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1985-06-27Im ZONING BOARD OF APPEALS JUNE 27TH, 1985 - 7:00 P.M. AGENDA (SPECIAL MEETING) PUBLIC HEARING: TOWN HALL MILL STREET WAPP. FALLS, NY 1. Appeal #821, at the request of Barger & Luckel seeking a variance of Article IV, §421 of the Town of Wappinger Zoning Ordinance to allow a 15 foot sideyard setback when 20 feet is required on Lot #10, Cedar Creek Estates, and being Parcel #6258-03-305153, in the Town of Wappinger. ZONING BOARD OF APPEALS JUNE 27TH, 1985 - 7:00 P.M. MINUTES TOWN HALL MILL STREET WAPP. FALLS, NY The special meeting of the Zoning Board of Appeals was held on Thursday, June 27th, 1985, at the Town Hall, Mill Street, Wappinger Falls, New York, beginning at 7:00 P.M.. Members Present: Mr. Landolfi, Chairman Mr. Cortellino Mr. Caballero Mrs. Waddle - aye Mr. Hirkala Others Present: Ms. Linda Berberich, Secretary Ms. Anna Angell Young, Zoning Administrator Mr. Bernard Kessler, Attorney to the Town Mr. Landolfi called the meeting to order at 7:00 P.M.. Mr. Landolfi then asked if all the abbutting property owners been notified. Ms. Berberich replied that they had according to the records available in the Assessor's Office. Mr. Landolfi then read the appeal: Appeal #821, at the request of Barger & Luckel seeking a variance of Article IV, §421 of the Town of Wappinger Zoning Ordinance to allow a 15 foot sideyard setback when 20 feet is required on Lot X610, Cedar Creek Estates, and being Parcel #6258- 03-305153, in the Town of Wappinger. Mr. Jack Railing and Mr. Peter Luckel were present. Mr. Landolfi stated that this is the one that is due to close.... Mr. Luckel added, tomorrow. Mrs. Waddle stated that she would like some kind of assurance that acting on this case tonight will not influence our talk with the Town Board to the re -zoning of the area over there and not going to set a precedent in our talk. I think we need a special case on this. Mr. Landolfi stated that he assures her that he would like to think that we way each case on its own merit anyway, independent. Mrs. Waddle stated that she knows that but, I think on one side they may say, hey well you granted them the variance here and on the other side you are asking us to re -zone the area. Mr. Landolfi stated that if you recall at our last meeting I thought there was some sort of consensus of the Board that we would handle it in this manner, by the way that doesn't mean what way we are going to vote on it yet. Mr. Landolfi asked, how far away are we if in fact the variance were granted are we away from issuing the CO. Ms. Young answered that she did not know where the plot plan was at present, I believe that Mr. Evangelista has it. Page -2- June 27th, 1985 Mr. Luckel stated that he has been notified of the need of that, he was going to try to expedite things, if Frank was to talk with him as well. It is that close. Mr. Landolfi asked if the closing could take place. Mr. Luckel answered, not without the final plot plan. Mrs. Waddle stated that they can't do anything without us tonight. Mr. Versace stated, just for clarification purposes, I am not hear to influence you gentlemen one way or another, but I would like to clarify some statements made at the June 11th meeting with the applicant related to statements that they had made that the Town Board was well aware, or the Supervisor was well aware of the problem that they had with their site plan. One, that is a very negative answer on my part, we were not aware of it until your secretary notified my office that you people wanted to meet with us because there was a problem in Cedar Creek. Secondly, the plot plan should not have any bearing on your decision on whether you are going to grant this variance or not because the plot plan is only the reviews done by the Zoning Administrator, Highway, and the Engineer and if thats in order that the only time a CO will be issued, but the track record has been that even the as builts are being rejected, so there is no guarantee that this one being submitted will not be rejected by the Engineer. Mrs. Waddle asked why the as builts were being rejected. Mr. Versace answered, because of the submissions and the requirements that the Engineer is looking for on the as builts which are not being done by the developer and the engineers when they are submitting to us. There are certain entities that we are looking for on these as builts relating to water & sewer lines, contours, drainage, trees that are supposed to be there, we want complete as builts which we are not getting, so these are why they are basically they are being rejected. Mrs. Waddle asked, so you are telling me that even if we granted a variance tonight that the CO wouldn't be issued that quickly. mr. Versace answered, what I am saying to you is that we do have the as built as far as the Engineer, if that is not submitted properly, it will be rejected and the cycle will have to start again and it will have to go back to the engineering office to be re -submitted putting all of the entities that we are looking for are on as built. Mr. Luckel stated that, if there are errors on it. Mrs. Waddle asked, you say you are going to close tomorrow. Mr. Versace stated, there are no guarantees, and I am not here to influence you one way or another, but I want to correct. Mrs. Waddle asked Mr. Luckel, you can close without a CO. Mr. Luckel answered no. Mrs. Waddle stated, then you don't even know if you have a CO tomorrow. Mr. Versace stated that he would just like to finish that. At the June 11th, meeting when the applicants appeared in front of you, my office was not aware that you people Page -3- June 27th, 1985 or they had problems concerning the request for variances, okay. The only time I became aware of the problem when the submissions of the preliminary plot plans were being submitted to the Zoning Administrator and she has indicated to me that they could not meet sideline yard variances, at that time our sideline requirements. At that point in time they were rejected, what happened after that was the appearances for variances to you people, but had indicated that mine was aware through my office and the Town Board was aware, but if you read the minutes of the meeting I believe Mr. Cortellino or Mr. Hirkala asked a question that they had been to the Planning Board and they said yes, the question came later, were you at the Town Board, and they said no, which contradicts the fact that the Town Board was aware of it. I just want to clarify that. Mr. Landolfi asked if there is anyone here this evening to speak either in favor or against this appeal. There was no one. Mr. Landolfi asked if there were any questions from the members of the Board in addition to the information that we have before us. Mr. Caballero stated, let me understand, how did you end up building a house with 15 foot setback when 20 feet is required, whos fault was that? Mr. Luckel answered, because again, the subdivision was approved over a year ago, okay, right on the subdivision map, signed by everyone involved with 15 foot sideyards. Half of the homes are built under that premise, this house is completed, and that is why we are looking at this with a special consideration. It is up, it is done, it was built under that premise of 15 foot sideyards. Mr. Cortellino asked, why did some of the lots, like 1,2,8,9, and 15 came in showing the 20 foot sideyard requirements for fill. Mr. Luckel asked, for fill. Mrs. Waddle stated that the plot plan says that they did not meet that. Mr. Cortellino stated, right, they did not meet it, but, the proposed subdivision map showed that they met it, at one time they showed 1,2,8,9, and 15 showed that they were meeting the 20 foot sideyard requirement setback but the plot plans later submitted for those lots were rejected because they did not meet the 20 so apparantly there was a shift somewhere along the line. Mr. Luckel stated that, probably because of the size of the houses, that is the only way I can answer that. Mr. Railing stated, the original subdivision probably illustrated graphically a potential possible location for a house on those particular lots. I don't think they were trying to say that anyone who would buy that lot would put it exactly within that footprint of that house and anyone else coming and purchasing a lot, even if Peter wasn't building on it, may have moved that house either one way or the other and seeing on the map a 15 foot sideline would feel comfortable putting that house within, up to 15 foot of that sideline, so I think thats what really is happening. Mr. Cortellino asked, so what you are saying its the size of the house that is creating the problem, not the sizes of the lots. Page -4- June 27th, 1985 Mr. Railing stated, whenever we do a subdivision for the Planning Board to look at we show them a suggested or a potential house location. It doesn't necessarily mean that is exactly where that house is going. Mr. Luckel stated, that it is just a box with driveway, there is no design to the house. Mr. Railing stated, sometimes we use 30 x 50, sometimes we use 24 x 441, we don't really know what...... Mr. Landolfi stated, well that being the case, I can foresee, that is something we will talk about at a later. I have a problem with that. Mrs. Waddle asked, Mr. Chairman, would it be in order, i don't know if we can do this or not, but, could we recess the meeting of the Zoning Board until after we met with the Town Board and then reconvene because I think we may have more information to work with at that time and can make a more logical decision on this and I, we were going to meet with the Town Board at 7:30. Mr. Landolfi answered, I believe we are scheduled for 7:30, is that correct. Mrs. Waddle went on, and then we recess and then convene after we meet with the Town Board and make a decision because I think this is getting a little sticky. Mr. Cortellino stated, I think we could recess, we can get further information, if you decided you wanted to go and see a sight, you.could recess. Mr. Caballero stated that if she makes that a motion, he seconds it. Mrs. Waddle stated that she makes a motion that we recess until we meet with the Town Board and reconvene our meeting. Mr. Hirkala added, recess the public hearing. Right now we are in the process of a public hearing, are we going to recess the public hearing or close the public hearing. Mrs. Waddle stated, I would recess that public hearing at this time. Mr. Luckel asked if they could explain what recess means. Mr. Landolfi stated, in other words, what Mrs. Waddle is suggesting, but I don't know whether, is it feasible. Mr. Versace stated, not for this evening. After we meet with you we will have a continuous workshop session. Mrs. Waddle stated, we could meet in another room. Mr. Versace stated, let me give you some input for the Zoning Board, even if you do meet with us tonight, no decisions will be made from the Town Board. We are here to listen to the problem. We will not have any input related to the specific problem that you people have in front of you. Whatever you decide you want to do is fine with me, but there will not be any commitments made tonight from this Town Board because we cannot, it is a workshop session and it will have to be redone at a regular Board meetinf. Page -5- June 27th, 1985 Mrs. Waddle stated, I think we are looking for a discussion, some kind of a dialogue, Frank, to see what direction we may be going in with this whole thing. Mr. Landolfi stated, we have some recommendations we would like your Board to consider and I think perhaps depending on what way your Board would go on that would perhaps influence our decision on this case. Mr. Luckel stated, keeping in mind though that this house is one that exists, the things we are going to talk about later, there is no houses on the lots. Mr. Landolfi answered that he understands that. Mr. Luckel stated, we can't move this anymore now, it was built under the premise of the 15 foot sideyard. Mr. Hirkala stated, in all honesty, I think we should recess this. I would like to discuss it further with the Town Board and see what kind of input comes around and try, I would like to get to it tonight though to finalize this one way or another. Mrs. Waddle made a motion to recess. Mr. Hirkala seconded the motion. Vote: Mr. Landolfi - aye Mr. Cortellino - aye. Mr. Caballero - aye Mrs. Waddle - aye 046, Mr. Hirkala - aye The motion was carried. The meeting was recessed at 7:15 P.M.. The meeting was called back to order at 8:50 P.M.. Mr. Landolfi stated that we did not close this hearing. Is there anyone here to speak either in favor or against this appeal, if so please come forward and identify yourself for our records. Mr. Ritter stated, I am Leo Ritter, and I represent the applicant in this particular matter. When the time is appropriate, Mr. Chairman, I would like to ask the applicant some specific questions under oath, if I may. Mr. Landolfi stated, okay, lets do so. Mr. Hirkala stated that he would like to have our Attorney listen to the questions under oath. Mr. Landolfi asked Mr. Kessler to come forward so that he could hear. Mr. Landolfi asked Mr. Luckel if he solemly swears to tell the whole truth, so help me god, under the laws of perjury. Mr. Luckel answered yes. Mr. Ritter asked, your name please. Peter Luckel. Page -6- June 17th, 1985 Mr. Ritter asked, and what is your address. Mr. Luckel answered, 60 Kent Road, Wappinger Falls. Mr. Ritter asked, are you the applicant here. Mr. Luckel answered, yes sir. Mr. Ritter asked, and are you the owner of this lot 410. Mr. Luckel answered, yes. Mr. Ritter asked, and you have made this application for a variance to permit the house to be 15 feet from the side lotline as compared to 20 feet. Mr. Luckel answered, yes sir. Mr. Ritter asked, and now, Mr. Luckel, this house was, its completely finished or completely built now. Mr. Luckel answered, yes sir. Mr. Ritter asked, and with the exception of this particular problem of the variance and securing the Certificate of Occupancy, everything is ready to go. Mr. Luckel answered, yes sir. Mr. Ritter asked, is it under contract to sell at this time. Mr. Luckel answered, oh yes. Mr. Ritter asked, and has, was this house constructed specifically pursuant to a contract of sale. Mr. Luckel answered, yer it was. Mr. Ritter asked, and that house was a personalized or specific house for a particular person. Mr. Luckel answered, yes, a custom home. Mr. Ritter asked, this particular person is presently living in an apartment I understand. Mr. Luckel answered, yes. Mr. Ritter asked, and this being the 27th day of June, 1985, needs to get out of the apartment by the end of June. Mr. Luckel answered, yes sir. Mr. Ritter asked, and as a result, needs to move into this house as rapidly as possible. Mr. Luckel answered, that is correct. Mr. Ritter asked, now, this house was built pursuant to a subdivision, in a subdivision in which there was a subdivision map prepared and filed with the Planning Board, is Page -7- June 27th, 1985 that correct. Mr. Luckel answered, yes. Mr. Ritter asked, and when was that subdivision map filed or signed by the Planning Board of the Town of Wappinger. Mr. Luckel answered, well I don't know the exact date, it was sometime last year. Mr. Ritter asked, for the record can we refresh your recollection that it was September of 1984, and prior to that time, prior to September of 1984 had there been preliminary approval by the Planning Board. Mr. Luckel answered, yes. Mr. Ritter asked, and had there been Health Department approval of these lots as far as you know by the Planning Board. Mr. Luckel answered, yes. Mr. Ritter asked, and did the subdivision map provide as far as Lot #10 is concerned that the house was to be built a minimum of 15 feet from the side lot line. Mr. Luckel answered, yes. Mrs. Waddle asked Mr. Ritter to repeat that question. Mr. Ritter asked, did the subdivsion map, which was filed and signed by the Planning Board provide that the side lot line of the house had to be 15 feet from the sideline. Mr. Luckel answered, yes, according to the typical layout, yes. Mrs. Waddle asked, what is the date of the map. Mr. Ritter answered, September 21, 1984. Mrs. Waddle asked Mr. Luckel, you applied f9r a building permit for that Lot #10 on 5/15/84, I have it right here, which says that you were going to build it in R-20. Mr. Luckel answered, according to this, we are bulding according to this. Mr. Caballero stated, the permit says R-20. Mrs. Waddle stated, the building permit says R-20. Mr. Ritter asked, you are talking about the zone, is that what you are referring to. Mrs. Waddle answered, yes. Mr. Ritter answered, yes, okay. Mr. Ritter asked, otherwise you were building in the R-20 zone, is that right. Mr. Caballero stated, which requires a 20 foot setback, sideyard. Mr. Ritter stated, but the subdivsion map provides for the 15 foot, is that right. Page -8- June 27th, 1985 Mr. Luckel answered, that is correct. Mrs. Waddle stated, that was after he applied for the bulding permit since that was dated 5/15, he obviously had planned to build it with the 20 foot setback. Mr. Ritter stated, I would object to anything that is obvious, the subdivsion map says that it is 15, and there is no question about that, it is a matter of record. Mrs. Waddle stated, so is the building permit sir. Mr. Hirkala asked if he could ask a question. Mr. Hirkala asked Mr. Luckel, did the preliminary map as filed with the Planning Board for preliminary approval show a R-15 setback on, as the final shows. Mr. Luckel answered, I am not sure of the question. You are saying on Lot 10. Mr. Hirkala asked, no what I am asking, no, on, the final map says has a typical R-15 layout, what I am asking is if the prleiminary map was entered to the Planning Board had that same typical layout. Mr. Luckel answered, I don't know, this is the final signed map, I don't know what the preliminary map, I don't recall. Mr. Hirkala stated, the point I am trying to bring out is whether or not the Planning Board reviewed in its review of the subdivision, right on up to the time it was presented for final, a map that had that typical on it, or was the typical put on it just prior to review for final approval, therefore, the fact that the Planning Board r++ never saw that typical until it came before them for final approval. Mr. Ritter stated, I will ask you this question, and, can you build or could you get a building permit without the final map being filed and signed by the Planning Board. Mr. Luckel answered, no, definitely not. Mrs. Waddle asked, why did he have a building permit signed 5/15 for that same lot. Mr. Ritter asked, did you get a building permit. Mrs. Waddle answered, yes he does, Mr. Ritter asked, did you get a building permit or did you apply for one. Mrs. Waddle stated, yes, he has it. Mr. Hirkala stated, building permit, Town of Wappinger, New York, hereby granted to Luvluk Inc. to erect a single family residence, District R-20, dated 5/15/84. Mr. Ritter asked, and the Building Inspector was authorized to issue a permit at that stage. Mr. Caballero answered, on an R-20. Mrs. Waddle stated, on an R-20, then he brought in that map to the Planning Board in September and it had R-15 on it. Page -9- June 27th, 1985 Mr. Ritter asked, which lot was that. Mrs. Waddle answered, 10. Mr. Landolfi stated, 10, the one in question sir. Mr. Ritter asked, how can you have a lot in which there is no subdivision. Mrs. Waddle answered, there was a subdivsion obviously, there were preliminary plans and the building permit was issued. Mr. Ritter asked, are you permitted to build with preliminary plans. Mr. Luckel answered, that permit was strictly for roughing a road into the subdivision that is all it was for. Mrs. Waddle stated, I am sorry, it was foundation, walls, main building, concrete slabs, the whole thing, the building application was put in that see plot plans, there is nothing about saying just roughing roads, foundation, heating. Mr. Luckel stated, if you were to dig that map out you will find we are talking about, it does not show any of the lots on it at all. It shows one lot, in other words, the entire subdivision you are granted one permit for the entire subdivision to rough your road in, that is what that was for. Mr. Kessler asked, Leo, have you finished your completion of your examination. Mr. Ritter answered, right now, yes. Mr. Kessler stated, okay, I am going to have to ask some questions then. Mr. Kessler asked, are you personally the free owner of this property, or is it in the name of a corporate entity. Mr. Luckel answered, it is two names, Barger & Luckel. Mr. Kessler asked, is that a corporation or a partnership. Mr. Luckel answered, a partnership. Mr. Kessler asked, and is that the ownership as in the Luckel & Barger actually since you purchased the property. Mr. Luckel answered, yes. Mr. Kessler asked, when you purchased the property, you knew at that time did you not that the entire property was located in an R-20 zone. Mr. Luckel answered, did I know, yes, but we used an average density. Mr. Kessler stated, I understand, never the less, knowing, you are an experienced builder, are you not. Mr. Luckel answered, yes, I am. Page -10- June 27th, 1985 Mr. Kessler stated, this is not the first project that you have built. Mr. Luckel answered, the first subdivision I built, yes. Mr. Kessler asked, how about Barger, I think I have heard of his name before, is he an experienced developer would you say. Mr. Ritter stated, objection as to what his knowledge is of Barger or his ability to judge him as an expert. Mr. Luckel stated, its the first time I contracted with him. Mr. Kessler asked, in any event, knowing that this property was in an R-20 zone, when you saw the typical layout as a 15 foot setback, did you tell that to anybody. Mr. Luckel answered, he explained he was using the average density. Mr. Kessler asked, who explained it to you. Mr. Luckel answered, Mr. Barger. Mr. Kessler asked, and he told you then he was using average density under the Zoning Ordinance and therefore you did not need 20 foot setbacks, is that what you are telling us. Mr. Luckel stated, this was even explained to the Planning Board. Mr. Kessler asked, was it explained to you. Mr. Luckel answered, of course it was. Mr. Kessler asked, and knowing that when it showed the 15 foot minimum sideline setback did you tell the person when you sold them the house or the lot that it was an R-20 zone. Mr. Luckel answered, no, I don't get into the zoning when I sell the house. Mr. Kessler stated, in any event, did there come a time when you, did you ever actually transfer title to Lot 410 to anyone up to the present time. Mr. Luckel answered, no. Mr. Kessler asked, its still in Luckel & Barger, is that correct. Mr. Luckel answered, right. Mr. Kessler stated, the only thing you have at the present time actually then is a .contract to purchase, or somebody to purchase the lot and the house and once the house is completed, is that correct. Mr. Luckel answered, that is correct. Mr. Kessler asked, that contract has not as yet been consumated with the exception of a down payment, is that correct. Mr. Luckel answered no, the man has paid full price for the lot over the last four months, he paid it up front. Page -11- June 27th, 1985 Mr. Kessler asked, was it financed with any institution. Mr. Luckel answered, was what financed, the money he gave me. Mr. Kessler answered yes. Mr. Luckel answered, I have no idea where he got it from. Mr. Kessler asked, you don't know if he got a building construction loan or not. Mr. Luckel answered,his money, where he got it I don't know. Mr. Kessler asked, and that contract that you say is supposed to be closed very shortly. Mr. Luckel answered, yes sir. Mr. Kessler asked, do you have a written contract to that effect. Mr. Luckel answered, oh yes. Mr. Kessler asked, have you presented it to this Board. Mr. Luckel answered, no, it was never asked for. Mr. Kessler asked, is that available to you. Mr. Ritter answered unquestionably, no doubt about it. Mr. Kessler asked, did that contract provide when is the completion of that work is supposed to be done. Mr. Luckel answered, definitely. Mr. Kessler asked, when did that contract state in there as to when that house was supposed to be completed. Mr. Luckel answered, the end of this month, the end of June. Mr. Kessler asked, and did that contract provide that you as the builder were to obtain the Certificate of Occupancy. Mr. Luckel answered, yes sir. Mr. Kessler asked, and that Certificate of Occupancy was supposed to be obtained at your expense, not at the perspective purchasers expense, is that correct. Mr. Luckel answered, that is true, ultimately he pays the entire bill. Mr. Kessler asked, and when you came in for the building permit, on May 15th, 1984, at that time, was that the same person that you were dealing with to sell the house to eventually. Mr. Luckel answered, yes. Mr. Kessler asked, did you ever turn over the copy of that building permit to the perspective purchaser of the lot and house. Page -12- June 27th, 1985 Mr. Luckel answered, no, it is matter of record, we keep it. Mr. Ritter asked Mr. Luckel, the house that was constructed on Lot 410, is that a custom house. Mr. Luckel answered, yes it is. Mr. Ritter asked, and is that a custom house as designed and built specifically for this person or people you have contracted with. Mr..Luckel answered, yes sir. Mr. Ritter asked, and that contract is available for the Board. Mr. Luckel answered, definitely, sure. Mr. Ritter asked, thats affiliates to then the other parties were represented by some other person or some other Attorney, is that correct. Mr. Luckel answered, yes. Mr. Ritter asked, and it would be a hardship that this variance were not given. Mr. Luckel answered, very much so. Mrs. Waddle asked, on who. Mr. Luckel answered, on the people buying the house they are out on the street this weekend. Mrs. Waddle stated, well they don't own it yet, you do. Mr. Luckel asked, what does that have to do with it. Mrs. Waddle answered, because you have to prove hardship. Mr. Luckel stated, there certainly will be a hardship, a very big hardship. Mr. Ritter asked, can the house be readily moved. Mr. Luckel answered, definitely not. Mr. Ritter asked, what size is the house. Mr. Luckel answered, it is 30 x 57. Mr. Ritter asked, did you build this specifically because of the condition that is fore sighted in the subdivsion map that was approved by the Town Planning Board. Mr. Luckel answered, yes sir. Mr. Ritter stated that he had no further questions. Mr. Kessler asked, do you own the continuos lot. Mr. Luckel answered, no I don't. Page -13- June 27th, 1985 Mr. Kessler asked, who owns that. Mr. Luckel answered, the gentlemen were here earlier, I don't recall the last name. Hank Santis? Mr. Kessler asked, has the title closed on that. Mr. Luckel answered, oh yes. He owns three lots. Mr. Kessler asked, on either side. Mr. Luckel answered, the one on the other side is lived in already, that home is lived in. As I stated earlier, the subdivsion is sold out. There is contracts for every home on every lot in there. Mr. Fanuele, Chairman of the Planning Board. Mr. Fanuele stated, the one thing that the Planning Board cannot change zoning. We never had that power to change the zoning, the development says whatever it says, we can't change it. I am only here know because he brought up the Planning Board and I have to defend the Planning Board. This application was never brought to us before as an average density subdivsion. It was brought to us as an R-20 Subdivision, and since the Planning Board cannot change the zoning, its an R-20 zone. Mr. Landolfi asked if there was anyone else to speak either for or against this appeal. Mr. Ritter stated, just for the record and of course it is subject to your own legal council, the, because that is not my perogative, but just for the record, of course Vic, the Planning Board, by vertue of Town Law Section 281 does have a right to make modifications to subdivision maps or subdivisions that they approved as to density and zoning requirements. Mrs. Waddle asked, Mr. Kessler, are you in agreement with that. Mr. Kessler stated, well, what Vic said, that they cannot change zoning, I agree with what Vic said, the Planning Board cannot change zoning. They can modify site plan maps is what Leo means. Mr. Hirkala asked, can they modify the setbacks that the Zoning Ordinance specifically says, the setback is such and such. Mr. Kessler answered, the Planning Board has no authority over that. Mr. Incoronato stated, it has to be applied for and it has to go before the Town Board. Mr. Ritter stated, I say Section 281, it doesn't say it has to go before the Town Board. Mr. Mills stated, the only point I want to make, Mr. Chairman as a member of the Planning Board, the applicants never applied for any average density under 281 of the Town Law. That was brought up when they came in and a variance problem and suggested it and obviously then it is to late. Mr. Luckel stated, the mere submission of this subdivision map you people look at, isn't that. Mr. Mills stated, there is a Zoning Ordinance, Mr. Luckel that as far as I am concerned complies, it says R-20 has got a 20 foot sideyard. Page -14- June 27th, 1985 Mr. Ritter stated, we don't disagree with that, what we are saying is that unfortunately there was a mistake made, it is a hardship situation, we have a house that is already on this lot and it would really be unfair hardship an unreasonable hardship to force these people to tear this house down because of that. Now, admittedly there was an error made, and that was unfortunate but we have a house up there that is probably worth $150,000.00 and that practical matter that cannot be moved. Mr. Mills stated, that partnership of Luckel & Barger, Engineering firm of Barger & Russ has been in front of this Planning Board as long as I have been a member and when I was on the Town Board back in 1967, so they are not virgins an started building in the Town of Wappinger. Mr. Fanuele stated, I don't think there is any question that this gentlemen has a hardship with the building, but I resent the fact that he is saying the Planning Board has done something incorrect. which I think you are trying to allude to. We have done everything correctly.and we followed, you are.when you are saying that they applied for average density which they never applied, you are implying that we can change zoning. You are implying that in my mind, and I agree with them that they guy has a hardship with knocking down the house and moving it, I don't believe the Planning Board has done anything wrong, and I resent that you keep bringing that up that we did something that the rest of the Town has to live by, we did not make an error in my mind. Mr. Versace stated, a clarification on average density. Average density is an application made to the Town Board for a.Law X6281 in the Town of Wappinger which would then allow the Planning Board to an average density to a site plan. We do have one existing development in the Town of Wappinger that falls into that catagory and that is Cranberry.of DWS, whatever you want to call it, and it is the only one that we have as an average density, 281 in the Town of Wappinger in the 10 years that have been on the Board. But the procedure is a request can be made to the Town Board, there is no assumption on average density. It has to be approved by the Town Board and then the Planning Board has the ability to average density that specific site. Just for a clarification. Mr. Landolfi asked if there were any further questions from the Board. Mr. Hirkala asked Mr. Luckel, how much money do you have in this particular development, not the development in the lot that is in question, Lot X610. Mr. Luckel answered, probably $120,000.00. Mr. Hirkala asked, and howmuch money does the applicant have. Mr.Luckel asked, probably nothing at this point. Mr. Hirkala stated, I mean the potential owner. Mr. Luckel answered, he has got $30,000.00 involved. Mr. Caballero asked, you have other lots there that you have the same problem. Mr. Luckel stated, yes, we have a few other lots in there we might have the same problem, except this one has a home on it, the other ones do not at this time. Mr. Caballero asked, the other ones are under contract already. Mr. Luckel answered, oh sure. Page -15- June 27th, 1985 Mr. Caballero asked, will you be coming back to the Zoning Board of Appeals to look for the same thing on those other homes. Mr. Lu.ckel answered, there are two lots specifically, and I was bringing it up earlier, specifically which I will probably have to come back in on the other ones I can probably re -design and make them work. The only reason we came with the 7 or 8, because somebody used the word threaten, Jim, you said that you did not want to see us come back again. So, therefore we wanted to protect ourselves, and we went in with every lot that we thought we may need a sideyard variance on. The only reason we went with 7 instead of 5. Now, since, we have been going over this over the weeks. I went back myself and looked, with the exception of 2 lots, I can make the other ones work. If I re -design the houses. What I am really looking for, I have got to have 10, these people are out in the street. Lots 2 &17 I will possibly be looking for a variance on those two lots and then we should be home free. Mrs. Waddle asked, can't you build smaller houses on them, then they wouldn't need a variance. Mr. Luckel answered, when you are in contract, how do you do that. Mrs. Waddle answered, well, that is your problem. Mr. Landolfi asked if there are any further questions. There were none. Mr. Landolfi stated that we will now close this appeal. Mr. Landolfi asked what the wishes of the Board were. There was a discussion among the Board. Mr. Hirkala stated, I would like to make the motion to grant the variance on Lot #10 and in addition, as a part of the motion, I would like also to say that in my view it is unique. I am moving the motion because it is a unique situation, there is alot of money involved, and it in no way reflects on any other requests for variances on any other part of that particular development or any other lot in the Town. I don't want this particular resoltution to be a precedent. My gut feeling is to not grant, but because of the money involved in it, and becuase of the hardship that the people who are potentially buying it are in, I would move the motion. Mr.Cortellino seconded the motion. Vote: Mr. Landolfi - aye Mr. Caballero - nay Mrs. Waddle - aye Mr. Cortellino - aye Mr. Hirkala - aye Mrs. Waddle stated, I think the vote is under duress because the house is up and I will vote aye, but I am not happy about it at all. And, I don't want to see this kind of thing come before this Board again where we considered this. This is the last time that this Board is going to look kindly on such things. Mr. Hirkala stated. as the person who moved the motion, I would like to agree with what Mrs. Waddle says, that this has happened to often in the past in the gown of Wappinger and the Town has been under duress and I think it is time to stop. Page -16- June 27th, 1985 Mr. Cortellino made a motion to adjourn the meeting. Mr. Hirkala seconded the motion. Vote: Mr. Landolf i - aye Mr. Caballero - aye Mr. Hirkala - aye The motion was carried. Mr. Cortellino - aye Mrs. Waddle - aye The meeting was adjourned at 9:35 P.M.. Respectfully submitted, Linda Berberich, Secretary Zoning Board of Appeals lb