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2008-07-22 Town of Wappinger Zoning Board of Appeals Page ] MINUTES Minutes of July 22,2008 MINUTES APPROVED ~S 12 2008 Town of Wappinger Zoning Board of Appeals July 22, 2008 Town Hall 20 Middlebush Road Wappinger Falls, NY Summarized Minutes Members: Mr. Prager, Mr. DellaCorte, Mr. Casella, Chairman V ice-Chairman Member Member Absent: Ms. McEvoy-Riley, Member Mr. McVeigh, Member Others Present: Mr. Horan, Mrs. Lukianoff, Mrs. Roberti, Town Attorney Zoning Administrator Secretary SUMMARY Adjourned Public Hearings: David Estremera -APH to July 22, 2008. Discussions: Peter & Donna Colucci -Closed PH, Decision on July 22, 2008. Huong Bocchino Town of Wappinger Zoning Board of Appeals '-" Mr. DellaCorte: Ms. McEvoy-Riley: Vote: Mr. DellaCorte: Ms. McEvoy-Riley: Vote: Mr. DellaCorte: Ms. McEvoy-Riley: Vote: Mr. DellaCorte: Ms. McEvoy-Riley: Vote: Mr. DellaCorte: Ms. McEvoy-Riley: Vote: Mr. DellaCorte: Ms. McEvoy-Riley: Vote: "-' Page 2 Minutes of July 22, 2008 Motion to approve the minutes for April 22, 2008. Second the motion. All present voted aye. Motion to approve the minutes for May 13, 2008. Second the motion. All present voted aye. Motion to approve the minutes for May 28, 2008. Second the motion. All present voted aye. Motion to approve the minutes for June 10, 2008. Second the motion. All present voted aye. Motion to approve the minutes for June 24, 2008. Second the motion. All present voted aye. Motion to approve the minutes for July 8, 2008. Second the motion. All present voted aye. ADDeal No. 08-7369- Amended David & Diana Estremera- Seeking area variances of Section 240-37 of District Regulations in an R-40/80 Zoning District. -Where a side yard setback of 40 feet is required, the applicant is DroDosine: a side yard setback of 26.7 feet. to allow for a 22'X 26' Elliptical in-ground pool, thus reQuestine: a variance of 13.3 feet. -Where a side yard setback of 40 feet is required, the applicant is DroDosine: a side yard setback of 28.6 feet. to allow for a 13'X 15' CabanaIPool House, thus reQuestine: a variance of 11.4 feet. The property is located at 67 Red Hawk Hollow Road and is identified as Tax Grid No. 6359- 02-882592 in the Town of Wappinger. WAITING FOR DCHD APPROVAL AND MAP TO SHOW WASTE LINES Ms. McEvoy-Riley: Mr. DellaCorte: Vote: Mr. Prager: Mrs. Roberti: ~ Motion to open the adjourned public hearing. Second the motion All present voted aye. I understand that Mr. Estremera if finally getting somewhere with the DCHD, correct? Yes. Mr. Estremera has informed this office that he is working with them now and hopes to have he approval in the next few weeks. Town of Wappinger Zoning Board of Appeals Page 3 Minutes of July 22,2008 \r. Mr. McVeigh: Mr. DellaCorte: Vote: Motion to adjourn the public hearing to August 12, 2008. Second the motion. All present voted aye. ADoeal No. 08-7376 Ruone Bocchino - Seeking a Use Variance of Article IV, Section 240-16 and Section 240-37 in the District Zoning Regulations for an R-40 Zoning District. Applicant is seeking a Use Variance for the use as a two family residence in a single family residential zoning district. The property is located 179 Osborne Rill Road and is identified as Tax Grid No. 6156- 02-501589 in the Town of Wappinger. Present: Huong (Tara) Bocchino Lynnette Smith - Applicant - Daughter in law Mrs. Smith: I'm here to help Huong because of the language difficulty. She bought this house in 1995 for $95,000.00. It was built in 1930 and is 1,852 sf and was bought at what she believed to be a two-family residence. It was rented out and it was brought to her attention that the town does not recognize this as a two-family as of last year. There is a 2-family on one side of her and a 3-family on the other side. Mr. Prager: I would like to see the deed to this and contract from the purchase. ~ Mrs. Smith: This has two kitchens and the town wants one kitchen to be removed. Brought up the assessor's records to the board. Mrs. Lukianoff: This was listed as a one family until 2000 when the assessor went out there and changed the listing to a two-family for tax purposes. Mr. Prager: When you bought it you should have received a contract from the attorney and you can get a copy of the deed from the County Clerk on Market Street. Ms. McEvoy-Riley: Who was your attorney? Mrs. Bocchino: I'm not sure anymore. Mr. Prager: Ask the County for any records that they might have. Mrs. Smith: Do we get the copies and just come back? Mr. Prager: Yes. Mrs. Bocchino: I was told that this was grandfathered. Mrs. Smith: What is the old age home zoned as? Mrs. Lukianoff: It is a governmental agency. "" Town of Wappinger Zoning Board of Appeals Page 4 Minutes of July 22, 2008 Mrs. Smith: Ok we will research this. '-' Mr. Prager: Also get proof that the houses on both sides are in fact legal two families. Mrs. Bocchino: Thank you. Appeal No. 07-7356 Peter & Donna Colucci - Seeking a Use Variance of Article N, Section 240-16 and Section 240-37 in the District Zoning Regulations for an R-40 Zoning District. Applicant is seeking a Use Variance to use the existing property and the structures thereon as multi-family dwelling units in a single family residential zoning district. The property is on 12.431 acres and is located at 1471 Route 376 and is identified as Tax Grid No. 6259-04- 762010 in the Town of Wappinger. (Mole) Present: Jennifer Herrodes - Attorney Peter Colucci - Applicant Mr. Prager: I will read our decision into the record. '-" TOWN OF WAPPINGER ZONING BOARD OF APPEALS APPLICATION FOR A USE VARIANCE FINDINGS & DECISION Appeal No. Application Date: Applicant Premises Located at: Tax Grid No.: Zoning District(s): Record Owner of Property: Variance of Code Sections: 07 -7356 September 10, 2007 Peter and Donna Colucci 1471 Route 376 6259-04-762010 R-40 Peter and Donna Colucci ~ 240-37 (District Regulations) ~ Evidence Presented 1) Affidavit of Donna Colucci dated September 10, 2007; 2) Deed to the premises dated October 18,2004; 3) Note and Mortgage October 18,2004; 4) Stipulation of Settlement between Longhitano and the Town of Wappinger 5) Appearance Ticket 00831 dated September 12, 2006 6) Supporting Deposition of George A. Kolb, Jr. dated September 11, 2006 '-' Town of Wappinger Zoning Board of Appeals 7) Information dated September 12, 2006 8) Profit and Loss Statement for 2006 & 2007 9) Tax Returns 10) Leases 11) Report of Bailey Browne CPA & Associates dated February 1, 2008 12) Report from Dutchess County Planning pursuant to GML ~239-m deciding issue is one of local concern 13) Short Form EAF 14) Contract of Sale 15) Letter from Premier Abstract, Ltd dated October 1, 2004. Page 5 Minutes of July 22,2008 Description of the Premises & Proposed Variance The premises that is the subject of this application is a 12.11 Acre Parcel located at 1471 Route 376 in an R-40 District. Peter and Donna Colucci received title to the property by deed from Signorino Longhitano and Diana Longhitano dated October 18, 2004. There are three dwellings located on the property and one garage. The dwellings are known as the main house, the blue house and the tan house. The main house is the subject of this application. The premises is located in a single family R-40 district. The applicant's predecessor in title Signorino Longhitano and Diana Longhitano entered into a Stipulation of Settlement with the Town of Wappinger that authorized the three buildings on the property to be used as a two family dwelling, a two family dwelling and a one family dwelling. The applicant seeks a variance to use the main '--' house, which by the stipulation is a one family dwelling as a four family dwelling. The blue house and the tan house shall remain as two family dwellings. Public Hearine: A public hearing on the application was held on June 24, 2008 and July 8, 2008. Peter Colucci and his attorney Anthony Mole, Esq. spoke in support of the application and responded to questions of the Board. At the June 24, 2008 public hearing ten (10) neighbors appeared and all spoke in opposition to the application. The neighbors stated that the premises was not in conformance with the single family neighborhood and allowing additional dwelling units would exacerbate a bad situation. Some neighbors acknowledged that adverse impacts from the premises had decreased since the Colucci's took title to the property. One of the neighbors commented at the June 24, 2008 public hearing, that the neighbors should not suffer because the applicant made a bad real estate investment. Review of Use Variance The determination of the ZBA in granting a use variance is guided by Town Law ~267-b(2)(b) which states: '-" Town of Wappinger Zoning Board of Appeals Page 6 Minutes of July 22,2008 '-" (b) No such use variance shall be granted by a board of appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship the applicant shall demonstrate to the board of appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located, (1) the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence; (2) that the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood; (3) that the requested use variance, if granted, will not alter the essential character of the neighborhood; and (4) that the alleged hardship has not been self-created. The ZBA determines that the evidence presented result 10 the following determinations regarding the above noted factors. Reasonable Return The Applicant has provided financial information that indicates that it is not '-'" capable of yielding a reasonable rate of return on the property. The applicant indicates that unless the main house is used as a four family dwelling it will lose money on the property. The applicant purchased the property for 1.5 million dollars. For 2008 the property is assessed at 1.2 million dollars. Based on the evidence submitted, it appears that the applicant will in fact lose money if the premises are used as required by the Stipulation, that is five residential units. Hardship to the Property is UniQue The surrounding area is predominantly single family residential which is allowed in the District. The Applicant's property is unique when compared to the properties in the neighborhood because there are three dwellings located on the premises. Most other properties in the area contain only one dwelling. Chanee in Character of the Neiehborhood .~ Granting of the variance will create a change in the character of the neighborhood. The neighborhood consists of single family dwellings, not multi-family units. At the public hearing the neighbors all testified that the existing use of the property was out of character with its surroundings and generally disturbed the peace of a single family residential neighborhood. The stipulation in place allows for five residential units where one is allow by the code. An addition of three more dwelling units would only exacerbate the existing situation. Town of Wappinger Zoning Board of Appeals Hardship Self-Created Page 7 Minutes of July 22, 2008 \... Paragraph 13 of the Contract of Sale for the property to the Coluccis indicates they were buying five residential rental units; this is consistent with the Stipulation. Schedule B to the Contract of Sale shows a Rent Roll as of July 1, 2004 for 5 units. The total rent roll shown was $3,376.25 with one unit vacant and one unit owned by the Longhitanos. The applicant has provided a letter from Premier Abstract dated October 1, 2004 which has attached a letter from Mark J. Liebermann-Fire Inspector dated September 27, 2004 which states: "New owner's shall be aware of the Court Stipulation of 1995 issued by Judge Wolfson of the Town of Wappinger Justice Court regarding the number of residential units permitted at the aforesaid site, per attached site map." The attached map shows Buildings 1,2,3 and Barn. The map shows the main house as "1 Family." The applicant has testified that it did not know of the Stipulation and that there were eight rental units on the site when they purchased the property. The contract of sale and the letter from the Fire Inspector put the Coluccis on notice that they were only buying five legal rental units. They ignored those documents at their own peril and ~ proceeded to buy the property with unrealistic assumptions. Based on those facts, the hardship was self created. Decision Applying the standards of Town Law ~267-b(2)(b), a use variance cannot be granted because the requested variance will alter the essential character of the single family residential neighborhood and the alleged hardship has been self created. Application for Variance DENIED. The foregoing is the decision of the ZBA. Roll Call: Mr. McVeigh, Denied. Ms. McEvoy-Riley, Denied. Mr. DellaCorte, Denied. Mr. Prager, Denied. .~. Town of Wappinger Zoning Board of Appeals Page 8 Minutes of July 22,2008 '-' Ms. McEvoy-Riley: Mr. DellaCorte: Vote: Motion to adjourn. Second the motion. All present voted aye. Meeting ended at 8:15 PM 42;:;M:#5" '--Barbara ~rti~ecretary Zoning Board of Appeals '-" ~