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2001-12-11 ~ '-" \..., ~ Zoning Board of Appeals December 11, 2001 Summarized Minutes Members Present Mr. Lehigh, Mr. Fanuele, Mr. diPiemo, Mr. Warren, MINUTES MINUTES APPROVeD IJAN 22 2002 Town of Wappinger Town Hall 20 Middlebush Road Wappinger Falls, NY Chairman Vice Chairman Member Member Member Absent: Mr. Prager, Member Others Present: Mrs. Lukianoff, Zoning Administrator Mrs. Gale, Secretary Decision: Public Hearings: Conceptual: SUMMARY Hettinger Moved as typed 12/11/01 William Parsons Variance Granted Anthony DeRosa Variance Granted James & Kathleen Godwin Variance Granted First Item - Decision: David Katz Appeal No. 00-7071 RoB. Hettin~er. 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 - read the decision (shown as attachment to these minutes). Vote: Mr. diPiemo: Yes Mr. Fanuele: Yes Mr. Prager: Absent Mr. Warren: Yes Mr. Lehigh: Yes . . '--' DECISION ON APPLICATION FOR AN INTERPRETATION AND! OR USE VARIANCE (Appeal No. 00-7071) Applicant: R.B. Hettinger, Inc. (hereinafter referred to as "Hettinger") Premises: .26 acre parcel located at 51 Myers Corners Road in the Town of Wappinger Tax Grid No.: 6157-02-899988 THE APPLICATION This is an Application by R.B. Hettinger, Inc. for a variance from Section 240-37 and Section 240-16 (C)(3) for certain premises located at 51 Myers Corners Road. The essential facts are undisputed. The subject property has been used for an office supply and business machine repair shop in excess of 20 . - years as a previously existing non-conforming use. The property has been used for business and/or restaurant purposes dating back to the 1930's. The parcel is '-'" an irregularly shaped lot containing approximately .26 acres having frontage on Myers Corners Road. The parcel has never been used for residential purposes. The office supply and business machine repair shop has suffered from competition from substantial national chains such as Staples and Office Depot. " The Applicants seek to obtain a variance so that the property could be used for unspecified "commercial or professional offices", apparently to facilitate a sale of the property. The Applicant was represented by Jon H. Adams, Esq. The Application was opposed by an adjoining neighbor who was represented by Richard I. Cantor, Esq. In furtherance of this Application, the Zoning Board received the following documents or correspondence: '-" , , \... 1. Letter from Jon H. Adams to Tatiana Lukianoff dated October 10, 2000 together with EAF, tax returns and application fee; Letter of Denial from Tatiana Lukianoff to Jon H. Adams dated 2. '-' October 24, 2000; 3. Use Variance Application dated October 29, 2000 from R.B. Hettinger, Inc., by Jon Adams, agent; 4. Letter from Jon H. Adams to AI Lehigh dated December 7,2000 together with Deed and portion of site map prepared by Jack Railing; 5. Letter from Richard P. Bickerton to Alan Lehigh dated March 3, 2001 indicating no objection to an approval for a use var!ance; ,and 6. Statement dated July 24, 2001 from R.B. Hettinger/ H.B. Office Products with information regarding failed sales proposals. PUBLIC HEARING A Public Hearing on this Application was opened on August 14,2001 and adjourned to September 11, 2001 and subsequently adjourned to and closed on November 13, 2001. Helen Hettinger and Keith Carlson, a local real estate broker; testified in support of the Application. Richard I. Cantor spoke in opposition to the Application. DECISION The Town of Wappinger Zoning Code provides in pertinent parts as follows: '-' 2 , , '-" · Section 400.5.2.4: "No non-conforming use of land shall be changed to another non-conforming use." · Section 400.5.3.3: "A non-conforming use of a building may be changed only to a conforming use." '-" Research has disclosed that the Courts of this State have generally_ held that while an established lawful non-conforming use may be continued, a new non- conforming use may not be substituted for it despite its generic similarities. Greiro v. Board of Appeals of the City of White Plains, 612 N.,Y.S. 2.d 509. Likewise, whether a determination of a particular use is a continuation of or a change in non-conforming use is a factual one which should be decided in each case by the Zoning Board. City of Albany v. Feiqenbaum, 611 N.Y.S.2d 719. Significantly, the Applicant here has not proposed a new or similar use of the site but in effect seeks permission to utilize the parcel for unspecified commercial or professional offices. No specific use has been proposed and no specific site plan has been tendered. "A variance is designed to authorize a specific [emphasis added] use of property in a manner otherwise proscribed." Panarieilo v. Demetri. et al.. 99 A.D. 2d 770,472 N. Y.S. 2d 17 (2d Dept., 1984. Moreover, "[a] variance constitutes only limited permission to use a given parcel of property for a specific nonconforming use, and does not constitute a zoning amendment reclassifying the subject parcel." In The Matter of Abbey Island Park. Inc. v. The Board of '-" 3 " , , Zoning Appeals of the Town of Hempstead, 133 A.D. 2d 150, 518 N. Y.S. 2d 823 ~ (2d Dept., 1987) In the absence of a specific proposal, the Zoning Board is without authority to grant a use variance because, without knowing the particular use, the Board is incapable of evaluating the proposed use in accordance with the criteria set forth in Town Law Section 267-b2(b). For example, without knowing the proposed use, the Board will be unable to determine whether the requested use will "alter the essential character of the neighborhood." See Town Law Section 267-b2(b)(3). To do otherwise would only give "rise to serious questions involving the scope and nature of the variance", encouraging revisitation of the . ..- issue via prolonged litigation. Panariello. Id. Accordingly, the Application for a generic use variance is denied without prejudice to renewal on submission of a ~ proper application specifying the proposed use for which a variance is sought. COMMENTARY This Board is of the unquestioned opinion that the Applicant may continue to use the site for the sale of office supplies and as a business machine repair shop. While the Board is fully aware of the burdens imposed on non-conforming uses, this Board is also of the opinion, in context of the circumstances and history of this particular site, that it may, in proper circumstances, be used for similar or analogous sales and service business. Initially, it is the function of the Zoning Administrator to make the determination that a proposed use is a continuation of the existing non-conforming uses. If the Zoning Administrator determines that a proposed use is in any matter a change in use, then the proposed use must be ~ 4 , , '-' referred to the Zoning Board of Appeals for a determination of whether a particular use is a continuation of or a change in a non-conforming use. If it is determined that it is a change in use than the Applicant must apply to the Zoning Board for a variance or to the Town Board for a Special Use Permit pursuant to Town Code S 240-16 (F). Section 240-16 (F) provides that upon issuance of a Special Use Permit by the Town Board and approval of a Site Development Plan by the Planning Board, a property owner may make limited changes to a non- conforming site so that the site can be brought into greater conformity with the Zoning Code. The Board further notes that the most recent use of th~ prop~rty for the sale of office supplies and business machine repair shop is both a "retail sales" and "service" use as these terms are defined in the Schedule of Use Regulations for Non-Residential Districts. "Service" uses have been deemed to include a "copy center," which is a separately defined use from "retail uses" which, in turn, are simply identified as stores and shops for the conduct of retail business. For informational purposes only, the Board wishes to advise the Applicant and interested parties that the Schedule of Use Regulations for Residential Districts in the Town Zoning Code does permit professional office use, studio use and home occupations in a residence within Residential Zones in certain circumstances. While such uses must be conducted in conjunction with the primary use of a building as a residence, professional offices are permitted in Residential Zones, albeit as an accessory use. Accordingly, this Board is of the opinion that upon an appropriate application and subject to the Applicant meeting '-" "-" 5 , " the evidentiary criteria required to establish a use variance and the Applicant's ~ ability to mitigate potential impacts on neighboring properties, the Applicant may be able to obtain a variance for professional or for service use on the subject parcel. However, in the absence of a specific proposal, this Board is unable to apply the statutory criteria required by Town Law to S 267 (b) and accordingly, this Board declines to make a decision for a generic variance. The above constitutes the Decision of the Board. Alan Lehigh, Chairman voting Yes Gerald diPierno, Member voting Yes Victor Fanuele, Member voting Yes Howard Prager, Member voting (Absent) Douglas Warren, Member voting Yes '-' Dated: December 11 J 2001 Wappingers Falls, New York / . ~~~ r._~'?:~Z l-<f L)' Alan Lehigh, Chai(man of Ze(ning Board of Appeals, Town of Wappinger Cc: Hettinger, Inc./ H.B. Office Products Jon H. Adams, Esq. Richard I. Cantor, Esq. Tatiana Lukianoff, Zoning Administrator Hon. Gloria Morse, Town Clerk \.... 6 '-" '-" ,-,. '. Public Hearing: APPEAL NO. 01-7108 William Parsons - Seeking an area variance of Section 240-37 of District Regulations for R-40 Zoning. Whereas a minimum of 25-foot side yard setback is required. the applicant is proposing a 10 foot side yard setback, thus requesting a variance of 15 feet, for an existing barn to remain where it is on property that is to be subdivided. The parent parcel property is located at 361 All Angels Hill Rd. and is identified as Tax Grid No. 6257-04-995410 in the Town of Wappinger. Mr. Lehigh: I need a motion to open the public hearing. Mr. diPiemo: So moved Mr. Fanuele: Second All in favor - all present voted - Aye Mr. Lehigh: The mailings are in order and I believe the Planning Board was the Lead Agency on this, because of the subdivision and one thing we need from them, do they have the Environmental statement that they had because we hadn't seen it. Mr. Parsons: In the final resolution, the SEQR Review is in it. Mr. Lehigh: Do you want to state your case again, for the recorder? and the reason you're keeping this barn. Mr. Parsons: The barn that I'm referring to is on the former White property at the intersection of All Angles and Old Hopewell, it's approximately 150 years old and in the process of subdividing the ten acres, and cutting two one acre lots offofit and that's all that's there, because a lot of it is wetlands - because of the requirements for septic systems (not now, but in the future for the main house) because the house is so big, they want this huge septic system designed and in designing it, it pushes the line for the subdivided lot - lot 2 real close, what it does, it pushes it to the barn and what happens is the only way we could do it either remove the barn, or a variance. Mr. Lehigh: Does anybody else have any questions? Mr. diPiemo: No - I think the records should show we made a site inspection of this. '--' Mr. Lehigh: I need a motion for a NEG DEC Mr. diPiemo: So moved Mr. Warren: Second All in favor - all present voted - Aye Mr. Lehigh: Does anybody else have any questions? (no response) I need a motion Mr. diPiemo: Motion to close the hearing Mr. Warren: Second All in favor - all present voted - Aye Mr. diPiemo: I make a motion to grant the variance. '-' Mr. Fanuele: The only thing I have is - we grant to save the barn and if the actions of the owner who buys it, doesn't want the bam and demolishes it - couldn't build something else. Mr. Parsons: Yes - we talked about it last time and part of the resolution should say for any reason, it bums down, blows down - if anything happens to it - it could never built on that spot again - it has to have 25 feet - the purpose is to save that exact bam. Mr. Lehigh: Michelle, add that statement - if anything happens to it - nothing could go in the same location. Mrs. Gale: Yes Mr. Lehigh: What we're trying to do is save that barn that's 150 years old. Mr. Fanuele: Second the motion. Roll Call Vote: Mr. Warren - Granted Mr. diPiemo - Granted Mr. Fanuele - Granted Mr. Lehigh - Granted '-' ~ APPEAL No. 01-7110 Anthony DeRosa - Seeking an area variance of Section 240-37 Regulations for R-20 Zoning. Whereas 20 feet is required for a deck side yard setback, the applicant is proposing 16 feet setback, thus requesting a variance of 4 feet. The property is located at 4 Aspen Ct. and is identified as Tax Grid No. 6257-01-14980 in the Town of Wappinger. Mr. Lehigh: I need a motion to open the public hearing. Mr. diPiemo: So moved Mr. Warren: Second All in favor - all present voted - Aye Mr. Lehigh: All the mailings are in - do you want to state for the record, the problem that you had with the house. '-' Mr. DeRosa: The house was built about this time of year - at the time there was a problem with the mortgage rates double digit - the important thing was to get into the house as quick as possible, so we got a CO to move in without the deck being built and later that next year - in the summer, I had a deck built and I was not aware of the offset on the side, but we had a deck built - 14 ft. instead of the 10ft. at the time also, I had no other yard and that's where my children played and that's why I 'm asking for a variance now. Mr. Lehigh: Any questions from the Board? Mr. Fanuele: No - the variance is relatively small. Mr. Lehigh: I need a motion for a NEG DEe. Mr. Warren: So moved Mr. diPiemo: Second All in favor - all present voted - Aye ~ '- Mr. Lehigh: I need a motion Mr. Fanuele: I make a motion to close the public hearing Mr. diPiemo: Second All in favor - all present voted - Aye Mr. Fanuele: I make a motion that we grant the variance Mr. Warren: Second Roll Call Vote: Mr. Warren - Granted Mr. diPiemo - Granted Mr. Fanuele - Granted Mr. Lehigh - Granted '-' '-' '-" APPEAL No. 01-7111 Mr. and Mrs. James Godwin - Seeking two area variances of Section 240-37 Regulations for R-IO Zoning. Whereas 5 feet is required for each side yard and rear yard setbacks, the applicants are proposing: 1. 4' side vard setback, thus requesting a variance of 1 foot 2. l' rear vard setback, thus requesting a variance of 4 feet to have stora~e shed remain where it is. The property is located at 5 Mohawk Drive and is identified as Tax Grid No. 6157-02-515510 in the Town of Wappinger. Mr. Lehigh: Could you go over your request for the recorder? Mr. Godwin: We purchased a home with a shed on the property - it was recognized on the title insurance as being in violation when we purchased the house, there was some kind of an exception made at that point in time, for us to purchase the home, now that we're in the process of refinancing the home we were sited with the setback violation, we're just looking to have the shed remain where it is, where it has been for multiple years. '-" Mr. Lehigh: We did a site inspection on this last Saturday. I need a motion for a NEG DEC. Mr. Warren: So moved Mr. diPiemo: Second All in favor - All present voted - Aye Mr. Lehigh: I need a motion to close the public hearing Mr. Fanuele: So moved Mr. Warren: Second All in favor - All present voted - Aye Mr. Lehigh: I need a motion on the variance. ~ ~ Mr. Fanuele: I make a motion on the variance - but I'd like to add one condition since it's impossible to determine when the shed was erected, but was there when James and Kathleen Godwin purchased the property - therefore, the variance is for the existing shed, only. If the owner wants to erect a new shed then would have to conform to then in effect zoning or apply for a vanance. Mr. diPiemo: I second that motion. Roll Call Vote: Mr. Warren - Granted Mr. diPiemo - Granted Mr. Fanuele - Granted Mr. Lehigh - Granted '-' \.. . . David Katz - Conceptual '-' Seeking a variance for an existing pool and deck, when the house was bought, there was no front porch and no back deck - both had access out. Through re-app1ying for a mortgage I found out I'm in violation. I've come to find out there's was no open permit for the deck, I thought it was part and parcel of when I closed on the house and I thought that was taken care of. Mr. Lehigh: How long ago... Mr. Katz: Spring of 1986 -late February of '86 my daughter's birthday was the second week in March of' 86 and we built that deck between when we move in and when that party was. We bought a pool in the Spring of '87 - contracted a pool company to put it up - my understanding was, it was an above ground pool and there was not permit required, at that time, again I've come to find out that I was obviously mistaken. Even my setbacks have changed since that time, so it becomes even a greater hardship, because my setbacks I found out that today, if I understood it correctly was 20 ft. in the rear and now I' m understanding it to be 50 ft. in the rear and my house is 40 ft. from the property line in addition to that the bulk of my property is taken up either with a stream, or 100 year flood plain, driveway or septic, I really have very little property that is usable. '-' Discussions continued regarding surrounding properties, neighbors and history of area. Mr. Lehigh: I need a motion to adjourn the meeting. Mr. diPierno: I make a motion of adjourn. Mr. Warren: Second All in favor - all present voted Aye Meeting ended at 8:45PM Respectfully Submitted 0t-/(!U& 0. JjaJ<- Michelle D. Gale Secretary - Zoning Board of Appeals '-'i