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1985-09-06n ZONING BOARD OF APPEALS TOWN HALL SEPTEMBER 6TH, 1985 - 7:00 P.M. MILL STREET AGENDA - SPECIAL MEETING WAPP. FALLS, NY PUBLIC HEARING: 1. Appeal #843, on the matter of application of Moccasin Hill Estates Homeowners Association to determine whether Mac George Automotive has complied with site plan approval, and if not, to revoke the Special Use Permit. jZONING BOARD OF APPEALS SEPTEMBER 6TH, 1985 - 7:00 P.M. AGENDA TOWN HALL MILL STREET WAPP. FALLS, NY The Special meeting of the Zoning Board of Appeals was held on Friday, September 6th, 1985, at the Town Hall, Mill Street, Wappinger Falls, New York, beginning at 7:00 P.M.. Members Present: Mr. Landolfi, Chairman Mr. Hirkala Mr. Caballero Others Present: Ms. Linda Berberich, Secretary Ms. Anna Angell Young, Zoning Administrator Mr. Bernard Kessler, Attorney to the Town The meeting was called to order at 7:08 P.M.. Mr. Landolfi asked if all the abutting property owners had been notified. Ms. Berberich replied, according to the records available in the Assessor's office. Mr. Landolfi stated, ladies and gentlemen, we will give everyone an opportunity to be heard this evening, either for or against the appeal, all that I ask is that you, when you do come up to speak please give your name and address for our records. The first order of business this evening, I have a letter here that was delivered to our office yesterday, and I will read it and it will become part of the record, it is addressed to me. Mr. Landolfi then read the letter, which is part of the record, from Jennifer L. Van Tuyl, to Mr. Landolfi, RE: MacGeorge Automotive, dated September 5th, 1985. Mr. Landolfi asked Ms. Berberich to see that this letter is entered into the records. Mr. Landolfi stated, we would like to call on our Attorney, Mr. Kessler, may I ask what you might suggest under the circumstances. Mr. Kessler stated, I received a copy of the letter the same as you did, Mr. Chairman, I see no reason to delay this meeting. I think you should proceed. I think those persons that are here to be heard, I think that you should make a record and have the people that are here have the opportunity to state their concerns on record and in all fairness, as they said forth in this letter, if this Board sees fit, your Board sees fit to set another date, I see no legal impetiment on that. I don't think that this Board should make a decision just based upon what they hear tonight in all fairness they should hear both sides, it is unfortunate that even though the other party has been notified, they write that they can't be here with counsel, it is unfortunate that we did not know that sooner, so that everyone could have been advised, however, under these circumstances, I would advise that you proceed accordingly. Mr. Landolfi stated, let me just read the legal notice. Appeal #843, on the matter of application of Moccasin Hill Estates Homeowners Assoc. to determine whether MacGeorge Automotive has complied with site plan approval, and if not, to revoke the Special Use Permit. Said hearing will be held on the sixth day of September, 1985, at the Town Hall, Mill Street, Wappinger Falls, New York, beginning at 7:00 P.M., at which time all interested persons will have the opportunity to be heard. Mr. Landolfi stated, might I ask if there is any speakers would they please come forward and provide us with your name and address. Mary Kurtz, 12 Park Hill Drive. Page -2- September 6th, 1985 MS. Kurtz stated, I hac quite alot to say tonight but under the circumstances, I think I would rather not. I don't think that Mac George should be given the extra time. We spent alot of time and energy working on what we were going to present to you tonight and I believe that by presenting what we have would only hurt ourselves -in giving them all the extra weeks and time to work on it. We think that they have had an ample time she had ample notice, Mac George was fully aware of when this meeting was going to be scheduled, and we feel that if she is not here tonight I am not going to read what I have and if you want to reschedule the date we will find that it is not going to be based on Minutes of this meeting. I am not going to read everything that we have prepared so that she has ample time to read the minutes and then prepare. This is everything that we have up to.date, and if you are not going to make a decision tonight, or if you are not, it is unfair to me as to whether you are in a position to make a decision to night, evidentally you are not because be is not represented? I don't think you answered Miss Van Tuyl's question. Mr. Landolfi stated, as I understand our Town Attorney, I believe that you are correct. I feel, if I understood Mr. Kessler.... Mr. Kessler stated, there is no problem with what Mrs. Kurtz says, I just thought that it might be advisable while the people are here that they might want to be heard, if they don't want to be heard, I have no legal problem with that either. Ms. Kurtz stated, I have a question as to why you couldn't have called us yesterday and saved us alot of time and trouble when you received the letter. Mr. Landolf i stated, excuse me, as you see we also gave up our evening, I would have loved to have tonight off. It was posted in the papers and we are here, okay, in good faith. We did not feel that we had adequate time to legally cancel the meeting so.that everyone would be notified. Unfortunately someone had to make a decision, I guess and I made this decision along with the advice of our legal counsel, now, if you have an issue with that also, I would like to take that off line. I would like to really zero in on what the problems are so that we can help come to a decision on this case. Ms. Kurtz stated, I would like to come to a decision tonight based on the testimony we have because Miss Van Tuyl and MacGeorge had ample time to appear here tonight, cancel other committments. I feel that a decision should be made. Mr. Hirkala stated, I think that her request is primarily, what she is asking is that this Board actually make a firm decision tonight as to whether MacGeorge can remain in business or not and I do believe that the counsel would have something to say about that whether that is legally possible. Mr. Kessler stated, you are here as a Zoning Board of Appeals as a fact finder, you are supposed to find facts. You can only find facts if everyone, in all fairness, is heard. I have no objection, and I advise this Board that Ms. Kurtz and her colleagues do not wish to be heard tonight if they are making an application of adjournment I think you should seriously consider that application to another date so which they could be heard simultaneously with the Mac George people, I see no problem with that if that is what they desire. Mr. Hirkala stated, but it has to be firmly understood that under no way will this Board commit itself, at least with the 3 of us, at least I will not commit myself to act at the same time these people the same day that these people present their evidence. There is no way that somebody can tell me that I have to act.......... Ms. Kurtz stated, I would like to say that you seem to seem to-_haue nada-s=_raal7concession MacGeorge and Van Tuyl the lawyers in that case you are not making a concession for us. Page -3- September 6th, 1985 Mr. Hirkala stated, she made a comment to me that time. Mr. Caballero asked, Mrs. Kurtz are you aware that this Zoning Board of Appeals originally turned down the Special Use Permit. Ms. Kurtz answered, absolutely. Mr. Caballero went on, and it was upturned by a higher court. Ms. Kurtz answered, yes, we have that petition and we have the decision by the judge. Mr. Caballero stated, and this Zoning Board of Appeals is not closed minded to hearing what you have to say. If we make a decision, if you don't give us evidence, we make a decision without evidence or if you do:give us, and make a decision now, it could be overturned by a court. Ms. Kurtz stated, my question is, will you make a decision based on what we say tonight. Mr. Caballero stated, I don't think with only 3 of us here and without hearing the other side, if we.make a decision unfavorable to MacGeorge, in court they might overturn our decision. Mr. Kessler stated, I was just going to say the same thing. What Mr. Caballero said is in fact legal. Mr. Hirkala asked, Mr. Kessler, didn't you come up with a section of the law, state law, that stated that we can't legally act unless the session that we are in presently was scheduled by a full vote of the Board and not just called by the Chairman. Mr. Landolfi stated, 267, 1f6 I believe. Mr. Kessler stated, subdivision 3, and subdivision 6. Mr. Hirkala stated, so under state law we can't even act tonight anyway. Mr. Kessler stated, that is not the problem I think. Ms. Kurtz stated, no, it is not the problem. Mr. Kessler stated, although your position is okay, lets say you have several alternatives. If the people here wish to be heard, you are not going to be able to make a decision anyway. If they don't wish to be heard, then entertain their application for an extension and set another date for the meeting. Ms. Kurtz stated, like you would do for Van Tuyl. Mr. Landolf i stated, I think what perhaps I should point out, we are really under no obligation, for instance, Tuesday night is our regular scheduled Zoning Board Meeting. I believe that we have roughly 10 or 12 cases. We are under no obligation on Tuesday night to render a decision on any one of those cases, for your information. The law even allows us adequate time to gather the information from the applicants and then it may require us getting with our legal counsel, our Zoning Administrator, our Building Inspector, whatever, so, I am sorry if someone had the understanding that we had to arrive at a decision this evening. I am sorry if someone misunderstood. Ms. Kurtz stated, okay, I still would like, we still would like to be heard when MacGeorge's lawyers are present. Page -4- September 6th, 1985 Mr. Landolfi stated, that is you perogative. Ms. Kurtz stated, right, and Mike was saying that it wasn't our perogative. Mr. Hirkala stated, no, I didn't say that. Ms. Kurtz stated, okay, I am sorry, I misunderstood you then. Mr. Landolfi stated, I want to leave you this evening with the way the law is set up as I say, we have a public hearing, the purpose is to gather all the facts, which we were hoping to do this evening. By the way, it is conceivable that we could've perhaps come to a decision if everyone, if all the principals were here. But, we were under no obligation to render a decision, as I say, tuesday night I bet out of 10 or 12 cases we may come to a decision on 6 of them. 6 of them may require followup meetings to get with legal counsel or whatever. Ms. Kurtz stated, okay, I would just like to say that as of this date Mac George Automotive has no Certificate of Occupancy and is open for business as usual and you are all aware of that fact as you all know, that is one of the major.complaints that we have. We have seen no action for enforcement upon that. Mr. Hirkala asked, what would you like us to do. Ms. Kurtz stated, I would like you to do your job. Mr. Hirkala asked, what job is that. Ms. Kurtz answered, nullify the Special Use Permit based on the fact that he is in violation of the ordinance, he is operating without a Certificate of Occupancy. Mr. Hirkala stated, the only way to shut him down, and legal counsel would bare me out, the only way to shut him down is to go to court and have the court issue an order that he cannot operate his business. That is the only way to do it and if you are willing to wait a couple of years to go through that, and he is operating his business all the time. Ms. Kurtz stated, then every resident in this Town can move into their homes without a CO. Mr. Hirkala answered, exactly. Ms. Kurtz stated, okay, I am glad you said that. Mr. Incoronato stated, haven't we placed Mac George on the docet of the JP court. Mr. Landolfi stated, I was going to ask our Building Inspector to give us an update. Could you please Dan give these people an update to where we stand relative to that CO. Mr. Kriegsman stated, I am in a postion where I have to issue a CO. I have tried to explain something. Legally, I have to give him Certificate of Occupancy. He has not done anything on that building that the code says he is in violation other than make the application on time. Now, the way it stands right now, the hearing is here for tonight. We have held this back, we have held this back. I have letters here where they are demanding legal rights to have that CO issued. There is no reason any longer that I can hold the CO back. When I saw you a week ago (Ms. Kurtz) I told you that I could have given him a temporary Certificate to occupy. It is the Town's policy not to issue temporary, therefore, we did not issue. The only thing that this man was doing Page -5- September 6th, 1985 was moving in his equipment. His compressor, his storage racks, things like that relative to his ...... He was not told he can go ahead and use the place, so he is in violation and we issued an order he should stop working there, physically working. Now if he wants to continue, yes, we can take him into court, and the judge is going to do what, what did he do wrong, that he hasn't got a piece of paper, what did he do physically wrong is what I am getting at. It is like somebody driving down the street. he goes through a red light, but then you haven't got the to defend yourself, maybe she was having a baby in the car and they had the right to go, I don't know, in this case there is nothing wrong with the building. Ms. Kurtz stated, I received a letter from Frank Versace. Enclosed with that letter is a list of everything that MacGeorge, this is as of August 21st, he has been opened since at least July 20th. As of August 21st, I don't have an updated list, this is only as of 9 or 10 days ago. Of all the things that he needed for a Certificate of Occupancy, you say he can have one. The following items of work are still required for completion before a CO can be issued. Application for Co must be submitted. Approvals must be obtained from the following agencies and/or departments. The DEC has not of yet inspected their oil and water seperator, Fire Inspector, Zoning Administrator, County Highway Department for curb cut. Fees to be paid: oil tank, water. Heating system required to be approved, installed and tested. Final electrical certificate and inspection, construction work still to be completed, fan exaust for the wash room, door to be installed at refuse container, site work, sign painting, paper work still required. He needs a copy of the energy code. A copy of the ventelation system drawing, a copy of the oil and water seperator system, a copy of the heating system installation. I found out when I visited your office that he is storing the oil on the property instead of having it taken away in 50 gallon tanks that he was going to store the oil in now he wants to burn it on the property. We don't even know if he is going to store the oil or burn it yet. The DEC reports finally processing make it 60 to 90 days depending on work required, time determination cannot be determined until heating system is designed. If we claim oils to be used, DEC must determine if this is a hazardous material stored in 50 gallon tank. If stored in a 50 gallon tank will be removed .....in addition smoke emmissions must be checked and approved. He need a speedes permit, oil and water seperator, air pollution and solid waste permit. And you are telling me that he can get a CO now, and he doesn't have any of these things. Mr. Kriegsman stated, wait, you didn't ask me that. He has complied with everything except the heating situation. As long as he doesn't use his oil and water seperator the DEC doesn't care. It is only if he intends to use it, he put it in, but if he doesn't use it, and he hasn't asked me, he has asked for an application but as long as he doesn't use it he is not going to be in violation. So lets forget that item right now. Now, because he said to me that he thought of using that system I included it so that I know what I have to do incase he does use it, but suppose he goes through ordinary oil suppose he goes to propane for heating so all of that is thrown away. Until he makes a decision of what kind of heat he puts in there, or if he intends to heat the building, there is nothing they can do, so he has complied with all the plumbing, all the structure, everything is done. Electrical, the highway dept. is holding a bond for one year to make sure that the concrete curbs are good. The fire inspector. Ms. Kurtz asked, may I ask you why when in the first place thinking or using the oil and water seperator. Mr. Kriegsman answered no. Ms..Kurtz stated, that was a condition that was set down by the Zoning Board of Appeals last year in order to issue a Special Use Permit. Mr. Kriegsman stated, if he decides to take and use that oil. Page -6- September 6th, 1985 Ms. Kurtz stated, that is not what it reads. I don't think you have read it. Mr. Kriegsman stated, his engineer shows it on the plot plan and it has not been approved by the DEC but he is not using it. If he uses it he is in violation. Karen Porache, Boxwood Close. The fact still remains that this letter dated August 21st, he was in operation as.of July 20th, so he was in violation and your office was notified of the fact that he was operating his business and he did not have a CO, therefore, at that time he was in violation. He might comply with all of this now, but at the time that we first notified you people he was not complying. Mr. Landolfi asked if anyone else wanted to speak or ask any questions relative to this case. Mr. Incoronato stated, I still don't think I have an answer to my inquiry about his having violated a cease and desist order at least and he was operating the following day as I was able to testify myself because I went there the following day, 16 or 19th, and I had anticipated that this would have been on the JP docut to enforce that part of the law which apparently he violated and I would like to ask Anna if that has.been done. Ms. Young answered, no, that has not been done. Mr. Incoronato asked, why aren't we doing it. What does..a cease and desist order mean if we are not going to enforce it. Ms. Young stated, I haven't issued a cease and desist order myself. Ms. Kurtz stated, so we brought it to your attention many times and something should have been done. Ms. Young answered, yes, I realize that. Ms. Kurtz stated, and this I don't know and I am new and all of that, that doesn't hold water in this Town. We pay our taxes, we pay your salaries. Mr. Hirkala stated, I have a question of the Attorney. What is the normal procedure when a cease and desist order is issued. According to my note here it was issued by the Building Inspector, is that right. Mr. Kriegsman answered, yes. Mr. Hirkala asked, on August 16th right. Mr. Kriegsman answered, right. Mr. Hirkala asked, what is the normal procedure to follow. Mr. Kessler answered, usually the cease and desist order has a time limit saying that you should cease and desist by a certain date. I don't know if that was put in it. Mr. Kriegsman stated, yes, ten days. Mr. Kessler asked, when was it issued. Ms. Kurtz answered, August 16th. Page -7- September 6th, 1985 Mr. Kessler stated, so sometime between then and now there was a special meeting on that being held when we decided that the ZBA was to hold a Special meeting. Mr. Hirkala stated, that is not what I am talking about. I am not talking about what actually happened but suppose this violation...... Mr. Kessler stated, what actually happened after a cease and desist order is issued and if there is still a violation still in existence at the end of that period of time then at that time the Administrator in drawing information and after input from me as to the facts to be placed in the information, the information is to be then filed with the court. If the court accepts the information it will have a summons issued. If the court does not accept the information and wants to make modifications that is up to the administrator and counsel, myself, to provide that which the court desires before it takes jurisdiction to issue a summons. Mr. Hirkala asked, so what you are saying is that once the cease and desist order is issued the time limit gone by, the next step is to go to court. Mr. Kessler stated, the next step is to prepare information to lay before the judge. Then if the judge accepts it then he issues a summons. Mr. Hirkala stated, I guess the point that I am saying is why are we sitting here tonight. Mr. Kessler stated, the reason we are sitting here tonight is because we talked about this at a special executive meeting and we felt that it would be quicker to do it -t this way with the ZBA meeting to obtain all the facts. Mr. Hirkala asked, and what would be the normal time roughly for, if we go through court. Mr. Kessler answered, well if you remember sometime last spring of 1984 we started the Gallagher case, just entered the judgement just a couple weeks ago. Mr. Hirkala stated, so you are talking a year if we go through court. You go the route of the Zoning Board of Appeals or the best that we.could do is pull the permit if we can prove violation. Mr. Kessler stated, to prove violation, you set up a special meeting as you started to mention before, pursuant to Town Law, give notice to everybody, and call that special meeting and now that you are here at this meeting and to set a meeting for that particular purpose. Mr. Hirkala stated, what I am trying to bring out is the normal procedure so that these people, it is my view that these people expect from us what we cannot do. What I am trying to bring out is that legally what we can do -and are we doing it. Mr. Kessler stated, there is things that can be done and things that you have to consider though is what is practical. It is not a question of legalistics it is a question of what is practical. Mr. Versace stated, I think we. have two issues here that we are discussing at this point in time. This wetting is specifically for, as I understand, is related to the issuance IV of a Special Use Permit, am I correct in stating that, the Zoning Board of Appeals did give MacGeorge a Special Use permit. Mr. Landolfi stated, that is correct. Page -8- September 6th, 1985 Mr. Versace stated, I know it was denied, I now the history of it, it was overturned in the court and there were certain restrictions that Mr. Mac George agreed to and he put on there that is what I am talking about and I believe that is what this meeting is about this evening, the Special Use Permit related to the agreement made by.. the Zoning Board of Appeals and Mr. Mac George at that time because it was one issue even after it was all determined as far as you are concerned. What you people were just discussing is another process which is a CO which has nothing to do with the Special Use Permit because it is related to the construction of the building and what the cease and desist was related to the fact that they occupied the building even before he got approval to enter it. The procedures that they would be using would be inviolation of not having the CO and was operating, just to clarify the discussion that I have heard going back and forth and why the Zoning Board of Appeals is here this evening, its here really to related to some complaints that violation that both parties agreed upon related to the Special Use Permit, and not the CO, becuase the CO is a different entity that comes out of the building and zoning requirement, just for clarificaiton purposes because this conversation is going in a different direction and that is why I'm understand why you people are here right now, not the CO but the Special Use Permit. Ms. Kurtz stated, excuse me but I think the two tie into each other and if a violation of this zoning ordinance of this Town, if there is a violation of this zoning ordinance then the Special Use Permit can be made null and void or revoked and that is what we. claim. But what I am saying is that he has no Certificate of Occupancy and that is what and they said ......... Mr. Incoronato stated, I think it is very important what is being brought up here tonight is ......As Mr. Versace said there is two seperate issues. The one underlines the other and the enforcement is the key. Now, yes, there is a question of whether to retract the Special Use Permit consider that issue, but even more fundamental is the enforcement. If we don't start making cases of some of these people, I think we have violations of the whole entire landscaping of theTown. We have already put aside 50 this past month but we still have 40 that are active on the books especially, when we had that executive session there were supposed to be two avenues pursued. One was by the ZBA to consider the revokation possibly of the Special Use Permit and the other one was the enforcement of the violation stemming from the fact that the man violated a cease and desist order, which you have plenty of witnesses to including myself and councilman McCluskey attested to the same situation. Now, if it is a day, a week, or a month, the point is that there was a violation and we should proceeed upon that. The minimum fine for that would be at least $250.00 as I understand assuming our courts. So I would like to see that of course pursued and this was what I would do is work in parrallel with the ZBA looking at the question of the Special Use Permit and its validity and the JP court and the Town Attorney, the Zoning Administrator working to prosecute and punish if you will a wrong doer if that be the finding of the court. Mr. Kessler stated, with all do respect, what is the Zoning Administrator going to report about to the Town Justic Court that will sustain a ....against the defendant MacGeorge. Mr. Incoronato stated, the firm was issued a cease and desist order and several days afterwards on certain seperate episodes that theman was actively working. Ms. Kurtz added, and that he was not in compliance with the site plan. Mr. Incoronato stated, and there are witnesses willing to attest to that including yours truly, including the residents. There wre 10 cars there the day I stopped there and checked. it out. 10 cars, a boat and a trailer, 2 bay doors open, a person standing over a hydrolic lift with a car over it, I mean if you look like a duck and you swim like a duck and you have feathers like a duck and you eat with a duck and you make noises you are a duck. That was a garage that was operating. Page -9- September 6th, 1985 Ms. Kurtz stated, we also have pictures we do have some evidence which we are not going to present tonight. Mr. Landolfi stated, that is your perogative. Ms. Kurtz stated, I know that. I have one question. Who, Mac George is a kid, he is not running his business without the advice of someone who said don't worry about it, stay open. I heard today that he was going around saying that you said (Mr. Kriegsman) he could stay open for business. Mr. Kriegsman stated, he could say it. Ms. Kurtz stated, I would like to know who told Mac George he could open and not worry about a thing because somebody told him it is okay to stay open, they can't do anything about it. Mr. Kessler stated, it may appear that MacGeorge is claiming that Mr. Kriegsman told him. I checked it out with Mr. Kriegsman and he said he never told him that he could. Mr. Kriegsman reported to me that when requested he was told that he could bring in some shelving, some equipment, and some tools. Mr. Kriegsman stated, that is a garage. Putting some lifts in there and putting his air compressors which have to be attached to the building that is still a component part of the building. I can't say no to him. But that doesn't mean he can go ahead and start the cash register. Ms. Kurtz stated, he was claiming that you told him it was okay for him to open up for business. Mr. Kriegsman stated, that is not what he asked me. He asked me can I move my equipment in, that is what he asked me. I have no objection to that because it is a component part. Ms. Kurtz stated, he is under the impression that he is not doing anything wrong and we told him that he is doing something wrong, you issued a cease and desist order, Jean Joyce went over there and told him to stop road testing the cars on our street, Anna Young went over to check out the site plan and unfortunatley she miscounted the number of trees there, he is a certain amount short, not 10, a whole lot, there is no screening there. He knows he is violation. The Town knows he is in violation the Zoning Board of Appeals knows he is in violation. He is open without a Certificate of Occupancy no matter what he needs, no matter how close he is to getting it, he doesn't have one. No matter if he whether he deserves one or not, he doesn't have one and he is open and you all know it. Mr. Hirkala stated, I am going to say it again and I can't let this go by, this lady, and I want to do this without prejudice, because I am tired of being accused, darn it, I am not culpable in any way, shape of form, in any matter before this Board at this time. I am here with an open mind and I resent firmly anybody telling me that I am here with a closed mind and I don't like your attitude in that sense. Now if you come before this Board and request of us to present proof that somebody is in violation I have no choice to say to that other person who you are blaming for something that that person has the right to come here and say that he is not in violation and prove it. Ms. Kurtz stated, he certainly does and I would like to do it when he is here. Mr. Hirkala stated, that is fine, I am not saying you can't but I resent the attitude that you are presenting that I am already have made a decision because I have a letter here from his attorney that says the same thing only that I have already made the decision in favor of you and I have had that, and I want to hear somebody come before this Page -10- September 6th, 1985 Board, I wanted her here tonight for that very same reason. Mr. Caballero stated, I have no problem in listening to this case and making a decision this evening what so ever. If you care to present your evidence as far as I am concerned I will listen to it and make a decision for or against you depending on what I hear. I suggest though that we set up a meeting where both parties are present here and I make a motion that we set up a date to have this re -scheduled. Mr. Hirkala stated, I second that motion. Ms. Kurtz asked, don't you just need a quorum, don't you just need the three of you why do you need all the members present. You talk about all the members. mr. Landolfi stated, I am going to make a decision here tonight. I would prefer 5 members of my Board who are all active members, I want to give them the opportunity to particpate becuase, let me tell you why, I am thinking ahead of you just a little bit. Just in case the decision may not come out favorable, I don't want to be accused of not having a full Board. It comes from hard knocks, my decision. Again, I am making a decision. I want the full Board and that is the reason we have 5 members on the Board, and I would like to give them that opportunity, so if you would allow me to exercise just a few rights I have as a Chairman, I would appreciate it, thank you. Leo Porache - Boxwood close. You were all ready to sit here tonight and listen to everything that we had to say to you. Mr. Landolfi answered, we are. She didn't want to talk. Mr. Porache stated, the point that I am trying to make is that you were very satisfied to sit there with 3 people and liten to everything we had. Mr. Landolfi stated, she is the young lady who preferred to site down. I didn't ask her to sit down, it was her perogative, she said I would rather not repeat, whatever the words are. There is a motion on the floor and it has been seconded to schedule a meeting. Mr. Hirkala stated, and I will comment on that. The fact is that an effort was made to get a full Board here tonight. Okay, two could not make it, three did. He is making the same effort for another meeting that may possibly be scheduled, there is nothing wrong with that, and I also resent the fact that the procdures of this Board now are in question. Can we do anything right as far as you people are concerned. Mr. Porache stated, I resent that mark that you just made. Mr. Hirkala asked, in what way. Mr. Porache answered, because you are implying with everything that you do. All you have to basically do is set forth certain conditions that he had to abide by to get the Special Use Permit that you issued to him. We informed you that he did not abide by those conditions. According to you by law, zoning ordinance you have the right to pull the Special Use Permit without even a meeting like this. Mr. Hirkala stated, only after you prove that he is in violation. Mr. Porache stated, no, you are the Town, your suppose to prove. We point the violation out to you. Mr. Hirkala stated, the man says that he is not in violation. Page -11- September 6th, 1985 Mr. Porache stated, time out. I gave you a chance to talk now you give me a chance to talk. You have a witness that says he is in violation. Are you saying that he is not a credible witness.. Mr. Hirkala stated, he might have been in violation one day and the next day he wasn't. Mr. Porache asked, was he issued a cease and desist order. Mr. Hirkala stated, this man right here said that he is not in violation at this time. Ms. Porache asked, why did he walk the cease and desist order himself over there. Mr. Hirkala stated, don't ask me, this is the Zoning Board of Appeals. Mr. Incoronato stated, there are two seperate issues. The first one, the authority and the jurisdiction of this panel tonight is for the possible revokation of the Special Use Permit, the other issue is really a divorced issue from their jurisdiction tonight. That is really in the hands of the attorney and the zoning enforcement officer so the legal meeting here, really talking about the Special Use permit and whether the terms of that Special Use Permit had been violated. It has nothing to do with the cease and desist violation, that is a seperate entity that has to be entertained by the JP court and our Attorney. NOw, why there is only 3 here, becuase in our haste to expidite this case come to an understanding of the facts, they scheduled it, they went to the legal notice the following day. They were bound by law to be present, to attend this meeting that they has scheduled. As it turned out there were 2 people on the Board that could not attend so they are going through their paces and their obligations to listen to you so that is why there is only 3 of them so I can appreciate Mr. Landolfi wanting a full Board to make a very difficult, complex decision, Mr. Caballero stated, I am ready to listen to you and make a decision for you or against you on the basis of your evidence, if that is what you want to do. If you want to present your evidence now, I would make a motion to make a decision. If you want to hold this hearing back until the other party is here we will make a motion to hold that hearing over. Ms. Kurtz stated, the only time that I feel I have to become defensive is because when I said I wanted to be here when Mac George and his lawyers or representative of Mac George also I got shot down for that. Mr. Hirkala stated, you did not. Ms. Kurtz stated, I would just like to say thank you very much but no, we will pass tonight, why don't you set a date and when Mac George's lawyer can be present, hopefully it won't be to far down the road, hopefully it won't take too much time to get your Board together, this is my opinion and.we will present all our evidence then. Mr. Landolfi stated we do have a motion on the floor. The motion has been made a seconded to re -schedule. September 24th, 1985. Mr. Caballero asked if they would have to post another public notice. Mr. Kessler stated, I would suggest it would be better, legally speaking, to post another one. Mr. Landolfi asked Ms. Berberich to make sure there is no conflict. Page -12- September 6th, 1985 Mr. Caballero made a motion to set up the public hearing for September 24th, 1985. Mr. Hirkala seconded the motion. Vote: Mr. Landolfi - aye Mr. Hirkala - aye Mr. Caballero - aye The motion was carried. Mr. Porache stated, my question is directed to you (Mr. Caballero). If you said you were willing to listen to everything tonight and render a decision for or against. Would you have the authority for the Board to make that decision. Mr. Caballero answered, no. I can make the motion the rest of the members may not second it. Mr. Porache went on, okay, I just wanted to know that. Mr. Landolfi, at our executive session you mentioned the fact that you would go out there personally and count the trees. Mr. Landolfi stated, I was out there three different times as a matter of fact. Mr. Porache asked, what did you come up with. Now you investigated some of the violations what did you come up with. Mr. Landolfi answered, I believe I substantiated some of the claims that the number of t trees were not, did not meet the plan if you will. However, I believe, I don't know whether we have it in our possession, we may have, that his nursery suggested that he not put the rest of them in until a week or two weeks from now or whatever. I don't have a big hang up on that as much as I do some of the other allegations. Mr. Porache stated, I am just curious. What count did you come up with. Mr. Landolfi answered, 58 I believe. Mr. Porache stated, and he is supposed to have 75. Mr. Landolfi stated, there could be 100. You know something, you know what my main concern was, my main concern is what you filed, what we go by. I am going to go by the letter of the law just like you want us people to go by. You made allegations and that is what I am going by right here. That is the only thing that I am going to address. If you want to come forward with other information, come forward. Mr. Porache stated, you made a remark that I am going to go by the letter of the law like you want us to go by. Isn't that your job. Mr. Landolfi stated, that is our job. Mr. Porache asked, why do you make a comment like that. You are making it sound like, hey, we are pushing you into doing this. You are the Town, you are supposed to be doing it. Mr. Landolfi stated, I checked with our Attorney on the legality of those trees whether the number of trees whether it was 70, 80, 90 or 100 really if it made that much of a difference relative to a decision on pulling this Special Use Permit. I don't believe that that would substantiate legally pulling the Special Use Permit. Page -13- September 6th, 1985 Mr. Poraches stated, that is not my point. My point is, you tried to make it sound like we are forcing you to do this, you are supposed to be doing this, that is your job as the ZBA. Mr. Landolfi answered, excuse me, that is why we are here. Ms. Kurtz stated, excuse me Joe, let me also point out,you don't live on our street and they promised -a heavy screening of planting to be placed there and you see they are not there then that is a violation and I do believe that were enough. Mr. Porache stated, i specifically asked about, or for a recount of the trees. Anna counted approximately 10 to 12 missing. Ms. Kurtz stated, she counted 7. Mr. Porache stated, oh 7 to 10. We make up with approximately 25, I just wanted to show that there might be a difference of interpretation there. If, for any reason MacGeorge or his authorized representatives don not show up next time is there anything as far as default that comes into play there. Mr. Kessler stated, if you want to present your evidence, the Board would be willing to hear it. Mr. Caballero stated, we were willing to hear it today. Mr. Kessler stated, just because they are not here that doesn't mean that that is a default. It is a question of due process of the law. One of the residents asked, I think that there are some people who live on the street that are unaware of some of the requirements of that Special Use Permit, I know I am, I don't know what the requirements were and where the violations are, I would like to know. Ms. Kurtz stated, we would like to except that anything that we write down, all of this is being taken down tonight. MacGeorge's lawyers are going to have a couple of weeks to go over that. We think it is only fair, we wanted to come here tonight and we have, we have gone through the zoning ordinance and what not, we wanted to get that done tonight. The resident stated, I came here tonight to learn where the problems are. Ms. Kurtz stated, we have been working on this, today, for five hours we have spent on this. Gale DiPullio - 41 Park Hill Drive. I just want to serve something in case I don't understand this right. Now, we have just rescheduled this meeting tonight so that MacGeorge's or himself, whichever, can come here and represent themselves. Mr. Caballero answered, no. We rescheduled because you were not willing to give evidence because they were not here. Ms. DiPullio stated, now, we would like them to be here and have equal time. Now, if they decide to do what they did tonight and not show up, do we go through this all over again. Mr. Caballero answered, you can present your evidence and we will make a decision on that basis. Page -14- September 6th, 1985 Ms. DiPullio asked, and that would be it. We would just present our evidence and that is it or they can come back and say well we didn't get equal time and we want another meeting. Mr. Caballero stated, I am sure that if we make a decision, and we are given them fair opportunity to represent their case in front of us, that the court that will try that decision will take that into consideration, that they were given opportunity to come before us and present their story. Mr. Porache stated, I am going to have to ask you maybe, this gentlemen here, so it is not a total loss of everybody coming down here, can we turn this into an informational type meeting. Mr. Landolfi stated, we will close first if you don't mind and then we will open it up for....... Mr. Caballero made a motion that this hearing be closed. Mr. Hirkala seconded the motion. Vote: Mr. Landolfi - aye Mr. Caballero - aye Mr. Hirkala - aye The motion was carried. Mr. Incoronato stated to Mr. Kessler, -before you leave may we have some insurance that this is going to be pursued to JP court. Mr. Kessler answered, no, you do not have such assurance from me. I have heard testimony here that is only one or two items with respect to the CO, that there is a bond posted, it seems to me that Mr. Kriegsman would have no alternative. Mr. Incoronato stated, I am talking about the cease and desist violation. Mr. Kessler answered, that is what I am talking about, because if he issues a\CO what is the difference. If they are going to post the bond, what is the difference. Mr. Incoronato stated, the point is that a -day or two, a week later after the cease and desist they were functioning in violation. Mr. Kessler stated, that is a unfortunate circumstance. Mr. Caballero made a motion for a formal adjournment of this meeting. Mr. Hirkala seconded the motion. Vote: Mr. Landolfi - aye Mr. Caballero - aye Mrs. Waddle - aye The motion was carried. The meeting was adjourned at 7:55 P.M.. Page -15- lb September 6th, 1985 Reppectfully submitted, �A- L-"& �-Q' L", , '�� Linda Berberich Secretary Zoning Board of Appeals