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1985-09-24ZONING BOARD OF APPEALS SEPTEMBER 24TH, 1985 - 7:00 P.M. AGENDA ALL BOARD MEMBERS ARE URGED TO ATTEND. OFFICE AT 297-6257. THANK YOU. TOWN HALL MILL STREET WAPP. FALLS, NY IF YOU CANNOT ATTEND PLEASE CALL THE PUBLIC HEARING: 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. 0 ZONING BOARD OF APPEALS TOWN OF WAPPINGER TOWN HALL WAPPINGERS FALLS, NEW YORK 12590 TEL. 297.6257 Memo To: Zoning Board From: Linda Berberich, Secretary Date: August 22nd, 1985 Subject: Addition to the September Agenda Please add the following: Appeal 4845, at the request of the Zoning Administrator, seeking an interpretation of Article IV, §413.22 of the Town of Wappinger Zoning Ordinance. ZONING BOARD OF APPEALS TOWN HALL SEPTEMBER 24TH, 1985 - 7:00 P.M. MILL STREET MINUTES (SPECIAL MEETING) WAPP. FALLS, NY The Special meeting of the Zoning Board of Appeals was held on Tuesday, September 24th, 1985, at the Town Hall, Mill Street, Wappinger Falls, New York, beginning at 7:00 P.M.. Members Present: Mr. Landolfi Mr. Caballero Mr. Cortellino Mr. Hirkala 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 7:07 P.M.. Mr. Landolfi asked if the abutting property owners had been duly notified and all the posting has been made. Ms. Berberich replied, according to the records available in the Assessor's Office. Mr. Lanfolfi stated, this is Appeal #843, on the matter of application of Moccasin Hill Estates Homeowners Association to determine whether MacGeorge Automotive has complied with site plan approval, and if not, to revoke the Special Use Permit. Mr. Landolfi stated, what I would like to do, I would like�to have the Moccasin Hill residents please come forward and present their case first, please. Mr. Porache stated, I would just like to tell you that Mary will be here in about 10 minutes. Mr. Landolfi stated, let me tell you so you understand. Your organization has brought forward certain allegations, we would like you to bring them forward to us and then we will allow the MacGeorge people to go on. You think she will be about 5 minutes. Mr. Porache answered, yes, I spoke to Mary earlier and she was being delayed. So, she will be down with all our materials in about 5 minutes. Mr. Landolfi asked the members of the Board if they had any problem with waiting 5 minutes. They had no problem. Mr. Landolfi stated, we will take a 10 minute recess to allow Mary to get here. The break was called at 7:10 P.M.. The meeting was called back to order at 7:23 P.M.. Mr. Landolfi stated, I apologize for the delay. Again, what I would like to have done Mary, would you please come forward and present your case please. Mary Kurtz, Secretary of the Mocassin Hill Estates Homeowners Association. Mrs. Kurtz stated, I am representing the people in our association. What I am going to read now really pertains to the meeting that was two weeks ago and alot of our questions have been answered already. Some of the stuff that I am going to read, we already had alot of the questions answered. So, I am going to read it anyway. The following is a list of the violations that we were aware of for MacGeorge Automotive repair. They were Page -2- September 24th, 1985 in compliance with the site plan, the number of trees falls far below the number quoted in the site plan, also, the height of the trees falls far below that which was proposed. I am going to read now from a petition that was petitioned to the Supreme Court by MacGeorge's lawyer, Jennifer Van Tuyl. In that petition, §27 states, the view of those doors, the garage doors on either side of the garage, the view was to be screened by extensive plantings, here are pictures of how it is now. We understand that they are going to be planting some trees at the end of this month and all of the garage doors to be there were supposed to be heavily screened. §28 in the petition refers to extensive landscaping, screening, §29 states that all blacktopped areas were additional provided with heavy landscaped screening. The site plan calls for 75 trees and shrubs on the site with a total estimated landscaping of in access of $36,000. On Thursday, August 15th, a neighbor and I walked over to count the plantings and we only saw 50 in place and they weren't of the required height either. §39 states that Mr. MacGeorge emphasised that he was using an oil and water seperator that was ..oils to a holding tank in which was going to be transported off site for proper disposal. Dan Kreigsman informed me on August 20th when I had gone in to sign the original appeal for the first meeting on September 6th, that MacGeorge now wants to do away with that system and again he was going to take us up to date on that tonight if he was going to be here, and I don't see him here. §40 states that Mr. MacGeorge had agreed to a condition that there would be no test driving vehicles on Park Hill Drive and I listed the dates when did see some cars but we haven't seen them since we made an initial complaint and §44 states when the Zoning Board of Appeals expressed a concern about the hours of operation and petition specifically stated to the Board that they would agree to whatever was exceptable to me and the Board, whatever made sense, they would abide by that. I understand that they went back to the Supreme Court and their hours of operation changed. §45 states that MacGeorge continued to consent to every proposed condition made by either Board or ....Due to this consent it appeared that the Zoning Board would approve the project subject to those conditions, so initially when they laid out the petition to the Supreme Court the Judge made his decision based on what she petitioned to that of what MacGeorge would do. §51 states that there would be more landscaping and screening provided by petitioners use and presently exists, I don't know if any of you are aware of how it looked before, it was covered with trees and now really are relatively no trees on the site now except for the miniature ones that they planted. §58 states there would be a condition that no road testing would be conducted on Park Hill Drive and the hours of operation would be something Monday - Saturday the Board changed that to 8 to 1 on Saturday and then they went back to the Supreme Court and changed that. The following is a list of the conditions set forth by the Zoning Board of Appeals at its meeting on July 1st, 1984. Appeal #711. I will just read the conditions that apply to the hearing a couple of weeks ago. Condition #5 - any water/oil seperator will be used to assure that oil will be properly placed in a holding tank, disposed of off site in an appropriate manner. #7 - The building is extremely residential character, which it is, it would be constructed of residential character cedar siding, the overhead doors to be used in a small in size than usual in this type of useto be consistent with the residential scale. Those doors are to be facing towards 7-11 store to the east and the vacant property across Park Hill Drive. In addition, the view of those doors from wither view will be screended by extensive planting. The elevation of the building facing north towards All Angels Hill Road is of totally residential proportions and appearance. The elevations facing the residential lots to the south has no overhead doors and no ground level fenestration, providing a totally residential appearance, coupled with extensive landscape screening. #9 - The entire site plan design has been developed to assure good design and compatibility with surrounding uses. To minimize visual views of blacktop, the paved area has been kept to as small a portion of the site as possible providing lawned areas all around the site. Paved areas will also be placed close to the building on three sides, rather than in a single, larger configuration. All blacktopped areas were additionally provided with heavy landscaped screening. The site plan proposes more than 75 trees and schrubs on the site, with a total estimated landscaping cost in access of $36,000. Again, #12 stated that there would be no road testing on Park Hill Drive. Also, MacGeorge is in violation of §444.4 of the Zoning Ordinance it states in no case shall any vehicles Page -3- September 24th, 1985 requiring such work be stored outdoors for a period exceeding (5) days for gasoline filling stations or (14) days for repair garages. That is hard to prove and even if you took pictures of that the cars on the premises for more than 14 days it would be hard to state what days they were taken. And, at the last meeting, I just want to also state that MacGeorge was operating without a Certificate of Occupancy and we realize that he said he was told that it was okay that he could operate without one we just wanted to stress that we really want to be properly screened with the correct amount of plantings, with the correct type of trees and everything that they stated in the petition to the Supreme Court and that is what the judge had based his petition on when he handed it back to you so we wanted to make sure that those things were done, and that is it. Mr. Landolfi stated, I will now ask the MacGeorge delegation, may I ask for the speaker who will come forward and answer Mary's claims or allegations. Jennifer Van Tuyl - Attorney for MacGeorge Automotive Ms. Van Tyul stated, it was about 20 months ago that this Board held its first public hearing on the application of Mr. MacGeorge to open MacGeorge Automotive with a Special Permit. At that meeting many of the neighbors spoke out vehemently against Mr. MacGeorge and what he planned to do and this Board adopting the reasoning of these neighbors denied the Special Use Permit. Thereafter, Mr. MacGeorge brought that appeal to the Supreme Court and I think the Courts findings is particularily important to emphasise. Mr. Cortellino stated, excuse me, you made a statement that due this Board responded due to the neighbors. I think the Board responded after consideration. Ms. VanTuyl answered, of course. Mr. Cortellino stated, the way I , I may have been wrong, but I got an implication that we were responding to the residents, we were not. We were thinking, it is one of the duties of the Board to think of the community, safety, and various other aspects and it was with these considerations in mind that we came to our decision. We did not come to a decision and never come to a decision based on popularity vote. We do not run for office, we know that this is a dead end, you never make friends on the Zoning Board. If you give them what they want they say, why did I even have to go down there, if you don't give them what they want you are hated, so this is not a popularity pole. We do not respond to what the people want, we respond according to how we interpreted the law. Ms. Van Tuyl stated, well good, I am glad that you realize that, and I am glad that that has been confirmed in the record here. The courts decision of June 27th, 1984 stated, that it is apparent that the plantiffs application was denied as a result of the pressure applied by the local community and not for valid factual or legal reasons. Thereafter, on July 31st, 1984 all of us were in this room discussing the conditions that would be imposed on the Special Permit and there again I recall the neighbors strenuously urging very strict imposition of conditions on hours and indeed there were strict conditions on hours imposed by this Board, even over our protestations that it would be impossible for Mr. MacGeorge to make a living with those hours. And, thereafter, another appeal was brought to the Supreme Court and all of the conditions that had been imposed by this Board relating to hours were anulled, I just wanted to emphasize that to the Board because I think my point to you this evening is that over the 10 months that have passed since that court decision I think my client has shown extreme good faith in trying to comply with every condition this Board has imposed. We do not want to fight with our neighbors, we do not want there to be any problems, we are willing to go the extra mile. I think that the building we have built lives up to everything we said about it and something that the Town can be proud of. I will address the landscaping a little later on, we are having our problems to in dealing with our supplier and contractor, but I just wanted that to be clear that there are no valid conditions present now on Mr. MadGeorge's hours of operation. Now my client has asked me to answer each and every one of the Page -4- September 24th, 1985 objections of the residents and I am hopeful that we can come to terms. I would however like to, just for the record, to state our jurisdiction over procedural objections here tonight. First, is our postion that the Board lacks jurisdiction over this appeal because there is no underlying administrative decision of an adimistrative officer of the Town for which an appeal lies to this Board. Secondly, we submit that the Zoning Board lacks jurisdiction over the subject matter of this appeal because decisions concerning a Certificate of Occupancy and site plan of clients are specifically under the code granted to the Zoning Administrator and Builidng Inpsector of the Town. Finally, we urge that there is absolutely no jurisdiction of basis for revoking a special permit since Mr. MacGeorge has acquired vested rights by virtue of investment of building this building which exceeds the amount of $200,000. Now, by our presence here tonight we are not waiving these jurisdictional objections but none the less it is our hope that this meeting will bring these proceedings to a close on amplicable terms for everyone so we would like to address each of the allegations that has been raised this evening. Now I think that they fall pretty much in three different catagories and I would like to address them separatly.. The first is that we haven't complied with the site plan and therefore, this Board tonight should revoke our special permit. Now, I would like to point out that there simply is no authority for a Zoning Board to revoke a special permit because the site plan hasn't been complied with. The only thing that is provided in your ordinance is that after a certain period of time of non-compliance a site plan approval simply expires, but I would point out to the Board §450.5 of your zoning law which provides that every person is given 3 years to comply with the site plan approval that was granted by the Planning Board and indeed that section requires, quote,"substantial construction in accordance with the site plan". Now, I have heard alot of talk in the minutes of previous' meetings and by Mrs. Kurtz this evening about claiming gross failures of us to meet our L_ Lsite plans as far as the number of plantings. I think the Board did get a copy of the site plan, is that correct? If you look in the bottom left hand corner of that site plan you will see there is something called a planting schedule and it shows the total of, I believe, 75 plants. As it happens, that corner of the site plan talks about 75 plantings but if you count the circles drawn on the drawing it actually comes to a total of 89 plantings and we have voluntarily gone with that higher total and not with the lower total so indeed when we are finished there will be 89 trees and schrubs on the site and not 75. As I think has been explained to the Board previously, we have 20 trees that are presently on order and the only reason that they have no yet been planted is because they cannot be planted in the summer time, it is just considered to hot and unsafe for the trees. In fact, I have to submit to the Board this evening an affidavit for Richard Santarelli that says.(affadavit on file). I think this confirms our good faith in attempting to comply with the site plan, as I said under the Town's law we really have 3 years to substaintially comply. We have, as a matter of fact, already paid for each and every one of these trees that are on order. We had first expected to receive them by the end of this month, now we are told that it will probably be the second week of October but I assure you that those trees will be planted as soon as they are available. Secondly, I think that it is a mistake to judge all of our plantings first of all now before they are all planted, I mean conceededly, 20 of our trees including most of our heavier screening are Norway Spruces, but they can't be planted until they are delivered in several weeks. Secondly, I would hope that it is obvious that one cannot plant trees that are 20 to 30 feet tall and it is considered poor landscaping practice to do so. I have another affadavit here from Bill Cadwallader who owns Wiccopee Garden House and has been a landscaper in the community for many years and I will just notice in side that the reason that I asked him to review the landscaping here is I wanted to ba able to submit to this Board the affadavit of a neutral person that wasn't related to us in any way. He doesn't supply our plants, he doesn't do any of the work, we are in no contractual relationship and I will read sections of his affadavit here. (Affadavit on file) Now, of the trees that were there, the trees that are there now were measured by your Zoning Administrator and indeed they were found to be 3.2 inches short on the average on our dogwood trees and 4.8 short on the average of our white pine trees. Now, I submit that this is not a substaintial non-compliance Page -5- September 24th, 1985 with the site plan and I think we can easily based upon Mr. Cadwallader's affadavit and subject to your own knowledge also that if our trees are average say 5 inches short this year they grow 12 to 18 inches a year they will certainly be of sufficient size next year and I think that as a matter of fact Mr. MacGeorge met last night with Volino Nursery's at the site with the point of view of speaking to them of doing some additional planting and screening that he wanted to do totally voluntarily even though it is not on the site plan. Unfortunately they are not willing to enter into a contract merely because of their busy schedule this fall, they are just completely booked solid. But, a concern that they expressed was that if anything, some of the plants on the site plan are a little close, theymight not look close right now, but after a few years of growth you are going to have some very dense planting that might be better off spacing a little further away to allow for their future growth. Now, so in conclusion on those plants I guess are summary statement would be first of all we are planting more plants that are on the planting schedule there, I said in my petition to the Supreme Court 75 trees and schrubs it turns out that we are going to plant 89. In addition to that, Mr. MacGeorge voluntarily plans to plant four additionalpine trees and may plant others as well and we submit by next year, certainly by the end on the 3 year period our plants will be far in excess of the size required in the site plan. Now, one other point that has been mentioned is the oil water separator and again I don't want to unduly belabor this point because I think it is something that is up to the Building Inspector and not up to the Zoning Board but unless it needs any emphasis at all I would just state that I have received a letter at my request from one of the sanitary engineers, John Sansalone of DEC who has confirmed to me that operation of a separator as a holding tank without a discharge to surface or ground water does not require a permit and that is exactly what we are using it for. We only said that we would have the oil and water separator if indeed we plan to separate those materials to discharge something to the ground water. Right now we are discharging nothing to the ground water so we don't need any kind of DEC permit at all. Now, the second broad category of complaints seems to be that we did notcomply with the special permit conditions imposed by the Board but the only two claims underneath this heading are that we haven't complied with the hours of operation but there are no conditions on hours of operations and the second is the claim of test driving. Mr. MacGeorge states that he has not test driven cars. He drove to pick up a customer and take the customer home and early on had some trouble with his own dogs looking for them in his own car, this has been solved now and I think both your own Town's people and neighbors have conceeded that in any event this was a diminimous violation which has not proceeded in any way, shape or form and I can assure the Board that it will not, however, I would make this statement that there is nothing in the condition that this Board previously imposed that deprives my client of the right to drive on Park Hill Drive the same way that every other resident of this Town can drive on Park Hill Drive. The prohibition was of test driving vehicles and not of driving vehicles so I don't think that the mere fact that Mr. MacGeorge drives his own car on that road should result in there being any imprints that he is commiting any violation. Finally, the argument again, I don't mean to belabor points that are not being belabored now that Mrs. Kurtzs did repeat some things at the last meeting and I am not sure which of the complaints the ne*ghbors are withdrawing at this point so I will just address them briefly. The third category of complaints really is pretty much that we don't have a CO and therefore this Board should revoke our permit. Well, our response to that would be, first of all, there really is no authority vested by the Town Law in the Zoning Board to revoke a Special permit based upon lack of a CO. In fact there is no authority in the Zoning Board to take any action with respect to a CO because thats vest soley in the Building Inspector and Zoning Administrators to handle. But more substantively it is our position that the original cease and desist order was improper that we have been entitled to a CO all along we have requested a temporary CO and final CO . We are willing to post whatever bond the Town may require to assure that these remaining trees will be planted and again, I think it is clear from the minutes of the last meeting that the Building Inspector has also agreed that we have done everything that the Town has asked us to do as far as getting that Certificate of Page -(0- September 24th, 1985 Occupancy and posting bond so, again I think even if the Board does for the moment look at the sustance of it even though there really isn't any procedure of this Board to revoke a Special Permit on that basis we are really very close to getting that CO and I would expect that it will be obtained in the next week or so. So, in summary, I think that I would just emphasize to you that, in fact, before all of this thing started the only comments I had heard from anybody about the MacGeorge building were people saying boy, that really looks great. I can't believe it is an automotive repair garage. I think that really he has done a job which the entire community can be proud and I would venture to say even if you looked all around the state I really don't think that you could find another automotive repair garage that looks nearly as good. I think that we have done everything within our power to meet all of the Towns requirements and tried to be good neighbors. Thank you. Mr. Landolfi stated, before I entertain any questions from the floor are there any questions from the members of the Board of either Mrs. Kurtz or Ms. Van Tuyl. Mr. Caballero, no. Mr. Cortellino, no. Mr. Hirkala, no. Mr. Landolfi stated, fine, I will entertain some questions from the floor. Mrs. Kurtz stated, I just wanted to state that we have no objections to Mr. MacGeorge driving his car on our street, however, one of the cars that we say and were able to determine didn't pick up or drop off any neighbors and he took a car, a little gray sports car, convertible, with no license plates on it, he wasn't picking up a dog and he wasn't picking up or dropping off neighbors, that is what we wanted to avoid. We don't mind if he drives his car but we don't want him road testing cars that might possibly have faulty brakes,we have alot of children playing, my own playing on that street and that is our only concern. We are not out to get him but when we see a car with no plates coming and turing around in Boxwood Close out to Park Hill and we could actually from where we were standing see it turn into the MacGeorge property you can't fool us by telling us that. The second thing is that the trees, Anna Young may have on the average found them to be 3 or 4 inches short but I think the pictures that we show have shown you. We wouldn't care if it was 3 or 4 or 5 inches, we are talking about a couple of feet and I just wanted to make sure that you consider that also. Inches don't care about that. One of the neighbors that is adjacent to MacGeorge Automotive has absolutely no screening from the MacGeorge Automotive what so ever and she has had her house appraised and it is drastically, it is falling down in price. MacGeorge Automtive looks like it is part of her property now, there is no proper screening. Ms. Van Tuyl stated,if I could just respond to that briefly, that silver sports car is Dean MacGeorge's own automobile which he specifically was trying to find his dog and again I will rest on the record and rely on the Zoning Administrator ...... as the average height of trees. Mr. Cortellino stated, I have a question. Earlier you said that Mr. MacGeorge can drive his car on the road and with that I agree we have no jurisdiciton over that, if is a licensed car and he can drive anywhere within the Town. Now, I am asking you, is it your contention that the Zoning Board cannot regulate the test driving of cars on the road. Ms. VanTuyl answered, heavens no. Absolutely not, we agreed to that condition at the outset and we have no quarrel with it at all. Page -#I- September 24th, -_1985 Mr. Landolfi asked, are there any other questions from anyone in the audience. Mrs. Kurtz stated, I have on question. We heard that the oil that was going to be drained into the tank and then disposed of, just considering, we didn't now that he wanted to burn it for heat. Ms. VanTuyl answered, that is not his intention. We really want to be good neighbors and we are happy to answer any questions that the neighbors have. Mr. MacGeorge stated, I just want to say one thing. I worked at the mobil station for 2 years, I worked at another show for 3 years full time and we used Park Hill for tes driving and thats five years and you guys never knew about it. Mrs. Kurtz stated, now we do and we wouldn't have like that if we had known. Mr. Hirkala stated, I am not to clear on how you are going to deal with the waste oil. Mr. MacGeorge answered, we are putting it in a thousand gallon tank and pumping it out. We were originally going to use the waste oil burner and we shelled that idea and we are going to go with natural gas. Mr. Hirkala asked, what do you mean that you are pumping it out. Mr. MacGeorge answered, there is a company that comes down and pays me per gallon. Mr. Hirkala asked, so you store it under ground. Mr. MacGeorge answered, yes, it is a thousand gallon tank. Mr. Landolfi asked if there were any further questions. Mr. Porache asked, when the place was being built before the pipe the fellas had to dig up across the street, it really is not his problem but I asked the contractor at that time if they would regrade that property, it is not my property, it is the next home, the fella told me he would bring the backhoe over there and flatten it out and never did. Mr. Landolfi asked if there is anyone else to speak either for or against the appeal. There was no one. Mr. Landolfi stated, we will now close this appeal. Mr. Landolfi asked Mr. Kessler to come forward. The Board has a legal question that we would like to ask you. Mr. Hirkala asked, I would like it for the record. MacGeorge's attorney stated that we don't have the jurisdiction over the special permit as far as the revocations, I would like your official opinion. Mr. Kessler answered, you have jurisdiction over the Special Use Permit but you don't jurisdiction to revoke that Special Use Permit. Mr. Hirkala stated, we can't revoke the CO because the CO hasn't been issued. Mr. Landolfi answered, that is correct. Page -9- September 24th, 1985 Mr. Caballero stated, on Appeal 4843 of the matter of application of Moccasin Hill Estates Homeowners Association to determine whether MacGeorge Automotive has complied with the site plan approval, and if not, to revoke the Special Use Permit, I make a motion that that request be denied, that the MacGeorge people endeavoring to put in that screening as soon as possible. Mr. Cortellino seconded the motion. Vote: Mr. Landolfi - aye Mr. Caballero - aye The motion was carried. Mr. Cortellino - aye Mr. Hirkala - aye Mr. Cortellino made a motion to adjourn. Mr. Hirkala seconded the motion. Vote: Mr. Landolfi - aye Mr. Caballero - aye The motion was carried. Mr. Cortellino - aye Mr. Hirkala - aye The meeting was adjourned at 7:55 P.M.. Respectfully submitted, A- 4lu .\ t Linda Berberich, Secretary Town of Wappinger Planning Board lb