1222
J\PPEAL ACTION
REFERENCE...
Appeal No.
1")")")
...LL..G.L.
Application Date:
OS/22/96
Filing Date:
06/26/96
ACTION OF THE ZONING BOARD OF APPEALS OF THE TOWN OF WAPPINGER. N.Y.
TO: Malcolm Fraser, Appellant
175 Route 82, Hopewell Junction, NY 12533
Re: Community Service station Car Wash
ProperLY Location: 470 All Angels Hill Road
Tax Grid #19-6357-03-207006-00
At the meeting of the Zoning Board of Appeals on 06/25/96, the referenced
appeal was considered and the action indicated below was taken on your
request for an area variance to the Town of wappinger Zoning Law.
Aopeal #1222 - At the request of Communitv Service station Car Wash
who is seeking a variance of Article IV, section 420.4, where you are
required to maintain a maximum impervious surface (building & paving)
of 50%, and you are showing 67.9%, thus requiring a 17.9~ impervious
surface variance for a proposed car wash on property located on All
Angels Hill Road and is identified as Tax Grid #19-6357-03-207006-00
in the Town of Wappinger.
Mr. Prager made the motion to grant the variance for the following
reasons:
1. The requested variance would not be detrimental to nearby
properties.
2. The requested variance would not change the character of the
neighborhood.
3. There are no alternatives (feasible) methods to achieve the
benefit sought.
4. The requested variance is not substantial.
5. The requested variance will not cause adverse effects on the
physical and/or environmental conditions in the neighborhood or
district.
6. The difficult.y is not "self-created".
Mr. dlPierno seconded the mot.ion.
Roll Call:
Mr. Prager:
Mr. Fanuele:
Aye.
Aye.
Mr. Lehigh:
Mr. diPierno:
Aye.
Aye.
1.11- ~ Warl-erl:
-P,:S' e .
Tlit::: lrlG 1: l.Gl-i
, ,
~vias carl~leG..
~UNLLu~~uN. 'l'llereiore, i~ Wdb determined that the reqllested varlances ~=
gr an. L..e.a..
Malcolm Fraser, Appellant
Re: Community Service Station
Appeal #1222
Page 2
.
Mr Joseph Howard Prager:
Zoning Board of Appeals
Town of Wappinger
Sworn to bero~ me on this
di. ~ day or ~~J ~ 1996
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Notary Public
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N(:~".r./ p. ~".,-j~(' of r,L~\'l York
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Cornr(ii:-,::;,)r- E?pir83 1::/31/19-
APPEAL ACTION
REFERENCE:
Appeal No: 1210 and Appeal No: 1213
ACTION OF THE ZONING BOARD OF APPEALS OF THE TOWN OF WAPPINGER. N.V.
TO: Gasland Petroleum Co., Inc., Appellant
185 Broadway, Kingston, N.Y. 12501
Tax Grid #19-6157-02-610544-00
At the meeting of the Zoning Board of Appeals on 01/23/96, the referenced
appeal was considered and the action indicated below was taken on your
request for an area variance to the Town of Wappinger Zoning Law.
By resolution of the Board, it was determined that:
WHEREAS, Gasland Petroleum Co., Inc. (hereinafter referred to as
"Appellant") filed a Notice of Appeal dated August 22: 1995 (Appeal No.
1210), seeking a variance from Article IV Section 444.6 (presently
numbered Article IV Section 440.3.5) of the Zoning Ordinance of the Towm
of Wappinger, which section requires a minimum of 2,500 feet between
gasoline filling stations;
WHEREAS, at the public hearing held on September 12, 1995, a question
was raised on the record as to the applicability of Article IV section
400.5.2.3 of the Zoning Ordinance of the Town of Wappinger: which section
provides that if a nonconforming use of land "ceases for any reason
whatsoever for a continuous period of more than two years, or is changed
to a conforming lusel, any future lusel of such land shall be in
conformity with all provisions of this ordinance";
WHEREAS, on September 14, 1995, the Appel]ant filed a Notice of
Appeal (Appeal No. 1212) regarding an interpretation of Art.icle IV sect.ion
400.5.2.3;
WHEREAS, on October 10, 1995, the Zoning Board of Appeals upheld the
interpretation of the Zoning Administrator that Article IV Section
400.5.2.3 of the Zoning Ordinance of the Town of Wappinger applied, and
that. t.he use must conform wit.h t.he provisions of the Zoning Law;
WHEREAS, Appellant. did not file an Article 78 proceeding or request. a
rehearing of Appeal No. 1212 within the time prescribed by law: the
decision of the Zoning Board of Appeals dated October 10, 1995 is a final
and binding decision with respect to said interpretation;
WHEREAS, on October 19, 1995 (at. which time Appeal No. 1210 was still
pendingL the Appellant filed a Notice of Appeal (Appeal No. 1213) for a
variance from Article IV Section 440.3.1 of the Zoning Ordinance of the
Town of Wappinger.. which section mandat.es t.hat no gasoline filling station
shall be within 1,000 feet of the boundary line of any residential
district;
1
WHEREAS, on November 15, 1995, a public hearing was held on Appeal
JIlo_ 1210 and Appeal No. 1213, said appeals were consolidated: and t.he
hearings were adjourned to November 28, 1995, pending input of the
Planning Board of the Town of Wappinger; and
WHEREAS, further adjournments were requested and granted to the
Appellant. The public hearings were closed on December 12, 1995, and the
matter was further adjourned until January 23, 1996.
After review of the record of Appeal No. 1210 and Appeal No. 1213,
t.he Zoning Board of Appeals makes the following Findings of Fact:
FINDINGS OF FACTS
On August 22, 1995, Appellant filed a Notice of Appeal with the Town
of Wappinger Zoning Board of Appeals seeking a variance from Article IV
Section 444.6 (presently numbered Article IV Section 440.3.5) of the
Zoning Ordinance of the Town of Wappinger, which section requires a
minimum of 2,500 feet between gasoline filling stations.
On October 19, 1995, Appellant filed a Notice of Appeal with the Town
of Wappinger Zoning Board of Appeals for a variance from Article IV
Section 440.3.1 of the Zoning Ordinance of the Town of Wappinger, which
section mandates that no gasoline filling station shall be within 1,000
feet of the boundary line of any residential district.
The property in question is located in an HB district.
The property in question is within 2,500 feet of an existing gasoline
filling station.
,.he property in question is within 1,000 feet of the boundary line of
a residential district.
Pursuant to Article IV Section 420.2 of the Zoning Ordinance of the
Town of Wappinger, a gasoline filling station in an HB district is a
Special Permit Use.
Article IV Section 430.1 of the Zoning Ordinance of the Town of
Wappinger provides that:
"The special permit 'use' for which conformance
to additional st.andards as required by this Local
Law are considered to be permitted uses in their
respective districts, subject to the satisfaction
of the requirements and standards set forth herein,
in addition to all other requirements of this Local
Law.. ."
Pursuant to Article IV Section 430.2 of the Zoning Ordinance of the
Town of Wappinger, the Planning Board is the approving agency for all
Special Permit Uses.
2
..
DECISION
The operation of a gasoline filling station in an HB district is by
special permit issued by the Planning Board of the Town of Wappinger. An
Appellant for a special permit must demonstrate that he is in compliance
with the Zoning Law standards set down by the Town Board, and these
standards cannot be waived or modified. (Veraata v. Town of Ovster Bav,
209 A.D.2d 527; AA & L Associates v. Casella, 207 A.D.2d 1012; Matter of
Jewish Reconstructionist Svnaaoque of North Shore v. Levitan. 34 N.Y.2d
B27; Wisoff v. Amelkin, 123 A.D.2d 623). Accordingly, the Zoning Board of
Appeals of the Town of Wappinger is without authority to vary the
separation requirements set forth by the Town Board in Article IV Section
444.6 (presently numbered Article IV Section 440.3.5) and Article IV
Section 440.3.1 of the Zoning Ordinance of the Town of Wappinger.
Given that the applications for a variance (Appeal No. 1210 and
Appeal No. 1213) must be denied as beyond the scope of authority of the
Zoning Board of Appeals, no further consideration need be given to the
factors set forth in Town Law Section 267-b.
A motion was made and seconded for a vote as to the foregoing
Decision. Said Decision was duly put to a vote on roll call, which
resulted as follows:
Mr. Joseph Howard Prager
Mr. Alan Lehigh
Mr. Gerald DiPierno
Mr. Victor Fanuele
Mr. Douglas Warren
Vote:
Vote:
Vote:
Vote:
Vote:
Aye.
Aye.
Aye.
Absent.
Abst.ained.
Dated: January 23, 1996
Wappinger Falls, New York
Joseph Howard prage
o ing Board of Appeals
own of Wappinger
Chairman
swo~ to befoF on this
c!J6 day of , 1996
~~ 'oY\ ~
Notary Public
.U;';'!1!l. M. Ul !C;f;l
Nc~ary PubliC, Si.ate of New York
No. ~381720
Cua!!f:ed lrl Dutches~ CounlV f.~
tcmm!ss!o" E.>:pires 10/31/19
3