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00-7071 ... J~ TOWN OF WAPPINGER P.O. Box 324 20 Middlebush Road Wappingers Falls, NY 12590-0324 --~~-:-=-=--:~- //:'>::VJ_~ !>>j):~" 7' ()'" / __~ ~.."," ~~. './..'.'--= ~..'l>.."':..~. <;!~'~~' ~~ /, , .. '.., ~~ ~\ () /' .' \, ff ....1'. '. ..2...~... ';. )0: I j ~"~I'h _...../~! "'" . ! ~ c:.~. ,'/~if ~1>~~ ~~SSCQ~%~ ~<::;::'==::-/ Telephone: (914) 297-1373 Fax: : (914) 297-4558 December 12,2001 To: Gloria Morse T own Clerk From: Michelle Gale, Secretary T own of Wappinger Zoning Board of Appeals Re: R.B. Hettinger/ Jon Adams Agent Appeal No. 00-7071 Attached you will find the original Application/Decision & Order for R.B. Hettinger/H & B Office Products, 51 Myers Corners Rd., Wappingers Falls, NY. I would appreciate it if you would file these documents. Attachments cc: Hettinger, Inc./H.B. Office Products Zoning Board Jon H. Adams, Esq. Richard 1. Cantor, Esq. Town File T own Attorney Zoning Administrator - ZONING BOARD OF APPEALS USE V AlliANCE APPLICATION [ffi~~~~W~[Q) OCT 1 0 2000 ZONING ADMINISTRATOR TOWN OF WAPPINGER Appeal #OD --'10'\ I Date: tofu/Do Fee: f So.re Receipt -<tJ- J os( 3 '. APPLICATION TO ZONING BOARD OF APPEALS TOWN OF WAPPINGER, DUTClillSS COUNTY, NEW YORK TO THE ZONING BOARD OF APPEALS, TOWN OF WAPPINGER, ~EW YORK: I I (We) .' R.B. Hettinger, Inc., by Jon Adams, agent ,of (Name of Appe/lant(s) Corbally, Gartland & Rappleyea, ELP''- 35 Market,St., Pouqhkeepsie, NY 454-1110 (Mailing Address) (Tel. Nos. Home/Work) 'HEREBY APPEAL TO THE ZONING BOARD OF APPEALS FROM THE DECISION/ACTION OF THE ZONING ADMINISTRATOR, DATED , 19_AND DO HEREBY APPLY FOR A USE VARIANCE. Premises located at 51 Myers Corners Road (Address of Property) 6157-02-899988 (Grid Nos.) R-20 (Zoning District) 51 Myers Corners Road, Wappingers (Address) R.B. Hettinger, Inc. (Name) I. RECORD OWNER OF PROPERTY 297-4'066 (Phone Number), qWNER CONSENT: Dated: Signature: See attached Printed: 2. VARIANCE REQUEST I (WE) HEREBY APPLY TO THE ZONING BOARD OF APJ;>EALS FOR A VARIANCE OF THE FOLLOWING REQUIREMENTS OF THE ZONING ORDINANCE. ,I 240-37 and 240-16 (e) (3) (Indicate Article, Section, Subsection and Paragraph) , INTENDED USE, ALTERATION, CONVERSION AND/OR CONSTRUCTION (Describe proposed project) commercial or profeRRion~l offi~p~ , " It ~~~g~~~@ OCl 1 () 2000 \N\S1R~,OR ZON\NG ~~~N~PP\NGE.R ,OWN 0 Zoning Board of Appeals Use Variance Ap.2lication ., Appeal No. . Page 2 3. REASON FOR APPEAL (Please substantiate the request by answering thefollowing questions in detail. Use extra sheet, ifnecessary): A. ARE YOU ABLE TO MAKE REASONABLE ECONOMIC USE OF YOUR PROPERTY WITHOUT . A VARIANCE? PLEASE SET FORTH DETAILED FINANCIAL EVIDENCE DESCRIBING. ~ SEE ATTACHF.n B. IS YOUR PROPERTY THE ONLY ONE IN THE NEIGHBORHOOD THAT NEEDS THIS TYPE OF A VARIANCE? PLEASE EXPLAIN YOUR ANSWER IN DETAIL. SEE ATTACHED 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 ATTACHED D. HOW DID YOUR NEED FOR A USE V ARlANCE COME ABOUT? IS YOUR DIFFICULTY SELF- CREATED? PLEASE EXPLAIN YOUR ANSWER IN DETAIL. SEE ATTACHED 4. LIST OF ATTACHMENTS (Check applicable information) ( x) FINANCIAL (ECONOMIC) STATEMENT. THIS STATEMENT SHOULD NOT BE PERSONAL IN NATURE. THE INFORMATION PROVIDED SHOULD RELATE DIRECTLY TO THE I PROPERTY FOR WHICH YOU ARE SEEKING A VARIANCE AND SHOULD ILLUSTRATE THE MONETARY INI\0RY OR UNDUE HARDSHIP YOU ARE SUFFERING WITHOUT THE VARIANCE. SEE ATTACHED ( ) SURVEY DATED BY , LAST REVISED AND PREPARED ~ ( ) PHOTOS ( X) DRAWINGS DATED 1. I \R1~~~n~~{Q) o ell 0 2000 ZONlNG ADM\N\STRA~~ TOWN OF WAPPlNG () LETTER OF COMMUNICATION WHICH RESULTED IN APPLICATION TO THE ZBA. (e.g., recollllllendationfrolll the Planning Board / Zoning Denial)' LETTER FROM LETTER FROM Zoning Board of Appeals Use Variance Ap.p.1icatiol1 '_', Appeal No. Page 3 DATED: DATED: ( X) OTHER (please list): Statement from broker I I ~ . 5. SIGNATURE AND VERIFICATION PLEASE BE ADVISED THAT NO APPLICATION CAN BE DEEMED COMPLETE UNLESS SIGNED BELOW. THE APPLICANT HEREBY STATES THAT ALL INFORMATION GIVEN IS ACCURATE AS OF THE DATE OF APPLICAT~'1: II", . . · B (t'--tJ7>Qv ;;vv-~ DATED: 1~/d/C0 I I SIGNATURE DATED: (If more than one Appellant) .................~...................................................................................................................... ...........~............................................................................................................................ FOR OFFICE USE ONLY A. THE APPELLANT ( ) IS ( ) IS NOT ABLE TO MAKE REASONABLE ECONOMIC USE OF YOUR PROPERTY WITHOUT A VARIANCE. ,I B. THE APPELLANT'S PROPERTY ( ) IS ( ) IS NOT THE ONLY ONE IN THE NEIGHBORHOOD THAT NEEDS THIS TYPE OF A VARIANCE. f; Zoning Board of Appeals Use Variance Ap-Rlication .. . Appeal No. Page 4 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. ~ . CONCLUSION: THEREFORE, IT WAS DETERMINED THE REQUESTED USE VARIANCE BE ( ) GRANTED ( ) DENIED. CONDITIONS/STIPULJ:\.TIONS: The following conditions and/or stipulations were adopted by resolution of the Board as part of the action stated aboye: ( ) FINDINGS & FACTS ATTACHED. DATED: ZONING BOARD OF APPEALS TOWN OF WAPPINGER, NEW YORK BY: . (Chairman) PRINT: ,I SWORN TO B~FORE ME ON THIS DAY OF ,2000 I I ml~@&OY&@ OCT 1 0 2000 ZONING A TOWN 0 DMINISTRATOR F WAPPINGER - (Notary Public) '. I , DESIGNATION OF REPRESENTATIVE TO MAKE A COMPLAINT I ~~(Q;~QW~[Q) ocr 1 0 2000 ZONING ADMINISTRATOR TOWN OF WAPPINGER It HELEN HETTINGER hereby give my consent to Corbally, Gartland and Rappleyea to act in my behalf as my representative before the Zoning Bosrd of Appeals of the Town of Wappinger for the purpose of prosecuting an application for a lease variance for the commercial premises located at 51 Myers Comers Road, Wappinger FaIls. Dated: October ID, 2000 . ~~~ HELEN HETTINGER \ 600~ aNV1~HV~ 'XllVgHOJ LS9t f'Sf' tT6 XVd to :tliHdOo/90/01--- Addendum to Use Variance Application fRi~~~ilW~[Q) OCT 1 0 2000 ZONING ADMINISTRATOR TOWN OF WAPPINGER hettzba. wpd R.B. HETTINGER v. ZONING BOARD OF APPEALS OF THE TOWN OF WAPPINGER A. A reasonable economic return cannot be obtained for either the current non- conforming use of any permitted use. Applicant cannot obtain a reasonable return for any permitted use or from the present non-conforming use of the building for retail sales of office equipment, which business is operated at a loss (see income tax returns submitted on a confidential basis). The building was built, upon information and belief, for restaurant purposes in the 1930's and operated continuously as such until the present use. The office supply and repair business was established in excess of 20 years ago when most customers used local business for general business supplies. With the advent of stores such as Staples, Office Depot and similar stores, all of which have a presence in the local market place, it is no longer possible to profitably operate the current business. Submitted separately for the confidential use of the Board are tax returns for the business. The principals of applicant are in excess of 70 years of age. They wish to retire. They have marketed their parcel through Pedatella Realtors in excess of 4 years. This was complemented by "for sale" signs. The only inquiries of interest received from them for the parcel are for professional or commercial office use. No inquiries have been received for residential use. Submitted with this application is a statement of a local realtor expressing the opinion that it is impossible to market the property for residential use. B. The circumstances are unique and not generally prevailing in the neighborhood. The circumstances of the parcel are unique and not generally shared by surrounding parcels as the parcel is a non-conforming substandard parcel which was created as a separate parcel on or before 1952, prior to the adoption of zoning and subdivision standards within the town. The current use is a non-conforming retail sales/service use. The parcel is an irregularly shaped parcel (see map attached-lot has 110 feet frontage but only 49 feet rear line) being approximately .26 acres in size (11,400 sq. ft.) having a maximum depth of 150 feet from Myers Comers Road, a heavily traveled county Page 1 of 2 highway. However, the average depth is under 75 feet as the west line angles sharply to the rear. It is improved by a 1512 sq. ft. building. Because of the irregular shape of the lot, the building is located within 23 feet of the pavement of Myers Corners Road (the county right of way may be closer); zoning requires residences to be set back a minimum of 75 feet from a county highway. A map of the parcel is submitted with this application. Because of the close proximity to the county road, a safety issue relative to children and the road's proximity removes the building from the primary residential customer, i.e., families. Nosie factors associated with the proximity to the road also precludes successful marketing of the premises even if one would otherwise be inclined to convert the premises. The only permitted uses in the R-20 zone are residential uses requiring a minimum lot size of 20,000 square feet. As evidenced by the attached statement of Keith Carlson, it is not possible to successfully market this substandard irregularly sized lot for residential purposes where buyers have an expectation of minimal amenities such as yard area and sufficient set back from a county highway to minimize road noise. c. If the variance is granted, will it change the character of the neighborhood in which the property is located. The existing character of the neighborhood will not be changed by the granting of the variance. The current Comerica use of the parcel predates zoning. Several other non- residential uses are located in the same area along Myers Corners Road. Applicant will consent to a condition of approval which would require any new use permitted under the variance to obtain, as a precondition to such use, site plan approval. D. Is the hardship self-created. The history of the parcel is described under Item B above. The hardship is not self- created. The hardship results from the character of the lot which predates zoning and the historical non-conforming use of the parcel. Page 2 of 2 fPJ &@&O W'f12 fN\ OCT LSiQ; 1 0 2000 ZONING AD TOWN OF ~/N'STAA TOA 'APPINGEA DECISION ON APPLICATION FOR AN INTERPRETATION ANDI OR USE VARIANCE (Appeal No. 00-7071) Applicant: R.B. Hettinger, Inc. (hereinafter referred to as "Hettinger") Premises: .26 acre parcel located at 51 Myers Corners Road in the Town of Wappinger Tax Grid No.: 6157-02-899988 THE APPLICATION This is an Application by R.B. Hettinger, Inc. for a variance from Section 240-37 and Section 240-16 (C)(3) for certain premises located at 51 Myers Corners Road. The essential facts are undisputed. The subject property has been used for an office supply and business machine repair shop in excess of 20 , - years as a previously existing non-conforming use. The property has been used for business and/or restaurant purposes dating back to the 1930's. The parcel is an irregularly shaped lot containing approximately .26 acres having frontage on Myers Corners Road. The parcel has never been used for residential purposes. The office supply and business machine repair shop has suffered from competition from substantial hational chains such as Staples and Office Depot. The Applicants seek to obtain a variance so that the property could be used for unspecified "commercial or professional offices", apparently to facilitate a sale of the property. The Applicant was represented by Jon H. Adams, Esq. The Application was opposed by an adjoining neighbor who was represented by Richard I. Cantor, Esq. In furtherance of this Application, the Zoning Board received the following documents or correspondence: 1. Letter from Jon H. Adams to Tatiana Lukianoff dated October 10, 2000 together with EAF, tax returns and application fee; 2. Letter of Denial from Tatiana Lukianoff to Jon H. Adams dated October 24, 2000; 3. Use Variance Application dated October 29, 2000 from R.B. Hettinger, Inc., by Jon Adams, agent; 4. Letter from Jon H. Adams to AI Lehigh dated December 7,2000 together with Deed and portion of site map prepared by Jack Railing; 5. Letter from Richard P. Bickerton to Alan Lehigh dated March 3, 2001 indicating no objection to an approval for a use variance; and . -- 6. Statement dated July 24,2001 from R.B. Hettinger/ H.B. Office Products with information regarding failed sales proposals. PUBLIC HEARING A Public Hearing on this Application was opened on August 14, 2001 and adjourned to September 11, 2001 and subsequently adjourned to and closed on November 13, 2001. Helen Hettinger and Keith Carlson, a local real estate broker, testified in support of the Application. Richard I. Cantor spoke in opposition to the Application. DECISION The Town of Wappinger Zoning Code provides in pertinent parts as follows: 2 · Section 400.5.2.4: "No non-conforming use of land shall be changed to another non-conforming use." · Section 400.5.3.3: "A non-conforming use of a building may be changed only to a conforming use." Research has disclosed that the Courts of this State have generally_ held that while an established lawful non-conforming use may be continued, a new non- conforming use may not be substituted for it despite its generic similarities. Greiro v. Board of Appeals of the City of White Plains, 612 N.,Y.S. 2.d 509. Likewise, whether a determination of a particular use is a continuation of or a change in non-conforming use is a factual one which should be decided in each case by the Zoning Board. City of Albany v. Feigenbaum, 611 N.Y.S.2d 719. Significantly, the Applicant here has not proposed a new or similar use of the site but in effect seeks permission to utilize the parcel for unspecified commercial or professional offices. No specific use has been proposed and no specific site plan has been tendered. "A variance is designed to authorize a specific [emphasis added) use of property in a manner otherwise proscribed." Panariello v. Demetri. et al.. 99 A.D. 2d 770, 472 N. Y.S. 2d 17 (2d Dept., 1984. Moreover, "[a) variance constitutes only limited permission to use a given parcel of property for a specific nonconforming use, and does not constitute a zoning amendment reclassifying the subject parceL" In The Matter of Abbey Island Park. Inc. v. The Board of 3 " Zoning Appeals of the Town of Hempstead. 133 A.D. 2d 150, 518 N. Y.S. 2d 823 (2d Dept., 1987) In the absence of a specific proposal, the Zoning Board is without authority to grant a use variance because, without knowing the particular use, the Board is incapable of evaluating the proposed use in accordance with the criteria set forth in Town Law Section 267-b2(b). For example, without knowing the proposed use, the Board will be unable to determine whether the requested use will "alter the essential character of the neighborhood." See Town Law Section 267-b2(b)(3). To do otherwise would only give "rise to serious questions involving the scope and nature of the variance", encouraging revisitation of the ,. --- issue via prolonged litigation. Panariello. Id. Accordingly, the Application for a generic use variance is denied without prejudice to renewal on submission of a proper application specifying the proposed use for which a variance is sought. COMMENTARY This Board is of the unquestioned opinion that the Applicant may continue to use the site for the sale of office supplies and as a business machine repair shop. While the Board is fully aware of the burdens imposed on non-conforming uses, this Board is also of the opinion, in context of the circumstances and history of this particular site, that it may, in proper circumstances, be used for similar or analogous sales and service business. Initially, it is the function of the Zoning Administrator to make the determination that a proposed use is a continuation of the existing non-conforming uses. If the Zoning Administrator determines that a proposed use is in any matter a change in use, then the proposed use must be 4 referred to the Zoning Board of Appeals for a determination of whether a particular use is a continuation of or a change in a non-conforming use. If it is determined that it is a change in use than the Applicant must apply to the Zoning Board for a variance or to the Town Board for a Special Use Permit pursuant to Town Code S 240-16 (F). Section 240-16 (F) provides that upon issuance of a Special Use Permit by the Town Board and approval of a Site Development Plan by the Planning Board, a property owner may make limited changes to a non- conforming site so that the site can be brought into greater conformity with the Zoning Code. The Board further notes that the most recent use of th~ prop~rty for the sale of office supplies and business machine repair shop is both a "retail sales" and "service" use as these terms are defined in the Schedule of Use Regulations for Non-Residential Districts. "Service" uses have been deemed to include a "copy center," which is a separately defined use from "retail uses" which, in turn, are simply identified as stores and shops for the conduct of retail business. For informational purposes only, the Board wishes to advise the Applicant and interested parties that the Schedule of Use Regulations for Residential Districts in the Town Zoning Code does permit professional office use, studio use and home occupations in a residence within Residential Zones in certain circumstances. While such uses must be conducted in conjunction with the primary use of a building as a residence, professional offices are permitted in Residential Zones, albeit as an accessory use. Accordingly, this Board is of the opinion that upon an appropriate application and subject to the Applicant meeting 5 the evidentiary criteria required to establish a use variance and the Applicant's ability to mitigate potential impacts on neighboring properties, the Applicant may be able to obtain a variance for professional or for service use on the subject parcel. However, in the absence of a specific proposal, this Board is unable to apply the statutory criteria required by Town Law to S 267 (b) and accordingly, this Board declines to make a decision for a generic variance. The above constitutes the Decision of the Board. Alan Lehigh, Chairman voting Yes Gerald diPierno, Member voting Yes Victor Fanuele, Member voting Yes Howard Prager, Member voting (Absent) Douglas Warren, Member voting Yes Dated: December 11,2001 Wappingers Falls, New York Cc: Hettinger, Inc./ H.B. Office Products Jon H. Adams, Esq. Richard I. Cantor, Esq. Tatiana Lukianoff, Zoning Administrator Hon. Gloria Morse, Town Clerk 6 , '"