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638 parceJ # 6257-04-816023) ~ ~E'VF.:fiJ~U0:G BOARD OF APPEALS iDEe 1 198' iTO\ii/N OF \VAPPINGER Z Aro--.- "N O"\.~ \ nI"-~ ,~ I.Jl11.l1 ~..; iU',....t.ll..L ELAINE H. SNOWDEN App:.:al No. .........63.8.............. Dated P?q.~.r:r:\p..~X.),$.t,... 1982 , .Ap~:;:.!hnt .. .1?R.t.;r..tCts....F...,.....Sp:l;:.Q$s..... ................................... Ad::::-css....For..es.tv.ie.v...Dxive.......... . .... ..... ,...w.0P'p.i.ng .~T~.....F.g.1J.$... .....NY........12.5..9.0.............. A r l meeting of the Zoning B02.rd of Appeals on ........................No.v.emher...3.Q.th................................., I 9c32. , Ap?::d 1'0.....63.8........... was considered and the follow;;-"g action 0;[ t~e request for: k)1A VARIA-:\CE, tJ'A-::~;:PEc:t.tL USE PERMIT;@ AN INTERPRI:TATIO~ OF' THE ZONI~G ORDlhA:\CE} EJ :'r'N A.:PPEAFFltSr\:P1=A88-lHEVED=P.F;RSG~{S}, was take,,; 1. VARL\-:\CE: By resolu~;on of tk~ B02.rd, it was determined th::: strict application of the O;-c;,,:,:;ce o \vould 0 \voule! not produce undue hardship for the.se re:1S':;:',S: a. The property in question 0 would 0 ,,"auld not yield ?~ :-easonable return if limited to the use permiw..-d under the Ordinance, because: ......................... ............_.h..._.......................................................................................................................... b. The hardship created 0 is 0 is not unique:: and 0 ,voc;.!d 0 would not be shared by all properties alike in the vicinity of the property and in the same use district} because: .. ..........................................................................................................,......................................-................................................................................ ...............................................................................................................................................................................................u...............h................. c. The variance 0 would 0 would not change the charaw::r of the district, because: ..................... h................................................................................................ ........................................ ......................................................~........................-..... ................................................................................................... ....................................... ...............................................................................-...-. Tnerefore, it was further determined that the reqtKsted \':1[i:.:-.\:e €ll-Y';;'f;1':Wkd::-[2g be denied ,end that the previous decision of the Enforcement Ofrlca lZJ be c(,;;5rmed [5bb~-~'l:t~.~~'-d--;: PLE..i\S:::; SEE ATTi\CS\1E:t~'I' . 2. SPECIAL USE PERl\JIT: By resolution of the Bc;:rd it W2.S d~termined that the request fo:- a Special Us~~ Permit 0 bc gra.nted 0 be denied} pursu:lnt to 2.r~:(k .} section or subs::ct:on ...h.............., paragnph .................................... of the Zoning Ordinance and} therefore, the decision of the En- forc~ment Officer 0 be reversed 0 be confirmed} because: .h..... J. INTERl)RET:\ TION: The Board adopted the hllowing rc;;obtion which stated its interpr;;:at~on of the Zoning Ordinance as requested ill your appc:d: .....I?1E.A.SE.S:f'.;E....b'I.'.'r.A.c.:JIM:f'.;,N'I.'........................... ...................................................................................,............................. ...........................................:....................................... 4-. AGGH.IEVED PERSON (S): By resolutio!1 of th::: lio:trclJ tk f)Jlowing decisiun \Vas nude on your ~?peal : :::::.:..:.....:.:.::::.. .H.....~....H.. ;1.:.::.:...........: />?/:~5..:;:::1~;:~.::::.....::..::...........~..~........... I'" ! r /.... / /i' /I tiA /1,+/...! "o'" l/! .J';".-;..'7.I ....;/ . ..:.-..-.....-.-- / .' 'v v';,; .,. 7-'>' L.........- .....~.,.~.'-"'" ................... ....... ................. .................. :€,..tnlrm""':) Zoning Board of App~:t1s Chairperson, Appeal # 638 -2- December 1st, 1982 .- At a spe('ial meeting of the Zoning Board of Appeals held on November 30th, 1982, Mrs. Waddle read the Board's findings and a motion was then made by Mr. Cortellino, to deny the requested variance. The motion was seconded by Mr. Landolfi. Vote: Mrs. Waddle - aye Mr. cortellino - aye Mr. Urciuoli - aye Mr. Caballero - aye Mr. Landolfi - aye The motion was carried. Said findings are attached. ...-"-'\ A"., /' /.) kcf"'''' "r /. l #. /' ./,! / /'l ~ /., "'J' '- .-{J ,4; (/: ./' ,. /' ~.v' _~'1 ~ l~. ---. (.,. ..,'. ., ? l .,-C-. .. I" //..., .../t./:'.....:/ .~ .C~A" ". /! / '-..' 4'~C/ ""~ ~,_;.'-__ ...~. /'..~ v ~'" "-'.......,.....-.....- . .- '.; ~ . (Mrs.) Carol A. Waddle, Chairperson ZON~NG BOARD OF APPEALS TOWN OF i'JAPPINGER -----------------------------------x In the Matter of the Application of PATRICIA SPROSS for (1) An interpretation of the zoning ordinance, and (2) A use variance -----------------------------------x FINDINGS OF FACT Applicant on December 31, 1981 purchased a 3.6 acre parcel of property containing a residence and accessory building. The residence is located in an area zoned R-40 and at the time of purchase by applicant, the only permitted use was for a one-family residence. No allegations are made that any non-conforming use existed at such time. Prior to the purchase, the accessory building had been first used as a stable (constructed in the 1960's) but apparently without first obtaining the necessary building permit from the Town of Wappinger Building Inspector, it was converted in the late 1970's to another use, namely that of a second residence for a prior owner. The building is approximately 23 feet by 30 feet in size, is supplied by water from the main house and is presently occupied for an indefinite term by a friend who is not paying rent. The building has both a phone and electricity, the former in the name of the present occupant. The guest house has an "eff iciency kitchen," a full bath, a living room and a bedroom. A second flo;:)r bathroom and bedroom has bN:!n added by applicant. The building is located 225 feet from the residence. A separate mailbox as well as separate utility lines serve the building. The building, contrary to applicable health regulations, does not have a septic system and . has only a cesspool. The land in question is encumbered by restrictive covenants, i :cluding one that establishes a minimum size for any "bungalow or house" on the premises. The huilding size is less than the size prescribed by the covenants. AS TO THE REQUEST FOR AN INTERPRETATION The threshold question raised by the appeal of applicant is whether the guest house as presently situated on the applicant's premises and containing a full kitchen is a permitted accessory use under the provisions of the town's zoning ordinance, which permits a guest house as an accessory use. In resolving such a question of interpretation, a finding must be made that the guest house, containing a full kitchen, as an accessory use would be clearly incidental to the permitted use or residence and further, a finding must be made upon ~ showing of proof by the applicant that it is customary within the town or area for guest houses to have full kitchens. The zoning Board of Appeals previously determined, upon application of another single-family owner who wished to estahlish a separate kitchen within a guest house in a single-family zone that such use was not a permitted accessory use under the zoning ordinance of the Town of Wappinger. The board observed that zoning for a single-family residence would normally connote the presence of only one full kitchen for a single family (appeal of Montfort, decision dated July 14,1981). The presence of only one kitd:cn is customary in a single family occupancy circumstance. A guest house is for transients who are visiting the occupants of the principal residence and who as guests would avail themselves of the facilities of ~hat residence, including but not limited to kitchen and meal facilities. The configuration of a guest house, as a use subservient to the principal use, would not be that similar to the principal use. The building occupied as a guest house by applicant is so similar to the principal residence as to be functionally indistinguishable from the principal use. Such does not constitute a guest house; instead, a second one-family dwelling has been created. AS TO THE REQUEST FOR A VARIANCE In the alternative, applicant seeks a use variance, contending that a hardship will be occasioned if she is not permitted to use a kitchen in the guest house, that the circumstance is peculiar to her property, and that the character of the neighborhood would not be affected if the va~iance were granted. No proof has been submitted that financial hardship will be occasioned if the use variance is not granted. The only financial testimony or evidence presented on the issue of the use variance was ttlat of the value attributed to the guest building alone. There is a complete absence or failure of proof as it attaches to the parcel when viewed in its entirety. As the use in question is one conceded to be an accessory use by the applicant, it is inappropriate to premise a finding of hardship solely upon an accessory use when there is no showing of deprivation of the principal use. There is also no showing of deprivation of the accessory use without the use of a kitchen which would result in a hardship. The evidence is to the contrary. Applicant's own testimony, to the extent deemed credible, shows that applicant purchased the entire parcel in 1982 for $87,000. At the time, the property was appraised at $95,000. Applicant's witness Balinger testified that the decrease in value of the guest house absent the kitchen would be approximately $3,000 to $5,000. In view of the purchase of the property at a price substantially less than the appraised value, no basis for a finding of financial hardship exists upon the evidence presented. The evidence as to the cost of subdivision is found to be incredible. Applicant has failed to substantiate the manner in which she arrived at the cost of the same, and it can only be concluded that substantial costs would include the cost of the septic system which presently does not exist for the building and which would be necessary for legal occupancy of the premises irrespective of subdivision. Consideration. has also been given to the fact that at the time of the purchase of the property, applicant may have been unaware of the fact that the building had been illegally converted from its prior use as a barn to its use as a guest house without the requisite certificate of occupancy. Such factor alone, however, cannot be the basis for granting of a variance as lack of knowledge cannot, by itself, form a basis for converting an illegal use to a permitted use. In this circumstance, where there is not a sufficient showing of .inancial hardship, the absence of such knowledge is insufficient-to overcome the general rule that a self-created hardship precludes the granting of a variance. The question of a self-created hardship also become relevant when viewing the restrictive covenants which encllmber the property. One oE the restrictive covenants encumbering the property limits the size of any house or bungalow on the premises to that equal to or in excess of 24 feet by 30 feet. The sole testimony at the hearing as to the size of the house indicated that the size of the premises or buiding in question was 23 feet by 30 feet. Under such circumstances, applicant had constructive notice of facts suggesting that occupancy of the premises as constructed could be unlawful or in violation of restrictive covenants. Such would diminish the viability of any claiill that the rule of self-created hardship should be waived. In view of the failure of proof as to the first element of the three-fold test for granting a use variance, consideration of the second and third elements are moot and academic.