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08-7365/66 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 Re: Stongate/Berta Decision Appeal No. 08-7365/fi,f.t:; 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 .l - -~ " ~ 'IJ~Pp;. ~o,..,.~c. ,. ~ . " ':.A', ,7 ~" '. > . ,...~\\ '0 \ ", r ~I ,,' )!>)I (, I __~ ~,I' o ~,.~!. ~ .. /' :.~.:r ~~/' Z~~S'=SO~~ TOWN OF WAPPINGER P.O. Box 324 ... 20 MIDDLEBUSH ROAD WAPPINGERSFALLS, NY 12590 Zoning Board of Appeals Office: 845.297.1373 ,.., Fax: 845.297.4558 Zoning' Enforcement Officer Office: 845.297.6257 www.townofwappinger.us . Applica'tion for a Use Variance ~ , ' , Appeal :# ~- '7?J0C) /{~to. I Dated: ~ J'"yn o~ TO. THE ZONING, BOARD O~ APPEALS1 TOWN, OF WAPPINGER1 "'~W Y.Q~K: I (We), Y'1'\t~~it',", "'. .b~lt~~ : :, residing a't 7 ~,,"gjH'1 f{q rJu,,~fi;:.i~fs.I.L H"t . (l.l.tJ"!, , . iiL...~.... 1(,"1 1J (phone), hereby appe~1 to the Zoning Boarg. of Appeals from the decision/action of the Zoning Administratort . dated ..t.~~ ft. , 200~ and do hereby apply for a use variance. . , Premises located at 6L-1) faS7 K tUt-D Tax GrId #. &1 51- ~).. - (, /CP 'f Zoning District H p i t..-Za 1. ReCOrd~WnerD,prDPerty '71+'l, Lt.t. f~':HMm; ~trt"lf-w) ~ ' Address ISJ...~ ftT 37' \V~(J(. ~_' _7 ~. , . Phone Number ~ ~ "11 Y'I . " , Owner Consent: Dated: H"~ '?'.: "., Slgnat. , ".. Printed: LG; , '.' l?c;rJ. 7' . 2. VarJanee Request: r(We) hereby apply to the Zoning Board of Appeals for ~ variance of the following requirements of the Zoning Code. ]cfo "-J (p L (~J t 2r.f:o -l ~ t. (<) (Indicate Article, Section, Subsection and Paragraph) €- It' b-t TOW024.ZBA.AUV (4-03 RC:\I) J of 4 900~ VIV ~aMao~ ~JJ~a H 96!S999t!6 IVd !O:O! 900Z/L!/JO .\. Town or 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 fo detailedtinancial evIdence describing. . . -'~~' ~. .B. ls your property unique in the neighborhood that. needs this type of a ,varIance? Please explaIn your answer in detail. ' ,,',' . .:.....C"l'-i//o<.. UIk(f:ltl~I)~l<+""D (Pr<t:~-r oF- ~~(.:rvJ!~""') t,,"{.. O~~lTA..', ~ l~'?trrlt?- hl:rrJf. ~ D~_, -C;'tk&.!.. ~~, 7 tJ'~PP""'Q' , . C. If your variance is granted, will it change the kind of neighborhood in which your property is .located? Please a"plain your,answer In dataiL '.,. .,' f/;.' '/'.., ,. ~V1i. ~ '. ~~f-'~ ' ~ ~:l:'~-';'~ " t <-Vt'lFeJLt"l,u-.:~ . ? 11 Q....o to, t? At.. ~ . ..... I ~ ~~ ~ -c. ~,,""r...-II:... " : D. How did your need for a variance come about? Is your difficulty self created? Please explain YOy! answer In detail. " ' ~ .' ?: C>~....);2 ~ ~~ (4- f li~ 6-1-1 0 yt..""""~ ~ Mil.- \ f-ltr."'l!" ' F' -- {. f:.<- ..... - - ~~ ~ - ~..... ~ · ,"" . r-= 0(';'" 4 fI- {..t>1,l 7 .....V",..~ \~b '" ~ " t. Lf (1 b~ I q.lw, fY~ G.~ P. f~..J J:K.I t.....J rJ-s ?'~fIM' hi q 0 ~J c..6Jvt..P,f.,~-;: . . "." 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. b r1"l... ~"'If>o~ I "- Sur.,ey DC2t~d -J:I- (;1~, '01 ~1 . Last RevIsed and Prepared by () Photos M.. Drawings Dated ~ ~ 2J I (,-:r () Letter of Communication which resulted in application to the ZBA: (e.g., recDmmendation from the Planning Board/Zoning Denial) letter from Dated: Letter from Dated: TOW024.ZBA.AUV (4-03 Rev) 2 of 4 LOO~ VIV ~aMao~ ~~~sg H 961S999~16 IVd 10:01 900~/L1/10 . . Town of Wappinger Zoning Board of Appeals Use Variance Application Appeal No. () Other (please list): s. Signature and Verification .' '. . .'1 . . Please be advised thaf no appH.cation.c(tn be deemed complete unles~ signed.below. . date of application. . ~heapplicant hereby states' SIGNAT. DATED: ~ ~ L~;'-l 0 ~ $IGNATURE (If mor.e than one Appellant) Di\T!O: 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 thls.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-J\UV (4-03 Rev) 3 of 4 800~ VIV ~aMao~ ~~~ua H 96TS999~T6 XVd TO:OT 900ZILT/TO Town of Wappinger Zoning Board of Appeals Use Variance Application Appeal No. ....~-~,.,~--~~~ ''''''''''-. Conclusion: ThEi!rl1tfqre, it ~as det i..s.r9J />(~edthere' ,uested variance , Be~ W DENIED,. Conditions/StIpulations: The following conditions and/or stipulatIons were adopted by resolution of tl1e Board as part of..the action stated above:. . " The ZJ;SA ha,s v9cea 1::0 aeny oo~n I::he Itl.tE!rpret:at:10n and I::ht: l:i~t: Vc:lLlcui~~. fiRdingi ~d DQC~~~n" ~~A ~~~~~h.Ad' . (X) Findings. & ,~acts Attached. . DATED: May '1'9. 200.8 ZONING BOARD OF APPEALS . . TOWN 07APPIN~ER'!r YORK BY: Ah)tJ [~ J' /((Chairman) PRINT: ft1JtVd-K../J '~A.6rl6.. TOW024.zBA.AUV C~J Rey) 4 of 4 600~ VIV ~aMao~ ~~~ag H 96TS999~T6 IVd TO:01 800Z/LT/TO TO'WN OF \V APPIN"GER DI...ctor of Code Enforcement GEORGE A. KOLa JR. Fire Inspector MARK J. LIEBERMANN Zoning Administrator. TATIANA lUKIANOFF ~ VJ~F:'P, ~o,-,~, . :"" ~ ,,06\ .... '.' 1.~ C ,,..., '>,' e ~~I 'C~'" ,~", ..... / A" C',y, -,' v~ ~ss cQ TOWN WILL/A^' VINCEN MAUREE~ JOSEPH SUFE JOSPEPH . . coDe ENFORCEMENT DEPARTMENT 20 MIOOLEBUSH ROAD WAPPINOERS FALLS, NY 12590-0324 , (845) 297.6256 . , FPlI.: (845) 297-0579 . OWNER CONSENT FORM TO BE .mEn WHEN THE APPLICANT IS'NOT THE BUILDING. SITE OR PROPERTY OWNEll BUILDING PEDUT # APPLICATION # 'SitE LOCATION: .:CJ.GO ~ ,.r,,'~i7 ~D"rO GRID: # 'Ct I ~~ ~ 6) .. (pel ~ 50 t.i ' Name of APPLICANT: ~ LC.rt~k. '~.' ~i2 fJ1/J., It I ~ (person PHYSICALLY comlDgln to apply) (IF other than the Owner) , t"ooJ CERTIFICATION -- NOTICE TO APPLICANTS: 240-109 Certificate of OccuDanev , It shall be unlawful for a buildin,owner to use or pmnit 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. FA.1LURE TO COMPLY MAY RESULT IN COURT PROCEEDINGS. /, At H- /"'1 0..0 ~ ,tb't-\' . owner ofth, ltUldlsitUbuilding h",by give my permission for the Town 0/ WllJlpinger If) IlJJprove (Jr deny the lIbove IIpplicllJion in IIcc(Jrdllnce with local and stllte codes IInd ordinances. JJ hi ~ I Ot Date 'b{~, tft,l" J3~ I Owner's Telephone Number Code Enforcement Official: ~~~ Owner's Signature A H-:P1 i\- I] ~ 11" A- rr Print Name I 52. "i> t "i ""1 "1 (,.. Print Owner's Address FOR OFFICE USE ONLY ~1!r1,. fv;. l f-/r SOOflJ VIV ~aMao~ ~~~eg ~ 961S999t16 XVd 00:01 900~/L1/IO I I I I I , ! ,/ ! , i '. I I I 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 Regul~tions) Description of the Premises & Propos'ed 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 B4ilding B which includes the caretaker's apartment. The Applicant has not requested any changes to Buildings A, A-2 or C. Relevant Definitions ~240-5 of the Town of Wappinger Zoning Code contains the following definitions: BOARDINGHOUSE - A building or portion thereof containing three or more rooms without kitchen facilities, that are occupied on a nontransient basis for sleeping purposes for compensation, whether the compensation is paid directly or indirectly. The term "boardinghouse" shall be deemed to include rooming house, but not bed-and-breakfast establishment, motel, hotel or multifamily dwelling. DWELLING - A building containing one or more dwelling units. DWELLING, MULTIFAMILY - A dwelling containing three or more dwelling units. DWELLING, ONE-FAMILY - A dwelling containing a single principal dwelling unit. DWELLING, TWO-FAMILY - A dwelling containing two principal dwelling units. DWELLING UNIT - A building or portion thereof providing' complete housekeeping facilities for one family including independent kitchen, sanitary and sleeping facilities, and physically separate from any other dwelling unit, whether , or not in the same ~uilding. '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 ARca Properties, Ltd., the prior owner of the premises, submitted a Site Development ,Plan to the Planning.Board of the Town of Wappinger.enti~led "Lands o(ARCa Properties, Ltd. Amended Site Plan: Rooming House Renovations" dated Jan. 9,.1998, last revised Feb. 23, 1998 containing 5 ,sheets. (hereinafter "ARCa .Site Plan") The ARCO 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 ARCa Site Plan shows 17 rooms in Building C. The Resolution of approval does not mention any changes to the other buildings. . Sheet 4 of 5 of the ARca Site Plan shows a floor plan for the first floor of Building B,' with' a caretaker apartment (a dwelling unit), four "rooms without kitchen facilities", a dayroom, a store room and a lobby; 'the s,econd 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 ARca 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 ARCa Site Plan depicts the configuration of existing Buildings "I-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 ARCa 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. ' construc'tion was nearly completed, building inspectors noted that plumbing for sinks Were' located in the "kit:chenette 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!lg Administrator made the determination that the combination of a refrigerator, a 'microwave oven and a bar sink constitutes "kitchen facilities." Becaus~ the new rooms now contain "kitchen facilities" the units change from Boardinghouse Rooms to Dwelling Units, thus changing BuildingB from a Boardinghouse with a Single Family Dwelling Unit, into a Multi- .Family Dwelling. A ,Multi-Family Dwelling is not permitted in the HD 'I?istrict: 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 a~ea equipped for preparing and cooking food." kitchen. Dictionary.com. The American Heritage@ Dictionary of the English Language, Fourth Edition. Houghton Mifflin Company, 2004. http://dictionary.reference.comlbrowselkitchen (accessed: May 09,2008). A Rule of the New York State Division of Housing and Community Renewal dealing with Rent Controlled Units found at 9 NYCRR 2200.9 defines a "self-contained family unit": (2) The term self-contained family unit shall mean a housing accommodation with private access, containing two or more rooms, consisting of at least one bedroom and a living room/dining space area in addition to a kitchen (with cookimz and refrieeration 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 sernienclosed 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- definitioh: "Complete kitchen fac.ilities. A housing unit "has complete kitchen facilities" wh~n it has all of the following: (I) kitchen sink; (2) burners, cook stov.e; or microwave oven; and (3) refrigerator." hHp:llwww.census.gov/hh.es/www/hollsing/ahs/ahsO lIappenJixa.pdf. All three of the above definitions are in l:iccord 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 DwelIine: Units The ~ight 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 a1).d therefore it is affirmed. - . . Variance to Use Buildin!!: B as a Multi-Familv DwelIin!!: 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)(l) StOll 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 '110 sinks are shown in the ."kitchenettes" sho~n on Sheet EX..2 of the SAZ Site Plan and plumbing for such sinks was', installed. This plu~bing work was done without plans and it is a violation. Such plumbing , should be removed. ' ZBA Lacks Jurisdiction to Modifv Site Plan Issued bv PIannine Board The Planni.ng 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 pl~ns 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 ~uilding B. ' Th~ ZBAconducted,a site visit arid it determined that the SAZ Site PI~n properly reflects the current configuration of Building B and it appears that the ARea,Site Plans were incorrect in . at least two respects: (i) the Second Floor of Building B was not shown and (ii) no st.airway leading up to the second floor is shown on the Building B floorplan. 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 t~e 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 corne 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 non-conforming uses and it did so when it allowed for 17 rooms under the ARCa application this prior determination will ~ot be disturbed. Since the Plamling Board se,t a room count in the ARCa ' application, arty variation in the number of Boardinghouse roorns is a site plan amendment and . does not'requite a use variance. The Planning B<?ard should determine the,~ppropriate'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.