04-7235
TOWN OF WAPPINGER
ZONING BOARD OF APPEALS
SUPERVISOR
JOSEPH RUGGIERO
ZONING BOARD OF APPEALS
20 MIDDlEBUSH ROAD
WAPPINGERS FAllS, NY 12590-0324
(845) 297-1373
TOWN COUNCIL
VINCENT BETTINA
MAUREEN McCARTHY
JOSEPH P. PAOlONI
ROBERT l. VALDATI
March 3, 2005
f\E.CE\\IED
~~~ \ \\ 1Q~5
1'O\J'JN CLE.fW:
To:
Gloria Morse
Town Clerk
f5'!L-
From: Barbara Roberti, Secretary
Town of Wappinger Zoning Board of Appeals
Re: RJA Holding, Inc.
Appeal No. 04-7235
Tax Grid No. 6157-02-899988
Attached you will find the original Application/Decision & Order
for RJA Holding, Inc., 51 Myers Comers Road, Wappinger Falls, NY.
I would appreciate it if you would file these documents.
Attachments
cc: Mr. Macho
Zoning Board
Town File
Town Attorney
Building Inspector
Zoning Administrator
, ,
\ .
..
:" 'J
INTERPRETATION APPLICATION
APPLICATION TO ZONING BOARD OF APPEALS
TOWN OF WAPPINGER, DUTCHESS COUNTY, NEW YORK
Appeal # D4' 7 23~
Date: t"J."&)-D4-
Fee: ~~.oO
Receipt ~\S \~
TO THE ZONING BOARD OF APPEALS, TOWN OF WAPPINGER, NEW YORK:
I (VVe) RJA HOLDING INC.
(Name of Appellantl~1
51 MYERS CORNER ROAD, WAPPJNGERS FALLS NY 12590
(Mailing Address)
> of
914- 845-297-0051
(Tel. Nos. Home/Work)
HEREBY APPEAL TO THE ZONING BOARD OF APPEALS FROM THE DECISION/ACTION OF
THE ZONING ADMINISTRATOR, DATED MAY 2~ , 4904)AND DO HEREBY APPLY FOR AN
INTERPRETATION.
Premises located at 51 MYERS CORNER ROAD, WAPPINGERS FALLS NY 12590
(Address of Property)
6157-02-899988
--
(Grid Nos.)
(Zoning District)
I. RECORD OWNER OF PROPERTY
SAME AS APPLICANT
(Name)
(Address)
914-
(Phone Number)
OWNER CONSENT: Dated: 7/12
Signature:
SEE ATTACHED
Printed:
2. INTERPMTATION REQUEST
I (VVE) HEREBY APPLY TO THE ZONING BOARD OF APPEALS FOR AN INTERPRET A TION OF
THE FOLLOWING REOUIREMENTS OF THE ZONING ORDINANCE.
240-16(C) (3)
(Indicate Artie/e, Section, Subsection and Paragraph)
3. REASON FOR APPEAL (Please explain in detail. Use extra sheet, ifnecessary):
SEE ATTACHED
. .
Zoning Board of Appeals
Intell)retation Application
Appeal No.
Page 2
REASON FOR APPEAL CONTINUED
4. LIST OF ATT ACI-IMENTS (Check applicable information)
) SURVEY DATED
BY
) LAST REVISED
AND PREPARED
) PHOTOS
) DRAWINGS DATED
(x ) LETTER OF COMMUNICATION WHICH RESULTED IN APPLICATION TO THE ZBA.
(e.g., recommendation from the Planning Board / Zoning Denial)
LETTER FROM ZONIN..G ADMINISTRATOR DATED: MAY 28,2004
LETTER FROM DATED:
( x) OTHER (please list): APPELLANT INCORPORATES BY REFERENCE THE PRIOR PROCEEDING AND
AND RECORDS OF THE BOARD FOR 51 MYERS CORNER ROAD.
5. SIGNATURE AND VERIFICATION
PLEASE BE ADVISED THAT NO APPLICATION CAN BE DEEMED COMPLETE UNLESS SIGNED
BELOW.
H~L INFORMATION GIVEN IS ACCURATE AS OF
-~ -'----JTED: ~ //1/~i
{{ /
DATED:
(If more than one Appellant)
Zoning Board of Appeals
Interpretation Application
Appeal No. 01, 7235
Page 3
........................................................................................................................................
......................................................."'...............................................................................
FOR OFFICE USE ONLY
CONCLUSION: THEREFORE, IT WAS DETERMINED THE ZONING BOARD OF APPEALS
6cxlcUPHELD ( ) REVERSED THE ZONING ADMINISTRATOR'S PREVIOUS
DECISION.
CONDITIONS/STIPULATIONS: The following conditions and/or stipulations were adopted by resolution of
the Board as part of the action stated above:
aae Attached DeciGiOB.
tcxx)cFINDINGS & FACTS ATTACHED.
DATED: March 2. 2005
ZONING BOARD OF APPEALS
TOWN OF WAPPINGER, NEW YORK
BY~ rf~
(Chairman)
PRINT: Vie hI? t. PANtiE Le
"
"",.
TOWN OF WAPPINGER
ZONING BOARD OF APPEALS
DECISION ON INTERPRETATION APPLICATION NO. 04-7235
Applicants: RJA Holding Inc.
Premises: 51 Myers Corners Road
Tax Grid No. 6157-02-899988
By application dated July 30,2004, RJA Holding Inc. (hereinafter RJA) submitted
an application for interpretation from a written determination issued by the Zoning
Administrator, Tatiana Lukianoff, dated May 28, 2004, advising that section 240-37 of
the Town Code does not permit either professional or commercial office uses in a
residential district, and that the previous nonconforming use could only be changed to a
conforming use in accordance with section 240 ( c ) 3 of the Town Code.
PUBLIC HEARING
1. A Public Hearing on this application dated July 30,2004 was conducted on
January 11, 2005 and closed on that same date.
2. At said Public Hearing, testimony was provided by Robert Macho of RJA Holding
Inc., Salvatore Pace and Regina Pace, owners of property bordering the
premises which were the subject of the hearing.
3. Other evidence reviewed and considered from the hearing, from the historical file
of the premises kept by the Town of Wappinger, and from the attorneys
representing the applicant and Mr. And Mrs. Pace included:
a. July 12, 2004 consent for representation letter from RJA Holding Inc.
b. July 12, 2004 application for interpretation
c. August 24, 2004 supplement from Jon Adams, Esq.
d. August 31,2004 letter from Richard Cantor, Esq. to the Zoning
Administrator and Building Inspector.
e. September 13, 2004 letter from Jon Adams, Esq.
f. September 15, 2004 letter from Richard Cantor, Esq.
g. September 20,2004 submission by Richard Cantor, Esq.
h. A total of 16 photographs submitted by Richard Cantor, Esq.
i. April 8, 2003 transcript of Public Hearing
j. February 16, 1971 appeal no. 107 for interpretation by the Zoning Board
of Appeals
k. March 9, 1971 determination of appeal no. 107 by the Zoning Board of
Appeals
I. July 2, 1971 application for variance and determination by the Zoning
Board of Appeals
m. July 28, 1971 building permit
n. October 29, 1971 certificate of occupancy
o. July 27, 1972 building permit
FINDINGS
Based upon the information and evidence provided at the Public Hearing held on
January 11, 2005, and historical information from the town records referenced at the
hearing and documents submitted in support and opposition to the application, the
Zoning Board of Appeals makes the following findings:
1. The subject property is located at 51 Myers Corners Road on a .26 acre parcel in
an R-20 residential zone.
2. In 1971, by appeal No. 107, the prior owners obtained a determination by the
Zoning Board of Appeals regarding the change in use of the subject property
from a restaurant, a legally non-conforming use, to another legally non-
conforming use as "an office machine sales and service business," being a less
non-conforming use. This resolution was adopted March 9, 1971.
3. On or about July 2, 1971, a variance was granted by the Zoning Board of
Appeals to allow an expansion of the structure to allow for the provision of indoor
toilet facilities. In connection with that, a building permit was issued on July 28,
1971 to erect an addition to a "legally non-conforming commercial building." On
October 29, 1971, a certificate of occupancy was issued to the owner for its use
as a "legally non-conforming commercial building." On July 27, 1972, another
building permit was issued using the "legally non-conforming commercial
building" language.
4. The property has been in continuous use since March 9,1971 for the "sales of
office equipment and supplies" as its sole or principal use pursuant to a
determination at that time that such was a legally non-conforming use.
5. By application of RJA Holding Inc., the current record owner of the subject
property, an interpretation is sought to determine whether the use of the property
for a construction business office and a real estate office are permitted uses of
the premises or constitute a change of use.
6. Robert Macho is the President of RJA Holding Inc.
7. The building is being used as an office for a construction business and a real
estate office.
8. In addition to the main building, the premises also has two storage structures
behind the main building which are used for storing both maintenance equipment
and kitchen cabinets.
9. For certain periods of the month, kitchen cabinets, used in the construction of
residential homes, are stored on the premises awaiting delivery to another
location on at least a weekly basis. A tractor trailer delivers the kitchen cabinets
periodically to the subject premises, which are then delivered by a box truck
elsewhere, and which box truck is apparently kept on the premises.
10. A violation on the part of the applicant existed during the pendency of this
application alleging the unlawful building or repair of the subject premises without
a permit pursuant to the Town of Wappinger Code section 122-9 which has since
been resolved by due process of law.
11. NYCRR Section 617.5 ( c ) ( 31) [SEQRA], defining Type /I actions, specifically
excludes "interpreting an existing code, rule or regulation" from environmental
review, nor does any segmentation exist of the environmental review process.
DECISION
1. This Board is of the opinion that the use of the premises for a construction
business office and real estate office, and the storage of kitchen cabinets
constitutes a new nonconforming use from that which originally existed since
1971.
2. The determination that the change from a restaurant to "an office machine sales
and service business" as a less non-conforming use does not contemplate the
current uses.
3. The issuance of two building permits and a certificate of occupancy shortly after
the 1971 determination, and all issued no later than 1972, did not enlarge or
diminish the legal nonconforming use simply because language was used by a
particular department to describe the building as "commerciaL" No broad use for
all commercial purposes was ever granted as a prior variance or determination
by the Zoning Board of Appeals.
4. Offices for the sale of real estate and for a construction business are significantly
different from the sales of office machines or servicing of such machines in this
situation. The premises are being used more closely as professional offices. The
sales of land and construction services performed elsewhere are not analogous
to retail sales. Simply because the prior and current uses involve "sales" does
not mean that they are all qualitatively the same, although all commerce involves
buying and selling.
5. In addition, there is a significant amount of storage taking place in connection
with the kitchen cabinets used for the construction company's residential
construction business.
6. The Town of Wappinger Code also reflects the qualitative differences in its
Schedule of Use Regulations which, under schedule 240 Attachment 2,
separately categorizes "Office," "Retail," and "Warehouse and Storage."
Section 240-5 includes a definition of "Professional Office" to include one used
by a real estate broker or salesman. The schedule of uses includes professional
offices. Under the schedule, retail includes stores and shops for the conduct of
retail business. There is a distinguishable change in use between the current
occupants and the prior occupants of the property. In addition, storage by
contractors is addressed as a warehouse use, also separate from the other
stated uses. The property in question is regularly used for storage of kitchen
cabinets on a weekly basis.
7. With regard to the dimensions of the subject property being substandard,
testimony revealed that the subject property, while owned by RJA Holding Inc.,
borders upon property owned by Tree Line Builders, so it does not appear that
the properties are owned by the same record owner. However, even if it were,
this objection is not relevant for our purposes here, which in any case would be
..
addressed by section 240-18 of the Town Code, requiring the same owner of the
subject property and the contiguous lot owned to combine them as necessary to
form a conforming lot of the subject property, and such is not a condition
precedent in issuing our interpretation.
8. The existence of a building code violation did not preclude the Zoning Board of
Appeals from hearing this appeal. Section 240-12 of the Town Code precludes a
permit of any type to be issued, processed, or approved by the Town until such
violation is cleared and removed to the satisfaction of the appropriate Town
agency or resolved by due legal process. However, the issue before this board
is one of providing an interpretation, not the granting of a permit or an approval
as contemplated by section 240-12, so there is no conflict concerning the
rendering of this determination with this section of the code. In addition, that
violation has been addressed and concluded by due process of law.
9. This Board determines that the use of the premises as a construction sales office
and real estate office, and the storage of kitchen cabinets upon the property is
not a continuation of the nonconforming permitted use of the building.
THEREFORE, BE IT RESOLVED, that it is the determination of the Town of
Wappinger Zoning Board of Appeals that the current use of the present uses of the
property is not a continuation of the prior legal nonconforming use and is not permitted.
Appeal No. 04-7235 is hereby denied, and the decision of the Zoning Administrator,
dated May 28, 2004, for the reasons stated herein, is affirmed.
The question of the adoption of the foregoing Decision was duly put to a vote on
roll call, which resulted as follows:
Victor Fanuele, Chairman voting Nay
Howard Prager, Member voting Aye
Douglas Warren, Member voting Aye
Thomas DellaCorte, Member voting Aye
Jennifer McEvoy-Riley, Member voting N..y
Dated:
March 2,2005
Wappingers Falls, New York
JM;: ;/ ~~
Victor Fanuele, Chairman
Zoning Board of Appeals, Town of Wappinger
. -m'd
t,".. ,
Gel'd
I . d
~96
July 12, 2004
c[:91 p00c-pl-lnr
RJA Holding, Inc. gives consent to CORBALL Y, GARTLAND &
RAPPLEYEA, LLP to act in its behalf as its representative regarding the application
made to Zoning Board of the Town of Wappinger concerning property at 51 Myers
Comers Road.
RJAHOldi~~..~I..n..c :>'." -
.-:;:;7 . ../.. 0"...a
~ ~/ --~
Bb"..l Macho, Presid ..
dde~ ~ puetl~ Rlleq~OJ
91 :8t t130Z-n-T)f
dSI :80 1:00 1:01 Inr
.~L-26-2004 16:26
Corbally Gartland & Rapp
P.02
TOWN OF WAPPINGER
ZONf\lG ADMINI$l1IATOR
TATIANA LUKIANOFF
'\ WI'. pp/
o , 1-(.'
,....~.-. .~
g' ~
;...
- ---,- >-
o,,-~-- ~
c. ..,
.... '"'
c' "'-
~ ~
f'ss co"':>
sUl'EfMSOA
JOSEPH RUGGIERO
ZONING OEPARTMENT
20 MIDCLEBUSH ROAD
WAPPINGERS FAU...S; NY 1258C).(1324
(846) 2Jl7.ffl51
FAX: (845) 297-4558
TO\'IIN COUNCIL
VINCENT BETTINA
MAUREEN MclCARTliY
JOSEPH P. PAOLONI
ROBERT L. VALOAn
May 28,2004
Mr. Robert Macho
Tree LiDc Builders
S9 Poiot Street
WappiDprs FaDs, New York 12590
RE: 51 Myen CorRea Read
W~F.NewYork
Tax Grid 1# 6157-02-899988 R-20 Zcming District
Dea Mr. Macho,
The cOde of the Town ofWappiDger, Seetion 240-37, District ReguIItiodS aDd Schedule
of Use ReguJIlioDs, does DOt permit eitber profr:ssioDa1 or ~~ otiice uses in a
~ distrlet. The 0Dly ~is where a pro&ssioDal oflice is part of a resideuce
aDd 1bat particular situation would also requizc a Special Use Permit. In this particular
pt_ the previous use was a~~ ODe 8Dd Seetioo 240-16(c)3 of the abow
lda~ Code states tIIIl Q PI01I-COnforming u.N of a buI/di1Ig may be chtmged orrly to
a <<>>forming use. .
You IDlY appeal this ~.ninAtWD. to the ZoDiDg Boatd of Appeals witbiIl60 days of the
date of this letter.
cc: ZoDiDg Boanl of Appeals Members
Mr. Marco CavigJia, Bsq.
Mr. George A IColb, BuiktiDg 1DIIpeetoD"
file
~
~ i
IX '~
o \/ OO~@~O\Yl~@)
o.....~ JUL 2 7 2004
C). ZONIN. '..' .; '~.1 hATOR
TOWI\- .jF WAPPINGER
TOTAL P. 02
. .
, ,'"
Addendum to Appeal
RJA Holding, Inc. appeals as an aggrieved person from the May 23,2004
determination of the zoning administrator that is present use of the building at 51 Myers
Comers road is not a permitted use. RJA is the owner of the parcel.
The premises at 51 Myers Comers road is currently occupied by a tenant, Tree
Line Builders Inc., which engages in the commercial sale of personal residences.
Prospective home owners visit the office to inspect renderings, plans and specifications
for residential homes and to discuss transactions with the owner. One employee is
present to handle telephone and other inquires from customers. T he building has not
been structurally altered from its prior use by Hettinger or from the time it was first
constructed. The commercial character of use of the building remains the same. As
reflected by a prior decision and order of the Zoning Board dated May 13,2003, a
change of use under section .ofthe zoning law of the Town of Wappinger is permitted
when the character of the usee in this instance, commercial) remains the same,
irrespective of a change in the identity of the owner of the land or the occupant of the
building.
Section 240-5 of the zoning law(definitions) also warrants a finding that the commercial
use has not been changed. It defines "use" alternatively, with one definition being the
use for which a building was designed. There has previously been ample testimony
before the members of this board of the history ofthe building made by persons with
knowledge of that history, i.e., it was designed and used as a commercial building. The
building was first constructed as restaurant before the adoption of zoning. Subsequent to
the adoption of zoning, and while the premises was zoned residential, it was permitted to
be changed in 1971 to another commercial use, to a store for business supplies, which
an incidental business machine repair activity. Offices of the commercial activity were
located in the same building. Thereafter, as stated above, the premises was authorized to
be changed to a floral shop. This action is consistent with the definition of use in 9 240-
5 and the provisions of 9240-16(c)(3).
Instructive for the board are the circumstances in Prudence v. Town of Ithaca Zoning
Board of Appeals, 195 AD2d 662. The parcel had a commercial building constructed
before zoning. It was used in sequence by a garden supply store, a vending machine
concern, an egg processing concern, an antique garage, a bus garage, a food distribution
Page 1 of 2
use and a warehouse. The court characterized all these uses as commercial uses taking
place in a commercial facility. The circumstances of the use of the commercial building
at 51 Myers Comers Road is analgous.
The rules of construction associated with a zoning law require the foregoing conclusion.
As zoning laws are in derogation of the free use of land, zoning laws must be construed
against a municipality and in favor of the property owner. Similarly, the board is bound
by precedent established by it. The current commercial use is permitted.
Page 2 of 2
~
RESOLUTION
At aregular meeting of the Zoning Board of Appeals of the Town of Wappinger,
Dutchess County, New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls, New
York, on the 12th day of August, 2003, at 7:30P.M.
The meeting was called to order by Alan Lehigh, ChaiIman, and upon roll being ca1l~d,
the following were present:
PRESENT: Cha;"TUID
~~~
.MeIIibers
ll&\1r~ P-~
{,crald diPiemo
Douglas Warren
Victor Fanuele
ABSENT:
~ ~ollowing Resolution was in~duced by ffi .itA~
~ . j,{1/JA/J~
and seconded by
WHEREAS, 'by Application dat~ March 7, 2003, H&B Office Products, Inc.
{hereinafter referred to as '"HB'J and FemwoodFloral Gardens (hereinafter referred to as
'PERN\VOOD'') made an application for an interpretation from a written determination made by
the Zoning Administrator dated MarCh 7., 2003; and
WHEREAS, by De,cision dated J~:f~yl~~_2003,.the Zoning Board of Appeals made a
determination that the premises occupied by HB of 51 MJ'C?IS Comers I;toad, Wappingers Falls,
New York could be used by FERNWOOD for the re,tail sales at florist products as.a continuation
of the non-confonningpennitted use of the building for retail sales; and
, O:\WIV'PINGE\ZBA\Hetlinger-lnterpre1ation\Resolution.doc
G'd
dSS:l.O VO .po un["
',' .
WHEREAS, by Notice of Petition and Petition dated May 30, 2003, Salvatore Pace and
Regina Pace made Application to the Supreme Court, State of New York. County of Dutchess,
seeking a judgment nullifying and invalidating the aforementioned Decision; and
WHEREAS, it bas been reported that FERNWOOD bas indicated it no longer intends to
occupy 51 Myers Comers Road to use same for retail sale of florist products; and
WHEREAS, it has been det~rmined that HB has contracted to sell the subject property to
be developed and used for single f~ily residential pUIposes.
NOW, THEREFORE, BE IT RESOLVED, as follows:
1. The recitations above set forth are incoIporated in this Resolution as if fully set
forth and adopted herein.
2. The Zoning Board of Appeals hereby rescinds. WITHOUT PREJUDICE, its
~
Decision on InteIpretation Application dated May 13, 2003 in connection with the property
owned by HB and located at 51 Myers Comers Road, Wappingers FaIls, New York, a copy of
said Decision is attached hereto 'marked and designated Exhibit "A,...
3. The Zoning Board of Appeals hereby authorizes and directs Attorney to the
Town, AlbertP-. Roberts, to take whatever steps are necessmy to discontinue the Article 78
Proceeding commenced by Salvatore Pace and Regina Pace by Notice of Petition and Petition
dated May 30, 2003. WITHOUT PREJUDICE. to the rights of either the Petitioners or the
Respondents.
4. The Zoning Board of Appeals further determines that this action in rescinding its
Decision, WITHOUT PREJUDICE, is a Type n action under State Environmental. Quality
Review Act (SEQRA) and accordingly, requires no environmental review as a'precoJ;1dition to
making its determination hereunder.
O:\WA?PINGE\ZBA\Hettlnger-lntetpretation\Resolution.doc:
e"d
dSS:L,O ...0 ...0 unr
The foregoing was put to a vote which resulted as follows:
~4/.
~.
r;.
illt-e ·
ALAN LEHIGH, Chairman
Voting
HOWARD PRAGER, Member
Voting
GERALD diPIERNO, Member
Voting
DOUGLAS WARREN, Member
Voting
VICTOR FANUELE, Member
.-
Voting
Dated: WappingersFalls, New York
August 12,2003
The .Resolution is hereby duly declared adopted.
~~C#fr~~~.
STATE OF NEW YORK,. I..:
COUNTY OF DUTCHESS, _
TOWN OF WAPPINGER.
I, GLORIA J. MORSE, Town Clerk of the Town of Wappinger. N.Y.. do hereby certify mat I have compared the
foregoing copy of a Resolution adopted by the Zoning Board of Appeals on August l~f 2003,
rescinding, without prejudice, their dec1sio~ on the Bettinger/Fernwood Interpretat1on~
--- ---withtJie <<ijUial-recorcl-menot' DCVI rernaiiiiiigoDlir~ orof recorenn-diiSOlfic:e ---- -
aDd have found the nme to be a ~rrect tr:u1Scnpt tbc:refrom ~d ~ whole 01-
such ori~ record. .
IN TESTIMONY WHEREOF, I have hereunto set my hand, Uld ~1fixed my
seal of office, thU !:3 day of C1.t~ . 20Q..3,
, Town Cler~
By ...5 ~ c:.- ~:....t ~uty Clerk
I
O:\WAPP'NGE\ZBA":IeWnger.lnlllrpreta~\ReSOlutlon.doc
v.d
dSS:LO vO vO unr
'.
'.
TOWN OF WAPPINGER
ZONING BOARD OF APPEALS
DECISION ON INTERPRETATION APPLICATION
Applicants: H&B Office Products, Inc. and F emwood Floral Gardens
Premises: 51 Myers Comers Road
Tax Grid No.: 6157-02-899988
By Application dated ~h 7.2003. H&B Office Products, Inc. (hereinafter referred
.. ..-'
to as 'mj and Femwood Floral Gardens (hereinafter referred to as "Femwoodn) submitted
an lntezpretationApplication from a written detenniDation made by Zoning Administrator,
Tatiana Lukiano~ dated March 7, 2003.
Helen Hettinger, an officer ofHB, had previo~ requested a determination from the
Zoning.~, Tatiana Lukianoft that the proposed use of the above premises for
sales and service of florist produc13 was a cODtin.uat;ion of the curreut use of the premises for
sales and sezvice of office products.
20ning Administrator Lukianotl; by letter dated March 7; 2003, in response to the
iIlquiIy ftom HelenEettinger, stated that "the proposed use.is not one permitted in a
'residentiaI.zone'" .and referred to the Town ofWappinger2oning Code 9240-16(c)(3) which
states 1hata'~on-conforming use of a building may be changed only to a confomring use".
O:\WAPPINGE\ZBA\HeWnger-lnterpretation\Oecision - Approval.COC
Sod
dnn:An en en unr-
. . ~..
Socl
PUBUC HEARING
A. A Public Hearing on this Application was conducted on April 8, 2003, which
was adjoumed to April 22, 2003 and closed on May 13, 2003.
B. At the Apri122, 2003 Public Hearing, HelenRettinger ofRE provided
testimony on behalf of the Applicants. In addition, she produced various documentation
.
pursuant to subpoena duces te~ requested by Richard Cantor on behalf of a neighboring
property. - ChlliTmlm Alan Lebi8h identified a list of the evidence presented which includes
the following:
1. March 7,2003 -letter from Mr. Adams to Zoning Board of Appeals
2. March 10,2003 -letter from Mr. Cantor's office to Zoning Board of Appeals .
3. March 11,2003 - letter from Mr. Roberts' office to Zoning Board of Appeals
. -
4. March 14, 2003 -letter from Mr. Roberts' office to ~g Board of Appeals
5. March 17,2003 - letter from Mr. Roberts' office to ZoDing Board of Appeals
6. March31,2oo3-1etter fromMr. Cantor's office to Zoning Board of Appeals
7. .April3~ 2003 - Zoning Administrator Interpretation Appeal
8. April7.,2002-1ettcrftomMr. RobertS' office to Zoning Board of Appeals
9. April 8,2003 -letter from Mr.. Cantor's office to Zoning Board of Appeals
10. April 1 0, 2003 -letter ftom Mr. Roberts" office to Zoning Board of Appeals
. .
11. April 11, 2003 -letter from Mr. Cantor's office to Zoning Board of Appeals
12. Apri111, 2003 -letter from Mr. Roberts' office to Richard Cantor and Jon
Adams
13. April 22, 2003 -letter from Mr. Cantor's office to ZOning Board of Appeals
14. Federal Income Tax FOImS ofEE
15. Telephone Statements for Em
2
O:\WAPPINGE\ZBA\Hellfnger.lnlerpretaliCll\Oecision . Approval.DOC
, ..
", .
cloo:ao vO va unr
16. New Yorlc State Sales Tax Income Statement ofHB
17. Certificate of Occupancy and Variance for HE
18. DeedforRB Hettinger. Inc. dated July 17,1975.
3
O:\WAPPINGE\ZBA\HetUnger-lnterpl'etallon\Oecislon . Apprcval.OOC
l..-d
'.
. . .
doo:ao vO vO unr
'.
FINDINGS
Based upon information and evidence provided at the Public Hearings, the Zoning
Board of Appeals makes the following findings:
1. The premises in question is located at 51 Myers Comers Road on a 0.26 acre .
parcel in a R-20 residential zone.
2.
The property has been used for at least 32 yearS for sales of office equiPment
and supplies.
3.
Applicant lIB, through testimony provided by Helen Hettinger, has indicated
that BB has negotiated the sale of the existing premises presently occupied ~y "HB to
Femwood'~ :Femwood seeks to operateitsrctail sales offloristproducts:from this site.
4. By joint Application dated March 7, 2003, HB and Femwood requested to the . . .
Town of Wappinger Zoning Board of Appeals to inteIprct and decide whether the proposed
use of the building by F emwood for retail sales of florist products is a pemritted use of the
premises or constitutes a Change of use.
s. . Testimony revealed that Helen Hettinger is an officer oiHB and has standing
10 representthe coIporate application oiHB.
6. On.ApriI22,2003, 'HelenHettinger1estified on behalf oithe applicants that
she was present for a Town of Wappinger Zoning Board of Appeals meeting in 1971 at which
time a variance was issued for the subject premises "to change Normandy Farm [restaurantJ to
a. H&B Office Isupplies]. It was changed and it was legal" according to Mrs. Hettinger.
7. A variance was granted on July.1, 1971 and a Certificate ~f Occupancy was
issued as a result thereof "for use' as a legally non-conforming commercial building" with
I"CSI?ect to the,:premises at issue. The Building Per.mit ftnther characterized the premises as a
"legally non-conforming commercial building" ~ '
4
O:\WAPPINGE\ZBA\Hetllnger-lnterpret3tlon\Oecis1on . Approval.oOC
Bod
dOO:BO ?O ?O unr
, . .
. .
8. This Interpretation Application is exempt from enviromnental review pursuant
to NYCRR ~617.5(c)(31) (SEQRA) as it is properly classified as a Type IT action.
9. The Zoning Board of Appeals finds that testimony of Mr. Rocco Trenkle
provided on April 8. 2003 helpful in its detennination of the following facts:
A The premises appearance or stIUcture will not change as of the use
proposed by the applicants;
B. There iSiiO" eXPected significant change with respect to the
occupants or clientele that would be conc1ncting their business at the
,premises;
c. The essential character of the prior use of a "legally non-conforming
commercial building", as it is characterized according to the
variance grmted to the property on July 2, 1971. has not changed;
___D.
The essential character of the property as a commercial. building will
not change by substituting floral products for office products;
E. A variance for a legally non-conforming commercial building was
issued onJuIy 7,1971 which r:uns with the land;
F. '.the ,proposed use is incident to the prior use of the premises as a
legally non-confomrlng commercial building engaging in retail sales
of caDSUmCI' products.
5
O:\WAPPINGEIZBA\Hetllnger-lnterpretatlOlllOecision - Approval.DOC
S.d
dOO:BO ~o ~o unr
DECISION
10. The ZBA is of the opinion that the use of the premises for the sale and service
of qffice products is essentially the same as if the premises were used for the retail sale and
service of florist products. The predominant use of the premises for the last 32 years while
occup~ed by HB was sales and service of office business equipment and supplies. Throughout '
this period, the predominant use ofth.e premises was for retail sales.
-1.'1. This Board note~c Applicant HB had previously received a variance for
a "commercial building" and on October 29, 1971 subsequently received a CIO for ''use ~ a
legally non-confomring commercial bm1ning".
12. The ,ZBA notes the Town's Zoning Code no longer simply refers to.
"commercial" uscs. The current Zoning Code categorizes uses as either "residential" or"non- . ..
residenrlal". Retail uses are pemritted in RB, HM, MB, GB, ee, se, HO, and ED Districts_
"Service" uses are permitted in the same Districts. R.etailsales of office equipment or florist
products are not separately identified in the Zoning Ordinance -: although "copy centers" are
referenced under the category of ' 'service". The ZBA also noteS there is no de:Jinition of the
texm'''retail''witbin the Zoning Code. The ZBA references the above pennitted uses for non-
residential districts only as a guide for what may be pennitted in non-residential districts.
13. The ZBA detemrines that since HE has obtained a variance for a "legally non-
conforming commercial building" ,and since the demonst:ra.ted principle use of the pre~es by
HE 'was that of retail sales and service business, it is our Decision that the use of the premises
for retail sales offlorist products is a continuation of the non-confoxming permittea. use of the
building for retail sales.
6
O:\WAF'PINGE\ZBA\Hetlinger-lntelpretation\Cecision - Approval.DOC
at-a
ato:ao 70 70 unr
.
, . .
. '
. THEREFORE, BE IT RESOLVED, that it is the determination of the Town of
Wappinger ZBA that the change in use requested by the Applicants is in effect a continuation
of the use of the property for retail sales and is a pemritted use under the Town of Wappinger
Zoning Code. Accordingly, Appeal No. 03-7161 ,is hereby approved and the decision of the .
Zoning Administrator dated March 7, 2003 is hereby overruled
The question of the adoption of the foregoing Decision-was duly put to. a vote on roll
call, whi~ resulted as follows:-"==- .
I .Alan Lehigh, (b,!innaD. voting
,
,
,
"
Gerald diPiemo, Member voting
'Douglas Warren, Member voting
Howard Prager, Member voting
Victor Fimue1e, Member voting
Dated: May 13, 2003
Wappingers Falls, New York
Alan Lehigh, Cb~iTman
.zoning :Soard of Appeals, Town of Wappinger
O:\WAPPINGE.\ZBA\Hetl:inger-lnterpretaticn\OeClSlon - Approval.DOC
It'd
7
dlo:ao va va unr
.
~RBALLY ~ARTLANDANI~LEYEA LLP
CHARLES J. CORRALLY (1966)
jOHO-; J. GARTLA"D, JR.
ALLAN E. RAPPLEYEA
JON HennEN ADAMS
MICHAEL G. GARTLAND
V!NCENT L. DEBIASE
PAl:L O. SLLLlVA" (a/soFL)
WILLIAM F. BO(:;LE, JR.
RENA MUCKENHOUPT O'CONNOR
ALLAN B. RAPPLEYEA (a/soCT)
A,THONY C. CARLI"I, JR. (a/soN])
LEAH J. BALASSONE
AN)''';UJA SHAH
A HERITAGE OF LEGAL COLNSEL
Regional Offices
30 FRO:-'; T ST
PO Box 679
MILLRRlJUK, NY 12545
845-677.5539 TEL
845-677.6297 fAX
BARDAVD~ BUILDING
35 MARKET STREET
POUGHKEEPSIE, NY 12601.3285
845-454-1110 TEL. 845-454-4857 FAX
E-MAIL: info@cgrlaw.com
WWW.CGRLAW.COM
6425 Mo\:n:;oMERY ST
PO Box 300
RHINEREC:K, NY 12S72
845870.4091 TEL
845.K767192 ['AX
Of Counsel
MILTON M. HAVEN
CARL P. ULRICH
RICHARD V. CORRALLY
Adrninistrator
CAROL AN\; NEVILLE
By ApPOINTMENT:
CLEARWATER, ~LOR[DA 34617
727.401.3144 TEL
July 15,2004
Barbara Roberti
Town ofWappingers
Town Hall
20 Middlebush Road
Wappingers Falls NY 12590
[ffi[g@[gDW[gill)
JUL 1 6 2004
Re:
RJA Holding, Inc.
ZONING ADMINISTRATOR
TOWN OF WAPPINGER
Dear Barbara:
Enclosed please find the interpretation application, along with filing fee.
If you have any questions, please call. Thank you.
Very truly yours,
CORBALL Y, GARTLAND AND RAPPLEYEA, LLP
BY:
JHA:jh