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2005-01-25 ZONING BOARD OF APPEALS January 25,2005 ......... Agenda Town of Wappinger Zoning Board of Appeals MEETING DATE: January 25, 2005 TIME: 7:30 PM Town Hall 20 Middlebush Road Wappinger Falls, NY Approve minutes for December 14, 2004. Public Hearing: ........ Appeal No. 04-7250 Baislev/Van Benschoten Site Plan- Seeking an area variance of Section 240-37 of District Regulations in an A-I Zoning District. - Where a front yard setback of 100 feet is required, the applicant is proposing a front yard setback of 84.1 feet to allow for a buildine on lot 1, thus reQuestine a variance of 15.9 feet. -Where a front yard setback of 100 feet is required, the applicant is proposing a front yard setback of 86.9 feet to allow for a buildine on lot 2, thus reQuestine a variance of 13.1 feet. The property is located at 110 Airport Drive and is identified as Tax Grid No. 6258-02- 654522 in the Town of Wappinger. Discussions: 00-7068-04 Gasland Petroleum Co. - To revisit application of Real Holding Corp. The property is located on Route 9 & Old Hopewell Road and is identified as Tax Grid No. 6157-02- 610544 in the Town of Wappinger. 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 reQuestine 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. .....,., Discussion/or second meeting in February. Change November 8, 2005 to November 9, 2005 due to Election Day. Town of Wappinger Zoning Board of Appeals Page 1 ......... MINUTES Minutes of January 25,2005 MINUTES APPROVED ~n. '? 0 I) 2nn5 ' ". ~,.." .......:J Town of Wappinger . Zoning Board of Appeals .January 25, 2005 Town Hall 20 Middlebush Road Wappinger Falls, NY Summarized Minutes Members Present: Mr. Fanuele, Mr. Warren, Mr. DellaCorte, Mr. Prager, Chairman Member Member V ice-Chairman Others Present: Mrs. Lukianoff, Zoning Administrator Mrs. Roberti, Secretary SUMMARY ......... Public Hearin2: Baisley/Van Benschoten -Granted two variances Discussion: ~. Gasland -Public Hearing on March 1, 2005 Richard Scherpf -Public Hearing on February 8, 2005 '-'" Town of Wappinger Zoning Board of Appeals '- Mr. Warren: Mr. DellaCorte: Vote: Page 2 Minutes of January 25,2005 Motion to approve Minutes for December 14, 2004. Second the motion. All present voted aye. Appeal No. 04-7250 BaisleyN an Benschoten Site Plan- Seeking an area variance of Section 240-37 of District Regulations in an A-I Zoning District. - Where a front yard setback of 100 feet is required, the applicant is proposing a front yard setback of 84.1 feet to allow for a buildin2 on lot 1. thus reQuestin2 a variance of 15.9 feet. - Where a front yard setback of 100 feet is required, the applicant is proposing a front yard setback of 86.9 feet to allow for a buildin2 on lot 2. thus reQuestin2 a variance of 13.1 feet. The property is located at 110 Airport Drive and is identified as Tax Grid No. 6258-02- 654522 in the Town of Wappinger. Present: ......... Mr. Prager: Mr. Warren: Vote: Mr. Fanuele: Mr. Stokosa: '" Mr. Fanuele: Mr. Stokosa: Mr. Fanuele: Mr. Stokosa: Mr. Prager: .'-'" Brian Stokosa Oswald & Gillespie Motion to open the public hearing. Second the motion. All present voted aye. Swore in the applicant Gave overview for the public. Our clients are looking to subdivide this parcel into two and erect two buildings on this 8.14 acre piece. Each building would be 11,250 sf in an AI zone. The buffer line has been signed offby Mr. Clancy of the DEe. They would like the buildings to move forward for less disturbance to the buffer of the wetland. This is now one piece of property? Yes, it is in the process of being subdivided. Is this the minimum amount you need not to disturb the wetlands? Yes it's the minimum but we are not disturbing the wetland it would be the buffer. For the record we received a recommendation from the planning board in favor of this. Town of Wappinger Zoning Board of Appeals "-' Mr. Fanuele: Mr. Prager: Mr. Warren: Vote: Mr. Prager: Mr. DellaCorte: Roll Call: Page 3 Minutes of January 25,2005 Is there anyone in the audience with a question or comment? Hearing none. Motion to close the public hearing. Second the motion. All present voted aye. Motion to grant the variances. Second the motion. Mr. Warren: Aye. Mr. Prager: Aye. Mr. DellaCorte: Aye. Mr. Fanuele: 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 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 reQuestin2" 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. Bellamy: Mr. Fanuele: ~. Mr. Bellamy: Mr. Fanuele: Mr. Bellamy: Mr. Prager: Mr. Bellamy: Mr. Warren: ........ Richard Scherpf Joe Bellamy We built the foundation on this new house in the proposed area where it was staked out. The front porch was not noted at the time it was surveyed and that's why we are infringing on it. Is the front porch the full width of the house? Yes. The porch won't interfere with anything on Beechwood? No. Is anything up now? Just the foundation. What is the width of the house? Page 4 Town of Wappinger Zoning Board of Appeals ~ Mr. Bellamy: Mr. Fanuele: Mr. Prager: Mr. Warren: Vote: Minutes of January 25,2005 5 feet by 38 feet. A site visit seems unnecessary with all the snow out there. We will set a public hearing for February 8, 2005. Motion to be lead agency. Second the motion. All present voted aye. 00-7068-04 Gasland Petroleum Co. - To revisit application of Real Holding Corp. The property is located on Route 9 & Old Hopewell Road and is identified as Tax Grid No. 6157-02- 610544 in the Town of Wappinger. Present: Mr. Siebert: '-" s. '-" Judson Siebert - Keane & Beane Vincent Cappelletti - Owner Gave overview of the project for the board. This is about a Y2 acre parcel that Texaco developed in the 60's. This is what this was used for, for approximately 25 years or more. In the early 90's contamination was discovered to the north on the 7/11 property. The DEC also then found some on the subject property and there was environmental remediation required. The gas station use ceased around 1992. My client Real Holding Corp and Mr. Cappelletti is the principal of that corp., purchased the property then in 1992. He remediated the property up to DEC standards and the DEC has indicated there is no further action required on this site. He has tried to develop this property for 12 years and has paid taxes on this property. He has tried to find another use for the property as well as restore it to a gasoline filling station. The over arching issue with this property is that it is uniquely suited for this purpose, given its size, location and history. Other uses would be a problem since this has neither water nor sewer. In 2000 we made an application to the planning board for a gas station, SUP. The planning board denied it because the SUP has two criteria attached which are: 1. A gas station cannot be within 1000 feet of a residence. 2. A gas station cannot be within 2500 feet of another gas station. The 7/11 is across the street. We would need a variance for those to standards. Following the planning board denial in August 2000 we came before the ZBA to request the area variances. The ZBA voted to take the application because they had in fact in the mid 90's heard a similar application and denied it on the grounds it didn't have authority to grant relief from Special Permit requirements. Our position was when we returned in 2000 was that the law had changed. That there was case law and a change in the Town Law that would allow and empower the ZBA to grant area variance relief from dimensional Town of Wappinger Zoning Board of Appeals Page 5 Minutes of January 25,2005 'l< standards attached to a special permit. We were before the board throughout the fall of2000 and into the early 2001. In March of2001 you declared yourself Lead Agency under SEQRA. In May of2001 Mr. Roberts then counsel to the board, requested clarification with respect to the issue of whether the board could grant the area variance relief from the two dimensional standards attached to this special permit. We submitted a letter on the eve of a public hearing in June of2001. Mr. Roberts countered with an opinion in which he concluded that the board could not. The ZBA adopted Mr. Roberts opinion and denied the application on a threshold, not on the merits of the application but simply on the basis that you didn't under state law have the power to vary dimensional standards attached to a special permit. We brought an Article 78 and in February of2002 the Supreme Court in Westchester County where the case was heard by Justice Francis Nicholi, issued a decision in which he annulled the ZBA' s determination, finding that in fact under the town law provision, Section 274-B-3 of the NYS Town Law, you are empowered to grant this type of relief. That ordered remitted the application back to this board to process the application and pick up where you left off, which was at the public hearing stage. The town appealed that decision to the Appellate Division, Second Department and with that appeal, it was stayed and we could not come back because it was frozen at that point. In April of 2003 the Appellate Division, Second Department affirmed Judge Nicholi's decision again finding that the board has the authority to grant this relief. In affirming that decision obviously the order stands that it's remitted to this board for processing. The town moved for permission to appeal that decision to the Court of Appeals in Albany which granted that motion and as a result the Court of Appeals heard this case in March of 2004 and issued a decision in May of 2004 in which it affirmed the two lower courts. It concluded that under this provision of town law, a zoning board has the authority to hear an area variance application even if the dimensional requirement at issue is a special permit requirement. So again the highest court in the state has affirmed the Supreme Court and has returned the application to this board with a clear expression of state law that this board has the authority to grant the relief we are seeking. That is why we are back. There has been an interval between the time frame that the Court of Appeals ruled and tonight and quite frankly before coming back to this board, Mr. Cappelletti approached the town administration just too once again see if there was any relief that could be done at a legislative level. I don't think anything is in the offering at that respect but it just seems to make sense to us that we have a court order remitting the application. We do think we satisfy the standards '-' .~ .......... Page 6 Town of Wappinger Zoning Board of Appeals ....... Mr. Fanuele: Mr. Siebert: '-'" ",. Mr. Cappelletti: ........ Minutes of January 25, 2005 for area variance relief, in fact while it's not a use variance application we think it almost surpasses the hurdle for a use variance. The property is so unique and given it's history and it's layout and location, this is the use for which this lot was created in the first instance and we request that the board basically pick up and dust off the file and we will help you do that and pick up where we left offin June of 200 1, which is to prepare and schedule a public hearing and to give us an opportunity to present our case for an area variance relief from those two standards. Are these the only two standards that you are looking for? Yes. What we would like to do is schedule a public hearing and we will be getting you a revised plan so that it is updated. There was a report that this board requested back in 2001. There was a concern that the board expressed about the presidential impact if this relief was granted for this particular property. In other words, if you were to grant relief for this particular property would you than be faced with a rash of other properties within the town coming to you saying, you gave it to them we are in the same situation. We had a report prepared by Neil Wilson of Land Resource Consultants, which is both a planning and engineering firm and he will be here at the public hearing. I would ask you to look back at the report from 2001 that he tendered. He will update that report by way of a letter to this board before the public hearing just supplementing his findings at that time. He canvassed the town and divided the town into three geographical sections and he looked at whether there were other similar properties that could latch onto particular characteristics of this property to make an argument for variance relief and his conclusion is that this is unique. For example, his report references that there are a couple of DB Mart and Stewart Shops for example, the report talks about how those properties are markedly different than this one. First of all those are all up and running, there is an economic benefit from those operations. Here we have a property that has been laying barren and unused simple because of the difficulty of getting a use that fits and it is our position that the gas station fits. In terms of the impacts to the neighborhood, which is really the key analysis of the area variance relief, we are prepared to develop the property to an aesthetic standard which we believe will compliment the Route 9 area. We believe it will be an improvement over other similar type uses you find as you go up Route 9. Most of all it is going to improve what is there now. He's paid taxes on this property for over 12 years. I did the clean up on the property and I do have a letter from the DEC stating that all the mediation has been done. I'm probably the only property in Wappinger that has a letter saying everything has been Page 7 Town of Wappinger Zoning Board of Appeals "-" .......... Mr. Fanuele: Mr. Cappelletti: ~- Mr. Fanuele: Mr. Cappelletti: Mr. Prager: '-'" Minutes of January 25,2005 done. The only other use we could have used it for was a used car lot and then they changed the zoning on that to five acres. I got skunked right in that transition from one acre to five acres. I'm a developer, this is what I do. I will lease it to a company that will give me enough money so that I can put up a brand new facility. We have tried many other uses but there is no water and sewer there. I'm sorry I stopped the use of the former gas station. It doesn't please me to see that property look like that. I went to the Town Board just two months ago and asked them ifthere was a good reason why this shouldn't be a gas station, I could live with that. But no one has a reason to give me. I don't want a use variance just an area variance. There is just nothing else I can do with this property, I've tried. This area is good for a gas station, it was one for twenty five years. It's not going to change traffic patterns or increase traffic. The only thing it will be is a convenience for people. The people going up Old Hopewell will be stopping to get their milk and gas and then going home. So we are back to you for relief. I believe the 2500 feet came up years ago for side by side gas stations so if one had a fire it could not spread to the other but we are on different comers. Our planning did a study ofthe town and only came up with only one other site that was comparable to this site and it turned out to belong to me, Hometown Motors on Route 376. I've had that rented since 1983. When I came back to you last time, just three days before my public hearing your Town Attorney came up with his opinion which forced me to an Article 78 just to have it heard. It didn't say you had to approve it but at least hear it. We can't understand why you have fought this all the way to the highest court in the state just not to hear this. I'm paying $8,000.00 a year in taxes and a gas station would be paying about $25,000.00 a year in taxes plus employing 7 or 8 people and also paying a piece of their sales. If there is a good reason if you say no, than fine but put it on paper for me. You want a gas station and a fast food store? No, just a gas station and a convenience store. No repairs? No. All the curb cuts are already there, it's zoned HB and right now it is a run down shack. I realize the size of the variances are large but I want a chance to show its value. At the last public hearing, no one even showed up against it. Anyone who lives up Old Hopewell, I think this would be very positive. Mr. Siebert, you'll have a new site plan? Page 8 Town of Wappinger Zoning Board of Appeals Mr. Siebert: "'" Mr. Prager: Mr. Siebert: Mr. Prager: Mr. Cappelletti: Mr. Fanuele: Mr. Siebert: Mr. Fanuele: Mr. Siebert: "'" Mr. DellaCorte: Mr. Cappelletti: Mr. DellaCorte: Mr.~iebert: Mr. Prager: Mr. DellaCorte: Mr. Cappelletti: Mr. Warren: .......... Minutes of January 25,2005 Yes what we intend to do is that it is basically the one you have on file just with a fresher date. You're going to get us the Wilson report? Yes, you have the original and that will be updated in the form of a letter. Mr. Cappelletti you mention the number of people that have actually looked at the property and you have dealt with. Will you get some documentation together of those people that you spoke with? Mostly the inquires were through real estate. When will the updated site plans be ready? Probably by the 22nd of February. The next meeting is the 1 st of March. Did you present this to the planning board? If you grant this then we would go to the planning board. We only were before them for all of two minutes because they knew we had to have a variance first. These may be planning board issues but have you developed other properties in Wappinger? No, in East Fishkill. I did the catering hall on the comer of Route 376 and 17. I did a lot of work in Mahopac and Newburgh. You said no one came to the meetings before but that would be something that we would have to take into consideration. But there has to be substance. Just because people come out and say they don't like it, it isn't dis-positive. Barbara make sure the DOT and the DC Planning Office gets a copy of this. In regards to the traffic patterns, is all your egress on Route 9? No we also have an exit onto Old Hopewell. The DOT re-did our entrances and exits. Will this be a 24/7 operation? Page 9 Town of Wappinger Zoning Board of Appeals ...... Mr. Cappelletti: Mr. Prager: Mr. Fanuele: Mr. Siebert: Mr. Prager: Mr. Warren: Vote: ......... Mr. Warren: Mr. DellaCorte: Vote: Mr. Prager: Mr. DellaCorte: Vote: Minutes of January 25,2005 I'm really not sure at this time. Also send this to the Fire Prevention Bureau. We will set your public hearing for March 1,2005. Ifwe give you a variance for the 2500 feet and you then go to the planning board they may have other questions and you may have to come back based on the layout. Yes. Thank you. Since the Association of Towns is on February 22, a normal night, I make a motion to change February 22 to March 1st with the following changes in March to be the 15th and the 29th. Also since November 8 is Election Day we will change that to Wednesday, November 9th, 2005. Second the motion. All present voted aye. Motion that Howard Prager be re-appointed to Vice-Chairman. Second the motion. All present voted aye. Motion to adjourn. Second the motion. All present voted aye. Meeting ended at 9:00 PM ~ ......... Respectfully SUbmittwed' r ;:~... // . ~\ ~ (;tkUC.../ ~~'tD ~ a Roberti, Secretary Secretary - Zoning Board of Appeals