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1991-03-26fir Town of Wappinger March 26, 1991 Minutes Zoning Board of Appeals Meeting was called to order at 7:30 PM Roll Call Mrs. Roe - Present Mr. Sasser - Present Mr. Brooker - Present Mr. Lehigh - Present Mr. Hirkala - Chairman - Present Others Present APR 2 a 91 PW MI6 MM 0 Mr. Levenson - Zoning Administrator Mrs. Hardisty _ Secretary to Zoning Board Mr. Kennith Stenger, Esq Mr. Emanual Saris, Esq Mrs. Robin E. Di Michele - Senior Official Court Reporter State of New York In Town Hall 20 Middlebush Road Wappinger Falls, NY "r. Hirkala: First item on the agenda is Appeal # 1056 - The Zoning Board of 'die Town of Wappinger will hold an Adjourned Public Hearing pursuant to Section 513 of the Town of Wappinger Zoning Ordinance. At the request of Richard Fav, 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 280A 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. Representing the applicant is Mr. Stenger. Do you have anything to present before the Board? Mr. Stenger: There is a report that should be put into the record. Mr. Levenson: Mr. Chairman, I liked to put the on site report in and the Fire Prevention Bureau's report in. I'd like to read it so the reporter has it in the record. Mr. Hirkala: Please. Mr. Levenson: To the Zoning Board of Appeals, from Herbert J. Levenson, Zoning Administrator. Regarding on site inspection report, ZBA Appeal # 1056, held at Johnson Place, March 13, 1991 at 5:OOPM. Present, Thomas F. Classey, Building Inspector, Mark Liebermann, Fire Inspector, Herbert J. Levenson, Zoning Admin- istrator, Richard Fay, Applicant, Kennith Stenger, Esq, Attorney for the applicant, Michael Hirkala, Chair -person, Zoning Board of Appeals, Alan Lehigh, Member, Zoning Board of Appeals, Joel Sasser, Member, zoning Board of Appeals id several Members of the Fire Prevention Bureau. The above group assembled at *:00 PM at the head of Johnson Place and Cedar Hill Road. We discussed the submitted survey and the Mark Liebermann, Fire Inspector and the undersigned rode the entire length of Johnson Place, and found Johnson Place to be comple- tely black top and 100% accessible, with several driveways and a cul-de-sac at EM (2) the end which could be used for turn arounds. It basically is approximately one and a half car width wide. On return to the top of Johnson Place Chief Robert Colden directed the New Hackensack Fire Department Tank #1 ( loaded with 2000 gallons of water) to attempt to negotiate Johnson Place. Tank #1 negotiated Johnson Place with no difficulty at all. It was the consensus of the people present that we would recommend to the Zoning Board of Appeals, that Johnson Place was a safe road, and the Fire Prevention Bureau had no problems. Herbert J. Levenson, Zoning Administrator. Mr. Brooker: I have one problem with that, Robert Colden is not Chief of the New Hackensack, Fire District. Mr. Levenson: I didn't say he was the Chief. I said Chief Colden. Mr. Brooker: Chief Robert Colden. Mr. Levenson: Yes, all chiefs retain the right to Chief. Mr. Brooker: Past Chief. Mr. Levenson: I still retain the right to Chief. "r. Brooker: You do? I don't it's past Chief. '4r► Mr. Hirkala: I don't think it really matters. Mr. Levenson: We are getting into semantics that's what we are getting into. Mr. Hirkala: How about the, Mr. Levenson: The Fire Prevention Bureau report, is addressed to me. Dated March 14, 1991, regarding L/O Fay Johnson Place. Dear Herb, Please be advised that as a result of an on site inspection of the above caption subdivision on March 13, 1991 the Fire Prevention Bureau has determined that Johnson Place is in conformance with Section 477.5 of the Zoning Ordinance in that all proper- ties and the proposed subdivision are accessible to fire apparatus and that the existing road will support a fire truck. EPB member George Budd operated New Hackensack Fire District Tank -1, a 2000 gallon tanker along the entire length of Johnson Place with no problems entering or exiting the property. Prior to the above inspection, former New Hackensack Fire Chief Robert Colden operated New Hackensack Fire District Engine -1- the entire length of Johnson Place with no problems. The above site inspection was attended by Fire Inspector Mark Liebermann, Building Inspector Tim Classey, Fire Prevention Bureau Chairman Robert Colden and members Ron Andrews, George Budd and Robert Ashworth Sr. who all agree that this right of way conforms to the aforementioned section of the Zoning Ordinance of the Town of Wappinger. Yours truly, Mark Liebermann, Fire Inspector and Robert Colden, Chairman of the Fire Prevention Bureau. I would request Mr. Chairman, that you direct these items to be marked in evidence and %Wjrned over to the Court Reporter. Mr. Hirkala: So done. Anything else? Mr. Levenson: That's all we have. Mr. Stenger: Mr. read a summation I'd like to start the record. M (3) Chairman, my remarks are very brief tonight. But I want to of the evidence before you and some legal thoughts on that. So off if there is anyother factual evidence that should go on Mr. Hirkala: Anybody else who wants to speak before this Public Hearing, to say something that hasn't been said before? No other comments? Mr. Stenger: Fine, by way of summary on this. There is 3 points to what I want to say to you tonight. I want to first speak to you of what I think was shown you and it can't be disputed on this record. I've shown you that Richie's application as it presently stand is identical, to the application of Mr. Price and Mr. Johnson before him. Which were approved and were used as a base for two lot subdivisions. We've shown you that when Richie brought, there was a three lot variance in place. As the consequence of litigation it was rescinded, and as a result of that action, which was not a hardship that he created, the value of his property diminished from $70,000 to $61,000. We showed you that based on the testimony of Mr. Reese. And we have his appraisal in the record. The main issue that I heard a lot about at the last meeting was the road. So we've now shown you that in the opinion of the Fire Prevention Bureau, that you asked for, you asked for at the conclusion of the last meeting. That the road in their opinion applys with Section 477.5 of the Zoning Code. We also attempted during the interim period in the, in effect to conciliate rather then onfront the situation with the neighbors, to convene a meeting in my office. I tried to do that by letter dated February 28th. I didn't speak to any individ- ual neighbor, my secretary did. She advised me that Mr. Fernandez was to busy to make it to the meeting after work. Mr. Price, wanted to reschedule the meeting, which we would welcome. But we have not heard. And the Mr.O Brien was just not going to attend the meeting. It is not really relevant to the consid- eration tonight. But I thought that you should know, that we tried to go the extra step to harmonize this thing. We couldn't get there before this meeting. The last issue. I've been going through my head saying, well what could it be that might make your concerns such that you turn down this application. That we haven't addressed, and I think the only issue that I've come up with, if I'm .sitting on your table is, well we passed those first two variances, and we set up a precedent for this third one. Now what happens if we vote this? Are we setting up a prudent for a fourth or a fifth one? so I have given some thought to that. And I don't know if you will vote tonight or not, but if you don't vote tonight, I'll ask you to address there issues. With your counsel if you would please. I would say this, the last Public Hearing some of the neigh- bors said, he can get this we'll come back, because I have a three acre parcel. And I'll get mine re -subdivided. And although I appreciate the spirt of wanting to develop your own land, in this particular instance, and we are not prejud- ging that application. I wanted to underline as a Board by saying, yes to Richie Fay, your not handcuffing yourself into saying yes to everybody else who lives on that road. The reasons are very simple. In the first instance anybody who came before you on that road, with an application except possibly Mr. Sopchak, is not coming to you with an application that is exactly identical o Richie's. Because the property they brought has already been a subject of a *►ariance, it allowed the subdivision to begin with. That's a big distinction number one. Number two none of those people on that road can come to you and show you a financial hardship. None of them can come to you and say to you, when I brought my house something happened to a variance, and the value of my Fn (4) house went down. Everyone of them is going to have to show you the value of their houses went up, that's another distinguishing feature. Most importantly I think is that none of those persons, if you wish to consider these issues, and I'm not by any means opposing their applications, none of those persons will be able to come to you and say, I didn't create my own hardship. Because each and everyone of those persons purchased a lot that is in a subdivision that was already created by a variance. None of them had to have a variance or apply for a variance, to get what they wanted. They brought knowing a variance had already been granted. So without prejudging any application that may come, and I am not speaking against that, but I want to emphasize to you tonight that by saying yes to this application, does not mean that if Mr. Price comes back in with an application or Mr. Fernandez comes back in with an application or Mr. O Brien come back with an application, that you are not locked into saying yes to them. I don't know if that is a Boards concern but it seems to me it might be, and that's why I addressed it tonight. The last thing is I will point out to you, my understanding of the Law, is that it will require a unanimous vote of your Board in favor of Mr. Fays application to be approved. I read that statue about four times and it doesn't use the word unanimous, but it uses the words all members present, so that to me says unanimous. I raise that issue with you because I would hope that you know that when you vote, that each one of you, anyone of you can say no to Richie Fay. And if you say no to him I hope you do it based on the record before you. Sometimes I think when you may vote what you `eel is a matter of principle or a matter on conscience, or something that may rot be related always to the issue at hand. I don't say that that's the case here tonight. But this is a unique circumstance. A 4 to 1 vote against Richie Fay denies his application. A 3 to 2 vote in favor of Richie Fay denies his application. If the Board, if you feel that the arguments advance and consulta- tion with counsel feels that the arguments advanced warrant his approval, I would ask you all to approve it. And I would also thank you very much for the time you've given me at the last meeting and the time this evening. Thank you very much. Mr. Levenson: Mr. Chairman, I would like to relay the conversation, you don't mind Mr. Price? Mr. Price called me the other day and be asked me several question, and then he said, we would like to meet. And I believe you will concur what I say Mr. Price. I volunteered to be the mediator and leave the two distinguished counselors on the outside until, if there was an agreement, if there was an agreement then we would mediate the situation and come to an agreement. So I think the issue of getting together to decide, what is going to happen, if anything is going to happen, it's in the works. I want to qualify Mr. Prices relationship with me. I was one of the inspectors that inspected the building of the Jehovah Witness Church, and Mr. Price is a member of that Church. He knows what I did and I know what he did, we don't have any business relation at all. It is just a relationship of being involved with the Church. So I just want to clarify that. Mr. Saris: Let me just say, I think again as Mr. Stenger pointed out, this issue coming together with the relevant parties is a collateral issue, it's not %W ie issue we are here for. Let us make that quite clear. Mr. Hirkala: I also want to, I think what you mean Mr. Levenson, is any rela- tionship you have with Mr. Price is strictly due to the fact that you are Zon- ing Administrator. And he happened to In (5) Mr. Levenson: He happened to be one of the members of the Church that's all. Mr. Hirkala: Mr. Price. Mr. Price: I would just like to make a few things clear. So we get a good understanding. I respect the lawyer, he's done a fine job, with respect to how he handled this. And I wouldn't mind using you in the future. I just want to make one correction. Mr. Fay's hardship is a bit different from mine, if you can picture the whole nature of the whole situation. When I got the subdivi- sion, I was the only house. For the second piece of property. There was nothing else on the road, so the whole thing was completely different. And our argument was and still is the congestion on the road, as far as traffic going back and forth. So that makes it quite different. Now I just want to make one more thing very clear. Mr. O Reily's father died that Saturday and that's why he could not make it. And I had root canal work done in my mouth, so I was all messed up. so I told his secretary quite sincerely, I would really like to get back with him, if he is sincere about getting together, lets do it. So I left it up to the lawyer to do it. So I haven't heard from them, so it's not that we don't want to speak to them, his father died, it was no sense in me coming by myself, I went for root canal, and it was only a week we had from the time we got the letter. So it's not sincere enough. We have to have some time. One more thing I have to say. i%wr. Hirkala: ON the case at hand? Mr. Price: What we are concerned about I mean this is America, man you should be able to put up a house and live on it. But is a hardship a two lot subdivi- sion? Is that considered a hardship? Because I came and built one house, later on you subdivide and come back. If he has a hardship is it a two lot subdivi- sion, would satisfy the hardship. I don't understand it, I would feel it would be one. One more question, if the man is going to come in and he's ok'ed to put up another lot or what ever. In that it is not a road and we keep saying that it's a road, it's a driveway. We must, it is imperative that the road be widen by what 2 or 3 feet, maybe some bank run. We are not looking to spend so big crazy money, we're not looking to rip anybody off. We just got to do something. Its got to be widen 2 or 3 feet, maybe item 4 bank run, something. Were going to black top this spring, but we are going to hold off now and see what hap- pens. Mr. Hirkala: Any other comments on the issue? From the Board. The Board mem- bers have any comments as to the Public Hearing? Any members of the Board think of anything else they would like to hear? Any reason to Adjourn the Public Hearing or should we close? Mr. Sasser: I have no further comments, no questions. Mr. Hirkala: The only thing I'm thinking about is closing the Public Hearing, starts the clock, we have 60 days. *r. Levenson: May 25, 1991, Mr. Chairman. Mr. Hirkala: Ok, to come up with a decision. What bothers me in the mean time is negations takes place between the people on the street, and it turns out (6) that it's a possibility that the variance is not required. F5 Mr. Saris: The variance would still be required, it's not an issue. Mr. Hirkala: So the next thing is to close the Public Hearing and make a determination whether or not we want to have a discussion tonight on the issue, or adjourn the meeting and set a decision for a later date. Mr. Levenson: You are closing Mr. Chairman? Mr. Hirkala: We are discussing that, whether to close or not. Any reason why we shouldn't close? No reason. Mr. Sasser: I would move that we close the Public Hearing. Mr. Brooker: Seconded. Vote: Mrs. Roe: aye Mr. Brooker: aye Mr. Sasser: aye Mr. Hirkala: aye Mr. Lehigh: aye Motion carried. `fAwc . Hirkala: It is my feeling that we shouldn't vote on the issue tonight, because we haven't had a chance to go over all the information, the minutes from the last meeting we haven't gotten. And I would like a chance to review the minutes, from tonights meeting. I think therefore what we should do is set aside the decision for further discussion and go on to the next order of busi- ness. Mr. Sasser: I move we reserve the decision for a later date. Mr. Brooker: Seconded. Vote: Mrs. Roe: aye Mr. Hirkala: aye Mr. Lehigh: aye Mr. Brooker: aye Mr. Sasser: aye Motion carried. Mr. Hirkala: We will reserve decision to a later date. And the only time we can discuss this in public is unless we are in Executive Session with our attorney for any question he might have. Based on a potential decision. Mr. Stenger: we will be notified when it's back on the agenda, Right? Mr. Saris: Yes, for Public deliberation. That's fine Stenger: Someone will send a letter out and tell us when. Mr. Hirkala: Ok. Mr. Stenger: Thank you. (7) ,Nov Mr. Hirkala: The next item on the agenda is the election of a Vice Chairman. I would like to Mr. Sasser: You do that by motion? Mr. Hirkala: Is that a motion or is that appointed? Mr. Sasser: Then I would like to make the motion that Al Lehigh be vice Chair- man. Mr. Hirkala: Seconded. Vote: Mr. Sasser: aye Mr. Brooker: aye Mr. Hirkala: aye Mrs. Roe: aye Motion carried. Mr. Levenson: The other business Mr. Chairman, that came in late this after- noon. I have a letter of withdrawal from Mr. Rosenberg, to withdraw his appli- cation. His last application before the Zoning Board of Appeals. You have to act on it. %wr. Lehigh: I make a motion to accept his letter of withdrawal. Mrs. Roe: Seconded. Vote: Mr. Brooker: aye Mrs. Roe: aye Mr. Lehigh: aye Motion carried. Mr. Lehigh: Made a motion to adjourn. Mr. Sasser: Seconded. Vote: Mr. Brooker: aye Mrs. Roe: aye Mr. Lehigh: aye Meeting was adjourned at 9:OOPM Mr. Sasser: abstained Mr. Hirkala: aye Mr. Sasser: aye Mr. Hirkala: aye 4ectfully yours, n Hardisty - Zoni Board Se a ary