Loading...
11-7438 ('I,I,IW\! \"S'SI\ 'I \lll'r<.(h~. J\t 123 TOWN OF WA_PPINGER lOW" S I I' L1{ \ I SO J{ lJ~lI'bara .\ (,ul/kl FIR! I\SI'ECI OR \'1arh Liebermann - L.,I 127 '10\\ :\ BOARD \\ ilkllll I L Beale \'jnccnl Iklllnel !sma,' C/arnicd,i \lichacl KuzmiCl ( OD! L\ FORCL \ liS! OFFI( LR Sll~all Dan 1.'\1. J~() .',ailal(lrc A \lmdlu, 111- 1,1 1~2 1'.0'\1'\(; ,-\D\II'\ISTIUTOR Ilwbara Roberti - Lxl 12~ 1'1.\'\",\(, &: ZBA SECRET\R) ,,-liehclk (,ale BUILDING DEPARTMENT 20 MIDDI.Ll31 'SII RUAD \\AI'I'INGLRS I A LIS "iY ] 2~lJO (~~~) 2lJ7 .()2~6 I'a.... (X.j~ 12'17.057'1 fR1~CC~~W~fD) December 13,2011 JAN 2 3 2012 TOWN OF WAPPINGER TOWN CLERK To: Christine Fulton Town Clerk From: Susan Dao, Secretary Town of Wappinger Zoning Board of Appeals Re: 228 Myers Comers Road Decision Appeal No. 11-7438 Attached you will find the original Application/Decision & Order for 228 Myers Comers Road, 228 Myers Comers Road, Wappinger Falls, NY, Tax Grid No. 6258-02-702520. I would appreciate it if you would file these documents. Attachments cc: 228 Myers Comers Road Zoning Board Town File Richard O'Rourke, Esq. Building Inspector '-' -....I I I ' ~, ToWN OF WAPPINGER R I GI'A I If P.o. Box 324 - 20 M IDDLEBUSH ROAD 0 . IV 1'1 L WAPPINGERS FALLS. NY 12590 Zoning Board of Appeals . ' Office: 845.297,1373 '" Fax: 845.297.4558 Zoning Enforcement Officer Office: 845.297.6257 www.townofwapplnger.us RECEJVED ~AY 1 , 211ft PLANNING oa.AAfMEN ~OWN OF W.A.PPJNGeR T Application for an Interpretation t, Dated: S:/O-I/ , Appeal :# 1(-7t{3f5 TO THE ZONING BOARD OF APPEALS, TOWN OF WAPPINGE~, NEW YORK: r(We), 228 Mve-rs Corners ROi'ln,T.t..<resldingat ,,41:\ M;:dn ~+-":PP+-, ~,,;+-~ '3~O Whi te Plain~, NY 1 0~n1 '. . _-_- (phone), hereby appea~ to the Zoning Board of Appeals from the decision/action of the Zoning Administrator, dated Januarv 31 . 200.ll 'and do hereby apply for an interpr,etatlon. Premises located at 228 Mvers Corner~ 'ROi'ln Tax Grid # 6258'-02-707.1:\7.0 Zoning DistrIct N 'R 1. Record own'er of p'roperty '228 'Mvers Corners 'Road, LLC Address 245 Main st., suite 330. White Plain~, NY 10601 Phone Nu'mber 914-368-7200 Owner Consent: Dated: ~ignatur~: Printed: 2. ,Interpretation Requ~st: reWe) hereby apply to the Zoning Board' of ~ppeals for an interpretation of the following requirements of the Zoning Code. Whethe~ exi~~;ng l1~P~ nn +-h~ rTnr~rry ~rQ p'rg existiB~ BeB Qonformirig (Indicate Article, ,Section, Subsection and ParagraphJuses pursuant to ~2 4 0 -1 6 3. Reason For Appeal (Please substantiate the request by answering the following questions in detail. Use extra sheet, if necessary): TOW026.ZBA-Al (4-03 Rev) 1 on I I ' I. ~. l l ! j 1 I '--' ~ Town of Wappinger Zoning !3oard of Appeals ,. Interpretation Application Appeal No, Reason for Appeal Continued: . . . 4. List of attachme~ts (Check applicable Information) CX) Survey Date'd July 26, 2004 Last Revis~d Prepared by Roy Teller L.L.S. C ~ Photos ' . ~) Drawings Dat~d, , .', , ex) Letter of Comm'unlcation which resulted In application to,the ZBA. (e.g., recommendation from the PlannIng Board/Zoning Denial) Letter from ' Dated: Letter from. Dated:, (x) Other (please list): Appearance ticket and supporting deposi tiori of Barbara Roberti Affidavit of ~homas R. Borek '. and " 5. Signature and Verlflcatl~n Please be advi.sed that no application can be deemed complete l;Inless signed b'elow. The applicant he~Y,ptat~. that all Information gJ,yel} is accurate as of the date of application. :;<'oLK I'll ~cs;. ~r;r;..(Lt'{ UC . ,I. /. SIGNATURE' . . DATED: 'I/~I if CApp lant) -rHO~ . f'e.,. , 1 SIGNATURE DATED: (If more than one Appellant) TOW016.zBA-AJ (4-03 Rev) 2 of3 ~ i l , l I " :i J \..,; .,.. "wi Town of Wappinger Zoning Board of Appeals Interpretation Aj(licati~ Appeal No. r- .,,, FOR OFFICE USE ON'L Y Conclusion: Therefore, it was determined the Zoning Board of Appeals ' . 01 UPHELD () REVERSED ' Conditions/Stipulations: The following conditions and/or stipulations were adopted by resolution of the Board as part of the action stated above: . ' ~'E ;;A/ ~~~~(~' 1'tr~:~:-~o,~ '<::01( AN' X'.A/J'M fJEU~.v ( ) Findings & Facts Attached. DATED: _' 2- -\ '\- \ , 'ZONING BOARD OF APPEALS , :~N;Z:;~ . / (Cliairinan) - . PRINT: tk2?~ ~~ --... TOW026ZBA-A1 (4-03 R~) 3 of3 i? ~ (/1 i-fJ ,J TOWN OF WAPPINGER ZONING BOARD OF APPEALS I p/ I 3-/) APPLICATION FOR AN INTERPRETATION FINDINGS & DECISION RECElVEO 11-7438 t)Eel3 2011 May 10,2011 PLANNING DEPARTMENT 228 Myers Corners, LLC TOWN OF WAPPINGER 228 Myers Corners Road 6258-02-702520 NB & R-40 228 Myers Corners, LLC ~ 240-16 Non-Conforming Uses Appeal No. Application Date: Applicant Premises Located at: Tax Grid No.: Zoning District(s): Record Owner of Property: Interpretation of Code Section: Documentary Evidence Presented 1) Application for an Interpretation dated May 10,2011 with exhibits, 2) Affidavit of William Parsons sworn to February 15, 2001; 3) Affidavit of Arthur Lieberman sworn to February 20,2001 4) Affidavit of Grace Elder sworn to March 13,2001 5) Affidavit of Michael Schnorr February 2001. 6) Affidavit of Frank Adamo sworn to October 17, 2011. 7) Letter of Attorney to the Town Albert P. Roberts, Esq. dated July 19,2001 ("Roberts' Letter") 8) Letter of Tatiana Lukianoff dated August 1,2001 9) Letter from John Simonetty dated December 1,2011 10) Statement in Support of Application by Richard O'Rourke, Esq. dated December 9,2011 11) Affidavit of Frank Adamo sworn to December 6, 2011 12) As-Built Piqwon Site Plan prepared by Civil Tech Engineering dated March 24, 1999 last revised August 31, 2000 ("Piqwon Site Plan"). 13) Site Plan & Details for 228 Myers Comers, LLC prepared by Insite Engineering dated October 27, 2005 last revised October 18, 2006. ("228 Site Plan") Request for Interpretation ... The. Applicant has_r.equ.es.ted.anjnterpretatio1}._Jb(lLtb~..9_UIT~J:1tJlse oJ i1spJ:Op~rty is a legally existing prior non-conforming use allowed to continue pursuant to the provisions of S 240-16 ofthe Town of Wappinger Code. The applicant points out that on August 1, 2001, the Zoning Administrator of the Town of Wappinger determined that the use of the property on that date was consistent with the provisions of the Town of Wappinger Code. The Roberts' Letter of July 19, 2001 indicated that the mixed uses on the property constituted allowed nonconforming uses. The applicant seeks a determination from the ZBA that the nonconforming uses allowed as of August 1, 2001 have continued to date and have not been abandoned. The applicant further requests an interpretation that the use of the property by the current tenant is consistent with the prior uses of the property and is a continuation of the prior nonconforming uses. FINDINGS OF FACT Description of the Premises The premises that are the subject of this application are a 6.27 acre parcel located at 228 Myers Corners Road. The front portion of the property is located in a Neighborhood Business District and the rear portion of the property is located in an R-40 District. The subject parcel was subdivided from a larger parcel by a subdivision plat entitled "Plat of A & J Parsons, Inc. Subdivision filed in the Office of the Dutchess County Clerk on March 14, 1988 as Filed Map 8322. Piqwon, Inc. acquired title to the premises on or about June 5, 1998 from A & J Parsons, Inc. Affidavit of Grace Elder at Para. 5. 228 Myers Corners, LLC obtained title to the premises by deed from Piqwon, Inc. dated February 4, 2004. There are 3 principal buildings located on the property and several sheds. Also located on the property is a fenced material storage area. These are depicted on the Piqwon Site Plan. The Piqwon Site Plan was originally submitted in support of a Special Permit Application to the Town Board that was ultimately denied. The Piqwon Site Plan is referenced in the Roberts' Letter. Building 1 is located closest to Myers Comers Road. It has two stories and approximately 2,200 square feet. Building 2 is located southwest of Building 1 and has one story and approximately 4,500 square feet. Building 3 is located on the west side of the property. It has one story and approximately 9,190 square feet. Page 2 of the Roberts' Letter describes the uses of the buildings as of July 19,2001. The conclusion ofthe Roberts' Letter states: . . . Considering that the parcel has had a history of multiple commercial uses predating zoning, including a junkyard and auto dealership (including repair and body shop), the use of the site as proposed is consistent with prior uses. (It is noted that the junkyard has lost its status as a "non-conforming use.) . .. The Zoning Administrator has determined that the multiple use of this site in the above fashion would be consistent with the Code of the Town of Wappinger, either as a continuation of non-conforming uses or as permitted uses. TheLetter~of ZoninR-ArlministratorTatiana-cukianoff-dated-A:ugustl, 2001. corroborates the determination of the Attorney to the Town. The parent company of 228 Myers Comers, LLC, Golden Age Mortgage Corp. (GAMC) lent money to Piqwon and GALS, Inc. in 2000. Affidavit of T. Borek at para. 4, 5. Piqwon and GALS were in default on their obligations to GAMC and an agreement was reached to transfer title to the real property owned by Piqwon to a single-entity real estate holding company 228 Myers Comers, LLC. Affidavit of T. Borek at para. 8. On February 4, 2004, 228 Myers Comers, LLC took to title to the property from Piqwon, Inc. Affidavit of T. Borek at para. 9. After the transfer of title to 228 Myers Corners, LLC, GALS continued to occupy the property as a tenant. The Internal Revue Service had outstanding tax liens on the equipment of GALS, Inc. as did GAMC. GAMC and the IRS negotiated an intercreditor agreement which split the proceeds from a liquidation sale of the GALS, Inc. assets 50/50. Affidavit of T. Borek at para. 8 and his public hearing testimony. In 2005, the IRS and GAMC conducted auctions on the premises to sell the GALS, Inc. equipment. After the IRS tax liens were satisfied vehicles, material and equipment owned by GALS, Inc. remained on the premises. GALS, Inc. vehicles, material and equipment were located in Building 3, the outside storage sheds and the material storage area. The equipment that remained in the material storage area included PVC pipes, signs and barriers. Since on or about May 1, 2005, Frank Adamo, an employee of GAMC, has visited the site and maintained the premises. Mr. Adamo has managed the cleanup of the property. Mr. Adamo stated that PVC pipes were located in the material storage area some remained until earlier this year and that he removed the PVC pipes from the property over time to use on other job sites. Material that was previously owned by GALS remains on the premises in storage sheds and in the material storage area. Frank Adamo uses a portion of Building 3 as his work space. By decision dated November 14, 2006, the Zoning Board of Appeals granted an area variance to allow for the use of Building 1 for automobile sales on 2.52 acres where 3 acres is required. An additional area variance of 6.4 feet was granted to allow with respect to an existing metal shed on the property. Motor vehicles sales are not a permitted use in the Neighborhood Business District, but repair garages are allowed with special permit approval. In or about May 1, 2010, 228 Myers Corners, LLC leased portions of the premises to Communications Specialists, Inc. (CSI). CSI has offices in Building 1, uses the mechanics' bay in Building 3 to do maintenance on its vehicles and uses the material storage area to store spools of wire and other material. On January 31, 2011 CSI was issued a violation for failure to obtain a change in occupancy permit as required by S85-5(A)(2) of the Town of Wappinger Code and 228 Myers Corners, LLC was issued a violation for failing to abide by the provisions of an approved site plan in violation of S240-83 of the Town of Wappinger Code. The instant application for an interpretation was filed on May 10,2011. Public Hearing: A public hearing was duly noticed and held on November 22, 2011 and a number of witnesses testified in support and opposition to the application for an interpretation. At the public hearing 228 Myers Corners, LLC was represented by Richard O'Rourke, Esq. of Keane & Beane. Thomas Borek, Frank Adamo and Don Walsh were sworn and testified on behalf of the applicant. The following neighbors appeared at the public hearing and testified in opposition to the interpretation: John Villani of 7 Sherwood Heights, Olga Dalsheim of 5 Sherwood Heights, and John Simonetty of 236 Myers Corners Road. Mr. Robert Buyakowski testified in support of the application. Mr. Villani testified that the property was quieter when it was used as a junkyard but it has been noisy since GALS became a tenant on the property and the noise has continued. Ms. Dalsheim testified that there is noise coming from the property caused by an A TV or motorcycle. Mr. Simonetty testified that there was outdoor storage at the property but as far as he was concerned no business was operating. He also testified that there was motorcycle noise coming from the property. He testified that he thought that Building 1 was vacant Mr. Robert Buyakowski testified that there are many vacant businesses in the area and it would be helpful to allow CSI to continue as a tenant in the property. Decision The August 1, 2001 decision of the Zoning Administrator that the uses listed in the Roberts' Letter were legally existing prior non-conforming uses was never appealed so that determination is final and binding upon the ZBA. This determination establishes the uses listed in the Roberts' Letter as allowed non-conforming uses. Such uses are allowed to continue unless such uses have changed or have been abandoned. The burden is on the Town to prove by the preponderance of the evidence that the nonconforming use has been abandoned after a nonconforming use has been established. The record establishes that GALS maintained a contractor's office on the premises in Building 1 and that construction materials, supplies, equipment and vehicles were stored on the site in Building 2, Building 3, Metal Sheds and the Outdoor Material Storage Area. Some of the materials, supplies, equipment and vehicles owned by GALS remained on the site until early 2011. By 2006, the GALS equipment no longer occupied Building 1, but the remaining areas of the property continued to be occupied by GALS property. Moving out of the office use in Building 1 does not discontinue the remaining uses on the property. 228 Myers Corners, LLC and GAMC auctioned the GALS equipment in conjunction with the IRS and used that money to satisfy GALS obligations to GAMC. The equipment remained on the property and was stored there pending the sale. This is a legal continuation of the use of the property for the storage of contractor's equipment and does not establish an abaiidonmerir6f tllen6ficonrormmg-use- oJ-theproperty:-The- affidavit of Frank Adamo estabJish~s1hatPVC pipe on the property was taken off site and used on otherjob sites. This is a continuation of the use of the property. Mr. Simonetty submits that the property was not used for revenue generating purposes so the nonconforming use of the property should be deemed abandoned. Property previously owned by GALS remains on the site until present. Adamo testifies that he has used pipes from the premises as recently as 2011. This establishes a use of the property. 228 Myers Comers, LLC is a subsidiary of GAMe. As such there is no requirement for it to pay rent to the property owner for the storage of equipment on the property. The storage of vehicles, equipment and material on the property establishes a business use. Buildin21. The Towns records indicate that Building 1 received site plan approval from the Planning Board on June 18, 1980 for use as a motor vehicle sales establishment. At the time the approval was granted motor vehicles sales were allowed on the property. The use of the Building 1 together with 2.52 acres of the property for automobile sales has been previously authorized by an area variance granted by the ZBA on November 14,2006. The use of Building 1 for used car sales is consistent with the Roberts' Letter and the prior decision ofthe ZBA Professional, banking, business, governmental or other offices are permitted uses within the NB District. The use of Building 1 as offices is a permitted use. Motor vehicle sales establishments are not permitted uses in the NB District however they were allowed uses previously and approvals were received. Evidence was presented that Wheels R Us occupied Building 1 and the appurtenant area within 2 years prior to the request for the interpretation so the use of the property as a motor vehicle sales establishment is determined to be a continuing nonconforming use. Buildin2 2. The Planning Board granted an approval for Building 2 for the storage of cars and auto parts in conjunction with a motor vehicle sales operation on March 4, 1968. On December 24, 1968 a C of 0 was issued for the building. The building contains a paint shop and storage areas. Repair garages are not an as of right permitted use within the NB District, but are allowed by special permit. The use of Building 2 as a repair garage and storage of motor vehicles and parts is a previously allowed use, the prior site plan approval for the site is deemed to include a special permit for such use. The use of Building 2 for a repair garage, motor vehicle storage and part storage is deemed to be an allowed use. Buildim~ 3. There are no approvals of record for Building 3. Building 3 contains a mechanics bay and storage areas for vehicles, equipment and materials. A mechanics bay can be part of a repair garage but may also be an accessory use in a contractor's operations for the repair of contractor's vehicles and equipment. The storage areas within the building can be accessory uses for either principal use. The use of Building 3 for the repair and storage of its contractor vehicles is a continuation of the prior use and is not considered to be a change in use. Metal Sheds. The use of the metal sheds for the storage of construction materials is a continuation of the prior nonconforming use established by GALS and its predecessors. . MaleriaTStoraeeArea;.The useofilie-material.snjrage-area for the storage of spools of wire, sPQols of cable and. con.struction materials in the fenced material storage area is a continuation of the prior nonconforming use established by GALS and its predecessors. The Roberts letter indicated that the property owner would install a berm on the easterly property line as well as plant some landscape shrubs in the area adjacent to Mr. Simonetty's property. Proposed evergreen buffer planting and solid vinyl fencing are shown on the 228 Site Plan. This screening should be installed to be consistent with the letter of Mr. Roberts. The applicant has agreed to install this screening. R-40 Portion of the Property. The applicant has conceded in its application that any nonconforming use of the R-40 portion of the property has been abandoned. The Planning Board approval of June 18, 1980 indicates that the junkyard area should be fenced so that it would be separate from the automobile sales area. The junkyard occupied that portion of the property that is now zoned R-40. To insure that the R-40 portion of the property is not used improperly a fence or other physical demarcation barrier should be placed on the boundary between the R-40 and the NB district so that contractor vehicles and construction materials and equipment cannot be placed on the R-40 portion of the property. Openings are allowed so that the owner may use that portion of the property consistent with the uses allowed in the R-40 District. The fence should remain locked during non-business hours to prevent unauthorized persons from entering the site with noisy recreational motor vehicles. The fence to prevent commercial uses in the R-40 zone area should also prevent noise from disturbing the adjacent properties in the residential district. Motorcycle and ATV Race Course. The use of the premises for the racing of ATV's or Motorcycles is not permitted. This is not a nonconforming use. Amendment of Site Plan In 2006,228 Myers Comers, LLC had an amended site plan application before the Town Planning Board. (See 228 Site Plan) That site plan was not approved for a variety of reasons. It appears from the Town's records that the last approved "site plan" was June 18, 1980.228 Myers Corners, LLC should make application to the Planning Board to amend its site plan to reflect the additional screening shown on the 228 Site Plan. No approval of the existing buildings or the material storage area is required. As required in the resolution of approval dated June 18, 1980, parking shall be delineated on the site plan. The foregoing is the decision of the ZBA.