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1992-11-17n In Town of Wappinger Zoning Board of Appeals Town Hall November 17,1992 20 Middlebush Road Minutes Wappinger Falls, N.Y. Members Present Mr. Sasser: Chairman Mr. Hirkala: Vice Chairman Mr. Lehigh: Member Mr. Brooker: Member Absent Mr. Bitterlich: Member others Present Mr. Cappelletti Mr. Contellmo Mrs. Nelson Mr. Levenson: Zoning Administrator Dawn Idema: Secretary 1PPM@W1@ DEC 1 5. 92 ZONING e0 OOMW 0 PLANNING IM 13 Mr. Sasser: I would like to call this meeting of the Town of Wappinger Zoning Board of Appeals to order. For the information of those in the ,,audience, there is no smoking in this building. Please go outside and use the outside if you must smoke. There is an exit here and there are exits to the back. Clerk, role call please. Mr. Brooker: Present Mr. Lehigh: Present Mr. Hirkala: Present Mr. Bitterlich: Absent Mr. Sasser: Present Mr. Levenson: Mr. Chairman, all are present except for Mr. Bitterlich. As you know, he was taken to the hospital Thursday before we left for Niagara. Mr. Sasser: The first item tonight is an adjourned public hearing, Appeal 1144. Is there anyone here representing the Mansell's? I would like to move on and we will call that one later. Next item on the agenda... let's get rid of these minutes first, I'm sorry. Does everyone have a copy of the October 13th minutes? Mr. Lehigh: I've read them and I find no mistakes. I make a motion that they be accepted. Mr. Brooker: Second. Mr. Sasser: A motion and seconded. Any discussion? All in favor? k11 Ayes. n Wappinger Zoning Board of Appeals Minutes -November 17,1992 Page 2 F5 Mr. Sasser: The minutes are approved. The next item on the agenda is Appeal # 1143 - At the request of Vincent Cappelletti (Contract Vendee) seeking a variance from Article IV Section 446.815.1 requiring a minimum lot size of five (5) acres for a used car sales lot and your proposal con- tains only 0.55 acres therefore requiring a variance of 4.45 plus or minus acres on property located on Route 9 & Old Hopewell Road and being parcel #6157-02-610544 in the Town of Wappinger. Good evening Mr. Cappelletti. Mr. Cappelletti: Good evening. Mr. Contelmo: Good evening. I am Jeff Contelmo from insite engineering. Mr. Sasser: I would like, first of all, has there been proof of publication Herb? Mr. Levenson: Yes. There has been proof of publication. We have received the green cards Mr. Chairman. Mr. Sasser: O.K. We no longer have to have a motion to accept proof of publication, so we are going to by pass that. We are just going to accept that from the clerk. Does the board have any direct questions for Mr. Cap- pelletti or, I'm sorry, what was your name? �%.4r. Contelmo: Jeff Contelmo. what we wanted to just mention briefly to the board was, our firm previously represented the previous owner who made an appeal before this board. We recently have been retained by Mr. Cappelletti to represent him. We have not had a chance to sit down with him, at this point, and go over his case and go over the new zoning regulations with respect to an area variance that had taken effect as of July. We wanted to go over it with him to try to prepare some new information to present to the board. Mr. Sasser: So, at this point, you are saying that you need more time. Mr. Contelmo: We would like to adjourn it. Mr. Sasser: Well, I certainly have no problem with that. I would certainly want you to come when you are prepared and ready to present your case, fairly and fully. Does anyone on the board have any problem with that? Why don't we settle now for a date certain then. How much time do you need? Mr. Contelmo: I would just say, we just need a few weeks. Mr. Hirkala: When is our next public hearing? Mr. Sasser: Well, we have a workshop next Thursday I believe. I mean next Tuesday. Then we go into December. What is that Herb? Mr. Levenson: December 8th will be the normal public hearing. Mr. Sasser: December 8th fella's? Or do you want to move it into Janu- ary? n Wappinger Zoning Board of Appeals Minutes -November 17,1992 Page 3 Mr. Contelmo: I think that will be fine. Mr. Cappelletti: Yes, that would be just fine. Mr. Sasser: O.K. Do you want that in the form of a motion? Mr. Lehigh: I won't be here December 8th. M Mr. Sasser: We may have a problem. As you know, Mr. Bitterlich is in the hospital. He has a serious illness. The law requires that in order for you to have a variance approved, you must have the majority of an entire board. Consequently, tonight you would need three of us, if we were to vote, in order to get it. If he is not here that night and Mr. Bitterlich is not out of the hospital, you would need the entire board to vote. So, I just want you to be aware of that. That night if you have a problem with that, I certainly have no problem with adjourning it again. Mr. Hirkala: Can we set it for the 15th? There wouldn't be any problem with that. Mr. Cappelletti: December 15th? Mr. Lehigh: Are we going to have a second meeting in December? *,,Ir. . Levenson: Never have. Mr. Sasser: Well, we normally don't if we don't have to. Mr. Lehigh: So, in other words, I have no problem with moving it up then. Mr. Sasser: To when? Mr. Lehigh: The fifteenth. Mr. Sasser: Well, we may very well have other things on the agenda and have to have an eighth too. Do you have anything already on there? Then we can set it for the 15th then. How is that? Does anyone have any problems with that. Mr. Cappelletti: We know he won't be here and I'd rather have as many people here... Mr. Hirkala: All right. We'll set it for the 15th then. The postponement is not going to be an adjourned public hearing because you haven't called a public hearing, or is it going to be an adjourned public hearing? Mr. Levenson: Might I make a suggestion that you open the meeting and let Mr. Contolmo put on the record that he is requesting an adjournment. Then your adjourn until.. 'Ir. Hirkala: We're holding a public hearing, if there is anyone who wants to have any input on this in the meantime... Mr. Sasser: That's fine. Can I have a motion please. M In Wappinger Zoning Board of Appeals Minutes -November 17,1992 Page 4 Mr. Lehigh: I make a motion that we open the public hearing. Mr. Hirkala: Second. Mr. Sasser: The motion has been opened and seconded. All in favor? All Ayes. Mr. Sasser: Now accept that you say you want to adjourn this until December the 15th. Mr. Cappelletti: That's correct. Mr. Sasser: At this point would ask if there is anyone in the audience who would like to comment on that but I see there is no one here regarding this particular issue. Could we have a motion to close? Mr. Lehigh: So moved. Mr. Hirkala: Second. Mr. Sasser: All in favor? Mr. Hirkala: Wait, we can't close the public hearing. err+ Mr. Sasser: I'm sorry. Motion to adjourn. Mr. Hirkala: So, in other words he's going to have to republish, isn't he? Mr. Lehigh: No. I made a motion to adjourn to the 15th. Mr. Sasser: And a second? Mr. Hirkala: Second. Mr. Levenson: Mike, you don't have to mail again and you don't have to notify again. We'll send an agenda to the papers. Mr. Hirkala: Yea, but the point still remains if we close the public hear- ing, legally... Mr. Lehigh: I move for adjournment. Mr. Sasser: It's for the 15th, so there is no more public notice that is required by law. This takes care of it. All in favor? All Ayes. Mr. Sasser: December 15th it is then. Thank -you very much. '*mrrtr. Cappelletti: Thank -you very much. 0 IM Wappinger Zoning Board of Appeals Minutes -November 17,1992 Page 5 M Mr. Sasser: Is there anyone here representing Mr. Mansell? O.K., for the information of the board, I assume you've all received this. Let me just tell you briefly what is going on. We're not going to hear this at all. Mr. Mansell, had an agreement, allegedly had an agreement, with the people who own the property. They were going to deed that half an acre of prop- erty. We received a letter from their attorney that they do not intend on doing that. Consequently, Mr. Mansell is not the owner of the property that he is trying to get a variance on. He has absolutely no basis to be before this board requesting a variance on a piece of property that he does not own. we have an opinion from the Attorney to the Town that unless he can prove that the current owners consent to this, then he has absolutely no basis, so consequently we are going to dismiss it and not even have a public hearing. Mr. Levenson: Contract expired on November 8th. The served date was for... Mr. Hirkala: In other words, this applicant was before us as a contract vendee. Mr. Levenson: Right. Mr. Sasser: And he no longer is. 1,,4r. Hirkala: And the contract expired. Mr. Levenson: Pursuant to the letter if you read the first paragraph. They no longer have stature before the board. Mr. Sasser: That's correct. So it means, no longer has he the ability to come before us so we are just going to dismiss it. Is there any other business before the board? Mr. Hirkala: We're going to make a motion on that, right? Mr. Sasser: No, I don't think we need a motion on that. hearing. The man has no ability to even... Mr. Levenson: Can you people hear O.K? Mrs. Nelson: I was here for Mansell. Mr. Levenson: So, you understand what has happened? Mrs. Nelson: Yes. Mr. Levenson: Should we just explain to her? Mr. Hirkala: Do you need a motion on that? "%Wr. Sasser: Did we open a public hearing? It's not a public M Wappinger Zoning Board of Appeals Minutes -November 17,1992 Page 6 1..00� Mr. Levenson: No, no, what I would suggest would be waiting until quarter to eight. Give them time to make an appearance. If they don't make an appearance then just dismiss the case. Mr. Sasser: I don't even see why there is reason to wait. We are not going to hear anything further on this. Mr. Hirkala: The point being, was this public hearing opened? If the pub- lic hearing was opened, it was adjourned, we have to close the public hear- ing. Mr. Levenson: It was adjourned subject to, I believe the Farrow Nelsons getting there notification straightened out. Really, you are in an adjourned state. Mr. Sasser: The point that I am trying to make through Herb is that we are an adjourned public hearing, however, we are now in a situation that he does not even have the right to have a public hearing. Mr. Hirkala: Yea, but we have to deal with that on the record. We can't just ignore the fact that -that letter came in and here, it's on file, forget about it. We've got it on the record saying because of... Mr. Levenson: What you should do is, open up the adjourned hearing, listen 1J.',,,.;o anybody in the public that is here, read the letter into the file, then the board acts on the letter. Mr. Hirkala: Then take a motion on the letter. The motion to be to dismiss because they don't have statue before the board. Mr. Sasser: O.K. Let's go farther with it so we don't waste any more time. Mr. Hirkala: Why don't we give him another five minutes to get here, to be fair. If anybody's going to come. Are they? Mr. Sasser: Have you heard? Mr. Levenson: I spoke to him the day, what's today? Tuesday? I spoke to him yesterday afternoon on the matter and he said he'd see me tomorrow night. I'd just wait, let the record indicate to the board... Mr. Sasser: Let's just make a motion to temporarily adjourn this meeting and then we will reopen. Mr. Lehigh: Made motion. Mr. Hirkala: second. Mr. Sasser: All in favor? *ks.►Uote : All Ayes. M Wappinger Zoning Board of Appeals Minutes -November 17,1992 Page 7 Mr. Brooker: Motion to reopen. Mr. Lehigh: Second. ru Mr. Sasser: O.K. We are back on the record. I would like to call, Adjourned Public Hearing, Appeal 41144 - At the request of Timothy Mansell, seeking a variance of Article IV Section 421.6 of the Town of Wappinger Zoning Law where you are required to maintain a lot of 40,000 square feet, and you are showing 37,773 square feet. Therefore requiring a 2,227 square foot variance, caused by the Planning Boards requirements of a 25' right of way, on property located on Theresa Blvd. consisting of 2 plus or minus acres and being parcel #6257-03-410067 in the Town of Wappinger. Is there anyone here representing the Mansells? Let the record show there is nobody here. For the record, I would like to include a letter that was sent to the Zoning Board of Appeals by the firm of Larkin & Axelrod, P.C. In lieu of reading this rather lengthy letter into the record I am going to give it to Dawn. Dawn, I ask if you would incorporate this as part of the minutes please. Letter from Larkin & Alexrod. P.C.: Gentlemen: I represent Joseph M. Faro & Karla J. Nelson who own property on Cedar Hill %.load in the Town of Wappingers, Dutchess County, New York. My clients pur- chased the property from Jennifer B. Mansell and Timothy E. Mansell on November 8,1989. At the time of the closing an agreement was entered into between the parties whereby my clients agreed to convey back to the Mansells a parcel of prop- erty approximately one-half acre on the condition that the Mansells subdi- vide the parcel pursuant to certain conditions set forth in the agreement. The Mansells had three years from the date of the agreement or until Novem- ber 8, 1992 to successfully complete the subdivision or Mansell would have no further claim on the one-half acre parcel referred to above. I am enclosing a copy of the agreement dated November 8,1989 between the parties. I did not represent my clients at the time of their closing or at the time that this agreement was entered into; however, they retained me in spring of 1992 to review documents that were forwarded to them by either the Mansells or their attorney, Robert Rahemba, Esq. After reviewing the agreement and the documents that were forwarded to my clients which consisted of a deed from my client to the Town of Wappingers and other related papers, I con- tacted Robert Rahemba and advised him that my clients were ready, willing and able to comply with the agreement of November 8,1989 but were not will- ing to deed property to the Town or do anything else other than what was required of them prusuant to the terms of the agreement. I heard nothing further with regard to this matter until September 24, 1992 when I received a phone call from Mr. Rahemba who advised me that he was *%w told my clients moved to New Orleans and then out of the Country and that his clients had obtained Planning Board approval subject to my clients con- n Wappinger Zoning Board of Appeals Minutes -November 17,1992 Page 8 n veying the property as set forth in the agreement to the Mansells. My clients had not contacted me to advise they were moving from the area so I forwarded a letter to them in the hopes that it would be forwarded to them at their new address. Enclosed is a copy of my letter of September 29,1992 to my clients. On October 1, 1992, in response to my letter, Joe Faro contacted me and indicated that they had never moved from the premises and questioned where I got the idea that they had moved. I advised him that Mr. Rahemba had told me this. I subsequently sent a letter to Mr. Rahemba dated October 2, 1992, a copy of which is enclosed, which is self-explanatory. I once again reiterated that my clients have at all times been ready, willing and able to comply with the agreement of November 8, 1989 and I requested a copy of the proposed subdivision map to make sure that it conformed with the agreement of November 8, 1989. I never received a response to my letter. I subsequently received a phone call from my clients who indicated that a neighbor advised them that this matter was before the Zoning Board of Appeals on October 13, 1992. My clients never received notification of that meeting but Karla Nelson attended the meeting of October 13th at which time the matter was postponed to October 20th. Upon attending the meeting of October 20,1992, my clients were advised that the matter was adjourned until November 10th. It has become readily apparent that the Mansells have not, and will not, obtain the necessary subdivision approval by November 8,1992 is set forth in the agreement. My clients have also been advised by a neighbor that some individual has attempted to apply for a building permit for the lot that would have resulted had the Mansells successfully obtained the subdivision approval. This letter will serve to put everyone on notice that my clients will not agree to execute any documents after November 8, 1992 and withdraw any authority that was given to the Mansells pursuant to the November 8,1989 agreement. The Mansells had more than adequate time in the three years that have elapsed to take whatever necessary steps to obtain the subdivision approval. This was not done in a timely fashion and their time to obtain such approval expires on November 8, 1992, pursuant to the terms of the agreement. At no time have my clients done anything to impede the Mansells from com- plying with the terms of the November 8, 1989 agreement. Apparently the Mansells did not act in a timely manner or did they comply with the notice requirements of the municipal boards to insure that their matter was heard in adequate time. This letter will further confirm that no authority is given to any Town official or Board to take any action that affects my clients property after November 8, 1992. I would respectfully request confirmation from the Zoning Board of Appeals and the Planning Board that any application before them that effects my clients property will not be acted upon after November 8, 1992. En Wappinger Zoning Board of Appeals Minutes -November 17,1992 Page 9 %4W Thank you for your courtesy and anticipated cooperation. Yours truly, LARKIN & AXELROD, P.C. Mr. Sasser: Can I have a motion to open the public hearing, please? Mr. Hirkala: Motion to reopen the public hearing. Mr. Brooker: Second. Mr. Sasser: All in favor? FJ Vote: All Ayes. Mr. Sasser: The public hearing has been reopened. Is there anyone in the audience who like to speak, regarding Mr. Mansell? Mrs. Nelson: Like I said, I think the letter kind of sums up everything I wanted to say. Mr. Sasser: Can we have your name please? %4WCrs. Nelson: I'm Carla Nelson. The letter from the attorney, that was my only confusion. How this was going on when the contract had ended November 8th. I haven't heard from the Mansells. I never saw the proposed subdivi- sion map. So I don't know, as far as any map I had ever seen when I pur- chased the property, he had plenty of land. So, I did not know anything about why he needed a variance. I have never seen the proposed map and requested it. Mr. Sasser: The important thing that I would like to know, is at this point, you are not giving your permission for him to get this variance. Is that correct? Mrs. Nelson: Yes. He had three years from the date of purchase. Mr. Sasser: Just in case everyone on the board doesn't know, Mrs. Nelson is the owner of the property that is in question. Mrs. Nelson: So, when we bought it, we knew he was trying to do the subdi- vision. We said, "O.K., we'll give him a limit of three years to complete that". If he got approved for the subdivision, we said, "Yes, we will give you the half acre to complete your forty thousand square foot building lot." November 8th was three years and that was the deadline for his rights for that land. Mr. Sasser: I would further like to advise the Town Board of a note that was received from Al Roberts. That the town can not entertain this appli- *%,.cation without the consent of the land owner. We can not go forward, in his opinion, unless the applicant provides proof that the land owner consents. M Wappinger Zoning Board of Appeals Minutes -November 17,1992 Page 10 M We have the land owner here who has acknowledged that she is not consenting to that. Is there anyone else from the public that would like to speak? Does the board have any further comments? Mr. Hirkala: I make a motion to dismiss based on the fact that applicant has no jurisdiction. Mr. Sasser: Can I have a second? Mr. Brooker: Second. Mr. Hirkala: It has no stature before the court. Mr. Lehigh: Since I abstained before and there are three of you here, I think I will abstain this time so there is no confusion. Mr. Sasser: O.K., can I just have a role call vote please? Role Call: Mr. Brooker: Aye. Mr. Lehigh: Abstains Mr. Hirkala: Aye. Mr. Sasser: Aye. Mr. Levenson: Mr. Chairman, you have the three unanimous votes to uphold. fir. Sasser: It has been dismissed. Mr. Hirkala: Should we have it without prejudice? Mr. Sasser: Well, I don't think it is necessary. He would have to come before us again with... well, I mean if it should go through, that's what I mean. He has to be able to prove that he has either consent or that he owns the property. One of the two. Are you going to write a decision on this one? Mr. Levenson: I'm just going to write a letter that the matter was dis- missed because... Mr. Sasser: O.K. You are not going to do it in a decision. If we went this far, I think we should have a decision in file. Mr. Levenson: I'm going to write the statement of facts. Mr. Sasser: I'll stop in tomorrow and sign that. Is there any further business before the board? Mr. Hirkala: I'd like to close the public hearing, this case. Mr. Sasser: Is that a motion? Mr. Hirkala: Yes. Mr. Sasser: Second? Mr. Brooker: Second. n Wappinger Zoning Board of Appeals Minutes -November 17,1992 Page 11 In Mr. Sasser: All in favor? Vote: All Ayes. Mr. Sasser: The public hearing is closed. Any further business before the board tonight? Mr. Hirkala: Motion to close. Mr. Sasser: We have a motion to close. Mr. Brooker: I'll second that one too. Mr. Sasser: All in favor? Vote: All Ayes. Respectfully submitted, Dawn Idema, Secretary Zoning Board of Appeals In Town of Wappinger November 17,1992 Agenda - 7:30 P.M. Zoning Board of Appeals Town Hall 20 Middlebush Road Wappinger Falls; N.Y. Adjourned Public Hearing Appeal '-1144 - At the request of Timothy Mansell, seeking a variance of Article IV Section 421.6 of the Town cf Wappinger Zoning Law where you are required to maintain a lot of 40,000 square feet, and you are show- ing 37,773 square feet. Therefore requiring a 2,227 square foot vari- ance, caused by the Planning Boards requirements of a 25' right of way, on property located on Theresa Blvd. consisting of 2 plus or minus acres and being parcel ~6257-03-410067 in the Town of Wappinger. Public Hearing Appeal µ1143 - At the request of Vincent Cappelletti (CONTRACT VENDEE) seeking a variance from Article IV Section 446.815.1 requiring a minimum lot size of five (5) acres for a used car sales lot and your propasal contains only 0.55 acres therefore requiring a variance of 4.45 plus or nus acres or. property located oil Route q & Old Hopewell Road and. being *reel x6157-02-610544 in the Town of Wappinger. T6 . -Z.e,_ p•K -34-se'