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DECISION ON APPLlCA liON FOR AREA VARIANCE M t: GEl V t:: 0
Applicant: Alpine Company of Poughkeepsie
OCT 1 5 1999
Premises: Alpine Commons Shopping Center
Tax Grid Number: 015702707773
:::LAiNE SNOWDEN
'W\!N CLERK
By Application dated June 25, 1999, the Alpine Company of Poughkeepsie
("Alpine") submitted an Area Variance Application for a variance from a written
determination made by Acting Zoning Administrator, Mark Lieberman dated June 17.
1999.
A Public Hearing on this Application was conducted on August 10, 1999,
which was adjourned to and closed on August 24, 1999. At the Public Hearing, the
Applicant gave testimony and submitted copies of the following documents:
1. Copy of an Easement and Maintenance Declaration encumbering the
subject properties dated June 2. 1999.
2. Copy of a portion of Lease Agreements between Alpine and existing
tenants. respectively dated December 12.1991 and July 3, 1992.
3. Copy of portion of an Agreement of Purchase and Sale dated May 29.
1999.
4. Copy of "Subdivision Plan prepared for Alpine Company of
Poughkeepsie, dated September 15. 1999. Last revised May 28. 1999."
5. A portion of a Mortgage Agreement dated February 26. 1999 covering
the subject premises.
In addition. attorney to the Town, Albert P. Roberts. introduced a copy of Local
Law #1 of 1999. a Local Law which conditionally rezoned 18 acres to the immediate
south of the subject properties.
October 12, 1999
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On referral from the Zoning Board, both the Town Board and the Planning
Board recommended against granting the variance.
Based on the information supplied and submitted at the Public Hearing, the
Zoning Board of Appeals makes the following findings:
FINDINGS
1. Applicant has indicated it has negotiated a sale of the existing Shopping
Center. However, the purchaser was unwilling to pay for the developmental rights to
the undeveloped portion of the Shopping Center and thus, Applicant seeks to
subdivide the undeveloped portion to preserve any potential developmental rights.
2. By Application dated Aprjl 16, 1999, Alpine made application to the
Planning Board to subdivide the premises commonly known as the Alpine Commons
Shopping Center into two lots, one lot containing approximately 76.2 acres and the
other lot containing 10.6 acres.
3. The proposed lot containing 10.6 acres is situated partially in the
Shopping Center ("Se") Zoning District and partially in the Highway Design ("HD")
zoning district.
4. The acting Zoning Administrator determined that lots within an SC Zone
require a minimum of 10 acres and lots within an HD Zone require a minimum of 5
acres.
5. The proposed 10 acre lot contained approximately 7.58 acres in the SC
Zone.
6. The acting Zoning Administrator also noted that Zoning Law Section
330 requires that each portion of a lot shall comply with the requirements of the
District regulations as provided in Section 420.4 of the Zoning Law. The Acting
October 12, 1999
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Zoning Administrator then determined "... that the lot area of your aforementioned
plan does not conform to the bulk requirements under the Town of Wappinger Zoning
Law Section 420.4".
7. During the Public Hearing, the applicant gave evidence that the HD
portion of proposed 10.6 acre lot contained only 2.75 acres which is less than the 5
acre minimum for a parcel in the HD zone. However, the HD portion was previously
a separate lot and the nonconformity was created by the adoption of the Town's
Zoning Law. The 7.58 acre portion in the SC Zone will not comply with the 10 acre
minimum in such district. Other than the 2.75 acres within the HD Zone, the balance
of applicant's property (86.8 acres) is located in an SC Zone.
8. The Zoning Board of Appeals also notes that the site (Alpine Common
Shopping Center) was approved and developed as one parcel and the various
separate parcels comprising the Shopping Center were consolidated into one parcel
as per Planning Board requirements.
9. By document dated June 2, 1999, Alpine executed an Easement and
Maintenance Declaration "REA" which in substance categorized the Alpine Common
Shopping Center into two parcels, one portion being designated "Shopping Center
Parcel" and the other parcel being designated the "Development Parcel" with the so-
called Development Parcel being the undeveloped portion of the Shopping Center.
The REA was done unilaterally, without benefit of any approval from the Town of
Wappinger; it is unclear if consent to the REA was given by applicant's tenants.
10. In rendering its Decision herein, the Zoning Board considered the
following factors and made the following determinations:
October 12, 1999
1 a: Will the requested variance be detrimental to nearby properties?
No.
1 b. Will an undesirable change occur in the character of the
neighborhood?
Answer: No.
Answer:
2. Are there any alternative (feasible) methods to achieve the
benefit sought by Applicant?
Answer: Yes - increase the land area in the SC portion of the Lot to 10 acres;
applicant owns or controls additional lands in the SC District, which could otherwise
add to the Proposed Lot.
3. Is the requested variance substantial?
Answer: Yes - A 24% reduction in the minimum lot size for a Shopping Center
Zone.
4. Will the variance cause adverse effects on the physical and/or
environmental conditions in the neighborhood or district?
Answer: Yes - There will be adverse effects on the development potential of the
subject site and adjacent properties; the overall impact will be a reduction in the
developmental potential of the subject site and adjacent properties.
5. Is the difficulty "self created"?
Answer: Yes.
6. The Zoning Board also notes that both the Town Board and the
Planning Board recommended against granting the requested variance.
October 12, 1999
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October 12, 1999
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existing Shopping Center. (The purchaser was apparently unwilling to pay for the
potential development rights to the undeveloped portion of the existing Shopping
Center). Bo~h the Town's Zoning Law and Subdivision Regulations expressly evince
an intent to avoid nonconformity and that any new lots should conform to the
minimum requirements of the Districts in which they are located. The Applicants self-
serving interests in maximizing the developmental potential of a portion of the
existing Shopping Center are insufficient to ignore the minimum acreage
requirements for an SC District. The Town Board established a 10 acre minimum for
a lot in a SC District and that requirement must be honored. Accordingly, the
Application for a variance is denied. The Zoning Board of Appeals also relies on the
ruling in Howard Loewentheil. Inc. v. Crescenzi, 185 A.D.2d, 979 (1992) (587 N.Y.2d
30), which upheld the denial of a subdivision which would have created a lot within
two zoning classifications. The Zoning Board also notes that the pertinent
subdivision regulations in the Loewentheil case were identical to those in the Town of
Wappinger.
October 12, 1999
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The question of the adoption of the foregoing Decision was duly put to a vote
on roll call, which resulted as follows:
Howard Prager, Chairman
Gerald diPierno, Member
Douglas Warren, Member
Alan Lehigh, Member
Victor Fanuele, Member
voting: (J1jL
voting: ~
voting: Off
voting: AtJ>':i?r\ -}
voting: ('LI~ .
Dated: October 12, 1999
Wappingers Falls, New York
CJVUjj-yVVA n/~l'~
Christine; DiPaob, Clerk to Zoning Board
of Appeals
October 12, 1999