2006-03-28
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Agenda
Town of Wappinger Zoning Board of Appeals
MEETING DATE: March 28, 2006
TIME: 7:30 PM
Town Hall
20 Middlebush Road
Wappinger Falls, NY
Approve minutes for February 14, 2006.
Adjourned/Public Hearing:
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Appeal No. 05-7289-7290-7291-7292
228 Mvers Corners. LLC
_ Seeking an Interpretation of the Zoning Administrator's letter of determination dated
December 6,2005 for the currently proposed uses ofthe NB portion of the site.
_ Seeking an area variance of Section 240-37 of District Regulations in an NB Zoning
District. '
_ Where a side yard setback of 20 feet is required, the applicant is proposing a side yard
setback of 13.6 feet to allow for an existine: metal shed. thus reQuestine: a variance of
6.4 feet.
_ Seeking an area variance of Section 240-37 & 240-67 A of District Regulations in an NB
Zoning District.
_ Where a lot size of 3 acres is required for motor vehicle use in buildine: # 1, the
applicant is proposing a total lot size of 3.6 acres. thus reQuestine: a combined variance
of 3.4 acres.
_ Seeking an area variance of Section 240-70. A of District Regulations in an NB Zoning
District.
_ Where a lot size of 2 acres is required for a proposed use in buildine: # 3, the applicant
is proposing a total lot size of 3.6 acres. thus reQuestine: a combined variance of 3.4
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The property is .located at 228 Mvers Corners Road and is identified as Tax Grid No.
6258-02-702520 in the Town of Wappinger.
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Town ofWappmger
Zoning Board of Appeals
MINUTES
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Town of Wappinger
Zoning Board of Appeals
March 28, 2006
Summarized Minutes
Members Present:
Mr. Prager,
Mr. DellaCorte,
Mr. Warren,
Ms. McEvoy-Riley
Member Absent:
Mr. Fanuele,
Others Present:
Mr. Caviglia,
Mrs. Lukianoff,
Mrs. Roberti,
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Minutes of March 28, 2006
Town Hall
20 Middlebush Road
Wappinger Falls, NY
V ice-Chairman
Member
Member
Member
Chairman
Special Counsel
Zoning Administrator
Secretary
SUMMARY
Adiourned Public Hearin2:
228 Myers Comers Road
-Adjourned to April 25, 2006.
Mr. Warren:
Mr. DellaCorte:
Vote:
Motion to approve the Minutes for February 14,2006.
Second the motion.
All present voted aye.
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To~vn of Wappinger
Zoning Board of Appeals
Page 2
Minutes of March 28, 2006
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Appeal No. 05-7289-7290-7291-7292
228 Myers Corners. LLC
- Seeking an Interpretation of the Zoning Administrator's letter of determination dated
December 6,2005 for the currently proposed uses of the NB portion of the site.
- Seeking an area variance of Section 240-37 of District Regulations in an NB Zoning
District.
- Where a side yard setback of 20 feet is required, the applicant is proposing a side
yard setback of 13.6 feet to allow for an existine metal shed. thus reQuestine a
variance of 6.4 feet.
- Seeking an area variance of Section 240-37 & 240-67 A of District Regulations in an
NB Zoning District.
- Where a lot size of 3 acres is reQuired for motor vehicle use in buildine # 1, the
applicant is proposing a total lot size of 3.6 acres. thus reQuestine a combined
variance of 3.4 acres.
- Seeking an area variance of Section 240-70. A of District Regulations in an NB Zoning
District.
- Where a lot size of 2 acres is reQuired for a proposed use in buildine # 3, the
applicant is proposing a total lot size of 3.6 acres. thus reQuestine a combined
variance of 3.4 acres.
The property is located at 228 Myers Corners Road and is identified as Tax Grid No.
6258-02-702520 in the Town of Wappinger.
Present:
Mark Fry - For the applicant
Mr. Borack - Owner
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Ms. McEvoy-Riley:
Mr. DellaCorte:
Vote:
Motion to open the adjourned Public Hearing.
Second the motion.
All present voted aye.
Please see attached transcript.
Mr. DellaCorte:
Mr. Warren:
Vote:
Motion to adjourn.
Second the motion.
All present voted aye.
Meeting ended at 9:45 PM
Respectf~llY Submitt~.
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Barbara R64rti, Secretary
Secretary - Zoning Board of Appeals
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03-28-06 wappingers1
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TOWN OF WAPPINGERS
ZONING BOARD OF APPEALS
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Appeal NO. 05-7289-7290-7291-7292-7293
228 Myers corners, LLC
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HELD AT:
March 28, 2006
7:40 p.m.
BEFORE:
J. MCEvoy-Riley
Douglas Warren
J. Howard prager
Tom Dellacorte
ALSO PRESENT:
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Marco caviglia, special counsel
Bill parsons
Frank simeone,
Counsel to Bill Parsons
J & L REPORTING SERVICE
of westchester, Inc.
200 East Post Road
white plains, New York 10601
(914) 682-1888
Joseph S. Jacoby, Reporter
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MR. PRAGER: call the Town of
wappinger zoning Board of Appeals to
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order. First item of business on the
agenda tonight. we have a transcript
from February 28. Has everybody read
that? Everybody had a chance to look
it over?
MR. WARREN: Not the whole
thing.
MR. DELLACORTE: .Yes.
MS. McEVOY-RILEY: Yes.
MR. PRAGER: You want to put
these off? Did you get a chance to
read them? A motion to accept them
or put them off.
MR. DELLACORTE: Make a motion
to accept the minutes for February
28, 2006.
MR. PRAGER: could I have a
second?
MS. McEVOY-RILEY: Second.
MR. PRAGER: All in favor?
opposed?
So carried.
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Next item on tonight's agenda,
an adjourned public hearing on appeal
number 05-7289-7290-7291-7292,
dealing with 228 Myers Corners, LLC,
seeking an interpretation of zoning
Administrator's letter of the
determination dated December 6, 2005
Page 2
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for the currently proposed uses of
the NB portion of the site.
seeking an area variance of
section 240-37 of District
Regulations in an NB zoning District.
where a side yard setback of 20
feet is required, the applicant is
proposing a side yard setback of
thirteen point six feet to allow for
an existing metal shed, thus
requesting a variance of 6.4 feet.
seeking an area variance of
section 240-37 and 240-67 A of
District Regulations in an NB zoning
District.
where a lot 3 acres is requ~red
for motor vehicle use in building #1,
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the applicant is proposing a total
lot size of 3.6 acres, thus
requesting a combined variance of 3.4
acres.
seeking an area variance of
section 240-70. A of District
Regulation in an NB zoning District.
where a lot size of 2 acres is
required for a proposed use of
building #3, the applicant is
proposing a total lot size of 3.6,
thus requesting a combined variance
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03-28-06 wappingers1
14 of 3.4 acres.
....... 15 seeking an area variance of
16 section 240-70. A of Di stri ct
17 Regulations in an NB zoning District.
18 where lot size of 2 acres is
19 required for the proposed use in
20 building #2, the applicant is
21 proposing a total lot size of 3.6
22 acres, thus requesting combined
23 variance of 3.4 acres.
24 The property is located 228
25 Myers Corners Road and is identified
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as Tax Grid NO. 6258-02-702520 in the
Town of wappinger.
could I have a motion to reopen
the public hearing?
MS. MCEVOY-RILEY: Moved.
MR. PRAGER: Second?
MR. DELLACORTE: Second.
MR. PRAGER: All in favor?
So carried.
I guess I'll turn this meeting
over to you Mr. Warren, if you'd like
to take over.
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MR. WARREN: Mr. Fry?
MR. FRY: Good evening. For
the record, my name is Mark Fry. I'm
with Main Street consulting. I'm
representing Mr. Borek of Development
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Strategies. Don walsh is, you may
know, is recovering from surgery, is
not here tonight. I've had an
opportunity to sit down with Don with
my work constantly, go through the
entire file on this matter, which is
extensive. I've had an opportunity
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to review all of the transcripts. I
received them by email a couple of
days ago. r've gotten pretty much up
to speed.
I prepared a presentation
tonight. This is an excerpt of the
paper that you already have, the
first page from the SEQRA Act that
modified some of your laws back in
2001.
MS. MCEVOY-RILEY: Can I
interrupt for you for a second?
Is there some sort of letter
you can show us that you're
representing the owner?
MR. FRY: The owner is here.
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MS. MCEVOY-RILEY: Never mind.
I don't need the letter.
MR. BOREK: r'm one of the
principles of 228 Myers Corners, LLC.
It's a company that owns the property
228 Myers.
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MR. FRY: Mlke schwartz. He's
a prospective tenant for building
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number two.
In reviewing this entire case,
it has become a little bit of a
moving target. Let me tell you how
that comes to pass.
when we first went to the Town
we got a copy of the zoning code, but
it turns out the copy of the zoning
codes we receive9 in the summer of
2004 did not include the revisions
that were performed in 2001.
After we received the copy of
the January 2005 edition of the code,
we realized there had been
substantial changes in the ordinances
that you have in front of you.
specifically I'm talking about
chapter 240, Section 67 and chapter
240, section 70. Those two sections
refer to motor vehicle sales and
motor vehicle repairs. 67 deals with
motor vehicle sales, motor vehicle
sales is not a permitted use in the
NB neighborhood business zone, except
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for those facilities that are already
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grandfathered in with that use.
Motor vehicle repairs is a permitted
-- is a special permit use with one
exception, the exception is on the
paper you have in front of you, under
chapter 240, Section 70, paragraph I,
small motor vehicle sales are
. permitted as a principle permitted
use, and when I say small motor
vehicles, I mean motorcycles, jet
.skis and go carts, that is permitted
.in the motor vehicle repair section
of the code.
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Now, there are three buildings
on the site, and we have the one in
front where the used car sales had
gone on for some time is labeled as
Building Number 1. I think you have
copies of the site plan. The next
building, the one in the middle, is
Building Number 2, that's where we
propose to have a motorcycle sales
and possibly repair shop. Building
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2 Number 3, the rear, the large garage,
3 is the automotive repair garage
4 that's been there for a long, long
5 time.
6 In reviewing the -- the reason
7 we asked for variances, or in the
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first instance the interpretation of
the zoning Administrator's letter was
we feel that Building number 1 and
Building Number 3 are clearly
grandfathered in the uses. In
Building Number 1 and 3 have
continued from 1968 until the present
uninterrupted. They have.always been
automotive related uses ~ith some
exceptions we'll get into.
MS. MCEVOY-RILEY: Can I
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interrupt?
MR. FRY: rhave a prepared
presentation. Building Number 2, on
the other hand, while it was used as
a paint shop for painting automobiles
related to the used car sales, been
used as detailing and so forth, that
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use was converted to a cabinet making
shop still using the same paint spray
facility, same filter system and so
forth. Instead of working with
metal, they were working with wood.
Building Number 1 and 3 became a
contractor's yard. They continued to
use Building Number 3 as an
automotive repair facility. They
used it for trucks, bulldozers and so
forth. Building 3 continued in use
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as an automotive repair facility.
when Mr. Borek cooperated with the
IRS, that's where they prepared all
the vehicles, I understood it was
somewhere on the order of forty for
sale in Building Number 3. Has it
ever been used for motorcycles? NO,
sir, not to. my.knowledge.. It's been
used for cars, trucks and
construction equipment for repairs.
As you're aware, this is a photograph
that's also. been submitted, it shows
that this is.the property in
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question. I'll try to turn around so
everyone can see this. The part of
this property, the front two-thirds
of it is in the NB neighborhood
zoning. The rear part is in the R-40
residential zone. This is the way
the property looked when Mr. Borek
bought it. At that time there was
all kinds of construction debris and
so forth. Mr. Borek has done a
yoman's job. All of you have had a
chance to visit the property,
removing everything you see in the
photograph outside of these
buildings. He's cleaned it up.
Eighty thousand dollars in dumping
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fees, three hundred fifty thousand
dollars total to clean this up. He
did that on a voluntary basis. He
owns and maintains substantial
commercial properties and he is
fastidious as a businessman and as a
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landlord. That's been done.
We have no proposal whatsoever
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for the R-40 residential portion of
this property. We intend to continue
the uses in Buildings 1 and 3. It is
our position, because they 'are
. continuing preexisting non conforming
uses, that those uses can be
continued without the necessity of a
special use permit.
Building Number 2, however, is
where Mike schwartz wants to start a
whole new ball game, so to speak, ln
terms of a motorcycle sales and/or
repair facility, and that's what
we're interested in seeking your
approval for.
AS you look at that section
chapter 240 Section 70 paragraph I,
you'll see that, first of all,
motorcycle sales are a permitted use.
secondly, you'll see that
motorcycle sales are to be regulated
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as a retail use, which seems a little
unusual, that was what your Town
Board decided on back in 2001.
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Thirdly you'll finq that it
exempts motorcycle, go carts, jet ski
sales from any area requirement. so,
based on that code, the motorcycle
sales facility can be on zero point
zero acres, no area requirement.
NOW, with existing properties
it. happens all the time, you have
situations like this where there are
three buildings on three and a half
acres of property. I don't know if
it would be reasonable for us to say
we'll devote zero acres to this and
split the other 3.6 acres 50/50 among
the others. That's something we want
to work out with the board and
something that's reasonable and with
the Town Planner.
This afternoon talking with Mr.
caviglia, he suggested it might be
helpful if a member of your
professional Town planning staff,
your consultant from Frederick P.
clark, would offer us some advice in
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this matter. For us to do so, we
would have to take care of those fees
and we have been asked to put the
first payment into escrow in the
amount of three thousand seven
hundred fifty dollars. We would
agree to do that in order to get only
some guidance in the best way to make
what seems to be a complicated
?ituation, see the best way of
handling this for the benefit of the
applicant, the benefit of the
neighbors certainly and to the
benefit of the board.
so, that's the approach we want
to take. That may change the nature
of some of the variances we have
requested. In fact, we have made the
change at the February 28 meeting,
it's reflected that we're dropping
the variance for the two lot in --
that's the variance for Building
Number 2, we don't need two acres, we
don't need the variance to get the
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two acres. That's been removed from
the agenda. Let me get my copy of
that. I brought along a list of the
variances.
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03-28-06 Wappingersl
Now, the total combined
variance request, if we make no other
changes, there may be other ways, a
number of other ways to deal with
this, would be a combined variance of
one point four acres. We need three
acres here and two acres there. We
need five acres. We have only got
3.6. Then we need one point four, a
variance of one point four acres,
that substantially reduces the
percentage variance. In these
situations where you have a long
standing preexisting non conforming
us~, we need to come up to a
reasonable solution that doesn't set
any dangerous precedence for the Town
of wappinger, but respect the rights
of the neighbors, the applicant and
the Town.
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There were some specific
responses I had. First of all, in
terms of the minutes of the three
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meetings, I've gone through and made
some corrections in transcripts. I
would like an opportunity to submit
those changes. Most of them
typographical, some syntax errors, to
the board for your approval. with
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your approval they can be forwarded
to J&L, they can then correct the
record.
As to the substantive points, I
went through all one hundred fifty
pages over the weekend very carefully
and certainly had some responses to
some of the comments made by .the
.concerned members of the public, but
rather than going point for point on
those items, you have in front of you
tonight a letter from Mr. simeone,
'representing Mr. Parsons, you have
another letter from Mr. John Adams
representing Mr. simonetti. We'll
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also put in essentially that form
some comments as to the legal frame
work around this issue. At the same
time, though, I'm a firm believer
that if we want to be good neighbors
certainly we want to have attractive
uses there. We put our money where
our mouth is. I don't think a lot of
people come into Town spending
hundreds of thousands of dollars
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cleaning up the site without having
some sort of legal gun to their head.
We have tried to show our good faith.
I can certainly tell you in relation
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to Mr. Borek, he's an extraordinarily
sensitive landlord, sensitive to the
needs of the Town. We own a similar
property in sleepy Hollow. When we
found, when the village, municipal
village director mentioned to me a
phone call on another matter, I
walked by there, the Mccarthy garage,
one of the taxi g~ys is painting his
car, he doesn't have what we have in
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Build~ng Number 2, he doesn't have a
sprai booth or a wet wall set up.
That would be a violation. I called
Mr. Borek, he said I'll have my
secretary type a letter. I picked it
up in white plains. within less than
an hour the tenant was notified in
writing they needed to lose the paint
or lose the premises. It was taken
care of very quickly. Any Town is
happy to have responsive landlords if
there's any kind of a problem, we
certainly don't want problems, that
responds very quickly to any
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concerns.
In terms of the primary concern
that seems to have been expressed,
people are concerned that these
motorcycles might make noise. Some
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motorcycles do, some motorcycles
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23 not only chapter 240, the zoning
24 chapter section, I found chapter 166
25 dealing with noise. In chapter 166
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it imposes fines of minimum of one
hundred dollars, maximum of two
hundred .fi fty dollars, for any noi se
in'a residential zone. It also has
very specific provisions in chapter
166 relating to the hours, between
the hours of seven -- I'm reading
chapter 166, paragraph D, between the
hours of seven p.m. and eight a.m.,
mini bikes, snowmobiles and
motorcycles of any description
designed for either on road or off
road use shall not be operated on
private property closer than two
hundred feet to any residence, except
the residence of the owner or
operator, therefore, or any residence
to which the owner or operator might
be invited. Can there be motorcycle
noise from Building Number 2 between
the hours of seven p.m. and eight
a.m.? NO. If someone came and
started revving up their engine, for
instance, first offense one hundred
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dollars, the second two hundred fifty
dollars. How would that be enforced?
In chapter 240 under conformance
standards that were pointed out to
you by honorable Counsel from our
neighbors, they have a whole list of
sound impact ratings, both in cycles
per second in terms of how low or how
high the sound i~, but also how loud
it is. Your wappingers Police
Department certainly has that decibel
meter. and we're one hundred percent,
we want to be sure that the noise
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ordinances both chapter 166 and
chapter 240 are strictly enforced at
this site. It's to our benefit and
everyone's benefit. Motorcyclists
tend to get a bad name. I'm a biker
for forty-three years. After this
preparation I've got some photos I'd
be happy to show you. I traveled
around the world on a motorcycle, met
a pretty shy Dutch girl who's now my
wife for twenty-seven years, I have
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three sons. I'm a more typical biker
than you might guess.
I brought to you some
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information that what kind of people
are going to be coming here. This lS
from the American Motorcycle
Association. This is background, I
guess, I don't know if you call it an
official submission, it points out
most motorcyclists, sixty percent are
between the ages of forty-one and
fifty-nine. I'm right in there. I'm
fifty-seven years old. It points
out,. .i t del i neates the percentage of
women is increasing tremendously, up
to ten percent women on bikes now.
It delineates in the chart of treir
membership how many are six and over
six point eight percent, I'll be glad
I'll be able to keep riding for
another ten years. It also tells the
kinds of uses under what we do, and
it's broken down by age and kind of
motorcycles, fifteen different kinds
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of motorcycles on the page, what we
do. what we do at Fat Custom cycles,
what we intend to do are the top two
lines. They're the most popular,
touring and cruising. We don't
expect to have commuter bikes, five
hundred cc bikes, people going back
and forth to white plains, Danbury
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and the city or any of the other
uses. AS we look at the riding
activities by age group, are we going
to have people, you know, sixteen to
twenty-five, twenty-six to
thirty-five at Fat Custom cycles?
NO, probably not.
AS you saw from the previous
chart, it's a highly segmented
market. The kind of people who buy
expensive custom made or customized
motorcycles tend to be about my age,
tend to.be empty nesters in their,
let's say thirty-five at the lowest
limit, up to fifty-five, sort of the
biggest market. They tend to buy
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motorcycles that are very expensive
and they tend to ride them only on
weekends.
I used to kid that someone who
rides a motorcycle seven days a week,
rain, snow, sun or whatever, they
spend all day saturday polishing it
and sunday riding it, that's the
truth of the matter. These are
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people of all walks of life lots, of
people in everything you imagine,
doctors, lawyers, carpenters
mechanics, who use the motorcycle for
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recreational purposes only and they
use it only on weekends and only in
good weather. what impact does that
have on this particular site?
Motorcycles aren't like cars. when
you get a car serviced you'r~ going
back and forth to work, you drop it
off, the batteries in one place, .the
tires in another. You tend to do
that often. during the week. In this
case ~eople will come to this site in
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their automobiles in most cases and
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they will talk at some length exactly
what kind of accessories they're
after and so forth and expect it to
be busy on saturdays as well. It
isn't the kind of thing that don't
generate the kind of traffic and the
kind of numbers you expect for the
other segments of the same motorcycle
spectrum. Some of these are
background information, but I think
you'll find it surprising.
Another thing I needed to
respond to, there was a question here
about the boundary lines. Now, as
you are probably aware, this entire
area, this area labeled NB here
comprises ten parcels, ten plots here
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in the neighborhood business zone.
There's, of course, the shopping
center across the street, the garage
here, the deli right next to it.
There are ten neighborhood business
parcels. what is neighborhood
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business all about in planning?
Neighborhood business is designed to
deliver essentially particular goods
and services in small areas where you
pick up a loaf of bread, a quart of
milk, chinese food, there's a nice
Italian deli within the neighborhood,
the businesses tend to be destination
.........
businesses. That's to say people
come to Mike's shop, for instance,
only to come to Mike's shop to talk
about what kind of tank they want on
their Harley. They're not the kind
of businesses that rely on great
quantities of people. Because of the
way we started this procedure,
normally, you know, in hindsight I
think we were in error, we have gone
along ln good faith nonetheless, in
hindsight, if we're doing continuing
uses, no changes, we don't need the
special use permit, we don't need to
go through the whole site plan
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procedure, the planning Board and so
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forth. we started down that track,
we'll be happy to continue along that
track. Mr. Borek has agreed to make
substantial additional improvemen~s
to this. property. He's putting .in
substantial amounts of landscapi~g
along the front here, right up to the
easement line. we're putting in pin
oaks' and junipers. On Mr.
Simonetti's side of the property
we're putting in evergreens to
provide additional screening in this
area. we propose to do nothing
whatsoever in the R-40 rear part of
the building. we're also going to
again, even though it isn't
technically required, we're going to
pretend that all three of these are
new uses in relation to parking, and
you'll see on the charts here we have
calculated according, as if we were
doing this brand new, as if we were
building it tomorrow, we have
calculated the number of parking
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spaces required forty spaces, instead
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of that we're actually providing
fifty-five parking spaces, including
the requisite handicap spaces. we're
distributing them around the three
buildings roughly equivalent to the
uses for those three buildings.
plenty of parking. will we have any
parking in the R-40 zone? No, we
will not. That whole area will
simply remain there.
I~ terms of the initial
variance, the interpretation of the
letter from your zoning
administrator, that's something where
we need to sit down and agree that
there's a middle of the road approach
here that meets the requirements of
your zoning code, but that does not
include special use permit, three
special use permits. There's a
substantial contradiction here. On
the one hand, both letters December
6, 2005 and August 1st, 2005, refer
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to the use of preexisting legal
conforming use on the site and then
going ahead to say it can be allowed
with a special use permit. well, if
it's a legal non conforming use under
your code, no special permit is
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required. AS to the use for the
proposed motorcycle dealer, we agree
that that represents a change of use,
if we go from an automotive use or
workshop cabinet maker use. and then
we go to a retail category, we agree
that that's a change, we'll meet new
codes in all respects on that
Building Number 2.
A question came up whether ~ike
would be driving his motorcycle to
work or a horse or car or both,
whatever, we have contradicting
letters saying yes, he will, no, he
wouldn't. Don walsh asked him to
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write a letter saying no, he
wouldn't. My own feeling as a biker,
if someone lives on a farm and they
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want to take their horse to work,
that's a good thing. If you own a
motorcycle shop, it would be
unnecessarily restricted to ask the
owner of a motorcycle shop not to
ride a motorcycle to work. It would
be equally unreasonable to say a car
dealer can't drive a car to work or a
boat dealer can't commute across his
lake from his house to his marina.
That's again everything that can be
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talked about. It s something I would
rather see swept from the table. At
the same time, we would like to work
together with the neighbors, sort of
put you out of the difficult
situation of the ladies and gentlemen
in the middle and try to see what we
can do to be assure the 5imonettis
and the Parsons and all of the other
neighbors are happy with this
proposal. On the one hand, it's
something that shall be permitted.
It's as of right. we're not putting
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motorcycle shops on trial here. Your
code says very clearly they are
permitted. It's not a matter of
discretion. They shall be permitted.
on the other hand, we still in good
faith want to work with the neighbors
to make sure they're happy with the
proposal.
So, in that spirit, I've passed
out my business card and I invite any
and all of you that would like to
talk further about this, I'll be
happy to buy you a cup of coffee or
beer and try to work this out in a
friendly way. I think the motorcycle
business, it's a great business, it's
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growing tremendously over the last
thirteen years, gone from a quarter
million motorcycles a year up to one
million as of 2004. 2005 is the
third over one million sold year in a
row. Far broader, serving a far
broader public. Everybody. thinks
about young kids on bikes or they
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think about James Dean in Rebel
Without a Cause or Marlon Brando On
the waterfront. That isn't the way
it is anymore. It's an upscale kind
of thing. There are broad -- there.
are some complete idiots that ride
motorcycles, I'll grant you that.
so, I think that we'll have some
speci fi c wri tten
I wanted to, before I finish
up, we have looked at the letter that
was written by your Town Attorney,
Albert P. Roberts dated July 19,
2001. we have also received the
three Affidavits and we filed those
that were submitted to the Town in
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2001 by J & B Parsons Incorporated,
by A & J Parsons Incorporated and by
piqwon Incorporated. That letter
from Town Attorney Roberts was in
response to those three affidavits
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and letters dated March 23rd, 2001
from Richard o'Rourke, who
represented piqwon. Town Attorney
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Roberts basically said, delineated
the exact uses at that point in time
and said that these uses, I
respectfully submit the above is a
substantial departure from the
proposal previously submitted, the
zoning administrator has determined
that the m~ltiple use of this site in
the above fashion would be consistent
with the code of the Town of
wappinger, either as a continuation
of non conforming uses or as
permitted uses. There was something
in the minutes where one of the
attorneys was objecting to the idea
of there being mixed uses on one
site. zoning codes prohibit mixed
uses on a single site. However,
again, we did not create this. These
have been complimentary uses that
have been going on for well over
fifty years. They are preexisting
non conforming uses and they will
continue and the Town Attorney
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certainly agrees that that is proper.
we'll file an Affidavit delineating
the uses that have occurred on the
property since the day we bought it.
It is our contention that we have
indeed continued those uses, those
buildings have been in use for the
bulk of the last two years. Have we
exceeded the statutes of limitations
on a non conforming preexisting use?
NO, we have not. The clock is still
ticking. That's our position on
that.
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At this point I think I've
covered the bulk of it. Again, we'll
submit an Affidavit to you showing
what the uses have been since we
bought the property, we'll show how
they have continued. we'll respond
to the letters that we received just
this evening from the other
attorneys. We invite the other
attorneys to sit down with us and
work this out. At this time I'd like
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2 to do two things. First, if I can
3 entertain questions from the board
4 and then I would yield the floor and
5 allow the public to speak. I would
6 1 i ke to reserve the right after the
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public has spoken to come up another
five minutes.
MR. WARREN: Board members have
any questions?
MS. MCEVOY-RILEY: You said
there's been uninterrupted use since
19577
MR. FRY: You have.in your
file, we submitted a list of
documents to you. The first use that
we have was from the Affidavit of Mr.
Parsons, who's present this evening,
and
MR. McEVOY-RILEY: That takes
us to what years?
MR. WARREN: From 1947 until
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1977 .
MR. FRY: The next Affidavit
from Mr. Arthur Lieberman and that
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takes us from 1979 to 1998. The
third Affidavit is from Mrs. Elder,
Grace Elder, the widow of peter Elder
and that takes us from June 1998
until 2001. In the year 2003 another
document was issued by the Town to
piqwon Incorporated, August 21st,
2003 delineating the certificates of
occupancy and the numbers, and again
we have submitted this to you from
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your file.
MS. MCEVOY-RILEY: Didn't the
IRS take this property over?
MR. FRY: That came later.
MR. BOREK: The IRS never took
over the property. The IRS had a
lien on the construction equipment.
As I foreclosed on the properties and
they gave me the deed in lieu of
foreclosure. I was the lender to
this prop~rty. I foreclosed on it.
I cleaned it up and during that
period of time I leased it back to
them, after they surrendered the
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deed. They fell behind in the
payroll taxes, the construction
company, Gals piqwon, was the owne~
of the property, the tenant was Gals,
the tenants, and Piqwon had the same
beneficial owners. Gal's went out of
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business. The IRS asked for a period
of time to auction off the equipment.
I went into a joint agreement with
them as to how to sell it. we
refurbished it, brought in an
auctioneer and had a sale. From that
point my superintendent went into
Building Number 3 and we have been
using it for a storage yard for the
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about two years ago I took over the
deed, approximately. I don't have
the files with me exactly. Let's say
it was the end of or the middle of
'04 or the end of '04 I took over the
deed then.
MS. MCEVOY-RILEY: The IRS
sale.
MR. BOREK: The IRS sale was
about a year ago.
MS. MCEVOY-RILEY: I didn't
realize that.
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MR. BOREK: After the IRS sale,
I went on the program to clean up the
place, so I hired two contractors to,
you know, take everything out, clean
up and throw out.
MR. DELLACORTE: In
clarification, the IRS sale was only
against the lien for Gal
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construction, not against the site
itself, not against the ownership of
the site, which was yours.
MR. BOREK: Yes.
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MR. DELLACORTE: since what
dates did you buy the property?
MR. BOREK: Approximately two,
two and a half years ago. They
stayed as a tenant for awhile, then
they were forced out of business by
the IRS. The IRS had closed them
down, Gal's Construction.
MR. FRY: What about in front?
MR. BOREK: It's been
continuous, there's a car company
called wheels-R-uS that have been
there for twenty years. There are
two tenants that are occupying,
besides wheels-R-uS, there's a
mortgage company THM Management or
something. He's been there for ten
years. There's a lawyer, Rivera,
who's been there a long time, you
know, well before I came on the
scene, and there's a tenant upstairs
that does office work.
MR. FRY: wappinger Automotive
is upstairs.
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MS. McEVOY-RILEY: You bought
this between october of 2003 and
March of 2004 sometime?
MR. BOREK: I think it was '04.
MR. FRY: Even though the
ownership of the property changed,
the usage of the building continued,
as Mr. Borek noted.
MR. DELLACORTE: wappingers
Auto or wheels-R-US
MR. FRY: Are two separate
entities.
MR. DELLACORTE: Both of them
are automobile.
MR. FRY: Yes, I don't know a
lot about them. I believe it's
wholesale used car sales.
MR. BOREK: wheels-R-US,
probably Parsons knows better than I,
they go to auctions, they buy the
cars at the auctions, they bring them
to 228 Myers, they do whatever they
do with it and then they resell it to
car dealers who have a need for it.
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For example, if they go to an auction
and buy a Toyota, they will call up
after they get five or six Toyotas,
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go to a Toyota dealer, sell him five
or six Toyotas so the Toyota dealer
doesn't have to go to the auction to
buy product.
They also service a lot of used
cars. They do two hundred cars a
month, I believe, in and out. .
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MR. DELLACORTE: This has been
for ten years?
MR. BOREK: I would say for
longer.
MR. PARSONS: Less than ten,
and they don't do any service work.
what they do is just the opposite of
what he said. They go to dealers and
buy ~he surplus used cars and sell
them to other dealers. It's a used
car wholesale type of thing. They
don't do any service work. They
don't have the service area to do
service work. They simply buy and
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sell cars.
MR. FRY: Are they still
detailing them or anything, cleaning
them up?
MR. PARSONS: They don't do
anything with them.
MR. DELLACORTE: They have been
conducting business as wheels-R-US?
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MR. PARSONS: I don't know the
official name. They have been there
less than ten years.
MR. DELLACORTE: Five years?
MR. PARSONS: Five to ten.
MR. DELLACORTE: They have been
continuously working as wheels-R-us7
MR. PARSONS: Yes. NO one is
questioning that. That hasn't been
an issue.
MR. FRY: There's a small, if I
may, there's a small issue I didn't
address having to do with the metal
shed over here. So everyone can see
it, we removed a you see the light
dotted line here showing two sheds?
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The Town Attorney Roberts refers to
four sheds on the property and now
there are only two sheds on the
property. we removed these two
sheds. Now, this long metal shed
here we are seeking a variance, it's
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thirteen feet off the property line
or thirteen point six and should be
twenty.
There are several ways we can
deal with that. one, this would be
partly, you know, something we'd be
happy to do if Mr. Parsons wishes, it
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screens, it provides screening,
there's some vegetation here, there's
a fence, this shed screens the view
of the rear properties from Mr.
Parsons' home and the home of Mrs.
McCort here. So, if Mr. parsons
wishes, we can certainly leave it
there. The minor variance
requirement, .if Mr. Parsons would
like us to leave it, we'll leave it.
In the alter.native, it's in good
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condition, it's a metal shed, it
screens refuse. That's where we keep
the refuse on the property so it
can't be seen from the street. We
can move it six point four feet
inward, we can unbolt it and move it
up further, that would negate the
necessity for that variance. In this
case, personally, I don't feel it's
doing any harm where it is. If Mr.
Parsons is happy to have the
additional screening, we'd be happy
to leave it. That's something we're
flexible on.
In terms of the boundaries
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here, it appears the boundary line of
property very clearly does not follow
the fence line of the property. I
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20 asked Don wals a out that just this
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22 was doing. The clear intent,
23 obviously, was when this property,
24 remember, this is all in one hands,
25 this property, when it was
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subdivided, the clear intent was
separate the lots in front from the
property, in back, separate these
three properties from this property.
The intent probably -- they probably
asked the surveyor, just lay it out
along the fence line and then give me
a property description. well, you
can see there are minor
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encroachments, looks here as if Mr.
Simonetti owns ten feet of our
property, looks like Mr. Parsons owns
a little piece of the roof on
Building Number 1. we're happy to
leave the minor encroachments as they
are. Our title company has
guaranteed that they will defend the
boundaries to the extent necessary.
On the other hand, if the board
wishes for us to get the title
companies and surveyors together to
adjust those boundaries in such a
way, in a fully legal way to remove
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what appear to be encroachments,
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we'll be happy to do that also. You
know, a couple of places looks like
they got it right or got it very
close, other places it's bad
surveying or two surveyors' names
I've seen noted here, there's
something not quite perfect.
MR. DELLACORTE: Mr. schwartz,
I have a letter dated February 28,
2006, I think that's signed by you.
It's hard to tell on the bottom.
MR. SCHWARTZ: I signed it like
a movie star.
MR. DELLACORTE: A letter
written at your request to clarify or
restate our plans, plans for the
premises, moving onto the next
paragraph. On my behalf and]
Dewilliger we'll not operate a
motorcycle repair facility. Our plan
is to only sell motorcycles and
equipment for the same, quote.
The question that I have about
that is, do you have a lease right
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now, will you be signing a lease or
do you have one in front of you?
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MR. SCHWARTZ: we initially
signed the lease. The lease has been
held up because of this situation.
MR. FRY: The rent has been put
in escrow.
MR. SCHWARTZ: we haven't paid
any rent. The escrow account is
frozen pending, you know, what goes
on here will determine everything.
MR. DELLACORTE: The reason I'm
asking is because we would- like to
see in the lease, this will not be a
motorcycle repair facility.
MR. FRY: Let me address that,
if I may. It relates to the hand out
I gave you. when this law was
changed in the year 2001, both the
motor vehicle repair and the motor
vehicle sales clauses were changed
and they added to car repair and car
sales the same clause that said
motorcycles can be sold at a car
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repair facility and motorcycles can
be sold at a car sales facility. We
believe that the intent was that you
could repair motorcycles under -- I
misspoke, not that they can be
repaired and sold at those
facilities, but under those headings
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that the retail, the intent was to
allow motorcycle sales and repairs as
small businesses in small premises,
in shopping centers and so forth, in
any retail premises, both repairs and
sales as is customary and normal, but
we believe the only reason that ~hose
two clauses were the same was that
someone was 'instructed, okay, same
clause is fine, change the word sale
to the word repair. That didn't
happen. The word sale is under the
sale section and instead of the word
repair, which is in every other
clause in that section, it says sale.
so, what we have, again, we're still
working all this out, our long term
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intention is certainly to have a
tenant at his own wishes who can sell
and repair motorcycles and sell
accessories and clothing and helmets
and so forth. That's the longer term
intention.
under your zoning car -- under
267, if it's done under the auspices
of -- motorcycle sales are done under
the auspices of 267, that's not
permitted in an NB zoning.
Motorcycle sales are permitted under
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240-70. So, at this point, yes, you
could legally open a motorcycle sales
facility, but not yet open a
motorcycle repair facility, and the
easiest way for us to handle that, we
can look for legislative intent, find
out what the fellow from Frederick P.
Clark had in mind, if this was indeed
and error. You have the authority as
a board to say, it seems reasonable
to us to provide' a variance that will
allow Mr. schwar'tz or any other
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applicant to both sell and repair
motorcycles in this case we'd like
specifically on this site. we think
that's one reasonable approach we
would suggest to you.
MR. BOREK: whether it's a
motorcycle or a jet ski or snow
thing, for a facility not to be able
to repair something, no one is going
to continue to go there. You don't
buy a car and if it needs a spark
plug they say, I can't fix it for
you. That's not like a hundred
dollar cell phone, they throw it out
and give you a new one. I think it's
rather unfair for us to put Mr.
Schwartz in that position, because
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for me to go through this year an
extreme cost, I would hope to have a
tenant that would be in business for
a long period of time. If I handcuff
him, he's not going to be able to
survive. whether it's this tenant or
anyone else, our intent is to have a
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fair^ affair system.
MR. DELLACORTE: why do we have
a letter saying we'll not operate a
motorcycle repair facility just for
now.
.........
MR. SCHWARTZ: If I might speak
about this?
when Mr. walsh had spoken to me
about this particular code, and I
don't know the code numbers, we all
know we're talking about this code,
that code makes mention that under
sales of the items for a motorcycle
they also need to be maintained and
installed, so if I sell an item and
something goes wrong with it, I have
to be able to repair it, otherwise no
one is going to come to me anymore.
under that guideline and the way that
reads for retail use, repair falls
into retail use, based on the way
that code was written. That's why
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the letter was produced in that
fashion. I'm not a lawyer, don't
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pretend to be a lawyer. I went by
the advice of the lawyers and that's
why the letter came about. we're
just trying to adhere to what the
Town, you know, wants and I'm trying
to get on with business.
MR. FRY: We wanted to be sure,
I can speak for Don on this, I asked
hi m exactl y that, :we want to assure
this board, and we ask Mike to assure
this board whatever you grant
permission to do we'll do and no
more. we'll not break the law. If
you decide he can sell, but not
service, we'll stick to that. But if
you decide we can both sell and
service motorcycles, well, that's the
most reasonable intent. We're
looking at this as something we can
talk with your permission and your
referral to your planners and do
whatever we can to work out.
MR. WARREN: I'm still
confused. I hear words assembly,
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such as sales, I hear words such as
repai r.
MR. DELLACORTE: Maintain.
MR. WARREN: I haven't heard
yet tonight, is it going to be a
repair shop? Are you going to repair
or not repair?
MR. FRY: Let me try to clarify
that.
It is our long term intent, . .
speaking both asa landlord and
tenant, to both sell and repair.
That is our long term intent. That's
what we'd like to ask this board to
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allow us to do. If, as an interim
step we have to settle for half a
loaf, we'll do that, while we're
waiting for the other half to be
baked.
MR. DELLACORTE: If it says
we'll not operate a repair facility,
this letter should be withdrawn or
o
amended to say at this time.
MR. FRY: Yes. We're going to
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need to amend a number of things, we
understand, at the discretion of the
board, you will not close the public
hearing this evening, you'll want to
consult with your professional staff
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and we would request the opportunity
to also do so at our expense,
naturally to seek clarity. Once we
. have clarity on that and we have
talked with the neighbors to make
certain they're happy, too, with the
plans, we'll be able to come back to
you with a more coherent proposal,
you're absolutely right.
MR. DELLACORTE: The letter
says, we'll not yet. Your intent is
to?
~
MR. FRY: Exactly. whatever,
it is a little bit ~f a moving
target, for which I apologize. We're
learning as we go along.
MR. DELLACORTE: unrelated to
this, another subject
MR. CAVIGLIA: I wanted to
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clarify something. I'll wait.
MR. DELLACORTE: Another
question for Mr. schwartz. Mr. Fry
is a motorcyclist he says.
MR. FRY: I have the pictures
to prove it.
MR. DELLACORTE: with the hand
outs about the American Motorcycle
Association types, can I ask you what
type of bike, motorcycle brands will
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be going to your shop mostly?
MR. SCHWARTZ: The majority of
the bikes are the custom brands or
custom Harleys. There's a lot of
different brands out there, Iron
Horse, different companies like that,
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the high dollar bikes"
MR. DELLACORTE: Would you say
the louder bik~s?
MR. . SCHWARTZ: I I m not goi ng to
lie to you, a lot of guys like loud
exhaust systems. The EPA guidelines
came down pretty stiff for the 2006
emlSSlons. people without pipes are
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at the mercy of the law. It's not my
intent to try to control that. Yeah,
a lot of guys like the loud bikes,
but also the Japanese bikes are
somewhat louder than some of the
Harleys out there.
MR. DELLACORTE: I'm not
picking on one brand.
MR. SCHWARTZ: I've never had
any relations with a Japanese bike
and they are very very loud, they're
annoying, where the Harleys are very
loud and not annoying.
MR. FRY: BMW's are the best
sounds.
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really see it, no offense, I don't
see what he's saying compared to what
you're saying.
MR. SCHWARTZ: The industry, if
you watch it on TV, it's an
intriguing industry to the older
crowd, because of the money involved
some of the bikes get into two
hundred thousand dollars, you got a
lot of corporate people buying the
bikes and putting them in show rooms.
I travel to different shows around
the country. It's amazing just to
see all the celebrities and the
motorcycles that sit in the shows.
Some of these bikes don't get ridden,
they sit there. walk into wachovia
Bank, the main office, there's a
chopper sitting in the showroom right
now, because they invested money with
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the company.
MR. BOREK: How much was the
bike the fellow who's the tenant in
the front?
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MR. SCHWARTZ: The bike was
fifty-three thousand dollars.
MR. FRY: The two you have
right now on your showroom floor?
MR. SCHWARTZ.: One thi rty-three
thousand and the other twenty-three
thousand.
MR. FRY: It's something
important in answer to the question.
MR. DELLACORTE: I'm trying to
figure out from what you're saying to
what I'm envisioning, that's all,
nothing else.
MR. FRY: He'll be selling two
kinds of motorcycles really,
basically Harley -- it won't be a
franchised Harley Davidson dealer
that requires millions of capital
investments. He will supply lots of
accessories, parts, saddle bags,
coffee cups, everything for Harley
Davidson motorcycles. In addition to
that people will have the ability to
order from Mike something that looks
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like a Harley Davidson, has an s&s
motor and drag specialties frame.
Basically they're kit bikes and you
bolt them together. It's a good time
to address. What about the
manufacturing, are you fabricating?
We need. We can't have a
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manufacturing facility an NB zone.
This kind of bolting together of
parts, wheels, handlebars, motor,
transmission, frame~ is something
that has been accept~d essentially
under case law and I"!ationwide,
something this is bolting it
together. rkea, they will screw the
furniture together for you, they're
not a manufacturer.
o
MR. SCHWARTZ: Can I say
something? In a nutshell, I don't
know if everybody else can do what I
do, I can't be a lawyer, I do
something with the motorcycles that
not everybody can do. You buy a
bike, you don't even know how to put
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a screw in, you come to me and say
bolt this on for me, Mike. There's a
lot of money in the industry. I'm
riding the train right now, it's a
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great business, that's all that comes
down to. Not everyone, everybody can
do this, they buy the bikes and ride
them.
MR. DELLACORTE: I'm trying to
understand.
MR. FRY: Get an idea what kind"
of person is going to be coming,
Hell's Angels types?
MR. DELLACORTE: I watch OC
chopper.
MR. SCHWARTZ: There is no
money with the scraggly* looking guy,"
even the Hell's Angels. I know a lot
of Hell's Angels, they're not
spending th~ money.
MR. DELLACORTE: I have a good
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idea.
MR. FRY: I had a customer in
Tarrytown, he was well known, it was
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Malcolm Forbes, he came with Liz
Taylor and shopped on Main Street in
Tarrytown and buy antiques and go
back to the City. Malcolm Forbes is
a famous motorcyclist. He was
instrumental, he was at the front of
the rallies, raised millions for
charts, it's the best known biker.
Today is Jay Leno, he has twenty --
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he has the kind of bikes fabricated,
an enormous stable, mostly Harley
Davidson or look alikes, are they all
going to be that upscale? There are
some people
MR. DELLACORTE: I think we all
have a good idea about motorcycles
and motorcyclists, I'm one myself. I
have a good idea right now. Thank
you.
MR. WARREN: Any other
questions?
MR. CAVIGLIA: I want to
clari fy some thi ngs. . Any issue that
Building 3 up to now at least was
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accessory use to Building Number 1?
MR. FRY: It has been a
mixture, a, purely in the beginning
under Mr. will parsons, certainly it
was a repair garage that repaired
cars and were sold in Building Number
1.
MR. CAVIGLIA: That's accessory
use. was there ever a period of time
it wasn't accessory use?
MR. FRY: Yes. Then under, I
believe, it was piqwon that rented
it.
MR. BOREK: No. piqwon was the
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03-28-06 wappingersl
16 landlord, but the tenant was in the
........ 17 front building and then they occupied
18 the other two buildings.
19 MR. CAVIGLIA: The tenants of
20 piqwon was using it also as accessory
21 use to Building Number 1 and 2.
22 MR. BOREK: That's correct.
23 MR. CAVIGLIA: There came a
24 time where it was.le~sed back after
25 the foreclosure to piqwolJ and what
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was that used for then?
MR. BOREK: when I took over
the property?
MR. CAVIGLIA: Right. You
leased it right back to Piqwon.
MR. BOREK: Gal's construction,
who was the existing tenant, Piqwon
was the landlord, Gal's construction
had the second floor and the other
two buildings and the land, they were
all accessory uses. when they went
out of business, I put parts of the
second floor, I had a little office
there.
MR. CAVIGLIA: which building?
MR. BOREK: Building Number 1
and Building 3, which is still in
existence.
........
MR. CAVIGLIA: There was an
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office in Building 3?
MR. BOREK: NO, in Building 3 I
used it as a storage and my
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construction, my super, Frank Adamo,
uses it as a storage area. He uses
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the front building as his office
also.
MR. CAVIGLIA: AS a storage
area. It's been used for that
purpose for how long.
MR. BOREK: sinc~ we got the
property somewhere in "04.
MR. CAVIGLIA: Before that
when
MR. BOREK: Gal's construction
occupied it.
MR. CAVIGLIA: They used it
for?
MR. BOREK: For their office,
estimating, drafting and bookkeeping.
MR. CAVIGLIA: used it as an
office and used for storage. NOW
we're going to be using it for garage
repair?
'-
MR. FRY: For two purposes,
automotive -- automobile repair with
Bill Laparo and leased for the
following seven months for Mr. Adamo,
who will continue to use it for Mr.
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Borek's storage of material. They're
going to share the garage until Mr.
Leperi takes over all of Building 3
exclusively for automotive repair.
And Mr. -- his offices will continue
to be in Building Number 1 as well.
He'll be using parts of Building
Number 1 as an office and all of
Building 3.
MR. CAVIGLIA: could we
ascertain at some point by the time
of the next meeting when the date
was, I guess, that it was deeded over
to Mr. Borek?
MR. FRY: Yes, we can do that.
One thing we want to address, it's
good to address it at this time, in
terms of racing the clock, in order
to preserve the two year window under
the conforming, I happen to see
looking at some case law, I happen to
see that what would happen if the
approval process dragged out instead
of being nineteen months, it's
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twenty-eight months because of the
governmental approval process, would
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we lose our rights for grandfathering
under your two years? Your code is
very clear. The code says for any
reason whatsoever, if it's two years
you lose the grandfather clause.
That's been modified, it's my
understanding, by case law, to
prevent exactly that from happening
in order, once you file your papers;
which we did, we'll be within the two
year period. If the approval process
takes ten years, we stopped the
throbbing clock, we have stopped the
clock?
.........
MR. CAVIGLIA: If you want to
submit that?
MR. FRY: surely. I should
also, since I'm not an attorney,
Jeffrey shumejda, is our attorney and
I'll do what I can to facilitate
between attorneys and so forth. I'm
not an attorney.
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MR. WARREN: I'd like to open
it up to the floor.
MR. PARSONS: Building 3, when
pi qwon , because that property I still
had the mortgage on it, I'm very
familiar what goes on there, it was
in 1998 they took over the building
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and used it for storage, the two end
buildings to service their own
vehicles. It was never an automobile
..........
repair shop. It's not grandfathered.
It was never a repair shop since
1998.
MR. FRY: I know. It's not a
debate. It's a good point.
MR. PARSONS: . It'S a factual
point.
MR. FRY: It came up' with the
factual use of the IRS reports.
MR. PARSONS: . The automobile
repair shop is where people come and
get the automobiles repaired. He
took care of the cars and trucks, not
the bulldozers. They wouldn't fit in
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there.
MR. FRY: The local law doesn't
make a stipulation. I agree with Mr.
parsons, I don't contradict him at
all. I did look under the local law
to see if there's a distinction
between a repair garage that serviced
the public or a place where a
contractor services only his own cars
and trucks or a place where the IRS
is cleaning up trucks and so forth,
does it have to be public in order
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for it to be repalr facility under
your code? NO, it doesn't. I can
rent it myself and fix only my own
cars. so, while I agree with what
Mr. Parsons is saying in terms of it
was used for only the repair of
piqwon's own cars and trucks, but not
heavy equipment, that has no effect
under the law.
MR. PARSONS: To argue that
point, if I had a big backyard and
had ten cars and repaired them all
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the time just for myself and then I
decided to open up an auto repair
shop, you wouldn't be allowed to do
it just because I fixed cars there.
That's what they did, fixed their own
vehicles. Nothing in the ordinance
which I'm familiar with that says if
you fix your own cars in your
backyard that automatically allows
you to become a repair shop.
MR. FRY: That becomes
.......
repairing one's own vehicles in a
commercial property. Having any
repair in a residential backyard is
an entirely different thing and is
either very severely regulated or
simply forbidden in many residential
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zones, there's a limit you can have
in a private residential zone. You
can repair your own car usually only
in your own garage, sometimes in your
own driveway, but it is very severely
limited. The law makes it a clear
stipulation between repair of
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vehicles in commercial prop~rties and
repair of vehicles in residential
properties.
MR. PARSONS: To disagree with
that, my house is in neighborhood
business. If I repair cars in my
backyard and I have three, say I have
six or seven, and I'm zoned
.........
neighborhood business, then what he's
saying is, I can get a repair shop in
there and go to it where it's not
allowed. I don't want to argue that.
I spoke my piece and that's it.
MR. ADAMS: I have a three-page
letter I was going to submit to you.
I heard the applicant say, I don't
have a coherent application. I'm not
going to submit something until I see
submitted to you a coherent
application. It's clear the thing is
changing as conversations take place.
Until we have a final application,
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r'm reluctant to address this. I
agree with Bill's analysis, even
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though r'm a lawyer. There's a
sharply different view of the world
here, the testimony tonight has
clearly established Building Number 2
is going to be used for motorcycle
sales, true. There may be some
incidental or subordinate repair
work, a simple attachment of an
assembly. There is no question the
paramount and principal use of that
building will be for sales. Motor
vehicle sales are not permitted in
the NB zone. You have to wrestle
with the issue as we evolve in the
application process just because you
have loose language under 240-70 says
that repair garage -- you can have
sales. We have a sales garage where
there might be incidental repairs.
The principle use will be sales, not
repairs. It is not a permitted use
in the zone. That's one of the
issues I'll frame for you tonight
will have to be considered by you.
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The testimony you adduced was very
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useful in establishing the paramount
character of that use, which is a
sales character, not anything else.
The other thing I want to
suggest to you is that I don't know
what you're doing about environmental
review, that seems to have been lost
in the process. The applicant has
clearly established tonight the issue
of noises indicated we're going to be
selling, as I heard it 'correctly,
motorcycles that have louder, rather
than less louder exhausts or
whatever. I think there are
definitely noise impacts here. There
has to be an appropriate
environmental review to consider
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those impacts and other impacts. I
don't know whether you can do that on
your own or a coordinated review with
the planning Board, because there's a
simultaneous application with the
planning Board. Maybe the
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consultants will work that out. I'm
happy to hear there will be the
participation of some professional
consultants here, it might bring the
needed structure in order to the
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application process. I don't see it
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right now.
I have in my hand a number of
applications dated December 8, '05.
I'm trying to clarify, are those
still the applications before this
board or are those going to be
amended?
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MR. FRY: Those will be
amended. Yes, they will. I think
your position is reasonable. In good
faith, we did everything we could, we
came to your offices to get your
laws, we got a law that was
incomplete. In good fait~- we filed a
great number of records and learned a
lot more about the property. The
application is not -- it will be
revised with the input of the
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neighbors and so forth.
MR. ADAMS: Lastly, to suggest
one of the uses, that's to say the
motorcycle use is on a zero acre lot
totally ignores the reality of the
situation. The building is seventy
by seventy. The building has to have
various yards, notwithstanding the
language, the front yard, side yard.
Building Number 2 will have to have a
certain sized lot for zoning
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purposes. So, to suggest it's zero
acres is not a correct analysis.
with that, I'm going to reserve my
further comments until we have some
revisions. Maybe we can work out a
time table today so everybody knows
what time table we're following. I
don't agree with this. I think your
ordinance is correct, as .stated, I
don't think there's any case law that
suggests -- grandfathering to the
extent it's even applicable here. I
think it is. I think that's a
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serious issue is told simply because
of the application process.
MR. SIMEONE: very shortly
Frank simeone, on behalf of william
Parsons.
""".
I brought a summary letter for
submission tonight under. The
circumstances, I will not submit it.
I would like to reserve my rights
once an application is complete to
participate further in these
proceeding. I also am concerned
about the needs for some SEQRA
findings here which I believe
tonight's testimony has made it even
more clear as to the need for it. I
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18 would point out with respect to the
"'-" 19 1 oca 1 law that
your secretary was
20 kind enough to send me a copy of
21 1 oca 1 law 2005. One of the findings
22 on the EAF form is that there would
23 be no environmental impact on any of
24 the properties effected by that
25 change 'by virtue of that change.
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'2 Tonight's testimony, and where we are
3 here indicates that if we gi ve the
4 interpretation that Mr. Fry intends
5 to give, that's clearly not the
6 indication. That issue has to be
"-" 7 revisited?
8 MR. FRY: May I address, just
9 to wrap it up?
10 MR. WARREN: very short,
11 please.
12 MR. FRY: In terms of the SEQRA
13 process, I write and draft
14 environmental impact statements. We
15 filed a short form EAF on the
16 process. The justification is ln the
17 papers there that we're building
18 nothing here. This property has
19 existed as is with those buildings
20 for well over fifty years. AS to the
21 single impact that I've seen
22 delineated, we did ask our
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environmentalist to delineate the
wetlands, even though, again, we're
building nothing, as to the single
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impact of noise, because you do have
the two noise ordinances in your law.
we think that's adequately dealt
with. We don't want this, nor any
noise, to become a nuisance and we
believe that we have adequate
measures to do so. We ,don't feel
that the long form EAF is required,
but that's something for you to
decide. I certainly agree with the
counselor Adams as to -- I've had a
chance to briefly mention it to the
board's special counsel, Mr.
caviglia, as a philosophical
constructed idea there's zero space
being used for what is clearly
allocated, for what is clearly a
building, I agree we need some sort
of delineation of side yard, front
yard and so forth. I don't think
there's going to be a problem with
conformance. I agree with the need
to split up the site in some
reasonable sort of way. In short of
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subdividing it, to delineate who does
what, where and the idea, I agree,
existing sites like this, yeah, it
needs to be divided up as the board
finds reasonable and proper so you
know how much is devoted to what use.
MR. WARREN: Thank you.
Anybody else entertain a motion?
MR. CAVIGLIA: what about the
time table? We really can't move on
it until we get the amended
application so we all know what we're
talking about hopefully som~ sort of
final format, otherwise we'~e not
gOlng to get off the indictment.
MR. BOREK: The next two weeks
we'll give you the amendments and
we'll then probably be asking for a
vote. part of the reason that we're
here is that I believe the Town
misinformed us and hopefully we'll
get through this EBT and this will be
done and that will be the end of the
story.
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MS. MCEVOY-RILEY: April 11th,
we'll have all the stuff April 11th
meeting. we'll have all the stuff
pri or.
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MR. BOREK: Yes.
MR. FRY: It would be useful
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for us to meet with your consultants.
we'll be happy to pay the fee. The
representative from Frederick P.
Clark & Associates, in order to get
their input. Your consultant is
acting strictly on your behalf. It
will be helpful to all of us to
wrestle this alligator to the ground,
so to speak. I see that as a first
step. If we can meet ASAP with
Frederick P. Clark based on this,
their input, we can quickly amend the
application with their advice and the
input of all the others here. And
I'll shape that application. That
will be something acceptable, then I
would suggest that I don't see that
happening in the next two weeks, but
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2 I do see that all being possible
3 within four weeks.
4 MS. MCEVOY-RILEY: Talking
5 Apri 1 25th?
6 MR. FRY: I know Mike looks
7 crest fallen. I know everyone is
8 busy. I know the consultants are
9 busy. I work seven days a week,
10 twenty hours a day if I need it. I
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think it will be helpful for the Town
of wappingers to have the input of
your professional to you so that we
can help.
MR. WARREN: I should have
brought it up earlier, the posting of
an escrow account.
MR. FRY: we're prepared to do
that this evening. I believe the
amount '--
MS. MCEVOY-RILEY: How much do
. you think you should post?
MR. FRY: Three thousand seven
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hundred fifty dollars. Mr. $orek
will leave a check for you i~ that
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amount this evening for your
consultants.
MS. MCEVOY-RILEY: April 25th?
MR. DELLACORTE: Make a motion
to adjourn the public hearing.
MS. MCEVOY-RILEY: Second that.
MR. WARREN: All in favor.
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2 CERTIFICATION
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5 This is to certify that the foregoing
........ 6 is a true and accurate record of the meeting
7 as taken and transcribed by me.
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Joseph Jacoby
11 Court Reporter
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