be it multiple list, MLS service, when we list something in the MLS service for commercial use, etc., you've got to show what the uses are for, that's how we get the customers to come out and buy it, we can't show this building because we're not getting customers in because of that. It's almost impossible to sell it because of this. Mr. Lehigh: You sound to me like you've got a catch-22 and I'm not going to make any decisions until we talk with the town attorney. What I would like to do is have a motion from the Board to close the public hearing and we'll give you our opinion - we'll write up a legal opinion and give it..... Mr. Fanuele: Is anybody else going to make any comments? (Question from the audience - does that mean sir, there's not going to be another public hearing?) Mr. Lehigh: That's right. Once the public hearing is closed, it's closed. '-' (I'd like to make another comment). Mr. Lehigh: Come up and make your comment. Would you stand up here and give us your name, sir? Mr. Wise: Number 7 Henry Dr. - If you live off of Myers Comers Rd., like I do you're constantly under a threat of entering that road either from the left or the right, makes no difference whether you turn left or right, coming from the north or the south, such roads as Spookhill, Roberts Lane, etc. etc., you are threatening your life, the gentleman said 20,000 well the engineer from the county told me - over 30,000 cars go over that road on any given day. However, if you're coming out on Henry and this has been going on since 1990, I've been battling this with the county engineers with no success, some day, someone is going to get killed at that intersection - we've already had five very bad accidents, the reason being in front of the Stacks' house, there's a knoll, if you have a pickup truck heading west or if you have an 18 wheeler or van, the person coming out of Henry can see the top of the car, if you have a regular automobile, you can't see it until it's on the top of the knoll or it's on top of you. It's a very dangerous situation, last year the county of Dutchess spent a fortune trying to take down the top of that knoll, guy was there, from an outfit from Yonkers with a very expensive piece of equipment, he spent all day and he took two inches down then he came along two days later and put '-' Page 23 \.... three inches of blacktop back up on top of it, now we have a worse situation than ever before. So I don't want even another car coming out on Myers Comer Rd., from any business, if! could stop it I would, so if the gentleman has got five or six cars coming out a day, I'm saying stop it. (Another audience member started to speak from her seat). Identified as Mrs. Commacho - 49 Myers Comers Rd. Explained how she agreed with previous speaker, identified numerous occasions she called the sheriff department. Mr. diPierno: Informed the two audience members who they should call, it's a matter of enforcing the law. Mr. Fanuele: Asked how this effects the quality oflife - can't change what is happening on Myers Comers Rd. - influx of traffic will increase whether use variance is granted or not. . . Mr. Lehigh: We're getting away from the case that is in front of the Board. I'd like to hear a motion to.. ...adjourn the public hearing? Mr. Cantor: To adjourn or to close? Mr. Lehigh: Close '-" Mr. diPierno: So moved Mr. Fanuele: I would think, you're talking about getting together with your attorney to whatever you're getting together for. I would think that you would need more time, and I would say to you - adjourn the public hearing. Mr. Lehigh: We have one motion on the floor - do I have a second? (No response) (Addressing Mr. Fanuele - "you can't adjourn it - the applicant has to adjourn it"). Mrs. Hettinger: Asked for explanation - adjourn means we can get back to it? Mr. diPierno: Yes Mrs. Hettinger: Adjourn it Mr. Lehigh: Yes - once it closed - it's closed. Mrs. Hettinger: I would request that we adjourn it. Mr. Lehigh: If you need a adjournment for one month, we have to set a specific time '-" Page 24 '-" to adjourn it. If you need it adjourned for another month or something, you're going to have to request - you may get it or you may not. Addressing Mr. Cantor - "do you have any problems with that?" Mr. Cantor: I do - because Mr. Chairman when you began when you opened it by saying you were going to close it this evening and if you were going to adjourn it, we wouldn't have proceeded and it's not our job to apply a perimeter on how to fix their application. Mr. Lehigh: Alright Mr. diPierno: I withdraw my second. Do you want to resubmit the motion? Mr. Lehigh: Well, I would like to close it myself, I think that's what we should do You're going to have some legal problems if we don't close it. Mr. Fanuele: I think we've got legal problems no matter what we do - so I've got to vote my conscience more than the legal problems, because whatever we do we're going to wind up at the next step. I have to use my integrity and my conscience to make a decision. You've got someone going on vacation, and the summer so adjourn it for a month - two weeks I would like, but two weeks... Adjourn for a month. .,. \.r Mr. Lehigh: You withdrew your motion - do I have a motion for adjournment? Mr. Warren: I make a motion to adjourn. Mr. Lehigh: Do I have a second? Mr. diPierno: Second Mr. Lehigh: All in favor? Roll Call: Mr. Warren - Yes Mr. diPierno - Yes Mr. Fanuele - Yes Mr. Lehigh - I'm going to go along with the majority - Yes Mr. Lehigh: So we're adjourned until next month. Mr. Cantor: Which is when, sir? '-" Page 25 \... Mr. Lehigh: September 11 th - You've heard everything that was discussed here tonight, I think it behooves you to take care of them. Mr. diPiemo: I make a motion for adjournment. Mr. Lehigh: Motion for adjournment - do I have a second? Mr. Warren: Second Meeting ended: 8:50PM Respectfully Submitted, '--' '~;Jdk Dd/~ Michelle D. Gale Secretary - Zoning Board of Appeals \a,..