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08-7365 . 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 May 19,2008 RECEIVED '.1 20f!x JUN 0.- J..~ TOWN CLERK To: Chris Masterson Town Clerk From: Barbara Roberti, secretary'?;) Town of Wappinger Zoning ~d 'or-Appeals Re: StongatelBerta Decision Appeal No. 08-7365 Attached you will find the original Application/Decision & Order for Stonegate / Berta, Old Post Road, Wappinger Falls, NY., Tax Grid No. 6157-02-641504. I would appreciate it if you would file these documents. Attachments cc: Mr. Shah Mr. Berta Zoning Board Town File Town Attorney Building Inspector --= ~ ---.::--- . O~~~-l>>P;-tc It~\ ! 1-1 :!~ I, ____). O. ~/~ %~ ~~~' ~~~s c9~ . ---- TOWN OF WAPPINGER P.O. Box 324 - 20 MIOOLE:8USH ROAD W APPINGERS FALLS. NY 1 2590 Zoning Board of Appeals Oft'ic:e: 845.297.1373 IV Fax: 845.297.4558 Zoning' Enforcement Officer Offlce: 845.297.6257 www.townofwappinger.us Applica'tion for a ~se Variance' Appeal # ~.- '7;:; ~->&:) Dated: ~ .Jl4T1 o~ TO THE ZONIN~ BOARD O~ APPEALS, TOWN OF WAPPINGER, ~~W Y.Q~K: .' I (we), l--'1\t~wtl-'"" "..b ~~7'';'' :: residing at 7 ~c:rgnJ1 "f{.q 'P'J;)I, ~cj:.i1tfS I.L H't fl..l.t13 . it'L.i'17.,. '(,'J~ (phone),herebyappe~1 to the. Zoning Boarg. of Appeals from the decision/action of the Zoning Administrator, . dated ~,,",... ff... , 200~ and do hereby apply for a use variance. Prem ises located at a..1;) f" So '7 K " I'rO Tax GrId # (; I s-l- ~).. - (,'1 ("P 'f Zoning District L~? ~ t...-Za 1. ReconlOwnerofProperty 4"'7_ .l.tt.~ ~ ~"MIr) ~ Address ISj...9; lt7 37' \~~(. mu._. 7 ~. Phone Number~.w i1Y'/ ~. Owner Consent: Dated: H/~ '? I 07 Slgn~t. ~ . .- ~ Pnnted: _ .L~~------=':'" ~ 2. Variance Request: I(We) hereby apply to the Zoning Board of Appeals for CI variance of the following requirementS of the ZonIng Code. J1'o "j (p L (~) t 2tlo -l ~ t. C<) (Indicate Article, Section, Subsection and Paragraph) Intended use, alteratIon, conversion and/or co~truction (Describe proposed p~ect) . 'i.." ~_.., ... 61- h.. ~;...,~ .~ . f~~ ~ "'.: /""'~ .-d"-"-# ..., ~ H '11 b .4 (y ,t: trt {.../'1-1 t ~ ~ t ' TOW024.ZBA-AUV (4-03 Rev) J of 4 900~ VIV ~a~ao~ ~~~9a H 961S999t16 IVd 10:01 900~/Lt/tO , . 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 n8c8ssary): A. Are you able to make reasonable economic use Of your property without a variance? Please set fo detailed Financial evidence describing. ' . . i:. -r b ,8. ~s your property unique in the neighborhood that needs this type of a variance? Please explain your answer in detail. . . .:.J: "" I ~ -r If.<,. \il.-l" Ii fI !)~H-"" D Cc rib .. -r a ~ ~ lH ,:t oJ Z ....1"1'"} t'4'r"l- O~A1"Jl... ~ l ~rtrrl ~ h H-rJ e I klJ'D. 4. t N.t.. to' ~~/" (l-J'LF'P"'~Q' C. If your variance. is granted, will it change the kind of neighborhood in whi~h your property is .Iocal:8d? Please explain your .answer In detail. ... ...~ /.., . . ~va ~. ~~'~~~.~ A-~ ~~L~t~. ' ~ '-Vt4FdL~~~ . 7) Q,....o t. r ~ At..~? ..... I ~ ",. . -r'~ ~A-"'" i:.. . D. How did your need for a variance come about? Is your difficulty self created? Please explain YOY[ answer In detail. . . "'" .' ?: r?ti tJQ ~ ~~ 1+. ftt~ h-I-I 0 ar~~~ ~1t-<<-il.- \ ~Q.r41~ . r 6:'r/ ''<t ~.Y--' " -",,,,,. · ,"" . ~v. --E., t'f"Mt7 '-V/'Jr~ \~b""~';> t' LJ(lb~ Z,<I;"'fYlf1.,~(,.. Q. f_j..J _'7 t-J~ ?.-,;o1fM' kl q 0 ~J (:..6.lVLPf.,1s7L- . .. 4. List of attachments (Check applicabl8 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. h rf"- ~""r>-~ I Su......e, f)c:lL~d -.n- ~'-t, ~,(/7 . Last RevIsed and Prepared by () Photos M- Drawings Oated ~ ~ 2J I O-:r () Letter of Communication which resulted in application to the ZBA: (e.g., recommendation from the Planning Board/Zoning Denial) letter from Dated: Letter from Dated: TOW024.lBA.AlIV (4-03 Rev) 2 of4 LOO~ VIV ~a~ao~ ~~~8a H 961S999t16 YVd 10:01 900~/L1/10 Town of Wappinger Zoning Board of Appeals Use Variance Application Appeal No. () Other (please list): 5. Signature and Verification Please be advised that no appli,cation,i:a'n be deemed complete unle~ signed,below. e of application. DATED: ~ \:/~ O~ SIGNAT. SIGNATURE (If more than one Appellant) DATEO: 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 that 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. TOW024.zBA-AUV (4-03 Rc:v) 3 of 4 900~ VIV ~aMao~ ~~~wg H 961S999tt6 IVd 10:01 900~/Lt/to Town of Wappinger Zoning Board of Appeals Use Variance Application Appeal No. Conclusion: Ther~re, it was determined the requested variance Be C)1' GRANTED () DENIED. Conditions/Stipulations! The following conditions and/or stipulatIons were adopted by resolution of t'1e Board as part of..the action stated above: , Tne Z.l;iA has v~n::ed. ~o aeny DOFn ~ne It\t~tpre~a~1on and duo: trse \fCiL' i.nice. YiadiRgi aRQ Oac4o;nn ~~A ~~~~~had. . (X) Findings & -F:acts Attached. . OATED: Mav '1'9. 2008 BY: PRINT: TOW024ZBA.AUV (4-03 Rev) 4 of 4 600 III VIV ~a~ao~ ~~~8a H 961S999~16 IVd 10:01 900~/LI/IO TO'WN OF WAPPINGER Director of Code Enforelment GEORGE A. KOLS JR. Fire Inspector MARKJ.UEBERMANN Zoning AdmInIstrator. TATIANA LUKIANOFF ~ W~f:'P, ~o" .,.-t.". ~ :~ '........ ..if .', '-p C I- __ '>-: o~2?: c~..''''''' .....C' ,~ '. / A" ,y~ss CO~~ TOWN WILLIAI\, VINCEN MAUREEfiI JOSEPH SUPE JOSPEPH CODe ENFORCEMENT DEPARTMENT 20 MICCLEBUSH ROAO WAPPINOERS FALLS, NY 12590-0324 . (84S) 297-6256 . . FAX: (845) 297.()579 . OWNER CONSENT FORM TO BEnLED WHlN THE APPLICANT IS'NOT THE BUILDING. SITE OR raOPERTY OWNEll JUILDING PERMIT # APPLICATION # 'SITE LOCATION:' .:CJ.C 0 ~'fo 'S-r ~ D~O GRID: # Ct f ~';f ~ 6). .. (pG! t 50 1./ . Name of APPLICANT: ~ Lc..ti~. . 1; . 'e:,a fJ1/J., It I ~ (persoD PHYSICALLY amiDgln to apply) (IF other than tbe Owner) , t>ooJ CERTIFICATION ,..., NOTICE TO APPLICANI:~: 240..109 Certificate ~f Occuuancv , It shall be unlawful for a building owner to use or permit the use of any building or premises or part thereof hereafter created, erected, changed, converted or enlarged, wholly or partly, in its use or structure until a Certificate of Occupancy shall have been issued by the Building Inspector and the Zoning Administrator. FAILURE TO COMPLY AUY RESULT IN COURT PROCEEDINGS. 1, A H- M Oto .:? '-r~t'\ . owner o/th, ltUltl/silUbllilding h,r,by give my permission jor the Town of WllJlpingtr to approve fJr de,.y the "IItIV' applic4JifJ,. ill IIccDrdance with loelll and stllte codes ""d ordlntUlcu. JJ hi ~ I 01. Date 'U~, 'it,l" 1'3~ ( Owner's Telephone Number Code Enforcement Official: ~i~~ Owner's Signature A H':P1i\-O ~,-t~M'" Print Name IS1"b ~'T 1>'1" Print Owner's Address FOR ornet: USE ONLY ~Fr?', rLc;. t Hr SOO III VIV ~a~ao~ ~~~ea ~ 96!9999)!6 IVd 00:0! 900~/L!/!0 I I I I I I I . , I , ".) I J I j I I 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: 08-7365 & 08-7366 January 8, 2008 SAZ LLC by Michael R. Berta 1316 Route 9 . .135689-6157 -02-641504-0000 HD & R-20 SAZ LLC ~ 240-16(C)(2)(Non-Conforming Uses) ~ 240-37 (District Regulations) Description of the Premises & Proposed Chan2es . 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, Band C. The buildings contain a mix of dw~lling units and "rooms 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 se.cond 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, aNE-FAMIL Y - 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, howe~er, Buildings A, A-2, B and Care locat~d 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 Npn-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, submit~ed a Site Development ,Plan to the Plan~ing Board of the Town of Wappinger,entiUed "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 ARC a Site Plan was approved on May 4,-1998 by the Town of Wappinger Planning Board. The Resolution approving the ARCa 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 ARCO 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 ARCO 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 ARCO application. According to the above definitions, Building B is considered to be a One Family Dwelling and a Boardinghouse under the Zoning Code. Sheet 3 of 5 of the ARCO 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 ARCO 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 ARCa Site Plan. Sheet EX-3 depicts Building C with 16 rooms rather than the 17 approved on the ARC a Site Plan. Sneet 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 "kit~henette 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 Zoni!1g 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 norperrnitted in the HD District Definition of "Kitchen Facilities" 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.comlbrowse/kitchen (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 semien closed, provided that all of the above-specified kitchen facilities and equipment are within such recessed or semienc10sed 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.gov/hhes/www/housing/ahs/ahsO I/appendixa.pdL 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) 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 DweIlin!! 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 Buildin!! B as a Multi-Familv Dwellin!! 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. ZBA Lacks Jurisdiction to Modifv Site Plan Issued hv Plannine Board The Plannipg Board approved the ARCO Site Plan on May 4, 1998 which authorized 17 rooming house rooms in Building C. The ARCO 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 ARCO Site Plan does not show a second floor in ~uildjng B. ' Th~ 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 AReO 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 AReO Site Plan is questionable because the second story is missing. The jurisdiction of the Planning Board to entertain the ARCO Site Plan application and the SAZ Site Plan application appears to come from ~ 240-16(C)(l)(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 ARCO's application. ~240-16(C)(l)(b) allows the Planning Board to enlarge hon-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. The foregoing is the determination of the Zoning Board of Appeals.