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2005-03-29 ZONING BOARD OF APPEALS March 29, 2005 -.... Agenda Town of Wappinger Zoning Board of Appeals MEETING DATE: March 29, 2005 TIME: 7:30 PM Town Hall 20 Middlebush Road Wappinger Falls, NY Approve minutes for March 15, 2005. Public Hearing: .--.... Appeal No. 04-7068 Real Holdine: Corp. (Gasland)- Seeking the following four area variance's of District Regulations in an HB Zoning District. 1. -Seeking an area variance of Article V, Section 240-18 Paragraph F of District Regulations in an HB Zoning District. - Where two acres is required, the applicant is proposing .53 acre for continued use of a pre-existine: non-conformine: lot. thus reQuestine: a variance of 1.47 acres. 2. -Seeking an area variance of Article VI, Section 240-37 of District Regulations in an HB Zoning District. - Where a minimum lot depth of 200 feet is required, the applicant is proposing a lot depth of 153 feet, thus reQuestine: a variance of 47 feet for an existing non-conforming lot. 3. -Seeking an area variance of Article VIII, Section 240-52 Paragraph A of District Regulations in an HB Zoning District. - Where 1000 feet is required from a residential district, the applicant is proposing 400 feet, thus reQuestine: a variance of 600 feet to allow issuance of a Special Use Permit. 4. -Seeking an area variance of Article VIII, Section 240-52 Paragraph E of District Regulations in an HB Zoning District. - Where 2.500 feet is required between gasoline filling stations, the applicant is proposing 85 feet, thus reQuestine: a variance of 2.415 feet to allow issuance of a Special Use Permit. The property is located on the corner of Old Hopewell Road and Route 9 and is identified as Tax Grid No. 6157-02-610544 in the Town of Wappinger. .... 1 Town of Wappinger Zoning Board of Appeals Page I Minutes of March 2~~~S APPROVED APR 27 2895 - MINUTES Town of Wappinger Zoning Board of Appeals March 29,2005 Town Hall 20 Middlebush Road Wappinger Falls, NY Summarized Minutes Members Present: Mr. Fanuele, Mr. Prager, Mr. Warren, Mr. DellaCorte, Ms. McEvoy-Riley Chairman Vice-Chairman Member Member Member Others Present: ~ Mr. Caviglia Mrs. Lukianoff, Zoning Administrator Mrs. Roberti, Secretary SUMMARY Public Hearioe:: Real Holding Corp. -Adjourned Public Hearing to April 27, 2005. ( Gasland ) ....... Town of Wappinger Zoning Board of Appeals Page 2 Minutes of March 29,2005 - Mr. Warren: Mr. Prager: Vote: Motion to approve Minutes for March 15,2005. Second the motion. All present voted aye. '-- Appeal No. 04-7068 Real Holdinl! Corp. (Gasland)- Seeking the following four area variance's of District Regulations in an HB Zoning District. 1. -Seeking an area variance of Article V, Section 240-18 Paragraph F of District Regulations in an HB Zoning District. - Where two acres is required, the applicant is proposing .53 acre for continued use of a pre-existinl! non-conforminl! lot. thus reQuestinl! a variance of 1.47 acres. 2. -Seeking an area variance of Article VI, Section 240-37 of District Regulations in an HB Zoning District. - Where a minimum lot depth of 200 feet is required, the applicant is proposing a lot depth of 153 feet, thus reQuestinl! a variance of 47 feet for an existing non-conforming lot. 3. -Seeking an area variance of Article VIII, Section 240-52 Paragraph A of District Regulations in an HB Zoning District. - Where 1000 feet is required from a residential district, the applicant is proposing 400 feet, thus reQuestinl! a variance of 600 feet to allow issuance of a Special Use Permit. 4. -Seeking an area variance of Article VIII, Section 240-52 Paragraph E of District Regulations in an HB Zoning District. - Where 2.500 feet is required between gasoline filling stations, the applicant is proposing 85 feet, thus reQuestinl! a variance of 2.415 feet to allow issuance of a Special Use Permit. The property is located on the corner of Old Hopewell Road and Route 9 and is identified as Tax Grid No. 6157-02-610544 in the Town of Wappinger. Present: Judson Siebert Vincent Cappelletti Neil Wilson Mr. Prager: Barbara, are the mailings in order? Mrs. Roberti: Yes. ....... Town of Wappinger Zoning Board of Appeals - Mr. Prager: Mr. Warren: Vote: Mr. Siebert: ....... ....... Page 3 Minutes of March 29,2005 Motion to open the public hearing. Second the motion. All present voted aye. I am an attorney that represents the applicant. This is an application for four separate variances. The first two quite frankly are intrinsic to the lot. This is a pre-existing non-conforming lot in the HB district. The second two branches of this application arise from the request for a SUP regarding a gas station. I outlined for the board that this application goes back to 2000. At this time the attorney reviewed the application from the beginning to the present. The applicant had met with the Town Board to address whether there would possibly be another means to address the situation of restoring the site to an economically viable use. Those discussions took place but nothing has happened on the Town Board front so we are back before this board and our first meeting was early this year. So what you have before you is an application that has been fully submitted, the SEQRA Lead Agency has been made and we are back and quite frankly there has been no change to the lot itself or the surrounding area. We have added just a few revised and updated items in respect to this application which include, an updated report from Mr. Wilson and Land Resource Consultants and that report addresses a particular concern that was brought up by the board in 2001. That concern was that if this application was granted would this open the flood gates to other similar requests for gas stations. We felt that this was a key concern of the board and so we had Mr. Wilson go back and revisit the issue and submit an updated report. He submitted a plan for what we call a plain vanilla concept to which he will address tonight. In respect to this application for area variance's, the test involves the weighing of the benefits to the applicant brought about by the granting of these variances against the detriment to the health, safety and welfare of the community by granting the variance. In weighing this undertaking there are five separate factors or tools that the board is to employ and they are: I. Whether there will be an undesirable change in the character of the neighborhood or community. 2. Whether the applicant can achieve the benefits sought by some other means. 3. Whether the relief sought is substantial in nature. 4. Whether there will be an adverse affect or impact on the physical or environmental conditions in the neighborhood or district. 5. Whether the hardship is self-created, this in an area variance context is not unlike a use variance context. Town of Wappinger Zoning Board of Appeals ..... Mr. Fanuele: Page 4 Minutes of March 29,2005 The area variances that we seek to restore a gas and filling station use to this property will benefit the applicant and will benefit the community. It will take a property that has been fallow that quite candidly is unattractive in appearance and that has been unable to support an economically viable use for years. It will turn that property around and it will be developed in an attractive fashion, become economically viable and become a bigger tax base for the town and will return to the use for which it was created. My client purchased this property in a contaminated state, he has expended time and resources to remediate it and he has tried to develop this for other uses. He wants to make the site viable, attractive and we would ask this board to grant the variances. Swore in Mr. Capppelletti. Mr. Cappelletti: When I bought this property I was hoping to clean it up and thought I would be the hero in doing so and instead it has been a lead weight around my neck. I haven't been able to do anything with it since I cleaned it up. The last five years has been fighting just to have the ZBA hear my case. It's sitting there and I am paying taxes all these years including liability insurance and lawyer's bills. The Town changed the zoning while I was doing the clean-up; it went from 1'2 acre to 5 acres. I tried a CVS and a donut shop for that site and they have fallen apart. I never should have dismantled it and I would have been getting paid all the way through. If there was a good reason why it shouldn't be a gas station then fine. We have had three public hearings on this project and there has never been any opposition. This would bring competition, jobs, bigger land taxes and more sales taxes so I don't see any negatives with this. Had I done the clean-up while the gas station was running it would still be there. With construction costs so high it would be cost prohibitive for a small store and it is not big enough for anything large with parking. .......... Mr. Wilson: .'-'" I am the principle of Land Resource Consultants. I was hired to do a study and I have prepared that study because of questions raised in 2001. I have updated this study in March of2005. We had provided the report in 2001 and I call your attention to page three which explains the purpose of this report. Proceeded to read from his report: Page 3 In considering the application for relief from these two sections of the Town Zoning Law, the ZBA has requested information concerning the number and location of properties in the Town of Wappinger that are similar (in setting, past and present land use and the like) to the Real Holding Corp. parcel. The ZBA's request stems from its concern regarding the precedent that could be set by the Town of Wappinger Zoning Board of Appeals Page 5 Minutes of March 29, 2005 - (theoretical) granting ofthese two area variances. It is the applicant's position that information regarding such other properties is not determinative of its area variance requests, as the ZBA is to limit its review to those standards set forth in S240-107 of the Town Zoning Law and S267-b of the Town Law ofthe State of New York. The applicant, however, has agreed (without prejudice to its position) to provide this information. The following report, based on field observations and land use studies conducted by LRC in March and April of this year, reveal that the Real Holding Corp. property is unique as to its location, proximity to other land uses, and past and present land use. LRC has identified only one, albeit remotely possible, property in the Town that might stand to gain precedential benefit from the granting of the relief sought by the applicant from S240-52(A) and S240-52(E). This property is identified and discussed below. STUDY PURPOSE The ZBA has asked for an analysis of similarly situated and similarly zoned properties that could seek the same type of setback relief from S240-52(A) and 9 240-52(E) as is requested by Real Holding Corp. and claim the granting of the present application as precedent. '-- METHODOLOGY Based on the ZBA's request, LRC established the following criteria for the analysis: 1. Property located within one of the five commerciallbusiness zoning districts that allow gasoline filling stations by special permit, and 2. Property currently in commercial use that had once been used as a gasoline filling station, is presently vacant, and that could be converted back to a gasoline filling station, and 3. Property currently in commercial use that could be modified to accommodate gasoline filling as an accessory or additional use. Page 4 "-'- With respect to criteria number 2, it should be noted that LRC assumed that the only properties that could be converted back to a gasoline filling station were those that still retained the original gasoline filling station structure(s), and had not been converted to some new commercial or residential use. This rational is consistent Town of Wappinger Zoning Board of Appeals Page 6 Minutes of March 29, 2005 - with the present state of the Real Holding Corp. site, which has not been used as, or converted to, any other use since the original gasoline filling station use ceased in the early-1990's due to environmental considerations. LRC identified the areas to be surveyed based on their location within one of the five zoning districts that allow gasoline filling stations by special permit. These areas are depicted on Sheets A-I, A-2 and A-3 accompanying this report. The zoning districts are as follows: Highway Business (HB) This district is found only along the Route 9 highway corridor in a quilt work pattern from the Town boundary with the Village of Wappinger Falls and running southward to the boundary with the Town of Fishkill. (See Sheet A-I). Hamlet Mixed Use (HM) This district defines some of the significant cross road intersections in the Town, notably Old Hopewell Road & Route 9D (Hughsonville), and All Angels Road & Route 82. (See Sheets A-land A-3). ""-' Neighborhood Business (NB) This district defines some of the minor roadside business areas in the Town including Old State Road & Route 9D; Chelsea Apartments & Route 9D; Meyers Comers Road & DeGarmo Hills Road; and Route 376 & Maloney Road. (See Sheets A-I and A-2). General Business (GB) This district is located along Route 376 and along New Hackensack Road at their boundary with the Dutchess County Airport. This district is also found near the end of North River Road contiguous with the railroad line along the Hudson River just north of the Chelsea Hamlet. (See Sheets A-I and A-2). Page 5 Conservation Commercial (CC) This district is located along some well traveled highway corridors such as Route 376 near the boundary with the Town of East Fishkill; along a small portion of Maloney Road adjacent to the NB District at the intersection of Maloney Road & Route 376; and along Route 9D adjacent to the NB District near the intersection of Route 9D & Old State Road. (See Sheets A-I and A-2). In total, LRC determined that there were i4 separate areas in the Town that met the criteria number 1. '-' Town of Wappinger Zoning Board of Appeals Page 7 Minutes of March 29,2005 FIELD OBSERVATIONS & ANALYSIS - Based on the zoning district mapping, LRC conducted field reconnaissance of the corridors and intersections to determine the present use of properties in the study areas, and ascertain whether any of the existing properties met criteria number 2 or 3. These field observations were conducted on March 20, April 10 and April 11. Highway Business (HB) .Route 9 Corridor Observation: Although the HB District comprises almost 2.3 miles of Route 9 in the Town, the only observed property meeting any of the stated criteria is the Real Holding Corp. site at the intersection of Route 9 & Old Hopewell Road. A 7-Eleven Convenience store with gasoline sales as part of the operation is located approximately 60 feet north of the Real Holding Corp. site. Additionally, as noted on Sheet A-2, the site is located within 1000 feet of a residential district. The site is surrounded by commercial uses to the north, south and east, and is bounded by Route 9 to the west. According to figures from the New York State Department of Transportation the average annual daily traffic on Route 9 at the site is 35,920. ~ Analysis: Page 6 Hamlet Mixed Use (HM) .Old Hopewell Road & Route 9D (Hughsonville) None required Observation: Only one property was observed that met criteria number 3. (See Study Area 4, Sheet A-2). The db Mart convenience store located on Route 9D just south of the intersection is the type of use that often accompanies, or has as an accessory use, a gasoline filling station. The existing site is bounded by single family homes to the north, west and south, and single family homes and small businesses across Route 9D to the east. According to figures from the New York State Department of Transportation the average annual daily traffic on Route 9D at the site is 18,360. Analysis: It should be noted that the db Mart use was originally developed as a stand-alone convenience store with no gasoline pumps, and has apparently operated profitably without gasoline sales for many years. Furthermore, when compared to the present siting standards for. gasoline filling stations, the site appears to be undersized and relatively inaccessible (i.e. a single narrow curb entrance) to accommodate gasoline pumps and access aisles to and '-- Town of Wappinger Zoning Board of Appeals Page 8 Minutes of March 29,2005 - from the pumps. It is also doubtful that the site could accommodate gasoline delivery trucks without a major re-configuration of on-site improvements and additional land. In addition, residential homes, and not merely a residential district, adjoin the property to the north, west and south, and are located immediately east of the site across Route 9D. Light, noise and odors associated with gasoline filling stations may have a deleterious effect on neighboring residences and the character of the neighborhood and the applicant would need to show that adding gasoline sales to the convenience store operation would not adversely affect the character of the neighborhood or be detrimental to nearby residential and small business properties. For these reasons this site is not considered "similar or similarly situated" so as to claim benefit from any ZBA action relative to the Real Holding Corp. application. Hamlet Mixed Use (HM) -All Angels Road & Route 82 Observation: No property meeting any of the stated criteria was observed. (See Sheet A-3). Page 7 Analysis: None required. -'~ Neighborhood Business (NB) -Old State Road & Route 9D Observation: Only one property was observed that met criteria number 3. (See Study Area 3, Sheet A-2). The Stewart's Ice Cream Shop located on Route 9D just south of the intersection is the type of use that often accompanies, or has as an accessory use, a gasoline filling station. In fact many of the Stewart's stores that have recently been constructed have a two-pump gasoline filling island as part of the site. The site is surrounded by vacant, undeveloped land to the north, east and south, and portions of the lands to the east and south appear to be wet. A small stream is also noted as running near the property and across Route 9D. Lands to the west across Route 9D are vacant and undeveloped and also appear to be wet. According to figures from the New York State Department of Transportation the average annual daily traffic on Route 9D at the site is 18,360. -..- Analysis: This site was developed within the past few years as a stand-alone convenience store with no gasoline pumps, and has apparently operated profitably without gasoline sales for several years. Although highway access appears to be good, the site may be undersized to accommodate pump islands and movement of gasoline delivery trucks. Furthermore, it appears that the layout of the building on the site may impede development of a sound site Town of Wappinger Zoning Board of Appeals Page 9 Minutes of March 29,2005 ingress/egress and pump access plan for vehicle movement. - For these reasons this site is not considered "similar or similarly situated" so as to claim benefit from any ZBA action relative to the Real Holding Corp. application. Neighborhood Business (NB) -Chelsea Apartments/Route 9D Observation: observed. No property meeting any of the stated criteria was Analysis: None required. Page 8 Neighborhood Business (NB) -Meyers Comers RoadlDeGarmo Hills Road ........... Observation: Only one property was observed that met criteria 3. (See Study Area 2, Sheet A-2). The db Mart convenience store located on Meyers Comers Road, across from an existing Gulf Oil filling station, is the type of use that often accompanies, or has as an accessory use, a gasoline filling station. Single family homes are present to the north across Meyers Comers Road, and to the east of the site. Also across the street, and adjacent to the Gulf Oil station, is a small retail strip. The average annual daily traffic at the site is not available but is expected to be less than that observed along Route 9D at the Hughsonville db Mart store site. "-' Analysis: As with the db Mart in the Hughsonville Hamlet, the site appears to be undersized and relatively inaccessible (i.e. a single narrow curb entrance) to accommodate gasoline pumps, and access aisles to and from the pumps. The highway access to the site is extremely narrow and the on-site buildings would need to be completely reconfigured to handle gasoline sales, including the movement of delivery trucks to and from the site. The site was originally developed as a convenience store without gasoline sales and has apparently operated profitably during all relevant times without gasoline sales. In addition, single family homes, and not merely a residential district boundary, are located immediately north of the site across Meyers Comers Road. Light, noise and odors associated with gasoline filling stations may have a deleterious effect on neighboring residences and the character of the neighborhood and the applicant would need to show that adding gasoline sales to the convenience store operation would not adversely affect the character of the neighborhood or be detrimental to nearby residential and small business properties. Town of Wappinger Zoning Board of Appeals Page 10 Minutes of March 29,2005 -- For these reasons this site is not considered "similar or similarly situated" so as to claim benefit from any ZBA action relative to the Real Holding Corp. application. Page 9 Neighborhood Business (NB) .Route 376IMaloney Road Observation: Only one property was observed that met criteria 3. (See Study Area 1, Sheet A-I). The Hometown Motor's property is located at the intersection of Route 376 and Maloney Road directly across from an existing Gulf Oil filling station. The Hometown Motor's site is a former gasoline filling station, and although all of the original gas pumps have been removed it appears that the original gas station building and pump canopy are still in place. Single-family homes are located immediately north of the site and a large apartment complex is located to the east. The Wappinger Creek is located approximately 150 feet west of the site across Route 376. According to figures from the New York State Department of Transportation the average annual daily traffic on Route 9D at the site is 15,600. .......... Analysis: The site has been completely converted to use as a used vehicle sales establishment. It is speculative as to whether it ever will, or is capable of being, converted back to a gasoline filling station use. By virtue of proximity to the Wappinger Creek the site may be environmentally sensitive. In addition, the Hometown Motor's site is owned by a corporation related to Real Holding Corp. (both share the same principal, Mr. Vincent Cappelletti). The Hometown Motor's site, unlike the Real Holding Corp. parcel, has been able to support and maintain a commercially viable use. This is the only site found by LRC in the Town of Wappinger considered to be "similar or similarly situated" so as to claim benefit from any ZBA action relative to the Real Holding Corp. application. General Business (GB) . Route 376 at the Dutchess County Airport Observation: observed. No property meeting any of the stated criteria was Analysis: None required. Page 10 General Business (GB) .New Hackensack Road at the Dutchess County Airport .......... Observation: observed. No property meeting any of the stated criteria was Town of Wappinger Zoning Board of Appeals Page 11 Minutes of March 29,2005 Analysis: None required. .., General Business (GB) . North River Road at the Hudson River Observation: observed. No property meeting any of the stated criteria was Analysis: None required. Conservation Commercial (CC) .Route 376 at Town of East Fishkill Observation: observed. No property meeting any of the stated criteria was Analysis: None required. Conservation Commercial (CC) .Maloney Road near Route 376 Observation: observed. No property meeting any of the stated criteria was Analysis: None required. .~ Conservation Commercial (CC)-Route 9D near Old State Road Observation: observed. No property meeting any of the stated criteria was Analysis: None required. Page 11 CONCLUSIONS We note at the outset that this study is intended to assist the ZBA in addressing its concerns as to the potential ramifications of granting the relief requested by Real Holding Corp. and is not intended to diminish the rights of other landowners to apply for the same relief. Further, our analysis also reveals that the size and configuration of the five commercial districts studied herein, combined with the presence of existing gasoline filling stations throughout the town, make it highly likely that any proposed new gasoline filling station will require relief from either or both of the setback standards set by 9240-52(A) and 9240-52(E). Simply put, it does not appear that any new gasoline filling station can be established anywhere in the Town of Wappinger without relief from one or both of the setback prOVISIOns. '-' Town of Wappinger Zoning Board of Appeals -- Mr. Wilson: ..... Mr. Fanuele: Mr. Wilson: Mr. Siebert: Mr. Cappelletti: Mr. Fanuele: Mr. Wilson: '-- Page 12 Minutes of March 29,2005 However, with respect to the issuance of relief from these setback requirements, the Real Holding Corp. parcel is quite unique. First, it is within a commercial zone and is not in close proximity to residences. Second, the property was developed for use as a gasoline filling station; was the site of a gasoline filling station for many years (the last commercially viable use of this property); and is sited on a highway corridor, next to other automobile-related uses. Third, Real Holding Corp. has been unable to develop the property for another commercially viable use. Fourth, the site can adequately support its proposed re-development as a gasoline filling station. As for the specific question this study seeks to answer, the Hometown Motor's property located at the intersection of Route 376 and Maloney Road is the only site found by LRC in the Town of Wappinger considered to be "similar or similarly situated" so as to claim benefit from any ZBA action relative to the Real Holding Corp. application. We prepared this report to let the board see how functionally this site could work. Is this going to be the final site plan? I don't think so. We have a considerable amount of work to do with respect to the regulatory environment and the Phase II, Storm Water regulations that need very close attention paid to them and that will drive a lot of our design decisions. There may in fact be future variances from the property boundaries depending upon the final site layout. We have a comer property with two front yards. We are calling this a conceptual site plan and we have a lot of work to do. Does your property come up to where you put the curbing in? That is actually this triangular area here and this is an easement that was obtained by the adjoining property owner to allow for parking. That dash line is the property line and the curb line is over that. By the way, the deed that created the Texaco lot was carved out of a larger parcel and three easements are shown on the plans. Two are on the Real Holding parcel and one is on the other side. It is approximately 1/10 of an acre and it increases our property by that 1/10 of an acre. The tanks are closer to the comer between Route 9 and Old Hopewell Road? Yes. Page 13 Town of Wappinger Zoning Board of Appeals - Mr. Fanuele: Mr. Wilson: Mr. Cappelletti; Mr. Fanuele: Mr. Cappelletti: Mr. Prager: Mr. Cappelletti: Mr. DellaCorte: "- Mr. Cappelletti: Mr. Siebert: Mr. Wilson: Mr. Siebert: Mr. Prager: Mr. Wilson: ......... Minutes of March 29,2005 The trucks would have to come in on the south entrance. Mr. Siebert, Mr. Cappelletti and I had considerable conversations as to what to present to you tonight for your consideration with the understanding that we still have considerable more work to do to design this site to get it to function. It's a tough comer. The PB is going to come up with all the things that they will want to see such as where they want the building, etc. One of you made a statement that I feel needs clarification. Was the 7/11 pumps there at the same time this was a gas station? Yes. They were both working gas stations when it was discovered that 7/11 had a leak that caused the contamination. What year did you purchase this parcel? 1992. You talked whether this property could be economically feasible as something else and your opinion is that it only works for this? This site had always been a filling station and it can handle the taxes and the gasoline companies come up with big money to develop these sites. How many gas stations do you see go out of business? For fast food sites there would be an increased need for water and sewer as well as they need at least one acre which this site does not have. My company does a lot of work with fast food companies as well as big and little vanilla boxes. The fast food companies know what they want with the drive up windows and this site just doesn't work. In 1992 this parcel was in Mr. Cappelletti's name and in 1997 it was transferred to Real Holding Corp. You mentioned in the Vanilla box that this could handle 1600 sfbut this says 2400 sf? That was a straight recreation of the one from 1991. I don't believe that will be the final size. Page 14 Town of Wappinger Zoning Board of Appeals ." Mr. Fanuele: Mr. Prager: Mr. DellaCorte: Vote: Mr. Prager: Mr. DellaCorte: Vote: ~ Mr. DellaCorte: Mr. Prager: Vote: Minutes of March 29, 2005 We will adjourn this to April 27t\ 2005 So moved. Second the motion. All present voted aye. Motion to formally change the April 26, 2005 to April 27, 2005 in order for some members to attend a class. Second the motion. All present voted aye. Motion to adjourn. Second the motion. All present voted aye. Meeting ended at 9: 00 PM ~ Respectfully Submitted,_ ~t4~uc WduJL7' B~ Roberti, Secretary Secretary - Zoning Board of Appeals