Loading...
2005-03-01 ZONING BOARD OF APPEALS March 1, 2005 ......... Agenda Town of Wappinger Zoning Board of Appeals MEETING DATE: March 1, 2005 TIME: 7:30 PM Town Hall 20 Middlebush Road Wappinger Falls, NY Approve minutes for January 25, 2005. Approve minutes for February 8,2005. Approve site minutes for February 12, 2005. Adjourned Public Hearing: Appeal No. 05-7251 Richard Scherpf -Seeking an area variance of Section 240-37 of District Regulations in an R-20 Zoning District. - Where a front yard setback of 35 feet is required, the applicant is proposing a front yard setback of 30.2 feet to allow for a front porch with two steps. thus reQuestin!! a variance of 4.8 feet. The property is located at 23 Beechwood Circle and is identified as Tax Grid No. 6157- 04-678480 in the Town of Wappinger. ~ Discussions: Appeal No. 05-7252 Gre!!!! & Vicki Barber -Seeking an area variance of Section 240-37 of District Regulations in an R-40/80 Zoning District. - Where a front yard setback of 50 feet is required, the applicant is proposing a front yard setback of 26 feet to allow for a front porch. thus reQuestin!! a variance of 24 feet. The property is located at 43 Old State Road and is identified as Tax Grid No. 6057-04- 745057 in the Town of Wappinger. Appeal No. 04-7235 RJA Holdin!!. Inc. -Seeking an Interpretation following the determination of the Zoning Administrator, dated May 28, 2004 regarding Section 240-37 and Section 240-16 ( c) 3 and its applicability to the proposed use as a commercial development / Real Estate office. The property is located on 51 Myers Corners Road and is identified as Tax Grid No. 6157-02-899988 in the Town of Wappinger. ~ "'-' Town of Wappinger Zoning Board of Appeals March 2, 2005 Summarized Minutes Members Present: Mr. Fanuele, Mr. Prager, Mr. Warren, Mr. DellaCorte, Ms. McEvoy-Riley Others Present: MINUTES Town Hall 20 Middlebush Road Wappinger Falls, NY Chairman V ice-Chairman Member Member Member Mr. Caviglia, Special Counsel Mrs. Lukianoff, Zoning Administrator Mrs. Roberti, Secretary JCj -- MINUTES APPROVED MAR 1 ') 7f1~5 ......... SUMMARY Public Hearing: Richard Scherpf Discussions: -Variance Granted Gregg & Vicki Barber -Public Hearing on March 15,2005 RJA Holding, Inc. ..... -Interpretation Denied. ~ Mr. Warren: Mr. Prager: Vote: Mr. Warren: Mr. Prager: Vote: Mr. Warren: Mr. Prager: Vote: Motion to approve Minutes for January 25, 2005. Second the motion. All present voted aye. Motion to approve Minutes for February 8, 2005. Second the motion. All present voted aye. Motion to approve Site Minutes for February 12, 2005. Second the motion. All present voted aye. Appeal No. 05-7251 Richard Scherpf -Seeking an area variance of Section 240-37 of District Regulations in an R-20 Zoning District. - Where a front vard setback of 35 feet is required, the applicant is proposing a front vard setback of 30.2 feet to allow for a front porch with two steps. thus reQuestilll:! a variance of 4.8 feet. The property is located at 23 Beechwood Circle and is identified as Tax Grid No. 6157-04- 678480 in the Town of Wappinger. '~ Present: Mr. Prager: Mrs. Roberti: Mr. Prager: Mr. Warren: Vote: Mr. Fanuele: Mr. Scherpf: Mr. Fanuele: Mr. Scherpf: Mr. Fanuele: .......... Richard Scherpf Joe Bellamy Are the mailings in order? Yes. Motion to open the adjourned public hearing. Second the motion. All present voted aye. Swore in the applicant. We would like to put a front porch onto our new house and originally it was staked out too far forward. So now we are here to get a variance to still be able to have the front porch. Do you need a variance for the whole length of the front porch? I believe the whole length of the front house. What is there now? Mr. Fanuele: ........ Mr. Bellamy: Mr. Prager: Mr. Bellamy: Mr. Prager: Mr. Scherpf: Mr. Fanuele: Mr. Prager: Mr. Warren: Vote: Mr. Prager: ........ Mr. Warren: Roll Call: Swore in Mr. Bellamy. The foundation and framing. I know that when we where out there at the site we talked about maybe doing away with one step to possibly make the variance a little less? Taking one step would only save 8 inches and we would rather not lose the step. So that is very minimum. So the house is ok and this is just for the porch? Yes. Is there anybody in the audience with a comment for or against this project. Hearing none. Motion to close the public hearing. Second the motion. All present voted aye. Motion to grant the variance. It is not a detrimental to nearby properties. It will not be undesirable, nor substantial at only 8% nor will it cause any environmental problems to the area. Second the motion. Ms. McEvoy-Riley Mr. Warren: Mr. Prager: Mr. DellaCorte: Mr. Fanuele: Aye. Aye. Aye. Aye. Aye. Appeal No. 05-7252 Gre2:2 & Vicki Barber -Seeking an area variance of Section 240-37 of District Regulations in an R-40/80 Zoning District. -Where a front yard setback of 50 feet is reQuired, the applicant is proposing a front yard setback of 26 feet to allow for a front porch. thus reQuestin2: a variance of 24 feet. The property is located at 43 Old State Road and is identified as Tax Grid No. 6057-04-745057 in the Town of Wappinger. Present: Mrs. Barber: '--" Vicki Barber I would like to replace my 60 year old porch that's there and just make it the width of the house. Mr. Fanuele: .......... Mrs. Barber: Mr. Prager: Mr. Barber: Mr. Warren: Mr. Fanuele: Mr. Prager: Mr. Warren: Vote: You want to expand the porch? No I want to knock it down and start over. Instead of just rebuilding it the size that it is we want to expand it the width of the house but not out further than it is now. The house was built in 1941 and all the adjoining houses have 6 acres like my lot. Your porch now is just the little piece and you want to extend its width, correct? Yes. Let's set a site inspection for March 5th. We will set your public hearing for March 15th and your site inspection for Saturday, the 5th. Motion to declare Lead Agency. Second the motion. All present voted aye. Appeal No. 04-7235 RJA Holdinl!. Inc. -Seeking an Interpretation following the determination of the Zoning Administrator, dated May 28, 2004 regarding Section 240-37 and Section 240-16 ( c) 3 and its applicability to the proposed use as a commercial development / Real Estate office. The property is located on 51 Mvers Corners Road and is identified as Tax Grid No. 6157-02- 899988 in the Town of Wappinger. '- Mr. Fanuele: Mr. Caviglia: We have had a public hearing and it was closed that evening. Tonight we will try to make a decision on this application. Before you get to that if Ms. McEvoy-Riley will be voting she will need to state on the record the information and material that she reviewed in order to be able to vote. Ms. McEvoy-Riley: I have reviewed the materials that were given to me by Corporate Counsel and Barbara Roberti and I am familiar with it. Mr. Caviglia: My suggestion then is that the list in front of you is read into the record. Mr. McEvoy-Riley: I have read and am familiar with the following documents: a. July 1 2,2004 consent for representation letter from RJA Holding Inc. b. July 12, 2004 application for interpretation ........ '- ......... ~ c. August 24,2004 supplement from Jon Adams, Esq. d. August 31 ,2004 letter from Richard Cantor, Esq. to the Zoning Administrator and Building Inspector. e. September 13, 2004 letter from Jon Adams, Esq. f. September 15, 2004 Letter from Richard Cantor, Esq. g. September 20, 2004 submission by Richard Cantor, Esq. h. A total of 16 photographs submitted by Richard Cantor, Esq. April 8, 2003 transcript of Public Hearing J. February 16, 1971 appeal no. 107 for interpretation by the Zoning Board of Appeals k. March 9, 1971 determination of appeal no. 107 by the Zoning Board of Appeals I. July 2, 1971 application for variance and determination by the Zoning Board of Appeals m. July 28, 1971 building permit n. October 29, 1971 certificate of occupancy o. July 27. 1972 building permit I have been to the location at 51 Myer Corners Road and I have read the transcript of the July 30, 2004 public hearing in this matter. Mr. Fanuele: We will first read the findings of facts. I understand the secretary will read them for the record. Mrs. Roberti: FINDINGS Based upon the information and evidence provided at the Public Hearing held on January 11, 2005, and historical information from the town records referenced at the hearing and documents submitted in support and opposition to the application, the Zoning Board of Appeals makes the following findings: 1. The subject property is located at 51 Myers Corners Road on a .26 acre parcel in an R-20 residential zone. In I 971, by appeal No. I 07, the prior owners obtained a determination by the Zoning Board of Appeals regarding the change in use of the subject property from a restaurant, a legally non-conforming use, to another legally non-conforming use as "an office machine sales and service business," being a less non-conforming use. This resolution was adopted March 9, 1971. On or about July 2, 1971, a variance was granted by the Zoning Board of Appeals to allow an expansion of the structure to allow for the provision of indoor toilet facilities. In connection with that, a building permit was issued on July 28, 1971 to erect an addition to a "legally non-conforming 2. 3. .""-- ~ '~ commercial building." On October 29, 1 971 .a certificate of occupancy was issued to the owner for its use as a "legally non-conforming commercial building." On July 27, 1972, another building permit was issued using the "legally non-conforming commercial building" language. 4. The property has been in continuous use since March 9,1971 for the "sales of office equipment and supplies" as its sole or principal use pursuant to a determination at that time that such was a legally non- conforming use. 5. By application of RJA Holding Inc., the current record owner of the subject property, an interpretation is sought to determine whether the use of the property for a construction business office and a real estate office are permitted uses of the premises or constitute a change of use. 6. Robert Macho is the President of RJA Holding Inc. 7. The building is being used as an office for a construction business and a real estate office. 8. In addition to the main building, the premises also has two storage structures behind the main building which are used for storing both maintenance equipment and kitchen cabinets. 9. For certain periods of the month, kitchen cabinets, used in the construction of residential homes, are stored on the premises awaiting delivery to another location on at least a weekly basis. A tractor trailer delivers the kitchen cabinets periodically to the subject premises, which are then delivered by a box truck elsewhere, and which box truck is apparently kept on the premises. 10. A violation on the part of the applicant existed during the pendency of this application alleging the unlawful building or repair of the subject premises without a permit pursuant to the Town of Wappinger Code section 122-9 which has since been resolved by due process of law. 11. NYCRR Section 617.5 (c) (31) [SEQRA], defining Type II actions, specifically excludes "interpreting an existing code, rule or regulation" from environmental review, nor does any segmentation exist of the environmental review process. Mr. Prager: I'd like to make a motion that the board agrees with the determination of the Zoning Administrator that the present use of the building at 51 Myer Corners Road is a new non-conforming use and is a not permitted use. Mr. DellaCorte: Second the motion. DECISION 2. This Board is of the opinion that the use of the premises for a construction business office and real estate office, and the storage of kitchen cabinets constitutes a new nonconforming use from that which originally existed since 1971. The determination that the change from a restaurant to "an office machine ......... ........ ........ 3. sales and service business" as a less non-conforming use does not contemplate the current uses. The issuance of two building permits and a certificate of occupancy shortly after the 1971 determination, and all issued no later than 1972, did not enlarge or diminish the legal nonconforming use simply because language was used by a particular department to describe the building as "commercial." No broad use for all commercial purposes was ever granted as a prior variance or determination by the Zoning Board of Appeals. Offices for the sale of real estate and for a construction business are significantly different from the sales of office machines or servicing of such machines in this situation. The premises are being used more closely as professional offices. The sales of land and construction services performed elsewhere are not analogous to retail sales. Simply because the prior and current uses involve "sales" does not mean that they are all qualitatively the same, although all commerce involves buying and selling. In addition, there is a significant amount of storage taking place in connection with the kitchen cabinets used for the construction company's residential construction business. The Town of Wappinger Code also reflects the qualitative differences in its Schedule of Use Regulations which, under schedule 240 Attachment 2, separately categorizes "Office," "Retail," and "Warehouse and Storage." Section 240-5 includes a definition of "Professional Office .to include one used by a real estate broker or salesman. The schedule of uses includes professional offices. Under the schedule, retail includes stores and shops for the conduct of retail business. There is a distinguishable change in use between the current occupants and the prior occupants of the property. In addition, storage by contractors is addressed as a warehouse use, also separate from the other stated uses. The property in question is regularly used for storage of kitchen cabinets on a weekly basis. With regard to the dimensions of the subject property being substandard, testimony revealed that the subject property, while owned by RJA Holding Inc., borders upon property owned by Tree Line Builders, so it does not appear that the properties are owned by the same record owner. However, even if it were, this objection is not relevant for our purposes here, which in any case would be addressed by section 240-1 8 of the Town Code, requiring the same owner of the subject property and the contiguous lot owned to combine them as necessary to form a conforming lot of the subject property, and such is not a condition precedent in issuing our interpretation. The existence of a building code violation did not preclude the Zoning Board of Appeals from hearing this appeal. Section 240-1 2 of the Town Code precludes a permit of any type to be issued, processed, or approved by the Town until such violation is cleared and removed to the satisfaction 4. 5. 6. 7. 8. 9. of the appropriate Town agency or resolved by due legal process. However, the issue before this board is one of providing an interpretation, not the granting of a permit or an approval as contemplated by section 240-12, so there is no conflict concerning the rendering of this determination with this section of the code. In addition, that violation has been addressed and concluded by due process of law. This Board determines that the use of the premises as a construction sales office and real estate office, and the storage of kitchen cabinets upon the property is not a continuation of the nonconforming permitted use of the building. ......... THEREFORE, BE IT RESOLVED, that it is the determination of the Town of Wappinger Zoning Board of Appeals that the current use of the present uses of the property is not a continuation of the prior legal nonconforming use and is not permitted. Appeal No. 04-7235 is hereby denied, and the decision of the Zoning Administrator, dated May 28, 2004, for the reasons stated herein, is affirmed. The question of the adoption of the foregoing Decision was duly put to a vote on roll call, which resulted as follows: Victor Fanuele, Chairman voting Nay Howard Prager, Member voting Aye ........ Douglas Warren, Member voting ~ Thomas DellaCorte, Member voting Aye Jennifer McEvoy-Riley, Member voting ~ Mr. Fanuele: I would like to thank Barbara for reading that nice and clear. Does anybody have anything else tonight. Since there is nothing else I'd like to make a motion to adjourn. So moved. Second the motion. All present voted aye. Mr. Prager: Mr. Warren: Vote: Meeting ended at 8:30 PM Respe~tfully submitte;//) I /l1a / JtU?l- LA! I--ii:Y3 Bar~fuR;;b~rti, Secretary Secretary - Zoning Board of Appeals ~