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Decision :" ZONING BOARD OF APPEALS TOWN OF WAPPINGER, NEW YORK DECISION In the matter of the appeal #1142: Vincent Cappelletti, 37 Hillside Trait, Mahopac, New York, 10541, regarding property located in an HB zone in the Town of Wappinger on Old Hopewell Road and Route 9, identified by tax map grid #6157-02-610544: At a meeting of the Zoning Board of Appeals, held on March 23 , 1993, at 7:30 p.m. at Town Hall, 20 Middlebush Road, Wappingers Falls, New York: PRESENT ABSENT Joel Sasser, Chairman Mi c ha e 1 Hi r ka 1 a Al an Lehigh James Brooker William Bitterlich A motion was made by Mr. Bitterlich and seconded by Mr. Brooker. WHEREAS, the applicant has requested a variance from Article IV, S. 446.815.1 of the Town of Wappinger Zoning Law which requires a minimum lot size of 5 acres for a used car/automobile sales lot, to permit such special use on only 0.55 acres; and, WHEREAS, applicant has also requested variance with respect to Article IV, S. 422.25 requiring 200 foot lot depth in the HB district; and a variance from Article IV, S. 422.25 requiring- 50 foot front yard in the HB district; and, WHEREAS, a fter due and proper noti ce, a Publ i c Hearing was hel d on December 15, 1992 and concluded on January 26, 1993; and, WHEREAS, a previous application on precisely the same facts, ci rcumstances and i.ssues had been made and deni ed by this Board by Decision and Order dated April 15, 1992; and, WHEREAS, all testimony has been carefully considered and the following pertinent facts noted: ~~c -1.04> ~~ ~<.,~ t/ ,> ~<) O'1--~ ~ ~1'. ~ ~~~a '1)'-1" ~1- .' 1. The subject property is located on Old Hopewell Road and Route 9 and is approximately .55 acres in size. 2. The exact same application for variance was made by the applicant's predecessor in interest, R.F.V.C. Enterprises, Inc., and that prior application was denied by this Zoning Board of Appeals by Decision and Order dated April 15, 1992. 3. In an HB zone, a used car/automobile sales lot is allowed only by Special Permit of the Planning Board pursuant to Zoning Law SS 430.440 and subject to the additional standards set forth in S 446.815, among which is minimum lot size: 5 acres. 4. No new information has been presented by the applicant. Accordingly, the present application is barred by the principles of res judicata and collateral estoppel since this exact same application was denied by Decision and Order of this Board dated April 15, 1992. Indeed, as stated in Knight v. Ame1kin, 68 NY 2d 975 (1986): II A decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious. II Thus, this Zoning Board of Appeals is bound by its prior Decision and Order herein. 5. As a matter of law, this Board can not grant an area variance for Special Permit Uses. Matter of Krad1e v. Zoning Board of Appeals, 121 AD2d 447 (2nd Dept., 1-g86). Indeed, even if such an absolute prohibition did not exist as a matter of law, variances with respect to special uses at minimum warrant a higher degree of scrutiny. The present application would thus be denied for all the reasons set forth above. 6. Moreover, even if the present application had not already been decided, it is noted that the following facts would deny the re~uested variance: a. The requested variance is an extremely 1 arge deviati.on and enormously substantial tn requiring a 90% reduction of mini~um lot size. The Zoning Board of Appeals finds that such an enormous deviation would be 2 " tantamount to a request for a use variance. . Granting of the requested variance would be contrary to the Town of Wappinger's Comprehensive Plan. b. Variances of 90% of minimum lot size i~ tantamount to a use variance preempting the legislative powers of the Town Board and other authorized Boards of the Town of Wappinger authorized to enforce the zoning 1 aws. c. It is undisputed that the difficulty was self-created. Despite the applicant's knowledge that the previous request on precisely the same facts, circumstances and issues had been made and been denied by this Board, the present applicant purchased the property fully aware of the denial of the variance"and of the regulations of the Zoning Law. In fact, the applicant concedes that he has not considered any other allowable uses which do not require the 5 acre minimum requirement for a used car/automobile sales lot (Transcript page 106). d. There is a feasible alternative to allow the applicant to engage a business other than a used car/automobile sales lot with the 5 acre requirement in the HB zone. The record, the applicant and the experts that testified on his behalf acknowledge that there are other locations within the Town of Wappinger in which such used car/automobile lot could be placed. e. The applicant has failed to demonstrate with objective or substantial evidence that the variance would not have an adverse effect or undesirable change on the physical or environmental conditions in the neighborhood in permitting a used car/automobile lot to exist in an area requiring an approximately 90% reduction of minimum lot size. 7. None of th.e. testimony presented on behalf of the appl i.cant ts new. I.t 1:5 al so concl usory in nature and supported By oBjective or substantial evidence NOW, THE.REFORE, BE. IT RESQLVED by the Zoning Board of Appeal s of Ute. Town of Wappi.n~er, that Appeal #1143, a request for a 3 variance of Article IV, S. 446.815.1 of the Zoning Law with respect to minimum lot size of a used car/automobile sales lot, and concomitant lot depth and setback variances be denied on the following grounds: 1. The exact same prior application submitted by the applicant's predecessor in interest renders the present application barred on the grounds of res judicata and collateral estoppel. Indeed, as stated in Knight v. Amelkin, 68 NY2d 975 (1986): "A decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious." Thus, this Zoning Board of Appeals is bound by its prior Decision and Order herein. 2. As a matter of law, this Board can not grant an area variance for Special Permit uses. Matter of Kradle v. Zoning Board of Appeals, 121 AD2d 447 (2nd Dept., 1986). At a minimum, variances with respect to special uses warrant a higher degree of scrutiny. 3. The requested variance with respect to lot size is so substantial as to be tantamount to a use variance preempting the legislative powers and authority of the Town Board and other authorized Boards, and is contrary to the Town of Wappingers' Comprehensive Plan. 4. The applicant has failed to show that there is not some feasible alternative to allow the applicant to realize benefit without granting the variance or, alternatively construct a used car/automobile sales lot in another part of Town. 5. The difficulty was self-created tn that the applicant purchased the property with full knowledge of the Town of Wappinger's zoning laws and regulations and with the knowledge that the exact same application had previously been denied by the Zoning Board of Appeals. 6. The. appl tc~nt nas fatled to show that the requested vartance WQul d not have an adverse effect or undesirabl e change on the physical or envtronmenta 1 conditions. in the nei:ghliorhood. 4 , ADOPTED: Joel Sasser, Chairman Michael Hirkala Alan Lehigh James Brooker William Bitterlich voting voting voting voting voting ~ Zoning Administrator ~~ \~~JR. E alne Snowden Town Cl erk Town of Wappinger ANN VQLINO Notary Public, Slate of New York No. 4708759 Qualified In Dutohess Coun~ if' Commisskln expires 11/30/19_ Chairman, of Appeals '"',\ .. Sworn to befo e me this ~ day of fi\ ~~ 1993. Town of Wappinger 3. dvu 0~~ Notary Public Fi 1 ed in the Office' of the Town 'C'l erk of the 5