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1985-05-14ZONING BOARD OF APPEALS TOWN HALL MAY 14TH, 1985 - 7:00 P.M. MILL STREET AGENDA WAPP. FALLS, NY PUBLIC HEARINGS: 1. Appeal 46796, at the request of Gene M. Pullo, seeking a variance of Article IV, §450.1 of the Town of Wappinger Zoning Ordinance to allow a 23 foot rearyard setback when 25 feet is required on Lot 466, The Hamelt, Hamlet Court, and being Parcel 466157-02-967945, in the Town of Wappinger. 2. Appeal 46797, at the request of Luvluk Inc., seeking a variance of Article IV, §421 (D) of the Town of Wappinger Zoning Ordinance to allow a 60 foot setback when 75 feet is required on Lot 4615, Cedar Creek Estated, Schnabl Court, and being Parcel 466258-03-273193, in the Town of Wappinger. 3. Appeal 46799, at the request of American Lumber Company, seeking a variance of Article IV, §422 of the Town of Wappinger Zoning Ordinance to allow an 18 foot setback when 30 feet is required on property located on Chelsea Road, being Parcel 466056-01-174862, in the Town of Wappinger. UNFINISHED BUSINESS: 1. Appeal 46716, at the request of Gina Petroleum, Inc., requesting a six month extension for a variance for property located on Route 376, in the Town of Wappinger. ZONING BOARD OF APPEALS TOWN OF WAPPINGER TOWN HALL WAPPINGERS FALLS. NEW YORK 12590 TEL. 297-6257 MEMO TO: ZONING BOARD MEMBERS FROM: LINDA BERBERICH, SECRETARY DATE: APRIL 25TH, 1985 SUBJECT: ADDITIONS TO THE MAY 14TH, 1985 AGENDA PLEASE ADD THE FOLLOWING: APPEAL 4800, AT THE REQUEST OF TIM GALE SEEKING AN INTERPRETATION OF §412 OF THE TOWN OF WAPPINGER ZONING ORDINANCE. APPEAL #801, AT THE REQUEST OF AKHR ASSOCIATES SEEKING AN INTERPRETATION OF §422 OF THE TOWN OF WAPPINGER ZONING ORDINANCE. Zoning Board of Appeals Town Hall May 14th, 1985 Mill Street Minutes Wapp. Falls, NY The regular meeting of the Zoning Board of Appeals was held on Tuesday, May 14th, 1985, at the Town Hall, Mill Street, Wappinger Falls, New York, beginning at 7:00 P.M.. Members Present: Mr. Landolfi Mr. Hirkala Mr. Cortellino Others Present: Ms. Linda Berberich, Secretary Ms. Anna Angell Young, Zoning Administrator The meeting was called to order at 7:00 P.M.. Mr. Landolfi asked if all the abutting property owners had been notified. Ms. Berberich replied that they had according to the records available in the Assessors Office. Mr. Landolfi asked if he could entertain a motion on the Minutes from the April meeting. Mr. Cortellino made a motion to accept the minutes. The motion was seconded by Mr. Hirkala. Vote: Mr. Landolfi - aye Mr. Hirkala - aye The motion was carried. Mr. Cortellino - aye Mr. Landolfi stated that we will go through each appeal, everyone will be given an opportunity to be heard, we may or may not render a decision this evening. Mr. Landolfi then read the first appeal: Appeal 46796, at the request of Gene Pullo, seeking a variance of Article IV, §450.1 of the Town of Wappinger Zoning Ordinance to allow a 23 foot rearyard setback when 25 feet is required on Lot 466, The Hamlet, Hamlet Court, and being Parcel 466157-02- 967945, in the Town of Wappinger. Jack Railing, Engineer, and Gene Pullo, President of Cobrew Reality were present. Mr. Railing stated that Lot 466 of the Hamelt subdivision was a 40 lot Conservation Subdivision. The structure on Lot 466 was placed such that we only have the 23 foot setback on the rearline of the particular lot. The rear of that line is all Conservation District for quite a ways. The building is a jogged type building, that is part of the problem why we are here tonight. Basically it was a problem in the field and Mr. Pullo will atest to that. Mr. Cortellino asked what he meant by a problem in the field. Mr. Pullo stated that what happened was when it was laid out, we have a problem with the lot, with some of the lots in the project they are very tight. We really don't have much room for error, but that is not the reason we are here. When it was laid out, one building was, becuase the way the ......walls are set up we have jogs Page -2- May 14th, 1985 in the building, when we laid out, which was taken into account one building there was an error made of 2 feet, which is exactly the jog of the building which put us into violation. Mr. Railing stated that in other words when they laid it out they laid out for the left building not realizing the right building was 2 feet. Mr. Pullo stated that it was an error in the field and there is no one I can blame but myself. It was not discovered until we went for final. Mr. Landolfi stated that he is lead to believe that there may be problems with some other buildings out there, is that correct. Mr. Railing stated that what we have done in order to preclude this from re-occuring. we have approached the Planning Board and generally asked them if it would be permissable again, with permission of the Town Board, to rap an additional 10 feet around all the lots. Mr. Cortellino asked, taking it from the Conservation District. Mr. Railing answered yes, so that we won't have this problems. They are tight lots. Everything around it is wide open so it is not a problem of abutting additional residences, it is just a matter of how that ultimate Conservation District ends up. Mr. Landolfi stated that since you have already approached them, was this particular lot included in that conversation. Mr. Railing stated that all of them were. Mr. Cortellino asked when they proposed to act on it. Mr. Pullo answered that we haven't made that application yet. I approached the, I had a conversation with the Supervisor a few weeks ago, and I asked his opinion and because it is a Conservation District we would have to go back to the Town Board and I asked his opinion on what his recommendation was to the Planning Board and see what they had to say, and it has been done in the past, not for us, but it has been done in the past, all in all it doesn't make much difference because we have 24 acres of land. Mr. Hirkala asked if it was a park district. Mr. Pullo answered that yes it is. Mr. Hirkala asked then it is a park district for that particular development. Mr. Pullo answered that that is correct. The only reason we are applying for a variance on this particular unit, I have the people who are living in this house we put in a hotel, that is the only reason that I have applied for a variance, otherwise I would just go through the filed map. Mr. Landolfi stated that they had ample time, I belive then, to really persue with either the Town Board or the Planning Board. to Mr. Pullo stated that the first available meeting we had was last night. Mr. Railing stated that to get on the Planning Board agenda you have to give notice. Page -3- May 14th, 1985 Mr. Landolf i stated that say the Board grants you this variance, what assurance do I have that I am going to hear that you are going to put someone else up in a hotel for your next building. Mr. Pullo answered that he is aware that there is no obligation on the Board's part to grant this. I know I can only come in here and cry once. It is not to my benefit to do that. If I could work out with this variance.to call it a temporary variance, if there is such a thing, to in otherwords, if I can have these people take the house and do it with an agreement that I would have to give up a portion of land, which would be pre -determined. Mr. Hirkala stated that we have a technical situation here. If you get that extra 10 feet, and there is a variance of 23 feet that goes with that property that means that they can add onto that property up to 23 feet. Mr. Cortellino stated that what we could do is give a variance contingent on the procedures to be followed and obtaining the 10 feet from the Town because then the Town has to act not the Planning Board, the Planning Board makes the recommendation. Mr. Pullo stated that we have approached the Planning Board and there are a couple of alternatives. We went to them with our problem, there were two ways that they say to do it. One was to cut the rearyard requirement from 25 feet make it 20 feet. The other one was to go back to the Town and take care of the problem once and for all that instead of cutting it by 5 lets go on and ask for an additional 10, they would recommend an additional ten feet. That was their suggestion, and additional 10 feet instead of the 5 feet. Mr. Cortellino asked Mr. Railing,the other places, even if you are going to be measuring extra carefully, are also doubtful, am I correct. Mr. Railing answered, doubtful no, I would say they are all close. Mr. Hirkala asked if there is a procedure for double checking the footings for..... Mr. Railing answered that there is always a procedure for that, whether it is actually a law, no I don't think that it is a law. Mr. Pullo stated that with mine there were no stakes off the money, it was a simple clear cut error on our own part. Mr. Hirkala stated that he talked to the man out on the site and he told me that it was his fault. What he did, when he set the footings for the building he measured off the wrong corner of the existing building. Mr. Landolfi asked if there was anyone to speak either in favor or against this appeal. There was no one. Mr. Hirkala stated that he would probably move the variance, but I have a problem with is the fact that it has happened in the past many times, this is not your first project, I understand mistakes happen, but if the building is up, there has to be a way to stop it before the building gets up. Mr. Pullo stated that honestly what we, the problems, what we have to do is change the 10 feet, that is the big probelem. We have restrictions, we have one building that if we move it 1 foot in any direction, we are in violation, we are that close. Page -4- May 14th, 1985 Mr. Landolfi asked if they were saying that if someone wants to add on something they are going to be coming into us for a variance. Mr. Pullo stated that his giggest problem is in back of the unit not in the front. Mr. Cortellino stated that there are two problems, one is the Planning Board allowing the lots like that, and the other is the builders, the people want a gigantic house and shoe horn it into that lot. Mr. Pullo stated that we were criticized for it last night, and rightfully so. If we had asked for more depth for the lots they would have said fine. Mr. Cortellino made a motion to grant a variance subject to the builder pursuing the channels through the Town to get the extra 10 feet, but if they don't get the 10 feet, like Mr. Versace said, please don't come back for any other structure. Mr. Hirkala seconded the motion with the understanding that his feeling is that this is it for the Hamlet. Ms. Young stated that in the future we can require that foundation plans be submitted before the building is erected. Once the foundation is in place, the surveyor will go out. Mr. Hirkala stated that that is not our perview to say that, but my feeling is that it would be to his benefit to make sure that he knew where everyone of them was. Mr. Pullo stated that we have changed our method of layout, I am asking the survey dept. to change the method of layouts to insure, make it a little easier for us to check. Mr. Landolfi stated that we are going to close this appeal. Mr. Cortellino made a motion that the variance be granted subject to the diligent pursuit by the builder to the Town Board to obtain that 10 foot, but the variance would be in place regardless if he gets the 10 foot or not. Mr. Hirkala seconded the motion. Vote: Mr. Landolfi - aye Mr. Cortellino - aye Mr. Hirkala - aye The motion was carried. Mr. Landolfi read the next appeal: Appeal #797, at the request of Luvluk Inc., seeking a variance of Article IV, §421(D) of the Town of Wappinger Zoning Ordinance to allow a 60 foot setback when 75 feet is required on Lot 415, Cedar Creek Estates, Schnabl Court, and Being parcel #6258- 03-273193, in the Town of Wappinger. Peter Luckel was present. Mr. Luckel stated that we have people who pick out lots in subdivisions and they refuse to put cottages on them. This particular gentlemen picked out a house that is abnormally wide in depth, it is 36 feet deep rather than the normal 24, 26 foot depth, and therefore it is impossible to get it on that corner lot with a 75 foot setback from a County Road. We did approach the County on it already, they didn't seem to have a problem with it. Page -5- May 14th, 1985 Mr. Cortellino stated that it is not the County's law about the setback it is the Town of Wappingers law about the setback. Mr. Luckel stated that I think we were on of the first subdivisions, residential subdivision to have that enforced upon. Up and down that road is very non -conforming. Mr. Cortellino stated that he has no questions for the very simple reason that I find no basis in our guidelines to grant the variance. You have presented that there is a geographical reason. Mr. Luckel stated that the man is a professional and he is thinking of possibly thinking of having a home office on that lot. Mr. Hirkala stated that his feeling is that I have viewed Myers Corners Road. The standard on anything other than a County road is 60 feet requirement. I don't see where it would hurt anything to give him the 60 feet rather than the 75 foot because I don't think there is 75 foot anywhere on that road anyway. There was a discussion between the Board. Mr. Hirkala asked how they made on the average density thing.with the Planning Board. Mr. Luckel stated no problem. Mr. Cortellino stated that if he wants an office he will have to go for a site plan. Mr. Landolfi asked Mr. Luckel how many other homes has he built in the Town of Wappinger, roughly. Mr. Luckel answered roughly, 12 or 15. Mr. Landolfi stated that I don't recall seeing you in here before, not that we go by batting average or whatever, I kind have been impressed with you record as a builder to date. Ms. Young stated that they were before the Planning Board last night. Mr. Luckel stated that it was resolved last night. Mr. Cortellino asked what the overall dimension of the house was. Mr. Luckel answered 36 x 40. It is squarer than normal. Mr. Landolfi asked if there was anyone to speak either for or against. There was no one. Mr. Landolfi stated that they will close this appeal. Mr. Hirkala made a motion to grant the variance for 60 foot and to send a letter to the Town Board requesting a review of the 75 foot setback on Myers Corners Road in view of the fact that most of the buildings on the road now are 60 foot or less. The motion was seconded by Mr. Cortellino. • Page -6- Vote: Mr. Landolfi - aye Mr. Cortellino - aye Mr. Hirkala - aye The motion was carried. May 14th, 1985 Mr. Landolfi read the next appeal: Appeal #799, at the request of American Lumber Company, seeking a variance of Article IV, §422 of the Town of Wappinger Zoning Ordinance to allow an 18 foot setback when 30 feet is required on property located on Chelsea Road, and being Parcel X66056-01-174862, in the Town of Wappinger. Ernest Martin Jr. was present. Mr. Cortellino asked, you have no hardship, it is a question of you wish to expand there. Mr. Martin stated that currently the area where we are proposing to put the storage shed is used for storage. They have the lumber piles on palets that are probably anywheres from 6 through 12 foot high. What the owner would like to do is essentially put a shed type enclosure around, the enclosure would be essentially a shed type of construction, and have an open side to keep the weather off. The hardship is unique in a sense that alot of the buildings that are down there are storage facilities and were installed prior to zoning so therefore it is kind of a mish mash as far as the buildings go. Mr. Cortellino stated that he has many hangups, but one in particular is covers have a way of getting sides. Mr. Landolfi stated that they have a way of becoming a permanent structure of some sort. Mr. Cortellino stated that the next thing you know there will be walls on the sides and you will have another building. Mr. Martin stated that they do consider this a permanent structure, I am not trying to deny that it isn't. Mr. Cortellino stated that also the fact that you have storage outside, you say it was before zoning, but really, usually the Planning Board sometimes say that there will be no materials stored outside a building so you are fortunate that you can store material outside the building. It is hardly an argument for putting up a building because of an oversight by the Planning Board. Mr. Cortellino asked Mr. Martin if he recalled what the Planning Board said. Mr. Martin answered that what they said is that the ordinance is 30 feet and the way we have it laid out is 18 feet so, put it the way you propose it. Ms. Young stated that they did recommend that he move it up. Mr. Landolfi stated that there was a fire company concern. Was that ever satisfied. Mr. Martin stated that that comment was raised. What we said is that we are allowing about 10 or 15 feet between that building and the existing building which would allow to them to get around it. Mr. Hirkala stated that his personal opinion is that he would like to table this until we get an answer from the fire dept. • Page -7- May 14th, 1985 Mr. Martin stated that this storage facility would be right up against the existing fence. Mr. Landolfi asked if there was anyone to speak either for or against this appeal. Louis Quastian - owns property accross the street. This is a level lot. It is very close to the road as far as fire or anything else. I was intending to build a house accross the street for my daughter and that that close would take away the value of my property. Mr. Quastian looked at the map and found it was in a different location. He then had no concern on this. Mike Wahal - Lake Drive and River Road. Had a an objection of giving them any kind of variance. He is the only commercial down there, everything else is residential. Eugene Sheppard - River Road North. Just wanted to look at the map. Asked how high it would be. Mr. Cortellino asked why they couldn't move the shed up forward, away from the fence. Mr. Martin stated that it could be moved up but by doing so you would use up room to maneuver around the buildings. Everything is very tight. Mr. Hirkala asked how high this would be. Mr. Martin stated that he did not know the exact height. Ms. Young stated that that proposed shed is not drawn to scale. Mr. Hirkala stated that he would like the fire dept. comments as far as maneuvering room with the location. Mr. Landolfi stated that we will close this appeal. Mr. Landolfi stated that that business is already utilizing, they are getting maximum coverage. It doesn't even appear to be a question of jsut a financial hardship if any. Mr. Martin stated that he thinks if they went down to the site they would see it. You have isle ways where they take, you have storage on both sides. By bringing that in by 12 feet you take away alot of that storage space. If these buildings were probably laid out properly, lets say years ago, which they weren't, alot of these buildings were built before zoning, we probably wouldn't be having the problem. Mr. Landolfi stated that they don't want him to add to the problem. Mr. Cortellino stated that if we table this, what I would like to know is how large is the particular lot they are on, and how much is covered already by structures or ........spots. Because you may be utilizing it more than it should be now. 30 % of the land can be used covered. Mr. Hirkala stated that there is no justification for the request right now. There was a discussion on the site. 01 .Page -8- Mr. Cortellino made a motion to deny the variance. May 14th, 1985 Mr. Hirkala stated that what he had in mind is further information, and if we don't get the further information that we want then we can deny it. Mr. Hirkala made a motion to table this appeal. The motion was seconded by Mr. Cortellino. Vote: Mr. Landolfi - aye Mr. Hirkala - aye The motion was carried. Mr. Cortellino - aye Mr. Landolfi stated that there will be a ten minute break. 8:00 p.m.. The meeting was called back to order at 8:10 P.M.. Mr. Landolfi read the next appeal: Appeal #716, at the request of Gina Petroleum, Inc., requesting a six month extension for a variance for property located on Route 376, in the Town of Wappinger. Richard Cantor, Arthur Lieberman, Gina Petroleum, and Robert Rahemba were present. Mr. Cantor stated that as I indicated in the letter this Board granted a variance in January of 1984. Under the terms or your ordinance, I believe it has a one year life. That life has come and expired, and gone on to wherever expired variances go to. We are here to ask that you consider granting a six month extension. The circumstances this evening, pertaining to this property are the same circumstances that existed at the time this Board granted the variance, and as we point out in the letter, we think there are features of the proposal as contained in the variance that will we are putting a response to requests of the Zoning Board at the time it considered it such as moving some of the buildings around, demolishing some structures that the Zoning Board preferred to have demolished, so that I would suggest that perhaps the view of the Zoning Board in terms of what should be there would be better served by granting this extension than it would be by not because otherwise we would be required, if we wanted to proceed, to go to the Planning Board for a so called Special Permit and while what would be there would be smaller, by a very small amount. I don't think we would be able to achieve the things that the Zoning Board asked us to achieve in terms of demolition and moving the structures. So, I would think or at least hope that there is a community of interest between the applicant asking for a six month extension and the Zoning Board preferring this solution which in large part was shaped by the Zoning Boards suggestion rather than the solution that would be available were there no variance. That in a nut shell is the matter before you. Mr. Landolfi asked if the objective still pretty much the same, the goal as the plans were presented to us. Mr. Cantor answered, what we are asking you to extend is the exact same approval, with all the modifications per the Zoning Board's request that you approved on the evening of January, I believe it was the 10th of 1984. Of the exact same proposal right down to the last piece of wood, and the last stone and brick. Mr. Hirkala asked, I am right as to what I am reading here, the varinace was granted on January 10th, 1984. Mr. Cantor answered that that is the correct date. Page -9- May 14th, 1985 Mr. Hirkala asked and the application for an extension is what date. Mr. Cantor answered April 9th. Mr. Hirkala stated, it seems to me that it expired already. He has to get a new variance. I don't think that we have any choice. Mr. Cantor stated, I disagree. You certainly do have a choice. You may choose not to exercise the choice. In the request I cited to you, several cases, that supports this propsition and for the very purpose of allowing you, as I recited right in the letter, that you consult with you own Town Attorney so that hopefully by the time we got here this evening to the extent that there were questions we might have them resolved. I believe that you do have the power to grant an extension not withstanding that you passed the expiration date. Mr. Hirkala answered, that is my point. Your letter here says that we can grant an extension, and I personally I would not argue that point becuase I am not a lawyer and I don't really know, but the thing I have a problem with is the fact that the year has already gone by. If the request had come in prior to that point, then I would say that you are probably correct. The point of the year has already passed and a maater of fact we are a few months behind the point of the year. Mr. Cortellino stated, also, you did not say whynothing at all has been done. Say I grant you that there were delays, a year delays, he hasn't been here in the last six months, what delays occurred. Not the ones cited, how long does that take, three months, four months. Mr. Cantor answered, the letter, you say that we don't state the delays, the letter does explain them. Mr. Cortellino answered, I understand what the letter says, there was Planning Board, there was Zoning Board, go back change this, I am saying how long did that take, three months, four months. Mr.Cantor answered, beyond the one year period. Mr. Cortellino stated, it did not take beyond the one year period. Mr. Cantorstated that of course it did, that is why we are here. Mr. Cortellino stated that I haven't seen him in six months. Has anything been done to the property. Mr. Cantor answered no, it hasn't started. Mr. Cortellino asked, has everbody been satisfied. Mr. Cantor answered that he did not understand the question. Mr. Cortellino stated, you went to all these other groups to have changes made, am I correct. Mr. Cantor answered, yes, except we, we didn't go to have a group to have changes made, we went to the Planning Board. The Planning Board, in what I would call a state of confusion believes that a Special Permit is required, a Special Permit would be required if we didn't have a variance, but the whole point of the variance was to vary the requirement of a Special Permit. All that is required is site plan approval. If there were a variance...... ,Page -10- May 14th, 1985 Mr. Cortellino asked, when was the last time you went to the Planning Board. Mr. Cantor answered quite some months ago. Mr. Cortellino stated, I am asking, six months ago. Mr. Cantor answered, that is a reasonable approximation. Mr. Cortellino stated, and they said you needed a special permit. Mr. Cantor answered that that is correct. Mr. Cortellino asked, and you thought you needed a variance. Mr. Cantor answered, no, we had the variance, we needed site plan approval. Mr. Cortellino asked, did you thought you didn't need the special permit and you had the variance already, after the six months ago when the Planning Board said we think you need a special permit and you said I don't think so, we need a variance, why was no work done. Mr. Cantor answered, we did, we then proceeded to get applications drawn for site plan approval so that we could actually submit them and if we had to contest their interpretation we would. Mr. Cortellino asked, the site plan drawings were submitted to the Planning Board. Mr. Cantor answered, were prepared, but in the process of having them prepared. Mr. Cortellino stated, I am not asking that, we will make it short. The last time that you went to the Planning Board was six months ago. Mr. Cantor answered, approximately. Mr. Cortellino stated, approximately. You thought you needed a variance, they thought you needed a special permit. Mr. Cantor answered no, we knew we had the variance. We were trying to explain to them all we needed was site plan approval. Mr. Cortellino stated, okay, fine. So then you started drawing up your plans. Mr. Cantor answered, that is correct. Mr. Cortellino asked, did you ever submit them to the Planning Board. Mr. Cantor answered, no, because in the process of drawing them up the time ran out on us. Mr. Cortellino aksed, how long does it take to draw up a set of plans. Mr. Cantor answered, in this case quited some months. Mr. Cortellino stated, then they couldn't have been the plans that were before us a year ago, therefore, we can't act on it, because we did not see the new plans. The plans we gave the variance for were a year ago. .Page -11- May 14th, 1985 Mr. Cantor stated, you have a strange logic. I told you ......the application before you is for an extension of the exact same thing that you already approved. Mr. Cortellino stated, I have to determine whether, as Mr. Hirkala stated, it has expired and in that case we do'not grant an extension on an expired variance, we grant a new variance. Mr. Cantor stated, there are two differnt things, whether you can and whether you choose to. Mr. Hirkala stated, in my view this is an expired variance and if you had come in for application prior to January 10th, January 17th, whatever the legal date may be, then, if the letter was sent prior to that there would be some question, but we are talking about three months after that point, then a request comes in for an extension of a variance that had already run out. The time limit had run out. Are you saying that next year will be okay to come in and ask for an extension. It is specific. It says one year, it doesn't say one year, three months. That is what I have a problem with. Mr. Cantor stated, it is, within one year we do not need an extension. It is after one year that you need the extension. Mr. Hirkala asked, how long after one year, three months, six months, two years, five years, how long. Mr. Cantor stated, I would certainly that 150 years later would be to late. Mr. Hirkala stated, and what isn't too late. I don't think it is our perview to say what is or isn't too late. Mr. Cantor stated, three months isn't too late in terms of your legal power. I can't speak for how you choose to use it. I understand that is your discretion. I am speaking in terms of the legal power. Mr. Hirkala stated, my personal feeling is that this extension can't even be considered because it is an expired application. Mr. Cantor answered, except we communicated with you in April, and gave you expressed sitations and requests that I understand we can't direct, but we requested that you consult with the Town Attorney so that when we came before you we wouldn't have this dispute. You would either say we can't because we consulted with our attorney. Mr. Hirkala stated that that is not the point at all. It says right here, in case where a recipient of a variance has not commenced the use within in the started time you do have the legal power to grant an extension of time, and this is your words, and you are right, but the request has to be made prior to the end of expiration, not three months later, that is my point. Mr. Cantor answered, I understand your point very clearly. I am suggesting your point is an error. I am suggesting that if you check with your own Town Attorney you might get a confirmation of the point I am making. There is nothing in your ordinance sir that prohibits you from granting the extension after the time of expiration. Mr. Cortellino stated, there is nothing that prohibits us, but nothing that directs us, therefore, we can choose the first option. You use the example 150 years, which, by your reasoning, if you came in 5 years, there is nothing in our ordinance to deny you the extension for 5 years, or even if you want to use the 150 years, there is nothing in our ordinace that says we can't do it in 150 years. Page -12- May 14th, 1985 Mr. Cantor stated, there is a very clear concept that would be applicable, although one can't put a date to it and abstract discussion. The concept is the time limit kw is too late, is one of the circumstances pertaining to the site are different. But, the circumstances pertaining to the site tonight are the exact same circumstances pertaining to the site on January 10th, 1984. Mr. Hirkala asked, then why wasn't this Board communicated with prior to the expiration date to the fact that it was impossible for this applicant to fulfill his responsibilities within a year. Mr. Cantor stated that I can't answer that question. Mr. Lieberman stated that he could answer that question. I had a sickness in the family, my sister went for heart surgery, that was more important than a variance. Mr. Hirkala answered that I could go along with that. Mr. Lieberman stated, this Board asked me to do something nice with that property, to rip down a structure that is too close to the road, and I was willing to throw away $80,000 worth of improvements to conform to this Board. And, I am tellin you tonight, whether you grant me the variance or not, I will have what I want there, one way or another, with conforming to that old building or putting up the new, that is up to you. Mr. Hirkala asked, what do you mean one way or another. Mr. Lieberman went on, I have the right under the Zoning Law. Mr. Cantor stated, what he is saying is what we said in the letter, that if you elect not to extend the variance that we have the right to go in for a special permit, which is a matter or right assuming we comply with the requirements, and under that special permit the existing improvements will not be relocated. Mr. Hirkala asked, who says? Mr. Cantor answered, the Zoning Ordinance says, and they will be slightly smaller, and you collectively, the Zoning Board won't have, because the Zoning Ordinance doesn't permit, not because we don't want, becuase the Zoning Ordinance doesn't permit the kinds of changes that you asked the applicant to make when you were considering the first time around the variance. In your deliberations you said, it would be better, in your opinion, if you did a, b, & c, and the applicant modified the plans that he originally came in with to achieve a, b, & c at your request. Those are things that he can't do without a variance. But, what he can do without a variance is the basic proposal, not 52 percent, not 55 percent, but 50 percent. Mr. Cortellino stated, I grant that, but can he do the carwash. Mr. Cantor stated, yes, absolutely. Mr. Cortellino stated no, where does it say that he can do the carwash. Mr. Cantor answered, in your definition of a gas station sir, it includes carwash. Mr. Cortellino asked, as another use. Mr. Cantor answered, no, as part of the gas station. - Page -13- Mr. Cortellino stated, then he needs a special permit. Mr. Cantor answered that is correct. May 14th, 1985 Mr. Cortellino asked, who does he go to for a special permit. Mr. Cantor stated the Planning Board. mr. Cortellino answered no. You come before us, do you want to come for a special permit now. I have what is required for a special permit in my hand. Mr. Cortellino made a motion that we don't grant the extension. Let them go to the 50% expansion and the special permit. The motion was seconded by Mr. Hirkala. Mr. Landolfi asked if there was anyone to speak either for or against this appeal. There was no one. Mr. Landolfi stated that we will now close this appeal. Mr. Cortellino stated that the motion is that we do not grant the extension..... Mr. Hirkala requested a change in the wording. I would like to see a change in the wording to state that, not that we are not granting an extension we are just not entertaining the extension. Mr. Cortellino stated, we are not entertaining the extension since a year has gone by and the action came too late. Mr. Hirkala seconded the motion. Vote: Mr. Landolfi - aye Mr. Cortellino - aye Mr. Hirkala - aye The motion was carried. Mr. Cantor asked, if I might, so that we have a clear record, do I correctly understand that the reason for your action is because we are after the one year. Mr. Cortellino answered, it is because the time limitation has expired. Mr. Cantor asked, is that the one year time limitation sir. Mr. Cortellino answered, that is correct. Mr. Cantor asked, is that the reason why you choose to right now. Mr. Cortellino answered, that is correct. Mr. Cantor stated, I just want to make sure I understand before I leave here. Mr. Cortellino stated, I believe the policy it would have to do would be to apply for the variance again, if you wanted a variance. Mr. Cantor asked, do I then, I understand you voted, just so we leave with a clear direction, do we understand then that when we elect to come back with an application for a special permit.... 'Page -14- May 14th, 1985 Mr. Cortellino stated, or a variance, you could come in for a variance also. Mr. Cantor went on, that it is under the provisions of the ordinance which prohibit moving of the structure. Mr. Hirkala stated, whatever provisions you want, you can come into. You can come in for another variance for the same application and everything all over again. Mr. Cortellino stated, this special permit opens up another thing. The buildings can be moved on a special permit. Mr. Hirkala stated, I would like to make a motion to amend the previous motion that the variance extension was not allowed without prejudice. There will be no prejudice on re-application. Mr. Cortellino seconded the motion. Vote: Mr. Landolfi - aye Mr. Cortellino - aye Mr. Hirkala - aye The motion was carried. Mr. Cantor asked, without prejudice to what. Mr. Hirkala answered, in other words you can come back here with the same plan and if the conditions haven't changed ............. Mr. Landolfi read the next appeal: Appeal #800, at the request of Tim Gale seeking an interpretation of §412 of the LV Town of Wappinger Zoning Ordinance. Jack Railing was present. Mr. Railing stated that this particular parcel is a large parcel, and it is in two zones. The front on New Hackensack Road is Airport Industrial - Two acres, and then the bulk of the property is in R-40 zone. The only frontage that this particular parcel has is on New Hackensack Road. The applicant does have a 50 foot right-of-way which goes out onto All Angels Road. Mr. Cortellino asked who owns that property. Mr. Railing stated that he did not know whether he has his name on the map. The problem becomes, and it is one of a little bit of a hardship and a little bit of the law and that is why I really started out with an interpretation before I go into a variance and that is when I came before the Planning Board I proposed to show 25 foot frontage off of New Hackensack Road for each of the two residential lots. There is no problem with the AI -2A, that can take access from New Hackensack. I had come before the board with a three lot subdivision. Mr. Cortellino stated, so you have a problem number 1 with the frontage on New Hackensack. Mr. Railing answered, we don't want to take residential access off New Hackensack Road for a couple of reasons. One, is because it is New Hackensack Road, it is a heavily St traveled road and we are just going to develop the AI -2A off of there. Also, you are dealing with a stream which runs through the property which causes a bit of an expense for a residential as opposed to an industrial piece. You can see the flood plain he would have to cross and he would have to build a considerable bridge accross that or some type of a structure whatever it may be. So, there is some practical difficulty Page -15- Mayl4th, 1985 in that for the residential people as opposed to a commercial which might be able to afford a little bit more. We are dealing with really two large lots, so we had asked to utilize the right-of-way by spliting that in half and giving both parcels a 25 foot right -or -way. Mr. Cortellino asked, since they are already, there are two ROW's through that lot. There is a Central Hudson. Now, who owns that lot. The reason I ask is, how does that persons who lives there get out to All Angels. Mr. Railing stated that he has a driveway which, I think, also covers accross that same ROW, or it is very close. The ordinance, some of the words are, and or's, ect..... (he then read from the Zoning Ordinance.) My question is one, first of all of the constitutionality of it, which I don't know if that is really your perview or not, but also some of the wording, it is an and -or type of a situation, there area some or's and and's in there, some of the Planning Board members felt that there is no question, you have to take your access from that 25 foot frontage, but than they have the and -unless, ...... Let me give you another example, I think I could try and make a case for Tim in this particular case because he does have the practical difficulty of.the stream crossing and you do have New Hackensack Road, etc., I think the access would be probably better serve the needs of the Town off of All Angels Road rather than on New Hackensack, cutting through an Airport Industrial. Mr. Cortellino asked, if he has such a big lot, why doesn't he sell off.that 50 foot strip. Mr. Hirkala stated that it looks to him like there are alternatives here. Mr. Railing stated that he has the alternative there, it has already been provided for, for whatever reason, that ROW existed. Mr. Hirkala asked how long that ROW been there. Mr. Railing stated that he could check and get that answer. Mr. Hirkala asked why don't you do that. How long has it been since that ROW has been applied to this property, and if you can find out some documentation for the purpose of applying that ROW to this property. Mr. Railing stated that there is some practical difficulty in economics that can apply and it even sites that in the brochure. There was a discussion on the Zoning Ordinance. Mr. Railing asked, does this ordinance state that if I have 25 feet on a Town Road I have to take my access through that 25 feet. Mr. Hirkala stated, no, it doesn't say that. What it does say is that the 25 feet has to be on deeded land. It has to be part of the lot. Mr. Cortellino stated, I have 25 feet which meets the requirements on Road A, however, for some reason I don't wish to go out on Road A, but I have fulfilled the legal requirement that I had 25, but I am going to go out through B somehow and I would say if that is the way it is written, my interpretation is that is not what they meant. My interpretation would mean that if I specify that there has to be 25 on a Town Road, then I expect that you would drive out on there. 3 `Page -16- May 14th, 1985 Mr. Hirkala stated that if you have 25 foot, you don't have to use that 25 foot, but you are going to have to find 25 foot someplace else, even if you have to but another piece of property. Mr. Landolfi stated that you could avoid the variance process by pursuing that. Mr. Railing asked, other than that, what you are saying is the variance. Mr. Hirkala stated that he would have to get a legal interpretation. I don't know whether that would be a variance or if that would be a change in the.......... Mr. Railing asked, I would like to find out whether or not, if I come in with Mr. Gale's with a good case, can we in fact do it. Mr. Landolfi asked Ms. Berberichto refer this appeal to the Town Attorney. Janet Anatelli was present about the same kind of interpretation. There was a discussion on 25 foot frontage. Mr. Landolfi stated that we have the Schnorr case to discuss.At our workshop session with the Town Board they kind of threw it back in our lap meaning we have the perogative to either re -open if we so deem or let it stand. They understand our concern. Mr. Hirkala made a motion to table this case until the other members of the Board are present. The motion was seconded by Mr. Cortellino. Vote: Mr. Landolfi - aye Mr. Hirkala - aye The motion was carried. Mr. Cortellino -aye Mr. Cortellino made a motion to adjourn the meeting. The motion was seconded by Mr. Hirkala. Vote: Mr. Landolfi - aye Mr. Hirkala - aye Mr. Cortellino - aye The meeting was adjourned at 9:13 P.M.. lb Respectfully submitted, Linda Berberich, Secretary Zoning Board of Appeals