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07-7340 i TOWN OF WAPPINGER SUPERVISOR CHRISTOPHER J. COLSEY ZONING BOARD OF APPEALS 20 MIDDLEBUSH ROAD WAPPINGERS FALLS, NY 12590 (845) 297-1373 TOWN COUNCIL WILLIAM H. BEALE VINCENT BETTINA MAUREEN McCARTHY JOSEPH P. PAOLONI To: Chris Masterson / Town Clerk ~ Barbara Roberti, secrela.I)\~ Town of Wappinger Zonin~ Board of Appeals \ RECE\\IEO jUN 0 ? 2008 TOWN CLERK May 19,2008 From: Re: Moody Decision Appeal No. 07-7340 Attached you will find the original ApplicationIDecision & Order for Brian & Irene Moody, 29 Middlebush Road, Wappinger Falls, NY., Tax Grid No. 6157-01-394824. I would appreciate it if you would file these documents. Attachments cc: Mr. & Mrs. Moody Mr. John Sarcone Zoning Board Town File Town Attorney Building Inspector ~ WAPp/ ~Q' '.:'" .....1'" .;,.~ ........,(f' ..- . ~ o ' ,... ~ o ~?i S0~" ~,~ ~:SS CO~ Town of Wappinger P.O. Box 324 - 20 Mldd I ebush Road Wapplngers Falls, NY 12590 Zoning Board of Appeals Office: 845.297.1373... Fax: 845.297.4558 ZOning Enforcement OffIcer Office: 845.297.6257 www.townofwapplnger.us Application for a Use Variance Appeal # o 1 ~ 1340 Dated: March 8, 2007 TO THE ZONING BOARD OF APPEALS, TOWN OF WAPPINGER, NEW YORK: I (We) Brian & Irene Moody residir!!U~t287 Middlebush Road' Wappirlger Falls, NY 12590 , ~- 29:1 1323 (phone), hereby appeal to the Zoning Board of Appeals from the decision/action of the Zoning Administrator, dated Feb. 22 , 2002, and do hereby apply for a use variance. Premises located at 29 Middlebush ReI. Tax Grid # 6157-01-394824-00 Zoning District R-20/40 1. Record Owner of Property Brian & Irene Moody Address SAME AS ABOVE Phone Number _- _- Owner Consent: Dated: Signature: Printed: 2. Variance Request: I(We) hereby apply to the Zoning Board of Appeals for a variance of the following requirements of the Zoning Code. Article VI, section 240-37 I Schedule of Use Regulations-Residential District (Indicate Article, Section, Subsection and Paragraph) Intended use, alteration, conversion and/or construction (Describe proposed project) Continuance of pre-existinq leqal nonconform1l1q use as a twin-family residence where only sil'\gle-family residences are a permitted prindJ?'l llRP_ TOW024.ZBA-AUV (4-03 Rev) 1 114 Town of Wappinger Zoning Board of Appeals Use Variance Application Appeal No. 3. Reason For Appeal (Please substantiate the request by answering the following questions In detail. Use extra sheet, If necessary): A. Are you able to make reasonable economic use of your property without a variance? Please set forth detailed financial evidence describing. SEE ADDmDUM B. Is your property unique in the neighborhood that needs this type of a variance? Please explain your answer in detail. . SEE ADDENDUM C. If your variance is granted, will it change the kind of neighborhood In which your property is located? Please explain your answer In detail. . . SEE ADD~ D. How did your need for a variance come about? Is your difficulty self created? Please explain your answer In detail. SEE ADDENDUM 4. List of attachments (Check applicable Information) (>> Financial (economic) statement. This statement should not be personal in nature. The information provided should relate directly to the property for which you are seeking a variance and should illustrate the monetary injury or undue hardship you are suffering without the variance. ex) Survey Dated , Last Revised Prepared by Raymond J. Kihlmire, LS, J?C and ex) Photos ex) Drawings Dated ex) Letter of Communication which resulted in application to the ZBA. (e.g., recommendation from the Planning Board/Zoning Denial) Letter from George A. Kolb, Jr. Dated: Feb, 22, 2007 TOW02.<1.ZBA-AUV (4-03 Rev) 2m'.<I Letter from Dated: Town of Wappinger Zoning Board of Appeals Use Variance Application Appeal No. (x) Other (please list): SEE l\1"1'ACSED EXHIBIT lIST 5. Signature and Verification Please be advised that no application can be deemed complete unless signed below. at all informatIon given Is accurate as of the date of application. DATED: o /;~1r)7 . SIGNATURE (If more than one Appellant) DATED: FOR OFFICE USE ONLY A. The appellant ( ) IS ( ) IS NOT able to make reasonable economic returns on the property without a variance for each permitted use within this zonIng district. B. The appellant's property ( ) IS ( ) IS NOT unique In the neighborhood ~hat needs this type of a variance. C. If the variance is granted, ( ) IT WILL ( ) IT WILL NOT change the kind of neighborhood In which the property is located. D. Is your difficulty self created? Please explain your answer In detail. TOWD24.ZBA-AUV (4-03 Rev) 3 cK 4 Town of Wappinger Zoning Board of Appeals Use Variance Application Appeal No. Conclusion: Therefore, it was determined the requested variance Be .( X) GRANTED () DENIED. Conditions/Stipulations: The following conditions and/or stipulations were adopted by resolution of the Board as part of the action stated above: The ZEA has voted to zrant the attached Use Variance. Please ref~rto at~acn~d f;n~;ngq ~n~ ~p~iqinn (X) Findings & Facts Attached. DATED: May }9, 2008 ZONING BOARD OF APPEALS TOWN OF APPINGER, NE BY: I!;:.Chairm~ PRINT:' +tiel>' Jt.k<[ L- TOW024.ZBA-AUV (4-03 Rev) 4 rI 4 ADDENDUM Item 3. Reason For ADDeal A. Are you able to make reasonable economic use of your property without a variance? Applicants' Property has for many years been a pre-existing, legal nonconforming mixed use property, used as a two-family dwelling with commercial ~se on the ground floor. Despite the pre-existing, legal nonconforming status of the structure, the Applicants are requesting this use variance to bring the two-family use into conformance, so that the Town will not require them to convert the long-standing use to a single-family residence. As the appraisal (Exhibit "D") indicates, the value as a single-family home would be $290,000. As a two-family home without the commercial component, the value would be $310,000. The value of the Property as a mixed use is $335,000. In addition, it would be a significant expense to convert the two..family residence into a single-family residence. Pursuant to an estimate obtained from B. Smith & Company, a general contractor, the cost would be approximately $58,200.00. Thus, the Applicants would not only lose value on their Property without the variance, but would have to expend substantial funds to convert the residence to a conforming use. B. Is your property unique in the neighborhood that needs this type ofvariance? If the Applicants are required to convert the pre-existing, legal nonconforming Property to a single-family residence, the Property would be entirely incongruous with the surrounding neighborhood. As the photographs in Exhibit "0" clearly demonstrate, the neighborhood is a primarily highway commercial neighborhood. Accordingly, the Property is uniquely situated and requires the requested use variance. c. If your variance is granted, will it change the kind of neighborhood in which your property is located? The neighborhood would not change if the requested use variance is granted. The Property has been mixed use commercial and two-family residential since long before the Applicants acquired the Property in 1991. In fact, the Property is listed on the Town's tax rolls as a "nonhomestead" parcel. (Exhibit "H"). In addition, the Multiple Listing Service data sheet for the Property indicates that the parcel is "nonhomestead" and a "converted residence" parcel. (Exhibit "I"). D. How did your need for a variance come about? Is your difficulty self created? The difficulty is not self created. As stated in Section C, supra, the Property is a pre-existing, legal nonconforming use, and has been a mixed use commercial and two-family residential parcel since long before the Applicants purchased the Property in 1991, and the Town's tax rolls classify the Property as a "nonhomestead" parcel. (Exhibit "H"). The Town has directed the Applicants to bring the Property into conformity by requesting a use variance, despite the Applicants' position that the present use of the Property constitutes a pre-existing, legal nonconforming use. Item 4. List of Attachments (Other) Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I Fax. from George A. Kolb, Jr., Building Inspector, to John A. Sarcone, III, Esq., dated February 22, 2007 Letter from John A. Sarcone, III, Esq. to George Kolb, Building Inspector, dated February 21, 2007 Letter from John A. Sarcone, III, Esq. to Marco Caviglia, Esq., dated February 23, 2007 Appraisal of 29 Middlebush Road, Wappingers Falls, NY 12590, prepared by Valuation Consultants, Inc., dated MfJ....l'Gh. ~ (LOO~ . Estimate for Converting Two Family Dwelling into a Single Family Dwelling, prepared by B. Smith & Company, dated March 6, 2007 Survey, prepared by Raymond J. Kihlmire, LS, PC Photographs of the structure and surrounding neighborhood Tax Statement and Receipt Multiple Listing Service data sheet I I I~ -',.." '\,JUI'~ L-I""lYV I .....".1 [ -'&cT 10 ~ J 617.20 APPENDIX C STATE ENVIRONMENTAL QUALllY REVIew SHORTENWRONMENTALASSESSMENTFORM to, UNLISTED ACnONS On~ ( To be completed by A pllcant Of' ProJect Sponsor) 2. PROJECT NAME APPLICATION FOR USE VARIANCE PART 1 · PROJECT INFORMAnON 1. APPUCANT I sPONSOR BRIAN & IRENE MOODY 3.PROJECT I.OCATION: ~ WAPPINGERS FALLS OUTCaESS ... F'R~ISE l..OCATIVN: Street Addess and Reed In.meCCiona, Pramlr1ent Iandmarka' elc. or Dfovlde ~ao r...oc:. tJ.:JltJ.:J SEQR t==- 5. IS PROPOSED ACTION; 00 New 0 ~Ian O~t11Il alteration 8. D6SCRIBE PROJECT BRIIiFl. Y: . Continue pre-existing leg~l non-conforming use as a two-family residence where only single-famfi~ residences are a permitted principal use and that the tWi~- family ~re-exi$tin~ legal non-conforming use d~es not meet the min~mum square footage for twin-family use. . . , . 7. AMOUNT, OF' LAND .AFFECTeD: , Inhlally ..50 8enl8 U1~' .50 acrea 8. WILL P~OPOSED ACTION COMF'L Y WITH exiSTING mNING OR OT11ER ReSTRICTIONS? o Yea [!J No If Ill), dCllCribo brlelly: Pre-existing legal ~on-conforming USe dating prior ~o goning. 9. WHAT IS PRESENT lo.AND USE IN VICINITY OF PROJECT? (ChooseaamanyesappJy.) o Aesldenllal 0 Jnc~al DCclmmerclal OAg/1cuJlure 0 Park I Fo~ I Open Spaoo Two-family and commercial use prior to ~oning. [!J other (deseribo) 10. DOES AC:rJON IN\IOLve A PERMIT APPROVAl., OR FuNDING. NOW OR ULTIMATEL V FROM, ANY OTHER GOVERNMENTAL AGENCY (Federal. State or Local) Dves [!J No . If Y". list agency name and parm/t I apProval: 11. DOES ANY ASPECT OF THE ACTION HAVE ^ CURRENTLY VALID PERMIT OR APPROVAL? o VG8 f!J No It' yes, list agency name and pennft I appl\Mll: l.T OF PROPOSED ACTION WILL EXISTING PSRMIT I APPROVAL RE;QUlRE MODIFICATION? No CERTIFY THAT THE INFORMATION PROvIDED ABOVE IS TRUe TO THE BeST OF MY ICNOWL&:DGE ApPlicant I Sp Oale: 4/23/08 f the action Is I Costal Area. and you 81'8 a state agency. complete the Coastal Assessment ttorm before proceeding with this aSsessment TOWN OF WAPPINGER ZONING BOARD OF APPEALS APPLICATION FOR A USE VARIANCE FINDINGS & DECISION Appeal No. Application Date: Applica.nt Premises Located at: Tax Grid No.: Zoning District(s): Record Owner of Property: . . Variance of Code Sections: 07-07340 . March 8~ 2007 Brian & Irene Moody 29 Middlebush Road 6157-01-394824-0000 R-20/R-40 Brian & Irene Moody . ~ 240-37 (District Regulations) . . Description of the Premises & Prooosed Variance The premises that is the subject of this application is a mix~d 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 Assessorindicate 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 l~~t 1960. The commercial uses were taxi service, day care center and now a" communications business. The applicant seeks a use vari~ce 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-m deciding issue is one of local concern 6) Short Form EAF. " Public Hearin2 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 'gwded 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 appe~s 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) truit 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 The Applicant has provided ample fmancial 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 i~ the . neighborhood. '" . . Chan2e in Character of the Nei2hborhood 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 commercialqse 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 rmding 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 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.