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2008-05-13 Town of Wappinger Zoning Board of Appeals MINUTES Town of Wappinger Zoning Board of Appeals May 13, 2008 Summarized Minutes Members: Mr. DellaCorte, Mr. Casella, Ms. McEvoy-Riley, Mr. Prager, Member Absent: Mr. McVeigh, Others Present: Mr. Horan, Mrs. Lukianoff, Mrs. Roberti, Page 1 Minutes of May ]3, 2008 MINUTES APPROVED JUL 22 2008 Town Hall 20 Middlebush Road Wappinger Falls, NY V ice-Chairman Member Member Chairman Member Town Attorney Zoning Administrator Secretary SUMMARY Public Hearin2s: David & Diana Estremera Discussions: Marilyn Turner Shultz Michael Matuskovic Brian & Irene Moody Peter & Donna Colucci Stonegate/Berta -APH to June 10,2008. -Public Hearing on May 28, 2008. -Public Hearing on May 28, 2008. -Use Variance Granted. -Public Hearing on June 24, 2008. -Use Variance and Interpretation denied. Town of Wappinger Zoning Board of Appeals ~ Mr. DellaCorte: Ms. McEvoy-Riley: Vote: Page 2 Minutes of May 13, 2008 Motion to approve the site minutes for April 25, 2008. Second the motion. All present voted aye. Aooeal 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 reauired, the applicant is orooosin2 a side yard setback of 26.7 feet. to allow for a 22'X 26' Elliptical in-ground pool, thus reauestin2 a variance of 13.3 feet. -Where a side yard setback of 40 feet is reauired, the applicant is orooosin2 a side yard setback of 28.6 feet. to allow for a 13'X 15' CabanaIPool House, thus reauestin2 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. Mr. Prager: Mrs. Roberti: ~ Mr. Casella; Mr. DellaCorte: Vote: Mr. Estremera: Mr. Prager: Mr. Estremera: Mr. Prager: Mrs. Estremera: Mr. Prager: Mrs. Estremera: ~ Are the mailings in order? Yes they are. Motion to open the public hearing. Second the motion All present voted aye. Weare looking for variances for our pool and cabana. We had a problem with the property line and where it actually was. At the time the CO's were issued we gave the building department the wrong information. Once it was discovered the permits were rescinded. Was the CO only for the pool? Correct. When we went for the CO on the cabana our neighbor came over and disputed the property line. What caused that? When we built our home we went by the plot plan. At this time the Estremera's brought the plans up to the dais for discussion. Looking at all four maps, the numbers are all the same. Our builders staked this out and we were wrong. Once John pointed this out we came to you to try and legalize this. We have a great deal of money invested into this yard. Town of Wappinger Zoning Board of Appeals Page 3 Minutes of May 13, 2008 ~ Mr. Prager: On the site plan that you gave me, not the newest one, the one dated June 15, 2000 done by Oswald, there are a couple of numbers by the corner of your house and it says a proposed wood deck. Is that there? Mr. Estremera: We don't have a wood deck. That was one of the problems that we had. We told the town that we changed it to a stone patio so it wouldn't hold us up with a variance. Mr. Prager: Fine, then what's the exact measurement from the corner of your house to the property line? Mr. Estremera: I would imagine its 36 feet then. Mrs. Lukianoff: There is a variance for the corner of the house because it did not meet the 40 foot setback that is required by the zone. I believe it is 36.2 feet. Mr. Prager: Good then that is the exact number. Mrs. Estremera: We are also in contact with the DCHD on the seasonal bathroom. They want engineered specs and we are working on that. Mr. Prager: We should probably adjourn this until you get approval from the HD. Is there anyone in the audience with a comment or question? ~ Mr. Benson: John Benson, 61 Red Hawk Hollow Road. I sent the board our feelings regarding this and outlined them for you. I originally signed for the variance in 2000. I felt there should have been a larger barrier to me. I would like to see a barrier such as bushes for sound control. They have put up a plastic fence which really doesn't help the sound. Ms. McEvoy-Riley: If they put trees up, which side? Mr. Benson: Originally they put two trees on my side. They cleared my side by mistake, 15 feet by 120 feet of my property. Ms. McEvoy-Riley: Would you be happy with more trees? Mr. Benson: Well yeah but we need some top soil like a berm. I think I spelled it out pretty clearly in the letter. I have been in touch with a landscape architect to look at the problem and he gave me these ideas to solve the noise problem. Mr. DellaCorte: You want this on your property? Mr. Benson: Yes. Mr. Prager: Did they remove trees or just brush? '-" Town of Wappinger Zoning Board of Appeals Page 4 Minutes of May 13, 2008 "-" Mr. Benson: Mostly brush. I asked him when they first moved in not to clear that because it was the only buffer we had. Mr. Prager: You also had an issue with the soil line and it looks like they are checking with the DCHD on that. Mr. Benson: I have no problem with that if the HD signs off on it. Mr. Prager: Mr. Estremera, would you be willing to put some grass or trees or plantings in there? Mrs. Estremera: Actually there is a letter I sent in retort to Mr. Benson's second letter. We did not do this on purpose and $6,000.00 in landscaping seems excessive. Mr. Prager: Why don't the three of you sit down and try to work this out while we wait for the DCHD. We'll adjourn this and you can let us know when the HD comes in. Mr. Horan: With the HD issues that have been raised, would you show the waste lines and submit the plans to us that you have submitted to the HD. Mr. Prager: Mr. DellaCorte: Vote: Motion to adjourn this June 10, 2008. Second the motion All present voted aye. '-' Appeal No. 08-7370 Marilvnn Turner-ShuItz- Seeking area variances of Section 240-37 of District Regulations in an R-20 Zoning District. -Where a side yard setback of 20 feet is reauired, the applicant is proposiDll a side yard setback of 3 feet. to allow for a 2-car detached 24' X 26' garage with electric, thus reauestiDl! a variance of 17 feet. The property is located at 92 All Aneels Hill Road and is identified as Tax Grid No. 6258-01- 496666 in the Town of Wappinger. Mr. Prager: You were here at the last meeting and we needed the survey map. Mr. Casella: So that it is on the record, I know Marilynn but that will have no bearing on my decision. Mr. Prager: Tell us where exactly on the map this will be. Mrs. Shultz went up to the dais to explain to the board where the proposed driveway would go. Mr. Prager: Can you put this closer to the house? Mrs. Shultz: Closer to the house would make this harder to back out. ~ Mr. Prager: Can you move the driveway? Town of Wappinger Zoning Board of Appeals Page 5 Minutes of May 13, 2008 \.., Mrs. Shultz: No. Mr. Shultz: The County has raised the road a few times on us. Mr. Horan: They would also need a curb cut permit from the DPW. Mr. Prager: We will do a site visit out there. What is the garage for now? Mrs. Shultz: A wood shop. Mr. Prager: We'll do the site visit on May 17,2008 and your public hearing on May 28th, 2008. Mark out the proposed garage for us and the property line. Mrs. Shultz: Ok and the fence that is there is the property line. Mr. Horan: Send this to County Planning also. Mrs. Shultz: Thank you. \... Anneal No. 08-7371 Michael & Maryann Matuskovic- Seeking area variances of Section 240-37 of District Regulations in an R-40 Zoning District. -Where a side yard setback of 25 feet is required, the applicant is nronosin!! a side yard setback of 19 feet. to allow for a 24' X 15' above ground pool, thus requestin!! a variance of 6 feet. The property is located at 83 Smith Crossin!! Road and is identified as Tax Grid No. 6259-02- 976692 in the Town of Wappinger. Mr. Matuskovic: I came before you for a variance on my deck about four years ago and now we would like to install a pool against the deck. Mr. Prager: So you need a variance for a pool that will be against the deck that also received a variance? Mr. Matuskovic: Yes. Mrs. Lukianoff: Remember there are security requirements for pools so clear that with the building department. Mr. Prager: We will set your site visit for May 17th and your public hearing for May 28th. Make sure you mark everything out for us. Mr. Matuskovic: Thank you. ~ Town of Wappinger Zoning Board of Appeals Page 6 Minutes of May 13, 2008 ~ ADoeal No. 07-7340 - To vote on aDDlication. Brian & Irene Moodv - Seeking a Use Variance of Article IV, Section 240-16 and Section 240- 37 in the District Zoning Regulations for an R-40/80 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 29 Middlebush Road and is identified as Tax Grid No. 6157-01-394824 in the Town of Wappinger. (Sarcone) Present: John Sarcone - Attorney Mr. Prager: We are here tonight for a vote on the applicants Use Variance. Mr. Horan: We have received the requesting EAF, short form and find it to be appropriate. We also received a response from the DC Planning Department and they find this to be a matter of local concern. The board is now free to declare a neg. dec. if so inclined. Ms. McEvoy-Riley: Motion to declare a neg. dec. Mr. DellaCorte: Second the motion V ote: All present voted aye. Mr. Prager: I will now read into the record our decision: \.... TOWN OF WAPPINGER ZONING BOARD OF APPEALS Appeal No. Application Date: Applicant Premises Located at: Tax Grid No.: Zoning District(s): Record Owner of Property: Variance of Code Sections: APPLICATION FOR A USE VARIANCE FINDINGS & DECISION 07 -07340 March 8, 2007 Brian & Irene Moody 29 Middlebush Road 6157 -01-394824-0000 R-201R-40 Brian & Irene Moody 9 240-37 (District Regulations) Description of the Premises & Proposed Variance '-" The premises that is the subject of this application is a mixed use property located at 29 Middlebush Road in an R/20-R/40 District. The principal structure on the premises is a two- family dwelling and an accessory garage is located on the property. The Records of the Tax Assessor indicate that the premises were built in 1910. The premises are shown as Lot 2 on Filed Map No. 4389 which was filed in the office of the Dutchess County Clerk on June 4, 1974. Evidence has been presented that mixed residential/commercial use has taken place at the premises since at least 1960. The commercial uses were taxi service, day care center and now a Town of Wappinger Zoning Board of Appeals Page 7 Minutes of May 13, 2008 \. communications business. The applicant seeks a use variance to allow the principal use of the premises as a two-family dwelling with an accessory garage in a district which allows only single-family dwellings. Evidence Presented Annexed to its application, the Applicant has submitted the following: 1) An appraisal of the property dated March 6, 2007, which shows values as a single- family, two-family and mixed use building; 2) An estimate of $58,200 to convert the premises to a Single Family Dwelling; 3) Statements from residents; 4) Report of Bailey Browne CPA & Associates dated February 5, 2008 5) Report from Dutchess County Planning pursuant to GML ~239-rn deciding issue is one of local concern 6) Short Form EAF. Public Hearln!! A public hearing on the application was held on April 25, 2008. Witnesses testified on behalf of and in qualified opposition to the Application. 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: (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 in the following determinations regarding the above noted factors. Reasonable Return ~ Town of Wappinger Zoning Board of Appeals Page 8 Minutes of May 13, 2008 '-' The Applicant has provided ample financial evidence to support its position including current leases, real estate appraisal, dated March 6, 2007, copies of Federal Income Tax Returns for 2006, 2005, 2004, 2003, 2002, 2001 and 2000 and the terms and conditions of the Applicant's mortgage on the property. The Applicant purchased the property in 1991 and has a mortgage on the property. The applicant has submitted an estimate which is credible which indicates that the costs of converting the existing two-family dwelling to a single-family dwelling would cost approximately $58,000.00. Conversion is necessary to avoid future zoning violations. This cost would not be recouped upon a subsequent sale of the property as a single- family dwelling. The appraisal prepared by Valuation Consultants, Inc. indicates that as of March 6, 2007, the value of the property as a single family dwelling is $290,000. Since that date, real estate values in Dutchess County have declined 10% or more. The appraisal indicates the property has the greatest resale value when it is a mixed use. The report of Bailey Browne CPA & Associates dated February 5 2008 indicates that a continued mixed use of the property results in a negative rate of return. The allowed uses of the property are as an allowed single-family dwelling with accessory garage or a continued existing non-conforming mixed use. Neither of these uses generates a reasonable return for the applicant so this factor is met. Hardship to the Property is UniQue \..- The property is an existing non-conforming mixed use. The surrounding area is predominantly single family residential or public use which is allowed in the District. The Applicant's property is unique when compared to the conforming properties in the neighborhood. Chanee in Character of the Neiehborhood Granting of the variance to allow a two-family dwelling will bring the property more into conformity with the character of the surrounding neighborhood. Granting of the variance will eliminate the commercial use on the property. Hardship Self-Created The hardship has not been self-created because the existing uses predate the Zoning Ordinance. Decision The applicant has proven unnecessary hardship through the application of four tests required by the state statues. In finding such hardship, the ZBA grants a variance to allow use of the property as a two-family dwelling with an accessory garage, which is the minimum variance that should be granted in order to preserve and protect the character of the neighborhood and the health, safety and welfare of the community. ~ Conditions Town of Wappinger Zoning Board of Appeals Page 9 Minutes of May 13, 2008 '-' The ZBA finds that the following conditions are necessary in order to minimize adverse impacts upon the neighborhood or community, for the reasons following: No accessory home occupation shall be allowed on the premises where clients can come to the premises. The accessory garage may not be used for any commercial purposes. The existing commercial use of the property shall be terminated within 7 business days of service of this decision upon the applicant. The granting of this use variance shall operate as a termination of the existing non- conforming mixed use of the property. The foregoing is the decision of the ZBA. Ms. McEvoy-Riley: Mr. Casella: Roll Call: Motion to approve the Use Variance. Second the motion Mr. DellaCorte: Mr. Casella: Ms. McEvoy-Riley: Mr. Prager: Aye. Aye. Aye. Aye. Mr. Sarcone: Thank you. \.... ADDeal 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: Peter Colucci - Applicant Jennifer Herodes - Attorney Mr. Horan: This application was sent to DC Planning and was also deemed a matter of local concern. Ms. Herodes: I am here appearing for Anthony Mole'. The accountants report came out in February and Mrs. Colucci felt it was done in error because it factored in all four apartments. We sent a letter to the ZBA in February and Mrs. Colucci came in and spoke with Tatiana regarding this. We came back in March and explained this again and the report had not been received as of yet. Mr. Horan: Apparently there had been a miscommunication at that point. We were under the assumption that you were going to supply additional information to the accountant. Frankly after reviewing the report from the accountants, ~ Town of Wappinger Zoning Board of Appeals Page 10 Minutes of May 13, 2008 '-" I agree with you at least conceptually that this was taken improperly. But we do have to look at reasonable return for all the potential uses for the property including the use that is allowed. I don't see a determination of the economic use of the property as a one family. Ms. Herodes: Right, that is our point that the report doesn't include us using this as a one family. Whatever the accountant needs we can submit. Mr. Horan: In general we have issues with the accountants to be honest. I don't think we will put a lot of weight into this report. Your client will be better served with his own accountants report. Ms. McEvoy-Riley: You said the past owner lived there and the three other apartments were vacant, correct? Mr. Colucci: Two were rented, one was empty and there was a caretaker. Ms. Herodes: When my client bought this he thought it was two 2-families and one 4- family. We then came to the understanding that the 4 family was just a 1 family. Ms. McEvoy-Riley: Read from the previous minutes where Mr. Colucci stated that only the owner lived there and the other three were vacant. Mr. Casella: So the assumption at the time of sale was that all four could be rented? '-" Mr. Colucci: Yes and also that there were 4 lots that could be subdivided and sold. Ms. Herodes: So we should have an accountants report and an appraisal? Mr. Horan: Yes. Ms. McEvoy-Riley: We have tried to set policy for a lot of Use Variances that have come before us. Mr. Prager: We will set your public hearing for June 24,2008. Mr. Colucci: Thank you. Appeal No. 08-7365 Stonee:ate I Berta - Seeking a Use Variance of Article IV, Section 240-16 and Section 240-37 in the District Zoning Regulations for an HD & R-20 Zoning District. Applicant is seeking a Use Variance to allow the expansion of their existing legal non- conforming use, boarding house with a caretaker apartment, a use not permitted in a single family residential zoning district. The property is located Old Post Road and is identified as Tax Grid No. 6157-02-641504 in the Town of Wappinger. (Berta) .... Town of Wappinger Zoning Board of Appeals Page 11 Minutes of May 13, 2008 \..- ADDeal No. 08-7366 Stoneeate I Berta - Seeking an Interpretation of the Zoning Code as to what constitutes a kitchen. The property is located Old Post Road and is identified as Tax Grid No. 6157-02-641504 in the Town of Wappinger. (Berta) Present: Michael Berta Rick Romig Mr. Shah - Architect - Attorney - Applicant Mr. Horan: This application has been sent to the Office of the DC Planner and after review they feel it is a matter of local concern. We also have received the long EAF so the board may declare a neg. dec. Mr. Casella: Ms. McEvoy-Riley: Vote: Motion to declare a neg. dec. Second the motion. All present voted aye. Mr. Prager: I will read into the record our findings. 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: Uses) 08-7365 & 08-7366 January 8, 2008 SAZ LLC by Michael R. Berta 1316 Route 9 135689-6157 -02-641504-0000 DD & R-20 SAZ LLC ~ 240-16(C)(2)(Non-Conforming ~ 240-37 (District Regulations) Description of the Premises & Proposed Chanees A site plan entitled "Proposed Renovation! Alteration to Stonegate Old Post Road Wappinger Falls, New York dated November 8, 2007 (no revision date) prepared by Michael R. Berta containing 4 sheets has been submitted by the Applicant (hereinafter "SAZ Site Plan") for the above noted premises. The SAZ Site Plan depicts four buildings ~ designated A, A-2, B and C. The buildings contain a mix of dwelling units and "rooms Town of Wappinger Zoning Board of Appeals Page 12 Minutes of May 13, 2008 '-' without kitchen facilities." The Applicant seeks to increase the number of "rooms" in Building B by converting the existing dayroom and first floor caretaker's apartment into additional rooms and relocating the caretaker's apartment to the second floor of the building, which was not previously living space. The Applicant intends to create a total of 13 Units in Building B which includes the caretaker's apartment. The Applicant has not requested any changes to Buildings A, A-2 or C. Relevant Definitions ~240-5 of the Town of Wappinger Zoning Code contains the following definitions: BOARDINGHOUSE - A building or portion thereof containing three or more rooms without kitchen facilities, that are occupied on a nontransient basis for sleeping purposes for compensation, whether the compensation is paid directly or indirectly. The term "boardinghouse" shall be deemed to include rooming house, but not bed-and-breakfast establishment, motel, hotel or multifamily dwelling. DWELLING - A building containing one or more dwelling units. DWELLING, MULTIFAMILY - A dwelling containing three or more dwelling units. ~ DWELLING, ONE-FAMILY - A dwelling containing a single principal dwelling unit. DWELLING, TWO-FAMILY - A dwelling containing two principal dwelling units. DWELLING UNIT - A building or portion thereof providing complete housekeeping facilities for one family including independent kitchen, sanitary and sleeping facilities, and physically separate from any other dwelling unit, whether or not in the same building. The subject parcel is located in both the HD & R-20 zones, however, Buildings A, A-2, Band C are located in an HD District. Under the Zoning Code, Boardinghouses are not permitted in any District in the Town, however, the use of the premises predates the Zoning Code and is therefore an existing Non-Conforming Use under ~240-16 of the Town of Wappinger Zoning Code. The ARCO Site Plan ARCO Properties, Ltd., the prior owner of the premises, submitted a Site Development Plan to the Planning Board of the Town of Wappinger entitled "Lands of ARCO Properties, Ltd. Amended Site Plan: Rooming House Renovations" dated Jan. 9, 1998, last revised Feb. 23, 1998 containing 5 sheets. (hereinafter "ARCO Site Plan") The ~ ARCO Site Plan was approved on May 4, 1998 by the Town of Wappinger Planning Town of Wappinger Zoning Board of Appeals Page 13 Minutes of May 13, 2008 '--' Board. The Resolution approving the ARC a Site Plan allowed an existing 2,304 square foot building to contain 17 rooming house rooms, but does not reference which building was being modified. Sheet 2 of 5 of the ARCa Site Plan shows 17 rooms in Building C. The Resolution of approval does not mention any changes to the other buildings. Sheet 4 of 5 of the ARCa Site Plan shows a floor plan for the first floor of Building B, with a caretaker apartment (a dwelling unit), four "rooms without kitchen facilities", a dayroom, a store room and a lobby; the second floor of building B is not shown and no stairs are shown. It appears that Building B was not changed as a result of the ARC a application. According to the above definitions, Building B is considered to be a ane Family Dwelling and a Boardinghouse under the Zoning Code. Sheet 3 of 5 of the ARCa Site Plan depicts the configuration of existing Buildings "1-A and "2-A". Building I-A is shown to contain 10 Boarding House rooms and 2 Dwelling Units called "Efficiency Units" with stove and sink. Building 2-A contains two dwelling units. The SAZ Site Plan \.... According to the testimony of the Applicant, there was a fire in Building B that damaged the caretaker portion of that building. After the fire, the Applicant submitted to the Building Department 4 sheets of plans dated November 8, 2007 prepared by Michael R. Berta. (hereinafter "SAZ Site Plan") Sheet EX-2 of the SAZ Site Plan proposed a reconfiguration of Building B. The four "rooms without kitchen facilities" shown on the ARC a site plan remain and 8 new rooms with "kitchenettes" are proposed to be added on the first floor of Building B. The dayroom is removed and the caretaker's apartment is moved from the first floor of Building B to the second floor. Sheet EX-l shows the configuration of Buildings A and A-2 which agree with the ARC a Site Plan. Sheet EX-3 depicts Building C with 16 rooms rather than the 17 approved on the ARC a Site Plan. Sheet EX-2 of the SAZ Site Plan depicts wash basins in the bathrooms for the 8 proposed units, but no sinks are shown in the "kitchenette units." Upon an inspection of the premises when construction was nearly completed, building inspectors noted that plumbing for sinks were located in the "kitchenette units." A stop work order was issued because the work was not in accordance with the plans submitted. The Applicant testified that the kitchenette units are intended to contain a small dormitory type refrigerator and a microwave oven in addition to the bar sinks. The Zoning Administrator made the determination that the combination of a refrigerator, a microwave oven and a bar sink constitutes "kitchen facilities." Because the new rooms now contain "kitchen facilities" the units change from Boardinghouse Rooms to Dwelling Units, thus changing Building B from a Boardinghouse with a Single Family Dwelling Unit, into a Multi-Family Dwelling. A Multi-Family Dwelling is not permitted in the HD District. ~ Town of Wappinger Zoning Board of Appeals Definition of "Kitchen Facilities" Page 14 Minutes of May 13, 2008 '--' The definition of "kitchen facilities" is central to this case because its presence turns a Boarding House room into a Dwelling Unit. Neither "Kitchen" nor "Kitchen Facilities" are defined terms in the Zoning Code. The American Heritage Dictionary's primary definition for kitchen is: "1. A room or an area equipped for preparing and cooking food." kitchen. Dictionary.com. The American Heritage@ Dictionary of the English Language, Fourth Edition. Houghton Mifflin Company, 2004. http://dictionary.reference.comlbrowselkitchen (accessed: May 09,2008). A Rule of the New York State Division of Housing and Community Renewal dealing with Rent Controlled Units found at 9 NYCRR 2200.9 defines a "self-contained family unit": '-" (2) The term self-contained family unit shall mean a housing accommodation with private access, containing two or more rooms, consisting of at least one bedroom and a living room/dining space area in addition to a kitchen (with cookine: and refrie:eration facilities and a sink), a private bathroom (with a washbasin, toilet and bathtub or enclosed shower), and at least one closet plus an additional closet for each bedroom. Such accommodation shall contain a minimum total area of 395 square feet, exclusive of the area of bathrooms and closets. In lieu of a kitchen, the accommodation may include an enclosed kitchenette or an area in the living room which is either recessed or semienclosed, provided that all of the above-specified kitchen facilities and equipment are within such recessed or semienclosed area. Where, however, the landlord establishes that either the two-room or total floor area requirement, or both, cannot be complied with because of unique or peculiar circumstances, the administrator may waive this requirement if he finds that such waiver is not inconsistent with the purposes of the Rent Law and these regulations and would not be likely to result in the circumvention or evasion thereof. (Emphasis added) "American Housing Survey" prepared by the United States Census Bureau has the following definition: "Complete kitchen facilities. A housing unit has complete kitchen facilities when it has all of the following: (1) kitchen sink; (2) burners, cook stove, or microwave oven; and (3) refrigerator." http://www.census.govlhhes/wwwlhousinglahs/ahsO lIappendixa. pdf. All three of the above definitions are in accord with the conclusion reached by the Zoning Administrator and we agree that her determination is correct. For purposes of the Town of Wappinger Zoning Code a unit has "kitchen facilities" when it has all of the ~ following: (1) kitchen sink; (2) burners, cook stove, or microwave oven; and (3) Town of Wappinger Zoning Board of Appeals Page 15 Minutes of May 13, 2008 refrigerator. The "kitchenette" proposed by the Applicant has a sink, a microwave oven ~ and a refrigerator therefore the rooms contain "kitchen facilities." Proposed Rooms Constitute Dwellinl! Units The eight new rooms proposed by the Applicant for Building B contain "complete housekeeping facilities for one family including independent kitchen, sanitary and sleeping facilities, and physically separate from any other dwelling unit" therefore they are dwelling units and not Boardinghouse rooms. The Zoning Administrator's determination that the proposed new rooms constituted "dwelling units" is supported by the facts and the definition above and therefore it is affirmed. Variance to Use Buildinl! B as a Multi-Familv Dwellinl! Is Denied The Applicant seeks to add eight new rooms with "kitchenettes" to Building B. These eight rooms are dwelling units, and thus Building B would require a variance from this Board permitting a Multi-Family Dwelling in an HD District which is otherwise prohibited. '-' The application for a use variance is denied because removal of the sinks from the "kitchenettes" returns the proposed new rooms to the status of Boardinghouse rooms rather than Dwelling Units. Furthermore, Sheet EX-2 of the SAZ Site Plan does not show sinks in the "kitchenette units." If the rooms are constructed in accordance with the submitted plans, the rooms are Boardinghouse rooms and a use variance for a multi- family dwelling is not required, therefore it cannot be granted. No unnecessary hardship is caused to the Applicant by requiring the removal of the sinks. The applicant has not presented any quantifiable financial evidence to show that the inclusion of the sinks would enhance the return of investment for the premises, and any increase in rent would be minimal at best. In fact, the four existing Boardinghouse rooms remain without sinks. There is no compelling reason to allow for the addition of sinks to the new rooms which by definition would change the use of the premises from a Boarding House to a Multi-Family Dwelling. The applicant has failed to establish unnecessary hardship which is required for a use variance in accordance with Town Law ~267-b (2)(b) and ~ 240-107 (B)(2)(b)(I) Stop Work Order Affirmed The Stop Work Order issued on September 27, 2007 by Mark Lieberman and amended by Tatiana Lukianoff on September 27, 2007 was proper because no sinks are shown in the "kitchenettes" shown on Sheet EX-2 of the SAZ Site Plan and plumbing for such sinks was installed. This plumbing work was done without plans and it is a violation. Such plumbing should be removed. ~ Town of Wappinger Zoning Board of Appeals Page 16 Minutes of May 13, 2008 '-" ZBA Lacks Jurisdiction to Modifv Site Plan Issued bv Plannine: Board The Planning Board approved the ARC a Site Plan on May 4, 1998 which authorized 17 rooming house rooms in Building C. The ARca Site Plans shows floor plans for Buildings A, A-2 and B but those buildings are not mentioned in the Resolution of Site Plan Approval. The ARCa Site Plan does not show a second floor in Building B. The ZBA conducted a site visit and it determined that the SAZ Site Plan properly reflects the current configuration of Building B and it appears that the ARC a Site Plans were incorrect in at least two respects: (i) the Second Floor of Building B was not shown and (ii) no stairway leading up to the second floor is shown on the Building B floor plan. The ZBA has jurisdiction to grant a use variance for the premises to allow for a multi-family dwelling, but it is without jurisdiction to vary the number of Boardinghouse Rooms established by the Planning Board. The number of units originally set by the Planning Board for Building B as a result of the ARC a Site Plan is questionable because the second story is missing. The jurisdiction of the Planning Board to entertain the ARC a Site Plan application and the SAZ Site Plan application appears to come from ~ 240-l6(C)(1)(b) of the Town of Wappinger Zoning Code. '-' Further, a building or structure which contains a legal nonconforming use shall not be enlarged relative to the size of such use on the effective date of this chapter, nor shall any external evidence of such use be increased by any means whatsoever, except that when authorized by special permit of the Planning Board, a building containing a nonconforming retail or service business use may be enlarged or extended to an extent not exceeding 50% of the gross floor area of the building devoted to such nonconforming use which legally existed on the date that such use became nonconforming under the terms of the Town of Wappinger Zoning Law. Based on this section, a Boarding house could be viewed as a nonconforming service business. It further appears that no expansion of external evidence of the non- conforming use will be created. The ZBA is not in a position to determine the jurisdiction of the Planning Board in this case because the Planning Board took jurisdiction of the Stonegate Site Plan when it approved the ARca's application. ~240-l6(C)(1)(b) allows the Planning Board to enlarge non-conforming uses and it did so when it allowed for 17 rooms under the ARCa application this prior determination will not be disturbed. Since the Planning Board set a room count in the ARca application, any variation in the number of Boardinghouse rooms is a site plan amendment and does not require a use variance. The Planning Board should determine the appropriate number of Boardinghouse rooms in Building B taking into account the entire site plan as well as the reduction in the number of rooms in other ~ buildings. No use variance is required for the Planning Board to accomplish that task. Town of Wappinger Zoning Board of Appeals Page 17 Minutes of May 13, 2008 '-' The foregoing is the determination of the Zoning Board of Appeals. Ms. McEvoy-Riley: Mr. Casella: Roll Call: Ms. McEvoy-Riley: Mr. Romig: Mr. Horan: Mr. Berta: Mr. Prager: Mr. Romig: Mr. Horan: '-" Mr. Romig: Mr. Berta: Ms. McEvoy-Riley: Mr. DellaCorte: Vote: Meeting ended at 9: 15 PM ~ Motion to deny the Use Variance. Second the motion Ms. McEvoy-Riley: Aye. Mr. DellaCorte: Aye. Mr. Casella: Aye. Mr. Prager: Aye. You need to go back to the PB now. I'm sure there will be some coordinated effort made between the two boards. I'm not sure why the PB kicked this here. Realistically it is up to the PB when it's within their jurisdiction. If we remove the sinks can we leave the refrigerators and stoves? Yes. So the addition of sinks make it multi-family, Ijust want to have this right. It's not quite clear what the request was. To the extent that the request was for additional boarding house rooms, we don't have the jurisdiction to do that because once it went into the planning board it is no longer a prior non-conforming use anymore. It now has a site plan, so it's approved under a site plan. So we go back to the PB now. Thank you. Motion to adjourn. Second the motion. All present voted aye.