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1991-09-24M Zoning Board of Appeals September 24, 1991 Minutes Meeting was called to order at 7:30 P.M. Roll Call Mr. Hirkala, Chairman Present Mr. Brooker Present Mr. Sasser Present Mrs. Roe Present Mr. Lehigh Present Others Present Mr. Levenson, Zoning Administrator Mrs. Hardisty, Secretary to the Zoning Board In Page 1 Town Hall 20 Middlebush Road Wappinger Falls, N.Y. G1Ppmmwm OCl 2 7_ 91 2XINNOWWWt nuwMoeoMo Mr. Sasser: Made a motion to accept the minutes of August 13, 1991. Mr. Lehigh: Seconded. Vote: All ayes. tion carried. Mr. Hirkala: First item on the agenda, Appeal 4 1116 - at the request of Can Tekben owner of the " Bookworm 11, seeking a variance of Article IV Section 422, for the addition to existing building, where 75 feet frontage is required on a State Road, applicant needs a 29 foot variance for addition, on property located on Route 376 and being parcel # 6259-01-478772, in the Town of Wap- pinger. Mr. Levenson: Mr. Chairman, for the record the applicant has properly adyer- tised in the Southern Dutchess News and we have the affidavit, and we have the mailings. Mr. Hirkala: Will the applicant please step forward, and state your name for the record. Mr. Tekben: I am Can Tekben owner of the Bookworm. Mr. Levenson: Mr. Chairman, what Mr. Tekben is trying to do, is put an exten- sion on his existing building. We have approval from the D.O.T. stating that there will be no impact. We also have a letter from the Department of Health, and the only thing Mr. Tekben has to do is must have his casing raised above grade, or have a sanitary pit with drainage installed, otherwise everything is in order. ,-. Hirkala: The Planning Board is presently working on this? Mr. Levenson: Yes. The Planning Board is waiting for you to act on this vari- ance. Page 2 Mr. Hirkala: Our Town Engineer, has no problem with this? Mr. Levenson: No, problems with the corrected maps. Mr. Hirkala: Any comments from the Board? Mr. Lehigh: The only question I have is, you are going to use railroad ties to support one end of that building? Mr. Tekben: Well that is really independent of the structure. It is a pole barn building, and the support goes through the pole onto the footings. That rail- road tie, retaining wall is for the embankment. Mr. Lehigh: I can see that but the thing that brothers me is right up the stream you have stone rip -rap to protect your parking lot. I don't know why you wouldn't do that to the building itself. Railroad ties are not noted for last- ing that long. Mr. Tekben: Well these railroad ties are guaranteed for 6 year from rut. Mr. Lehigh: Ok, you are using pressure treated railroad ties. Mr. Tekben: Yes. �Wt. Lehigh: Thank you, you answered my question. Mr. Hirkala: Anyone in the audience have any questions about this project? There was no one. Mr. Lehigh: Is this going to be in the actual stream bed? Are you going to interfere with that creek at all? Mr. Tekben: No. Mr. Brooker: Made a motion to close the Public Hearing. Mr. Lehigh: Seconded. Vote: All ayes. Motion carried. Mr. Brooker: Made a motion to declare a Negative Declaration. Mrs. Roe: Seconded. Vote: All ayes. k,ption carried. Mr. Hirkala: The question before us is for a area variance, the fact that the parcel of land is a problem, and if we put 75 foot frontage on this, he would wo, Page 3 be in the middle of the creek. There is no way he can use this property without a variance. Mr. Lehigh: Made a motion to grant the variance. Mr. Brooker: Seconded. Vote: All ayes. Motion carried. Mr. Hirkala: Next item on the agenda, request of James Daly, owner of the Auto Glass Shop, seeking a variance of Article IV Section 422 for additions to existing building, where it is required to maintain a 75 foot frontage, appli- cant requires a 22.6 foot variance on the North side of the building and a 17.1 foot variance on the South side, on property located on Route 9D and being parcel » 6057-04-819102, in the Town of Wappinger. Applicant step forward please and state your name. Mr. Daly: My name is James Daly. Mr. Levenson: For the record Mr. Chairman, the notice has been properly adver- ised in the Southern Dutchess News, and we have all the mailings. Mr. Hirkala: one of the questions I have right off the bat is the question of the zoning. Mr. Levenson: It is CC and it is allowable. It is the same in regards to this type of operation, in a CC and a HB. Mr. Hirkala: Because the application has HB and there is no way that this can be on this piece of property. Mr. Levenson: With the permission of the Board we will make the change. I think it was NB before. Mr. Lehigh: Is this conforming or non -conforming? Has we determined that or not? Mr. Hirkala: The existing use on the property now is what? Mr. Levenson: It is conforming. And as a note if you have seen this location of any of the spots on 9D, this is the cleanest. Mr. Daly is very cooperative and keeps a very neat clean place. Mr. Hirkala: So for the record you are saying this is CC? Mr. Levenson: Yes. . Hirkala: The setback requirements for CC is 75 feet from the road because it is on a State Road? Page 4 Mr. Levenson: Yes, that is correct. Mr. Lehigh: There is no way you could have gone out the back of that? Mr. Daly: No. I am really very tight. There was a discussion on the map. Mr. Hirkala: The addition on the right is for what purpose? Mr. Daly: For glass. Mr. Hirkala: The addition on the left is for what purpose? Mr. Daly: That is just for a little more office space. I want to keep it the same. Mr. Lehigh: Same height same line? Mr. Daly: Yes. There was a discussion about Mr. Daly going back with the addition. "r. Hirkala: what you are doing is making one straight line of the building. To that you need the variance. But to go back with either one of these addi- tions, to minimize the variance Mr. Sasser: Mike, I think what you have to keep in mind the concept of the building as it is. I don't know if you know the building. It is like an old service station with bays in the front, and to put and additional product, you are going to do auto glass, where cars are also driven in the back, it would be very difficult to put that in a different area. There was a discussion on this. Mr. Daly: Excuse me, but it would make it look worse if I step one thing back. Mr. Hirkala: You have to understand something here, the concept of a variance, an area variance, is because you have a hardship. There is a practical diffi- culty why you can't add on to the building. This is State Law, I am not talking off the top of my head. The State Law is that in order to get an area variance you have to prove there is a practical difficulty. You understand what I am saying? Right now you are utilizing that property. And you are utilizing that property I assume for a profit, or somebody is. And they want to increase the use of the property, but in order to increase the use of the property you need a variance. But that increase of use of the property is your choice, it has nothing to do with the fact that the property is a viable piece of property as it stands. You see what I am saying? So it is up to you to give me an idea of why you have a practical difficulty that would warrant you getting a variance `f the 75 foot frontage. The fact that the building will look better is not a Tactical difficulty, because the other option you have is not do it. Do you see what I am saying? That is the State Law. It is not just the case of I would Page 5 like to do that so lets go in and get a variance and walk out the door. And I guess where I am coming from is I am trying to get from you something where the Law is concerned. Other then something you would like to do, see what I am saying? Mr. Daly: You were saying something before about moving the building back, but that will be closer to the property along the side then. Mr. Hirkala: Yes and the Law says the setback Law is 25 feet, and you have almost 31. That is what I am talking about, the Law also states that if there is a variance granted the variance should be minimum to satisfy the practical difficulty. Do you see what I am saying? I am not saying you shouldn't do it but what I am trying to get from you is something under the Law that would justify me saying ok. Am I wrong or right? Mr. Sasser: You are correct. Mr. Brooker: I don't see a hardship here. Mr. Sasser: What you are saying is absolutely correct. You need to prove hard- ship, or practical difficulty. Mr. Daly: What I am saying is my practical difficulty is coming so close to the -dge of the property of my neighbor here, if I move it back 10 feet I will be top of the place. There was a discussion of the map again. Mr. Sasser: If you move the addition west until the point you reached 25 feet perhaps you wouldn't need the variance. Mr. Hirkala: Either that he would meet a minimum variance. He wouldn't need 17 feet he might need only 10 feet. The same with the addition to the office to the right. Mr. Daly: I also can't go back to well either because the septic lies right underneath it. Mr. Lehigh: I think Mike, if we don't have the length of this building, in other words the addition, I see that 35 feet width, I don't see a length down there. Mr. Daly: It is 50 feet. Mr. Lehigh: It is 50 feet? I think if you move back your 50 feet you will be right into that wall over there. Mr. Sasser: You don't have to move back all 50 feet, he is saying just move it back until you meet your yard setback. here was a discussion on this, and the zone next to the property. Mr. Brooker: case of fire. room. It Page 6 You are suppose to have access to all 4 sides of the building in Coming around the side it looks like there would not be enough There was a discussion on this. The Board adjourned the meeting while they went into the Zoning Administrators office to check on the zone of the property next door. Mr. Sasser: Made a motion to adjourn. Mr. Lehigh: seconded. Vote: All ayes Mr. Hirkala: That property next door is CC. He can go as far as 10 feet over there. But the next question is if he goes the 10 feet if there is access to the back of the building if there was a fire. Mr. Lehigh: I think personally that it is going to look better all the way around the way it is here. Mr. Hirkala: It probably is going to look better, but that is not the point. The point is he is making an application for an area variance what is the riteria for an area variance? tw Mr. Levenson: But you also have to take into consideration 4 sided access. Mr. Hirkala: But the point being he is asking for an area variance, what is the criteria? Practical difficulty, where is the practical difficulty? Mr. Lehigh: Well he has already proved it on the right, because he has septic. The only thing he hasn't proved it on the left for the bigger addition. Mr. Brooker: On the left if you come back with the addition Mr. Lehigh: I think probably and we could go out and look at it, but I think in order to have an access all the way around that building, you are going to put it exactly where it is. Mr. Brooker: The practical difficulty arises when he moves the building back, you have to have access to all 4 sides of the building. And that is the prac- tical difficulty right there. Mr. Hirkala: The practical difficulty is that, the request for a variance is based on a wish, to add onto the building to increase the business activity on the lot. That is the request for the variance, that in itself does not form a practical difficulty. A practical difficulty is formed from the fact that there is something on his property that will not allow him to use it. The property is being use now, there is a garage, a building and a gas station there now. what wants to do is expand the use, and he wants to expand the use and get a ariance so he can expand the size of the building. Now does that constitute a practical difficulty? That is my question, and that is what I am trying to get Page 7 from the applicant. Is there some reason why he has to expand the building and property use to gain the proper use of the lot? That is what I am trying to get because that is what the Law says. The Law doesn't say come up get a variance. Mr. Sasser: Do you have an engineer working with you? Mr. Daly: I had a man draw up a set of temporary drawings for you, but I didn't want to go the architect if it was going to get shot down. Mr. Sasser: I understand that, I would like to see them work with the existing zoning, and see if there is some way you can get what you want without having to get this variance. Mr. Daly: It is simple if I can't get the variance then I have to put the building back. But common sense will tell you that it will not look nice. Mr. Hirkala: Common sense doesn't enter into what purpose we sit for. We sit for the fact that the Law says and the Town Board legislatively put it in this book the Law says you have to have this, this and this. Now under the Laws that we work under, which is the State Law, and the courts precedence we have cer- tain criteria which we have to work with. And that is what I am trying to explain to you, what our criteria is. And the first thing we have to get from you is a practical difficulty, we have to get from you some manner, way, shape or form that there is going to be a problem with you if you don't get this riance. Mr. Daly: I will not be able to drive around the building without even the fire thing coming into it. But that was one of my prime reasons so I could get around the building in the first place. If I set that building back 15 feet to meet the setbacks it will be up against the wall. Mr. Hirkala: I hear what you are saying, I understand that. And Mr. Lehigh: What he is saying to you is that we need is your reason for prac- tical difficulty. Mr. Hirkala: Listen to what he is saying. You can't gain proper return unless this is done. Are you going to find that if we don't grant this variance are you going to have a financial problem with this property? In other works are you not going to be able to operate your business and gain a profit. Mr. Daly: I am making a living at it right now. Mr. Hirkala: That is the point that I am bring up. The Law states that a prac- tical difficulty has to be proven, before we can give you the variance. And I am trying to find some way we can hang our hat on the legality to give you the variance. And all I have seen so far is that this is something you would like to do, because you own the property and you would like to expand your busi- ness. It is great, it is good for the Town good for you good for everybody. But 'ie Law states we have to have some reason to give you the variance. Mr. Daly: Of course I would like to have it, that goes without saying. If you are talking about the fire requirements to drive around the building I wouldn't have that: if I go back. i k4o� 114�1 � �aa Page 8 �Wr. Hirkala: Let_ not even talk about the fire requirements, right now you have room to drive around the building. If we don't grant you this variance you will not have the addition so there will not be a problem will there? See what I am saying? What I am trying to come up with is a reason for you to get the vari- ance. -here was a discussion on where he has to get his glass from. Mr. Hirkala: You were given a package about this variance, did you read it? Mr. Daly: No. Mr. Hirkala: It pretty much tells you what the reasoning is what we go through, to get you through the process. Mr. Sasser: You have to prove that it causes you a economic impact if you don't get the variance, the burden of proof is on you to prove. Without that we can't: grant you a variance. Mr. Hirkala: This design, you are going to have the garage doors in the front right? Mr. Daly: Yes. Mr. Hirkala: Doesn't the Planning Board have the right to grant 50 feet if the rage doors are in the back? Mr. Levenson: The issue hasn't been discussed yet. Mr. Hirkala: Do you see my point? Mr. Levenson: I just want to call your attention to the fact that there was a case three years ago in Rockland County, that a guy was converting a warehouse into a manufacturing operation, and he was 400 feet from a local water supply that was suppling with , the Town insisted he hook up, and he went to court, and the lower court directed the Town to withdraw it's demand for him to hook up to the water suppression system, to the hydrant and it should be at his expense, the Town should draw the line. He refused to do it and went to the Court of Appeals, and it was upheld in the Court of Appeals. Mr. Hirkala: You mean that the Town was suppose to supply the line? Mr. Levenson: Yes. Mr. Hirkala: How does that effect us here? Mr. Levenson: You are asking him to move a building back. Mr. Hirkala: No, I am talking about the justification of the variance to begin with. First the justification of the variance, and then to see if there is a inimum variance that could be put on the lot, less then what the request is. Mr. Sasser: I think right now we have two options, we could go ahead and vote on this tonight, is that correct? Or you could ask for an adjournment. Page 9 Mr. Hirkala: Well what I was going to suggest to him is to study the applica- tion but based on what the Law is, what you can or can't do. And see if you can adjust this around and put some thought into what you want to do with this property and see if there is another way you can do this and still get what you want, and come back and revise the application. Mr. Levenson: We should also investigate he should also investigate the Plan- ning Board putting the doors in the rear. Mr. Hirkala: That is some thing else. That way, I would imagine that, that is the case, and the Planning Board has the right to grant 50 foot rather then 75 feet, on a State Highway if the doors are in the rear. Mr. Daly: Could I put the doors on the side? Mr. Levenson: We will talk to the Planning Board on October 7. Mr. Hirkala: You request us to adjourn, until you can have a discussion with the Planning Board as to what the options are on this application. And come back to us with it. Mr. Lehigh: I think you should sit down and talk to Herb, and iron out that practical difficulty also. That is what this whole this hinges on right there. f you prove a practical difficulty then you can look for a variance. If you %an't you can't. Mr. Hirkala: Why don't we adjourn this case until such time as you get more information. Mr. Levenson: Mr. Daly is on the agenda for October 7, so we will discuss this. Mr. Lehigh: Made a motion to adjourn this case. Mr. Brooker: Seconded. Vote: All ayes. Motion carried. Mr. Hirkala: Next item on the agenda is Appeal # 1118 - At the request of Donald & Martha Tambasco , seeking a variance of Article IV Section 421 for an addition, where it is required that you maintain a 25 foot side yard, and the applicant is requesting a 3.22 foot variance on property located at 10 Brothers Road and being parcel # 6258-04-793474, in the Town of Wappinger. Is the applicant present? Mr. & Mrs. Tambasco: Were present. r. Lehigh: You are looking to extend the bedroom? Mr. Tambasco: Yes. Mr. Levenson: For the record this has been properly advertised. Page 10 Mr. Hirkala: R-40 zone, the setback requirements are what 25 feet? Mr. Levenson: Yes, 25 feet. Mr. Lehigh: You have a reason for that sir? Mr. Tambasco: Yes, I have a small ranch and the bedroom is to small. And when I get out of bed I have to shimmy to get around the dressers. Mr. Levenson: Beside the fact that they have a very big family. Mrs. Tambasco: 8 children and 9 grand children. Mr. Hirkala: 8 children, how about going up two stories. Mr. Sasser: The septic is in the back and that is the reason you are not going back? Mr. Tambasco: That is correct. Mr. Hirkala: This is a ranch or a raised ranch? Mr. Tambasco: Straight ranch. ir. Hirkala: So the driveway to the garage goes straight in? Mr. Tambasco: Yes. Mr. Hirkala: How large is this lot? Mr. Tambasco: 150 feet. Mr. Lehigh: Can I ask one question, why didn't you extend that all the way to the front? Mr. Tambasco: I just set it back because of the electric coming in there, and the way the architect draw it, it looks better set back. Mr. Hirkala: Ok, so these lines that have been drawn on the plot plan are the same when you brought the house? Mr. Tambasco: Correct. Mrs. Tambasco: We are trying to avoid the electrical lines. Mr. Sasser: I can't see any other way of doing this. There was a discussion about the subdivision and how they were put in. . Sasser: I think a practical difficulty exists. Mr. Hirkala: Yes, it is a narrow lot. Any questions from the Board? Any one in the audience? Page 11 There was no further questions. Mr. Sasser: I move to close the Public Hearing. Mr. Brooker: Seconded. Vote: All ayes Motion carried. Mr. Lehigh: Made a motion to declare a negative declaration. Mr. Brooker: Seconded. Vote: All ayes Mr. Sasser: Made a motion to grant the variance. Mr. Brooker: Seconded. Vote: All ayes Motion carried. 060 Mr. Hirkala: Next item on the agenda is a request for re -hearing, Appeal r 1032 Glenn LaDue, concerning a 500 foot blacktop apron, letter dated August 27, 1991 from the applicant. Is the applicant present? Mr. LaDue : Was present. Mr. Levenson: Mr. Chairman, this emanates from a site inspection followed by a Building Inspector, Fire Inspector and Chief Pottenburg. And Chief Pottenburg when he looked at it said he was very unhappy with what he saw. He he recom- mended not blacktopping the driveway. I believe it is his Fire Department and his truck and they would be very unhappy if they lost a truck so where up there. The suggestion is from counsel and my office is that the original Deci- sion and order that was dated April the twelfth 1988, be withdrawn by the Board, and a new Decision and order be written, stating that the driveway it to remain as submitted on the plans, without any blacktop. Mr. Hirkala: I have one question, where is Graham on the grading? Am I correct in my assumption that the final grades where within the zoning ordinance, that the variance really wasn't required? Mr. LaDue: I am not sure about that, but I Mr. Hirkala: The percent of grade was a lot less then the variance request was Mr. Levenson: That is correct. They did some cutting there, the cutting was re -worked with Jay Paggi. Page 12 Mr. Hirkala: The only question I would have is if the change in the Decision and Order is great enough to warrant a public hearing. Mr. Levenson: Counsel said no. Mr. Hirkala: As long as it is for the record that the counsel says it is not required then ok. Mr. Levenson: What you should do is, retract the Decision and Order dated April the twelfth 1988, on your motion and then make a motion that the driveway should stay as submitted on the plans, and we will write a Decision and Order that way. Mr. Lehigh: So moved. Mr. Brooker: Seconded. Mr. Levenson: You are moving all? Mr. Lehigh: Both of them. Mr. Hirkala: On your motion please for my own satisfaction enter in the letter TKfrrom the New Hackensack Fire District. r. Lehigh: And the Towns Attorney's opinion. Mr. Hirkala: The second still stands on that? Mr. Brooker: Yes. Mr. Levenson: Lets do this on a record, motion to withdraw the Decision dated April 12, 1988. Who made the motion? Mr. Lehigh: I did. Mr. Levenson: Who seconded? Mr. Hirkala: Mr. Brooker. Based on the request from the New Hackensack Fire District and the Counsel's opinion we don't need a public hearing. All in favor? Vote: All ayes. Mr. Hirkala: Motion for Decision and order? Mr. Lehigh: I make the motion that the he be granted the driveway in the con- dition it is in without the blacktop. 'r. Hirkala: Once again, based on the reports from the New Hackensack Fire strict. Second? Mr. Brooker: Seconded. Vote: All ayes. Page 13 Motion carried. Mr. LaDue: Thank you. Mr. Hirkala: one more thing, do we have to make a motion to accept the with- drawal of the application from Kerr? Mr. Levenson: Yes you should. Mr. Sasser: Made the motion to accept the withdrawal. Mrs. Roe: Seconded. Vote: All ayes Motion carried. Mr. Brooker: Made a motion to adjourn. Mrs. Roe: Seconded. Vote: All ayes. eting was adjourned at 9:15 P.M. Very respectfully yours, GayAnn Hardisty, S ry Zoning Board of Appeals