1991-06-11ko
Town of Wappinger Zoning Board of Appeals Town Hall
June 11, 1991 20 Middlebush Rd.
Minutes Wappinger Falls, NY
Mr. Hirkala: Called the meeting of the Town of Wappinger Zoning Board to order,
June 11, 1991 at 7:30PM. Please call the roll.
Roll Call: Mr.
Hirkala:
Present
O CSD
Mr.
Sasser.
Present
UU D
Mrs.
Roe:
Present
Mr.
Mr.
Lehigh:
Brooker:
Present
Present
JUN 2 S 91
mK%XQDOFAPPEALS X
Others Present: KAMM We
Mr. Levenson, Zoning Administrator, and Clerk to the Zoning Board
Mr. Emanuel Saris, Esq.
Mrs. Hardisty, Secretary to the Zoning and Planning Boards
Mr. Hirkala: For the general information, if you haven't heard it before. There
is no smoking in the building, two exits to the rear, go outside this exit to
my right goes outside in case of any fire or emergency. The item on the agenda
for the Public part of the meeting tonight, the official part, other then the
A"7)rkshop, is for the Adjourned portion of the meeting. Pursuant to Section 513
of the Town of Wappinger Zoning Ordinance. At the request of Richard Fay,
seeking a variance of Article IV Section 421 of the Town of Wappinger Zoning
ordinance specifically Section 412, required street frontage, and a variance
under 280-a of the Town Law on Johnson Place not being a Town Road, and also a
remanding order by Mr. Justice Juidice, Supreme Court Dutchess County, dated
February 26, 1987 and being parcel # 6256-01-482814, in the Town of Wappinger.
Mr. Levenson: Mr. Chairman, I would suggest that this be second call in
courtesy of Mr. Stenger, I believe he is on his way.
Mr. Hirkala: Mr. Stenger, is on his way?
Mr. Fay: Yes.
Mr. Hirkala: He is planning on attending?
Mr. Fay: Yes.
Mr. Hirkala: Will in deference to Mr. Stenger, I will delay, and go on with the
other business. The next order of business is not official.
At this time the recorder was turned off.
Mr. Hirkala: Back to order, the Zoning Board of Appeals for June 11, 1991 and
,e are going to go to the item on the agenda, for the official portion of the
Ieting which was the Adjourned meeting of Appeal #1056. Present is the attor-
ney and the applicant. Mr. Levenson.
Mr. Levenson: Let the record indicate Mr. Chairman, per the direction of the
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Board, there was a paragraph notice in the Southern Dutchess News, announcing
this meeting, and the purpose of having this Public meeting.
Mr. Hirkala: Is there any other comments or information that the Board would
like to do among themselves, other deliberation and all, any questions anyone?
Mr. Stenger: The only think I would add is thank you very much for waiting
tonight. Thank you very much for me. I think it is a unanimous vote that's
required tonight. I don't think anyone can abstain, I think that if one person
votes against it the whole thing will go down. You have the agreement, I think
you have seen the good work we have achieved. I just hope the vote reflects
that. If somebody is opposed, if a single vote is opposed on principle, I ask
you to consider your personal principles against the greater bit that might be
served. And thank you very much for your consideration.
Mr. Hirkala: Does anybody have any comments, any questions, of the applicant.
Anything in your minds that you are not sure of? No. No discussion at all?
Mrs. Roe: It seems to me that once this is, or is not, say it is granted any
questions I might have will be taken care of by the Planning Board anyway.
Mr. Hirkala: Anyone else, Mr. Sasser, Mr. Brooker, Mr. Lehigh?
006,
.:r. Lehigh: No I have made my mind up.
Mr. Hirkala: Well, do I hear any motions?
Mr. Saris: Well if you are going to have a vote this evening, and know which
way you are going to come out, if there is something you want to say on the
record, to support your position now is the time to do it.
Mr. Hirkala: Well, I would think that once the vote was, a motion was made
either to deny or approve, and seconded, we would have a roll call vote, and
that person would give their reason.
Mr. Saris: You can do that, that is fine. I was just wondering if you wanted to
talk it out amongst yourselves because I know you haven't done that yet.
Mr. Hirkala: Everyone seems to have made up their mind. So is there a motion?
Mr. Lehigh: Do you want to close it?
Mr. Hirkala: We already closed it. It's been closed, and the only thing I can
see is that, it is a request to overturn previous vote on the ordinance. Now it
is either going to be a motion to overturn or not to overturn.
Mr. Saris: Right now you are either going to deny, or approve the application.
.Which is on the table.
Mr. Hirkala: In other words just like it was before.
Mr. Saris: That is correct.
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Mr. Sasser: Then I will make the motion that we approve the request of Mr. Fay.
Mrs. Roe: Seconded.
Mr. Hirkala: Any other discussions?
Mr. Lehigh: I would go along with the approval and the granting of the vari-
ance, with a stipulation that they apply to the Town Board under 200, to have
the road brought up to Town specifications. Looking at that road, I have a lot
of reservations with it, Ok. We had the Fire Prevention Bureau look at it, I
don't agree with their opinion. I haven't from the beginning, if you see that
road with three fire trucks, four inches of snow and ten or twenty volunteer
cars on it, trying to get there in an emergency basis, I don't think it could
handle the traffic or anything else. Another consideration I have is
supposedly a driveway or a right-of-way and it doesn't even qualify for that,
because it is over a 3% grade. I think two or more houses will change the
character of the neighborhood, because of that road and the safety of the
residence in that neighborhood. I completely disagree with the decisions of the
ZBA Boards that have gone before us, in their opinion to allow the variances
that were granted before. And that is my vote.
Mr. Hirkala: Well you haven't voted yet.
01r. Lehigh: That's my opinion.
Mr. Hirkala: The motion is now made to approve Mr. Fays application. So when
the vote comes, you did not vote to approve or disapprove, aye or nay. And in
the mean time now, get an amendment to the approval for conditions I would
imagine that it would be appropriate in discussions for the granting. I guess
would be, it's a case in a discussion stage,
Mr. Sasser: Al, could I just ask you a question about what you just said? Are
you saying that you feel they should apply, they should petition the Town.
Mr. Lehigh: That's right, I think that it should be a stipulation of the
variance that you give.
Mr. Hirkala: May I point something out? If they petition under Section 200, as
I read the Section, this is the way I read it Al. If they petition there is no
need for a variance, if the Town goes ahead and accepts the petition, and goes
through the process and brings the road up to Town specs and everyone on the
street, according to 200 is going to be charged back the cost of improving the
road, there is no need for a variance.
Mr. Lehigh: The thing is under 200 they only have to have, they don't have to
have everyone go along with it.
Mr. saris: There is a distinction between the request on the table, and main-
enance of the road, lets not forget that. The variance really isn't for the
)ad.
Mr. Hirkala: Yes, that is what I am saying. But one of his conditions, that he
is requesting is petitioning the Town. What I am saying is petitioning the town
FAQ
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is redundant, because if they petition the Town and 50% of the people on the
road go along with the petition, then there is no need for the variance. Because
everyone on that road can go to one acre. Do you see what I am saying, it's a
Town road, not a Town approved road, but a Town road, the Town actually takes
possession of the road, then everyone on the, everybody that borders that
property that road, can apply for subdivisions to one acre.
Mr. Saris: Well the application is for a subdivision its not.
Mr. Levenson: No, the application is to grant a variance under
Mr. Hirkala: Under Section 280-a to allow a subdivision request.
Mr. Saris: Right.
Mr. Levenson: In granting your 280-a if you so choose to do that, you can
direct us when we write, if you grant it, to make sure that it is condition
number one, that the people, that the people on the road and Mr. Fay will agree
to petition the Town to go under 200.
Mr. Hirkala: I hear what you are saying, but some how or other in my mind it
seems that there is a redundancy there, because if we in condition,
..r. Lehigh: I don't think so.
Mr. Hirkala: If we set a condition to petition, and they petition the Town and
the Town takes over the road, and actually brings the road up to Town specifi-
cations, and takes over the road there is no need for a variance.
Mr. Levenson: Your request, before you is to grant a variance under 280-a, ok.
The application under 200 is something that comes subsequent to 280-a, because
God knows when the Town Board will act on it. And the 200 will be done, but God
knows when, in the mean time it gives Mr. Fay the opportunity for you are going
to grant it, to proceed with his next step, which is the Planning Board.
Mr. Lehigh: It does not.
Mr. Levenson: Yes it does.
Mr. Hirkala: Well I guess he has the choice of going through the motion of
requesting subdivision, and at the same time a parallel request for petition.
If the petition isn't granted, if 50% of the people on that road don't agree to
file for petition then he can't get the subdivision anyway.
Mr. Saris: Lets put it this way, if that's the condition that you are going to
place on this approval, if in fact that happens, Mr. Fay cannot speak for the
other residents.
Hirkala: That's my point. I know what Mr. Lehigh is trying to get at. Mr.
Brooker do you have anything.
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Mr. Brooker: I kind of agree with Mr. Lehigh a former Fire Chief, and disagree
with the Fire Prevention Bureau, that road over there I agree with him, about
getting people in and out of there, it just doesn't make sense, so I agree with
his opinion there, that's all I have to say.
Mr. Sasser: We do have expert testimony that has been provided to us in making
this decision that's not the issue, nor is the issue of the road maintenance
but it appears to me from everything I've seen that everybody on that road way
who is effected is now satisfied with the maintenance agreement, and I would
not like to see this go any further and cost the Town and those people a lot
more money.
Mrs. Roe: If this is approved, doesn't the Planning Board control that road? I
mean, what Mr. Fay has to do in order to
Mr. Lehigh: No.
Mr. Hirkala: Not really, the Planning Board, if we grant the right to subdivide
I don't even know if the Planning Board can force, we can put a condition on a
variance that there be up grades and all, but I can bring up my own concerns,
everybody is talking about the road, and I've been in the past being on the
record that the road is not the issue, that the variance is. And the variance
under 280-a is the issue, and one of the things I've been wrestling with in my
#,Pkvn mind not withstanding the effort of the Town, or the attorney or the
applicant have made with the neighbors. I think it is fantastic, and when I
read that letter from you Mr. Stenger, I was very pleased. But, a big but, I'm
not to sure if we are not putting ourselves in a situation where 200 is the
next step. With the progress that has been made, everything is being done is
aiming at creating a community with a private road. A subdivided community on a
private road. Creating one acre lots in a one acre zone on a private road,
which under Section 280, or under the Zoning ordinance of the Town of Wap-
pinger, which is the function of the legislature and many, many planning ses-
sions, with the Planning Board in Public Hearings has stated in three revisions
the need for public roads not private roads in the Town. This is the point I
am wrestling in my mind with, that if we go ahead and grant the variance, what
we are doing is perpetuating what it seems to me that the Town Board and the
Planning Board in their deliberations over three revisions have stated they
don't want the Town to do. The fine line between this Board legislating and
this Board acting under it's proper jurisdiction which is to grant relief, I
think in this case is really a final. And to be perfectly honest with you I
sort of lean toward hoping the thing can be taken care of with the Section 200,
rather then finalizing this variance in the negative. This has been my feeling.
I specifically state on Section 280-a where it says the Board may in passing
on such appeal make any reasonable exception and issue the permit subject to
conditions that will protect any future street or highway layout. The future of
any further subdivision requests on that road, they are going to be up against
any Zoning Board of Appeals that sits here. The fact of the agreement on the
maintenance bond on the road and the condition of the road, going unnecessarily
hat we have to look at, because the next developer, the next person who has a
_ece of property, that comes in and requests another variance we are going to
look at again, and we are going to be hard pressed to not look at it in the
sarle light as we are looking at this one. The questions come up as to whether
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or not the practical difficulty exists with Mr. Fay. The first variance that
was given to his mother, was given based on the fact that she said, she wanted
to leave something to her sons, and there were three parcels involved. The
question has come into my mind is that why one son gets the property and has to
pay for it. I got the impression from that meeting that this was something the
sons were going to be left with, and not have to buy.
Mr. Lehigh: That's what was in the minutes.
Mr. Hirkala: So there is a negative as far as I am concerned, on the practical
difficulty. The two just don't jive. But even so I would still like to see Mr.
Fay get two lots out of this thing. But unfortunately I can't see it coming
forth based on what, based on the fact that he has the road and the maintenance
bond, and all his neighbors are agreeing to it. Because next month Mr. Price
can come in, or Mr.O Reilly can come in to request a variance, and we are going
to be hard pressed to say why not, other then practical difficulty. If someone
can give me something more to go on,
Mr. Sasser: Well I would like to say one thing, I believe that each one of
those home owners on Johnson Place has once benefited from a subdivision. And I
believe, I've wrestled with this a lot also, and I do believe that a precedent
has been established and that we are not perpetuating an initial mistake,
because each one of these home owners has benefited except for the Fays. And I
OPkelieve that if we don't give them this approval that we are denying them the
,ame thing we gave to the others.
Mr. Hirkala: You are saying a precedent has been set, therefore the variance
under 280-a should be granted. That be the case you just agreed with what I
just said. That every further request for subdivision is going to be based on
this precedent.
Mr. Sasser: No I don't, I believe that they have benefited one time from it.
Mr. Hirkala: That has no
Mr. Lehigh: Everybody on that road can benefit from it.
Mr. Sasser: They already have.
Mr. Lehigh: If somebody has seven acres up there also can benefit from it.
Mr. Hirkala: We are talking about a one acre lot, being created in a one acre
zone, which is fine. And there is nothing wrong with that, I think that, that's
probably the way the Town meant that property to be developed because that is
the way it is zoned. But they also requested, they also specifically did not
give provisions in the Zoning Ordinance, for anyone else to come in under 280-a
and go on a private road. They could have done that. Under Section 4 of 280-a
they could have done that. They could have left provisions in the Zoning Ordi-
ance or the Planning Board could be the determining factor, in whether 280-a
could be, whether the person would not have to apply to the Zoning Board of
Appeals first. The Planning Board could have had the right to go ahead and say
well this is where it is deserved and we should go ahead and do it. They didn't
do that, and they didn't do that in three revisions of the Zoning Ordinance,
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from the time zoning first started in this Town.
Mr. Levenson: I just want to say one thing, you have a situation here you have
a property owner that does not have a residence on the road. Anybody else that
would come in to apply it would be a different set of circumstances because
they all have their homes. There would be no hardship, they could not prove a
hardship. If Mr. Price came in or Mr. Fernandez came in or Mr. O Reilly comes in
there is no hardship there. They are going to subdivide their property for
profit only.
Mr. Lehigh: Herb, you can't say they wouldn't have a hardship there either.
Mr. Levenson: Why would they have a hardship?
Mr. Lehigh: What if he had a sick mother or something. You can't say there is
no hardship.
Mr. Hirkala: Mr. O Reilly or whoever it was had a hardship with his child.
Mr. Levenson: Yes that is why he got the subdivision from Price. But everyone
has a home. I don't see where there would be a hardship for any of the property
owners coming in now for a subdivision. Because Mrs. Fernandez came in and I
told her that the circumstances of your subdivision was different then the
,,+resent application. And the other thing is the rules in zoning are that every
.ase stands separate and apart on it's own merits, and that's where the
decision should be made separate and apart, the case before it should be dis-
cussed on the merits of the case before you.
Mr. Hirkala: Well I have a concern about any future happening in that area and
one of the concerns I have is the fact that the Town Board has a legislative
body in this community has not seen fit to ever but anything, to ever give any
power to the Planning Board to override this under item 4. The Town Board may,
by resolution, establish an open development area or areas within the Town,
wherein permits may be issued for the erection of structures to which access is
given by right of way or easement, that's 280-a Section 4. They could have done
this, and we have had many discussions over this, and all I am going by is
legislative intent. And it seems to me that the legislative intent has been to
keep it at a minimum, fine. It is at a minimum, there are lots on that property
that the smallest is two or two and a half acres. This subdivision will create
a one acre lot. A one acre lot is meant to be in an area where you have roads.
Mr. Sasser: It is closer to a one and a half acre lot.
Mr. Hirkala: The fact is I might go along with conditions on the road so the if
such as Al said, but not in the petition set up. If the future of the whole
section, whole area is protected by virtue of the fact that the road had Town
specs in there, that is a possibility.
Mr. Sasser: Are you saying you would feel more inclined to vote in favor of
its
Mr. Hirkala: I would feel more inclined to vote in favor if there was some
protection_ for the future development of the area. Such as in some way or form
Ca
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where there would be roads to Town specifications, so that if ever the Town was
petitioned. to take it over, there was a road there to take over.
Mr. Sasser: So you are saying to put a stipulation in so they would petition
the Town.
Mr. Hirkala: I don't know if that petition is the right way to go, that is my
concern.
Mr. Levenson: Mike, I have a question to ask you. If the legislative body
doesn't specifically address a specific point, and you are addressing a point
that it doesn't specifically addresses, it's deemed to be an allowable use,
with regard to the Town Law.
Mr. Hirkala: But don't you understand the State legislature is already denied
it, so if it is not addressed it is denied. Not denied, but the State legis-
lature in the Town Law has already made 280-a part of the Law. It doesn't
have to be addressed by our Town. If it is addressed by our Town, it is
addressed by our Town so that the Town will specifically allow subdivisions on
a private road.
Mr. Levenson: But if it is not addressed then 280-a can be addressed by the
Town as allowing,
ORK
.r. Hirkala: Our Town Ordinance specifically states that frontage is based on
280-a. And it says it right here, now if the Town wanted to change that at all
they could have referred to Section 4 of 280-a. See what I am saying? To allow
the Planning Board to go ahead and
Mr. Lehigh: He is applying for a variance of that Law. And he has to prove
certain things, and to me and my way of thinking he has not proved them. And I
stated what he hasn't proved. He hasn't proved to my way of thinking that a
fire apparatus can get up and down that road safely. Now that is one stipula-
tion that I've stated ok. The right-of-way is not even the proper grade, of a
right-of-way on that, a driveway that serves more then one house.
Mr. Levenson: But that is not the Zoning Board of Appeals jurisdiction, that's
the Planning Board's jurisdiction.
Mr. Lehigh: That's right, I am taking that into consideration, it's a concern
that goes along with safety. Plus the fact he is changing the character of the
neighborhood and he is bringing them down to one acre lots or less, that also
changes the neighborhood. And secondly or lastly I don't believe that the
previous Zoning Board of Appeals should have ever granted the variances that
were up there, but that's not up to me. This one here is up to me and unless
there is some kind of stipulation in there to have that road taken over and
brought up to Town specifications, I'll tell you right now I have to vote no.
If I am the only one on the Board I still have to vote no.
_. Hirkala: You see the point I am getting at here,
Mr. Lehigh: I would like to see the man build up there, I'd like to see the
road graded and brought in where it should be.
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Mr. Hirkala: section 280-a Section 4 you read that. It specifically says that
the Town Board by resolution, establish an open development area or areas
within the town, wherein permits may be issued for the erection of structures
to which access is given by right of way or easement, upon such conditions and
subject to such limitations as may be prescribed by general or special rule of
the Planning Board, if one exists, or of the Town Board if a Planning Board
does not exists. And my feeling is that if the Town Board had meant that the
development of subdivision to be on private roads, they would have specifi-
cally addressed that point. If I am mistaken please someone tell me.
Mr. Stenger: I will. The Town Law 280-a supersedes any local Law. It confers
the power and an obligation upon the ---- that no local legislation can change
or modify. That stands on it own, it gives you the authority to say yes or no
and you need no other legislation to give you that power, and no other legis-
lation passed by this Town can limit that power.
Mr. Hirkala: So what you are telling me is that item 4 over here doesn't exist.
Because it says the Town Board made by resolution, and the State Legislation
said that.
Mr. Stenger: I would tell you what the Law will say when 280 is compared to a
local Town ordinance, in any township not only this Town.
Ook
.r. Hirkala: Yes, 280-a is the Law of the land.
Mr. Stenger: It supersedes everything else.
Mr. Hirkala: Yes, except for the fact that the Town Board is given the right to
allow 280-a to be circumvented in certain conditions, by allowing the Planning
Board if it exists or the Town Board if it doesn't, to make exceptions. That's
what it says right there in item 4, am I right, Manny?
Mr. Saris: When you read to be very frank Mike, when you read the statute and
the statutes said, but I can't say that you are applying it correctly.
Mr. Hirkala: That is what I am trying to get.
Mr. Saris: All right, and on that ground can we go off the record for a second?
Mr. Hirkala: ok.
Mr. Sasser: Made a motion to go into Executive Session.
Mr'. Lehigh: Seconded.
Vote: Mr. Sasser: aye Mr. Lehigh: aye
Mrs. Roe: aye Mr. Brooker: aye
Mr. Hirkala: aye
O'>tion carried
The time was 8:15 P.M. at this time the recorder was turned off.
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The Board returned at 9:05 P.M.
Mr. Hirkala: The Town Zoning Board of Appeals returned from Executive Session
five minutes after nine on June 11, 1991.
Mr. Lehigh: Made a motion to close the Executive Session and reopen the
adjourned Public Hearing.
Mr. Sasser: Seconded.
Vote: Mr. Sasser: aye Mrs. Roe: aye
Mr. Brooker: aye Mr. Lehigh: aye
Mr. Hirkala: aye
Motion Carried.
Mr. Hirkala: Any further discussion? On the motion, motion been made by Mr.
Sasser, and seconded by Mrs. Roe.
Mr. Levenson: Mr. Chairman, for the record will you ask, I withdraw.
Mr. Hirkala: Roll call vote.
,fir. Levenson: Mr. Sasser? I vote in favor of it, I believe a precedent has
_een established, and I believe this Board is bound to follow that precedent.
Mr. Levenson: Mr. Lehigh? I have already stated my opinion and I would like to
add that the, just so that you have it, life safety aspect of it, the 3% grade
to the driveway, and the changing of the character of the neighborhood, from
two and three acre lots to one acre lots.
Mr. Levenson: And your vote sir.
Mr. Lehigh: Negative.
Mr. Levenson: Mr. Brooker?
Mr. Brooker: I vote in the affirmative.
Mr. Levenson: You vote in the affirmative Mr. Brooker, do you have any state-
ment?
Mr. Brooker: I have no statement.
Mr. Levenson: Mrs. Roe?
Mrs. Roe: I vote yes.
Mr. Levenson: And you have no statement for the record?
OPOI
Mrs. Roe: No.
Mr. Levenson: Mr. Hirkala, Chairman?
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Mr. Hirkala: I am going to vote no. And the reason I am voting no is, because I
don't believe that the practical difficulties were proven, I see disparity in
the records from the statements of the mother, in the first variance request
that was granted, and the fact that this application is different from the
first on. And the fact I don't believe that the, as I stated before I think
that the Zoning Board, the fact that the Zoning Board is a legislative matter
in this particular application, bordering on the difference between the Zoning
Board of Appeals legislating and granting variances. I think at this point in
time this application is at the point where the Zoning Board of Appeals is
legislating. And I think the proper move is for the people who have agreed to
accept Mr. Fays, the people who live in Mr. Fays neighborhood where the prop-
erty is have agreed to go along with him on this, should make proper applica-
tion for acceptance of the Town, voted by the Town Board. Therefore I vote no.
Mr. Levenson: The record indicates that there are three ayes, two nays, and
under the rule of rehearing requiring 5 ayes, the variance is Not Granted.
Mr. Sasser: Made a motion to adjourn.
Mr. Brooker: Seconded.
Vote: All ayes.
,meeting was adjourned at 9:45 P.M.
Very respectfully yours,
Gay Ann Hardisty, Secretary
Zoning Board of Appeals