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328 .j , ZONING BOARD OF APPEALS ~CEIVED TOWN OF WAPPINGER ~.vl JUL 281976 ACTION ON APPEAL Appeal No. ...........3.l~............... Dated ..xu~...28~....~9.76 " ELAINE H. SNOWDEN Volino .Driv. Appellant -......,J..llk...Dauu...l!.D4................_.................................-......... Address..,..........~.c.l.ft.ap:&..ll:t.. 9 ....................................Chmg...J,....J.M~....b~.f.~....y.~~.J:!YI.....!'-.~.~.!................................~!RIL...g!!.!....r!.~.!!.!.....~ At a meeting of the Zoning Board of Appeals on .................................JlllJ,'....2.Qth.........................................., 19...1.1..) Appeal No..........328........ was considered and the following action on the request for: ~ A VARIANCE, o A!~~~~(]J AN INTERPRETATION OF THE ZONING ORDINANCE, o 1!N-~ Alf X'GeInFtJ~~!~, was taken: I. VARIANCE: By resolution of the Board, it was determined that strict application of the Ordin- nce o would 0 would not produce undue hardship for these reasons: a. The property in question 0 would 0 would not yield a reasonable return if limited to the use permitted under the Ordinance, because: .................................................................................................................. .u..............................................................................................................................................................................................................._................ b. The hardship created 0 is 0 is not unique and 0 would,D would not be shared by all properties alike in the vicini.ty of the property and in the same use district, because: .............._.. .....~.. .................................................................. ....................... ...-............................................................................................................................. . . -..................................................................................................-..................................-...........................-...........--.-...........--............................ . .-- "..j" c. The variance 0 would 0 would not change the character of the district, because: ..................... .....--......................................................................................... .....................................................................................-.--....................--.-,,-- .."""""""......."....."...."".......,,.....,,.................,,_..................u....._........ .................................................................u.."......................................................... Therefore, it was further determined that the requested variance ~~IlCl.(~be denied and that the previous decision of the Enforcement Officer [}be confirmed B~.~'MF.- * PLEASE SD Aft'ACBBn SBEB'f Speci mit 0 be granted 0 be denied, pursuant to article ................... Ion or subsection ....................., paragraph .................... ......... of the Zoning Ordinanc ere fore, the decision of the En- :Eorcement Officer 0 be reversed 0 be c ....................................................................................................................................................................-....-...-.....-.......-...........---.-.-.... 3. INTERPRETATION: The Board adopted the following resolution which stated its interpretation of the Zoning Ordinance as requested in your appeal: ............................................................................................................ PLEAD SD AftACllBD SBEB'I ...............................................................................................................................................................................................................................................-- ...................................................................................................................................................................................................................................................... .............................................................................................................................. .................................................................................................................... 4. ap.~~(S).,:Y.=~I,.ti:~.~f.th....~.th~~...: ~~=~.............................................................:.... --- =~~..m...==-==~::.~ ......~~;;,~fi!tl~~fApp~;i~m....._.. ,- ZONING BOARD OF APPEALS TO\VN OF V/APPINGER NOTICE OF APPEAL Appeal No. .....p...~....rt.....- Date ......5"/..12/2..6.... I. PROVISION(S) OF THE ZO;\ING ORDINANCE APPEALED ......................................,.......................... Art. IV s.423 Paragraph Dist. l-B (indicate ._..un............ ...................... ................ ."___0'''0 '0"" _. ......._ u.' 0" 0....... 0... ..........._ _._ ............... ._. ........... ...... ..u..u........ ....... ....... ......... .... .......... ........ 0.. .............. ...... ,.,. ........ article, section or subsection and paragraph) 2. TYPE OF APPEAL (Complete relevant section).* a. A VARIANCE IS REQUESTED for the following reasons; I) Strict application of the Zoning Ordinance would produce undue hardship because: SEE RIDER 2) The hardship created is unique and is not shared by all properties alike in the immediate vicinity of this property and in this district because; SEE RIDER 3) The variance would observe the spirit of the Ordinance and would not change the character of the district because: SEE RIDER b. A SPECIAL USE PERMIT IS REQUESTED pursuant to article ..................) section or subscc, tion ..............................., paragraph ....................... of the Zoning Ordinance to permit the following use on the abo"te premises: c. INTERPRETATION of the Zoning Ordinance is requested because: SEE RIDER d. AGGRIEVED PERSON(S) an appeal is requested because: 3. OTHER REMARKS: .......,...................................................... ...................................................................................... . . ........-............................................................................................ (Use extra sheets if necessary) Sigruture.R............1... ....R...L......... ..(?..f . . ona .. ev ne, ~.......... * Tk reqUIred plan must accompany the l\otice of AppeaL for Appellants, Jack Davis and Chemical Bank Hudson Valley, N.A. ..: \ APPEAL # 328 -2- July 28th, 1976 The request for variance is denied on the basis of the following: 1. The site plan approval granted to Mr. Jack Davis, dated August 22nd, 1974 specifically stated "6. Size and location of all signs must be approved by the Zoning Administrator. II Approval for the sign was not granted by the Zoning Administrator. 2. The building permit issued on September 16th, 1975 made no mention of a sign stanchion foundation being approved nor was said sign stanchion foundation shown on the building plans. The building permit was issued solely for the construction of the bank building. with regard to the request for interpretation, the Zoning Board of Appeals considers the site plan approval to be an extension of the provisions of the Zoning Ordinance and that the Appellants were bound by this requirement. ./ RIDER (1) Strict application of the Zoning Ordinance would produce undue hardship and practical difficulties because: (a) The foundation of the sign has already been constructed pursuant to an approved building permit and would subject applicant to additional unreasonable cost if removed. (b) The sign was purchased and maufactured pursuant to the .1>proved building permit and in reliance upon the silence of the Zoning Law as it pertained to an HB2 Zone and \fOuld present an unreasonable cost if approved. (c) The property line on tbe site bears no relation- ship to the actual distance from the intersection of Middlebush Road and Route 9 due to the unusual amount of land appropriated by the State of New York for its right of way. (d) Virtually the entire site has been utilized by applicant for compliance with the traffic pattern and parking requirements of the Zoning Ordinance and Planning Board. No other area of unused land on-site is appropriate for a sign. Undue hardshi~ would be created by the forced location of the sign over 100 feet" from the road. . <e) The spirit of the law is not violated because of the actual distance of the sign from Route 9 and Middlebush Road. (f) There is no violation of the side line restriction in the Ordinance since the baae of the sign is over 10 feet from the Route 9 boundary line. (g) Were it not for an unusual jog in the boundary line caused by the State appropriation for right of way purposes the sign would be 75 feet from the front line of the property and would not violate set-back requirements. (h) Location at the southeast corner of the property is essential for identification from all four directions. (2) The hardship created is unique and is not shared by all parties alike in the immediate vicinity of this property and in this district because: (a) Tlle hardship is not self-induced since the Building Inspector has already issued a building permit which included the location of the sign. (b) The strict requirements of this district are inappro- priate considering the actual location of the property. (c) There is no prohibition against a four (4) faced sign in any part of the Zoning Ordinance. (d) There 18 no limitation on the number of signs per project in the Ordinance. (e) nle property is substandard because of its narrow width. (f) The purpose of the Zoning Ordinance has been achieved (See Matter of Suffolk, 48 Misc 2d 39, 42, 43 (1965) which provides as follows: The most obvious and least costly medium would be an application for an area variance. Under the special circumstances of the instant case it is rather unlikely that the village would deny such an application. The acquisition by the county having been for the installation of under- ground drainage facilities it would appear that the purpose of the setback restriction of prohibiting overground building on the land which was taken has been achieved. (3) The variance would obaerve the spirit of the Ordinance and would not change the character of the district because: (a) The area of the sign visible by one person at any one time is only 1/4 of the total area. It is relatively low in height (9 ft.) and i8 simple, dignified, and not garnish or obstrusive. It is internally illuminated making no glare or intense light. (b) The location of the 8ign is actually further away from Route 9 than the boundary line due to the State right of way. (c) The district in question is adjacent to the largest and most heavily traveled highway in the Town at one of the most heavily traveled intersections. .. (c) TlmRE IS NO PROHIBITION AGAINST SIGNS IN AN HB2 ZONE PROVIDED FOR IN THE WAPPINGER ZONING ORDINA!fCE AND THIS BOARD HAS NO JURISDICTION OVER Tlffi APPLICANT The Zoning Ordinance ~rovidBs the schedule of business and industry District uses in 8.423. The first district dealt with is LB (local business). tInder permitted accessory uses signs are provided for in subparagraph (b): Signs pertaining to a permitted use conducted on the lot where such signs are displayed, provided such signs do not face any lot line of any adjoining lot in a residence zone if within 50 feet of said lot. Signs shall not exceed 2 square feet, for each linear foot of building frontage, or a maximum total area of 100 square feet, and shall not project into any street. Free standing or temporary signs shall not exceed 25 square feet in area and shall be located at yard setback lines. A review of s.423 indicates that the sign requirements of LB districts are picked u~ in District GB (general business) and District AI (airport industry). A reading of the provisions of the HB2 district reveals no similar language. In fact the language pertaining to RB2 provides the following PERMITTED ACCESSORY USE: Accessory uses that are customarily incidental and subordinate to a permitted principal use. It is 'mIl settled that a sign is a use customary incidental and subordinate to any of the permitted principal uses provided for in both ItB districts. As the decision of the Court of Appeals in Matter of Cromwell v. Ferrier 19 N.Y. 2d362,270(1967) stated: II' "The business sign is in actuality a part of the business itself, just as the structure housing the business is a part of it, and the authority to conduct tho husiness in a district carries with it the right to maintain a business si~n on the premises subject to reasonable regulations in that regard as in the case of this ordinance. II I suhmit that no possible reasonable interpretation can be had to include the l.ocal 'Business siJl:11 requirement as part of an 11'82 zone. The zoninR ordinance, when silent, is construed strictly agAinst the municipality. In this case the sign requested, being a lir.itamate customary incidental and subordinate accessory use is clearly allowed 8S a permitted accessory use and may not be prescribed under the LB language of the ordinance.