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APPEAL
DATE t/ )f,,/ : 19 (,
TO~-;-VtL0<GE OF Ij\S\;i;'~'..'/)NEW YORK
n _.~~/.--'f (;:'''~-;-) flu'.); I--.~.J..., .
(street and Number)
q HEREBY APPEAL TO THE ZONING .
APPEJ..L NO. (",
TO T~ ~gNI~9 B9A~: qr .APPEALS, .
I (we )\~ ',:--",{/'." In ~ \ .i )..j!1v...;J-v--'<..,....<of
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v (~~ni~ipality) (state)
BOARD OF APPEALS FROM THE DECISION OF THE ENFORCEMENT OFFICER
ON APPLICATION FOR BUILDING PERMIT NO ,DATED ,19
WHEREBY THE ENFORCEMENT OFFICER DID
( ) GRANT
( )DENY TO
(Name of Applicant for Permit)
OF
9 .
(street and Number) Municipality)
( ) A PERMIT FOR US'E
( ) A CERTIFICATE OF OCCUPANCY
( ) A SPECIAL USE PERMIT OR EXTENSION THEREOF
( ) A CERTIFICATE OF EXISTING USE
State
,
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Location of the Property, Street and Number or other Identificat-
ion
(Use District on Zoninq Map)
2. PROVISIONS(s) OF THE ZONING ORDINANCE APPEALED. (Indicate
the Article) g
sectiong Subsection and Paragraph of the Zoning Ordinance
being Appealedg BY NUMBER Do NOT QUOTE THE ORDINANCE.
3. TYPE OF APPEAL, Appeal is made herewith for:
~1 AN INTERPRETATION OF THE ZOmJlNG ORDINANCE
OR ZONING MAP
.,~./-';'!;:.'"l.. VARIANCE TO THE ZONING ORDINANCE OR
",-'-y ZONING MAP
( ) SPECIAL USE PERMIT TO THE ZONING
ORDINANCE OR ZONING MAP
4. PREVIOUS APPEAL. A Previous APpeal}<) Hasg ( ) HAS NOT
:'::'_..EN MADE WITH RESPECT TO THIS DECISION OF THE ENFORCEMENT
~BFICER OR WITH RESPECT TO THIS PROPERTY. SUCH APPEAL (s)
WAS (WERE) IN THE FORM OF )1") A REQUESTED INTERPRETATION,
( ) A REQUEST FOR VARIANCE, ( ) A REQUEST FOR A SPECIAL
USE PERMIT AND WAS (WERE) MADE IN APPEAL NO._, DATED
19
5. REASON FOR APPEAL. (Complete Relevant Blank. Use extra
sheet if necessary)
a. INTERPRET~,~N Pf.T " ~~N9[~RDIN~9~ !S. ~E~~STED __
.,' . -:.J- Because: ~~Xt.e,..- eLf.. '-i'-<rfi/-:"2-,{Z-f/-/"~, N!f."/'....'//~:., I ~r~
,N..v~ (>.-d.~+'~"~". (r...k~""~:~ q 1 [.~, v J...<: ry",..d/ -t-t./'tv. 'I.< ..)..--"'{." '"!-o-''\..C>,,,,-?2,vv:iJ...,.;..I''<:At.. __ ,-;I. -i............v~~_"'". ~,.1,{
B. A VARIANCE TO 'I;~~ ZONING o~"J;NANcE., I~REQUESTJ;:D F.or~--- .. ,\
these reasons: ~//'V'c""~'..1,.""'''''''~~U' ~~ t:{;to.-'-'"A (.c-C~(~ '~Y4~OJ
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(All Reasons must be answered) 0.tL.~t.-J P'~ it<.;;
(1) TTHE,,)PROPERTY IN QUESTION WILL NOT YIELD A /quCJ
REASONABLE RETURN IF DEVELOPED WITHIN THE
REQUIREMENTS OF THE DISTRICT WITHIN WHICH
SITUATED BECAUSE:
(2't'r!m".~~SHIP CREATED"-!S UNIQUE F..ND IS NOT SHA.~ED
BY ALL PROPERTIES ALIKE IN THE I~~DIATEVICINITY
OF THIS PROPERTY AND IN THIS USE DISTRICT BECAUSE
(3)THE VARIANCE WOULD NOT CHANGE THE CHARACTER OF
THE DISTRICT BECAUSE:
C.A SPECIAL USE PERMIT TO THE ZONING ORDINANCE IS
WE, the undersigned, do hereby petition the Zoning Board of
Appeals, the Town Board, and the Building Inspector, to enforce Section
416.02 C of the Zoning Ordinance*, in regard to the proposed construction
of Apartment Building #4 at Fleetwood Manor:
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. Wappingers Falls, New York
May 17, 1963
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*(Section '416.02 C reads as follows: "Non-conforming use
of land where no building is involved, the non-confo~Ling
use of land may be continued, provided however: C. That
if such non-conforming use of land, or any portion thereof,
Ceases for any reason for any continuous period of more
than thirty (30) days, or is changed to a conforming use,
any future use of land shall be in conformity with the
provisions of this ordinance.")
Yffi, the undersigned, do hereby petition the Zoning Board of
~Doeals, the Town Board, and the Building Inspector, to enforce Section
416.02 C of the Zoning Ordinanceifo, in regard to the proposed construction
of Aoart ont Building #4 at Fleetwood Manor:
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Wappingers Falls, New York
May 17, 1963
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*(Section 416.02 C reads as follows: "Non-conforming
use of land where no building is involved, the non-
conforming use of land may be continued, provided
however: C. That if such non-conforming use of land,
or any portion thereof, ceases for any reason for any
continuous period of more than thirty (30) days, or is
changed to a conforming use, any future use of land shall
be inconformity with the provisions of this ordinance.")
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Wappingers Falls, New York
May 17. 1963
WE, the undersigned, do hereby petition the Zoning Board of
. Appeals, the .Town Board, and the BUilding Inspector,. to enforce Section
416.02 C of the Zoning Ordinance*, in regard to the proposed construction
of Apartment Building #4 at Fleetwood Manor:
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*( Section 416.02 C ~ads as follows: "Non-conforming use
of land where no b~ilding is invoived, the non-conforming
use of land may be continued, provided however: C. That
if such non-conforming use of land, or any portion thereof,
ceases for any reason for any'continuous period of more
than thirty (30) days, or is changed to a conforming use.
any future use of land shall be in conformity With the
provisions of thi S ordinanc.e.")
WE, the undersigned, do hereby petition the Zoning Board of . .
~ppeals, the Town Board, and the Building Inspector, to enforce Section
416.02 C of the Zoning Ordinance*, in regard to the proposed construction
of Apartffient Building #4 at Fleetwood Eanor.
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*( Section 416.02 C reads as follows: "Non-c on forming use
of land where no building is involved, the non-conforming
use of land may be continued, provided however: C. That
if such non-conforming use of land, or any portion thereof,
ceases for any reason for any continuous period of more
than thirty (30) days, or is changed to a conforming use,
any future use of land shall be in conformity with the
provisions of this ordinance.")
...I
"
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Osborne Hill Road
Flanklll, New York
March 9, 1963
.
Mr. Joseph E. Ludewig
Hopewell Junction ~oad
Wapp1ngers Falls, New York
Dear Mr. Ludewig:
Thi s 18 tter 1s regarding the proposed apartment
bu1ld1ng by Anthony Gallo, a bu1lder, on usborne Hill Road just
south of Fleetwood Drlve.
When he app11ed for perm1ts to bu1ld t.is apartments, -
he had the approval of the town board to bu1ld same at the corner
of Ketchamtown and Osborne H11l Roads only, and 1 t was necessary
for h1m to presen~ blueprlnts and developlng plans before 1t was
f1nally approved.
About one week prior to the date zon1ng took effect,
he applled for and wa.s g1 ven a perm1 t for Apartment Hou sa 1J4,
on a d1fferent plot of land completely separated from the or1ginal
s1te approved by the board. Yr. Thornton told Bob Kearns that
when he, Thornton, 1ssued the perm1t for Apartment House 14, he
thought 1t was part of the or1g1nal bu1ld1ng s1te and sa1d he had
no 1dea 1t was completely 1solated from the or1ginal plans.
The board never approved or even saw plans for the s1te and ~
Apartment House #4. ~. ·
Th1 s perm1 t should never have been 1ssued, as th1s area
has been deslgnated aa R-15, one-fam1ly res1dent1al. I do not
th1nk 1t is at all fair to the local taxpayers who support the
town and want 1t to be a better ccmmun1ty, to have a large, three-
story apartm~nt build1ng at the rear, fac1ng their homes.
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It was very obvlous that Mr. Gallo w1shed to beat the
date zon1ng took effect, that he hurriedly staked it out and had
a bulldozer make a few sweeps through 1t, to look as though
build1ng had begun. As of this date, there are no foot1.nga or
any sign .of' bu1ld1ng. Ser10us cons1derat1on should be g1ven before
this 1s allowed to go ,BJ?Y further. .We feel that zon1ng should
take,prece.dence ov:erabu11d1~g perm1 t ~
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Osborne Hill Road
Fishkill, New York
April 2, 1963
Mr. Kermit H. Becker
De Garmo Hills Road
Wappingers Falls, New York
Dear Mr. Becker:
In addition to my letter of March 9th regarding the
proposed Apartment Building #4 on Osborne Hill Road, just
south of Fleetwood Drive, by Anthony Galio, a builder, I
would also like to bring to the attention of the board,
Article 416.02 and Section C of the Zoning Ordinance,
which read as follows:
"416.02 Non-conforming use of land where no
building is involved, the non-conforming
use of land may be continued, provided
however:
C. That if such non-conforming use
of land, or any portion thereof,
Ceases for any reason for any Con-
tinuous period of more than thirty
days, or is changed to a conforming
use, any future use of land shall be
in conformity with the provisions of
this ordinance. II
Also, in the Town law,Sect10n 267, it is stated that
if the zoning law is the. stricter of the two, it takes
precedence over the Town law.
Some time during the third week of February last, just
before zoning went into effect on March 1st, the land was
cleared of an old barn and a few sweeps were made through it
with a bull-dozer. Since that third week of February, there
has been absolutely no activity on this parcel of land, for
which he obtained a permit for a multiple dwelling in a
de signated R-15 area, which would not be in conformity with
the zoning ordinance.
You rs very truly,
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Patrick V. Ferrante
l'
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JUDSON C. WILLIAMS
ATTORNEY AT LAW
2159 MAIN STREET
POUGHKEEPSIE. N. V.
GLOBE 4.43115
March 27, 1963
l11"s. John F. Evans, Secretary
Town Planning Board, Town of Wappinger
Hill Street
t'Jappingers Falls, New York
Dear Mrs. Evans: ,
o
This letter is 'in reply to your letter to me of March 19,
1963. written at the request of the Planning Board; and
I would appreciate it if you would transmit this letter
to the Planning Board for their information.
In your l'larch 19 letter you forwarded a letter from
Patrick V. Ferrante relative to a new apartment build-
ing being erected by Fleetwood Manor and a letter from
H. Frederick Koehler relative to Mr. Lafko' s apartment
construction, both addressed to Mr. Ludewig.
As I understand the facts in the Fleetwood Hanor situation,
Hr. Thornton issued a building pemit for the building in
question after inspecting the property, and construction
began before the Zoning Ordinance of the Town became effec-
tive. It appears that the apartment building in question
is located on a different site fram a site which was ap-
proved for apartment dtvelling construction by the Planning
Board several months ago. You report that Mr. Wiedle feels
that ~ve may have grounds for revoking the permit.
There is, of course, no question but that if the Zoning
Ordinance had been effective, Fleetwood t1anor could not
have constructed this apartment dwelling and their right
to do so, if it exists at all, depends upon Section 416.07
of the Zoning Ordinance which says that the construction
of any building which was lawfully started before the effec-
tive date of the Ordinance may be completed in accordance
with plans on file with the BUilding Inspector provided the
construction schedule mentioned in the Section is adhered to.
As far as I know, the only basis for a determination that
this building was not being lawtully'constructed on the ef-
fective date of the Ordinance depends upon the validity of
the building peromit which was issued by the Town Building
Inspector. I am reasonably certain that what Mr. lliedle
has in mind is his contention that, if a person o~ms a
tract of land, and proposes to erect on a portion of it some
structure. this act constitutes subdivision within the mean-
ing of the subdivision regulations of the Tovm; and that.
-2..
therefore, site plan approval is required. I had occasion
before to note that I have little respect for this partic-
ular theory, and I have been, quite unable to find any legal
authority to back it. It 1s, of course, always possible
that a court would sustain Mr. Wiedle's contention, but I
thinlt the odds are against it. .
If, as a matter of policy, Town' officials 'feel that the
matter is worth a court test, the proper procedure would
be to revoke the building permit on the basis that it was
illegally issued, since under the subdivision regulations
of the Tmm if Planning Board approval is required, no build-
ing permit may be lawfully issued until such Planning Board
approval has been obtained. Once the building permit has
been revoked, the .way would be clear for enforcing the Zoning
Ordinance prohibition against this kind of construction in
this place in the Town. If the Town tal(eS this course of
action, I think we can count on a court reviel,;v; and I think
the liloolihood of being sustained by the courts is small.
As for 1.lr. Lafko's apartment building Mr. Koehler makes
the point that the aforesaid Section 416.07 of the Zoning
Ordinance per.mitting completion of a building under con-
struction at the time the Zoning Ordinance becomes effec-
tive uses the singular of building. Therefore, in Mr.
Koehler's view, Hr. Lafka is permitted only to finish the
building he has started and may not lawfully complete the
complex of apartments he has planned, which complex has
been approved by the Planning Board of the Town.
Although the Zoning Ordinance 'states that words in the
singular should be 'read in the plural and vice versa when
the sense requires it, I tlrlnlt Mr. Koehler has an excellen.t
techllical point inasmuch as the Town Ordinance for enforcing
the State Building Code in Section (8-a) states that a sep-
arate building pe~it shall be issued for each building or
structure; and, therefore, the outstanding building permit
authorizing construction of the entire complex was issued
in violation of the Townts own Ordinance.
If the Town should adopt Mr. Koehler's argument, I am again
reasonably certain that the matter would receive court re-
view, since Mr. Lafko has certainly committed extensive funds
to his project. I thinlt it is anybody's guess as to what a
court "t~ould do with this particular problem, and it could
well be that a court would refuse to apply the literal lang-
uage in view of the obvious equities in Mr. Lafka' s favor.
In your ~iarch 19th letter after reporting the reaction of
the Planning Board to the problems. you relayed their request
that I reply directly to Messrs. Ferrante and Koehler.
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As Town Attorney of the Town, I conceive my job to
be that of advising the boards and officers of the
Town as to the applicable law. In the two matters
discussed above. as you can see, I am unable, and I
think any other lawyer would be unable. to prophesy
with certainty the legal result of any particular
course of action. Even assuming that I could state
with definiteness what I think the legal result would
be. the appropriate Town officials must always decide
as a matter of policy whether they wish to require
literal enforcement of the law or some other course
of action. Where the law is perfectly clear, I think
in the end Town officials will find it is to their
benefit to require essentially literal compliance.
Where the law is uncertain, as it is here, I think
policy has a,much larger role to play; and I do not
presume to make decisions that involve policy.
I think the number of instances where I should write
directly to any private indivldual should be severely
l~ited, being primarily restricted to instances where
such a letter is a prelude or a part of positive legal
action, already ordered by the appropriate town officials.
Among other reasons, it is not regarded as wise tactics
in most instances for a lawyer to make the advice he gives
a client available to the opposition.
By the foregoing I do not mean to suggest that if assist-
ance is really needed in explaining some legal point in
a letter which a Town official is writing that I am not
available for aid in drafting the letter. since I 'am.
Under the Zoning Ordinance of the Town the Town Building
Inspector and Zoning Administrator has the duty and res-
ponsibility to enforce the Zoning Ordinance. The Town
Attorney. on the other hand, has no power or authority
to enforce anything unless and until the proper body or
officer of the Town which has the authority has ordered
the institution of' legal action. Under the Zoning Or-
dinance, if the Town Building Inspector and Zoning Ad-
ministrator is uncettain as to the meaning of any partic-
ular portion of the Zoning Ordinance, he may seek an
official interpretation from the Zoning Board of Appeals
so that he may be guided in the decisions he must make.
Certainly the Town Attorney, the Town Engineer, the Town
Highway Superintendent. and all other officials of the
TOtnl must be willing to advise and consult with the Town
Building Inspector and Zoning Administrator whenever he
feels the need of advice in the areas in which these in-
dividuals have something to offer; but ultimately the
decision in matters of the kind that are the subject of
.
.... ... or
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this letter rest with Mr. Ludewig, subject only to the
requirement that before he may authorize legal action,
he must secure the prior approval of the Town Board.
. Let me also point out that if the Town fails to take
legal action against someone,who it is all-eged, is
violating the Ordinance, any person who is aggrieved
by the alleged violation of the Zoning Ordinance may,
if the TOvm takes no action, proceed directly at his
~Nn cost and expense to bring court action to enforce
the Ordinance. It is always well to bear this provision
in mind in dealing with complaints from residents of
the To\~ of failure to act against alleged violators.
Accordingly, I am returning to Mr. Ludewig the originals
of Mr. Koehler'a.and Mr. Ferrante's letters.
Very truly yours,
Jew: lc
cc: Mr. Joseph E. Ludewig, Sr.
Supervisor Richard H. Linge
Mr. Kermit H. Becker
SUPERYIIOOR
TOWN CLERK AND COLLECTOR
SUPT. 0" HIGHWAYS
RICHARD H. LINGE
HELEN L. TRAVIS
KENNETH CROSHIER
TOWN CLERK'S OFFICE
MILL STREET
.IUSTICE 0.. PEACE
VINCENT FRANCESE
WILLIAM BULGER
TOWN OF WAPPINGER
WAPPINGERS FALLS, N, Y.
A.BEeSORS
COUNCILMEN
GEORGE A. ROBINSON
"'ALCOLM I. HAlT
O.....CE HOURS
KENNETH THORNTON. CH.
.lOSEPH FULTON
STANLEY RIES
It A..... TO 12.80 1.80 TO 4 P. M.
TOWN ATTORNEY
.lUDSON C. WILLIAMS
.April 9, 1963
Mr. Patrick V. Fer~e
o sbo me Hill !load
Fishkill, New York
Dear Mr. Ferrante:
t This is in reply to your letters of Uarch 9, 1963 and .April
2, 19~. .u you know, your letters were discWlsed with the Planning J30ard,
the Board of .Appeals and our Town Attorney. Our at~rne;y has reviewed the
matter and on March 28th returned your letter to me. The Town Board also re-
ferred to' me your letter of April 2nd, addressed to it.
In checking over the background of this case I find that
Gallo Brothers requested approval for apartment bo.ildings as early as July 2,
1962. At that time the Planning Board had nO jurisdiction over apartment
buildings, but did review the plot plans and suggested some changes in drive-
wag layout, which Gallo Brothers adhered to.
Prior to the adoption of the Town of Wappinger' ZOning Ordi-
nance, the Town of Wappinger Ordinance for Mministering and Enfo rcing the
State Building Construction Code was in force. Under the provisions of that
Ordinance, a builder has six =nths from date of issuance of.permit to begin
wo rk in &Ceo rdance with the approved plans and specifications.
Based on rrq study of the history of this project, I feel
that the building to which you object has been lawfully started, and 'IlJEq be
completed &coo rding to the plans approved.
Yours tr0J:3:J ~ _ "
(}~.t ~d
(J ~.(4iIlg Inspeot. r - ~n1Znspeoto r
. Town of Wappinger
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IS REQUESTED
SUBSECTION
ORDINANCE,
, SECTION C-
OF THE ZONING
?~~
'\;: ~/1A\:t.QJ/l'~
'\ ~ SIGNATURE
SU'fE,~OF NEW YORK )
) 55
COUNTY OF DUTCHESS )
Sworn to this
DAY OF
19----
NOTARY PUBLIC
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ACTION
TO")*'~""-:'i:':':'."': .fI. .7... <\':'./,,~YA APPELLANT
SUBJECT: ACTION OF THE ZONING BOARD OF APPEALS OF ~;''''l':;',!,.:'':' ":""': ;":~
NEW YORK
REFERENCE:_ APPEAL NO. 6 DATEDj't,trrl1 Hi. , 19 G)
AT A MEETING OF THE ZONING BOARD OF APPEALS ON ":"1'1 ~'1 ,19 t;;
.
THE REFERENCE APPEAL WAS CONSIDERED AND THE ACTION INDICATED BELOW
WAS TAKEN ON YOUR:
(X) REQUEST OF AN INTERPRETATION OF THE ZONING ORDINANCE
( ) REQUEST FOR A VARIANCE TO THE ZONING ORDINANCE
(( ) REQUEST'rFOR A SPECIAL USE PERMIT TO THE ZONING ORDINANCE
~. INTERPRETATION. THE BOARD ADOPTED THE FOLLOWING RESOLUTION
WHICH STATES ITS INTERPRETATION OF THE Z NING ORDINANCE AS RE_-
QUESTED IJI YOUR APPEAL /) r..<~{;'';\L~;.L7<if'2ir1'lrfj~L-
(USE EXTRA SHEETS WHERE NECESSARY)
2 0 VARIANCE. BY RESOLt1,I'ION OF THE BOARD, IT WAS DETERMINED THAT
STRICT APPLICATION OF THE ORDINANCE WOULD ( ) WOULD NOT ( )
PRODUCE UNDUE HARSHIP FOR THESE -REASONS:
Ao TH,E PROPERTY IN QUESTION WOULD ( ) WOULD NOT ( )
YIELD A REASONABLE RETURN IF LIMITED TO THE USE PERMITTED
UNDER THE ORDINANCE, BECAUSE
Bo THE HARDSHIP CREATED IS ( ), IS NOT ( ) UNIQUE AND
WOULD ( ), WOULD NOT ( ) BE SHARED BY ALL - PROPERTIES ALIKE
IN THE IMMEDIATE VICINITY OF THE PROPERTY AND IN THE SAME
USE DISTRICT, BECAUSE:
Co THE VARIANCE WOULD ( ) WOULD NOT
CHARACTER OF THE DISTRICT, BlCAUSE:
( ) OHANGE THE
THEREFORE, IT WAS FURTHER DETERMINED THAT THE REQUESTED
VARIANCE BE GRANTED() BE DENIED ( ) AND THAT THE PREVIOUS
DECISION OF THE ENFORCEMENT OFFICER ~ CONFIRMED ( )
BE REVERSED (, ).
3. SPECIAL USE PERMIT 0 BY RESOLUTION OF THE BOARD IT WAS DETERMINED
THAT S PECIAL ~E PERMIT BE GRANTED () BE DENIED ( ) ?
4/ PURSUANT TO ARTICLE , SECTION , SUBSECTION
PARAGRAPH of the ZONING ORDINANCE, AND THE DECISION OF
THE ENFORCEMENT OFFICER BE REVERSED (Ol BE CONFIRRED ( ),
BECAUSE:
,
(SImmD)
CHAIRMAN, ZONING BOARD OF APPEALS
~
TOWN OF
'~,.\?? 1NG~