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2007-02-13 ZONING BOARD OF APPEALS February 13,2007 Agenda \..., Town of Wappinger Zoning Board of Appeals MEETING DATE: February 13, 2007 TIME: 7:30 PM Town Hall 20 Middlebush Road Wappinger Falls, NY Approve minutes for November 28, 2006. Approve minutes for December 12, 2006. Approve minutes for January 9,2007. Approve minutes for January 23, 2007. Approve site minutes for January 13, 2007. Approve site minutes for January 27, 2007. + + + Adjourned Public Hearing: \.. Appeal No. 06-7332 Tech Air Site Plan - Seeking area variances of Section 240-37 for reauests lA throul!h 5E and Section 240-97 for variance 6F of District Zoning Regulations for HO (Highway Office) Zoning. lA-Where a lot area of one acre is reauired, the applicant is proposing a lot area of .51 of an acre, thus reauestinl! a variance of .49 acre. 28- Where a lot width of 150 feet is reauired, the applicant is proposing a lot width of 87 feet for a pr~existinl! condition, thus reauestinl! a variance of 63 feet. 3C-Where a front yard setback of 50 feet is reauired alonl! Smithtown Road. the applicant is proposing a front yard setback of 5 feet for the corner of the proposed buildinl! from the property line, thus reauestinl! a variance of 45 feet. 4D:Where 50 feet is reauired on a corner lot for a side yard setback eaual in depth ofthe front yard setback, the applicant is proposing a side yard setback of 15 feet from the Route 9 side of the property, thus reauestinl! a variance of 35 feet. The proposed building is to be located 15 feet from the side property line that runs along Route 9. 5E-Where a side yard setback of 10 feet is reauired. the applicant is proposing a side yard setback of 5 feet for the proposed build in I! from the property line, thus reauestinl! a variance of 5 feet. 6F- Where 21 parkinl! spaces are reauired for retail business includinl! offices and storal!e, the applicant is proposing 11 vehicle spaces includinl! 1 Handicap Space, thus reauestinl! a variance of 10 parkinl! spaces. The property is located at 1123 Route 9 ( Corner of Smithtown Road and Route 9) and is identified as Tax Grid No. 6157-04-671026 in the Town of Wappinger. Amended Public Hearing: Appeal No. 06-7333- Jeffrev Stranl! - Seeking an area variance of Section 240-37 and Section 240-1 07B (2) (b) [2] of District Zoning Regulations for HB Zoning. - Where 2 acres are reauired. the applicant is proposing 1. 78 acres to allow for a mix of commercial and multi- familv housinl!, thus reauestinl! a variance of .22 acres. - Where a lot depth of 200 feet is reauired. the applicant is proposing a lot depth of 105 feet to allow for a pr~ existinl! condition, thus reauestinl! a variance of 95 feet. Where 75 feet from the centerline of a State or County road is reauired, the applicant can provide 43 feet. thus reauestinl! a variance of 32 feet for a front yard setback. The property is located between Old State Road and Old Route 9 and is identified as Tax Grid No. 6157-02- 580777/581803 in the Town of Wappinger. Public Hearing: Appeal No. 07-7334 John O'Donnell- Seeking an area variance of Section 240-37 of District Regulations in an R-40 Zoning District. -Where a front yard setback of 50 feet is reauired. the applicant is proposinl! a front yard setback of 40 feet. to allow for a single family dwelling, thus reauestinl! a variance of 10 feet. The property is located at 6 Whites Corner Lane and is identified as Tax Grid No. 6257-04-936302 in the Town of Wappinger. '-' 1 ZONING BOARD OF APPEALS February 13,2007 \.,. Appeal No. 07-7336 Barbara Chase & Crail! Kunaschk- Seeking an area variance of Section 240-37 of District Regulations in an R-20 Zoning District. -Where a side yard setback of20 feet is required. the applicant is proposinl! a side yard setback of 10 feet, to allow for a 30 X 28 foot detached garage with electric, thus requestinl! a variance of 10 feet. -Where the code states...in no case shall Accessorv Structures be oermitted in the front yard the applicant requests a variance for a detached garage in his front yard. The property is located at 22 Spook Hill Road and is identified as Tax Grid No. 6157-02-956905 in the Town of Wappinger. Discussions: '-" ~ 2 Town of Wappinger Zoning Board of Appeals \... MINUTES Town of Wappinger Zoning Board of Appeals February 13, 2007 Summarized Minutes Members: Mr. Fanuele, Ms. McEvoy-Riley Mr. Prager, Mr. DellaCorte, Members Absent: Mr. Warren, Others Present: Mrs. Roberti, Mr. Caviglia '--' Page 1 Minutes of February 13,2007 MINUTES APPROVED t1AR 13 2Qf;7 Town Hall 20 Middlebush Road Wappinger Falls, NY Chairman Member Vice-Chairman Member Member Secretary Special Counsel SUMMARY Ad iourned Public Hearin2s: Tech Air Site Plan Amended Public Hearin2s: Strang Site Plan Public Hearin2s: John O'Donnell Chase & Kunaschk \... -Six Variances Granted. -Closed Public Hearing, Decision on February 27, 2007. -Variance Granted. -Two Variances Granted. Town of Wappinger Zoning Board of Appeals '-" Mr. DellaCorte: Mr. Prager: Vote: Mr. DellaCorte: Mr. Prager: Vote: Mr. DellaCorte: Mr. Prager: Vote: Mr. DellaCorte: Mr. Prager: Vote: Mr. DellaCorte: Mr. Prager: Vote: Mr. DellaCorte: Mr. Prager: Vote: ~ Page 2 Minutes of February 13,2007 Motion to approve the minutes for November 28, 2006. Second the motion. All present voted aye. Motion to approve the minutes for December 12,2006. Second the motion. All present voted aye. Motion to approve the minutes for January 9, 2007. Second the motion. All present voted aye.. Motion to approve the minutes for January 23, 2007. Second the motion. All present voted aye. Motion to approve the site minutes for January 13,2007. Second the motion. . All present voted aye. Motion to approve the site minutes for January 27, 2007. Second the motion. All present voted aye. Appeal No. 06-7332 Tech Air Site Plan - Seeking area variances of Section 240-37 for requests lA throue:h 5E and Section 240-97 for variance 6F of District Zoning Regulations for HO (Highway Office) Zoning. lA- Where a lot area of one acre is required. the applicant is proposing a lot area of .51 of an acre. thus reQuestine: a variance of.49 acre. 2B- Where a lot width of 150 feet is required. the applicant is proposing a lot width of 87 feet for a pre-existine: condition. thus reQuestine: a variance of 63 feet. 3C- Where a front yard setback of 50 feet is required alone: Smithtown Road. the applicant is proposing a front yard setback of 5 feet for the corner of the proposed buildine: from the property line. thus reQuestine: a variance of 45 feet. 4D:Where 50 feet is required on a corner lot for a side yard setback equal in depth ofthe front yard setback. the applicant is proposing a side yard setback of 15 feet from the Route 9 side ofthe property. thus reQuestine: a variance of35 feet. The proposed building is to be located 15 feet from the side property line that runs along Route 9. 5E-Where a side vard setback of 10 feet is required. the applicant is proposing a side yard setback of 5 feet for the proposed buildine: from the property line. thus reQuestine: a variance of 5 feet. 6F- Where 21 parkine: spaces are required for retail business includine: offices and storae:e. the applicant is proposing 11 vehicle spaces includine: 1 Handicap Space, thus reQuestine: a variance of 10 parkine: spaces. The property is located at 1123 Route 9 ( Corner of Smithtown Road and Route 9) and is identified as Tax Grid No. 6157-04-671026 in the Town of Wappinger. '-" Town of Wappinger Zoning Board of Appeals ~ Present: Mr. Prager: Mr. DellaCorte: Vote: Mr. Paggi: Mr. Whalen: Ms. McEvoy-Riley: Mr. Whalen: ~ Ms. McEvoy-Riley: Mr. Whalen: Ms. McEvoy-Riley: Mr. Paggi: \.- Page 3 Minutes of February 13,2007 Larry Paggi - Project Engineer Don Swartz - Architect Steve Whalen - Architect Motion to open the public hearing. Second the motion. All present voted aye. What were going to do toriight is have Steve Whalen give you a run. down of the project with a slide show. Gave presentation to the ZBA and the public. Explained the need for each variance with a slide. The landscaping will be mostly on the Route 9 side of the property because the Smithtown side is very tight although it will be landscaped. We have reviewed the enclosure for the combustible materials with the Town Fire Inspector and he is comfortable with this layout. The walls and floor will be concrete arid the screening for the combustibles will be expanding metal. The rest of the building will be done in stucco. Didn't George Kolb want this at least 10 feet off t~e property line? We have moved it to 15 feet off the line. Also the sides need to withstand 12,000 Ibs. of force? We contacted the company that makes the expanded metal and based on the building code requirements and their testing, it exceeds the 12,000 lb. force. Good. I'd like to go over the six variances once more. The first two are really just administrative in nature because they have to do with the existing geometry of the site. The third and fourth variance are area variances for setbacks and we are moving the building in from the existing building there now. Both are front yard variances because this is a comer lot. The existing building is located further back off of Route 9 then its neighboring building. Variance number 5 & 6 pertain directly to this application. Number five is a five foot variance to allow the building to be set back as far as possible to allow for truck traffic. Number six is in regard to the parking. This is an existing gravel lot and where zoning requires 21 spaces we are proposing 11 spaces which includes one handicap space. This business is not the type that has a lot of customers coming to the site. Most of their business is in delivery. We looked at what we could do to make the site more attractive and we believe we have achieved that with landscaping and a safer one way in and one way out entrance and also the closing of the Route 9 entrance. Page 4 Town of Wappinger Zoning Board of Appeals Mr. Prager: '-" Mr. Paggi: Mr. Prager: Mr. Paggi: Mr. Fanuele: " Mr. Prager: Mr. DellaCorte: Vote: Mr. DellaCorte: Mr. Prager: Roll Call: \., Minutes of February 13,2007 How many employees will there be? Two drivers and three onsite employees for a total of five employees. How many customers do you see in a typical day? 5 to 10 at most in an hour. Mostly there is no more than 3 or 4 customers there at anyone time. Is there anyone in the audience with a comment or question? Hearing none. Motion to close the public hearing. Second the motion. All present voted aye. Motion to grant the six variances. This is self-created and they are rather substantial but the property is already existing and I don't believe this will create an undesirable change, rather I believe that the change will be desirable. I don't believe there is another way to . ,make this feasible for the applicant. Second the motion. Ms. McEvoy-Riley: Mr. Prager: Mr. DellaCorte: Mr. Fanuele: Aye. Aye. Aye. Aye. Appeal No. 07-7334 John O'Donnell- Seeking an area variance of Section 240-37 of District Regulations in an R-40 Zoning District. - Where a front yard setback of SO feet is required. the applicant is proposine a front yard setback of 40 feet. to allow for a single family dwelling, thus reQuestine a variance of 10 feet. The property is located at 6 Whites Corner Lane and is identified as Tax Grid No. 6257-04- 936302 in the Town of Wappinger. Mr. Prager: Mrs. Roberti: Mr. Prager: Ms. McEvoy-Riley: Vote: Mr. Fanuele: Mr. O'Donnell: \..,.. Mr. Fanuele: Are the mailings in order? Yes they are. Motion to open the public hearing. Second the motion. All present voted aye. Swore in the applicant. I would like to increase the size ofthe home I will be building but the building envelope is too small for it. So you want to move it 10 feet closer to the road? Page 5 Town of Wappinger Zoning Board of Appeals Mr. O'Donnell: '-' Mr. Fanuele: Mr. Prager: Ms. McEvoy-Riley: Mr. O'Donnell: Mr. Fanuele: Mr. Prager: Mr. DellaCorte: Vote: Mr. Prager: Ms. McEvoy-Riley: Roll Call: \.r Mr. O'Donnell: Minutes of February 13,2007 Yes. We have to maintain a 90 foot setback in the rear for the power lines. We did go out there and did a site visit. The development looks good. We also have the letter from the power authority that they have no objections to this. Correct. Is there anyone in the audience with a comment or question? Hearing none. Motion to close the public hearing. Second the motion. All present voted aye. Motion to grant the variance. This will not be detrimental to the neighborhood nor change the character of it. It.s self-created but is not substantial. Second the motion. Ms. McEvoy-Riley: Mr. Prager: Mr. DellaCorte: Mr. Fanuele: Aye. Aye. Aye. Aye. Thank you. Appeal No. 07-7336 Barbara Chase & Crail!: Kunaschk- Seeking an area variance of Section 240-37 of District Regulations in an R-20 Zoning District. -Where a side yard setback of20 feet is required, the applicant is proposinl!: a side yard setback of 10 feet. to allow for a 30 X 28 foot detached garage with electric, thus reQuestinl!: a variance of 10 feet. - Where the code states.. .in no case shall Accessory Structures be permitted in the front yard the applicant requests a variance for a detached garage in his front yard. The property is located at 22 Spook Hill Road and is identified as Tax Grid No. 6157-02- 956905 in the Town of Wappinger. Mr. Fanuele: Mrs. Roberti: Mr. Prager: Mr. DellaCorte: Vote: \....- Are the mailings in order? Yes they are. Motion to open the public hearing. Second the motion. All present voted aye. Town of Wappinger Zoning Board of Appeals '-' Mr. Fanuele: Mr. Kunaschk: Mr. Prager: Ms. McEvoy-Riley: Mr. Fanuele: Mr. Kunaschk: Mr. Fanuele: Mr. Prager: Ms. McEvoy-Riley: Vote: Mr. Prager: ~ Mr. DellaCorte: Roll Call: Mr. Kunaschk: Page 6 Minutes of February 13,2007 Swore in the applicant. Our front yard was originally the rear yard many years ago. Now our front is the old rear and the only location that the garage could be placed is to the side forward of the house. This is a very strange lot. Yes but v:ery interesting. You're quite a distance from the road. Yes at least a 100 yards. Is there anyone in the audience with a comment or question? Hearing . none. Motion to close the public hearing. .~econd the motion. All present voted aye. Motion to grant the variance. This will not be detrimental to the neighborhood nor change the character of it. There doesn't seem to be an alternative for this. It is self-created and a little substantial at 50 %. Second the motion. Ms. McEvoy-Riley: Mr. Prager: Mr. DellaCorte: Mr. Fanuele: . Aye. Aye. Aye. Aye. Thank you. Appeal No. 06-7333- Jeffrev Strane: - Seeking an area variance of Section 240-37 and Section 240-107B (2) (b) [2] of District Zoning Regulations for HB Zoning. 1. -Where 2 acres are required, the applicant is proposing 1.78 acres to allow for a mix of commercial and multi-familv housine:. thus requestine: a variance of .22 acres. 2. -Where a lot depth of200 feet is required, the applicant is proposing a lot depth of 107.8 feet to allow for a pre-existine: condition. thus requestine: a variance of 92.2 feet. 3.-Where 50 feet from the from the front line of other street (Town Road) is required. the applicant can provide 7.9 feet, thus requestine: a variance of 42.1 feet for a front yard setback. 4.- Where a rear yard setback of 30 feet is required, the applicant is proposine: a rear yard setback of 13 feet. to allow for the proposed design, thus requestine: a variance of 17 feet. The property is located between Old State Road and Old Route 9 and is identified as Tax Grid No. 6157-02-580777/581803 in the Town of Wappinger. \. Town of Wappinger Zoning Board of Appeals Present: '-' Mr. Fanuele: Mr. Caviglia: ~ Ms. McEvoy-Riley: Mr. DellaCorte: Vote: Mr. Caviglia: Mr. Ninnie: \.... Page 7 Minutes of February 13,2007 Jeffrey Strang Eugene Ninnie Marco do want to open this? Yes Mr. Chairman, I do understand the board is contemplating re- opening the hearing based on a publication omission the first time around although the parties that were present did address aIr the items that appear to be amended to avoid any problem. A re-publication was required by the ZBA and technically you should vote to re-open the hearing with regard to any additional information that needs to be submitted by the applicant and any comments as to those changes. The board would still be incorporating all the discussions and evidence submitted at the prior public hearing and this just would just be a supplemental type of hearing to address anything that is actually new if anything. I note that in the audience, Mr. Thompson who has represented several of the objectants last time is here so I also note that there was an amended applicant filed February 7th, 2007 which reflecteOd the items that have been discussed !it the last public hearing as well and submissions dated January 15,2007 and submitted to the board on February 7, 2007 where submitted by the applicant addressing some of the objections that were raised presumably at the la~t public hearing and those would be incorporated in these proceedings and other than that the board would decide now whether to open the public hearing by motion and vote. Motion to re-open the public hearing. Second the motion. All present voted aye. I note that Mr. Thompson is in the audience representing the other three persons that he had the last time. I don't know if the applicant wants to submit anything in addition to his last submission filed February 7, 2007. I will just touch on the high points of that submission. This plan is also currently before the PB and Mr. Strang is trying to comply with the HB zone. The responses is as follows: The character of the neighborhood will not change since we are providing an architectural flare that will mimic residential construction and we have submitted color renditions at the previous meeting. The neighborhood is conducive for a mixed use; office, retail and residential use. As you know that within the area of the HB zone where Mr. Strang has his property there is DCH Toyota, Poughkeepsie Nissan, Performance Motor Cars, Greenbaums and Gilhooleys Restaurant and Cablevision properties that surround this area. Also the Strang residential use here along with the residential uses that are on the opposite side of Old State Road are pre-existing non- conforming use within the HB zone. The variances are necessary due to the fact that the property is pre-existing and non-conforming in relation to its size, setback, width and length. The property has existing structures on it which currently do not comply with the HB zone and Town of Wappinger Zoning Board of Appeals Page 8 Minutes of February 13,2007 '-" therefore in an effort to provide for a legally conforming site plan for an HB zone, variances are sought. There are no other way to achieve this conformance without having variances and therefore the reason we are here. The change from the standard setup from under the zoning law is not substantial compared to the existing structures that already occupy the site and I have already provided you with a comparative analysis showing that if we had to come here to get a variance for the existing use, those variances are far greater then what we are asking for here. If the variances are granted the physical and environmental conditions in the neighb<?rhood will not be impacted due to the project conforming to the current Town of Wappinger Code under site plan approval to install the necessary drainage structures, grading, parking and landscaping. We will also be providing a SW pollution prevention plan to conform with NYSDEC requirements with erosion control. The need for the variances came about when the applicant tried to bring a pre-existing non- conforming use to a conforming use within the HB zone. With that use and the physical property limitations which created the need for the variances and all the variances as noted here are not self-created. The property is not unique in the neighborhood in that it needs a variance be~ause it is conducive to the HB zone; moreover it conforms to the hamlet center as described. in the town's current draft Master Plan in an effort to foster a compact vibrant community center with carefully arranged shops and offices with residences above or behind these buildings fronting main roads. This subject property does just that. It is important to note that the properties outlined in Mr. Thompson's letter are pre-existing non-conforming residences within the HB zone. Allowing this property to move forward with the current project with the PB will only serve to increase the value of their properties at which time they can transform their pre-existing non-conforming use into a conforming HB zone making their property more valuable than a residence. \.r Weare providing, as an addition to the Zoning Board of Appeals Application for an Area Variance, a Narrative for further clarity of the requested Area Variances: Variance #1: Minimum Lot Area: This is a request for a Variance to allow the required minimum Lot area be reduced from the Code Regulation of 2.00 Acres to I .78 Acres. This is for an allowance for the reduction of 0.22 Acres to accommodate the existing site conditions and allow the development of the proposed design as provided. This is an 11 % lot Variance for the total lot. Variance #2: Minimum lot Depth: This is a request for a Variance to allow the Minimum lot Depth to be reduced from the Code Regulation of 200 feet to 107.8 feet. This is a reduction of 92.2 feet to accommodate existing site conditions and the proposed design as provided. This is a 46.1 % Variance request from the required lot depth. \.... Town of Wappinger Zoning Board of Appeals '-' Mr. Caviglia: Mr. Ninnie: Mr. DellaCorte: Mr. Ninnie: ~ Mr. Fanuele: Mr. Thompson: Mr. Caviglia: Mr. Thompson: Audience member: ~ Mr. Caviglia: Page 9 Minutes of February 13,2007 Variance #3: Minimum Front Yard (setback) from Front Line of Other Street: This is a request for a Variance to allow the Front Yard (setback) from the Front Line of Other Street (Town Road) to be reduced from the Code Regulation of 50 feet to 7.9 feet. This is a reduction of 42.1 feet to accommodate the proposed design as provided and is an 84.2% Variance request from the required front setback from the front line. Variance #4: Minimum Rear Yard: This is a request for a Variance to allow the Rear Yard Setback 'to be reduced from the Code Regulation of 30 feet to 13 feet. This is a reduction of 17 feet to accommodate the proposed design as provided, which is a 56.7% Variance request from the required minimum rear yard setback. . If I may Mr. Chairman, Mr. Ninnie can you state which is the fourth variance that is being applied for. It is the rear yard variance. There are a set of steps being proposed and there is a setback needed of 30 feet and we can only provide 13 feet, so we are requesting a 17 feet"variance" Is the rear yard Old State Road? Yes. Is there anyone in the audience with a question or comment? Wayne Thompson, 17 Hasbrouck Drive, Poughkeepsie. I take exception to nearly all the comments that the gentleman presented tonight. The courts have upheld that after a public hearing when an applicant has submitted other documents that you will consider in making your decision that the objectants are entitled to those documents. He submitted a paper and I was not contacted at all that he had submitted additional information. To that I would ask that the board grant us 30 days to consider his additional submission so that we can properly fashion a response to those submissions. Additionally as point of procedural order the public hearing published here in the agenda tonight is substantially different then that, that was mailed by certified mail to the residents. Although you did state in your address, procedurally the notice is still defective. Mr. Thompson, are there other neighbors here this evening other than the three that you represent? I don't know of any others. These are just family members. So for the record, everyone you represent is here tonight? Town of Wappinger Zoning Board of Appeals Mr. Thompson: \.." Mr. Fanuele: Mr. Thompson: Mr. Caviglia: Mr. Thompson: \.., Mr. Fanuele: Mr. Thompson: Mr. Fanuele: Mr. Thompson: Mr. Fanuele: Mr. Thompson: Mr. Liardo: Mr. Thompson: Mr. Ninnie: Mr. Thompson: '-" Page 1 0 Minutes of February 13,2007 Yes. To counter a couple of points I have detailed previous meetings on most of our complaints. The board's responsibility here is to protect the character of the neighborhood and preserve for the residents from the encroachment of undesirable commercial growth into a residential district. It is true that all of the residents predated zoning that exist there including the subject parcel and are currently HB zoned. Regardless of that fact to say that it is not a residential district or area based on the people that live there and the character of the neighborhood and the way that the parcel is subject to this application right now is ridiculous. It is their homes and they don't want commercial houses or property. They want to rais,e families, that's why they live there. So for you to say that by putting this there it makes their property more commercially is rather disingenuous to the people who live and reside in those properties. Do you know when the zoning was changed from residential to HB? From near as I can tell it has been HB since 1961. I don't think it was ever residential from the research that I have done. I believe the code was revised in 1963 and then a modification was made for.legal purposes in the early 1970's. The deeds say that the properties pre-dated zoning and therefore they are non-conforming uses. My assumption is that in 1961 when the code was created that is when it was so labeled. That's my conclusion; I haven't spent a lot of time researching it. The residents have lived there from 1961 on? Some of them have lived there prior to that. Ok so some of them have lived there when the zoning came into affect? Yes. No one had comments or complaints to keep the zoning residential? That point I couldn't say. I didn't look at the minutes from the zoning amendments to see if anyone objected to the zoning. I was II years old and wasn't old enough to object. I do have a question for the applicant; you indicate on the maps that your property line goes down the middle of the town road. That's the way the survey came out. I think that the town highway department may have a problem that with you owning property that they maintain. Town of Wappinger Zoning Board of Appeals '-' Mr. Ninnie: Mr. Thompson: Mr. Ninnie: Mr. Thompson: Ms. McEvoy-Riley: Mr. Thompson: Mr. Caviglia: ~ Mr. Thompson: Mr. Caviglia: Mr. Thompson: Mr. Fanuele: Mr. Liardo: Mr. Fanuele: Mr. Thompson: \.....- Page 11 Minutes of February 13,2007 It is currently before the PB which IS also before the Highway Superintendent. If that is not correct it will change the extent of your variances. It is correct. Fine: I don't deny that is where it ended up but I don't know of too many property lines that go down the middle of a town dedicated roads.. I don't think that is a common thing. Tech Air was just here so there is one and look at that, three things on the agenda and two of them had that issue. Wow that's interesting and I guess if we search the deeds there would be some ROW's. So if that's the way the survey comes up then that's it. I would like that information that was submitted so we could offer a' response. I do think that under the c.ircumstance that 30 days is not an unreasonable amount oftime for us to fashion a response. Mr. Thompson you state that you have a court case. that compels the board to do that, can I see that? I have it here in my pile; I will give you the citation. Yes because if! am going to advise the board, if there's such authority I would like to review it. I will step down and look for that, other then that we have clearly stated our position and our objections. Anyone else? I think Mr. Thompson covered most of our comments and making our neighborhood commercial is absurd. We did inspect that neighborhood and if you inspect the zoning map it is commercial. That whole area including your homes is in the HB zone. Right know you folks are legally non-conforming and you can stay here as long as you want but I can't restrict the people who want to use an HB zone for an HB use because I have a resident there. The mere fact that it was so zoned in 1961 in no way reflects the character of the neighborhood. One because it pre-dated the zoning really has no reflection on what the other should be and in fact what would happen here is if these substantial variances were granted in NY State court cases, variances as little as 16% have been held to be substantial by the court of appeals. That none of these are insignificant and they impact all of the five part balancing tests, whereas the previous Town of Wappinger Zoning Board of Appeals Page 12 Minutes of February 13,2007 \... application here tonight, it was substantial but it didn't impact any part of the five part balancing tests. Here it would clearly be a detriment to the surrounding properties which are residential. Matters not that they are legally non-conforming, they pre-dated the zoning. These are residential and this is a residential district. What would happen by granting these variances, you would provide the applicant with a windfall? The property was purchased subject to diminished property rights because of the property as it existed. A clear title search showed when he purchased the property, that it was a non-conforming use and that any future expansion or plans were diminished when the ROW was granted to Route 9 and Old State Road by various town dedications. He couldn't acquire any more property right then what was transferred to him at the time the property was sold. The previous property owner relinquished some of those property rights to the town or the state at the time which made that lot the odd shape that it is. The property can't be sold and acquire more property right, you can only hold as much title as was transferred to 'you. This would be such a grant of property rights that didn't exist that some of the neighbors have relied on, that the property woul,dexist as it is because it was so oddly shaped and that therefore the purchase of their homes was, in reliance on the fact that, that was a non- conforming and probably wouldn't be used for anything else absent a huge favor granted by the ZBA. That would be a tremendous favor granted by the ZBA. This would be tremendous as a commercial piece of property right there; it would be a tremendous windfall. The density is going to be as it exists, 6 residences per acre. There is no place in that area that has six residences per acre. \..r Mr. Fanuele: We don't grant people favors! Let's get that understood. We look at the facts and determine whether we should grant them or not. We don't grant for favors. We represent everybody in the town not just the applicants. We represent the people who have objections to it and we try and understand them and work at an agreement but we do not grant favors and I object to that and I wish you would take that back! Mr. Thompson: I take that back. I say that it would be a windfall by granting the variance for the property, the density, the intensity of use is so great on that small piece of property that there is nothing other then that up and down the street. I have for you from DC GIS information the aerial view of the property. It presents what is there; it's a lot of green space in that area. Mr. Fanuele: We did inspections on the neighborhood. I rode up and down those streets several times to get a better understanding and what I see is the whole area is zoned HB and it has been that way for a long time and there was never any complaints from the residences that live in that HB zone. '-' Town of Wappinger Zoning Board of Appeals Page 13 Minutes of February 13,2007 '-'" Mr. Thompson: There would never be any complaints until something triggered someone to complain because under legally non-conforming uses they could continue to live as they do. Mr. Fanuele: Living in a HB zone you have to assume that it is going to be a business zone and that something is going to go in there at some time. Mr. Thompson: At soine point in time then it should conform to the zoning regulations. Mr. Fanuele: HB zoning regulations. Mr. Thompson: Without these variances the project doesn't go. The variances are substantial; they do have a deleterious affect on the surrounding properties which are residences. Mr. Fanuele: The problem is that they live in an HB zone and their property if sold will bring a higher value then a residential zoned property and I can't . understand your argument that they w~nt to continue to live there in an HB zone. If they want it residential, petition the TB to change. i.t with a re-zone. Mr. Wayne: And that is part of the plan subsequent to this hearing but nothing has triggered any changes in the residences to do anything because there hasn't been any notice other than this project. There was no reason for an objection until a project was proposed. The residents have various rights to live there as legal non-conforming uses, that's there right. '-' Mr. Fanuele: This is a business district and that is how it is zoned. Mr. DellaCorte: Is there a artist's rending of what your building will look like? Mr. Ninnie: Yes we provided a few drawings. Mr. Prager: This is it. (Gave copy to Mr. DellaCorte) Mr. Ninnie: Weare proposing 3 apartments per structure for a total of 9 apartments with offices underneath. I would also like to note for the board as factual information that the building coverage and maximum impervious surface are met in accordance with the HB zone. Mr. Strang: Mr. Thompson referred to that the character will be changed because this is residential and not commercial but as you pointed out this is HB which is commercial and I think if you look at the surrounding area there is a lot more commercial than residential. It is pervasively a commercial area and secondly reference was made that when the house was bought that to some extent it was bought as a residence and that is not true. When I purchased that property it was with the intent of putting a business there and in fact a business was run from there for about 10 to 12 years and we went back into a non-conforming use. So when I bought this property ~ Town of Wappinger Zoning Board of Appeals \...- Mr. DellaCorte: Mr. Thompson: Mr. DellaCorte: Mr. Thompson: Mr. Ninnie: ~ Mr. Caviglia: Ms. McEvoy-Riley: Mr. DellaCorte: Vote: Mr. Caviglia: '-' Page 14 Minutes of February 13,2007 back in I believe 1987, I bought it because it was zoned HB and I could use it for commercial purposes and thirdly the argument that the residents wouldn't be here if not for the variances, I don't believe it is the variances but rather commercial vs. residential. Even if I didn't have variances I believe there would still be arguments. I just wanted to address those comments and make myself clear. I have a question for Mr. Thompson. One second, I am coming up with the citation for Mr. Caviglia. I thought you mentioned that there are no properties currently in that area or the Town of Wappinger where there are that many. . . . . . Along the block. where I would consider the neighborhood, the neighborhood is his property fronting the other neighbors along Old State Road. In that area there are no parcels that have 6 dwelling per acre on it as proposed. That level of intensity doesn't exist in that area right there. The character of the neighborhood should be distinguished from that of the underlying zoning because the property pre-dated zoning. I would also like to point out that the current vision for this area is currently happening before your very eyes. You currently have at least three site plan applications before the PB as we know. One is the La Fonda Del Sol site, DCH doing something in the stone garage as a service center and parking and also Toyota is building something as well as across from this project the Elgen office building will be occurring so the actual character of the neighborhood is HB. In the next five years it will be very hamlet oriented as per the draft master plan for the town. I would like to take a 10 minute break Mr. Chairman in order to access this case at this time in order to advise the board for the request made. Motion to recess for 10 minutes. Second the motion. All present voted aye. Mr. Chairman, I took the opportunity to research the case submitted by Mr. Thompson entitled Stein vs. Board of Appeals of the Town of Islip which is an appellate division case. In reviewing that the salient facts are markedly different. I do not see that there a requirement or authority necessarily from this decision to compel the board to grant an adjournment or to necessarily compel supplying a potential objectant with copies of documents. In the Stein case it was held that a letter that was sent subsequent to the closing of a public hearing but prior to the Town of Wappinger Zoning Board of Appeals Page 15 Minutes of February 13,2007 ...... vote of the zoning board could not be considered by the zoning board and therefore the decision was vacated to be restated based on the facts that were presented at the ZBA hearing. In contrast in this case the matter was closed as far as the public hearing and because of the notice defect it was required that the applicants republish which they did. The four variance that we have considered tonight are as follows: The applicant is seeking area variances of Section 240-37 and Section 240-107B (2) (b) [2] of District Zoning Regulations for HB Zoning. 1. -Where 2 acres are required. the applicant is proposing 1.78 acres to allow for a mix of commercial and multi-family housin'i!:. thus reQuestine: a variance of .22 acres. 2. -Where a lot depth of 200 feet is required. the applicant is proposing a lot depth of 107.8 feet to allow for a pre-existine condition. thus reQuestine: a variance of 92.2 feet. 3.- Where 50 feet from the from the front line of other street (Town Road) is required. the applicant can provide 7.9 feet. thus requestine a variance of 42.1 feet for a front yard setback. 4.- Where a rear yard setback of 30 feet is required. the applicant is proposine: a rear yard setback of 13 feet. to allow for the proposed design, thus reQuestine a variance of 17 feet. The re-noticed publication triggered the need to re-open and have .this public hearing. The submission was not as an after, thought to the last hearing but in anticipation of this hearing which has been filed as of February 7, 2007. In addition to that, the applicant is here this evening and has summarized most of the matter in that submission that has been submitted to this body. Mr. Thompson then after hearing those had an adequate opportunity to respond to those matters that where raised. So the board can close this hearing and proceed to vote now or at a later date or if the board is pre-disposed and I advise the board that they are not required to do so but it can recess again as a purely discretionary decision on the part of the board and provide Mr. Thompson a copy of this January 10,2007 submission that was made on February 7, 2007 and allow him 10 or 15 minutes to review it in case he wants to address any particular matter. Again this is discretionary with the board if it sees so fit. '-" Mr. Prager: Motion to recess for 10 minutes to allow Mr. Thompson to review the document. Second the motion. All present voted aye. Mr. DellaCorte: Vote: Mr. Fanuele: Mr. Prager: Vote: Motion to come back to order. Second the motion. All present voted aye. Mr. Thompson: If it please the board I have just one quick summarizing comment. In weighing the overall affect and reviewing the submission I would just like to point out that for you to conclude that there isn't going to be or substantially change the neighborhood, that the variance granted shouldn't do violence to the existing zoning code and our objection is based on the fact that the size of the variances will alter the ~ Town of Wappinger Zoning Board of Appeals Page 16 Minutes of February 13,2007 \.,. environmental characteristics, that the neighboring residents have enjoyed for a substantial period oftime and that having lived there over this period oftime. I thank you for hearing all my comments and concerns this evening. Mr. Prager: Ms. McEvoy-Riley: Vote: I make a motion we close the public hearing. Second the motion. All present voted aye. Mr. Fanuele: Motion to reserve the decision until the 27th of February to digest the comments that were made by both parties. Second the motion. All present voted aye. Mr. DellaCorte: Vote: Ms. McEvoy-Riley: Motion to adj~urn. Mr. Prager: Second the motion. V ot~: All present voted aye. Meeting ended at 9:15 PM \... Respectfully SUbm. itted,/. .....) ._.. \ . "" ~q ~c~. ~P~~CY7' B~~berti, Secretary i Secretary - Zoning Board of Appeals I \.-