1991-02-26TOWN OF WAPPINGER ZONING BOARD OF APPEALS
FEBRUARY 26, 1991
MINUTES
In
TOWN HALL
20 MIDDLEBUSH ROAD
WAPPINGER FALLS,NY
THE REGULAR MEETING OF THE TOWN OF WAPPINGER ZONING BOARD OF APPEALS WAS HELD
ON FEBRUARY 26, 1991, AT THE TOWN HALL, 20 MIDDLEBUSH ROAD, WAPPINGER FALLS,
N.Y. BEGINNING AT 7:30 PM.
ROLL CALL
MR. HIRKALA - CHAIRMAN mppmmyEm MR. SASSER
MR. LEHIGH
MR. BROOKER APR 1 91
MRS. ROE
OTHERS PRESENT am OFAPPEU)S
GAY HARDISTY - SECRETARY
HERBERT LEVENSON - ZONING ADMINISTRATOR
ALBERT ROBERTS - ATTORNEY TO THE TOWN
t. HIRKALA: MADE A MOTION TO PLACE APPEAL # 1102 THIRD ON THE AGENDA.
MR. LEHIGH: SECONDED.
VOTE: MRS. ROE: AYE
MR. SASSER: AYE
MR. LEHIGH: AYE
MOTION CARRIED.
MR. BROOKER: AYE
MR. HIRKALA: AYE
MR. LEHIGH: MADE A MOTION TO APPROVE THE MINUTES OF DECEMBER 18, 1990.
MR. BROOKER: SECONDED.
VOTE: MR. SASSER: AYE MR. BROOKER: AYE
MR. HIRKALA: AYE MRS. ROE: AYE
MR. LEHIGH: AYE
MOTION CARRIED.
MR. BROOKER: MADE A MOTION TO ACCEPT THE MINUTES OF THE SPECIAL MEETING OF
FEBRUARY 12, 1991.
MR. SASSER: SECONDED.
VOTE: MR. HIRKALA: AYE MR. BROOKER: AYE
MR. LEHIGH: AYE MR. SASSER: AYE MRS. ROE: AYE
MOTION CARRIED.
MR. HIRKALA: FIRST ITEM APPEAL # 1056 THE ZONING BOARD OF APPEALS OF THE TOWN
' WAPPINGER WILL HOLD A PUBLIC HEARING PURSUANT TO SECTION 513 OF THE TOWN OF
*APPINGER 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 280A OF THE TOWN
LAW ON JOHNSTON PLACE NOT BEING A TOWN ROAD AND ALSO A REMANDING ORDER BY MR.
JUSTICE JUIDICE, SUPREME COURT DUTCHESS COUNTY, DATED FEB. 26, 1987 AND BEING
PARCEL # 6256-01-482814, IN THE TOWN OF WAPPINGER.
m
APPEAL # 1056 ---RICHARD FAY ---SEE COURT REPORTERS NOTES ATTACRFn
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ZONING BOARD OF APPEALS : TOWN OF WAPPINGER
COUNTY OF DUTCHESS
X -------------------------------------X
PUBLIC HEARING ON APPEAL #1056
PURSUANT TO SECTION 513 OF THE TOWN OF
WAPPINGER ZONING ORDINANCE AT THE REQUEST
OF RCHARD FAY, PARCEL #6256-01-482814.
X -------------------------------------X
February 26, 1991
Town Hall
7:30 p.m.
ALSO PRESENT:
ZONING BOARD OF APPEALS
CHAIRMAN MICHAEL HIRKALA
ALAN C. LEHIGH
ALBERTA ROE
JOEL SASSER
JAMES BROOKER
AL ROBERTS, ESQ. Town Attorney
and EMANUEL SARIS, ESQ.
HERBERT LEVENSON
Zoning Administrator
GAY HARDISTY
Secretary to the Board
KENNETH STENGER, ESQ.
Attorney for Applicant
Robin E. DiMichele
Senior Official Court Reporter
State of New York
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THE CHAIRMAN: I'll call the meeting of the
Town of Wappinger Zoning Board of Appeals to order,
February 26, 1991. Please call the role.
MS. HARDISTY: Mrs. Roe?
MS. ROE: Here.
MS. HARDISTY: Mr. Lehigh?
MR. LEHIGH: Here.
MS. HARDISTY: Mr. Sasser?
MR. SASSER: Here.
MS. HARDISTY: Mr. Hirkala?
MR. HIRKALA: Here.
MS. HARDISTY: Mr. Brooker?
MR. BROOKER: Present.
THE CHAIRMAN: First of all, a small
announcement as far as fires are concerned.
There's two exits in the back, there's an exit over
here that goes directly outside. There's no
smoking in the building at all. If you have to
smoke you must leave the building.
Would the secretary advise as to whether or
not the public notice had been sent out properly.
MS. HARDISTY: All notices have been sent out
and receipts have been received.
THE CHAIRMAN: The first item on the agenda--
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MR. SASSER: Mr. Chairman, before you begin
I'd like to make a request of the Board that we
appeal 1102 item number 2 and place it third on
this agenda because I have a conflict.
THE CHAIRMAN: Anybody else on the Board have
a problem with that?
MR. BROOKER: So moved.
MR. LEHIGH: Second.
THE CHAIRMAN: All in favor?
MS. ROE: Aye.
MR. SASSER: Aye.
MR. BROOKER: Aye.
MR. LEHIGH: Aye.
THE CHAIRMAN: So moved. We have a set of
minutes from the last meeting to be approved.
MR. LEHIGH: I make a motion that the
December minutes be approved as read.
MR. BROOKER: Second.
THE CHAIRMAN: All in favor?
MS. ROE: Aye.
MR. SASSER: Aye.
MR. BROOKER: Aye.
MR. LEHIGH: Aye.
THE CHAIRMAN: So moved. We have a set of
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minutes for special meeting for approval.
MR. BROOKER: I make a motion these minutes
be accepted as written.
MR. SASSER: I second.
THE CHAIRMAN: All in favor?
MS. ROE: Aye.
MR. LEHIGH: Aye.
MR. BROOKER: Aye.
MR. SASSER: Aye.
THE CHAIRMAN: So moved. Minutes are
approved.
The first item on the agenda appeal number
1056. The Zoning Board of Appeals of the Town of
Wappinger will hold a public hearing pursuant to
Section 513 of the Town of Wappinger Zoning
ordinance, at the request of Richard Fay seeking a
variance of Article 4, Section 421 of the Town of
Wappinger Zoning ordinance, specifically Section
412 requiring street frontage and a variance under
280A of the Town law on Johnston Place, not being a
Town road, and also a remanding order by Justice
Juidice, Supreme Court of Dutchess County dated
February 26, 1987 and being parcel number
6256-01-482814 in the Town of Wappinger. Who's
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here to speak for the applicant?
MR. STENGER: Mr. Chairman, my name is
Kenneth M. Stenger. The applicant is in the
audience and the applicant's mother and previous
applicant, as it were, or predecessor in time, Mrs.
Fay is seated over there. (Indicating).
Mr. Chairman, as opening remarks I want to
make one thing very clear. I'm here to help Mr.
Fay because the story that Mr. Fay has to tell you
is very detailed in fact, very detailed in law.
The last time Mr. Fay was here he was not able to
convey that story, perhaps because he didn't
understand the import of some of the facts that
existed before this hearing. I'm not here to
intimidate the Board, I'm not here to threaten the
Board, I'm here to help Mr. Fay and hopefully, in
that process, help the Zoning Board of Appeals of
the Town of Wappinger and I want to make that very
clear because I understand how Boards tend to react
whenever an attorney appears before them.
At the beginning I would layout our
presentation. I would like to speak first as to
the history of this land. If anyone has any
difficulty hearing me please advise me. I'm just
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getting done with the flu. When I'm done with that
portion I'd like to give the floor to Mr. Riess who
is an appraiser that we've retained in connection
with these matters who has some hard factual
economic data of the economic history of this
street that he would present to you, and then I
would like the opportunity to address the Board in
conclusiary remarks, and, of course, the applicant
is here, as is his mother if the Board should have
any questions to direct or any comments from the
public.
This piece of property starts out back in
1952, well before the date of zoning in this town,
as a large parcel owned by Mike Meras and Thomas J.
McGraff and serviced by a private road. In 1952
Ilene, then Ilene Pigliacampi, then Ilene Fay
purchased the premises that are before you this
evening. They have remained that way and have been
serviced by that private road ever since that date,
so in their entirety those premises predate zoning
and can conceivably, and I would argue in another
forum, not tonight, are not non -conforming use and
allow them under 280A to get a single building
permit for that lot, but there is no need for
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application here. I just wanted to clear the
record tonight that in coming before the Board we
come before the Board seeking a 280A and a frontage
variance based on a proposed two lot sub -division,
not based on this lot which already exists which
clearly predates zoning. I just do not want to
have any misconception or that this could be
perceived as a waiver of that status.
Now, the real history of this parcel doesn't
start with Richie Fay. It starts with Mr. Price.
Mr. Price and his wife Alita purchased a 6.6 acre
parcel of real property from W. Pierce Cecil
Johnston by deed dated November 28, 1979 and filed
in the office of the Clerk on January 2nd of 1980.
Now, I have a subdivision map entitled lands of
Price. It's dated January 13, 1982 and it's
approved by the Town of Wappinger Planning Board
dated January 26, 1983. It's filed in the office
of the Dutchess County Clerk on February 2, 1983.
Now, if I may, can I approach the Board, I'll just
bring it up if you haven't seen this map yet. If
you have not seen this map, if you will look at the
survey before you that constitutes the application
of Mr. Fay, the piece of land I am describing to
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you is an L shaped piece of land that encloses the
end of the private road. If you would, the private
road might constitute a cul-de-sac bounded by Mr.
Price's land, and you can see where Mr. Price has
subdivided the land in to a proposed building lot
and an existing building lot. Now, the reason why
I bring that to your attention is that, that
subdivision could not have been had in the Town of
Wappinger if this Board, albeit differently
constituted, but this Board had considered an
application for a variance that is exactly similar
to the application before you this evening, and
passed it. It allowed Mr. Price to subdivide or
allowed Mr. Price to go to the Planning Board to
ask for permission to subdivide his land. Now,
subsequently, for a price of $20,000 the second lot
is sold to Mr. O'Riley. Mr. O'Riley purchases his
lot on-- by deed dated June 4, 1983, it's recorded
on September 1, 1983, at liber 1610, page 768.
Now, Mr. O'Riley presently lives there in a single
family dwelling and properly so, because this Board
granted the variance that allowed the subdivision,
that allowed the building permit to be granted for
that lot.
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Now, I'd like to show you another filed
subdivision map which is dated September 12, 1984.
It is filed in -- I'm sorry, not dated September
12, 1984. The approval date on it is August 28,
1984, and again, it's approved by the Town of
Wappinger Planning Board. It's filed as a
subdivision map in the Dutchess County Clerk's
office on September 12, 1984, and it is bearing map
number 7014. Now, if you'd like to take a look
I'll show this side of the Board. This map or this
parcel abuts Mr. Price's parcel, which later became
Mr. O'Riley's parcel, and it covers the entire side
of the road between Mr. Price's parcel and Cedar
Hill Road, and it again divides, or divides this
parcel into two separate building lots.
MR. SASSER: It's on the other side?
MR. STENGER: Right. The reason why I show
that to you gentlemen and lady this evening is
because in 1984 this Zoning Board considered an
application for a variance that is exactly
identical to the application before you tonight,
and granted it, and subsequently allowing the
applicant, not granting subdivision, but
subsequently allowing the applicant to have the
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permission and right to go to the Planning Board to
ask for subdivision approval.
Now, what happened subsequent to this is that
on October 18, 1984, the lot that was created is
sold by Mr. Johnston to Mr. and Mrs. Fernandez for
a price of $28,000, which means by 1984 Mr. O'Riley
has already benefited $8,000 for his $20,000
investment. Mr. Fernandez builds a house there. He
lives there to date as he rightfully and lawfully
should because this Board granted a variance that
allowed Mr. Johnston to get a subdivision. Now, in
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the fall of 1986 Mrs. Pigliacampi came before this
Board and made an application for a variance that
was exactly similar to that before you tonight
except for one major consideration. It proposed
that her -- that she be given permission to go to
the Planning Board to ask for a three lot
subdivision. This Board, again, although
differently composed this evening, granted that
application, and in fact on November 18, 1986
granted the variance to allow Mrs. Fay to do on her
side of the road what had already been granted as
permission to everybody else on the other side of
the road. Subsequent to that event Mrs. Fay, on
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January 13, 1987, sold her lot to the applicant
tonight Richie Fay for $70,000. These numbers I'm
giving you are all part of the public record
because they're reflected in the deed stamps. Mr.
Fay took title to that, paid the money to his mom,
with the understanding, and the correct
understanding, that as of that date this Board had
granted a variance and that this Board would keep
the variance in place. unbeknownst to Mr. Fay, Mr.
O'Riley, one of his neighbors had commenced a
lawsuit against the Town of Wappinger to set aside
the variance. And I say unbeknownst to Mr. Fay,
it's because Mr. Fay and Miss Pigliacampi, his mom,
Mrs. Fay are not necessarily parties to that
lawsuit. In other words, you may attack a variance
and sue the Town to set aside a variance, you don't
have to name the people who are granted that
variance in your lawsuit. Mr. Fay did not know at
the time that he purchased this lot that this
lawsuit was pending. The lawsuit brought by Mr.
O'Riley did not go to the merits of this Board's
approval of Mrs. Fay's application. Instead, it
said, I didn't receive proper notice, I didn't get
the letter in the mail. On February 26th of 1987,
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nearly a month after Mr. Fay had already paid his
$70,000 and took title to the lot, the matter was
compromised by means of a stipulation between the
Town and Mr. O'Riley by an order by Judge Juidice
which said we will rescind the variance, we will
reschedule a hearing, and we will make sure that
Mr. O'Riley gets notice this time, and then there
was a hearing at which time this Board voted
against regranting that variance. That's the
history of the Zoning Board of Appeals handling of
this land to this date.
Subsequently, this Board, when presented with
some of the information that I presented you
tonight and some of the law that I'm going to
present to you later, granted us an ability, and we
appreciate it very much, to come back and be
reheard thoroughly on this issue.
Now, at this juncture I'd like to stop the
chronology and I have asked Mr. Riess to come
tonight. I have asked him to do a study of the lot
values on that road. I have asked Mr. Riess to do
a study of the impact of this proposed application
on the structures, on the values, on the safety, on
the ability to get emergency vehicles in there, on
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those issues, and I'd like to let Mr. Riess speak.
MR. RIESS: Yes. As Mr. Stenger stated, my
name is Frank --
MR. STENGER: We prepared --
MR. RIESS: I've got copies of an appraisal
that I prepared for each of the Board members.
This is the parcel in its current state as one lot,
and this would be the values of it, if the
variances were granted.
I'm a real estate appraiser. I have offices
in Dutchess County for the last 17 years. I work
for the Housing and Urban Development doing work
for the City of Beacon, the City of Poughkeepsie,
the City of Kingston, and a good number of banks in
the area for residential mortgages.
Mr. Stenger asked me to look at the property
to basically determine current value as is. Now,
Mr. Fay purchased the property for $70,000 with the
idea that he had a three lot sub -division, or a
three lot variance at that point. He bought the
property from his mother, paid, in my opinion, fair
market value for the property at that point in
time. Approximately a month-and-a-half after he
purchased the property and closed on it the
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variance was removed. Now, that dramatically
effected the value of the property. At that point
in time his three lot subdivision was now one lot.
I don't think any of us can argue the fact that it
reduced the value from his purchase. It's my
opinion that today, and the first appraisal that
you're all looking at was prepared with the current
market value of that three lot subdivision, would
be approximately $64,000. His value, he's had a
loss of $6,000 since his purchase. He has agreed
on his own to reduce the three lot variance to a
two lot variance to basically take away the three.
He's not asking the Board for three lots anymore,
he's asking, I believe, for a two lot variance. If
that two lot variance were granted the second
appraisal that I have included would be the value
on a per lot basis of $45,000 per lot. He would
have the opportunity to turn his $70,000 investment
into a $20,000 profit over the period verses a
$6,000 loss. I think it's safe to say that every
property on Johnston Place has increased in value
over the same period. Mr. Price who had the
original subdivision into a two lot subdivision lot
has increased, he sold it for $20,000 in 1983.
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That's increased. Today the approximate value of
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that would probably be $45,000 or in the same
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bracket as our subject. The parcel Johnston to
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Fernandez would have appreciated also. Both
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variances granted, both lots have appreciated in
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value, so my answer to Mr. Stenger was no, the
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subdivision has had no negative, or the past
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subdivisions and variances have had no negative
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effects on the values of the properties. Both Mr.
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Price and the Johnston subdivision have increased
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in value.
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Now, the Price subdivision was at the extreme
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end of Johnston Lane. I don't know if your survey
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show the entire road, but the Price property would
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be approximately 1300 feet in at the end of the
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road. The beginning of our property is
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approximately 650 feet in on Johnston Lane so we're
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650 feet from the public road verses the 1300 feet
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for the previous variances that were granted. They
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were much further in. Mr. Stenger has asked me if
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I felt that the extra traffic on the road created
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by the lot would affect the value, and my answer
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again, would be no, that the traffic is actually
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only passing one parcel or two parcels in the
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beginning of the road. It's not even going back to
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the Price or the other Johnston lot. All the
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traffic would be before them, and one additional
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lot would generate two to three cars maximum on a
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daily basis and in my opinion that would not affect
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the value.
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Access to the property. There's a photograph
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or a photocopy, I apologize for not having original
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pictures in there, of Johnston Lane, along with a
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photograph. The second photograph is just the
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vacant parcel. You'll have two in there. As you
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can see, the road is level, adequate access in my
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opinion for fire vehicles, certainly more access
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than the previous two variances. They would have
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to go the entire length of the road. Our parcel is
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closer to the beginning of the road and the access,
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as you can see in the photograph, is level, and
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there would be no problem with emergency vehicles
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turning around in one of the driveways or even
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backing out. It's only 600 feet.
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MR. BROOKER: You're talking about --
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THE CHAIRMAN: Let him finish. After he
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finishes write down any notes or questions. Let
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him finish.
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MR. RIESS: As far as access to it goes, the
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previous variances were both 1300 feet in on the
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road, or are much farther in on the road than the
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subject now. Again, it would be my opinion that
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with the 600 feet or the 700 feet at most Johnston
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Lane would be suitable for emergency vehicles. I
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know of no lending restriction in the secondary
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mortgage market that would not make a residential
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mortgage or a loan on the properties because of
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this situation. It's again within reasonable
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distance to a public road, and it's access is not
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up a hill or down a hill, it's fairly level. If
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the Board has any questions now I'd be happy --
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MR. STENGER: I have one final factual thing
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I'd like to get on the record. I think the
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comments I had in mind were more in line of what
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the status of the law is in this area so I think at
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that point it would be appropriate for me to sit
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down, take comments from the public and from the
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Board so we can address them.
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THE CHAIRMAN: Would it be okay with you if
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we reserved our questions until you finish your
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presentation? Do you have a problem with that?
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MR. STENGER: No. I think we should get the
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2 public comments in.
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MR. LEHIGH: I have a problem with that. I
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would like to question the witness when he's making
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his statement right now.
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MR. STENGER: Do it right now if you'd like.
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MR. LEHIGH: First of all, you made a
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statement that the road is level. Well, I went up
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and took a trip down the road. It is not level,
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okay. I can't tell you exactly what the grade is
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on that road, but there are -- and I would like to
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clarify something else, that is not a road. That
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is, at most, a right-of-way, okay. It is not a
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road.
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MR. STENGER: If I could --
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MR. LEHIGH: Let me finish. Then I would
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also like to ask you what qualifications you have
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as to rate this safety wise. In other words, do
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you have any experience in the Fire Department? Do
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you have any experience in the Police Department?
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Do you have any experience in the Ambulance Corps
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so that you can tell me or give me a reasonable --
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your expertise to make the statement.
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MR. STENGER: Mr. Lehigh, perhaps I'm part of
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the blame for that statement. What I did in
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anticipation of this meeting is I asked one of your
Fire Chiefs to go out and look at the road, and
perhaps between his experience and my knowledge
they overlapped in the presentation which was the
last point I wanted to make which was this. The
Fire Chief went out, looked at it, I spoke to him
afterwards. I am informed that the addition of two
more lots on this road are not going to make the
circumstance any different than it presently
exists, and in fact what exists there is okay.
Now, I have asked -- I understand, I am told, that
the Fire Bureau is meeting tonight and if that
Board -- if this Board would like to go beyond my
representation to that effect, that we're invited
to go down and ask them for an opinion. So, if I
may apologize in speaking to Mr. Riess, I think Mr.
Riess may have gone on some of what I told him
because I represented that as fact.
MR. LEHIGH: I will take that as an answer.
THE CHAIRMAN: I might add along those lines,
if that were the case we would not unofficially
invite them in for comment. It would be a referral
from the Board, official comment on this particular
item from them.
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MR. STENGER: If the Board feels it's
necessary to clarify my representation, then I
would ask the Board to do that. I did cover that
base before I came here tonight because
specifically I rode on the road. I have been on
the road. I know there's a slope until you hit the
level portion of it and I wanted to know what the
Fire Department's position was going to be. I
didn't want to come here tonight and be told you
can't get heavy equipment in there. I wanted to
know if you could. I was told, I was represented
to yes, granting this variance is not going to
change the circumstances that already exist.
THE CHAIRMAN: Continue.
MR. STENGER: I'm sorry. I didn't mean to
interrupt.
THE CHAIRMAN: Are you finished?
MR. RIESS: Yes.
MR. LEHIGH: Just a clarification on my part.
THE CHAIRMAN: I'd like a reiteration of Mr.
Riess's qualifications for the record.
MR. RIESS: I'm -- I hold the designation.
S.R.A which is Senior Real Estate Appraiser of the
American Institute of Real Estate Appraisers. I'm
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-Public Hearing- 21
certified by the Department of Housing and
Development and the FHA to do work in this area.
As part of my work for the FHA on residential
mortgages, on the approval of residential mortgages
they ask for an opinion as to the health and safety
factors of all residential mortgages that they
grant in Dutchess County.
THE CHAIRMAN: Thank you.
MR. STENGER: I think if there's public
comment at this point it would be appropriate for
it to be made because we're trying to create a
factual record.
MR. SARIS: Just one quick point. On this
appraisal who is Roger Richards?
MR. RIESS: Roger is an employee of my firm.
MR. SARIS: How long has he been with your
firm?
MR. RIESS: Five to six years now.
MR. SARIS: Let me just ask one further
question. His qualifications, are they the same
as; yours?
MR. RIESS: He has similar educational
qualifications and is working on his designation.
I have signed as the reviewer and taken full
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-Public Hearing- 22
responsibility for the appraisal.
MR. STENGER: Are there any public comments?
THE CHAIRMAN: Before we get to the public
comment, I'm not too clear on the lots as you
reiterated the lots in the beginning of your
presentation. How many are there? How many lots
on that street?
MR. STENGER: Well, you have -- There are
four lots presently in existence that were created
by the granting of variances by this Board. You
have actually a total of six, I believe. Yes, six
individual lots as of this date, four of which
exist by virtue of this Board's granting the two
prior variances that I made reference to.
THE CHAIRMAN: So there are six existing
lots?
MR. STENGER: Yes. Mr. Sopchak has the lot
that extends --
THE CHAIRMAN: Could you give me a brief
explanation of the size of the lots and the
location, for the record.
MR. STENGER: You have the two maps. Can we
make the maps part of the record? I don't see why
we couldn't.
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-Public Hearing- 23
THE CHAIRMAN: You presented them. They have
to be.
MR. STENGER: The two maps will indicate to
you that the size of the lot in question, one is
2.36 acres, one is 4.32 acres, the other is 2.22
acres, the other is 2.66 acres.
MR. SASSER: Mr. Stenger, what would the size
of these two lots be?
well.
are 3.
MR. STENGER: You have that map before you as
THE CHAIRMAN: You got one, 3-- both of them
MR. STENGER: Both of which comply with
zoning.
THE CHAIRMAN: Both 3?
MR. SASSER: No, no. It's one, 3 acre lot I
presume, it would be an acre and a half.
MR. STENGER: I need the map. The map has
got a division on it, I believe. You have the
maps, I believe. It's on our side of the road, our
side of the right-of-way. The easement for the 50
foot easement that creates ingress and egress
overlaps onto our property so the lots you'll see
there are two measurements, total area of the lots
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is 1.588 acres and 1.415 acres.
THE CHAIRMAN: Is that including the
right-of-way?
MR. STENGER: Yes, 1.393 and 1.297. You
should note, however, -- I cannot tell you tonight.
My understanding is that this is not the approved
portions, so, why don't we operate for sake of this
Board and say the net area for one lot is 1.393 and
1.227. We'll assume this road improvement goes
across my client's land so we have the smallest.
But I am of the understanding that the decision on
the lot dimension will be considered by the
Planning Board if this variance is granted because
it complies with zoning as it presently exists.
THE COURT: Thank you.
THE CHAIRMAN: Let's take comments from the
public, open the floor up to the public. Step
forward and state your name, your address.
MR. PRICE: I'm Harold Price; 152 Johnston
Lane. I'm the one on the end, and I really
appreciate the intelligent comments by the
gentlemen here, but just a few reminders I would
like to let the Board know just to keep in mind in
that we do live on the road and we try to keep it
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up and want it to be balanced and within reason
within the character of the neighborhood, and we
had this put down on record the last time we were
here and we talked about the Town Law Section 102
of the Zoning Ordinance states that, "Any variance
granted must be in the spirit of the following to
secure safety from among other hazards such as
fire." Went onto say, Section 477.5 under the
heading of emergency vehicles access states in
subsection 477.51 that, "Access paths must be a
minimum of ten feet", and up to this point now I
get the impression, or I hope all of you gentlemen
know the road, it's not even a road. It's a
driveway. It's some 1100 feet, it doesn't even
have a legal slope. If we were going to try to
have it for a legal road it would have to be cut
down, all right. And then it goes onto say the
roadway is, would just about make the ten feet, all
right. And has very narrow shoulders. After the
shoulders she drops off, so if you had to bring two
fire vehicles down there one of them would go off
the side of the road. You wouldn't be able to make
it at the same time, and it's interesting to note
that this Town Law Section 102 brings out that
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-Public Hearing- 26
further, "The road must have a sufficient base to
support a 30 ton apparatus." We don't have water
pumps down there. You get a fire truck that's
loaded with water that road is going to cave in.
He wouldn't be able to come down that road. So,
we're talking about concern about the road. We
would love to see Mr. Fay appreciate the value of
his property and have homes there providing all
we've asked all the years is bring it up to legal
spec. We don't hold anybody back. We all live in
America we live here. We appreciate. Bring it
PP . g up
to legal spec so we don't have to be in danger. We
all can live in peace of mind and we have something
there. That's all we ask for. Because now you
change the character of the road because you've
gone from three or four house dwellings on the road
to two more houses. Before it was three, it wasn't
three legal lots and now we're down to two. We got
two legal lots we're talking about putting there,
more density and more congested area. This is what
compounds the problem. All we're asking, this is
what we want to put down on record, is the Town
going to be responsible for the risks on that road?
All we ask, if Mr. Fay is given a variance because
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-Public Hearing- 27
he's going to sell this property to somebody else
that doesn't even know what's going on, and they're
going to be stuck with it, what we're saying is, is
that road going to be able to tolerate a fire
truck, are we going to be safe, can Mr. Fay make it
a legal road? Thank you.
MR. STENGER: May I address that?
MR. LEHIGH: I'd like to ask him a question
before you go away, sir.
MR. PRICE: I'm sorry.
MR. LEHIGH: Have you and any of your
neighbors discussed, since you own property at the
end of the road that you probably would like to
subdivide, have you, Mr. Fay, and any of the other
neighbors discussed getting together and bringing
that road up to specs?
MR. PRICE: I brought it up, I have spoken to
Mr. Sopchak, yes.
MR. LEHIGH: Have you discussed this with Mr.
Fay?
MR. PRICE: No, he avoids it. We're sincere
about it. We could all appreciate that. If you
get in a united effort and you get enough people on
this thing you all could come out very nice because
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we could subdivide and make something on it but it
would cost money. We don't want a gypsy thing. We
all have very nice homes there. Our homes are
worth near $300,000. We're not looking for someone
to subdivide and put a little small ranch up there
for $120,000.
MR. SASSER: Mr. Price, your house is on the
end of the lane?
MR. PRICE: That's right.
MR. SASSER: It dead -ends into that?
MR. PRICE: Yes, sir.
MR. SASSER: May I just ask you how long has
your house been there?
MR. PRICE: We've been there ten or eleven
years. When we started it was dirt, and then when
I subdivided and sold to Mr. O'Riley the Town asked
me to at least make it a blacktop driveway, so
that's what we did. It was back in those days.
Now, where more congestion is coming in, it's
becoming more complex so we're not saying he
shouldn't build or he shouldn't be able to sell,
we're saying hey, let's make this thing
intelligent. Nice town, Wappinger, we've kept this
road nice. It's one of the nicest little lanes in
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the Town. Nice soft shoulder on it, let's bring it
up to spec so you can have some nice houses on the
road.
MR. STENGER: Mr. Chairman, if I can just --
THE CHAIRMAN: Are you finished?
MR. LEHIGH: Yes. I had another, but no, I
think that's enough.
THE CHAIRMAN: You had something?
MR. STENGER: Yes, I do. Mr. Chairman,
there's two comments I'd like to make in response
to Mr. Price's statement. If there's any
endangerment by virtue of fire equipment going up
and down that road to Mr. Price's present residence
it's certainly self created in that he's the one
that put the road in when he subdivided many, many,
many years ago. If there was a problem with
getting heavy equipment back to he and his house
today there still is that problem many, many years
ago. More importantly I want to speak to the issue
of sharing that road. I would think if I was a
neighbor of Mr. Fay I would be concerned about what
does Mr. Fay think he's going to do, come in and
get a subdivision, going to get a free ride on my
back. I would like to put in-- Those are
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legitimate concerns for people who have worked hard
to get the privacy that I have seen in that
neighborhood that I went to see. It's a beautiful
little spot. I would say to you, and I would like
to put in the record a copy of a road maintenance
agreement dated December 23, 1986 recorded in the
office of the Dutchess County Clerk. That
agreement is between Mr. and Mrs. Fernandez, Mr.
and Mrs. Price, and Mr. and Mrs. O'Riley. Those
neighbors have pulled together and they maintain
that road and they take care of it on their own
because they have a sense of community back there.
They have an agreement, because in the event any
one of them sell their house to a third party whose
ever moving in to that neighborhood, they're going
to have to assume those obligations. Mr. Fay, if
this variance is granted and then were allowed to
go discuss the matter with the Planning Board,
which we know getting this variance granted is not
a guarantee of Planning Board approval, stands
ready and willing to join in with his neighbors in
this agreement if they will make room for him, in
fact, I read the minutes from the last time we were
here and one of the larger concerns expressed, I
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believe by Mr. Price, was that there was $15,000
put out by Mr. Price to put that driveway in, and
to Mr. Fay, it wasn't put nastily, put in a
concern, did Mr. Fay have a feeling about what his
contribution is going to be here. Well, I will
also say to you that in the context of tonight's
appearance I have been authorized to say by Mr. Fay
that if there was a contribution by everybody on
that road to the construction of the road as it is
to date, and if he gets a two lot subdivision he'll
be more than happy to make a pro rata contribution
to the construction of that road to date and be
more than happy to take two shares of the
responsibility under this road maintenance
agreement. I cannot sit here and say to you that
we will be willing to bring the road up to town
specs, or I should say the driveway up to town
specs because I don't know what the cost is, and by
Mr. Price's own volition half the people on that
driveway have not been consulted with the matter,
but I can express to you that this agreement, which
I will show to the Board that the neighbors are
very happy with apparently, we would be very happy
to be a part, and in fact, we would very much want
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to be a part of it because it would guarantee
everybody the quality of life they have back there.
THE CHAIRMAN: I have a question for you, Mr.
Stenger. We know how many lots exist on that lane.
How many buildings exist on that lane?
MR. STENGER: Presently -- Well --
SPECTATOR: Four.
MR. STENGER: If you count Mr. Sopchak, he
counts on the lane as well. Maybe five.
THE CHAIRMAN: Mr. Sopchak had a legal lot on
the Town road.
MR. STENGER: Exactly.
THE CHAIRMAN: Accessed off the lane.
MR. STENGER: I have three that are accessed
off the lane.
THE CHAIRMAN: So that leaves two empty lots.
MR. PRICE: It's five off that.
THE CHAIRMAN: Isn't Mr. Johnston's front on
the road?
MR. PRICE: No, they all go off the lane.
MR. STENGER: I stand corrected. I thought
when I went back I saw Mr. Johnston's house fronted
on the road, then there would be four lots
presently accessed by the lane.
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THE CHAIRMAN: So Mr. Fay's property does not
have any building on it presently?
MR. STENGER: No it doesn't.
THE CHAIRMAN: That's the only one on the
lane that does not have a building?
MR. STENGER: That's the only entire lot
that's unimproved by building. That's correct.
THE CHAIRMAN: Anybody else in the audience
have anything to say? Step forward. State your
name and address.
MR. HUFF: My name is Emil Huff, I live in
Brandon Place in Wappingers Falls. I bought Mr.
Johnston's house on the corner approximately a year
ago. I have not been involved in this to this
point. I listened this evening. I think the
representation of the road is totally
inappropriate. If that's a level road then I'm
going to have a cardiac arrest going up and down
it. I rent the property out on the corner. I'm
all for, if the subdivision is the appropriate
thing. I think the road is not adequate, it's a --
it's not a road. I have to agree with Mr. Price,
it's a one lane, whatever you want to call it. It
has been blacktopped over the period of years and
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my whole point is that if a subdivision were
appropriate in that area I think that a road would
have to be put in there for some reason. The
access to the road is not that good, and again,
turn around areas are not that good, so my whole
concern would be about the road.
THE CHAIRMAN: Anything else?
MR. HUFF: Nope.
THE CHAIRMAN: Thank you, sir.
THE CHAIRMAN: Anybody else have a comment?
Step forward and state your name.
MR. O'RILEY: My name is Mr. O'Riley; I live
on Johnston Lane also, and I just wanted to express
a few points.
The history was very good, very accurate, but
I did want to say one thing about that. We filed
that appeal within 30 days of that decision of the
Board to have that decision overturned, so we did
everything legally the way we should have, and as
far as not notifying Mr. Fay or Mr. Fay not
knowing, that really can't be, you know, our
concern, because a person buying a piece of
property under those conditions should at least
wait that cooling off period before plunging down
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$70,000 on it. I want to talk about the condition
of the road also. The road down where I live,
again, is definitely not flat. It's a very steep
road. As a matter of fact I have gotten stuck in
it a few times trying to get out of my driveway on
winter days. It's crumbling down by my driveway.
It would not support a 30 ton fire apparatus, so
I'm not sure, I can't really argue with the Fire
Chief, but I don't see how you can put a 30 ton
fire truck on that road and expect it to get all
the way down to the bottom. So, conditions have
changed. I know the Board granted us the variances
to build our homes, but since then, and I don't
know how you can -- whether or not you can legally
argue that, you're the lawyer, but I can't, but the
fact of the matter is conditions have changed.
There is now three houses on that road and there's
potential for at least six to eight drivers on that
road. There's young children on that road also,
and so when those variances were granted it was
granted and there were no houses at the time, and
at this point now to think about putting on two
more homes for Mr. Fay and then opening up the
possibility, since he can subdivide, for myself to
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subdivide, for Mr. Fernandez to subdivide and Mr.
Price to subdivide, because I'm certain that all
the arguments, if those arguments hold here tonight
for Mr. Fay then certainly I can use those
arguments to subdivide my property next week or the
week after, and I would intend to do that. But, as
far as Mr. Price is concerned and Mr. Fernandez, we
signed those maintenance agreements that they
showed to the Board because we had to in order to
obtain mortgages, okay, and we certainly appreciate'
his concern and offer to maintain the road, but at
this point we feel that our biggest concern we have
right now is that road and the safety of the road,
the children on the road and the traffic that is
going to bring about on a very, very steep narrow
road that is really falling apart. The lots that
he's talking about putting up are 1.5 acres or so,
1.4. Ours are 2.6 and I think that will have an
effect on the property. As far as maintenance on
the road and offering, you know to join in with us
on the maintenance of the road this thing has been
going on for four or five years and nobody has come
to approach us about maintaining that road, and I
appreciate your comments that you made and the fact
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that maybe in the future he'll approach us, but I
think if they knew this was all a matter of record
and our major concern was the road, that they
should have at least approached us before tonight
and talked to us about it. So that's our concerns
basically about that road.
MR. LEHIGH: I have a question for you.
THE CHAIRMAN: One second. For the record
could you say which lot is yours?
MR. O'RILEY: I'm on 124. I bought the lot
from Mr. Price, right up from him. I think I'm
directly --
THE CHAIRMAN: Would you identify it on the
tax map? Either one of these maps you presented.
MR. O'RILEY: Actually, to see all of them I
guess this is the only one. It's not in
prospective.
THE CHAIRMAN: This map right here?
(Indicating)
MR. LEHIGH: My question would be the same to
you as it was -- Sir? My questions to you would be
the same as it was to Mr. Price. Since you all own
property in there that you probably would like to
subdivide, have you ever discussed bringing the
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road up to specs with Mr. Fay?
MR. O'RILEY: No, I don't believe we have
ever talked to him about that.
MR. LEHIGH: Thank you.
MR. STENGER: Mr. Chairman, I have a couple
questions of the witness. Mr. O'Riley, did you --
what's your professional credentials? What do you
do for a living?
MR. O'RILEY: I work in data processing.
MR. STENGER: Do you have any engineering
training?
MR. O'RILEY: None at all.
MR. STENGER: Did you hire an expert to
evaluate the capability of that road to carry the
weight of any emergency vehicle in this Town?
MR. O'RILEY: Well, I just assume --
MR. STENGER: I'm asking, did you do that?
MR. O'RILEY: Since my car sinks into it I
assume that a fire truck of 30 tons would also.
Common sense. I don't need a degree for that.
Thank you.
MR. STENGER: Mr. O'Riley, just not quite
done. Did you hire a traffic consultant to
indicate what the increase in traffic would be?
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MR. O'RILEY: No.
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MR. STENGER: Thank you. One thing I'd like
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to point out to the Board is that Mr. O'Riley's
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home is located primarily to the north, I should
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say to the south of the -- if you look on your map
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anyway, Mr. O'Riley's home is located adjacent to
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Mr. Price which is on the southern most portion of
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the road which would front against approximately
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half the frontage involved with Mr. Fay, not
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against the entire thing. I'd like Mr. Riess to
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address the issue of any decrease in value to Mr.
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O'Riley's investment with respect to the fact that
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these lots would be less than 2 acres or 1.3 acres
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as opposed to the existing prevalence of 2 plus
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acre lots.
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MR. RIESS: Again, I don't know if I made
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the road would not negatively affect the values of
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any of the other properties. I don't think there's
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any way to say that there would, any way to
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document or prove that it would affect the values.
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MR. STENGER: Finally, I would reiterate my
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offer, at this time I'd like to adjourn this
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-Public Hearing- 40
decision for 30 days which is entirely
discretionary on the Board. I stand ready to meet
Mr. O'Riley and his attorney, Mr. Price and his
attorney and see how that works if Mr. Fay were to
get the approvals to go in there, because he's
certainly going to go in there with one house
anyway. We would say to this Board we stand ready.
This Board can adjourn tonight and if in 30 days if
I meet with Mr. Price and meet with Mr. O'Riley, if
they want to integrate an effort to maintain that
road with two more lots to share the cost of doing
that, we stand ready to do that. Because we
haven't achieved that tonight, doesn't mean-- until
about a month ago we didn't know we would be back
here. We spent two years trying to get back here.
THE CHAIRMAN: Wait a second.
MR. ROBERTS: Mr. Chairman, may I speak?
THE CHAIRMAN: I'd like our attorney to enter
into this conversation.
MR. ROBERTS: Mr. Stenger, I'd like to refer
you to Section 200 of the Town Law which authorizes
a petition to be made to the Town Board for the
improvement of a roadway. I don't know the overall
width of the right-of-way. It appears --
low
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MR. STENGER: It's 50 feet.
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MR. ROBERTS: On your subdivision map it
4
shows 25 feet as your access. The implication
5
being that there is an additional 25 feet on the
6
lots on the other side. I don't know that for a
7
fact.
8
MR. STENGER: It's 50 feet, right?
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MR. O'RILEY: The right-of-way is 50 feet but
10
the road slopes down the side so it's 50 feet down.
11
MR. ROBERTS: It's indicated on the
12
subdivision map that it's 25 feet and I assume
13
that's his half.
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MR. STENGER: That's correct.
15
MR. ROBERTS: You might want to explore that
16
in your deliberations in Section 200 of the Town
17
Law. The costs of that, of course, will be borne
18
by the abutting lot owners on a pro rata basis.
19
THE CHAIRMAN: Anything else?
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MR. ROBERTS: Yes. You've introduced this
21
appraisal and I would at least like it marked so
22
that we can introduce it formally. Why don't you
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use the original.
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MR. STENGER: We can mark the two maps as
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exhibit one and two and the appraisal exhibit
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MR. LEHIGH: I'd also like the road agreement
marked as an exhibit also.
MR. STENGER: That would be exhibit four and
a copy of it, Gay, if we can have it when you're
done.
(Two maps were deemed marked as Exhibits one and
two respectively, as of this date).
(An appraisal was marked as Exhibit three, as of
this date).
(A road agreement was marked as Exhibit four, as of
this date).
THE CHAIRMAN: Finished for now? Anyone
else? The lady behind you.
MRS. FERNANDEZ: We're married.
MR. FERNANDEZ: My name is Albert Fernandez,
I live right next to Mr. O'Riley. The question
that's comes up again is the road. I have a kid
also there, a young boy. Everybody else has young
children in there. If anybody was to go there and
look at that road the way it looks, many times I
get out of my driveway, try to come up the road and
I have to back down to let the other individual go
by. Of course, we're not against Mr. Fay to build
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there, that's not the thing here. What it is, is
if he wants to build there he should really widen
the road or do something about that road, because
I'm concerned with my family. The statement was
made that a truck would get in there. Yeah, a
truck could get in there but that's about it. The
truck can't turn around anywhere because there's no
place to turn around. The entrance to my driveway
is very narrow. The hill is very steep. In
wintertime it's a mess. It ices up, it doesn't
melt, especially around my area there, right in
front of my home. It's a sheet of ice there. Mrs.
Price, one time she slid off the road into my
property because there's a ditch down there. We
had to get here out. I think this would be a
terrible idea to put two more homes. There is an
existing 15 vehicle on that road. As it is, it
creates a big problem. If you're going to add
more, of course, Mr. Sopchak, he would like to
subdivide his land also because he has property
there to be subdivided. I have land that I could
subdivide, Mr. Price has three acres of land, Mr.
O'Riley has an acre of land. Now, if he subdivides
why can't we subdivide on that existing road? But
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-Public Hearing- 44
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then again, how is that road going to handle all
3
that traffic? That's the only thing that we're
4
concerned about. If he wants to build, fine, but
5
let him do it right. When I moved in there I had
6
to pay close to $4,000 for that road, okay, but now
7
the road just can't handle the traffic and if
8
anybody was to go there today and look at that
9
road, it's breaking up. It's breaking up all over.
10
We're talking about getting the road perhaps
11
recapped again because it's in such a bad shape as
12
of now.
13
MR. PRICE: We're thinking about blacktopping
14
this spring.
15
MR. FERNANDEZ: So what I'm saying is we
16
should take care of that road. If he wants to
17
build there, if he wants to subdivide, that's fine
18
but let's do it right. Don't do a half assed job
19
because we got to live there. I mean everybody is
20
talking here but many people don't live there. We
21
live there. We have to watch out for it, because
22
if we don't who will. Who will be responsible if
23
anything happens there? That's all I have to say.
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THE CHAIRMAN: Could you, for the record,
25
point out which lot is yours?
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-Public Hearing- 45
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MRS. FERNANDEZ: 2.66.
3
THE CHAIRMAN: So you're the second one on
4
the right?
5
MRS. FERNANDEZ: We're between Sopchak --
6
Hoff and O'Riley.
7
MR. SASSER: The middle lot.
8
MR. LEHIGH: If you're looking down the hill
9
he's the second lot on the right.
10
MRS. FERNANDEZ: I'd just like to say I have
11
had several furniture deliveries and the people
12
will not come down the road. The men have actually
13
brought the furniture on dollies from Cedar Hill.
1%r 14
They will not come down and these trucks are not
15
huge. They will not come. I have had people slide
16
off my road into my front yard, dug huge crevices
17
because the road slopes and then they just dig
18
everything up trying to get out because when it
19
ices over there's no way that you can get up from
20
there. I have had company that have been stuck,
21
I've had people refuse to come to my house because
22
it's just very icy. The road gets very icy.
23
There's a lot of trees overhanging, a lot of nice
24
pine trees, and if the sun doesn't hit it will melt
25
and freeze, every night, melt and freeze. We have
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children playing on the road. Sometimes a car
comes down, the O'Riley's have to back all the way
down to their house and back in to their driveway.
I mean if we put four more cars what are we going
to do? Constantly go onto each others properties?
I can't understand why they would do such a thing.
If the road was wide enough it would be no problem.
I find that my property will be destroyed. People
will start going off the road. We all have four
wheel drives and it's hard enough doing it like
that. I mean I just don't understand. I could put
one house on my property. Why can't I put one more
house, it's just two more cars and he could put two
more.
THE CHAIRMAN: I hear you. You keep
repeating yourself. I want to get on. I think we
got the message the first time.
MR. STENGER: I'd like to ask Mr. and Mrs.
Fernandez a question.
MR. FERNANDEZ: Yes.
MR. STENGER: Before you might have heard
that I said my client would be willing to sit down
with you and your husband and Mr. Price and Mr.
O'Riley and if you said you're interested to do
*Mr 1
-Public Hearing- 47
2
this I would request the Board to adjourn this
3
meeting at the end for 30 days to allow us to do
4
this. We would be very happy to sit down with you
5
and try to formulate and plan as neighbors so we
6
all achieve the results and the benefits that
7
you've just described. Would you and your husband
8
be willing to do that?
9
MRS. FERNANDEZ: We have to talk about that.
10
There is alot involved. What kind of houses are
11
they going to be?
12
MR. STENGER: We're just talking about the
13
road.
%W
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MRS. FERNANDEZ: We have to talk about it.
15
I'd be willing to think about it.
16
MR. STENGER: Mr. Price, would you be willing
17
to talk about it?
18
MR. PRICE: No.
19
MR. STENGER: Mr. O'Riley?
20
MR. O'RILEY: No. I don't think it addresses
21
all the issues.
22
MR. STENGER: I think the record should
13
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reflect Mr. Price and Mr. O'Riley said they would
24
not discuss it.
25
MR. PRICE: Not at this time.
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-Public Hearing- 48
2
MR.
FERNANDEZ: Let me speak for myself.
3
THE
CHAIRMAN: Let's get on with the public
4
hearing here.
5
MR.
FERNANDEZ: It's not the thing as far as
6
discussing
the maintenance of the road. That's not
7
even what
I mentioned at first. The problem is
8
widen it.
I mean go there yourself, go there.
9
MR.
STENGER: I have been there.
10
MR.
FERNANDEZ: Excuse me?
11
MR.
STENGER: I have been there?
12
MR.
FERNANDEZ: Now you know what I'm talking
13
about. You
barely fit a car on it.
14
THE
CHAIRMAN: You should be addressing the
15
Board with
these.
16
MRS.
FERNANDEZ: He asked us.
17
THE
CHAIRMAN: I hear you. I think we've got
18
your comments on record.
19
MR.
FERNANDEZ: Okay.
20
THE
CHAIRMAN: Believe me, we're listening to
21
it. Anything else to say, Mr. Stenger?
22
MR.
STENGER: No.
23
THE
CHAIRMAN: Anyone else? No one else
24
first time. Mr. Sopchak.
25
MR.
SOPCHAK: Dan Sopchak; Cedar Hill Road,
In
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Town of Wappinger. I have the property that is
3
partially on Johnston Place and also on Cedar Hill,
4
and my feeling about the whole thing is that I
5
don't see how you can deny Mr. Fay the subdivision
6
of his land. I have the same situation as Mr. Fay,
7
okay. The road itself, the problem on that road
8
today, okay, was created when the Planning Board
9
authorized the sale and the division of the
10
property that exists today between Mr. O'Riley, Mr.
11
Price and Mr. Fernandez, okay. The problem will
12
not change much if Mr. Fay has his two lots. You
13
may have a slight increase in traffic, okay, but
14
the turn around getting a 30 ton fire truck down
15
there is not going to be any different than it is
16
today. The problem was created when the Town
17
approved -- the Planning Board approved the
18
subdivision of the land, and I think it's the
19
Town's responsibility to take over that entire
20
road. That's my feeling.
21
THE CHAIRMAN: You can't bring that to our
22
Board. That's the Town Board's problem.
23
MR. SOPCHAK: I don't know what you guys --
24
if you don't have a say -- Well, the Town Engineer
25
is here?
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-Public Hearing- 50
2
THE CHAIRMAN: No. That's the Town Attorney.
3
MR. SOPCHAK: I thought the Town Engineer was
4
here too. My feeling is I don't see how you can
5
deny Mr. Fay a subdivision because I'm saying the
6
traffic will not increase that much, and I think
7
the man has a right to make a profit or to get his
8
money back that he invested in the property.
9
THE CHAIRMAN: Thank you. Anyone else, first
10
time? Mr. Price.
11
MR. PRICE: I'd just like to clarify a few
12
things.
13
When we got the variance it was really a
14
hardship because we weren't buying for speculation,
15
in fact, I had already bought the land because I
16
originally lived in Queens and was going to bring
17
my family to Wappinger, so I had already owned the
18
property. I got a variance out of the graciousness
19
of the Town, I really appreciate it so I could live
20
there with my family and make my life, and that's
21
the same thing that happened to O'Riley. We did
22
not buy that land for speculation. To this date it
23
has never been like that. We have taken care of
24
that place, it is beautiful. We haven't even a
25
desire to subdivide. I really don't want to
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subdivide. I have four acres. I work in the city,
I see buildings all over the place. I love the
woods. I want it to stay that way. I don't want
another house around there on my property. What
they do is their business. I just want to say one
thing. You got to be very clear with this. The
lawyer asked Mr. O'Riley a question about is he
authorized to know if the road could tolerate a
truck. I developed that road. I came in there
naively and didn't know anything back in the days
when we did our own Board of Health approval and
everything else, okay. I had the road plowed
because it was a little trail. I put bank run, I
put blacktop on top of the bank run. There's no
bedrock. Can it support a 30 ton truck? I don't
have to be an engineer to tell you no.
THE CHAIRMAN: Anyone else in the audience to
comment? Mr. O'Riley.
MR. O'RILEY: I just wanted to make one more
point about Mr. Sopchak's comments. I don't see
how his position is the same as Mr. Fay. He has a
house on that road already, and he was here, if I
might remind the Board, last time trying to
subdivide that property himself also, and he was
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-Public Hearing- 52
prevented from doing that at the same hearing that
Mr. Fay was prevented, so I would assume that his
reasons for supporting this and saying that there
is no problem, when in fact there is a big traffic
problem there now and will be a greater one in the
future, is so that he can subdivide property in the
future himself.
MR. LEVENSON: I think the record should
indicate that Mr. Sopchak's denial was for a very
different reason than the denial of Mr. Fay at the
public hearing. Mr. Sopchak does not have the
required amount of land to allow the subdivision.
That's the reason for it, him not getting the
variance.
MR. O'RILEY: I was assuming it was the same
reason.
THE CHAIRMAN: Thank you. Any comments from
anybody on the Board, any questions or anything?
MR. BROOKER: 477.5. Emergency vehicle
access seems to be a big hang-up here and so forth.
I was down that road myself, personally myself,
former Chief of the Fire Department in this
district right here and I have a fire vehicle that
weighs close to that 30 ton there. I sure as hell
aw
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-Public Hearing- 53
wouldn't want to put my fire truck down there
personally if it was in my district. It would sink
that thing right down.
THE CHAIRMAN: And what was that section of
the Zoning ordinance?
MR. BROOKER: Right here. 477.5, and it goes
right down 477.53 --
THE CHAIRMAN: I just wanted it because she
didn't hear your name so I thought she didn't hear
that.
MR. BROOKER: I have to go along with that.
More particularly, we get mutual aid. If I had to
send my tanker over there it would sink.
THE CHAIRMAN: Any questions for any of the
applicants or his attorney from the Board?
THE CHAIRMAN: You wish to be heard again,
Mr. Sopchak?
MR. SOPCHAK: I just wanted to answer Mr.
James Brooker. All I'm saying is that if you're
afraid to take a 30 ton tanker down that road then
Mr. Price is in trouble. You're saying that if
there was a fire there today you wouldn't be able
to get down to his house.
MR. BROOKER: I could get down, but getting
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-Public Hearing -
back out.
54
MR. SOPCHAK: All I'm saying to you, the
problem, when Mr. Fay divided his property, divides
his property will not create any more of a hazard
than it does today.
MR. BROOKER: All I'm doing is quoting the
law.
MR. SOPCHAK: I'm telling you what the
situation is today.
MR. BROOKER: We don't want to get into
semantics here.
THE CHAIRMAN: Mr. O'Riley, one more comment.
MR. O'RILEY: Yes. Well, according to Mr.
Sopchak's comment it will create a bigger problem
because there will be additional houses so it will
be a bigger problem. There's no sense compounding
a problem that already exists. Two rights don't
make a wrong.
THE CHAIRMAN: Any other questions from
anybody on the Board? I have a question, I'm not
clear about. I've already satisfied my mind as fart
as how many houses are on that lot, but how long is
that driveway, how wide is it? Does anybody really
know?
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MR. STENGER: I haven't tape measured the
width but based upon what we see on the tax maps
it's about 1300 feet long and varies in width and
length to ten feet.
MR. PRICE: Up to the light pole up by Mr.
Huff, from the cul-de-sac all the way down the
bottom by the creek up to Mr. Huff's houses 1100.
We didn't blacktop the rest because at that time it
was Doctor Johnston --
THE CHAIRMAN: It's 1100 and from there --
MR. PRICE: To the street.
THE CHAIRMAN: To the street is how far?
MR. PRICE: I don't know. I didn't blacktop
that. It's at least another 200 and she's a tight
10 foot wide.
MR. STENGER: I think, Mr. Chairman, the key
question is not how far is the road, the driveway
from the road to Mr. Price's house, we don't go
back that far.
THE CHAIRMAN: Just for my own information.
I wanted to get an idea of what's going on.
MR. STENGER: We're only 600 feet from the
road. That's where we begin. We run another
couple hundred feet down the road.
15
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THE CHAIRMAN: Thank you.
MR. ROBERTS: What's the size of your lots?
Are they noted on the subdivision map?
MR. STENGER: Yes, they are on the proposed
subdivision map.
THE CHAIRMAN: Mr. Lehigh, you have something
to say?
MR. LEHIGH: I wonder if he's going to give
any more testimony, otherwise I have some questions
for you.
MR. STENGER: Factual end of this
presentation is over, I believe. I've got some
summation I'd like to do and share with you some
rulings of law.
THE CHAIRMAN: I'm still trying to get this
length here. You're talking your corner is 600
feet from the road?
MR. STENGER: Mr. Riess and I worked that out
with the tax map off the estimate. If you want to
take a look. Maybe Mr. Riess would be better to
address that.
MR. RIESS: It's approximately, again this is
scaled on the tax map, we start Cedar Hill here.
It's about 620 down. If you go to the tax map in
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2
the appraisal, this is Price at the end of the road
3
and O'Riley. (Indicating).
4
THE CHAIRMAN: This is 620 feet?
5
MR. RIESS: About that.
6
MR. LEHIGH: And then you got the three acres
7
here, this is what you're going to subdivide?
8
MR. RIESS: This is the three acres right
9
here. (Indicating).
10
THE CHAIRMAN: So --
11
MR. LEHIGH: So you got probably 800 feet
12
actually. You're going right down actually
13
according to this, if the map is correct, you're
14
going right down to the edge of Mr. Price's
15
property.
16
MR. RIESS: The line.
17
MR. LEHIGH: Property line.
18
THE CHAIRMAN: It's approximately 620 feet
19
plus 342 feet approximately for frontage on the
20
first lot which would make the second driveway
21
approximately a thousand feet in. So if you're
22
talking to the end of his property it would be 620
23
and 660. 660. Which would bring it to a total to
24
the end of the property for the road of 1280 feet.
25
MR. STENGER: It depends where you located
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-Public Hearing- 58
2
the driveway.
3
THE CHAIRMAN: That's a Planning Board
4
problem. I just want to get that on the record so
5
we know where we are. Okay.
6
MR. LEHIGH: If you're done with your factual
7
evidence I'd kind of like to approach two items
g
that I have, two questions in my mind. One of them
9
is alternate solutions. I've heard all the people
10
that live on the road, here we're talking road
11
again, on the driveway or right-of-way, which it is
12
definitely not a road or an accepted road or
13
anywhere near a road, that the people would like to
14
see it upgraded and made safer, more convenient. I
15
think that the people that live on that Johnston
16
Lane should get together, okay, and irregardless of
17
subdivisions or anything else, sit down and see if
lg
they can't work out something appropriate, some
19
appropriate solution amongst these people to
20
alleviate the situation. In other words, if you
21
people could all get together and bring that road
22
up to Town specs or petitioned the Town to accept
23
the road the way it is, which I don't think they'll
24
do, but you know --
25
THE CHAIRMAN: Be careful what you say now.
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I think you've gone far enough.
3
MR. LEHIGH: That's what I think you should
4
really concentrate on.
5
THE CHAIRMAN: That's between them.
6
MR. LEHIGH: That is a suggestion.
7
THE CHAIRMAN: That's not the purpose of the
8
Board sitting. The purpose of the Board sitting
9
today is to determine whether there's a valid legal
10
reason for a subdivision or not. What they do with
11
the road amongst themselves is something apart from
12
what our purpose is here tonight. He's already
13
discussed that with some of the members and it's up
14
to them to sit down privately and determine.
15
MR. LEHIGH: Let me say this, if there's an
16
alternate solution then they better take the
17
alternate solution.
18
THE CHAIRMAN: We can't make that our
19
determination.
20
MR. LEHIGH: I'm not making that
21
determination.
22
THE CHAIRMAN: We can't make our
23
determination based on what their solutions might
24
be.
25
MR. LEHIGH: Now, safety wise with that road,
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that is the same thing. If that road is brought up
3
to specification, then you eliminate the fire
4
safety, the hazard of the children playing out
5
there and everything else, and the hazard to people
6
traveling up and down that road, and you are
7
definitely going to increase the traffic on it, and
8
well, maybe not the full length of it, but pretty
9
close to it from the measurements that we got on
10
the subdivision map. So, I would definitely like
11
to see our Fire Prevention Department take a look
12
at it. That's something we can talk about after we
13
hear.
14
MR. STENGER: Am I to respond to that? Was
15
that directed for a response?
16
MR. LEHIGH: They were questions.
17
MR. STENGER: Let me say this. I think
18
you've heard me about three times say the
19
alternative means ought to be explored. You have a
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50 foot wide easement. You can widen that road,
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however you want to do it. I have asked everybody
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if they want to sit down and do that in the context
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of these proceedings, but -- and the answer has
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been negative. The issue I would like to point
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out, Mr. Lehigh, --
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THE CHAIRMAN: I don't think that's the
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issue.
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MR. STENGER: That is not the issue.
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Frankly, if that issue is to be raised at all, and
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it will be, I believe, it's properly raised in a
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subdivision before the Planning Board.
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THE CHAIRMAN: I think that the issue is
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properly raised amongst the people who live there
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and yourself or whoever, but I don't think this is
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the forum for that.
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wanted to address Mr. Lehigh's concern.
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THE CHAIRMAN: Last comment Mr. O'Riley.
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Anything new? I want to know if there's anything
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new?
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MR. O'RILEY: I just wanted to express
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something regarding his comment.
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THE CHAIRMAN: Is it about you people having
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an agreement on the road?
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MR. O'RILEY: It's about I think the Board
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should consider the matter based on the situation
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that exists right now.
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THE CHAIRMAN: That's exactly what I'm
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saying. You have a summation, Mr. Stenger?
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MR. STENGER: Yes I do.
There's two theories on which we proceed
today. We're looking for an area variance and we
would suggest to you two things.
A. There's a rule of law which applies to
the Zoning board of Appeals, I refer to the Court
of Appeals case entitled Knight -v- Amelkin
which bears citation 68 NY 2d 975. Now, this case
applies a rule that's first annunciated in a case
entitled Charles A. field Delivery Service, Inc.
THE CHAIRMAN: Excuse me. Is this part of
what you've presented?
MR. STENGER: It is a previous submission but
I want it to be reflected in the record if you can
bear with me. Yes. These cases have previously
been delivered in other packages to you, but I want
the record to reflect that they are considered
tonight. Charles A. Field -v- Lillian Robert.
That also is a Court of Appeals case citation 66 NY
2d 516. Now, the Court of Appeals, as I'm certain
you any and your attorney will advise is the
highest Court of the State of New York and whenever
there's a piece of litigation or a question that
arises from any proceeding and any Board it will go
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-Public Hearing- 63
to your local Supreme Court, then the Appellate
Division, then the highest Court to be addressed.
In Charles A. Field Delivery Service case the Court
of Appeals took a look at the circumstances where
an administrative agency, in that instance not a
Zoning Board, but a Zoning Board is an
administrative agency, considered two similar
circumstances, two similar applications, denied
one, and approved the other. The first sentence in
that decision reads as follows:
"A decision of an administrative agency which
neither adheres to its own prior precedent, nor
indicates its reason for reaching a different
result on essentially the same facts is arbitrary
and capricious."
In Knight -v- Amelkin the Court of Appeals
considered that rule in terms of the Zoning Board
decision, and it said, "We have recently held that
a decision of an administrative agency which
neither adheres to its own prior precedent or
indicates its reason for reaching a different
result on essentially the same fact is arbitrary
and capricious. Inasmuch as the Zoning Board of
Appeals performance a quasi judicial function when
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-Public Hearing- 64
considering applications for variances and special
exceptions, and completely lacks legislative power,
a Zoning Board of Appeals must comply with the rule
of the Field case." Now, in that particular case
the Court goes on to note that, "The petitioner has
succeeded in showing the existence of several
earlier determinations by the Zoning Board with
sufficient factual similarity so as to warrant an
explanation from the Board, in particular the Board
should explain why it no longer interprets the
section in question for one applicant as it did nor
another." I read it as a predicate to say to you
in light of that rule of law, if this Board is
properly turning down Mr. Fay's application it's
got to articulate reasons on the record that
differentiate Mr. Fay's application from the
applications that have come before him and have
been previously approved by this Board, including
the application of Mrs. Pigliacampi, because all
that was set aside, and your attorney will advise
you it was not set aside on the merits, it was set
aside over a procedural issue of notice to Mr.
O'Riley. So, I have listened tonight and I have
tried to discern what is the difference between Mr.
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-Public Hearing- 65
Fay and Mr. Price, Mr.- Fernandez, and guess what?
They're very similar. Mr. Price says he was a very
naive man when he purchased, and he didn't buy for
speculation when he bought in 1980. He didn't know
he needed a variance, and the Board listened to his
plea and granted him the variance.Mr. Fay
purchased when a variance was in place. It was
only time, suddenly in litigation two months later
than removed that variance. Maybe Mr. Fay is a
very naive man. Mr. Price says he didn't buy it
for speculation although he did subdivide and sell
to Mr. O'Riley almost three years later after he
purchased. Maybe Mr. Fay will sell one of the lots
to somebody else because he certainly can't live in
both.
The big issue here tonight seems to be the
issue of the road. I have gone up and down the
road. I'm certain that members of the Board have,
and I have mentioned to you the Fire Bureau has
gone up and down the road. I would speak to that.
I would say to you that I haven't heard anything
tonight that indicates that a professional
appraisal on that road makes it unfit, let's call
it driveway, that professional expert says how much
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more traffic is being generated, and I have heard
nothing tonight that says it will be any more
traffic generated or the road any more dangerous to
traverse than it was on a night that Mrs.
Pigliacampi was granted her variance or the night
that Mr. Johnston was granted his. What I have
heard is that the road is deteriorated, and I don't
know, I'm not an engineer, so I can't tell you what
degree it's deteriorated. I can say this, that the
road is deteriorating is a responsibility of the
people who live there. We've asked to be allowed
to help in that process. You can't come in and say
to the Zoning Board of Appeals the changed
circumstance that denies Mr. Fay the ability to get
his subdivision application is a deterioration of
the road, you can't say that on one hand and on the
other hand say we don't want Mr. Fay to help fix
that road because what you're doing is creating a
situation that you're using to keep another
neighbor out. Privacy is one thing, but it has to
be balanced by your Board against the rules of law
and the facts before you, so, I raise those issues
with you, particularly with respect to the road.
I raise a final issue with you which is
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-Public Hearing- 67
economic hardship. Now, I don't have your code in
front of me so I can't speak to exactly what it
says, but an area variance need only have a showing
to you that there is an economic hardship. Case
law just says, "Significant Economic Hardship." In
this instance we've given you professional proof,
expert witness proof that because Mr. Fay purchased
the lot while he had a three lot variance on it, he
paid a certain price that was market value. He
didn't get a discount from his mom, he paid market
value. We've put evidence before you that the
change of circumstances over which he had no
control or knowledge reduced the value of his
premises on its face from 70,000 to 64,000. That's
a ten percent decrease. Now, whether that's
significant in your view or not is what you will
determine, but it does trigger a test. It does say
my client has been hurt by circumstances that he
didn't create, and unlike everybody else here
tonight, he's the only person who owns a lot on
that road that's not going to be given the minimal
opportunity to get it's real worth out of it unless
this Board considers his application favorably.
Now, the other applicants here tonight they've all
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-Public Hearing- 68
benefited by this. Everyone's value has gone up
and I just don't see a compelling reason on this
record as to why, in light of the similar
circumstances before, that came before this Board
three separate times, and the actual proof of
economic loss we have before you tonight, why a
variance can't be granted so that we can go to the
subdivision procedure. You don't grant us a
subdivision approval, we just go to the Planning
Board. The Planning Board then says to us go to the
Fire Bureau, we don't like that road, we're going
to do this, we don't want that driveway there. All
those issues that have been discussed here tonight
we don't get a chance to discuss them unless you
let us go there.
I want to do two things in closing. I want
to thank you very much for reconsidering this
application and allowing Mr. Fay to get his whole
story on the record, and I ask you to please give
him the chance that everybody else on that road had
to go to the Planning Board and say, please
consider my application, I'd like the same shot as
everybody else. Thank you very much.
THE CHAIRMAN: Thank you, sir. I'll hear a
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-Public Hearing- 69
motion to close the public hearing.
MR. BROOKER: I make a motion to close the
hearing.
MS. ROE: Second.
MR. LEVENSON: Are you going to refer it to
the Fire Prevention Bureau?
MR. LEHIGH: That is what I want to do.
MR. BROOKER: I'll rescind that.
MR. LEVENSON: If you're going to send it to
the agency you have to adjourn.
THE CHAIRMAN: My concern is not so much the
referral is if it's -- if it -- if the referral to
the Fire Prevention Bureau does not come before us
other than on the practical difficulty situation
I'd like to hear from our attorney on that.
MR. ROBERTS: What was that?
THE CHAIRMAN: Would it be proper for us to
refer to the Fire Prevention Bureau on a
consideration of a practical difficulty?
MR. ROBERTS: No. I think what you're trying
to do is establish all the circumstances under
which this application may or may not be granted.
THE CHAIRMAN: Yes.
MR. ROBERTS: The -- Obviously the condition
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2
of the access is in question. Certainly 477, I
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believe, 477.5, a requirement in our ordinance
4
requires that emergency vehicles be provided with a
5
suitable access to any new site, so certainly this
6
is a consideration and an element for your
7
deliberation.
8
THE CHAIRMAN: In that light then we should
9
refer to the Fire Prevention Bureau for their
10
opinion and also to the Highway Superintendent or
11
the Town Engineer for condition of the road for
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fire access.
13
MR. ROBERTS: I don't believe --
14
MR. LEVENSON: Highway Superintendent will
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not look at a private road.
16
MR. ROBERTS: That's in essence a driveway at
17
this point and they have no jurisdiction.
18
THE CHAIRMAN: The Fire Commissioner would
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have to tell us whether or not that road is
20
adequate for fire or not.
21
MR. LEHIGH: Let me make one statement.
22
Evidence has been submitted by Mr. Stenger that he
23
has discussed this with a Fire Chief and that the
24
right-of-way is adequate.
25
MR. STENGER: Mr. Lehigh, I want to make sure
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my statement is very clear. I discussed with one
3
member of the Bureau who suggested that I request
4
the Board had a question and refer it there. He
5
traversed it, he said, and I framed my question
6
carefully, that the granting -- will this granting
7
of the variance alter in any way the safety
8
conditions of that road. That's the way I framed
9
my question because I believed that's the question
10
that's before this Board. And the answer to that
11
question was no.
12
MR. ROBERTS: I'm not going to be limited to
13
that issue, but I think the question of access by
14
emergency vehicles is an appropriate one to be
15
answered to this Board.
16
THE CHAIRMAN: Then I'll hear a motion to
17
refer to the --
18
MR. BROOKER: I move we refer to the Fire
19
Prevention Bureau.
20
MR. LEHIGH: Second.
21
THE CHAIRMAN: All in favor.
22
MR. LEVENSON: Mr. Chairman, bear in mind
23
that the Fire Prevention meets concurrent on the
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fourth Tuesday of the month so you'll have to carry
25
this over possibly to the April workshop meeting.
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-Public Hearing- 72
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THE CHAIRMAN: Do we have 60 days?
3
MR. LEVENSON: You have 60 days.
4
MR. STENGER: Mr. Chairman, just a matter of
5
clarification, I believe, and your attorney is
19
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here, maybe he can second me or criticize me. The
7
issue before the Board is not whether or not that
8
existing roadway is meeting zoning standards or is
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the preferred route, the issue before the Board is
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whether or not it's changed in the last four years
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to such a degree that it warrants a new factor that
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would warrant this Board to turn down the
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application. That's my point, not whether or not
14
what you have there is ideal, but whether or not
15
the addition of the granting of this variance with
16
make it worse.
17
THE CHAIRMAN: So noted.
18
THE CHAIRMAN: We refer to the Fire
19
Prevention Board, and also I'd like to set a site
20
inspection for this Board.
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THE CHAIRMAN: Am I correct, Mr. attorney, we
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have 60 days from the time of close of the public
23
hearing?
24
MR. LEVENSON: Right. 60 days when you close
25
the hearing. If you adjourn you can continue on.
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THE CHAIRMAN:
We might have to have an open
3
hearing for anything
we learn from the site
4
inspection.
5
MR. ROBERTS:
Do you have any objection to
6
getting the information
from the Fire Prevention
7
Bureau?
8
MR. STENGER:
Not at all.
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MR. ROBERTS:
Adjournment is on consent?
10
MR. STENGER:
Yes.
11
MR. ROBERTS:
Please let the record note it's
12
on consent.
'err 13
THE CHAIRMAN:
What we'll do after we finish
14
with Mr. Stenger we'll
move to adjourn the public
15
hearing instead of close
it.
16
MR. LEVENSON:
You have to set the site
17
inspection tonight.
18
THE CHAIRMAN:
Okay.
19
THE CHAIRMAN:
Does anybody here have any
20
problems getting somewhere before dark? 5 o'clock
21
a good time?
22
MR. BROOKER:
I have a problem.
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MR. BROOKER:
I work until 6.
24
THE CHAIRMAN:
So you can't make it?
25
MR. BROOKER:
No.
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THE CHAIRMAN: Could you take it upon
yourself to make an inspection?
MR. BROOKER: I've already been over there.
THE CHAIRMAN: If Mr. Stenger would want to
go with you or Mr. Fay would want to be with you at
the time.
MR. STENGER: We would very much appreciate
the opportunity.
THE CHAIRMAN: With Mr. Brooker.
MR. STENGER: Sure.
THE CHAIRMAN: Will you contact him?
MR. BROOKER: I'll make arrangements.
THE COURT: So you could see it at a time
when he's there.
THE CHAIRMAN: The rest of us could be there
at 5 o'clock during the week? How about Wednesday
the 13th of March at 5 p.m.
THE CHAIRMAN: Is that okay, Mr. Stenger?
MR. STENGER: Sure.
MR. SASSER: Are we meeting at the property?
THE CHAIRMAN: At the property 5 p.m. on
Wednesday the 13th of March. Is there anything
else? What about SEQRA?
MR. LEVENSON: Not until you close.
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THE CHAIRMAN: Can I have a motion to adjourn
the public hearing?
MR. SASSER: So moved. We're going to
adjourn until the next meeting which is one month.
MR. ROBERTS: On consent.
MR. SASSER: So moved.
MR. BROOKER: Second.
THE CHAIRMAN: All in favor?
MS. ROE: Aye.
MR. LEHIGH: Aye.
MR. SASSER: Aye.
MR. BROOKER: Aye.
THE CHAIRMAN: So the public hearing is
adjourned on consent to March 26th.
(Whereupon the proceedings were adjourned).
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-Public Hearing -
C -E -R -T -I -F -I -C -A -T -I -O -N
CERTIFIED TO BE A TRUE AND ACCURATE
RECORD OF THE WITHIN PROCEEDINGS AS
TAKEN AND TRANSCRIBED BY ME.
76
Robin E. DiMichele
Senior Court Reporter
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MR. HIRKALA: NEXT ITEM ON THE AGENDA APPEAL # 1103 THE ZONING BOARD OF APPEALS
OF THE TOWN OF WAPPINGER WILL HOLD A PUBLIC HEARING PURSUANT TO SECTION 513 OF
THE TOWN OF WAPPINGER ZONING ORDINANCE. AT THE REQUEST OF DR. JEFFREY BROWNSTEIN
SEEKING A VARIANCE OF ARTICLE IV SECTION 421.6 OF THE TOWN OF WAPPINGER ZONING
ORDINANCE, REQUIRING THAT YOU MAINTAIN A 40 FOOT REAR YARD, AND THAT A PROPOSED
ADDITION FOR HANDICAP ACCESS WILL REQUIRE 18 FOOT REAR VARIANCE, ON PROPERTY
LOCATED AT 115 NEW HACKENSACK ROAD AND BEING PARCEL # 6158-02-781756 IN THE
TOWN OF WAPPINGER. IS THE APPLICANT PRESENT? WOULD YOU STEP FORWARD PLEASE AND
STATE YOUR NAME.
MR. JEFFREY BROWNSTEIN: 2 TOR ROAD, WAPPINGER.
MR. HIRKALA: DO YOU HAVE ANY COMMENTS TO MAKE?
MR. LEVENSON: MR. CHAIRMAN, LET IT BE ENTERED INTO THE RECORD THAT THE PROPER
NOTICES HAVE BEEN PLACED IN THE NEWSPAPER AND WE RECEIVED ALL THE RESPONSES
BACK.
MR. HIRKALA: THANK YOU SIR. DO YOU HAVE ANY COMMENTS TO MAKE ON THE REQUEST WE
"kVE IN FRONT OF US?
�kr
DR. BROWNSTEIN: BASICALLY IT WAS SUGGESTED BY THE BUILDING INSPECTOR, SO THAT
THE UPSTAIRS OF THE BUILDING COULD BE USED, AND MEET HANDICAP ACCESS REQUIRE-
MENTS. THE REQUEST WASN'T DRIVEN BY US, IT WAS NECESSARY IN ORDER TO USE THE
PREMISES AND MEET THE HANDICAP ACCESS.
MR. HIRKALA: OK, SO EXPLAIN TO ME AGAIN, YOU HAVE TO HAVE HANDICAP ACCESS TO
THE BUILDING IN ORDER TO DO THAT YOU HAVE TO HAVE THIS VARIANCE?
DR. BROWNSTEIN: WELL, BASICALLY IN ORDER TO PROVIDE ACCESS HANDICAP ACCESS FOR
UPSTAIRS, THERE IS SEVERAL WAYS OF DOING IT. ONE OF THEM IS TO PROVIDE THE
UPSTAIRS PEOPLE WITH A DOWNSTAIRS ROOM, TO HANDLE ALL HANDICAP NEEDS. THAT'S THE
WAY WE HAVE CHOSEN TO DO IT, BECAUSE THERE ISN'T ANY OTHER PRACTICAL WAY TO DO
IT.
MR. HIRKALA: SO WHAT YOU ARE SAYING IS, THE ONLY HANDICAP ACCESS WILL BE ON THE
FIRST FLOOR.
DR. BROWNSTEIN: YES, AND THIS WILL BE A FIRST FLOOR ROOM FOR THAT PURPOSE.
MR. HIRKALA: AND THIS IS TO PROVIDE THAT ACCESS FOR THE FIRST FLOOR?
DR. BROWNSTEIN: YES.
MR. HIRKALA: ANY QUESTIONS?
. LEHIGH: I WOULD LIKE TO KNOW WHO YOU ARE PROVIDING THE ACCESS FOR UPSTAIRS.
WHAT GOES ON UPSTAIRS?
MR. HIRKALA: HE DOESN'T HAVE ACCESS TO UPSTAIRS.
MR. LEHIGH: WELL HE HAS SOMETHING UP THERE THAT HANDICAP PEOPLE HAVE TO GET
UPSTAIRS.
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DR. BROWNSTEIN: IT'S AN OFFICE SPACE, JUST OFFICE.
MR. LEHIGH: JUST OFFICE SPACE NOTHING PARTICULAR?
P5
DR. BROWNSTEIN: WE HAVE PERSPECTIVE TENANTS BUT WE CAN'T REALLY, IT WAS FOR A
MEDICAL TYPE OFFICE, AND WE DON'T HAVE C OF 0 ON THE UPSTAIRS UNTIL WE PROVIDE
HANDICAP ACCESS TO IT.
MR. HIRKALA: SO YOU ARE, BUT YOU ARE NOT GOING TO PROVIDE HANDICAP ACCESS TO THE
SECOND FLOOR?
DR. BROWNSTEIN: NO, BUT HANDICAP ACCESS FOR THE SECOND FLOOR PEOPLE ON THE FIRST
FLOOR, MEETS THE REQUIREMENTS OF HANDICAP ACCESS.
MR. LEVENSON: THEY ARE GOING TO CONDUCT THE HANDICAP BUSINESS, MR. CHAIRMAN, ON
THE FIRST FLOOR FOR THE PEOPLE.
"R. HIRKALA: FOR THE PEOPLE WHO RENT YOUR SECOND FLOOR?
DR. BROWNSTEIN: YES.
MR. HIRKALA: THEY GET TO UTILIZE THE SPACE ON THE FIRST FLOOR FOR THE HANDI-
CAPPED?
DR. BROWNSTEIN: YES, THAT'S ALL IT'S FOR.
MR. LEVENSON: MR. CHAIRMAN, I THINK YOU SHOULD KNOW, I SITE INSPECTED AND MEA-
SURED THE PROPERTY AND THIS IS THE ONLY PRACTICAL PLACE, TO PUT THIS ADDITION.
AND IT IS A REQUIREMENT OF THE NEW YORK STATE BUILDING AND FIRE CODE, THAT THEY
HAVE HANDICAP ACCESS IN THIS BUILDING.
MR. SASSER: DR. BROWNSTEIN, DO YOU HAVE A TENANT FOR THE UPSTAIRS?
DR. BROWNSTEIN: WE HAD A TENTATIVE TENANT, AND WE ARE NOT GUARANTEED HE WILL
ACCEPT. BUT HE CAN'T EVEN DECIDE TO THINK ABOUT ACCEPTING UNTIL WE HAVE THE C of 0
SO THAT HE CAN TENTATIVELY ACCEPT.
MR. SASSER: AND THIS ?S A MEDICAL KIND?
DR. BROWNSTEIN: A SPEECH PATHOLOGY LABORATORY.
MR. SASSER: UPSTAIRS AND DOWNSTAIRS ARE NOT CONNECTED, THEY ARE TWO SEPARATE
SYSTEMS?
%ft. BROWNSTEIN: OURS IS A DENTAL OFFICE DOWNSTAIRS. THE DENTAL OFFICE ROOMS WAS
MY FIRST OFFER TO THE BUILDING INSPECTOR. WE WOULD BE GLAD TO LET THE UPSTAIRS
PEOPLE USE THE ROOMS. HE SAID NO THEY HAD TO BE SEPARATE. IT'S REQUIRED THAT IT
BE SEPARATE.
MR. LEVENSON: THAT'S THE FIRE CODE.
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MR. LEHIGH: HOW BIG A ROOM ARE YOU PROPOSING? A 18X16?
DR. BROWNSTEIN: WELL, TO TURNS OUT THE ROOM WOULDN'T BE LARGE LIKE THAT. IN
ORDER TO PROVIDE HANDICAP ACCESS FOR THE DOWNSTAIRS, RIGHT ALONG THE BUILDING
IS THE HALLWAY THAT LEADS TO THE HANDICAP DOOR FOR THE DOWNSTAIRS. SO WHAT YOU
ARE LOOKING AT IS A COMBINATION OF HALLWAY AND A ROOM. AND THAT 'S WHY IT IS
LARGER THAN YOU MIGHT EXPECT. BECAUSE YOU HAVE TO CONTINUE THE ACCESS FOR THE
DOWNSTAIRS, WHICH CURRENTLY IS AN OUTSIDE WALKWAY.
MR. HIRKALA: I GUESS MY CONFUSION COMES FROM THE FACT THAT THE REQUEST IS FOR
HANDICAP ACCESS, BUT YOU HAVE TO PUT AN ADDITION ON SO YOU CAN UTILIZE THE
UPSTAIRS PORTION FOR THE HANDICAP.
MR. BROOKER: DO YOU HAVE A STAIRWELL THERE NOW?
DR. BROWNSTEIN: YES.
MR. BROOKER: IS THERE A POSSIBILITY OF USING A CHAIRLIFT?
`IwR. BROWNSTEIN: THAT WOULD BE A POSSIBILITY, BUT I DON'T THINK WE COULD REALLY
DO THIS WITH A CHAIRLIFT. THAT BACK AREA THAT STAIRWELL IS SUITABLE AS A FIRE
EXIT. IT IS A VERY LOW CEILING AND IT WOULD NOT, A TENANT WOULD NOT BRING HIS
PEOPLE IN AND OUT THERE. IT IS REALLY A BACK STAIRWELL A BACK FIRE EXIT, THAT'S
OVER THERE. THE REGULAR ACCESS TO THE UPSTAIRS WHERE YOU WOULD BRING A CLIENT OR
PATIENT IS IN THE FRONT OF THE BUILDING. BASICALLY YOU WOULD NOT BRING PEOPLE
THROUGH THERE, IT MAKES A GREAT FIRE STAIRWELL, AND IT'S APPROVED MORE OR LESS
FOR THAT. IT ISN'T A REGULAR FULL HEIGHT AND IT'S A LITTLE ABOVE MY HEAD. I SUP-
POSE YOU COULD PUT A CHAIRLIFT THERE BUT YOU WOULDN'T BRING A CLIENT THROUGH
THERE.
MR. HIRKALA: YOU COULDN'T PUT A CHAIRLIFT IN THERE AND THEN ADD ON AN OUTSIDE
FIRE EXIT?
MR. LEVENSON: NO.
DR. BROWNSTEIN: I DON'T THINK SO, WE HAD A NUMBER OF PEOPLE LOOK AT IT.
MR. HIRKALA: WE ARE LOOKING AT MAKING A MINIMUM VARIANCE, THAT'S ALL.
MR. LEVENSON: THE MINIMUM VARIANCE IS WHAT'S BEING PRESENTED TO YOU RIGHT NOW,
MR. CHAIRMAN. I HAVE DISCUSSED THIS WITH MR. CLASSEY, AND THIS IS THE EASIEST
WAY OF DOING IT.
MR. HIRKALA: THE METHOD OF WHICH WE ARE DOING THIS IS MR. CLASSEY'S RECOMMENDA-
ON?
MR. LEVENSON: THAT'S CORRECT, THE CEILING IS VERY UNRELATIVE TO THAT STAIRCASE
IN THE REAR, IS BASICALLY A FIRE EXIT, TO GET OUT OF THE BUILDING IN CASE OF A
FIRE.
MR. HIRKALA: THERE IS NO PLACE ELSE HE COULD PUT THAT ADDITION? IN THE FRONT?
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DR. BROWNSTEIN: I COULD, IT COULD BE IN THE FRONT, BUT IT WOULD NOT BE CONVENIENT
FOR THE HANDICAP. AND WOULD DETRACT FROM THE APPEARANCE OF THE BUILDING. WHEREAS
IN THE BACK IT'S JUST THE LOGICAL PLACE TO PUT IT, AND MR. CLASSEY AND MR.
LEVENSON AND ALL AGREE TO THAT. ONLY PROBLEM IS THERE WAS A SETBACK REQUIREMENT
THAT INTERFERES.
MR. SASSER: I STOPPED AND LOOKED AT THE PROPERTY AND THE SPOT HE HAS IT, IS
REALLY THE ONLY LOGICAL PLACE FOR IT.
MR. LEVENSON: AND THE OTHER THING IS THE HANDICAP PERSON CAN ALMOST PULL UP IN A
CAR RIGHT TO THAT DOORWAY.
MR. HIRKALA: IS THERE ANYONE IN THE AUDIENCE WHO HAS A QUESTION ABOUT THIS VAR-
IANCE? ANYONE ON THE BOARD HAVE ANYTHING ELSE TO SAY?
MR. LEHIGH: MADE A MOTION TO DECLARE A NEGATIVE DECLARATION.
''CR. SASSER: SECONDED.
%MM
VOTE: MR. BROOKER: AYE
MR. HIRKALA: AYE
MR. SASSER: AYE
MOTION CARRIED.
MRS. ROE: AYE
MR. LEHIGH: AYE
MR. LEHIGH: MADE A MOTION THAT DR. BROWNSTEIN BE GRANTED A VARIANCE TO BUILD HIS
HANDICAP ROOM WITH FIRE APPROVALS.
MR. SASSER: SECONDED.
MR. HIRKALA: WE MAKE IT A PART OF THE RECORD, THE RECOMMENDATION OF THE BUILDING
INSPECTOR. AND THE FINDINGS.
MR. LEVENSON: IN THE DECISION AND ORDER I WILL PUT THAT IN THE FINDINGS.
MR. HIRKALA: THERE IS PRACTICAL DIFFICULTY?
MR. LEVENSON: YES. IT WILL BE A PRACTICAL DIFFICULTY CITING THE FIRE INSPECTORS
REQUIREMENTS.
MR. HIRKALA: ALL IN FAVOR?
VOTE: MR. SASSER: AYE MR. BROOKER: AYE
MR. LEHIGH: AYE MRS. ROE: AYE
MR. HIRKALA: AYE
MOTION CARRIED.
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MR. HIRKALA: GAY, LET THE RECORDS SHOW THAT MR. SASSER IS LEAVING THE BOARD, AND
THE MEETING, THE NEXT ITEM ON THE AGENDA IS A CONFLICT.
MR. SASSER, LEFT THE BUILDING.
MR. HIRKALA: NEXT ITEM ON THE AGENDA APPEAL # 1102. THE ZONING BOARD OF APPEALS
OF THE TOWN OF WAPPINGER WILL HOLD A PUBLIC HEARING PURSUANT TO SECTION 513 OF
THE TOWN OF WAPPINGER ZONING ORDINANCE. AT THE REQUEST OF E. RICHARD, SHOULD BE
L. RICHARD RIGHT? AT THE REQUEST OF L. RICHARD ROSENBERG & SOL SILVER SEEKING A
VARIANCE OF ARTICLE IV SECTION 421 OF THE TOWN OF WAPPINGER ZONING ORDINANCE
SPECIFICALLY SECTION 412, REQUIRING STREET FRONTAGE AND A VARIANCE UNDER 280A OF
THE TOWN LAW OF CHELSEA ROAD AND BEING PARCEL # 6056-02-590514 IN THE TOWN OF
WAPPINGER. WHO IS HERE TO REPRESENT THE CLIENT?
MR. RICHARD CHAZEN, I AM WITH CHAZEN ENGINEERING AND LAND SURVEYING CO. THE
ENGINEER OF RICHARD ROSENBERG AND SOL SILVER, WHO OWN CHELSEA RIDGE. THE PURPOSE
OF THIS APPLICATION, IT STARTED WITH THE PLANNING BOARD, IS WE ARE REQUESTING A
LOT SUBDIVISION OF THE CHELSEA RIDGE PROPERTY. THE REASON TO CREATE A LOT
'opHICH, WOULD SEPARATE MR. ROSENBERG'S PERSONAL RESIDENCE FROM THE REST OF THE
PROPERTY. AS WE WENT BEFORE THE PLANNING BOARD, IT WAS BROUGHT TO OUR ATTENTION
THAT SINCE THE 1.74 ACRE LOT, WHICH WE ARE PROPOSING TO CREATE, DOES NOT HAVE
FRONTAGE ON A TOWN ROAD, WE NEED TO GO BEFORE THE ZONING BOARD OF APPEALS TO
OBTAIN A VARIANCE FROM THE FRONTAGE REQUIREMENT. WE ARE NOT PROPOSING TO CREATE
ANY ADDITIONAL BUILDING LOTS, TO PHYSICALLY ALTER THE CHELSEA RIDGE PROPERTY
WHAT SO EVER. SIMPLY TO CREATE A SEPARATE LOT THAT WOULD CONTAIN MR. ROSENBERG'S
HOUSE. THERE ARE EASEMENTS IN EFFECT PERMITTING INGRESS AND EGRESS ACROSS ALL
THE ROADWAYS IN CHELSEA RIDGE FOR THE BENEFIT OF MR. ROSENBERG. THERE ARE ALSO
EASEMENTS IN EFFECT TO PERMIT UTILITY CONNECTIONS TO THE HOUSE.
MR. HIRKALA: FOR THE RECORD I THINK IT'S IMPORTANT FOR THOSE EASEMENTS TO BE
REFLECTED IN WHAT'S PRESENTED TO US.
MR. CHAZEN: THE EASEMENTS ARE NOTED ON THE MAP THAT YOU HAVE BEFORE YOU.
MR. HIRKALA: I CAN'T FIND THEM.
MR. CHAZEN: ON THE LEFT CORNER YOU WILL SEE THERE IS A PERMANENT EASEMENT UTIL-
ITY EASEMENT.
MR. HIRKALA: WHERE?
MR. CHAZEN: ON THE LEFT HAND SIDE.
2. HIRKALA: I SEE THAT , BUT WHERE ON THE MAP DOES IT SHOW THE EASEMENT, ACCESS
*O THE EASEMENTS.
MR. CHAZEN: THEY ARE ON THERE, IF I MAY COME UP AND POINT THEM OUT.
MR. HIRKALA: PLEASE.
MR. CHAZEN, POINTED OUT ON THE MAP TO THE ZONING BOARD THE EASEMENTS.
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MR. HIRKALA: IT'S A DRIVEWAY, IT'S
MR. CHAZEN: IT'S A PAVED ROADWAY, WITH A MEDIUM IN THE MIDDLE.
MR. HIRKALA: I REALIZE THAT, BUT IT'S NOT DESIGNATED ON THE MAP AS AN EASEMENT
TO THIS LOT, WHICH IS THE POINT IN QUESTION.
MR. CHAZEN: IT IS IN FACT ALREADY A RECORDED EASEMENT. WE REFERENCE IT HERE AND
I SHOW IT IN THE METES AND BOUNDS, DESCRIPTION ON THE MAP.
MR. HIRKALA: OK. EVERYBODY GET THAT? IS THERE ANY QUESTIONS FROM ANYONE IN THE
AUDIENCE?
JOSEPH INCORONATO,
MRS. HARDISTY: I AM SORRY I DIDN'T GET THE NAME.
70SEPH INCORONATO: ACCORDING TO THE------- PROVIDED IN THE ZONING ORDINANCE. THE
%wONING BOARD OF APPEALS CAN GRANT A VARIANCE FROM THE ZONING REGULATIONS, WHERE
PRACTICAL DIFFICULTIES ARE UNNECESSARY HARDSHIPS. NOW IT APPEARS AND BY THE
STATEMENT ON THE SHORT ENVIRONMENTAL ASSESSMENT FORM, AND BY THE ENGINEERS OWN
STATEMENT THAT THERE IS NO CONSTRUCTION CONTEMPLATED HERE. SO WHERE IS THE PRAC-
TICAL DIFFICULTY OR UNNECESSARY HARDSHIP THAT IS RELATED TO THIS ALLEGED
REQUEST, THIS ACTUAL REQUEST FOR A VARIANCE? NOW IS SEEMS THAT PERHAPS WHAT IS
BEING SORT HERE IS A LOT LINE ADJUSTMENT. AND WE HAD A SIMILAR CASE I THINK WE
HAD WITH JERRY CAUDA ON KETCHAMTOWN ROAD, THE PLANNING BOARD WAS ABLE TO GRANT
THE LOT LINE ADJUSTMENT. BUT THERE IS NO CONSTRUCTION CONSIDERED HERE. WHAT'S
THE PURPOSE OF THE VARIANCE?
MR. ROSENBERG: I WOULD BE VERY HAPPY TO ADDRESS THAT.
MR. HIRKALA: I THINK WE SHOULD ASK ANYONE ELSE IN THE AUDIENCE IF THEY HAVE ANY
QUESTIONS.
MR. LEVENSON: MR. INCORONATO, IN REFERENCE TO YOUR STATEMENT OF MR. CAUDA. MR.
CAUDA HAD ACCESS ONTO KETCHAMTOWN ROAD. THIS DOES NOT HAVE ACCESS ON TO CHELSEA
ROAD, AND WHAT THEY ARE ASKING FOR IS ACCESS ON A ROAD EASEMENT THAT HAS BEEN
GRANTED TO THEM, TO GET TO CHELSEA ROAD.
MR. INCORONATO: THE ISSUE IS ACADEMIC, UNTIL A SUBDIVISION IS PROPOSED BY,
MR. HIRKALA: NO, NO, NO, NOT NECESSARILY THAT, IS NOT NECESSARILY THE CASE. THE
FACT IS HE GOT A BUILDING THERE A BUILDING LOT. HE IS ASKING FOR THE RIGHT TO
"CESS IT OFF A RIGHT OF WAY RATHER THEN A TOWN ROAD. THAT IS MY UNDERSTANDING
' THIS.
MR. CHAZEN: MR. CHAIRMAN, MAY I JUST CLARIFY THAT.
MR. HIRKALA: YES, I WOULD LIKE THAT.
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MR. CHAZEN: THE 1.74 ACRE LOT, LOT # 1 ON THE MAP BEFORE YOU AT THIS POINT IN
TIME DOES NOT EXIST. WE ARE PRESENTLY, HAVE APPLICATION BEFORE THE PLANNING
BOARD TO CREATE THAT LOT. THE AREA OF LOT ## 1 IN FACT IS A LEASE HOLD PARCEL
AND WE ARE TRYING TO LEGALLY CREATE IT AS A LOT. AND IN ORDER TO DO SO WE WOULD
REQUIRE A VARIANCE FROM THE ZONING BOARD. BUT THAT LOT DOES NOT EXIST AT THIS
MOMENT AS WE SPEAK, IT IS ALL PART OF ONE 18 ACRE PARCEL.
MR. HIRKALA: YOU HAVE SOMETHING TO SAY MR. ROSENBERG?
MR. ROSENBERG: YES. THE PRACTICAL REASON FOR THAT IS, IS THAT A LIEN OF A MORT-
GAGE THAT IS CURRENTLY ON THE APARTMENT PROJECT IS SPREAD ON THE PARCEL I LIVE
IN. AND THE INTENT OF THIS IS BASICALLY, AND THERE IS AND AGREEMENT BETWEEN OUR-
SELVES AND THE MORTGAGEE TO RELEASE THE LIEN OF THAT OVERALL MORTGAGE FROM THIS
PARTICULAR PARCEL. AND IN ORDER FOR THAT TO BE EFFECTUATED IT HAS TO BE SUBDI-
VIDED. SO THAT IS THE PRACTICAL REASON WHY THIS IS BEING DONE.
MR. HIRKALA: I STILL DON'T UNDERSTAND, PRACTICAL DIFFICULTY
%wR. ROSENBERG: WELL PRACTICAL DIFFICULTY IS THAT THERE IS A MORTGAGE THAT NOW
ENCOMPASSES A RENTAL APARTMENT PROJECT. IT ALSO ENCOMPASSES MY HOUSE, BECAUSE
MY HOUSE IS A PART OF THAT OVERALL PROJECT. WHAT I AM SEEKING TO DO NOW IS TO
REMOVE THE OWNERSHIP OF MY HOUSE FROM THE LIEN OF THAT MORTGAGE. AND THE ONLY
WAY THAT CAN BE ACCOMPLISHED
MR. HIRKALA: WHY WOULD YOU WANT TO DO THAT?
MR. ROSENBERG: EXCUSE ME.
MR. HIRKALA: WHY WOULD YOU WANT TO DO THAT?
MR. ROSENBERG: FOR A NUMBER OF REASONS.
MR. LEHIGH: SUCH AS?
MR. HIRKALA: I ASSUME THAT WHEN YOU BUILT YOUR HOUSE THERE YOU KNEW THE CONDI-
TIONS UNDER WHICH YOU WERE BUILDING YOUR HOUSE. AND I AM JUST TRYING TO MAKE A
DETERMINATION UNDER THE LAW, I CAN FIND IT WHERE THERE IS A DIFFICULTY, THAT YOU
ARE IN NOW THAT YOU WEREN'T IN BEFORE.
MR. ROSENBERG: WELL THE PRACTICAL MATTER THAT IS AT THE TIME I BUILT MY HOUSE, I
WAIVED AN AGREEMENT THAT WAS IN EFFECT WITH THE THEN MORTGAGEE, MY HOUSE WAS
EXEMPT FROM THE LIEN OF THE MORTGAGE. AT THE PRESENT TIME DUE TO A RECENT REFI-
NANCING IT WAS PUT IN AS PART OF THE MORTGAGE. THIS IS BASICALLY THE MECHANISM
�iAT IS NECESSARY TO CORRECT THAT.
MR. LEHIGH: AND HOW DOES THAT PROVIDE YOU WITH A HARDSHIP? I MEAN ARE THEY
CHARGING YOU MORE INTEREST OR?
MR. ROSENBERG: WELL IT PLACES MY OWN PERSONAL RESIDENCE IN BASICALLY IN THE SAME
VAIN AS THE RENTAL PROPERTY IS. SO THAT IN ESSENCE I, MY RESIDENCE IS A INTEGRAL
PART OF THAT COMMERCIAL ENTIRETY.
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In
MR. LEHIGH: IN OTHER WORDS IF THEY FORECLOSED ON THE MORTGAGE, THEY WOULD TAKE
YOUR HOUSE, THAT IS WHAT YOU ARE SAYING.
MR. ROSENBERG: THAT IS CORRECT.
MR. LEHIGH: WHEN YOU SUBDIVIDE IT, THAT TAKES IT OUT OF THERE, THEY CAN ONLY
TAKE THE
MR. ROSENBERG: EXACTLY, THAT WAS THE ORIGINAL INTENT AND WAS IN FACT ORIGINALLY
CREATED.
MR. HIRKALA: YOU INTEND TO DEFAULT ON THE MORTGAGE?
MR. ROSENBERG: NO. I DON'T BUT BY THE SAME TOKEN, I COULD THINK OF A NUMBER OF
SCENARIOS, STATE PLANNING USE AND SUCH, THAT COULD RENDER A SITUATION THAT
WOULD LEAVE MY HEIRS IN POSSIBLY A DIFFICULT SITUATION.
"R. HIRKALA: YOU KNEW THIS WHEN YOU BUILT THE PLACE DIDN'T YOU?
*4r
MR. ROSENBERG: BUT THE ORIGINAL MORTGAGE THAT WAS IN PLACE AT THE TIME I BUILT
IT , IS DIFFERENT THEN THE MORTGAGE THAT IS IN PLACE NOW. THIS WAS A CONDITION
OF THE MORTGAGE, WHICH AT THE TIME WAS FELT, TO BE A FAIRLY MINISTERIAL ACTION
ON THE PART TO SUBDIVIDE. AND BY SUBDIVIDING IT WOULD GIVE THE BASIS TO RELEASE
THE LIEN ON THE MORTGAGE. AND I COULD SUBMIT CONTRACTS AND DOCUMENTS TO SUBSTAN-
TIATE THAT. BUT I THOUGHT I REALLY WOULDN'T BURDEN THE BOARD WITH THAT.
MR. HIRKALA: IT'S NOT A CASE OF BURDEN, IT'S A CASE OF US HAVING A LEGAL REASON
TO GIVE YOU WHAT YOU ARE ASKING FOR. AND THE LEGALITY HAS TO ENTER INTO IT. IT'S
NOT A CASE OF SAYING I WOULD LIKE TO DO THIS BECAUSE I DIDN'T THINK OF IT YES-
TERDAY.
MR. ROSENBERG: I HAVE A ABSOLUTE LEGAL PROPERTY RIGHT TO OWN A PIECE OF PROPERTY
SEPARATE AND APART FROM A BUSINESS.
MR. HIRKALA: SURE YOU DO. BUT THE POINT IS HOW YOU ARRIVE AT THAT LEGAL PIECE OF
PROPERTY, SEPARATE FROM THE BUSINESS YOU ARE IN.
MR. ROSENBERG: VERY SIMPLY, I APPLY TO THE PLANNING BOARD OF THE TOWN OF WAP-
PINGER AND BECAUSE OF THE SITUATION THAT I AM NOT ON A PUBLIC ROAD AS PART OF
THE PROCEDURE, THEIR OPINION IS THAT I HAVE TO OBTAIN A VARIANCE. TO PERMIT A
HOUSE ON A SOMETHING OTHER THEN A PUBLIC ROAD.
MR. HIRKALA: I WOULD SUBMIT THAT IT'S NOT THE PLANNING BOARDS OPINION THAT
OUNTS HERE, THE ZONING ADMINISTRATOR'S OPINION IS WHAT GETS YOU HERE. NOT THE
LANNING BOARD, YOU APPLY TO HIM AND HE REJECTS THE APPLICATION. AND THAT'S WHAT
GETS YOU HERE. THE PLANNING BOARD REJECTING THE APPLICATION DOESN'T -GET YOU
HERE.
MR. ROSENBERG: MR. HIRKALA, I CAN NOT COME HERE ON MY OWN VOLITION.
MR. HIRKALA: I KNOW THAT, I WAS JUST TRYING TO POINT SOMETHING OUT TO YOU.
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MR. ROSENBERG: THIS WAS ON THE ADVISE OF THE TOWN ATTORNEY, AS THE PROPER
PROCEDURE TO FURTHER MY SUBDIVISION REQUEST. AND THE HARDSHIP IS THAT WITHOUT
THIS VARIANCE THEIR POSITION IS, THAT THEY ARE NOT IN A POSITION TO GRANT IT,
BECAUSE IT DOES NOT MEET THE REQUIREMENTS OF BEING ON A PUBLIC ROAD.
MR. CHAZEN: I BELIEVE WE GOT A VERY POSITIVE REFERRAL HERE FROM THE PLANNING
BOARD. I THINK THERE WAS A RESOLUTION AT THAT MEETING. MR. LEVENSON CAN YOU
CONFIRM THAT?
MR. LEVENSON: YOUR RECOMMENDATION TO BE REFERRED TO THE ZBA FOR ACTION ON 280A.
MR. HIRKALA: THE RECOMMENDATION IS FOR CONSIDERATION. IT IS NOT A RECOMMENDATION
TO GRANT IT.
MR. CHAZEN: SORRY.
'R. HIRKALA: THEY COULDN'T LEGALLY CONSIDER THIS ANYWAY, BECAUSE IT'S NOT ON A
SOWN ROAD. THAT'S THE QUESTION BEFORE US.
MR. ROSENBERG: THAT'S HOW WE GOT HERE.
MR. HIRKALA: I WOULD STILL LIKE TO HEAR MORE THAN THE FACT YOU NEED IT, BECAUSE
OF THE MORTGAGE. ANYBODY ELSE HAVE A QUESTION?
MR. LEHIGH: I FEEL BASICALLY THE SAME WAY, IF YOU COME UP WITH A COUPLE OF REA-
SONS, LEGITIMATE REASONS, STATE PLANNING, I WOULD CONSIDER THAT A LEGITIMATE REA
SON. BUT I WOULD LIKE TO SEE SOMETHING, YOU KNOW IN BLACK AND WHITE TO GUIDE
ME. MR. ROSENBERG: WELL LET ME GIVE YOU A HYPOTHETICAL. IF SOMETHING HAPPENED TO
MYSELF MY WIFE WHO LIVES IN MY RESIDENCE WOULD FIND HERSELF IN A VERY TENUOUS
POSITION. THE REASON BEING THE MATTER OF LAW, THE PARTNERSHIP OF WHICH I AM A
PART OF, WOULD BE OBLIGATED TO DISSOLVE. THAT WOULD REALLY LEAVE HER IN A RATHER
ENCUMBERED POSITION, WITH RESPECT TO HER BEING ABLE TO REMAIN IN THE HOUSE. AND
IT WAS ON THE BASIS OF THAT REASON AND THAT NEED THAT I HAVE GONE THROUGH THIS
ENTIRE PROCESS.
MR. HIRKALA: WHAT YOU ARE SAYING IS, THAT IF SOMETHING HAPPENED TO YOU, YOUR
WIFE COULD QUITE POSSIBLY LOSE THE HOUSE?
MR. ROSENBERG: THAT'S CORRECT.
MR. HIRKALA: I WOULD HAVE TO HEAR FROM OUR ATTORNEY FOR THAT PURPOSE, BECAUSE
YOU ARE NOT AN ATTORNEY. #1. I DON'T KNOW IF YOU UNDERSTAND THE RULES THAT THE
OARD HAS TO OPERATE. ANYTHING YOU PRESENT TO US YOU HAVE TO PROVE. IF IT'S
kfINANCIAL YOU HAVE TO PROVE IT, IF IT'S LEGAL YOU HAVE TO PROVE IT, OK. YOU GIVE
US THE DOCUMENTATION TO PROVE WHAT YOUR POSITION IS, TO JUSTIFY THE PRACTICAL
DIFFICULTY. THEN WE GO TO OUR ATTORNEY AND OUR ATTORNEY WILL REVIEW IT AND TELL
US IF IT IS RIGHT OR NOT, AND WE WILL TAKE HIS ADVISE AND GO FROM THERE.
MR. ROSENBERG: MR. HIRKALA, I SUBMIT THAT BASICALLY THE MERE REQUEST TO SEPARATE
cm
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in
MY PROPERTY OK, IS IN ITSELF AN INHERITED RIGHT, THAT I HAVE. AND I HAVE THE
RIGHT TO COME HERE, AND REQUEST THAT ABILITY. AND THAT IN ITSELF IS A PRIMA
FACIE
TO SUPPORTING MY APPLICATION.
MR. HIRKALA: THE EVIDENCE YOU ARE PRESENTING TO US HAS TO BE SUPPORTED BY
SOMETHING OTHER THAN YOURSELF. IN VIEW OF THIS BOARD, IN VIEW OF MYSELF AS THE
CHAIRMAN OF THIS BOARD. I WOULDN'T ACCEPT THE PREVIOUS APPLICANTS EVIDENCE,
UNLESS IT IS SUPPORTED SOMEWHERE ELSE. THAT'S WHY MR. STENGER WAS HERE IN THE
FIRST CASE. BECAUSE AS AN ATTORNEY TO PRESENT TO US AND OUR ATTORNEY WAS HERE
ALSO.
MR. ROSENBERG: SO IF I CAN PRODUCE TO YOUR SATISFACTION A COPY OF THE MORTGAGE
STATING THAT THE LIEN OF THE MORTGAGE WOULD BE RELEASED, ONCE THE PROPERTY WAS
SUBDIVIDED,
MR. HIRKALA: NO, NO, NO, YOUR PRACTICAL DIFFICULTY FROM WHAT I UNDERSTAND IS
%KR. BROOKER: CREATED BY YOURSELF.
MR. HIRKALA: IS CREATED BY YOURSELF, ASIDE FROM THAT, YOUR PRACTICAL DIFFICULTY
IS THE FACT THAT SHOULD SOMETHING HAPPEN TO YOU UNDER THE PRESENT CIRCUMSTANCES,
YOUR WIFE STANDS TO LOSE THE HOUSE. AS YOUR WIFE IS YOUR HEIR WOULD, HAS A
CHANCE OF LOSING THE HOUSE.
SOMETHING WAS SAID BY SOMEONE IN THE AUDIENCE I COULD NOT MAKE OUT.
MR. HIRKALA: PLEASE SIR, LETS WATCH THE COMMENTS. AS I UNDERSTAND IT THAT'S
WHAT YOU ARE TELLING US.
MR. ROSENBERG: NO, I AM SAYING TO YOU THAT AS THE OWNER OF A PIECE OF PROPERTY,
I HAVE THE RIGHT TO COME IN AND REQUEST AS A MATTER OF LAW, THE ABILITY TO SUB-
DIVIDE THAT INTO TWO (2) LEGAL PARCELS.
MR. HIRKALA: THAT'S RIGHT.
MR. ROSENBERG: THAT'S AN INTERN RIGHT I HAVE.
MR. HIRKALA: OPERABLE WORD LEGAL. SECTION 280A NEW YORK STATE LAW, YOU HAVE TO
HAVE IT ON A TOWN ROAD, IF YOU WANT TO SUBDIVIDE A PIECE OF PROPERTY OUT HERE ON
ROUTE 9D THAT'S FINE.
MR. ROSENBERG: THE NEED TO DO THAT IS I NEED TO OBTAIN A VARIANCE.
%%R. HIRKALA: THAT'S RIGHT.
MR. ROSENBERG: TO PERMIT THIS REQUEST ON A PRIVATE ROAD.
MR. HIRKALA: YES SIR.
MR. ROSENBERG: AND YOU ARE SAYING TO ME THAT DOESN'T CONSTITUTE
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MR. HIRKALA: NO, THE COUNTY LAW REQUIRES IT. YOU SAID THE NEXT STEP WAS TO
OBTAIN A VARIANCE. NOW YOU HAVE TO GO BEYOND THAT. WHAT DOES IT TAKE TO OBTAIN A
VARIANCE UNDER THE LAW. THE STATE OF NEW YORK AND STATE LAW, TOWN LAW AND CASE
LAW, AND YOU HAVEN'T IN MY VIEW, I AM ASKING YOU TO MEET THAT. I AM TRYING TO
GIVE YOU SOME GUIDE LINES AS HOW TO MEET THAT. YOU HAVE TO HAVE PRACTICAL DIFFI-
CULTY IN ORDER TO GAIN AN AREA VARIANCE.
MR. ROSENBERG: THE PRACTICAL DIFFICULTY IS THAT I AM IN A CATCH 22 SITUATION IN
THAT I CANNOT GET THE SUBDIVISION REQUEST APPROVED UNLESS I HAVE A VARIANCE.
MR. HIRKALA: THAT'S RIGHT, AND YOU HAVE TO PROVE TO US THAT YOU HAVE THE RIGHT
TO THE VARIANCE. JUST THE FACT THAT YOU WANT A SUBDIVISION DOESN'T JUSTIFY THE
VARIANCE.
MR. CHAZEN: MR. CHAIRMAN, CAN YOU HELP US BY TELLING US WHAT TYPE OF EVIDENCE
YOU WOULD LIKE TO HAVE US PROVE.
-R. HIRKALA: I ASSUME MR. ROSENBERG, KNOWS A LOT ABOUT THE LAW, AND I WOULD
%WMAGINE HE WOULD HAVE CHECKED THIS OUT BEFORE YOU CAME HERE. YOU HAVE TO HAVE A
PRACTICAL DIFFICULTY IN ORDER TO OBTAIN AN AREA VARIANCE.
MR. CHAZEN: WE UNDERSTAND THAT,
MR. HIRKALA: UNDER LAW, THERE IS PLENTY OF DOCUMENTATION FOR IT. YOU HAVE TO
HAVE SOME PROOF OF THE PRACTICAL DIFFICULTY. YOU CAN'T JUST COME AND SAY I'VE
GOT A PRACTICAL DIFFICULTY, YOU HAVE TO PROVE IT.
MR. CHAZEN: SO YOU WOULD LIKE SOMETHING MORE THEN MR. ROSENBERG'S TESTIMONY AS
TO ASSURE TO. I'M SURE WE CAN BRING TO YOU
MR. HIRKALA: WE HAVE TO HAVE DOCUMENTATION.
MR. CHAZEN: FINE, WE WILL BE HAPPY TO BRING THE DOCUMENTATION, RELATIVE TO THE
MORTGAGE THAT EXPLAINS THIS.
MR. HIRKALA: WELL I'M NOT SURE, I'M NOT GOING TO AT THIS POINT SAY, IF YOU BRING
THIS DOCUMENTATION RELATIVE TO THE MORTGAGE IF YOU WILL GET A VARIANCE.
MR. CHAZEN: I UNDERSTAND THAT. WHAT WOULD YOU LIKE US TO BRING TO YOU TO SHOW
PRACTICAL DIFFICULTY?
MR. HIRKALA: I SUGGEST YOU ASK YOUR ATTORNEY NOT ME.
I'R. BROOKER: LET ME GET SOMETHING IN HERE. IT SEEMS TO ME THAT THE PRACTICAL
-DIFFICULTY WAS CREATED BY YOURSELF. YOU CREATED THE DIFFICULTY BY GETTING A
SECOND MORTGAGE ON YOUR HOUSE. YOU CREATED THE PROBLEM THERE, YOU WANT US TO GET
YOU OUT OF IT. IS THAT TRUE OR NOT?
MR. ROSENBERG: NO, I DON'T HAVE A SECOND MORTGAGE.
MR. BROOKER: WAS IT A MORTGAGE YOU TOOK OUT A SECOND TIME? YOU JUST STATED
09
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BEFORE IT WAS A SECOND MORTGAGE.
MR. ROSENBERG: NO,
MR. LEHIGH: NO, HE SAID REMORTGAGED.
In
MR. BROOKER: I MEAN REMORTGAGE OVER AGAIN. YOU KNEW AT THE TIME YOU WERE GOING
TO HAVE THIS PROBLEM, WHY WASN'T SOMETHING DONE AT THE TIME YOU GOT INTO THIS
PROBLEM? YOU CREATED THIS DIFFICULTY YOURSELF.
MR. ROSENBERG: I TAKE EXCEPTION TO THE CHARACTERIZATION OF CREATING THE PROBLEM
MYSELF. I BELIEVE THAT THE STATED PURPOSES THAT I SET FORTH TONIGHT ARE LEGAL,
THEY ARE FACTUAL. AND IF IN FACT YOU DON'T WANT TO ACCEPT THEM FROM ME, I DON'T
REALLY KNOW OTHER THEN HAVING MY ATTORNEY OR MY ACCOUNTANT RENDER AN OPINION AS
TO THE VALIDITY OF WHAT I AM PRESENTING HERE TONIGHT. THAT IS THE CRUX OF IT.
THAT IS THE PURPOSE OF WHAT THIS APPLICATION IS ABOUT.
'R. HIRKALA: THE PURPOSE OF THE APPLICATION IS ONE THING. THE JUSTIFICATION FOR
'*T IS SOMETHING AGAIN. THE JUSTIFICATION IS WELL ESTABLISHED IN CASE LAW. THE
JUSTIFICATION IS WELL ESTABLISHED IN TOWN LAW. AND WE HAVE TO SEE THE JUSTIFI-
CATION.
MR. ROSENBERG: THE JUSTIFICATION IS THAT I HAVE A PARCEL OF PROPERTY, THAT
ABSENT THE GRANTING OF THIS VARIANCE, I HAVE NO EFFECTIVE WAY OF SEPARATING THAT
PARCEL OF PROPERTY WITH THE SUBSTANTIAL IMPROVEMENTS ON IT FROM OTHER PROPER-
TIES, OF WHICH I HAVE A PARTNERSHIP INTEREST IN. AND THAT CONSTITUTES A VERY
REAL AND SUBSTANTIAL, BECAUSE THE VALUE OF THE PROPERTY IS FAIRLY SUBSTANTIAL.
THIS IS NOT
MR. HIRKALA: THE POINT, AND I AM NOT GOING TO STAND HERE AND ARGUE WITH YOU. THE
FACT IS THAT UNLESS THE BOARD HAS ANY MORE QUESTIONS FOR YOU, WE COULD ADJOURN
AND HAVE YOU CONSULT AND COME UP WITH THE FACTS.
MR. LEHIGH: I WOULD MOVE THAT WE WOULD GRANT HIM A 30 DAY EXTENSION.
MR. HIRKALA: THAT'S NOT THE CASE WE COULD JUST ADJOURN THE PUBLIC HEARING.
MR. LEHIGH: ADJOURN THE PUBLIC HEARING.
MR. HIRKALA: BUT THAT'S HIS CALL, WE COULD JUST VOTE ON IT TONIGHT, AND TAKE HIS
CHANCES IF HE GETS IT OR DOESN'T GET IT.
MR. CHAZEN: MR. CHAIRMAN, WE WOULD REALLY APPRECIATE THE ADJOURNMENT. AND WE
MILL DO OUR BEST TO PROVIDE MORE HARD EVIDENCE.
MR. HIRKALA: JUSTIFICATION FOR PRACTICAL DIFFICULTY THAT MIGHT EXIST TO SUPPORT
THE VARIANCE. JUST A MOMENT SOMEONE ELSE WANTS TO SAY SOMETHING. MR. INCORONATO.
MR. INCORONATO: YES, I JUST WANT TO SUBMIT THE HARDSHIP IN THE CONTEXT OF THE
ZBA REGULATIONS, I BELIEVE, TALKS OF ENGINEERING HARDSHIPS NOT PHYSICAL, FINAN-
CIAL
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In
MR. HIRKALA: YOU ARE WRONG, PRACTICAL DIFFICULTY IS THE FIRST CASE NOT HARD-
SHIP. PRACTICAL DIFFICULTY IS THE FIRST CASE, HARDSHIP MIGHT ENTER IN TO IT
LATER ON. AS FAR AS PRACTICAL DIFFICULTY IS CONCERNED, THE POINT BEING THAT YOU
ARE THINKING OF A USE VARIANCE NOT AN AREA VARIANCE. THAT'S WHAT YOU ARE LOOKING
AT. A USE VARIANCE IS HARDSHIP, IT'S FIRST AND FOREMOST. BUT IT STILL ENTERS
INTO A FINANCIAL HARDSHIP IT'S STILL A PART 0 IT.
MR. INCORONATO: IT'S A QUALIFIER, UNUSUAL
MR. HIRKALA: UNUSUAL CONDITIONS.
MR. INCORONATO: THEN THIS MIGHT NOT BE UNUSUAL.
MR. HIRKALA: WE HAVE TO HEAR SOME REASON FOR THE UNUSUAL CONDITION, WE HAVE TO
SEE THE PROOF OF IT.
MR. CHAZEN: MR. CHAIRMAN, WE UNDERSTAND WHAT YOU ARE SAYING AND WE WOULD LIKE
THE 30 DAYS.
%WR. LEHIGH: MADE A MOTION TO ADJOURN THE PUBLIC HEARING TO THE NEXT AGENDA.
MR. BROOKER: SECONDED.
VOTE: MR. LEHIGH: AYE
MR. HIRKALA: AYE
MOTION CARRIED.
MR. BROOKER: AYE
MRS. ROE: AYE
MR. LEHIGH: MADE A MOTION TO ADJOURN THE MEETING.
MR. BROOKER: SECONDED.
VOTE: MR. LEHIGH: AYE MR. BROOKER: AYE
MR. HIRKALA: AYE MRS. ROE: AYE
MEETING WAS ADJOURNED AT 9:45 PM.
RESPECTFULLY YOURS
GAY ANN HARDISTY / ZONING AND PLANNING
BOARDS SECRETARY